Today’s decision is a helpful example of the Court’s approach to “contempt proceedings”. Below are 7 essential points to keep in mind for contempt proceedings.
The case also draws interest due to its protagonist; the very well-known and highly regarded orthopaedic surgeon, Dr Al Muderis. And yes, he has been visited by Prince Harry of Wales.
The case
Al Muderis v Duncan (No 4) [2017] NSWSC 1858 (Rothman J)
Link to decision here:
Facts
Dr Muderis
Before the legal commentary, let me indulge in some information about Dr Muderis.
Dr Muderis is almost a household name in Australia. He is even known to the British Royal Family, having been recognised by Her Majesty Queen Elizabeth II for exceptional medical services to a British Soldier as well as visited by Prince Harry of Wales.
I personally met Dr Muderis at a modest gathering of the Sydney based “Amnesty International Book Club” in 2016. We had read Dr Muderis’ inspiring autobiography, Walking Free, and Dr Muderis kindly gave up his evening to talk with us in person. The room was awestruck; his life story is beyond remarkable. Read it.
Dr Muderis is a dedicated human rights activist. Much of his calling and dedication to Human Rights causes stems from his origins; he was born in Iraq and became a surgeon under the regime of Saddam Hussein. In Walking Free he narrates his incredible life story including his experiences in Iraq and as a refugee in the Australian immigration detention system and his medical career in Australia. Again, read it!
The litigation
Unfortunately for Dr Muderis, in recent times, he was subjected to what has been described as an unequivocal “vicious” campaign of harassment by a former hip replacement patient and that patient’s brother, including the publication of multiple offensive websites and nefarious sprays on Facebook, YouTube and Pinterest along with menacing death threats.
In June 2017, the Court found that the defendant brothers had engaged in “a most vicious and vituperative series of publications” that “vilified” Dr Al Muderis (Al Muderis v Duncan (No 3) [2017] NSWSC 726).
Having regard to Dr Muderis’ exemplary character, it is no surprise that even within litigation, he was lauded by the Court as being the “perfect plaintiff” who is “involved in charity, works for the Australian Defence Forces, gives of his time and money for persons who are less fortunate and has put Australia at the leading edge of medical technology”.
He was awarded $480,000 in damages for defamation. Multiple injunctive orders were made to remove (multiple) websites containing defamatory imputations and to not publish certain materials.
Not the End of the Road
The Contempt Proceedings
But Operation Litigation did not end there. The defendant brothers failed to comply with the vast bulk of the Court’s orders made in 2017.
Dr Muderis returned to the Court with Contempt Proceedings, the subject of today’s decision.
He has been successful. The Court has found that Mr Mazello is guilty of both criminal and civil contempt on multiple counts. Later this year the Court will make penalty orders in respect of the contempt findings.
About Contempt of Court
Seven Facets to Contempt Proceedings
Proceedings for contempt of court are not daily occurrences. They are exceptional. The following seven points should be borne in mind:
- In New South Wales, the Supreme Court has jurisdiction for contempt proceedings being a superior court of record.
- Contempt is a common law offence. It carries all the available penalties for any criminal offence, including a custodial sentence.
- Traditionally contempt is divided into two types: civil and criminal.
- Criminal contempt is conduct that obstructs the administration of justice.
- Civil contempt involves the breach of an order or undertaking that does not involve an obstruction of the administration of justice.
- Where the breach of an order of or undertaking to the court is deliberate (either a deliberate defiance of the order or undertaking or a contumacious breach of the order or undertaking) contempt that is otherwise civil is considered to be criminal in nature (Witham v Holloway [1995] HCA 3).
- A contumacious, wilful and deliberate disobedience of an order of a court may be characterised as both civil and criminal contempt (Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, per Beazley JA).