Bradshaw v A-G [1998] QCA 42

Under the legal system we administer, it is a settled rule that there is no right of appeal to a higher court unless it is conferred by statute. The same necessarily applies to any appeal by leave of the court. The provision under which leave is sought here is s.118(3) of the District Courts Act which, after specifying in s.118(2) the judgments against which a right to appeal is given, then proceeds to invest this Court with a power to grant leave to appeal to a party who is dissatisfied with "any other" judgment of a District Court given in the original or appellate jurisdiction of that court.

A provision to much the same effect appeared in s.118(2) of the Districts Court Act until it was replaced by provisions in the Courts Reform Act Amendment 1997. In view of what follows, it is helpful to set out here the provisions of both that subsection and s.118(1) in the form in which they stood before being replaced in 1997. They were then as follows:

"118. (1) Any party who is dissatisfied with the final judgment of a District Court, whether in its original or appellate jurisdiction -

(a) in an action or matter in which the sum sued for exceeds $10,000;

(b) in an action for the recovery of possession of land of which the value exceeds $10,000;

(c) in proceedings in interpleader in which the amount claimed or the value of the goods in question exceeds $10,000;

(d) in an action or matter which before the commencement of the District Courts Act and Other Acts Amendment Act 1989 might have been commenced only in the Supreme Court unless the parties agreed to it being heard and determined in another jurisdiction;

(2) Any party who is dissatisfied with a judgment of a District Court other than one hereinbefore mentioned in this section may by leave of the Court of Appeal or a judge of appeal appeal to the Court of Appeal."

Under the provision in s.118(2), applications for leave to appeal against convictions in the District Court for contempt of court have in the past been made to and granted by this Court, as well as by its predecessor the Full Court of Queensland. Such a conviction was regarded as a judgment "other than one hereinbefore mentioned ...". A notable example is Macgroarty v. Clauson [1989] HCA 34; (1989) 167 C.L.R. 251, where an appeal was allowed by the High Court from a decision of the Full Court dismissing an appeal from a conviction and fine for contempt of court imposed in the District Court. At that time the corresponding provision was s.92(2) of the Act. Another and more recent instance in which such an appeal was entertained in this Court is Stanbridge v. Director of Prosecutions (App. No. 5416 of 1996. C.A. May 27, 1997).

The difficulty confronting the applicant is that, on and from 1 August 1997, s.47 of the Courts Reform Amendment Act 1997 repealed and replaced s.118 of the District Courts Act with a section which in material respects is now in different terms:

"Appeal to the Court of Appeal in certain cases.

118. (1) This section does not apply to an appeal from a judgment of a District Court exercising criminal jurisdiction, other than an appeal brought before a District Court under the Justices Act 1886, section 222.

(2) A party who is dissatisfied with a final judgment of a District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment -

(i) for an amount equal to or more than the Magistrates Courts jurisdictional limit; or

(ii) in relation to a matter at issue with a value equal to or more than the Magistrates Courts jurisdictional limit; or

(b) involves directly or indirectly any claim, demand or question in relation to any property or right with a value equal to or more than the Magistrates Courts jurisdictional limit.

(3) A party who is dissatisfied with any other judgment of a District Court, whether in the court's original or appellate jurisdiction may appeal to the Court of Appeal with the leave of that court."

The source of the difficulty is the incorporation of what may be called the new s.118(1). Its express effect is to exclude or prevent the application of the whole of that section to an appeal "from a judgment of a District Court exercising criminal jurisdiction". The expression "judgment" is defined in s.3 of the Act to include a "judgment, order, or other decision or determination of a judge". There is therefore no doubt that the decision of White D.C.J. by which the applicant was found to have been guilty of an offence under s.129(1)(a) answers that description. The remaining question is whether, in giving that judgment or decision, his Honour was "exercising criminal jurisdiction". At the time he convicted and fined the applicant he was engaged in trying an indictable offence, which, by s.60 of the Act, it is within the jurisdiction of a District Court to inquire into, hear and determine. To that extent at least, he was exercising criminal jurisdiction. Approaching the matter in that way may state the question too broadly; but, even so, it remains true that the decision finding the applicant guilty of contempt and fining him for it plainly amounted to an exercise of criminal jurisdiction. The distinction between a criminal and a civil contempt is not always easy to identify even if some consequences of the distinction may be considerable; for example, the prerogative of pardoning offences clearly extends to the former, but not to the latter: cf. In the Matter of a Special Reference from the Bahama Islands [1893] A.C. 138. However, having regard to the character of the conduct comprehended by s.129(1)(a) of the Act and the nature of the penalties imposed by s.129(4), as well as to what was said in Witham v. Holloway (1995) 183 C.L.R. 525, 530, 538, there can be no doubt that the decision holding the applicant guilty of contempt in the present case was, within the meaning of s.118(1), a judgment of a District Court exercising criminal jurisdiction. So much is acknowledged and, indeed, affirmed in the applicant's further written outline of argument in this matter.

It follows that, unless some other interpretation can be placed on s.118(1), the effect of that provision is to exclude the power of this Court to grant leave to appeal from the decision that the applicant now seeks to challenge. For this purpose, the applicant relies on s.14B(1)(b) of the Acts Interpretation Act 1954 and on the explanatory note provided to members of the Legislative Assembly in the course of the Parliamentary debate leading to the enactment of what was then cl.47 of the Courts Reform Amendment Bill. The explanation in the note is as follows:

"Clause 47 replaces Section 118, which specifies the rights of persons to appeal from judgments of the District Court to the Court of Appeal. This section encompasses rights of appeal in both civil and criminal proceedings, except appeals following a criminal trial on indictment. The rights of appeal following trials on indictment are contained in Chapter 67 of the Criminal Code."

If the ordinary meaning of a statutory provision leads to a result that is manifestly absurd or unreasonable, then, by virtue of s.14B(1) of the Acts Interpretation Act 1954, consideration may be given to extrinsic material capable of assisting in the interpretation of that provision in order to provide an interpretation that avoids such a result. The precise terms of s.14B(1)(b) on which the applicant founds his submission are as follows:

"14B. (1) Subject to sub-section (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation -

(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result ...".

By s.14B(3)(c) "extrinsic material" is defined to include an explanatory note or memorandum of the kind referred to here. A provision similar to s.14B(1)(b) appears in s.15AB(1)(b)(ii) of the Acts Interpretation Act 1901 (Cth.), and has been referred to in the High Court on recent occasions including Newcastle City Council v. GIO General Ltd. (BC 9706330; Dec. 2, 1997), which was cited by the applicant. It is, however, in slightly different, and on one view possibly more restricted, language in that the manifest absurdity or unreasonableness of the statutory provision that is being interpreted is to be ascertained by "taking into account its context in the Act and the purpose or object underlying the Act". A comparable provision appears in s.14A of the Queensland Act, but it is not specifically related to the use of extrinsic material.

Under s.14B(1)(b), the function served by considering the extrinsic material is to assist in interpreting a statutory provision in order to justify a departure from its ordinary meaning. The "ordinary meaning" and effect of s.118(1) of the District Court Act is that the power of this Court under s.118(3) to grant leave to appeal from "any other" judgment of the District Court does not apply to an appeal from a judgment of a District Court in the exercise of its criminal jurisdiction, which includes its jurisdiction under s.129 to punish for contempt of court. The proposition advanced by the applicant is that, in interpreting s.118(1), consideration ought to be given to the explanatory memorandum to provide an interpretation of s.118(1) that avoids that conclusion because it is a result that is "manifestly absurd or unreasonable".

At one time the settled rule was that a court of record was the sole and exclusive judge of what amounted to a contempt of court: Rainy v. The Justices of Sierra Leone [1853] EngR 788; (1853) 8 Moo P.C. 47, 54; [1853] EngR 788; 14 E.R. 19, 21. That may be one reason why attempts to appeal in such cases always seem to run into difficulties: see R. v. Foster, ex. p. Gillies [1937] St.R.Qd. 67 (which was an appeal from a conviction in the Supreme Court); but what was said in Rainy no longer represents prevailing attitudes on the matter. It may be assumed that it would now be considered to be an "unreasonable" result of the ordinary meaning of s.118(1) if it altogether excludes the power of this Court to grant leave to appeal against a conviction for contempt of the kind and in the circumstances disclosed here. It would invest in the District Court a practically unlimited and unreviewable power of deciding to penalise a member of the Bar for something done or said in the course of representing a client in court. Conduct by other persons punished under s.129 would also be beyond review. Such a result would appear even more unreasonable when it is borne in mind that, under s.118 as it stood before 1 August 1997, a decision to convict someone under s.129(1) was regarded as susceptible of appeal by leave of this Court. No one is immune from the risk of making errors and, when they do so in exercising the power conferred by s.129(1), there ought to be some means of correcting that state of affairs. If community interest is the test for determining what is or is not unreasonable under s.14B(1)(b), then that criterion is satisfied here.

Such a conclusion would be sufficient to authorise a court, which is in the process of interpreting a provision such as s.118(1), to take at least the first step of giving consideration to the extrinsic material constituted by and contained in the explanatory note in this case. When consideration is given to it, it can be seen that the author of the note regarded s.118 as encompassing "rights of appeal in both civil and criminal proceedings, except appeals following a criminal trial on indictment". The reason given for that exception is that the rights of appeal following trials on indictments are contained in chapter 67 of the Criminal Code. In so far as it is relevant, there is no reason to doubt the correctness of that observation. Section 668D, which forms part of that chapter, gives rights of appeal to persons convicted on indictment, including an appeal by leave against a sentence passed on such a conviction. It might ordinarily be difficult to regard a sentence imposed after a plea of guilty as necessarily following "a criminal trial"; but in s.1 of the Code there is a definition of "trial" which includes a sentencing proceeding, and it was probably with that in mind that the author of the note spoke of a "trial" on indictment.

What are thus excluded from the category described in the explanatory note are orders made in the exercise of the original criminal jurisdiction of a District Court that do not follow a criminal trial on indictment. An offence dealt with under s.218 of the Racing and Betting Act 1980 may possibly be an instance of that kind (cf. s.218(2), which provides for trial by a judge sitting alone); but s.237(5) of that Act appears to contemplate that the ordinary course of committal, and therefore of indictment, will also apply in that instance. Convictions for contempt appear to be the only readily identifiable case of a judgment given in the District Court exercising criminal jurisdiction that does not follow a trial on indictment. Hence, it is said that what the explanatory note demonstrates is that such convictions were not intended to fall within the exclusionary ambit of s.118(1).

The critical question is, however, whether, having considered the explanatory note in interpreting s.118(1), the court must then construe that provision in the manner that is suggested by the note. Section 14B(1)(b) does not in terms require the court to do so. It says no more than that consideration may be given to extrinsic material, comprising in this instance the explanatory note, that is capable of assisting in the interpretation of a statutory provision in order "to provide an interpretation" of the provision if it avoids a result that is manifestly absurd or unreasonable that would result from the ordinary meaning of that provision. Even assuming that, as has already been said, it is an unreasonable result that there should now be no avenue of appeal from a conviction for contempt, it is not immediately apparent how the explanatory note can be said to "assist" in the interpretation of s.118(1) or provide some other interpretation of it. The terms of the provision and, consequently, its interpretation are clear, and the process of interpreting it requires no assistance from any other source. Its meaning is that s.118 is not to apply to an appeal from a judgment of a District Court exercising criminal jurisdiction. That is not merely the "ordinary" meaning of s.118(1), but the only meaning that it is capable of being ascribed to it. To add, for example after the words "judgment" in s.118(1), the words "following a criminal trial on indictment" is not simply to interpret the provision in order to avoid an unreasonable result. It is to displace or alter the meaning of the provision by inserting words that are absent from s.118(1) with a view to restricting the scope or ambit of its operation.

To undertake such a course is not to interpret the provision but to amend it, which is a function that it is for Parliament to perform. Of course, it is true that courts and judges are the servants of Parliament in interpreting and giving effect to the legislation it has enacted including s.14B(1)(b) of the Acts Interpretation Act. It may be that, in the amplitude of the legislative power it undoubtedly possesses, it would be possible for the legislature to delegate to the courts a power of altering statutory enactments: cf. Cobb & Co. v. Kropp [1967] 1 A.C. 141. Deciding whether or not there should be a right of appeal in a particular matter in which no such right was given by statute would, however, involve a grant of power going well beyond the limits of any judicial rule-making authority hitherto conferred on a court. It is well settled that the power to make rules respecting practice and procedure does not authorise the adoption of rules the effect of which is to enlarge or reduce the court's jurisdiction. See Enid Campbell, Rules of Court, at 70-73. Questions of a constitutional nature, possibly both State and Federal, might well intrude if such an expedient were to be adopted. One would therefore not be readily or naturally disposed to assume that Parliament had envisaged such a result. That s.14B(1) of the Acts Interpretation Act was not intended to do so is borne out by the provisions of s.14B(2)(a), to which s.14B(1) is expressly made subject, which provides that, in determining the weight to be given to extrinsic material, regard is to be had among other matters "to the desirability of a provision being interpreted as having its ordinary meaning". It is plainly not desirable that this Court should be invested with a power to determine what appeals it must or may, or must not or may not, hear. Despite what appears to be the unreasonableness, in a general sense, of s.118(1) in withholding an appeal even by leave in a matter like this, the essentially interpretative function of s.14B(1) should not be regarded as conferring on this Court a power to amend s.118(1) in order to avoid what may well be an unsatisfactory result in this case.

It follows from what has been said that there is no power in this Court under s.118(3) of the District Court Act to grant leave to the applicant to appeal against the judgment convicting or fining him under s.129 of that Act. Any such power is excluded by s.118(1) of the Act. Enough has been said to demonstrate that the matter is one meriting the intervention, and indeed the active and rapid intervention, of the legislature to correct the state of affairs revealed here. It was at one stage of the hearing intimated that the application might perhaps be adjourned indefinitely to enable appropriate legislation, presumably having retrospective effect, to be enacted. The objections to adopting such a course are self-evident, and reported authority on the subject is opposed to it. See Clifford Sabey (Contractors) Ltd. v. Long [1959] 2 Q.B. 290; R. v. Whiteway, ex p. Stephenson [1961] VicRp 26; [1961] V.R. 168, 171, where Dean J. quoted the statement of Starke J. in Ramsay v. Aberfoyle Manufacturing Co. (Australia) Pty. Ltd. [1935] HCA 75; 54 C.L.R. 230, 253, that "Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future"; as well as the decision of the Ontario Court of Appeal in Boyd Builders Ltd. v. City of Ottawa (1964) 45 D.L.R. (2d) 211, 215. These decisions are referred to in de Smith's Judicial Review of Administrative Action (4th ed.), at 342 n.14. The underlying risk is that a state of affairs might develop in which there was one law for litigants who are politically influential, and another for those who are not. Nothing of that kind is suggested against (or in favour of) the applicant here; but it is necessary that the integrity of the principle should be maintained.

It is not possible or desirable at this stage to pass upon the merits of an appeal which, for the reasons given here, we have no authority to entertain. The application for leave to appeal should be refused. On the other hand, I agree with Davies J.A. in thinking that it is possible to proceed to a hearing of the motion as in substance an application for an order nisi for certiorari under s.29 of the District Court Act. The power of this Court to grant an appropriate form of relief where another has been applied for is supported by R. v. Pine Rivers Shire Council, ex p. Raynbird [1967] Qd.R. 384, 399; cf. also R. v. T. [1994] QCA 326; [1995] 2 Qd.R. 192. It follows that I agree with the order proposed by Davies J.A. at the end of his reasons for judgment.

For practical purposes it is not necessary to finally decide whether or not prior to the 1997 amendments to the legislation governing the jurisdiction of the District Court there could have been an appeal, with or without leave, from a judgment of that Court in contempt proceedings. It is sufficient for present purposes to conclude that since the 1997 amendment such a judgment is not within the ambit of operation of s.118.

In R v Foster & Ors ex parte Gillies [1937] St. R. Qd. 368, approved and applied in R v Queensland Television Ltd. ex parte Attorney-General [1983]2 Qd. R. 648, the Full Court held that there was an appeal from a decision of a Supreme Court judge adjudging a person guilty of contempt to the Full Court under s.10 of the Judicature Act, and that such appeal was by way of rehearing. That provision is replicated in s.254 of the Supreme Court Act 1995, so it may well be that there remains a right of appeal from a contempt decision made by a Supreme Court judge. But those statutory provisions are of no avail to this applicant.

The critical conclusion for present purposes is that there is now no statutory provision providing for an appeal from a decision of a District Court judge holding a person guilty of contempt. In those circumstances I agree with Davies J.A. that the applicant's remedy is pursuant to s.29 of the District Court Act. Given the provisions of s.41 of the Judicial Review Act 1997 the writ of certiorari is abolished and replaced by a prerogative order, in particular a certiorari order as defined in s.3.

I would therefore direct, subject to an application being made therefore by the applicant, a certiorari order issue removing the matter into this Court and I would adjourn for further hearing the question whether that order should be made absolute.