Chapman v Saunders

(c) The proceedings before von Doussa J (i) The proceedings on 2 August 2000 4 The transcript of proceedings before von Doussa J on 2 August 2000 was exhibited to Mr Palyga's affidavit. According to that transcript Mr Bourne, a solicitor, then appeared for the respondent, and informed the Court of the following (summarised by O'Loughlin J): · The respondent is an Aboriginal woman of the Ngarrindjeri Tribe; · For about seven years until May 1997, the respondent was the Director of the Aboriginal Legal Rights Movement ("the Movement") in South Australia. · Since her resignation and until recently, she has worked as an artist and has held no position in the Movement, but on 16 June she was reappointed as Director in an acting capacity to the end of August 2000; · She acknowledged receipt of the subpoena; · The respondent had the field books of Dr Fergie that were the subject of par 1 of the schedule to the subpoena in her custody or control and in a safe place; · She received the notebooks in her personal capacity and not in any official capacity; · She received the notebooks as a Ngarrindjeri woman and on the basis that the information contained in the notebooks belonged to Ngarrindjeri women; · The respondent was not a custodian of the information, but she physically holds the books as a custodian "in white fella's terms" for the Ngarrindjeri women; · The confidential appendices two and three that were the subject of par 2 of the schedule to the subpoena have been destroyed; 5 Mr Bourne is then recorded as saying: "[The respondent] will not produce the notebooks to the Court." 6 The transcript of proceedings then recorded Mr Bourne addressing the Court with respect to item 3 of the schedule to the subpoena. As to that, he said that his client, the respondent, "came across a disk" accidentally. According to Mr Bourne's instructions the respondent had not "checked but assumes that the disk contains copies of the appendices". We take that to be the appendices referred to in par 2 of the schedule to the subpoena. Mr Bourne then continued: "… but in any event, whether it does or it doesn't, she is not prepared to produce that disk to the Court." 7 Most, if not all, of that information was later verified by the respondent. As well as filing an affidavit in the proceedings, she gave evidence and made herself available for cross-examination during the hearing of the motion before O'Loughlin J. 8 On 2 August 2000 von Doussa J made the following orders: "1. That Sandra Saunders take all reasonable steps available to her to take into her immediate possession and control the documents described in items 1 and 3 in the subpoena addressed to her and returnable before this Court this day and that she neither directly nor indirectly alter, destroy or damage the same until further order of the Court. 2. That 10.15 am on Monday the 7th August 2000 be fixed as the time to argue the objection as to compliance with the subpoena already served. 3. That the Applicants have leave to file and serve another subpoena addressed to Sandra Saunders requiring her attendance to give evidence at 10.15 am on Monday the 7th August 2000." 9 A sealed copy of the order of 2 August 2000 was served on the respondent on Wednesday 2 August 2000 at about 4.00 pm. A further subpoena was served on the respondent on 2 August 2000. It called for the production of the same material as was described in the schedule to the first subpoena and it also required the respondent to attend and give evidence. Both subpoenas were returnable at 10.15 am on Monday 7 August 2000. (ii) The proceedings on 7 August 2000 10 On 7 August 2000, Mr Bourne informed von Doussa J that the respondent's position remained the same. In particular, Mr Bourne said (summarised by O'Loughlin J) that production of the documents would cause his client to offend the customs and observances of the Ngarrindjeri women; it would breach s 35 of the Aboriginal Heritage Act 1983 (SA) ("the Aboriginal Heritage Act"); and it would cause her to breach the relationship of trust and confidence which she has with the Ngarrindjeri Women who have asked her to be the custodian of the material. 11 The respondent subsequently entered the witness box in answer to the second subpoena and was affirmed. She was thereafter questioned by Ms Shaw QC, counsel for the appellants in the principal proceedings. The respondent said that she had the material in her possession; she had not brought the material to Court that day; she believed that the Aboriginal Heritage Act protected the interests of Aboriginal people and that she should not have to produce the material to the Court; and she had a responsibility to the Aboriginal people and, in particular, the Aboriginal women, to keep their information safe. 12 On 7 August 2000 von Doussa J made the following order: "1. [The respondent] within seven days produce into the custody of the Court to abide the further order of the Court the two field notebooks prepared by Dr Deane Fergie and the computer disk identified by [the respondent] in her evidence today. 2. A decision on the question of costs in connection with the subpoenas addressed to [the respondent] reserved. 3. The injunction for preservation of the said field notebooks and computer disk made on 2nd August 2000 to continue until further order. 4. Adjourn to a date to be fixed for further examination of [the respondent]."

(d) The proceedings before O'Loughlin J 13 It was common ground before O'Loughlin J that the material the subject of the Subpoena (hereafter "the material") was not produced to the Court and that the respondent continued to refuse to do so. However, the respondent claimed that, by virtue of Aboriginal law and custom and her beliefs, she was compelled under Aboriginal law not to produce the material and her conduct, therefore, did not amount to contempt; and that she felt unable to comply with the Order of the Court because of her fundamental Aboriginal culture which made production of the material impermissible. She submitted that her non-compliance did not amount to contempt of court because she did not intend to be in contempt of the Court.

THE REASONS OF O'LOUGHLIN J 14 O'Loughlin J noted the respondent's evidence (which was not challenged in cross-examination) that, although she had custody of the material, the respondent did not know the details of the information described as "the secret women's business". 15 Turning to the applicable legal principles, his Honour noted that a contempt charge had to be proved beyond reasonable doubt, citing Witham v Holloway (1995) 183 CLR 525 (at 532). O'Loughlin J rejected a submission made on behalf of the appellants that contempt is established merely upon proof of failure to comply with a clear and unambiguous order of which the respondent party has had proper notice. His Honour said that more was required, citing Attorney-General v Mulholland [1963] 2 QB 477, a case concerning two journalists who refused to disclose their sources of information, where reference was made by the Court of Appeal (at 489, 492) to the additional factors of relevance and necessity in that connection. O'Loughlin J went on to refer to the observations made in John Fairfax & Sons Ltd v McRae (1954-1955) 93 CLR 351 (at 370) that the summary jurisdiction to punish for contempt, being exceptional, was to be exercised with great caution; and that, sometimes, even if a technical contempt had been committed, because of special circumstances, the Court may think that it ought to refuse to exercise its summary jurisdiction. However, his Honour went on to conclude that, were it not for his subsequent finding on the question of necessity (see below), he would have been compelled to conclude that the respondent's actions amounted to a contempt, and this would not have been classified as merely "technical". 16 O'Loughlin J, relying on observations of von Doussa J in Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010 at par 25, accepted that the material would be relevant to issues in the principal proceedings, but noted that the appellants had not indicated how they would use the material in those proceedings. 17 In dismissing the motion, O'Loughlin J said (par 44): "Bearing in mind the heavy onus that the [appellants] carry, I find myself not satisfied that they have led the evidence that would be needed to satisfy me beyond reasonable doubt, that it would be necessary for [the respondent] to produce the notebooks and the disk. In coming to this conclusion, I have found that the totality of the following factors have influenced my decision: · the failure of the [appellants] to address the subject of necessity in the statement of charge and Mr Palyga's affidavit; · the failure of the [appellants] to explain how they would or might make use of the material if it were produced and the extent to which (if at all) its late production would affect or interrupt the progress of the trial; · the failure of the [appellants] to explain why the subject of [the respondent] and her custody of the material was not addressed until August 2000, some eight months after the start of the trial; · the failure of the [appellants] to explain why this action had been taken against [the respondent] and not against Dr Kartinyeri; · the decision of von Doussa J not to take action against [the respondent] on his own motion."

CONCLUSIONS ON THE APPEAL 18 In our view the evidence compelled a conclusion that the respondent had committed a contempt of court by deliberately disobeying the order of von Doussa J. 19 The respondent made no application to set aside the Subpoena, or to appeal against the order of von Doussa J. 20 As long as that order stood the appellants were entitled to have it respected and obeyed. There was no obligation on the appellants, in the application before O'Loughlin J, to show that enforcement of the order would be necessary or useful for them in the conduct of the litigation, or to explain why they had not obtained the issue of the subpoena at an earlier date, or why they had not taken similar action against someone else. 21 James v Cowan; In re Botten (1929) 42 CLR 305 is directly in point. In an action in the original jurisdiction of the High Court Mr Leonard Botten, the Acting Secretary of the Dried Fruits Board of South Australia, was served with a subpoena to produce certain minute books the property of the Board. Mr Botten admitted that the books were in his possession but refused to bring them into Court saying that the Minister of Agriculture for South Australia had refused to allow him to do so. Starke J ordered Mr Botten to bring the books into Court but after an adjournment he again refused to produce them. Starke J (at 307) referred to a letter from the Minister to Mr Botten asserting that the books were privileged. His Honour continued: "Whether the claim to privilege is good or bad is a matter which I suppose I should have to determine when the books are brought into Court pursuant to the subpoena. Yesterday I referred to a case of R v Greenaway (1845) 7 QB 126 which I think rather shows that, if the witness has the lawful custody of the books, it is his duty to obey the subpoena, and then any question of privilege arising on the documents so brought into Court pursuant to the subpoena will be determined by the Court, but the question I have to determine is whether the witness is right in refusing to produce them, to bring into Court and produce documents according to his subpoena. I think that is simply a defiance of the law in saying that he will not do it upon the authority of somebody who claims to be, as I venture to think, above the law. If the books are produced, I am in a position, I think, to determine the question of privilege, but I am in no position to determine it when a witness says he will do nothing; who will neither obey his subpoena nor act upon the decision of the Court nor indeed take the slightest notice of what the Court thinks proper or right. There is only one result, I am sorry to say, but I must commit the witness to prison for his contempt of Court, and I do not know that I can tell him at what time he will be released until he purges his contempt. I regret the fact, because it seems to me that I am impelled, forced into a position which I think is unfortunate for the witness. He is doing a grievous wrong to the plaintiff. Witness, I regret, but I must commit you to prison for your contempt of Court." 22 On appeal by Mr Botten the Full Court of the High Court (Knox CJ, Gavan Duffy, Rich and Dixon JJ) upheld the order of Starke J. Their Honours said (at 310): "Much of the argument in support of the appeal was addressed to the questions as to what use could be made of the books when brought into Court and whether the order is one we ourselves would make, but it is not necessary for us to express an opinion on these questions because it is enough for us to say that the order to bring the books into Court as directed by the writ of subpoena was made by a competent Court, and that a refusal to obey that order was a defiance of the authority of the Court and therefore a contempt of Court." 23 In Mulholland, relied on by the primary judge in the present case, a tribunal had been established under the Tribunals of Inquiry (Evidence) Act 1921 (UK) to inquire into breaches of security in connection with spying offences committed by an Admiralty clerk. Two journalists were called to give evidence before the tribunal. When questioned, they refused to disclose the source of information for articles they had written. Under s 1(2)(b) of the Act, where a person called as a witness refused to answer any question "to which the tribunal may legally require an answer", the chairman of the tribunal could "certify the offence of that person under his hand to the High Court" and the court after enquiry could order punishment "as if (the person) had been guilty of contempt of the court". Gorman J sentenced the journalists to terms of imprisonment. The English Court of Appeal dismissed their appeals. Lord Denning MR identified the issues on the appeals as follows ([1963] 2 QB at 487): "Now, was this a question which they could legally be required to answer? That depends on two questions. First, was it relevant and necessary in this sense, that it was a question that ought to be answered to enable proper investigation to be made? Secondly, if it was, have the journalists a privilege in point of law to refuse to answer? Under the statute any witness before the tribunal is entitled to the same immunities and privileges as if he were a witness before the High Court. I turn to consider these two points in order, remembering that the certificate of the tribunal is not binding on the courts. The judge before whom it comes must inquire into the matters afresh to see if an offence has been committed." 24 There is an important difference between Mulholland and Botten. The former, strictly speaking, was not a case of contempt of court at all. Only if the unanswered question was shown to be "relevant and necessary", and thus one to which the tribunal could "legally require an answer", could the court proceed to impose a penalty "as if" there had been a contempt. But as Botten makes clear, a subpoena to produce documents, and, even more so, a subsequent order by a judge for production of the documents, must be obeyed. A party seeking enforcement of a valid order is not required to reprove his or her entitlement to have had the order made in the first place. 25 Reference was also made by O'Loughlin J to Hancock v Lynch [1988] VR 173. The applicant there sought review of an order by a magistrate under s 46(1)(b) of the Magistrates' Court Act 1971 (Vic) which provided that if a person being examined as a witness refused "to answer (a) lawful question" the magistrate "may" commit such person to prison for a time not exceeding one month or impose a fine not exceeding $100. The applicant had been charged with certain drug offences, escaping from lawful custody and possession of money being property reasonably suspected of having been stolen or unlawfully obtained. He pleaded guilty but at the end of the prosecution case his counsel informed the Court that the applicant had earned as wages the money the subject of the unlawful possession charge. The magistrate then invited the applicant to change his plea and to give evidence as to how he had derived the money. Upon changing his plea the applicant gave sworn evidence to the effect that most of the money was wages for work done cleaning a factory for a relative. At the time he did this work the applicant was an escapee from a Youth Training Centre. Under cross-examination by the prosecutor the applicant refused to answer questions as to the name of the relative or the identity of the factory. The applicant said he did not wish to cause trouble for his relative. The magistrate then told the applicant he would give him a choice of answering the question or of conviction of the charge of unlawful possession. The applicant still refused to answer and the magistrate ordered him to leave the witness box. 26 The magistrate then announced he would not convict the applicant on the unlawful possession charge because he accepted the applicant's evidence that most of the money had been received as wages. However the magistrate then charged the applicant with failing to answer questions put to him as a witness and after submissions on behalf of the applicant convicted him of that charge and discharged him. Terms of imprisonment were imposed in relation to the other offences but these were not the subject of review. 27 On the review Kaye J set aside the order on the basis that the exercise of the jurisdiction was discretionary and the magistrate's discretion had miscarried. His Honour held that the question the applicant refused to answer was lawful and, at the time when it was addressed to him, relevant. However his Honour considered (at 177) that "the prosecutor's question ultimately proved to be irrelevant because it did not serve a useful purpose for the magistrate's determination whether the applicant's account was satisfactory. (Emphasis added) 28 This ultimate irrelevancy was a material consideration which the magistrate failed to take into account. Therefore his discretion miscarried. 29 Throughout his judgment Kaye J refers to the applicant's conviction as being for contempt of court. For example, his Honour concluded (at 178) that the applicant's refusal to answer the question was "technically a contempt". However the terms of s 46(1) do not mention contempt. The section confers a discretion on a magistrate where there has been, amongst other things, a refusal to answer a lawful question, to commit a person to prison for up to a month or impose fine of not more than $100. The essence of his Honour's decision was that the exercise of that discretion miscarried, for the reasons his Honour gave. Thus we do not think the decision helps the respondent in the present case. A finding of contempt of court is not a discretionary order. The Court must be satisfied beyond reasonable doubt that the facts alleged in the charge are established and that, as a matter of law, those facts constitute contempt. Once a contempt has been found, the Court then has a discretion to make such order as is appropriate in all the circumstances. 30 In any event, we note the express finding by O'Loughlin J (at par 33) that the respondent's contempt was not "technical". His Honour also found that the respondent's personal views, however sincere, could not in themselves justify disobedience. We think his Honour was correct in this. 31 The critical ground on which the application failed before O'Loughlin J was the question of necessity. For the reasons already mentioned, we think this was an irrelevant consideration. 32 Indeed on the hearing of the appeal senior counsel for the respondent did not seek to argue that in the case of disobedience of an order of the Court or a judge, the necessity for the making of the order had to be proved or was even relevant in establishing that a contempt had been committed. Rather he argued that O'Loughlin J was dealing with the question whether any order of the Court should be made on the appellants' notice of motion. 33 We do not accept this argument. The structure of his Honour's reasons is quite clear. His Honour · rejected the appellants' argument that proof of failure to comply with a clear order of which the respondent had notice was sufficient, without more to establish a contempt (par 19); · held that the relevance and necessity of the order disobeyed also had to be examined (par 23); · found that the respondent's beliefs were genuine but that she was not entitled to any common law privilege and noted that no argument of public interest immunity was advanced (par 25); · concluded that it would not be appropriate to excuse the respondent from producing the material because of her personal beliefs (par 33); · noted that, were it not for his findings "on the question of necessity", he "would have been compelled to conclude that [the respondent's] actions amounted to a contempt of Court" which he "would not classify as a 'technical contempt'" (par 33); · found that production of the material would be relevant (par 35); · found that the appellants had not explained how they would use the material at trial (par 36); and · held that the appellants bore a "heavy onus" to satisfy the Court beyond reasonable doubt that it would be "necessary" for the respondent to produce the material and that such onus had not been satisfied (par 44). 34 Plainly his Honour found that there had been no contempt, not that there was a contempt but that no further order was necessary. 35 In conclusion, we would stress that there is a fundamental distinction between, on the one hand, producing documents to a Court in obedience to a subpoena or the order of a judge and, on the other hand, determining how the documents are to be dealt with when in the custody of the Court. It is at the latter stage that questions concerning the use of the documents such as privilege, confidentiality, inspection and tender are to be decided. Reference should be made to Botten and the decision of the New South Wales Court of Appeal in National Employees Mutual General Association Ltd v Waind (1978) 1 NSWLR 372.

ORDERS 36 It was common ground that in the event of the appeal succeeding the matter should be remitted to O'Loughlin J. There will be orders that the appeal be allowed with costs, that the orders made by O'Loughlin J on 6 October 2000 be set aside and in lieu thereof it is ordered that the matter be remitted to his Honour to be dealt with in accordance with these reasons. 37 (This appeal was heard by a Full Court constituted by Beaumont, Heerey and Lehane JJ. Unfortunately Lehane J was unable to continue as a member of the Full Court. However, pursuant to the provision of s 14(3) of the Federal Court of Australia Act 1976 (Cth), the parties consented to determination of the proceeding being completed by a Full Court constituted by the remaining Judges.) I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court

Counsel for the Appellant: Ms Shaw QC, Mr D Meyer

Counsel for the Respondent: Mr R White QC, Mr T Bourne