Emibarb Pty Limited t/as The Lagoon Seafood Restaurant v Paul Raymond Matters [2005] NSWIRComm 312 | Case summary

Judgment (10 paragraphs)

[1]

The Applicant respectfully invites the Commission to find Mr Matters conduct was in contempt of the Commission, to make an order for costs in a sum representing the costs incurred by the Applicant in the pursuit of the Summons to Mr Perri, to censure Mr Matters and to refer this matter to the Attorney-General for prosecution for perjury. 14 Mr Matters submitted that the motion should be dismissed as being defective, because it raised a charge of perjury, which the applicant sought to have dealt with as a contempt of court and was therefore bad for duplicity. In any event, the statements relied upon could not constitute perjury because they were not material to the proceedings. 15 Reference was made to s 164 of the Act, it being noted that while perjury was alleged in the motion, no orders under s 164 were sought. It was argued that the defect in the motion would prevent the Commission from proceeding to prosecute in respect of the perjury. It was also argued that the information in the motion could not provide grounds for a finding of contempt perjury. It was bad for uncertainty. Rule 55.7 of the Supreme Court Rules was relied upon. It provides:

[2]

17 It was argued that even if the motion were not dismissed, the applicant had failed to prove the charge of perjury, beyond reasonable doubt and it should be dismissed. 18 It was conceded that the statement relied upon had been made on oath before a competent person, but it was argued that the statement was not material to the proceedings in which it was made. The proceedings were concerned with a motion that access be denied to material which was confidential and irrelevant. Access was however granted. The evidence went to the existence of the documents sought, namely tax returns. The evidence was that they did not exist, but were being prepared. It was argued that the existence of the documents was the relevant matter before the Commission, not whether or not they were being prepared. It was also argued that it could not be established that the statement was made wilfully, knowing that it was false. The evidence did not permit such a conclusion, particularly having regard to the evidence of Mr Perri. It followed that there should be no reference of the matter to the Director of Public Prosecutions as sought. 19 It was also conceded that an offence of perjury contempt existed, although it being noted that in Keeley v Brooking, where Barwick CJ observed at 170 that such contempt must be relatively rare, false swearing usually resulting in prosecution for perjury. It was argued that stringent tests applicable to such a contempt could not be met here. The evidence showed that there had been no prevarication in the answers given and the proceedings were adjourned in order to permit the name of an accountant to be supplied. Reference to events before the Registrar were irrelevant to the allegation of contempt of the Commission raised in the motion. While it was conceded that a series of statements could comprise a compendious lie, evidence before the Commission and later statements to the Registrar and an application made to him, could not. The summons at issue was also objectionable on the grounds of relevance. 20 It was also not open to the applicant to initiate a perjury contempt prosecution, where the member of the Commission had not exercised the powers of the Commission to do so. 21 In the reply filed for Emibarb on 3 August it was submitted that Mr Matters had misunderstood what had been sought, in these proceedings, which was a reference to the Registrar pursuant to Rule 237. The Commission was not presently being asked to determine whether a contempt had been committed. 22 The submission that lies told by Mr Matters were not material were argued to be nonsensical, given that he was a party to an application for costs, in which his tax returns were being pursued. Cross examination as to a failure to produce documents sought by summons was material and relevant to that application. Those documents went to establish his employment status. The enquiry was legitimate and the lie deliberately told under oath was designed to frustrate and obfuscate the proceedings. 23 Mr Matters' submissions as to the relevant standard of proof went to the standard applicable at a hearing of a contempt charge, not this application. These proceedings are not criminal in nature. The determination of the motion would not result in any determination that the respondent is guilty of any offence. 24 Submissions as to Mr Matters' understanding and state of mind could not take the place of evidence about such matters. The evidence was that he had made an appointment with the accountant in question within 24 hours of having given evidence that he could not recollect the accountant's name. The inference was that he was being disingenuous and seeking to frustrate the applicant's inquiry in the answers he gave in evidence. There was no retainer or contract with the accountant at the time. All that had occurred was that an appointment had been made with a secretary. The complaint went to the false swearing that his income tax returns were being prepared. The failure to meet his undertaking further evidenced the respondent's ongoing endeavour to frustrate the Commission proceedings, as did the misleading representations later made to the Registrar. Mr Perri could not produce documents in answer to the summons served, because they had not been provided to him by Mr Matters, as he well knew and failed in candour to divulge to the Commission or to the Registrar. Both the Registrar and the Commission were misled, as Mr Matters finally revealed. 25 Mr Matters may be guilty of an offence under s 327 or s 330 of the Crimes Act. The applicant did not seek to have those offences ventilated in these proceedings. Consideration 26 At issue in the proceedings at the time of the alleged contempt, was the joinder of the South Coast Labour Council and Mr Matters, for the purpose of the costs orders being pursued by the respondent. The hearing proceeded on 25 June 2004. At [3] of the joinder judgment I noted:

28 The costs application was later refused by Backman J, her Honour concluding that the requirements of s181(2)(a) and (b) had not been satisfied. That is, her Honour was unable to conclude that Ms Tarpia's application, brought under s 213 of the Act, was 'frivolous and vexatious' or was instituted 'without reasonable cause'. It accordingly became unnecessary for her Honour to consider the orders sought against Mr Matters under Rule 209 of the Commission's rules, the prerequisite findings under s 181(2) of the Act not having been made. 29 What here arises for consideration are certain events which occurred before and after the 25 June 2004 hearing before me and before the hearing of 8 July 2005, before Backman J. I have noted the contents of the various affidavits filed and the submissions outlined. In short summary, they deal with evidence given by Mr Matters on 9 June 2004, when examined about his response to a summons for production of documents and the events which followed. 30 Mr Matters' evidence on 9 June, was that his income tax returns 'are being prepared now', but he could not remember the name of his accountant. He undertook to provide Emibarb with that name within seven days. The information was not provided until 24 June, in later proceedings before the Registrar. A summons was issued to Mr Perri, returnable on 1 July. No documents were produced that day and Mr Matters appeared to object to the summons on the grounds of relevance. He was given leave to file a motion and the summons was stood over to 8 July. No motion was filed. On 8 July there was no production or appearance by Mr Perri. Mr Matters appeared and produced some documents. Emibarb objected to Mr Matters' interference in a summons directed to a third party. Mr Matters informed the Registrar that Mr Perri had no documents to produce, because he had not yet given Mr Perri any. Emibarb sought the opportunity to cross examine Mr Perri. Mr Perri was contacted and then wrote to Emibarb, confirming that he had not yet received any documents from Mr Matters. While Mr Matters had made an appointment with Mr Perri's firm on 8 June, that appointment had not been kept. Mr Perri first met Mr Matters and received documents from him on 9 July, after contact initiated with Mr Matters by Mr Perri, after Mr Perri had received Emibarb's summons. 31 I am unable to come to the view that the circumstances revealed are not serious. Nor is it possible to conclude that some innocent explanation for all that transpired has thus far been forthcoming. I am also unable to see that the allegations have been drawn to the Court's attention for frivolous or vexatious reasons. 32 The material brought forward by the parties provides a sufficient basis for the allegations of contempt to be considered. I am satisfied, on that material, that the allegations which have come before the Court are such that it is appropriate that they be dealt with pursuant to Rule 237(1) of the Court's Rules. Orders 33 As I noted earlier, the Court's attention has also been drawn to an alleged perjury and an application for reference to the Director of Public Prosecution has been made, but was not finally pressed. Accordingly, I do not deal with that matter. 34 For the reasons given, I order the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt alleged, as envisaged by Rule 237(1). For that purpose the Registrar is directed to instruct the Crown solicitor as to the initiation and conduct of such proceedings and to assist the Commission therein.

Emibarb Pty Limited t/as The Lagoon Seafood Restaurant v Paul Raymond Matters

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