Ferraro v Woodward

Receive Vincent Peter Ferraro into your custody and keep him there until the further order of this Court.

Dated at Sydney this Twenty-fifth day of November, 1977.

The applicant contends that the warrant is invalid on the ground that it does not show on its face either that the applicant had been adjudged guilty of contempt or the nature of the contempt. There is no doubt that it is necessary that an order of committal made by an inferior court should set out the cause of the commitment, including the nature of the contempt (McIlraith v. Grady [11] ). However, the argument submitted by the respondent in the present case is that the Commissioner was placed in the same position as the Supreme Court of New South Wales and that a warrant for committal issued by that Court need not set out the cause of the commitment. Form 66 of the forms made under the Supreme Court Act, 1970 N.S.W. which, according to Pt I, r. 11 of the Rules, may be used where applicable, does not set out the cause of commitment and has obviously been the model of the form used in the present case. By s. 18 of the Royal Commissions Act, it is provided as follows:

(1) For the purposes of the inquiry the commissioner shall have all such powers, rights, and privileges as are vested in the Supreme Court or in any judge thereof in or in relation to any action or trial, in respect of the following matters: -

(b) compelling witnesses to answer questions which the commissioner deems to be relevant to the inquiry;

(d) punishing persons guilty of contempt or of disobedience of any order or summons made or issued by the commissioner.

(2) Nothing in this or any other section of this Division shall limit the powers, rights, and privileges of the commissioner under any other provision of this Act.

Although the Commissioner, being a judge, has the powers of the Supreme Court for the purposes mentioned, he is not acting as the Supreme Court when he sits as a commissioner. Prohibition would not lie to him if he were sitting as a member of the Supreme Court, but would lie if he were sitting as a commissioner. (Section 14A of the Royal Commissions Act would not prevent the grant of prohibition in most cases.) Any decision he makes is subject to review on the ground that he has exceeded his powers.

It is unnecessary to decide whether a warrant in the form of form 66 would be sufficient if issued to give effect to an order made by the Supreme Court. There are valid reasons why the cause of commitment and the nature of the contempt should be stated in a warrant when issued by a commissioner. If that is not done, when a warrant is produced in answer to an application for habeas corpus, it is not possible to see whether a prisoner is held arbitrarily, or has been committed for lawful reason. Even more important is that the warrant does not enable it to be known, even by the prisoner, what the person committed must do if he is to purge his contempt. Another important practical point of distinction between a commissioner and the Supreme Court is that the term of a commission is limited. After the commission had expired, Woodward J. obviously would have no right, as Commissioner, to release the applicant from his indeterminate imprisonment. It may have been to meet this possibility, rather than a slavish adherence to form 66, which led to the use of the words "until the further order of this Court" in the warrant. However, the Commissioner has no power to invest the court with jurisdiction, and the concluding words of the warrant would appear to be nugatory.

For those reasons, whatever the position when a warrant is issued by the Supreme Court, a warrant issued by a commissioner is not sufficient if it simply follows form 66 and fails to set out the cause of commitment and the nature of the contempt. When a man's liberty is at stake, the law must be strictly complied with. The warrant in the present case does not justify the applicant's imprisonment and he must be released.

It would appear to follow from what has been said that whatever may be the position in other cases, a commissioner who commits a person to prison must commit the contemnor for a fixed term or, if the term is not fixed, for a period which would not extend beyond the determination of the commission, but it is unnecessary to decide that question.

Special leave to appeal will be granted and the appeal will be allowed.