Henderson v Taylor, Information Commissioner of Queensland [2006] QCA 490

The application, when filed, was given the hearing date of 17 February 2006. It was allocated two hours in the Applications List for that day.

**[45] On 6 February the appellant filed another application (again within his original proceeding) by which he sought disclosure of documents by a non-party, the Commissioner of Police. That application was also made returnable on 17 February.

[46] Mr Henderson sought that date of hearing no doubt because 17 February was also the date for the hearing of his (amended) originating application, which he had attempted to serve on Ms Taylor at home.

[47] In this way Mr Henderson made three applications which then came before White J in the Applications List on 17 February. He told her Honour that he was not ready to proceed with his contempt application because he needed to obtain non-party disclosure from the Commissioner of Police (as to Ms Taylor's complaint). On 1 February the Queensland Police Service had sent to him some documents, but he was pressing for more. That application was refused by White J, from which there was no appeal.

[48] Mr Henderson also sought directions that there be pleadings and disclosure in his contempt application. White J expressed the view that it was not appropriate for the contempt application to proceed as if it were a claim[5], but directed the delivery of points of claim and points of reply. That ought to have made it clear to Mr Henderson that he would not have the benefit of disclosure of documents from those whom he charged with contempt. Mr Henderson argues that they were in some way obliged to make disclosure of documents, and that unfairly Holmes J later decided his contempt proceeding without that obligation being discharged. But an obligation to make disclosure could have come in this context only by an order of the court, because the proceeding had not been started by claim or ordered to continue as if started by claim: Uniform Civil Procedure Rules r 209. In any case, because the application was to have the respondents punished for contempt, an order for disclosure would have been inapt, because of the privilege in relation to documents which would tend to subject a party to any punishment or penalty: see, eg Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 335-336 per Mason ACJ, Wilson and Dawson JJ. The existence of this privilege was itself a sufficient answer to the argument that the respondents to the contempt application should disclose any documents directly relevant to the proof of Mr Henderson's case. In the same way, it would have been inapt to have treated the contempt proceeding as if started by claim, and to have thereby engaged the rules relating to the pleading of a defence which require an explanation of a denial or non admission[6], because such a direction would have been inconsistent with the respondents' privilege. This is why those rules which deal specifically with contempt applications make no reference to disclosure or pleadings[7].

[49] White J accepted that the hearing of the contempt application had to be adjourned so that the appellant's case could be fairly particularised by points of claim. Towards the end of the argument, her Honour said that the parties should approach the associate to Byrne J, who was then the Acting Senior Judge Administrator, to obtain an early date for the hearing of that application.

[50] On 27 February Mr Henderson filed his points of claim. On 6 March the respondents filed their points of defence. On the same day the respondents' solicitors approached the associate to Byrne J, seeking a hearing date. On 8 March Mr Henderson filed yet a further interlocutory application, which was to have his contempt application placed on the callover list. This was made returnable on 22 March. Then on 9 March, the registry informed the respondents' solicitors that the contempt application would be heard on 17 March, in the Applications List, and they then so informed Mr Henderson.

[51] So on 17 March, the respondents appeared before Mullins J to meet the contempt application. But Mr Henderson was not there, having advised the previous day that he could not attend for "personal reasons" before 24 March or in the week commencing 3 April (this was supported by a medical certificate). In the circumstances, the hearing of the contempt application was adjourned to 30 March (in the Applications List). Her Honour also adjourned to that date his application for a transfer to the Civil List.

[52] When those matters came before Holmes J on 30 March, Mr Henderson sought a further adjournment of his contempt application, upon the basis that he was hoping to obtain more documents from the Queensland Police Service and also, as he put it, that he wished to cross examine "material witnesses on material facts". He then went on to explain that he wished to call Ms Taylor and her solicitor as witnesses in his case.

[53] He had not been served with an affidavit of Ms Taylor. Affidavits by the solicitor had been served, although they simply exhibited correspondence. Counsel for the respondents argued that the appellant should not be permitted to simply call a witness and conduct something of an exploratory exercise in evidence in chief, to see if anything relevant and favourable emerged. Her Honour accepted that submission, and in my view, correctly. The proposed witnesses were Ms Taylor, who would not have been bound to answer Mr Henderson's questions because of the privilege already mentioned, and her solicitor, who would have been bound by Ms Taylor's legal professional privilege in relation to at least much of Mr Henderson's intended inquiry. The exercise which he had in mind was therefore likely to be pointless, and if not, then unfair.

[54] Holmes J decided that Mr Henderson had been given a reasonable opportunity to be ready to present his case on that day and that he should not be allowed further time to try to obtain more from the police. Her Honour had regard to the importance of the expeditious determination of a case of this kind. And especially given his unsuccessful application to White J to obtain further documents from the Police Service, her Honour's refusal to further adjourn the hearing did not involve an erroneous exercise of her discretion.

[55] Holmes J then proceeded to consider the affidavit evidence and after oral argument, her Honour delivered an ex tempore judgment dismissing the contempt application in its entirety.

[56] Holmes J set out the first of the pleaded allegations of contempt which was in these terms:**

"C. From 1 August 2005 to 1 December 2005 the first respondent acted in concert with the second respondent in contempt of the applicant's Originating Application

1. was served with a copy of the Applicant's Originating application to this Honourable Court filed 1 August 2005

2. was aware that a Higher Court registry error meant that re- service on her of the originating application was imminent

3. knew that a stay applied on the applicant's request for external review

4. in or about October 2005 instructed the second respondent to intermeddle with the stayed external review

5. the second respondent had not been previously involved in the external review

6. knew that the second respondent in common with her other delegates were disentitled to intermeddle in the stayed external review

7. did so to place improper pressure on the applicant as a party and as a witness in Originating Application 6205/2005

8. did so to pre-empt the Court's paramount authority to decide the issues contained in the Originating Application

9. did so with actual knowledge the second respondent was a person enrolled as a legal practitioner

10. did so knowing that the second respondent was not the holder of a current practising certificate

11. was aware of the applicant's divers (sic) requests to her between 1 August 2005 and 1 December 2005 for her to appoint a practising legal practitioner to avoid the need for personal service of the Originating application and the Applicant's affidavit on her

12. refused to appoint a legal practitioner to facilitate initial service and re-service on her by the Applicant.

13. refused to file in the Court and serve a notice of address for service upon her until 6 December 2005.

14. was aware that in the absence of the appointment of a legal practitioner that re-service would be effected on her personally

15. was served on 1 December 2005 with an amended Originating application and the Applicant' affidavit sworn 1 December 2005

17. received a letter from the applicant 2 December 2005 outlining the circumstances of service

18. was served with an affidavit of service (other) sworn and filed by the applicant and served on her December 2005."

**[57] As Holmes J noted, that charge made no allegation against the second respondent, except indirectly by the allegation that the second respondent was instructed by Ms Taylor to "intermeddle with the stayed external review". Holmes J also observed that this charge seemed "to be premised on the notion that the existence of the originating application constituted a stay of any further action by the first respondent". I agree with Holmes J that this was plainly an incorrect premise. The existence of proceedings, commenced by the originating application, did not preclude Ms Taylor or anyone acting under her authority from continuing to conduct the review of the CMC's response. By doing anything to continue that review, Ms Taylor was not interfering with the administration of justice. Her Honour correctly held that there was no case to answer on this first charge. On the hearing of this purported appeal, Mr Henderson effectively abandoned any case in this respect.

[58] The second of the pleaded allegations was in these terms:**

"D. Between 1 December 2005 and 5 December 2005 alone and in concert with others acted in further contempt of Court in Application 6205 of 2005.

1. She sent a letter dated 5 December 2005 at 11.02 am by

• demonstrated that she was in breach of her duty and statutory duty to the Applicant
• Acted contrary to civil and criminal law
• Informed the applicant that she had implemented reprisal action against him
• Threatened the taking of future reprisal action including the laying of criminal charges against him.
• Applied improper pressure on the Applicant as a party and as a witness contrary to S.119B of the Queensland Criminal Code

2. By third parties she caused a malicious and untrue complaint

• Judith Spence, Minister for Police and Corrective Services
• To Robert Atkinson, Commissioner for Police

• Rodney Jon Welford
• Kenneth John Smith and
• Leonard Kelliher

3. She unlawfully disclosed to the QPS official confidential documents containing personal information about the Applicant which were in her official possession or control

4. She agitated for Commissioner Robert Atkinson to dispense with QPS published policy procedures for investigation and handling of Complaints

4. She caused the applicant to be harassed and intimidated at his private residence on the same evening after 9pm, upon the instruction of Commissioner Atkinson through:

• Shane Houghton of the Hendra Crime Investigation Branch of QPS
• Detective Jackman
• Detective Boorman

5. She received a feedback report from QPS concerning the Detectives attendance on the Applicant at his residence."

**[59] In essence this allegation was to the effect that the response by Ms Taylor to the attempt to serve her at her home was a wrongful interference with the course of justice. Her Honour found, as was uncontested, that Ms Taylor did send the letter of 5 December 2005 and did complain to police, and consequently police went to Mr Henderson's home on 5 December. Her Honour then referred to his version that police had suggested to him that he should consider "acting contrary to the enjoyment of his lawful rights". Her Honour was unpersuaded that any such suggestion by police should be attributed to Ms Taylor.

[60] After setting out the terms of the Ms Taylor's letter of 5 December, Holmes J said:**

"The letter is certainly heated. It says if the applicant attempts to attend the residence again in relation to any matter connected with the first respondent's employment she will report him again to the Queensland Police Service and seek advice about possible charges.

Specifically in relation to the application in question, however, it contains the advice that no further action will be taken in respect of the review and that the first respondent will seek advice about having the matter struck out. Those matters are self-contained within the letter.

The body of the letter is clearly concerned with any attendance again at the premises. Her letter does not threaten any action against the applicant as a prospective witness. It does not in fact say anything about his being a witness. What it says might be a deterrent to his attempting to effect personal service. That of itself I think has no particular bearing on his capacity to conduct litigation. There were alternatives such as service at the office which had taken place or even, if Mr Henderson had a real concern about how service might be effected, the possibility of some form of order for substituted service. But nothing in the letter suggests any threat to the (appellant) as a party or witness and there is nothing in it which could have adversely affected his ability to conduct litigation."

[61] Similarly, as to the complaint to police, her Honour said:

"Reporting his attendance at the house to the police might be perceived as a discouragement to him to attend there again. It does seem to me a somewhat nervous reaction but there is nothing in it which is designed to put pressure on him as a party or a witness, as opposed to as a prospective attender at the first respondent's house. Again there is nothing to indicate that it was calculated to or did affect the (appellant) as a party or as a witness."

**[62] In my respectful opinion those conclusions were correct. The letter makes it clear that Ms Taylor's objection was to his coming to her house, and said that he should prosecute his case without doing that again. As already mentioned, she waived the requirement for personal service of any further documents by saying that they could be left at her office. The demand that he stay away from her house could not have affected his ability to prosecute his case. Nor, contrary to his argument, should it have deterred him from being a witness. Her complaint to police had to be considered with her letter. With the terms of her letter, Mr Henderson should have understood the complaint to police to be that he went to her home. It can be inferred that Ms Taylor intended that complaint to be investigated and for police to speak to the appellant about it. But those events were not such as to be likely to interfere with the course of justice in his legal proceedings.

[63] The third complaint (apart from its particulars) was in these terms:**

"E. On the 13 February 2006 and 16 February 2006 the first respondent in concert with others acted in contempt of the interlocutory Application which sought orders against them for contempt."

The particulars referred to facsimile transmissions of 13 February and 16 February alleged to have been sent by Ms Taylor's solicitors to Mr Henderson. A further particular claimed that the first and second respondents failed to disclose to White J on 17 February that those letters had been sent. The alleged terms of the letters were that threats were made to him that if he did not withdraw his contempt application there would be some "exposure of personal information held by the first and second respondents about (him) to the world at large." On their face those particulars are concerning. However Mr Henderson's difficulty was and is that he failed to tender either of the alleged letters. Moreover, he did not attempt to tender them upon this appeal. Accordingly, her Honour rightly held that there was no case to answer in this respect.

[64] The other allegation was in these terms:

"F. Between the 17 February 2006 and 22 February 2006 the respondents acted in further contempt of Court

• The respondents instructed Stephen James Dickens to brief Hedley Thomas Journalist with Queensland Newspapers Pty Ltd on matters which were sub-judice.
• In association with that briefing he placed confidential documents and the said unfiled documents and information about the Applicant in to the possession or control of the said Hedley Thomas.
• As a result of that briefing, on 23 February 2006 in reference to the sub-judice Applications Mr Thomas published an article demeaning the Applicant on page 1 of the Courier Mail newspaper containing assertions against the Applicant which were false, malicious misleading and untrue."

**[65] At the hearing before Holmes J, Mr Henderson tendered no evidence in support of this allegation. He did not tender the newspaper article referred to in the particulars. But he put the article before this Court. It does not at all appear that the publication of the article could have interfered with the course of justice. Undoubtedly the journalist's source was Ms Taylor or her solicitors but the suggestion that there was some breach of a duty of confidence has no apparent basis. In any event, in the absence of evidence in support of this allegation, Holmes J rightly held that there was no case to answer.

[66] In summary, none of the allegations of contempt were established. The application filed on 9 January 2006 was therefore dismissed and the appellant was ordered to pay the respondents' costs of that application to be assessed on the standard basis.

[67] The principal point argued by Mr Henderson is that Holmes J should have adjourned the hearing so that he could gather further evidence.

[68] He says that he should have been given the opportunity of collecting further evidence from the Queensland Police Service. Not long ago, he obtained copies of some emails sent within the Police Service on or about 5 December 2005, in which police officers were reporting to each other on steps taken to investigate Ms Taylor's complaint. Mr Henderson describes this material as a "smoking gun". But that is not the case. The material is probative of no fact which was not already admitted or sufficiently established before Holmes J. As already discussed, Holmes J accepted that Ms Taylor complained to police to the effect of some invasion of her privacy, and the police spoke to the appellant about that complaint. Nothing more appears from these emails. Mr Henderson says that he would like to pursue further inquiries with the benefit of the emails. Yet he cannot point to some particular fact which he would hope to prove by that inquiry.

[69] Mr Henderson says that he was denied the prospect of obtaining evidence to support the charge that information had been improperly provided to the journalist resulting in the newspaper article of 23 February 2006. He now suggests that the "confidential documents" supplied to the journalist are in fact those letters of 13 and 16 February from Ms Taylor's solicitors to him (the subject of the third contempt charge). But again, that cannot be assessed without the benefit of the letters, which for some reason he did not tender at the trial or on this appeal. Moreover, Mr Bradley for Ms Taylor was able to demonstrate that the correspondence which is quoted in the newspaper article was correspondence which was in evidence before Holmes J, such as her letter of 5 December. The position remains that Mr Henderson is still unable to substantiate his assertion that material was improperly provided to the journalist, or that Ms Taylor in some way caused the journalist to publish this article to the end of improperly deterring him from prosecuting either his principal claim or his contempt application.

[70] He complains about the steps taken to set the case down for hearing on 17 March (before Mullins J). There is no substance in this complaint. It is unnecessary to discuss in detail the events by which the Court advised of that date for hearing. He was made well aware of that date and of the subsequent date of 30 March.

[71] His argument also places strong emphasis upon his right as a litigant to attend to the personal service of his amended originating application, and that Ms Taylor's response ought not to have been a complaint to police. As already discussed, the question was not whether it was reasonable for Ms Taylor to have complained to police. It was whether her conduct wrongly interfered with the course of justice, which it did not.

[72] Accordingly, if the appeal was competent then it should be dismissed upon the merits. But in any case, the respondent's alternative argument, that the appeal is incompetent, should be accepted.

[73] In Australian Building Construction Employees' and Builders' Labourers Federation v David Syme & Co Ltd [1982] FCA 43; (1982) 40 ALR 518, the Full Federal Court held that s 24 of the Federal Court of Australia Act 1976 (Cth) provided no right of appeal from an acquittal in proceedings for punishment for criminal contempt. Acquittal of such a charge after a hearing on the merits was held to be equivalent to acquittal in criminal proceedings. The contempt which had been alleged against the respondent newspaper proprietor was that it had wrongly interfered with the course of justice by certain publications. After a hearing on the merits, Northrop J found that the respondent had not been guilty of contempt of court. The applicants appealed, arguing that Northrop J was in error in that he should have punished the respondent for contempt and made further orders. In the judgment of the court (Bowen CJ, Evatt and Deane JJ), reference was made to the Full Court's decision Thompson v Mastertouch TV Service Pty Ltd [1978] FCA 24; (1978) 19 ALR 547 that s 24 provided no right of appeal from an acquittal pronounced in criminal proceedings after a hearing on the merits. The court saw no ground for re-considering the correctness of Thompson and went on to hold that the same principle was applicable in the present context: a proceeding for punishment for a contempt constituted by conduct interfering with the course of justice.

[74] In Benson v Northern Ireland Road Transport Board [1942] AC 520 at 526, Viscount Simon LC described as "an extremely important and universally accepted principle of our law" that there should not ordinarily be any appeal from an acquittal made by a court of competent jurisdiction, and that clear and unambiguous words are needed to provide such a right of appeal. That this principle is part of the law of Australia is clear, for example, from Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, where Thompson v Mastertouch was approved. Gibbs CJ there described the rule as follows[8]:**

"[A] statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly. It is a rule to which it may be assumed the parliamentary draftsmen have had regard in framing legislation enacted since that time."

**[75] In Queensland the prevailing view is that an appeal lies against a conviction of contempt under what is now s 254 of the Supreme Court Act 1995 (Qld).[9] The challenge to the competency of the present appeal does not question that view. Instead it involves a rule of interpretation which applies only to appeals against acquittals. That rule has its basis in what Viscount Simon LC in Benson described as the right of a citizen, who has been acquitted of a charge, "not to be a second time vexed".[10]

[76] The alleged contempt in this case is of the kind characterised as a criminal contempt, but the better view appears to be that all types of contempt of court are essentially criminal in nature. In Witham v Holloway (1995) 183 CLR 525, Brennan, Deane, Toohey and Gaudron JJ, in holding that any contempt must be proved to the criminal standard of proof, said:[11]**

"[t]he differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt 'must realistically be seen as criminal in nature.'"

In Australian Building Construction Employees, in the judgment of the Full Court at 521-522, it was concluded that a case of the present kind, an alleged contempt of court by wrongful interference with the course of justice, was relevantly criminal in nature so as to engage the principle that there should be no appeal from an acquittal. The reasoning is equally relevant to the present context and I respectfully adopt it. The jurisdiction to punish for contempt of court, and specifically a contempt involving an improper interference with the course of justice, derives from the common law. In Queensland that jurisdiction is expressly preserved by s 8 of the Criminal Code Act 1899 which provides:

"Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as 'contempt of court', but so that a person can not be so punished and also punished under the provisions of the Code for the same act or omission."

Section 8 thereby confirms that contempt of court constitutes an offence, the source of which remains the common law notwithstanding the general codification of criminal law in this State.

[77] In relation to the present question, which is whether a proceeding for punishment for an alleged contempt of court should be regarded as criminal so as to preclude an appeal against a dismissal of the proceeding (absent a clearly expressed jurisdiction), the Court of Appeal in O'Shea v O'Shea and Parnell (1890) 15 PD 59 was asked to decide a purported appeal from an order refusing the issue of a writ of attachment in respect of an alleged criminal contempt. Lindley LJ there said (at 64)[12]:

"The offence of the appellant is certainly a criminal offence. I do not say that it is an indictable offence, but, whether indictable or not, it is a criminal offence, and it is an offence, and the only offence that I know of, which is punishable at common law by summary process.

As regards the authorities, no case has been cited which conflicts with the view which we take on this appeal ... after the appeal had been heard and judgment given, the point occurred to me, and I said I was not satisfied that we had any jurisdiction to hear the appeal. I am now satisfied that we had no jurisdiction to hear it."

**[78] An appeal is not a common law remedy but a statutory right: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 619. Section 254 of the Supreme Court Act 1995 (Qld) provides that an appeal lies to the Court of Appeal from every order made by a judge. But that is in general terms and makes no specific provision for an appeal against an order dismissing such a charge of contempt. Rights of appeal in criminal proceedings derive from Chapter 67 of the Criminal Code, but those provisions do not provide for an appeal against an acquittal of a criminal charge.

[79] It follows that this appeal is incompetent and irrespective of the merits, should be dismissed.

[80] Two further matters must be considered. The first relates to the respondent's unsuccessful application for security for costs of this incompetent appeal. That application was dismissed by a court constituted by Jerrard JA, Helman and Chesterman JJ[13]. The respondent did not then raise the incompetence of the appeal. The application was dismissed initially with costs in favour of Mr Henderson to be assessed on the standard basis. However he sought to argue that he should have costs on an indemnity basis. The utility in that application is not immediately apparent, because Mr Henderson is unrepresented. Nevertheless he was allowed seven days in which to file written submissions in support of that application. But he did not do so. He claimed that this was by some misunderstanding because of subsequent orders. It is unnecessary to explore the detail of that because, without objection, he was allowed to renew his application for indemnity costs. He has done so by filing further written submissions. There is nothing in them which indicates, let alone demonstrates, that he should have indemnity costs. The existing order should not be disturbed. In those written submissions Mr Henderson now seeks costs against Ms Taylor's solicitors of that application for security. It is too late for him to make that application and in any case his submissions indicate no basis for it.

[81] The other question involves the reasons for judgment given by that Court. Jerrard JA at [5] referred to Mr Henderson's having been a bankrupt between February 2001 and March 2004. That was relevant because the respondent, in applying for security for costs, was relying upon the bankruptcy as an indicator of impecuniosity. That was a proper argument and in turn Jerrard JA, not surprisingly, noted it. But Mr Henderson says that his Honour's reference to his bankruptcy was unnecessary and that this Court should now make an order amending those reasons for judgment. As to this application, there is an obvious importance in the transparency of the Court's work, and in a judgment recording the substance of the issues and arguments. Quite apart from whether it would be appropriate for this Court to make any order in relation to the judgment of that differently constituted Court, there is simply no substance in the complaint that the bankruptcy should not have been mentioned. It was plainly relevant. Moreover, it was and is already a matter of public record.

[82] The third matter is an application filed on 4 August 2006 by Mr Henderson that Jerrard JA, Helman and Chesterman JJ not sit in this appeal, apparently because of some concern from the application for security of costs (although their Honours determined that in his favour). In my view this application has no basis, but the application became irrelevant because; of course, the court for this appeal was differently constituted. I mention this only because since the hearing of the appeal, Mr Henderson for whatever reason has sought to have this application listed for a hearing.

[83] The appeal should be dismissed. The appellant should be ordered to pay the respondent's costs of this appeal to be assessed on the standard basis. There should be no order varying the existing order that the respondent pay the appellant's costs of the application for security for costs, on a standard basis. I would further order that the application, which was filed on 4 August 2006 be dismissed and that the respondent's costs of it be part of her costs of the appeal.**

[1] Pursuant to s 52 of the Freedom of Information Act 1992 (Qld).

[5] Uniform Civil Procedure Rules r 14.

[6] Uniform Civil Procedure Rules r 166.

[7] Uniform Civil Procedure Rules rr 925, 926.

[8] [1984] HCA 34; (1984) 155 CLR 21 at 32.

[9] R v Foster and Ors; Ex parte Gillies [1937] St R Qd 67 (Webb and Henchman JJ, Blair CJ, diss.);

R v Queensland Television Ltd; ex parte Attorney General [1983] 2 Qd R 648; cf. R v Lowrie [1997] QCA 434; [1998] 2 Qd R 579 at 581-584 per Davies JA.

[10] Benson v Northern Ireland Road Transport Board [1942] AC 520 at 527.

[11] (1995) 183 CLR 525 at 534.

[12] In a passage set out in Australian Building Construction Employees' and Builders Labourers' Federation

v David Syme & Co Ltd [1982] FCA 43; (1982) 40 ALR 518 at 521.

[13] [2006] QCA 267.