His Lordship was also impressed by the fact that the issues in the previous cases were different to the issues in the case before him. He said, at 111 of V & B; 261 of ER:
"A Plea could not possibly be put in: as the Matter in the Ecclesiastical Court could not be the same Issue in Fact, as that upon this Record; and, though that might be brought into Contest in the Ejectment, still this Question recurs, whether, that Ejectment having been tried without addressing the conscience of the Defendant, they are not to be at Liberty now to take that Course, until they have paid the Costs of that Proceeding; in which the Defendant had Security given to him of his own Valuation in the Court, where that Proceeding passed."
66 His Lordship recognised that in some circumstances (not those of the case before him) a case might be one where the same issue arose in the equity proceedings as had arisen earlier in ejectment proceedings, and continued (at 112 of V & B; 261 of ER):
"… but that brings it against to the short Point I mentioned, whether the Court is to stay Proceedings, until the Costs at Law are paid, because the Plaintiff comes into Equity to ask the Defendant upon his Oath, what he knows upon the Subject; unless I am to lay down, what never was asserted, that the Plaintiff must not bring an Ejectment, until he has filed a Bill. As to the Costs of the Ejectment there is this short Ground. The Court of Law gave the Defendant Security for Costs according to his own Measure; and did not impose the Term, that a Bill should not be filed. If the Security taken was somewhat too scanty, upon what Ground am I to interfere, because that Proceedings was taken before the Bill filed?"
67 His Lordship referred to the caution with which a court ever ordered people who sued as paupers to pay costs, and continued, at 112 of V & B; 261 of ER:
"Where a Person, who in a former Proceeding sued in forma pauperis , has instituted a second Suit for the same Purpose, not being dispaupered, in the former, there is no Instance, that the Court ever stayed the second Proceedings, until he paid those Costs, not due by a former Judgment, but to become due by Taxation; unless the new Proceeding was to be justly characterized as very vexatious. In such Cases that has been done. (See Corbett v Corbett 16 Ves 407 )
68 His Lordship's reason for not terminating the plaintiff's action was, at 113 of V & B; 262 of ER:
"… if this is not permitted, in many Cases the poor Man will not get that, to which he is entitled, and the rich Man will withhold what he ought to give up. In this instance however there was a common Interest in the Subject; and the Ground, upon which I refuse this Motion, will do, even if there was the same Plaintiff in the three Proceedings. In that View the Combination complained of does not affect me. The Ground, on which I refuse this Motion, is, that I cannot apply to a particular Case a Principle, the general Application of which would produce enormous Mischief …"
69 Even when there had been a contempt arising from disobedience of an order of the Chancery, the party in contempt was not prevented from being heard in a different cause in Chancery In Clark v Dew (1829) 1 Russ & M 103; 39 ER 40 a testator had, by his will, left certain land, and certain "sums of stock" to the Plaintiff and the Plaintiff's brother. The Plaintiff brought Chancery proceedings against both the testator's heiress at law and her husband, and the devisee in trust under the will, seeking to have the trusts of the will carried into effect, and, so far as the real estate was concerned, that the question of validity of the will be decided by a jury in an action of devastavit vel non. The Plaintiff sought the appointment of a receiver until the question of the validity of the will could be decided. An Ecclesiastical Court (basing its decision on written depositions) had previously decided that the will was invalid because the testator lacked capacity, but that decision did not preclude a jury in a common law action from coming to a different conclusion. After the decision of the Ecclesiastical Court, the heiress at law and her husband brought proceedings in Chancery against the Plaintiff and his brother, to compel them to account for property which they held and to which they would have been entitled according to the terms of the will. The Plaintiff and his brother were ordered to transfer certain stock which they held. They did not do so, in consequence of which the Plaintiff had been imprisoned for contempt. He remained in prison at the time of the reported case. The defendant's submission that the Plaintiff ought not be heard on his application for appointment of a receiver, because he was in contempt, was rejected. Lord Lyndhurst said (at 107 of Russ & M, 41 of ER):
"that the practice was the same, he apprehended, in equity, as at law, that a party could not move till he had cleared his contempt; but that the rule must be confined to proceedings in the same cause; otherwise the consequence would be, that a party, who was utterly unable to comply with an order of the Court, might be prevented from afterwards prosecuting any claims, however just, against the person, who had succeeded in obtaining that order. Here the suit was between the same parties, but it had reference to distinct properties."
70 Nor, it seems, did it matter that the two suits were closely related, because both sought the same relief concerning the administration of the one deceased estate. In Turner v Dorgan (1842) 12 Sim 504; 59 ER 1226 an executrix had two different suits brought against her, each by different creditors of the estate, seeking administration of the estate. A decree for administration was made in the first suit. The executrix was in contempt in the second suit, for not providing an answer. She moved, in both suits, to stay the proceedings in the second suit. Sir Lancelot Shadwell VC granted the stay, but drew it up as an order in the first suit, because that was the suit in which the moving party was not in contempt.
71 In Morrison v Morrison (1845) 4 Hare 590; 67 ER 783 Sir James Wigram VC said (at 591 of Hare, 784 of ER) said: "a party in contempt is entitled, notwithstanding his contempt, to appear, and resist any proceedings taken against him in the cause." Thus, he held that a party to proceedings in which accounts are sought, who is in contempt, is entitled to take exceptions to the Master's report on the accounts, and to have those exceptions set down for hearing. That party in contempt then made a further application to (inter alia) have the Master ordered to take accounts which had not previously been taken, from the manager of certain estates in the West Indies. The objection that he could not obtain that order because he was in contempt did not prevail, because it was (at 595 of Hare, 785 of ER) "a matter altogether free from, and totally unconnected with, the subject of the contempt.".
72 In Chuck v Cremer (1846) 1 Coop t Cott 205; 47 ER 820 Lord Cottenham LC recognised, obiter, that the restriction on a person in contempt bringing proceedings applied only to proceedings in the same cause as that in which the contempt arose. His Lordship said:
"The Lord Chancellor said, he was of opinion that the appeal motion could not proceed. That a party was entitled to be heard, if his object was to get rid of the order, or other proceeding, which placed him in contempt, and he was also entitled to be heard for the purpose of resisting or setting aside for irregularity, any proceedings subsequent to his contempt; but he was not generally entitled to take a proceeding in the cause for his own benefit. That there were exceptions to the last rule, but they were few in number." (emphasis added)
73 That exception has also been subsequently recognised in Fry v Ernest (1863) 12 WR 97; 9 LT 321, by the Full Court of the NSW Supreme Court in Burnett v Burnett (1903) 3 SR (NSW) 513; 20 WN (NSW) 168 in the passage quoted at para [29] above, in Bettinson v Bettinson [1964] 1 Ch 465 at 471, by the Full Court of the Supreme Court of South Australia in Short v Short (1973) 7 SASR 1 at 11; 22 FLR 320 at 330, in In the Marriage of MKA and SH Fahmi (1995) 19 Fam LR 517 at 522; in Woollahra Municipal Council v Shahani (1990) 69 LGRA 435 at 441; and in Australian Securities Commission v Macleod (Federal Court of Australia, Drummond J, 23 November 1994, unreported) at 4.
74 The defendants submitted that it was just a historical accident that Parliament had decided to establish the L & E Court as a superior court, separate to the Supreme Court, and confer upon it jurisdiction to issue injunctions to enforce town planning legislation. They submitted that there was a close connection between the subject matter of the suit in the L & E Court, and the subject of the suit in the present court, because both the proceedings in the L & E Court, and the letter about which complaint is made in the present litigation, involved attempts by the Council to enforce the planning legislation concerning the one piece of property. I do not accept that these factors are ones which justify an erosion of the exception, now well established, that the principle that a party in contempt cannot be heard is confined to contempt in the same suit as that in which the application was made.
Secundum Subjectam Materiam
75 There are many statements in judgments to the effect that a person in contempt will not be heard. But legal reasoning, like many other forms of human discourse, is able to communicate because there is an understood context in which the statement is made, and by reference to which it should be interpreted. For centuries there has been a canon of construction which was expressed in Latin as "verba accipenda sunt secundum subjectam materiam" (Words are to be understood in the context of their subject matter), or, more long-windedly, as "Sensus verborum ex causa dicendi accipiendus est, et sermones semper accipiendi sunt secundum subjectam materiam." (The sense of words is to be taken from the occasion of speaking them, and discourses are always to be interpreted according to the subject-matter. 4 Co. 14. (Bouvier's 1856 Law Dictionary)).
76 In the course of judgment writing, these maxims were often shortened, to refer to words being read secundum subjectam materiam. In The Australian Tramway Employees Association v Prahran & Malvern Tramway Trust (1913) 17 CLR 680 at 693, Isaacs and Rich JJ said (admittedly in a context of statutory construction) "read secundum subjectam materiam, as words in every document must be…"
77 Windeyer J in Smith v Jenkins (1969) 119 CLR 397 at 410 even said,
"Those who would explain common law principles by exotic Latin maxims ought surely to remember that these are to be understood secundum subjectam materiam. "
78 That principle of construction has been applied many times to the reading of a court's reasons for judgment.
79 For example, in Mutual Life & Citizens' Association Company Limited v Evatt (1970) 122 CLR 628 at 633 the Privy Council said:
"A requirement that the existence of a similar characteristic is necessary in order to attract a duty of care is not stated unequivocally in any of the speeches in Hedley Byrne [1964] AC 465. But those speeches, like all judgments under the common-law system must be understood secundum subjectam materiam . The fact that the characteristics were present in the relationship between the maker and the recipient of the statement under consideration in Hedley Byrne [1964] AC 465 made it unnecessary for those who expressed the reasons for their decision of the case to direct their minds to the question whether the terms in which the reasons were expressed would have called for some qualification in their application to cases where those characteristics were absent--as they are in the instant appeal."
80 In Italiano v Barbaro (1993) 40 FCR 303 at 325 Neaves, Burchett and Whitlam JJ said:
"It is true that in Gala v Preston (1991) 172 CLR 243 at 254 the joint judgment of Mason CJ, Deane, Gaudron and McHugh JJ contains a statement that:
"the onus lies on the party who asserts that, by reason of special and exceptional facts, the ordinary relationship of a driver towards a passenger is transformed into one which lacks the requisite relationship of proximity to give rise to a relevant duty of care."
The logic of this statement is plain; proof that the plaintiff was a passenger in a car driven by the defendant, no qualifying fact being evidenced, is proof of a relationship which creates a duty of care. But every statement in a judgment must be read secundum subjectam materiam . Where it is established that the driver and passenger in question had joined in an arrangement to bring about a collision deliberately, the logic of the statement in the joint judgment, as applied to the actual situation in this appeal, simply disappears; the relationship of driver and passenger is not "ordinary". In such a case the plaintiff is remitted to his initial position of a party alleging a cause of action, who must in general discharge the onus of establishing each of its essential elements.