HIS HONOUR: By Motion, notice of which was first served and filed on 8 February 2019, the defendants, the Commissioner of Corrective Services NSW and the State of New South Wales, seek orders: dismissing summarily the proceedings; alternatively, striking out (or not accepting for filing) the Summons filed on 25 July 2018; the undated Statement of Charge of 8 August 2018; the Statements of Charge dated 27 August 2018; the Amended Summons dated 24 August 2018; the statements of charge dated 27 August 2018; and the Amended Summons dated 7 September 2018. Orders are also sought for the plaintiff to pay the defendants' costs of the proceedings.
It is necessary, unfortunately, to recite some history of the proceedings. The proceedings that are sought to be dismissed, summarily, by Motion of the defendants, are proceedings for contempt against the two named defendants (and others, who, by consent were dealt with as if a summons had been filed in relation to them). Greater detail is required.
By the initiating Summons, filed 25 July 2018, the plaintiff sought orders from the Court requiring the Commissioner to grant him access to a laptop computer and a printer/scanner. At the time, the plaintiff was a prisoner in Long Bay Correctional Centre, on remand and facing charges in the District Court of New South Wales. It was said that the laptop computer and printer/scanner were necessary for the purpose of properly preparing the plaintiff's defence against the charges preferred against him.
Through the cooperation of the Commissioner, and the quite proper and appropriate conduct of Counsel representing the Commissioner, access to a computer was granted to the plaintiff. The plaintiff, however, asserted that a different computer was needed.
The Commissioner agreed to provide the different computer if and when the plaintiff or his solicitor took steps, with the Commissioner, to ensure that the desired laptop computer was secure and did not have material on it that was prohibited to prisoners.
By a series of amendments to the Summons, the plaintiff sought to charge the Commissioner and the State of New South Wales with contempt and filed documents headed "Statements of Charge", alleging contempt against those two defendants and various other named individuals.
The plaintiff has now been released from custody. The need for his computer has ceased. The only remaining matters arising from the Summons, as purportedly amended, are the contempt proceedings and it is those proceedings that the defendants seek to dismiss summarily.
Further to the foregoing very brief history, it should be noted that the proceedings have come before the Court, both as presently constituted and otherwise, on a number of occasions and the plaintiff has been given abundant opportunity to file appropriate initiating proceedings for contempt that comply with the rules and also to provide material upon which, it can be said, that a contempt is arguable.
On each occasion that the matter was listed for hearing, the plaintiff sought an adjournment. Generally, those adjournments were granted. On two occasions an adjournment was not granted. Those occasions were 26 April 2019, at which time the Court issued an ex tempore judgment, and on 14 May 2019, when a further ex tempore judgment issued. The latter judgment details the circumstances of the listing of the matter on 14 May 2019. It should be read in conjunction with these reasons for judgment.
Notwithstanding the judgment of 14 May 2019 and its terms, it is necessary to recite, very briefly, the background to those reasons for judgment. The matter came before the Court on 26 April 2019, having been listed for Hearing at 2 pm. The plaintiff attended Court at 2:35 pm.
The Court heard an adjournment application by the plaintiff which, in chief, occupied approximately 1 ½ hours and concluded at 4:05 pm. The adjournment application was refused, but, as a matter of practicality the hearing of the Motion was required to be adjourned.
It is worthwhile noting that the basis of the application on 26 April 2019 was the incapacity of the plaintiff due to illness and, in particular, mental illness. A medical certificate was tendered, the provenance of which was disputed, which certified that the plaintiff was not fit for work, study or court from 22 February 2019 until 22 May 2019.
After issuing its reasons for refusing the adjournment application, and because the time for hearing had elapsed in any event, the Court enquired as to the availability of the parties in the following short period. It then became obvious, from the reasons that the plaintiff was unavailable on a number of dates that, despite the terms of his medical certificate, the plaintiff had been and was to be in various courts for significant periods from 26 April 2019 onwards. It is sufficient for present purposes to note, as was noted in the judgment of 14 May 2019, that, a Transcript of 26 April 2019, p 34 line 27, the Court asked of Mr Liristis:
"What are you like on the 14th, Mr Liristis? I thought you said you were alright [sic] for the whole of May?"
The plaintiff answered:
"I am fine on the 14th."
The Court then listed the matter for 10 am on 14 May. On 9 May 2019, a person, seemingly on behalf of Mr Liristis, sent an email to the defendants making it clear that the plaintiff would not be attending the hearing on 14 May 2019, at least in part, because the plaintiff was unwell.
In part, as a result of the litigation activities of the plaintiff in various courts in the early period following 26 April 2019, the Court was not satisfied, in the absence of an appearance for the plaintiff, that the plaintiff was, in fact, unwell. No medical evidence was tendered, beyond that which was available on 26 April 2019, and, on the material before the Court, the plaintiff was also, on 14 May 2019, appearing in Manly Local Court, in a matter that was listed after the matter listed before the Supreme Court.
It may well be that the plaintiff did not appear in those proceedings either. Nevertheless, in the absence of a formal application for adjournment, the Court treated the correspondence with the defendants and otherwise, as an implicit application for adjournment, which application was refused.
The matter then proceeded. Written submissions had been filed by the defendant supporting the orders sought in the Motion on notice which was filed on 8 February 2019.
At the conclusion of the Hearing, the Court communicated with the plaintiff and gave him the opportunity to answer those submissions in writing. No written submission in response to those submissions has been received.
[3]
Allegations of contempt and the principles
At no stage of the lengthy and confused interlocutory proceedings, during which the plaintiff sought orders and/or undertakings from the defendants associated with the computer (and other matters), did the Court issue orders requiring the defendants (or anyone) to provide the computers and to deal with the other matters. As earlier indicated, the computer was supplied by the defendants, after discussions during the course of proceedings.
The provision of the computer (and the offer of the provision of a more powerful computer requested) was not as a result of any order issued by the Court. Nor was it the result of any undertaking by the defendants to the Court (or to the plaintiff).
The contempt proceedings, if that be the proper characterisation, as initially filed, sought to aid the jurisdiction of the District Court, by making orders to facilitate the plaintiff's proper preparation of his defence. Obviously, if there were circumstances (such as the inability to prepare a defence), which rendered a trial in the District Court unfair, a Judge of the District Court would have the discretion to stay proceedings and make other orders to facilitate a fair trial. I do not by the foregoing suggest that a Judge of the District Court could or would make orders of the kind sought in this Court, but it matters not.
The allegation of "contempt", because of the non-existence of orders or undertakings that have been breached, or of any orders or undertakings at all, is not related to an allegation that the defendants or either of them (or any of the individual alleged contemnors) breached an order or undertaking, whether contumeliously or otherwise. Rather, the allegation of contempt is an allegation that the Commissioner and the State of New South Wales (representing the individual persons who were to have been named) were involved in actions calculated to obstruct or interfere with the due administration of justice, being the plaintiff/prosecutor's criminal proceedings in the District Court.
The foregoing is a recognised species of criminal contempt: see Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3; Raymond v Honey [1983] 1 AC 1 at [10]; Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 at [52]-[53]; and Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 at [26]. A contempt that alleges actions calculated to obstruct or interfere with the administration of justice is a criminal contempt: Witham v Holloway, supra.
It should be noted, importantly, that the act of temporarily depriving the plaintiff of a computer and, for a longer period, denying the plaintiff a computer of his liking is not said to be unlawful. The act of insisting upon the security of a computer to be provided to a prisoner is an act within the power of the Commissioner and the Commissioner's officers and employees as part of the regime that the legislature has promulgated for the proper administration of the prison system.
Criminal contempt must be commenced in a particular way. The procedural steps for the commencement of contempt proceedings is one of the few remaining areas where strict adherence to the rules and the processes is required.
It is certainly the case that the procedure must be carefully observed and, in the absence of adherence to the procedures, orders for imprisonment and/or findings of guilt of contempt will be quashed: Skouvakis v Skouvakis [1976] 2 NSWLR 29. In particular, the Courts have required strict compliance with the rules and, in particular, Pt 55 of the Supreme Court Rules 1970 (NSW) (hereinafter "SCR").
The Supreme Court Rules, in Part 55, set out the manner in which contempt proceedings must be commenced and how they should proceed. The general procedure is set out in SCR Part 55 r 6 and, relevantly, by subr 6(2), must be commenced by summons, but may be heard and determined, if made by motion on notice.
The Supreme Court Rules require (SCR Part 55 r 7) a Statement of Charge "that is, a statement specifying the contempt of which the contemnor is alleged to be guilty". That Statement of Charge must be "subscribed to, or filed with, the notice of motion or summons" commencing the contempt.
The requirement to specify the contempt and subscribe it to or file it with the initiating process is one that has been strictly applied and the requirements are rarely, if ever, waived. The foregoing does not suggest that a charge may not be varied, in accordance with the ordinary rules relating to the amendment of criminal charges.
The initiating documents in these proceedings, which purport to be Statements of Charge are bad in form and do not, substantially or otherwise, amount to a document that is capable of fitting the description of a Statement of Charge. Further, even if it were to be a Statement of Charge, albeit in inappropriate form, it is insufficient to specify the contempt and the conduct which is said to be in contempt in such a manner that a person charged with such contempt could answer the charge.
A Statement of Charge must prescribe and particularise all matters relied upon that is said to amount to contempt. Even if an affidavit were to fill in details that are not otherwise provided in the Statement of Charge, that would not be sufficient to comply with the rule: King v Healthcare Complaints Commission [2011] NSWCA 353 at [82]-[83]. As earlier stated, the particular acts amounting to contempt must be precisely stated in such a form that would allow any alleged contemnor to be able to answer the contempt: Matthews v ASIC [2009] NSWCA 155 at [38]-[46].
Two other issues need to be noted. The capacity to punish for contempt is an inherent feature of a superior court of record: R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208; [1951] HCA 3.
As part of the inherent jurisdiction of a superior court of record, the exercise of the jurisdiction to punish for contempt is discretionary. A court has the capacity, even where it is satisfied that the contempt may be established or has been established to decline to exercise the jurisdiction: Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors (2014) 47 VR 527; [2014] VSCA 261 at [142].
The second additional matter to which the Court refers is the actus reus and mens rea necessary to commit a criminal contempt by obstructing or interfering with the due administration of justice. The actus reus is an act calculated to obstruct or interfere with the due administration of justice. The mens rea that must exist at the time that the act is performed is an intention to do such an act.
The defendants submitted that it is not necessary to prove that the act itself was done with the motive of interfering with the due administration of justice and cited Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 at [24]-[38]. The defendants reserved their right to challenge the correctness of that analysis.
However, such a principle applies in circumstances where there is otherwise no right to engage in the conduct or do the act that is said to give rise to the contempt. Where, as here, the act of an alleged contemnor is the exercise of a right, in this case granted by statute, an intention to interfere in the administration of justice is that which makes the action improper: Clarkson v Mandarin Club Limited (1998) 90 FCR 354; [1998] FCA 1685.
In large measure, the reason such intent is required, where the act is otherwise permitted and/or required, is that a lawful act which has the effect of obstructing or interfering with the due administration of justice is not contempt unless it is an act calculated so to do. In this area there is a degree of overlap between that which is required of the actus reus and that which is required of the mens rea.
Either the act, in the case of conduct that is required or permitted otherwise by law, is not one calculated to obstruct or to interfere with the due administration of justice or, if it is otherwise a lawful exercise of a right to engage in such conduct, an intention to obstruct or to interfere with the due administration of justice would be necessary.
Having made that comment, in relation to conduct that is not otherwise the lawful exercise of a right, the purpose to interfere in the administration of justice need not be the sole purpose. On the other hand, in such a circumstance, the prosecutor does not need to establish a subjective intention to interfere in the due administration of justice.
Lastly, I reiterate that the procedures for contempt are strictly applied and no person may be committed for contempt unless that person: has been informed of the specific offence alleged; informed of the manner in which it was committed; and the person has been given the opportunity to answer that charge: Ulman v Live Group Pty Ltd (2018) 367 ALR 95; [2018] NSWCA 338, citing, at [105] and [106], Coward v Stapleton (1953) 90 CLR 573 at 579-580; [1953] HCA 48.
[4]
Summary dismissal
In my view, the proceedings for criminal contempt are governed by the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter "UCPR"): Kostov v YPOL Pty Ltd (2018) 19 NSWLR 1002; [2018] NSWCA 306 at [16]-[17]. If it were not, then the Court, as a superior court of record, has a discretion to dismiss summarily, at least in circumstances where the alleged contemnor can show the clearest of cases for such a course of conduct: O'Connor v Hough [2016] 2 Qd R 543; [2016] QSC 4 at [16]. In the exercise of that inherent jurisdiction, the principles ought to be exercised in the same manner as prescribed in the UCPR for civil proceedings, or so similarly as not to be substantially different.
As a consequence, UCPR r 13.4(1) entitles the Court to dismiss summarily any proceedings or claim for relief "if no reasonable cause of action is disclosed". As the Courts have made clear, this bar will be satisfied when the proceeding or claim is "so obviously untenable that it cannot possibly succeed" or is "manifestly groundless" or is "hopeless": General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at [1]-[9]; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 at [91].
Similarly, there is a prescribed (r 13.4(1) of the UCPR) and there exists an inherent power to dismiss proceedings summarily, or to dismiss summarily particular claims for relief, if the document on the court file is "scandalous, frivolous, vexatious, irrelevant or oppressive".
Further, UCPR r 4.10(4) permits the Court to refuse to accept a document, notwithstanding that an officer of the Court, such as the Registrar, has accepted the document for filing: see UCPR r 4.15(1).
Summary dismissal may occur where the charge for contempt or the proceedings alleging contempt are "entirely without substance": Markisic (Oliver) v The Commonwealth [2006] NSWCA 150; ASIC v Sigalla [2010] NSWSC 606 at [12]; Henri Walter Aram v The Owners Strata Plan No 20175 [2012] NSWSC 1273 at [5]; Mahaffy v Mahaffy [2013] NSWSC 245 at [31]-[33]. In the case of contempt, a summons and/or proceedings may be struck out for deficiency of form, as earlier stated: see Ali v Collection Point Pty Ltd (2010) 274 ALR 618; [2010] FCA 1066 and where there has been undue delay in the bringing of the charge such as to amount to an abuse of process: Taylor v Ribby Hall Leisure Ltd [1998] 1 WLR 400.
[5]
Substantial defects
In discussing the contempt against individuals, or the allegations of contempt, I have treated the matter as if they have been properly filed and the charges served (and that the charges are in good form).
The allegations of contempt against Adam Wilkinson and Simon Raper allege, as I understand it, that there is a breach of an undertaking. As already indicated in these reasons for judgment, there has been no undertaking to the Court.
If there were an undertaking, and the undertaking is not specified or particularised, it must be an undertaking inter partes. Assuming, without deciding, that an inter partes undertaking was given by either or both of the foregoing named persons, such an undertaking cannot give rise to a contempt: U & I Global (Australia) Pty Ltd v Tasman-Warajay Pty Ltd (1995) 60 FCR 26; [1995] FCA 794 at [30]-[31]; Zomojo Pty Ltd v Hurd (No 5) [2014] FCA 537 at [52]; Midland Metals Overseas v Australian Cablemakers Association (No 2) [2018] NSWSC 1128 at [24].
Allegations are also made against Elizabeth Daley, who, the Court is aware, was acting solely as a solicitor employed in the office of the Crown Solicitor, with carriage of the matter on behalf of the Commissioner. Ms Daley swore an affidavit, on information and belief, in the course of interlocutory hearings, which was relied upon by the defendants in these proceedings. Ms Daley also sent correspondence to the plaintiff.
At a later time John McDonnell, Assistant Crown Solicitor, assumed carriage of the matter. There is absolutely no basis to allege that Ms Daley had any role in the conduct that is said to be in contempt and there is absolutely no basis to suggest that Ms Daley acted in any way other than wholly appropriately in the conduct of the proceedings before the Court. The same can be said of Mr McDonnell. There is no evidence of any contempt or allegation of conduct that could possibly give rise to contempt. The conduct of court proceedings cannot be contempt.
It is to some extent difficult to discern accurately the matters about which the plaintiff complains. Nevertheless, to the extent that one can discern the conduct about which complaint is made, there is no reasonable prospect of success. Nor is there any possibility of success. The allegations are "manifestly groundless" and "hopeless" and "obviously untenable". In other words, the allegations are "entirely without substance".
As for the matters against the Commissioner and employees or officers of Corrective Services NSW, the same epithets may be used as an appropriate description of the allegations of contempt. The plaintiff was in custody at the time of this alleged contempt.
The allegation he makes is that the conditions of his custody, namely, initially, no access, or insufficient access, to a laptop computer, or an appropriate laptop computer, were the result of the proper regulation of the prisons. Such regulation, in a manner which does not treat the applicant differently from any other prisoner, cannot of itself, establish an act calculated to obstruct or interfere with the due administration of justice.
In substance, the plaintiff alleges that it was a contempt for him to be denied a particular laptop computer (or any laptop computer) because it made it more difficult for him to defend his District Court proceedings than if he were at liberty.
There are a number of answers to that proposition. First, there is no evidence that it was more difficult. Secondly, if the District Court proceedings were to have been conducted unfairly as a result of the lack of the plaintiff's ability to conduct his defence, then the District Court would have, and could have, granted a stay of the prosecution against him.
Thirdly, the Commissioner, and officers of Corrective Services NSW, have no function to assist the prisoner to conduct his proceedings beyond that which is required by the Court for the purpose of a fair trial. The question is, and would remain, not whether it was more convenient for Mr Liristis to have a laptop computer in the preparation of his trial, but whether, without a laptop computer, his trial would be unfair such as to justify a stay.
In the latter case, it would be for the Court, either this Court, or the District Court where his proceedings were to be held, to make orders to facilitate the provision of the laptop computer or to stay the proceedings. On any analysis, it cannot amount to a contempt to conduct and administer a prison in the ordinary way: see Brazel v Westin [2013] VSC 527 at [21(4)]; Raymond v Honey, supra.
There is nothing in the Charge for contempt, the Affidavits or the conduct of the proceedings, with which the Court is more than familiar, that would allow the Court to come to the conclusion that there is even the remotest chance that the plaintiff can establish that the conduct of the Commissioner, or officers of Corrective Services, NSW, were in any way intended to interfere with the plaintiff's defence of his criminal charges or had that effect.
[6]
Matters of procedure
As already stated, the Summons and Charges are manifestly defective. No Statement of Charge was subscribed to or filed with the original Summons.
In and of itself this would be sufficient to strike out the proceedings. However, notwithstanding the opportunities that have been given to the plaintiff to correct or seek to correct that omission, and without suggesting that it was capable of remedy, the plaintiff has been unable so to do and has made no reasonable attempt so to do.
Next, no Statement of Charge has been filed against either of the defendants in the proceedings. The statements of charge, so-called, have been filed against certain named persons and dealt with so that the principles can be ascertained. Nevertheless the procedure is fundamentally wanting.
Thirdly, there are various versions of the statements of charge against Ms Daley, Sandra Morgan and Dion Ngatal. Two copies of each Statement of Charge was served. Each has different particulars. The plaintiff has not clarified, or sought to clarify, the particulars and/or Statement of Charge upon which the plaintiff seeks to rely.
Lastly, as earlier stated, the statements of charge do not state, with precision or otherwise, the acts or omissions that constitute the alleged contempt. The details are absent; the manner in which it is said to be contempt is missing; while some of the details are contained in affidavits that the plaintiff has sought to file, procedurally such a process is wholly irregular and incompatible with the jurisdiction that requires strict compliance in the commencement and processing of charges.
In particular, the Statement of Charge against each of Messrs Wilkinson and Raper does not specify the acts or omissions that is said to have been performed by either one of them or what precise acts or omissions are said to have removed the ability of the plaintiff to do as he suggests he should have been able to do. There is no capacity for either Mr Wilkinson or Mr Raper to be able to deny that a particular act occurred or that they were not the persons who performed such an act, or omitted to perform an act, that they were required to perform.
In relation to the statements of charge against Ms Daley, Ms Morgan, Mr Ngatal or Mr Dixon, the allegations are statements of conclusion that do not specify the acts or omissions that each of the persons are said to have performed or in which they are said to have engaged. It is impossible to answer these charges or to conduct a case that would defend them.
Similarly, the statements of charge against Corrective Services Officers Cooper and Wagner do not even recite conclusions. They are entirely silent as to the acts or omissions in which either one or both of the said Corrective Services Officers are said to have engaged.
Over and above the foregoing, the statements of charge do not identify, with precision or otherwise, how it is said the acts in question (to the extent they are identified) have interfered with the administration of justice in the District Court proceedings.
[7]
Conclusion
The conduct of the plaintiff in pursuing allegations of contempt against either of the defendants and in relation, assuming a pursuit of individuals is intended, against the identified individuals, has been the subject of considerable delay on the part of the plaintiff/prosecutor. Adjournment after adjournment has been sought. Lately, those adjournment applications have not been granted.
Allegations of contempt, particularly criminal contempt, are serious. Individuals, in particular, should not have hanging over their heads an allegation of a common law crime. That is particularly so when the material upon which the plaintiff/prosecutor relies is so obviously flimsy and untenable and has been the subject of so many procedural irregularities.
I adhere to the statements that have been made that a court should interfere in contempt proceedings by way of summary dismissal only in the clearest of cases. This is one of those clearest cases. As already stated, the allegations of the plaintiff/prosecutor are so obviously untenable that they cannot possibly succeed; are manifestly groundless; and are hopeless.
I cannot but comment that the defendants, particularly the Commissioner, in the substantive proceedings went over and above that which was required in order to seek to facilitate some assistance to the plaintiff/prosecutor in defending his criminal proceedings. As earlier stated, after discussion with the Court, usually on the suggestion of the Commissioner, the Commissioner outlined steps that the Commissioner would take to seek to facilitate the provision to Mr Liristis of a laptop computer, and, ultimately, his preferred laptop computer. The security measures that were sought were both reasonable and appropriate.
The notion that these unspecified allegations should continue to hang over the heads of individuals and even the Commissioner is a matter which, itself, brings the Court into disrepute. I commend the Commissioner and his legal representatives on the approach to the matters that were raised substantively. It was an unnecessary but most appropriate attitude that reflected the "model litigant" approach to which governments should aspire and I commend Counsel, who appeared in the substantive proceedings, for facilitating that assistance.
These proceedings for contempt have no substance. There is no possibility, even remote, that they could be successful. Further, they have been commenced improperly and irregularly. The Court ought not allow any further indulgence to the plaintiff/prosecutor.
For reasons associated with the merits of the case, as well as the procedural requirements, these proceedings will be summarily dismissed.
The Court makes the following order:
1. The proceeding be summarily dismissed;
2. The plaintiff pay the defendants' costs of and incidental to the proceedings.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 February 2020