Maddocks v Brown & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HOWIE J: The plaintiff by summons seeks the following orders: 1. An order that the Registrar be directed to commence proceeding for punishment of contempt arising out of the proceeding No. 1227 of 1986 in the Industrial Commission from 15th September 1989 and continuing on the grounds set out in the affidavit of John David Maddocks dated 18th January 2002 and filed herein. 2. An order that the within contempt be purged by the defendants by payment of such sums as are owing together with interest forthwith. 3. Such further order as to this Honourable Court might seem fit. 2 The defendants by notice of motion seek an order either dismissing the summons pursuant to Supreme Court Rules (the Rules) Part 13 rule 5 or striking out the summons pursuant to Part 15 rule 26. The basis of this application is that the Summons is misconceived in the relief it claims from this Court. In support of this application the defendants rely upon Killen v Lane [1983] 1 NSWLR 171 and Capaan v Joss (NSWCA, 6 June 1994). 3 It is unnecessary for the resolution of the present application to detail the allegations made by the plaintiff against the defendants that are said by the plaintiff to amount to contempt of the Industrial Commission of NSW. In brief the plaintiff, who in September 1987 was appearing as counsel before the Industrial Commission, asserts that the defendants, who were both solicitors at the relevant time and acting for the plaintiff's client, misled the Commission in respect of the payment of fees to the plaintiff when costs arising from the proceedings in the Commission were being taxed. 4 This allegation is made in the context of a dispute, which arose between the parties, over the payment of fees arising when the first defendant's firm acted for the plaintiff in proceedings in the Court of Appeal. There is some history of litigation between the parties since 1989 involving claims and cross-claims arising from both the proceedings before the Commission and the Court of Appeal and what monies were due to whom. There was also an unsuccessful complaint lodged by the plaintiff to the Law Society arising from this dispute. 5 At the heart of the proceedings, which the plaintiff now seeks to bring, are allegations by him that the defendants committed criminal offences during the course of proceedings before Justice Sweeney. The plaintiff alleges that both defendants have committed a contempt of court in that they wilfully made false statements in respect of the payment of counsel's fees to the plaintiff during the taxation of the costs that were to be paid as a result of the proceedings before the Industrial Commission. 6 The plaintiff relies upon Part 55 rule 11 of the Rules which is relevantly as follows: Motion or proceedings by the registrar

11 (1) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court or of any other court, the Court may, by order, direct the registrar to apply by motion for, or to commence proceedings for, punishment of the contempt.

(2) Subrule (1) does not affect such right as any person other than the registrar may have to apply by motion for, or to commence proceedings for, punishment of contempt. 7 The plaintiff asserts that the summons is in accordance with rule 11(1) and, although he concedes that he would be entitled to bring proceedings in his own name against the defendants for contempt, he maintains that he is entitled to choose to seek to have this Court refer the matter to the Registrar as an available alternative procedure. He argues that it is an appropriate procedure in this case because the defendants were solicitors at the time of the alleged contempt and because of the difficulty he would have in obtaining the necessary documents and transcripts that would prove the contempt. 8 The defendants, however, contend that proceedings for contempt cannot be instituted in the manner in which the plaintiff has commenced the present proceedings and that the summons is misconceived. 9 In Killen v Lane an appeal was brought against an order made for costs in relation to proceedings brought in the Equity Division of this Court directing the Registrar to commence proceedings for contempt under Rule 11(1). The proceedings for contempt were said to have arisen by the conduct of one of the parties in the proceedings by the destruction and suppression of evidence. The respondent was not a party to the original proceedings before the Court but was allowed to be present and make submissions on the question of the reference to the Registrar. After the proceedings for contempt had been finalised in the Court of Appeal and after intervention by the High Court, costs orders were made in relation to the contempt proceedings against the party that sought the commencement of those proceedings. It was by way of an appeal from the order for costs that Part 55 and rule 11 came to be considered by the Court of Appeal. 10 It finding in favour of an argument by the appellant that the judge had no power to make an order for costs in relation to proceedings under rule 11, the Court of Appeal made observations as to the appropriateness of the procedure that led to the referral of contempt proceedings to the Registrar. Moffit P, with whom the other members of the Court agreed, held that the judge had no power to make the costs order because he erred in considering that the procedure before him was a judicial proceeding when it was in truth ministerial. The Court then went on to consider the nature of proceedings for contempt and how they could be commenced. 11 Moffit P, after noting that Part 55 did not alter the substance of summary proceedings for the punishment of contempt or rights of persons to commence or in relation to the commencement of such proceedings, stated (at 176): The power of the court to commence summary proceedings, either in the most informal manner, that being where the contempt is in the face of the court or to do so in a more formal way by its officer on its direction issuing and serving some originating process, has always been recognized as a power exercisable by the court on its own motion. To accord to a person a right to make an application to the court, to be determined judicially by it, that the court so commence and maintain summary proceedings to punish for contempt of court, either by it ordering the arrest and by it orally charging the contemnor, or by directing an officer of the court to commence and pursue such proceedings on its behalf not only lacks the support of precedent or authority, but would be inconsistent with the nature and purpose of the power which the court has long exercised entirely on its own responsibility

Further examined the position is this. The rules (Pt 55) do not in terms confer a right upon a person to so apply or for the court to entertain such an application. This is so whether the court commences the proceedings under Div 2 by arrest and oral charge or under Div 3 by the court causing written originating process to be issued by its officer on its behalf. Neither of the relevant rules being r 2 and r 11(1) which are in Pt 55 (which relates to summary proceedings for "the punishment of contempt" and hence criminal contempt), makes provision that a person may apply for an order for the commencement of proceedings in this manner. These two rules do not so provide by empowering the court to institute such proceedings upon the allegation of some person as an alternative to its own view that a contempt has been committed. Therefore for such a right to be found it would need to be shown to be conferred by the rules by implication or to exist otherwise. 12 Moffit P examined the Rules and came to the conclusion that the right of a person to apply to the Court for the commencement of contempt proceedings by the Court or the power of the Court to entertain such an application was not conferred either expressly or by implication. His Honour went on (at 177): As there has not been conferred by the rules expressly or impliedly upon a person alleging that a contempt has been committed a right to apply to the court for the court itself to commence and maintain proceedings for criminal contempt, can it be found otherwise under the general law?

The initiation by the Crown or other constituted authority of criminal proceedings generally, or the initiation of proceedings by the court or Attorney-General to punish for criminal contempt, involves different considerations to proceedings by a person for the exercise by the court of a power to make an order which will enforce private rights. A person may allege to the Crown or authority having the power to commence criminal proceedings that a criminal offence has been committed or may allege facts which constitute such an offence, but has no right to compel the Crown or such authority or, in the case of criminal contempt, the court or the Attorney-General to commence proceedings or to seek a court order having this consequence.

The right of the court to act on the allegation of some person is and formerly was as now provided in r 2 and r 11(1), so that the province of any person is to do no more than inform or allege, so as to leave the commencement of proceedings entirely a matter for the court as a ministerial decision taken of its own motion. The provision in these rules is consistent with the practice which preceded the rules. 13 The decision in Killen v Lane was followed and applied in Capaan v Joss. In that case the appellant had been an unsuccessful defendant in proceedings brought by a bank to recover monies lent to him and his wife. Judgment was entered against him and the bank then sought to obtain possession of a property that had been the subject of a mortgage to the bank. The appellant sought orders that the Court institute contempt proceedings against, amongst others, officers and agents of the bank. The appellant did not himself seek to commence proceedings for contempt but sought orders that the Court do so. A notice of motion, purportedly under Part 55 rule 11(1), was dismissed by a judge of this Court and an appeal was brought against that order. 14 The Court of Appeal dismissed the appeal by affirming the correctness of Killen v Lane and noting that the procedure laid down in that decision was not unfair because there was an alternative procedure available, being that a person can commence proceedings in his or her own name without the Court acting as an intermediary. 15 When confronted by what appears to be an insuperable barrier to his proceedings posed by these two decisions, the plaintiff argued that the construction given to Part 55 by the Court of Appeal did not accord with the wording of rule 11 and would render the Part otiose. He sought to distinguish the two decisions on the basis that in those cases the person seeking to commence the proceedings for contempt had been a party to earlier proceedings before the Court whereas the plaintiff was a stranger to the Court. 16 I do not believe that the decisions to which I have referred can be distinguished in the way that the plaintiff seeks to do. Those decisions, in particular Killen v Lane, were concerned with the general construction of rule 11(1) and the procedures which should be adopted in any case where a person alleges that there has been a contempt of court, howsoever and by whomsoever that allegation is raised. If a former party to proceedings in this Court cannot utilise the rule to commence proceedings for what is alleged to be a contempt of this Court, it is difficult to see why the procedure should be available to a person who alleges a contempt of some other court. 17 The summons is dismissed. The plaintiff is to pay the defendants' costs. **********

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