Procedure - Contempt, attachment and sequestration - Contempt - What constitutes - Scandalising courts and judges.

Procedure - Contempt, attachment and sequestration - Contempt - What constitutes - Interference with course of justice and administration of law - In general.

R v Dunbabin [1935] HCA 34; (1935) 53 CLR 434, applied.

John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351; R v Collins [1954] VicLawRp 7; [1954] VLR 46; Re Wiseman [1969] NZLR 55, followed.

Judgment Number: [2003] TASSC 50

JANINE MARCIA MARTIN v THOMAS EDWARD TRUSTRUM (No 2)

1 The applicant sued the respondent for defamation, the action being determined in her favour (Martin v Trustrum [2003] TASSC 22). As normally occurs, the parties were involved in pre-trial procedures, including pleadings, discovery, interrogatories, and the like, which often involve hearings conducted by a judge or Master of the Court in Chambers in accordance with the Supreme Court Rules 2000 ("the Rules"). Orders made on these preliminary questions are called interlocutory and, as Odgers, Principles of Pleading and Practice, a classic text first published in 1891, observes:

"The vast majority of interlocutory matters are dealt with by summons in Chambers, but a few are heard on motion, that is to say, in open Court. Occasionally, a summons which raises matters of general interest is adjourned into Court for argument and decision." (Ogders, (1952), 15 ed, 4, at n6.)

2 A hearing in Chambers is ordinarily held in the absence of members of the public or representatives of the media, not because its outcome ought be exempt from scrutiny, but because it is simply a procedural step designed to achieve a fair and orderly public trial. A hearing in Chambers, of long standing in most jurisdictions throughout the world, has been adapted to accord with principles of modern case management. Any order made in Chambers is subject to the ordinary process of judicial review.

3 The office of Master is of long standing and originated in the Court of Chancery, at least as early as the 13th Century and persons holding the office sat with the Chancellor (probably as assessors) although some claimed the right of "interposing their opinion in the making of orders and decrees" (see generally, The Chancery Master, Ball (1961) 57 LQR 331). The role and importance increased in the 19th Century as the function of Sergeants-at-Law, who, since the 13th Century, had been responsible for written pleadings, diminished (1 Will IV, C 22) until becoming obsolete by the enactment of the Judicature Acts of 1875 (Milson, Historical Foundations of the Common Law, 1969, 39 - 40). The office, originally ministerial or administrative (Hunter, Proceedings in a Suit in Equity, 1873, 6 ed, 107 - 109), became more judicial in nature following the enactment of the Common Law Procedure Act 1854, 1 Vict, C 30 (Smith, Proceedings in An Action at Law, 1873) and the making of Rules of Supreme Court 1883 O LIV (UK) (see generally, United Engineering Workers Union v Devanayagam [1967] 2 All ER 367, par3).

4 In Tasmania, the office was established by the Charter of Justice 4 Geo IV C 96, 9 Geo IV C 83 and Imperial Warrant, 18 August 1823 and although abolished in 1957 (Supreme Court Act 1957), was re-established by Act 41 of 1959 while a concurrent amendment to the Supreme Court Civil Procedure Act 1932 (Act 40 of 1959), empowered the holder of the office, sitting in Chambers to:

"... do any such thing and to transact any such business and to exercise any such jurisdiction in respect thereof as by virtue of any enactment, custom, rule, or practice of court may be done, transacted, or exercised by a judge in chambers, other than -

(a) a matter affecting the liberty of the subject;

(b) appellate jurisdiction, excluding review of a taxation of costs by an officer of the Court other than the Master;

(c) an order of review under the n application for a werit of certiorari, prohibition, or mandamus;;

(d) an application for an injunction or for a mandamum under subsection (12) of section eleven;

(e) an application relating to the custody of children; and

(i) involving the construction of a will or settlement;

(ii) under the Testator's Family Maintenance Act 1912; or

(iii) involving a question of title to property other than, where the application is under the Married Women's Property Act 1935, personal property."

5 The Master is only entitled to sit in Chambers (Supreme Court Civil Procedure Act, s197(f)) and the recurrent claim by the respondent of the holding of "secret-hearings" is but a misunderstanding of a requirement imposed by Parliament. The Master is a judicial officer (In re Slack [1876] VicLawRp 33; [1876] 2 VLR (E) 204).

6 The respondent, who represented himself, was involved in interlocutory matters before the Master of this Court prior to the intended hearing of the action. On 24 September 2002, the applicant, through her solicitors, sought orders that the respondent make sworn answer to interrogatories and make formal discovery of documentation which he might use at trial. In response, the respondent filed and served an affidavit one day before the listed hearing date of 8 October. On that day he attempted to read the affidavit into evidence on the hearing before the Master. Counsel for the applicant objected to all or part of the affidavit on the basis that its contents were not relevant to the application. The respondent persisted with his attempt to read the contents of the affidavit into evidence, following which counsel reformulated his objection as one based on the Rules, r508, which provides:

(a) order that any scandalous material in an affidavit be struck out; or

(b) order that any affidavit containing scandalous material be removed from the file.

(2) In an order made under subrule (1), the Court or a judge may order that the costs of the application be paid as between practitioner and client."

and asked that the affidavit be removed from the court file. In his formulation, counsel stated:

"I object to the affidavit being read in its entirety and I rely on r508, Master. In my submission the affidavit is scandalous. It's a unwarranted attack upon this Court or the officers of this Court, in particular yourself, the Chief Justice, Evans J, it's an attack upon Senior Counsel of this Court. There are no issues in this affidavit which go to why Mr Trustrum cannot answer the interrogatories or to provide a sworn list of documents. It's simply an unwarranted attack upon numerous persons and, in my submission, it's scandalous."

7 From this "tactical" but, in my opinion, unnecessary decision, the events giving rise to these contempt proceedings flow. Following discussion the Master ordered:

"That the Registrar cause the affidavit to be removed from the file."

8 The Master, conscious of the difficulties of an unrepresented litigant, permitted the respondent a longer time in which he could make answer and discovery and was then requested by counsel for the applicant to make an order for costs. In response, the respondent attempted to read, as a statement, the contents of his affidavit which included reference to an attempt some 12 months previous to have the Master disqualify himself, in the same proceedings, on the ground of bias "in favour of counsel for the plaintiff".

9 There were further objections and the matter proceeded inconsequentially before the Master made an order for costs in favour of the applicant.

10 It has been necessary to consider the course of that hearing in order to understand what later transpired and the basis of the contention that the endeavours to read into evidence were but an attempt to use the court transcript as a vehicle for wider publication.

11 The respondent did not comply with the orders made on 8 October 2002 and the matter was brought back before the Master on 10 December 2002. The applicant was represented by different counsel, Mr Gunson SC. Mr Gunson SC read into evidence the contents of a solicitor's affidavit which purported to rebut the contention of the respondent that he was unable to make proper discovery because some of the relevant material had been seized by police. Significantly counsel then sought an order in accordance with the Rules, r372, for an order of final judgment in the action for defamation. It was this application which explains the respondent's claims of grievance that the Court conducted secret, ie, not available to public scrutiny, hearings which ultimately determined the legal rights of the parties in an action.

12 Following the application for judgment because of non-compliance, counsel for the applicant drew the attention of the Master to an affidavit sworn by the respondent on 9 December 2002, the day before the hearing, and which is the subject of these contempt proceedings. It is not clear from the transcript why he chose to do so, but presumably it was intended to form a basis for a default order. Whereas on the previous hearing the respondent had persistently attempted to "read into the transcript" apparently scurrilous material, on this occasion the material was referred to by counsel for the applicant. Having drawn the attention of the Master to the affidavit, counsel sought, pursuant to r508, that it be struck out, which it eventually was. Counsel then proceeded to read into evidence the contents of the affidavit, with interjections by the respondent, which included:

13 Counsel did not attempt to read the affidavit aloud, but referred the Master to it by reference to paragraph. The respondent attempted to have the passages read aloud, stating his reason to be:

"... I wanted all for the transcript, sir. This is for the transcript"

"... There are ulterior reasons for Mr Trustrum wanting this material to go onto the transcript, Master. In a previous affidavit he made it clear that his sole purpose in requiring transcripts is to publish his defamatory material of and concerning practitioners of this court and of and concerning members of the court on the Internet. He can do that of course by obtaining the transcript and believes in some way he obtains some protection. For that reason I'm being cautious and quite deliberately not reading this material, this dreadful material, of and concerning - onto the transcript."

14 The competing attempts to include or exclude the material from the "transcript" is only understandable if one assumes that the respondent believed that later publication of the "transcript" would attract privilege attaching to court proceedings and that conversely senior counsel attempted its exclusion for the same rationale.

15 It is likely that a person who publishes such material before trial (Felkin v Herbert 10 Jur NS 62 or 9 LTR 635; Fisher, Vol 2 827) or as a vehicle for libel (In re Sir John Moore Gold Mining Company 37 LTR 242) would be liable for contempt (see also Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241).

16 Irrespective of the correctness of the rationale, since these were "proceedings in Chambers" there is paradox in reading into evidence material which is sought to be removed from the court record. Presumably the purpose of r508 is to permit the exclusion of evidence deemed to be irrelevant and a product of malicious accusation or suspicion, lest in some way it be elevated to an unmerited status. It is placed before the court in order to have it excluded. The process can sometimes create problems (R v Resource Management and Planning Appeal Tribunal; ex parte Walter & Wissler [2001] TASSC 36; Walter & Anor v Resource Management and Planning Appeal Tribunal & Anor H3/2001, 3 May 2002). The significance here is whether the presentation of the material to the Master constituted a contempt in the face of the court.

17 In response to the reading of the affidavit and the application that it be removed from the file, the respondent stated:

"Well, sir, quite a lot has happened since I last saw you and I would expect it to be removed - efforts to be made to be removed from the file because you see Mr Gunson is the only lawyer I've heard who can sit in a court for an hour and ramble on about what I've said without ever once quoting one word of what I've said. And this word - his favourite word is 'ulterior motive'. I have an ulterior motive for this. Yes, and you are quite right. My ulterior motive is to stop Gunson finding against me on Mrs Martin's behalf and seizing my assets. It's very very simple: it's survival. There's nothing difficult about that to understand. So fortunately for me since I last saw you the Chief Justice has contacted me and we've had a little bit of correspondence and he's sent me some useful suggestions and some documents. And I've told the Chief Justice that I'm quite - I'm quite satisfied that my transcripts are going to be - my affidavits are going to be struck out. But now it's on record that I suspect they are going to be struck out well all this can be rewound at a later date. This isn't the end - Mr Gunson probably thinks this is the end of the story, that's the story of his life, but it isn't the end of the story with me this is the beginning of the story. The real story is yet to come. So if this court, or you or Mr Gunson decide to strike out that affidavit don't worry it's coming back. You can get rid of it at your end you can't get rid of it at my end."

18 The affidavit was removed, with the Master concluding:

"The defendant has filed an affidavit. It does not assert that the orders have been complied with. It does not complain in any comprehensible way, at least, the failure to comply. The affidavit is largely concerned with complaining about the court processes, the judicial officers involved and the plaintiff's legal practitioner. The complaints are expressed in highly insulting and provocative terms and do not bear directly on any issue in dispute. The affidavit is substantially irrelevant to the matter before me and is self evidently scandalous. It is offensive to common notions of propriety and etiquette. I infer that its sole or predominant purpose is to cause affront. In accordance with Rule 508 I order that the affidavit of the defendant sworn the 9th December 2002 be removed from the file."

19 The hearing continued and when the respondent was asked if he wished to present evidence in "opposition to the application for judgment", he replied:

"And finally I'd like you to confirm that you have refused to disqualify yourself on the grounds of bias on three occasions in this case; starting off last November and then in October this year and presumably today."

and stated as his reasons for re-seeking disqualification on the ground of bias which led to the following exchange:

"MR TRUSTRUM: And finally I'd like you to confirm that you have refused to disqualify yourself on the grounds of bias on three occasions in this case; starting off last November and then in October this year and presumably today.

MASTER: Thank you. I have had no applications from you to disqualify myself on the grounds of bias and so that matter hasn't been dealt with by me.

MR TRUSTRUM: Well I would like you to do that, sir. Would you kindly oblige me.

MASTER: Would you state the grounds upon which you make the application please?

MR TRUSTRUM: On the grounds that you are a personal friend of Mr Gunson and have been for about thirty years to my knowledge. You are the recent President of the Tasmanian Bar Association and those two grounds are quite sufficient in my view.

MASTER: Thank you. I don't need to hear from you, Mr Gunson, I'll rule on that now."

20 The hearing continued, but the question of the contents of the affidavit already removed was again raised by counsel, stating:

"... The only other matter, Master, that I would draw your attention is the effect of a litigant filing with the court, and it matters not that it has been ordered to be removed from the court file, filing with the court an affidavit such as that which is filed - has been filed in this matter on the 9th December. It is clear on the authorities, in my submission, that a contempt of the court - - "

21 Re-agitation of the issue of the contents of the affidavit re-ignited the complaints of "secret trials", the unfairness of the discovery process and the perceived ill-treatment of the respondent, designed to destroy him. The Master made an order extending the time for compliance until 23 December 2002 but, as he was permitted to do, included a self-executing order in the event of default. Such is not an unusual course. The entry of judgment against the respondent on 24 December was not a result of "secret" proceedings, but as a consequence of non-compliance. Compliance would have ensured a hearing in open court and a determination based on the evidence and the merits of the respective cases of the parties. The Master, having made the relevant orders of discovery, the answer to interrogatories, and the self-executing order, returned to the application to refer the offending material to either or both the Director of Public Prosecutions and the Attorney-General. He suggested that he retire to consider the relevant factual material and legal principles, to which the respondent replied:

"Well what would be the point of my - because I'm not apologising for them and I'm suggesting you send them to the Director of Public Prosecutions and the Attorney General so do I really need to be here?"

and proceeded to oppose any sending "... unless you sent it to the ... Attorney General too, sir." The exchange concluded:

"MASTER: ... I consider that there's sufficient in the affidavit to justify consideration being given as to whether or not it amounts to a contempt of court without forming an opinion about the matter myself. In those circumstances I direct the Registrar to cause the affidavit of Thomas Trustrum sworn 9 December 2002 to be sent to the Director of Public Prosecutions for consideration as to whether it amounts to a contempt of court and if it does for consideration of any - -

MR TRUSTRUM: There should be - that would be a jury trial wouldn't it, sir?

MR TRUSTRUM: That would be a jury trial with a bit of luck if it went to court?

MASTER: I'm not here to answer questions, Mr Trustum, I'm here to deal with applications that are before me."

22 The paradox continues. The offending affidavit, removed from the court file, is now placed before me by the learned Director of Public Prosecutions to whom it was sent.

23 The material comprised in the affidavit is a product of confusion and obsession. Apparently during a hearing on 6 August 2001, the respondent was advised that the continuance of the interlocutory proceedings would be heard "in Chambers" which he took to be "hearings of this defamation case (a civil action) ... in secret", although separately he accepted that it meant:

"until the 'ultimate resolution of these proceedings' which I presume meant until the case was ready for trial."

24 It may be that the application for final judgment because of non-compliance with procedural orders exacerbated the process of confused and irrational thinking, since in the affidavit he stated that a different hearing:

"18 - Judge Blow repeated the Chief Justice's claims that - as and when the case was ready for trial - all the secrecy would vanish; and the public and the media would finally discover what had been fraudulently and criminally CONCEALED from them, for the past eighteen-months.

19 - The Judge's belief that 'justice' must not only be done but be SEEN AND HEARD to be done (except when 'in Chambers' of course), was shaken two weeks ago when he was informed - by the Writer - that DJ Gunson SC; and 'Master' Holt were planning to fraudulently DISMISS HIS DEFENCE - and ENTER JUDGEMENT, in secret.

21 - By exploiting a 'loop-hole' in the Judge's invention, 'Master' Holt and 'Basher' Gunson believed they had perfected a method of defrauding Defendants which no-one would ever KNOW; because the entire fraud was carried out in secret - 'in Chambers'.

23 - So on Friday of last week (6 December) I received a letter from the Judge, showing me how to STOP Mr Gunson and Master Holt DISMISSING MY DEFENCE AND ENTERING JUDGEMENT, at the next secret-hearing they had planned 'in Chambers'; for 10 December.

24 - Gunson and Holt's plans to 'win' the defamation case for Mrs Martin; at a secret-hearing no-one else in the WORLD would ever hear about or know about (except the Judge and the Undersigned) was finally crushed.

The Chief Justice enclosed several pages of the Supreme Court Rules with his letter, as they relate to DISCOVERY (and discovery of documents which had been seized in particular ) being information which Holt and Gunson had concealed from me for past 18-months.

It is therefore clear that the Chief Justice of Tasmania has indicated to me that I should follow the Supreme Court Rules he has supplied - to frustrate the plans of Holt and Gunson to fraudulently and secretly DISMISS DEFENCE / ENTER JUDGMENT." [Original emphasis]

25 The course of this thinking is not easy to ascertain. But it is clear that he believed the application for summary judgment was a device to be thwarted only through the provision of information by others, including the learned Chief Justice, which would result in:

"25 - 'Justice' ... slowly coming back to life, in Tasmania."

26 Had he confined the exposition of his thinking to those matters, the consequence would have been the exclusion of the material on the ordinary bases of relevance, hearsay and conjecture. But he raised his claimed grievances to one of corruption, conspiracy and abuse of judicial office. The affidavit further alleged matters, both general and specific, to this case:

"6 - Mr Gunson was not only given use of the secret-chamber. He was provided with a 'Master' to run the secret-hearings; who would scrupulously and impartially organise everything in Mr Gunson's favour.

7 - A 'Master' is a kind of trainee judge; and learning how to run SECRET HEARINGS (Tasmania only) is part of his training. The 'Master' in this case being a Mr Stephen Holt.

8 - Mr Holt and Mr Gunson had known each other and been law-students then Law Society colleagues for more than 30 years; and they were now working well together as partners, in running 'secret hearings' behind locked doors, in the Supreme Court in Hobart.

16 - 'Master' Holt had refused to discharge himself from the secret-hearings on three occasions, for perceptions of bias. Without the 'Master' of course, Mr Gunson could not be guaranteed to win Mrs Martin's defamation case."

"11 - It had not taken the old friends long to work out a scheme between them, for substantially increasing Mr Gunson's income (and reputation) for 'winning' more and more cases.

12 - Their racket was as follows. Mr Gunson - or 'Basher' to his learned-friends - would channel his potentially more profitable jobs (cases) through Holt; who was completely in charge of the Supreme Court's SECRET CHAMBER.

13 - Holt would then impartially adjudicate Gunson's cases, in Gunson's favour. All of this would be carried-out in complete secrecy. No-one could EVER find out (in theory)."

"15 - Question - how can a corrupt trainee-judge destroy Supreme Court records, right under everyone's noses; without being questioned?

Answer - by calling the records (Tom Trustrum's affidavits in this case) 'scandalous'; then 'striking out' the affidavits and ordering the Registrar - Mr Ian Ritchard - to remove them from the Supreme Court's files !

(Ritchard is also the man who hangs the 'SECRET HEARING - KEEP OUT' signs on the door, for Gunson and Holt)." [Original emphasis]

"21 - By exploiting a 'loop-hole' in the Judge's invention, 'Master' Holt and 'Basher' Gunson believed they had perfected a method of defrauding Defendants which no-one would ever KNOW; because the entire fraud was carried out in secret - 'in Chambers'.

24 - Gunson and Holt's plans to 'win' the defamation case for Mrs Martin'; at a secret-hearing no-one else in the WORLD would ever hear about or know about except the Judge and the Undersigned) was finally crushed.

Note: DJ 'Basher' Gunson had arranged to win the defamation-case for Mrs Martin, with a Law Society identity. Mr Gunson would bill the Law Society around $ - which the pair would split. Mrs Martin resigned when she discovered SHE would not be sharing in the jackpot." [Original emphasis]

27 The application is for the respondent to "be committed for contempt of court" on the ground that:

"On or about the 9th of December, 2002 the accused filed or caused to be filed, and hence published, an affidavit sworn that day which contained allegations that the Honourable Mr Justice Blow and the Master of the Supreme Court of Tasmania were corrupt, had unlawfully conspired to secretly predetermine cases in general and in particular against him and had committed frauds in general and in particular against him. Such publication was a contempt of the Supreme Court of Tasmania."

28 Contempt is said to be a matter which interferes with the proper conduct of a judicial body or officer (see generally (1909) 25 LQR 238, Fox) or which has:

"... a tendency to prejudice or embarrass the conduct of proceedings actually pending in a court." (John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351.)

29 Impairment of public confidence in the judicial process and the propriety of a verdict or judgment reached, forms the basis of the doctrine. Criticism concerning the judgment reached or the form of reasoning adopted is both valid and necessary to society. Unmeritorious attacks on the probity of the process or the integrity of the court conducting that process go not to the merits of the conclusion reached, but to the manner in which they were reached. Contempt committed through pre-trial publicity is punishable not because of the material disclosed, but because publication might taint the outcome which is to be determined on the basis of evidence produced at trial. Attacks based on lack of impartiality might have a "tendency to embarrass the Tribunal itself in arriving at its decision" (R v Collins [1954] VicLawRp 7; [1954] VLR 46 at 49) and are regarded as a particularly serious form of contempt (R v Editor of New Statesman (1928) 44 TLR 301). As Rich J observed in R v Dunbabin [1935] HCA 34; (1935) 53 CLR 434 at 442:

"Such interference may arise from publications which are calculated to embarrass a tribunal in arriving at its decisions. Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law, or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges, and excites misgivings as to the integrity, propriety, and impartiality brought to the exercise of the judicial office."

30 Contempt may be committed "in the face of the court" or "out of court". The filing of an affidavit intended to be read as part of the proceedings or publication by forwarding the material to a court officer can constitute a "contempt out of court" (R v Collins (supra); Re Wiseman [1969] NZLR 55).

31 In this case, the affidavit filed was intended to be read as part of the proceedings. Its reading by the opponent's counsel deprived the affidavit of constituting a contempt "in the face of the court" but not of the latter category.

32 The material was comprised in an affidavit filed in court proceedings. Irrespective of attempted or intended publication outside of the hearing, its meaning ought be considered in light of how it might be perceived in the context of those proceedings. The affidavit, having referred to the refusal of the Master to disqualify himself (par16 already stated), continued:

"17 - Judge Allan Blow then followed 'Master' Holt's example, by refusing to discharge himself from the secret-hearings, on the grounds that he had only known 'Basher' Gunson socially for 30 years - and had only known Mrs Martin socially for four or five years.

18 - Judge Blow repeated the Chief Justice's claims that - as and when the case was ready for trial - all the secrecy would vanish; and the public and the media would finally discover what had been fraudulently and criminally CONCEALED from them, for the past eighteen-months.

19 - The Judge's belief that 'justice' must not only be done but be SEEN AND HEARD to be done (except when 'in Chambers' of course), was shaken two weeks ago when he was informed - by the Writer - that DJ Gunson SC; and 'Master' Holt were planning to fraudulently DISMISS HIS DEFENCE - and ENTER JUDGEMENT, in secret.

20 - All of the Judge's careful training of the pair, in running secret-hearings 'in Chambers' - strictly for the protection of reputations like Mrs Martin's - was being abused. They were now exploiting the Judge's ethical methods for their own PROFIT." [Original emphasis]

33 The language belies the respondent's claim to be a journalist or one skilled in the use of language. Making allowance for incoherence produced by anger and self-centred vision, the sense I make of it is that:

(1) Justice Blow followed the example of the Master in refusing to disqualify himself.

(2) The response of his Honour was that professional and social contact (impossible to avoid within a profession, especially in Tasmania) would not warrant disqualification through claimed bias, actual or perceived.

(3) His Honour had reassured the respondent that the trial would be publicly conducted and that "justice must not only be done, but be seen and heard to be done".

(4) His Honour's careful training (accepting the respondent to have known the use of a comma, and discounting the uses of a hyphen) was abused, despite the judge's ethical methods.

(5) There remained a loophole in the judge's "invention" which was exploited. The use of the word "invention" defeats me. Either his Honour invented "open justice", "a loophole", or the word should read "intervention" which, likewise, defies meaning.

(6) The judge would nevertheless know of impropriety despite the belief that only "Mr Gunson and 'Master' Holt imagined that no-one would know".

34 If such be the meaning of a careful reading of the paragraphs in the context of that material, then it does not constitute contemptuous matter. The passages do not impair public confidence in the courts (R v Hoser and Kotabi Pty Ltd (No 2) [2001] VSC 525 at par46). Given that these proceedings involve the risk of sanction, a meaning ought be given which favours the interest of the maker of the statements.

35 My conclusion is that the material comprised in the affidavit, pars17 - 20, does not constitute contempt.

36 No such conclusion can be reached in relation to this material. The allegations are no more than contemptuous allegations, absent evidence, held together by a tortuous line of reasoning which attempts to justify victimhood. Doubtless the unrepresented respondent felt aggrieved by the operation of what can often be a "bruising and expensive" pre-trial procedure. Doubtless he felt to be opposed by a former officer of a powerful statutory body with the resource of experienced counsel. Courts should be mindful that the "good sense of the community is a sufficient safeguard in curbing undue and improper criticism of judges" (Ex parte Attorney-General; Re Goodwin [1969] 2 NSWLR 360 at 362, see also Bell v Stewart (1920) 28 CLR 419, Rich J at 429), especially in cases involving an unrepresented litigant (O'Hair v Wright [1971] SASR 436), but here the accusations transcended an impetuous emotional response. They were prepared statements alleging judicial corruption for financial gain. They were allegations of fraud for a share of costs awarded in a scheme dependent on "secret" hearings. The allegations were not confined to the specific case, but extended to those of a course of criminal conspiracy.

38 The parties have suggested that this Court undertake a two phase process and that the findings be pronounced before the hearing as to sanction. For the purpose of that hearing, the finding of contempt is that of publication of an affidavit intended to be read which comprised allegations that the Master of the Supreme Court:

(1) conducted secret hearings designed to favour the interest of a particular counsel because of a long held association;

(2) determined the outcome of proceedings in a manner which advantaged the financial interests of a particular counsel;

(3) was himself corrupt and engaged in fraudulent and criminal conduct;

(4) engaged in fraudulent and criminal conduct for personal financial gain; and

(5) did so in a particular case, namely the defamation action brought by the applicant against the respondent.

39 The hearing as to the appropriate orders consequent on the findings is adjourned.