Mensink v Registrar of the Federal Court of Australia

Submission to jurisdiction (Appeal Grounds 2 and 3(a))

On appeal, it is necessary for the appellant to show error in the judgment of the primary judge: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [21] (Allsop J with Drummond and Mansfield JJ agreeing). This has a particular significance in this case, as the submissions as now framed were not advanced in the same terms before the primary judge. Some of the authorities relied on by the appellant in support were not relied upon at all below, or not in the same manner, as in this Court. The appellant's submissions, at times, were levelled at a high level of generality and failed to grapple with the nature of the contempt proceedings and the evidence before the primary judge. Further, the appellant referred to aspects of the authorities in isolation from their context, and the nature of these proceedings. It is important to recall that these are civil proceedings, albeit of a criminal nature. This is not a criminal proceeding.
The appellant's argument in relation to submission to jurisdiction cannot be accepted.
First, the appellant relied below on r 10.42, and r 10.43 as the Rules required to be complied with in relation to service of the contempt application and statement of charge. As with any rule, the Court has power to dispense with compliance with it: r 1.34 of the Rules. The original documents were served pursuant to an order made by Dowsett J on 28 March 2017 for substituted service: PJ [11] and [46]. The issue before the primary judge was not whether the appellant had been served, but whether leave was required to serve him, as he was physically outside the jurisdiction: r 10.43(1), PJ [49]. The primary judge concluded it was, observing that Dowsett J appeared to proceed on the basis that Mr Mensink was overseas and service under the order he made would occur in Australia: PJ [46]-[49]. As leave was not obtained, the order for substituted service was, under the terms of r 10.43(1), ineffective for the purpose of the contempt proceeding: PJ [50]. It is observed that the Rules have since been amended such that if served today, leave to serve outside the jurisdiction would not be required.
In so far as the appellant submits that there had been no effective service of the amended statement of charge pursuant to those provisions, the submission is flawed. Rule 10.43 applies to service of an originating application. The amended statement of charge was not the commencement of a new proceeding in respect to different material facts. Rather, it involved the Registrar taking over the prosecution of the contempt proceeding in accordance with the orders of Reeves J on 5 August 2020, amending the statement of charge to reflect the change, and clarifying a point complained about by the appellant in an earlier challenge. There is no basis to suggest that the amended statement of charge was required to be served in accordance with the Rules relating to service of an originating application, including service outside the jurisdiction. The order made by Reeves J on 24 September 2020 for filing and serving any amended statement did not attract those provisions. Certainly, the appellant's lawyers at that time did not consider leave under r 10.43 to be necessary, as they requested service on them of all documents, as evident from the history of the proceedings above at [14]-[20].
Second, this Court has recognised that a respondent can, by their conduct, voluntarily submit to the jurisdiction, authorising the Court to exercise its jurisdiction in the matter over them: Howard v National Bank of New Zealand Limited (2002) 121 FCR 366; [2002] FCA 1257 (Drummond J); City of Swan v McGraw-Hill Companies Inc (2014) 223 FCR 295; [2014] FCA 442 (Rares J). This includes that it is open to parties to agree to a mode of service outside the Rules, with the result that acting in accordance with that agreement would be effective to give the Court jurisdiction in the action over that respondent: Howard at [5], [19]. The primary judge correctly summarised those principles at PJ [52]-[55]. It is sufficient for present purposes to observe that in assessing whether a party has submitted to the jurisdiction, the question is: whether the steps were necessary or useful to any action taken by the party other than in objecting to the jurisdiction. A step that is not consistent with or relevant to the challenge to the jurisdiction, will usually be a submission to that jurisdiction: Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 at [38], cited in City of Swan at [114]. If a respondent: seeks relief from the Court wider than relief setting aside service or associated with such relief, such as relief on the merits of a claim, ordinarily, he, she or it will have waived the objection to jurisdiction: Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310 at 335-336, cited in City of Swan at [117].
Third, the appellant's repeated reliance on paragraph [26] of the primary judgment as reflecting the respondent's position is misplaced. There the primary judge observed: The Registrar accepts that the Court's jurisdiction to hear and determine the contempt proceedings is only enlivened if Mr Mensink has been properly served with the contempt application and statement of charge. The Registrar submits this has occurred through compliance with the orders for substituted service.
The appellant takes the above statement in isolation and out of context. As evident from the conduct of the proceeding below, the respondent submitted that "the defect is cured by Mr Mensink's submission to the jurisdiction": PJ [51].
Fourth, the appellant's submission is based on the proposition that contempt proceedings are criminal in nature. It is appropriate to consider what is meant by that characterisation. This was addressed in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd and others (2015) 256 CLR 375; [2015] HCA 21 (French CJ, Kiefel, Bell, Gageler, Keane and Nettle JJ). The issue there arose in considering whether the appellant (a corporation) was amenable to an order requiring discovery of documents in proceedings brought by the respondent for the appellant to be punished for contempt for disobeying orders of the Court by establishing a blockade of a construction site to which the respondent supplied building materials. The appellant's principal argument relied on the companion principle, that the moving party cannot compel the party charged with contempt to testify or produce documents to assist it in making its case: Boral at [23]. French CJ, Kiefel, Bell, Gageler and Keane JJ rejected the submission. At [35], the plurality succinctly observed: The appellant's principal argument regarding the companion principle must be rejected because the companion principle is an adjunct to criminal proceedings; and the contempt proceeding is not a criminal proceeding.
The plurality explained that an aspect of the accusatorial nature of a criminal trial is that an accused person cannot be compelled to assist the prosecution prove its case: Boral at [36]-[37]. After considering the nature of the hearing, the plurality concluded at [45]-[47]: [45] In Witham v Holloway, the plurality expressly noted that the process whereby a contempt proceeding is resolved is a civil "hearing" not a criminal "trial". McHugh J also expressed the view that proceedings for contempt of court to punish a respondent are "civil and not criminal proceedings". [46] These observations point to a significant deficit in the arguments advanced for the appellant: those arguments do not explain how the contempt proceeding has proceeded as a criminal proceeding without the engagement of any rules of criminal procedure. The progression of the matter through the various levels in the hierarchy of courts was at all times regulated by the laws relating to the civil jurisdiction including the Rules [of the Victorian Supreme Court]. The companion principle cannot be applied to usurp the authority of the Rules in this regard. [47] In summary then, it may be accepted that the companion principle is a fundamental aspect of a criminal trial, which is not to be "whittled down" by an expansive interpretation of legislation that is not clear in its intention. But no criminal trial is in prospect here, and so there is no reason why the language of r 29.07(2) [in relation to discovery] should not be applied according to its tenor in the contempt proceeding.
As to the nature of the contempt proceedings, Nettle J at [66]-[67] observed: [66] The contempt alleged in this case is a criminal contempt …The relief which is sought is thus punitive, not coercive or remedial; and, therefore, the proceeding is a penal proceeding. Even so, it is a civil proceeding. It is tried by judge alone and, subject to the qualification explained below, the applicable rules of procedure are the rules of procedure which apply to other civil proceedings. [67] The qualification is that some of the safeguards applicable to criminal proceedings also apply to a civil proceeding for criminal contempt; including, in the case of a defendant who is a natural person, the privilege against self-incrimination and the privilege against self-exposure to penalty. Their application rests on "accepted notions of elementary justice" and reflects the fact that a proceeding for committal may result in "very serious interference with the liberty of the subject". But they do not prevent CFMEU being ordered to make discovery and give production of particular documents.
As can be seen, the safeguards there identified are of a nature far removed from the circumstances of this case.
In support of the penultimate sentence in paragraph [67] of Boral, Nettle J cited Doyle v Commonwealth (1985) 156 CLR 510; [1985] HCA 46 at 516 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ), a case relied on by the appellant for the proposition that safeguards appropriate to criminal proceedings apply to contempt proceedings. The Court in Doyle observed that the requirement for personal service is not indispensable in a contempt case, and substituted service may be ordered in a proper case. In Doyle, no effort had been made to effect personal service and no order for substituted service had been made. Further, there was no evidence that the notice of the Court's orders had been brought to the attention of the defendants to the contempt proceedings. The issue of submission to jurisdiction did not arise. The underlying rationale for generally requiring personal service is explained in Doyle at [516], reciting a passage from Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48 at 579-580 (Williams ACJ, Kitto and Taylor JJ): it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard; R. v. Foster; Ex parte Isaacs. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v. Piggott. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment. Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon. …
The underlying rationale is that the contemnor is on notice so that they can defend the proceedings. That underlying rationale is not inconsistent with the principles of submission to jurisdiction applying to contempt proceedings.
Boral makes clear that contempt proceedings are civil, and the rules of civil procedure apply. In relation to service, as the authorities referred to by the primary judge reflect, submission to the jurisdiction can cure any deficiencies in service. We note the appellant does not suggest that submission to jurisdiction does not apply generally to proceedings in this Court, just that it does not apply to contempt proceedings.
Fifth, as occurred in Boral, the appellant here relies on passages from X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 (French CJ, Hayne, Crennan, Kiefel and Bell JJ) and Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 (French CJ, Crennan, Kiefel, Bell and Keane JJ) to found his submission as to the nature of a criminal trial, and its safeguards.
The appellant submits that one of those criminal safeguards meant that he was entitled to raise this matter of jurisdiction at the commencement of his trial. He submits that prior to the commencement of his trial on the contempt charges, issues of submission to jurisdiction do not relevantly arise. It is submitted that the trial was the time he was "put to his election".
In his written submissions in reply at [15] and [17]-[18], the appellant articulated the proposition as follows: [15] The appropriate time to raise issues regarding service of the statement of charge and amended statement of charge was the trial because Mr Mensink was entitled until that time to refrain from advancing any opposition to the charges (c/f RS[11]). This is one of the safeguards to which he was entitled, reasoning by analogy with the criminal jurisdiction. … [17] In particular it was a necessary incident of a truly accusatorial trial, falling within the description of an accepted notion of elementary justice, emanating from the very serious interference with the liberty of the subject in contempt proceedings… [18] Mr Mensink could not be taken to have submitted to the jurisdiction in circumstances where he was afforded the safeguard of not assisting the prosecution to prove its case. That is, Mr Mensink was not required to assist the prosecution to prove service of the statement of charge and amended statement of charge by submitting to the jurisdiction. The invitation by the Court that Mr Mensink do so cannot be construed as inconsistent with, or corroding, that fundamental privilege. Nor can the communication produced in response to that invitation (cf RS[8]).
There are several issues with that reasoning. Underpinning his submission is the assertion at [15] which, as advanced, must be understood as including the proposition that his conduct before that time cannot be considered at the trial. No authority is cited for that proposition, but rather in the footnote to that paragraph, it is apparent the appellant is attempting to extend a principle, acknowledging there is none currently recognised. Further, the appellant submits that he could not submit to the jurisdiction as it "was not a matter that he could or should be compelled to concede before the trial had been commenced". Even if it be accepted, for the purpose of argument, that the appellant was entitled to refrain from advancing a position until the commencement of trial, it does not follow that issues as to jurisdiction can only be taken at the commencement of trial (and not earlier) or that, if taken at that time, what had occurred up until the commencement of trial is not relevant to determining the issue. Even if a person is entitled to refrain from doing anything, if they choose not to do so by actively taking steps in the proceedings, that conduct is plainly relevant.
The submissions are premised on the assertion in [18], that the appellant has the safeguard of not assisting the prosecution, which does not withstand scrutiny. The authorities relied on do not support the proposition of a "safeguard of not assisting the prosecution to prove its case". As is clear from X7 and Lee, an accused cannot be compelled to assist the prosecution: see Boral at [37]. X7 and Lee related to the accused having been summoned to attend a compulsory examination in which they were obliged to answer questions, under threat of punishment, about matters relevant to a later trial. As described in Lee at [33], "the prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof". Moreover, that an accused person cannot be compelled to assist the prosecution to make its case, is the companion principle, and is the companion of criminal proceedings: Boral at [37]. Contempt is not a criminal proceeding: Boral at [35], [37]. At a factual level, the appellant's description in [18] that their acts were the result of an invitation by the Court to do something, is plainly inaccurate. As illustrated above when reciting the history of the proceedings, the appellant was not compelled to submit to the jurisdiction, rather he chose to do so.
In oral submissions the appellant referred to Di Natale v Kelly (2006) 66 NSWLR 130; [2006] NSWCCA 201 (Grove J, Hall J and Smart AJ), to support his submission of the entitlement to take the service point at the hearing. Properly read, this does not establish what is contended for by the appellant. This was not an authority referred to the primary judge.
Di Natale stems from a prosecution for offences in the Magistrates' Court. It is trite to observe that it is not a contempt proceeding, or one involving the civil rules of procedure. There, summonses were issued to the appellants less than 28 days before the return date, in breach of s 63(2) of the Justices Act 1902 (Cth): Di Natale at [4]. The appellants acknowledged that they received the summonses and signed and lodged a form described as a written "Notice of Pleading". They each indicated on the forms that they were intending to plead "Not Guilty". There was no complaint of any asserted breach of s 63(2) recorded by the appellants in the notices: Di Natale at [5]-[6]. The issues before the Court, identified at [15], relevantly included whether the requirements of s 63(2) may be waived by a person to whom the summons was directed, and if so, whether it was in fact waived. Hall J (with whom Grove J agreed) observed that it "is a characteristic of a right susceptible to waiver that it is one that was introduced solely for the benefit of the party said to have waived the right": Di Natale at [40]. The appellant relied on the passage at [64]: On one view, there was no necessity for the appellants to declare their hand on the validity of service until the proceedings were actually listed for hearing before the Local Court. Until then it may be said, with some justification, that there could not have been an abandonment of the irregularity of service point …
However, at [65] Hall J states: The question may be recast in the following terms: should the appellants, by their conduct in completing and lodging their notices which conveyed their intention to plead not guilty to the charges against them, be thereby found to have been precluded from subsequently raising the validity of service point?
Hall J then considered the notices which were filed, and concluded, given the purpose of the notice, that the completion of them was not conduct inconsistent with taking the service point at the hearing: Di Natale at [74]. That is, the appellants had not waived their rights to dispute the validity of the service. Ultimately, Di Natale turned on the interpretation of s 63(2) of the Justices Act.
That said, Di Natale at [64], does not suggest that the time for taking the service point, is only the first day of the hearing of a criminal trial (let alone in a contempt matter). It is prefaced by the phrase, "on one view", and is followed by the recast question at [65], that looks to the conduct of the appellants in that case. The recast question at [65] is inconsistent with the appellant's case, that previous conduct of the appellant cannot be considered. Di Natale does not support the appellant's submission that there is an entitlement to take the jurisdictional point (based on the failure to serve the proceeding) in a contempt proceeding on the first day of the hearing, that the issue does not arise before that time and, as such, any conduct by the contemnor before that time is irrelevant to the question of jurisdiction. It does not support the proposition that no conduct can ever amount to waiver. If the appellant takes the point on the first day of the trial as here, the Court is entitled, in determining whether it has jurisdiction to hear the case, to consider not just personal and substituted service, but the conduct of the appellant as to whether he has submitted to the jurisdiction.
Sixth, the appellant referred to some authorities said to illustrate the paramountcy of safeguards in criminal proceedings. The appellant's contention (at least at times) was that as contempt is in the nature of a criminal matter, the safeguards include that only personal service of the proceeding on an alleged contemnor (with strict compliance of the Rules) will suffice. The high point of the appellant's case in that regard are the observations in In re B (JA) (An Infant) [1965] Ch 1112 at 1117-1118 (Cross J). The passage relied on is as follows: Committal is a very serious matter. The courts must proceed very carefully before they make an order to commit to prison; and rules have been laid down to secure that the alleged contemnor knows clearly what is being alleged against him and has every opportunity to meet the allegations. For example, it is provided that there must be personal service of the motion on him even though he appears by solicitors, and that the notice of motion must set out the grounds on which he is said to be in contempt; further, he must be served as well as with the motion, with the affidavits which constitute the evidence in support of it. It is clear that if safeguards such as these have not been observed in any particular case, then the process is defective even though in the particular case no harm may have been done. For example, if the notice has not been personally served the fact that the respondent knows all about it, and indeed attends the hearing of the motion, makes no difference. …
However, the example given in In re B is an obiter comment, made by a single judge over 60 years ago, in another jurisdiction. It is inconsistent with High Court authority, for example Doyle, where the Court recognised that in appropriate circumstances, there can be service other than personal service in contempt proceedings. The authorities relied on accept that in contempt proceedings, that requirement is not indispensable: Doyle at 517. In re B does not advance the appellant's case.
The appellant ultimately accepted that substituted service could suffice (but only if it occurred in strict compliance with the Rules). By so accepting, the appellant recognised that the purpose of service can be achieved by other means. It is difficult to reconcile the rationale behind service, as explained in Stapleton set out at [40] above, with the appellant's submission that a contemnor cannot submit to the jurisdiction. If the contemnor takes a step in the proceeding not consistent with or relevant to an objection to the jurisdiction, he is aware of the proceeding and the charge.
We also note, as the respondent submitted, even in criminal proceedings, an irregularity with service on the respondent is not necessarily fatal to the proceeding, and a respondent can submit to jurisdiction: Dixon v Wells (1890) 25 QBD 249 (Lord Coleridge CJ); Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369; [1938] HCA 7 (Latham CJ, Starke, Dixon, Evatt, McTiernan JJ).
Seventh, the primary judge referred to the relevant authorities in relation to the principles applicable to determining whether there has been a submission to jurisdiction. As illustrated by the history of the proceedings recited above, his Honour's conclusion at PJ [56] that: …not only has Mr Mensink unequivocally and expressly submitted to the jurisdiction of the Court, but he has actively engaged in challenging the proceedings on issues broader than those merely concerning service is correct.
The appellant made considered forensic strategic choices to bring various applications to end the proceeding, unrelated to any issue of jurisdiction. Rather, he utilised or exercised the jurisdiction of the Court to advance various applications, including on their merits (and by filing an affidavit as to the merits). For example, the appellant's application for summary judgment dismissing the proceeding was directed to the merits of the amended charge. The appellant essentially asked the Court to exercise its jurisdiction in the matter, over him, and in his favour (as against the respondent). If he had succeeded, an issue estoppel would have been created against the respondent, which the appellant could have invoked to prevent the respondent pursuing such a claim in the Court: see for example Astro Exito Navegacion SA v WT Hsu (The Messiniaki Tolmi) [1984] 1 Lloyd's Rep 266 at 271, cited in City of Swan at [116]. Further, and most bluntly, the appellant wrote to the respondent, expressly submitting to the jurisdiction.
Nothing about the accusatorial nature of a criminal proceeding prevented those matters being considered in the application the appellant made to stay or dismiss the contempt charges. He expressly and voluntarily wrote to the respondent stating he submitted to the jurisdiction. Further, he did so in a context where Reeves J had raised that any issue of jurisdiction, if the point was to be taken, should be considered first. That was entirely sound. The appellant, knowing that, chose to submit to the jurisdiction. He chose to bring other applications. It can be inferred the appellant was aware of the consequences.
As Lord Evershed put it in Re Dulles; Settlement (No 2); Dulles v Vidler [1951] Ch 842 at 847: It is, of course, plain that where a question of jurisdiction arises a man cannot both have his cake and eat it. He cannot fight the issue on the merits, and at the same time preserve the right to say, if the worst comes to the worst, that the court has no jurisdiction to decide against him.

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