Prothonotary of the Supreme Court of New South Wales v Dangerfield

Supreme Court of NSW|2015-08-19|Before: Adams J

Solicitors: Crown Solicitor's Office (plaintiff) Aboriginal Legal Service (NSW/ACT) Limited (defendant) File Number(s): 2014/361845

Introduction

On 9 December 2014 the Prothonotary commenced proceedings in this Court for contempt against Elizabeth Dangerfield. The contempt allegedly arose out of her refusal to answer questions as a witness in summary prosecution proceedings in the Local Court. Ms Dangerfield, by notice of motion, seeks a declaration that the learned magistrate failed to afford her procedural fairness when determining whether to refer the contempt to this Court for determination, with a consequential setting aside of the summons upon the basis that the decision of the magistrate to refer her to this Court pursuant to s 24(4) of the Local Court Act 2007 (NSW) was void.

The relevant legislation Local Court Act 2007 (NSW) Section 24 Contempt of court (1) The Court has, if it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the same powers as the District Court has in those circumstances. (2) … (3) … (4) Without prejudice to the powers of the Court under this section, if it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court, whether committed in the face or hearing of the Court or not, the Court may refer the matter to the Supreme Court for determination. (5) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate. District Court Act 1973 (NSW) Section 199 Contempt (1) In this section, "contemnor" means a person guilty or alleged to be guilty of contempt of court committed in the face of the Court or in the hearing of the Court. (2) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the Court may: (a) by oral order direct that the contemnor be brought before the Court, or (b) issue a warrant for the arrest of the contemnor. (3) Where the contemnor is brought before the Court, the Court shall: (a) cause the contemnor to be informed orally of the contempt with which he or she is charged, (b) require the contemnor to make his or her defence to the charge, (c) after hearing the contemnor, determine the matter of the charge, and (d) make an order for the punishment or discharge of the contemnor. (4) The Court may, pending disposal of the charge: (a) direct that the contemnor be kept in such custody as the Court may determine, or (b) direct that the contemnor be released, and such a direction is sufficient authority for the contemnor's being kept in custody or released, as the case may be. (5) … (6) … (7) … (8) … Section 203 Power to refer allegation etc of contempt to Supreme Court (1) Without prejudice to the powers of the District Court under section 199, where it is alleged, or appears to the District Court on its own view, that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, the District Court may refer the matter to the Supreme Court for determination. (2) On any matter being referred to the Supreme Court under subsection (1), the Supreme Court shall dispose of the matter in such manner as it considers appropriate. Supreme Court Rules 1970 (NSW) Rule 55.11 Motion or proceedings by the registrar (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. (3) Where: (a) it appears to the District Court on its own view that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, and the District Court refers the matter to the Court for determination under section 203 (1) of the District Court Act 1973, (c) it appears to a Local Court on its own view that a person is guilty of contempt of the Local Court, whether during a proceeding before the Local Court or otherwise, and the court refers the matter to the Court for determination under section 27B of the Local Courts Act 1982, the registrar must commence proceedings for punishment of the contempt, and no direction from the Court shall be necessary to enable the registrar to do so. (4) Subrule (3) does not affect such right as any person other than the registrar may have to commence proceedings for punishment of the contempt prior to the commencement of proceedings by the registrar. (5) Subrule (3) does not apply in the event that a person other than the registrar commences proceedings for punishment of the contempt prior to the commencement of proceedings by the registrar. (6) Subject to the rules and to any Act, where, pursuant to a power conferred by or under an Act, a court or other body or person refers or reports a matter to the Court with a view to the Court dealing with a possible contempt of the court, body or person, the registrar shall: (a) take advice from the Crown Solicitor as to whether the registrar should take proceedings for contempt in respect of the matter, (b) unless the Court otherwise orders, act in accordance with the advice, and (c) inform the Attorney-General of the matter.

The decision to refer

It is clear that the magistrate, on a number of occasions, warned Ms Dangerfield of the potential consequences for refusing to answer the questions properly asked of her and gave her an opportunity to obtain legal advice about the significance of her refusal to do so. She obtained that advice. However, he did not either implicitly or explicitly ask her whether she wished to make submissions on the question, firstly, whether her refusal to answer the questions amounted to contempt, secondly, whether his Honour should determine the question of contempt for himself or refer it to this Court, or thirdly, whether he should do neither in light of the whole of the circumstances and any matter which she might wish to bring to his attention. It is his omission to do so which, in substance, is the basis for the relief sought in this Court.
The nature of the function to be exercised by a magistrate, when considering which of these three courses should be adopted, is undoubtedly ministerial (see Killen v Lane (1983) 1 NSWLR 171 per Moffitt P, at 179). Killen v Lane concerned a costs application by a party relating to procedures undertaken by a nisi prius judge of the Court who directed the registrar of the Equity Division to commence proceedings for criminal contempt in the Court of Appeal. The question of costs depended, to a significant degree, on the status of the party seeking to have the contempt proceedings undertaken. Moffitt P said (at 179) - "Accepting that the power of the court to commence or direct the commencement of proceedings for contempt is ministerial, the question does not arise whether natural justice required that the proposed contemnors be heard on the question whether proceedings should be commenced against them. It is sufficient to say that the decision to commence proceedings appears to give rise to the same type of considerations as were found relevant in Dennis v The Law Society of New South Wales (Court of Appeal, 17th December, 1979, unreported, 2380 at 2394 and see 2387-2393), where it was held that the defendant in that legislative context did not have a right to be heard on the question whether disciplinary proceedings should be commenced against him. In the present case the rules themselves provide for the manner in which the contemnor is made a party to proceedings in which he will be entitled to be heard and further provide the means by which he is to be informed of what is alleged."
A different view of the correct procedure, though as it seems to me, not as to the character of the decision as ministerial or administrative, appears to have been taken in the Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459, although the Court was not referred to Killen v Lane. In Maniam (No 1), it was alleged that a medical practitioner had declined contumaciously to attend the District Court to give evidence in answer to a subpoena. The powers of the District Court in connection with contempt are prescribed under ss 199 and 203 of the District Court Act, set out above. Where a contemnor is alleged to be guilty of contempt committed in the face of the court or in the hearing of the court by virtue of s 199, the court can set in train procedures designed to bring the contemnor before the court to determine whether or not a contempt has been committed, and if so, what punishment is appropriate. Section 203 of the District Court Act, however, permits the District Court, rather than itself undertaking the contempt proceedings, to refer the contemnor to the Supreme Court, which will then decide guilt or otherwise and determine punishment. So far as the Local Court is concerned, where there is a contempt in the face of the court, it may deal with it pursuant to the court's implied powers, or it can act in accordance with s 24 of the Local Court Act. Section 24(4) is, for all practical purposes, in identical terms to s 203(1) of the District Court Act. A complicating feature was that, having directed the contemnor to show cause, the judge in effect required him to do so by giving evidence, rather than, for example, calling evidence or making some oral submissions. This raised the question whether what the contemnor said on that occasion was admissible against him in the Supreme Court. A refusal to obey a subpoena is, of course, not a contempt in the face of the court, and accordingly, could not be dealt with under s 199 of the District Court Act, but had to be dealt with in accordance with s 203. In the course of giving reasons, Mahoney JA in Killen v Lane said (at 470) - "It has been submitted that the procedure followed by his Honour was wrong. I do not think that it was. His Honour, in my opinion, followed a procedure appropriate in this Court for the exercise of the power given by s 203. It was proper that he first satisfy himself as to the appearance of contempt. There was no reason why he should not do this by detailing facts to the doctor and asking whether he disputed any of them. It then was necessary for the judge to consider whether he would exercise the power to refer the matter to the Supreme Court. He was, in my opinion, in the circumstances of the present case under an obligation to give the doctor an opportunity to show why he should not do so. There is no precise procedure stipulated for this. It is in my opinion, at the least, not inappropriate that, if the doctor desired to show reasons why the power should not be exercised, he should be given the opportunity to do so by sworn evidence: it may be that, strictly, sworn evidence is the only or ordinary method of doing so. [Emphasis added.] After hearing the doctor's evidence, the judge formally charged him with contempt. It is not clear whether this is necessary. It is arguable that a formal charge is not warranted or authorised. But that which s 203 authorises to be referred to the Supreme Court is 'the matter'. The term 'matter' in this sense ordinarily indicates a proceeding between parties oralis: at least it may do so. And, I think, until there is a charge in respect of the apparent contempt, it may be that there is no 'matter' which may be referred. I do not think that it is necessary to express a concluded view upon this question because, even if it was not necessary for the judge formally to charge the doctor, that is an irregularity which does not affect the validity or the propriety of the present proceeding before this Court. There is, in my opinion, nothing which turns upon it."
Dealing with the similar question, Hope AJA said (at p 480) - "As it seems to me, Sinclair DCJ was considering whether he would exercise the power conferred by s 203 to remit the matter, being the question whether Dr Maniam was guilty of contempt for not complying with the subpoena, to the Supreme Court for determination. This required him to make two decisions. First, to decide whether it appeared to him on his own view that Dr Maniam was guilty of contempt of court, and secondly whether he should remit the matter to the Supreme Court. It was completely proper for Sinclair DCJ to have given Dr Maniam an opportunity to be heard before he made these decisions, whether or not a failure to have done so would have been a denial of natural justice, as it might have been. The objection is essentially to the words 'I formally order that you show cause' and the absence of advice that he need not say anything, and that anything he did say might be given in evidence." [Emphasis added.]

Submissions

So far as Maniam (No 1) is concerned, the Crown Advocate emphasised that it was not a case of contempt in the face of the court, so that it was plainly appropriate (perhaps necessary) for the judge to have sought an explanation for the apparent disregard of the subpoena, since there may well have been a satisfactory one. Furthermore, Mahoney JA expressly desisted from expressing a concluded view as, in effect, did Hope JA. However, I do not accept that Mahoney JA's view about the need to give the doctor an opportunity to explain his conduct was qualified. The reservation he expressed concerned whether it was necessary to charge him. Hope JA did not need to determine the question of natural justice, since he accepted that the course adopted by the judge, which afforded natural justice, was proper. Nevertheless, it is clear his Honour preferred the view that omitting to give a contemnor an opportunity to be heard before the relevant decisions were made would have been a denial of natural justice. Kirby P did not discuss this question.
The Crown Advocate, taking up the point made in Killen v Lane in the passage quoted above as to the similar character of a referral of contempt of disciplinary proceedings, referred to Medical Board of Queensland v Byrne [1958] HCA 40; 100 CLR 582, in particular to the judgment of McTiernan J (at 591) - "… [The board decides] whether the offence is one for which the practitioner should be subjected to disciplinary punishment. Having formed these opinions in the affirmative the board merely makes a charge. Nothing that the board does in so doing subjects the practitioner to final judgment or punishment and so there is no prima facie obligation on the board to hear the practitioner before arriving at the affirmative opinion and there is nothing in the statute which expressly or impliedly requires such a hearing." Coming to the same conclusion, Fullagar and Taylor JJ based it on the characterisation of the decision as an administrative one.
Reliance was also placed by the Crown Advocate on the point made by Meagher JA (Clarke JA agreeing) in Commissioner of Police v Reid (1989) 16 NSWLR 453 (at 461) - a case where there was a complaint that the defendant had been denied natural justice because the magistrate who gave leave to the Commissioner to prosecute him for perjury pursuant to s 341 of the Crimes Act 1900 (NSW) gave him no notice of the application and no opportunity to be heard - that "a decision to institute criminal proceedings does not require the observance of the principles of natural justice" and the grant of leave was a "merely ministerial step".

Conclusion

The relevant passage from Killen v Lane appears to be inconsistent with the Mahoney JA in Maniam (No1) and the contention of the Crown Advocate is supported to some degree by the other judgments to which I have referred. Nevertheless, the judgment of Mahoney JA deals specifically with a provision which reflects, in every relevant sense, that which governed the exercise by the magistrate of his powers in relation to contempt in this case. As a first instance judge, it seems to me, I should for this reason follow the rule stated by Mahoney JA in Maniam (No 1).
There are other difficulties with the approach of the magistrate. Although of course, every allowance must be made for the fact that his Honour decided the matter in the course of a trial and it was necessary that he go on to hear and determine the charges, so it is not appropriate to parse his Honour's language with an eye to detail. Yet making all fair allowance, I am satisfied that his Honour took the view that, once having decided that Ms Dangerfield appeared to have committed a contempt (a conclusion which indeed was inescapable) his Honour regarded it as automatic that he should refer further proceedings to this Court. As I have already mentioned, there were other courses that were open to his Honour, namely, disposing of the matter himself, or neither doing that or referring Ms Dangerfield to this Court. It is not necessary to dilate upon the grounds that might have led him to take the alternative courses. One consideration might have been that Ms Dangerfield had children and lived in the district. For her to have to deal with a matter that would almost certainly be heard in Sydney might fairly be regarded as a hardship which her conduct did not warrant. This would have militated in favour of his Honour deciding to dispose of the matter which he was empowered to do, or a caution and a warning may have been sufficient. After all, she had made an apparently candid statement to the police, and although she attempted to give a different account in her evidence, this did not, in the result, stultify the prosecution of her brother. There may have been other relevant factors which Ms Dangerfield, had she been given time and opportunity and perhaps been assisted by legal representation, could have brought to the magistrate's attention. However, the summary manner in which his Honour disposed of these questions did not allow this to occur.
I do not think for a moment that his Honour was conscious of being anything but fair to Ms Dangerfield. Indeed, it is evident that he had bent over backwards to attempt to obtain her acquiescence in answering questions which she was properly asked and had exhibited a deal of patience with her which went beyond what was strictly necessary. If I may say so, with respect, I think it likely that he did not afford Ms Dangerfield the opportunity to which I have referred because he thought that, once he had decided that she appeared to have committed a contempt, referral was inevitable.
The Crown Advocate has rightly pointed out that, after the matter was referred to this Court, further submissions were made as to whether the proceedings should continue and those submissions were passed by the Prothonotary to the magistrate. I do not have the correspondence itself. As I understand it, these submissions went to the question whether the matter should proceed at all and not to the issue whether the magistrate should himself determine it and therefore did not deal with one of the alternatives open at first instance. At the same time, I think it should be inferred that this issue was not raised on Ms Dangerfield's behalf. Ms Manuell SC for Ms Dangerfield submitted that this did not cure the problem. Had Ms Dangerfield been afforded procedural fairness, she could have obtained advice and, it may be, given evidence about her personal circumstances which might have provided a basis for a different decision being made by the magistrate. This material is not now available. The original decision was a nullity and its reconsideration was not a corrective.
I should refer to one matter for clarity. It will be seen that Pt 55 r 11 requires, in the particular circumstances specified in subrule 3, that "the registrar must commence proceedings for punishment of the contempt" without further direction of the Court. Although that language is used, there can be no doubt that, on referral to the Supreme Court, under s 24(4) of the Local Court Act, it is for this Court to determine whether in fact a contempt has been committed, as well as whether, and if so, what punishment should be applied. The rule does not though, despite the language, mean that the only matter for determination by this Court is the matter for punishment, implicitly because the question of the guilt of the contempt has already been decided.
It follows that the point raised by Ms Dangerfield is made out as to the failure to afford Ms Dangerfield procedural fairness in respect of the referral to this Court.

Further submission

The Crown Advocate's primary submission is that the above conclusion does not invalidate the jurisdiction of this Court to hear and determine the summons. In the alternative, if there is no jurisdiction, the appropriate order is to dismiss the summons and, if it were so minded, make declarations as to the basis for this conclusion. The Advocate observes (rightly) that dismissal of the summons would leave it open to the magistrate to consider whether Ms Dangerfield should be referred to the registrar under the Rules and, to do so, afford Ms Dangerfield an opportunity to be heard.
Ms Manuell submits that the effect of the court's findings is to invalidate the exercise of the magistrate's decision to refer the matter to this Court and, hence, the jurisdiction of the Court to consider the matter. It follows that the summons should be dismissed.

Orders

It seems to me that, as the referral to this Court is void for want of jurisdiction, since there was a failure to afford Ms Dangerfield procedural fairness, the summons should be dismissed. Even if I had a power not to do so (which I doubt), this is a criminal matter and, unless some significant and weighty public interest suggests otherwise, the exercise of the discretion should favour the defendant. It is not a matter, here, of Ms Dangerfield escaping justice, but rather, an insistence on following strictly the relevant legal procedures. Remitting the matter to the Local Court for reconsideration, of course, does not mean that the same magistrate must consider it.
It seems to me that declarations are not necessary or called for.
Accordingly, I make the following orders - 1. Summons dismissed. 2. The matter is remitted to the Local Court for hearing and determination in accordance with this judgment. 3. No order as to costs.

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: 14 December 2015

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (4)

Cited By (1)