Prothonotary of the Supreme Court of New South Wales v Dangerfield

Court of Appeal (NSW)|2016-09-12|Before: Beazley ACJ, Gleeson JA, Payne JA, Commission J

Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70 Oates v Attorney-General (Cth) (1998) 84 FCR 348 Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105 Prothonotary of the Supreme Court of New South Wales v Dangerfield [2015] NSWSC 1895 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 399 Category: Principal judgment Parties: Prothonotary of the Supreme Court of New South Wales (Appellant) Elizabeth Dangerfield (Respondent) Representation: Counsel: D T Kell (Appellant) G Bashir SC/ C O'Neill (Respondent)

Solicitors: Crown Solicitor's Office (Appellant) Aboriginal Legal Service (NSW/ACT) Limited (Respondent) File Number(s): 2015/377022 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 1895 Date of Decision: 14 December 2015 Before: Adams J File Number(s): 2014/361845

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

BEAZLEY ACJ: I have had the advantage of reading in draft the reasons of Gleeson JA. I agree with his Honour's reasons and proposed orders.
GLEESON JA: These proceedings raise a question as to the proper construction of the Local Court's power under s 24(4) of the Local Court Act 2007 (NSW) (Local Court Act) to refer a matter of contempt of court to the Supreme Court for determination. That question arises in connection with the refusal of the respondent, Elizabeth Dangerfield, to answer questions as a prosecution witness during a criminal prosecution of her brother, Mr Dallas Dangerfield, on a domestic violence-related charge of common assault. A magistrate of the Local Court at Lismore (Dakin LCM) was of the view that Ms Dangerfield's conduct "amounted" to contempt of the Local Court and referred "the matter" to the Supreme Court for determination under s 24(4) of the Local Court Act.
In accordance with the rules of the Supreme Court, the Prothonotary as the registrar of the Common Law Division of the Supreme Court, commenced proceedings against Ms Dangerfield for punishment for contempt: Supreme Court Rules 1970 (NSW) (Supreme Court Rules), Pt 55 r 11(3)(c).
The primary judge (Adams J) found that the Local Court is required to afford procedural fairness to a person who appears to the Court to be guilty of contempt of the Court, before a valid referral can be made to the Supreme Court under s 24(4) of the Local Court Act. Since the magistrate did not invite Ms Dangerfield to make submissions before exercising the power of referral, the primary judge held that the referral and subsequent proceedings in the Supreme Court against Ms Dangerfield for punishment for contempt were a nullity. His Honour further found, contrary to the Prothonotary's submissions, that this failure to afford procedural fairness was not cured by matters occurring after the contempt proceedings had been commenced in the Supreme Court: Prothonotary of the Supreme Court of New South Wales v Dangerfield [2015] NSWSC 1895. Accordingly, his Honour made 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.
The Prothonotary seeks to challenge that decision.

Leave to appeal

The summons seeking leave to appeal did not identify which of the subsections of s 101 of the Supreme Court Act 1970 (NSW) (Supreme Court Act) made a requirement of leave necessary. Ultimately, the Prothonotary contended that leave was not required, because an appeal can be brought as of right under s 101(5) of the Supreme Court Act.
Section 101(5) provides that an appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court. The right of appeal provided by s 101(5) is qualified by s 101(6), which provides that subsection (5) does not confer on any person a right to appeal from a judgment or order of the Court in a Division in any proceedings that relate to criminal contempt, being a judgment or order by which the person charged with contempt is found not to have committed contempt. That qualification is not presently relevant.
The Prothonotary submitted that the right of appeal under s 101(5) is not subject to the separate requirement for leave in respect of matters where the matter at issue is less than the threshold amount or value of $100,000: s 101(2)(r) of the Supreme Court Act. In my view that is the preferable construction of s 101(5).
First, s 101(5) provides a right of appeal in any proceedings that relate to contempt which, on its face, is independent of the threshold leave requirement in s 101(2)(r) as to the amount or value in issue. Secondly, the punishment which the Supreme Court can impose for contempt is at large and may include imprisonment: Field v New South Wales Crime Commission [2009] NSWCA 144. The threshold amount or value of $100,000 referred to in s 101(2)(r) cannot have been intended to apply where the matter in issue is punishment for contempt.
If, contrary to that conclusion, leave to appeal is required under s 101(2)(r), then I would favour a grant of leave since these proceedings raise an important question of principle in respect of the conditions attaching to the Local Court when exercising the power under s 24(4) of the Local Court Act.

Statement of the issue and conclusions

The primary question raised by this appeal is whether observance of the principles of natural justice is a condition attached to the statutory power under s 24(4) of the Local Court Act and governs its exercise; with the consequence that the failure to fulfil that condition means that the exercise of that power is inefficacious. For the reasons that follow, this question should be answered in the affirmative. As to the related question of whether Ms Dangerfield was in fact afforded procedural fairness by the Local Court, I have concluded that this question should be answered in the negative.
It follows that the primary judge did not err in dismissing the summons for contempt and remitting the matter to the Local Court for hearing and determination in accordance with his judgment. Accordingly, the appeal to this Court should be dismissed with costs.

Factual background

On 3 January 2014, following a report by Ms Dangerfield to the triple 0 emergency service of an assault at her home at Lismore, police attended her home at about 11.40 am. Ms Dangerfield told the police that her brother, Mr Dallas Dangerfield, had come to her house and punched her in the nose with his fist. She said that her brother had also punched her friend Graham Lawrence when he left her house through the kitchen. Ms Dangerfield told the police that she did not want her brother charged and that she did not want an AVO. Police filmed this conversation with Ms Dangerfield using the video recorder on the iPhone of one of the officers, as their usual recording equipment was not working. Ms Dangerfield also signed a notebook statement of what she had told to the police.
Police interviewed Mr Dallas Dangerfield at about 12.25pm on the same day. He denied the alleged assault. Police charged him with common assault (domestic violence related), contrary to section 61 of the Crimes Act 1900 (NSW).

The Local Court proceedings

The criminal prosecution of Mr Dallas Dangerfield on the common assault charge was heard before Magistrate Dakin in the Local Court at Lismore on 1 July 2014. Evidence was given by the investigating police, Ms Dangerfield and Mr Dallas Dangerfield (the accused). He denied hitting Ms Dangerfield. In giving reasons for dismissing the charge, the magistrate expressed his view that although satisfied on the balance of probabilities that the offence was proved he was not satisfied on the criminal standard of proof of beyond reasonable doubt.

Ms Dangerfield's evidence

As the primary judge observed, Ms Dangerfield had made a statement to police (on 3 January 2014) implicating Mr Dangerfield in the offence charged but, in the course of proceedings sought, in effect, to exculpate him by evidence that was plainly contradictory to what she had said in her statement.
In her oral evidence in chief, Ms Dangerfield explained the injury to her nose as having occurred in the following circumstances: she said that she had been out drinking alcohol. Her brother, Mr Dangerfield, had been looking after her children. When she arrived home, her brother told her that he was taking the children with him because it wasn't the best situation as she had been drinking alcohol and was a bit drunk. Ms Dangerfield said that an argument ensued because she did not want her brother taking her children with him, that her father pushed her brother out the door and that: [w]hen dad pushed him I'm hit into the wall and hit my nose so when the police came I told them that Dallas had hit me and wouldn't give back my kids.
After giving further evidence before the magistrate that she was very intoxicated when she made the telephone call to the triple 0 number, Ms Dangerfield was declared an unfavourable witness pursuant to s 38 of the Evidence Act 1995 (NSW) and was cross-examined by the prosecutor. Ms Dangerfield answered further questions covering three pages of transcript, and then refused to give any further evidence.
The magistrate directed Ms Dangerfield to answer the prosecutor's questions. She refused, saying: "[w]ell too bad, that's it." The magistrate warned Ms Dangerfield that if she did not answer the questions "you may be in contempt of this court". Ms Dangerfield replied: "I don't care, do it, I don't care". The magistrate asked Ms Dangerfield to leave the witness box and repeated his warning that if she did not answer questions in accordance with his directions "I will have you charged with contempt of court". Ms Dangerfield replied "Well I'm not so you may as well do it now."
The magistrate then adjourned the proceedings for a short time to enable Ms Dangerfield to obtain advice from a duty solicitor. Another solicitor, Mr Quigley, was available and spoke to Ms Dangerfield and came into court (it seems together with Ms Dangerfield) when the hearing resumed.
The magistrate indicated to Mr Quigley that Ms Dangerfield had been warned by him that if she refused to answer questions "I'll have the matter referred to the Prothonotary for contempt proceedings". (The magistrate had not previously indicated that he might refer the matter to the Prothonotary). The transcript records the following exchange between Mr Quigley and the magistrate: QUIGLEY: I've explained the situation to her your Honour and she's going to try and do her best to … (not transcribable) now. IN THE PRESENCE OF THE WITNESS HIS HONOUR: All right come back up into the witness box. Thank you for your assistance Mr Quigley. We'll resume the hearing in the matter of Dangerfield.
It seems that Mr Quigley left the court when Ms Dangerfield returned to the witness box. The prosecutor then asked further questions of Ms Dangerfield about the triple 0 calls which suggested that she was not intoxicated at the time of those calls. Ms Dangerfield said she was. It was then put to her, in effect, that she had changed her account to protect her brother. She denied doing so and, in answer to further questions, said she was "not answering your questions any more". (The primary judge observed that there was nothing about the questioning by the prosecutor about the witnesses' triple 0 calls that was objectionable).
The transcript records the following lengthy exchange between the prosecutor and Ms Dangerfield, and also the magistrate. It was common ground in this Court that Mr Quigley was no longer present in Court at the time of these exchanges. PROSECUTOR Q. Answer the question, is that part [of your police statement] true? A. (No verbal reply). Q. Answer the question? A. Didn't I just say I'm not answering it. Q. You told the police that you were punched and you went on to say that 'Dallas walked out of the kitchen and punched my friend Gavin Lawrence'. The question is why did you tell the police that if you just wanted-- A. Stop talking to me, I'm not answering your questions. Q. If you just wanted your child back? A. (No verbal reply). Q. Madam you've been warned? A. I don't care. HIS HONOUR Q. Ma'am why won't you answer the questions? A. Because I don't want to, I've already told youse everything. Q. Ma'am the prosecutor has got a job to do? A. I've already spoken, I don't need to talk any more. Q. Would you mind just listening to me and let me finish please. He's got a job to do, you can't answer questions with a question? A. I'm sorry your Honour but I'm not talking any more. Q. That's all right, no that's all right but if you answer the questions you'll probably find that you'll be able to leave the witness box a lot sooner? A. I'm sorry. Q. So if you listen to the question that's asked and rather than trying to answer it with a question and asking him questions, if you can just answer the question? A. Sorry your Honour. Q. If it gets -- A. But I'm not talking any more. Q. Just stop, just stop, if it gets repetitive I'm sure Mr Crick will object or if it gets to the point where I think it's repetitive I won't allow the questions but at the moment the questions in my view are appropriate, relevant and proper? A. I'm not talking any more, sorry. Q. Why not? A. So you do whatever you've got to do. Q. Why not? A. Because I don't want to. Q. Why not? A. Because I don't like being put under pressure all right. Q. Well not many people do but you can assist me by answering the questions? A. Well I'm not. Q. And it'll probably be over very quickly? A. I'm not talking any more, sorry. Q. Do you want to talk to Mr Quigley again? A. No I don't. Q. Why won't you answer the questions? A. I've already spoken to him. HIS HONOUR: All right. MR CRICK: Your Honour it's just because the questions are getting repeated again. She's got a short fuse that's all. HIS HONOUR: Mr Crick, control your client. Q. Do you want to take some time? A. No. Q. Cool down a bit? A. No, just want to get it over and done with. I'm not answering any more questions sorry. Q. All right you are in contempt of this court. Did Mr Quigley explain to you what -- A. Yes he explained everything. Q. And you understand that you may be liable to punishment? A. Yes, yes I understand. HIS HONOUR: Put another question to the witness please Mr Prosecutor. PROSECUTOR Q. The question is you told the police that you were punched in the nose, you went on to say that a Mr Gavin Lawrence was also punched by Dallas. Why did you include that comment that Mr Lawrence was punched in the nose if you only wanted your children back? A. (No verbal reply). Q. Can you answer that question? A. No. [Emphasis added].
Notwithstanding that the magistrate seems to have formed the view that Ms Dangerfield was in contempt of court, the magistrate directed the prosecutor to continue cross-examination. The transcript records what happened next: HIS HONOUR: Ask another question. WITNESS: Stop asking me questions. I told you I'm not talking no more. PROSECUTOR Q. You told the Court that the only reason you told the police that Dallas had hit you in the nose was for them to get your children back or your child back. It doesn't make sense that you've also said that a Mr Gavin Lawrence was also punched. What relevance is Gavin Lawrence being punched in regards to getting your child back. Can you answer that? A. (No verbal reply). HIS HONOUR Q. Do you intend to answer any questions? A. Nah. HIS HONOUR: You've been warned. I will refer the matter now to the Prothonotary of the Supreme Court. HIS HONOUR: Mr Prosecutor, do you wish to say anything before I make any order? PROSECUTOR: No your Honour, I think the question is quite proper, it's towards the reasoning why Ms Elizabeth Dangerfield has made allegedly a faults complaint to the police and yet she has some difficulty in answering the question. I can't take it any further than that. [Emphasis added].
The magistrate then gave short reasons why he had formed the view that Ms Dangerfield's conduct "amounted to" contempt of court and for referring the matter to the Supreme Court under s 24(4) of the Local Court Act. HIS HONOUR: I direct a transcript of the proceedings, including and up to the point that Ms Dangerfield was asked to leave the witness box to be taken out today 1 July 2014 in proceedings between police and Dallas Dangerfield in the Local Court at Lismore. Elizabeth Dangerfield refused to answer questions put to her by the police prosecutor in evidence-in-chief, as indicated in the attached the transcript. Ms Dangerfield was given the opportunity to consider her position and take legal advice. She returned to the witness box. She again answered some of the questions put to her by the police prosecutor again after leave was granted to the prosecutor to put question to her as an unfavourable witness and again she refused directly to answer those questions. I form the view that the conduct amounted to a contempt of court pursuant to section 24(4) of the Local Court Act. I refer this matter to the Supreme Court for determination in accordance with pt 55 r 11(3) of the Supreme Court Rules. All right, next witness. [Emphasis added].

Events after referral of the matter to the Supreme Court

On 9 December 2014, the Prothonotary commenced proceedings against Ms Dangerfield in the Supreme Court for contempt by way of summons, statement of charge and particulars.
On 9 April 2015, the Aboriginal Legal Service sent a letter of representations on behalf of Ms Dangerfield to the Crown Solicitor. Subsequently, on 4 May 2015, Magistrate Dakin, having received those representations with the consent of Ms Dangerfield, advised the Prothonotary that he remained of the view that the contempt proceedings brought against Ms Dangerfield should proceed.
The content of that correspondence was not in evidence before the primary judge or in this Court. The primary judge observed (at [14]) that he understood the representations on behalf of Ms Dangerfield went to the question of whether the matter should proceed at all and not to the issue of whether the magistrate should himself determine it and therefore deal with one of the alternatives open at first instance. The Prothonotary did not challenge this finding.

The relevant legislation

The power of the Local Court to deal with contempt is found in s 24 of the Local Court Act. The main power in s 24(1) gives the Local Court the same powers as those of the District Court. In addition, further provision to deal with contempt by referring the matter to the Supreme Court for determination is made in s 24(4). The relevant provisions of the Local Court Act and the District Court Act 1973 (NSW) (District Court Act) are as follows:

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) Without limiting subsection (1), the Court may vacate or revoke an order with respect to contempt of court. (3) For the purposes of this section: (a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Local Court and a Magistrate in the same way as they apply to the District Court and a Judge of the District Court, and (b) a reference in section 200 of that Act to a proclaimed place is taken to be a reference to a designated place, and (c) section 201 of that Act applies to a ruling, order, direction or decision of the Local Court under those provisions as so applied. (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.

The powers and procedure in the Supreme Court for dealing with contempt, in particular, where a matter has been referred to it by either the Local Court or the District Court are found in Pt 55 of the Supreme Court Rules (SCR). Relevantly, Pt 55 r 11 provides as follows: 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, (b) [repealed], (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.
It was common ground that the reference in Pt 55 r 11(3)(c) to s 27B of the Local Courts Act 1982 (NSW) should be read as a reference to s 24(4) of the Local Court Act because s 27B of the 1982 Act was repealed by s 5 of the Local Court Act 2007 (NSW), which enacted among others, s 24(4). Section 68(3) of the Acts Interpretation Act 1987 (NSW) provides, in effect, that a reference in any Act that has been repealed and re-enacted, with or without modification, extends to the re-enacted Act as in force for the time being.

The primary judge's reasons

The primary judge found (at [4]) that: [4] 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 primary judge accepted (at [5]) that the nature of the function to be exercised by a magistrate, when considering which of the three courses he had referred to should be adopted, is undoubtedly ministerial, referring to Killen v Lane (1983) 1 NSWLR 171 (Killen v Lane) at 179 (Moffitt P, Hutley and Samuels JJA agreeing). His Honour noted the different views of the correct procedure, namely whether natural justice required the alleged contemnors to be heard on the question of whether contempt proceedings should be commenced against them, expressed in Killen v Lane and Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 (Maniam (No 1)) at 470 (Mahoney JA), and 480 (Hope AJA).
After referring to the parties' competing submissions, the primary judge expressed his conclusion as follows: [11] The relevant passage from Killen v Lane appears to be inconsistent with the Mahoney JA in Maniam (No 1) 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). [12] 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. [13] 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.
His Honour rejected the Prothonotary's alternative submission that the Local Court had afforded procedural fairness to Ms Dangerfield by reason of the events occurring after the referral was made, giving the following reasons: [14] 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.

Grounds of appeal

The Prothonotary relied on two grounds of appeal which contended that the primary judge: 1. erred in law in finding that there is a requirement in every case for a magistrate or judge to seek submissions from a contemnor before referring an allegation of contempt to the Supreme Court to be dealt with under the SCR Pt 55; 2. in the alternative, erred in finding that procedural fairness had not been afforded to Ms Dangerfield in all the circumstances.

(a) Prothonotary's submissions

The Prothonotary's primary submission was that the exercise of the power of referral under s 24(4) of the Local Court Act is ministerial in nature, not judicial, and, accordingly, the Local Court was not required to observe the principles of natural justice before exercising the referral power under s 24(4). This construction of the power in s 24(4) was said to be supported by a number of matters.
The first was that the referral of a matter to the Supreme Court for determination under s 24(4) of the Local Court Act was to be treated as a decision to commence criminal proceedings and, accordingly, did not require the observance of the principles of natural justice. Reference was made to Commissioner of Police v Reid (1989) 16 NSWLR 453 at 461D (Meagher JA, Clarke JA agreeing); Oates v Attorney-General (Cth) (1998) 84 FCR 348 at 354 - 355 (reversed on other grounds in Attorney-General (Cth) v Oates (1999) 198 CLR 162; and Australian Securities and Investments Commission v Plymin (No 3) (2002) 170 FLR 128; [2002] VSC 358 at [24] - [26].
Secondly and related to the first matter, the power of referral under s 24(4) was said to be analogous to the power of the Supreme Court under SCR Pt 55 r 11(1), and, accordingly, the present case is governed by the approach that the Prothonotary attributed to Moffitt P in Killen v Lane, that "[i]t has been well recognised that a decision to commence criminal proceedings does not require the observance of principles of natural justice." Further, it was submitted that Maniam (No 1) is authority only for the proposition that a judicial officer may provide an opportunity for an alleged contemnor to be heard before a contempt referral is made, not that a failure to provide such an opportunity invalidates the referral.
Thirdly, reliance was placed on the expressio unius maxim. It was submitted that s 24 contained provisions relating to similar matters in different terms. In particular, that the power of referral of the matter to the Supreme Court under s 24(4) did not provide for a hearing whereas the power of the Local Court to deal with contempt of the court summarily under s 24(1) and (3) expressly provided for the nature of the hearing before the Local Court. This was relied on as reflecting the legislature's intention that the Local Court should deal differently with summary and referral matters.
Finally, the Prothonotary sought to draw an analogy with disciplinary cases, where it has been held that there is no duty upon a disciplinary board to afford procedural fairness in making a referral for the commencement of disciplinary charges. Reference was made to Medical Board of Queensland v Byrne (1958) 100 CLR 582; [1958] HCA 40 at 591 (McTiernan J); and Cornall v AB [1995] 1 VR 372 at 396 - 397; 400 - 401. The Prothonotary submitted that these cases reflected a general principle that procedural fairness will be afforded if "the decision-making process, viewed in its entirety, entails procedural fairness": South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 39 at 389 (Mason CJ, Wilson and Toohey, Brennan and Deane and Toohey JJ agreeing in separate judgments).

(b) Ms Dangerfield's submissions

Counsel for Ms Dangerfield submitted that where the Local Court exercises the referral power in s 24(4) of the Local Court Act, the Local Court does not charge a person who is alleged or who appears to the court itself to be guilty of contempt of court but rather, refers the matter (being the question whether the party appeared to be guilty of contempt) to the Supreme Court where the charge of contempt is made by the Prothonotary upon commencing proceedings.
Counsel emphasised the distinction between the ruling or direction of the Local Court to refer a matter to the Supreme Court for determination under s 24(4) (referring to Johnston v Nationwide News Pty Ltd (2005) 62 NSWLR 309; [2005] NSWCA 17 (Johnston v Nationwide News) at [11], [29] - [31] (Ipp JA and Spigelman CJ, Beazley JA agreeing)), and the commencement of criminal proceedings for punishment of the contempt in the Supreme Court by way of summons under SCR Pt 55 r 11(3)(c), and the statement of charge and particulars under Pt 55 r 7.
Counsel accepted that there was no obligation to afford procedural fairness in respect of the decision to commence criminal proceedings; the submission advanced for Ms Dangerfield is that the obligation to afford procedural fairness attached to the anterior exercise of the power of the referral by the Local Court under s 24(4) of the Local Court Act.
Counsel submitted the obligation to afford procedural fairness is not excluded simply because a court's decision (or, more accurately, direction or ruling) is "ministerial" or executive, rather than judicial in nature. Reference was made to the line of authorities in the High Court commencing with Kioa v West (1985) 159 CLR 550; [1985] HCA 81 (Kioa v West) to the effect that the implication of the principles of natural justice in a statute is governed by a process of construction: see also Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 (Saeed v Minister for Immigration and Citizenship).
Counsel submitted that the power exercised by the magistrate under s 24(4) of the Local Court Act directly impacted on Ms Dangerfield's interests. First, the extent of the jeopardy in which Ms Dangerfield was to be placed was significantly greater because of the disparity between the maximum penalties available for punishment of contempt by the Local Court - a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 28 days - and by the Supreme Court, which has no statutory maximum penalty. Secondly, at a pragmatic level, the decision to refer the matter to the Supreme Court impacted on the interests of Ms Dangerfield who was an Indigenous woman living in Queensland with her children, would be greatly inconvenienced by requiring her to attend the Supreme Court in Sydney to answer any charge of contempt of the Local Court.
Counsel for Ms Dangerfield distinguished Killen v Lane from the present case because it did not concern the exercise of the referral power under s 24(4) of the Local Court Act, or s 203 of the District Court Act. Counsel submitted that the observations of Mahoney JA and Hope AJA in Maniam (No 1) supported the conclusion of the primary judge because Maniam (No 1), relevantly, concerned the question of the exercise of the power of inferior courts to refer an allegation of contempt to a court of superior jurisdiction.

(a) The implication of the principles of natural justice is a matter of statutory construction

Whether observance of the principles of natural justice is a condition attached to the statutory power of referral in s 24(4) of the Local Court Act and regulates its exercise is a question of statutory construction. The starting point is a consideration of the nature of the power, and whether the exercise of that power has the potential to destroy, defeat or prejudice a person's rights or interests. If so, it is necessary to consider whether the operation of the rules of natural justice is excluded by "plain words of necessary intendment": Annetts v McCann (598).
These propositions are derived from the principles summarised in Saeed v Minister for Immigration and Citizenship at [11] - [15]. It is convenient to set out in full the following extract from the joint judgment of the High Court: [11] In Annetts v McCann it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power. Brennan J in Kioa v West explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said: "[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that 'the justice of the common law will supply the omission of the legislature'. The true intention of the legislation is thus ascertained." [12] The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann. [13] Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West. A failure to fulfil that condition means that the exercise of the power is inefficacious. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid. [14] In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by "plain words of necessary intendment". Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from "indirect references, uncertain inferences or equivocal considerations." Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles. [Citations omitted]

(b) Application of principles to the facts

Applying these principles to the present case, the following observations should be made concerning the power of the Local Court to deal with contempt.
First, s 24 of the Local Court Act provides for two forms of procedure for dealing with circumstances 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. In addition to the power in s 24(1) of the Local Court Act, read together with s 24(3), to deal with a contempt of court summarily by the procedure provided by s 199(3) of the District Court Act, further provision to deal with contempt is made by s 24(4) of the Local Court Act for the matter to be referred to the Supreme Court for determination.
Secondly, the exercise of the power of referral of a matter to the Supreme Court requires the Local Court to make two decisions. First, to decide whether it appears to the court on its own view that the person is guilty of contempt of court, and secondly, whether the court should refer the matter to the Supreme Court for determination: see Maniam (No 1) at 480C, in relation to the equivalent power of referral in s 203 of the District Court Act.
That the observance of the principles of natural justice may be a condition of the exercise of the referral power in s 24(4) is not inconsistent with the cases which establish that there is no obligation to afford procedural fairness in respect of the decision to commence criminal proceedings. This is because, as Ms Dangerfield correctly submitted, the exercise of the referral power involves no more than a ruling or direction to refer the matter to the Supreme Court: Johnston v Nationwide News Pty Ltd at [11]; the Local Court does not charge a person with contempt, this is done by the Prothonotary upon commencing proceedings in the Supreme Court: see the requirement in SCR Pt 55 r 7 that a statement of charge specifying the contempt of which the contemnor is alleged to be guilty shall be subscribed to or filed with the notice of motion or summons commencing the contempt proceedings.
Accordingly, whilst proceedings for contempt are criminal proceedings, contrary to the Prothonotary's submissions, there is no proper analogy between the exercise of the referral power by the Local Court under s 24(4) and a decision by the Crown or other prosecution authority to commence criminal proceedings.
Thirdly, and importantly, the maximum punishment for contempt that can be imposed by the District Court (and consequently also the Local Court) is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 28 days: s 24(1) Local Court Act and s 199(7) District Court Act. By contrast, as already mentioned, where a matter is referred to the Supreme Court for determination under s 24(4) of the Local Court Act, the punishment for contempt is at large.
Fourthly, in considering the elements relevant to the process of construction which is determinative of whether to imply the rules of natural justice, Brennan J emphasised, in Kioa v West, the nature of the power being exercised and the interest which the exercise of that power is apt to affect (612, 618). It is incontrovertible that, in consequence of the disparity between the maximum punishment for contempt that may be imposed by the Local Court and the unlimited punishment which may be imposed by the Supreme Court, the exercise of the power of referral under s 24(4) of the Local Court Act can prejudice a person's interests by exposing them to the jeopardy of significantly greater punishment in the Supreme Court, than if the charge of contempt had been dealt with in the Local Court.
Counsel for the Prothonotary sought to avoid this conclusion by submitting that Ms Dangerfield in fact became exposed to the maximum penalty that may be imposed by the Supreme Court by her acts or omissions which constituted the alleged contempt. The jeopardy she faced was said to be the same before and after the referral under s 24(4), and, this argument continued, the jeopardy would not crystallise until she was sentenced. The premise of this argument is unsound: Ms Dangerfield was only exposed to the (unconstrained) maximum penalty that may be imposed by the Supreme Court for contempt upon the exercise of the power of referral by the Local Court.
Fifthly, the absence of provision for the nature of any hearing in respect of the power of referral under s 24(4) alongside provision for such in respect of the summary procedure in s 24(1) (through its incorporation of the District Court's procedure, set out in s 199(3) of the District Court Act), does not attract the expressio unius maxim. As explained by the High Court in Saeed v Minister for Immigration and Citizenship (at [11] -[12]), where the exercise of the power such as under s 24(4) of the Local Court Act is apt to affect the interests of the proposed contemnor, the implication of the principles of natural justice is a matter of statutory construction. Notwithstanding the absence of any provision for the hearing rule in s 24(4), the legislative scheme contains no plain indication that the principles of natural justice are excluded and the power in s 24(4) is therefore to be construed as subject to the common law rules of natural justice. See, in relation to the implication of the principles of natural justice in a different statutory scheme, Baba v Parole Board of NSW (1986) 5 NSWLR 338 at 349D (McHugh JA).
Further, it is no answer for the Prothonotary to rely upon the character of the power of referral under s 24(4) as "ministerial" rather than judicial in nature, and contend therefore that the exercise of the referral power does not attract the obligation to observe the principles of natural justice. This characterisation ignores what is presently at issue: the nature of the power and the consequences that its potential prejudice to the rights or interests of the proposed contemnor have for its exercise. So much is established in Kioa v West. See also Murray v Legal Services Commissioner (1999) 46 NSWLR 224; [1999] NSWCA 70 (Murray) at [75] and [81].
Sixthly, Killen v Lane is distinguishable from Maniam (No 1) and the present case for two reasons. One is that the nature of the power exercised by the Supreme Court in Killen v Lane - to commence proceedings for contempt under SCR Pt 55 r 11(1) - is clearly different to the power of an inferior court to refer a matter to the Supreme Court for determination. The other is that SCR Pt 55 provided the means by which procedural fairness is to be afforded to the contemnor. In particular, SCR Pt 55 Division 2 requires: a statement of charge specifying the contempt of which the contemnor is alleged to guilty shall be subscribed to or filed with the notice of motion or summons (Pt 55 r 7); unless the Court otherwise orders, the evidence in support of the charge shall be by affidavit (Pt 55 r 8); that the notice of motion or summons, the statement of charge and the affidavits should be served personally on the alleged contemnor (Pt 55 r 9); and the alleged contemnor is to be brought before the Court and informed orally of the contempt with which he or she is charged, be required to make his or her defence to the charge, and after hearing him or her the Court determine the matter of the charge and make an order for the punishment or discharge of the contemnor (Pt 55 r 3).
At the point at which the Supreme Court exercises the power under SCR Pt 55 r 11(1) to commence or direct the commencement of proceedings for contempt, the express requirements in Div 2 of SCR Pt 55 for the giving of notice of the statement of charge, particulars and supporting affidavits, together with the requirement for a hearing, exclude the implication of common law principles.

Killen v Lane

Killen v Lane involved a costs order made by the trial judge in relation to a direction under Pt 55 r 11(1) of the Supreme Court Rules that the Registrar of the Equity Division commence proceedings for criminal contempt in the Court of Appeal against the respondents. It had been alleged by a party in the proceedings that the respondents had obstructed the course of justice by the destruction and suppression of evidence, in particular two documents, and in seeking to dissuade a bank from producing to the Court copies of the documents.
Moffitt P said (at 177) (Hutley and Samuels JJA agreeing) that the commencement of proceedings for contempt is entirely a matter for the Court under Pt 55 r 11 "as a ministerial decision taken of its own motion". Accordingly, a costs order should not have been made against the party who had raised the allegation of contempt. Moffitt P explained (at 177 - 178): The judge may decide to do nothing. This may be because the matter is too trivial, because the material put before him is unsatisfactory or because he considers it more appropriate that the Attorney-General initiate proceedings, if he wishes. He may decline to intervene for some other reason. He may consider the situation is best dealt with by a warning. On my understanding as to how the power has been exercised, he has never been regarded as bound to give reasons for commencing proceedings or not doing so, any more than where the relevant conduct is witnessed by him. It would be quite contrary to practice and to the function of the juror, witness, court officer or other person in making the allegation, to regard him as a presumed or potential applicant who becomes or may become a party to some proceeding in which he may be liable for costs, if in the end the contempt is not sustained. It would be contrary to practice to permit him to be an applicant seeking the exercise of judicial power. The person performs a public duty by bringing the possible crime to the attention of the appropriate authority, so that no responsibility for costs can rest on him unless some case of malicious abuse of process can be made against him. The present is not such a case.
Moffitt P continued (at 179) in a passage relied upon by the Prothonotary: 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.
The relevant rule under consideration in Killen v Lane, SCR, Pt 55 r 11(1), was in similar terms to s 24(1) of the Local Court Act, which confers summary jurisdiction on the Local Court to deal with contempt. Moffitt P reasoned that natural justice was not required to be observed on the question of whether proceedings should be commenced against the proposed contemnors because the rules themselves provided 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. There, his Honour may be taken to have been referring to the procedural requirements for contempt proceedings in SCR Pt 55, referred to above.
Insofar as Moffitt P relied upon an analogy between the scheme in SCR Pt 55 and the legislative context considered in Dennis v Law Society of NSW (Court of Appeal, 17 December 1979, unreported) (Dennis), no similar analogy can be drawn between the power under s 24(4) of the Local Court Act and the statutory scheme considered in Dennis (being for disciplinary proceedings against solicitors under ss 71 and 72 of the Legal Practitioners Act 1898 (NSW)). In Murray, the Court distinguished Dennis because it was concerned with a different statutory scheme - in that case, for disciplinary proceedings against legal practitioners under s 155 of the Legal Profession Act 1987 (NSW) - and held that the nature of the power exercised and whether it is apt to affect the interests of another is paramount in determining whether the principles of natural justice attach as a condition of the exercise of the power. In addition, as Sheller JA observed at [75], the reasoning in Dennis was not applicable because the focus of the Court in Dennis was on the character of the proceedings rather than the nature of the power, relevantly, to cancel a practising certificate. For the reasons already explained, it is the nature of the Local Court's power under s 24(4) and whether its exercise is apt to affect the interests of the proposed contemnor which is determinative, not the power's characterisation as 'ministerial'.
One further matter should be mentioned. The Prothonotary's reliance upon Killen v Lane is not assisted by his reference to Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105 (Potier). The issue before Handley AJA in Potier was whether Mr Potier had a right of appeal against the refusal of a judicial member of the Administrative Decisions Tribunal to exercise certain powers. Handley AJA dismissed the application on the basis that the refusal of the judicial member to exercise the powers was not an "appealable decision" and s 112 of the Administrative Decisions Tribunal Act 1997 (NSW) limited the right of appeal to appealable decisions (at [16]). Handley AJA also considered that the relevant decisions of the judicial member were ministerial, not judicial, referring to Killen v Lane and the statements of Moffitt P at 177 and 179.
Nothing said by Handley AJA in Potier was directed to the question of observance of the principles of natural justice in relation to the exercise of the powers in question in that case, let alone the circumstances relating to the exercise of the referral power under s 24(4) of the Local Court Act.
Having addressed Killen v Lane, it is desirable to say something briefly about Maniam (No 1).

Maniam (No 1)

Maniam (No 1) involved a refusal by a subpoenaed party to attend the District Court in answer to a subpoena. Dr Maniam was arrested on a bench warrant and brought before the District Court. The trial judge informed Dr Maniam that he was formally ordered to "show cause" why he should not be charged with contempt of court, the trial judge indicating that he proposed to refer him to the Supreme Court to be dealt with for contempt unless he was persuaded to refrain from doing so. One question which arose was whether Dr Maniam's responses to this "show cause" direction were admissible against him in the subsequent Supreme Court contempt proceedings. The majority of this Court (Mahoney JA and Hope AJA) held that the show cause direction was lawful, and that Dr Maniam's answers were admissible against him.
Importantly for present purposes, the trial judge had exercised the referral power under s 203 of the District Court Act. Mahoney JA observed (at 469): In the present case, the District Court judge exercised the powers given to him by s 203. In a case such as the present, for that power to be exercised, it must first be alleged or appear to the court that a person is guilty of contempt of court; then the judge must ordinarily afford to the person in question the opportunity of showing why, in exercise of s 203, the judge should not refer the matter to the Supreme Court for determination.
Mahoney JA expressed the view that it was proper for the trial judge to first satisfy himself as to the appearance of contempt before considering whether he would exercise the power to refer to the matter to the Supreme Court and continued (at 470): 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.
Mahoney JA accepted that it was arguable that a formal charge was not warranted or authorised because that which s 203 authorises to be referred to the Supreme Court is "the matter". His Honour found it unnecessary to express a concluded view on this question, as any irregularity in the judge formally charging the doctor did not affect the validity or propriety of the contempt proceedings brought in the Supreme Court.
Hope AJA agreed that the doctor's evidence was correctly admitted (at 480). Hope AJA concluded (at 480): 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.
Counsel for the Prothonotary submitted that the observations of Mahoney JA and Hope AJA concerning natural justice in relation to the referral power under s 203 of the District Court Act were no more than statements of desirable practice, rather than affirmation of the obligation attaching to the exercise of the referral power. That submission misses the point that was in issue in Maniam (No 1).
In Maniam (No 1) the Court was dealing with asserted procedural irregularities relating to the exercise of the referral power under s 203 and, relevantly, the admissibility of statements made by Dr Maniam to the trial judge in circumstances where Dr Maniam had been afforded procedural fairness before the District Court exercised the referral power. It was not in issue whether procedural fairness must be afforded to the proposed contemnor before the power of referral was exercised. The decision is not determinative of the present case. Nevertheless nothing in Maniam (No 1) is inconsistent with the argument advanced by Ms Dangerfield.

Conclusion

The primary judge did not err in concluding that the Local Court must afford procedural fairness to Ms Dangerfield, as the proposed contemnor, before exercising the power of referral under s 24(4) of the Local Court Act.
It is only necessary to add, as Brennan J observed in Kioa v West (at 626), that once "it is established that the exercise of a power is conditioned on the observance of the principles of natural justice, the content of the principles to be observed is determined in the light of the particular circumstances." In a case such as the present, procedural fairness required that the magistrate inform Ms Dangerfield, as the proposed contemnor, about the two options available to his Honour, either to exercise the summary jurisdiction of the Local Court to deal with the matter of contempt or refer the matter to the Supreme Court, and invite submissions on which of those courses should have been taken. For the opportunity of making submissions to be meaningful in the circumstances of this case, involving an indigenous woman with no legal background, a reasonable and fair procedure would also involve the opportunity to obtain legal advice.

(a) Prothonotary's submissions

In the alternative to ground 1, the Prothonotary submitted that if there is an obligation to afford procedural fairness to Ms Dangerfield before exercising the power of referral under s 24(4) of the Local Court Act, that obligation was satisfied in two ways which were relied upon separately and cumulatively by the Prothonotary.
First, it was submitted that the procedure adopted by the magistrate was appropriate to the circumstances of the particular case. Secondly, it was submitted that any obligation to afford procedural fairness was met in view of the correspondence following the referral by the magistrate (set out at [26] - [28] above).
The Prothonotary referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (Lam) at [36] - [37], and submitted that no unfairness has resulted in the process adopted by the magistrate because both during the hearing before the magistrate and following the contempt referral, Ms Dangerfield was provided with ample opportunity to be heard on the question of whether the contempt prosecution should proceed.

(b) Ms Dangerfield's submissions

Counsel for Ms Dangerfield submitted that a distinction is to be drawn between the magistrate giving Ms Dangerfield, as witness in the assault trial, a number of opportunities to comply with the questioning process, and the failure to afford her the opportunity to be heard on the question of why the magistrate, in the exercise of his discretion, should not refer the matter of contempt to the Supreme Court.
Counsel submitted that the process before the magistrate was irregular for two main reasons, the first being that the first warning given to Ms Dangerfield by the magistrate, in terms of charging her with contempt if she did not answer questions, was akin to the exercise of the summary power found in s 199(3)(a) of the District Court Act, not the referral power under s 24(4) of the Local Court Act. Second, the first warning of the possibility of the matter being referred to the Prothonotary for contempt proceedings was when she returned to court with Mr Quigley after speaking to him during the short adjournment. Despite the terms of the second warning, the magistrate had not in fact previously advised Ms Dangerfield of this possibility, rather he had warned her that he would have her charged.
Counsel emphasised that after the magistrate formed the opinion that Ms Dangerfield was guilty of contempt (which counsel for Ms Dangerfield accepts satisfies the requirement of an appearance of contempt in s 24(4)) he did not give her an opportunity to be heard on the question whether the matter should be dealt with by the magistrate himself under s 24(1), or referred to the Prothonotary pursuant to s 24(4) of the Local Court Act. It was submitted that it was on this critical question that Ms Dangerfield was not afforded procedural fairness. This omission was argued to have caused Ms Dangerfield unfairness because the magistrate seemed to be of the view that once he decided that Ms Dangerfield had committed a contempt of court, it was automatic that he should refer the matter to the Supreme Court, and she therefore lost the opportunity to have it dealt with in the Local Court, let alone to make submissions seeking that course.

(a) The process before the Local Court

It can be accepted that the magistrate was confronted with a difficult task in controlling the trial; a witness refused to answer questions during a criminal prosecution of her brother. The magistrate had directed Ms Dangerfield to answer questions and warned her that he would have her "charged" with contempt of court if she did not answer questions as directed. The magistrate adjourned the proceedings for a short time with a view to Ms Dangerfield obtaining legal advice from a duty solicitor. Another solicitor, Mr Quigley, spoke with Ms Dangerfield, it seems at the request of the prosecutor. The terms of any advice given by Mr Quigley to Ms Dangerfield are unknown. The Prothonotary submitted that it should be inferred that Mr Quigley would have advised Ms Dangerfield that the magistrate could refer the matter to the Supreme Court for contempt proceedings. I am not be prepared to draw such an inference in circumstances where, up to that point, the magistrate had only referred to the possibility of having Ms Dangerfield "charged" with contempt (being consistent with the matter of contempt of court being dealt with by the Local Court in the exercise of its summary jurisdiction), and Mr Quigley had spoken to Ms Dangerfield at the request of the prosecutor.
Thereafter, when Ms Dangerfield returned to court with Mr Quigley, the magistrate seems to have assumed, without an apparent basis for doing so, that Mr Quigley had advised Ms Dangerfield of the possibility of him referring the matter of contempt to the Supreme Court, because the magistrate immediately referred to the possibility of referring the matter to the Prothonotary, as if he had already mentioned that possibility in the presence of Ms Dangerfield and the prosecutor (who told the magistrate that he had discussed the matter with Mr Quigley, when asking him to speak with Ms Dangerfield).
While I do not accept the characterisation of the process before the magistrate as "irregular", as submitted by counsel for Ms Dangerfield, it was unfortunate that the magistrate first referred to the possibility of "charging" Ms Dangerfield and later referred to the possibility of referral to the Prothonotary without distinguishing between these different courses of action. That distinction was not, on the evidence, explained to Ms Dangerfield, including the need, in the latter event, for her to attend the Supreme Court in Sydney to answer the Prothonotary's charge, nor did the magistrate invite her to make submissions as to whether he should adopt either course.
The Prothonotary's submission that the process adopted by the magistrate has not caused unfairness must be rejected. First, as counsel for Ms Dangerfield correctly submitted, the consequences to Ms Dangerfield of a referral of the matter to the Supreme Court were significant. The referral would expose her to prosecution for contempt in a jurisdiction with an unlimited maximum penalty. It would also cause significant hardship by requiring her to travel to Sydney in circumstances where she was of limited means and had to care for her children in Queensland. Secondly, as already indicated, Ms Dangerfield was not informed of the two options available to the magistrate to deal with contempt, or invited to make submissions as to which course the magistrate should adopt. Thirdly, although Ms Dangerfield was given the opportunity to speak to a duty solicitor, and in fact spoke with another solicitor, Mr Quigley, at the instigation of the prosecutor, on the evidence, that consultation occurred in circumstances where the magistrate had not informed Mr Quigley prior to his speaking with Ms Dangerfield of the two options for dealing with the matter which his Honour had available to him, nor that his Honour was considering referring the matter to the Supreme Court. In the circumstances, Ms Dangerfield was denied a reasonable and fair procedure with respect to the exercise of the referral power under s 24(4) of the Local Court Act.

(b) Subsequent events

The failure of the Local Court to afford procedural fairness to Ms Dangerfield before exercising the referral power under s 24(1) was not cured by any subsequent events. As stated above, the primary judge found that the representations made on behalf of Ms Dangerfield to the Prothonotary, which were forwarded to the magistrate, went to the issue of whether the Supreme Court proceedings for contempt should proceed at all, not whether the magistrate should have dealt with the matter summarily under s 24(1) or referred the matter to the Supreme Court under s 24(4). That inference was open on the evidence which indicated that the representations were forwarded to the magistrate "for consideration as to whether to withdraw the contempt charge".
It has been said that underlying the principles of natural justice is the concern of the law to avoid practical injustice: Lam at [37] (Gleeson CJ). It is not in dispute in the present case that alternative courses were open to the magistrate and the primary judge correctly identified considerations that would have militated in favour of the magistrate summarily disposing of the matter, or giving a caution and a warning, which his Honour found may have been sufficient. That Ms Dangerfield suffered a practical injustice before the Local Court should be accepted.
There was no error in the primary judge's finding that the events which occurred after the direction referring the matter to the Supreme Court did not cure the failure to afford procedural fairness before the referral power was exercised by the magistrate on 1 July 2014.

Conclusion and orders

The appeal has failed. There is no reason why costs should not follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.
I propose the following orders: 1. Direct the appellant to file a notice of appeal in the form contained in the White Book within 7 days. 2. Appeal dismissed. 3. Appellant to pay the respondent's costs in this Court.
PAYNE JA: I agree with the reasons of Gleeson JA and wish only to add a few additional observations about ground 2 of the appeal.
In the present case, procedural fairness required Ms Dangerfield to be informed about the two options available to his Honour, either to exercise the summary jurisdiction of the Local Court or refer the matter to the Supreme Court, and invite submissions on which of those courses should have been taken.
In SZBEL v Minister for Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 the High Court cited with approval the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 that: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
The "relevant issues" in the present case were whether the matter should be dealt with by the magistrate himself under s 24(1), or referred to the Prothonotary pursuant to s 24(4) of the Local Court Act.
In the present case, as Gleeson JA points out, procedural fairness also required Ms Dangerfield to be given the opportunity to obtain advice about the relevant issues prior to making those submissions. As Gummow J said in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 119: …as to alleged lack of procedural fairness. Gibbs C.J. pointed out in National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 316, that the application of the rules of natural justice may vary from case to case even though the same power is being exercised; see also Kioa v West, supra at 633 per Deane J., and Australian Broadcasting Tribunal v Bond, supra at 366-367 per Deane J. The availability to a party of legal advice may be of considerable significance: Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 179 per Toohey J. The decision maker has to adopt what in the circumstances of the case is a reasonable and fair procedure, having regard to the matters the decision maker is bound to take into account, and also to those matters adverse to the interests of the person in question which he proposes to take into account: Kioa v West, supra at 627-629 per Brennan J., Allars, "Introduction To Australian Administrative Law", 1990, s. 6.66-6.70. [Emphasis added]
I agree with the orders proposed by Gleeson JA.

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: 11 October 2016

Acts Interpretation Act 1987(NSW)s 68(3)

Administrative Decisions Tribunal Act 1997(NSW)s 112

Legal Practitioners Act 1898(NSW)ss 71, 72

Legal Profession Act 1987(NSW)s 155

Local Courts Act 1982(NSW)s 27B

District Court Act 1973(NSW)ss 199, 203

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