Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan

The Dangerfield judgment

1. In Dangerfield a witness had refused to answer particular questions, while giving evidence in a criminal trial. The hearing was adjourned to permit the witness to obtain advice from a solicitor. After receiving that advice the hearing resumed. The Magistrate told the solicitor that the witness had been warned that if she refused to answer questions "I'll have the matter referred to the Prothonotary for contempt proceedings" (at [21]). The solicitor advised that he had "explained the situation to her … and she's going to try and do her best …" (at [21]).
2. The hearing then proceeded. At a later point the witness again refused to answer further questions. She was offered the opportunity to speak to the solicitor again, which she refused. The Magistrate then told her that she was in contempt of Court. His Honour attempted to ask the witness if the solicitor "had explained to her", but he was cut off when the witness said that "yes he explained everything". The Magistrate then advised her that she was liable to punishment and directed that the prosecutor put another question to her, which she also refused to answer. The witness refused to alter her stance.
3. The Magistrate then said "[y]ou've been warned. I will refer the matter now to the Prothonotary of the Supreme Court" (at [24]). His Honour gave the prosecutor the opportunity to make further submissions, but not the witness. The reasons given for the decision were (at [25]): "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]"
4. The Court of Appeal concluded that in all of those circumstances, the witness had been denied the procedural fairness she was entitled to receive, before the referral to this Court was made under s 24(4) of the Local Court Act. That required that the Magistrate to inform her, as the proposed contemnor, about the two options available under that section. Namely, either to exercise the Court's summary jurisdiction to deal with her contempt, or to refer the matter to the Supreme Court. She also had to be invited to make submissions on which of those courses should have been taken (at [78]).

The Prothonotary's case

1. In Mr Chan's case it was the TAFE Commission which applied for his contempt to be referred to this Court. Atkinson LCM also reached the view that he was in contempt. In those circumstances, the Local Court was empowered to refer "the matter" to this Court, "for determination": s 24(4).
2. The Prothonotary sought to distinguish Mr Chan's case from that which arose for consideration in Dangerfield, on the basis of the interaction between s 24 of the Local Court Act and r 55.11 of the Supreme Court Rules.
3. It was thus argued that r 55.11(6) permitted the Prothonotary to exercise the Court's power under s 24(5) to "dispose" of a reference by the Local Court under s 24(4) of the Local Court Act, by seeking and accepting the Crown Solicitor's advice, that no proceedings for contempt should be commenced in this Court.
4. Further, it was argued, a referral could be made by the Local Court under s 24(4) of the Local Court Act, for a person to be dealt with under r 55.11(6). Such a referral was also submitted to be relevantly different to a referral for the person to be dealt with under r 55.11(3). That was because a r 55.11(6) referral did not adversely affect the person's rights, in a relevant sense, at the time that it was made by the Local Court. In the result, it was submitted, the conclusions reached in Dangerfield as to the proper construction of s 24(4) and the procedural fairness it was there concluded a contemnor had to be given, before a referral to this Court was made by the Local Court, did not apply in the case of a r 55.11(6) referral.
5. This followed, it was argued in written submissions of 22 November 2016, because, "it cannot be the case that a magistrate is required to give a person an opportunity to make submissions about whether a contempt has occurred in circumstances where the magistrate, by the referral, is making no determination about the question".
6. In further written submissions of 5 December 2016 it was submitted that the conclusion that there was a requirement imposed on the Local Court to afford a possible contemnor procedural fairness could not be divorced from, and was inextricably linked to, the nature of the power being exercised. Thus it was relevant to consider that Dangerfield was a case where the presiding Magistrate had determined that proceedings for contempt should be instituted, unlike Mr Chan's case, where Atkinson's LCM's referral was made under r 55.11(6).
7. I am satisfied that these submissions cannot be accepted.

How Mr Chan came to be referred by the Local Court

1. In Mr Chan's case there was an application by the TAFE Commission that he be referred to this Court to be dealt with for his contempt. The view was also reached by Atkinson LCM that he was in contempt. Her Honour concluded that he should be referred to this Court, albeit what was finally referred to the Prothonotary contemplated that he would be dealt with in the way provided by r 55.11(6), as I will explain.
2. Consideration was not given, however, to the Local Court itself dealing with his contempt. Nor did Mr Chan receive the procedural fairness it was concluded in Dangerfield that s 24 required he be given, before the referral to this Court was made.
3. Atkinson LCM referred Mr Chan to this Court, after her Honour had explained to Mr Chan his obligation to enter the witness box to be examined and, repeatedly, that his refusal to do so could involve contempt of the Court.
4. The TAFE Commission's submission was finally that her Honour should order Mr Chan to enter the witness box on pain of referral to the Supreme Court for contempt under the powers given by s 24 of the Local Court Act. That application resulted in her Honour repeatedly giving Mr Chan the opportunity to purge the contempt she explained he was committing. Her Honour said, for instance, at T19: "Mr Chan, I'm going to stop you here. The fact is you haven't appealed the decision. Can I have back the copy of the notice of intention to appeal that you gave to me because I will leave that with the file. I am taking that I have given you numerous opportunities today to hop into the witness box in order to purge your contempt You are in contempt of court at the moment by refusing to answer the question- DEFENDANT: No, sorry-sorry, I - HER HONOUR: You are in contempt, Mr Chan."
5. At T20 her Honour said: "I have given you orders to get into the witness box, you have not complied with my orders, you have committed a contempt, in my view, in the face of the court and the appropriate course is for me now to refer the matter to the prothonotary for consideration as to whether or not you should be dealt with for contempt in the face of this court."
6. At T21 her Honour said: "Mr Chan, please listen to me now. This is my court room, you need to listen to me. You have been given many opportunities today to purge your contempt of this court and you have refused to do so. DEFENDANT: Your Honour, can I finish this- HER HONOUR: I am therefore referring this matter to the prothonotary for consideration as to whether you should be dealt with for contempt in the face of this court."
7. At T22 her Honour said: "No, no, today I have explained what the decision is, I'm the magistrate in charge, in my view, you have committed contempt in the face of this court because you have refused to answer questions at an examination. I have refused your adjournment application and given you reasons why. I now have an application for costs-"
8. At T23 her Honour said: "I have already made a decision to refer this to the prothonotary for contempt of proceedings to see whether or not contempt proceedings are brought against you."
9. Her Honour gave Mr Chan a further opportunity to make "last submissions", which did not result in any acceptance that he had to enter the witness box. The proceedings concluded with her Honour observing at T24: "Mr Chan, we're finished now. I've made my orders, this is the end of the proceedings today. You've got your Court of Appeal proceedings in relation to the vexatious matter. The prothonotary will get legal advice to decide whether or not you should be dealt with for contempt of court. I'm going off the bench now and I will get you to draw some more work."
10. By letter of 29 February 2012, the Registrar of the Local Court wrote to the Prothonotary attaching parts of the transcript of the proceedings. No reference was there made either to s 24 of the Local Court Act or the Supreme Court Rules. It was rather advised that: "Magistrate Atkinson has directed at page 24 (30) that this matter be referred to the prothonotary, to obtain legal advice to decide whether or not Mr Chan should be dealt with for contempt of court."

Section 24 of the Local Court Act

1. The Local Court Act 2007 (NSW) repealed the Local Courts Act 1982 (NSW), to which reference is still, however, made in the current Supreme Court Rules: see Dangerfield at [31]. Section 24 of the 2007 Act empowers the Local Court itself to deal with contempt of the Court. It may also refer such contempt to this Court "for determination". The section provides: "24 Contempt of court (cf LCA 1982, sections 27A and 27B) (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."
2. Section 24(4) thus contemplates that a referral can be made to this Court upon an allegation made by another party to the proceedings in the Local Court. A referral may also be made when it appears to the Local Court "on its own view", that a person is guilty of contempt. In Mr Chan's case the TAFE Commission made such an allegation and Atkinson LCM herself came to the view that he was in contempt.
3. In Dangerfield it was observed at [52], that s 24(4): "... 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."
4. It was concluded at [60] that: "… section 24(4) is concerned with circumstances where "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". Absent either such allegation, or a view reached by the Court itself, that a person has committed such contempt, no power of referral to this Court arises to be exercised."
5. It was also held that before a referral is made under s 24 to this Court, an alleged contemnor has to be given procedural fairness by the Local Court. The considerations which led to that conclusion included: 1. The fact that in the case of a referral to this Court under s 24(4), the Local Court does not charge a person with contempt. That is done by the Prothonotary upon commencing proceedings in accordance with r 55.7 (at [53]); 2. The maximum punishment for contempt that can be imposed by the Local Court under s 24(1) is a fine not exceeding 20 penalty units, or imprisonment for a period not exceeding 28 days. By way of comparison, no matter the reason for the Local Court's referral under s 24, when a matter is referred to the Supreme Court for determination under s 24(4), the person referred is put at risk of punishment for contempt pursuant to this Court's power, which is at large (at [55]); 3. 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, can prejudice a person's interests. That is because a referral under s 24 exposes that person to the jeopardy of significantly greater punishment by the Supreme Court, than if the contempt is dealt with by the Local Court (at [56]); 4. An alleged contemnor is only exposed to the unconstrained maximum penalty that may be imposed by this Court for contempt, upon the exercise of the s 24(4) power of referral (at [57]); and 5. The nature of the s 24(4) power and the consequence of its exercise on the rights or interests of the proposed contemnor, which have to be considered when s 24 is construed (at [59]).
6. It was also concluded in Dangerfield at [58] that: "… 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)."
7. It follows that whenever it is either alleged, or it appears to the Local Court on its own view, that a person is guilty of contempt, s 24 requires the Local Court to decide whether itself to deal with the contempt in question, in accordance with s 24(3), or to refer it to this Court "for determination" in accordance with s 24(4).
8. Contrary to the Prothonotary's case, any referral to this Court under s 24(4) can thus only result from the Local Court's determination as to "the circumstances of the contempt". Even if the Court does not form its own view that a person is guilty of contempt, the circumstances of the alleged contempt will have to be considered by the Local Court, in order to decide whether to refer the allegation of contempt to be disposed of by this Court, or itself to deal with that allegation.
9. The Supreme Court has an inherent supervisory and protective jurisdiction in relation to any contempt of a lower court: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; [1955] HCA 12 at [4] - [12] and Attorney General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 at 384. Section 53(4) of the Supreme Court Act assigns proceedings for such alleged contempt to the Common Law Division. The Prothonotary is the registrar of the Common Law Division: Supreme Court Act, s 119(2).
10. It is r 55 of the Supreme Court Rules which specifies how such proceedings are to be brought, whether by the Prothonotary, or someone else. As discussed in Dangerfield at [60] - [61], this rule is concerned with the proceedings brought in this Court and how procedural fairness is then afforded an alleged contemnor. It is not concerned with the Local Court's referral of a matter to this Court. That is governed by s 24 of the Local Court Act.
11. It was concluded in Dangerfield that s 24(4) must be construed as being subject to the common law rules of natural justice, which include the hearing rule. The difficulty with the distinction which the Prothonotary sought to draw in this case is that s 24 does not provide for a referral to this Court for advice of the kind provided for in r 55.11(6) to be obtained, namely, whether proceedings for contempt should be brought.
12. The making of the Supreme Court Rules by the Rules Committee cannot affect the proper construction or operation of s 24 of the Local Court Act. Not even rules made under the Local Court Act could be taken into account, in interpreting that Act: see Mine Subsidence Board v Wambo Coal Pty Ltd (2007) 154 LGERA 62; [2007] NSWCA 137 at [41].
13. As observed in Dangerfield at [51], s 24 only provides for two forms of procedure in the Local Court. Thereby that Court may either itself deal with a contempt in accordance with s 24(3), or it can refer either an allegation, or its own view, to this Court under s 24(4) "for determination". Once a referral is made under s 24(4), this Court must "dispose" of the matter "in the manner it considers appropriate": s 24(5).
14. As also discussed in Dangerfield at [59], any exercise of the s 24(4) referral power involves potential prejudice to an alleged contemnor's rights or interests. That is because the penalty which can be imposed upon the contemnor by this Court is greater than that which the Local Court can itself impose, if it decides to deal with the contempt itself under s 24(1).
15. In the result, it must be concluded that as was decided in Dangerfield, s 24(4) must be construed as always requiring that prior to any exercise of the s 24(4) referral power, an alleged contemnor be given the opportunity to address the Local Court on the question of whether he or she should be referred to this Court, given the potential consequences of the two courses available to the Local Court under s 24.

The Prothonotary's powers under Rule 55

1. The case advanced for the Prothonotary was, nevertheless, that s 121(2) of the Supreme Court Act and r 55.11 of the Supreme Court Rules empower the Prothonotary to exercise the Court's power "to dispose of" a s 24 referral by the Local Court.
2. It should firstly be observed that Mr Chan's referral was not, however, "disposed of" by the Prothonotary. Rather, the Prothonotary commenced these proceedings by summons, as r 55.6(2) requires. It appears, however, that only occurred after legal advice was obtained.
3. Section 121 provides: "121 Powers (1) In this section officer means a registrar, taxing officer, or other officer of the Court. (2) An officer may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the officer. (3) A judgment given or an order made by an officer may be set aside or varied by the Court. (4) Subject to subsection (3), a judgment given or an order made or direction given by an officer shall have effect as a judgment or order or direction of the Court, whether or not the judgment, order or direction is within the powers mentioned in this section of the officer. (5) An officer shall constitute the Court for the purpose of the exercise of the powers mentioned in subsection (2)."
4. Part 9 of the Supreme Court Act provides for the making of Rules of Court by the Rule Committee established by s 123. Section 124(10C) provides: "(10C) The rules made under this section may provide for the exercise by a registrar or other officer of the Court of any of the Court's administrative or judicial functions under this or any other Act and for the review by the Court of the exercise by a registrar or other such officer of any such function."
5. Rule 55 contemplates that contempt of another court may arise to be dealt with by this Court in various ways, including by proceedings commenced by someone other than the Prothonotary. Such proceedings may, for example, be commenced by a party to Local Court proceedings: r 55.11(2).
6. Rule 55 makes no reference to referrals from the Local Court under s 24 of the Local Court Act 2007. As discussed in Dangerfield at [31], it still refers to the predecessor legislation, the Local Court Act 1982 (NSW). Rule 55.11 provides: "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."
7. Proceedings for contempt brought in accordance with r 55 may involve the exercise of both administrative and judicial functions (see In the Matter of the Compensation Court of New South Wales (Court of Appeal (NSW), 20 December 1985, unrep).
8. In the case of a referral from the Local Court under s 24(4), s 24(5) requires this Court to "dispose" of the matter "in the manner it considers appropriate". The proceedings must be dealt with in accordance with r 55.11(1), if it is an allegation of contempt which is referred. If the referral is of a view which the Local Court itself has reached, that a contempt has been committed, r 55.11(3)(c) applies.
9. Where an allegation of contempt is referred by the Local Court under s 24(4), under r 55.11(1) "the Court may, by order, direct the registrar to apply by motion for, or to commence proceedings for, punishment of the contempt". An allegation of contempt of the Local Court may also come before this Court in some other way.
10. The Court's power of direction under r 55.11(1) is not one which has been conferred on the Prothonotary. It is a matter for this Court to determine whether the Prothonotary should, by order, be directed to commence contempt proceedings in such a case. Rule 55.11(1) also does not envisage the Prothonotary first obtaining advice from the Crown Solicitor, although administratively, it would appear to be open to the Court to direct the Prothonotary to do so.
11. Where the Local Court's referral under s 24(4) is of "its own view" that a person is guilty of contempt, the reference in r 55.11(3)(c) to s 27B of the Local Courts Act 1982 must now be understood to be a reference to s 24(4): Dangerfield at [31]. In that event, the Prothonotary "must commence proceedings for punishment of the contempt", without direction from the Court. Rule 55.11(3)(c) also makes no provision for the Prothonotary first obtaining advice.
12. It follows that r 55.11(6), is not concerned with a referral made to this Court under either s 24(4) of the Local Court Act, or a referral from the District Court under the District Court Act 1973, which are both specifically dealt with in r 55.11(3).
13. Rule 55.11(6) is rather concerned with referrals or reports made "pursuant to a power conferred by or under" some other Act from other "courts, bodies or persons" which are made "with a view to the Court dealing with a possible contempt of the court, body or person". Examples of other powers of referral can be found in s 73(5) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 99 of the Industrial Relations Act 1996 (NSW).
14. It follows that the Local Court had no power to refer Mr Chan to the Prothonotary "to obtain legal advice to decide whether or not Mr Chan should be dealt with for contempt of court" as he purportedly was. Nor was the Prothonotary conferred with power to "dispose of" his referral by the Local Court under s 24(4) in the way contemplated by r 55.11(6), whether it was either the TAFE Commission's allegation of contempt, or Atkinson LCM's own view that he was in contempt, which was in fact referred.
15. Despite what was conveyed in the letter of referral, the process provided for in r 55.11(6) did not apply to the Local Court's referral of Mr Chan under s 24(4) of the Local Court Act.

Mr Chan did not receive procedural fairness in the Local Court

1. It also follows that the distinction which was sought to be drawn between Mr Chan's case and the circumstances which arose for consideration in Dangerfield, was not established. Contrary to the Prothonotary's case, as held in Dangerfield, s 24 requires that a person in Mr Chan's position, both where it is alleged by another party to the proceedings that he or she is in contempt, or where the Court itself comes to that view, must be given an opportunity to make submissions about the course which the Court should pursue, before a decision to refer the matter to this Court is made.
2. Like in Dangerfield, having formed the view that Mr Chan was in contempt, Atkinson LCM had to advise Mr Chan of the discretions available under s 24 and also had to give Mr Chan the opportunity to address the question of how his contempt should be dealt with, before the power of referral granted by s 24(4) was exercised.
3. Mr Chan was unrepresented. There was no adjournment so that he could receive advice, nor was he given, as he had to be, an explanation of the options open to the Local Court under s 24, or their consequences. In the result it cannot be inferred that Mr Chan was aware of the discretions available to the Local Court under s 24, or their consequences.
4. Nor did he have an opportunity to address the question of whether the Local Court should itself have dealt with his alleged contempt under s 24(3), if he wished to advance such submissions. In that event, the TAFE Commission would also have had to be given an opportunity to respond.
5. It must, accordingly, be accepted that like in Dangerfield, Mr Chan did not receive the procedural fairness which s 24 required he be given.

The finding of contempt must be revoked and the matter returned to the Local Court

1. In the result, it follows that had the jurisdictional question which has now arisen to be resolved been raised before Mr Chan was found to have been in contempt of the Local Court, the conclusion that these proceedings were a nullity would have been irresistible.
2. Mr Chan did not receive the procedural fairness which it was concluded in Dangerfield s 24 of the Local Court Act required he be given in the Local Court, before he was referred to this Court under s 24(4). In those circumstances, the Court had no jurisdiction to entertain the proceedings brought by the Prothonotary.
3. The matter of Mr Chan's alleged contempt was, however, referred, heard and determined before the jurisdictional question which arose for consideration in Dangerfield was decided. The result is that unlike those proceedings, these proceedings are not a nullity: see State of New South Wales v Kable (No 2) (2013) 252 CLR 118; [2013] HCA 26 at [32] - [34].
4. Nevertheless, as the Prothonotary accepted in final written submissions, despite all that has transpired thus far and the contempt which I have also concluded that Mr Chan committed in the Local Court, when he refused to enter the witness box to be examined as he had been repeatedly ordered, in the circumstances it is appropriate that I revoke my earlier finding of contempt.
5. The parties did not agree, however, as to what orders should follow.
6. The Prothonotary contended that, like the orders made in Dangerfield, the summons could be dismissed and the matter remitted to the Local Court. The Prothonotary also finally submitted that it would be open to the Court to deal with the matter under r 55.11(1), Mr Chan's contempt having come to its attention in the way that it has.
7. While that is a possible course open in the circumstances I have discussed, I do not consider that course to accord with what the dictates of justice require in all of the circumstances which have arisen for consideration.
8. Nor, however, do I consider that it is appropriate to accede to Mr Chan's submissions, initially that I should simply dismiss the proceedings and finally, that the Local Court should not be notified of the outcome of the proceedings.
9. Mr Chan's conduct in the Local Court was considered by Atkinson LCM, to have been contemptuous. The Local Court Act, properly construed, required, that before his contempt was referred to this Court to be dealt with, that he should have been advised of the discretions available under s 24 and given an opportunity to address the Local Court on the question of whether it, or this Court, should deal with his contempt.
10. While Mr Chan was deprived of the procedural fairness he ought to have received, before the referral power was exercised by the Local Court, the TAFE Commission's position may not be ignored. After all, it was its allegation of contempt which Atkinson LCM concluded had been made out.
11. The TAFE Commission was not only entitled to pursue its right to examine Mr Chan, as it sought to do, it was also entitled to ask the Local Court, as it did, to deal with the contempt involved in Mr Chan's refusal to submit to that examination, by a referral to this Court under s 24. At that time Dangerfield had not been decided. No doubt if it had been, the procedure there discussed would have been followed in the Local Court.
12. In the result, I am satisfied that while these proceedings should now be dismissed, the matter must be referred back to the Local Court to be dealt with as it considers appropriate, in all of the circumstances which have unfolded. In the circumstances I consider that justice requires that the Local Court determine how the matter of Mr Chan's contempt should be further dealt with, after Mr Chan is afforded the procedural fairness s 24 requires.
13. There remains, of course, a possibility even now, that despite all that has transpired Mr Chan still may avail himself of the opportunity to purge his contempt of the Local Court. The Local Court, after hearing the parties, might also decide that it should itself deal with his contempt. Those are matters for that Court to deal with.
14. In the result, I am satisfied that the matter which was referred should be remitted to the Local Court.

Orders

1. For these reasons, I order that: 1. The finding that Mr Chan was in contempt of the Local Court is revoked; 2. The summons is dismissed; 3. The matter is remitted to the Local Court; 4. There be no order as to costs. 5. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

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