R v Perkins [2002] VSCA 132

[ 2002] VSCA 132

Criminal law - Contempt of Tribunal - Victorian Civil and Administrative Tribunal Act (1998) - Jurisdiction conferred by s.137 of Act - Not dependent on power conferred by s.137(2) - Ability of Tribunal to determine its own procedures - No error in permitting counsel to appear to assist Tribunal.

Sentence - Legal practitioner -- Serious example of contempt - No identifiable error - Sentence within available range.

2. I have had the benefit of reading the judgment of Vincent, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

7. In my view, the grounds on which the applicant relied in support of his application for leave to appeal are wholly without foundation for the reasons given by Vincent, J.A. Consequently, the application should be dismissed.

12. On 26 October 2000, the applicant appeared as counsel for a party in a matter before the Victorian Civil and Administrative Tribunal. At the outset of the proceeding he applied to the Presiding Member to disqualify himself from hearing the case. This application was based upon the manner in which he perceived that he had been treated by the member, in an earlier proceeding, not involving the same parties, in which the applicant had been similarly engaged.

15. In the course of presenting submissions in support of this application, the applicant employed highly intemperate and vituperative language. Among a number of abusive remarks to the same general effect were:

"... in that case [the earlier matter] you behaved towards me personally in a dishonest ... cowardly and craven way ..." "You behaved, in my respectful submission, in a way which was utterly disgraceful." "You are utterly incapable of bringing anything other than your bigotry to a case in which I am involved." "You are utterly incapable of redeeming the bigotry, unprofessionalism and cowardice that you have personally shown to me and it would be impossible to do my job independently and tell my client that anything I say has the slightest prospect of acceptance by you."

19. 5 With dignity in the face of this extraordinary outburst, the Presiding Member refused the application and indicated his intention to proceed. The applicant then sought to argue further. When told that the matter had been ruled upon, he made a second application, this time for an adjournment, on the ground that he felt himself unable to act as counsel in a case before the Presiding Member by reason of the manner in which, he alleged, he had earlier been treated. To this, the Presiding Member responded that, if the applicant felt unable to proceed, he would consider an adjournment for the purpose of enabling the applicant's client to seek other representation. After further discussion, the hearing was adjourned until 7 December 2000.

22. On 1 December 2000, the applicant was served with a Notice signed by the Principal Registrar of the Tribunal which informed the applicant that application would be made on 14 December for an order that he be punished for contempt of the Tribunal pursuant to the provisions of s.137 of the Victorian Civil and Administrative Tribunal Act 1998. The Notice further stated that the applicant was required to attend at the time and place specified for the hearing. Particulars of the contempt were set out, and quotations were included from the transcript taken on 26 October. This notice was served with an affidavit sworn by the Principal Registrar on 1 December 2000, producing the transcript and offering three minor corrections.

25. On 14 December 2000, the application came before the Tribunal constituted by a Judicial Member.[1] It was adjourned to 19 December and then to the following day when it proceeded. The applicant was represented by senior and junior counsel who submitted on his behalf, first, that the Tribunal had no jurisdiction, on the basis that the proceeding had not been properly commenced and, second, that there was no right of appearance by the senior and junior counsel claiming to represent the Principal Registrar. Both of these submissions were rejected and, after a brief adjournment, counsel for the applicant then informed the Tribunal that their client accepted that he had been guilty of contempt[2] and an apology was proffered on his behalf.[3] Submissions were then made by counsel instructed by the Registrar and counsel representing the applicant as to the proper disposition of the matter.

28. On 21 December 2000, the Tribunal found the applicant guilty of contempt, delivering reasons for judgment, and imposing a fine of $2,500.

31. On 4 January 2001, the applicant filed two notices, one applying for leave to appeal to this Court against conviction and the other for leave to appeal against the sentence imposed.[4] These were supported by an affidavit sworn by the applicant on 4 January 2001 where he referred, in part, to what happened on 26 October and then to the course of proceedings before the Judicial Member.

34. In order to regularize the form in which the matter comes before the Court, leave has been granted to the applicant to file a further notice setting out the grounds of his applications. That has been done and they now read:

"1. The jurisdiction of the Tribunal under s.137 of the Victorian Civil and Administrative Tribunal Act 1998 was not properly invoked. 2. The Tribunal fell into error in permitting counsel to appear as counsel assisting and receiving from them and relying upon irrelevant and prejudicial material and thereby finding that the applicant was guilty of contempt, and imposing the penalty of a fine of $2,500."

39. The first of the grounds of appeal raised by the applicant concerns the process adopted below. Shortly put, the applicant complains that the proceedings for contempt under s.137 were not properly commenced and therefore the Tribunal had no jurisdiction to deal with the matter.

42. The relevant provisions should, I think, be set out at this stage:

"(1) A person is guilty of contempt of the Tribunal if they - (a) insult a member of the Tribunal while that member is performing functions as member; or (b) insult, obstruct or hinder a person attending a hearing before the Tribunal; or (c) misbehave at a hearing before the Tribunal; or (d) interrupt a hearing before the Tribunal; or (e) obstruct or hinder a person from complying with an order of the Tribunal or a summons to attend the Tribunal; or (f) do any other act that would, if the Tribunal were the Supreme Court, constitute contempt of that Court. (2) If it is alleged or appears to the Tribunal that a person is guilty of contempt of the Tribunal, the Tribunal may - (a) direct that the person be arrested and brought before the Tribunal; or (b) issue a warrant for his or her arrest in the form prescribed by the rules. (3) On the person being brought before the Tribunal, the Tribunal must cause them to be informed of the contempt with which they are charged and thereafter adopt any procedure that the Tribunal thinks fit. (4) The Bail Act 1977 applies, with any necessary modifications, to and in respect of a person brought before the Tribunal under this section as if the person were accused of an offence and were being held in custody in relation to that offence. (5) If the Tribunal finds that the person is guilty of contempt of the Tribunal, it may - (a) in the case of a natural person, commit the person to prison for a term of not more than 5 years or impose a fine of not more than $100 000 or do both; (b) in the case of a corporation, impose a fine of not more than $500 000. (6) If a person is committed to prison for a term, the Tribunal may order his or her discharge before the end of the term. (7) The Tribunal may accept an apology for a contempt and may remit any punishment for it either wholly or in part. (8) A warrant for the committal of a person found guilty of contempt of the Tribunal must be in the form prescribed by the rules. (9) A fine imposed on a person under this section may be enforced as if it were a fine imposed on that person by the Supreme Court on finding them guilty of an offence. (10) A power conferred on the Tribunal by this section is exercisable only by a judicial member."

46. The ground is based upon the proposition that, as s.137(2) empowers the Tribunal to have arrested and brought before it a person alleged to have been guilty of contempt, the issue of a warrant and arrest are prerequisites to any proceeding being initiated under s.137. Either intentionally or through legislative oversight, the argument proceeds, and regardless of the circumstances, the degree of seriousness of the conduct involved, and whether or not the alleged offender need be brought before the Tribunal at all (he or she may in fact be present), or, indeed, whether or not the person could be expected to attend in response to a Notice of the kind issued here, the individual must be taken into custody before the Tribunal can assert jurisdiction in the matter.

49. Recognizing that the word "may" in s.137(2) cannot simply be read as "must", for if that were the case, the Tribunal would possess no discretion at all with respect to the arrest of any person alleged to have committed contempt, counsel for the applicant contended that, in effect, it should be read as meaning "may only". There is no foundation by reference to the language or statutory scheme for the adoption of this interpretation. The word "may" should be treated as indicating the presence of an ability to act but not the necessity to do so.

52. The various forms of conduct which can constitute contempt of the Tribunal under s.137(1) may occur in the face of the Tribunal[5], at some other place[6], in relation to a specific matter[7] or scandalize the Tribunal generally[8]. The acts constituting the perceived contempt may vary from the very serious to the relatively minor. There may be a need, in some cases, to have a recalcitrant individual arrested and brought before the Tribunal. On other occasions, as in the present case, to do so would involve gross overreaction. Recognition of the diversity of situations in which contempt may be committed and the degree of seriousness to be attributed to particular pieces of behaviour is reflected in the dispositions available. In some circumstances, the provision of an adequate apology may be regarded as sufficient. Others may require the imposition of a fine up to $100,000 or imprisonment for a maximum period of five years or both a fine and imprisonment.

55. As the applicant rightly contends, the Victorian Civil and Administrative Tribunal is not a court and it possesses no inherent jurisdiction. The only power which it has with respect to contempt is that conferred by s.137. No formal requirements with respect to the manner in which charges are to be laid are set out in the section, but the Tribunal is able to determine its own procedure once a person charged with contempt is brought before it. Presumably, if an alleged contemnor refuses to attend or ignores a Notice of the kind served upon the present applicant, the issue of an arrest warrant may, as a matter of judgment, be considered to be necessary. Once before the Tribunal, the individual must be informed of the contempt with which they are charged. Thereafter the Tribunal may adopt any procedure that it thinks fit, consistent, of course, with its obligation to accord natural justice to the person charged. An interpretation of s.137(2) which would necessitate arbitrary and, I suspect, generally unnecessary deprivation of liberty in every case encompassed by s.137 before the matter could be dealt with by the Tribunal, is one which, in the absence of a clear statutory direction to that effect, should be rejected.

58. There is nothing in s.137 itself or in the nature of the power conferred which could give rise to any reasonable suggestion that the jurisdiction of the Tribunal to deal with charges of contempt is dependent upon the exercise of the power under s.137(2)[9], still less the kind of arbitrary power already discussed.

61. The Tribunal has been given under s.137, the jurisdiction to deal with alleged or perceived acts of contempt. At most, s.137(2) is concerned with the manner in which the potential risk of non-attendance of the alleged contemnor before the Board can be secured. The provision is patently facilitative with respect to the jurisdiction conferred by the section. The situation is not one in which:

"the statute ... establishing [the Tribunal] and conferring its jurisdiction requires that that particular matter [the absence of an arrest warrant] be taken into account ... as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case."[10]

65. The process followed in the present case was in terms of the legislative scheme and the circumstances, lawful and entirely appropriate. It is possible only to conjecture about the sense of grievance that the applicant would almost certainly and understandably have experienced if he had been arrested and taken into custody, particularly when regard is had to the fact that a monetary penalty was ultimately imposed.

69. An argument was advanced on behalf of the applicant to the effect that the Tribunal fell into error in permitting counsel to appear to assist them.

72. It rested upon s.59 which addresses the question - who are to be regarded as parties in the Tribunal's original and review jurisdictions? The Principal Registrar was not included in any of the categories listed and accordingly could neither require the attendance of the applicant nor engage legal representation to assist the Tribunal at the hearing, the argument went.

78. Section 32 provides that assistance in the administration of the Victorian Civil and Administrative Tribunal is to be provided by a Principal Registrar, a Chief Executive Officer and supporting registrars and staff. Some such structure would seem to be essential if the body is to perform its various functions properly and efficiently. A range of administrative matters may well require attention in the proper handling of an allegation that a person has been guilty of contempt of the Tribunal. These would include the provision of formal notification of the fact and substance of an allegation to the alleged contemnor, the arrangements necessary to enable a hearing to proceed and possibly the provision of notification to witnesses. Clearly, it would be highly desirable in most situations that the Tribunal dealing with an allegation of contempt has the assistance of counsel. These tasks would reasonably be undertaken by the Principal Registrar. Their performance would not involve any delegation of the function or powers of the Tribunal as was suggested in argument on behalf of the applicant. The Principal Registrar cannot, in performing functions of this kind, including the securing of counsel to assist the Tribunal, which are at least incidental if not crucial to the conduct of a proper hearing, be viewed as a party seeking to appear before it in accordance with ss.59 and 60, but as carrying out their role in a legally permissible and entirely appropriate fashion.

81. There is no need in the present context to express any view concerning the relationship between the broad discretion given to the Tribunal under s.98 to regulate its own proceedings and that conferred upon it by s.137(3) with respect to proceedings for contempt. However, the power conferred upon it by s.137(3) is certainly wide enough to include the adoption of the sensible course of giving audience to counsel to assist it. If this were not the case, a Judicial Member considering an allegation of contempt would be required to act as an inquisitor; a clearly unsatisfactory situation and one fraught with potential for injustice and conducive to the development of a sense of unfairness being experienced by the person charged.

84. The second ground contains the further assertion that counsel assisting the Tribunal introduced irrelevant and prejudicial material into the proceeding and thereby may have induced the Tribunal to regard the conduct of the applicant as being more serious than it was. This led, it was asserted in argument, to the imposition of a substantial penalty where an apology was all that was reasonably required. There is nothing in the remarks of the Judicial Member which suggests that he may have taken into account any irrelevant material in his determination of an appropriate penalty. I observe, however, that he understandably regarded the conduct of the applicant as constituting a serious example of contempt when committed by a legal practitioner. In this context it must not be forgotten that the applicant was not only a barrister of some years standing and as such could reasonably be expected to appreciate the significance of the conduct in which he engaged, but also one who, as senior counsel assisting the Tribunal pointed out, had experience in this area of the law.

87. The Presiding Member was clearly mindful of the relevant principles and factual circumstances of significance in the case before him specifically directing attention to observations of Callaway, J.A. in Prahran Magistrates' Court v. Murphy[11] and Kirby, P. in Registrar of the Court of Appeal v. Maniam (No. 2)[12] with respect to the manner in which the courts have assessed the seriousness of different forms of contempt.

90. He took into account a number of matters put forward by the applicant's counsel in mitigation of penalty. However, as he also stated:

"The system of justice which we tend to take for granted in this country is founded very much on the acceptance by the general public that the Members of Tribunals and the Judges of our Courts to the limits of their ability will make fair and just decisions. The capacity of an individual to make an impartial determination of the facts, and to understand and conscientiously apply the law is a primary requirement of fitness for office whether as a Judge or a Tribunal Member. The Tribunal's authority and acceptance by the community comes from the acceptance by the general community that those persons in the position of Tribunal Members will discharge the trust reposed in them and that they will administer justice according to the law. Unjustified attacks upon the credit of a Member while he is discharging his duties of office if allowed to go unpunished will tend to destroy the trust and confidence that the community has in the system."

94. In summary, I am unable to detect any error in the Tribunal Member's approach to his sentencing role and there is no error demonstrated by reference to the penalty imposed which was clearly well within the range of those available to him in the circumstances.

[1] Section 3: "Judicial Member" means the President or a Vice-President. Under s.10, the President must be a judge of the Supreme Court and can be appointed for a period not exceeding five years. Under s.11, a Vice-President must be a judge of the County Court and can be appointed for a similar period. A reserve judge of the County Court is eligible for appointment as a Vice-President for a term not exceeding three months.

"There can be no question that counsel must be able in appropriate circumstances to make a submission that a judge should be disqualified on the ground of apparent bias without the making of that submission being treated as a contempt. Most such submissions are properly and courteously made, even when they are misguided, and the fact that the tribunal is annoyed or insulted by the fact that such an allegation has been made, cannot convert the making of such a submission into contempt of court. But counsel might make a submission that the tribunal is biased in so insulting and disrespectful a manner as to commit a contempt."

The Magistrates' Court at Prahran v. Murphy [1997] 2 V.R. 186 at 209.

[4] Section 138 of the Victorian Civil and Administrative Tribunal Act (1998) reads in part:

"(1) A person who is committed to prison or fined under section 137 may, with the leave of the Court of Appeal, appeal to the Court of Appeal in accordance with Part VI of the Crimes Act 1958 against the punishment as if -

(a) they were a person convicted on indictment in the Trial Division of the Supreme Court; and

(b) the punishment imposed were the sentence passed on their conviction."

[9] See MacGroarty v. Clauson [1989] HCA 34; (1989) 167 C.L.R. 251.

[10] Craig v. The State of South Australia [1995] HCA 58; (1995) 184 C.L.R. 163 at 177.

[11] [1997] 2 V.R. 186 at 216.

[12] (1992) 26 N.S.W.L.R. 309 at 314.