Saltalamacchia v Parsons [2000] VSCA 83

Court of Appeal (Vic)|2000-05-15|Before: PHILLIPS, CHARLES and BUCHANAN, JJ.A.

The application was thus not one made by a disgruntled litigant against its opponent, nor was it an application at the instance of the Attorney-General or the Director of Public Prosecutions, both of whom have independent functions to perform. This application, made in the Trial Division, was by the court's own officer and as such was properly regarded as the court itself acting in the matter. In those circumstances, whether or not a right of appeal is otherwise created by s.17(2) even after acquittal for contempt (as to which I express no opinion) it is, I think, particularly difficult to see how there can be any right of appeal from the dismissal of this application at first instance. If, as I have said, the court is acting of its own motion in making the application in the first place, albeit by means of the Prothonotary, can it be said that the court itself can appeal to itself, as it were (even if in another division) when the court has decided that no contempt has been committed? Suffice it to say that as at present advised I see some difficulty in giving an affirmative answer to that question in the absence of any provision specifically making that right of appeal plain. But I pass that by because in my opinion, even if competent, this appeal fails on the merits.

Having listened very carefully to the argument I am not persuaded that his Honour fell into error. At p.9 of the reasons for judgment his Honour said:

"The words spoken by the defendant do not undermine confidence in the administration of justice."

By that I understand his Honour to have meant that the words spoken by the defendant were not such as to undermine confidence in the administration of justice. So read, what his Honour said is consistent with authority, accepting Mr Young's submission that it is not the actual undermining of confidence that matters, but merely the tendency to undermine.

That these words, when spoken by the defendant, did not have that tendency can be understood because of the particular context in which the words were spoken. That context is very important to the decision in this case. First, the words were spoken to a small audience, and I have already described the audience. Secondly, it can scarcely be supposed that the words spoken were calculated to attract any further publication; it was the solicitor to whom the words were presumably addressed who initiated the suggestion of telling the judge. (Cases in which the words in question have been spoken amid the glare of publicity can be distinguished.) It seems to me that what was said can properly be characterised as the immediate and unpremeditated response of the respondent to the first notification to him of the injunction which had just been granted against him. The words spoken were an emotional response to the communication being made and there was nothing in them, I think, of intimidation or defiance; just vulgar abuse. It was suggested by counsel that the words were a colourful means of asserting the futility of enjoining the respondent against doing what he had already completed (at least for the day) but of course to assert that futility would not per se be contempt. True it is, a solicitor should have known better than to let his tongue run away with him in the way that happened here but it seems to me, after due consideration of the arguments that were put so ably by Mr Young, that on the proper test of what is and what is not contempt of court, there was no error below.

In short I agree with Cummins, J. that for the reasons he gave this was not a contempt of court.

The order of the court will be appeal dismissed with costs.

[3] [1996] VicRp 62; [1996] 2 V.R. 117 at 145-7, 164 and 178-9

[4] [1999] HCA 57; (1999) 73 A.L.J.R. 1576 at 1580 per Gleeson C.J. and Gummow, J.

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