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THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HIDDEN J
FRIDAY 13 FEBRUARY 1998
12914/97 - THE PROTHONOTARY v JOHN WILSON
Ms Latham for the Plaintiff/Respondent.
Mr Anstee for the Defendant/Applicant.
(Ms Latham handed written submissions to his Honour.)
(The applicant
moved on the notice of motion, and relies on the affidavit in support sworn by John Wilson dated 16 December 1997.)
ANSTEE: Your Honour I have just been served with the Respondent's submissions, and
I would go quickly to the Crown's point 12. And your Honour, s 6 of the Imperial Acts Application Act (1969) New South Wales is said to be in terms which exclude State acts from time to time in force in New
South Wales. And the Crown would seem to rely on those words your Honour to restrict my primary application today, which is that there is a constitutional impedment to the force of law which Pt 55 of the Supreme
Court Rules in particular might have. By those words, "or State act from time to time in force in New South Wales". But prior to those words, your Honour will see at paragraphs 6 B that (Read.)
Now we say, tracing through the history of the colony of New South Wales, and in the State of New South Wales, that there is a continuous line, not only as I have put in my submissions,
an adoption of the laws of England, but an application in the colony of those imperial enactments which gradually by U K enactments and New South Wales enactments, ultimately the Australia Act (1986) was gradually
restricted.
The presumption arises that that particular Act, the Imperial Acts Applications Act (1969), guaranteed the rights to the people of New South Wales encased in the
Magna Carta; and further, the Third Charter of Justices New South Wales, the Act of 1823, gave the Supreme Court, consisting of a chief justice and three judges, trial by jury.
Now those we say are acts which continue the application of Common Law of England, and any U K acts which would apply to New South Wales through the 19th century. There are others which touch upon the area, but I
draw your Honour's attention to those particular pieces of legislation.
In 1865 the Colony Laws Validity Act U K had an effect whereby it confirmed the New South Wales Legislature could demand its own
constitution. The legislation had the effect that powers given to the colonial parliament to make up their own constitutions, and clear power was given to the colonial parliament to override British statutes except
those applying by paramount 4. The paramount force argument of course is, it was expressed by necessary implication, intended to apply to the colony.
Ultimately then, the Constitution Act New South Wales of
1902, relying on the authority given to it by the Colony Laws Validity Act U K gave the New South Wales parliament power to legislature for the peace, order, and good government for the people of New South Wales.
Your Honour the thrust of our argument is that appreciating that the Court of Appeal, particularly in the case of Willesee, which is cited in my submissions, has decided the point and indicated that the practice
of trial fault and tempered court upon indictment is obsolete, and has not been used since the beginning of the century. We say that the Supreme Court of New South Wales is still bound by the constitutional power of
force of those statutes I have taken you through, and that that judgment ought to be read first of all in view of the high force of law if you will of the constitutional power held closely as important by my client.
HIS HONOUR: How can that pattern of legislation, which undoubtedly grants powers at various times, be said to demand trial by jury of contempt proceedings? I'm not quite sure how you get to the end
of the road.
ANSTEE: Because of the nature of that giving for all time encapsulated in the Magna Carta that it was for heirs and successors in effect for time thereafter. And that cannot then be narrowed
by first of all domestic legislation, domestic legislation such as the Supreme Court Act 1970. And I put in my submissions the power of the Court would arise from s 23 of that Act, but s 48 does in fact bear on it.
S 23 and 24 seem to have relevance your Honour.
I also indicate in my written submissions your Honour that the Supreme Court Summary Proceedings Act did not appear to be in issue, but it does touch on the
issue. And I think the Judiciary Act - Commonwealth Act of 1901; it's in fact 1903.
Additional to the submissions your Honour, I rely on Forbes (?) exparte Bevan, 1972 127 CLR page 7. His Honour Menzies J
in the High Court said: "Inherent ..... Contempt." I take your Honour to that case just to shoot home the inherent jurisdiction of this Court, and to say that the inherent jurisdiction arises in a similar
way to the force of law of the English acts of parliament which I first took your Honour to, and those of the colony and state of New South Wales.
The main cases your Honour seem to concern s 80 of the
constitution, and there is a clear guarantee of trial by jury indictable cases for Commonwealth matters. They are referred to in my submissions, Cheatle v The_Queen being one your Honour. But that those cases are
ofcourse restrictive in their application to this particular matter arising out of the constitution. But had some bearing and application on the principles which we would seek to apply in this particular matter.
I have taken some care to distinguish Willesee's case in a fairly narrow fashion from paragraph E on page 2 of my submissions, but I would seek to also emphasise in the paragraph before as a matter of
statutory interpretation the judgment of Stephen J in FCT v Smorgan (1977) volume 16 ALR page 721: "A construction of the statutes ..... opposite effects."
It is not the nature of the case which is
in issue but simply that quotation your Honour. My client feels that the Supreme Court Act will, and the rules thereunder Pt 55 r 11, creates a hardship upon him in that he has not got a clear entitlement as it
stands presently for any jury to be empaneled in his trial for contempt.
HIS HONOUR: I understand what Stephen J was saying was where a statute is ambiguous, a construction which minimises interference
with the rights of a subject is to be preferred. But where a statute clearly takes away common law rights, that is the end of it is it not?
AINSTEE:Yes. We don't say it's not clear.
HIS
HONOUR: What other interpretation can be put on Pt 55 r 11 than what it says; what other construction can be put upon Pt 55 .L 11 which could be said to retain a right to trial by jury? There isn't one, is
there?
ANSTEE: Well there is an issue, perhaps of which I have already outlined, of repugnancy to what applied up to 1970. Unless your Honour wants to hear me on anything else in particular, I do rely on
my submissions, and in writing, and that is in effect what I wanted to put before your Honour. I might as the Crown just to clarify which affidavits they are relying on when they commence.
HIS HONOUR: Ms Latham, I take it you do not produce any evidence, you rely on your submissions?
LATHAM:Yes you Honour. In our submission, purely a matter of 1aw we are on the subject of evidence, the
extent that my friend has referred to the affidavit of the Defendant that was filed on 16 December, although it does not appear in clear terms in that affidavit, but it has actually been the subject of admissions
since that time, and my friend can certainly correct me if this is not the case, Mr Wilson has never taken issue with the fact that he did the acts alleged to constitute the contempt.
ANSTEE: I object to that submission.
LATH.AM: Your Honour it has been recorded, and I can take your Honour to that. The reason I made that submission your Honour is regardless of the law that exists on this
matter, and I will take your Honour to that, there are no issues of fact which are capable of being tried by a jury in this matter. The only issue is one of law, namely do the acts complained of constitute a
contempt. And I only raise that your Honour because it seems to me that this is an entirely academic argument in the context of the history of this particular matter.
HIS HONOUR: Miss Latham just explain to
me if you would though, you say Mr Wilson has never taken issue with the facts of the acts complained of. Do you say he has made admissions thus far?
LATH.AM:I say he has made admissions, yes your Honour.
HIS HONOUR: What, in affidavits filed?
LATHAM:Your Honour.
HIS HONOUR: Or oral evidence.
LATHAM:If your Honour will give me sometime to locate that material, I know that it is in
the file somewhere. But your Honour that is not my primary point.
HIS HONOUR: At the end of the day contempt proceedings, whether they be summary or not, are primary in nature, and like any other
criminal proceedings, the person charged either pleads guilty or not guilty. But if that person charged pleads not guilty, then all issues are up for determination. Am I right?
LATHAM:Yes your Honour.
HIS HONOUR: So that if even if it were so that Mr Wilson had perhaps never contested, or even admitted the acts complained of, would that have any greater status in the contempt proceedings than an alleged
confession within an ordinary criminal trial?
LATHAM:It may not your Honour, but as I understand it, Mr Wilson's primary desire, or perhaps his primary motivation for seeking a trial by jury, that is he
has expressed a lack of confidence in the impartiality of judicial officers of this Court. Now that is my understanding. My understanding is that he feels that he will not receive a fair trial unless it is by the
meeting, if you like, of members of the community.
HIS HONOUR: I have gathered that, and am I right also in thinking that it's also part of Mr Wilson's reasoning that the assessment, whether what
he is alleged to have done amounts to contempt, is something best made by twelve ordinary citizens empaneled as a jury?
LATHAM:That might be Mr Wilson's understanding, but we say that really is not a
matter that is fit for a jury to determine. That is one of the reasons why the procedure has been summarily for the last ninety-five years at least.
HIS HONOUR: You are saying even if there were trial by
jury, that would be a question of law, not a matter for the jury's assessment as a question of fact?
LATHAM:Quite so. That is why I put it in those terms. But I don't want to waste undue time going
over that point. There is another preliminary point that arises, and again I don't want to make this a huge issue, but if my friend is mounting a constitutional argument, then strictly speaking a 78 B
notice should have been filed, and it has not been filed. However, we take the view that this is not a constitutional argument at all, and so I am not going to stand on formalities as it were, I simply raise it
because I think it has to be raised. And if your Honour feels that it's necessary to deal with that aspect of the matter, then I will leave that to your Honour if I could.
Your Honour if I could just go
to my submissions. There is one aspect of the background material which I should correct. At the bottom of paragraph 1 I refer to 21 October 1997 as the date upon which the Defendant - it should read
"Defendant' not "plaintiff' - was charged. That is in fact an error. He was charged, as I understand it, on the date of the incident, which was September 5, but 21 October was in fact the date that
the Director of Public Prosecutions took over the prosecution for the purposes of the criminal proceedings under the Crimes Act.
Of course we say that nothing turns on the fact that the Defendant was charged on 5 September.
HIS HONOUR: He was a charged by police?
LATHAM:Charged by police, yes. We say nothing turns on the fact
that he was charged on 5 September and antecedent to the date on which either the Chief Judge at Common Law directed proceedings for contempt to be pursued, which was 12 September 1997, or the date of the filing of
the summons by the plaintiff, namely 14 October 1997. We say nothing turns on that simply because, as your Honour will see from paragraph 2 to the background, the question of the prosecution under s 326 of the
Crimes Act is purely a matter for- the Director of Public Prosecutions.
This Court, and indeed no court can compel the Director of Public Prosecutions to proceed or not proceed with a charge under that
section. And the deferral of those proceedings falls within the exercise of that discretion.
Your Honour will see that annexure 2 to the submissions, and I should tell your Honour that this is a print-out of
the case history of the prosecution under s 326, that case history refers to the fact that on 27 November the Local Court was advised that those proceedings would be forestalled as it were pending the outcome of the
proceedings in the Supreme Court.
Now this is no different from the circumstance where a charge on indictment is preferred in the District or Supreme Court, and what is commonly referred to as a backup charge
stays in the Local Court until the disposition of the proceedings on indictment, and then the backup charge is simply dismissed.
HIS HONOUR: Mr Anstee maybe I should ask you whether you do take any point
arising from dependency of s 326 proceedings in the Local Court?
ANSTEE:We do your Honour, and that is also a subject of my written submissions. Paragraph H, page 4 I think is the relevant part your Honour.
HIS HONOUR: You press that submission?
ALNSTEE:Yes your Honour. Apart from what I said there, we do just emphasise your Honour that particular charge has been treated as an indictable charge, or
a matter to be dealt with by way of committal.
HIS HONOUR: I don't understand Miss Latham to have been suggesting an analogy other than common indictable of fences. There is a lessor charge which is
proceeded with if the indictable proceedings flounder, but is simply withdrawn if the indictable proceedings lead to conviction. I don't think the analogy was meant to be any more precise than that.
ANSTEE:We also do say your Honour that the filing of the summons by the Chief Judge at Common Law, Mr Justice Hunt on 20 October, is the date initiating that process in this Court for contempt, and it's our
submission that that is the key date and that your Honour shall able to glean something from the timing of the charge on 5 September as between the initiation process by his Honour on 20 October as a matter of
timing of the processes.
Your Honour did ask me as to an ambiguous matter regarding the judgment.
HIS HONOUR: Yes, proceed.
ANSTEE:And so far as the test for determining questions of
inconsistency under s 109 of the Commonwealth's constitution, there is a test known as "covering the field test", described by his Honour Mr Justice Isaacs in Clyde Engineering Co Ltd v Cowburn (1926)
1926 37 CLR at page 489 in the following terms: "A competent legislature .. . upon the same field."
And that takes me back to my argument that your Honour is vested with jurisdiction to decide
such a point as between the New South Wales constitution and the Supreme Court Act when one ventures upon the other's field. I just draw your Honour's attention to that.
HIS HONOUR: Miss Latham.
LATHAM:Your Honour before I go any further I have just had a brief discussion with my instructing solicitor to the extent that my friend really wants to press this constitutional point. S 78 B of the Judiciary
Act is in mandatory terms, and I don't think we can proceed with this until a notice is issued and we have the opportunity to seek the views of every other attorney general in Australia. Now that can be done at
fairly short notice, and it has been done at fairly short notice, and if the matter was to be adjourned f or a week we could ensure that by this time next week there would be no impediment to these proceedings
continuing. But I really do not think we have a choice in the matter; if he wants to make it a constitutional point, then the obligation is upon him to issue that notice.
HIS HONOUR: To a certain extent you are calling s 80 of the Commonwealth Constitution -
ANSTEE: Yes your Honour.
HIS HONOUR: It may well be that the Judiciary Act procedure has to be adopted.
ANSTEE: It is our submission your Honour that this motion is in effect an administrative procedure within the trial
process, and that your Honour would not need to go through the processes suggested by my friend in deciding a matter which is merely discrete to the trial process.
HIS HONOUR: I don't think it matters by
what vehicle they are raised Mr Anstee, I just want to have a look at s 78.
SHORT ADJOURNMENT
HIS HONOUR: Have you both had an opportunity to look at 78?
(Parties replied in the affirmative.)
LATHAM: While my friend is looking at that, can I just say that it still appears to me, from looking at the opening words of 78 B 1, that as a matter of construction
it assumes that the cause does involve a matter arising under the constitution, or involving its interpretation. It isn't a case ofsimply asserting that the matter involves a matter arising under the
constitution, and my friend might wanted to assert that it does, but what of course we say that it does not, and in the event that your Honour finds that there is not a matter involving the interpretation of the
constitution, then perhaps 78 B does not apply.
HIS HONOUR: Perhaps I better clarify this. Mr Anstee the second section of your written submissions appears to be an assertion that the guarantee and jury
trial in s 80 of the Commonwealth constitution is not confined to the prosecution of of fences under Commonwealth law, and extends to prosecutions in New South Wales under State law. Am I right?
ANSTEE: No, that in fact is contained at the base of point 2 D on page 8. We do not say that Commonwealth constitution at s 80 has a direct effect on these proceedings. It's a discrete point that s 80 would
not be in existence but for the history which I took your Honour through via the colony and beginnings of the State of New South Wales, but we understand that the constitution document in Commonwealth arena is
discrete for Commonwealth laws, and indeed the Judiciary Act gives a power for the state courts to hear Commonwealth matters. But that is the thrust of that section, and the Commonwealth Judiciary Act as well.
HIS HONOUR: So that I can be clear on this. You are referring to s 80 as it were by analogy?
ANSTEE: Yes.
HIS HONOUR: But you are not suggesting it has any direct bearing on the revision of the issue here?
ANSTEE: That is right.
HIS HONOUR: I wondered whether 2 D might be suggesting that in so
far as s 80 guarantees a right to trial by jury, if a State law denies that right there is a s 109 consistency, and the State law is incorporative to that extent. I wasn't sure whether that is what 2 D was
intended to convey.
ANSTEE: If your Honour would give me a moment I will ccnfer with my client and instructing solicitor.
HIS HONOUR: I will reserve my decision on this matter in any event,
and if in the meantime you crystallize an argument which clearly does raise a question of the interpretation of the Commonwealth constitution, it may then be necessary to proceed under s 78 B. We could do that any
time up to the time of the judgment. Are you content with that Mr Anstee?
ANSTEE: Yes your Honour.
HIS HONOUR: It just keeps your options open in case there is something there that you want
to give some more reflection to.
Miss Latham, in the meantime I have had the opportunity to go to your submissions, but you have dealt with the preliminary matters about whether there is a real issue of fact
here, and you are have raised the possible s 78 B problem which will I simply sit on for the moment.
LATHAM:Could I just complete one aspect of the submission in relation to the issues of fact. There was an
affidavit filed by Natalie Adams of the Crown Solicitors Office, and it was filed in the principal proceedings, the proceedings for contempt. The affidavit annexures a press release issued by the Defendant on 14
November 1997, and it is the contents of that press release upon which I rely to found the assertion that the admissions have been made, and that really what the Defendant is seeking by way of a trial by jury is an
opportunity to air his grievances before the members of the community rather than any issue as to his liability for punishment.
ANSTEE:At this point I would object to the annexure going in in whole.
LATHAM:It's already been filed in the proceedings.
AINSTEE:Filed in the Court of appeal.
LATHAM:No it was filed in this Court you Honour in proceedings commenced by the summons. And I only go to it
your Honour because my friend did say, subject to what affidavits I wanted to rely upon, he would have something to say about them, so I am merely giving the Court notice that I do intend to rely on that affidavit
filed in the principal proceedings. In particular, the last paragraph above the subheading on page 2 of the press release, particularly at about point 5 with the words beginning 'when the judge smiled and
dismissed the claim" and the words immediately following.
HIS HONOUR: Mr Anstee I must say I think the material is admissible in this application, given that Miss Latham had raised the argument
about whether there is a live issue of fact. The more significant question though is whether it matters. You say these are proceedings criminal in nature where no assumption can be made about what might be in issue
ANSTEE:Yes your Honour, but in any case just to be clear your Honour I think my friend is relying on the affidavit of 14 November 1997, and it's a one page annexure -
LATHAM:No you don't have the complete annexure.
ANSTEE: I do object to those annexures as they are.
HIS HONOUR: I note the objection but I will allow them.
LATHAM: I do not propose
to say much more in addition to what is set out in my written submissions under the subheading 'Argument'. I simply draw your Honour's attention to the fact that the Court of Appeal v Willesee remains
the law in this State and binding upon your Honour. It was a case where the contempt was not in the face of the Court, where this is a contempt in the face of the Court, and were there any need to rely upon the fact
that an argument was mounted in Willesee, that a contempt not in the face of the Court did not give rise to any need for the speedy vindication of the Court.
The passage that I have set out at the top of page
2 from the judgment of his Honour Samuels J answers that point in any event. Namely, it really does not matter whether it's in the face of the Court, or not in the face of the Court. It's the nature of the
offence which commends the summary mode of dealing with it.
I simply raise that as a side issue as it were. Your Honour will see from the unreported decision of Galea in the New South Wales Egg Corporation
that -
HIS HONOUR:You have attached that have you?
LATHAM:Yes I have your Honour. I might take your Honour briefly to that because that is the only outstanding point in relation to the application of
Magna law of New South Wales. I take your Honour briefly to page 6 of that unreported judgment. And I might preface my reference to this part of the judgment by indicating to your Honour that the Appellant in Galea
argued that a certain statute was not a law for the peace welfare and good government of New South Wales, that it was ultra vires, it was an attempt to take himself outside the terms of the legislation for the
purposes of production.
But your Honour, the point I make is that it is in fact the self same argument that is being mounted here, and the President in the Court of Appeal, as he then was, about the middle of
page 6 says: "The alleged inconsistency with Magna Carta ... New South Wales."
In essence what I say is that the Court of Appeal decision in Galea is right on point. Again it's binding on your
Honour, and so to the extent that my friend wants to mount the argument based on Magna Carta, it we say should not find any favour with your Honour.
The upshot is that Magna Carta is just another statute in
the law of New South Wales which is capable of being amended or modified by subsequent statutes enacted by the parliament of New South Wales of which the Supreme Court is one. And the rules of course made thereunder.
Accordingly, as I have said, the requisition by trial by jury should be refused. Unless I can assist your Honour further I don't think I can add anything.
HIS HONOUR: Anything in reply Mr Anstee?
ANSTEE: Nothing in reply.
HIS HONOUR: Just as matter of interest, I don't imagine anything turns on it, is it alleged that the paint was
thrown before Mr Acting Justice Murray had formally adjourned the Court or after?
LATHAM: Yes it was before he had left the bench. In any event your Honour I know that there are some authorities which
consider the meaning of contempt in the face of the Court, and your Honour will recall that there was one involving a threat to senior counsel who was representing a party in Family Law proceedings, indeed it was
our immediate past President of the Bar Association at the time, and that threat occurred as I recall in the lobby after the proceedings had adjourned, and nonetheless it was held to be a contempt in the face of the
Court for the reasons that it occurred almost immediately.
I just raise that your Honour because I don't think that there is anything particularly precious about having the proceedings adjourned before
the alleged contempt is committed.
HIS HONOUR: In any event this is not being dealt with as a contempt in the face the Court, although I take it it's common ground that if there is a contempt, it was
one in the face of the Court.
ANSTEE: Yes.
HIS HONOUR: I will reserve judgment in the matter and I think perhaps I best say this: I won't give it before the week after next. That will
allow opportunity for any further submission you would like to make Mr Anstee on any Commonwealth constitutional point, and we will allow time to consider whether s 75 B notices ought to be given. So if you wish to
make any further submission on that basis, would you mind just doing it succinctly in writing, and supplying a copy to Miss Latham, and then if necessary we will re assemble the Court.
I direct that if there
is to be any further written submission on your client's behalf on the constitution matter, it should be delivered to me and a copy to the Crown by 4 p.m. Friday next.
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