Henderson v Taylor, Information Commissioner of Queensland
[2006] QCA 490
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Henderson v Taylor, Information Commissioner of Queensland[2006] QCA 490
- Add to List
Henderson v Taylor, Information Commissioner of Queensland[2006] QCA 490
Reported at [2007] 2 Qd R 269
Henderson v Taylor, Information Commissioner of Queensland[2006] QCA 490
Reported at [2007] 2 Qd R 269
SUPREME COURT OF QUEENSLAND
CITATION: | Henderson v Taylor, Information Commissioner of Queensland [2006] QCA 490 |
PARTIES: | PAUL DAVID HENDERSON (second respondent) |
FILE NO/S: | Appeal No 3458 of 2006 SC No 6205 of 2005 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal Miscellaneous Application – Civil |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 24 November 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 October 2006 |
JUDGES: | Mackenzie, Philippides and Philip McMurdo JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | 1. The appeal is dismissed 2. The appellant/applicant pay the respondent’s costs of the appeal 3. The application filed 4 August 2006 be dismissed with costs |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – INJUSTICE – REFUSAL OF ADJOURNMENT – the appellant/applicant requested an adjournment of the contempt hearing before the trial judge – adjournment was refused – whether the trial judge erred in exercising judicial discretion to refuse the adjournment APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – whether there is a right of appeal against a judgment dismissing a criminal contempt proceeding APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – the respondent brought an application for security for costs of this appeal – the application was heard on 25 July 2006 – the application was dismissed initially with costs in favour of the appellant/applicant to be assessed on a standard basis – the appellant/applicant sought costs on an indemnity basis – whether the appellant/applicant is entitled to costs on an indemnity basis APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – reasons for judgment in the security for costs application were given by the Court of Appeal on 28 July 2006 – the reasons referred to the appellant/applicant having been a bankrupt – the appellant/applicant argued the reference to bankruptcy was unnecessary – whether the reasons for judgment should be amended APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – HEARING OF APPEAL – appellant/applicant applied for judicial disqualification of certain judges who constituted the Court of Appeal who heard a previous unsuccessful application by the respondent for security for costs – application irrelevant as the Court was differently constituted Federal Court of Australia Act 1976 (Cth), s 24 Criminal Code 1899 (Qld), s 8, s 590AA, s 592A, s 668D, s 669A, Chapter 67 Freedom of Information Act 1992 (Qld), s 52, s 73, s 101C, s 101G Judicature Act 1876 (Qld), s 10 Supreme Court of Queensland Act 1991 (Qld), s 29, s 69 Supreme Court Act 1995 (Qld), s 254 Uniform Civil Procedure Rules 1999 (Qld), r 14, r 166, r 209, r 925, r 926 Australian Building Construction Employees’ and Builders’ Labourers Federation v David Syme & Co Ltd (1982) 40 ALR 518, discussed Benson v Northern Ireland Road Transport Board [1942] AC 520, discussed Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, applied Davern v Messel (1984) 155 CLR 21, cited Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394, discussed O'Shea v O'Shea and Parnell (1890) 15 PD 59, discussed R v Foster & Others; Ex parte Gillies [1937] St R Qd 67, discussed R v Lowrie [1998] 2 Qd R 579, discussed R v Queensland Television Ltd; Ex parte Attorney General [1983] 2 Qd R 648, cited Thompson v Mastertouch TV Service Pty Ltd (1978) 19 ALR 547, discussed Witham v Holloway (1995) 183 CLR 525, discussed |
COUNSEL: | The appellant/applicant appeared on his own behalf T J Bradley for the first respondent |
SOLICITORS: | The appellant/applicant appeared on his own behalf Nicol Robinson Halletts for the first respondent |
- MACKENZIE J: There was an application to vacate the hearing date that was refused after argument before the commencement of the substantive hearing. The background to the proceedings in respect of which the appeal against Holmes J’s dismissal of the appellant’s application that the respondent be punished for contempt of court has been brought is set out comprehensively in the reasons for judgment of McMurdo J. I accept what he has written as accurate for the purposes of disposing of the matter. It is unfortunate that one of the alleged instances of contempt of court arose because the respondent took exception to the appellant’s attendance at her residence to serve her personally, in a case where he was entitled to do so to effect personal service which the UCPR required. With the benefit of hindsight, it was a case where, had she not declined, shortly before the incident happened, to appoint solicitors who might accept service on her behalf, subsequent events may not have unfolded as they did. Having said that, I agree with McMurdo J’s analysis of the merits of the appellant’s case. I agree for the reasons he has given that, if the appeal is competent, it should be dismissed on the merits.
- There is also the appellant’s application for a decision that the judges who constituted the Court of Appeal which heard an unsuccessful application by the respondent for security for costs disqualify themselves from further involvement in the appeal on the ground that a reasonable apprehension of bias exists. The application also seeks two orders set aside, the one made on 28 July 2006 dismissing the order for security for costs and giving the appellant seven days to file written submissions in support of indemnity costs (not taken advantage of by the appellant) and the other a directions order made by Jerrard JA on 4 August 2006 requiring him to provide an index to the appeal record, under pain of a guillotine order, which was duly complied with. Since none of the judges sitting in this hearing of the substantive appeal are ones who determined either of the orders sought to be set aside, no issue of apprehended bias arises. If it is inherent in the appellant’s submissions that there should nevertheless be an order or declaration by the judges complained of, or some other form of declaration or order in that regard, the application is misconceived. Also sought is an order “withdrawing and suppressing from publication the orders sought to be vacated”. As the submission developed, the contents of the reasons were a significant concern to the appellant.
- I agree with McMurdo J’s reasons and conclusions with respect to the appellant’s application for indemnity costs and with regard to the appellant’s complaint about the contents of the reasons delivered by the Court of Appeal in relation to the application for security for costs. No basis has been shown for varying the order that the respondent pay the appellant’s costs on the application for security for costs on a standard basis. Nor is there a basis for suppressing the orders or the reasons already published in relation to that application. Both of those grounds of the appellant’s application filed on 4 August 2006 fail, as does his argument about disqualification. The application must be dismissed with costs.
- The respondent made a supplementary submission that there is no right of appeal in respect of an acquittal of a charge of contempt of court and that the appeal is therefore incompetent. No wider submission than that was made. The basic assumption in the submission is that the proceedings were for a criminal offence. Then it is said that, since a right of appeal is not a common law right, it can only be conferred by statute. The right of appeal in criminal proceedings conferred by Ch 67 of the Criminal Code does not extend to cases where there has been acquittal of contempt of court.
- Section 8 of the Criminal Code Act 1899 preserves the authority of Courts of Record to punish a person summarily for “the offence commonly known as ‘contempt of court’”. It therefore sets contempt of court apart from the structure of the Criminal Code and in particular, for present purposes, the appellate structure with regard to criminal offences. The right of appeal against conviction and sentence conferred by s 668D is limited to a person convicted on indictment. In respect of the Attorney-General’s right of appeal against sentence under s 669A, it extends to sentences pronounced by the court of trial, or a court of summary jurisdiction dealing with an indictable offence summarily. The definition of “court of trial” in s 668 restricts the former of those to a right of appeal in respect of a sentence imposed on indictment. There is no right of appeal against a finding of guilt or penalty expressly conferred by Ch 67 in respect of a conviction for contempt.
- One of the respondent’s submissions is that neither s 254 of the Supreme Court Act 1995 nor s 29 of the Supreme Court of Queensland Act 1991 confers a right of appeal against a dismissal of a criminal charge. Section 29 is, on its face, concerned with declaring that the whole of the jurisdiction previously exercised by the Full Court is within the jurisdiction of the Court of Appeal. It begs the question as to what it comprises. It provides no assistance in positively conferring jurisdiction. However s 69 of the same Act says:
“(1)Subject to this and any other Act, an appeal lies to the Court of Appeal from—
- any judgment or order of the court in the Trial Division;
and
- without limiting paragraph (a)—
(i)a judgment or order of the court in the Trial Division made under this Act;”
- Section 254 of the Supreme Court Act 1995 is as follows:
“An appeal shall lie to the Court of Appeal from every order made by a judge in court or chambers except orders made in the exercise of such discretion as aforesaid.”
It is identical to s 10 of the Judicature Act 1876 save that in the Judicature Act the term “full Court” appears instead of “Court of Appeal”.
- The starting point in Queensland in relation to appeals in contempt matters is the decision of the Full Court in R v Foster & Others; Ex parte Gillies [1937] St R Qd 67. It was decided by the majority, (Webb and Henchman JJ; Blair CJ dissenting), that a right to appeal lay against an order that a judge had made that the appellants were guilty of contempt and orders consequential on conviction. The source of the right of appeal was held to be s 10 of the Judicature Act which is materially reproduced in s 254 of the Supreme Court Act 1995.
- Foster was affirmed as expressing the law of Queensland in R v Queensland Television Limited [1983] 2 QdR 648. In Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394 the existence of a right of appeal against a finding of guilt of contempt does not seem to have been challenged. These were all appeals in cases where there had been a finding of guilt. No Queensland cases where there was an appeal against a dismissal were brought to our attention, or found in subsequent research. A broad view of the operation of s 10 of the Judicature Act was acted on in Ex parte Maher [1986] 1 Qd R 303 and Ex parte Veltmeyer [1989] 1 Qd R 462, both of which were appeals in relation to bail. In Maher, an appeal against an order for bail pending appeal, Kelly SPJ relied on Foster. Thomas J, at 307, addressed and dismissed a submission, arguably based on an imperfect analogy but not dissimilar to the one pressed in this matter, in the following passage:
“As against this Mr Fitzgerald QC submitted that at common law the Crown had no right of appeal upon a bail application. An application of the present kind was likened to the familiar example of an acquittal in a criminal trial, from which there is no appeal. He submitted that s 10 should be read so as not to interfere with the principles of the common law. However there is no ambiguity in s 10 and there is no reason to give it an artificial or restricted meaning. … it may now be taken as clearly established that an appeal will lie under s 10 of the Judicature Act 1876 from a decision of a Judge in chambers who deals with bail applications.”
- Prior to an amendment to s 592A (now s 590AA) of the Code, preventing the practice, the Court of Appeal heard several appeals, without its jurisdiction being questioned, against refusals to stay indictments (R v Drozd (1993) 67 A Crim R 112; DPP (Qld) v Wentworth [1996] QCA 333; R v Johannsen and Chambers (1996) 87 A Crim R 126. In R v Long (No.1) [2002] 1 Qd.R. 662 the majority in the Court of Appeal (Williams JA and Byrne J) held that an appeal against refusal of a change of venue for a trial on indictment was not authorised by s 254 of the Supreme Court Act 1995 or s 69 of the Supreme Court of Queensland Act 1991. With regard to the latter, Williams JA said that the introductory words of the section made it subject to the Criminal Code, which had no provision for appeals against interlocutory orders. He also said that the principle that there could not be an appeal against an interlocutory order made in a criminal trial was “well recognised”. In respect of such orders there was no right of appeal on either the civil side or the criminal side. (By contrast, for over 50 years prior to the passage of the Supreme Court of Queensland Act 1991, it was accepted that deciding appeals in contempt matters was one species of the jurisdiction exercised by the Full Court).
- In recent times, the correctness of Foster has been revisited. In R v Lowrie [1998] 2 Qd R 579, Davies JA concluded that the majority view in Foster was wrong. Pincus JA distinguished Foster, holding that it did not concern an interlocutory order in a criminal matter, which was excluded from the operation of s 254. Shepherdson J focused on the inherent jurisdiction of the court as the basis for entertaining an appeal.
- In Lowrie, Pincus JA observed at 587 that:
“It is not at first sight easy to see how one can confine the reasoning of Foster to appeals in a particular species of criminal matter, namely contempt proceedings.”
After consideration of authority, particularly Connell v R(No 5) (1993) 10 WAR 424, he held that s 254 (which does not have the words of limitation referred to above found in s 69 of the Supreme Court of Queensland Act1991) should be read as if it excluded from its scope interlocutory orders made in respect of trials on indictment.
- The same difficulty would need to be confronted in relation to differing treatment of appeals against dismissals and appeals against findings of guilt for contempt. The respondent relied on Thompson v Mastertouch TV Service Pty Ltd (1978) 19 ALR 547, which was followed in Australian Building Construction Employees’ & Builders Labourers’ Federation v David Syme & Co Ltd (1982) 40 ALR 518, where it was held that s 24 of the Federal Court of Australia Act 1976 (Cth), which conferred jurisdiction to “hear and determine appeals,” did not confer jurisdiction to entertain an appeal against acquittal on a charge of contempt heard on the merits. Thompson was approved in Davern v Messel (1984) 155 CLR 21, although the principle stated in Thompson was held not to preclude the Federal Court from hearing and determining an appeal from a decision in which the Supreme Court of a Territory had quashed, on appeal to it, the conviction of an accused.
- The underlying principles relied on by Deane J with whom Smithers and Riley JJ agreed in Thompson were set out as follows, at 556:
“It is a well-established principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law or as abolishing or modifying fundamental common law rights unless it uses words that point clearly and unambiguously to that conclusion.”
- Later at 559-560, he answered in the negative the following question:
“The essential question is whether, … the grant of jurisdiction contained in the general words of s 24(1)(a) and (b) should be construed as encompassing jurisdiction to hear and determine appeals brought as of right upon judgments of acquittal pronounced by superior courts in circumstances where it is a well-established and fundamental principle of the common law that no such appeal should ordinarily lie.”
- An allegation of contempt consisting of impeding the course of justice was traditionally considered to be a criminal contempt (Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 494). It is now well established (Witham v Holloway (1995) 183 CLR 525) that the differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory and that all proceedings for contempt must realistically be seen as criminal in nature and therefore proved beyond reasonable doubt. However, it was also said (at 534):
“However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not.”
- We were not invited to overrule Foster in its entirety in these proceedings. The focus of the argument was on the principle stated above in para [14]. A critical question is whether it is open to construe s 254 as conferring a jurisdiction to decide an appeal following a finding of guilt but as not doing so in respect of a dismissal. It may legitimately be said that the analysis of the proper scope of the application of s 254 of the Supreme Court Act 1995 and its analogues is in a rather piecemeal state. But Foster is an authority of long standing. It should only be overruled in its entirety if it is shown to be clearly wrong after argument that has exposed adequately as many of the relevant issues as possible from all viewpoints. As the focus of the respondent’s argument was narrow and the appellant did not address them, that did not occur.
- The “critical question” posed in [16] above involves tension between at least three principles. The first is that a statutory provision that has been interpreted as conferring appellate jurisdiction in general terms and has, in particular, been interpreted as giving a right of appeal in the case of a finding of guilt of contempt of court, would in the absence of any clear indication to the contrary have a like interpretation if there is an order dismissing the charge of contempt.
- The second is that if it were to be held, contrary to the conclusion in Foster, that s 254 does not afford a right of appeal in any contempt case, a person would have no right of appeal against finding of guilt or a dismissal. Although that would accord with an historical view of the matter (see Bradshaw v Attorney-General [1998] QCA 42, McPherson JA at p 17) such an outcome, at least in respect of a finding of guilt, would not sit easily with modern notions of justice. Of course if that situation arose, it could be remedied by a clear legislative prescription of whether there should be a right to appeal and its extent.
- The third is the principle of finality of an acquittal of a criminal offence. The differences in procedure between contempt charges and ordinary indictable offences is adverted to in the passage from Witham v Holloway quoted in [16] above. However there seems to be no cogent reason why finality should depend on whether it was due to a jury verdict, as in a criminal trial, or the finding of a judge after trial, as in a hearing for contempt.
- I have come to the conclusion that what at first sight seems an intractable difficulty of construction that would inhibit an interpretation of s 254 in a way that had the result that an appeal lies in cases where there has been a conviction but does not do so in the case of an acquittal is to be resolved by resort to the principle approved in the High Court in Davern v Messel. Foster was a case of appeal following a finding of guilt and says nothing about an appeal against a dismissal of a charge. The logic that seems to dictate that the words of s 10 of the Judicature Act and its subsequent re-enactments are the source of a right of appeal against a finding of guilt and against a dismissal of a charge must yield to the principle of finality of acquittals in light of authority.
- Foster remains as authority for the existence of a right of appeal against conviction of contempt when the order is made in the Supreme Court. Because of the somewhat limited ambit of argument, it is not appropriate, or necessary in view of the outcome of the appeal on the merits, to consider overruling Foster in its entirety in this appeal. I conclude that this aspect of the respondent’s argument succeeds and that the appeal was incompetent.
- Even if that conclusion were erroneous, as I am also satisfied that the appeal must be dismissed on the merits for the reasons stated by McMurdo J, the orders are that the application to vacate the hearing date be refused; that the appeal against the orders made on 30 March 2006 be dismissed and that the appellant pay the respondent’s costs of and incidental to the appeal; and that the appellant’s application filed 4 August 2006 be dismissed with costs.
- PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of McMurdo J and agree for the reasons stated therein that no error is demonstrated in the primary judge’s refusal to grant an adjournment of the contempt proceedings or in the dismissal of those proceedings. I also agree with his Honour’s reasons concerning the matters dealt with in paras [80] to [82].
- As to the jurisdictional issue raised by the respondent, I agree for the reasons stated by McMurdo J that the present appeal is incompetent, but add some brief additional observations. In R v Foster & Others; Ex parte Gillies [1937] St R Qd 67, Webb and Henchman JJ (Blair CJ dissenting) held that pursuant to s 10 of the Judicature Act 1876 (Qld) a right of appeal lay to the Full Court from a finding of contempt of court by a Supreme Court judge. Foster was applied in R v Queensland Television Limited [1983] 2 Qd R 648, although subsequently the view of the majority in Foster has been doubted (see R v Lowrie [1998] 2 Qd R 579 at 581-584 per Davies JA). However, the decision in Foster is not concerned with the distinct jurisdictional issue raised in the present case as to whether a right of appeal lies where there has been a dismissal of contempt proceedings. And whatever the scope of s 254 of the Supreme Court Act 1995 (Qld) (which replaced s 10 of the Judicature Act), it does not confer on the appellant a right to bring an appeal in the circumstances of the present case.
- The right of appeal and jurisdiction which is conferred in general terms by s 254 of the Supreme Court Act 1995 (Qld) is to be construed in accordance with the principles referred to in Thompson v Mastertouch TV Service Pty Ltd (1978) 19 ALR 547. It was there held by Deane J (Smithers and Riley JJ agreeing) that the general provisions of s 24 of the Federal Court of Australia Act 1976 (Cth) in conferring appellate jurisdiction did not confer jurisdiction to hear an appeal from an acquittal pronounced in criminal proceedings after a hearing on the merits. That conclusion was reached applying the well established principle of statutory interpretation that a statute is not to be taken as effecting a fundamental alteration in the general law or as abolishing or modifying fundamental common law rights unless it uses words that point clearly and unambiguously to that result. In the light of that principle of construction, it was held that the general words conferring jurisdiction to hear appeals did not sweep away the fundamental principle of the common law recognised in the decision of Benson v Northern Ireland Road Transport Board [1942] AC 520, that a person be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction. Mastertouch has been consistently followed and has been approved by the High Court in Davern v Messel (1984) 155 CLR 21.
- All proceedings for contempt of court must realistically be seen as essentially of a criminal nature (Witham v Holloway (1995) 183 CLR 525 at 534), but in any event, the contempt alleged in the present proceedings falls within the category traditionally viewed as criminal contempt. The decision in Mastertouch was applied in Australian Building Construction Employees’ and Builders Labourers’ Federation v David Syme & Co Ltd (1982) 40 ALR 518 where it was held that, although a charge of criminal contempt was in some respects sui generis, an acquittal of a charge of criminal contempt after a hearing on the merits was an acquittal in criminal proceedings for the purposes of the principle in Benson’s case.
- Nor do I consider that a distinction is to be drawn for the purposes of the application of the principle in Benson’s case between an acquittal by jury verdict and the dismissal of contempt proceedings of the nature before the primary judge. In this regard I note that in Mastertouch it was observed at 551 that:
“In Benson’s case … the only issue involved before the court of summary jurisdiction was essentially a question of law … It is apparent that any general principle recognized by the above cases applies in respect of judgments of acquittal pronounced, after a hearing on the merits, by a court of competent jurisdiction regardless of whether the judgment was pronounced after the verdict of a jury and regardless of whether the relevant issues were issues of fact or of law.”
- Applying the principle of construction in Benson’s case, I do not consider that s 254 of the Supreme Court Act, properly construed, extends to confer a right of appeal in the present case.
- PHILIP McMURDO J: This is an appeal against the judgment of Holmes J (as her Honour then was) which dismissed the appellant’s application that the respondent be punished for an alleged contempt of court. The appellant’s principal argument is that Holmes J ought to have adjourned the hearing of his contempt proceeding, instead of proceeding to hear it over his objection as she did on 30 March 2006. The appellant had said that he wished to gather further evidence and that he was unfairly deprived of the opportunity to do so. Further he argues that upon the evidence which was tendered, his case should have been upheld.
- For the respondent, Ms Taylor, it is argued that there was no error in either the refusal of an adjournment or the dismissal of the contempt proceeding. But further, it is argued that the appeal is incompetent, on the basis that there is no right of appeal against a judgment dismissing a contempt proceeding of this kind.
- The respondent’s submissions should be upheld, including that of there being no right of appeal. That last matter, of course, makes a consideration of the merits of the appellant’s arguments unnecessary. However those matters have been fully argued, on each side, and in case I am wrong about the jurisdictional question, and because of the wider interest in a claim that the respondent, as the holder of an important public office, has acted in contempt of court, it is appropriate to consider also the merits of the appeal.
Background to the contempt proceedings
- The appellant, Mr Henderson, is a qualified legal practitioner and a former solicitor of this Court. On 27 April 2005 he sought access to documents from the Crime and Misconduct Commission pursuant to the Freedom of Information Act 1992 (Qld). The documents related to conduct of the Queensland Law Society. On 10 May 2005, the CMC notified him that it did not hold any documents of the kind which he had sought. He asked for what the Freedom of Information Act calls an internal review of that response, ie in this case by the CMC[1]. Apparently he did not receive advice of the outcome of that internal review, so that he thereby became entitled to apply for what the Act calls an external review[2].
- An application for such an external review is made to the Information Commissioner. Part 5A of the Act provides for the appointment of the Commissioner by the Governor in Council[3] and prescribes the Commissioner’s functions[4]. The Commissioner was then and remains the present respondent, Ms Taylor.
- On 7 July 2005, Ms Taylor’s delegate advised Mr Henderson of her preliminary view that the CMC was correct in saying that it did not hold any relevant documents. She asked him to provide any written submissions in support of his case by 29 July. He did not do so. Instead he foreshadowed court proceedings and sought an undertaking that Ms Taylor not proceed further with her review. No undertaking was offered and no application for an injunction was made. But Mr Henderson did commence proceedings, by an originating application filed on 1 August 2005. The respondents to those proceedings were Ms Taylor as first respondent and Ms RJ Moss, Assistant Information Commissioner, as second respondent.
- The originating application sought these orders:
“1.A declaration that the preliminary view of the Respondent dated 7 July 2005 is void and of no effect or alternatively that it be vacated.
- The Respondent be restrained by injunction from proceeding to make a final decision in external review 2005/F0313.
- A declaration that the time set by the Respondent on 7 July 2005 be stayed or alternatively be enlarged.
…”
- Unfortunately that originating application issued from the registry without the insertion of a date for hearing. On the same day Mr Henderson purported to serve the originating application by leaving it at the premises of the Office of the Information Commissioner. The defect in the court document, which it must be accepted was due to an error in the Court’s Registry, was then pointed out by Ms Taylor. On 11 August Mr Henderson requested its return so that he could “cause re-service of the corrected application”. The service copies of the originating application and the supporting affidavit were returned to him a few days later. Then on 23 August, he wrote to Ms Taylor claiming that the defective document could not be corrected because of what he said were “unresolved issues” between him and the Court’s Principal Registrar.
- On 14 November, Ms Moss wrote to Mr Henderson, asking for advice by 2 December as to whether he did wish to make a written submission in relation to the preliminary view which Ms Taylor’s delegate had expressed on 7 July. His response was to write to Ms Moss on 30 November in these terms:
“Unless you advise me that you will bide the order of the Court no later than 5pm sharp Friday 2 December 2005, I intend to apply without any further notice for an urgent interim injunction to restrain your client.”
- Then on the following day, 1 December, he filed an amended originating application and a supporting affidavit. This time Mr Henderson did not go to Ms Taylor’s workplace to serve the documents. Instead he went to her home, just after 8.00 pm that evening. Ms Taylor was not home but others were. He left the papers at the front door.
- Ms Taylor took strong exception to this attempt to serve her at home, rather than at work. On 5 December she wrote to Mr Henderson as follows:
“I consider your conduct in attending at my home to attempt to effect service of legal papers connected with my role as Information Commissioner to be absolutely unacceptable and unnecessary, and done with the intention to intimidate me. As such I have referred your actions to the Queensland Police Service for investigation. You are aware of my work address, which clearly is the appropriate place for you to send correspondence connected with my role as Information Commissioner, and for you to attend, during office hours, to deliver any documents connected with my role as Information Commissioner. If you ever again attempt to attend my private residence in connection with any matter related to my employment, I will again report the matter to the Queensland Police Service and seek their advice about the possibility of bringing charges against you.”
- As the letter confirmed, Ms Taylor also complained to the police of his visit to her home. Documents obtained by Mr Henderson from the Queensland Police Service indicate that she complained on 5 December. That evening two police officers went to Mr Henderson’s home. They told him that they were involved because Ms Taylor had complained of his going to her home about a matter in which she was involved as the Information Commissioner. Mr and Mrs Henderson took strong exception to this visit and the police involvement. Documents later obtained by Mr Henderson from the police show that they went to his home to investigate an offence of stalking, but that after speaking to him, police concluded that there was “insufficient evidence available to substantiate any offence”.
- At this point some matters might be noted. First, the court documents had to be served personally according to the Uniform Civil Procedure Rules 1999, unless Ms Taylor waived the requirement, which she did not do, at least until her letter of 5 December. That letter shows some misunderstanding of the requirements of personal service of a court document, by treating it as equivalent to delivering correspondence. At least until his visit to her house, it would seem that Ms Taylor had not retained lawyers. Next, his attempts to serve her that evening might be explained, in part at least, by his belief that he should apply urgently for an interim injunction and that accordingly there was an urgency in serving the (amended) originating application.
- In these circumstances, her response may or may not have been proportionate. But that was not the question for Holmes J, in deciding whether her response constituted a contempt of court as wrongfully interfering with the course of justice in relation to his originating application. As to the relevant question, her letter of 5 December protested only his visit to her home. The letter threatened police action only if he again attempted that, rather than if he further prosecuted his originating application. Indeed the letter effectively waived the requirement for personal service of further documents as long as they were left at her workplace.
Proceedings for contempt
- On 9 January 2006 Mr Henderson filed an application (within his original proceeding) against Ms Taylor and Ms Moss of which the relevant parts were as follows:
“1. An order that the first respondent be committed to her Majesty’s correctional centre at Wacol for her contempt of court in refusing to bide the authority of the court to decide the issues in contention within Originating Application 6205 of 2005 and in implementing reprisal action against the applicant as a party and as a witness within Originating Application 6205 of 2005 and for threatening further reprisal action against the applicant and for placing improper pressure on him.
2. In the alternative, an order that the first respondent be fined for her contempt of court in refusing to bide the authority of the court to decide the issues in contention in Originating Application 6205 of 2005 and in implementing reprisal action against the applicant as a party and as a witness within Originating Application 6205 and for further threatening further reprisal action against the applicant and for placing improper pressure on him.
3. An order that the second respondent be committed to her Majesty’s correctional centre at Wacol for her contempt of court in refusing to bide the authority of the court to decide the issues in contention within Originating Application 6205 of 2005.
4.In the alternative an order that the second respondent be fined for her contempt for refusing to bide the authority of the court to decide the issues in contention within Originating Application 6205 of 2005.
5. That the fine or fines payable by either or both respondents under paragraphs 2 and 4 hereof shall be paid to the Registrar of this court within seven (7) days of service of the orders on the respondents.
6. Such further or other order and directions as the court shall deem meet.”
The application, when filed, was given the hearing date of 17 February 2006. It was allocated two hours in the Applications List for that day.
- On 6 February the appellant filed another application (again within his original proceeding) by which he sought disclosure of documents by a non-party, the Commissioner of Police. That application was also made returnable on 17 February.
- Mr Henderson sought that date of hearing no doubt because 17 February was also the date for the hearing of his (amended) originating application, which he had attempted to serve on Ms Taylor at home.
- In this way Mr Henderson made three applications which then came before White J in the Applications List on 17 February. He told her Honour that he was not ready to proceed with his contempt application because he needed to obtain non-party disclosure from the Commissioner of Police (as to Ms Taylor’s complaint). On 1 February the Queensland Police Service had sent to him some documents, but he was pressing for more. That application was refused by White J, from which there was no appeal.
- Mr Henderson also sought directions that there be pleadings and disclosure in his contempt application. White J expressed the view that it was not appropriate for the contempt application to proceed as if it were a claim[5], but directed the delivery of points of claim and points of reply. That ought to have made it clear to Mr Henderson that he would not have the benefit of disclosure of documents from those whom he charged with contempt. Mr Henderson argues that they were in some way obliged to make disclosure of documents, and that unfairly Holmes J later decided his contempt proceeding without that obligation being discharged. But an obligation to make disclosure could have come in this context only by an order of the court, because the proceeding had not been started by claim or ordered to continue as if started by claim: Uniform Civil Procedure Rules r 209. In any case, because the application was to have the respondents punished for contempt, an order for disclosure would have been inapt, because of the privilege in relation to documents which would tend to subject a party to any punishment or penalty: see, eg Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 335-336 per Mason ACJ, Wilson and Dawson JJ. The existence of this privilege was itself a sufficient answer to the argument that the respondents to the contempt application should disclose any documents directly relevant to the proof of Mr Henderson’s case. In the same way, it would have been inapt to have treated the contempt proceeding as if started by claim, and to have thereby engaged the rules relating to the pleading of a defence which require an explanation of a denial or non admission[6], because such a direction would have been inconsistent with the respondents’ privilege. This is why those rules which deal specifically with contempt applications make no reference to disclosure or pleadings[7].
- White J accepted that the hearing of the contempt application had to be adjourned so that the appellant’s case could be fairly particularised by points of claim. Towards the end of the argument, her Honour said that the parties should approach the associate to Byrne J, who was then the Acting Senior Judge Administrator, to obtain an early date for the hearing of that application.
- On 27 February Mr Henderson filed his points of claim. On 6 March the respondents filed their points of defence. On the same day the respondents’ solicitors approached the associate to Byrne J, seeking a hearing date. On 8 March Mr Henderson filed yet a further interlocutory application, which was to have his contempt application placed on the callover list. This was made returnable on 22 March. Then on 9 March, the registry informed the respondents’ solicitors that the contempt application would be heard on 17 March, in the Applications List, and they then so informed Mr Henderson.
- So on 17 March, the respondents appeared before Mullins J to meet the contempt application. But Mr Henderson was not there, having advised the previous day that he could not attend for “personal reasons” before 24 March or in the week commencing 3 April (this was supported by a medical certificate). In the circumstances, the hearing of the contempt application was adjourned to 30 March (in the Applications List). Her Honour also adjourned to that date his application for a transfer to the Civil List.
The hearing before Holmes J
- When those matters came before Holmes J on 30 March, Mr Henderson sought a further adjournment of his contempt application, upon the basis that he was hoping to obtain more documents from the Queensland Police Service and also, as he put it, that he wished to cross examine “material witnesses on material facts”. He then went on to explain that he wished to call Ms Taylor and her solicitor as witnesses in his case.
- He had not been served with an affidavit of Ms Taylor. Affidavits by the solicitor had been served, although they simply exhibited correspondence. Counsel for the respondents argued that the appellant should not be permitted to simply call a witness and conduct something of an exploratory exercise in evidence in chief, to see if anything relevant and favourable emerged. Her Honour accepted that submission, and in my view, correctly. The proposed witnesses were Ms Taylor, who would not have been bound to answer Mr Henderson’s questions because of the privilege already mentioned, and her solicitor, who would have been bound by Ms Taylor’s legal professional privilege in relation to at least much of Mr Henderson’s intended inquiry. The exercise which he had in mind was therefore likely to be pointless, and if not, then unfair.
- Holmes J decided that Mr Henderson had been given a reasonable opportunity to be ready to present his case on that day and that he should not be allowed further time to try to obtain more from the police. Her Honour had regard to the importance of the expeditious determination of a case of this kind. And especially given his unsuccessful application to White J to obtain further documents from the Police Service, her Honour’s refusal to further adjourn the hearing did not involve an erroneous exercise of her discretion.
- Holmes J then proceeded to consider the affidavit evidence and after oral argument, her Honour delivered an ex tempore judgment dismissing the contempt application in its entirety.
The judgment of Holmes J
- Holmes J set out the first of the pleaded allegations of contempt which was in these terms:
“C. From 1 August 2005 to 1 December 2005 the first respondent acted in concert with the second respondent in contempt of the applicant’s Originating Application
PARTICULARS
The first respondent:
1.was served with a copy of the Applicant’s Originating application to this Honourable Court filed 1 August 2005
2.was aware that a Higher Court registry error meant that re-service on her of the originating application was imminent
3.knew that a stay applied on the applicant’s request for external review
4.in or about October 2005 instructed the second respondent to intermeddle with the stayed external review
5.the second respondent had not been previously involved in the external review
6.knew that the second respondent in common with her other delegates were disentitled to intermeddle in the stayed external review
7.did so to place improper pressure on the applicant as a party and as a witness in Originating Application 6205/2005
8.did so to pre-empt the Court’s paramount authority to decide the issues contained in the Originating Application
9.did so with actual knowledge the second respondent was a person enrolled as a legal practitioner
10.did so knowing that the second respondent was not the holder of a current practising certificate
11.was aware of the applicant’s divers (sic) requests to her between 1 August 2005 and 1 December 2005 for her to appoint a practising legal practitioner to avoid the need for personal service of the Originating application and the Applicant’s affidavit on her
12.refused to appoint a legal practitioner to facilitate initial service and re-service on her by the Applicant.
13.refused to file in the Court and serve a notice of address for service upon her until 6 December 2005.
14.was aware that in the absence of the appointment of a legal practitioner that re-service would be effected on her personally
15.was served on 1 December 2005 with an amended Originating application and the Applicant’ affidavit sworn 1 December 2005
16.was served lawfully
17.received a letter from the applicant 2 December 2005 outlining the circumstances of service
18.was served with an affidavit of service (other) sworn and filed by the applicant and served on her December 2005.”
- As Holmes J noted, that charge made no allegation against the second respondent, except indirectly by the allegation that the second respondent was instructed by Ms Taylor to “intermeddle with the stayed external review”. Holmes J also observed that this charge seemed “to be premised on the notion that the existence of the originating application constituted a stay of any further action by the first respondent”. I agree with Holmes J that this was plainly an incorrect premise. The existence of proceedings, commenced by the originating application, did not preclude Ms Taylor or anyone acting under her authority from continuing to conduct the review of the CMC’s response. By doing anything to continue that review, Ms Taylor was not interfering with the administration of justice. Her Honour correctly held that there was no case to answer on this first charge. On the hearing of this purported appeal, Mr Henderson effectively abandoned any case in this respect.
- The second of the pleaded allegations was in these terms:
“D. Between 1 December 2005 and 5 December 2005 alone and in concert with others acted in further contempt of Court in Application 6205 of 2005.
PARTICULARS
1. She sent a letter dated 5 December 2005 at 11.02 am by
facsimile to the applicant: wherein she:
- demonstrated that she was in breach of her duty and statutory duty to the Applicant
- Acted contrary to civil and criminal law
- Informed the applicant that she had implemented reprisal action against him
- Threatened the taking of future reprisal action including the laying of criminal charges against him.
- Applied improper pressure on the Applicant as a party and as a witness contrary to S.119B of the Queensland Criminal Code
2. By third parties she caused a malicious and untrue complaint
against the Applicant to be lodged with:
- Judith Spence, Minister for Police and Corrective Services
- To Robert Atkinson, Commissioner for Police
3. She did this via:
- Rodney Jon Welford
- Kenneth John Smith and
- Leonard Kelliher
4. She unlawfully disclosed to the QPS official confidential documents containing personal information about the Applicant which were in her official possession or control
5. She agitated for Commissioner Robert Atkinson to dispense with QPS published policy procedures for investigation and handling of Complaints
6. She caused the applicant to be harassed and intimidated at his private residence on the same evening after 9pm, upon the instruction of Commissioner Atkinson through:
- Shane Houghton of the Hendra Crime Investigation Branch of QPS
- Detective Jackman
- Detective Boorman
7. She received a feedback report from QPS concerning the Detectives attendance on the Applicant at his residence.”
- In essence this allegation was to the effect that the response by Ms Taylor to the attempt to serve her at her home was a wrongful interference with the course of justice. Her Honour found, as was uncontested, that Ms Taylor did send the letter of 5 December 2005 and did complain to police, and consequently police went to Mr Henderson’s home on 5 December. Her Honour then referred to his version that police had suggested to him that he should consider “acting contrary to the enjoyment of his lawful rights”. Her Honour was unpersuaded that any such suggestion by police should be attributed to Ms Taylor.
- After setting out the terms of the Ms Taylor’s letter of 5 December, Holmes J said:
“The letter is certainly heated. It says if the applicant attempts to attend the residence again in relation to any matter connected with the first respondent’s employment she will report him again to the Queensland Police Service and seek advice about possible charges.
Specifically in relation to the application in question, however, it contains the advice that no further action will be taken in respect of the review and that the first respondent will seek advice about having the matter struck out. Those matters are self-contained within the letter.
The body of the letter is clearly concerned with any attendance again at the premises. Her letter does not threaten any action against the applicant as a prospective witness. It does not in fact say anything about his being a witness. What it says might be a deterrent to his attempting to effect personal service. That of itself I think has no particular bearing on his capacity to conduct litigation. There were alternatives such as service at the office which had taken place or even, if Mr Henderson had a real concern about how service might be effected, the possibility of some form of order for substituted service. But nothing in the letter suggests any threat to the (appellant) as a party or witness and there is nothing in it which could have adversely affected his ability to conduct litigation.”
- Similarly, as to the complaint to police, her Honour said:
“Reporting his attendance at the house to the police might be perceived as a discouragement to him to attend there again. It does seem to me a somewhat nervous reaction but there is nothing in it which is designed to put pressure on him as a party or a witness, as opposed to as a prospective attender at the first respondent’s house. Again there is nothing to indicate that it was calculated to or did affect the (appellant) as a party or as a witness.”
- In my respectful opinion those conclusions were correct. The letter makes it clear that Ms Taylor’s objection was to his coming to her house, and said that he should prosecute his case without doing that again. As already mentioned, she waived the requirement for personal service of any further documents by saying that they could be left at her office. The demand that he stay away from her house could not have affected his ability to prosecute his case. Nor, contrary to his argument, should it have deterred him from being a witness. Her complaint to police had to be considered with her letter. With the terms of her letter, Mr Henderson should have understood the complaint to police to be that he went to her home. It can be inferred that Ms Taylor intended that complaint to be investigated and for police to speak to the appellant about it. But those events were not such as to be likely to interfere with the course of justice in his legal proceedings.
- The third complaint (apart from its particulars) was in these terms:
“E. On the 13 February 2006 and 16 February 2006 the first respondent in concert with others acted in contempt of the interlocutory Application which sought orders against them for contempt.”
The particulars referred to facsimile transmissions of 13 February and 16 February alleged to have been sent by Ms Taylor’s solicitors to Mr Henderson. A further particular claimed that the first and second respondents failed to disclose to White J on 17 February that those letters had been sent. The alleged terms of the letters were that threats were made to him that if he did not withdraw his contempt application there would be some “exposure of personal information held by the first and second respondents about (him) to the world at large.” On their face those particulars are concerning. However Mr Henderson’s difficulty was and is that he failed to tender either of the alleged letters. Moreover, he did not attempt to tender them upon this appeal. Accordingly, her Honour rightly held that there was no case to answer in this respect.
- The other allegation was in these terms:
“F.Between the 17 February 2006 and 22 February 2006 the respondents acted in further contempt of Court
PARTICULARS
- The respondents instructed Stephen James Dickens to brief Hedley Thomas Journalist with Queensland Newspapers Pty Ltd on matters which were sub-judice.
- In association with that briefing he placed confidential documents and the said unfiled documents and information about the Applicant in to the possession or control of the said Hedley Thomas.
- As a result of that briefing, on 23 February 2006 in reference to the sub-judice Applications Mr Thomas published an article demeaning the Applicant on page 1 of the Courier Mail newspaper containing assertions against the Applicant which were false, malicious misleading and untrue.”
- At the hearing before Holmes J, Mr Henderson tendered no evidence in support of this allegation. He did not tender the newspaper article referred to in the particulars. But he put the article before this Court. It does not at all appear that the publication of the article could have interfered with the course of justice. Undoubtedly the journalist’s source was Ms Taylor or her solicitors but the suggestion that there was some breach of a duty of confidence has no apparent basis. In any event, in the absence of evidence in support of this allegation, Holmes J rightly held that there was no case to answer.
- In summary, none of the allegations of contempt were established. The application filed on 9 January 2006 was therefore dismissed and the appellant was ordered to pay the respondents’ costs of that application to be assessed on the standard basis.
The purported appeal
- The principal point argued by Mr Henderson is that Holmes J should have adjourned the hearing so that he could gather further evidence.
- He says that he should have been given the opportunity of collecting further evidence from the Queensland Police Service. Not long ago, he obtained copies of some emails sent within the Police Service on or about 5 December 2005, in which police officers were reporting to each other on steps taken to investigate Ms Taylor’s complaint. Mr Henderson describes this material as a “smoking gun”. But that is not the case. The material is probative of no fact which was not already admitted or sufficiently established before Holmes J. As already discussed, Holmes J accepted that Ms Taylor complained to police to the effect of some invasion of her privacy, and the police spoke to the appellant about that complaint. Nothing more appears from these emails. Mr Henderson says that he would like to pursue further inquiries with the benefit of the emails. Yet he cannot point to some particular fact which he would hope to prove by that inquiry.
- Mr Henderson says that he was denied the prospect of obtaining evidence to support the charge that information had been improperly provided to the journalist resulting in the newspaper article of 23 February 2006. He now suggests that the “confidential documents” supplied to the journalist are in fact those letters of 13 and 16 February from Ms Taylor’s solicitors to him (the subject of the third contempt charge). But again, that cannot be assessed without the benefit of the letters, which for some reason he did not tender at the trial or on this appeal. Moreover, Mr Bradley for Ms Taylor was able to demonstrate that the correspondence which is quoted in the newspaper article was correspondence which was in evidence before Holmes J, such as her letter of 5 December. The position remains that Mr Henderson is still unable to substantiate his assertion that material was improperly provided to the journalist, or that Ms Taylor in some way caused the journalist to publish this article to the end of improperly deterring him from prosecuting either his principal claim or his contempt application.
- He complains about the steps taken to set the case down for hearing on 17 March (before Mullins J). There is no substance in this complaint. It is unnecessary to discuss in detail the events by which the Court advised of that date for hearing. He was made well aware of that date and of the subsequent date of 30 March.
- His argument also places strong emphasis upon his right as a litigant to attend to the personal service of his amended originating application, and that Ms Taylor’s response ought not to have been a complaint to police. As already discussed, the question was not whether it was reasonable for Ms Taylor to have complained to police. It was whether her conduct wrongly interfered with the course of justice, which it did not.
- Accordingly, if the appeal was competent then it should be dismissed upon the merits. But in any case, the respondent’s alternative argument, that the appeal is incompetent, should be accepted.
No right of appeal
- In Australian Building Construction Employees’ and Builders’ Labourers Federation v David Syme & Co Ltd (1982) 40 ALR 518, the Full Federal Court held that s 24 of the Federal Court of Australia Act 1976 (Cth) provided no right of appeal from an acquittal in proceedings for punishment for criminal contempt. Acquittal of such a charge after a hearing on the merits was held to be equivalent to acquittal in criminal proceedings. The contempt which had been alleged against the respondent newspaper proprietor was that it had wrongly interfered with the course of justice by certain publications. After a hearing on the merits, Northrop J found that the respondent had not been guilty of contempt of court. The applicants appealed, arguing that Northrop J was in error in that he should have punished the respondent for contempt and made further orders. In the judgment of the court (Bowen CJ, Evatt and Deane JJ), reference was made to the Full Court’s decision Thompson v Mastertouch TV Service Pty Ltd (1978) 19 ALR 547 that s 24 provided no right of appeal from an acquittal pronounced in criminal proceedings after a hearing on the merits. The court saw no ground for re-considering the correctness of Thompson and went on to hold that the same principle was applicable in the present context: a proceeding for punishment for a contempt constituted by conduct interfering with the course of justice.
- In Benson v Northern Ireland Road Transport Board [1942] AC 520 at 526, Viscount Simon LC described as “an extremely important and universally accepted principle of our law” that there should not ordinarily be any appeal from an acquittal made by a court of competent jurisdiction, and that clear and unambiguous words are needed to provide such a right of appeal. That this principle is part of the law of Australia is clear, for example, from Davern v Messel (1984) 155 CLR 21, where Thompson v Mastertouch was approved. Gibbs CJ there described the rule as follows[8]:
“[A] statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly. It is a rule to which it may be assumed the parliamentary draftsmen have had regard in framing legislation enacted since that time.”
- In Queensland the prevailing view is that an appeal lies against a conviction of contempt under what is now s 254 of the Supreme Court Act 1995 (Qld).[9] The challenge to the competency of the present appeal does not question that view. Instead it involves a rule of interpretation which applies only to appeals against acquittals. That rule has its basis in what Viscount Simon LC in Benson described as the right of a citizen, who has been acquitted of a charge, “not to be a second time vexed”.[10]
- The alleged contempt in this case is of the kind characterised as a criminal contempt, but the better view appears to be that all types of contempt of court are essentially criminal in nature. In Witham v Holloway (1995) 183 CLR 525, Brennan, Deane, Toohey and Gaudron JJ, in holding that any contempt must be proved to the criminal standard of proof, said:[11]
“[t]he differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt ‘must realistically be seen as criminal in nature.’”
In Australian Building Construction Employees, in the judgment of the Full Court at 521-522, it was concluded that a case of the present kind, an alleged contempt of court by wrongful interference with the course of justice, was relevantly criminal in nature so as to engage the principle that there should be no appeal from an acquittal. The reasoning is equally relevant to the present context and I respectfully adopt it. The jurisdiction to punish for contempt of court, and specifically a contempt involving an improper interference with the course of justice, derives from the common law. In Queensland that jurisdiction is expressly preserved by s 8 of the Criminal Code Act 1899 which provides:
“Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as ‘contempt of court’, but so that a person can not be so punished and also punished under the provisions of the Code for the same act or omission.”
Section 8 thereby confirms that contempt of court constitutes an offence, the source of which remains the common law notwithstanding the general codification of criminal law in this State.
- In relation to the present question, which is whether a proceeding for punishment for an alleged contempt of court should be regarded as criminal so as to preclude an appeal against a dismissal of the proceeding (absent a clearly expressed jurisdiction), the Court of Appeal in O'Shea v O'Shea and Parnell (1890) 15 PD 59 was asked to decide a purported appeal from an order refusing the issue of a writ of attachment in respect of an alleged criminal contempt. Lindley LJ there said (at 64)[12]:
“The offence of the appellant is certainly a criminal offence. I do not say that it is an indictable offence, but, whether indictable or not, it is a criminal offence, and it is an offence, and the only offence that I know of, which is punishable at common law by summary process.
As regards the authorities, no case has been cited which conflicts with the view which we take on this appeal … after the appeal had been heard and judgment given, the point occurred to me, and I said I was not satisfied that we had any jurisdiction to hear the appeal. I am now satisfied that we had no jurisdiction to hear it.”
- An appeal is not a common law remedy but a statutory right: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619. Section 254 of the Supreme Court Act 1995 (Qld) provides that an appeal lies to the Court of Appeal from every order made by a judge. But that is in general terms and makes no specific provision for an appeal against an order dismissing such a charge of contempt. Rights of appeal in criminal proceedings derive from Chapter 67 of the Criminal Code, but those provisions do not provide for an appeal against an acquittal of a criminal charge.
- It follows that this appeal is incompetent and irrespective of the merits, should be dismissed.
Other matters
- Two further matters must be considered. The first relates to the respondent’s unsuccessful application for security for costs of this incompetent appeal. That application was dismissed by a court constituted by Jerrard JA, Helman and Chesterman JJ[13]. The respondent did not then raise the incompetence of the appeal. The application was dismissed initially with costs in favour of Mr Henderson to be assessed on the standard basis. However he sought to argue that he should have costs on an indemnity basis. The utility in that application is not immediately apparent, because Mr Henderson is unrepresented. Nevertheless he was allowed seven days in which to file written submissions in support of that application. But he did not do so. He claimed that this was by some misunderstanding because of subsequent orders. It is unnecessary to explore the detail of that because, without objection, he was allowed to renew his application for indemnity costs. He has done so by filing further written submissions. There is nothing in them which indicates, let alone demonstrates, that he should have indemnity costs. The existing order should not be disturbed. In those written submissions Mr Henderson now seeks costs against Ms Taylor’s solicitors of that application for security. It is too late for him to make that application and in any case his submissions indicate no basis for it.
- The other question involves the reasons for judgment given by that Court. Jerrard JA at [5] referred to Mr Henderson’s having been a bankrupt between February 2001 and March 2004. That was relevant because the respondent, in applying for security for costs, was relying upon the bankruptcy as an indicator of impecuniosity. That was a proper argument and in turn Jerrard JA, not surprisingly, noted it. But Mr Henderson says that his Honour’s reference to his bankruptcy was unnecessary and that this Court should now make an order amending those reasons for judgment. As to this application, there is an obvious importance in the transparency of the Court’s work, and in a judgment recording the substance of the issues and arguments. Quite apart from whether it would be appropriate for this Court to make any order in relation to the judgment of that differently constituted Court, there is simply no substance in the complaint that the bankruptcy should not have been mentioned. It was plainly relevant. Moreover, it was and is already a matter of public record.
- The third matter is an application filed on 4 August 2006 by Mr Henderson that Jerrard JA, Helman and Chesterman JJ not sit in this appeal, apparently because of some concern from the application for security of costs (although their Honours determined that in his favour). In my view this application has no basis, but the application became irrelevant because; of course, the court for this appeal was differently constituted. I mention this only because since the hearing of the appeal, Mr Henderson for whatever reason has sought to have this application listed for a hearing.
Orders
- The appeal should be dismissed. The appellant should be ordered to pay the respondent’s costs of this appeal to be assessed on the standard basis. There should be no order varying the existing order that the respondent pay the appellant’s costs of the application for security for costs, on a standard basis. I would further order that the application, which was filed on 4 August 2006 be dismissed and that the respondent’s costs of it be part of her costs of the appeal.
Footnotes
[1] Pursuant to s 52 of the Freedom of Information Act 1992 (Qld).
[2] Pursuant to s 73 of that Act.
[3] Pursuant to s 101G of that Act.
[4] Pursuant to s 101C of that Act.
[5] Uniform Civil Procedure Rules r 14.
[6] Uniform Civil Procedure Rules r 166.
[7] Uniform Civil Procedure Rules rr 925, 926.
[8] (1984) 155 CLR 21 at 32.
[9] R v Foster and Ors; Ex parte Gillies [1937] St R Qd 67 (Webb and Henchman JJ, Blair CJ, diss.); R v Queensland Television Ltd; ex parte Attorney General [1983] 2 Qd R 648; cf. R v Lowrie [1998] 2 Qd R 579 at 581-584 per Davies JA.
[10] Benson v Northern Ireland Road Transport Board [1942] AC 520 at 527.
[11] (1995) 183 CLR 525 at 534.
[12] In a passage set out in Australian Building Construction Employees’ and Builders Labourers’ Federation v David Syme & Co Ltd (1982) 40 ALR 518 at 521.
[13] [2006] QCA 267.