R v Wood[2023] QCA 153

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  Mr Wood was charged on District Court indictment number 469 of 2020 with one count of assault occasioning bodily harm.  Contemporaneously with the events that resulted in the charge, Mr Wood was on the telephone to an employee of Energex Limited regarding an issue with power supply.  Mr Wood applied to Energex through a Right to Information request for a copy of the recording of the telephone call.  The recording that was supplied had been edited to remove the 74 seconds of audio which captured the assault.  Eventually Energex provided a second copy where the 74 seconds had been added back into the audio but Mr Wood was dissatisfied that it had been added back into the correct order of the call.  On 11 March 2021, the Director of Public Prosecutions (DPP) at Mr Wood’s request issued a subpoena to the manager of Energex to produce to the Court the full recording made on 18 August 2018 of the relevant phone call, including the full metadata of the call record.  Energex sought to comply with the subpoena by its employee Ms Guest preparing a certificate pursuant to s 95 of the Evidence Act 1977 (Qld).
2. [2]
   At a review of the criminal proceeding before his Honour Judge Smith on 8 April 2021, Mr Wood sought an order to be allowed to copy the material provided by Energex in response to the subpoena.  The DPP had a draft order for that purpose and the order allowing him to inspect and copy the subpoenaed documents was made on 8 April 2021.
3. [3]
   There was a further review before Judge Smith on 9 April 2021 when Mr Wood informed the Court that having viewed the s 95 certificate and the subpoena that his submission was that what was supplied did not meet the criteria of the subpoena.  Mr Wood requested Judge Smith to make an order under s 30(5)(d) of the Criminal Practice Rules 1999 (Qld) that the material be brought by the proper officer to be viewed in court and should it not be the metadata that was required by the subpoena, the proper officer from Energex and an IT specialist from Energex should be brought in to explain why Energex was failing to comply with the subpoena.  Judge Smith adjourned that application to the date fixed for hearing s 590AA applications in the matter.  That was not an application for punishment for contempt but an application to pursue the information that had been sought by the subpoena and was properly the subject of an application under s 590AA of the Criminal Code (Qld).  His Honour indicated to the DPP that the relevant persons from Energex should be present in court on the date for the s 590AA hearing.  His Honour indicated that he was not prepared to deal with Mr Wood’s application without submissions, without material and without hearing from Energex.  It was the intent of Judge Smith that the DPP would have the relevant officers of Energex in court on the date of the pre-trial hearing to explain whether they had complied with the subpoena or not.
4. [4]
   A pre-trial hearing was listed before the learned primary judge on 13 May 2021 at which Mr Wood was self-represented.  Mr Wood had filed submissions in the criminal proceeding dated 19 April 2021 in which he sought an order “against the persons involved in failing to comply with the subpoena finding them in contempt under section 925(1)(a) of the UCPR”.  Instead of the written submissions being in support of the application that Mr Wood had made before Judge Smith to pursue the further information sought by the subpoena by having the opportunity to question the Energex officers, Mr Wood’s application in the written submission was based on his conclusion that Energex had failed to comply with the subpoena.  Consistent with the statement in the written submissions as to the finding of contempt Mr Wood was seeking, the primary judge treated the relief sought in the written submissions as an oral application by Mr Wood for Ms Guest to be punished for contempt on the basis that Ms Guest had prepared the s 95 certificate.  A solicitor, Mr Heath from Carter Newell Lawyers, appeared on that application on behalf of Ms Guest.  Both Ms Guest and an IT specialist from Energex, Mr Hegarty, attended at the court on 13 May 2021.  Ms Guest had been subpoenaed to attend by the DPP for the purpose of the pre-trial hearing.
5. [5]
   During the hearing before the primary judge, Mr Wood clarified his view that he was incorrect in making the application under the Uniform Civil Procedure Rules 1999 (Qld) and was proceeding instead under s 129 of the District Court of Queensland Act 1967 (Qld) (the Act).  The primary judge endeavoured to explain to Mr Wood the proper procedure to be followed when pursuing a charge of contempt against a person was that Ms Guest was entitled to have precise details of the alleged contempt and evidence of what she had not produced which Mr Wood said existed or should have been produced.  In response, Mr Wood informed the primary judge that he was not pursuing a criminal charge of contempt.
6. [6]
   The primary judge took the view that there was no evidence from Mr Wood that showed that the full metadata had not been provided and refused to allow Mr Wood to cross-examine Mr Hegarty and/or Ms Guest on the basis that the primary judge was not satisfied that there was any further evidence to be produced by Energex on the subpoena and the application for the production of further evidence was dismissed.  Even though Mr Wood, in effect, abandoned his application for the punishment for Ms Guest for contempt, the primary judge made a formal order dismissing the application on the basis that “it was entirely misconceived, at least in the manner of which it had been brought, without any … relevant evidence or any evidence at all”.
7. [7]
   There was no appeal by Mr Wood against the primary judge’s dismissal of Mr Wood’s application that Ms Guest be punished for contempt.
8. [8]
   Mr Heath on behalf of Ms Guest applied for an order for costs for responding to the contempt application.  The primary judge made an order in the following terms:

“The defendant pay Ms Guest’s costs of the application for punishment for contempt to be assessed if not agreed on the District Court scale for costs for civil matters under $50,000.”

9. [9]
   The terms of the order accorded with the submission made by Mr Heath that, if assessed costs were ordered, it should be on the basis of the District Court scale for matters involving amounts under $50,000.  When the primary judge queried whether there was such a scale, Mr Heath responded affirmatively.
10. [10]
    The criminal trial on the indictment proceeded on 7 June 2021 and ultimately there was a hung jury.  A new trial commenced on 27 September 2021 when again there was a hung jury.  The prosecution on 7 October 2021 entered a nolle prosequi in respect of the charge on the indictment and Mr Wood was discharged from further proceedings on that indictment.
11. [11]
    Mr Wood had not sought leave to appeal against the costs order made on 13 May 2021 before Ms Guest made an application on 5 November 2021 to the primary judge to amend the order made on 13 May 2021 by deleting the words “under $50,000”.  Mr Heath had ascertained subsequent to the making of the order on 13 May 2021 that the District Court no longer had a civil scale for matters under $50,000.
12. [12]
    On 1 December 2021, Mr Wood applied for leave to appeal against the judgment given on 5 November 2021 which referred to the original hearing on 13 May 2021 and described the appeal as being “against the costs order” made by the primary judge in relation to Ms Guest “who was supplied by the prosecution in response to a 590AA application for evidence”.  It is apparent from the grounds of appeal in the application for leave to appeal and the written submissions filed by Mr Wood that Mr Wood is seeking leave to appeal against both the original order for costs made on 13 May 2021 and the amending order made on 5 November 2021.  Mr Wood has not made an application for extension of time to appeal against the costs order made on 13 May 2021.
13. [13]
    Appeals from orders made in the District Court, apart from an appeal from a judgment of the District Court in the exercise of its criminal jurisdiction under part 4 of the Act, are dealt with by part 9 of the Act.  Even though Mr Wood’s application for punishment of Ms Guest for contempt arose in connection with the exercise by the District Court of its criminal jurisdiction under part 4 of the Act, the application for punishment for contempt is a separate proceeding and any appeal in connection with that proceeding is governed by part 9 of the Act.  Pursuant to s 118(3) of the Act, leave to appeal is required.
14. [14]
    The jurisdiction of a District Court judge to deal with contempt is set out in s 129 of the Act.  The procedure set out in part 7 of chapter 20 of the UCPR is apt to be adapted for use in an application for contempt that arises in connection with a criminal proceeding in the District Court.  Rule 932 of the UCPR provides that the costs of a proceeding for punishment for contempt are within the Court’s discretion whether a specific punishment is imposed or not.  Even though the application for punishment for contempt was dismissed by the primary judge, the fact that an application was brought by Mr Wood gave the District Court jurisdiction to deal with an application for a costs order by the respondent to the contempt application.
15. [15]
    By letter dated 21 July 2022, the solicitors for Ms Guest informed the Court that neither Ms Guest nor Energex would be seeking to enforce the costs order against Mr Wood.  That affects the practical utility of Mr Wood’s pursuit of his application for leave to appeal.
16. [16]
    Even apart from Mr Wood’s failure to apply for an extension of time for leave to appeal against the costs order made on 13 May 2021, there is a fundamental impediment to the application for leave to appeal proceeding.  Section 118B of the Act applies to the extent the application for leave to appeal is in relation to orders for costs.  The appeal against an order that is solely for costs can proceed in this Court only with the leave of the judge who gave the judgment or made the order for costs or, if that judge is not available, with the leave of another District Court judge.  The purpose of a like provision applying to an appeal solely in relation to an order for costs made by a judge of the Supreme Court was explained in ASIC v Jorgensen [2009] QCA 20 at [29].  Even though Mr Wood’s application for leave to appeal is at the stage of being an application for leave to appeal and not an appeal, the application for leave to appeal should not proceed without the leave to appeal having been sought from the primary judge.  Although a distinction was drawn by Peter Lyons J in the use of the word “appeal” rather than an “application for leave to appeal” in s 118B of the Act in State of Queensland v Munro [2014] QCA 231 at [60]-[63], the failure of Mr Wood to seek the leave of the primary judge to appeal against the costs order is sufficient to justify the application for leave to appeal being struck out as incompetent.
17. [17]
    Ms Guest was represented by King’s Counsel on this application.  The point was made in the submissions on her behalf that the application for leave to appeal was invalid for failure to comply with s 118B of the Act.  In all the circumstances pertaining to this matter, the discretion to deal with costs in relation to a patently invalid application should be exercised so that there is no order as to costs.
18. [18]
    The orders are:

1. Application for leave to appeal struck out.
2. No order as to costs.