Registrar of the Supreme Court v Wood [No 2]
[2024] QSC 91
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- Unreported Judgment
- Registrar of the Supreme Court v Wood [No 2][2024] QSC 91
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Registrar of the Supreme Court v Wood [No 2][2024] QSC 91
Registrar of the Supreme Court v Wood [No 2][2024] QSC 91
SUPREME COURT OF QUEENSLAND
CITATION: | The Registrar of the Supreme Court of Queensland v Wood (No 2) [2024] QSC 91 |
PARTIES: | THE REGISTRAR OF THE SUPREME COURT OF QUEENSLAND (applicant) v IAN ANDREW WOOD (respondent) |
FILE NO: | 15710 of 2023 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 17 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 May 2024 |
JUDGE: | Martin SJA |
ORDER: | The application is dismissed. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – GENERALLY – where an application has been brought that the respondent be punished for contempt committed in the face of the court – where the respondent applies for orders that the originating application be set aside, permanently stayed, struck out, or declared improperly started for want of jurisdiction, or that summary judgment be given – whether no real prospects of the originating application succeeding COURTS AND JUDGES – CONTEMPT – POWER OF COURT TO PUNISH FOR CONTEMPT – SUPREME COURT – where an application has been brought that the respondent be punished for contempt – where respondent argues that the matter was required to proceed to trial by indictment and the Supreme Court lacks jurisdiction to hear the contempt application – whether the Supreme Court has jurisdiction to hear the Registrar’s application for contempt Constitution of Queensland Act 2001 (Qld), s 58 Uniform Civil Procedure Rules 1999 (Qld), r 16, r 293 Attorney-General for New South Wales v Mundey [1972] 2 NSWLR 887, cited Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2012] QSC 211, cited R v Dunbabin; Ex parte Williams (1935) 53 CLR 434, cited R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208, cited Royalene Pty Ltd v Registrar of Titles [2007] QSC 59, cited |
COUNSEL: | M D Nicolson for the applicant The respondent appeared in person |
SOLICITORS: | G R Cooper, Crown Solicitor for the applicant The respondent appeared in person |
- [1]The applicant has applied for an order that Mr Wood be punished for contempt committed in the face of the court on 26 July 2023 and 2 August 2023 in hearings conducted by Burns J.
- [2]On the first day of the hearing, Mr Nicolson called Ms Steel and she was cross-examined on her affidavit. During the hearing of the application Mr Wood applied to have all the evidence of Ms Steel “struck out along with any testimony that she has given in relation to that evidence based on section 92 of the 1977 Queensland Evidence Act.”
- [3]In The Registrar of the Supreme Court of Queensland v Wood[1] I gave my reasons for rejecting Mr Wood’s submission that the evidence of Ms Steel be struck out. The applicant has (subject to Ms Steel being recalled) closed her case.
- [4]Mr Wood has applied for orders that:
- the originating application be set aside under r 16(e) of the Uniform Civil Procedure Rules 1999; or
- the originating application be permanently stayed under r 16(g) of the UCPR; or
- the originating application be set aside under r 16(i) of the UCPR; or
- there be summary judgment for the defendant under r 293 of the UCPR; or
- in the alternative, “that the proceedings be declared improperly started for want of jurisdiction under section 16(a) of the” UCPR.
- [5]This application is based upon a misunderstanding of:
- the onus borne by an applicant for orders that a person be punished for contempt committed in the face of the court; and
- the reasons I gave for the ruling I made on the admissibility of Ms Steel’s evidence.
The nature of the application – is this a “no case” application?
- [6]Mr Nicolson submitted that this application was, in effect, a “no case to answer” application. Mr Wood rejected that. But the orders sought and the arguments advanced by Mr Wood do fall within that general category. He pursued a line of argument to the effect that the Registrar had failed to prove what he said were essential requirements on a contempt application. It follows, then, that the proper approach is to take the Registrar’s evidence at its highest, to draw all inferences which are open on the evidence in favour of the Registrar and to determine whether the evidence is capable of proving the charge. But, for the reasons that follow, that approach is not strictly relevant. The misapprehension of the burden imposed on the Registrar means that Mr Wood’s application can be dealt with without resort to that approach.
- [7]In any event, an application to strike out or permanently stay a proceeding places a heavy burden on those who seek it. The Court must grant such relief only in the clearest of cases, akin to summary judgment where the Court must be satisfied that there are no real prospects of a claim succeeding.[2] The power of a court to dismiss proceedings as an abuse of process must also be exercised with extreme caution.[3]
Can summary judgment be obtained under r 293 UCPR?
- [8]As the proceeding was started by originating application and no order was made under r 14 UCPR that the proceeding continue as if started by claim, Mr Wood is unable to rely on r 293 to pursue summary judgment.[4]
Does this Court have jurisdiction to hear the Registrar’s application?
- [9]Mr Wood also argued, pursuant to an amendment to his application on the day of hearing, that there was no jurisdiction to hear the primary application. That is wrong. The Supreme Court of Queensland is a superior court of record[5] and is constituted as having unlimited jurisdiction.[6] It is part of the court’s inherent jurisdiction to punish a contemnor for contempt of court.[7] It was put this way by Latham CJ:
“… a further and most important attribute of a superior court is that it has power to punish for contempt of court. The power to punish for contempt has for many years been the distinguishing characteristic of a superior court.”[8]
- [10]The other source of jurisdiction and the procedural requirements for bringing contempt applications are found in Chapter 20, Part 7 of the UCPR.
Should the primary application have been commenced by indictment?
- [11]Mr Wood submitted that these proceedings should have been commenced by way of indictment. It followed, he said, that the application was not properly commenced and therefore an order could be made under r 16(a) of the UCPR.
- [12]The procedure by way of prosecution on indictment is obsolete. In order to bring proceedings for contempt an applicant invokes the Court’s summary procedure to punish contained in Chapter 20, Part 7 of the UCPR.
The bases of the application
- [13]In his written submission Mr Wood contended:
“The applicant has failed to prove any of the requisite elements as determined in the authorities on contempt including The King v Dunbabin ex parte Williams, Gallagher and Durack, and the Attorney-General for New South Wales v Mundey beyond a reasonable doubt which is the standard in contempt applications. This is compounded by the ruling of Justice Martin in the pre-trial hearing of this matter (QSC 21) (2024) in which he ruled in paragraph 20 [sic 10] that “the purpose of exhibiting the transcript and the audio recording is not to prove that what was said and recorded was true, but merely that it was said.”
- [14]Mr Wood referred, in some detail, to statements made in the cases referred to above. Most of his submissions were based on a misapprehension of the manner in which a contempt may be shown to have occurred. In this case, the Registrar relies upon words spoken by Mr Wood when he appeared before Burns J. The evidence relied upon (referred to in my earlier ruling)[9] tends to show that the statements alleged to have been contemptuous were made by Mr Wood. It is not, contrary to Mr Wood’s submission, necessary (or, for that matter, appropriate) to show the truth of those statements.
- [15]Mr Wood took me to a number of statements of high authority which are encapsulated in these remarks by Rich J in R v Dunbabin; Ex parte Williams:
“The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on a rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their dealings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose.”[10]
- [16]In the same decision, Dixon J (after expressing agreement with Rich J’s reasons) went on to say:
“It is important that Courts should be the subjects of free criticism. It is equally important that the dignity and authority of the Courts should be maintained.”[11]
- [17]
- [18]He then went on to argue that onus is on the applicant to prove the contemptuous act beyond a reasonable doubt. That is correct.
- [19]He also argued that the Registrar has to prove that:
- any imputations that were made do not constitute honest criticism; and
- that Burns J was likely to be deterred from administering justice according to law.
- [20]There is a difference between establishing a fact through the giving or adducing of evidence and establishing, through argument, a possible consequence of proved facts. In this case the Registrar contends that the use of the words, by themselves, constitutes a contempt. She also contends that a consequence of using those words was that there was a real tendency to interfere with the administration of justice and that their use gave rise to a real risk of undermining public confidence. When those consequences are demonstrated, then the right of a litigant or another member of the public to criticise a court or a judge is qualified as Hope JA made clear in Mundey:
“The cases seem to establish two such qualifications. In the first place, criticism will constitute contempt if it is merely scurrilous abuse. … In the second place, the criticism may constitute contempt if it ‘excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office’ … it may and generally will constitute contempt to make unjustified allegations that a judge has been affected by some personal bias against a party, or has acted mala fide, or has failed to act with the impartiality required of the judicial office.”[14]
- [21]Mr Wood went on to argue that the Registrar had failed to prove a number of other matters but each of them related to findings that certain consequences might have been the result of the statements he made. Those are matters which will be the subject of argument at the end of this hearing.
Conclusion
- [22]It does not matter whether this should be categorised as a “no case” submission or an application confined to the orders sought by Mr Wood. If it is a “no case” submission then I am satisfied that the evidence, taken at its highest, is capable of proving the allegation of contempt. If it is simply a case of seeking a permanent stay or a strike out, then I am satisfied that Mr Wood has not demonstrated that there are no real prospects of the claim succeeding.
- [23]The application is dismissed.
Footnotes
[1] [2024] QSC 21.
[2] Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2012] QSC 211 at [53]; Royalene Pty Ltd v Registrar of Titles [2007] QSC 59 at [6].
[3] Walton v Gardiner (1993) 177 CLR 378 at 392-3.
[4] Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2012] QSC 211 at [53].
[5] Constitution of Queensland Act 2001, s 58(2)(a).
[6] Constitution of Queensland Act 2001, s 58(1).
[7] R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442.
[8] R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 at 241.
[9] [2024] QSC 21.
[10] (1935) 53 CLR 434 at 442.
[11] At 448.
[12] (1983) 152 CLR 238.
[13] [1972] 2 NSWLR 887.
[14] At 910-911.