Budgen v Van Gray
[1989] TASSC 76
•21 December 1989
Serial No 76/1989
List "A"
CITATION: Budgen v Van Gray [1989] TASSC 76; (1989) Tas R 303; A76/1989
PARTIES: BUDGEN
v
VAN GRAY, Adam
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 113/1989
DELIVERED ON: 21 December 1989
JUDGMENT OF: Cox J
Judgment Number: A76/1989
Number of paragraphs: 14
Serial No 76/1989
List "A"
File No LCA 113/1989
BUDGEN v ADAM VAN GRAY and ANOR
REASONS FOR JUDGMENT COX J
21 December 1989
The applicant secured a judgment in the Court of Requests held at Hobart on the 1 February 1989 against the respondents in the sum of $3,986.10 inclusive of taxed costs. On the 14 April 1989 a judgment summons pursuant to the Debtors Act 1870 was issued against each of them requiring their attendance at the court on the 10 July 1989 to be examined on oath touching the means each had of paying the judgment debt. The judgment summons was served on each in ample time, but on the return date neither respondent attended and each was fined $20 pursuant to s5 of the Debtors Act 1888. The summons was on that date adjourned sine die and subsequently a notice of adjourned hearing was issued and served upon each respondent requiring their attendance on the 14 August 1989. On that date neither again attended in answer to the adjourned summons, but prior to that date each had paid the $20 fine imposed on the original hearing date set out in the judgment summons. On the occasion of the adjourned hearing the solicitor for the applicant declined to seek an order imposing a further fine under the Debtors Act 1888 but indicated that he would seek to punish both respondents for contempt of court pursuant to r23 of the Debtors Rules (RSC Part II).
There is no set procedure laid down under the Debtors Acts 1870 and 1888 or the Local Courts Act 1896 for taking such a course and the applicant accordingly relied upon the last mentioned Act, s138, and adopted the procedures laid down by O73, r2, namely a notice of motion returnable before the Court of Requests at Hobart on the 9 October 1989. The respondents were given notice of this appointment but again failed to attend. On the hearing of the motion the learned Commissioner ruled that he had no jurisdiction to hear it and that even assuming that he had such power it was not competent for him to impose any other punishment than the $20 fine provided for by the Debtors Act 1888 s5. He therefore dismissed the motion.
The applicant appealed to this Court purportedly pursuant to s 123 of the Local Courts Act 1896, but as for the purposes of proceedings under the Debtors Act he is not in my view a "party to an action" brought in the Court of Requests and as the court‘s powers should the appeal succeed to "order a new trial" or to "order judgment to be entered for either party" do not seem appropriate to achieve the result the applicant seeks, namely of punishing the judgment debtors for their failure to attend for examination with some more effective penalty than a $20 fine, I gave him leave to amend his notice of appeal to seek an order under s127 that the learned Commissioner show cause why he should not exercise the jurisdiction he held he did not possess. As this seemed an appropriate course (White v Union Trustee Company of Australia Ltd. (1909) 9 NSWSR 253) I made such an order and had the benefit on the return thereof of argument from Mr Stoddart on behalf of the learned Commissioner. The judgment debtors were also given notice of the return date but did not appear.
The Debtors Act 1870 by s4(1) permits a court in certain circumstances to commit to prison for six weeks or until the debt be sooner paid a judgment debtor who is proved to have had the means of satisfying the judgment debt. Subsection (2) thereof provides that proof of the means of the person making default may be given in such manner as the court thinks just and for the purposes of such proof the debtor and any witness may be summoned and examined on oath according to the prescribed rules. By s8 the term "prescribed" means prescribed by General Rules to be made by the judges. The first set of Debtors Rules prepared and promulgated in Tasmania were gazetted on the 14 February 1871. In addition to providing for the issue of a judgment summons which in form summoned the judgment debtor to attend for examination on oath touching his means they provided that any witness might be summoned to prove the means of the judgment debtor in the same manner as witnesses were summoned to give evidence upon the hearing of a plaint "under the Small Debts Act" . The Rules did not provide for any sanction for non–attendance by the judgment debtor or any other witness, but the Small Debts Act did provide for a fine of up to $20 to be imposed on a witness duly summoned who failed to attend and provided for the party calling him to be indemnified thereout in respect of costs.
By the Debtors Act 1888, s5 provided:—
"5 – Any debtor or other person summoned under the provisions of the Principal Act for the purpose of being examined as to the means of such debtor to pay the sum in respect of which he has made default, and who refuses or neglects, without sufficient cause, to attend and be examined before the court, or judge, or commissioner, or chairman before whom he is summoned to appear for the purpose aforesaid, or who refuses to produce before such court, or judge, or commissioner, or chairman, any books, papers, or writings which he has been required to produce as aforesaid, shall be liable to such penalty not exceeding $20 as such court, or judge, or commissioner, or chairman shall impose upon him; and such court, or judge, or commissioner, or chairman may commit to prison as for contempt of court for one month any debtor or other person who shall have been ordered to pay any such penalty as aforesaid and who shall make default in payment thereof; and the whole or any part of such penalty, in the discretion of the court, or judge, or commissioner, or chairman, after deducting the costs, shall be applicable towards indemnifying the party injured by such refusal or neglect, and the payment of such fine may be enforced in the same manner as money ordered to be paid by such court, or judge, or commissioner, or chairman."
In 1932 new Debtors Rules were enacted as Part II of the Rules in the second Schedule of the Supreme Court Civil Procedure Act. Initially confined to proceedings held in the Supreme Court, they were extended to all courts by the Statute Law Revision Act 1934 and the term "judge" extended to include the commissioner of a court of requests. The provisions relating to the formal issue of judgment summonses were in substance repeated, provision was made for the summoning of witnesses to prove means and r 23 provided as follows:–
"23–(1) A judgment debtor summoned by a judgment summons to attend before a judge for the purpose of being examined touching his means shall be bound to attend for that purpose at the time and place appointed in that behalf by the judgment summons, and it shall not be necessary to serve on the judgment debtor any further or other summons for that purpose.
(2) Any judgment debtor duly served with a judgment summons who fails without sufficient cause to attend before the judge pursuant to the judgment summons shall be guilty of a contempt of court, and shall be punishable accordingly."
It was suggested at the hearing before the learned Commissioner that there was some conflict or inconsistency between this Rule and the remedy given by s5 of the Debtors Act 1888. There is however none in my view. They are simply alternative remedies which are designed to suit the exigencies of any given situation. The Local Courts Act 1896 provides, by s59, for the imposition of a similar fine upon a defaulting witness. The Evidence Act 1910, s 92, provides for attachment for disobedience of the summons and the issue of a warrant to bring the defaulter before the court to give evidence on the trial of any case, civil or criminal. These powers are given to "every court of the State of whatsoever jurisdiction" (s.3 ibid.) and such court on the return of the rule or order nisi "may deal with the case as the Supreme Court might and would have done upon a rule to the like effect issued out of that court" (s.93(2) ibid.). These provisions for dealing with contempt by way of failing to attend upon a criminal trial are available, notwithstanding the existence of another remedy in the Justices Act 1959 s 42 and its predecessor the Justices Procedure Act 1919 s 52.
Mr Green, counsel for the applicant, argued that s5 of the Debtors Act 1888 applied only where the judgment debtor or other witness failed to obey a summons to witness and did not apply where no such summons having been served on the judgment debtor the disobedience was only to the judgment summons itself. Reliance was placed upon two Victorian cases — In re Walker; Hickman v Walker (1900) 26 VLR 465 and Caldercott v Cunningham (1908) VLR 38. But both these cases merely established that where a summons to witness under the Victorian Justices Act 1890 was served upon the judgment debtor in addition to a judgment summons under the Imprisonment of Fraudulent Debtors Act 1890 the court had power to impose the fine provided for in the former Act in the event that the witness failed without proper excuse to attend. It does not appear that under the latter Act there was any equivalent of s5 of the Debtors Act 1888. That section is unequivocal and on its plain construction would apply to a judgment debtor who failed to obey the judgment summons whether or not he was also served with a summons to witness under the principal Act.
Mr Stoddart argued that r 23 would be ultra vires if it purported to confer any power to punish for contempt of court beyond that which the Debtors Acts themselves gave. The power to "punish accordingly" must he submitted refer back to the enabling Act which in effect limited the power of punishment to that given by s5 of the 1888 Act, He referred to r v Metal Trades Employers Association Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 where the High Court held that the giving of specific powers of punishment for contempt to the Arbitration Court prevented it from inferring an intention on the part of Parliament to grant the general powers of punishing for contempt inherent in a superior court of record at common law from another provision in the same Act that the Arbitration Court should be a "superior court of record". r23 would however be quite otiose if it gave no greater power of punishing for contempt than exists by virtue of s5 of the Debtors Act 1888 and it came into force as I have said as part of a Schedule to the Supreme Court Civil Procedure Act 1932, not as subordinate legislation per se. It has effect in my view to give to the court before which the judgment debtor has failed to appear jurisdiction to punish for contempt exercising such powers as are possessed by that court.
Thus the learned Commissioner had jurisdiction under r 23 of the Debtors Rules to punish the respondents for contempt of court and there being a gap in the procedural provisions for bringing the matter before the Court of Requests the proper course was, in reliance upon s138(2) of the Local Courts Act 1896, to use the procedure set out in the Supreme Court Rules, namely O72, r2 (Mason v Guiler [1959] Tas SR 152; ANZ Banking Group Ltd v Dixon, Crawford J, 789). At the hearing before the learned Commissioner there was some discussion about s18 of the Local Courts Act 1896, but that section has no relevance to this case where there is an express rule (r 23) granting the Commissioner jurisdiction to deal with contempt of court. s 18 was of relevance in Mason v Guiler (supra) because it was the source of the Commissioner's interlocutory powers to give directions appropriate to third party proceedings. In the present case the motion was made to the Commissioner sitting in open court.
The learned Commissioner also it would seem declined to exercise jurisdiction in respect of contempt of court on the basis that the Court of Requests, being a court of limited jurisdiction, did not possess the unlimited (save in the sense of being limited to the proper exercise of judicial discretion) powers of punishment of the Supreme Court. It may be arguable that the Court of Requests has the same powers as the Supreme Court as it is given a power to punish for contempt without a limitation being placed upon the extent of those powers by the Debtors Rules (cf. the powers of any inferior court to deal with witnesses who disobey a subpoena or a summons given by the Evidence Act 1910 s93(2) to which I have already referred although they are expressed powers). But I think the better view is that s140 of the Local Courts Act 1896 deals with the limits of the powers of punishment for contempt in the Court of Requests. That section reads as follows:—
"140 If any person wilfully insults any commissioner, or any justice, or any juror, or any registrar, bailiff, or officer of a court for the time being sitting or attending in court, or in the performance of his duty, or in going to or returning from the court, or wilfully interrupts the proceedings of the court, or otherwise misbehaves in court, he shall be liable for contempt of court, and it shall be lawful for any bailiff or officer of the court, with or without the assistance of any other person, by the order of the court, to take such offender into custody, and detain him until the rising of the court; and the court or commissioner is hereby empowered, if it or he thinks fit, by a warrant under the hand of the registrar, reciting generally the grounds of committal without showing the particulars thereof or the jurisdiction, to commit any such offender to any gaol for 7 days, or to impose upon any such offender a fine not exceeding $10 for every such offence, and in default of payment thereof to commit the offender any gaol for 7 days unless the said fine be sooner paid."
Upon one construction the liability to the penalties therein set forth of "such offender" is limited to an offender who commits one of the contempts in the face of the court specified in that section. On the other hand the term "such offender" is capable of being construed as any person who becomes liable for contempt of court, whether in the face of the court or by virtue of some other activity constituted a contempt of the court by the Local Courts Act 1896 (eg ss55 or 139) or by some other statute or rule (eg the Debtors Rules). The precursor for the section was s137 of the Small Debts Act 1887 which provided as follows:—
"137 In a Court held under this Act before a Commissioner or Justices, if any person wilfully insults such Commissioner or any such Justice, or any Juror, or any Registrar, Bailiff, or Officer of the said Court for the time being during his sitting or attendance in Court, or in going to or returning from the Court, or wilfully interrupts the proceedings of the Court, or otherwise misbehaves in Court, it shall be lawful for any Bailiff or Officer of the Court, with or without the assistance of any other person, by the order of the Court, to take such offender into custody, and detain him until the rising of the Court; and the Court is hereby empowered, if it thinks fit, by a warrant under the hand of the Registrar, reciting generally the grounds of Committal without showing the particulars thereof or the jurisdiction, to commit any such offender to any Gaol or House of Correction for any time not exceeding Seven days, or to impose upon any such offender a Fine not exceeding Five Pounds for every such offence, and in default of payment thereof to commit the offender to any Gaol or House of Correction for any time not exceeding Seven days unless the said Fine be sooner paid."
The expression "such offender" in that section clearly referred to an offender guilty of the conduct thereby proscribed and if that were the only conduct of a contemptuous nature which the section sought to punish in the manner therein set forth the insertion of the words in the 1896 Act "he shall be liable for contempt of court" would add nothing to the section which otherwise remains substantially the same. However, the 1896 Act for the first time proscribed as contempt of court the acts or omissions in ss. 55 and 139 thereof without providing any specific remedy and the insertion of those words "he shall be liable for contempt of court" had the effect in my view of altering the availability of the powers of punishment set forth in s140 to all forms of conduct declared by the Local Courts Act 1896 to be contempt of court. It would be anomalous to confine them to contempt in the face of the court and provide no remedy for those other contempts. Accordingly I am of the view that the Court of Requests has at least the powers of punishment for contempt of court set out in s140 .
The application is granted and I order that the learned Commissioner hear and determine the motion according to law.
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