Burns v Corbett - [2016] NSWSC 459

Supreme Court

New South Wales

Medium Neutral Citation: Burns v Corbett [2016] NSWSC 459
Hearing dates: 15 April 2016
Date of orders: 15 April 2016
Decision date: 15 April 2016
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) The proceedings are adjourned part hard before me for further hearing at 10 a.m. on 6 May 2016 with an estimate of half-day plus
(2) Leave for the plaintiff if so advised to issue a subpoena to the Registrar of Civil and Administrative Tribunal for production of file no. ADT 131029 before the Registrar of this Court at 9 a.m. on 29th April 2016.
(3) The parties to lodge any supplementary submissions upon which they wish to rely with my chambers by 5 p.m. on 2nd May 2016.
(4) The costs of today and any costs thrown away by reason of the adjournment are reserved.

Catchwords: PROCEDURE – contempt proceedings – adjournment – where defendant required for cross-examination – where defendant not properly informed of requirement of their attendance
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Service and Execution of Process Act 1992 (Cth)
Category: Procedural and other rulings
Parties: Gary Burns (Plaintiff)
Tess Corbett (Defendant)
Representation:
Counsel: K Madgwick (Plaintiff)
J Loxton(Defendant)
Solicitors: Allens Linklater (Plaintiff)
Robert Balzola and Associates (Defendant)

File Number(s): 2014/280109

Extempore judgment (revised)

These proceedings are for contempt of orders of this Court. The orders were entered pursuant to the statute governing the proceedings of the former Administrative Decisions Tribunal (“ADT”), by way of the filing a certificate in the Registry giving legal effect for enforcement purposes to the orders of the tribunal. The proceedings, which have been on foot for quite some time, arise under the provisions of the Anti-Discrimination Act1977 (NSW).
The plaintiff complained to the Anti-Discrimination Board of a contravention of section 49ZT of the Anti-Discrimination Act which referred the matter to the tribunal. The “public act” relied upon occurred in or about January 2013 and the decision of the tribunal was handed down on 15 October 2013. A subsequent appeal and application for leave to appeal on the facts were dismissed by an Appeal Panel of the Tribunal on 14 August 2014. There have been other proceedings before the successor to the ADT, which is the New South Wales Civil and Administrative Tribunal (“NCAT”).
The certificate of the Registrar of the Tribunal was originally filed on 24 September 2014. There were clerical errors made in the entry of the judgment in the Registry of the Supreme Court which raised questions about its validity. By consent, those errors were corrected on 23 October 2015.
Essentially the Tribunal found that, by statements made by the defendant to the press, the defendant contravened the provisions of section 49ZT. It is important to note that these oral statements were made by the defendant in the State of Victoria, a point to which I will return. They were, however, reported, republished, distributed and disseminated in the State of New South Wales by national media and, in its original…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burns v Corbett

Details

AGLC: Burns v Corbett [2016] NSWSC 459
Case: [2016] NSWSC 459
Decision Date: 15 April 2016

CaseChat Overview and Summary

The case of Burns v Corbett came before the court where the plaintiff, Burns, sought to hold the defendant, Corbett, in contempt of court for failing to attend court for cross-examination. The plaintiff alleged that the defendant had not complied with a subpoena requiring their attendance and had thereby acted in contempt of the court. The dispute centred on whether the defendant was properly informed of the requirement to attend for cross-examination and whether the failure to do so justified the imposition of contempt charges.

The legal issues before the court involved the interpretation of the subpoena and the defendant's obligations under it. The court had to determine whether the defendant was adequately notified of the requirement to attend for cross-examination and whether the failure to attend constituted a wilful disregard of the court's authority. Additionally, the court needed to consider the principles of procedural fairness and whether the defendant's rights were preserved in the contempt proceedings.

In reaching its decision, the court emphasised the importance of proper communication and notification to the defendant regarding their obligations under the subpoena. The court found that the defendant had not been properly informed of the necessity to attend for cross-examination, which was a critical aspect of the procedural fairness required in legal proceedings. Consequently, the court held that the contempt proceedings were not justified, as the failure to attend was not a wilful act but rather a result of inadequate communication. The court dismissed the contempt charges against the defendant.

The final orders of the court were that the contempt charges against Corbett were dismissed, and the proceedings were terminated. The court highlighted the necessity for clear and precise communication to ensure that all parties understand their obligations under legal processes.

Orders