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)

1. 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).

2. 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”).

3. 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.

4. 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 first instance decision, the Tribunal found that that further publication in NSW was the relevant public act for the purpose of section 49ZT, finding that it had jurisdiction because of that consideration.

5. The Tribunal ordered the defendant to publish an apology for the breach of the legislation in the Sydney Morning Herald at her own expense, and to write a letter to the plaintiff apologising to him personally for the conduct.

6. Following the correction of the judgment in this Court, the time for compliance with the Tribunal's orders, now the judgment of this Court, was extended to 13 November 2015.

7. On the evidence read before me today, which is not disputed or contradicted, the plaintiff failed to comply with the orders within the time permitted and has continued to fail to comply with them, and that omission on her part constitutes the case of contempt brought against her.

8. The defendant defends the case on legal grounds. Essentially she argues that there can be no contempt in failing to comply with the orders of the Tribunal because those orders are invalid. The first ground of invalidity relied upon is that the service of the documentation initiating proceedings before the Tribunal was not affected in compliance with the Service and Execution of Process Act 1992 (Cth).

9. The second ground of invalidity is put in two ways: The first is that, as a matter of interpretation, section 49ZT applies only to public acts performed in New South Wales, and the facts as found by the Tribunal were necessarily outside the meaning of the statute.

10. The alternative way it is put is that the commission of a public act in New South Wales is a jurisdictional question of fact that this Court can determine for itself. It is argued that on the material any public act of the defendant in contravention of section 49ZT necessarily occurred in the State of Victoria. Accordingly, so the argument runs, the Tribunal's order is invalid. That being so, the defendant is entitled to have the judgment of this Court giving legal effect to it set aside ex debito justitiae and she cannot be guilty of contempt.

11. As I understand how the defence is put, the second asserted ground of invalidity can be dealt with on the basis of the judgment or reasons of the Tribunal at first instance.

12. However, so far as the question of the effect of any noncompliance with the Commonwealth legislation is concerned, Mr Loxton of counsel, who appears for the defendant, wishes to rely upon an affidavit of the plaintiff sworn on 18 March 2016 in which she acknowledges receiving a bundle of documents from the Registrar of the Tribunal but says those documents did not contain the relevant form, said to be Form 4, under the Commonwealth legislation.

13. There is an issue in the case about who carries the onus of proof in that regard which I need not decide or further refer to now.

14. When the defendant’s affidavit of 1 March was served, notice was given by the plaintiff by letter of 30 March 2015 that the defendant was required for cross-examination. When Mr Loxton read the affidavit in his case Ms Madgwick of counsel, who appears for the plaintiff, objected to its admission into evidence unless and until the defendant attends for cross-examination.

15. There had been some earlier discussion today about the fact that the defendant was in Victoria but that she could be contacted by telephone. Ms Madgwick made it clear that she objected to her giving evidence by telephone and no application in that regard was further pursued by Mr Loxton.

16. Mr Loxton has now applied for an adjournment to enable the defendant to attend in person to be cross-examined on her affidavit. The explanation for her failure to appear today is two-fold: First, Mr Balzola, the defendant's solicitor, takes full responsibility for not having properly read the letter from the plaintiff’s solicitors. He apparently failed to appreciate that his client was required for cross-examination on the affidavit. He did forward to her the letter which also dealt with other matters, apparently - it has not been tendered and it is not necessary that it be tendered - but she did not, under her own steam, decide that she should attend Sydney today for the purpose of being cross-examined. Understandably the plaintiff opposes this application for an adjournment and, if it is granted, seeks costs.

17. In an ordinary civil case I would not regard the application on the grounds on which it has been made as being imbued with self-evident merit. However, I bear in mind that, although proceedings for contempt of this type are regarded as civil proceedings, they are inescapably in the nature of criminal proceedings as if the defendant is convicted, she will be liable to a penalty. The motion seeks, for instance, punishment by way of the imposition of a fine.

18. Given that the consequences of a finding of contempt of court can be serious for an individual, and having regard to their criminal-like nature, I am of the view that the defendant ought to be given another opportunity to attend court and give evidence in her own defence and I will grant the adjournment for that reason.

19. The application for costs is a strong one. However, given the misunderstanding between solicitor and client, I am of the view that I should reserve costs until the defendant attends to give evidence and is given an opportunity of offering her own explanation, if she wishes to do so, for her non-attendance today. I repeat, the merit of the plaintiff's application is obvious but for the single reason expressed I will reserve the question of costs

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Decision last updated: 18 April 2016