Cromwell Property Securities Limited v Financial Ombudsman Service Limited

[2015] HCATrans 24

[2015] HCATrans 024

Office of the Registry
  Melbourne  No M118 of 2014

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

and

GROCON CONSTRUCTORS (VICTORIA) PTY LTD (ABN 98 148 006 624)

First Respondent

GROCON (FCAD) PTY LTD (ACN 143 621 514)

Second Respondent

GROCON CONSTRUCTORS (VIC) PTY LTD (ABN 88 127 996 436)

Third Respondent

ATTORNEY‑GENERAL FOR THE STATE OF VICTORIA

Fourth Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2015, AT 11.06 AM

Copyright in the High Court of Australia

____________________

MR P.J. MORRISSEY, SC:   May it please the Court, I appear for the applicant, and I appear with MR G.J. BOAS and MS J.D. WATSON.  (instructed by Slater & Gordon Lawyers)

MR P.J. WHEELAHAN:   May it please the Court, I appear with MS R.M. NELSON for the first to third respondents.  (instructed by Herbert Smith Freehills)

MR J.B. DAVIS:   May it please the Court, I appear for the fourth respondent, the Attorney‑General, with MR B.W. JELLIS.  (instructed by Victorian Government Solicitor)

HAYNE J:   Now, we will go then to the Grocon aspect of the matter, but if counsel in the Boral aspect of the matter wish to retire, they may if they wish, but they may remain if they wish.  Mr Morrissey, you seek leave to raise what is essentially a pleading point, do you not?

MR MORRISSEY:   We seek to characterise it as larger than pleading, but we acknowledge that it was so characterised by the Court of Appeal.

HAYNE J:   What is the substantive issue that you seek to raise in saying that if contumacy is alleged it must be positively pleaded?

MR MORRISSEY:   It is an accident of the accusatorial system.  That is the point.  It is not merely a procedural fairness issue, but a necessary part of the ‑ ‑ ‑

KIEFEL J:   It is not part of a prevailing practice?

MR MORRISSEY:   I am sorry, your Honour?

KIEFEL J:   It is not a prevailing practice in this jurisdiction?

MR MORRISSEY:   The practice of pleading is effectively unknown in this jurisdiction.  We are against the entire weight of authority, and if your Honours had the opportunity to view the terms of the exchange between – I appeared in the initial matter ‑ ‑ ‑

KIEFEL J:   You do not suggest that there has, in fact, been any denial of procedural fairness arising out of this?

MR MORRISSEY:   Only in this sense, that procedural fairness must include an accurate statement of the charge.  The analogy I used below – I use it again – is that it would not avail a prosecutor to say to a man charged with manslaughter that you may be charged with manslaughter, but we are seeking to prove the mental element.  We are putting you on full notice, and we are providing you with appropriate disclosure of the facts, and we shall seek the death penalty in due course.  There would be no want of individual ‑ ‑ ‑

KIEFEL J:   It would be a very old case, would it not?

HAYNE J:   Just a touch.

MR MORRISSEY:   It is by way of illustration, your Honour.  The reason I use it is because I wish to point to the difference in kind between the punishments available for – if we are right about our civil and criminal contempts being distinct but related offences, so characterised, then one has got a punishment attaching to it that is different in kind, perhaps using ‑ ‑ ‑

KIEFEL J:   Or where one carries a circumstance of aggravation.

MR MORRISSEY:   Our contention is that because it is not merely exposure to a higher fine or a larger prison term but a different outcome, namely conviction, that that is sufficient to catapult it into a different nature of offence.  That is the point we must make good, but we seek to, because we say that exposure to a conviction is different – that really comes to the crunch of this.  Perhaps I am jumping bravely over the questions your Honour is asking seeking to come to Coward v Stapleton, but that is the heart of our submission here.

If we are right, then your Honour Justice Hayne has raised the issue, does it still remain a point of pleading?  We can say no more than that it would be fundamental and it arises from the very nature of the accusatorial system, if we are right.  That is as high as we will get as an answer to your Honour’s question.

In terms of the substance of this Coward v Stapleton requires the gist of the allegation to be provided.  It is not appropriate either on this application – first of all, we would say we do not seek to replicate criminal procedure and criminal pleading rules in the rules applicable to a process of the court - must keep control of and not hand over to the Executive.  There are cases – and Coward v Stapleton is explicit about it – where very little need be explained by way of the gist - Mr Zukanovic chewing his gum in the court.  There may need be little to explain by way of disclosure of the case against him and the gist may be sufficient to say “You did that”, in other words, a very summary formulation may be appropriate.

When it comes to the breach of – and in such a case, I will call them pleadings without prejudice to preserving the argument, if I may, your Honour – but what must be pleaded will fall below what is required in a criminal case.  However, there are cases when the gist of the charge will be more sophisticated and more demanding than what is required of a prosecuting authority prosecuting a criminal matter.  Prosecutors are laying charges against the public law, against the criminal law, which are rules, if you like – positivist formulation will suffice, rules of general application backed by a sanction of punishment.

There is an analogy with contempt proceedings, but a contempt proceeding, particularly of the type here, where it is by way of breach of a court order or breach of an undertaking, can be more complex because what is required under the rule here is specification of the charge.  It is required that the document itself, the charge – I will take you to it…..but it is the actual summons itself in the statement of charges which must contain the allegation.

Specification will have a meaning depending upon what the other possible charges available are.  One charges murder and one is not required to plead the mental element thereof because it is a rule of general application.  But here, an accused person on a particular set of facts – a respondent, to use the terms of 75.06 – might be compelled to face the allegation on the basis that it is a civil contempt exposing them to particular penalties, or a criminal contempt.

KIEFEL J:   I take it that you are not suggesting that is actually an element of the offence?

MR MORRISSEY:   No, we are certainly suggesting it is an element of the offence, and we cannot make this good without that because – yes, we are suggesting that.

KIEFEL J:   Correct me if I am not remembering this correctly, but in the Court of Appeal, was it not noted that there was a concession that this was not an element of the offence before the primary judge?

MR MORRISSEY:   No, what occurred before the primary judge was that in written submissions the argument was advanced by us that it was an element of the offence and had to be dealt with, and Justice Cavanough said that - “Am I able to do that?” and I was there, and I made the concession that on the current state of the law he could not.  In effect, we did what could be described as a timorous marking of territory.  The point was taken ‑ ‑ ‑

KIEFEL J:   I suppose regardless, what that points up is that the issue about this was on the table at a very early point in the proceedings?

MR MORRISSEY:   The issue was on the table; that is correct.  Justice Cavanough conducted himself entirely in accordance with Victorian authority in doing that.

HAYNE J:   You knew the case that was being made against you?

MR MORRISSEY:   In terms of the factual allegations, there can be no complaint made.  That is correct.

HAYNE J:   Yes.

MR MORRISSEY:   Yes.  The issue really is one - it is at a high level of generality; that is correct.  It will only be made good if we can establish a number of – there are several steps of reasoning, not all of which are secure, but all of which are, in our submission, strongly arguable, and again, if we proceed commencing with the onus of standard of proof, then we hope the argument arguably falls into place as follows.

What we are submitting here is that the old category, civil contempt and criminal contempt, still do have a meaning, but it has to be reconsidered in light of Witham v Holloway.  Civil contempts are now to be proved beyond reasonable doubt and having hedged about the term “offence” – I appreciate the Court will not think that we are trying to bind the Court by that – civil contempt ought to be conceived of as an offence with five elements to be proved, and they are set out in Advan v Dean Gleeson fairly uncontroversially.

We would submit that a criminal contempt consists – in the circumstances of a breach of court order – of those five circumstances plus the element of contumacy.  That is a difference in kind, and not in degree.  The component parts of each charge should be conceived of as elements according to criminal reasoning because that is entailed by the standard of proof; you must impose that on something.  Shepherd v The Queen, returning for a moment to pure criminal reasoning, makes it clear that is what has to be proved beyond reasonable doubt; that is what the notion focuses upon.

If that is right, if you look to the elements of what we are conceding as the offence of civil contempt, then each must be proved beyond reasonable doubt.  A particular factual matrix might yield reasonably a doubt about contumacy, but no doubt about the other five elements, and in such a situation it would be open for a court – if a criminal contempt were pleaded, then a lesser included offence might be found as an alternative.  Looking at it from the other point of view, from the position of – actually, before I get to that point, I will simply say something else.  The requirement of ‑ ‑ ‑

HAYNE J:   In the context of this case, if we go back to - page 23 of the application book is where we find the charges as framed, do we not?

MR MORRISSEY:   Yes, your Honour.  Yes, correct.

HAYNE J:   There are many charges, are there?  Where do I find most conveniently the Grocon charges?

MR MORRISSEY:   His Honour imposed it was artificial, but without objection beneficially for the CFMEU.  He made findings in respect of five, and I do not believe I can help your Honour swiftly to where those five are.

HAYNE J:   Do the specification of charges as indicated at the page I have suggested give sufficient indication of the way the charges were framed?

MR MORRISSEY:   Yes.

HAYNE J:   CFMEU, by its agents, did certain things.

MR MORRISSEY:   Yes.

HAYNE J:   What do you want added – “contumeliously”?

MR MORRISSEY:   No, no, we cannot have – “contumaciously”.

HAYNE J:   Contumaciously.

MR MORRISSEY:   Yes.  We cannot have “contumelious” for another reason that his Honour just ‑ ‑ ‑

HAYNE J:   Yes, right.

MR MORRISSEY:   Your Honour is correct; that is what we wish to have added.  Your Honour, may I put it in these terms?  Our contention is that it is a jurisdictional question which triggers the court’s ability to deal with the case in a particular way.

HAYNE J:   Yes.

MR MORRISSEY:   Just as a charge of murder might.  There is an amending power that could be relied upon.  We submit two things follow from our submission that it should be so pleaded.  The first is that the accusatorial system allows the respondent to sit on their hands and wait, so one might postulate a CFMEU who find a charge framed in those terms who say “We are not charged, chaps, with a criminal intent.  We are charged with a civil contempt.  That will do.  Do not go to court.  Do not contest it.  Do not admit it”.  They would be entitled to take that ‑ ‑ ‑

KIEFEL J:   That is not this case, though.

MR MORRISSEY:   That is not this case, but in terms of construing what is required in the charge sheet, if you conceive of the requirement to plead the case as merely a question of fairness to the defendant or to the respondent, this application fails.

HAYNE J:   Yes.

MR MORRISSEY:   The question is whether there is more to it than simply fairness.  That is really what is put against us, that it is a procedural fairness issue, and in terms of, if you like, subjective disclosure of the facts relied upon, material facts and things, no complaint was made and we could not start now.  However, the court is armed at the beginning of a proceeding with that document, and it comes back to this, that the rule says “and I specify the contempt”.  That is not a hollow requirement here because specifying the contempt in this circumstance means choosing between a greater and a lesser, similar offence, with the same elements, but one added.

It is unusual that it would arise.  The reason why this arises now is, one might say, as a freak of history because our submission is that because of the three cases we referred to, Caltex, Witham v Holloway and the recent trio of cases, that the procedures applicable to contempt, at least in these circumstances, need to be reconsidered. 

It is needed because there are differential practices.  One can see in the Federal Court, there are cases such as AIS, to which we referred – these are only examples of the sort of troubles that there are – where the Federal Court is inclined to require specifics in pleading, whereas in Victoria the practice is absolutely clear and Justice Cavanough rehearsed them in Livingspring), in this matter and others, that it is open to deal with the issue of contumacy at a later stage, and that it is not to be seen as an element as we are now advancing.  We are advancing that there could be a significant revision in practice and it would require a difference.

We do wish to say that that will not require any clipping of the court’s power.  What it requires is a recognition that if you conceive of it as accusatorial, then certain fundamental requirements procedurally go with it.  It does not prevent the court from dealing flexibly with such contempts as arise.  It just creates certainty, and at the moment, there are differential practices ‑ ‑ ‑

HAYNE J:   The consequence that would attach in this case is what?

MR MORRISSEY:   The removal of a conviction.

HAYNE J:   Proceedings have miscarried wholly?

MR MORRISSEY:   I think the nature of concessions we made below mean that we cannot say so.

HAYNE J:   Yes.

MR MORRISSEY:   I think here, what is at issue is the avoiding of a conviction that his Honour, according to us, had no jurisdiction to impose.  That is the way it is put they have done.  Whether it were remitted back for reconsideration on penalty is another question but we do not say that it necessarily entails a different financial penalty.  It may, but we cannot say that it would, as I said.  That is the way that it is put.

Your Honours, we submit here that it is, in a sense, two hurdles to be jumped - several minor ones, and adding to two is contumacy and element, does it have to be in the charge?  Those are the two.  Contumacy, we would submit, now has to be viewed as an element, if you are conceiving of civil contempt as an offence.  Whether it has to be in the charge, clarity is important; it is too fundamental.  That is the notice to an accused who may be entitled to sit upon their hands and enjoy the benefits of an error of drafting, or of a decision of drafting that was made. 

The court being armed with the charging document, as the rule specifically requires, may permit amendments, and in this case may have permitted amendment right up until the end, but did not.  For those reasons, your Honour, we do concede that we are asking for a 180 degree change in Victorian practice arising from the new cases but, nevertheless, for those reasons, we submit it is appropriate to grant special leave in the case.

HAYNE J:   Yes, thank you, Mr Morrissey.  We will not trouble you, Mr Wheelahan or Mr Davis.

Having regard to the course of proceedings in this matter, an appeal to this Court would enjoy no prospect of success.  This would not present an appropriate vehicle in which to consider any question of principle, or any question about proper pleading practice in relation to questions of contempt.  Special leave to appeal is refused.  It must be refused with costs.

The Court will adjourn to reconstitute.

AT 11.25 AM THE MATTER WAS CONCLUDED