Doyle v The Commonwealth

[1985] HCA 46

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Brennan and Dawson JJ.

DOYLE AND OTHERS v. THE COMMONWEALTH OF AUSTRALIA AND ANOTHER

(1985) 156 CLR 510

1 August 1985

Contempt of Court

Contempt of Court—Order—Ex parte application—Persons affected not identified—Rules of the Supreme Court (Vict.). O. 52, r.3.

Decision

GIBBS C.J., MASON, WILSON, BRENNAN, DAWSON JJ.: Before the Court are an appeal brought by special leave from two decisions of the Supreme Court of Victoria (Brooking J.) and the return of an order nisi for writs of prohibition and certiorari directed to Brooking J., the Commonwealth and the Australian Telecommunications Commission ("Telecom").

2. In September and October 1983 the Commonwealth was the owner of land at South Yarra in Victoria on which there was erected a building which had been used by Telecom for offices but which had for some years been vacant. The building was described as a large mansion house, called "Bona Vista" and it was entered in the Register of the National Estate. The Commonwealth and Telecom wished to auction the property in November or December 1983. On about 4 September 1983 a group of trespassers broke into the building and commenced to occupy it. There was reason to believe that the trespassers were members of or were supported by bodies known as the Squatters' Union, the Western Region Resource Centre and the Tenants Advisory Service. A sign, headed "Squatters' Union Notice", was displayed at the premises and proclaimed that the house was occupied by persons unable to find housing that they could afford. Telecom made efforts to persuade the trespassers who were occupying the house to leave, not only by speaking to some of the occupants themselves but also by sending letters addressed to each of the three bodies mentioned. The trespassers however remained in occupation. On 26 September 1983 the Commonwealth and Telecom issued a writ out of the Supreme Court of Victoria claiming, inter alia, a representative order and an injunction. The defendants were Joan Doyle, Graham Brian Honner and Tammy Marie Van Hoof (although at that time the two last-mentioned defendants were described simply as Graham and Tammy). Joan Doyle was not an occupier but she was associated with the Squatters' Union and the Western Region Resource Centre and had apparently played some part in assisting the squatters in their occupation of Bona Vista. Graham Brian Honner and Tammy Marie Van Hoof had both become occupants of the building on 4 September. Each swore an affidavit on 29 September 1983 stating that on 22 September he or she had decided to leave Bona Vista and on 29 September was living elsewhere, but carefully omitting to state whether the departure occurred before the writ was issued on 26 September. An application was made by the plaintiffs on summons for a representative order and an interlocutory injunction, and on 4 October 1983, after a hearing at which the defendants were represented, Brooking J. indicated that he proposed to order that for the purposes of the plaintiff's action the defendants represent "all persons who were on the 4th day of September 1983 or are now or have at any time since the 4th day of September 1983 been occupiers of the house and land known as Bona Vista ...", and to grant an interlocutory injunction restraining "all persons who were on the 4th day of September 1983 or are now or have at any time since the 4th day of September 1983 been occupiers of the house and land known as Bona Vista ... from remaining upon or continuing in occupation of ... the said house and land". An order in those terms was formally made by Brooking J. on 5 October 1983 at about 11.00 a.m.

3. The plaintiffs' solicitor endeavoured to serve the order of 5 October on the occupants of Bona Vista later that day. He encountered some difficulty. While getting onto the property, he passed by a group of people chanting "Don't let Telecom homes rot: squat". Nobody would answer his knock on the front door nor his knock on the back door nor his knock on the side door of the house. He slipped copies of the order underneath each door. He saw an occupant speaking to a journalist through a broken window pane. He said to the occupant, "I have here a copy of an order made this day in the Supreme Court of Victoria" and passed a copy through the window. The occupant disappeared and the copy of the order fell into the room. He spoke to two occupants who were standing at the first floor windows, telling them that they were trespassers and that he had an order from the Supreme Court restraining their further occupancy of the property. One said, "Have you got a bed to sleep on tonight?" They asked whether there was anywhere else for them to go. He said that Telecom was looking into the matter but that they must obey the court order. Later that day a copy of the order was served on Ms Noone who was at that time the solicitor for the three defendants and who later became the solicitor for all the present appellants.

4. On 6 October, the plaintiffs placed evidence of these facts before Brooking J. and applied for an order for committal, or alternatively for leave to issue a writ of attachment, directed in either case to the occupiers of the land. The application was made ex parte. No attempt was made to name or identify any of the occupiers of the land. On 7 October his Honour made an order, the operative part of which read as follows:

"IT IS ORDERED that notice of a motion to commit for breach of (the order of 5 October) be dispensed with AND THIS COURT being of opinion that the persons who are now occupiers of the said house or any part thereof have committed a contempt of this Court by a breach of the said order made on the 5th day of October 1983 IT IS FURTHER ORDERED that each of the following persons do stand committed to prison for his or her said contempt that is to say all persons who are now occupiers of the said house known as 'Bona Vista' and situated at 59 Kensington Road, South Yarra or any part of the said house AND IT IS FURTHER ORDERED that the Plaintiffs do on or before the 8th day of October 1983 deliver to each of the persons taken into custody pursuant to this order a copy of this order and of the said affidavits AND IT IS FURTHER ORDERED that each of the said persons be brought before the Honourable Mr. Justice Brooking in the Practice Court Law Courts William Street Melbourne at 10.30 o'clock in the forenoon on Monday the 10th day of October 1983 so that he or she may then and there make application to be discharged from custody AND IT IS FURTHER ORDERED that this order be passed and entered forthwith."

5. At about 6.00 p.m. on 7 October the Deputy Sheriff, assisted by a large number of police officers, went to Bona Vista and in execution of the order arrested ten persons "on and within the perimeters of the land" and conveyed them to Pentridge Prison where they were incarcerated. The three defendants who had been named as representative defendants were not among the ten persons arrested.

6. In the meantime, at about 2.15 p.m. on 7 October, counsel on behalf of four of the persons subsequently arrested made application to Brooking J. for a stay of the order, which was refused. A further application was made to the Full Court of the Supreme Court at about 4.15 p.m., and that also was refused. It has rightly been pointed out to us by counsel that there is no evidence that any of the ten persons had been served with the order of 5 October, or that any in fact was an occupier of the house on either 5 or 7 October. Lest the sense of grievance of those arrested be exaggerated, it should be observed that the fact that four of them applied for a stay of the order showed that they, at least, were occupiers and knew before the order of 7 October was executed that it had been made, and if they had not been aware of the order of 5 October or had not wilfully disobeyed it, it would have been very easy for them to have informed Brooking J. of those facts. Further, in the affidavit sworn in support of an application made to Wilson J. in this Court on 8 October on behalf of the ten persons who had been arrested, there is no suggestion that the applicants were either not occupiers on 5 and 7 October or that they were unaware of the order of 5 October. On the material before us, it might very well be surmised that the ten persons who were imprisoned in fact knew of the court's order of 5 October and disobeyed it. But that is far from saying that they were rightly punished for a contempt.

7. On 8 October, Wilson J. heard an application, made on behalf of the present appellants (the three representative persons and the ten persons who had been arrested), for an order nisi for prohibition and certiorari, granted the order nisi and ordered the release of the ten prisoners.

8. Subsequently, after considerable delay, the appellants appealed to this Court by special leave from the orders made by Brooking J. on 5 and 7 October 1983. During the hearing of the appeal, after it had appeared that a decision on the appeal against the order of 7 October would dispose of the whole matter, this Court rescinded special leave so far as it related to the order of 5 October 1983.

9. It is sufficient to point to two insuperable difficulties in the way of upholding the order made by Brooking J. on 7 October: (1) a failure to serve on the persons sought to be committed notice of the application for the order for committal and (2) the form of the order which authorized or required the Sheriff to decide which persons fell within its terms and were liable to arrest and imprisonment accordingly.

10. Although disobedience of an injunction is not a criminal offence (Australian Consolidated Press Ltd. v. Morgan (1965) 112 CLR 483, at pp 497-498) and a proceeding for the committal of a person who has wilfully disobeyed an order of the court is not a criminal proceeding (see La Trobe University v. Robinson and Pola (1973) VR 682, at p 688) except possibly where the proceedings are grounded upon a contumacious or defiant contempt of the court (Australian Consolidated Press Ltd. v. Morgan, at pp 489, 501-502), a proceeding for committal may result in a very serious interference with the liberty of the subject - indefinite confinement. Safeguards similar to those appropriate in criminal proceedings therefore apply. Speaking generally, the notice of motion for committal must be served personally on the person sought to be committed, the charge must be distinctly stated in the notice of motion or other application and the person sought to be committed must be given a proper opportunity to answer the charge. Some aspects of the general principle were mentioned in the judgment of Williams A.C.J., Kitto and Taylor JJ. in Coward v. Stapleton (1953) 90 CLR 573, at pp 579-580 in the following passage:

"... it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard ((1868) LR 2 PC 106, at p 120); R. v. Foster; Ex parte Isaacs ((1941) VLR 77, at p 81). The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v. Piggott ((1909) AC 312, at p 315). The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.

Resting as it does upon accepted notions of

elementary justice, this principle must be rigorously insisted upon."

Consistently with this principle, the courts have insisted on the importance of personal service of a notice of motion for committal - indeed, so strictly has the requirement been enforced that it has been held that service could not be dispensed with although counsel undertook to appear for the defendant (Ellerton v. Thirsk (1820) 1 Jac. &W. 376 (37 ER 419)) or appeared on behalf of the defendant to object to the motion proceeding (Nelson v. Worssam (1890) WN 216; Mander v. Falcke (1891) 3 Ch. 488). The authorities were reviewed in Taylor v. Whelan (1962) VR 306 by Little J. who, in the absence of personal service, refused to proceed with a motion for committal and further refused to make ex parte an order dispensing with service. However personal service is not indispensable; substituted service may be ordered in a proper case. The effect of the cases was stated in Oswald on Contempt 3rd ed. (1910), at p.205, in a passage cited in Taylor v. Whelan, at pp 309-310, as follows:

"But when all reasonable efforts to effect personal service of a notice of motion to commit have been made and failed, the Court can and ought to grant an order for substituted service of the notice of motion."

There would have been no difficulty in the present case in making an order for substituted service which would have been likely to ensure that the motion was brought to the notice of the persons to be served; e.g., by requiring a copy of the notice of motion to be affixed to or left at the building. However, no efforts were made to effect personal service of a notice of motion, and no order for substituted service was sought or made.

11. It was submitted on behalf of the plaintiffs that the Court was given power by O.52 r.3 of the Rules of the Supreme Court of Victoria to hear the motion for committal ex parte and that in any case it could do so pursuant to its inherent power. Order 52 r.3 provides that subject to certain exceptions no motion shall be made without previous notice to the parties affected thereby and then continues as follows:

"But the Court or Judge, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking (if any) as the Court or Judge may think just; and any party affected by such order may move to set it aside".

It was held in La Trobe University v. Robinson and Pola, at p 689, that the provisions of O.52 r.3 apply to motions for committal. There is no reason to doubt the correctness of the decision on that point; it is supported by Bernstein v. Bernstein (1960) Ch. 128, at p 133 and Hipgrave v. Hipgrave (1962) P 91, at p 93, cases which considered the effect of an English rule in the same terms as O.52 r.3. However, the power given by the rule exists only when the judge is satisfied that the delay caused by proceeding in the ordinary way, i.e. by requiring previous service of the parties affected, would or might entail irreparable or serious mischief. There is not the least evidence that delay in the present case would have caused any such mischief. La Trobe University v. Robinson and Pola, upon which the plaintiffs relied, was a case in which it was held that the conditions stated in O.52 r.3 were satisfied; in that respect of course the decision depends entirely on the evidence adduced in that case.

12. The alternative submission was that the Court has an inherent power or jurisdiction to dispense with service and make an ex parte order for committal, at least if the contempt was flagrant and contumacious. A number of decisions of single judges, including Hipgrave v. Hipgrave, at pp 93-94 and Warwick Corporation v. Russell (1964) 1 WLR 613, at p 615; (1964) 2 All ER 337, at p 338, appear to support this proposition: see also La Trobe University v. Robinson and Pola, at p 689. However, with the greatest respect, a judge cannot dispense with the requirements of the Rules of Court unless the Rules give him power to do so, and when a power is expressly conferred on the court subject to a condition, a judge cannot, by relying on inherent powers, escape from the necessity of ensuring that the condition has been fulfilled. In the Supreme Court of Victoria, O.52 r.3 governs the power of the court to proceed to hear ex parte a motion for committal - it can do so only if it is satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief. This view is supported by Bernstein v. Bernstein, at p 133.

13. In any case, the fact that a breach appears to be flagrant and contumacious should never by itself justify a court in making an ex parte order for committal. When the court proceeds ex parte the person against whom the order is made obviously has no opportunity of putting forward his or her side of the case and when all the evidence is before the court the alleged contempt may prove to be much less serious than it at first appeared: cf. John v. Rees (1970) Ch. 345, at p 402. Only in an extraordinary case would it be right for a court to proceed ex parte in committal proceedings in exercise of the power conferred by a rule such as O.52 r.3 or, if no such rule exists, under an inherent power. Indeed, even in the absence of any express rule in terms such as those of O.52 r.3, a judge in any jurisdiction should ensure, before he proceeds ex parte to make an order for committal, that there is a particularly urgent need to proceed in that way in order to avoid irreparable or serious mischief. There was no justification for proceeding ex parte in the present case.

14. Secondly, there is no power to commit for contempt persons who are not identified in the order for committal. That of course is not to say that a person can escape committal because his true name is unknown; such a person could be sufficiently identified in other ways. There seems to be no direct authority to the effect that an order for committal must name the person who is to be committed, although the precedents of forms indicate, as one would expect, that that is the case: see, for example, Seton's Judgments and Orders 7th ed. (1912), vol.1, at pp.429-430, forms 9 and 10, and at pp.454-455, forms 1-4. There is, it is true, a decision, although it is not one to be followed, in which the court granted a rule at large and based a committal upon it; it is mentioned by Mr Fox in a learned article in vol.24 of the Law Quarterly Review, at p.275:

"In 1680 Scroggs C.J. tried the experiment of granting a rule at large, viz. that 'the Weekly Packet of Advice from Rome' which contained reflections on the King and the Duke of York should no longer be printed or published by any person whatsoever, and he afterwards committed the editor for a breach of the rule. Roger North tells us that this proceeding 'made a great noise', and was characterized as 'such an illegal invasion of property as had not been heard of since William the Conqueror'. Upon this was based one of the articles of Scroggs's subsequent impeachment."

Even in that case the actual order for committal appears to have named the person affected. However, authority is not necessary to show what the law requires in a case such as the present; it would be contrary to fundamental principle for a court to order the imprisonment of a group of unnamed persons answering a particular description; such an order would give to the officer enforcing it the power to decide who was to be committed to prison. The fact that a group of persons is involved does not mean that the order should be any less precise. It has been held that where an order for attachment is to be enforced against a group, the names of all the members of the group must be inserted in the rule nisi, which must be served on each member of the group: see R. v. Poplar Borough Council (No. 2.) (1922) 1 KB 95. In that case the names of all the members of the group had not been inserted in the rule nisi, but it was held that this was an irregularity that could be and in fact had been waived. Where the court is concerned, not with an application but with the order for committal itself, waiver of such a defect would be impossible.

15. For these reasons the appeal against the order made by Brooking J. on 7 October 1983 must be allowed.

16. In the circumstances the prosecutors have consented to the discharge of the order nisi and it is therefore unnecessary to consider the questions which would have arisen on the application for the prerogative writs.

17. It should be ordered as follows:

1) Special leave to appeal against the judgment and order

of Brooking J. delivered on 5 October 1983 rescinded.

2) Appeal from the judgment and order of Brooking J.

delivered on 7 October 1983 allowed with costs. Order that the order made on 7 October 1983 be set aside.

3) Order nisi discharged by consent.

Orders

Rescind grant of special leave to appeal against the judgment and order of Brooking J. made on 5 October 1983. No order as to the costs of the application for special leave to appeal.

Appeal from the judgment and order of Brooking J. made on 7 October 1983 allowed with costs. Order that the order made on 7 October 1983 be set aside.

Order nisi discharged by consent.