Edensor Nominees Pty Ltd v Anaconda Nickel Limited
[2002] VSC 365
•30 August 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 4381 of 2001
| EDENSOR NOMINEES PTY LTD (ACN 005 168 516) | Plaintiff |
| v | |
| ANACONDA NICKEL LIMITED (ACN 060 370 783) | Defendant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2002 | |
DATE OF JUDGMENT: | 30 August 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 365 | |
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APPEAL FROM MASTERS – contempt of court – filing of affidavit in opposition – distinction between civil and criminal contempt – proceeding alleging criminal contempt should be considered to be a criminal proceeding
Supreme Court Act 1958 – section 3(4)
Supreme Court (General Civil Procedure) Rules 1996 – Order 75
Attorney0General for the State of Victoria v Garbor Horvath, Senior [2001] VSC 269
Kift v R [1993] 1 VR 703
R v Hoser and Kotabi Pty Ltd [2001] VSC 443
R v Spectator Staff Pty Ltd [1999] VSC 107
The Queen; Ex Parte the Director of Public Prosecutions for Western Australia v Westralian Newspaper Holdings Ltd (1995) 16 WAR 508
TPC v Feather Mills Pty Ltd (1990) 26 FCR 555
Witham v Holloway (1995) 183 CLR 525
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P R Hayes QC with Mr I D Martindale | Schetzer Brott & Appel |
| For the Defendant | Mr A J Myers QC with Mr I B Stewart | Holding Redlich |
HER HONOUR:
On 8 July 2002 the plaintiffs issued a summons for the punishment of the defendant for contempt of court, alleging that the defendant interfered with the due administration of justice, inter alia by inducing or procuring a firm of solicitors, Clayton Utz, to punish a partner in that firm for proposing to give evidence for the plaintiffs in a proceeding heard before Justice Warren. Justice Warren referred the summons to Master Kings for the purpose of directions.
Relevantly, the plaintiffs sought, and the defendants opposed, the making of an order that the defendant file affidavits in opposition, and the making of orders for dates for the return of subpoenas and notices to produce. On 5 August 2002 Master Kings made the following orders:
1.The Plaintiffs file and serve any further affidavits on which they intend to rely on or before 26 August 2002.
2.The Defendant file and serve a request for particulars on or before 9 September 2002.
3The Plaintiffs file and serve a response to the request on or before 23 September 2002.
4.The subpoena be made returnable on 7 October 2002.
5.The Plaintiffs’ summons for directions is adjourned to 7 October 2002.
6.Costs are reserved.
The Master made no order that the defendants file affidavits or for the return of a subpoena or notice to produce directed to the defendant. In her judgment she made it clear that the subpoena referred to in order 4 was a non-party subpoena.
The plaintiffs have appealed to a Judge of the Court against the whole of that order, and submitted minutes of proposed orders. By virtue of Rule 77.05(7) of the Supreme Court (General Civil Procedure) Rules 1996 (“the Rules”), the appeal is to be by re-hearing de novo of the application to the Master.
The first three proposed orders differed from the first three orders of the Master only in the dates for filing and service, and with the consent of both parties, and in order not to delay the proceeding, those orders were made by the Court and need not be considered further.
The remaining proposed orders read as follows:
4.On or before 4.00 pm on 21 October 2002 the defendant shall file and serve any affidavit on which it intends to rely at trial.
5.On or before 4.00 pm on 4 November 2002 the plaintiff shall file and serve any affidavit in reply on which it intends to rely at trial.
6.Any subpoena and any notice to produce served by the plaintiff be returnable before Master Kings at 10.30 am on 11 November 2002.
7.The directions hearing be adjourned to 10.30 am on 11 November 2002 before Master Kings.
8.Liberty to apply.
9.Costs reserved.
In issue are proposed orders 4 and 6.
In Witham v Holloway[1] Brennan, Deane, Toohey and Gaudron JJ said:
In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed when there is a contempt in the face of the court or there is an interference with the course of justice.
The contempt alleged in the summons is an interference with the course of justice, and thus a criminal contempt.
[1](1995) 183 CLR 525 at 530
After considering more closely the considerations which have been found to justify a distinction between civil and criminal contempt, their Honours went on to say [2] “The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory” and “all proceedings for contempt must realistically be seen as criminal in nature. The consequence is that all charges of contempt must be proved beyond reasonable doubt.”
[2]at 534
Order 75 of the the Rules, which appears in Chapter I, establishes a civil procedure for the making of an “application for punishment of the contempt”. Section 3(4) of the Supreme Court Act 1958 (“the Act”) provides that a proceeding to which Chapter I applies must be conducted in accordance with the Rules and not otherwise. However, Rule 75.11 provides that the Court may punish a natural person for contempt by imprisonment or fine or both, and a corporation by sequestration or fine or both, and draws no distinction between civil and criminal contempt. Furthermore, the Court has an inherent power to make an order to imprison for a fixed term to punish a civil contempt [3] .
[3]Danchevsky v Danchevsky [1974] 3 All ER 934 per Lord Denning MR and Scarman LJ.
Thus the establishment of a civil procedure for contempt is not conclusive as to the nature of the proceeding. I would, with respect, adopt the view of Ashley J in Attorney-General for the State of Victoria v Gabor Horvath, Senior[4] that a proceeding discretely alleging a criminal contempt, whether or not it was said to have arisen in or in connection with a civil proceeding, should be considered to be a criminal proceeding. There are procedural differences between proceedings for contempt and the trial of a criminal charge, notably, as is pointed out in Witham and Holloway [5] that a charge of contempt does not involve trial by jury. Nor, of course, does a summary proceeding in the Magistrates’ Court. In any case, those procedural differences do not alter the essential nature of the proceeding.
[4][2001] VSC 269 at [45]
[5]at 534
In Kift v R[6] the Appeal Division (Crockett, Byrne and Harper JJ) was concerned with an appeal from a finding that the appellant, an employer of a member of jury pool, was guilty of contempt of court in that he had instructed the member not to attend for jury service. The court said [7] :
. . . the criminal nature of the proceeding is reflected in the common law requirement that proof be beyond reasonable doubt: Keeley v Brooking (1979) 143 CLR 162; and that the person accused could not, as His Honour correctly said, be compelled to give evidence: Conmet Products U.K. Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 at 73; although should she elect to do so she is liable to be cross-examined.
[6][1993] 1 VR 703
[7]at 708
Counsel for the defendant relied on the statement by Gray J in TPC v Feather Mills Pty Ltd[8] that:
There are no pleadings in a criminal proceeding and it is open to the defendant to such a proceeding to put the prosecutor to proof of every issue of the offence and to withhold indications of its defence at least until cross-examination of prosecution witnesses, and perhaps until it calls evidence, if it does.
[8](1990) 26 FCR 555 at 559
Counsel for the defendant submitted that to require the filing of affidavits on behalf of the defendant before the Crown had closed its case involved the Crown, in effect, calling the accused, which involved an infringement of the right of the accused to remain silent. He referred to The Queen; Ex Parte the Director of Public Prosecutions for Western Australia v Westralian Newspaper Holdings Ltd[9] , in which the Full Court of the Supreme Court of Western Australia was concerned with a similar issue to that before me, but which arose after the Crown had closed its case. Malcolm CJ, with whom Franklyn and Walsh JJ agreed, said that [10] :
The theoretical difficulties referred to by [counsel for the first contemnor] and any potential prejudice to the contemnors can be avoided by making programming orders which would enable the question whether there is a case to answer to be dealt with before the contemnors are required to file any affidavits in answer to the charges of contempt. The position would then be, as [counsel] requested, that the contemnors would not have been required to file and serve their affidavits until after the Crown case had been closed, which has already occurred, and the Court had ruled on any submission of no case to answer.
[9](1995) 16 WAR 508
[10]at 513-4
It is not for the Court, in the present appeal, to make orders for the filing of affidavits at a later stage in the proceeding initiated on 8 July 2002. I am concerned simply with the issue before me, which is whether or not to make orders 4 and 6 contained in the proposed minutes of order. Nevertheless, the dismissal of this appeal will not affect whatever orders may be made for the future management of the proceeding.
Counsel for the plaintiff submitted that it was the practice of this Court in proceedings for contempt that orders for the filing of affidavits intended to be relied upon in reply be filed prior to trial. He referred to R v Hoser and Kotabi Pty Ltd[11] and R v Spectator Staff Pty Limited[12] . However, while there is reference in each of those decisions to evidence given upon affidavit, it is not apparent that those affidavits were required to be filed and served at any given point in the proceeding; and specifically, whether they were required to be filed and served before the applicant, being required to prove the matters alleged beyond reasonable doubt, had closed its case, and any submission of no case to answer had been dealt with.
[11][2001] VSC 443
[12][1999] VSC 107
While Rule 75.06(5) provides for (but does not require) the service of affidavits on the respondent, there is no specific requirement in Order 75 for the making of affidavits by the respondent at any stage of the proceeding. Section 3(4) of the Act does not require the making of affidavits by the respondent; as the Master points out in her judgment, Rule 40.03 confers a discretion as to whether evidence be given orally or by affidavit.
The considerations which I have found to be relevant to the question as to whether the defendant should be required to file and serve affidavits by 21 October 2002 are equally relevant to the question as to whether a date should be fixed for the return of any notice to produce served on the defendant.
For the reasons set out, the appeal will be dismissed in so far as it relates to the proposed orders 4 and 6; and it would seem that proposed order 5 must fall with them. It may be that it is intended to retain the Master’s order 4 as to any non-party subpoena; and there seems to be no difficulty with proposed orders 7, 8 and 9. However, counsel may wish to make submissions as to these matters.
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