Leaway v Newcastle City Council (No 2)

[2005] NSWSC 826

CITATION:	Leaway v Newcastle City Council (No.2) [2005] NSWSC 826 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	5 July 2005
JUDGMENT DATE :	26 August 2005
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Plaintiff to be heard in Supreme Court proceedings notwithstanding that it is in contempt of Land and Environment Court

CATCHWORDS:	PROCEDURE - contempt, attachment and sequestration - where the litigant in contempt of Land and Environment Court to be heard in Supreme Court proceedings - whether structure of the law concerning not hearing a person in contempt is a general rule subject to various exceptions, or a matter of discretion - exception requiring the contempt to have been in the same cause - significance of many judgments not recognising the exception requiring the contempt to have been in the same cause - factors relevant to exercise of discretion about whether to hear a litigant in contempt - JUDGMENTS AND ORDERS - reading reasons for judgment secundum subjectam materiam - CRIMINAL LAW - sentence - fines - procedures for enforcement
LEGISLATION CITED:	Bankruptcy Act 1966 (Cth) Crimes (Sentencing Procedures) Act 1999 Debtors Act 1869 (UK) Fair Trading Act 1987 Family Law Act 1975 Felons (Civil Proceedings) Act 1981 Fines Act 1996 Imprisonment for Debt Abolition Act 1846 10 Victoria No 7 Insolvency Act 1843 7 Victoria No 19 Insolvency Act 1844 8 Victoria No 15 Interpretation Act 1987 Judicature Act 1873 (UK) Supreme Court Act 1970
CASES CITED:	Ashburner's Principles of Equity, 2nd ed 1933 Australasian Catholic Assurance Company Limited v Federal Commissioner of Taxation (1959) 100 CLR 502 Australian Securities Commission v Macleod (Federal Court of Australia, 23 November 1994, unreported) The Australian Tramway Employees Association v Prahran & Malvern Tramway Trust (1913) 17 CLR 680 Barker v Dawson (1836) 1 Coop t Cott 207; 47 ER 821 Beames, The General Orders of the High Court of Chancery, London 1815 Bettinson v Bettinson [1964] 1 Ch 465 Bishop of Derry v Tyler (1834) 1 Coop t Cott 222; 47 ER 829 Bouvier's Law Dictionary, Revised 6th Ed (1856) Burnett v Burnett (1903) 3 SR (NSW) 513; 20 WN (NSW) 168 Burns Philp Trustee Co Ltd and others v Viney and Another [1981] 2 NSWLR 216 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 Chuck v Cremer (1846) 1 Coop t Cott 205; 47 ER 820 Clark v Dew (1829) 1 Russ & M 103; 39 ER 40 The Commonwealth v Bank of New South Wales (1950) AC 235 A Concise History of the Common Law, 5th edition 1956 Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 Ellice v Walmsley (1835) 1 Coop t Cott 207; 47 ER 821 Everett v Prythergch (1841) 12 Sim 363 In the Marriage of MKA and SH Fahmi (1995) 19 Fam LR 517 Fry v Ernest (1863) 12 WR 97; 9 LT 321 Graham v Sutton, Carden & Co [1897] 2 Ch 367 Green v Green (1828) 1 Coop t Cott 206; 47 ER 820 Hadkinson v Hadkinson [1952] P 285 Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 Historical Introduction to English Law, 3rd ed 1948 Holbrooke v Cracroft (1795) 5 Ves Jun 706; 31 ER 816 Hovey v Elliott, 167 US 409 (1897) An Introduction to English Legal History, 3rd edition 1990 Italiano v Barbaro (1993) 40 FCR 303 James v Federal Commissioner of Taxation (1955) 93 CLR 631 Jol v State of New South Wales (1998) 45 NSWLR 283 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Marchant v Dunlop (1927) 44 WN (NSW) 108 Martin v Scribal Pty Ltd (1954) 92 CLR 17 McM v C (No 1) [1980] 1 NSWLR 1 McMahon v Gould (1982) 7 ACLR 202; 1 ACLC 98 Melchart & Ors v Halsey & Ors (1771) 3 Wills KB 149; 95 ER 982 Morrison v Morrison (1845) 4 Hare 590; 67 ER 783 Mutual Life & Citizens' Assurance Company Limited v Evatt (1970) 122 CLR 628 Needham v Needham (1845) 1 Coop t Cott 208; 47 ER 821 Newcastle City Council v Leaway Pty Ltd & Anor [2004] NSWLEC 766 Newcastle City Council v Leaway Pty Ltd & Anor [2005] NSWLEC 305 Parry v Perryman (1838) 1 Coop t Cott 207; 47 ER 821 Permewan Wright Consolidated Pty Ltd v Attorney General (NSW) ex rel Franklins Stores Pty Ltd (1978) 35 NSWLR 365 Pickett v Loggon (1800) 5 Ves Jun 702; 31 ER 814 Price v Price (Nos 1 & 2) (1963) 4 FLR 43 Price v Price (No 2) (1961) 4 FLR 40; 80 WN (NSW) 363 Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 Ricketts v Mornington (1834) 7 Sim 200; 58 ER 813 Shaddock v Parramatta City Council (1980) 150 CLR 225 Short v Short (1973) 7 SASR 1 Smith v Jenkins (1969) 119 CLR 397 Taylor v Taylor (1849) 1 Mac & G 397 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (Federal Court, Foster J, 1 July 1998, unreported) Turner v Dorgan (1842) 12 Sim 504; 59 ER 1226 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 In Re Wickham; Marony v Taylor (1887) 35 Ch D 272 Wild v Hobson (1813) 2 V & B 105; 35 ER 259 Wilson v Bates (1838) 3 My & Cr 197; 40 ER 900 Witham v Holloway (1995) 183 CLR 525 Woollahra Municipal Council v Shahani (1990) 69 LGRA 435 X Limited v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 Young v Jackman (1986) 7 NSWLR 97
PARTIES:	Leaway Pty Limited - Plaintiff Newcastle City Council - First Defendant Daryl Gray - Second Defendant
FILE NUMBER(S):	SC 3694/05
COUNSEL:	D Allen - Plaintiff PW Larkin - First Defendant D Pritchard - Second Defendant
SOLICITORS:	Brooks & Co - Plaintiff Sparke Helmore - First Defendant Sparke Helmore - Second Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

26 AUGUST 2005

3694/05 LEAWAY PTY LIMITED v NEWCASTLE CITY COUNCIL & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff in these proceedings seeks an interlocutory injunction. The defendants took a preliminary point in that application, that the plaintiff should not be heard because it is in contempt of court. These reasons relate to that preliminary point.

Factual Background

2 The plaintiff operates a waste management facility or waste transfer station at 55 Throsby St. Wickham. It is located within the local government area administered by Newcastle City Council (“the Council”). The facility operates pursuant to a development consent, which is subject to certain conditions relating to the noise, smells and vibration which can emanate from the premises.

The Land & Environment Court proceedings

3 In 2004 the Council took proceedings against the plaintiff and the plaintiff’s principal director in the Land & Environment Court (“L & E Court”), alleging a breach of those conditions of the development consent. Those proceedings resulted in an order of the L & E Court on 29 June 2004, which restrained the plaintiff and the plaintiff's principal director from using the premises otherwise than in accordance with the development consent. The plaintiff and the plaintiff’s director were ordered to pay the costs of the proceedings.

4 The operation of the injunction was suspended, through two successive orders of the L & E Court, until 4 pm 31 August 2004. An order of that court on 23 August 2004 ordered the plaintiff and the plaintiff’s director to pay the costs of the Council, it seems of the application for suspension of the injunction.

5 In November 2004 the Council took further proceedings against the plaintiff and the plaintiff’s director in the L & E Court, alleging they were in contempt of court, for breach of the orders. On 17 December 2004 McClellan CJ published a judgement finding the contempt charges made out: Newcastle City Council v Leaway Pty Ltd & Anor [2004] NSWLEC 766. His Honour said:

“15 The breaches which have occurred are, in my opinion serious. The Council, mindful of the location of this proposed activity when granting development consent, was careful to impose conditions designed particularly to protect the amenity of the local people from noise vibration and smell. The breaches which have occurred have been knowing breaches over a continuing period of time, in circumstances where both respondents must have been aware that their activities were causing difficulties, inconvenience and serious intrusion into the amenity of some of the neighbours. Bound as they were by the orders of the Court, their responsibility was to ensure that those orders were obeyed.
16 In that respect, they have failed and I am satisfied, without any doubt, that they have knowingly failed to meet their obligations. In those circumstances, in my opinion, it is appropriate to impose a penalty in a monetary sum which should be a total sum of $50,000.”

6 His Honour indicated that, though he had expressed his view about the appropriate penalty, if the operation of the premises was improved, by the carrying through of a regime which the plaintiff and its director proposed, he would entertain an application to remit the whole or part of the penalty. For that reason, his Honour deferred passing sentence until 5 April 2005.

7 A further hearing occurred before his Honour on 8 April 2005, at which factual questions relevant to whether the penalty should be remitted in whole or part were explored. His Honour gave a judgement the same day: Newcastle City Council v Leaway Pty Ltd & Anor [2005] NSWLEC 305. His Honour found that there were continuing problems with odour, which arose from green waste being received at the depot and then decaying. He said:

“15 I am persuaded that, put in simple terms, the way in which the premises have been conducted and continue to be conducted imposes serious adverse impacts on the neighbours because of the emission of odour…”

8 His Honour concluded that the time had arrived when an order to pay the penalty which he had indicated on 17 December 2004 should be made, and an order for the costs of the proceedings should also be made.

9 On 8 April 2005 the plaintiff and the plaintiff’s director made application for time to pay the penalty. His Honour said:

“23 The respondents have indicated that they would seek a period of six months within which to pay the penalty which I propose. In the circumstances, this is, to my mind, an excessive period of time. As I have indicated, the problems with these premises have been continuing for a long period and notwithstanding the opportunities which I have provided, those problems remain. To my mind, a period of twenty-eight days would be the appropriate time within which the penalty should be paid.”

10 Orders were made in the L & E Court on 8 April 2005, in the following terms:

“1. The Court formally finds the contempt alleged with respect to both respondents proven for the reasons indicated in the judgment of Justice McClellan dated 17 December 2004.
2. A penalty is imposed in the total sum of $50,000 to be paid jointly or severally by the respondents. Such payment to be made within 28 days of 8 April 2005.
3. The Court orders the respondents to pay the applicant’s costs of 4 April and 8 April 2005.”

Those orders have been entered. There has been no appeal against them.

11 No part of the penalty of $50,000 has been paid. On 1 July 2005 (after the plaintiff’s solicitor became aware that it would be alleged his client should not be heard in the present proceedings because it was in contempt) the plaintiff’s solicitor lodged with the L & E Court an application to pay the fine by instalments of $5,000 per month. That application was refused on 4 July 2005.

These Proceedings

12 The defendants in these proceedings are the Council, and the Council's solicitor.

13 The proceedings were begun on 28 June 2005, when a statement of claim and notice of motion seeking an interlocutory injunction were filed in court before the Duty Judge. Short service was granted of the notice of motion.

14 The statement of claim alleges that the second defendant, on the instructions of the first defendant, sent a letter to customers of the plaintiff on 22 June 2005. The statement of claim alleges, in broad terms, that that letter incorrectly represented to the customers that they were no longer able to deliver second-hand building materials to the plaintiff’s waste transfer station, and that any attempt to deliver such materials to the station could result in the customer being prosecuted for an offence. Delivery of that letter is alleged to constitute misleading and deceptive conduct contrary to section 42 of the Fair Trading Act 1987, the tort of injurious falsehood, and the tort of negligence. The statement of claim alleges that, because of that letter, customers of the plaintiff had ceased delivering second-hand building materials to the plaintiff at the premises. The plaintiff claims an injunction against distribution of any other letters or written material repeating the alleged misrepresentation or anything similar to it, and damages, including exemplary damages in relation to the alleged injurious falsehood and negligence.

15 The plaintiff’s notice of motion seeks an injunction, similar to one claimed as final relief in the statement of claim, until the hearing of the suit or further order. It is that application for an interlocutory injunction which was listed before me as Duty Judge on 5 July 2005.

Procedure for hearing this application

16 At the same time as the plaintiff’s application for an interlocutory injunction was listed on 5 July 2005, there were also listed before me as Duty Judge two notices of motion, one filed by each of the defendants, seeking security for costs. At the start of the hearing, counsel for the defendants submitted that I should hear all three notices of motion together. Mr Allen, counsel for the plaintiff, submitted that I should decide the question of whether the plaintiff should be heard before deciding any other question. He submitted that the plaintiff might wish to put forward no evidence, or different evidence, on the application about whether it should be heard, than it wished to put forward concerning the other matters in dispute. I accepted that submission of Mr Allen, and in consequence the only matter argued that day was the question of whether the plaintiff should be heard.

17 I reserved my decision on that question. On 14 July 2005 I informed that parties that I would dismiss the defendant’s preliminary point, and give reasons later. These are those reasons.

Bacon LC’s 78th Ordinance

18 The Ordinances of Lord Chancellor Bacon (reproduced in Beames, The General Orders of the High Court of Chancery, London 1815) consist of miscellaneous rules of procedure, said to have been published in open court in 1618 (Beames, op cit p 1). The 78th of these Ordinances (as reproduced in Beames, op cit p 35) is:

“They that are in contempt, especially so far as proclamation of rebellion, are not to be here, neither in that suit, nor any other, except the Court of special grace suspend the contempt.”

19 Beames op cit p 35 opines that the word “here” should be “heard”. This Ordinance is sometimes referred to as a source in Chancery of a principle that a person in contempt would not be heard. There are more distant sources in the practice of the ecclesiastical courts, taken over into Chancery: Hadkinson v Hadkinson [1952] P 285 at 295 per Denning LJ, Young v Jackman (1986) 7 NSWLR 97 at 100 per Young J.

20 The Ordinance is frequently misquoted in later cases, not only by correcting the “here” to “heard”, but also by omitting the phrase “especially so far as proclamation of rebellion”. It may be that these errors stem from the misquotation of the Ordinance in the digest of cases and notes which follow the report of Chuck v Cremer (1846) 1 Coop t Cott 205; 47 ER 820 at 1 Coop t Cott 208; 47 ER 822, a collection often used by later judges as a summary of the relevant law in this area. Bouvier's Law Dictionary, Revised 6th Ed (1856) explains “proclamation of rebellion” as meaning

“When a party neglects to appear upon a subpoena, or an attachment in the chancery, a writ bearing this name issues, and if he does not surrender himself by the day assigned, he is reputed, and declared a rebel.”

See also, Ashburner’s Principles of Equity , 2nd ed 1933, p 30. In Hovey v Elliott, 167 US 409 (1897) White J, delivering the opinion of the United States Supreme Court, said at 420 – 421

“… the proclamation of rebellion referred to in the ordinance was one of the then recognized processes for the purpose of compelling an answer in the suit. Indeed, the powers of the chancery courts to punish for contempt were normally brought into play, beginning with an attachment of the person, and culminating in the sequestration of the property of the one in contempt in order to compel an appearance and answer. Gilb. Forum Rom. p. 33; Bl. Comm. bk. 3, p. 443. Nowhere in these works is there an intimation that, as a penalty for contempt, a refractory defendant, not in default for answer, might be punished by being disallowed the right to defend against the bill filed in the cause. So far from such being the case, as already stated, a party who failed to appear or answer was treated as in contempt, and the various processes for contempt were resorted to in order to compel his appearance and answer; this being done in order that the conscience of the court might be satisfied when it entered a decree in the cause.

21 From both the fact that it is “especially” when there was a proclamation of rebellion that a person would not be heard, and from the fact that it is possible that “the Court of special grace suspend the contempt”, the wording of the Ordinance does not suggest that there was a bright line rule that a person in contempt would never be heard.

22 However, whatever it might have originally meant, the Ordinance came to be overlooked. Even by 1815, as Beames complains in his Preface, at xii,

“a current of practice has in some instances prevailed in direct opposition to particular published Orders, though there is nothing whatever, save the mere existence of the practice itself, to warrant the conclusion, that those Orders with which it is at variance have ever been repealed.”

23 Lord Chancellor’s Bacon’s 78th Ordinance was one of the ones concerning which a current of practice grew up which was opposed to what the Ordinance said (or to what it was thought to have said). It was not referred to as a reason for deciding a case for over 200 years. In the course of an extensive review of the English case law on the topic of not hearing people in contempt, White J in Hovey v Elliott 167 US 409 (1897) at 428 finds that

“In Ricketts v. Mornington, 7 Sim. 200, decided in 1834, we find the first adjudicated case directly referring to the seventy-eighth ordinance of Lord Bacon.”

24 And in Ricketts v Mornington (1834) 7 Sim 200; 58 ER 813 Sir Lancelot Shadwell VC said:

“Lord Bacon’s order, as administered in practice, is confined to cases where parties who are in contempt come forward voluntarily and ask for indulgences.”

25 The history of the cases thereafter shows a succession of cases which distinguish the Ordinance: eg Wilson v Bates (1838) 3 My & Cr 197; 40 ER 900; Taylor v Taylor (1849) 1 Mac & G 397 at 409; 41 ER 1318 at 1323; Everett v Prythergch (1841) 12 Sim 363 at 364; 59 ER 1171 at 1172. It is not a statement of the practice of the court of Chancery in even the nineteenth century, let alone the law today. There is no way to understand the practice which grew up but to examine the case law.

Any Binding Precedent?

26 That exercise could be avoided, for the purpose of deciding the present application, only if there were a precedent which bound me and required the present application to be decided in a particular way.

27 No relevant precedents have been decided by the High Court of Australia.

28 There are two candidates for such a precedent in New South Wales. The first is Burnett v Burnett (1903) 3 SR (NSW) 513; 20 WN (NSW) 168, a decision of the New South Wales Full Court. After a divorce, a mother had petitioned the Court for access to a child. That application failed, and she was ordered to pay the costs of it. At a time when those costs had still had not been paid, she petitioned again for access to the child. It was submitted to the trial judge that she should not be heard on that petition until she had paid the costs. The trial judge rejected that submission. An appeal was then taken to the Full Court. One submission which the mother’s counsel made was that the earlier petition was “differently entitled” to the later petition. Her counsel’s submission concerning the former petition was that (at 514):

“Though it was intended to be in this suit his Honour held that it was not (reported 19 WN 304). The petitioner, therefore, is not in contempt in this suit and should be heard: Clarke v Dew (1 Rus & M 103 at 107).”

29 That submission was rejected by Owen J (with whom Walker and Pring JJ agreed) at 515:

“It is perfectly clear that the contempt is in the same suit as that before the Court when this order was made. That being so , I am of opinion that the petitioner cannot take any steps in this suit until the costs are paid …” (emphasis added)

Thus, Burnett v Burnett (1903) 3 SR (NSW) 513; 20 WN (NSW) 168 provides no authority on the question relevant to the present case, of whether a contempt of the L & E Court prevents the person who is in contempt from being heard in this Court, in a different suit.

30 To understand the second candidate for being a binding authority, the decision of the English Court of Appeal Hadkinson v Hadkinson [1952] P 285 should be first discussed. On a divorce, the wife had been granted custody of the child of the marriage, subject to a direction that he not be removed from England without the sanction of the court. She disobeyed that direction by taking the child to Australia. The father obtained an order requiring her to return the child to England by a particular date. She appealed against that order. The father’s counsel submitted that the appeal should not be heard while she remained in contempt. The Court of Appeal upheld that submission.

31 Romer LJ (with whom Somervell LJ agreed) quoted from the judgment of Lord Cottenham LC in Chuck v Cremer (Coop. T. Cott. 205 and 338; 47 ER 820 and 884) to the effect that a court order must be obeyed, until the court itself discharged it. Romer LJ continued, at 288-9:

“Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the court by such a person will be entertained until he has purged himself of his contempt … The rule, in its general form, cannot be open to question …
No attempt, indeed, was made before us by Mr Beyfus, on behalf of the mother, to challenge the rule itself; he sought only to bring the present case within one of the exceptions to which the rule is undoubtedly subject. … One of such exceptions is that a person can apply for the purpose of purging his contempt and another is that he can appeal with a view to setting aside the order upon which his alleged contempt is founded; neither of those exceptions is relevant to the present case. A person against whom contempt is alleged will also, of course, be heard in support of a submission that, having regard to the true meaning and intendment of the order which he is said to have disobeyed, his actions did not constitute a breach of it; or that, having regard to all the circumstances, he ought not to be treated as being in contempt. The only other exception which could in any way be regarded as material is the qualified exception which, in some cases, entitles the person who is in contempt to defend himself when some application is made against him …”

32 It is to be observed that Romer LJ was not purporting to give an exhaustive catalogue of the exceptions. Another possible exception, beyond those he had listed, arose later in the judgment, at 293. It arose while dealing with a submission of counsel that:

“The order which he is seeking to challenge is … one that affects the welfare of a child; the court cannot deal with such a matter without having before it the views of the child’s mother, more especially when the mother has been granted its custody; and that the court cannot discharge its duty to the child if the mother is precluded from audience.”

33 His Lordship’s response to that argument, at 293, was:

“There would, I think, have been some force in this contention if the mother had desired to inform the court that, for reasons of health or otherwise, it was dangerous, impossible, or even impracticable, to bring the infant immediately from Australia to this country. The court would undoubtedly grant audience to anyone who desired to bring matters of this kind to its attention – even a person who was in contempt; for a refusal so to do might result in irreparable injury to the infant. Nothing of this kind, however, was or could be suggested in the present case.”

34 Denning LJ came to the same conclusion as Romer LJ, but for different reasons. Denning LJ sketched the history of the principle. He summarised the principle in the period prior to 1869 by saying, at 296:

“The ordinance of Lord Bacon was, however, capable of working great injustice, and in the course of practice it came to be much restricted in scope. It was confined to cases where a party in contempt, that is a party against whom a writ of attachment had issued or an order for committal had been made, came forward voluntarily and asked for an indulgence in the self same suit.”

35 Denning LJ then pointed to statutory enactments which had fundamentally changed the situation, saying (at 296):

“The Debtors Act 1869 abolished, for the most part, attachment for non-payment of money or costs, and the Judicature Act and Rules thereunder abolished the issue of attachment without leave. Since that time a party does not lose his right to be heard simply by default of pleading or default in payment of costs, nor automatically by disobedience to other interlocutory orders. Other consequences may follow from his default, eg proceedings may in the discretion of the court be stayed until he complies with the order, but unless there is a stay he is not automatically shut out from being heard. It is a matter for the discretion of the court dependent on the circumstances of the case: see In Re Wickham (1887) 35 Ch D 272.”

36 He concluded, at 298, that the modern rule was that:

“… the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, for so long as it continues, it impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.”

37 The second candidate for a case which provides a binding precedent governing the present case is Permewan Wright Consolidated Pty Ltd v Attorney General (NSW) ex rel Franklins Stores Pty Ltd (1978) 35 NSWLR 365. An injunction had been granted on 10 October 1978 restraining the applicant from using land in a particular way, on the ground that that use was prohibited by the relevant town planning instrument. Then, on 14 November 1978 the town planning instrument was amended, so that the type of use which the injunction forbade was no longer contrary to the town planning instrument. The applicant filed a notice of motion on 21 November 1978 seeking to have the injunction dissolved. That notice of motion was fixed for hearing on 27 November 1978. Between the time of the making of the injunction, and the hearing of the notice of motion, the applicant had continued to use the land in a way forbidden by the injunction. The respondent argued that the applicant should not be heard, because this breach of the injunction was an unpurged contempt.

38 A majority of the Court of Appeal rejected that argument. Reynolds JA said, at 367:

“Whilst no doubt a court may properly withhold relief to which a litigant is otherwise entitled in cases where that litigant is in contempt of the court's process, even assuming in this case that breaches of the court's order between the dates mentioned are made out and are continuing, that would not be a matter which should preclude the making of the particular order sought here. The contempt since 17 November is not of a serious order, and the order now sought is designed to avoid an undesirable conflict between the present state of the law and a subsisting order of this Court.
For this reason and because independent proceedings in respect of the alleged contempt have been instituted including proceedings directed by this Court, I would not think it necessary to make a finding in this proceeding as to whether there has been contempt.”

39 Mahoney JA, the other judge in the majority, gave reasons concerning the submission that the applicant not be heard as follows, at 374:

“The Court has been referred to authorities which establish the attitude which should be adopted to an application made by a party who is in contempt: see Hadkinson v Hadkinson [1952] P 285 at 288-289. The relevant principle is subject to qualifications or exceptions. In the present case, this Court's order, as was properly admitted by the plaintiff, was based upon the understanding that it should operate whilst the former interim development order continued to regulate what the defendant might do on the land. It was conceded, quite properly, that the spirit and intendment of that order was that it should not bind the defendant's conduct after the former order ceased to be operative according to its then terms. In such circumstances, I do not think that the principle should be seen as restricting what the court can or should do to make clear that its order, after the new interim development order came into force, did not continue to restrict what the defendant might do thereafter on the land.”

This reason, depending as it does upon what was the proper construction of the injunction, is different in nature to Reynolds JA’s reason.

40 Both Reynolds and Mahoney JJA expressly declined to decide whether the applicant was in contempt of court by reason of the breaches of order which had occurred before the town planning instrument was amended. This course adopted by Reynolds and Mahoney JJA can only mean that they were willing to hear the applicant, even if it should eventuate that the applicant had been in contempt.

41 Reynolds and Mahoney JJA agreed in making an order (at 374),

“… that the operation of the existing order be suspended during such time as the new interim development order continues in force and operates to restrict the use to which the land may be used or until the further order of this Court.”

42 Hutley JA dissented. His view as to the appropriate remedy was (at 371):

“The notice of motion should … be stood over until the person designated by the appellant to apologise on its behalf comes before the Court, and makes the appropriate apology … If it is not willing to submit to these terms the application should be dismissed with leave reserved to it to make a further application if any proceedings for contempt, whether pursued by the respondent or brought by the Prothonotary, are finally disposed of or it has otherwise purged its contempt.”

His Honour expressly approved, at 369, the statement of principle of Romer LJ in Hadkinson v Hadkinson [1952] P 285 at 288, which I have set out at para [31] above. He recognised, at 369, that there were exceptions to the rule that a person in contempt should not be heard, but did not elaborate on what those exceptions were.

43 While Mahoney JA also, in the passage quoted at [39] above referred to the same passage in Hadkinson v Hadkinson [1952] P 285, a binding precedent cannot be created by finding the common element in the views of a judge in the majority and the judge in dissent. I cannot find any reason for judgment which is common to the judgments of Reynolds JA and of Mahoney JA, and which is applicable to the present case.

44 In Price v Price (Nos 1 & 2) (1963) 4 FLR 43 the New South Wales Full Court (Herron CJ, Dovey and Macfarlan JJ) had before it a situation where a trial judge had extended the time for a litigant to file certain appeal books, at a time when that litigant was in breach of the order against which he was appealing. It had been contended before the trial judge that he should not be heard until he had remedied the breach of the orders. The trial judge overruled that contention, and an appeal from that decision was taken to the Full Court. In the course of the hearing in the Full Court, the party in breach paid into court the full amount of the arrears under the order which was appealed against. In those circumstances, the Full Court, at 49-50, declined to deal with the question of whether the appellant should not have been heard by the trial judge, stating that they “desire expressly to leave open questions implicit in it.”

45 I conclude that there is no decision by a court above me in the appellate hierarchy which dictates the result concerning this preliminary point.

A Matter of Discretion, or a Matter of Rule, or Part Discretion and Part Rule?

46 The most fertile field of application in England, in the first seventy years of the 19th century, of the principle that a party in contempt would not be heard was where the contempt arose from unpaid costs orders. In England, the Debtors Act 1869 (UK) abolished imprisonment for debt, with certain limited exceptions, and the Judicature Act 1873 (UK) had unified and in some respects simplified the practice of the courts. The English Court of Appeal in In Re Wickham; Marony v Taylor (1887) 35 Ch D 272 held that whether an action should proceed when a costs order in that action had not been paid had become a matter of discretion. Cotton LJ said, at 279-280:

“Undoubtedly in the Court of Chancery, before the Judicature Acts and Rules, when a party was in contempt for non-payment of costs, there was the practice of ordering all proceedings to be stayed until such costs should be paid; and I know of no rule which confined that practice to the costs of an application going to the root of the action. Where a party was in contempt the Court on application properly made – but not at the hearing – interfered to stay the proceedings, on the ground that it would be unreasonable that a party in contempt should harass his opponent by further proceedings until he had paid what he had been ordered to pay. Then it was argued very strenuously that the old practice must be disregarded, and that the Court does not treat parties as in contempt for mere non-payment of costs, I do not look upon it from the narrow view of contempt, if that was the foundation of the old practice, but in my opinion the principle that then existed subsists still; and if the Court thinks it unreasonable that proceeding should be allowed to go on, then the jurisdiction still remains, and ought to be exercised in a proper case. Sect. 24, sub-sect. 5, of the Judicature Act , 1873, reserves to all the Courts generally the old power of restraining vexatious or unreasonable proceedings in any cause or matter before them, if they think fit.”

47 Lindley LJ said, at 282:

“Attachment was the remedy for the breach of any order, and even now, notwithstanding the Debtors Act , 1869, an attachment will still be granted for the non-payment of money in a proper case: In re Freston 11 QBD 545. In this case the order of June, 1885, did not put the Plaintiff in actual contempt, but there is no doubt that the old Court of Chancery, founding itself upon the theory of contempt, did frequently stay proceedings on the ground of non-payment of costs. I agree that the non-payment of costs per se is not ground for staying proceedings, but there is a great distinction even now between actions the costs of which come out of the estate, and ordinary actions in the Queen’s Bench Division. It appears to me that under the present practice, whenever it can be shewn that a person is proceeding vexatiously in not paying costs which he has been ordered to pay, the Court has jurisdiction to stay the proceedings. This rule is, I think, applicable in all the Divisions of the Court. To hold that the Court has no power to say that an action shall not be allowed to go on until such costs have been paid would be to prevent the Court from stopping vexatious proceedings and might lead to grievous injustice. The merits of each case must be looked at …”

Graham v Sutton, Carden & Co [1897] 2 Ch 367 is to the same effect.

48 It is not clear whether Romer LJ, in Hadkinson v Hadkinson [1952] P 285 at 288-9 (in the passage quoted at para [31] above) regarded orders for payment of costs as one of the “orders relating merely to matters of procedure” that he did not include within his general principle that no application to the court by a person in unpurged contempt will be entertained.

49 In New South Wales there was early legislation abolishing imprisonment for debt in certain cases (section 26 Insolvency Act 1843 7 Victoria No 19; Insolvency Act 1844 8 Victoria No 15; Imprisonment for Debt Abolition Act 1846 10 Victoria No 7). Those early sections lead, through various intermediate stages, to section 98 Supreme Court Act 1970, which provided:

“(1) A judgment or order of the Court for the payment of money shall not be enforceable:
(a) by process of the Court for attachment of the person or for committal, or
(b) by the issue of a writ of capias ad satisfaciendum.
(2) This section does not affect the power of the Court to punish for contempt.”

Now sections 130 and 131 Civil Procedure Act 2005 make similar provision.

50 In the application of that section, while non-payment of a judgment or order for the payment of money could in some circumstances be contempt, it is not always contempt. One circumstance where non-payment of an order for payment of money would be unlikely to amount to contempt would be if the judgment debtor, through no action or decision of his own, simply did not have the means to pay.

51 The House of Lords, in X Limited v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 held that whether a person in contempt should not be heard was, even outside the area of costs orders and procedural orders, a matter of discretion. Lord Bridge of Harwich (with whom Lord Templeman, at 50, Lord Griffiths, at 50, and Lord Oliver of Aylmerton at 50 and Lord Lowry at 55 agreed) referred to the judgment in Hadkinson v Hadkinson [1952] P 285, and said, at 46:

“I cannot help thinking that the more flexible treatment of the jurisdiction as one of discretion to be exercised in accordance with the principle stated by Denning LJ better accords with contemporary judicial attitudes to the importance of ensuring procedural justice than confining its exercise within the limits of a strict rule subject to defined exceptions. But in practice in most cases the two different approaches are likely to lead to the same conclusion, as they did in Hadkinson itself and would have done in The Messiniaki Tolmi [1981] 2 Lloyd's Rep 595.”

52 Some Australian decisions since then have treated the question of whether a party in contempt should be heard as one of discretion: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 206 (Beazley J, Federal Court) Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (Federal Court, Foster J, 1 July 1998, unreported) at 3; Woollahra Municipal Council v Shahani (1990) 69 LGRA 435 at 439-440 (Bignold J, Land and Environment Court of NSW); In the Marriage of MKA and SH Fahmi (1995) 19 Fam LR 517 at 524 (Ellis Finn and Brown JJ, Full Court of Family Court of Australia).

53 The rule that a party in contempt may not be heard has been abolished by statute concerning some types of proceedings in the Family Court of Australia. Section 66 of the Family Law Act 1975 was in the following terms:

“The court may proceed with the hearing of proceedings in relation to a child notwithstanding that the person by whom the proceedings were instituted has failed to comply with an order of the court or of another court having jurisdiction under this Act.”

Though section 66 has now been repealed, section 69F Family Law Act is now to the same effect.

54 However the factual situation in In the Marriage of MKA and SH Fahmi (1995) 19 Fam LR 517 was not one where that abolition applied – it concerned whether a husband who was in breach of orders of the Family Court concerning maintenance of children should be heard when he applied for a dissolution of marriage. The trial judge had held that, in exercise of discretion, the husband should be heard. The Full Family Court held, at 524, that:

“… the rule that a party in contempt may not be heard is a discretionary rule and is limited, at least in its modern operation, to circumstances in which the party in contempt makes application in the same proceedings or in the same cause in which the contempt has been committed.”

55 Their Honours went on to hold, at 525, that proceedings for a dissolution of marriage were not in the same cause, or in the same proceedings, as proceedings between the parties to the marriage in which orders for property settlement or child maintenance had been made. Thus they held that, in the case before them, no question of whether a discretion should be exercised against the hearing of the application for dissolution should have arisen.

56 The reader will observe that this approach of the Full Family Court is one which holds that, to some extent, the scope of a principle whereby a party in contempt will not be heard is determined by bright line rules -- because there are certain types of proceedings, or exceptions to the principle, where the principle never provides a reason for not hearing a party -- and that, within the scope where the principle can apply, its operation is a matter of discretion.

57 The decision in In the Marriage of MKA and SH Fahmi (1995) 19 Fam LR 517, and the decisions of single judges which hold that the question of whether a person in contempt should be heard is a matter of discretion rather than of fixed rules, are ones that, with the greatest respect, I would not follow without first engaging in a more extensive analysis of the history, legal context of operation, and policy underlying why a court might sometimes decline to hear a party in contempt than was engaged in by the judges who made those decisions. I will not engage in that examination here.

58 Drummond J in Australian Securities Commission v Macleod (Federal Court of Australia, 23 November 1994, unreported) adopted the course of not deciding whether it was a matter of bright line rule or discretion whether a person in contempt should be heard. His Honour considered whether a party in contempt should be heard on the basis of discretion alone, because to do so was more favourable to the person alleged to be in contempt. In the case before him, there was no exception to the principle that might have applied, and hence if the structure of the law was that there was a bright line rule that a party in contempt would not be heard, which was subject to a number of exceptions, the party in contempt would clearly not be heard, while if it was a matter of discretion whether that party was heard would depend on the outcome of that exercise of discretion.

59 I shall not adopt that course in the present case. I do so because, in the present case, it is not apparent without further examination which of the two alternative bases (viz, that the structure of a principle whereby a court will sometimes not hear a party in contempt might be a rule which is subject to a number of exceptions, or might be purely a matter of discretion) is more favourable to the person in contempt – that will depend on what is the content of the exceptions. As well, it is not immediately apparent why the approach which is more favourable to the person who is sought to be excluded should be adopted. After all, the civil law is supposed to be administered impartially between litigants. Thus, I will consider the question on both of these alternative bases. Doing so will also cater for the possible structure of the law that was arrived at in In the Marriage of MKA and SH Fahmi (1995) 19 Fam LR 517, namely that whether a person in contempt will be heard is a matter of bright line rules so far as deciding when a contempt will not prevent a person from being heard, and of discretion within the area where no such bright line rule excludes the possibility of a person in contempt not being heard.

The Exception Requiring the Contempt to have been in the Same Cause

60 I will assume for the moment that the law in this area consists of a general rule that a party in contempt is not to be heard, which is subject to a number of exceptions.

61 It is not necessary, for the purpose of this application, to examine the full range of exceptions which have been recognised to the general principle that a party in contempt will not be heard. It is sufficient to dispose of the present application that one exception to that general principle is that it does not apply when the contempt has been committed in different proceedings to the one in which it is contended that a litigant should not be heard. This exception has become established notwithstanding that Bacon LC’s 78th Ordinance included the words “neither in that suit, nor any other”.

62 The principle that the contempt had to be in the same cause was early decided to depend upon matters of substance, not form. Holbrooke v Cracroft (1795) 5 Ves Jun 706; 31 ER 816 came from a time when both the Court of Chancery, and the Court of Exchequer, had jurisdiction to hear equity suits. In it, an action in Chancery was stayed until the plaintiff had paid the costs directed by the Court of Exchequer to be paid concerning an equity suit decided there, which was to the same effect as the litigation brought in Chancery.

63 Likewise, if a second action was in substance the same as an earlier action in the same court, and there was a subsisting breach of an order in the first action, the second action could be stayed. In the common law courts, a principle existed that where a plaintiff had been non-suited, and ordered to pay the costs, a second action based on the same allegations would be stayed until those costs were paid: Melchart & Ors v Halsey & Ors (1771) 3 Wills KB 149; 95 ER 982. That practice was adopted in equity: Pickett v Loggon (1800) 5 Ves Jun 702; 31 ER 814. It provided the basis upon which proceedings brought by the plaintiff in the second action against the defendant for contempt in failing to provide an answer were stayed until the costs of the first action were paid: Pickett v Loggon (1800) 5 Ves Jun 702 at 706; 31 ER 814 at 815-816.

64 An early trace of the exception to the general rule concerning hearing people who are in contempt in other actions is found in Wild v Hobson (1813) 2 V & B 105; 35 ER 259. It was an action brought in Chancery, by two of the next of kin of a deceased, seeking the appointment of a receiver of the deceased estate, and an account. One party, who I will refer to as the “Main Defendant” was the administrator with the will annexed of the deceased’s estate, and devisee of the deceased’s property. There had been previous proceedings in the Ecclesiastical Court, in which one of the next of kin had challenged the will on the ground of incapacity. The Ecclesiastical Court action failed. Though no order was made for the costs of that action, as it had been brought by a pauper, the Ecclesiastical Court stated that it would have ordered costs if the plaintiff in that action had not been a pauper. As well, an action brought in ejectment by one of the next of kin against the Main Defendant resulted in that next of kin being ordered to pay costs. Though security for costs had been ordered in the ejectment action, it turned out not to cover all the costs to which the Main Defendant became entitled. The plaintiff in the Ecclesiastical Court action, and the party ordered to pay the costs of the ejectment action, were each named as defendants in the Chancery action. In the Chancery action, the Main Defendant moved that the action be stayed until the costs of the Ecclesiastical Court action, and the costs remaining unpaid of the ejectment action, were paid. Lord Eldon refused that relief. His refusal was not based on the fact that the unsuccessful parties in the previous actions were defendants in the Chancery action, not plaintiffs – he recognised that they were in the same interest as the plaintiff in the Chancery action.

65 His Lordship said, at 110 of V & B; 261 of ER:

“No Instance has yet been produced of an Application to stay Proceedings, until Costs paid, or upon any other Terms, when the first Proceeding was at Law, or in the Ecclesiastical Court upon such a Subject as this, and the second in a Court of Equity.”

His Lordship was also impressed by the fact that the issues in the previous cases were different to the issues in the case before him. He said, at 111 of V & B; 261 of ER:

“A Plea could not possibly be put in: as the Matter in the Ecclesiastical Court could not be the same Issue in Fact, as that upon this Record; and, though that might be brought into Contest in the Ejectment, still this Question recurs, whether, that Ejectment having been tried without addressing the conscience of the Defendant, they are not to be at Liberty now to take that Course, until they have paid the Costs of that Proceeding; in which the Defendant had Security given to him of his own Valuation in the Court, where that Proceeding passed.”

66 His Lordship recognised that in some circumstances (not those of the case before him) a case might be one where the same issue arose in the equity proceedings as had arisen earlier in ejectment proceedings, and continued (at 112 of V & B; 261 of ER):

“… but that brings it against to the short Point I mentioned, whether the Court is to stay Proceedings, until the Costs at Law are paid, because the Plaintiff comes into Equity to ask the Defendant upon his Oath, what he knows upon the Subject; unless I am to lay down, what never was asserted, that the Plaintiff must not bring an Ejectment, until he has filed a Bill. As to the Costs of the Ejectment there is this short Ground. The Court of Law gave the Defendant Security for Costs according to his own Measure; and did not impose the Term, that a Bill should not be filed. If the Security taken was somewhat too scanty, upon what Ground am I to interfere, because that Proceedings was taken before the Bill filed?”

67 His Lordship referred to the caution with which a court ever ordered people who sued as paupers to pay costs, and continued, at 112 of V & B; 261 of ER:

“Where a Person, who in a former Proceeding sued in forma pauperis , has instituted a second Suit for the same Purpose, not being dispaupered, in the former, there is no Instance, that the Court ever stayed the second Proceedings, until he paid those Costs, not due by a former Judgment, but to become due by Taxation; unless the new Proceeding was to be justly characterized as very vexatious. In such Cases that has been done. (See Corbett v Corbett 16 Ves 407 )

68 His Lordship’s reason for not terminating the plaintiff’s action was, at 113 of V & B; 262 of ER:

“… if this is not permitted, in many Cases the poor Man will not get that, to which he is entitled, and the rich Man will withhold what he ought to give up. In this instance however there was a common Interest in the Subject; and the Ground, upon which I refuse this Motion, will do, even if there was the same Plaintiff in the three Proceedings. In that View the Combination complained of does not affect me. The Ground, on which I refuse this Motion, is, that I cannot apply to a particular Case a Principle, the general Application of which would produce enormous Mischief …”

69 Even when there had been a contempt arising from disobedience of an order of the Chancery, the party in contempt was not prevented from being heard in a different cause in Chancery In Clark v Dew (1829) 1 Russ & M 103; 39 ER 40 a testator had, by his will, left certain land, and certain “sums of stock” to the Plaintiff and the Plaintiff’s brother. The Plaintiff brought Chancery proceedings against both the testator’s heiress at law and her husband, and the devisee in trust under the will, seeking to have the trusts of the will carried into effect, and, so far as the real estate was concerned, that the question of validity of the will be decided by a jury in an action of devastavit vel non. The Plaintiff sought the appointment of a receiver until the question of the validity of the will could be decided. An Ecclesiastical Court (basing its decision on written depositions) had previously decided that the will was invalid because the testator lacked capacity, but that decision did not preclude a jury in a common law action from coming to a different conclusion. After the decision of the Ecclesiastical Court, the heiress at law and her husband brought proceedings in Chancery against the Plaintiff and his brother, to compel them to account for property which they held and to which they would have been entitled according to the terms of the will. The Plaintiff and his brother were ordered to transfer certain stock which they held. They did not do so, in consequence of which the Plaintiff had been imprisoned for contempt. He remained in prison at the time of the reported case. The defendant’s submission that the Plaintiff ought not be heard on his application for appointment of a receiver, because he was in contempt, was rejected. Lord Lyndhurst said (at 107 of Russ & M, 41 of ER):

“that the practice was the same, he apprehended, in equity, as at law, that a party could not move till he had cleared his contempt; but that the rule must be confined to proceedings in the same cause; otherwise the consequence would be, that a party, who was utterly unable to comply with an order of the Court, might be prevented from afterwards prosecuting any claims, however just, against the person, who had succeeded in obtaining that order. Here the suit was between the same parties, but it had reference to distinct properties.”

70 Nor, it seems, did it matter that the two suits were closely related, because both sought the same relief concerning the administration of the one deceased estate. In Turner v Dorgan (1842) 12 Sim 504; 59 ER 1226 an executrix had two different suits brought against her, each by different creditors of the estate, seeking administration of the estate. A decree for administration was made in the first suit. The executrix was in contempt in the second suit, for not providing an answer. She moved, in both suits, to stay the proceedings in the second suit. Sir Lancelot Shadwell VC granted the stay, but drew it up as an order in the first suit, because that was the suit in which the moving party was not in contempt.

71 In Morrison v Morrison (1845) 4 Hare 590; 67 ER 783 Sir James Wigram VC said (at 591 of Hare, 784 of ER) said: “a party in contempt is entitled, notwithstanding his contempt, to appear, and resist any proceedings taken against him in the cause.” Thus, he held that a party to proceedings in which accounts are sought, who is in contempt, is entitled to take exceptions to the Master's report on the accounts, and to have those exceptions set down for hearing. That party in contempt then made a further application to (inter alia) have the Master ordered to take accounts which had not previously been taken, from the manager of certain estates in the West Indies. The objection that he could not obtain that order because he was in contempt did not prevail, because it was (at 595 of Hare, 785 of ER) “a matter altogether free from, and totally unconnected with, the subject of the contempt.”.

72 In Chuck v Cremer (1846) 1 Coop t Cott 205; 47 ER 820 Lord Cottenham LC recognised, obiter, that the restriction on a person in contempt bringing proceedings applied only to proceedings in the same cause as that in which the contempt arose. His Lordship said:

“The Lord Chancellor said, he was of opinion that the appeal motion could not proceed. That a party was entitled to be heard, if his object was to get rid of the order, or other proceeding, which placed him in contempt, and he was also entitled to be heard for the purpose of resisting or setting aside for irregularity, any proceedings subsequent to his contempt; but he was not generally entitled to take a proceeding in the cause for his own benefit. That there were exceptions to the last rule, but they were few in number.” (emphasis added)

73 That exception has also been subsequently recognised in Fry v Ernest (1863) 12 WR 97; 9 LT 321, by the Full Court of the NSW Supreme Court in Burnett v Burnett (1903) 3 SR (NSW) 513; 20 WN (NSW) 168 in the passage quoted at para [29] above, in Bettinson v Bettinson [1964] 1 Ch 465 at 471, by the Full Court of the Supreme Court of South Australia in Short v Short (1973) 7 SASR 1 at 11; 22 FLR 320 at 330, in In the Marriage of MKA and SH Fahmi (1995) 19 Fam LR 517 at 522; in Woollahra Municipal Council v Shahani (1990) 69 LGRA 435 at 441; and in Australian Securities Commission v Macleod (Federal Court of Australia, Drummond J, 23 November 1994, unreported) at 4.

74 The defendants submitted that it was just a historical accident that Parliament had decided to establish the L & E Court as a superior court, separate to the Supreme Court, and confer upon it jurisdiction to issue injunctions to enforce town planning legislation. They submitted that there was a close connection between the subject matter of the suit in the L & E Court, and the subject of the suit in the present court, because both the proceedings in the L & E Court, and the letter about which complaint is made in the present litigation, involved attempts by the Council to enforce the planning legislation concerning the one piece of property. I do not accept that these factors are ones which justify an erosion of the exception, now well established, that the principle that a party in contempt cannot be heard is confined to contempt in the same suit as that in which the application was made.

Secundum Subjectam Materiam

75 There are many statements in judgments to the effect that a person in contempt will not be heard. But legal reasoning, like many other forms of human discourse, is able to communicate because there is an understood context in which the statement is made, and by reference to which it should be interpreted. For centuries there has been a canon of construction which was expressed in Latin as “verba accipenda sunt secundum subjectam materiam” (Words are to be understood in the context of their subject matter), or, more long-windedly, as “Sensus verborum ex causa dicendi accipiendus est, et sermones semper accipiendi sunt secundum subjectam materiam.” (The sense of words is to be taken from the occasion of speaking them, and discourses are always to be interpreted according to the subject-matter. 4 Co. 14. (Bouvier’s 1856 Law Dictionary)).

76 In the course of judgment writing, these maxims were often shortened, to refer to words being read secundum subjectam materiam. In The Australian Tramway Employees Association v Prahran & Malvern Tramway Trust (1913) 17 CLR 680 at 693, Isaacs and Rich JJ said (admittedly in a context of statutory construction) “read secundum subjectam materiam, as words in every document must be…”

77 Windeyer J in Smith v Jenkins (1969) 119 CLR 397 at 410 even said,

“Those who would explain common law principles by exotic Latin maxims ought surely to remember that these are to be understood secundum subjectam materiam. ”

78 That principle of construction has been applied many times to the reading of a court’s reasons for judgment.

79 For example, in Mutual Life & Citizens’ Association Company Limited v Evatt (1970) 122 CLR 628 at 633 the Privy Council said:

“A requirement that the existence of a similar characteristic is necessary in order to attract a duty of care is not stated unequivocally in any of the speeches in Hedley Byrne [1964] AC 465. But those speeches, like all judgments under the common-law system must be understood secundum subjectam materiam . The fact that the characteristics were present in the relationship between the maker and the recipient of the statement under consideration in Hedley Byrne [1964] AC 465 made it unnecessary for those who expressed the reasons for their decision of the case to direct their minds to the question whether the terms in which the reasons were expressed would have called for some qualification in their application to cases where those characteristics were absent--as they are in the instant appeal.”

80 In Italiano v Barbaro (1993) 40 FCR 303 at 325 Neaves, Burchett and Whitlam JJ said:

“It is true that in Gala v Preston (1991) 172 CLR 243 at 254 the joint judgment of Mason CJ, Deane, Gaudron and McHugh JJ contains a statement that:
“the onus lies on the party who asserts that, by reason of special and exceptional facts, the ordinary relationship of a driver towards a passenger is transformed into one which lacks the requisite relationship of proximity to give rise to a relevant duty of care.”
The logic of this statement is plain; proof that the plaintiff was a passenger in a car driven by the defendant, no qualifying fact being evidenced, is proof of a relationship which creates a duty of care. But every statement in a judgment must be read secundum subjectam materiam . Where it is established that the driver and passenger in question had joined in an arrangement to bring about a collision deliberately, the logic of the statement in the joint judgment, as applied to the actual situation in this appeal, simply disappears; the relationship of driver and passenger is not “ordinary”. In such a case the plaintiff is remitted to his initial position of a party alleging a cause of action, who must in general discharge the onus of establishing each of its essential elements.

81 The principle that a judgment needs to be read taking general words in it in their context has been applied on many occasions in the High Court, eg Shaddock v Parramatta City Council (1980) 150 CLR 225 at 234, 240; Australasian Catholic Assurance Company Limited v Federal Commissioner of Taxation (1959) 100 CLR 502 at 508; The Commonwealth v Bank of New South Wales (1950) AC 235, at 308; (1949) 79 CLR 497, at 637, 638; James v Federal Commissioner of Taxation (1955) 93 CLR 631 at 642;

82 The rationale of the principle was explained, in the context of construction of a patent specification, in Martin v Scribal Pty Ltd (1954) 92 CLR 17, when Dixon CJ said (at 62-63):

“Clearly enough the unqualified words do not mean that in all conditions which the pen may encounter a continuous vein will be maintained extending from the ball. It is not, for example, referring to ill-usage. What the specification and the claim are talking about is the way the pen writes ... Would the words be naturally understood as going beyond the ordinary commonplace way of writing? It is a general unqualified statement but it is evident that what logicians call a `universe of discourse' is presupposed. It is to be read secundum subjectam materiam . I think that it would be read simply as describing what occurs in the pen when it is used in an ordinary way. The claim and the specification should be construed as it would be ordinarily understood.”

83 In accordance with that principle, one therefore needs to look at the context in which courts have made statements that a person in contempt is not to be heard.

84 One finds that cases which have made broad statements to the effect that a person in contempt will not be heard, and cases which recognised some exceptions to a general principle that a person in contempt will not be heard, but which did not recognise an exception applying when the contempt had not arisen in the same proceedings, are ones in which the contempt in question had arisen in the same proceedings as those in which the person in contempt sought to be heard. Such cases include Green v Green (1828) 1 Coop t Cott 206; 47 ER 820; Bishop of Derry v Tyler (1834) 1 Coop t Cott 222; 47 ER 829; Ellice v Walmsley (1835) 1 Coop t Cott 207; 47 ER 821; Barker v Dawson (1836) 1 Coop t Cott 207; 47 ER 821; Parry v Perryman (1838) 1 Coop t Cott 207; 47 ER 821; Needham v Needham (1845) 1 Coop t Cott 208; 47 ER 821; Marchant v Dunlop (1927) 44 WN (NSW) 108; Hadkinson v Hadkinson [1952] P 285; Price v Price (No 2) (1961) 4 FLR 40; 80 WN (NSW) 363; McM v C (No 1) [1980] 1 NSWLR 1; and Young v Jackman (1986) 7 NSWLR 97. Reading those cases secundum subjectam materiam, the general statements of principle in those cases should not be applied to a fact situation which is a different type to that with which those cases were concerned. Those general statements of principle do not preclude there being an exception or qualification concerning a matter which did not arise in the case in which the general statement of principle was made.

85 I conclude that, if the structure of the principle whereby a court will sometimes not hear a party in contempt is that it is a bright line rule which is subject to a number of exceptions, the present application comes within an established exception.

Considered as a Matter of Discretion

86 I turn now to consider the situation if the structure of the principle whereby a court will sometimes not hear a party in contempt is that it is a matter of discretion.

87 At the outset, I note that it is not suggested that the discretion that a judge might exercise in deciding not to hear a person in contempt is a completely open-ended or unguided one. If it is to be a discretion which is exercised judicially, it needs to be one which aims at achieving an objective or objectives which are able to be stated as a matter of law, or to involve a balancing of factors which can be said, as a matter of law, to be ones which are appropriate to take into account for the purpose of exercising that discretion. Only one standard has been invoked, as the objective which is sought to be advanced by sometimes declining to hear someone who is in contempt, by the judges who have favoured it being a matter of discretion whether a person in contempt should be heard. That standard is what is appropriate for the administration of justice.

88 The extent to which it has been seen as appropriate for a person who has transgressed the law in some respects to be denied access to the law concerning other matters has changed with time. Outlawry involved someone who had breached the law being put totally outside the protection of the law. However it has long been obsolete, and seems to have been, even when in vogue, only of patchy effectiveness. Potter, An Historical Introduction to English Law and its Institutions, 3rd ed 1948 says at 340:

“Primitive law could not measure its blows; he who defied the law was outside it. An outlaw was treated as a wild beast, a wolf’s head who any man might slay. He had ceased to be a member of the community because he failed to observe its rules. Such a punishment represents an early stage in the life of a community: when the State is too weak to compel obedience among its members it can only threaten loss of membership as a penalty for grave wrongs… From the first written law ( circa 600), however, outlawry was reserved as a punishment for the worst offences. With the growth of the authority of the State outlaw it ceased to be used so much as a punishment, and became principally a means of compelling submission to the judicial tribunals of the country.”

89 Baker, An Introduction to English Legal History, 3rd edition 1990 says, at 77:

“Outlawry was an elaborate rigmarole, requiring the sheriff to “exact” the defendant by calling upon him to come forth at five successive county assemblies. But it was not as terrible as it sounded. It could easily be reversed for formal slips, and technical escape routes seem to have been left almost as a matter of course; if all else failed, an outlawry could be pardoned on payment of a pound or two to various officials. The Robin Hood legends have preserved an image of outlaws as desperate outcasts; but by 1400 outlawry was not usually much of an inconvenience, and even royal officials could continue in office while outlawed. (Elizabeth I is said to have complained at the number of outlaws sitting as members of parliament.)”

90 Plucknett, A Concise History of the Common Law, 5th edition 1956, page 397-8, says of outlawry:

“Its traditional machinery was slow, but crushing. When it was felt that it was too severe, reform took the shape, not of modifying the nature of mesne process, but of insisting upon extraordinary accuracy in every detail of the outlawry procedure. This terrible engine was fitted with prodigious brakes, therefore, and so its energy, which might have been usefully applied, was carefully neutralised. The result frequently was that when it ought to have moved it did not, while at other times it might unexpectedly get out of control. The law of outlawry thus became notoriously tricky and ineffective.”

This attempt at a thorough-going deprivation of access to the law for someone who has in one respect disobeyed the law does not sound much like a model for the administration of justice which is worth reviving.

91 There was a more limited common law rule whereby a person convicted of a capital felony was denied all access to the courts, even if the death sentence was committed to one of imprisonment, and the felon allowed out of prison on licence: Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; Burns Philp Trustee Co Ltd and others v Viney and Another [1981] 2 NSWLR 216). However that rule has ceased to be of practical relevance as there have come to be either no, or only a very small number, of convicted capital felons still alive.

92 Even so, although it is a serious thing to deny a citizen access to the courts for the purpose of having a civil dispute decided, there are numerous circumstances in which the proper administration of justice still permits that course to be taken. Examples are where hopeless proceedings or vexatious proceedings are summarily disposed of, actions are disposed of when the plaintiff has failed to prosecute them, when the case is an appropriate case for provision of security for costs and that security is not provided, when an issue in the case is one the court cannot decide by reason of a res judicata or an issue estoppel or an Anshun estoppel, when running a civil case would unduly interfere with a pending criminal case (McMahon v Gould (1982) 7 ACLR 202; 1 ACLC 98; Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26), sometimes when interlocutory orders (such as orders for costs, for providing discovery, for answering interrogatories, or for providing particulars) are not obeyed, or when the plaintiff is a person who has been declared a vexatious litigant. Sometimes a person does not have an unfettered right to bring litigation in a court - eg a minor or an incapable person can act only through another person who is of full capacity, a bankrupt’s capacity to bring actions is restricted by section 60 Bankruptcy Act 1966 (Cth), and sometimes one of the consequences of the rights of an alien being sometimes less than those of people who are not aliens (Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 29-32, 57, and 65; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492) is that their access to the courts is less, or less effective, than that of people who are not aliens. Further, section 4 of the Felons (Civil Proceedings) Act 1981 prevents a person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence from instituting any civil proceedings in any court except by leave of that court. However, the restriction on access to the courts contained in section 4 Felons (Civil Proceedings) Act 1981 applies only to people in custody, only to people convicted of a serious indictable offence (which means an indictable offence punishable by imprisonment for life or for a term of five years or more -- section 21 Interpretation Act 1987), and is construed so that even if proceedings are commenced without leave by a person who is in custody and has been convicted of a serious indictable offence, that leave can be granted nunc pro tunc, and whether leave is granted depends upon whether the proceedings amount to an abuse of process or whether there is no prima facie ground for them: Jol v State of New South Wales (1998) 45 NSWLR 283.

93 Sometimes in these examples of depriving a would-be litigant of access to the courts the focus is on what is appropriate for the administration of justice between the particular parties to the litigation in question, while sometimes the focus is more on what is appropriate for the administration of the system of justice as a whole.

94 There are cases where it is offensive to the proper administration of justice for a person who has committed a contempt of court to be heard. One asks why should the court provide its assistance to a person who has demonstrated, that he or she is not prepared to take an order of the court seriously? But that question can sometimes be answered. Though this is not a situation where the maxim that he who seeks equity must do equity always applies (because there can be situations where a person who is in contempt seeks a remedy from the court which is not an equitable one, and that maxim applies only concerning the granting of equitable remedies or the enforcement of equitable rights), there is some similarity of policy involved. Just as the maxim that he who seeks equity must do equity requires that equity be done concerning the topic on which the court’s help is sought, not concerning something separate and apart from it, so there needs to be a connection between the topic on which the court’s help is sought, and the matter concerning which the contempt has been committed.

95 If one adopts, in this case, the focus upon the administration of justice in the present case, the connection between the case in which the contempt occurred and the present case is such that justice can be achieved in this case even while the defendant remains in contempt of the L & E Court. The issues in the present case are different to those in the L & E Court, and there has been no defiance of the authority of this Court concerning this case.

96 A factor which is relevant if one adopts the focus of the administration of the system of justice as a whole is that contempt of court is in many ways analogous to a crime: Witham v Holloway (1995) 183 CLR 525. The procedures for sentencing that apply under the Crimes (Sentencing Procedures) Act 1999 apply to the imposition of a sentence for contempt of court: Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 at 536-537. The purposes of sentencing are stated by section 3A of that Act to be:

“(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community”

97 Achieving the objects which parliament has stated for criminal sentencing is an aspect of the administration of justice which ought be taken into account in deciding how wide-spread deprivation of access to the courts ought to be, for a person who has committed a contempt of court. To the extent to which a person found guilty of contempt of court is automatically deprived of access to the courts as a consequence of that contempt of court, the punishment which flows from the contempt is less finely controlled than it otherwise might be. Indeed, to the extent to which there is automatic deprivation of access to the courts as a consequence of the committing of a contempt, a person who has committed a contempt of court is in a worse situation than is a person who is in custody and has committed a serious indictable offence, who can obtain leave to bring proceedings in an appropriate case. The objects of criminal sentencing seem better able to be achieved if the question of whether a person who has committed a contempt should be deprived of access to the courts depends on whether the permitting of access, in the instant case, would be consistent with the proper administration of justice.

98 Further, because of the seriousness of denying someone access to the courts, if the administration of justice, concerning the matter in which the contempt has been committed, can adequately be carried through without denying access to the court in some other application, then there is no occasion for denying that access. It is to some extent an inroad on the proper administration of justice whenever an order of a court is not obeyed – but each court has its own procedures for enforcement of its own orders, which are adapted to the particular breach that has occurred. The proper administration of justice, when an order of the court is not obeyed, involves, at least at first, following through the procedures for enforcement of the court which made the order in question, not automatically declining to hear the person in contempt in an application which is not intimately connected with that contempt. It is, it seems to me, likely to be considerations like these which have underlain the recognition of the “exception” whereby a person in contempt can be heard if the contempt was committed in another cause to that in which the person in contempt seeks to be heard.

99 Whether a person in contempt of court should be heard depends on the particular contempt which has been committed. The contempt which is alleged in the present case is the one which the L & E Court has already found that the plaintiff has committed (paras [5] and [10] above). The reason why it is alleged to be unpurged is because the fine relating to it has not been paid. There is no allegation in this application that contempt by continuing to disobey the injunction granted on 29 June 2004 (para [3] above) is occurring, nor that there is any contempt in the plaintiff having failed to pay the various costs orders made against it in the L & E Court.

100 The Fines Act 1996 lays out a detailed procedure, with a series of graduated steps of increasing severity which can be taken for the enforcement of fines which are unpaid. Section 10 permits an application to be made to extend the time for payment of a fine, or to allow it to be paid by instalments. Section 11 permits such an application to be made even if there has been an earlier such application. The State Debt Recovery Office is empowered by section 12, to make a court fine enforcement order. That order must contain certain prescribed information (section 60) and be served on the debtor (section 61), and give a final date for payment which is at least 21 days after it is served (section 63). If by that date the fine has not been paid, or an extension permitted, (section 65) the Roads and Traffic Authority must suspend any driver’s licence of the defaulter for the balance of the period of the licence (section 66(1)). If the fine continues to be unpaid for six months beyond the due date, the Roads and Traffic Authority must, if so directed by the State Debt Recovery Office, cancel the defaulter’s drivers licence (section 66(2)). As well, the Roads and Traffic Authority can cancel the registration of any motor vehicles of which a fine defaulter is the registered owner (or one of the registered owners) (section 67). If those methods of enforcement are not available against a particular debtor, or fail, enforcement action may be taken by a property seizure order, a garnishee order or a charge on land, or by all or any of those means (section 71(2)). Further, the State Debt Recovery Office can issue an examination summons against the fine defaulter (section 75). If those methods of enforcement do not succeed, a community service order may be made (section 79). That community service order may be revoked if the fine defaulter fails without reasonable excuse to comply with it (section 86(1)). If the community service order is revoked, the fine defaulter may be committed to jail (section 87). All of those methods of fine enforcement are available against a body corporate, other than community service orders and imprisonment (section 98).

101 When legislation provides all these means by which the fine which was imposed on the plaintiff in the L & E Court may be enforced, I do not conclude that a general objective of protecting the administration of justice by taking steps so that court orders are not flouted requires this court, in this application, to refuse to hear the plaintiff.

102 For these reason, if the matter were a matter of discretion, I would permit the plaintiff to be heard in its interlocutory application.

1. The plaintiff is free to proceed with its application for an interlocutory injunction.

2. Defendants to pay plaintiff’s costs of the preliminary point.

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08/09/2005 - Further catchwords added - Paragraph(s) coversheet