Leigh v Bruder Expedition Pty Ltd (ACN 603551579)

[2023] HCATrans 167

[2023] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B6 of 2023

B e t w e e n -

TRACY LEIGH

Applicant

and

BRUDER EXPEDITION PTY LTD (ACN 603551579)

Respondent

Application for special leave to appeal

GORDON J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 17 NOVEMBER 2023, AT 2.31 PM

Copyright in the High Court of Australia

GORDON J:   I will announce the appearances for the parties.

MS R.M. O’GORMAN, KC appears with MS K.E. SLACK for the applicant.  (instructed by the Sparke Helmore Lawyers)

MR M.D. MARTIN, KC appears with MR M.W.P. ZIEBELL for the respondent.  (instructed by Mills Oakley)

GORDON J:   Ms O’Gorman.

MS O’GORMAN:   May it please the Court.  I wish to make some brief submissions with respect to three matters:  firstly, why it is that this appeal would involve a question of law of public importance; secondly, why it is in the interest of justice for a grant of special leave to be given in this case; and thirdly, I wish to say something about the relevance or, as we would have it, the irrelevance of section 126 of the District Court of Queensland Act to the present matter.

This appeal would raise questions about the exercise of judicial power to make court orders.  In particular, it raises the question of what is required to be done for an order to be validly made.  This is a question of public importance because the judicial power to make orders is exercised in our courts on a daily basis and it is important that they would be validly made.  Certain orders, such as the one involved in the present case, compel individuals to do, or to refrain from doing, nominated acts with the consequences they may be found guilty of and punished for contempt if the order is breached.

Punishment for contempt exposes an individual to a risk of imprisonment.  Thus, the binding nature of judicial orders and the serious consequences that can flow from their breach underscore the public importance in ensuring certainty about the requirements for the making of orders.  If I can turn to why it is that we say that the interest of justice requires consideration of the judgment below.  At the end of the trial, there was discussion between the parties and the learned trial judge about the terms of the order sought by the now respondent to restrain the applicant from doing certain acts.

The trial judge requested counsel send through a written document reflecting that discussion and indicated that she would sign it and place it with the file.  We would say that something more than the discussion about the terms of the order that took place needed to be said or done by the judge in order for the order to have been pronounced in court, as required by rule 660(1) of the Uniform Civil Procedure Rules.

In determining that the order had been pronounced in court, the Court of Appeal referred with apparent approval to what Associate Judge Mukhtar said in O’Grady to the effect that the need for a formal pronouncement is:

problematic and unreal in the day to day work of the courts –

But secondly:

there needs to be “some form of pronouncement in a way to reveal objectively that an order is being made; that is, judicial authority has been exercised –

We would say here that there was no pronouncement made to reveal, objectively, that an order was being made in court.  Rather, the discussion suggested that the trial judge intended to make the proposed order on being provided with it by counsel in chambers after court adjourned.  To the extent ‑ ‑ ‑

GORDON J:   What do you say should have happened?

MS O’GORMAN:   We would say that there should have been some form of words said to indicate that order being discussed was being made by the judge with terms to be finally settled upon being received by her after court adjourned, if that is what was necessary.  Alternatively, of course, court could have resumed once the final terms of the order had been reduced to writing as agreed between the parties.

GORDON J:   Can I just ask you to go to application book 28 to 29, which sets out, as I understand it, the facts which arose in this case, and that records the conversations and discussions between Bench and Bar before Justice Sheridan’s actions are recorded.  At the top of page 29, after the discussions, is it that the judge says, please send it over and I will sign it and place it with the court file – is that the point at which you complain?

MS O’GORMAN:   Not only that, your Honour, because that was not the conclusion of the discussion.  That occurred partway through the discussion between the parties and her Honour, and then there was some further discussion.

GORDON J:   You are right to correct me.  There is the further conversation at paragraph [9]. 

MS O’GORMAN:   Yes, that is so, because the conversation, as your Honour has identified, continued, as summarised in paragraph [9], for some time with some discussion about her Honour the learned trial judge’s concern to make sure that the order was in the terms that the parties intended, and so on.  Then there was discussion about whether there needed to be a provision about what was then being discussed.  Her Honour said that, no, maybe “that is quite clear”, and went on to say, if I am persuaded then I would have to provide an order that varied the terms of those previous orders, and said, “I’m satisfied that works”, the inferred intention being that after that point in time the orders would be reduced to writing and sent through to her Honour.

GORDON J:   So, that statement in paragraph [9] that:

Both counsel indicated their agreement with that by saying thank you to Judge Sheridan and she said “So if you could have that sent through –

Is that the point at which you said there was no proper exercise of judicial power giving rise then to the ultimate order being made?

MS O’GORMAN:   Well, at that point, your Honour, but at that point and throughout the preceding discussion we say there is clearly discussion about the intention of the order that would be made and the appropriate terms of such an order, and it was debated back and forth between the parties and her Honour the learned trial judge, but that what was said by her Honour fell short of a pronouncement, whether in formal language or otherwise, that an order was in fact at that time being made, as distinct from an intention that the order in the terms being discussed would be received and then made at some point thereafter.

Of course, your Honour Justice Gordon can see at paragraph [10] on that page, 29 of the application book, that in fact the order was sent through by one of the parties’ counsel some time thereafter and then emailed by her Honour’s associate to the parties at 6.06 pm that afternoon.

GORDON J:   Was there objection taken at that point in time to the terms of the order?

MS O’GORMAN:   The point in time at which it was emailed to the parties at 6.06, your Honour?

GORDON J:   Or again on 6 November, which is the footnote.

MS O’GORMAN:   No, there was objection taken to the terms of the order at that time.

GORDON J:   Thank you.

BEECH‑JONES J:   Ms O’Gorman, the inference is available, is it not, or we should act on the basis that counsel who signed the order discussed it with their client?

MS O’GORMAN:   I know that there has been, in the proceedings below, some uncertainty about the extent of discussions between counsel and the client, or the solicitors and the client of that point, given that the client had left.  Certainly, inferences can be drawn that there were some discussions.  As to the details of them, they do not appear from the record.

BEECH‑JONES J:   At some point could you – at page 15 of the book at the top is the terms of the concession that was said to have been made on your client’s behalf before Judge Clare, who I think found the contempt proved.  What do you say about – I am sorry, application book 39.  I do apologise.  Paragraph [46] of the Court of Appeal.  In terms of attacking or setting aside Judge Clare’s finding, how can either the Court of Appeal or this Court go behind the concession?

MS O’GORMAN:   Can I address it in this way.  The time that that concession was made, there was no transcript of what had transpired before the court, and Judge Clare in particular.  By the time the matter came on for hearing in the Court of Appeal – which appeal, of course, was to be conducted by way of rehearing – the transcript was available, and the Court of Appeal did in fact proceed to determine the appeal on the basis of what the transcript revealed.  So much is apparent, of course, from page 41 of the application book, under the heading “Power of inferior courts to make orders” and following through to page 43, at paragraph [70], because therein, of course, the Court of Appeal did in fact go on to consider whether, as a matter of fact, the order had been made irrespective of whether the concession was relevant to the court’s consideration.

GORDON J:   If you go through to paragraph [70], on page 43, in a sense is it that the application is really a question about revisiting the conclusions drawn in [70] from the transcript?

MS O’GORMAN:   The application would involve – well, the appeal would involve a contention that a different conclusion ought to have been reached than that which was reached at paragraph [70], but we would contend that it is not simply a question of fact, it needs to be, really, a question of law as to what the minimum requirements for the making of an order by a court, pursuant to rule 660 of the UCPR, in fact is.  If I might return, then, to some submissions that I was making with respect to the context of the making of the order.

We would say that to the extent that there can be said to be any ambiguity in relation to whether the discussion between the learned trial judge and counsel appearing on the afternoon of the trial in relation to whether the discussion amounted to pronouncement in court which objectively revealed that an order was made, that must be resolved in the applicant’s favour because a person may be found guilty of contempt, or because before a person may be found guilty of contempt, the elements of contempt must be proved beyond reasonable doubt.

Here, the pressing whether or not an order was made by the court is, of course, the very first element of the contempt charge against the applicant.  That each element of a contempt charge must be proved beyond reasonable doubt – whether or not the contempt might be characterised as a civil or criminal contempt, beyond a reasonable doubt has been clear since this Court’s decision in Witham v Holloway.

We would say that the requirement for proof beyond reasonable doubt of the elements of contempt highlights the need for there to be certainty regarding the question of whether the order was pronounced in court, and therefore made by the court.  Particularly in respect of orders such as here, the breach of which might give rise to a charge of contempt and expose an individual to a risk of imprisonment.  Whether the requirement for certainty is to be resolved by way of a test of discernible intention on the part of the judge or objective certainty that an order has been made, both tests of which were considered by Associate Judge Mukhtar in O’Grady, was not finally decided in that case, or, we would say, by the Court of Appeal in this case.

So, as that – although O’Grady and the Court of Appeal decision in this case, at least by reference with approval to O’Grady, provide some guidance as to the minimum requirements needed to establish that an order was made, there remains ambiguity as to both those minimum requirements necessary and the tests which ought to be applied in determining them.  We would say, to that extent, there is utility in this Court providing that guidance and thus the interests of justice, both in this case and generally, require a grant of leave.

I turn then to some very brief observations about the respondent’s submission that orders may be made, and often are made, by judges in chambers, and that such a course is permissible by virtue of section 126(1) of the District Court of Queensland Act.  Those submissions can be found at page 63 of the application book.  We would say, first, section 126 does not have that effect, section 126 provides for two things: firstly, that the business of the court is taken to be conducted in the District Court of Queensland “wherever it is conducted”, that is, whether it is conducted in the district of Toowoomba, or Brisbane, or elsewhere.

That simply makes it clear that although there is a single District Court of Queensland, the court may sit or be held at any place declared by regulation, and so much is made clear when section 126(1) is read in conjunction with sections 6, 7, and 8A of the Act, and, of course, section 126, importantly, provides that the business of the Court is to be “conducted in open court”, unless the court limits the extent to which it is open to the public.

Section 126 does not have the effect of providing that orders may be made in chambers or elsewhere outside court.  The District Court Act does not say anything about the requirements for the making of orders at all, which is why, of course, regard must be had to section 660 of the UCPR.

The second thing we would say about that submission by the respondent is that – that is, the submission that section 126 does permit orders to be made orders to be made outside of court, and its reference to orders often being made by judges in chambers, tends to underscore the ambiguity that exists, at least in Queensland, as regards to statutory requirement for the making of orders.  So, the interests of justice require that such ambiguity be dispelled, of course, and we would say that this case is the appropriate vehicle for doing so.

Those are my submissions.

GORDON J:   Thank you, Ms O’Gorman.  Mr Martin.

MR MARTIN:   Yes, thank you, your Honour.  Can your Honour hear me?  I have just unmuted.

GORDON J:   We can hear you very well, thank you.

MR MARTIN:   Thank you, your Honours.  We wish to deal with the concession point first, as raised by Justice Beech‑Jones.  The Court of Appeal – in particular, Justice Dalton, with whom the Chief Justice and Justice Morrison agreed – found, firstly, that the concession made at the trial before Judge Clare that an order had been made should bind the parties, and in particular, should bind the applicant.

Her Honour quite properly referred to the decision of the High Court in Metwally and then carefully analysed the circumstances in which the concession was made, and said that there was no exceptional circumstances which justified a departure from the concession that was made at first instance; keeping in mind that this is a civil proceeding, not a criminal proceeding.  The standard of proof is different, because it was contempt, but this is a civil proceeding, and there is nothing in the application which indicates how Justice Dalton fell into error in finding that there were not exceptional circumstances and that the applicant should be bound by the conduct of the case at first instance.

There is a reference in the applicant’s outline, which appears at application book 58 at paragraph 42, to the later decision of the High Court in Coulton v Holcombe, and in particular a reference to the judgment of Justice Deane.  But I remind the Court, of course, that Justice Deane dissented in that case, and the majority, the then‑Chief Justice Gibbs, Justice Wilson, Brennan and Dawson, at page 7, said that an appeal is not a complete rehearing, that is, a complete free-for-all or almost a de novo.  And at page 8 they specifically referred to that part of the passage of Metwally upon which Justice Dalton relied to say that a party, unless there is exceptional circumstances, is bound by their conduct of the trial at first instance.

Now, the other point, of course, is that no special leave point is articulated in relation to the concession.  What is said is that the concession is, in fact, to be ignored once the Court of Appeal considered the transcript as at first instance – and that appears at paragraph 14 of the submissions in reply at appeal book page 73.  With respect, that just must be wrong, because what the Court of Appeal quite properly did was they considered the concession point first, and found that against the then‑appellant, who is now the applicant, but went on to consider the question of whether an order had been made.  The fact that they considered the transcript does not mean that the concession has to be ignored.

Now, once we get to the point where the applicant does not overcome the concession made at first instance, this application must fail.  I then turn to whether an order was actually made.  As your Honours have pointed out, this is a factual inquiry in relation to what transpired between counsel at the conclusion of the trial.  There is no matter of principle involved in determining that factual inquiry.  There are numerous cases about what amounts to propounding an order or making an order, and this was determined on the particular facts of this case.

It also must be kept in mind that this is a case where the form of order was specifically agreed by counsel who appeared at the trial and the trial judge, Judge Sheridan.  It is not the case, as we see in some of the authorities relied upon by the applicant, where there was a judgment given in chambers and then merely posted to the parties.  The terms of this order were agreed, and all that happened that was not in open court, and I will turn to this, was the signing of an order that had been agreed.  On any construction of those facts, the appropriate inference, as Justice Beech-Jones referred, to be adopted by the Court of Appeal was that an order was made in court on the afternoon of 1 November.

The other point that we raise is that even if we are wrong about that, a judge, even of a District Court, being an inferior court, does have power to make orders in chambers.  The construction of section 126 of the District Court of Queensland Act propounded by our learned friends is, with respect, not correct.  That section provides in subsection (1)(a) that:

The business of the court –

(a)is taken to be conducted in court wherever it is conducted –

That is not a reference to the various registries of the court or whether the District Court is sitting in Brisbane or at the Gold Coast or Townsville or Bundaberg, but it is a reference to wherever the business of the court is conducted, and the cases and practice demonstrates that for the more than a hundred years, courts have been sitting in this country and for longer than that in England, that courts conducted business not always in court but in judges’ chambers.  Orders are signed every day of the week by judges in chambers both at first instance and on appeal.

Now, we referred in our outline to the decision of Justice Campbell in King Investment Solutions v Hussein, a decision in 2005 of the New South Wales Supreme Court, where his Honour there referred to an order that was made in chambers and his Honour referred to section 11 of the Supreme Court Act of NSW 1970 which provided that:

(1)The distinction between court and chambers is abolished.

(2)The business of the Court, whether conducted in court or otherwise, shall be taken to be conducted in court.

Now the second part of that is identical to section 126(1)(a) of the District Court of Queensland Act.We can inform your Honours that the law in Queensland since 1998 has been that the distinction between court and chambers is abolished.  That came in the Civil Proceedings Act and then it has subsequently been amended so it now appears in section 149 of the District Court of Queensland Act which says any reference to chambers is now taken to be a reference to court.  And we see the same provision in section 93 of the Supreme Court of Queensland Act.  So, there is no relevant distinction, or there is no distinction between “court” and “chambers” in Queensland. 

So, the legislation referred to by Justice Campbell in King Investment Solutions v Hussein is particularly apposite here, as is paragraph 147 of his judgment.  So, our submission is that when Judge Sheridan signed the agreed order in her chambers on the afternoon of 1 November, she was conducting the business of the court – and that is taken to be conducted in

court – and then emailed that order to the parties, which had been agreed, and that therefore complies with order 660(1)(a) about an order being pronounced in court.

The applicant relies upon section 126(1)(b) of the District Court of Queensland Act, with the reference to “open court”.  Now, that is a different consideration.  That is, the requirement – as we see from the common law – that, wherever possible, the proceedings in any court, certainly in Queensland, are to be conducted in open court, unless the court orders others.  That is, it is open to the public to be heard.

That does not mean that the business of the court, in particular the signing of an order, has to be in open court, provided the court is conducting its business – wherever it is conducted, in accordance with the legislation – it is an order that is taken to be, or business is taken to be conducted in court.  Keeping in mind that the only function of Judge Sheridan that she performed that was not in open court was the signing of an agreed order.  So, in our submission, an order was propounded either on the proper construction of the factual scenario of the exchange between counsel and the judge, or, in any event, on a proper application of the legislation.

Your Honours, can I just conclude by making some submissions about the administration of justice in this particular case.  As I said at the outset, this is not a criminal case.  It is a civil case.  And the applicant was not sentenced to a term of imprisonment – so her liberty is not in question.  She was sentenced to 200 hours of community service.  The applicant put on no evidence at all, at first instance.  She put the applicant to proof.  And also, of course, one of the publications which amounted to a contempt – and this is how it was proved that the applicant had knowledge of the orders – specifically referred to being precluded from saying anything about the subject matter of the proceedings.

In the absence of any other evidence, the trial judge found that, based upon that post, that could only have been a reference to the order that had been made, and that was argued on appeal unsuccessfully, and it is not agitated here.  So, all of those reasons, we would submit, there is no point of principle, this is a case that is confined to its particular facts, and no grant of special leave should be made.

Those are our submissions.

GORDON J:    Thank you, Mr Martin.  Ms O’Gorman, anything in reply?

MS O’GORMAN:   Yes, four brief matters, your Honour.  In our submission, Metwally, having been decided in such a different context to the present place, has no application.  Of course, Metwally concerned the respondent’s attempt there to have the High Court revisit orders made earlier by arguing the case differently to how it had been argued on the earlier occasion.  This is a different situation concerning an appeal to the Court of Appeal, where the order was made, was in fact an element of the contempt charge, which had to be made out beyond a reasonable doubt, that puts this situation in a different light than Metwally.

Even if Metwally does apply, that standard of proof and the availability of the transcript by the time of the Court of Appeal hearing amounts to exceptional circumstances in any event.  I note here – or I move on from the significance or otherwise of the concession – that at a number of times in the Court of Appeal, the respondent did concede that the order was not pronounced in court, which is different to some of the submissions now being sought to be made by the respondent.  So, to the extent that there have been concessions, away from which either party would like to move, it has been done on both sides.

My learned friend said that the order was expressly agreed by counsel in support of his position.  We would say that that is not to the point.  Whether or not there is express agreement between counsel, there is a fundamental requirement in our system of justice that orders be made in open court in the ordinary course of events.  The agreement between counsel is not determinative.

My learned friend also said that all that happened was the signing of an order after the discussion that had been taking place had in fact been agreed.  We would say two things.  There is a distinction between agreeing on the terms of an order as between counsel, and even counsel and a learned trial judge, and the making of an order – there are two entirely separate tasks or activities.  In any event, the reference to the signing of an order is, of course, a reference to section 661 of the UCPR, which requires – or deals with the requirement for filing of an order – and deals with signing of an order in that context.

Finally in respect of my learned friend’s references to section 126, we would make the following points.  Section 126 refers to “court” with a small “c”; section 3 of the same Act defines “court” as the District Court of Queensland.  So, when read in that way, it is apparent that “the court” that section 126 provides is that the business of the District Court of Queensland is taken to be conducted in the District Court of Queensland wherever it is conducted – which must be a reference to the location, not to whether or not the court is conducted elsewhere other than in court.

But I might say, just by way of finalisation, then, that is quite different to the reference to King Investment, where in that case the

statutory provision would refer to the “Court”, capital “C” and small “c”, making it clear that the Supreme Court of New South Wales can conduct its business whether in court or otherwise – quite a different scenario to Queensland, where we have no provision that abolishes the distinction between court and chambers and where there is no provision for the making of orders in chambers.

Thank you, your Honours.

GORDON J:   Thank you.  The Court is of the view that the application does not identify a point of principle of general importance appropriate for the grant of leave to appeal, and it would not be in the interests of the administration of justice generally or in the particular circumstances of this case to grant leave.  Special leave to appeal is refused.  Do you seek costs, Mr Martin?

MR MARTIN:   Yes, I do, your Honour.

GORDON J:   Ms O’Gorman?

MS O’GORMAN:   It should not – with respect to the making of costs in the application, your Honour, I do not have anything further to say with respect to that.

GORDON J:   Thank you.

MS O’GORMAN:   I note that we appear pro bono and that the applicant is a pensioner.

GORDON J:   Thank you.  Special leave to appeal is refused with costs.

The Court will now adjourn until 9.30 am on Tuesday 21 November.

AT 3.04 PM THE MATTER WAS CONCLUDED