Markisic v Commonwealth of Australia

[2007] NSWCA 92

Reported Decision: 69 NSWLR 737

New South Wales

Court of Appeal

CITATION:	MARKISIC v COMMONWEALTH OF AUSTRALIA & ANOR [2007] NSWCA 92
HEARING DATE(S):	30 March 2007
JUDGMENT DATE:	23 April 2007
JUDGMENT OF:	Campbell JA at 1; Handley AJA at 86; Bell J at 87
DECISION:	(1) Appeal dismissed. (2) Appellant to pay costs of Respondents.
CATCHWORDS:	CONTEMPT – civil and criminal contempt – where no appeal from acquittal of charge of criminal contempt – distinction between civil and criminal contempt – whether charge was of civil or criminal contempt – Supreme Court Act 1970, section 101 – Australasian Meat Industry Employees’ Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98 – Witham v Holloway (1995) 183 CLR 525 - CONTEMPT – subpoena to produce documents – alleged failure to comply with subpoena – elements to be proved to establish a contempt of this type – that alleged contemnor had documents of the type called for by the subpoena – mental element of the contempt – standard of proof requires proof beyond reasonable doubt – Witham v Holloway (1995) 183 CLR 525 - - COURTS AND JUDGES – bias – actual bias – whether trial judge displayed actual bias - - PRECEDENT – proposition of law assumed to be correct but not argued or considered in earlier decision – whether binding
LEGISLATION CITED:	Courts Legislation Amendment Act 1996 Supreme Court Act 1970 Supreme Court Rules
CASES CITED:	Archer v Howell (1992) 7 WAR 33 Australasian Meat Industry Employees’ Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Baker v the Queen [1975] AC 774 Bhagat v Global Custodians Ltd [2002] NSWCA 160 In Re Bramblevale Ltd [1970] 1 Ch 128 Fairclough v Manchester Ship Canal Co [1897] WN 7; 41 SJ 225 John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 Markisic (Oliver) v The Commonwealth [2006] NSWCA 150 R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059 Thorpe v Marr’s Furniture Removals Pty Ltd [2000] QSC 279 Witham v Holloway (1995) 183 CLR 525 Wyszynski v Bill [2005] NSWSC 110 X & Ors v Australian Prudential Regulation Authority & Anor [2007] HCA 4; (2007) 232 ALR 421
PARTIES:	Oliver Markisic - Appellant Commonwealth of Australia - First Respondent Commissioner of the Australian Federal Police - Second Respondent
FILE NUMBER(S):	CA 40903/05
COUNSEL:	Self Represented - Appellant D P Robinson SC; T Leibman - Respondents
SOLICITORS:	Self Represented - Appellant Australian Government Solicitor - Respondents
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	20369/01
LOWER COURT JUDICIAL OFFICER:	Simpson J
LOWER COURT DATE OF DECISION:	8 November 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	Markisic & Anor v Keelty [2005] NSWSC 1124

40903/05

CAMPBELL JA
HANDLEY AJA
BELL J

23 April 2007

OLIVER MARKISIC v COMMONWEALTH OF AUSTRALIA & ANOR

Judgment

1 CAMPBELL JA:

Nature of the Appeal

2 This is an appeal from an order of Simpson J given on 8 November 2005, that dismissed a Notice of Motion by which the appellant, Mr Oliver Markisic, made a charge of contempt of court against Mr Michael (Mick) Keelty, the Commissioner of the Australian Federal Police (“AFP”).

3 That Notice of Motion was brought in proceedings in which Oliver Markisic and his mother Marika Markisic were the plaintiffs. That action, number 20369/01 in the Common Law Division, names the Commonwealth of Australia as defendant. It alleges various torts that the Appellant describes in an affidavit as "trespass to the land, assault, battery, false imprisonment and false arrest, nervous shock, interference with domestic relations and so on." I will refer to that action as "the Trespass Proceedings". It arises from an incident that the Appellant alleges occurred on 29 September 1998, where, according to him, members of the AFP entered the plaintiffs’ house and land without a warrant authorising them to do so, and abducted from there a child, Elena Markisic. The appellant says that Elena was born on 3 May 1997, and therefore she would have been nearly 17 months old at the time. It appears that Elena was the child of the appellant's brother, Dragan Markisic, and that there had been dispute between Dragan Markisic and the child's mother, Katerina Markisic, that related in some way, not altogether clear from the material before us, to the custody of the child.

The Notice of Motion

4 The Notice of Motion in question was filed on 14 June 2005. The substantive order it sought was:

"An order that Mick Keelty, Commissioner of the Australian Federal Police, to shaw [sic] cause why not be held in contempt of the Supreme Court of New South Wales."

5 It had annexed to it a Statement of Charge, in the following terms:

“Mick Keelty, Commissioner of the Australian Federal Police challenged the authority of the Court and committed contempt of court by not providing all the documents as required under the Subpoena for production of documents issued by the Supreme Court of NSW on 06 April 2004 and addressed to the Commissioner of the Australian Federal Police.”

The Evidence in Support of the Notice of Motion

6 On 6 April 2004 the Appellant caused to be issued a subpoena, in the Trespass Proceedings, directed to "the Commissioner of the Australian Federal Police". The subpoena was in the conventional form, and stated:

“THE COURT ORDERS that you shall ATTEND AND PRODUCE this subpoena and the documents and things Described in the schedule (in this subpoena called the “scheduled documents”)
a) before the Supreme Court;
b) at the Supreme Court, Law Courts Building, Queen’s Square, Sydney, New South Wales;
c) on 28/4/04 at 9.00am;
and until you are excused by the Court from further attending”

7 The schedule to the subpoena read:

“It is requested from the Commissioner of the Australian Federal Police to produce:
1. The Warrant to take possession of the child Elena Markisic born 03.05.1997, which is a document the five members of the AFP should have used as a lawful justification for entering the house of Oliver and Marika Markisic (the plaintiffs) on 29.09.1998 and taking of the above child from the said house
2) All records, documents, emails, communications and notes in the possession of the Australian Federal Police in relation to the supposed above Warrant
3) All records, documents, e-mails, communications and notes in the possession of the Australian Federal Police which refer to or relate to the following persons ; in 1998/99
a) Dragan Markisic, whose date of birth is 02.08.1959
b) Elena Markisic, whose date of birth is 03.05.1997
c) Katerina Markisic, whose date of birth is 04.04.1970
d) Oliver Markisic, whose date of birth is 16.09.1955
e) Marika Markisic, whose date of birth is 01.03.1935”

The expression “; in 1998/99” , which I have indicated in bold, appears in handwriting on the copy of the subpoena that is in evidence. It is not clear when or in what circumstances it was placed there.

8 The Australian Government Solicitor (“AGS”) accepted service of the subpoena on behalf of the Commissioner.

9 On the return date of the subpoena, 28 April 2004, the Commissioner did not produce any documents. It was stood over to 14 May 2004, on which date the Commissioner produced some documents that had been requested by the subpoena.

10 The Appellant formed the view that production was not complete. He spoke to two different solicitors at the AGS, each of whom told him that the Commissioner had produced all the documents in the possession of the AFP.

11 On 16 June 2004 the Appellant filed a Notice of Motion in which he requested orders including:

“1. The Defendant to produce the documents requested under paragraphs a), c) and d) in the Notice to produce documents served on Mrs. Roshana Wikramanayake, a solicitor employed by the Australian Government Solicitor.
2. The Commissioner of the AFP to produce all the documents requested in the Subpoena for production issued by the Supreme Court on 06.04.2004.”

12 In support of that application, the Appellant swore an affidavit on 15 June 2004, but that affidavit provided no cogent evidence of incomplete production having been made, merely an assertion that production was incomplete.

13 On 11 October 2004 the Appellant wrote to the Commissioner, again requesting production of the documents. That led to an officer of the AFP producing to the Court Registry some additional documents. The covering letter, dated 14 October 2004, said that those documents were:

“… located as a result of a thorough search of AFP and Interpol records.
The AFP has now produced all documentation in response to this subpoena.”

14 On 18 October 2004 the same AFP officer also wrote to the Appellant, notifying him of the production of the extra documents, and also stating:

“The AFP has now produced all documentation in response to this subpoena.”

15 The Appellant remained dissatisfied with this response.

16 On 3 December 2004 the Appellant filed another Notice of Motion seeking an order that:

“1. The Commissioner of the AFP to produce all the documents requested in the Subpoena for production issued by the Supreme Court on 06.04.2004.”

17 In support of that application, the Appellant swore an affidavit that annexed three documents that he had in his possession and that the Commissioner had not previously produced in answer to the subpoena. One of them was a facsimile from a solicitor at the Department of Community Services to one Allison Barrett. It is not clear whether or not Ms Barrett has any role in the AFP. The letter relates to assistance that Ms Barrett might provide on 14 October 1998 in assisting Katerina Markisic and Elena Markisic to fly from Sydney to Frankfurt. There are two other documents, each of which appears on its face to be a case report of the AFP, connected with the arrival of Katerina Markisic in Australia on 12 October 1998.

18 At a hearing before Smart AJ on 3 February 2005, the AGS produced some additional documents.

19 On 29 April 2005 the Appellant wrote again to the Commissioner, informing him that the matter would again be before the Court on 6 May 2005.

20 On 6 May 2005 before the Court, a representative of the AFP tendered a letter dated 5 May 2005 stating in part:

“I have reviewed the Markisic file and can confirm that all documents have been produced by the Australian Federal Police in response to the Subpoena for Production served by Mr Oliver Markisic and issued on 6 April 2004. These documents have been produced directly to the Supreme Court of NSW on two occasions being 28 April 2004 and 15 October 2004.
In December 2004, further searches were conducted to locate any material that may not have been produced. These searches identified several legal files and a previously unidentified file in relation to Elena Markisic. These documents were reviewed and further documentation was produced in answer to the subpoena. It is our understanding that this material was produced to the court by the Australian Government Solicitor before His Honour Acting Justice Smart on 3 February 2005. At that time legal professional privilege claims were made in relation to certain documentation by AGS on behalf of the Australian Federal Police. Further, it was agreed between the parties that certain documents would be edited on the grounds of privacy.
The Australian Federal Police confirm that there is nothing further to produce in answer to the Markisic subpoena.”

21 The Appellant remained dissatisfied with that response. The Registrar directed the Appellant to serve on the Commissioner a list of the documents he believed the Commissioner should have produced, and directed the Commissioner to respond to that list.

22 In compliance with that direction, the Appellant sent to the Commissioner a list. The first two paragraphs of the list are introductory. Paragraphs 3-7 of that list identified by description various classes of documents that the appellant alleged existed. Paragraph 8 identified four documents with some, though incomplete, particularity. Paragraph 9 identified three documents quite specifically.

23 The AGS wrote back on 25 May 2005 asserting that paragraphs 3-7 inclusive of the list did not comply with the Registrar’s order, and seeking further information concerning the other documents that were requested. It appears that the Appellant did not provide that further information. Instead, he filed the Notice of Motion alleging contempt on 14 June 2005.

24 In support of his Notice of Motion for contempt, the Appellant swore an affidavit on 14 June 2005 that annexed copies of several other documents that fell within the description of documents called for by the subpoena. They were copies of letters that Dragan Markisic had written, addressed to the AFP, and enclosures in those letters. It appears to be the contention of the Appellant (though it is not established by evidence before us) that the AFP did not produce copies of those documents in response to the subpoena. All those documents bear dates in the range September 1998 to November 1999.

Competency of the Appeal

25 The Respondent submitted that the appeal was incompetent by reason of section 101 Supreme Court Act 1970. So far as relevant that section states:

“(1) Subject to this and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from:
(a) any judgment or order of the Court in a Division, and
…
(5) An appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court.
(6) Subsection (5) does not confer on any person a right to appeal from a judgment or order of the Court in a Division in any proceedings that relate to criminal contempt, being a judgment or order by which the person charged with contempt is found not to have committed contempt.”


The Respondent submits that the present appeal relates to a criminal contempt, that the Commissioner has been found not to have committed contempt, and hence that no appeal lies to the Court of Appeal.

Was the Notice of Motion a Charge of Contempt At All?

26 One basis upon which the Appellant submits that the proceedings were not for criminal contempt is that the order sought in the Notice of Motion amounted to an order that the Commissioner explain the circumstances of non-production of the documents. The Appellant points out that the Notice of Motion does not ask that the Commissioner be punished. As I understand it, the substance of the Appellant’s contention in this respect is that the Notice of Motion should be seen as seeking an order for the Commissioner to file an affidavit, or go into the witness box, to explain why the documents had not been produced, and hence (incidentally) why it was that he had not committed contempt of court. In that way, as I understand the submission, the Notice of Motion is in the nature of an interlocutory proceeding seeking orders aimed at the further production of documents, not at punishment for a contempt already committed.

27 While the Notice of Motion was poorly framed, it used language that was common in systems of procedure that preceded the one now applicable. For example, the precedent for an order nisi for prohibition contained in Addison and Paterson, The Law and Practice Relating to Appeals from Magistrates (Law Book Company 1927) p 294 is an order directed to the defendant, ordering him to “show cause” at a particular place and time “why a writ of Prohibition should not be issued” prohibiting certain specified actions. While these days a court would not after a hearing actually make an order in the terms set out in the Notice of Motion, the Notice of Motion could still readily be read as inviting the Commissioner to put such evidence or argument as he wished before the Court, for the purpose of the Court deciding whether he was guilty of contempt. As well, the annexure of a Statement of Charge to it was strongly indicative that it was intended to be the vehicle by which a charge of contempt of court was made. Further, the language of the Statement of Charge said in so many words that the Commissioner had committed contempt of court. Further, the words in the Statement of Charge alleging that the Commissioner “challenged the authority of the Court” are also indicative of an allegation of contempt of court being made.

28 The course of the hearing also bears out that it was a charge of contempt of court that was being made. The oral submissions of the Appellant to the trial judge included the following:

“In this respect I would submit that the statement of charge discloses why possibly Mr Keelty allegedly committed contempt of court by not providing all the document as required under the subpoena.
And the fact is for me at least that the Commissioner has not produced all the document and that in itself would represent a contempt of Court regardless of the motives of the Commissioner.
… I have for more than one year endeavoured to find a way the Commissioner to release all the documents required under the subpoena. Theoretically I could have filed this statement of charge and the rest of the documents maybe after the return of the first return of the subpoena when no documents, for example, were provided. I did not do that deliberately and under the paragraph 7 your Honour could see there were 4 returnable times, but they were all in 2004, the last one, and since then I have tried on many occasions to remind the Commissioner of his obligations under the subpoena to produce documents.
…
In my mind the Commissioner simply ignored to release documents. … I am saying probably the first contempt occurred was when the Commissioner failed to disclose all the documents.”

29 The trial judge permitted the Appellant’s brother, Mr Dragan Markisic, to address the Court notwithstanding that the Appellant had already made submissions. Mr Dragan Markisic said:

“At this stage my brother is at the position that the statement of charge as is drawn and filed in the register of Supreme Court discloses on its face case against Mr Keelty, but if your Honour is in any case of opinion that statement of charge is not sufficiently drawn, something is missing like allegation of deliberate suppression of documents, that would require my brother just to amend the statement of charge to include every necessary element, including allegation of deliberate suppression of document by Mr Keelty. And also maybe to include specifically when the contempt occurred, the period from 6 July, 6 April 2004 up to certain period as is specified in affidavit of my brother.”

30 At no time in the submission made to her Honour was any suggestion put that her Honour should make an order requiring the Commissioner to file an affidavit or give oral evidence explaining the circumstances that led to a “no further documents to produce” response being made on two occasions, after which further documents were in fact produced.

31 The trial judge’s judgment makes clear that she regarded the question she was asked to decide as being one of whether the Commissioner had committed contempt.

32 The impression that a charge of contempt was brought, and tried, is also confirmed by the terms of documents that the Appellant filed for this appeal. The orders sought by the Notice of Appeal included:

“2. To punish the Commissioner of the AFP for civil or criminal contempt of the Supreme Court of NSW or for both.

3. In alternative the case be remitted to the Common Law Division of the Supreme Court of NSW for re-hearing of the Notice of motion for contempt.”

33 Part of the Appellant’s written submissions included the words:

“The judgment of her Honour dismissing the First Plaintiff’s notice of motion is effectively saving the Commissioner from punishment he deserved when he intentionally did not produce documents …”

34 In my view it is clear that what was occurring before her Honour was the trial of a charge of contempt of court.

Was the Charge One of Criminal Contempt?

35 Throughout the period April 2004 to June 2005, Part 37 Rule 12(1) Supreme Court Rules provided:

"Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly."

36 However, the rule cast no light on whether the contempt involved was a civil or a criminal contempt.

37 In Australasian Meat Industry Employees’ Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98, the joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ gave consideration to the distinction between civil and criminal contempts. Their Honours said, at 106:

“Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as “civil contempt”; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as “criminal contempt”.”

38 Their Honours observed, at 107:

“The theoretical distinction between the two classes overlooks the underlying rationale of every exercise of the contempt power, namely that it is necessary to uphold and protect the effective administration of justice. Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt , 2nd ed. (1983) say, at p.3:
“If a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.””

39 Also at 107, their Honours say,

“The unsatisfactory nature of the distinction is attested by the arbitrary classification of some instances of disobedience to an order as examples of criminal contempts.”

and go on to give examples of such “arbitrary classification” . They say, at 108:

“The concept that disobedience to an order becomes criminal when the primary purpose of exercising the power changes from vindication of the rights of the plaintiff to vindication of the authority of the court is both complex and artificial. Salmon LJ was right when he said in Jennison v Baker , at p 64, speaking with reference to the enforcement of an injunction generally, that “the two objects are, in my view, inextricably intermixed”.”

40 Their Honours conclude, at 109:

“There is, accordingly, much to be said for the view that all contempts should be punished as if they are quasi-criminal in character, notwithstanding the adoption of the contrary view by some members of this court in the decisions to which we have already referred.”

41 In Witham v Holloway (1995) 183 CLR 525, the High Court, in the course of deciding that all charges of contempt must be proved beyond reasonable doubt, gave further consideration to the difference between civil and criminal contempts. The joint judgment of Brennan, Deane, Toohey and Gaudron JJ has, as I read it, a structure whereby their Honours consider various justifications that have been given for the distinction between civil and criminal contempts, and end up satisfied with none of them. They say, at 530:

“In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.”

42 After recognising the long-standing distinction between civil and criminal contempt, their Honours advance for discussion, at 531, a thesis that:

“The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process.”

43 However the “public interest/private interest” dichotomy that is part of that thesis is rejected at 532-533:

“One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.
Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.”

44 Their Honours then go on, at 533, to reject the part of the thesis that the nature of the contempt depends on whether the purpose of the proceedings is punitive, as opposed to remedial or coercive:

“Moreover, there is considerable difficulty with the notion that, in some cases, the purpose or object of the proceedings is punitive and, in others, the purpose or object is remedial or coercive.”

45 Their Honours give reasons for taking that view, and conclude at 534:

“The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt “must realistically be seen as criminal in nature” ( Hinch (1987) 164 CLR 15 at 49). The consequence is that all charges of contempt must be proved beyond reasonable doubt.”

46 McHugh J gave a separate judgment. He summarised, at 538-539, the traditional distinction between criminal and civil contempts:

“Criminal contempts are acts or omissions that have a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings. Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts. Civil contempts, on the other hand, are concerned with failures to comply with judgments or orders of the courts. But civil and criminal contempt overlap. Thus, disobedience to the order of a court constitutes criminal contempt when the disobedience is contumacious. Defiance of the court's order renders criminal what would be otherwise civil contempt. Where non-compliance with a judgment or order goes beyond mere breach and involves misconduct, civil contempt also has “a penal or disciplinary jurisdiction [that is] exercised by the court in the public interest”. (footnotes omitted)

47 McHugh J, like the joint judgment, goes on to consider various rationales for the distinction between civil and criminal, and is satisfied with none of them. He concludes, at 549:

“The case for abolishing the distinction between civil and criminal contempts is a strong one. Moreover, it is a course of action that is open to this court having regard to its duty to rationalise the principles of the common law. But, having regard to the argument that we heard, there is no need to consider whether we should take that step in this case. It is sufficient to say that, in applying the standard of proof laid down in Peek , the Supreme Court erred. The appeal must therefore be allowed.”

48 Since then, the only occasion of which I am aware when the distinction between criminal contempt and civil contempt has been mentioned in the High Court is in X & Ors v Australian Prudential Regulation Authority & Anor [2007] HCA 4; (2007) 232 ALR 421 at [51], 432-433 where Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ said only that it was “inappropriate here to consider any further” that distinction.

49 While both Mudginberri and Witham are judgments in which majorities in the High Court have expressed dissatisfaction with the justification for the distinction between civil and criminal contempts, that is not the same as them deciding that all the contempts that would traditionally be classified as civil are, in reality, criminal contempts. Quite the contrary – both in Mudginberri and in Witham the joint judgments, in the passages I have quoted at paras [37] and [41] above, have stated what the distinction is between the two types of contempt.

50 Section 101(5) and (6) were introduced into the Supreme Court Act 1970 by the Courts Legislation Amendment Act 1996. In those sub-sections the legislature utilised the distinction between civil and criminal contempt as the basis for a rule about when an appeal could lie from an acquittal on a charge of contempt. It appears to be contemplated by those sub-sections that there can be an appeal against an acquittal, on a charge of contempt, where the charge in question is a charge of a civil contempt. Section 101(5) and (6) were introduced well after the decisions in Mudginberri and Witham were delivered. Those legislative provisions need to be applied in a way that recognises the distinction between civil and criminal contempts, even though there is good reason to believe that distinction is an unsatisfactory one.

51 The Courts Legislation Amendment Act 1996 also introduced into the Supreme Court Act 1970 a new section 101A. That section empowers the Attorney-General, at any time after the conclusion of contempt proceedings in which an alleged contemnor is found not to have committed contempt, to submit to the Court of Appeal a question of law arising from, or in connection with, those proceedings. Section 101A(11) provides:

“This section applies to criminal contempt only, and does not apply to civil contempt.

Usually, if one expression is used more than once in a statute, it is construed as having the same meaning each time it is used, unless there are differences of context or purpose between the different places at which it is used in the statute.

52 The validity of section 101A was considered by the Court of Appeal in John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694. Spigelman CJ said, at [5]-[6], 697:

“5. The illusory nature of the distinction between civil and criminal contempt has led the High Court to determine that all charges of contempt must be proved beyond reasonable doubt: see Witham v Holloway (1995) 183 CLR 525 ; 131 ALR 401. See also Broken Hill Pty Co Ltd v Dagi [1996] 2 VR 117 at 194-5 per Hayne JA. Nevertheless, parliament expressly states in subs (11) that s 101A applies only to contempt proceedings for what would, traditionally, have been regarded as a criminal contempt, namely proceedings which are not remedial or coercive in the interests of a private individual.

6. For that reason, no doubt, the parliament chose to assimilate a Crown appeal from an unsuccessful proceeding for contempt, with the limited circumstances in which a Crown can take proceedings by way of appeal on an acquittal in a criminal trial. The common law doctrine that the Crown cannot appeal from a verdict of acquittal is well established.”

53 That passage was neither agreed with, nor disagreed with, by the other members of the Court (Priestley and Meagher JJA), but is persuasive authority concerning how “criminal contempt” should be understood in section 101(5) and (6) Supreme Court Act 1970.

54 Since the decision in Witham, the ongoing existence of the distinction between civil and criminal contempts has also been recognised in another context, by the Court of Appeal in Bhagat v Global Custodians Ltd [2002] NSWCA 160 where Spigelman CJ (with whom Ipp and Brownie AJJA agreed) said, at [32]:

“Although there is a distinction between civil contempt and criminal contempt, the distinction has often been difficult to draw.”

55 In Markisic (Oliver) v The Commonwealth [2006] NSWCA 150 the present Appellant had sought leave to appeal against the striking out of a contempt motion that the present Appellant had brought, in the Trespass Proceedings, against people other than the Commissioner. The Court (Ipp and Basten AJJA) refused leave to appeal on the basis that an appeal would, by virtue of section 101(6) Supreme Court Act 1970, be incompetent. Part of the reasoning which led their Honours to that conclusion was (at [7]):

“It is now well-established, and was not disputed in these proceedings, that a charge of contempt by misleading or otherwise misbehaving in the course of proceedings, is essentially criminal in nature: see, eg, Witham v Holloway (1995) 183 CLR 525 at 534.”

56 That decision is not decisive of whether a right of appeal exists in the present case for two reasons. First, the contempt alleged in that case, namely the making of statements by counsel and by a solicitor that were alleged to be false, related to a different type of contempt to that alleged in the present case. An allegation of conduct aimed at misleading the Court is an allegation of a criminal contempt, as traditionally understood. Second, in any event it appears that there was no argument about whether section 101(6) precluded any right of appeal. A decision is not authority for a matter that has been assumed, rather than actually decided, in the course of making the decision: Baker v the Queen [1975] AC 774 at 788; Archer v Howell (1992) 7 WAR 33 at 46; Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059 at [32]-[33]; R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 at [20]-[25], [33]-[39], 962-963, 965-966.

57 I incline to the view that the present proceedings are a criminal charge of contempt, because they are not remedial or coercive in the interests of a private individual. They seem to relate to alleged past breaches, and the punishment that is sought to be imposed seems to be simply for the purpose of punishing those breaches, rather than as a means of inducing the Commissioner to comply with the terms of the subpoena in a way that he had not previously done.

58 However, the Appellant is a litigant in person, and, while he has experience in litigation and presented his case clearly, he was not able to provide the Court with much assistance on the meaning of “criminal contempt” in section 101(5) and (6) Supreme Court Act 1970. While the Respondent took the point that the appeal was not competent, the argument that the Respondent presented on the topic was comparatively brief. As the topic is an important one, I would prefer not to rest the decision of the appeal on my present view about whether what is involved in the present case is an allegation of criminal contempt, when (as will hereafter appear) another basis upon which the appeal can be dealt with is available.

59 In these circumstances, rather than decide the case on the basis of the competency of the appeal, I will proceed by assuming, without deciding, that the appeal is competent.

Was the Standard of Proof Met?

60 It is unquestionable, since Witham, that whether the charge is classified as alleging a criminal contempt or a civil contempt, before it is found proved each element in the charge must be proved beyond reasonable doubt.

61 The Appellant submits that it is quite clear that there has been non-compliance with the subpoena, because the Commissioner has not produced the documents referred to in it. However, mere non-production of documents that are called for by a subpoena, or other court order to produce documents, is insufficient to establish that there has been a contempt. As well, it needs to be established that, at the date on which the documents were required to be produced, the alleged contemnor had documents that met the description of the documents called for by the subpoena or other order to produce: In Re Bramblevale Ltd [1970] 1 Ch 128 at 137-138; Thorpe v Marr’s Furniture Removals Pty Ltd [2000] QSC 279 at [11]; Wyszynski v Bill [2005] NSWSC 110 at [59]-[61].

62 Further, there is a mental element involved in contempt of court. Mudginberri concerned a contempt arising from disobedience to a court order. While the focus of the decision in that case was whether a court had power to impose a fine in consequence of a breach of a court order, reaching a conclusion on that topic involved giving consideration to what was involved in contempt of court consisting of breach of a court order.

63 In a lengthy paragraph at 111-112, Gibbs CJ, Mason, Wilson and Deane JJ, as I read it, approved the distinction made by the English Court of Appeal in Fairclough v Manchester Ship Canal Co [1897] WN 7; 41 SJ 225 between “casual, or accidental and unintentional disobedience” and “what was required in a case where ‘it were sought to commit a private individual to prison for contempt’ or ‘to sequestrate the property’ ‘of a company’ upon the ground of disobedience”. Their Honours held that conduct that is deliberate, and in fact breaches a court order, and is not a casual or accidental or unintentional breach, counts as wilful conduct. Their Honours conclude, at 113:

“… a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.”

64 As I read their Honours, their view is that the imposition of punishment is justified for a breach of a court order only if there is wilful disobedience, in the sense of deliberate action or inaction that is not casual, accidental, or unintentional. That conclusion applies regardless of whether the contempt involved in the disobedience to the order is classified as a civil or a criminal contempt. Thus, proof that a contempt has been committed by breaching a court order involves proving enough to conclude that the action or inaction said to constitute the breach was deliberate, and not casual, accidental or unintentional. Consistently with Witham, that needs to be proved beyond reasonable doubt.

65 The trial judge’s conclusion concerning discharge of the criminal onus was, at [52]:

“Taking a simplistic view of the evidence produced by Mr Markisic, it would be possible to suspect that proper attention was not paid to what was required in order to comply properly with the subpoena; but it is also possible to perceive that the quantity of material (and its age – the schedule refers to an event of September 1998) might have made identification of the relevant material more difficult. Suspicion about the degree of commitment to the task of responding to the subpoena, either by the Commissioner or those acting on his behalf, is not sufficient to discharge the criminal onus.”

66 The Appellant submitted that there must have been various types of documents in existence that the Commissioner had not produced. He submitted that there must have been orders in writing, or written records of oral orders instructing the police officers in question to enter his house. He submitted that there must be reports to their superiors from the officers who entered the house about their activities. Otherwise, he submitted, the officers in question would have been acting in a totally unauthorised way while supposedly on duty, in which case there should be records of disciplinary action against them. He submits that it should be inferred that there were reports about the seizure of the child, up through the chain of command to the Commissioner. He submitted that we should take judicial notice of the fact that members of the AFP always take notes of what they do on duty.

67 I do not accept those submissions. In my view the matters of either possible or likely organisational practice that he points to might, at best, provide grounds for a plausible suspicion that more documents than were actually produced had (at least once) existed, but they do not provide proof beyond reasonable doubt that such documents existed. Nor is there a basis for inferring, at a level of satisfaction beyond reasonable doubt, that, even if any such documents had once existed, they were still in existence at the various times that the subpoena was called upon.

68 In these circumstances, I see no error in the trial judge’s conclusion quoted above at para [65].

Bias

69 Another basis upon which the Appellant sought to set aside the decision was bias on the part of the trial judge. The bias alleged was actual bias, not apparent bias. The grounds of appeal put the allegation in the following way:

“a) At the hearing her Honour demonstrated an intention to save the Commissioner of the Federal Police from contempt of court by not adjourning the hearing to allow the First Plaintiff to consider the case law presented by surprise at the hearing by the opponent
b) Her Honour’s general intention was to save the Commissioner of the Federal Police from contempt of court
c) Her Honour is biased towards the Commonwealth of Australia as a party in the proceedings
d) Her Honour demonstrated at the trial held on 28, 29 and 30.11.2005 and 01.12.2005 in the Supreme Court’s proceedings No. 20492/99, where the appellant was assisting his brother Dragan Markisic (the Plaintiff), that her Honour is biased and in particular:
i) oppressive – open maliciously against Markisics while acting with hatred against Markisics
ii) biased and taking side of any opposite party of Markisics with an aim to damage as much as possible Markisics’ case in the Supreme Court
iii) acting for the benefit of the State of NSW and the Commonwealth of Australia”

70 The matter referred to in allegation (d), relating as it did to events that occurred after the decision from which this appeal is brought, would need to be based upon evidentiary material that was tendered on the appeal, and that the Court decided to admit in exercise of its powers under section 75A(7)-(9) Supreme Court Act 1970. No such evidence was tendered, and consequently no ruling was made admitting it. Thus, there is no basis upon which allegation (d) could succeed.

71 It may be that failure to tender the transcript of the hearing referred to in allegation (d) was an oversight on the part of the Appellant. I have examined that transcript, and can find in it no support for allegation (d).

72 The only evidentiary foundation for allegations (a)-(c) is the transcript of the hearing that led to the judgment against which the Appellant now appeals.

73 One matter that is relied upon as indicating bias on the part of her Honour arises from the fact that at the very start of the hearing the Appellant applied for a “further adjournment of 14 days” on the basis that he had been provided, just a few minutes previously, with a list of authorities upon which the Respondent intended to rely. One of the cases on that list was unreported. Counsel for the Respondent offered to provide a copy of it to the Appellant. The Judge refused the adjournment.

74 In my view, refusal of the adjournment, even when looked at in conjunction with the rest of the transcript, and the decision at which the trial judge arrived, provides no basis whatever for concluding that the trial judge was biased.

75 Another matter stated in the Appellant’s submissions (though, in fairness to the Appellant, I should say that it is not altogether clear that it is relied upon in connection with the allegation of bias) is that the trial judge:

“… did not even reprimand the Commissioner as being the chief policeman in this country, supposed to uphold the law, allowed himself to be even cast on with a shadow of inappropriateness when dealing with a court order addressed to him.”

76 It is no part of the task of a judge, deciding a question of liability on a charge of contempt of court, to reprimand the person alleged to have committed contempt for doing the acts that are alleged to constitute the contempt. Indeed, at that stage of the proceedings, before the question of liability had been decided, it would be totally inappropriate for the judge to do so. If a charge of contempt is made out, and the matter then proceeds to the stage of sentence, it can sometimes be appropriate for a judge to indicate, sometimes strongly, disapproval of the conduct that has been found to constitute the contempt. However, this matter never reached the stage of sentence.

77 In these circumstances, the trial judge’s failure to reprimand the Commissioner in the course of the hearing below or in her reasons for judgment is no indication of bias on the part of the judge.

78 Another submission upon which the Appellant relies is that the result of the application shows that the Commissioner has succeeded in avoiding production of the documents and that the trial judge “in effect attempted to save the Commonwealth of Australia from suffering judgment and huge damages.”

79 The fatal difficulty with this argument is that there is no basis whatever for concluding that one of the objectives the trial judge was attempting to reach was to save the Commonwealth from suffering judgment and paying damages. She had no conceivable motive to do so.

80 Indeed, the trial judge was in no position to conclude that the Commissioner had escaped, for all time, production of any documents he might still have that fall within the scope of the subpoena. That is because the trial judge did not have placed before her the totality of the interlocutory applications that there have been seeking production of the documents. It may be that additional interlocutory applications could be made, of a type not involving an application to punish the Commissioner for contempt, aimed at flushing out any remaining documents. In saying that, I do not suggest that either (a) I am satisfied, on the evidence now before us, that there are additional documents – that matter has simply not been adequately investigated on the evidence before us, or (b) there would actually be, when all the interlocutory applications that there have been aimed at production of the documents are examined, some procedural stone that the Appellant has left unturned. My conclusion is solely that, on the evidence before the trial judge, she could not have concluded that the Commissioner had for all time escaped production of any documents that he might have, that fall within the subpoena. Nor did she purport to so conclude.

81 A more general submission is also made by the Appellant, that the trial judge,

“is biased for the reason that her Honour does not like and cannot accept an idea that the Markisics’ family are victims and holds in prejudice to the Plaintiffs in the lower court proceedings that the suffering of the Markisics’ family from the government is well deserved.”

82 There is no finding by her Honour, either in express words, or in substance, “that the suffering of the Markisics’ family from the government is well deserved.”

83 There is no shred of evidence to support the balance of the contention that I have just quoted.

84 In all these circumstances, the allegation of bias is not only wrong, it is totally unsustainable.

85 The orders I propose are:

1. Appeal dismissed.

2. Appellant to pay costs of Respondents.

86 HANDLEY AJA: I agree with Campbell JA.

87 BELL J: I agree with Campbell JA.

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