McDonald v State of South Australia

[2008] SASC 309

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

MCDONALD v STATE OF SOUTH AUSTRALIA

[2008] SASC 309

Decision of The Honourable Justice Sulan

12 November 2008

PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - CONTEMPT - WHAT CONSTITUTES

Whether tape-recording proceedings without the permission of the Court constitutes contempt - meaning of 'matter' for the purposes of r 16(2) of the 2006 Rules.

Held: a prima facie case of contempt arises, however, in the present circumstances, contempt proceedings should not be commenced.

Supreme Court Civil Rules 2006 (SA) r 16, r 302; Supreme Court Rules 1987 (SA), referred to.
Main Market Pty Ltd & Ors v Temple & Ors (unreported, Supreme Court of South Australia, Debelle J, 27 November 1998, S6986), applied.
Stefanovski v Murphy and Another (1996) 2 VR 442, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Matter"

MCDONALD v STATE OF SOUTH AUSTRALIA
[2008] SASC 309

Civil

1. SULAN J: Francis Thomas McDonald appeared in person before a Master of the Court in respect of an inquiry about costs and also an application to determine the contents of case books for an appeal to the Full Court.  I do not need to deal with the substantive issues before the Master, other than to observe that Mr McDonald has appealed to the Full Court from a decision of a single Judge.  It was part of the Master’s role to settle the contents of the appeal books. 

2. During the course of the proceedings, it was revealed to the Master that Mr McDonald had been tape-recording the proceedings.  He did not have the permission of the Court to do so. 

3. The Master advised Mr McDonald that his conduct may be a contempt of court.  Mr McDonald applied for retrospective permission to record the proceedings.  The Master observed that, during the proceedings, he had reprimanded Mr McDonald for interrupting counsel during submissions.  The Master had indicated that he would adjourn to have reporters present because of the continued interruptions which were occurring.  The Master refused the application for retrospective permission and referred the matter to a Judge of this Court.

4. The Master considered that the Supreme Court Civil Rules 2006 (“the 2006 Rules”) were the applicable rules for the settling of the appeal books, as the appeal had been instituted after the 2006 Rules came into force.  The costs question from the trial was to be decided under the Supreme Court Rules 1987, as the action had been instituted prior to the 2006 Rules coming into force.  The Master directed that the 2006 Rules were to apply to his referral of the possible contempt to a Judge of this Court.  The matter giving rise to the reference to a Judge commenced after the 2006 Rules came into force.  In considering this matter, I have applied the 2006 Rules. 

5. It is fundamental to the orderly proceedings of the court that the presiding judicial officer have the authority to exercise control over the proceedings and to direct the manner in which the proceedings are to be conducted.  The presiding judicial officer is obliged to ensure that the proceedings are conducted in a manner conducive to the proper administration of justice, and that litigants are fairly treated. 

6. In order that proceedings are conducted in an orderly way, the presiding judicial officer has a wide discretion to govern the behaviour of those who are present, including the parties, their counsel, witnesses, and anyone else who is present in court.  Counsel and solicitors are bound by rules of etiquette which, inter alia, are designed to ensure that proceedings are conducted in a way which ensures that all parties are heard and submissions are made in an orderly manner.  For the most part, the experience of the courts is that persons before them cooperate and conduct themselves in accordance with the procedures of the court.

7. In Stefanovski v Murphy and Another,[1] the Victorian Court of Appeal considered whether a party to proceedings, or that party’s legal representative, has a right to tape-record proceedings.  Tadgell, Ormiston and Teague JJ, in separate judgments, each agreed that no such right existed, without the permission of the Court.  Each member of the Court concluded that the tape-recording of proceedings was undesirable.  It is unnecessary to consider the detailed reasons, other than to observe that the members of the Court were unanimous that, if a recording was to be made, it should only be done with the permission of the presiding member.[2]

   [1] (1996) 2 VR 442.

   [2] Ibid, per Tadgell J at 444, Ormiston J at 450-1 and Teague J at 461.

8. The recording of proceedings is part of the court’s process.  The manner in which such recording is undertaken is in the discretion of the court.  I agree with the observations of the members of the Court in  Stefanovski, that there is no right in a litigant to tape-record proceedings.  It is unnecessary for me to decide whether it is desirable for a court to give permission to a party to tape-record proceedings when there is no reporter present to record or transcribe the proceedings.  There may be circumstances in which a court will grant such permission if sufficient safeguards can be put in place to ensure that the tape‑recording will accurately reflect the proceedings.  One of the matters that may influence the court is to ensure that persons who are speaking are correctly identified, and that the tape-recorder is placed in a position where any person speaking can be accurately recorded.  The purpose of recording proceedings is to obtain an accurate account of what has been said in court.  If there are concerns about the method to be adopted, or if the recording of the proceedings will disrupt the proceedings, the presiding officer has the power to decide not to permit the recording. There may be many other factors relevant in determining whether to grant permission.

9. Rule 16(2) of the 2006 Rules provides:

   If a matter involving a possible contempt of the Court arises before a Master, the Master must refer the matter to be dealt with by the Court constituted of a single Judge.

10. In the proceedings before the Master, the Master having refused the application for retrospective permission, and having observed that Mr McDonald’s conduct may amount to contempt, made the following orders:[3]

    1.Oral application by plaintiff for permission to have recorded proceedings in my court on 30 October 2008 refused.

    2.To avoid any doubt about what set of rules are applicable I direct under rule 8(2)(b) of the 2006 rules that those rules apply to the cost reference by Anderson J.

    3.As it appears that the plaintiff has committed a possible contempt by recording proceedings in my court on 30 October under rule 16(2) the matter is referred to be dealt with by a justice.

    [3]    Rule 16(3) of the 2006 Rules provides:  However, a Master may make any interim order that may be necessary in the circumstances of the case.

11. An issue arises as to exactly what is the ‘matter’ which has been referred to the single Judge, pursuant to r 16(2).  Upon a strict reading of the rule, the matter would include the matter being dealt with by the Master.  In this case, the matter would include the issue of costs and the contents of any appeal books. An alternative interpretation is that ‘the matter’ is limited to the issues of the possible contempt. It seems that when the question of a possible contempt arises, it is intended that a judge consider the matter which was before the master, insofar as it is relevant to the question of whether a contempt might have been committed.  The judge, having had the matter referred, can consider the entire matter, including the possible contempt. The judge might consider any orders that have been made in respect of the matter. The judge may decide it appropriate to revoke, confirm or vary any orders or directions of the master.  It may be that the subject matter of the contempt is so linked with the substantive matter that was before the master that it is appropriate for the judge to consider the entire matter.  For example, if it were alleged that a person may have breached an interim injunction, the judge might hear argument in respect of the injunction, and confirm, vary or discharge it.  That decision could be relevant to deciding the alleged contempt.

12. When a matter is referred to a judge pursuant to r 16(2), the judge is required to first consider whether a prima facie case of contempt has been made out.  Before a judge orders that a Registrar’s summons issue, the judge must be satisfied that there is sufficient evidence which, if accepted, would prove the contempt.[4]  If the court determines that Registrar’s summons should issue, the court will require the Registrar to formulate a written charge containing reasonable details of the alleged contempt.[5] 

    [4]    Main Market Pty Ltd & Ors v Temple & Ors (unreported, Supreme Court of South Australia, Debelle J, 27 November 1998, S6986).

    [5]    Rule 302(1) of the 2006 Rules.

13. In most cases, such as the present, the question of a possible contempt is likely to be a discrete matter and the substantive matters will remain for consideration of the master. 

14. Mr McDonald appeared before me.  He agreed that he had tape-recorded the proceedings without the Master’s permission.  He said that he had done so, not knowing that his conduct was not permitted.  He apologised for his conduct.  He agreed to deliver the tape to the Court.  I directed that it be held by the Registrar of the Court, to be released only at the direction of a Judge of this Court. 

15. I consider that there is sufficient evidence to order that a Registrar summons issue.  However, I have had regard to all that has been put to me by Mr McDonald. I am satisfied that he did not intend to interfere with the procedures of the Court.  I accept his submission that he was unaware that it was improper to tape-record proceedings of the Court without first obtaining permission.  I take into account that he voluntarily agreed to deliver the tape to the Court.

16. In considering whether to direct the Registrar to issue a summons, the Court should have regard, not only to whether a prima facie case of contempt has been made out, but also to all the circumstances giving rise to the referral of the matter.  If a judge concludes that the breach is trivial, or if there are good reasons why the matter should not be referred to the Registrar to commence contempt proceedings, the judge has a discretion to decline to refer the matter.  Factors including the reasons for the misconduct, the seriousness of such misconduct, and the personal circumstances of the person are relevant factors.

17. Mr McDonald has admitted his error.  I am satisfied he did not intend to disrupt the proceedings.  I am satisfied that he genuinely regrets his conduct.  I am satisfied his conduct was not contumacious.  The improper conduct was at the lower end of the scale of seriousness when considering contempt of the Court.

18. I decline to direct the Registrar to issue a summons.  I direct the matter, being the inquiry into costs and the content of the appeal books, be remitted to the Master.