Mead v Mead
[2007] HCATrans 219
•22 May 2007
[2007] HCATrans 219
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S123 of 2007
B e t w e e n -
COLIN ANTHONY MEAD
Appellant
and
LUCY GUITAR MEAD
Respondent
GLEESON CJ
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 22 MAY 2007, AT 10.22 AM
Copyright in the High Court of Australia
MR D.J. FAGAN, SC: May it please the Court, I appear with my learned friend, MR V.V. BEDROSSIAN, for the appellant. (instructed by Etheringtons Solicitors)
MS L.G. MEAD appeared in person.
GLEESON CJ: Yes, Mr Fagan.
MR FAGAN: May it please the Court, I am assuming that your Honours have the facts and the chronology, the context. The appeal can be resolved by a reference to a very short number of paragraphs in the primary judgment and the judgment of the Full Court. The short point that really disposes of everything is the proposition that the Full Court erred in holding that legal professional privilege under sections 118 and 119 of the Evidence Act could be invoked to preclude a trial judge from drawing an inference from admissible and received evidence as opposed to its proper function, or the proper function of those sections being to refuse the admission of evidence if objection is taken.
The relevant paragraphs for that point start with paragraph 44 in the primary judgment at appeal book page 40 where the learned trial judge’s conclusions are expressed in the negative, that is, his Honour said that certain things were inconceivable. But put in the affirmative, what his Honour was finding was that beyond reasonable doubt he could infer from the circumstances of the orders being made upon the application of the wife through her legal representative that the applications were made on informed instructions and that the wife, the respondent, had known that they were made after they were made and therefore knew the contents and the meaning of the orders, in particular, the order of Justice Rose which continued the more detailed original order of the judicial registrar.
HAYNE J: Can I just understand a little better than I do the statutory or rule foundation for the question that arises. If we go to the Family Law Rules, is rule 20.57 engaged in this matter?
MR FAGAN: I do not have the rules, your Honour. I am not sure what 20.57 states. I have cited it in our legislation in our submissions.
HAYNE J: Rule 20.57 provides that:
An order may be enforced against a person only if:
(a) a sealed copy of the order is served on the person; or
(b) the court is otherwise satisfied that the person has received notice of the terms of the order.
Was that engaged in this case?
MR FAGAN: It was not a case of seeking to enforce the order in terms of seeking to have it carried out by the exercise of the powers of the marshal or other executive officer attached to the court. This was a proceeding for breach of the order and for punishment for breach. It was not, in our submission, within that rule. If it were and therefore depended upon the court being in one way or another satisfied that the party had obtained notice of the order, then that certainly was addressed by the evidence that was led. His Honour found that the party had become aware of the order.
HAYNE J: That presents a further question - again, I would have thought you would need access to the rules to answer – whether Part 21.1 of the rules was engaged.
MR FAGAN: Again, we have not referred to that in our legislation.
HAYNE J: Until we can understand the relevant statutory framework within which this is occurring, there is I think some difficulty.
MR FAGAN: We maintain, your Honour, that the relevant statutory framework is section 112AP.
GLEESON CJ: This seems to be dealt with in a judgment of Chief Justice Evatt referred to on page 39 of the appeal book, but I have not seen a copy of that judgment.
MR FAGAN: That judgment was cited by the learned primary judge only to establish what it was that had to be proved against the alleged contemnor with respect to the contents and meaning of the orders. In the context in which this application was brought, the rules which his Honour Justice Hayne has cited were not invoked by either party and not relied upon and ‑ ‑ ‑
HAYNE J: It is a matter about which I, for my part, would wish to be satisfied. Perhaps one of those instructing you or your junior might arm you with a copy of the rules because without them you will not be able to answer my questions. It would seem to me on the face of things that Part 21.1, governing as it does applications for enforcement of orders, contravention of orders and contempt of court, was engaged. It then seemed to me, untutored, that rule 20.57 was engaged. The relevant provision, although in form an application for punishment for contempt, seemed to me to be an application that perhaps fell within rule 20.57. If that is right, that then presents the question for the court. The court at first instance had to be satisfied of what? Satisfied that the person has received notice of the terms of the order.
MR FAGAN: Assuming that that rule were engaged on that basis, your Honour, that is a question that his Honour did address and that is what he found in paragraphs 44 and 45.
GLEESON CJ: The question as framed in the paragraph of the judgment in that case of Georgopoulos on page 39 of the appeal book is expressed in slightly different terms. although whether they are materially different is another matter. The question that the trial judge addressed was whether he was satisfied beyond reasonable doubt that Mrs Mead knew of the contents of the order insofar as they related to the sale and mortgage of the property.
MR FAGAN: That is how his Honour noted the principle stated from that judgment.
GLEESON CJ: Is that the same as or different from the question whether the person has received notice of the terms of the order?
MR FAGAN: I would submit that that is the same, that in any event, that his Honour in paragraph 44 went further and was satisfied that her Honour knew the contents and the meaning of Justice Rose’s order because the way his Honour approached it was to have regard to the duties of the solicitor and the ordinary conduct of legal practice and that what he has done in paragraphs 44 and 45. On the basis of that, effectively, what is conveyed by his reasoning there is that he has inferred that the solicitor must have told the client what was being sought on her behalf and must have informed her when it was obtained and there was ample reason for so inferring.
GLEESON CJ: The reasons of the primary judge do not seem to have covered the whole of the evidence that was available to him. I only say that because we do not have the evidence that was available to the primary judge, but when you look at the reasons of the Full Court they refer to some evidence potentially supportive of the conclusion of the primary judge such as an examination of a court file by Mrs Mead at one stage or further proceedings between Mr and Mrs Mead about sales of property.
MR FAGAN: Yes, those other pieces of evidence fell into two time periods before the first breach of orders which was in November 2001. Before that the husband had applied to the court to vary the existing blanket restraint on dealing with matrimonial properties to the effect that he could sell certain properties and use the proceeds of realisation to apply in costs in related proceedings. He had served an affidavit which had attached to it the original judicial registrar’s order and referred in the body of the affidavit to the decision of Justice Rose extending that earlier order. The earlier order, made in August 1999 had run only until 7 September, but Justice Rose subsequently extended it. The original order was attached and reference was made to the extension of it.
Now, that application brought by the husband relying on an affidavit that contained that material was contested by the respondent. In late October 2001 there was a contested hearing before Justice Cohen himself in which the husband pursued his claim to sell some properties and thus vary the existing blanket restraint. So there was that material that the court could have reference to. The next material came after the first breach of the orders but before the second. It came in, I think, early 2002 when on the wife’s evidence she had inspected the court file in reference to making an application related to Justice Cohen’s variation orders of late ‑ ‑ ‑
GLEESON CJ: On the wife’s evidence where?
MR FAGAN: I will just turn up the reference to that. It was referred to ‑ ‑ ‑
GLEESON CJ: There was no evidence of the wife relevant to the matter with which we are concerned, was there?
MR FAGAN: No, there was an affidavit that the wife had filed in another – earlier than the contempt proceedings.
GLEESON CJ: Was that affidavit tendered as evidence in the contempt proceedings?
MR FAGAN: Yes, it was.
GLEESON CJ: At the breach stage?
MR FAGAN: Excuse me just a moment, your Honour. On appeal book 78 the reference is given for that. It was tendered. On appeal book 78 in paragraph 58 of the majority judgment in the Full Court:
Reliance was sought to be placed on an affidavit sworn by the wife on 21 February 2003 –
She deposed to having filed the notice of appeal and having inspected the court file in November 2002. So that was in between the two breaches.
GLEESON CJ: All right. That is an example of evidence that was before the primary judge that we have not seen. Your client brought this application under section 112AP of the Act, is that right?
MR FAGAN: Yes.
GLEESON CJ: Section 112AP(3) says:
The applicable Rules of Court may provide for practice and procedure as to charge him with contempt and the hearing of the charge.
Do you see that?
MR FAGAN: Yes.
GLEESON CJ: Which are the applicable Rules of Court? Where can we see the “Rules of Court” referred to in section 112AP(3)?
MR FAGAN: I am afraid, your Honour, that we have not produced those. Your Honours, so far as I am aware in the course of the contempt application and the subsequent appeals the only aspect of such rules that have been dealt with has been the rules that related to service of the application. You may have observed that in the early part of Justice Cohen’s judgment he dealt with an application on behalf of the husband to reopen to adduce evidence relating to that and ‑ ‑ ‑
GLEESON CJ: Yes, in fact I think most of Justice Cohen’s judgment is devoted to that aspect of the matter.
MR FAGAN: Yes, it is concerned with that.
GLEESON CJ: Well, now, we are looking ‑ ‑ ‑
MR FAGAN: So, when your Honour asks me about the rules that govern the contempt procedure, acknowledging that there are such rules, as far as I am aware the only ones that have been invoked or litigated are those that are dealt with in that part of the judgment, otherwise neither party has contended that any aspect of the rules bore upon what had to be proved in substantively making up the contempt.
GLEESON CJ: That may be so and it may be that because the Family Court is far more familiar with proceedings of this kind than we are they assumed all sorts of things that we do not know.
MR FAGAN: Yes.
GLEESON CJ: But we are seized of the matter now and we have a litigant in person, a self‑represented litigant.
MR FAGAN: Yes.
GLEESON CJ: Therefore, we would like to be able to look at the rules that everybody in the courts below assumed.
MR FAGAN: Yes, I regret that in order to be able to bring them to your Honour’s attention I would need a little time out of Court, not very long, but I have not come prepared to argue that without any notice that anything –from the other party without any notice that anything was in contention in that regard.
GLEESON CJ: One thing that does seem to be the case, because it is expressly stated in this judgment of Georgopoulos referred on the bottom of page 39 is that it is not necessary to serve a sealed copy of the court order. At least that is the received view in the Family Court. I do not know what the date of this decision of Georgopoulos is, but since it was in the time of Chief Justice Evatt it is not a recent decision.
MR FAGAN: No, it is a decision from the early 1980s I am told by Mr Bedrossian. Your Honours, on the assumption that rule 20.57, to which I have earlier been referred is applicable, the want of proof of service of a sealed copy of the orders would not be an impediment to satisfying the requirements of that rule, whether it is proof otherwise that the party has been informed of the contents of the order.
GLEESON CJ: That does not seem unusual. In Borrie and Lowe, Lowe’s work on contempt, they say that in the English procedure where the form of contempt is breach of a restraining order or injunction you do not have to prove service of a sealed copy of the order. So if the Australian rules or the Family Court Rules are to the same effect, that probably would not be surprising.
MR FAGAN: No, that is consistent with substantive law. Now, there is a slight difference, as I may have already pointed out, between what is quoted in paragraph 43 and what is found in paragraph 44 and that is that Justice Cohen went a little further and was satisfied that the respondent knew not only the contents relevant to the contempt, but the meaning. One would really follow directly from the other having regard to the very simple language of the orders. They appear earlier in the appeal book at the relevant part at page 5 after line 50. The initial order of the judicial registrar on 30 August was:
That pending further order of the Court, the Husband and the Wife be and are hereby restrained from selling, transferring, encumbering, alienating or otherwise dealing with any real property in which they currently have an interest.
The Full Court stated, and it is not quite clear whether any conclusion really followed from this, but they did state at one point that it could not be assumed that a person of reasonable intelligence would understand the order drafted by legally trained people. That is at page 81 in paragraph 63. The statements are made:
the orders themselves having been drafted by lawyers and made by judicial officers in terms which a lay person of reasonable intelligence could not be presumed beyond reasonable doubt in the Briginshaw sense to know and understand.
There was no question of presuming anything here. His Honour inferred it and his Honour inferred it from the circumstance that in the ordinary course of things there would be a communication between solicitor and client.
GLEESON CJ: Where exactly does Briginshaw come into it? Is the standard of proof in proceedings of this beyond reasonable doubt?
MR FAGAN: We accept that it is, yes.
GLEESON CJ: Assuming that is right, where does Briginshaw come into it?
MR FAGAN: Really we would have said that it was not relevant.
GLEESON CJ: I thought Briginshaw was to do with cases where the standard of proof was a civil standard but where the seriousness of the allegation was of a certain order.
MR FAGAN: That is also how we understand it, your Honour. The Full Court cited extensive passages from it at appeal book 80.
GLEESON CJ: The primary judge thought the standard of proof was beyond reasonable doubt.
MR FAGAN: Yes, he did.
GLEESON CJ: Why is that so? I am not challenging it, I am just asking why is it so.
MR FAGAN: The decision of this Court in Witham v Holloway has accepted that these matters must be proved beyond reasonable doubt and that was accepted by both parties throughout. Here, consequently, where we were talking about proving a relevant element, namely knowledge of the contents of these orders relevantly to the contempt, where we were talking about proving that by circumstantial evidence, it followed from that, according to the usual principles, that reasonable hypotheses consistent with innocence had to be excluded and his Honour recognised that as well. The error that we have spoken of thus far in the Full Court’s dealing with the matter, the majority’s dealing with the matter, is encapsulated in paragraph 87 which is at appeal book 90.
GLEESON CJ: I think it goes back a little earlier than that. If you look at paragraph 29 on page 68, the Full Court interpreted a statement by Justice Murray in a case of Angelis as requiring the approach that they adopted, I think.
MR FAGAN: That statement really was, with respect, of little utility to the argument. It would be accepted that one could not assume anything. The matter was never put forward by the applicant husband on the basis of assumptions, it was put forward on the basis of inference from surrounding circumstances. In Angelis all that Justice Murray was saying was that if husband’s counsel was in court one could not assume that information reached the husband, but here the trial judge had a lot more surrounding circumstances than that. He had, for a start, the circumstance that an undertaking had been given, an undertaking as to damages. The terms of the orders recorded earlier in the appeal book recite that the orders are made after hearing legal representatives, just the legal representative of the respondent on the first application – that is at appeal book 5 – and then the legal representatives of both parties when the orders were extended by Justice Rose.
HAYNE J: That at once provokes this question. The contempt as found was a very specific contempt, was it not? It was contempt of a particular paragraph of the order of Justice Rose. What exactly is the inquiry that it was incumbent on the Full Court to focus upon?
MR FAGAN: When your Honour says a contempt of an order of Justice Rose, Justice Rose’s order can only be understood by reference ‑ ‑ ‑
GLEESON CJ: Yes, but it was the effective order.
MR FAGAN: Yes, it was.
GLEESON CJ: There was an order by Registrar Johnston then it was continued by Justice Rose and it was, if I can put it this way, not discontinued or not varied by the third relevant order.
MR FAGAN: The order was varied but not relevantly to these problems, yes.
GLEESON CJ: Yes, so it was the order of Justice Rose that was the effective foundation of the contempt.
HAYNE J: That was as found at page 41, paragraph 47. Those were the findings made by the primary judge.
MR FAGAN: Yes, and the order itself is to be seen at appeal book 8 at about line 45. It is to be noted that at line 30 it is recorded that this order was made:
UPON APPLICATION made to the Court AND UPON HEARING the legal representatives for both parties . . .
3. That upon the wife giving the usual undertaking in relation to damages, I continue the orders made 30 August 1999 –
What I was seeking to point out by contrast with the very sparse statement made by Justice Murray in Angelis is that here there was an order that was made upon application of the wife’s legal representative originally. It was continued upon application of the wife’s legal representative. The legal representative gave an undertaking as to damages. The legal representative apparently, from what appears in order 6 on page 8 and the first order on page 9, also sought that costs be quantified. The order was one that not only bound the husband, but bound the wife herself.
GLEESON CJ: Yes, I do not think that anyone would suggest there is anything surprising about that. These were parties who one would infer from some of the things that are said in the judgments both – or between them – had substantial assets, a number of properties, and at a very early stage of their dispute the wife sought and obtained what might be called a general freezing order preventing either of them from dealing with her interests in properties.
MR FAGAN: Yes. All those circumstances in which that general freezing order was obtained and one that was binding upon herself as well as her opponent in the litigation are circumstances from which the primary judge would have it well open to him to infer that observing the usual duties of a legal practitioner it simply could not have been sought without telling the respondent wife what was being sought on her behalf and that the undertaking was being given and that the order, if obtained, would bind her and it having been made it was equally an inference open to the learned trial judge that that would be something that would not occur in the ordinary course of things, without it having been made, he would tell his client the order is made and it binds you and you have given an undertaking as to damages, or “I’ve given it on your behalf with respect to binding your husband”.
Those were available inferences. That is a much stronger position that Justice Murray saying in Angelis one just cannot assume from the fact that counsel is in court the client knows of something.
GLEESON CJ: Suppose you are right. Suppose the majority in the Full Court erroneously, as appears or as may appear from the third‑last sentence in paragraph 87 on page 90 of the appeal book, believed that the existence of legal professional privilege was in some way a bar to the drawing of the inference that the primary judge drew. Suppose you are right about that? It would seem to follow from that that the parties have not had a proper hearing of the appeal against the decision of Justice Cohen.
MR FAGAN: That would be determined by looking at the grounds that were raised.
GLEESON CJ: We do not even have in the appeal book before us the evidence that was before Justice Cohen.
MR FAGAN: No, you do not because it has been perceived that there is only an upsetting of the findings made by Justice Cohen in paragraphs 44 and 45 on the ground stated in paragraph 87. If it is erroneous, the Full Court itself or the majority recognised that, but for their application of legal professional privilege, his Honour’s conclusion could stand.
GLEESON CJ: Where did they recognise that?
MR FAGAN: That is at paragraph 95, page 93, towards the bottom of the page. They referred to ‑ ‑ ‑
GLEESON CJ: I just do not follow. The primary judge, as I read his reasons, did not place any reliance on the wife’s failure to give evidence or the solicitor’s failure to give evidence other than to observe the indisputable fact that there was no countervailing evidence to rebut the inference that he was minded to draw.
MR FAGAN: Yes, and what the ‑ ‑ ‑
GLEESON CJ: It was a statement of the obvious.
MR FAGAN: In the appeal grounds before the Full Court there were two points made about what the learned trial judge had reasoned at paragraphs 44 and 45. One was it was said that he had drawn his inference in reliance upon the wife having claimed privilege, which is a different point from what was in fact argued before the Full Court. One can see the transition early in the Full Court’s reasons when they explained what arguments were made to them. I will come back to that if you wish.
The second point that was made about the learned trial judge’s reasoning was that he had said in the absence of explanation to the contrary, and from that those words were seized upon to assert that his Honour had inferred knowledge of the orders because the wife had remained silent, but that was not really so. What the learned trial judge had done was he had taken the surrounding circumstances to which I have referred, the nature of the orders, the undertaking and so on, and, having regard to usual conduct of legal practice, had inferred there must have been communication. There was his primary evidence, there was his inference and his conclusion. Then he was comforted and supported to hold to the conclusion in the absence of any explanation to the contrary which might have been evidence from the respondent, might have been from her solicitor or the tender of something.
GLEESON CJ: Mr Fagan, can I take you back to the grounds of appeal on page 48. The 17 December 2004 judgment is the one we are concerned with, is it not?
MR FAGAN: Yes, it is, your Honour.
GLEESON CJ: The 30 May 2005 judgment is the penalty judgment.
MR FAGAN: Yes, your Honour.
GLEESON CJ: We are not concerned with that, right?
MR FAGAN: Correct.
GLEESON CJ: Have the Full Court dealt with that one yet?
MR FAGAN: No, because it was not necessary. All these grounds came up for argument ‑ ‑ ‑
GLEESON CJ: Then she has never had a hearing of her appeal against penalty?
MR FAGAN: No, and we have recognised that in the orders that we seek here.
GLEESON CJ: Coming back to the first one with which we are concerned, look at paragraph 1.
MR FAGAN: Yes, that was a general allegation of error of conclusion about knowledge and then it was broken down to the particulars in paragraph 2.
GLEESON CJ: You say 2 limits 1?
MR FAGAN: No, and we did not take that position before the Full Court, but what the wife’s representatives sought to do in explaining or asserting that there was error on the part of his Honour was to give a particular analysis in ground 2 and then there was a slightly different analysis given in the Full Court hearing. In ground 2 what is said to have been impermissible about the drawing of the inference from the evidence is that, it is said:
his Honour, impermissibly, drew inferences adverse to the respondent as to the existence of primary facts ‑ ‑ ‑
GLEESON CJ: Was the appeal to the Full Court an appeal by way of rehearing?
MR FAGAN: Yes. What they have asserted in ground 2 is that his Honour had drawn these inferences in consequence of the respondent’s failure to give evidence on the topic. Now, that was a reliance upon those words “in the absence of explanation” in paragraph 44. Then they go on:
and drew adverse inferences from the appellant’s failure to give evidence of privileged communications –
That is not really what the Full Court decided. The Full Court did not say that there was a wrongful drawing of a conclusion imputing something to the respondent wife because she had claimed her privilege. It was rather that, accepting that the privilege could have been claimed, accepting that there was no attempt to adduce direct evidence of the communications between her legal representatives and herself, accepting all of that the court said one cannot infer from other admissible and received evidence what must have been the communications between the two. That is a different point from what was raised in the grounds.
In any event, the different point was agitated in the Full Court and the arguments were raised and we met them there, but the outcome, we are submitting, in paragraph 87 was erroneous. In answer to what your Honour asked me earlier about the appeal against the May judgment, the subsequent judgment, all of that was argued but the Full Court simply did not go on to deal with it having overturned the conviction of contempt.
What I was seeking to say about paragraph 95 on page 93 is that the Full Court having referred to paragraph 44 of the primary judgment and having stated their interpretation of it, they went on to say at line 51:
If, as Senior Counsel for the husband would contend, it was open to the trial Judge to reach that conclusion on the evidence, his Honour would have been entitled to rely upon the wife’s failure to “offer an explanation” in the manner, and on the basis explained by the High Court in the authorities to which we have referred.
The authorities to which they had referred by that stage consisted primarily of this Court’s decision in Weissensteiner and there was extensive citation of the passages in which the Court said that where an inference was available on some admissible evidence of guilt or of an element material to guilt, then if the matter was something of which the accused person, who was entitled to remain silent, would be expected to have knowledge and no explanation is offered, then the court could place reliance upon that as a basis for taking greater comfort in the other objective evidence and in the inference drawn.
The Full Court had cited extensive passages to that effect by the time this stage in the judgment is reached and the consequence is that where the Full Court here at line 52, approximately, refers to that conclusion, they are referring back to his Honour’s conclusion that because these orders would not be sought and obtained without the legal representative communicating to the client, that therefore one could infer that the client had learned of the application for the orders and that the application was successful in its terms.
So, at the end in this paragraph, the majority is saying that if paragraph 87 of their judgment is put aside, if the inference was open to be drawn, permitted to be drawn, and not barred by any invocation of legal privilege, then there was a prima facie basis for the judge to have inferred the wife’s knowledge of the orders. Then the court goes on to say that if that is right then there was nothing wrong with the way his Honour used the fact that no contrary explanation had been offered.
GLEESON CJ: Yes, but their appellate responsibility, if they had got to that point, was to decide the case for themselves, was it not?
MR FAGAN: I submit, with respect, no, that ‑ ‑ ‑
GLEESON CJ: Subject to the usual rules about the exercise of the power of appellate intervention in a case where there is an appeal by way of rehearing.
MR FAGAN: Really, all they had to do in light of that conclusion in paragraph 95, if they had not made the error at paragraph 97, all they had to do was look to his Honour’s reasoning and determine, on the basis of it, that there was no criticism to be made of it. It was open to his Honour.
GLEESON CJ: But it would not have been enough for the Full Court to say, would it, “There was evidence upon which his Honour could have come to that conclusion”. They would have to go further and at least say, would they not, “No error has been demonstrated in his Honour’s reasoning”.
MR FAGAN: Yes, I accept that.
GLEESON CJ: In other words, it was not enough to ask whether a prima facie case had been established.
MR FAGAN: I accept that, but their Honours did really treat it that way. Their Honours did not see any error, did not see any basis for making a different inference from the surrounding circumstances apart from the fact that it was thought one could not use these circumstances to impute what must have been communicated between solicitor and client. That was all they saw that was wrong.
GLEESON CJ: I have a little trouble with that, Mr Fagan, because the Full Court, if I could use this expression, got into some of the evidentiary material that does not seem to have been mentioned by the primary judge. For example, at one point you see the Full Court dealing with the question of the significance attaching to the fact that Mrs Mead went through the file and they said that that may be significant in relation to the 2003 breach but it could not be significant in relation to the 2001 breach because she did not go through the file until later.
MR FAGAN: Again, they considered the evidence relating to the earlier opportunity of notification to the wife which was the affidavit served in connection with the application to vary the orders in late 2001. Paragraph 99 of their judgment at page 95 of the appeal book is material to that. They stated:
it ought to have been a relatively simple matter to have served the orders of 30 August and 7 September 1999 upon the wife at any time in the two years following the orders having been made or, to have annexed a copy of Rose J’s order of 7 September 1999 to the husband’s 2001 affidavit in support of his application -
In fact, what they had before them was evidence, which they accepted, that there had been annexed to that affidavit of 2001, the more detailed order of the judicial registrar, the earlier order, and a statement in the affidavit that Justice Rose had continued it. That appears in paragraph 52, appeal book 55. I am sorry, the top of 77 is the relevant part of paragraph 52.
The analysis that is given in the dissenting judgment of Justice May, which I think is at appeal book page 99, paragraphs 109 to 111, part way through paragraph 109 Justice May said:
Whilst of course it is correct that for reasons of privilege the solicitor could not have been forced to give the evidence, the wife could have waived that privilege. I agree with the trial Judge that it is very hard to believe that a solicitor would have obtained orders and given undertakings without instructions and then subsequently not informed the client of the outcome. That would have been contrary to her duty to her client. If she had not informed the wife then that evidence could have been given to the Court.
So that is stated in a different way, in an affirmative way, what the learned trial judge reasoned. One would infer that ordinary duties would have been observed and thus knowledge would have come to the wife. One would not take the contrary possibility without evidence of it being given. If no evidence was given, then one would remain confident in the original inference drawn, all entirely consistent with Weissensteiner and no conflict with principles of legal professional privilege.
CRENNAN J: Was the solicitor asked whether there was a communication after the orders were given?
MR FAGAN: The wife’s solicitor never gave evidence.
CRENNAN J: I am sorry, I thought in paragraph 109 there was a suggestion that the solicitor gave some evidence.
MR FAGAN: If that was what their Honours intended, it is not correct; the solicitor did not give evidence.
CRENNAN J: That is not correct, very well.
GLEESON CJ: As I understand what happened before Justice Cohen, but correct me if I am wrong, first of all, the proceedings were segregated between what I might call the breach aspect and the penalty aspect, which is not surprising, but on the penalty aspect the applicant for relief, which was the husband, led his evidence and then at the conclusion of that evidence it was announced that there was to be no evidence for the respondent, is that right?
MR FAGAN: His Honour gave a determination on the breach on contempt first.
GLEESON CJ: But how did he come to – when he determined whether there had been a breach, he did it without hearing any evidence from the respondent.
MR FAGAN: Yes.
GLEESON CJ: Was that because somebody had told him that the respondent desired to lead no evidence on that issue?
MR FAGAN: That is so. Certainly not her own but – yes. No, that is correct.
GLEESON CJ: This is another respect in which we are at a disadvantage. The judgments make extensive reference to written argument on behalf of the parties, both at first instance and on appeal. We do not have that. I have inferred that what happened was that at the breach stage of the contempt proceedings it was said that there was no evidence, oral or documentary, to be led on behalf of the respondent, the alleged contemnor.
MR FAGAN: That is the case.
GLEESON CJ: Then apparently there was an attempt, a successful attempt, by the husband to reopen the evidence for the applicant in relation to service of the application.
MR FAGAN: That is so, your Honour.
GLEESON CJ: But subject to that, the evidence was concluded and the judge decided the issue of breach adversely to Mrs Mead and then some time later dealt with the question of breach and at that stage of the proceedings he heard fairly extensive evidence from the solicitor.
MR FAGAN: At the later stage his Honour heard evidence with respect to penalty. He opened the proceedings with respect to penalty. He heard evidence from the wife’s parents, from the wife herself, as far as I am aware.
GLEESON CJ: From the solicitor?
MR FAGAN: Not the solicitor. The evidence from those parties concerned how the properties that had been sold in breach of the orders had been paid for, and the like, what was the source of the funds.
GLEESON CJ: We do not know, and I suppose it is not relevant for us to know, what Mrs Mead’s evidence on the question of penalty was.
MR FAGAN: No, it is not relevant, in our submission. The judgment was given on the basis of evidence directed solely to the question of breach.
GLEESON CJ: That question of penalty remains unresolved. It is an aspect of the appeal from Justice Cohen that the Full Court has never dealt with.
MR FAGAN: That is correct, your Honour. That is why the orders that we seek if the appeal is upheld are that the matter be remitted to that court to determine then to give their judgment upon the argument that they heard with respect to penalty because they have never done so.
GLEESON CJ: A possible point of view – and I invite you to say anything more that you want to say about this – is that if you are right in your main argument, the proper course for us to adopt is to remit the whole matter to a differently constituted Full Court of the Family Court on the basis that the parties have not had a proper hearing of their appeal on the question of breach. If you are right, the hearing on the question of breach was affected by an error of law.
MR FAGAN: That is what we submit, but when the error of law is taken out of it, when the judgment of the majority in the Full Court is reviewed for what consequences that error of law had, then one can determine that the Full Court found no other basis for upsetting what the learned trial judge had done.
GLEESON CJ: But we do not have the evidence.
MR FAGAN: Your Honours have the conclusion of the learned trial judge for which no other ground of setting it aside or interfering with it was demonstrated.
HAYNE J: Our jurisdiction is to make such order as the Full Court of the Family Court should have made. How can we do other than remit it, it if you are right in your principal ground, when we do not know what material was before the Full Court of the Family Court?
MR FAGAN: What the Full Court of the Family Court did was to upset a trial judge’s decision on the basis of an application of legal ‑ ‑ ‑
HAYNE J: I understand that but, assume that argument of yours were to succeed, we would then stand in the shoes of the Full Court of the Family Court. How can we do that? We do not have the material upon which that court was asked to determine the appeal. I cannot even tell readily from the index to the appeal book what material was before the trial judge, let alone what material was before the Full Court, whether it was in relation to penalty, whether it was in relation to contempt or not. I mean, I assume that the evidence bearing date in 2005 was all in connection with questions of penalty, whereas the affidavit and oral evidence bearing date in 2003 or 2004, is that all in relation to contempt or no contempt? I do not know.
MR FAGAN: This Court placing itself in the position of the Full Court, looking at what the learned trial judge did, taking out the basis that the majority propounded for interfering with his Honour’s reasoning, there simply is no basis. This Court does have before it as undisputed facts that the original order of the judicial registrar was applied for by the wife’s legal representative, that the undertaking as to damages was given, that the application for extension was made, all the other facts, the primary facts which the learned trial judge took into account.
There one has, in paragraphs 44 and 45, a reasoning from that material to a conclusion that in those circumstances and applying the court’s knowledge of duties and ordinary practice of solicitors that it must have followed the wife would have been informed. One also has the circumstance, admitted common ground right through to the Full Court, that there was no evidence adduced either from the solicitor or wife herself or any other party to contradict the inference which would thus ordinarily and inexorably follow.
Consequently, there is, taking away the wrongful application of legal professional privilege, no basis for an appellate court to interfere with the original trial judge having exercised his precise function in making the reasoning from those primary facts to the conclusion beyond reasonable doubt taking comfort in that from the absence of contrary explanation and thereby observing Weissensteiner and every known principle that can be brought to bear on the topic. In those circumstances, this Court placing itself in the seat of the Family Court can with confidence say that there is no basis for an appellate court to interfere with the learned trial judge’s reasoning.
There was extensive reference in the Full Court’s judgment, the majority judgment, to the concepts of excluding other reasonable hypotheses and so on, but that is the function of the trial judge. As long as he directed himself correctly as a trial judge should correctly direct a jury that he must exclude other reasonable hypotheses, as long as he has done that, then it is not, in our respectful submission, the function of the appellate court, the Full Court, to say there is a hypothesis that is consistent with innocence and we are judging it to be consistent and to be rational and reasonable and we will adopt it. But in any event, they did not attempt to
do that. They did not purport to do that. That would have been a wrong purported exercise of appellate function, but that is not the error that they fell into. Those are our submissions, if it please the Court.
GLEESON CJ: Thank you, Mr Fagan. Mrs Mead, is there anything you would like to say to us about the question which is the subject of this appeal which has nothing to do with the penalty that was imposed but is a question of the finding that you had committed a contempt of court?
MS MEAD: About 11 years ago when these things happen and I have too much on my plate, I have got two young kids, 6 and 9, and I need to tell them that my daughter have disability, so the hospital, psychologist is on my plate and I have got a sinking ship. The company was sabotaged by my ex and we have got a lot of creditor I need to meet. I could not deal with everything, so the third party is doing the legal part and financial part. All I know is I need to focus on my children because they are in the young formative years.
GLEESON CJ: It is probably not a good idea for you to go into the history of what actually went on here in relation to this matter because we are just dealing with a question of whether there was an error made on the part of the Full Court of the Family Court. It is probably not a good idea for you to tell us your account of how you came to be engaged in these real estate transactions. Is there anything you want to say about whether the Family Court made a mistake?
MS MEAD: I do not have the knowledge of the order and, like I said, it is the third party dealing with the legal things and finances and I spoke on the family issue. The Family Court does not realise we have two kids. I was told the solicitor then in the court and he saw the document – mortgage – he witness and he disappear. So, you know, if he sign on a document, you know, 1000 percent he never mentioned anything to me.
I think my ex then knew but they just continue on to threaten me. I mean, I do not know. Maybe in my last life, you know, we have some karma, different idea. I am not too sure, but, in those days my main concern is my children.
GLEESON CJ: We understand that. Thank you.
MS MEAD: Thank you.
GLEESON CJ: We will adjourn for a short time to consider the course that we will take.
AT 11.18 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.25 AM:
GLEESON CJ: This is an appeal from a decision of the Full Court of the Family Court of Australia which, by majority, (Holden and Coleman JJ, May J dissenting), allowed an appeal from Cohen J in relation to proceedings for contempt brought by the appellant against the respondent. Although the respondent was represented by senior and junior counsel at the application for special leave to appeal to this Court, she is without legal representation in the present appeal.
The proceedings for contempt arose out of orders made by Judicial Registrar Johnston on 30 August 1999, by Rose J on 7 September 1999 and by Cohen J on 2 November 2001. For present purposes the operative order was that of Rose J who, on 7 September 1999, ordered:
“That upon the wife giving the usual undertaking in relation to damages, I continue the orders made 30 August 1999 until further order.”
The person referred to in that order as “the wife” was the present respondent. The orders made on 30 August 1999 were made by Judicial Registrar Johnston on the application of the present respondent and they included the following order:
“That pending further order of the Court, the Husband and the Wife be and are hereby restrained from selling, transferring, encumbering, alienating or otherwise dealing with any real property in which they currently have an interest.”
There were two acts of the respondent that were said to have been in contravention of the order of Rose J. The first was that on or about 20 December 2001 she signed as mortgagor a mortgage over a property in which she had an interest, being a property known as the Quoin Island Resort in Queensland. The second was that on or about 14 February 2003 she signed as transferor a transfer of property in which she had an interest, being certain property at Katoomba in New South Wales.
The husband made an application to have the respondent dealt with for contempt of court pursuant to section 112AP of the Family Law Act 1975 (Cth). In accordance with the usual procedure, the issue of alleged contempt was dealt with separately from the issue of penalty. At a hearing before Cohen J in late 2004, the husband, the present appellant, adduced evidence to demonstrate that the wife, the present respondent, was in contempt of court, the alleged contempt being contravention of the order made by Rose J, on 7 September 1999.
One of the issues that arose, and the issue that is relevant to the present appeal, concerned the respondent’s awareness of the order of Rose J. The question was identified by Cohen J, in his reasons for judgment, by reference to a decision of the Family Court in In the marriage of P & C Georgopoulos (1982) 8 Fam LR 807 at 809 as follows:
“It must be taken now that the established requirement is not that there be service of a sealed copy of the court order, but that the court must be satisfied beyond reasonable doubt that the person knew of the contents of the order in so far as they relate to the alleged contempt and knew that the order had been made.”
It appears from the reasons for judgment of the Full Court that there was no dispute in the Full Court that this was the test to be applied. On that issue, Cohen J made the following finding:
“In the matter before me the order allegedly breached was made on the application of the respondent. An identical order had been made ex parte by Judicial Registrar Johnston on 30 August 1999. It was made in the terms of the interlocutory application which had been filed on behalf of the wife. On the return day, 7 September 1999, Justice Rose, after a defended application continued the orders made by the Judicial Registrar. It is inconceivable in the absence of any suggestion to that effect that the applications made to the Judicial Registrar and to Justice Rose were made without the wife’s informed instructions to make them or that she did not know the orders she had sought were made in the form she had sought and therefore that she did not know the contents and meaning of Justice Rose’s order.
In her dissenting judgment in the Full Court, May J concluded that there was ample evidence before Cohen J to support that finding and that no error had been shown in the reasons of Cohen J given for reaching that finding.
This Court does not have before it the evidence that was before Cohen J and the Full Court. It appears from some of the things said in the reasons for judgment in the Full Court, that in addition to the matters to which Cohen J referred in his reasons, there was evidence to show that, between the time of the making of Rose J’s order and the dealings in property in question, there had been further proceedings between the appellant and the respondent relating to the question of sales of property and variation of the order made by Rose J and, in addition, that at some time between the first relevant dealing and the second relevant dealing the respondent had personally examined the whole of the court file. We were informed that this appeared from an affidavit, sworn by the respondent in other proceedings, that was tendered in evidence before Cohen J.
Having found contempt, Cohen J, in separate proceedings, dealt with the question of penalty and imposed penalties that subjected the respondent to terms of imprisonment. Those orders apparently were stayed and remain stayed pending the outcome of the appellate proceedings. We are not concerned with the issue of penalty. It was the subject of an appeal to the Full Court of the Family Court, but in the events that occurred it was unnecessary for the Full Court to deal with that matter. It appears that, in the course of the proceedings relating to penalty, the present respondent gave evidence but we are not aware of what she said.
The majority in the Full Court of the Family Court allowed the appeal against the finding of Cohen J that there had been contempt. The majority attributed to Cohen J legal error in the way in which he considered the question whether it had been shown beyond reasonable doubt that the respondent knew of the order of Rose J.
In this Court, the appellant submits that the basis upon which the majority in the Full Court allowed the appeal was affected by error of law. For the reasons that follow, this submission should be accepted.
The key paragraphs in the reasons of the Full Court are paragraphs 68 to 87. It is unnecessary to set them out. It is sufficient for present purposes to say that the majority in the Full Court took the view that, because communications between the present respondent and her solicitors were the subject of legal professional privilege, it was not open to the primary judge to draw an inference that she knew the terms and meaning of Rose J’s order in circumstances where the evidence did not show either that she was in court when the order was made or that she had been served with a sealed copy of the order. Since the most likely source of the respondent’s knowledge of the order was her solicitor, the majority appeared to think that drawing an inference that she knew of the order would in some way be inconsistent with legal professional privilege. There is no such inconsistency.
No question of legal professional privilege arose in the proceedings before Cohen J. Neither the respondent nor her solicitor gave evidence, nor was there any attempt on the part of the appellant to adduce any evidence about communications between the respondent and her solicitor. The rule relating to legal professional privilege does not prevent the drawing, from events and circumstances, of inferences about the knowledge of a party, even if the probable source of such knowledge is a privileged communication. It is a rule that precludes the adducing of evidence in certain circumstances, but it is a rule that had no bearing on the present case.
If, as Cohen J and May J concluded, the facts and circumstances of the case supported, indeed compelled, an inference that the respondent knew of, and understood the meaning of, the order made by Rose J, then the consideration that neither she nor her solicitor could have been obliged to reveal communications that passed between the two of them did not stand in the way of acting on the basis of such an inference.
The circumstances that were regarded by Cohen J and May J as relevant included the following. The order made by Rose J was made on the application of the respondent through her solicitor. The nature of the order was not difficult to comprehend. The evidence indicated that the parties to the proceedings in the Family Court had extensive property interests. The order of Rose J was a general freezing order that prevented both parties from alienating any of their property interests until further order of the court. Following the making of Rose J’s order, there were further proceedings between the parties relating to variations of those orders and, as was earlier mentioned, there was an occasion on which the respondent inspected the court file.
The majority in the Full Court also criticised that part of the reasons of Cohen J in which he said:
“It is inconceivable in the absence of any suggestion to that effect that the applications made to the Judicial Registrar and to Justice Rose were made without the wife’s informed instructions to make them…”
There was argument in the Full Court based on decisions such as Weissensteiner v The Queen (1998) 178 CLR 217 as to the relevance in criminal proceedings of the circumstance that an accused person has not given evidence. In the present case all that Cohen J did was to point to the incontrovertible fact that he was dealing with the question of inferences to be drawn from the events and circumstances of the case in the absence of any countervailing evidence that might have been given by the respondent or her solicitor. It was a fact he could hardly have ignored. He simply pointed to the fact that the evidence upon which he had to decide the case was that adduced by the present appellant and he then asked himself legitimately what was the inference to be drawn in that state of affairs.
Because the majority in the Full Court of the Family Court erroneously considered that the law relating to legal professional privilege was an impediment to the drawing by Cohen J of the inference that he drew, and by implication concluded that the law similarly precluded the Full Court from drawing any such influence, the parties to the appeal to the Full Court have not had a proper consideration of the first of the grounds of appeal to the Full Court, which was that Cohen J erred in concluding as a fact that the respondent was aware of the terms of the orders made by Rose J on 7 September 1999 and that the order had been made.
This Court does not have before it the evidence necessary to enable it to reach a conclusion on that first ground of appeal. We are in a position to conclude that the Full Court erred in law in its approach to its consideration of the decision of Cohen J, but it remains for the Full Court to deal with the first ground of appeal upon proper principles consistently with the reasons of this Court in this appeal.
Upon a further hearing by a differently constituted Full Court of the Family Court it will be open to the parties to canvass the whole of the evidence that was before Cohen J and to do that in the light of this Court’s identification of the errors made by the majority of the Full Court in the judgment which gives rise to this appeal.
I propose that this Court should make the following orders:
1.Appeal allowed with costs.
2.Set aside the orders of the Full Court of the Family Court of Australia made on 25 August 2006.
3.Remit the matter to a differently constituted Full Court of the Family Court of Australia for hearing and determination in accordance with the reasons of this Court.
4.The costs of the appeal to the Full Court, including the costs of the proceedings in that court up to and including its order of 25 August 2006, are reserved to the Full Court that hears and determines the appeal to that court.
HAYNE J: I agree.
HEYDON J: I agree.
CALLINAN J: I agree.
CRENNAN J: I agree.
GLEESON CJ: The orders of the Court will be as I have proposed. We will adjourn until 10.15 tomorrow.
AT 11.57AM THE MATTER WAS CONCLUDED
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