Mead v Mead

[2007] HCATrans 95

[2007] HCATrans 095

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S343 of 2006

B e t w e e n -

COLIN ANTHONY MEAD

Applicant

and

LUCY GUITAR MEAD

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 MARCH 2007, AT 11.21 AM

Copyright in the High Court of Australia

MR V.V. BEDROSSIAN:   May it please the Court, I appear for the applicant.  (instructed by Etheringtons Solicitors)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.J. COOK, for the respondent.  (instructed by Kennedys Law Firm)

GLEESON CJ:   Yes, Mr Bedrossian.

MR BEDROSSIAN:   If your Honours please, this is an application for special leave that raises both a general public importance issue, in my submission, as well as a matter that in the interests of the administration of justice ought to be considered on appeal.  The additional aspect to that submission is that in very recent times the judgment of the Full Court of the Family Court has become widely reported and relied upon in practice loose‑leaf services.  In that regard, I note that the judgment is reported in the Federal Law Reports, the Family Law Reports, the Family Law Cases and is specifically relied upon in the Butterworth’s Australian Family Law loose‑leaf.

GLEESON CJ:   What is it said to be authority for – for what proposition?

MR BEDROSSIAN:   If I might hand up an extract from the loose‑leaf practice which answers your Honour the Chief Justice’s question.

GLEESON CJ:   Thank you.

MR BEDROSSIAN:   Your Honours, that is an extract from the online version and hence only very recently updated version of that loose‑leaf practice.  If your Honours turn to the Internet printout page 4 of 7 your Honours will see two subheadings, firstly towards the bottom of the page “Onus and standard of proof” and then subsequently “Knowledge of the order breached”.  There are four principles in there in error, in my submission, that are relied upon and cited.  Firstly, under, “Onus and standard of proof” that “contempt must be proved beyond reasonable doubt in the Briginshaw sense”.  Now, that is not specifically a ground of appeal in the draft notice, as your Honours have it.  I have provided to my learned friends a copy of the proposed additional draft that takes issue with that.

GLEESON CJ:   What is that quotation a quotation from?

MR BEDROSSIAN:   That is a quotation from the majority judgment of the Full Court in this matter.

GLEESON CJ:   Where do we find that?

MR BEDROSSIAN:   That is at paragraph 63 of the judgment which is at application book 110, particularly paragraphs 62 and 63 of the judgment.  Now, your Honours, I apologise that that was not included in the draft notice of appeal but it is clearly a significant error in terms of the application of Briginshaw that ‑ ‑ ‑

GLEESON CJ:   Is it a matter that you would wish to add to your notice of appeal if you got special leave?

MR BEDROSSIAN:   Yes, certainly, and I have given notice.  I can hand up the terms of the proposed draft addition if that assists your Honour?

GLEESON CJ:   No, you go ahead and tell us what you say are the other errors here.

MR BEDROSSIAN:   The other errors are under the second subheading, “Knowledge of the order breached” in the first two lines, namely, it states that “The respondent must be proved to have known not only the contents or terms of the order but also their meaning”.  Now, your Honours, I respectfully submit that the line of authority – the very clear line of authorities, that that is not the test.  The proper test is that someone understood the nature of the orders and that the orders had been made.

In my submission, there is a very distinct and very fundamentally important difference between knowing the nature of orders and knowing their meaning, and that distinction takes on a greater life, a more significant life of its own in the case of the Full Court’s judgment in this case, because the majority also applied a presumption, it seems, to the effect that a lay person such as the respondent in this case could not be presumed to know what court orders made by a judge or drafted by a lawyer actually meant.

CALLINAN J:   Kind of a “man on the Clapham bus” test?

MR BEDROSSIAN:   More or less, but that is a test that is not subjective.  That is a test resolved by reference to the actual words used in the order.

GLEESON CJ:   I had rather expected that your challenge was likely to be aimed at what appears on page 119 in paragraph 87.  I did not quite follow the use in their reasoning process that the majority made of legal professional privilege.  I may be misreading the judgment but I got an impression that they thought that because the communications between the lawyer and the client were the subject of legal professional privilege, the consequence was that in some way the trial judge could not draw an inference about what the client knew.

MR BEDROSSIAN:   That is precisely what the majority said, and they said so expressly.  That is a ground of challenge on the part of the applicant.  I should say that the difficulty I have is that there are quite a number of grounds of challenge of the judgment, and so the question was the starting point, but that is a very significant one upon which I rely, and that is covered in the draft notice of appeal and in the written submissions already provided – the summaries of argument.

Effectively, what the Full Court – the majority there has done is excluded the ability to draw inferences about something that otherwise was never compellable or admissible in evidence, save and except for the circumstance that the respondent may have decided to waiver privilege to provide an explanation in the sense described in Weissensteiner v The Queen.

GLEESON CJ:   But the fact that you cannot compel somebody to give evidence about something does not mean you cannot draw an inference that it happened.

MR BEDROSSIAN:   Precisely.

GLEESON CJ:   Especially when they are keeping quiet about what actually occurred.

MR BEDROSSIAN:   Indeed, and that is in fact what this Court has said previously, directly and indirectly, in Weissensteiner, RPS and also in Azzopardi that the ability to stay silent can bear consequences.  It is a case of whether the other evidence is sufficient for drawing inferences about knowledge.

GLEESON CJ:   We thought we might be assisted to hear from Mr Walker.

MR BEDROSSIAN:   If your Honours please.

MR WALKER:   I take your Honours to where conveniently one finds the statutory root of this which is at page 108 of the application book.  The issue before the Full Court was the propriety of a finding that there had been a contempt committed, being that stipulated in section 112AP(1)(b) namely, it:

constitutes a contravention of an order under this Act –

that was common ground, not an issue, and then importantly –

and involves a flagrant challenge to the authority of the court.

It is the “flagrancy” in particular that brought to the forefront the question of my client’s knowledge of the order.  My learned friend is, with respect, entirely correct to draw to attention that there appeared to be – or there is the suggestion of a relevant – maybe even decisive distinction between knowing the content and knowing the meaning of an order.  We do not essay either a legal or philosophical defence of the importance of any such distinction.  It is clear, however, it did not play a part in the disposition of the case in the Full Court.

What their Honours held was that there was insufficient material, evidentiary in nature, which could support an inference to the appropriate state of satisfaction – I will come back to that – that could lead to a “flagrant challenge”.  Now, it is not, we think, sought to be argued against that in order for something too be a “flagrant challenge to the authority of the court” that the epithet “flagrant” will in practically every case that one can imagine require that the order contravened be an order which the alleged contemnor knew had to be obeyed and knew what it required in terms of disobedience.

In our submission, that will ordinarily mean that you need to know – to use a combined but not distinguishing phrase – the content and meaning of the order.  It would be silly to suggest that you need to know the wording verbatim, but you would need to know, for example, that it stops me from doing X.

CALLINAN J:   Mr Walker, I would have thought that the property and the disposition of the property and what could or could not be done with it would have been matters of the most intense interest to your client.

MR WALKER:   Your Honour, it would be idle for me to contend to the contrary.

CALLINAN J:   And once you start with that foundation then that can give rise to a number of inferences, I would have thought, which are readily available, according to any standard of persuasion required.

MR WALKER:   Your Honours have seen ‑ your Honour is, with respect, appropriately summarising the effect of the facts with which we have to contend, that is, we cannot contend against them, namely, that the application for the initial order which was an order restraining both husband and wife was made by the wife, my client.

GLEESON CJ:   And the fact that your wife subsequently complained about the husband’s disposition of property?

MR WALKER:   Quite so.  However, in a case which required to be treated as a criminal case, albeit within the contempt jurisdiction, in our submission, it was appropriate for the most strict scrutiny of the capacity of the material which was put before the court on the critical question of knowledge to see whether it would support a finding of contempt.

GLEESON CJ:   Mr Walker, what is the process of reasoning being engaged in in paragraph 87?

MR WALKER:   Your Honour, it would appear that when one puts that together with 85 and 86, 87 is playing this perhaps entirely hypothetical and collateral role.  If the trial, their Honours are reasoning - the hearing had proceeded differently from the way it did, then the question of what the wife had been told, she, it being demonstrated, not having been in court when either of the sets of orders were pronounced, would have involved the question or the possibility of the applicant for committal – my friend’s client, the husband – seeking to prove from the lawyer what the lawyer had or had not told the client, the wife, my client.

Their Honours were there supposing something that clearly did not happen because we know from what they collect in paragraph 85 that they had looked very minutely at the record and identified only one point during colloquy between Bench and Bar when the matters of the evidentiary basis for a finding that my client knew what the order prevented her from doing was debated, and it had no such step contemplated.  It is for those reasons that one finds at line 49 on page 118:

There was thus neither the opportunity for the wife to object –

a puzzling expression at first, but our reconstruction and explanation is that that is referring to what would have happened had there been the calling of a witness and the asking of a question.

GLEESON CJ:   If she had not been told by her lawyer the nature of these orders, she would have been anxious for the lawyer to be called by somebody and asked what he told her?

MR WALKER:   Yes, your Honour.

CALLINAN J:   Also you could assume, could you not, that the lawyer would have performed his duty and told her what the orders were and what they meant, how they restrained her, if there were any ambiguity ‑ ‑ ‑

MR WALKER:   Your Honour, no, but that needs to be explained, that answer.  In what might be called ordinary life, that assumption is so reasonable that were it falsified one would immediately start thinking in terms of something extremely odd about the client or something deficient about the lawyer.  It is that safe an assumption, I accept that.  That is in ordinary life.  That is in dealings between client and solicitor.  This is an allegation of a criminal nature carrying the possibility of imprisonment by way of sanction.  So the question as to whether one can safely proceed upon the basis of assumptions becomes a question as to whether those with the onus of proof ‑ ‑ ‑

CALLINAN J:   Mr Walker, all of those matters point very strongly to the likelihood, that being the consequence, that the lawyer would have performed his ordinary duty.

MR WALKER:   Your Honour, the question as to whether an assumption is a sufficient basis ‑ ‑ ‑

CALLINAN J:   Inference.

MR WALKER:   The inference comes only from the fact that there was a client/solicitor relationship, the solicitor had sought orders from which it might be inferred they were authorised to do so, and the solicitor obtained orders from which it might be inferred that if things went according to usual expectation, if things went according to usual expectation, there would have been report back.

GLEESON CJ:   There is another element of it, is there not?  There seem to have been substantial amounts of property involved here?

MR WALKER:   Relatively so, yes.  There were also substantial lapses of time, although your Honours will appreciate the first alleged breached in the mortgage was, I think, the day after a court appearance, and your Honours have seen that fact drawn to attention.

Your Honours, can I seek to explain how we understand paragraph 87, finally, by saying that if paragraph 87 were to be read as, in effect, a snooker to all such contempt applications, apart from the happy accident that somebody revealed the otherwise private dealings between them and their solicitor, say, in correspondence, then it would be indeed something sufficiently disturbing to justify consideration of special leave.

But this is a statement - as one sees from line 33, the phrase “in the circumstances” at the end of that line - which depends entirely upon the peculiarities of the way in which the facts have fallen out during the hearing of this application, and the facts have fallen out in such a way as to lead now in the application for special leave to what, in our submission, is an over‑ambitious and hitherto undreamt of notion that there is, what is called, a rebuttable presumption of law available to have somebody committed to prison for contempt in order to discharge the onus of proof that somebody sufficiently knew of an order, that their contravention of it should be regarded as a “flagrant challenge to the authority of the court”.

CALLINAN J:   What is the consequence, that in every case of contempt, would you have to call the solicitor and have the client say that privilege was waived, either the client had waived privilege and the solicitor gives evidence or the client gives evidence of the communication of the order?

MR WALKER:   Your Honours, I am bound to point out that one of the peculiarities of this argument was that there does not seem to have been any consideration given to the provisions of sections 121 and 122 of the Evidence Act.  Now, there is exclusion of the legal privilege provisions in relation to the enforcement of orders.  That is not an issue ripe for this Court to consider in these proceedings because it has never been raised, but contempt – one of the reasons, contempt, for example, stands apart from other kinds of ‑ ‑ ‑

CALLINAN J:   I mean, if the Court entertained an appeal, it would have to consider that because ‑ ‑ ‑

MR WALKER:   Your Honour, I draw it to attention because there is no question that that is a legal setting, absent from the way in which this case has been dealt with to date, which needs to be considered ‑ ‑ ‑

CALLINAN J:   And should have been considered here.

MR WALKER:   Yes, your Honour.

CALLINAN J:   It is really a special leave point?

MR WALKER:    Yes, your Honour, but standing where I am, with the brief I have, I seek to use it as a reason why this is not an appropriate vehicle for my client to be exposed to that species of double jeopardy, having been freed by order of the Full Court, now what I will call the prosecutor, not the State, but the prosecutor of contempt charge, is seeking to re‑expose her to the jeopardy of prison and, in our submission, in an argument which cannot avoid looking at provisions of the Evidence Act concerning the unavailability of the privilege which so dominates the curious looking paragraph 87, one cannot avoid looking at other provisions of the Evidence Act.

Now, your Honours, when one then goes back to the robustness of the factual case to which your Honours have drawn my attention, it still comes down to the assumption that there was, in what is plainly a very combative litigation, an awareness by the wife that orders she had sought had a blade aimed at her, not only at her husband, and one thing which one gathers from the record of the ongoing litigation is that this was not a person of whom one could infer as a matter of psychology or understanding of the world that she at all times understood, in this ongoing battle about a considerable amount of property, that she was through her legal representatives, twice in the position of having sought an order that bound her with the same penalty of possible contempt proceedings against her as against her husband.

In other words, that is an aspect of this order, the fact, ironic in one sense, that she had sought it, and it was against her as well as her husband.  That is an aspect which makes most unsafe the assumption that she had been told not merely that she had succeeded in restraining her husband dealing with the property but that she had also succeeded in having a court impose a restraint upon herself.

It is for those reasons that in the absence of material such as, for example, correspondence between solicitors which would have supported, being evidence, a factual inference about communication with the client that there was simply the bare position of client/solicitor relation, the bare position of the original application to justify drawing beyond reasonable doubt the inference that she sufficiently knew that she could not act in the way that she clearly knew she had had her husband restrained from acting so as to support the notion of flagrancy required for her committal to prison.

It is for those reasons that what would otherwise be, as I say, the difficult meaning of paragraphs 85, 86 and 87 in the majority’s reasoning should not be a matter of concern exciting a grant of special leave when somebody has, as I say, been placed in a position that that would constitute a form of double jeopardy.

Can I move to the matter that my learned friend, with respect, properly and appropriately raises as another point were he to get special leave.  I cannot and do not attempt to justify in any sense the expression at 110, paragraph 62, line 15 “proved beyond reasonable doubt in the Briginshaw sense”.  Briginshaw is quoted as to a classic passage on page 109 of the application book, and at about line 30 one sees a sufficient demonstration of the inappropriateness of that phrasing.  I quote:

Except upon criminal issues to be proved by the prosecution, it is enough –

et cetera.  However, what can be seen is that that does not provide an appropriate ground of a grant of special leave because it cannot be shown that their Honours, for example, misdirected themselves so as to ease the position of the person accused of contempt.  Obviously, the applicant for

special leave can hardly complain that the burden of proof of the contempt was lowered in his favour.  That is, therefore, not, in our submission, a point that deserves anything other than the observation that it is an unfortunate phrase which should not have been used and is apt to mislead.

One can say in this case that it did not mislead to the detriment of the applicant for special leave.  The husband was clearly not prejudiced by the possibility introduced by the civil notion of the Briginshaw sense, and clearly not prejudiced by the possibility that reduced in their Honours’ minds the cogency of proof required to make out the “flagrant challenge” to the court’s authority.

Your Honours, that therefore brings this case down to a case which, on appeal, will necessarily involve the Court in revisiting the question whether the finding of contempt was one which could safely have been made out beyond reasonable doubt.  In turn, there is no question, we accept, that raises questions of a kind considered by this Court most strikingly in Weissensteiner.

Unlike Weissensteiner’s Case where there was the evidence of those on the yacht when it left port, and those fewer on the yacht when it returned to port, here, there is no evidence of the critical matter that my client had ever been informed that her successful application against her husband had resulted not only in his being restrained from dealing with property but also in her being restrained from dealing with property.

It is for those reasons that this is a case of the kind contemplated by this Court in Weissensteiner, namely, that silence, including the refusal or failure to call possible evidence is not to be used to fill gaps in a prosecution case.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  Mr Bedrossian, we are inclined to consider that your application should be granted but there are some infelicities in the draft notice of appeal in addition to the gap that you have referred to earlier that might require some attention.  Just one that I might direct your notice to is in paragraph 11 which prompted an observation made by Mr Walker.  You are not suggesting, are you, that there is some kind of presumption of law that people know something?

MR BEDROSSIAN:   The reason the agency issues and the presumption issues were put forward was as an attempt, and I accept that it might have been overreaching to somehow apply principle to this quite untenable situation brought about by the Full Court’s decision, so I accept that that is a stretch.

GLEESON CJ:   You might like to reconsider that.  For example, that word “presumed” in paragraph 11 of your draft notice of appeal, I presume ought to mean “held”.

MR BEDROSSIAN:   The contention was for a rebuttable presumption, that is, that in the absence of any evidence the Court, as a matter of its knowledge of the ordinary course, would accept that as having occurred, but ‑ ‑ ‑

GLEESON CJ:   You do not want your experience to be any more bruising than absolutely necessary, Mr Bedrossian, so I would reconsider that rebuttal presumption part of your case.

MR BEDROSSIAN:   No, all right, I will.  If your Honour pleases.

GLEESON CJ:   All right.  In this matter there will be a grant of special leave to appeal.

MR BEDROSSIAN:   If your Honours please.

AT 11.48 AM THE MATTER WAS CONCLUDED