Pelechowski v The Registrar, Court of Appeal
[1998] HCATrans 349
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S62 of 1998
B e t w e e n -
KARL PELECHOWSKI
Appellant
and
THE REGISTRAR, COURT OF APPEAL
Respondent
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 8 OCTOBER 1998, AT 11.56 AM
Copyright in the High Court of Australia
MR A.J. McQUILLEN: May it please the Court, I appear for the appellant. (instructed by Greg Walsh & Co)
MR P. MENZIES, QC: If your Honours please, I appear with my learned friend, MR R.P.L. LANCASTER, for the respondent. (instructed by the Crown Solicitor for New South Wales)
GAUDRON J: Yes, Mr McQuillen.
MR McQUILLEN: Thank you, your Honour
GAUDRON J: Yes, do I have to do something about bail?
MR McQUILLEN: The position, as I understand it, is that bail was granted on certain terms at the special leave application and the concerns about bail to myself and my instructing solicitors became evident last week or the week before and an application was made last week in chambers to his Honour Justice Kirby. It appears that the conditions of bail, which were reporting conditions, we understand from inquiries made, have been substantially complied with. The difficulty that I am in, and my instructing solicitor is in, and which was adverted to to Justice Kirby, was that complete contact had broken down with the appellant and his legal advisers, and the position is that his requirement is to report to the sheriff in Sydney today.
The stipulation in the bail order conditions was that he present himself on the date to be fixed for hearing, that is today, it does not specify a time. Now I cannot inform your Honours as to what the position is so far as the appellant presenting himself to the sheriff in Sydney at this stage, although I point out that although the condition of bail was that he present on a day to be fixed, and that date was notified to him, and I think a time may have been stipulated to him by letter by the Registrar, it does not appear at the moment, we do not know whether he has presented himself or not. My instructing solicitor tells me that on inquiry he has made of the Registrar at the moment that there is a belief that he has not presented himself as at this moment.
GAUDRON J: Yes, well we will proceed to the substance of the argument at this stage.
MR McQUILLEN: Thank you, your Honour.
KIRBY J: Could I ask you a matter at the outset which, in a sense, might be relevant to the matters that you have lately put to the Bench. The bottom line is that you suggest somewhere in your submissions towards the end that he has already served his sentence. There is no power in anyone to, as it were, resentence him. Does that mean that the issue we are going through is a completely academic or theoretical exercise?
MR McQUILLEN: Yes, your Honour. My submission would be, as I have indicated in my written submissions, that effectively the period of the sentence having run, he should now be released unconditionally.
KIRBY J: There were suggestions in the Court of Appeal in Young’s Case that the Parliament of New South Wales should amend the law to make clear the power of the Court to resentence. That has not been done.
MR McQUILLEN: I understand not, your Honour.
GUMMOW J: Our power comes from section 73 of the Constitution, not the law of New South Wales.
MR McQUILLEN: Yes, and that is a matter ‑ ‑ ‑
GUMMOW J: Tait’s Case makes it very plain.
MR McQUILLEN: Your Honour, the matter was adverted to in Malvaso v The Queen.
GUMMOW J: It is a rather bold submission for you to make.
MR McQUILLEN: In the absence of, as I understand it ‑ ‑ ‑
GUMMOW J: Particularly in the face of what is said by Mr Menzies and Mr Lancaster in paragraph 38 of their submissions.
KIRBY J: Presumably, just going back to the matters that began the submissions, were we out of our power to sentence the appellant, he would have to be here to be able to answer to the matters upon which we, separately, were sentencing him. This would not be a confirmation of an order made by the Court of Appeal.
MR McQUILLEN: Precisely.
KIRBY J: It would be a matter of our imposing a new sentence of our power.
MR McQUILLEN: Precisely.
KIRBY J: That could not be done in his absence.
MR McQUILLEN: Precisely, your Honour.
KIRBY J: All these matters may not arise if you were to win the case on the merits so it may be that what Justice Gaudron said is the right thing, that we should just proceed to hear the appeal and come to the consequences a little later.
MR McQUILLEN: Yes. I am cognisant of the fact that the undertaking was given and that that ‑ ‑ ‑
GUMMOW J: In circumstances in which Tait’s Case was mentioned.
MR McQUILLEN: Yes.
GUMMOW J: And evidently not understood.
MR McQUILLEN: Well, your Honour, it was certainly understood by myself.
GUMMOW J: Well, I doubt it.
MR McQUILLEN: The only matter that concerned me, and that is why it has been included in my submissions, is as a result of what was said during the special leave application when this question was raised by counsel for the respondent and I understood what the then Chief Justice said, Chief Justice Brennan, at page 447 of the appeal book when this question of the terms of the bail order were referred to, his Honour said:
That is something which itself can be determined by the Full Court at the hearing of the appeal.
I do not seek to advance that matter any further other than it was raised by the Chief Justice at that time.
KIRBY J: But, as I understand it, that was so that the Full Court can determine whether, either by the restoration of the order below or by exercising the power of this Court, some order should be made which has the effect of restoring the custodial sentence.
MR McQUILLEN: Yes.
KIRBY J: But that is a significant question of itself.
MR McQUILLEN: It is a significant question, and ‑ ‑ ‑
KIRBY J: You are not giving that point away.
MR McQUILLEN: I am not giving it away but what I say is that in this case it may not become necessary to determine it because, if we were successful on the other merits - but it seemed to me from what the Chief Justice said then, and what was said in Whan v McConaghy that that may be something which this Court would want to consider.
KIRBY J: If the Court was exercising its constitutional power, as the Court established by the Constitution, it may be that notices would have to be given under section 78B of the Judiciary Act.
MR McQUILLEN: That is what crossed my mind and that is something that was considered.
KIRBY J: It would be an odd result that the fact that you get exercise rights to appeal and lose mean that you walk away scot-free. That would be an odd result, but that has been a problem that I remember has concerned the Court of Appeal of New South Wales, in the light of Whan’s Case, I thing it is, in this Court.
MR McQUILLEN: Your Honour dealt with that problem in, I think, Young’s Case, in the New South Wales Court of Appeal, and I think in Parker v The DPP, and ‑ ‑ ‑
KIRBY J: Well, I diverted you into this. I think it may be better for you take up Justice Gaudron’s invitation at the outset and - - -
MR McQUILLEN: Yes.
GAUDRON J: Yes, Mr McQuillen.
MR McQUILLEN: This appeal arises from the findings and orders of the New South Wales Court of Appeal in respect to proceedings by way of summons that came before it, for contempt charges directed to the appellant and one other person, Penelope Jane Stephens, and that matter was dealt with by the Court of Appeal, in so far as findings were made ‑ ‑ ‑
KIRBY J: Was Ms Stephens the subject of any proceedings for contempt or not?
MR McQUILLEN: The position is, as I understand it, your Honour, she was the subject of the receipt of a summons, but I understand that the Crown withdrew that summons against her.
KIRBY J: She had not been the subject of an order by Judge Christie?
MR McQUILLEN: She had.
KIRBY J: First, personally?
MR McQUILLEN: She had.
KIRBY J: She had, I see.
MR McQUILLEN: And there is something I would wish to say about her involvement or lack of involvement in the proceedings, both before the District Court and the – well, certainly in the District Court of New South Wales.
The New South Wales Court of Appeal made a finding that the appellant had committed wilful breaches of an injunction granted by his Honour Judge Christie on 15 April 1994. As a result of that finding, the court heard the appellant on the question of penalty and ordered that, as a result of the nature of the breach of the order, that the appellant be sentenced to a fixed term of imprisonment of six months.
The finding of the New South Wales Court of Appeal was to the effect that the appellant had committed a wilful breach of the order and that the appropriate sentence in that court’s view was a period of the six months imprisonment. Bail was applied for and refused. Subsequently, bail application was made to his Honour Mr Justice Gummow in chambers and bail was granted. Then subsequently the special leave application was dealt with and bail was continued under the terms ‑ ‑ ‑
KIRBY J: Are you aware of any contest to the factual background that you have set out in your written submissions?
MR McQUILLEN: Contest?
KIRBY J: Yes. Is there any complaint that it is not accurate or complete?
MR McQUILLEN: I do not believe so, your Honour. I do not believe so. I have not been informed of any, no, your Honour.
GAUDRON J: Well, we are familiar with the facts, in any event, and the history, so you need not spend too much time on it.
MR McQUILLEN: No, thank you. Those bail orders are at page 449 of the appeal book. The orders of the District Court judge, his Honour Judge Christie, was, in my submission, a drastic step in that your Honours will know from the fact that judgment was entered on 15 April 1994, immediately following the giving of a verdict his Honour proceeded to deal with a notice of motion which had been put on and filed in March 1994 after the commencement of the hearing of the proceedings on 2 February 1994 at Parramatta. What happened was that his Honour transferred the proceedings from Parramatta to Sydney and in the interim the judgment creditor- well, became the judgment creditor, Mr Rahme, had a notice of motion seeking the type of order restraining both Stephens and the appellant. The order was expressed, your Honours, in the terms that the defendants be restrained from selling or otherwise disposing ‑ ‑ ‑
GUMMOW J: On which page does that appear, the order?
MR McQUILLEN: I am sorry, your Honour.
GAUDRON J: Page 94?
MR McQUILLEN: Your Honour, what the position is that there is an order at page 94 of the appeal book, which does not not contain ‑ ‑ ‑
GUMMOW J: Where does one find the Mareva order?
MR McQUILLEN: The Mareva order is found at page 92 in the middle of the page, the large paragraph.
GUMMOW J: Was this order ever taken out?
MR McQUILLEN: Well, your Honour, it does not appear that way. The order of page 94 of the appeal book is the order that was the subject of annexure to an affidavit which was the order that was served. There is some dispute on the evidence about that, whether it was served in May 1994 or in August 1994.
KIRBY J: Did the Court of Appeal find that it had been served?
MR McQUILLEN: It did.
KIRBY J: Was that after your client had given evidence denying that he had received it?
MR McQUILLEN: I think the position was that ‑ ‑ ‑
KIRBY J: I was just wondering whether we should act on the assumption that your client has been found to have received the order so that we do not get into a ‑ ‑ ‑
GAUDRON J: I think the Court of Appeal proceeded on the basis that he was present in court when the order was made and sufficiently understood it.
MR McQUILLEN: And that was my point that I raised in the Court of Appeal and the Court of Appeal determined that against me on the basis that, because he was present in court and because the District Court Rules, Part 32 rule 17, do not require service of an order, as an otherwise order, then it need not be served, whereas, in the Supreme Court Rules there is such a provision. One of the indicia that I will be coming to is the fact that an otherwise order should have been made in this situation and was one of the matters that we rely upon, demonstrative of error and having regard to the circumstances in this particular case.
KIRBY J: That would not strike at the validity of the order, though, would it? That may have been something that ought to have been done and a complaint about the procedures, but it would not strike at the validity, I would not have thought. Where is the other order? There is one at page 94 and you told Justice Gummow that there was another one somewhere?
GUMMOW J: It just appears in the course of page 92.
MR McQUILLEN: Page 92, your Honour.
GUMMOW J: It seems to start at line 20 and then go through to line 31, then it picks up again at line 57 and goes over the page.
MR McQUILLEN: Yes, but the reason ‑ ‑ ‑
GUMMOW J: The order was to continue until further order or payment of the verdict.
MR McQUILLEN: Yes, that is correct, your Honour. Now, the reason at point 57 was that his Honour the District Court judge was looking for some evidence of the title of the property and that became forthcoming.
GUMMOW J: Yes, well that is apparent.
KIRBY J: In effect, he made, as you complain, after judgment, the order which had been sought by Mr Rahme as an interlocutory order before judgment.
MR McQUILLEN: Correct.
KIRBY J: So that he went on to do that. Was Mr Rahme still pressing that order at the time that his Honour went into giving his reasons; was that revealed by the transcript or not?
MR McQUILLEN: Yes.
KIRBY J: Both parties were unrepresented, were they not?
MR McQUILLEN: No, Mr Pelechowski was present and Ms Stephens did not appear at the hearings at all. There was some evidence of service of the notice of motion. Mr Pelechowski was present, Ms Stephens was not present and there was no one there to represent her. Indeed, it was made clear that Mr Pelechowski in the District Court judge’s mind could not appear for her, so therefore she effectively was unrepresented and not in person.
GUMMOW J: The notice of motion which is not reproduced, item 5 in the index, what is that?
MR McQUILLEN: I think that is the motion of the appellant, which was a motion to stay or strike out.
GUMMOW J: I see.
KIRBY J: Do we have the motion of Mr Rahme seeking the interlocutory order which became the order on page 92?
MR McQUILLEN: Yes, page 46, I think it is, your Honour. In particular, order 1.
KIRBY J: I see that is at Sydney, so that must have been after Judge Christie heard the witness who was from interstate, and then transferred the matter into Sydney. A motion was set by her father, Mr Rahme, but it was not heard until it was listed with the substantive matter and dealt with after the disposition of the substantive matter. Is that correct?
MR McQUILLEN: That is correct. What actually occurred was that after it was adjourned on 2 February, it appears that the plaintiff, Mr Rahme, filed a motion, that motion at page 46, and an affidavit which appears at ‑ ‑ ‑
GUMMOW J: But the return date was 15 April.
MR McQUILLEN: That is correct.
GUMMOW J: What did people think then? What date was it filed, 29 March, is it?
GAUDRON J: Twenty‑fifth, I think. The affidavit says 25 March.
MR McQUILLEN: Yes, 29 March 1994 is the best date we have on the documents that were available.
GUMMOW J: What was then going to happen in the party’s contemplation on 15 April. Was there some adjournment for that date, or was the trial finished, or ‑ ‑ ‑
MR McQUILLEN: It was part-heard; could not finish at Parramatta.
GUMMOW J: But it was set down to resume on the 15th, was it?
MR McQUILLEN: Yes.
KIRBY J: And did it resume on that date?
MR McQUILLEN: Yes. That is the date of judgment.
KIRBY J: I follow, yes, so it is.
GUMMOW J: And his Honour’s judgment in the main action was ex tempore.
MR McQUILLEN: Correct. In fact, the proceedings commenced at about 10 am and finished before one o’clock. I think, Mr Pelechowski, the appellant, did not give evidence. He cross‑examined Mr Rahme and another witness. The earlier witness was in the ‑ ‑ ‑
GUMMOW J: Was he represented?
MR McQUILLEN: Mr Pelechowski, no. On that matter of the motion, I should make this comment at this stage, that it would appear from the transcript or that it does not appear from the transcript how the circumstances came about that motion to be issued and returnable that day. Suffice it to say for the moment that motion did come into being and the evidence is, at page 42, when his Honour adjourned the case he adjourned Mr Pelechowski’s motion which was returnable and that was the stay motion. That was returnable on 28 March 1994. He removed that out of the list for that date and included it in the list before himself on Friday, 15 April.
KIRBY J: So that the position was that when the matter was listed in Sydney from Parramatta on 15 April there were really three processes before the court: one, the substantive suit by Mr Rahme; two, Mr Pelechowski’s motion which fell away when Mr Pelechowski lost on the merits and, three, the procedural motion by Mr Rahme and the matter then proceeded as if all three matters were before the judge.
MR McQUILLEN: Yes.
KIRBY J: As I understand it, you have really three conceptual issues before us: one, did the judge have power; two, was the sentence, if he did have power, excessive and three; if those are answered adversely to you, is there power to restore a sentence upon your client in the light of the fact that he has served his sentence in the theory of the law.
MR McQUILLEN: Yes.
KIRBY J: So they are the three conceptual issues. You did not complain in your special leave application nor as, I think, in the notice of appeal, about anything wrong in the procedures that were followed before the judge at first instance?
MR McQUILLEN: The procedures were wound up with this question of power and jurisdiction.
KIRBY J: But are you complaining to us now - I would like to understand this - that the judge should not have dealt with the motion of Mr Rahme as distinct from that you say that he had no power to make the order that Mr Rahme suggested?
MR McQUILLEN: I am sorry, your Honour. What my submission will be, in that respect, is this, that this was a motion that was brought on quickly. It provided for a return date on the resumption of the hearing and the service was effected the night before, on one view of the evidence, at the best two days before the motion was returnable.
KIRBY J: But is there a ground of appeal that there was a denial of natural justice or procedural fairness in dealing with it in any case.
MR McQUILLEN: No, your Honour.
KIRBY J: Well why are we taking time on this when there is a substantive ‑ ‑ ‑
MR McQUILLEN: Only that, your Honour, this is a circumstance of the background of the manner in which his Honour the District Court judge dealt with an order in the nature of a Mareva injunction on 15 April.
GUMMOW J: Well, it seems, certainly from paragraphs 2 and 3 of the motion, and 4, what was sought was relief of an interlocutory nature pending final determination.
MR McQUILLEN: Yes.
GUMMOW J: Because I suppose there was some risk that on the 15th the judge might reserve his decision in the main ‑ ‑ ‑
MR McQUILLEN: Correct, your Honour. These are all matters ‑ ‑ ‑
GUMMOW J: But the order that was made does not seem to reflect that.
MR McQUILLEN: No, not at all, and indeed ‑ ‑ ‑
GUMMOW J: But it may, nevertheless, have been within power to do it, even though it was not sought.
MR McQUILLEN: Yes.
GUMMOW J: And there was some misunderstanding about it. The order that was made is until payment of a verdict.
MR McQUILLEN: Correct. Indeed order 2 and 3 were relief that was – one would expect to be before his Honour which – in the manner in which the motion was dealt with on 15 April 1994 it was done immediately after judgment when Mr Pelechowski had indicated a position that he wished to, I think, because it had come so close to the hearing, he wanted an opportunity to have it put before a legal person and he says that in the transcript to his Honour Judge Christie.
GUMMOW J: At page - - -?
MR McQUILLEN: Page 82.
GUMMOW J: Thank you.
MR McQUILLEN: In fact, I have to apologise, your Honour, 82, 83 and 84 are repetitious. There is three pages there the same, so it is 82 at point 20. Your Honours, so far as this order is concerned, my submission that I make in my ‑ ‑ ‑
GUMMOW J: Just before you do tha, could you assist me in this respect: how would one in New South Wales by traditional methods enforce this judgment with respect to the property at Kippax Place by common law execution? What would you do?
MR McQUILLEN: Well, I believe, your Honour what would have to happen is you would have to go through the normal remedies that are available.
GAUDRON J: What are they?
MR McQUILLEN: Well, a garnishee, a writ of fi fa.
GAUDRON J: Well, exactly, a writ of fi fa. Why do you not, when you have got a judgment, simply apply for a writ of fi fa, register it on the title and then go?
MR McQUILLEN: Yes. Well, the complaint ‑ ‑ ‑
GAUDRON J: That, as I remember – I mean, it may well have changed but as I remember it, it is not a cumbersome procedure once you have got judgment. You arrive at the registry with a copy of the judgment and an affidavit saying that it is unsatisfied and then ask for a writ of fi fa to issue.
MR McQUILLEN: And, further, your Honour, in this case, it appears that no attempt has been made to execute on this judgment other than the application, if it be in that form, by way of notice of motion to obtain a restraining order which was not expressed in terms until execution or some other remedy which my submission is that all that order could do was to go to that effect, namely, that an order in the nature of a Mareva injunction, or whatever it may be, can only be used in aid of execution and that was not the order in this case and ‑ ‑ ‑
GUMMOW J: And that is your power point, in substance.
MR McQUILLEN: Yes.
KIRBY J: These may be arguments which go to whether the order ought to have been made, but we are still to be convinced, are we not, as to whether the order was valid or whether, that is to say, within jurisdiction.
GUMMOW J: Your submission is, it goes to power.
MR McQUILLEN: It goes to power and your Honours ‑ ‑ ‑
KIRBY J: Why does it go to power?
MR McQUILLEN: Because it is an order that was made, not in the manner in which an order of that nature can be issued ‑ ‑ ‑
KIRBY J: But that is a complaint about the manner in which the judge went about what he did and that can be corrected by an appeal.
MR McQUILLEN: Mr Pelechowski did lodge an appeal on 11 July 1994 and this is one of the very vices, we say, that occurred with this type of order. He was shut out, effectively, because he was in a position where, in challenging this order by way of an appeal, a security for costs order was made against him and he was just not in a position to pursue the appeal further. I say that with, there are other matters as well, but essentially coming back to the point of this particular order, it is one where, in my submission, it is not within the power of the District Court judge to make, and indeed, certainly it is arguable whether a superior court of record has a power to make, post judgment. The reason for that, in my submission, is that an order of this nature is interlocutory in its usual form. It is a drastic remedy, after judgment ‑ ‑ ‑
GUMMOW J: Well, it is not in its usual form, and it has not been known in any other form, has it? It may have, but I do not know of it.
MR McQUILLEN: Your Honour, what I will be coming to is: what was this order that his Honour issued? It does not have any recognition under authority or principle. In my respectful submission, the District Court judge who is exercising a statutory jurisdiction of an inferior court ‑ ‑ ‑
KIRBY J: But the Court of Appeal held, as I understand it, that because a District Court judge has power under the District Court Act to do what a Supreme Court judge had done, whatever the basis of the Supreme Court judge’s power they inherited by virtue of that statutory provision. So, it is not a matter of inherent, it is not a matter of implied; it is a matter of express.
MR McQUILLEN: My submission is that if it was going to be available, the legislature should express it in terms that ‑ ‑ ‑
KIRBY J: The Court of Appeal held they did by saying that they get the powers of a Supreme Court judge.
MR McQUILLEN: My submission is that because of the nature of the court, it has to satisfy or establish by means of the statutory authority that it can do that.
GAUDRON J: You have two points, have you, really? First, you say that the relevant provision of the District Court Act confers a power to grant injunctions in aid of rights - traditional, equitable injunctions only.
MR McQUILLEN: Yes.
GAUDRON J: That is your first point. As a matter of construction, it does not apply to pick up the Riley McKay section, whichever it is.
MR McQUILLEN: Precisely.
GAUDRON J: Your second point is, even if it does pick it up, this injunction is outside the terms, is beyond the power that would be conferred by that section.
MR McQUILLEN: Correct.
KIRBY J: We had better have a look at the provisions of the District Court Act, because the Court of Appeal found to the contrary in both those propositions.
MR McQUILLEN: What I was trying to spell out, your Honours, was what was said by Sir Frederick Jordan in his papers ‑ ‑ ‑
GUMMOW J: Perhaps you should take us to the paragraphs of the Court of Appeal which deal with this topic, the two points Justice Gaudron put to you. Are they dealt with in the Court of Appeal?
MR McQUILLEN: Yes, your Honour, it was dealt with at page 358.
KIRBY J: I see they deal, at 354, with the question of sufficiency of notice. Is that what you were raising earlier, that it was only served the night before?
MR McQUILLEN: That was the notice point in relation to the appellant being present in court.
KIRBY J: I see. So we do not have to worry about that?
MR McQUILLEN: I think that I cannot argue that. What the Court of Appeal said, at page 358, in effect, was that, about line 30, because there was no equivalent to section 23 of the Supreme Court Act, the inferior court did not have the same inherent jurisdiction as the Supreme Court. I think what my argument was there was that the Supreme Court has inherent jurisdiction. Section 23 confirms that jurisdiction, and does not take it any further.
GUMMOW J: Section 23 of the Supreme Court Act does not talk about injunctions, does it?
MR McQUILLEN: No, it does not, your Honour.
GAUDRON J: Is it confined to “in any action”? No, it just says it “shall have all jurisdiction”. Section 23 of the Supreme Court Act is concerned with the jurisdiction.
MR McQUILLEN: “For the administration of justice”, “necessary for the administration of justice”.
KIRBY J: But the linchpin of the Court of Appeal’s decision seems to start at the top of page 358 and section 46(1) of the District Court Act says:
the Court –
meaning the District Court –
shall, in any action -
and I think it is agreed that this was an action –
have power to grant any injunction…which the Supreme Court might have granted if the action were proceedings in the Supreme Court”.
The suggestion is that you thereby pick up both the powers granted under section 23 of the Supreme Court Act and the inherent power of the Supreme Court because you are picking up the entire power which the Supreme Court might have granted if there were proceedings in the Supreme Court.
MR McQUILLEN: And that, on the face of it, may appear very clear but my argument is that: one, this was a section that came into being before the remedy known as the Mareva injunction; secondly ‑ ‑ ‑
KIRBY J: I do not think that matters, does it? I mean, if subsequently you discover that out of the inherent power or out of a power like section 23 the courts develop injunctions which are called Mareva injunctions, then that is just a power which the Supreme Court might have granted if the action were proceeding in the Supreme Court.
MR McQUILLEN: I say that there is a distinction when it comes to the question of inherency and when the question arises as to the power of the court to make or give any injunction it sees fit which is necessary for the administration of justice. After all, the Supreme Court of New South Wales has a supervisory jurisdiction over the District Court.
GUMMOW J: Section 23 is talking about a jurisdiction, not the powers.
MR McQUILLEN: Yes.
GAUDRON J: I mean, this Court has never confirmed, as I understand it, the Riley McKay decision. It has referred to it but it has never confirmed that 23 of the New South Wales Supreme Court Act is a source of power for Mareva-type injunctions.
MR McQUILLEN: Thank you, your Honour. We appreciate that.
GUMMOW J: It is differently expressed at section 23 in the Federal Court Act which we have been hearing all about the last two days.
MR McQUILLEN: Yes.
GUMMOW J: It talks about:
in relation to matters in which it has jurisdiction, to make orders of such kinds –
et cetera, as it thinks appropriate.
KIRBY J: I think Riley McKay has been referred to with approval in this Court, or apparent approval, at least it is my impression.
MR McQUILLEN: I think, with implicit approval in a form of mind reading, but ‑ ‑ ‑
GAUDRON J: But, the source – it has been referred to with implicit approval in relation to the grant of Mareva injunctions but not, I think, as to the source, as to the power being located in section 23 of the Supreme Court Act.
KIRBY J: Leaving aside the precise source and whether it is in section 23 in the inherent power and implied power of a court, or some other basis, do you say that the order of the kind which was made here was one which the Supreme Court might not have granted if the action were proceeding in the Supreme Court?
MR McQUILLEN: Yes.
KIRBY J: Why?
MR McQUILLEN: Because it is a remedy, in my respectful submission, that is not one that is covered by the inherent jurisdiction of the court, not available to the court in so far as it is necessary for the administration of justice. In other words, there are remedies available to a judgment creditor and it is - and I am mindful of the most recent decision which has been brought to our attention by the Registrar of Soinco - however, it is my submission that a remedy available to a judgment creditor - where there are remedies available to a judgment creditor, an order of this nature is not necessary for the purposes for the administration of justice, and as I understand it ‑ ‑ ‑
KIRBY J: This is all tied into the submission that you cannot make an injunctive order that are called Mareva after judgment.
MR McQUILLEN: Correct.
KIRBY J: And that the Supreme Court’s power did not extend so far. The jurisdiction of the Supreme Court, inheritor of the royal prerogative, established by charter, did not have the power to make this. You would have to talk a long while to convince me of that.
MR McQUILLEN: Your Honour, if it was a case where it was necessary in the administration of justice to make such an order and there would be cases, such as the equitable execution, then that is a different matter but, in this case, where there is purely a judgment and a judgment creditor then applies, without any impediment to execution, to ask for an order for a Mareva injunction of that type, or some order in that nature, that is, a restraining order, it is not a matter that would fall within the power of the court to do so unless ‑ ‑ ‑
KIRBY J: That seems to me to be a complaint about the making of the order and whether it should have been made on this occasion and whether it should have been made in this way, all of which I fully understand. It does not seem to me to be a complaint about the power to make the order, if the power of the District Court judge is that which the Supreme Court might have granted in the action were the proceedings in the Supreme Court because, on the face of that express provision, that seems to incorporate into the District Court judge’s powers the very, very large power of a judge of the Supreme Court which, I remind you, is not a statutory court; it is a court which is the successor to the courts of Queens Bench.
GAUDRON J: All courts in Australia are statutory courts.
KIRBY J: No, the statutory provision in the Supreme Court Act merely continues the Supreme Court as formally established.
GUMMOW J: Under Imperial legislation.
McHUGH J: By a charter. ‑ ‑ ‑
KIRBY J: By a royal charter.
GUMMOW J: To which the so-called charter was a schedule.
MR McQUILLEN: There is a distinction here as to the jurisdiction which a Supreme Court has and a superior court of record, to that of a – well the Federal Court is a statutory court, but it is a superior court, stated to be one, I think.
GAUDRON J: They are matters relevant, you say, to the construction of 46(1) in the District Court Act.
McHUGH J: It is not really 46(1) that has to be looked at, although that is the only section that is relied on. Section 46(2) provides that:
In relation to the power of the Court to grant an injunction under this section:
(a) the Court and the Judges shall, in addition to the powers and authority otherwise conferred on it and them, have all the powers and authority of the Supreme Court and the Judges thereof in the like circumstances –
If anything, 46(2) extends.
MR McQUILLEN: Yes, but can I say this, your Honour, if the legislature intended for this remedy to be available to a District Court, that is a remedy of a post‑judgment, and indeed, my submission is, and my written submissions, pre‑judgment Mareva injunction, it should be the subject of express statutory provision ‑ ‑ ‑
McHUGH J: Why?
MR McQUILLEN: Because you cannot intend anything in respect of an inferior court statutory jurisdiction.
McHUGH J: But section 46 gives the District Court the powers and authority of the Supreme Court as if the action were proceedings in the Supreme Court, and then 46(2) goes on to say that in addition in relation to that power to grant an injunction, the District Court judge has “all the powers and authority of the Supreme Court and the Judges thereof in the like circumstances”.
MR McQUILLEN: But then I say rhetorically, does that give to the District Court the ability to do whatever it sees fit in relation to the administration of justice, because that is really what is being intended ‑ ‑ ‑
GAUDRON J: You would say it has power to punish for contempt on that basis.
MR McQUILLEN: It clearly does not have power to punish for distant contempts.
KIRBY J: No, but that is a specific matter. That is dealt with by an Act, the power to deal with contempt.
MR McQUILLEN: Yes, and that is my point.
KIRBY J: But, it is not relevant to the question of the power to make the orders in the first place because they are dealt with by section 46 which could not – it is difficult to conceive how it could be expressed in more ample terms and, presumably, it was as part of a statutory purpose of providing to the District Court trial judges powers which had formerly been kept from them but in order to, as it were, shift business from the Supreme Court to the District Court.
MR McQUILLEN: Yes.
KIRBY J: So that litigants, citizens, with their proceedings then should not be at a disadvantage because the judge did not have the powers of a judge of the Supreme Court. By Act of Parliament it is declared that they shall have, the court will and the judges will.
MR McQUILLEN: In response to that could I say this: assuming, if one were to draw an analogy, that a District Court was given jurisdiction in bankruptcy then all of the ‑ ‑ ‑
KIRBY J: That raises different problems because there is a federal Act ‑ ‑ ‑
MR McQUILLEN: I appreciate that, but if it was given a specific jurisdiction in a particular area then I could have no complaint. What the difficulty is, that it is extrapolating from this section into the District Court some sort of inherent jurisdiction to do what is ever necessary in the administration of justice in the State of New South Wales.
GAUDRON J: Is the headnote part of the provision under the New South Wales Interpretation Act?
McHUGH J: The side notes are, if not by the Act itself, by judicial decision.
MR McQUILLEN: I cannot answer your Honour directly on that point. It says “ancillary equitable relief”. Is that what your Honour is referring to?
GUMMOW J: I think there is something now in the Interpretation Act of New South Wales about that. President Mason, when he was Solicitor‑General, greatly updated that piece of legislation.
MR McQUILLEN: I notice the time, your Honour.
GAUDRON J: Very well. Now, it is likely that this case will not finish today, I should say, is it not? If it does not finish I presume you will have a bail application ready to be made, is that right?
MR McQUILLEN: Yes, this afternoon, yes, when the Court rises.
GAUDRON J: Yes. You may give some attention to, if it does not finish, to the terms of the recognisance that was entered earlier. They may not be entirely appropriate, but I will leave that with you. We will adjourn now until 2 o’clock.
AT 12.49 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GAUDRON J: Yes, Mr McQuillen.
MR McQUILLEN: I think I was dealing with the point that nothing intended to be within the jurisdiction of an inferior court should be intended unless expressly alleged and even so, with the broad power of section 46 ‑ ‑ ‑
KIRBY J: That is where it is expressly alleged or confirmed. At least that is the argument. How would they have expressed it if they had wanted to give a power to provide orders of this kind that would have been acceptable, in your submission?
MR McQUILLEN: I suppose in the way that the English Supreme CourtAct section 31 may have been expressed or in some terms, that “just and convenient, appropriate” or some other broad term, but ‑ ‑ ‑
KIRBY J: But if that is given to the Supreme Court then by dint of section 46 it is given to the District Court, and this is all part of a design, as I understand it, to give the District Court very large trial powers and to confine the Supreme Court to powers that are apt for a Supreme Court.
GAUDRON J: But it is a remedy in an action or it is an injunction in an action, not in relation to, which, of itself and in context, and if you treat the head note as extrinsic material, which apparently you can under the State Act, suggests what one is talking about is a remedy in vindication of a right in issue in the action, as distinct from one in relation to an action which is in vindication of the court’s processes.
MR McQUILLEN: And that process would be, for instance, the process of execution, that is, after judgment and, of course, action is defined as restricting the ‑ ‑ ‑
GUMMOW J: It means action of the court.
MR McQUILLEN: Limited to, or excluding, of course, the criminal jurisdiction and limited to matters in Part 3.
KIRBY J: I think Justice Gaudron may have thrown you a lifeline here, Mr McQuillen. The suggestion is that the words “in any action” which appear in 46(1) mean that the action still has to be alive.
MR McQUILLEN: Yes.
KIRBY J: It has not merged in the judgment. There has to still be an action and that might give some ‑ ‑ ‑
MR McQUILLEN: Yes, that is what I understood her Honour to be saying.
GAUDRON J: I was extending it a bit beyond that to mean – to use it in contradistinction to “in relation to an action” to refer to a remedy with respect to a right in issue in the proceedings.
MR McQUILLEN: Yes.
GAUDRON J: As distinct from an ancillary remedy in support of the court’s own processes.
MR McQUILLEN: Yes.
GUMMOW J: Well, I think that probably does no more than reflect the ordinary idea that that what injunctions are doing.
McHUGH J: But you cannot leave out 46(2):
In relation to the power of the Court to grant an injunction…..the Court…..shall, in addition - - -
GAUDRON J: “Under this section”.
MR McQUILLEN: “Under this section” which means the action that is any action.
GAUDRON J: So that it would include powers to require undertakings, accept undertakings, to put ‑ ‑ ‑
GUMMOW J: - - - people on terms.
GAUDRON J: Yes. The sort of things that a Supreme Court judge can do in relation to the grant of an injunction.
KIRBY J: Now, this is the conferral of power and jurisdiction on a court. Ordinarily, as I understand the principle, you would construe that broadly, amply, because you have to cover an infinite number of cases that may come before the court. I think Justice Gaudron said that in a case, the name of which escapes me.
MR McQUILLEN: Yes. This is a matter which, I think, this question of the power of an inferior court, or a court such as the District Court has been ‑ ‑ ‑
KIRBY J: A court of record, is it not?
MR McQUILLEN: Yes, it is court of record, where it is an inferior court of record, but it is limited in its powers and the ‑ ‑ ‑
KIRBY J: I do not see the word “inferior” there. It is not created because of a superior court of record, but it is a court of record, section 8(2).
MR McQUILLEN: It is, in my submission, a court of inferior status, as distinct from a court such as the Supreme Court.
KIRBY J: There is no doubt about that, but still, in this particular, by the Act of Parliament, the court has, and the judges of the court have, in addition to the powers they otherwise would have, all the powers and authority of the Supreme Court and the judges thereof in like circumstances, and that is in relation to the power of the court to grant an injunction.
MR McQUILLEN: My argument goes, if I can say, put it this way, that the effect on the District Court, whereby it is precluded from punishing distant contents, is an instance or an example of its inferior status in so far as that it is supervised by the Supreme Court, and in that respect, it ‑ ‑ ‑
KIRBY J: But it is supervised with the powers that is given by an Act of Parliament.
MR McQUILLEN: But it cannot punish for a contempt outside the Court..
KIRBY J: You keep saying that but I do not really see the relevance of that.
MR McQUILLEN: Only that it really demonstrates its limited powers.
KIRBY J: So far as it being in relation to the power to grant an injunction, the application was made in a notice of motion which was filed when the action was certainly proceeding.
MR McQUILLEN: Yes.
KIRBY J: In support of it was the affidavit which contained at page 49 assertions that your client - Mr Rahme was afraid that your client was going to leave the jurisdiction. Paragraph 8, I am referring to:
I am concerned that he may return to his country of origin.
I am not aware of any other assets –
and so on. In relation to the action, where a judge has gone to all the trouble of determining a disputed case and has provided a judgment, is it not within his powers - he inheriting the powers of the Supreme Court and the judges of the Supreme Court – to provide, by injunction, for the protection of the assets of the appellant so that they may be available so that what he has been engaged in for those hours, that he heard the case in Parramatta, are not a complete futility. He must have sniffed that something might go wrong, as indeed it did, very quickly.
MR McQUILLEN: But, your Honour, it is like the causa sine qua non. It is putting things the wrong way round. What my submission is, is the reverse; that although the unfortunate event occurred, the position was that the nature of the order, the circumstances in which it was made ‑ ‑ ‑
GUMMOW J: There was a perfectly adequate alternative remedy under section 110; bind the land.
MR McQUILLEN: Yes.
GUMMOW J: It does not matter whether Mr Pelechowski might want to go, get the land under 110, it is his main asset, so no one else could get it.
MR McQUILLEN: And, your Honour, it is my submission that to say that a person is of non-Australian origin, without further, is no evidence whatsoever, in my respectful submission, to give the Court any concern. I think Mr Pelechowski went on to say later on that he had been in Australia since the age of three or four or something and ‑ ‑ ‑
KIRBY J: All I am saying is that the judge had before him an affidavit. We are not, as I understand it, even looking at whether the judge exercised his discretion correctly or not, we are looking at whether he had the power.
MR McQUILLEN: Yes.
KIRBY J: But it says:
I am concerned that he may return to his country of origin. I am not aware of any other assets –
and in the course of evidence there were suggestions that the litigants before the judge had been involved in or had some connection with drug dealing and the Crime Commission and the judge may have jumped to a conclusion that it might be wise to ensure, perhaps for a little time, until further order that an order be made that prevented your client doing what very quickly he went on to do and I think ‑ ‑ ‑
GUMMOW J: And which could have been stopped under 110. It could have gone on the Certificate of Title under 110 the land could not have been sold.
KIRBY J: Section 110 does not exclude the provisions of section 46. It is still there in the Act.
McHUGH J: Do you assert, Mr McQuillen, that the action had ended before the judge made this order?
MR McQUILLEN: I assert that by virtue of the verdict – the pronouncement of the verdict – that that was the end of the matter. In other words, that there was liberty to enter judgment and the processes were then available to the judgment creditor.
McHUGH J: Well, at page 91 the judge says:
I order the defendants to pay the plaintiff’s costs –
et cetera, and he then says:
I then turn to a motion brought by the plaintiff –
and then he goes on to make the orders. Now, if your argument is right, at that stage the judge has no protection at all, has he? He is not acting as a judge. Any statement he makes from that point on would leave him liable to an action for defamation. He would only have the ordinary defences, he would not have the immunity of a judge and this is before the parties have left the court or before anybody has entered up the orders of the court.
MR McQUILLEN: Your Honour, I hoped that it would not have to go that far. I would not suggest that that is the consequence of what happened at all but what I am saying is, dealing with this case, dealing with what happened ‑ ‑ ‑
McHUGH J: But must not your argument be that the judge was functus officio in this action.
MR McQUILLEN: As I understood it, that was what the old rule was, that a District Court judge was functus officio but I do not think the 1973 Act had that effect. I think the earlier Act had that effect particularly in judges who sat in circuits because a court was created in a circuit,, on a circuit court, and it was limited to hearing the action that was the end of the matter and I would have thought in the District Court that that type of event occurred but I do not have any authority to say he is functus officio.
McHUGH J: If you took advantage of the power under section 110 you would not have been commencing a new action in the court, would you, or a writ of execution under 107? It would all be in the same action, would it not?
MR McQUILLEN: Your Honour, it is a remedy that is available.
McHUGH J: Yes, but in the action or is it an independent action? Does he have to start a new action to enforce - - -
MR McQUILLEN: No.
CALLINAN J: But it is a new proceeding, is it not? You would have to take some fresh step. You could not rely upon your originating process that led to the judgment.
MR McQUILLEN: Precisely. No.
McHUGH J: That can be accepted but the point is when 107, for example, talks about a judgment of debt rising from an action entitles the:
issue a writ of execution to enforce the judgment in the action –
is that a new process altogether?
MR McQUILLEN: This is 107?
McHUGH J: Or is it still part of the original action? How would it be entitled?
MR McQUILLEN: He relies on the judgment. The judgment gives him a right to seek that remedy. He has to have a judgment.
CALLINAN J: He has to have a fresh application under subsection (2), does he not?
MR McQUILLEN: Or granted on application made by the judgment creditor, yes. That is an application that would be made separate and distinct from the action.
CALLINAN J: And could only be made on the successful conclusion of the action.
MR McQUILLEN: Absolutely, because that is the way the whole scheme works. I mean, no one could go and use that section before a judgment. One would hope that would be available.
KIRBY J: That means until they trot back to the solicitor’s office and they then get new instructions and they then get an affidavit sworn and they take out a motion for the relief under sections 107 and 110, all of which might take several days, you say the District Court has no power to protect the property. That seems most unlikely and in particular where they are given the power of a judge of the Supreme Court.
McHUGH J: You are dealing with land here.
MR McQUILLEN: Yes.
McHUGH J: But if my recollection is right in Hospital Products between the time this Court gave judgment at 10 o’clock allowing the appeal and 12 o’clock the next day all the assets were moved out of the country.
MR McQUILLEN: I appreciate that.
McHUGH J: At 12 o’clock the next day there was a - Justice Gummow’s recollection would probably be better than mine in relation to this matter, but that is my recollection.
MR McQUILLEN: But, your Honour, we are dealing with a remedy here, that in that particular instance, what does one do? If I could come to the nub of what my old argument is about, does one just do away with the insolvency laws and put in this remedy. I mean, that is what ‑ ‑ ‑
KIRBY J: You supplement it with a power of the judges to make orders, proper to the case, to protect the assets of the judgment debtor against the risk that they may be encumbered or disposed of, so as to make the whole process of litigation futile. That is what citizens complain about, about the law, that it is too costly, too slow and that when you win, it is a hollow victory; that is why the judges have to have the power to make sure that that does not happen.
MR McQUILLEN: One appreciates that there has been developments in technology such that what Justice McHugh referred to yesterday, of moneys being able to be transferred in an instant. However, what has happened in this case demonstrates what, in my submission, was the injustice that occurred to Mr Pelechowski, in that here was an order that was made where a man was conducting his defence, it was made in circumstances which, on any view, the District Court judge had made an order against a defendant who was not even present and who was a joint tenant in the property and ‑ ‑ ‑
KIRBY J: Now the position of the defendant who was not present is not before us; you are not acting for her, she was not prosecuted to conviction of contempt, we are not concerned with whatever order was made against her; we are concerned with the order made against your client. And I do not recollect that there is a ground, indeed, I thought you had told me that there is no ground of appeal that suggests that you are complaining about procedural unfairness here. We are not concerned with the – we are concerned with power, and when you are concerned with power you have to test it by the extreme case, to say, even in the case that they rush out and start doing a Hospital Products and move the property quickly, a judge has no power to make sure that the assets are preserved in the mean time; I find that very difficult to accept.
MR McQUILLEN: Could I say this to your Honour, that that is certainly a matter of concern. It is one view, it is part of reality. But what the Court is being asked to do is to accommodate parties on the basis of some, as the respondent would impress upon you, on the basis of logic and commercial reality. Now that is not what the Court - because parties want to know, if there are limits to this remedy, what is this remedy, what does it constitute? It has been described as a Mareva injunction. Justice Gummow has asked the question, what is a Mareva injunction? The fact of the matter is that we know it is an interlocutory relief. In the Supreme Court it is able to be given as an interlocutory measure.
Different considerations apply when it is used post‑judgment. When it comes to power, my contention is in this case that his Honour the District Court judge could not, even if he had power, if I were to concede that point, there was no basis upon which he could have made that order. If one were to take the contempt matter out of this scenario, I would hazard a guess that Mr Pelechowski would have been successful in his appeal on the basis of the order made by the learned District Court judge, because there was absolutely no basis, his Honour says, as a foundation for the grant, and it is desirable in these instances when Mareva injunctions are issued to provide reasons. The reason, as his Honour gave at page 92, was the view that he took of the defendant’s evidence. There was simply no evidence other than he was of non‑Australian origin. There was no evidence that there was a danger of the risk of dissipation of assets or anything like it. It is not enough merely to - in my submission, the criteria is there must be evidence of at least more than usual danger of assets being removed.
GUMMOW J: Is there any instances in the Supreme Court of post‑judgment Mareva injunctions?
CALLINAN J: Against a judgment debtor, too, as opposed to a third party.
MR McQUILLEN: I believe there is a New South Wales reported decision which I have not been able to put my hands on because of mechanical problems, but I understand that there has been a decision.
GUMMOW J: It would be one thing if there was such a settled practice in the Supreme Court.
KIRBY J: Paragraph 21 in the submissions of the respondent lists, one, two, three, four cases, and then it lists a number of cases in the Federal Court, in other States, English authorities. I mean, I have not looked at any of these.
MR McQUILLEN: My response to that has been that they are in the main, although not exclusively, injunctions granted before judgment, which had been continued. I say not exclusive because I think that Camdex International Ltd v Bank of Zambia was one where there was a Mareva granted after judgment, but whether that is a Mareva injunction ‑ ‑ ‑
GUMMOW J: It may not be an injunction.
MR McQUILLEN: That may be so.
GUMMOW J: It may be some new form - - -
MR McQUILLEN: Of relief.
GUMMOW J: - - - of protective process in aid of a judgment.
MR McQUILLEN: Indeed.This is the point that I am trying to make ‑ ‑ ‑
GUMMOW J: But if that were so, one would expect to find it in this Act in Division 4 of Part 2.
GAUDRON J: Had the remedy that has developed come to be known in the terms in which I described it in Jackson, namely as an asset preservation order, rather than a Mareva injunction, there might be no argument at all as to whether or not it fell within the terms of the District Court Act.
MR McQUILLEN: Yes, that is my point.
GAUDRON J: It is an injunction, not in any sense of the equitable remedy, as we know it, but an injunction only because that what it was called in the United Kingdom.
MR McQUILLEN: Yes.
GUMMOW J: There are all sorts of orders that people do things that are not injunctions.
MR McQUILLEN: Precisely, and the whole matter is that whatever this order was, or whatever it may be referred to as, the question is it was something done which was not available to the District Court to do in that it was something being done in substitution for an execution. It was purporting to secure to the judgment creditor a security in which situation that creditor would be not entitled to be.
GUMMOW J: It does not have an undertaking as to damages attached, which one can understand, in a way, if it is a ‑ ‑ ‑
MR McQUILLEN: - - - a judgment.
GUMMOW J: ‑ ‑ ‑ new sort of remedy in aid and execution, because you have the judgment debt.
MR McQUILLEN: Yes. My point on this is that, so far as generally, it would be in order for a Supreme Court to issue what is called a Mareva injunction, pre-judgment, but once judgment is obtained, then different considerations come into play. It cannot be, as what has been described as what the purpose of the Mareva injunction is “in furtherance of the administration of justice”, or like words. It has to be some other, new remedy which has not been defined or laid down or some definitive statement made as to its authority, with respect, because once a judgment is obtained - the status quo having been preserved, and once a judgment has been obtained, then it is up to the judgment creditor. He is then left with his remedies to execute, and I appreciate the difficulties of the space of time between judgment and the likely time of execution. However ‑ ‑ ‑
KIRBY J: You can appreciate it but you say there is just nothing that a judge of the District Court can do about it by way of ….., no power?
MR McQUILLEN: I say that – as a District Court judge, yes.
KIRBY J: Even though Parliament has given a large measure of power by section 46?
MR McQUILLEN: Well, it could amount, in effect, as has happened in this case, to almost a final relief. I mean, if a judgment creditor chose - we have the reverse abuse of process situation. If a judgment creditor chose, he could just continue on, not executing, and hold the Mareva injunction or whatever it is – the order that he has – and that is what happened in this case.
GUMMOW J: Was there liberty to apply reserved? Any reservation in the order?
KIRBY J: I think it was ‑ ‑ ‑
MR McQUILLEN: I do not believe that was specifically stated, your Honour.
KIRBY J: But it is implied by the statement that it is to endure until further order.
MR McQUILLEN: Yes. The other matter that I wished to raise is the question of, again, this case. The appellant was, because of the framework of the District Court Act and the rules, in the position where if he were to breach, as he did breach, the order, then he was liable to be dealt with for contempt. That procedure provided that the matter be determined by another judge of the District Court, which was Judge Twigg, and the matter then go under section 203 to the New South Wales Supreme Court Court of Appeal. That effectively denied, or denies, in any case, a person where they are dealt with at first instance by the New South Wales Court of Appeal, that they have no right of review and I made a submission that it was an irregularity so far as that right was not there and so that if a person such as the appellant were to breach an order of the District Court, they were then subjected to imprisonment, or an order for imprisonment, for disobeying the order and particularly in circumstances where there was no right of review.
In addition, it is a matter of concern that a person can be imprisoned for disobeying an order in these circumstances where, in particular, I submit that there was no foundation for the District Court to make this order so far as there was no evidence ‑ ‑ ‑
McHUGH J: Well, assuming there was foundation for it, there seems to be a plain and flagrant breach by your client.
MR McQUILLEN: Yes, your Honour. There is no question about that, your Honour.
KIRBY J: This is really relevant to the second issue you raise which is the challenge to the penalty that was imposed, but have you said with your written submissions everything that can be said in challenge to the power issue or is there something else?
MR McQUILLEN: Yes, I have, your Honour. In an order of this nature, if it be accepted as an order of the Mareva type, one of the other matters that I submit is of concern is that his Honour the District Court judge made no provision in the injunction which is otherwise made in the usual situation for legal and living expenses.
This was this man’s home. It was his only asset. He was unemployed. He had been a former employee of the Department of Housing. He had suffered a work injury. He had, obviously, some - I think he was a pensioner in receipt of a pension, and no provision was made in the order for an allowance for him to meet whatever legal expenses ‑ ‑ ‑
KIRBY J: The order did not touch his pension.
MR McQUILLEN: No, no, your Honour.
KIRBY J: The order merely prevented him encumbering the one true asset that was available to discharge the order, pay back the debt which against his opposition had been found in favour of Mr Rahme, and there was a power to apply to vary the order by reason of the power of the contemplation of further orders.
MR McQUILLEN: Yes.
KIRBY J: So that if this impinged upon his ability to live, then there was a power to go back to the District Court and make application. Your client had appeared for himself on the proceedings. He presumably knew that he could go back and make the application for a further order, as the judge had said. I do not think this is like the last case, that the judge did not provide for the holidays of your client.
MR McQUILLEN: No, no, your Honour. One would expect in an order of this nature which has a fairly drastic effect to make some provision in the order, as I would submit his Honour should have done, with respect, that where it was in this man’s situation his only asset, he had a mortgage, he had to live just like any other judgment debtor, and true it is that some application could have been made, but your Honour, if he were to engage legal representation he may well have been in the position where he could not do that to make that application.
True it is that he represented himself at the hearing but this was an order – firstly, he was dealing with a defence which he felt adequately to cope with, that defence, and he indicated that in respect of this motion, this order, he wanted it seen by a legal person. Now, that is something that effectively again, in my submission, he was shut out from being able to do.
KIRBY J: Is there any record of the custodial sentences? Was it demonstrated - did your client have any convictions? He was a first offender.
MR McQUILLEN: No, it was completely first - under no notice.
KIRBY J: It seems a bit drastic to imprison him on a first offence as distinct from, as it were, making orders that provided for the undoing of the transaction.
MR McQUILLEN: Yes, it was a manifestly excessive sentence and I made that submission.
McHUGH J: But why do you say it “was a manifestly excessive sentence”. The mortgage could not be undone. Advance Bank had lent money, and the money had been expended, what are you going to do? How could the court set aside Advance Bank’s mortgage over it? And your client had no other means, he could not pay a substantial fine, so he gave him six months for a flagrant breach. The court saw him in the witness box; they did not accept him about anything; they were not comfortably satisfied that his apology was genuine, at least they had some lurking doubts about it.
MR McQUILLEN: Yes. I cannot side step that, your Honour, but can I say this, that this was a drastic order that was made in circumstances where it should never have been made. I appreciate ‑ ‑ ‑
McHUGH J: Well, even if you had an appealable ground, the fact is there was an order of a court made which was flagrantly breached within 10 days of its being made. I mean, you could not think of a clearer act of defiance of a court than that.
MR McQUILLEN: Your Honour, he indicated his reaction to the order because he said that it had come upon him suddenly and he did not understand. That was the basis of how he ran the appeal.
McHUGH J: I know he said that. No judge who has seen him in the witness box has believed a word he has said.
MR McQUILLEN: Well, that is in the Court of Appeal, your Honour.
McHUGH J: Well, that is right, because he would not go into the witness box, but Judge Christie saw him cross-examined, the defendants, he did not go into evidence to deny the agreement, notwithstanding the sworn defence that was put on. Trial judges are not fools; they are entitled to form opinions about people. In this situation, you borrow large sums of money from somebody; then do not pay it; put on a sworn defence that there was no agreement; do not go into the witness box; cross-examine the principal witness for the plaintiff making irrelevant suggestions and then 10 days later goes off and defies the court’s order. Well, in those circumstances, why was not the Court of Appeal, having seen him in the witness box and being less than impressed by his behaviour in the witness box and his answers, not entitled within the limits of its discretion to say six months is an appropriate sentence in this case?
MR McQUILLEN: Your Honour, it is certainly in the discretion of the court, but my submission is that having regard to all matters, the discretion was that this was a man who had suddenly come upon litigation where an order was made ‑ ‑ ‑
McHUGH J: This is a man who had done a Real Estate Institute course. He knew about encumbrances and so on. The Court of Appeal, on the evidence, was well entitled to take the view that this was a man who knew what he was doing, and was not some innocent, but somebody who had set out to obtain somebody else’s money, then would not pay it back, and then, when the court made an order in respect of the asset which could satisfy it, went off and borrowed money; and who, to this day, has never made any attempt to sell the asset to pay the money that is owing. In fact, according to the Court of Appeal, says this plaintiff, Mr Rahme, would be about the last person who would be paid. There is not too much contrition about it.
MR McQUILLEN: He did proffer an apology which was not accepted. However, having regard to the appellant’s circumstances, having regard to all the matters that can be put forward on his behalf, that he had not offended previously, that he was a person who was in difficult circumstances - he had lost his job - people can do desperate things at desperate times for reasons that, perhaps, they do not even appreciate themselves. Medical evidence was put forward on Mr Pelechowski’s behalf to demonstrate his condition; to demonstrate what position he was in and going back to 1989 ‑ ‑ ‑
McHUGH J: This was not an impulsive act, Mr McQuillan, this was the raising of a mortgage. It would have taken some time. It was not done overnight. It was not done at the moment.
KIRBY J: He twice used the word, himself, “encumber”, so it is not as if he did not know what the judge was getting at, what he was forbidden from doing, and he did it. But, what concerns me is - I mean, imprisonment is a standard punishment for contempt, that it is a drastic punishment for a first offender. Would it have been open to the Court of Appeal to have made an order that unless within a certain time the position with respect to the mortgage was reversed, that he would be committed to imprisonment? Because sometimes when people are in that position they can raise the money from the families. Was that open to the Court of Appeal, a conditional order of that kind?
MR McQUILLEN: Well, I submit it would have been, your Honour.
KIRBY J: Does the Supreme Court Act or the Rules give the Court of Appeal limited powers for dealing with contempt? Has the Court of Appeal held that it has power to make conditional orders.
MR McQUILLEN: It does say that it can do other than fine or imprison. I think there is a provision. I have not looked at it since ‑ ‑ ‑
KIRBY J: I think in the case of a doctor we once ordered in the Court of Appeal that the doctor do some community service.
MR McQUILLEN: Yes. That is Dr Maniam, I think.
KIRBY J: Maniam?
MR McQUILLEN: Yes. That was the subpoena.
KIRBY J: Yes, and he just did not turn up twice on a subpoena and we ordered that he do some community service in a hospital for several Saturdays.
MR McQUILLEN: Yes, and he was a doctor who had committed previous breaches, as I understood, under subpoena.
KIRBY J: Yes, but it is not quite the same as this case.
MR McQUILLEN: In any event, your Honours, I cannot step away from what your Honour Justice McHugh has said. Quite clearly, this was a breach. There were circumstances in which this order was made that reflect upon the fact that the man – it did happen in nine days, your Honour, but I cannot sidestep the fact that he breached an order of the court and I cannot step away from that finding, however ‑ ‑ ‑
McHUGH J: Contempt of court is an interference of the course of justice.
MR McQUILLEN: Yes.
McHUGH J: It is the same as an attempt to pervert the course of justice. That is what it amounts to.
MR McQUILLEN: Yes. There is provision under Part 55 rule 13 that:
Punishment…..(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such same as the Court may approve for good behaviour and performs the terms of the security.
McHUGH J: There is necessarily involved in these cases a large deterrent effect. If the orders of the courts cannot be obeyed then the courts of justice might as well close their doors and the members of society might as well arm themselves to protect themselves if they cannot rely on court orders to do so. It is the whole basis of a civilised society, that people have legal rights which can be enforced in courts and the courts will make orders which will be obeyed and if that is undermined, then chaos and anarchy are the consequences.
MR McQUILLEN: Your Honour, a distinction is drawn between the breach of an order and a contempt committed, say, for instance, by a media person which can have quite far reaching consequences. Now, I am not trying to make any excuses but an analogy is drawn as to sentence there so that where there may be a finding of contempt in relation to a media type breach, the penal consequences or the imprisonment consequences do not always necessarily follow. I say that not in amelioration of what should happen in a breach of an order of a court at all, but imprisonment is something that – particularly where a person is a first offender – should be considered carefully.
McHUGH J: Any sentence is a terrible imposition on any human being but in this particular area, there are very large issues at stake, public issues, and it is not to the point that I may have taken a different view or a judge of this Court may have taken a different view, it is a question whether or not the Court of Appeal, in the range of options that was open to it, was entitled to impose this sentence. You have got to convince us that either the sentence is manifestly wrong or that there was some error of principle. I do not see any error of principle, so, I think it comes to the question as to whether the sentence was manifestly excessive.
MR McQUILLEN: Your Honour, as I understood the reasonings of the judgments in the Court of Appeal there was little or no reference made to the appellant’s medical state. He was, on the medical evidence, suffering some deal of pain. He had suffered a back injury. He had stress problems.
KIRBY J: Where do we find this material, if is not referred to in the Court of Appeal judgment?
McHUGH J: It is Professor Steinbeck.
MR McQUILLEN: Steinbeck, yes, at page 362 his report through to 367 and, your Honour, a matter that was debated briefly before Justice Kirby last week when the application was in chambers was the concerns for this man having regard to lack of communication. Should I say that ‑ ‑ ‑
KIRBY J: You can only deal with the matter on the basis of the evidence before the Court of Appeal.
MR McQUILLEN: Absolutely, your Honour, and the matter that was before the Court of Appeal was not only his medical condition but also that he had lost his employment with the Department of Housing and had litigation against that Department by way of unfair dismissal. He had a proceedings under the Unfair Disclosures Act where he had suffered a costs order of some $350,000 and he had a workers compensation claim which is still on foot. All of these matters were exercising or playing on his mind, no doubt, during this period.
KIRBY J: All of this is revealed in the evidence, is it, or is this just something you are telling us?
MR McQUILLEN: Yes, it is, I believe, revealed in the evidence because I led it in respect to penalty before the Court of Appeal. One of the concerns that was expressed ‑ ‑ ‑
KIRBY J: Was he represented in the penalty proceedings?
MR McQUILLEN: In the Court of Appeal?
KIRBY J: Yes.
MR McQUILLEN: Yes, your Honour, by me.
KIRBY J: By you.
MR McQUILLEN: Dr Jean Lennane at 369 to 370 dealt with the question of another expert’s opinion as to whether or not he was suffering from paranoid schizophrenia. She suggested that that was not the case in her view, however, he was a person who had, what was referred to as some whistle blowing type of experience or was categorised as a whistle blower and he was a person who had obviously reacted unfortunately to an unfortunate set of circumstances that came about from his demise from the Department of Housing and his demise occurred on 6 July 1995 and during that employment he had in 1989 suffered his work injury. His reaction to the order when made is at page 261, so far as may be of some assistance to the Court.
GUMMOW J: Two sixty-one?
MR McQUILLEN: Yes, point seven, down to point 40.
KIRBY J: Can I ask you this: do you accept Justice McHugh’s suggestion that this being an appeal to this Court from the court, such as the Court of Appeal, that you are, as it were, in the position of a sentencing appeal to a court of criminal appeal, you have to show manifest excessiveness of the judgment, or of sentence, or an error of principle? Is it relevant that this is a case where, by law, the trial took place in the Court of Appeal and that, in effect, this is the first level of review of the sentence? Is that in any way relevant to what our function is in relation to the review of the sentence, or not?
MR McQUILLEN: Yes, it is, in my respectful submission, because ‑ ‑ ‑
McHUGH J: In what way would it be different from the function of a court of criminal appeal, in relation to a sentence of the District Court judge?
KIRBY J: Or a single judge of the Supreme Court.
MR McQUILLEN: A single judge. The normal sentencing principles apply, as under the Sentencing Act to contempt, as in this ‑ ‑ ‑
KIRBY J: But the question is our power. Are we, as it were, entitled, like in a Quarter Sessions appeal, appeal to the District Cour, to just substitute what we think is right, or do we only get authority to take a view on the sentence if we consider that an error has occurred?
MR McQUILLEN: The latter.
KIRBY J: That is what Justice McHugh was saying. You accept that it is an error case, it has to be shown that it is an error.
MR McQUILLEN: Yes, I do.
KIRBY J: I take it what you are saying is, when you look at all of the evidence and what are commonly called the subjective features concerning your client, and the fact that he was a first offender, and the fact that he had various problems of communication or understanding that you say will be revealed by the medical evidence when we read it, that in those circumstances, the sentence of six months was manifestly erroneous, as not needed to vindicate the administration justice and that the correct - or what do you say was the proper sentence in the circumstances?
MR McQUILLEN: I put forward that contemplated by Part 55 rule 13(3) which orders the suspension, or a bond, or some order in relation to making either reparation or some ‑ ‑ ‑
KIRBY J: So it is a conditional order.
MR McQUILLEN: A conditional order rather than ‑ ‑ ‑
KIRBY J: He be ordered to pay a certain amount, and in default of payment that he be sentenced to imprisonment for six months.
MR McQUILLEN: Yes, and subject to any reasonable application that may be made from time to time. But this was a matter which he was dealt with by an appellate court, effectively at first instance. That is a consequence of my emphasis, coming back to this type of remedy which, calling it a remedy, consequences which flow from this type of order, and it is relevant in that he was dealt with by the Court of Appeal for an offence of which he had no right of appeal unless he could show - and this is the case here - that there is some important question to be determined, or to be considered by this Court, and that namely was the question of the issue of Mareva injunctions. Had it been different, he would have no right of appeal.
KIRBY J: That was just a provision of the law in New South Wales at that time. I gather that from the submissions that has been changed, has it?
MR McQUILLEN: I think it has been changed. Yes, I understand that to be the case.
McHUGH J: Can I get from you what you seek now to make of the medical evidence, because I read your argument in the Court of Appeal and you seemed to be suggesting that the breach arose out of his disturbed state of mind and stress.
MR McQUILLEN: Yes.
McHUGH J: The Court of Appeal considered that.
MR McQUILLEN: They did not accept it. There is no reference in the penalty judgment to that medical evidence.
McHUGH J: They did recite the fact that you relied on various matters, and the court itemised them, and one of them was that the breach arose out of a disordered state of mind and stress, and the court said some of these submissions may be accepted, but by no means all. They specifically rejected the submission that the breach arose out of a disordered state of mind; said it is contrary to the findings of the court in its earlier judgment.
MR McQUILLEN: Yes, your Honour. The question also was, I suppose, his orthopaedic injuries, which played a part and I think his circumstances, namely the difficulties or the position he found himself in as a result of events that had effectively overtaken his life. I submit that insufficient weight was given to those matters. I know there is a reference to the disordered state of mind, but my submission is, having regard to this man, no point, so far as he is concerned, would be served in imprisoning him, however, I understand the point that your Honour makes to vindicate the court’s order. Some statement ‑ ‑ ‑
McHUGH J: Well, that is what the Court of Appeal relied strongly on at page 406. It said that:
We are unsure whether the contemnor fully appreciates or understands, even at this stage, the seriousness of his conduct. Indeed, it is possible that some of his evidence has been deliberately false with the intent to mislead the court. His belated apology is to be contrasted with his earlier defiance.
And their Honours go on to say:
But here the court is faced with a particularly blatant and determined threat to the integrity of the civil justice system.
The public is entitled to expect that a court injunction will be obeyed.
MR McQUILLEN: But it says:
Indeed, it is possible that some of his evidence has been deliberately false –
That is something that there was nothing which the court could really attach to say there was evidence demonstrated ‑ ‑ ‑
McHUGH J: What about his evidence that he had no interest in the property; that he now had an acknowledgment from his girlfriend that he had no interest in it. The Court of Appeal said they did not accept his evidence concerning the value and interest. They said at page 404:
We do not accept that he is telling the whole truth about the value of the property or his interest in it.
The court was entitled to take the view that this was a man that was playing with them right to the end.
MR McQUILLEN: Well, your Honour, I do not know that that is a fair – could I say this, when your Honour refers to him “playing” with the Court of Appeal, I do not think that was really demonstrated on the face of it. He may have been a person who the court did not accept and there are matters that is in evidence. However, he went to the court on the basis, not only that he was being dealt with for contempt, but also on the basis that this was an order which needed to be looked at. So far as the type of remedy that was imposed upon him was something that the District Court was not entitled to do. So, your Honour, it is a matter that he did not succeed on that point. However, what has happened is, in my submission, that this order was made in circumstances which were unfair and unjust to him. That, of course, does not remove the requirement to obey an order unless, of course, it is a nullity.
McHUGH J: If it is a nullity, you are home and hosed but, if not, then you have got a situation where there has been a deliberate and flagrant breach of an injunction, where your client makes no offer for reparation. Indeed, the Court of Appeal said it was plain that he had no proposal to satisfy the judgment in debt nor, indeed, to make any offer of payment to Mr Rahme, however small, and there had been no affidavit disclosing his financial circumstances and they found his oral evidence as to his financial circumstances most unsatisfactory.
His evidence was internally inconsistent, often within a very short time. He was evasive and prone to prevaricate rather than give direct answers to questions. This is all said about a contemnor, a person who has been found guilty of contempt. Now, at this stage, if he wanted to avoid a gaol sentence, one would have thought he would have adopted a completely different attitude but the Court of Appeal obviously took the view that his defiance was still there, or, at least, his resentment.
MR McQUILLEN: Well, that is obviously a credibility finding and I have great difficulty in dealing with credibility findings.
McHUGH J: Yes, I know.
MR McQUILLEN: But again, it is an assessment by a court dealing with it at first instance and different considerations might have applied had the matter been dealt with by a single judge and reviewed on appeal.
KIRBY J: I question that, because in the Court of Criminal Appeal you still have to show that there has been an error of principle. You do not just get up there as in a Quarter Sessions appeal, District Court appeal and have a substitution of the view of the appellate court.
MR McQUILLEN: Yes.
KIRBY J: You have still got to show that there was an error because in these matters, especially, say, matters of contempt, happily they are not all that common and therefore there is not a great body of law or principle on them but a very common punishment for deliberate contempt of court orders is the imprisonment of the contemnor. It is quite common and it is mainly to vindicate and to deter.
MR McQUILLEN: Yes.
KIRBY J: Anyway, you have to say, well, when you take into account all of the details about his back and all the other things, that there is a manifestly excessive punishment for a first offender; to put him in gaol for six months was not necessary; and that it would have been a more effective punishment to have required him, at least on the condition that he get the money in or reverse the mortgage and that that was open to the Court of Appeal to do and they did not do it and that was an error and we should substitute that order.
MR McQUILLEN: Yes, and this is just like, in that sense, a Court of Appeal.
GAUDRON J: On that point, though, I, for myself, would be reluctant to accede to the proposition inherent in that without some knowledge that it was a possible order, it was an order that might be capable of obedience. It seems to me we ought not to be making orders of that kind without some further information so that if it came to that it might be necessary to hear you on an appropriate sentence, with full instructions, as to what could be given it ‑ ‑ ‑
KIRBY J: And, perhaps evidence, unfortunately.
MR McQUILLEN: Yes, well, I do not know that I can offer that. My instructing solicitor, unfortunately, has been taken away ‑ ‑ ‑
KIRBY J: That is assuming you can put evidence before this Court in an appeal, which is a large question.
MR McQUILLEN: Yes.
KIRBY J: But we have still got to get over the threshold of whether Whan’s Case indicates that in law, as distinct from reality, your client having been granted bail, he nonetheless continued to serve his sentence and has now completed the service of the sentence so that there is no power to resentence him.
MR McQUILLEN: Well, that is as I understand what Justice Brennan dealt with in Whan’s Case, that ‑ ‑ ‑
KIRBY J: Perhaps we had better read what his Honour said in that case because it is some time since I have done so.
CALLINAN J: Before you get to that, Mr McQuillen, did one doctor – I thought I read something to this effect – diagnose your client as being schizophrenic?
MR McQUILLEN: Yes.
McHUGH J: Did she? I thought she said ‑ ‑ ‑
MR McQUILLEN: She did not say it, that is, Dr Jean Lennane, but Dr Roberts did and she referred to Dr Roberts. I think that is how it came in.
CALLINAN J: And is Dr Roberts – Dr Robertson, is it?
MR McQUILLEN: Roberts.
CALLINAN J: Roberts. But Dr Roberts’ report or evidence was not before the court, is that right?
MR McQUILLEN: No, that is right. What Dr Roberts’ report was was a report that emanated from the, as I understand it, the workers compensation action proceedings and it was the respondent’s report and it came into the hands of Dr Lennane and she commented upon that diagnosis.
CALLINAN J: But there is some suggestion by her, also, that he had some psychotic tendencies, I think, is that right?
MR McQUILLEN: Yes.
CALLINAN J: That he was not normally a mentally healthy person, is that right?
MR McQUILLEN: Well, that is what I attempted to put forward in the Court of Appeal based on ‑ ‑ ‑
CALLINAN J: Did the Court of Appeal make a finding about that?
MR McQUILLEN: No.
CALLINAN J: No finding on his mental health at all?
MR McQUILLEN: Not that I ‑ ‑ ‑
McHUGH J: Well, they did make a finding, they said that he was not – did not have a disordered state of mind at the time of the ‑ ‑ ‑
MR McQUILLEN: A disordered mind, yes.
McHUGH J: And that was the way you sought to use it.
MR McQUILLEN: Well, yes, because the problem with these matters is, as I understand, if I could deal with it in this way: a person with paranoid schizophrenia – I am not trying to give expert evidence here – but a person ‑ ‑ ‑
CALLINAN J: No, their condition may fluctuate, is that not right?
MR McQUILLEN: Correct; and may give them a sense of matters which are not the reality. In other words, they see things in a different light and do not appreciate responsibilities. That is a matter which Dr Lennane dealt with or considered, having regard to what her expertise was, which was whistleblowers – that is her expertise, in that area, and that is what she was dealing with.
KIRBY J: Justice Handley came back to the Whan point, says at page 410 line 10 that one of the reasons for refusing special leave was that it was unlikely to come before this Court:
until August this year by which time the sentence will have been substantially, if not completely, served.
MR McQUILLEN: That is in this case, your Honour?
KIRBY J: Yes, that is this case, so his Honour was obviously alive to the fact, and I think it has come up in earlier cases, that by reason of Whan, that you go on serving your sentence even though you are at large. Is that what that decision says?
MR McQUILLEN: That is right, your Honour.
KIRBY J: Is that a decision of the whole court or were they dicta in a particular case or was that ‑ ‑ ‑
McHUGH J: It is an actual decision of the Court. That was the effect of a decision.
KIRBY J: What was the citation of Whan?
MR McQUILLEN: It is 153 CLR 631.
CALLINAN J: One of the problems about applying this decision is that it would be a real deterrent to judges granting bail. That, it seems to me, would be a dreadful consequence, frankly.
MR McQUILLEN: That point has been covered in this line of authority, where it says, “What does one do? Does one refuse bail because of that circumstance?”. That would be an abuse of the bail process, and that is the way the argument works.
KIRBY J: I think it has been so often called to the notice of Parliament, that if Parliament does not fix it up, they cannot expect that judges do not have bail powers to deal with cases where there is an arguable case for appeal.
MR McQUILLEN: Page 642.
McHUGH J: Maybe there is another remedy: your client has given an undertaking to the court. Why can he not be charged with contempt in this Court?
MR McQUILLEN: Yes, quite so, your Honour.
KIRBY J: That is a separate issue. The first one is whether it can be – because I think Justice Gaudron’s intervention is right, on reflection. I think that we would not resentence your client, we would simply set aside the order and if it is possible, consistent with Whan, send it back to the Court of Appeal to resentence, because otherwise we are receiving evidence, and there is a constitutional question as to whether the Court can receive evidence in an appeal.
GAUDRON J: As I quickly read Whan, it seems to be a question whether the New South Wales Court of Criminal Appeal could make an order inconsistent with the Periodic Detention of Prisoners Act and answer, clearly, no. Differing considerations arise in this Court. The Court having granted bail on terms, which included that he serve the balance of his sentence, the order having been made by this Court, presumably pursuant to authority confirmed by the High Court Act, there may be a 109 consistency question between the Periodic Detention Act and the order made. But in any event, does the Periodic Detention Act apply in this case?
MR McQUILLEN: No.
GAUDRON J: What is the ‑ ‑ ‑
MR McQUILLEN: That dealt with purely periodic detention, as I understood it.
CALLINAN J: Section 8, I think, at page 636:
expressly provides that the sentence “shall commence” on the date specified –
about point two.
MR McQUILLEN: Section 8.
GAUDRON J: Yes. Does that Act - is there a similar legislative provision ‑ ‑ ‑
MR McQUILLEN: The principles under the Sentencing Act 1989 are applicable so far as sentence in a matter of contempt, that is at common law, it is at large for the Court of Appeal to determine what sentence it imposes, but applying the principles of sentence under the Sentencing Act 1989, so that ‑ ‑ ‑
GUMMOW J: What section says that is the case?
MR McQUILLEN: Of the Sentencing Act?
GUMMOW J: Yes, that it applies to ‑ ‑ ‑
MR McQUILLEN: Well, I do not know that it says that. I think that has been decided by these cases that, in fact ‑ ‑ ‑
GUMMOW J: The contempt cases?
MR McQUILLEN: Yes, there is a contempt case, your Honour.
GAUDRON J: I think we need to know those cases, and the relevant statutory provision. If you are not able to give them to us now, you should give us a note about them.
McHUGH J: But is not your principal difficulty that the order of this Court, order 7, both by Justice Gummow, at 432, and order (g), at 450, of the Full Court, all specifically stated that the time during which your client was out on bail should not be taken into account and calculated in the period of the service of his sentence?
MR McQUILLEN: Yes.
McHUGH J: How can any rule of New South Wales law or any practice stand with an order of this Court, under its inherent jurisdiction? That order is made pursuant to the inherent jurisdiction of this Court conferred by section 73 of the Constitution.
MR McQUILLEN: Your Honour ‑ ‑ ‑
McHUGH J: In Tait’s Case Sir Owen Dixon took the view that this Court had power to stay an execution - not Sir Owen Dixon, the whole Court stayed in the execution of Tait, set for the next morning, on no other ground than that the authority of this Court should be maintained.
MR McQUILLEN: Yes.The matter that concerned me, and bearing in mind that my client is subjected to, if that be the case, further imprisonment, and I am putting this forward on the basis that it is an important matter that should not be allowed to go past without referring to what Mr Justice Brennan said in ‑ ‑ ‑
McHUGH J: There is no criticism of you, Mr McQuillen; you stand there as an advocate for your client and you have got to put every rational argument that is available to you.
MR McQUILLEN: At page 642 in Whan his Honour said, at the bottom of the page:
the inherent jurisdiction is not closely circumscribed, but it does not extend to sentencing a convicted person to a term of imprisonment in addition to, or in substitution for, a term of imprisonment which was not served because the court had bailed the prisoner during the term. If the processes of the court were abused by the seeking of bail, the suppression of the abuse lay in refusing bail or, perhaps, in revoking the bail once granted.
McHUGH J: That is about the Court of Criminal Appeal, but when we are talking about inherent jurisdiction, we have to examine what the inherent jurisdiction is in respect of, and this is an aid to the appellate jurisdiction of this Court, to make it work and make it efficient in cases such as the present where the court cannot hear the case before the sentence will expire, surely it is open in this Court, as part of its inherent jurisdiction, to grant your client bail so that, if his appeal is successful, he will not have served imprisonment that he should not have served and, on the other hand, to enable the court to grant leave and have him serve the sentence if his appeal fails.
KIRBY J: You have to say, I suppose, that if the court is intending to do that out of its inherent or implied power, it has to stay the operation of the sentence and it can, perhaps out of its inherent or implied power, do that, but it did not, therefore the sentence, which is a sentence imposed by the Full Court of a Supreme Court, continues to operate according to its terms.
MR McQUILLEN: Yes.
GAUDRON J: But, what is wrong with that argument, concisely adopted, is that the sentence was, in fact, stayed, and in terms, provision was made that the time, while he was out on bail, will not be taken into account in calculating the period of service.
MR McQUILLEN: Now, if that amounts to a stay, then I have no argument.
McHUGH J: It is whether in substance it amounts to a stay or not.
MR McQUILLEN: I am here doing the best for my client but, at the same token, I have to appreciate that the Court ‑ ‑ ‑
McHUGH J: You do not have to apologise, Mr McQuillen. You do not have to apologise in this Court.
KIRBY J: You have here twice apologised and I regard it as wrong. You are here to endeavour to ensure that your client does not go back to prison and there is no higher duty on counsel in this country.
MR McQUILLEN: Precisely, your Honour, and I am doing my utmost to ‑ yes, but I have to recognise that bearing in mind an undertaking was given to the Court which was an undertaking given in terms of a bail provision, that it may possibly be construed as a stay of the sentence pending the hearing of this appeal.
However, it seems to me that one of the features of the criminal law has always been that in respect of sentence, that drawing the analogy, if someone were to escape from custody then they are not resentenced so as to serve the term whilst they were out from lawful custody and my analogy is the same as here. That analogy is the same as here because that is the way the criminal law works. A person is given a fixed term of imprisonment and they suffer the sentence in relation to escape but in respect to a term that is fixed, it runs unless it is specifically stayed.
GAUDRON J: There was a provision of a statute which said that, but you do not provide us today with the provision of a statute which says that.
MR McQUILLEN: No.
GAUDRON J: That Act no longer operates, that has been repealed.
MR McQUILLEN: Yes.
CALLINAN J: Mr McQuillen, there are some observations, I think, in page 635 at the foot of the page and over the page, which would suggest that the principle, if a date for commencement and termination has each been specified, then it does not depend upon the statute. It says:
If the sentence does not itself direct that the term of imprisonment which the offender is ordered to serve be a period commencing on a particular day or if overriding statutory provisions do not have that effect, the term of imprisonment will ordinarily commence –
and so on.
The framing of the sentence or the effect of overriding statutory provisions –
which would suggest that the decision may not be confined to express statutory authority.
MR McQUILLEN: And that is my point here.
CALLINAN J: But can you tell me this: I do not understand why it was necessary or what the Court of Appeal had in mind at page 406, line 55 or line 53, when the Court of Appeal actually specified the commencement and the concluding dates. They would not have been necessary, would they? The court could have sentenced your client to six months imprisonment simpliciter.
MR McQUILLEN: Yes.
CALLINAN J: Is there any reason that you know of – perhaps I should ask the other side – is there any reason that you know of why specific dates were selected?
MR McQUILLEN: Why they were specified that way?
CALLINAN J: Yes.
MR McQUILLEN: As I understand the Sentencing Act makes provision for a starting date and a finishing date. I do not have that here but that is a matter which I have to take up.
CALLINAN J: Well, it seems likely that there would be some reason at that time because this is so specific.
MR McQUILLEN: It is so specific at the time.
KIRBY J: This was part of the principle of honesty in sentencing so that people knew where they stood.
MR McQUILLEN: Yes.
CALLINAN J: At any rate, Mr Menzies can refer us, perhaps, to that provision.
MR McQUILLEN: So that a stay in Whan’s case at page 638 - just before leaving this case- the reference is made to a stay of execution at the middle of the page:
A stay of execution, as its name implies, operates directly on the judgment or order the subject of the stay. Bail, in the absence of the exercise of any associated or supplementary powers that may be available, merely authorizes the accused person to be at liberty notwithstanding the operation of the sentence.
KIRBY J: Now, this has been very well known, this problem. I mean, it goes to our powers and what we have to do but I really have very little sympathy for the prosecuting authorities here because it is constantly being drawn to attention and nothing has been done. Two matters were drawn to attention in Young. One was that these matters should not go to the Court of Appeal and the other was to fix this up. They fixed up the one. They did not fix up the other, so, it is on their head, as far as I am concerned.
MR McQUILLEN: I was going to take the Court to Young and Parker, but I think your Honour has indicated the point sufficiently there, that the Court is seized of the point unless your Honours wish to have that passage.
KIRBY J: The question comes down, as Justice McHugh said, really to the issue of whether an undertaken given to the court as a requirement of bail can be construed in some way as to stop the order of the Court of Appeal of New South Wales expressed in terms as to specified dates.
MR McQUILLEN: Yes.
McHUGH J: It is a little more than an undertaking, there is a specific order – order 7 of Justice Gummow’s and order (g) of the Full Court, and both orders, in terms, purported to so operate on the order of the New South Wales Court of Appeal as to affect its operation. The question is whether that is part of the inherent jurisdiction of the court.
MR McQUILLEN: Perhaps if I could resume to the matter of this order that was the subject of a restraining order – it restrained the appellant. The point is that in this type of order there must be at least more than usual danger, and in this case it could not be, in my respectful submission, demonstrated anywhere on the evidence, or in what happened that there was that danger.
The matter has been considered further in an unreported decision of the New South Wales Court of Appeal in Frigo v Culhaci where the circumstances in which a Mareva injunction was granted involved questions of what was required in the usual course of granting such an order.
CALLINAN J: Have we got that case, Mr McQuillen?
GAUDRON J: I have a Butterworth’s unreported judgment.
KIRBY J: Justice Gaudron always gets everything.
GAUDRON J: Apparently it was printed off by my chambers, and only one copy.
MR McQUILLEN: I have copies.
GAUDRON J: Good. You have the same one, do you? Butterworth’s unreported?
MR McQUILLEN: No, I have the unreported court sheet from the New South Wales Bar Association library.
GAUDRON J: Well I will have the copy of yours.
MR McQUILLEN: This is another order of his Honour Judge Christie, in which the Court of Appeal were asked to deal with, having regard to the manner in which his Honour dealt with the application and ‑ ‑ ‑
KIRBY J: What ground of appeal does this go to? I mean, we have been through whether the injunction should have been granted, we have been through the excessiveness of the punishment, we have been through the can a sentence be restored, and suddenly we are back into the question of Mareva injunctions? I do not understand the structure of your argument.
MR McQUILLEN: Sorry, your Honour, I did not mean to confuse your Honour, but the main thrust of my argument is, at the end, that an order of this nature should not be made or is not available either by the Supreme Court or the District Court.
KIRBY J: So we are back to one. I see.
MR McQUILLEN: Yes.
KIRBY J: I notice you have a ground of appeal complaining about the failure or refusal of the Court of Appeal to grant bail to your client; is that still a live issue or not, given that this Court granted bail?
MR McQUILLEN: No, your Honour.
KIRBY J: It would be curious, would it not, because though this Court has said in Burgundy Royale that ordinarily the trial courts or the courts from which the appeal comes should provide the stay or other similar orders, if they did it, they run headlong into Whan; whereas if we do it, we have the powers under the Constitution.
MR McQUILLEN: Well that is precisely the problem that may have confronted the Court of Appeal when they were considering ‑ ‑ ‑
KIRBY J: That means that in this particular, the applicant has to come to this Court until the Parliament has rectified the position.
MR McQUILLEN: See, one of the problems was, on this very point, the Court of Appeal refused bail. Now, in those circumstances, it was to that court that the bail application is properly made. By the refusal of bail, and assuming there was a special leave application, the appellant may well have served his sentence by the time this appeal came on and, in fact, that would be the case, because this sentence terminated on 3 August.
KIRBY J: In Mr Young’s case, you will remember that it is mentioned in the case that he was out for several days.
MR McQUILLEN: Yes.
KIRBY J: Is it reported elsewhere whether the Court of Appeal ever returned to whether it could provide a sentence in those days that he was at large or was that just deducted from his sentence? Do you know?
MR McQUILLEN: I do not know the answer to that.
KIRBY J: It is not revealed by the reports.
MR McQUILLEN: I do not believe so.
KIRBY J: Very well. I do not remember.
MR McQUILLEN: I remember that he was out for a few days. Yes, I remember that.
KIRBY J: And then bail was revoked because, I think, of the Whan problem.
MR McQUILLEN: Yes.
KIRBY J: I am sorry. I diverted you. We are back to Frigo.
MR McQUILLEN: At page 9 ‑ ‑ ‑
GUMMOW J: Who delivered this judgment? We do not have page 1. I know it is a court presided over by the President. It was Justices Sheller and Sheppard.
MR McQUILLEN: The President, Justice Sheller and Justice Sheppard. The court did. Yes, it was the court, your Honour.
KIRBY J: Could we have page 1 supplied in due course. It is missing from this copy that we have been given.
MR McQUILLEN: Certainly, your Honour. Certainly.
GUMMOW J: So it is a judgment of the court.
MR McQUILLEN: Yes. The orders of the District Court judge were set aside in the view of the court and some general remarks were made. At page 9 the court took the view that:
On existing authority, the District Court has jurisdiction –
They referred to this matter and then went on to deal with the section 46(2)(c) of the District Court Act. At the bottom of the page the court said:
A mareva injunction is an exceptional interlocutory remedy. Its function is to minimise the possibility of an unscrupulous defendant seeking to render himself or herself “judgment proof” by taking steps to ensure that no assets within the jurisdiction can be found on the day of judgment…..However it is a drastic remedy which should not be granted lightly.
Further down on page 10:
A mareva injunction is an interlocutory order which, if granted, imposes a severe restriction –
again, this case here –
upon a defendant’s right to deal with his or her assets…..Its purpose is to preserve the status quo, not to change it in favour of the plaintiff.
Now, your Honour, at page 11 what I have already referred to, at the bottom of the page, is:
There must be evidence of at least a more than usual danger of assets being removed –
and reference to Patterson’s Case and it is useful when the court referred to matters that need to be dealt with such as reasons, the question of an undertaking as to damages was ‑ ‑ ‑
KIRBY J: I do not quite see how this works in because I can understand you complain about the lack of reasons but your attack is on power. You have to say there was no power to make the orders.
MR McQUILLEN: Yes.
KIRBY J: The fact that they have the power and do it in the wrong way is not really relevant.
MR McQUILLEN: What this goes to is, your Honour, that this remedy has to be carefully exercised, even at an interlocutory stage and before judgment. A fortiori, after judgment, this remedy either does not exist in the form at which it does as an interlocutory remedy or, it exists in a different form which is a special jurisdiction and is reserved to a superior court in ‑ ‑ ‑
KIRBY J: Yes, but your correct remedy, if you are complaining about lack of reasons or that it was not done in the right way is to do exactly what Mr Frigo did, and that is to appeal the order not to then disobey it and say that you are entitled to have that taken into account in the punishment for contempt.
MR McQUILLEN: But what this demonstrates is an example of the fact that a court can have, by its order, a drastic effect upon a judgment debtor and this is a matter which needs to be carefully considered both in the context of the power of the District Court, having regard to what is occurring in the District Court – obviously from this case and Frigo’s Case that orders are being made in circumstances whether they ought not to be made because of lack of power, that it can operate unjustly upon a judgment debtor and the fact that there is no need for a court to intervene once a judgment has been obtained because the usual remedies are available. These matters are referred to in that judgment, such as legal expenses, living expenses, all of those things are matters which were not here in this case and particularly in a situation where there was no right of review.
CALLINAN J: There was an undertaking here, was there not? No, there was not any need for one, you say, but you accept, do you not, that there is no need for an undertaking?
MR McQUILLEN: Yes, there would have been no need, because a judgment had been issued.
CALLINAN J: It seemed to be one of the major factors influencing the Court of Appeal in the case you have handed up, that the fact that in a case in which an undertaking was called for, none was given, and the applicant’s counsel did not remind the judge of the need for one.
MR McQUILLEN: Yes, and simply the point is that this demonstrates what can happen, the consequences that can occur where this remedy is not confined within limits, to what extent does it really go, and that question is rhetorical, but there are obviously limits to it which should be carefully considered and dealt with.
KIRBY J: Everybody accepts that; I do not wish to be tedious, but your complaint about it is to do what Mr Frigo did; not just to ignore it. When an order is made by a court, let it be a court or a District Court, it still has to be obeyed.
GAUDRON J: Well you say, in the circumstances as they transpired, you were prevented from it.
MR McQUILLEN: Yes, because we could not appeal.
GAUDRON J: You could not provide the security for costs whilst the order stood, and therefore your appeal got struck out, which perhaps manifests another difficulty with it; the order may, in fact, not be one that is protective of the jurisdiction of courts, but inimical to the exercise of its proper jurisdiction.
CALLINAN J: Ousting an aspect of it, an important aspect, an appeal as of right.
MR McQUILLEN: And, when one looks at the order made in this case, it appears that his Honour the learned District Court judge may have misunderstood, indeed, the fundamental distinction between what is a pre‑judgment Mareva and a post-judgment Mareva, if there is, using those phrases, Mareva injunction, because, what has been done is that his Honour has seen that a Mareva is available pre-judgment, but has failed to recognise that it is not so available in that form post-judgment, and that is evident by the fact that there was, before him, a notice of motion prior to the resumption of the hearing or at the time of the resumption of the hearing ‑ ‑ ‑
GUMMOW J: We have seen that. That was prepared in March for a presumed hearing in April and it seemed to ask for orders pending judgment.
MR McQUILLEN: Yes, and I can only reinforce that by saying that, well, perhaps, what was open to the District Court judge was to deal with the matter, if it was available then, if there was proper evidence before him.
CALLINAN J: That motion was not really invoked, as it were, or sought to be dealt with until after judgment, was it not?
MR McQUILLEN: That is so. In fact, the motion was taken up by his Honour because, whilst he ‑ ‑ ‑
GUMMOW J: He says, “This is my decision on the substantive matter, and now I turn to deal with the motion”. That is what he says to them.
MR McQUILLEN: That is what he said. In other words it was not invited or ‑ ‑ ‑
GAUDRON J: We are familiar with what happened.
CALLINAN J: Yes.
KIRBY J: Well, depending on the power it is an entirely understandable thing to do. The judge has said, “I have now provided a judgment, and I am now going to turn to make sure that the judgment is not completely thwarted.
GUMMOW J: Even though there is no such application.
MR McQUILLEN: Yes, indeed. How is it thwarted? ‑ ‑ ‑
KIRBY J: There was evidence of thwarting.
MR McQUILLEN: He is going to enter judgment. He has made a decision that there should be judgment in favour of the plaintiff. The judgment should operate, unless there is evidence before the judge, in a proper fashion, to say this judgment is likely to be ‑ ‑ ‑
KIRBY J: There was evidence, there was an affidavit of Mr Rahme. It may not have been the evidence I would have acted on, but we are talking about power that was acted on by this judge.
MR McQUILLEN: Yes, I appreciate that, your Honour, but I merely say this is one of the vices that the confusion crept in to the learned District judge’s mind, as to the difference between an interlocutory remedy and a remedy available after judgment, and that was not this type of remedy.
KIRBY J: Well, you say that, but reading between the lines, one suspects that the District Court judge formed exactly the same view of your client as did the Court of Appeal.
MR McQUILLEN: Well ‑ ‑ ‑
CALLINAN J: Mr McQuillen, I cannot see why – and you might be able to help me on this – the material which was relied upon for the order that was made would not equally have supported a writ of execution sought under section 107.
GAUDRON J: And perhaps which gets the person to prevent him leaving the country, for which there is also a provision in the District Court Rules.
CALLINAN J: Section 113; either or both of 107 ‑ ‑ ‑
KIRBY J: Presumably under 107 you would have to give the judgment debtor time to satisfy the debt. You cannot just say, “You are in court now. I have made this order. Have you satisfied the debt?”. You have to provide some time because it only attaches where the judgment debt arising from the action has not been satisfied.
MR McQUILLEN: As I understand it, once judgment is entered, the judgment creditor had available to it a means of execution in that form upon the leave of the court. That could have been applied for. If there was a hurry to do something here, if there was some matter exercising the judge’s mind, and it is a curious statement by his Honour at page 92 that:
Having regard to the view that I have of the defendants’ evidence in this matter I propose to accede to the orders sought –
KIRBY J: I do not think it is curious at all.
GUMMOW J: But it was not the order sought.
MR McQUILLEN: It was not? No, it was not, not precisely.
GUMMOW J: No.
MR McQUILLEN: What his Honour was doing was referring to something, some impression that he had in the manner in which he carried out his cross‑examination of the witnesses.
GAUDRON J: We think we understand that argument, Mr McQuillen. You appear to have covered everything in your written submissions.
MR McQUILLEN: Yes, it was these two authorities that had come to our attention from the Registrar, which is Harris v Beauchamp and Soinco. Harris v Beauchamp is ‑ ‑ ‑
GUMMOW J: We have been taken fairly thoroughly through them by Mr Hughes, as you may have heard.
MR McQUILLEN: I appreciate that. You have heard Riley McKay and Jackson ad nauseam by now, your Honours, and merely I say this, that what is available is the special type of remedy such as the equitable execution that could be availed of, in a situation where - if there was an impediment to execution.
GUMMOW J: Does the District Court have power to order equitable execution?
MR McQUILLEN: That is precisely the matter. It does not have that sort of power to go into a special jurisdiction which is ‑ ‑ ‑
GUMMOW J: It does not seem to be in the division ‑ ‑ ‑
KIRBY J: On one view it is not a special jurisdiction but a large and general jurisdiction.
GUMMOW J: It does not seem to be in Division 4 amongst enforcement of judgments.
GAUDRON J: Section 46 does not help because it is concerned with injunctions.
MR McQUILLEN: I should also say that whilst on the question of this area of power, section 140 which deals with temporary injunctions speaks of jurisdiction and section 46 speaks of power. It, in my view, in section 140 ‑ ‑ ‑
GUMMOW J: That section has been in the District Court legislation for some time, has it not? It has been there since 1973.
MR McQUILLEN: Certainly, yes.
GUMMOW J: But the figure has been increased, I think. It used to be 5,000.
MR McQUILLEN: Yes, but certainly that is limited and then section 141 deals with the powers of the court under this subdivision so far as powers to issue these temporary injunctions.
GUMMOW J: Yes, 46 only went in in 1994.
MR McQUILLEN: I think there was an amendment to it but certainly section 46 was there and subsection (1) was there before 1975.
KIRBY J: Something went in in 1994, some amendment was inserted.
MR McQUILLEN: Your Honour, further in relation to this question of power, there is the article of the inherent jurisdiction of the court by Mr K. Mason, QC, as he then was, now the President of the Court of Appeal in which ‑ ‑ ‑
KIRBY J: Where is that?
MR McQUILLEN: That is in 57 ALJ 449 and the author there deals with the question of punishment of contempt at page 452 and, of course, the inherent jurisdiction or inferior ‑ ‑ ‑
KIRBY J: Why are we going into inherent jurisdiction? Is this in order to study what the Supreme Court had that devolved on the District Court by section 46?
MR McQUILLEN: Yes, dealing with the Supreme Court as well as the District Court and ‑ ‑ ‑
GAUDRON J: Well, your significant point of the article surely is that that part where the author refers to a superior court, to wit the Supreme Court, acting in aid of the jurisdiction of an inferior court, at page 456.
MR McQUILLEN: Yes.
KIRBY J: Well, if that is so, that means that you can never provide for an injunction for the protection of property after judgment and that supports your primary argument but it seems an astonishing proposition, that a power which has inherited the powers of the Court of Queens Bench in England does not have that power. It seems astonishing in a proper case.
MR McQUILLEN: Yes. What the author does is refer to the Mareva injunction, in particular, at page 457 in the left‑hand column at the bottom and deals with the case of The Queen v Forbes; Ex parte Bevan which dealt with inherent jurisdiction. It went on to express a view – the author expressed the view that:
this case is not an authority that would deny to the Federal Court or to a District Court or County Court the power to issue a Mareva injunction, but the question must remain an open one.
What, obviously, was exercising the author’s mind and, indeed, what was occurring in the court in Ex parte Bevan, was that courts of an inferior jurisdiction – what has to be done is look at the purpose for which the particular order is intended. In other ‑ ‑ ‑
KIRBY J: This would be a tremendous argument but for section 46, and depending on the construction of section 46, it is still a good argument but upon the construction which has been advanced, section 46 in this exceptional particular brings into the District Court the same powers as the Supreme Court judges have.
MR McQUILLEN: Yes. Whilst it can protect itself functioning as a court, it is limited in that protection, and that is the point so far as inherently is concerned, that I make, that section 46 could not give to the District Court the type of extensive power that the Supreme Court has in making an order, which is inimical to the administration of justice or to prevent an abuse of process.
GUMMOW J: Now in Thomson Australian Holdings Pty Limited (1980‑1981) 148 CLR 150, it was held that even section 23 of the Federal Court Act did not empower the Federal Court to accept any undertaking that it wished; that there were constraints on these things and that had very significant questions flowing from that and, in reaching that decision, the Court applied, what had earlier been said in Bevan, particularly by Justice Menzies, and it is Bevan that is referred to in Justice Mason’s article, that you just took us to, in 56 ALJ, so there are some things courts cannot do, even the Federal Court of Australia.
MR McQUILLEN: Yes. They are the submissions I wish to make in relation to section 46 and the inherent jurisdiction.
It is my submission that, per se, disposing of one’s assets does not necessarily amount to an abuse of the powers of the court.
KIRBY J: Not necessarily, but where a judge has ordered you not to do so and you understand the word “encumber” and you have encumbered, then that puts it into a very different class.
MR McQUILLEN: But that order can only go so far as it would be necessary for the administration of justice so that if the order is not aimed at this case here, in my respectful submission, then the order does not go. There is no power.
GUMMOW J: Are we near the end of the road?
MR McQUILLEN: Yes, I am just making sure that I have covered what I wanted to say, your Honours, and I think that is all the matters that I have to cover and unless the Court has any questions, they are my submissions.
GAUDRON J: Thank you, Mr McQuillen. Mr Menzies, we will see what you can say in 15 minutes or so.
MR MENZIES: Yes, thank you, your Honours. Just whilst it is in my mind, could I just respond to one matter that Justice Callinan raised on the Sentencing Act. Section 8(1) of the Sentencing Act ‑ ‑ ‑
GUMMOW J: Is that on anyone’s list, do you know?
MR MENZIES: No, it is not, your Honour. Could I just read it? Section 8(1) provides this:
When setting a minimum or fixed term, a court is required to specify the day on which the term commences or commenced and the day on which the prisoner will be eligible to be released from prison or on parole.
That seems to be the reason for the Court of Appeal taking that course.
CALLINAN J: Except, Mr Menzies, as I pointed out to Mr McQuillen, Whan’s Case seems to have put it disjunctively and the decision does not seem to depend simply upon, or it may not – that such a result may not depend simply upon the wording of an Act such as that Act. Remember the passage I read to Mr McQuillen.
MR MENZIES: Whan’s Case is under another Act which has not been repealed but which deals with the periodical ‑ ‑ ‑
CALLINAN J: But there is a statement that seems to be of general application in circumstances of this kind where a date is actually specified with respect to each of the beginning and the end of the sentence.
MR MENZIES: Yes, your Honour.
CALLINAN J: I mean, you are right to tell me what the full content of that section is but I do not know whether, on the passage that I read out, the absence of such a provision would be decisive in circumstances in which there is an actual specified date for commencement and end of the sentence. You remember the passage I read.
MR MENZIES: Could I just remind myself.
CALLINAN J: I will see if I can find it.
McHUGH J: It is at 153 CLR 635, I think.
CALLINAN J: At about point 8, something like that, point 7, point 8.
MR MENZIES: Thank you.
A sentence of imprisonment, like any other court order, must operate in accordance with the terms –
Is that the ‑ ‑ ‑
CALLINAN J: Yes, and it is put, you will notice, disjunctively, because it says the framing of the sentence, or the effect of “overriding statutory provisions”. The sentence here seems to be framed by reference to specific dates. It is a matter that I had not noticed at first, it was only later that I saw it, and that may be this sentence, perhaps.
MR MENZIES: Of course, Whan’s Case is authority for the simple proposition that a convicted person who was granted bail, his sentence continues to run unless the sentence has been stayed.
KIRBY J: Why would that not apply here?
MR MENZIES: Because the effect of Justice Gummow’s order, and subsequently the order of the Court on the special leave application, was to bring about the same result. That is to say, stop the clock so that the execution of the sentence no longer continues.
KIRBY J: But there was no stay of the order of the Court of Appeal so, on its face, that order continued to operate. You see, we would have to construe this in a way that is defensive of the liberty of the appellant.
MR MENZIES: Well, your Honour, our respectful submission is that one construes Justice Gummow’s conditional bail as, in effec, operating as a stay and, of course, there is no doubt that this Court has inherent power to stay a sentence or to grant bail to preserve the subject matter of the litigation. There can be no doubt of that. So that all that was occurring was the taking steps to do that very thing; preserve that subject matter so the Court’s orders would not ultimately be put to nought. Of course, the other way of looking at it is that that conditional bail was acceded to; my learned friend was specifically asked, do you accept those conditions? Answer, yes. He cannot now come to this Court and say, we submit, that there is no longer a sentence to serve, because that is asking this Court to lend itself to an abuse of process.
KIRBY J: Yes, well assume we took a view that the sentence imposed of imprisonment was inappropriate or that an error of principle had taken place, who re-sentences?
MR MENZIES: This Court.
GAUDRON J: Or it can remit, if it thinks fit.
MR MENZIES: Or it could remit, but, of course, about that we say, (a), there was no ‑ ‑ ‑
KIRBY J: That has to be on an assumption that the previous order has been vacated, because you cannot have two orders operating in the same context and what has vacated the operation of the previous order? It has never been expressly stayed.
MR MENZIES: It continues not to run, your Honour.
KIRBY J: It is not said.
MR MENZIES: The conditional bail was granted on the basis that it would not continue to run and there is not reason why, if needs be, it might seem to be a ‑ ‑ ‑
KIRBY J: Why did not the Crown, or the Registrar ask that the order be stayed?
MR MENZIES: That was raised by the Crown advocate before Justice Gummow and, as I read the transcript, his Honour’s response was to formulate a conditional bail, which had the same effect. And it was raised again before the Court on the special leave application, and the then Chief Justice simply dealt with it by continuing the same conditional bail and stating that the matter could be dealt with by this Court. So it was not a matter which was not adverted to and brought to the attention of the Court one way or another. In our submission, the way that it was dealt with by the conditional bail was a perfectly adequate means of bringing about that result.
CALLINAN J: Mr Menzies, I see in a New Zealand case referred to in Whan, that when the prisoner escaped, it was held that time continued to run.
MR MENZIES: Yes, indeed, and until someone stops the clock, time runs, whether the person escapes or someone overlooks it.
KIRBY J: The problem I have is that it says that the time during which the applicant is out on bail, pursuant to this order, will not be taken into account in calculating the period of service of his sentence, pursuant to the judgment of the New South Wales Court of Appeal. So that that does not set aside the sentence. It assumes that it is not taken into account in the service of it. It is just a question of whether it still exists, having, in the theory of the law as explained in Whan, been served. This was not a mystery to the Registrar of the Court of Appeal. This was a common problem.
MR MENZIES: I appreciate that, your Honour, but the only response I can make to your Honour’s concern is that the matter was dealt with by what amounted to a stay. It was a stay by any other name. But, your Honours, can I turn ‑ ‑ ‑
McHUGH J: Before you leave, part of the problem I think arose because the Crown advocate said there was not any power to stay the sentence.
MR MENZIES: Well, the Crown advocate – I have to resile from that ‑ the Crown advocate, with respect to her, I think overstated the position. On Whan’s Case there was no power to stay under a sentence imposed under the Periodic Detention of Prisoners Act, but this was not one of those cases, of course. This was a case under the Sentencing Act.
McHUGH J: Yes, but it would not make any difference, would it, as far as this Court is concerned. I do not think Whan’s Case has got anything to say whatever about the powers of this Court ‑ ‑ ‑
MR MENZIES: No, I accept that entirely.
KIRBY J: Except that the very problem that arose in Whan was not a problem, on the theory that this Court can fix it up.
MR MENZIES: The problem that arose in Whan is a problem for the Court of Appeal.
McHUGH J: Yes, it was the Court of Appeal that purported to stay the order.
MR MENZIES: But not a problem for this Court, with respect, your Honour.
McHUGH J: Because we exercise constitutional jurisdiction.
MR MENZIES: Yes.
GAUDRON J: While we are on the subject of bail, Mr Menzies, we are obviously not going to finish this case today, and I raised with Mr McQuillen earlier whether there was to be bail application.
MR MENZIES: Your Honour, Mr McQuillen showed me a set of proposed conditions which repeated the ones that have already been granted with an appropriate amendment to deal with the period from now.
GAUDRON J: I think there are some problems about the conditions that were granted – minor problems – in relation to order 5. I am looking at the orders that appear at pages 14, 15 of the transcript before the Full Bench on the special leave hearing. If you look at order 4 ‑ ‑ ‑
MR MENZIES: Can your Honour just bear with me for one moment.
McHUGH J: It became order (g).
GAUDRON J: The problem with that order is that it did not permit the appellant to come to Court for today’s proceedings and would not permit him to come to Court for the adjourned proceedings.
GUMMOW J: (d) on page 450.
MR MENZIES: Yes.
GAUDRON J: That seems to me that that is a matter which really should be rectified so that it would read that he not leave the State of New South Wales other than for the purpose of attending the further hearing of this matter by this Court in Canberra.
MR MENZIES: Of course, your Honour.
GAUDRON J: Does anybody have any difficulties with that?
KIRBY J: I am content with that, but is Mr McQuillen able to give an undertaking that the conditions as to bail will be conformed to?
MR MENZIES: That is a matter for Mr McQuillen, your Honour.
MR McQUILLEN: I am not in that position, because of the lack of contact with Mr Pelechowski.
KIRBY J: See, this is all part of a pattern.
GAUDRON J: Well, maybe.
KIRBY J: I think if he does not give the conditions as to compliance with bail, then this Court ought to consider what it does to revoke the bail and, if it has the power, to resentence him or to ensure that he is resentenced.
GAUDRON J: Well, at this stage, so far as we know, he has complied with the conditions.
MR McQUILLEN: Well, it is now 4.15 pm and he has not ‑ ‑ ‑
GAUDRON J: There is a difficulty with order 5, it seems to me, to bear directly on this problem; it does not specify at what time or at what place he was to present himself today. So I would suggest that if it were to be continued, that order 5 should read, “That on the date and at the time to be notified by notice to him in writing by the Registrar of the High Court as the date upon which the judgment of the High Court will be delivered, he surrender himself to the Sheriff.” – et cetera. It seems to me that it is at least arguable that he might comply with that order by turning up at 10 o’clock tonight and finding there was no one there.
MR MENZIES: He is not in contempt until after midnight, your Honours.
GAUDRON J: Yes.
KIRBY J: But what I am concerned at is that the Court should not be trifled with here. The provision of bail is a serious matter and, so far as we know, he has not conformed with 5 – now it may be that there is some excuse for that – but if we, out of the power of the High Court of Australia, fix orders as to bail, I think we ought to be informed as to whether the appellant gives the undertakings and will conform to the conditions which
the Court fixes, because if not, I think we should take resolute action, speaking for myself.
McHUGH J: I agree with those remarks.
MR MENZIES: As I understand it, Mr McQuillen is bereft of instructions on that issue and I do not wish to be heard on what necessarily flows from it.
MR McQUILLEN: I cannot say anything more other than the fact that we have lost contact with Mr Pelechowski, although we believe that he is reporting to the officer in charge of the police station at St Marys, that communications have been sent to the officer there to relay to him, that he has been in contact with the Registrar of the Court. I cannot advance it any more because of that lack of contact. I wish I could assist the Court in some way. I would see those terms as more appropriate and I appreciate the concerns of the Court.
KIRBY J: May it not be appropriate that the terms be conveyed to him by the Registrar at the last known address and at the police station in St Marys for service on him there or provision to him there and that in a time that would allow for his attendance at the police station in accordance with the conditions, that the matter be listed before a single judge to ascertain whether he gives the undertakings and, if not, the matter could then be taken further by the court.
GAUDRON J: Perhaps a problem with that is: why are any undertakings necessary? We can make orders. We have made orders. It does not seem to me that we impose ‑ ‑ ‑
GUMMOW J: We impose the conditions.
GAUDRON J: We impose them. It does not seem to be necessary that the appellant accept them. If he does not accept them, bail will be revoked.
MR McQUILLEN: The Court has undertaken a hearing of the appeal and ‑ ‑ ‑
KIRBY J: You say that you have lost contact with him. Is he still residing with his mother at the address?
MR McQUILLEN: Yes, from what we understand, I believe so. The reports that we have got from the police officer, through my instructing solicitor, is that he is turning out to the police station at St Marys. I understand from their inquiries he is still residing; that written communications have been handed to him at St Marys Police Station, and, of course, the communication to the Registrar of the Court, Ms Rogers, and I think apart from that, that is as far as I can take it.
KIRBY J: Was bail ever entered in accordance with (f) “before the Sheriff of the Supreme Court…..of New South Wales.”?
MR McQUILLEN: I believe that was done. It must have been done because when he was granted bail by Justice Gummow, that would have had to have been done on that occasion, and this was merely a continuance.
KIRBY J: And if we now vary the terms of the bail – that is to say by (d), adding the words “except to attend the proceedings in this Court”, and (e), by specifying that the notice will be at the address of his mother, because otherwise there may be a debate as to where the notice was served by the Registrar, we would then still have to admit him once again to bail which he would have to give once again, in accordance with the varied terms.
MR McQUILLEN: Yes, to the sheriff.
KIRBY J: He cannot be fixed with terms that he has not entered before the Sheriff.
MR McQUILLEN: Yes.
GAUDRON J: I do not know about that. I do not think ‑ ‑ ‑
MR McQUILLEN: If he is made aware of that requirement, then it is a matter for the appellant.
McHUGH J: Well, I rather think that a whole new set of bail orders have to be made; that, on their face, these orders seem to have come to an end today, or this morning.
KIRBY J: It does say, “pending the determination of the appeal”, and we have not determined it.
GAUDRON J: Well it is pending the determination of his appeal. At page 449, he is admitted to bail, pending the determination of the appeal.
GUMMOW J: That is why it was drafted that way.
McHUGH J: Except (e) calls on him to surrender himself to the Sheriff on the date upon which the appeal will be heard, to serve any balance of his remaining sentence unserved. So, one of the conditions was that, despite the opening words of paragraph 2 at 449, he was obliged to surrender himself this morning to serve the sentence. So it rather looks as if another order is required.
MR McQUILLEN: Yes.
GAUDRON J: Well, it is only necessary to continue bail.
McHUGH J: A self-executing order, yes.
GAUDRON J: But he is not yet in breach of (e) because it runs until midnight.
MR McQUILLEN: My learned friend advises me that a letter was sent to the Sheriff’s Office in the Supreme Court advising that the appellant was to surrender himself to that sheriff and that the hearing of the appeal was to commence at 10.15 on 8 October in Canberra and there was enclosed, apparently, with that letter from Carolyn Rogers, Senior Registrar of the Court, a copy of a letter to Mr Pelechowski ‑ ‑ ‑
KIRBY J: Well, in the old days, Mr McQuillen, if a person did not conform to the orders and the conditions which he had agreed to as to his bail before the lowest Magistrate’s Court in the land,. they would be up on the next return day to be dealt with by the magistrate for failing to comply with the bail conditions.
MR McQUILLEN: Yes.
KIRBY J: Now, I do not see why it should be different now and before the highest court in the land.
MR McQUILLEN: Yes. Your Honour, I totally agree with those comments except I can say this, that this problem was brought to your Honour’s attention by reason of the application last week, because we anticipated there was something amiss. We could not determine what that was and there may be an explanation for why. Your Honour did indicate, when I pressed upon your Honour that perhaps there was a suggestion of…., your Honour indicated that this man may have problems and ‑ ‑ ‑
KIRBY J: Yes, but one important matter has developed, and that is that, at least until now, as we understand it, he has not conformed to the condition ‑ ‑ ‑
MR McQUILLEN: Yes.
KIRBY J I said I would not draw the inference that he would not conform to the condition. By midnight tonight we will know whether he has or has not and it may be that the Registrar should consideration of whether the matter is not brought before the Court next week, if he has not conformed to those conditions.
MR McQUILLEN: Yes.
KIRBY J: I just do not think bail conditions are to be trifled with, and I do not think, speaking only for myself, that the High Court of Australia’s orders, which are made on condition, should be trifled with.
MR McQUILLEN: Well, your Honour, there may be an explanation which can be made. I do not know, and I think that the fact that we have had no communication, I say that because that may be the case. I do not know. I do not know that it is a matter of trifling with this Court at the moment, at all, but ‑ ‑ ‑
KIRBY J: Why do we solemnly sit here to add new conditions when the inference is almost inescapable that the conditions which we have fixed have not been complied with.
MR McQUILLEN: Well, they have, substantially, except for today.
KIRBY J: It is not an insignificant matter.
MR McQUILLEN: No, your Honour, no.
KIRBY J: It is very common that people have to surrender themselves with their toothbrush for the return of the matter, in case they are sent into custody again.
MR McQUILLEN: Yes.
KIRBY J: He was happy to take his bail. He was happy to give lip service to the conditions, but apparently he has not conformed to one of them.
MR McQUILLEN: Well, to that particular condition, (e), that appears to be so, however ‑ ‑ ‑
GAUDRON J: Does it not come down to this? If the Crown wishes to put on a motion next week, it will come before whoever is the duty judge to be dealt with, but, in the meantime, certainly from my point of view, there is considerable ambiguity in that order and, for my part, I think that would be appropriate.
I think apart from the matters I raised with you as to the various amendments, that (e) should be amended at the end” to serve any sentence then to be served”, “any sentence, or the balance of any sentence, then to be served”.
KIRBY J: Why should we not now, in the light of what has happened, fix a condition that requires him to attend on the return of the appeal, which is going to be on a date in November, so that we can there and then deal with him, whatever is the appropriate order, if we wish to? Why would that not, as it were, see whether he will conform to deal with ‑ ‑ ‑
MR McQUILLEN: On the continuation of the appeal on another day.
KIRBY J: Simply make no orders as before the bail at the moment, in the sense that one could take the view that, pending determination of the appeal, the present bail conditions, or some of them, may continue to operate, but direct that he attend before this Court when the hearing of the appeal is continued.
MR McQUILLEN: Yes, your Honour, that would be a course that would be within the confines or within the meaning of paragraph 2.
GAUDRON J: I think there being a special leave day in Sydney, if we are going to further bicker about the order between ourselves, the appropriate course is for it to be adjourned into chambers before a single Judge to sort it out immediately.
MR McQUILLEN: Yes.
GAUDRON J: It seems that we gave agreed as to the orders to be made, namely that bail will be continued on the terms which were first imposed, and reimposed on 1 May 1998, subject to these changes. As to what is order 2(d) of the order of 1 May 1998, that that will read that he “not leave the State of New South Wales other than for the purpose of attending the further hearing of this matter by this Court in Canberra”. I will later come to the date for that.
It appears that we have difficulties again so we will now adjourn. The matter will be determined in chambers by Justice McHugh.
The matter will be listed for further hearing on Tuesday, 10 November, in Canberra at 10.15 am.
AT 4.30 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 10 NOVEMBER 1998
Key Legal Topics
Areas of Law
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Administrative Law
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Civil Procedure
Legal Concepts
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Abuse of Process
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Appeal
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Judicial Review
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Procedural Fairness
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Standing
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Stay of Proceedings
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