Powell v In De Braekt
[2007] WASC 165
•27 JULY 2007
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | POWELL -v- IN DE BRAEKT [2007] WASC 165 |
| CORAM | : SIMMONDS J | ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
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| BETWEEN | : MIA MARY POWELL |
Plaintiff
AND
ANNA MARIA HUBERTINA IN DE BRAEKT
Defendant
Catchwords:
Contempt - Letter addressed to deponent of affidavit tendered in proceedings for removal of caveat - Whether letter contempt by interference or attempted interference or procurement of interference or of attempted interference with administration of justice - Whether such interference as improper persuasion of or as victimisation of witness - Whether intention to interfere present and relevant - Whether there is offence of attempted contempt - Whether summary jurisdiction should be exercised
Legislation:
Criminal Code Compilation Act 1913 (WA), s 7
Result:
Motions for punishment for contempt dismissed
[2007] WASC 165
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M H Zilko SC |
| Defendant | : | Ms M in de Braekt |
Solicitors:
| Plaintiff | : | Hotchkin Hanly |
| Defendant | : | Megan in de Braekt |
Case(s) referred to in judgment(s):
Attorney-General v Butterworth [1963] 1 QB 696
Attorney-General v Times Newspapers Ltd [1974] AC 273
Australian Building and Construction Employees' and Builders Labourers'
Federation v Minister of State for Industrial Relations (1982) 43
ALR 189
Chapman v Honig [1963] 2 QB 502
Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Dentice v Valuers Registration Board [1992] 1 NZLR 720
Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322
Geelong Building Society v Encel [1996] 1 VR 594
Harkianakis v Skalkos (1997) 42 NSWLR 22
Heedes v Legal Practice Board [2005] WASCA 166
Henderson v Henderson (1843) 3 Hare 100
John Fairfax & Sons v McRae & Ors (1955) 93 CLR 351
Lane v Registrar of the Supreme Court of New South Wales (Equity Division)
(1981) 148 CLR 245
Martin's Case (1747) 2 Russ and M 674; 39 ER 551
Meissner v The Queen (1994) 184 CLR 132
Powell v In de Braekt [2006] WASC 264
Powell v In de Braekt [2007] WASC 4
R v Hillier [2007] HCA 13; 233 ALR 634
R v Kellett [1976] 1 QB 372
R v Mathews [1993] 2 Qd R 316
R v McLachlan [1998] 2 VR 55
[2007] WASC 165
R v Toney [1993] 2 All ER 409
Re Coroner's Court of Western Australia; Ex parte Porteous [2002] WASCA
144
Re Ludlow's Charities; Mr Lechmere Charlton's case (1837) 2 My & Cr 316;
(1837) 40 ER 661
Resolute Ltd v Warnes [2000] WASCA 359
Rogers v The Queen (1994) 181 CLR 251
Shepherd v The Queen (1990) 170 CLR 573
Smith v Lakeman (1856) 26 LJ (NS) Ch 305
State of Western Australia v Montani [2007] WASC 110
X v Australian Prudential Regulation Authority [2007] HCA 4
[2007] WASC 165
SIMMONDS J
SIMMONDS J:
Introduction
1 This is the decision following the hearing of two amended motions
for contempt. One motion is against a party to pending litigation to which the applicant is the other party. The other motion is against the other party's solicitor. The contempt alleged in each case was in respect of a communication by the solicitor with a medical practitioner who had sworn an affidavit in evidence in an interlocutory proceeding in the litigation. (I return to the characterisation of that proceeding as "interlocutory" below.) The communication had been after the delivery of the judgment in the interlocutory proceeding, some three and one-half months after the hearing at which the affidavit had been in evidence.
The hearing raised issues of the application of the common law of contempt to communications with a witness in such circumstances.
Background
3 Mia Mary Powell ("Mrs Powell") is the daughter of Anna Maria
Hubertina In de Braekt ("Mrs In de Braekt"). They are respectively plaintiff and defendant in proceedings by way of writ in CIV 1661 of 2004.
4 In my judgment on three interlocutory applications in CIV 1661 of
2004, one to restrain the solicitor for Mrs In de Braekt from acting, one to strike out certain contents of an affidavit of Mrs Powell, and one to strike out certain contents of another affidavit of hers, Powell v In de Braekt [2007] WASC 4, I set out the history of the underlying proceedings up to a judgment of Blaxell J in Powell v In de Braekt [2006] WASC 264 (in relation to other proceedings in the same action). The affidavit of the medical practitioner in respect of which the contempts are alleged was in evidence in the interlocutory proceedings before Blaxell J.
In Powell, Simmonds J (supra) I set out the history referred to as follows (at [7] – [16]):
"The plaintiff's action against the defendant was commenced by
writ issued on 17 May 2004.
The amended statement of claim in the action is dated
13 September 2004 and claims as principal relief:
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SIMMONDS J
• A declaration that the defendant holds a property ('the Victoria Park Property') on trust for the plaintiff, subject to a life interest in favour of the defendant; • An order that the defendant transfer the Victoria Park Property to the plaintiff subject to that life interest; and • Alternatively, an order that the defendant pay the plaintiff equitable compensation. The amended statement of claim pleads that the defendant is the sole registered proprietor of the Victoria Park Property, and that the plaintiff was the sole registered proprietor of a property in Lathlain Park ('the Lathlain Park Property'). In or about mid 1984 the defendant was living at the Victoria Park Property with her husband, the plaintiff's father. At that time he requested the plaintiff to sell the Lathlain Park Property and come to live with her parents at the Victoria Park Property, which she did. The defendant told the plaintiff the Victoria Park Property would be hers one day, and repeatedly affirmed the promise in a number of ways. It is further pleaded the plaintiff relied upon the promise in a number of ways, including paying her parents for child minding services they provided. Various forms of detriment arising out of the plaintiff's reliance on the promise are pleaded.
The defendant by chamber summons dated 5 October 2004 made an application for summary judgment resting upon arguments of a limitation of actions and unreasonable delay kind. The application was dismissed by Master Chapman by a decision given on 18 February 2006. The defendant on 21 September 2006 filed an application for leave to appeal this determination, and that application was heard, I was informed, on 27 October 2006, when, as I was further informed, his Honour Justice Buss reserved his decision.
A defence, set-off and counterclaim was filed on 27 July 2005. There are denials of the principal allegations pleaded in the amended statement of claim, as well as pleas of abandonment, lack of writing for the alleged express trust, defences of a limitations character, inequity in the plaintiff's assertions, and
[2007] WASC 165
SIMMONDS J
estoppel on a number of bases, including the plaintiff's failure to mention her alleged beneficial interest in the Victoria Park Property when the plaintiff had the defendant consent to guarantee mortgages on the property in connection with the purchase by the plaintiff of first one, and then another, lottery kiosk. There is a set-off claimed, including for amounts for board received from the plaintiff's daughter, the solicitor against whom the order applied for is sought, that would not otherwise have been received. There is a counterclaim, including for amounts in respect of lottery winnings by the defendant deposited into a bank account of the plaintiff's, and for gains made by the plaintiff from the guarantee mortgages.
A reply and defence to the set-off and the counterclaim was filed on 28 March 2006.
The defendant filed an application for further and better discovery, which was heard on 31 October 2006 by Master Sanderson, when the application was dismissed. The defendant has applied for leave to appeal this decision. As at the date of the hearing before me, that application had not been heard.
On 30 August 2006 a notice of change of solicitors was filed to substitute the defendant's current solicitor for the defendant's previous solicitors.
On 12 September 2006 the defendant filed an application by chamber summons for the plaintiff to show cause why a caveat lodged on 24 February 2004 on the Victoria Park Property should not be removed. The statutory declaration filed in support of that caveat indicates the caveator's interest is based on the promise the subject of the amended statement of claim. The application was heard on 20 October 2006 by his Honour Justice Blaxell, and judgment was reserved. At the same hearing, Blaxell J also heard and reserved judgment upon the defendant's application by chamber summons filed 17 October 2006 to strike out portions of the plaintiff's affidavit dated 28 September 2006 sworn in opposition to the defendant's application in respect of the caveat. His Honour's decision was delivered on 23 November 2006. At a further hearing on 29 November 2006 his Honour heard submissions for the variation of his orders in certain respects.
[2007] WASC 165
SIMMONDS J
In his decision delivered on 23 November 2006, Powell v In de Braekt (supra), his Honour concluded that the caveat should be removed, but that an injunction should issue restraining the defendant from dealing with the Victoria Park Property in a manner generally inconsistent with the plaintiff's claim. However, he added (at [46]:
'That injunction should not prevent the defendant raising funds by way of reverse mortgage to cover her medical and legal expenses as well as a further modest amount to be used in whatever manner she thinks fit. In my judgment, it is appropriate that the defendant be permitted to raise a total maximum sum of $200,000 in this way.'"
6 The orders of Blaxell J following his Honour's judgments were
subsequently varied; however, the proceedings for those variations do not appear to be material for my purposes. I was told at the hearing before me in the present proceedings that Powell, Blaxell J (supra), is the subject of an application for leave to appeal, CACV 154 of 2006.
7 At the hearing before Blaxell J on 20 October 2006 an affidavit of
Dr Andrew T Forward ("Dr Forward"), sworn 9 October 2006 ("the Forward affidavit of 9 October 2006"), was in evidence. It had been filed on 9 October 2006 and served on Mrs Powell's solicitors of record. John Hanly ("Mr Hanly") is a partner in that firm of solicitors and at all material times has been responsible for Mrs Powell's representation in CIV 1661 of 2004.
8 In the Forward affidavit of 9 October 2006, Dr Forward deposes he
is a general medical practitioner, and had been the general practitioner of Mrs In de Braekt for over 20 years, while Mrs In de Braekt's late husband had been a patient of his years for "several years" before his death in July 1989.
9 I note that the Forward affidavit of 9 October 2006 was referred to,
both by the solicitor for Mrs In de Braekt in the hearing before Blaxell J (see TS 22, TS 32, TS 36 – TS 40, TS 42, TS 43, TS 48, TS 49 and TS 51), and in several places in the judgment in Powell, Blaxell J (supra) (see [23] and [42]). I will return to the Forward affidavit of 9 October 2006 in more detail later in these reasons.
10 I need say no more here about the subsequent history of the
proceedings in CIV 1661 of 2004, except to note that on 30 April 2007 a
[2007] WASC 165
SIMMONDS J
summons for security for costs was filed. There has as yet been no listing
of a trial of Mrs Powell's action.
The matter in respect of which contempt is alleged
11 The matter relied upon is a letter dated 24 January 2007 from the
solicitors for Mrs Powell to Dr Forward ("the 24 January 2007 letter"). In the affidavit of Dr Forward sworn on 1 February 2007 ("the Forward affidavit of 1 February 2007"), Dr Forward deposes he received the 24 January 2007 letter on 29 January 2007.
12 I set out the 24 January 2007 letter in full after I have set out the
parts of the Forward affidavit of 9 October 2006 to which the 24 January letter specifically refers and some other matter from or relating to that affidavit.
13 The Forward affidavit of 9 October 2006 is 19 paragraphs long, over
three pages. There are no annexures. The affidavit addresses a number of aspects of Mrs In de Braekt's physical and mental condition as well as their development and causation.
In Powell (supra) Blaxell J said this in relation to the Forward affidavit of 9 October 2006 (at [23] and [42]):
"The defendant is also in need of funds to pay for a hip replacement operation (to her left hip) due to chronic osteoarthritis. According to the defendant's general practitioner Dr A T Forward, she is in urgent need of this operation but will have to wait a period of 12 - 18 months if it is performed within the public health system. If the surgery is performed privately, it can be attended to within a very short time, but will cost at least $25,000. The Forward affidavit of 9 October 2006 further states:
'18. In addition to funds for her hip replacement surgery, Mrs in de Braekt also urgently needs funds for her post- surgical care and ongoing safety and welfare, including rehabilitation (physiotherapy) sessions, nursing care, home cleaning/duties and meals assistance, tilt up bed with a pull up overhead handle and safety rails, a lift up chair, wheelchair, walking frame, crutches, orthopaedic and GP follow up consultations, medication and dressings, installation of ramps and handrails in her home, as well as improved lighting in and around her home and
[2007] WASC 165
SIMMONDS J
modifications to her bathroom. These additional necessary
costs will be between $20,000.00 - $30,000.00.'
…
As to the quantum of likely medical expenses, there is no reason why the estimate in Dr Forward's affidavit of $25,000 for costs of surgery should not be accepted. Dr Forward provides additional estimates of $20,000 - $30,000 for associated costs including home modifications, but these estimates may not be as reliable."
15 The Forward affidavit of 9 October 2006 says this, at par 5, and
par 6, the paragraphs in the affidavit specifically referred to in the
24 January 2007 letter:"Between 2003 and the present, I have observed a noticeable decline in Mrs in de Braekt's Health, including but not limited to the onset of significant stress and anxiety levels caused by her discovery in 2002/2003 of a sizeable guarantee mortgage over her home of more than 40 years and her only asset (her residence situated at 21 King George Street Victoria Park), and by her estranged daughter's and her second husband's refusal to remove the guarantee mortgage from her home, and repay money lent to them by Mrs in de Braekt.
The manner in which Mrs in de Braekt's estranged daughter and her second husband treated her whilst they were residing in the self contained upstairs premises of my patient's home, continued to cause Mrs in de Braekt consider amounts of stress and anxiety, eventually leading to her being clinically depressed (from which she still suffers). Mrs in de Braekt has spoken of these difficulties in many, if not all of her consultations with myself from about 2003 onwards."
16 I note in passing that these matters in par 5 and par 6 were not
referred to in the passages from the judgment in Powell (supra), which I earlier quoted. However, as I will note below, at least par 6 was referred to by counsel for Mrs In de Braekt and by Blaxell J at the hearing before him on 20 October 2006.
The 24 January 2007 letter, which was on the letterhead of the solicitors for Mrs Powell, reads, in full, as follows:
[2007] WASC 165
SIMMONDS J
"POWELL V IN DE BRAEKT
SUPREME COURT No. CIV 1661 OF 2004
We act for Mia Mary Powell who is involved the abovementioned Supreme Court proceedings against her mother, Anna Maria Hubertina in de Braekt, who is a patient of your practice.
You will recall swearing an affidavit on October 2006 in these proceedings. We enclose a copy of that document for your assistance.
Our client has serious concerns about the content of your affidavit and has instructed us to write to you to raise those concerns. Our client is minded to refer your affidavit to the Medical Practice Board [sic] but before doing so we have advised her that it is appropriate to give you an opportunity to respond to our client's concerns so that she may take those explanations into account before deciding whether to take this matter any further.
Would you please address the following issues:
1. Did you draft your affidavit?
2. Did you give instructions as to each and every matter in your affidavit?
3. In relation to paragraph 5 of your affidavit, do you know from your own knowledge that Mrs in de Braekt was unaware of 'a sizeable guarantee mortgage over her home'? Paragraph 5 of your affidavit refers to Mrs in de Braekt’s 'discovery' of this guarantee mortgage, and seems to indicate that you know, as matter of fact, that Mrs in de Braekt was unaware of the guarantee mortgage over her home.
4. Further, in relation to paragraph 5 of your affidavit, are you aware from your own knowledge that Mrs in de Braekt's 'estranged daughter and her second husband refused to remove the guarantee mortgage over the home'? Unless you inform us otherwise we assume that you would have no knowledge whatsoever about
[2007] WASC 165
SIMMONDS J
whether that is a fact or not but we would be interested to have your explanation as to why you were prepared to swear on your oath that Mrs in de Braekt's 'estranged daughter' (our client) and her second husband had refused to remove the guarantee mortgage.
5. Further in relation to paragraph 5 of your affidavit, you depose that our client and her second husband refused to repay money lent to them by Mrs in de Braekt. Again, we would assume that you would not have any direct personal knowledge whatsoever as to whether, either money was lent to our client and her second husband, or, whether our client and her second husband refused to repay money allegedly lent to them. We assume that this paragraph of your affidavit has been prepared by someone else but that you were prepared to sign it, however we would like to clarify whether you have any direct knowledge of these matters.
6. In relation to paragraph 6 of your affidavit, you depose on your oath that 'the manner in which Mrs in de Braekt's estranged daughter and her second husband treated her (Mrs in de Braekt) whilst they were residing in the self contained upstairs premises of Mrs in de Braekt's home caused Mrs in de Braekt considerable amounts of stress and anxiety which eventually led to her becoming clinically depressed'. You may have been told these things by Mrs in de Braekt in your attendances upon her but we assume that you would agree that you would have no personal or direct knowledge of the manner in which you client and her second husband treated Mrs in de Braekt whilst they were living in her house. If we are wrong about that please let us know what direct person information you have to depose to the matters set out in paragraph 6 of your affidavit.
We look forward to your written response within 14 days which response our client will consider in making any decision regarding the referral of your affidavit to the Medical Practice Board."
The letter is signed by Mr Hanly, "Partner", and following is the legend "cc: Client" (italics in original).
[2007] WASC 165
SIMMONDS J
19 It appears not to have been in contest before me that the reference to
the "Medical Practice Board" was in error, and that the Medical Board of this State, provided for under the Medical Act 1984 (WA), s 4 and following provisions, was meant. That body has the power, under s 13, among other things, to take certain action on matters of “infamous or improper conduct in a professional respect” by medical practitioners.
These proceedings
20 The Motions before me are in CIV 1661 of 2004. It was confirmed
in the hearing before me by the solicitor for the applicant that they were
brought under O 55, which I take to be a reference to O 55 r 4(1).21 However, there is no contest that they are brought under the
procedure for the common law offence of contempt, preserved by Criminal Code Compilation Act 1913 (WA), s 7, which I set out in full later in these reasons. That procedure although civil in form is criminal in substance, including in particular having the onus of proof on the applicant to the standard of proof of beyond a reasonable doubt: see Heedes v Legal Practice Board [2005] WASCA 166, per Roberts-Smith JA, Owen and Wheeler JJA agreeing, at [5].
22 There is a notice of motion for orders that Mrs Powell be found
guilty of contempt, and another notice of motion for orders that Mr Hanly be found guilty of contempt. By orders, apparently for both Notices, by Master Newnes (as he then was) of the Court on 2 March 2007, the applicant was given leave to amend the notice on or before 7 March 2007. Programming orders for the present hearing were also made at the same time.
23 On 9 March 2007 an amended notice of motion was filed for the
orders sought against Mrs Powell. The file for CIV 1661 of 2004 at the date of the hearing did not indicate any corresponding filing for the notice of motion for the orders sought against Mr Hanly. However, I was informed at the hearing that such a notice of motion in relation to Mr Hanly had indeed been filed, and no objection was taken to the hearing proceeding on the basis it had not been filed.
24 It became apparent from the amended notice of motion that one
further, minor, amendment was needed, to the order 2). I gave leave at the hearing for that amendment to be made, without objection by counsel for Mrs Powell and Mr Hanly.
[2007] WASC 165
SIMMONDS J
25 The two amended notices of motion are in the same terms, as regards
each "contemnor" (Mrs Powell and Mr Hanly: on the usage of "contemnor", see Law Reform Commission of Western Australia, Report on the Review of the Law of Contempt, Project 93, 2003, at 11). The orders sought are that (underlining in original):
"1) The contemnor … be found guilty of contempt, and [she or he, as the case may be] be committed to prison for contempt. 2) Or in the alternative, the contemnor … be found guilty of contempt, and [she or he, as the case may be] be fined for [her or his, as the case may be] contempt. And that
3) the contemnor be permanently restrained from taking any
action against Dr Forward in respect of the content of his
Affidavit sworn 9th October 2006.
4) The costs (on an indemnity basis) of, and incidental to this application in the amount of $ (amount to be advised), be paid (in full) by the contemnor within 14 calendar days of the issuing of these Orders."
Grounds for the application are set out, in 24 numbered paragraphs. They are in identical terms for each of Mrs Powell and Mr Hanly.
27 At the conclusion of the notice, there is the following, in the
amended notice of motion in relation to Mrs Powell (the brackets are as
they appear in the original):"The charge of contempt (framed in the alternative) is as
follows:
1/1
On or about 24th January 2007, in the State of Western Australia, MIA MARY POWELL caused and/or authorized a letter dated 24th January 2007, to be sent by her solicitors
(Hotchkin Hanly – in particular Mr John Hanly) for and on her
behalf, to (and then subsequently received on 29th January 2007by) Dr AT Forward, who had been a witness (by being the Deponent of an Affidavit sworn 9th October 2006, filed 10th October 2006 and relied upon by Mrs AMH during the hearing
[2007] WASC 165
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compensation application by summons dated 12th September on 20th October 2006) in proceedings (caveat removal &
2006, to which she [POWELL] was a party before the Supreme Court of Western Australia on 20th October 2006), which
contained threats of adverse consequences to Dr AT Forward due to the aforesaid evidence he gave in the aforesaid proceedings, and therefore committed contempt of Court by interfering with or attempting to interfere with the administration of justice, or by procuring an interference or procuring an attempted interference with the administration of justice."
It is not in contest that "Mrs AMH" is Mrs in de Braekt.
29 At the hearing it was confirmed that it was the addition of this
material that was the amendment to the notice of motion in relation to
Mrs Powell.
It was also confirmed then that there was the same amendment made,
mutatis mutandis, to the notice of motion in relation to Mr Hanly.
31 No objection was taken to the form of the "charge of contempt" as
formulated above, nor to its formulation "in the alternative". I note in passing that absent the "charge" an issue of procedural fairness might have arisen in this case: see Australian Building and Construction Employees' and Builders Labourers' Federation v Minister of State for Industrial Relations (1982) 43 ALR 189, FC Fed Ct, Smithers, Evatt and Deane JJ, at 211, 212.
32 It will be noted that the charge refers to both an interference and an
attempted interference with the administration of justice. There is very little authority on attempted contempt, which I will deal with separately at the end of my reasons.
33 It will also be noted that the form of interference or attempted
interference with the administration of justice is not particularised in the charge. However, it was not in contest that, as indicated by the "grounds", there were two forms for which the applicant was contending, proof of either of which would sustain the charge. One form was improper persuasion or improper attempted persuasion, or intimidation, of a witness in the proceedings in CIV 1661 of 2004. The other form was the witness' victimisation, or attempted victimisation, actual or foreshadowed, for his having given the evidence he had in that proceeding.
[2007] WASC 165
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34 However, senior counsel for Mrs Powell and Mr Hanly put to me
that there was no evidence from which it could be inferred there was a likelihood Dr Forward would be a witness in further proceedings in CIV 1661 of 2004, and this meant there could be no question of proof of a charge of improper persuasion or improper attempted persuasion, or intimidation of a witness in the proceedings in CIV 1661 of 2004. He had already provided evidence, albeit in interlocutory proceedings.
Senior counsel for Mrs Powell and Mr Hanly acknowledged that some of the issues to which the Forward affidavit of 9 October 2006 related were ones that might be expected to be ventilated in the final hearing in Mrs Powell's action. Indeed I note that there might, as a result of the appeal against the decision in Powell, Blaxell J (supra), be a further hearing on the application the subject of that decision. Dr Forward had already been called as a witness, of course, and examples of issues of continuing significance in some of his evidence can be found in at least par 5 of the affidavit.
36 However, senior counsel contended, where evidence had been given,
no question could arise of any form of contempt by improper persuasion or improper attempted persuasion, or intimidation, of the witness, absent proof to the requisite standard of some likelihood of further evidence to be given from that witness. The issues which that witness might address might be addressed only through other witnesses. There was no evidence, let alone proof to the requisite standard on any evidence, of some likelihood of further evidence to be given by Dr Forward.
37 I agree that there is no evidence in this case of any particular
likelihood of further evidence being given by Dr Forward in CIV 1661 of 2004. However, I consider there is, from the nature of his evidence in his affidavit, proof to the requisite standard that there is at least a possibility he will give further evidence. That is sufficient, in my view, to raise the issue of whether or not the conduct complained of has "as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice in a particular case", which must be made out to the required standard. See Resolute Ltd v Warnes [2000] WASCA 359, per Ipp J, Kennedy and Miller JJ agreeing, at [13], from which the quotation is taken (but with my emphasis), and to which I return below; and Re Coroner's Court of Western Australia; Ex parte Porteous [2002] WASCA 144, per Wheeler J, at [64], Wallwork J agreeing, and per Steytler J, at [43], [44].
[2007] WASC 165
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38 I note, before leaving this point, that there is no evidence in this case
of the effect of the 24 January 2007 letter on Dr Forward. On the authorities it is not necessary to show that any conduct has had any effect on the person to whom it is directed. It is the tendency of the conduct that is determinative: Re Coroner's Court (supra), per Steytler J, at [22].
Finally, it was admitted for Mrs Powell that she had caused or authorised the 24 January 2007 letter to be sent.
The applicable law
40 There appears to be no contest between the parties as to the general
principles applicable to the contempt charged. They are the ones relevant to a charge of conduct in approaching a witness. However, as I will indicate, extracting those principles is a task of some nicety.
41 Both counsel referred me to the widely quoted statement of general
principles from Resolute (supra) per Ipp J, Kennedy and Miller JJ
agreeing, at [13], as follows:"The principles to be applied, generally, to a contempt of the nature alleged were examined by Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 (at 27 - 30). This case turns on certain of those principles and I shall set out in summary form those that are presently relevant. In substance, save where otherwise indicated) these have been extracted from his Honour's exposition.
(a) The charge must be established beyond reasonable doubt. (b)
The claimant must prove, according to the criminal standard, that the published material has, as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice in a particular case (John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372; R v West Australian Newspapers Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16 WAR 518 at 533).
(c)
Because of its exceptional nature, this summary jurisdiction has always been regarded as one, which is to be exercised with great caution.
(d)
Intention to interfere with the due administration of justice is not necessary to constitute a contempt. Where,
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however, intent to interfere has been proved, this has
usually been sufficient to sustain a prosecution.
(e) The gravamen of the category of criminal contempt in which improper pressure is placed on a party to court proceedings through public dissemination of material is the tendency to deter the litigant, improperly, from obtaining curial vindication of its rights. Successful interference with a party's conduct of proceedings is not necessary for proof of liability for contempt by improper pressure. (f) It is an open question as to whether the tendency is to be measured against the capacity of the particular litigant involved to withstand pressure, or whether the court should have in contemplation some hypothetical litigant of 'ordinary' fortitude. (g) In punishing certain types of interference with litigants, the law distinguishes between proper and improper pressure."
42 That was a case involving alleged contempt by facsimile
correspondence with the solicitors for a litigant in incomplete litigation. The facsimile correspondence included indications by "CC" entries that the contents had been published to a wide range of others, and also included indications that there would be further publication. The case was approached as one involving allegations of contempt by communication with a party to pending litigation which referred to publication, actual and threatened, of the communications or their contents (see per Ipp J, at [20] and [43] – [46]).
43 It will be noted the present application is in relation to a witness, not a party; the case against the contemnors is put on victimisation as well as on improper persuasion; and the 24 January 2007 letter was not copied more widely than to the client, and in my view contained no threat, express or implied, that the communication the letter represented would be published. True it is that there was an indication that the "serious concern" or "concern" referred to in the letter might be taken to a disciplinary body for the witness' profession. However, that it seems to me raises a different set of considerations to those of publication more generally.
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44 However, it also seems to me that at least the "gravamen" referred to
by Ipp J in Resolute (supra) remains the same. Authority for that proposition is Re Coroner's Court (supra), which was a case concerning provision of a "chronology" prepared by one of the persons in those proceedings seeking to have particular findings made by the coroner concerning another person who would also be seeking to have the Coroner call witnesses. The "chronology", which the Coroner did not permit to be read from at a directions hearing before him, was given to certain journalists outside the hearing, and its contents became the subject of certain publications in the print media. In the course of their discussions of the law of contempt Wheeler J, with whose reasons and conclusions Wallwork J agreed, and Steytler J, both, it seems to me were principally concerned with contempt by publication. Both it seems to me put at the centre of the law of contempt, as the requirement that must be satisfied, what Wheeler J described when she said this (at [64], [65]):
"… it is desirable to consider the concept which lies at the heart of the law of contempt. In order to establish that a contempt has been committed, it must be proved beyond reasonable doubt that there has been conduct which poses a particular risk to the administration of justice. The risk may be described in a variety of slightly different ways but it is essentially the same risk which is being described. Contempt is conduct which:
• poses a 'real risk, as opposed to a remote possibility, that justice will be interfered with' (Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25 - 'the BLF case' – at 56 per Gibbs CJ, adopted by Mason CJ in Hinch v Attorney-General (Victoria) (1987) 164 CLR 15 - 'Hinch' - at 27); • has 'a real and definite tendency to prejudice or embarrass pending proceedings' (Hinch per Wilson J at 34, Toohey J at 70); • has a 'clear tendency to prejudice the due administration of justice' (Hinch per Deane J at 46 – 47).
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The ultimate question then is always whether the conduct, objectively, poses a real risk of interference with the administration of justice. …"
See also Steytler J, at [42], [43].
45 Wheeler J, at [77], Steytler J agreeing, at [45], said, in relation to the
view of the common law of contempt associated with Attorney-General v Times Newspapers Ltd [1974] AC 273 that it was (Wheeler J, at [75]) "inevitably" contempt for a publication to prejudge "any proceeding", that"
"It is easy enough to understand that the type of trial by newspaper which their Lordships discuss is socially undesirable, and I accept that the concept of 'public policy' in the law reflects the fact that the content of the law is, to a degree, shaped by a judicial conception of what may be seriously socially undesirable. However, so far as the law of contempt is concerned, I do not think that it is permissible to introduce a conception of public policy in this way and at this point. There are two competing public policy considerations which lie at the heart of the law of contempt. The first is the necessity of ensuring that the due administration of justice is not interfered with; the second is that of ensuring that freedom of speech is not interfered with to any greater extent than necessary. Those considerations have been balanced already in the formulation of the test for contempt as being conduct which has, objectively, a real and definite tendency to prejudice the administration of justice (and in Australia also by reference to a further balancing of the type adverted to by Jordan CJ in Ex parte Bread Manufacturers Ltd; re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249 – 250, discussed by the High Court in Hinch). If it is accepted that a particular type of conduct will often, or in many circumstances, not be able to be described as conduct with a real and definite tendency to prejudice the administration of justice, then it does not seem to me to be open in effect to alter the test for contempt in a particular type of case by deeming conduct which may well not fall within it, to fall within it."
46 Such a balancing would not it seems to me easily account for the
formulation in its application to cases not involving publication. However, that does not, in my view of Re Coroner's Court (supra), mean the central issue is not as described by Wheeler J and Steytler J.
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I note in particular that Steytler J reviews cases concerning private communications. These included (at [14]) Smith v Lakeman (1856) 26 LJ (NS) Ch 305, involving a letter to a defendant in pending proceedings which said that, if the matter should reach judgment, the defendant would be indicted for "swindling, perjury, and forgery, and thus bring disgrace on … [his] family, and ruin forever the prospects of … [his] gallant son"; (at [26]) Re Ludlow's Charities; Mr Lechmere Charlton's case (1837) 2 My & Cr 316; (1837) 40 ER 661, involving a letter to a Master and the Lord Chancellor on a pending suit; and (at [27]) Martin's Case (1747) 2 Russ and M 674; 39 ER 551, involving a defendant in a Chancery suit writing to Hardwick LC, enclosing a £20 banknote and suggesting it be applied and distributed "for the relief of such of the poor prisoners in the Fleet prison as are the most proper objects of charity".
48 Further, Steytler J referred without disapproval to views expressed in
an authority where there was conduct in relation to a witness who had given evidence before a court in proceedings that had concluded against a trade union of which he was treasurer and a branch delegate. At a subsequent branch meeting resolutions were passed purporting to deprive him of those two offices. That authority was Attorney-General v Butterworth [1963] 1 QB 696 (CA), recently referred to in X v Australian Prudential Regulation Authority [2007] HCA 4, per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ, particularly at [54] –
[57], quoting from Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245 which refers to that authority.
In Coroner's Court (supra), Steytler J said this, at [40], of
Butterworth (supra) and Lane (supra):
"In [Butterworth (supra)] (one of the two cases referred to in Lane, at 258, in support of the proposition that the intention with which an act is done is relevant and sometimes important), Donovan LJ had said (at 726) that an intention to interfere with the proper administration of justice was not an essential ingredient of the offence of contempt of Court but that, in that case, it was necessary, in order to determine the likely effect of what the respondents had done, to inquire into their motives. Consequently, Donovan LJ seems there to have regarded the relevance of intention as being that it is a factor to be taken into account in determining what was the likely effect of the conduct in question."
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50 The matter addressed in Butterworth and Lane appears to be of particular relevance in relation to an allegation of contempt based on disciplinary proceedings before a body regulating a profession. Just such an allegation was involved in Dentice v Valuers Registration Board [1992] 1 NZLR 720, Eichelbaum J. That authority was considered by reference to Butterworth and Lane in Australian Prudential Regulation Authority (supra).
51 Australian Prudential Regulation Authority was concerned with whether or not APRA should be restrained from acting on a preliminary view that it should disqualify person from acting as senior manager or agent in Australia of a foreign general insurance entity in part at least because of the evidence he had given at the HIH Royal Commission. The case for the restraint rested on Royal Commissions Act 1902 (Cth), s 6M, which prohibited causing a person inter alia any disadvantage "for or on account of" evidence given before a royal commission. In their joint judgment, Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ, at [54] – [57], said that assistance in construing the quoted words could be derived from the authorities on contempt of Butterworth (supra) and Lane (supra), as follows:
"Assistance in construing those words in s 6M is provided by what was said in this court in a contempt case, [Lane]. That case concerned alleged contempt of the Supreme Court by reason of a failure to produce documents in answer to a subpoena after legal advice that the documents were outside the scope of the subpoena. This court held that there had been no contempt. In the joint judgment of Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ, reference was made to [Butterworth] and to the earlier decision in Rowden v Universities Co-operative Assn Ltd [(1881) 71 LT Jo 373]. Their Honours continued [in Lane, at 258]
'In those cases, the purpose, intention or motive of the act was to do the very thing that would interfere with the course of justice – to keep the witness out of the way or to victimize the witness. The words 'purpose', 'motive', 'object' and 'intention' are used interchangeably in the judgments in Attorney-General v Butterworth and it is quite unnecessary for present purposes to distinguish between them; we shall use the word 'intention' to cover motive as well.'
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Their Honours then observed that an intention to interfere with the administration of justice was not necessary to constitute a contempt, the critical question being whether the act was likely to have that effect; nevertheless, the intention with which the act was done was said to be relevant and sometimes important. That certainly must be so where, as here, the court is concerned with specific criminal offences created by statute in the terms of ss 6M and 6O and with fault elements indicated by the Criminal Code.
What is of critical importance for the present case is the further statement in the joint judgment in [Lane at 258 - 259]
'A lawful act may constitute a contempt if done with the intention of interfering with the course of justice, but will not become a contempt simply because it was done to achieve some purpose or further some interest of the person doing it. For one person to advise another who has been served with a subpoena to refrain from producing a document which the person giving the advice rightly believes falls outside the description of documents contained in the subpoena and therefore need not be produced does not become a contempt because the person giving the advice wishes to achieve some lawful purpose of his own by ensuring that the documents are not produced. [Emphasis added]'
An example of the distinction so drawn in [Lane] is provided by the decision of Eichelbaum CJ in [Dentice (supra)]. The applicants were valuers who had prepared reports for use in an arbitration. In a subsequent proceeding before a statutory body, the Valuers Registration Board, they were charged with incompetent conduct. The applicants complained in the High Court that the disciplinary proceedings were an attempt to punish them for the evidence given by them at the arbitration and the disciplinary proceedings should be quashed as constituting a contempt of court. Eichelbaum CJ concluded [at 727]:
'Any censure imposed by the board would be for providing evidence that fell below the minimum acceptable standards imposed by the profession and not for the mere fact of giving evidence itself …
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There is no evidence that the complaint was motivated by dissatisfaction over the arbitrator’s award, but even if it had been, that would not suffice to pre-empt the statutory investigation which the board must carry out when the complaint procedure has reached this stage, except where satisfied there is no reasonable ground for the complaint.'"
52 I draw from Butterworth (supra), Lane (supra), Dentice (supra), Coroner's Court (supra) and APRA (supra) that conduct in a private approach to a witness which might not otherwise have the tendency required for contempt of court might be seen as a contempt if that conduct is accompanied by the relevant intention.
53 Finally, in relation to cases of victimisation, I note there is authority
that there is a requirement for the prosecution to prove there is a likelihood of publicity, whether directly of the contempt itself or through the victim: see Attorney-General v Butterworth (supra), per Donovan LJ, at 726. This is on the basis, it would seem, that the rationale of the offence in that form is the conduct making or tending to make witnesses generally, not simply this particular witness, less willing to come forward to give evidence: see Miller, C J Contempt of Court 3rd ed Oxford, Oxford UP, 2000, at [11.10]; Sir David Eady and Professor A T H Smith, eds, Arlidge, Eady & Smith on Contempt, 3rd ed, London, Sweet & Maxwell, 2005 at [11-213].
54 However, the view is expressed in Chapman v Honig [1963] 2 QB 502, per Denning MR, at 511 – 512, and Davies LJ, at 526, Pearson LJ dissenting on this point, at 518, that this is not the law. It is enough the conduct is intended to punish the witness for giving the evidence the witness did. While the law is not regarded as settled on the point, this appears to be the preferred view of it: Miller (supra), at [11.11]; and Arlidge et al, at [11-215].
55 I turn now to consider the application of these principles in this case.
For the reasons previously indicated I need to distinguish between the allegation of contempt in relation to any future evidence this witness might give in the present case, and the allegation of contempt in relation to any evidence this witness might give in future cases.
Application of the principles to this case: tendency to interfere with the
administration of justice in the present proceedings
I have already indicated that there is the possibility Dr Forward will give evidence in this case in the future.
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57 In considering whether or not, in relation to the present case, the
conduct in question poses a "real risk" that justice will be interfered with, has a "real and definite tendency to prejudice or embarrass pending proceedings" or has a "clear tendency to prejudice the due administration of justice" (Coroner's Court (supra), per Wheeler J, at [64]), I need to note the authority that a private approach to a witness calculated (in the sense of having the tendency called for by the authorities) to cause the witness to change their evidence may not of itself be contempt. The example often given is persuasion "by reasoned argument supported by material facts and documents … to dissuade [the witness] from committing perjury and to persuade him to retract lies and tell the truth": R v Kellett [1976] 1 QB 372, per Stephenson for the Court of Appeal, at 386. This authority concerned the requirements for the common law offence of attempting to pervert the course of justice, but it has been cited as applicable in this respect to contempt: see R v McLachlan [1998] 2 VR 55, Byrne J, at 60 – 61, quoting from R v Mathews [1993] 2 Qd R 316, CA, Derrington J, at 321; see also Aldridge et al (supra), at [11-228]. The explanation of this appears to be that the conduct is not "calculated to interfere with the freedom of the witness’s evidence": Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322, Brereton J, at [25].
58 It seems to me that the 24 January 2007 letter, considered for its
tendency to affect the freedom of Dr Forward's evidence in the present proceedings, puts to him the need for him to consider whether or not he had direct knowledge (variously described as "your own knowledge", "direct personal knowledge", "direct knowledge", "direct personal information" or "personal or direct knowledge") of the matters the letter addresses, as opposed to knowledge based on what he has been told by others, including the drafter of the affidavit. This need is in relation to the fact of Mrs Powell's "serious concern" or "concern" about his affidavit, and that she is "minded to refer your affidavit to the [Medical Board]". The letter calls on him to answer the letter within the 14 days it refers to, by reference to the conclusions he has drawn from that consideration, failing which Mrs Powell may proceed to make any decision to refer the matter to the Medical Board without taking account of any such conclusions.
59 I consider that the letter indicates, if not as clearly as one might have
wished, that the basis for the "serious concern" or "concern" lies in whether or not the affidavit in relation to the matters the letter addresses deposes to had a direct knowledge of those matters that in fact the deponent did not possess.
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60 It is true, as counsel for Mrs In de Braekt put to me, that the letter
does not indicate in what way that basis is considered by Mrs Powell, or the author of the letter, to be relevant to the Medical Board. That does not, however, indicate to me that they did not consider that basis was so relevant; indeed the contrary appears to be the case. If the matter were not relevant to the Medical Board, and Mrs Powell or the author of the letter was aware that was so, then it might be the letter was an attempt to act in terrorem to remove Dr Forward's freedom of evidence: compare the threat of disciplinary proceedings against a barrister who had initiated a private prosecution in R v Martin, The Times, April 12, 1986, in Arlidge et al (supra), at [11-284], [11-285].
61 It is also true, as counsel for Mrs In de Braekt also put to me, that the
matter of whether or not Dr Forward had direct knowledge of the matters in question could have been raised by way of objection or otherwise by counsel for Mrs Powell at the interlocutory hearing before Blaxell J. There was no reference to any such objection or other raising of the matter by counsel for Mrs Powell. Indeed, his Honour had himself raised the matter of hearsay in the Forward affidavit of 9 October 2006, including in particular par 6, in the respect (that Mrs In de Braekt's daughter and her second husband had treated Mrs In de Braekt in particular ways) raised in the 24 January letter (TS 36 - TS 37). His Honour also noted that no objection had been made to the material before him (TS 37).
62 Of course, O 37 r 6(2) allows for hearsay evidence in interlocutory
proceedings. Although it is not necessary for me to decide the matter, I should indicate my view that the proceedings before Blaxell J in Powell (supra) were of that character. See the character of the test for demonstration of a caveatable interest sufficient to avoid the removal or lapsing of a caveat discussed in Powell, Blaxell J, at [11] – [14], and the references there to Custom Credit Corporation Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42, per Owen J, at 48 ("serious question to be tried"), and especially at 50, where his Honour said (as quoted in Powell, Blaxell J, at [14]):
"… it seems to me that interlocutory removal of a caveat where an arguable case as to the existence of the caveatable interest has been demonstrated, will be unusual."
63 However, under O 37 r 6(2) the source of the information and belief
must be stated. As counsel for Mrs In de Braekt noted when Blaxell J raised the point, in at least par 6 of the Forward affidavit of 9 October 2006 the matter of source appears to have been addressed (TS 37).
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64 Counsel for Mrs In de Braekt appears to have invited me to infer,
from the lack of any indication as to the way in which the basis for Mrs Powell's concerns were relevant to the Medical Board, and from the failure to object to or otherwise raise the matter, that in fact the 24 January 2007 letter was not a genuine inquiry into the bases for the matters in the Forward affidavit of 9 October 2006 referred to. Rather, the letter was calculated to inhibit Dr Forward in his future testimony, rather than have Dr Forward exercise his freedom of evidence while apprised of the consequences of testifying to direct knowledge he did not possess. This inference was strengthened by the delay in making the purported inquiry – some three and a half months after the hearing of 20 October 2006.
65 There is authority that conduct directing the witness how to testify or
not to testify, rather than having the witness consider whether or not he or she proposes to provide an accurate or truthful account, could be contempt, whether or not there was an accompanying element of threat, intimidation, promise, or reward to have the witness do as he or she was told. See R v Toney [1993] 2 All ER 409 (CA), referred to in this connection in Farahbakht (supra), Brereton J, at [29].
66 I further note, in the context of the common law offence of
attempting to pervert the course of justice, Meissner v The Queen (1994) 184 CLR 132, per Brennan, Toohey and McHugh J, at 143, which, although directed at conduct that had the tendency to cause an accused in criminal proceedings to plead guilty, appears to hold for the offence of contempt in relation to approaches to witnesses also:
"It will often be difficult to determine whether conduct that falls short that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused's free choice to plead guilty or not guilty. Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs."
I further note in Meissner Dawson J, at 158 – 159:
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"[Kellett (supra)] was applied by the Court of Appeal in New Zealand in Court of Appeal in New Zealand in R v Taffs [[1991] 1 NZLR 69], Cooke P expressing the ratio of the former case as being that [R v Taffs [1991] 1 NZLR 69 at 72]:
'there may be an intention to pervert or defeat the course of justice if, once legal proceedings are in motion, they are not allowed to flow unobstructed and undiverted: perjury should be exposed and truth ascertained only by examination and cross-examination of witnesses in open Court, and justice should be administered in the way which is ordinarily pursued: it is lawful to try to dissuade a witness from committing perjury by reasoned arguments supported by material facts and documents, but threats or other improper pressure take the interference across the line and into criminality.'
And in R v Silverman [(1908) 14 CCC 79], a decision of the Ontario Court of Appeal cited in [Kellett], MacLaren JA said [R v Silverman (1908) 14 CCC 79 at 83]:
'The end does not justify the means. Even the most desirable end cannot justify the employment of corrupt means. The fountain of justice should be kept pure and not be corrupted at its source.'
Where improper means are used, the fact that the defendant believed the intended evidence to be false is no answer to a charge of attempting to pervert the course of justice. This is only a material issue 'if the defendant had used no threat or other improper means of dissuasion' [R v Kellett [1976] QB 372 at 393. See also Hatty v Pilkinton [No 2] (1992) 35 FCR 433 at 439-440.].
The persuasion of an accused person to plead guilty may not be an end which is in itself improper even where that person is not guilty or believes himself to be so. Where, however, the means by which the persuasion is attempted extend beyond reasoning with reference to the consequences, legal or personal, of pleading otherwise and amount to improper pressure, then the offence of attempting to pervert the course of justice is committed. The use of improper means hinders or prevents the exercise of a free choice by the accused in deciding upon his
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plea. That is a corruption of the legal process which denies to the court knowledge of the true circumstances in which the plea is made."
68 I consider that I should not draw the inference counsel for
Mrs In de Braekt invited me to draw. I do not consider that I should conclude that the inference is the only reasonable inference to draw, which is the way in which I must approach the matter, on all of the evidence: see R v Hillier [2007] HCA 13; 233 ALR 634.
69 It seems to me that the lack of any specification of the basis upon
which the "serious concern" or "concern" in the 24 January 2007 was understood by those responsible for the letter to be of interest to the Medical Board must be understood in the context of the letter as a whole, which appears to be directed at the question I referred to previously, of whether or not the affidavit asserted facts as directly known to Dr Forward information as to which he had in fact been provided with by others. The matter of the failure to object or otherwise act with respect to the matter at the hearing, while closer to the line, might reasonably have gone to a question of forensic tactics at the time, while a delay in raising the matter of the order involved here is in my view too equivocal to have me draw the requisite inference. Nor it seems to me does the combination of these matters cause me to draw the requisite inference, where the letter's tone and content is that of inquiry as much as it is of warning.
70 I note at this point that at the hearing before me counsel for
Mrs In de Braekt put to me that that the failure to object raised an estoppel or similar preclusion against the contemnors which would prevent them from seeking to rely on such matters as they had in these proceedings. The form of the contention was not altogether clear, however. The contention had not in my view been clearly raised in counsel's written submissions. I gave the parties three working days following the hearing to address supplementary submissions on the principle as counsel for Mrs In de Braekt contended for it, and its relevance to these proceedings. In the event I received only submissions from counsel for Mrs In de Braekt, in which she put forward two contentions.
71 One contention was that estoppel, by conduct, issue or otherwise,
was capable of application as she had contended at the hearing. That contention was elaborated upon as being that the contemnors were precluded by their conduct from invoking in explanation of the letter considerations of the admissibility or inadmissibility of the material in it. She cited Henderson v Henderson (1843) 3 Hare 100, per Wigram VC, at
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115 (67 ER 313, at 319). That authority is typically cited both in the context of issue estoppel and res judicata, and the passage quoted in the submissions of counsel for Mr In de Braekt in her supplementary written submissions is quoted in the latter respect in Heydon, J D Cross on Evidence 7th Aust ed Sydney, Butterworths, 2004, at [5170].
72 However, I note there is clear authority that neither issue estoppel
nor res judicata applies in criminal proceedings: Rogers v The Queen (1994) 181 CLR 251, discussed in The Hon Justice Ormiston, "Abuse of Process, Anshun and the Criminal Law – a Commentary" (1997) 71 ALJ 942.
73 In any event it is not clear to me that either issue estoppel or res judicata is in point in these proceedings, so far as the contemnors are concerned. The matter of the admissibility of the statements in the Forward affidavit of 9 October 2006 in the respects the subject of the 24 January 2007 letter was relevant to the caveat proceedings before Blaxell J. However, as I have noted previously, in Powell, Blaxell J (supra), did not rely on the Forward affidavit of 9 October 2006 in any of those respects. It is therefore difficult for me to see how an issue estoppel or res judicata could arise in relation to those respects. Nor is it clear to me how any other form of estoppel could have arisen out of what at most was a forensic decision in the context of such proceedings.
74 However, counsel for Mrs In de Braekt put her contention in another
way. It was that the failure to object to the content of the Forward affidavit of 9 October 2006 at the caveat proceedings before Blaxell J removed the possibility of any inference being drawn favourable to the innocence of the contemnors.
75 In my view this form of the contention is at best a restatement of the
argument with respect to the relevance of the failure to object to the issue of the genuineness of the concerns expressed in the 24 January 2007 letter with which I have previously dealt. To the extent the contention is a proposition that a failure to object to the admissibility of the Forward affidavit of 9 October 2006 in the respects the subject of the 24 January 2007 letter means no inferences favourable to the contemnors are cable of being drawn, there is no support for such a proposition I could find in the only authority she cited for the proposition, Shepherd v The Queen (1990) 170 CLR 573. Nor does the proposition commend itself to me otherwise. Whether there is an evidentiary base for the drawing of reasonable inferences consistent with the innocence of the contemnors depends upon the evidence that might be referred to for that purpose
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(considered of course in the context of all of the other evidence), and the
inference contended for.76 Counsel for Mrs In de Braekt sought to have me approach both of
her contentions on the basis the contempt proceedings were "in effect part of the continuum of the caveat removal and compensation proceedings", such that the law relating to appeals applied. Reference was made to authority on the impermissibility of raising on an appeal a point not raised in the proceedings below, including Geelong Building Society v Encel [1996] 1 VR 594, per Tadgell J, Ormiston and Ashley JJ agreeing, at 604 – 605.
77 However, it would appear to me to be inconsistent with the nature of
contempt proceedings to treat them in the way contended for. They are criminal, not civil, proceedings in substance. They are not concerned with the review of determinations in the proceedings to which (in a case like this one, in part) they relate.
78 I consider that it follows from the line of analysis I have been
pursuing that I am unable to be satisfied beyond a reasonable doubt that Mrs Powell or Mr Hanly intended to intimidate Dr Forward. There do not appear to be any reasons to consider that matters of intention are any less relevant to a case of contempt for an approach to a witness in incomplete proceedings than in other proceedings: see Butterworth (supra), per Lord Denning MR, at 723. Here, in addition to the matters which I have referred to in relation to the genuineness or otherwise of the 24 January 2007 letter, there is the matter to which I earlier referred, of the lack of evidence as to the likelihood of Dr Forward giving further evidence in these proceedings in relation to the matters in the letter. While, as I have indicated, that does not prevent a finding of contempt in the present respect, the lack of such evidence is relevant to whether or not there was an intention to intimidate a witness in relation to his future evidence.
79 However, I should also note that the letter of 24 January 2007 goes
beyond seeking to persuade Dr Forward by reasoned arguments "with reference to the consequences, legal or personal, of [testifying] otherwise". It provides for Mrs Powell, presumably with the assistance of her solicitor, to evaluate whatever Dr Forward provides in response to the letter with a view to considering whether or not to refer the Forward affidavit of 9 October 2006 to the Medical Board. While there is a reasonable inference open on the evidence that the "serious concern" or the "concern" the letter refers to is genuine, and there is also a reasonable inference so open that there was no intention to intimidate Dr Forward in
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relation to any future evidence of his, it seems to me that the letter has a tendency of the sort required by the authorities. That tendency in this case is to bend the evidence Dr Forward might be otherwise inclined to present. That bending would be in ways addressed to neutralising the basis for the "serious concern" or the "concern" I have described. It seems to me that the letter therefore amounts to "improper pressure" within the meaning of Meissner (supra).
80 It is true that the directions in which the evidence might bend are not
clear from the letter. There is a contrast with a case where a party indicates to a witness that there will be a referral if evidence is given, or not given, along particular lines. However, that does not appear to me to be decisive. It is enough that the basis for the concern is not raised by reference to the possibility of referral of the affidavit by others, but by reference to the possibility of referral by a party to the proceedings who is prepared to await, for a time, an explanation for the conduct in question. This is only in part an appeal to the best interests of Dr Forward in providing accurate evidence. It is also an indication that at the least Mrs Powell will be the judge of those best interests and will be prepared to act on her judgment.
81 It was conceded by senior counsel for Mrs Powell that a referral by a
party would often be a contempt. I understood this to refer to a referral without offering either the opportunity described in the 24 January 2007 letter, or a prior indication that further evidence would need to be given along particular lines before a referral occurred. A referral by a party in the course of proceedings, in relation to a witness who had given evidence and who might give evidence again, would it seems to me be calculated to interfere with the administration of justice. The referral would be so calculated because of its tendency to affect the witness’s freedom of evidence.
82 On the view I have described, the provision of the opportunity in the
24 January 2007 letter, and the nature of the pressure I have found it exerted, would not it seems to me go to more than whether or not a penalty for the contempt would be appropriate, and, if so, the nature and severity of the penalty.
83 I do not need to consider whether or not a referral, by a person not a
party to the proceedings, in relation to the evidence of a witness in proceedings not yet concluded, where the witness might give evidence again, could be contempt. Nor do I need to consider whether or not the
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conduct of disciplinary proceedings on such a referral, or referral by a
party, could be contempt. However, I reach a related matter next.
Application of the principles to this case: tendency to interfere with the
administration of justice in other cases
84 Here I consider the alternative basis for the charge, resting on
interference with the administration of justice, not in relation to the
present case, but in relation to other cases.85 As I have indicated the authorities appear to indicate that at least in
some cases it will be necessary or appropriate to consider the intention of contemnor. The basis for so doing, in relation to determining whether or not there is a contempt, is not altogether clear: see Coroner's Court (supra), per Wheeler J, at [98]; and see Arlidge et al (supra), at [11-208].
86 However, it would seem that, from the way in which Butterworth (supra) has been referred to in the Australian authorities to which I referred above, it will be in a case not raising a question of the effect on the administration of justice in this particular case that intention will be particularly important.
87 Here I note what was said in Butterworth, per Donovan LJ, both on the relevance of intention, and the nature of the intention that is relevant, at 725 and 726:
"I return to the finding in the present case that none of the respondents had any future proceedings in mind or any intention to interfere with the course of justice. I regard that state of affairs as immaterial. The question is whether the respondents' action was calculated so as to interfere, and this involves a consideration not of their state of mind on this particular point but of the inherent nature of their act: see as to this the decision in Reg v Oldhams Press Ltd, Ex parte Attorney General [[1957] 1 QB 73]. … It is enough if the action complained of is inherently likely so to interfere. A newspaper article accusing a man of crime after proceedings have been begun and before his trial plainly answers that description. But there may be other actions where the likely effect is not self-evident, and further inquiry will have to be made. The present case is an instance. The respondents were within their legal rights in seeking to relieve Greenlees from his honorary posts. But if the object of doing so was not merely to exercise that right for the good of the branch but to punish him for the evidence which he gave
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before the Restrictive Practices Court, and if the taking of such revenge was calculated to interfere with the administration of justice, then it will be no answer for the respondents to say that, while intending to punish Greenlees, still they had no intention of interfering with the administration of justice. Thus far the case is no different from Reg v Oldhams Press Ltd, Ex parte Attorney-General … But where it differs is that in order to determine the likely effect what the respondents did one has to inquire into their motives."
88 In this case, it is seems to me that, as with the action taken by the
general meeting in Butterworth, the effect of the 24 January 2007 letter on other cases in which Dr Forward might testify is not "self-evident" to me.
89 This would take me to the question of intention. Where there is no
direct evidence of intention, it is necessary to see if an intention of the sort referred to in Butterworth should be inferred, as the only reasonable inference to be drawn. In considering that question, I should proceed on all of the evidence, as confirmed most recently in Hillier (supra), per Gummow, Hayne and Crennan JJ, Gleeson CJ agreeing, at [46] – [48], a portion of the decision quoted in State of Western Australia v Montani [2007] WASC 110, McKechnie J, at [5].
90 The circumstances relevant for this purpose include the 24 January
2007 letter itself. However, I am unable to infer from that letter, as the only reasonable inference to be drawn from that circumstance, that Mrs Powell, as the person who caused or authorised the letter to be sent, and the author of the letter, as the person who advised on its contents, intended to punish Dr Forward for his affidavit by calling on him to account for it as she did, however unwise the letter might have been. The letter's tone and content do not appear to me to be intemperate, hectoring or otherwise suggestive of an intention to punish Dr Forward for his affidavit.
91 It is true the letter did not indicate to Dr Forward that he should, or
might wish, to obtain professional advice on the matters the letter raised. It was put to me by counsel for Mrs In de Braekt that I should consider such an absence a matter of conduct unbecoming in a letter from a solicitor, although counsel was unable to direct me to any authority, in the Professional Conduct Rules or otherwise, which would support such a characterisation.
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92 Similarly, it was put to me that I should note that the letter did not
indicate to Dr Forward he was under no obligation to respond. It was put to me that such a failure was inconsistent with professional etiquette in letters from a solicitor of this sort. However, no source was cited to me for that proposition, and it does not otherwise commend itself to me.
93 It may be regrettable when letters from solicitors are worded in
strong terms, although the circumstances in which the letter was written would of course also need to be considered. I would accept that this is a strongly worded letter and I would also accept that the circumstances might not obviously warrant such strong wording. However, it does not seem to me that the strength of the terms here, even when considered with the lack of the further material to which counsel for Mrs In de Braekt referred, would make the inference she contended for the only reasonable inference open.
94 That does not conclude the inquiry, however, as Hillier (supra) indicates. Counsel for Mrs In de Braekt referred me to the following factors which she said, singly or in combination with one another, indicated that the only reasonable inference to be drawn was that Mrs Powell and the author of the letter intended to punish Dr Forward. Those factors were:
• the lack of any indication as to the way in which the basis for Mrs Powell's concerns were relevant to the Medical Board; • the failure to object to or otherwise raise the matter referred to in the 24 January 2007 letter at the hearing of 20 October 2006; and • the delay in making the purported inquiry of Dr Forward – some three and a half months after the hearing of 20 October 2006.
95 I have previously referred to those factors in connection with the
question whether or not the only reasonable inference on all of the evidence was the "serious concern" (or the "concern") in the 24 January 2007 letter was not genuine. For the same reasons as there, I am unable to draw from these factors, singly or in combination, when the tone and content of the 24 January 2007 letter are considered, that the only reasonable inference as to intention is that contended for.
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96 Therefore, if there were no question here of Dr Forward giving
evidence in these proceedings, or they had concluded, I would not find
Mrs Powell and Mr Hanly guilty of contempt.
Attempted contempt
As I indicated, the charge refers both to an interference and to an attempted interference with the administration of justice.
98 There is very little authority on the matter of attempted contempt.
Indeed, there has been some question as to whether there is such a common law offence: see Arlidge et al (supra), at [11-16] – [11-20] (discussing English authority).
99 A further question arises, it seems to me, under the law of this State,
which preserves the common law of contempt. The relevant statutory
provision, Criminal Code Compilation Act 1913 (WA), s 7, is as follows:"Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as contempt of court; but so that a person cannot be so punished, and also punished under the provisions of the Code for the same act or omission."
100 It is not altogether clear to me that the offence of attempted contempt
is a part of the law of "the offence commonly known as contempt of
court".101 However, it would appear, from the discussion in the English
authorities in the paragraphs from Arlidge et al (supra), and from Harkianakis v Skalkos (1997) 42 NSWLR 22, that there is such a common law offence. Further, it would seem there is some indication that that offence may be part of the law of this State.
In Harkianakis (supra), Mason P, at 28, said this:
"Where however intent to interfere has been proved, this has usually been sufficient to sustain a prosecution: see, eg, Smith v Lakeman (1856) 26 LJ (NS) Ch 305; Ex parte Bread Manufacturers; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 248-249; 54 WN (NSW) 98 at 99; Hinch [Hinch v Attorney-General (Vic) (1987) 164 CLR 15, (at 43); cf Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245 at 258. It is not self-evident why this is so. Two possible explanations are that the court is
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applying the principle that a person who does an act with such intent is admitting a belief that he or she has a reasonable chance of success, with this admission being used as evidence of the fact (Attorney-General v Hislop [1991] 1 QB 514 at 535, per McCowan LJ. As to the general principle, see Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641 at 657); or that such a case involves an inchoate offence in the nature of attempt, where intent plus preparatory acts will be sufficient to sustain the charge."
I note that this account in this respect was referred to without disapproval in Re Coroner's Court (supra), per Wheeler J, at [98].
104 In any event, the matter of attempted contempt was raised in the
charge, as I have indicated, and no question was raised in the hearing
before me that there was no such offence in the law of this State.
Therefore I will consider the possible application of attempted contempt in this case.
106 It appears to me that such an offence requires proof beyond a
reasonable doubt of the matters addressed in Harkianakis (supra), namely, an "intent" (to interfere with the administration of justice), and "preparatory acts".
107 In this case, it is not clear to me that the 24 January 2007 letter was a
"preparatory act". While the letter foreshadowed a reference to the Medical Board, it is not clear to me beyond a reasonable doubt that, on the terms of the letter, this was a step as part of a plan to make the reference regardless of what Dr Forward did or did not do. Nor do the other circumstances to which I earlier referred in relation to the genuineness or otherwise of the letter's contents cause me to come to a different conclusion.
108 In any event, it is not clear to me beyond a reasonable doubt that
there was an intention to interfere with the administration of justice in this case, for the reasons previously rehearsed in relation to the matter of whether or not there was an intention to punish Dr Forward for his evidence. At most there was evidence on which I am able to find beyond a reasonable doubt an intention, subject to what Dr Forward did or did not do, to endeavour to procure a review of the Forward affidavit of 9 October 2006 by the Medical Board. On the authority of Dentice (supra), such a review could not of itself be seen to be a contempt of court, at least if it occurred after the completion of proceedings in this action. I do not
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consider I am in a position to find beyond a reasonable doubt that the only reasonable inference was that Mrs Powell or Mr Hanly had the intention of procuring such a review so that it occurred before the completion of proceedings in this action.
Whether or not the jurisdiction to punish for contempt should be exercised
in this case
109 I have concluded there was a contempt of court in the letter of
24 January 2007 in the respect I identified. However, that does not mean the court must punish the contemnor. There remains a discretion not to punish, to the exercise of which the matter of the intention of the contemnor is of significance, as Re Coroner's Court (supra), per Wheeler JA, at [97], indicates, in relation to one of the ways on the Australian authorities intention is relevant to contempt:
"Intention appears, in the Australian authorities, potentially to have relevance at two points. The majority of the references to intention as being 'relevant' can be traced back to John Fairfax & Sons v McRae & Ors (1955) 93 CLR 351 at 371. If one reads the whole of the passages at 370 – 371 of that case, it seems to me to be clear that the court is not discussing the question of what technically constitutes a contempt, but in what circumstances it is appropriate for the court to exercise its summary jurisdiction to punish for contempt. The discussion in that case seems to assume that intention will not be relevant to the question of whether a contempt has been committed, but will be a relevant factor for the court in determining whether to exercise its summary jurisdiction to punish for contempt."
110 The passage to which Wheeler J appears to be referring from John Fairfax & Sons v McRae & Ors (1955) 93 CLR 351 is that in the judgment of Dixon CJ, Fullagar, Kitto and Taylor JJ, at 370 – 371, as follows:
"We have expressed our opinion that the scope of the summary jurisdiction to punish for contempt is wide, and extends to the punishment of contempts of any court, and we have referred to its history. Its practical justification lies in the fact that in general 'the undoubted possible recourse to indictment or criminal information is too dilatory and too inconvenient to afford any satisfactory remedy' (per Wills J in R v Davies [[1906] 1 KB 32, at p. 41], citing R v Almon [(1765) Wilm 243, at p 256 [97 ER 94, at p 100]]). Because it is founded on the
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elementary necessities of justice, there must be no hesitation to exercise it, even to the point of great severity, whenever any act is done which is really calculated to embarrass the normal administration of justice. We are in complete agreement with Owen J when he says, in effect, that it would be a disgraceful thing if 'trial by newspaper' were allowed to supersede, or to influence, the ordinary process of the courts [Ex parte McRae; Re John Fairfax & Sons Pty Ltd (1954) 54 SR (NSW) 165; at p 177; 71 WN 113, at p 122]. Perhaps there has been in the past too little vigilance on the part of the Crown for the vindication of this principle. On the other hand, because of its exceptional nature, this summary jurisdiction has always been regarded as one which is to be exercised with great caution, and, in this particular class of case, to be exercised only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case. A penalty will not be imposed in its exercise 'unless the thing done is of such a nature as to require the arbitrary and summary interference of the court in order to enable justice to be duly and properly administered without any interruption or interference' – per Cotton LJ in Hunt v Clarke [(1889) 58 LJ (QB) 490], at p 493, quoted by Lord Russell CJ in Reg v Payne [(1896) 1 QB 577], at p 581. Sometimes the court may think that, technically speaking, a contempt has been committed, but that, because the tendency to embarrass is slight, or because of special circumstances, it ought to refuse to exercise its summary jurisdiction. There may be occasions when it will be material to remember that there may be attempts to abuse the jurisdiction. There have been occasions where summary proceedings for contempt have been commenced, or threatened, not with the real object of ensuring the impartial administration of justice, but solely for the purpose of stopping public comment on, or even public inquiry into, a matter of public importance. A court possessing the summary jurisdiction will not allow itself to be made the instrument for effecting such a purpose."
111 In my view that body of authority requires me to consider, taking
account of the nature of the tendency to interfere with the administration of justice, and the intention of the contemnors, amongst other matters, whether or not this is a case where the Court should not exercise its "summary jurisdiction" to punish for contempt. That is the jurisdiction
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invoked in this case: see Law Reform Commission of Western Australia
(supra), at 3.112 There is authority that the law of contempt is more stringent in
relation to the protection of witnesses than the protection of parties: see Kellett (supra), at 390; McLachlan (supra), Byrne J, at 62. However, that does not appear to mean that contempt in the form of conduct in relation to a witness in incomplete proceedings should be treated differently from other contempts for present purposes.
113 In relation to the nature of the contempt in relation to Dr Forward, I
note that the form of the pressure on him, being the tone and content of the letter of 24 January 2007, including the opportunity it provided him to address the "serious concern" or the "concern" of Mrs Powell, do not in my view represent a form of interference as serious as a direct indication that absent a change in his evidence there would be a referral to the Medical Board. This is not to understate the stress and inconvenience that a request for information of a medical practitioner who had given evidence, couched as this request was, would cause that practitioner. However, it is to indicate that contempt is to vindicate the interests of the administration of justice, not (directly) the concerns of a witness to whom an approach has been made.
114 In relation to the intention of Mrs Powell and Mr Hanly on the
evidence before me, I refer to my previous discussion of the genuineness or otherwise of the letter, and any intention to intimidate or punish Dr Forward.
115 I have considered on balance, taking the two factors I have described
into particular account, that in the exercise of my discretion it would not be appropriate to punish Mrs Powell or Mr Hanly for the contempt I have found here.
Conclusion and orders
It follows I would dismiss both motions for contempt, but on the basis just described.
In view of that, I conclude there is not a sufficient basis for the other orders the applicant seeks.
I will hear from the parties as to the orders I should make.
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