Powell v In De Braekt [No 4]
[2007] WASC 165 (S)
•27 JULY 2007
POWELL -v- IN DE BRAEKT [No 4] [2007] WASC 165 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 165 (S) | |
| Case No: | CIV:1661/2004 | 29 MAY 2007 | |
| Coram: | SIMMONDS J | 27/07/07 | |
| 27/08/07 | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Motions for contempt dismissed No order as to costs | ||
| B | |||
| PDF Version |
| Parties: | MIA MARY POWELL ANNA MARIA HUBERTINA IN DE BRAEKT |
Catchwords: | Contempt Interference with administration of justice Orders following from finding of contempts but dismissal of motions for contempt Whether to record convictions for contempt Whether costs should be ordered against contemnors |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 Sentencing Act 1995 (WA), s 39(2)(a), s 45 |
Case References: | Advan Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Attorney General v Butterworth [1963] 1 QB 696 Chan v Chen [2007] VSC 52 Cilli v Abbott (1981) 53 FLR 108 Davis v Baillie [1946] VLR 486 John Fairfax & Sons Pty Ltd v McCrae (1955) 93 CLR 351 Ottway v Jones [1955] 2 All ER 585 Port Philip City Council v Ironcroft Pty Ltd (No 2) [2003] VCAT 1582 Powell v In de Braekt [2007] WASC 165 R v MacDonald [1994] 1 VR 414 R v Pearce (1992) 7 WAR 395 R v Tognini [2000] WASCA 31 Re Perkins; Mesto v Galpin [1998] 4 VR 505 Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997) Robinson v Australian Association of Social Workers Pty Ltd [2000] SASC 239 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 27 AUGUST 2007 FILE NO/S : CIV 1661 of 2004 BETWEEN : MIA MARY POWELL
- Plaintiff
AND
ANNA MARIA HUBERTINA IN DE BRAEKT
Defendant
Catchwords:
Contempt - Interference with administration of justice - Orders following from finding of contempts but dismissal of motions for contempt - Whether to record convictions for contempt - Whether costs should be ordered against contemnors
Legislation:
Rules of the Supreme Court 1971 (WA), O 66
Sentencing Act 1995 (WA), s 39(2)(a), s 45
(Page 2)
Result:
Motions for contempt dismissed
No order as to costs
Category: B
Representation:
Counsel:
Plaintiff : Mr M H Zilko SC
Defendant : Ms M M in de Braekt
Solicitors:
Plaintiff : Hotchkin Hanly
Defendant : Megan in de Braekt
Case(s) referred to in judgment(s):
Advan Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
Attorney General v Butterworth [1963] 1 QB 696
Chan v Chen [2007] VSC 52
Cilli v Abbott (1981) 53 FLR 108
Davis v Baillie [1946] VLR 486
John Fairfax & Sons Pty Ltd v McCrae (1955) 93 CLR 351
Ottway v Jones [1955] 2 All ER 585
Port Philip City Council v Ironcroft Pty Ltd (No 2) [2003] VCAT 1582
Powell v In de Braekt [2007] WASC 165
R v MacDonald [1994] 1 VR 414
R v Pearce (1992) 7 WAR 395
R v Tognini [2000] WASCA 31
Re Perkins; Mesto v Galpin [1998] 4 VR 505
Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997)
Robinson v Australian Association of Social Workers Pty Ltd [2000] SASC 239
(Page 3)
1 SIMMONDS J: This judgment was delivered extemporaneously on 24 August 2007 and has been edited from the transcript.
2 I delivered my judgment in Powell v In de Braekt [2007] WASC 165 (my judgment) at a hearing on 27 July 2007. At that time I adjourned to a date to be fixed determination of the orders to be made. I ordered that written submissions be exchanged and submitted two days before the hearing. I reserved costs, including the costs of that day.
3 The parties subsequently provided me with written submissions and lists of authorities, for the applicant filed on 22 August 2007 and for the contemnors filed on 23 August 2007. On 24 August 2007 a hearing took place. Substantial argument was directed at the hearing to the orders I should make, including but not limited to orders as to costs.
4 My judgment was on two motions for contempt, one against each of the contemnors. The motions arose out of a history of the difficult litigation in CIV 1661 of 2004. That history is described in my judgment at [4] - [6]. The motions were to have the court exercise its summary jurisdiction to punish for the common law offence of contempt. The character of a proceeding of that kind as a criminal prosecution brought through civil process is described briefly in my judgment [21].
5 One of the contemnors is the plaintiff in CIV 1661 of 2004, Powell, and the other is her solicitor, Hanly. An aspect of the common law crime of contempt particularly relevant to my judgment and to this determination is that there is a discretion not to exercise the summary jurisdiction: see John Fairfax & Sons Pty Ltd v McCrae(1955) 93 CLR 351, 370 - 371, quoted in my judgment at [110].
6 In my judgment I determined that a contempt by intimidation of a medical practitioner, in respect of and following the presentation of his evidence in the form of an affidavit filed for the applicant in interlocutory proceedings in CIV 1661 of 2004, had been committed: see [79]. The contempt was in the sending of a letter, from Hanly copied to the client, to the deponent. In the letter a 'concern' amounting to a 'serious concern' was expressed about certain contents of the affidavit.
7 It was indicated that the client was 'minded' to refer the matter to the Medical Board. However, 'before doing so' the author of the letter indicated he had advised her it was appropriate to give the deponent an opportunity to respond to the concerns.
(Page 4)
8 However, I also determined in my judgment that in the exercise of the discretion referred to it would not be appropriate to punish the contemnors for the contempt I found here: see [115]. I concluded that 'it follows I would dismiss both motions for contempt, but on the basis described' ([116]).
9 I note in that last respect that that result in my judgment is in my view properly embodied in the result line of the published version. Counsel for the applicant objected to that 'Result', because it failed it failed to reflect my findings that a contempt by both contemnors was made out. However, I consider the conclusion reflected in the 'Result' line is the one that properly reflects my reasons. I further note that the 'Catchwords' refers to the matter of the question 'whether summary jurisdiction should be exercised'.
10 At the present hearing the parties addressed argument to me on three issues.
11 One was whether or not my judgment should be taken to have determined whether or not the contemnors should be convicted for their contempt. There was no question that I had in any event determined no penalty should be imposed. The submissions for the applicant were that I had determined on a conviction and appropriate orders should now be made. The submissions for the contemnors were that I had determined there should be no conviction of them.
12 The second issue, which arose if the answer on the first was that I had made no final determination, was whether or not an order for conviction should be made.
13 The third issue was what order as to costs should be made.
14 I will deal with those issues in the order given. I will provide only sufficient detail of my judgment to permit an understanding of my determination of the issues referred to. Otherwise I intend this decision to be read with my judgment. For each of these issues I indicate at the outset my conclusion. I then set out the reasoning that led to that conclusion.
The first issue: whether my judgment determined that the contemnors should be convicted for contempt
15 In my view, my judgment did not determine the matter of whether or not a conviction should be entered. That matter goes to the orders to be made following the delivery of judgment. In my view my judgment did
(Page 5)
- determine that the summary jurisdiction I had been asked to exercise by the motions of the applicant should not be exercised and accordingly the motion should be dismissed.
16 Counsel for the applicant laid emphasis on the heading to that section of my judgment concerning the discretion I exercised, my reference to 'punishment' for contempt in my conclusion to that section ([115]) and my findings that a contempt was made out for each contemnor. That heading was 'Whether or not the jurisdiction to punish for contempt should be exercised in this case'. I have previously set out the conclusion to that section, and I have previously referred to those findings.
17 However, the authorities recognise that it is characteristic of the discretion in this area that the court often asks itself whether or not it ought to exercise its summary jurisdiction, rather than two separate questions, of guilt and punishment. See the authority which is cited and considered in their written outlines of submissions by both counsel: Re Perkins; Mesto v Galpin [1998] 4 VR 505 (CA), 513 (Brooking JA), 516 (Phillips and Batt JJA), quoting from Davis v Baillie [1946] VLR 486, 493 - 494 (Fullagar J).
18 Even where, as in my judgment, a finding of contempt is made before the matter of the exercise of the discretion is addressed, the court may determine not to convict. See R v MacDonald [1994] 1 VR 414, 423 - 424 (Hampel J) referred to in Perkins, 514. The finding of contempt is treated as a finding of fact, not an adjudication of guilt.
19 In my judgment I determined that the motions for contempt should be dismissed as I indicated. At the same time I indicated I would not make final orders until further submissions had been made to me. I consider that this indicated, in accordance with the discretion I had indicated I was exercising, that, while I had determined not to punish, I was awaiting submissions as to further orders that should be made which could include whether or not to convict. My view of the exercise of my discretion is also my response to submissions for the contemnors that my judgment should be taken as a determination that there should be no conviction recorded.
The second issue: whether or not the contemnors should be convicted for contempt
20 I have determined it is not appropriate to convict for the contempt I have found in this case.
(Page 6)
21 Counsel for the applicant put to me that in any event a conviction of each of the contemnors should be returned based upon the determinations I set out in my judgment. Counsel's submission was put on several bases.
22 The contempt by the contemnor Hanly was - counsel for the applicant said - not merely 'casual, accidental or unintentional' in the sense referred to in Advan Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, [36] (Gillard J). That case concerned contempt by disobedience to an order of the court requiring that the contendor prepare a list of assets. In his 'rush' to complete the list he 'inadvertently' overlooked some assets ([82]). Counsel for the applicant said that is clearly not the case here.
23 I agree. However, it is not simply in cases of such contempt that the discretion may be exercised. Compare the contempt in respect of which no conviction was recorded in MacDonald. That case involved the seizure by police officers of police documents the officers believed to have been stolen. The documents were seized from counsel for the defence in proceedings in the Magistrates Court of Victoria.
24 The seizure occurred during a break in the proceedings. The documents formed part of the defence brief and were seized in the foyer of the court. The contempt was found to have been committed by both police officers, one of whom was subordinate to the other. The contempt by the senior officer was described as a 'serious contempt because he acted without regard to the consequences pointed out to him' (423).
25 In my judgment I determined it had not been shown the contemnors did not have a genuine concern of the sort described in the letter ([64] - [69]). I further determined that it had not been shown there was any intention to intimidate or punish the deponent ([78], [90] - [95]). I particularly noted in that connection the lack of an intemperate or hectoring tone in the letter [90]. Compare in MacDonald Hampel J's reference to his conclusion that the contempt in that case 'occurred in unusual circumstances and in my opinion was the result of lack of judgment and restraint, rather than intentional interference with the process of justice' (423 - 424).
26 I further consider that unlike in that case the letter here did not represent a 'high-handed' failure to consider how what the contemnors were determined to achieve might affect 'the rights of others or affect the administration of justice' (see 423). It seems to me that the provision of
(Page 7)
- the opportunity to respond, while not precluding a finding that a contempt had occurred (see [82]), goes to show this.
27 These matters, on the submissions of counsel for the applicant, go to the position of the contemnor Powell in the respects just described as well as the position of the contemnor Hanly.
28 Counsel for the applicant put to me that in my judgment I did not reach any affirmative conclusions on the matters I have just referred to; this left me simply with my bare findings as to contempt.
29 I disagree. While the determinations I have referred to from my judgment were expressed in terms of a failure to establish the matters referred to, those determinations rested on the evidence of the letter, its tone and its contents, and the lack of sufficient evidence to counter what would otherwise be inferred from that evidence.
30 A further basis put to me by counsel for the applicant for returning a conviction for contempt for the contemnor Hanly was that he was a senior member of the legal profession. I was referred to authorities on spent conviction orders under the sentencing legislation of this State (see current Sentencing Act 1995 (WA) s 39(2)(a) and s 45) which it was put to me were of assistance to me in considering the exercise of my discretion. Those authorities showed that counting against making such an order was the interest of the public in being aware of prior conduct of the person relevant to the decision whether or not to retain their services as well as considerations of personal and general deterrence: see R v Tognini [2000] WASCA 31 and Riley v Gill (Unreported, WASC, Library No 970731, 8 December 1997).
31 Sentencing legislation of this State is of course not applicable to the common law crime of contempt; see Law Reform Commission of Western Australia Report on Review of the Law of Contempt, Final Report (2003), 9. In my view, however, it is appropriate to weigh at least some of the considerations of the sort referred to in the cases on making spent conviction orders. This is notwithstanding such orders are not the equivalent of the exercise of the common law discretion involved in this case.
32 In particular, I consider I should note the indications in those cases of the need to take account of the nature of the offence in question as well as considerations of personal deterrence: Tognini [29] and [30], and Riley 10.
(Page 8)
33 I have referred to the nature of the conduct in question in relation to the previous submission of counsel for the applicant. Further, in relation to matters of personal and general deterrence, it is important to note the likely impact on the contemnors and others of the publications and the findings in my judgment: see the reference to such a consideration in MacDonald 424.
34 Further, I note that the contemnor in Perkins was a barrister in respect of whom the determination by the court below was that no conviction for contempt should be recorded, and the order in the court below was rectified on appeal to properly reflect that determination.
35 It seems to me the matters of the kinds just rehearsed also go to the submissions put to me by counsel for the applicant by reference to the age, experience and wisdom of both contemnors. Counsel for the applicant put to me, however, that unlike Perkins where the contempt consisted in the barrister's behaviour in open court, I should take account of the fact that the contempt was committed out of court and 'behind the back' of the applicant and her solicitor.
36 To the extent the submission puts that there was an attempt at concealment by the contemnors, the evidence does not support the suggestion. To the extent the submission suggests that the concerns in the letter were not genuine, because they could have been raised in court, but were not, and placed the witness in an unprotected position as a consequence, it seems to me that these are matters with which I dealt in my judgment, adversely to the submission: see my judgment [69] and [90] - [93]. It is not evident to me what more I should draw from the submission.
37 Counsel for the applicant put to me that I should note that the nature of the contempt - intimidation of a witness - was of a particularly serious character.
38 While I accept that intimidation of a witness is in general terms a serious form of contempt, it seems to me that it is important as well to note the character of that form of contempt in the particular case. Here there was no clear direction from the letter as to the way in which the deponent was being called upon to bend any future testimony: see my judgment [80]. I also note the provision of an opportunity to respond to the concern described in the letter.
39 Counsel for the applicant also reminded me that the proceedings in CIV 1661 of 2004 were then continuing. However, it seems to me this is
(Page 9)
- a restatement of the previous point. It is of the nature of the form of contempt in a case of this nature that there is a tendency to interfere with a witness's freedom of evidence in continuing proceedings: see my judgment [78] - [79].
40 Finally, counsel for the applicant reminded me there was and continues to be no evidence of any remorse or contrition by either contemnor or of any offer of an apology.
41 I consider that the absence of any such evidence could indeed be relevant to the exercise of my discretion and adverse to not returning a conviction. However, such absence does not preclude me not returning a conviction and I note in this regard the apparent lack of indications and remorse, contrition or apology in Perkins and MacDonald.
42 That is to say that my discretion is one that requires me to weigh all the matters to which I have referred. Weighing all of those matters, I have concluded that no order for conviction is appropriate in this case.
43 This takes me to the third issue.
The third issue: costs
44 I have determined that no order as to costs should be made.
45 Counsel for the contemnors put to me that there was no basis for any other order than the order generally made that costs follow the event: see Rules of the Supreme Court 1971 (WA) O 66 r 1(1). Departure from that general approach should only occur where special grounds associated with the case justify such departure, and those reasons must be stronger where a successful party is not only to be deprived of that party's costs, but ordered to pay those of the other party: Ottway v Jones [1955] 2 All ER 585, 587 - 591, and Robinson v Australian Association of Social Workers Pty Ltd [2000] SASC 239 [21] (Martin J, [1] (Prior J) and [3] (Williams J).
46 Counsel for the applicant had asked for just such an order as the last-mentioned, on a party-and-party basis, not the solicitor-and-client basis associated in Victoria at least with successful prosecutions for contempt, which is referred to in Chan v Chen [2007] VSC 52 [33]. That case there referred that practice to the 'public interest in upholding the rule of law'.
47 Counsel for the applicant put to me that the general rule that costs follow the event has no application to proceedings for contempt which do
(Page 10)
- not succeed because of the exercise of the discretion. I agree there are indeed indications in the authorities on contempt that the particular nature of the proceedings and the exercise of the discretion, as I have exercised it in this case, are relevant to costs orders. I return to those indications shortly.
48 However, I do not find in those authorities any indication that the general rule does not apply. Further, that would be inconsistent with the procedural character of prosecutions for the common law crime of contempt to which I previously referred. I also note the approach to the award of costs in criminal cases where the accused is acquitted and the court is in a position to award them: see Cilli v Abbott (1981) 53 FLR 108, 111 (Keely, Toohey and Fisher JJ).
49 I took the reference by counsel for the contemnors to Robinson to be a reference in particular to the weight that must be given to the general rule even when the case the successful party makes does not succeed in a significant respect: see [24]. This is provided at least that that part of the case which was unsuccessfully made was not put improperly or unreasonably: see [16].
50 I consider that the first matter is relevant to the argument put to me by counsel for the applicant, that the central aspect of the motions for contempt, whether or not the conduct of the contendors alleged is a contempt, had been shown to be a contempt.
51 I also consider that there were no issues raised by the contemnors which fell into the category represented by the second matter. I note that counsel for the applicant put to me that the contemnors refused to make admissions before the hearing of the motions for contempt, where some at least of those admissions were, as I understood the submission, made at the hearing itself.
52 However, I do not consider any of these matters, while not without cost to the applicant, to be of sufficient significance in the context of the proceedings as a whole to engage this basis for departure from the general rule.
53 However, I also note the authorities referred to me by counsel for the applicant in which orders for costs were made against the contemnors in cases involving the exercise of the discretion I have exercised in this case. I do not consider those authorities, while indeed of assistance to me, show such orders are to be considered the invariable form of costs order.
(Page 11)
54 I should note that not all of the authorities referred to by counsel for the applicant in this connection are relevant to me in that respect. This is so in respect of Attorney General v Butterworth [1963] 1 QB 696, a decision of the Court of Appeal, where there is no indication the discretion was invoked, and Perkins, where the court below acted on its own motion in finding a contempt made out, and was taken by the Court of Appeal to have ordered costs otherwise than in the exercise of the contempt jurisdiction.
55 However, in each of R v Pearce (1992) 7 WAR 395 and MacDonald (to which I have previously referred) orders for costs were made against a contemnor or contemnors whom the court in each case did not punish in the exercise of the discretion. See Pearce 431 (Malcolm CJ), 433 (Pidgeon J), 433 (Rowland J) and MacDonald 424. In Pearce the order was that one contemnor pay one half of the applicant's costs and the other two contemnors between them pay the other half. In MacDonald the order was that one of the two contemnors, but not the other, pay the applicant's costs; as to the other, there was no order as to costs.
56 I was also referred to a decision of the Victorian Civil and Administrative Tribunal, Port Philip City Council v Ironcroft Pty Ltd (No 2) [2003] VCAT 1582, which appears to be an authority not included on the original list of authorities with the outline of submissions for counsel for the applicant, but put up to me at the hearing. In that case a costs order was made against one of the two contemnors being the contemnor who was fined for the contempt made out in that case of disobedience to orders and undertakings. However, there was also a conclusion in respect of the other contemnor, for whom the member of the tribunal exercised 'my discretion', that he should not be found 'guilty of contempt in relation to any of the charges', although he was not an innocent party: see [22] and [36], respectively.
57 It was found that, while it was not appropriate that the second person recover his costs, there should be no order as to costs against him. I do not consider this adds anything significant to what can be gleaned from the authorities I now reach.
58 I note from the orders made in Pearce and MacDonald that it is not invariable the successful contemnor in such cases pay all, or the contemnor's appropriate share, or indeed any of the applicant's costs.
59 On my reading of those cases considerations that appear to be relevant include how clear a case of contempt is involved: see Pearce
(Page 12)
- 430. This case was not in my view a clear (in the sense of straightforward) case of contempt.
60 Also relevant is the degree of the likelihood and of the severity of the impact on the administration of justice: Pearce 430 - 431, MacDonald 423. In this case, while there was sufficient likelihood and degree of severity for contempt to be found, this was not a case of high likelihood of a severe impact.
61 Also relevant is the public interest in freedom of the conduct carrying with it the risk of contempt: Pearce 432. Here it was not apparent to me there was anything corresponding to the public interest in the full, fair and accurate reporting of court proceedings referred in Pearce 432.
62 And, finally, there is the question of whether or not what was involved was an error of judgment, rather than an intention to proceed in a situation carrying a risk of interference by the contemnor without careful consideration of the consequences or the taking of advice: Pearce 430 - 432, and MacDonald 423. This case in my view was one of an error of judgment rather than such an intention.
63 While I note that the considerations relevant to whether or not to record a conviction or to punish for contempt are not necessarily determinative of the costs issue, as the imposition of costs is not to be seen as a penalty (see Cilli 111), in my view Pearce and MacDonald indicate that those considerations are in this context both relevant and of significance. Weighing those considerations I consider that, as I have indicated, there should be no order as to costs of the hearing of the motions for contempt, or the subsequent hearings in relation to the orders to be made on my judgment.
0
9
2