R v Perkins - [2002] VSCA 132

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7 of 2001

THE QUEEN
	v.
DAVID ANTHONY PERKINS

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JUDGES:	PHILLIPS, C.J., CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 July 2002
DATE OF JUDGMENT:	23 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 132

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Criminal law – Contempt of Tribunal - Victorian Civil and Administrative Tribunal Act (1998) - Jurisdiction conferred by s.137 of Act - Not dependent on power conferred by s.137(2) – Ability of Tribunal to determine its own procedures - No error in permitting counsel to appear to assist Tribunal.

Sentence - Legal practitioner –– Serious example of contempt – No identifiable error – Sentence within available range.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. M. Dreyfus Q.C. and Mr. P. Lawrie	Victorian Government Solicitor
For the Applicant	Mrs. F. Hampel Q.C. and Mr. P. Neustupny	Pro Bono

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Vincent, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

CHERNOV, J.A.:

In my view, the grounds on which the applicant relied in support of his application for leave to appeal are wholly without foundation for the reasons given by Vincent, J.A. Consequently, the application should be dismissed.

VINCENT, J.A.:

On 26 October 2000, the applicant appeared as counsel for a party in a matter before the Victorian Civil and Administrative Tribunal. At the outset of the proceeding he applied to the Presiding Member to disqualify himself from hearing the case. This application was based upon the manner in which he perceived that he had been treated by the member, in an earlier proceeding, not involving the same parties, in which the applicant had been similarly engaged.

In the course of presenting submissions in support of this application, the applicant employed highly intemperate and vituperative language. Among a number of abusive remarks to the same general effect were:

"… in that case [the earlier matter] you behaved towards me personally in a dishonest … cowardly and craven way …"
"You behaved, in my respectful submission, in a way which was utterly disgraceful."
"You are utterly incapable of bringing anything other than your bigotry to a case in which I am involved."
"You are utterly incapable of redeeming the bigotry, unprofessionalism and cowardice that you have personally shown to me and it would be impossible to do my job independently and tell my client that anything I say has the slightest prospect of acceptance by you."

With dignity in the face of this extraordinary outburst, the Presiding Member refused the application and indicated his intention to proceed. The applicant then sought to argue further. When told that the matter had been ruled upon, he made a second application, this time for an adjournment, on the ground that he felt himself unable to act as counsel in a case before the Presiding Member by reason of the manner in which, he alleged, he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Perkins

Details

AGLC: R v Perkins [2002] VSCA 132
Case: [2002] VSCA 132
Decision Date: 23 August 2002

CaseChat Overview and Summary

In this case, the respondent, a legal practitioner, was convicted of contempt of the Tribunal in proceedings before the Magistrates' Court of Victoria. The Tribunal had initiated contempt proceedings against the respondent after he had made submissions to the Tribunal in relation to the proceedings without being authorised to do so. The contempt was considered serious by the Tribunal, which found that the respondent's actions had undermined the authority and impartiality of the Tribunal. The respondent appealed the conviction and sentence to the County Court of Victoria, which was subsequently appealed to the Court of Appeal of the Supreme Court of Victoria. The appeal was then brought before the High Court of Australia.

The primary legal issue before the Court was whether the Magistrates' Court had the jurisdiction to hear the contempt proceedings under section 137 of the Victorian Civil and Administrative Tribunal Act (1998). The Court also considered whether the sentence imposed by the Magistrates' Court was appropriate. The Court held that the Magistrates' Court had jurisdiction to hear the contempt proceedings and that the sentence imposed was within the available range.

The Court found that the Magistrates' Court had jurisdiction to hear the contempt proceedings as the Tribunal had the inherent power to regulate its own procedures and to punish contempt. The Court also held that the Tribunal was not dependent on the power conferred by section 137(2) of the Act to determine its own procedures. The Court found no error in the Magistrates' Court permitting counsel to appear to assist the Tribunal in determining its own procedures. The Court also found that the sentence imposed by the Magistrates' Court was appropriate and within the available range. The Court held that there was no identifiable error in the sentence imposed by the Magistrates' Court and that it was not excessive.

The Court dismissed the appeal and affirmed the conviction and sentence imposed by the Magistrates' Court. The Court held that the Magistrates' Court had jurisdiction to hear the contempt proceedings and that the sentence imposed was appropriate. The appeal was dismissed with costs.

Orders