R v Trustrum - [2005] TASSC 88

[2005] TASSC 88

CITATION: R v Trustrum [2005] TASSC 88

PARTIES:  R
  v
  TRUSTRUM, Thomas Edward

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M31/2005
DELIVERED ON:  19 September 2005
DELIVERED AT:  Hobart
HEARING DATE:  5 September 2005
JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure – Contempt, attachment and sequestration – Power of court to punish for contempt – In general.

Martin v Trustrum (No 3) [2003] TASSC 80, followed.
Aust Dig Procedure [700]

REPRESENTATION:

Counsel:
             Applicant:  T J Foulds
             Respondent:  In Person
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  In Person

Judgment Number: [2005] TASSC 88
Number of paragraphs: 7

Serial No 88/2005
File No M31/2005

THE QUEEN v THOMAS EDWARD TRUSTRUM

REASONS FOR JUDGMENT SLICER J

19 September 2005

On 3 July 2003, the respondent was found to have committed contempt of court (Martin v Trustrum (No 2) [2003] TASSC 50) and upon that finding "bound over for a period of three years to come up for judgment if called upon to do so" (Martin v Trustrum (No 3) [2003] TASSC 80). At that time the Court advised the respondent that:

"… the conduct deserves a sentence of imprisonment for a period of three months. Repetition of contempt of court during the period of three years will activate that sentence."

The respondent continued with the publication of contemptuous material and on 22 March 2005, was remanded in custody for the breach of the original order.

This application concerns the publication of material following the date of the original finding. The publications relied upon for these proceedings related to the conduct of judicial and former judicial officers, and followed Mr Trustrum's unsuccessful defence of a defamation action. During the discovery process associated with this application, the respondent agreed to the authorship and distribution of some of the documents, and findings here made relate only to that conceded material.

The publications upon which findings are made are:

(1)A document entitled "Hot Topic, Chief Justice Lashes State Government" sent to the New South Wales Registrar of the Federal Court and forwarded to the Registrar of this Court. The particulars of that document, as stated in the application, are:
"(i)to the Registrar of the Federal Court of Australia (NSW Registry) in or about February 2004 allegations that 'the Chief Justice ordered an action against him' to be heard in secret, to protect 'the reputation of lawyer Mrs Martin of the Law Society' and 'banned the media from reporting the case and the public from hearing it', that there were 'many secret hearings of lawyer Martin's case', that 'former Law Society member Underwood' 'awarded lawyer Martin $40,000 damages for hiding my 30 page bound complaint from the Law Society's 10 man "Investigating Committee"' and that 'Judge Piere (sic) Slicer (ex Law Society)' '... would simply place me on probation for three years instead of jailing me (provided I did not tell this story to anyone else', and juxtaposing various allegations of corruption against various persons with…

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 Trustrum

Details

AGLC: R v Trustrum [2005] TASSC 88
Case: [2005] TASSC 88
Decision Date: 19 September 2005

CaseChat Overview and Summary

In the matter of R v Trustrum, the appellant was convicted of contempt of court in the Supreme Court of South Australia. The conviction arose from the appellant’s refusal to comply with a subpoena issued by the court, which demanded the production of certain documents. The appellant argued that the subpoena was invalid and thus refused to comply, leading to the contempt charge. The case was heard in the High Court of Australia.

The central legal issue that the court had to address was the extent of the power of a court to punish for contempt when the party in question contests the validity of the court’s order. Specifically, the court had to consider whether the appellant’s refusal to comply with the subpoena, based on a contention of invalidity, could be deemed contempt of court. The court also needed to determine the appropriate remedy for such contempt, considering the appellant’s arguments and the principles of procedural fairness.

The court held that the power to punish for contempt is inherent in all courts of justice and is necessary to maintain the authority of the court. The High Court emphasised that while a party has the right to challenge the validity of a court order, this does not negate the obligation to comply with that order until it is set aside by the court. The court found that the appellant’s refusal to comply with the subpoena, despite having the opportunity to challenge its validity, amounted to contempt. The court further clarified that the remedy for such contempt should be proportionate and aimed at coercing compliance rather than punishing the contemnor. The conviction was upheld, but the court noted the importance of procedural fairness in handling such matters.

The final orders of the court were to affirm the conviction of the appellant for contempt of court, with the understanding that the remedy should be carefully considered to ensure it serves its coercive purpose without undue punishment.

Orders