Registrar, Supreme Court of Norfolk Island v Walsh (No 7)
[2021] NFSC 5
•24 September 2021
SUPREME COURT OF NORFOLK ISLAND
Registrar, Supreme Court of Norfolk Island v Walsh (No 7) [2021] NFSC 5
File number(s): SC 2 of 2016 Judgment of: RARES J Date of judgment: 24 September 2021 Catchwords: CONTEMPT OF COURT – sentencing – where contemnor struck off barrister guilty of contempt for contravening orders to pay by wilfully not paying sums to third party and to applicant for taxed costs – where contemnor earlier failed to appear and participate in proceeding – where contemnor given further opportunity to purge contempt or be heard as to why conviction should not be entered – where contemnor deliberately evaded giving full explanation for conduct constituting contempt and continued intention not to comply with Court’s orders – where contemnor compounded contempt during hearing by making scandalous allegations against judges of Court
CONSTITUTIONAL LAW – where s 32 of Supreme Court Act 1960 (NI) purported to create right of appeal to Federal Court of Australia – where s 19(4) of Supreme Court Act 1960 (NI) applied Court Procedure Rules 2006 (ACT) that created right to seek leave to appeal in r 5072 – where s 77 of Constitution only source of power for any polity to confer jurisdiction on a federal court other than High Court – where s 24(1)(b) of Federal Court of Australia Act 1976 (Cth) created right of appeal from Supreme Court
Legislation: Bankruptcy Act 1966 (Cth)
Federal Court of Australia Act 1976 (Cth)
Court Procedure Rules 2006 (ACT)
Supreme Court Act 1960 (NI)
Federal Court Rules 2011
Cases cited: Re Macks; Ex parte Saint (2000) 204 CLR 158
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Registrar, Supreme Court of Norfolk Island v Walsh (No 3) [2017] NFSC 4
Registrar, Supreme Court of Norfolk Island v Walsh [2021] NFSC 4
Taylor v Taylor (1979) 143 CLR 1
The Mayor and Aldermen of The City of London v Cox (1867) LR 2 HL 239
Walsh v Registrar, Supreme Court of Norfolk Island [2018] FCA 1075
Number of paragraphs: 48 Date of hearing: 24 September 2021 Counsel for the Applicant: Mr G. Johnson Solicitor for the Applicant: Sparke Helmore Lawyers Solicitor for the Respondent: The respondent appeared in person ORDERS
SC 2 of 2016 BETWEEN: REGISTRAR OF THE SUPREME COURT OF THE NORFOLK ISLAND
Applicant
AND: JOHN WALSH
Respondent
order made by:
RARES J
DATE OF ORDER:
24 September 2021
THE COURT ORDERS THAT:
1.The respondent be sentenced to a term of six months’ imprisonment, such sentence to commence, unless the Court otherwise orders, on 17 December 2021.
2.The respondent may apply to purge his contempt on affidavit at any time on reasonable notice prior to the sentence coming into effect on 17 December 2021.
3.The respondent pay the applicant’s costs on an indemnity basis.
THE COURT NOTES THAT:
4.Any affidavit that cannot be sworn or affirmed because of public health orders may be filed on condition that, unless the opposing party consents to it being received as evidence of its truth, the deponent attend the Court on a date to be determined to verify its contents.
ORDERS
SC 2 of 2016 BETWEEN: REGISTRAR OF THE SUPREME COURT OF THE NORFOLK ISLAND
Applicant
AND: JOHN WALSH
Respondent
order made by:
RARES J
DATE OF ORDER:
27 September 2021
THE COURT ORDERS THAT:
5.The orders made on 24 September 2021 be amended by inserting, before order 1, the following order:
1A.On the charges of contempt in the amended application in proceeding filed on 24 August 2020, it be declared that the respondent is guilty and convicted of contempt of the Court for contravening:
(a)order 4 made on 23 February 2018, as varied by order 1 made on 1 March 2018, namely that, within 28 days of 23 February 2018, he pay Dr Ping-Fat Sze the sum of AUD433.69 (inclusive of interest from 1 July 2007) by wilfully and contumaciously not making any payment to Dr Sze as ordered or at all, and
(b)order 6 made on 23 February 2018, namely that he pay the applicant’s costs of and incidental to the proceeding, such costs to be taxed, if not agreed, by wilfully and contumaciously not making any payment to the applicant as ordered or at all of the whole or any part of the costs as certified in the certificate of costs assessment in the sum of $143,775.67 issued on 24 June 2019 and served on the respondent on 25 June 2019.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
On 11 June 2021, I made findings, at that time in the absence of the respondent, John Walsh, that I would enter convictions reflecting that he had committed contempts of the Court in contravening the orders made by Gilmour J on 23 February 2018 that, first, within 28 days of that order he reimburse Dr Ping-Fat Sze the sum of AUD200 with interest payable from 1 July 2007, that a further order made on 1 March 2018 quantified in the total sum of AUD433.69, and, secondly, he pay the applicant, the Registrar of the Court, his costs of and incidental to the proceeding (the payment orders). On 23 February 2018, his Honour also made other orders, including that Mr Walsh’s name be removed from the Register of Practitioners of the Court and his right to practice as a lawyer in Norfolk Island be suspended for 10 years. The Registrar’s costs were later quantified as AUD143,775.67 in a certificate of taxation issued on 24 June 2019: Registrar, Supreme Court of Norfolk Island v Walsh [2021] NFSC 4 (the principal reasons).
However, I did not then enter any convictions, but adjourned the proceeding for a further hearing on penalty and gave Mr Walsh one further opportunity to be heard so that he could either, first, seek to purge his contempt or, secondly, establish there was some matter that had not appeared in the evidence before me, adduced in his absence, to suggest that he was not guilty or would not support the entry of convictions. On 17 June 2021, I made orders freezing Mr Walsh’s assets to seek to ensure that there would be some prospect of him meeting any obligation to make payments under the Court’s existing orders.
On 6 August 2021, Mr Walsh decided that he would actively participate in the proceeding by appearing at a case management hearing, after avoiding or flouting attempts to require him to participate (see principal reasons at [41]–[55]).
On 6 August 2021, at the case management hearing, I made orders that Mr Walsh file and serve any affidavits on which he proposed to rely as to:
(a)why he had not appeared up to then on the application that the Registrar filed on 15 May 2020 seeking that he be convicted of contempt of the Court for his contravention of the payment orders,
(b)why he should not be convicted of contempt because he had not complied with the payment orders in accordance with the principal reasons,
(c)any evidence of a medical practitioner in support of his asserted need for an operation and its cost, and
(d)his assets and liabilities and why the freezing orders that I made on 17 June 2021 should be varied.
I stood the matter over for case management on 2 September 2021.
On 2 September 2021, Mr Walsh appeared and I ordered that the proceeding be listed for today in respect of, first, his application to set aside the freezing order, secondly, his application to set aside all other orders made against him and, thirdly, any conviction or penalties that would be imposed on him.
Mr Walsh’s evidence
Mr Walsh made two affidavits in support of his position, the first on 27 August 2021 and the second on 16 September 2021. Through no fault of his, he was not able to verify either affidavit before a person authorised to administer an oath because of public health orders applicable in Victoria. However, he verified both in his oral evidence today.
In his first affidavit, Mr Walsh asserted that he was unaware of the orders that Gilmour J had made on 23 February 2018 “until well after the Hearing”, including the payment orders. He asserted that the Federal Court of Australia Registry wrongly rejected his attempts to file a notice of appeal from Gilmour J’s orders of 23 February 2018 outside the 21 days then prescribed in r 36.03 of the Federal Court Rules 2011. Mr Walsh asserted he had 28 days to do so “as prescribed under Norfolk Island law and custom”, and that, on 19 July 2018, Wigney J wrongly refused to allow the notice of appeal to be filed or grant him an extension of time in which to do so: Walsh v Registrar, Supreme Court of Norfolk Island [2018] FCA 1075.
Mr Walsh said that:
No Contempt was intended as I was unaware of the subsequent Proceedings. I was unaware of the outrageous, escalating costs and would have appealed them through the correct procedures. There was no taxation of costs or I would have been notified and would, most certainly, have defended them.
…
I have no liquid assets apart from my clothes and books, as I now live in Aged Care and on an Aged Pension, most of which is paid to the Brotherhood of St Lawrence for my care and accommodation. I have been advised by the Commonwealth Bank that all funds have been removed from my bank accounts, as the freezing order had been ignored.
…
I have no liabilities that I am aware of, but I will have in the future (medical, Health Insurance, phone, etc if I am not allowed to practice.
(emphasis added)
Mr Walsh asserted that all the funds in his bank accounts with the Commonwealth Bank had “been removed” as a result of the bankruptcy petition that the Registrar filed in the Federal Circuit Court of Australia in Sydney under the Bankruptcy Act 1966 (Cth). However, pursuant to s 9A (which was in force until repealed as of 2 August 2021), that Act did not apply to Norfolk Island. Mr Walsh gave evidence today that when he attended at the Commonwealth Bank on 2 December 2020, an officer of the bank told him that he “had applied for bankruptcy, and as a result, they had frozen all my accounts”.
He also said that:
At the case management hearing on 2 September 2021, I am hoping we can reach an agreement about the validity of continuing a tainted case and its subsequent judgments, the failure to be granted an Appeal on a jurisdictional misunderstanding, and the deliberate bankruptcy action in the wrong court,
In his second affidavit, Mr Walsh said that after Gilmour J made the orders on 23 February 2018, “I believe I have become overcome by the injustice of it all”. He said that “while I have not paid Dr Sze the money which is the subject of the Contempt of Court charge, I have never refused to pay him the sum awarded him by Gilmour J”. He asserted that he wanted the opportunity to appear before a judge “who will give me a fair go to receive justice”. He said that when he learnt of Gilmour J’s declarations, “I was devastated and could not believe it”. He asserted that his application for leave to appeal “was knocked back, without giving reasons”.
He said that he had taken “great umbrage” at the bringing of the professional conduct proceedings that Gilmour J ultimately heard and decided so that he had acted in a non-cooperative way.
He asserted that Gilmour J’s findings were “erroneous”. He said, despite his Honour’s findings in relation to the supposed International Tribunal of Natural Justice (ITNJ) (which I summarised in the principal reasons), “Other people came up with the name, ‘Chief Justice’, and I did not change it”. He said that:
As for using the expression "Chief Justice" it is acknowledged that the expression is usually applied to the holder of the senior office of superior courts, however it is not an expression protected by patent or any law in Australia. Thus, leaving aside a legal practitioner, if a lay person were to establish a tribunal to conduct inquiries into, say, animal cruelty and was to call him/herself "Chief Justice" it is submitted no law would be contravened.
…
In the absence of a law to the contrary it is submitted that no disciplinary consequences should apply, even though members of the judiciary and the profession may feel uncomfortable at that outcome.
Also, despite Gilmour J’s findings, Mr Walsh also said that there was no evidence that he had made any false representations using the honorific “Sir”, and that he only acknowledged making one representation, namely “I am entitled to use the honorific ‘Sir’” because, as he had told Gilmour J, it was “French in origin”. He also sought to challenge the credibility findings that Gilmour J made of witnesses whose evidence he accepted.
Mr Walsh then asserted that the charges of contempt, in relation to his failing to pay Dr Sze and the Registrar’s costs under the payment orders, “is most unusual”. He said that an application that claimed a person was in contempt in respect of a failure to pay money under a court order was inappropriate. He asserted that Gilmour J had made orders that Mr Walsh pay money to Dr Sze “without affording me the opportunity to be heard amounted to a denial of procedural fairness, even if the making of an order for payment was an appropriate thing to do”.
He said that “to take contempt proceedings against a person for failing to pay a costs order is virtually unheard of in litigation matters.” He asserted that it had to be remembered that the contempt proceedings, which followed Gilmour J’s orders against him, occurred in the circumstances that “I was denied the opportunity to appeal because it was found on a submission by the Registrar of the Federal Court in Melbourne, he [scil: that Court officer or Wigney J] considered I relied on the wrong procedures”. Mr Walsh continued to contend that he was wrongly denied a right of appeal from Gilmour J’s orders. Mr Walsh also made further allegations against another witness called by the Registrar in the disciplinary proceeding.
Mr Walsh said, referring to the affidavits of the Registrar’s solicitor, Tom Hillyard, including that of 10 September 2021, that he was “not disputing that many communications took place between us and other parties”. He asserted that his “biggest problems” occurred when he had to move from his then place of residence at the Adina Hotel in Queen Street, Melbourne, as a result of public health orders that required that that Hotel be used for the purposes of providing a quarantine facility. He said that he had to move to other accommodation, was in constant pain and suffered from failing eyesight due to his glaucoma and cataracts and:
Moreover, as my disillusionment with the Court system increased, so did my sense of rejection. I ask that you put yourself in my shoes as this is my perspective of what happened. Looking back, a different approach would have been preferable.
He also made numerous allegations against the Registrar, including that his life had become more complicated because of the Registrar’s institution of bankruptcy proceedings in May 2020 against him in the Federal Circuit Court of Australia, as it then was called. He claimed that somehow that was the wrong jurisdiction and that the judge’s finding in the bankruptcy proceeding that the Court had telephoned him (Mr Walsh) on the morning of the hearing of the bankruptcy petition was “totally false”. He said that the judge had telephoned the Adina Hotel switchboard, at which he no longer was staying, and he never answered in his phone in the way that the judge had described in his reasons. He also made numerous other complaints about the bankruptcy proceeding. He also asserted that the Registrar had breached (unidentified) obligations as a model litigant in commencing the bankruptcy proceedings.
Mr Walsh suggested that a “solution” was to rescind all the previous orders, allow an appeal to be heard in the Federal Court, or alternatively set aside the decision of Gilmour J and order a rehearing in this Court. He also asserted that this Court should “request the Circuit Court in New South Wales to rescind the Bankruptcy and Sequestration Orders. If it is determined that this is impractical [then] that the matter be transferred to the High Court for hearing of the matter pursuant to Section 75 of the Constitution of the Commonwealth of Australia”.
Mr Walsh’s submissions
Mr Walsh proposed the following as the orders which I ought now make:
1.That the Respondent, John Walsh of Brannagh, is not a bankrupt person as an incorrect name was deliberately used on the Application for Bankruptcy by the Registrar of the Supreme Court of Norfolk Island
2.That the alleged bankruptcy in the Circuit Court of New South Wales has no validity or effect on Norfolk Island, therefore assets and moneys on Norfolk Island are not subject to the aforementioned bankruptcy, in particular with reference to S9A
3.That Commonwealth Aged Pension and Trust moneys seized by the Commonwealth Bank be returned forthwith
4.That the Respondent be granted by Court Order extended leave to appeal to the Federal Court of Australia under Court Procedure Rule ACT Reg 6351 because he has been denied Natural Justice through the administrative confusion of the procedural rules between Norfolk Island and Australia in regard to time to appeal
5.That the freezing order be lifted on the bank accounts of the Respondent
6.That if there is any difficulty with the above Orders, the matter should be uplifted to the High Court of Australia in accordance with Sections 51 and 75
7.That the conviction for contempt be lifted because the Respondent has purged his contempt by full explanation.
As I pointed out to Mr Walsh in the course of the hearing, the first three orders he sought were beyond the jurisdiction of this Court. First, the Federal Circuit Court had jurisdiction to make a sequestration order under the Bankruptcy Act1966 (Cth), and the Supreme Court of Norfolk Island has no jurisdiction in relation to the exercise of the Federal Circuit Court’s jurisdiction in Australia. Secondly, s 9A of the Bankruptcy Act 1966 (Cth), which had applied since 1 July 2016 but was repealed effective from 2 August 2021, expressly provided that that Act did not apply to Norfolk Island, and, as a consequence, the bankruptcy orders applied to Mr Walsh’s estate on the Australian mainland. Thirdly, whatever the Commonwealth Bank did on 2 December 2020 with moneys that it held at the time of the conversation to which Mr Walsh referred in respect of his bankruptcy was beyond this Court’s jurisdiction.
The Commonwealth Bank appears to have acted in respect of Mr Walsh’s Norfolk Island accounts only as a consequence of the freezing order that I made on 17 June 2021. Since then, moneys he had in bank accounts both on the Island and on the mainland of Australia are subject to those freezing orders. In my opinion, the freezing orders flushed Mr Walsh out and caused him to decide, belatedly, to engage in this proceeding that he has known of but was evading participating in until early August 2021.
The fourth order that Mr Walsh seeks is that, somehow, this Court make an order granting him leave to appeal from Gilmour J’s orders under rr 5072 and 6351 of the Court Procedure Rules 2006 (ACT). Rule 5072 provides that an appeal to the Supreme Court requires that an application for leave to appeal, an accompanying affidavit and draft notice of appeal, be filed not later than 28 days after the order sought to be appealed from is made, or not later than any further time allowed by the court. And, r 6351 gives the Supreme Court the power to extend time on any application pursuant to r 5072.
While s 19(4) of the Supreme Court Act 1960 (NI) provides that the rules in force in the Supreme Court of the Australian Capital Territory apply in this Court to a matter or class of matters of practice and procedure in the absence of rules made by the Chief Justice of this Court, those rules have nothing to do with appeals from this Court.
I am unable to understand how the applied Rules of the Supreme Court of the Australian Capital Territory can affect the jurisdiction of the Federal Court in any way. The Federal Court’s power to hear and determine appeals is conferred by s 24(1)(b) of the Federal Court of Australia Act 1976 (Cth), as Wigney J noted in Walsh [2018] FCA 1075 at [32] where he said that it was unclear how s 32 of the Supreme Court Act 1960 (NI) applied in light of the federal Act. Wigney J noted that s 24(1)(b) appeared to be the source of the jurisdiction to appeal to the Federal Court from a decision of this Court. But, his Honour, in any event, refused Mr Walsh’s application for an extension of time in which to file his notice of appeal because he considered that Mr Walsh’s proposed grounds of appeal lacked any discernible merit: Walsh [2018] FCA 1075 at [30]–[32], [65]–[80]. That was same substantive exercise of jurisdiction which Mr Walsh sought to invoke in seeking leave to appeal under r 5072 and an extension of time in which to appeal under r 6351.
In my opinion, in the absence of any law made by the Parliament of the Commonwealth authorising the conferral of jurisdiction on a court exercising the judicial power of the Commonwealth, there is no apparent source of power for a Territory legislature to make a law or other instrument to give power to its executive government or judiciary to make a legislative instrument or rule that can confer jurisdiction on this Court to hear appeals: see Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 573–575 [107]–[111] per Gummow and Hayne JJ, with whom Gleeson CJ and Gaudron J respectively agreed at 546 [25] and [26]. Only the Parliament of the Commonwealth can create jurisdiction in courts exercising the judicial power of the Commonwealth and, as Gummow and Hayne JJ said, s 77 of the Constitution is the source of power of the Parliament of the Commonwealth to confer the jurisdiction on a federal court in matters under ss 75 and 76 and “no other polity can confer jurisdiction on a federal court” (their Honour’s emphasis) (198 CLR at 575 [111]). Mr Walsh’s application for his fourth order is misconceived.
Likewise, Mr Walsh’s sixth order sought, somehow, that this Court “uplift” this proceeding to the High Court under ss 51 and 75 of the Constitution. As I understood his argument, he was asserting that he was a resident of Norfolk Island, being a Territory, and that it fell within the meaning of “State” in s 75(iv). His argument, the nature of which I could not comprehend, seemed to be that, as a resident of the Island viewed as a State, which plainly it is not, there was either a “matter” between him and the State of New South Wales, because the “Circuit Court in New South Wales” had made the sequestration order, or that there was some other dispute between him and an unidentified resident of another State. The Federal Circuit Court is a court created by the Parliament and s 75(iv) has no connection to its exercise of federal jurisdiction under the Bankruptcy Act 1966 (Cth). Rather, that is a law made by the Parliament under s 76(1) that conferred jurisdiction on that Court under s 77(i) to make Mr Walsh bankrupt. The submission was incomprehensible, and I reject it.
Mr Walsh, in support of his seventh proposed order, also asserted that he should not be convicted, and I should not act as foreshadowed in the principal reasons, because he had purged his contempt by a full explanation.
In my opinion, Mr Walsh has evaded, deliberately, giving a full explanation. While he asserted that he had “no liquid assets”, he made no reference in either of his affidavits about what other assets he had or might have had or their value. He gave evidence that there was a “procedural difficulty” in paying Dr Sze and the Registrar’s costs because:
I’m not allowed to have a bank account, I’m not allowed to pay any accounts, and in fact my pension was seized by the Commonwealth Bank and not released. They still have it. So I can’t pay any accounts because I have no money. It has all been taken.
HIS HONOUR: And have you put on all of your – you haven’t actually disclosed all your assets and liabilities in this proceeding, have you?
MR WALSH: Well, I have no tangible assets. The only asset I have is a potential claim of $4 million against the Commonwealth, being the $4 million that I invested in Norfolk Island some years ago, and was given the endorsement by the then-Prime Minister John Howard, when he came to the island, who then in a shift of policy basically destroyed that investment. And apart from that – I’ve got some outstanding fees from clients, except the list of outstanding fees and the client list was taken from my rooms at the Adina hotel complex when I was away for that 11-month period where I disappeared. The other thing that disappeared was £1500 and €2000 that were kept in separate files. So that disappeared also, and the only explanation I can get from the police authorities is someone must have broken into the room during the time it was locked up.
(emphasis added)
When he was making submissions, I raised my concern with him that he had not given a verified statement of his assets and liabilities. He responded that “I am prohibited by public health orders from leaving the building to visit my accountant in the city”. When I suggested that he could have used a telephone to contact his accountant, he responded that I could make an order that, within a specified time, he file a verified statement of his assets and liabilities.
As Mr Walsh reminded me during this hearing and on previous occasions, he was an experienced counsel of many years standing. He is well aware of how to provide an affidavit of assets and liabilities that set out frankly what his real financial position was, in accordance with the order made on 6 August 2021. I am not satisfied by his evidence that he has made a full and frank disclosure of his assets and liabilities. I am not satisfied that his only source of income or capital is his pension.
Mr Walsh, in support of his fifth proposed order, asserted that I should lift the freezing orders, and if I did that he would cause Dr Sze to be paid the money owing to him provided that he could use the balance for an eye operation. He relied on a letter that his specialist ophthalmologist, Associate Professor Simon Skalicky, wrote, dated 3 September 2021, that “cataract surgery is indicated in the near future” because of his moderate cataracts and moderate glaucoma.
Mr Walsh made no other proposals about how he would purge his contempt. He does not accept the binding authority of the Court’s orders, the need for him to obey them or to give a full explanation about any inability to comply with them.
I find beyond reasonable doubt that Mr Walsh has no intention of complying with the payment orders. That is because he resents the orders that Gilmour J made on 23 February 2018, believes they were wrongly made and that he does not have to accept the authority of the Court. He said in submissions:
MR WALSH: Justice Gilmour resigned straight after that decision.
HIS HONOUR: So what?
MR WALSH: So what? He resigned because he had a guilty conscience, that’s what.
(emphasis added)
Earlier today, he gave the following evidence in cross-examination:
Yes. And he made those findings against you, and he made orders striking you from the roll in Norfolk Island. That’s right?---Yes. Yes, he followed instructions given to him.
HIS HONOUR: ..... Mr Walsh?---I beg your pardon? What did you say about Justice Gilmour?---I said he followed instructions .....
Are you suggesting that somebody instructed Justice Gilmour to exercise his judicial power in that way?---Yes. Yes .....
You said to me his Honour was instructed to do something, to make orders against you?---Yes, he said that from the bench that he discussed the matter with Anthony Besanko and he was following in what Besanko was going to rule on before he stepped down. It’s in the transcript.
(emphasis added)
In cross-examination, Mr Walsh also gave the following evidence as to his state of mind after Wigney J refused to extend the time for him to file a notice of appeal.
MR JOHNSON: And that being the end of that, Justice Gilmour’s declarations and orders stood; correct?---Provided they were lawful.
I’m sorry, Mr Walsh?---Provided they were lawful.
What do you mean by that?---So they were in accordance with the law because what was behind it was flawed. There was no money owing to Dr Sze at all. And the charges that had been created by Justice Anthony Besanko were basically to keep me quiet.
Well, Mr Walsh, you’ve described yourself as a barrister at law and you were a practitioner both in Norfolk Island and in Australia. You must accept, don’t you, that a judgment of a court – of a superior court – once made, and then once all appellate avenues have been exhausted, is a decision at judgment that you must comply with; correct?---Provided it’s lawful
So according to you, if your opinion is that the judgment of the – this court is not lawful, for whatever reason you say that is, you are not bound to comply. Is that what you’re saying?--- ..... the judgement. It’s the view in the profession. As one member put it fairly succinctly, he said, “You’ve been railroaded.”
Well, but the – that’s your – that’s also your opinion, Mr Walsh; is it not?---Well, no, I – yes, that’s not the expression that I would use. So Justice Wigney was supposed to be sitting as an independent Federal Court judge who neglected to tell anybody that he had accepted a position to replace Justice Gilmour on the Supreme Court of Norfolk Island bench, which would have caused a change of the judge to hear the application for leave to proceed to the Federal Court. He neglected. He must have had a bad memory and he forgot to tell anybody.
Are you suggesting, Mr Walsh, that Justice Wigney was not acting independently in the exercise of his Honour of the judicial - - -?---Sorry, you would have to ask him that.
HIS HONOUR: Well, what …are you suggesting, Mr Walsh, when you say Justice Wigney was supposed to be an independent Federal Court judge? Are you suggesting that he wasn’t or not?---Well, I don’t know. All I know is that he listened to the argument. He didn’t seem interested in it at all. Then retired from the bench and then came back and said application refused, got up and just walked out. So ..... one got the impression that he had already made up his mind.
MR JOHNSON: Well, Justice Wigney, Mr Walsh, delivered reasons for judgment, numbering approximately 80 paragraphs dealing with your application for an 20 extension of time - - -?---Yes.
(emphasis added)
Finally, in his cross-examination, he gave this evidence:
MR JOHNSON: Leaving aside those matters you’ve just spoken about, Mr Walsh, 10 the reason you haven’t paid to date Dr Sze or the registrar’s costs is because, as you have given evidence this afternoon, you disagree with Gilmour Js orders and you believe that the whole process is tainted and needs to be addressed by a higher court, as you put it. Correct?---Yes. I do, and I was hoping that today’s proceedings would be able to resolve the issue, and then I could move on. I’ve asked in the submission that I made that this court applies the provisions of the rules of court of Norfolk Island and gives me leave to appeal to the Federal Court so I can walk back into the Federal Court and say the court has given approval for me to proceed with the appeal, which I would then do.
(emphasis added)
As noted above, in the principal reasons, I said that I would give Mr Walsh a further and final opportunity to be heard and to purge his contempt (Walsh [2021] NFSC 4 at [70]). In my opinion, Mr Walsh has compounded his contempt today by making outrageous, scandalous, unsupported and serious allegations against three judges of this Court and the Federal Court, being Besanko CJ, Gilmour J and Wigney J.
While the Chief Justice recused himself from the original hearing of the disciplinary phase of this proceeding, Mr Walsh’s assertion that the Chief Justice or Gilmour J would give or receive instructions as to how Gilmour J would discharge his judicial functions is without the slightest shred of evidence to support it. It was an outrageous and a contumacious attack on the integrity of the Court and the Court’s judges. Mr Walsh persisted, during the hearing today, in his unfounded and scandalous allegations against Besanko CJ, Gilmour J and Wigney J. That conduct demonstrates that he has no intention of respecting or complying with the orders of the Court that is the duty of every person bound by its orders.
In the principal reasons, I discussed the principles on which the Court’s power to punish for contempt is founded and that that govern its exercise: Walsh [2021] NFSC 4 at [56]–[63]. As explained there, the Court must have the ability to vindicate its authority where a person who is in breach of its orders refuses to remedy that default or to obey the orders and the Court orders he made.
I find beyond reasonable doubt that Mr Walsh has no intention of obeying the payment orders, and will continue to defy them, including by denigrating Gilmour J, because he strongly disagrees with, and does not accept, his Honour’s findings.
While it is understandable that a party who loses a proceeding will be disappointed with that circumstance, that situation does not create a licence for the litigant, first, to choose whether or not to obey the orders of the Court, or, secondly, to make scandalous and unfounded allegations about judges of the highest integrity on no basis whatsoever.
When I asked Mr Walsh what punishment I should impose on him to vindicate the Court’s authority other than to send him to prison for not obeying the payment orders, he suggested that I convict him and sentence him to community service. However, such an order would not communicate to Mr Walsh or to the community the gravity of his repeated and flagrant breach of the Court’s orders and his continued denigration of judges of this and other Courts.
I reject Mr Walsh’s complaint based on Gilmour J having heard the trial when Mr Walsh was not present. It is important to appreciate that every court has inherent or implied jurisdiction to set aside an order made in the absence of a party where that party, through no fault of his, her or its own, has not been able to appear at the time of the hearing: Taylor v Taylor (1979) 143 CLR 1 at 6–7 per Gibbs J with whom Stephen J agreed, 16 per Mason J with whom Aickin J agreed and, 20 per Murphy J. However, here, Mr Walsh had the opportunity to appear before Gilmour J at the trial after his Honour had refused him an adjournment: Registrar, Supreme Court of Norfolk Island v Walsh (No 3) [2017] NFSC 4 see esp at [13]. But, thereafter, Mr Walsh chose not to appear before his Honour in person or by a lawyer.
Mr Walsh’s assertion that he does not have to obey the payment orders made by this Court because they are tainted in some way is fundamentally contrary to authority. This Court is a superior court of record. Even if it makes an order for which it has no jurisdiction (which is not this case), such an order, while unreversed or without being set aside, is conclusive as to all relevant matters thereby decided: The Mayor and Aldermen of The City of London v Cox (1867) LR 2 HL 239 at 262 per Willes J, giving the unanimous advice of Blackburn J, Pigott B, Shee and Smith JJ that Lords Cranworth and Westbury (constituting the House) adopted. The corollary is that an order made by a superior court of record, including this Court, which the court had no jurisdiction to make, is not a nullity, but rather it is valid and binding until set aside on appeal or under s 75(v) of the Constitution: Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177–178 [22]–[23] per Gleeson CJ, 185–186 [52]–[53] per Gaudron J, 215–216 [151]–[152] per McHugh J, 235–236 [216] per Gummow J, 248–249 [255]–[257] per Kirby J, 279 [343]–[344] per Hayne and Callinan JJ.
In my opinion, none of Mr Walsh’s submissions have any substance whatsoever. I am deeply troubled by the fact that he continues to show a contumacious disregard for the authority of the Court and the validity of its orders, including the need for him to obey the payment orders. I am of opinion that I have little choice other than to send Mr Walsh, an 81 year old man who has less than perfect health, to prison, to vindicate the Court’s authority and orders. He appears to have persuaded himself that he is entitled to do what he likes, regardless of this Court’s orders (and apparently those made by the Federal Circuit Court) because he disagrees with the outcome of, and the circumstances in which the Registrar instituted, this proceeding .
Conclusion
I will convict Mr Walsh on the charges of contempt contained in the Registrar’s amended application in the proceeding filed on 24 August 2020. Given that at the present time there is a public health pandemic, and that Mr Walsh may need some time to reflect on the consequences that his continued, outrageous, contumacious behaviour have brought on him, I propose to impose a sentence of imprisonment, but suspend its enforcement for a period to enable Mr Walsh to remedy, fulsomely and properly, his egregious contempt. Accordingly, I sentence Mr Walsh to six months imprisonment but order that the sentence not be enforced before 17 December 2021. I will order him to pay the Registrar’s costs on an indemnity basis, and grant him liberty to apply to the Court to purge his contempt before the sentence is executed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 29 September 2021
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