Registrar, Supreme Court of Norfolk Island v Walsh (No 8)
[2021] NFSC 6
•23 December 2021
SUPREME COURT OF NORFOLK ISLAND
Registrar, Supreme Court of Norfolk Island v Walsh (No 8) [2021] NFSC 6
File number(s): SC 2 of 2016 Judgment of: RARES J Date of judgment: 23 December 2021 Catchwords: CONTEMPT OF COURT – application to purge contempt – whether appropriate to maintain sentence of imprisonment– where contemnor only partially purged contempt – where contemnor affected by ill health, frailty of mind and old age – where contemnor of limited means Cases cited: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Limited (1986) 161 CLR 98
Construction, Forestry, Mining and Energy Union v Boral Reserves (Vic) Pty Ltd (2015) 256 CLR 375
Hughes v Australian Competition and Consumer Commission (2004) 247 FCR 277
Northern Territory v Sangare (2019) 265 CLR 164
Number of paragraphs: 17 Dates of hearing: 26 November 2021, 10, 15 and 23 December 2021 Counsel for Applicant: Mr G Johnson Solicitor for Applicant: Sparke Helmore Lawyers Counsel for Respondent: Mr A Hands ORDERS
SC 2 of 2016 BETWEEN: REGISTRAR OF THE SUPREME COURT OF NORFOLK ISLAND
Applicant
AND: JOHN WALSH
Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
23 DECEMBER 2021
PENAL NOTICE
TO: John Walsh
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
THE COURT NOTES THAT:
1.On 10 December 2021 the respondent made the following apology to the Court in respect of seeking to purge his contempt, namely:
I, John Walsh of Brannagh, of the Brotherhood of St Laurence Aged Care, 160 Gold Street, CLIFTON HILL 3068, pensioner, make this unreserved and sincere apology to Chief Justice Besanko and Justice Gilmour of the Supreme Court of Norfolk Island and Justice Wigney of the Federal Court of Australia for the comments I made in the course of representing myself at the hearing on 24 September 2021. I compounded my contempt of court for wilfully failing to pay Fat Ping Sze and the Registrar of Norfolk Island Supreme Court by making scandalous allegations against the judges referred to above.
2.As at 23 December 2021, the amounts owing by the respondent pursuant to the orders:
a.made on 23 February 2018 and 1 March 2018 that he pay Dr Ping-Fat Sze AUD200 together with interest of AUD233.69 is AUD546.85 (the repayment amount).
b.made on 23 February 2018 that the respondent pay the applicant’s costs as taxed on 24 June 2019 in the sum of AUD143,755.67 is AUD167,109.67 (the costs amount).
THE COURT ORDERS THAT:
3.The amounts standing to the credit of the accounts with the Commonwealth Bank of Australia, Norfolk Island branch, the account numbers for which are in the document marked for identification 1 today (MFI-1):
a.in the name of United Pacific Corporation Pty Ltd - Australian Constitutional Trust
b.in the name of Dr John Walsh of Brannagh (the Walsh account)
be sequestrated by the applicant and paid to the account in the name of Supreme Court of Norfolk Island Administrative and Litigants Suitors Fund Account at Commonwealth Bank of Australia, Norfolk Island branch (the Registrar’s account) PROVIDED THAT the Bank retain so much of the amount in credit in the Walsh account as is necessary to meet any direct debit in favour of the Brotherhood of St Laurence due within 2 days of this order.
4.The applicant apply the amounts sequestrated pursuant to order 3, first in payment to Dr Sze of the repayment amount and the balance in part payment of the costs amount.
5.Not later than 10 January 2022 the respondent create a direct debit on the Walsh account to which his pension is paid so as to cause a payment of AUD100 per fortnight on each day after his pension is credited to the Registrar’s account, such direct debit to remain in place until payment in full of the costs amount has occurred.
6.Unless the Court otherwise orders, the respondent maintain payment of his pension only to the Walsh account so as to comply with order 5, until payment in full of the costs amount has occurred.
7.Should the respondent for any reason be unable to comply with Order 6, the respondent must give the applicant prior notice of the non-compliance, and an explanation for the non-compliance.
8.The parties have liberty to apply on three days’ notice.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
On 10 December 2021, the respondent, John Walsh, sought to purge his contempt of which I convicted him on 24 September 2021, namely:
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.
On 24 September 2021 I gave ex tempore reasons for those convictions and imposed a sentence of six months imprisonment to commence on 17 December 2021, unless the Court otherwise ordered. I allowed Mr Walsh the opportunity, that he took up, of applying to purge his contempt.
Evidence on this application
On 10 December 2021 Mr Walsh appeared by counsel for the first time. He verified his affidavit and the following apology:
I, John Walsh of Brannagh, of the Brotherhood of St Laurence Aged Care … pensioner, make this unreserved and sincere apology to Chief Justice Besanko and Justice Gilmour of the Supreme Court of Norfolk Island and Justice Wigney of the Federal Court of Australia for the comments I made in the course of representing myself at the hearing on 24 September 2021. I compounded my contempt of court for wilfully failing to pay Fat Ping Sze and the Registrar of Norfolk Island Supreme Court by making scandalous allegations against the judges referred to above.
In his evidence, Mr Walsh acknowledged that, earlier, he had not given a full and frank explanation of his assets. He said he had no hidden assets and that, since being made bankrupt in Australia, his only asset of substance was a Norfolk Island bank account in the name of United Pacific Corporation Pty Ltd – Australian Constitutional Trust, that he effectively controlled for his private purposes (the United Pacific account). That account had been affected by the freezing order that I had made on 17 June 2021 that expired on 6 August 2021.
Mr Walsh said that he believed he was innocent of the contempt charges but accepted the Court’s findings and sincerely apologised for his previously defiant conduct. He gave evidence that his only income is his aged pension of about $980 per fortnight, out of which he must pay for his accommodation at his aged care home, leaving him about $231 per fortnight for his expenses, such as his mobile phone, medical and pharmaceutical bills not covered by Medicare, and the like. He said that his only assets comprised his law library, reference books and 2.5 million shares in a failed business venture to establish a university on Norfolk Island.
Mr Walsh testified that he was in poor health, had glaucoma and needed cataract surgery, which would cost over $10,000. Mr Walsh noted that an organisation called “United We Stand Up” had approached the Registrar, the applicant in this proceeding, in relation to paying his judgment debts. However, as his counsel acknowledged 15 December 2021 and as appears to be still the position, that organisation, whatever it is, has not paid any of his debts.
During his cross-examination by the Registrar’s counsel, I formed the impression that Mr Walsh was not always able to focus on answering the questions that he was asked in a manner that is consistent with the frailty of mind often found in elderly persons. I am satisfied that he has expressed remorse and has acknowledged that his defiant, contumacious behaviour was wrong in the period between the time in February 2018 when Gilmour J ordered him to pay Dr Ping-Fat Sze and the Registrar’s costs, up to and including when I sentenced him on 24 September 2021. I accept Mr Walsh’s evidence that he now regrets that he neither obeyed nor attempted to comply with the orders made by Gilmour J, and now accepts that he was bound by the Court orders.
On 15 December 2021 I stayed the sentence of imprisonment that I imposed on 24 September 2021 that was to have commenced on 17 December 2021 until further order.
The parties’ submissions
Mr Walsh’s counsel asked on 10 and 15 December 2021 that I order the sum currently standing to the credit of the United Pacific account be sequestrated to ensure payment of the amount now due to Dr Sze and part of the Registrar’s costs. He seeks that I vacate the orders for imprisonment and indemnity costs that I made on 24 September 2021 in respect of the contempt proceeding. Mr Walsh argued that the indemnity costs order would hang over his head in circumstances where he has no assets from which to pay it and that he would be at risk of further charge of contempt if that occurs.
The Registrar opposed Mr Walsh’s application. He argued that Mr Walsh did not sufficiently purge his contempt. He contended that the fresh medical evidence that Mr Walsh suffers from depression and hearing loss does not excuse or explain his past contumacious conduct or provide a reason not to enforce the order for imprisonment. He submitted that the indemnity costs order was properly made and ought not be varied. He argued that the sentencing choices were limited and that imprisonment was still the only appropriate penalty, given Mr Walsh’s impecuniosity.
Consideration
Punishment for contempt serves two functions: first, enforcement of the process and orders of the Court, disobedience to which can be described as “civil contempt”, and secondly, the punishment of other acts which impede the administration of justice, such as, essentially, obstructing the proceedings of the Court while it is sitting or publishing comments on a pending case, which can be described as “criminal contempt”, as Gibbs CJ, Mason, Wilson and Deane JJ observed in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Limited (1986) 161 CLR 98 at 106. They held that while there is a theoretical distinction between civil and criminal contempt, the underlying rationale for the power is that it is “necessary to uphold and protect the effective administration of justice” (161 CLR at 107). Nonetheless, a proceeding, including punishment, for contempt is a matter that arises on the civil side of the Court’s jurisdiction: Construction, Forestry, Mining and Energy Union v Boral Reserves (Vic) Pty Ltd (2015) 256 CLR 375 at 388–390 [40]–[46] per French CJ, Kiefel, Bell, Gageler and Keane JJ.
Mr Walsh’s earlier contemptuous conduct was, as I found, a deliberate interference with the administration of justice, and warranted, at that time, a significant punishment. Here, Mr Walsh has now explained that he recognises his previous defiance and disobedience of the Court’s orders was wrong. As I have noted, he has not completely purged his contempt, but has sought to do so in a manner I consider to be sufficiently genuine, so that it is no longer appropriate to maintain a sentence of imprisonment to protect the effective administration of justice. I have taken into account his age, health, circumstances, and the apparent impact of the ageing process on how he gave his oral evidence. Mr Walsh has accepted that the moneys held in the United Pacific account should be sequestrated in order to meet, in part, the payments that, up to now, he has failed to make to Dr Sze and the Registrar, and I will make an order to achieve that end.
In Hughes v Australian Competition and Consumer Commission (2004) 247 FCR 277 at 292–293 [55], French, Emmett and Dowsett JJ identified the range of penalties available to the Court to punish for contempt as being to commit the contemnor to prison for an indefinite period of time; impose a fine for a wilful breach of an order or undertaking; impose a daily fine; order sequestration of assets of the contemnor and to suspend, on condition, any sentence of imprisonment that it might impose in respect of the contempt.
I am not persuaded that I should vary the indemnity costs order for the contempt proceedings. That is not to say that on the evidence, Mr Walsh necessarily would commit any further contempt by not paying the whole of those costs when taxed, given his financial circumstances of dependence on the aged pension. One condition I will impose is that Mr Walsh arranges for a direct debit to be made on his bank account into which his pension is paid for $100 per fortnight, to meet the already taxed but unpaid costs order made by Gilmour J.
One purpose of making orders to punish persons for contempt, as in sentencing for criminal offences, and imposing civil penalties, is to deter others from feeling they may engage in similar conduct. An order for costs in civil litigation is not punitive. Ordinarily, impecuniosity is not reason to deny a wholly successful party in litigation any entitlement to costs. There cannot be, in effect, one law for the rich and another for the poor. The fact that a person cannot pay the costs if ordered to do so does not create a situation where the justice of the case requires that a wholly successful party should be deprived of such an order. A party’s difficulties in complying with orders to pay money, including costs, can be accommodated by making orders such as instalment payments: Northern Territory v Sangare (2019) 265 CLR 164 at 175 [32], and 176–177 [34]–[35], per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ.
A failure by him in the future to pay costs when he is unable by reason of lack of financial resources or assets to do so may not be a contempt, if it does not signify any defiance of the Court’s authority as opposed to simply simply, an incapacity to meet his obligations.
Conclusion
Imprisonment is a sentence of last resort. Having regard to the significant change in Mr Walsh’s respect for the Court’s orders and authority, his willingness to have the United Pacific account sequestrated to meet, in part, his liabilities, and to submit to the payment of $100 per fortnight out of his pension, together with his genuine, but not wholly complete, attempt to purge his contempt, I am satisfied that it is appropriate to vacate the order for imprisonment made on 24 September 2021, and in lieu, make the orders I have foreshadowed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 12 January 2022
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