Rogerson v Tchia

[1995] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D2 of 1995

B e t w e e n -

ANDREW GORDON ROGERSON

Applicant

and

ADOLPHO TCHIA

First Respondent

TCHIA NOMINEES PTY LTD

Second Respondent

SKYKYM PTY LTD

Third Respondent

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 1995, AT 10.06 AM

Copyright in the High Court of Australia

______________

MR J. McCORMACK:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Close & Carter)

I understand there is no appearance being made in this matter on behalf of the respondents.

BRENNAN CJ:   Yes.  The Deputy Registrar certifies that he has been informed by Mildrens, solicitors for the respondents in this matter that the respondents do not wish to be represented at the hearing of the application for special leave to appeal but will submit to any order of the Court save as to costs.

MR McCORMACK:   It is submitted, your Honours, this is a case where there be a grant of special leave because of the general or public importance of the issue whether a court can lawfully proceed to hear an allegation of contempt, not in the face of the court, when no charge has been put to the alleged contemnor or when the allegation of contempt has not been specified.  It is not couched in precisely those terms in the summary of argument or in the leave book but it is, your Honours, a development of the point numbered (h) which appears in the applicant’s summary of argument on page 1.

There are, I submit, two ancillary questions tied up with the first one and they are the proposition numbered (h) on page 1, that is the nature of a contempt proceeding in respect of contempt not in the face of the court, whether it is properly to be regarded as an affront to the court’s authority or a form of execution available to a party to litigation, in that if he fails to comply with strict procedural rules, he suffers because he has not succeeded in protecting and enforcing his rights by the means set out in the rules of court.  Of course, that proposition arises from the observations of the Master of the Rolls, Lord Green in Gordon v Gordon.

BRENNAN CJ:   What do you say about the course of events as detailed by the Chief Justice in his judgment at the bottom of page 91 and the top of page 92 where the procedure which was then adopted on the second day of the hearing was consented to by you?

MR McCORMACK:   Yes.  I suppose the first argument in answer to that is, was there a proceeding that could be the subject of any consent in any event?  And the second answer to that, your Honours, is that it was not a waiver in any proper sense of the word in the sense that there had been no understanding of what was involved by counsel who appeared on behalf of the appellant at that time.

BRENNAN CJ:   What do you mean by that?

MR McCORMACK:   Your Honour is referring, is it, to page 92?

BRENNAN CJ:   Page 91 to page 92.

GUMMOW J:   Page 92 point 3 and point 4.

MR McCORMACK:   Yes, I pick up the observation of the Court.  That happened, your Honour, at a time in the proceedings when there had been no copy of the transcript of the previous day’s proceedings where the appellant had appeared in person and put Mr Riley into the witness‑box.  It occurred at a time when the court and counsel for the respondents were both aware, as they must have been, that the evidence of Mr Riley in fact admitted the charge that was subsequently formulated.  Of course, further to that, the charge that was filed with the court in a summons on, I think, 4 September, incorporated in fact some of the evidence of Mr Riley.  So that regardless of the fact that there was no opposition at that time, there certainly was also a significant lack of knowledge as to events that - - -

BRENNAN CJ:   It is not a question of no opposition.  It is a question of the procedure that was then going to be adopted for the purpose of disposing of the matter before the judge.  The judge was proposing, for your consideration, whether or not this irregularity was to be, by common consent, the procedure that was to be followed.  What your state of knowledge was was not to be imputed to the judge.

MR McCORMACK:   No, but the judge did have a state of knowledge and counsel for the respondents had a state of knowledge that was definitely far more advanced than that of counsel for the appellant on the occasion.

BRENNAN CJ:   That was something, no doubt, which counsel for the appellant must have appreciated.

MR McCORMACK:   Yes, but it was at a time, your Honour, when the appellant’s counsel appeared in front of the court he indicated he was not equipped to argue any question in relation to contempt, that his researches prior to his attendance at court had been devoted to the question of the caveat that had been filed against the land owned by the respondents and the matter went from there.  Counsel for the respondents urged that the matter proceed notwithstanding there was no summons and it was only after this event occurred that respondents’ counsel became aware of the provisions of Order 75 and, indeed, it would appear both the court and respondents’ counsel likewise became only aware of Order 75 and the strict provisions applicable at that time. 

Of course, regardless of any other consideration, I put it to your Honours that if there was no proceeding constituted unless there was a summons issued, then that failure to object by appellant’s counsel was not determinative of anything.  I would put it to your Honours the proceedings at the stage when that lack of objection was proffered, the proceedings had gone so far off the rails at that time that it was a matter unable to be rectified.  Mr Riley had given evidence as a result of the request of the appellant in person and also the appellant in person had appeared at the court in circumstances where, your Honours, he was given to understand in the facsimile message that was transmitted to him that this is a matter where the court required his attendance.  Now, that was incorrect, as Mr Justice Kearney pointed out quite accurately in his judgment at page 107 of the application book.

Now, going on from there, your Honours, there are certain inaccuracies that I think it is important, in case this Court has regard to them in reaching its decision.  The learned Chief Justice, at page 93 of the application book, observed that service of the order was not a ground of appeal but, of course - it is appeal ground No 3 which appears at page 57 of the application book.  The Chief Justice also observed that the particulars in the final amended summons did not depart from the Tchia affidavit but, in fact, the summons at page 20 incorporates material that was not in the Tchia affidavit, and that is a matter that is manifest from looking at the affidavit.  The summons incorporated material from Mr Riley.

Justice Kearney observed, at page 100, that the appellant knew the gist of the allegations as made clear from the affidavit of Tchia but, of course, that could not be so because the affidavit of Tchia did not incorporate all of the allegations.  Now, Justice Kearney leaves the standard of proof in contempt somewhat ambiguous in his observations.  The suggestion is made at, I think, page 93 of the application book as to the standard of proof.

GAUDRON J:   The trial judge proceeded on the criminal stand.

MR McCORMACK:   He proceeded on the criminal one.  It is just that Justice Kearney made an observation that is mildly ambiguous but suggests that counsel for the appellant accepted, in front of the Appeal Court, that the standard of proof was less than beyond a reasonable doubt.  His Honour the Chief Justice made it quite clear during the course of the appeal - and it is not in front of your Honours now - that the standard of proof was beyond a reasonable doubt and there was no argument about that any further.

GAUDRON J:   Mr McCormack, does your argument, in essence, boil down to this, that for the purposes of contempt proceedings, the rules of natural justice are not satisfied unless from the very beginning of the proceedings the person charged either knows or is in a position to know the precise allegation against him or her?

MR McCORMACK:   I do, your Honour, yes.

GAUDRON J:   Do you not have to deal with whether or not there was that knowledge?

MR McCORMACK:   I am sorry?

GAUDRON J:   In this case, do you not have to deal with whether it can be shown that your client had that knowledge at all times?

MR McCORMACK:   Yes.

GAUDRON J:   That seems to be the basis on which the Court of Appeal determined against you, namely, that at all stages he knew what was in issue and what was put against him.

MR McCORMACK:   Yes, I can deal with that, your Honour.  As to the matters that the appellant could not have been aware of, the Appeal Court majority proceeded on the basis that the affidavit of Mr Tchia contained all the material in respect of which the application was made.  In fact, the amended summons incorporated additional material to the affidavit of Mr Tchia.  That, admittedly, came from the lips of Mr Riley who was put into the witness-box, of course, before any charge was formulated but at a time when the appellant thought that he had been called to the court by the judge, when in fact he was not and, secondly, when he had been advised by respondents’ counsel that he was there for the purpose of a contempt application.  That is before he rose to his feet.  So, rather unwisely, but he did proceed then to, after making some applications for adjournment, put Mr Riley into the witness-box.

GAUDRON J:   But he would not have to know the evidence against him.   He would only have to know the charge and the nature of the case to be made.

MR McCORMACK:   As to that, with respect, your Honour, we say that it is essential that the charge be formulated and served and we rely on, first of all, the rules of court and, secondly, the fact that in a contempt situation the rules should not be varied or departed from unless there can be established that no injustice has been caused to the party in respect of whom they are being departed from.  Now, we say in this case - - -

BRENNAN CJ:   But is not that exactly what the Full Court decided?

MR McCORMACK:   With respect, your Honour, no.  The Full Court did say that, yes.  They said that he was not occasioned any prejudice because of the way the matter proceeded.

BRENNAN CJ:   Now, is that not the real problem that you have?  If there were any prejudice then, one assumes, there would have been an appeal allowed in the court below.  The court said having regard to the way in which the matter proceeded, there was no prejudice.  Now, you are then seeking special leave to appeal in order that this Court may canvass again the course of events before the trial judge to decide whether or not there was prejudice.

MR McCORMACK:   Yes.  The prejudice, we say, your Honour, if I go through them item by item quite quickly:  first of all, the way the appellant was summonsed to the court leading him to believe the judge was requiring his attendance, and then he had certain hearsay information but no other documentary information.  He also had some material faxed through from the respondents’ solicitors and he made a number of adjournment applications, there being no material in front of the court then and no summonses in respect of the matters other than the summonses, the subject of the original service attempts.

I might mention to your Honours that there is no evidence of service of the court order at any time.  The only evidence that was relied upon in the proceedings was that of the affidavit of Price which simply talks about a bundle of documents attached to a letter and the evidence of Naismith which simply reproduces - she was shown a letter, “Is this the letter that you offered to the appellant with documents attached to it?”, and she responded, “Mm”, and nothing more, nothing less.  Now, it was not an answer, “Yes” or “No”.  And that is the only material that can be relied upon for service of the order.

In any event, the appellant then put the witness Riley into the witness-box, still being unaware of the nature of any charge, and established, in effect, through his own mouth, the essence of the contact that was prohibited by the court order.  Then his counsel comes in next day and, of course, is unable to get proper instructions from him because of his mental state.  The court determines the matter must be heard urgently, which is counselled against, of course, in the matter of Reg v Keeley; Ex parte Justice Brooking, the observations of Justice Stephen and Justice Murphy.  His counsel then cross-examines Tchia after a brief look at the transcript and by which time, of course, he had a bundle of affidavits in his possession.  Naismith gave her evidence without being cross‑examined when it was not apparent at that time how the aspect of service was vitally important to the proceedings and her evidence related to the question of service.

The appellant’s counsel was preoccupied before the hearing with matters of sustainability of the caveat and drawing the consent orders and had been instructed by his client that contempt was not a live issue before he arrived at the court.  With respect, your Honours, the applicants, that is, the respondents, were not sure of what the charge was, witnessed the fact that it was not proffered, notwithstanding one summons was issued on the 3rd - that was not served or even offered to appellant’s counsel.  Another summons was issued on the 4th, an amended summons, and that was made the subject of service.  I think that respondent’s counsel made observations to the court that this is a matter where he had taken advice before proceeding.

The result, incidentally, which I think that the Court must take into account, of a finding of contempt in this case, notwithstanding what we say is the irregular procedure, is that in the case of the appellant being at the time a practitioner of the Supreme Court of the Northern Territory, were totally devastating so that he has been adjudged guilty of contempt and had a fine imposed on him which is, of course, the subject of review, without being personally served with a summons for the contempt, notwithstanding the rules of court in that respect.  I could suggest to your Honours that if the inferences were drawn against him as a lawyer, as they were in the application book at page 47, I think it is, at the top of the page, and if appellant’s counsel was aware of the importance of Riley’s evidence before, then there could not have been any informed consent by appellant’s counsel.

BRENNAN CJ:   Mr McCormack, if special leave were granted in this case and the appeal was successful, the matter would then go back to the Supreme Court.

MR McCORMACK:   I would suggest, your Honour, this trial has got to a stage where it could not be run again.  Evidence has been given that, we say, should not have been given or would not have been given if the appellant had availed himself of his rights.  That evidence, on a retrial, would not be admissible, we suggest.  That is, the evidence of Riley would not be admissible.  The evidence of Rogerson, arguably, is inadmissible because of the state of play at the time when he gave his evidence and that the latter would be unlikely to be able to be heard because of the prejudice that has already been occasioned to the appellant with the hearing and the judgment and the Court of Appeal findings.

Also, another matter  - - -

BRENNAN CJ:   I think your time has expired, Mr McCormack.  Have you much more that you wish to say?

MR McCORMACK:   One additional aspect, your Honour, that when the appellant did turn up at court he was told that he was appearing to be dealt with for contempt and he found himself immediately under fire for questions of professional standards in relation to service and the fax machine and locking the doors and things of that nature and he was more or less on the defensive immediately and then observations were made from the Bar table by respondents’ counsel on matters which were not relevant to the issue of the contempt, that is the talk about the fact of the locked door and the fax machine being turned off.  That is a fact that I think the Court needed to be aware of.

BRENNAN CJ:   Thank you, Mr McCormack.  The Court will adjourn briefly in order to consider what course it should take.

AT 10.29 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.39 AM:

BRENNAN CJ:   What I am about to say is the opinion of the majority of the Court.  The importance of procedural regularity in proceedings for contempt of court is undoubted for the consequences of conviction require that the respondent in the proceedings have full knowledge of the issues to be determined and a reasonable opportunity to deal with those issues.  In this case the respondent was invited to waive, and waived, compliance with procedural requirements in circumstances which, in the opinion of the Full Court, brought home to the respondent, the present applicant, knowledge of the issues to be determined.  There is no doubt that, if that be right, the present applicant had a full opportunity to deal with the issues.  This case is thus not a suitable vehicle for determining the substantive procedural protection essential to the proper conduct of committal proceedings.  For those reasons special leave will be refused.

MR McCORMACK:   If the Court pleases.

AT 10.40 AM THE MATTER WAS CONCLUDED