Saltalamacchia v Parsons
[2000] VSCA 83
•15 May 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.5220 of 1999
| JOSEPH SALTALAMACCHIA | |
| (Prothonotary of the Supreme Court of Victoria) | Appellant |
| v. | |
| SIMON HARRY PARSONS | |
| Respondent |
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JUDGES: | PHILLIPS, CHARLES and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 May 2000 | |
DATE OF JUDGMENT: | 15 May 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 83 | |
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Contempt of Court - Oral communication of ex parte injunction - Words spoken by respondent out of Court, in abuse of judge - Whether contempt of Court.
Appeal - Contempt of Court - Court's acting of own motion under Rule 75.07 - Query whether appeal lies from dismissal of Prothonotary's application: Public Prosecutions Act 1994, s.46, Supreme Court Rules, Chapter I, Rule 75.07.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr N.J. Young QC | Victorian Govt. Solicitor |
| For the Respondent | Ms F.P. Hampel QC with Mr F.E. Farrow | Simon Parsons & Co. incorporating Jeffrey John & Associates |
PHILLIPS, J.A.:
On 8 November 1999 Cummins, J. dismissed an application by the Prothonotary for an order that the respondent to the application be adjudged guilty of contempt for the conduct specified in the summons. That conduct consisted of words spoken by the respondent on 23 April 1999 at the respondent's property in Yarragon South Road, Yarragon, when he, himself a solicitor, was formally informed by another solicitor in the presence of two police officers and a liquidator of the terms of an injunction granted that day against him by Beach, J. in the Practice Court, in his absence. It is not said that the respondent failed to comply with the order made but he did, to put it shortly, abuse the judge.
On 6 May 1999 Beach, J. directed the Prothonotary under Rule 75.07(1) to apply on summons, as he did, and the application was heard by Cummins, J. on 1 and 5 November 1999. On 8 November 1999 his Honour found that although the words spoken by the respondent were offensive, the respondent had not been guilty of contempt of court. His Honour gave detailed reasons for judgment and dismissed the application as already stated.
The Prothonotary filed notice of appeal on 19 November 1999 and the appeal has now come on for hearing. The respondent has objected that the appeal is incompetent and thus far we have heard counsel for the Prothonotary only, first in justification of the appeal, and then on the merits. In my opinion the appeal, if it is competent, should be dismissed; if the appeal is incompetent, the like result must follow.
On the question of competence we have heard an interesting argument from Mr Young. He submitted that the words of ss.10 and 17(2) of the Supreme Court Act 1996 were so clear as to admit of no other conclusion but that an appeal lay, and that the decision of the Full Federal Court in Thompson v. Mastertouch TV Service Pty. Ltd. (No.3)[1] was distinguishable, the language of the provisions of the Federal Court Act, which were there under consideration, being too different to allow of that decision's application here, especially in the light of s.17A(3) of the Supreme Court Act which, he submitted, overcame a factor which was critical to the High Court's approval of Mastertouch in Davern v. Messel[2]. Mr Young submitted that even after acquittal of a defendant on a charge of contempt a right of appeal was conferred by s.17(2).
[1](1978) 38 F.L.R. 347
[2](1984) 155 C.L.R. 21
As a matter of general principle that submission may or may not be correct: we have not yet heard the opposing argument and so I say no more about it. In my opinion, the difficulty for Mr Young lies elsewhere in this case; it lies in the very special circumstances attending the application.
As I have said, this application was made by the Prothonotary and necessarily it was characterised as the court acting summarily of its own motion, for unless that was so the application was precluded by s.46 of the Public Prosecutions Act 1994. Although since repealed, that section was in force at the relevant time and the application made by the Prothonotary could be justified only as within the exception in sub-s.(5)(c): see Broken Hill Proprietary Company Ltd v Dagi[3] and Re Colina: Ex parte Torney[4].
[3][1996] 2 V.R. 117 at 145-7, 164 and 178-9
[4](1999) 73 A.L.J.R. 1576 at 1580 per Gleeson C.J. and Gummow, J.
The application was thus not one made by a disgruntled litigant against its opponent, nor was it an application at the instance of the Attorney-General or the Director of Public Prosecutions, both of whom have independent functions to perform. This application, made in the Trial Division, was by the court's own officer and as such was properly regarded as the court itself acting in the matter. In those circumstances, whether or not a right of appeal is otherwise created by s.17(2) even after acquittal for contempt (as to which I express no opinion) it is, I think, particularly difficult to see how there can be any right of appeal from the dismissal of this application at first instance. If, as I have said, the court is acting of its own motion in making the application in the first place, albeit by means of the Prothonotary, can it be said that the court itself can appeal to itself, as it were (even if in another division) when the court has decided that no contempt has been committed? Suffice it to say that as at present advised I see some difficulty in giving an affirmative answer to that question in the absence of any provision specifically making that right of appeal plain. But I pass that by because in my opinion, even if competent, this appeal fails on the merits.
I need not set out the facts surrounding the alleged contempt, for they are all set out comprehensively in the reasons for judgment given on 8 November 1999 and no challenge was made by counsel for the Prothonotary to any of the facts found below. It was argued instead that his Honour had failed to have regard to the principles that were truly germane to the decision of contempt or not.
Having listened very carefully to the argument I am not persuaded that his Honour fell into error. At p.9 of the reasons for judgment his Honour said:
"The words spoken by the defendant do not undermine confidence in the administration of justice."
By that I understand his Honour to have meant that the words spoken by the defendant were not such as to undermine confidence in the administration of justice. So read, what his Honour said is consistent with authority, accepting Mr Young's submission that it is not the actual undermining of confidence that matters, but merely the tendency to undermine.
That these words, when spoken by the defendant, did not have that tendency can be understood because of the particular context in which the words were spoken. That context is very important to the decision in this case. First, the words were spoken to a small audience, and I have already described the audience. Secondly, it can scarcely be supposed that the words spoken were calculated to attract any further publication; it was the solicitor to whom the words were presumably addressed who initiated the suggestion of telling the judge. (Cases in which the words in question have been spoken amid the glare of publicity can be distinguished.) It seems to me that what was said can properly be characterised as the immediate and unpremeditated response of the respondent to the first notification to him of the injunction which had just been granted against him. The words spoken were an emotional response to the communication being made and there was nothing in them, I think, of intimidation or defiance; just vulgar abuse. It was suggested by counsel that the words were a colourful means of asserting the futility of enjoining the respondent against doing what he had already completed (at least for the day) but of course to assert that futility would not per se be contempt. True it is, a solicitor should have known better than to let his tongue run away with him in the way that happened here but it seems to me, after due consideration of the arguments that were put so ably by Mr Young, that on the proper test of what is and what is not contempt of court, there was no error below.
In short I agree with Cummins, J. that for the reasons he gave this was not a contempt of court.
Accordingly, I would dismiss the appeal.
CHARLES, J.A.:
I agree.
BUCHANAN, J.A.:
I also agree.
PHILLIPS, J.A.:
The order of the court will be appeal dismissed with costs.
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