JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : THE COMMISSIONER FOR CONSUMER PROTECTION -v- ARMSTRONG [No 3] [2014] WASC 285 CORAM : BEECH J HEARD : 5 AUGUST 2014 DELIVERED : 13 AUGUST 2014 FILE NO/S : CIV 1611 of 2012 BETWEEN : THE COMMISSIONER FOR CONSUMER PROTECTION Plaintiff
AND
FAY MARIE ARMSTRONG
Defendant
Catchwords:
Courts and judges - Contempt of court - Hearing proceeding in the absence of alleged contemnor - Reasons for judgment published - Whether alleged contemnor should be given leave to reopen findings of contempt
Practice and procedure - Hearing in absence of party - Application for leave to reopen Legislation:
Nil
Result:
Leave to reopen granted
Category: B
Representation:
Counsel:
Plaintiff : Mr M G S Crowley
Defendant : In person
Solicitors:
Plaintiff : Department of Commerce
Defendant : In person
Case(s) referred to in judgment(s):Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 6) [2013] FCA 1112Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300De L v Director-General, New South Wales Department of Community Services [No 2] (1997) 190 CLR 207Minister for Education v Klein [2005] WASCA 185 (S)R v Jones (1998) 72 SASR 281Ronowska v Kus (No 2) [2012] NSWSC 817; (2012) 221 A Crim R 261Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256The Commissioner for Consumer Protection v Armstrong [No 2] [2014] WASC 167Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672Introduction 1 After a hearing in Ms Armstrong's absence, on 19 May 2014, I published reasons for decision finding that Ms Armstrong was guilty of a contempt by disobeying orders made on 22 August 2012.1
2 Ms Armstrong applies for leave to reopen my finding that she committed a contempt of court. For the reasons that follow, I would grant leave to Ms Armstrong.
Background
3 On 12 May 2014, I heard the Commissioner's application for an order that Ms Armstrong be committed for contempt of court. Ms Armstrong did not appear.
4 The background was summarised in my reasons of 19 May 2014.2
5 On 7 November 2013, Ms Armstrong was personally served with a notice of motion that she be committed for contempt, and affidavits in support.
6 On 21 November 2013, Ms Armstrong filed an affidavit in opposition to the application. The affidavit stated Ms Armstrong's address as 18 Adela Place Spearwood.
7 On 21 November 2013, the matter came before me for directions. Ms Armstrong appeared at the directions hearing. Directions were made, and it was ordered that there be a further directions hearing on 19 December 2013.
8 On 19 December 2013, Ms Armstrong did not appear. On that day I made further directions for the filing of submissions and affidavits by each party. The matter was listed for further directions on 13 March 2014.
9 By letter of 19 December 2013 sent to Ms Armstrong at 18 Adela Place Spearwood, the Commissioner enclosed the directions made on 19 December 2013, including that there be a directions hearing on 13 March 2014.
10 On 13 March 2014, I made orders that the matter be listed for final hearing for a duration of three hours on a date to be fixed and that the parties provide their unavailable dates for hearing in May 2014 by 20 March 2014.
11 On 21 March 2014, the matter was listed for hearing on 12 May 2014.
12 By letter of 25 March 2014, the Commissioner wrote to Ms Armstrong at 18 Adela Place, Spearwood, notifying her that the application was listed for hearing on 12 May 2014.
13 The Commissioner filed submissions. Ms Armstrong did not file any submissions, and did not appear at the hearing on 12 May 2014.
14 On 19 May 2014, I published reasons for decision.3 I also directed that the parties file submissions as to penalty. Copies of the directions made were sent by letter from the Commissioner to Ms Armstrong at 18 Adela Place Spearwood.
15 No submissions were received from Ms Armstrong and she did not appear at the hearing on penalty on 1 August 2014. I reserved my decision on penalty.
16 On 4 August 2014, Ms Armstrong contacted the court and indicated, in substance, that she had been unaware of the hearings and wished to defend the contempt allegation.
17 On 5 August 2014, Ms Armstrong filed an affidavit in support of an application to reopen the question of her guilt of the contempt.
Ms Armstrong's affidavit
18 In her affidavit, Ms Armstrong deposes to the following:
(a) she was not served with all the court documentation by the Commissioner; (b) she did not receive any notification of court dates from the Commissioner;
(c) she was unaware that the application had proceeded to hearing until she saw a TV news story in the evening of Friday 1 August 2014; and
(d) she denies that she engaged in the conduct the subject of the contempt allegation.
The Commissioner's submissions 19 The Commissioner submits that:
(a) the power of the court to reopen a decision it has made is an exceptional one, to be exercised with great caution; (b) that power must be exercised taking into account the public interest in the finality of litigation;
(c) generally, the court will grant leave to reopen only if the applicant can demonstrate that by accident and without fault on his part he has not been heard; and
(d) it cannot be said that Ms Armstrong has not been heard without fault on her part.
The disposition of the application 20 I accept the general legal principles in proposition (a), (b) and (c) of the Commissioner's submissions. In this case, although reasons for decision have been published, no perfected order has been made. Prior to an order being perfected, a court can review, correct or alter its judgments.4 The public interest in the finality of litigation weighs heavily in the exercise of the discretion of whether to grant leave to reopen.5 A court is generally prepared to reopen an unperfected judgment where an applicant can show that 'by accident with fault on his part he has not been heard'.6
21 Ms Armstrong has not satisfied me that, without fault on her part, she has not been heard. Her affidavit says that she did not receive the letters sent by the Commissioner notifying her of the court dates. Although not on oath, in her oral submissions she asserted that the papers must have gone astray in circumstances where a bank had taken possession of her property, and she had trouble retrieving mail and other documents from the property thereafter. Accepting that that is so, nothing in Ms Armstrong's evidence or submissions explains her failure to make any contact with the Commissioner or the court in circumstances where she knew that the contempt proceedings had been commenced.
22 However, there is no absolute rule that the court will permit reopening only if the applicant demonstrates that by accident and without fault on his part he has not been heard. The discretion is a broad one, to be exercised in all the circumstances of the case in the interests of justice.
23 In my view, the criminal nature of these proceedings, as proceedings for contempt, bears heavily in the exercise of the discretion of whether to permit the reopening.
24 As I have said, contempt proceedings are criminal in character. Proceedings in the absence of the alleged contemnor is an exceptional course. The court has power to permit that to occur, but the discretion is one to be exercised sparingly.7 That power may be exercised where a court concludes that the accused has made a choice not to appear to contest the proceedings and, in effect, therefore waived his or her right to appear.8 That was the basis on which I proceeded in Ms Armstrong's absence in finding that she had committed a contempt.9 That reflected the conclusion I reached on the material then before me.
25 The Commissioner submits that the application should be rejected because Ms Armstrong has engaged in a 'forensic strategy' by which she 'elected to exercise a right of silence and to put the [Commissioner] to proof in the criminal proceedings'.10 In light of Ms Armstrong's affidavit, I am unable to draw such conclusions. Ms Armstrong says in her affidavit that she was unaware of the court hearings. There was no cross-examination in respect of that evidence. In my view, Ms Armstrong's evidence to this effect cannot be summarily dismissed for the purposes of this application.
26 In these circumstances, I am satisfied that it is in the interests of justice for the question of whether Ms Armstrong committed the alleged contempt to be reopened.
Conclusion
27 For these reasons, I would grant leave to reopen the question of whether Ms Armstrong committed the contempt alleged by the Commissioner.
28 Directions should be made for the filing of any further material to enable the determination of the question of whether the contempt was committed.
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1The Commissioner for Consumer Protection v Armstrong [No 2] [2014] WASC 167.2TheCommissioner for Consumer Protection v Armstrong [No 2] [8] - [18].3The Commissioner for Consumer Protection v Armstrong [No 2].4Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256, 265; De L v Director-General, New South Wales Department of Community Services [No 2] (1997) 190 CLR 207, 215.5De L (215); Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, 302; Minister for Education v Klein [2005] WASCA 185 (S) [7].6Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672, 684; Autodesk (302), (308), (312).7Ronowska v Kus (No 2) [2012] NSWSC 817; (2012) 221 A Crim R 261 [51]; Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 6) [2013] FCA 1112 [16].8R v Jones (1998) 72 SASR 281, 295; Australian Competition and Consumer Commission v Chaste Corp [16]; Ronowska v Kus [53].9TheCommissioner for Consumer Protection v Armstrong [No 2] [20].10 ts 59.