TasBuild Ltd v Jones
[2014] TASSC 28
•22 May 2014
[2014] TASSC 28
COURT: SUPREME COURT OF TASMANIA
CITATION: TasBuild Ltd v Jones [2014] TASSC 28
PARTIES: TASBUILD LTD (ACN 082 066 939)
v
JONES, Graeme
FILE NO: 29/2014
DELIVERED ON: 22 May 2014
DELIVERED AT: Hobart
HEARING DATE: 8 May 2014
JUDGMENT OF: Porter J
CATCHWORDS:
Procedure – Inferior courts – Tasmania – Local courts – Magistrates Court (Civil Division) – Practice – Trial and judgment – Civil contempt – Provision giving the Magistrates Court "the same powers in relation to the enforcement of its judgments and orders as the Supreme Court" – Provision means that Magistrates Court has the same powers as the Supreme Court to deal with contempt of court by a failure to comply with a judgment or order.
Magistrates Court (Civil Division) Act 1992, s31A.
Witham v Holloway (1995) 183 CLR 525, considered.
Aust Dig Procedure [420]
REPRESENTATION:
Counsel:
Appellant: D J Barclay
Respondent: In person
Solicitors:
Appellant: Page Seager
Judgment Number: [2014] TASSC 28
Number of paragraphs: 46
Serial No 28/2014
File No 29/2014
TASBUILD LTD (ACN 082 066 939) v GRAEME JONES
REASONS FOR JUDGMENT PORTER J
22 May 2014
Introduction
This is an appeal from a decision of Magistrate Brown concerning the scope of s31A of the Magistrates Court (Civil Division) Act 1992 (the Act), and the powers of the Magistrates Court (Civil Division). The section reads as follows:
"31A Enforcement of judgments and orders
The Court has the same powers in relation to the enforcement of its judgments and orders as the Supreme Court has in relation to the enforcement of its judgments and orders, unless otherwise provided by the rules of court."
In proceedings in the Magistrates Court (Civil Division) (the Court), TasBuild Ltd sought the punishment of the respondent, Mr Jones, for contempt of court by failing to comply with a magistrate's order. Magistrate Brown ruled that s31A did not vest the Court with the power to punish persons for contempt for non-compliance with its orders or judgments, and said that absent a contempt in the face of the court, a magistrate had no power to punish a contemnor. TasBuild's application against Mr Jones was dismissed.
TasBuild has appealed against that dismissal, arguing that as the Supreme Court has the power to punish for a "civil" contempt, s31A ensures that the Court is likewise armed. For the reasons which follow, the appeal should be allowed.
Background
It is unnecessary to recite much detail. TasBuild is a company declared by the relevant Minister to administer the long service scheme established by the Construction Industry (Long Service) Act 1997. Mr Jones traded as Graeme Jones Electrical, and was regarded as an employer within the meaning of that Act.
Throughout 2011, TasBuild pursued Mr Jones for registration as a relevant employer, and unsuccessfully sought documents and records from him. On 5 March 2012, TasBuild applied to a magistrate for an order against Mr Jones in the following terms:
"That, pursuant to Section 8(1)(a) of the Construction Industry (Long Service) Act 1997 the Respondent produce to the Applicant all records and information within its custody, power or control as requested in the Notice to Supply Records and Information served on the Respondent on the 16th of September 2011, including to produce to the Court the completed Notice to Supply Records and Information within fourteen (14) days of the date of this Order."
The order was made on 16 April 2012. In addition, Mr Jones was ordered to pay the costs of the application which were later taxed at $1367.20, and a certificate was issued to that effect. Apparently not having complied with the order nor paid the costs, on 5 August 2013 TasBuild applied to the Magistrates Court for orders as follows:
"1 The Respondent be punished for contempt of Court for:
afailing to comply with the order of Magistrate Mollard dated 16 April 2012; and
bfailing to pay costs due to the Applicant pursuant to a certificate of assessment dated 24 May 2012.
2The Respondent be:
a fined an amount to be determined by the Court; and
b committed to prison until such time as he complies with the order dated 16 April 2012 and the certificate of assessment dated 24 May 2012."
The application was heard in November 2013, and on 17 December 2013, Magistrate Brown dismissed it and published reasons for doing so.
The magistrate's reasons
The magistrate noted that superior courts have an inherent jurisdiction "to punish a recalcitrant litigant who fails to comply with its orders or judgment", but observed that the Civil Division of the Magistrates Court had no such inherent power. "It has no inherent jurisdiction of any sort." His Honour noted that the only express reference to the power of the Magistrates Court to deal with contempt is to be found in s17A of the Magistrates Court Act 1987. That provides as follows:
"17A Contempt of Court
(1) If a person —
(a) wilfully misbehaves himself before the Magistrates Court sitting in exercise of its jurisdiction under this or any other Act;
(b) wilfully interrupts or obstructs any proceedings before the Court; or
(c) is guilty of wilful prevarication in giving evidence before the Court —
that person shall be deemed guilty of contempt of court, and the magistrate sitting in the Court may, by oral order, direct that person to be removed from the Court or other place, and to be taken into custody and may, by warrant, commit that person to imprisonment for a period not exceeding 3 months or may fine him an amount not exceeding 5 penalty units.
(2) Where a person is guilty of misconduct referred to in subsection (1), the magistrate may, if he or she thinks fit, accept an apology for the misconduct, and may remit any penalty or punishment imposed either wholly or in part."
His Honour observed that s17A is concerned with what is commonly referred to as contempt "in the face of the court", and that the "provision mirrors the powers of the Magistrates Court in its Criminal Division as set forth in [s25] of the Justices Act 1959 … ."[1] Section 25 of the Justices Act sets out the powers of justices in similar circumstances to that outlined in s17A.
[1] There does not seem to be any Act or rule which formally establishes the "Criminal Division" of the Magistrates Court. The creation of divisions by Act or rule is respectively provided for in ss3B and 15AE(1)(a) of the Magistrates Court Act.
The magistrate went on to discuss the distinction between civil contempt and criminal contempt, and "the unsatisfactory nature" of that distinction, referring to Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 109.[2] His Honour also referred to the judgment of Deane J in Hinch v Attorney-General for Victoria (1987) 164 CLR 15 at 49, in which the anomalies associated with the distinction between the two types of contempt were referred to. Proceedings against individuals which can result in punishment by way of fine or imprisonment were described as ones which should be viewed as being "essentially criminal in nature".
[2] Per Gibbs CJ, Mason, Wilson and Deane JJ.
The magistrate also referred to Witham v Holloway (1995) 183 CLR 525 in which Brennan, Deane, Toohey and Gaudron JJ, having referred to the Mudginberri and Hinch cases, said in a passage at 534 set out by his Honour:
"Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as 'punitive' and others as 'remedial or coercive'. Punishment is punishment whether it is imposed in vindication or for remedial or coercive purposes."
The magistrate said:
"It is clear that these proceedings are truly criminal in nature, or to use the language of heading used in Part 36 of the Rules of the Supreme Court, 'penal' in nature. Whilst remedial or coercive aspects of such an application are present (and can conveniently be described as being related to 'enforcement') these proceedings must been seen as criminal or penal in nature."
Following on from that, his Honour then turned to the meaning of s31A, and said:
"If then these proceedings are criminal or penal, and not simply remedial with a punitive element as incident to that, does s31A of the Act give the court power in the nature of criminal or penal in nature?[sic] It does not expressly do so. Does the provision by necessary implication give this court that power? Perhaps this question is best answered by considering whether, if the provision does not give the court a criminal or penal power, does it nevertheless still serve to give the court meaningful powers. In my view it clearly does. It gives the court the very considerable enforcement powers of the Supreme Court (of course in conjunction with its own powers set out under its own rules). Therefore to find that s31A does not give the Civil Division of the Magistrates Court criminal or penal powers does not in any way render the provision nugatory.
It is my view that had the legislature intended to give the Magistrates Court the power to punish citizens for contempt up to and including depriving them of their liberty then it would have done so in the clearest and most unambiguous terms. It is my view that a lower court, being entirely a creature of statute, should be slow to find that it has such a jurisdiction absent a plain inference that it does. In that regard reference is made to Beckworth [sic][3] v R (1976) 12 ALR 333 per Gibbs J at 399[4]:
'The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences …'
It is plain to me that, to use the language of Gibbs J above, s31A is at best ambiguous as to whether the legislature intended to confer penal powers on magistrates in the civil division of this court against those who disobey court orders."
[3] Beckwith v The Queen (1976) 135 CLR 569.
[4] 135 CLR at 576.
Next, his Honour said that it was significant to look at the broader statutory context. He noted the following matters.
· Section 31A did not impose limits on the powers of a magistrate to punish.
· The section did not set maximum fines or maximum periods of imprisonment.
· In every other circumstance, where magistrates are given powers to imprison and otherwise punish, maximum sentences are clearly set out in the legislation which creates the various offences and in the Sentencing Act 1997.
· Section 13 of that Act constrains a magistrate's power to punish crimes triable summarily.[5]
· Sentencing powers for summary offences are set out in "plain and unambiguous terms" and maximum penalties are "clearly identified".
· There is a limitation on penalties which magistrates might impose in respect of indictable offences compared to those which may be imposed by judges of this Court.
[5] The maximum term of imprisonment that a court of petty sessions may impose in respect of a crime that is triable summarily is 12 months for a first offence, or five years for a second or subsequent offence.
His Honour concluded that:
"It is therefore entirely inconsistent with the manner in which the legislature has traditionally granted punitive powers to lower courts in this state that it would do so in the oblique or inferential manner as seen in s31A of the Act."
The magistrate went on to say that as there were limits on the power to punish imposed by the provision, "save for the ill-defined concept that punishment for contempt should not be 'so inordinately heavy as to conflict with the Bill of Rights' (See: R v Morris [1951] 1 KB 394 per Lord Goddard CJ at 396) is similarly inconsistent." He said it was inconsistent with the historical pattern of this State in relation to giving magistrates punitive powers, that Parliament would give powers and "only limit their exercise by reference to an Imperial Act dating from 1689 which itself simply forbids the imposition of 'cruel and unusual' punishment by courts on subjects." That result was described as "curious indeed."
Such a position was contrasted to the Court's "clearly limited power" to punish for contempts under s17A of the Magistrates Court Act:
"Such a vast divergence in punitive powers as to contempts in the face of the court on the one hand and for those for failing to comply with orders on the other, I find, makes it unlikely that was the parliament's intention when s31A was enacted."
The magistrate observed that if s17A gave the power to punish for contempt, it was inconsistent with the fact that other Divisions of the same Court did not possess such powers, when it could be expected they might. The Administrative Appeals Division and the Children's Division were given as examples. His Honour also observed that it should not be forgotten that the Construction Industry (Long Service) Act itself expressly created an offence of failing to keep and/or produce records, with a maximum penalty of 10 penalty units.
Discussion
The appellant argues, citing FederalCommissioner of Taxation v Unit Trend Services Pty Ltd (2013) 87 ALJR 588 at 597 [47], that the proper approach to the interpretation of the section begins with its text, but with context and purpose being important. The appellant says that in this case there is no need to go beyond the words of the section. They are clear and should be given their plain and literal meaning.
Relevantly, s31A of the Act says that the Court "has the same powers … as the Supreme Court has in relation to the enforcement of judgments and orders …". Leaving aside the appellant's arguments about other aspects of the magistrate's approach, it says that the magistrate has, without proper warrant, read the section as though the words "except for the power to punish for contempt" appear after the words just quoted.
It is beyond doubt that the Supreme Court has the power to deal with civil contempt and to impose sanctions as a means to enforce its judgments or orders. As Slicer J noted in Martin v Trustrum (No 3) (2003) 12 Tas R 131 at 134 [4]:
"The power of the Court is derived from its inherent jurisdiction to protect the integrity of its proceedings and to ensure compliance with the rule of law. Its power to punish for contempt is derived from the enactment of the Australian Courts Act 1828 … ."
The exercise of the power to deal with civil contempt is governed by rr940 – 942 inclusive of the Supreme Court Rules 2000. Those rules are contained in Div 3 – "Contempt". Division 3 is to be found in Pt 36 of the Rules – "Miscellaneous Enforcement and Penal Procedures".
From Witham v Holloway (above) at 530 – 531 come the following propositions. In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas criminal contempt is committed either when there is a contempt in the face of the court or interference with the course of justice. Disobedience or breach of an undertaking amounts to criminal contempt if it involves deliberate defiance or is "contumacious".
The basis of distinction between the two forms of contempt is said to lie in the difference between proceedings which are remedial or coercive in the interests of the private individual (although there is a public interest element of providing a court with the means of enforcing its orders), and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process.
It is true that as the magistrate observed, the situation (at least in Australia) is that the "differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory." The illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interests of the individual, mean that all proceedings for contempt are realistically to be seen as criminal in nature: Witham v Holloway (above) at 534; Hinch v Attorney-General for Victoria (above) per Deane J at 49.
Of course, when making the reference in s31A to the Supreme Court's powers in relation to the enforcement of its judgments and orders, Parliament must be taken to have been aware of this Court's power to deal with civil contempt as an aspect of that enforcement. That is part of the context in which the provision is to be construed.
It should also be noted that the proper approach to dealing with the commission of civil contempts is plain and well settled. Punishing a contemnor for civil contempt involves the usual sentencing factors of deterrence and denunciation: Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 per Kirby P at 314 (Mahoney JA and Hope AJA agreeing). But penal sanctions as such will not readily be resorted to as a means of enforcing court orders, and those sanctions will be imposed only when clearly needed. This is because the principal objective is to obtain compliance with the order: see generally Borrie and Lowe's Law of Contempt, 2nd ed (1983), Butterworths, at 392 – 394 and Arlidge and Eady, The Law of Contempt (1982), Street & Maxwell, at 263 – 266.
Committal is used as a last resort as there are other means of coercing the contemnor: see the discussion by Evatt CJ, Pawley and Watson JJ in In the Marriage of Sahari (1976) 25 FLR 475 at 482 – 492 particularly at 491 – 492. See also Re Clements (1877) 46 LJ Ch per Jessell MR at 385, and Ansah v Ansah [1977] Fam 138 per Ormrod LJ at 144. Nevertheless, committal and lesser penal sanctions are available, and proceedings for civil contempt are to be seen as criminal in nature, requiring, amongst other things, proof beyond reasonable doubt: Witham v Holloway (above).
Resolution of the issue
By s7 of the Act, the jurisdiction of the Civil Division of the Magistrates Court is limited to actions for an amount not exceeding the prescribed amount. Presently, the prescribed amount is $50,000. Section 11 gives the Court jurisdiction to hear and determine any action without limitation to the prescribed amount, if the parties consent in writing. More importantly, in my view, s9 of the Act gives to the Court an equitable jurisdiction. It may exercise the powers and authority of the Supreme Court to hear and determine any of the following:
"(a) an action for foreclosure or redemption of any mortgage or for enforcing any charge or lien, where the amount owing in respect of the mortgage, charge or lien does not exceed the prescribed amount;
(b)an action for the specific performance, or for the rectification, delivery up or cancellation, of any agreement for the sale, purchase or lease of any property, where, in the case of a sale or purchase, the purchase money, or in the case of a lease, the value of the property, does not exceed the prescribed amount;
(c)an action for the partition of land where the value of the land does not exceed the prescribed amount;
(d)an action for the determination of any question that has arisen in respect of any requisition, objection, claim for compensation or other matter arising out of or connected with a contract for the sale of any freehold land, the value of which does not exceed the prescribed amount, or any leasehold estate where the rent payable under the lease is at a rate not greater than the prescribed amount a year;
(e)an action for relief against the forfeiture of a lease or tenancy for non-payment of rent in any case where the rent payable under the lease or tenancy is at a rate not greater than the prescribed amount a year;
(f)an action for the rectification of any written contract where the value of the subject matter of the contract does not exceed the prescribed amount;
(g)an action for relief against fraud or mistake, where the damage sustained or the estate or fund in respect of which relief is sought does not exceed in amount or value the prescribed amount;
(h)an action for the dissolution or winding-up of any partnership (whether or not the existence of the partnership is in dispute), where the whole assets of the partnership do not exceed in amount or value the prescribed amount;
(i)an action for an order in the nature of an injunction, where such an order is requisite for granting relief in any matter in which jurisdiction is given by this Act to the Court, or for stay of proceedings at law to recover any debt provable under a judgment for the administration of an estate made by the Court;
(j)an action relating to the maintenance or advancement of a minor, where the property of the minor does not exceed in amount or value the prescribed amount;
(k)any other matter which is within the equitable jurisdiction of the Supreme Court and which is in respect of an amount that does not exceed the prescribed amount other than —
(i) an action for the administration of the estate of a deceased person; or
(ii) an action for the execution of a trust or for a declaration that a trust exists."
I would make particular mention of the jurisdiction in actions for specific performance and for injunctive relief. I also note s10 of the Act which enables the Court to administer law and equity concurrently, "in the same manner as the Supreme Court or a judge of the Supreme Court."
The granting of equitable jurisdiction in these terms, and equating the exercise of the jurisdiction to that of the Supreme Court, is strong support for the proposition that the Magistrates Court should be equipped with the same powers of enforcement in relation to its judgments and orders as is the Supreme Court. The situation is succinctly captured by a comment by Moskovitz, Contempt of Injunctions, Civil and Criminal (1943) 43 Col LR 780, noted in Miller, Law of Contempt 2nd ed (1983), Oxford, at 3:
"It is no more than a commonplace to note that the value of a right to a litigant is no greater than the available remedy, and the remedy in equity is the injunction. This insight, however, should be worked to capacity, and we have not done so until we realise that the remedy, the injunction, is worth no more than its sanction, contempt."
As to the magistrate's approach to s31A as a penal provision, there may be doubts as to whether it can be properly so called. It does not of itself make certain conduct punishable nor create an offence against the State, but it might make provision for the imposition of penalties at the instigation of the person aggrieved, and where the public interest is also involved: see Edgar, ed, Craies on Statute Law, 7th ed (1971), Street & Maxwell, at 525 - 529.
On the basis that the provision can be described as potentially penal, I am not able to see any ambiguity in the language used. The appellant's submission as to this has to be accepted. The language is plain, and by that plain language, Parliament must be taken to have intended that the Court has all of the powers of the Supreme Court in relation to the enforcement of judgments and orders.
As to the significance of the objective to give statutory words the meaning the legislature is taken to have intended, see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at 384 [78], and Lee v New South Wales Crime Commission (2013) 87 ALJR 1082 per French CJ at 1103 [45]. Of course, context, which includes the apparent purpose remains a consideration, but purpose can appear from the text as well as extrinsic material; Lacey v Attorney-General for Queensland (2011) 242 CLR 573 at 592 – 593 [43], [44].
The magistrate considered that the broad limitations on sentencing powers otherwise available to magistrates was significant, as was the obverse of that situation; that if s31A of the Act gives the power to punish for civil contempt, that power is unconfined. The combination of those two considerations was said to make it highly unlikely that Parliament intended s31A to operate as the appellant contends.
His Honour's observations about the extent of a magistrate's power to deal with contempt in the face of the court, and when sitting as a court of petty sessions, are of course valid. I do not see, however, that those things support the view that Parliament did not literally mean what it said. The purpose of the provision, particularly in the context of the Court's jurisdiction, is evident from the words used.
The extent of the Supreme Court's powers to punish for contempt was discussed at length by Slicer J in Martin v Trustrum (No 3) (above). His Honour considered those powers and their relationship to the Sentencing Act. At 138 [13], he noted that Kirby P in Registrar of the Court of Appeal v Maniam [No 2] (above) had concluded that the power to punish for contempt, was not fettered by statute, but could be exercised in conformity with it as part of the exercise of inherent power.
At 139 [14], Slicer J went on to say that the weight of authority was that unless specifically provided for by Parliament, the inherent power of the Court was not inhibited by statute, but might be exercised in conformity with a statutory aim:
"This Court does not derive its power to punish for contempt from statute and in turn is not restricted in its exercise of power by a general statute. However, inherent power can be enhanced by the adoption by the Court of a statutory 'option', although the executive cannot be obligated to accommodate the exercise of power without its consent or an obligation imposed by Parliament."
On that basis, Slicer J held that a suspended term of imprisonment would not be an exercise of the power afforded by the Sentencing Act. Later, at 140 [17], his Honour observed that by s6, the Sentencing Act itself provided that it was a consolidation and not a code, and that it did not derogate from the powers that a court may exercise, or the rights that a person may have, under any other enactment or law for or in relation to the sentencing of offenders. He took the view, relying on a statement by Denning MR in Morris v Crown Office [1970] 2 QB 114 at 125, that the common law powers of imprisonment – immediate or postponed – to fine, or to bind over to be of good behaviour to come up for judgment if called upon, remained intact. A bond was imposed.
It is true that if s31A of the Act gives to magistrates the same powers to deal with civil contempts as the Supreme Court has, there is no statutory limitation on those powers. However, as a matter of principle, I do not see any difficulty in magistrates having the common law powers referred to. As to their exercise, each case depends upon its facts and there will be varying degrees of seriousness and culpability, but the essentially remedial purpose of contempt proceedings and any other available remedy would have to be borne in mind.
If the contemnor is to be punished, the sentiments expressed in Registrar of the Court of Appeal v Maniam [No 2] (above) and Martin v Trustrum (No 3) apply. Without suggesting any actual fetters on the discretion, it might be expected that as well as there being an underlying requirement for proportionality, the powers would be exercised in the light of, or in general conformity with, the levels of punishment as indicated by relevant legislation. In particular, that legislation would be s17A of the Magistrates Court Act, and the Sentencing Act. In appropriate cases, orders can be fashioned to accord with statutory options: Registrar of the Court of Appeal v Maniam [No 2].
I hold that s31A of the Act gives to the Court the power to punish persons for contempt for non-compliance with its orders or judgments.
Outcome
The appeal is allowed. The decision of the magistrate of 17 December 2013 is set aside. The appellant's application dated 5 August 2013 is remitted to the magistrate for determination.
I wish to add some observations. In his concluding remarks, the magistrate said that were he to be wrong as to the construction of s31A of the Act, he "may well be unlikely to exercise a discretion to punish the respondent at this juncture in any event, even taking the applicant's case at its highest." He said that since the making of the appellant's application, Mr Jones had filed some materials but that there was a debate about the sufficiency of what had been produced. His Honour said it may well be difficult to satisfy him that Mr Jones has behaved in such an egregious fashion that punishment was the only option.
The magistrate also noted that in relation to the question of costs, Mr Jones was a man of apparently very limited means indeed. His Honour said:
"If all those who failed to pay costs ordered against them or who failed to satisfy money judgments of this court were to be subject to contempt applications then this court would be flooded with such applications. The notion of punishing those who do not pay debts is an entirely out-dated one."
This approach to punishment for civil contempt was not the subject of any argument, given the grounds of the appeal which limited the debate to the existence of the power. I simply observe that what his Honour said is not inconsistent with the principles of dealing with civil contempts, which I set out earlier in these reasons.
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