Wentworth v Rares

[1993] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl0 of 1992

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

STEVEN RARES

Respondent

Application for special leave

to appeal

DEANE J
TOOHEY J

GAUDRON J

Wentworth(6) 1 30/4/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 1993, AT 11.45 AM

Copyright in the High Court of Australia

MR A.R. EMMETT, QC:  Might I, with Your Honours' leave,

announce my appearance, with my friend,

MRS A.C. BENNETT, for the respondent. (instructed

by Mallesons Stephen Jaques)

MS K. WENTWORTH:  I appear in person, Your Honour, with the

leave of the Court.

DEANE J:  Mr Emmett, I presume you adopt the approach that

it is a matter for the Court whether Ms Wentworth

appears - - -

MR EMMETT:	Yes, Your Honour, we do not wish to be heard in relation to that.
DEANE J:	Ms Wentworth, you can proceed on the basis that

you have leave and get straight to the substantive

matters you want to deal with.

MS WENTWORTH:  Thank you, Your Honours. Your Honours, this

matter comes before the Court as a result of the

Court of Appeal determining it had no jurisdiction

to determine a matter of acquittal from a contempt

application. I would seek to hand up a brief

outline of submissions that may be of some

assistance.

DEANE J:  Ms Wentworth, you can proceed on the basis that we

have read the papers. I hesitated because you

should not proceed on the basis, in my case at

least, that I have parsed and analysed them. I

have read them. If it is of assistance to you, I

would indicate that so far as I am concerned I
would be assisted if you directed attention on the

question of an appeal from a verdict of acquittal
of criminal contempt on the question whether the

Court of Appeal decision is attended by sufficient

doubt. In terms of the costs matters, as I think

you would anticipate, your problem there is whether

they raise any question of general principle

appropriate for a grant of special leave to this

Court. Now that is said, not by way of putting you

off, but simply to try and assist you to direct

your attention to what seemed to me to be possibly

the important matters.

MS WENTWORTH:  Your Honour, I had in fact directed the

written outline specifically and only, in fact, to
the jurisdiction of the Court and the statutory

matters which are involved.

Your Honours, basically the Court of Appeal

proceeded on the basis that a dismissal of a notice

of motion seeking to have a person punished for

contempt was in some way an acquittal from a

criminal proceeding. In doing that, the Court of

Wentworth(6) 30/4/93

Appeal equated section 101 of the Supreme Court

Act - do Your Honours have a Practice containing the Supreme Court Act and Rules?

DEANE J: This one?

MS WENTWORTH:  Yes. Your Honours, I only have the statute.

Perhaps I could take Your Honours to the relevant

sections. If you go to section 101 of the Act

Your Honours will see that section 101 of the

Supreme Court Act is in very similar terms to

section 73 of the Constitution. Section 73 of the

Constitution gives to this Court:

jurisdiction, with such exceptions and subject

to such regulations as the Parliament

prescribes, to hear and determine appeals from

all judgments, decrees, orders, and

sentences -

That is in respect of:

any other federal court, or court exercising

of any State - federal jurisdiction; or of the Supreme Court

I do not need to go further than that.

Section 101 of the Supreme Court Act says:

(1) Subject to this and any other Act and

subject to the rules, an appeal shall lie to

the Court of Appeal from -

(a) any judgment or order of the Court in a

Division;

and then goes on to certain other matters.

Your Honours, the Court of Appeal determined that

section 101 of the Supreme Court Act more nearly

equated the terms of section 24 of the Federal

Court Act which says, in terms:

(1) Subject to this section and to any other

Act, whether passed before or after the commencement of this Act ..... the Court has

jurisdiction to hear and determine -

(a) appeals from judgments of the Court

constituted by a single Judge;

Your Honours, those are the three areas which have

to be determined. There has, as far as I am able
to ascertain, not been any decision relating to an

interpretation of section 101 of the Supreme Court

Act of New South Wales in so far as it determines

appellate jurisdiction and the extent of that.

Wentworth(6) 3 30/4/93

The limitations which the Court of Appeal

sought to place on the effect of section 101 were

done in accordance with a determination in a case

in the Federal Court applying section 24, and that

was the case known as Thompson v Mastertouch,

(1978) 38 FLR 397. That was a case where there had

been an acquittal from a criminal matter. The

Federal Court of Appeal in that case determined

that it did not have jurisdiction to deal with an

acquittal from a criminal matter.

The courts seem, perhaps, to have for some

time mistaken the quite different nature of a

contempt and a crime. I would submit, and urge on

the Court, the two matters are distinctly different

and that the application of the Supreme Court Act

of New South Wales to proceedings in a contempt

application is quite different from the application

of that Act or from the Criminal Appeal Act of New

South Wales 1986 to appeals in criminal matters.

Your Honours, precedent seems to indicate that

contempt matters should be regarded as being one of a kind sui generis. They are, indeed, not criminal

nor, indeed, can they be considered appropriately

to be "civil". Under the Supreme Court Rules there

is a procedure under Part 42 for taking action in

the court in respect of what is sometimes called a

civil contempt, in order to enforce the judgments

of the court. The matters which are, with respect,

sometimes called criminal contempts, whilst they

may equate or have some relevance to matters which

are crimes, either statutorily or at common law, it

is submitted the actual matter of the contempt

itself is neither. It is not a crime per se and

that distinction has been enshrined in the Supreme

Court Act by making various exceptions under

section 17 of the Act which relates to criminal

proceedings taken in the court. Section 17(1)

says:

Except as provided in this section this

Act and the rules do not apply to any of the

proceedings in the Court which are specified

in the Third Schedule, and no claim for relief

lies to the Court against an interlocutory

judgment or order given or made in proceedings

referred to in paragraph (al) or (a2) of that

Schedule.

(2) Rules may be made under this Act -

(a) for regulating and prescribing the

practice and procedure of the Court;

When one goes to the Third Schedule of the Supreme

Court Act there are then set out the matters which

Wentworth(6) 4 30/4/93

are criminal proceedings as are dealt with by the

supreme court in this State in particular ways.

The Third Schedule relates specifically to criminal

proceedings which are commenced on indictment.	An
action commenced by way of notice of motion in a
civil proceeding, which is the matter which is
currently before the Court, cannot in any terms

come under the Third Schedule of the Supreme Court

Act as referred to in section 17 of the Act.

Further, the rules at Part 75 set out further

limitations in relation to section 17 of the Act.

What Part 75 does is say:

Subject to section 17 of the Act and

except as provided in this Part, the rules do

not apply to any of the proceedings in the
Court which are specified in the Third

Schedule to the Act.

Part 75, specifically at lA, applies the Criminal

Appeal Rules and at 2 sets out:

The following rules apply, so far as

applicable, to proceedings which are specified

in the Third Schedule ..... to the Act and to

proceedings to which Division 2 applied -

The proceedings in the Third Schedule are limited to proceedings on indictment so far as they are

relevant to these proceedings, Your Honours.

There are other matters under the Criminal Appeal

Act, the Children (Criminal Proceedings) Act,

Habitual Criminals et cetera, but so far as this

application before the Court goes, the Part 75

cannot be applicable to this application and that

is a further exclusion I would press on the Court

made by the legislature to indicate that contempt

applications are, indeed, not criminal proceedings.

Part 75 rule 3D goes on to set out the form of

an indictment and the form of that indictment, at

Form 74AE, is a further indication that contempt
applications do not come within this Part.	The

form 74AE is an indictment by the Attorney-General

or the Director of Public Prosecutions on behalf of

Her Majesty.

Division 2 of Part 75, Summary Jurisdiction,

relates to:

This Division applies to proceedings in

the Court under the Supreme Court (Summary

Jurisdiction) Act, 1967 (in this Division

called the "subject Act").

Wentworth(6) 30/4/93

At Part 75.SA, the assignment of business is

"assigned to the Criminal Division" and the Supreme

Court (Summary Jurisdiction) Act 1967 when looked

at clearly indicates - Your Honours, I do not think

you will have a copy of that. Perhaps I should, to

assist, hand Your Honours some copies of that.	I
have only included a short part, Your Honours.	The
relevant section is section 3:

Where, under any Act, proceedings for an

offence may be taken before the Court in its

summary jurisdiction, the Court shall have

jurisdiction to hear and determine those

proceedings in a summary manner.

An example of those sorts of proceedings are to be

found in the New South Wales Crimes Act - perhaps I

can hand up relevant extracts, at section 475A and

475B. Your Honours will note at 475A:

Subject to subsection (2) and section

475B but notwithstanding any other law,

proceedings for any offence mentioned in the

Tenth Schedule may, pursuant to an application

made under section 4(1) of the Supreme Court

(Summary Jurisdiction) Act 1967 by the

Attorney-General or the Director of Public

Prosecutions, be taken before the Supreme

Court in its summary jurisdiction.

The Tenth Schedule then sets out the various offences and the closest that the Tenth Schedule would get to the matter which is currently before the Court is:

(a) Any offence arising under, or the common

law offence of attempting, or of conspiracy,

to commit any offence arising under -

and then it sets out various sections of the Crimes

Act of New South Wales, these being those sections

of offences punishable by the supreme court in its	summary jurisdiction in accordance with Part 13A of
the Crimes Act 1900, No 40.

Your Honours, I have categorized those types

of matters in the submissions and basically they include such things as fraud, obtaining money by deception, fraud by directors, forgery and,

included as well, are the offences of perjury. I

have not got a copy of these, but those relating to

perjury and like offences are set out from

paragraphs 327, 330, 339 and at sections 340 and

341, particularly at 340 the procedure for
directing a prosecution for perjury is then set

out.

Wentworth(6) 6 30/4/93

When one looks at that legislative structure

of the Supreme Court Act and of the rules it would

appear to be clear that the legislature,

particularly by the implementation of section 17 of
the Act, intended to exclude certain matters from

the rest of the sections of the Act and from the

rules. The Court of Appeal felt that perhaps there

might have been some omission by the legislature in

not turning its attention to matters of contempt when the Act and the rules were being formulated.

I would press on the Court that that does not,

indeed, seem to be the case. The case appears to

be that the Act and the rules are a complete code,

and a very thorough code, for dealing with matters

before the court which are criminal.

Now, Your Honours, further in relation to

criminal appeals in this State there has been

further legislation by which criminal appeals are

allowed. I would say, therefore, that there is

sufficient doubt attendant upon the principles

which were relied upon by the Court of Appeal in

coming to its decision that section 101 of the

Supreme Court Act should not apply in all cases to

all appeals from all divisions of the court and

that that matter is a matter which this Court

should determine for the citizens of this State

and, indeed, for citizens of other States. In

certain other States, for instance in Tasmania,

legislation has been gazetted which allows an

appeal specifically from an acquittal in a criminal

proceeding. That Act, Your Honours, is set out at

paragraph 6 of the submissions. The Criminal Code

Act 1924, section 401(2). It would therefore

appear that there is, between the States, and in

accordance with the effect of the Constitution as

it is applied in this Court to acquittals from

criminal proceedings, a dichotomy of views as to

what is perhaps the applicable law.

When one then looks to the actual terms of the

Supreme Court Act to see whether or not one applies

the criminal law, or even the common law, in

relation to this particular type of proceeding

which is before the Court, one has to come to the

conclusion that, as a matter of rationale,
section 101 of the Supreme Court Act must apply to
the notice of motion the subject of these

proceedings.

Your Honours, I think it can be tested this

way: if it, indeed, was the case that - I will call

them criminal contempts - could not be dealt with under section 101, then the determination of this Court in Hinch v Attorney-General in relation to

section 76 of the Act would indeed have also been

precluded. In that case, this Court determined

Wentworth(6) 7 30/4/93

that section 76 of the Act, which relates to

costs - and this was a criminal contempt matter,

Your Honours - was to be applied. I have referred

to that in my outline of submissions at

paragraph 5. At paragraph 5, this is a direct

quote:

"Notwithstanding that the contempt may be

described as a criminal offence, the

proceedings do not attract the criminal

jurisdiction of the court to which application

is made. On the contrary they proceed in the

civil jurisdiction and attract the rule that

oidinarily applies in that jurisdiction."

And that is a decision of the whole of the Court in

(1987) 164 CLR 15, and the specific quote is at

page 89 of that judgment.

Your Honours, it would be a very strange way

in which to interpret legislation if one section of

an Act was to be applied in a contempt matter and

in another contempt matter another section of the

Act was to be excluded, although not specifically

excluded by reason of section 17.

Your Honours, that is the basic structure of the way the Supreme Court Act applies in this State

and that is a matter which, it would appear from

the judgment of the Court of Appeal, is not as yet

in a state where the citizens of this State could

reliably depend upon its application by the courts.

It is for this Court, it is submitted, as a matter

of public policy, where there is such doubt
attendant in relation to the interpretation -
application of the statute in this State, to lay
down the final and conclusive test for the State of

the way in which the statute should be applied.

That, Your Honours, I would say, brings the matter

clearly within the - - -

DEANE J:  Ms Wentworth, would you just excuse us for a

moment. We have just been handed Hinch and we will

just have a look at it. Yes, Ms Wentworth.

MS WENTWORTH:  Your Honours, the next matter that I wish to

take Your Honours to is the general principle which

is applicable in making a distinction between the

contempt of court which may have some features of a

criminal act, and the criminal act itself. In

Keeley v Brooking, (1979) 53 ALJR 526, the

distinction is clearly made between a contempt

which may have been committed by perjury of a

person and the actual crime of perjury. The

Commonwealth Law Reform Commission in 1987

presented a paper on contempt and, in fact,

presented a draft bill. The recommendations of

Wentworth(6) 30/4/93

that report were based - and I precis them - on a

contention and a feeling that there should not be
any further matter noted as "criminal contempt",

but that the matter which should be dealt with

should be dealt with in an application in relation

to the crime itself, which would otherwise be

encompassed in a contempt application.

The basis for that recommendation was that the

courts, by contempt applications, were not in fact

dealing with any matter between parties; they were, in fact, dealing with the authority of the court as

it stood and the way in which proceedings would
have to be conducted if the court was to have

teeth. Now, .the authority of the court and the way in which that is impressed upon the citizens of the

State, I suppose, could best be described as a

ministerial, an executive function; it is quite a

different matter from a crime which is committed by a person and for which they must be punished. Now,
the establishment and the vindication of the
authority of the court by contempt law is quite a
different matter from the application of the
criminal law and, whilst there may appear to be

some sort of overlap between the two - and I think this was perhaps shown in Mudginberri, the AMIEU v

Mudginberri Station, (1986) 160 ALJR 610, a case in

which, despite what the court had told this union

to do, they had continually refused to do it and

the court consequently fined them. It was said in

that case, this is contumacious contempt of the

court and this is a criminal contempt.

Your Honours, with great respect, I would urge

on the Court that that sort of categorization of

criminal contempt really is a description which

was, in fact, used in Mudginberri; that the

proceedings for enforcement of the court's orders

and for the contumacious contempt of the court's

orders were only quasi-criminal in nature.	When a
matter is quasi-criminal in nature, and not
criminal in nature, I would press on the Court that

there cannot be a particular criminal acquittal by

either a court or by a jury. Historically, and

many long years ago, contempts of court were in
fact dealt with on indictment. That form of

procedure no longer exists and in United

Telecasters v Hardy, (1991) 23 NSWLR 323, there is

the definitive statement by, I think it is

His Honour Mr Justice Samuels, that contempt is to be dealt with summarily and not on indictment. I

have set that out in paragraph 6 of my outline of

submissions.

Now, what I am urging on this Court is this:

whilst in a criminal matter there can be an

acquittal, and that acquittal may be in a court of

Wentworth(6) 9 30/4/93

summary jurisdiction or it may be an acquittal by a

jury, the two most common forms of acquittal. If

it is an acquittal by a jury, this is a criminal

matter, then the common law principle that that

acquittal should not be contested is a matter which

would probably only be put now in contest - and it

can still be put in contest - firstly, under

section 73 of the Constitution in this Court which

has the authority and jurisdiction to do so;

secondly, if, as set out in Davern v Messel, it is

and has been obtained by a significant fraud and

that that fraud is demonstrable by fresh evidence;

and thirdly, if it is in a summary jurisdiction

there is no question that in most States in this

country there is legislation by which an acquittal

can be overturned.

So that particular structure of the criminal

law is not even as far reaching as the judgment of

the Court of Appeal would appear to impress. When

one looks at whether or not a contempt is a

criminal matter, and clearly it cannot be so, then

it would seem that the exemption of contempt from

the effects of section 17 of the Act allows the rest of the sections of the Act, so far as they

apply, to be enforced.

Your Honours, I have set out in the outline of

submissions, at paragraph 6, some of the case law

which relates to judgments of acquittal in criminal

proceedings. At different times it has been

attempted to be argued in this Court that

section 73 of the Constitution should be

interpreted differently when it is applying to

convictions of criminal offences or where it is

applying to acquittals. I would submit to the

Court that no such distinction is made by

section 73 and that there should not be any such

distinction. The leading cases or the more

important cases, Your Honours, I shall not read out

unless Your Honours want me to take you to any of
the matters.	I have set out there in paragraph 6

the distinction which I have just referred to in

Reg v Snow, pages 337 point 9, 346, 351 and 371.

That case is an old case, but I would submit to the

Court that some of the matters which it raises are applicable to this proceeding and, particularly, the effect of that case which says that:

The Court should examine the appeal to see

what is in truth and effect of that which is

challenged; whether it is the finding of the
jury or the act of the Court.

This comes back to this clear distinction that runs as a solid thread through the case law between

acquittals from a jury and "acquittals", whether

Wentworth(6) 10 30/4/93

it be in a Court of Appeal from a conviction at

first instance, or whether it be as an act of the

court, the distinction is clearly there. And I

would submit that a contempt is a clear act of the

court. It is an act of the court taken to

vindicate its own authority.

The flavour of criminality which is referred to in Mudginberri and other cases cannot give

contempt the actual nature of a criminal

proceeding. Further, Your Honours, it would appear

to be the case that as far as the nature of the

contempt in relation to an appellate process is

concerned - this is at paragraph 7 of the outline -

that is governed by the nature of the case in which

it is committed. When I looked at the case law on

this, I found that there was a distinct line of

case law where there had been, particularly

recently, in criminal matters and criminal

proceedings, the refusal to be sworn and to answer

questions by various offenders and those were

treated then as contempts of court. The actual

contempt of the court is clearly, and the reason

why the persons were punished, was because the

trials in those cases of other persons could not go

ahead in an orderly fashion and the court needed to

vindicate its own authority, to impress upon

citizens that that was not something which this

court, or any other court, would permit. Those were contempts in criminal matters. They would

then be dealt with under the criminal appeal rules
and in accordance with, if they were criminal
proceedings, which I would say they are not,
section 17, in that they were steps in criminal

proceedings.

GAUDRON J: Has that been so held anywhere, Ms Wentworth?

MS WENTWORTH:  Yes, it has, in Shepherd V Bowen, I think.

It is a Court of Appeal judgment.

GAUDRON J: Do not let me take you out of the course of your

argument.

MS WENTWORTH: It is Shepherd v Bowen, (1986) 4 NSWLR 475.

It is at paragraph 17 of the submissions.

GAUDRON J: They are dealt with as a step in the criminal

proceedings?

MS WENTWORTH:  They dealt with steps in proceedings.

His Honour Mr Justice Priestley, in that particular

case, defines "business of a proceeding being

something that happens in the course of

proceedings", and it is a case where His Honour

Mr Justice Mahoney examines extensively section 17

of the Supreme Court Act and it may, in fact, be

Wentworth(6) 11 30/4/93

something which Your Honours could accept in this

case as being a proper definition and principle in

relation to section 17. What it basically does is

to say, well, if you have - I think that was an

application for a stay. There have been several
cases where there have been applications for stays
in criminal proceedings and those have been taken

as steps in a criminal proceeding. In those cases,

section 17 has been found to apply because the

criminal proceedings have been on indictment and,

therefore, the sections of the Act and the rules

have been found not to apply in those cases.

So if there has been a step in the proceeding,

in a criminal proceeding, and the vindication of

the court's authority by itself could certainly, I

would urge on the Court, be considered such a step,

then, Your Honours, that would put those types of

contempt into a different category from the one we

are dealing with here.

GAUDRON J: Have they been dealt with in a different way

from - - -

MS WENTWORTH:  Yes, there is a Victorian case of La Trobe

University v Robinson, which I have - I thought I

had put this into the - - -

TOOHEY J:  It is mentioned at the top of page 4 of your

written argument.

MS WENTWORTH:  Yes, indeed. In that case, there is a

specific statement by the court that the nature of

a contempt as far as the appellate process is

concerned is governed by the nature of the case in

which it is committed. So you have the two

different States applying different tests and the

federal legislation being applied differently

again.

GAUDRON J: What is the consequence so far as appeals are

concerned of the difference between it being in a

criminal proceeding and in a civil proceeding,

according to your submission?

MS WENTWORTH:  It would appear that if it is in a criminal

proceeding, then in this State section 17 is

applied. If it is in a civil - - -

GAUDRON J: With the consequence that there is an appeal from

an acquittal?

MS WENTWORTH:  No, in consequence that the jurisdiction of

101 would be omitted.

GAUDRON J: Yes, but would there then be jurisdiction to the

Court of Criminal Appeal?

Wentworth(6) 12 30/4/93

MS WENTWORTH: That has not been determined, Your Honours,

so far as I can see, and that is part of the whole

of the problem. This is why I took you to the

structure of the Act to start off with because it

appears to be quite indefinite as to how these

matters are to be applied. When I went through the

legislation and looked at the way this legislation

was supposed to work, it seems that perhaps the

Parliament has got a bit ahead of itself and has

not really, at some stages, fully determined what

particular sections of the Act or what particular parts of the rules should apply to what processes.

That is what casts the doubt on the determination

of the Court of Appeal being correct. I am not

surprised that the Court of Appeal was perhaps not able to make something quite definitive out of the

way the section 101 should apply, because the

further one goes into the legislation the more

indefinite it appears to be.

There is a very real difficulty which may need

some quite extensive statutory change and, for the

purposes of this case as a matter of public
purpose, Your Honours, I would press and urge on

this Court that a determination by this Court would

be an indication to the Parliament of this State

that perhaps it needed to make some further

legislative change and, also, Your Honours, I would

say that because there is such a difference between
the legislation in the different States and at

different levels, that there can be no certainty, by any citizen in the Commonwealth, as to whether

an acquittal or whether a dismissal of a notice of

motion claiming a contempt, be it under Part 42 of

the Supreme Court Rules, which under no

circumstances can be considered really a contempt,

or whether a contempt or a quasi-criminal contempt

should be dismissed - those matters, Your Honours,

simply are undetermined at this stage and - - -

DEANE J:  Ms Wentworth, I see Mr Spender and Ms Needham are

in Court, so we will revert to Wickstead v Browne

for a moment.

AT 12.43 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.49 PM:

DEANE J: Yes, Ms Wentworth.

Wentworth(6) 13 30/4/93

MS WENTWORTH:  Your Honours, the distinction between an

acquittal by a jury and the acquittal obtained in

other proceedings has been authoritatively dealt

with in Reg v Benz, page 112 point 3; Reg v Darby,

page 676 point 9, 677; at which point Reg v Shannon

is referred to.

DEANE J:  You need not really trouble about that. If it was

an acquittal by the jury, you would not be here.

MS WENTWORTH:  That is indeed correct, Your Honouor. The

distinction, though, is drawn in those cases

between the acquittal by a jury and an "acquittal"

obtained in any other proceedings. I draw that to

the attention of the Court, in that a complete

distinction is drawn between acquittals, even, in

the different proceedings.

The vindication of the court's process by its

contempt powers, as far as I could find, was first

of all extensively dealt with in R v Almon, (1765)

Wilm 243, 254. The Law Reform Commission refers to

this process at page 20 of that particular report

and that principle, Your Honours, is picked up in

1987 in Varley v Attorney-General, 8 NSWLR 30, 35

and 49; and Killen v Lane, (1983) 1 NSWLR 171.

The final matter that I wish to refer to,

Your Honours, is this, that if there is fresh

evidence, cogent and conclusive, of the guilt of a

contempt, that should be allowed before this Court,

whether the notice of motion seeking punishsment

has been dismissed or not, and the authority for

that is Davern v Messel, (1984) 115 - - -

GAUDRON J: I do not follow that. Is that directed to some

other aspect of the proceedings?

MS WENTWORTH:  It is directed to other aspects of the

proceedings, Your Honour, in that there were

matters of fact and the matter was heard on the

merits before a single judge. There was a conflict

of evidence between Mr Rares and myself. Mr Rares

went into the witness box, was sworn, gave

evidence. There was a complete conflict between

the two matters of evidence and the judge preferred

Mr Rares' evidence. Subsequent events, including -

Mr Rares' evidence was that I had agreed that the

whole of the statement of claim, seeking that

proceedings be set aside for fraud, should be

dismissed and struck out. In a nutshell, that was

the claim put forward by Mr Rares to a judge, in

order to obtain an extension of time.

GAUDRON J: I am familiar with the background. What my

question was directed to was, is the submission

you are presently making directed to one of the

Wentworth(6) 14 30/4/93

interlocutory orders, rather than the order of the

Court of Appeal dismissing your appeal?

MS WENTWORTH: 

No, Your Honour, actually it relates to the

order dismissing the appeal on the basis that the
court as well, in the Court of Appeal, had

jurisdiction to receive fresh evidence. It should

have done so. The fresh evidence was urged on the court but because the court determined to hear the preliminary point in relation to whether or not

section 101 of the Act applied or not, then the
proceedings terminated at that point.

GAUDRON J: Am I right in thinking that this issue only

becomes a live issue if you succeed totally on the

question of an appeal from an acquittal in a

contempt charge, to use that phrase?

MS WENTWORTH:  Not entirely, Your Honour, in that it is

suggested in Davern v Messel that that, in fact, is

ground for the matter to be dealt with on appeal.

That if there has been a judgment obtained by

fraud, in accordance with the old principles in

Lazarus Estates and Duchess of Kingston, and

running forward then, as recently as 1984, this taken into account to determine whether an appeal

should be allowed to proceed. So it would come

before, in fact, the jurisdiction of the court

under section 101. That is the position that I

would urge on the Court. It would be quite wrong

and unjust if a person were allowed, by way of

making false statements to the court, to be allowed

to continue to have the benefit of a judgment in

their favour in these sorts of proceedings, which

are not criminal proceedings, Your Honour, and in

which the court could, in fact, receive fresh

evidence in order to give it jurisdiction over and

above that given by section 101 solely. That, Your

Honour, is the submission that I would put to the

Court.

The Court of Appeal, I would say, should have

looked, firstly, at the fresh evidence before it

determined whether or not it had the jurisdiction,

which it claimed it did not. If one takes it the

other way, if the court did not have jurisdiction,

then indeed it could not have entertained anything

from the time at which the proceedings were

commenced.

GAUDRON J: Including the fresh evidence. It seems to

me - - -

MS WENTWORTH:  I realize that that is the back to front - I mean it has to be one or the other. If it did not

have jurisdiction, then it is functus officio, it

Wentworth(6) 15 30/4/93

could not do anything. If there is an intermediate

position where to give it jurisdiction there can be

a reception of fresh evidence. If, on the third

hand, there is complete jurisdiction under

section 101, then the appeal proceeds in the normal

course and section 75A of the Act applies and the

appeal becomes a rehearing de nova and fresh

evidence can be adduced. That is the final point

which Their Honours did not advert to in the Court

of Appeal.

The difference between an appeal in

section 101 of the Supreme Court Act, as governed

by section 75A, is that an appeal in the Supreme

Court of New South Wales is a hearing de novo.

Under the federal legislation, section 24 of the

Federal Court Act is purely an appeal; it is not a

rehearing in any way. Those two matters, again,

demonstrate the difference between the two sections

and why, necessarily, they should not be in this

proceeding equated.

Your Honours, on the matter of jurisdiction,

those are the only matters to which, including the cases which I have referred to in the submissions,

I wish to draw to the Court's attention. If

Your Honours wish to hear me on the other matters,

then I am prepared to address on those.

DEANE J: That is a matter for you, Ms Wentworth, but what

you would have to demonstrate on the other matters,

in terms of whether leave is granted or not, is
that they raise some question of general principle

appropriate for a grant of special leave to appeal.

MS WENTWORTH:  The matters which I would raise,

Your Honours, are these, in brief. There was

procedural unfairness before His Honour

Mr Justice Waddell in that there was a refusal of

an adjournment to have a relevant and critical

witness before the court and a refusal to allow

On the proper principles that apply to all	that matter to be tested in the Court of Appeal.	proceedings in the court, that by itself, I would
submit to the Court, is so procedurally wrong and so procedurally unfair as would make the judgment
of the court ineffective.

Your Honours, further, I would say that there

is now fresh evidence which, as a matter of

principle, should be before the court and, indeed,

had I known about it at the time the matters were

before Mr Justice Waddell, would have indeed been before that court. Further, there are subsequent material matters which occurred before the hearing

in the Court of Appeal which are such that it would

be a denial of natural justice to me if those

Wentworth(6) 16 30/4/93

matters were not allowed to be taken into account

in a determination as to whether leave to appeal

should indeed be granted, so that the matter could

be sent back to trial and properly tested on the

merits.

The fresh evidence is so material to the questions which His Honour determined, that is

whether or not I had in fact agreed that the whole

of my statement of claim, or most of it, should be
dismissed, that it would be absolutely

determinative of the fact in a contrary manner to

the way in which His Honour determined it. And on
the principles which are set out in paragraph 20 of

the submissions, Nicholls v Carpenter, McDonald v

McDonald, and the latest case, Monroe Schneider

Associates v No 1 Raberem, 109 ALR -

GAUDRON J: I am somewhat confused. Was there an order of

the Court of Appeal going to the fresh evidence?

MS WENTWORTH:  No, Your Honour. The Court of Appeal simply,

on the day that the matter came to court, there had

been no objection to competence by the respondent.

GAUDRON J: Yes. The reason I am asking is is there some

order that these matters go to or are these just

aspects of your main point?

MS WENTWORTH:  These are aspects of the point that the first

trial failed entirely for procedural unfairness and

failed because of matters which were not available

to me at the time and should have been in evidence.

DEANE J: But if, contrary to your submission, the decision

of the Chief Judge in Equity has the same immunity
from challenge as an acquittal of a criminal

charge, in the absence of some applicable statute,

that is the end of the matter. I follow how all

the fresh evidence points arise if the Court of

Appeal is mistaken and it has jurisdiction to

entertain an appeal, but if, contrary to your

submission, it had no jurisdiction to entertain an

appeal, I have trouble in following your fresh

evidence point, either in the Court of Appeal or, a

fortiori in this Court, where it has been held that

this Court has no jurisdiction to receive fresh

evidence on an appeal.

MS WENTWORTH:  Your Honour, the problem that I am faced with

is this, that the Court of Appeal assumed

jurisdiction from 1986 to 1990, dealt with a lot of

matters - - -

DEANE J: Yes, I have read what you have said about that in

the submissions.

Wentworth(6) 17 30/4/93

MS WENTWORTH:  - - - then refused to deal with a fresh

evidence point. Your Honour, my position before

this Court is this, that either it is one thing or

the other. The court cannot claim jurisdiction to
deal with some matters and then refuse jurisdiction

to deal with others. That could not be a proper

way for the law to be administered. Your Honours,

if Your Honours are against me on the acquittal, to

put it in those terms, point - and I would say that

that is a position that the Court should not

adopt - then, Your Honours, I would put the second

position that, if the Court of Appeal had no

jurisdiction as it said it did not, then I would

ask for a declaration in this Court that each and

every determination of that court without

jurisdiction was, indeed, a nullity.

So, Your Honours, I am left in a situation

where I do not know, and I am unable to determine,

whether I am bound by orders of a court which says

it has no jurisdiction or whether, in fact, the

court having no jurisdiction, the orders are a

nullity, or whether the court did have some

jurisdiction which it properly exercised and,
therefore, those orders are binding. That is a

matter, also, Your Honours, that on a special leave application I would submit it is necessary for this

Court to determine because the sorts of matters that the Court of Appeal took to itself under

jurisdiction were important. One of the matters

was, for instance, whether or not a subpoena can

issue to a judge. Now, the court specifically

excluded the statutory intent of the New South

Wales Evidence Act, section 6. The submission to

the court would be that the court is not supreme to

Parliament; parliamentary intention must be carried

out by the court in the exercise of its authority.

So, Your Honours, the taking of jurisdiction

by the court in certain matters went to some really

quite fundamental issues which the persons in this State are entitled to have determined by this	Court. That position has never been determined by
this Court. It has not been determined by this
Court whether the court, having no jurisdiction, can then make orders as to costs.

DEANE J:  Ms Wentworth, I would think if you have not found

a determination, it is because it is so obvious,

that a court whose jurisdiction is invoked and

which then holds that it has no jurisdiction to

uphold the appeal has complete jurisdiction to make

an order for costs against the person who

mistakenly invoked its jurisdiction. Really, as I

say, I could not think of anything more obvious.

Wentworth(6) 18 30/4/93

MS WENTWORTH:  Your Honour, in respect of that, that may

well be correct. But in respect of interlocutory

proceedings, that surely could not be correct.

DEANE J:	Why not?
MS WENTWORTH:	Your Honour, if the jurisdiction of the court

is invoked, however wrongly, and the court
determines that it does not have jurisdiction, how

does - - -

DEANE J:  Does not have jurisdiction to make the order that

is sought. It has jurisdiction to hold that it has

not got jurisdiction; it has jurisdiction to do all
the interlocutory matters that are necessary along

the path. Really, you are going into areas which

should not trouble this Court, they are so obvious.

MS WENTWORTH:  I hear what Your Honour says and I accept it.

I would not have thought those matters were quite

so obvious, Your Honour.

DEANE J: Perhaps different minds see things differently.

MS WENTWORTH:  Indeed, Your Honour. The general principle

that I have been able to establish is that a court

without jurisdiction is unable to make an effective

order.

Your Honours, those are the matters in

relation to the position as to whether the judgment

and orders of His Honour Mr Justice Waddell were

appellable before the New South Wales Court of

Appeal. I would ask the Court to grant special

leave on the basis that there is a distinction

between the authority, by legislation, in different

States of the Commonwealth and as such is a proper

matter for special leave to be granted.

GAUDRON J: Could I just check one thing, Ms Wentworth? Does

that mean you are not pursuing an application with

respect to the refusal of leave against the costs

order by Mr Justice Waddell?

MS WENTWORTH:  No, Your Honour. That is what I was trying to impress on the Court. I am, indeed, pursuing

the application as is set out in the appeal in

relation to the special leave refusal by the court,

which had no jurisdiction, against the costs order

of His Honour Mr Justice Waddell. I am also,

indeed, pursuing the application in relation to the

leave which was refused in relation to the orders

of His Honour Mr Justice Needham. I am pursuing

the applications in relation to each of the
judgments in the interlocutory matters which are

set out in the application for special leave to

Wentworth(6) 19 30/4/93

appeal and in the draft appeal.	Does that
clarify - - -

GAUDRON J: Yes, thank you.

MS WENTWORTH:  I am indeed pursuing each one of those matters, Your Honour.

DEANE J:  The Court will adjourn until 2 pm. It could be,

in view of some matters that need to be discussed,

that we will be a little late in resuming. But we

will endeavour to resume at 2 pm.

AT 1.10 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.20 PM:

DEANE J:  The Court need not trouble you, Mr Emmett.

MR EMMETT: If it please Your Honours.

DEANE J:  The Court considers that the only important and

arguable question of principle which would be

involved in an appeal in this matter is the

question whether the Court of Appeal was in error

in holding that it lacked jurisdiction to entertain

an appeal from the judgment and order of

Justice Waddell, the Chief Judge in Equity,

dismissing proceedings charging the respondent with

contempt of court.

Notwithstanding the submissions of

Ms Wentworth, who has appeared in person, the Court

does not consider that the actual decision of the

Court of Appeal, on that question, is attended by	sufficient doubt to warrant a grant of special
leave to appeal. As already indicated, the other
matters raised by Ms Wentworth involve no arguable
question of general principle appropriate to attract a grant of special leave. Accordingly, the application for special leave to appeal is refused.

MR EMMETT:  I am instructed to ask for an order on an

indemnity basis, Your Honours. Having regard to

the nature of the application, the findings that

were made by the Court of Appeal and by the trial

judge, in our submission, this application really

was tantamount to vexatious and the respondent

ought not to be put in the position of having to

bear the costs of resisting it.

Wentworth(6) 20 30/4/93

The application book itself goes well beyond what was, at least, an arguable issue.

Your Honours have observed that there was no basis for much of the material which is the subject of the application book and, in our submission, it is an appropriate case for a special order.

DEANE J:  Ms Wentworth, you need not trouble about the

submission that there should be an order for costs
on an indemnity basis. The ordinary course in this

Court is, of course, that costs follow the event on

a special leave application, that is, not on an

indemnity basis.	Have you anything to say in
relation to that?

MS WENTWORTH:	No, Your Honour.
DEANE J:	The application for special leave to appeal is

refused with costs.

AT 2.24 PM THE MATTER WAS ADJOURNED SINE DIE

Wentworth(6) 21 30/4/93