Young v Jackman

[1993] HCATrans 200

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S87 of 1993

B e t w e e n -

GARY MYLECHARANE YOUNG

Applicant

and

PAMELA JILL JACKMAN

First Respondent

and

STEPHEN JAMES JUPP

Second Respondent

Application for a stay of

sentence of imprisonment

Young 1 7/7/93

GAUDRON J

(In Chambers)

.

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 JULY 1993, AT 10.43 AM

Copyright in the High Court of Australia

MR M. MEEK:  I appear for the applicant, Your Honour.

(instructed by Williams Palmer & Noss)

MR S.D. KALFAS: If Your Honour pleases, I appear for the

second-named respondent. (instructed by

H.K. Roberts, Crown Solicitor for New South Wales)

HER HONOUR: There is no appearance for the former wife?

MR KALFAS:  I do not anticipate any appearance, no.

HER HONOUR: Should I have it called? Was there any

service, Mr Meek?

MR MEEK:  I am certainly not in a position to be able to

prove service and it is to the best of my knowledgE
that the summons has not been served on the first

respondent.

HER HONOUR: Should it have been?

MR KALFAS:  We would understand not; that it was not

necessary, Your Honour. The situation is that the

Registrar of the Court of Appeal, who is the second respondent, effectively prosecuted the matter for

contempt before the Court of Appeal and Ms Jackman

took no part, other than as a witness, in those

proceedings.

HER HONOUR:  Yes, thank you. Now, Mr Meek, I should warn

you that I have not been through the papers. I

have been out of the State. So, you will have to

take me through from the beginning in this case.

MR MEEK:  The application before Your Honour is a summons

which is dated 23 June 1993.

HER HONOUR:  The special leave application is on top of the

summons. Yes, I have that, thank you.

MR MEEK:  The order that is sought today is, in effect, a

stay of an order that was made by the Court of

Appeal of the New South Wales Supreme Court

sentencing the applicant to a term of imprisonment for six months for contempt of court. That is the

application. I do not intend to rely on any

affidavit, as such, in support of the application

other than the fact that I do read the affidavit of

the applicant in support of the application for

special leave which is sworn on 21 June 1993.

To shorten matters just very briefly, I only

read that affidavit in so far as it indicates the

grounds of the application for special leave to

appeal.	I do not read the annexure to the
affidavit.

Young 2 7/7/93

HER HONOUR:  The one I am reading just seems to be a

statement of contention.

MR MEEK:  Yes. I do not rely on it as having any

evidentiary basis. I just simply rely on it as

indicating what the grounds are. The applicant has

drafted the document and that is what the applicant

sees his grounds for the special leave application

are.

HER HONOUR:  Yes. They are not terribly informative,

Mr Meek.

MR MEEK:  Yes, I appreciate that and for today's purposes I

will attempt to somehow - - -

HER HONOUR:  For today's purposes you really have to

persuade me that there are substantial

prospects -

MR MEEK: Prospects, yes, precisely.

HER HONOUR:  - - - in relation to the application and its

outcome, I suppose.

MR MEEK: Yes, Your Honour.

HER HONOUR:  If you do that then you would otherwise seem

to satisfy the criteria for a stay.

MR MEEK:  A stay, yes. In so far as those grounds are

concerned, the only ground that I seek to argue

this morning is, in effect, ground 1, which says

that the decision is against the weight of the

evidence. I do not rely on any of the other - - -

HER HONOUR: It is a very unusual ground in this Court. It

is not one that often attracts the grant of special

leave.

MR MEEK:  I appreciate that, Your Honour, although the other

grounds seem equally unattractive to me this

morning for the purpose of persuading the Court and

what I have to do is persuade Your Honour that

there is some basis in the Court of Appeal's

decision that would give rise to that order. That

is the only evidence that I rely on, as such.

There is an affidavit that my friend intends to

read which will annex a copy of the Court of

Appeal's decision and the transcript.

MR KALFAS:  Yes, Your Honour, I would seek leave to file in

Court - this is as much to assist my friend and the

Court as otherwise in view of the matters he is not

now urging - an affidavit of Christine Selvaranee

Johnpulle, sworn on 6 July this year. Your Honour,

in addition to the original, I can hand up a

Young 7/7/93

copy of the affidavit which is flagged so that

Your Honour can more readily find the transcript

and judgment of the Court of Appeal which are the

two matters that I think my friend might wish to

refer you to.

HER HONOUR:  Thank you. Shall I read this affidavit now?

MR KALFAS:  I do not think it is necessary, frankly,

Your Honour. The only matters that either of us, I

think, would be taking Your Honour to at this stage

are the transcript and the judgment of the court

and possibly the judgment of Mr Justice Clarke in

the Court of Appeal before whom a similar

application to the present one was made on Monday

and refused.

HER HONOUR: Very well, thank you.

MR MEEK:  I have just a very brief outline of some

submissions, Your Honour.

HER HONOUR:  Thank you. Have I seen these before?

MR MEEK:  I attempted to arrange for a copy to be sent.

HER HONOUR:  Yes, I have, yes. Thank you. I have now two

copies.

MR MEEK: Just very briefly: the principles that I need to

satisfy Your Honour of are set out in the judgment

of Mr Justice Brennan in Jennings Construction

Limited v Burgundy - - -

HER HONOUR:  Yes. You can go straight to 4, can you not,

Prospects of Success?

MR MEEK:	Yes, certainly, Your.Honour.
HER HONOUR:	And perhaps you should tell me what, if

anything, was done below. I indicate only that you

need not deal with 1, 2 or 3 in your outline.

MR MEEK: Yes, certainly, Your Honour.

HER HONOUR: At this stage.

MR MEEK:  The judgment of the Court of Appeal is

exhibit MK3.

MR KALFAS:	Can I indicate - I am sorry, Your Honour, just to assist: working from the back, that is the
second blue tab.
HER HONOUR:	Thank you.

Young 4 7/7/93

MR MEEK:  The matter_before the Court of Appeal was a motion

for contempt. The leading judgment is that of

Mr Justice Cripps. Just very briefly, the matter

arose in this way: there was an order that was

made by Mr Justice Kearney for custody of the child

in August 1980. Both the applicant and the first

respondent lodged appeals in respect of that

decision of His Honour: the applicant in relation

to the denial of custody; the first respondent, in relation to the giving of access. That appeal was

due to be listed for hearing before the Court of

Appeal on 24 November 1980. About nine days prior

to that, on 15 November, the applicant left the

country with the child.	The contempt is stated in
a statement of charge.	I am not sure whether that
is before Your Honour.	I do not think it is.

MR KALFAS:  It is not, Your Honour. I can provide a copy.

MR MEEK: Perhaps for convenience, if I could hand that up.

HER HONOUR:  Yes, thank you. This will appear in the

application book in due course.

MR KALFAS:	I would anticipate so, yes, Your Honour.
MR MEEK:	Just a very brief summary of the court's holdings

is set out on the third page of the preamble to the

judgment. At the top of the page, the word:

"Held", just prior to the commencement of

Mr Justice Mahoney's decision.

HER HONOUR: - Page 3 of Justice Cripps' decision.

MR MEEK:	No, sorry, Your Honour. The first page of the
judgment is "Record Sheet".
HER HONOUR:	Whose judgment am I - - -
MR MEEK:	I am just at this stage, before referring to the

specific judgments, indicating there are two pages

that are just prior to the - - -

HER HONOUR:	Yes.
MR MEEK:	And the second of those pages really sets out the

holdings that were made of the findings.

HER HONOUR:  I see, yes, the headnotes.

MR MEEK:  The headnotes, yes. In relation to the grounds of

appeal, what I have attempted to do in submission

4.2 is to flesh out a bit the ground that I rely

upon for today's purpose.

Young	7/7/93
HER HONOUR:	For the moment, it does not seem to me how

those matters bear on the finding, but then I have

not read the judgments.

MR MEEK:  Yes, certainly, Your Honour. Perhaps I can first

take Your Honour to the decision of

Mr Justice Mahoney.

HER HONOUR:  Is not your difficulty in this regard that you

really want to challenge findings of fact?

MR MEEK:  I put it this way: I am a little bit hamstrung by

the way that the grounds of appeal were drafted.

HER HONOUR:  Well, redraft them here and now. You are not

bound by the draft grounds of appeal.

MR MEEK:  I put the argument this way: I do not challenge

the findings of fact so much but, rather, whether

they are sufficient, in law, to give rise to the

finding that there was, in effect, a wilful or

defined contempt. My argument proceeds along the

lines that both Mr Justice Mahoney and

Mr Justice Cripps, in effect, found that by

inference that the applicant knew the outcome of

the Court of Appeal decision and so, in that sense,

knew of the order. ·

HER HONOUR:  But he was not charged with being in contempt

of the Court of Appeal.

MR MEEK: But he was charged with contempt of the trial

judge's order.

HER HONOUR: Order by Mr Justice Kearney.

MR MEEK: Pending the Court of Appeal's hearing, the

applicant was given legal advice which he believed that the effect of the order was stayed. That, it

is conceded, is wrong and that both Their Honours

Mr Justice Cripps and Mr Justice Mahoney conceded

that that advice was given and the applicant

believed that. Now, the Court of Appeal's decision would

either confirm the original decision or overrule it

but what, in my submission, the applicant did not

know as a matter of fact was that the Court of

Appeal did in fact, in effect, confirm the decision.

HER HONOUR:  Well, you had better take me to what you say

are the problems in the judgments.

MR MEEK:  Yes. At the bottom of page 1 of

Mr Justice Mahoney's decision there is a sentence:

Young 6 7/7/93

What Mr Young did was inconsistent with that

order.

HER HONOUR:	Which page? Page 2?
MR MEEK:	Page 1 of His Honour's judgment.
HER HONOUR:	Thank you.

MR MEEK: At about point 7:

What Mr Young did was inconsistent with that

order.

The order of Mr Justice Kearney.

Second, what Mr Young did was done in

deliberate defiance of the court's order.

Then at page 2 point 5, over the page, His Honour,

in effect, in my submission, basis his finding that

there was a deliberate defiance, in part, on

constructive knowledge or inferred knowledge that:

Mr Young knew that, if he did not appear at

the hearing of the appeal, but took the child,

the strong probability was that -

HER HONOUR:  But these are all matters, really, which go to

mitigation, are they not? If you read

Mr Justice Mahoney's decision, he said what was

done was inconsistent with the order.

the charge of contempt is -

on that account -

established.

And all these other matters go to sentence, do they

not?

MR MEEK:  I can put it this way: knowledge that an order

has in fact been made does not -

HER HONOUR:  Well, he certainly knew that the order had been

made by Mr Justice Kearney.

MR MEEK:  He knew that but what, in my submission, he did

not know as a matter of fact was that the Court of

Appeal's decision was -

HER HONOUR:	But that cannot have been relevant.
MR MEEK:	It can have been relevant in the circumstances of

this case in that there was a stay that was, he

Young 7/7/93

believed, in operation between the date of the

order and the hearing of the appeal, and -

HER HONOUR:  You will have to establish that, do you not?

MR MEEK: That, I think, is conceded, that he thought that

there was a stay.

MR KALFAS:	Your Honour, I think it was conceded, certainly, that - it was certainly assumed in his favour by
the judges of the Court of Appeal that certain
advice had been tendered to him to that effect. How that operated on his mind is a live issue.
HER HONOUR:	The way I read it, Mr Meek, is this: that may

well have been relevant to sentence.

MR MEEK:	Yes, Your Honour.
HER HONOUR:	But its relevance was outweighed or overborne by these other matters which the court has found.

MR MEEK: If I can put it this way: quite apart from any

question of sentence or mitigation, what must be

established in order to found a contempt is that

the applicant had knowledge of the order.

HER HONOUR:	Of the order and acted inconsistently with it.
MR MEEK:	And acted inconsistently with it.
HER HONOUR:	Yes.
MR MEEK:	What, in my submission, has been done in the
judgment is to find that he had constructive

knowledge of the Court of Appeal's order.

HER HONOUR:	But the Court of Appeal's order is unimportant.
MR MEEK:	But it is not unimportant in the sense that it affects the very operation of the trial judge's
order.  It will either confirm it or overrule it
and, in that sense, it was important to demonstrate
that the applicant had knowledge that - - -

HER HONOUR: For my part, I do not see it. You will have to

show me why that is. For my part, I cannot see how

the knowledge of the Court of Appeal's decision, on

appeal from Mr Justice Kearney, had any bearing on
anything other than sentence.

MR MEEK:  If one accepts that he must have knowledge of the

order in which he is contempt of, then part of that

knowledge is to whether a Court of Appeal has

affirmed or overruled that order and, in that

sense - - -

Young 7/7/93

HER HONOUR: That only becomes relevant well after the

failure to return the child no later than 7 pm on

the day in question, on 15 November 1980.

MR MEEK:  It certainly cannot go to the failure as of that

time. But it certainly does go to continuing

failure which is one of the grounds - - -

HER HONOUR:  Yes, which goes to sentence. Continuing

failure goes to sentence.

MR MEEK:  It goes to sentence if the statement of charge is

read as one rather than as three separate grounds. The statement of charge sets out three paragraphs. Certainly, in relation to the second paragraph, in

so far as that is a continuing order, it may, in my
submission, go to that.

HER HONOUR:  Yes. Well, it would hardly go to the actual

commission of contempt.	It would go to the extent
of it.

MR MEEK:  Yes. Well, that is, in effect, the submission.

The particular passages of the judgment that indicate that constructive knowledge - - -

HER HONOUR:  Yes. Well, you should direct my attention to

them then, Mr Meek.

MR MEEK: Yes, certainly. Page 2 point 5 of His Honour

Mr Justice Mahoney's decision:

Mr Young knew that, if he did not appear at

the hearing of the appeal, but took the child,

the strong probability was that the judge's

order would be confirmed and would then be

without doubt in operation.

That, in my submission, is a constructive -

HER HONOUR:  A statement of the obvious, is it not?

MR MEEK:  It may, in ordinary circumstances, be a statement

of the obvious but in matters of contempt where the
seriousness of the matter is to be taken into
consideration, there must be some question as to

the extent of the knowledge the applicant had that

an order was made and whether, in effect,

constructive knowledge, whether it may be obvious

or not, is sufficient.

HER HONOUR:  Yes, all right, I see how you put it in

relation to the second particular but that would

not alter any matter based on 1 -

MR MEEK:  - - - or 3. I do not think I can press it on 1 or

3.

Young 9 7/7/93

HER HONOUR:  Are there any other parts of the judgment you

wish to take me to?

MR MEEK:  Yes, His Honour Mr Justice Cripps' decision at

page 7 point 6, the sentence that commences:

I do not believe Mr Young's evidence that he

did not know the outcome of the Court of

Appeal decision on 24 November 1980. If I be wrong about this matter, the only explanation he could have for not knowing would be that he

was determined not to find out.

That, again, is, in my submission, constructive or

inferred knowledge as opposed to actual knowledge.

That is the submission, Your Honour.

HER HONOUR:	Yes, I understand.
MR MEEK:	There are other matters, just very briefly -

obviously, I have to satisfy Your Honour as to the

prospects of the appeal and that is all I can state

on that matter.

The other matter that I just briefly wish to

address is this: in terms of the balance of

convenience of the matter there is, in my

submission, the balance of convenience all on the

side of the applicant in the sense that at present

he is in imprisonment; that - if I can put it in

this way - if that position stays as it is, it will

render futile the subject - - -

HER HONOUR:  Yes, that much can be taken for granted, I

think, in this case.

MR MEEK:  Yes, certainly. In relation to the benefit of the

order, any prejudice that would be suffered by

Mrs Carter, as she now is, there is no such

prejudice because she has the benefit of the

custody order and so, in that sense, there is no

obvious prejudice to her.

HER HONOUR:	I am sorry, she has the benefit of the - - -?
MR MEEK:	Of the custody order.
HER HONOUR:	And custody?
MR MEEK:	Of the child, yes.
MR KALFAS:	Yes, Your Honour.
MR MEEK:	so, in that sense, in terms of weighing up any

balance of convenience, in my submission, it is a

stronger case than usual on balance of

convenience. Although that will not be an

Young 10 7/7/93

overriding or the determining factor, it is, in my

submission, something that can make up part of the

way in respect of the discretion that Your Honour

has as to whether a stay ought to be granted.

HER HONOUR:  It is a very, very limited discretion, is it

not?

MR MEEK: It is, I concede.

HER HONOUR:  I have to be satisfied that it is necessary in

the interests of justice and, if so satisfied, then

I may make an order as sought. But it is a very

limited discretion, is it not?

MR MEEK: It is a limited discretion and, indeed,

Mr Justice Brennan indicates that there must be

exceptional grounds, and I concede that I have to

establish exceptional grounds.

The only other matter is that in terms of the usual sense of subject-matter of the appeal, the

fact that it is the respondent's liberty of life in

the sense of being imprisonment is, in my

submission, something that takes it, at least

arguably, towards that exceptional ground as

opposed to a circumstance in which, for instance,

there might be a payment of money that was involved

or some other ground that was the subject-matter of

the appeal. That is something that, in my
submission, takes it arguably towards the

exceptional circumstance that I need to satisfy

Your Honour on. That, apart from the other matters

that I have set out - - -

HER HONOUR:  And did you make application to the Court of

Appeal?

MR MEEK:	Yes.
HER HONOUR:	What happened there?
MR MEEK:

An application for bail was made before His Honour

Mr Justice Clarke on Monday and that application

was refused. There is certainly a question to my

mind whether it is a matter of bail or whether it

is a matter of granting a stay but, in any event,

an application - - -

HER HONOUR:	Yes, it can be approached on the same basis.
MR MEEK:	He approached it on the same basis, yes.
MR KALFAS:	Your Honour, that is found at the last red tab

at the back of the affidavit, a four-page judgment.

HER HONOUR:  Thank you.

Young 11 7/7/93

MR MEEK: Unless there is anything further - - -

HER HONOUR:	Thank you, Mr Meek. Yes, Mr Kalfas.
MR KALFAS:	Your Honour has come to the nub of the matter in that what, we submit, the applicant must satisfy
Your Honour of is a substantial prospect that the
special leave application will be successful and
that, in my submission, is really founded
ultimately on a factual assertion of what flows
from the fact that certain advice was tendered to the applicant.

If I can take Your Honour to page 7 of the

judgment of Mr Justice Cripps with whom His Honour

Mr Justice Clarke agreed. At about point 8:

As I have said, Mr Young does not assert that

the incorrect advice concerning the orders of

Kearney J operated on his mind.

And, Your Honour, that was the position as found by

the Court.

Can I take Your Honour to page 89 of the

transcript which is the next blue tab forward.

Your Honour, the question of whether there was

contempt merely by breach of the order of which the

applicant had knowledge was ventilated before the

court, of course and, at about point 3, Mr Healey,

of counsel, who appeared for the applicant before

the Court of Appeal, says:

I have to concede that the authorities are

against me in respect of the legal advice

which was obtained -

And His Honour Mr Justice Clarke went on to say:

It seems to me that whichever way one looks at

the case in taking the child out of the

country your client was in breach of a Court

order.

HEALEY:  Indeed, I concede that.

CRIPPS JA:  I do not understand you at all to

have said anywhere he did it because he did

not think there was any order binding on him
not to do it, he did it because he was driven

to it.

And Mr Healey goes on to say, at about the middle

of the next passage:

Your Honours then move to his defence: his

defence is - I was driven to it -

Young 12 7/7/93

which is really, in our submission, going to

mitigation.

Your Honour, if I could take you to just two

passages from the evidence at page 36 of the

transcript to which the court was directed below.

At the bottom of page 36, Your Honour:

Q. Is this the position ..... you were prepared

to take any action, no matter what orders of

the Court may or may not have been pending, to

remove him -

that is the child -

to a position of safety, in your view?

A.	Of course, you are looking for the worst
answer to that. True, the answer is yes.	The
situation is very clear in my mind.

I cannot turn up the reference where he said that

he was "driven to it" but Mr Healey was echoing his

client's own evidence, namely, that he knew of the

order; he really did not care about the order; he

had a view that he was entitled to remove the

child; he was driven to that and that excused what

he did.

HER HONOUR:  It does not read as though he was - a view of entitlement. A view that the child was in danger.

MR KALFAS: That was his case, Your Honour. It was not

accepted but that was his case.

HER HONOUR:	And that was rejected, was it?
MR KALFAS:	Yes, Your Honour.
HER HONOUR:	Not just that the child was in danger, but that

was the reason why he acted as he did.

MR KALFAS:  Yes, Your Honour, there was a finding to that

effect.	But we would say, in any event, that is
really a	mitigating factor that he was raising. He
conceded	through his counsel that he was in
contempt	of the order and that it was an order of
which he	knew throughout.

Unless there is anything further that

Your Honour wishes to - - -

HER HONOUR: Yes, thank you, Mr Kalfas. Yes, Mr Meek?

MR MEEK:  I do not think there is anything that I wish to

put, Your Honour.

Young 13 7/7/93

HER HONOUR:  Yes, thank you.

The grounds upon which bail pending the grant

of special leave or a stay of proceedings pending
the grant of special leave are well understood.

This case would comply with the criteria if it

could be established that there were sufficient
prospects of success in the application for special

leave to appeal. It seems to me that the

application seeks to challenge factual findings

but, given that the application is pending and to
be determined, it is perhaps sufficient if I
indicate that in my view the application does not

enjoy such prospects of success as would justify

the grant of bail or a grant of stay at this stage.

I take it, Mr Registrar, however, the matter

is listed or will be listed?

DEPUTY REGISTRAR:  Not at this stage, Your Honour. We have

yet to do an index.

HER HONOUR:	Is there any delay to be expected in this?
MR MEEK:	I am really only instructed for today but I did

address my mind to that question and I asked my

instructing solicitor yesterday - - -

HER HONOUR: Yes, because I understand there is a list in

August, is there not? Would there be any

prospect - -

DEPUTY REGISTRAR: There are 10 already in the list,

Your Honour ...•

MR MEEK:  Certainly to the extent that it is possible for

me to say, the applicant would expedite - - -

HER HONOUR: Yes. Well, it would be in the applicant's

interests, yes.	You do not seek any other orders,
Mr Kalfas, do you?	I take it the matter is

approached on the basis of a criminal matter.

MR KALFAS: Yes, Your Honour.
HER HONOUR:	The application is refused.

MR MEEK: If the Court pleases.

AT 11.21 AM THE MATTER WAS ADJOURNED SINE DIE

Young 14 7/7/93