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High Court of Australia Transcripts |
Sydney No S62 of 1998
B e t w e e n -
KARL PELECHOWSKI
Appellant
and
THE REGISTRAR, COURT OF APPEAL
Respondent
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 10 NOVEMBER 1998, AT 10.17 AM
(Continued from 8/10/98)
Copyright in the High Court of Australia
MR A.J. McQUILLEN: May it please the Court, I appear for the appellant. (instructed by Greg Walsh & Co)
MR P. MENZIES, QC: May it please the Court, I appear with my learned friend, MR R.P.L. LANCASTER, for the respondent. (instructed by the Crown Solicitor's Office)
GAUDRON J: Yes, and it is your turn, I think.
MR MENZIES: It is my turn, your Honour, yes. We used the time during the adjournment to prepare some further submissions. We regret that we have only just been able to get them to your Honours. Circumstances conspired against us. But the purpose of the supplementary submissions was to try and deal with some of the matters that have been raised in argument and in discussion between my learned friend and various members of the Court, and to deal with some of his issues.
Your Honour, as we understand the appellant's position, he accepts the formulation put to him by Justice Kirby, that there were conceptually three issues that needed to be dealt with: first, did the judge have power; second, if yes, was the sentence excessive; thirdly, if the sentence was not excessive and assuming power, then has the sentence now expired or may it be reimposed?
Dealing with those matters in that order, we turn to power. If there is no power then, as Justice McHugh rather aptly put it, the appellant is home and hosed. If there is power then part of that metaphor applies to the appellant, but none of it to his benefit.
The source, obviously, is section 46 of the District Court Act. In our submission, that provides an ample grant of power. It is hard to see how it could have been expressed in a broader way.
GAUDRON J: It does suggest, however - I mean, your argument must depend on the proposition that the order in question in this case is an injunction, properly so called, and not an asset preservation order, as I elected to call orders of that kind when the case first came to this Court from the Federal Court.
MR MENZIES: In our submission, it conforms with the - - -
GAUDRON J: Well, what is an injunction?
MR MENZIES: An injunction is an order of the Court to restrain some course of action, or to order it.
GAUDRON J: An order of the Court in what was formerly the exercise of equitable jurisdiction, surely.
MR MENZIES: Indeed - - -
GAUDRON J: What basis is there for thinking that asset preservation orders have anything to do with the equitable jurisdiction of courts.
MR MENZIES: Your Honours, certainly that has been assumed in - - -
GAUDRON J: There is no basis for that sort of assumption, though, is there? In Jackson v Sterling Industries, and subsequently in - - -
GUMMOW J: MUA.
GAUDRON J: MUA, these orders were put firmly on the basis of the inherent jurisdiction of the Court, or in the case of a statutory court, its implied jurisdiction, or where there is a provision such as 23 of the Federal Court Act, provisions of that kind. It has never been put on the basis of equitable jurisdiction.
McHUGH J: Why do you concede that the jurisdiction is confined to equitable,.....common law courts were given power to grant injunctions?
MR MENZIES: Your Honour, I was reflecting upon that when I was thinking of how I was to deal with Justice Gaudron's comment, and I do not concede that.
GAUDRON J: Yes.
MR MENZIES: And I was about to take your Honour, or take the Court to the second reading speech.
GAUDRON J: Except that the heading is, in my reprint, "Ancillary equitable relief: injunctions".
MR MENZIES: Your Honour, we attempt to deal with that in our supplementary submissions, at paragraph (d) on the second page. In short, we submit that those words do not form part of the statute, and cannot be read as extrinsic material.
GUMMOW J: Why?
MR MENZIES: Because of the operation of the Interpretation Act, your Honour.
GUMMOW J: It seems a blast from the past.
MR MENZIES: Your Honour, I think, as your Honour Justice Gummow pointed out on the last occasion, the Interpretation Act was very extensively reworked, in part, and that reworking, apparently - and I was not aware of it - but your Honour was, of Mr Justice Mason, now President of the Court of Appeal. Could I take your Honours to the Interpretation Act. Section 35(1) provides that headings to Parts, Divisions of Subdivisions and Schedules "shall be taken to be part of the Act" save - - -
GUMMOW J: Yes. What about 34(2)(a) which assumes what you are saying about 35?
MR MENZIES: Yes, your Honour. Would your Honours just bear with me for a moment? We have a photostat copy of part of the Act, but - - -
GUMMOW J: Yes.
KIRBY J: Are you looking for 34(2)(a)?
MR MENZIES: Yes, I am, your Honour.
KIRBY J: Well, why do you not take mine?
MR MENZIES: That is very kind, thank you, your Honour.
KIRBY J: It is in the document that was handed up.
MR MENZIES: Regrettably, my copy does not have the relevant section. I do apologise, your Honour.
MR MENZIES: Well, your Honour, 34(2)(a) applies in circumstances where 34(1) operates. The exclusions in 35(3) and 35(4) do not apply, for the reasons that we have set forth in our submissions, so that when one reads those exceptions to section 35 the resulting effect is that one does not use that expression as a means of interpretation, in our respectful submission.
GAUDRON J: That does not seem to be what 34(2)(a) says. It rather assumes - it seems to be the case that 35(1) says "when it is part of an Act".
MR MENZIES: Yes, your Honour.
GAUDRON J: Section 34(2)(a) says, if it is not part of the Act but:
set out in the document containing the text of the Act as printed by the Government Printer -
which it is, I think. Mine is printed by the Government Printer, yes, then it can be taken into account for the purposes of 34(1)(a), namely, to confirm that the meaning of the provision is the ordinary meaning, et cetera.
MR MENZIES: Yes, your Honour.
MR MENZIES: Yes, your Honour.
McHUGH J: What does "Yes, your Honour" mean? Is there a "not" missing in paragraph 4(e) of your submissions? So:
Consequently, the heading is available for consideration as extrinsic material -
However, the last clause -
none of which arise in relation to section 46 -
would seem to indicate that you do not mean what it says.
MR MENZIES: Your Honour, there is not a "not" missing but it is not very well expressed. The effect of (e) is intended to be that the heading is not available.
GAUDRON J: Yes, but that depends on your saying that the ordinary meaning of the word "injunction" is not as I have put to you.
MR MENZIES: Yes, your Honour.
GAUDRON J: And if you take the view that the ordinary meaning of the word "injunction" in an action, which is the expression in the relevant provision of the District Court Act, is an order made in the exercise of what was formerly known as equitable jurisdiction, then you can have regard to it.
MR MENZIES: That is so, your Honour.
GAUDRON J: But if you take the view that that is not its ordinary meaning, you cannot. Is that the effect of your submissions?
MR MENZIES: I believe that is the effect of it. Yes, your Honour.
GUMMOW J: I am not sure what you say the ordinary meaning is. There are various statutes that use the term. If that is so the term takes its colour from the statute. What is its meaning in general law?
MR MENZIES: Well, your Honour, can I deal with it this way, by taking - - -
GUMMOW J: Other than as an equitable remedy.
MR MENZIES: Can I deal with it this way? The intention of the - - -
GUMMOW J: There is not one. That is the answer, I would have thought.
MR MENZIES: I beg your pardon, your Honour?
GUMMOW J: There is not one, other than what Justice Gaudron was putting to you, unless you can find some use of the term in a statute in which circumstance the term may take its colour from the statute and may have different characteristics to that which it has as part of the equity jurisdiction.
MR MENZIES: Well, your Honour, can I attempt to deal with it this way?
GUMMOW J: This is basic stuff, surely.
MR MENZIES: The intention of the legislature, as expressed in the second reading speech, was to give to District Courts a power to grant injunctions in common law actions similar to that in the Supreme Court. That power is one that has been exercised by various courts, both in New South Wales in the Federal Court and in other States of Australia, and in the United Kingdom in circumstances after judgment, as an exercise in maintaining assets post-judgment.
GAUDRON J: How is it an order in an action once judgment has been given? I can understand how it might be an order in relation to an action which is the expression used in the Federal Court Act, but the relevant provision here is an order in an action.
MR MENZIES: In our respectful submission, one does not construe that expression so narrowly so that it would exclude events which take place between the time when the statement of claim is filed and the matter is finally resolved. All the events that take place in relation to that are events in an action.
GAUDRON J: Except that the notion is that, as expressed in Jackson v Sterling Industries, that the other party, to use that expression, does not take any benefit in the assets the subject of the order. If there, in legal theory, some benefit accruing to the other side, you might regard it as an order in an action; but, once you take the view that it is not to do with party and party rights at all, then there is some difference between "in" and "in relation to".
MR MENZIES: But your Honour, with respect, the benefit to the party which seeks the injunction is the preservation of the asset to enable it to enforce it.
GAUDRON J: Yes, there may be a benefit in that sense, but there is no legal right or interest in the assets which are the subject of the order.
MR MENZIES: No, your Honour.
GAUDRON J: It is not like, for example, an order for the return of goods in an action in detinue.
KIRBY J: Why should we be sitting here to chisel away at a jurisdiction which has been granted to the District Court which it did not originally have, but which Parliament has gone to the trouble of granting under section 46 and in such ample terms, and in respect of actions, which is the traditional word used for common law pursuits? I just do not understand why this Court should be taking a narrow view of the grant of power to a court.
MR MENZIES: Your Honour, thank you for that. That, indeed, of course, is the position of the appellant.
GUMMOW J: It is not the position of the respondent, though.
MR MENZIES: The respondent, I beg your pardon, the position of the respondent.
GAUDRON J: And of course, individuals - the legal rights of individuals are as much to be protected from excessive use of jurisdiction by courts if it is not granted, as it is to be protected from the excessive use of power by any other body in the system of government.
MR MENZIES: Of course, your Honour.
KIRBY J: Mr Menzies, I was merely looking at what one does when one comes at a statute against a background where there has been no power to grant injunctions, where Parliament has granted that power; and bearing in mind the principle which I think Justice Gaudron stated in Knight's Case, that where you have a grant of power to a Court you do not chisel it away and reduce it because it has to apply to a myriad of different circumstances. I just do not see why we should be approaching this in a way that is, as it were, to frustrate what Parliament has done.
GUMMOW J: The question is, what has Parliament done?
MR MENZIES: Certainly, your Honour. May I just deal with Justice Kirby's comment.
GUMMOW J: Not what Parliament might have done or what some people think it did but what it did. You say, we cannot be assisted in that by looking at the full text of the Government Printer's copy of the Act?
MR MENZIES: As your Honour commented in a judgment dealing with grants of power, in David Grant v Westpac, courts ought not seek to read into grants of power limitations unless the statute clearly says so.
GUMMOW J: What I am putting to you is 600 years of meaning of the term "injunction". We see the term "injunction" in the statute. You say that means something else, and I say, is it something else? Does it bear its ordinary meaning? Section 34 of the Acts Interpretation Act suggests I can look at the Government Printer's text to allay my doubts and you say I cannot do that.
GAUDRON J: And I am suggesting you can also look at the text of the section, which is different from that of section 23 of the Federal Court Act, which was held to justify orders of this kind.
MR MENZIES: Can I deal firstly, your Honour, with Justice Gummow's comment and put it this way.
GAUDRON J: They are the same really.
MR MENZIES: The same proposition, as that the starting point must be an acceptance that it is:
inappropriate to read provisions which confer jurisdiction or grant powers to a court by the making of implications or imposition of limitations not found in the express words of the legislative provision.
And I read from David Grant v Westpac 184 CLR page 276. That must be the starting point. If one takes that as a starting point, then one looks then at what was the grant of power by the legislature and it is in the widest possible terms.
GUMMOW J: No, but you keep using these metaphors; it uses the term "injunction", which is not the widest possible terms.
KIRBY J: But it is an injunction in respect of action.
GAUDRON J: No, it is not "in respect of", it is "in any action".
KIRBY J: Well, it is "in an action" and an action is an action defined as an action in court, except for.....material exception, and actions in the District Court, as we all know, are of the widest possible variety; deal with the widest possible range of proceedings and many of them, most of them, are common law.
MR MENZIES: Your Honour, this Court in Jackson v Sterling Industries Ltd commented, albeit in passing, but without any suggestion that the comments were not made without approval, that whilst injunctions in the form of a Mareva injunction were generally given before judgment, they did take place after judgment and, in our respectful submission, there is no reason in principle - - -
GAUDRON J: That is not the point that I was putting to you. The point is not whether it is before or after judgment; it is the question of the nature of Mareva relief and if, as has been said and was said in Jackson v Sterling Industries Ltd, it is there to ensure the effective exercise of jurisdiction and not to create rights and interests in the property, the subject of them, then, such an order is easily described as an order in relation to an action. But if it gives no right to the parties to the litigation, then it is not so easy to say that it is an order in an action, because it is not providing relief as such to the parties or providing any judgment to them in respect of the rights and obligations in issue. There may be practical benefits.
MR MENZIES: Your Honour, in our submission, what is taking place when such an injunction is sought or such an order is sought, is in an action and, in our submission, it plainly is so and the fact that there is the difference which your Honour points out does not, in our submission, mean that it is not still taking place, something going on in an action. It obviously affects the ultimate - - -
GAUDRON J: But it is certainly a different provision from section 23 of the Federal Court Act?
MR MENZIES: No doubt, your Honour, yes.
GAUDRON J: Yes.
KIRBY J: But it is a provision which, so long as the pre-condition of it being in an action is fulfilled, which is the point that has just been debated, assimilates the power of the District Court to that which the Supreme Court might have granted if the action were proceedings in the Supreme Court, so it is definitional.
MR MENZIES: Yes, your Honour.
GAUDRON J: It assimilates the power to grant injunctions.
KIRBY J: Once you have an action in the District Court and so long as the matter is in any action then you are in the position that the Supreme Court judge would have been and you can grant relief which the Supreme Court judge might have granted if the action were proceedings in the Supreme Court, so it is definitional.
MR MENZIES: Yes, your Honour.
KIRBY J: Is there any light thrown on the formula that is used by what was said in the second reading speech about the significance of the words "in an action" because, theoretically at least, that phrase could have been left out. It could have said, "The court shall have the power to grant any injunction which the Supreme Court might have granted if the action were proceedings in the Supreme Court".
GAUDRON J: The Supreme Court would have jurisdiction to grant injunctions before an action were on foot in its equitable jurisdiction.
MR MENZIES: They are words of limitation but they mean nothing more than, in our submission, or the words that are silent and which could, perhaps, be added were "in any action in which the court has jurisdiction" and are intended to be limited in that manner because, of course, contrary to my learned friend's submission, we do not need to look for - - -
KIRBY J: I wondered if the emphasis is on the word "any" and that what Parliament was saying was that it shall not be only in actions of a particular kind which might have previously secured or attracted injunctive relief, but in any action.
GUMMOW J: But is not the force of those words to limit, namely to refer to the quia timet step, where one gets quia timet some injunctive relief on terms that you file your initiating process quickly but you get the order beforehand so there is not yet an action?
MR MENZIES: Yes, your Honour.
CALLINAN J: And you get your injunction on an affidavit, give an undertaking, to start your proceedings. Is that what happens in New South Wales?
MR MENZIES: In the District Court?
CALLINAN J: No, in the Supreme Court.
MR MENZIES: Yes, it does, your Honour, and sometimes, of course, without any paper at all.
McHUGH J: Yes, but can you get an order without having a named defendant?
MR MENZIES: No.
McHUGH J: At the moment I am having a little problem with the discussion about the term "action". I do not see why the term "action" does not include any proceeding in the court.
MR MENZIES: In our submission, it does, your Honour.; that it is any proceeding which is within the jurisdiction of the court.
McHUGH J: By definition in this Act it includes any proceeding in the court other than proceedings under Division 8 of Part 3 or under Part 4.
MR MENZIES: Yes.
GAUDRON J: That is criminal proceedings and proceedings for the possession of land.
MR MENZIES: Yes, not relevant for our purposes, with respect, but in anything else the power is there. In answer to your Honour Justice Kirby, I do not think there is anything in the second reading speech which assists us with that, on that particular issue.
KIRBY J: What about paragraph (2)(a) of section 46? That is in addition to the powers that are conferred, presumably, by section 46(1).
MR MENZIES: Yes, your Honour.
KIRBY J: How do those two subsections or subsection of the paragraph work together? That seems to be even more ample. It says, do not worry too much about 46(1) in relation to the power of the court to grant an injunction. In addition to those powers you have all the power and authority of the Supreme Court in like circumstances.
GAUDRON J: That would seem to relate to the power to require undertakings because it is in relation to the power to grant an injunction. So, if the Supreme Court can put "grant injunctions on terms" or require undertakings, and (2)(a) would seem to extend to that, would it not?
MR MENZIES: Yes, your Honour, and it is for more abundant caution to make sure that whatever the powers that the Supreme Court has in the exercise of this sort of power, the District Court has the same power.
CALLINAN J: The requirement in relation to undertakings is probably picked up in (2)(c), in any event, a matter of practice and procedure almost to require an undertaking perhaps.
MR MENZIES: Yes, your Honour. So that, the obvious purpose of the section is to make the powers, in our respectful submission, indistinguishable, and if there is such a power in the Supreme Court then also there is, in our respectful submission, in the District Court. If there is no power in the Supreme Court, obviously neither is there in the District Court. What the legislature was attempting to do was to create parallel jurisdictions in this area but limited to, in the first instance, limited by money limits, but so that a litigant could go to the court which would have the choice of going to either of those courts, and if it was a claim within the jurisdiction of the District Court, proceed then.
GUMMOW J: Now, Mr Menzies, in your outline you do not seem to rely upon what I thought on one view might help you which is the notion that an inferior court possesses some powers by way of necessary implication, namely, are they required - you ask yourself, "Is this further power required for the effective exercise of an expressly conferred jurisdiction?" Now, that is discussed by Justice Dawson in Grassby v The Queen [1989] HCA 45; 168 CLR 1 at 17 and the question would be, in this case, given these powers of enforcement with which a possession, and so on, in the provisions that were put to your opponent when he was addressing us, in the later sections of the Act as to enforcement, is this sort of order made in this case required for the effective exercise of that authority which is expressly conferred. In other words, could you make an order - is it a situation where you could support an order of this description, at least if it were designed to protect the situation until such time as a writ had been taken out to get possession and so an so forth.
MR MENZIES: Obviously, your Honour, we had not turned our mind too that proposition but we would adopt that, certainly. Our primary submission, obviously, as we have put it, there would be no need to look to that source of power, certainly given the Court has the powers to enforce execution in the ways that - - -
GUMMOW J: Yes, but then the trouble is that this order was not framed that way, this order was framed to last until satisfaction of judgment, was it not?
MR MENZIES: Yes, your Honour. Yes.
GUMMOW J: Until payment?
MR MENZIES: Yes. We say about that that that was designed to do no more than to enable the order to become ineffective without the requirement for any further steps to be taken, including returning to the Court if in fact in the meantime the judgment was paid. It has no other effect. It does not do anything to - it is not a means of enforcement in itself and has no other effect than that benign one of a - - -
GUMMOW J: But when would the order be spent - this order be spent?
GAUDRON J: Yes. What would happen if, for example, the judgment were not paid but the appellant were declared bankrupt?
MR MENZIES: Well, of course, there was - liberty to apply is inferred or implied because the order provided for - - -
GUMMOW J: No, that is a sort of a crack through which people try and slip when the question is, "Should an order be made?" and the answer is, "Oh, we will make an order requiring all the rest of these things which on the face of it look quite extraordinary and if you are upset about it you can come along and exercise liberty to apply." That is not the way courts should go about things.
MR MENZIES: Well, I was not conscious of trying to slip through a crack, your Honour.
GUMMOW J: I am not saying that was done here.
CALLINAN J: And in view of the way in which the judge dealt with the matter generally I would not have thought the prospects of an application would have been very promising.
MR MENZIES: Your Honour, we are not here to seek to support, necessarily, the manner in which his Honour presided over the litigation. We are here to simply say it is a question of power. Whether he made a mistake within power is another issue which we do not need to deal with. But we do not, with respect, see the - - -
CALLINAN J: I was just dealing with your point about liberty to apply, that is all.
MR MENZIES: I understand that, your Honour.
CALLINAN J: I rather suspect it might have been a futility, any such application to this judge.
MR MENZIES: His Honour certainly made it pretty clear what he thought about the defendant. There is no doubt of that, and hardly surprising, given the manner in which the defendant conducted himself before his Honour.
KIRBY J: Now, there is a power under Division 8 of Part 3, for temporary injunctions. This injunction here was not of that character. Can we ignore that Part altogether?
MR MENZIES: I am sorry, your Honour.
KIRBY J: This is on page 84 of my print. It talks of temporary injunctions. I got to that because you will remember that 46(1) talks of an action, an action is defined in section4(1) to exclude proceedings under Division 8 of Part 3. Division 8 of Part 3 includes section 140 and other sections dealing with temporary injunctions.
MR MENZIES: Yes, your Honour.
KIRBY J: Now, can I just completely ignore that? Is that irrelevant?
MR MENZIES: Yes, your Honour.
KIRBY J: Very well. So the power is to be found in 46, or it does not exist.
MR MENZIES: Section 46, or it does not exist, your Honour.
GAUDRON J: I am grateful to Justice Kirby for reference to that. What meaning do you say the word "injunction" has in section 140(1), and are we to take it that it means the same in section 46?
MR MENZIES: No, your Honour. What "injunction" means in 140 is a particular limited kind of injunction.
KIRBY J: It rather suggests that the word is not being used in any antique sense, but in the sense of a statutory order restraining somebody.
MR MENZIES: That is right, your Honour.
CALLINAN J: And draws a distinction in the section between an interlocutory injunction and a temporary injunction, whatever the distinction is I do not know.
MR MENZIES: The distinction in this case is that a temporary injunction is the one that is limited in time by subsection (2), to not exceeding 14 days, so that one can have a longer interlocutory injunction or one that is indefinite in time.
KIRBY J: This would not be the only statute where the word injunction has been used, except in its traditional chancery sense. I think Justice Gummow drew to my notice the other day, in another matter, that it is used in the Trade Practices Act as a statutory injunction, and it is not precisely the same, though the word has been used, it is not precisely the same as the traditional injunction.
MR MENZIES: No.
KIRBY J: We have to be a little careful, I think, to read into the word "injunction", in this statute, all of the nuances and history of chancery law.
McHUGH J: It is used in section 75 of the Constitution, is it not, 75(v)?
MR MENZIES: It is merely intended to express in a generic way an enjoinder by the court against a person either ordering him to do something or not do something.
GAUDRON J: But a garnishee is not an injunction, is it?
MR MENZIES: No, your Honour.
GAUDRON J: But it is an order of the kind that you have said.
GUMMOW J: And a detinue order, too; and an order for restoration of the chattel. All sorts of orders. What about an order to pay costs? On its face, it says you will pay costs. No one says that is an injunction. Why not?
MR MENZIES: Your Honour, in a sense, not the one that is generally used, an order to pay costs has that effect. There is no doubt about that. It does not then deal with what the word means when it is used in this sort of context.
GUMMOW J: But the question of what I am trying to get out of you is, what does it mean in this context? You cannot just say that it has a general, or it has the meaning of any imperative requirement imposed by a court. I used to sit giving directions to people, file statements of claim and prepare timetables and have discovery, and do all sorts of things, which I hope were imperative.....injunctions.
MR MENZIES: What a distinguishing feature of an injunction is that the power of the court to find a contempt has been committed if the injunction has not been - - -
GUMMOW J: Exactly.
GAUDRON J: I think that applies though to - - -
CALLINAN J: It applies to any order, does it not?
GAUDRON J: - - - other orders as well.
GUMMOW J: Other orders as well.
CALLINAN J: Meagher, Gummow and Lehane say "legal usage alone, and not logic, describes which orders can, and which cannot accurately be described as injunctions", page 531.
MR MENZIES: Thank you. In this context it is what has been regarded as injunctive relief in the Supreme Court.
KIRBY J: It is odd though that the heading talks of ancillary equitable relief. I know you say we cannot look at it, but it is hard for the eye to trip over the heading without noticing it. Do I understand that at common law headings were not available, do you know that?
MR MENZIES: I am sorry, your Honour?
KIRBY J: At common law, headings were not available to aid in the construction.
MR MENZIES: That is right, your Honour, yes.
KIRBY J: Is that because they were written in by officers of the Parliament afterwards, or is there some history behind that?
MR MENZIES: I am not aware of the history, your Honour. Before this Interpretation Act, there was specification as to what could and could not be read as part of the statute. My recollection is that the 1898 Interpretation Act provided that headings did not form part of the statute, and the present Interpretation Act is an amelioration of that position. What the common law position was prior to the 1898 Act, I am not aware, but I assume that it was consistent with that Interpretation Act. I do not know, your Honour.
Your Honours, consistent with what the legislature was attempting to do, as is expressed in the second reading speech, when one then - - -
McHUGH J: I am not sure that you are right about the common law situation. At common law, I think, headings could be taken into account.
MR MENZIES: As I said, your Honour, I do not know. I just assumed that it was in the same position as the 1898 Act.
KIRBY J: It has become a bit more important in the sense that at common law, or rather previously, we had those marginal notes down the side. One gets an impression that, perhaps, they were added by officers of Parliament after Parliament had dealt with the enactment in order to make it easier to get to them. That may be the source of the problem but now we do not have marginal notes, we have lots of headings.
MR MENZIES: Well, your Honour, a recent example going the other way is in the State Industrial Relations Act, the 1996 Act, which actually refers, as a note to the section dealing with the manner in which jurisdictional appeal is to be exercised, the note refers to a decided case in that jurisdiction and directs the reader to that case to construe the statute.
KIRBY J: One does not like to get into a situation where one is doing something which, on the face of it, is irrational. Parliament gets a Bill, the Bill includes the headings. It goes through Parliament as enacted with the headings and yet Parliament's own Interpretation Act tells us to, putting it very generally, ignore the headings. It all seemed a little bit irrational.
McHUGH J: I think common law headings could be taken into account. In Silk Bros Case [1943] HCA 2; 67 CLR 1 at 16 Sir John Latham said:
The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision.
Then he cites a Victorian case in 1893 and, again, in this Court in Bennett v Minister for Public Works [1908] HCA 50; 7 CLR 372 at 383 Mr Justice Isaacs said:
But where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment.
So, at common law they seem to have been taken into account when the wording was ambiguous.
MR MENZIES: Yes.
McHUGH J: Since I hold the view that all language is ambiguous divorced from its context then, perhaps, you could always take it into account.
MR MENZIES: Well, your Honour, perhaps I now will not make the submission that the language of section 46 is clear and unambiguous and there was no need, therefore, in any event to resort to the - - -
GUMMOW J: But 34(1)(a) goes beyond, perhaps, what Sir John Latham was saying, namely confirm the ordinary meaning, whereas 34(1)(b) is ambiguous or obscure.
MR MENZIES: Yes.
McHUGH J: And indeed in this Court, although in a dissenting judgment, in Concrete Constructions v Nelson 169 CLR 618, after referring to that passage of Sir John Latham I said it may be that it:
represents too limited an approach to the construction of federal statutes and that their headings must always be taken into account in determining the meaning of their provisions.
MR MENZIES: Your Honour, the only way in which - I withdraw that.
KIRBY J: Well I suppose you have to say that Parliament has turned its attention very specifically to this matter and in section 35 has said, "OK, you can look at some headings, but we are not going to take responsibility for other headings", and it has been very particular in it. It is peculiarly particular: parts, divisions and subdivisions and schedules, you can look at, but headings to a particular section are not to be taken as part of the Act and that is very particular.
MR MENZIES: Well, ultimately - - -
GAUDRON J: But it does not say that they cannot be taken into account. That is dealt with in section 34.
GUMMOW J: In construing the Act; the content of the Act being ascertained by applying section 35, taken into account as extraneous material; extraneous to the statutory text ascertained in the - - -
GAUDRON J: For the purposes in section 34(1).
MR MENZIES: Your Honour, we do make the submission that Parliament has been particular in the way that we have already submitted. If that be wrong - - -
GUMMOW J: Well it has been particular in telling you what the statutory text is. One should hope it would be.
MR MENZIES: Yes.
GUMMOW J: It has also been particular in telling you what extraneous material you can look at and for what purpose.
MR MENZIES: Well, your Honour, there may be some tension between the heading in section 46 and in what section 46 plainly says. If that be so, then the section ought be construed in the broad way that principle - - -
GUMMOW J: You use these metaphors, What does "broad" mean? You have heard what Justice McHugh said to you.
MR MENZIES: Yes, your Honour.
GUMMOW J: It is an ambiguous expression to use the word "broad". Now what its content?
MR MENZIES: Your Honour, the other way to deal with it then is to go back to section 66 of the Supeme Court Act, which gives the colour to what is the jurisdiction which is intended to be given to the District - - -
GAUDRON J: But Mareva injunctions, so-called, do not fall under that jurisdiction, do they? Was it not said in Riley?
MR MENZIES: Yes, the power to make orders in the nature of a Mareva injunction are either inherent power of the court or section 23, which is the general investment power of the court, that is so.
GAUDRON J: Well that is the general jurisdiction to act in the interests of justice.
MR MENZIES: Yes.
GAUDRON J: Which would seem to confirm the power of the Supreme Court to act where necessary to prevent an abuse of the process of a statutory court and things of that nature.
MR MENZIES: Yes, your Honour. It would be a curious construction of the statute, in our submission, if the result of it was that the Supreme Court had a power - - -
GAUDRON J: Under section 23.
MR MENZIES: - - - under section 23, to do all of those things in relation to injunctions, which are called Mareva injunctions, whether they be properly called in aid of execution or not, and then, in circumstances where the legislature, in our submission, invests a similar parallel jurisdiction in the District Court, for that court's jurisdiction to be limited.
GAUDRON J: But section 46 was there, was it not, even before the Mareva injunction, so called, were recognised.
MR MENZIES: Certainly. In our submission, that does not make any difference. If the legislature intended that the power was to be limited at the time when the statute was passed, then one would have assumed it would have said so as - - -
GAUDRON J: It depends whether it intended it to have all the powers of the Supreme Court or only those that come from section 66.
MR MENZIES: Well, in our submission, it had intended the former rather than the latter. If it was intended that the - well, perhaps, I could just take that a little further. Your Honour, in our submission, again, that is not the criterion upon which one would make such a decision. If the legislature intended that the power given to the District Court was, in a sense, circumscribed or ossified as at the powers of the Supreme Court in 1970 - - -
GAUDRON J: No, what we are trying to find is the meaning of the word "injunction".
MR MENZIES: I appreciate that, your Honour.
GAUDRON J: - - - as used when the Act was passed, at least that, and whether it is wider than equitable injunctions.
MR MENZIES: I appreciate that, your Honour, but if it was intended that the statute was to have the effect of limiting that power in the way that your Honour raises, then - - -
GAUDRON J: Not of limiting, not extending that far.
MR MENZIES: Well, expressing it, your Honour. Then it would have said so as the - - -
GAUDRON J: - - - was said, but not including Mareva injunctions which have not yet been invented.
MR MENZIES: No, of course not, your Honour. A simple example is section 24 of the Judicature Act which, in dealing with contempts, says, in terms, "The power of this court to order - - -"
GAUDRON J: You mean the Judiciary Act?
MR MENZIES: The Judiciary Act, I should say, yes. I was just hoping I was in England, your Honour. Section 24 of the Judiciary Act provides that:
The High Court shall have the same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England.
Now, if the legislature intended - - -
GUMMOW J: There is a constitutional dimension to that sort of provision.
MR MENZIES: Indeed, your Honour, but it is an example of an express limitation of power and regardless of the - - -
GUMMOW J: See, for example, there was a real doubt in 1901 whether the English Supreme Court would hold a minister in contempt, in various circumstances. They only got around to deciding they could in 1992 in the House of Lords in a case called Re M. But given the nature of the federal structure and the direct accountability of 75(v), ministers of the Commonwealth, one would have thought that power of contempt must have been there in 1901 in this Court. So, there is a problem about section 24 which we need not explore too far.
MR MENZIES: It sounds as if I should not, your Honour, but, could I deal with the same proposition in another way? Conventionally, the power to order a Mareva injunction was not a power which was created by Lord Denning, it was something which was identified by him. The power existed. The identification of it took place in 1975. Now, that being so, it matters not that there was no particular reference to it or that it was not identified at the time of the passing of the statute and the power of the Supreme Court, or the varieties of ways in which the Supreme Court exercises its power to grant injunctive relief develops with changing times. It would be, again, a curious construction if the legislature, clearly intending to have these parallel avenues for citizens to seek redress, limited the power in the way that my learned friend would have it and that is - or did not grant it in the way that my learned friend would have it.
McHUGH J: Well, it may not make much difference in the end, depending on one's approach to questions of statutory construction but it is difficult to resist the conclusion that section 46 was intended to give only an equitable jurisdiction to the District Court, particularly when you have regard to the intellectual climate of the time. You have got to remember that in New South Wales until 1970 you had the two streams, the common law and you had the Equity Division. In 1957 or 1958 the common law courts got some power, a series of sections in the 90s of the Common Law Procedure Act, to deal with equitable offences, but until 1970 the two streams were distinct. In 1970 you had the Supreme Court Act, in 1973 you have this Act, conferring on what until that time had been basically a common law court, although under the 1912 District Courts Act it had a very limited equitable jurisdiction. Then you give it this jurisdiction and you have a side note talking about ancillary equitable relief. It rather looks as if it was intending to give it an equitable jurisdiction, in addition to the common law jurisdiction that it had hitherto exercised.
MR MENZIES: The second reading speech refers to giving it jurisdiction in common law actions that the Supreme Court has.
GUMMOW J: Is there any power to appoint a Receiver in the District Court Act?
MR MENZIES: I do not know the answer to that question.
GUMMOW J: I cannot find one.
MR MENZIES: I do not think there is. There may be some limited powers for country sittings. There was, at certainly 1973, when the Act was passed, an intention that there be some power in the country but I do not think it extended to the appointment of a receiver. I am sorry, your Honour; I am almost certain that there is no power. I could not find it.
GUMMOW J: There is power in section 134 - well, there is jurisdiction conferred by section 134 which, I think, is the present descendent of that limited provision that Justice McHugh spoke about, the 1912 Act. It has been expanded.
MR MENZIES: Indeed there may be such a power to give effect to the powers that are expressed in the various subsections of section 134 inasmuch as if any of those specific powers - - -
GUMMOW J: The question would be: do you require a power to appoint a receiver as a necessity for the effective exercise of 134 jurisdiction?
MR MENZIES: Yes, your Honour.
GUMMOW J: It would a Grassby-type question, I suppose.
MR MENZIES: Yes, and that is what I was looking for when I was - an example might be (c), where orders are made under the - now the Family Provision Act would be the only relevant one.
GUMMOW J: (c) or (e), maybe.
MR MENZIES: And if there was a need to have a receiver appointed to some property under one of those orders.
McHUGH J: But you have to commence with section 44 which makes it plain that the general jurisdiction of the court is a common law jurisdiction.
MR MENZIES: Yes, your Honour.
McHUGH J: It is disposed basically of actions which could be assigned to the common law division. Section 46 is ancillary to that. You have 134 giving it a narrow equity jurisdiction.
MR MENZIES: Intended to deal with the specific matters that are raised in 134.
McHUGH J: But in substance, it is a common law court, if you use the headnote in 46, "jurisdiction to grant ancillary equitable relief" - - -
GAUDRON J: Which would extend, I imagine, to orders restraining the commission of further torts, and orders restraining the breach of terms of a statute or perhaps even restraining nuisances. At least that. You say it goes further, of course.
MR MENZIES: Yes, at least those things, your Honour. Given the intention, which is clear, in our submission, from reading the legislation as a whole, and then read with the comments in the second reading speech, to provide, effectively, parallel jurisdiction, so there was not a need, then, for a person commencing proceedings in the District Court to then seek separate proceedings in the Supreme Court when it came to deal with an issue such as this.
McHUGH J: Might it not be appropriate to describe the jurisdictions referred by section 46 as what used to be called the auxiliary jurisdiction of equity, that is, a jurisdiction to assist the common law jurisdiction?
MR MENZIES: Certainly, your Honour. It is - - -
McHUGH J: I think it is a concession that might have some dangers from your point of view, if that is what it is intended to do, that is to say, it is not really an equitable jurisdiction, in a general sense. It confers on the District Court what, in earlier times, was known as the "auxiliary jurisdiction", and the equitable jurisdiction that is conferred on the Court is that which is found in 134.
GUMMOW J: Which is a limited conferral of the exclusive jurisdiction.
KIRBY J: I can just see the members of the New South Wales Parliament in 1970, or whenever this came, 1973, pondering over this word, "equitable". It seems rather unlikely somebody has said, "We have a common law court, we are going to add to them something which has traditionally been equitable. It is a relief which is equitable in nature, but it is a most handsome one, and it is intended to be a big one that it is intended to be equivalent to the Supreme Court".
And we have to read the power conferred on a court as a statutory power, in handsome terms, to which somebody has attached this adjective. It seems to me the adjective has to, if necessary, give way to the ample power, because the power is expressed in extremely wide terms, and that is obviously the purpose of the Parliament.
McHUGH J: That is true but, just answering what Justice Kirby just said, in 1970 and thereabouts, 1973, these questions of exclusive jurisdiction, auxiliary jurisdiction, and divided jurisdiction between common law and equity, were the daily diet of the legal practitioners in New South Wales.
MR MENZIES: As is obvious, it is no longer my daily diet, your Honour. It really is, with respect, an appalling prospect, that there would be - - -
GAUDRON J: No, it is not, because if you read Grassby you will see that statutory courts have implied powers as necessary to make their statutory powers effective. It is not an appalling prospect to read section 46, in context, in the way Justice McHugh suggests; it is simply to ignore the decision of this Court in Grassby to put that submission that you are about to put.
MR MENZIES: Well, then, I shall not put it, your Honour.
McHUGH J: Inherent powers of any tribunal will take you a long way. I discussed it when I was in the Court of Appeal in John Fairfax v Police Tribunals.
KIRBY J: But is there not authority that says that a statutory court like the District Court does not have inherent powers; it has implied powers? That it is only Supreme Courts, with the power from the prerogative, that can have inherent powers.
MR MENZIES: It has power to give effect to - - -
KIRBY J: Yes, that is implied.
MR MENZIES: Which are implied.
KIRBY J: Implied in the grant of legislative power, which is all it has.
MR MENZIES: And, in our submission, all we need.
GUMMOW J: Well, that is the question, it seems to me, whether you bring yourself within what Justice Dawson said in Grassby.
MR MENZIES: Well, as I have already responded to your Honour concerning that, if we need to, then obviously we pray that in aid but, in our submission, we do not need to.
GAUDRON J: That is a power to do what is necessary, I think, or reasonably necessary.
GUMMOW J: Yes.
GAUDRON J: So it would, for example - - -
GUMMOW J: Required for the effective exercise.
GAUDRON J: - - - or it might, for example, extend to an order of the kind here made, but made until a writ of fi fa was taken out and registered on the title.
MR MENZIES: It would not mean that his Honour acted without power.
GAUDRON J: Yes, it would, I think, because the necessity controls the extent of the power, and that was, in fact, what Justice Deane said in relation to, what I shall now call Mareva orders, in Jackson v Sterling Industries.
MR MENZIES: Yes, I do not want to make any further submission upon that matter, your Honour.
KIRBY J: Have you dealt with paragraph 6 in your submissions, or are you about to come to that, because I do not think that can be right? It is one thing to confer on the District Court the power of the Supreme Court, but you do not thereby transmogrify the District Court judges into Supreme Court judges or members of the Supreme Court. The special reasons for respecting the orders of a Supreme Court are different from those of respecting the orders of a District Court.
MR MENZIES: Your Honour, what - - -
KIRBY J: I realise that it is not necessary to your argument. You can say paragraph 5 but paragraph 6 cannot be right, I think.
MR MENZIES: Your Honour, what we were attempting to say was that if one looks at the decisions which are referred to there, one sees this position, that in England in 1898 the County Court judges were given specific powers to deal with bankruptcy and to deal with some aspects of corporation law, obviously, without the constitutional position which applies here.
The granting of power to those judges was in a very similar form to that contained in section 46. Those decisions were authority for the proposition that whilst the judges of the County Court were exercising that power, prohibition would not run, would not lie against them because they were, for the purposes of exercising that power, in a similar position - - -
KIRBY J: I am not familiar with that line of authority. Is there a good passage that summarises the reasoning of the English courts?
MR MENZIES: Yes, certainly, your Honour. Could I take your Honours to them. Your Honour, the first decision is in the Court of Appeal (1898) 1 QBD 669. It is a decision of the Court of Appeal and, particularly, a decision of Lord Justice A.L. Smith. He deals with it quite briefly at page 671. He describes the matter as an appeal from the order of a grant of prohibition and then, at about point seven or eight on the page, appears the sentence, he having referred to the statutory power - refer to the corporation material has dealt with:
I have no doubt that, this county court judge having jurisdiction in the matter of the winding-up, no prohibition can go to him in respect of the order which he has made in that matter.
Lord Justice Smith then deals with the statute relevantly and at the last two lines on that page:
"Every Court having jurisdiction under this Act to wind up a company shall for the purposes of that jurisdiction have all the powers of the High Court, and every prescribed officer of the Court shall perform any duties which an officer of the High Court may discharge by order of the judge thereon or otherwise in relation to the winding-up of a company.
KIRBY J: Is there a point of distinction here that the prohibition goes to the particular judge whereas the rule about void and not challenging orders of a superior court is connected with the nature and powers and the jurisdiction of the superior court itself as a court?
MR MENZIES: In our submission, no, your Honour. Whilst the power goes to a particular judge in accordance with the statute, he then is exercising the power of the court and, for practical purposes, or for the purposes of this particular jurisdiction, he is effectively a judge of that court. His Honour goes on at 672:
By that enactment the county court judge is, for the purpose of winding up companies, invested with all the power possessed by the High Court in relation to a winding-up, one of which is the power to commit for non-compliance with the orders. I am of opinion that the remedy by prohibition is not available against a county court judge exercising the power of the High Court in relation to winding-up; but the proper remedy, if he exercises his jurisdiction wrongly, is by appeal. It follows that the appeal must be allowed.
Then that decision was referred to - - -
McHUGH J: Why are you relying on these cases for - as to what point?
MR MENZIES: That the decision of Judge Christie, even if wrong, is not void.
McHUGH J: It does not necessarily mean it is not void, does it? It just simply means that prohibition will not go.
MR MENZIES: And prohibition would go if he was acting beyond power and his decision was void. That is the way we get to it, your Honour. Then, that decision was referred to with approval in the same year, again in the Court of Appeal in a decision of The Queen v County Court Judge Northallerton (1898) 2 QB 680.
KIRBY J: Somebody at the Bar dreamed up this point and everybody was having a go at it.
MR MENZIES: It looks like that, your Honour.
KIRBY J: In 1898, it was all the rage, and here we are 100 years later, going through the same things.
MR MENZIES: It is what is sometimes referred to as an oldie but a goody, your Honour. At page 685 Lord Justice Vaughan Williams deals with the same proposition; refers to the decision I have just read with approval, only in that case he is dealing with a certiorari. That matter then went on appeal to the House of Lords in Skinner v Northallerton County Court Judge and Others (1899) AC 439. The Earl of Halsbury, the Lord Chancellor - - -
GUMMOW J: He always said things were plain cases.
GAUDRON J: There is not any dispute, is there? I do not think it is contended against you that if there was power to make an asset preservation order under section 46 then it stands until it is set aside on appeal.
MR MENZIES: Yes, your Honour.
GAUDRON J: I do not think that is contended against you.
KIRBY J: That is your point in paragraph 5, is it?
MR MENZIES: Yes, your Honour.
KIRBY J: This is a sort of a backup point?
MR MENZIES: Yes, indeed, your Honour.
KIRBY J: What did their Lordships say? Did they refrain?
MR MENZIES: Well, apart from the Earl of Halsbury commenting on what a simple case it was at 440, at 441 at about point 5 there is a paragraph beginning:
Now, this county court judge was sitting in bankruptcy -
and he goes on to say:
the statute itself has made the county court the High Court for this purpose.
And, he seems at the top of the page to be drawing distinction between a County Court proceeding properly so-called, and a County Court proceeding on a particular quality.
MR MENZIES: Yes, and we say, by analogy, this is a District Court proceeding on a particular quality, namely one where the judge has been given the powers of a Supreme Court judge and the same rules therefore apply.
McHUGH J: Well, but is not the argument against you is that this power is only exercisable in an action in the court and actions in the court are - actions of the District Court are such the actions conferred by section 44? So, we are not here exercising some independent jurisdiction.
MR MENZIES: No, your Honour.
McHUGH J: This is a power exercisable within a District Court action as such, so that these cases are not in point?
MR MENZIES: Well, we submit obviously to the contrary, your Honour.
McHUGH J: It is different from, say, a County Court being given a bankruptcy jurisdiction.
MR MENZIES: No, I understand what your Honour is putting but I am submitting to the contrary.
McHUGH J: Yes.
MR MENZIES: Your Honour, that is all we wish to say on the primary matter of power, other than the matters that are obviously contained in our submissions, both the initial submissions and the supplementary ones.
Can I deal, then, with the other two questions, that is, assuming power, was the order of the Court of Appeal manifestly excessive and, in our respectful submission, no, it was not, and what my learned friend has to demonstrate is error, it was well within the jurisdiction of the Court of Appeal to impose the penalty that it did for the reasons that the court set out.
KIRBY J: Is that jurisdiction still expressly stated under the Supreme Court Act? Is the Court of Appeal's jurisdiction resting on the Supreme Court Act?
MR MENZIES: Yes, your Honour, yes.
KIRBY J: And is it by the Rules or by the Act that they get jurisdiction in contempt matters?
MR MENZIES: It is provided for in the Rules at Part 55.
KIRBY J: My understanding is that it has been changed now and that many contempts go straight to a single judge of the Supreme Court.
MR MENZIES: Yes. Your Honour, the mechanism now is different in that the Court of Appeal is able to hear appeals from decisions of single judges who make findings of contempt. Here, as I think your Honour observed on the last occasion, although the Court of Appeal is sitting, effectively, as a court at first instance and coming to its own judgment, not as an appellate court, as to whether a contempt has been committed. In our respectful submission it makes no difference. The resolution of it still has to be, "Was the sentence manifestly excessive, was there error?" Now, in our submission - - -
KIRBY J: I am just trying to get into my mind what is the basis and foundation of the Court of Appeal's jurisdiction. Is it a provision of the Supreme Court Act that says where it is alleged that contempt of a court or tribunal, other than the Supreme Court, has occurred, such matters shall be within the jurisdiction of the Court of Appeal? Is that in the rules? Where does the jurisdiction come from? Is it signified by the judge of the District Court? Is that what happened here?
MR MENZIES: The mechanism here was that the judge identified the existence of a contempt of his order. He has no power to - - -
KIRBY J: Not being in the presence of the court or in the face and hearing of the court.
MR MENZIES: A distant contempt, I think it is sometimes called.
KIRBY J: So, he then - what does he do? He notifies the Crown in some way, and the Crown initiates proceedings in the name of the registrar of the Court of Appeal?
MR MENZIES: That is so, your Honour, yes. Part 55 deals with the mechanism by which that proceeds.
GAUDRON J: Is there a rule which says the proceedings are commenced in the name of the registrar? I think that is most undesirable. I mean, even if there is, it suggests - - -
GAUDRON J: It would be much preferable if the proceedings were commenced in the name of the Attorney-General, I should have thought.
MR MENZIES: Well, your Honour, the rule requires the registrar to commence the proceedings. It is Part 55, rule 11(3), which relevantly says:
Where:
(a) it appears to the District Court on its own view that a person is guilty of contempt.....
the registrar must commence proceedings for punishment of the contempt, and no direction from the Court shall be necessary to enable the registrar to do so.
So, once the contempt is identified by the District Court, then the inevitable result is that the registrar commences proceedings.
GAUDRON J: I can see why that has been done, but the difficulty is that it, particularly as in this case, the contemnor is not always represented, looks as though the court is aligned against that person. It would be better if it were obligatory upon the Attorney-General, however - - -
MR MENZIES: Well, one hopes your Honour's comments do not remain a cri de coeur, but - - -
GAUDRON J: No, it is just that one does have to be wary of the appearances in days when so many litigants are not represented.
MR MENZIES: Of course, your Honour. We do not wish to make any further submissions on the issue of sentence. Then remains the third question and that is - - -
KIRBY J: Did the Court of Appeal take into account the fact that this - or was it the fact that this was a sentence of imprisonment on a person who had never previously been imprisoned? Is there not some general principle in the Sentencing Act or even in the common law, that the deprivation of liberty should be a last resort? Could it not have been in this case, that orders would be made at least to give the appellant an opportunity to restore the situation ante in default of which some custodial sentence might be appropriate? Was any of that considered?
MR MENZIES: Your Honour raised that matter when the case was first heard. Can I deal with it in two ways? First, even if that matter was rejected, it does not demonstrate, in our respectful submission, any error. It may be that this was an alternative available. It does not follow that it was an alternative if not followed, indicates error.
KIRBY J: But given that the hearing of the contempt is heard by the final Court of Appeal of the State, then this Court in its consideration of the matter, special leave having been granted, is virtually in the position of the Court of Criminal Appeal because there has been no Court of Criminal Appeal to review the decision of the court below and if the statutory arrangements in New South Wales were different, as in respect of certain contempts they now are, you would have a review by a court which could look to the manifest excessiveness of the sentence.
MR MENZIES: We must accept that this Court is in the position similar to that of a Court of Criminal Appeal when looking at the sentence.
KIRBY J: Well, why is it not excessive to punish a man, with this sort of history, for doing something, by way of punishment depriving him of his liberty, without, as it were, first giving an opportunity to correct his position and put himself back in the status quo ante That would seem to be the appropriate punishment to me.
MR MENZIES: There are two aspects to my response, your Honour: first, in response to your Honour's earlier question, yes, the Court of Appeal did consider that the appellant had no prior offences, and that appears at page 404, lines 39 through to 51, where the court records the submissions of my learned friend, which included "that he has no prior offences".
On the second proposition, that is, "Was this not an excessive punishment?", the Court of Appeal was entitled to look at the matter at least in this sort of way. If it was a contempt, it was a wilful and flagrant contempt of the court. In circumstances were the contemnor was clearly aware of what he was doing, in the sense that he knew what an encumbrance was - because he used that word himself a couple of time, and he flagrantly disobeyed the court's order and encumbered the property further, probably, on the arithmetic, putting it beyond the capacity for that property once sold to pay out anything towards the debt, there was not a shadow of a doubt that the debt was owed.
GUMMOW J: How much was the debt?
MR MENZIES: It started off at $50,000, your Honour, but with time and interest, I think by the time it had got to the District Court it had - - -
CALLINAN J: About $105,000, I think.
MR MENZIES: About $100,000, and then there would be a considerable amount of interest that accrued after that. The property, as I recall, was worth about $150,000. There was a first mortgage to the Advance Bank, and my recollection was that it was about $50,000; a second mortgage to the credit provider, I cannot think of the name of it, of another $45,000. He had chewed up, one would suspect, most of the equity in the property and his evidence was that for some time the property had effectively gone to rack and ruin. So there was nothing there for this judgment creditor. He had been hanging about to get something from a debt outstanding then for 14 or 15 years. The chances of - coming back specifically to your Honour's question - such an order, (a) being obeyed, and (b) being productive of anything, one would have thought were about nil. The court was entitled to take the view that nothing else was likely to produce a result and that the court needed to express its condemnation of the conduct. Now, in our respectful submission, that was perfectly open to it on the facts and not excessive.
CALLINAN J: Mr Menzies, I thought Mr McQuillan told us that there was some evidence that he was too impecunious to be able to appeal.
MR MENZIES: Yes, that is right, your Honour, I think there was a - - -
CALLINAN J: Assume that to be so, and assume that the order was within power but clearly one that should not have been made, that it was inappropriate, irrelevant, discretionary considerations were not present, and for other reasons it should not have been made, and the he could not afford to appeal, should the Court take a different view of it, upon the basis that, had there been an appeal against the order, that appeal would have succeeded, not on grounds of power or absence of power, but for other reasons? Is that relevant to a question of excessiveness, or not, those matters?
MR MENZIES: In our respectful submission, no, because what the - - -
CALLINAN J: Why not?
MR MENZIES: - - - because what the Court of Appeal was doing was expressing its disapprobation for the conduct, and regardless of the - - -
CALLINAN J: But assume that, that disapprobation was expressed without having regard to the fact, assuming this to be so, that the order was plainly appealable, and that the appeal would have succeeded. in that context, does that make a difference?
MR MENZIES: In our respectful submission, no, it does not, because the essence of the punishment is in the disapprobation of behaviour. The behaviour which is relevant is the manner in which the appellant thumbed his nose at the processes of the court. He, within, I think - - -
CALLINAN J: Assume the court got it wrong - I know he should not thumb his nose at the court, but assume that the court plainly got it wrong, and that an appeal would have succeeded?
MR MENZIES: It depends how it got it wrong, your Honour. If it got it wrong in the narrower way in which your Honour is postulating, that is, it was within power but the judge did not - - -
CALLINAN J: For all sorts of reasons, it may have been wrong.
MR MENZIES: Whatever those reasons are - - -
GAUDRON J: Because it was expressed to be pending paying the debt, instead of pending the filing, the registration of a writ of fi fa.
MR MENZIES: In our submission, it makes no difference because of the manner in which the contemnor behaved. He walked out the door, down the street, and within days, had put the judgment creditor further away from his recovery. The appeal might have been successful in relation to the manner in which his Honour made some orders, but there is no suggestion, on the evidence - - -
CALLINAN J: The judgment would have stood.
MR MENZIES: - - - but the judgment would have stood, indeed. You see, the evidence is pretty plain. He produced a document; had the hapless judgment creditor, the plaintiff then, sign the document on a promise, it would seem, that there be some interest paid at 14 per cent, and the money would be repaid within a limited time. Some payment of interest were made, and then nothing for years and years. Then, if that is not bad enough, when it comes to a trial, not only does he deny the existence of a document which the judge accepted was plainly a document created by and signed by him, he produced some spurious arguments with respect to how the document might have come into existence, which clearly no Court of Appeal was going to accept. So the chances of him succeeding in having the judgment set aside are nil.
CALLINAN J: I do not think it is suggested that the judgment should have been set aside.
MR MENZIES: No. So, in those circumstances, one comes back to his conduct after the event. It really does not matter, in our submission, that the judge may have extended the order beyond a point where he should have on this question. Now, the third issue which - - -
GUMMOW J: Wait a minute. Why not nine months or one year or two years or two months?
MR MENZIES: That is a matter within the discretion of the sentencing court.
GUMMOW J: It is an extraordinary proposition, reakky. There must be some criteria.
GAUDRON J: What is the range?
MR MENZIES: Six months is a common penalty in the Supreme Court of New South Wales.
GUMMOW J: For what?
MR MENZIES: For contempts in the face of the court.
GUMMOW J: In the face of the court?
MR MENZIES: I am sorry, for contempts of the court.
KIRBY J: But are they contempts in the face of the court or contempts of this character which have occurred - - -
MR MENZIES: No, I am sorry, are not contempts in the - - -
GUMMOW J: One can think of some fairly well-known cases where very well-endowed people have been fined quite small sums of money. They have not been sent to prison for one day.
KIRBY J: The price of a cocktail party, we are told, a modest cocktail party at that.
MR MENZIES: They have been - - -
GAUDRON J: Perhaps it might be appropriate in this regard if you were to take out some material on penalties and provide a note of them to the Court.
MR MENZIES: We shall, your Honour, but I can inform your Honour - - -
GAUDRON J: Show it to Mr McQuillen before you do and see if he has any comment he wishes to make.
MR MENZIES: Of course.
GUMMOW J: One area which is suggested by what Justice Kirby was putting to you is the specific performance case where there is the recalcitrant vendor who disobeys an order for specific performance by going out and creating an encumbrance, for example.
MR MENZIES: Yes.
GUMMOW J: Now, there are cases of contempt in specific performance suits.
MR MENZIES: We will get - - -
GUMMOW J: I do not know if anyone has been to prison for six months, though, in my experience.
MR MENZIES: We will produce a note of that which we can gather, your Honour, but certainly - - -
GAUDRON J: Indicating the type of contempt involved.
MR MENZIES: Yes, I shall, your Honour. Certainly, there have been penalties which have ranged for substantial amounts - well, substantial, one would have thought, in objective terms, for contempts and imprisonment for periods as I have said - six months is not unusual.
CALLINAN J: A judge was reported this morning as having said in a celebrated trial that if he had been a jury he would have discharged himself. Obviously, in relation to daily contempts that are occurring, one would think, in the media.
MR MENZIES: Yes.
CALLINAN J: And presumably nothing is going to happen there.
MR MENZIES: No. I do not know the answer to that question.
CALLINAN J: No.
KIRBY J: The present appellant did apologise to the court. He sought to purge his contempt.
MR MENZIES: And the court did not accept it, your Honour. They did not believe him.
KIRBY J: They say, "While we accept the apology to the court, he did not expressly state the acts for which he was apologising. The court harbours residual doubts about its genuineness."
MR MENZIES: Yes.
KIRBY J: They do not reject the apology.
MR MENZIES: Well, they accept that he made the apology. They do not accept the genuineness of it.
KIRBY J: Did they have evidence there somewhere along the line, and it may not have been evidence below, and if so I will have to put it out of my mind, there was a suggestion that the appellant was overborne by the number of proceedings he was involved in and also that he had some psychological disturbance? Was any such evidence put before the Court of Appeal?
MR MENZIES: There was some, your Honour. There was evidence of a - certainly there was psychiatric evidence.
KIRBY J: Did they deal with that? They say at the top of 406:
We are unsure whether the contemnor fully appreciates or understands, even at this stage, the seriousness of his conduct.
MR MENZIES: Yes.
KIRBY J: So, they seem to be sentencing a person who did not really understand the seriousness of what he had done.
MR MENZIES: I think, with respect, your Honour, that was in the context not that he - no, I will withdraw that. If he did not appreciate the seriousness of his conduct then it was not as a consequence of lack of capacity to understand.
KIRBY J: Some of the considerations their Honours go on to deal with later on page 406 are clearly relevant considerations, such as the - what one might call general deterrence and the need to uphold orders of courts and not have people flagrantly and apparently deliberately disobeying them, but it is still a question in my mind as to whether such a sentence of six months was necessary in this case but you say, well, that is just a matter of discretion and views can differ on these things and one should leave it to the Supreme Court of a particular State to decide what is the appropriate penalty in that State in those circumstances.
MR MENZIES: And, your Honour, three judges of that court had the opportunity to see the appellant, and to hear his submissions. He gave evidence before them. Clearly, they accepted very little of it and they viewed his conduct in the way they have described.
Now, the final matter is the question of whether or not the sentence continues to run so that what is being conducted today is an entirely academic exercise. We made some submissions about that on the last occasion. They were, essentially, these, that either - or both of these submissions apply, in our respectful submission, one, the granting of bail and the expression of "the time ceasing to run", both by Justice Gummow and then subsequently the continuation of the bail by the Chief Justice on the special leave application, effected a stay of the proceedings which was within power of this Court. Tait's Case is the authority for that.
Alternatively, bail was granted on a condition put to the appellant and accepted by the appellant through his counsel. He was specifically asked whether or not he accepted the conditions of bail, one of which was time was not to run. For him to come to this Court now and submit that, regardless of that precise and direct acceptance of the conditions upon which he was released to bail, that time has run and he is now free and clear is, in our respectful submission, an invitation to your Honours to effectively approve an abuse of the processes of this Court because he - - -
KIRBY J: But, would we not have to have an order that itself, of our....., stayed the running of the sentence?
MR MENZIES: Your Honour, that, in our submission, was the effect of the order of Mr Justice Gummow.
KIRBY J: I know you say that but I could quite possibly have, myself, not made such an order because you do not always think about this rather difficult line of authority. But, without an order out of our power stopping the running of the sentence, by law, and by the authority of this Court, does not the sentence continue to run?
MR MENZIES: Yes, your Honour.
KIRBY J: Therefore, we have to make some - or at least arguably, have to make some order. You have to elevate the conditions of bail which are ancillary to his liberty, as distinct from touching the running of the sentence.
MR MENZIES: Our submission is, that is the effect of what - - -
GAUDRON J: The question of the sentence running or not running was raised in the Full Bench proceedings, was it not?
MR MENZIES: It was, your Honour.
GAUDRON J: When a further order was then made by the Chief Justice in terms earlier made by Justice Gummow.
MR MENZIES: That is so, your Honour. At least on that occasion, if not on the earlier occasion, counsel for the appellant was specifically asked, "Do you accept these conditions?", and he said "Yes".
KIRBY J: But that was in order that he could have his liberty. At least arguably I do take your point, and in terms of justice and what ought to happen, I think it is a very powerful argument to say, "Well, if you come on appeal, you have given these undertakings, and you should have to live with the consequences", but the question is, to my mind, a technical one, whether without an order staying the running of a sentence, that by the law as declared in this Court, the sentence just continues to run of its own force because no order has intervened to interfere with the order of the court below. It still has its validity from its order.
MR MENZIES: Your Honour, the order contained in one of the terms of conditions of bail was the clock stops running.
KIRBY J: Bail is liberty. Bail is nothing to do with the order.
MR MENZIES: Of course, your Honour, bail is as your Honour says, but, the condition of the bail had the effect of an order of the court. The clock stops. This Court can stop the clock as it did for Mr Tait. It has precisely the same effect, with respect. Those are our submissions, if your Honours please.
GAUDRON J: Yes, thank you, Mr Menzies. Yes, Mr McQuillen.
MR McQUILLEN: Thank you, your Honour. I was endeavouring to locate the reference to that part of the transcript which deals with the evidence, as I recall, was adduced from the appellant dealing with the matters that he was concerned about, namely the plethora of litigation.
I have not been able to quickly turn that up but my recollection is that he mentioned that he had suffered a very substantial costs order in some proceedings involving the Protected Disclosures Act.
GUMMOW J: Which statute?
MR McQUILLEN: The Protected Disclosures Act. It had something to do with his employment at the Department of Housing and there was some proceedings taken in relation to that, and also he had a proceeding which, I think, was raised by me and, if not, by the appellant in so far as his application for unlawful termination or wrongful dismissal from the department which was still on foot and also, I think, the worker's compensation proceedings which I believe was also before the court.
KIRBY J: Yes, but there are lots of people who have lots of cases, and worries, and problems, and debts. I mean, there are an awful lot of people in our society who have these problems but they do not go out and defy an order of the court which they are taken to understand because of the fact that they have used the language of the order. This man went out within days, he was just completely defying it. Unless there is some evidence that he had some psychological disturbance, that he did not really understand the order, he merely used words, then you have somebody who is really just thumbing their nose at an order of the court, and the courts just cannot allow that to happen.
MR McQUILLEN: Your Honour, there was evidence of an orthopaedic condition but there is also evidence in relation to a Dr Lennane that referred to Dr Roberts, which his Honour Justice Callinan raised with me on the last occasion we were here, dealing with his mental condition or a condition of the mind and although there was no material put forward before the Court of Appeal in relation to that condition of mind, it was clear for these factors, if I could say in the man's defence, that he was unrepresented at the hearing when the order was made and that this was a situation where it might be said, and is often said in plea of mitigation, that a person charged with an offence is entitled to one mistake.
Now, it is not to say that this is not a serious offence, it is a serious matter indeed. However, in all of the circumstances there were provisions, I think, under the rules, for a bond or some other appropriate order to ensure that he may be dealt with in this fashion of a custodial sentence if his conduct in a period of time was not satisfactory, and the court specifically referred, I think, to Maniam's Case, which was the case of the doctor who, I think, your Honour Justice Kirby sat on that matter, and that was the one where the doctor had breached the subpoena.
KIRBY J: That was where the order was made that the doctor go and do weekend work in a hospital which was short of medical staff. But what could you order in this case, and even if we might have ordered something different, I mean, we are dealing here with an appeal and we have to be convinced that what was done below was erroneous as distinct from something different from what we would have done. It is pretty clear that the Court of Appeal was affected by the fact that they were not impressed by your client. They thought he was possibly misleading the court and that he really did not have an appreciation that what he had done was a very serious thing. He pretended to apologise and they accepted it on its face value that he really had acted in a way which was just showing contempt in the lay sense as well as the legal sense.
MR McQUILLEN: Well, it may be said, perhaps, rather than against him, if it could be said in his favour, that this act occurred very shortly after he had suffered this order at the hands of his Honour Judge Christie. One could say it was not a planned move. Perhaps the inference could be drawn that this was a man who was perhaps disturbed by the fact that something had happened, it had taken away his only asset, whether he appreciated that fact or not.
KIRBY J: But this is against him. He has walked out of the court and within days he has defied a very clearly expressed order of a judge. I mean, what happens to our society if that becomes the common rule.
MR McQUILLEN: Yes.
KIRBY J: We are then in the world of lawlessness.
MR McQUILLEN: Your Honour, he had been seen by, what appears from Dr Jean Lennane's report at page 369 - - -
McHUGH J: I know, but your problem is that the Court of Appeal specifically rejected your submission that the breach arose out of a disordered state of mind?
MR McQUILLEN: Yes, quite so, your Honour, but there is a reference in page 369 in Dr Jean Lennane's report, where she says that she notes:
Dr Roberts is the only psychiatrist to have made a diagnosis of paranoid schizophrenia -
and, by reference to that, there may have been some explanation for that, notwithstanding the lack of further material that might have been of assistance to the court, because Dr Lennane had a specialty in whistle-blowing and she regarded the appellant as a person who was taken up with exposing what was going on in his employment as distinct from some medical condition.
KIRBY J: Could we properly interfere if, for example, we considered that a sentence of six months for a first offender, though many contemnors will be first offenders, was excessive and that the proper sentence was three months, two months? I mean, could the High Court of Australia interfere in this sentence and halve it, just because we think that six months is too much? What is the principle that we would be applying?
MR McQUILLEN: If that were available, my submission is, yes, because this man would have otherwise had, had he come through the process of a judge sitting at first instance which is now the procedure, a right of review to the Court of Criminal Appeal. Here, his only right of review, if he is entitled to one, would have been by way of special leave to this Court, which he was, of course as we know, granted, otherwise he would not have a right of review of that sentence. That was a significant matter, in my submission, so far as this Court determining what it should do about sentencing. It came to that.
KIRBY J: Would it have been feasible to require him to reverse the transaction? Was the transaction ever reversed, that is to say, that the asset was put back to conform to the order of the District Court and to protect the judgment creditor?
MR McQUILLEN: I do not - - -
GAUDRON J: Could not be done while the order stands, could it?
MR McQUILLEN: No, no, quite right. Yes, your Honour.
GAUDRON J: It is his only asset.
MR McQUILLEN: Yes, it was his home and there was a mortgage already there and it would have been - - -
KIRBY J: A mortgage was granted. I have forgotten the details since we last dealt with this.
MR McQUILLEN: There was a mortgage on the title. A loan was granted which was secured by, I think, a caveat. That is by HFC Financial Services.
KIRBY J: So they, ignorant of the order of the District Court, proceeded to extend credit to him.
MR McQUILLEN: To the other joint tenant.
McHUGH J: They spent the money. He had no money, but he did not offer any - I mean, that was one of the things that was held against him by the Court of Appeal, that even after he had been found guilty of contempt he had made no offer of reparation and, indeed, the court went so far as to say it seems at a substantial debt to the plaintiff, would be the last on the list of the contemnor's concerns, that is assuming he has any concern about the judgment debt.
KIRBY J: That is therefore a successful contempt effected with virtual financial impunity and the court is not just expected to give him a little rebuke.
MR McQUILLEN: No, your Honour, but, as has been said, imprisonment should be a last resort. True it is - - -
KIRBY J: But what else can be done in this case?
MR McQUILLEN: With respect, your Honour, he was in a different category to other persons confronted with the likelihood, or the possibility of being sentenced to imprisonment. He did not have a right of review, which would have otherwise been available, and so, therefore - - -
KIRBY J: The right of review does not necessarily get you out of a sentence of imprisonment, if that is the correct sentence. He is getting his right of review here, now, of a kind. And I still ask, what was wrong in principle, if the what the Court of Appeal did, given that they accepted that it was a deliberate contempt, that it could not be retrieved, in the sense of protecting the judgment creditor, and that it happened within days of the order, which they held he understood. They did not really accept he was genuine about his apology and he just thumbed his nose at the legal process, and that cannot allowed to happen in our sort of society, or we just have a lawlessness and defiance of the courts, and that they felt that in good administration of justice in New South Wales, they had to signal their disapproval, their punishment, and their discouragement of others from acting in the same way. All of that seems to me, with a six months sentence, it seems a bit high, but I do not see the error of principle.
MR McQUILLEN: There is no distinguishing feature, really, as has been referred to by the judgment at page 406, that not all wilful and deliberate interferences with the administration of justice, of which this was one, like others, attracts a custodial sentence. The court made that clear. We would say, one has to look at the circumstances of each particular offender, and true it is that there are instances where the circumstances would attract the custodial sentence. However, not all attract it, and the appellant here goes to his particular circumstances and says, "Well it is not any different to other wilful and deliberate interferences", and he should be considered on the merits of what he can say in mitigation of his particular situation.
I think there was, in the bail application, an affidavit of my instructing solicitor, Mr Walsh, regarding his expression, or how he had reacted to the imprisonment, but prior to being granted bail.
Could I deal, your Honours, with what is said in relation to section 46 and the power in relation to the District Court. I think in both my submissions and, indeed, in oral argument a great deal has been said about inherent jurisdiction. One of the points that I would make in support of the lack of power in the District Court of an order of this nature is that it is a general principle that once judgment or order is pronounced, after hearing both sides, the court does not do anything further in relation to that judgment or order. It is final. That being a general rule, that should put an end to the matter, and on the question of "in the action" point, it is my submission that there was no action then subsisting in respect of which an order in this nature could be made.
GUMMOW J: No, but there was a judgment debt had been created.
MR McQUILLEN: Correct.
GUMMOW J: And there were mechanisms of enforcement of that debt provided by the Act. Why, therefore, could not some order be made in the sort of terms Justice Dawson was using in Grassby to achieve the effective exercise of those remedies of a judgment creditor by protecting the status quo?
MR McQUILLEN: That is the function of a Mareva injunction to protect the status quo until judgment.
GUMMOW J: But the status quo is the existence of the judgment debt. That is the status quo now.
GAUDRON J: Or the availability of remedies.
GUMMOW J: Plus the availability of these remedies, yes, under the Act.
MR McQUILLEN: Those remedies were available or are available to a judgment creditor and those remedies - - -
GUMMOW J: They may be rendered nugatory, may they not, by activity which takes place between the date of recovery of the judgment and the attempted enforcement by exercise of these remedies? In that situation, does not what Sir Daryl Dawson was talking about apply?
MR McQUILLEN: Yes, because, your Honour - - -
GUMMOW J: If so, why was not this order supported in that way?
MR McQUILLEN: Because, your Honour, the order should only be directed where it may be directed at conduct which is inimical to the administration of justice. What happens after a judgment is that a party is entitled to deal with their assets and a judgment creditor is entitled to enforce the judgment in whatever way is available.
Now, it cannot be said that with that scheme in place, that if someone were to organise their affairs in a proper way or in a way where, for instance, if they moved home and paid off some debts and there was not much left for the judgment creditor, that could not be said to be trying to render a judgment nugatory.
In this case, I think the position was, there was never any attempt made between the time of judgment until I think it was August, bearing in mind that judgment was in April, to do anything execution of the judgment or, in fact, I do not believe that there was any attempt at all but the disclosure occurred in August 1994, I think it was, in respect to the existence of this charge, or the caveat in the borrowing of money against the property.
GUMMOW J: But the order, in any event, was unlimited - well, was conditioned to continue until payment of the judgment, not taking of steps to utilise the enforcement procedures.
MR McQUILLEN: Well, that is my point, essentially, your Honours, that if it was an order that could stand, it was one which should have been and limited to the judgment creditor having the opportunity or attempting to execute.
CALLINAN J: Why? Why should the judgment creditor have to execute? Why should not the judgment debtor just pay the judgment? That is what usually happens.
MR McQUILLEN: Yes, but, your Honour - - -
GAUDRON J: Well, there may be other creditors.
MR McQUILLEN: Yes. Also, your Honour, it would be a situation where a judgment creditor could sit back - - -
CALLINAN J: But if there are other creditors, as Justice Gaudron said, he could have himself declared bankrupt, could he not?
MR McQUILLEN: Yes.
CALLINAN J: He did not do that.
MR McQUILLEN: No, your Honour.
CALLINAN J: I am just offended by the notion that you do not have to pay a judgment until somebody commences execution proceedings. That cannot be right.
GAUDRON J: But this order might operate even beyond the execution process if the assets were not sufficient on execution to pay.
MR McQUILLEN: Yes.
GUMMOW J: Which would have been the case, would it not?
MR McQUILLEN: Yes, that would have been the case here on the available figures.
GUMMOW J: There would have been a shortfall.
MR McQUILLEN: Yes, but it is a judgment creditor position where quite often, as happens, the case is that there probably would have been a shortfall in any event without the discharge of the funds that were subsequently borrowed shortly after judgment.
CALLINAN J: He is committing an offence under the Bankruptcy Act as well.
KIRBY J: Perhaps you had better not make any admission that - - -
MR McQUILLEN: No. Of course the judgment creditor could commence bankruptcy proceedings - - -
KIRBY J: That would do him a lot of good.
MR McQUILLEN: Yes, now, for various reasons judgment creditors do not necessarily execute for a period of time or there might have been some - or the scheme that was available under the District Court Act was one, as I understood it operates, that the sale of land was not available until such time as some execution against personal property was carried out.
GUMMOW J: No, but the sensible thing for the judgment creditor to have done was to get a bankruptcy notice out as soon as possible which would, by reason of relation back provisions, strip the effectiveness of any of these manoeuvrings that then went on here, but anyhow - - -
MR McQUILLEN: Yes, except that the problem would have been that perhaps the mortgagee might have been taking, without notice - - -
GUMMOW J: Quite; well the mortgagee may have exercised power of sale.
MR McQUILLEN: Yes.
GUMMOW J: We do not know whether there was subsisting default under this registered security.
CALLINAN J: There was an earlier security anyway; I think it was a second mortgage, was it not? There was some other encumbrance in favour of another financier, I think.
MR McQUILLEN: Yes, I recall, yes. In regard to inherent jurisdiction, it is my submission - - -
GUMMOW J: That is not the right term, is it?
MR McQUILLEN: No, but it is used in a sense - - -
GUMMOW J: Necessary implications, is it not?
MR McQUILLEN: Yes, your Honour.
KIRBY J: This Court, Justice Deane I think, picking up something that Sir Nigel Bowen said, I think it is in Jackson's Case, that it is wrong in the case of statutory courts to talk of inherent jurisdiction, it is implied jurisdiction; it is implied from the statute, it is not inherent in the court.
MR McQUILLEN: Yes, in Taylor's Case, I think, that was - - -
KIRBY J: What is the citation?
MR McQUILLEN: [1979] HCA 38; 143 CLR 1, Taylor v Taylor.
KIRBY J: What page is it on?
MR McQUILLEN: Page 1, I believe it is.
KIRBY J: Do not worry.
MR McQUILLEN: And it is my further submission that the order was not aimed at what was perhaps the type of injunction order that Mareva injunction is used, namely to preserve the status quo and to prevent conduct inimical to the administration of justice, but was - and this is the point, in my submission, where it was without power, was that it was directed to assisting a judgment creditor, without regard to the real purpose of what an order would otherwise be in the nature of a Mareva injunction to ensure that there is the preservation of the proper administration of justice in protecting matters until such time as judgment is given or until both parties are heard, and indeed, post judgment, it is not in the nature of preventing conduct inimical to the administration of justice. Rather, it was in the form of assisting a judgment creditor, which is not what the District Court has power to do.
Unless there are any further questions, they are my submissions, your Honour.
KIRBY J: Well, just a moment. You have dealt with, first of all, item 2 of my list - that is to say the sentence. Then item 1 - that is to say the power. What about item 3? That is the power of this Court to, in the light of the order which is on page 432 - - -
MR McQUILLEN: I am sorry, your Honour. I thought I had dealt with that in my earlier submissions.
KIRBY J: Is there anything you want to say in answer to what is said on that, because it is certainly a matter that is troubling me.
MR McQUILLEN: Yes.
KIRBY J: I know the words that were used were that on a date to be fixed "to serve any balance of his sentence then remaining unserved". What does that mean? That means by reference to the principles of the common law. Now, what is the sentence unserved if the sentence has been ticking away. By the common law there is no sentence unserved, or rather, there is nothing left.
MR McQUILLEN: That is correct, your Honour.
KIRBY J: And it has expired. Is that your submission?
MR McQUILLEN: Yes, your Honour, and I dealt with that, I thought; and Your Honour has dealt with this, I think, in Parker's Case, Young's Case, and Whan v McConaghy also deals with this issue where the Sentencing Act specifies that there should be a starting date, and a date upon which the sentence is to conclude.
KIRBY J: We know all that, but you heard that Mr Menzies said, for us to uphold that submission is to allow you, in effect, having taken the advantage of conditions, including condition 5, and submitted yourself to those conditions for the purpose of bail, to take advantage of the fact that no order for a stay was granted, though clearly by that order a stay of the running of the sentence out of the power of this Court was intended. Now, Mr Menzies says that amounts to an abuse of process of the Court on your part, and that you should not, in effect, be heard to advance such an argument.
MR McQUILLEN: One of the - - -
KIRBY J: I should tell you that this is very important from my point of view, because even if one came to the view that your client had no merits on anything else, he could still walk out of a prison sentence by reason of this third point.
MR McQUILLEN: Yes. Well, your Honour, could I say this, that in an application for bail, it was an application made pending a determination of an application for special leave. Now, in that context, there were special circumstances because bail was granted.
KIRBY J: There is no question about bail either.
MR McQUILLEN: Yes.
KIRBY J: Bail was granted and properly granted. The question is whether, in default of a specific order that would effect the order of the court below and stop the order running, that by reason of that there is no sentence unserved. The sentence has been served. See Whan v McConaghy.
MR McQUILLEN: Yes, and it is my submission that it was nevertheless open, notwithstanding the undertaking, to the appellant to argue, if it was available to him whether - if the time had expired by the time his appeal came on, whether there was a power, in ordinary circumstances, for the court to require him to serve what was left remaining.
KIRBY J: That would involve this Court punishing him for contempt, though the power to do so is vested by New South Wales law in the Supreme Court of New South Wales Court of Appeal. Well, anyway, you submit we do not have the power?
MR McQUILLEN: That is as I understand the authorities and what - - -
McHUGH J: What power?
MR McQUILLEN: To resentence after a sentence has expired, or reactivate.
GAUDRON J: Well, we have got power to - if, for example, one came to the conclusion that the sentence was manifestly excessive, there would be power in this Court to resentence and to resentence with effect from a date that the Court specified, would there not?
MR McQUILLEN: Well, we have raised that as a ground of appeal and as excessive sentence.
GAUDRON J: Yes.
GUMMOW J: No, you are not answering your Honour's question.
MR McQUILLEN: Well, I thought that was the point. I am sorry, your Honour.
McHUGH J: That is not the point.
GAUDRON J: The point is that this Court would resentence, itself, if it came to the view that it - could resentence itself or could remit to the Supreme Court to resentence and in either case the sentence could be expressed to take effect from the date specified in the new sentence.
KIRBY J: Query whether that exists if the sentence has been ticking away and has been served and completed.
McHUGH J: Your best hope is that the appeal be dismissed.
GAUDRON J: On one view.
MR McQUILLEN: One view, yes, your Honour. Well, if one were to draw an analogy - perhaps, this is not a good analogy - but if a person had escaped from lawful custody and, whilst out, the sentence expired, it does not entitle a court to reactivate or resentence for the period of time that that offender was out. If that is the case with an offender who escapes from lawful custody, by way of analogy, this person, perhaps, is in a similar category.
McHUGH J: But why is not the proper construction of order 7, of the order made by Justice Gummow, at page 432, that time was stayed, that is, the sentence was stayed?
GAUDRON J: I would have thought it was necessarily implicit in it, I thought, even if not expressly stated.
MR McQUILLEN: Well - - -
McHUGH J: The only argument that you could even get off the ground to suggest the contrary is the introductory words on the following conditions, which appear at page 431, but the order is, "IT IS ORDERED THAT": read it in its context, the natural and ordinary meaning, is that the first five paragraphs are conditions. Paragraph 6, "that bail may be entered into before a Sheriff" is hardly a condition of bail. It is a direction of the court, and so - - -
KIRBY J: Costs would not be really a condition of bail, one would think. It is a separate order. It is a matter of reparagraphing the orders, that is all.
MR McQUILLEN: Well, bail is bail. An application for a stay is a different matter. A stay is a different matter. I think there was an application for a stay. I do not know whether that was dealt with, and I think bail was dealt with but certainly in the Court of Appeal that occurred. Now - - -
GAUDRON J: Well, there is one question - I suppose it may be too late - but, I mean, certainly, if this had been advanced by you at the special leave application and the sentence was still running, the consequence of that submission would have been to result in the revocation of bail, forthwith.
MR McQUILLEN: Of the bail, yes. Yes, I fully appreciate that, your Honour, and the undertaking was given by me on behalf of the appellant and I suppose all I can say is, your Honours, that as Justice Brennan said in the special leave application, that he - I think the point was raised by my then opponent that there was a problem, that the sentence might expire by the time the appeal might be heard and his Honour, the then Chief Justice, said that that was a question of power to be dealt with on the hearing of this appeal and, accordingly, that is the manner in which the matter is raised and - - -
McHUGH J: But, you see, in the context of the case, those conditions or so-called conditions 1 to 7 were seen by the parties as including a power to stay. At 426, Ms Latham specifically said in relation to those conditions 1 to 7:
I do not think there is any power in this Court to stay the operation of the sentence, and that is one of the orders which is sought.
So, she saw it as an order and his Honour made it. One reads the transcript and his Honour's order as an indication that his Honour was staying the sentence which, I would have thought, having regard to Tait's Case, was beyond argument.
GAUDRON J: And I would have thought was necessarily implicit in the orders made if not expressed.
MR McQUILLEN: Well, I can offer nothing further, your Honours.
GAUDRON J: Yes, thank you. Except, of course, one needs to deal with bail again.
MR McQUILLEN: Yes.
GAUDRON J: It would be proposed, unless counsel have something different to say, that bail be extended on the conditions set out in order 2 at pages 449 and 450 of the appeal book, subject to the further following order, namely:
That unless the bail order is earlier discharged, the appellant surrender himself to the Sheriff of the Supreme Court of New South Wales, Law Courts Building, Queens Square, Sydney, not later than 12 noon on the day notified to him by the Sydney Registrar of the High Court of Australia as the day on which judgment will be delivered in this matter.
MR McQUILLEN: I understand that, your Honour.
GAUDRON J: Yes. Any difficulties with it?
MR McQUILLEN: I cannot offer anything, your Honour, because I do not - - -
GAUDRON J: Mr Menzies?
MR MENZIES: No, I have no difficulties with it, your Honour, but just for the sake of more abundant caution, would your Honours revoke the order made on the last occasion that he surrender himself at 4.15 today.
GAUDRON J: Yes. That condition is revoked.
MR McQUILLEN: Thank you, your Honour.
GAUDRON J: The Court will consider its decision in this matter and adjourn now until 10.15 am tomorrow morning.
AT 12.44 PM THE MATTER WAS ADJOURNED
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