Citation: Prothonotary of the Supreme Court of New South Wales v Dangerfield [2015] NSWSC 1895
Court: Supreme Court of New South Wales
Date: 14 December 2015
Judge(s): Adams J
Background
A woman was called as a prosecution witness in Local Court proceedings against her brother on a charge of common assault. She had previously made a statement to police implicating him, but when called to give evidence she sought to exculpate him with an account that contradicted her statement. She was declared an unfavourable witness under s 38 of the Evidence Act 1995 (NSW) and cross-examined by the prosecutor, but then refused to answer further questions.
The magistrate warned her of potential consequences on several occasions and gave her the opportunity to obtain legal advice, which she did. He then decided she appeared to have committed contempt and referred the matter to the Supreme Court under s 24(4) of the Local Court Act 2007 (NSW). The Prothonotary commenced contempt proceedings in the Supreme Court.
The witness sought a declaration that the magistrate had denied her procedural fairness in making the referral, and that the summons should be set aside as a consequence.
Legal Issues
- Whether a magistrate is required to afford a person an opportunity to be heard before deciding to refer an alleged contempt to the Supreme Court under s 24(4) of the Local Court Act 2007 (NSW)
- Whether the failure to afford that opportunity invalidated the referral and deprived the Supreme Court of jurisdiction to hear the summons
- Whether subsequent submissions made after the referral cured any procedural fairness defect
Decision
Issue 1: Duty to afford procedural fairness before referral
Adams J held that a magistrate confronted with an apparent contempt has three courses available: determine the contempt personally, refer it to the Supreme Court, or take neither step. Before choosing among those courses, the magistrate must give the alleged contemnor an opportunity to be heard on each question, including whether the conduct amounts to contempt, whether referral or self-determination is appropriate, and whether the circumstances warrant any action at all (at [4]). His Honour concluded, following Mahoney JA in Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459, that procedural fairness is required at this stage, notwithstanding authority characterising the referral decision as ministerial in nature (at [11]).
Issue 2: The magistrate's approach in this case
The court found that the magistrate treated referral as automatic once he concluded the witness appeared to have committed contempt (at [12]). He did not invite submissions on any of the three available courses. Adams J noted that there were potentially significant personal circumstances, including the witness's children and residence outside Sydney, that might have pointed toward the magistrate resolving the matter himself or taking no further step (at [12]). The summary manner in which the decision was made meant those matters were never put before him (at [12]).
Issue 3: Whether subsequent submissions cured the defect
The Crown Advocate pointed to submissions made on the witness's behalf after the referral to the Supreme Court, which were forwarded by the Prothonotary to the magistrate. Adams J found these did not cure the defect. Those submissions addressed whether the proceedings should continue at all, not whether the magistrate should have determined the matter himself. More fundamentally, the original decision was a nullity and its informal reconsideration was not a corrective step (at [14]).
Issue 4: Consequence for the Supreme Court's jurisdiction
Adams J held that the void referral meant the Supreme Court lacked jurisdiction to entertain the summons (at [19]). In a criminal matter, the discretion to do otherwise would favour the defendant unless significant public interest pointed the other way. No such interest was present here (at [19]). The dismissal of the summons left it open to the Local Court to reconsider the matter with procedural fairness properly afforded.
Orders Made
- Summons dismissed
- The matter is remitted to the Local Court for hearing and determination in accordance with the judgment
- No order as to costs
Key Takeaways
- Before deciding whether to refer an alleged contempt to the Supreme Court under s 24(4) of the Local Court Act 2007 (NSW), a magistrate must give the alleged contemnor an opportunity to be heard on all three available courses: self-determination, referral, or no action (at [4], [11]).
- A magistrate who treats referral as the automatic consequence of finding an apparent contempt fails to exercise the discretion correctly and denies procedural fairness (at [12]-[13]).
- A referral made without affording procedural fairness is void, and the Supreme Court therefore lacks jurisdiction to hear contempt proceedings commenced on the basis of that referral (at [19]).
- Informal post-referral submissions forwarded by the Prothonotary to the magistrate did not retrospectively cure the procedural fairness defect, particularly where those submissions did not address all available alternatives (at [14]).
- Dismissal of the summons for want of jurisdiction does not extinguish the underlying matter. The Local Court retains the ability to reconsider it, and is not limited to the same magistrate who made the original referral (at [19]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 341
- District Court Act 1973 (NSW), ss 199, 203
- Evidence Act 1995 (NSW), s 38
- Local Court Act 2007 (NSW), s 24
- Supreme Court Rules 1970 (NSW), Pt 55 r 11
Cases
- Commissioner of Police v Reid (1989) 16 NSWLR 453
- Killen v Lane [1983] 1 NSWLR 171
- Medical Board of Queensland v Byrne [1958] HCA 40; 100 CLR 582
- Registrar of Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459