BORDER MORNING MAIL v HANSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 14 October 1988, 14 October 1988 [1988] NSWCA 18 PRACTICE AND PROCEDURE — Court of Appeal — remission of the determination of questions of fact to the Common Law Division — whether appropriate — contempt proceedings — disadvantages of trial in court of Appeal referred to — absence of appeal on findings of fact, as of right — whether appropriate to remit fact finding — possible importance of opinion as to credit of witness — significance of Parliament's assignment of contempt proceedings to the Court of Appeal — held; Matter reserved for later determination. New South Wales Bar Association v Maddocks, unreported, CA, 23 August 1988 (1988) NSWJB 143 referred to. Supreme Court Act 1970, s48(2)(i); s51(4). ORDERS 1. I vacate the hearing of the motion for contempt before the Court of Appeal on 15, 16 and 17 November 1988. 2. I vacate the return of the motion for access to documents produced on subpoena which was listed before the Court of Appeal on 31 October 1988. 3. The summons will remain in the list of the Court of Appeal. 4. List the proceedings for mention before the Court on the first return date in 1989 to be fixed by the Registrar and notified to the parties. 5. Costs of the proceedings before the Court today to be costs in the summons. Kirby P This matter was put in the list today for the purpose, primarily, of determining whether It should proceed to a hearing before the Court of Appeal on 15, 16 and 17 November as listed. A second question which arises if it is to proceed on those days is whether I should, in pursuance of s51(2) or s51(4) of the Supreme Court Act 1970, assign to the Common Law Division the proceedings, or a part thereof, for the determination of factual matters in the proceedings, in advance of the hearing before the Court. The matter comes to the Court in the exercise of the Court of Appeal's jurisdiction in respect of contempt of court. Parliament has assigned a large part of the Supreme Court's jurisdiction in that regard to the Court of Appeal. The normal venue for the matters so assigned will therefore be the Court of Appeal, ie before three judges of the Court as s48(2)(I) of the Supreme Court Act 1970 envisages. There are, however, certain practical difficulties in the resolution of disputed matters of fact before a tri-partite bench. The difficulties include the added length of time typically required by the hearing of such proceedings; the consequent lack of the opportunity for appellate review as of right of findings of fact made; the greater difficulty of securing rulings on evidence In the course of such proceedings because three minds must meet; and the other considerations which were referred to by the Court in discussion of this matter in the recent decision in the New South Wales Bar Association v Maddocks unreported, CA, 23 August 1988; (1988) NSWJB 143. (See especially my comments and those of Samuels JA). When, however, the matter came before me this morning, an application was made to vacate the hearing before the Court of Appeal in November on a different ground. I received, without objection, a report of Dr Michael Giltrap of 13 2 UNREPORTED JUDGMENTS October 1988 concerning a proposed witness in the proceedings, Ms Louisa Hanson. This report said, relevantly: "Ms Louisa Hanson has requested a letter stating that she is medically unfit to testify in the proposed court case pending. Unfortunately Louisa has recently suffered severe prolonged stress which has resulted in a dangerous breakdown In her health. I consider that she is not fit for court proceedings and would strongly support her application not to appear. The application to vacate the dates for the hearing was opposed by counsel for the opponent. He points out that the solicitors for the claimant have previously been anxious to have the matter heard early in the Court of Appeal. The opponent is also entitled to rely upon his interest in having an early hearing of the charge. It is, as is often said, a charge criminal in nature. It should, therefore, be determined quickly. However, the medical report which has been admitted and which has not been tested by cross-examination, does indicate that in the opinion of Dr Giltrap, Ms Hanson is not in a position to appear in the proceedings. I take that to mean the proceedings which are listed in November 1988. I am prepared to infer that Dr Giltrap knew of those proceedings and of Ms Hanson's proposed part in them. It is plain, from a consideration of the charge which is contained in the amended notice of motion and of the facts which were reviewed in some detail in the earlier decision of the Court in Border Morning Mail v Hanson unreported, CA, 25 November 1987, that Ms Hanson will indeed be an important witness for the claimant in the proceedings. The position is, therefore, to be considered now in the light of the evidence that Ms Hanson has suffered a breakdown of her health and is not, in the opinion of her doctor, fit to appear. It was suggested that the medical report was inadequate to sustain vacation of the hearing date, upon two bases. First, that Dr Giltrap is a gynaecologist by speciality and, secondly, that he does not precisely say when it is that Ms Hanson is unfit to appear. Nor does he say when, in the future, she may become fit to appear. I do not consider the first matter mentioned disqualifies Dr Giltrap from expressing his expert opinion. For convenience it is unusual for medical practitioners to specialise. However, I can well understand that a person with the special qualifications of Dr Giltrap would be in an excellent position to assess the ability of his patient to appear in court. Although it is true that he does not state when Ms Hanson would not be able to appear, I am prepared, as I have said, to infer that he was aware of the pending proceedings in the Court and that it was his view that she was not fit to appear at them. Accordingly, I am satisfied that the forthcoming hearing in November 1988 before the Court of Appeal should be vacated. I will so order. Three other matters remain to be determined. The first is whether or not the Court should proceed with the return of an application for access to certain documents which are the subject of a subpoena apparently directed to the medical advisers of Ms Hanson. This is a question which arose in the civil trial which was the occasion of the adjournment application referred to in the earlier proceedings in this Court. I am told that, during the course of that trial, the result of which was a compromise on terms which were unknown to me, Hunt J ruled that access to the documents referred to in the subpoena should be reserved until after his Honour had had the opportunity to determine the relevance of such documents (if any) to the issues URJ BORDER MORNING MAIL v HANSON (Kirby P) 3 of the trial as they became known during the trial before him. He took that course out of the defence of the privacy of the patient, Ms Hanson. I would take the same course. It seems to me that until the relevance of the issues are known and, more particularly, until it is known whether the proceedings will continue at all, it is premature to have rulings upon the access to the documents addressed to Ms Hanson's medical advisers and referred to in the subpoena. Accordingly, I would vacate the return of the subpoenas before the Court on 31 October. I do not consider it appropriate, at this stage, for the Court to make rulings on access to the documents referred to in them. The subpoenas may be returned again in due course but before the Court hearing the summons. The two remaining questions are inter-related. They relate to the guest ion of the length of the hearing and whether there would be important issues of fact, of complexity and detail, which would be involved and also the venue of the resolution of such questions of fact. Again I think it is premature to make a decision upon those questions. I was originally minded to contemplate making an order under s51(2) remitting the resolution of specified factual matters to the Common Law Division. However, I am not now so sure that that ought to be done in this case. It is pointed out for the opponent that, upon one view of the facts, they will he confined to the matters in the statement of charge which relate strictly to the conversations between the opponent and Ms Hanson at which conversation there was one other witness, namely, Ms Hanson's mother. If this is so, then the complexity of the issues for trial which prompted the remarks which I made in Maddocks may not present in this case the same necessity of the remission of the matter to the Common Law Division. There are also two countervailing considerations, one of which I have referred to. These are first, that Parliament has seen fit to assign to the Court of Appeal the resolution of contempt matters such as these and, secondly, that a vital question which may emerge in the case is the acceptance of the credit of Ms Hanson and, if he gives evidence, the opponent. It would be arguably unfair to the opponent that that vital issue should be transferred to another tribunal whose finding on the matter could effectively decide the outcome of the case. Although it may be inconvenient, time consuming and have certain disadvantages from the point of view of all parties and of the Court, it is possible that in this case it will be necessary for the Court, if the matter proceeds, to hear the whole of the evidence. On the view of the opponent that evidence will be limited. Even if it is not, it may be that fairness requires that it be heard in its entirety by the Court of Appeal. The result of these considerations is that the orders I make are; 1. I vacate the hearing of the motion for contempt before the Court of Appeal on 15, 16 and 17 November 1988. 2. I vacate the return of the motion for access to documents produced on subpoena which was listed before the Court of Appeal on 31 October 1908. The summons will remain in the list of the Court of Appeal. 4. List the proceedings for mention before the Court on the first return date in 1989 to be fixed by the Registrar and notified to the parties. 5. Costs of the proceedings before the Court today to be costs in the summons. » 4 UNREPORTED JUDGMENTS I make it clear that the return of the matter for mention in February 1989 is for the purpose of receiving a report from the claimant concerning the prognosis of the availability of Ms Hanson to give evidence in the proceedings. Because the proceedings are criminal in nature the Court will not permit a lengthy delay in the hearing. If Ms Hanson's position in February 1989 is the same as today and her ability to give evidence is still uncertain, it will then be for the Court to consider whether fairness to the opponent in these proceedings requires that they should be terminated. That is a matter upon which I have formed no final view. It is a matter that will have to be determined by the Court when the matter is next mentioned, or thereafter as the Court determines. In order that the mention in 1989 be useful it will be expected that the claimant will have more satisfactory and detailed evidence, if that is available, concerning the fitness of Ms Hanson to give testimony in these proceedings. The brief report of Dr Giltrap which I have used today for the purpose of making the orders that have to be made is not entirely satisfactory. I have resorted to it only in view of the pendency of the proceedings of the Court.