TONER v ATTORNEY GENERAL FOR NEW SOUTH WALES [1991] NSWCA 267

TONER v ATTORNEY GENERAL FOR NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, CLARKE JA and Hope AJA 8 October 1991, 19 November 1991

[1991] NSWCA 267

CONTEMPT — legal practitioners — barrister — contempt in the face of court — dispute as to whether barrister objected to tender of unserved medical report — judge holds barrister did not object — barrister contends that he did and shouts at judge — judge holds barrister in contempt of court and reprimands him — appeal — held: (1) In proceeding against the barrister for contempt the judge did not, as required, both by s199 of the District Court Act 1973 and the common law cause the contemnor to be informed of the contempt charge; require him to make his defence; and hear him before determining the charge. In re Pollard (1868) LRPC 106, 120 (PC); Coward vy Stapleton (1953) 90 CLR 573, 580; Lewis v Judge Ogden (1984) 153 CLR 682, 693; Macgroarty v Clauson (1989) 167 CLR 251 applied; (2) Discourtesy (as by shouting) did not of itself amount to contempt in the face of the court. Lewis v Judge Ogden (1984) 153 CLR 682 applied; Parashuram Detaram Shamdasani v King-Emperor [1945] AC 264 considered; (3) The conviction of contempt revoked and the charge of contempt dismissed but without costs. District Court Act 1973, $199, s200,201,202. County Court Act 1958 (Vic) s54A. District Courts Act 1967 (Qld) s105.

Kirby P, Clarke JA and Hope AJA. This appeal, pursuant to s201 of the District Court Act 1973 (the Act) is brought to the Court to challenge a decision of a judge of the District Court (Lloyd Jones DCJ) in convicting the appellant of contempt of court.

A barrister is convicted of contempt

Mr Robert Toner (the appellant) is a barrister. On 5 February 1991 he appeared for the defendant in a case heard by Lloyd Jones DCJ in the civil jurisdiction of the District Court in Sydney. The case was unremarkable, being brought by one Cecil Hill against the Government Insurance Office of New South Wales (GIO) for damages for personal injuries arising out of the alleged negligence of the driver of a motor vehicle insured by the GIO. Liability in negligence was denied. The GIO's case was that Mr Hill had proceeded through a red light and had himself caused the accident. Lloyd Jones DCJ ultimately determined that issue against the GIO. Evidence addressed to the resolution of the issue was complicated by an apparent misunderstanding which arose between his Honour and a police witness interposed in Mr Hill's case. Another complication derived from the acknowledgement that Mr Hill had a number of pre-accident conditions which made the identification of his compensable disabilities the subject of contest. However, save for these issues of controversy, the case was straight-forward.