PERKINS v HARRIS [1993] NSWCA 209

PERKINS v HARRIS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 12 July 1993

[1993] NSWCA 209

Mahoney JA. This matter comes before the court this morning on a Notice of Motion brought in a proceeding in the defamation list. It is a Notice of Motion seeking a declaration that the plaintiff in the proceeding in the defamation list is guilty of contempt of court, the contempt being, as I understand the matter, that he — and it is alleged by telephone — spoke to a person likely to be a witness in the proceeding for the purpose of threatening or dissuading him from giving evidence. (I do not, by what I have said, seek to paraphrase the statement of charges, but merely to indicate the general nature of them).

Whether a proceeding by way of Notice of Motion is a proper proceeding for bringing before the court a charge of criminal contempt is a matter upon which I express no opinion. Whether the matter ought be dealt with as a separate proceeding in this Court by initiating process such as asummons is a matter which may require consideration. However, it is not an issue between the parties at the moment.

The Notice of Motion seeks a relief ordinarily sought in a contempt proceeding of this kind, namely, a declaration that the plaintiff, the opponent, has been guilty of contempt, and appropriate orders.

It seeks also an order restraining the plaintiff from attempting to influence or dissuade any person from giving evidence on behalf of the defendant, and a variation of that order, as set out in par 5 of the Notice of Motion. It seeks also an order that further proceedings in the defamation action be stayed until the determination of the contempt proceedings.

When the matter came before me for hearing it was indicated it was desired that the court give appropriate directions for the hearing of the contempt matter, that is, the contempt aspect of the proceedings. It appears that two affidavits have been filed by way of evidence for the complainant in the contempt proceeding and that it is not proposed to file any other evidence. It may be that the affidavits will require, as to form, to be reformulated and that substitute affidavits will be filed. I have indicated this should be done on or before 19 July 1993.