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. Mr Young, for the claimant, has indicated the time allowed will be sufficient for the purpose. By that time it should be clear what the evidence of the applicant in the contempt proceeding will be. The opponent respondent to the proceedings, that is, the plaintiff in the main proceeding, is not, of course, required to indicate what course he will take, and his counsel has, quite properly, declined to give any indication in that regard. Mr Young has sought an order for interim relief, restraining any attempt to commit offences of the kind here in question. Counsel for the opponent, without prejudice and without admissions, has given an undertaking on behalf of his client that he will not attempt to persuade others not to give evidence in the proceedings in a way which would constitute contempt. That undertaking appears 2 UNREPORTED JUDGMENTS sufficient for present purposes and no suggestion has been made to the contrary. That disposes of that aspect of the matter. There has been a difference between the parties in relation to the orders sought in par 6 of the Notice of Motion, namely, that further proceedings in the action itself be stayed until the determination of the matters here in question. The contempt proceeding is essentially a criminal proceeding in its nature and this is to be borne in mind in determining whether it is to be heard before the pending proceedings out of which it has arisen, or whether it may stand until that proceeding has been dealt with. It is not necessary for me to rehearse the considerations which affect the Court in making decisions of this kind. Counsel for the respondent has indicated that he is prepared to proceed with the main proceeding, the defamationproceeding, notwithstanding the pendency of the contempt proceeding, and that his client will answer any questions and give any evidence in the main proceeding, the defamation proceeding, notwithstanding the pendency of the contempt proceedings and the possibility that the answering of the questions, or the giving of the evidence, may affect his position in that regard. That removes, to a significant extent, at least one of the factors which ordinarily would suggest that contempt proceedings be brought on before the main proceedings, the common law proceedings, and that the latter be stayed until the contempt proceedings are dealt with. The question then is whether I should make any order directing an early hearing of the contempt proceeding. On evidence that is before me at the moment, I do not think that I should. I shall, as in the ordinary course, make an order that those proceedings be referred to the Registrar to fix an appropriate date for hearing and I do not make any order for expedition of the contempt proceedings. I would not see the pendency of the contempt proceedings as being a reason for delaying the hearing of the defamation proceedings, or in any way affecting the course which that proceeding may take. The parties have indicated differing views as to when the main proceeding may be heard. Mr Young has indicated his view that it is unlikely the matter will be listed this year. However, it has been indicated by the respondent in the contempt proceedings, the plaintiff in the main proceedings, that applications may be made for a moreexpeditious hearing. I would not think the pendency of the contempt proceedings should affect the order to be made if the applications are made for urgent hearing of the defamation proceedings. In view, inter alia, of what has been said on behalf of the plaintiff as to the answering of questions and the giving of evidence, I do not think that the existence of the contempt proceedings is a reason why, for example, an urgent hearing of the defamation action should not be given, if it is appropriate to give it. Iam conscious of the significance of the pendency of the contempt proceeding. It is a criminal proceeding. However, in the circumstances of this case, I do not think any special order need be made. In those circumstances, having regard to the orders and undertakings which I have noted, I merely refer the matter to the Registrar to fix a date. I do not order expedition of the contempt proceeding. URJ PERKINS v HARRIS (Mahoney JA) 3 I note that the contempt proceeding may involve an issue of fact. The parties have — and I do not hold them to this as an expression of firm opinion — indicated that the matter can be dealt with within one day. But if it should be likely that a lengthy issue of fact is to be tried, it may be necessary for that issue to be dealt with in some special way. The orders I propose to make, in addition to those already made, are that the matter be referred to the Registrar and that the costs of the proceedings today be reserved to the determination of the contempt proceeding. I have raised the question whether the form of the proceeding — that is, the Notice of Motion — is the appropriate one for the raising of this contempt issue. That is a matter on which I express no opinion because I have heard no argument on it. If it be that a summons is necessary, then I assume the parties will, by agreement, provide for the appropriate form of process and avoid unnecessary costs and delay. Orders accordingly.