HER MAJESTY'S ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v MOOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and POWELL JJA 28 February 1994, 28 February 1994 [1994] NSWCA 131 CONTEMPT UNDER UNAUTHORISED DOCUMENTS ACT 1922 — DOCUMENTS IN THE FORM OF COURT SUMMONSES SENT TO PERSONS FOR SALES PROMOTION — PLEA OF GUILTY CONTEMPT under Unauthorised Documents Act 1922 — Documents in the form of Court Summonses — Sent to persons to induce them to call a telephone number so that they would hear a sales promotion — Opponents believed no offence was involved — Trouble, cost and inconvenience to recipients and to court and police officers. Plea of guilty of contempt — Declarations that contempt committed — No Convictions entered — Opponents ordered to pay the Attorney General's costs on a party and party basis. Mahoney JA On 23 November 1992 or thereabouts the respondents, Simon Anthony Moor and Jeremy David Hutton, caused documents to be sent to a large number of people. It is conceded these documents constituted a contempt of court within the meaning of the Unauthorised Documents Act 1922. The opponents were then brought to this Court by the Attorney General to deal with that contempt, or those contempts. They have, through their counsel, Mr Russell, pleaded guilty to the offences. In view of the circumstances as disclosed by the numerous affidavits filed on behalf of the Attorney General, one would think they had little alternative but to plead guilty. However, they have and they are now before the court essentially, in a practical sense, for the determination by the court of the penalty to be imposed. It is necessary to refer briefly to the facts. The documents which were sent out were, it is said, modelled on a form of document in use in courts in South Australia. It contained at its head the Coat of Arms of the State of New South Wales or something equivalent thereto. It then was headed "Magistrates Court - Complaint and Summons" with endorsement and form of pleading guilty in writing. It contained a reference to an Act of Parliament, presumably that in South Australia. It then alleged that the person in question had on a stated day been the registered owner of a vehicle which had been detected by a photograph device driving at a greater speed than sixty kilometres per hour. I am summarising a portion of the document. The document then in its second part proceeded to say to the person named in it that that person was "required to be at the Sydney Magistrates Court, Downing Centre, 143 Liverpool Street, Sydney, New South Wales 2000, on the date there specified to answer the complaint." 2 UNREPORTED JUDGMENTS Over the words "Magistrates Court - Registrar/Justice of the Peace" appeared something equivalent to a signature. The document then contained other matters taken from the South Australian document and were designed to give an appearance of authenticity to the document as a court document. There was in the centre of the document - and it was contained in somewhat blacker type - the following words: "On receiving this order you must immediately confirm your court appearance with the Magistrates office on 5523063. Failure to do so will result in a form of penalty." It is that on which reliance has been placed as indicating to a person carefully reading the document that this was not a court document, but something else. Those who received the documents, or a significant number of them, saw the document as being some form of official court document and acted accordingly. It is said - and this was stated in evidence by one of the opponents - that it was intended to trick those who received it into calling the particular phone number; when they did this they would then be the recipient of a form of promotion of the goods which the opponents sought to promote. The word "trick" was a word which was put to the parties from the Bench in the course of cross-examination and accepted. It was not intended by that to convey or, I am sure, to admit, that there was something criminal in what was said. "Trick" was the word which I think was appropriate in the circumstances. The result of what occurred was to cause considerable inconvenience to those who received the documents and also to court officers and police officers of various kinds. Each of the opponents has said - and it has not been suggested otherwise - that he did not know that what he was doing was an offence. The matter is to be dealt with on that basis. Neither of the opponents has any record of convictions of any kind, or of any kind here relevant. A number of documents which have been filed on behalf of the opponents constituted references; they have been so described in these or similar documents. Some of the documents come from those who received the documents in question, the documents complained of, indicating a degree of understanding - if I may put the matter in that way - of what occurred and the desire not to press their complaints too heavily against the opponents. As IT have said, what has been done constitutes and is accepted to constitute an offence under the Unauthorised Documents Act 1982. The court is entitled to know that acts such as this, taking various forms, occur from time to time. This is not the first time by any means that something of this kind has been done. Sometimes documents take the form of a bogus summons, a bogus demand and court process for moneys or other similar forms. In the present case it is proper to record that the opponents did not attempt to do anything of that kind. Their purpose was, as I have said, essentially to trick those who received the documents into ringing a telephone number which otherwise they would not have rung and when they did so they received some form of promotion of the goods in question. To that extent, and it was to that extent only, they were intended to be inconvenienced. However, of course, by reason of the nature of the documents, as some of the affidavits disclose, some of the recipients of them went further. Some consulted solicitors; some communicated with the courts, some even signed documents indicating that they were guilty of some offence. I take these matters from what has been said without objection by Mr Johnson for the Crown. However that be, the circumstances were such that people were inconvenienced and put to trouble to which they should not have been put. If this kind of thing WHER MAJESTY'S ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v MOOR (Mahoney JA) is to be allowed or is to be passed over without being dealt with, then members of the community and court officers can be again incommoded in such a way. The reason for provisions of this kind is, in my own opinion, obvious. Summonses and other documents of this kind purport to deal with court procedures and are serious documents. They are intended to be such. They are issued to protect the rights of other citizens who ask the courts to protect them or assist them in living in accordance with the law. If false documents are allowed to be used in this way, those who should be protected against them will obviously lose that protection and those who, by deceptive documents, attempt to obtain money or other advantages, may put such persons at risk. The cost and difficulty of stopping actions of this kind is to be recognised. The court must bear in mind that the Crown is required by the legislation, in the exercise of a proper discretion, to ensure that the substantial provisions of the Act are enforced. What is to be done in the present case? It has been suggested that, if the opponents are found guilty of contempt or otherwise under this Act, a formal conviction will be entered against them. Without so deciding, I shall assume that to be so. I do not think that this is an appropriate matter for the entry of a formal conviction. The entry of a conviction, even in times such as the present, may have a significant effect upon the future activities of the persons concerned. I accept that the persons concerned have no criminal record and that it is inappropriate that a formal conviction be recorded. It is, as the Crown indicated, proper to declare that contempts have been committed. The court should, in my opinion, make declarations in accordance with para2 and para3 of the orders which have been filed. However, I do not think that the court should proceed to enter a conviction. I do not think that it is in contest but that the court may declare that there has been a contempt, but formally not enter a conviction. I propose that the court take such a course in the present matters. The question then arises as to how the offences which have been committed should be marked so that the opponents may know the seriousness of them and so that other people may recognise what has happened. The Crown pointed out that there are, in effect, twenty-one separate occasions for the imposition of a penalty. The penalty provided in a Magistrates Court by s4(2)(b) amounts, it is said, to $1,000 per offence. It is said that there were twenty-one offences in the present case. If charged separately in a Magistrates Court upon that basis, the total penalty which could have been imposed as a maximum would have been some $21,000. It is plain that the present case is not one which, following on a conviction, would warrant penalties of that kind. In my opinion, it is appropriate that the matter be dealt with by declarations of the kind to which I have referred, by proceeding to a formal conviction in this case, but by ordering that the opponents pay the costs of the Crown of the present proceedings. In assessing an order in relation to costs, I have in mind what has been said by Mr Russell for the opponents and by Mr Johnson for the Crown. For reasons over which the court has no control, legal costs these days are substantial. Reference has been made to the fact that the costs of the opponents themselves will be of the order of $8,000 more or less. I do not intend by stating the matter in that way to bind parties to particular amounts, but this has been put to the court to be the order of their own costs. 4 UNREPORTED JUDGMENTS The Crown brought the present proceedings. It is proper that they should have brought them in one form or another. However the proceedings had been brought, the costs would have been significant. It may be that the Crown costs in the present case will be of the order of those to be charged to the opponents by their own solicitors and counsel. Notwithstanding the size of the costs, I do not think that it is inappropriate that they be ordered to pay the costs of the Attorney General of these proceedings. I think that it would be inappropriate to make an order for costs which would have the effect that the costs of bringing these proceedings were, in fact, borne by the public. In my opinion, therefore, the court should order that the declarations be made as in para2 and para3 of the summons; that convictions be not entered; that the opponents pay the costs of the Attorney General of the present proceedings; and that would be costs on a party and party basis. Meagher JA I agree. Powell JA I also agree. Mahoney JA: The orders of the court are therefore as I have announced. 1. Declarations made as in para2 and para3 of the summons. 2. Convictions be not entered. 3. Opponents to pay the costs of the Attorney General on a party and party basis. Counsel for the Claimant: P A Johnson Solicitors for the Claimant: H K Roberts Counsel for the Opponents: S C Russell Solicitors for the Opponents: Warren Cross & Co