Industrial Court of New South Wales CITATION: Crewdson v Director General, NSW Department of Ageing Disability and Home Care - Department of Community Services (No 2) [2006] NSWIRComm 336 APPLICANT: Mr Gerard Crewdson FIRST RESPONDENT: Director General of NSW Department of Community Services PARTIES: Director General of Department of Ageing, Disability and Home Care SECOND RESPONDENT: Healthquest/Central Sydney Area Health Services THIRD RESPONDENT: Ian Knight, NSW Crown Solicitor FILE NUMBER(S): IRC 477 of 2006 CORAM: Schmidt J; Kavanagh J; Staunton J CATCHWORDS: Contempt - notice of motion - jurisdiction - applicant's standing to commence proceedings - time within which proceedings must be commenced - nature of Court's jurisdiction - consideration of ss 180, 153, 164 and 399 of the Industrial Relations Act 1996 and Rule 237 of Court's Rules - functions of Supreme Court in relation to contempt - applicant has no standing to bring proceedings - proceedings set aside Industrial Relations Commission Rules LEGISLATION CITED: Industrial Relations Act 1996 Supreme Court Act 1970 Supreme Court Rules Crewdson v Director General, NSW Department of Ageing Disability and Home Care/Department of Community Services [2006] NSWIRComm 185 Ditford v Calcraft (1989) 98 SLR 158 CASES CITED: R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 European Asian Bank AG v Wentworth and Ors (1986) 5 NSWLR 445 Re McJannet:Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 Uniting Church of Australia Property Trust (NSW) v Industrial Relations Commission (NSW) (2004) 60 NSWLR 602 HEARING DATES: 1/11/06 DATE OF JUDGMENT: 11/16/2006 APPLICANT: Mr G Crewdson (in person) LEGAL REPRESENTATIVES: RESPONDENTS: Mr S Prince of counsel SOLICITORS: IV Knight, Crown Solicitor JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: Schmidt J Kavanagh J Staunton J Thursday, 16 November 2006 Matter No IRC 477 of 2006 GERARD CREWDSON v DIRECTOR GENERAL, NSW DEPARTMENT OF AGEING DISABILITY AND HOME CARE/DEPARTMENT OF COMMUNITY SERVICES Application by Gerard Crewdson re contempt in matter no. IRC 3140 of 2001 JUDGMENT OF THE COURT (No 2) [2006] NSWIRComm 336 1 These proceedings were commenced on 23 January 2006 by Mr Gerard Crewdson, who seeks to prosecute various allegations of contempt. An amended notice of motion was filed on 28 February. In a judgment given on 8 June, we declined to hear a motion filed by certain of the respondents on 10 March 2006, seeking that the proceedings be set aside or struck out. (See Crewdson v Director General, NSW Department of Ageing Disability and Home Care/Department of Community Services [2006] NSWIRComm 185.) 2 Directions were given to the parties as to the further preparation of the matter for hearing. On 17 August, the respondents filed a further notice of motion for a declaration that the Court had no jurisdiction over the respondents in respect of the subject matter of the proceedings. By consent, a timetable for the hearing of that motion was fixed. 3 At the hearing Mr Crewdson opposed the respondents' motion being heard, arguing that it had been filed some 5-6 months beyond the time allowed in the Industrial Relations Commission Rules and that the jurisdictional matters raised should have been dealt with in the motion filed by the respondents in March 2006, in which the Court has already given judgment. 4 The case advanced for the respondents was that Mr Crewdson had purported to commence proceedings for an offence under s 180 of the Industrial Relations Act 1996 ('the Act'). Section 399 of the Act limits the persons who may commence such proceedings. Mr Crewdson was not given that right and accordingly, he could not invoke the Court's jurisdiction to deal with the alleged contempt he sought to pursue in his application. 5 While it was accepted that it would have been preferable for the point to have been raised earlier, the circumstances in which the point had come to the respondents' attention was explained in the evidence given by Ms Rizzo, a solicitor employed by the Crown Solicitor. 6 Further, it was submitted that the alleged offences related to events which had occurred in 2002, 2003 and 2004. These proceedings were commenced in 2006. It was argued that s 398 of the Act does not permit proceedings for an offence to be commenced later than 12 months after the date of the alleged offence. It followed that the motion initiating the proceedings could not invoke the Court's jurisdiction and should be set aside, or dismissed. 7 Mr Crewdson submitted that the respondents' motion was filed some 5 to 6 months after the time fixed by the Rules. Any extension of time was opposed. Mr Crewdson relied upon ss 164 and 180 of the Act, which permit the Court to exercise the functions of the Supreme Court in relation to contempt. He contended that s 399 of the Act did not limit the exercise of such functions, given the provision made in ss(4). Rule 237 of the Court's Rules was also relied upon. 8 As to the argument that his application was brought out of time, in his submissions Mr Crewdson relied upon various endeavours he asserts he made without success in other earlier proceedings before the Court, to raise the matters he seeks to agitate in these proceedings. Consideration 9 We are satisfied that the extension of time which the respondents sought must be granted. Mr Crewdson's 28 February motion seeks the following orders: 1. Prosecution for contempt of court against the Respondents pursuant to IRC r 237(2) 2. In addition or in the alternative to order 1, referral of evidence to NSW ICAC and or the NSW Police Service/DPP 10 The grounds advanced in support of the orders are: (1) Under common law a litigant has a right to commence prosecution for contempt of court in matters relating to proceedings in which they are a party. This right is additional to the right of the Court to commence such proceedings on its own initiative or on the application of a party. IRC r 237(2) expressly preserves this common law right. See European Asian Bank AG v Wentworth (1986) 5 NSWLR 405 (2) The charges involve the Respondents conduct in two sets of proceedings (a) Crewdson v DOCS & Anor IRC 3140 of 2001 before Boland J (b) Crewdson v DADHC IRC 2827 of 2001 before McKenna C (3) The conduct amounting to contempt comprises (a) withholding or destruction of evidence (b) statements misleading court (c) knowingly/recklessly prejudicing and prolonging proceedings through tendering perjured evidence to court 11 In submissions Mr Crewdson explained that the charges he sought to press in this motion needed clarification. It was not perjury per se that he was raising, but the contempt involved in unnecessarily prolonging the proceedings to which the charges related. Mr Crewdson also explained that he had earlier attempted to have the Court initiate contempt proceedings in relation to the various charges he now sought to pursue, but had been unsuccessful in those endeavours. By way of contrast, Mr Crewdson drew attention to steps taken by the Court in relation to allegations of contempt in Rocks v Uniting Church (Aust) (2002) 115 IR 256 and Emibarb Pty Limited t/as The Lagoon Seafood Restaurant v Paul Raymond Matters [2005] NSWIRComm 312. 12 Mr Crewdson explained there had as yet been no determination of any of the serious charges which he seeks to pursue in these proceedings. This was the first occasion on which the merits of those matters were brought before a Full Bench of the Court for consideration and he therefore pressed for his motion to be heard. 13 The issues raised in the respondents' motion go directly to the Court's jurisdiction to hear Mr Crewdson's allegations. They are such that if the respondents are correct, the Court would be unnecessarily embarking upon an expensive, lengthy and complex hearing. We are satisfied that is not an appropriate course. If Mr Crewdson has no standing to bring the proceedings, they are a nullity (see Byers v Overton Investments Pty Ltd [2001] FCA 760). 14 It would plainly have been preferable for the jurisdictional issues now raised by the respondents to have been identified and raised earlier in these proceedings, especially given that they had already unsuccessfully pressed an earlier motion, seeking to have the matter dismissed or stayed. However, given the nature of the issues which have now arisen, we are satisfied that both justice and the interests of the parties requires that the question of the Court's jurisdiction must be determined at this stage of the proceedings. 15 Mr Crewdson pressed his objection to the grant of an extension of time in part by reference to evidence given by Ms Rizzo, who had sworn the affidavit filed by the respondents in support of their motion. Her evidence was that the question of Mr Crewdson's standing to bring the proceedings had only been considered in August of this year. Mr Crewdson cross examined Ms Rizzo and submitted that her evidence was unsatisfactory and should not be accepted. He also argued that a question as to her credit arose, having regard to matters earlier dealt with in our June judgment at [40] to [45]. 16 Even were Mr Crewdson to be correct as to Ms Rizzo's credit on the question of when Mr Crewdson's standing to initiate these proceedings first came to be considered by the Crown Solicitor, the fact remains that the question of his standing is an issue which has now arisen in the proceedings and must be resolved. Mr Crewdson also submitted that the point should have been raised earlier, because if it was correct, he had unnecessarily suffered stress and had wasted his time in pursing the application. It follows that if the jurisdictional points now raised are correct, any further delay in their resolution will only exacerbate that difficulty. 17 At issue is the proper construction of various provisions of the Act and the Rules. While Rule 237 of the Court's Rules contemplates that individuals may bring contempt proceedings, Mr Crewdson's standing to initiate the proceedings and the time within which contempt proceedings must be brought, requires consideration of various provisions of the Act. 18 Contempt is dealt with in s 180, which provides: 180 Contempt of Commission—offence (1) A person in contempt of the Commission is guilty of an offence. Maximum penalty: 500 penalty units in the case of a corporation or, in any other case, 50 penalty units or imprisonment for 6 months, or both. (2) For the purposes of subsection (1), conduct is a contempt only if the same conduct in relation to the Supreme Court would be a contempt of the Supreme Court. (3) Proceedings for an offence against this section may be taken only before the Commission in Court Session. 19 References to the Commission in Court Session are now references to the Industrial Court. (see s 151A) 20 Contempt of either the Industrial Relations Commission or of the Industrial Court, must be dealt with by the Court. Section 153 of the Act deals with how the relevant functions are to be exercised. It relevantly provides: (3) Subject to subsection (4), the functions of the Commission relating to proceedings for contempt of the Commission may be exercised only by a Full Bench of the Commission in Court Session. (4) The functions of the Commission relating to the commencement of proceedings for contempt of the Commission may also be exercised by a judicial member. 21 It follows that the functions of the Court in relation to contempt proceedings must be exercised by a Full Bench of the Court, other than in relation to the commencement of such proceedings, which may also be exercised by a single member. 22 The Act also deals with what functions may be exercised in such proceedings. Section 164 relevantly provides: (2) The Commission in Court Session may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission). (3) Without limiting subsection (2), a judicial member may exercise the functions of the Supreme Court in relation to the commencement of proceedings for contempt of the Commission. 23 The interaction between ss 180 and 164 was considered by the Court of Appeal in Uniting Church of Australia Property Trust (NSW) v Industrial Relations Commission (NSW) (2004) 60 NSWLR 602. At [46] and [47], it was observed by Mason P, with whom Spigelman CJ and Handley J agreed, that: 46 The claimant submits that s164(2), with its reference to "punishment of persons guilty of contempt" (emphasis added), requires guilt to exist in fact or "objectively". It was submitted by Mr Gageler SC for the claimant that the Commission's entitlement to exercise the functions of the Supreme Court in relation to the "punishment of persons guilty of contempt of the Commission" could only be engaged, relevantly, if the person sought to be punished was "objectively guilty of contempt… as defined by s180(2)" (CA Tr p3). 47 On this approach, s164(2) was seen as conferring ancillary powers that, among other things, make s180(3) effective. So much may be accepted. But the critical provision remains s180, which establishes the offence and ostensibly confers on the Commission in Court Session jurisdiction to determine whether guilt is established. 24 At [68] to [70] Mason P went on to observe: 68 The second opponent submits that the relevant jurisdictional fact required to enliven the Commission's jurisdiction to punish for contempt under s164(2) is a finding by the Full Bench of the Commission in Court Session that a person is guilty of contempt. I accept that submission. 69 The critical jurisdictional questions relate to s180 and they have to be asked with reference to the conduct of the Commission in embarking upon and deciding, at least as far as making adverse findings, the issues raised in charges G and H. 70 There is nothing in the manner of expression of s180(1) that takes it outside a commonplace statutory offence. Subsection (2) gives some definition of the offence, without casting any relevant light on the jurisdiction issue. I do not accept the claimant's submission that the words "only if" indicate a legislative intent to make satisfaction of the subsection a jurisdictional fact. Subsection (3) is also a commonplace conferral of jurisdiction in relation to proceedings for the offence. That jurisdiction is conferred upon a superior court of record that is not subject to this Court's appellate jurisdiction. 25 It follows that under the Act, the statutory offence of contempt created by s 180 is 'the critical provision' and that the 'critical jurisdictional questions relate to s 180'. Section 164(2) does not confer a separate jurisdiction upon the Court to deal with contempt, but 'confers ancillary powers, that among other things make s 180 effective.' 26 In Uniting Church of Australia Property Trust (NSW) there was no issue as to how the proceedings had been commenced, nor the time at which they had been brought. The proceedings had been commenced by the Registrar, following upon an order of the Court (see Rocks v Uniting Church (Aust)). Mason P referred to the High Court's decision in Re McJannet:Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620, observing at [48] that the case was of no assistance in resolving the questions there before the Court of Appeal. His Honour noted that: In McJannet , the jurisdictional facts enacted by Parliament were the requirement that the party moving for relief under s253X(1) of the Industrial Relations Act 1988 (Cth) had to be an interested person, and the existence of a "difficulty" of a particular description as the trigger for relief under s253ZC of that Act (see per Toohey, McHugh and Gummow JJ at 658-9). The nature and form of this legislation is quite different to s180. 27 Despite this observation, in these proceedings the respondents argued that s 399 of the Act does impose a jurisdictional requirement as to the party initiating contempt proceedings before this Court. Section 399 provides: 399 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) by the Minister or by a person with the written consent of the Minister, or (b) by an inspector, or (c) by a person, or a person of a class, prescribed by the regulations. (2) In any such proceedings, a consent to institute the proceedings, purporting to have been signed by a person authorised to give a consent under this section is evidence of that consent without proof of the signature or authority of the person. (3) Any such proceedings instituted by an officer of a Government Department may be prosecuted on his or her behalf by any officer of that Department. (4) This section does not limit any function that may be exercised by the Commission under section 164 (2) with respect to any contempt of the Commission. 28 We are satisfied that s 399 deals expressly with the question of who has standing to commence proceedings for an offence against the Act. There are no relevant regulations to consider. Mr Crewdson is plainly not one of the persons specified in ss 399(1). He argues nevertheless, that he has the right to bring contempt proceedings at common law, given his standing as a party to the proceedings to which the contempt related. On his approach, ss 399(4) preserves his right to do so. The scheme of the Act is to confer upon this Court the same powers as that of the Supreme Court in relation to the conduct here in question. Mr Crewdson relied upon the approach of the Court of Appeal in European Asian Bank AG v Wentworth and Ors (1986) 5 NSWLR 445 in support the construction urged. 29 Were this a common law court, Mr Crewdson would undoubtedly have standing to bring contempt proceedings, given that he was a party to the proceedings in which the alleged contempts occurred. (See R v Dunbabin; Ex parte Williams (1935) 53 CLR 434.) Subsection 399(4) makes clear, however, that its purpose is to confirm, by reference to ss 164(2), that the Court has power to 'exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission)'. Subsection 399(4) does not create a wider class of persons who may initiate a prosecution in relation to the offence of contempt, than those earlier specified in ss 399(1). Had that been the intent of the subsection, it would have said so expressly, by making reference, for example, to such proceedings being able to be commenced by parties to the litigation in which the alleged contempt occurred. 30 Subsections 399(4) and 164(2) of the Act are concerned to ensure that the creation of the statutory offence of contempt and the provision made in the Act for the initiation of such offence proceedings by the persons identified in ss 399(1), does not limit the Court's power itself to act in relation to a contempt. The Act also seeks to ensure that, as a superior court of record, the Court is adequately armed with the powers necessary to deal with any contempt which arises before it or the Commission. This was achieved by the various references made to the Supreme Court and the exercise of its functions in relation to contempt. 31 Mr Crewdson relies on the Court of Appeal's judgment in European Asian Bank AG. There the Court of Appeal had to consider the powers of a single judge of the Supreme Court to deal summarily with an alleged contempt. The alleged contempt had occurred in the Court's precincts, when Mr Wentworth struck a Mr Payne, an employee of the Bank which had commenced the proceedings against Mr Wentworth. Mr Payne was present in court when a judgment was given and was also a potential witness in the case. The assault occurred shortly after the judgment had been given. Further threats were also then made against Mr Payne. 32 Shortly afterwards, the Bank caused a notice of motion to be issued alleging contempt. Mr Wentworth challenged the Bank's standing to prosecute the proceedings, as well as the judge's jurisdiction to deal with the motion, the assault having occurred after the judge had left the bench. 33 At p 450 Kirby P, with whom Glass JA agreed, observed that there was no doubt that it was a serious contempt to interfere with a witness, by words or actions, and that such a contempt did not have to occur in the actual presence of a judge. At p 452, his Honour referred to the 'bifurcation' in the Supreme Court's Rules, which left some matters to be dealt with by a single judge and others by the Court of Appeal and the limited circumstances in which contempts could be dealt with by single judges. At p 453, his Honour noted that 'the answer to the respective jurisdictions of the judge of a Division and of this Court must be found in the language of the Supreme Court Act 1970 and the rules made under that Act.' 34 His Honour then went on to deal with the express provisions then made in s 48 of the Supreme Court Act, which drew a distinction between contempt in the face or hearing of the court and other kinds of contempt. At p 456, Kirby J observed that the purpose of the section was to more narrowly confine conduct susceptible to being dealt with summarily before a single judge, than was the case at common law. 35 The standing of the Bank to commence the contempt proceedings was governed by the provision then made in Pt 55, Div 3, Rule 11 of the Supreme Court's Rules, which provided: (1) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court or of any other court, the Court may, by order, direct the registrar to apply by motion for, or to commence proceedings for, punishment of the contempt. (2) Subrule (1) does not affect such right as any person other than the registrar may have to apply by motion for, or to commence proceedings for punishment of contempt. 36 This Rule, his Honour concluded, preserved the common law in relation to the commencement of contempt proceedings by private litigants and that in the circumstances of the case, the Bank had sufficient interest to commence the proceedings. At p 460, his Honour observed: There are adequate protections against abuse of the private initiation of contempt proceedings. They include the sanction of costs, the power of the Attorney-General or the Registrar to commence proceedings and the facility to strike out proceedings which are manifestly vexatious or an abuse of the process of the Court. 37 Mr Crewdson relies on this judgment and this Court's Rules, to argue that he has standing to initiate these proceedings, notwithstanding the provisions of ss 399(1). Rule 237 of the Court's Rules provides: 237 Motion or proceedings by the Registrar (1) Where it is alleged, or appears to the Commission on its own view, that a person is guilty of contempt of the Commission, the Commission may, by order, direct the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt. (2) Subrule (1) does not affect such right as any person other than the Registrar may have to commence proceedings for punishment of contempt. 38 It was Mr Crewdson's argument that this Rule was in the same terms as that considered in European Asian Bank AG and that the construction urged by the respondents rendered the Rule completely superfluous, so as to create a difference between the powers of this Court and that of the Supreme Court in relation to contempt, when the 'statutory language make those powers identical.' 39 Given the differing provisions now made in the Supreme Court Act and the Industrial Relations Act as to contempt, that submission, we are satisfied, cannot be accepted. The Supreme Court Act now deals separately with contempt proceedings in a Divison of the Supreme Court and in the Court of Appeal. Sections 48(2)(i), 53(3) and (4) provide: s48(2) There are assigned to the Court of Appeal proceedings in the Court: (i) for the punishment of contempt of the Court, but only if the contempt consists of: (i) contempt in the face of, or in the hearing of, the Court of Appeal, or (ii) disobedience of a judgment or order of the Court of Appeal, or (iii) breach of an undertaking given to the Court of Appeal, including proceedings in which the Court of Appeal is constituted by an associate Judge, s53(3) Subject to the rules, there are assigned to each Division proceedings for the punishment of contempt of the Court, but only if the contempt consists of: (a) contempt in the face of, or in the hearing of, the Court in that Division, or (b) disobedience of a judgment or order of the Court in that Division, or (c) breach of an undertaking given to the Court in that Division, including proceedings in which the Court is constituted by an associate Judge. (4) Without limiting subsection (1) (d), the proceedings assigned to the Common Law Division include proceedings for contempt of the Court or of any other court (other than proceedings referred to in subsection (3) or section 48 (2) (i)). 40 It follows that the Supreme Court Act now deals with contempt in ways which are different to those considered in European Asian Bank AG, although a person's standing to commence proceedings is still dealt with under the Supreme Court Rules. The Supreme Court Act does not deal with contempt by the creation of a statutory offence, as does s 180 of the Act. Nor does the Supreme Court Act require that all contempt proceedings be dealt with by a Full Bench other than in relation to commencement, as does the Act. 41 The differences in the two statutory schemes explains, no doubt, the Court of Appeal's acceptance in Uniting Church of Australia Property Trust (NSW), that 's 164(2) was seen as conferring ancillary powers that, among other things, make s 180(3) effective'. Section 164 provides that the Court 'may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission)'. Those functions must be exercised, however, in the context of the statutory offence which s 180 of the Act creates. It follows that the way in which contempt is dealt with under the two legislative schemes is not identical. Each Act must be given effect. 42 The Act also does not itself deal with the various ways in which a contempt may be committed, as does the Supreme Court Act. Reference to ss 48 and 53 of the Supreme Court Act, shows, however that such contempt may extend to: (a) contempt in the face of, or in the hearing of, the Court or (b) disobedience of a judgment or order of the, or (c) breach of an undertaking given to the Court 43 So understood, it becomes clear why provision has been expressly made in the Act for the commencement of contempt proceedings to be dealt with by a single judge and why reference has been made to this Court exercising the functions of the Supreme Court in relation to contempt. 44 There are significant similarities between the provisions made in this Court's Rules as to contempt and those now made in the Supreme Court Rules in Part 55. That is understandable, given the references made to the functions of the Supreme Court being exercised by this Court in ss 153 and 164; those who are given standing under s 399 to commence proceedings for an offence under s 180 and the Court's power itself to commence such proceedings. 45 The Supreme Court Rules are however, made under the Supreme Court Act. That legislation does not create an offence such as that created by s 180 of the Act, nor does it deal with the question of standing to initiate such offence proceedings, as s 399 of the Act provides. It follows that the Court of Appeal's conclusion in Uniting Church of Australia Property Trust (NSW) that 'the critical provision remains s 180, which establishes the offence and ostensibly confers on the Commission in Court Session jurisdiction to determine whether guilt is established', may not be overlooked, when the question of who has standing to bring such proceedings is considered. As Kirby P observed in European Asian Bank AG, the answer to this Court's jurisdiction must be found in the Act and this Court's Rules. 46 The approach urged upon the Court by Mr Crewdson does not adequately address the offence created by s 180 of the Act. The provision made in s 399, specifies that the only persons who may institute proceedings for an offence under the Act, are those named in ss (1). We are satisfied that while s 399(1) makes clear the limited class of persons who may institute proceedings for an offence under the Act, it does not limit the Court's power itself to deal with 'the apprehension, detention and punishment of persons guilty of contempt', as s 164 provides. Subsection 399(4) cannot be construed as also having the effect of preserving the common law in relation to the initiation of contempt proceedings in this Court. 47 A difficulty with the construction of the Act urged upon the Court by the respondents, and upon which Mr Crewdson also relied, was that if contempt proceedings had been initiated by the Court in relation to the matters which Mr Crewdson now seeks himself to pursue, procedural problems would have arisen. Mr Crewdson claims that the Crown Solicitor was involved in the alleged contempt he seeks to pursue. Ordinarily, if the Court commences contempt proceedings it would be the Crown Solicitor who would conduct the proceedings. 48 Arguably, such a situation might give rise to practical difficulties. It appears not to have arisen here however, because, as Mr Crewdson complains, in earlier proceedings the Court declined itself to deal with the alleged contempt raised in these proceedings. The Court's refusal is a matter which Mr Crewdson is also apparently pursuing in other proceedings which he has brought in the Supreme Court. 49 Such a situation does not mean that under this statutory scheme the contempt Mr Crewdson seeks to pursue, could not have been dealt with, even if the Court itself declined to initiate contempt proceedings. Section 399(1) permits the Minister, or a person authorised by the Minister, amongst others, to initiate such contempt proceedings. It follows that the scheme of the Act envisages that Mr Crewdson could have approached the Minister, either to commence those contempt proceedings, or to authorise Mr Crewdson to do so, by written consent. 50 This illustrates the role which Rule 237 of the Court's Rules has in this statutory scheme. The reference made in subrule 237(2) to subrule (1) not affecting 'such right as any person other than the Registrar may have to commence proceedings for punishment of contempt', is a reference to those persons who are given standing to bring such proceedings by ss 399(1). The Rule cannot, however, be construed to expand upon the express provision made in the Act, as to who may bring contempt proceedings, so as to give Mr Crewdson a standing which he is not given by s 399. 51 The legislature has seen fit to depart from the approach adopted at common law for the commencement of contempt proceedings by private litigants. The legislature requires that contempt proceedings be dealt with by a Full Bench of this Court, other than as to their commencement. It has specified the penalties which the Court might impose, if the statutory offence is found proven. These, too, are departures from the common law. 52 In European Asian Bank AG, Kirby P discussed the view taken as to institution of contempt proceedings by Moffitt P, in Killen v Lane [1983] 1 NSWLR 171 at 177, with whom Hutley and Samuels JJ agreed, observing at 458-459: His Honour suggested that the whole function of the person alleging a contempt is to secure the initiation of proceedings by the Crown or other duly constituted authority or the initiation of proceedings by the Court itself. As his Honour pointed out (at 177) the jurisdiction which is invoked does not seek the enforcement of private rights. Some of the statements made in the present proceedings on behalf of the Bank suggested a misunderstanding of its function in contempt proceedings. They are not private proceedings for the vindication of the rights of the Bank or its employee and witness Mr Payne. They are proceedings, criminal in their nature, to vindicate the public interest in the due administration of justice. The only question is whether the Bank may initiate such proceedings itself or cause them to be initiated in the manner it has. .... There is no doubt that some of the language in the judgment of Moffitt P in Killen v Lane would suggest that the only function of a litigant such as the Bank is to inform a judge who will then decide whether to do nothing (ibid at 177) or to refer the matter to the Attorney-General or otherwise to cause proceedings to be commenced. Such an interpretation of the rules has the advantage of interposing between the litigant or other complainant, whose tempers might be frayed by the inevitable tensions of litigation, the beneficial consideration on the part of the judge of whether the complaint should be pursued. Furthermore, it provides for the potential exercise of the protective prosecutorial discretion of the Attorney-General or other public official. 53 His Honour's observations suggested a basis upon which the legislature might act to limit the persons who have the right to commence contempt proceedings. That was, undoubtedly, a matter for the Parliament to determine in enacting this statutory scheme. We are satisfied that such rights have not been given to private litigants such as Mr Crewdson by s 399, other than when the Minister's written consent is obtained. It appears that Mr Crewdson has not sought or obtained such consent. 54 Mr Crewdson also relied upon the Full Court's observations in Crewdson v Director Generals NSW Department of Ageing Disability and Home Care/Department of Community Services (No 12) at [14]: 14 The apparent attempt to bring contempt proceedings in these appeal proceedings should not be permitted. Although this Court, its associated tribunal the Industrial Relations Commission, and our predecessors, have always attempted to avoid an over-strict procedural approach, contempt proceedings, by their very nature, should observe basic procedural requirements and formalities. Similarly, courts should be astute to ensure that such proceedings are not brought in such a way as to embarrass the conduct of other proceedings and that such proceedings should be conducted in a proper and orderly way. We are therefore not prepared to permit this appeal to become proceedings of a different kind. Any contempt proceedings the appellant might wish to commence must be initiated either in the initial proceedings or in separate proceedings which, if brought, will be allocated in the usual way. 55 We are satisfied that these observations were not made in the context of any consideration as to whether Mr Crewdson had standing under the Act to bring the proceedings which he later initiated in January 2006. 56 We do not discount the serious nature of the allegations which Mr Crewdson seeks to pursue in these proceedings. Amongst other things he seeks to establish contempt of the kind dealt with by the Court of Appeal in Ditford v Calcraft (1989) 98 SLR 158. Nevertheless, for the reasons which we have given, we are satisfied that the orders sought by the respondents must be made, given that we have found that the Court has no jurisdiction to entertain the motion which has been brought. 57 It is therefore unnecessary for us to consider the further question of whether or not these proceedings were commenced within time. Orders 58 For the reasons given, we order that the proceedings be set aside. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.