Reported Decision : 62 NSWLR 309 New South Wales Court of Appeal CITATION: Johnston v Nationwide News Pty Ltd & 1 Or [2005] NSWCA 17 HEARING DATE(S): 11/02/05 JUDGMENT DATE: 11 February 2005 JUDGMENT OF: Spigelman CJ at 28; Beazley JA at 39; Ipp JA at 2 DECISION: Application for leave to appeal dismissed. CATCHWORDS: PRACTICE AND PROCEDURE - Contempt - Referring question of contempt under s 203 District Court Act 1973 (NSW) to the Supreme Court - Not a "judgment or order in an action" as required by s 127(1) of the Act to be referable - Appeal not competent - COSTS - Leave to appeal - Judicial reluctance to grant leave to appeal in respect of costs orders alone. D District Court Act 1973 (NSW), ss 127(1), 128(2A), 148B(1)(a), 203 LEGISLATION CITED: Supreme Court Rules, Pt 55 r 11 Courts Legislation Further Amendment Act 1995 (NSW) Capaan v Joss Managing Director Westpac [No 2] (unreported, NSWCA, 6 June 1994) Fraser Credits Pty Limited v Osterberg-Olsen [1978] 1 NSWLR 121 CASES CITED: Killen v Lane [1983] 1 NSWLR 171 Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 Registrar of the Court of Appeal v Maniam [No 1] (1991) 25 NSWLR 459 Shannon Johnston (Claimant) PARTIES: Nationwide News Pty Ltd (First Opponent) The State of New South Wales (Second Opponent) FILE NUMBER(S): CA 40519/04 C Evatt/R Pincus (Claimant) COUNSEL: A Leopold (First Opponent) M G Sexton SC, SG/A Mitchelmore (Second Opponent) Friend & Co (Claimant) SOLICITORS: Blake Dawson Waldron (First Opponent) I V Knight, Crown Solicitor (Second Opponent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 6063/03 LOWER COURT JUDICIAL OFFICER: Sorby DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40519/04 DC 6063/03 SPIGELMAN CJ BEAZLEY JA IPP JA Friday 11 February 2005 SHANNON JOHNSTON v NATIONWIDE NEWS PTY LTD & 1 OR Judgment 1 SPIGELMAN CJ: I invite Ipp JA to deliver the first judgment. 2 IPP JA: On 22 December 2003 the claimant filed a statement of claim in the District Court alleging that he had been assaulted by an officer of the New South Wales Police Force. According to the claimant, the officer had wrongfully fired a gun at him and had thereby injured him. He claimed damages for assault from the second opponent. 3 On 21 February 2004 the first opponent, through its newspaper, the Daily Telegraph, published an editorial and an article concerning the proceedings so instituted by the claimant. 4 The applicant applied to the District Court in terms of s 203 of the District Court Act 1973 (NSW) alleging that the first opponent, in publishing the editorial and the article in question, was guilty of contempt of court. He requested the District Court to act under s 203 by referring the question whether the first opponent had committed contempt of court to the Supreme Court for determination. Sorby DCJ declined the request. The applicant now seeks leave to appeal against his Honour's decision. 5 The second opponent challenged the competence of the appeal. The argument in this respect involved the question whether a reference by the District Court under s 203 of the District Court Act is a judgment or order under s 127(1) of that Act. 6 The appeal itself was listed for hearing at the same time as the application for leave but the Court heard the argument as to the competence of the appeal first. These reasons concern that issue. There was a further argument as to whether leave should be granted to appeal against Sorby DCJ's order that the claimant pay the costs of application before him, and that is a matter that I will deal with as well. 7 Section 127(1) of the District Court Act provides: "A party who is dissatisfied with a Judge's judgment or order in an action may appeal to the Supreme Court." 8 Section 127(1) was amended by the Courts Legislation Further Amendment Act 1995 (NSW). Prior to the amendment, the relevant section governing appeals from the District Court to the Supreme Court was s 128(2A) of the District Court Act. That section provided: "An appeal shall, subject to sections 129 and 130, lie to the Supreme Court from any ruling, order, direction or decision of the Judge in an action (not being proceedings ancillary to an action) …" 9 The change that occurred in 1995 indicates that the legislature intended to exclude rulings, directions or decisions from being susceptible to appeal without leave to the Supreme Court. 10 Section 203 provides: "(1) Without prejudice to the powers of the District Court under section 199, where it is alleged, or appears to the District Court on its own view, that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, the District Court may refer the matter to the Supreme Court for determination. (2) On any matter being referred to the Supreme Court under subsection (1), the Supreme Court shall dispose of the matter in such manner as it considers appropriate." 11 According to the ordinary meaning of the language used, the referring of a matter to the Supreme Court in terms of the section does not amount to a judgment or order but is, rather, a ruling or direction. 12 Furthermore, due weight must be given to the phrase "in an action" in s 127(1). "[A]ction" is defined in s 4 of the Act as meaning an "action in the Court". In Fraser Credits Pty Limited v Osterberg-Olsen [1978] 1 NSWLR 121 this Court considered the phrase "in an action" in the then equivalent of s 128(2A) of the District Court Act (the predecessor of s 127(1)) and determined that it had to be construed narrowly. The Court held that a decision by a District Court judge refusing to set aside a judgment of the Court was not a decision in an action but a decision ancillary to an action. That approach reinforces my view that a reference under s 203 of the District Court Act to the Supreme Court is not a judgment or order made in an action. 13 Mr Leopold, who appeared for the first opponent, and who supported the claimant in his contention that the appeal was competent, submitted that the word "matter" in s 203(1) was significant. He argued that the use of that word indicated that the legislature had in mind that the reference would be a contested judicial issue between litigants. He relied on what was said by Mahoney JA in Registrar of the Court of Appeal v Maniam [No 1] (1991) 25 NSWLR 459 at 470-471, namely: "After hearing the doctor's evidence, the judge formally charged him with contempt. It is not clear whether this is necessary. It is arguable that a formal charge is not warranted or authorised. But that which s 203 authorises to be referred to the Supreme Court is 'the matter'. The term 'matter' in this sense ordinarily indicates a proceeding between parties…" 14 It is to be noted, however, that Hope AJA, with whose reasons Kirby P generally agreed, said at 480: "In my opinion the evidence was rightly admitted. As it seems to me, Sinclair DCJ was considering whether he would exercise the power conferred by s 203 to remit the matter, being the question whether Dr Maniam was guilty of contempt for not complying with the subpoena, to the Supreme Court for determination." 15 In my opinion, properly construed in the context of this particular legislation, the word "matter" means nothing more than the question whether the party appeared to be guilty of contempt of court. 16 Mr Leopold also pointed out that the claimant had moved for orders before the District Court judge. The orders were sought pursuant to a notice of motion before his Honour and the procedures taken by all the parties before his Honour were consistent with the form of ordinary judicial proceedings. In my opinion, however, the way in which the parties conducted the hearing cannot influence the proper construction to be placed on the legislation. In any event, the way the issue came before the District Court was merely a matter for the Court to determine as a question of administrative convenience. 17 A significant factor is that, in the event of the District Court making a reference to the Supreme Court pursuant to s 203(1), the contempt proceedings are to be taken by the Supreme Court itself and not by a separate party. Moffitt P in Killen v Lane [1983] 1 NSWLR 171 explained at 177: "The initiation by the Crown or other constituted authority of criminal proceedings generally, or the initiation of proceedings by the court or Attorney-General to punish for criminal contempt, involves different considerations to proceedings by a person for the exercise by the court of a power to make an order which will enforce private rights. A person may allege to the Crown or authority having the power to commence criminal proceedings that a criminal offence has been committed or may allege facts which constitute such an offence, but has no right to compel the Crown or such authority or, in the case of criminal contempt, the court or the Attorney-General to commence proceedings or to seek a court order having this consequence. The right of the court to act on the allegation of some person is and formerly was as now provided in r 2 and r 11(1), so that the province of any person is to do no more than inform or allege, so as to leave the commencement of proceedings entirely a matter for the court as a ministerial decision taken of its own motion. The provision in these rules is consistent with the practice which preceded the rules." 18 Moffitt P went on to say at 179 that the power to commence proceedings under Pt 55 r 11 (1) of the Supreme Court Rules is "ministerial in nature". It is not necessary in these proceedings to determine whether or not a reference under s 203 of the District Court Act is a judicial or a ministerial act. The issue before this Court is merely whether a reference is a judgment or order under s 127. Nevertheless, the general approach taken by the Court in Killen v Lane is inconsistent with the submissions advanced by Mr Leopold. 19 More particularly, Killen v Lane demonstrates that should the District Court – in response to a request by a person who makes an application to it in terms of s 203 - refer a question of contempt to the Supreme Court, that person will not be involved in the bringing of contempt proceedings in the Supreme Court. As I have pointed out, such proceedings are to be brought by the Supreme Court itself. That is a further indication that the act of the District Court in referring (or declining to refer) a question of contempt to the Supreme Court is not an act performed "in an action" in the District Court. 20 I would add that in Capaan v Joss Managing Director Westpac [No 2] (unreported, NSWCA, 6 June 1994) this Court accepted the correctness of Killen v Lane. That case has now stood as authority for more than twenty years and, in my view, there is no reason to doubt it. 21 Mr Leopold sought to distinguish what was said in Killen v Lane from this case because of the difference in wording between s 203 of the District Court Act and Pt 55 r 11. In my view, however, the fundamental basis of Killen v Lane, namely, that the proceedings in the Supreme Court for contempt are proceedings taken by the Court itself, remains significant and informs the question whether a reference under s 203 is a judgment or order within the meaning of s 127. 22 In my opinion, for the reasons I have given, a reference under s 203 is not a judgment or order and an appeal against the refusal to make such a reference is incompetent. The application for leave to appeal against the refusal to refer the matter to the Supreme Court should be dismissed. 23 I turn now to the application for leave to appeal against the order for costs made by Sorby DCJ against the claimant. In my opinion, for the following reasons, the application for leave to appeal against this order should also be dismissed. 24 Firstly, there is a general reluctance on the part of the Court to grant leave to appeal in respect of costs orders alone. Secondly, no submission was made to Sorby DCJ that the Court had no power to make an order as to costs. Thirdly, while Mr Leopold submitted that the Court had power to make a costs order under s 148B(1)(a) of the District Court Act, Mr Evatt, for the claimant, did not contend to the contrary. Fourthly, Mr Evatt said that he had no separate submission as to costs in addition to those based on his argument that the judge had made errors in determining whether or not he should make a reference to the Supreme Court. 25 Accordingly, while I consider that there is a real question as to whether the District Court has power to make a costs order when an application is made under s 203, I do not think this is an appropriate vehicle for the consideration of that question. 26 The issue of the competence of the appeal was raised very late in the day. In my opinion, for that reason, no order as to costs should be made in relation to the appeal. 27 Accordingly, the order that I propose is merely that the application for leave to appeal be dismissed. 28 SPIGELMAN CJ: I agree. I add some observations. 29 The issue of whether or not a decision or ruling by a Court is a judgment or order, for purposes of appeal provisions, has arisen in many different contexts. The general thrust of the case law on the matter is that there must be an operative judicial act. For the reasons given by Ipp JA, I agree that there is no such operative act in this case. 30 Perhaps the most convenient statement of the relevant distinction is found by King CJ in Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, at 127 where the Chief Justice said: "A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing." 31 None of the examples used by his Honour nor, on my research, in any of the other cases in which the issue of whether a decision or a ruling is incidental or not has been decided, are quite of the character which is before the Court on this occasion. Nevertheless, I am satisfied that this is not a judgment or order, particularly because of the weight that has to be given, as Ipp JA has observed, to the phrase "in an action" found in s 127 of the Act. 32 Two possibilities of what the relevant "action" was in the present case have been raised. First, the proceedings instituted by the claimant for damages for personal injury. Secondly, and this was an aspect stressed in Mr Leopold's submissions, the notice of motion taken out in a formal manner in the District Court, albeit a notice of motion which purported to add an opponent (namely Mr Leopold's client) that was not a party to the overall proceedings. In my opinion, neither is a relevant "action" for the purposes of s 127. The contempt issue did not arise "in" the main proceedings. The formality of the notice of motion was no more than a convenience. 33 The issue that arises under s 203 of the District Court Act 1973 is an issue which is more wide ranging than the impact on the particular proceedings, with reference to which the allegedly contemptuous conduct occurred. 34 First, as has arisen in this case, the adverse impact of the contempt may operate on other proceedings, relevantly future civil proceedings in which a person with a criminal record is a plaintiff. Secondly, it is not only a party that can raise these matters. 35 As was said in Killen v Lane [1983] 1 NSWLR 171, at 177F, per Moffitt P: "The person who alleges some conduct tending to interfere with the administration of justice in a trial may be a juror, a witness, a party, a court or police officer or some other person. His role is to inform the judge. Thereafter, it is a matter for the judge, acting on his own motion, to decide what he will do." 36 Allowing for the gender specific terminology, not uncommon in the early 1980s, that proposition is still accurate today. As Moffitt P said, the Court is "informed" of a certain matter – the terminology in the first part of s 203 refers to an allegation. That is not the kind of step that would fall within the terminology of "in an action" for the purposes of s 127. 37 Indeed, the thrust of the judgment in Killen v Lane was that no proceedings of a formal character pursuant to Pt 55 r 11 of the Supreme Court Rules is contemplated. Moffitt P said at page 176: "The rules (Pt 55) do not in terms confer a right upon a person to so apply or for the court to entertain such an application. This is so whether the court commences the proceedings under Div 2 by arrest and oral charge or under Div 3 by the court causing written originating process to be issued by its officer on its behalf. Neither of the relevant rules being r 2 and r 11(1) which are in Pt 55 (which relates to summary proceedings for 'the punishment of contempt' and hence criminal contempt), makes provision that a person may apply for an order for the commencement of proceedings in this manner. These two rules do not so provide by empowering the court to institute such proceedings upon the allegation of some person as an alternative to its own view that a contempt has been committed. Therefore for such a right to be found it would need to be shown to be conferred by the rules by implication or to exist otherwise." The Court went on to find that there was no such implication or other provision. 38 I agree with Ipp JA that the reasoning in Killen v Lane is directly analogous to the issue that has arisen before this Court. For his Honour's reasons, and for these additional reasons, the jurisdiction of the Court under s 127(1) has not been attracted. 39 BEAZLEY JA: I agree with the comments of Ipp JA and the comments of Spigelman CJ. 40 SPIGELMAN CJ: The orders of the court will be as pronounced by Ipp JA. ********** 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.