Supreme Court New South Wales Medium Neutral Citation: Hoxton Park Resident's Action Group Inc. v Liverpool City Council [2014] NSWSC 704 Hearing dates: 23 May 2014 Decision date: 30 May 2014 Jurisdiction: Equity Division Before: Young AJA Decision: Plaintiffs' charge of contempt against the second, third, fourth and fifth defendants dismissed. Catchwords: CONTEMPT OF COURT - whether the Court has jurisdiction to make coercive orders against the States or Commonwealth of Australia for wilful failure to comply with orders for discovery - whether the States or Commonwealth can be charged with wilful contempt - whether enforcement orders in the nature of sequestration or fines can be made against the States or Commonwealth - whether charge of contempt should be made against parties for failure to comply with orders where there is genuine debate as to whether orders have been complied with. Legislation Cited: Judiciary Act 1903 (Cth) s 64 Cases Cited: Arnold v Minister Administering Water Management Act (2009) 165 LGERA 32 Cawood v Green (26 June 1974 unreported) Commonwealth v Miller [1910] HCA 46; 10 CLR 742 Crowther v Queensland [2007] 1Qd 232 Griffin v South Australia [1924] HCA 40; 35 CLR 200 M v Home Office [1994] 1 AC 377 Category: Principal judgment Parties: Hoxton Park Residents Action Group Inc (first plaintiff) Marella Harris (second plaintiff) Liverpool City Council (first defendant) Malek Fahd Islamic School Limited (second defendant) Australian Federation of Islamic Councils Inc (third defendant) State of New South Wales (fourth defendant) Commonwealth of Australia (fifth defendant) Representation: Counsel: Mr P King (first and second plaintiff) No appearance (first defendant) Ms E Glover (second and third defendant) Mr H El Hage (fourth defendant) Mr S Free (fifth defendant) Solicitors: Robert Balzola and Associates (first and second plaintiff) No appearance (first defendant) Goldrick Farrell Mullan (second and third defendant) Crown Solicitor (fourth defendant) Australian Government Solicitor (fifth defendant) File Number(s): 2009/00289796 Publication restriction: None Judgment 1On 23 May 2014 I tried the issues on a further amended notice of motion, which had been filed on the 23rd of May 2014. Broadly speaking that notice of motion sought three classes of order vis (a) an order that the whole proceedings be adjourned or stayed, (b) that orders be made punishing the various offenders for contempt of court in allegedly failing to obey orders for discovery and (c) leave to further discuss aspects of discovery. 2Time was tight on the 23rd of May. I disposed of (a) and (c) with short extempore judgments. I indicated that I would dismiss claim (b) with costs and give my reasons in due course. These are the reasons. 3The statement of charge in the notice of motion puts that the various defendants wilfully failed to comply with the orders of Justice Hallen of May 25 March 2014, and my orders of 31 March 2014 with respect to discovery. 4The notice of motion does not indicate what relief is sought eg. whether the defendants should be fined or sequestrated or what otherwise. 5The second and third defendants are corporations. The fourth defendant is the State of New South Wales and the fifth defendant is the Commonwealth of Australia. 6Seeing that orders were made for discovery in March 2014 and that I ordered that there should be no further agitation about orders for discovery without leave, it did not seem to me at all appropriate that the matter should be both dealt with by way of contempt of court proceedings and also by way of application for leave to discuss further the question of discovery. 7However a particular problem arises with the fourth and fifth defendants. Can there be any coercive orders made if either the Commonwealth or a State does not comply with an order for discovery particularly if it is shown that that was wilful? 8Mr Peter King of counsel for the plaintiff submitted that one could and cited the decisions of the High Court of Australia in Commonwealth v Miller [1910] HCA 46; 10 CLR 742 and Griffin v South Australia [1924] HCA 40; 35 CLR 200. However all those decisions say is that because of the Judiciary Act 1903 (Cth) s 64 the Commonwealth has made itself amenable to have orders for discovery made against it. No reference is made as to how any such order might be enforced. 9Indeed it is now unarguable that orders for discovery can be made against either or both the Commonwealth and the States. That does not address the question as to whether there can be enforcement proceedings against either the Commonwealth or the States if there is non-compliance or even wilful non-compliance with the order. 10In England special provision has been made in the rules of court prohibiting enforcement action and this is referred to in Lord Woolf's decision in M v Home Office [1994] 1 AC 377 at page 427. 11There is Australian authority. In Crowther v Queensland [2007] 1Qd 232 the Queensland Court of Appeal held that both the Commonwealth and the State were immune from enforcement proceedings for alleged disobedience of an order of the court. 12This was followed by Biscoe J in the New South Wales Land and Environment Court in Arnold v Minister Administering Water Management Act (2009) 165 LGERA 329. It is surprising that Mr King did not cite this authority to me as he was counsel in the case: doubtless it slipped his mind. In a learned judgment Biscoe J considered the authorities in some depth and held that the Commonwealth was immune from criminal contempt. 13The modern day distinction between procedural contempt and criminal contempt is a little blurred however in the instant case the allegation is that there has been a wilful contempt of court by the Commonwealth which is probably as close to criminal contempt as one gets even if it is not over the line. 14To my mind there is no ability in this court to police by orders for discovery by sequestration, or fine, any alleged disobedience of such order for discovery by the Commonwealth or a State. 15It has been argued in the cases that this means that the order for discovery or the like is really of no moment as there was never any enforcement possible by further order of the court. However as pointed out in Crowther's case, courts expect, and that expectation is usually fulfilled, that government authorities will comply with the orders of the court. 16If there was to be enforcement, the order would be for sequestration. It is almost impossible to contemplate how the court could appoint five sequestrators to either the property of the Commonwealth or the property of a State to hold all of the public property until the contempt was remedied. The non-payment of salaries to any Commonwealth or State public servant would in itself demonstrate how ridiculous this concept would be. 17In any event in 1974 the Court of Appeal held in Cawood v Green (26 June 1974 unreported) that it was not good practice to police orders for injunction or the like by contempt proceedings where there was a genuine debate as to whether the order had been complied with or not. The Court of Appeal said, in an injunction case, that the proper approach was to go back to the court and seek a declaration as to the true meaning of the order and whether there had been compliance. 18Even if I had been of the view that I had some jurisdiction to issue coercive orders against the Commonwealth or State defendant this would not be a case where one would do so as the matter is quite contested and can be dealt with quite satisfactorily on hearing the argument on the third aspect of this notice of motion. 19The same technical problems do not affect the second and third defendants. However, contempt proceedings are for the reasons just given, inappropriate. 20For these reasons I dismissed this part of the motion with costs. I confirm that order. ********** 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. Decision last updated: 30 May 2014