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Hidden J

Monday 16 March 1998



HIS HONOUR: The defendant, John Wilson, is alleged to have thrown paint at Murray AJ after his Honour delivered a judgment adverse to him on 5 September 1997. As a result, the Chief Judge at Common Law, pursuant to Pt 55 r 11(1) of the Supreme Court Rules, directed the Prothonotary to commence proceedings against the defendant for contempt. On 14 October 1997 the Prothonotary, as plaintiff, issued a summons against the defendant seeking a declaration that he was in contempt and an order that he be dealt with accordingly.

On 5 September 1997, the day of the incident, the defendant was also charged by police with an offence under s 326(1) of the Crimes Act of threatening injury or detriment to a judicial officer. The Director of Public Prosecutions assumed the conduct of those proceedings on 21 October, and they have been adjourned at the Downing Centre Local Court to abide the outcome of the proceedings in this court.

The contempt proceedings are to be dealt with summarily and are now for hearing on Thursday next, 19 March 1998. On 13 February 1998 I heard an application by the defendant that the alleged contempt be the subject of trial by jury. I should record that on 24 November 1997 the defendant issued a summons in the Court of Appeal seeking the same order, and the matter was listed for hearing in that court on 15 December. On 3 December the defendant sought from Dunford J a stay of proceedings upon the Prothonotary's summons pending the hearing in the Court of appeal, but his Honour refused to grant a stay on the basis that any submission that he was entitled to trial by jury for contempt was without substance: The Registrar of Court of Appeal v Willesee & Ors (1984) 2 NSWLR 378. In the event, on 15 December the summons in the Court of Appeal was withdrawn.

The application before me must also be dismissed for the same reason that Dunford J refused to grant a stay. Willesee is clear authority for the proposition that trial by jury for contempt is obsolete and that summary trial is now the normal procedure. Before me, the defendant was represented by counsel who tried valiantly, but unsuccessfully, to find some way around that decision. He referred to Cap. 29 of Magna Carta, affirming the right to trial by one's peers, and its incorporation into the law of New South Wales by s 6 of the Imperial Acts Application Act 1969. However, by that section, various imperial enactments have the force of law in New South Wales "except so far as affected by ... State Acts from time to time in force in New South Wales": s (b). In Galea v New South Wales Egg Corporation (C of A, unreported, 21 November 1989) Kirby P (at p 11) observed that this "would appear to envisage the affection and modification of the continuing application of the enumerated Imperial Acts by ordinary legislation enacted by the State Parliament. Accordingly, any guarantee of trial by jury in Magna Carta can be, and has been, overridden by the Supreme Court Act and Rules as far as contempt is concerned.

Counsel made reference to the guarantee of trial by jury in respect of indictable offences against any Federal law in s 80 of the Commonwealth Constitution. In oral argument he acknowledged that s 80 is concerned only with Commonwealth offence and, as I understand it, his reference to the section was merely as part of the history of the development of trial by jury in this country, and as an indication of the respect afforded to that method of trial. For the plaintiff, the Crown Advocate queried whether any submission based on s 80 might involve a matter arising under the Constitution so as to require the procedure under s 78B of the Judiciary Act 1903 to be followed. When I reserved judgment I invited counsel for the defendant to provide submissions in writing if he wished to proceed in accordance with s 78B of the Judiciary Act would be considered. As it happened, Mr Wilson withdrew his instructions from his legal advisers shortly thereafter. He has since forwarded some written material to me which refers to s 80 of the Constitution, but takes the matter no further. I am satisfied that the proceedings before me do not involve a matter arising under the Constitution or involving its interpretation, and s 78B of the judiciary Act has no application.

A submission was also made that the prosecution under s 326 of the Crimes Act, which would be on indictment, should proceed in advance of (or perhaps instead of) the contempt proceedings, so as to afford the defendant the benefit of a trial by jury. This argument alas is without substance. As the Crown Advocate pointed out, the deferral of the prosecution under s 326 is a legitimate exercise of prosecutorial discretion and this court could not compel the Director to take some other course.

Accordingly, the application for trial by jury in respect of the alleged contempt must be dismissed. 

I certify that this and the 2 preceding pages are a true copy of the judgment herein of the Honourable Justice peter Hidden

Dated      Associate.



Monday 6 July 1998

CA 40127/98


REGISTRAR: In these proceedings Mr Wilson, the claimant, filed a notice of appeal on 17 March 1998 from a decision of hidden J of 16 March 1998 dismissing an application by Mr Wilson that contempt proceedings against Mr Wilson be tried by jury. Such an appeal requires leave pursuant to Section 101(2)(e) of the Supreme Court Act.

A summons for leave to appeal was subsequently filed by Mr Wilson on 10 June 1998, and those proceedings will be called over by the Registrar on 27 July 1998. In those proceedings (ie in the application for leave to appeal) Mr Wilson has filed a notice of motion that the application for leave be tried by a jury. That motion is returnable before me today.

The matter has been called outside the Court and there has been no appearance for the opponent. Mr Wilson has filed in Court an affidavit indicating that the motion and the affidavit in support were served on the opponent on 26 June 1998. Under those circumstances I have proceeded to hear the motion today. In support of the motion I have read an affidavit of Mr Wilson sworn 22 June 1998.

The purpose of a jury in the Supreme Court is to determine questions of fact, not questions of law. The Court of Appeal is not a tribunal where questions of fact normally have to be determined, as such in the ordinary course there is no role for a jury in the Court of Appeal.

The Court of Appeal is constituted pursuant to the Supreme Court Act. Section 43(1) of the Supreme Court Act says that any three or more Judges constitute the Court of Appeal. Section 46B(2) of the Supreme Court Act authorises leave applications to be determined by such two Judges of Appeal as the President directs, if the Chief Justice deems that to be appropriate.

Because section 101(2) of the Supreme Court Act specifically says that leave applications are to be determined by the Court of Appeal, there does not appear to me to be any role for a jury in a leave to appeal application. The purpose of the leave application is for the Court to exercise a judicial discretion. In exercising that judicial discretion the Court will look at the prospects of the appeal being successful, that is an assessment of the relevant law, and in the case (which involves an interlocutory rather than a final order), it will also look at whether it is appropriate that the appeal be heard at this stage of the proceedings (rather than after the matter has been finally determined). In neither case is that judicial discretion a mater that can be delegated to a jury.

For those reasons the application must be dismissed. In the absence of the opponent to the motion in Court today I make no order in respect of the costs of the motion, but reserve liberty to the opponent to apply within 7 days of today. I also direct that the registry advise the Crown Solicitor's Office that the application has been determined today.  I make no other orders.

Certified correct
Steve Jupp
Registrar, Court of Appeal. 8/7/98




Monday 24 August 1998



HANDLEY JA: This is an application by Mr John Wilson for leave to appeal against a decision of Hidden J on 16 March 1998. Hidden J held that Mr Wilson had no right to trial by jury in proceedings pending in the Common Law Division against him for contempt of court arising out of incidents on 5 September 1997.

The question whether a person accused of the offence of contempt of court is entitled to a trial by jury is obviously an important one. However, a consistent course of decision of this Court established that there no right to trial by jury in such cases. The earliest of these decisions is The Registrar of the Court of Appeal v Willesee & Ors (1984) 2 NSWLR 378. Mr Willesee sought leave to appeal from the High Court of Australia from that decision which was refused on 7 December 1984. This Court followed that decision in Galea v New South Wales Egg Corporation on 28 November 1989 and again in United Telecasters Sydney Limited v Hardie in 1991.

In view of that consistent body of decision extending back over some fifteen years, and the refusal of special leave to appeal by the high Court on 7 December 1984, the proposed appeal of Mr Wilson has no prospects of success. For that reason leave to appeal is refused and it must be refused with costs.
I Certify that this and the one (1) preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Handley and of the Court.

Jennifer Donaldson
Date Associate
24 August 1998.



Tuesday 6 April 1999



 In these proceedings the plaintiff, Mr Williams, appears for himself. The matter presently returnable before the Court is a notice of motion filed on 18 March in which the plaintiff seeks what is described as a prohibitive injunction under s 66 of the Supreme Court Act. Essentially the relief sought is to restrain the defendant bank from exercising a power of sale over property which is mortgaged by the plaintiff to the bank. This morning the defendant's solicitors have produced a letter, a copy of which has been handed to the plaintiff, and a further copy of which has been handed to me. The content of this letter after formal reference to the proceedings is a follows:

"In reference to the above proceedings, we are instructed that our client is prepared to undertake inter-parties (sic) without admission and without prejudice to any proceedings that our client may bring for possession, that our client will not exercise any power of sale in respect of the mortgaged property located at 19 Elm Place, North Rocks except on 14 days notice to you pending the determination of these proceedings No : 20100 of 1999."

2.I have signed the copy of the letter handed to me for identification and direct that it be placed with the papers. In the light of that undertaking, and by consent, the motion is dismissed and, by further consent, there is no order as to costs.

I certify that paragraphs 1-2 are a true copy of the reasons for judgment herein of the Honourable Mr Justice Grove.
Associate: V.J. King Date : 7 April 1999

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