RE Bride, Edward James; EX PARTE Stewart, Bryan Guthrie [1996] FCA 27

CATCHWORDS PROCEDURE - contempt of the Court - application to detain respondent for contempt of court in respect of concluded proceedings - distinction between contempt of the Court and alleged perjury. Federal Court of Australia Act 1976 (Cth), ss31(1) and (2) Rules of the Federal Court of Australia, O40 Div1 Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Coward v Stapleton (1953) 90 CLR 573 RE EDWARD JAMES BRIDE; EX PARTE BRYAN GUTHRIE STEWART NO. WB 455 OF 1984 JUSTICE R D NICHOLSON PERTH 19 JANUARY 1996

IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY) GENERAL DIVISION ) NO. WB 455 OF 1984 RE: EDWARD JAMES BRIDE Applicant EX PARTE: BRYAN GUTHRIE STEWART Respondent MINUTE OF ORDER JUDGE MAKING ORDER: JUSTICE R D NICHOLSON DATE OF ORDER: 19 JANUARY 1996 WHERE MADE: PERTH THE COURT ORDERS THAT: The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY) GENERAL DIVISION ) NO. WB 455 OF 1984 RE: EDWARD JAMES BRIDE Applicant EX PARTE: BRYAN GUTHRIE STEWART Respondent CORAM: JUSTICE R D NICHOLSON DATE: 19 JANUARY 1996 PLACE: PERTH REASONS FOR JUDGMENT This is an ex parte application to detain the respondent. The applicant seeks orders that the respondent be arrested and imprisoned until further order unless or until he deposits a sum to be fixed or provides a bond and two sufficient sureties or some other security. In support of the application the applicant relies upon an affidavit in which he deposes that there is evidence that the respondent has deliberately and falsely deposed in certain paragraphs of affidavits and given false oral evidence before this Court in proceedings now complete in relation to the applicant, who was then a bankrupt. It is further deposed that the respondent has in the past deliberately and with intent absconded from the jurisdiction of the Court so as not to be able to give evidence or be questioned on evidence which it is alleged by the applicant is false. The applicant also deposes to a belief that the respondent's immediate intention is to leave the country as soon as certain family commitments of his have been finalised. The application is brought in reliance on the powers of the Court to punish contempts contained in the Federal Court of Australia Act 1976 (Cth), s31(1) of which reads: "Subject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court and, where the contempt relates to the exercise of jurisdiction in a Division of the Court, the jurisdiction to punish that contempt shall be exercised in that Division of the Court."

The High Court of Australia has considered the nature of contempt in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106. The Court said: "Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as "civil contempt"; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as "criminal contempt" ..."

This dicta illustrates the distinction between civil and criminal contempt. In s31(2) it is provided that: "The jurisdiction of the Court to punish a contempt of the Court committed in the face or hearing of the Court may be exercised by the Court as constituted at the time of the contempt."

Order 40 Div1 of the Rules of the Federal Court of Australia ("FCR"), provides rules which are applicable in relation to contempt in the face or hearing of the Court. It is apparent in the instant case that the proceedings are not in the face or hearing of the Court in that the proceedings in which the contempt is said to have occurred are now complete. These provisions cannot therefore be of assistance to the applicant. It is also patent that the alleged case for contempt is not based upon any disobedience to enforcement of the process and orders of the Court. On the contrary, it seeks to bring the respondent within that process and to make him subject to orders. There is no present disobedience upon which contempt could operate. There is a fine line to be drawn between contempt and perjury. In C J Miller, Contempt of Court 2nd ed, (1989) at 117 it is said that line is "a difficult borderline". That text speaks of the difficulty in drawing the line during the giving of evidence, but that is not the relevant case here. The text also draws attention to the decision of the High Court of Australia in Coward v Stapleton (1953) 90 CLR 573 at 578-9 where the court said: "Of course a purported answer may be so palpably false as to indicate that the witness is merely fobbing off the question . . . In such cases it may well be right to say that the witness refused to answer the question, but it cannot be too clearly recognised that the remedy for giving answers which are false is normally a prosecution for perjury or false swearing, and not a summary committal for contempt."

The text continues by pointing out that, if the position were otherwise, the alleged contemnor would be deprived of both a jury trial and any safeguard against conviction which may exist under legislation relating to alleged perjuries. It seems to me that the present case not only fails to deal with a current proceeding but also relies upon allegedly false answers which fall on that side of the borderline which brings them into the realm of the criminal law and the possibility of a prosecution for perjury. This application is not the means for initiating such a prosecution. For the applicant it is argued alternatively that the Court should rely on its inherent jurisdiction and power to authorise the orders which he seeks in view of the fact that, if the falsity on which he relies is established, the affront to the administration of justice would be such as would justify the intervention of the Court. In my opinion, even if the Court has the jurisdiction contended for it should not be exercised because that argument is outweighed by the consideration that if criminal liability is at issue, the normal processes of the criminal law with such safeguards as it brings should not be circumvented. Because I am of the opinion that the matters raised fall into the category of allegations of perjury, I consider that any public interest factor relating to the administration of justice, such as that relied upon by the applicant, is outweighed by the need to observe the public interest of not allowing a criminal prosecution to be brought other than in accordance with the criminal law. For these reasons the application must be dismissed. I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson. Associate: Date:

APPEARANCES Mr E J Bride appeared as a litigant in person. Date of Hearing: 19 January 1996 Date of Judgment: 19 January 1996