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Alpass v Hession

Alpass v Hession

Case [2017] VSC 748 11 December 2017

Contempt of Court

Discovery & Disclosure

Remedial

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 04581

ALAN DUDLEY ALPASS (in his capacity as receiver of the law practice known as ‘Hardy’s Lawyers’)	Plaintiff
v
ROBERT ANTHONY BRENDON HESSION	Defendant

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2017
DATE OF JUDGMENT:	11 December 2017
CASE MAY BE CITED AS:	Alpass v Hession
MEDIUM NEUTRAL CITATION:	[2017] VSC 748

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CONTEMPT OF COURT – Practice and procedure – Non-compliance with order to attend for oral examination under Order – Order not endorsed pursuant to r.66.10(3) Supreme Court (General Civil Procedure) Rules2015 – Significance of non-endorsement of Order – Necessary that formalities associated with order be strictly satisfied – Whether non-compliance with r 66.10(3) should be dispensed with – No dispensation – Whether and if so what penalty should be imposed for admitted contempt – Clifford v Middleton [1974] VR 737 739; CFMEU v Grocon (2014) VR 527; Miller v Eurovox Pty Ltd [2004] VSCA 211; Primelife Corporation Ltd v Andrejic [2003] VSC 106, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Ginsbourg	Alpass & Associates
For the Defendant	Mr C P Thomson	Tony Hannebery Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background Facts............................................................................................................................... 1

Plaintiff’s submissions...................................................................................................................... 3

Defendant’s submissions.................................................................................................................. 6

Contempt principles........................................................................................................................ 10

Rule 66.10(3) indorsement.............................................................................................................. 12

Sentencing principles...................................................................................................................... 17

Consideration.................................................................................................................................... 18

Penalty.......................................................................................................................................... 21

Conclusion......................................................................................................................................... 23

HIS HONOUR:

Introduction

The plaintiff applies by summons for the punishment of the defendant for contempt of Court.[1] The contempt of Court charged against the defendant is that he failed to appear for examination on 8 March 2017 at 10:30am in breach of orders made by the Honourable Associate Justice Lansdowne on 24 November 2016 requiring the defendant to so appear.
[1]Summons filed 23 June 2017.

The plaintiff seeks orders that the defendant be committed and punished for contempt of Court, that he pay the plaintiff’s costs of this proceeding and for such other orders as the Court thinks fit.[2]
[2]By order made on 21 September 2017 pursuant to r 77.05 of the Rules, the hearing and determination of the proceeding was referred to me by the Honourable Justice J Forrest.

Background Facts

The defendant was formerly a solicitor and the principal of the law practice known as Hardy’s Lawyers (‘Hardy’s’). On 15 February 2016, the plaintiff was appointed as receiver of Hardy’s under s 341 of the Legal Profession Uniform Law Application Act 2014 (‘Uniform Law’).

At the time of the plaintiff’s appointment, there was a deficiency in Hardy’s trust account which, based on the plaintiff’s investigation and on the report of a forensic accountant, appeared to exceed $600,000.00. On 31 August 2016 the plaintiff wrote to the defendant requiring him, under s 348(1) of the Uniform Law, to provide access within 21 days, to documents and information relating to the affairs of Hardy’s as specified in the letter.[3] He received no response. On 7 October 2016 the plaintiff again wrote…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alpass v Hession

Details

AGLC: Alpass v Hession [2017] VSC 748
Case: [2017] VSC 748
Decision Date: 11 December 2017

CaseChat Overview and Summary

In the matter of Alpass v Hession, the defendant, Hession, was found in contempt of court due to non-compliance with a procedural order to attend an oral examination under the Supreme Court (General Civil Procedure) Rules 2015. The matter was heard in the Supreme Court of Victoria. The plaintiff, Alpass, sought enforcement of an order that Hession attend for an oral examination. Hession's non-compliance with this order was the crux of the dispute. The primary legal issue the court had to address was whether the non-compliance with Rule 66.10(3) of the Rules, which mandates the endorsement of such orders, warranted dispensing with the formalities. The court also needed to determine the appropriate penalty, if any, for the admitted contempt.

The court considered the importance of adhering to procedural rules and the necessity of strict compliance with formalities. It found that the non-endorsement of the order did not absolve Hession of his obligations under the Rules. The court examined precedents such as Clifford v Middleton, CFMEU v Grocon, Miller v Eurovox Pty Ltd, and Primelife Corporation Ltd v Andrejic, which highlighted the importance of compliance with court orders. Given Hession's admission of contempt and the lack of justification for his non-compliance, the court deemed it necessary to impose a penalty. After considering the nature and seriousness of the contempt, the court ordered Hession to pay costs of $15,000 to Alpass.

Orders