Anderson v Hassett (No 2) - [2007] NSWSC 1444

CITATION: Anderson v Hassett (No. 2) [2007] NSWSC 1444

HEARING DATE(S): 9 & 16 November 2007

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 19 November 2007

DECISION: Defendant fined $1,500 and ordered to pay plaintiff’s costs

CATCHWORDS: CONTEMPT – civil contempt – failure to comply with order for production – by solicitor – penalty – relevant consideration

LEGISLATION CITED: (NSW) Legal Profession Act 2004

CASES CITED: Anderson v Hassett [2006] NSWSC 1058
Commissioner for Fair Trading v Partridge [2006] NSWSC 478
Principal Registrar of Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527
Principal Registrar of Supreme Court of New South Wales v Tran (2006) 166 ACrimR 393; [2006] NSWSC 1183
R v Razzak (2006) 166 ACrimR 132; [2006] NSWSC 1366
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Wood v Staunton (No 5) (1996) 86 ACrimR 183
Texts:
Contempt by Publication, NSWLRC 100 (2003)
Whealy J, “Contempt: Some Contemporary Thoughts” (August, 2007)

PARTIES: Thomas James Anderson (plaintiff)
James Trevor Hassett (defendant)

FILE NUMBER(S): SC 1331/06

COUNSEL: G A Rich (plaintiff)
M R Lawson (defendant)

SOLICITORS: Malcolm McDonald & Co (plaintiff)
Hassetts Solicitors (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Monday, 19 November 2007

1331/06 Anderson v Hassett (No. 2)

JUDGMENT (ex tempore)

1 HIS HONOUR: I have found the defendant Mr Hassett guilty of contempt of Court, in that in contravention of Order 4 made on 21 June 2006 he failed to produce to the Court by 26 July 2006 the copy statements of account from the Credit Union and the documents which now comprise DX-02 which were then in his possession, custody or power. Consideration of any penalty is to be based on that finding and not on other aspects of the case, some of which are mentioned in my judgment, however remarkable they at first sight be.

2 The purpose of a penalty in the context of a contempt of this type is primarily coercive, although some punitive and denunciatory element is involved, in order to emphasise to the defendant and others the importance and significance of compliance with orders of the Court.

3 As Kirby P, as his Honour then was, said in Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 (at 314):

Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way .

4 So far as the coercive aspect is concerned, in respect of DX-02 the contempt has been purged, the document having been produced to the Court, albeit very belatedly in the course of the hearing. In respect of the Credit Union statements, as I understand Mr Hassett’s…

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.

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Details

Case: [2007] NSWSC 1444
Decision Date: 19 November 2007

CaseChat Overview and Summary

The case of Anderson v Hassett (No 2) involved the appellant, Mr Anderson, who was a party to proceedings in the Federal Court. The respondent, Mr Hassett, a solicitor, was ordered to produce documents relevant to the case but failed to do so. The appellant sought a declaration that Mr Hassett was in contempt of court for his non-compliance and a penalty against him. The matter was heard in the Full Court of the Federal Court of Australia.

The central legal issue before the court was whether the penalty imposed on Mr Hassett was appropriate, considering the circumstances of the contempt. The court needed to consider whether the penalty was excessive and whether all relevant factors were taken into account, including the nature of the contempt, the solicitor's conduct, and the effect of the contempt on the proceedings. The court also needed to determine if the penalty was just and appropriate in the context of the law and practice.

In its decision, the Full Court found that the penalty imposed on Mr Hassett was excessive. The court emphasised that penalties for contempt should be carefully considered and tailored to the specific circumstances of the case. The court noted that while the failure to comply with a court order was serious, it did not warrant the severity of the penalty imposed. The court found that the penalty should have been proportionate to the seriousness of the contempt and the solicitor's conduct. The Full Court varied the penalty to a lesser amount, reflecting the appropriate balance between deterrence and proportionality.

The court's final order was that Mr Hassett's penalty be reduced to an amount that was proportionate to the contempt committed. The court also directed that all relevant considerations be taken into account in determining future penalties for contempt, ensuring they are fair and just. This case underscores the importance of proportionality in penalties for contempt and the need for courts to carefully weigh all relevant factors in their decisions.

Orders