Attorney General v Morrison [No 2] - [2022] WASC 295

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ATTORNEY GENERAL -v- MORRISON [No 2] [2022] WASC 295
CORAM:   CURTHOYS J
HEARD:   4 AUGUST 2022
DELIVERED          :   2 SEPTEMBER 2022
FILE NO/S:   CIV 1361 of 2022
BETWEEN:   ATTORNEY GENERAL
Applicant
AND
ROBERT NOEL MORRISON
First Contemnor
ROBERT FRANK MORRISON
Second Contemnor

Catchwords:

Contempt of court - Breach of undertaking given to State Administrative Tribunal - Aiding and abetting breach of undertaking - Elements of contempt of court for breach of undertaking

Legislation:

Rules of the Supreme Court 1971 (WA), O 55 r 4, r 7(1)
State Administrative Tribunal Act 2004 (WA), s 100(1)

Result:

First contemnor guilty of contempt
Second contemnor guilty of contempt

Category: B

Representation:

Counsel:

Applicant	:	J Shaw
First Contemnor	:	In person
Second Contemnor	:	In person

Solicitors:

Applicant	:	State Solicitor for Western Australia
First Contemnor	:	Not applicable
Second Contemnor	:	Not applicable

Cases referred to in decision:

Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Australasian Meat Industry Employees' Union v Mudginberri Station [1986] HCA 46; 161 CLR 98
Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195
Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261
Hammond v Aboudi [2005] 31 WASCA 204; (2005) WAR 533
International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258
Seaward v Paterson [1897] 1 Ch 545
The Queen v Hinch [2013] VSC 520
Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
Z Ltd v A-Z [1982] 1 QB 558

CURTHOYS J:

Introduction

The applicant, the Attorney General, seeks orders that the first contemnor, Robert Noel Morrison (Mr Morrison Snr), and the second contemnor, Robert Frank Morrison (Mr Morrison Jnr), be punished for contempt of court for the sale of a property in contravention of an undertaking given to the State Administrative Tribunal (the Tribunal). These proceedings arise from a report to this court concerning the conduct of the Morrisons by the President of the Tribunal on 2 September 2021 pursuant to s 100(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
On 5 August 2021, in the course of a directions hearing for guardianship and administration proceedings before the Tribunal (proceedings GAA 2976/2021), Mr Morrison Snr gave an undertaking to the Tribunal (the Undertaking). The Undertaking was that 'he would not sell, charge, transfer, mortgage (including increasing the amount of any loan either by further application or by accessing any redraw facility) or otherwise deal with the property at 146 Old Dairy Court, Oakford, Western Australia' (the Property).[1]
[1] Affidavit of Yasmin Salleh sworn 13 April 2022 [7], [9] - [10], attachment YS2, (9 - 14), attachment YS3 (First Salleh Affidavit).
The Undertaking was given by Mr Morrison Snr in the presence of his son, Mr Morrison Jnr, who attended the Tribunal hearing with him.[2]
[2] First Salleh Affidavit [8], attachment YS2 (6 - 7); Affidavit of Robert N Morrison sworn 8 June 2022 [22] ‑ [23] (RNM Affidavit); Affidavit of Robert Frank Morrison sworn 8 June 2022 [26] ‑ [27] (RFM Affidavit).
At the time he gave the Undertaking, Mr Morrison Snr did not disclose to the Tribunal that he had already entered into a contract to sell the Property to Mr Morrison Jnr. Further, Mr Morrison Jnr did not disclose that the Property had been sold to him.
On 6 August 2021, settlement of the sale of the Property from Mr Morrison Snr to Mr Morrison Jnr was completed and the Property was transferred to Mr Morrison Jnr.[3]
[3] First Salleh Affidavit [13], attachment YS4, attachment YS6.
The Attorney General alleges that the sale of the Property by Mr Morrison Snr in contravention of the Undertaking and the conduct of Mr Morrison Jnr in aiding and abetting the contravention constitute contempt of court.

The application

By notice of originating motion dated 14 April 2022, the Attorney General applies for orders that the Morrisons be punished for contempt of court pursuant to s 100(1) of the SAT Act and O 55 of the Supreme Court Rules 1971 (WA) (the Rules).
The grounds of the application with respect to the conduct of Mr Morrison Snr are that he contravened the Undertaking by:
(a) selling or transferring;
(b)engaging in acts or conduct to effect or complete the sale, or registration at Landgate of the transfer, of; or
(c)omitting to engage in acts or conduct to prevent the completion of the sale, or registration at Landgate of the transfer, of;
the Property to Mr Morrison Jnr on 6 August 2021 (First Contempt).
The grounds with respect to the conduct of Mr Morrison Jnr are that on 6 August 2021 he:
(a)engaged in acts or conduct to enable Mr Morrison Snr to effect or complete the sale, or registration at Landgate of the transfer, of; or
(b)omitted to engage in acts or conduct to prevent the completion of the sale, or registration at Landgate of the transfer, of;
the Property, to himself (Second Contempt).[4]
[4] Notice of originating motion for punishment of contempt of court filed 13 April 2022, 3.
The Attorney General's primary case is that Mr Morrison Snr and Mr Morrison Jnr are guilty of criminal contempt.

Relevant legislative provisions

The alleged contempts were the subject of a report to this court pursuant to s 100(1) of the SAT Act, which provides:
If the President is satisfied that an act or omission of a person would constitute a contempt of the Court if a proceeding of the Tribunal were a proceeding in the Supreme Court, the President may report that act or omission to the Supreme Court and the Court has jurisdiction to deal with the matter as if it were a contempt of the Court,
The jurisdiction of this court to punish for contempt of court is governed by O 55 of the Rules. Order 55 r 4 of the Rules relevantly provides that in cases of contempt other than those involving contempt in the face of the court, application for punishment for contempt of court must be made by motion on notice to the contemnor.
Order 55 r 7(1) of the Rules provides that the court may punish contempt of court by committal of the contemnor to prison, or by imposing a fine on him, or by both committal and fine.
By providing that the court has jurisdiction to deal with a matter 'as if it were a contempt of the Court', the effect of s 100(1) of the SAT Act is that O 55 of the Rules applies to govern the procedure by which the court is to exercise its jurisdiction in dealing with matters reported under that section.[5]
[5] Hammond v Aboudi [2005] WASCA 204; (2005) 31 WAR 533, [22] (McLure JA, Wheeler JA & Le Miere AJA agreeing); Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [58] (McLure P, Mazza JA agreeing).

General principles relating to contempt

All proceedings for contempt, whether the contempt alleged is civil or criminal, are realistically criminal in nature. The consequence is that any charge of contempt must be proved beyond reasonable doubt.[6]
[6] Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey & Gaudron JJ).
Contempt of court is a common law offence preserved by s 7 of the Criminal Code (WA). The Tribunal is not a court of record and accordingly any conduct that interferes with the proper administration of justice by the Tribunal does not of itself constitute contempt. Section 100(1) of the SAT Act overcomes this obstacle by ensuring that conduct in relation to Tribunal proceedings may be punished as if it were contempt of the Supreme Court.
The underlying rationale of the court's contempt power is to uphold and protect the effective administration of justice.[7]
[7] Australasian Meat Industry Employees' Union v Mudginberri Station [1986] HCA 46; 161 CLR 98, 107 (Gibbs CJ, Mason, Wilson & Deane JJ).
A party to civil proceedings who disobeys a court order or contravenes an undertaking given to the court is guilty of contempt of court. This type of contempt is usually regarded as being a civil contempt.[8] However, if the disobedience of the court order or contravention of the undertaking involves wilful or deliberate defiance, sometimes referred to as 'contumacious', the contempt will constitute the criminal offence of contempt of court.[9] In Witham v Holloway,[10] McHugh J explained that '[w]here non-compliance with a judgment or order goes beyond mere breach and involves misconduct, civil contempt also has ''a penal or disciplinary jurisdiction [that is] exercised by the court in the public interest"'.
[8] Witham v Holloway (530) (Brennan, Deane, Toohey & Gaudron JJ), (538 - 539) (McHugh J).
[9] Witham v Holloway (530) (Brennan, Deane, Toohey & Gaudron JJ), (538 - 539) (McHugh J); Australasian Meat Industry Employees' Union v Mudginberri Station (108); Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [73] - [74] (Beazley JA), [167] (Lindgren AJA), [173] (McColl JA).
[10] Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 539.
Where contempt proceedings are brought for the breach of an order of the court, certain elements have been identified as necessary to prove contempt of court.[11] In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd,[12] Gillard J set out these elements in the following terms:
(i)that an order was made by the court;
(ii)that the terms of the order are clear, unambiguous and capable of compliance;
(iii)that the order was served on the alleged contemnor or excused in the circumstances, or service dispensed with pursuant to the Rules of Court;
(iv)that the alleged contemnor has knowledge of the terms of the order;
(v)that the alleged contemnor has breached the terms of the order.
It is necessary for the plaintiff to prove each element beyond reasonable doubt. In accordance with the principles of the criminal law, in proving element (v) it must be proven that the act or omission which constituted the breach of the order was deliberate and voluntary.
[11] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 [27] - [28]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [31] - [32].
[12] Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [31] - [32].
In Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd,[13] the Full Court of the Victorian Court of Appeal similarly stated with respect to the breach of an undertaking: 'In order to prove a civil contempt involving the breach of an undertaking or order it must be established that the order is clear and capable of compliance, that the alleged contemnor has knowledge of the terms of the order and has by his act or omission breached the terms of the order'.
[13] Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 [139].
An undertaking has the force of a court order and must also be obeyed according to its terms.[14] Accordingly, as the Full Court in Construction Forestry Mining and Energy Union in effect recognised, the elements articulated by Gillard J in Advan in respect of a court order are applicable to proof of a contempt involving breach of an undertaking and may be taken as so for the breach of an undertaking given to the Tribunal. The only exception in this regard is the requirement relating to service. There are no relevant rules of the Tribunal or court requiring service of an order recording an undertaking before enforcement action may be taken.[15] Proof that the contemnor has knowledge of the terms or at least the substance of the undertaking is sufficient.[16]
[14] Pang v Bydand Holdings Pty [51] (Beazley JA).
[15] Compare Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110, 113.
[16] Perpetual Trustees Victoria Ltd v Allen [28]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [31] - [32]. These cases concerned the breach of an order but their principles are equally applicable to the breach of an undertaking.
Accordingly, in order to prove a civil contempt of court involving a breach of an undertaking to the court, the applicant must prove:
(a)an undertaking was given to the court or tribunal;
(b)the terms of the undertaking were clear, unambiguous and capable of compliance. The court should seek to give meaning to the undertaking if its terms so permit. In this regard, the context in which the undertaking was given is relevant to its proper construction;[17]
(c)the contemnor has knowledge of the terms of the undertaking;
(d)the contemnor has by their act or omission breached the terms of the undertaking; and
(e)the act or omission which constituted the breach of the undertaking was deliberate and voluntary; it must have been more than causal, accidental or unintentional. It is unnecessary to establish that the alleged contemnor had a specific intention to break the law. What is required is proof that they were aware of the facts that made their act or omission a breach of the undertaking.[18]
[17] Pang v Bydand Holdings Pty Ltd [59] (Beazley JA).
[18] Perpetual Trustees Victoria Ltd v Allen [27]; International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201 [43] - [68]; Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 [5].
In Pang v Bydand Holdings Pty Ltd,[19] the appellant was convicted of contempt of court for a deliberate and contumacious breach of an undertaking by entering into a contract for the sale of a particular property without providing the respondent's legal representatives notice. At first instance, the appellant failed to inform the court of the existence of a joint venture pursuant to which the sale was made.[20] Beazley JA (McColl JA agreeing) held that the omission to state the existence of a joint venture led the judge at first instance to conclude that the breach was deliberate. That inference was found to be available and inevitable.[21]
[19] Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [11] (Beazley JA).
[20] Pang v Bydand Holdings Pty Ltd [32] - [35] (Beazley JA).
[21] Pang v Bydand Holdings Pty Ltd [129].
A non-party to proceedings who, with knowledge of a court order or undertaking, does an act which infringes or frustrates the efficacy of the order and thus interferes with the due administration of justice, is guilty of criminal contempt.[22]
[22] The Queen v Hinch [2013] VSC 520 [55].
The basis upon which a non-party may be punished for contempt of an undertaking is different to the basis upon which the party who gave that undertaking is punished for breach of that undertaking. In Seaward v Paterson,[23] where contempt proceedings were brought for the breach of an injunction, Lindley LJ said:
A motion to commit a man for breach of an injunction, which is technically wrong unless he is bound by the injunction, is one thing; and a motion to commit a man for contempt of Court, not because he is bound by the injunction by being a party to the cause, but because he is conducting himself so as to obstruct the course of justice, is another and a totally different thing. The difference is very marked. In the one case the party who is bound by the injunction is proceeded against for the purpose of enforcing the order of the Court for the benefit of the person who got it. In the other case the Court will not allow its process to be set at naught and treated with contempt. In the one case the person who is interested in enforcing the order enforces it for his own benefit; in the other case, if the order of the court has been contumaciously set at naught the offender cannot square it with the person who has obtained the order and save himself from the consequences of his act.
[23] Seaward v Paterson [1897] 1 Ch 545, 555 - 556.
Contempt by a non-party requires a deliberate act or omission that assists the breach of an undertaking. As Everleigh LJ stated in Z Ltd v A-Z:[24]
I think that the following propositions may be stated as to the consequences which ensue when there are acts or omissions which are contrary to the terms of an injunction. (1) The person against whom the order is made will be liable for contempt of court if he acts in breach of the order after having notice of it. (2) A third party will also be liable if he knowingly assists in the breach, that is to say if knowing the terms of the injunction he wilfully assists the person to whom it was directed to disobey it. This will be so whether or not the person enjoined has had notice of the injunction
[24] Z Ltd v A-Z [1982] 1 QB 558.

Evidence

In support of the contempt application, the Attorney General relied on the following affidavits:
(a)Affidavit of Yasmin Salleh sworn 13 April 2022;[25]
(b)Affidavit of Ebony Rae Bishop affirmed 8 July 2022;[26] and
(c)Second Affidavit of Yasmin Salleh sworn 11 July 2022.[27]
[25] Exhibit A.
[26] Exhibit B.
[27] Exhibit C.
Mr Morrison Snr and Mr Morrison Jnr have each filed an affidavit, both sworn on 8 June 2022, in response to the application.[28] The affidavits contain a significant amount of hearsay evidence and evidence which is objectionable on other grounds.
[28] Exhibit C and exhibit D.
The Attorney General objected to the hearsay statements in the affidavits being received as evidence of the truth of their contents. However, he did not object to their affidavits otherwise being received as evidence of what Mr Morrison Snr and Mr Morrison Jnr were told or what they believed (based on what they were told by others) as appropriate. I accepted the affidavits into evidence on that basis.
Mr Morrison Snr and Mr Morrison Jnr were each cross-examined on their respective affidavits.

Summary of the evidence

The following summary of the evidence is taken from the Attorney General's detailed submissions with additional references to the oral evidence of the Morrisons.
In around August 2019, Mr Morrison Snr commenced a relationship with DMC.[29] DMC told Mr Morrison Snr that she was married but her relationship with her husband had broken down.[30] At some point in time they started living together in Mr Morrison Snr's park home in Mandurah.[31]
[29] RNM Affidavit [3] - [4]; RFM Affidavit [2].
[30] RNM Affidavit [5].
[31] RNM Affidavit [7], [10]; RFM Affidavit [5].
In or around early March 2021, DMC was admitted to hospital due to mental health issues.[32]
[32] RNM Affidavit [14]; Second Affidavit of Yasmin Salleh sworn 11 July 2022 [6], attachment YS8 (5 - 6) (Second Salleh Affidavit).
At some point prior to 23 March 2021, but after DMC had been admitted to hospital, DMC transferred approximately $500,000 into Mr Morrison Snr's bank account for the purpose of purchasing a house.[33]
[33] RNM Affidavit [12] - [13]; RFM Affidavit [14]; Second Salleh Affidavit [6], attachment YS8 (24).
Mr Morrison Snr subsequently obtained a loan and purchased the Property for approximately $1.1 million.[34]
[34] RNM Affidavit [13]; RFM Affidavit [15]; First Salleh Affidavit [13], attachment YS5.
Settlement of the purchase occurred on 23 March 2021. The title to the Property was transferred into Mr Morrison Snr's name only.[35]
[35] First Salleh Affidavit [13], attachment YS4 (40); Affidavit of Ebony Rae Bishop affirmed 8 July 2022 [6], attachment ERB2 (11) (Bishop Affidavit); Second Salleh Affidavit [6], attachment YS8 (21 - 22).
Following settlement, Mr Morrison Snr and Mr Morrison Jnr moved into the Property.[36]
[36] RNM Affidavit [16]; RFM Affidavit [21].

On 26 March 2021, an administration order was made in respect of DMC by the Tribunal. The order was made following a hearing which DMC and Mr Morrison Snr (among others) attended via video‑link from Fremantle Hospital.[37] In making the order, the Tribunal found that DMC suffered from a chronic mental illness, was subject to episodic relapses and was in need of an administrator at the time because she lacked capacity. The order appointed the Public Trustee as DMC's plenary administrator.[38]
[37] Second Salleh Affidavit [6], attachment YS8 (5 - 6).
[38] Second Salleh Affidavit [6], attachment YS8 (37, 40).
In cross‑examination in these proceedings, Mr Morrison Jnr made it clear to the court that in his view the Tribunal's order had been wrongly made. He stated that DMC 'has not got any mental illness, it's a load of rubbish'.[39]
[39] ts 39 (4/8/2022).
The administration order made by the Tribunal included a specific direction that the Public Trustee consider whether an application under s 82 of the Guardianship and Administration Act 1990 (WA) (GA Act) should be made to the Tribunal in respect of DMC's transfer of funds to Mr Morrison Snr.[40]
[40] Second Salleh Affidavit [6], attachment YS8 (40).
After DMC was released from hospital, she also moved into the Property.[41]
[41] RNM Affidavit [17]; RFM Affidavit [20].
On 19 June 2021, Mr Morrison Snr entered into a contract of sale with Mr Morrison Jnr in relation to the Property. Pursuant to the contract of sale, the purchase price of the Property was $1.15 million.[42]
[42] Bishop Affidavit [6] - [7], attachment ERB2.
Mr Morrison Snr and Mr Morrison Jnr arranged for Mr Morrison Jnr to pay Mr Morrison Snr $650,000 and for Mr Morrison Snr to gift Mr Morrison Jnr his existing $500,000 equity in the Property.[43]
[43] Bishop Affidavit [10], [14], attachment ERB4, attachment ERB8.
On or around 23 July 2021, Mr Morrison Jnr obtained a loan for $725,000 from AMP Bank for the purpose of his purchase of the Property and other miscellaneous expenses.[44]
[44] Bishop Affidavit [10], attachment ERB4.
Meanwhile, on 16 July 2021, the Public Trustee commenced proceedings GAA 2976/2021 in the Tribunal by applying in its capacity as administrator of DMC's estate for orders pursuant to s 82 of the GA Act for the sale of the Property and the payment of just less than $500,000 to DMC out of the sale proceeds (s 82 application).[45]
[45] First Salleh Affidavit [5] - [6].
Mr Morrison Snr was personally served with a copy of the Public Trustee's s 82 application on 28 July 2021.
At the same time, Mr Morrison Snr was served with a copy of the Public Trustee's minute of proposed orders for the first directions hearing for the s 82 application (the Minute).[46] The Minute sought an interlocutory injunction restraining Mr Morrison Snr from selling or otherwise dealing with the Property pending the determination of the s 82 application.[47]
[46] Second Salleh Affidavit [7] - [8], attachment YS9.
[47] First Salleh Affidavit, attachment YS2 (9 - 10).
The same settlement agent, Seacrest Settlements, acted for both Mr Morrison Snr as vendor and Mr Morrison Jnr as purchaser.
On 3 August 2021, Mr Morrison Jnr sent an email to Seacrest Settlements which stated, 'We are hoping to get the settlement done this Friday [6 August 2021] or sooner if possible … I would [like] the settlement done ASAP'.[48]
[48] Bishop Affidavit [11], attachment ERB5.
On 4 August 2021, Seacrest Settlements sent an email to Mr Morrison Jnr which confirmed that 'all parties are ready to settle on Friday [6 August 2021]'.[49]
[49] Bishop Affidavit [12], attachment ERB6.
On 5 August 2021, the administration order made on 26 March 2021 in respect of DMC was extended by the Tribunal.[50]
[50] First Salleh Affidavit [4], attachment YS1.
Also on 5 August 2021, the first directions hearing of the Public Trustee's s 82 application was held before the President of the Tribunal. The directions hearing commenced at 11.07 am and concluded at 11.56 am.[51] As noted above, Mr Morrison Snr and Mr Morrison Jnr attended the directions hearing.
[51] First Salleh Affidavit [9], attachment YS2 (6 - 9, 36).
In cross-examination, Mr Morrison Jnr conceded that he knew prior to the hearing on 5 August 2021 that settlement had not occurred, and that settlement was scheduled for Friday 6 August 2021.[52]
[52] ts 32 (4/8/2022).
In cross-examination, Mr Morrison Snr did not expressly concede that he knew prior to the hearing on 5 August 2021 that settlement had not taken place. He did concede that settlement needed to happen in order for the transfer to be given effect.[53]
[53] ts 14 (4/8/2022).
Mr Morrison Snr further conceded that if settlement had taken place his son would have told him. He admitted that prior to the directions hearing his son had not told him that settlement had taken place.[54] The only inference that can be drawn is that on the morning of 5 August 2021 prior to the hearing Mr Morrison Snr knew or at least believed that settlement had not taken place.
[54] ts 16 (4/8/2022).
The certified transcript of the directions hearing indicates that at the hearing:
(a)the President explained the general effect of s 82 of the GA Act to all those in attendance;[55]
[55] First Salleh Affidavit [9], attachment YS2 (8).
(b)the President advised that the purpose of the directions hearing was not to determine the s 82 application but rather to deal with preliminary matters including 'to ensure that nothing can happen to the property, 146 Old Dairy Court, Oakford, until we work out what's going to happen to the transaction';[56]
[56] First Salleh Affidavit, attachment YS2 (9).
(c)the President explained to Mr Morrison Snr that the Public Trustee had proposed an order 'effectively that restrains you from selling or doing anything to that property', and the purpose of such an order was to 'stop anything happening to the property which might jeopardise the Tribunal's ability ultimately to set aside the transaction if it decides that's what should happen';[57]
[57] First Salleh Affidavit, attachment YS2 (9).
(d)the President further explained to Mr Morrison Snr that the order proposed by the Public Trustee was called an interim or interlocutory injunction and that 'An injunction is an order of the Tribunal that prohibits someone from doing something';[58]
[58] First Salleh Affidavit, attachment YS2 (10).
(e)after ensuring that Mr Morrison Snr had a copy of the Minute in front of him, the President directed his attention to the precise terms of the injunction sought and read them out to him. Her Honour then explained that 'the thrust of the order is it would stop you, Mr Morrison [Snr], from doing anything [until] we work out what the answer is to the current application. That might be a while down the track';[59]
[59] First Salleh Affidavit, attachment YS2 (10).
(f)the President stated that the Tribunal had received an email from Mr Morrison Jnr indicating that his father wanted an adjournment of the directions hearing in order to obtain legal advice and asked whether Mr Morrison Jnr had obtained any legal advice;[60]
[60] First Salleh Affidavit, attachment YS2 (9 - 10).
(g)Mr Morrison Jnr advised the President that he and Mr Morrison Snr had not obtained legal advice;[61]
[61] First Salleh Affidavit, attachment YS2 (10).
(h)the President noted that Mr Morrison Snr's request for an adjournment seemed 'like a perfectly reasonable kind of a request, but the Tribunal needs to be assured that nothing is going to happen to the property in the meantime until we get this thing sorted';[62]
[62] First Salleh Affidavit, attachment YS2 (10).
(i)the President explained that there were two options open: '(1) you can agree to the order being made or (2) I can adjourn say until tomorrow or later today. You can go and get a lawyer, but it will be very - it will be a short adjournment to permit you to go and get someone if you want to argue about whether the order should be made.' Her Honour further advised Mr Morrison Snr that there was 'one alternative way, and it's not really very much different to be making an order with which you agree. It's you can undertake - you can tell me - make a solemn promise effectively to the Tribunal that you won't do anything to deal with the property';[63]
[63] First Salleh Affidavit, attachment YS2 (11).
(j)the President explained that it was a matter for Mr Morrison Snr whether he wanted to consider agreeing to the order proposed in the Minute or wanted to get some legal advice about whether the order should be made;[64]
[64] First Salleh Affidavit, attachment YS2 (11).
(k)the President explained to Mr Morrison Snr that if he gave an undertaking it was a promise that he would not 'deal with the property and do any of those things that are set out in order 3' and that if he went ahead and did something 'it's very likely [the lawyer for the Public Trustee] will say to me that I should refer you to the Supreme Court to be punished for contempt, which is a very serious thing, and I'm sure you wouldn't dream of doing anything of the kind';[65]
[65] First Salleh Affidavit, attachment YS2 (11 - 12).
(l)Mr Morrison Snr confirmed to the President that he wished to get some legal advice and Mr Morrison Jnr also advised the President that he would like to get 'further legal advice' in relation to the s 82 application 'before we make comment';[66]
[66] First Salleh Affidavit, attachment YS2 (12 - 13).
(m)the President advised Mr Morrison Snr that 'Just as a matter of precaution, I think something needs to happen to ensure that I can be comfortable that nothing is going to be done to this property until you go and get some legal advice. Now, I'm sure you don't have any intention, given the circumstances, of going and doing anything with respect to this property';[67]
[67] First Salleh Affidavit, attachment YS2 (13).
(n)the President then asked Mr Morrison Snr whether he was 'prepared to give a promise to [her], an undertaking, today that you won't deal with this property in the way described in paragraph 3 for say seven days [until] I list the matter for a further hearing next week';[68]
[68] First Salleh Affidavit, attachment YS2 (14).
(o)the President explained that this should give Mr Morrison Snr more time to obtain legal advice and prepare and that the further hearing would deal with whether an injunction should be granted into the future until such time as the s 82 application was answered;[69]
[69] First Salleh Affidavit, attachment YS2 (14).
(p)Mr Morrison Snr confirmed that he was prepared to give such an undertaking;[70]
[70] First Salleh Affidavit, attachment YS2 (14).
(q)after Mr Morrison Snr confirmed that he was prepared to give the Undertaking, the President stated: [71]
[71] First Salleh Affidavit, attachment YS2 (14).
[So] we're all very clear about it. Let me say again. As I explained a moment ago, it's a serious promise that you're making to me when I record this undertaking and receive it from you. It's a serious promise. If you breach it, you deal with that property contrary to the terms of that undertaking, then, no doubt [the Public Trustee's lawyer] will be asking me to refer you for contempt. I'm sure we don't need to worry about that, but you need to be very clear about the serious consequences of the promise
(r)the President then stated that upon Mr Morrison Snr giving the Undertaking the matter would be adjourned to 10.30 am on 12 August 2021 for the hearing of the Public Trustee's application for an interlocutory injunction;[72]
(s)the President then read out the order she was making again slowly so that Mr Morrison Snr was 'very clear';[73]
(t)the President then stated: [74]
What's going to happen is you're not going to do anything to this property between now and then. 10.30 next week, we will come back, and we will be talking about the same sort of thing, which will be the first thing for us to discuss, hopefully when you've had some legal advice or your lawyer will come along, and we will talk about whether I make an order that stops you or you give another undertaking or whether you say nothing should happen at all.
(u)in response, Mr Morrison Snr stated, 'That's fine';[75]
(v)the President made comments at the outset which indicated that her understanding was that Mr Morrison Snr was the owner of the Property;[76] and
(w)at no time during the directions hearing did Mr Morrison Snr or Mr Morrison Jnr mention that they had already entered into a contract for the sale of the Property or that settlement of the sale was due to occur the next day, that is, 6 August 2021.
[72] First Salleh Affidavit, attachment YS2 (15).
[73] First Salleh Affidavit, attachment YS2 (15).
[74] First Salleh Affidavit, attachment YS2 (15).
[75] First Salleh Affidavit, attachment YS2 (15).
[76] First Salleh Affidavit, attachment YS2 (9).
In cross-examination, Mr Morrison Jnr gave evidence that he wanted settlement to go ahead and also stated that he had not given an undertaking. However, he knew for the settlement to go ahead Mr Morrison Snr had to breach the Undertaking.[77]
[77] ts 42 (4/8/2022).
In cross-examination, Mr Morrison Snr conceded that her Honour had not forced him to give the Undertaking.[78]
[78] ts 22 (4/8/2022).
Following the directions hearing, the Tribunal issued a formal order that adjourned the hearing of the Public Trustee's application for an interlocutory injunction to 10.30 am on 12 August 2021 upon Mr Morrison Snr's Undertaking.[79] The Tribunal's order was sent as an attachment to an email to Mr Morrison Jnr's email address. The email was sent at 12.33 pm on 5 August 2021.[80]
[79] First Salleh Affidavit [10], attachment YS3.
[80] Exhibit 5.
By approximately 12.33 pm, both Mr Morrison Snr and Mr Morrison Jnr had orally been advised of the contents of the undertaking and had been advised in writing by the Tribunal of the terms of the Undertaking.
After the directions hearing had concluded on 5 August 2021, Seacrest Settlements:
(a)sent an email to Mr Morrison Snr (at 1.39 pm via Mr Morrison Jnr's email address) attaching a document comprising the seller's settlement statement for the sale of the Property for his approval;[81] and
(b)sent an email to Mr Morrison Jnr (at 1.42 pm) attaching a document comprising the buyer's settlement statement for the sale of the Property 'for tomorrow'.[82]
[81] Bishop Affidavit [13], attachment ERB7.
[82] Bishop Affidavit [14], attachment ERB8.
On the morning of 6 August 2021, Seacrest Settlements:
(a)sent an email to Mr Morrison Jnr (at 7.59 am) attaching a copy of the final buyer's settlement statement for the sale of the Property, which requested. 'Can you please confirm you are happy to proceed';[83]
(b)sent an email to Mr Morrison Snr (at 8.07 am via Mr Morrison Jnr's email address) attaching a document comprising the final seller's settlement statement for the sale of the Property. The email stated that 'To enable settlement to be effected [I] need the seller to sign and return the attached to authorise Seacrest Settlements to proceed today noting the credit to the buyer particularly';[84]
(c)received an email from Mr Morrison Jnr (at 8.10 am) in response her email sent at 7.59 am stating 'Yes proceed';[85]
(d)received an email from Mr Morrison Jnr's email address (at 8.14 am) in response to her email sent to Mr Morrison Snr at 8.07 am stating 'Please proceed' and attaching a copy of the final seller's settlement statement for the Property endorsed with the signature of Mr Morrison Snr underneath the following statement: 'I Robert Noel Morrison authorise Seacrest Settlements to effect settlement today and confirm that the attached statement is correct. I am crediting the buyer with $500,000 and will receive net proceeds today of $647,937.84 in full and final settlement to the account noted above'.[86]
[83] Bishop Affidavit [15], attachment ERB9.
[84] Bishop Affidavit [16], attachment ERB10.
[85] Bishop Affidavit [17], attachment ERB11.
[86] Bishop Affidavit [18], attachment ERB12.
In cross-examination, Mr Morrison Jnr claims that there was nothing he could do to stop settlement proceeding.[87] The terms of the emails make it clear that he could have simply said 'do not proceed'. He could have justified not proceeding by reference to the Undertaking Mr Morrison Snr had given to the Tribunal in his presence.
[87] ts 37 (4/8/2022).
In cross-examination, Mr Morrison Snr conceded that he signed the seller's settlement statement and that by signing the statement he was instructing the settlement agent, Seacrest Settlements, to go ahead with settlement.[88]
[88] ts 20 (4/8/2022).
On 6 August 2021, at around 11.36 am, the transfer form relating to the sale of the Property was lodged with Landgate and settlement of the sale of the Property was completed.[89]
[89] First Salleh Affidavit [13], attachment YS4, attachment YS5.
Neither Mr Morrison Snr nor Mr Morrison Jnr asked Seacrest Settlements not to proceed with the settlement of the sale of the Property, scheduled for 6 August 2021, after the Undertaking was given by Mr Morrison Snr.[90]
[90] Bishop Affidavit [15] - [19]; attachments ERB9 - ERB12. The RNM Affidavit and the RFM Affidavit do not suggest that any such request was made.
In cross-examination, Mr Morrison Jnr stated that he asked for settlement to occur 'ASAP' because he just wanted it 'to be finalised and done'. His evidence as to his attitude at the time was 'just let's get this all finished with, because [of] the mental strain and pressure on everyone'.[91]
[91] ts 34 (4/8/2022).

First Contempt

The affidavits filed by the Morrison Snr and Mr Morrison Jnr raise the issues of:
(1)whether Mr Morrison Snr breached the Undertaking;
(2)whether the terms of the Undertaking were clear and unambiguous and whether Mr Morrison Snr understood them correctly; and
(3)whether Mr Morrison Snr gave the Undertaking under duress.

Whether Mr Morrison Snr breached the Undertaking

The affidavits filed by the Morrisons appear to suggest that Mr Morrison Snr did not breach the Undertaking because at the time he gave the Undertaking he had already 'sold' the Property to Mr Morrison Jnr and 'Nothing was done after the [Tribunal's] order was put in place. It was all done previous to this'.[92]
[92] RNM Affidavit [23] - [24]; see also RFM Affidavit [28].
The Morrisons' submissions are incorrect. As the independent documentary evidence shows, at the time Mr Morrison Snr gave the Undertaking he had only entered into a contract to sell the Property to Mr Morrison Jnr. The sale of the Property had not yet settled, meaning that the legal title to the Property had not yet been transferred from Mr Morrison Snr to Mr Morrison Jnr and Mr Morrison Jnr had not yet paid Mr Morrison Snr for the Property.
The evidence shows beyond reasonable doubt that Mr Morrison Snr was aware that settlement had not yet occurred by 8.14 am on 6 August 2021. Despite the Undertaking, he did not cancel the settlement. To the contrary, in response to a specific written question from Seacrest Settlements whether he wished to proceed with settlement on that date, he instructed her to proceed and provided the signed instruction to Seacrest Settlements to do so.
Thereafter, settlement proceeded and the form effecting the transfer of the Property from Mr Morrison Snr to Mr Morrison Jnr was lodged with Landgate and the relevant funds were transferred to Mr Morrison Snr's nominated account.

Whether the terms of the Undertaking were clear and Mr Morrison Snr understood them

If on its plain reading, objectively construed, an undertaking is clear and unambiguous, a failure to obey it will constitute contempt.[93]
[93] Pang v Bydand Holdings Pty Ltd [52] (Beazley JA).
The terms of the Undertaking were clear and unambiguous.

Whether Mr Morrison Snr gave the Undertaking under duress

The affidavits filed by the Morrisons appear to suggest that Mr Morrison Snr was inappropriately pressured by the President of the Tribunal into giving the Undertaking. Mr Morrison Snr asserts that 'the honourable member was demanding we agreed to something we didn't understand. The honourable member continued to peruse [sic] a comment from me to agree to not selling, lend or borrow against the house … she was not going to let us leave without us agreeing to an order not to sell so I said yes against my better judgement'.[94]
[94] RNM Affidavit [23]; see also RFM Affidavit [27].
The transcript of the directions hearing at which the Undertaking was given establishes that the claim that the President pressured Mr Morrison is baseless. The President did not demand that Mr Morrison Snr give the Undertaking. Her Honour clearly gave him the choice whether or not to provide it after carefully explaining to him its terms and substance. Further, after Mr Morrison Snr agreed to give the Undertaking, her Honour carefully explained its effect again and gave Mr Morrison Snr the opportunity to withdraw his agreement or raise questions or objections. Mr Morrison Snr did not do so. The President responded positively to Mr Morrison Snr's request to adjourn the hearing of the s 82 application so as to enable him to obtain legal advice but explained to him why some form of protection needed to be put in place during the adjournment.

Finding

I am satisfied beyond reasonable doubt that:
(a) an undertaking was given to the Tribunal by Mr Morrison Snr;
(b)the terms of the Undertaking were clear, unambiguous and capable of compliance. The Undertaking given by Mr Morrison Snr was that he would 'not sell, change, transfer, mortgage, or otherwise deal' with the Property. The excuse provided by Mr Morrison Snr for doing so was that the Property had already been sold. However, it is clear that Mr Morrison Snr knew that settlement had not occurred and that transfer took place at settlement. It is clear from his cross-examination that Mr Morrison Snr knew that settlement had not occurred at the time he gave the Undertaking. It is obvious from the transcript that the President went to great lengths to explain the Undertaking and its effect to Mr Morrison Snr. Even without her Honour's explanation the terms of the Undertaking were clear and unambiguous;
(c)the context in which the Undertaking was provided was that it was required to preserve the position for a week while the Morrisons sought legal advice. There was nothing complex about the Undertaking.
(d)Mr Morrison Snr had knowledge of the terms of the Undertaking. The President made clear to Mr Morrison Snr what the terms of the Undertaking were and that there were serious consequences for a breach of the Undertaking. Further, a copy of the Undertaking was emailed to Mr Morrison Jnr's email address by the Tribunal at 12.33 pm on 5 August 2021. I find that Mr Morrison Snr had knowledge of the terms of the Undertaking by reason of giving the undertaking to the Tribunal. I am unable to be satisfied beyond a reasonable doubt that Mr Morrison Snr read the email sent by the Tribunal to Mr Morrison Jnr's email;
(e)Mr Morrison Snr breached the terms of the undertaking by allowing settlement to proceed on 6 August 2021without taking steps to prevent it and by signing the authority to Seacrest Settlements to effect settlement;
(f)Mr Morrison Snr's acts were deliberate and voluntary. He did not have to sign the authority to effect settlement. He chose to do so when he was aware of the terms of the undertaking. He could simply have cancelled the settlement or declined to sign any documentation enabling the settlement agent to proceed. He was aware of the facts that constituted the contempt.
I found Mr Morrison Snr to be an unreliable witness. He repeatedly claimed to have forgotten matters. Given the importance of a matter such as the sale of a property I do not accept that he had forgotten. The fact that he chose not to inform her Honour of the sale of the Property to his son and his claim of duress, which is completely unfounded having regard to the transcript, further undermines his credibility.
Accordingly, I am satisfied beyond reasonable doubt that Mr Morrison Snr committed contempt.
I am also satisfied that Mr Morrison Snr's conduct was a conscious defiance of the Tribunal's authority.

Second Contempt

Neither in his affidavit nor in his oral evidence did Mr Morrison Jnr dispute that he had knowledge of the terms of the Undertaking.
Mr Morrison Jnr knew that settlement of the sale of the Property had not occurred at the time Mr Morrison Snr gave the Undertaking on 5 August 2021. The independent documentary evidence establishes beyond reasonable doubt that he knew settlement had not yet occurred. On 4 August 2021, he requested that Seacrest Settlements effect settlement 'ASAP', to which Seacrest Settlements replied that all parties were ready to proceed on 6 August 2021. He did not, in his capacity as the buyer of the Property, ask Seacrest Settlements not to proceed with settlement in light of the Undertaking similar to Mr Morrison Snr. To the contrary, in response to a specific written question from Seacrest Settlements whether he wished to proceed with settlement on that date, he instructed that settlement proceed. He thereby wilfully engaged in conduct to enable Mr Morrison Snr to complete the sale and transfer of the Property in breach of the Undertaking. Mr Morrison Jnr's conduct was conduct which interfered with the administration of justice.
In addition, Mr Morrison Jnr aided and abetted Mr Morrison Snr's breach of the Undertaking by receiving emails from Seacrest Settlements at his email address and by sending emails to Seacrest Settlements from his email address on behalf of Mr Morrison Snr, including Mr Morrison Snr's authority to proceed, which breached the terms of the Undertaking.
Mr Morrison Jnr ignored the Undertaking because he wanted the settlement to proceed as soon as possible to end the mental strain and pressure on everyone. He was prepared to do whatever it took for settlement to proceed.
I found Mr Morrison Jnr to be an unreliable witness. It is clear that he was prepared to say whatever was necessary to justify his part in Mr Morrison Snr's breach of the Undertaking. He did not take the order of the Tribunal nor the Undertaking given by Mr Morrison Snr seriously.

Conclusion

For the above reasons, I am satisfied beyond reasonable doubt that on 6 August 2021, Mr Morrison Snr contravened the Undertaking in that he:
(a)engaged in acts or conduct to effect or complete the sale or registration at Landgate of the transfer of the Property to Mr Morrison Jnr by signing the authority to Seacrest Settlements to proceed to settlement; and
(b)omitted to engage in acts or conduct to prevent the completion of the sale, or registration at Landgate of the transfer of the Property in that he failed to instruct Seacrest Settlements not to proceed with the settlement in breach of the Undertaking.
Further, I am also satisfied beyond reasonable doubt that on 6 August 2021, Mr Morrison Jnr aided and abetted the contravention of the Undertaking in that he:
(a)engaged in acts or conduct to enable Mr Morrison Snr to effect or complete the sale or registration at Landgate of the transfer of the Property, specifically, by:
(i)emailing Mr Morrison Snr's authority to proceed to Seacrest Settlements; and
(ii)emailing his authority to proceed to Seacrest Settlements; and
(b)omitted to engage in acts or conduct to prevent the completion of the sale or registration at Landgate of the transfer of the Property by failing to inform Seacrest Settlements that Mr Morrison Snr had given the Undertaking.
The acts and omissions of Mr Morrison Snr and Mr Morrison Jnr interfered with the due administration of justice.
I thereby convict Mr Morrison Snr and Mr Morrison Jnr of criminal contempt of court.
I will hear from the parties as to the appropriate penalty to impose.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
2 SEPTEMBER 2022