Australian Securities Commission v MacLeod - [1993] FCA 132

Re: AUSTRALIAN SECURITIES COMMISSION
And: ROBERT JAMES MACLEOD; TRAINEX PTY. LTD.; STARLIGHT FILM STUDIOS LTD.;
STARLIGHT PICTURES PTY. LTD. and STAR PARTNERS PTY. LTD.
No. Q G3011 of 1992
FED No. 132
Number of pages - 31
Contempt - Federal Court

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Drummond J.(1)

CATCHWORDS

Contempt - Federal Court - deliberate defiance of order

Federal Court - O. 37, r. 2(5) of the Federal Court Rules - discretion to order committal for breach of orders where endorsed copies of orders not served as required by O. 37, r. 2(1) and (3)

Words and Phrases - "forthwith" - meaning - appropriateness of use in orders fixing time for performance of act

Companies (Queensland) Code - ss. 573, 574

Corporations Law - ss. 1323, 1324

Federal Court Rules - O. 35, r. 4; O. 37, r. 2

Australian Meat Industry Employee's Union v Mudginberri Station Pty. Ltd. (1986) 161 CLR 98

D.W. Murray v Quan Sing (1901) 11 WALR 115

Freeman v Trimble (1906) 6 SR (N.S.W.) 133

Gilbert v Endean (1878) 9 Ch D 259

Hillingdon London Borough Council v Cutler (1968) 1 QB 124

Sofroniou v Szgetti (1991) FCR 332

Thomas v Nokes (1868) LR 6 Eq 521

HEARING

BRISBANE, 15, 16 and 24 February 1993

#DATE 4:3:1993

Counsel for the applicant: Ms E.M. O'Reilly

Solicitors for the applicant: Australian Securities Commission

Counsel for the respondents: Mr R.I.M. Lilley

Solicitors for the respondents: John M. O'Connor and Co.

ORDER

THE COURT ORDERS THAT:

1. The Notice of Motion is dismissed in relation to the charges

of contempt for the breach of the orders set out in paragraph (a) of the Notice of Motion insofar as the charge relates to the order of:

(i) Heerey J of 29 June, 1992; and

(ii) Spender J of 3 July, 1992.

2. The first respondent is guilty of contempt in that in breach

of the order of Spender J of 3 July, 1992 as varied by Cooper J on 21 July, 1992, that he furnish to the receivers by 23 July, 1992 a list containing the information specified in paragraph (a)(i) of the Notice of Motion, in that he failed, and continues to fail, to disclose his interest in property described as Allotment 163 of Portion of Section 1595 Hundred of Yatala in the area named Redwood Park (L.T.R.O. Deposited Plan No. 18023) being all that land described in South Australia Register Book Volume 4270 Folio 184.

3. The first respondent is guilty of contempt in that in breach

of the order of Spender J of 3 July, 1992 as varied by Cooper J on 21 July, 1992 that the first respondent by himself, his servants or agents, be restrained from "disposing of, encumbering, taking any steps to dispose of or encumber, or dealing in any manner whatsoever with, any or all property of the respondents", he did transfer to Margaret Rae Wilkie by a memorandum of transfer dated 27 June, 1992 but…

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: [1993] FCA 132
Decision Date: 04 MARCH 1993

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Securities Commission brought proceedings against MacLeod, as well as other respondents, concerning allegations of contempt related to breaches of specific court orders. The primary focus of the case was whether MacLeod had deliberately disobeyed certain court directives, specifically those related to property disclosure and dealing restrictions. The court examined whether MacLeod's actions constituted contempt of court, thereby warranting punitive measures.

The central legal issue before the court was whether MacLeod's failure to comply with specific court orders amounted to contempt. The court had to determine if the breaches of the orders were deliberate and whether these actions warranted a finding of contempt. The orders in question involved both the disclosure of property interests and restrictions on disposing of or dealing with specified assets. The court needed to assess if MacLeod's actions demonstrated a clear disregard for these judicial directives.

In delivering the judgment, the court found that MacLeod had indeed breached the orders, thereby committing acts of contempt. Specifically, MacLeod failed to disclose his interest in certain property, which was a direct violation of the court's orders. Furthermore, MacLeod had transferred property despite being explicitly restrained from doing so. The court concluded that these actions were deliberate and amounted to contempt. However, the court dismissed the charges related to other breaches, as they did not meet the threshold for contempt.

The court ordered that MacLeod was guilty of contempt for failing to disclose his interest in specified property and for transferring that property in violation of the court's orders. The court also found that MacLeod's actions regarding a cheque constituted contempt. However, the charges related to other breaches were dismissed. The judgment emphasised the importance of adhering to court orders and the consequences of failing to do so.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Notice of Motion is dismissed in relation to the charges

of contempt for the breach of the orders set out in paragraph (a) of the Notice of Motion insofar as the charge relates to the order of:

(i) Heerey J of 29 June, 1992; and

(ii) Spender J of 3 July, 1992.

2. The first respondent is guilty of contempt in that in breach

of the order of Spender J of 3 July, 1992 as varied by Cooper J on 21 July, 1992, that he furnish to the receivers by 23 July, 1992 a list containing the information specified in paragraph (a)(i) of the Notice of Motion, in that he failed, and continues to fail, to disclose his interest in property described as Allotment 163 of Portion of Section 1595 Hundred of Yatala in the area named Redwood Park (L.T.R.O. Deposited Plan No. 18023) being all that land described in South Australia Register Book Volume 4270 Folio 184.

3. The first respondent is guilty of contempt in that in breach

of the order of Spender J of 3 July, 1992 as varied by Cooper J on 21 July, 1992 that the first respondent by himself, his servants or agents, be restrained from "disposing of, encumbering, taking any steps to dispose of or encumber, or dealing in any manner whatsoever with, any or all property of the respondents", he did transfer to Margaret Rae Wilkie by a memorandum of transfer dated 27 June, 1992 but executed on 10 July, 1992 his property described as Allotment 163 of Portion of Section 1595 Hundred of Yatala in the area named Redwood Park (L.T.R.O. Deposited Plan No. 18023) being all that land described in South Australia Register Book Volume 4270 Folio 184, that transfer being registered on 15 July, 1992.

4. The first respondent is guilty of contempt in that in breach

of the order of Spender J of 3 July, 1992 as varied by Cooper J on 21 July, 1992 that the first respondent by himself, his servants or agents, be restrained from "disposing of, encumbering, taking any steps to dispose of or encumber, or dealing in any manner whatsoever with, any or all property of the respondents", he, on or about 21 September, 1992, dealt with the property of the third respondent, namely, an ANZ cheque dated 18 September, 1992 and drawn on account number 5981 99519 in the name "S.A. Carroll" being cheque number 862397 in the sum of $7,200.00 payable to the third respondent and posted to the third respondent at its Sydney office by obtaining possession of that cheque and asking Joseph Leo Carroll to endorse that cheque to the first respondent personally, and by returning that cheque to Joseph Leo Carroll on the latter's refusal of that request.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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