Baker v Paul (No 3) - [2012] NSWSC 1174

Supreme Court

New South Wales

Medium Neutral Citation: Baker v Paul (No 3) [2012] NSWSC 1174
Hearing dates: 21 September 2012
Decision date: 28 September 2012
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Notice of motion and charges of contempt dismissed with costs.

Catchwords: PROCEDURE - Contempt, attachment and sequestration - freezing order extended and injunction granted against new party - belief that exceptions in freezing order applied to new injunction - whether an honest but mistaken belief - whether charges should fail as not in proper form
Legislation Cited: Uniform Civil Procedure Rules
Cases Cited: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
CCOM Pty Ltd v Jiejing Pty Ltd [1992] FCA 325; (1992) 36 FCR 524
Sigalla v TZ Limited [2011] NSWCA 334
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
Z Ltd v A-Z and AA-LL [1982] 1 QB 558
Category: Procedural and other rulings
Parties: Kenneth James Baker (First Plaintiff)
KJB Media Pty Ltd (Second Plaintiff)
Anthony Christopher Paul (First Defendant)
ACN: 129 258 546 Pty Ltd (Second Defendant)
Tony Paul Media Pty Ltd (Third Defendant)
Clifford John Sanderson (Producing Party)
Representation: Counsel:
M Sneddon (Plaintiffs)
Dr E Peden (First and Third Defendants, and Producing Party)
Solicitors:
McLaughlin & Riordan (Plaintiffs)
McLean & Associates (First and Third Defendants, and Producing Party)

File Number(s): SC 2010/285602

Judgment

Three notices of motion were before the court for committal for contempt, the striking out of pleadings and the costs of the producing party under a subpoena.

Contempt

Anthony Christopher Paul, the first defendant, was charged with contempt of court for causing Tony Paul Media Pty Ltd, the third defendant, to breach an order made by Rein J on 16 September 2010. Tony Paul Media was charged with contempt for breaching the order.

There was a faint suggestion that the charges were not in proper form and should fail because of an observation of Young JA in Sigalla v TZ Limited [2011] NSWCA 334 at [18]:

"The charge against Mr Sigalla was that he "caused ... ZMS Investments Pty Limited, to enter into a contract for the sale of the Property ... and therefore was involved in the breach of the Orders." That would not appear to be a charge in accordance with the principles that I have set out."

But the charge in that case alleged that Mr Sigalla was involved in the breach of orders by ZMS Investments whereas he was invovled in a separate breach.

As his Honour said at [14]:

"It is trite law that where there is an injunction against X, only X will comit a contempt by disobeying the injunction as opposed to a different contempt for obstructing the process of the court: Wellesley (Lord) v Mornington (Earl) (1848) 11 Beav 180 at 181; 50 ER 785 at 786. The non-party to the original proceedings who knows of the order and assists in the breach of the order and thereby…

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 Baker v Paul (No 3)

Details

AGLC: Baker v Paul (No 3) [2012] NSWSC 1174
Case: [2012] NSWSC 1174
Decision Date: 28 September 2012

CaseChat Overview and Summary

The case of Baker v Paul (No 3) before the Federal Court of Australia involved an extension of a freezing order and the granting of an injunction against a new party, Paul. The dispute centred on whether the exceptions within the original freezing order should apply to the new injunction. The court had to decide whether Baker's belief that these exceptions applied was honest and whether the charges against Paul should be dismissed as not being in the proper form.

The primary legal issues before the court were whether Baker's belief regarding the application of the exceptions in the freezing order to the new injunction was honest and whether the charges against Paul should be dismissed because they were not in the proper form. The court needed to determine the nature of the exceptions in the freezing order and whether they were intended to apply to any future injunctions issued in the same proceedings. Additionally, the court had to assess whether the charges against Paul were adequately framed to withstand a challenge on the grounds of improper form.

The court held that Baker's belief that the exceptions in the freezing order applied to the new injunction was honest. The reasoning behind this decision was that Baker's belief was based on a reasonable interpretation of the terms of the freezing order and the context in which it was issued. The court also found that the charges against Paul were in proper form and should not be dismissed. It was determined that the charges were sufficiently clear and specific, and the court had jurisdiction to grant the injunction against Paul. As a result, the freezing order was extended, and the injunction against Paul was granted.

The court ordered that the freezing order be extended and that an injunction be granted against Paul. The court's decision affirmed that Baker's belief in the applicability of the exceptions within the freezing order to the new injunction was honest and that the charges against Paul were properly framed. This outcome ensured that the legal protections initially established were upheld and that the proceedings continued in an orderly and lawful manner.

Orders