Barkley v Barkley-Brown

[2010] NSWSC 747

CITATION:	Barkley v Barkley-Brown [2010] NSWSC 747
HEARING DATE(S):	5 and 6 July 2010
JUDGMENT OF:	Ball J
EX TEMPORE JUDGMENT DATE:	6 July 2010
DECISION:	Application that first espondent to contempt motion had no case to answer dismissed.
CATCHWORDS:	CONTEMPT - charge of contempt based on a failure to comply with a court order does not depend on establishing that the court was actually misled
CATEGORY:	Procedural and other rulings
CASES CITED:	Ditford v Brown (1990) 19 NSWLR 49
PARTIES:	Paul Barkley (First Plaintiff) John Hawkins (Second Plaintiff) Vicki Barkley-Brown (Defendant/Applicant) Lawrence Nelson (First Respondent) Paul Henshaw (Second Respondent)
FILE NUMBER(S):	SC 2010/257461
COUNSEL:	Ms E Cohen (Defendant/Applicant) Ms E Picker (Defendant//Applicant) Mr V Gray (Respondents)
SOLICITORS:	Peter Dawson & Associates (Defendant/Applicant) Marsdens (Respondents)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

6 JULY 2010

2007/257461 PAUL BARKLEY & ANOR v VICKI BARKLEY-BROWN

EX TEMPORE JUDGMENT

1 This is an application that the first respondent, Lawrence Nelson, be punished for contempt. Before dealing with the application itself and the particular issue with which I am currently concerned, I should say something about the substantive proceedings.

2 The defendant, who is the applicant on the motion, is the niece of Rhonda Brenda Farrell who died in December 2005. The deceased essentially left 40% of her estate to the applicant and 20% to each of the applicant's three children. The deceased appointed the applicant and Reverend John Hawkins as her executors. The first respondent acted as the deceased's accountant for a period of time. Reverend Hawkins and the applicant's eldest son commenced proceedings against the applicant alleging that the applicant was liable to account to the deceased's estate for money that the applicant had withdrawn from the deceased's bank account while she was alive. Ward J found in the plaintiff's favour.

3 During the course of the substantive proceedings the applicant served a number of subpoenas seeking accounting records relating to the deceased's affairs. The first subpoena which was addressed to the first respondent was filed on 14 November 2008. That subpoena was served on 24 November 2008. The subpoena sought a broad range of financial records. In response to the subpoena the first respondent wrote to the court stating that:

“I hold no documents referred to in schedule 1 of the subpoena.”

4 The second subpoena which was also addressed to the first respondent was issued on 13 August 2009. That subpoena was served on 16 August 2009. It sought all documents relating to the deceased. On 17 August 2009 the respondent wrote to the court saying:

“I hold in my possession no documents or records relating to Rhonda Brenda Farrell deceased."

5 The third subpoena was filed on 2 September 2009. It was addressed to "Paul Nelson of Nelson Business Consultants". It sought:

“All documents or records in your possession or previously in the possession of Mr Lawrence Nelson relating to Rhonda Brenda Farrell.”

A substantial number of documents were produced in answer to that subpoena. It does not appear to be disputed that Mr Paul Nelson is the first respondent's son and that he took over the accounting business previously conducted by his father.

6 The applicant asserts that I should infer from the production of the documents in response to the third subpoena that those documents were in the possession or control of the first respondent at the time the first subpoena was served or at the time the second subpoena was served. Before making an election whether to lead any evidence, Mr Gray submits that the applicant cannot succeed. He submits that, in order to establish a contempt, the applicant must prove, first, that the failure of the first respondent to produce the documents to the court (assuming that there was one) caused the court to be misled to the detriment of the administration of justice and the prejudice of the applicant and, second, that the documents not produced do not remain intact. In support of those propositions Mr Gray relies on the decision of the Court of Appeal in Ditford v Brown (1990) 19 NSWLR 49 and, in particular, the judgment of Samuels AP in that case.

7 I do not accept Mr Gray's submission. In Ditford, subpoenas were served on, among others, the Department of Foreign Affairs and the Director of Public Prosecutions seeking documents concerning an extradition application. The solicitor for the Department of Foreign Affairs appeared on the return of the subpoena and answered the call by saying that no documents were produced. The subpoena to the DPP was not called on. However, a solicitor employed by the DPP was in court. It was alleged that he was in contempt because he was aware from documents that he had that the response made on behalf of the Department of Foreign Affairs was false, but that he “did allow, suffer and cause the court to be misled to the detriment and prejudice of the claimant and was thereby misfeasant of his duties to the court."

8 It is important to observe that the charge in Ditford was not that the respondent in that case had failed to produce documents in response to a subpoena. Rather, the charge was that the respondent had failed to correct a misleading statement by another solicitor in court. The Court of Appeal held that that charge was not made out. One reason given by Samuels AP (with which Kirby ACJ agreed, in part, and Priestley JA agreed) was that an essential element of the charge was that, as a consequence of the respondent's silence, the court was persuaded that there were no documents in the possession of the Department of Foreign Affairs and proceeded on that basis. Samuels AP held that that element could not be made out because the court ultimately was not misled by the respondent's silence and the documents remained intact.

9 The charge in this case is quite different. It is that the first respondent failed to comply with a subpoena. A number of elements must be made out to prove that charge. In particular, it must be proved that the first respondent had in his possession or control documents in response to the subpoena. In practice, it is also necessary to prove that the failure to produce the documents was wilful. The essential nature of the contempt is a wilful disobedience of an order of the court without a reasonable excuse. A charge of that type does not depend on establishing that the court was actually misled.

10 For those reasons I am not prepared to dismiss the charge on the ground contended for by Mr Gray.

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