Briggs v Lunt [No 4]

Case [2011] WASCA 145


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BRIGGS -v- LUNT [No 4] [2011] WASCA 145

CORAM:   PULLIN JA

HEARD:   30 MARCH 2011

DELIVERED          :   1 JULY 2011

FILE NO/S:   CACV 60 of 2009

BETWEEN:   PETER BRIGGS

Applicant

AND

WILLIAM TREVOR LUNT
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :EM HEENAN J

Citation  :LUNT -v- BRIGGS [2009] WASC 134

File No  :CIV 1501 of 2001, CIV 1974 of 2001

Catchwords:

Contempt of court - Requirement that application be served personally - Service on solicitor acting for alleged contemnor in appeal proceedings - Whether alleged contemnor breached a stay order - Whether civil or criminal contempt alleged - Whether if criminal contempt the application to commit is an interlocutory application in the appeal - Whether hearsay evidence admissible

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 9, s 97, s 98
Civil Judgments Enforcement Regulations 2005 (WA), r 78, r 88
Rules of the Supreme Court 1971 (WA), O 46, O 72

Result:

Application dismissed

Category:    A

Representation:

Counsel:

Applicant:     Mr P G McGowan

Respondent:     No appearance

Solicitors:

Applicant:     Vincent Partners

Respondent:     No appearance

Case(s) referred to in judgment(s):

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98

Consolidated Press Ltd v McRae (1955) 93 CLR 325

Doyle v The Commonwealth (1985) 156 CLR 510

Gregory v Phillip Morris Ltd (1987) 74 ALR 300

Jeray v Blue Mountains City Council [2011] NSWLEC 28

Lunt v Briggs [No 4] 2010 WASC 380

Microsoft Corporation v Marks (1996) 139 ALR 99

O'Shea v O'Shea & Parnell (1890) 15 PD 59

R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59

R v B [1972] WAR 129

R v Lovelady; Ex parte Attorney General [1982] WAR 65

Re Heritage Innes Australia Pty Ltd (in liq) v Newman (Unreported, WASC, Library No 980490, 2 September 1998)

Street v Hearne [2007] NSWCA 113; (2007) NSWLR 231

Viner (Minister of State for Industrial Relations) v Australian Building Construction Employees & Builders' Labourers' Federation (1981) 38 ALR 550

Witham v Holloway (1995) 183 CLR 525

  1. PULLIN JA:  Peter Briggs has applied for an order that William Trevor Lunt be punished for contempt of court in disobeying a stay order made by this court on 8 July 2010 in appeal CACV 60 of 2009.  The 8 July 2010 order read:

    1.Subject to order 2, the respondent will not be entitled to proceed to enforce the judgments in CIV 1501 of 2001 or CIV 1974 of 2001 until the judgement in appeal CACV 60 of 2009 has been handed down.

    2.In the event that an appellant in CACV 60 of 2009 does not proceed with the appeal within the time limits set down in the rules or by the court, the respondent will be entitled to a discharge of the suspension order.

    3.Either party will…

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Briggs v Lunt [No 4] [2011] WASCA 145
Case
[2011] WASCA 145
Decision Date

CaseChat Overview and Summary

Briggs v Lunt [No 4] concerned an application for contempt brought by Briggs against Lunt. Briggs alleged that Lunt had breached a stay order made in earlier proceedings. Lunt had argued that the application was not properly served and that the evidence was inadmissible. The court had to determine the nature of the contempt application, the method of service of the application, and the admissibility of the evidence. The court held that the purpose of the application was punitive and not remedial, meaning it was an application for criminal contempt. This meant that the application was not an interlocutory application in the appeal and the service of the application was not properly done as it was not served personally on Lunt. The court also held that the hearsay evidence was inadmissible as it did not comply with the rules of evidence.

The court held that the purpose of the application was punitive and not remedial. This meant that the application was for criminal contempt and not civil. The court referred to the distinction between criminal and civil contempt, stating that the object of the application must be determined objectively. The court held that the object of the present application was punitive, and not remedial, as Briggs did not make the application to bring about compliance with the stay order or to prevent Lunt proceeding with execution via the PSSO order. The court held that the application was not an interlocutory application in the appeal and the service of the application was not properly done as it was not served personally on Lunt. The court held that the hearsay evidence was inadmissible as it did not comply with the rules of evidence. The court held that the hearsay evidence in the affidavit of Mr Paonni about service was not admissible as it did not comply with the rules of evidence. The court held that the firm B W Duckham & Co could not accept service of the contempt application as they were not authorised to do so. The court held that there was no proof that the firm had instructions to accept service of the contempt application.

Orders

Orders of the court

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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

In Microsoft Corporation v Marks (1996) 139 ALR 99, Beaumont J referred to the distinction between criminal and civil contempt. In accordance with Mudginberri, he acknowledged that when the application related to noncompliance with an order, the question was whether the object of the application was remedial (that is, to bring about compliance with the order) or punitive (115). If the object was remedial, then it was a civil contempt, but if the object of the contempt application was punitive, then it was criminal. The 'object' of the application must be determined objectively: Witham v Holloway (533); Street v Hearne [54]. In this case, viewed objectively, the purpose of the present application for contempt was punitive. Mr Briggs did not make the contempt application to bring about compliance with the stay order made on 8 July 2010 or to prevent Mr Lunt proceeding with execution via the PSSO order. By the time the contempt application was filed on 23 December 2010, the PSSO order had been set aside by Corboy J on 15 September 2010: see Lunt v Briggs [No 4] 2010 WASC 380. Further, by the time the contempt application came on for hearing on 30 March 2011, the order of 8 July 2010 had ceased to have effect because Mr Briggs' appeal had been disposed of by formal orders made on 22 February 2011 and 14 March 2011. The objective purpose of the application was solely to punish Mr Lunt. This conclusion is fortified by the written submissions filed on behalf of Mr Briggs on 25 March 2011, where he submits that Mr Lunt should be 'fined for [the] contumelious behaviour' of Mr Lunt. On a motion for committal which is not in the face of the court, the facts are usually placed before the court upon affidavit: R v Lovelady (66, 69) but proof of contempt must be proof beyond reasonable doubt: Witham v Holloway (534) and proof must be by admissible evidence: Consolidated Press Ltd v McRae (1955) 93 CLR 325, 333. As a result of the conclusion that the purpose of the contempt application was and is to punish Mr Lunt for criminal contempt, the application is not an interlocutory application in the appeal. As a result, the hearsay in the affidavit of Mr Paonni about service is not admissible under O 37: see Re Heritage Innes Australia Pty Ltd (in liq) v Newman (Unreported, WASC, Library No 980490, 2 September 1998) (Murray J). In addition, just because B W Duckham & Co were on the record in the appeal did not authorise B W Duckham & Co to accept service of the application. As a result, there is no proof that the firm had instructions to accept service of the contempt application. It is surprising that no attempt was made to personally serve the documents on Mr Lunt, particularly after Mr Duckham announced that he had no instructions. However, that is the course chosen by Mr Briggs. Service of process is always important, especially in the case of alleged contempt. In Doyle v The Commonwealth (1985) 156 CLR 510, 516 the High Court referred to the principle of law that no person ought to be punished for contempt of court unless a specific charge against him be distinctly stated and an opportunity of answering it be given to him. The High Court, quoting other authority, said that the principle must be 'rigorously insisted upon'.