Briggs v Lunt [No 4] - [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

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 have liberty to apply to discharge the suspension order after reasons for decision are published by Heenan J for his decision on 1 July 2010 lifting the suspension order in the primary proceedings.
4.Time be extended in relation to all past steps the parties to the appeal were required to take under the rules until the date that those steps were taken.
5.The costs of the application be reserved.
The reference to the respondent in par 1 of the order dated 8 July 2010 referred to in par (e) of the schedule to the application is a reference to Mr Lunt. I have concluded that the application should be dismissed because the applicant, Mr Briggs, has not proved that the application, supporting affidavits or minutes of proposed substituted applications have been served. My reasons for this conclusion follow.
The contempt application was filed on 23 December 2010. It was filed as an application in appeal proceedings CACV 60 of 2009. The parties to that appeal were Mr Briggs and New Resource Holdings Pty Ltd as appellants and Mr Lunt as respondent. In that appeal the appellants appealed against judgments entered in favour of Mr Lunt by EM Heenan J. The judgments ordered the appellants to pay money sums and interest to Mr Lunt. The order of 8 July 2010 suspended enforcement of the judgments pending the hearing of the appeal. The appeals by Mr Briggs and New Resource Holdings Pty Ltd were disposed of by orders made on 22 February 2011 and 14 March 2011 and as a result, by its terms, the stay order then ceased to have effect.
The contempt application by Mr Briggs stated that it was an application under the Civil Judgments Enforcement Act 2004 (WA) (the Act). The application stated that the applicant, Mr Briggs, was seeking orders and declarations that:
(1)William Trevor Lunt (the respondent and judgment creditor) be declared a contemnor.
(2)William Trevor Lunt be fined for contempt or imprisoned for contempt or fined and imprisoned for contempt.
(3)William Trevor Lunt pay the first appellant's costs incurred to date, including all reserved costs, on an indemnity basis, to the intent that the first appellant be completely indemnified for its costs excepting only costs unreasonably incurred or of an unreasonable amount and relevant scale limits not apply, to be taxed.
The facts on which the first appellant contends that William Trevor Lunt is in contempt of court are set out in the attached schedule.
The attached schedule read:
It is contended that the respondent William Trevor Lunt is in contempt of court as a result of the following facts.
In relation to 1501 of 2001:
a)On 30 September 2009, in Supreme Court Action CIV 1501 of 2001, the Honourable Justice Heenan made the following order by consent, pursuant to Order 43 rule 16 of the Rules of the Supreme Court:
1.Subject to paragraph 2, the Plaintiff will not be entitled to proceed to enforce the judgments in CIV 1501 or CIV 1974 of 2001 until the judgment in the appeal CACV 60 of 2009 (being the appeal of the decision in CIV 1501 of 2001 and CIV 1974 of 2001) has been handed down.
2.In the event of any application in CACV 60 of 2009 not proceeding with his or its respective appeal within the time limits set down by the Rules or by the Court the Plaintiff will be entitled to apply for the discharge of the suspension order.
3.Costs be reserved.
b)On 19 April 2010 William Trevor Lunt applied for a property (sale and seizure) order ('PSSO') pursuant to section 59 of the Civil Judgment Enforcement Act 2004 ('the CJEA') in CIV 1501 of 2001.
c)The action set out in paragraph (b) is a step taken in enforcement of the judgment in CIV 1501 of 2001 and therefore in breach of paragraph 1 of the orders made on 30 September 2009.
In relation to CACV 60 of 2009:
d)On 1 July 2010, the Honourable Justice Heenan set aside the orders made 30 September 2009.
e)On 8 July 2010, after a hearing at which William Trevor Lunt's solicitor opposed the granting of a further suspension order, the Honourable Justice Pullin of the Court of Appeal made the following orders in CACV 60 of 2009:
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 have liberty to apply to discharge the suspension order after reasons for decision are published by Heenan J for his decision on 1 July 2010 lifting the suspension order in the primary proceedings.
4.Time be extended in relation to all past steps the parties to the appeal were required to take under the rules until the date that those steps were taken.
5.The costs of the application be reserved.
f)On 9 July 2010 in CIV 1501 of 2001 a PSSO issued to William Trevor Lunt.
g)By letter dated 12 July 2010 William Trevor Lunt notified the First Appellant's wife that her home would be sold if the First Appellant should default '… in settlement of Judgment'. The letter enclosed a copy of the PSSO.
h)By letters dated 12 July 2010 William Trevor Lunt notified the First Appellant's daughters that they would be liable to pay any shortfall in the judgment if the First Appellant did not satisfy the judgment and the proceeds from the sale of his home were insufficient to cover the judgment. The letter enclosed a copy of the PSSO.
i)On 13 July 2010 William Trevor Lunt lodged the PSSO against the interest of the First Appellant in Certificate of Title Volume 1881 Folio 326 ('5 Ocean Court').
j)At all relevant times St George Bank was the first registered mortgagee over 5 Ocean Court.
k)By letter dated 2 August 2010 William Trevor Lunt wrote to the First Appellant's wife informing her that he had registered the PSSO against 5 Ocean Court, that the Perth Sheriff is in receipt of all documents for execution in due course, that he had appointed an auctioneer to conduct the sale of 5 Ocean Court, that he had made arrangements for the signs to be placed on or near 5 Ocean Court advising of the proposed auction by the Sheriff.
l)The actions set out in paragraphs (f) to (k) are steps taken in enforcement of the judgment in CIV 1501 of 2001 and therefore in breach of paragraph 1 of the orders made on 8 July 2010.
The application was supported by four affidavits filed on 23 December 2010 by Sam Paonni, Ms Heidi Briggs, Mrs Robin Briggs and Ms Jodie Moss which verified the facts alleged in the schedule.

The applicant's amended applications

On 11 February 2011 the applicant filed a 'Minute of Proposed Substituted Application'. The minute still sought the declaration that Mr Lunt be declared a contemnor and that he be fined for contempt or imprisoned for contempt or fined and imprisoned for contempt and still sought indemnity costs. The schedule was substantially amended, alleging new facts which were said to provide evidence of contempt, which were not referred to in the application dated 23 December 2010.
On 24 March 2011, a second 'Minute of Proposed Substituted Application' was filed. This contained the same schedule, but there was an amendment to par 2 of the orders sought, the effect of which was to seek an order that Mr Lunt be fined for contempt, but not imprisoned.

Evidence concerning service of the application and the minutes

In an affidavit of Sam Peter Paonni sworn 24 March 2011, Mr Paonni, the solicitor for the applicant, deposed in relation to the original application and the four supporting affidavits:
4.On 23 December 2010, I left instructions for the application and the affidavits in support to be filed and served.
(a)The affidavits in support are:
(i)by me sworn 23 December 2010;
(ii)by Jodie Moss;
(ii)by Heidi Briggs; and
(iv)by Robin Briggs.
5.Based on the records on Vincent Partners' file, I believe it to be true that the application and affidavits in support were filed on 23 December 2010 and served on B W Duckham and Co on 4 January 2011 at 11.30 am.
(b)Attached hereto and marked SPP.1 is a copy of the receipt written by and signed by Dianne Dibbs at B W Duckham and Co.
Exhibit SPP.1 was a with compliments slip of Vincent Partners, and handwritten on it appears the words:
This application (form 7) and affidavits of Jodie Louise Moss and Heidi Anne Briggs and Robin Briggs and Sam Peter Paonni were accepted at the offices of B W Duckham and Co by Dianne Dibb on 4/1/2011 @ 11.30 am.
Underneath was a signature which may be that of Dianne Dibb. B W Duckham & Co is the firm which has acted for Mr Lunt in the proceedings before EM Heenan J, which acted for him in relation to proceedings which were brought before Corboy J when, on 15 September 2010, his Honour made an order on the application of Mr Briggs to set aside the PSSO referred to in par (f) of the 23 December 2010 contempt application, and which also appeared as the solicitor on the record in appeal CACV 60 of 2009. There was no evidence that B W Duckham & Co were authorised to accept the application for contempt or the affidavits and no evidence of Dianne Dibbs' authority or whether she was a solicitor or the receptionist at B W Duckham & Co.
The two minutes of proposed substituted application were not served on Mr Lunt or on B W Duckham & Co.

The hearings

The application for contempt was first listed for hearing on 11 February 2011 before Newnes JA. On that day it was adjourned to a date to be fixed to be heard by a judge other than Newnes JA. There was no appearance for Mr Lunt.
Written submissions were filed by Mr Briggs' lawyers on 25 March 2011. On 28 March 2011, a registrar's notice to attend was sent to Mr Briggs' lawyers and B W Duckham & Co, stating that the purpose of the hearing was to consider Mr Briggs' application for a declaration of contempt against Mr Lunt. As mentioned above, B W Duckham & Co had been solicitors on the record for Mr Lunt in CACV 60 of 2009.
The application was then listed for hearing on 30 March 2011. When the matter was called on, counsel for Mr Briggs announced his appearance. Mr Duckham of B W Duckham & Co was at the bar table. The transcript reveals the following interchange (ts 197 ‑ 198):
McGOWAN, MR:     May it please the court, I appear on behalf of the applicant.
PULLIN JA: All right, thank you. Mr Duckham?
DUCKHAM, MR:     Your Honour, I appear by direction of the court but I'm not instructed by the respondent. I can elaborate on that at a later time.
PULLIN JA: When you say 'by direction of the court,' what do you mean?
DUCKHAM, MR:     Your Honour, the prerequisite for these proceedings are two, as I understand; first of all, the service of the order and, second, personal service of the application. To my knowledge, neither of these have been complied with and I have written to the court on two occasions and said, without ‑ ‑ ‑
PULLIN JA: Well, I would be considering that, but let me understand your position. Are you wanting to withdraw now? I'm trying to understand why you say there was direction of the court.
DUCKHAM, MR: No, I'm really in your hands as to ruling. In the absence of complying with order 55 rule 5 subrule (2) I believe there is no proceedings before the court.
PULLIN JA: Well, let me just understand. When you say you are appearing 'by direction of the court,' who gave the direction?
DUCKHAM, MR:     Well, I wrote to the court yesterday and said I did not intend to appear and they said, 'You must appear.'
PULLIN JA:   Who is 'they?'
DUCKHAM, MR:     I haven't got the letter with me but it was from the central office, I believe.
PULLIN JA: Well, the central office isn't the court. So you make your own decision. Do you want to appear or ‑ ‑ ‑
DUCKHAM, MR:     I came here at - I didn't want to be in breach of any professional or ethical requirement so I came here as directed by a communication I received from this court.
PULLIN JA: All right. Anyway, it's not ‑ ‑ ‑
DUCKHAM, MR:     I haven't brought it with me.
PULLIN JA:   Well, for present purposes I am the court, Mr Duckham, so what do you want to do? Do you want to make submissions or do you want to withdraw?
DUCKHAM, MR:    Well, I will make a submission that there is no present proceedings before the court.
PULLIN JA: All right.
DUCKHAM, MR:     But even then it's without instructions.
PULLIN JA: Yes, all right. Well, do you want to stay to hear what happens or do you want to withdraw?
DUCKHAM, MR: I'm happy to withdraw if you are so minded but it may be appropriate before that to make a ruling under order 55 rule 5 in the other matter I want to refer to.
PULLIN JA:     All right.
DUCKHAM, MR: I think professionally I would be better protected if I withdrew.
PULLIN JA: All right. Well, it's up to you, Mr Duckham.
DUCKHAM, MR: I withdraw, sir, but not with any disrespect to the court, I hasten to add.
PULLIN JA: No, no, I understand that.
DUCKHAM, MR: Thank you, sir.
Mr Duckham then withdrew.
The question about whether the contempt application had been served was then addressed by counsel for Mr Briggs. Counsel for Mr Briggs said that the proceeding was pursuant to s 97 and s 98 of the Act and that reg 88 (of the regulations made under the Act) provided how a document may be served. Counsel for Mr Briggs conceded that Mr Lunt had not been personally served under O 72 of the Rules of the Supreme Court 1971 (WA). Mr Briggs' counsel stated that service on B W Duckham & Co was effective service by reason of reg 88(e). The provisions of that regulation are set out below.
Despite questions about whether or not service had been proved, no application was made to adjourn the proceedings in order to personally serve Mr Lunt with the application, the affidavits and the two minutes of proposed amended applications. Submissions were made about the application and the court reserved its decision.
On 14 April 2011, the matter was relisted and an order was made granting Mr Briggs a further 21 days to make further written submissions concerning service. Further written submissions were filed. Once again no request was made to adjourn in order to personally serve Mr Lunt.

Provisions of the Act and rules of court concerning service of contempt applications

Section 121(1) of the Act states that a court referred to in s 5 may make rules of court that provide for any matter that is required or permitted by the Act to be the subject of rules of court or that it is necessary or convenient for giving effect to the purposes of the Act. Section 5 states that the Act applies to, and in respect of, any judgment given by the Supreme Court 'in the exercise of its civil jurisdiction'. I will assume that an order made by the Court of Appeal in the exercise of its appellate jurisdiction fits that description. Section 121(2) states that the rules of court must not be inconsistent with any regulations made under s 119. Rules have been made - see O 46 - but they do not deal with service of applications under s 98 of the Act.
Section 119 authorises the Governor to make regulations and, in particular, regulations about 'the practice and procedure to be followed … when making a request or application' and in 'dealing with a contempt of court committed, under this Act'. Regulations have been made. They are the Civil Judgments Enforcement Regulations 2005 (WA). The regulations do not specify how an application under s 98 should be made, but s 9(2) of the Act provides that 'an application or request that may be made under this Act must be made in accordance with the regulations'. As will appear below, the contempt application is one which may be made under the Act. Regulation 78 states that:
If a document -
(a)is required to … be served … under the Act …
…
by personal service or served personally, or personally given or given personally, it is to be served or given in accordance with Division 2 or 4.
Division 2 contains reg 88, which reads:
88.Service of a document on an individual
A document may be served personally on an individual by -
(a)leaving the document with the individual or, if the individual is a person under a legal disability, with the individual’s parent or guardian; or
(b)if the individual or the individual’s parent or guardian, as the case may be, does not accept the document, putting it down in his or her presence and advising him or her of the nature of the document; or
(c)except in the case of a summons issued under the Act section 29 or 89, leaving the document with a person who is authorised in writing to receive documents on behalf of the individual; or
(d)except in the case of a summons issued under the Act section 29 or 89, leaving the document at the individual’s usual or last known place of residence with a person who is believed, on reasonable grounds, to have reached 18 years of age; or
(e)except in the case of a summons issued under the Act section 29 or 89, leaving the document with a lawyer who is representing the individual and is authorised to accept the document.

Division 4 is not relevant because it concerns service by email or fax.
Order 55 r 2 of the Rules of the Supreme Court reads:
Subject to the [Supreme Court] Act, the power of the Court to punish for contempt of court may be exercised by an order of committal made by a Judge, or judge of appeal, sitting alone.
Order 55 r 4(2) states:
Applications for committal for contempt of court consisting of disobedience to judgments or orders of the Court made by a Judge … may be made by summons to a Judge in chambers.
Order 55 r 5(1) states that:
The … summons … must specify the contempt … and be entitled in the proceeding … with reference to which the contempt is alleged to have been committed.
Order 55 r 5(2) states:
Unless the Court otherwise orders, the notice of motion or summons accompanied by a copy of the affidavit in support of the application must be served personally on the contemnor.
Order 72 is a general provision concerning service of documents relating to any document which 'by virtue of these rules' is required to be served on any person. Order 72 r 1(1) states that in relation to such documents, they 'need not be served personally unless the document is one which by an express provision of these rules … is required to be so served' (which O 55 r 5(2) does require). Order 72 r 2 states that personal service of a document is effected by leaving a copy of the document with the person to be served. Order 72 applies to this court. See r 5 and r 22 of the Supreme Court (Court of Appeal) Rules 2005 (WA).
This review of the rules and the regulations reveals that there is a difference between reg 88 and O 72. Mr Briggs' counsel submitted that reg 88 applied. In the absence of any other submission, my view is that counsel's submission is correct and that reg 88 does apply. Regulation 88(e) relaxes the requirement as specified under O 72 and O 55 r 5(2) for personal service of an application to deal with a person for contempt. In any event, Mr Briggs concedes that the application and affidavits in support have not been served personally on Mr Lunt in the sense of leaving a copy of the document with Mr Lunt. Thus, if reg 88 did not apply, O 72 has not been complied with.
The applicant contends that personal service was effected within the meaning of reg 88(e) by 'leaving the document with a lawyer who is representing the individual and is authorised to accept the document'. The evidence that the applicant said supported this contention appears in an affidavit of Sam Peter Paonni, sworn 25 March 2011. That is hearsay evidence about service. Whether hearsay evidence is permitted or not might depend on whether the application should be regarded as an 'interlocutory proceeding' in appeal CACV 60 of 2009 or as an independent application, even though the application is 'entitled' in CACV 60 of 2009. If the application is interlocutory, then O 37 r 6(2)(c) would permit proof of service by the hearsay evidence in Mr Paonni's affidavit.
Mr Briggs submits that B W Duckham & Co were authorised to accept the contempt application because that firm was on the record as acting for Mr Lunt in that appeal. That would be so if the contempt application were an interlocutory application in appeal CACV 60 of 2009. The questions about the nature of the proceedings and the admissibility of hearsay evidence about service are dealt with below. Before considering those questions, reference is made to other provisions of the Act and to the law governing the present application.

The relevant provisions of the Civil Judgments Enforcement Act 2004

Section 97 of the Act provides that div 2 of pt 5 of the Act applies if a judgment requires or has the effect of requiring a person to not do an act (other than certain acts which are not relevant in this case). Section 98(1) of the Act, which is in div 2 of pt 5, provides that if a natural person disobeys a judgment to which div 2 of pt 5 applies, the person is guilty of a contempt of court. Section 98(4) provides that a person entitled to the benefit of a judgment to which the division applies may request the court to deal with the natural person guilty of contempt under s 98 for the contempt. The reference to a 'judgment' in the sections referred to above, includes an order of a court requiring a person to not do an act: see s 3 definition of 'judgment'. The order of the court of 8 July 2010 is an order of the court of the type referred to in s 97. The applicant, Peter Briggs, is a person entitled to the benefit of that order.
Section 9 of the Act provides that an application that may be made under the Act to a court in relation to a judgment must be made to the court that gave the judgment. This court made the stay order of 8 July 2010. The schedule to the application also alleges noncompliance with an order of EM Heenan J of 30 September 2009 but the Court of Appeal is not authorised by the Act to hear a contempt application alleging noncompliance of an order of the General Division of the Supreme Court.
The Act does not specify what orders a judge of appeal may make. However, O 55 r 4(1) states that an application for contempt of the kind alleged here must be an application for an order for committal of the contemnor to prison.

The nature of proceedings for contempt

Contempt of court (at least criminal contempt) is the only common law offence in Western Australia: see R v Lovelady; Ex parte Attorney General [1982] WAR 65, 66.
It is first necessary to consider whether the allegation levelled against Mr Lunt is an allegation of civil or criminal contempt. If the allegation is that Mr Lunt committed criminal contempt, then although the application was filed in the appeal CACV 60 of 2010 and 'entitled' thus, as required by O 55 r 5(1), it is separate and distinct from those proceedings even though they gave rise to the contempt: O'Shea v O'Shea & Parnell (1890) 15 PD 59, 63 (Cotton LJ). In R v B [1972] WAR 129, Hale J stated that the allegation of criminal contempt in that case stood 'outside the matrimonial cause which was merely the occasion for the offence' (132). See also Viner (Minister of State for Industrial Relations) v Australian Building Construction Employees & Builders' Labourers' Federation (1981) 38 ALR 550, 555 (Northrop J); Gregory v Phillip Morris Ltd (1987) 74 ALR 300, 308; Jeray v Blue Mountains City Council [2011] NSWLEC 28 [83].
The distinction between civil and criminal contempt still exists even though it has been described by the High Court as 'in significant respects, illusory': Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ). See also Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 108.
The 'principal theoretical basis' of the distinction between civil and criminal contempt is that disobedience to the process and orders of the court in civil proceedings is said to be 'a civil wrong, a matter between party and party, enforcement being for the private benefit or interest of the party seeking enforcement, whereas impeding the administration of justice is a public wrong'. However, there is a secondary basis for the distinction. It is that if the main purpose of sanctions for disobedience in civil proceedings is coercive rather than punitive then it will be civil contempt; if the purpose is punitive, then it will be criminal contempt: Mudginberri (106). The 'secondary basis' for the distinction may involve determining whether there was 'contumacious' disobedience, in which case there will have been criminal contempt, or only 'wilful' disobedience, in which case there will have been civil contempt: Mudginberri (108); Witham v Holloway (530); Street v Hearne [2007] NSWCA 113; (2007) NSWLR 231 [37] ‑ [40].
The majority in Mudginberri acknowledged at (108) that 'very great difficulty' is to be experienced in maintaining the distinction between civil and criminal contempts and in elaborating the 'precise and certain criterion' which divides one class of contempt from the other. Nevertheless, the distinction remains and is important for certain purposes (eg in relation to the question about whether there is a right of appeal without leave from the decision on the contempt application: R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59).
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'.
The High Court in Doyle added, at (517):
Consistently with this principle, the courts have insisted on the importance of personal service of a notice of motion for committal - indeed, so strictly has the requirement been enforced that it has been held that service could not be dispensed with although counsel undertook to appear for the defendant or appeared on behalf of the defendant to object to the motion proceeding. (citations omitted)
The requirement for personal service is more easily satisfied by reason of reg 88(e) but service pursuant to that regulation has not been proved. The result is that the application must be dismissed because of the failure to prove service of the application on Mr Lunt. Because this is a criminal proceeding which fails in limine because of lack of service, it is not appropriate to go on to make provisional findings which might have been made had the application been properly served. If the application had been properly served, Mr Lunt would have been entitled to appear and make submissions. The application is dismissed.