Buckby v Wharton - [2012] QSC 416

SUPREME COURT OF QUEENSLAND

CITATION:

Buckby & Anor v Wharton & Anor [2012] QSC 416

PARTIES:

RICHARD WILLIAM BUCKBY and ROBERT WILLIAM HUTSON
(applicants)
v
JOHN MACARTHUR WHARTON and ELIZABETH MARY WHARTON
(respondents)

FILE NO:

BS3760 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application for punishment for contempt

DELIVERED ON:

20 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

6,7 and 10 December 2012

JUDGE:

Mullins J

ORDER:

1. It is declared that John Macarthur Wharton committed contempt by failing to comply with the order of P Lyons J made on 4 May 2012 in this proceeding, as particularised in charges 2, 3 and 4 in the second further amended application filed on 13 December 2012.
2. John Macarthur Wharton is fined $5,000 for the contempt.

3. The fine is to be paid within three months of the date of this order and, in default of payment within that time, the non-payment of the fine must be referred by the Sheriff to SPER (State Penalties Enforcement Registry).

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – WHAT CONSTITUTES – DISOBEDIENCE OF ORDERS OF COURT – where the mortgagee of the respondent’s grazing properties and livestock appointed receivers and managers to the secured property and livestock – where the receivers attempted to remove livestock, but were stopped by the respondent – where the receivers obtained a court order restraining the respondent from interfering with the receivers’ use, entitlement to and possession of the secured properties and livestock – where the order included a notice that if the respondent did not obey the order he would be liable for contempt – where the receivers directed the respondent to vacate the property on which the respondent resided by a specified date – where the respondent engaged security guards to prevent the receivers from entering the secured properties – whether the respondent knew that the conduct in preventing the receivers from entering and taking possession of the secured properties and livestock was in contempt of the court order

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – IN GENERAL – whether the court should exercise the discretion not to punish for contempt – where personal deterrence is not required – where general deterrence is required – what punishment is appropriate for the contempt and the circumstances of the contemnor

Uniform Civil Procedures Rules 1999, r 930

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, considered
Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115, considered
Lade v Co Pty Ltd v Black [2006] 2 Qd R 531, followed
In re Mileage Conference Group of the Tyre Manufacturers’ Conference Ltd’s Agreement [1966] 1 WLR 1137, considered
Paroz v Paroz [2010] QSC 488, considered

COUNSEL:

B D O’Donnell QC and D de Jersey for the applicants
D G Clothier SC and S Webster for the respondent
John Macarthur Wharton

SOLICITORS:

Gadens Lawyers for the applicants
Levitt Robinson for…

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 Buckby v Wharton

Details

AGLC: Buckby & Anor v Wharton & Anor [2012] QSC 416
Case: [2012] QSC 416
Decision Date: 20 December 2012

CaseChat Overview and Summary

In the matter of Buckby v Wharton, the High Court of Australia was tasked with determining whether the respondent, John Macarthur Wharton, had committed contempt of court by obstructing the receivers from removing livestock and entering secured properties. The mortgagee had appointed receivers to manage the respondent's grazing properties and livestock, and had obtained a court order prohibiting the respondent from interfering with the receivers. Despite this, the respondent engaged security guards to prevent the receivers from entering the properties, leading to the contempt proceedings.

The primary legal issue before the court was whether the respondent's actions constituted contempt of court, given that he had been served with the court order and was thus aware of his obligations. The court considered whether the respondent's conduct, in preventing the receivers from entering and taking possession of the secured properties and livestock, was deliberate and in disobedience of the court's order. The court also deliberated on the appropriate punishment for the contempt, considering the need for both personal and general deterrence, and the circumstances of the contemnor.

In its judgment, the court found that the respondent had indeed committed contempt by failing to comply with the court order. The court held that the respondent's actions were deliberate and intended to obstruct the receivers, thereby disobeying the clear terms of the court's order. The court further determined that the punishment should serve both to deter the respondent personally and to maintain the authority of the court in general. As a result, the court imposed a fine of $5,000 on the respondent, to be paid within three months, with the condition that non-payment would be referred to the State Penalties Enforcement Registry.

Orders

Orders of the court

1. It is declared that John Macarthur Wharton committed contempt by failing to comply with the order of P Lyons J made on 4 May 2012 in this proceeding, as particularised in charges 2, 3 and 4 in the second further amended application filed on 13 December 2012.

2. John Macarthur Wharton is fined $5,000 for the contempt.

3. The fine is to be paid within three months of the date of this order and, in default of payment within that time, the non-payment of the fine must be referred by the Sheriff to SPER (State Penalties Enforcement Registry).

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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CITATION:	Buckby & Anor v Wharton & Anor [2012] QSC 416
PARTIES:	RICHARD WILLIAM BUCKBY and ROBERT WILLIAM HUTSON (applicants) v JOHN MACARTHUR WHARTON and ELIZABETH MARY WHARTON (respondents)
FILE NO:	BS3760 of 2012
DIVISION:	Trial Division
PROCEEDING:	Application for punishment for contempt
DELIVERED ON:	20 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	6,7 and 10 December 2012
JUDGE:	Mullins J
ORDER:	1. It is declared that John Macarthur Wharton committed contempt by failing to comply with the order of P Lyons J made on 4 May 2012 in this proceeding, as particularised in charges 2, 3 and 4 in the second further amended application filed on 13 December 2012. 2. John Macarthur Wharton is fined $5,000 for the contempt. 3. The fine is to be paid within three months of the date of this order and, in default of payment within that time, the non-payment of the fine must be referred by the Sheriff to SPER (State Penalties Enforcement Registry).
CATCHWORDS:	PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – WHAT CONSTITUTES – DISOBEDIENCE OF ORDERS OF COURT – where the mortgagee of the respondent’s grazing properties and livestock appointed receivers and managers to the secured property and livestock – where the receivers attempted to remove livestock, but were stopped by the respondent – where the receivers obtained a court order restraining the respondent from interfering with the receivers’ use, entitlement to and possession of the secured properties and livestock – where the order included a notice that if the respondent did not obey the order he would be liable for contempt – where the receivers directed the respondent to vacate the property on which the respondent resided by a specified date – where the respondent engaged security guards to prevent the receivers from entering the secured properties – whether the respondent knew that the conduct in preventing the receivers from entering and taking possession of the secured properties and livestock was in contempt of the court order PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – IN GENERAL – whether the court should exercise the discretion not to punish for contempt – where personal deterrence is not required – where general deterrence is required – what punishment is appropriate for the contempt and the circumstances of the contemnor Uniform Civil Procedures Rules 1999, r 930 Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, considered Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115, considered Lade v Co Pty Ltd v Black [2006] 2 Qd R 531, followed In re Mileage Conference Group of the Tyre Manufacturers’ Conference Ltd’s Agreement [1966] 1 WLR 1137, considered Paroz v Paroz [2010] QSC 488, considered
COUNSEL:	B D O’Donnell QC and D de Jersey for the applicants D G Clothier SC and S Webster for the respondent John Macarthur Wharton
SOLICITORS:	Gadens Lawyers for the applicants Levitt Robinson for…