Budgen v Van Gray
[1990] TASSC 133
•10 September 1990
Serial No B56/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Budgen v Van Gray[1990] TASSC 133; B56/1990
PARTIES: BUDGEN, Michael Derek
v
VAN GRAY, John Adam
VAN GRAY, Johanna Adam
FILE NO/S: LCA 54/1990
DELIVERED ON: 10 September 1990
JUDGMENT OF: Underwood J
Judgment Number: B56/1990
Number of paragraphs:
Serial No B56/1990
List "B"
File No LCA 54/1990
MICHAEL DEREK BUDGEN
v JOHN ADMAN VAN GRAY AND JOHANNA ADAM VAN GRAY
REASONS FOR JUDGMENT UNDERWOOD J
10 September 1990
A Commissioner of the Court of Requests dismissed the appellant's motion for an order that the respondents be committed to prison for contempt of court. This appeal is against that order of dismissal.
The matter has a tortuous history. On 1 February 1989, judgment was entered in the Court of Requests for the appellant against the respondents for $3,860.00 and $126.10 costs. The judgment debt was not paid. On 17 April 1989 the appellant applied for the issue of judgment summonses. One was issued for each respondent. In identical form, they summonsed the respondents "to appear personally in this Court at 73–81 Murray Street Hobart in Tasmania on Monday the 10th day of July 1989 at the hour of ten o'clock in the forenoon" to be examined on oath with respect to the means they have to pay the judgment sum. Each summons went on to call upon the respondent to show cause why the respondents should not be committed to prison for default in payment of the judgment debt. The authority for the court to issue a judgment summons, conduct an examination and make an order of committal is the Debtors' Act 1870, s4 and the Debtors' Rules.
The issue of the judgment summonses was not in accordance with the provisions of the Debtors' Rules. Rule 15 provides that "every judgment summons shall be in the prescribed form ...". These summonses were not in the prescribed form in that, after summoning the respondents to appear personally at the specified time and place to be examined and to show cause why they should not be committed to prison, as is prescribed by Form III, they went on to provide:
"And then and there to have and produce all your bank statements and savings bank pass books and all documents giving details of your earning and all other books, papers, writings, and other documents relating to the said matter which may be in your custody, possession or power."
The above additional words to the judgment summonses appear to be partly extracted from the form of summons to witness (r22) and partly original composition by the author.
The Debtors' Rules, r14, provides:
"Where a party desires to enforce by commitment any judgment or order of any court other than the Supreme Court, he shall obtain from the proper officer of the court in which the judgment or order was given or made an office copy of the judgment or order he desires so to enforce, and shall file such office copy, together with an affidavit of the sum due thereon, with his application."
The record of proceedings transmitted from the court below contains an office copy of the judgment but no affidavit of the sum due thereon. This matter was not adverted to during the course of argument but prima facie, it appears that issue of the judgment summonses in the absence of the prescribed affidavit was an irregularity. However, as will be seen, it is unnecessary to pursue this matter further.
On 10 July 1989 the respondents failed to appear as summonsed. Each was fined $20.00. See the Debtors' Act 1888, s5. The hearing of the judgment summonses was adjourned sine die.
On 19 July 1989 both respondents paid the fine imposed on 10 July 1989.
The solicitor for the appellant applied for the issue of a "notice of adjourned hearing". The court issued a notice in the following form:
"Take notice that the judgment summons herein which on the 10th day of July 1989 was adjourned sine die, has been set down for hearing.
You are therefore, hereby summoned to appear at the Court House at 73–81 Murray Street, Hobart in Tasmania, on Monday the 14th August 1989 at ten o'clock in the forenoon, to be examined on oath by the Court touching the means you have or have had since the date of judgment to pay the amount of the said judgment."
A copy of this notice was served personally on each respondent on 24 July 1989.
On 14 August 1989 the matter was called on for hearing, not at the Court of Requests held at Murray Street but at the Court of Requests held at Liverpool Street, Hobart. The change of venue was the subject matter of evidence given at a later hearing. The respondents did not appear and the proceedings were again adjourned sine die.
By notice of motion dated 1 September 1989 the appellant gave notice of intention to move the Court of Requests at 10am on 9 October 1989 for an order pursuant to the Debtors' Rules, r23(2) that the respondents be committed to prison for "their contempt of this Court for failing to appear without just cause to a judgment summons which was set down for hearing on Monday the 14th day of August 1989 at ten o'clock in the forenoon at the Court House 73–81 Murray Street, Hobart". Rule 23(2) provides:
"Any judgment debtor duly served with a judgment summons who fails without sufficient cause to attend before the judge [commissioner] pursuant to the judgment summons shall be guilty of a contempt of court, and shall be punishable accordingly."
The notice of motion was served personally on the first–named respondent on 12 September 1989 and on the second–named respondent on 19 September 1989. The motion came on for hearing on the due date. Neither respondent appeared. The hearing was adjourned to 11 October on which day the learned Commissioner dismissed the motion. He held that the court had no power to determine the application on a notice of motion. Further, the learned Commissioner held that, having regard to the provisions of the Debtors' Act 1888, s5, the court had no jurisdiction to commit a judgment debtor to prison for failing to attend in obedience to a judgment summons.
The appellant appealed to this Court against that decision. Cox J held (7689) that the Local Courts Act 1896, s140, together with the Debtors' Rules, r23(1) gave the Court of Requests jurisdiction to commit to prison a judgment debtor who fails to attend on the hearing of a judgment summons. His Honour also held that the proper procedure was to apply by way of notice of motion in accordance with the provisions of the Local Courts Act, s138(2) and the Rules of the Supreme Court, O72, r2. An order was made that the learned Commissioner hear and determine the motion according to law. At the outset of the proceedings before Cox J the question of the jurisdiction of this Court to entertain an appeal from the order dismissing the motion was considered. His Honour said at p2 of his reasons for judgment:
"The applicant appealed to this Court purportedly pursuant to s123 of the Local Courts Act 1896, but as for the purposes of proceedings under the Debtors' Act he is not in my view a 'party to an action' brought in the Court of Requests and as the court's powers should the appeal succeed to 'order a new trial' or to 'order judgment to be entered for either party' do not seem appropriate to achieve the result the applicant seeks, namely of punishing the judgment debtors for their failure to attend for examination with some more effective penalty than a $20.00 fine, I gave him leave to amend his notice of appeal to seek an order under s127 that the learned commissioner show cause why he should not exercise the jurisdiction he held he did not possess."
On 12 June 1990 the learned Commissioner recommenced hearing the motion for an order of committal. Evidence was adduced from a court bailiff concerning the change in venue on 14 August 1989 from Murray Street to Liverpool Street. In his reasons for judgment the learned Commissioner summarised this evidence in the following way:
"The court was listed for Murray Street that morning and was transferred to the Liverpool Street court. Mr Price said that he was in attendance at Murray Street until about 10am. He said it was a very late transfer, he had no idea of the exact time, ie, of the transfer. He said he had no reason to record the time. Mr Price went to Liverpool Street where he called the names of the judgment debtors and they did not appear when called.
...........
Notice was posted at the court house at 73–81 Murray Street advising the public of the fact that the sittings had been transferred to 29 Liverpool Street.
There is on the court file a copy letter dated the 4th August 1989 addressed to Johanna Adam Van Gray, the Imperial Private Hotel, 138 Collins Street. It is headed Re: Court Appearance, 14th August 1989. 'I advise this action shall be determined at 29 Liverpool Street (Court of Petty Sessions) not Murray Street as shown on the summons–notice'. There is a copy stamped W Worsey, Deputy Registrar but I do not know if the original was sent or received and it appears to be in any event in contradiction of Mr Price's evidence, Mr Price's sworn evidence that the matter was a very late transfer."
The learned Commissioner made the following finding of fact:
"It is clear on the evidence that the names of the judgment debtors were not called at 10am at Murray Street. Mr Price went to Liverpool Street at about 10am, that could be a little either way of 10am. Whilst there may well have been a notice at Murray Street directing persons to Liverpool Street there is no evidence precisely where the notice was posted and more importantly whether it would have come to the notice of the judgment debtors if they attended. If the judgment debtors did appear at 10am and their names were not called and they did not see the notice they would be entitled to leave unless there was other admissible evidence that the matter had been transferred to Liverpool Street."
Directing himself that he needed to be satisfied beyond reasonable doubt, the learned Commissioner held that he was not so satisfied that the respondents had not attended at Murray Street in obedience to the judgment summonses and dismissed the motion.
On the resumed hearing before the learned Commissioner, so called similar fact evidence was adduced of the respondents' failure to attend on previous occasions as required by other judgment summonses served on them. The relevance of such evidence to establish the fact of non–attendance on 14 August 1989 is doubtful. In Hollingham v Head (1858) 4 C & B (NS) 388 at pp391–2; 140 ER 1135 at pp1136–7:
"Does the fact of a person having once or many times in his life done a particular act in a particular way make it more probable that he has done the same thing in the same way upon another and different occasion? To admit such speculative evidence would I think be fraught with great danger."
At all events, its weight was insignificant. Such circumstantial evidence may have been probative of an issue such as a misunderstanding of the nature of the proceedings but no such issue arose in this case. The learned Commissioner's view of this evidence was favourable to the appellant when he said "a persistent failure to attend on other occasions may be some evidence of a failure to attend on the 14th August 1989 but it is not in my view sufficient".
From this second order of dismissal the appellant brought this appeal. The respondents did not appear either personally or by counsel. As was the case on the previous appeal, the question of the jurisdiction of this Court to entertain the appeal is raised. I agree with the observations of Cox J set out earlier in these reasons for judgment but conclude that this Court has jurisdiction to determine this appeal. That jurisdiction is conferred by the Debtors' Act 1870, s4(9) which provides:
"Every order made by a commissioner or chairman may be set aside or varied by a judge, in such manner and upon such terms as he thinks fit, upon application being made to him in a summary way; and a judge may order the release of any person arrested under such order in the absence of such person."
The expression "every order made by a Commissioner or chairman" is not confined to orders made pursuant to s4(1). The expression is sufficiently wide to encompass any order made in the exercise of the jurisdiction conferred by the Debtors' Act 1870 and the Debtors' Rules.
On the hearing of this appeal the appellant's argument was confined to the proposition that the learned Commissioner erred in holding that he was not satisfied that the judgment debtors did not appear in answer to the judgment summonses. I can detect no error in that finding of fact. The proceedings instituted by the notice of motion for an order that the respondents be committed to prison for contempt are penal proceedings and, as they affect the liberty of the subject, are of a criminal character thereby requiring the utmost strictness in procedure and proof. See Hall & Co v Trigg [1897] 2 Ch 219 at p222; Re Bramblevale Ltd [1970] Ch 128 and Comet Products UK Ltd v Hawker Plastics Ltd [1971] 2 QB 67.
The evidence from the court bailiff was that the decision to transfer the court from Murray Street to Liverpool Street was made at a very late stage. That evidence of course, is in conflict with the letter on the court file indicating that the decision to transfer the court was made on 4 August. The bailiff said that the respondents were known to him, that he was at the Murray Street court on the morning of 14 August 1989 and that he did not see either of them there. However, he was unable to say what time he left Murray Street to go to Liverpool Street other than it was "about 10 o'clock" or "approximately 10 o'clock". He said that he had no reason to record the time that he left Murray Street. The judgment summonses required attendance at the designated address in Murray Street at 10 o'clock. The evidence left open the real possibility that the bailiff left Murray Street before 10 o'clock and immediately thereafter the respondents appeared as required by the notice of the adjourned hearing served on them. Bearing in mind the requirement for strict proof the learned Commissioner was right to conclude that he was not satisfied that the respondents had failed to attend "pursuant to the judgment summons".
The appeal will be dismissed.
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