Clay v Clay (No 2)

[2004] TASSC 33

[2004] TASSC 33

CITATION:            Clay & Ors v Clay & Anor (No 2) [2004] TASSC 33

PARTIES:  CLAY, Marcus John Edward
  CLAY, Partrick Robert
  CLAY, Ann-Marie Louise

(by their litigation guardian)
JANEIRO, Elizabeth Maree
v
CLAY, Geoffrey Edward
CLAY, Vera Irmgard

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M80/2001
DELIVERED ON:  20 April 2004
DELIVERED AT:  Hobart
HEARING DATES:  25, 27 February, 20 March, 24 June,

8, 10 and 22 December 2003, 10 – 13 February 2004

Written Submissions 1, 9 and 16 July 2003

JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure - Contempt, attachment and sequestration - Attachment and committal - As a method of enforcing orders of court - Orders other than for payment of money - Application for contempt order - Whether correct procedure used - Writ of attachment.

Supreme Court Rules 2000 (Tas), rr 942 – 944.
Aust Dig Procedure [728]

REPRESENTATION:

Counsel:
           Applicants:  N R Readett and K P Bradshaw
           Public Trustee:  B McManus
           Respondents:  J E Green
Solicitors:
           Applicants:  Clerk Walker & Stops
           Public Trustee:  Public Trust Office
           Respondents:  John Green

Judgment Number:  [2004] TASSC 33
Number of Paragraphs:  17

Serial No 33/2004
File No M80/2001

MARCUS JOHN EDWARD CLAY, CURTIS PARTRICK ROBERT CLAY
and ANN-MARIE LOUISE CLAY by their litigation guardian
ELIZABETH MAREE JANEIRO v GEOFFREY EDWARD CLAY
and VERA IRMGARD CLAY (NO 2)

REASONS FOR JUDGMENT  SLICER J

20 April 2004

1. The respondents were trustees of an estate who were on 24 June 2003, ordered to furnish and verify accounts.  At the time of the making of the order, they were not present in Court, although they were represented by counsel who was also the solicitor on the record.  The respondents did not comply with the order.

1. On 29 September 2003, the respondents were, by order of the learned Chief Justice, removed as trustees, and the Public Trustee appointed in their stead.

1. On 12 September 2003, the applicants filed an interlocutory application seeking orders:

"1   That as a consequence of the respondents' failure to comply with the Order of the Court made on the 24^th June 2003 that they furnish accounts in their capacity as executors and trustees of the estate of the late Adam John Baynes Clay that:

(a)The respondents be found to be in contempt of this Honourable Court;

(b)In the alternative, that the Court issue a Summons to the respondents requiring them to show cause why they should not be found in contempt for failing to furnish the accounts pursuant to the said Order;

(c)…

2    Such further or other orders as the Court deems appropriate.

3    That the respondents pay the costs of and incidental to this application."

Service of the order of 24 June was effected on the respondents on 17 November 2003, but due to the impossibility of strict compliance with the terms of the order, the applicants, on 24 November, sought and obtained a fresh order requiring the respondents to provide accounts of their trusteeship on or before 8 December.  That order was served on 25 November.  They appeared, unrepresented, on 8 December, but did not comply with the order.  On that day the Court was not satisfied as to their explanation and found each to be in contempt of court.  The question of disposition was adjourned, and following further hearings on 10 and 22 December, to enable the respondents to obtain representation, the matter generally was adjourned until February 2004.  The hearing resumed on 10 February by which time the respondents were represented by the same counsel who had earlier appeared at the June 2003 hearing.  The February hearing was concerned with the sixth question raised by the original application made in April 2001, namely the disposition of the assets of the estate during the respondents' trusteeship.

1. At the commencement of the hearing on 10 February, counsel for the respondents contended that the procedure used for the contempt application was flawed and that the finding of contempt ought be vacated.  The contention was that the correct procedure was by way of a writ of attachment and not by application.  The contention was rejected and these reasons state the reason for that rejection.

Supreme Court Rules 2000

1. The Supreme Court Rules, Div3, provide for the procedures governing an allegation of contempt. Here the contempt alleged was one other than "contempt in the face of the court". The applicants made their application in accordance with r942, which relevantly states:

"942 ¾ (1)   An application for punishment for contempt of court, other than contempt in the face of the Court, is to be ¾  

(a)  on notice to the respondent; and

(b)  specify the nature of the alleged contempt.

(2)   The application is to be entitled ¾  

(a)in the proceeding with reference to which the contempt is alleged to have been committed; or

(b)…

(3)   Unless the Court or a judge otherwise orders, the application is to be served personally on the respondent.

(4)   If an application has been filed and it appears to a judge that the respondent is likely to abscond, the judge, by warrant directed to the Sheriff, may direct that the respondent be arrested and brought before the Court or a judge.

(5)   A respondent brought before the Court or a judge under a warrant is to be detained in custody until the charge is disposed of, unless the Court or a judge grants bail.

(6)   …

(7)   The respondent, unless otherwise ordered, is to answer the interrogatories by affidavit.

(8)   …

(9)   On the hearing of the application, the Court may ¾  

(a)commit the respondent to prison for a fixed term or until the occurrence of some event; and

(b)impose a fine, either instead of or in addition to ordering committal; and

(c)if it imposes a fine, commit the respondent to be imprisoned, or further imprisoned, until the fine is paid; and

(d)make any order as to costs as is appropriate."

1. Counsel for the respondents relied upon a passage in Halsbury's Laws of Australia that:

"The executor of an estate who fails to file accounts within the time prescribed by the rules of court may be attached."

Attachment and committal are summary processes exercisable against the person for contempt of court.

Historically, attachment was the proper remedy for refusal or neglect to obey a judgment or order to do a particular act; committal was the remedy to enforce a judgment or order to abstain from doing an act.

The distinction between attachment and committal is retained in the rules of the High Court of Australia and of the Supreme Courts of the Australian Capital Territory and Tasmania,  although in each of those jurisdictions leave is now required to issue a writ of attachment."

Laws of Australia provides a little more detail in stating:

"The court may order that a person be attached, that is, taken into custody, for not obeying a court order.  This is a method of execution.  Where a party is ordered to perform an act, or to pay money into court, the party which is entitled to the benefit of the judgment may proceed for the attachment of the defaulting party.  The default is contempt of court.  Punishing the defaulter is intended to compel compliance with the judgment.

Contempt consists of the failure to comply with the judgment, irrespective of the reason.  Attachment issues as a process or order of the court.   The sheriff takes the defaulting party into custody, either for a fixed term or until the contempt is purged.  Attachment is equally applicable whether the judgment imposes positive or negative obligations.  If the default is unintentional, however, the court is usually lenient.  Besides, the court may order a writ of attachment to lie in court to give the contemnor an opportunity to comply with the judgment.  If the default is wilful, the court can imprison the contemnor."

1. In Re The Will of Oliver (1884) X VLR 28, a party had moved for an order nisi calling on the executor of a will to show cause why he should not file accounts in accordance with Reg Gen 1873, r16(a).  Molesworth J stated, at 29:

"It is not necessary to obtain an Order for the executor to file accounts.  He is bound to do that under the general Rule of Court.  The proper course is to move for an Order nisi for an attachment for not filing accounts.  But a letter should first be written calling the attention of the executor to the fact that the application will be made forthwith, if accounts are not immediately filed.  I will allow the matter to stand over for such a letter to be written."

1. A similar procedure was followed in Re Smith (1899) XXIV VLR 730 where the accounts had not been filed within the period prescribed by law.  In both cases the writ of attachment was used to bring the defaulting party before the court, not for disobedience of a court order, but of a statutory requirement.  The writ was employed to secure attendance, not as a form of punishment.

1. In Tasmania, the procedure governing the issue of a writ of attachment is provided for in Div4, a significant separation from contempt procedure, which relevantly provides:

"943 ¾ (1)  A writ of attachment is to be in accordance with the prescribed form.

(2)      A writ of attachment has the same effect as a writ of attachment issued out of the Court in its equity jurisdiction before the commencement of the Act.

(3)      A writ of attachment is not to be issued without the leave of the Court or a judge granted on an application made on notice to the party against whom the attachment is to be issued.

944 ¾ (1)  An order is not to issue for the return of a writ.

(2)      The party at whose suit the writ was issued may give notice to the Sheriff requiring the Sheriff to return the writ or make a report or bring in the body within a specified time, being not less than 8 days.

(3)      If the Sheriff does not comply with the notice, the Sheriff is liable to attachment on the application of the person giving the notice."

Writs of attachment

1. Writs of attachment provide remedies in debt or monetary entitlement and in areas of personal obligation.  In the latter category they were available against both private citizens and public officers.  In the case of public officers, they were employed against officers of the court in dereliction of duty (Anon 2 Ld Ken 378; Reg v Harland 8 DPC 323), peers of the realm who refused to obey court process (Rex v St Asaph (Bishop of) 1 Wils KB 332), transfer of institutions (Denison v Harding 15 WR 346), sheriffs (White v Chapple 4 CB 628), and like instances who had flouted judicial process.  In the case of trustees, the writ was employed in cases of default in the payment of money (Cobham v Dalton 10 LR Ch 655) or a refusal to transfer assets (Digby v Turner 28 LT 296). However, the remedy was not available after judgment in a common law division (Drewett v Edwards 37 LT 622). As the laws of debt (Debtors Act (1869) (UK); Esdale v Visser 13 Ch D 421), bankruptcy and trusts (Trustee Act 1860 (UK)) were reformed through acts of parliament, recourse to the remedy became less frequent.  The Debtors Act 1869 abolished arrest and imprisonment for making default on payment of money, but excepted:

"4(3)   Default by a Trustee or person acting in a fiduciary capacity, and ordered to pay by a Court of Equity any sum in his possession, or under his control."

1. Attachment for non-payment was a remedy of right (Evans v Bear 10 Ch 76) but in cases of contempt for non-compliance with an order, it remained one of discretion (Ashworth v Outram (No 2) 5 Ch D 943). Flexibility was gained by permitting an application to "make a judge's order a rule of court", and for an attachment for disobeying it on the same motion (Hinchliffe v Jones 4 DPC 86; S P Forster v Kirkwall 4 DPC 370.  Ordinarily an order nisi was first required after the giving of notice and personal service (Chilton v Ellis 2 DPC 388; In Re Gregg and Prance 39 LJ Ch 107). Voluntary attendance following the issue but not the service of an order nisi precluded any challenge to validity (Levi v Duncombe 3 DPC 447).  A case note to the last-mentioned case records:

"If a party is in contempt, it is not necessary that a rule calling upon him to answer it should be personally served."  (Common Law Digest, Fisher, Vol 1, 494).

1. In cases of contempt, a writ of attachment could be used to ensure the attendance of the offending person before the court.  Daniell, in his Practice of the High Court of Chancery, 4 ed, 1865, Vol 1, 420, states:

"An attachment should be directed to the Sheriff or the officer of the county or jurisdiction wherein the party, against whom the writ was issued, is likely to be found."

He was writing in a time when the counties of England possessed separate jurisdictional requirements.  The extracts from Halsbury and Laws of Australia and a review of 19^th Century case law suggests that in relation to the laws of trust and contempt, any modern use of the remedy is limited to:

(1)a vehicle for enlivening jurisdiction in cases of non-compliance with a statutory duty imposed on an executor or trustee;

(2)permitting the arrest of an alleged contemptor and his or her presentment to the court in the case of a claimed "out of court" contempt;

(3)an action against a public officer for non-compliance with a court process.

1. The historic procedure pertaining to contempt has been replaced by the Supreme Court Rules, Div3. A writ might still be available in a case where the applicant is unable to show a "likelihood to abscond". A court might issue a "warrant directed to the Sheriff" (r942(4)) requiring arrest and presentment. The proceedings are commenced by application (r942(1)) and there is no need to have recourse to a writ of attachment.

1. The above approach is consistent with the terms of the form prescribed by r943(1).  Form 78 is stated in the following terms:. 

"writ of attachment

to the sheriff and the officers and assistants of the sheriff

You are commanded to attach [name and address of person against whom allegation is made] and bring him [or her] before the Court there to answer a contempt that he [or she] is alleged to have committed and there and then to perform and abide any order of the Court.

And you are further commanded to bring this writ with you.

Dated

Registrar [or District Registrar]

[If the writ is issued for a default in payment of money under section 3 of the Debtors Act 1870, add 'This writ does not authorise imprisonment for any longer period than 6 months']."

1. The forms replicated in Forms of Judgments and Orders, by Seton, 1901, 6 ed, Vol 1, Ch XXVII show a similar procedure, namely an order nisi for non-compliance and arrest, subject to the giving of an undertaking or compliance with the terms of the order.

1. The writ is addressed to the sheriff and requires the production to the court of the person named.  The writ is that of compulsory attendance.  It does not supplant the procedure required by the Supreme Court Rules, Div3, but provides a remedy in cases of non-compliance with the terms of a contempt application or proceedings involving breach of duty by a public officer (r653).

Conclusion

1. Here the parties attended the Court in response to the application.  Attendance obviated any need for arrest.  It did not deprive the Court of jurisdiction.  Even if that conclusion be wrong, the continued hearing of these proceedings included enquiry as to the disposition of the assets of the estate.  The respondents, as former trustees, were parties to that enquiry and no jurisdictional question arises.