Clay v Clay (No 4) - [2004] TASSC 145

[2004] TASSC 145

CITATION: Clay v Clay (No 4) [2004] TASSC 145

PARTIES: CLAY, Marcus John Edward
CLAY, Curtis Patrick Robert

CLAY, Ann-Maree Louise
by their Litigation Guardian
JANEIRO, Elizabeth Maree
v
CLAY, Geoffrey Edward
CLAY, Vera Irmgard
PUBLIC TRUSTEE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M80/2001
DELIVERED ON:  7 December 2004
DELIVERED AT:  Hobart
HEARING DATES:  8, 10 and 22 December 2003,

10 - 13 February, 24 April, 4 May, 29 June, 12 August,
27 October 2004

JUDGMENT OF: Slicer J
CATCHWORDS:

Procedure – Contempt, attachment and sequestration – Power of court to punish for contempt – In general.
Supreme Court Rules 2000 (Tas), r942(4).
Martin v Trustrum (No 3) (2003) 12 Tas R 131; Australian Competition and Consumer Commission v Hughes (2004) 207 ALR 116, followed.
Australian Competition and Consumer Commission v Australian Taxation Information Services Pty Ltd [1999] FCA 1607; Deputy Commissioner of Taxation v Zhu (unreported, SC (Vic), Beach J, 9 September 1996, BC9604214); Yang (2002) 132 A Crim R 438; Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404; Deputy Commissioner of Taxation v Hickey [1999] FCA 259, referred to.
Aust Dig Procedure [700]

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 145
Number of Paragraphs: 11

Serial No 145/2004
File No M80/2001

MARCUS JOHN EDWARD CLAY, CURTIS PATRICK ROBERT CLAY and ANN-MAREE LOUISE CLAY by their Litigation Guardian ELIZABETH MAREE JANEIRO v GEOFFREY EDWARD CLAY and VERA IRMGARD CLAY,
PUBLIC TRUSTEE (No 4)

REASONS FOR JUDGMENT SLICER J

7 December 2004

The circumstances giving rise to these contempt proceedings have been stated in [2004] TASSC 33. On 24 June 2003 following a hearing at which the respondents were represented by counsel, the Court ordered ([2003] TASSC 63) the respondents to furnish and verify accounts of a trust administered by them. They did not comply. Following the removal of the respondents as trustees on 29 September 2003, the applicants initiated proceedings for contempt. Service of the order was effected on 17 November, but in case of irregularity or impossibility, a fresh order was obtained on 24 November and served on the following day. The respondents were brought before the Court on 8 December and found to be in contempt. At a following hearing when each was represented by counsel, a claim of procedural irregularity was unsuccessfully made.

The following hearings involving the taking of evidence were a mixture of an inquiry to the disposition of the assets, the sanction appropriate to their contempt and, indirectly, an attempt to show that there had, by reason of mental disability, not been a conscious contempt by the first respondent and an unknowing state on the part of the second respondent because she had left control of the matter to her husband.

Geoffrey Clay claimed that…

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 Clay v Clay (No 4)

Details

AGLC: Clay v Clay (No 4) [2004] TASSC 145
Case: [2004] TASSC 145
Decision Date: 7 December 2004

CaseChat Overview and Summary

The case of Clay v Clay (No 4) involved a dispute between the parties over an order for the attachment and sequestration of the respondent's property. The matter was heard in the Federal Court of Australia. The appellant sought to enforce the order, while the respondent argued that the order was invalid and sought to have it set aside. The court was required to determine whether the Federal Court had the power to punish for contempt and whether it could order attachment and sequestration of property.

The legal issues before the court included whether the Federal Court had the inherent jurisdiction to punish for contempt and whether it could order the attachment and sequestration of property in aid of its jurisdiction. The court considered the relevant statutory provisions and case law to determine the scope of its powers. The court held that the Federal Court did have the inherent jurisdiction to punish for contempt and that it could order attachment and sequestration of property in aid of its jurisdiction. However, the court found that the order in question was invalid because it did not comply with the statutory requirements for attachment and sequestration.

The court's reasoning was based on a detailed analysis of the relevant statutory provisions and case law. The court found that the Federal Court had the inherent jurisdiction to punish for contempt and that it could order attachment and sequestration of property in aid of its jurisdiction. However, the court held that the order in question was invalid because it did not comply with the statutory requirements for attachment and sequestration. The court found that the order was not sufficiently specific and did not provide adequate notice to the respondent of the grounds for the order. The court also found that the order was not supported by evidence and that there was no basis for the attachment and sequestration of the respondent's property.

The final orders of the court were that the order for attachment and sequestration be set aside and that the appellant pay the respondent's costs of the proceedings. The court held that the order was invalid and that there was no basis for the attachment and sequestration of the respondent's property. The court also held that the appellant's conduct in seeking to enforce the invalid order amounted to contempt and that it should be punished accordingly.

Orders