Cossens v Petta [No 2]
[2015] WASC 313
•20 AUGUST 2015
COSSENS -v- PETTA [No 2] [2015] WASC 313
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 313 | |
| 20/08/2015 | |||
| Case No: | CIV:2269/2012 | 30 JUNE 2015 | |
| Coram: | JENKINS J | 30/06/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | The defendant, Peter Petta, is guilty of contempt of court Warrant issued for the arrest of Peter Petta | ||
| B | |||
| PDF Version |
| Parties: | GLORIA LUCY COSSENS (as beneficiary under the will of CARLOTTA PETTA) PETER PETTA (as trustee for CARLOTTA PETTA) |
Catchwords: | Contempt Noncompliance with court order Whether alleged contemnor ought to be before the court prior to finding of contempt Power to issue warrant for arrest of alleged contemnor Elements of contempt of court for noncompliance with court order |
Legislation: | Administration Act 1903 (WA), s 26 Non-Contentious Probate Rules 1967 (WA), r 27 Rules of the Supreme Court 1971 (WA), O 55 r 4, O 55 r 6, O 59 r 9 |
Case References: | Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Attorney-General (NSW) v Hayden (1994) 34 NSWLR 638; (1994) A Crim R 549 Cossens v Petta [2014] WASC 117 Hearne v Street [2008] HCA 36 Singh v Kaur Bal [No 3] [2012] WASC 243 Szulc v The Chief Executive Officer, Department of Environment and Conservation [No 4] [2012] WASCA 143 The Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Sections 36, s 37 and 45 of the Administration Act 1903 (WA)
Section 92 of the Trustees Act 1962 (WA) and the Inherent Jurisdiction of the Court
- Plaintiff
AND
PETER PETTA (as trustee for CARLOTTA PETTA)
Defendant
Catchwords:
Contempt - Noncompliance with court order - Whether alleged contemnor ought to be before the court prior to finding of contempt - Power to issue warrant for arrest of alleged contemnor - Elements of contempt of court for noncompliance with court order
Legislation:
Administration Act 1903 (WA), s 26
Non-Contentious Probate Rules 1967 (WA), r 27
Rules of the Supreme Court 1971 (WA), O 55 r 4, O 55 r 6, O 59 r 9
Result:
The defendant, Peter Petta, is guilty of contempt of court
Warrant issued for the arrest of Peter Petta
Category: B
Representation:
Counsel:
Plaintiff : Ms M J Elliott
Defendant : No appearance
Solicitors:
Plaintiff : Elliott & Co
Defendant : No appearance
Case(s) referred to in judgment(s):
Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
Attorney-General (NSW) v Hayden (1994) 34 NSWLR 638; (1994) A Crim R 549
Cossens v Petta [2014] WASC 117
Hearne v Street [2008] HCA 36
Singh v Kaur Bal [No 3] [2012] WASC 243
Szulc v The Chief Executive Officer, Department of Environment and Conservation [No 4] [2012] WASCA 143
The Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
- JENKINS J: (This judgment was delivered extemporaneously on 30 June 2015 and has been edited from transcript).
1 By chamber summons filed by the plaintiff on 4 February 2015 the plaintiff has sought, amongst other orders, an order that the defendant, Peter Petta, be fined, ordered to perform community service work or imprisoned for failing to comply with order 6 of the orders which I made on 2 July 2014, as extended by order 1 of the orders I made on 11 August 2014. These are my reasons for decision in respect of that application.
The application
2 The application is brought pursuant to the Rules of the Supreme Court 1971 (WA), (the Rules), O 55 r 4(ii), which provides that:
Applications for committal for contempt of court consisting of disobedience to judgments or orders made by a judge may be made by summons to a judge in chambers.
3 The application came on for hearing before me on 4 June 2015. There was no appearance by Mr Petta. The plaintiff had filed an affidavit of Geoff Leo Hillman, sworn 2 March 2015, which proved that Mr Petta had been personally served with the chamber summons, the affidavit of the plaintiff sworn 2 February 2015 and the Rules O 59 r 9(ii), memorandum supporting waiver of conferral.
4 As I was satisfied that Mr Petta had been served with the application and supporting affidavit and was aware of the date listed for hearing of the application, I proceeded to hear the plaintiff's application.
5 At the conclusion of the hearing I allowed the plaintiff 14 days to file evidence of the grant of letters of administration to her and evidence that Mr Petta had not produced the documents referred to in order 6 of my orders of 2 July 2014, to the plaintiff's solicitors. Up to that point, the evidence that the documents had not been produced was hearsay evidence contained in the plaintiff's affidavit. I then adjourned the matter to 19 June 2015 for decision. I said that, in the meantime, I would also make a decision as to whether to issue an order to Mr Petta to attend court on that date.
6 On 8 June 2015, the court posted, by ordinary mail, a letter dated 5 June 2015 to Mr Petta, advising him that the application was part-heard and had been adjourned until 2.15 pm on 19 June 2015. Mr Petta did not appear in court on 19 June 2015.
7 Upon further consideration of the issues, I had decided that it was appropriate that I issue an order to Mr Petta to attend court prior to me delivering a decision in respect of the plaintiff's application. The reason for that was that contempt of court is a very serious matter which may have serious consequences for Mr Petta. It was in the interests of justice that Mr Petta be ordered to attend court so that I could be satisfied that he had had notice of the application, the material in support of it and the possibly serious consequences for him should he be found in contempt of court.
8 Further, it was in the interests of justice that he be given every opportunity to make a response to the application should he wish to do so. On 19 June 2015 I made the order for him to attend court today and, otherwise, adjourned the application to today.
9 Today, 30 June 2015, the plaintiff has filed an affidavit of service of Geoff Leo Hillman, sworn 26 June 2015, which attests to the fact that on 26 June 2015 Mr Hillman personally served Mr Petta with my order dated 19 June 2015 by handing a true copy thereof to him.
10 Mr Petta has been called outside of court today. He has not attended court. I am satisfied that my order of 19 June 2015 was served on Mr Petta but he has not appeared today. A question then arises as to whether I should proceed to finalise the plaintiff's application in the absence of Mr Petta or whether I should issue a warrant now for his arrest.
11 The power to issue an order to a party to attend court to answer a charge of contempt and the power to issue a warrant to such a person was discussed in The Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641, attached by the then President Kirby to his decision in Attorney-General (NSW) v Hayden (1994) 34 NSWLR 638; (1994) A Crim R 549.
12 The majority of the court in Ritter concluded that the New South Wales Supreme Court had power to order persons to attend court to answer a charge of contempt. In issuing my order on 19 June 2015 I said I was content to rely on the judgment of McHugh J in Ritter on this point to conclude that I had the inherent power to order Mr Petta to appear. I also noted that in Szulc v The Chief Executive Officer, Department of Environment and Conservation [No 4] [2012] WASCA 143 [24] the Court of Appeal in this State noted that his Honour the Chief Justice had ordered the appellant to attend court before him to answer a charge of contempt. The Court of Appeal did not criticise that order.
13 However, the question as to whether a court is empowered to issue a warrant to compel a party charged with contempt to attend court before a finding of contempt is made is less certain. As there is no evidence before me to satisfy the requirements for the issue of a warrant pursuant to the Rules O 55 r 6, I am not satisfied that I have the power to issue a warrant for the arrest of Mr Petta, at this point.
14 Mr Petta is aware of these proceedings and seems to have deliberately decided not to attend court to answer the allegation of contempt. At this point, it is my view that it is his right to do so. The position may well change at the conclusion of the delivery of my reasons in respect to the plaintiff's application.
15 Consequently, I have decided to proceed to determine the plaintiff's application that Mr Petta be held in contempt of court without requiring Mr Petta to be in court at this stage of the proceedings. I now proceed to deliver my reasons in respect of the application.
Background
16 The background to this matter can be found in Cossens v Petta [2014] WASC 117. That is my decision on the plaintiff's application that Mr Petta be passed over as executor of the Estate of Carlotta Petta, the deceased, and that the plaintiff be granted letters of administration with the will dated 16 May 1983 of the deceased annexed. On 2 July 2014 I made the following orders:
(1) there is judgment for the Plaintiff;
(2) the Defendant's counter-claim is dismissed;
(3) the Defendant is passed over as executor of the estate of the deceased (the Estate);
(4) a Registrar of the Probate Division of the Supreme Court of Western Australia is directed to issue a grant of Letters of Administration (with the will attached) (the Grant), to the Plaintiff (the Administrator), after completion of all administrative requirements;
(5) the requirement of a surety guarantee pursuant to s 26 of the Administration Act 1903 (WA) and r 27 of the Non-contentious Probate Rules 1967 (WA) be dispensed with;
(6) within 28 days the Defendant deliver to the Plaintiff's solicitor by appointment all accounts, receipts or other documents in his possession, custody or control relating to the assets, liabilities and income of the Estate, including but not limited to all instruments of title (including the certificate of title for the property commonly known as 24 Rathay Street, Victoria Park), records of bank accounts or other Estate property to be held on behalf of the Administrator;
(7) the Plaintiff's application for costs orders is adjourned to 24 July 2014; and
(8) there be liberty to apply.
17 Mr Petta was represented on 4 April 2014 when I handed down my decision. On 24 July 2014, I heard submissions in respect of costs. A lawyer appeared from the firm of solicitors who had represented Mr Petta. She advised that the firm had ceased to act for Mr Petta. The practitioner said that the firm had made an application to be removed from the court record but had been unsuccessful in serving the application on Mr Petta. Mr Petta was not in court. However, the lawyer advised that Mr Petta had been notified of the hearing.
18 The matter was adjourned until 11 August 2014. On 28 July 2014, Mr Petta was served with a copy of my orders of 2 July 2014. On 11 August 2014, Mr Petta did not appear personally. Mr John Pitman, a lawyer from the firm of solicitors who had represented Mr Petta, appeared and told me that he had not heard from Mr Petta. He said that Mr Petta's daughter had rung him the previous Friday to find out what was happening and Mr Pitman had advised her that Mr Petta should attend court on that date and that his firm was seeking to be removed from the record. I made the order to remove Mr Pitman's firm from the record.
19 I was advised by counsel for the plaintiff that Mr Petta had not complied with order 6 of my orders of 2 July 2014. In particular, counsel was concerned that the plaintiff could not carry out her duties as administrator of the Estate as she did not have documents relating to the Estate and did not have the certificate of title for the main asset of the deceased's estate, that is, the property at 24 Rathay Street, Victoria Park.
20 I ordered that Mr Petta had a further 14 days after service of the order on him to comply with order 6 of my orders on 2 July 2014. I further ordered that if Mr Petta failed to comply with that order or to obtain an extension of time within which to comply then the court would consider any application by the plaintiff to have Mr Petta dealt with for contempt of court. Mr Pitman has subsequently filed a certificate, certifying that he served a copy of the orders I made that day on Mr Petta.
21 On 26 July 2014, the plaintiff's solicitor sent a letter by ordinary mail to Mr Petta, specifically referring to par 6 of my orders of 2 July 2014. The letter requested that Mr Petta immediately make arrangements for an appointment with the solicitor's office. The letter also advised that if Mr Petta did not comply with the order, the firm had instructions to make application to the court to obtain an order that he be held in contempt of court. The letter enclosed a copy of the plaintiff's minute of proposed orders to be sought with respect to such an application. Mr Petta has not complied with order 6 of my orders of 2 July 2014 as extended by order 1 of the orders made on 11 August 2014.
22 As a consequence, the plaintiff has been unable to administer the Estate of her late mother, the deceased, in accordance with the letters of administration which were granted to her, formally, on 5 August 2014. In particular, the plaintiff has not been able to have the deceased's main asset, the home in Victoria Park, transferred to her as administrator of the Estate. The plaintiff believes that Mr Petta still has possession of the original certificate of title for that home.
Legal principles
23 I now turn to the legal principles which apply to an application of this type. A party who refuses to do an act required by an order of the court within the time specified in the judgment or order is guilty of contempt of court. This type of contempt is usually regarded as being a civil contempt. If it relates to proceedings between private parties it is also regarded as being a civil contempt because the contempt proceedings usually seek to ensure compliance with the relevant obligation rather than to punish the contemnor for breaches of it.
24 However, the nature of the proceedings need to be determined 'by reference to its substantial character, not to merely formal or incidental features': Hearne v Street [2008] HCA 36 [132] - [133]. No matter whether it is a criminal or civil contempt, proof of the alleged contempt must be established beyond reasonable doubt: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey & Gaudron JJ), 548 (McHugh J).
25 To prove a civil contempt of court involving an alleged breach of an order of the court, the applicant must prove the following matters. First, that an order was made by the court; secondly, that the terms of the order are clear and unambiguous and capable of compliance; thirdly, that the order was served on the alleged contemnor; fourthly, that the alleged contemnor has knowledge of the terms of the order; and fifthly, that the alleged contemnor has breached the terms of the order and that the act or omission which constituted the breach of the order was deliberate and voluntary: Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201; Singh v Kaur Bal [No 3] [2012] WASC 243 [56].
Determination of the application
26 I now turn to apply the law to the facts in this case. The evidence establishes to the standard of beyond reasonable doubt that:
(1) I made an order on 2 July 2014, which required that within 28 days the defendant, Mr Petta, deliver to the plaintiff's solicitors by appointment, all accounts, receipts or other documents in his possession, custody or control relating to the assets, liabilities and income of the estate of Carlotta Petta including, but not limited to, all instruments of title, including the certificate of title for the property commonly known as 24 Rathay Street, Victoria Park, records of bank accounts or other estate property to be held on behalf of the administrator;
(2) I made a further order on 11 August 2014 that the defendant had a further 14 days after service of the order to comply with the preceding order;
(3) the terms of those orders were clear, unambiguous and capable of compliance;
(4) the order of 2 July 2014 was served on Mr Petta on 28 July 2014;
(5) the order of 11 August 2014 was served on Mr Petta by his former solicitor, Mr Pittman, on or before 28 August 2014;
(6) Mr Petta had knowledge of the terms of the orders by reason of service of them on him;
(7) up until a date after the orders were made on 2 July 2014, Mr Petta was represented by a lawyer in the substantive proceedings;
(8) Mr Petta has not complied with the orders referred to in pars 1 and 2;
(9) it is not possible that Mr Petta has no records of the description contained in order 6 unless he has deliberately disposed of them in some way; and
(10) Mr Petta, it seems, has at all times been residing in the home in Rathay Street as that was the evidence at the substantive hearing and the documents that I have referred to have been served on him since then at that address. Further, the affidavit of the plaintiff establishes that she has seen him at that address.
27 In essence, Mr Petta has refused to communicate with his former solicitors, the plaintiff or the plaintiff's solicitors since the conclusion of the hearing of the substantive matter. His failure to comply with the orders is consistent with the attitude he displayed in the substantive proceedings. Based on the material before me, I can only conclude that his failure to comply with the orders is deliberate and voluntary.
28 For the above reasons, I am satisfied beyond reasonable doubt that Peter Petta is guilty of contempt of court by failing to comply with order 6 of my orders on 2 July 2014, as extended by my order 1 made on 11 August 2014. I therefore convict him of contempt of court.
29 The issue now arises as to whether I should proceed to sentence Mr Petta in his absence or whether I should issue a warrant for Mr Petta's arrest so that he can be brought before the court for sentence.
30 I have given considerable thought to this issue and, in my view, it is appropriate that I issue a warrant for Mr Petta's arrest to have him brought before the court for sentence. Given the seriousness of the penalties which I can impose on him, including imprisonment for an unlimited period of time, it is appropriate that he be before the court and be able to make any plea in mitigation which he wishes to make prior to me imposing sentence on him. Consequently, I issue a warrant for his arrest.
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