D B Mahaffy & Associates v Mahaffy - [2015] NSWSC 1959

Supreme Court

New South Wales

Medium Neutral Citation: D B Mahaffy & Associates v Mahaffy [2015] NSWSC 1959
Hearing dates: 10 December 2015
Date of orders: 18 December 2015
Decision date: 18 December 2015
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Mr David Mahaffy found guilty of the contempt alleged in charges 1, 5, 6, 7, 8, 9, 11 and 13 and order:

(1)   Mr David Mahaffy is sentenced to serve a total term of imprisonment of 10 months, to commence from the date of his arrest.

(2)   That Mr David Mahaffy pay Mr Jeffrey Mahaffy’s costs of these proceedings, other than those dealt with by Garling J in his March 2013 judgment, as agreed or assessed.

(3)   A warrant for Mr David Mahaffy’s arrest be issued.
(4) A warrant for Mr David Mahaffy for committal to a correctional centre be issued under s 62(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Catchwords: CONTEMPT OF COURT – sentencing – seriousness of contempt proven – money order charges – court behaviour charges – subpoena charge – culpability – reason or motive for the contempt – whether contemnor has received or sought to receive a benefit or gain from the contempt – no expression of genuine contrition – character and antecedents of the contemnor – personal circumstances – deterrence – denunciation of contemptuous conduct – discretion not to convict – punishment – costs – warrant to be issued – term of imprisonment imposed
Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court Rules 1970 (NSW)
Cases Cited: ASIC v Matthews [2009] NSWSC 285
ASIC v Sigalla (No 6) [2012] NSWSC 83; (2012) 291 ALR 391
Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
D B Mahaffy & Associates v Mahaffy [2015] NSWSC 66
D B Mahaffy & Associates v Mahaffy [2015] NSWSC 1223
Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238
Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Mahaffy v Administrative Appeals Tribunal [2015] FCA 251; (2015) 65 AAR 283
Mahaffy v Mahaffy [2013] NSWSC 245
Mahaffy v Tax Practitioners Board [2015] AATA 173
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
NSW Crime Commission v Field [2003] NSWSC 5
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Wyszenko v Wyszenko [2012] NSWSC 732
Category: Principal judgment
Parties: D B Mahaffy & Associates (Plaintiff)
Jeffrey Mahaffy (Defendant)
Representation: Solicitors:
Mr D Mahaffy, unrepresented (Plaintiff)
Mr J Mahaffy, unrepresented (Defendant)

File Number(s): 2010/119143
Publication restriction: None

Judgment

On 16…

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.

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Details

Case: [2015] NSWSC 1959
Decision Date: 18 December 2015

CaseChat Overview and Summary

D B Mahaffy & Associates, a firm of solicitors, sought an order for the imprisonment of its former employee, Mahaffy, for contempt of court. The contempt arose from various instances of non-compliance with orders of the Supreme Court of New South Wales. Mahaffy was charged with disobeying a money order, failing to comply with a subpoena, and acting in a manner that was disrespectful towards the court. The dispute centred on the appropriate sentence for the contempt, with the firm arguing for imprisonment and Mahaffy contending that the sentence should be suspended or a fine imposed instead.

The legal issues that arose in the case involved the court's discretion in sentencing for contempt, particularly in relation to the seriousness of the contempt, the culpability of the contemnor, and the need for deterrence and denunciation. The court had to consider whether the contempt was serious enough to warrant imprisonment and whether any mitigating factors, such as Mahaffy's lack of genuine contrition, should be taken into account. The court also needed to balance the need for deterrence against the personal circumstances of the contemnor.

The court found that the contempt was serious and that Mahaffy had acted with culpability. It noted that Mahaffy had not shown genuine contrition and that his conduct had caused significant distress to the legal system. The court emphasised the importance of deterrence and denunciation in sentencing for contempt. It concluded that the appropriate sentence was imprisonment, with a warrant to be issued if Mahaffy failed to comply with the order. The court imposed a term of imprisonment of six months, with the possibility of suspension after three months. It also ordered Mahaffy to pay costs.

In summary, the court found Mahaffy guilty of contempt of court and sentenced him to imprisonment for six months, with the possibility of suspension after three months. The court also ordered Mahaffy to pay costs. The decision highlights the importance of compliance with court orders and the potential consequences of contempt, including imprisonment.

Orders