D B Mahaffy & Associates v Mahaffy

[2015] NSWSC 66

Supreme Court

New South Wales

Medium Neutral Citation:

D B Mahaffy & Associates v Mahaffy [2015] NSWSC 66

Hearing dates:

29 September 2014

Date of orders:

16 February 2015

Decision date:

16 February 2015

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

(1)Charges 2, 3, 4, 10 and 12 of the Further Amended Statement of Charge filed 23 April 2013 be dismissed.

(2)Charges 1, 5, 6, 7, 8, 9, 11 and 13 of the Further Amended Statement of Charge filed 23 April 2013 are to be listed for further hearing as to penalty.

(3)The matter is listed for directions at 9:30 am on 2 March 2015.

Catchwords:

CONTEMPT OF COURT – procedure – notice of motion - alleged contempt - breach of Court orders - contempt charges where money orders are not complied with - contempt charges for behaviour in court regarding words spoken, or otherwise written and filed, in court - contempt charges for deliberate failure to comply with a subpoena - contempt charges for reneging on an agreement underpinning a consent order

PROCEDURE – contempt of court - adjournment– informal and unsupported adjournment application - refused

PROCEDURE – contempt of court - notice of motions – orders seeking that the case be thrown out with costs and hearing dates be vacated – no appearance – no basis for adjournment - motions dismissed for want of prosecution

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Commissioner for Fair Trading v Rixon (No 2) [2014] NSWSC 431
D B Mahaffy & Associates Pty Limited v Mahaffy (District Court (NSW), McLoughlin J, 4 September 2009, unrep)
D B Mahaffy & Associates Pty Ltd v J R Mahaffy [2010] NSWCA 341
D B Mahaffy & Associates Pty Ltd v Jeffrey Mahaffy [2011] NSWSC 1643
D B Mahaffy & Associates Pty Ltd v Mahaffy [2013] NSWSC 1863
D B Mahaffy & Associates Pty Ltd v Mahaffy [2014] NSWSC 307
Iberian Trust Limited v Founders Trust Limited [1932] 2 KB 87
Kenneth James Baker v Anthony Christopher Paul [2012] NSWSC 392
Mahaffy v Mahaffy (Court of Appeal (NSW), Handley AJA, 26 October 2010, unrep)
Mahaffy v Mahaffy [2010] NSWSC 1358
Mahaffy v Mahaffy [2013] NSWSC 245
Markisic v the Commonwealth Bank of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737
Matthews v ASIC [2009] NSWCA 155
Roskott v Commonwealth Bank of Australia [2014] NSWCA 341
Sigalla v TZ Limited [2011] NSWCA 334
ZHU v Treasurer of NSW [2004] HCA 56; (2004) 218 CLR 530

Category:

Principal judgment

Parties:

D B Mahaffy & Associates (Plaintiff)
Jeffrey Mahaffy (Defendant)

Representation:

Solicitors:
Mr J Mahaffy, unrepresented (Defendant)

File Number(s):

2010/119143

Publication restriction:

None

Judgment

1. By notice of motion filed in 2010 in the Court of Appeal, the defendant, Mr Jeffrey Mahaffy, sought orders that his brother Mr David Mahaffy be held in contempt of Court. The Court of Appeal remitted the motion to a Judge of this Division. The hearing finally proceeded ex parte in September 2014, with the result that neither the evidence on which Mr Jeffrey Mahaffy relied, nor the case which he advanced was challenged.

2. The contempt allegations arise out of proceedings originally brought against Mr Jeffrey Mahaffy in the District Court by Mr David Mahaffy and D B Mahaffy & Associates Pty Ltd, while Mr David Mahaffy was the sole director and shareholder of that company. The claims which were finally pressed only by the company in those proceedings were dismissed.

3. An order was made in those proceedings in favour of Mr Jeffrey Mahaffy on his cross-claim, against both the company and Mr David Mahaffy, in the sum of $390,333.43. That order, as well as various costs orders made in favour of Mr Jeffrey Mahaffy against both Mr David Mahaffy and the company in both those proceedings and in related proceedings which they brought in this Court and the Court of Appeal, were not complied with. Mr Jeffrey Mahaffy’s case was that steps which he pursued to enforce those orders were sought to be frustrated by the company and Mr David Mahaffy.

Mr David Mahaffy has had a fair opportunity to be heard

4. This matter, like the various proceedings which generated the contempt motion, has a considerable procedural history. Mr David Mahaffy finally did not appear at the hearing to resist the motion and did not avail himself of the opportunity he was afterwards given to seek to be heard, before judgment was given. Despite this, I am satisfied that he was given a fair opportunity to be heard. That he did not avail himself of that opportunity, was a matter for him.

5. Mr Jeffrey Mahaffy’s case rested on affidavit evidence and the documents annexed to those affidavits, the last of which was sworn in September 2014. Those documents were served on Mr David Mahaffy and include a copy of the court continuation sheets from the District Court file in which various orders were made against Mr David Mahaffy and the company, as well as documents filed by the parties in those and other proceedings, transcripts of various hearings and orders and judgments given in those proceedings.

6. None of this evidence was finally challenged. The documents relied on include a statutory declaration signed by Mr David Mahaffy in April 2008, where he declared that he was a practicing accountant, a director of D B Mahaffy & Associates Pty Ltd, which operated an accounting and tax agent professional practice in Narrabri and that the company was able to meet a costs order, in the event that it was unsuccessful in the District Court proceedings. Despite that declaration, both the company and Mr David Mahaffy failed to comply with cost orders made against them, even though they unsuccessfully pursued various applications to have the orders set aside, as well as an appeal.

7. In August 2011, Mr David Mahaffy was granted leave to amend a motion he had filed in these proceedings, seeking that the contempt charges be summarily dismissed. The hearing of that motion was adjourned in September 2011 on Mr Jeffrey Mahaffy's application (see D B Mahaffy & Associates Pty Ltd v Jeffrey Mahaffy [2011] NSWSC 1643).

8. On 28 March 2013, Garling J summarily dismissed four of the charges pursued against Mr David Mahaffy and required Mr Jeffrey Mahaffy to file and serve a further amended statement of charge which accorded with his conclusions on the matters over which issue had been joined. Otherwise Mr David Mahaffy’s motion was dismissed (see Mahaffy v Mahaffy [2013] NSWSC 245). There has been no challenge to that decision.

9. Garling J concluded that a wilful disobedience of a court order constitutes contempt, including when the disobedience is in respect of an order that the party pay money, although such a charge may be defended by evidence that the alleged contemnor was indigent, impecunious or unable to comply with the Court’s order (see at [65] - [66]). His Honour also gave directions for the filing and service of evidence.

10. A sequestration order was made against Mr David Mahaffy on 4 March 2013 by Driver FM in the Federal Magistrates Court of Australia. The company was deregistered on 18 March 2013. The company’s registration was later reinstated, and on the unchallenged evidence, continues to trade whilst having no active directors or officeholders. It has still not complied with various of the orders made in favour of Mr Jeffrey Mahaffy in the proceedings out of which these contempt proceedings arose.

11. Mr David Mahaffy’s bankruptcy did not render these proceedings incompetent, concerned as they are not with enforcement of provable debts, but with Mr David Mahaffy’s alleged contempt of court (see Baker v Paul (2012) 83 NSWLR 364; (2012) NSWSC 392).

12. At the hearing Mr Jeffrey Mahaffy relied on the further amended statement of charge which he filed in April 2013. Mr Jeffrey Mahaffy’s position was that he was not seeking access to Mr David Mahaffy’s assets or estate, or to coerce him to pay him any money. His aim was to have the Court deal with Mr David Mahaffy’s repeated contempts.

13. In these proceedings Mr David Mahaffy has failed at times to comply with the Court’s orders and directions. He has claimed at various times that this was the result of his medical condition. In November 2013, the Registrar directed him to file an affidavit in relation to his medical condition by 29 November, following his failure to adhere to timetables fixed by Garling J and later by the Registrar. No such affidavit was filed.

14. In December 2013, Davies J concluded that there had been unwarranted and unjustifiable delay and that proper attention was not being given to the matter, in the hope that it would be delayed or go away. In the result, his Honour confirmed a hearing fixed for 7 April 2014 and determined that Mr David Mahaffy should not be permitted to rely on any evidence he had not already filed. He also gave directions as to the filing of submissions (see D B Mahaffy & Associates Pty Ltd v Mahaffy [2013] NSWSC 1863).

15. On 3 April 2014, Beech-Jones J dealt with an application by Mr Jeffrey Mahaffy for leave to file his submissions out of time, following a fire at this home. His Honour noted that Mr David Mahaffy had stopped co-operating with the Court’s processes and had not complied with its directions. His Honour noted facsimile advice from Mr David Mahaffy that he was ill and would not be appearing at the hearing, which he said that he understood, for reasons not disclosed had been “closed”. His Honour, nevertheless, vacated the hearing, gave fresh directions and listed the matter for hearing in August (see D B Mahaffy & Associates Pty Ltd v Mahaffy [2014] NSWSC 307).

16. The hearing was again adjourned in August 2014, by Rothman J, who granted Mr Jeffrey Mahaffy liberty to seek a hearing date after 22 September. His Honour directed, amongst other things, that Mr David Mahaffy file and serve his submissions on or before 15 September. None were filed.

17. The matter was listed for hearing on 29 September 2014, together with two further motions filed by Mr David Mahaffy in July and September 2014. The orders sought in those motions included that the proceedings be dismissed and that the hearing on 29 September be vacated, so that subpoenas could be served and complied with. They were supported by two affidavits. The first was sworn by Mr David Mahaffy on 22 July 2007, where he deposed that the proceedings involved a personal vendetta against him; that Garling J had dismissed most of the statement of charge brought against him; that there had been late service of an amended statement of charge by email, which was not good service and that the affidavits he proposed to rely on had not been filed and served as had been ordered, nor had submissions. He also expected to be admitted to hospital and would not be able to attend Court. In the 12 September 2014 affidavit, Mr David Mahaffy said that Mr Jeffrey Mahaffy had failed to file his submissions, as he had earlier been directed, including by Rothman J, although he acknowledged that he had received at least part of those submissions by email.

18. When the hearing finally commenced there was no appearance by either party and the matter was stood down until 11 am. Mr Jeffrey Mahaffy, who had been delayed because he felt unwell, then appeared, but Mr David Mahaffy did not. On file was correspondence sent by Mr David Mahaffy to the Registrar on 19 and 22 September 2014, to which was attached an affidavit sworn by him. There he said that he could not attend the hearing because he was being driven from Sydney to Canberra for a doctor’s appointment.

19. These documents had not been served on Mr Jeffrey Mahaffy. I treated the correspondence as an adjournment application, which Mr Jeffrey Mahaffy opposed, relying on the long procedural history of the matter and what he submitted had been repeated attempts by Mr David Mahaffy to frustrate the hearing of his contempt motion.

20. In the face of the procedural history of the matter, I refused to adjourn the hearing, given the circumstances in which the application had come to be made and the absence of supporting documents. As discussed by the Court of Appeal in Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 at [14], adjournments sought by such communication on short notice will not necessarily result in a hearing being adjourned. I was satisfied in light of the history of this matter, that justice did not permit the hearing to be adjourned again on Mr David Mahaffy’s informal, unsupported application.

21. I also dismissed Mr David Mahaffy’s two motions for want of prosecution, observing that:

“… in all of the circumstances, having regard to the history of the matter which is outlined in the judgments which have earlier been given in the proceedings and what transpired before Justice Rothman in August and before the Registrar since then, I am satisfied that Mr David Mahaffy's two motions listed for hearing today should be dismissed for want of prosecution. He hasn't appeared to pursue them. His non-appearance is consistent with his conduct during the course of the proceedings.

He wrote to the Registrar on 22 September attaching an affidavit seeking an adjournment in short compass because he has medical appointments to attend to. There is no evidence which establishes that, or any real inability to be here and in the circumstances I am satisfied no basis for an adjournment has been established and that the proper order in all of the circumstances is for his motions to be dismissed.

I note that I have provided a copy of his letter of 22 September, despite Mr Mahaffy's request that it not be provided to the plaintiff, because he says he doesn't want to be stalked and doesn't want the plaintiff to know of his whereabouts. The request is not supported by anything dealt with in the affidavit and having in mind failures by Mr Mahaffy to put on, as he is required to do, a proper notice of appearance which has been dealt with in various of the decisions and the absence of any evidence to support the suggestion of stalking, that was a request which I considered it proper to refuse.”

22. I then heard Mr Jeffrey Mahaffy’s motion. He relied on written submissions filed on 12 September 2014, as well as various affidavits filed in 2011, as well as various documents, including documents obtained on subpoena. Some of the material had been served outside the timetable fixed by Rothman J, but no issue was taken about this when the matter came before the Registrar on 19 September 2014, when Mr David Mahaffy was represented. Mr David Mahaffy did not, however, file any submissions in response.

23. I did not permit Mr Jeffrey Mahaffy to rely on further material which had not been served.

24. During the course of the hearing, in the afternoon, there was a further communication received by facsimile from a Ms Everson, Mr David Mahaffy’s office manager. She advised that Mr David Mahaffy had been admitted to hospital on Saturday night and could not attend Court, because he remained in hospital, seriously ill.

25. I again treated this advice as an adjournment application, which Mr Jeffrey Mahaffy also opposed. His case was that it would be refused because on past occasions Mr David Mahaffy had made adjournment applications and had been directed to provide evidence as to his medical condition, which had never been forthcoming. In the circumstances, I refused to adjourn the hearing immediately and concluded hearing Mr Jeffrey Mahaffy’s case on the basis that Mr David Mahaffy would then be given a further opportunity to seek to be heard.

26. At the conclusion of the hearing, I indicated that I would have my associate advise Mr David Mahaffy that his motions had been dismissed, that the hearing had proceeded ex parte and that if he wished to be heard on the contempt motion, he should promptly make an application, supported by an affidavit annexing any documents on which he wished to rely.

27. That advice was given by my associate on 29 September 2014. No application was forthcoming. In the circumstances it is appropriate that the motion be determined on the unchallenged evidence and submissions led at the hearing, Mr David Mahaffy having had a fair opportunity to meet the case advanced against him, of which he has chosen not to avail himself.

The applicable principles

28. It is not every breach of a court’s order which will amount to a contempt. In Commissioner for Fair Trading v Rixon(No 2) [2014] NSWSC 431 Garling J recently discussed the principles which apply to proceedings such as this, observing at [38] - [43]:

“38    The first principle is that the charge of contempt must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 529 per Brennan, Deane, Toohey and Gaudron JJ. It is for the Commissioner to satisfy the Court beyond reasonable doubt that Mr Rixon has committed a contempt of court.

39    Secondly, a contempt of court can be constituted by the breach of an order of the Court: Trade Practices Commission v C. G. Smith Pty Ltd (1978) 30 FLR 368 at 375; Spindler v Balog (1959) 76 WN (NSW) 391; Circuit Finance Australia v Sobbi [2010] NSWSC 789 at [10].

40    Thirdly, a person cannot be found guilty of a contempt of court for breach of an order, where the terms of the order are ambiguous: Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 515-6 per Owen J. The ambiguity must be such that it cannot be said what it was that required compliance: Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [56]-[57] per Beazley JA.

41    Fourthly, where the contempt of court consists of a failure to comply with an order of the Court, it must be demonstrated that the contempt was wilful, and not merely casual, accidental or unintentional: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98. However, it is not necessary for an applicant to prove that the contemnor intended to breach an order of the Court: see Anderson v Hassett [2007] NSWSC 1310; Mudginberri at 111; Matthews v Australian Securities Investment Commission [2009] NSWCA 155 at [16] per Tobias JA.

42    As Brereton J said in Anderson at [6]:

"The statement in Mudginberri (at 113) that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional, does not require proof of a specific intent, but permits an alleged contemnor to show by way of exculpation that the default was 'casual, accidental or unintentional' ... "

43    Finally, it is not necessary for an applicant to prove that the contemnor was aware that his or her conduct constituted a breach of the Court's order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143 per Lindgren J; Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16 at [9] per Finn J.”

29. In his March 2013 judgment (Mahaffy v Mahaffy [2013] NSWSC 245) in these proceedings, Garling J observed in relation to the particular allegations of contempt in issue in this case, that at [27]:

“(a)   if a matter constitutes a baseless attack on the integrity or impartiality of courts and judges, it may constitute a contempt warranting a remedy of a fine or imprisonment: R v Fletcher; ex parte Kisch (1935) 52 CLR 248 at 257 per Evatt J; Gallagher v Durack (1983) 152 CLR 238 at 243 per Gibbs CJ, Mason, Wilson and Brennan JJ;

(b)   if a matter casts adverse imputations upon courts of justice, which if continued, are likely to impair their authority, then that is capable of constituting a contempt because it is necessary to maintain public confidence in the administration of the law: R v Dunbabin; ex parte Williams (1935) 53 CLR 434 at 447 per Dixon J; Gallagher at 243;

(c)   words used, or conduct engaged in, in the face of the Court, or in the course of proceedings, which are such as would interfere, or tend to interfere with the course of justice, may constitute a contempt: Parashuram Detaram Shamdasani v King-Emperor [1945] AC 264 at 268; Lewis v Ogden (1984) 153 CLR 682 at 688;

(d)   the wilful insult of a Judge in the course of proceedings necessarily interferes, or tends to interfere with the course of justice, however, mere discourtesy falls short of wilfully insulting conduct which is the hallmark of contempt: Lewis at 688-689;

(e)   disobedience of Court orders may constitute a contempt because the effective administration of justice is protected by a demonstration that court orders will be enforced. If Court orders could be disobeyed with impunity, individual litigants may suffer, and the whole administration of justice would be brought into disrepute: Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106, 107 per Gibbs CJ, Mason, Wilson and Deane JJ;

(f)   all contempt proceedings, whether brought for civil or criminal contempt, as those terms were used historically, are criminal in nature, and all charges must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 529 per Brennan, Deane, Toohey and Gaudron JJ;

(g)   the summary power of punishing contempt, that is by the Judge, himself or herself, formulating the charge, citing the contemnor and then hearing and disposing of the charge, should be sparingly used: Lewis at 693. It follows that a more deliberate procedure of bringing proceedings on due notice, which proceedings are properly formulated and particularised, is to be preferred;

(h)   a charge of contempt should specify the nature of contempt: Lewis at 693. It follows therefore, that proper particulars of the charge ought be provided. It also follows that a charge of contempt should not be duplicitous.”

30. The Court’s contempt power extends to third parties who, whilst not themselves bound by an order, conduct themselves so as to obstruct the course of justice (see Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 at [30]). Persons who are not personally bound by a court order, but who have knowledge of its terms and procure those who are bound by it to contravene or otherwise thwart the order, are directly liable for their independent contempt, committed in obstructing the course of justice (see ZHU v Treasurer of NSW [2004] HCA 56; (2004) 218 CLR 530 at [122]). A director such as Mr David Mahaffy can thus be guilty of contempt even in proceedings to which the director is not a party and where the order the subject of the contempt charge was made against the company and not him (see Sigalla v TZ Limited [2011] NSWCA 334).

31. Mr Jeffrey Mahaffy’s case must be considered in light of these principles. As discussed in Matthews v ASIC [2009] NSWCA 155 at [67], it is not necessary for Mr Jeffrey Mahaffy to prove beyond reasonable doubt the particulars of the various charges he pursued, in their entirety. Contempt may be established by evidence sufficient to constitute proof of the essential elements of a charge.

Mr Jeffrey Mahaffy’s case

32. Mr Jeffrey Mahaffy appeared unrepresented, because, he explained, he has exhausted his assets in the pursuit of his rights and resistance of the contemptuous course pursued against him by his brother and his company. He had earlier been legally represented and had various costs orders made in his favour, at various points in the course of the litigation they had pursued against him since 2008. Those orders have not been complied with and his efforts to enforce them frustrated, while his brother had conducted himself in a way which had brought the legal system into disrepute, without any sanction being imposed upon him by any of those before whom he had appeared.

33. On his case he has pursued these contempt proceedings, brought in 2010, long before Mr David Mahaffy became a bankrupt, in order to bring that ongoing, continuous and damaging conduct, which has been to his considerable financial detriment, to an end. He considers that only proper punishment will do so.

34. Mr Jeffrey Mahaffy explained the background to these proceedings to have been that he had been employed by D B Mahaffy & Associates Pty Limited, as an accountant. He ran its Wee Waa office from 1991 to 2005, while Mr David Mahaffy ran its Narrabri office. In May 2005 he suffered a stroke and was, as a result, off work for a considerable time. He had earlier not been paid all wages and statutory entitlements due to him, but had not pursued them, given the family relationship. In the result, he was then in a poor financial position.

35. Mr Jeffrey Mahaffy said that a workers compensation claim was made on his behalf and benefits were received, but they were not passed on to him. After 12 months’ absence, a gradual return to work was arranged, but he then had a falling out with his brother. In 2005 he demanded payment of what he was owed, which he claimed then amounted to some $300,000, with the result that in June 2005 his services were terminated and D B Mahaffy & Associates closed its Wee Waa office.

36. Mr Jeffrey Mahaffy said that he still did not then pursue his claims. Because of his own circumstances he was not able to leave Wee Waa and he was there approached by former clients, who asked him to perform accounting work and so he established his own business there. D B Mahaffy & Associates and Mr David Mahaffy then brought proceedings against him in the District Court, seeking damages of some $750,000. It was then that Mr Jeffrey Mahaffy pursued a cross-claim against them in those proceedings, for what he claimed he was owed.

37. In 2009, Mr Jeffrey Mahaffy sought to have the District Court claim struck out. Gibbs DCJ gave leave for a fourth amended statement of claim to be filed by the company, but made an indemnity costs order in Mr Jeffrey Mahaffy’s favour, for the costs he had incurred to that point, payable within six months. In September 2009, McLoughlin DCJ quantified those costs to be $134,000 plus $2,000 for the motion. D B Mahaffy & Associates was ordered to pay those costs, Mr David Mahaffy then no longer being a plaintiff, having earlier been removed by consent. The company’s claim was stayed until those costs were paid. They were not.

38. Instead, D B Mahaffy & Associates sought to have the costs orders set aside by various means, all of which failed. In March 2010, Mr Jeffrey Mahaffy also obtained an order from McLoughlin DCJ joining Mr David Mahaffy to the costs order. Various applications were pursued by the company and Mr David Mahaffy in the District Court and the Court of Appeal in relation to these orders, all of which failed, with the result that further costs orders were made in his favour against both the company and Mr David Mahaffy. They were also not complied with.

39. Mr David Mahaffy pursued further motions, some in identical terms, seeking to set aside or vacate orders made by McLoughlin DCJ, which were dismissed as an abuse of process, with further costs orders made in Mr Jeffrey Mahaffy’s favour. Mr David Mahaffy also refused to comply with subpoenas for production of documents to the District Court.

40. In July 2010, Mr David Mahaffy obtained an ex parte injunction in this Court, restraining the sale of a Narrabri property, over which Mr Jeffrey Mahaffy had been granted a mortgage, the day before the scheduled auction. The injunction was finally not continued and the property was sold. Mr David Mahaffy then obtained a further order, stopping the settlement of funds. He also filed a series of caveats over the property, to which Mr Jeffrey Mahaffy had to respond by filing lapsing notices. Eventually the stays were lifted and further costs orders made in Mr Jeffrey Mahaffy’s favour were also not complied with.

41. In the meantime, Mr Jeffrey Mahaffy had sought to enforce orders made in his favour by issuing garnishees on bank accounts. He recovered only some $2,300 in circumstances where, on his case, the company even now continues to trade and to shelter its income by operation of a trust account, in order to evade enforcement of the orders against it.

42. In June 2010, McLoughlin DCJ took the view that Mr David Mahaffy was using the company’s trust account to avoid the garnishee, on evidence that all of the company’s earnings and outgoings were going into the trust account, rather than its working or cheque accounts.

43. In July 2010, the ANZ accounts ceased being used and accounts were opened with Westpac. The only active account operated was a company trust account, into which income was deposited and payments of expenses made, including for Mr David Mahaffy’s personal expenses, such as home insurance and car insurance.

44. In February 2011, Mr Jeffrey Mahaffy’s cross-claim was heard in the District Court. Orders for some $390,333.43 were made in his favour against Mr David Mahaffy and the company on a joint and several basis on 24 February 2011. Those orders, as well as various costs orders, remain unsatisfied.

45. Mr Jeffrey Mahaffy’s case was that Mr David Mahaffy had deliberately refused to comply with orders made against he and his company and had organised his affairs and those of the company, in order to avoid payment of what he was owed. In July 2014, the company’s trust account revealed that it continued to trade, despite Mr David Mahaffy then being a bankrupt and the company having no directors. On his case, payments were then being made to meet Mr David Mahaffy’s personal expenses out of the company’s trust account. That had deprived him of the opportunity to enforce the court orders made in his favour against the company.

46. The contempt proceedings were brought at the time that Mr David Mahaffy was pursuing his appeal to the Court of Appeal. On Mr Jeffrey Mahaffy’s case, Mr David Mahaffy’s conduct in various proceedings had been both vexatious and contemptuous. He had repeatedly alleged, for example, that orders and decisions made against he and the company had involved bias and corruption on the part of the judicial officer who heard those cases, resulting in illegal orders.

47. Mr Jeffrey Mahaffy submitted that the course which Mr David Mahaffy had deliberately pursued had brought the legal system into disrepute, making a mockery of the Courts’ procedures and ignoring and avoiding the Courts’ orders, to his own advantage and that of his company and to his own considerable disadvantage.

48. Even though at one point Mr David Mahaffy had won a lottery worth $1.5 million, he was now a bankrupt and no longer in a position, it appeared, to pay what he owed Mr Jeffrey Mahaffy, having utilised his resources in futile endeavours to challenge court orders, by actions which were an abuse of process and involved contempt. Despite all of this, his company appeared still to trade and generate income, of which Mr David Mahaffy was receiving the benefit, rather than satisfying the Court’s orders, which now totalled over $600,000 in favour of Mr Jeffrey Mahaffy.

49. At the same time Mr David Mahaffy persisted in contemptuous conduct towards various judges, of whom he not only alleged bias, which he was entitled to do, but of whom he repeatedly spoke in intemperate and contemptuous language in various proceedings and documents which he had published, despite repeated warning that he could be dealt with for contempt, if he persisted.

50. The result of this ongoing conduct was submitted to have resulted in considerable hardship for Mr Jeffrey Mahaffy, who had not only been the victim of the failures to meet the orders made in his favour, but who had to respond to the repeated applications which had involved abuse and contemptuous conduct, in which Mr David Mahaffy had persisted.

Contempt is established

51. It is convenient to deal with the charges pressed in the further amended statement of charge under the same headings adopted by Garling J, in his March 2013 judgment, where Mr David Mahaffy’s application that the statement of charge brought against him be summarily dismissed, failed.

Money order charges – 1, 2, 3, 4, 5, 8, 9, 13

52. The validity of the various costs orders on which these charges rest was challenged before Garling J. His Honour concluded that the District Court had the power to make the orders which McLoughlin DCJ had made, as did Rein J (see the March 2013 judgment at [73] - [77]). His Honour also concluded that the enforcement provisions of the Civil Procedure Act2005 (NSW) do not preclude pursuit of contempt charges, when such valid money orders are not complied with (see at [78] - [84]).

53. Garling J also concluded that what was alleged in the charges now pressed was capable of establishing contempt, if the evidence established that Mr David Mahaffy’s conduct was deliberate, or intentional. His Honour observed that if this was proven by Mr Jeffrey Mahaffy, the evidentiary onus would then shift to Mr David Mahaffy, to justify the non-payment, for example, by establishing indigence at the time compliance with the order was required, which has continued (see at [87]).

54. I am satisfied that the onus which fell on Mr Jeffrey Mahaffy has been met in relation to various of the money order charges which he pressed. Mr David Mahaffy has not, however, sought to meet the evidentiary onus which fell upon him, to justify non-payment of the orders made against he and the company. Such a defence could have rested on evidence which demonstrates that the alleged contemnor is indigent or impecunious, but no such a defence was sought to be mounted. The mere fact of Mr David Mahaffy’s bankruptcy in 2014 does not satisfy that evidentiary onus.

55. By his failure to take the opportunity he has had to defend the charges, Mr David Mahaffy must be taken finally not to challenge the case advanced against him in this regard.

56. Further, on the evidence, both the company and Mr David Mahaffy had assets and income at relevant times, which could have been used to satisfy the courts’ orders. Instead, unsuccessful claims, found in some cases to have involved an abuse of process, were pursued and steps were taken to avoid assets or income being used to satisfy the Courts’ orders. The evidence established that the course which the company took was the result of decisions made by Mr David Mahaffy.

57. For the reasons which follow I am satisfied that the unchallenged evidence led by Mr Jeffrey Mahaffy has established the contempt alleged by charges 1 and 5, but not charges 2, 3 and 4.

58. Charge 1 is:

“David Mahaffy challenged the authority of the Court i.e. the authority of Judge McLoughlin and committed contempt of court by failing to have DB Mahaffy & Associates Pty Ltd pay $136,679.46 to Jeffrey Mahaffy pursuant to orders made on 4 September 2009 by the District Court of New South Wales.

Particulars:

a)   On 4 September 2009 His Honour SC McLoughlin DCJ in the District Court of NSW, made the following orders at the Hearing of Notice of Motion filed by the Defendant on 26 August 2009;

Pursuant to Section 98(4) Civil Procedure Act the Court orders Plaintiff to pay costs in the sum of $134,679.46 being total of costs payable pursuant to the order made.

The Court further orders by way of confirmation that Plaintiffs prosecution of the Claim be stayed until those costs are paid.

The Court orders Plaintiff to pay Defendants cost of this notice of Motion in the sum of $2000.00.

b)   David Mahaffy and DB Mahaffy & Associates Pty Ltd refused to comply with the Court orders of 4 September 2009 and failed to pay the costs ordered amounts.

c)   On 23 September 2009 the Plaintiff filed a Notice of Motion in the District Court of NSW, seeking for orders 1 & 3 made in Court on 4 September 2009 to be vacated. In response to the filed Notice of Motion the orders made on 4 September 2009 were not vacated and the ordered costs remained payable.

d)   On 28 September 2009 the Plaintiff filed an Amended Notice of Motion in the District Court of NSW, seeking for orders 1 & 3 made by Judge McLoughlin on 4 September 2009 to be vacated. In response to the filed Notice of Motion the orders made on 4 September 2009 were not vacated and the ordered costs remained payable. The Notice of Motion was eventually dismissed.

e)   On 4 March 2010 the Plaintiff filed a Notice of Motion in the District Court of NSW, seeking that execution of orders 1 & 3 made by Judge McLoughlin on 4 September 2009 to be stayed. In response to the Notice of Motion the orders made on 4 September 2009 were not stayed and the ordered costs remained payable.

f)   On 5 March 2010 the Plaintiff filed a further Notice of Motion in the District Court of NSW, again seeking that execution of orders 1 & 3 made by Judge McLoughlin on 4 September 2009 to be stayed. Upon hearing, the filed Notice of Motion was dismissed and the orders made on 4 September 2009 were not stayed and the ordered costs remained payable.

g)   On 17 June 2010 the Plaintiff filed a Summons in the Supreme Court of NSW (Court of Appeal), seeking leave to appeal the decision in relation to the gross sum cost order given by Judge McLoughlin on 4 September 2009 for $136,679.46 and be set aside on grounds of error of law. In response to the filed Summons the orders made on 4 September 2009 in the District Court of NSW were not stayed or set aside and the ordered costs remained payable. The Summons was eventually dismissed.

h)    On 20 July 2010 the Plaintiff filed a further Notice of Motion in the District Court of NSW, seeking that the costs orders made by Judge McLoughlin be stayed. Upon hearing, the filed Notice of Motion was dismissed and the orders made on 4 September 2009 were not stayed and the ordered costs remained payable.

i)    On 23 July 2010 the Plaintiff filed a duplicated Notice of Motion in the District Court of NSW, seeking that the costs orders made by Judge McLoughlin be stayed. Upon hearing, the filed Notice of Motion was dismissed and the orders made on 4 September 2009 were not stayed and the ordered costs remained payable.

j)    On 10 September 2010 the Plaintiff filed a Notice of Motion in the Supreme Court of NSW (Court of Appeal), seeking a stay of the cost order given in the District Court of NSW on 4 September 2009 for $136,679.46. Upon hearing, the filed Notice of Motion was dismissed and the District Court orders made on 4 September 2009 were not stayed and the ordered costs remained payable.

k)    On 23 September 2010 the Plaintiff filed a Summons in the Supreme Court of NSW (Equity Division), seeking a stay of the orders given in the District Court of NSW on 4 September 2009. Upon hearing, the filed Summons was dismissed and the District Court orders made on 4 September 2009 were not stayed and the ordered costs remained payable.

l)    On 22 October 2010 the Plaintiff filed a further Notice of Motion in the Supreme Court of NSW (Court of Appeal), seeking again a stay of the cost order given in the District Court of NSW on 4 September 2009. Upon hearing, the filed Notice of Motion was dismissed and the District Court orders made on 4 September 2009 were not stayed and the ordered costs remained payable.

m)    On 2 November 2010 the Plaintiff filed a further Notice of Motion in the District Court of NSW, seeking that the costs orders of 4 September 2009 be dismissed, alternatively to be stayed. Upon hearing, the filed Notice of Motion was dismissed and the orders made on 4 September 2009 were not dismissed or stayed and the ordered costs remained payable.

n)    On 10 November 2010 the Plaintiff filed a further Notice of Motion in the Supreme Court of NSW (Court of Appeal), seeking again a stay of the cost order given in the District Court of NSW on 4 September 2009. Upon hearing of the filed Notice of Motion the sought order was not made and the District Court orders made on 4 September 2009 were not stayed and the ordered costs remained payable.

o)    On 7 February 2011 the Plaintiff filed a further Notice of Motion in the District Court of NSW, again seeking a stay of the costs orders of 4 September 2009. Upon hearing, the filed Notice of Motion was dismissed and the orders made on 4 September 2009 were not stayed and the ordered costs remained payable.”

59. I am satisfied that the alleged contempt, as particularised, has been established beyond reasonable doubt on Mr Jeffrey Mahaffy’s unchallenged evidence, supported as it is by the documents in evidence.

59. Mr David Mahaffy was originally a plaintiff in the District Court proceedings, but was removed by consent, before McLoughlin DCJ made the order the subject of this charge, on 4 September 2009. That order quantified the amount of costs which Gibbs DCJ had earlier ordered the company to pay, within six months. While the evidence establishes that Mr David Mahaffy had knowledge of the terms of these orders, they did not bind him personally.

60. McLoughlin DCJ gave his judgment on 4 September 2009 at an ex parte hearing (see D B Mahaffy & Associates Pty Limited v Mahaffy (District Court (NSW), 4 September 2009, unrep). His Honour then accepted Mr Jeffrey Mahaffy’s case, that it was appropriate in the circumstances which had arisen in those proceedings, that the indemnity costs order made by Gibbs DCJ in February 2009 in his favour, be quantified by the Court. That sum was quantified to be $134,679.46, plus $2,000 for the costs of the motion. Garling J found that the order was valid. That finding has not been challenged. The terms of that order are unambiguous.

61. I am satisfied that the evidence establishes beyond reasonable doubt that the order was not complied with, despite the company’s unsuccessful pursuit of the various challenges it mounted, by motions later filed in the proceedings and appeal to the Court of Appeal, particularised in the charge. The evidence also establishes beyond reasonable doubt that the company’s failure to comply with the order was willful, and not merely casual, accidental or unintentional.

62. On the evidence Mr David Mahaffy has sought to thwart Mr Jeffrey Mahaffy’s recovery of these costs from the company. Apart from the sum of $2,300 Mr Jeffrey Mahaffy has recovered from the ANZ Bank pursuant to a garnishee and what followed from the sale of the Narrabri property over which he was later granted a mortgage, to which I will come, recovery which was resisted, the steps he has pursued to enforce the order have largely been unsuccessful.

63. In that regard it should be observed that the fact that the sale of a property at Narrabri pursuant to a mortgage granted Mr Jeffrey Mahaffy over the property, following unsuccessful endeavours by Mr David Mahaffy and the company to prevent that sale, or the utilisation of what was raised on the sale to satisfy part of what had been ordered in Mr Jeffrey Mahaffy’s favour, involved no impropriety on his part, as Mr David Mahaffy claimed in an affidavit sworn in the Equity Division proceedings on 1 April 2011.

64. Mr David Mahaffy was not only the sole director and shareholder of the company, but its controlling mind, at least until his bankruptcy in 2014. It was he who directed the company’s course at the relevant times. Acts necessary to be taken by him, if this order was to be complied with by the company, were not taken. Instead, he obstructed the company’s observance of the order which bound it, thereby flouting the authority of the District Court and obstructing the course of justice.

65. The evidence establishes that Mr David Mahaffy considered that the order ought not to have been made and involved error and bias on the part of McLoughlin DCJ. He caused the company to pursue the various attempts particularised, to have it set aside. Even when those attempts failed, the order was not complied with.

66. That course was taken even though Mr David Mahaffy had sworn a statutory declaration in 2008, in which he said that he was aware that the company was the plaintiff in the District Court proceedings; that he was familiar with its financial status; that it was the owner and operator of an accounting and tax agent professional practice which had been conducted in Narrabri for 22 years; and that it was able to meet any costs order made against it in the proceedings. The evidence does not establish that this position later changed, so as to prevent the company from complying with the order. To the contrary, on the evidence the company continues to trade.

67. Nor did Mr David Mahaffy seek to establish that it was unable to comply with the order. In evidence was transcript of proceedings where he had appeared for the company, for example on 14 May 2010, where he was asked by McLoughlin DCJ whether he wished to call evidence to explain why the costs orders had not been met. He declined to lead such evidence, but claimed that “[a]t the moment I don’t have any money, but I intend to appeal the matter”. He has not, however, led evidence in these proceedings to establish that the company was either then, or now, not in a position to comply with the order.

68. That the company could have complied with the order, as it was obliged to do in 2009, was evidenced not only by Mr David Mahaffy’s 2008 declaration, but also by what was later recovered by way of garnishee, by the payment of $15,000 made in 2010 as the result of further orders made by McLoughlin DCJ, to which I will come when dealing with the second charge, as well as by its conduct of the various proceedings in which it was legally represented and by evidence that even now it continues to trade.

69. The evidence establishes that instead of complying with the order, as it ought to have, the company’s resources were expended in the pursuit of the futile course which Mr David Mahaffy caused the company to take, even when the order was not stayed and the appeal against the order failed.

70. The end result of steps which finally involved an abuse of process on the company’s part, by its repeated pursuit of relief already sought and denied, was not only that this order was contravened, but that the company was in contempt of the District Court, as was Mr David Mahaffy himself. It was he who was directly responsible for the course which the company pursued, instead of complying with the order which bound it. The evidence establishes beyond reasonable doubt that thereby he was independently in contempt of the District Court, his intentional actions having resulted in the course of justice being obstructed, as it undoubtedly was, by the company’s failure to pay the costs it was bound to pay Mr Jeffrey Mahaffy.

71. It is also pertinent to note that on 19 November 2009, further directions were given by McLoughlin DCJ as to preparation for hearing of a motion filed by Mr Jeffrey Mahaffy on 12 November, seeking orders against Mr David Mahaffy personally, as to the costs which the company had been ordered to pay and which remained outstanding, apart from the sum which Mr Jeffrey Mahaffy had by then recovered under the garnishee. The order making Mr David Mahaffy personally responsible for the costs ordered was later made, but even then the balance of the costs ordered on 4 September 2009 were not paid, either by the company or by Mr David Mahaffy, despite the means which the evidence exhibits they then had to comply with these orders.

72. In the result, I am satisfied that the contempt alleged in this charge has been established.

73. Charge 2 is:

“David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by failing to have DB Mahaffy & Associates Pty Ltd pay $15,000 to Jeffrey Mahaffy within 3 days pursuant to orders made on 7 December 2009 by the District Court of New South Wales.

Particulars:

On 19 November 2009 His Honour SC McLoughlin DCJ in the District Court of NSW, made the following order at part hearing of the Notice of Motion filed by the Plaintiff on 28 September 2009;

order Plaintiff pay into court for the court to pay to Defendant the sum of $15,000 as a part payment of costs ordered by Judge Gibb.

b)   David Mahaffy and DB Mahaffy & Associates Pty Ltd refused to comply with the Court order of 19 November 2009 and failed to pay the ordered amount into court.

c)   On 7 December 2009 His Honour SC McLoughlin DCJ in the District Court of NSW, made the following order at Directions of the Plaintiffs Notice of Motion;

-    Note that the Plaintiff has not complied with the court order to pay the defendants’ costs of $15,000. Costs to be paid by 10am Thursday 10/12/2009. Plaintiff solicitor to advise the Defendant of the District Court Registry into which the outstanding costs have been paid.

d)    David Mahaffy and DB Mahaffy & Associates Pty Ltd refused to comply with the Court order of 7 December 2009 and failed to pay the ordered amount into court by 10/12/2009.”

75. I am not satisfied that this alleged contempt has been established on the evidence, despite the unchallenged evidence that this order was not complied with.

76. Again, the terms of the November 2009 order, which bound only the company, are not in issue. It is not ambiguous. Garling J found that it was valid and the evidence establishes beyond reasonable doubt that it was not complied with, as the result of steps deliberately taken by Mr David Mahaffy, who was aware of its terms, at a time when he remained the controlling mind of the company. It was he who directed the course which the company pursued, at a time when it could have complied with the order.

77. In his 17 June 2011 affidavit, Mr Jeffrey Mahaffy referred to evidence given by Mr David Mahaffy in the District Court in June 2010 that, in November and December 2009, he did not have the means to satisfy this order. On 8 June 2010, he deposed however, in an affidavit sworn in proceedings, to himself having net assets of some $431,900.

78. It appears that even if there was then any impediment to the company’s ability to comply with this order within the required timeframe (such as a cash flow problem, for example, of which there is no evidence) it was resolved. The transcript of the proceedings before the Court of Appeal on 23 September 2010 reveals that Mr Jeffrey Mahaffy then acknowledged that the $15,000 the subject of this order had been paid in February 2010.

79. In the result, I am not satisfied that the late payment of this money order provides a proper foundation for a finding of contempt. That requires a conclusion that Mr David Mahaffy’s actions in causing the company’s late payment of the sum which satisfied this order resulted in the course of justice being obstructed. I am not satisfied that this conclusion is properly open on the evidence, given that while the payment which satisfied the order was made late, it was made not a significant time later. Even if a finding of contempt were open in these circumstances, the payment would appear to have purged that contempt.

80. In the result, I consider that this charge must be dismissed.

81. Charge 3 is:

“David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by failing to pay $28655.83 to Jeffrey Mahaffy forthwith pursuant to orders made on 16 April 2010 by the District Court of New South Wales.

Particulars:

a)   On 16 April 2010 His Honour SC McLoughlin DCJ in the District Court of NSW, made the following order at the Hearing of Notice of Motion filed by the Defendant on 29 March 2010;

-    I order both Cross-Defendant’s pay the Cross-Claimant forthwith the sum of $28,655.83.

b)   David Mahaffy and DB Mahaffy & Associates Pty Ltd refused to comply with the Court orders of 16 April 2010 and failed to pay the costs ordered amount forthwith.

c)   On 17 June 2010 the Plaintiff filed a Summons in the Supreme Court of NSW (Court of Appeal), seeking leave to appeal the decision in relation to the gross sum cost order given by Judge McLoughlin on 16 April 2010 for $28,655.83 and be set aside on grounds of error of law. In response to the filed Summons the order made on 16 April 2010 in the District Court of NSW was not stayed or set aside and the ordered cost remained payable. The Summons was eventually dismissed.

d)   On 20 July 2010 the Plaintiff filed a Notice of Motion in the District Court of NSW, seeking that the costs orders made by Judge McLoughlin be stayed. Upon hearing, the filed Notice of Motion was dismissed and the order made on 16 April 2010 was not stayed and the ordered cost remained payable.

e)   On 23 July 2010 the Plaintiff filed a duplicated Notice of Motion in the District Court of NSW, seeking that the costs orders made by Judge McLoughlin be stayed. Upon hearing, the filed Notice of Motion was dismissed and the order made on 16 April 2010 was not stayed and the ordered cost remained payable.

f)   On 10 September 2010 the Plaintiff filed a Notice of Motion in the Supreme Court of NSW (Court of Appeal), seeking a stay of the cost order given in the District Court of NSW on 16 April 2010 for $28,655.83. Upon hearing, the filed Notice of Motion was dismissed and the District Court order made on 16 April 2010 was not stayed and the ordered cost remained payable.

g)   On 23 September 2010 the Plaintiff filed a Summons in the Supreme Court of NSW (Equity Division), seeking a stay of the orders given in the District Court of NSW on 16 April 2010. Upon hearing, the filed Summons was dismissed and the District Court orders made on 16 April 2010 was not stayed and the ordered cost remained payable.

h)    On 22 October 2010 the Plaintiff filed a further Notice of Motion in the Supreme Court of NSW (Court of Appeal), seeking again a stay of the cost order given in the District Court of NSW on 16 April 2010. Upon hearing, the filed Notice of Motion was dismissed and the District Court order made on 16 April 2010 was not stayed and the ordered cost remained payable.

i)    On 2 November 2010 the Plaintiff filed a further Notice of Motion in the District Court of NSW, seeking that the costs order of 16 April 2010 be dismissed, alternatively to be stayed. Upon hearing, the filed Notice of Motion was dismissed and the order made on 16 April 2010 was not dismissed or stayed and the ordered cost remained payable.

j)    On 10 November 2010 the Plaintiff filed a further Notice of Motion in the Supreme Court of NSW (Court of Appeal), seeking again a stay of the cost order given in the District Court of NSW on 16 April 2010. Upon hearing of the filed Notice of Motion the sought order was not made and the District Court order made on 16 April 2010 was not stayed and the ordered cost remained payable.”

82. I am also not satisfied that the alleged contempt, as particularised, has been established on the evidence, despite the unchallenged evidence that this order was also not complied with.

83. By a judgment given by McLoughlin DCJ on 16 April 2010, amongst other things both cross-defendants, Mr David Mahaffy and the company, were ordered to pay Mr Jeffrey Mahaffy forthwith the sum of $28,655.83 in respect of the costs of various motions. The terms of the order made, which bound both the company and Mr David Mahaffy, are not in issue. It is not ambiguous and was valid.

84. The evidence establishes beyond reasonable doubt that the order was also not complied with, as the result of steps deliberately taken by Mr David Mahaffy, at a time when both the company and Mr David Mahaffy had the means to comply with the order. He later filed an affidavit in the District Court proceedings as to his own assets and liabilities, which disclosed his net assets then to be some $431,900. Further, in May 2010 he offered to provide security over an unencumbered property located at Narrabri (which he said in an affidavit sworn in September 2010 was valued at $150,000, in respect of this order. That offer was accepted and the mortgage provider in June, as I will explain in relation to charge 4.

85. Again, the course taken to challenge this order on appeal, as well as by the various steps taken in the District Court, expended resources on a futile pursuit of what plainly also amounted, finally, to an abuse of process and a contempt of the District Court’s authority, by both the company and by Mr David Mahaffy.

86. Despite these conclusions, however, I am not satisfied that in all of the circumstances, the contempt in this charge has been established, given that while the amount ordered to be paid forthwith was not paid, as it ought to have been in April 2010, in May 2010, Mr David Mahaffy offered and Mr Jeffrey Mahaffy accepted, a mortgage over the Narrabri property, in satisfaction of what was outstanding under this order. In the result, I am not satisfied that the failure to comply with this order finally resulted in the course of justice being obstructed and that even if that conclusion were available, again, it seems that this contempt has been purged.

87. Accordingly, this charge must also be dismissed.

88. Charge 4 is:

“David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by failing to pay $28655.83 plus applicable interest to Jeffrey Mahaffy by 27 May 2010 pursuant to orders made on 14 May 2010 by the District Court of New South Wales.

Particulars:

a)   On 14 May 2010 His Honour SC McLoughlin DCJ in the District Court of NSW, made the following order at the partial hearing of Notice of Motion filed by the Defendant on 11 May 2011;

By consent I order Cross-Defendant D B Mahaffy to enter into a Mortgage in the form approved by Law Society of NSW in the sum of the costs order made against him by me on 16 April 2010 plus interest from that date in accordance with those prescribed by District court Act & Rules. Such Mortgage to be executed by Cross-Defendant D B Mahaffy and forwarded to Defendant / Cross-Claimant J Mahaffy by 4 pm on 18 May 2010 and such sum to be payable by 4 pm on 27 May 2010 and to include recitals and/ or terms for immediate possession should that sum not be paid.

b)   David Mahaffy and DB Mahaffy & Associates Pty Ltd refused to comply with the Court orders of 14 May 2010 and failed to supply the Defendant with a correct and active Registered Mortgage document by 18 May 2010 and did not pay any of the required sum by 4 pm on 27 May 2010.”

89. I am also not satisfied that the contempt alleged was established, despite the unchallenged evidence that this consent order was not complied with.

90. This order was made by way of resolution of a motion Mr Jeffrey Mahaffy had filed, seeking to have the defences to his cross-claim filed by Mr David Mahaffy and the company struck out for non-payment of the costs orders. An offer for security by way of a mortgage was made at the hearing before McLoughlin DCJ on 14 May 2010, to meet that application. The motion was resolved by the consent order made by McLoughlin DCJ, in the terms which the parties then agreed.

91. Garling J concluded that the order was valid, but there is, it seems to me, nevertheless a question as to its terms, given that the order does not identify any particular property over which a mortgage was to be given. In order for contempt to be established, the order must “... in unambiguous terms direct what is to be done” (see Iberian Trust Limited v Founders Trust Limited [1932] 2 KB 87 at 95 per Luxmoore J and Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 515 - 16 per Owen J, Windeyer J agreeing at 506). This order does not appear to satisfy that requirement.

92. On the evidence, Mr David Mahaffy then had the means to comply with the order. Even if it were concluded, however, that the terms of this order were unambiguous and that it was not complied with, the evidence establishing that neither the $28,655.83 was paid, nor the mortgage provided by 18 May 2010 as the order contemplated, it must also be considered that the evidence establishes that on 28 June 2010 a mortgage was given by Mr David Mahaffy over a property located at Narrabri, to secure the $28,655.83 costs order. That mortgage provided that Mr David Mahaffy would be in default if the costs order, plus interest at the court rate, was not paid on or by 4 pm on 27 May 2010, in which event Mr Jeffrey Mahaffy was entitled to take possession of the property and exercise a power of sale. In an affidavit sworn by Mr David Mahaffy on 23 September 2010, he swore that he understood that the mortgage provided for him to be in default if he did not pay the amount ordered by 27 May 2010.

93. The provision of that mortgage does not, in my view, leave open the conclusion that Mr David Mahaffy was in contempt, as alleged. The late provision of the mortgage does not permit the conclusion that Mr David Mahaffy’s actions resulted in the course of justice finally being obstructed. Even if it did, the provision of this mortgage appears to have purged the alleged contempt.

89. In the result, I consider that this charge must also be dismissed.

90. Charge 5 is:

“David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by failing to pay $25000.00 to Jeffrey Mahaffy within 7 days pursuant to orders made on 16 July 2010 by the District Court of New South Wales.

Particulars:

a)   On 16 July 2010 His Honour SC McLoughlin DCJ in the District Court of NSW made the following orders at the partial hearing of several Notice of Motion’s;

Prayer 3 of J Mahaffy’s Notice of Motion of 26/3/2010:

I make an order quantifying costs against D B Mahaffy in the same sum as quantified against the company.

I stay that order on conditions and I order that costs ordered by me on 5/3/2010 in favour of Defendant against David Mahaffy be quantified in sum of $134,679.46 and I stay execution of that conditional upon:-

D Mahaffy to pay J Mahaffy sum of $25,000 within 7 days

I order D Mahaffy pay costs of J Mahaffy of this Notice of Motion.

Notice of Motion of DB Mahaffy & Associates Pty Ltd of 28/9/2009:

I do not make the orders sought but stay until further order, conditional upon $25,000 being paid within 7 days (as above) by D B Mahaffy.

b)    David Mahaffy and DB Mahaffy & Associates Pty Ltd failed to comply with the Court orders of 16 July 2010 and did not pay the ordered amount of $25,000 to the Defendant within 7 days.”

96. The evidence establishes this charge, beyond reasonable doubt, as particularised. Before Garling J, Mr David Mahaffy contended that this order was not a final order, which he was obliged to obey, as Mr Jeffrey Mahaffy contended. His Honour concluded that not only was the order valid, Mr Jeffrey Mahaffy’s interpretation of the order was reasonably open, and accordingly, declined to summarily dismiss this charge, as Mr David Mahaffy urged (see at [94] of the March 2013 judgment).

97. Mr David Mahaffy did not appear to pursue his construction of the order at the final hearing. While inelegantly expressed, I, too, consider that the consent order made on 16 July 2010 was not ambiguous. It was final, quantifying the costs payable by Mr David Mahaffy in the sum of $134,679.46. Payment of that sum was stayed on the condition that $25,000 was paid by Mr David Mahaffy to Mr Jeffrey Mahaffy within 7 days. That payment was not made by Mr David Mahaffy who, on the evidence, had the means to comply with the order. In the result, he was accordingly then obliged by the order to pay the full amount of the costs assessed. The order was not complied with, despite he having the means to do so.

98. The evidence establishes beyond reasonable doubt that Mr David Mahaffy’s failure to comply with the order was deliberate and wilful. As I have already explained, the evidence does not establish that he was not then able to comply with the order. Mr David Mahaffy has not appeared to discharge the evidentiary onus which fell upon him in that regard.

99. In the result, I am also satisfied that the contempt alleged by this charge was established beyond reasonable doubt.

100. Charge 8 is:

“David Mahaffy challenged the authority of the Court, i.e. the authority of Justice Giles and Justice Sackville and committed contempt of court by failing to pay $22000.00 to Jeffrey Mahaffy within 7 days pursuant to orders made on 23 September 2010 by the Supreme Court of New South Wales.

Particulars:

a)   On 23 September 2010, before Justice Giles and Justice Sackville in the Supreme Court of NSW, the Plaintiff sought an adjournment of their filed Summons Seeking Leave to Appeal in order to allow the applicants further time to file and serve their evidence and particulars.

b)   On 23 September 2010 the Plaintiffs Summons was adjourned to 8 October conditional on the Applicants paying to the Respondent $22,000 by 30 September 2010.

c)   David Mahaffy and DB Mahaffy & Associates Pty Ltd failed to comply with the Court Directions and Orders of 23 September 2010 and did not pay the ordered amount of $22,000, nor any amount, to the Defendant by 30 September 2010.

d)   Since 30 September 2010, on various occasions and court appearances by David Mahaffy in the Supreme Court of NSW, particularly before Justice Giles, Justice Sackville and Justice White, David Mahaffy stated to the Court that he was not and never had been aware of the Court order for him to pay $22,000 to the Defendant and further that he has no responsibility to make such ordered payment. David Mahaffy continued to refuse payment of the ordered sum of $22,000 to the defendant.”

101. The unchallenged evidence also establishes this charge, as particularised, beyond reasonable doubt. The validity of the order made by the Court of Appeal when an appeal from McLoughlin DCJ’s orders was pursued, was not challenged before Garling J. Its terms are not ambiguous. It bound both the company and Mr David Mahaffy.

102. The transcript of the proceedings before the Court of Appeal on 23 September 2010 reveals the circumstances in which the order requiring Mr David Mahaffy to pay Mr Jeffrey Mahaffy $22,000 costs within 7 days was made, when the adjournment application which Mr Jeffrey Mahaffy opposed, was granted. The order was not complied with, with the eventual result that the application for leave to appeal was dismissed.

103. When he appeared in person before the Court of Appeal in December 2010, he and the company having failed to pay the $22,000 they had been ordered to pay, Mr David Mahaffy said that he had no money to comply with the order. That was contrary to the position which had been advanced in the Equity Division proceedings. He led no evidence before the Court of Appeal, or in these proceedings, to establish that he and the company did not then have the means to comply with the order. Such evidence would have been inconsistent with the evidence I have earlier referred to and the undertakings he had given in the Equity Division proceedings, on 23 September and 28 October.

104. It was on 23 September 2010, the same day that he was before the Court of Appeal, that Mr David Mahaffy and his company filed a summons in the Equity Division, seeking an order restraining the sale of the Narrabri property; a stay of the orders made in the District Court in September 2009, April 2009 and May 2010; an order setting aside the mortgage; and a declaration that Mr Jeffrey Mahaffy could not exercise a power of sale without first serving a s 57(2)(b) notice.

105. That day, upon Mr David Mahaffy’s counsel giving the usual undertaking as to damages, an ex parte injunction was granted by Hamilton J, restraining Mr Jeffrey Mahaffy from selling the Narrabri property. Leave was also given for the order to be served in the first instance by fax.

106. The transcript of the proceedings on 23 September before the Court of Appeal reveal that the solicitor then appearing for Mr David Mahaffy and the company, Mr Brendan, informed the Court that an ex parte injunction had been obtained to restrain the auction of that property, scheduled for the following day, for failure to serve a s 57(2)(b) notice. To that point it appears that Mr Jeffrey Mahaffy had not received notice of the injunction. Mr David Mahaffy was not then present in court. There was no suggestion then that he and the company were not in a position to meet the costs order which the Court of Appeal made. Such a suggestion would have been inconsistent with the undertaking given that day in the Equity proceedings.

107. On 1 October, Rein J refused to extend the injunction granted on 23 September and dismissed the application, ordering Mr David Mahaffy and his company to pay Mr Jeffrey Mahaffy $1,100 expenses, within 7 days. Another solicitor, Mr Smith, then appeared, but Mr David Mahaffy was again not present. The property was sold at auction on 8 October.

108. On 8 October, Mr David Mahaffy appeared for himself before the Court of Appeal. There was that day no appearance by Mr Jeffrey Mahaffy. Mr David Mahaffy explained that he was then seeking an extension of time to appeal the costs order made by McLoughlin DCJ for $136,000 and leave to appeal that order and a further costs order for $28,655, in respect of which Mr David Mahaffy said he intended to file a motion in the District Court, seeking to have McLoughlin DCJ re-open the orders made. The matter was adjourned to 3 December and Mr David Mahaffy was directed to file and serve an affidavit outlining what had occurred in the proceedings listed before McLoughlin DCJ.

109. On 25 October 2010, Handley AJA gave judgment on a motion filed by Mr David Mahaffy and the company, seeking a stay of the costs orders made by McLoughlin DCJ and a motion filed by Mr Jeffrey Mahaffy, seeking an order dismissing the summons for leave to appeal, (see Mahaffy v Mahaffy (Court of Appeal (NSW), Handley AJA, 26 October 2010, unrep). Handley AJA refused to stay the costs orders, observing that any stay would not prevent Mr Jeffrey Mahaffy exercising his power of sale under the mortgage, or completion of any sale. Mr Jeffrey Mahaffy’s application was dismissed, given the hearing fixed before the Court of Appeal on 3 December. Mr David Mahaffy was ordered to pay Mr Jeffrey Mahaffy’s costs of his motion. No order was made as to the costs of Mr Jeffrey Mahaffy’s motion.

110. On 28 October 2010, Mr David Mahaffy filed a further summons in the Equity Division seeking to restrain the sale of the Narrabri property and, alternatively, to have the proceeds of the sale put in Supreme Court Trust pending the hearing of the appeal. Mr David Mahaffy appeared in person before Slattery J. His Honour made ex parte orders abridging the time for service of the motion, summons and supporting affidavit and upon the giving of a further undertaking for damages, restraining Mr Jeffrey Mahaffy from dealing with the proceeds of sale.

111. Caveats were lodged over the Narrabri property by Mr David Mahaffy, who claimed an equitable interest in the property on the basis of “court orders for costs being in appeal, costs to be determined, mortgage given for appealable costs which may not be payable”. Other caveats were lodged by third parties, on the basis, for example of “registered proprietor consents to lodgement of this caveat over the property as security to the caveator for payment of a debt owed by the registered proprietor”.

112. On 2 November, Mr David Mahaffy and Mr Jeffrey Mahaffy appeared in person before White J in the Equity Division proceedings. Then Mr David Mahaffy relied on affidavit evidence to establish a foundation for his undertaking as to damages. White J then raised with Mr David Mahaffy that he appeared to be in contempt of the orders made by the Court of Appeal on 23 September and thus was not entitled to be heard. He also raised the need for Mr David Mahaffy to pay into court the mortgage debt, if his appeal was be entertained. Mr David Mahaffy’s position was that the Court of Appeal’s order was “incorrect” and that he would be “correcting” it.

113. For his part Mr Jeffrey Mahaffy relied on Mr David Mahaffy’s failure to pay the $1,100 expenses ordered by Rein J, submitting that his application involved an abuse of process and that he was in contempt of court, given his failure to pay what had been ordered by Rein J and the Court of Appeal. He explained that his financial position had been adversely affected by the actions taken by Mr David Mahaffy and his company and urged the view that he was entitled to enforce the District Court’s costs order, by sale of the property. In reply, Mr David Mahaffy claimed that his solicitor had not informed him of the costs order Rein J had made, but finally acknowledged that he was aware of the Court of Appeal’s order. Mr David Mahaffy then gave some evidence as to when he obtained information about orders made against him and from whom.

114. White J gave judgment on 2 November (see Mahaffy v Mahaffy [2010] NSWSC 1358), his Honour found that Mr David Mahaffy was aware of the Court of Appeal’s order of 23 September, but could not find on the evidence that Mr David Mahaffy was in contempt of court, given his evidence that he had not known of Rein J’s cost order, until the hearing on 2 November. His Honour concluded that Mr David Mahaffy’s application in the Equity Division proceedings was not barred by reason of non-compliance with that order, but he refused to restrain completion of the sale of the property, given that the orders made by Rein J contemplated completion of the sale which his Honour had refused to restrain.

115. White J also found that there was no doubt that Mr David Mahaffy was in breach of the mortgage, but took the view that there was a serious question to be tried that the power of sale had not arisen, given the failure to serve a s 57(2)(b) notice. In the result, however, he concluded that Mr Jeffrey Mahaffy ought not to be restrained from dealing with the proceeds of the sale, given that Mr David Mahaffy had not proffered an undertaking to pay him the moneys ordered by Rein J and had failed to make the payment ordered by the Court of Appeal. His Honour also considered that there was no proper explanation for why he had reneged on his obligation under the mortgage to pay the costs of $28,655.83.

116. In the result, his Honour refused to continue the injunction Mr David Mahaffy pressed, concluding that no reason had been established why Mr Jeffrey Mahaffy could not seek to execute against the proceeds of the sale of the property, moneys otherwise payable by Mr David Mahaffy. There was no appeal from that judgment.

117. Mr David Mahaffy, however, filed another motion in the District Court on 2 November 2010 seeking to have the costs orders made in September 2009 and April 2010 dismissed on the basis of false statements, or stayed, pending the hearing of the appeal or to have those costs assessed.

118. The transcript of the proceedings in the District Court reveals that the motion was pressed before McLoughlin DCJ on 9 November for both Mr David Mahaffy and the company. It had not been served, but was dealt with, along with other motions then before the Court. Then Mr David Mahaffy claimed that he did not have $25,000 to pay the “illegal” order which McLoughlin DCJ had made. The motion was dismissed and on Mr Jeffrey Mahaffy’s motion, Mr David Mahaffy and the company given a final opportunity to comply with the Court’s orders and subpoenas, failing which the defences to Mr Jeffrey Mahaffy’s cross-claims would be struck out.

119. Mr David Mahaffy’s application for leave to appeal was dismissed by the Court of Appeal on 3 December (see D B Mahaffy & Associates Pty Ltd v J R Mahaffy [2010] NSWCA 341). There it was observed that he had been represented when the matter first came on for hearing in September, when it had been accepted that some money was owed to Mr Jeffrey Mahaffy, for the costs of the District Court proceedings. Mr David Mahaffy had then sought an adjournment, in order to rectify deficiencies in the material he had placed before the Court of Appeal and to consider his allegation as to McLoughlin DCJ’s alleged bias. The adjournment had been granted on the condition that Mr David Mahaffy pay Mr Jeffrey Mahaffy within seven days the sum of $22,000 in respect of his wasted attendance at court and the further sum of $20,000, in part payment of the costs payable pursuant to the order of Gibbs DCJ,.

120. The Court noted that nothing had been paid to Mr Jeffrey Mahaffy and that Mr David Mahaffy had failed to provide the affidavit he had been ordered to provide, in relation to what had happened in the District Court, during the adjournment. It was also noted that when he appeared for himself at the December hearing, he had said that when the matter first came on for hearing (when the order as to costs was made) it had been known to his representatives that he had no money.

121. The Court concluded that leave to appeal should be refused, given the failure to make the payment ordered, Mr David Mahaffy’s claimed inability to make that payment and the overwhelming likelihood that a very large proportion of the costs orders that had been made in the District Court, could not be disputed.

122. In May 2011, Mr David Mahaffy wrote to the Court of Appeal seeking to have the appeal reopened. He was then advised that such an application could not be made by letter. On 18 May, he advised that he had paid the $22,000 ordered “by sale of proceeds of land sale”. He was advised on 23 May that he would have to file a summons for leave to appeal, together with an application for an extension of time, supported by an affidavit going into the matters dealt with at [9] of the Court of Appeal’s judgment, that is, his payment of the Court’s orders. No such application eventuated. Nor was evidence led in the proceedings that the payment had been made.

123. In the result, I am satisfied that this evidence establishes beyond reasonable doubt that the Court of Appeal’s order was also not complied with. The company’s failure to comply with the order was deliberate and wilful. It was the result of Mr David Mahaffy’s conduct at a time when, on the evidence he and the company had the means to comply with the order.

124. In the result, it must be concluded that the contempt alleged has been established, Mr David Mahaffy’s conduct in the case of this charge, clearly having had the effect of obstructing the course of justice.

125. If, as he claimed in his May 2010 letter, the $22,000 was later paid, it may be that this contempt has also thereby been purged. That is a matter which cannot be determined at this stage of those proceedings.

126. For now it must be concluded that this charge was also established.

127. Charge 9 is:

“David Mahaffy challenged the authority of the Court, i.e. the authority of Justice Rein and committed contempt of court by failing to pay $1100.00 to Jeffrey Mahaffy within 7 days pursuant to orders made on 1 October 2010 by the Supreme Court of New South Wales.

Particulars:

a)   On 23 September 2010 the Plaintiff filed a Summons in the Supreme Court of NSW, seeking an injunction over the sale of X XXXXX Street Narrabri, being the property previously mortgaged by David Mahaffy to Jeffrey Mahaffy, for which he was in default of such Mortgage.

b)   On 23 September 2010 the Summons was heard urgently on an Ex-parte basis and a temporary injunction stopping the sale of the property was granted.

c)   On 1 October 2010 the Plaintiffs Summons filed 23 September 2010 was heard before Justice Rein in the Supreme Court of NSW with the Summons application being dismissed in full.

d)   On 1 October 2010 His Honour Justice Rein in the Supreme Court of NSW made the following orders;

Plaintiffs application that the Defendant be restrained from selling the property at X XXXXX Street Narrabri, known as Lot 5 Section XX DP XXXXX X up to and including 1 October 2010 be dismissed.

Plaintiff to pay the defendant $1100 for expenses of the application within seven days of today’s date.

e)   David Mahaffy failed to comply with the Court order of 1 October 2010 and did not pay the court ordered amount of $1,100 to the Defendant within 7 days.

f)   Since 8 October 2010, on various occasions and court appearances by David Mahaffy in the Supreme Court of NSW, particularly before Justice White, David Mahaffy repeatedly stated to the Court that he was not and never had been aware of the Court order for him to pay $1,100 to the Defendant. David Mahaffy still continues to refuse payment of the ordered sum of $1,100 to the defendant.”

128. As I have already explained, White J dealt with the claim that the failure to comply with Rein J’s order involved contempt, concluding on Mr David Mahaffy’s evidence that the contempt then alleged had not been proven, given that the evidence did not establish Mr David Mahaffy’s knowledge of the order made by Rein J, before the seven days specified in the order expired.

129. The evidence now led establishes beyond reasonable doubt that Mr David Mahaffy became aware of the order, when he appeared before White J on 2 November and still the order was not complied. On the evidence that breach was deliberate, occurring as the result of the course Mr David Mahaffy’s deliberately pursued at a time when, as I have explained, there is no question on the evidence as to his ability to comply with the order, once it came to his attention, given the affidavit he served as to his own assets and the undertaking given in these proceedings.

“Giles JA: Mr Mahaffy be quiet or you will be removed. The opportunity I gave you is being abused. It is not an opportunity to abuse the District Court Judge. We will not hear you further in my opinion”

155. The particulars continued:

“g)    David Mahaffy provided a letter to the District Court, dated 11 January 2011, which contained the following statements and allegations;-

i.    At paragraph 1,

“... Please have Judge McLoughlin removed from all cases as he is under investigation at the moment and there is sufficient information on hand for biased case and compensation in excess of $500,000.00 will be sought.”

h)    David Mahaffy filed a Notice of Motion in the District Court of NSW on 4 February 2011, which sought orders that contained the following statements and allegations;-

i.    At page 2 order 5,

“The Notice of Motion originally to he heard on 9/11/2010 and reheard on 25/1/2011 be heard on 14/2/2011 on basis that Judge McLoughlin advised he would not hear them and to get another Judge to hear them. Evidence of bias.”

ii.   At page 2 order 7,

“Stay of cost orders given by Judge McLoughlin on 4/9/2010 on basis of biased. Cost orders to be hear by unbiased Judge.”

iii.     At page 2 order 8,

“Taking David Mahaffy individual out of all cost orders as he is not a party to these proceedings. Put into cost orders illegally by biased Judge.”

i)    David Mahaffy filed an affidavit for use in District Court of NSW proceedings, sworn 4 February 2011, which contained the following statements and allegations;-

i.    At page 4 point 17,

“All cost orders should be heard by another Judge due to bias.... This case has been biased since Judge McLoughlin started and should be reheard in its entirety.”

ii.    At page 4 point 18,

“Judge McLoughlin has joined me illegally to these proceedings...”

j)    David Mahaffy provided a letter to the NSW Court of Appeal, dated 14 March 2011, which contained the following statements and allegations;-

i.    At page 1 point 4,

“Judge McLoughlin is under investigation by the judicial system (Ernie Smack)(sic) there is substantial evidence to show biased, and unwarranted and incorrect cost orders. There is evidence to show tampering of court tapes before transcripts section. Judge McLoughlin has made unwarranted and biased remarks about me in open court and will be sacked and compensation given to me. The District Court is very corrupt at the moment and a full judicial and government enquiry will show this.”

ii.    At page 1 point 7,

“It has been demonstrated in all cost orders given by Judge McLoughlin in the District court that they are grossly incorrect..”

iii.    At page 2 point 10,

“.Also this matter cannot be heard until the full investigation by judicial system is finished which will show gross corruption and bias by Judge McLoughlin with gross incorrect cost orders.”

k)    David Mahaffy filed an affidavit for use in Supreme Court of NSW proceedings, sworn 1 April 2011, which contained the following statements and allegations;-

i.    At page 2 point 21,

“The Judge McLoughlin is under investigation at the moment and had shown serious signs of bias.”

ii.   At page 3 point 26,

“On the court hearing of 9 November 2010 before Judge McLoughlin he showed sign of total bias with remarks made and has even tampered with the tapes so as not to incriminate himself further.”

iii.   At page 3 point 33,

“Also the Judge is biased in this case and will have reheard.”

156. Mr David Mahaffy’s application for leave to appeal having been refused as it was, he ought to have desisted from his allegations of bias and error. Instead, he continued to advance allegations, in intemperate terms, that McLoughlin DCJ was not only biased and had erred, but that he had acted illegally, that he was also corrupt and even that he had tampered with tapes, in order not to incriminate himself.

157. On the evidence such allegations were also repeated in an application for legal aid for these proceedings, which was refused.

158. These were allegations of the most serious kind. Nothing in the evidence led in these proceedings suggests that they have any proper foundation. Mr David Mahaffy has not taken the opportunity available to him in these proceedings to establish that they did.

159. It must be concluded that the evidence establishes beyond reasonable doubt that Mr David Mahaffy pursued a sustained, baseless and deliberate attack on the impartiality, honesty and integrity of the Judge, which amounted to contempt.

160. In the result, I am also satisfied that the contempt alleged in this charge has been established,

161. Charge 10 is:

“David Mahaffy challenged the authority of the Court, i.e. the authority of Justice Giles and Justice Sackville and committed contempt of court by knowingly misleading the Supreme Court of New South Wales on 8 October 2010 by falsely informing the court that the District Court of New South Wales had agreed to and was going to revisit old cost orders and judgments on 9 November 2010 that were the subject of the current Supreme Court Summons application.

Particulars:

a)   On 8 October 2010 David Mahaffy appeared before Justice Giles and Sackville in the Supreme Court of NSW for hearing of his Summons Seeking Leave to Appeal.

b)   The Plaintiffs had not paid $22,000 to the Defendant by 30 September 2010 and the Summons before the Supreme Court of NSW on 8 October 2010 should respectively not have been heard.

c)   On 8 October 2020 David Mahaffy failed to advise the Court that he had not paid the $22,000 to the Defendant, pursuant to Court orders and a condition of adjournment granted on 23 September 2010. Further, David Mahaffy failed to inform the Court that no evidence and required material had been filed and served.

d)   On 8 October David Mahaffy falsely advised the Court that the matters that were currently of concern for the Summons Seeking Leave to Appeal were agreed to be re-visited by His Honour Judge McLoughlin in the District Court of NSW the very day before on 7 October 2010 and that there may be no need for the Appeal application as result.

e)   On 8 October 2010 David Mahaffy advised their Honours in the Supreme Court that the revisit of the concerned cost orders was to be heard by Judge McLoughlin in the District Court of NSW on 9 November 2010. David Mahaffy further advised that he would be filing a Notice of Motion in the District Court of NSW within the next week in relation to revisiting the old cost orders.

f)   David Mahaffy purposely misled the Supreme Court of NSW by his incorrect statements made on 8 October 2010 as no orders or agreement was made in the District Court of NSW by Judge McLoughlin to revisit old cost orders and judgments.

g)   There was never any revisit of old District Court cost orders as indicated by David Mahaffy. All of the orders sought by David Mahaffy within his Notice of Motion of 2 November 2010 were heard by His Honour Judge McLoughlin in the District Court of NSW on 9 November 2010 and all orders sought were dismissed.”

162. At [130] Garling J observed that intentionally misleading a court is conduct which may interfere with the course of justice, given that the administration of justice depends on litigants telling the truth as to what has happened of relevance to the proceedings, when they are before the Court. He concluded that this charge, taken with the particulars, was capable of constituting a contempt of court.

163. On Mr Jeffrey Mahaffy’s evidence, on 23 September 2010 he appeared for himself and the company and Mr David Mahaffy were represented by newly engaged legal representatives. On Mr Jeffrey Mahaffy’s unchallenged evidence, they had engaged ten separate sets of legal representatives to that point, to represent them in the various proceedings which they had pursued against him. He objected to the adjournment application, of which he had not had prior notice. The adjournment was, nevertheless, granted on terms as to costs and the filing of specified evidence.

164. On 1 October before Rein J, the legal representative appearing for the company and Mr David Mahaffy informed his Honour that they had not paid the $22,000 ordered by the Court of Appeal; that they did not propose to pay that sum and expected their summons to be dismissed on 8 October.

165. The transcript of the proceedings before the Court of Appeal on 8 October reveals that Mr David Mahaffy appeared personally, he then explained, because he had run out of money. There was no appearance by Mr Jeffrey Mahaffy that day. The $22,000 ordered had not been paid, a matter to which Mr David Mahaffy made no reference. He informed the Court that he intended to file a motion in the District Court, asking McLoughlin DCJ to set aside the costs orders the subject of the appeal, as well as other cost orders and that the matter was listed again on 9 November. The proceedings were adjourned for hearing on 3 December, Mr David Mahaffy being required to file an affidavit as to what transpired in the District Court, before the resumed hearing.

166. Mr David Mahaffy filed a motion on 2 November, seeking amongst other things, orders that the cost orders made in September 2009 and April 2010 be dismissed, or stayed until after the hearing of the appeal, or assessment by a costs assessor; and that the costs orders made against Mr David Mahaffy personally be “dropped” or stayed. Those orders were not made.

167. The order which was made on 9 November, as Mr Jeffrey Mahaffy deposed in an affidavit sworn on 25 January 2011, was that the defence to Mr Jeffrey Mahaffy’s cross-claim would be struck out, unless $28,655.83 costs were paid and missing documents identified in Mr Jeffrey Mahaffy’s 7 October affidavit were produced. Mr Jeffrey Mahaffy further deposed that the costs were not paid and the documents were produced.

168. In my view, while Mr David Mahaffy did not reveal to the Court of Appeal on 8 October, as he ought to have, that the $22,000 costs had not been paid as ordered, the evidence does not establish beyond reasonable doubt that Mr David Mahaffy was in contempt of court, having misled the Court of Appeal, as claimed in this charge. That is because the allegation rests on his advice that “the District Court of New South Wales had agreed to and was going to revisit old cost orders and judgments on 9 November 2010 that were the subject of the current Supreme Court Summons application”. The transcript of the proceedings on 23 September, fairly read, does not permit that conclusion. Mr David Mahaffy informed the Court of his intention to file a further motion in the District Court proceedings. A motion in terms foreshadowed on 8 October was filed on 2 November. It was returnable on 9 November, when it was dealt with.

169. In my view, those events are incapable of establishing the contempt alleged. It follows that this charge must be dismissed.

170. Charge 11 is:

“David Mahaffy challenged the authority of the Court, i.e. the authority of Justice White and committed contempt of court by making statements in affidavits tendered to the court that Justice White has made “incorrect orders” and “illegal orders” and is also biased towards him.

Particulars:

a)    David Mahaffy filed a Notice of Motion in Supreme Court of NSW on 10 November 2010, which sought orders that contained the following statements and allegations;-

i.     At page D order 15,

“No hearing of Notices of Motion in Supreme Court by Judge White, as twice verbal altercation with Judge White.”

b)   David Mahaffy provided a letter to the NSW Court of Appeal, dated 14 March 2011, which contained the following statements and allegations;-

i.    At page 1 point 6,

“In the event of matter going to hearing I will object to certain Judges having the matter in Supreme Court due to bias as well.”

c)   David Mahaffy provided a letter to the Supreme Court of NSW, dated 29 June 2011, which contained the following statements and allegations;-

i.    At page 1 paragraph 1,

“I have had two runs with Judge White gave two incorrect decisions. Judge White is biased towards me and my company and as such I wish to have this morning’s hearing reheard before another Judge, and a stay on his order. I will not allow Judge White to appear before me ever again and a full investigation will be conducted into this matter. Please organise this matter to be reheard please note a full investigation into this matter will be organised into biased Judges.”

d)   David Mahaffy provided a letter to the Supreme Court of NSW, dated 29 July 2011, which contained the following statements and allegations;-

i.    At page 1 paragraph 1,

“On 29/6/2010 a biased Judge White heard the matter and dismissed the applicant company’s application to set aside the creditor’s statutory demand no reason.”

ii.    At page 1 paragraph 2,

“I have had Judge White before me on two other cases with gross bias being shown, to the extent of other solicitors making comment as well. Of the two other case hearings before Judge White he has dismissed my cases without legitimate reason and in the end verbal altercation occurred. I was to not allow to Judge White appear before me again and am organising a full enquiry before the Judicial System and a Government enquiry and will be seeking his dismissal. On 26/6/2011 I had an agent solicitor appear for my company and myself (Bob Watson). Bob Watson is a senior solicitor and very experienced and he noted to me major bias on behalf of Judge White. I intend to take legal action against Judge White myself. On the 26/6/2011 for matter 2010/429076 Judge White dismissed my case illegally as it was not even set down for hearing, he should have disqualified himself from hearing any of my matters as from altercations from two previous cases. In those cases extreme bias and corruption being evident. Judge White dismissed current subpoenas without any logical reason.”

iii.    At page 2 paragraph 1,

“I am not applying and spending money I do not have to cover a corrupt Judge.”

iv.    At page 2 paragraph 2,

“In respect to matter 2011/108012 it is set down for directions hearing before corporation Judge on Monday 1/8/2011 at 10am. This matter is to be adjourned to a later date with non biased Judge... Action will be taken against the Supreme Court if this does not happen. I will be seeking compensation from Judge White after the full investigation is finished.”

v.    At page 2 paragraph 3,

“The investigation will involve the two previous cases heard by Judge White and a case of bias will be shown.”

vi.    At page 2 paragraph 4,

“Concluding I am seeking case 2010/429076 which has been illegally dismissed by a biased Judge to be reinstated and reheard by another Judge.”

vii    At page 2 paragraph 5,

“Thirdly I will not allow Judge White to appear before me again, as after investigation it will show gross bias and corruption.”

171. Garling J concluded that the words particularised in this charge were capable of being held to amount to a contempt (see at [135] - [137] of the March 2013 judgment). Allegations of bias and error and even corruption on the part of a judge, may properly be advanced by a litigant, in appropriate terms, on proper grounds and for a proper purpose. Otherwise, such allegations may interfere with the administration of justice, capable as they are of demeaning the judiciary generally and deterring individual judges from discharging their allocated judicial duties, in accordance with the judicial oath which binds all judges.

172. Here, the evidence establishes that Mr David Mahaffy went further than a proper pursuit of a view that White J had erred and was biased against him permitted. The intemperate language in which those views were communicated was clearly not appropriate, but alone would not have constituted contempt. However, when considered together with the allegations of illegality and corruption which were also advanced on the evidence without any proper basis at all, it must be concluded that the evidence establishes beyond reasonable doubt that the alleged contempt was established.

173. Mr David Mahaffy has not availed himself of the opportunity to lead any evidence which reveals that he had, in fact, any basis for the allegations which he pursued. The evidence of what occurred in the proceedings before White J establishes that there was no such evidence available.

174. In the result, it must also be concluded that the alleged contempt in this charge was also established beyond reasonable doubt.

The subpoena charge - 6

175. As Garling J discussed at [103] - [108] of his March 2013 judgment, a deliberate failure to comply with a subpoena is capable of constituting a contempt, if not the result of a casual, accidental or unintentional breach of the Court’s orders, given the provisions of Rule 33.12 of the Uniform Civil Procedure Rules 2005 (NSW) (see Markisic v the Commonwealth Bank of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737 at [61] - [63]).

176. Charge 6 provides:

“David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by failing to comply with Subpoena to Produce served on him, that was filed on 5 July 2010 and returnable on 16 July 20210 in the District Court of New South Wales.

Particulars:

a)   On 5 July 2010 Subpoena’s(sic) to Produce with orders to David Mahaffy and DB Mahaffy & Associates Pty Ltd were filed in the District Court of NSW for the Defendant. The Subpoenas were returnable on 16 July 2010.

b)   On 8 July 2010 a letter was provided by DB Mahaffy & Associates Pty Ltd and David Mahaffy to the Defendant, confirming receipt of the two Subpoena to Produce and advising of their refusal to comply with the Subpoena’s(sic).

c)   On 16 July 2010 both David Mahaffy and DB Mahaffy & Associates Pty Ltd failed to comply with the Court and no documents were produced to the District Court of NSW with respect to the Subpoenas to Produce that had been served on them prior and were returnable that day.

d)   On 16 July 2010 in the District Court of NSW, David Mahaffy advised the court that he would not supply records in relation to the Subpoena’s(sic) to Produce and clearly indicated that he would not be complying with the Subpoena’s served on him and his company.

e)   On 16 July 2010 His Honour Judge McLoughlin in the District Court of NSW, made the following orders;

Subpoena of 5/7/2010 addressed to DB Mahaffy & Associates Pty Ltd and D B Mahaffy personally is returnable before me on 23/7/2010 at 10am.

I grant leave to file Notice of Motion setting aside subpoena’s(sic) returnable 23/7/2010 and any affidavits in support be served by 4pm 21/7/2010.

f)   On 23 July 2010 no documents were produced to the District Court of NSW by either DB Mahaffy & Associates Pty Ltd or David Mahaffy with respect to the Subpoenas to Produce that had been served on them prior and were returnable again that day. Further, Mr David Mahaffy failed to appear at Court on 23 July 2010 to answer why no records had been produced in accordance with Court Orders of 16 July 2010.

g)   On 23 July 2010 His Honour Judge McLoughlin in the District Court of NSW, made the following orders;

Note: Cross-Defendants have not produced documents under subpoena

Stood over to list judge on 27/7/2010 at 9.30am for return of subpoena

Affidavits addressing failure to appear and why such failure to comply with orders should not be dealt with as contempt are to be filed and served by 4pm on 26/7/2010.

h)    The plaintiff failed to comply with the court orders of 23 July 2010 and no relevant affidavits from the Cross-Defendants were filed or served by 26 July 2010.

i)    On 27 July 2010 no documents were produced to the District Court of NSW by either DB Mahaffy & Associates Pty Ltd or David Mahaffy with respect to the Subpoenas to Produce that had been served on them prior and were returnable once again that day. Further Mr David Mahaffy provided no reasonable or satisfactory excuse to the court to explain the non compliance of court orders with respect to the Subpoenas to Produce of 5 July 2010 or his non attendance on the previous court occasion.

j)    On 27 July 2010 His Honour Judge McLoughlin in the District Court of NSW, made the following orders;

Re: Subpoena for production of documents issued on D B Mahaffy and non compliance with that subpoena:- If those documents are not provided within 10 days (on 6/8/2010) to this court the defence to Cross-claim of both 1st and 2nd Cross-Defendants will be struck out.

Return of subpoena stood over before me on 6/8/2010 at 9.30am.

k)    On 6 August 2010, David Mahaffy failed to attend Court again and there was no appearance for either of the Cross-Defendants for the matters in the District Court of NSW.

l)    On 6 August 2010a box of documents had been couriered by DB Mahaffy & Associates Pty Ltd to the court, but it was noted that only limited documents as requested under subpoena were provided with many records and documents not produced by DB Mahaffy & Associates Pty Ltd and David Mahaffy with respect to the subpoena’s(sic) of 5 July 2010. The Subpoena’s(sic) to Produce had still not been complied with.

m)   On 6 August 2010 His Honour Judge McLoughlin in the District Court of NSW, made the following orders;

J Mahaffy maintains a number of documents subpoenaed are not produced by either DB Mahaffy & Associates Pty Ltd or D B Mahaffy

Return of subpoena stood over part heard before me on 12/8/10 at 9.30am

I request Registrar to write and fax to DB Mahaffy & Associates Pty Ltd and D B Mahaffy to advise those documents are not produced and confirm it may be struck out if not produced and confirm why not done

n)    On 12 August 2010 David Mahaffy failed to attend Court once again and there was no appearance for either of the Cross-Defendants for the matters in the District Court of NSW.

o    On 12 August 2010 a folder of additional documents had been couriered by DB Mahaffy & Associates Pty Ltd to the court, but it was noted by the court that many records and documents were still not produced by DB Mahaffy & Associates Pty Ltd and David Mahaffy, or were either incomplete or an unsatisfactory copy / version of documents with respect to the subpoena of 5 July 2010. The Subpoena’s(sic) to Produce had still not been complied with in full.

p)    On 12 August 2010 His Honour Judge McLoughlin in the District Court of NSW, made the following orders;

D B Mahaffy called this morning and then at 3.20 this afternoon and no appearance

I direct J Mahaffy serve affidavit by 4pm on 20/8/2010 setting out how subpoena has not been complied with and the Cross-Defendants in reply by 4pm 27/8/2010.

I order the Cross-Defendants pay Cross-claimants costs of attendance at this court on 27/7/2010, 6/8/2010 and 12/8/2010 on an indemnity basis because of failure to comply with subpoena and failure to attend.”

177. I am also satisfied that the unchallenged evidence proves the contempt alleged beyond reasonable doubt.

178. On 8 July 2010, Mr David Mahaffy wrote to Mr Jeffrey Mahaffy as managing director of the company, asking what the documents he had sought related to and advising that he would not be producing the documents subpoenaed, because “no valid reason exists”. Mr Jeffrey Mahaffy replied on 9 July, advising that the documents related to the claims advanced in his cross-claim; that unless set aside the subpoenas had to be complied with; and that failure to do so could constitute a contempt.

179. Mr Jeffrey Mahaffy’s unchallenged evidence was that the matter was before the District Court on 16 July, when leave was given to file a motion to set the subpoenas aside. The matter was adjourned to 23 July, when neither the company nor Mr David Mahaffy appeared. The matter was adjourned to 27 July, when no documents were produced and the matter was adjourned to 6 August, when there was again no appearance, but a box of documents was sent to Court by courier.

180. Mr Jeffrey Mahaffy inspected the documents produced, which he considered failed to satisfy the subpoena in identified respects. The matter came into the list on 12 August, when there was again no appearance for the company or Mr David Mahaffy, but additional documents were provided by courier. On Mr Jeffrey Mahaffy’s inspection, there had still not been complete production.

181. Mr Jeffrey Mahaffy then swore an affidavit deposing that the subpoenas had still not been complied with, in identified respects. On 9 November 2010, as earlier explained, McLoughlin DCJ gave the company and Mr David Mahaffy a final opportunity for all documents to be produced and the Court’s orders complied with, failing which the defences would be struck out. Failure to comply with that order later led to the defences being struck out and orders being made in favour of Mr Jeffrey Mahaffy.

182. There has been no explanation advanced in these proceedings by Mr David Mahaffy for the continuing failure to produce documents subpoenaed in the District Court proceedings.

183. In the circumstances, it must be concluded that the evidence establishes beyond reasonable doubt that those failures were wilful and involved contempt. Mr David Mahaffy has not availed himself of the opportunity to seek to establish that they were casual, accidental or unintentional, or to otherwise defend this charge.

184. In the result, it must also be concluded that the contempt alleged in this charge has also been established beyond reasonable doubt.

The injunction charge - 12

“David Mahaffy challenged the authority of the Court, i.e. the authority of the District Court of New South Wales and committed contempt of court by filing of two unsuccessful Summons applications in the Supreme Court of New South Wales, seeking injunction to stop the sale and settlement of sale of property as well as the filing of two Caveats with the Land & Property Management Authority to renege on a Mortgage offered and consented by him for satisfaction of a cost order in favour of Jeffrey Mahaffy.

Particulars:

a)    On 14 May 2010 before Judge McLoughlin in the District Court of NSW, David Mahaffy voluntarily offered a Mortgage over his vacant land at X XXXXX Street Narrabri NSW as security for a District Court cost ordered amount due by him to the Defendant.

b)   On 14 May 2010 David Mahaffy consented to the terms of the Mortgage and its conditions with respect to the cost order payable by him as determined in the District Court of NSW.

c)   David Mahaffy defaulted on the Mortgage offered by him over his properly at 4 Adams Street Narrabri and as result the Defendant being the Mortgagee was entitled to sell the property to recoup costs.

d)   David Mahaffy refused to allow the Defendant to act on its rights as Mortgagee to the Mortgage agreed by David Mahaffy in the District Court of NSW.

e)   On 23 September 2010 the Plaintiff obtained from the Supreme Court of NSW on an Ex Parte basis a temporary injunction stopping the sale of the property X XXXXX St Narrabri, that was set for Auction sale the very next day.

f)   On 1 October 2010 the applicants Summons that obtained a temporary injunction on the sale of X XXXXX St Narrabri was dismissed with costs payable by the Plaintiff.

g)   On 28 October 2010 the Plaintiff obtained from the Supreme Court of NSW on an Ex Parte basis a temporary injunction stopping the settlement of the property X XXXXX St Narrabri, that was set for 5 November 2010.

h)    On 2 November 2010 the applicants Summons that obtained a temporary injunction on the settlement of X XXXXX St Narrabri was dismissed with costs payable by the Plaintiff.

i)    Since 2 November 2010 David Mahaffy has prepared and lodged with the LPMA five separate Caveats, which have had the effect of stopping settlement and transfer under sale of the property of X XXXXX Street Narrabri, pursuant to Mortgage offered and consented to by David Mahaffy in the District Court of NSW.”

185. Garling J took the view that that the contempt alleged in this charge fell within the principle discussed in Australasian Meat Industry employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, that disobedience to Court orders may amount to contempt (see at [144] - [145]). He considered two charges which concerned the matters dealt with in this charge and required Mr Jeffrey Mahaffy to elect which of them he wished to proceed with.

186. The mortgage given over the Narrabri property following the consent orders made by McLoughlin DCJ in May 2010 and Mr David Mahaffy’s finally unsuccessful endeavours to prevent Mr Jeffrey Mahaffy’s exercise of his rights under that mortgage have earlier been dealt with. In short summary, the sequence of events was that the costs orders made by McLoughlin DCJ not having been complied with, Mr Jeffrey Mahaffy sought to have the defences filed to his cross-claim struck out. To resolve that application, the consent order was made. While that order was also not complied with, the mortgage over the Narrabri property was later granted. An appeal from the costs order was pursued, as well as the repeated steps taken in the District Court to have the costs orders set aside, without success. Proceedings were also brought in the Equity Division of this Court, to prevent Mr Jeffrey Mahaffy exercising his rights under the mortgage. Ultimately, these attempts also failed.

187. Mr Jeffrey Mahaffy’s case is that Mr David Mahaffy’s conduct involved a reneging of the agreement which underpinned the May 2010 consent order, which amounted to a contempt of the District Court.

188. In Mudginberi it was observed (at 107) that the underlying rationale of every exercise of the contempt power, is that it is:

“... necessary to uphold and protect the effective administration of justice. Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt, 2nd ed. (1983) say, at p.3:

‘If a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.’”

189. In the case of this charge, it seems to me that the contempt alleged by the steps pursued in the Equity Division proceedings has not been established. Given the basis upon which the relief was sought in the Equity Division and the success, albeit ultimately limited, that Mr David Mahaffy there achieved, that the course pursued obstructed the administration of justice may not be accepted.

190. The injunction was granted initially, as I have explained, because of Mr Jeffrey Mahaffy’s failure to give a statutory s 57(2)(b) notice which he was bound to give, notwithstanding the power of sale which he was exercising under the mortgage. The pursuit of such a statutory obligation, partially successful as it was, cannot, it seems to me, have involved a contempt of the District Court.

191. The position, it seems to me, in relation to caveats is different, but while the caveats were relied on by way of particulars of this charge, it was the pursuit of the two summonses filed in the Equity Division, which it is claimed, resulted in the contempt of the District Court.

192. In the result, I consider that this charge has not been proved beyond reasonable doubt and must be dismissed.

Orders

193. For the reasons given, I find that:

1. The contempt alleged in charges 1, 5, 6, 7, 8, 9, 11 and 13 have been proven on the evidence, beyond reasonable doubt.

2. The contempt alleged in charges 2, 3, 4, 10 and 12 have not been established on the evidence, beyond reasonable doubt.

194. Accordingly, I order that:

1. Charges 2, 3, 4, 10 and 12 of the Further Amended Statement of Charge filed 23 April 2013 be dismissed.

2. Charges 1, 5, 6, 7, 8, 9, 11 and 13 of the Further Amended Statement of Charge filed 23 April 2013 are to be listed for further hearing as to penalty.

3. The matter is listed for directions at 9:30 am on 2 March 2015.

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Decision last updated: 16 February 2015