DC
[2021] WASAT 130
•24 SEPTEMBER 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: DC [2021] WASAT 130
MEMBER: PRESIDENT PRITCHARD
HEARD: 2 SEPTEMBER 2021
DELIVERED : Ex tempore
PUBLISHED : 24 SEPTEMBER 2021
FILE NO/S: GAA 2976 of 2021
THE PUBLIC TRUSTEE
Applicant
DC
Represented Person
Catchwords:
Practice and procedure - Referral of possible contempt to Supreme Court under s 100 State Administrative Tribunal Act (WA) - Breach of undertaking - Aiding and abetting breach of undertaking - Principles relevant to referral
Legislation:
Administrative Decisions Review Act 1997, s 131(1)
Guardianship and Administration Act 1990 (WA), s 82, s 113
Local Court Act 2007 (NSW)
State Administrative Tribunal Act 2004, s 100
Result:
Conduct referred to Supreme Court
Category: A
Representation:
Counsel:
| Applicant | : | Mr J R Criddle |
| Represented Person | : | N/A |
Solicitors:
| Applicant | : | The Public Trustee |
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Bott v New South Wales Land and Housing Corporation [2017] NSWCATCD 88
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459
Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188
Foley v Herald-Sun TV Pty Ltd [1981] VR 315
LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1213
Mohareb v Palmer [2017] NSWCA 281
Pelechowski v Court of Appeal Registrar [1999] HCA 19; [1999] 198 CLR 435
Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277
Re Ruah Legal Services Ltd (t/as Mental Health Law Centre) [2021] WASAT 28
Seaward v Paterson [1897] 1 Ch 545
Windsurfing International Incorporated v Sailboards Australia Pty Ltd & Anor [1986] 19 FCR 110
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.)
Introduction
On 26 March 2021 the Tribunal appointed the Public Trustee as the plenary administrator of the estate of Ms DC.
The present proceedings were commenced by the Public Trustee pursuant to s 82 of the Guardianship and Administration Act 1990 (WA) (GAAct) (s 82 Application). The Public Trustee brought the s 82 Application after his investigations led him to the view that within two months before she was declared by the Tribunal to be a person in need of an administrator of her estate Ms DC engaged in conduct of the kind described in s 82 of the GA Act, in that she gave to Mr RNM (Mr M Snr)[1] an amount of money in the sum of just under $500,000.
[1] Out of an abundance of caution, the names of the parties have been anonymised to protect the confidentiality of personal information about the represented person, Ms DC: see s 113 GA Act.
The Public Trustee's investigations also led him to the view that Mr M Snr had used those funds to purchase a property at [address] (Property). When the s 82 Application was commenced the Public Trustee sought orders from the Tribunal that would require the Property to be sold and for Ms DC to be repaid the money that she gave to Mr M Snr.
The Public Trustee also made an application for an urgent hearing for an interlocutory injunction to prevent the sale of the Property or any dealing with the property while the s 82 Application was considered (Injunction Application).
The hearing of the Injunction Application was listed before the Tribunal on 5 August 2021. Amongst others, Mr M Snr and his son, Mr RFM (Mr M Jnr), appeared at that hearing. Mr M Snr sought an adjournment to permit him to obtain some legal advice. The Tribunal granted that adjournment on an undertaking given by Mr M Snr (Undertaking). The Tribunal made an order which incorporated the Undertaking, in the following terms:
Upon the undertaking of [RNM] that he will not sell, charge, transfer, mortgage (including increasing the amount of any loan either by way of further application or by accessing any redraw facility) or otherwise deal with the property at [address] (Property) the matter is adjourned to Thursday 12 August 2021 at 10.30 am for the hearing of the application by the Public Trustee for an interlocutory injunction.
On 6 August 2021 it came to the Public Trustee's attention that the title to the Property had that morning been transferred from Mr M Snr to Mr M Jnr. Upon being notified of that allegation, the Tribunal held an urgent hearing later that afternoon to ascertain what had occurred. Amongst other orders I made on that occasion was an order to adjourn the proceedings to 12 August 2021, to enable Mr M Snr to obtain legal advice and representation because I was considering whether I should refer his conduct to the Supreme Court pursuant to s 100 of the State Administrative Tribunal Act 2004 (SAT Act), to be dealt with as if it were a contempt of that court.
At the hearing on 12 August 2021, Mr M Snr stated that he had not been able to secure legal representation. In those circumstances, I adjourned the matter to today, to give him a further opportunity to obtain legal advice and representation. I also made programming orders requiring the Public Trustee to file an affidavit of any evidence he wished to rely upon for the purposes of my consideration of a referral under s 100 of the SAT Act. At the same hearing, I also put Mr M Jnr on notice that I was considering whether his conduct should also be referred to the Supreme Court as if it were a contempt of that court, and noted that the adjournment would enable him to obtain legal advice as well. Finally, I made orders for both Mr M Snr and Mr M Jnr to file any affidavit or submissions on which they might wish to rely in relation to the possible referral under s 100 of the SAT Act.
The Public Trustee has now filed an affidavit of Ms Yasmin Salleh dated 16 August 2021 and written submissions. Neither Mr M Snr nor Mr M Jnr have filed any affidavit or submissions. They have informed me that they have each sought to obtain legal advice but find themselves in a position where they have not been able to secure representation today. Mr M Snr says he has sought Legal Aid but has not been in a position to secure that. Both Mr M Snr and Mr M Jnr have told me that to secure private legal representation is beyond their financial means. Accordingly, the hearing proceeded on the basis that they were invited to make such submissions as they wished to on their own behalf, but without any obligation to make submissions at all.
For the reasons which follow I am satisfied that the acts or omissions of Mr M Snr were a breach of the Undertaking he gave to the Tribunal on 5 August 2021 and would constitute a contempt of the Supreme Court if this were a proceeding in the Supreme Court. I will refer that alleged contempt to the Supreme Court accordingly. I am also satisfied that the acts or omissions of Mr M Jnr aided and abetted Mr M Snr to breach the Undertaking and for that reason would also constitute a contempt of the Supreme Court if this were a proceeding in the Supreme Court. I will refer that alleged contempt to the Supreme Court as well.
Factual background
I have already referred to the factual background to some extent. The matters to which I have referred are supplemented by the affidavit of Ms Yasmin Salleh. I need only mention the following additional matters.
Ms Salleh deposes to the fact that various inquiries were made by staff at the Public Trustee on 6 August 2021 when information was received to suggest that the Property had been transferred on that day. Those inquiries revealed that the transfer of the Property from Mr M Snr to Mr M Jnr was registered at Landgate on 6 August 2021. The contract for the sale of the Property was entered into on 19 June 2021. The transfer was lodged by First Legal Pty Ltd, which appears to be the party which has taken a mortgage over the Property and presumably has provided finance to Mr M Jnr for his purchase of the Property. The documents also indicate that the registration of the transfer was completed on 6 August 2021.
Principles in relation to s 100 of the SAT Act
I turn next to the principles applicable to s 100 of the SAT Act. I dealt with those principles recently in Re Ruah Legal Services Ltd (t/as Mental Health Law Centre).[2] At [6] [10] I set out the principles governing what must be considered by the President of the Tribunal in a referral of a possible contempt to the Supreme Court. I adopt the principles that I there set out.
[2] [2021] WASAT 28.
Provisions similar to s 100 of the SAT Act can be found in legislation from other jurisdictions which is in terms not dissimilar to the SAT Act.
In Bott v New South Wales Land and Housing Corporation,[3] the New South Wales Civil and Administrative Tribunal discussed what standard had to be met when answering the question of whether conduct is capable of constituting a contempt. The Tribunal said:[4]
There remains to be considered one last matter namely, the appropriate standard of proof that must accompany a determination that the respondent’s conduct complained of is capable of constituting contempt. … Prima facie, I am only concerned with the exercise of discretion whether to refer these members to the Supreme Court. On this basis it might be thought sufficient to determine that, on the balance of probabilities, the respondent’s conduct as I have found it, is capable of constituting contempt. However, for abundant caution I indicate that given the underlying nature of contempt proceedings and the part that this Tribunal plays in the referral process, referred to me in some cases as being "executive", I am comfortably satisfied on the balance of probabilities, according to the Briginshaw standard, that the conduct of the respondent is capable of constituting contempt.
[3] [2017] NSWCATCD 88.
[4] Bott v New South Wales Land and Housing Corporation [2017] NSWCATCD 88 [63].
In another case, Daintree Cafe Pty Ltd v Jacfun Pty Ltd,[5] the Tribunal noted:[6]
In the context of proceedings for contempt it is important, in my view, that the Tribunal be satisfied that the alleged contempt is of such a grave, serious and weighty nature that would on balance require the Supreme Court to do something positive about it rather than treating the conduct as technical contempt which … would be unlikely to attract a penalty.
[5] [2002] NSWADT 188.
[6] Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188 [30].
Daintree Cafe involved a consideration of s 131(1)(j) of the Administrative Decisions Review Act 1997 (NSW). The provisions of s 131(1) deal with conduct which may constitute contempt of the Tribunal and give the Tribunal a discretion to report a variety of matters to the Supreme Court which may constitute contempt. Section 131(1)(j) provides that conduct may be reported by the Tribunal to the Supreme Court if a person does any other thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court.
The similarity in the provisions which were the subject of Bott and Daintree Cafe is such that the principles outlined by the Tribunal in each of those cases are of assistance in the application of s 100 of the SAT Act.
Before making a decision as to whether to refer a matter under s 100 of the SAT Act, it is necessary to afford an alleged contemnor with the opportunity to be heard. That much was made clear in the decision of Prothonotary of the Supreme Court of NSW v Dangerfield.[7]
[7] [2016] NSWCA 277.
In that decision the court accepted that procedural justice required that a proposed contemnor be given the opportunity to make submissions on whether a matter should be referred to the Supreme Court and also be given the opportunity to obtain legal advice. The proceedings in that case concerned the proper construction of a power of the Local Court under the Local Court Act 2007 (NSW). Nevertheless, I consider the principle there established to be equally applicable here. That is why I have taken steps to ensure that both Mr M Snr and Mr M Jnr have had the opportunity to endeavour to obtain legal advice if they can secure it, and to make such submissions as they wish in relation to what action I should take under s 100.
By way of further elaboration of the principles concerning procedural fairness in cases of this kind, I note that the decisions in Court of Appeal v Maniam (No 1)[8] and in Mohareb v Palmer[9] are also of some assistance. The procedure outlined in Maniam was referred to by the High Court in Pelechowski v Court of Appeal Registrar[10] where the Court said:
[it] must first be alleged or appear to the court that a person is guilty of contempt of court; then the judge must ordinarily afford to the person in question the opportunity of showing why … the judge should not refer the matter to the Supreme Court for determination. … [T]he judge may, in the exercise of the discretion … then refer the matter to the Supreme Court for determination.[11]
Submissions by the parties
[8] (1991) 25 NSWLR 459.
[9] [2017] NSWCA 281 [18] - [20].
[10] [1999] HCA 19; (1999) 198 CLR 435.
[11] Pelechowski v Court of Appeal Registrar [1999] HCA 19; (1999) 198 CLR 435 [17] (Gaudron, Gummow and Callinan JJ) citing Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459, 469 (Mahoney JA).
Mr M Snr and Mr M Jnr made oral submissions today. Their submissions were not supported by any documentation nor did they give any evidence on oath. I make that observation without any criticism, but merely to refer to the fact that they chose only to make submissions at this stage.
Mr M Snr took the opportunity to apologise to the Tribunal and submitted that his conduct was inadvertent, that he was not intending to hold back any information from the Tribunal on 5 August 2021 and that his intentions were honourable. He claimed that on 5 August 2021 he did not know the sale of the Property had settled. That was a curious submission because, on 5 August 2021, the Property sale had not settled. He said when he left the Tribunal on 5 August 2021, he understood from information given to him by his son that sale of the Property had settled. In fact, thedocuments in Ms Salleh's affidavit record that the Property settlement had not taken place on 5 August 2021, in the sense that registration of the title had not then occurred. Consequently, I have some reservations about the accuracy of Mr M Snr's submission. It may be a matter of me misunderstanding, but nevertheless, I have some reservations.
Mr M Jnr also took the opportunity to apologise to the Tribunal for what he described as 'not being as clear as he should' in what was said to the Tribunal on 5 August 2021. He claimed that his father had been unaware of the whole settlement of the Property sale, a submission I found somewhat difficult to accept. He said he was also under the impression that settlement of the Property had already taken place. It is far from clear to me why that would be the case when the transfer was not registered until 6 August 2021. Mr M Jnr said he did not deliberately disobey the Tribunal's orders and claimed that he and his father were new to the procedure in the Tribunal. He said his intention was not to mislead anyone, and he did not know, and did not tell his father, about the settlement until after the Tribunal hearing on 5 August 2021. He claimed that he did not know what to say to the Tribunal on the 5 August 2021 and it was for that reason that he had not drawn the Tribunal's attention to the fact that the Property was subject to a contract of sale between his father and him as of 5 August 2021.
I have taken those submissions into account, but I am not persuaded in the exercise of my discretion that they constitute a basis on which I should refrain from referring the alleged contempts to the Supreme Court.
Before I go on, I should also observe that I have taken into account the views of Ms DC. She is the represented person under the GA Act. It is always important for the views of any represented person to be taken into account. Ms DC acknowledged that she thought that both Mr M Snr and Mr M Jnr should have been more upfront about what was going on, but submitted to me that they did not act with any malice. I appreciate that Ms DC is in a difficult position here. I have taken her submission into account, but it does not alter the view I have taken as to the appropriate exercise of my discretion.
Has conduct capable of constituting a contempt occurred?
I turn now to explain why, on the evidence, I am satisfied on the balance of probabilities, and bearing in mind the Briginshaw[12] principle (given the seriousness of the allegations of contempt and the potential consequences thereof), that the conduct of both Mr M Snr and Mr M Jnr is conduct which would be capable of constituting contempt of the Supreme Court, if the present proceedings were proceedings in the Supreme Court.
[12] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 - 362 (Dixon J).
Briefly, the reasons for that conclusion are as follows. First, when Mr M Snr gave the Undertaking to the Tribunal on 5 August it was an undertaking in clear terms. I emphasised to him that it was a solemn promise, the breach of which would be punishable as a contempt, and I was satisfied that he understood what that meant at the time.
Secondly, I am also satisfied that, as the registration of the transfer of the Property did not take place at Landgate until 6 August 2021, it remained possible for Mr M Snr, as the vendor of the Property, to take steps to prevent the registration of the transfer, by notifying both Landgate and the party representing the purchaser of the Property, his son's agent, that there was an issue in relation to the transfer of the property and that it should not proceed. Mr M Snr's acts or omissions, which effectively permitted the transfer of the Property to proceed in circumstances where, at any time prior to 6 August 2021, it was open to him to seek to halt that process, in my view, constituted a breach of the Undertaking and constituted acts or omissions capable of constituting a contempt.
In relation to Mr M Jnr, I am comfortably satisfied on the balance of probabilities that the conduct in which he engaged was conduct capable of constituting contempt. Aiding and abetting a contempt constitutes a contempt. By way of example, in Foley v Herald-Sun TV Pty Ltd[13] McGarvie J observed that:[14]
A person who aids and abets a breach of an injunction is guilty of a contempt of court if at the time he has proper notice of the injunction.
[13] [1981] VR 315.
[14] Foley v Herald-Sun TV Pty Ltd [1981] VR 315 at 319.
In the leading decision of Seaward v Paterson,[15] Lindley LJ made the following observations:
[L]et us consider what jurisdiction the Court has to make an order against Murray. There is no injunction against him - he is no more bound by the injunction granted against Paterson than any other member of the public. He is bound, like other members of the public, not to interfere with, and not to obstruct, the course of justice; and the case, if any, made against him must be this - not that he has technically infringed the injunction, which was not granted against him in any sense of the word, but that he has been aiding and abetting others in setting the Court at defiance, and deliberately treating the order of the Court as unworthy of notice. If he so conducted himself, it is perfectly idle to say that there is no jurisdiction to attach him for contempt as distinguished from a breach of the injunction, which has a technical meaning.
[15] [1897] 1 Ch 545 at 554.
Lindley LJ went on to say:[16]
[T]he court will not allow its process to be set at naught and treated with contempt. In the one case the person who is interested in enforcing the order enforces it for his own benefit; in the other case, if the order of the Court has been contumaciously set at naught the offender cannot square it with the person who has obtained the order and save himself from the consequences of his act.
[16] Seaward v Paterson [1897] 1 Ch 545 at 556.
His Honour concluded that 'Murray was not present as a mere spectator, but as one of the persons interested. There is not the slightest doubt that he was at the bottom of the whole thing'.[17] He was thus considered to have aided and abetted the contempt.
[17] Seaward v Paterson [1897] 1 Ch 545 at 556.
For completeness, I make reference to Windsurfing International Incorporated v Sailboards Australia Pty Ltd & Anor,[18] where Burchett J observed:[19]
Although the undertakings … were given by the first respondent alone, the second respondent, as its managing director, was in control of its activities, and his evidence demonstrates his personal role in [the contempt]. It was by his decision that the [alleged contempt] took place. In that situation, he is personally liable for contempt, as a knowing participant in the breach.
[18] [1986] 19 FCR 110.
[19] Windsurfing International Incorporated v Sailboards Australia Pty Ltd & Anor [1986] 19 FCR 110, 125.
And finally, I refer to the decision of Lindgren J in LED Builders Pty Ltd v Eagle Homes Pty Ltd.[20] His Honour discussed an alleged contempt by way of aiding and abetting, and observed:[21]
It is not necessary to show that a person who has aided and abetted a contempt of court was served with the order breached. It is necessary to show only that the person sought to be made liable knew of the order.
[20] [1999] FCA 1213.
[21] LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1213 [58].
In the present case, I am comfortably satisfied on the balance of probabilities that the conduct of Mr M Jnr was conduct which is capable of constituting contempt, in that it was conduct which aided and abetted his father's breach of the Undertaking. Mr M Jnr was present when the Undertaking was given by Mr M Snr. I am satisfied he understood what it meant. I am satisfied that it was open to Mr M Jnr to take some action, prior to 6 August 2021, to prevent the registration of the transfer from taking place and he failed to do so. That failure enabled his father to breach the Undertaking by transferring the title to the Property to him. That constituted aiding and abetting his father's breach of the Undertaking.
The Public Trustee also submitted that I should be satisfied that an omission by Mr M Snr and Mr M Jnr, by their failure to inform the Tribunal at the directions hearing on 5 August 2021 that a contract for the sale of the Property had been entered into on 19 June 2021 and that arrangements were in place to transfer the Property, would be capable of constituting contempt. I am not satisfied that I should make a reference to the Supreme Court on that basis.
In my view, the failure by Mr M Snr and Mr M Jnr, at the hearing on 5 August 2021, to say anything about the sale of the Property suggests that they were well aware that the transfer was to proceed. They were well aware that the contract had been entered into and that the transfer was to proceed, given that they did not tell the Tribunal that it had already occurred. And yet, they did not say anything to the Tribunal about that matter so as to enable the Tribunal to take that information into account. That may, in due course, be the subject of submissions about whether their failure to do anything provides further support to the conclusion that their decision to breach the Undertaking or to assist in its breach was a conscious one, well and truly knowing of the implications of that conduct or omission.
Orders
In all of those circumstances, I propose to make orders in the following terms:
1.Pursuant to s 100(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act):
(a)I am satisfied that the acts or omissions of [RNM] which are particularised below (first alleged contempt) would constitute a contempt of the Supreme Court if this proceeding were a proceeding in the Supreme Court, in that:
(i)On 5 August 2021, [RNM] gave an undertaking to the Tribunal in the following terms:
'Upon the undertaking of [RNM] that he will not sell, charge, transfer, mortgage (including increasing the amount of any loan either by way of further application or by accessing any redraw facility) or otherwise deal with the property at [address] (Property) the matter is adjourned to Thursday 12 August 2021 at 10.30am for the hearing of the application by the Public Trustee for an interlocutory injunction' (Undertaking);
(ii)On or about 6 August 2021, [RNM]:
A.sold or transferred; or
B.engaged in acts or conduct to effect or complete the sale, or registration at Landgate of the transfer, of; or
C.omitted to engage in acts or conduct to prevent the completion of the sale, or registration at Landgate of the transfer, of;
the property at [address], to [RFM], in contravention of the Undertaking.
(b)I report the first alleged contempt to the Supreme Court to be dealt with as if it was a contempt of the Court.
2.Pursuant to s 100(1) of the SAT Act:
(a)I am satisfied that the acts or omissions of [RFM] which are particularised below (second alleged contempt) would constitute a contempt of the Supreme Court if this proceeding were a proceeding in the Supreme Court, in that:
(i)On 5 August 2021, [RNM] gave the Undertaking to the Tribunal;
(ii)[RFM] is the son of [RNM];
(iii)[RFM] was present at the hearing of the Tribunal when [RNM] gave the Undertaking to the Tribunal;
(iv)On or about 6 August 2021, [RFM]:
A.engaged in acts or conduct to enable [RNM] to effect or complete the sale, or registration at Landgate of the transfer; or
B.omitted to engage in acts or conduct to prevent the completion of the sale, or registration at Landgate of the transfer;
of the property at [address], from [RNM] to [RFM], and thereby aided or abetted [RNM] to contravene the Undertaking.
(b)I report the second alleged contempt to the Supreme Court to be dealt with as if it was a contempt of the Court.
3.The Executive Officer of the State Administrative Tribunal is to forward to the Principal Registrar of the Supreme Court a copy of:
(a)this order;
(b)the reasons for decision of the President delivered on 2 September 2021;
(c)the affidavit of Ms Yasmin Salleh dated 16 August 2021; and
(d)the transcript of the proceedings on 5, 6, 12 August and 2 September 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GD
Associate to the Honourable Justice Pritchard
24 SEPTEMBER 2021
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