Duhs v Pettett (No. 3) - [2010] QSC 55

SUPREME COURT OF QUEENSLAND

CITATION:

Duhs v Pettett & Ors (No. 3) [2010] QSC 55

PARTIES:

DUHS, Wilfred Henry

(plaintiff)

v

PETTETT, Trevor

(first defendant)

KEA-WATT & ASSOCITES PTY LTD ACN 100 005 137

(second defendant)

RATHDOWNEY DEVELOPMENTS PTY LTD ACN 115 908 137

(third defendant)

FILE NO/S:

BS 12147 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2010

JUDGE:

McMurdo J

ORDER:

1. There will be no penalty imposed.

2. The first defendant is to pay the plaintiff’s costs of the contempt proceedings, to be assessed upon the indemnity basis.

CATCHWORDS:

PROCEDURE – CONTEMPT – GENERALLY – where defendant was in contempt of an order made in these proceedings – whether contempt was intentional and whether intent to breach the order must be proved beyond reasonable doubt

PROCEDURE – CONTEMPT – PUNISHMENT FOR CONTEMPT – where defendant was in contempt of an order made in these proceedings – where defendant had taken steps to remedy the breach – where plaintiff had not established that defendant remained in contempt – whether defendant should be imprisoned for the contempt

Evidence Act 1977 (Qld), s 132C

Anderson v The Queen (1993) 177 CLR 520

Australian Meat Industry Employees’ Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Duhs v Pettett & Ors (No. 2) [2009] QSC 400

Hafele Australia Pty Ltd & Anor v Maggbury Pty Ltd & Anor [2000] QCA 397

R v Morrison [1999] 1 Qd R 397

R v Olbrich (1999) 199 CLR 270

Witham v Holloway (1995) 183 CLR 525

COUNSEL:

Mr LJ Nevison for the plaintiff

Mr JB Loel (solicitor) for the first defendant

SOLICITORS:

Ferguson Cannon for the plaintiff

Lillas & Loel for the first defendant

On 11 December 2009 I held that the first defendant, Mr Pettett, was in contempt of orders made in these proceedings.[1] The matter was adjourned for submissions and any further evidence relevant to punishment for this contempt. This judgment concerns that issue.
[1]Duhs v Pettett & Ors (No. 2) [2009] QSC 400.

It is convenient to mention first the contempt of paragraph 8.1 of the order of 16 July 2009, which was constituted by Mr Pettett’s failure to inform the plaintiff’s solicitors of his credit balance in an account with Heritage Building Society. As I discussed in my previous judgment, that came to light by Mr Pettett volunteering the information about the account. By the time of the previous hearing, the information had been provided and was conceded to be sufficient. This was an inadvertent breach.

The more substantial contempt was that constituted by his failure to comply with paragraph 8.2 of that order. In essence he failed to disclose information concerning the disbursement of “the plaintiff’s monies in the sum of $2,700,000 as deposited to Suncorp-Metway Limited account no. 330021210”. In essence, Mr Pettett had argued that he was not in breach because the $2,700,000 paid to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duhs v Pettett (No. 3)

Details

AGLC: Duhs v Pettett (No. 3) [2010] QSC 55
Case: [2010] QSC 55
Decision Date: 1 March 2010

CaseChat Overview and Summary

In the matter of Duhs v Pettett, the Court was tasked with determining whether the defendant had intentionally breached a prior court order, and if the intent to breach the order needed to be proven beyond reasonable doubt. Additionally, the court considered the appropriate punishment for the contempt, particularly in light of the defendant's actions to remedy the breach and the plaintiff's failure to demonstrate that the defendant remained in contempt.

The court had to address two primary legal issues. Firstly, it needed to establish whether the contempt was intentional, which required a nuanced interpretation of the defendant's actions and motives. Secondly, the court needed to determine the appropriate punishment for the contempt, taking into account the defendant's efforts to rectify the breach and the plaintiff's inability to prove ongoing contempt.

The court found that the defendant's actions, while initially in breach of the order, were followed by efforts to comply with the court's directives. This mitigated the severity of the contempt. Additionally, the court ruled that the plaintiff had not provided sufficient evidence to demonstrate that the defendant remained in contempt. Consequently, the court decided that no penalty should be imposed. The first defendant was, however, ordered to pay the plaintiff's costs of the contempt proceedings on an indemnity basis.

Orders

Orders of the court

1. There will be no penalty imposed.

2. The first defendant is to pay the plaintiff’s costs of the contempt proceedings, to be assessed upon the indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Duhs v Pettett & Ors (No. 3) [2010] QSC 55
PARTIES:	DUHS, Wilfred Henry (plaintiff) v PETTETT, Trevor (first defendant) KEA-WATT & ASSOCITES PTY LTD ACN 100 005 137 (second defendant) RATHDOWNEY DEVELOPMENTS PTY LTD ACN 115 908 137 (third defendant)
FILE NO/S:	BS 12147 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	19 February 2010
JUDGE:	McMurdo J
ORDER:	1. There will be no penalty imposed. 2. The first defendant is to pay the plaintiff’s costs of the contempt proceedings, to be assessed upon the indemnity basis.
CATCHWORDS:	PROCEDURE – CONTEMPT – GENERALLY – where defendant was in contempt of an order made in these proceedings – whether contempt was intentional and whether intent to breach the order must be proved beyond reasonable doubt PROCEDURE – CONTEMPT – PUNISHMENT FOR CONTEMPT – where defendant was in contempt of an order made in these proceedings – where defendant had taken steps to remedy the breach – where plaintiff had not established that defendant remained in contempt – whether defendant should be imprisoned for the contempt Evidence Act 1977 (Qld), s 132C Anderson v The Queen (1993) 177 CLR 520 Australian Meat Industry Employees’ Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Duhs v Pettett & Ors (No. 2) [2009] QSC 400 Hafele Australia Pty Ltd & Anor v Maggbury Pty Ltd & Anor [2000] QCA 397 R v Morrison [1999] 1 Qd R 397 R v Olbrich (1999) 199 CLR 270 Witham v Holloway (1995) 183 CLR 525
COUNSEL:	Mr LJ Nevison for the plaintiff Mr JB Loel (solicitor) for the first defendant
SOLICITORS:	Ferguson Cannon for the plaintiff Lillas & Loel for the first defendant