JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2023 and 24 August 2023
DATE OF JUDGMENT:	12 September 2023
CASE MAY BE CITED AS:	Fahey v Bird (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 540

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CONTEMPT – Where defendant executor failed to comply with court orders and undertaking to produce administration accounts – Where defendant pleaded guilty to contempt – Where contempt is continuing – Contempt criminal in character – Convicted and sentenced to four months’ imprisonment – Sentence wholly suspended on condition that administration accounts prepared within 28 days - Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 75.11 – Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Witham v Holloway (1995) 183 CLR 525; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 ; Varnavides v Victorian Civil and Administrative Tribunal (2005) 12 VR 1 ; Livingspring Pty Ltd v Ng [2007] VSC 9; R v Hinch (No 2) [2013] VSC 554; Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527 ; Hera Project Pty Ltd v Bisognin (No 2) [2019] VSC 625; R v The Herald & Weekly Times [2021] VSC 253; Prothonotary of the Supreme Court of New South Wales v Whit [2023] NSWSC 264.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mitchell	Devenish Lawyers
For the Defendant	In person

HIS HONOUR:

On 9 May 2023, the defendant pleaded guilty to the following two charges of contempt (the charges):

Charge 1
1.On 9 September 2022, Associate Justice Mukhtar made orders (Orders) in the proceeding that the defendant shall by 22 September 2022 produce to the plaintiff’s solicitor:
(a)a true and just account of the administration of the Estate of Pauline Ann Tyson, deceased (the Deceased); and
(b)a true and just account of the administration of the Chloe Fahey Trust.

2. In breach of the Orders, the defendant did not produce to the plaintiff’s solicitor an account of the administration of the Estate of the Deceased and/or an account of the administration of the Chloe Fahey Trust by 22 September 2022 or at all.
Charge 2
3. On 6 April 2004 and 22 April 2004 (incorrectly referred to as 28 April 2004 in the Affidavit of the Plaintiff affirmed 13 September 2021), the defendant gave an undertaking to the Court that if required by the Court or Registrar, he would make and file or cause to be made and filed in the Court, a true and just account of the administration of the Estate…

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 Fahey v Bird (No 2)

Details

AGLC: Fahey v Bird (No 2) [2023] VSC 540
Case: [2023] VSC 540
Decision Date: 12 September 2023

CaseChat Overview and Summary

The case of Fahey v Bird (No 2) involved the executor of an estate who was found in contempt for failing to comply with court orders and an undertaking to produce administration accounts. The dispute was heard in the Supreme Court of Victoria. The plaintiff, the beneficiary of the estate, sought enforcement of the executor's compliance with the orders. The executor, Bird, pleaded guilty to the contempt but challenged the court’s jurisdiction to impose a custodial sentence due to the contempt being continuing in nature.

The primary legal issue was whether the court had the authority to impose a custodial sentence on the executor for a contempt that was continuing in nature. Bird argued that the contempt being continuing in nature meant that the court's power to impose a custodial sentence was limited. The court considered relevant authorities including Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd, Witham v Holloway, Pelechowski v Registrar, Court of Appeal (NSW), and others. The court found that while the contempt was indeed continuing, the Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 75.11 and relevant precedents allowed for a custodial sentence to be imposed, wholly suspended on certain conditions.

The court held that the executor's contempt was both serious and deliberate, warranting a custodial sentence. However, due to the executor's guilty plea and the potential impact on the estate and beneficiaries, the court sentenced Bird to four months’ imprisonment, wholly suspended on the condition that administration accounts were prepared within 28 days. This approach balanced the need for accountability with the practical implications of the sentence on the estate and beneficiaries.

The final orders included that Bird prepare and lodge the administration accounts within 28 days from the date of the judgment. Failure to comply would result in the executor being required to serve the original custodial sentence.

Orders