Fahey v Bird (No 3)
[2024] VSC 148
•28 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2022 02519
IN THE MATTER of the Will and Estate of Pauline Ann Tyson, deceased
BETWEEN:
| CHLOE ANGEL FAHEY | Plaintiff |
| v | |
| HOWARD BIRD, who is sued as the Executor of the Will of Pauline Ann Tyson, deceased | Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 March 2024 |
DATE OF JUDGMENT: | 28 March 2024 |
CASE MAY BE CITED AS: | Fahey v Bird (No 3) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 148 |
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CONTEMPT – Where defendant executor imprisoned for contempt – Where defendant seeks to be discharged before expiry of term of imprisonment – Where defendant alternatively seeks suspended sentence and release from custody – Contempt in substance purged – Defendant discharged on condition – Order 75 of the Supreme Court (General Civil Procedure) Rules 2015 – King v President, Councillors and Ratepayers of the Shire of Gisborne (Supreme Court of Victoria, Nathan J, 3 September 1993, unreported); Young v Registrar, Court of Appeal (1993) 32 NSWLR 262; CJ v Flintshire Borough Council (2010) 2 FLR 1224; Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) [2015] FCA 1103; Thunder Studios Inc (California) v Kazal (No 6) [2017] FCA 1573.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Mitchell SC | Devenish Lawyers |
| For the Defendant | Mr P Gordon (solicitor) | Gordon Legal |
HIS HONOUR:
Introduction
The defendant is a contemnor who is presently committed to prison. He has brought an application for an order under r 75.12 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) to be discharged from prison before the expiry of his term of imprisonment or, alternatively, an order under r 75.11(4) to suspend his sentence and release him from custody.
The defendant is serving a sentence of 4 months’ imprisonment pursuant to the following orders which I made on 12 September 2023:
1. Howard Bird is convicted of contempt of court in that:
(a) in breach of orders made in this proceeding on 9 September 2022 by Associate Justice Mukhtar, he did not produce to the plaintiff’s solicitor an account of the administration of the Estate of Pauline Ann Tyson, deceased and/or an account of the administration of the Chloe Fahey Trust by 22 September 2022 or at all; and
(b) in breach of undertakings he gave to the Court on 6 April 2004 and 22 April 2004, he has failed, neglected and/or refused to make and file, or cause to be made and filed, a true and just account of the administration of the Estate of Pauline Ann Tyson, deceased, despite being required by the Registrar of Probates to do so, and is sentenced to four months’ imprisonment.
2. The term of imprisonment imposed by paragraph (1) of this Order is wholly suspended on the condition that, by 4.00pm on 18 October 2023, Howard Bird provide to the Registrar of Probates and the solicitors for the plaintiff, Devenish Lawyers:
(a) a true and just account of the administration of the estate of Pauline Ann Tyson, deceased; and
(b) a true and just account of the administration of the Chloe Fahey Trust.
3. The accounts referred to in paragraph (2) of this order be:
(a) prepared in accordance with Form 3-6AA of the Supreme Court (Administration and Probate Rules) 2014 and exhibited to an affidavit of verification filed via RedCrest-Probate on the original probate application (S PRB 2004 04890); and
(b) provided to Devenish Lawyers by way of email to Kellie English at [email protected], or otherwise by way of hand delivery to the offices of Devenish Lawyers at Level 1, 23 Ringwood Street, Ringwood VIC 3134.
4. Liberty to apply.
My reasons for making the above orders are set out in Fahey v Bird (No 2)[1] (the reasons for judgment).
[1][2023] VSC 540.
The defendant failed to comply with the condition referred to in paragraph 2 of the orders made on 12 September 2023.
A committal warrant was issued for the defendant’s arrest on 26 October 2023. The warrant was not, however, executed until Thursday 21 March 2024, at which time the defendant was taken into custody at the Melbourne Assessment Prion.
The defendant’s solicitor filed an affidavit in support of the present application after hours on Friday 22 March 2024.[2] The defendant’s solicitor deposed that the defendant had taken the following steps to purge his contempt:
[2]In support of his application, the defendant also relied upon an affidavit by his instructing solicitor dated 8 February 2024 filed earlier in the proceeding.
(a) On 2 February 2024, the defendant instructed his solicitors to retain a forensic accountant for the purpose of producing an account of the administration of the deceased’s estate and the Chloe Fahey Trust.
(b) A draft report by a forensic accountant was completed on 19 March 2024 (two days before the committal warrant was executed). The defendant asked his solicitor for a few days to review the accounts more closely.
(c) After his arrest, on 22 March 2024, the defendant’s solicitor filed and served an expert report dated 20 March 2024 by Mariano Rossetti, a forensic accountant, (the Rossetti report) which purports to be an account of the administration of the deceased’s estate.
The defendant’s application to be discharged from prison was heard on Tuesday 26 March 2024. The application was not opposed by senior counsel who appeared for the plaintiff.
Senior counsel for the plaintiff also informed the Court that, on a cursory review by his instructing solicitor, the primary source documents by reference to which the Rossetti report was prepared appeared to be properly reflected in the accounts contained in the Rossetti report. Further, assuming the instructions and materials upon which the Rossetti report was prepared were accurate, senior counsel informed the Court that it appeared that the Rossetti report properly accounted for the funds of the deceased’s estate. Given these observations, although the account contained in the Rossetti report was not in the form required by the orders made on 12 September 2023,[3] I proceed on the basis that the filing and service of the Rossetti report constitutes substantial compliance by the defendant with his obligations in respect of the preparation of accounts. Consistently with that view, senior counsel for the plaintiff was of the view that compliance by the defendant with the orders of the Court could be achieved by the defendant making an affidavit verifying the contents of the Rossetti report.
[3]They were not prepared in accordance with Form 3-6AA of the Supreme Court (Administration and Probate) Rules 2014 or exhibited to an affidavit of verification.
The authorities: discharge of contemnor before expiry of term
It does not appear that there are any authorities dealing with the Court’s power under r 75.12 of the Rules which states:
Where a respondent is committed to prison for a term, the Court may order the respondent’s discharge before the expiry of the term.
However, in King v President, Councillors and Ratepayers of the Shire of Gisborne (Shire of Gisborne),[4] Nathan J considered an application by a contemnor under r 75.12 of the General Rules of Procedure in Civil Proceedings 1986 for discharge before the expiry of a term of imprisonment. Rule 75.12 of the General Rules of Procedure in Civil Proceedings 1986 was in relevantly the same terms as the current r 75.12. Justice Nathan stated that the provisions of the then r 75.12 reflected:[5]
…pre-existing common law which allowed a court to discharge a prisoner if a contempt was purged, or to hear a prisoner as to whether or not that contempt had been purged. The terms of the order over-reach those matters and apply now to all persons who are imprisoned under the contempt powers.
[4]Supreme Court of Victoria, Nathan J, 3 September 1993, unreported.
[5]Ibid 1.
As explained by Nathan J, Shire of Gisborne concerned an application by a ‘broken, distressed and destitute man’ who found prison ‘too hard and distasteful’. His Honour rejected the application for discharge, observing that the contemnor had still ‘failed to properly acknowledge the punishment he is now enduring has no other author but himself’.[6] His Honour was scathing of the proposition that: [7]
prisoners, finding Pentridge too distasteful can come along, half-way during the term, and say “it’s all too dreadful. I didn’t know it was going to be as bad as it is and I now want to serve less time”.
In rejecting the application, his Honour concluded that there was ‘no new factor or no pre-existing factor which would warrant the Court now altering or intruding in any way upon the orders of imprisonment initially set’.[8]
[6]Ibid 5.
[7]Ibid.
[8]Ibid.
Shire of Gisborne was referred to by Kirby P in Young v Registrar, Court of Appeal[9] (Young v Registrar) which concerned an application by a contemnor to be discharged from imprisonment pursuant to an analogous power[10] to that contained in rule 75.12 of the Rules. His Honour considered in detail the nature of the relevant power, its provenance and the manner in which it may be exercised:[11]
[9](1993) 32 NSWLR 262.
[10]Pt 55, r 14 of the Supreme Court Rules 1970 (NSW) which provided, ‘Where a contemnor is committed to prison for a term, the Court may order his discharge before the expiry of the term’.
[11]Young v Registrar (n 9), 281F – 283C.
The rule invoked by Mr Young clearly contemplates discharge during the terms of imprisonment fixed by the Court which committed him to prison. It contemplates that the court to which the discharge application is made will, in a sense, re-visit and review the facts which have already been passed upon judicially by the Courts imposing the sentence of imprisonment. To that extent, it is not to the point to complain about the offence to principle of providing an effective appeal or “review” in a court of co-equal jurisdiction. Some form of “review” is contemplated by the Court to which the discharge application is made as contemplated by the Supreme Court Rules 1970.
Provisions similar to Pt 55, r 14 of the Supreme Court Rules 1970, have a long history. Originally, the courts having utilised their inherent powers to order imprisonment, they would invoke the same powers to order discharge of the contemnor from prison. Typically, this was done where it was shown that the contemnor's contempt had been purged: see, eg, Ball v Etches (1817) 1 Russ& M 32439 ER 125; Gray v Campbell (1830) Russ& M 32339 ER 124. The relevant form in the third edition of Oswald's Contempt of Court (1910), London, Butterworths, Form 17 at 281, provided for discharge from custody on the ground that the prisoner had no means to pay the sum owing for which he or she was imprisoned and had suffered a sufficient duration of imprisonment. Other cases where discharge was ordered included where the contemnor could show that he or she enjoyed a legal privilege from arrest or committal: see, eg, R v Stobbs (1790) 3 TR 735100 ER 830; or where the proceedings for contempt were avoidable for irregularity, and the irregularity had not been waived: see, eg, Levi v Ward (1823) 1 Sim& St 33457 ER 134; Ellerton v Thirsk (1820) 1 Jac& W 37637 ER 419.
In England, the Contempt of Court Act 1830 (UK), s 15, provided for the making of rules for the discharge of contemnors where their contempt had been purged. The Contempt of Court Act 1832 (UK) went further and provided that the court, committing a person for contempt, had the power to discharge the person from imprisonment. Similar grounds of discharge were maintained. They included the case where the contemnor had purged the contempt and had apologised to the court. These are common features of the exercise of the power of discharge following conviction for contempt: see, eg, Yager v Musa [1961] 2 QB 214; Crowley v Brown [1964] 1 WLR 147; [1964] 3 All ER 72; Adriatic Terrazzo & Foundations Pty Ltd v Robinson, Owens, and Australian Building & Construction Workers Federation, South Australian Branch (1972) 4 SASR 294; Vaughan v Vaughan [1973] 1 WLR 11593 All ER 449; Von Doussa v Owens (No 3) (1982) 31 SASR 116.
In most of the foregoing cases it is pointed out that the procedure for discharge is not available to demonstrate that the original sentence was too severe when imposed. That is the business of an appeal, if such exists. Discharge is to permit the convicted contemnor to ask for clemency, demonstrate contrition, and establish that the punishment suffered already is enough to vindicate the authority of the court, and to punish the contemnor for the contempt found. Thus, in Crowley v Brown, the affidavit filed showed that, as a result of the proceedings, the contemnor in prison had lost his employment, and had been involved in large expense in getting legal aid in order to apply for bail and to appeal. Care must be taken in using some of the cases cited because a number of them relate to review on appeal, and not to review on an application for discharge.
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In England, the 1832 Act was repealed in 1965. By O 52, r 8(1) the Rules of the Supreme Court (Eng), power was given to the court, on the application of any person committed to prison for contempt, to discharge that person. The present rule in this State (Pt 55, r 14 of the Supreme Court Act 1970) appears to be the local attempt to reflect the same jurisprudence as developed in England under the common law, and later under the legislation mentioned. The reference in the rule to for a term is clearly designed to permit discharge short of the service of a specified term, the power to discharge a contemnor committed to prison for an indefinite term being indisputable and usually enlivened where the contempt has been purged.
The power of discharge, short of service of the full-term, is also found in the law of the other States of Australia. Against the background of the authorities cited, and in its context, the discharge power must be seen as normally directed to the provision of clemency to the imprisoned contemnor. It will usually be applicable only where the contemnor shows remorse. Ordinarily, some new considerations, which were not before the court which imposed the sentence, will have to be demonstrated in order to authorise the later court, of co-equal authority, to discharge the contemnor from prison short of the term originally imposed. Thus, in King v President, Councillors and Ratepayers of the Shire of Gisborne (Supreme Court of Victoria, Nathan J, 3 September 1993, unreported), Nathan J rejected an application for discharge before the expiry of a term of imprisonment for contempt. He found that the applicant was broken, distressed, and destitute. But that he did not demonstrate remorse or contrition, and could show no new factors warranting interference with the sentence originally imposed.
In Young v Registrar, Hanley JA assumed that the Court had power to discharge a contemnor from prison, noting that ‘[t]he rule confers a wide judicial discretion but an applicant must make out a proper case for a discharge’.[12] The other member of the Court, Powell JA, dissented on the question of whether the relevant rule gave the Court power to discharge a contemnor from prison.[13] However, in the event that there was power, his Honour stated that, in order to make an order providing for an early discharge from imprisonment, there should be placed before the Court:[14]
… evidence as to some change in the relevant circumstances since the making of the order for committal which makes it inappropriate – as, for example, because no good purpose will be served by detaining the contemnor further …, or, because the contemnor has purged his contempt … - that the contemnor be detained further.
[12]Ibid 289.
[13]Ibid 292.
[14]Ibid.
The next substantial Australian consideration of the jurisdiction to order the early release from prison of a contemnor was the judgment of Logan J in Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 7) (Chaste).[15] His Honour considered that the relevant provision of the Federal Court Rules 2011,[16] which was not materially different to the provision of the Supreme Court Rules 1970 (NSW) considered in Young v Registrar[17] (nor r 75.12 of the Rules), was a source of power to order a contemnor’s early release from prison.[18]
[15][2015] FCA 1103.
[16]Rule 42.22 which provided: ‘If a person charged is committed to prison for a term, the person may apply to the Court for an order for the person’s discharge before the end of the term’
[17]Chaste (n 15) [11].
[18]Ibid [10].
Justice Logan referred in detail to the judgment of the Court of Appeal of England and Wales in CJ v Flintshire Borough Council[19] (CJ v Flintshire) which he considered was of great assistance in considering the exercise of the relevant power in the Federal Court Rules.[20] Particular reference was made to the following questions identified by Wilson LJ which his Lordship considered might usefully be asked when considering applications for early discharge:[21]
[19](2010) 2 FLR 1224.
[20]Ibid [34], [40].
[21]Ibid [21].
(i) Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt?
(ii) Would the interest of the State in upholding the rule of law be significantly prejudiced by early discharge?
(iii) How genuine is the contemnor's expression of contrition?
(iv) Has he done all that he reasonably can to demonstrate a resolve and an ability not to commit a further breach if discharged early?
(v) In particular has he done all that he reasonably can (bearing in mind the difficulties of his so doing while in prison) in order to construct for himself proposed living and other practical arrangements in the event of early discharge in such a way as to minimise the risk of his committing a further breach?
(vi) Does he make any specific proposal to augment the protection against any further breach of those whom the order which he breached was designed to protect?
(vii) What is the length of time which he has served in prison, including its relation to (a) the full term imposed upon him and (b) the term which he will otherwise be required to serve prior to release pursuant to s.258(2) of the Criminal Justice Act 2003?
(viii) Are there any special factors which impinge upon the exercise of the discretion in one way or the other?
In elaborating upon the approach to be adopted to these questions, Wilson LJ continued:[22]
I am clear that the success of an application for an order for early discharge does not depend on favourable answers to all the questions. Nevertheless the first is a general question which, as May LJ suggested, probably needs an affirmative answer before early discharge should be ordered. The second will surely require a negative answer. An affirmative answer to the third will usually (although not always: see, for example, the Enfield case, cited above) be necessary but may not be sufficient. As Lord Clyde, the Lord President, said in the Scottish Court of Session in Johnson v. Grant [1923] SC 789 , at 791:
The mere circumstance that he presents a belated expression of contrition has, with regard to the public aspect of the matter, almost no importance at all. There is ample opportunity … for repentance before sentence is pronounced. The appeal is simply to the clemency of the court … and the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to the court and saying, “I realise my transgression and apologise for it” – however sincerely such an apology may be made.
I suggest that, subject to what I have said above, answers to the questions go into the melting pot; and out of it, once they have melted together, comes the conclusion.
[22]Ibid [22].
Lord Justice Sedley agreed with the judgment of Wilson LJ, noting that Judges will be assisted by the above, ‘so long as they are not treated as a tick-list but as windows on a problem which will always be case-specific and to which, as often as not, there will be no single right answer’.[23] In considering the exercise of the power of discharge, Sedley LJ stated that it is for the contemnor to advance a reason for discharge, not for the Court to find a reason for refusing it.[24] Further:[25]
When a judge comes to consider discharge from a sentence which has already been found both necessary and proportionate, he or she is looking at new factors, if there are any, albeit these may modify what is now necessary and what is now proportionate.
[23]Ibid [36].
[24]Ibid [37].
[25]Ibid.
In Thunder Studios Inc (California) v Kazal (No 6),[26] Rares J also observed that the issues referred to by the Court of Appeal in CJ v Flintshire were helpful in identifying the matters relevant to the exercise of the discretion to grant an early release of a contemnor.[27] His Honour commented that the judgments in CJ v Flintshire demonstrated that the discretion was to be exercised by evaluating the factors which might justify a departure from the continuing operation of a court order which had determined, on a final basis, that punishment by way of imprisonment that was necessary and appropriate in the factual circumstances which applied at the time of sentencing.[28] Rares J stated that, to succeed in an application for early discharge, a contemnor must firstly satisfy the Court that there is a reason for the person to be discharged early, and secondly, that it is in the interests of justice to do so.[29]
[26][2017] FCA 1573.
[27][45]. In that case, as in Chaste, the power in rule 42.22 of the Federal Court Rules.
[28]Ibid [46].
[29]Ibid [53].
Consideration
Given the close similarities between the terms of r 75.12 of the Rules and the sources of power discussed in the above authorities, it is clear that r 75.12 gives the Court power, as part of its contempt jurisdiction, to discharge a contemnor from prison before the expiry of their term of imprisonment.
I am also satisfied that the defendant has established a change in circumstances which, subject to the other matters to which I refer below, would warrant the exercise of the power in r 75.12. That change in circumstance is the belated, and very recent, preparation and filing and service of an account of the deceased’s estate contained in the Rossetti report. It was the defendant’s failure to file and serve such an account which was the essence of his contemptuous conduct. It has now, in substance, been remedied.
As stated by Wilson LJ in CJ v Flintshire, ‘…a person committed to prison for breach of a mandatory order to do an act … may reasonably be said to purge his contempt if he thereupon does the act or causes it to be done’.[30] Although the defendant has not wholly purged his contempt because the Rossetti report does not satisfy the requirements referred to in [2] above, including the requirement for verification, it would be unjust not to give substantial weight to the fact, acknowledged by the plaintiff, that the defendant’s conduct has resulted in substantial compliance with the orders of the Court. This is so particularly given that the plaintiff has adopted the view that, in practical terms, all that is required to secure full compliance with the orders of the Court is for the defendant to verify the contents of the Rossetti report.
[30]CJ v Flintshire (n 19) [6].
These recent developments permit me to conclude that, in all the circumstances as they now are, as distinct from those subsisting at the time of sentencing, the defendant has suffered punishment proportionate to his contempt. One of the five matters which I referred to in the reasons for judgment which was of particular significance in determining sentence was the following :[31]
First, it is a matter of profound concern that, despite extensive opportunity to do so, the defendant has not purged his contempt. Not only has he not remedied the effect of his conduct in defying the authority of the Court, his conduct, which damages the integrity of the judicial process, is continuing. The need for specific deterrence is therefore clearly engaged and is a matter to be given substantial weight in determining an appropriate penalty.
[31]Reasons for judgment [51].
This decisive consideration in respect of penalty is radically diminished in light of the substantial compliance with the orders of the Court which has now been achieved with the filing and service of the Rossetti report. In those circumstances, having been held in custody for one week, I am satisfied that the defendant has suffered punishment proportionate to his contempt, and I do not consider that the interests of the State in upholding the rule of law would be significantly prejudiced by his early discharge.
The above authorities make clear that a genuine expression of contrition by a contemnor is often a significant, although not essential, factor in the Court exercising its power to discharge a contemnor before the expiry of their term of imprisonment. In the reasons for judgment I expressed scepticism about various statements made by the defendant in the course of the proceedings which might be viewed as an expression of regret or apology; I gave limited weight to the general apologies and statements of regret expressed by the defendant from the bar table. [32] A weakness in the defendant’s present application is that it is not supported by any formal apology or expression of contrition by the defendant.
[32]Ibid [57].
However, at the hearing of this application, the defendant’s legal representative informed the Court, without objection from senior counsel for the plaintiff, that, in a brief conference with the defendant the previous day while he was in custody, he was instructed to offer the Court a sincere apology for his conduct and to inform the Court that he appreciates its seriousness. The defendant’s present circumstances in being held in custody, in addition to certain technical difficulties which I was informed had rendered difficult communications between the defendant and his solicitors, has understandably limited the capacity for the defendant to formally put before the Court direct evidence of his contrition in the short time since this application was foreshadowed. In those circumstances, and mindful of his status as an officer of the Court, I accept the statements made by the defendant’s legal representative from the bar table as indicating that the defendant is genuinely contrite in respect of his contemptuous conduct.
For the forgoing reasons, I am satisfied that the defendant has established good reason to be afforded clemency in relation to the punishment imposed upon him by the orders made on 12 September 2023 and that it is in the interests of justice for him to be discharged before the expiry of the term of his imprisonment. Orders in the following terms will be made providing for his immediate discharge from custody, on the condition that he verify by affidavit the accuracy of the contents of the Rossetti report:
1.Subject to the condition specified in paragraph 2, the defendant is forthwith released from his further obligation to undergo imprisonment in accordance with paragraph 1 of the order made on 12 September 2023, such that he is to be discharged from custody forthwith.
2.Within 14 days, the defendant file with the Registrar of Probates (in application S PRB 2004 04890) and serve on the plaintiff’s solicitors an affidavit made by him which exhibits the expert report of Mariano Rossetto filed on 22 March 2024 and which verifies the truth and accuracy of its contents to the best of his knowledge and belief.
3.Paragraphs 2 and 3 of the order made on 12 September 2023 are vacated.
4.Except as provided by paragraph 3 of this order, the order made on 12 September 2023 remains in force, but this order will prevail to the extent of any inconsistency.
5.Liberty to apply.
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