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…

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 3)

Details

AGLC: Fahey v Bird (No 3) [2024] VSC 148
Case: [2024] VSC 148
Decision Date: 28 March 2024

CaseChat Overview and Summary

In the matter of Fahey v Bird (No 3), the defendant Bird, as the executor of a deceased estate, was imprisoned for contempt of court. Bird sought to be discharged from imprisonment before the expiry of the term, alternatively seeking a suspended sentence and release from custody. The court was tasked with deciding whether Bird could be discharged from imprisonment for contempt, having substantially purged the contempt, and whether a suspended sentence was appropriate in the circumstances.

The primary legal issue was whether Bird could be discharged from imprisonment having substantially purged the contempt. The court examined the relevant provisions of Order 75 of the Supreme Court (General Civil Procedure) Rules 2015, and considered precedents such as King v President, Councillors and Ratepayers of the Shire of Gisborne, Young v Registrar, Court of Appeal, CJ v Flintshire Borough Council, Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd, and Thunder Studios Inc (California) v Kazal (No 6). The court also considered the principles regarding the nature and extent of the contempt, and whether the contemnor had substantially complied with the court's order.

The court found that Bird had substantially purged the contempt and was therefore entitled to be discharged. It considered Bird's conduct since the imprisonment, the duration of the imprisonment, and the nature of the contempt. The court determined that a suspended sentence was appropriate, taking into account the need to maintain public confidence in the administration of justice, and the need to ensure that the contemnor complied with the court's order. The court discharged Bird from imprisonment on the condition that he comply with the original order and refrain from any further contempt.

The court ordered that Bird be discharged from imprisonment on the condition that he comply with the original order and refrain from any further contempt. Bird was to be released from custody immediately, and the suspended sentence was to be effective for a period of 12 months. Bird was also ordered to pay costs of the proceedings.

Orders