Ferrier v Kelada (No 1)

[2004] VSC 355

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

No. 5872 of 2003

PETER NEIL FERRIER & JANIS HEATHER FERRIER	Plaintiffs
v
GEORGE RAYMOND KELADA & ORS	Defendants

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JUDGE:	Cummins  J
WHERE HELD:	Melbourne
DATES OF HEARING:	15 September 2004
DATE OF RULING:	15 September 2004
CASE MAY BE CITED AS:	Ferrier & Anor v Kelada & Ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 355

RULING NO. 1

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Contempt – Breach of Mareva injunction – Application by defendants for adjournment until hearing of substantive action refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	A. Herskope	Kalus Kenny
For the Defendants	J. Isles	S.P. Byrne

HIS HONOUR:

1. I have an application before me for yet another adjournment of this serious matter, an alleged contempt of an Order of a Judge of this Court.  I have heard nothing to persuade me that the matter should be adjourned yet again. 

1. Mr Isles has reviewed the material in support of his application for adjournment.  His primary submission is that there is an interface between the substantive matter yet to be tried and the proceedings for contempt.  To that end Mr Isles relied upon the observations of Barwick CJ in Australian Consolidated Press Ltd v Morgan & Anor[1].  But the learned Chief Justice in that case stated that contempt proceedings ordinarily should not be heard before the substantive action where the contempt proceedings involved for determination "at least the major part of the issues which had arisen for trial"[2].  In that case "the undertaking which was sought to be enforced" (in the contempt proceedings) "was in terms identical with the contract … for breach of which the suit was in part brought"[3].  That is not the case here.  Here the substantive action is for contribution from the defendants for payments made by the plaintiffs pursuant to a guarantee.  The contempt proceeding is for breach of an Order of a Judge of this Court, being a Mareva injunction.  It stands alone and separate from the substantive subject matter.  This point fails.

   [1](1965) 112 CLR 483 particularly at 489-490

   [2](489)

   [3](489)

1. It was next put on behalf of the defendants that hearing of the contempt proceedings is premature because if the substantive claim fails, the contempt claim necessarily will fail:  in the words of counsel for the defendants "if my client wins the case, then they haven't interfered with the course of justice".  This is a wholly misconceived submission.  The defendants could win the substantive action and still be guilty of contempt.  That is because the subject matter of the two proceedings is different, as I have said, and because the contempt alleged is failure to comply with a Court Order, which Order stands independently of the inter partes result of the proceedings.  This point fails.

1. It is next put on behalf of the defendants that the Order is ambiguous.  I am unpersuaded for purposes of the adjournment application that that is a persuasive argument.  No application was made by anyone on behalf of the defendants to take advantage of the courses held out by the Court, being both liberty to apply in paragraph 4 or "further order" in paragraphs 1 and 2.  Ambiguity, if any, is to be determined on the contempt application.  It is not a reason for adjournment.

1. Finally, a raft of matters have been raised before me as to technical matters of sealing and matters as to service, as to which I am unpersuaded found adjournment because those matters will not change by granting an adjournment.  It may well be the various matters argued by Mr Isles go to dismissing the summons, or they may not.  They do not, however, support an application for yet another adjournment of these matters.

1. The process of the Court, that is to say, an Order by a Judge of this Court, is not lightly to be put aside or to be adjourned time and again from its proper and authoritative implementation.

1. Accordingly, the application further to adjourn the matter is refused.

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