Firstmac Fiduciary Services Pty Limited v Gilmour (No 3)
[2013] NSWSC 570
•17 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Firstmac Fiduciary Services Pty Limited v Gilmour (No 3) [2013] NSWSC 570 Hearing dates: 09/05/2013 Decision date: 17 May 2013 Jurisdiction: Common Law Before: Garling J Decision: (1)The defendant is guilty of contempt of court in that he disobeyed the Order of the Court dated 18 July 2012 by re-entering the land comprised in folio identifier 40/792157 being the whole of the land situated and known as Lot 40 in Deposited Plan 792157 at Jeremadra, Local Government Area Eurobodalla, Parish of Tomaga County of St Vincent, also known as 25 Old Mossy Point Rd Jeremadra NSW after possession had been delivered to the plaintiff.
(2)The defendant be committed to imprisonment for his disobedience of the Order of the Court dated 18 July 2012 for a fixed term of 3 months.
(3)A warrant be issued for the arrest of the defendant.
(4)Firstmac Fiduciary Services Pty Ltd is to notify Mr Gilmour, by email or by registered mail, within 24 hours of the exchange of contracts for the sale of the property, of the fact of that exchange and the time agreed for the completion of the contract.
(5)Firstmac Fiduciary Services Pty Ltd is to notify Mr Gilmour, by email or by registered mail, within 24 hours of the completion of the contract for the sale of the property, of the fact of that completion.
(6)The defendant pay the plaintiff's costs of the Motion on an indemnity basis.
(7)Liberty to either party to apply to the Court to discharge Order 2 on 2 hours' notice to the other party.
Catchwords: CONTEMPT OF COURT - deliberate obstruction of course of justice - conduct knowingly inconsistent with court order - intention to prevent plaintiff having benefit of judgment - absence of contemnor - discretion to proceed to hearing and sentence - fixed or indefinite term of imprisonment - warrant for committal to a correctional centre. Cases Cited: Anderson v Hassett [2007] NSWSC 1310
Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Australian Consolidated Press Limited v Morgan [1965] HCA 21; (1965) 112 CLR 483
Baltic Shipping Company v Dillon (1991) 22 NSWLR 1
Fisher v Marin [2007] NSWSC 1411
Firstmac Fiduciary Services Pty Limited v Gilmour [2013] NSWSC 255
Firstmac Fiduciary Services Pty Limited v Gilmour (No 2) [2013] NSWSC 416
Iberian Trust Limited v Founders Trust Limited [1932] 2 KB 87
Metcash Trading Ltd v Bunn (No.5) (2009) FCA 16
Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117; (1996) 139 ALR 99
Morris v Crown Office [1970] 2 QB 114
Spokes v Banbury Board of Health (1865) LR 1 Eq 42
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525Category: Principal judgment Parties: Firstmac Fiduciary Services Pty Ltd (P)
Brett Andrew Gilmour (D)Representation: Counsel:
A Kaufmann (P)
No appearance (D)
Solicitors:
Gadens Lawyers (P)
No appearance (D)
File Number(s): 2012/33768
Judgment
Firstmac Fiduciary Services Pty Ltd, the plaintiff, seeks that the Court find the defendant, Brett Andrew Gilmour, guilty of contempt of court by disobeying an order of this Court, made on 18 July 2012, by his conduct on each of 26 March, 5 April and 23 April 2013.
Mr Gilmour denies that he is guilty of contempt. However, he did not attend Court for the hearing of the matter.
For the reasons set out below, I am satisfied beyond reasonable doubt that Mr Gilmour is guilty of contempt of court.
Statement of Charge
The Statement of Charge filed by Firstmac and served on Mr Gilmour alleges that he, the defendant, has committed a contempt of court.
It is in the following terms:
"The defendant is charged with contempt by disobeying the sealed copy of the Court's judgment in these proceedings made 18 July 2012 issued with the endorsement:
"Brett Andrew Gilmour, you are served with a copy of this judgment and you are liable to imprisonment or to sequestration if you do not give possession of the land contained in folio identifier 40/792157 being the whole of the land situated and known as Lot 40 in Deposited Plan 792157 at Jeremandra, Local Government Area Eurobodalla, Parish of Tomaga County of St Vincent, also known as 25 Old Mossy Point Rd Jeremadra NSW (Property) to the plaintiff, or if you remain upon that Property, or if you re-enter that Property after possession has been delivered to the plaintiff" (endorsed judgment)"
served on the defendant on 12 March 2013, be re-entering the Property on or about:
26 March 2013; and/or
5 April 2013; and/or
23 April 2013.
Particulars
On 12 March at 2.42pm the endorsed judgment was served on the defendant.
Possession of the Property was delivered to the plaintiff at about 1.20pm on Wednesday 13 March 2013.
The defendant disobeyed the endorsed judgment by re-entering the Property on or about:
(a) 26 March 2013; and/or
(b) 5 April 2013; and/or
(c) 23 April 2013."
Onus of Proof
Regardless of whether the Court ultimately needs to, or does, categorise these proceedings as being for civil contempt or criminal contempt, it is clear that the charge of contempt must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 529 per Brennan, Deane, Toohey and Gaudron JJ.
In determining the facts in this case, and whether the contempt has been proved, it is necessary to always bear in mind the requirement which rests on a plaintiff to prove the allegation beyond reasonable doubt.
Contempt of Court - Principles
It is convenient if I set out the principles relating to contempt of court, which I understand I am bound to apply.
In Spokes v Banbury Board of Health (1865) LR 1 Eq 42, the Vice Chancellor, Sir William Page Wood said at 48:
"... the simple and only view is, that an order must be obeyed, and that those who wish to get rid of that order must do so by the proper course, on appeal. So long as it exists, the order must be obeyed, and obeyed to the letter; and anyone who does not obey it to the letter is guilty of committing a wilful breach of it. ..."
Before a contempt of court can be found, the order must "...in unambiguous terms direct what is to be done": Iberian Trust Limited v Founders Trust Limited [1932] 2 KB 87 at 95 per Luxmoore J; Australian Consolidated Press Limited v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 515-516 per Owen J, Windeyer J agreeing at 506.
Lindgren J in Microsoft Corporation v Marks (1996) 69 FCR 117 at 143; (1996) 139 ALR 99 at 121 said:
"The proposition that a contempt will not be found where the terms of an order or undertaking are unclear, ambiguous or apt to mislead (except, perhaps, if the prosecutor proved that the contemnor understood them in accordance with what the Court holds to be their true meaning) must be distinguished from certain other propositions. It does not signify that there is no breach wherever there is difficulty in the construction of the terms of an order or injunction which it falls to a court to resolve. Nor does it signify that contempt will not be found wherever an alleged contemnor did not understand the terms of an order of injunction according to their true meaning, much less wherever an alleged contemnor was unaware that his or her conduct constituted a breach of the order or undertaking (cf Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31)"
Where the contempt of court consists of a failure to comply with an order of the Court, it must be demonstrated that the contempt was wilful and not merely casual, accidental or unintentional: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98. However, it is not necessary for the applicant to prove that the contemnor intended to breach the order of the Court: see Anderson v Hassett [2007] NSWSC 1310; Mudginberri at 111; Matthews at [16] per Tobias JA.
It is not necessary to prove that the contemnor was aware that his or her conduct constituted a breach of the undertaking: Microsoft Corporation at 143 per Lindgren J; Metcash Trading Ltd v Bunn (No.5) (2009) FCA 16 at [9] per Finn J.
As Brereton J said in Anderson at [6]:
"The statement in Mudginberri (at 113) that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional, does not require proof of a specific intent but permits an alleged contemnor to show by way of exculpation that the default was 'casual, accidental or unintentional' ..."
It would not be a casual, accidental or unintentional default where the party bound by an order misconstrued the terms of the undertaking. As Hodgson JA said in Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 at 36:
"36 It is very desirable that orders be completely self-contained and self-explanatory. However, as pointed out by Campbell J in Kirkpatrick at [55], the recipient of an order is expected to try to understand and obey it. In my opinion, in considering whether an order is expressed so that the recipient knows or plainly should know what is required, it may be appropriate to have regard to the circumstances in which the order is made, including the terms of the reasons given for the order and elements of applicable law.
37 In my opinion also, if the only ambiguity on the face of the orders is between two meanings, and the recipient is shown to have breached the order whichever of the two meanings is adopted, that may in any event be sufficient to establish contempt, at least unless it appears that the breach may have been due to uncertainty as to what steps were required. "
Factual Background
On 31 January 2012, Firstmac commenced proceedings by filing a Statement of Claim in which it sought possession of land in Old Mossy Point Road, Jeremadra, which is a hamlet south of Bateman's Bay on the South Coast of NSW. It will be convenient to refer to the land as either the land, or else the property.
The cause of action was based upon a failure by Mr Gilmore to comply with the terms of a mortgage which was registered over the land.
On 18 July 2012, the Court ordered that Mr Gilmour was to give possession of the land to Firstmac and to pay its costs in the amount of $784 dollars.
On 19 July 2012, a Writ of Possession was issued by the Court to the Sheriff's Office at Bateman's Bay.
The first eviction was scheduled by the Sheriff to take place on 21 September 2012. By consent of Firstmac and Mr Gilmour, that eviction was stayed on 9 August 2012.
On 19 October 2012, a second Notice to Vacate was issued by the Sheriff, requiring Mr Gilmour to vacate the property on 29 November 2012. On that day, Mr Gilmour applied to the Court, and obtained ex parte, a stay on the Notice to Vacate. That stay expired on 6 December 2012.
On 6 December 2012, Mr Gilmour applied for an additional stay, which the Registrar refused. Apparently there was no eviction on that day.
On 11 December 2012, the Sheriff's Office, by a third Notice to Vacate, informed Mr Gilmour that he was required to vacate the property before 18 January 2013.
On 11 January 2013, Mr Gilmour applied to the vacation Judge, Hall J for a further stay on the eviction.
For the reasons which he then gave, Hall J refused to grant a stay.
On 18 January 2013, the Writ of Possession was executed by the Sheriff who took possession of the property. The locks to the property were changed. Firstmac was put into possession of the property.
Apparently, shortly thereafter, Mr Gilmour, took back possession of the property and changed the locks himself. As at 11 February 2013, when he appeared before Johnson J, Mr Gilmour remained in possession of the property.
On 30 January 2013, Firstmac filed a Notice of Motion seeking the issue of a Writ of Restitution so as to restore to its possession the land at Jeremadra. That Notice of Motion was heard by Johnson J on 11 February 2013. As Johnson J explained in his judgment, the procedure for a Writ of Restitution is contained in the Uniform Civil Procedure Rules 2005 as a means of allowing a plaintiff, in an orderly way pursuant to the process of the Court, to retake what is in truth the plaintiff's existing entitlement to possession.
In his judgment, which he delivered on 11 February 2013, Johnson J said:
"27. In my view, the plaintiff is entitled to the orders sought in the notice of motion. The defendant had no lawful right to retake possession of the Jeremadra property. Whatever his beliefs may be, they are, in my view, not supported by the law.
28. The plaintiff has an entitlement to the issue of the writ of restitution, which it seeks.
29. It is the expectation of the Court that the defendant will comply with the law in the plaintiff executing that writ of restitution, no doubt with the assistance of the Sheriff. It is the expectation of the Court, as well, that the plaintiff will take the course which Hall J mentioned, namely, that the plaintiff will agree to grant the defendant supervised access on 24 hours' notice, being access as reasonably required to remove timber and equipment and the plaintiff's personal belongings.
30. I note, however, that the defendant has, without the support of the law, had possession of the Jeremadra property between 18 January 2013 and today, so that he ought now prepare himself in all necessary ways to give possession of the property to the plaintiff."
His Honour delivered that judgment in the presence of Mr Gilmour.
On 15 February 2013, by a Notice of Motion filed that day, Mr Gilmour sought a stay of the execution of the Writ of Restitution. For the reasons which he gave on that day, Johnson J, refused to order that the Writ of Restitution be stayed. On the same day as Johnson J's judgment, the Writ of Restitution was executed by the Sheriff, who took possession of the property for Firstmac
In an email sent on 25 February 2013 by Mr Gilmour to Firstmac's lawyers, he informed them that "...I have repossessed my land". He went on to say:
"I wish to advise I have restored my rightful and legal possession of my property as of 1pm on 15th day of February 2013."
On 7 March 2013, when the matter was next before this Court, Mr Gilmour told Campbell J that he remained in possession of the property. The reason which brought the matter back to the Court before Campbell J was that Firstmac brought a further Notice of Motion seeking a further Writ of Restitution.
For the reasons which he gave on 7 March 2013, in Mr Gilmour's presence, Campbell J determined that Firstmac was entitled to the issue of a further Writ of Restitution: see Firstmac Fiduciary Services Pty Limited v Gilmour [2013] NSWSC 255. In his judgment, his Honour said:
"17. The orders of the Supreme Court of NSW, and of any court exercising lawful jurisdiction in NSW, form part of the fabric of our law. The orders of the Court are part of the law by which all of us are bound; the orders of the Court form part, an important part, of what we regard as the rule of law in our free and democratic society in Australia.
18. It needs to be pointed out, I think, that Mr Gilmour, equally with the rest of us, is bound by the rule of law and bound by the judgments and orders of this Court."
Campbell J ordered that a further Writ of Restitution be issued, and made an order pursuant to r 40.7 of the UCPR that a sealed copy of the Court's judgment of 18 July 2012 be issued bearing the following endorsement:
"Brett Andrew Gilmour, you are served with a copy of this judgment and you are liable to imprisonment, or to sequestration if you do not give possession of the land ... to the plaintiff, or if you remain upon that property, or if you re-enter that property after possession has been delivered to the plaintiff."
On 13 March 2013, Mr Gilmour was evicted from the property by the Sheriff with the assistance of two police officers who found it necessary to restrain him in handcuffs.
By 26 March 2013, Mr Gilmour had returned to the property, re-taken possession of it, and changed the locks.
The proceedings returned to court on 24 April 2013, before Schmidt J, who was then sitting as the Duty Judge. On that day, Firstmac moved on a Notice of Motion, which it filed in court, seeking leave for the issue of a further Writ of Restitution to restore possession of the land to it, and seeking orders consequential upon that. As well, it sought orders that Mr Gilmour be dealt with for contempt of court, including by committal to a correctional centre. This was the third Writ of Restitution which had been sought.
Mr Gilmour had notice of the application for the Writ of Restitution which was to be heard before her Honour, but did not attend.
For the reasons which she gave, her Honour was satisfied that she should make orders for a further Writ of Restitution because, on the material before her, although Mr Gilmour had been forcibly evicted on 13 March 2013, and the locks had been changed by the plaintiff, by 26 March 2013, those locks had been removed, they had been replaced by new locks and Mr Gilmour had by that stage re-entered the property and taken possession of it again: see Firstmac Fiduciary Services Pty Limited v Gilmour (No 2) [2013] NSWSC 416.
In an email of 21 April 2013 sent to Firstmac's lawyers, which was before Schmidt J, Mr Gilmour wrote, amongst other things, the following:
(a) "... your client cannot sell my land and I will never allow it to occur or consent to it";
(b) "I deny that any party has ever successfully taken possession of my land where I continue, and will continue, to reside with my three children indefinitely. The attempts to take possession of my land have been grossly unlawful and unsuccessful. I state that I refuse to comply with any future unlawful attempts to remove me and my children from our land";
(c) "The rule of law in Australia is that a free man can only be dispossessed by the lawful judgment of his equals and that has not happened";
(d) "Your client may not uphold any of the default judgment or judgment orders lawfully".
Mr Gilmour sent a further email to Firstmac's lawyers on 23 April 2013, which included the following statements:
"I object and deny these proceedings against me for restitution and/or contempt.
1. I deny your client any legal or lawful entitlement for any writ of restitution on the grounds that they have never taken possession of my property at ... Jeremadra. Your client has never set foot upon my land.
2. I cannot be held in contempt of any orders not made by a judge. Justice Campbell is as stated corum (sic).
3. No documents exist to rely on to support any of the above, as you have not produced any witness. The default judgment does not qualify as being ample witness for any writs of possession past tense or future.
4. I therefore do not consent to any of these proceedings against me.
5. I object and deny these proceedings against me for restitution and/or contempt for reasons as stated above."
On 23 April 2013, there was a conversation between Mr Gilmour and Mr David Hayes-Williams, a real estate agent retained by Firstmac. Mr Hayes-Williams called Mr Gilmour to ascertain whether he was still at the property and whether he had any intention of leaving. Mr Gilmour said to Mr Hayes-Williams, words to this effect:
"I am still at the property with my possessions.
If the bank arranges another eviction you will be compromising your position by attending the eviction, which I consider is illegal and you will be trespassing on my property."
On 24 April 2013, for reasons which she then delivered, Schmidt J issued a further Writ of Restitution. She made other consequential orders including dispensing with personal service of various documents, and permitting service by email.
With respect to the final hearing of the contempt charge, her Honour ordered that Mr Gilmour file and serve any affidavit upon which he sought to rely to defend the contempt charge by 30 April 2013.
Current Proceedings
The proceedings came before me on 5 May 2013. At that time there was no appearance by Mr Gilmour.
In addition to dealing with matters of evidence, including receiving the affidavit of the solicitor with day-to-day carriage of Firstmac's matter, Ms Vetrova of 3 May 2013, and providing for service of that and other documents, I made the following orders about the further hearing of the contempt proceedings, namely:
(a) adjourn the proceedings and hearing of contempt charge until 11.30am on 9 May 2013, at which time the final hearing will occur;
(b) order that Mr Brett Gilmour attend in person at Court 11C on Thursday 9 May 2013 at 11.30am;
(c) costs reserved.
I ordered that a copy of the orders which I had made that day be served on Mr Gilmour either by email or personal service, by midday on Saturday 4 May 2013.
I am satisfied that service of the orders occurred on 3 May 2013 by email. Further personal service occurred on the following day when the documents were delivered to the property.
On 9 May 2013, at 2.35am, Mr Gilmour sent to my Associate, and to Firstmac's lawyers, an email about the proceedings which were listed at 11.30am that day. The email was marked as an exhibit in the proceedings. It said:
"I, Brett, do not enter into the courts today. I remain absent and unable to attend.
Reasons.
I have a shoulder injury from the forced eviction that took place at my residence during the forced eviction on the 13th march 2013. Two officers of the sheriff and one policeman were on top of me placing excessive force on my body and head.
I, and my three children have a stomach bug causing gastro, vomiting and headache.
My vehicle has a broken windscreen and no clutch and is not road worthy.
I, Brett, am going to need considerable time to recover so that i may attend at a later date. I also require time to obtain a lawyer suitable to represent me. I have not yet been successful obtaining a lawyer to represent me as all of the 12 lawyers that i have approached have all been to busy to aid me at such short notice.
The charge of contempt.
I humbly ask the court to state in writing what substance binds me to, and to what law specifically am i bound ? i need to understand this to be able to establish my legal position and to understand what it is that i am defending myself against.
I humbly ask the court whom is it that i may be punished by?
The state, the crown or the Queen of England?
It is important to me to know so that i may learn a better understanding.
I, Brett, sovereign, free , breathing, living, flesh and blood man abide in the natural law. The Holy law as authorised by her most excellent Majesty Queen Elizabeth II in right of Regina. Man cannot serve two masters.
I humbly request the court officials to produce oath as sworn to her most excellent Majesty Queen Elizabeth II in right side of Regina.
To court officials acting as administrators i humbly require cure and maintenance.
To court officials acting as justice at admiralty law i humbly require remedy.
To court officials acting as judges i humbly require to cease and desist all matters pertaining to case number 2012/33768 to set aside from a default judgement for trial by jury.
To court officials acting as Priests i humbly ask forgiveness of trespass just i forgive those who trespass against me.
I humbly request the court to endorse all documents of the court with wet ink signatures and Royal Seal.
I humbly request the court to show me full disclosure of the divides of plunder proposed.
I humbly request the court to provide details of any contract i may have with the court including full disclosure of terms and conditions.
I humbly request that the court address myself as Brett and acknowledge that i am not the person or the entity of Mr Gilmour.
Thank you for reading these requests.
In Truth and in God we trust and in prayer of your blessings.
Brett Gilmour."
Evidence at the Hearing
When the proceedings were called on for hearing on 9 May 2013, Mr Gilmour's name was called outside the Court. Mr Gilmour did not appear.
Counsel for Firstmac read a number of affidavits being:
(a) affidavit of Ms Vetrova of 23 April 2013; 3 May 2013 and 8 May 2013;
(b) affidavit of David Hayes-Williams of 23 April 2013;
(c) affidavit of Craig Clive Brookes of 14 March 2013 and 24 April 2013.
In addition, the plaintiff tendered a number of documents.
As Mr Gilmour was not present, there was no cross-examination on any of the contents of the affidavits, and none of the factual matters contained in those affidavits was challenged.
As well, the earlier judgments of Justices Hall, Johnson, Campbell and Schmidt were drawn to the Court's attention.
Facts
I am satisfied that the following facts have been proved beyond reasonable doubt.
On 18 July 2012, an order was made by this Court, pursuant to which Firstmac was entitled to possession of the property.
A Writ of Possession, being the means by which Firstmac's entitlement to possession of the property would be obtained, was issued by the Court on 19 July 2012.
Mr Gilmour was evicted from the property on 18 January 2013 and 15 February 2013. After each of these evictions occurred, Mr Gilmour re-entered the property and re-took possession of it.
Firstmac was again put into possession of the property on 13 March 2013, when the Sheriff attended the property with police officers and Mr Gilmour was removed from the property. Firstmac then engaged a locksmith to change the locks on the property.
By 26 March 2013, Mr Gilmour was once again in possession of the property, contrary to the Court order. His possession was to the exclusion of Firstmac, because he had changed the locks on the property, and was denying Firstmac the chance to enter onto, or deal with the property. He entered into possession at a time prior to 5pm on 26 March 2013.
Having regard to all that had gone before in the proceedings in the Court, it is absolutely clear that Mr Gilmour knew that he was in possession of the property contrary to the Court's order.
Mr Gilmour has been in possession of the property at all times since then. Specifically, I find that he was in possession of the property, contrary to the Court's order on 5 April 2013, when he admitted to Mr Hayes-Williams that this was so. As well, on 23 April 2013 he was in possession of the property to the exclusion of Firstmac, and contrary to the Court's order, as he admitted in his emails sent on 21 April 2013 and 23 April 2013.
Mr Gilmour has been aware of the order of the Court of 18 July 2012, since being served with it and the Writ of Possession dated 19 July 2012. Whilst the date of that service is not clearly proved, it must have been no later than 9 August 2012, when by agreement with Firstmac, the Writ of Execution was first stayed. The fact that in further proceedings in this Court further stays of the Writ of Execution were sought by Mr Gilmour and granted, in both October and December of 2012, abundantly confirms the state of his knowledge.
It is apparent from the proceedings before, and the judgments of Hall J in January 2013, Johnson J in February 2013, and Campbell J in March 2013, that notwithstanding that he knew that Firstmac were entitled, by an order of this Court, to possession of the property and that that order was not the subject of any appeal or application for leave to appeal, Mr Gilmour entered into and remained in possession of the property, knowingly contrary to the Court order. This was a wilful disobedience to the Court's order.
On 12 March 2013, Mr Gilmour was served with a copy of the Court order of 18 July 2012, upon which was endorsed a notice, the complete detail of which is set out above in [4] to the effect that he was liable for imprisonment or sequestration, if possession of the property was not given to Firstmac.
An order with a similar notation was served on him on 24 April 2013, in accordance with the orders of Schmidt J, made that day.
Mr Gilmour is on notice of the charge of contempt brought against him by Firstmac. He has not challenged the evidence of Firstmac upon which the order is sought. He has not led any evidence in opposition to the order.
Mr Gilmour's Attitude
In his most recent email to the Court, Mr Gilmour said that he was unable to attend Court for three reasons. Two of these were said to be related to medical conditions, one being a shoulder injury suffered on 13 March 2013, and the second being a stomach bug "causing gastro, vomiting and headaches".
No evidence is tendered in support of either of these conditions which Mr Gilmour recorded in his email. I am not satisfied that, if the injury occurred on 13 March 2013, it has prevented him from attending Court. Further, I am not satisfied that his present state of health has prevented him from attending Court if he wished.
The third reason proffered was that he was unable to use his motor vehicle which was unregistered. Again, assuming that this is so, it is not an adequate reason, in my assessment, for him not to be in attendance at Court.
The real reason for his not attending Court is to be found in the terms of his emails to Firstmac's lawyers of 21 and 23 April 2013, and to the Court on 9 May 2013, which I have set out earlier. It is quite clear that having engaged in a course of deliberate defiance to the Court's order with respect to the possession of the property Mr Gilmour now seeks. on entirely spurious grounds, to challenge the Court's authority to deal with him.
I am well satisfied that Mr Gilmour has chosen not to attend and that he has no good reason for such failure.
The absence of any challenge to Firstmac's evidence and the absence of an appeal against the order made by the Court for the possession of the property, together with the absence of any attempt at compliance with the Court's orders, all combine to satisfy me that Mr Gilmour's conduct is intentional and deliberate.
Discernment
The facts are plain. Mr Gilmour has knowingly and intentionally defied the order of the Court to give Firstmac possession of his property. Notwithstanding his eviction from the property on a number of occasions, he has returned and taken possession of it. He remains in possession of the property at the present time, and says that he proposes to remain in possession of it.
The order of the Court is expressed in plain and unambiguous terms. Mr Gilmour has been aware of the order since, at least, August 2012. There is nothing which has been said by him, or done by him to suggest that he does not understand the order, or what is necessary to comply with it.
By his conduct, he has made it plain that he has not, and will not comply with the order.
He has exhibited an attitude of determined disobedience to the Court order. I am satisfied beyond reasonable doubt that Mr Gilmour is in contempt of court by his failure to comply with the Court's order of 18 July 2012, requiring him to give possession of the property to Firstmac in the way set out in the Statement of Charge.
I am also satisfied on the particular facts and circumstances of this case, that the contempt is not "casual, or accidental and unintentional disobedience". The conduct of Mr Gilmour does not permit any conclusion of such a kind to be reached. On the contrary, the numerous times that Mr Gilmour has been warned that he is in contempt, by remaining in possession of the property, despite the warning that he may be imprisoned for that contempt, his continuing to remaining in contempt clearly supports the conclusion that this conduct is not casual, accidental or unintentional.
Appropriate Order
An order for possession of land of the kind made in the proceedings gives effect to the rights of a creditor (or any assignee of the rights), which have accrued by contract between the parties. In this case that contract has resulted in a mortgage being registered, giving an interest in the land to the mortgagee.
It is in the public interest that parties be held to their contractual obligations, because unless that occurs, justice is not being done between the parties: Baltic Shipping Company v Dillon (1991) 22 NSWLR 1 at 9 per Gleeson CJ; Fisher v Marin [2007] NSWSC 1411 at [110] per Patten AJ.
Further, disobedience of a court order which constitutes a contempt of court, is a matter which affects the administration of justice generally. The underlying rationale for the power of a court to punish for contempt is that it is necessary to uphold and protect the administration of justice. The administration of justice is brought into disrepute if disobedience to a Court's order goes unpunished: Mudginberri at 106-107 per Gibbs CJ, Mason, Wilson and Deane JJ.
In this case, Mr Gilmour's disobedience is deliberate and intentional. It has occurred on a number of occasions and continues. He does not seek to ameliorate his contempt but does, I am well satisfied, intend to remain in possession of the property to the exclusion of Firstmac.
His possession of the property has the consequence that Firstmac cannot market or offer the property for sale because their agent cannot access the property, prepare marketing material and show it to prospective purchasers. His disobedience to the Court's order is impacting on the interests of Firstmac.
But more importantly, Mr Gilmour's disobedience to the Court's orders and the subsequent need for further proceedings by Firstmac for the obtaining of Writs of Restitution, on a number of occasions, directly affects the administration of justice. Court time and resources are occupied dealing with Mr Gilmour who, I am well satisfied, is intent on a course of conduct in knowing disobedience to the Court's orders.
There is no other description for his conduct other than that it is contumelious. His conduct is in stubborn opposition to the terms of the order, and can only be described as a course of determined disobedience. It represents a determined challenge to the authority of this Court.
Contempt of court is a distinctive offence attracting remedies which are sui generis: Morris v Crown Office [1970] 2 QB 114 at 129. As the plurality in the High Court said in Mudginberri at [115]:
"It is required of the chosen remedy that it be effective, no more but not less. For, if it is not effective, serious and lasting damage to the fabric of the law may result."
As was earlier said in that case, at [114]:
"There are ample precedents where courts have taken strong measures in order to coerce compliance of an order of the Court. In the case of an individual contemnor, he may be imprisoned until the contempt is purged. The committal to prison is of a conditional nature, remaining in force until the contempt comes to an end or further order is made. As soon as the contempt is purged, the offender is entitled to release ex debito justitiae."
Courts can impose penalties but suspend them in order to achieve compliance with the order. It is clear that the Court has the power to fine where appropriate. It has the power to imprison. It has the full range of remedies to ensure that the administration of justice is upheld.
The question then becomes what ought happen in the circumstances of this case.
Firstmac wish to have possession of the property in order to sell the property. Mr Gilmour, by his contempt, is engaged on a course of conduct to resist Firstmac taking possession of the property and selling it.
There is little evidence of Mr Gilmour's personal circumstances. He has chosen not to put on any evidence of those. So far as can be gleaned, it appears that he undertakes work in the timber industry, and has timber and milling equipment on the property. In his emails to the Court, he has said that he has three children who, it would appear, live with him from time to time, but it is quite unclear whether he has sole custody and care of those children.
But these matters which are of importance, cannot in the circumstances of this case, weigh sufficiently heavily on the Court to prevent the Court from taking proper steps to vindicate the administration of justice.
I am satisfied that whilst ever Mr Gilmour retains his present attitude, he will be likely to make every attempt to frustrate Firstmac's attempt to take possession of the property and sell it. As well, the very nature of Mr Gilmour's contempt is deserving of punishment and retribution. Matters of deterrence are not unimportant.
In all of the circumstances, I am satisfied that I should make an order that Mr Gilmour be imprisoned for his contempt.
His imprisonment should be fixed for a period of three months.
I have decided that the period of three months imprisonment is the minimum necessary in all of the circumstances to enable Firstmac to take possession of the property, and market it for sale without any risk of disruption from Mr Gilmour re-taking possession of the property.
The selected fixed period is also, as it seems to me, an appropriate period to act as a punishment of Mr Gilmour for his disobedience of the Court's order, which I regard as serious. I also regard the fixed period as a minimum period appropriate to achieve the aim of deterring Mr Gilmour from further disobedience to the Court's order.
As I have said, although I have determined a fixed period of imprisonment, it is clearly open to Mr Gilmour to make an earlier application to the Court to purge his contempt. To ensure that he can exercise this liberty to apply to the Court at the earliest opportunity, an order will be made that Firstmac is to notify Mr Gilmour when contracts are exchanged for the sale of the property, and that Firstmac is also to notify Mr Gilmour when the exchanged contracts have settled.
Order
I make the following orders:
1. The defendant is guilty of contempt of court in that he disobeyed the Order of the Court dated 18 July 2013 by re-entering the land comprised in folio identifier 40/792157 being the whole of the land situated and known as Lot 40 in Deposited Plan 792157 at Jeremadra, Local Government Area Eurobodalla, Parish of Tomaga County of St Vincent, also known as 25 Old Mossy Point Rd Jeremadra NSW after possession had been delivered to the plaintiff.
2. The defendant be committed to imprisonment for his disobedience of the Order of the Court dated 18 July 2012 for a fixed term of 3 months.
3. A warrant be issued for the arrest of the defendant.
4. Firstmac Fiduciary Services Pty Ltd is to notify Mr Gilmour, by email or by registered mail, within 24 hours of the exchange of contracts for the sale of the property, of the fact of that exchange and the time agreed for the completion of the contract.
5. Firstmac Fiduciary Services Pty Ltd is to notify Mr Gilmour, by email or by registered mail, within 24 hours of the completion of the contract for the sale of the property, of the fact of that completion.
6. The defendant pay the plaintiff's costs of the Motion on an indemnity basis.
7. Liberty to either party to apply to the Court to discharge Order 2 on 2 hours' notice to the other party.
Decision last updated: 17 May 2013
13
0