7 April 2017; 19 May 2017; 24 July 2017; 15 August 2017
Decision date:
14 March 2018
Before:
Simpson JA at [1]; Payne JA at [245]; Emmett AJA at [283]
Decision:
(1) Appeal against conviction allowed in part;
(2) Convictions in relation to counts 1, 5, 6, 8 and 13 are set aside;
(3) Appeal against sentence allowed. Set aside the sentence imposed by the primary judge and in lieu thereof:
(a) Sentence the appellant to 4 months imprisonment commencing on 18 December 2015.
(4) Set aside the costs order made by the primary judge for the costs of the trial and in lieu thereof order:
(a) each party pay their own costs of the trial.
(5) Each party pay their own costs of the appeal.
Catchwords:
CONTEMPT – applicable principles – nature of contempt alleged to be specified – proof beyond reasonable doubt – disobedience of court orders – orders must be unambiguous – must be wilful, not casual, accidental or unintentional
CONTEMPT – scandalising the court – interference with the course of justice – relevant considerations – protection of administration of justice – right to criticise courts and their decisions – scurrilous abuse
CONTEMPT – whether failure of accused to give evidence available in determination of guilt – where relevant facts peculiarly in knowledge of the accused
CONTEMPT – failure – non-compliance with costs order against company – whether sole director may be liable in contempt for failure to cause company to pay – whether company impecunious and unable to pay
CONTEMPT – failure to comply with subpoena – late production of documents – whether additional documents in existence and under control of accused
CONTEMPT – structuring financial affairs to avoid enforcement of orders by garnishee – whether capable of constituting contempt
CONTEMPT – sentencing
COSTS – civil jurisdiction – where mixed outcome – where appropriate to apportion costs – whether competing costs orders are inconsistent with the purpose of quelling litigation quickly, justly and cheaply
[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.
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Details
AGLC
Mahaffy v Mahaffy [2018] NSWCA 42
Case
[2018] NSWCA 42
Decision Date
CaseChat Overview and Summary
The appeal concerned alleged contempt of court by the appellant, Mr Mahaffy, in relation to various orders made by the primary judge. The proceedings involved allegations of disobedience of court orders, failure to comply with a subpoena, and contempt by scandalising the court. The court was required to determine whether the appellant had committed contempt of court in relation to these matters.
The legal issues before the court included whether the orders allegedly breached were sufficiently unambiguous, whether the non-compliance was wilful, and whether the appellant had acted to structure his financial affairs to avoid enforcement of orders. The court also considered the principles relating to contempt by scandalising the court, including the balance between the right to criticise and the need to protect the administration of justice. Furthermore, the court examined whether the appellant's failure to give evidence could be used in determining guilt, particularly where relevant facts were peculiarly within his knowledge, and whether a sole director could be held liable for a company's failure to comply with a costs order.
The court reasoned that for disobedience of a court order to constitute contempt, the order must be clear and unambiguous, and the disobedience must be wilful, not accidental or unintentional. In relation to contempt by scandalising the court, the court emphasised the need to protect the administration of justice while acknowledging the right to criticise. The court found that some of the convictions were not supported by the evidence, particularly where the alleged breaches were not clearly established as wilful or where the orders themselves lacked the necessary clarity. The court also considered the specific circumstances of the company's financial position in relation to the costs order.
The appeal against conviction was allowed in part, with convictions on counts 1, 5, 6, 8, and 13 being set aside. The appeal against sentence was allowed, with the original sentence being set aside and a new sentence of 4 months imprisonment imposed, commencing on 18 December 2015. The costs order made by the primary judge for the trial was also set aside, with each party ordered to pay their own costs of the trial and the appeal.
Orders
Orders of the court
(1) Appeal against conviction allowed in part;
(2) Convictions in relation to counts 1, 5, 6, 8 and 13 are set aside;
(3) Appeal against sentence allowed. Set aside the sentence imposed by the primary judge and in lieu thereof:
(a) Sentence the appellant to 4 months imprisonment commencing on 18 December 2015.
(4) Set aside the costs order made by the primary judge for the costs of the trial and in lieu thereof order: