Mahaffy v Mahaffy
[2013] NSWSC 245
•28 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: Mahaffy v Mahaffy [2013] NSWSC 245 Hearing dates: 09/09/2011, 21/10/2011, Written submissions: December 2011 Decision date: 28 March 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Charges 8, 11, 17 and 18 set out in the Amended Statement of Charge filed on 9 October 2011 be, and hereby are, summarily dismissed.
(2) Jeffrey Mahaffy is to file and serve a Further Amended Statement of Charge which accords with this judgment on or before 4pm 24 April 2013.
(3) The Amended Notice of Motion filed on 2 August 2011 by David Mahaffy, is otherwise dismissed.
(4) Each party is to pay his own costs of the Notice of Motion, including any reserved costs.
(5) Jeffrey Mahaffy is to file and serve all affidavits of any witnesses, including himself, upon which he proposes to rely in support of his claims for contempt on or before 4pm 12 July 2013.
(6) Jeffrey Mahaffy is to file and serve a list of documents which he proposes to tender as part of his case in chief, on or before 4pm 12 July 2013.
(7) David Mahaffy is to file and serve all affidavits of any witness, including himself, upon which he proposes to rely in defence of the contempt allegations, on or before 4pm 11 October 2013.
(8) David Mahaffy is to file and serve a list of all documents which he proposes to tender as part of his defence of the contempt proceedings on or before 4pm 11 October 2013.
(9) Stand proceedings over for directions before the Registrar of the Common Law Division at 9am on 18 October 2013.
(10) Direct that if either party has not complied with any order of the Court, or else will not be able to comply with any order of the Court, that party is to forthwith restore the matter to the List of the Registrar of the Common Law Division, and is to provide at that time an affidavit which fully sets out all of the facts, matters and circumstances upon which he relies to explain and excuse his non-compliance with the Court's order, or else his prospective non-compliance.
(11) General liberty to restore on 24 hours notice.
Catchwords: PRACTICE AND PROCEDURE - Summarily dismissal of a charge of contempt. CONTEMPT - Deliberate failure to comply with a court order requiring the payment of moneys - Disregard of orders for costs under the Civil Procedure Act 2005 and alleged deliberate conduct to prevent the enforcement of costs orders - A charge of contempt for alleged words spoken, or otherwise written and filed, in Court. Legislation Cited: Bankruptcy Act 1869 (UK)
Civil Procedure Act 2005
Debtors Act 1869 (UK)
District Court Act 1973
Imprisonment for Debt, Rules [1834] NSW Sup C 16Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Bates v Bates (1888) 14 P.D. 17
Bearden v Georgia 461 US 660 (1983)
Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76
Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62
Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hughes v Department of Human Resources 502 S.E. 2d 233 (1998)
In Re Edgecombe, Ex Parte Edgecombe [1902] 2 KB 403
Ingram v Ingram [1927] VLR 335
Leavis v Leavis [1921] P 299
Lewis v Ogden [1984] HCA 26; (1984) 153 CLR 682
Markisic v The Commonwealth of Australia [2007] NSWCA 92; (2001) 69 NSWLR 737
Parashuram Detaram Shamdasani v King-Emperor [1945] AC 264
R v Dunbabin; ex parte Williams [1935] HCA 34; (1935) 53 CLR 434
R v Fletcher; ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248
Siminton v Australian Prudential Regulation Authority [2008] FCAFC 89
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Tate v Short 401 US 395 (1971)
Williams v Illinois 399 US 235 (1970)
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525Texts Cited: Borrie and Lowe: The Law of Contempt (4th Ed, 2010) Category: Procedural and other rulings Parties: Jeffrey Mahaffy (Applicant)
David Mahaffy (Respondent)Representation: Counsel:
Mr Jeffrey Mahaffy (Applicant) (In person)
Mr Jauncey (Respondent)
File Number(s): 2010/119143
Judgment
David Bruce Mahaffy and his brother, Jeffrey Robert Mahaffy, have been engaged in litigation against each other in a number of different courts for many years.
William Shakespeare's tragic story, Richard III, which tells of the rivalry, dislike and distrust between Richard, Duke of Gloucester and his brother, King Edward IV, pales when considering the ferocity, constancy and intensity of the litigation between the Mahaffy brothers. They have had many winters of discontent.
This case is another piece of the litigation between these warring brothers.
Without meaning disrespect to them, I will refer in this judgment to each of the Mahaffy brothers by their first names, David and Jeffrey.
Procedural history
On 30 November 2010, Jeffrey filed a Notice of Motion in the Court of Appeal in which he sought, amongst other orders which are now no longer relevant, the following orders:
"(a) that David Bruce Mahaffy be held in contempt of Court for his conduct and actions in court matters as well as his repeated failure to comply with orders and directions of the District Court of NSW and the Supreme Court of NSW;
(b) a custodial sentence be given to David Bruce Mahaffy as punishment for his contempt of Court;
(c) the costs of this application be ordered against [David Bruce Mahaffy]."
Accompanying the Notice of Motion was a document entitled Statement of Charge. On 22 June 2011, the Court of Appeal (Giles, McColl and Basten JJA) remitted the Notice of Motion seeking these orders to a Judge of the Common Law Division. The Court of Appeal also reserved to the Judge of the Common Law Division who disposes of the matter, the question of costs of the proceedings to that time.
On 2 August 2011, David sought and was granted, leave to file in Court an Amended Notice of Motion which sought the summary dismissal of the contempt charges.
Directions were given for the disposition of that matter, with the assistance of written submissions and for the determination of that motion in advance of the substantive proceedings.
Further directions were given which had the effect that on 9 October 2011, Jeffrey filed an Amended Statement of Charge which he seeks to rely upon.
Directions also were given for further written submissions. These submissions were not provided in a timely fashion, although they were eventually provided.
Ultimately, the matter which falls to be determined in the judgment is David's Amended Notice of Motion which seeks orders that Jeffery's Amended Statement of Charge be summarily dismissed.
Amended Statement of Charge
The Amended Statement of Charge is 27 pages in length. It sets out 18 charges and provides lengthy particulars in respect of most of those charges.
As Jeffrey explained it to the Court, he had added extensive particulars in, and made some other changes to, the original Statement of Charge, to take account of the submissions by counsel for David, that the original Statement of Charge was unsustainable because of a lack of particulars, and in respect of one Charge, an allegation of duplicity.
In order to understand the submissions as to whether summary dismissal should be ordered with respect to the Amended Statement of Charge, it is best if I set out each Charge, but having regard to the length of the particulars, I will not set out the particulars.
The Charges are as follows:
"1. David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by failing to have DB Mahaffy & Associates Pty Ltd pay $136,679.46 to Jeffrey Mahaffy pursuant to orders made on 4 September 2009 by the District Court of New South Wales.
2. David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by failing to have DB Mahaffy & Associates Pty Ltd pay $15,000 to Jeffrey Mahaffy within 3 days pursuant to orders made on 7 December 2009 by the District Court of New South Wales.
3. David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by failing to pay $28,655.83 to Jeffrey Mahaffy forthwith pursuant to orders made on 16 April 2010 by the District Court of New South Wales.
4. David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by failing to pay $28,655.83 plus applicable interest to Jeffrey Mahaffy by 27 May 2010 pursuant to order made on 14 May 2010 by the District Court of New South Wales.
5. David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by failing to pay $25,000.00 to Jeffrey Mahaffy within 7 days pursuant to orders made on 16 July 2010 by the District Court of New South Wales.
6. David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by failing to comply with Subpoena to Produce served on him, that was filed on 5 July 2010 and returnable on 16 July 2010 in the District Court of New South Wales.
7. David Mahaffy challenged the authority of the Court, i.e. the authority of Judge McLoughlin and committed contempt of court by making various verbal allegations before the court and statements in affidavits and letters tendered to the court that Judge McLoughlin has made 'incorrect order' and 'illegal orders' and that Judge McLoughlin is biased towards him.
8. David Mahaffy challenged the authority of the Court, i.e. the authority of Judge Gibb and committed contempt of court by making various verbal allegations before the court and statements in affidavits tendered to the court that Judge Gibb has made 'incorrect orders'.
9. David Mahaffy challenged the authority of the Court, i.e. the authority of Justice Giles and Justice Sackville and committed contempt of court by failing to pay $22,000.00 to Jeffrey Mahaffy within 7 days pursuant to orders made on 23 September 2010 by the Supreme Court of New South Wales.
10. David Mahaffy challenged the authority of the Court, i.e. the authority of Justice Rein and committed contempt of court by failing to pay $1,100.00 to Jeffrey Mahaffy within 7 days pursuant to orders made on 1 October 2010 by the Supreme Court of New South Wales.
11. David Mahaffy challenged the authority of the Court, i.e. the authority of Justice Giles and Justice Sackville and committed contempt of court by knowingly misleading the Supreme Court of New South Wales on 23 September 2010 by seeking an adjournment of the hearing set of his Summons application for that day to allow for his legal representatives time for preparation and the filing of further required evidence.
12. David Mahaffy challenged the authority of the Court, i.e. the authority of Justice Giles and Justice Sackville and committed contempt of court by knowingly misleading the Supreme Court of New South Wales on 8 October 2010 by falsely informing the court that the District Court of New South Wales had agreed to and was going to revisit old cost order and judgments on 9 November 2010 that were the subject of the current Supreme Court Summons application.
13. David Mahaffy challenged the authority of the Court, i.e. the authority of Justice White and committed contempt of court by making various verbal allegations before the Court and statements in affidavits tendered to the court that Justice White had made 'incorrect orders' and 'illegal orders' and is also biased towards him.
14. David Mahaffy challenged the authority of the Court, i.e. the authority of the District Court of New South Wales and committed contempt of court by filing of two unsuccessful Summons applications in the Supreme Court of New South Wales, seeking injunction to stop the sale and settlement of sale of property as well as the filing of two Caveats with the Land & Property Management Authority to renege on a Mortgage offered and consented by him for satisfaction of a cost order in favour of Jeffrey Mahaffy.
15. David Mahaffy challenged the authority of the Supreme Court of New South Wales and committed contempt of court by filing of two duplicate Summons applications in the Supreme Court of New South Wales, seeking injunction to stop the sale and settlement of sale of property and further the filing of two Caveats with the Land & Property Management Authority in ignorance to and in contravention of the outcome of the Orders made for the Summons applications in the Supreme Court of NSW, with respect to the Mortgage over property against David Mahaffy.
16. David Mahaffy challenged the authority of the Court, i.e. the authority of the District Court of New South Wales and committed contempt of court by conducting his financial affairs and operating his bank accounts so as to deliberately avoid enforcement of Garnishee Court Order for judgments and cost orders owing by him and DB Mahaffy & Associates Pty Ltd to Jeffrey Mahaffy.
17. David Mahaffy challenged the authority of the Court, i.e. the authority of the District Court of New South Wales and committed contempt of court by commencing and continuing various proceedings for vexatious and vindictive purpose against Jeffrey Mahaffy that are an abuse of process.
18. David Mahaffy challenged the authority of the Court, i.e. the authority of the Supreme Court of New South Wales and committed contempt of court by commencing and continuing numerous proceedings for vexatious and vindictive purpose against Jeffrey Mahaffy that are an abuse of process.
It can be seen that a number of the Charges deal with a deliberate failure to comply with a court order requiring the payment of moneys. These are Charges 1, 2, 3, 4, 5, 9 and 10.
Charges 1, 2, 3, 4 and 10 deal with court orders for the payment of costs. The orders for costs were made pursuant to the power of each of the courts under the Civil Procedure Act 2005. Orders 5 and 9 provided for a stay of proceedings, which stay was made conditional upon the payment of a sum of money towards the satisfaction of an outstanding costs order.
Allied with the allegations of deliberate non-payment of costs orders in Charges 1 to 4 inclusive, is Charge 16, which asserts that David arranged and conducted his affairs so as to prevent enforcement of the costs orders.
It will be convenient to group theses Charges together, and call them the "Money Order Charges".
A number of the Charges relate to words said or written by David about the conduct of two Judges of the District Court and one Judge of the Supreme Court. These allegations are to be found in Charges 7, 8 and 13. These Charges assert that the words used, either orally or in writing, about each of the Judges constituted a contempt. Charges 11 and 12 depend upon allegations of intentionally and knowingly misleading the Court of Appeal.
Since these charges refer to words spoken in Court, or else words written in documents filed in, or presented to the Court, I will refer to these Charges as the "Court Behaviour Charges".
Charge 6 stands alone, and asserts an intentional failure to comply with a subpoena to produce records to the District Court of NSW. I will refer to this as the "Subpoena Charge".
Charges 14, 15, 17 and 18 refer to commencement and continuation of proceedings either for purposes which constitute a contempt of Court or, alternatively, which of themselves constitute a contempt of Court. I will refer to these four Charges as the "Proceedings Charges".
It will be convenient to address the submissions by counsel for David by reference to each of these groups of Charges, since substantially the same considerations will apply to each group of Charges.
However, before doing so it is appropriate to draw attention to some principles of law dealing with allegations of contempt of Court, and also those which are applicable to the summary dismissal of proceedings.
I note that, insofar as Charges 1 to 8 (inclusive), 14 and 17, each of which relate to contempt of the District Court of New South Wales, counsel for David did not draw attention to the provisions of s 199 of the District Court Act 1973, and did not submit that the existence of that statutory power in the Court to deal with allegations of a contempt of Court committed in the face of the Court, or within the hearing of the Court, meant that Jeffery was not entitled to bring such Charges himself. Accordingly, this judgment does not deal with any such question of law.
Contempt of Court - Principles
The authorities by which I am bound suggest that the following principles are applicable to Charges of contempt:
(a) if a matter constitutes a baseless attack on the integrity or impartiality of courts and judges, it may constitute a contempt warranting a remedy of a fine or imprisonment: R v Fletcher; ex parte Kisch (1935) 52 CLR 248 at 257 per Evatt J; Gallagher v Durack (1983) 152 CLR 238 at 243 per Gibbs CJ, Mason, Wilson and Brennan JJ;
(b) if a matter casts adverse imputations upon courts of justice, which if continued, are likely to impair their authority, then that is capable of constituting a contempt because it is necessary to maintain public confidence in the administration of the law: R v Dunbabin; ex parte Williams (1935) 53 CLR 434 at 447 per Dixon J; Gallagher at 243;
(c) words used, or conduct engaged in, in the face of the Court, or in the course of proceedings, which are such as would interfere, or tend to interfere with the course of justice, may constitute a contempt: Parashuram Detaram Shamdasani v King-Emperor [1945] AC 264 at 268; Lewis v Ogden (1984) 153 CLR 682 at 688;
(d) the wilful insult of a Judge in the course of proceedings necessarily interferes, or tends to interfere with the course of justice, however, mere discourtesy falls short of wilfully insulting conduct which is the hallmark of contempt: Lewis at 688-689;
(e) disobedience of Court orders may constitute a contempt because the effective administration of justice is protected by a demonstration that court orders will be enforced. If Court orders could be disobeyed with impunity, individual litigants may suffer, and the whole administration of justice would be brought into disrepute: Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106, 107 per Gibbs CJ, Mason, Wilson and Deane JJ;
(f) all contempt proceedings, whether brought for civil or criminal contempt, as those terms were used historically, are criminal in nature, and all charges must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 529 per Brennan, Deane, Toohey and Gaudron JJ;
(g) the summary power of punishing contempt, that is by the Judge, himself or herself, formulating the charge, citing the contemnor and then hearing and disposing of the charge, should be sparingly used: Lewis at 693. It follows that a more deliberate procedure of bringing proceedings on due notice, which proceedings are properly formulated and particularised, is to be preferred;
(h) a charge of contempt should specify the nature of contempt: Lewis at 693. It follows therefore, that proper particulars of the charge ought be provided. It also follows that a charge of contempt should not be duplicitous.
Historically, contempt proceedings were regarded as being classified into civil contempt and criminal contempt. The classification was described in the judgment of Brennan, Deane, Toohey and Gaudron JJ in Witham at 530 in these terms:
"In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order, or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either where there is a contempt in the face of the court, or there is an interference with the course of justice.
However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or as it is sometimes said, if it is contumacious".
See also: Mudginberri at 106, 108.
However, there is no longer any practical difference to be served by such classifications of contempt proceedings. Nevertheless, an understanding of those classifications assists in understanding the authorities of long standing by which the Court is bound.
It is necessary to keep these principles in mind when dealing with the submissions of the parties.
Principles of Law - Summary Dismissal
As this is an application by David for the summary dismissal of the Charges, it is necessary to keep in mind the principles of law relating to summary dismissal. In these proceedings, counsel for David framed his submissions by reference to the principles ordinarily applicable in civil proceedings. Jeffery did not, by his submissions, contest the applicability of these principles.
A potential question which may arise for consideration in proceedings of this kind is whether, since contempt proceedings are criminal in nature and require proof of all elements beyond reasonable doubt, the rule ordinarily applicable to criminal proceedings, including the grounds for striking out of indictments or criminal charges are the applicable legal principles for an application such as this, rather than the civil ones. However, this question does not arise in the submissions of the parties to this matter. It may be, in the ultimate application to any particular case, that there would be no difference in substance between the criminal principles and the civil principles, however it is sufficient if I note that this question did not arise in these proceedings, and I do not think it appropriate to determine it in the absence of full submissions.
In applying the principles of civil procedure, the test to be applied by a court when considering summary dismissal is clear. These principles are:
(a) every litigant, prima facie, has a right to have all matters of law and fact decided at a hearing. The Court's power to deprive a litigant of that right should not be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed: Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92 per O'Connor J;
(b) before summary intervention can be justified, the case must be a very clear one, in which there is no real question of fact or law to be determined: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91 per Dixon J;
(c) the test to be applied when considering summary termination of an action has been variously expressed as 'so obviously untenable that it cannot possibly succeed', 'manifestly groundless', or 'so manifestly faulty that it does not admit of argument': General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-9;
(d) the exercise of power to summarily terminate proceedings, requires the Court to have a high degree of certainty about the ultimate outcome of the proceedings, and must always be used with caution: Agar v Hyde (2000) 201 CLR 552 at [57] per Gaudron, McHugh, Gummow and Hayne JJ; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24] per French CJ and Gummow J.
Submissions
Counsel for David submitted that, for three reasons, taken together, the Court was obliged to dismiss all of the Charges of contempt on the Amended Statement of Charge. These three reasons were:
(a) the charges did not disclose any offence of contempt. (I understand this reason to be that the statements of charge, even if proved, could not amount to a contempt);
(b) the charges are duplicitous; and
(c) there has been a failure to particularise the charges adequately.
I will consider each of these reasons in turn, and by reference to the groups of Charges.
The second submission, with one exception identified below in respect of Charges 14 and 15, is of no merit. It is true that there are often particulars of more than one statement, or matter of fact, or a circumstance, but this does not constitute any form of duplicity. Each charge is a single Charge and can, subject to any particular remarks later, be met without any confusion or unfairness.
The third submission, except for Charges 17 and 18, is not of any merit, and occupied little time or space in the submissions of Counsel for David. The Charges are generally speaking, adequately and properly particularised.
To the extent that the second and third submissions have any merit, they are dealt with when considering each group of Charges. Otherwise, they are not further specifically dealt with.
Money Order Charges
Counsel for David argued that these charges were not known to law and should be struck out. In short, he was submitting that the pleaded Charges as supported by the particulars were not capable, in law, of amounting to a contempt of Court.
He informed the Court that despite his extensive research, he had not been able to discover any decision "... whereby the non-payment of an order for costs or any other judgment would, per se, lead to an order for contempt".
He submitted that the making of an order for the payment of money, such as those which were made by the District Court in this case, which would ordinarily result in the entry of a money judgment by a court, created nothing more than a right to enforce that order or judgment for the payment of monies by one party against another. As part of this submission, he noted that the relevant legislation provided a variety of remedies for the enforcement of a judgment debt, such as by a garnishee order, or else by registration of the judgment against land by way of an appropriate writ.
He submitted, perhaps overdramatically, that as debtors' prisons had been abolished, and that the effect of the orders sought by Jeffery was to reinstate the regime of committing judgment debtors to prison for a failure to pay a debt, contempt could not be established.
In summary, the effect of these submissions was that a person who disobeyed a court order, which required payment of money, and which could be enforced in a variety of ways other than by contempt proceedings, could not be guilty of a charge of contempt.
It would also be necessary for a court to be satisfied that the orders adverted to in the particulars of the Charges, the disobedience to which constituted the alleged contempt, were apparently within power. A number of David's submissions suggested that this may be an issue. After all, if the orders were invalid because they were beyond power, failure to comply with them could not amount to a contempt.
It is correct that, certainly in the United Kingdom in the period between 1831 and 1869, the Parliament, through the passage of the Bankruptcy Act 1869 (UK) and the Debtors Act 1869 (UK), legislatively abolished the imprisonment of debtors for indefinite periods. Section 4 of the Debtors Act provided that "... no person shall ... be arrested or imprisoned for making default in payment of a sum of money".
However, this prohibition was not absolute. Section 5 of the Debtors Act stated that a court could commit a debtor to prison in respect of a sum of money ordered by a court to be paid, providing that a court was satisfied:
"... that the person making default either has or has had since the date of the order or judgment, the means to pay the sum in respect of which he had made default, and has refused or neglected, or refuses or neglects, to pay the same."
Although the English jurisprudence on the application of the Debtors Act did not always speak with one voice, ultimately it seems clear that a court could commit a person to prison for contempt for failure to pay a costs order. Three cases are of assistance.
In 1888, the Court of Appeal held in Bates v Bates (1888) 14 P.D. 17, that failure to lodge security for costs following an order of the Court in accordance with the usual practice in divorce cases, could amount to a proper basis for the imprisonment of the respondent because what happened was a contempt of Court.
In 1902, Vaughan Williams LJ (with whom Romer and Stirling LJJ) agreed, said in In Re Edgecombe, Ex Parte Edgecombe [1902] 2 KB 403, when speaking of the effect of the Debtors Act that:
"It is obvious that s 5 is just as much an exception from the general prohibition of imprisonment for debt in s 4. ... it is a section which deals with the power of the Court to commit a debtor to prison for non-payment of a judgment debt; ... it is perfectly plain that [the order] can only be made when there is a contumacious debtor who has the means, or has had the means, to pay the debt, and his conduct is in the nature of contempt. This imprisonment ... is a punishment for the contempt and the suffering of that imprisonment in no way discharges the debt."
In 1921, in Leavis v Leavis [1921] P 299, Hill J dismissed an application for a stay on the issue of a writ of attachment issued for non-compliance with an order to give security for legal costs and alimony. In so doing, he held that non-compliance with such an order could constitute a contempt of Court.
It can be accepted that as a matter of past history, the institutions known as debtors' prisons have ceased to exist and, today, courts would regard the notion of imprisonment for mere non-payment of a civil debt as outdated. However, it has been a matter of long history in New South Wales, that contemnors alleged to be guilty of "contempt in civil process" can be detained in prison.
In 1834, the Supreme Court of New South Wales, Forbes CJ, Dowling and Burton JJ, made a Rule of Court about the confines and limits of the public jail which then existed in Sydney. The relevant part read:
"Whereas by reason of the confined limits of the public jail prison in Sydney, and the crowded state of the apartments assigned for the use and custody of persons confined therein, it is expedient to enlarge the limits of the said prison, by appointing fit and suitable places in the vicinity thereof to be within the rules of the same. It is therefore ordered by the Court, that from and after the first day of March, in this present year, 1834, the rules of the prison in Sydney shall be comprised within the bounds following ... And it is further ordered, that all prisoners who are or shall be committed to the Sydney prison, either upon mesne process, or in execution upon any action or suit, or for contempt in civil process, shall be actually detained within the said prison, or the rules thereof, as hereinbefore limited, and defined, until they shall be from thence discharged by due course of law." (Emphasis added)
See: Imprisonment for Debt, Rules [1834] NSW Sup C 16.
"Rules of the prison" was an English concept inherited from the management of the prisons of London which described an area surrounding the prisons in which prisoners could be accommodated, but yet be regarded as being imprisoned.
As the Rule of Court shows, there appears to have been no reason in the minds of the Judges of the Supreme Court, that suggested that committal to prison was not available in cases of what was then known as civil contempt. The cause for the committal to prison was the contempt of court, not the nature of the court order which was not obeyed.
There have been no cases that I have found directly on this point in issue in NSW.
However, in the Federal sphere, on the hearing of an appeal to it, the Full Court of the Federal Court of Australia in Siminton v Australian Prudential Regulation Authority [2008] FCAFC 89, held that a finding of contempt of court, which consisted of a deliberate failure to pay a significant monetary fine of $50,000, was a correct finding. The primary Judge had sentenced the contemnor to a term of imprisonment. The Full Court set aside this order for reasons which dealt with whether or not the conduct was wilful or contumelious. Of interest, the Full Court did not suggest, nor did it conclude, that a term of imprisonment was not available for a contempt of court.
In Victoria, it has been held that a writ of attachment could issue for the failure of a person to pay legal costs ordered against them: Ingram v Ingram [1927] VLR 335. In this case, Cussen J, after reviewing the history of both the common law and the statute law, said at 341:
"It follows that ... with regard to common-law orders ... , there is nothing in Victorian legislation abolishing the right or power to issue writs of attachment as a process for execution, and not only as a process for contempt."
However, His Honour went on to question whether the state of the law of Victoria was socially appropriate, but in so questioning, entirely accepted that wilful default of a money order could result in imprisonment. At 342, he said:
"It seems to me that the present state of Victorian law is out of harmony with the general view that there should not be imprisonment for defaults in payment of money unless there is something like wilful default."
This short review of some of the authorities in Australia suggests, contrary to the submissions of counsel for David, that there is no bar to a finding of contempt where the order of the Court which is flouted is an order for the payment of money. Nor does there seem to be any bar on the Court ordering, where otherwise appropriate, the contemnor to serve a term of imprisonment.
A similar approach has been adopted in the United States of America, where it has been held that an intentional failure to comply with a court order for the payment of child support, and also a court-imposed fine, could lawfully result in a term of imprisonment being imposed.
In 1998, the Supreme Court of Georgia in Hughes v Department of Human Resources 502 S.E. 2d 233 (1998) upheld as lawful the initial incarceration of a father found in contempt for deliberate failure to pay child support. It then went on to conclude that after two months' of incarceration, a petition for release ought be granted upon the basis that the contemnor did not have the funds or property with which to pay the amount required and therefore purge his contempt.
Presiding Justice Fletcher held that a party, who has failed to pay child support under a court order when he has the ability to pay, may be found guilty of civil or criminal contempt and incarcerated for either. He went on to hold that a trial court, however, may not continue incarceration for a civil contempt when the respondent lacks the ability to purge himself. The rationale in his Honour's judgment was that
"...because the purpose of civil contempt is to provide a remedy, and to obtain compliance with the trial court's orders, the justification for imprisonment is lost when that compliance is impossible".
All of the other Justices of the Court concurred with the Presiding Justice's judgment.
Although not directly on point, but nevertheless analogous, the Supreme Court of the United States in Bearden v Georgia 461 US 660 (1983) held that an order of a court imposing a term of imprisonment upon an individual for wilful refusal to pay a fine or court costs, was both legitimate and not in breach of the equal protection clause of the 14th Amendment of the US Constitution. Justice Sandra Day O'Connor said:
"This distinction, based on the reasons for non-payment, is of critical importance here. If the probationer has wilfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. ... Similarly, a probationer's failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for the paying of a debt he owes to society for his crimes. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offence. But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available."
See also: Tate v Short 401 US 395 (1971), Williams v Illinois 399 US 235 (1970).
The textbook writers have not identified any bar to the making of the orders sought by Jeffery. On the contrary, it would appear that there is support for a finding of contempt in the circumstances here alleged. The authors of Borrie and Lowe's Law of Contempt (4th Ed, 2010) say at page 6:
"The rationale of both criminal and civil contempt is therefore essentially the same: upholding the effective administration of justice. If a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute".
It is clear from the authorities to which I have earlier referred with respect to the law of contempt, that a wilful disobedience of a court order constitutes a contempt. It does not seem to me to matter whether the court order is for a party to do something such as executing a document, or participating in an identified part of the court process, or whether it is an order that the party pay money. The fact is that, so long as the order is valid, then a wilful disobedience of it may constitute a contempt.
It is entirely possible that in response to the allegation of contempt for failure to comply with an order for the payment of money, the alleged contemnor could demonstrate that they were indigent or impecunious and unable to comply with the Court's order. However, that would be a matter in due course for evidence, and does not of itself mean that a charge of contempt for failing to comply with an order for payment of money, is not an available, or validly constituted, charge.
What is to be drawn from these various references is that, certainly in NSW, courts have as a matter of history committed contemnors found guilty of contempt to prison. As well, where money orders have been made, including fines for criminal offences, if there is a deliberate defiance of those orders, then there is nothing inimical to a committal to prison so that the contempt may be punished, but that committal should not be made or continued if the individual is unable for proper reasons to pay the debt. These references serve to highlight and concentrate attention on the purpose of a contempt finding being made, and an order for imprisonment being imposed, which is to protect the administration of justice by insisting that Court orders be obeyed.
In all of the circumstances, I am satisfied that the wilful disobedience of a money order of a court can constitute a contempt of Court, which in some circumstances may warrant the committal of the contemnor to prison until the contempt is purged, or else adequately punished.
There is a further reason why the submission of counsel for David cannot be upheld. The submission confuses the notion of a finding of contempt, with the punishment which may be imposed upon the contemnor once a finding has been made. These are two entirely separate concepts. As is apparent from the authorities, not all findings of contempt result in the imposition of a term of imprisonment.
Accordingly, even if the submission of counsel for David that debtors' prisons had been abolished, and there was no power in a court to sentence a person to imprisonment for failure to comply with an order for the payment of money were correct, and I have held it is not, this would not lead to the striking out of the contempt charges alleged. At best, it would limit the range of sentencing options open to a Judge once a contempt of Court had been proved.
For this reason alone, I would not uphold the submissions of counsel for David about the validity of the charges of contempt that have been prepared.
For completeness, I note that the submissions were only directed to the money order charges and not to the other groups of charges.
The remaining question raised in the submissions by counsel for David was whether the costs orders relied upon as a foundation for the money order charges, being Charges 1, 2, 3, 4 and 10, were validly made, or alternatively put, whether David has been able to satisfy this Court, that the orders sought are invalid, and there is no argument which is capable of supporting their validity.
Section 98 of the Civil Procedure Act provides both the Supreme Court and the District Court with abundant powers with respect to costs. It is in the following form:
"98 Courts powers as to costs
(1) Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
(2) ...
(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.
(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:
(a) costs up to, or from, a specified stage of the proceedings, or
(b) a specified proportion of the assessed costs, or
(c) a specified gross sum instead of assessed costs, or
(d) such proportion of the assessed costs as does not exceed a specified amount.
..."
It can be observed that s 98(1)(b) grants to a court, full power to determine by whom, to whom and to what extent costs are to be paid. Section 98(4) provides that a court may make an order in a specified gross sum for costs.
In light of the clear and abundant statutory powers in the District Court with respect to costs, I could not be satisfied that the submission that the orders made by McLoughlin DCJ for the payment of costs are so clearly invalid as not to warrant any argument to the contrary. Rather, should I be called upon to determine the question for the purposes of this motion, I would be abundantly satisfied that the District Court had the power to make the orders which it did, and that those orders are clearly valid.
I am of the same opinion with respect to the order made by Rein J in this Court, which is the subject of Charge 10.
Counsel for David also argues in a further submission, that an order for contempt is not open with respect to non-payment of an order for costs or any other monetary order because the Civil Procedure Act provides for the appropriate process to be followed in the event of non-payment of an order, and the steps which can be taken to enforce such an order to the exclusion of all other processes.
An order for costs, particularly if it is made in a gross sum, results in a judgment of the Court, for payment of money.
Section 106 of the Civil Procedure Act, provides that a judgment debt may be enforced in particular ways. It is in the following form:
"106 Judgments for payment of money
(1) A judgment debt may be enforced by means of any one or more of the following:
(a) a writ for the levy of property,
(b) a garnishee order,
(c) in the case of a judgment of the Supreme Court or the District Court, a charging order.
..."
It is a sufficient answer to this submission, at this stage of the proceedings, to note that the terms of s 106(1) of the Civil Procedure Act provides a discretion to the Court with respect to enforcement of a judgment debt, and the terms of the section do not suggest by the words used that it intends to provide a code which limits the steps of enforcement to those provided and thereby prevents a finding of contempt of Court. If that was the intention of the legislature, then express words would be needed.
It is also necessary to note the terms of s 131 of the Civil Procedure Act. It is as follows:
"131. Committal for contempt
Nothing in this Act or the Uniform Rules limits or otherwise affects the power of the court to attach or commit a person for contempt."
This section is to be found in Part 8 of the Civil Procedure Act, which is the Part which contains all of the provisions for the enforcement of judgments and orders. Contrary to the submissions of counsel for David, this section tells against the proposition that the provision of s 106(1) of the Civil Procedure Act, precludes a finding of contempt.
Accordingly, I am not satisfied that counsel for David has made good his arguments that the money order charges are invalid, or that it is not open to a court to proceed to deal with an allegation of contempt where the subject matter is the non-payment of a monetary order.
However, it remains necessary to consider whether the general submission that the charges do not amount to contempt, even if proved.
The charges numbered 1, 2, 3, 4 and 10 are all based upon a failure to pay costs in accordance with orders of the Court. For the reasons I have already set out earlier, I am well satisfied that if the facts, matters and circumstances particularised are proved at a final hearing, then it would be open to a court to find that a contempt of Court has been proved.
In so saying, it seems to me to be implicit in the allegations that David's conduct was deliberate or intentional. As I understand the authorities, it would be necessary for Jeffery to prove that this was so before a contempt of Court could be established. Once that is proved, the evidentiary onus would shift to David to justify the non-payment by, for example, proving that he was indigent at the time compliance with the order was required and has remained so since that time.
Charge 5, which falls into this group, is of a different kind to the charges with which I have just dealt. It requires separate consideration.
According to the particulars set out in the Amended Statement of Charge, the relevant order of the District Court which was made on 16 July 2010, was in these terms:
"I make an order quantifying costs against D B Mahaffy in the same sum as quantified against the company.
I stay that order or conditions.
I order that costs ordered by me on 5/3/2010 in favour of the defendant against David Mahaffy be quantified in the sum of $134,679.46 and I stay execution of that conditional upon:-
D Mahaffy to pay J Mahaffy the sum of $25,000 within 7 days. ..."
It is then alleged in the particulars that David did not pay the sum of $25,000 within 7 days. It is that non-payment which is the basis for the charge of contempt.
A question arises as to whether the order for the payment of the $25,000 was a final order or whether David was entitled to ignore it. The proposition is that since the grant of a stay was conditional upon payment, that if payment was not made, the consequence is that the stay does not operate.
The alternative construction of the order is that the stay was granted and thereby came into effect. The order for the payment of the sum of $25,000 was an absolute one which could not be the subject of an election by David as to whether he would comply with it.
My initial view of the order was that it was one which David did not have to comply with, because it was not a final order. The consequence of non-compliance being that a stay did not come into effect. But, given that this is an application for summary dismissal, the Court has to be satisfied, in the way in which the matter has been put by counsel for David, whether the construction apparently contended for by Jeffery, namely that the stay was in fact granted, and the order for the payment of $25,000 was a final one is "... so untenable that it cannot possibly succeed ...".
Because the interpretation of the order contended for by Jeffery is reasonably open, it follows that I cannot be satisfied to the degree required that the proceedings can be summarily dismissed in respect of this charge.
Equally, if the test is whether the charge of contempt discloses on its face, the offence of contempt, then I would reach the same conclusion. This is because ultimately what will be called for is an assessment of the terms of, and the nature of, the order made by McLoughlin DCJ on 16 July 2010.
I would not uphold David's application with respect to this charge.
Charge 9 alleges contempt of Court for a failure to pay $22,000 within seven days contrary to an order of Giles JA and Sackville AJA. The particulars of this Charge allege:
"(a) On 23 September 2010, before Justice Giles and Justice Sackville ... the plaintiff sought an adjournment of their filed Summons ...
(b) On 23 September 2010, the plaintiff's Summons was adjourned to 8 October, conditional on the Applicant paying to the Respondent $22,000 by 30 September 2010.
..."
It is unnecessary to rehearse in detail the possible interpretation of these orders, as this charge seems to be in the same position as Charge 5. I would reach the same conclusion for the reasons which I have there expressed.
I do not uphold the submission of counsel for David with respect to this Charge.
The remaining charge which is part of the money order group is Charge 16. This Charge alleges David conducted his financial affairs and operated his bank accounts so as to deliberately avoid enforcement of a court order, for the payment of costs. What is involved is an assertion of a deliberate attempt to evade a court order to pay money. Put a different way, it alleges conduct which is inimical to, and in defiance of, a court order for the payment of costs and other monies.
The charge and the particulars, allege conduct which, if established by evidence, are capable of constituting a contempt of Court. I have not been satisfied by the submission of counsel for David that the allegation cannot possibly succeed.
It follows that I do not accept his submissions, and the charge is one which ought go to a hearing.
Subpoena Charge
Counsel for David submitted that Charge 6, namely, a failure to comply with a subpoena to produce documents, is not capable of constituting a contempt of Court.
I am satisfied that a subpoena issued by the Court constitutes an order of the Court. See r 33.1(a) and r 33.2 of the Uniform Civil Procedure Rules. Under r 33.4 of the UCPR, a court may set aside a subpoena upon the application of any person who has a sufficient interest.
As a matter of general principle, since a deliberate failure to comply with the subpoena is a deliberate failure to comply with a court order, any such wilful disobedience is capable of constituting a contempt.
As well, r 33.12 of the UCPR make specific provision for the failure to comply with a subpoena as amounting to a contempt of Court. It says:
"33.12 Failure to comply with subpoena-contempt of court
(1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly.
(2) Despite rule 33.5 (1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.
(3) Sub-rules (1) and (2) are without prejudice to any power of the court under any rules of the court (including any rules of the court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. "
As well as the specific provision of the UCPR, the Court of Appeal has held that a non-production of documents pursuant to a subpoena, can upon establishing necessary facts, including in particular, that the failure to produce documents was not a casual, accidental and unintentional breach of the Court's order, constitute a contempt of Court: Markisic v The Commonwealth of Australia [2007] NSWCA 92; (2001) 69 NSWLR 737 at [61]-[63] per Campbell JA, Handley AJA and Bell J agreeing.
The allegations in Charge 6 are capable of constituting a contempt of Court. The particulars provided are adequate to notify David of the basis of the charges. If the facts and matters particularised are proved, and the necessary inferences are available from those facts to be drawn, then the charge of contempt is capable of being proved. In those circumstances, I cannot be satisfied that the charge should be summarily dismissed. It is plainly arguable.
Therefore, I reject the submission of counsel for David with respect to this charge.
Court Behaviour Charges
Charge 7 deals with an allegation that David has said various things both in writing and verbally about McLoughlin DCJ and the orders which he made against David.
As the review of authorities in [27] above shows, mere discourtesy in words and behaviour to, or about, a Judge is insufficient, without more, to constitute a contempt. However, a baseless attack on the impartiality of a Judge, or words used in the course of proceedings which impair the authority of the Court, or which tend to interfere with the course of justice may constitute a contempt.
The particulars of Charge 7 nominate eleven separate documents, or occasions in Court, when words are used which are, to put the matter neutrally, critical of McLoughlin DCJ. A review of the detailed particulars demonstrates clearly that David was of the view that McLoughlin DCJ was biased against him, and took many opportunities to express that opinion. Merely to say of a judge that they are, or appear to a reasonable bystander to be, biased, providing that such remark is made in temperate or respectful language, and such remarks are relevant and appropriate to the occasion upon which they are made, would be unlikely to constitute a contempt.
However, an examination of the detailed particulars points to facts and matters which , if proved, would demonstrate that the language used was intemperate, and therefore capable of constituting a contempt. The Judge was accused among other things, of "blatant bias", "having a set on me", and "gross corruption and bias". As well, the Judge was accused of tampering with tapes of court proceedings so as not to incriminate himself further. The District Court, of which the Judge was a part, was described as "very corrupt at the moment".
Before a final conclusion is reached on whether statements of the kind quoted in fact amount to contempt of Court, other matters may need to be considered. For example, the context in which the words were written and spoken may be relevant. If the words were spoken, the volume and tone of voice in which they were spoken may be relevant, or the nature of the proceedings, and the relevance of the words spoken to the proceedings and the issue in dispute may be a relevant field of enquiry. These would all be matters for evidence at a final hearing if they were relevant or to be relied upon by any party.
The evidence of these matters may be such as to demonstrate that words which appear to be capable of constituting a contempt, did not do so. On the other hand, these matters may put beyond all reasonable doubt that the words constituted plainly a contempt of Court.
Having regard to all of these possible matters, and to the words which I have highlighted above, I am of the view that this charge of contempt can be established and it would not be appropriate to summarily dismiss it.
I accept that there are other words of David's set out in the particulars to this charge which may or may not amount to contempt. I express no view about these other words. That is because I am well satisfied that if some or all of the words which I have highlighted are proved, then the charge will be made out. The submissions put by counsel for David did not suggest that the Court should embark on striking down various particulars. Nor would it be appropriate so to do.
Charge 8 alleges a contempt of the Court because statements were made to the Court that Gibb DCJ had made "incorrect orders". The particulars provide that, in two affidavits sworn by him, David wrote that Gibb DCJ "... made incorrect orders ...". As well, the particulars note that David wrote in a Notice of Motion that there was "... no justification of cost order given by Judge Gibb".
Making submissions to one Court that a Judge of another Court has made incorrect orders, or else made orders without adequate justification, is, if made for a relevant purpose, and in respect of a pertinent issue, unexceptional.
As these allegations are presently particularised, I am unable to see that, if proved factually, the statements would be capable of constituting a wilful insult, nor can I see that the words would be capable of interfering or tending to interfere with the course of justice. I am accordingly satisfied that the allegation of contempt in this charge is untenable, and could not possibly succeed.
Charge 8 should be summarily dismissed.
The next charge which deals with behaviour in Court is Charge 11. That Charge alleges that David, in the course of a hearing before the Court of Appeal on 23 September 2010, was in contempt of Court by knowingly misleading the Court.
According to the particulars, on that day David instructed lawyers to appear for him with respect to a summons for leave to appeal which had been filed on 17 June 2010. That summons was fixed for hearing on that day.
The particulars assert that the lawyers sought an adjournment to allow them further time to prepare, including obtaining documents and filing and serving further evidence.
Apparently, the hearing of the proceedings was adjourned to 8 October 2010. The particulars then assert that David failed to comply with the orders made by the Court of Appeal about filing and serving further evidence and material.
There is a clear disconnect between the alleged contempt, namely, knowingly misleading the Court, and what is particularised as having occurred. As the principles of contempt to which I have earlier made reference demonstrate, Jeffrey would have to allege and prove that David gave instructions to his lawyers with respect to the reasons for obtaining an adjournment which were knowingly false, and that such conduct on his part led directly to what the lawyers said in Court, and that conduct interfered with, or tended to interfere with, the course of justice.
Alternatively, although this is not charged it is possible that Jeffrey may be able to prove that David's failure to comply with the orders of the Court of Appeal amounted to a contempt. If such an accusation were the charge preferred, then it is possible that pleaded particulars might go some way towards supporting such a charge. But, as I have said, that is not what has been alleged.
This charge, having regard to the particularised basis of it, is simply not capable, in its present form, of constituting a contempt of Court. David is entitled to have it summarily dismissed.
Charge 12 consists of an allegation that David knowingly misled the Court of Appeal in circumstances where, as it is alleged:
"(a) he appeared in person and addressed the Court directly and not through a lawyer;
(b) he informed the Court that the substantive proceedings out of which the summons for leave to appeal arose had, on the previous day, been agreed to be revisited in the District Court of NSW;
(c) he knew that to be untrue because the District Court had done no such thing on the previous day;
(d) the intentional misleading of the Court amounts to a contempt."
It is clear that an intentional misleading of the Court is conduct which may interfere with the course of justice. The effective administration of justice relies upon litigants telling the truth to the Court as to what has happened of relevance to the proceedings, which are then before the Court.
The charge, taken with the particulars, is capable of constituting a contempt of Court. I do not accept David's submissions that the charge ought be summarily dismissed.
Charge 13 involves allegations of words written about White J in the Supreme Court. The charge itself refers to "... making various verbal allegations ...", in addition to the written words. However, the particulars provided did not refer to any verbal statements.
The particulars of the words used include the following, which were said to have been used in a context of making a submission that White J ought not sit to hear the then current proceedings involving David. Of White J, David said:
"(a) "twice verbal altercation with Justice White";
(b) "I have had two runs with Judge White, gave two incorrect decisions. Judge White is biased towards me and my company ... " (sic);
(c) a number of statements to the effect that White J was biased against David;
(d) that in some cases "... extreme bias and corruption being evident";
(e) White J was "... a corrupt Judge"; and
(f) that an investigation into White J "... will show gross bias and corruption ...".
Of itself, in the context of seeking to have a matter not heard by a particular Judge, but heard by another Judge of the Supreme Court, to make a submission in temperate language that a Judge was biased (that is, a submission of what lawyers would call "actual bias"), or gave the appearance of bias (that is, a submission of ostensible or apparent bias), would not without more, constitute a contempt of Court. Of course, there would also need to be a reasonable basis for such a submission to be made.
However, the words particularised with respect to this Charge, are capable of being held to be a contempt. An allegation of "gross bias and corruption" and "illegal conduct" when made about a Judge with respect to his or her conduct in Court, or his or her judgment disposing of proceedings, or else interlocutory matters, are of a different type and quality to those which I have just discussed.
An allegation of corruption in judicial office, if not made on proper grounds, to the proper authority, and in appropriate terms, and for a proper purpose, would be likely to interfere with the administration of justice because it is capable of demeaning the judiciary generally, and also capable of deterring an individual judge from discharging his or her judicial duties in accordance with their judicial oath.
Accordingly, there is a sound basis particularised for this Charge. Whether all of the particulars constitute a contempt will be a matter for the trial Judge. It is sufficient to say that I am not persuaded the Charge ought be summarily dismissed.
However, insofar as the charge includes, in the Amended Statement of Charge, the words "... various verbal allegations before the court and ...", there are no particulars which support these words.
These words ought be removed from the Charge as presently formulated when a Further Amended Statement of Charge is filed.
Proceedings Charges
This group of Charges relate to proceedings which have been commenced and continued, or prosecuted unsuccessfully, by David or his company on his instructions, against Jeffrey.
Jeffrey alleges that some of the proceedings (Charges 14 and 15) were commenced and prosecuted in contravention of Court orders. Charges 17 and 18 relate to proceedings which Jeffrey alleges were vexatious and brought for an ulterior, vindictive purpose, and hence amounted to an abuse of process.
It is convenient to deal with Charges 14 and 15 together, because they are substantially identical, and appear, except for the addition of some words, in particular (a) in Charge 14, and particular (g) in Charge 15, to be replicated.
The particulars allege that as security for a costs order made in the District Court, David mortgaged a property at Narrabri in favour of Jeffrey. Jeffrey alleges that there was a default under the mortgage and, accordingly, he was entitled to sell the property. It is then alleged that by taking two unsuccessful sets of proceedings, and by lodging five separate caveats over the land with the Land Titles Office, that David was acting intentionally to defy a court order by seeking to interrupt the orderly sale of the mortgaged property, or else the settlement of that sale.
As was said in Mudginberri, noted above at [27], disobedience to Court orders with impunity means that individual litigants may suffer, and the whole administration of justice would be brought into disrepute.
I see nothing in any of the authorities which would cause a court, when approaching any allegation of contempt, to include only some forms of conduct which may fall within this principle, and exclude other forms of conduct. What needs to be considered is the nature and content of the Court orders, whether there has been disobedience to them, or defiance of them, and whether the nature of, and the consequence of that disobedience or defiance, has been of a sufficient kind or seriousness to amount to a contempt.
Although the particulars in respect of these Charges trace an unconventional path to a possible finding of contempt, I am not prepared to find that that path is unable to be followed successfully, nor would I be prepared to find that the allegation of contempt is plainly untenable.
However, it is clear that the two Charges relate to the same conduct, and arise out of the same facts, matters and circumstances. It seems that Jeffrey seeks to have two Charges of contempt found when only one is available.
Accordingly, in any Further Amended Statement of Charge, Jeffrey will need to elect which of Charges 14 and 15 he wishes to proceed with. He cannot proceed with both.
Charges 17 and 18 allege the commencement and continuation of proceedings which were an abuse of process. One Charge (17) refers to proceedings commenced and continued in the District Court and the Charge (18) refers to proceedings commenced and continued in the Supreme Court.
There are no particulars of the Charges. Which proceedings the Charges relate to are unknown and unspecified. The "vexatious and vindictive purpose" for which the proceedings were said to have been brought is not identified. Nor is it apparent how the proceedings, which are said to have been an abuse of process, constitute a contempt of Court.
In the absence of any particulars in the Amended Statement of Charge, or some clear evidence and submissions as to how these Charges are constituted and may properly succeed as a matter of legal principle and provable facts, I cannot find that the Charges are even arguable. In their present form, Charges 17 and 18 ought be summarily dismissed, and struck out of the Amended Statement of Charge.
Summary
I have found that some Charges should be summarily dismissed and others not. To give effect to these findings, it will be necessary for Jeffrey to file a Further Amended Statement of Charge which reflects this judgment.
I have found that Charges 8, 11, 17 and 18 ought be summarily dismissed. They will need to be removed entirely from any Further Amended Statement of Charge. Charges 14 and 15 are duplicates. The Further Amended Statement of Charge, when filed, should only include one of these two charges. It will be a matter for Jeffrey to elect which one of the two charges he wishes to proceed upon.
Insofar as Jeffrey wishes to proceed on Charge 13, it will be necessary for him to delete the words to which I have referred in [138] above, as the particulars of the Charge make no such allegations.
Clearly, when the Further Amended Statement of Charge is filed, the Charges will need to be renumbered to take account of the amendments and deletions which I have ordered to be made.
With respect to the balance of the Charges, I have not been satisfied that they ought be summarily dismissed and, accordingly, it will be appropriate to dismiss David's Notice of Motion seeking such summary dismissal.
Costs
It is necessary to consider the question of costs.
As the Civil Procedure Act makes clear, costs are in the discretion of the Court. Ordinarily, unless otherwise ordered, costs should follow the event: see r 42.1 of the UCPR.
However, in these proceedings both parties have had a measure of success. Although there was a need to adjourn the proceedings on a number of occasions, and for various documents to be amended, I am not satisfied that this has occasioned sufficient additional expense and inconvenience as would warrant a separate order for costs.
In all of the circumstances, I consider that a fair and appropriate order for the costs of these proceedings is to order that each party pay their own costs.
Case Management
It will also be appropriate to make various case management orders to ensure that if the matter is to proceed, it does so in the most cost and time effective way.
Resolution
The nature of charges of contempt, arising as they do from various pieces of litigation in both the District Court and the Supreme Court, indicate, at least partially, the extent of the litigation between Jeffrey and David. It is impossible not to observe the enmity and distrust which exists between them.
But as Pharaoh Rameses the Great of Egypt, and King Hattusilli III of the Hittite Kingdom, demonstrated to the world in 1259 BC, notwithstanding a war which had taken place over the preceding 200 years for mastery of the lands of the eastern Mediterranean, a lasting peace treaty is always to be preferred. Although long-standing and deep enemies, the Pharoah and the King were able to conclude what is thought to be the world's first peace treaty because the interest of both sides in making peace overwhelmed their interest in maintaining hostilities.
And this they were able to do, notwithstanding the entirely conflicting versions of the outcome of the Battle of Kadesh in 1274 BC. Each claimed to have been victorious in this battle. Each claimed a glorious victory and the vanquishment of their enemy. But the reality was different, neither side prevailed, their casualties were heavy and the time had come to move on, but in a negotiated state of peace.
History suggests that they concluded the peace treaty without meeting in person, but through emissaries, and with both holding a wish for peace. No face was lost and no reputation was damaged in the peace process.
Both countries benefited and when threatened by a third party, agreed to come to each other's aid. Peace lasted for a period greater than the lifetime of Rameses the Great and King Hattusilli III, and the lifetime of their children.
It is now time for David and Jeffrey to attempt to emulate the actions of Rameses the Great and King Hattusilli III, and to commence negotiations to resolve all of their differences. Perhaps, even in the first instance, by using third parties of goodwill as their emissaries.
If they are unwilling to, or else unsuccessful in, resolving all of their differences, when the matter returns to Court it may be necessary for the Court to consider whether in order to further the overriding purpose of the Civil Procedure Act, or else for the proper administration of justice, it would be appropriate to order the parties to engage in a mediation. But this will be a matter for a later occasion, after submissions from the parties have been heard.
Orders
I make the following orders:
(1) Charges 8, 11, 17 and 18 set out in the Amended Statement of Charge filed on 9 October 2011 be, and hereby are, summarily dismissed.
(2) Jeffrey Mahaffy is to file and serve a Further Amended Statement of Charge which accords with this judgment on or before 4pm 24 April 2013.
(3) The Amended Notice of Motion filed on 2 August 2011 by David Mahaffy, is otherwise dismissed.
(4) Each party is to pay his own costs of the Notice of Motion, including any reserved costs.
(5) Jeffrey Mahaffy is to file and serve all affidavits of any witnesses, including himself, upon which he proposes to rely in support of his claims for contempt on or before 4pm 12 July 2013.
(6) Jeffrey Mahaffy is to file and serve a list of documents which he proposes to tender as part of his case in chief, on or before 4pm 12 July 2013.
(7) David Mahaffy is to file and serve all affidavits of any witness, including himself, upon which he proposes to rely in defence of the contempt allegations, on or before 4pm 11 October 2013.
(8) David Mahaffy is to file and serve a list of all documents which he proposes to tender as part of his defence of the contempt proceedings on or before 4pm 11 October 2013.
(9) Stand proceedings over for directions before the Registrar of the Common Law Division at 9am on 18 October 2013.
(10) Direct that if either party has not complied with any order of the Court, or else will not be able to comply with any order of the Court, that party is to forthwith restore the matter to the List of the Registrar of the Common Law Division, and is to provide at that time an affidavit which fully sets out all of the facts, matters and circumstances upon which he relies to explain and excuse his non-compliance with the Court's order, or else his prospective non-compliance.
(11) General liberty to restore on 24 hours notice.
**********
Decision last updated: 28 March 2013
11
2
5