Mane Market P/L v Temple & STHRN Hotels P/L No. Scgrg-96-2017 Judgment No. S271

[1999] SASC 271

MANE MARKET PTY LTD D & OTHERS v TEMPLE AND SOUTHERN HOTELS PTY LTD

[1999] SASC 271

Civil

1 WICKS J                  The application before me arises out of an action wherein the plaintiffs claim damages for alleged breaches of duty by the defendant Russell James Temple, both as a director and as an employee of the plaintiffs.  In order to place the application under consideration in context, I propose to set out briefly the relevant history of the matter.
2 On 31 January 1997, a master of this Court granted a mareva injunction restraining the defendant Temple from dealing in any way with his assets. This injunction was extended from time to time and remained in force until 20 February 1997 when a fresh mareva injunction was granted.  Subsequently, in response to certain alleged conduct on the part of the defendant Temple, two applications were brought before a judge of this Court for the issue of a Registrar’s Summons against the defendant Temple for contempt of court.  The circumstances giving rise to those applications were as follows.
3 The assets of the defendant Temple included an interest in the Temple Weeks Trust.  It is alleged by the plaintiffs that on 20 April 1998, the defendant, by deed, assigned his interest in the trust to Asset Management (SA) Pty Ltd for a consideration of $50000.  The plaintiffs claimed that this action was in breach of the mareva injunction and thus, a contempt of court.  Application was made to the court on 1 June 1998 by the plaintiffs seeking the issue of a Registrar’s Summons for contempt under r93 of the Supreme Court Rules.
4 The plaintiffs allege that on 1 February 1997, the defendant Temple, or someone acting by or at his direction, withdrew $7000 in cash from a Totalisator Agency Board telephone betting account in the name of the defendant.  On 8 July 1998, the plaintiffs made application to the court claiming that such withdrawal constituted a breach of the mareva injunction granted on 31 January 1997 and that a Registrar’s Summons issue for contempt of court in relation to the breach.
5 On 28 July 1997, in order to obtain further evidence of the second alleged contempt referred to above, the plaintiffs issued a subpoena against Southern Hotels Pty Ltd ("Southern Hotels") to produce to the court on 31 July 1997 the original of the telephone betting slip.  It is alleged that the subpoena was not answered.  On 8 July 1998, the plaintiffs made application for the issue of a Registrar’s Summons for contempt addressed to Southern Hotels in respect of its failure to answer the subpoena.
6 The learned Judge heard all three applications together on 29 July 1998 and delivered judgment on 27 November 1998.  His Honour found a prime facie case in relation to each allegation of contempt and relevantly made the following order or direction:

1. That the defendant [Temple] has by assigning in the deed made on 20 April 1998 his interest in The Temple Weeks Trust, acted in breach of the injunction ordered on 20 February 1997.

1. That a Registrar’s summons for contempt issue in respect of the breach identified in paragraph 1 of this order.

1. That a Registrar’s summons for contempt issue in respect of the withdrawal by the defendant of the sum of $7,000 from the Totalisator Agency Board at its agency in the Grosvenor Hotel, Victor Harbor.

1. That a Registrar’s summons for contempt issue in respect of the destruction by Southern Hotels Pty Ltd of the telephone betting withdrawal slip for the withdrawal of the sum of $7,000, the subject of the subpoena issued out of this court on 28 July 1997."

7 In my reasons I use the expressions "orders" and "directions" in describing what the learned Judge did on 27 November 1998 without indicating which - as the character of those orders or directions, and whether they can be made the subject of an appeal to the Full Court, is a matter that I have been asked to decide.  I must emphasise at the outset, however, that it is no part of my task in any way to review that order or direction.
8 On 14 December 1998 the defendant Temple and Southern Hotels purported to appeal to the Full Court against the orders or directions made by the learned Judge on 27 November 1998 and referred to above.  A Notice of Appeal was filed on that day.  Up to the date of the hearing of this application, no steps were taken by the defendant Temple or by Southern Hotels towards the setting down of the appeals for hearing.
9 On 17 March 1999, the plaintiffs made application for an order that the appeals instituted on 14 December 1998 against the orders or directions of the learned Judge made or given on 27 November 1998 be dismissed for want of prosecution.  The application was brought pursuant to r95.11(2)(b) of the Supreme Court Rules.  So far as material, r95.11(1) and r95.11(2) are as follows:
"(1)  The appellant ... having the carriage of the proceedings to be heard before the Full Court shall set the same down for hearing:

(a)     in the case of an appeal within two months of the appeal being instituted;
(b)     ...

(2)  In the event of an appeal ... not being set down within the time prescribed by par(1), any other party to the appeal ... may thereupon apply to the Court for:

(a)     leave to set the proceeding down for hearing, or
(b)     an order dismissing the appeal for want of prosecution."

10 On 13 April 1999, pursuant to leave granted by me on 7 April, the application dated 17 March 1999 was amended to seek an order by way of additional relief that the appeals instituted on 14 December 1998 be dismissed as incompetent.  In support of this amendment, the plaintiffs relied upon r95.08 which provides as follows:
"95.08(1)  A respondent may make an application at any time to the Full Court or a Judge for an order dismissing an appeal as incompetent. 

(2)  Upon the hearing of the application, the burden of establishing the competency of the appeal is on the appellant."

11 Where it is alleged that a contempt has been committed, the court is empowered to direct the Registrar to issue a summons and have it served on the person alleged to be in contempt.  Rule 93.03 of the Supreme Court Rules provides as follows:
"93.03  Where it is alleged that a contempt has been committed the Court may, in lieu of ordering the immediate arrest of the person, direct the Registrar to issue a summons in form 28 and cause it to be served upon the person alleged to be in contempt, the said summons to state the nature of the alleged contempt with sufficient particularity for the person charged to make his defence to the charge and to state a specific time and place for him to attend."

12 In this matter, the learned Judge has directed the Registrar to issue a summons under r93.03.  The question arises as to the character of the direction to the Registrar.  Does it have the character of an "order"?  If so, can it be the subject matter of an appeal to the Full Court?  Alternatively, if the direction is not an order, is it open to appeal or is it in the nature of an administrative direction or incidental ruling and thus, outside the scope of the appeal process altogether? 
13 A judgment or order has been held to be a judicial act which decides the question, or one of the questions, which is raised for decision in particular proceedings then before the court or judge: Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at p127 per King CJ. The learned Chief Justice observed:
"The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action.  Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions.  Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing.  Such incidental rulings are not judgments or orders and are therefore not appealable even by leave."

14 Into what category should a direction to the Registrar under r93.03 fall?  The process of determining whether a Registrar’s Summons should issue is essentially a screening function somewhat similar to that exercised by a magistrate in committal proceedings in respect of a criminal offence: Mane Market Pty Ltd & Ors v Temple Debelle J Jt No S6986 dated 27 November 1998, unreported.  It seems to me that the rule in question was carefully framed to avoid the use of the expressions "judgment" and "order".  Contempt proceedings cannot be commenced in this Court as of right but must undergo a process whereby a judge is satisfied that there is in effect a case to answer.  If a judge so finds, the matter should proceed with the laying of the particulars of charge so that the matter can proceed as soon as possible to a hearing.  One only has to look at the grounds of appeal in the Notice of Appeal which was filed on 14 December 1998 to see how unsatisfactory it would be if the exercise by the learned Judge of his screening function in the matter were to become the subject of full blown appeal to the Full Court.  Irrespective of the result, the matter would no doubt not end there in that one could confidently expect that there would be a further appeal on the conclusion of the hearing of the contempt application on its merits by a party dissatisfied with the result in the court below. 
15 Whilst I have not been able to find any authority directly on point, I am satisfied that the direction of the learned Judge under r93.03 is an administrative direction and falls into the same category as "incidental rulings" referred to by King CJ in Legal Practitioners Complaints Committee v A Practitioner (supra).
16 It is true that when directing the matter to the Registrar, the learned Judge used the expression "order".  However, I do not believe that the use of that expression in the context of r93.03 can affect the position.  The terms of the rule itself are what need to be considered.
17 The application as to competency of the appeal may be made at any time to the Full Court or a judge.  I am however concerned whether I should exercise the power or whether that should be left to the Full Court.  It appears that a single judge should not dismiss an appeal as incompetent unless it is so defective in form and substance that it must be struck out as either failing to invoke the jurisdiction of the Full Court to pass judgment upon it or being clearly an abuse of process: Le Poidevin Industries Pty Ltd v Midnorth Animal Board, Olsson J, Judgment No S3122 dated 13 November 1991, unreported. 
18 I consider that the appeals in this matter are incompetent on the ground I have indicated.  On reflection I have come to the conclusion that the question of competency in this case is a question which should be left for the Full Court itself to determine.  I therefore dismiss the application as far as it seeks a dismissal of the appeals on the ground of incompetency.
19 If I am wrong in holding that the learned Judge made a "direction" and not an "order" on 27 November 1998 in relation to the application under r93.03, I am of the view that the order made was an interlocutory and not a final order: TRAMS Pty Ltd v The Grand Hotel Pty Ltd (1993) 170 LSJS 312 and also to Hall v The Nominal Defendant (1966) 117 CLR 423. However, I do not think I should express any concluded view on this aspect of the matter. If the order is interlocutory, any difficulty with the order in that regard could be overcome by obtaining leave to appeal either from the learned Judge or from the Full court itself. Until the question of leave is resolved I do not think I should embark on a consideration of that ground.
20 I will hear the parties as to what I should do with the application to dismiss the appeals for want of prosecution.
21 I will hear the parties as to costs.