McDonnell v Novello

[2006] NSWSC 1186

CITATION:	McDonnell v Novello [2006] NSWSC 1186
HEARING DATE(S):	08/11/06
JUDGMENT DATE :	14 November 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Notice of motion for contempt dismissed with costs
CATCHWORDS:	PROCEDURE - contempt of court - orders made in absence of party - not shown that orders served on or otherwise brought to party's attention before events said to constitute contempt - statement of charge not framed with particularity - various procedural defects
LEGISLATION CITED:	Supreme Court Rules 1970, Part 55 rules 7, 9 Uniform Civil Procedure Rules 2005, rules 1.7, 10.21, 40.7, Schedule 2
CASES CITED:	Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 Harmsworth v Harmsworth [1987] 1 WLR 1676 Pearson v The Arcadia Stores, Guyra Ltd (No 2) (1935) 53 CLR 587
PARTIES:	Philip Ray McDonnell - First Plaintiff Jennifer Mary McDonnell - Second Plaintiff Ivor Novello - Defendant
FILE NUMBER(S):	SC 6159/05
COUNSEL:	Mr P.P. O'Loughlin - Plaintiffs Ms J.E. Richards - Defendant
SOLICITORS:	Malcolm McDonald & Co - Plaintiffs Antunes - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 14 NOVEMBER 2006

6159/05 PHILIP RAY McDONNELL & ANOR v IVOR NOVELLO

JUDGMENT

1 In these proceedings, the plaintiffs claim an entitlement to an equitable interest in the defendant’s property at Londonderry by reason of expenditure made by the plaintiffs in effecting or causing to be effected improvements to the property. The summons was filed on 6 December 2005. There is a family relationship between the plaintiffs and the defendant.

2 On 8 November 2006, I heard an application by the defendant, by notice of motion filed on 29 September 2006, for:

· “Declarations that each of the Plaintiffs is in contempt of orders 1 and 2 of the orders made by Gzell J on 25 September 2006.”

· “Orders that each of the Plaintiffs be dealt with by the Court for contempt.”

3 The orders made by Gzell J on 25 September 2006 are as follows:

“1. Philip Ray McDonnell and Jennifer Mary McDonnell or any person, agent, or corporation acting under their authority or on their behalf be restrained from entering the property situated at 286 Nutt Rd, Londonderry in the state of New South Wales (the Property) for the purpose of making any improvements, renovations or additions to the buildings and improvements situated on the Property, until further order.
2. Philip Ray McDonnell and Jennifer Mary McDonnell or any person, agent, or corporation acting under their authority or on their behalf be restrained from undertaking any improvements, renovations or additions to the buildings and improvements situated on the land known as 286 Nutt Rd, Londonderry in the state of New South Wales, until further order.
3. Order that the plaintiffs pay the defendant’s costs of this motion.”

4 Application for those three orders was made by the defendant’s notice of motion filed in the registry on 18 September 2006 together with a supporting affidavit of the defendant’s solicitor. Upon being filed, the notice of motion was given a return date of 26 October 2006. The notice of motion was duly served on the plaintiffs’ solicitors. The defendant took the view that matters could not be left to await the allocated return date of 26 October 2006. The defendant’s solicitor therefore wrote to the plaintiffs’ solicitor seeking undertakings from the plaintiffs in terms of the orders in the notice of motion on the footing that such undertakings should continue until the allocated return date. The letter indicated that if the undertakings were not given by a specified time, the defendant would approach the court. These undertakings were not forthcoming and the defendant approached the Duty Judge (Gzell J) ex parte on 25 September 2006. There was no notice to the plaintiffs of the precise date and time at which the approach was to be made. When the matter came before Gzell J, he directed that the plaintiffs be called outside court. There was no attendance by or appearance for them.

5 The transcript of what then transpired is brief and may be quoted in full:

“TZANNES: It’s an application for urgent injunctions, restraining orders. You will find the application in the court file, which was filed on 18 September 2006, which has been served with a return date of 27 October 2006. I understand there is also an affidavit in support sworn 18 September 2006 --
HIS HONOUR: Has this matter been before the Registrar?
TZANNES: No, it hasn’t. Your Honour will see they are applications for restraining orders against the plaintiffs in the substantive application, a declaration of constructive trust against my clients’ property in relation to alleged works done on the property, incomplete works, with the primary history being what is the value of the works and whether they did value the land.
HIS HONOUR: Has the notice of motion been served on the other side?
TZANNES: It has.
HIS HONOUR: And is that sworn to in this affidavit?
TZANNES: Not in this affidavit. The affidavit of 25 September by Simmone Corbett is here and I seek leave to file that (handed up).
HIS HONOUR: I give leave to file in court an affidavit of Simmone Corbett sworn on 25 September 2006. Are the plaintiffs in occupation of the premises?
TZANNES: In a way they are. There was the residence being operated at the premises. The residence has been vacated. They are attending every day, at least the male plaintiff is.
HIS HONOUR: I make orders in terms of paragraphs 1, 2 and 4 of the notice of motion.”

6 The situation can thus be seen to be one in which interlocutory restraining orders sought by a notice of motion which, as served, contained a return date a little over a month away were made (“until further order” and without the proffering of any undertaking as to damages) against parties who were absent and had been given no notice of the hearing at which the orders were made. The costs order made against the plaintiffs in these circumstances became the subject of an application for discharge heard by me at the same time as the contempt motion. By consent, it was ordered that that costs order be discharged and that the costs in question be reserved.

7 I return to the notice of motion by which the defendant applies for orders regarding alleged contempt of court by the plaintiffs. The notice of motion was, as I have said, filed on 29 September 2006. Leave to file the notice of motion and supporting affidavit was granted by Gzell J who was again sitting as Duty Judge on that day. His Honour also made orders as follows:

1. “I abridge the time for service of the notice of motion, the affidavit and these orders to 5 pm on Friday 29 September 2006”.

3. “I order that service upon the plaintiffs may be effected by facsimile transmission addressed to Malcolm McDonald & Co, the solicitors for the plaintiff, at number 4721 1031”.

3. “I stand the notice of motion over before the Duty Judge at 10am on Tuesday 3 October 2006”.

8 When the notice of motion came before the Duty Judge on 3 October 2006 it was, by consent, further stood over.

9 The defendant filed a statement of charge at a later time. It is dated 5 October 2006 and was filed in court on that day when the proceedings again came before Gzell J. On that occasion, his Honour also made directions on matters of no relevance to the matter with which I am now concerned.

10 The charge of contempt, as stated in the statement of charge, is as follows:

“1. On 25 September 2006, Orders were made by his Honour Mr Justice Gzell in this Honourable Court.
2. Those Orders were notified to the Plaintiffs’ solicitors Malcolm McDonald & Co by facsimile of 25 September 2006 at 12.56pm.
3. From 25 September 2006 to 27 September 2006, the Plaintiffs by their servants and agents in breach of the Orders of his Honour Mr Justice Gzell of 25 September 2006, entered into the Defendant’s property for the purpose of undertaking work and did undertake that work.
PARTICULARS
Impeccable constructions [sic] undertook cladding work on the Plaintiffs [sic] house on the Defendant’s property.
4. In the knowledge of the Court’s orders, the Plaintiffs committed a breach of such Orders.
5. The Plaintiffs are in continuous Contempt of the Court’s orders.”

11 The plaintiffs contend that significant defects attend the defendant’s attempt to bring the charge of contempt before the court and that the defects are such that the attempt is doomed to fail, with the result that the notice of motion should be dismissed with costs. Having taken that stance, the plaintiffs did not seek to lead any evidence upon the application and were content to refer to the evidence tendered by the defendant, together with the court record and transcript.

12 The plaintiffs say, in the first place, that the defendant did not comply with Part 55 rule 7 of the Supreme Court Rules 1970 (which, by virtue of rule 1.7 and Schedule 2 of the Uniform Civil Procedure Rules 2005, prevails notwithstanding any inconsistency with the Uniform Civil Procedure Rules). Part 55 rule 7 is as follows:

“ Statement of charge

A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons.”

13 The reference here to “the notice of motion or summons” is a reference to a notice of motion or summons under Part 55 rule 6 – being, in this case, the defendant’s notice of motion filed on 29 September 2006. The “subscribed to” possibility contemplated by Part 55 rule 7 refers, clearly enough, to a case where the statement of charge – that is, a statement identifying with precision the contempt allegation made – is contained in the same document or paper as the summons or notice of motion. The “filed with” possibility recognises that the initiating summons or notice of motion must be filed and contemplates that the statement of charge will be in a separate document that accompanies it. In the present case, the statement of charge was not contained in the same document or paper as the notice of motion. Nor was the statement of charge included in a single filing encompassing two documents, one being the notice of motion and the other the statement of charge. There was a separate and distinct filing of the statement of charge some six days after the filing of the notice of motion.

14 The second objection taken by the plaintiffs is that there was no compliance with Part 55 rule 9 of the Supreme Court Rules:

“ Service

The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.”

15 The requirement here is that all the documents mentioned be “served personally”. Since the repeal of Part 9 rule 3(2) of the Supreme Court Rules, those rules do not define or explain the concept of serving “personally” but I am satisfied that, in the present context, the concept should be understood in the way that now emerges from the Uniform Civil Procedure Rules and, in particular, rule 10.21 (which probably reflects, in any event, the general law concept of personal service):

“ How personal service effected generally

(cf SCR Part 9, rule 3; DCR Part 8, rules 3 and 14; LCR Part 7, rules 3 and 14)

(1) Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document.

(2) If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person.

(3) Service in accordance with subrule (2) is taken to constitute personal service.”

16 Evidence led on behalf of the defendant shows that, on 29 September 2006, the defendant’s solicitor sent to the plaintiffs’ solicitor by facsimile a copy of the notice of motion filed on that day and a copy of the supporting affidavit. The evidence also shows that the defendant’s solicitor sent a copy of the statement of charge to the plaintiffs’ solicitor under cover of a letter dated 27 October 2006. The relevant affidavit does not say how the letter and enclosure were sent but I infer from the fact that the letter is addressed to the plaintiffs’ solicitor at a post office box that it was sent by post.

17 It is clear that neither the notice of motion nor the statement of charge was “served personally” on the plaintiffs. In relation to the notice of motion, however, it may be that Order 2 made on 29 September 2006 dispensed with the “served personally” requirement arising under the rules. It is not shown that that order referred in any explicit way to the requirement under Part 55 rule 9 or to the court’s power to dispense with a requirement of the rules in a particular case. But, as I say, that may well have been the effect of the order. Even so, neither that nor any other order had any similar effect in relation to the statement of charge, with the result that the “served personally” requirement applied to it.

18 The third matter raised by the plaintiffs is non-compliance with rule 40.7 of the Uniform Civil Procedure Rules, the relevant provisions being, in the plaintiffs’ view, subrules (1), (3), (4) and (5):

“ Service of copy of judgment before committal or sequestration
(cf SCR Part 42, rule 8)

(1) A judgment is not enforceable by committal or sequestration unless:
(a) a sealed copy of the judgment is served personally on the person bound by the judgment, and
(b) if the judgment requires the person to do an act within a specified time, the sealed copy is so served within that time or, if that time is extended or abridged, within that time as extended or abridged.

…

(3) The sealed copy of the judgment must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property:
(a) where the judgment requires the person to do an act within a specified time, if the person fails to do the act within that time, or
(b) where the judgment requires the person to do an act forthwith or forthwith on a specified event, if the person fails to do the act as so required, or
(c) where the judgment requires the person to abstain from doing an act, if the person disobeys the judgment.

(4) If a person liable to committal or sequestration by way of enforcement of a judgment has notice of the judgment:
(a) by being present when the judgment is directed to be entered, or
(b) by being notified of the terms of the judgment, whether by telephone, telegram or otherwise,

the judgment may be enforced against that person by committal or sequestration without service having been effected in accordance with this rule.

(5) The court may dispense with service under this rule.”

19 The defendant does not, in terms, seek attachment or sequestration. But attachment, in relation to the plaintiffs, would be comprehended by the defendant’s application for orders that the plaintiffs “be dealt with by the Court for contempt”. This is because attachment is a means of executing an order in personam consequent upon a finding of contempt consisting of non-compliance with the order: see generally Pearson v The Arcadia Stores, Guyra Ltd (No 2) (1935) 53 CLR 587. I am therefore satisfied that rule 40.7 is relevant to the present context.

20 Under rule 40.7(1), there was a requirement that the restraining orders made by Gzell J on 25 September 2006 be “served personally” on the plaintiffs, subject to the displacement of that requirement in the circumstances defined in rule 40.7(4).

21 The defendant does not contend that he satisfied the “served personally” requirement of rule 40.7(1) in relation to the orders. It is submitted on his behalf, however, that the requirement of personal service is displaced by rule 40.7(4) because the plaintiffs had notice of the orders “by being notified of the terms of the judgment, whether by telephone, telegram or otherwise”.

22 The defendant says, in that connection, that, although neither of the plaintiffs was in court when the orders were made on 25 September 2006, both of them received notice of the terms of those orders by reason of matters deposed to in the plaintiffs’ solicitor’s affidavit. The solicitor deposes that, on 26 September 2006, he became aware of a letter from the defendant’s solicitors received at his office late on 25 September 2006 which set out the terms of the orders made on that day. Perusal of the letter shows that, apart from very minor typographical differences of no consequence whatsoever, it accurately stated the terms of the orders. The plaintiffs’ solicitor then says that, having become aware of the defendant’s solicitor’s letter on 26 September 2006, he:

“… immediately made arrangements to have the Plaintiffs travel to an address at which the Plaintiffs receive faxes being able to transmit the fax to the Plaintiffs at 11.06am on that day,”

23 This evidence cannot be taken to show more than that the plaintiffs’ solicitor, at 11.06am on 26 September 2006, transmitted the defendant’s solicitor’s letter of 25 September 2006 to a fax machine at another place (or, at least, took steps at his own office calculated to cause a facsimile of that letter to be printed out by a machine he thought to be present and operational at that other place), being a place to which he had “made arrangements” for the plaintiffs to travel. There is no evidence that the plaintiffs actually went to or were at that place at any time. There is no evidence that a document as intended by the plaintiffs’ solicitor came to be printed out on any fax machine at that place. And there is no evidence that, by the means referred to by the plaintiffs’ solicitor, anything at all actually came to the notice of the plaintiffs.

24 The evidence does not admit of any finding that the terms of the orders of 25 September 2006 were actually brought to the notice of the plaintiffs or either of them by reason of the events of 26 September 2006 deposed to by the defendant’s solicitor. Nor is there evidence warranting a finding that the terms of the orders were in any other way brought to the attention of either respondent before the expiration of the period about which complaint is made in the statement of charge (“From 25 September 2006 to 27 September 2006”).

25 The fourth matter raised by the plaintiffs is that the statement of charge is defective because not sufficiently explicit to serve the purpose that such a statement is intended to serve and that it therefore does not constitute a proper basis for the orders with respect to contempt of court that the defendant seeks. The nature and function of a statement of charge appear from the following passage in the judgment of Lee and Finn JJ in Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758:

“It has long been accepted that a person should not be punished for contempt unless the specific charge against him or her be distinctly stated and an opportunity of answering it given to that person ( Coward v Stapleton (1953) 90 CLR 573 at 579-580.) “[T]his principle must be rigorously insisted upon” ( Coward v Stapleton at 580; Doyle v The Commonwealth at 516). It is reflected in O40 r6 and r8 of the Federal Court Rules which require that, on a proceeding for punishment of an alleged contempt a statement of charge ‘specifying the contempt of which the accused person is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or application’ and that the ‘notice of motion or application, the statement of charge, and the affidavits [in support of the application] shall be served personally on the accused person’.

The requirement that the statement of charge specify the contempt alleged is so as to allow the accused person to know the case he or she has to meet and to defend ( Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union(No 2) (1987) 15 FCR 64 at 73; see also: Cotroni v Quebec Police Commission (1977) 80 DLR (3rd) 490 at 497 ‘Precision is necessary if the accused is to be able to defend himself effectively’). The vehicle most commonly used to specify the conduct relied on to support the charge laid is the provision of appropriate particulars in, or annexed to, the statement of charge itself ( Concrete Constructions at 73-74). If the statement of charge itself does not sufficiently specify the contempt, the affidavit evidence served with the statement cannot be relied upon to remedy the deficiency ( Harmsworth v Harmsworth [1987] 1 WLR 1676 at 1683).”

26 Relevant principles in this respect were canvassed by the English Court of Appeal in Harmsworth v Harmsworth [1987] 1 WLR 1676. The crucial point is that a statement of charge must state particulars of the alleged contempt in such a way as to show precisely the acts or omissions said to constitute contempt. The person charged must be left in no doubt as to what breach is alleged. Where the order in question requires a particular act to be performed and the allegation is that the act was not duly performed, the particulars will, of their nature, generally be brief. But where, as in this case, the order precludes a particular course or kind of conduct “until further order”, it is necessary that the statement of charge identify the precise acts of the alleged contemnor said to constitute the particular course or kind of conduct and thus to entail disobedience to the court’s order.

27 The statement of charge filed by the defendant on 5 October 2006 made several allegations. The central allegation is that “[f]rom 25 September 2006 to 27 September 2006, the Plaintiffs by their servants and agents … entered into the Defendant’s property” and “did undertake” work. It is thus made clear that there is no allegation that either of the plaintiffs personally entered the property or did work. This is the force of the words “by their servants and agents”. But those words also convey another message, namely, that several persons are alleged to have entered the property and done work. Each of “servants” and “agents” is in the plural and the two words are joined by “and”. There is thus an allegation that entry was by several persons and that those persons consisted of “servants” in the plural “and” (not “or”) “agents” in the plural. As a matter of plain language, therefore, the allegation is that at least four persons entered, being at least two servants and at least two agents – or, perhaps, that there were at least two persons, each of whom was both a servant and an agent.

28 None of these persons is identified. The particulars to the statement of charge say that “Impeccable constructions undertook cladding work on the Plaintiffs house on the Defendant’s property”. It is not suggested that “Impeccable constructions” is the name of a man or woman. If “Impeccable constructions” is a person at all, it must be a corporation or other legal abstraction. There is no evidence that “Impeccable constructions” is a juristic person or of the identity of the human instrumentality through which any such non-human entity “entered into” the defendant’s property and “did undertake” work there.

29 In short (and even leaving aside the failure of the phrase “From 25 September 2006 to 27 September 2006” – which, by use of the words “from” and “to”, refers to a continuous and unbroken period - to identify a particular occasion or particular occasions), the statement of charge does not put the plaintiffs fairly on notice in any satisfactorily informative way so at to let them know precisely which acts or defaults of theirs are alleged to amount to disobedience to the court’s orders.

30 The fifth and final matter raised by the plaintiffs is that the evidence adduced by the defendant on the hearing of the motion, taken at its highest, does not support any version of the allegations that may be thought to be conveyed by the statement of charge. It is possible to find, on that evidence, that the defendant’s wife said to another person four things, first, that upon her going to the Londonderry property at approximately 1.10 pm on 27 September 2006 she found a man there in the final stages of installing vinyl cladding, second, that the man identified himself as “a subcontractor” and said his name was “Mark”, third, that he wrote the name “Mark” on the back of an “Impeccable Constructions” business card which he gave to the defendant’s wife and, fourth, that the man said that he had been “working on the job since Monday lunchtime” (“Monday” presumably being the then most recent Monday, 25 September 2006).

31 Apart from its hearsay quality, probably the most striking thing about the evidence is the entire absence of any basis for connecting the workman “Mark” with the plaintiffs – so as to bring him within the class of persons acting under the plaintiffs’ authority or on their behalf referred to in Order 1 and Order 2 of 25 September 2006. Counsel for the defendant sought to deal with that by pointing to statements of the plaintiffs, made several weeks earlier, as to work they proposed to undertake. But any conclusion drawn from that would be mere conjecture.

32 Each of the five matters raised by the plaintiffs is of substance. Subject only to the possibility that Order 2 made on 29 September 2006 may have dispensed with the “served personally” requirement in relation to the notice of motion, there was no compliance with Part 55 rule 9. Nor was there compliance with Part 55 rule 7. As to rule 40.7, it has not been shown that the plaintiffs had notice of the orders of 25 September 2006 by means of steps taken by their solicitor or at all, with the result that rule 40.7(1) applied and was not satisfied. These failures to observe the rules of court might be excused by the court in exercise of its power to dispense with a requirement of the rules in a particular case. It was submitted on behalf of the defendant that the dispensing power should now be exercised in this case. Counsel for the defendant emphasised that the plaintiffs were represented by counsel when the matter came before me, with the result, it was said, that they should be taken to have had effective notice of all relevant matters.

33 I do not accept that the appearance on behalf of the plaintiffs to defend the charge of contempt warrants any dispensation. Regard must be had to the substance and justice of the case. Two important matters of a fundamental kind stand out. First, it has not been shown by the defendant that the plaintiffs were aware of the terms of the orders of 25 September 2006 on that day or on either of the two immediately following days. The contempt alleged against the plaintiffs involved events said to have occurred within that period of three consecutive days. Second, the statement of charge did not fairly and adequately alert the plaintiffs to the particular acts and defaults alleged against them. I need not refer further to the imprecision of its terms and its failure to identify any physical act of an identified person.

34 These matters of substance are of themselves sufficient to mean that the notice of motion fails. They also militate against any action by the court to remove the effects of the several instances of non-compliance with the rules of court.

35 An allegation of contempt of court is serious and not to be made lightly. It may lead to loss of liberty. It behoves anyone pursuing such an allegation to do so with precise attention to all matters going to due process.

36 The notice of motion is dismissed with costs.

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