McKinnon v Adams (No 2) - [2003] VSC 502

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8605 of 2001

JAMIESON MCKINNON & ORS	Plaintiffs
v
HALINA WENDY ADAMS & ORS	Defendants

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 19 November 2003
DATE OF JUDGMENT:	28 November 2003
CASE MAY BE CITED AS:	McKinnon v Adams (No.2)
MEDIUM NEUTRAL CITATION:	[2003] VSC 502

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Courts and judges - Contempt of court - failure to comply with order - civil proceeding – civil contempt/criminal contempt – contumacy – flagrant breach not merely casual, accidental or unintentional – challenge to Court’s authority – relevance of Sentencing Act 1991

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APPEARANCES:	Counsel	Solicitors
For the Administrator	Mr A. McClelland	Corrs Chambers Westgarth
For the Defendants	Mr G. McCormick	Goldsmiths

HIS HONOUR:

On 28 April 2003 this Court appointed Morris Dunlea to be the administrator of Body Corporate Strata Plan No. 17739 which is the body corporate of a subdivision consisting of a small block of older style flats in Alfred Street, Kew. The appointment was made because of the total breakdown of the administration of the body corporate over a very long time caused largely if not solely by the activities of the owner of three of the six units, Halina Wendy Adams.

As well as appointing Mr Dunlea the administrator of the body corporate, the Court made a number of ancillary orders designed to facilitate his administration. In particular it ordered that all members of the body corporate deliver to him any documents which any of them may have had which were the property of the body corporate. The Court also ordered that each unit holder pay the administrator $2,000 in respect of each unit owned by him or her for the purpose of providing the administrator with funds to commence his work.

The order of the Court also reserved liberty to apply to any of the unit holders, the body corporate itself and the administrator for further orders or directions in respect of the administration. Pursuant to that liberty to apply, by a summons issued 30 October 2003 the administrator now seeks a number of orders against Halina Adams for breach of some of the orders of the Court made on 28 April and for other orders compelling Ms Adams to honour her obligations with respect to a levy imposed by him on all unit holders, by a notice dated 10 July 2003 and to perform certain other acts which he alleges she must perform for the body corporate to operate properly.

This summons first came before this Court on 6 November when it was supported by an affidavit of Mr Dunlea to which there were a number of exhibits. In that affidavit, Mr Dunlea deposed to Ms Adams having failed to comply with two orders made by the Court on 28 April, namely that she deliver to him all books, records, papers, cheque books, pay in books, correspondence and all other documents and copy documents, the property of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKinnon v Adams (No 2)

Details

AGLC: McKinnon v Adams (No 2) [2003] VSC 502
Case: [2003] VSC 502
Decision Date: 28 November 2003

CaseChat Overview and Summary

In the case of McKinnon v Adams, the dispute between the parties centred on the failure to comply with a court order, which led to allegations of contempt of court. The proceedings were held in the Supreme Court of Victoria, with the matter being heard by Justice Maxwell. The case involved an ongoing civil dispute where the defendant, Adams, was found to be in contempt for not adhering to a specific court order.

The primary legal issue before the court was determining whether the contempt committed by Adams was civil or criminal in nature. The court had to assess whether Adams' actions constituted a flagrant breach of the order, which would warrant a finding of criminal contempt, or whether the breach was more casual, accidental, or unintentional, which would result in a finding of civil contempt. The court also needed to consider the implications of the Sentencing Act 1991 on the characterisation of the contempt and the appropriate sanctions.

Justice Maxwell concluded that Adams' actions amounted to criminal contempt due to the flagrant and deliberate nature of the breach. The judge found that Adams' failure to comply with the court order was not a casual or accidental omission but a clear challenge to the authority of the court. The judge emphasised that such blatant disregard for a court order warranted a response that upheld the integrity and authority of the judicial system. The court considered the Sentencing Act 1991, which provides for the imposition of penalties for contempt, reinforcing the seriousness of Adams' conduct. Consequently, the court found Adams guilty of criminal contempt and ordered appropriate sanctions.

Orders