Melksham & Oser Pty Ltd v Fraser Island Barge Transport P/L & Anor
[2001] QSC 441
•22 November 2001
SUPREME COURT OF QUEENSLAND
[2001] QSC 441
File No S673 of 2001
BETWEEN:
SIDNEY ALBERT MELKSHAM and OSER PTY LTD (ACN 010 946 719)
Plaintiff
AND:
FRASER ISLAND BARGE TRANSPORT PTY LTD (ACN 093 569 530)
First Defendant
AND:
KONSTANTINOS LADAS
Second Defendant
MOYNIHAN J – REASONS FOR JUDGMENT
DELIVERED ON: | 22 November 2001 |
HEARING DATES: | 29 – 31 October 2001 |
ORDER: | The application of 4 September 2001 is dismissed. |
CATCHWORDS: | PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – WHAT CONSTITUTES – DISOBEDIENCE OF ORDERS OF COURT – INJUNCTIONS – Where plaintiffs brought application for injunction – where order made restraining the defendants – where parties subsequently made an agreement outside the terms of the order – where plaintiff sought to enforce order – whether the order is still applicable to breaches of the agreement. AG v Times Newspapers Ltd (1974) AC 273 Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd [1956] VLR 555 |
COUNSEL: | R G Bain QC for the applicants / plaintiffs. G M Egan with A Curtin for the respondents /defendants. |
SOLICITORS: | Carswell & Company Solicitors for the applicants / plaintiffs. Grants Lawyers for the respondents /defendants. |
The corporate parties are rivals in the barge trade for the transport of people and vehicles from Inskip Point on the mainland to Fraser Island and return. The individual parties are the directors of the corporate parties responsible for the operation of their vessels.
On 18 January 2001, the plaintiffs brought an originating application to restrain the defendants
“from operating or causing to be operated any barge, ferry or other vessel in the area reserved by the Applicants’ permits held from the Ports Corporation of Queensland.”
The application came before Wilson J on 25 January 2001. The plaintiffs gave the usual undertaking as to damages and undertook
“to operate their barges in accordance with clause 4 of the permits (exhibits A, B of the affidavit of Sidney Albert Melksham filed 18/1/01) as if the [defendants] are operators in the permitted area A on the scetches [sic] attached to the said permits”.
The defendants were then:
“3.… restrained until trial or earlier order from operating or causing to be operated any barge, ferry or other vessel in the area reserved by the applicants’ permits held from the Port Corporation of Queensland, except on such occasion as in the honestly [sic] and reasonably [sic] opinion of the Master of the vessel the prevailing weather conditions determine that continued operation of the vessel in any area other than that which is the subject of the said permits jeopardises the safe operation of the vessel and the safety of its passenger and crew.”
On 15 February 2001, the defendants applied to join Jaigear Pty Ltd, a company associated with the plaintiffs, and sought an order:
“2. That until the trial of this action or further earlier order,
(a) Jaigear Pty Ltd, by itself, its servants and/or agents, be restrained from landing any barge operated by it in an area outside and/or beyond the limits of the areas marked “B”, “C” and “D” on the permits to occupy exhibited to Mr Melksham’s affidavit filed herein on 18 January 2001 and being marked with the letters “A” and “B” respectively, save as is provided for in clause 4 of such permits;
(b) Alternatively to the order sought in sub-paragraph (a) hereof, Sidney Albert Melksham, by himself, his servants and/or agents, be restrained from landing any barge operated by him in an area outside and/or beyond the limits of the areas marked “B”, “C” and “D” on the permits to occupy exhibited to Mr Melksham’s affidavit filed herein on 18 January 2001 and being marked with the letters “A” and “B” respectively, save as is provided for in clause 4 of such permits.”
On 22 February 2001, an agreement was reached on the following terms:-
“1. The parties and Jaigear Pty Ltd ACN 010 400 503 agree as follows:
(i) in full compromise of the application by the Defendants filed on 15 February 2001; and
(ii) subject to the terms hereof, in full compromise of the action.
2.The Plaintiffs agree that, notwithstanding paragraph 3 of the Order of Wilson J of 25 January 2001, the Defendants be at liberty from now until 21 September 2001 to operate or cause to be operated a barge in that part of “Area B” (described in and the subject of the permit, a copy of which is Exhibit “B” to the Affidavit of Sidney Albert Melksham filed 18 January 2001) between the boundary of Areas “A” and “B” and a line from the common inland point from which Areas “A”, “B”, “C” and “D” are therein defined, through that point which is sixty metres east of the common boundary between Areas “A” and “B” along the high water mark line in Area “B” identified in Exhibit A to the Affidavit of Adrian Charles Couper made on 14 February 2001.
3.Until trial or earlier order, the Defendants shall have use of that part of Area “B” referred to in paragraph 2 as if they were the operators of that area on the same terms as “Area A” under the undertakings to Wilson J on 25 January 2001.
4.In addition to the matters referred to in paragraphs 2 and 3, in the event that the ramp of any barge operated by or for the Defendants in the area referred to in paragraph 2 cannot be lowered at high tide onto sand (whether wet or dry) which is trafficable by four wheel drive vehicles because of tidal or wave action at the time when that barge is attempted to be landed there then, with the prior consent of any master then operating a barge between Inskip Point and Fraser Island on behalf of either of the Plaintiffs or Jaigear Pty Ltd, which consent shall not be unreasonably withheld, the Defendants may cause the first-named barge to be landed at that point in Area “B” immediately easterly of the line referred to in paragraph 2 where, upon the lowering of the ramp, it is so trafficable.
5.Jaigear Pty Ltd agrees that until the sooner of trial of the action or 21 September 2001 it will not operate, or causes [sic] to be operated, a barge in Area “A” or that area referred to in paragraph 2.
6.Each of the parties to this application will carry his or its costs of and incidental to the application and agree in an order by the Court that the application be dismissed with no order as to costs.
7.Each of the parties and Jaigear Pty Ltd agrees that he or it will not until 21 September 2001 seek any injunction against the operation by the Defendants or Jaigear Pty Ltd of a barge in the Inskip Point Recreation Area easterly of the eastern boundary of Area “D” on the basis of absence of lawful authority for any such operation.
8.Subject to the liberty afforded the Defendants referred to in paragraphs 2 and 3, the parties otherwise abide the orders by and undertakings to Wilson J on 25 January 2001.
9.The parties agree that, providing there has been compliance by the opposing party(s) with this agreement and those orders and undertakings, the parties themselves will take no further steps in the action and will join in consent transfer of the action to the abeyance list (or the equivalent as the Court directs) to the intent that, as soon as practicable after 20 September 2001, the action be discontinued by consent with no order as to costs.”
The significance of the 21 September dates in paras 2, 5, 7 and 9 is that the permits to operate and land barges in the areas identified as “B”, “C” and
“D” expired by that date.
On 4 September 2001, the plaintiffs applied to have the defendants dealt with for contempt of Wilson J’s order of 25 January in that they;
“operated or caused to be operated a barge or ferry in the area reserved by the Applicants’ permits held from the Port Corporation of Queensland on the following particular occasions:”
A number of alleged breaches are then particularised. They all occurred after 22 February 2001.
The distinct nature of contempt proceedings is illustrated by the burden of proof being beyond reasonable doubt and by the necessity for the order to be clear and unequivocal. They are not designed to regulate relations between parties but to enforce the authority of the court.
The agreement of 22 February regulates relations between the parties from that date in respect of the operation of barges between Inskip Point and Fraser Island and constitutes a fresh cause of action: Re Hearn; de Bertodano v Hearn (1913) 108 LT 452 (affirmed Re Hearn; de Bertodano v Hearn (1913) 108 LT 737); McLaren v Schuit (1983) 33 SASR 139; Green v Rozen [1955] 1 WLR 741. As a consequence the position is different from that regulated by the order of 25 January.
The agreement varied the rights of the parties between themselves subsequent to the 25 January order. Notably, the agreement allowed the defendants to operate barges in a 60 metre zone identified in paragraph 2 of the agreement, while the order was postulated on the basis that the defendants were not to operate there. There are factual issues in respect of the contempts particularised, or at least the majority of them, as to whether the defendants operated outside the permission given by the agreement of 22 February.
It may be true that if the compromise reflected in the agreement of 22 February is repudiated by the defendant, the plaintiff may be able to elect between enforcing the compromise or accepting the repudiation. In the latter event the original cause of action revives and may be enforced; Buseska v Sergio and Anor (1990) 102 FLR 157. It may also be that the parties are contractually bound by the orders and undertakings of 25 January 2001 to the extent to which they are made applicable by the agreement. Neither of those considerations is applicable to this application.
The nature of this application does not give rise to the considerations of whether a compromise may be enforceable by an application in the compromised action rather than by a fresh action canvassed in Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd [1956] VLR 555, McLeish v Faure (1979) 40 FLR 462 and General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6.
As I have said the parties resolved their differences by the agreement of 22 February. In Gilbert v Gilbert [1955] QSR 245 this court concluded that parties may by agreement so vary the terms or effect of an order that a court will decline to enforce it. The court refused to enforce an order by writ of attachment on the basis that the wife had waived her right to enforce an order by a subsequent agreement with the husband. In doing so it referred to Harvey v Hall [1873] LR 16 Eq 324 where the court declined to enforce an order by attachment in circumstances where subsequent to the order and its breach the parties entered into a fresh arrangement and the defendant again defaulted. The attachment sought was founded on the second breach. See also In Marriage of Ramsey [1983] FLC 78,058; Harvey v Creswell (1991) 104 FLR 121.
In Harvey v Creswell, Finn J considered that Gilbert v Gilbert and Harvey v Hall founded a “principal or policy” that an order should not be enforced where the parties had agreed to resolve their differences prior to the application for contempt. In Gilbert v Gilbert, Townley J was of the view that the applicant’s right of attachment had been waived by the parties agreeing a variation of the terms or effect of the judgment sought to be enforced.
In this case, the plaintiffs seek to have the defendants dealt with as though breaches of the agreement of 22 February were in contempt of the order of 25 January which effected a different relationship between the parties to that regulated by the agreement.
I am not sure that the effect of what has occurred is accurately described as a waiver of the contempts particularised. It is perhaps more accurately said that since 22 February relations between the parties are regulated by the agreement so as to render the order of 25 January irrelevant or inapplicable to breaches of the agreement, save to the extent to which they may have a contractual operation.
The weight of authority appears to support the view that no sufficient public interest is served by punishing the offender if the only person, for whose benefit the order was made, chooses not to insist on its enforcement, per Lord Diplock, AG v Times Newspapers Ltd (1974) AC 273 at 308, see also Home Office v Harman [1983] 1 AC 280 at 310. Although there may be public policy exceptions to this; see Pojé v Attorney-General of British Columbia [1953] 2 DLR 785 in my view they do not arise here.
The considerations being those canvassed the application of 4 September 2001 should be dismissed.
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