Mensink v Parbery

Case [2018] FCAFC 101

FEDERAL COURT OF AUSTRALIA

Mensink v Parbery [2018] FCAFC 101

Appeal from: In the matter of Queensland Nickel Pty Ltd (In Liquidation) (Federal Court of Australia, QUD580/2016, Order dated 27 March 2017 and Orders 1, 2, 3, 6, 8,9 and 10 dated 28 March 2017)
File number: QUD 208 of 2017
Judges: BESANKO, WIGNEY AND BROMWICH JJ
Date of judgment: 28 June 2018
Catchwords:

PRACTICE AND PROCEDURE – consideration of the validity of orders made by a judge of this Court – appeal against orders for two arrest warrants to issue

CORPORATIONS – where arrest warrants issued for the arrest of the appellant in relation to examination for the purposes of a special purpose liquidators’ investigation – where primary judge ordered that a warrant issue for the arrest of the appellant in order to secure his attendance at Court for an examination before a registrar – where primary judge ordered that a warrant issue for the arrest of the appellant following his failure to attend voluntarily for examination by the respondents, in their capacity as additional special purpose liquidators, on two separate occasions – whether appellant provided with no notice of orders requiring attendance for examination – whether primary judge erred in ordering a warrant for arrest to issue by failing to consider reasonable cause for non-attendance on examination dates – consideration of r 11.10 of the Federal Court (Corporations) Rules 2000 (Cth) and matters identified in Ian Lawrence Struthers (in his capacity as liquidator) of PACI Pty Ltd [2005] NSWSC 864

CONTEMPT OF COURT – where primary judge signed a statement of charge for contempt of court arising from the appellant’s failure to attend on two examination dates – where primary judge made further orders for a warrant to issue for the arrest and detention of the appellant to answer those charges of contempt of court – whether primary judge erred in ordering a warrant for arrest to issue by failing to consider r 42.14(2) of the Federal Court Rules 2011 (Cth) correctly – whether primary judge failed to consider the defects in the statement of charge – consideration of the requirements of r 42.14(2) of the Federal Court Rules – consideration of the requirements of rr 41.06 and 41.07 of the Federal Court Rules

PRACTICE AND PROCEDURE – where respondents filed a notice of objection to competency, but did not press this at the appeal hearing – where orders made by the primary judge were interlocutory in nature, so as to require leave to appeal – where no such leave required – consideration of this Court’s appellate jurisdiction under s 24 of the Federal Court of Australia Act 1924 (Cth) – where judgment appealed from affects the appellant’s liberty and was made in proceedings relating to an alleged contempt of court and so engaged s 24(1C) of the Federal Court of Australia Act – whether respondents’ notice of objection to competency should be formally dismissed

Legislation:

Corporations Act 2001 (Cth) ss 436A, 439C, 596A

Federal Court…

Continue reading Mensink v Parbery

Sign in free to access the full text

Details
AGLC
Mensink v Parbery [2018] FCAFC 101
Case
[2018] FCAFC 101
Decision Date

CaseChat Overview and Summary

The appeal in Mensink v Parbery before the Federal Court of Australia centred on the validity of orders made by a judge of the Court, which resulted in the issuance of warrants for the arrest of the appellant, Mr Clive Theodore Mensink. The orders were made in relation to examinations conducted for the purposes of a special purpose liquidators’ investigation into Queensland Nickel Pty Ltd. The primary judge ordered the issuance of warrants following Mr Mensink's failure to attend for voluntary examination on two occasions, 22 February 2017 and 27 March 2017. Additionally, the primary judge issued a statement of charge for contempt of court and ordered a warrant for Mr Mensink's arrest and detention to answer those charges. Mr Mensink appealed against the orders for the two arrest warrants, the contempt charges, substituted service, and costs. The respondents filed a notice of objection to competency but did not pursue it during the appeal hearing.

The legal issues before the court encompassed whether the primary judge erred in ordering the warrants for arrest to issue without considering reasonable cause for Mr Mensink's non-attendance, whether the primary judge correctly applied relevant rules, and whether the competency issue required leave to appeal. The court had to consider r 11.10 of the Federal Court (Corporations) Rules 2000 (Cth) and r 42.14 of the Federal Court Rules 2011 (Cth), as well as the requirements of the Federal Court of Australia Act 1976 (Cth). The court also needed to address whether the primary judge failed to consider the defects in the statement of charge correctly.

The court found that the primary judge did not err in issuing the Contempt Warrant for any of the reasons or grounds advanced by Mr Mensink. The orders made by the primary judge were interlocutory in nature, but s 24(1C) of the Federal Court of Australia Act provided that leave was not required for the appeal as the judgment affected Mr Mensink's liberty and was made in proceedings relating to contempt of court. The competency issue raised by the respondents was dismissed, as it was not pressed during the hearing and no substantial time was taken with it.

The court concluded that it had not been demonstrated that the primary judge erred in ordering the Examination Warrant to issue under r 11.10 of the Corporations Rules or that the Contempt Warrant to issue under r 42.14 of the Federal Court Rules. Therefore, the appeal was dismissed with costs, and the respondents' notice of objection to competency was dismissed.

Orders

Orders of the court

1. The appeal be dismissed with costs.

2. The respondents’ notice of objection to competency be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that the primary judge did not err in issuing the Contempt Warrant for any of the reasons, or on any of the grounds, advanced on Mr Mensink’s behalf.CONCLUSION AND DISPOSITION It has not been demonstrated that the primary judge erred in ordering that the Examination Warrant issue under r 11.10 of the Corporations Rules, or that the Contempt Warrant issue under r 42.14 of the Federal Court Rules. It follows that I agree with Bromwich J that the appeal should be dismissed with costs. This appeal principally concerns the validity of orders made by a judge of this Court, pursuant to which warrants were issued for the arrest of the appellant, Mr Clive Theodore Mensink, in relation to examinations for the purposes of a special purpose liquidators’ investigation into Queensland Nickel Pty Ltd. On 27 March 2017, the primary judge ordered that a warrant issue for the arrest of Mr Mensink in order to secure his attendance at this Court for an examination before a registrar. That order was made following his failure to attend for examination voluntarily on two separate occasions on 22 February 2017 and 27 March 2017. On each occasion, the examination was to be conducted on behalf of the respondents, Mr Stephen Parbery and Mr Michael Andrew Owen, in their capacity as additional special purpose liquidators of Queensland Nickel (also referred to as QN). On 28 March 2017, the primary judge signed a statement of charge for contempt arising from Mr Mensink’s failure to attend on the two examination dates. Also on 28 March 2017, the primary judge made further orders, inter alia, for a warrant to issue for the arrest and detention of Mr Mensink to answer those charges of contempt of court. Mr Mensink appeals against the orders for the two arrest warrants to issue, and collaterally against the contempt charges having issued. He also appeals, in the event that he succeeds in his appeal against the arrest warrants to issue, against orders made for substituted service and costs. The respondents filed a notice of objection to competency but did not press this at the hearing of the appeal. The competency issue concerned the orders being made by the primary judge being interlocutory in nature, so as to require leave to appeal. No such leave is required. Section 24 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) deals with this Court’s appellate jurisdiction. Section 24(1A) requires leave for an appeal from an interlocutory judgment. There is no doubt that the orders of the primary judge were interlocutory in nature. However, s 24(1C) provides that leave is not required under s 24(1A) for interlocutory judgments that affect the liberty of an individual or are made in proceedings relating to contempt of this Court or any other court. The judgment appealed from affects Mr Mensink’s liberty and was made in proceedings relating to an alleged contempt of court, and so engaged s 24(1C): see Mensink v Parbery [2017] FCA 1248 per Wigney J at [53]; see also Webster v McIntosh (1980) 32 ALR 603 at 607. Accordingly, the respondents’ notice of objection to competency should be formally dismissed. No substantial time was taken with this issue and, in any event, no more than would have been required of Mr Mensink to make clear why leave was not required for his appeal in the first place. Chronology of key events

Ratio Decidendi

Legal Principle Established

On 3 August 2016, a summons for the examination of Mr Mensink was issued pursuant to s 596A of the Corporations Act 2001 (Cth) (the Examination Summons). That summons relevantly required Mr Mensink to attend before this Court on 19 August 2016 to be examined about the examinable affairs of Queensland Nickel. It would appear that the return date of the Examination Summons was adjourned on various occasions by a Registrar. On 15 December 2016, District Registrar Baldwin ordered that the Examination Summons be amended and made returnable on 22 February 2017. The Registrar also made orders for substituted service, including an order that service in accordance with the orders “shall be deemed good and sufficient service” of the Examination Summons upon Mr Mensink. There is no dispute that the Examination Summons was served in accordance with the terms of the orders for substituted service. On 31 January 2017, Mr Mensink swore an affidavit. That affidavit was prepared by a solicitor, Mr Sameh Iskander. It was apparently sworn overseas. The relevant statements made by Mr Mensink in this affidavit are detailed in Bromwich J’s reasons. Suffice it to say that, while parts of the affidavit are grammatically confused and confusing, it is abundantly clear that Mr Mensink was well aware of the material terms of the Examination Summons. He was certainly well aware that he had been summoned to appear for examination before the Court on 22 February 2017. On 20 February 2017, Mr Iskander swore and filed an affidavit which annexed a copy of Mr Mensink’s affidavit. On the same day, Mr Iskander sent an email to the liquidators’ solicitor which stated, rather obliquely, that “I don’t have instructions that Mr Mensink will appear this week”. On 21 February 2017, Mr Iskander swore another affidavit. It is clear from the terms of the affidavit that, by this time at the very least, Mr Iskander had been retained to act on Mr Mensink’s behalf. The affidavit simply stated that Mr Iskander had received a copy of a letter from a doctor, Dr Manish Sagar. A copy of that letter was annexed. Mr Iskander did not state who he received that letter from, or how he received it, or who had instructed him to provide it to the Court. Nor did he say anything in the body of his affidavit about Mr Mensink, or his circumstances, or any communications that Mr Iskander had had with Mr Mensink, or any instructions that he may have had in relation to Mr Mensink’s appearance pursuant to the Examination Summons. The contents of Dr Sagar’s letter, which is dated 20 February 2017, are detailed in Bromwich J’s reasons. It is sufficient to note that it is abundantly clear from its contents that Dr Sagar had been asked to prepare the letter so that it could be provided to the Court in response to the Examination Summons. Importantly, while it referred to various “medical issues” that Mr Mensink supposedly had, it stated that Dr Sagar did not think that Mr Mensink’s medical conditions precluded him from travelling, though it did state that Dr Sagar thought that Mr Mensink’s “clinical depression and anxiety disorder … make it difficult for him [Mr Mensink] to function properly in a stressful environment such as a legal examination”.