TERRENCE JOHN O’CONNOR (First applicant) and JUDITH ANN O’DONOGHUE
(Second applicant) and JOHN NEIVE O’DONOGHUE (Third applicant)
v BERNARD WILLIAM HOUGH (First respondent) and KENNETH MICHAEL HOUGH
(Second respondent) and DENBROOK INVESTMENTS PTY LTD ACN 010 236 978 (Third respondent) and GLENRICK PTY LTD ACN 080 390 745 (Fourth respondent) and PETER JOHN RIMMINGTON (Fifth respondent)
FILE NO/S:
No 5819 of 2014
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
8 January 2016
DELIVERED AT:
Brisbane
HEARING DATE:
2 November 2015; Supplementary written submissions from the second respondent dated 17 November 2015; Supplementary written submissions from the second applicant dated 20 November 2015.
JUDGE:
Burns J
ORDER:
The orders of the court are:
1. The amended application filed on behalf of the second respondent on 17 November 2015 is dismissed;
2. The second respondent is ordered to pay the second applicant’s costs of and incidental to the dismissed application to be calculated on the standard basis.
CATCHWORDS:
CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CONTEMPT – STRIKING OUT – INHERENT JURISDICTION OF THE COURT – where a party applied to strike out an application for contempt brought against him –– whether the application for contempt suffered from an irremediable procedural defect – whether the allegations of contempt were so untenable that they could not possibly be sustained at the hearing
CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CONTEMPT – STRIKING OUT – INHERENT JURISDICTION OF THE COURT – where a party applied to strike out an application for contempt brought against him – where the strike out application claimed the application for contempt was bad for duplicity – whether the rule against duplicity applies to contempt applications
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CONTEMPT – PARTICULARS – where a party applied to strike out an application for contempt brought against him for alleged breach of undertakings given to the court – where the strike out application was brought on various grounds relating to alleged deficiencies in the particulars supplied for the application for contempt – whether the particulars were deficient – whether it is permissible for particulars to incorporate documents by reference
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – OTHER MATTERS – where an undertaking given by a party to the court was recorded in an order – where that order did not contain a penal notice pursuant to r 665(3) UCPR – whether r 665(3) applies to undertakings to the court recorded in an order
[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.
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AGLC
O'Connor v Hough [2016] QSC 4
Case
[2016] QSC 4
Decision Date
CaseChat Overview and Summary
The case of O'Connor v Hough involved a dispute where the respondent, Mr Hough, sought to have an application for contempt brought against him dismissed. The application for contempt alleged that Mr Hough had breached undertakings given to the court. The legal issues before the court included whether the contempt application was bad for duplicity, whether particulars could incorporate documents by reference, and whether a penal notice was required to be endorsed on orders containing undertakings given by a party to the court.
The court examined the rule against duplicity and found that it does not apply to contempt applications in the strict sense. Instead, the court considered whether the charge was sufficiently certain to inform the respondent of the case he was expected to meet. The court also found that it is permissible for particulars to incorporate documents by reference. Additionally, the court held that there was no requirement for a penal notice to be endorsed on orders containing undertakings given by a party to the court.
The court dismissed the amended application filed by the second respondent and ordered the second respondent to pay the second applicant's costs of and incidental to the dismissed application.
Orders
Orders of the court
The orders of the court are:
1. The amended application filed on behalf of the second respondent on 17 November 2015 is dismissed;
2. The second respondent is ordered to pay the second applicant’s costs of and incidental to the dismissed application to be calculated on the standard basis.
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
For Mr Hough, reliance was placed on decisions such as Costello v Courtney,[39] Camm v ASI Development Company Pty Ltd[40] and Burton v Spencer[41] in an attempt to urge a different conclusion. Each of those decisions concerned orders and not undertakings, and do not assist on this point. I hold that there was no requirement under the rules for a penal notice to be endorsed on the relevant orders.[39][2000] QSC 67; [2001] 1 Qd R 481.[40][2007] QCA 317.[41][2015] QSC 187. For Mr Hough, it is contended that the contempt application is bad for duplicity. The common law rule against duplicity prevents one count on an indictment charging a person with two or more separate offences.[42] The often-cited rationale for the rule appears in Johnson v Miller[43] and is to the effect that a defendant in a criminal trial is entitled to know the specific offence that is being alleged against him or her. [42]Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 104.[43][1937] HCA 77; (1937) 59 CLR 467 at 497 – 498. Here, if the rule against duplicity applies, the first of the two charges set out above (at [7]) would fall foul of that rule. That is because the charge contains a compound series of allegations – that is to say, that Mr Hough failed to co-operate, to act reasonably and genuinely in and to do all things necessary on his part to assist JBS – coupled with an allegation expressed in the alternative that Mr Hough so failed by either refusing or failing to answer JBS’ queries in a timely way. In support of Mr Hough’s contention that the rule against duplicity applies, a passage from the judgment of Douglas J in ASIC v Jorgensen & Ors[44] was submitted to be authority for the proposition that “a complaint of duplicity in a contempt charge was a good complaint”.[45] This submission was not expressed with great conviction, and it was rightly acknowledged by Mr Hough’s counsel that there is a “strong line of authority” against the correctness of that proposition.[46] [44][2008] QSC 91 at 5 – 6 [17].[45]Further Submissions on behalf of Mr Hough dated 17 November 2015, [6].[46]Ibid [7], referring to Harmsworth v Harmsworth [1987] 3 All ER 816 at 823; [1987] 1 WLR 1676 at 1686; Concrete Constructions Pty Ltd & Anor v Plumbers & Gasfitters Employees’ Union & Anor (No 2) [1987] FCA 117 at [31]; (1987) 15 FCR 64 at 74; Lazar v Taito (Australia) Pty Ltd & Anor [1985] FCA 35; (1985) 67 ALR 652 at 655. See also Matthews v ASIC [2009] NSWCA 155 at [45], [165]; Burwood Council v Steve Nolan Constructions Pty Ltd [2014] NSWLEC 54 at [47]. Douglas J did not hold that the rule against duplicity, in its strict sense, applies to contempt applications, and nor would I. Instead, his Honour was dealing with a complaint that had been advanced by the respondent in that matter under the rubric of duplicity. This was simply a convenient way of referring to that complaint. The respondent had been charged with contempt of five separate orders in circumstances where the charge and particulars failed to identify which conduct was alleged to amount to a contempt of any particular order. His Honour held that this was a valid complaint. No argument appears to have been directed to his Honour on the question whether, as a general proposition, the rule against duplicity applied to a proceeding for contempt. All that his Honour decided was that, in the circumstances mentioned, the respondent could not “consider sensibly which acts alleged against him are alleged to contravene which order without making uncertain assumptions or drawing inferences themselves unclear.”[47] In so holding, his Honour did no more than to find that the charge was preferred in terms that were too uncertain to inform the respondent of the case he was expected to meet. There was nothing surprising about that result. As earlier mentioned, “[a] person applying for punishment of a contempt must file an application specifying the alleged contempt”,[48] and that will be so if it sufficiently informs the alleged contemnor of the subject matter of the breach alleged.[49] The charge considered by his Honour was plainly inapt to do so.[47]ASIC v Jorgensen & Ors [2008] QSC 91 at 5 – 6 [17].[48]UCPR r 926(1).[49]Harmsworth v Harmsworth [1987] 3 All ER 816 at 823; [1987] 1 WLR 1676 at 1686; Matthews v ASIC [2009] NSWCA 155 at [40].