PBG Projects Pty Ltd v Gu
[2024] FCA 1418
•5 December 2024
FEDERAL COURT OF AUSTRALIA
PBG Projects Pty Ltd V Gu [2024] FCA 1418
File number: WAD 99 of 2022 Judgment of: FEUTRILL J Date of judgment: 5 December 2024 Date of publication of reasons: 10 December 2024 Catchwords: PRACTICE AND PROCEDURE – application to issue warrant for arrest under r 41.05 of the Federal Court Rules 2011 (Cth) – failure to attend means inquiry and produce documents in accordance with orders Legislation: Federal Court Rules 2011 (Cth) rr 41.05; Divs 41, 42, 42.2 Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 20 Date of hearing: 5 December 2024 Counsel for the Applicant: Mr C Armeli Solicitor for the Applicant: Armeli & Molony Lawyers Counsel for the Respondent: The Respondent did not appear ORDERS
WAD 99 of 2022 BETWEEN: PBG PROJECTS PTY LTD ACN 609 756 890
Applicant
AND: TIANYOU GU
Respondent
ORDER MADE BY:
FEUTRILL J
DATE OF ORDER:
5 DECEMBER 2024
THE COURT ORDERS THAT:
1.A warrant issue for the arrest of Mr Tianyou Gu to be detained and brought before the Court to appear in person to give evidence at a means inquiry and produce documents pursuant to orders made by Registrar Trott on 13 May 2024.
2.The Sheriff be directed to inform the Court of the arrest of Mr Gu and to have Mr Gu brought before the Court at 2.15pm (AWST) on 12 December 2024 or so soon thereafter as is reasonably practicable.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FEUTRILL J:
Introduction
On 5 December 2024, after a short oral hearing, I made orders for and issued a warrant for the arrest of the respondent. These are my reasons for making the orders and issuing the warrant.
The orders were made on an interlocutory application the applicant filed on 9 October 2024. The applicant sought orders for the arrest of the respondent to answer a charge said to be ‘set out below’ and to detain the respondent unless he appears in person before the Court on a date to be fixed to answer the charge and submit to the order of the Court. No charge was ‘set out below’ in the interlocutory application. Further, no statement of charge was filed in accordance with the procedure set out in Div 42.2 of the Federal Court Rules 2011 (Cth). A draft Form 90 warrant for the arrest of the respondent was also filed that identified a charge for contempt, in substance, for failing to attend a means inquiry on 11 July 2024 and failing to produce specified tax returns 7 days before that hearing.
The applicant filed written submissions in support of the application. At the oral hearing the applicant also read and relied upon eleven affidavits of Damian Eugene Molony sworn 1 February 2023, 21 March 2023, 28 April 2023, 23 June 2023, 22 November 2023, 23 January 2024, 12 February 2024, 21 March 2024, 10 May 2024, 9 July 2024 and 13 August 2024. The applicant’s central complaint is that the respondent has repeatedly failed to attend Court to give evidence and produce documents as ordered by the Court with respect to a means inquiry hearing.
In the absence of an application for punishment for alleged contempt of court, a statement of charge and evidence to the effect that the respondent is likely to abscond or otherwise withdraw from the jurisdiction of the Court, I have taken the interlocutory application and draft Form 90 warrant for the respondent’s arrest to be, in effect, an application to issue a warrant for the arrest of the respondent under r 41.05 of the Rules on the ground that he has failed to attend Court to give evidence and produce documents in accordance with orders of the Court that he do so. Further, at the oral ex parte hearing on 5 December 2024, it emerged that the principal purpose underlying the application appears to be to compel the respondent’s attendance at Court rather than punish him for contempt.
For the reasons that follow, I was satisfied that a warrant for the arrest of the respondent should issue. At the time of the oral hearing, I was of the view that the warrant should issue substantially in the form that the applicant had prepared in draft. However, upon reflection, I was not satisfied that it was appropriate to issue a warrant to arrest the applicant to answer a charge of contempt of court when no application for punishment for contempt and no statement of charge had been filed. Therefore, the sealed orders and warrant issued reflect the nature of a warrant issued under r 41.05 rather than under Div 42.2 of the Rules.
Background
On 27 March 2023, in accordance with self-executing orders and failure of the respondent to comply with orders of the Court, the respondent’s defence was struck out and judgment was entered for the applicant in the total sum of $2,986,631.89 plus interest and costs.
On 1 June 2023 Registrar Trott made orders for the issue of a means inquiry summons to the respondent and listed the inquiry for hearing on 6 July 2023 and the production of a statement of affairs and other records at a hearing listed on 12 June 2023. The summons was issued and served on the respondent. The respondent failed to attend that hearing on 12 June 2023 and produce a statement of affairs and other records. Registrar Trott made orders for those documents to be produced at the means inquiry hearing on 6 July 2023.
On 23 June 2023 the applicant filed a Form 90 warrant for the arrest of the respondent to answer a charge of contempt of court and an affidavit in support. No application for punishment for contempt or statement of charge was filed. The proposed warrant related to the respondent’s failure to attend Court on 12 June 2023. No warrant was issued at that time based on the affidavits and documents then filed in the Court.
The respondent also failed to attend the means inquiry hearing on 6 July 2023. The means inquiry hearing was adjourned to 14 July 2023. The respondent then attended on 14 July 2023 and gave evidence. The hearing was adjourned to 18 August 2023. The respondent again attended and gave evidence on 18 August 2023.
On 18 August 2023 Registrar Trott made orders, amongst others, for the respondent to produce to the Court on or before 15 September 2023 tax returns (of the respondent) for the financial years 2018/19, 2019/20 and 2020/21. The respondent failed to produce the tax returns as ordered by 15 September 2023 or at all.
On 30 October 2023 the applicant applied to relist the means inquiry hearing. It was relisted on 6 December 2023. The respondent failed to attend that hearing. Orders were then made relisting the hearing on 23 January 2024. The respondent again failed to attend that hearing. Orders were then made to relist the hearing on a date to be fixed.
On 12 February 2024 the applicant filed a Form 90 warrant for the arrest of the respondent to answer a charge of contempt and an affidavit and submissions in support. Again, no application for punishment for contempt or statement of charge was filed. Again, no warrant was issued at that time based on the affidavits and documents then filed in the Court. Further, the Court directed the applicant’s attention to the appropriate procedure concerning applications for the Court to issue warrants and for punishment for contempt of Court set out in Div 41 and Div 42 of the Rules and the Enforcement, Endorsement and Contempt Practice Note (GPN-ENF).
On 13 May 2024 Registrar Trott made orders in the following terms:
1.In accordance with order 1 made by Registrar O'Connor on 23 January 2024, the means inquiry is relisted on 11 July 2024 at 10.15am.
2.Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), the applicant may serve a copy of this order on the respondent by all of the following means occurring on or before 27 May 2024:
a.pre-paid ordinary post addressed to the Respondent at 30 Hogarth Street, Cannington, Western Australia, 6107;
b.by scanning and sending by email to the Respondent at the following email addresses:
[email protected]; and [email protected];
c.by handing to any person apparently over the age of sixteen years but, if this is not possible, by leaving in the letterbox or affixing to the front door in a sealed envelope addressed to the Respondent at 30 Hogarth Street, Cannington, Western Australia, 6107; and
d.by sending a text (sms) message to the Respondent on mobile phone number 0433 070 412, that this order has been sent to and left at 30 Hogarth Street, Cannington, Western Australia, 6107.
3.Service in accordance with this order shall be deemed good and sufficient service of this order on the Respondent.
4.The respondent appear in person at the means inquiry hearing on the date provided above at order 1.
5.In accordance with order 4 made by Registrar Trott on 18 August 2023, the respondent is to produce to the Court by no later than 7 days before the means inquiry hearing referred to at order 1 above, all taxation returns for the years ending:
a. 2018/19;
b. 2019/20; and
c. 2020/21.
6.Costs reserved.
The orders were also endorsed with the following penal notice:
PENAL NOTICE
TO: TIANYOU GOU
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
(A)REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
(B)DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
I was satisfied, on the basis of the affidavit evidence filed and relied upon in support of the application, that the order of 13 May 2024 was served on the respondent in accordance with the terms of that order. Further, I was satisfied that the respondent became aware of the terms of that order and that, in effect, he had been ordered to attend Court to give evidence on 11 July 2024 and to produce specific tax returns within 7 days before that date.
The respondent failed to produce the tax returns 7 days before 11 July 2024, or at all, and he also failed to attend the means inquiry listed on 11 July 2024.
Reasons the orders were made and warrant for the arrest was issued
Rule 41.05 of the Rules provides:
41.05 Failure to attend Court in response to subpoena or order
(1) This rule applies if:
(a)the Court has issued a subpoena or made an order that a person attend Court:
(i) to give evidence; or
(ii) to produce any document or thing; or
(iii) to answer a charge of contempt; or
(iv) for any other reason; and
(b)the person fails to attend.
(1A)A party may apply to the Court for the issue of a warrant, in accordance with Form 90:
(a)for the person’s arrest and detention in custody until the person is brought before the Court; and
(b)for the production of the person before the Court.
(1B)The warrant may be issued to one of the following persons:
(a) the Sheriff of the Court;
(b) a Deputy Sheriff of the Court;
(c) the Sheriff of a court of a State or Territory;
(d) a Deputy Sheriff of a court of a State or Territory;
(e) a police officer.
(2)This rule does not limit the power of the Court to punish for contempt.
(3)This rule does not apply to an order or direction of the Court requiring a party to comply with these Rules.
I construed the orders of 18 August 2023 and 13 May 2024 as ordering the respondent to attend Court to produce his tax returns for the 2019, 2020 and 2021 financial years, initially by 15 September 2023, then varied to be at least 7 days before 11 July 2024. In any event, putting to one side whether the order of 18 August 2023, as varied on 13 May 2024, required the respondent to attend Court to produce his tax returns, the original means inquiry summons and orders required the respondent to attend Court and produce his tax returns for the 2019, 2020 and 2021 financial years on 12 June 2023 and 6 July 2023. Thus, on the affidavit evidence before the Court, I was satisfied that the respondent had failed to attend Court to produce the documents as ordered. Further, and in any event, I was satisfied that the respondent had, at least, failed to appear (attend Court to give evidence on a means inquiry) on 11 July 2024.
At this point in time, I need not consider if or the extent to which any of the facts deposed in the affidavits justify the respondent’s arrest to bring him before the Court to answer a charge of contempt of court. No application has been made to punish the respondent for contempt and no statement of charge has been filed. However, in my view, the evidence justified the issue of a warrant (sometimes referred to as a bench warrant) for the respondent’s evident failure to attend Court to give evidence and produce documents in accordance with orders of the Court that he do so.
It follows that orders were made for the issue of a warrant to arrest the respondent and bring him before the Court at a specified time for the purpose of giving effect to the Court’s orders to have the respondent examined and to have him produce documents at a means inquiry.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill. Associate:
Dated: 10 December 2024
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