JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PERPETUAL TRUSTEES VICTORIA LTD -v- ALLEN [2012] WASC 258 (S) CORAM : BEECH J HEARD : ON THE PAPERS DELIVERED : 24 AUGUST 2012 FILE NO/S : CIV 1030 of 2011 BETWEEN : PERPETUAL TRUSTEES VICTORIA LTD Plaintiff
AND
BRETT ROBERT ALLEN
KERRY ANNE ALLEN
Defendants
Catchwords:
Courts and judges - Contempt of court - Contempt by breaching order for possession of property - Appropriate punishment - Turns on own facts
Legislation:
Nil
Result:
Fine of $500, suspended for six months
Other applications dismissed
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Category: B
Representation:
Counsel:
Plaintiff : No appearance
First-named First Defendant : No appearance
Second-named First Defendant : No appearance
Solicitors:
Plaintiff : Jackson McDonald
First-named First Defendant : No appearance
Second-named First Defendant : In person
Case(s) referred to in judgment(s):Allbeury v Corruption and Crime Commission [2012] WASCA 84Barton v The Queen (1980) 147 CLR 75Dental Board of Australia v Traianou [2011] WASC 293Hanna v Director of Public Prosecutions (NSW) [2005] NSWSC 134; (2005) 62 NSWLR 373Maxwell v The Queen (1996) 184 CLR 501
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Introduction 1 On 20 July 2012, I published reasons explaining my conclusion that I was satisfied beyond reasonable doubt that Ms Allen committed the contempt alleged against her. I directed that the parties file submissions as to penalty. The plaintiff (Perpetual) has done so. By an email dated 6 August 2012, Ms Allen indicated that she maintained that she was not guilty of contempt and declined to make submissions in relation to penalty.
2 Ms Allen has also made some applications. These reasons deal also with those applications.
Contempt of court: punishment; legal principles
3 In Dental Board of Australia v Traianou [2011] WASC 293 [39] - [45], I set out some principles relevant to the determination of the appropriate punishment after a finding of contempt has been made. Subsequently, in Allbeury v Corruption and Crime Commission [2012] WASCA 84 [215] - [218], the Court of Appeal set out some general principles relating to punishment for contempt. The principles may be stated in the following way:
(1) the determination of the appropriate punishment for contempt is entirely a matter within the discretion of the court. There is no maximum penalty applicable; (2) s 6 of the Sentencing Act 1995 (WA) does not apply to the punishment of a person for contempt of court. However, it is established by authority that what is said in that section provides a sound guide in determining the appropriate punishment for contempt. Thus for contempt, as in other spheres, imprisonment is the sentence of last resort;
(3) the authorities establish that matters to be taken into account in considering the punishment for contempt of court by disobeying an order of the court include:
(Page 4) (d) whether the contemnor has received or tried to receive a benefit from the contempt; (e) whether there has been any expression of genuine contrition by the contemnor;
(f) the character and antecedents of the contemnor;
(g) the contemnor's personal circumstances;
(h) personal and general deterrence; and
(i) the need for denunciation of contemptuous conduct;
(4) the generally applicable legislative provisions about parole do not apply to a sentence of imprisonment for contempt. Thus, a contemnor serves the full term of any sentence imposed; (5) not all deliberate or wilful breaches of a court order will attract a custodial sentence, but the administration of justice requires that a very serious view be taken of deliberate contravention of the orders of the court; and
(6) the breadth of the circumstances giving rise to contempt mean there is no tariff.
Perpetual's submissions 4 Perpetual submits that:
(a) subject to one matter, the contempt should be regarded as being at the lower end of the scale, given that Ms Allen did not herself live in the property so that she gained no benefit from her conduct, and that Perpetual's rights were ultimately not affected in any substantial way; (b) her contempt should be regarded as wilful, rather than contumacious;
(c) Ms Allen has not expressed remorse for her conduct;
(d) the qualification in relation to par (a) is the incident on 11 April 2012 involving violence;
(e) specific and general deterrence are important considerations;
(Page 5) (f) the court should order Ms Allen to carry out community service, or impose a short term of imprisonment, in either case suspended for a period.
The appropriate punishment 5 I accept Perpetual's submission that this contempt should be viewed as being at the lower end of the scale. Ms Allen did not reside at the property. Her conduct was founded on her misconceived view that, notwithstanding the orders of 28 June 2011 and 21 February 2012 (and the dismissal of her appeal), she was, somehow, nevertheless entitled to possession of the property, at least pending some application or applications that she contemplated, including an application to the High Court. Her contempt was wilful, not contumacious. Ms Allen has not gained any benefit from her misguided attempts to hinder the enforcement of the orders of the court.
6 Nevertheless, deterrence, both specifically of Ms Allen, and generally of others, must be given weight in determining the appropriate punishment for this contempt.
7 In my view, the imposition of a fine reflects an appropriate balancing of the various considerations. Perpetual's submissions invite a disposition other than a fine, on the basis that, 'to the best of [Perpetual's] knowledge', Ms Allen is not in a position to meet a fine. There is very little information before me about Ms Allen's financial position. While there is room for doubt about Ms Allen's ability to pay a fine, I do not think that the imposition of a fine can be said to be futile.
8 In my view, a fine of $500 should be imposed, the operation of which is suspended for six months. This means that Ms Allen will not have to pay the fine unless she commits a further contempt in the next six months. The suspension of the fine will provide Ms Allen with an incentive to ensure that she does not act in breach of the court's orders again.
9 For those reasons, I impose a fine of $500, suspended for six months.
Ms Allen's applications
10 On 11 July 2012, Ms Allen filed:
(Page 6)11 Also on 11 July 2012, by letter of that date, Ms Allen sought leave to commence an action that was said to be against Perpetual Trustees, Jackson McDonald and others. 12 On 20 July 2012, I delivered my reasons on the contempt application. In the course of that hearing, Ms Allen referred to her applications. Ms Allen indicated that she would be content for those applications to be dealt with by an exchange of written submissions, and then determined on the papers (ts 138 - 140).
The merits of Ms Allen's applications
13 First, Ms Allen applies for a stay of this action. There is no occasion for, or purpose to be served by, a stay of the action. Final orders have been made in the action. Perpetual has made an application for contempt of those orders in this action. That application has been dealt with. Nothing remains to be done in relation to this action.
14 For similar reasons, Ms Allen's application to consolidate or join this action with CIV 1700 of 2012 also fails. It is not appropriate to join this action, which is completed, with any other action. Further, I note that final orders have also been made in action CIV 1700 of 2012.
15 There is nothing in the circumstances before me to justify any of the other orders sought by Ms Allen. More specifically, there is nothing that would sustain an order preventing dealings on Ms Allen's property, or the taking of any further action against her.
16 Thirdly, Ms Allen seeks leave to commence proceedings against Perpetual, Jackson McDonald and others. Ms Allen seeks leave to file a document entitled 'Writ of Summons Motion for Judgement in Favour of the Plaintiffs …'. It seeks orders for:
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17 The writ of summons then states that it is:
Pursuant to Abuse of Judicial Process by perverting the course of Justice
AND
Contempt of Court of the Defendants by imprisonment Pursuant to Breach of Magna Carta Charter; Property Act; Human Rights Act; Inhumane Act; Corporations Act; Constitutional Law; Breach of Contract; Defamation; Privacy Act; Disability Discrimination Act; Australian Consumer Law and
Universal Declaration of Human Rights Articles 1 - 12/30
18 Attached to the writ is a document entitled 'Plaintiffs outline of Submissions In support of Application for committal of Defendants for Contempt of Court by imprisonment'. Those submissions make wide-ranging factual assertions and allegations of various forms of misconduct. The general tenor of Ms Allen's complaint is that she has been wronged by the manner in which Perpetual, its solicitors and its agents have sought to exercise Perpetual's rights under mortgages granted by Ms Allen. Various other documents were also attached, including copies of the Universal Declaration of Human Rights, some statutory provisions and other written law, and copies of some decided cases. 19 On 17 July 2012, Ms Allen sought to file these documents. The Principal Registrar exercised the power under O 67 r 5 of the Rules of the Supreme Court1971 (WA) to refuse to issue the writ and accept the document for filing without leave of a judge. Accordingly, Ms Allen seeks leave to file the documents and to issue the writ.
20 On 1 August 2012, Ms Allen provided a document with a heading 'Names of accused', which I take to be the list referred to in the writ.
21 Order 67 r 5 provides as follows:
5. Abuse of process etc., procedure in case of
(Page 8)22 On 20 July 2012, I made orders for Perpetual to file submissions on Ms Allen's application. Ms Allen did not oppose those orders. In any event, my reasons for refusing Ms Allen's application are not influenced by Perpetual's submissions. 23 In my view, on a proper construction of O 67 r 5, a judge or master should refuse leave to file or issue only if satisfied that the issuing of the proposed writ or filing of the proper document would be an abuse of process or a frivolous or vexatious proceeding. The notions of abuse of process and frivolous or vexatious also appear in O 16 r 1 and O 20 r 19. I consider those notions have the same meaning in the context of O 67 r 5. An action that is plainly unsustainable is frivolous or an abuse of process. The caution attendant upon the exercise of the power of summary dismissal in O 16 r 1 and O 20 r 19 applies with no less force in the context of O 67 r 5.
24 For the reasons that follow, I am satisfied that the proposed writ would be an abuse of process or a frivolous or vexatious proceeding.
25 The claim for a 'certificate of referral' to the Commonwealth DPP for criminal charges by indictment is misconceived. As a matter of form, there is no such thing. As a matter of substance, the court does not involve itself in any decision to prosecute. See, for example, Barton v The Queen(1980) 147 CLR 75, 94 - 95, 109 - 111; Maxwell v The Queen (1996) 184 CLR 501, 512, 534; Hanna v Director of Public Prosecutions (NSW) [2005] NSWSC 134; (2005) 62 NSWLR 373.
26 Insofar as what is contemplated is a charge of contempt, there is no apparent basis for involvement on the part of the Commonwealth DPP. Moreover, although I am unable to understand or follow all of what is said in Ms Allen's papers, insofar as I understand the material it does not reveal any arguable basis for an allegation of contempt of court by Perpetual, its solicitors Jackson Macdonald, or by any of the persons or companies against whom Ms Allen alleges contempt.
27 The heading of Ms Allen's submissions, and par 1 of those submissions, suggest that the substance of what is claimed is that the proposed defendants have committed a contempt of court. Insofar as the
(Page 9) claim for 'quantum damages and final judgment' is based on the alleged contempt, it is unsustainable for the reasons given in the preceding paragraph. It is otherwise unclear what claims or causes of action might found the claim for damages and final judgment. Insofar as that may be said to be founded on what is listed immediately below the orders sought being the matters, set out at [17] of these reasons, the claims are, so far as I can understand them, misconceived in law or unsupported by any material in Ms Allen's supporting papers.
28 Some of the Acts mentioned do not exist (Human Rights Act; Inhumane Act). Other Acts are named without any identification of what aspect of the Act is relevant and how that gives rise to any claim. How 'constitutional law' creates any claim is not apparent. 29 The proposed writ does not have a concise statement of the nature of the claim made, as required by O 6 r 1.
30 For these reasons, I refuse leave for Ms Allen to issue the writ which she attempted to file and issue on 17 July 2012
Conclusion
31 For the reasons given, I: