Phillis v Szenkovics No. Scciv-01-269

PHILLIS v SZENKOVICS
[2001] SASC 452
Full Court: Lander, Williams & Wicks JJ

LANDER J. This is an appeal from the finding that the appellant was guilty of two counts of contempt of Court and from orders made consequent upon those findings.
The appellant and respondent lived in a de facto relationship. That relationship broke down and the respondent commenced proceedings in the District Court for the adjustment of their property interests pursuant to the De Facto Relationships Act 1996 (SA).
The matter came on before a Judge of the District Court and on 3 July 2000 consent orders were made.
The relevant orders for this appeal were:
“1.4the defendant shall cause to be delivered to the plaintiff at the expense of the plaintiff at a time to be agreed between the parties but in any event not more than 14 days from the date of this order all furniture accumulated by the parties during the course of their relationship and presently located at the Woodville Park property or at the Enfield property or at the shack of the defendant’s parents at Sheoak Flats together with all plant and equipment from the business operated by the defendant known as “D.J. Hire” presently located at the Woodville Park property and for the purpose only of enabling the plaintiff to inspect such plant and equipment will arrange for the plaintiff and her solicitor to have admission to the shed on the Woodville Park property on the afternoon of 3 July 2000.
1.5…
1.6…
1.7…
1.8…
1.9pending the delivery to the plaintiff of the furniture and plant and equipment referred to in order 1.4 above the defendant be and is hereby restrained from removing, disposing of or in any encumbering the said furniture and plant and equipment.”
Paragraph 1.4 is imprecise. It does not identify the furniture which the appellant was bound to deliver to the respondent except by reference to “furniture accumulated by the parties during the course of their relationship and presently located at the Woodville Park property or at the Enfield property or at the shack of the defendant’s parents at Sheoak Flats”. Nor does it identify the plant and equipment to be delivered by appellant to the respondent except as “all plant and equipment from the business operated by the defendant known as ‘D.J. Hire’ presently located at the Woodville Park property.”
Orders of the Court should be precise especially where they require parties to do or to refrain from doing an act. Orders of the kind in paragraph 1.4 are inappropriate, in my opinion, especially in litigation of this kind where there is considerable animosity between the appellant and the respondent. Although they are the Court’s orders they were entered at the request of the parties.
The respondent claimed that the appellant failed to comply with paragraph 1.4 and also breached paragraph 1.9.
She applied to another Judge of the District Court for an order pursuant to r 93 of the District Court Rules 1992 directing the Registrar of the District Court to issue a summons directed to the appellant.
On 21 July 2000 a judge of the District Court made an order directing the Registrar to issue a summons directed to the appellant. That summons was in the following form: [AB 29]
“LET DAVID PHILLIS of 1 Gurawa Street, Woomera, SA 5720 attend before the Court on Tuesday the 25th day of July at 12:00 pm at the District Court of South Australia, Sir Samuel Way Building, Victoria Square, Adelaide on the hearing of this summons which is issued by the Registrar of the Court to answer a charge of Contempt of Court in that he did dispose of or fail to provide to Lynn-Marie Szenkovics property as agreed pursuant to the Orders made by His Honour Judge Sulan on the 3^rd July 2000.”
Application was made on 25 July 2000 by the appellant to have the Judge rescind the order for the issue of the Registrar’s summons, but that application was refused. However, on the same day the Judge ordered the respondent to give further and better particulars of the allegations of contempt. The respondent complied with the Judge’s direction and filed further and better particulars on 27 July 2000.
On receipt of those particulars the appellant applied to have the summons dismissed as duplicitous. The respondent responded to that application by seeking to amend the summons and leave was given to the appellant accordingly.
In the end result the body of the charges were as follows: [AB 51]
“LET DAVID PHILLIS of 1 Gurawa Street, Woomera, SA 5720 attend before the Court on Tuesday the 25^th day of July 2000 at 12 noon at the District Court of South Australia, Sir Samuel Way Building, Victoria Square Adelaide on the hearing of this summons which is issued by the Registrar of the Court to answer charges of Contempt of Court in that:
1. Contrary to paragraph 1.4 of the order made by His Honour Judge Sulan on 3 July 2000 in Action No. 1569 of 1999 he failed to provide Lynn-Marie Szenkovics all furniture accumulated by the parties during the course of their relationship and located on 3 July 2000 at the places specified in that paragraph of the said order, particulars of which said are contained in paragraphs 2-9 inclusive of the further and better particulars contempt filed on 28 July 2000.
2. Contrary to paragraph 1.9 of the said Order attempted to dispose of certain of the plant and equipment from the business operated by the defendant known as D.J. Hire, particulars of which contempt are contained in paragraph 10 of the said Further and Better Particulars of Contempt.”
Paragraph 1 of the summons refers only to furniture accumulated by the parties during the course of their relationship. There is no reference to plant and equipment from the business operated by the defendant known as “D.J. Hire”. However, paragraphs 2 and 3 of the particulars were in wider terms:
“(2)The defendant contrary to paragraph 1.4 of the Orders failed to provide to the plaintiff at the agreed time and place the items of furniture accumulated by the parties and located at the Woodville Park property, and further failed to provide to the plaintiff at the agreed time and place the items of plant and equipment from the business operated by the defendant known as ‘D.J. Hire’ being the furniture plant and equipment listed and described in the schedule annexed hereto marked “A”.
(3)The furniture plant and equipment listed and described in Schedule “A”:
3.1 was upon the Woodville Park property at about 5:00pm on 3 July 2000; and
3.2 constituted furniture accumulated by the parties and plant and equipment of the business of “D.J. Hire” within the meaning of paragraph 1.4 of the Orders.”
The particulars identified the furniture, plant and equipment by way of a schedule to the summons, being schedule A. The schedule did not differentiate between furniture and plant and equipment.
The particulars claimed that all of the furniture and plant and equipment in schedule A should have been provided to the respondent in order to comply with the order made by Judge Sulan on 3 July 2000.
The particulars identified furniture, plant and equipment which was provided to the respondent in schedule B.
It was the respondent’s claim in these particulars that she attended at the Woodville property at about 9:00am on 17 July 2000 where the furniture and plant and equipment in schedule B were placed outside the shed.
The particulars claimed that she took a Black and Decker garden hedge trimmer from the goods outside the shed and placed it in her car. Whilst making a telephone call in her car she claimed that the appellant locked the gate to the property thereby preventing her from regaining access and taking possession of any of the property listed in schedule B.
The particulars claimed: [AB 52]
“The plaintiff says that:
‘6.1   The defendant’s failure to deliver or cause to be delivered to her the whole of the goods listed in schedule A; and
6.2    the defendant’s actions on 17 July 2000 in preventing the plaintiff to regain access to the property as set out in paragraph 6.1 of this paragraph; and
6.3    the defendant’s failure to cause any other person to deliver the items listed in schedule ‘A’ and listed in schedule ‘B;’
constituted the breach of paragraph 1.4 of the Orders.”
The respondent then particularised the charges as follows:
“7. The defendant failed contrary to paragraph 1.4 of the Orders to provide to the plaintiff at the agreed time and place the items of furniture accumulated by the parties and located at the Woodville Park property or at the shack of the defendant’s parents of Sheoak Flats listed and described in the schedule hereto marked “C”.
8. The plaintiff says the failure by the defendant to deliver or cause to be delivered to the plaintiff the items described in paragraph 8 (sic) was in breach of paragraph 1.4 of the Orders and the agreement alleged in paragraph 1 of these Particulars for the plaintiff to collect all of the property due to her, being the property described in paragraph 1.4 of the Orders.”
The respondent further claimed in the particulars that the appellant was in breach of paragraph 1.4 of the order:
“9. The defendant failed contrary to paragraph 1.4 of the Orders to provide to the plaintiff for collection by her at the agreed time and place the items of plant and equipment from the business operated by the defendant known as “D.J. Hire” which were located at the Woodville Park property on 3 July 2000, being the goods described in the schedule marked D hereto being the depreciation schedule of the business of “D.J. Hire” as at 30 June 1998.”
Lastly, it was asserted that the appellant was also guilty of a breach of paragraph 1.9 of the orders. In that regard the respondent particularised the claim:
“10.The defendant in breach of paragraph 1.9 of the Orders attempted to sell and thereby dispose of certain of the plant and equipment from the business operated by the defendant known as “D. J. Hire” located at the Woodville Park property on 3 July 2000 in that he:
10.1advertised the same for sale in the publication entitled “Weekly Trading Post” published on 6 July and 13 July 2000 as follows:
“sound equipment, 200 watt x 15in speakers $250 each, 100 watt x 12in twin cone $160 each, all brand new, amplifiers 600B $600, 200B $400, SC4000 $600, lots more to choose from Woodville 0419 813991”.
10.2on Saturday 14 July 2000 agreed to sell to one Malcolm Peters for the sum of $2,400 items described by the defendant as:
2 x JBL cab and speakers
4 x 15 in JBL
2 x shot guns
4 x slots
astro raggie
2 x gobos
1 x aligater
together with cables to suit
10.3on Saturday 14 July 2000 offered to sell to one Malcolm Peters the further sum of $600 per pair RCF 15” W bins for sub bass.”
The appellant was charged with two counts of contempt. One in failing to comply with paragraph 1.4 of the order and one in failing to comply with paragraph 1.9 of the order. However the particulars in respect of paragraph 1.4 of the orders suggest three different breaches. The first in failing to provide the furniture and plant and equipment in schedule A. Secondly in providing the furniture and plant and equipment referred to in Schedule B but then locking the respondent out so that she could not obtain access to that furniture, plant and equipment. Thirdly, in failing to provide the plant and equipment referred to in the depreciation schedule in schedule C.
The charge of contempt in paragraph 1.9 was particularised as an attempt. However, the further particulars suggest a completed sale and therefore something more than an attempt.
In my opinion the appellant was entitled to have the charges of contempt pleaded with more precision and particularity. However, as I understand it no further application was made and the matter proceeded on the charges as I have described them.
No complaint was made on this appeal about the form of the complaint or the particulars given thereunder. No suggestion was made that the particulars rendered the charges duplicitous. No suggestion of any kind was made that the charges and particulars disadvantaged the appellant in the conduct of his defence.
The Trial Judge proceeded in accordance with the procedure provided for in r 93 of the District Court Rules. He required the appellant to plead to the two charges of contempt and the appellant pleaded not guilty to both charges. He directed the respondent to tender evidence in support of the contempt charges.
The matter came on for hearing on 4 September 2000 and a further application was made to dismiss the charges but that application was refused. The respondent then presented her evidence in accordance with the Judge’s direction and the hearing continued over five days.
There is now no relevant distinction between civil and criminal contempts: Witham v Holloway (1995) 183 CLR 525. Any charge of contempt must be proved beyond reasonable doubt. The Trial Judge proceeded accordingly.
There are some matters not in dispute.
Paragraph 1.4 of the order provided for the respondent to inspect “such plant and equipment” at the shed on the Woodville Park property on the afternoon of 3 July 2000.
Although paragraph 1.4 does not so provide it appears that the parties have treated the order as allowing the respondent to also inspect the furniture located at the Woodville Park property.
The order did not provide for inspection of any furniture or plant and equipment at any of the other places mentioned in paragraph 1.4.
In any event the respondent accompanied by her solicitor attended at the Woodville Park property on 3 July 2000 for the purpose of making such inspection. She was provided with entry into the shed at those premises and it was her evidence that she observed the contents of the shed.
There was an exchange of correspondence between the party’s solicitors after 3 July to appoint a time for the delivery of the furniture and plant and equipment referred to in paragraph 1.4 to be delivered to the respondent. The correspondence evidenced the mutual distrust of the parties.
On 11 July 2000 the respondent’s solicitors wrote inter alia [AB 71]:
“Our client has requested that your client make the trailers which form part of the property of D.J. Hire available for collection on the date agreed by the parties. She also requests that your client removes the Bedford van presently located in the shed in order to provide access to the cellar.
As we stated in our previous letter we are anxious to ensure that the property collection proceeds without incident. Therefore, we trust that your client has not removed any property of D.J. Hire, or other items which were viewed on 3 July 2000, from the shed at Marlborough Avenue. In the event that any property is unavailable we would have no choice but to have the matter re-listed in the District Court.”
The respondent’s solicitors replied on the same day:
“In relation to your client’s request that your client make trailers available for collection we are instructed as follows. Our client has concerns that your client’s definition of “plant and equipment” of the business D.J. Hire is incorrect. Our client’s instructions to Richard Hogan on 3 July 2000 were that he would cause to be delivered to your client at your client’s expense “all the plant and equipment from the business operated by our client known as D.J. Hire”. Our client’s instructions are that the plant and equipment from the business D.J. Hire as set out in schedules of depreciation prepared by our client’s accountant that your client has copies of those schedules. Articles that do not form part of the depreciation schedule are not plant and equipment from the business D.J. Hire. Our client instructs us that there are a number of other things in the shed at the Marlborough Avenue property and many of those articles were not articles of plant or equipment from the business D.J. Hire.
We are instructed that most of the plant and equipment from D.J. Hire stipulated as part of the depreciation schedule was disposed of over the 1996/97 and 1997/98 financial years and after cease of trading in 1996. Your client is fully aware of the transactions and has benefited financially from the sale of the plant and equipment.
We enclose for your information a schedule of depreciation detailing the plant and equipment of D.J. Hire as of 30 August 1998.
We are instructed that the trailers are not part of plant and equipment of D.J. Hire and are therefore not available for collection by your client.”
The respondent’s solicitor replied to that letter in the following terms:
“We refer also to the comments raised to your client with respect to what constitutes the “plant and equipment of D.J. Hire”. We point out that our client has not had copies of depreciation schedules prepared by your client’s accountant supplied to her. Our client was not aware of the disposal of plant and equipment of D.J. Hire over the period 1996/98 and she certainly did not benefit financially from these transactions. The sale of “D.J. Hire” property was never raised at any stage of the negotiations in the District Court. Our client therefore expects that all plant and equipment of D.J. Hire will be available for her collection in accordance with the terms of the agreement. Furthermore it was pointed out to our Counsel that the only items in the shed other than those available to our client were “a few gardening implements”. Therefore our client expects that all of the property accumulated by the parties during the relationship will be available for her on Monday 17 July 2000. This property should also include our client’s golf clubs, a lounge suite, sewing machine, tools and an organ/bar.”
The parties agreed that the respondent would attend at the Woodville property on 17 July 2000 at 8:30am.
The arrangements and the correspondence are not in dispute.
However, the appellant’s contention is that the order in paragraph 1.4 was somehow limited by the depreciation schedules which was forwarded by his solicitors to the respondent’s solicitors on 13 July was in dispute.
There can be no doubt that the depreciation schedule was not the cornerstone for the purpose of identifying the plant and equipment which had to be delivered by the appellant to the respondent.
As I have already indicated the plant and equipment which had to be delivered by the appellant to the respondent was that plant and equipment identified in paragraph 1.4.
The plant and equipment was identified by reference to its ownership and its location.
In particular the plant and equipment was not described or limited by reference to any depreciation schedule. The depreciation schedule was only relevant for the limited purpose of deciding whether the plant and equipment at the Woodville Park property was “from the business operated by ‘D.J. Hire’.”
The respondent also gave evidence that she saw an advertisement in the ‘Weekly Trading Post’ published on 13 July 2000.
It was in the following form:
“Band equipment and accessories
Sound equipment, 200 watt X 15 in - speakers
$250 each, 100 watt - X 12 in - twin cone $160
each, all brand new, amplifiers 600B $600, 200B $400, SC 4000 $600,
lots more to choose from Woodville 0419 813 991”
She also said there was an advertisement in the same publication for a Bedford van. She recognised the telephone number as being the appellant’s. She purchased the previous edition of the “Weekly Trading Post” which was published on 6 July 2000 and saw an identical advertisement for that sound equipment. She ascertained by inquiry that the deadline for placing the advertisement in the first publication of 6 July 2000 was 8:00pm on Tuesday 4 July 2000.
The respondent retained an investigating agent, a Mr Malcolm Peters, who, on her instructions, telephoned the appellant pretending to be interested in purchasing sound equipment.
Mr Peters attended at the Woodville Park premises on Sunday 15 July 2000 and had a conversation with the appellant. As a result of that conversation the appellant agreed to sell to Mr Peters various pieces of equipment for the sum of $2,400. Mr Peters paid $100 in cash agreeing to pick up the equipment on Saturday 22 July 2000.

The appellant, so Mr Peter said, also offered to sell other equipment to him for the sum of $600. That equipment was identified on the back of an envelope.
It was the respondent’s evidence that she attended on Monday 17 July and was admitted to the property by the appellant through a side gate. The shed was closed. There were a number of items near the shed. Those items included a Black and Decker hedge trimmer.
It was her evidence that she believed that the items collected near the shed represented a very small proportion of the furniture and plant and equipment which she had viewed on 3 July 2000.
She took the hedge trimmer and returned her car and placed the hedge trimmer in the boot of her car. She got into her car and telephoned her solicitor. Whilst she was doing so she noticed the appellant take her photograph.
After making that telephone call she returned to the gate but found it locked.
It seems to me that if the appellant was to be guilty of these charges of contempt it was necessary to establish in respect of paragraph 1.4 that he failed to deliver to the respondent at her expense:
“1.… all furniture accumulated by the parties during the course of their relationship and presently located at the Woodville Park property or at the Enfield property or at the shack of the defendant’s parents at Sheoak Flats …” or
2.“all plant and equipment from the business operated by the defendant known as “D.J. Hire” presently located at the Woodville Park property and …”
in respect of paragraph 1.9 that he attempted to dispose of either furniture and/or plant and equipment during the period after the order and before the agreed date of delivery.”
The parties agreed that delivery would occur by the appellant leaving all of the furniture and plant and equipment which satisfied the description in paragraph 1.4 of the Court’s order outside the shed at the property at Woodville Park.
In my opinion, having regard to the agreed form of delivery the appellant could only be guilty of a breach of paragraph 1.4 of the order if he then failed to deliver all furniture or all plant and equipment which satisfied the descriptions in paragraph 1.4 of the order, by failing to leave that furniture or plant and equipment outside of the shed.
As can be seen, the respondent in respect of the first charge of contempt rather put her case in three different ways.
The appellant’s case before the Trial Judge was that the phrase “furniture accumulated by the parties during the course of their relationship” was understood by him in a precise way. Moreover, he believed that the plant and equipment referred to in the order was confined to the items listed under the code heading “plant and equipment” on the depreciation schedule which had been supplied by his solicitors to the respondent in their letter of 13 July and which was located within the shed at the Woodville Park property on the date of the order.
A good deal of evidence was directed by both parties to the depreciation schedule, its provenance and its reliability.
In my opinion that evidence was largely irrelevant.
In my opinion the plant and equipment which had to be delivered by the appellant to the respondent was the plant and equipment “from the business operated by the defendant known as D.J. Hire” and presently located at the Woodville Park property.
It may be that the depreciation schedule might have indicated whether property located at the Woodville Park property which might have been described as plant and equipment was from the business operated by the defendant known as D.J. Hire. However the first question to be determined was whether or not there was plant and equipment at the Woodville Park property. The second question was whether or not that was from the business operated by D.J. Hire.
The depreciation schedule was not relevant to the first question. It was relevant to the second question but it was not, as the appellant contended, decisive of that question.
The Trial Judge discussed the party’s evidence in detail including, of course, the appellant’s argument in relation to the conversation and transactions with Mr Peters.
He also discussed the evidence of two other witnesses called by the respondent. Mr Peter Millard, gave evidence of a conversation relating to the purchase of equipment in January 1999. It seems to me that evidence was irrelevant. The appellant’s mother also gave evidence. She said that she and the appellant went to Sheoak Flats to inspect the shack on 23 July 2000.
The Trial Judge then referred to evidence not called by the respondent. The respondent’s counsel opened and said that the respondent would call his accountant, Mrs Gerards, for the purpose of establishing the provenance and reliability of the depreciation schedule. Immediately before the respondent closed his case he indicated that she would not be called because she was too busy to attend. No application was made for an adjournment to call her.
The Trial Judge indicated that, in his opinion, she was a material witness and could have given evidence on a number of matters relating to the depreciation schedule and a valuation of the business.
In my opinion, the depreciation schedule and its reliability was not treated as importantly by the parties as it was by the Trial Judge. In those circumstances I cannot agree with the Trial Judge that the witness’s absence was so important.
The Trial Judge said that there were aspects of the appellant’s case which he found difficult to believe. Those matters related to the furniture which had to be provided pursuant to paragraph 1.4 and the plant and equipment which also had to be provided.
In particular he noted that the appellant had agreed that he had placed furniture and plant and equipment outside the shed which did not conform with his understanding of the orders.
His Honour pointed to evidence given by the appellant which on any understanding was inconsistent with the appellant’s claimed understanding of the order in relation to furniture. He also observed that the respondent had agreed in his evidence there was some plant and equipment located at the Woodville Park property which was not on the depreciation schedule.
There is no doubt that the Trial Judge formed an unfavourable view of the appellant. He concluded that the appellant had tailored his evidence to suit his claimed understanding of the order.
The Judge made express findings. He found that there was furniture located at the Woodville Park property which was not made available to be collected by the respondent on 17 July 2000.
He further found that there were items of plant and equipment that had been purchased by the D.J. Hire business that were within the shed on 3 July 2000 that were not made available to be collected by the respondent. Some of those items had been used in operating the business and some had not.
He found that the appellant had advertised for sale items of plant and equipment which had been purchased by the D.J. Hire business and were within the shed on 3 July 2000 but were not made available to be collected by the plaintiff on 17 July 2000.
He expressly found that the appellant had advertised for sale and agreed to sell or indeed had sold certain items purchased by the D.J. Hire business that were within the shed on 3 July 2000 and that those items were not made available to be collected by the respondent.
He found that the appellant had offered to sell to Mr Peters a pair of speakers that had been purchased by the D.J. Hire business and were not made available to be collected by the plaintiff on 17 July 2000.
Having made those findings his Honour said that the issues remaining to be considered in respect of the two counts of contempt were:
In respect of the first count whether:
“(a)any item of furniture that was at the Woodville Park property on 3 July 2000 and was not made available to the plaintiff on 17 July 2000 was ‘furniture accumulated by the parties during the course of their relationship.’
(b)any item which related to the D.J. Hire business that was at the Woodville Park property on 3 July 2000 and was not made available to the plaintiff was plant and equipment from the business operated by the defendant known as “D.J. Hire.” ”
And in respect of the second count whether:
“(a)any of the equipment the defendant advertised for sale in the Weekly Trading Post on 6 and 13 July 2000 was ‘plant and equipment from the business operated by the defendant known as “D.J. Hire”;
(b)any of the equipment the defendant agreed to sell or did sell to Mr Peters on 15 July 2000 was located at the Woodville Park property on 3 July 2000 and was ‘plant and equipment from business operated by the defendant known as “D.J. Hire”;’
(c)the equipment the defendant offered to sell to Mr Peters on 15 July 2000 was located at the Woodville Park property on 3 July 2000 and was plant and equipment from the business operated by the defendant known as “D.J. Hire.”
In my opinion his Honour took too narrow a view of the items of plant and equipment which had to be delivered by the appellant to the respondent.
His Honour seems to have taken the view that the only plant and equipment that had to be delivered was that which had been used in operating the business.
In my opinion that is too narrow a construction of the order.
In my opinion the expression ‘operated by the defendant’ relates to the business and not to the plant and equipment used in the business. It would follow that any plant and equipment that was owned by D.J. Hire and was located at the Woodville Park property on the relevant date should have been delivered to the appellant by the respondent. The order did not limit the plant and equipment to be delivered to plant and equipment that was used in operating the business. In that regard, in my opinion, the Trial Judge erred in favour of the appellant in his construction of paragraph 1.4 of the order.
That being the case it would follow that on the findings which I have already recited the appellant was guilty of a contempt of both orders. That is because, on those findings, there was plant and equipment of the kind described in paragraph 1.4 of the order not delivered by the appellant to the respondent on 17 July 2000. Moreover, on those findings, the breach of paragraph 1.9 was proved.
However, I do agree with the Trial Judge that the findings which I have already referred were not enough to make out a breach of paragraph 1.4 of the order in respect to the furniture. It was necessary, as his Honour said, to further consider whether any item of furniture was “accumulated by the parties during the course of their relationship”.
His Honour did not make an express finding in relation to that matter notwithstanding that he raised it as an issue. I think it can be inferred from his findings that there was furniture within the shed at the Woodville Park property which had been accumulated by the parties during the relationship which was not delivered by the appellant to the respondent. However there is not a precise finding in that regard. In the end result it does not matter much because as I have said, on the findings to which I have already referred, the appellant’s guilt in relation to both counts had been made out.
The Judge disbelieved the appellant. The Trial Judge found that the appellant concocted his evidence to suit his claimed understanding of the terms of the orders.
In making his final findings the Trial Judge said of the appellant’s evidence at para 132:
“Insofar as these findings are inconsistent with Mr Phillis’s evidence, I reject such of his evidence as being untruthful, and given in an attempt to make his actions conform with his contrived interpretation of the Court’s order.”
In my opinion, having read the evidence given by the appellant the Trial Judge was quite entitled to form the conclusion which he did. The Trial Judge was entitled to find that the appellant’s evidence about his understanding of the orders was false. I think the Trial Judge was also entitled to find that the appellant had concocted his evidence in an effort to avoid the findings of contempt.
The appellant’s evidence was inherently improbable. In many respects it was fanciful. In my opinion, the Trial Judge’s conclusion cannot be criticised. The conclusions arrived at were correct.
Having found the appellant guilty of the two charges of contempt the Judge adjourned the matter for submissions.
His Honour made the following orders:
“1David Phillis be and is hereby sentenced to six calendar months imprisonment.
2Execution of this order be suspended pursuant to r 93.09 of the District Court Rules until 26 July 2001 on condition that before that date the sum of $50,000 is paid to Logan Brown Solicitors for and on account of Ms Lynn Szenkovics, being $25,000 in respect of a sum offered by Mr Phillis to purge the contempt of Court and $25,000 is a lump sum fixed on the basis of solicitor/client costs.
3The order as to the operation of the remainder of the consent orders of His Honour Judge Sulan made on 3 July 2000 be revoked with note of the undertaking of Mr Phillis to continue to comply with that term of his bail which provided that he will not make personal contact with Ms Lynn-Marie Szenkovics until the expiration of the bail term on 26 July 2001.
4The parties may apply for further directions and orders.”
I am not sure what the effect of paragraph 3 of the orders is. I am not sure whether it was contemplated that the order in paragraph 2 discharged the appellant’s obligations in paragraph 1.4 of the orders made by Judge Sulan. If that was the contemplation I am not sure why all of the remainder of the consent orders were revoked. However the parties have not addressed paragraph 3 of those orders.
At the hearing before the Judge on 10 January 2001 the appellant offered to purge his contempt by paying $25,000. That sum, I think, was said to reflect the value of the furniture and plant and equipment which had not been delivered on 17 July 2000.
The further sum of $25,000 was fixed by the Court as representing the respondent’s costs of prosecuting the contempt proceedings.
Section 48 of the District Court Act 1991 (SA) provides:
“(1) The Court may punish a contempt as follows:
(a) it may impose a fine; or
(b)it may commit to prison for a specified term or until the contempt is purged.
(2)This section applies both to contempt committed in the face of the Court and contempts arising from non-compliance with an order, direction, summons or other process of the Court.”
DCR 93.08 provides:
“(1)The Court may punish contempt of Court by committal of the person to prison or fine or both, or by the imposition of a bond to be of good behaviour and such other conditions as may be proper, and by ordering the person to pay the costs of the contempt proceedings.
(2)When the Court imposes a fine it may allow time to pay and in default of payment within that time order that the person be imprisoned for a fixed period.
(3) The Court may on the person making proper tender of apology and amends may recall or reconsider any previous order of the Court punishing him for his contempt.”
On the Judge’s findings the appellant’s failure to comply with the orders was wilful and contumacious.
It was necessary that the appellant be punished and punished severely. The contempt power is exercised to assist in the administration of justice. The administration of justice can only be protected by the Court ensuring that its orders are complied with, and if not complied with are enforced. The primary function therefore of the exercise of the contempt power is to protect the administration of justice.
The Trial Judge could have done that in a number of ways.
There is no doubt that the Trial Judge had the power to commit the appellant to prison. There is also no doubt that he could have fined the appellant and/or ordered the appellant to pay the costs of the contempt proceedings.
The Trial Judge, in my opinion, was entitled to take a serious view of the appellant’s conduct. The appellant’s conduct necessitated a sentence of imprisonment unless the appellant was prepared to purge his contempt.
The appellant offered to purge his contempt by paying $25,000 in satisfaction of compliance with paragraph 1.4 of the consent orders. He also offered to pay the respondent’s costs of the contempt proceedings, which the Judge fixed at $25,000.
The Judge was entitled to accept those offers and, in my opinion, entitled to make the orders he did.
It was argued that the sentence of imprisonment of six months was, in the circumstances, too severe.
In my opinion, that argument must be rejected. The sentence of imprisonment was imposed but suspended upon the appellant purging his contempt. It only came to be served in circumstances where the appellant had been found guilty of a wilful and contumacious breach of the Court’s order and where he had failed to purge that contempt in the manner which he offered. The appellant could have avoided serving the sentence of imprisonment if he had done what he offered to do after he had been found guilty of the two counts of contempt of court.
The appellant did not purge the contempts. He did not pay either sum to the respondent.
In due course, shortly before the time limit to comply with the order for purging the contempts expired, the appellant made an application to this Court for a stay of the Judge’s orders. At that time the appeal had not been set down for hearing. In due course the application for a stay was abandoned and the appellant surrendered himself and went into custody. He is presently in custody on home detention.
After he was committed to gaol, a further application was made by the respondent to the Trial Judge for an order that the appellant pay the costs of the contempt proceedings.
The matter came on before the same District Court Judge who made orders on 17 August 2001.
“1The defendant, David Phillis pay the plaintiffs, (sic) Lynn Szenkovics, costs in the sum of $25,000 being for the costs of the contempt proceedings.
2The defendant has nine months to pay the costs.
3A period of six months imprisonment is fixed in default of payment of the costs.
4The defendant is to pay the plaintiff’s costs of and incidental to the attendance at the hearing of 17 August 2001.”
In my opinion, it was open to the Judge to make an order requiring the appellant to pay the respondent’s costs, notwithstanding that it had been part of the same Judge’s order of 10 January that payment of $25,000 by way of costs would partly purge the appellant’s contempt.
The failure by the appellant to purge his contempt did not mean that the appellant did not remain liable to the respondent in costs. The order of 10 January merely meant that if the appellant purged his contempt by paying $25,000 by way of costs and $25,000 as offered by the appellant, the order for imprisonment would not take effect.
It is my opinion that it was within power and indeed appropriate for the Trial Judge to order the appellant to pay the respondent’s costs.
However, in my opinion, it was not appropriate to make an order delaying payment of those costs and fixing a sentence of imprisonment in default of payment of the costs.
The order was, in fact, no more than an order for costs. If the appellant does not comply with the order for costs, then the respondent may take whatever action she would wish in respect of that. The failure by the appellant to pay costs is not, in my opinion, evidence of contempt on his part.
The order committing the appellant to imprisonment for a further period of six months in default of payment of an ordinary order for costs should not have been made. In those circumstances, during the hearing of the appeal, the Court announced that an order would be made setting aside paragraphs 2 and 3 of the orders of the District Court Judge made on 17 August 2001.

Except for the orders which the Court announced it would make all other aspects of the appeal ought to be dismissed.
I would make the following orders:
1Paragraphs 2 and 3 of the orders of the District Court Judge made on 17 August 2001 are discharged.
2The appeal is otherwise dismissed.
WILLIAMS J. The appellant (the defendant in the action) was found guilty of contempt of court and sentenced to imprisonment by order of a District Court Judge dated 10 January 2001. By a further order dated 17 August 2001 the Judge directed the appellant to pay to the respondent (the plaintiff in the action) a lump sum as her costs of the contempt proceedings and ordered that the appellant be further imprisoned upon default in payment. The appellant appeals against both orders.
The respondent, Ms Szenkovics, brought this action against Mr Phillis in the District Court pursuant to the De Facto Relationships Act 1996. The action was compromised on 3 July 2000 in terms of a consent order whereby the interests of the parties in property were adjusted.
Paragraph 1.4 of this order provided as follows:
“1.4the defendant shall cause to be delivered to the plaintiff at the expense of the plaintiff at a time to be agreed between the parties but in any event not more than 14 days from the date of this order all furniture accumulated by the parties during the course of their relationship and presently located at the Woodville Park property or at the Enfield property or at the shack of the defendant’s parents at Sheoak Flats together with all plant and equipment from the business operated by the defendant known as ‘D.J. Hire’ presently located at the Woodville Park property and for the purpose only of enabling the plaintiff to inspect such plant and equipment will arrange for the plaintiff and her solicitor to have admission to the shed on the Woodville Park property on the afternoon of 3 July 2000.”
Although the order refers in generic terms to “furniture accumulated during the course of the relationship” and “plant and equipment” of a certain business, a dispute remains as to which specific chattels the order applies. The defendant contends that there is electronic equipment in his possession at Woodville which he is not required to surrender to the plaintiff. The plaintiff joins issue thereon and also contends that there is furniture which the defendant has failed to deliver up to her as required by the consent order. In the absence of further agreement, this difference as to the ambit of the order can only be resolved by an inquiry conducted under the authority of the District Court.
A Registrar’s summons was issued at the instance of the plaintiff alleging that the defendant was guilty of contempt of court during July 2000 in the course of carrying the consent order into effect. The matters of complaint were:
1.that the defendant by public advertisement attempted to dispose of certain of the plant and equipment in breach of the order.
2.that the defendant failed to make available to the plaintiff all furniture and plant and equipment described in para 1.4 of the order.
Particulars of the alleged acts of contempt were provided. The chattels which were allegedly the subject of the order were listed as Schedule A to the plaintiff’s particulars. This list was prepared for the purposes of the contempt proceedings and verification of this list depended upon the conflicting oral evidence of the parties, in light of the court’s interpretation of the order. (With the benefit of hindsight, it would have been better if the parties had prepared and agreed such a schedule before the consent order was entered.)
The plaintiff alleges that on 6 and 13 July 2000 the defendant advertised some of the abovementioned chattels for sale in the “Weekly Trading Post” in the following terms:
“sound equipment, 200 watt x 15in speakers $250 each, 100 watt x 12in twin cone $160 each, all brand new, amplifiers 600B $600, 200B $400, SC4000 $600, lots more to choose from Woodville 0419 813991.”
The plaintiff also alleges that on 14 July 2000 the defendant agreed to sell to Mr Peters (an investigator appointed by the plaintiff) for $2,400 some of the advertised equipment, namely-
“2 x JBL cab and speakers

4 x 15 in JBL

2 x shot guns

4 x slots

astro raggie

2 x gobos

1 x aligater

together with cables to suit”.
The plaintiff also alleges that arising out of the advertisements the defendant on 14 July 2000 offered to sell to Mr Peters-
“... RCF 15” W bins for sub bass” (being apparently a description of some sound equipment).
The plaintiff alleges that on 17 July 2000 (in the course of carrying out the terms of settlement) the defendant made available to her a quantity of chattels by leaving them outside a shed at the Woodville Park property (mentioned in the consent order). Schedule B to the plaintiff’s particulars of contempt lists 17 items which allegedly were so made available. The plaintiff alleges that she attended at the premises on this date by prior arrangement and removed a Black & Decker garden hedge trimmer from the assembled goods; she alleges that the defendant then locked the gate to the premises so as to
prevent her from removing the remainder of the property from outside the shed. However, she alleges that the items on List B were of little value (if any) and that the defendant has withheld from her the items of value on Schedule A.
I have considerable difficulty with the case presented by the plaintiff with respect to the transaction on 14 July 2000 between the defendant and the plaintiff’s agent. For the plaintiff personally (or by her agent) to make inquiry as to the identification of the property offered for sale was a useful way of positively confirming her suspicions and proving by reference to the advertisements that the defendant was in breach of the court order by seeking to sell property therein mentioned. However, such an inquiry is to be distinguished from the situation which then developed in which the plaintiff (by her undisclosed agent) formally joined with the defendant in agreeing to deal with property in breach of the court order. The plaintiff cannot now complain about the breach which her agent engineered; the defendant ought not to be punished on that account.
There did not appear to be an issue upon the hearing of the contempt charges that the defendant advertised goods for sale in “The Trading Post” and only made available to the plaintiff for collection those goods included on List B abovementioned. The real question was the extent of the property to which the order applied.
The trial judge recited in his reasons the common ground between the parties but I have had difficulty in identifying the point at which this recitation merges into a statement of the opposing cases presented by the parties.
Extracts from the Judge’s findings and conclusions are as follows:-
“3.After the orders were made the defendant determined that he would construe and apply the order in a way which was contrary to his knowledge of its true meaning. He determined that he would construe and apply the terms of the order so as to provide to the plaintiff as few items as possible, and no items of any value. He did that because his relationship with the plaintiff had deteriorated to such a state that he could not bring himself to deliver to her any item of value. .....
4.He telephoned his accountant the day following the settlement to try and satisfy himself as much as he was able to that he had a good chance of getting away with limiting the order in the way he intended. .....
5.On the same day he determined to advertise for sale those items which had value and which he knew he was bound to deliver to the plaintiff. He intended to sell and dispose of as many as possible of such items before the plaintiff collected what was left. In determining what to advertise for sale he made no reference to the depreciation schedule as at 30 June 1998, [of the business referred to in the order] or to any other depreciation schedule or document.
6.On Tuesday 4 July 2000 and Tuesday 11 July 2000 Mr Phillis caused to be advertised for sale in the Weekly Trading Post items he knew he was bound to deliver to the plaintiff pursuant to paragraph 1.4 of the Court’s order. He did so knowing that selling and disposing of these items would be in breach of paragraph 1.9 of the Court’s order.
............
8.On Saturday 15 July 2000 he agreed to sell and did sell to Mr Peters, and he offered to sell to Mr Peters, equipment which was associated with the DJ Hire business which he knew was the subject of the Court’s order because it was equipment associated with the business within the shed on 3 July 2000. In this respect I exclude from my findings beyond reasonable doubt the astro raggie, 2 x gobos, and 1 x alligator. There is a reasonable possibility that he had brought these items down from Woomera after 3 July 2000. My findings in this regard relate to all other items which he agreed to sell, did sell, or offered to sell to Mr Peters.
9.On Saturday 15 July 2000 Mr Phillis showed Mr Peters all the items he agreed to sell, did sell, and offered to sell to Mr Peters. He told Mr Peters that he wanted to get rid of all the items advertised over the weekend of 15 and 16 July 2000 and that ‘the bitch was coming to collect what shit was left’ on Monday 17 July 2000. In so saying the defendant was referring to the plaintiff.
10.On Sunday 16 July 2000 Mr Phillis spent some time cleaning out the shed at the Woodville Park property. He moved out of the shed all items that were of no value to him. In doing so he made no reference to the depreciation schedule, nor did he give any consideration to whether furniture he placed outside was furniture accumulated by the parties during their relationship. He chose items to put outside for Ms Szenkovics because they had no value to him or were considered by him to be rubbish. He did not choose items because he wanted to be generous to the plaintiff by giving her the opportunity to take items she may want which were not covered by the order. He chose items because he wanted to cause her as much distress as possible. That is why he rang the police before she was due to arrive on the morning of Monday 17 July 2000, and why he expected a ‘breach of the peace’.
11.When he was called upon to explain why he selected items which were placed outside the shed he could not do so in any logical, rational or sensible way. That is because the items were selected because they were valueless and rubbish, rather than by reference to a depreciation schedule or as the result of considering whether they were furniture accumulated by the parties.
12.He did not travel to Sheoak Flats until after proceedings for contempt had been commenced in this court. He untruthfully said that he had gone there before 17 July 2000. He never intended genuinely to try and comply with the Court’s order in respect of any property at Sheoak Flats.”
By way of addendum to these findings and conclusions His Honour said:
“I am satisfied of all of the above matters beyond reasonable doubt. Insofar as these findings are inconsistent with Mr Phillis’ evidence, I reject such of his evidence as being untruthful, and given in an attempt to make his actions conform with his contrived interpretation of the Court’s order.”
His Honour appears to have taken a poor view of Mr Phillis but there are no direct findings as to the matters upon which he has been disbelieved. There are no findings as to credit and reliability of the evidence of the plaintiff but it is implicit in the reasons that His Honour must have accepted the evidence of the plaintiff that exhibit P9 (being Schedule A to the abovementioned particulars) included items which the defendant had deliberately withheld from the plaintiff on 17 July 2000 and items which he had offered for sale in “The Weekly Trading Post” in breach of the court order. The Judge did state (par 122) that
“... I formed the view that [the defendant] was unsuccessfully attempting to make what he actually did accord with what he professed to be his understanding of the Court’s order.”
The plaintiff’s claim (supported by her evidence)was that she was locked out whilst endeavouring to collect her property pursuant to the order. No finding has been made thereon, nor has His Honour identified the extent of the property which has been denied to her. However, it seems on His Honour’s finding that the defendant made no real effort to comply with his obligations in any meaningful sense; that is my paraphrase of paragraphs 10 and 11 of the numbered findings recited above. I note His Honour’s comments in paragraph 12 regarding Sheoak Flats but it is not possible to discern from the reasons whether in fact there was any property at Sheoak Flats which the defendant was required to deliver up.
In my opinion, there is some force in the defendant’s grounds of appeal that the reasons of the trial Judge are insufficient. His Honour does not directly address the alleged lock-out nor does His Honour indicate the extent of the defendant’s default in failing to deliver up property. There is insufficient before this Court upon the appeal to enable the Court properly to gauge the contempt on 17 July 2000 which has been formally established.
The defendant’s action in advertising the property for sale appears to have been contumacious, although the trial Judge did not use that expression. However, as I have already said, it would be wrong to punish the defendant for the transaction on 15 July 2000 to which the plaintiff (by her agent Mr Peters) was a party. The conduct of the defendant on 16 July 2000 in selecting items which were “valueless and rubbish” appears not to have been “unintended or accidental” (as opposed to “wilful”) but that aspect was a matter deserving of a specific finding - particularly in the light of the defendant’s discussions with his accountant as referred to in paragraph 4 of the findings.
The trial Judge, having found the defendant guilty of two charges of contempt (for reasons given on 21 December 2000), made orders on 10 January 2001 as follows:
“1.David Phillis be and is hereby sentenced to six calendar months’ imprisonment.
2.Execution of this order be suspended pursuant to Rule 93.09 of the District Court Rules until 26 July 2001 on condition that before that date the sum of $50,000 is paid to Logan Brown Solicitors for and on account of Ms Lynn Szenkovics, being $25,000 in respect of a sum offered by Mr Phillis to purge the contempt of court and $25,000 is a lump sum fixed on the basis of solicitor/client costs.
3.The order as to the operation of the remainder of the consent orders of His Honour Judge Sulan made on 3 July 2000 be revoked with note of the undertaking by Mr Phillis to continue to comply with that term of his bail which provided that he will not make personal contact with Ms Lynn-Marie Szenkovics until the expiration of the bail term on 26 July 2001.”
The defendant elected not to purge his contempt in terms of paragraph 2 of this order and he is now in custody. He now complains about the findings and the extent of the reasons. He also complains that the punishment awarded, namely six months’ imprisonment, was excessive.
In my opinion, the reasons given are in some respects insufficient as I have already observed. Nevertheless, it is clear that the defendant was guilty of a serious contempt of court in offering goods for sale in terms of his advertisements in “The Weekly Trading Post”. It is unclear as to how the trial Judge may have brought to account in an impermissible way the sale which the plaintiff engineered. It is also unclear as to the extent of the defendant’s default on 17 July 2000 in terms of the amount of property which was withheld. No finding has been made as to whether or not the plaintiff was locked out.
In my opinion, the findings as to the guilt of the defendant of the two charges of contempt of court should not now be disturbed. However, the findings with respect to the events of 16 and 17 July 2000 are insufficient to enable a proper assessment to be made of the penalty. It also seems likely that the trial Judge wrongly brought to account the transaction with the plaintiff’s agent on 15 July 2000 in considering penalty.
The defendant was taken into custody on 26 July 2001; after serving some 7 weeks and 5 days in prison he has since been confined on home detention. In all the circumstances, I consider that justice would be achieved by regarding the time now served in prison or on home detention as sufficient punishment. Having regard to the findings which have been made by the District Court Judge and the way in which he fashioned one sentence in respect of the two contempts (as particularised) there is a risk that the defendant may be exposed to a double jeopardy in sentencing if any aspect of these contempts were referred back to the trial Judge.
I would allow the appeal against the order of 10 January 2001 but only for the purpose of directing that the period of imprisonment be limited to that which has now been served and that the appellant (defendant) be released from custody forthwith.
The defendant also complains about a consequential order as to costs made by the trial Judge on 17 August 2001.
The defendant (as was his right) chose not to purge his contempt by paying the costs or other amount mentioned in paragraph 2 of the order of 10 January 2001. On 17 August 2001 the trial Judge made a supplementary order that the defendant pay to the plaintiff her costs fixed at $25,000 in respect of the contempt proceedings; the order allowed the defendant nine months in which to pay these costs and fixed a further period of imprisonment of six months in default of payment within nine months. It is inappropriate that the defendant be imprisoned for non-payment of costs. The costs to which the plaintiff is entitled are enforceable by civil process and the plaintiff should be at liberty to proceed forthwith with the recovery of that amount. Accordingly, the orders providing for time to pay and for a default period of imprisonment (as contained in paragraphs 2 and 3 of the order of 17 August 2001) should be discharged as this court intimated on 5 October 2001 during the course of the hearing of the appeal.
I note that despite Mr Phillis’ immediate release from prison he still remains liable to satisfy the consent order made on 3 July 2000. However, as the next step, it will be necessary for the plaintiff to seek an inquiry in the District Court to identify the specific property to which the order applies. Proceedings under judgments and orders are regulated by rule 85; the direction of an enquiry at any stage is authorised by rule 71.3. Daniell’s Chancery Practice (8^th ed) at 686-687 identifies the jurisdiction of the Court to direct an enquiry after judgment with respect to an issue as to the implementation of an order. Daniell explains that all orders carry with them in gremio liberty to apply if necessary to the Court but only with respect to matters arising in the carrying of the judgment into effect.
I propose the following formal orders:
1.The appeal against the District Court order dated 10 January 2001 be allowed but only for the purpose of setting aside paragraph 1 of that order and substituting in lieu thereof an order that David Phillis be and is hereby sentenced to a period of imprisonment of 148 days, such sentence to run from and including 26 July 2001 the date upon which the defendant was taken into custody and to include time spent in confinement on home detention during the period of imprisonment specified in this paragraph.
2.The appeal against the District Court order dated 17 August 2001 be allowed for the purposes of discharging paragraphs 2 and 3 thereof.
WICKS J I agree with the orders proposed by Williams J for the reasons he gives. I have nothing to add.

[2001] SASC 452

20 December 2001