Potato Marketing Corporation of Western Australia v Galati [No 2]
[2016] WASC 315
•23 AUGUST 2016
POTATO MARKETING CORPORATION OF WESTERN AUSTRALIA -v- GALATI [No 2] [2016] WASC 315
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 315 | |
| Case No: | CIV:2545/2015 | 23 AUGUST 2016 | |
| Coram: | TOTTLE J | 23/08/16 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application to strike out notice of motion dismissed Motion to amend allowed | ||
| B | |||
| PDF Version |
| Parties: | POTATO MARKETING CORPORATION OF WESTERN AUSTRALIA ANTONIO GALATI GALATI NOMINEES PTY LTD |
Catchwords: | Practice and procedure application to amend notice of motion plaintiff applies to amend notice of motion for which it applied for orders that the first and second defendant be found guilty of contempt of court Practice and procedure application to strike out notice of motion defendants apply to strike out plaintiff notice of motion for orders that the defendants are guilty of contempt of court on the grounds that it lacked the required particularity Matthews v ASIC [2009] NSWCA 155 Harmsworth v Harmsworth (1987) 1 WLR 1683E Would a reasonable person in the positon of the alleged contemnor be in any doubt as to the substances of the allegations particulars of amended notice of motion found to be adequate application to strike out dismissed application to amend granted |
Legislation: | Civil Judgments Enforcement Act 2004 (WA) |
Case References: | Chiltern District Council v Keane [1985] 1 WLR 619 Harmsworth v Harmsworth (1987) 1 WLR 1683E Potato Marketing Corporation of Western Australia v Galati [2015] WASC 430 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ANTONIO GALATI
First Defendant
GALATI NOMINEES PTY LTD
Second Defendant
Catchwords:
Practice and procedure - application to amend notice of motion - plaintiff applies to amend notice of motion for which it applied for orders that the first and second defendant be found guilty of contempt of court
Practice and procedure - application to strike out notice of motion - defendants apply to strike out plaintiff notice of motion for orders that the defendants are guilty of contempt of court on the grounds that it lacked the required particularity - Matthews v ASIC [2009] NSWCA 155 - Harmsworth v Harmsworth (1987) 1 WLR 1683E - Would a reasonable person in the positon of the alleged contemnor be in any doubt as to the substances of the allegations - particulars of amended notice of motion found to be adequate - application to strike out dismissed - application to amend granted
Legislation:
Civil Judgments Enforcement Act 2004 (WA)
Result:
Application to strike out notice of motion dismissed
Motion to amend allowed
Category: B
Representation:
Counsel:
Plaintiff : Ms G A Archer SC, Mr P D Lochore & Ms F Vernon
First Defendant : Mr J C Giles
Second Defendant : Mr J C Giles
Solicitors:
Plaintiff : Kott Gunning
First Defendant : Hotchkin Hanly Lawyers
Second Defendant : Hotchkin Hanly Lawyers
Case(s) referred to in judgment(s):
Chiltern District Council v Keane [1985] 1 WLR 619
Harmsworth v Harmsworth (1987) 1 WLR 1683E
Potato Marketing Corporation of Western Australia v Galati [2015] WASC 430
- TOTTLE J:
(This judgment was delivered extemporaneously on 23 August 2016 and has been edited from the transcript.)
1 These reasons deal with an application by the plaintiff to amend its notice of motion dated 1 June 2016 by which it applied for orders that the first defendant and the second defendant be found guilty of contempt of court by reason of the second defendant's alleged disobedience of an order made by me on 11 November 2015, following my decision in Potato Marketing Corporation of Western Australia v Galati [2015] WASC 430, and they also deal with an application by the defendants to strike out that notice of motion on the grounds that it lacked the required particularity.
2 The defendants accept that if they are unsuccessful in their opposition to the application to amend the notice of motion application to strike out must necessarily fail. The factual background to the order of 11 November 2015 is set out in the reasons for decision at [2] - [5] as follows:
3 By a chamber summons issued on 30 September 2015 the Corporation applied for an interlocutory injunction restraining the second defendant (Galati Nominees) from selling potatoes grown by the first defendant (Mr Galati) and delivered to it in excess of the quantity of potatoes that Mr Galati is entitled to grow in accordance with the area licences and certificates of Domestic Market Entitlement (DME) allocated to him by the Corporation pursuant to the provisions of the Act. The relevant licences and certificates of DME are those granted in respect of the periods between 1 July 2015 and 3 October 2015 (Pool 1 period) and 4 October and 2 January 2016 (Pool 2 period).
4 Mr Galati is a director of Galati Nominees. Galati Nominees is authorised to take delivery of potatoes in Western Australia in its capacity as an agent appointed by the Corporation for that purpose.
5 To provide some context for the application for injunctive relief I record:
• The practical consequence of the injunction sought by the Corporation is that Galati Nominees will be prevented from selling more than 1,918 tonnes of the potatoes grown by Mr Galati in the Pool 1 period and more than 1,049 tonnes of the potatoes grown by him in the Pool 2 period.
• DMEs were issued to 23 growers in the Pool 1 period and 25 growers in the Pool 2 period and the aggregate of the quantities of potatoes specified in the DMEs for those periods was 12,217 and 13,273 respectively.
• The Corporation estimates that Mr Galati harvested at least 3,008 tonnes of potatoes in the Pool 1 period. It is not clear on the evidence how many of these tonnes have been delivered to Galati Nominees and sold by it.
• Mr Galati admits that he has planted potatoes which, if successfully harvested, will see him deliver to Galati Nominees potatoes in excess of his DME for the Pool 2 period.
• The Corporation estimates that Mr Galati will harvest 3,635 tonnes of potatoes to Galati Nominees in the Pool 2 period.
6 Galati Nominees' position is that, unless restrained by an injunction, it will sell all the potatoes delivered to it by Mr Galati in the Pool 2 period.
7 The terms of the order made on 11 November 2015 are as follows:
UPON THE APPLICATION of the Plaintiff by Chamber Summons dated 30 September 2015 AND UPON HEARING Ms P Cahill SC and Ms F Vernon of Counsel for the Plaintiff and Mr D H Solomon and Ms L Retallack of Counsel for the Defendants IT IS ORDERED THAT:
1. Upon the undertaking of the Plaintiff to pay any party restrained or affected by the restraints imposed by this interlocutory injunction, or any interim continuation thereof, such compensation as the Court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the Court or in accordance with such directions as the Court may make and to be paid in such manner as the Court may direct:
(a) Until further order the Second Defendant is restrained from, either directly or indirectly, selling ware potatoes in excess of the domestic market entitlement of a total of 1,918 tonnes allocated by the Plaintiff to the First Defendant pursuant to section 28 of the Marketing of Potatoes Act 1946 (WA) for the period from 1 July 2015 to 3 October 2015;
(b) Until further order the Second Defendant is restrained from, either directly or indirectly, selling ware potatoes in excess of the domestic market entitlement of a total of 1,049 tonnes allocated by the Plaintiff to the First Defendant pursuant to section 28 of the Marketing of Potatoes Act 1946 (WA) for the period from 4 October 2015 to 2 January 2016.
2. Costs of the application be reserved to the trial judge.
3. There be liberty to apply.
4. The matter be admitted into the CMC List.
5. The matter be adjourned to 9.45am on 13 November 2015 for directions.
8 The terms of the plaintiff's proposed amended notice of motion are as follows:
1. the second defendant be found guilty of contempt;
2. the second defendant be fined for that contempt;
3. the first defendant Mr Antonino Galati (being the director of the second defendant) be found guilty of contempt;
4. the first defendant be fined for that contempt; and
5. the defendants pay the plaintiff's costs of the application, to be taxed if not agreed.
The facts by which the plaintiff contends that the second defendant and Mr Antonio Galati are in contempt of court are set out in the attachedSchedule of Particulars of ContemptStatement of Charge.
It is contended by the plaintiff that the second defendant and Mr Antonino Galati ("Mr Galati") have committed a contempt of court as a result of the following:
1. On 11 November 2015, in these proceedings being Supreme Court action CIV 2545 of 2015, the Honourable Justice Tottle made the following order ("the Order"):
"Until further order the Second Defendant is restrained from, either directly or indirectly, selling ware potatoes in excess of the domestic market entitlement of a total of 1,049 tonnes allocated by the Plaintiff to the First Defendant pursuant to section 28 of the Marketing of Potatoes Act 1946 (WA) for the period from 4 October 2015 to 2 January 2016."
2. Mr Galati and the second defendant's solicitors (at the time), Solomon Brothers, were present in the Court on 11 November 2015 when the Order was made.
3. Mr Galati is, and was at all material times, a director of the second defendant.
4. The Order was served personally on Mr Galati on 24 November 2015, which also constitutes service upon the second defendant.
5. In breach of the Order, the second defendant sold more than 1,049 tonnes of ware potatoes received from the first defendant between 4 October 2015 and 2 January 2016. (The period from and including 4 October 2015 to 2 January 2016 will be referred to as "pool2").
9 The gravamen of the contempt which is alleged against the defendants is that the second defendant sold more than 1,049 tonnes of ware potatoes, termed the pool 2 potatoes, in the period 4 October 2015 to 2 January 2016, contrary to the terms of the order.
10 It is alleged that the first defendant is guilty of the same contempt committed by the second defendant by reason of the provisions of s 98(3) of the Civil Judgments Enforcement Act 2004 (WA), which provides:
(3) If a corporation disobeys a judgment to which this Division applies, the corporation is guilty of a contempt of court, and each officer of the corporation is also guilty of a contempt of court unless he or she satisfies the court -
(a) that the corporation's disobedience occurred without the officer’s consent or connivance; and
(b) that the officer took all the measures to ensure the corporation obeyed the judgment that he or she could reasonably be expected to have taken having regard to the officer’s functions and to all the circumstances.
11 The defendants contend that the notice of motion in its original form and in its proposed amended form lacks the required level of particularity because it does not identify the sale or sales relied upon by the plaintiff as constituting the alleged breach of the order by reference to purchaser, date and type and amount of potatoes sold.
12 Paragraphs 15 to 18 of the written submissions filed on behalf of the defendants set out the reasons why the courts have held that specificity is required in statements of charge in contempt motions and the reasons why the statements of charge in its proposed amended form in this case is defective:
15. The reasons for requiring specificity are well known and numerous. They include:
a. so that the allegations may be promptly and accurately met and so that such matters will not be lightly raised: Carew v Carew Corporation Pty Ltd (unreported, 23 April 1993, Supreme Court of Western Australia, Full Court, BC9301051); Matthews v ASIC [2009] NSWCA 155 at [40] ff approving Carew Corporation (and also Sir John Donaldson MR's judgment in Chiltern District Council);
b. it is an essential that not a single piece of evidence should be admitted against a defendant unless they have a right to resist its reception upon the ground of irrelevance, at which time the Court has the right and duty to rule upon such an objection: see Johnson v Miller, Dixon J at 487 and Evatt J at 497-498.
c. the defendant cannot fairly defend themselves unless they know the precise acts or omissions complained of. Amongst other things, the lack of specificity tends against a positive defence, including a defence of mistake or excuse;
d. without specificity, there is a danger of the hearing becoming an administrative commission of inquiry into whether, in all the circumstances, some offence was committed (a course warned against by Evatt J in Johnson v Miller);
e. the defendant cannot plead unless he, she or it knows what is the precise charge being preferred against them (see Johnson v Miller, Evatt J at 497-498). If they choose, a defendant has a right to admit the charge and to make a sensible plea in mitigation and the Court must know the offence for which the defendant is to be punished;
f. the Court must be able to determine, at the conclusion of the complainant's case, if called on by the defendant, whether there is a case to answer; and
g. the rules of autrefois convict and autrefois acquit apply to proceedings for contempt: Jelson (Estates) Ltd v Harvey [1984] 1 All ER 12. Without the requisite specificity, the Court is not able to determine, on a further prosecution, whether the new charge is one to which the defendant has already been dealt with (which also invokes the common law doctrine of uncertainty of conviction).
16. The failing of the charge and particulars is that the particular act, matter or thing (or more likely the acts, matters or things) said to constitute the breach of the order is not identified: Johnson v Miller at 477-8; Chiltern District Council at 622. The particular sale (or sales) are not identified. The defendants are deprived of the opportunity of denying the alleged sale, pursuing a positive defence, confessing and avoiding or pleading guilty with the corresponding advantage on sentence. Of course, more likely the charge is actually duplex and perhaps alleges numerous breaches.
17. Further, the Minute of Proposed Amended Notice of Motion (Proposed Amended Motion) suggests that the plaintiff alleges that its evidence reveals that the first defendant sold up to approximately 1,675 tonnes and that more than one offence was committed. This reveals a defect sometimes described as 'latent duplicity' or 'latent ambiguity': see Johnson v Miller and S v R (1989) 168 CLR 266, and prevents a fair trial.
18. The rationale behind the obligation to provide specificity is all the more compelling in circumstances where the plaintiff also seeks to invoke section 98(3) of the Civil Judgments Enforcement Act 2004 (WA) to prosecute the first defendant. Under section 98(3), if a corporation is found guilty of a contempt, each officer of the corporation is also guilty of a contempt unless he or she satisfies the Court that disobedience occurred without their consent or contrivance and they took all the reasonable measures to ensure the corporation obeyed the judgment. In the present case, the plaintiff seeks to obtain a conviction against the second defendant and place the onus on the first defendant to satisfy the Court of the matters required in section 98(3) in circumstances where no particular acts or omissions constituting the alleged contempt are identified.
The plaintiff's submissions
13 In its written submissions, the plaintiff responds to the defendants' complaints at [32] to [35] as follows.
32. The Defendants Submissions at [15] set out a list of reasons why specificity is required. None of those reasons would lead to a conclusion that the defendants need to know more about the allegation than the Motion provides.
(a) The case against the defendants is an allegation of a total volume of sales, exceeding 1,049 tonnes. This is sufficient to permit questions of relevance to be determined.
(b) Further, details as to the purchaser, date and type and amount of potatoes sold on any one occasion are purely within the knowledge of the second defendant. There is no rule of law which provides that contempt cannot be alleged if the defendant would like you to prove it by means of information that you do not have.
(c) The defendants assert that the lack of specificity 'tends against a positive defence, including a defence of mistake or excuse'. Given the elements of a charge of contempt, it is difficult to conceive of a defence that could be available. It seems unlikely that the second defendant could assert that it sold the pool 2 potatoes involuntarily. It also seems unlikely that the second defendant would assert that it sold the pool 2 potatoes by mistake. Even if it did, this would not be a defence to the contempt, and could only be relevant to the alleged aggravating feature of contumaciousness. In any event, the defendants are not impeded in asserting mistake by the way in which the Motion is cast. The PMC says that the total sales exceeded 1,049 tonnes. It is open to the defendants to assert that some of that volume came from sales that were made by mistake.
(d) It is open to the defendants to plead to the charge and make a sensible plea in mitigation. They know that the allegation is that the second defendant sold more than 1,049 tonnes of the pool 2 potatoes, and they know whether or not it did that.
(e) Similarly, at the conclusion of the PMC's case, the court will be able to determine whether there is a case to answer.
(f) Finally, the last reason identified by the defendants nicely illustrates that the charge is sufficiently identified. The last reason, in the Defendants' Submissions at [15(g)], is that '[w]ithout the requisite specificity, the Court is not able to determine, on a further prosecution, whether the new charge is one to which the defendant has already been dealt with'. At the conclusion of these proceedings for contempt, the defendants will be found guilty or not guilty of selling more than 1,049 tonnes of the pool 2 potatoes. Any further action for breach of the Order would be self-evidently met by a plea of autrefois convict, autrefois acquit or estoppel, depending on the outcome of these proceedings. It would be completely clear that the defendant had already been dealt with in relation to a breach of the Order. This is not a case like Johnson, where a single offence was alleged, in relation to a single person seen to be coming out of the premises, but which could have been proved in respect of any of 30 such persons. The Motion alleges that the second defendant sold more than 1,049 tonnes.
33. Even in cases where an order could be breached in multiple ways (unlike in this case), the charge need only be such as to enable the defendant to know what breach is alleged. An example is provided by a case cited in the defendants' case of Matthews v ASIC (Matthews), Bovis Lend Lease Pty Ltd v CFMEU [2009] FCA 194; (2009) 254 ALR 306 (Bovis). In Bovis, the court was considering an allegation of a breach of an order restraining the union from obstructing people from entering a hospital. It was alleged that the union had maintained an obstruction by the parking of vehicles (only some of which were identified) and putting up tents at the entrance. This was held to be sufficient to convey the gist, and that details such as who erected the obstacles were matter of evidence - see the order at [2], the charge in relation to paragraph 1 of the order at [19] and the discussion at [61] - [65].
34. As noted above, the defendants assert that the Motion must identify the sales relied upon by reference to the purchaser, date and type and amount of potatoes sold.
35. The PMC does not rely upon any individual sales. The PMC alleges a single breach, of selling more than a particular amount. The Order only 'permitted of one breach', namely the selling of more than 1,049 tonnes. All that is required is to say that there was a selling of more than 1,049 tonnes.
Relevant principles
14 I turn now to the legal principles which guide my decision in this matter. In approaching the adequacy of the particulars in this case I am guided by the observations of Sir John Donaldson, the Master of the Rolls, in Chiltern District Council v Keane [1985] 1 WLR 619 (with who's observations Parker and Browne-Wilkinson LLJ agreed). The relevant passage was cited both by the plaintiff and by the defendants and it appears at page 622 of the report at A to E:
The notice of motion was personally served on Mr Keane, but it only stated the grounds of the application to commit in general terms. It recited the undertaking and the injunction, and then alleged that there had been a breach. This, on the authorities, is not sufficient. It has been said in many cases that what is required is that the person alleged to be in contempt shall know, with sufficient particularity to enable him to defend himself, what exactly he is said to have done or omitted to do which constitutes a contempt of court.
The particular undertakings and injunctions in this case cover a wide range of activities. Mr Keane was entitled to know whether it was said by the council that he was in breach of every single requirement of those orders or only some, and if so which, of them and the notice failed to give him that information.
Every notice of application to commit must be looked at against its own background. The test, as I have said, is: does it give the person alleged to be in contempt enough information to enable him to meet the charge? If, for example, a defendant is subject to an injunction to leave a stated house not later than a particular time on a particular day, then it would be sufficient to say that he had failed to comply with that order, because it only permits of one breach, namely failure to leave the house by the time stated. But where the order is not in such a simple form and it is possible for the defendant to be in doubt what breach is alleged, then the notice is defective.
15 I also accept the proposition advanced in the plaintiff's submissions that the rules requiring specificity in charges and indictments in criminal proceedings do not apply with the same rigor to contempt proceedings. In this respect, I adopt the observations of Basten JA in Matthews v ASIC [2009] NSWCA 155 [161] - [167] and the observations made in the authorities there cited by his Honour. I also accept, as was said by Nicholls LJ in Harmsworth v Harmsworth (1987) 1 WLR 1683E that the contents of a notice alleging a charge of contempt are to be read fairly and sensibly as they would be read by a reasonable person in the position of the alleged contemnor to whom the notice is addressed.
16 The relevant question of: Would such a person, having regard to the background against which the committal application is launched, be in any doubt as to the substance of the breaches alleged.
Disposition
17 I have concluded that the particulars of the alleged contempt set out in the proposed amended notice of motion are adequate. The foundation on which this conclusion is based is that the 11 November 2015 order was only capable of being breached in one way, that is, by selling more than 1,049 tonnes of pool 2 potatoes in the relevant period between 4 October 2015 and 2 January 2016.
18 Each case must be considered against the background of its own facts and in light of the order allegedly infringed or broken. In my view, a reasonable person in the position of the second defendant, having regard to the background against which this contempt motion is brought, would not be in any doubt that the substance of the breach alleged is that the second defendant sold more than 1,049 tonnes of potatoes in the relevant period. Expressed in the language used by Sir John Donaldson in Chiltern District Council v Keane, the order permitted only one breach.
19 It is not necessary for the plaintiff to particularise all the sales of potatoes that together made up the quantity of potatoes sold in excess of the limit nor is it necessary, in my view, to particularise the sale that took the second defendant over that limit or, alternatively, if more than one such sale was affected concurrently the sales that had that effect.
20 The defendants say that the absence of particularities creates difficulty for the second defendant in establishing the defence provided for by s 98(3) of the Civil Judgments Enforcement Act because the first defendant cannot know which sale took the second defendant over the limit and thus does not know which sale or group of sales a defence under s 98(3) should be directed.
21 The second defendant must meet the case which the plaintiff puts and, likewise, so must the first defendant. The case as put by the plaintiff is formulated in a way in which, in my opinion, it can only be interpreted as involving a single breach of the 11 November 2015 order. The second defendant cannot, by means of a request for particulars or a complaint about lack of specificity, compel the plaintiff to put its case not only in a different way but in a way which does not reflect the terms of the order of 11 November 2015.
22 I intend no disrespect to the cogent submissions advanced on the defendants' behalf by senior counsel but I will deal in a brief and rather summary manner with the other reasons advanced by the defendants as to why particulars should be provided.
23 First, the allegation advanced by the plaintiff is simple, it is that more than 1,049 tonnes of potatoes were delivered. Further particulars cannot be justified on the basis that they are required to determine relevance.
24 Secondly, I do not consider that further particulars are required to enable an assessment to be made of possible defences. It must be remembered that the second defendant knows the facts.
25 Thirdly, I do not consider that further particulars are required to enable the defendants to make an informed judgment about a possible plea. Separately, in connection with a possible plea, any questions that might arise as to the degree of culpability could be dealt with in the usual way by a trial of issues following a guilty plea and I do not consider that the provision of particulars can be justified or is required on the basis that they are necessary for a proper determination of the defendant's culpability.
26 Much the same reasoning applies to a determination of whether there is a case to answer. I do not accept that the rules of autrefois convict or autrefois acquit require greater particularity. Any attempt to bring a second charge of contempt would clearly, in my view, fall foul of those principles or the related doctrines of res judicata and estoppel.
27 For those reasons, I propose to make orders allowing the motion to be amended but I will hear counsel in relation to the precise terms of the order and in relation to the question of costs.
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