Prothonotary of NSW v Russell Alan Jarvie

[2016] NSWSC 1249

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Prothonotary of NSW v Russell Alan Jarvie [2016] NSWSC 1249
Hearing dates:	29 August 2016
Date of orders:	29 August 2016
Decision date:	29 August 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1)Pursuant to the inherent jurisdiction of the Court order that the defendant attend the Supreme Court on 16 September 2016 and thereafter as required, to answer the charge of contempt of court set out in the Summons dated 19 May 2015; (2)Order that this order be taken to be served on the defendant by leaving it at the gate to the premises at xxxxxxxxxxxxxxx and at the premises at xxxxxxxxxxxxxxxxxx; (3)Order that personal service of the order be dispensed with and upon compliance with Order 2 the defendant shall be deemed to have been duly served with this order; (4)Order that the costs of this motion be costs in the summons listed on 16 September 2016; (5)Direct that any further affidavit evidence to be relied on by the plaintiff be filed and served by 2 September 2016; (6)Service pursuant to Order 5 may be effected either personally or in accordance with Order 2.
Catchwords:	CONTEMPT – practice and procedure – evasion of service by alleged contemnor – power to order attendance at hearing
Legislation Cited:	Property (Relationships) Act 1984 (NSW)
Cases Cited:	Attorney General of New South Wales v Hayden (1994) 34 NSWLR 638
Category:	Procedural and other rulings
Parties:	Prothonotary of NSW (Applicant) Russell Alan Jarvie (Respondent)
Representation:	Counsel: D Kell (Applicant) Solicitors: Crown Solicitors Office of NSW (Applicant)
File Number(s):	2015/148650

Ex Tempore Judgment (reviseD)

1. The Prothonotary brings proceedings for contempt against the defendant, Russell Alan Jarvie. The particulars of the charge allege contempt of a most serious kind. The defendant who was a party to proceedings under the Property (Relationships) Act 1984 (NSW) is charged with altering the orders that had been made by Brereton J on 27 March 2014. His Honour had ordered the sale of a property the subject of the proceedings, directing that the net proceeds of sale be paid to a solicitor to be held and dealt with in accordance with the orders of the Court. The defendant allegedly attempted to subvert that order by altering a form of it by providing that the moneys be paid to him.

2. The Prothonotary seeks by motion an order that the defendant attend the Court on 16 September 2016, when the contempt proceedings are listed for hearing, to answer the charge. In support of that motion Mr Kell of counsel, the Acting-Crown Advocate, who appears with Ms Sullivan, has read a number of affidavits.

3. I am well satisfied from considering this evidence that Mr Jarvie has not only made it difficult for the plaintiff to effect service, but has also, at times, significantly sought to evade service of documents in relation to the proceedings.

4. I should record that I am well satisfied that the initiating process has been served on Mr Jarvie on 31 July 2015. This arises out of the facts deposed to by Miles Smith, a commercial and private inquiry agent, in his affidavit sworn on 17 August 2016. I need not go through the detail that. Mr Kell has taken me through it.

5. That matter is also corroborated, if it needed to be, by the affidavit of Clare Miller, a solicitor employed by the Crown Solicitor of New South Wales, in her affidavit affirmed on 18 August 2016. In particular, Ms Miller gives evidence that when the matter came before Registrar Kenna (as the Prothonotary then was), the Registrar recorded that the defendant had telephoned the Registry saying that he was unable to attend court on that day, which was the first return date, as he did not have the money for the bus fare. He also relayed other relevant information. From that it is apparent that he was served, understood the nature of the proceedings and understood the requirement that he appear in answer to them. But it is clear that he has failed to attend court on other occasions when the matter has been before the Court.

6. Mr Smith also gives compelling evidence of an attempt to evade service of evidence in the proceedings when Mr Jarvie engaged in an elaborate ploy to give Mr Smith the slip by leaving his premises by a rear exit whilst his mother left by car from the front exit, the former joining the car further down the street. I also record that his mother, as part of the attempted evasion, told the investigator at the front exit that the defendant was "very sick and has been in hospital, he is not here.”

7. Mr Kell has reminded me that the Court has inherent jurisdiction to make an order requiring a defendant to appear in answer to a charge of contempt, and he has referred, in particular, to the reported decision of Attorney General ofNew South Wales v Hayden (1994) 34 NSWLR 638 at 639–640, where Kirby P, as his Honour then was, explained that it was "plain that the Court had jurisdiction and power to require the attendance of the alleged contemnor at the hearing of the contempt charge. Such jurisdiction and power arise … from the inherent jurisdiction of the Court …”

8. His Honour also referred to the content of the then rules of the Supreme Court- which Mr Kell tells me are no longer in force – however I am satisfied that the Court has inherent jurisdiction to make the orders sought. Indeed at [15] of his very helpful and succinct written submissions, Mr Kell refers to a series of cases at first instance, both here and in Western Australia, where orders such as those sought by the Prothonotary have readily been made. I am satisfied that I have the power to make the order. I am also satisfied that the order should be made.

9. As explained by Kirby P in Hayden, there are many good, practical reasons why an alleged contemnor should be ordered to attend. First, a requirement that he attend at least at the beginning of the proceedings confirms that he has been served and has notice of the proceedings. Secondly, the requirement that an alleged contemnor attend brings home the seriousness of the charges and the seriousness of the manner in which he should approach the proceedings. Thirdly, it also avoids any belated allegation of lack of service or notice and avoids, for that reason, the waste of the substantial public funds expended in bringing a contemnor to Court.

10. For those reasons, I will make orders in accordance with the Minute of Order signed by me, dated today. I direct that a re-engrossed form of the order may be lodged with my chambers for signature, and that the seal of the Court may be affixed to the order.

11. I make the following orders:

1. Pursuant to the inherent jurisdiction of the Court order that the defendant attend the Supreme Court on 16 September 2016 and thereafter as required, to answer the charge of contempt of court set out in the Summons dated 19 May 2015;

2. Order that this order be taken to be served on the defendant by leaving it at the gate to the premises at  xxxxxxxxxxxxxxxxxxx and at the premises at xxxxxxxxxxxxxxxxx;

3. Order that personal service of the order be dispensed with and upon compliance with Order 2 the defendant shall be deemed to have been duly served with this order;

4. Order that the costs of this motion be costs in the summons listed on 16 September 2016;

5. Direct that any further affidavit evidence to be relied on by the plaintiff be filed and served by 2 September 2016;

6. Service pursuant to Order 5 may be effected either personally or in accordance with Order 2.

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Amendments

08 September 2016 - Address anonymised.

07 September 2016 - Paragraph [5] "Register" changed to "Registrar"

Decision last updated: 08 September 2016