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)

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.
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.
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.
I should record that I am well satisfied that the initiating process has been served on Mr Jarvie on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prothonotary of NSW v Russell Alan Jarvie

Details

AGLC: Prothonotary of NSW v Russell Alan Jarvie [2016] NSWSC 1249
Case: [2016] NSWSC 1249
Decision Date: 29 August 2016

CaseChat Overview and Summary

In the matter of the Prothonotary of New South Wales versus Russell Alan Jarvie, the High Court of Australia was presented with a dispute concerning the power of the court to order the attendance of an individual alleged to have committed contempt of court. The dispute arose from Jarvie's failure to appear at a hearing for alleged contempt, despite service of the necessary documents. The Prothonotary sought to compel Jarvie's attendance at the hearing, arguing that the court had the inherent power to order such attendance.

The primary legal issue before the court was whether the Prothonotary possessed the inherent power to compel the attendance of an individual alleged to have committed contempt of court. The court considered whether such power was necessary to ensure the administration of justice and whether it was consistent with the principles of natural justice. The court also examined the relevant statutory provisions and case law to determine the scope and limits of its inherent power.

The court determined that it possessed the inherent power to order the attendance of an individual alleged to have committed contempt of court. It held that this power was necessary to ensure the administration of justice and to uphold the authority of the court. The court emphasised the importance of natural justice and the need to provide the alleged contemnor with an opportunity to be heard. The court also noted that the power to order attendance was not absolute and had to be exercised with due regard for the principles of fairness and justice. Ultimately, the court found that the Prothonotary had the inherent power to compel Jarvie's attendance at the hearing for alleged contempt of court.

The court's decision affirmed the inherent power of the court to order the attendance of an individual alleged to have committed contempt of court. This power was necessary to ensure the administration of justice and to uphold the authority of the court. The court's decision also emphasised the importance of natural justice and the need to provide the alleged contemnor with an opportunity to be heard. The court's final orders were that Russell Alan Jarvie be compelled to attend the hearing for alleged contempt of court.

Orders