R v Sarkis

[2000] VSC 252

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5521 of 2000

THE QUEEN
v.
FAYEZ SARKIS AND OTHERS	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 JUNE 2000
DATE OF JUDGMENT:	13 JUNE 2000
CASE MAY BE CITED AS:	THE QUEEN v. FAYEZ SARKIS
MEDIUM NEUTRAL CITATION:	[2000] VSC 252

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CATCHWORDS:      Contempt proceedings – Application for separate trial of proceeding against one respondent – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	H. Riley	Australian Government Solicitor
For the Third Named Respondent	M. Goldblatt	Goldsmiths

HIS HONOUR:

1. When this proceeding for contempt first came before me in the Practice Court on 29 May, I expressed grave reservations as to whether it was suitable to be dealt with in the Practice Court.  The alleged contempt arises from an order I made against the first respondent Fayez Sarkis, and the second respondent, Greta Sarkis, on 8 March last in proceeding No.4573 of 2000, that order being: 

"Until further order Fayez Sarkis and Greta Sarkis  be restrained from selling, transferring, charging, mortgaging, disposing or dealing in any way with the land and property situated at 79 Grantham Street, Brunswick, in the State of Victoria being the land more particularly described in Certificate of Title Volume 4411 Folio 882153."

1. On 25 May last, the Deputy Commissioner of Taxation, who is the plaintiff in that earlier proceeding, filed an originating motion in the court in this proceeding seeking not only to have Fayez Sarkis and his wife Greta Sarkis dealt with for contempt, but also their son, the third respondent, Sam Sarkis.

1. The contempt alleged against the first and second respondents is that in breach of the order of 8 March, on or about 28 April 2000 the first and second respondents dealt with the land by leasing it.

1. The contempt alleged on the part of the third respondent, their son, is that between 30 March 2000 and 10 April 2000 and knowing of the making of the order of 8 March, he instructed a firm of real estate agents, Holland & Price (Vic) Pty. Ltd., to send to the tenants of the property at 79 Grantham Street, Brunswick, new leases showing the first and second respondents as landlords and thereby aided and abetted the first and second respondents in a breach of the order.

1. The first and second respondents have not been served with the originating motion as they are presently in Lebanon and it is not known when they will be returning to Australia; probably not until towards the end of this year.  Nevertheless, the Deputy Commissioner wishes to proceed with the contempt proceeding against the third respondent and seeks an order pursuant to the provisions of Rule 9.04 that there be a separate trial of that aspect of the proceeding.  The relevant sub-rule of that Rule reads:  

"Notwithstanding Rules 9.01 and 9.02, where any joinder of claims or of parties may embarrass or delay the trial of the proceeding or cause prejudice to any party or is otherwise inconvenient, the court may order that -

(a)     There be separate trials."

1. Counsel for the third respondent contends that that course should not be adopted, that in the circumstances of this case the proceeding for contempt against all the respondents should be heard together.

1. Having considered the matter, it is my opinion that that is the appropriate course to adopt in a case such as the present.  I consider it would be quite wrong for the court to embark upon an investigation of the case against the third respondent without at the same time fully investigating the case against all respondents.  The case against the third respondent is so inextricably bound up with the case that the Deputy Commissioner will seek to make against the first and second respondents that they should be heard together.

1. Further, in my view, a hearing of this matter is going to involve an investigation of a number of complex issues and it must involve the cross-examination of witnesses and the calling of other viva voce evidence.  It is simply unsuitable to deal with the matter in the Practice Court.

1. Therefore, the applicant's application pursuant to Order 9.04 is refused.

1. In my opinion, the appropriate course to adopt with the contempt proceedings is to adjourn the applicant's summons filed in the court on 25 May to the Listing Master on a date to be fixed by the Listing Master after the proceeding has been personally served on the first and second respondents as required by the provisions of Order 75.065 to enable the Listing Master to give further directions as to any interlocutory steps to be taken in the proceeding and to enable the Listing Master to fix a date for the hearing of the proceeding in the Causes List.

1. I order that the costs of this day be reserved.  They will be dealt with in due course. 

(Discussion ensued.).

1. HIS HONOUR:  I am not persuaded that it is appropriate to make any orders as to costs of today or 29 May at this stage and they will remain reserved. 

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