Registrar District Court of South Australia v Holland - [2008] SADC 23

District Court of South Australia
(Civil)
REGISTRAR DISTRICT COURT OF SOUTH AUSTRALIA v HOLLAND
[2008] SADC 23
Reasons of Her Honour Judge Simpson (ex tempore)
7 March 2008
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION
Application by plaintiff and defendant by counterclaim in earlier civil proceedings for order requiring the Registrar of the court to prosecute a charge of contempt against the defendant in the original proceedings - the defendant is the accused in relation to the Registrar's summons for contempt issued at applicants' request - Held: the prosecution of the charge of contempt is in effect enforcement of orders made in favour of the plaintiff in the original proceedings - application refused - order requiring applicants to prosecute charge of contempt
District Court Civil Rules 2006 rr 66(1)(c), 303, 305, referred to.

REGISTRAR DISTRICT COURT OF SOUTH AUSTRALIA v HOLLAND
[2008] SADC 23

The plaintiff and the defendant by counterclaim in Action No DCCIV-05-184, Australian Business Insurance Advisers (ABIA) Pty Ltd v Lyndon John Holland and another (the original proceedings), made an application pursuant to rule 303(1) of the District Court Civil Rules 2006 to have the first defendant in those proceedings charged with contempt.
On 20 December 2007, in the absence of the first defendant, a judge of this court made orders as follows:
1.The Registrar do formulate a written charge containing reasonable details of the contempt as alleged in the Notice for Specific Directions filed by the plaintiff, Australian Business Insurance Advisers (ABIA) Pty Ltd and the defendant by counterclaim, Terence Malcolm Franke dated 18 July 2007 and the affidavits in support.
2.That the aforesaid written charge be served upon the first defendant by his solicitors Messrs Townsends.
3.That the Registrar issue a summons requiring the first defendant to appear before this court at a nominated time and place to answer the charge.
4.The proceedings be adjourned for mention to 1 February 2008 at 10 am.
5.That the costs of today be reserved.
6.Liberty to the parties to apply on 48 hours notice.
The Registrar issued a summons to the accused, Lyndon John Holland, requiring him to attend court at 10 am on 1 February 2008. The details of the alleged contempt are that the accused refused or failed to comply with an order made by her Honour Judge Kelly in this court on 2 November 2005 and the accused is in breach of a written undertaking provided to the court dated 13 November 2006.
In an affidavit sworn on 22 January 2008, Mr John Bean, sheriff’s officer, said he had attempted unsuccessfully to serve the first defendant with the summons by serving the firm of solicitors, Townsends, which had previously acted for the defendants.
By reference to the Copy of Record in the original proceedings it appears that Townsends, solicitors, filed a Notice of Acting for the defendants in the original proceedings on 6 February 2007. On 20 June 2007, Townsends made an application to the court to cease acting for the first defendant. The second defendant was by then in liquidation. On 15 November 2007 the first defendant filed a Notice of Acting in person and gave his address for service as 27 Sampson Street, Mount Waverly, Victoria 3149.
There was no appearance of the accused on 1 February 2008. The summons was adjourned to allow for service on the accused at the address for service filed by the accused in the original proceedings. Personal service of a document initiating proceedings for contempt is required pursuant to rule 66(1)(c) of the District Court Civil Rules 2006. If the accused is interstate, service on the accused may be effected in the same way as in this State, pursuant to section 15(2) of the Service and Execution of Process Act 1992 (Cth).
On 5 February 2008, the Registry sent the summons to the accused, at the address for service given in the original proceedings, by registered post under cover of a letter dated 4 February 2008. Service by post is not personal service in accordance with the rules of court. In any event, the letter and summons were returned to sender, with the notation that the accused had left the address. Service on the accused of any kind has not been effected.
On 27 February 2008 the plaintiff and the defendant by counterclaim in the original proceedings made an application for the following orders:
1.The order made in paragraph 2 of the orders made by his Honour Judge Barrett on 20 December 2007 in Action No 184 of 2005 be discharged and, in substitution, an order be made in the following terms:
“2. The aforesaid written charge be served on the defendant Lyndon John Holland personally.”
2.The Registrar of this court prosecute the charge of contempt against the defendant, Lyndon John Holland.
The application is supported by an affidavit of Mr Terry Franke, sworn on 19 February 2008. Mr Franke is a director of the plaintiff and he is the defendant by counterclaim in the original proceedings. In his affidavit, Mr Franke says the original proceedings were commenced in April 2005. Judgment was entered by consent in favour of the plaintiff in the sum of $180,000 on 23 March 2007. An order for costs was made against the defendants in the sum of $106,238.35. The second defendant went into liquidation on 19 June 2007. The first defendant became bankrupt on 27 July 2007.
Mr Franke says that he has paid some disbursements to the liquidator of the second defendant and the trustee in bankruptcy of the first defendant in the original proceedings. It is not known if there will be funds recovered sufficient to pay unsecured creditors in either case. He has paid sums of approximately $291,000 to his solicitors in the original proceedings and $10,000 to his present solicitors for costs of the litigation against the defendants.
Having regard to the moneys already expended in the litigation, the plaintiff and the defendant by counterclaim in the original proceedings do not wish to be responsible for the prosecution of the proceedings for contempt against the accused, Lyndon John Holland. They seek an order that the Registrar of this court undertake responsibility for the contempt proceedings instead.
Pursuant to rule 305 of the District Court Civil Rules 2006, the procedure on a charge of contempt is as follows:
(1)The Court may require the Registrar or a party to proceedings to which the contempt relates to prosecute a charge of contempt.
(2)The Court will deal with a charge of contempt as follows—
(a)the Court will hear relevant evidence for and against the charge from the prosecutor and the accused;
(b)the Court may, on its own initiative, call witnesses who may be able to give relevant evidence;
(c)at the conclusion of the evidence, the Court will allow the prosecutor and the accused a reasonable opportunity to address the Court on the question whether the charge has been established;
(d)if, after hearing the evidence and representations from the prosecutor and the accused, the Court is satisfied beyond reasonable doubt that the charge has been established, the Court will find the accused guilty of the contempt;
(e)the Court will, if it finds the accused guilty of the contempt, allow the prosecutor and the accused a reasonable opportunity to make submissions on penalty;
(f)the Court will then determine and impose penalty.
Without revisiting the material on which an order was made for the Registrar to issue a summons for contempt, it is nevertheless clear from the Copy of Record in Action No 184 of 2005 that the original proceedings extended over at least two years. In the course of the proceedings, orders in the nature of injunctions were made on a number of different occasions, including 2 November 2005, the subject of the alleged contempt. On 16 June 2006, the matter was referred to arbitration before a judge of this court. On 20 June 2006, orders were made by consent upon the judge being advised that the parties had resolved the action in accordance with a document headed “Terms of Settlement” which was handed up. On 6 September 2006, the plaintiff sought to amend the statement of claim seeking judgment in its favour in accordance with the deed of settlement entered into by the parties. Reference was made by the Master on that occasion to the fact that the injunctive orders made on 2 November 2005 remained in place. On 13 November 2006, the plaintiff obtained an order for security for costs against the defendants. The first defendant’s signed undertaking was accepted by the plaintiff as security in lieu of a cash payment. Judgment was entered for the plaintiff on 23 March 2007, with costs.
Having regard to the nature of the original proceedings and to the nature of the alleged contempt, it is my opinion that it is the party who sought the summons for contempt to issue who should be required to prosecute the charge of contempt. The plaintiff and the defendant by counterclaim in the original proceedings are in a position to marshal and present the evidence against the accused. The Registrar of the court is not. It is not appropriate to require the Registrar of the court to prosecute a charge of contempt against one party in the original proceedings. The prosecution of the charge of contempt against the accused is an action for enforcement of orders made in favour of the plaintiff and defendant by counterclaim against the defendants in the original proceedings and in my opinion, is to be the responsibility of the plaintiff and the defendant by counterclaim, if so advised.
The first defendant in the original proceedings is not to be punished for contempt unless the charge against him is distinctly stated and he has an opportunity to be heard. It is appropriate that he be served personally with the summons issued by the Registrar. Once service is effected, orders may be made with respect to pleadings and other procedural issues which may arise. I propose to require the plaintiff and the defendant by counterclaim, the applicants for the summons to issue, to prosecute the charge from now on, taking responsibility for service of the summons on the accused and attending to proof of service in due course.
Orders
1.I require the plaintiff and the defendant by counterclaim in the original proceedings to which the contempt relates, Action No 184 of 2005, to prosecute the charge of contempt against the accused;
2.I order that the accused, the first defendant in the original proceedings, is to be served personally in accordance with rule 66(1)(c) of the District Court Civil Rules 2006 with the summons issued by the Registrar pursuant to the order made by his Honour Judge Barrett on 20 December 2007;
3.I make no order as to costs;
4.I refer the summons to the Master’s list.