Registrar of the District Court of SA v Phillis No. DCCIV-00-988

Registrar of the District Court of SA v Phillis
[2000] SADC 153

Judge Muecke
Civil

By a Registrar’s Summons issued on 21 July 2000, Mr David Phillis was charged with Contempt of Court ‘in that he did dispose of or fail to provide to Lyn-Marie Szenkovics property as agreed pursuant to the Orders made by His Honour Judge Sulan on 3 July 2000’. That Summons was amended by leave granted on 1 August 2000 and on 1 November 2000.
On Monday 3 July 2000 an action commenced in this Court came on for trial before His Honour Judge Sulan. The parties were Lyn-Marie Szenkovics as plaintiff and David Phillis as defendant. The action concerned a claim under the DeFacto Relationships Act 1996. In these reasons I shall refer to Ms Szenkovics by her name or as ‘the plaintiff’, and to Mr Phillis by his name or as ‘the defendant’.
The matter did not proceed to trial that day because during the course of the day the parties resolved their differences. That resolution was reflected in handwritten Minutes of Consent Orders that Judge Sulan was asked to make at the end of Monday 3 July 2000. Those orders imposed certain responsibilities on the parties, including inspection and delivery of certain property.
On 20 July 2000 I was asked by the plaintiff in that action to direct the Registrar of this Court to issue a summons directed to the defendant. R93.03 of the District Court Rules authorises a Judge to direct the Registrar to issue a summons where it is alleged that a contempt of Court has been committed. Such summons is to state the nature of the alleged contempt with sufficient particularity for the person charged to make his defence to the charge. After hearing both parties I directed the Registrar to issue a summons to Mr David Phillis. The Summons dated 21 July 2000 in the terms earlier referred to was issued and served on Mr Phillis.
On 25 July 2000 counsel for Mr Phillis applied that I rescind the order I made on 20 July 2000. I refused that application but directed the plaintiff to file and serve further and better particulars of the allegations of contempt. Further and Better Particulars of Contempt were filed by solicitors for Ms Szenkovics.
On 1 August 2000 counsel for Mr Phillis applied that the Summons be struck out on the basis that it was duplicitous. Counsel for Ms Szenkovics applied to amend the Summons and I gave leave to do so. It was not suggested that the Summons in its amended form was duplicitous.
The Summons was again amended by leave given on 1 November 2000.
In its finally amended form the Summons charged Mr Phillis with two counts of Contempt, both arising out of the Orders made by Judge Sulan in the action by Ms Szenkovics against Mr Phillis pursuant to the DeFacto Relationships Act 1996. The contempts alleged were that:
1...... Contrary to paragraph 1.4 of the Order made by His Honour Judge Sulan on 3 July 2000 in Action No 1569 of 1999 he failed to provide to Lynn‑Marie Szenkovics all furniture accumulated by the parties during the course of their relationship and located on 3 July 2000 at the places specified in that paragraph of the said Order and further failed to provide all plant and equipment in the business operated by the defendant known as D.J. Hire located at the Woodville property on 3 July 2000, particulars of which said contempt are contained in paragraphs 2-9 inclusive of the Further and Better Particulars of Contempt filed on 28 July 2000;
2Contrary to paragraph 1.9 of the said Order attempted to dispose of certain of the plant and equipment from the business operated by the defendant known as D.J. Hire, particulars of which contempt are contained in paragraph 10 of the said Further and Better Particulars of Contempt.
Paragraphs 1.4 and 1.9 of the Order made by His Honour Judge Sulan on 3 July 2000 provided:
1.4... the defendant shall cause to be delivered to the plaintiff at the expense of the plaintiff at a time to be agreed between the parties but in any event not more than 14 days from the date of this order all furniture accumulated by the parties during the course of their relationship and presently located at the Woodville Park property or at the Enfield property or at the shack of the defendant’s parents at Sheoak Flats together with all plant and equipment from the business operated by the defendant known as ‘D.J. Hire’ presently located at the Woodville Park property and for the purpose only of enabling the plaintiff to inspect such plant and equipment will arrange for the plaintiff and her solicitor to have admission to the shed on the Woodville Park property on the afternoon of 3 July 2000.
1.9pending the delivery to the plaintiff of the furniture and plant and equipment referred to in order 1.4 above the defendant be and is hereby restrained from removing, disposing of or in any encumbering the said furniture and plant and equipment.
R93.06 of the District Court Rules sets out the procedure to be adopted by the Court on proceedings for contempt. On 1 August 2000 Mr Phillis was asked whether he pleaded guilty or not guilty to the two contempt charges. He pleaded not guilty to both charges. I directed, pursuant to r93.06(d), that evidence in support of the contempt charges be presented by counsel for Ms Szenkovics.
R93.06(e) provides that, where substantial punishment is a practical possibility, the procedures to be adopted and the onus of proof to be applied and the rules of evidence to be followed on a hearing of contempt charges, shall be those generally applicable in criminal proceedings to the extent that they are appropriate. I consider that on the hearing before me, the procedures to be adopted and the rules of evidence to be followed were those applicable in criminal proceedings. Further, I consider that the contempts alleged against Mr Phillis, and each element of those contempts, must be proved beyond reasonable doubt.
The Summons came on for hearing on 4 September 2000. On that day I dismissed applications on behalf of Mr Phillis to strike out the two contempt charges. The matter then proceeded to hearing. It was heard over five days and concluded on Friday 3 November 2000. Rule 93.06(f) provides that ‘at the conclusion of the hearing the Court shall make a finding whether the ... person is guilty or not guilty of the contempt alleged or of the substance of the alleged contempt’.
As already indicated Ms Szenkovics’ claim under the DeFacto Relationships Act 1996 came on for trial on Monday 3 July 2000. Attempts to settle the action at a Conciliation Conference (February 2000) and at Mediation (May 2000) had failed. Both parties were represented at the trial by counsel. An application was made to Judge Sulan to delay commencing the trial to enable the parties to try and settle the dispute. Those negotiations were conducted for nearly the entire day.
Ms Szenkovics had commenced proceedings against Mr Phillis by Summons dated 1 November 1999 seeking the relief set out in a Statement of Claim. The Summons was brought pursuant to s10(1) of the DeFacto Relationships Act 1996. She alleged that she and the defendant lived in a bona fide domestic relationship within the meaning of s3 of that Act from about October 1982 until 5 November 1998, except for a period of approximately nine months between 1988 and 1989. In an extensive Statement of Claim she set out the financial and non-financial contributions she allegedly made to the relationship. She referred to land and dwellings purchased during the relationship as well as to sheds, motor vehicles, and other property. She referred to the assistance she had given the defendant in ‘the operation of his unincorporated business known as “D J Hire”’. She alleged that although that business ceased operating in 1996 it still had property, plant and equipment of considerable value which remained in the possession of the defendant ‘and the business of the defendant is capable of becoming operational in the future’. As to that allegation Mr Phillis, in his Defence, pleaded that ‘the defendant’s business was closed in 1997. The defendant has no intention of operating the business in the future.’ Ms Szenkovics further alleged that ‘the defendant has substantial furniture and electrical equipment in his possession and the plaintiff made a financial contribution towards the furniture and electrical equipment’. The defendant denied that allegation. He alleged that ‘the plaintiff removed furniture and belongings owned by the defendant from the workshop located at the Woodville Park property. The plaintiff engaged a locksmith to gain entry to the said Woodville Park property and removed furniture and belongings with the assistance of a removal truck. The defendant estimates that the amount attributed to the property removed by the plaintiff to be an estimated $30,000-$50,000 in replacement value.’
In her Prayer for Relief in her Statement of Claim the plaintiff claimed that it was just and equitable for the Court to make orders for the division of property of either or both defacto partners pursuant to the DeFacto Relationships Act 1996.
I have set out these matters in some detail because the pleadings and the hearing before me satisfy me the action brought in this Court was about the proper division of property of both parties which had been purchased or accumulated during the course of a relationship which was alleged to have existed for about sixteen years. That property included furniture and electrical equipment. The plaintiff’s allegation that the defendant had substantial furniture and electrical equipment in his possession and that she had made a financial contribution towards that furniture and electrical equipment was denied by the defendant. As to the electrical equipment, it was allegedly in a shed at a property owned by the parties at Woodville Park from which the defendant had operated a business known as ‘D J Hire’.
At about 4.15 pm on Monday 3 July 2000 a settlement of the action was reached. The terms of the settlement were written out by counsel for Ms Szenkovics and the parties agreed to ask the Court to make the handwritten orders by consent. Judge Sulan made those orders. They were engrossed and sealed on 17 July 2000.
A consideration of the orders satisfies me that the parties intended that the orders would resolve all issues in dispute between them. In particular they intended by their agreement to be reflected by the consent orders to resolve all matters relating to real estate, furniture, equipment from the business operated by the defendant known as 'D J Hire', the contents of a safe located at the Woodville Park property, personal property presently in the possession of each of the parties, and any superannuation entitlements of the parties.
The orders provided for the transfer to Mr Phillis of the interests of Ms Szenkovics in two properties referred to as the Woodville Park property and the Enfield property. Upon the transfer of those interests Mr Phillis was to pay a certain capital sum to Ms Szenkovics. Paragraph 1.4 of the orders required Mr Phillis to deliver to Ms Szenkovics ‘all furniture accumulated by the parties during the course of their relationship and presently located at the Woodville Park property or at the Enfield property or at the shack of the defendant’s parents at Sheoak Flats’. It also required Mr Phillis to deliver to Ms Szenkovics ‘all plant and equipment from the business operated by the defendant known as “D .J. Hire” presently located at the Woodville Park property’. Finally, paragraph 1.4 provided that ‘for the purpose only of enabling the plaintiff to inspect such plant and equipment (the defendant) will arrange for the plaintiff and her solicitor to have admission to the shed on the Woodville Park property on the afternoon of 3 July 2000’.
Paragraph 1.9 of the order provided that pending delivery to the plaintiff ‘of the furniture and plant and equipment referred to in order 1.4 above (the defendant) be and is hereby restrained from removing, disposing of or in any way encumbering the said furniture and plant and equipment’.
There was some discussion before Judge Sulan about paragraph 1.4 of the Order. In particular there was discussion about whether there would be any dispute about furniture. Ms Szenkovics’ counsel indicated that their discussions had proceeded on the basis that there was furniture and plant and equipment in the shed at the Woodville Park property. She conceded that to some extent there must be some goodwill because there was a dispute as to what was left of the furniture. Mr Phillis accepted in his evidence that he was aware when the action was settled that Ms Szenkovics claimed that the plant and equipment of D J Hire had a substantial value. He had claimed that ‘the business had no value’ although at trial on the contempt charges he accepted that some of the items (or the goods, or the chattels) which the business had acquired that were still in his possession had value.
Ms Szenkovics and her solicitor attended at the Woodville Park property at about 5 pm on 3 July 2000, the date of the settlement and the consent orders. They removed certain items from the safe inside the house. They were provided entry into the shed. Ms Szenkovics observed the contents of the shed. There was some conversation between Ms Szenkovics and Mr Phillis before she left.
Following that visit there was correspondence between solicitors regarding when the plaintiff might take delivery of the furniture and plant and equipment referred to in paragraph 1.4 of the order. On Friday 14 July 2000 arrangements were made for Ms Szenkovics to attend at the Woodville Park property at 8.30 am on Monday 17 July 2000 to take delivery of furniture and plant and equipment.
On Tuesday 11 July 2000 the plaintiff’s solicitor wrote to the defendant’s solicitor. The letter read in part:
Our client has requested that your client makes the trailers which form part of the property of D.J. Hire available for collection on the date agreed by the parties. She also requests that your client removes the Bedford Van presently located in the shed in order to provide access to the cellar.
As we stated in our previous letter we are anxious to ensure that the property collection proceeds without incident. Therefore, we trust that your client has not removed any property of D.J. Hire, or other items which were viewed on 3 July 2000, from the shed at Marlborough Avenue. In the event that any property is unavailable we would have no choice but to have the matter re-listed in the District Court.
On Thursday 13 July 2000 the plaintiff was advised by her solicitor that a facsimile had been received from the defendant’s solicitor on that day in reply to the above letter. It read in part:
In relation to your client’s request that our client make trailers available for collection we are instructed as follows. Our client has concerns that your client’s definition of “plant and equipment” of the business D J Hire is incorrect. Our client’s instructions to Richard Hogan on 3 July 2000 were that he would cause to be delivered to your client at your client’s expense “all the plant and equipment from the business operated by our client known as D J Hire”. Our client’s instructions are that the plant and equipment from the business DJ Hire was set out in schedules of depreciation prepared by our client’s accountant and that your client has copies of those schedules. Articles that do not form part of the depreciation schedule are not plant and equipment from the business DJ Hire. Our client instructs us that there are a number of other things in the shed at the Marlborough Avenue property and many of those articles were not articles of plant or equipment from the business DJ Hire.
We are instructed that most of the plant and equipment from DJ Hire stipulated as part of the depreciation schedule was disposed of over the 1996/97 and 1997/98 financial years and after cease of trading in 1996. Your client is fully aware of the transactions and has benefited financially from the sale of the plant and equipment.
We enclose for your information a schedule of depreciation detailing the plant and equipment of DJ Hire as of 30 August 1998.
The plaintiff was advised of the above and she was forwarded a copy of the Depreciation Schedule. The Depreciation Schedule is stated to be as at 30 August 1998 but is in fact, as at 30 June 1998. She instructed her solicitor that she had never seen that Depreciation Schedule before. She said that she didn’t understand the allegations being made by the defendant by his solicitor’s facsimile. She said in evidence that this letter was the first time that she knew that it was suggested by the defendant that plant and equipment from the business D J Hire was confined to such items as appear under the heading of ‘plant and equipment’ in the Depreciation Schedule to 30 June 1998 which had not already been disposed of since the business ceased trading in 1996. Her evidence was consistent with the letter her solicitor wrote in reply to the defendant’s solicitor’s letter of 13 July 2000. It was dated 14 July 2000 and read, in part:
We refer also to the comments raised by your client with respect to what constitutes the ‘plant & equipment of D.J. Hire’. We point out that our client has not had copies of depreciation schedules prepared by your client’s accountant supplied to her. Our client was not aware of the disposal of plant and equipment of D.J. Hire over the period 1996-1998 and she certainly did not benefit financially from these transactions. The sale of ‘D.J. Hire’ property was never raised at any stage of the negotiations in the District Court. Our client therefore expects that all plant and equipment of D.J. Hire will be available for her collection in accordance with the terms of the agreement.
The Depreciation Schedule attached to the defendant’s solicitor’s letter of 13 July 2000 has notations on it which indicate that it was probably faxed by the defendant to his solicitor on Wednesday 12 July 2000. That probably occurred as a result of his solicitor seeking instructions regarding the letter from the plaintiff’s solicitor dated 11 July 2000. That might suggest that the defendant’s solicitor did not already have a copy of the schedule.
Also on Thursday 13 July 2000 Ms Szenkovics saw an advertisement in the ‘Weekly Trading Post’ published that day. It was under the heading: ‘Band Equipment and Accessories’. It read:
Sound equipment, 200 watt x 15in speakers
$250 each, 100 watt x 12in twin cone $160
each , all brand new, amplifiers 600B $600,
200B $400, SC4000 $600, lots more to
chose from WOODVILLE 0419-81 3991
She also saw an advertisement in that publication for the sale of a Bedford van. She suspected this was the vehicle she saw in the shed when she visited the Woodville Park property on the evening of Monday 3 July 2000. The mobile telephone number was the same as for the sound equipment. She recognised the mobile telephone number in the advertisements to be Mr Phillis’. The advertisements appeared in columns indicating that it was the second week they had appeared. She obtained the Weekly Trading Post published 6 July 2000 and saw an identical advertisement for sound equipment in that publication. The deadline for placing the advertisement in the publication of Thursday 6 July 2000 was 8 pm on Tuesday 4 July 2000, the day after the consent orders and the inspection.
On Friday 14 July 2000 Ms Szenkovics gave certain instructions to an investigating agent, Mr Malcolm Peters. Mr Peters rang the defendant that day on the telephone number in the advertisements. He pretended that he was ringing in regard to the advertisement for sound equipment. An appointment was made for Mr Peters to attend at the Woodville Park premises the following day, Saturday 15 July 2000. When he did so he told the defendant a made-up story about the purpose for which he was looking for sound equipment. The defendant told Mr Peters that the advertised equipment would not suit that purpose but that other equipment that he had would be suitable. Following discussions the defendant wrote the following on the front of an envelope:
2 x JBL CAB + SPEAKERS
4 x 15” JBL
2 x SHOT GUNS
4 x SLOTS
ASTRO RAGGIE
2 x GOBOS
1 x ALIGATOR
$2,400 TOTAL
DEPOSIT $100 PAID CASH
TO PICK UP
SAT 22/07/00
+ CABLES TO SUIT
DAVE PHILLIS
0419 813991
32 MARLBOROUGH AVE
WOODVILLE PARK

This reflects an agreement between Mr Peters and the defendant that the defendant would sell to Mr Peters the items referred to for $2,400. Mr Peters paid a deposit of $100. The defendant wrote the following on the back of the same envelope:
RCF 15”
W BINS
FOR SUB BASS
$600
PAIR
This notation indicated certain sound equipment which the defendant offered to sell to Mr Peters for $600.
Mr Peters reported these events to Ms Szenkovics.
Prior to Monday 17 July 2000 Ms Szenkovics had arranged for a removalist to attend at the Woodville Park property to remove what she expected Mr Phillis to provide her pursuant to paragraph 1.4 of the order. When she saw the advertisements and received a report from Mr Peters, she telephoned the removalist before arriving at the Woodville Park property on Monday 17 July 2000 and instructed them not to come to the premises unless she contacted them and told them otherwise. By that time she suspected that Mr Phillis was going to ‘renege’ on the settlement.
When she arrived at the Woodville Park property she was allowed entry by Mr Phillis through the side gate. The door to the shed was closed. She saw a collection of assorted goods which had been covered by something on the concrete area between the side gate and the shed. She considered that they represented a very small proportion of the furniture and plant and equipment to which she considered she was entitled pursuant to court’s order. In particular, the pile contained a very small proportion of what she considered to be plant, equipment and other items associated with the D J Hire business which she had seen inside the shed when she inspected the interior of it on the day of the settlement two weeks earlier.
She took a Black and Decker garden hedge trimmer from the pile of goods and returned to her car which was parked in front of the house. She was followed by Mr Phillis. She placed the hedge trimmer in the boot of her car and then sat in the driver’s seat for one to two minutes whilst making a telephone call to her solicitor. Mr Phillis took a photograph of her putting the hedge trimmer in the boot of her car and another of her sitting in the driver’s seat. She said Mr Phillis walked back up the driveway and through the gate. After her ‘phone call she walked back to the gate and found it locked. She rattled the gate. Someone yelled out something which she interpreted as a suggestion that she might leave. She then left the premises.
On Wednesday 19 July 2000 the plaintiff made an interlocutory application seeking, inter alia, an order that the defendant be required to answer a contempt of the orders of Judge Sulan made on 3 July 2000. I have already referred to the events which followed that application.
The first alleged contempt charges the defendant that contrary to paragraph 1.4 of the order of Judge Sulan he failed to provide to the plaintiff:

(a)all furniture accumulated by the parties during the course of their relationship which was located on 3 July 2000 at the Woodville Park property, the Enfield property, and his parents’ shack at Sheoak Flats; and
(b)all plant and equipment in the business operated by him known as D J Hire which was located on 3 July 2000 at the Woodville Park property.

The plaintiff gave particulars of this alleged contempt by reference to certain schedules.
This alleged contempt, or the substance of this alleged contempt, was that the defendant was required by the consent order to provide to the plaintiff certain furniture and plant and equipment. The plaintiff identified that furniture and plant and equipment by reference to what she saw in the shed at Woodville Park on the occasion that she inspected the interior of the shed on the day of the settlement and consent orders. The goods assembled by the defendant in front of the shed for her collection on Monday 17 July 2000 comprised but a small proportion of the items to which she was entitled pursuant to the order. Furthermore, her case was that the defendant failed, with the exception of the hedge trimmer, to provide her with even those items in front of shed because she was denied re-entry to the premises after she had placed the hedge-trimmer in the boot of her car. The items are still in the defendant’s possession.
The second alleged contempt, or the substance of this alleged contempt, charges the defendant that contrary to paragraph 1.9 of the order of Judge Sulan he attempted to dispose of certain of the plant and equipment from the business operated by the defendant known as D J Hire, being the sound equipment advertised for sale by the defendant in the ‘Weekly Trading Post’ on 6 and 13 July 2000, the items he sold or agreed to sell to Mr Peters and those further items he offered to sell to Mr Peters.
R93 of the District Court Rules which deals with contempt of court provides that for the purposes of the rule ‘Contempt of court’ includes contempts arising from non-compliance with any order ... of the court (R93.01). No issue arises in this case that Mr Phillis could not be in contempt because the order had not been served personally on him. Had that arisen I would have decided that he had sufficient notice of the terms of the orders. On his own evidence, he was involved in negotiations for nearly a day prior to the minutes of consent order being prepared. He read those minutes. He was present in court when the orders were made.
I have already ruled that s270A of the Criminal Law Consolidation Act operates in a case such as this. That section provides that a person who attempts to commit an offence (whether the offence is constituted by statute or common law) shall be guilty of the offence of attempting to commit that offence. I see no reason in principle or logic for that section not to apply to a contempt of court. By virtue of that section then a person who attempts to commit a contempt of court shall be guilty of an offence of attempting to commit that contempt.
Even if that was not the case, I am satisfied that an attempt to commit a contempt of court would fall within the definition of ‘contempt of court’ in R93. That definition is an inclusive one and I consider that where a person who is subject to an order of the court is guilty of an attempted non-compliance with any order of the court the court would have jurisdiction to deal with such a person. This is because the underlying purpose of punishment for contempt is to vindicate the due administration of justice (see Pelechowski v Registrar (1999) 73 ALJR 687, para 147 et seq).
I note here that the defendant conceded that there was a sale of certain equipment to Mr Peters on Saturday 14 July 2000. That was the equipment which Mr Phillis agreed to sell to Mr Peters for $2,400. At least in respect of those items, it is open to me to find that a completed offence of contempt was committed by the defendant rather than an attempted contempt.
The defendant is not to be found guilty of either of the alleged contempts unless I am satisfied beyond reasonable doubt of every element of the contempt.
In relation to the first alleged contempt the defendant submitted that there were four elements that must be proved beyond reasonable doubt. First, the order; secondly, that the defendant has failed to provide certain things; thirdly, that the defendant failed to provide all of the furniture accumulated by the parties during the course of their relationship; and fourthly, that the defendant failed to provide all of the plant and equipment of the business known as D J Hire.
In relation to the second alleged contempt the defendant submitted that there were five elements that must be proved beyond reasonable doubt. First, the order; secondly, an attempted disposal of certain things; thirdly, that those things were plant and equipment of the business known as D J Hire; fourthly, that such equipment was advertised for sale; and fifthly, there was a sale to Mr Peters of items listed in paragraphs 10.2 and 10.3 of the particulars.
I am satisfied beyond reasonable doubt of the following matters:

(a)That the order was made in the terms of the sealed order dated 17 July 2000 (Exhibit P2) and that on 3 July 2000 the defendant knew of the order and knew of each of the terms of the order, including the terms of paragraphs 1.4 and 1.9 of the order;
(b)That there was certain furniture located at the Woodville Park property on 3 July 2000 that was not made available to be collected by the plaintiff by placing it outside the shed on 17 July 2000;
(c)That there were certain items (to use a neutral term) that had been purchased by the D J Hire business that were within the shed on 3 July 2000 that were not made available to be collected by the plaintiff on 17 July 2000. Some of these had been used in operating the business and some had not;
(d)That on 6 and 13 July 2000 the defendant advertised for sale items purchased by the D J Hire business that were within the shed on 3 July 2000 and were not made available to be collected by the plaintiff on 17 July 2000;
(e)That on 15 July 2000 the defendant agreed to sell or sold certain items purchased by the D J Hire business that were within the shed on 3 July 2000 and that were not made available to be collected by the plaintiff on 17 July 2000;
(f)That on 15 July 2000 the defendant offered to sell to Mr Peters a pair of speakers that had been purchased by the D J Hire business and that were not made available to be collected by the plaintiff on 17 July 2000. (There was a dispute at trial as to whether these speakers were located at the Woodville Park property on 3 July 2000.)

The real issue as to the first alleged contempt, or the substance of the first alleged contempt, is whether:

(a)any item of furniture that was at the Woodville Park property on 3 July 2000 and was not made available to the plaintiff on 17 July 2000 was ‘furniture accumulated by the parties during the course of their relationship’.
(b)any item which related to the D J Hire business that was at the Woodville Park property on 3 July 2000 and was not made available to the plaintiff was ‘plant and equipment from the business operated by the defendant known as “D J Hire”’

The real issue as to the second alleged contempt, or the substance of the second alleged contempt, is whether:

(a)any of the equipment the defendant advertised for sale in the Weekly Trading Post on 6 and 13 July 2000 was ‘plant and equipment from the business operated by the defendant known as “D J Hire”’;
(b)any of the equipment the defendant agreed to sell or did sell to Mr Peters on 15 July 2000 was located at the Woodville Park property on 3 July 2000 and was ‘plant and equipment from the business operated by the defendant known as “D J Hire”’;
(c)the equipment the defendant offered to sell to Mr Peters on 15 July 2000 was located at the Woodville Park property on 3 July 2000 and was ‘plant and equipment from the business operated by the defendant known as “D J Hire”'

Before I can find Mr Phillis guilty of any contempt I must be satisfied beyond reasonable doubt of one of the above.
The defendant did not suggest that the plaintiff must prove precisely, item by item, what constituted the furniture and plant and equipment referred to in paragraph 1.4 of the order. Subject to the requisite knowledge of the defendant, if I am satisfied beyond reasonable doubt that there was certain furniture accumulated by the parties during the course of their relationship that was located at the Woodville Park property on 4 July 2000 and was not made available to the plaintiff on 17 July 2000; or if I am satisfied beyond reasonable doubt that there was certain plant and equipment from the D J Hire business that was located at the Woodville Park property on 4 July 2000 and was not made available to the plaintiff on 17 July 2000, then I would be entitled to find the first alleged contempt proved. Similarly, if I am satisfied beyond reasonable doubt that there was certain plant or equipment from the D J Hire business that was at the Woodville Park property on 3 July 2000 that the defendant attempted to sell or did sell, thereby attempting to dispose of it or did dispose of it, I would be entitled to find the second alleged contempt proved.
The real issue in this case then is whether certain furniture was ‘furniture accumulated by the parties during the course of their relationship’ and whether certain items were ‘plant and equipment from the business operated by the defendant known as “D J Hire”’.
The plaintiff said that paragraph 1.4 of the consent order was intended by the parties to reflect an agreement between them to the effect that, with some limited exceptions, the defendant would deliver to her the contents of the shed at the Woodville Park premises insofar as that shed contained furniture and any items purchased by or used in the business known as D J Hire. She said that the words ‘plant and equipment’ were used in paragraph 1.4 ‘fairly openly and fairly widely’. By this I took her to mean that the words were not used as terms of art or used by reference to any accounting standard. They also were not used by reference to any document, and in particular to any depreciation schedule which had in the past been prepared in relation to D J Hire. Rather, they were used in a wide descriptive way to encompass all plant, equipment, and any other item used to operate the D J Hire business that were, at the time the order was made and the inspection was taken on 3 July 2000, within the shed at the Woodville Park property.
The defendant’s case, on the other hand, was that the phrase ‘furniture accumulated by the parties during the course of their relationship’ was understood by him in a precise way. Furthermore, insofar as the order referred to plant and equipment from the D J Hire business, he said that he had negotiated the settlement and understood the agreement reflected in paragraph 1.4 of the order to be confined to any of the items listed under the code heading ‘Plant & Equipment’ on the depreciation schedule of 'D J Hire' as at 30 June 1998 which were still in existence and were located within the shed at the Woodville Park property on 3 July 2000.
The words used in paragraph 1.4 of the order do not fit comfortably with the interpretation contended for by the plaintiff or that contended for by the defendant. Paragraph 1.4 could easily have referred, on the one hand, to all items of furniture and all D J Hire equipment within the shed at the Woodville Park property on 3 July 2000, or, on the other hand, to all items under the heading of ‘plant and equipment’ on the depreciation schedule for D J Hire as at 30 June 1998 within the shed at the Woodville Park property on 3 July 2000.
The question as to whether an undertaking which is ambiguous and uncertain can or should be enforced by contempt proceedings was considered by Barwick CJ in Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483. He said, at page 492:
The appellant submitted that unless the language of the undertaking was unambiguous and certain, it should not be enforced by contempt proceedings: and sought support for the submission in Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 and Iberian Trust Ltd v Founders Trust and Investment Co [1932] 2 KB 87. In my opinion, these authorities do not support this conclusion. If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense which the Court assigns to it. If the Court is satisfied that the party said to be in contempt bona fide believed himself bound only by a construction which the Court thinks to be erroneous, it may for that reason, in its discretion, refuse to make an order or, if it makes an order, refuse to make an order for costs against that party. But even in such a case, the enforcement of the plaintiff’s rights must not be left out of account. A party who has bona fide acted on an erroneous view of an order or undertaking may, according to the circumstances, none the less be justly adjudged guilty of contempt in procedure. In my opinion, this is equally so where, because of its terms or circumstances, the order or undertaking requires construction in order to determine its meaning and remove ambiguities patent or latent.
I consider that I can find the defendant guilty of contempt if I am satisfied beyond reasonable doubt of any of the following:
That he failed to make available to the plaintiff any item of furniture or any item of plant and equipment from the D J Hire business which he knew to be within the terms of paragraph 1.4 of the order.
That he attempted to sell or did sell any item of plant and equipment from the D J Hire business which he knew to be within paragraph 1.4 of the order and which he knew he was restrained from disposing of by paragraph 1.9 of the order.
That he failed to make available to the plaintiff any item of furniture or any item of plant and equipment from the D J Hire business because he had a bona fide belief that he was bound only by a construction of the order which the court thinks to be erroneous.
That he attempted to sell or did sell any item of plant and equipment from the D J Hire business because he had a bona fide belief that he was bound only by a construction of the order which the court thinks to be erroneous.
I come to the evidence.
I first deal with the evidence about the business of 'D J Hire'. There was much common ground between the plaintiff and the defendant as to this business. There were some differences relating to the various dates but they are of no real moment in setting out the background of that business.
In about 1979 Mr Phillis commenced operating a business which came to be known as 'D J Hire'. ‘DJ' was for disc jockey. The business provided, for hire, equipment to play music at various hotels and other venues, mainly in and around Adelaide. Such equipment could be hired with or without a disc jockey. The business was unincorporated and the defendant was its sole proprietor. He used the name Phil Davis when working as a disc jockey for the business. He used his trade qualifications as a carpenter to construct units or consoles which housed the musical equipment. The complete units and consoles were hired to various entertainment venues to be used to provide music. A typical unit comprised two turntables, an amplifier, a CD player (when CDs became available) tape deck and speakers, together with the cabinet into which all those items were fitted. Units and consoles could also have fitted in them or have added to them a variety of lighting effects.
Ms Szenkovics first became involved with Mr Phillis, and in the business with Mr Phillis, in about 1982. D J Hire ceased operating as an active business in late 1996/early 1997 after Mr Phillis obtained employment at and moved to Woomera. At that time the equipment used by D J Hire was left in the shed at the Woodville Park property and, on the evidence of Ms Szenkovics, remained there until she inspected the interior of the shed in May 1999. It remained in place until 3 July 2000 when she inspected the shed after the settlement and consent orders. The relationship between the plaintiff and the defendant ceased in about late 1998.
In about 1989 the Australian Taxation Office conducted a tax audit in respect of the business of D J Hire. Part of the reason for this audit was the fact that D J Hire had not as at that time submitted any tax returns. At that time D J Hire was ‘turning over very large sums of money’. Mr Phillis said ‘We were probably the largest DJ hire company within South Australia’. An accountant and registered tax agent, Ms Isle Gerards of Eastwood Business & Taxation Services was engaged to assist the defendant with the audit. During the audit Mr Phillis and Ms Szenkovics went through what records there were of D J Hire in an attempt to prepare taxation returns for each of the years the business had operated. Part of that exercise required the preparation of depreciation schedules for each tax year.

The audit took some years to complete. It was finally finished during about the tax year 1992-1993. As well as preparing tax returns and depreciation schedules for each of the financial years to then, journals were completed from which financial statements for the business were prepared for each financial year. After the audit concluded the business maintained these journals and prepared financial statements for each year. These included a profit and loss statement, a balance sheet, and a depreciation schedule. A tax return was also prepared and lodged. Ms Gerards continued to be the accountant for the business until it ceased operating at about the end of 1996. She prepared the final financial accounts for the business in late 1998. These were for the financial year 1997-1998.
During the relationship between the plaintiff and the defendant the plaintiff was involved in the operation of the D J Hire. The plaintiff said that she had considerable involvement in it whilst the defendant said that her involvement was minimal. He said that her involvement became less and less over the years before the business ceased operating. Both said that Ms Szenkovics was involved in the tax audit and thereafter she kept some of the books of the business. She would provide information to the accountant for the preparation of the financial statements and tax returns. She did that for the last time in August 1998. It was from that information that Ms Gerards would have prepared the last financial statements relating to the business.
The only depreciation schedules of the business produced at trial were those for the years ended 30 June 1996 (Exhibit D22) and 30 June 1998 (Exhibit P12). A consideration of the items under plant and equipment in P12 discloses that there are only three items with an opening written down value. Those items are ‘records’, for which no depreciation is claimed; ‘Watchdog (Jake)’, which has an opening written down value of $1 which is claimed in full; and ‘partitions’, which have an opening written down value of $81, a depreciation rate of 12%, and a claim for depreciation of $57. The written down value of every other item under the heading plant and equipment is nil.
Ms Szenkovics said in evidence that all depreciation schedules for each financial year that D J Hire operated were substantially the same. That is largely supported by the only other depreciation schedule tendered, that is the one as at 30 June 1996. There are some minor differences and some items had not been fully depreciated as at 30 June 1996. Ms Szenkovics said that after the tax audit was over the initial depreciation schedule remained largely unchanged by item, although the items on it would be depreciated each year, and a claim made for the amount by which they were depreciated.
I infer from the depreciation schedules tendered that D J Hire purchased no new ‘plant and equipment’ which it depreciated in its taxation returns for several years prior to June 1996. It also seems to have sold few of the items for which it was claiming depreciation.
However, the evidence was that D J Hire did purchase new equipment for the business in the years prior to it ceasing business. Where a CD player, amplifier, or speaker broke down the business would purchase equipment to replace it. It might purchase those ‘replacement’ items either new or second hand. Other items were purchased by the business which were used to replace broken or worn out items. Examples were lights and other equipment associated with lighting effects.
Ms Szenkovics said that each year after the tax audit had been completed she would gather together the documents of the business for the purpose of taking them to Ms Gerards to prepare each year’s financial statement and taxation return. She would sometimes discuss with Mr Phillis and the accountant whether items purchased during the tax year would be depreciated or claimed as replacement parts. I am satisfied, on the basis of the depreciation schedules and financial statements tendered, that such items were invariably claimed at their full cost as replacements rather than being depreciated. The tax return for the year ending 30 June 1996, for example, shows that $2,530 was expended for ‘Replacements - Components - D J Units’.
Mr Phillis said that, in addition to items purchased as replacements, there were other items of sound equipment purchased by the business in the years prior to it ceasing to operate in 1996 that were sold new to clients of D J Hire. For example, D J Hire would purchase an amplifier or a CD player new and re-sell it to a client. Not only did this occur with sound equipment but also with lights and lighting effects and other equipment such as microphones. Mr Phillis said that such items were not part of the plant and equipment of D J Hire because they were not used by the business. He referred to such items as ‘stock on hand’.
Mr Phillis said that new musical equipment or associated items purchased by the business were claimed as expenditure of the business at their full cost in the financial year in which they were purchased. In this evidence he did not draw any distinction between new equipment that was used to replace broken equipment used by D J Hire in operating its business, and new equipment that was on-sold to clients.
The full financial statements for the business for the year ended 30 June 1996 were tendered. Nowhere in those statements is reference made to ‘stock on hand’. In the profit and loss account for that year there appears two items of income. The first is ‘Fees Received’ which were the hiring fees received by the business during the financial year. The other item of income is ‘Profit on Sale of Property Plant & Equipment’. The accounts do not provide a calculation for this item. The accounts show that a Profit on Sale of Property Plant & Equipment was also made by the business in the financial year 1994-1995. The balance sheet for the business notes non-current assets as ‘property plant and equipment’, but the figures contained in the balance sheet match the depreciation schedule for that year. The depreciation schedule refers to some disposals of plant and equipment during the financial year but a capital loss is shown on the depreciation schedule in respect of those. One possible explanation for the income item of profit on sale of property plant and equipment is that that item comprises D J Hire’s profit margin in selling new musical equipment and items associated with the hiring of that equipment. Mr Phillis could not explain that item. He said he would leave that to the accountant to explain.
Ms Szenkovics gave evidence about the negotiations which occurred at court on Monday 3 July 2000. When asked in cross-examination about the plant and equipment of D J Hire she said:
What happened was Diana came back in and said to me “You can have D J Hire” because their argument was it wasn’t worth anything, so I sat back and said “Is it all there?” and she went out and asked and came back in and said “Yes, it’s all there” and I said “Absolutely everything. So that means I can have everything in the shed.” She said “Yes”, I said “Well go and check” so she did, and she came back and she said “Yes, absolutely everything. And everything from up at the shack and over at Enfield”.
Later in cross-examination she was asked to explain what it was about the defendant’s solicitor’s facsimile of 13 July 2000 she didn’t understand. She referred to certain paragraphs and said:
...because she on the day of the hearing it was like, well, is it all there - yes, it’s all there. The whole lot is there, none of it’s been moved. Marie said to me, “Has it all been sold?” I said, “no”. She said, “Have you got any money from it?” “No”. So the idea was that we would - David said he didn’t get it valued because it was worth nothing, so you could have it. If you think that it’s worth $20,000, here you take it because I was upset about the fact that he hadn’t complied and had it valued along with everything in the shed. So on the day she said “You can have it, that’s it, no drama”, so the argument was he was to bring everything down from the shack, everything over from Enfield, and make it available within that 14 day period. The idea of the inspection that afternoon was to enter the shed and make sure that it was all there and I was satisfied, because otherwise we would have been back here on the 4th, because Judge Sulan said “I don’t want to be back here arguing about a coffee table” which was rightfully so, because there was an agreement and the barristers had spend many hours going to and fro and I said to Diana, we sat in here and I said to her “Does that include my golf clubs?” “Everything,” she said, “yes.” I’m there “The fishing gear and the diving gear?” She said “Yes.” I said “You go and check.” She did. She came back and she said “Yes, he says it’s worth nothing, you can have the whole lot,” because David never provided valuations as he demanded right the way through the process, he just defied the whole system, so the reason for going to inspect everything was to make sure that I was satisfied that everything that was in the shed was rightfully there and that I was going to have it, and I was duly satisfied.
She said that her counsel (who was Diana referred to above) handwrote the consent orders and she read them. She was satisfied with the wording or paragraph 1.4 because ‘plant and equipment and D J Hire was the word used. It meant everything in the shed, because pretty well everything in the shed belonged to D J Hire, everything save and except for the fact that it didn’t come with the boat and the Bedford’. She said that neither during the mediation, nor during the negotiations on the day of trial did she see the depreciation schedule for the year ended 30 June 1998. She did not see that schedule at all until Thursday 13 July 2000. It was not put to her that she saw the depreciation schedule on 3 July 2000.
She said that her inspection inside the shed on the evening of the settlement lasted about 10-12 minutes. She walked all around the shed, including its mezzanine floor. She said in that part of the shed she saw some brand new speakers. She recognised them as being part of a purchase of equipment by D J Hire using a personal loan she had obtained from the Commonwealth Bank. During her cross-examination documents associated with this purchase were called for. They were later produced. Ms Szenkovics was not further cross-examined about this evidence. Ms Szenkovics said that at no stage during her inspection did the defendant indicate to her that only a small part of the musical equipment and associated items which were in the shed that evening were considered by him to be the subject of paragraph 1.4 of the Court’s order. Ms Szenkovics did refer to a conversation she had with the defendant after the inspection which related to plant and equipment and the order. I refer to this conversation later.
Ms Szenkovics said that one of the reasons for including a provision for her to inspect plant and equipment on the day of the settlement was so that she could satisfy herself that all the equipment associated with D J Hire she remembered seeing in May 1999 was still in the shed on 3 July 2000. She was very familiar with what was previously in the shed because she had worked there with the equipment in it for many years before. Her visit satisfied her that everything that she expected to see was there, and was where she expected to see it.
On 17 and 18 July Ms Szenkovics prepared a document at the request of her solicitors. That document became Exhibit P9 and was referred to as ‘Schedule A’. She said that she was asked to prepare a list of everything she could remember being in the shed on 3 July 2000. She said that Schedule A was the best she could do in preparing such a list. She said that there were probably items in the shed that she had not listed. She said that, with some limited exceptions, she was expecting to get all the items on Schedule A.
Schedule A was a very extensive and detailed list. Whilst she was challenged on whether she could have prepared such a list after a brief visit to the shed on 3 July 2000 she was not challenged in any significant way as to whether the schedule accurately listed items that were in the shed on that day. The case presented by the defendant was that not all the items in the shed fell within the description of furniture accumulated by the parties during the course of their relationship or of plant and equipment from the business operated by the defendant known as D J Hire.
The plaintiff called the investigation agent Mr Peters as part of her case. He said that after visiting the defendant’s Woodville Park house on what I find to be Saturday 15 July 2000 he immediately made notes. He gave his evidence by refreshing his memory from his notes. He said he had a lengthy conversation with the defendant and was advised by him that he had operated a DJ business for some years before some time in 1996. He had about twelve portable units which he was using around town and that he was the highest paid DJ in town at the time. The defendant asked him what he wanted musical equipment for and Mr Peters replied for a hotel or similar venue. The defendant advised him that the items advertised weren’t suitable for that purpose. The defendant offered him certain other items. He showed him some speakers which were not in really good condition. The front cover of one was torn but the speakers still worked, as was demonstrated by the defendant. Mr Phillis said that the speakers had been used at venues around Adelaide. The speakers were the first item written by the defendant on the envelope described as ‘2 x JBL CAB + SPEAKERS’. Mr Peters indicated that the next items - ‘4 x 15” JBL - 2 x SHOT GUNS - 4 X SLOTS’ - were all incorporated into two speaker units. He said that the defendant left the shed at some time and came back with some items from the house. They were covered in dust and the defendant described them on the envelope as ‘ASTRO RAGGIE, 2 x GOBOS and 1 x ALIGATOR’. They were coloured lights which made different patterns for the disco. Mr Peters said that the defendant then told him he could have two RCF 15” sub bass units at $600 for the pair. If he required them he should contact him that afternoon or over the weekend. Mr Peters said he saw these speakers which were next to the other speakers. He said they appeared to him to be in average condition. He said the defendant told him that he could have as much cabling as he liked.
During the conversation about price the defendant indicated to Mr Peters that the items which Mr Peters agreed to purchase for $2,400 were very cheap at that price. Their real value was considerably more than that. The defendant told Mr Peters that he was offering the items to him at a lesser price than their value because ‘he wanted to get rid of them’. He said that ‘he wanted them sold before Monday - before the weekend’. He said that Mr Phillis referred to a person whom he described with the word ‘bitch’. He said that person was coming to the house on Monday 17 July 2000 and that ‘she can pick up what shit is left’.
It was put to Mr Peters in cross-examination that what Mr Phillis actually said was that his ‘ex-partner was picking that stuff up on Monday 17 July’ and that he did not use the word ‘bitch’. Mr Peters said that the defendant definitely used the word ‘bitch’ and he could not recall him saying anything other than ‘the bitch is collecting what shit was left on Monday’. It was not put to Mr Peters that he did not see the actual RCF speaker units that were offered to him at $600 a pair.
Mr Phillis gave evidence at the hearing after I refused a submission that there was no case for him to answer. He did not have to give evidence and by doing so he has not accepted any onus in respect of the contempt charges. His evidence is to be considered in the same way as the evidence of every other witness in the case.
Mr Phillis said that in preparation for the mediation earlier of this year he asked his accountant Ms Gerards to prepare a note regarding the viability of D J Hire. He did that to establish that it had no value and therefore should not be taken into account in any settlement of Ms Szenkovics’ claim. He said that the document he obtained from Ms Gerards was tabled at the mediation. Attached to it was the depreciation schedule for the business for the year ended 30 June 1998. Ms Szenkovics agreed that she saw a copy of the ‘valuation’ at the mediation but denied that the depreciation schedule was attached to it. She denied that she saw the schedule before 13 July 2000.
Mr Phillis said that on the day of the trial negotiations with the plaintiff proceeded throughout the day. He was not directly involved in them. He gave instructions to his counsel who would then leave the room in which he spent most of the day. His counsel would return and they would discuss any proposals for settlement. He said that in respect of plant and equipment of D J Hire he instructed his counsel by reference to the depreciation schedule. He assumed that his counsel negotiated with counsel for Ms Szenkovics in respect of plant and equipment on the basis of that schedule. Whilst he acknowledged that the consent orders did not refer to the schedule, he assumed that it was drafted on the basis that the plant and equipment referred to was the plant and equipment on the depreciation schedule which was still in existence and was in the shed.
As to the furniture which was the subject of paragraph 1.4 of the order, he said that during negotiations on 7 July 2000 he did not have in his mind a clear idea of precisely what furniture was within the description of the words used in that paragraph and was the subject of the agreement. He thought, however, that there was more furniture that would be within paragraph 1.4 than in fact turned out to be the case.
He said that the plaintiff and her solicitor attended at the Woodville Park house in the evening of 3 July 2000. She opened the safe inside the house and extracted the contents except for the stamps. Those contents included some coins of some monetary and sentimental value to Mr Phillis. There followed what was described by Mr Phillis as ‘a bit of a debacle’ with members of his family being annoyed that Ms Szenkovics ‘had the audacity to take those as well’. Ms Szenkovics placed the coins in her car and then sought re-entry through the house to the shed at the back. The visit became more tense than it had already been. Members of Mr Phillis’ family refused her entry and said that if she wanted to see what was in the shed she would have to climb the fence. There was some discussion and common sense prevailed. Ms Szenkovics went through the house and entered the shed at the back.
Mr Phillis said that she was in there no longer than a couple of minutes. She was not there for 10-12 minutes as she had said. He said that he wondered why she was not looking at the storage cupboard behind the Bedford van where he said what he regarded as the relevant plant and equipment was stored. He sought to direct Ms Szenkovics to that area but he said that she never looked at the contents of that cupboard.
The day after the inspection by Ms Szenkovics and her solicitor Mr Phillis prepared his advertisement for the Trading Post. He was asked:
Q...... When you prepared the ad for the Trading Post, what did you do in terms of checking the equipment that you listed for sale with the business of D J Hire.
A...... I had already spoken to the accountant on what actually belonged to the business and what actually belonged to me. It was confirmed that all property of D J Hire was no longer - it was all property of Dave Phillis. The articles that I actually advertised were all brand new and never ever used, they were not part of the plant and equipment.
Q...... Did you check whether they were part of the plant and equipment.
A...... Yes.
Q...... How did you do that.
A...... By referring to the list that was presented all the way through.
Q...... When you say ‘list, what do you mean by that.
A...... The depreciation schedule.
Q...... Looking at Exhibit P12, is that the list you are referring to.
A...... That is the list. Plant and equipment is listed under tax code 740 on the depreciation schedule.
Q...... Why did you sell the equipment that you advertised in the Trading Post at that particular time.
A...... It was more so to cover costs to meet the order that had been agreed to on 3 July, to cover costs of the bank fees and everything else, to arrange the loans and so on to meet the sum that was agreed on in the orders.
Q...... In relation to the equipment of D J Hire that you had in the shed at Woodville, was there any equipment of D J Hire in that shed that was not on the plant and equipment schedule.
A...... Yes.
Q...... What was that equipment, the nature of it.
A...... I had some brand new speakers in boxes, as in cardboard boxes, never opened, never used; I had a couple of new amplifiers that I had bought at reasonable prices, through auctions and that, that had never been used, never put into white crates; and all the accessories. They were all brand new, never used. They were not part and parcel of the plant and equipment that was used as D J Hire.

When he was called upon to explain why he selected items which were placed outside the shed he could not do so in any logical, rational or sensible way. That is because the items were selected because they were valueless and rubbish, rather than by reference to a depreciation schedule or as the result of considering whether they were furniture accumulated by the parties.
He did not travel to Sheoak Flats until after proceedings for contempt had been commenced in this court. He untruthfully said that he had gone there before 17 July 2000. He never intended genuinely to try and comply with the Court’s order in respect of any property at Sheoak Flats.
I am satisfied of all of the above matters beyond reasonable doubt. Insofar as these findings are inconsistent with Mr Phillis’ evidence, I reject such of his evidence as being untruthful, and given in an attempt to make his actions conform with his contrived interpretation of the Court’s order.
Being so satisfied I am satisfied of the defendant’s guilt of both of the alleged contempts beyond reasonable doubt.

[2000] SADC 153

21 December 2000