Registrar of The District Court v Van Der Linden & Anor - [2005] SADC 53

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
REGISTRAR OF THE DISTRICT COURT v VAN DER LINDEN & ANOR
Judgment of His Honour Judge Lee
20 May 2005
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - CONTEMPT - WHAT CONSTITUTES - DISOBEDIENCE OF ORDERS OF COURT
Summons for contempt of court issued by Registrar of District Court – defendants in breach of order restraining them from interfering with quiet enjoyment of property by plaintiff to proceedings under De Facto Relationships Act – each defendant fined $1,000.
De Facto Relationships Act 1996; Rule 93.08, referred to.
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, considered.

REGISTRAR OF THE DISTRICT COURT v VAN DER LINDEN & ANOR
[2005] SADC 53

In this matter, the first and second defendants have entered pleas to charges laid by the Registrar of this Court by way of a summons for contempt. The charges relate to breaches of an order with injunction made by Judge Kelly on 15 July 2004. The order was granted upon the application of a plaintiff to proceedings under the De Facto Relationships Act 1996 (whom I will hereafter describe as “the plaintiff”), and was in the following terms:
“1. That until final judgment in this action or further order of this Court the Defendants and each of them, their servants or agents be restrained and an injunction be granted restraining the Defendants, their servants or agents from:
A.Approaching or remaining in the vicinity or interfering with the plaintiff’s quiet enjoyment of the property situated at 486 Yatala Vale Road, Yatala Vale in the State of South Australia being the whole of the land comprised in Certificate of Title Register Book Volume 5451 Folio 807 save:
(a)for the purpose of collecting from and returning to the property or performing the maintenance and repairs upon any motor vehicles used by the Defendants in the course of the business operated by the Second Defendant;
(b)for the purpose of attending at the property on one occasion every 3 (three) months for the purpose of inspection the property and provided:-
(i) 7 (seven) days prior written notice in writing of the defendants’ intention to exercise it or their right to inspect the property is given to the plaintiff’s solicitor; and
(ii) under no circumstances shall the Defendants or their servants or agents be permitted to enter the dwelling occupied by the Plaintiff;
(c)Attending for the purpose of collecting and returning the child of the Plaintiff and the First Defendant for contact.”
The conduct alleged by the Registrar to be in breach, and the pleas of each of the defendants, are as follows:
1^st defendant     2^nd defendant
A.On the 5^th January 2005 approach and remain
in the vicinity of the property situated at 486
Yatala Vale Road, Yatala Vale in the State of
South Australia being the whole of the land
comprised and described in Certificate of Title
Register Book Volume 5451 Folio 807 (“the
property”).  guilty                guilty
B.On the 5^th January 2005 interfere with the
Plaintiff’s quiet enjoyment of the property
in that you:-
1. caused a truck and a van to be parked
alongside of a building on the property used
by the Plaintiff to operate her business of a
Dog Grooming Parlour (“the Parlour”) so as
to prevent access thereto by the Plaintiff.             guilty                not guilty
2. deflated the tyres of the van in order to
prevent it being moved.  not guilty          not guilty
3. removed various items used by the Plaintiff
in her said business from the Parlour and
placed them in a stable on the property.                 guilty                guilty
4. disconnected and removed water pipes on
the west wall of the stable on the property
thereby cutting off the supply of water to
the Parlour.  guilty to            guilty
  disconnecting
the water pipes
5. removed the PVC pipe used to enable water
to flow into an external bath which stored
waste water.  guilty                guilty
C.On 6^th January 2005 approach and remain in the
vicinity of the property.  guilty                guilty
D.On 5^th or 6^th January 2005 did interfere with the
plaintiff’s quiet enjoyment of the property in
that you:-
1. locked the door of the Parlour thereby
preventing the plaintiff from gaining access
thereto.  not guilty          guilty
2. removed fuses from the fuse box on the south
wall of the Parlour thereby disconnecting the
supply of electricity thereto.  guilty                not guilty
3. disconnected the electricity supply to an
external security light on the property.                  not guilty          not guilty
After the pleas had been entered, counsel for the plaintiff informed me that his client did not wish to pursue the charges to which pleas of not guilty had been entered.
The circumstances which gave rise to the summons were as follows.
At all relevant times, the property which was the subject of Judge Kelly’s order was owned either by the first defendant, or by the first defendant’s parents, or by the second defendant. The second defendant is a company of which the first defendant’s parents are the directors. The second defendant is the current owner of the property. The property is a little less that one acre in size, and comprises a house and various other buildings.
The plaintiff and the first defendant commenced to live together in a de facto relationship on the property from about early 1992. The plaintiff ran a dog grooming business from one of the buildings, and the first defendant’s parents used another of the buildings to store the vehicles of a family building business. The first defendant was and is employed by the second defendant in the business.
The plaintiff and the first defendant separated in January 2003, and the plaintiff continued to reside at the property with the one child of the relationship. She brought proceedings under the De Facto Relationships Act in November 2003, and joined both defendants.
The breaches occurred in the context of the plaintiff’s continued occupation of the property after her separation from the first defendant. It is common ground that the defendants consented to Judge Kelly’s order, but that the order was not drawn up and served with the endorsement warning what the consequences of a breach would be.
On 13 January 2005, Judge Rice dispensed with service of Judge Kelly’s order and directed the Registrar to issue the summons. His Honour also ordered that the defendants meet the cost of restoring the property to allow the plaintiff to resume her dog grooming business. Counsel for the defendants say that the defendants complied with that order, and that there was little disruption to the plaintiff’s business because she was away on holiday until 10 January 2005. Counsel for the first defendant asserts that his client acted to stop the plaintiff’s business out of a sense of loyalty to his father, and as the result of concerns that the plaintiff was conducting the business without insurance and in breach of council bylaws. Through their counsel, the defendants offer their apologies to the Court.
I turn finally to the question of penalty. Rule 93.08 of the District Court Rules empowers the court to punish a contempt of court by committal to prison or fine or both, or by the imposition of a bond. The underlying function of the contempt power is to uphold and protect the administration of justice: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98. Although foolish things are often said and done in the heat and emotion of de facto relationship disputes, the conduct of the defendants here was pre-meditated and committed in full knowledge of the order. I treat the defendants as equally culpable. I consider that a fine would be the appropriate penalty in all of the circumstances.
The order of the court is that the first defendant be fined the sum of $1,000 and that the second defendant be fined the sum of $1,000. I will hear their counsel with respect to time to pay.