Registrar of the Supreme Court of SA v Pickering No. Scciv-01-302

[2001] SASC 114

REGISTRAR OF SUPREME COURT OF SOUTH AUSTRALIA

V
GREGORY JAMES PICKERING

[2001] SASC 114

Civil (Ex Tempore)

1. LANDER J.           This is an application by Smoothpool Nominees Pty Ltd and Dadeeton Pty Ltd for costs in respect of an application to direct the Registrar of this Court to issue a summons, in the form of a Form 28, to Mr Gregory James Pickering alleging him to be in contempt. The application for costs is opposed by Mr Pickering.

2. This is but one more proceeding between these parties, in relation to events which occurred in 1981, and which culminated in a trial, in which I gave judgment on 10 August last year, and which since has given rise to a number of applications by the plaintiffs to enforce the orders which I then made.

3. No order has been made on this application because the circumstances which gave rise to the application no longer exist.

4. It is necessary, however, to have some regard to the proceedings and their history in order to understand the conclusion at which I have arrived. These proceedings were commenced on 5 February 2001 apparently by the Registrar of the Supreme Court of South Australia as plaintiff and Mr Pickering as defendant. An inter partes summons was issued on behalf of the Registrar of the Supreme Court, directed to Mr Pickering, seeking to issue a registrar’s summons for contempt under rule 93.03.

5. Clearly enough the wrong parties have been identified in the inter partes summons. The Registrar was not the appropriate person to act as plaintiff. In an application for the issue of a Registrar’s summons under rule 93.03 it is for the party who is aggrieved by the actions of the proposed contemptor, who must make the application. In those circumstances, the proceedings are irregular in that Smoothpool Nominees and Dadeeton Pty Ltd (the companies) are the appropriate applicants.

6. Mr Walsh QC, who appeared for those companies, said that if the matter had proceeded further the proceedings would have been sought to be corrected, to join the correct parties and disjoin the Registrar.

7. Whilst this is an application for issue of a Registrar’s summons, based on the failure of Mr Pickering to comply with an order made by me on 10 August 2000, that order has not been exhibited on this application. Moreover, the application does not identify precisely the act of contempt, or the particulars of the charge of contempt complained of. Not only is the order which I made not exhibited but I am told, and about this there is no dispute, the order does not bear the endorsement required under rule 84.04(3A) of the Supreme Court Rules and does not have an endorsement warning Mr Pickering of the possible consequences of his failure to obey the order.

8. Notwithstanding the absence of the order of 10 August 2000 as an exhibit, the solicitor’s affidavit supporting the application refers to it. The order of 10 August 2000 required Mr Pickering to take all steps necessary to effect the transfer of an abalone licence, registered in his name, to Dadeeton Pty Ltd. It was a further term of the order that Smoothpool Nominees Pty Ltd pay money to Mr Pickering and that Mr Pickering pay money to Dadeeton Pty Ltd.

9. Mr Pickering’s obligation to execute any documents to effect the transfer of the authority from him to Dadeeton Pty Ltd did not arise until at least 6 December 2000, when the payment of money by Smoothpool Nominees Pty Ltd, which was provided for in the order, was made. When that payment was made, the order required Mr Pickering to execute a transfer and all other documents necessary to effect the transfer of the licence to Dadeeton Pty Ltd. It is clear from Mrs Stevens’ affidavit that after payment of the moneys, Mr Pickering failed to comply with his obligations and did not execute the application to transfer the abalone fishing licence.

10. In due course, because the order allowed, the Registrar executed the application for a transfer. However, regulation 9(4)(b) of the Scheme of Management (Abalone Fisheries) Regulations 1991 provides that any application for a transfer of a licence must be accompanied by a form of return as required by the regulation. That form of return is called a catch return. That catch return could not be executed by the Registrar because it required first-hand knowledge of the fishing which had been carried out in the period up to the date of the execution of the catch return. Whilst the Registrar was able to execute the application to transfer the licence, he was not, therefore, able to execute the form of return required by the regulation, namely the catch return.

11. By letter dated 19 January 2001, the companies’ solicitors asked Mr Pickering’s solicitors to provide them with the form of return referred to in regulation 9(4)(b), completed up to the date upon which the Registrar had executed the application (21 December 2000). Other documents were sought and so also was an executed copy of the application for the transfer of the licence itself. The companies’ solicitors received no reply to that correspondence and on 23 January 2001 sought a response from Mr Pickering’s solicitors. Again, there was no response to that letter. On 25 January they sought a further response again. There was no reply to any of those three letters and, as a consequence, these proceedings were issued on 5 February 2001.

12. On 13 February 2001, Mr Pickering’s solicitors wrote to the companies’ solicitors advising them that they had received the inter partes summons in these proceedings, Mrs Stevens’ affidavit, and a draft of a Registrar’s summons. They advised her that they could not understand why it was that there was any allegation of contempt. They said that the Registrar of the court was authorised to sign certain documents for and on behalf of Mr Pickering and their understanding was that he had executed those documents. They asked that the proceedings be withdrawn.

13. That letter was responded to by Mrs Stevens (the plaintiffs’ solicitor) on 14 February 2001, pointing out, amongst other matters, that Mr Pickering had not provided the required catch returns pursuant to regulation 14 and, more particularly, regulation 9(4)(3).

14. I think it may be inferred, as I said to Mr Clayton during argument, that Mr Pickering only responded to his obligations to comply with my orders by reason of this application. In my opinion he was in breach of his obligations to provide the documents necessary to effect the transfer of the licence probably from about 21 December 2000. When I say ‘he was’, I am talking of a finding of a prima facie case. Mr Pickering did not seek to adduce any evidence in response to this application and, on an application for a Registrar’s summons, it would be necessary to treat the application as if it were a committal proceeding and for the court to determine that a case had been made out for the issue of a summons. My findings ought to be understood in that way.

15. I am satisfied that Mr Pickering failed to comply with my order in so far as he failed to provide catch returns in response to the requests of the companies’ solicitors on 19, 23 and 25 January 2001. I am also satisfied that those catch returns were required to be produced by Dadeeton Pty Ltd to effect the transfer from Mr Pickering to Dadeeton Pty Ltd of the licence. I am further satisfied that Mr Pickering’s failure to provide those catch returns delayed the carrying out of my orders of 10 August.

16. On 15 February I am advised that Strachan Carr, Mr Pickering’s solicitors, wrote to the companies’ solicitors advising that the catch returns were forwarded to the director yesterday. I am further advised that the Department of Fisheries received the catch returns, in respect of the months of December 2000 and January 2001, on 19 February 2001. Clearly enough, and I find, there was a failure by Mr Pickering to provide the catch returns for December in January.

17. Apart from the procedural defects I shall address, I am satisfied that if I had been called upon to consider this application for the issue of a Registrar’s summons on the information which I have before me now, and on no other information, I would have made an order of some kind for the issue of such a summons. In that respect the merits are all with the companies.

18. However, there are a number of procedural defects in the proceedings which Mr Clayton has relied upon. First, the wrong parties have been identified. Secondly, the order of 10 August was not served: r 84.04(3). Thirdly, it did not carry with it the endorsement required by rule 84.04(3A). Fourthly, the application does not state precisely the grounds of contempt sought to be made out.

19. The Rules allow me to make orders for the purpose of giving effect to the Rules and, in particular, dispensing with compliance with the Rules: r 3.04.

20. I could have made an order disjoining the Registrar and joining the companies, Smoothpool Nominees Pty Ltd and Dadeeton Pty Ltd.  If I had been called upon to hear the application for the issue of a summons I could have made an order under rule 84.04(3), relieving the companies of the obligation to serve the order of 10 August personally upon Mr Pickering: r 84.04(3). I could also have made order excusing the companies for failing to serve an order carrying an endorsement warning Mr Pickering of the possible consequences of his failure to obey the order: r 84.04(3A).

21. Lastly, I could have required the companies to identify more particularly the contempt of court which ought to be particularised on any registrar’s summons which might issue. All of those orders I am satisfied I am empowered by the Rules of Court to make.

22. The question is, in the circumstances of this case, would I have made those orders? In a sense the consideration of this application requires me to hear the application for the issue of the registrar’s summons and to determine whether, if I had heard it, I would have made an order for the summons to issue.

23. The authorities, including Von Doussa v Owens (No. 2) (1982) 30 SASR 391 and Rogerson v Ichia (1995) 123 FLR 126, make it clear that the powers to which I have referred are available. The decisions of the single judge and the Full Court of the Northern Territory make it clear that those powers should not be exercised in cases such as this, except in exceptional circumstances, because of the gravity of the charges which might be brought against a party.

24. A charge of contempt is a very serious charge and in the circumstances of a case such as this, if the party continued to refuse to comply with the order after the Registrar’s summons had issued, could lead to the imprisonment of the person charged for failure to comply with an order.

25. I have no doubt if the matter had been heard, I would have been prepared to allow an application to disjoin the Registrar, and join the companies as plaintiffs. I think, however, I would not have directed the issue of the Registrar summons for contempt in circumstances where I was not satisfied that Mr Pickering was aware of his obligations to execute catch returns for presentation to the Director to effect the transfer of the licence from Mr Pickering to Dadeeton Pty Ltd. I think I would have required the companies to satisfy me that Mr Pickering was aware of the effect of the order of 10 August, and aware of the consequences of his failure to execute those catch returns.

26. In those circumstances, I think on the information presently before me, I would have refused the application until such time as there had been compliance in all respects with r 84. Moreover, I would also have required the companies to identify, with some particularity, the nature of the alleged contempt to allow Mr Pickering to make his defence to the charge.

27. In those circumstances, I think I would have concluded that the application directing the Registrar to issue a summons would have failed on the information before me.

28. It follows, notwithstanding that the application was based on what I believe was the failure of Mr Pickering to comply with the obligations contained in my order of 10 August 2000, the application for costs must be dismissed.