Registrar of the Supreme Court of SA v Temple (No 2) No. Scgrg-99-149

REGISTRAR OF THE SUPREME COURT
OF SOUTH AUSTRALIA v TEMPLE
[2000] SASC 96

Civil

PERRY J. This judgment follows the trial before me of charges of contempt of court against the defendant Russell James Temple.
The charges are formulated in a Registrar’s summons issued under SCR r 93.03.
The summons was filed on 23 February 2000. It relates to proceedings issued against Mr Temple in 1996.[1] In those proceedings, five companies, Mane Market Pty Ltd, Mane Lion Pty Ltd, Potanc Pty Ltd, Brighton Management Pty Ltd and Flinders Management Pty Ltd claim damages from Mr Temple for alleged breaches of his duties as a director and employee of the plaintiff companies. The statement of claim alleges that Mr Temple misappropriated an amount in excess of $700,000. I will refer to those proceedings as the Mane Market proceedings.
[1] Action No 2017 of 1996.
On 31 January 1997, an ex parte interim order for a Mareva injunction was pronounced in the Mane Market proceedings. The order had the effect of restraining Mr Temple from dealing in any way with his assets.
The interim order was supplanted by an interlocutory order to much the same effect, pronounced by a Master on 20 February 1997, in the presence of counsel representing Mr Temple. That order was served on Mr Temple on 7 March 1997.
The interlocutory order, inter alia, restrained Mr Temple, his wife and any company, trust or other entity controlled by them, from disposing of, dealing in or removing out of South Australia any property or interest in property. The interests of Mr Temple and his wife in any trust were expressly referred to as an asset the disposal of which was prohibited by the order.
On 20 April 1998, Mr Temple by deed assigned his interest in a trust known as “the Temple Weeks trust” in consideration of the payment of $50000.
After the action by Mr Temple in assigning his interest in the trust had come to their attention, the plaintiffs in the Mane Market proceedings issued an application seeking the issue of a Registrar’s summons for contempt of court.
The plaintiffs in the Mane Market proceedings also sought the issue of a Registrar’s summons for contempt founded on another transaction. This was the alleged withdrawal by Mr Temple of $7000 from a TAB agency on 1 February 1997, the day after the interim injunction was pronounced.
The application for the issue of the Registrar’s summons was successful and the summons was issued by order of Debelle J.
The summons contains three counts: the first two relating to the contempts alleged to be constituted by the assignment of the interest in the trust and the withdrawal of cash from the TAB account. The third count alleges that Mr Temple was guilty of a contempt in that he “expended a sum exceeding $500 per week for other than ordinary living expenses, or for the purposes of or which included wagering, betting, the cost of participation in a game of chance or game of skill or gambling”.
When the summons eventually came on for hearing before me, I struck out the third count on the footing that the issue of the Registrar’s summons with respect to that charge of contempt was not authorised by the order made by Debelle J. My order striking out that count was subject to a condition that the prosecutors, being the plaintiff in the Mane Market proceedings, might “on or before Friday 21 April 2000, apply on notice to the defendant for an order directing the Registrar to issue a separate summons with respect to the matters raised” in the third count.
By order made on 17 February 2000, I dismissed an application by Mr Temple to dismiss the Registrar’s summons, or in the alternative, seeking an order that the summons be permanently stayed. However, due to an irregularity in service of the summons, I ordered that it be re-served with a fresh return date, namely, 27 March 2000.
On the appearance of Mr Temple before me on that date, I followed the procedure set out in SCR r 93.06, and took a plea to the two remaining charges of contempt.
He pleaded not guilty to both.
The trial then proceeded by way of affidavit evidence.[2]
[2] See SCR r 93.06(e)(i).
After the completion of the case for the prosecutor, Mr M. Gray QC of counsel for Mr Temple submitted that there was no case to answer with respect to the second count, that is, the TAB transaction. I dismissed that application, offering to give reasons for taking that course when I gave reasons for the final disposal of the proceedings.
In the events which have happened, there is no need for me to give reasons for the dismissal of the no-case submission, as the second count was ultimately not made out, as appears later in this judgment.
Mid-way through the trial, Mr Temple, by his counsel, changed his plea to a plea of guilty to the first count. I accepted that plea and recorded a finding that Mr Temple was guilty of count 1. I adjourned to a date to be fixed consideration of the penalty to be imposed on that count.
I then proceeded with the trial of the second count.
Mr Temple elected not to give evidence, but relied on a number of affidavits which were tendered on his behalf. In the result, the outcome of the second count falls to be determined on affidavit evidence alone, some tendered by the prosecutor, and some tendered by Mr Temple.
I now turn to deal more specifically with that count, and the evidence adduced with respect to it.
In the summons, the second count is particularised as follows:
“2..... At or about 10.31 am on Saturday 1 February 1997 the said Russell James Temple withdrew or caused to be withdrawn $7000 in cash from a Totalizator Agency Board account in his name at the Grosvenor Hotel agency of the Totalizator Agency Board and thereby:
2.1... removed from South Australia or caused, procured, assisted in or permitted to be removed from South Australia or from the jurisdiction of this Court, or diminished, disposed of, parted with possession of, removed from its present location or otherwise dealt with an asset or property or an interest in property of his, namely the said sum of $7000, or caused, procured, assisted in or permitted that to be done in breach of the injunction pronounced in action in this Court no 2017 of 1996 by Judge Burley Master of the Supreme Court on 31 January 1997 which by paragraph 1.1 thereof enjoined him from so doing.”
The order, breach of which is alleged in that charge, was pronounced by Judge Burley sitting as a Master of this Court on Friday 31 January 1997. I am informed that the order was made on the afternoon of that day. It appears from the face of the order that Master Burley heard the application ex parte, Mr Abbott QC appearing as counsel for the plaintiffs in the Mane Market proceedings.
For present purposes, it is sufficient to note that the operative part of the order is as follows:
“.... IT IS ORDERED AND DIRECTED:
1...... That until 5.00 pm on the 7th day of February 1997 and subject to paragraph 2 of this order the defendant and the respondent and each of them be restrained and an injunction is hereby granted restraining them whether by themselves, their solicitors, agents, servants, or their companies trusts or other entities or by any company trust or other entity controlled by them or in which they have an interest or otherwise, whether by means of the exercise of any discretion under any trust, power of appointment or other power held or granted to the defendant and the respondent or either of them as follows:
1.1... from removing from South Australia or causing, procuring, assisting in or permitting to be removed from South Australia or from the jurisdiction of this Court or selling, charging, mortgaging, encumbering, securing, diminishing, disposing of, parting with possession of, making any declaration of trust in relation to, exercising any power to vary or modify any trust deed or any interest under any trust in relation to, removing from their present locations, or otherwise dealing with [or causing, procuring, assisting or permitting to be removed from South Australia or from the jurisdiction of this Court, sold, charged, mortgaged, encumbered, secured, diminished, disposed of, removed from their present locations or otherwise dealt with] all or any of their, his, her or its assets, property, interests in property of any kind whatsoever wheresover situate within South Australia whether such assets, property or interests in property of any kind be in their, his or her own names or jointly with any other persons, companies or entities or in the names of nominees or trustees for him, her or them and without affecting the generality of the foregoing including:
1.1.1.. ......
1.1.2moneys or other valuable instrument or instruments or other valuable thing in action or in rem received by or on behalf of the defendant and the respondent or either of them being the proceeds of the sale of land formerly owned jointly by the defendant and the respondent being the whole of the land comprised in Certificate of Title Register Book Volume 5315 Folio 227.
1.1.3.. ........”
I am satisfied from the affidavits of Mr Close that he personally served Mr Temple with a sealed copy of the order of 31 January 1997 at an address at Marion at 10.00 am on Saturday 1 February 1997. At that time, Mr Temple was a director of Southern Hotels Pty Ltd, which company apparently conducted the Grosvenor Junction Hotel at Victor Harbor. Mr Temple’s brother Stephen was manager of the Grosvenor Hotel in January and February 1997, having been appointed to that position in November 1996.
Mr Temple is a professional punter, and for some time maintained an account with a TAB agency at the Grosvenor Hotel.
I am also satisfied, from the affidavit of the process server, which was not challenged at the hearing before me, that at the time when Mrs Temple was served with the order at the same address at Marion, namely 10.35 am on the same day, Mr Temple was present.
Having regard to the affidavit of Mr John Gray, an auditor employed by TAB, I find that as of 1 February 1997 Mr Temple’s account, known as a “telephone betting account”, was initially $7073.90 in credit, and that at 10.31 am $7000 in cash was withdrawn from the account.
That was the precise time at which the withdrawal was made, having regard to Mr Gray’s evidence that the “time is entered automatically by the computer system of the Totalizator Agency Board when the transaction or inquiry takes place and is extremely accurate due to the fact that the opportunity to place a bet on a race must cease before the scheduled start time of that race”. The records also confirm that the withdrawal was made at the TAB agency situated at the Grosvenor Hotel at Victor Harbor.
Mr Gray’s evidence was that to make a withdrawal from a TAB account it is necessary to present an identification card which shows the account number in relation to the particular account, and advise verbally the check number (which I assume is some sort of PIN number) which is associated with the account number, and also to sign a withdrawal slip with a signature that matches that on the back of the identification card.
Mr Gray’s evidence in that regard was both confirmed in its essentials, and to a degree extended, by two affidavits tendered, one by the prosecutors and one by Mr Temple, both sworn by Mrs Yvonne Mills.
According to the first of those affidavits, sworn on 3 March 2000, Mrs Mills was employed at the Grosvenor Hotel at the relevant time, having commenced work there in 1994. Before then she worked for the TAB as an agency officer.
In January and February 1997, she was one of the persons responsible for operating the Grosvenor Hotel TAB betting agency.
She identifies a telephone betting account withdrawal slip for $7000 dated 1 February 1997 as having been signed by Mr Temple and countersigned by her.
She says further in her affidavit:
“5..... I do not recall the circumstances of the $7000 withdrawal evidenced by the slip. However:
5.1... I do not believe that I would have dated the slip ‘1/2/97’ if it had been given to me on 31 January 1997.
5.2    Had Russell Temple handed me a signed withdrawal slip, I would, in accordance with the proper procedure, have countersigned, dated and processed it as soon as possible.
5.3... I would not have taken a withdrawal slip from Russell Temple one day and processed it the next.
5.4    I believe that Russell Temple frequently deposited large sums of money upon the result of horse races.
5.5... Russell Temple frequently made cash withdrawals from his telephone betting account; he also operated his account as a betting account.
5.6    I could not have authorised the removal of $7000 in cash from the Hotel safe. That would have had to have been authorised by the Hotel Manager, or whoever was the duty manager at the time of the transaction.
5.7... I believe that in February 1997, the Hotel Manager at the Grosvenor Hotel was Stephen Temple, Russell Temple’s brother.”
In her second affidavit, sworn 24 March 2000, Mrs Mills states that she does not recall who handed her the withdrawal slip on the morning of Saturday 1 February 2000. She goes on to observe, “But I am reasonably certain that it was not Russell Temple.” She says further that on that morning she opened the agency at 10.00 am:
“6..... ... I cannot say whether I received the TAB withdrawal slip in issue at 10.00 am or 10.30 am. The place was busy with people waiting to place their bets at the opening time and it is possible that I received a withdrawal slip from Russell Temple at 10.00 am and processed it later at 10.30 am, but I cannot now recall.
7.My only clear recollection is that I had a withdrawal slip signed by Russell Temple, because if it had not been a signed withdrawal I would not have processed it. I was familiar with Russell Temple’s signature and recognised his signature on the slip.
8...... I have never processed a withdrawal slip without a signature.
9.Once I processed the withdrawal, the money would have been removed out of the TAB safe at the hotel by whoever was in charge. I do not know what happened to the money once I processed with withdrawal.
10.... I countersigned the withdrawal at the time of processing it.”
It is the act of withdrawal of the $7000 in cash from the TAB account which is asserted by the prosecutor to be the act constituting the contempt of court. The prosecutor contends that, given the fact that the sealed copy of the order was served at 10.00 am, and the computer record of the time of the withdrawal of the $7000 is shown at 10.31 am, the irresistible inference which should be drawn by the Court is that the withdrawal was prompted by the service of the order, and must be taken to have been made in defiance of it.
There are obvious difficulties in accepting that submission.
In the first place, it would have been physically impossible for Mr Temple to have attended at Victor Harbor to present the withdrawal slip in time for the withdrawal to be effected at 10.31 am, if service was effected only a half an hour beforehand. The fact that he was not at Victor Harbor at 10.31 am is in any event put beyond doubt by the evidence to which I have referred that he was present at Marion when Mrs Temple was served with the order at 10.35 am.
It must be borne in mind that the fact that the order had been made was unlikely to have been known to Mr Temple before he was served with it, given that the order was made at an ex parte hearing at which he was neither present nor represented.
The order is expressed in complicated, indeed somewhat convoluted, language which it would take some time for a lay person to read and understand fully.
The answer may well be that after reading the order sufficiently to obtain an understanding of its scope, Mr Temple telephoned Mrs Mills or someone else at the hotel for the withdrawal to be effected, perhaps with the use of a pre-signed blank slip. While I am suspicious that something like that might have occurred, I accept that any such suspicion could amount to no more than speculation.
I am satisfied beyond reasonable doubt that in some way or other Mr Temple caused the withdrawal to be made. But I cannot be satisfied beyond reasonable doubt that he set the process in motion which led to the withdrawal, after service of the order at 10.00 am on the day in question.
In reaching that view, I have not overlooked the fact that Mr Temple did not give evidence and that the circumstances in which the withdrawal was made would unquestionably be matters within his own knowledge.[3] I note, however, that others, such as the manager of the hotel at the time, who would have had to authorise the withdrawal of the moneys from the hotel safe, could have been called by the prosecutors. Furthermore, evidence was not led to demonstrate other movements in the account, leading up to the withdrawal in question. It may well be, for example, that there was a series of withdrawals in close succession before the order was served, in which case the significance of the $7000 withdrawal would be less.
[3] I do not pause to consider whether the principle identified in Weissensteiner v R (1993) 117 ALR 545 and in RPS v R [2000] HCA 3 (3 February 2000), is of application.
On a fine balance, and having regard to the fact that the criminal onus of proof applies,[4] I cannot be satisfied beyond reasonable doubt that the withdrawal was made by Mr Temple with full knowledge of the relevant terms of the order pronounced on 31 January 1997.
[4] See Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 and Witham v Holloway (1995) 131 ALR 401.
In those circumstances, it is unnecessary to address the question whether, if I had been satisfied as to those matters, the breach of the order should properly be regarded as contumelious, in the sense in which that word has been used in the authorities dealing with contempt of court.
In those circumstances, the charge of contempt of court based upon Mr Temple’s involvement in that transaction must be dismissed.
Of course, that may not be the end of the matter. I am satisfied on the balance of probabilities that Mr Temple did cause the withdrawal to be made with prior knowledge of the order. It may well be that in those circumstances, on an appropriate application being made to that end in the Mane Market proceedings, I should nonetheless order him to pay back the moneys.[5]
[5] Steven Gee QC, Mareva Injunctions and Anton Piller Relief, 3rd ed, p 235-6.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

Action No 2017 of 1996.
See SCR r 93.06(e)(i).
I do not pause to consider whether the principle identified in Weissensteiner v R (1993) 117 ALR 545 and in RPS v R [2000] HCA 3 (3 February 2000), is of application.
See Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 and Witham v Holloway (1995) 131 ALR 401.
Steven Gee QC, Mareva Injunctions and Anton Piller Relief, 3rd ed, p 235-6.

[2000] SASC 96

12 April 2000