Registrar of the Supreme Court v Robinson - [2008] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
REGISTRAR OF THE SUPREME COURT v ROBINSON
[2008] SASC 31
Judgment of The Honourable Chief Justice Doyle
20 February 2008
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - CONTEMPT - WHAT CONSTITUTES - DISOBEDIENCE OF ORDERS OF COURT - INJUNCTIONS
Contempt proceedings - trial of contempt charge for breach of order of court - whether defendant breached injunction restraining him from holding himself out as being entitled to carry on business as a building work contractor without a licence authorising him to do so.
Held: defendant guilty of contempt of court - defendant's conduct deliberate breach of order of court.
Building Work Contractors Act 1995 (SA) s 3(1), 6(1); Supreme Court Civil Rules 2006 (SA), referred to.

REGISTRAR OF THE SUPREME COURT v ROBINSON
[2008] SASC 31
Civil
DOYLE CJ
Introduction

On 12 October 2006 the Registrar of the Supreme Court issued a summons requiring Mr Robinson to answer a charge of contempt of Court. The summons alleged that Mr Robinson was in breach of an order of the Court, an interlocutory injunction ordered by Judge Withers, a Master of the Supreme Court, on 5 May 2006.
The injunction was ordered on an application by the Commissioner for Consumer Affairs (‘the Commissioner’). The application was made, in proceedings instituted on 20 December 2005, by the Commissioner against Mr Robinson. The Commissioner alleged that Mr Robinson had been carrying on business as a building work contractor without a licence authorising him to do so as required by section 6(1)(a) of the Building Work Contractors Act 1995 (SA) (‘the BWC Act’), and that Mr Robinson had been holding himself out as entitled to carry on business as a building work contractor without a licence as required by section 6(1)(b) of the BWC Act.
The injunction relevantly restrained Mr Robinson from:
1Holding himself out as being entitled to carry on business as a building work contractor, and
2Agreeing to perform for fee or reward building work within the meaning of the term ‘building work’ as defined in section 3(1) of the BWC Act.
Background
The following matters are not disputed. I make findings as follows.
On 6 July 2006 a related prosecution instituted by the Commissioner against Mr Robinson was finalised. A Magistrate found Mr Robinson guilty of charges that had been brought against him. The judgment of the Magistrate, tendered at the trial of the contempt charge, records that Mr Robinson was charged on two separate complaints.
The first complaint dated 14 July 2005 contained seven charges, five counts of carrying on a business as a building work contractor without being authorised by a licence to do so, pursuant to section 6(1)(a) of the BWC Act and two counts of holding himself out as being entitled to carry on business as a building work contractor without being authorised by a licence to do so pursuant to section 6(1)(b) of the BWC Act.
The second complaint dated 29 August 2005 contained five counts of holding himself out as being entitled to carry on business as a building work contractor without being authorised by a licence to do so pursuant to section 6(1)(b) of the BWC Act.
Mr Robinson was convicted on all counts and fined $18,000.00. Mr Robinson was present when the Magistrate gave his decision.
On 8 September 2006 the Commissioner filed a notice for specific directions in the action in which the injunction was ordered, asking that the Court direct the Registrar to issue a summons instituting contempt proceedings against Mr Robinson. The Commissioner claimed that Mr Robinson had breached the injunction by holding himself out as a person entitled to carry on business as a building work contractor and by providing Mr Mudrakovic with a quotation for the supply and installation of, and associated council approval for, a carport and verandah.
On 14 September 2006 Mr Robinson was served with the notice for specific directions and the affidavits and exhibits supporting the contempt allegations.
Mr Robinson did not attend court on 15 September 2006. The Court directed that the Registrar issue a summons for contempt and cause it to be served on Mr Robinson for refusing to obey a Court order.
The summons was issued on 12 October 2006 in separate proceedings now before me. It required Mr Robinson to attend at the Supreme Court to answer the contempt charge on 10 November 2006. The summons issued on 12 October 2006 was not served on Mr Robinson.
On 10 November 2006, the return date of the summons of 12 October 2006, Mr Robinson did not attend court. A Judge granted permission to the Registrar to issue a fresh summons and directed that the matter proceed under the Supreme Court Civil Rules 2006 (SA).
A fresh summons was issued on 15 November 2006 requiring Mr Robinson to attend the Supreme Court on 9 February 2007 to answer the contempt charge.
On 16 November 2006 Mr Robinson was served with the summons.
Mr Robinson did not attend court on 9 February 2007 and the matter was adjourned to 15 February 2007.
Mr Robinson did not attend court on 15 February 2007 and the Court ordered that a warrant be issued for his arrest. Mr Robinson was not arrested for some time, for reasons not presently relevant.
On 22 November 2007 Mr Robinson appeared before a Judge by video link from Port Augusta. Mr Robinson was in custody having been arrested that day.
The matter resumed on 23 November 2007 and Mr Robinson was granted bail. The matter was adjourned to 7 December 2007 for a directions hearing.
The matter came before me for directions on Friday 7 December 2007 at 10:00am. Mr Robinson did not attend the court. He telephoned the Supreme Court Civil Registry shortly before 10:00am. He said he was in Port Augusta, that he would not be attending court, and that he had an appointment to see a doctor. Mr Robinson’s bail agreement dated 23 November 2007 was cancelled by me and I ordered that a warrant for his arrest be issued.
The warrant was executed on 10 December 2007. Once in custody Mr Robinson appeared by video link from Port Augusta. The hearing of the contempt charge was fixed for 20 December 2007 at 10:15am and Mr Robinson was released on bail. I told Mr Robinson that the trial of the charge would proceed on 20 December 2007.
Trial of the contempt charge
The contempt charge was tried by me in the Supreme Court on 20 December 2007.
At trial Mr Soetratma appeared for the Registrar. Mr Robinson appeared without legal representation.
Mr Soetratma called three witnesses. Mr Robinson cross-examined each of the witnesses and gave evidence in his defence.
The case for the prosecution
Mr Thredgold, an investigator with the Office of Consumer and Business Affairs, gave evidence that on 10 May 2006 he attended at Mr Robinson’s house, spoke with Mr Robinson and served him with a copy of the injunction, of Judge Withers' reasons granting the injunction and of a letter from the Crown Solicitor’s Office.
Mr Robinson did not object to these documents being admitted into evidence and did not deny that Mr Thredgold had served him with the documents.
I accept Mr Thedgold’s evidence.
Mr Parry, an investigator with the Office of Consumer and Business Affairs, gave evidence that he interviewed Mr Mudrakovic on 10 July 2006. Mr Parry said that Mr Mudrakovic gave him a business card with Mr Robinson’s name on it. There was a price written on the back of the business card, which the prosecution alleged was a price for the supply of material and construction of a carport extension and verandah.
I accept Mr Parry’s evidence.
Mr Mudrakovic gave evidence that on 5 July 2006 he telephoned a number shown in an advertisement published in the City of Salisbury Business and Community Phone Book 2006.
Mr Mudrakovic said he spoke with a man who identified himself as Maurice. Mr Mudrakovic said the man spoke with what Mr Mudrakovic thought was an Irish accent. Mr Mudrakovic explained to Maurice that he wanted to have a verandah built at the back of his house and that he wanted to extend the carport. He said that he gave Maurice some rough measurements for the building work.
Mr Mudrakovic said that the man who identified himself as Maurice gave him rough quotation of about $1200 for the carport and about $1220 for the verandah. Mr Mudrakovic said that Maurice told him that the prices were for the supply and erection of the carport and verandah.
Mr Mudrakovic said he made an appointment to meet with Maurice and that Maurice was to give him a written quotation for the supply of materials and the construction of the verandah and the carport extension. Mr Mudrakovic said that it was agreed that Maurice would come to his house on Thursday 6 July 2006 between 11:00am and 12:00pm.
Mr Mudrakovic said that Maurice did not keep his appointment on Thursday 6 July 2006.
Mr Mudrakovic told the court that at about 12:30pm on 7 July 2006 a person who introduced himself as Maurice came to his door. He said that Maurice told him he had come to give Mr Mudrakovic a quotation. Mr Mudrakovic said that the man spoke with the same accent as the person to whom he had spoken over the telephone on 5 July 2006.
Mr Mudrakovic identified Mr Robinson as the man who came to his door on 7 July 2006.
Mr Mudrakovic said that he took Mr Robinson to the area where the verandah and carport extension were to be built, and that after inspecting the site Mr Robinson wrote a price on the back of a business card. Mr Robinson gave the card to him.
Mr Mudrakovic was shown the business card produced by Mr Parry. It had written on its face, ‘Maurice Robinson Carports and Verandahs’ and two phone numbers and an address. He said that prices that appeared on the card were handwritten on the card by Mr Robinson, and that they were a quotation for the supply and construction of a verandah and carport extension. The price for the verandah measuring 8.8 meters by 3.63 meters was $2220.00. The price for the carport extension measuring 6 meters by 3 meters was $1260.00. The word ‘council’ and the price $130.00 also appeared on the card. Mr Madrakovic said that when he asked Mr Robinson about council approval, Mr Robinson said he would handle it and amended the quotation to include an item marked ‘council’ and the price $130.00.
Mr Mudrakovic said that he had given the business card to an investigator from the Office of Consumer and Business Affairs.
The business card was admitted into evidence without objection from Mr Robinson.
Mr Mudrakovic did not have his carport extension and verandah built by Mr Robinson. He hired another contractor.
In cross-examination Mr Robinson asked Mr Mudrakovic about the terms of payment he had discussed with Mr Mudrakovic when he attended the house. Mr Mudrakovic said that Mr Robinson had asked that he be paid one third of the total price as a deposit before the work began, one third of the total price when the materials arrived and the balance when the job was completed.
When asked if he had been told by Mr Robinson that he would actually carry out the building work himself, Mr Mudrakovic said that Mr Robinson’s quotation had been to ‘supply and erect’, and confirmed that all of the payments were to be made to Mr Robinson.
The case for the defence
In his defence Mr Robinson focussed on the distinction between the supply of building materials and the erection of the structures.
Mr Robinson gave evidence. He called no other evidence.
In his evidence, Mr Robinson said that he had experience manufacturing and supplying carports, verandahs and garages, but that for the last 20 years he had been simply supplying building materials, and referring customers to licensed builders when an order was placed.
He agreed that the prices written on the back of the business card were written by him and were for the supply and erection of the carport extension and verandah, but said that if Mr Mudrakovic had placed an order he would have given him the name and telephone number of a licensed builder who could erect the structures. He said, in effect, that Mr Mudrakovic would have to enter into a separate contract with a licensed builder, with whom Mr Mudrakovic would have to deal, for the building work.
Mr Robinson said that because he experienced difficulty with his sight and in walking he was not physically capable of erecting the carport extension and verandah. He agreed that he had been accompanied by another, younger, man. He denied that he had employed the younger man to help him with any building work.
In answer to further questions, Mr Robinson said that he was able to quote a price for materials and erection because he knew from experience the prices that a builder would charge to erect the structures. He told the court that he would arrange for the customer to pay him paid a third of the total price as deposit, a third on delivery of materials, with the balance to be paid to the licensed builder when the erection of the structures was complete.
Findings
I have considered all of the evidence. I find Mr Robinson guilty of contempt of court.
I am satisfied beyond reasonable doubt that Mr Robinson breached the injunction by holding himself out to Mr Mudrakovic as being entitled to carry on business as a building contractor, and by offering to carry out building work. The work in question was the erection of the verandah and carport.
I accept the evidence of Mr Mudrakovic. I find that the man he spoke with by telephone on 5 July 2006 and the man that attended his house on 7 July 2006 and provided him with a quotation for supply of material and construction of a verandah and carport extension was the defendant, Mr Robinson.
I find that Mr Robinson provided Mr Mudrakovic with a quotation for the supply of materials and for the construction of the verandah and carport extension and that the quotation for the supply of material and the construction of the verandah and carport was a quotation for ‘building work’ within the meaning of section 3(1) of the BWC Act.
I find that Mr Robinson offered to and was going to organise the building work. It is not necessary to make a finding as to whether or not Mr Robinson intended to erect the structures himself, with suitable assistance, or whether he would have subcontracted the work I have considered Mr Robinson’s evidence on this point. I reject his evidence that, if his price was accepted, he intended to refer Mr Mudrakovic to a licensed builder with a view to Mr Mudrakovic entering into a separate contract with the builder, Mr Robinson doing no more than provide the materials. I find Mr Robinson’s evidence that he quoted a total fixed price, based on his knowledge of the prices that would be charged by the licensed builders to whom he would refer Mr Mudrakovic, to be implausible. Further, if he had intended to organise for the work to be carried out in that way, I am satisfied that he would have explained the process to Mr Mudrakovic when he gave the quotation. There was no evidence from either Mr Robinson or Mr Mudrakovic to suggest that Mr Robinson did explain that Mr Mudrakovic would have to contract separately with a licensed builder.
In short, I am satisfied beyond reasonable doubt that Mr Robinson held himself out to Mr Mudrakovic as entitled to carry out the work in question, and that he offered to carry out the work or to have it carried out in return for payment of the amount written on the business card.
I find that Mr Robinson was well aware of the effect of the restrictions placed on him by the injunction. The findings in the Magistrates Court are relevant to that matter, and that is their only relevance. But in any event, his evidence to me shows that he is aware of the effect of the injunction.
It follows that this was a deliberate breach of this Court’s order.