Ronowska v Kus (No 2)

Case [2012] NSWSC 817


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Ronowska v Kus (No 2) [2012] NSWSC 817
Hearing dates:27 June and 20 July 2012
Decision date: 27 July 2012
Jurisdiction:Equity Division
Before: Pembroke J
Decision:

See paragraph [91]

Catchwords: CONTEMPT- deliberate obstruction of course of justice - conduct inconsistent with court order - knowingly false evidence concerning that conduct - intention to prevent plaintiff having benefit of judgment
CONTEMPT- distinction between civil and criminal contempt
CONTEMPT - distinction between perjury and contempt
CONTEMPT - avoidance of personal service - personal service not indispensable - substituted service available in contempt proceedings
CONTEMPT - absence of contemnor - discretion whether to proceed with hearing and sentence in his absence
CONTEMPT- sentencing considerations - fixed or indefinite term of imprisonment
CONTEMPT - warrant for committal to a correctional centre
COSTS - power to award indemnity costs in contempt proceedings
Legislation Cited: Civil Procedure Act 2005
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Family Law Act 1975
Powers of Attorney Act 2003
Supreme Court Act 1970
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Abduranamoski v Abduramanoska [2005] FamCA 88
ACCC v Jones (No 3) [2010] FCA 908
ACCC v Levi (No 3) [2008] FCA 1586
ACCC v World Netsafe Pty Ltd [2003] FCA 1501
ASIC v Matthews [2009] NSWSC 285
Attorney-General for New South Wales v Whiley (1993) 31 NSWLR 314
Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483
Australasian Meat Industries Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Australian Securities & Investments Commission v Michalik [2004] NSWSC 1259
Bank of Singapore (Australia) Ltd v Tschannen (New South Wales Supreme Court, Young J, 7 April 1992, unreported)
Circuit Finance Australia Ltd v Sobbi [2010] NSWSC 789
Corruption and Crime Commission v Allbeury (No 2) [2011] WASCA 26
Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573
Crowley v Brown [1964] 1 WLR 147
Danchevsky v Danchevsky [1974] 3 WLR 709; 3 All ER 934
Director of Public Prosecutions (Cth) v Sexton [2008] NSWSC 352
Ditfort v Katz [1991] NSWCA 80
Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510
Drummoyne Municipal Council v Lewis (1974) 1 NSWLR 655
EMI Records Ltd v Ian Wallace Ltd [1983] Ch 59
Ferraro v Woodward [1978] HCA 7; (1978) 143 CLR 102
Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1985) 5 FLR 169
Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238
Hannaford v HH [2012] FCA 560
Haritopoulos Pty Ltd v Scott [2007] VSCA 174
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Keeley v Brooking [1979] HCA 28; (1979) 143 CLR 162
Kennedy v Lovell [2002] WASCA 226
Lawrence v The King [1933] AC 699
McGoldrick v Citicorp Finance Pty Ltd [1990] VR 503
McHardie…

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AGLC
Ronowska v Kus (No 2) [2012] NSWSC 817
Case
[2012] NSWSC 817
Decision Date

CaseChat Overview and Summary

The case of Ronowska v Kus (No 2) involved a dispute concerning contempt of court. The defendant, Kus, had been found in contempt for deliberately obstructing the course of justice, providing knowingly false evidence, and attempting to prevent the plaintiff from receiving the benefit of a court judgment. The matter was before the Supreme Court of New South Wales. The primary legal issues were whether the contempt could be considered civil or criminal, the distinction between contempt and perjury, the availability of substituted service when personal service is not possible, and the discretion of the court to proceed with a hearing and sentence in the absence of the contemnor.

The court addressed the nature of the contempt, determining it to be civil rather than criminal, as it pertained to the enforcement of a court order rather than the punishment of an offence against the public order. The court also clarified that contempt and perjury are distinct, with contempt focusing on conduct inconsistent with the court order and perjury involving false statements made under oath. Regarding the service of court orders, the court ruled that personal service was not indispensable and that substituted service was permissible in contempt proceedings. The court exercised its discretion to proceed with the hearing and sentencing in the absence of the contemnor, finding that his absence did not preclude the court from making a decision.

In terms of sentencing, the court considered the appropriate term of imprisonment, ultimately opting for an indefinite term until the contemnor complied with the court's orders. The court also issued a warrant for the contemnor's committal to a correctional centre if he failed to comply. Regarding costs, the court held that it had the power to award indemnity costs in contempt proceedings, reflecting the seriousness of the contempt and the need to deter such conduct. The court ordered that Kus be committed to a correctional centre until he complied with the court's orders and awarded indemnity costs to the plaintiff.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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