Ryan v Sansom

[1992] TASSC 88

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Ryan v Sansom [1992] TASSC 88; B6/1992

PARTIES:  RYAN, Lloyd Thomas
  RYAN, Betty Violet

v

SANSOM, Donald

FILE NO/S:  M160/1989
DELIVERED ON:  7 April 1992
JUDGMENT OF:  Zeeman J

Judgment Number:  B6/1992
Number of paragraphs:  8

Serial No B6/1992

List "B"

File No M160/1989

LLOYD THOMAS RYAN and BETTY VIOLET RYAN v. DONALD SANSOM

REASONS FOR JUDGMENT  ZEEMAN J

7 April 1992

Contempt – Attachment and Committal – Purpose of an order – Standard of proof – Facts which must be proved.

Practice – Tasmania – Practice after Supreme Court Civil Procedure Act 1932 – Service of application – Substituted service – Sufficiency of evidence in support of application.

1. The applicants sought an order that the respondent be committed for what was described as "his contempt in that having been duly served with a Summons to attend before the Master on the 3rd day of April 1991 and be orally examined as to his means of satisfying an Order made against him on 30th June 1987 he did fail to appear", or alternatively, an order that the applicants be at liberty to issue a Writ of Attachment against the respondent for that contempt. Having heard counsel for the applicants I dismissed the application on 2 April 1992, indicating that I would publish my reasons in due course. I now publish those reasons.

1. The relevant history of the matter includes the following:

1The applicants, as claimants, and Donald Murray Taylor and the respondent, as respondents, were parties to an arbitration conducted by Mr. F. C. Mitchell.

2The arbitrator made his award on 30 June 1987 when he ordered that the respondents to the reference pay to the applicants the sum of $5,564.60 and certain costs, which costs were taxed by a taxing officer of the Court in the total sum of $3,492.22.

3On 13 June 1989 Wright J made an order pursuant to the Arbitration Act 1892 ("the Act"), s14, that the applicants have leave to enforce the award in the same manner as a judgment. He also ordered that Taylor and the respondent pay the applicants‘ taxed costs of the application, which costs were taxed in the sum of $414.37. I observe that it was appropriate to proceed under the then repealed Act as it appears that the arbitration had commenced prior to the commencement of the Commercial Arbitration Act 1986.

4On 24 December 1990 in proceedings in which Taylor and the respondent were described as being judgment debtors, the Master made an order in the following terms:

"I do order that the abovenamed Judgment Debtors attend and be orally examined as to whether any and what debts are owing to them and whether the said Judgment Debtors have any and what other property or means of satisfying the Judgment signed herein on the 30th day of June 1987, before the Master at such time and place that he may appoint and that the said Judgment Debtors produce any books or documents in their possession or power relating to the same before the said Master at the time of the examination, and the costs of this application and of the examination hereunder be in the descretion [sic] of the Master taking the examination."

5On 20 March 1991 the respondent was served with a copy of that order, endorsed with a notice of hearing, expressed to be directed to Taylor and to the respondent, which notice was in the following terms:

"TAKE NOTICE that this matter has been set down for hearing before the Master on the 3rd day of April 1991 at 9.30 o'clock in the forenoon.

If you, the within–named Judgment Debtor, neglect to obey this order you will be liable to process of execution for the purpose of compelling you to obey the said judgment order.

(

signed)

REGISTRAR"

6         On 12 June 1991 the present application was filed.

7On 23 January 1992 the Master made an order permitting substituted service of the present application by serving the same upon the respondent‘s father, Alec Henry Sansom at 2 Easton Avenue, West Moonah.

8On 5 February 1992 the present application was served upon Alec Henry Sansom at the address referred to in the Master's order, that application having been endorsed with a notice of hearing indicating that the application had been set down before the Master at Hobart on 19 February 1992. I observe that the application sought orders which could not have been made by the Master they being outside his jurisdiction.

9On 6 March 1992, at an unspecified address, Alec Henry Sansom was served with a notice of adjournment addressed to the respondent, which notice was in the following terms:

"TAKE NOTICE that whereas the Interlocutory Application, a copy of which is annexed hereto and dated June 12, 1991, served upon you on February 5, 1992 was listed before the Master on February 19, 1992 and whereas you failed to appear on that day this Application has been adjourned to be heard by a Judge sitting in Court at the Supreme Court Building, Salamanca Place, Hobart on Monday March 23, 1992 at 10:00am. You are required to attend Court on that day or the Application will be made in your absence."

10The matter was called on before me on 23 March 1992. The respondent was called but did not then answer to his name.

1. It will be observed from the recital of the facts that the reference in the Master‘s order of 24 December 1990 to "the Judgment signed herein on the 30th day of June 1987" is erroneous as there was no judgment signed in these proceedings. The respondent is indebted to the applicants in respect of two quite distinct matters, namely the moneys required to be paid by him pursuant to the award of the arbitrator, which award the applicants are at liberty to enforce as if it were a judgment, and the costs required to be paid by him pursuant to the order made by Wright J Neither the award nor the order is described in the Master's order. The Act contained no provision such as is now contained in the Commercial Arbitration Act 1986, s33(1), whereby where leave is given, judgment may be entered in the terms of the award. Nevertheless, I do not think that I need consider whether the error appearing on the face of the Master‘s order vitiates the whole of the subsequent proceedings, nor, indeed, do I need to consider whether the provisions of the Rules of the Supreme Court, O.47, r.36, are available in aid of the enforcement of an award to which the Act applies.

1. When I first heard argument in support of this application I also expressed concern about granting the applicants either form of relief without the respondent having been personally served. Whilst not going behind the Master's order permitting substituted service, I would nevertheless have been entitled to decline to grant relief of the nature sought in the exercise of my discretion by reason of the mode of substituted service and the material upon the basis of which the order permitting substituted service was made. The order for substituted service was obtained upon an affidavit of a process server who expressed the belief that the respondent resided at 2 Easton Avenue, West Moonah, although his endeavours to find him there had been unsuccessful. The basis for that belief was expressed by the process server as being "that the phone is connected at the address in [the respondent‘s] name, the electricity supply to that address was registered in his name and I observed on many occasions a utility registered in his name parked outside that residence, most particularly in the evenings and on Sundays". No basis for the belief that the telephone connected to that address was in the name of the respondent appeared from the affidavit. No basis for the belief that the electricity supply to that address was in the name of the respondent appeared from the affidavit, nor did it appear as to when it was that the electricity supply to the address was in the name of the respondent. No basis for the belief that the utility was registered in the name of the respondent appeared from the affidavit. The utility was not identified by reference to a registration number or otherwise. The occasions upon which it was seen parked outside the house were not disclosed, and in particular, it did not appear from the affidavit that that vehicle was ever parked outside the house on any occasion when the process server attempted to effect personal service. For this and other reasons it seems to me that the order for substituted service ought not to have been made and I would have declined to make either of the orders sought where service had only been proved by way of proof of service in the manner permitted by the order for substituted service. However, having regard to the conclusions I reached as to the merits of the application itself, I dealt with the application. I also observe that the order did not purport to permit the service of any notice of adjournment by way of substituted service, and there was no evidence before me that the respondent was called on the occasion that the present application came before the Master on 19 February 1992, or on the occasion of the adjourned hearing before Green C.J on 3 March 1992, which latter appointment does not appear to have been the subject of any notice of adjourned hearing.

1. In dealing with this application, I apply two fundamental principles, as follows:

1The proceedings being in the nature of civil contempt proceedings, any order which is made is in an endeavour to persuade the contemnor to comply with the terms of the order of the court (in this case the Master's order of 24 December 1990) with any punitive element only being incidental as occurring by reason of the coercion involved in seeking compliance with the order (see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR.483 at 498 – 9).

2The standard of proof is the civil standard of proof but affected by the gravity of the facts to be proved and the gravity of the consequences flowing from such facts (see Rejfek v McElroy (1965) 112 CLR 517 at 521).

1. I will assume that the present application sufficiently identified the contempt alleged, although it erroneously refers to a summons rather than the Master‘s order. Counsel for the applicants made an application to amend so as to cure that error but I did not find it necessary to determine that application. It is, of course, imperative that the contempt alleged against an alleged contemnor is sufficiently identified (see Doyle v. Commonwealth of Australia (1985) 156 CLR 510 at 516).

1. Applying the principles to which I have referred, the application failed for the following reasons:

1The order required the respondent to attend before the Master "at such time and place that he may appoint". Assuming that that is a permissible form of order, it would require the Master to specify that time and place and notice of that time and place to be given to the respondent. It may be doubted whether the Master ever specified a time, notwithstanding the notice of hearing. In any event, there is no suggestion that the Master ever specified any place, nor is there any suggestion that notice was ever given to the respondent that he was required to attend at a particular place. The notice of hearing, assuming that it was a sufficient specification, or evidence of a sufficient specification, as to the time at which the respondent was required to attend, was entirely silent as to the place at which he was to attend. I cannot infer that the Master ever appointed any place at which the respondent was required to attend. If the Master did not appoint any place at which the respondent was required to attend, then no obligation arose for the respondent to do anything in response to the order. If the Master did appoint a place, then the respondent was not ever told the location of that place and he could not be in contempt by failing to attend at that place.

2The only evidence of non–compliance was contained in the affidavit of Miss Schokman, a solicitor in the employ of the applicants' solicitors, in which she deposed that "[o]n April 3, 1991 the said Donald Sansom failed to attend this Honourable Court to be orally examined thereby failing to comply with the Order of the Court that he so attend." That material falls far short of proving non–compliance with the order even if it had been complete as to the time and place at which the respondent was required to attend and even if sufficient notice thereof had been given to the respondent. The present proceedings are not interlocutory in nature and I should only act on admissible evidence. I cannot ascertain from the affidavit as to whether the relevant paragraph is or is not admissible. It may all be hearsay. In any event, the paragraph deposes to conclusions and not to primary facts. In order to establish a failure to comply with the order, there would need to be admissible evidence that at the appointed time and place (each of which should be specified) the respondent was called in a manner specified and that he did not then and there answer to his name.

1. It is for these reasons that I dismissed the application.