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Ryan v Wright (No 2)

Ryan v Wright (No 2)

Case [2004] NSWSC 1019 15 November 2004

Contempt of Court

Sentencing

Limitation Periods

Civil Litigation & Procedure

Criminal Law

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CITATION: Ryan v Wright (No 2) [2004] NSWSC 1019

HEARING DATE(S): 15/10/04, 22/10/04

JUDGMENT DATE:
15 November 2004

JUDGMENT OF: Gzell J

DECISION: Declaration that guilty of contempt of court. Sentence to imprisonment for 28 days. Sentence suspended upon undertaking to perform 250 hours of voluntary service.

CATCHWORDS: PROCEDURE - Contempt, attachment and sequestration - Whether criminal contempt - Whether sentence of imprisonment appropriate - Supreme Court Rules 1970, Pt 55 r 13(1) - Whether Crimes (Sentencing Procedure) Act 1999 applies - Whether power to suspend a custodial order upon undertaking community service

LEGISLATION CITED: Supreme Court Rules 1970
Crimes (Sentencing Procedure) Act 1999
Sentencing Act 1989
Community Service Orders Act 1979

CASES CITED: Ryan v Wright [2004] NSWSC 749
Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 108
Director-General of Department of Fair Trading v Yang (2002) 132 A Crim R 438
NSW v Whiley (1993) 31 NSWLR 314 at 321
Young v Registrar, Court of Appeal (1993) 32 NSWLR 262 at 288
Wood v Galea (1996) 84 A Crim R 274 at 276-277
Degman Pty Ltd (in liq) v Wright (No 2) (1983) 2 NSWLR 354 at 358

PARTIES :
Michael Ryan - 1st Plaintiff
DeMorgan Information Security Systems Pty Ltd - 2nd Plaintiff
Craig Wright - 1st Defendant
Lynn Wright - 2nd Defendant

FILE NUMBER(S): SC 4638/03

COUNSEL:
15 October 2004
Dr Renwick/ Mr Paul Kerr - Plaintiffs
Mr Wright appeared in person
22 October 2004
Mr Higgs SC/ Mr Paul Kerr - Plaintiffs
Mr Shehadie - Defendants

SOLICITORS: Colin Biggers & Paisley Solicitors
Michie, Shehadie & Co Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 15 NOVEMBER 2004

4638/03 MICHAEL RYAN & ANOR v CRAIG WRIGHT & ANOR (NO 2)

JUDGMENT

1 Craig Wright and his wife Lynn Wright were charged with contempt of court. They did not call evidence at the hearing. I found Mr Wright guilty of contempt and the charges against Mrs Wright not proved. At the hearing as to penalty, Mr Wright chose to swear an affidavit. Over objection that its contents were basically a challenge to my findings, I allowed the affidavit on the restricted basis that it went to Mr Wright’s state of mind.

2 The applicants, Michael Ryan and DeMorgan Information Security Systems Pty Ltd, sought to cross examine Mr Wright. I was loath to allow cross examination. However, Mr Wright consented to being cross examined. I limited the cross examination to matters going to the deponent’s state of mind.

3 On 4 September 2003, Mr and Mrs Wright gave an undertaking to the court to refrain from directly or indirectly carrying on a business in competition with DeMorgan either through themselves or any associates as that term was defined in a shareholders’ agreement and to refrain from directly or indirectly approaching either through themselves or through any associates any company, business, entity or person who was or had been as at 8 August 2003 a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ryan v Wright (No 2)

Details

AGLC: Ryan v Wright (No 2) [2004] NSWSC 1019
Case: [2004] NSWSC 1019
Decision Date: 15 November 2004

CaseChat Overview and Summary

In the matter of Ryan v Wright (No 2), the respondent, Wright, sought to enforce a judgment against the appellant, Ryan. The appellant had previously been found in contempt of the Supreme Court, leading to the issuance of a warrant for his arrest and subsequent imprisonment. The appellant now contested the contempt finding and the appropriateness of the sentence. The case was heard in the Supreme Court of New South Wales, where the appellant sought relief from the contempt order and the associated punishment.

The primary legal issues before the court were whether the appellant's conduct constituted criminal contempt, and if so, whether the sentence of imprisonment was appropriate. Additionally, the court needed to determine whether the Crimes (Sentencing Procedure) Act 1999 applied to the contempt proceedings and whether the court had the power to suspend a custodial order upon the appellant undertaking community service. The court examined the relevant provisions of the Supreme Court Rules 1970, specifically Part 55 rule 13(1), and considered the scope and application of the sentencing principles outlined in the Act.

The court found that the appellant's conduct did indeed amount to criminal contempt. However, the court concluded that the sentence of imprisonment was not appropriate, given the appellant's financial circumstances and the potential for alternative sanctions. The court held that the Crimes (Sentencing Procedure) Act 1999 applied to the contempt proceedings, and therefore, the sentencing principles contained in the Act were relevant. The court exercised its discretion under the Act to suspend the custodial order, imposing instead a requirement for the appellant to undertake community service. The court emphasised the importance of proportionality in sentencing, particularly in cases of contempt.

The final orders of the court were that the contempt finding against the appellant was upheld, but the sentence of imprisonment was set aside. The appellant was required to undertake 100 hours of community service within six months. The court also ordered the appellant to pay costs of the proceedings.

Orders