Shaw v Stamoulis

[2010] SADC 104

District Court of South Australia

(Civil: Interlocutory Application)

SHAW v STAMOULIS & ORS

[2010] SADC 104

Reasons for Decision of His Honour Judge Clayton (ex tempore)

29 July 2010

PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS

Application for the issue of Registrar’s Summons for contempt based upon defendant’s failure to comply with order under Domestic Partners Property Act 1996 which required payment by defendant of mortgage instalments.

HELD:

1) Service of Order upon defendant not proved.

2) In order to establish contempt applicant must prove non compliance was deliberate.

3) Also contempt not available for failure to make payment of monetary sum.

Application dismissed.

Domestic Partners Property Act 1996  ; Enforcement of Judgments Act 1991 s 12; District Court Act 1991 s 48; Supreme and District Court Civil Rules 2006 6R 4, 6R 10, 6R 67(2), 6R 117, 6R 225, 6R 303, referred to.
Price v Schultz [2009] SASC 76, considered.

SHAW v STAMOULIS & ORS
[2010] SADC 104

1. This is an action pursuant to the Domestic Partners Property Act 1996. The trial of the action is expected to take place in the not too distant future. I need not concern myself with what orders the court may make upon the determination of the action.

2. On 7 April 2010, Judge Beazley made an interlocutory order that until further order the defendant pay the arrears outstanding to St George Bank Ltd under a mortgage on a property jointly owned by the parties at 7 Basedow Road, Nuriootpa. Presumably Judge Beazley made that order for the purpose of preserving the subject matter of the main litigation. Such an order can be made for the preservation of the property which is the subject of the action. That was decided in Price v Schultz [2009] SASC 76.

3. The defendant has not made any of the payments required pursuant to the order of Judge Beazley. By an application dated 23 June 2010, the plaintiff has applied for the issue of a registrar’s summons for contempt.

4. When the matter was first called on Mr Stamoulis did not appear and an order was made in default of appearance. Shortly after the court adjourned the court staff ascertained that Mr Stamoulis had in fact been in the precincts of the court, although not in the courtroom, and the default order was withdrawn. Since that time Mr Stamoulis has opposed the issue of the registrar’s summons.

5. The first issue is whether the order of Judge Beazley was served upon the defendant. When the order was made on 7 April 2010 there was no appearance by the defendant. One of the terms of his Honour’s order was that the order, together with endorsement required by 6R 225, be served personally on the first defendant. I also note that Mr Stamoulis was given liberty to apply upon 24 hours notice to dissolve or vary the injunction. There has been no application to do either of those things.

6. Has the plaintiff proved that Judge Beazley’s order has been served?

7. If I can digress to refer to the burden of proof in applications such as this. The burden of proving contempt in civil matters is the criminal onus, that is, proof beyond reasonable doubt. The plaintiff is required to prove service of the order of Judge Beazley upon Mr Stamoulis in accordance with the criminal onus.

8. The plaintiff relied upon an affidavit of service by Brendan Charles Shaw, the brother of the plaintiff, which was sworn on 3 June 2010. In para 3 of that affidavit Mr Shaw stated that on Friday, 23 June 2010, at approximately 5pm at 7 Basedow Road, Tanunda, he was able to personally serve Dominic Stamoulis with a copy of the court order dated 7 April 2010. In the affidavit he says:

   4. I served the documents on him personally by saying

   
   

   ‘Hello Dominic’ and as Dominic was loading Xanthe’s bags into his car boot I said to Dominic ‘I have something for you’. I then handed him the court order dated 7^th April 2010 a copy of which is attached hereto and marked with the letter ‘A’. He accepted the document without saying anything. I said ‘I have served you with a document from the Court.’ He did not reply.

9. The attachment marked 'A' is not a sealed copy of the court order but a copy of the court’s Record of Outcome. The significance of that is that the Record of Outcome does not contain the endorsement required by 6R 225. There is doubt as to whether the defendant has been properly served.

10. Today Mr Heffernan tendered a letter of 25 June 2010 from his office to the defendant enclosing what is described as a further sealed copy of the order with injunction. However the question of precisely what it was that was enclosed is left open.

11. I am not satisfied that the plaintiff has proved beyond reasonable doubt service of the sealed order in accordance with the requirements described in the order itself.

12. Mr Heffernan argued that service can be presumed. He referred to 6R 67(2), 6R 10 and 6R 117. Included in his oral submissions was an application to dispense with the rules. Having regard to the importance of an application for the issue of a summons for contempt I am not prepared to presume service. This is the very situation in which personal service is required. This is not a situation in which the rules requiring personal service can be dispensed with.

13. Also there is insufficient evidence for service to be presumed. As I have said there remains doubt as to whether the defendant was served with a copy of the sealed order of the court containing the necessary endorsements.

14. Mr Heffernan has criticised the conduct of the defendant in the litigation generally. There may be substance in those criticisms and I have no doubt that his client suffers a great deal of distress. However, the conduct of the defendant and the distress of the plaintiff can not provide reason to waive compliance with the Rules of Court.

15. The defendant relies upon s 12 of the Enforcement of Judgments Act 1991. That section provides for the Enforcement of Judgments by Proceedings in Contempt. Subs 12(1) says that:

    Where a party is, by judgment of a court, ordered to do, or to refrain from doing, an act and the party contravenes or fails to comply with the judgment, the court may, on the application of the party entitled to the benefit of the judgment, issue a warrant to have the person arrested and brought before the court to be dealt with for a contempt of the court.

16. In my opinion this application is determined by s 12(2) which provides a person cannot be dealt with under this section for failure to pay a monetary sum.[1]

    [1] s 12(2)

17. Mr Heffernan sought to distinguish s 12 on the basis that the order of Judge Beazley is not a “judgment” of the court but an “order” of the court. He said that it is an “interim order”. In my opinion there is no distinction between an order of judgment or interim order for this purpose.

18. Mr Heffernan also submitted that s 12 has no application because s 48 of the District Court Act 1991 came into effect after the Enforcement of Judgments Act. In my opinion that is not a reason for holding that s 12 has no application in the present case.

19. There is good reason why contempt proceedings should not be used to enforce the payment of monetary sums. The Enforcement of Judgments Act provides a code for the enforcement of payment of monetary sums. The jurisdiction under the Domestic Partners Property Act is not for the purposes of debt collection.

20. For these reasons I have come to the conclusions first, that the plaintiff has not proved personal service beyond reasonable doubt and secondly, contempt proceedings are precluded by s 12(2) of the Enforcement of Judgments Act.

21. There is no need to consider the defendant’s submission that the plaintiff does not have the capacity to prosecute the matter.

22. There is, however, one further relevant consideration. Applications for contempt are provided for in 6R 303 of the Rules of Court. That is the rule pursuant to which the plaintiff’s application has been brought. That rule provides that a party who claims to have been prejudiced by contempt of court may apply to the court to have the accused charged with contempt. If the court is satisfied that there are reasonable grounds the court may require the Registrar to formulate a written charge and issue a registrar’s summons.

23. Mr White directed my attention to 6R 4, the interpretation provision in the rules. That rule provides that “contempt” includes a number of things including “deliberate noncompliance with a judgment or order of the court”. It is unnecessary to refer to the other paragraphs in the definition. Accordingly the plaintiff must prove that the defendant’s noncompliance was deliberate. That involves proving that the defendant had the capacity to make the payments.

24. The plaintiff has sworn an affidavit in which she deposes to her belief as to the defendant’s means. The affidavit does not prove beyond reasonable doubt that the defendant had the means to make the payments required by the order of Judge Beazley.

25. The plaintiff orally applied for an order for substituted service. If I made such an order it would not overcome the difficulty presented to the plaintiff by s 12, nor would it establish that the non-compliance with the order was deliberate.

26. In the circumstances the plaintiff’s application for the issue of a registrar’s summons must be dismissed.