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TasBuild Ltd v Jones

TasBuild Ltd v Jones

Case [2014] TASSC 28 22 May 2014

Jurisdiction

Contempt of Court

Enforcement Orders

Civil Litigation & Procedure

Contempt of Court

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[2014] TASSC 28

COURT: SUPREME COURT OF TASMANIA

CITATION: TasBuild Ltd v Jones [2014] TASSC 28

PARTIES:  TASBUILD LTD (ACN 082 066 939)
  v
  JONES, Graeme

FILE NO:  29/2014
DELIVERED ON:  22 May 2014
DELIVERED AT:  Hobart
HEARING DATE:  8 May 2014
JUDGMENT OF:  Porter J

CATCHWORDS:

Procedure – Inferior courts – Tasmania – Local courts – Magistrates Court (Civil Division) – Practice – Trial and judgment – Civil contempt – Provision giving the Magistrates Court "the same powers in relation to the enforcement of its judgments and orders as the Supreme Court" – Provision means that Magistrates Court has the same powers as the Supreme Court to deal with contempt of court by a failure to comply with a judgment or order.

Magistrates Court (Civil Division) Act 1992, s31A.
Witham v Holloway (1995) 183 CLR 525, considered.
Aust Dig Procedure [420]

REPRESENTATION:

Counsel:
             Appellant:  D J Barclay
             Respondent:  In person
Solicitors:
             Appellant:  Page Seager

Judgment Number: [2014] TASSC 28
Number of paragraphs: 46

Serial No 28/2014
File No 29/2014

TASBUILD LTD (ACN 082 066 939) v GRAEME JONES

REASONS FOR JUDGMENT PORTER J

22 May 2014

Introduction

This is an appeal from a decision of Magistrate Brown concerning the scope of s31A of the Magistrates Court (Civil Division) Act 1992 (the Act), and the powers of the Magistrates Court (Civil Division). The section reads as follows:
"31A Enforcement of judgments and orders
The Court has the same powers in relation to the enforcement of its judgments and orders as the Supreme Court has in relation to the enforcement of its judgments and orders, unless otherwise provided by the rules of court."
In proceedings in the Magistrates Court (Civil Division) (the Court), TasBuild Ltd sought the punishment of the respondent, Mr Jones, for contempt of court by failing to comply with a magistrate's order. Magistrate Brown ruled that s31A did not vest the Court with the power to punish persons for contempt for non-compliance with its orders or judgments, and said that absent a contempt in the face of the court, a magistrate had no power to punish a contemnor. TasBuild's application against Mr Jones was dismissed.
TasBuild has appealed against that dismissal, arguing that as the Supreme Court has the power to punish for a "civil" contempt, s31A ensures that the Court is likewise armed. For the reasons which follow, the appeal should be allowed.

Background

It is unnecessary to recite much detail. TasBuild is a company declared by the relevant Minister to administer the long service scheme established by the Construction Industry (Long Service) Act 1997. Mr Jones traded as Graeme Jones Electrical, and was regarded as an employer within the meaning of that Act.
Throughout 2011, TasBuild pursued Mr Jones for registration as a relevant employer, and unsuccessfully sought documents and records from him. On 5 March 2012, TasBuild applied to a magistrate for an order against Mr Jones in the following terms:
"That, pursuant to…

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 TasBuild Ltd v Jones

Details

AGLC: TasBuild Ltd v Jones [2014] TASSC 28
Case: [2014] TASSC 28
Decision Date: 22 May 2014

CaseChat Overview and Summary

In the matter of TasBuild Ltd v Jones, the appeal was heard by the Court of Appeal of Tasmania. The central issue arose from a decision by Magistrate Brown concerning the scope of section 31A of the Magistrates Court (Civil Division) Act 1992 and the powers of the Magistrates Court to punish for contempt of court. TasBuild Ltd, seeking enforcement of a previous order, applied to the Magistrates Court for contempt orders against Mr. Jones for his non-compliance with the initial order and for failure to pay costs. Magistrate Brown dismissed the application, asserting that section 31A did not confer the Magistrates Court with the power to punish for contempt of court, thus TasBuild's appeal was on the basis that section 31A grants the Magistrates Court the same contempt powers as the Supreme Court.

The Court of Appeal was tasked with determining whether section 31A of the Magistrates Court (Civil Division) Act 1992 indeed empowers the Magistrates Court to punish for contempt of court by non-compliance with its orders or judgments. The appeal hinged on the interpretation of section 31A, which provides that the Magistrates Court has the same powers in relation to the enforcement of its judgments and orders as the Supreme Court, unless otherwise provided by the rules of court. The Court considered whether this provision meant that the Magistrates Court had the same powers as the Supreme Court to deal with contempt of court by a failure to comply with a judgment or order.

The Court of Appeal found that section 31A does indeed vest the Magistrates Court with the power to punish for contempt for non-compliance with its orders or judgments. The Court held that the plain language of section 31A grants the Magistrates Court the same enforcement powers as the Supreme Court, which includes the power to punish for contempt. Therefore, the Court allowed the appeal, finding that Magistrate Brown erred in his interpretation of section 31A. The Court of Appeal determined that the Magistrates Court has the authority to punish for contempt in cases of non-compliance with its orders, aligning with the Supreme Court's powers in this regard.

As a result of the Court of Appeal's decision, the appeal was allowed, and the matter was remitted back to the Magistrates Court for reconsideration. The Magistrates Court is now required to reassess TasBuild's application for contempt orders against Mr. Jones in light of the correct interpretation of section 31A. The Court did not specify further orders beyond the remittal, leaving it to the Magistrates Court to determine the appropriate punishment for Mr. Jones's non-compliance and failure to pay costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This is an appeal from a decision of Magistrate Brown concerning the scope of s31A of the Magistrates Court (Civil Division) Act 1992 (the Act), and the powers of the Magistrates Court (Civil Division). The section reads as follows:"31A Enforcement of judgments and orders The Court has the same powers in relation to the enforcement of its judgments and orders as the Supreme Court has in relation to the enforcement of its judgments and orders, unless otherwise provided by the rules of court." In proceedings in the Magistrates Court (Civil Division) (the Court), TasBuild Ltd sought the punishment of the respondent, Mr Jones, for contempt of court by failing to comply with a magistrate's order. Magistrate Brown ruled that s31A did not vest the Court with the power to punish persons for contempt for non-compliance with its orders or judgments, and said that absent a contempt in the face of the court, a magistrate had no power to punish a contemnor. TasBuild's application against Mr Jones was dismissed. TasBuild has appealed against that dismissal, arguing that as the Supreme Court has the power to punish for a "civil" contempt, s31A ensures that the Court is likewise armed. For the reasons which follow, the appeal should be allowed. It is unnecessary to recite much detail. TasBuild is a company declared by the relevant Minister to administer the long service scheme established by the Construction Industry (Long Service) Act 1997. Mr Jones traded as Graeme Jones Electrical, and was regarded as an employer within the meaning of that Act. Throughout 2011, TasBuild pursued Mr Jones for registration as a relevant employer, and unsuccessfully sought documents and records from him. On 5 March 2012, TasBuild applied to a magistrate for an order against Mr Jones in the following terms:"That, pursuant to Section 8(1)(a) of the Construction Industry (Long Service) Act 1997 the Respondent produce to the Applicant all records and information within its custody, power or control as requested in the Notice to Supply Records and Information served on the Respondent on the 16th of September 2011, including to produce to the Court the completed Notice to Supply Records and Information within fourteen (14) days of the date of this Order." The order was made on 16 April 2012. In addition, Mr Jones was ordered to pay the costs of the application which were later taxed at $1367.20, and a certificate was issued to that effect. Apparently not having complied with the order nor paid the costs, on 5 August 2013 TasBuild applied to the Magistrates Court for orders as follows:"1 The Respondent be punished for contempt of Court for:afailing to comply with the order of Magistrate Mollard dated 16 April 2012; andbfailing to pay costs due to the Applicant pursuant to a certificate of assessment dated 24 May 2012.2The Respondent be:a fined an amount to be determined by the Court; andb committed to prison until such time as he complies with the order dated 16 April 2012 and the certificate of assessment dated 24 May 2012."

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

TasBuild Ltd v Jones [2014] TASSC 28

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Cases cited in this decision · 13 of 13 shown

Lee v New South Wales Crime Commission
[2013] HCA 39 Para 5

…v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at 384 [78], and Lee v New South Wales Crime Commission (2013) 87 ALJR 1082 per French CJ at 1103 [45]. Of course, context, which includes the apparent purpose remains a consideration, but purpose can appear from the text as…
Commissioner of Taxation v Unit Trend Services Pty Ltd
[2013] HCA 16 Para 1

…The appellant argues, citing Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 87 ALJR 588 at 597 [47], that the proper approach to the interpretation of the section begins with its text, but with context and purpose being important. The appellant says that in this case there is no need to go beyo…
Martin v Trustrum (No 3)
[2003] TASSC 80 Para 3

…It is beyond doubt that the Supreme Court has the power to deal with civil contempt and to impose sanctions as a means to enforce its judgments or orders. As Slicer J noted in Martin v Trustrum (No 3) (2003) 12 Tas R 131 at 134 [4]: "The power of the Court is derived from its inherent jurisdiction t…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 5

…objective to give statutory words the meaning the legislature is taken to have intended, see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at 384 [78], and Lee v New South Wales Crime Commission (2013) 87 ALJR 1082 per French CJ at 1103 [45]. Of cou…
Witham v Holloway
[1995] HCA 3

…Witham v Holloway (1995) 183 CLR 525, considered.…
Registrar of the Court of Appeal v Maniam
[1991] NSWCA 236 Para 9

…a contemnor for civil contempt involves the usual sentencing factors of deterrence and denunciation: Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 per Kirby P at 314 (Mahoney JA and Hope AJA agreeing). But penal sanctions as such will not readily be resorted to as a means of enforcing court orde…
Hinch v Attorney-General (Vic)
[1987] HCA 56 Para 3

…udginberri Station Pty Ltd (1986) 161 CLR 98 at 109. [2] His Honour also referred to the judgment of Deane J in Hinch v Attorney-General for Victoria (1987) 164 CLR 15 at 49, in which the anomalies associated with the distinction between the two types of contempt were referred to. Proceedings against individuals whi…
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd
[1986] HCA 46 Para 3

…contempt, and "the unsatisfactory nature" of that distinction, referring to Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 109. [2] His Honour also referred to the judgment of Deane J in Hinch v Attorney-General for Victoria (1987) 164 CLR 15 at 49, in which the anomal…
Beckwith v the Queen
[1976] HCA 55 Para 6

…uld be slow to find that it has such a jurisdiction absent a plain inference that it does. In that regard reference is made to Beckworth [sic][3] v R (1976) 12 ALR 333 per Gibbs J at 399 [4] : ' The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance…
Lacey v Attorney-General of Queensland
[2011] HCA 107 Para 5

…apparent purpose remains a consideration, but purpose can appear from the text as well as extrinsic material; Lacey v Attorney-General for Queensland (2011) 242 CLR 573 at 592 – 593 [43], [44].…
[1970] 2 QB 114
[1970] 2 QB 114 Para 10

…r enactment or law for or in relation to the sentencing of offenders. He took the view, relying on a statement by Denning MR in Morris v Crown Office [1970] 2 QB 114 at 125, that the common law powers of imprisonment – immediate or postponed – to fine, or to bind over to be of good behaviour to come up for judgmen…
[1951] 1 KB 394
[1951] 1 KB 394 Para 9

…or the ill-defined concept that punishment for contempt should not be 'so inordinately heavy as to conflict with the Bill of Rights' (See: R v Morris [1951] 1 KB 394 per Lord Goddard CJ at 396) is similarly inconsistent." He said it was inconsistent with the historical pattern of this State in relation to giving m…
Hinch v Attorney-General for Victoria
79 ER 1034 Para 3

…ian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 109. [2] His Honour also referred to the judgment of Deane J in Hinch v Attorney-General for Victoria (1987) 164 CLR 15 at 49, in which the anomalies associated with the distinction between the two types of contempt were referred to. Proceedings against indi…

Legislation cited in this decision · 7

Magistrates Court (Civil Division) Act 1992 (TAS)
31A 2 mentions (from Para 1)
Australian Courts Act 1828 (Imp)
1 mention (from Para 3)
Construction Industry (Long Service) Act 1997 (TAS)
1 mention (from Para 1)
Justices Act 1959 (TAS)
1 mention (from Para 2)
Magistrates Court Act 1987 (TAS)
1 mention (from Para 1)
Sentencing Act 1997 (TAS)
1 mention (from Para 7)
Supreme Court Rules 2000 (TAS)
1 mention (from Para 4)