Vail and Vail (No 4)
[2021] FamCA 106
FAMILY COURT OF AUSTRALIA
| VAIL & VAIL (NO. 4) | [2021] FamCA 106 |
| FAMILY LAW – PROPERTY – contempt application – whether contempt application properly pleaded – whether the contempt application be struck out, or summarily dismissed, for want of particularity – consideration of Court’s power to strike out applications –consideration of whether leave be granted to amend contempt application – indemnity costs sought and refused – costs reserved – leave granted to amended application and request further or better particulars. |
| Family Law Act 1975 (Cth) s 38(2) Family Law Rules 2004 rr 10.12, 10.13, 10.14 High Court Rules 2004 r 27.09 |
| Best & Best [2016] FamCAFC 190 Bigg v Suzi [1998] FamCA 14; (1998) FLC 92-799 Director of Public Prosecutions for Western Australia v Network Ten (Perth) Pty Ltd [2007] WASC 166 Industrial Registrar of New South Wales v Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 387 |
| APPLICANT: | Ms Vail |
| RESPONDENT: | Mr Vail |
| FILE NUMBER: | SYC | 5604 | of | 2020 |
| DATE DELIVERED: | 10 March 2021 |
| PLACE DELIVERED: | Sydney via videoconference |
| PLACE HEARD: | Wollongong |
| JUDGMENT OF: | Altobelli J |
| HEARING DATE: | 1 & 15 December 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey and Mr Wong on 1 December 2020 Ms Gillies SC and Mr Wong on 15 December 2020 |
| SOLICITOR FOR THE APPLICANT: | Finn Roache Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Moses SC and Mr Wong |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
The Applicant have leave to file an amended contempt application within 14 days of the date of this order.
The Respondent may request further and better particulars within 14 days thereafter, and such particulars must be provided 14 days after the making of such request.
The matter be listed for Mention before me with respect to the Contempt Application only on 23 April 2021 at 9am.
Each parties’ costs be reserved.
IT IS NOTED THAT:
A.The purpose of the Mention is to assess the readiness of the Contempt Application to be heard, and once the Court is satisfied of same, it will be listed before Altobelli J for hearing.
B.The substantive issues in the matter are otherwise to be case managed by the docket Registrar.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vail & Vail has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT WOLLONGONG |
FILE NUMBER: SYC 5604 of 2020
| MS VAIL |
Applicant
And
| MR VAIL |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the orders that the Court has made in an application by the Respondent husband to strike out the Applicant wife’s Contempt Application filed 18 November 2020.
Background
When this matter came before the Court on 15 December 2020 in the context of an interim defended hearing in relation to matters other than the Contempt Application, senior counsel for the Respondent husband also pressed an oral application that the wife’s Contempt Application filed 18 November 2020 be struck out.
In an earlier judgment in this matter, Vail & Vail (No. 2) [2020] FamCA 1070, this Court expressed some concerns as to the form of the wife’s Contempt Application. However this Court dismissed an application made on behalf of the Respondent husband to discharge orders made on 9 September 2020. It is those orders that form the basis for the Contempt Application.
Directions were made for this matter to be dealt with by way of written submissions. The following written submissions were provided:
·Submissions filed on behalf of the wife on 21 December 2020;
·Submissions filed on behalf of the husband on 22 December 2020;
·Submissions in reply filed on behalf of the wife on 24 December 2020; and
·Submissions in reply filed on behalf of the husband on 14 January 2021.
The Contempt Application, as originally filed, contained 11 allegations arising out of the husband’s alleged breach of the orders made 9 September 2020. When the matter came before the Court on 15 December 2020, senior counsel for the wife indicated that only six charges were being pressed, though some of the charges incorporated consolidated examples of the husband’s alleged action in failing to comply with orders made on 9 September 2020. By way of summary, the contempt charges, as they are alleged by the wife, relate to the following orders made on 9 September 2020:
a)Order 3 – the husband’s failure to pay spousal maintenance of $10,000 per month to the wife;
b)Order 13 – the husband’s continued drawing of more than $25,000 from “J Pty Ltd” without first obtaining written consent of the wife;
c)Order 14 –the husband’s failure to provide the wife with details of all payments made from J Pty Ltd within 7 days of the payments being made;
d)Order 16 –the husband accessed funds in the F Pty Ltd account with the CBA Account No …15 other than for the purpose of reducing debit balances on two named credit cards, viz; Westpac and HH Bank Credit cards;
e)Order 17 – the husband continued to draw down on the F Pty Ltd Account, but not for the purpose provided in Order 16;and
f)Orders 18-19 – the husband continued to draw down on the Westpac and HH Bank Cards after compliance with Order 16.
It is important to recognise, however, that the charges in relation to the alleged breaches of the six orders referred to above contain statements of alleged facts often referring to multiple transactions which, individually or jointly, constitute breaches of the orders in question.
The husband’s contention about the basis for striking out the Contempt Application are found at paragraphs 21-24 of the written submissions filed
22 December 2020, prepared by his senior and junior counsel. By way of summary, it is contended that the charges are ambiguous, vague, and contain multiple breaches within one charge. Some of the charges do not refer to a particular order contended to be breached, and some of the alleged charges relate to orders which are in and of themselves ambiguous. On behalf of the husband, it is contended that it is not possible for him to defend the charges as presently pleaded, and that it is not for him to try and work out what the charges are against him.
The wife opposed the husband’s application.
The material before the court
Other than the written submissions referred to above, the only relevant material before the Court was the Contempt Application filed 18 November 2020, and the wife’s Affidavit in support of that Application, filed on the same date.
The powers of the court to strikeout, or summarily dismiss, an application
All parties before the Court assumed that it has power to make the orders sought by the husband. Notably, however, the Family Law Rules 2004 have not provided for the “striking out” of applications or responses since pleadings were abolished in 1995: Bigg v Suzi [1998] FLC 92-799; Doisy & Wilmot Doisy [2009] FamCAFC 14.
Thus, whilst it was characterised as a strikeout application, it is apparent to the Court, in the absence of any specific submission in this regard, that the application made orally on behalf of the husband was in fact one to summarily dismiss the Contempt Application, presumably on the basis that it is frivolous, vexatious or an abuse of process, or that there is no reasonable likelihood of success. Assuming that is the case, the Court’s powers are contained within the Family Law Rules 2004 at 10.12 - 10.14:
10.12 Application for summary orders
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
10.13 Application for separate decision
A party may apply for a decision on any issue, if the decision may:
(a) dispose of all or part of the case;
(b) make a trial unnecessary;
(c) make a trial substantially shorter; or
(d) save substantial costs.
10.14 What the court may order under this Part
On an application under this Part, the court may:
(a) dismiss any part of the case;
(b) decide an issue;
(c) make a final order on any issue;
(d) order a hearing about an issue or fact; or
(e) with the consent of the parties, order arbitration about the case or part of the case.
One difficulty is that rule 10.12 applies “after a response has been filed”. No such response has been filed, only the Contempt Application. As a matter of substance, rather than form, the husband’s oral application for summary dismissal could be treated as the response, for the purposes of rule 10.12. There may also be scope for the application of rule 10.13. Nonetheless, ambiguity arises.
Any ambiguity in the Court’s powers to summarily dismiss an application may be resolved by s 38(2) of the Family Law Act 1975 (‘the Act’) which effectively incorporates the High Court Rules 2004: see Chen & Chen (No. 3) [2020] FamCA 744. The applicable rule is rule 27.09 entitled “Summary Disposition” and is, relevantly, in the following terms:
27.09 Summary disposition
27.09.5 Where a pleading:
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceedings; or
(d) is otherwise an abuse of the process of the Court;
the Court or a Justice may order the whole or part of the pleading be struck out or amended.
It is curious that the Family Law Rules, as presently drafted, do not contain an explicit power similar to that contained in the High Court Rules or, indeed, in the Federal Circuit Court Rules 2001 in rule 13.10. In Bigg v Suzi [1998] FLC 92-799 at 5.4, the Full Court considered that such a power in the absence of pleadings would be “a nonsense”. Nonetheless the Full Court in that case also confirmed that this Court has an inherent power to dismiss or permanently stay an application that cannot succeed. I am satisfied that the Court has the relevant power to either strike out, or summarily dismiss, the application.
How such power should be exercised
The basis of the exercise of the power to summarily dismiss is referred to in a number of established authorities. For example, Dixon J stated in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:
The application [for summary dismissal] is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
Kirby J stated in LindonvThe Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-545:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3.An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. …
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Finally, the Full Court in Pelerman & Pelerman [2000] FLC 93-037 at [46] stated that:
a)The power for summary dismissal is a discretionary one.
b)Relief “is rarely and sparingly provided”.
c)The parties seeking summary dismissal must show that the application is “doomed to fail” or has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
d)A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial.”
f)“If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings.”
(emphasis in original)
Amendment of applications in contempt matters
Once the Court is satisfied about its powers and the basis on which such powers may be exercised, if the Court decided not to summarily dismiss the Contempt Application, the focus would turn to whether the Court should allow the Applicant to amend her application and/or to provide further and better particulars of the same. Of course if such leave were refused, the focus may then necessarily return to the issue of summary dismissal.
In many ways, the issue raised in the present application is whether charges in contempt applications need only be drafted with sufficient clarity and particularity, or whether, by contrast, the charges must be so highly specific and particular that they go beyond merely informing the respondent of the nature of the charges to be met, and instead require overtly technical formulations. As will be seen, this Court favours the former view. Charges in contempt applications need to be drafted with sufficient clarity such that the nature and extent of the accusation is clearly and distinctly stated to the person charged. Where necessary, amendments may be allowed so that the real issue and controversy between the parties can be determined.
On this issue, counsel for the wife referred the Court to the remarks of Haylen J of the Industrial Relations Commission of New South Wales in Industrial Registrar of New South Wales & The Uniting Church in Australia Property Trust (New South Wales) [2003] NSWIRComm 388:
5 In these matters it is appropriate, in my view, that the Court should concentrate upon the substance of the alleged contempt and the thrust of the case brought against the respondent. As pointed out in Chang Hang Kiu v Piggott [1909] AC 312 at 315, it is the gist of the accusation that must be made clear to the person charged although it is not always necessary to formulate the charges in a series of specific allegations (referred to in Coward v Stapleton (1953) 90 CLR at 580). Similarly, in Fraser v The Queen [1984] 3 NSWR 212, Mahoney JA observed that the time had passed when matters of contempt should be dealt with upon what are essentially technical or procedural grounds: contempt is a serious charge and should be dealt with according to its substance and not its form. His Honour accepted that there was a role for technicalities and procedural matters in the criminal law and like proceedings but rules and proceedings were not ends in themselves: they had the function of ensuring that the matters of substance to be dealt with, were dealt with, with fairness to the parties involved[…] It is clear that what is essential for a fair trial of an allegation of contempt is that the specific offence charged is succinctly stated and sufficient opportunity given to answer the charge (MacGroarty v Clauson [1989] HCA 34; (1989) 167 CLR 251 at 255). It is also to be remembered that in Witham v Holloway (1995) 183 CLR 525 (at 534) while the Court held that all charges of contempt must be proved beyond reasonable doubt, the Court went on to say:
However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge.
…
25 In Fraser, Mahoney¸JA was in the minority in relation to whether the proceedings for contempt should be dismissed: his position was that there should be a new trial. The authorities he referred to focusing on the substance of the case were not called into question by the majority, although they thought compliance with the rules of court in cases of summary proceedings for contempt were imperative.
Counsel for the wife also referred the Court to the remarks of Marks J in the separate judgment of Marks and Boland JJ in Industrial Registrar of New South Wales & The Uniting Church in Australia Property Trust (New South Wales) [2003] NSWIRComm 387 at [47] and [48]:
…In doing so a fundamental consideration is that where a person is charged with criminal contempt the specific charge against the person must be distinctly stated and the person must be given an opportunity of answering the charge. In Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573 at 579-580 it was said that:
[It] is a well recognised principle of law that no person ought be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him; In re Pollard (1868) LR 2 PC 106 at 120; R v Foster; Ex parte Isaacs [1941] VicLawRp 16; [1941] VLR 77 at 81. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott [1909] AC 312 at 315.
Coward v Stapleton was applied in Australian Building Construction Employees' and Builders Labourers' Federation & Ors v Minister of State for Industrial Relations & Ors (1982) 43 ALR 189 at 208 and 211. In Attorney-General v Leveller Magazine [1979] AC 440 at 461 Lord Edmund-Davies said a person charged with criminal misconduct including criminal contempt is entitled to know with reasonable precision the basis of the charge.
The Full Court in Best & Best [2016] FamCAFC 190 applied Coward v Stapleton 90 CLR 573 in a case where the application was not adequately particularised in that it did not refer to the “time, date or the evidence” about the conduct alleged to have constituted contempt. The Full Court found it would have been impossible for the other party to “understand the nature and extent of the allegations against her” (see [40]).
There is Western Australian authority to the same effect as Industrial Registrar of New South Wales & The Uniting Church in Australia Property Trust (New South Wales). In John Holland Pty Ltd v CFMEU [2006] WASC 106, Blaxwell J stated:
16 In Chiltern District Council v Keane [1985] 1 WLR 619 it was held that this requirement for particularity in the notice of motion must be strictly complied with and that it is not enough to state the grounds of the application in general terms. What is required is that the person alleged to be in contempt should know "exactly" what he is said to have done or omitted to do which constitutes the contempt of court.
17 It is also clear that any deficiency in the particulars which goes to the substance of the charge of contempt, cannot be made good by reference to the affidavit evidence (Carew-Reid v Carew Corporation Pty Ltd (ibid)). This is so even if the nature of the case alleged can be readily ascertained from the supporting affidavits (Chanel Ltd v FGM Cosmetics (1981) FSR 471, 478). In Harmsworth v Harmsworth [1987] 3 All ER 816, 821, Nicholls LJ held that the following test should be applied when determining the sufficiency of particulars in a notice of motion:
"... does the notice give the person alleged to be in contempt enough information to enable him to meet the charge? In satisfying this test it is clear that in a suitable case if lengthy particulars are needed, they may be included in a schedule or other addendum either at the foot of the notice or attached to the notice so as to form part of the notice rather than being set out in the body of the notice itself. But a reference in the notice to a wholly separate document for particulars that ought to be in the notice seems to me to be a quite different matter. I do not see how such a reference can cure what otherwise would be a deficiency in the notice. As I read the rules of court and as I understand the decision in the Chiltern case the rules require that the notice itself must contain certain basic information. That information is required to be available to the respondent to the application from within the four corners of the notice itself. From the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged. A fortiori, in my view, where the document referred to is an affidavit, which does not set out particulars in an itemised form, but which leaves the respondent to the committal application to extract and cull for himself from an historical narrative in the affidavit relevant dates and times and so forth, and to work out for himself the precise number of breaches being alleged and the occasions on which they took place."
18 Because of the criminal nature of contempt proceedings, leave to amend a defective notice is granted sparingly and only in instances involving minor amendments. In R v Pearce (1991) 7 WAR 395, 405, amendments to the notice of motion were allowed only to the extent that there "was nothing new of any significance". Similarly, in Carew-Reid v Carew Corporation Pty Ltd (ibid) the Full Court refused leave to amend because the proposed amendment sought to rectify "a substantial defect in the original pleading of the contempt going to matters which were the substance of the charge". Again, in Castledine v Boronga Pty Ltd [2000] WASC 215 Anderson J (at [26]) held that:
"... leave to amend a charge of contempt will not be granted if the original charge is seriously defective and the amendments which are sought are substantial: Carew-Reid & Ors v Carew Corporation Pty Ltd (supra) at 15. Where the original pleading of contempt is completely devoid of particulars and is on that account substantially defective, it is not a proper exercise of discretion to allow the person bringing the charge to cure that basic deficiency by amendment."
More recently, the decision in John Holland was applied in Director of Public Prosecutions for Western Australia v Network Ten (Perth) Pty Ltd [2007] WASC 166. This case also refers to the decision of the Western Australian Court of Appeal in Hammond v Aboudi [2005] WASCA 204 which contains a useful account of the nature of the specificity of the charges, concluding that what is sufficient particularity is a question of fact. In other words, sufficient particularity is determined on a case by case basis. These persuasive authorities inform this Court’s decision in the absence of other authorities cited by the parties.
Should the application be summarily dismissed?
The short answer is no. No abuse of process is apparent in the material before the Court. It is clear from the authorities discussed above that it is a serious matter for this Court to exercise the power to summarily dismiss and deprive a person of their access to the Court, and thus relief should be provided ‘rarely and sparingly’. The nature and extent of the allegations against the husband are stated clearly and distinctly enough in the Contempt Application. The Applicant has a prima facie case which is not doomed to fail. Even if the Court felt that the Applicant’s case was weak, that does not justify summary dismissal. In any event, any perceived issues with the Contempt Application may be addressed by amendment and/or particulars, provided the amendments are not substantive.
should leave be granted to amend the application?
The answer to this question depends on the nature of the concerns raised about the Contempt Application or specific parts of the same. Each complaint will be discussed below. The general principle is that leave may be granted unless the required amendment is substantive or significant (such as introducing a new allegation). Moreover, leave will be granted unless it is plainly unfair to do so in the circumstances of the case. If leave to amend is not granted, unless a perceived defect may be cured through particulars, that allegation must be dismissed.
The complaints about the contempt application
The Court will adopt the framework adopted in the husband’s submission and consider his concerns in relation to each of the allegations made against him.
Allegation 1
Allegation 1 clearly asserts a breach of order 3, which is alleged to have taken place on 1 November 2020. Order 3 was an order made by consent. The statement of alleged facts supporting the allegation contend that the husband failed to pay $10,000 to the wife in breach of order 3 of the orders made by Henderson J on 9 September 2020.
The husband’s complaint is that the alleged breach is said to have occurred on 1 November 2020, but that is in the context of an order that provides for no date of payment. Indeed, order 3 merely states: “the husband pay the wife $10,000 per month by way of spousal maintenance”.
The wife, in her submissions in reply filed 24 December 2020, submits, in effect, that the failure by the husband to make any payment at all under order 3 means that there could not possibly be any ambiguity either in the order, in what the husband was required to do, or what is alleged in the Contravention Application. Nonetheless, and without in any way conceding that the charge has not been sufficiently drafted or is in any way problematic, the wife has foreshadowed an amendment to the date of the allegation of: “between 1 November 2020 – 30 November 2020.”
From the Court’s perspective, order 3 is not of itself so unclear or otherwise ambiguous as to be a bar to contempt proceedings. The Court must construe or understand order 3 from a choice of possible meanings. One meaning is that $10,000 was to be paid with the first payment due one month after the order, i.e. 9 October 2020. There are other possible meanings. It is not as if order 3 has no meaning. Consistent with the Full Court’s decision in Medlow & Medlow [2017] FamCAFC 159 and Cluny & Skinner [2017] FamCA 255 at [38], even in the context of a contempt application, the Court must interpret order 3 by reference to a number of possible meanings, which may be derived from the text of the order itself.
There are two clear facts that makes the husband’s objection to this allegation quite disingenuous. Firstly, he consented to this order. Secondly, his own evidence concedes that he has not paid, allegedly because he did not have the capacity to pay.
The Court concludes that there is no basis for the husband’s complaint about allegation 1. Nonetheless, the Court will not stand in the way of the proposed amendment and leave will be granted in this respect.
Allegation 2
The charge is no longer pressed by the Applicant. It will be dismissed unless an amended application withdraws it.
Allegation 3
Allegation 3 alleges a breach of order 13 occurring on 9 September 2020 and 19 October 2020. The statement of alleged facts refers to the husband making two transfers of money from a named account in breach of the orders. Order 13 restrains the husband from withdrawing more than $25,000 each seven days from the named account, without the written consent of the wife.
The husband’s complaint is that the wife particularises two transactions in one charge. He asserts that it is unclear what the wife is alleging because she does not particularise the order. Further, he submits that it is unclear whether the alleged breaches together form the basis of a finding of contempt or whether each alleged transaction individually is being treated as a separate act of contempt.
The Court rejects this complaint. Allegation 3 makes it clear that it relates to order 13, the terms of which are equally clear. Each charge is particularised in its own paragraph in the statement of alleged facts. It is clear, from the Court’s perspective, that if either allegation is established on the facts, it constitutes a breach of order 13. The husband’s complaint typifies the overly technical approach to the pleading of contempt applications that was rejected in Industrial Registrar of New South Wales v Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 387 and Industrial Registrar of New South Wales v Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 388. There can be no reasonable apprehension on the part of the husband that this charge is ambiguous or vague.
The Court notes that the wife has offered to separate each charge in a proposed amended application. The Court will not stand in the way of doing this and leave will be given in this regard.
Allegation 4
Allegation 4 contends multiple breaches of order 14 from 19 September 2020 and continuing until the filing of the Contempt Application. The statement of alleged facts contains three paragraphs and a detailed schedule of transactions between 11 September 2020 and 21 October 2020 which provide the factual particulars of the alleged breach.
Order 14, made 9 September 2020, is expressed in simple terms: “The husband is to notify the wife of any withdrawals or payments made from the J Pty Ltd account within seven days of them being so paid or withdrawn.”
The husband’s complaint is that the wife does not properly plead the alleged breach but simply places a range of dates and tables with various transactions, under the one charge. In addition, complaint is made about the reference to the alleged breach continuing until the filing of the Application for Contempt which took place on 18 November 2020. In addition, concern is raised about the fact that two of the transactions contained in the statement of alleged facts are the same transactions that are referred to in allegation 3. Lastly, the husband complains that as the charge, in effect, relates to disclosure, there is no basis for pressing the charge for contempt. In this regard, as will be seen, the wife no longer presses the charge of contempt for alleged failures to comply with disclosure in allegation 10.
The Court has no concerns about the wife formulating a charge that includes multiple acts. The Court accepts her submission that, consistent with authorities such as Tate & Tate [2002] FamCA 356, the party alleging contempt is entitled to make the forensic decision as to whether to charge each alleged act of breach as a separate breach, or allege that the acts, taken together, constitute a differently described breach.
The Court does not accept that the Full Court’s decision in Stradford & Stradford [2019] FamCAFC 25 assists the Respondent in seeking to characterise order 14 as an order about disclosure. The disclosure that Stradford refers to is disclosure in accordance with the Federal Circuit Court Rules in relation to financial matters.
Except in one particular respect only, the allegation that the husband is facing could not be clearer. He was required by order 14 to notify the wife of certain withdrawals and payments, but allegedly did not do so. If he wants further particulars about the alleged payments, then that is the appropriate course of action, i.e. to request further and better particulars, rather than ‘striking out’, or summarily dismissing, the allegation.
The Court is concerned, however, that allegation 4 purports on its face to allege breaches that occurred outside the parameters particularised. To this extent, the charge is ambiguous, vague, and unfair to the husband. The Court will grant leave to the Applicant to amend this allegation so that it covers the date
9 September 2020 until 21 October 2020 only, being the last specifically particularised payment purportedly in breach of the orders. In all other respects, the allegation is soundly drafted and particularised, and there is no unfairness to the husband.
Allegation 5
This allegation is not pressed, and will be dismissed if not withdrawn in any amended application.
Allegation 6
Allegation 6 alleges multiple breaches of order 16 between 21 September and
8 October 2020. The allegation is supported by a statement of alleged facts containing seven paragraphs.
Allegation 6 refers to order 16, which restrains the husband from using funds remaining in a nominated bank account other than for the purpose of reducing nominated credit card balances to nil.
There can be no doubt that the wife is alleging a breach of order 16, so any complaint about the husband in this regard has no foundation.
Consistent with the Court’s observations above, the breach is established if any one of the alleged facts are proven, and there is no basis for the husband’s complaint that he needs to know whether the conduct as a whole or individually amounts to contempt.
The husband complains about the reference to his personal account at statement of alleged facts at 6. In her submissions in reply, the wife concedes that statement of facts at 6 is not a separate breach but purports to particularise alleged facts 3-5, which total $24,000. The Court accepts that this is the only basis for concern about allegation 6. The statement of alleged facts at 6, within this allegation, needs to be amended to clarify that it merely provides particulars. However the court will not allow it to be re-pleaded into a separate and thus new charge. Leave is granted in the regard to which I have referred.
Allegation 7
Allegation 7 alleges multiple breaches of order 17 between 21 September and 8 October 2020. In the statement of alleged facts, the wife particularises that the husband transferred funds after 11 September 2020, contrary to the provisions of order 17.
Order 17 is clear: “The husband is to comply with order 16 within 48 hours of these orders unless the parties both agree.” Order 16 is the injunction referred to above.
The husband complains that the wife alleges multiple breaches without any specificity, that the interaction between orders 17 and 16 is ambiguous and that, in any event, the dates referred to in allegations 6 and 7 are duplicitous.
Whilst the Court does not agree that the references to dates are duplicitous per se as allegation 7 alleges a breach of order 17 whereas allegation 6 alleges a breach of order 16, the Court nonetheless agrees with the husband that this charge should be dismissed. No attempt was made to particularise the funds allegedly transferred on these dates, in the same way, for example, as was done in relation to allegation 6. This lack of attention to detail, and consequent unfairness to the husband, should not be allowed to be corrected by amendment or by a request for particulars. Allegation 7 is dismissed for want of particularity.
Allegation 8
In allegation 8, the wife alleges multiple breaches of order 18 between 14 September 2020 and 30 September 2020. The statement of alleged facts supporting the allegation contains detailed particulars of the alleged facts supporting the same.
Order 18 states that on the husband complying with order 16, both parties are injuncted from using the named credit cards and likewise for any existing direct debit payments after 26 September 2020.
The husband contends that neither the credit cards nor the direct debits are particularised, and thus the allegation is ambiguous in the absence of particulars of specific payments. In this regard, the Court notes that the statement of alleged facts refers to totals of payments, rather than individual payments.
The Court rejects the husband’s complaint about whether the contempt can be established on only one established alleged fact, or all of them. It is clear that if one alleged fact is established, the contempt is established. The nature and extent of the allegation is clear.
The Court holds that any issues arising out of particulars of credit cards, direct debits, and individual payments, are matters that should be addressed through a request for particulars. There is no ambiguity that cannot otherwise be addressed by particulars.
The Court notes that in the wife’s submissions in reply, she concedes that numbered paragraph 10 of the statement of alleged facts is not a charge, but is more adequately a particular of the balance of the charges. This is a matter that can be addressed in any amended application and leave is granted in that regard.
Allegation 9
In the Contempt Application, allegation 9 alleges multiple breaches of order 19 between 14 September 2020 and 30 September 2020. The statement of alleged facts contains four paragraphs giving particulars of the same.
Order 19 is a complex order permitting the husband to maintain certain direct debits on nominated credit cards up to a certain date only and thereafter to be terminated on the basis of informing the wife and the husband making certain repayments.
The husband complains that whereas the wife alleges multiple breaches, she does not provide one transaction in either the statement of the allegation, or the alleged facts, but relies on general statements. He contends that it is impossible for him to determine how it is alleged that he breached order 19.
In the wife’s submissions in reply, she concedes that statement of alleged facts 1 and 3 in allegation 9 overlap with those charges in respect of allegation 8, and thus she does not press the same. That leaves the alleged facts at 2 and 4 which, she contends, are straightforward and simple.
The Court does not agree. One of the difficulties in interpreting order 19 is its interaction with preceding orders. Greater particularity should have been afforded in respect of the alleged use of the credit cards and the direct debits. This inadequate drafting should not be permitted to be remedied by a request for particulars. Allegation 9 is dismissed. Its ambiguity is such that it would be prejudicial to the husband in the context of a contempt application.
Progressing the Matter
The Court has already foreshadowed that the Applicant should be given the opportunity to file an Amended Contempt Application. The Applicant foreshadowed in her submissions in reply that further attention needed to be given to the draft Amended Contempt Application attached to the submission. Having regard to the Court’s decision above, that is appropriate.
Costs
The Respondent husband pressed for his costs of the present application on an indemnity basis. This is premature. The costs of both parties will be reserved. It is inappropriate to deal with the costs implications of only one discrete aspect of the Contempt Application. Any determination of costs should consider the application as a whole, whether as at the conclusion of the hearing, or at the sooner conclusion of the matter.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Altobelli delivered on 10 March 2021.
Associate:
Date: 10 March 2021
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