Whincup v City of Mandurah [No 2]
[2019] WASC 383
•24 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WHINCUP -v- CITY OF MANDURAH [No 2] [2019] WASC 383
CORAM: TOTTLE J
HEARD: 23 OCTOBER 2019
DELIVERED : 23 OCTOBER 2019
PUBLISHED : 24 OCTOBER 2019
FILE NO/S: SJA 1030 of 2016
BETWEEN: BRADLEY DOUGLAS WHINCUP
Applicant
AND
CITY OF MANDURAH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE V C EDWARDS
File Number : MH 2516 of 2013, MH 2517 of 2013, MH 2518 of 2018, MH 2519 of 2013, MH 6018 of 2014
Catchwords:
Practice and procedure - Application for arrest warrant - Where failure to attend means inquiry - Exercise of court's discretion - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 27, s 29
Civil Judgments Enforcement Regulations 2005 (WA), reg 96
Result:
Application adjourned
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | Mr A Watts |
Solicitors:
| Applicant | : | In person |
| Respondent | : | McLeods Barristers & Solicitors |
Case(s) referred to in decision(s):
Nil
TOTTLE J:
(These reasons were delivered extemporaneously on 23 October 2019 and have been edited to correct any infelicity of language.)
Introduction
Following the hearing of an appeal commenced by Mr Bradley Whincup under the Criminal Appeals Act 2004 (WA), a judge of this court made an order on 30 May 2017 that Mr Whincup pay 80% of the City's costs fixed at $7,550.40.
This is an application by the City of Mandurah, the respondent in the appeal and the judgment creditor, for the issue of a warrant to have Mr Bradley Whincup, the judgment debtor, arrested and brought before the court.
The relevant statutory provisions
The application is made under s 29(4) of the Civil Judgments Enforcement Act 2004 (the Act).
Before turning to s 29 reference to s 27(1) of the Act must be made. Section 27 provides that a judgment creditor may apply for a means inquiry to be held in respect of the judgment debtor. Section 27(4) of the Act provides that on receipt of such an application the court must set a date for the means inquiry and notify the judgment creditor of it.
The Act defines a judgment debtor as any person against whom a monetary judgment has been given or may be enforced. Mr Whincup is a judgment debtor for the purposes of the Act.
Section 29(1) of the Act is in the following terms.
29.Means inquiry, summons to attend
(1)In respect of each person named in an application under section 27(3), or in a request under section 28(5), or in a request made under subsection (2), the court may issue either or both of the following, according to the application or request ‑
(a)a summons to attend a means inquiry to give oral evidence;
(b)a summons to attend and produce to the court, for use in the inquiry, any record or thing that is or may relate to the matters listed in section 26 and that is detailed in the summons.
(2)During a means inquiry the judgment creditor or judgment debtor may request the court to summons a person to the inquiry to give or produce evidence.
(3)A summons issued under subsection (1) must be served personally.
(4)If a person who has been summoned under subsection (1) does not attend as ordered by the summons, the court may issue a warrant to have the person arrested and brought before the court.
(5)A person who has been summoned under subsection (1) and who, without a reasonable excuse ‑
(a)does not obey the summons; or
(b)refuses to be sworn or answer any lawful question,
is guilty of a contempt of court.
Regulation 96 of the Civil Judgments Enforcement Regulations 2005 (WA) governs the procedure to be followed when a person is arrested pursuant to a warrant issued under s 29 of the Act. In summary upon arrest the judgment debtor must be brought before the court and, subject to certain conditions, the means inquiry may be conducted by the court.
The facts
The City read and relied upon the affidavit of Mr Adam Watts sworn on 9 October 2019. Mr Watts is the solicitor who has had the conduct of the means inquiry and this application on behalf of the City. The following facts are established by Mr Watts's affidavit.
On 10 July 2019 the City filed an application for a means inquiry to be held in respect of Mr Whincup.
On 31 July 2019 the court issued a means inquiry summons which required Mr Whincup to attend a means inquiry to be held at the Supreme Court at 2:15pm on Monday 9 September 2019.
On 14 August 2019 an affidavit of service was filed in the proceedings. That affidavit showed that on 8 August 2019 Mr Gerald McConnell effected service of the means inquiry summons when he handed the summons to Mr Whincup.
On 20 August 2019 Mr Whincup sent an email addressed to the Central Office of this court in which he stated:
I would like to inform the court I'm unable to attend any court appearance in regards to the City of Mandurah, this matter is currently under investigation.
With the Minister for Local Government David Templeman.
And Attorney General Jon Quigley.
I informed the City of Mandurah months ago regarding this matter.
Thank you
Brad Whincup
On 21 August 2019 an associate to a registrar of this court sent an email to Mr Whincup in response to his email of 20 August 2019 and stated:
Thank you for your email.
[The Registrar] has advised me to write to you as follows.
You are required to attend in accordance with the Means Inquiry Summons.
…
Mr Whincup did not attend the means inquiry on 9 September 2019. The City's counsel foreshadowed an application for a warrant for Mr Whincup's arrest. The registrar made an order that the means inquiry be adjourned to 2:15pm on 7 October 2019.
On 30 September 2019 Mr Whincup sent a further email to the court in which he stated:
I would like to appeal to the Supreme Court to have this matter set aside. I have lodged my concerns in regards to The City of Mandurah with Premier Mark McGowan.
At present, Premier Mark McGowan and the Attorney General are currently looking into this case on my behalf and I am awaiting a response.
I'm a 70 year old law abiding citizen and have been all my life. I'm certain that this matter will be sorted by the Premier's Office.
I thank you for your time on this matter
Thank You
Brad Whincup
On 1 October 2019 the registrar's associate sent an email to Mr Whincup in response to his email of 30 September 2019. The email was in the following terms:
You are summonsed to appear at a Means Enquiry before this Court on Monday 7 October at 2.15 PM.
The Registrar is unable to set aside the Summons. You are required to attend.
On 3 October 2019 the City sent an email to the court seeking an adjournment of the means inquiry listed to take place on 7 October 2019. The adjournment was sought on the basis that the City had not been able to complete its application for a warrant for Mr Whincup's arrest and the City anticipated that Mr Whincup did not intend to appear at the adjourned hearing on 7 October 2019. The hearing listed for 7 October 2019 was adjourned administratively without fixing a date for a further hearing.
I am informed that the next dates on which the means inquiry might be held are 2.15pm on 4 or 11 November 2019.
Disposition
It is important that Mr Whincup, and indeed other judgment debtors who may feel inclined to disobey a summons from this court, understand that disobeying a summons to attend a means inquiry without reasonable excuse is a serious matter. It constitutes a contempt of court.
This is not an application to commit Mr Whincup for contempt of court. That said, in order to impress upon Mr Whincup the seriousness with which the court views a failure to comply with its orders I should explain that the law of contempt of court aims to protect the public interest in the due administration of justice, that is, the resolution of disputes by adjudication in the courts. The authority of the courts and ultimately the rule of law are undermined if court orders are not obeyed. The courts have said on many occasions that those bound by court orders must understand that they cannot be disobeyed with impunity. The same observations apply to those who are required to attend court in answer to a summons.
Disobedience of court orders and summonses not only undermines the rule of law; it has unfortunate adverse and immediate consequences for all concerned. It increases litigants' costs. In this case those costs must be borne, at least initially, by the City's ratepayers. Further it gives rise to proceedings to enforce the processes of the court that ought not to be required. It involves an unproductive use of the court's time and a diversion of scarce judicial resources away from more pressing work.
The expression of concerns to the Premier and the Attorney-General of this State about the conduct of the City and Mr Whincup's belief that 'this matter will be sorted out by the Premier's Office' does not constitute a reasonable excuse for disobeying the summons to attend court.
The court has a discretion as to whether or not to issue a warrant under s 29(4) of the Act. In deference to Mr Whincup's declaration that he is a 70‑year‑old law abiding citizen, before determining this application I will allow Mr Whincup a final opportunity to attend the means inquiry voluntarily.
I will order that the means inquiry be relisted for hearing at 2.15pm on 11 November 2019 and will adjourn the present application for the issue of a warrant to 9.15am on 12 November 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Tottle24 OCTOBER 2019
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