Winn v Blueprint Printing Pty Ltd

[2006] VSC 134

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4215 of  2002

JULENE WINN	Plaintiff
v
BLUEPRINT PRINTING PTY LTD	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2006
DATE OF JUDGMENT:	27 March 2006
CASE MAY BE CITED AS:	Winn v Blueprint Printing Pty Ltd
MEDIUM NEUTRAL CITATION:	[2006] VSC 134

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Application by summons – contempt of Court – failure to obey order in a VCAT proceeding – adjournment – no merit in contempt applications or grounds for adjournment – application dismissed with indemnity costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance by or on behalf the Plaintiff.
For the Defendant	Mr D. Bailey of  Counsel	Herbert Geer Rundle

HIS HONOUR:

1. In this matter, which was commenced by summons issued on 21 July 2005, the plaintiff seeks an order punishing the defendant pursuant to RSC r. 75.06 for contempt of court, for failure to comply with an order of the Victorian Civil and Administrative Tribunal of 13 September 2001. The order was concerned essentially with the delivery up of four different documents or categories of document.

1. The matter has been listed before, and the trial date was vacated on Ms Winn's application. It  was last listed on 20 February last, but that date was vacated on Ms Winn's application, and today was fixed for the hearing.  Ms Winn was sent confirmation of that hearing by the Court, and gave no indication that she did not wish to appear and prosecute her application today.

1. This morning, in a fax received by the Court at 8.44 a.m, Ms Winn wrote to the Court saying that she "discovered that this matter was listed today only late yesterday".  She then set out in ten paragraphs what is, in effect, an application for an adjournment, although the grounds of it are somewhat unclear. 

1. In that letter Ms Winn says that she is now unrepresented, although she says she had been trying to obtain a solicitor and barrister to represent her.

1. She says that she was unable to access the court daily list until yesterday, and found that the matter was before Master Kings today and not for a hearing (sic).  She says she is confused by this.  Material on the file makes it abundantly clear that Ms Winn was informed that the hearing of this matter would take place today.  Her letter also refers to medication, and to the possibility of her being ill.

1. Be all that as it may, the defendant has appeared by counsel to defend the application, which is on its face a serious one.  Conviction for contempt carries for a company, the possibility of sequestration of its property.  It is accordingly a matter of grave concern to the defendant, which concern it has taken seriously by ensuring that counsel attended.

1. In the circumstances, the material proffered by the plaintiff is insufficient to justify a further adjournment of this matter with the costs, inconvenience, and vexation to the defendant that this would entail. In the absence of appropriate evidence on oath, a proper application for an adjournment and having regard to the history of the matter and the fact that the defendant opposes any adjournment of the hearing, the matter will proceed today in the absence of the plaintiff. Her application for an adjournment, if her fax can be so characterised, is refused.  

1. The order made by VCAT on 13 September 2001 was that four categories of documents be delivered to Ms Winn.  They were (1) Copies 4, 5 and 6 of Inscape (2) proof of cover, (3) final proof pages, and (4)  National Gallery Catalogue 2000.  That order was part of a wider order in favour of the defendant following a hearing before VCAT.  After the order was made, Ms Winn obtained a stay of the whole order for some period, thereby staying the order which was made in her favour.

1. In due course that stay was lifted, and the plaintiff issued enforcement proceedings and called in the aid of the Sheriff.  The affidavit material, which I have read, and in particular the affidavit of Christopher John Terry, sworn 1 August 2005, sets out the history of the matter from then. It is sufficient for present purposes to observe that the documents referred to in the VCAT order  ( save for those in paragraph 1) were sent to VCAT itself by the defendant and recovered from there by the Sheriff's officer on 15 April 2004. Those in paragraph 1 ( the copies 4, 5 and 6 of Inscape) were recovered by the Sheriff's officer from a Mr Rod Goodwin, who was also a respondent in the application before VCAT.

1. An affidavit of Kelvin Broderick Griffin, a senior Sheriff's officer, deposes to these facts. That affidavit was sworn on 29 June 2004. The affidavit of Mr Terry also exhibits a letter from Mr Lloyd Kopp, the divisional operations manager of the Sheriff's office, to Ms Winn of 21 May 2004. That letter informed her that the document the subject of the order awaited her collection.  Accordingly, whatever might have been the situation before that date by April 2004 the order of VCAT of 13 September 2001 had effectively been complied with. It was available for Ms Winn to collect at the time indicated in the Sheriff's officer's letter.

1. Contempt of court is a serious matter. It requires proof beyond reasonable doubt, because the consequences, as I have already indicated, can be severe.  I have read the affidavits of Ms Winn, which are on the court file, and I have noted that there is an affidavit with a number of exhibits which was filed as late as 24 March 2006.  That affidavit takes issue with some of the matters in Mr Terry's affidavit, and raises a number of matters which do not go to any issue in the application.

1. In the circumstances, on the material which I have read, I am not satisfied that the defendant has committed a contempt of court. I am also satisfied that the matter of complaint by the plaintiff does not justify, and did not justify, an application to have the defendant dealt with for contempt.  In the circumstances the plaintiff's application will be dismissed.

1. There is an application for costs on behalf of the defendant, such costs to be taxed on an indemnity basis. As I have found that there was no basis for the plaintiff having brought this application there is good reason to depart from the ordinary rule as to costs, and to order indemnity costs in this case.  Not only was there no basis for bringing the application, the plaintiff did not then prosecute it. It is appropriate that there be an order for indemnity costs. The plaintiff's application will be dismissed with indemnity costs.

1. I should say that in dismissing this application, I am conscious of the need to ensure that people who are not represented by solicitors are given every opportunity to present their case to the Court.  In this case, I am satisfied that  Ms Winn was given every opportunity to prosecute this case.  It is not appropriate that she should make an application for an adjournment in the way and  the time that she did and then assume that such an application would be granted so that she had no need to attend or to take any further steps to protect her position. The lack of merit in her application combined with this factor required it to be dealt with in the way it was.

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