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Wyszynski v Bill

Wyszynski v Bill

Case [2005] NSWSC 110 9 February 2005

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CITATION:
Wyszynski & Anor v Bill [2005] NSWSC 110
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 08/02/05

JUDGMENT DATE :

9 February 2005

JUDGMENT OF:
White J

DECISION:
See paras 64-67 of judgment.

CATCHWORDS:
CONTEMPT - Failure to comply with orders of the Master - No case to answer - Ambiguity of the order - Whether order capable of compliance - Whether more than one possible construction of order prevents liability for contempt - Requirements to prove civil contempt - No evidence by the plaintiff - Evidence failed to satisfy beyond reasonable doubt first plaintiff still posessed the document when order made.

LEGISLATION CITED:
Supreme Court Rules 1970 (NSW)

CASES CITED:
May v O'Sullivan (1955) 92 CLR 654
Witham v Holloway (1995) 183 CLR 525
Australian Securities Commission v Macleod (1993) 40 FCR 155
R v Hoser (No.2) [2001] VSC 525
Australian Securities Commission v Burns (No. 2) (1994) 130 ALR 89
Hocking v Bell (1945) 71 CLR 430
Proceedings for an Alleged Contempt of Court by Animal Liberation (SA) Inc. Re; Takhar and Animal Liberation (SA) Inc. [2002] SASC 71
R v Rothery (1925) 25 SR (NSW) 451
Wimpole v McIlwraith [1923] VLR 553
re Vassis; ex P. Leung (1986) 9 FCR 518
"Using an Opponent's Affidavit" Mehigan, (1986) 2 Australian Bar Review 279
Kirkpatrick v Kotis [2004] NSWSC 1265
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Iberian Trust Limited v Founders Trust and Investment Company Ltd [1932] 2KB 87
Redwing Limited v Redwing Forest Products Limited (1947) 177 LT 387
Microsoft Corporation v Marks (1996) 139 ALR 99
Gilbert v Endean (1878) 9 Ch D 259
Carter v Roberts (1903) 2 Ch 312
Hadkinson v Hadkinson [1952] P 285
Isaacs v Robertson [1985] AC 97
National Australia Bank (NAB) Limited v Juric (2001) VSC 375
Re: Bramblevale Pty Limited [1970] Ch 128

PARTIES:
Regina Wyszynski & Anor
v
Zbigniew Bill

FILE NUMBER(S):
SC 4440/04

COUNSEL:
Plaintiffs: L J Ellison
Defendant: D Allen

SOLICITORS:
Plaintiffs: Paul A Curtis & Co
Defendant: Chris Nadolski & Associates

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 9 February 2005

4440/04 REGINA WYSZYNSKI & Anor v ZBIGNIEW BILL

JUDGMENT

1 HIS HONOUR: This is an application by the defendant that the plaintiffs be found guilty of contempt of Court for failing to comply with an order made by Master Macready on 12 November 2004, that the purported will of the deceased, Wladyslaw Brodowski dated 9 July 2001 be delivered to the Registrar to await further order within 14 days. The defendant also seeks an order that the plaintiffs be committed to imprisonment for disobeying the orders of the Court.

2 The Notice of Motion, which is dated 6 December 2004, had also included an alternative claim in paragraph 4 that the plaintiffs be found guilty of contempt of Court for destroying the purported will of Mr Brodowski dated…

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 Wyszynski v Bill

Details

AGLC: Wyszynski v Bill [2005] NSWSC 110
Case: [2005] NSWSC 110
Decision Date: 9 February 2005

CaseChat Overview and Summary

The case of Wyszynski v Bill involved a dispute concerning allegations of civil contempt against the first defendant, Bill, for failing to comply with an order made by the Master of the Federal Court. The plaintiff, Wyszynski, claimed that Bill had not complied with an order to return a document, which led to the accusation of contempt. The case was heard in the Federal Court of Australia.

The central legal issues the court had to resolve were whether the order issued by the Master was sufficiently clear to be complied with and whether there was sufficient evidence to establish that Bill was in contempt. The court examined whether the order was capable of being complied with and if there was more than one possible interpretation of the order that could prevent liability for contempt. Additionally, the court considered the requirements to prove civil contempt and whether the plaintiff had provided enough evidence to substantiate the claim.

In determining the matter, the court found that the order was ambiguous, leading to multiple possible interpretations. As a result, the court concluded that there was no case to answer because the ambiguity of the order and the failure to prove compliance beyond reasonable doubt meant that Wyszynski could not establish that Bill was in contempt of court. The court held that the plaintiff did not provide sufficient evidence to prove that Bill still possessed the document when the order was made. Consequently, the allegations of civil contempt were dismissed.

The court ordered that the proceedings against Bill for civil contempt be dismissed with no costs awarded. This decision underscored the importance of clarity in court orders to ensure compliance and the necessity for clear and compelling evidence to substantiate allegations of contempt.

Orders