Wyszynski v Bill

[2005] NSWSC 110

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 9 July 2001, when the defendant had applied to the Court for the document to be delivered up. At the commencement of the hearing before me, counsel for the defendant, the applicant on the motion, said that he was not proceeding with the charge in paragraph 4 and it was dismissed.

3 The plaintiffs are both respondents to the motion. They did not give evidence. At the conclusion of the defendant's evidence counsel for the plaintiffs submitted that there was no case to answer. He also said that even if that submission were not upheld, he would not in any event call evidence. Submissions were made by both parties as to what findings should be made if I found there was a case to answer.

4 It is not immediately obvious what forensic advantage was served by adopting this approach. But the right of a defendant to a quasi-criminal charge to make an application that there is no case to answer and then, if the application is unsuccessful, to elect not to adduce evidence but to submit that the charge is not made out, is a right which is clearly established (May v O'Sullivan (1955) 92 CLR 654 at 658).

5 It was common ground that the charge of contempt must be made out beyond reasonable doubt (Witham v Holloway (1995) 183 CLR 525 at 545).

6 In dealing with the plaintiffs' submission that there was no case to answer, the question which I have to decide is whether, taking the evidence of the defendant at its highest, and drawing all inferences in favour of the defendant that are properly open on that evidence, and ignoring evidence and inferences favourable to the plaintiffs, the evidence is capable of supporting a finding that the charge has been proved beyond reasonable doubt (Australian Securities Commission v Macleod (1993) 40 FCR 155 at 157; R v Hoser (No.2) [2001] VSC 525 at [6]-[8].)

7 Thus at the stage of considering the plaintiffs' submission that there is no case for them to answer, any conflicts in the evidence are to be resolved, or more accurately disregarded, by taking the evidence of the defendant at its highest. However, in assessing what inferences are properly to be drawn from a witness's evidence, where there is no question of inconsistency or conflict in the evidence, the whole of the relevant evidence should be considered to determine whether it establishes or gives rise to an inference of guilt (Australian Securities Commission v Burns (No. 2) (1994) 130 ALR 89 at 102; Hocking v Bell (1945) 71 CLR 430 at 444).

8 In proceedings 106302 of 2003 in the Probate List of this Division the first plaintiff sought a grant of probate in solemn form of the alleged will of Wladyslaw Brodowski dated 9 July 2001. She claimed to be the sole major beneficiary of his estate. In his defence to those proceedings the defendant alleged in substance that the document propounded by the first plaintiff was a forgery. He also sought probate of a later will dated 28 June 2002.

9 On 27 October 2003 the solicitor then acting for the first plaintiff advised the defendant's solicitor that in view of the defendant's allegations, she had decided to have the will she was propounding examined by a handwriting expert. Her solicitors advised that the document would be released to the defendant's solicitors after that examination. However, the document was not provided to the defendant or his solicitor. On 3 May 2004 the plaintiff, with leave, withdrew her application for probate of the purported will of 9 July 2001.

10 She and the second plaintiff commenced new proceedings No. 4440 of 2004, on 11 August 2004, in which they allege on agreement that the deceased would leave his estate to the plaintiffs. After filing a defence and cross-claim, the defendant, on 25 October 2004, filed a Notice of Motion which sought amongst other things an order that the first plaintiff who is also the first cross-defendant) deliver up to him the purported will dated 9 July 2001.

11 That application was heard by Master Macready on 12 November 2004. The learned Master held that it was proper for the will to be delivered up to the Registrar as it was proposed to have it checked for its authenticity. The file copy of the Master's judgment which was tendered before me without objection then records the following:

“In the circumstances I order that the purported will of the deceased dated 9 July 2001 be delivered up to the Registrar to await further order within 14 days.
(Mr Allen requested that the will be delivered up by 5 pm next Tuesday, 16 November 2004.)
MASTER: What is the situation, Mr Patey, is it available to be delivered up?
PATEY: I am not sure if it can be done as quickly as that, Master. Perhaps by the end of the week?
ALLEN: We would have thought my friend’s instructing solicitor would have it.
MASTER: Where is it?
PATEY: I don’t know, Master.
MASTER: I will change it from 14 days to seven days. ”

12 Notwithstanding this last recorded statement of the Master, the Associate's record of the proceeding, which was also tendered and admitted without objection, recorded the Master having made the following order:

“I order that the purported will of the deceased dated 9 July 2001 be delivered up to the Registrar to await further orders within 14 days.”

13 I also allowed, over objection, evidence from the defendant's solicitor who was in court on 12 November 2004 that the Master made an order that:

“The purported will of the deceased be delivered up to the Registrar to await further order within 14 days.”

14 The plaintiffs were represented by counsel at the hearing before Master Macready. At that hearing no evidence was read for the plaintiffs. No submission was made on their behalf to the effect that the order sought by the defendant should not be made, as it could not be complied with, because the will dated 9 July 2001 was no longer in existence, or was no longer in the possession of the first or second plaintiffs.

15 The Master's order was not entered. Part 41, Rule 11(1) requires any judgment, or order given or made, to be entered. However, there are exceptions to that requirement in Rule 11 (3) and (4). One of the exceptions is where the order gives directions concerning the conduct of proceedings. It is at least arguable that that subrule is applicable to the order of Master Macready. Contrary to the plaintiffs' submissions, even if the order were required to be entered pursuant to Part 41, Rule 11 (1), the failure to do so would not mean that the plaintiffs could not be liable for contempt of the order if they had knowledge of its terms.

16 Part 42, Rule 6 of the Supreme Court Rules applies where an order is made requiring a person to do an act within a time specified in the order and the person "refuses or neglects" to do the act within the time so specified. In such a case, and subject to Part 42, Rule 8, the order may be enforced, where the person is an individual, by either or both of the committal of the person bound, or sequestration of his or her property (Part 42 Rule 6(2)). (I leave aside as being irrelevant to this case orders or judgments for the payment of money or for delivery of goods or their assessed value.)

17 Part 42, Rule 8 provides that a judgment (which includes an order) shall not be enforced by committal or sequestration unless: (a) the minute thereof is served personally on the person bound; and (b) the judgment or order requires the person bound to do an obligation within a specified time and the minute is served before that time expires. The minute is required to bear a notice in accordance with Part 42, Rule 8(3) specifying the consequences of default.

18 This procedure was not adopted in this case. However Part 42 Rule 8(6) provides:

Supreme Court Rules 1970
Service before committal or sequestration
……

(6) Where a person liable to committal or sequestration of his property by way of enforcement of a judgment has notice of the judgment:
(a) by being present when the judgment is directed to be entered or when the order is made, or
(b) by being notified of the terms of the judgment whether by telephone, telegram or otherwise,

the judgment may be enforced by committal of that person or by sequestration of his property notwithstanding that service has not been effected in accordance with this rule.

19 The defendant submitted that the case fell within this subrule. Hence the defendant must prove beyond reasonable doubt that the plaintiffs had been notified of the terms of the order.

20 In Proceedings for an Alleged Contempt of Court by Animal Liberation (SA) Inc. Re; Takhar and Animal Liberation (SA) Inc. [2002] SASC 71, Doyle CJ described the purposes of having an order entered and sealed and bearing the appropriate warning of the consequences of compliance. His Honour said (at [23]):

“When a court makes an order that can be enforced by contempt proceedings, and is likely to be so enforced, the interests of certainty and justice support having the order drawn up, having it sealed with the seal of the Court and having it served. Such a process is designed to resolve any differences or disputes about the terms of the order, to remove any doubt about the fact and authenticity of the order, and to provide a clear warning of the serious consequences that may follow from a failure to comply with the order.”

21 Those observations are apt to this case where there is a doubt as to the precise terms of the order made. It appears that the Rules of the South Australian Supreme Court do not, or did not, include a rule equivalent to Part 42 Rule 8(6) of the Rules of this Court. However his Honour's observations should be borne in mind by those who may be contemplating enforcing orders by motion for contempt in the event of non-compliance.

22 On 24 November 2004 the defendant's solicitor telephoned the Court Registry and was informed that the original will of Wladyslaw Brodowski dated 9 July 2001 had not been filed.

23 The proceedings were listed for mention before the Chief Judge of Equity on 3 December 2004. The plaintiffs were again represented by counsel (although different counsel than had appeared before the Master on 12 November 2004.) His Honour asked why the Master's order had not been complied with. Counsel for the plaintiffs responded:

“The female plaintiff filed an affidavit in response to the order. I have seen an unfiled copy. The female plaintiff had an anxiety attack during which she tore up the purported will.”

24 The affidavit of the first plaintiff to which counsel referred was sworn on 18 November 2004, six days after the Master's order. It was tendered by the defendant on the application before me in its entirety and without objection by the plaintiffs. The plaintiffs, or at least the first plaintiff, thus had the forensic benefit of the first plaintiff's explanation for the document not being produced being tendered in the defendant's case. She was not called to give oral evidence. Her statements in her affidavit of 18 November were not tested.

25 Contrary, however, to the plaintiff's submission, the defendant did not thereby become bound to accept as a fact the statements which the first plaintiff made (R v Rothery (1925) 25 SR (NSW) 451 at 461). The defendant may have been entitled to tender only those paragraphs of the first plaintiff's affidavit which contained admissions helpful to his case, subject to argument as to whether other paragraphs qualified those admissions. (Wimpole v McIlwraith [1923] VLR 553; re Vassis; ex P. Leung (1986) 9 FCR 518 at 520 (and see "Using an Opponent's Affidavit" Mehigan, (1986) 2 Australian Bar Review 279). However the fact that the defendant, doubtless for good reason, chose to tender the whole of the affidavit, does not mean that he is to be taken to have adopted, or is otherwise bound to accept, the whole of the first plaintiff's statements.

26 The first plaintiff's affidavit was admissible against her, but its tender did not make it admissible against the second plaintiff. I had earlier refused leave to the defendant to read the affidavit as the first plaintiff was not available to be cross-examined. No order was sought by the plaintiffs confining the tender to the case against the second plaintiff, but as the evidence was only admissible against the first plaintiff and as counsel for the plaintiffs opposed the reading of the affidavit, I will only make use of it in the case against the first plaintiff. Ultimately, however, the result of this application against the second plaintiff does not turn on whether the affidavit can be relied on against him or not.

27 The first plaintiff's affidavit of 18 November 2004 stated the following:

“2. I suffer from depression and anxiety attacks. I have been taking medication for a number of years.
3. I am aware that this Honourable Court has made an order for the production of the purported Will of Wladyslaw Brodowski dated 9 July 2001 (the Will) to be produced to the Court.
4. On 16 June 2004 I was admitted to St John of God Hospital suffering from anxiety and depression. I was discharged on 29 June 2004. Annexed hereto and marked “A” is a copy of the Nursing Discharge Summary.
5. On the 29th October 2004 I was alone at my home when I suffered an anxiety attack. I remember sitting in the lounge room drinking coffee when I started shaking all over and I had a very bad pain in my chest and a headache.
6. The next thing that I remember is my daughter coming home. When she came home I was sitting among a (sic) ripped papers, a broken cup and a broken vase. She cleaned up the mess and gave me some Ativan tablets.
7. When my husband was searching for other documents including the Will a couple of days latter (sic) he could not find it. I believe that I must have destroyed the Will when I had the anxiety attack.
8. I have searched all of the documents held by me and cannot find the original Will. “

28 Counsel for the plaintiffs submitted that there was no case to answer on four grounds.

29 First, he submitted that the Master's order was ambiguous as to who was required to produce the document and when the document was to be produced. He submitted that the consequence of ambiguity was that the order was unenforceable by proceedings for contempt. Secondly, he submitted that the evidence only established that the plaintiffs had failed to produce the document by 24 November 2004, that is less than 14 days after the order. He submitted that the evidence was not capable of establishing beyond reasonable doubt that the document had not been produced within 14 days of the order being made. Thirdly, he submitted that the evidence was not capable of establishing beyond reasonable doubt that the plaintiffs knew or had notice of the terms of the order. Fourthly, he submitted that the evidence was not capable of establishing beyond reasonable doubt that the plaintiffs were able to comply with the order.

30 I deal first with the argument based on ambiguity. This subject was considered recently by Campbell J in Kirkpatrick v Kotis [2004] NSWSC 1265. After discussing the judgments in Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 his Honour (at [50]) concluded that in that case, Windeyer and Owen JJ adopted the approach of deciding whether the undertaking to the Court was ambiguous, and if it was, to conclude that it should not be enforced. (The same principles apply to orders of the Court as they do to undertakings given to the Court.) By contrast Barwick CJ adopted the approach that the Court should first construe the undertaking and then determine whether the meaning arrived at is one which the defendant might fairly be expected to have contemplated when giving the undertaking. (See 112 CLR at 491.)

31 His Honour took the views of Owen and Windeyer JJ as stating the Australian Law.

32 However, as Campbell J observed at [53], Australian Consolidated Press Ltd v Morgan did not decide the standard by which ambiguity must exist before an undertaking is unenforceable by contempt proceedings.

33 No argument was addressed to me upon Australian Consolidated Press Limited v Morgan, but it appears to me, with respect, that there were not two, but three, views expressed in that case as to the consequence of ambiguity to contempt proceedings. Barwick CJ expressed the views which Campbell J cited in Kirkpatrick v Kotis at [49-50] and to which I have referred above. Owen J applied the statement of Luxmore CJ in Iberian Trust Limited v Founders Trust and Investment Company Ltd [1932] 2KB 87 at 95 that:

“If the Court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done."

Owen J likewise applied the statement of Jenkins J in Redwing Limited v Redwing Forest Products Limited (1947) 177 LT 387 that:

“a defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken his undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question.”

34 Whilst Windeyer J (at 506) agreed with the view expressed by Owen J in his judgment that the undertaking must be clear and the breach certainly established, Windeyer J's conclusion was not based on there being uncertainty in the syntactical construction of the undertaking, but on there being uncertainty as to what the undertaking denoted. His Honour said (at 503):

“This is not a case in which the extent of obligations undertaken is ascertainable simply by construing the undertaking according to ordinary grammatical rules. If that were so, I would agree that a mistake in construction could not excuse disobedience, although it might perhaps mitigate its consequences. Those who give undertakings to a court are bound by the language they use. If its true meaning, although not immediately plain, can be ascertained according to ordinary rules of construction, then the person giving the undertaking is bound by it in that sense. But the uncertainities that lurk in the words of this undertaking, and which were exposed during the argument, cannot be resolved in that way, for they do not arise from a debatable construction but from an uncertain denotation.”

35 The ambiguities in this case are ambiguities of construction. Whilst it might mitigate the consequence of a breach if the plaintiffs had said that they understood the order in a certain sense which did not require compliance in the way for which the defendant contends, I do not accept that merely because there is more than one possible construction of the order, that the plaintiffs cannot be liable for contempt. As Lindgren J said in Microsoft Corporation v Marks (1996) 139 ALR 99 at 121, a difficulty in the construction of the order which the Court must resolve does not signify that there can be no finding of breach of the order once the true construction is found.

36 At the very least to absolve an alleged contempt the ambiguity must be such that on one reasonable view of the contempt alleged, the contemnor was not in breach. (See Redwing Limited v Redwing Forest Products Limited (1947) 177 LT 387 (at 390)). This follows from the requirement that any ambiguity relevant for this purpose must carry the real risk of misleading the person bound by the order Kirkpatrick v Kotis at [55], Microsoft Corporation v Marks (1996) 139 ALR 99 at 121).

37 I will deal first with the ambiguity as to the person to whom the order was directed. No person was named as being obliged to produce the document. There are three possibilities. First, the order may have been directed to the first plaintiff. It was against her that the order was sought in the notice of motion before the Master. Secondly, it may have been addressed to both plaintiffs. That is what the defendant contended before me. Both plaintiffs were parties to the application before the Master. Thirdly, it may have been directed to whichever of the plaintiffs had possession of the document at the time the order was made.

38 I construe the order by reference to the process which led to its being made. As the order was only sought against the first plaintiff I construe it as being directed to the first plaintiff. It follows the second plaintiff is not liable for contempt.

39 The fact that there are other possible constructions to the order does not relieve the first plaintiff from liability. If the order properly construed is directed to both plaintiffs she would still be subject to it. If properly construed it is directed to whichever of them had possession of the alleged will at the time the order was made, then considering the defendant's evidence at its highest, I can infer that at that time it was in her possession.

40 Taking the defendant's case at its highest I can infer that if the will were not in existence at the date of the hearing on 17 November 2004, the first plaintiff, against whom the order for production was sought, would have advised her legal representatives of that fact as they were retained to appear on her behalf to resist the order.

41 I can infer from the statement of her counsel to the Master that he did not know where the document was, that she gave no such advice to her legal representatives. I could also infer that she had had possession of the document in 2003 because she had determined to submit it for forensic examination. I could infer that that possession continued if I disregard her statements in her affidavit of 18 November 2004, which I should do on the submission there is no case to answer. On dealing with a submission of no case to answer, I am not bound, nor entitled, to consider the inconsistent direct evidence of the first plaintiff. Hence I can infer that at the date of the order she had the document and was capable of complying with the order.

42 Accordingly in my view the existence of debatable constructions as to whom the order is addressed, does not create a relevant ambiguity such as to absolve the first plaintiff from any charge of contempt.

43 The second claimed ambiguity in the order is as to the time the document was to be produced to the Court. The “order" for this purpose is the order proved by the tender of the appropriate record and by the defendant's solicitor's evidence as to what the Master said. That is the order the subject of the charge. If the transcript of the Master's judgment is accurate, the Master amended the order by shortening the time for compliance. However, the defendant did not assert that that was the order made. Nor did the plaintiffs do so, presumably because if either of them were in contempt, he or she would also have been in contempt of the order fixing a shorter time for compliance.

44 There are again three possible constructions of the order. First, it may have required delivery of the document within 14 days. Secondly, it may have required delivery by an unspecified time and directed that further orders following delivery should be made within 14 days after delivery. Thirdly, it may have required delivery in a sufficient but unspecified time to permit a further order to be made with respect to the document within 14 days of the making of the order.

45 The first construction is clearly the preferable one. Even assuming that it is not legitimate to construe the order by the Master's subsequent comments when he shortened the time for compliance, (a question upon which I have not received submissions), nonetheless the alternative construction would be absurd. On the second construction the order for delivery would be unenforceable until a time for delivery was later fixed. (Gilbert v Endean (1878) 9 Ch D 259 at 266; Carter v Roberts (1903) 2 Ch 312 at 321, cited in Ritchie’s Commentary on Part 40 Rule 4 at paragraph 40.4.1). In Carter v Roberts, Byrne J was not prepared to say that there could not be cases where there was such a gross breach of an undertaking, although no time was fixed, as to justify a committal. Nonetheless it would be unusual, to say the least, for the Master to purport to direct an unnamed registrar or perhaps other judicial officer to make an order of an unspecified kind on an unspecified application, which application would have to be made with that unspecified time, all within 14 days of delivery of the document to the Court, and with there being no order requiring the defendant to be notified when the document was delivered to the Court. It would be all the more curious to make such an order without fixing any time for the delivery of documents.

46 The same applies a fortiori to the third suggested construction of the order. Whatever be the difficulties with the syntax of the order, I am satisfied that there was no relevant ambiguity as to the time required for the delivery of the document. Delivery of the document was required within 14 days of the order.

47 On the case against the first plaintiff, I do not accept her counsel's submission that there was no case to answer on the first ground relied upon.

48 Turning to the second submission, it was for a time submitted that the evidence only established that as at 24 November 2004 the document had not been produced to the Court. This was less than 14 days after the Master's order. However, the statement made by counsel for the plaintiffs on 3 December 2004 and the affidavit of the first plaintiff which is admissible against her are clearly capable of establishing beyond reasonable doubt that the document has not ever been produced to the Court.

49 The next issue is whether there is evidence capable of showing beyond reasonable doubt that the plaintiffs had notice of the terms of the order. Although it is unnecessary to decide the point in the case against the second plaintiff, having regard to my earlier finding as to the proper construction of the order, I am in any event of the view that there is no such evidence as against him. It was submitted for the defendant that I could infer that the plaintiffs' solicitor would have communicated the terms of the order to both plaintiffs. However, I can draw no such inference, particularly as no order for production was sought against the second plaintiff. It is mere conjecture that he had knowledge of the order.

50 The position of the first plaintiff however is different. She deposed on 18 November 2004 that she was aware that the Court had made an order for the production to the Court of the purported will. I can infer that she was told what the order was made.

51 I turn then to the fourth submission. Taking the evidence of the defendant at its highest, and disregarding inconsistent evidence favourable to the first plaintiff, I do not consider that the evidence is incapable of proving beyond reasonable doubt that the first plaintiff was able to comply with the Master's order. This is for the same reasons that I have given as to why the evidence is capable of raising the inference that she had possession of the document at the date of the order. If she did, she could have complied with it.

52 For these reasons I reject the submission that the first plaintiff has no case to answer. However, I uphold that submission in the case of the second plaintiff on the grounds: first, he is not subject to the order; and in any event secondly, the evidence is not capable of establishing beyond reasonable doubt that he was notified of its terms.

53 It is then necessary to consider, having regard to the whole of the evidence adduced, whether I am satisfied beyond reasonable doubt that the charge against the first plaintiff is made out.

54 In her affidavit of 18 November 2004, which the defendant tendered, the first plaintiff deposed to events which, if true, would mean that she was not capable of complying with the order.

55 She swore that she believed that the document was destroyed during an anxiety attack on 29 October 2004 during which, according to her, she ripped papers and broke a cup and a vase without having any memory of having done so. She also said that she had searched all of the documents that she had and could not find the document.

56 The defendant submitted that it did not matter whether the first plaintiff could comply with the order or not. The order had been made. If it could not be complied with the first plaintiff was bound to seek its discharge. If she did not do so she was nonetheless in breach of the order and liable to be punished for contempt.

57 I do not accept this submission. It does not appear to be supported by authority. There is an undoubted principle expounded by Romer LJ in Hadkinson v Hadkinson [1952] P 285 at 288 that:

“It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of a competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact it extends even to cases where the person affected by an order believes it to be irregular or void. Lord Cottenham LC said in Chuck v Cremer (1):

‘A party, who knows of an order, whether null or valid, regulare or irregular, cannot be permitted to disobey it... they should come to the court and not take upon themselves to determine such a question’.”

(And see Isaacs v Robertson [1985] AC 97).

58 However, this principle says nothing about a person who is unable to observe a court's order. In National Australia Bank (NAB) Limited v Juric (2001) VSC 375 Gillard J stated the essential requirements to prove a civil contempt of court involving a breach of the order of the Court as follows:

“1. That an order was made by a court.
2. That the terms of the order are clear, unambiguous and capable of compliance .
3. That the order was served on the alleged contemnor or excused in the circumstances or service dispensed with, pursuant to the Rules of Court.
4. That the alleged contemnor has knowledge of the terms of the order.
5. That the alleged contemnor has breached the terms of the order.”
[At [37]. Emphasis added.)

59 The power to punish for contempt under Part 42 r 6(1)(a) or (b) arises where the person "refuses or neglects" to do the act which the Judgment or order requires. A person does not "refuse or neglect" to do an act which he or she is incapable of performing. Hence in Re: Bramblevale Pty Limited [1970] Ch 128 the UK Court of Appeal held that because the evidence did not establish beyond reasonable doubt that the alleged contemnor had the documents which he was ordered to produce when the order for production was made, the charge of contempt was not established. This conclusion is inconsistent with the defendant's submission.

60 If the version of the events described by the first plaintiff in her affidavit is true it could not be said that she refused or neglected to comply with the Master's order. I have considerable scepticism about her version of those events. But the question is not whether I believe her evidence, but whether it raises a reasonable doubt as to whether she could comply with the order. There was no medical evidence to show that the behaviour which the first plaintiff described could not be the consequence of an anxiety attack. Because of the way the evidence emerged there was no cross-examination of the first plaintiff.

61 In the end the only basis on which I consider I might be justified in not finding that her evidence raises a reasonable doubt is the inference which I draw that the first plaintiff did not tell her legal representatives about the likely destruction of the document before the hearing on 17 November before the Master. However, because she was not cross-examined this was not a matter which could be put to her. It would be speculative to say that there could be no good reason for her not to have disclosed to her legal representatives the matters set out in her affidavit. In this somewhat unsatisfactory state of affairs I am not satisfied beyond reasonable doubt that the first plaintiff still possessed the document when the order for its delivery was made by the Master. Therefore I am not satisfied beyond reasonable doubt that she refused or neglected to comply with the Master's order. I therefore dismiss paragraphs 1 and 2 of the notice of motion dated 6 December 2004 as against both plaintiffs. It follows that the balance of the notice of motion should also be dismissed.

[Counsel addressed.]

62 I dismiss the balance of the notice of motion. If the defendant considers that there are grounds notwithstanding the dismissal of the motion for contempt to maintain a claim for the stay of the proceeding then that application should be brought by separate motion.

63 So the order I make is the notice of motion of 6 December 2004 be dismissed. I also order that the defendant pay the plaintiff's costs of the motion.

64 The plaintiffs sought an order not only that the defendant pay their costs if they were successful on the motion, but that orders should be made that the costs so payable be paid by the defendant personally and that the plaintiffs should have a further right to recover the costs from the estate.

65 It was submitted that in the event I dismissed the plaintiff's notice of motion the defendant should pay his own costs with no right to recourse to the estate. The claim before me did not address in any detail the circumstances relating to the estate, and I do not consider the mere pendency of the plaintiff's claim is a sufficient reason to make the orders sought. I decline to make any other order as to costs.

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03/03/2005	-	- Paragraph(s)
01/07/2005	-	Para 58(2) 'ambiguous' replaced by 'unambiguous' - Paragraph(s) 58