Young v Smith
[2016] NSWSC 1051
•2 August 2016
|
New South Wales |
Case Name: | Young v Smith (No 3) |
Medium Neutral Citation: | [2016] NSWSC 1051 |
Hearing Date(s): | 4 – 5, 19 February 2016 |
Date of Orders: | 2 August 2016 |
Decision Date: | 2 August 2016 |
Jurisdiction: | Common Law |
Before: | Rothman J |
Decision: | (1) The defendant, Josephine Aapa Smith, is guilty of Contempt of Court in that on 2 February 2015 the defendant dealt with property located at Wharf 8, level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont – Title reference 14/SP80052, by encumbering it by means of a mortgage in favour of Westpac Banking Corporation in circumstances where the Court had, to her knowledge, restrained such conduct in relation to that property. |
Catchwords: | CONTEMPT OF COURT – ex parte restraining orders issued – subsequent order of Court that “orders remain in force” – whose orders have been breached – does it matter? – inferences to be drawn from application of legal representatives – knowledge and understanding of Contemnor. |
Legislation Cited: | Bankruptcy Act 1966 (Cth) |
Cases Cited: | Bell v Thompson (1934) 34 SR (NSW) 431 |
Category: | Principal judgment |
Parties: | Joanne Elizabeth Young (Plaintiff/Applicant) |
Representation: | Counsel: |
File Number(s): | 2015/262082 |
JUDGMENT
HIS HONOUR: By Summons filed 7 September 2015, the applicant, Joanne Elizabeth Young, charges the respondent, Josephine Aapa Smith, with contempt and seeks orders that the respondent be found guilty of contempt and be punished for disobeying an order of the Court.
On 8 September 2015, the applicant filed an Amended Summons and on 4 February 2016, the applicant moved the Court for a further amendment in accordance with a document entitled Further Amended Summons.
The Amendment to Summons
The filing and reliance upon the amendment moved on 4 February 2016 was opposed by the Contemnor. The basis for that opposition was that the Supreme Court Rules 1970, by Pt 55 r 7, provide that the statement of charge, specifying the contempt, shall be subscribed to, or filed with, the Notice of Motion alleging contempt.
As articulated, the submission of the Contemnor is that the Court does not have jurisdiction to amend the charge. No submission is made that the Contemnor was not aware of the proposed amendment, nor unable to deal with the charge as amended. No adjournment was sought or foreshadowed should an amendment be made to the charge.
The Court, on 4 February 2016, allowed the amendment. The Further Amended Summons particularised the contempt in more detail than had previously been done.
The terms of Pt 55 r 7 of the Supreme Court Rules (“SCR”) must be read in the context of the rules as a whole. While the terms of SCR Pt 55 r 7 prevail, notwithstanding any consistency with the Uniform Civil Procedure Rules 2005 (“UCPR”), the terms of the Supreme Court Rules must be read as a whole, as must the terms of the Uniform Civil Procedure Rules.
Ordinarily the rulemaking power conferred by s 124 of the Supreme Court Act 1970 does not entitle the Rules Committee to make rules inconsistent with the Uniform Civil Procedure Rules. The only exceptions are those for which express provision is made. By operation of UCPR r 1.7, read in conjunction with Schedule 2, SCR Pt 55 r 7 prevails over the Uniform Civil Procedure Rules to the extent of any inconsistency.
In my view, there is no inconsistency between the requirement to have subscribed to the Summons or Notice of Motion and filed with the Summons or Notice of Motion a statement specifying the contempt and the powers otherwise available to amend documents. If that were not the case, then the Court would be able, in any event, to dispense with the requirement in Pt 55 r 7 in accordance with the provisions of s 14 of the Civil Procedure Act 2005. Contempt proceedings are civil, even though the punishment and “crime” may not be (depending on the nature of the contempt). In this case, the contempt involves an alleged disobedience of, or failure to comply with, an injunction and would therefore involve civil proceedings.[1]
[1] Matthews v ASIC [2009] NSWCA 155 at [154] (per Basten JA).
The purpose of SCR Pt 55 r 7 is to provide the person concerned with due notice and to accord a proper opportunity to answer the charge. It is a fundamental of the rules of procedural fairness and/or natural justice that a person charged with an offence, even under the common law, or especially under the common law, is entitled to a reasonable opportunity to prepare and to present her or his case (including to test the case against her or him).[2]
[2] Sullivan v Department of Transport (1978) 20 ALR 323 at 342 and 343 (per Deane J); Re Coldham; Ex Parte Municipal Officers Association of Australia (also cited as Re Architects of Australia Association; Ex Parte Municipal Officers’ Association) [1989] HCA 13; (1989) 84 ALR 208; United Voice v Restaurant and Catering Association of Victoria [2014] FCAFC 121; (2014) 226 FCR 255.
As earlier stated, the purpose of the provisions of SCR Pt 55 r 7 is to ensure a party charged with contempt is in a position to answer the charge. The Rule is an express particular of the rules of procedural fairness.
In this case, the Contemnor was, if the amendment were allowed, in a position to meet the charge as amended. Allowing the amendment would not defeat the purpose of the Rule. The power to punish contempt, committed otherwise than in the face of the court, is one of the hallmarks of a superior court of record.[3] As such, the power to punish contempt, committed otherwise than in the face of the court, is reposed in civil courts that otherwise do not exercise a criminal jurisdiction.
[3] See R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (Australian Section) [1951] HCA 3; (1951) 82 CLR 208 (per Latham CJ).
The original jurisdiction for contempt arose out of actions for damages for defamatory words.[4] As such the proceedings are historically civil, even though the result may, in the case of a contumacious or contumelious contempt, be criminal and even though the applicant must prove the case against the Contemnor on the highest standard of beyond reasonable doubt.
[4] See Seton v Cokeside [1358] Y.B. 30 and Northampton’s Case (1344) 82 SS 36.
The provisions of the Civil Procedure Act apply to proceedings for contempt of court and the Court has the power, subject always to the rules of procedural fairness, to waive compliance with the rules and to allow the amendment of documents. Given the absence of any prejudice asserted by the Contemnor and no lesser capacity to prepare or to present her case (or test the applicant’s case), the amendment proposed in the Further Amended Summons was allowed.
Further, even if the criminal procedure were to apply, a prosecutor is permitted, subject to the leave of the Court in which procedural fairness is an essential factor, to amend a charge in order to provide more or different particulars.[5]
[5] See Criminal Procedure Act 1986 s 20, s 21; R v Dossi (1918) 13 Cr App R 158; R v Clarke (1993) 71 A Crim R 58; Borodin v R [2006] NSWCCA 83; R v Johal [1973] Q.B. 475; and MM v R [2011] NSWCCA 262.
History of Proceedings
It is appropriate for the Court to set out a history of the proceedings that gave rise to the judgments of which it is said the Contemnor is in contempt and to the proceedings for contempt. On one view at least, it is unnecessary. I set out the history only for the purpose of background.
Ultimately the contempt will arise, or it will not, regardless of the history. Nevertheless, the history is necessary as background, in order to understand how the current proceedings came before the Court.
The applicant, Ms Young, married Mr Young in 1992 and they separated in 1999. She was Mr Young’s second wife. The Contemnor, Ms Smith, is (or was at all relevant times) Mr Young’s de facto partner. She has been in that position since about 1999.
At the time that Mr Young and Ms Smith commenced their de facto relationship, Mr Young’s assets consisted of 50% shareholding in a number of companies (the identities of which, presently, are irrelevant).
In or about 2001 an agreement was executed which recited the contemplation of Mr Young and the Contemnor as to the purchase of residential property for the purpose of it being their residence, that the residential property purchased by them for their joint use, shall be the property of the Contemnor, regardless of the identity of the persons on the registered title.
The applicant, Mr Young’s second wife, was the manager of a hotel owned by one of the companies of which she and Mr Young were each half owners. In July 2006, Mr Young removed the applicant from the hotel premises and made allegations that she had misappropriated monies belonging to the hotel. Those charges were all dismissed.
The applicant brought proceedings against Mr Young for malicious prosecution and/or damages for related or similar causes of action. There were also proceedings relating to a property settlement claim that had been cross-vested from the Family Court of Australia to this Court.
In May 2007, Mr Young and the Contemnor purported to enter into a contract for the purchase of a property at Pirrama Road in Pyrmont (“the Property”). They purported to be joint tenants. The purchase price was something over $4.5 million. The transaction was completed in or about July 2008 and funded through a loan extended to the company that owned the hotel, with Mr Young and the Contemnor each granting the lender a mortgage and guarantee.
The proceedings for the property settlement and for malicious prosecution were heard by the Court and orders made on liability, with separate questions being referred to an Associate Justice. As a consequence of that referral, Harrison AsJ determined, on the basis of proceedings before her, that Mr Young’s assets were valued at or above $9 million.[6]
[6] Young v Young [2012] NSWSC 1230.
On 11 April 2013, the Court ordered that Mr Young pay the applicant $2,663,000 and weekly maintenance.[7] Further, the Court found that Mr Young had deliberately deceived police in relation to the charges based upon allegations made by him and awarded damages for malicious prosecution of $165,000.
[7] Young v State of New South Wales and Ors; Young v Young (No 2) [2013] NSWSC 330.
On 23 September 2013, the residential premises said to be registered in the name of Mr Young and the Contemnor, and described above, were transferred to the Contemnor. Further, the hotel from which the applicant was excluded was sold in May 2014 and the company that owned it put into liquidation. The Liquidator realised its assets which included a car park adjacent to the hotel.
On 5 June 2014 Bankruptcy Notice 172322 was issued at the instigation of the applicant in relation to the judgment debt. The Bankruptcy Notice could not be served.
On 7 August 2014, the Contemnor, acting under a Power of Attorney on behalf of Mr Young, executed a Memorandum of Transfer between Mr Young and herself in relation to Mr Young’s interest in the Property. The purported consideration for the transfer was $1.8 million, which was never paid.
On 29 August 2014, the applicant made an ex parte application to this Court for freezing orders. The Court made orders restraining Mr Young and the Contemnor from dealing with any of their assets, including the Property, until further order of the Court. That order issued on 29 August 2014. The judge who issued the orders was Bellew J. The terms of that order will be recited later in these reasons.
On 1 September 2014, Mr Young initiated an application under s 55(2) of the Bankruptcy Act 1966 (Cth) in which he stated that his interest in the property was worth 50 per cent of $5.5 million and was sold for $1.8 million. The document, in the relevant column, or entry, indicated that Mr Young had received no money for that share or that transfer. Mr Young also identified the Contemnor as a secured creditor in or to the sum of approximately $4 million. Mr Young was declared bankrupt on 2 September 2014, on his own application.
On 4 September 2014, the Court issued orders, the terms of which will be repeated later in these reasons.
On 2 February 2015, the mortgage, to which reference is made above, was executed and a sum of $5.8 million was advanced
On 15 April 2015, the Court (Sackar J) issued reasons for judgment dealing with the ownership of the property. On 5 May 2015, orders issued purporting to give effect to the reasons for judgment.
On 6 June 2015, some of the orders that issued on 5 May 2015 were set aside, declarations were made on the ownership, the effect of which was that, subject to a registered mortgage, the Contemnor held the Property subject to one half share on trust for Mr Young, but not so as to interfere with any interest of the applicant.
Orders and Proceedings on 29 August and 4 September 2014
As earlier stated, ex parte interlocutory orders were sought in relation to the dealings with the property. Those proceedings were heard by Bellew J at which time the Court issued the following orders:
“1 Pursuant to UCPR 25.11, the Defendant is restrained from removing, disposing of, dealing with, or diminishing the proceeds received from the Respondent, Josephine Aapa Smith in respect of the sale of his share of the property located at Apartment Wharf 8, Level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont, title reference 14/SP80052 (‘The Property’) pending further order of the court.
2 Pursuant to UCPR 25.11, the Defendant is restrained from disposing of, dealing with, encumbering, or diminishing his assets valued at more than $1,000 pending further order of the court.
3 Pursuant to UCPR 25.11, the Respondent is restrained from disposing of, dealing with, encumbering, or diminishing the value of The Property pending further order of the court.
4 Pursuant to UCPR 25.11, the Respondent is restrained from disposing of, dealing with, encumbering, or diminishing her assets valued at more than $1,000 pending further order of the court.
5 The service of the notice of motion, affidavit, along with a copy of these orders and supporting documents is to be by:
(a) email to xxx; as well as
(b) by text message to the mobile telephones of the Defendant and Respondent notifying each of them of the fact of service to the above email address.
6 The Plaintiff is granted leave to issue a subpoena directed to Ms Chang at Buckingham Lawyers returnable at 9.00am on 3 September 2014. In respect of the subpoena, time for service is abridged to 5.00pm on 29 August 2014.
7 The matter is stood before the duty judge on Thursday 4 September 2014 at 10.00am.
8 Liberty to all parties to apply on 24 hours’ notice.
9 Costs of the Notice of Motion are reserved.”
On 4 September 2014, pursuant to the direction issued in [7] on 29 August 2014, recited above, the matter was heard by the Court in its Duty List. On that day, the Contemnor was represented by Mr Heath and Ms Petrolo of Counsel who, on behalf of their client, made application on Motion, filed in Court, by leave of the Court, to discharge the orders of Bellew J. For that purpose the Contemnor relied on an Affidavit of David Baker dated 4 September 2014.
The Motion and Affidavit in support sought orders of the Court vacating the orders of 29 August 2014 and, in lieu thereof, providing to the Court an undertaking not to deal with the whole of the Property pending further order of the Court and the prosecution of the proceedings. The applicant sought orders in a document, Short Minutes of Order, handed to the Court.
After argument, the Court announced the following orders:
Vacate Order 4 of the orders made by Bellew J;
Further, to the extent that orders otherwise are relevant to any continuing act, they continue to be extant.
In relation to the Short Minutes handed up by Mr Campbell SC (Counsel for the applicant), the Court made the following orders:
it did not make order 2;
order 3 was made on the following terms:
“firstly, leave is granted for Subpoenas in appropriate form for what are otherwise considered to be financial records in relation to transactions or matters that relate to the defendant, Leslie James Young; Order 4 is made; the matter is listed before the Duty Judge on 15 September and the Court noted that it was a matter for the Duty Judge as to when, during the course of that week, the matter will be heard, if it needs to be heard, but he or she will deal with that allocation when it arises. Reasons were reserved.”
The foregoing orders were announced in Court on 4 September 2014. For reasons which are inexplicable, the following orders were entered:
“1. Vacate order 4 of the orders made by his honour Bellew J on 29 August 2014 to the extent the orders otherwise are relevant to any continuing act they continue to be extant.
2. In relation to the Short Minute Orders,
a. Pursuant to UCPR25.12,by 4pm on 12 September 2014,the defendant to file and serve an affidavit of assets held by him(including any acquired or disposed of assets)worth more than $1,000.00 in the period of April 2013 to the date of the affidavit relating to the following individuals and entities:
i. The defendant;
ii. Josephine Aapa Smith;
iii. Jetobee Pty Limited;
iv. Smith and Young Pty Limited;
v. LJ & CA Young Pty Limited;
vi. Nouveu Contractors Services Pty Limited.
b. Leave is granted to the plaintiff the (sic: [to]) file and serve, by 5.00pm on 5 September 2014, subpoenas for financial records in the period from 31 December 2012 to date for each of the individuals and entities referred to in paragraph 2(a) above with the subpoenas to be returnable at 9.00am on 11 September 2014. Order 3 is made with the following qualification. Firstly, that leave is being granted for subpoenas in appropriate form for what are otherwise considered to be financial records in relation to transactions or matters that relate to the defendant Leslie James Young.
3. The matter is listed before the duty judge on 15 September 2014.
4. Reasons reserved.
5. Costs ought to be costs in any cause arising from these matters or relating to these matters associated with the respondent.”
At the time that the orders were announced in Court, on 4 September 2014, the Contemnor was represented before the Court. Counsel for the Contemnor sought an explanation of the orders and was told that Order 4 in the form arising following the proceedings before Bellew J was vacated and “otherwise the orders of Bellew J stand”.
Reasons for the orders were reserved and on or before 28 October 2014 reasons for judgment issued.[8] The reasons for judgment recited, on the coversheet thereof, the orders in the following terms:
[8] Young v Young [2014] NSWSC 1475.
“(1) Vacate order 4 of the orders made by Bellew J on 29 August 2014;
(2) Otherwise the orders of Bellew J remain in force;
(3) In relation to the Short Minute of Orders,
(a) Pursuant to 25.12 of the Uniform Civil Procedure Rules 2005, by 4pm on 12 September 2014, the defendant to file and serve an affidavit of assets held by him (including any acquired or disposed of assets) worth more than $1,000.00 in the period of April 2013 to the date of the affidavit relating to the following individuals and entities:
(i) The defendant;
(ii) Josephine Aapa Smith;
(iii) Jetobee Pty Limited;
(iv) Smith and Young Pty Limited;
(v) LJ & CA Young Pty Limited;
(vi) Nouveu Contractors Services Pty Limited;
(b) Leave is granted to the plaintiff the file and serve, by 5.00pm on 5 September 2014, subpoenas for financial records in the period from 31 December 2012 to date for each of the individuals and entities referred to in paragraph 3(a) above with the subpoenas to be returnable at 9.00am on 11 September 2014. This order is made with the following qualification, namely, that leave is being granted for subpoenas in appropriate form for what are otherwise considered to be financial records in relation to transactions or matters that relate to the defendant Leslie James Young;
(4) The matter is listed before the duty judge on 15 September 2014;
(5) Reasons reserved;
(6) Costs be costs in the cause arising from these matters or relating to any matter arising against the respondent.”
The Terms of the Orders
The foregoing recitation shows a difference in the wording of the orders of the Court on 4 September 2014, as entered, as against the orders pronounced in Court. The orders pronounced in Court accord, with insignificant changes, with the orders contained in the reasons for judgment and published with the reasons for judgment. The Contemnor does not suggest that there is any, or any substantial, difference between the orders as pronounced, the orders as entered, or the orders as published with the reasons for judgment and eschewed any argument on that basis.
It is therefore unnecessary to deal with any issue that may arise from the alteration in wording.
The Charge
The applicant, by her Further Amended Summons, sought the following orders:
“1. The Respondent, Josephine Aapa Smith, be found guilty of contempt of this Court for failing to comply with the order made by Justice Rothman on 4 September 2014, which restrained the Respondent from disposing of, dealing with, encumbering or diminishing the value of the property located at Wharf 8, level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont – Title reference 14/SP80052 pending further order of the Court.
2. The Respondent be punished for disobeying the said order of this Court and that a warrant issue accordingly.
3. The Sherriff be directed to bring the Respondent before the Court.
4. Such further orders as the Court considers appropriate.
5. The Respondent pay the Plaintiff’s costs of and incidental to this application.
Statement of charge against the Respondent pursuant to SCR Pt 55 r 7
6. The Respondent, Josephine Aapa Smith, is guilty of contempt of the Court by failing to comply with the order made by Justice Rothman on 4 September 2014, that she is restrained from disposing of, dealing with encumbering or diminishing the value of the property located at Wharf 8, level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont – Title reference 14/SP80052 in that she did on or about 2 February 2015 deal with the property by encumbering it in favour of Westpac Banking Corporation by means of a mortgage executed by her on or about 2 February 2015.”
As can be seen from the foregoing, the Summons seeks that the Contemnor be found guilty of contempt of the Court in that she failed to comply with the orders of 4 September 2014 restraining her from “disposing of, dealing with, encumbering or diminishing the value of the Property”. The charge is that contained in paragraph 6 of the foregoing recited terms of the Summons.
There are a number of aspects to the charge. In no particular order they are:
(i)that the Contemnor did, on or about 2 February 2015, deal with the Property;
(ii)that the Contemnor encumbered the Property in favour of Westpac Banking Corporation by means of a Mortgage executed by her on or about 2 February 2015;
(iii)that the aforesaid Mortgage encumbered the Property and dealt with the Property and/or diminished the value of the Property;
(iv)that the Contemnor was restrained by order of the Court from dealing with the Property by encumbering it in favour of Westpac;
(v)that the aforesaid mortgage by the Contemnor was a “contempt of the Court by failing to comply with the order made by Justice Rothman on 4 September 2014”.
Further, in order to prove the contempt, the applicant must prove that the Contemnor was aware of the orders and understood them sufficiently to realise that there was a restraint of the kind alleged.
Each element, including the Contemnor’s state of mind, must be proved beyond reasonable doubt. Some of the foregoing aspects overlap and will be dealt with together.
The Mortgage
The mortgage effected on the Property at Wharf 8, Level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont (Title Reference: 14/SP80052) was executed on 2 February 2015. The mortgage documents are before the Court.
The mortgage is a mortgage signed over the signature of the mortgagor, being the Contemnor. It appears to be the same signature as that appearing in Affidavits of the Contemnor filed in proceedings. The signature is witnessed in circumstances where the witness is required to have known the person executing the document for more than 12 months or have proof of identity.
Moreover, the mortgage was the subject of proceedings and orders of this Court in which, at least inferentially, the Contemnor consented to the validity of the mortgage at least in relation to her interests. The mortgage also resulted in the provision of monies by the mortgagee to the Contemnor or in her interests.
The extent of the circumstantial evidence available that it was the Contemnor, who executed the mortgage, is overwhelming. Each of those facts or matters, like strands in the cable, are, together with the signature and witnessing of the signature, sufficient to prove, beyond reasonable doubt, that the Contemnor has signed and executed the mortgage.
The mortgage encumbers the Property and the Contemnor’s interest in the Property (or purported interest in the Property) as well as, until orders of the Court were made rectifying it, Mr Young’s interests in the Property. Whoever’s interest was encumbered, the Contemnor, being the respondent in proceedings 2008/286909 was “restrained from … dealing with, encumbering, or diminishing the value of [The Property] pending further order of the Court”.
The mortgage was executed on 2 February 2015. For the same reasons already given for the finding that the Contemnor was the person who executed the mortgage, I find that that date was the date on which the Property was so affected.
Was the Contemnor Aware of the Orders?
The Orders made by the Court on 29 August 2014 were made ex parte. There was no representation before the Court on behalf of the Contemnor. As earlier stated, when orders were made by the Court on 4 September 2014, the Contemnor was represented before the Court. There is no evidence as to whether the Contemnor was present at the proceedings on 4 September 2014.
As a consequence of the foregoing, it cannot be said that on 29 August 2014 the Contemnor was aware of the orders made by Bellew J. In order to be grounds for the finding of contempt, the knowledge of those orders would have to be proved beyond reasonable doubt.
Nevertheless, on 4 September 2014, the Contemnor, through her legal representatives, moved the Court for orders vacating the orders of Bellew J in relation to the dealings with the Property and, in lieu thereof, an order to substitute an undertaking to the Court not to deal with the said Property.
There are two possibilities. First, it is possible that the legal representatives were in breach of their duty to the Court and made the application without instructions. Secondly, it is possible that the legal representatives obtained instructions and made the application as a consequence of those instructions.
In Mead v Mead,[9] the High Court[10] made clear that it was not error for a judge, in dealing with a contempt of court, to draw an inference from the conduct of a contemnor that “informed instructions” must have been given. In those proceedings, orders had been made by a Judicial Registrar and continued by a judge of the Family Court of Australia. Those orders were the subject of further applications from which the judicial officer dealing with the contempt drew the inference that the contemnor in those proceedings was aware of the orders and had given informed instructions as to those subsequent applications.
[9] [2007] HCA 25; (2007) 81 ALJR 1185.
[10] Gleeson CJ at [12] – [13] (Hayne, Callinan, Heydon and Crennan JJ agreeing).
The High Court said:
“[11] If, as Cohen J and May J concluded, the facts and circumstances of the case supported, indeed compelled, an inference that the respondent knew of, and understood the meaning of, the order made by Rose J, then the consideration that neither she nor her solicitor could have been obliged to reveal communications that passed between the two of them did not stand in the way of acting on the basis of such an inference.
[12] The circumstances that were regarded by Cohen J and May J as relevant included the following. The order made by Rose J was made on the application of the respondent through her solicitor. The nature of the order was not difficult to comprehend. The evidence indicated that the parties to the proceedings in the Family Court had extensive property interests. The order of Rose J was a general freezing order that prevented both parties from alienating any of their property interests until further order of the Court. Following the making of Rose J’s order, there were further proceedings between the parties relating to variations of those orders and, as was earlier mentioned, there was an occasion on which the respondent inspected the court file.”[11]
[11] Ibid at [11] and [12].
Likewise, here, the application made by the Contemnor through her legal representatives was an application made in circumstances where the nature of the order was not difficult to comprehend; where an undertaking was proffered to replace the order in question; the Contemnor has extensive property interests; the order was a general freezing order that prevented the Contemnor from alienating the Property until further order of the Court; and these were further proceedings between the parties seeking a variation to those orders. Just as the Family Court,[12] at first instance, held, it is inconceivable, in the absence of any suggestion to that effect, that the application made by the Contemnor to the Court was made without the Contemnor’s informed instructions to make them, the Contemnor must have been aware of the effect of the orders of the Court, issued on 29 August 2014, in order to provide the instructions for those orders to be replaced by an undertaking of that kind.
[12] Ibid.
As to the orders issued on 4 September 2014, on 28 October 2014 the Contemnor’s legal representatives sent the Contemnor and others, at least one of whom was not the Contemnor or part of the Contemnor’s legal team, an email[13] attaching the reasons for judgment for the orders of 4 September 2014, including the Cover Sheet, which is in the form of the orders recited above.[14] Its terms recite that order 4 of the orders of Bellew J on 29 August 2014 are vacated and that, otherwise, the orders of Bellew J remain in force.
[13] Exhibit B.
[14] At [40], infra.
Again, those orders are not difficult to understand. It is inconceivable in the circumstances of these proceedings that the Contemnor was unaware that the Court had refused her application to vacate all of the orders issued by the Court on 29 August 2014 and replace them with an undertaking. It is also inconceivable that the Contemnor was unaware of the orders made on 4 September 2014, or their effect.
As a consequence of the foregoing, there is an irrefragable inference that the Contemnor was aware of the effect, and understood the effect, of the orders of the Court made on 29 August 2014 and 4 September 2014. In drawing that inference, it is no part of the Court’s reasoning process to draw on the inference available arising from the unique circumstances of material available and known only to a defendant in criminal proceedings.[15]
[15] See: Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 and see RPS v R [2000] HCA 3; (2000) 199 CLR 620.
The Court, in this judgment, is not drawing an inference from the Contemnor’s failure to give evidence.[16] Contempt proceedings being proceedings for a criminal penalty ought to leave the drawing of such an inference to the extraordinary circumstances such as those involved in Weissensteiner.
[16] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
However, the drawing of an inference in all proceedings, civil and criminal, is a matter of common sense.[17]
[17] Fabre v Arenales (1992) 27 NSWLR 437.
In Fabre v Arenales,[18] the Court of Appeal said:
“There is in this nothing esoteric or peculiar to legal reasoning. It is, as Windeyer J said, ‘plain commonsense’. A factual inference (if A, B, C exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J, ‘human
experience would be contradicted if’ Z did not exist”.[19]
[18] Ibid.
[19] Ibid, at 445, point F.
The Court of Appeal were there referring to the passage in the High Court judgment in Jones v Dunkel.[20] Much earlier, in Bell v Thompson,[21] Sir Frederick Jordan CJ said:
“In order that a jury may be entitled to find a verdict for a plaintiff, they must have before them sufficient evidence of every fact the burden of proof whereof lies upon the plaintiff. If there is no evidence which is not merely equally consistent with the existence and with the non-existence of a fact essential to the plaintiff’s case, i.e., if the whole of the evidence is neutral …, the plaintiff must fail …. It is not enough that the evidence affords material for conjecturing that the fact may exist, unless it furnishes data from which an inference can reasonably be drawn that it does exist ….
Furthermore, it is not sufficient that there should be merely some evidence of each necessary fact. A mere scintilla of evidence is not sufficient …. The evidence must be sufficiently strong to justify reasonable men in accepting it as establishing the fact …. It may be slight, and yet possess this degree of cogency ….. Where there is evidence both ways – i.e., evidence that the fact does, and also that it does not, exist – in order to justify a new trial on the ground that the verdict is against the weight of evidence, it is necessary not merely that the evidence should, in the opinion of the Court, preponderate in favour of the unsuccessful party, but that it should so strongly preponderate in his favour as to lead to the conclusion that the jury, in finding for the other party, have either wilfully disregarded the evidence or failed to understand and appreciate it ….” [22] [Citations omitted]
[20] [1959] HCA 8; (1959) 101 CLR 298.
[21] (1934) 34 SR (NSW) 431.
[22] Ibid at 436 – 437.
Two years later, Sir Frederick Jordan CJ discussed, in terms prescient of the later judgments in Jones v Dunkel and RPS v R, the issue of the drawing of inferences. The Chief Justice said:
“In a Court of justice, the question whether a particular fact has been proved must be determined by considering evidence and seeing whether the existence of the fact is probable in the light of that evidence. In a civil matter, it is necessary, in order that a fact may be regarded as established, that the evidence should be such that it is more probable that it exists than that it does not. The position is the same whether the evidence is direct or circumstantial: Simpson v. L. M. & S. Rly. Co ([1931)] A.C 351 at p. 359). In a criminal matter, it is necessary, if the fact is to be proved by the prosecution, that the evidence should be such that not only is it more probable than not that the fact exists, but that there is no reasonable probability that it does not: it must be proved that it is so probable that no reasonable doubt exists that it is the fact: Peacock v. The King (13 C.L.R. 619 at pp. 630, 651-2). In an ordinary action at law, it is the civil onus only which a plaintiff has to discharge, notwithstanding that the act sought to be proved is one which would support a criminal prosecution: Doe d. Devine v. Wilson (10 Moore P.C. 502); Brown v McGrath ([1920]) S.A.L.R. 97; 8 A.L.J. 207). It has been clearly and emphatically laid down by the House of Lords that in no case can a fact be regarded as established unless its existence is at least a reasonable inference from some matter proved in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not of conjecture: Jones v. Great Western Railway Co. (47 T.L.R. 39 at pp.41, 45). The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability – a mere scintilla of probability such as would not warrant a finding in a civil action: Hiddle v. National Fire & Marine Insurance Co. of N.Z. (17 N.S.W.L.R. 46 at p. 49) – to such practical certainty as would justify a conviction in a criminal prosecution. ‘In discussing whether there is in any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of a reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue’: Jones Case (47 T.L.R. 39 at p. 45). It is well established that if there is no piece of evidence which, taken at highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established: Cofield v. Waterloo Case Co. Ltd. (34 C.L.R. 363 at pp. 374-377). This situation may arise in two different ways. First, there may be no piece of evidence which suggests that the existence of the fact is more than possible. In such a case, since there is nothing to show whether the existence of the fact is probable or not, it is just as likely that it does not exist as that it does. There is no probability either way; and nothing equals nothing. Wakelin v. L. & S.W. Rly. Co. was a case of this type (12 App. Cas. 41 at p. 49). There may, however, be a case in which the evidence is such that in some aspects it raises a probability that the fact exists, and in other aspects it raises a probability that it does not. If, in such cases, the two countervailing probabilities are in perfect equipoise, the fact cannot be treated as established.”[23]
[23] Carr v Baker (1936) 36 SR (NSW) 301 at 306 – 307.
As his Honour the Chief Justice makes clear in the foregoing passage, inferences of probability may range from a faint probability to such practical certainty as would justify a conviction in a criminal prosecution. In the circumstances of this case, the application by the Contemnor to the Court on 4 September 2014 allows the Court to draw an inference that the orders of Bellew J were known and understood as at 4 September 2014 (or the effect thereof was known and understood) with the degree of certainty that, if this be an element of contempt (which, in my view, it is) would allow the element to be proved beyond reasonable doubt.
Also proved with certainty is the fact that the orders of the Court issued on 4 September 2014 were sent to the Contemnor, in circumstances where the Contemnor had a significant interest in the effect of those orders and their variation. It is possible that the Contemnor did not read the email sent to her. But, in the circumstances of these proceedings and the proceedings in 2014, such a possibility is an unreasonable one.
Moreover, it is equally irrefragable that the Contemnor understood the effect of the orders of the Court that were in place prior to 2 February 2015, the date on which she executed the mortgage that dealt with or encumbered the property. The effect of those findings is that the Contemnor well understood the effect of the Court’s orders and engaged in conduct in defiance of them.
The Significance of the Identity of the Judge Issuing the Orders
As has been stated, subject to statutory exceptions, the common law requires “punctilious compliance” with the requirements of criminal procedure, which “is one of the last areas of the law in which a technical point is still a good point”.[24] Nevertheless, there has been a “loosening of the strictness” that has hitherto applied, even in criminal procedures.[25] In Janceski, the Court was dealing with whether jurisdiction had validly been invoked by the preferring of a valid indictment. A statutory condition for a valid indictment was that it was signed by an authorised person.
[24] R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 (per Spigelman CJ at [90]).
[25] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 (per Kirby J).
One of the areas in which the strictness of criminal procedure has been loosened is the issue of particulars of the offence committed, as against the elements of that offence. The technical point raised by the Contemnor is that the conduct said to be in breach of an order of the Court, if proved, was conduct in breach of the orders issued by Bellew J on 29 August 2014 and not the orders issued on 4 September 2014. Since the charge refers to the orders issued on 4 September 2014, the Contemnor submits that she is not guilty of the contempt alleged.
As earlier stated, the fact, if it be the fact, that the issue is a technical one does not deprive the point of merit, particularly in relation to proceedings for proof of criminal guilt.[26] It is necessary to examine the terms of the charge. It is also necessary to determine the status of an order and its effect, when issued by one judicial officer, as distinct from another.
[26] Janceski, Supra.
The fundamental principle applying to the jurisdiction of a court is that, historically, a court, particularly a superior court of record, exercised its jurisdiction en banc. As the High Court has said:[27]
“The reason for the express provision … that the jurisdiction of each of the courts might be exercised by a single judge is the notion which lies deep in history that a superior court of record comprises all its judges who must act collectively in order to constitute the court. Thus at common law all trials by jury were originally held before the court in banc. When trials at nisi prius before a single judge were introduced, the judge took the verdict but could not enter judgment. He returned the verdict to the court and the court in banc gave judgment accordingly. This was noted by Windeyer J in Kotsis v Kotsis where he said that the meaning of the word ‘court’ has come to us through a long history and observed:
‘According to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice. In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge.’
But the jurisdiction of a superior court of record exercised by a single judge is still the jurisdiction of the court; there are not two courts, one comprising the single judge and one comprising all the judges. Nor does the provision of an appeal from a single judge to a full court alter the situation for an order made on appeal is made in the exercise of a jurisdiction which is different from that of the judge at first instance. For a court to grant prerogative relief against one of its own judges is for it to grant relief against itself in the exercise of the same jurisdiction as that exercised by the judge, a situation which has been described as ‘rather ludicrous’. Thus, it was early recognised in this Court that it could not under s 75(v) of the Constitution grant prerogative relief directed towards itself.” [Footnotes omitted.][28]
[27] Re Jarman; Ex parte Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595 (per Dawson J).
[28] Ibid, at 609 – 610.
While the High Court in Re Jarman divided in its opinion, its different opinions were based, not on the fundamental principle recited above, but on the effect of the statutory provisions with which the High Court was there concerned and which may have, on the minority view, overtaken the common law otherwise applicable.
As a consequence of the foregoing, whether orders were made by Bellew J or by another member of the Court, the orders are orders of the Court. The identity of the judicial officer is irrelevant. A single judge of this Court exercises jurisdiction because of the effect of s 40 of the Supreme Court Act 1970.
As is obvious from the foregoing, the Court of Appeal, for example, is the Supreme Court exercising the jurisdiction conferred. The jurisdiction of the Court of Appeal to hear an appeal from a single judge of the Supreme Court does not render any single judge any less the Court. Nor does it render the Court of Appeal a different Court. The Court of Appeal exercises the jurisdiction of the Supreme Court of New South Wales and is, in the exercise of that jurisdiction, comprised in accordance with the requirements of any statute and regulation, the Supreme Court. It is for that reason that ceremonial occasions, for example the swearing in of a judge, involve the entire Court, sitting en banc, not just the Court of Appeal, the Equity Division or the Common Law Division.[29]
[29] See also Bird v Free [1994] FCA 891; (1994) 126 ALR 475 at 478 – 480.
The foregoing establishes that whenever a judicial officer (or more than one of them) exercises the jurisdiction of the Court, whether under the provisions of s 40 of the Supreme Court Act or otherwise, it is the Court that speaks; not the judicial officer. The judicial officer is the Court. Thus, whether orders are issued by Bellew J or by another judicial officer, the orders are the orders of the Court and the identity of the judicial officer is irrelevant.
Nevertheless, orders of the Court issued on 29 August 2014 and orders of the Court issued on 4 September 2014. The charge is recited above. The Summons charges that the Contemnor is “guilty of contempt of the Court by failing to comply with the order made by Justice Rothman on 4 September 2014” (see above).
Plainly, on the findings already made, the Contemnor did, on or about 2 February 2015, deal with the Property by encumbering it by means of a mortgage executed by her on or about 2 February 2015. What then is the effect of specifying that such conduct is a failure to comply “with the order made by Justice Rothman on 4 September 2014”?
The Requirements of a Charge
It is necessary to deal with that which is required in laying a charge. The High Court,[30] in dealing with “an information” said:
“[14] The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: ‘an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence’ (Ex parte Lovell; Re Buckley [1938] NSWStRp 12; (1938) 38 SR (NSW) 153, at p 166). The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection (see, in particular, Jervis' Act 1848 11 & 12 Vict. c.43, ss.1 and 3 and the Summary Jurisdiction Act 1879 42 & 43 Vict. c.49, s.39) was substantially adopted in New South Wales (see the discussion in Ex parte Lovell; Re Buckley, at pp 167-174 and, in particular, Justices Act 1902 (N.S.W.), ss.65 and 145A). One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence (see, e.g., Smith v. Moody (1903) 1 KB 56, at p 60; Johnson v. Miller [1937] HCA 77; (1937) 59 CLR 467, at pp 486-487, 501; Ex parte Graham; Re Dowling (1968) 88 WN (NSW) 270, at p 280). It is, however, unnecessary to pursue that particular question here since, putting to one side s.6 of the Summary Jurisdiction Act to which detailed reference is subsequently made, it is not suggested that Yeldham J. was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.”[31]
[30] John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508.
[31] Ibid, per Mason CJ, Deane and Dawson JJ at 519.
The High Court[32] reaffirmed that there was no technical verbal formula which could be applied to determine whether an information (or in this case a charge) sufficiently identified the essential ingredients of the alleged offence. The purpose of the essential ingredients is to identify the time, place and manner of the Contemnor’s acts or omissions that gave rise to the contempt and the orders of the Court (and their effect) of which the Contemnor is said to be in contempt.
[32] Ibid.
In the charge that is presently before the Court, the Contemnor knows, from the terms of that charge, the effect of the orders of the Court and the conduct in which she is alleged to have engaged in order to render her in contempt. The difficulty is that the particulars provided by the applicant specify that the orders are those of the Court on 4 September 2014.
In my view, the specification of the orders having been issued on 4 September 2014 by a particular judicial officer is not an essential ingredient of the alleged offence. The conduct that is alleged specifies, with particularity: the date on which the conduct occurred (2 February 2015); that the conduct involved encumbering the Property and the details of that encumbrance as a dealing with the Property; that the Contemnor was restrained by order of the Court from dealing with or encumbering the Property; and that the said conduct, in breach of the orders of the Court, was a contempt. On the findings already made, as already stated, there was contempt.
The fundamental question raised by the “technical point” is whether the identity of the judicial officer and the date on which the orders were made is an “essential ingredient” of the charge so as to otherwise counteract the provision and specification of the time, place and manner of the Contemnor’s acts or omissions. Or, alternatively, does it provide “fair information and reasonable particularity as to the nature of the offence charged”?[33]
[33] De Romanis v Sibraa [1977] 2 NSWLR 264 at 292 (per Mahoney JA, cited with approval in John L Pty Ltd v Attorney-General (NSW), above).
Once the applicant charges the effect of the orders and the precise conduct which is said to be in breach of, or does not comply with, orders of the Court, the identity of the judicial officer and the date upon which the order of the Court issued does not affect the validity of the charge and is a particular that the applicant does not need to prove. The applicant needs to prove, beyond reasonable doubt, that orders of the Court operated; the conduct that is said to be in breach of an order of the Court; that the Contemnor was aware of the effect of Court orders enjoining her from certain conduct; and that the conduct specified was a breach of the orders of the Court, as the Contemnor understood them at the time that the conduct occurred. All of the foregoing is required to be proved beyond reasonable doubt.
Thus, assuming, without accepting, for the purpose of this discussion that the “technical point” is correct, namely, that the orders specified and particularised in the charge are the wrong orders, the contempt alleged has been proved, beyond reasonable doubt. It is a contempt committed by the Contemnor dealing with the land by encumbering it, as alleged, on 2 February 2015, in circumstances where the Contemnor was aware that the Court had ordered that she not deal with or encumber the Property.
Whose Orders have been breached?
I have not as yet dealt with whether the “technical point” is correct, as distinct from such as to prevent a finding of guilt. The circumstances of the issuing of the orders has already been recited. The circumstances of the issuing of these orders is similar to, if not identical to, the circumstances that pertained in Mead v Mead. As earlier stated, the facts in Mead v Mead were that a Judicial Registrar, on 30 August 1999, issued orders. The facts recited by Gleeson CJ in the reasons for judgment need reiterating. The Chief Justice said:[34]
[34] Mead v Mead [2007] HCA 25; (2007) 81 ALJR 1185 at [2] and [3].
“[2] The proceedings for contempt arose out of orders made by Judicial Registrar Johnston on 30 August 1999, by Rose J on 7 September 1999 and by Cohen J on 2 November 2001. For present purposes the operative order was that of Rose J who, on 7 September 1999, ordered:
‘That upon the wife giving the usual undertaking in relation to damages, I continue the orders made 30 August 1999 until further order.’
The person referred to in that order as ‘the wife’ was the present respondent. The orders made on 30 August 1999 were made by Judicial Registrar Johnston on the application of the present respondent and they included the following order:
‘That pending further order of the Court, the Husband and the Wife be and are hereby restrained from selling, transferring, encumbering, alienating or otherwise dealing with any real property in which they currently have an interest.’
There were two acts of the respondent that were said to have been in contravention of the order of Rose J. The first was that on or about 20 December 2001 she signed as mortgagor a mortgage over a property in which she had an interest, being a property known as the Quoin Island Resort in Queensland. The second was that on or about 14 February 2003 she signed as transferor a transfer of property in which she had an interest, being certain property at Katoomba in New South Wales.
[3] The husband made an application to have the respondent dealt with for contempt of court pursuant to s 112AP of the Family Law Act 1975 (Cth). In accordance with the usual procedure, the issue of alleged contempt was dealt with separately from the issue of penalty. At a hearing before Cohen J in late 2004, the husband, the present appellant, adduced evidence to demonstrate that the wife, the present respondent, was in contempt of court, the alleged contempt being contravention of the order made by Rose J, on 7 September 1999.” [Emphasis added.]
The Contemnor disavows any reliance upon the difference in wording between the orders entered and the orders recited with the reasons for decision. The orders recited with the reasons for decision provide in Order (2) that ‘otherwise the orders of Bellew J remain in force’. That was a judgment issued on 4 September 2014 by the Court, constituted by Rothman J, and announced at that time.
There can be no difference in meaning or effect between an order that the orders of Bellew J “remain in force” and an order that the orders made “continue” or that “I continue the orders”. As a consequence, in accordance with the analysis of the High Court in Mead v Mead, the effective orders are those issued on 4 September 2014 and not the earlier orders of Bellew J.[35] Indeed, Gleeson CJ recites that
“[f]or present purposes the operative order was that of Rose J who, on 7 September 1999, ordered:
‘That upon the wife giving the usual undertaking in relation to damages, I continue the orders made 30 August 1999 until further order.’”
[35] Ibid, and at [3], [12].
The Chief Justice, with whom the other members of the Court agreed, makes clear that an order continuing the orders earlier made is the operative order for the purposes of any contempt proceedings. Likewise, in my view, the operative order is the order that the orders of Bellew J remain in force. It is that order of which the Contemnor is in contempt.
Conclusion
If the latter analysis be incorrect, the identity of the judicial officer and the date upon which the order was made is a particular that does not affect the guilt of the Contemnor for the contempt charged, namely, the stated dealing with the Property, in the manner particularised and on the date particularised, in breach of the orders of the Court restraining such conduct.
For the foregoing reasons, the Contemnor is guilty of contempt of the orders of the Court as charged in that on 2 February 2015 the Contemnor breached or otherwise failed to comply with an order of the Court restraining her from dealing with or encumbering the said Property.
As agreed, the issue of punishment will be dealt with separately from the issue of guilt and after the parties have been given a reasonable opportunity to prepare and to present any material in relation thereto.
The Court issues the following judgment:
(1)The defendant, Josephine Aapa Smith, is guilty of Contempt of Court in that on 2 February 2015 the defendant dealt with property located at Wharf 8, level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont – Title reference 14/SP80052, by encumbering it by means of a mortgage in favour of Westpac Banking Corporation in circumstances where the Court had, to her knowledge, restrained such conduct in relation to that property.
(2)These proceedings shall be adjourned to hear evidence and/or submissions on penalty on a date to be fixed after discussion with counsel.
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Amendments
23 October 2017 - Case Title amended to clarify identifying number before the NSWSC and to streamline sequential numbering.
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