Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137

FEDERAL COURT OF AUSTRALIA

Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137

CONTEMPT OF COURT – injunction – failure to comply – first order requiring payment of proceeds of sale of named property into designated trust account – first respondent dissipated proceeds of sale otherwise than in accordance with order – whether non-compliance with order within reasonable time – whether wilful disobedience – whether second respondent had any capacity to comply with order – second order requiring same payment by a particular date – respondents without means at that date – whether either respondent in breach of order they were unable to comply with – whether onus of proof of inability to comply on respondents CONTEMPT OF COURT – penalty – range of penalties available – whether community service order can be made – whether power to order term of imprisonment in default of payment of fine – appropriate level of fine – relevance of other orders made – judgment in principal proceeding against party in default – order for costs of contempt proceeding – indemnity costs – appropriate length of default term of imprisonment – reduction for partial payment of fine WORDS AND PHRASES – "an offence against the law of the Commonwealth"

Constitution s 80 Bankruptcy Act 1966 (Cth) ss 120, 121 Federal Court of Australia Act 1976 (Cth) ss 23, 31(1) Judiciary Act 1903 (Cth) s 24 Crimes Act 1914 (Cth) ss 16(1), 20AB(1) Federal Court Rules O 1 r 5A(1)(e), O 1 r 5AC, O 1 r 5AC(5)(b), O 9 r 1(3), O 35A, O 35A r 2(2)(d), O 35A r 3(2)(c), O 35A r 3(2)(d), O 35A r 4, O 36 r 7, O 37 r 2, O 37 r 2(5), O 40 r 6, O 45 r 7, O 62 r 3(2), O 80 High Court Rules r 11.04.1(a) Penalty Interest Rates Act 1983 (Vic) s 2(1) Sentencing Act 1991 (Vic) s 63(1)

Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 (2006) 152 FCR 129 followed Lewis v Pontypridd, Caerphilly, and Newport Railway Company (1895) 11 TLR 203 questioned Re Bramblevale Ltd [1970] 1 CH 128 followed Witham v Holloway (1995) 183 CLR 525 cited Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661 (2004) 142 FCR 296 cited Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 followed Viner v Australian Building Construction Employees' and Builders Labourers' Federation (No 3) (1982) 63 FLR 242 cited Australian Building Construction Employees' and Builders Labourers' Federation v Viner (1982) 63 FLR 253 cited Australian Industrial Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia & Ors [2001] FCA 774 (2001) 188 ALR 653 cited Re Colina; Ex parte Torney [1999] HCA 57 (1999) 200 CLR 386 followed Reches Pty Ltd v Tadiran Limited [2001] FCA 1486 cited Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 distinguished Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 cited Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd (unreported, Federal Court of Australia, Drummond J, 6 November 1998) cited Australian Securities & Investments Commission v Matthews [1999] FCA 803 (1999) 32 ACSR 404 cited Derby & Co Ltd v Weldon (Nos. 3 and 4) [1990] 1 Ch 65 discussed Viner v Australian Building Construction Employees' and Builders Labourers' Federation (No 1) (1981) 56 FLR 5 followed PAUL ANTHONY PATTISON AS TRUSTEE OF THE BANKRUPT ESTATE OF PHILLIP EMMANUEL BELL v RUTH MARINA BELL AND LIVING IT UP PTY LTD (ACN 100 682 433) VID 572 OF 2005