PATTON v HARRISON [No 1] [1989] NSWCA 163

PATTON v HARRISON [No 1] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, MAHONEY and MEAGHER JJA 12 October 1989

[1989] NSWCA 163

CONTEMPT — refusal by witness to attend Supreme Court pursuant to subpoena served on her — evidence that witness may be evading service of process — summons issued, alleging contempt of court by witness and seeking the issue of a warrant for her arrest — held: (1) Because the warrant may have the effect, if executed, of depriving the alleged contemnor of her liberty, the Court should approach the application with particularity. Marriner vy Smorgon (1989) 63 ALJR 518 (HC) referred to; (2) The requirements of Pt55 r10 SCR were established — process had issued seeking punishment of the alleged contemnor for contempt and the material before the Court justified a conclusion that, unless restrained, she was otherwise likely to abscond or withdraw herself from the jurisdiction; (3) Accordingly, the warrant should issue directed to the Sheriff to arrest Mrs Harrison and bring her before the Court. Supreme Court Rules, Pt55 R10.

Kirby P For the third time there is before the Court a suggestion that Mrs Vivienne Roslyn Harrison nee Hobbs is in contempt of court. However, for the first time the Court now has before it a summons in amended form which charges her with contempt and seeks her punishment in respect of that contempt.

The background facts are stated in earlier proceedings in Patton v Australian Consolidated Press [No 1] and [No 2]. it is unnecessary for present purposes to repeat those facts.

The Court has had placed before it today two further affidavits. One is by Mr Donald Landers, solicitor. This sets out certain steps which he has taken to endeavour to inform the defendant to the summons and the alleged contemnor (Mrs Harrison) of the proceedings before the Court, but without avail. The second is an affidavit of Mr Malcolm Hill, commercial agent. As is revealed by that affidavit and reflected in observations of the Court in earlier proceedings, Mr Hill has been endeavouring to serve Mrs Harrison with the Court's process. The Court has noted those affidavits. It also has before it a summons in which Mrs Sandra Patton seeks a declaration that Mrs Harrison has threatened to be in contempt of the Court in that she expressed her refusal to attend the Supreme Court. The summons also seeks a declaration that she is in contempt of court in that she refused to attend the Supreme Court pursuant to a subpoena served on her. The summons also seeks orders that she be restrained from being in contempt; that she be detained in custody pending further orders of the Court; and that she be dealt with by way of fine or imprisonment for her contempt.