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. The particular purpose of the proceedings before the Court today is to consider whether a warrant for arrest should be issued against Mrs Harrison. The matter was before the Court twice earlier in the day. The Court has dealt with the matter with some particularity and care because of the seriousness which must be attached to any order which will, or may, have the effect of depriving Mrs Harrison of her liberty. Cf Marriner v Smorgon (1989) 63 ALJR 518 (HC). To secure the issue of the warrant the plaintiff relies upon the provisions of Pt55 r10 of the Supreme Court Rules. That rule provides: 2 UNREPORTED JUDGMENTS 10. Where - (a) notice of a motion for punishment of a contempt has been filed or proceedings have been commenced for punishment of a contempt; and (b) it appears to the Court that the contemnor is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court" The Court may issue a warrant for the arrest of the contemnor and his detention in custody until he is brought before the Court to answer the charge, unless he, in the meantime, gives security in such manner and in such sum as the Court directs, for his appearance in person to answer the charge and to submit to the judgment or order of the Court. It is plain from materials before the Court that process is now before us by which punishment of contempt is sought against Mrs Harrison. Proceedings have been commenced for that purpose and she has been named as a party. So far as the second requirement in par (b) of the rule is concerned, it does seem to me from the material placed before the Court (including the material placed before it today in the affidavit of Mr Hill) that unless steps are taken to bring Mrs Harrison into custody she is likely to abscond or otherwise withdraw herself from the jurisdiction. So much she said she would do in the letter to Mr Landers which originally initiated these proceedings. Accordingly, the order which I would propose is that a warrant for the arrest of Mrs Harrison be issued in the form of the document which has been handed to the Court, and which I initial. If the Court makes that order, the warrant will be signed by one of the Judges of Appeal. The document which has been tendered omits the monetary sum the payment of which will be taken to the security for her appearance before the Court. I would propose that such sum be $50,000. Mahoney JA I agree. Meagher JA I agree. The orders of the Court are accordingly that a warrant for arrest be issued to the Sheriff requiring him to arrest Vivienne Roslyn Harrison, in the terms of the warrant, to bring her before the Court to be dealt with according to law. MEAGHER JA: The amended summons will have to be served. Do you seek any additional order? MR EVATT: We seek an order for substituted service. KIRBY P: Is there any utility in that? If the Sheriff can serve the warrant and bring Mrs Harrison before the Court, that will be the achievement of the objective of the Court. If the Sheriff cannot serve the warrant there will not be much utility in an order for substituted service. MR EVATT: That is certainly sound logic. MR WHEELHOUSE: Would it be appropriate to direct the sheriff to enlist the aid of the New South Wales Police to assist? It would seem that, if the New South Wales Police assistance were formally sought, that would assist the Sheriff. KIRBY P: Is that your understanding? If it involves seeking the assistance of the New South Wales Police or the Australian Federal Police that would be within the Court's intent. However, I would not be inclined to make an order because I do not believe the Court should endeavour to control the way in which the Sheriff performs his powers. MR WHEELHOUSE: It merely arises from a suggestion of Mr McPhee QC made. I appreciate that the Victorian situation may be different to here. URJ PATTON v HARRISON [No 1] (Meagher JA) 3 MEAGHER JA: There is nothing to stop either party from making whatever suggestions they wish to make to the Sheriff. KIRBY P: Certainly the parties may take the warrant to the Sheriff with the suggestion which I have made (that the Sheriff use every proper effort with all police authorities and other forces concerned, to bring Mrs Harrison before the Court). So much may be signified to the Sheriff. The Court makes no particular order in that regard. Mr Evatt, I have now signed the document. It may be taken to the Registrar to be sealed by the seal of the Court. It may be then given to the Sheriff for extension. The costs of these proceedings today are reserved.