COLLIER v BURN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, MAHONEY and PRIESTLEY JJA 4 July 1994, 4 July 1994 [1994] NSWCA 53 CONTEMPT — failure to show a cause of action — motion to strike out summons — charge by litigant against former barrister of mortgagee — allegation that he read affidavit which was false or in breach of undertakings earlier given to court by client mortgagee — held: (1) There was no evidence that the affidavit read was false or otherwise objectionable; (2) The affidavit did not disclose any contempt; (3) Summons against barrister dismissed. LEGAL PRACTITIONERS — barrister — contempt of court — reading affidavit to court — alleged to be false or in breach of client's earlier undertaking — held: No evidence false or in breach — no contempt — summons against barrister dismissed. ORDERS 1. That the name of Mr John Burn is removed from the summons brought by Mr and Mrs Collier against Mr Paul Sheridan Sengos and Mr Domenico Mosca; 2. That there be struck out of the summons the three charges which have been brought by Mr and Mrs Collier against Mr Burn; and 3. Mr and Mrs Collier are ordered to pay Mr Burn's costs of the summons and of the motion. Kirby P The Court has before it a summons which has been issued by Mr Robert Collier and Mrs Marion Collier (the claimants). The summons names three persons and charges them with contempt of court. The persons named are Mr Paul Sengos, Mr Domenico Mosca, solicitor, and Mr John Burn, barrister. On the return of the summons before the Court today, the claimants were represented only by Mrs Marion Collier. For reasons which were not entirely clear, Mr Collier was not present at the Court today. However, by an affidavit of Mr Justin Kavanagh, commercial agent, it was proved that Mr Collier had been served with a motion to which I will shortly turn. He was, therefore, aware of the proceedings. Mrs Collier acknowledged that this was so. She indicated that she was speaking to the Court with Mr Collier's knowledge and consent. One of the opponents to the summons for contempt, Mr John Burn, Barrister, moved the Court, by the motion, to strike out the summons against him. It was claimed in the motion that the summons failed to disclose any cause of action in contempt of court or was vexatious and embarrassing or involved an abuse of the process of the Court. Mrs Collier proceeded to argue the motion. She supported the summons against Mr Burn. The matter proceeded to evidence and submissions. In support of the motion, counsel for Mr Burn read without opposition an affidavit by Mr Burn. Mr Burn deposed that he is a barrister of this Court. He had practised at the separate Bar in New Zealand for approximately twenty years in total. He has been a barrister of this Court for some five years. He asserts that he is well versed in the duties of counsel and jealous of his reputation both in Australia and New Zealand. 2 UNREPORTED JUDGMENTS Mr Burn gave evidence. I should say that I was impressed with the honesty of his answers and the way in which he responded to the questions put to him by Mrs Collier. The matter in issue between the parties arose out of litigation in the Supreme Court involving a claim for possession by Mr Sengos, as mortgagee, against Mr and Mrs Collier, as mortgagors. Mr Mosca was the solicitor of Mr Sengos. He at first retained Dr C J Birch of counsel to act for Mr Sengos. Subsequently Mr Burn took over the brief from Dr Birch. During the time that Dr Birch was acting for Mr Sengos, the proceedings came before Hodgson J. On 2 June 1993, certain undertakings were given to his Honour by Dr Birch on behalf of Mr Sengos. Relevantly those undertakings included the following as recorded in the short judgment of Hodgson J of 2 June 1993: "\.... [note that the defendant by his counsel undertakes to the court that he will not enter into any contract to sell the property Lerida Avenue, Camden, for the next six weeks. " In essence, the complaint of Mrs Collier against Mr Burn is that, by his conduct of the case after that undertaking was given and with knowledge of it, as Mr Burn agreed, he proceeded in a way which amounted to contempt of court. The charges which were brought against Mr Burn should be set out: "CHARGE NO. 1 IT IS CHARGED: That within the meaning of Pt55, Division 3, R6(1) of the Supreme Court Rules, that the accused, JOHN BURN, Barrister at Law, of 8th Floor, Garfield Barwick Chambers, Martin Place, SYDNEY in the State of New South Wales, did with intent, commit contempt of the Supreme Court of New South Wales, on the 17th June 1993 and 23 July 1993, by tabling an Affidavit into evidence before the Court, in matter numbered, 11534 of 1993, in an Affidavit of PAUL SHERIDAN SENGOS, sworn: 16th June, 1993, whilst being instructed by the Solicitor for Mr Sengos, DOMENICO MOSCA. It is alleged that JOHN BURN was fully aware that the affidavit aforesaid, contained facts, which JOHN BURN, Barrister, knew to be 'not honest and illegal' thereby committing contempt of the Court, by allowing those facts to be introduced into evidence. CHARGE NO. 2 IT IS CHARGED: That within the meaning of Pt55, Division 3, R6(1), of the Supreme Court Rules, that the accused, JOHN BURN, Barrister at Law, of 8th Floor, Garfield Barwick Chambers, Martin Place, SYDNEY in the State of New South Wales, did with intent, commit contempt of the Supreme Court of New South Wales, Sydney, on or around the 14th July 1993 and also on the 23rd July 1993, table an Affidavit of MICHAEL KEVIN KIRKNESS, sworn on 28th June 1993, into evidence before the Court in matter, numbered, 11534 of 1993, knowing that certain facts contained within that affidavit were 'not honest and illegal' These facts relate to a personal undertaking given by Counsel on behalf of PAUL SHERIDAN SENGOS. to His Honour, Mr Justice Hodgson, in the Supreme Court of New South Wales, on 2nd June, 1993, wherein it was noted by His Honour, 'Not to enter into any contract to sell the property for a period of six weeks'. It is alleged that JOHN BURN, Barrister, was aware of that undertaking given by his instructing solicitor's client, PAUL SHERIDAN SENGOS. thereby interfering with the due Administration of Justice and committing contempt of the Supreme Court of New South Wales. URJ COLLIER v BURN (Kirby P) 3 CHARGE NO 3 IT IS CHARGED: That within the meaning of Pt55, Division 3, R6(1), of the Supreme Court Rules, that the accused, JOHN BURN, Barrister at Law, of 8th Floor, Garfield Barwick Chambers, Martin Place, SYDNEY in the State of New South Wales, did commit contempt of the Supreme Court of New South Wales, on or around the period 17th June 1993 through to 26th August 1993, in both the matters numbered, 11534 of 1993 and the appeal matter, 40418 of 1993, in that he was instructed by his solicitor, DOMENICO MOSCA, on behalf of his client, PAUL SHERIDAN SENGOS, and knew full well that the proceedings initiated by PAUL SHERIDAN SENGOS, were a deceit, by Mr Sengos, in order for him to sell up the property at 44 Lerida Avenue, CAMDEN, NSW, under a "POWER OF SALE arrangement' before any "Writ of Possession' was granted to him, enabling Mr Sengos to procure a financial benefit to him, which would also benefit JOHN BURN. as well. This deceit was a direct interference with the due Administration of Justice and thereby is contempt of the Supreme Court of New South Wales. " The Court read a number of annexures to the affidavit of Mrs Collier. One of these was an affidavit of Mr Sengos. That affidavit deposed to certain steps which were taken by Mr Sengos, as incidental to a prospective sale of the subject property at Lerida Avenue, Camden. As I understand the contentions of Mrs Collier against Mr Burn, they are that he took part in a deception of the Supreme Court, a breach of his client's undertaking and an interference in the due administration of justice by reading the affidavit and thereby involving himself, in some way, in the conduct of Mr Sengos which, in turn, was in breach of the undertaking which had been given to Hodgson J. There are a number of answers to these contentions, so far as they affect Mr Burn. However, it will suffice to give two. The first is that it has not been shown that the affidavit of Mr Sengos was false. Indeed Mrs Collier does not suggest that it was false. She asserts that it was true and that it amounts to contempt of court. It cannot be a breach of a barrister's duty to a court and to his client, nor contempt of court, for the barrister, on instructions, to read before the Court an affidavit which is true and otherwise relevant to the proceedings and inoffensive. Secondly, even if the affidavit contains matter which would put Mr Sengos in breach of the undertakings given to the Court by Dr Birch on his behalf, there is absolutely no evidence before the Court which links Mr Burn with a knowing involvement in a breach of those undertakings. Thirdly, the undertaking given to Hodgson J must be noted again for its terms. It is that Mr Sengos would not enter into any contract to sell the property. The affidavit of Mr Sengos of 16 June 1993 certainly shows that he was taking certain steps in anticipation of a future sale of the property. However, subject to any further argument in the case against Mr Sengos, it does not appear to indicate that he, Mr Sengos, was knowingly in breach of the undertaking in the terms in which he gave it. Still less does it show that Mr Burn was in any way in breach of that undertaking in the terms in which it was given. Accordingly, it seems clear that whatever case Mr and Mrs Collier may have against Messrs Sengos and Mosca, they have no case whatever against Mr Burn. So far as appears from the material before the Court, he was doing no more than his duty as a barrister, presenting the affidavit evidence given to him on the client's behalf by his solicitor. It has not been shown that he has acted in any way other than in a proper fashion. 4 UNREPORTED JUDGMENTS That being the case, the charge of contempt against him appears to be entirely ill founded and misconceived. Mr Burn is, therefore, entitled to the relief which he has sought. I would propose that the Court strike out from the summons brought for contempt by Mr and Mrs Collier the name of Mr John Burn upon the basis that the summons and the material placed before the Court disclose no cause of action in contempt against him. I would also propose Mr and Mrs Collier be ordered to pay Mr Burn's costs of the summons and of the motion. Mahoney JA I agree. Priestley JA I also agree. I think also the charges numbers one, two and threedirected against Mr Burn in the summons should be struck out from the summons. Kirby P: The orders of the Court are, accordingly, 1. That the name of Mr John Burn is removed from the summons brought by Mr and Mrs Collier against Mr Paul Sheridan Sengos and Mr Domenico Mosca; 2. That there be struck out of the summons the three charges which have been brought by Mr and Mrs Collier against Mr Burn; and 3. Mr and Mrs Collier are ordered to pay Mr Burn's costs of the summons and of the motion. 1. That the name of Mr John Burn is removed from the summons brought by Mr and Mrs Collier against Mr Paul Sheridan Sengos and Mr Domenico Mosca; 2. That there be struck out of the summons the three charges which have been brought by Mr and Mrs Collier against Mr Burn; and 3. Mr and Mrs Collier are ordered to pay Mr Burn's costs of the summons and of the motion. Counsel for Claimants: Mrs M Collier appeared in person Instructed by: Mrs M Collier appeared in person Counsel for Opponents (Mr P Sengos): GL Turner Instructed by: GL Turner Counsel for (Mr D Mosca): RKK Gowenlock Instructed by: RKK Gowenlock Counsel for (Mr J Burn): RS Toner Instructed by: RS Toner