Muriti & Anor v Prendergast & Ors [2005] NSWSC 1352

New South Wales Supreme Court

CITATION : Muriti & Anor v Prendergast & Ors [2005] NSWSC 1352

HEARING DATE(S) : 9 December 2005

JUDGMENT DATE : 9 December 2005

JUDGMENT OF : Brereton J

DECISION : Adjournment of contempt application granted without terms; further directions made in aid of specific performance.

CATCHWORDS : PROCEDURE - contempt - adjournment of contempt proceedings - whether appropriate to impose terms - held inappropriate.

Vincent Carl Muriti (P1) Keanlong Pty Ltd (ACN 073 104 266) (P2) John Francis Prendergast (D1) Rolcross Pty Ltd (ACN 003 538 490) (D2) Worthbrook Pty Ltd (ACN 050 538 808) (D3) PARTIES : Laon Pty Ltd (ACN 100 094 433) (XC) Santee Pty Ltd (formerly known as Perfect Auto Body Pty Ltd) (XD1) Perfect Auto Body Canberra Pty Ltd (ACN 100 296 222) (XD2) Vincent Carl Muriti (XD3) Keanlong Pty Ltd (ACN 073 104 266 (XD4)

FILE NUMBER(S) : SC 5094/04

J Stevenson SC & N Bearup (Plaintiffs/Applicants) COUNSEL : TEF Hughes QC & J Needham SC, & H Dhanji (Defendants/Respondents)

Henry Davis York Lawyers (Plaintiffs/Applicants) SOLICITORS : Phillips Fox Lawyers (Defendants/Respondents)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Friday 9 December 2005

5094/04 Vincent Carl Muriti & Anor v John Francis Prendergast & Ors JUDGMENT (ex tempore - revised 21 December 2005) 1 HIS HONOUR: Before me is a Notice of Motion filed on 6 December 2005 by which the plaintiffs Vincent Carl Muriti and Kealong Pty Ltd seek, in substance, orders that the defendants be found guilty of contempt of Court in respect of 19 separate charges of what might conveniently be described as civil contempt, as specified in a statement of charge annexed to the Notice of Motion, of orders for specific performance of a commercial transaction. 2 The motion was filed by leave of the Court granted on 6 December. Time for service was abridged to 5pm on 7 December, and the motion was first returnable before the Court on 8 December when, on application of the defendants, it was adjourned to 12 noon today. Mr T.E.F. Hughes QC, who appears today for the defendants, now applies for a further adjournment, which application is opposed by Mr J Stevenson SC for the plaintiffs. 3 I do not pretend fully to understand the long history of the proceedings which have brought them to this point, but a brief reading of the Notice of Motion and the supporting affidavit shows that it would be practically impossible for the defendants and their legal representatives to be in a position to respond to 19 charges of contempt - involving, as they do, jeopardy to the liberty of the defendants - within the time which has so far been available for that purpose. 4 While I appreciate that a date fixed for settlement of the commercial transaction, which is to take place as a result of the substantive proceedings, has already been fixed and passed, it is not clear to me that such urgency attends the question of whether there has already been a contempt or not as would justify forcing the defendants to defend the matter today. 5 It is then submitted on behalf of the plaintiffs that conditions should be imposed on any adjournment, including the extraction of undertakings to comply with the orders already made (which are in the nature of orders for specific performance) and to comply with the requirements of third parties, which appear to be preconditions to the commercial settlement taking place. 6 To my mind, this would not be at all an appropriate course to adopt in connection with contempt proceedings. While it is true to say of contempt proceedings that the ultimate purpose of a remedy is to secure compliance with the orders of the Court, it is clear nowadays that even proceedings for so-called civil contempt are quasi-criminal in nature, and that once the Court's contempt jurisdiction is invoked, what it is called upon to do is to adjudicate on whether or not there has been a contempt. In that proceeding, the Court is to apply the criminal standard of proof, and it must be zealous not to require the alleged contemnor to incriminate himself, herself or itself. 7 Adjourning the contempt proceedings on terms would be an abuse of these proceedings, at least in a technical sense. It would be using them, not for the purpose of adjudicating whether or not there has been a contempt but, in effect, to suspend a Sword of Damocles over the alleged contemnor to endeavour to secure compliance with the orders pending the determination of the contempt application, regardless of whether or not the alleged contemnor admits or denies that there has been a contempt. To extract some undertaking may also go someway towards requiring an alleged contemnor to incriminate himself, herself or itself in the course of the contempt proceedings.