New South Wales Supreme Court CITATION : Trevenar v Ussfeller & Ors [2006] NSWSC 807 HEARING DATE(S) : 26/07/06 JUDGMENT DATE : 26 July 2006 JURISDICTION : Equity Division JUDGMENT OF : White J EX TEMPORE JUDGMENT DATE : 07/26/2006 DECISION : Counsel to bring in short minutes of order. CATCHWORDS : PRACTICE & PROCEDURE – Plaintiff made application to punish first and third defendants for alleged contempt of earlier orders of Court – Evidence that defendants not served with sealed copy of earlier orders – Plaintiff indicated that if Court would not allow contempt application to proceed without service of sealed copy of orders, plaintiff would instead seek orders in same terms as earlier orders – Plaintiff in substance asking Court to express view in advance of hearing of contempt application – Whether Court should express provisional view – Expression of provisional view could create reasonable apprehension of pre-judgment or bias – Plaintiff entitled to proceed with contempt application without expression of provisional view – Orders made requiring first and third defendants' attendance to answer charge of contempt. LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW) Civil Procedure Act 2005 (NSW) CASES CITED : Attorney General for NSW v Heydon (1994) NSWLR 638 Registrar Court of Appeal v Ritter (1985) 34 NSWLR 641 Melba Josephine Trevenar PARTIES : v Margaret Mary Ussfeller & Ors FILE NUMBER(S) : SC 2842/04 COUNSEL : Plaintiff: S Docker Defendant: N/A SOLICITORS : Plaintiff: Kemp Strang Defendant: Acclaim Legal IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST WHITE J Wednesday, 26 July 2006 2842/04 Melba Josephine Trevenar by her tutor Peter Carusi v Margaret Ussfeller & 2 Ors JUDGMENT 1 HIS HONOUR: This application raises questions of procedure on an application to punish the first and third defendants for alleged contempt. 2 The plaintiff alleges that the first, second and third defendants are in contempt of orders made by Barrett J on 28 April 2006. Those orders gave further effect to orders made by Gzell J on 22 July 2005. They included an order that the defendants deliver vacant possession of a property at 9 Martinview Road, Singleton Heights. 3 There is evidence that the notice of motion, statements of charge and supporting affidavits have been personally served on the defendants. Personal service on the second defendant was not effected within three clear days of the return date of the notice of motion, and the plaintiff does not seek to proceed against him. 4 There was no appearance by any of the defendants on the return of the notices of motion yesterday. The plaintiff's counsel, in the course of his careful submissions, drew the court's attention to r 40.7(1), (4) and (5) of the Uniform Civil Procedure Rules 2005 (NSW) which provide as follows: "r 40.7 Service of copy of judgment before committal or sequestration (cf SCR Part 42, rule 8) 40.7 (1) A judgment is not enforceable by committal or sequestration unless: (a) a sealed copy of the judgment is served personally on the person bound by the judgment, and (b) if the judgment requires the person to do an act within a specified time, the sealed copy is so served within that time or, if that time is extended or abridged, within that time as extended or abridged. … (4) If a person liable to committal or sequestration by way of enforcement of a judgment has notice of the judgment: (a) by being present when the judgment is directed to be entered, or (b) by being notified of the terms of the judgment, whether by telephone, telegram or otherwise, the judgment may be enforced against that person by committal or sequestration without service having been effected in accordance with this rule. (5) The court may dispense with service under this rule. " 5 It appears that the defendants were not served with a sealed copy of the orders made by Barrett J on 20 April 2006. There is evidence that they were served with an unsealed copy of the orders which bore the required notice that the person served is liable to imprisonment or sequestration of property if he or she does not do the act required within the specified time. There is also evidence of service of a solicitor's letter explaining the orders made and the consequences of non-compliance. 6 The plaintiff has made submissions as to whether the orders are enforceable pursuant to r 40.7(4), or whether service of a sealed copy of the orders should be dispensed with pursuant to r 40.7(5). The plaintiff submits that: " if the court is disposed to allow the plaintiff to proceed with its Notice of Motion, the plaintiff in the event that the First and Third defendants did not appear the Plaintiff seeks an order that a warrant issue for their arrest to be brought before the Court to face the charge. ... On the other hand, if the Court will not allow the Plaintiff to proceed at this stage without serving a sealed copy of the judgment, the Plaintiff will seek orders in the same terms as those made by Barrett J, except that they will provide for compliance by 25 August 2006 and will seek to have the Notice of Motion stood over 25 August 2006 ". 7 In substance, the plaintiff is asking the court to express a view in advance of the hearing of the application as to whether the orders can or should be enforced by contempt proceedings, notwithstanding the non-compliance with r 40.7(1). 8 Notwithstanding the ability with which that request is advanced, I do not think that the court should act on it. Any view expressed would necessarily be provisional as the defendants have not been heard. But there is a risk that the expression of a provisional view could create a reasonable apprehension in a hypothetical observer that the judge had prejudged the issue. It is arguable that there may also be reasonable grounds for such an observer to apprehend that the judge might not bring an impartial mind to the argument at a contested hearing, should his or her provisional view be that the plaintiff should proceed. Such an observer might consider that the judge would be conscious that the plaintiff had incurred expense in reliance upon the provisional view expressed, and be reluctant to lay himself or herself open to the accusation that he or she caused such expense to be wasted. 9 There is no question of the plaintiff either being allowed or not allowed to proceed with her application. She is entitled to proceed with her application if she wishes. But she is not entitled to advice as to how she is likely to fare on a contested hearing of the application. Particularly is that so given the nature of the application and the serious consequences for the alleged contemnors if the contempt is proved. 10 I treat the plaintiff's application as also being one for an order under r 40.7(5) of the Uniform Civil Procedure Rules, that service of a sealed copy of the order be dispensed with. That application appears to raise the same issues as arise under r 40.7(4), with perhaps the additional question of the desirability of making such an order with retrospective effect. The notices of motion do not claim such relief. The defendants have not had notice that such a claim would be made. I do not consider that such relief should be granted ex parte. I do not know what the defendants might say in answer to it. I will grant leave for the notices of motion to be amended to claim relief under r 40.7(5). 11 I propose to stand the matter in the list for counsel to obtain his client's instructions as to whether she wishes to proceed with the notices of motion. If she does, I will not make an order for the issue of warrants for the arrest of the first and third defendants, but I will make orders requiring their attendance to answer the charges. Although the court has power to proceed in the defendants' absence, it is desirable, having regard to the nature of the charge and the consequences of a contempt being proved, that the defendants be personally present to answer the charge (Attorney-General for NSW v Haydon (1994) 34 NSWLR 638 at 639-640). 12 The power to issue a warrant for the arrest of the alleged contemnors, if it exists, is to be found either in the Supreme Court Rules 1970 (NSW) Pt 55 r 10, or in s 97 of the Civil Procedure Act 2005 (NSW). Part 55 r 10(1) of the Supreme Court Rules confers such power, in proceedings such as at present, if it appears to the court that the contemnor is likely to abscond, or otherwise withdraw himself or herself from the jurisdiction of the court. There is no evidence of such a likelihood. The defendants have been personally served at the property with a number of documents. 13 Subsection 97(1) of the Civil Procedure Act provides: " 97 Arrest warrants (cf SCR Part 42, rule 7) (1) Subject to rules of court: (a) if, by subpoena or otherwise, the court makes an order, whether under this Act or any other law: (i) for a person to attend court for any purpose, or (ii) for a person to produce any document or thing to the court, and (b) the person fails to comply with the order, the court may issue, or make an order for the issue of, a warrant for the person's arrest. " 14 The power to make an order for the issue of a warrant for a person's arrest under this subsection depends upon the court, by subpoena or otherwise, having first made an order for the person's attendance. The power to make an order requiring a person's attendance to answer a charge of contempt is well established (see Attorney-General v Haydon; Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641). The power is to be found either in r 36.1 of the Uniform Civil Procedure Rules (Ritter per McHugh JA at 652-653), or it is an inherent power recognised by r 42.27 of the Uniform Civil Procedure Rules (Ritter per Priestley JA at 651, per McHugh JA at 653). 15 If the plaintiff chooses to proceed with the notices of motion, counsel should bring in short minutes of order requiring the first and third defendants' attendance before the court on a date to be specified, and thereafter as required, to answer the charge of contempt of court set out in the notices of motion and statement of charge. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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