New South Wales Supreme Court CITATION : Scott v O'Riley [2007] NSWSC 560 HEARING DATE(S) : 14 March, 16 March, 2 April, 28 May, 4 June JUDGMENT DATE : 14 March 2007 JURISDICTION : Equity Division Duty List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 14 March 2007 DECISION : (1) Defendant found guilty of contempt; order for committal stayed for 4 days to enable defendant to comply with order (2) Order for committal stayed until further order upon defendant's undertaking to comply with original order, with liberty to plaintiff to apply to dissolve stay (3) Stay discharged and warrant for committal issued upon breach of undertaking (4) Defendant released from imprisonment upon apology and further undertaking to comply and evidence of alternative accommodation arrangements CATCHWORDS : CONTEMPT – Procedure – Committal – Stay of execution – where undertaking to comply with order offered after defendant found guilty of contempt – Revocation of stay – where undertaking on which stay conditioned breached – Form of Warrant – Release from Committal – where apology and further undertaking to comply proffered (NSW) Civil Procedure Act 2005 s 97 LEGISLATION CITED : (NSW) Supreme Court Rules 1970 Pt 55 (NSW) Uniform Civil Procedure Rules 2005 Pt 40 Attorney-General (NSW) v Haydon (1994) 34 NSWLR 638 CASES CITED : Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641 Nevill & Ashe, Equity Proceedings with Precedents (NSW) PARTIES : Shirley Francis Scott John Joseph O'Riley FILE NUMBER(S) : SC 3953/04 COUNSEL : Mr A M Gruzman (plaintiff) In person (defendant) SOLICITORS : McBride Harle & Martin (plainitff) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST BRERETON J 14, 16 March, 2 April, 28 May, 4 June 2007 3953/04 Shirley Francis Scott v John Joseph O'Riley 14 March 2007 JUDGMENT (ex tempore) 1 HIS HONOUR: Pursuant to leave granted on 12 March 2007 to file a Notice of Motion returnable today, the plaintiff Shirley Francis Scott has instituted proceedings seeking an order for committal of the defendant John Joseph O'Riley under (NSW) Uniform Civil Procedure Rules 2005, r 40.6 and an order that he be punished for contempt under (NSW) Supreme Court Rules 1970, Pt 55. The history of the proceedings to date includes consent orders for the sale and division of proceeds of a property at 119 Queen Victoria Street, Bexley; the granting of a writ of possession in respect of the property against the defendant; the execution of that writ; the subsequent retaking of possession by the defendant; the granting by Gzell J of a permanent injunction restraining the defendant from entering or remaining on the property; and the current motion, which alleges a contravention of that order of Gzell J. 2 The Motion was served personally on the defendant at 2.20pm on 12 March 2007, within the time limited by the order abridging time for service. The matter having been called outside the Court today, the defendant does not appear. For reasons explained in Attorney-General (NSW) v Haydon (1994) 34 NSWLR 638 and Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641, it is highly desirable in proceedings of this type that the respondent to an allegation of contempt be before the Court, rather than the matter proceed in his absence, particularly where there is a real risk that an order involving imprisonment may be made. Those cases also make clear that, in aid of a proceeding such as the present, the Court may order attendance before the Court of a respondent for the purpose of answering the charge of contempt. 3 I order that the defendant, John Joseph O'Riley, attend before the Court, at Court 11D, Law Courts Building, Queens Square, Sydney on Friday 16 March 2007 at 10am and so long thereafter as he may be required until excused for the purpose of answering the motion filed on 12 March 2007. I adjourn the hearing of that motion to 16 March 2007 at 10am. I direct that these orders be entered forthwith. 16 March 2007 4 HIS HONOUR: The defendant Mr O'Riley applies for an adjournment of the hearing of this contempt application. 5 After a very protracted history, the property the subject of these proceedings is listed for sale on 31 March 2007. There is evidence that attempts to sell the property have been interfered with, by the removal of 'For Sale' signs. On the material presently before me, it appears that the defendant remains in occupation of the property. He has declined to give any undertaking to remain away from the property during any adjournment that the Court might grant. He says that he wishes to seek legal advice, but has conducted these proceedings for some time now without legal representation. 6 I am afraid I cannot see that an adjournment for a few days is going to change the situation and, in the meantime, the orders of the Court must be obeyed, or enforced. 7 I am not prepared to grant an adjournment. 16 March 2007 at 3.17pm 8 HIS HONOUR: On 2 March 2007, Gzell J made an order that the defendant John Joseph O'Riley be restrained from entering, re-entering, or remaining on the property at 119 Queen Victoria Street, Bexley in the State of New South Wales. Although the proceedings have a lengthy history culminating in that order, that history is not relevant for the purposes of the application before me, which is made by the plaintiff Shirley Francis Scott, for an order under Uniform Civil Procedure Rules, r 40.6 for committal of Mr O'Riley for disobedience of the order of 2 March 2007. 9 The present application was commenced by Notice of Motion filed on 12 March 2007 and made returnable, with an abridgment of time for service, on 14 March 2007. The motion had subscribed to it a statement of charge setting out the elements relied on by the plaintiff for the allegation of contempt. Ian Martin personally served it on Mr O'Riley on 12 March 2007 at 2.20pm, according to Mr Martin's affidavit sworn 13 March 2007. 10 When the motion came before the Court on 14 March 2007, there was no appearance by Mr O'Riley, but rather than proceeding in his absence that day, I made an order that he attend before the Court today for the purposes of answering the motion, and I adjourned the hearing of the motion to today, 16 March 2007. 11 Today, Mr O'Riley appeared in person before the Court. Mr Gruzman of counsel appeared, as before, for the plaintiff. I have previously given short reasons explaining why I declined Mr O'Riley's application for an adjournment. 12 The evidence against Mr O'Riley was in affidavit form, but Mr Gruzman read the substance of the evidence, other than formal parts, aloud in Court and in the hearing of Mr O'Riley. Mr O'Riley was offered the opportunity to question the witnesses on whose evidence the plaintiff relied, but declined it. At the conclusion of the evidence for the plaintiff/applicant, I asked Mr O'Riley whether he wished to give evidence and whether he wished to call witnesses, and in each case his answer was "Not at present". When he said "Not at present", I made clear that it was a case of "Now or never"; he did not indicate any wish to give evidence or call witnesses. 13 The affidavit of Ian Martin, sworn 7 March 2007, establishes that the order made on 2 March was personally served on Mr O'Riley, on 3 March, at 119 Queen Victoria Street, Bexley and that the order bore the notice to person bound referred to in Uniform Civil Procedure Rules, r 40.7(3). 14 An affidavit of Ian Martin sworn on 9 March 2007 proves that Mr O'Riley was present on the property on that day at 10.30am, contrary to the order made on 2 March. A further affidavit of Mr Martin, sworn 14 March 2007, proves that Mr O'Riley was present on the property on 14 March 2007 at about 3.15pm. 15 I am satisfied beyond reasonable doubt that since 2 March 2007 Mr O'Riley has entered, or re-entered, or remained on the property at 119 Queen Victoria Street, Bexley, in contravention of the order made on 2 March 2007, and of which order he had proper notice. 16 I therefore find the contempt alleged proved. Mr O'Riley appears quite unwilling to comply with the order despite repeated warnings by the plaintiff's solicitors and real estate agent as to the consequences. Grounds for an order for committal under Pt 40.6 have been established. 17 My orders are: (1) Order that the defendant be committed to imprisonment for his disobedience to the order of the Court, and that a warrant issue accordingly. (2) Order that execution of order (1) be stayed until Tuesday 20 March 2007 at 10am. (3) Adjourn the proceedings to 10am on Tuesday, 20 March 2007 before the Duty Judge. (4) Order that the defendant pay the plaintiff's costs of the Motion on the indemnity basis. 2 April 2007 18 HIS HONOUR: On Friday 16 March 2007, I found Mr O'Riley guilty of contempt of court, in that in contravention of the order of the Court made on 2 March 2007 he had since 2 March 2007 entered, re-entered and remained upon the property at 119 Queen Victoria Street, Bexley, in the State of New South Wales. I ordered that he be committed to imprisonment for his disobedience of the order of the Court, and that a warrant issue accordingly. I stayed execution of the order until Tuesday 20 March 2007, to which date the proceedings were adjourned. 19 Mr O'Riley had appeared on 16 March pursuant to an order that he do so, and he then acknowledged before me that he was bound by that order to appear before the Court on the adjourned date, Tuesday 20 March at 10am. However, on 20 March, Mr O'Riley failed to appear, and I ordered that a warrant issue under (NSW) Civil Procedure Act 2005, s 97, for his arrest, to bring him before the Court because of his failure to comply with the order to attend Court on 20 March 2007. From 20 March 2007 until today, he has managed to evade the efforts of the Sheriff to execute the warrant, until he was brought before the Court in custody at 2pm today. 20 Mr O'Riley has now given to the Court an undertaking that he will not approach or enter upon the property at 119 Queen Victoria Street, Bexley. Mr O'Riley must understand that that undertaking has the effect of an order of the Court, and that in view of the contempt which I have already found proven, and his apparent further contempt in failing to appear on 20 March 2007, he can expect no further tolerance should he fail to comply with the undertaking he has now given. 21 My order is: (1) Upon the undertaking of John Joseph O'Riley that he will not approach or enter upon the property at 119 Queen Victoria Street, Bexley, in the State of New South Wales, Order that execution of the order for his committal made on 16 March 2007 be stayed until further order. (2) Grant leave to the plaintiff to apply on 24 hours notice for dissolution of the stay. (3) Order that the defendant pay the plaintiff's costs of today. 22 The transcript will record that Mr O'Riley has given the undertaking to which I have referred. Mr O'Riley, you must understand that if you go back to that property you will be brought back here in custody, and while I cannot foreclose what will happen on the next occasion, I could see no option then but to send you to gaol. Do you understand that? 23 DEFENDANT: Yes. 24 HIS HONOUR: I direct that Mr O'Riley be released from custody. I adjourn the balance of the notice of motion to 28 May 2007 at 10am before me. 28 May 2007 25 HIS HONOUR: On Friday 16 March 2007 I found Mr O'Riley guilty of contempt of Court, in that contravention of the order of Gzell J made on 2 March 2007, he had since that date re-entered and remained upon the property situate at and known as 119 Queen Victoria Street, Bexley, in the State of New South Wales. I ordered that he be committed for imprisonment for his disobedience of the order of the Court and that a warrant issue accordingly. However, I stayed execution of the order until Tuesday 20 March 2007, to which date the proceedings were adjourned. 26 Despite having acknowledged to the Court on 16 March that he was bound to appear on Tuesday 20 March, Mr O'Riley did not do so, and I ordered that a warrant issue for his arrest to bring him before the Court, in aid of the order that he attend Court on 20 March 2007. He evaded the Sheriff's efforts to execute that warrant until 2 April 2007, when he was brought before the Court in custody. He thereupon gave the Court an undertaking that he would not approach or enter upon the Bexley property. Upon that undertaking, I ordered that execution of the order for his committal made on 16 March 2007 be stayed until further order, granting leave to the plaintiff to apply on 24 hours notice for dissolution of the stay. 27 The transcript records the following exchange between the Court and Mr O'Riley: HIS HONOUR: Mr O'Riley, you must understand that if you go back to that property you will be brought back here in custody, and while I cannot forecast what will happen on the next occasion, I can see no option then but to send you to gaol. Do you understand that? DEFENDANT: Yes. 28 I thereupon directed that Mr O'Riley be released from custody. 29 The proceedings were stood over to today. Mr O'Riley was present when the matter was adjourned to today, and has been given notice by letter from the plaintiff's solicitors of the hearing today, but does not appear. 30 The plaintiff now moves for dissolution of the stay of the order for committal. 31 The affidavits of Ian Martin, a real estate agent engaged by the plaintiff to sell the property, sworn on 24 and 25 May 2007, establish that Mr O'Riley has, despite his undertaking to the Court, returned to the property and appears to be in occupation of it. He was there when Mr Martin attended on 10 April 2007 (presumably that is meant to be 10 May 2007), on 11 May 2007, on 22 May 2007, and again on 25 May 2007. 32 The property has been sold, and settlement is anticipated on or about 19 June 2007. 33 In the circumstances, where every opportunity to avoid imprisonment has been afforded to Mr O'Riley, I do not consider that the Court has any alternative but to dissolve the stay of the execution of the orders for his committal, and to issue a warrant for his committal. So far as I can ascertain, the Rules no longer contain a form of warrant for committal appropriate to these circumstances, and I shall adapt that from Nevill & Ashe, Equity Proceedings with Precedents (NSW), for the purpose. That form provides in effect for committal sine die, which in the present circumstances is an appropriate course, especially as despite the established breaches the order is still capable of future performance. There is considerable utility in this course given that the sale of the property will probably be completed on 19 June. 34 My orders are: (1) Discharge with immediate effect the stay of execution of the order for committal made on 16 March 2007, which stay was granted on 2 May 2007. (2) Order that a warrant issue for the committal of Mr O'Riley to prison in the form of the draft warrant initialled by me, dated this day and placed with the papers. (3) Order that the defendant pay the plaintiff's costs of today on an indemnity basis. (4) Reserve liberty to the defendant to apply on such notice to the Court as may seem appropriate to purge his contempt or otherwise to vary this order. (5) Direct that these orders be entered forthwith. WARRANT FOR COMMITTAL TO THE SHERIFF OF NEW SOUTH WALES: TAKE JOHN JOSEPH O'RILEY to the Metropolitan Reception Centre and deliver him to the Superintendent of that prison. TO THE SUPERINTENDENT OF THE METROPOLITAN REMAND CENTRE RECEIVE JOHN JOSEPH O'RILEY into custody and keep him there until the further order of the Court, but producing him before the Court: (a) on Monday 4 June 2007 at 09:45 am, (b) from time to time thereafter as the court may direct. His committal is for contempt of court in that, in contravention of the Order of the Court made on 2 March 2007, he has since 2 March 2007 entered, re-entered and remained upon the property at 119 Queen Victoria Street, Bexley, in the State of New South Wales. 4 June 2007 35 HIS HONOUR: On Monday 28 May 2007 I revoked the stay previously granted of the order for committal of Mr O'Riley made on 16 March 2007, which stay I had granted on 2 May 2007 upon his undertaking to remain away from the property at 119 Queen Victoria Street, Bexley. I ordered that a warrant issue for his committal to prison and that he be brought before the Court today for the purpose of making an application, if so advised, for his release. I reserved liberty to Mr O'Riley to apply on such notice as was appropriate to purge his contempt or otherwise vary the order. Mr O'Riley was apprehended that day and has been in prison since then. 36 Ordinarily, a contemnor, who seeks to be released from committal, is required to apologise to the Court, to undertake to comply with the orders in the future, and to make amends for any damage occasioned by the breach of the orders. 37 It is evident from what he said to the Court today that Mr O'Riley remains firmly of the view that the original property settlement order made in the proceedings between him and the plaintiff is unjust and ought never have been made, even though it was originally made by consent. That view, which he continues to express, gives one little confidence that he is going to comply with the order in the future, especially in the light of his defiance of his previous undertaking to the Court. 38 Although it is very tempting, in order to ensure that the Court's order is not further frustrated, to leave Mr O'Riley in prison until after the sale is completed on 19 June, committal is a remedy of last resort and should be resorted to only to the extent that it is absolutely necessary to enforce the Court's order and uphold the Court's authority. The seven days that Mr O'Riley has now spent in prison appear to have had some impact: I observe a distinct change in Mr O'Riley's demeanour from his previous appearances. He has enlisted some assistance from the Salvation Army, which will support him and provide alternative accommodation. For these reasons, I have somewhat more confidence in his undertaking on this occasion. I think he now appreciates that further disobedience will have severe consequences. If despite this he were to enter the property again, it would not be difficult to find him and have him arrested and committed again. 39 He has offered an apology of sorts, and he has undertaken to the Court several times this morning, with what as best I can judge appears to me more sincerity than previously, that he will comply with the order in the future and will not approach or enter upon the Bexley property. 40 I will, therefore, make an order releasing Mr O'Riley, upon his undertaking not to approach or enter upon the Bexley, property, and having explained to him that if there is any further instance of contempt, it is practically inevitable that a term of imprisonment, far lengthier than the difference between today and 19 June, would be imposed. 41 My orders are: (1) Upon the undertaking of John Joseph O'Riley to the Court that he will not approach or enter upon the property situate at and known as 119 Queen Victoria Street, Bexley in the State of New South Wales, Order that the defendant be released from imprisonment. (2) Order that the defendant pay the plaintiff's costs of today on an indemnity basis. (3) Direct that these orders be entered forthwith. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.