New South Wales Supreme Court CITATION : Mirembe Pty Ltd v Craig Dangar [2009] NSWSC 94 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 26 February 2009 JURISDICTION : Equity Division Duty Judge List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 26 February 2009 DECISION : Arrest warrant issued, execution stayed to afford defendant a last opportunity to comply CATCHWORDS : CONTEMPT – Procedure – where defendant does not appear to answer motions – where order made for defendant to attend – where defendant fails to attend but forwards medical certificate of depression LEGISLATION CITED : (NSW) Civil Procedure Act 2005, s 97 (NSW) Uniform Civil Procedure Rules 2005, r 40.7 CATEGORY : Procedural and other rulings CASES CITED : Scott v O'Riley [2007] NSWSC 560 PARTIES : Mirembe Pty Ltd as Trustee of Verna Stewart Superannuation Fund (plaintiff) Craig Gerard Dangar (defendant) FILE NUMBER(S) : SC 4543/08 COUNSEL : Mr J J Hyde (plaintiff) SOLICITORS : Certus Law (plaintiff) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST BRERETON J Thursday 26 February 2009 4543/08 Mirembe Pty Ltd as Trustee of Verna Stewart Superannuation Fund v Craig Dangar JUDGMENT (ex tempore) 1 HIS HONOUR: On 12 November 2008, Windeyer J made orders that the defendant Craig Dangar produce to the Court, within seven days of service of the order on him, all records, minutes, notes, correspondence and other documents whether in electronic or hard copy form made by the trustees of the Verna Stewart Superannuation Fund, and all records, minutes, notes, correspondence and other documents held, whether in electronic or hard copy form, of investments made by the trustees and/or the defendant while acting as trustee of the Fund. It appears from the affidavit of service of Keiani Jane Johnstone, sworn on 12 December 2008, that that order was served personally on the defendant on 11 December 2008 at 3.20pm. There is evidence before the Court which, prima facie, establishes that that order has not been complied with by Mr Dangar. 2 On 22 January 2009, Fullerton J made a freezing order against the defendant which included in paragraph 3 an order that the defendant must at or before the further hearing on the return day, which was stated to be 28 January 2009, to the best of his ability "inform the applicant in writing of all your assets world wide giving their value, location and details ... and within five working days after being served with the order swear and serve on the applicant an affidavit setting out that information." It appears from the affidavit of service of Adam Maguire, sworn 22 January 2009, that the freezing order was served on the defendant on 22 January 2009 at 7.10pm. The orders of 22 January 2009 bore the form of the Penal Notice provided by the applicable Practice Note and in compliance with (NSW) Uniform Civil Procedure Rules 2005, r 40.7, informing the defendant that if he refused or neglected to do any act within the time specified in the order for the doing of the act, "you will be liable to imprisonment, sequestration of property or other punishment". There is evidence before the Court which, prima facie, establishes that the defendant did not comply with Fullerton J's order insofar as it required provision of information to the plaintiff and the provision of an affidavit containing that information. 3 On 10 February 2009, the plaintiff filed a Motion returnable on 23 February 2009 at 9.15am seeking orders that the defendant be dealt with for contempt, first, insofar as he had failed to comply with the order made by Windeyer J on 12 November 2008 and, secondly, insofar as he failed to comply with the order made by Fullerton J on 22 January 2009. It appears from an affidavit of service of Adam Maguire sworn on 12 February 2009 that that Notice of Motion and the supporting affidavit was served personally on the defendant on 11 February 2009 at 8.30pm. 4 When the Motion came before me as Duty Judge on Monday 23 February 2009, there was no appearance by the defendant. He was called outside the Court three times and did not appear. Although it would have been open to the Court to proceed on the Motion and commit him to prison in his absence, it is highly desirable in proceedings for punishment for contempt that the respondent be before the Court and for that reason I took the course of making a further order that he attend before the Court today for the purpose of answering the charge of contempt. [cf Scott v O'Riley [2007] NSWSC 560]. 5 It seems that on 20 February at 11.41am the defendant had sent by facsimile to the Associate to Hamilton J, with a copy to the plaintiff's solicitors, a letter asserting that he had sought the advice of the Law Society of the Australian Capital Territory in relation to an alleged conflict of interest pertaining to the plaintiff's solicitors, and asserting also that he was currently being treated for clinical depression and was under medication. He attached a medical certificate dated 9 February 2009, signed by a doctor who certified that she had examined him and that in her opinion he was suffering from depression and anxiety disorder, and was unfit to attend Court from 9 February to 9 March 2009. That material was not put before me on 23 February. However, it would have made absolutely no difference to the order I made. Such a bare medical certificate – which descends to no detail, and had been given three weeks earlier – carries very slight weight, and Mr Dangar's covering letter did not assert an inability to respond to the present motion, only that he was being treated and an assertion of conflict against the plaintiff's solicitors. Mr Dangar has never appeared, on any of the several occasions on which these proceedings have been before the Court since they were first instituted. 6 It appears from the affidavit of Adam Maguire, sworn 25 February 2009, that the order made on 23 February was served on the defendant on 25 February at 10.54am at the office of Perpetual Trustees, level 12, Angel Place, 123 Pitt Street, Sydney. At 13.07 on the same day, Mr Dangar forwarded by facsimile to my Associate a letter, enclosing the correspondence addressed to Hamilton J's Associate on 22 February 2009. It indicated that the letter of 20 February had been sent to the Associate of Windeyer J (who retired from the Court last year). In his letter of 25 February, Mr Dangar asserted that he had "severe concerns" about attending Court on 26 February, and referred again to severe depression and anxiety from at least 1 October 2007 when he had had a suicide attempt. He again referred to the medication he was receiving, and continued to maintain that the plaintiff's solicitors were affected by a conflict of interest. 7 Yesterday, at 4.12pm, my Associate received a further facsimile letter from Mr Dangar advising that he was being admitted into the Sydney Clinic "tomorrow, 26 February 2009" for treatment for anxiety and depression, and "I am unable to attend pursuant to the instructions given by Justice Brereton on 23 February 2009. I am unsure of the protocol in this matter and hope you can direct this letter to the necessary area". 8 While one must take into consideration the material that Mr Dangar has provided so far as his condition is concerned, it has to be said that many litigants are affected by depression. Litigation is often a depressive experience for those on its receiving end. Many persons who attend and appear before Courts, particularly in their criminal jurisdictions, are in the course of treatment for depression and on anti-depressive medication. That circumstance cannot be allowed to deprive plaintiffs of their legal rights. The remedy is easily in Mr Dangar's hand, by complying, even if belatedly, with the orders of Windeyer J and Fullerton J. The Court cannot stand by and allow those orders to be disregarded indefinitely while Mr Dangar considers himself depressed. His correspondence suggests that he is able to raise issues which he wishes to agitate, but it seems that he does not or will not address the importance of complying with the orders that have already been made against him. 9 As a result of his non-compliance with the order made on 23 February, the Court is now in a position where it can issue an arrest warrant under s 97 to have Mr Dangar brought before the Court in circumstances where he has failed to comply with an order that he attend Court. I propose to do so, but leave him one last chance to attend before the court voluntarily. 10 The medical evidence that Mr Dangar has provided, faint as it is, suggests that his unfitness will expire on 9 March of this year. This should not be taken as any indication that I will be deterred from the course that I now propose to follow by any further medical certificate. The course I propose to adopt is to adjourn the proceedings to 10 March, to issue a warrant for Mr Dangar to be brought before the Court on that date, to stay its execution until 9 March, and to reserve liberty to him to apply in the meantime for a discharge of that order, which I would grant if satisfied that he will attend voluntarily on 10 March, or on his putting before the Court appropriate evidence, on some other date. But it must be stressed that the Court will not act on correspondence from Mr Dangar, and that if he wishes to make an application he must make it formally in Court by Notice of Motion or otherwise by arrangement with my Associate and on notice to the plaintiff, and supported by proper medical evidence – by which I would expect a comprehensive report from a treating medical practitioner who ought to be available for cross-examination at the time. If he does not do so, he will be arrested and brought before the Court in custody on 10 March 2009. 11 My orders are: (1) Pursuant to (NSW) Civil Procedure Act 2005, s 97, order that an arrest warrant issue addressed to the Sheriff of NSW and all Sheriff's Officers to arrest Craig Dangar and bring him before the court sitting at Court 6 Level 3 Hospital Road Court Complex on Tuesday 10 March 2009 at 10:00am detaining that person if necessary in custody in the meantime. The arrest warrant is issued for disobedience of an order made on 23 February 2009 to attend court on 26 February 2009 to answer a motion (filed on 10 February 2009) that he be dealt with for contempt of court. The warrant is issued under s 97 of the Civil Procedure Act . The warrant is sufficient authority for the sheriff with the assistance of such police officers that may be necessary to arrest the person named in the warrant and bring him before the court specified. (2) Order that execution of the warrant be stayed until 08:00 am on Monday 9 March 2009. (3) Reserve liberty to the defendant to apply to vary or discharge this order upon notice of motion by arrangement with my associate. (4) Direct that a copy of my reasons given this morning be taken out. Request that that be done expeditiously. (5) Direct that the plaintiff effect personal service of a copy of these orders and my reasons given today on Mr Dangar as soon as practicable after they become available. (6) Direct that these orders be entered forthwith. ********** 04/03/2009 - Name change - affidavit of service - Paragraph(s) Para 1 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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