Supreme Court New South Wales Medium Neutral Citation: Aram v The Owners Strata Plan No. 20175 [2012] NSWSC 1220 Hearing dates: 27/09/2012 Decision date: 27 September 2012 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Set aside order for defendant to serve its evidence; ancillary orders. Catchwords: [PROCEDURE] - interlocutory issues - application to set aside an order that the defendant serve its evidence on the plaintiff's contempt motion - whether statement of charge is defective. Legislation Cited: Supreme Court Rules 1970 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Australian Securities & Investments Commission v Sigalla (No.4) (2011) 80 NSWLR 113 Category: Procedural and other rulings Parties: Henri Walter Aram (Plaintiff) The Owners - Strata Plan No. 20175 (Defendant) Representation: Counsel: P J English (Plaintiff) S J Duggan (Defendant) Solicitors: Doyle Edwards Anderson Lawyers (Plaintiff) Thompson Cooper Lawyers (Defendant) File Number(s): 2011/172944 Judgment (ex tempore - revised 27 september 2012) 1HIS HONOUR: The original issues in these proceedings concerned the alleged failure of the defendant Owners Corporation to fulfil its statutory duty to maintain, repair and keep in good condition the common property of the strata scheme. The plaintiff, a lot owner, claimed that his lot was damaged by the infiltration of water through defects in the common property. 2On 18 April 2012, the proceedings were (it seemed) settled and orders were made by consent which required the Owners Corporation, among other things, to carry out defined works of repair. 3The plaintiff took the view that the works were not being carried out, in accordance with the court's orders, in a number of ways. There were some interlocutory skirmishes. Eventually, pursuant to leave granted by the court, the plaintiff filed a notice of motion seeking that the defendant be dealt with for contempt of court. As is required by SCR Part 55, there was annexed to the notice of motion a statement of charge, and the plaintiff's evidence on the contempt application was given by affidavit. All those documents have been served as well as filed. 4On 28 August 2012, the matter came before me to have the notice of motion listed for hearing. On that day, each party was represented by counsel. I made orders by consent that included, as order 4, an order "that the defendant serve its evidence on the plaintiff's contempt motion by 25 September 2012". 5The matter was relisted today on the application of the Owners Corporation. It has come to the realisation of its legal advisers that, the contempt alleged being criminal in nature, it should not have consented to an order that it serve its evidence that would be relied upon in defence of the allegation of contempt if, at the conclusion of the plaintiff's evidence, the court holds that there is a case to answer. 6There is a side issue, in that the Owners Corporation also alleges that the statement of charge is defective, and remains defective notwithstanding the supply of particulars (another matter contemplated by the orders of 28 August 2012). 7The latter matter can be dealt with simply enough. When the application is listed for hearing, it would be open to the Owners Corporation to move for appropriate relief in relation to the statement of charge. The precise nature of that relief does not need consideration at this point. If the statement of charge is in effect quashed then there will be no further proceedings on the motion. If it is not then, in the ordinary way, the plaintiff's evidence will proceed. 8The application to set aside the order for the Owners Corporation to file its evidence is of more concern. In Australian Securities & Investments Commission v Sigalla (No.4) (2011) 80 NSWLR 113, White J concluded that an application to have an alleged contemnor dealt with for criminal contempt was not a civil proceeding and thus was outside the Uniform Civil Procedure Rules: specifically, in that case, r 29.10. 9It is clear that, in this case, the contempt alleged is criminal contempt: wilful and contumacious defiance of the court's orders, aggravated by the fact that those orders were made by consent. 10In ASIC v Sigalla at [87], White J observed that because the proceedings were essentially criminal in nature, "the safeguards of criminal procedure should apply". His Honour continued by stating that: "In a criminal proceeding, if the prosecution does not in its case adduce evidence which, taken at its highest, is capable of establishing guilt beyond reasonable doubt the accused is entitled to be acquitted in respect of those charges for which proof is lacking." 11Another "safeguard of criminal procedure" is that, subject to any relevant statutory exception, an accused person cannot be compelled, until the conclusion of the prosecution's case, to make any answer to the charge. That is because the golden thread of English jurisprudence requires the prosecution to prove, beyond reasonable doubt, every element of the charge. Again subject to any statutory exception, there is no requirement for the accused person to disprove any element of the charge. 12In general (and I will not keep on excepting statutory provisions that have a contrary effect), an accused person cannot be compelled to indicate, before the trial or during the course of the prosecution case, what his or her defence is. Of course, certain matters will no doubt become clear in the course of cross-examination of the prosecution's witnesses. But that is simply a necessary incident of effective cross-examination, not a result of the application of any legal requirement of disclosure. 13Of course, the direction with which I am concerned was a direction for the service of evidence. There is, as Mr English of counsel for the plaintiff has submitted, a distinction between serving affidavits on the one hand and going into evidence (by reading them) on the other. Thus, the mere service of an affidavit does not amount to an election to go into evidence. It follows that, even if affidavits are served, it would be open to the Owners Corporation, at the conclusion of the plaintiff's case on the contempt motion, to move for a verdict in effect of acquittal, or for an order that the notice of motion be dismissed, on the basis that the plaintiff has not made out his case to the requisite standard of proof beyond reasonable doubt. 14Nonetheless, it could be - and I think this is a real rather than merely a theoretical possibility - that if the Owners Corporation were required to serve its evidence before the hearing, a consideration of the matters raised in that evidence would enable the plaintiff's legal advisers to refine, or refocus, their case so as to meet the anticipated "defence". That is not something which ordinarily is permissible under the rules of criminal procedure in this State. 15I accept, as Mr English said, that it would be possible to add to the order already made an order having the effect of preventing the plaintiff from relying directly on the affidavits - for example, by tendering them as some sort of admission. But such a condition does not seem to me to address the concern to which I have referred. 16If those matters had been raised back on 28 August 2012, I would not have made the order that is presently in question. But since the orders were by consent, I took the view that it was for the parties rather than the court to decide what was appropriate in the conduct of the contempt application. 17The Owners Corporation is thus asking the court to exercise its discretion to discharge an order already made. Since the order is interlocutory, there is no technical inhibition to the court's doing so. 18In the ordinary way, the court would take into account the requirements of s 56 of the Civil Procedure Act 2005 (NSW). But since this is not a civil proceeding, the commands of s 56, (if they are at all applicable, which I think is not the case) are of less significance. 19Thus, I think, the exercise of discretion is one that is required to be conducted bearing in mind the policy of the law in relation to criminal charges. It seems to me that the policy is of such strength and such long standing that the court must give effect to it, even at the cost of setting aside an order made by consent, compliance with which would have produced considerable efficiency in the hearing and determination of the application. 20In short, I think that the application must succeed, and that the relevant order should be set aside. 21I accept that this will lead to considerable inconvenience (to put it mildly) on the hearing of the application, if matters get to the stage where the plaintiff's application proceeds and the court concludes that the plaintiff has made out, against the Owners Corporation, a case to answer. But again, it seems to me, that consideration is something which must give way to the insistent demands of the safeguards for accused persons established over many years. 22That leaves the question of costs. The plaintiff asks for his costs of today. The Owners Corporation opposes that, apparently on the basis that it will succeed in its argument that the statement of charge is defective. 23In circumstances where the order was made by consent (and the Owners Corporation was, as I have said, represented by counsel when the order was made) and where it is the Owners Corporation that is asking the court for a discretionary exercise in its favour, I think that it is appropriate that the Owners Corporation should bear the costs of that application. Particularly bearing in mind the history, I do not think that it was unreasonable for the plaintiff to appear today and to challenge the exercise of discretion. Thus, I think, it is appropriate that the plaintiff should have his costs of today. 24I make the following orders: (1)Set aside order 4 made on 28 August 2012. (2) Order the defendant to pay the plaintiff's costs of today. 25There is another issue to be looked at. There is some dispute between the parties as to whether the relevant remedial works have now been completed. The extent of that dispute is unclear. Nothing in the criminal nature of what is before the court should prevent the parties from conferring in good faith to reach an agreed position on that outcome. Accordingly, I make the following further order: (3) Direct the parties and their legal advisers to confer in relation to the state of completion of the relevant works of repair to the common property and to produce a joint statement as to the state of completion of those works on the commencement of the hearing of the application on 10 October 2012. ********** 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. Decision last updated: 10 October 2012