Mahaffy v Mahaffy [2013] NSWSC 245

Supreme Court New South Wales

Medium Neutral Citation: Mahaffy v Mahaffy [2013] NSWSC 245 Hearing dates: 09/09/2011, 21/10/2011, Written submissions: December 2011 Decision date: 28 March 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Charges 8, 11, 17 and 18 set out in the Amended Statement of Charge filed on 9 October 2011 be, and hereby are, summarily dismissed. (2) Jeffrey Mahaffy is to file and serve a Further Amended Statement of Charge which accords with this judgment on or before 4pm 24 April 2013. (3) The Amended Notice of Motion filed on 2 August 2011 by David Mahaffy, is otherwise dismissed. (4) Each party is to pay his own costs of the Notice of Motion, including any reserved costs. (5) Jeffrey Mahaffy is to file and serve all affidavits of any witnesses, including himself, upon which he proposes to rely in support of his claims for contempt on or before 4pm 12 July 2013. (6) Jeffrey Mahaffy is to file and serve a list of documents which he proposes to tender as part of his case in chief, on or before 4pm 12 July 2013. (7) David Mahaffy is to file and serve all affidavits of any witness, including himself, upon which he proposes to rely in defence of the contempt allegations, on or before 4pm 11 October 2013. (8) David Mahaffy is to file and serve a list of all documents which he proposes to tender as part of his defence of the contempt proceedings on or before 4pm 11 October 2013. (9) Stand proceedings over for directions before the Registrar of the Common Law Division at 9am on 18 October 2013. (10) Direct that if either party has not complied with any order of the Court, or else will not be able to comply with any order of the Court, that party is to forthwith restore the matter to the List of the Registrar of the Common Law Division, and is to provide at that time an affidavit which fully sets out all of the facts, matters and circumstances upon which he relies to explain and excuse his non-compliance with the Court's order, or else his prospective non-compliance. (11) General liberty to restore on 24 hours notice. Catchwords: PRACTICE AND PROCEDURE - Summarily dismissal of a charge of contempt. CONTEMPT - Deliberate failure to comply with a court order requiring the payment of moneys - Disregard of orders for costs under the Civil Procedure Act 2005 and alleged deliberate conduct to prevent the enforcement of costs orders - A charge of contempt for alleged words spoken, or otherwise written and filed, in Court. Legislation Cited: Bankruptcy Act 1869 (UK) Civil Procedure Act 2005 Debtors Act 1869 (UK) District Court Act 1973 Imprisonment for Debt, Rules [1834] NSW Sup C 16 Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 Bates v Bates (1888) 14 P.D. 17 Bearden v Georgia 461 US 660 (1983) Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Hughes v Department of Human Resources 502 S.E. 2d 233 (1998) In Re Edgecombe, Ex Parte Edgecombe [1902] 2 KB 403 Ingram v Ingram [1927] VLR 335 Leavis v Leavis [1921] P 299 Lewis v Ogden [1984] HCA 26; (1984) 153 CLR 682 Markisic v The Commonwealth of Australia [2007] NSWCA 92; (2001) 69 NSWLR 737 Parashuram Detaram Shamdasani v King-Emperor [1945] AC 264 R v Dunbabin; ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 R v Fletcher; ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248 Siminton v Australian Prudential Regulation Authority [2008] FCAFC 89 Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Tate v Short 401 US 395 (1971) Williams v Illinois 399 US 235 (1970) Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 Texts Cited: Borrie and Lowe: The Law of Contempt (4th Ed, 2010) Category: Procedural and other rulings Parties: Jeffrey Mahaffy (Applicant) David Mahaffy (Respondent) Representation: Counsel: