ALEXANDER v. CRAWFORD [2003] NSWSC 426

Supreme Court of NSW|2003-05-22|Before: Bryson J, Barrett J, Campbell J

CITATION : ALEXANDER v. CRAWFORD [2003] NSWSC 426 HEARING DATE(S) : 03-04/03/03 JUDGMENT DATE : 22 May 2003 JURISDICTION: EQUITY JUDGMENT OF : Bryson J at 1 DECISION : Plaintiff is guilty of Contempt of Court as charged.

CATCHWORDS : CONTEMPT - what constitutes - breach of undertakings - plaintiff in De Facto Relationships claim applied for injunction to restrain defendant from approaching house and other interlocutory orders - parties agreed to various interlocutory injunctions and undertakings including plaintiff not to deal with paintings in the house "other than housing the paintings at the said property, or such other place as the Court may order or otherwise agree in writing" - arrangement to inspect and catalogue paintings was not carried out - parties joined in selling house and as settlement approached plaintiff removed paintings without asking for agreement or Court order - after hearing of charge of contempt, parties settled proceedings overall - finding of contempt but no further order - discussion of proof of undertaking where communicated to Court by counsel - the Court accepts the reality of representation of parties to civil litigation by their solicitors and counsel. LEGISLATION CITED : s.118 of the Evidence Act 1995 Witham v. Holloway (1995) 183 CLR 525 Australian Meat Industry Employees' Union v. Mudginberri Station Pty Ltd (1986) 161 CLR 98 Australian Competition and Consumer Commission v. Hughes [2001] ATPR 41-807 C C O M Pty Ltd v. Jiejing Pty Ltd (1992) 36 FCR 524 Attorney General v. Times Newspapers Ltd (1992) 1 AC 191 CASES CITED : Callow v. Young (1886) 55 Law Times NS 543 In Re Evans, Evans v. Evans [1893] 1 Ch 252 Taylor v. Whelan [1962] VR 306 Biba Ltd v. Stratford Investments Ltd [1973] 1 Ch 281 D v. A & Co. [1900] 1 Ch 484 Hussain v. Hussain [1986] Fam 134 at 140 Douglas v. Douglas (1976) 10 ALR 285 PARTIES : Victoria Alexander - Plaintiff Robin Crawford - Defendant FILE NUMBER(S) : SC 3492/02 COUNSEL : J. Wheelhouse - Plaintiff P. Brereton SC & A. Vincent - Defendant SOLICITORS : Delaney Lawyers - Plaintiff Barkus Edwards Doolan - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3492/02 VICTORIA ALEXANDER v. ROBYN CRAWFORD JUDGMENT 1 HIS HONOUR: These reasons deal with the defendant's Notice of Motion of 22 October 2002 claiming that the plaintiff is guilty of contempt of Court. 2 The plaintiff commenced the proceedings by Summons on 8 July 2002 and claimed injunctions restraining the defendant: (1) from selling, disposing or encumbering any of ten paintings; (2) from dealing in any way with the paintings, (3) from approaching within 100 metres or entering 22 Hopetoun Avenue, Mosman, and (4) from assaulting, molesting, harassing or communicating in any manner whatsoever with the plaintiff. The plaintiff claimed a further injunction requiring the defendant to return paintings to 22 Hopetoun Avenue, Mosman. The paintings referred to in the Summons were these: Painting Artist Giraffe Brett Whitely Arezzo Turn-off 1 Jeffrey Smart The Long Shadow Jeffrey Smart Study for Hide and Seek 3 (Robin calls this Peek A Boo) Jeffrey Smart Out Strolling Clarice Beckett Bundeena Charles Blackman Monkey Brett Whitely Leave Jason Benjemin Free Spirit Leunig Italian Scene Unknown artist 3 On the same day 8 July 2002 the plaintiff applied to the Court (Barrett J) and obtained an immediate injunction as in Claim 1. The Summons was returnable on 9 July when Campbell J made an injunction in similar terms until 15 July and adjourned the Summons to that day for argument about whether Claim 2 should be granted on an interlocutory basis. On 9 July 2002 the plaintiff filed in Court an Amended Summons claiming remedies under s.20 of the Property (Relationships) 1984; she claimed a number of items of property including five of the paintings mentioned in the Schedule. She made many other claims. 4 The proceedings came before Campbell J again on 15 July 2002 when the plaintiff was represented by Mr Wheelhouse of counsel and the defendant by Mr Condon. There were some negotiations between the legal representatives of the parties, and Campbell J made an order, by consent and without admissions, which expressed in elaborate terms the arrangements the parties had made. His Honour made this note of the orders: I note the undertaking as to damages given by each of the plaintiff and defendant by their respective counsel. B/Consent without admission I make orders and give directions in terms of a four page document which I have initialled and shall place with the papers. I note the undertaking contained in a 1 page document which I shall initial and place with the papers. I grant leave to counsel for the plaintiff to uplift and return to the Court by 4.00 pm tomorrow the four page document to which I have just referred. 5 The one-page document initialled by Campbell J was, omitting formal parts as follows: Upon the defendant by his counsel giving the usual undertaking as to damages: (1) Note the undertaking of the plaintiff to the Court that, until further Order of the Court, she, by herself, her servants or agents will not: (a) sell, dispose, or encumber any painting presently located at the property known as 22 Hopetoun Avenue, Mosman, in the State of NSW ("the paintings") (b) deal in any way with the paintings, other than housing the paintings at the said property, or such other place as the Court may order or otherwise agree in writing. 6 The four-page document set out an order restraining the defendant from dealing with the paintings referred to in the Amended Summons other than housing them at Level 14, 155 Macquarie Street, Sydney; and restraining him from entering the property known as 22 Hopetoun Avenue, Mosman, except by leave of the Court or the consent of the plaintiff in writing. The document also set out detailed procedural directions, giving a timetable for various steps to prepare the matter for hearing, leading to a Directions Hearing before the Registrar on 6 November 2002, and said: (l) Note the agreement between the parties that each shall permit the other to inspect and value the assets of the other by arrangement between the respective party's solicitors, in [the] event [no] mutually convenient date is agreed each party shall be at liberty to approach the Court for further directions on 3 days' written notice. 7 The effect of the orders then was that the plaintiff gave the Court several undertakings and obtained injunctions restricting the defendant's dealing with the ten paintings mentioned in the Summons and preventing him from entering 22 Hopetoun Avenue, Mosman, the defendant gave an undertaking as to damages and the plaintiff gave an undertaking limiting what she would do with paintings at 22 Hopetoun Avenue, Mosman. 8 In his Notice of Motion the defendant seeks: (1) A declaration that the plaintiff is guilty of Contempt of Court in that on or before 29 August 2002 the plaintiff, without justification, breached an undertaking given by her on 15 July 2002 to this Honourable Court (and goes on to set out the terms of her undertakings.) (2) An order that the plaintiff be punished or otherwise dealt with for such contempt of court. 9 Claim 3 is for an order relating to furnishing information about the location of the paintings formerly housed at 22 Hopetoun Avenue, Mosman, but I was unable to address that application while the claim that there has been the contempt of the court was under consideration. It is not, in general, good practice to join claims for other remedies in a Notice of Motion seeking an order that a party be dealt with for contempt. 10 The defendant also filed a Statement of Charge in these terms: 1. On 15 July 2002 the plaintiff, through her Counsel gave an undertaking to this Honourable Court not to sell, dispose, encumber any painting then located at the property known as 22 Hopetoun Avenue, Mosman in any way other than to house the said paintings at those premises or such other place as the Court may order or otherwise was agreed in writing between the plaintiff and the defendant. 2. On or before 29 August 2002 the plaintiff caused or permitted the paintings previously housed at the premises 22 Hopetoun Avenue, Mosman with the exception of the paintings known as Beryl's Trip by Peter Kingston and the painting known as Barramundi Fishing by Robert Juniper to be removed from those premises without justification and without either order of this Honourable Court or agreement in writing with the defendant. 11 At the hearing before me on 3 and 4 March 2003 the plaintiff appeared by counsel and defended the charge of Contempt. The defendant bears the onus of proof of the charge and each element in it, and the standard of proof is proof beyond reasonable doubt. 12 I will refer to some propositions of the law relating to contempt which bear on the present application. In Witham v. Holloway (1995) 183 CLR 525 at 534 Brennan Deane Toohey and Gaudron JJ said: The differences upon which the distinction between civil and contempt was based were, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings was punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, made it clear as Deane J said in Hinch , (1987) 164 CLR 15 at 49 that all proceedings were contempt 'must realistically be seen as criminal in nature'. The consequence is that all charges of contempt must be proved beyond reasonable doubt.

See too McHugh J at 548. 13 In Australian Meat Industry Employees' Union v. Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106 to 115 the majority reviewed the law of contempt particularly in relation to the distinction between civil contempt and criminal contempt, and in relation to the power to impose fines. As the judgment shows, the distinction between civil contempt and criminal contempt is a difficult one and attempts to maintain it with rigour have led to confused outcomes. The present application appears to me to be more closely related to what their Honours referred to at 106 as civil contempt in this passage: Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as 'civil contempt'; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in Court while it is sitting or publishing comments on a pending case, which have both been described as 'criminal contempt': Fox, History of Contempt of Court (1927) p1. As Lord Diplock said in Attorney General v. Leveller Magazine Ltd [1979] AC 440 at p 449, criminal contempts '… all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process.' 14 The classification of the contempt is not my immediate purpose; the immediate purpose is to determine whether there has been a contempt of court, and in that regard the distinction between civil contempt and criminal contempt is not of immediate importance as the same standard of proof is required in each case. 15 The test applied for determining whether there has been a contempt of court in disobeying an order or in not conforming to an undertaking is objective. The position was summarised in Australian Competition and Consumer Commission v. Hughes (2001) AT PR 41-807 by Tamberlin J who said: It is not necessary to prove any subjective intent to deliberately disobey the order: see Stancomb v. Trowbridge Urban District Council [1910] 2 Ch 190 at 194. However such intent will be important in determining what is an appropriate penalty: see Attorney-General v. Times Newspapers Ltd [1992] 1 AC 191 at 217-218. An honest belief that a failure to act does not constitute a breach of an injunction is not a defence: see McNair Anderson Associates Pty Ltd v. Hinch [1985] VR 309 at 313-314. 16 To similar effect see C C O M Pty Ltd v. Jiejing Pty Ltd (1992) 36 FCR 524 at 530 (Drummond J).

17 The passage in Attorney General v. Times Newspapers Ltd (1992) 1 AC 191 to which Tamberlin J referred is found at pp217 and 218; [1991] 2 All ER 398 The appellant's primary submission is that it not only was not, but was not capable of being, a contempt of court because, although they were fully aware of the orders which had been made against "The Guardian" and the "Observer," they were not themselves bound by those orders nor were they assisting in or procuring or inciting a breach of those orders by the two newspapers which were bound. This submission involves some analysis of the particular type of contempt with which the appeal is concerned. A distinction (which has been variously described as "unhelpful" or "largely meaningless") is sometimes drawn between what is described as "civil contempt," that is to say, contempt by a party to proceedings in a matter of procedure, and "criminal contempt." One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and can be waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited. When, however, the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt. There is, however, this essential distinction that his liability is for criminal contempt and arises not because the contemnor is himself affected by the prohibition contained in the order but because his act constitutes a wilful interference with the administration of justice by the court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice - an intention which can of course be inferred from the circumstances. 18 The defendant gave evidence which showed that he was present at Court on 15 July 2002, attending with his solicitor and counsel and observed numerous discussions during the course of the morning concerning the resolution of the pending application; he saw Mr Wheelhouse, the plaintiff's counsel, writing out documents and giving Mr Condon, the defendant's counsel, a draft of the undertakings and orders that were subsequently made including the undertaking given by the plaintiff in relation to paintings. He gave evidence that the defendant's solicitor told the plaintiff's solicitor that the draft was approved provided that the plaintiff would give the undertaking that had been drafted, the plaintiff's solicitor said that he would get instructions, and returned five minutes later and expressed approval whereupon counsel, solicitors and the defendant went into the courtroom and the Judge made the orders. It was the defendant's evidence that at no time has the plaintiff sought his consent to remove paintings from 22 Hopetoun Avenue, Mosman. 19 Most of the evidence dealt with two related themes: sale of the house with vacant possession, and the moveable property in the house. In and after April 2002 the plaintiff and the defendant joined in preparations for sale and in sale of the property at 22 Hopetoun Avenue, Mosman. They joined in giving instructions to act for them to Mr Peter Calov of Coudert Brothers, solicitors, who had several legal assistants. Mr Calov and his firm had instructions limited to acting on the sale of the property, and had no part in legal business in which the parties' interests were in conflict. At every important point they obtained instructions from both clients. Contracts for Sale of the property to Mrs L.D. Weston and Mr N.M. Weston were exchanged on 27 May 2002. The contract provided for completion 126 days after the contract date, that is on 30 September 2002. A deposit of $940,000 was to be held by the vendors and one half of that sum was paid to each of them. On 14 August the purchaser's solicitors asked for settlement to take place on 2 September. Coudert Brothers sent notice of this to each vendor and made arrangements to settle accordingly. 20 In July and August there were exchanges of correspondence between the solicitors for the parties, in which there were some remarkably acrimonious and misdirected observations; among other things the correspondence dealt with furniture and personal property which the plaintiff agreed the defendant was to remove from the house. 21 In the correspondence between the solicitors for the plaintiff and the defendant there are a number of references to personal property at 24 Hopetoun Avenue. The defendant attended the premises by arrangement with valuers on 24 July but for reasons which have been disputed there was no successful inspection or valuation and no inventory was made; and no further inspection or valuation took place before the sale was completed on 2 September. The defendant's solicitor said on 8 August 2002 that he would prepare a list of the items that he would seek to obtain from the house prior to completion of the sale. 22 At some time about 22 August the purchasers asked for pre-settlement access to the property and the defendant agreed. There were still many items of furniture and other personal property in the house, and the plaintiff was in occupation; while the defendant was restrained by injunction from entering the property. The defendant was absent from Australia from 29 July to 22 August. The defendant became aware, soon after his return to Australia, that arrangements were being made for settlement to take place on 2 September. He made arrangements for Ms Stacey Holland, who is his Personal Assistant, to attend at the Mosman property to ascertain the quantity and bulk of items that needed to be removed and to arrange for a removalist to collect them. Ms Holland attended the property on 28 August and made a list of items she viewed there which the plaintiff (who was no longer living there) had left at the Mosman property. On 29 August the removalist arranged for by Ms Holland collected some items for the defendant. 23 Ms Stacey Holland gave evidence relating to events at her attendance on 27 and 29 August. On 27 August Stacey Holland did not establish by inspection and in detail which paintings were present. She looked at the lounge-room and the kitchen. On 29 August she walked through the house, saw every room and compiled the list attached to her affidavit. She inquired about a number of items which she observed still in the house including 10 paintings in Mr Crawford's office, and a large painting of ferries in the area above the stairs leading to the office. She also saw two small paintings in gold frames, a blue and white jar and a medium size painting of a row boat in the dining room. She asked the agent in attendance about these many items and said "What about these things?" to which he replied "No. They're Victoria's. She is coming back this afternoon." Ms Holland arranged for the removalist to collect many items which belonged to Mr Crawford and sent them to a storage facility. She did not remove the paintings. 24 Ms Stacey Holland made a list of property which she said was left at the house, meaning that she and the removalist did not remove the items. There are many items on this list, and they include: 10 paintings in RAC [the defendant] office 2 small paintings - Lockhardt (blue and white jars with gold frames) Medium size painting of row board. Big painting of ferries. 25 Among the many matters dealt with in communications between parties' solicitors late in August, including many messages exchanged on 27 August are:

distribution of the proceeds of sale to be received on 2 September - payment for expenses incurred in maintaining the property and presenting it for sale. - removal of items in the garage, - surrender by the defendant of the remote controls for the garage doors, - access to the property by the purchaser.

There were references to various items of furniture and personal property which were to be removed by one party or the other but very little reference to paintings. In particular there was no reference to removing a number of paintings, whether those seen on the premises by Stacey Holland or any others, from the house, or storing them anywhere else; there was no reference to asking the Court to order that they be dealt with other than by housing them in the property, and no reference to any proposal to obtain the defendant's agreement for their removal. 26 The plaintiff told Coudert Brothers, probably about 27 August, that a bed and painting in the spare room belonged to the defendant. Otherwise there is no sign in the evidence of any express reference to whether the paintings referred to in the undertaking were to stay in the premises, or to be removed, where they were to go and what was to happen to them. 27 Among many communications which passed on 27 August, the defendant's solicitors in a letter to the plaintiff's solicitors of that day said: We have previously requested by telephone that your client advise where the paintings contained at the Hopetoun Avenue property are currently located. Please confirm those paintings are at Hopetoun Avenue.

We would remind your client of her obligations pursuant to the undertakings given by her at Court on 15 July 2002. If your client has moved any painting we require her immediate explanation as to her conduct and the location of the paintings. 28 In a message of the same day from the plaintiff's solicitors to the defendant's solicitors, her solicitor stated: 2. Our client has removed the majority of her personal possessions from the property. Items that belong to her that she has sold to the purchasers remain at the property.

A collection of your client's possession have been placed in the lounge-room. Other items including a bed, refrigerator and dishwasher remain on the property. 29 There are also communications about wine at the property. In another message, which may have been intended as a reply to the defendant's solicitors' reference to the undertakings and the paintings, the plaintiff's solicitor said on 27 August 2002: 1. No undertaking was given by our client at Court on 15 July, 2002 as referred to in your correspondence; …

This was followed by further exchange of letters about the existence and contents of the undertaking which the plaintiff's solicitor disputed. 30 Then by letter on Friday 30 August 2002 the plaintiff's solicitor said: We refer to correspondence regarding the location of the paintings contained at the Hopetoun Avenue property. We are instructed to advise that all the paintings, apart from two, have been removed from the Hopetoun Avenue property and transferred to our client's new residence. Two of the paintings are located at the business premises of The Bathers Pavillion. 31 The paintings which Ms Stacey Holland saw in the house and left there on 29 August are or are included in the paintings dealt with in the plaintiff's solicitor's letter of 30 August 2002. 32 There can in my view be no doubt whatsoever that the plaintiff gave to the court on 15 July 2002 the undertaking referred to in the Statement of Charge. The defendant's evidence describes the process of negotiation, the writing out of documents by the plaintiff's counsel and exchange of drafts, statement of agreement by the plaintiff's solicitor and then, in the Courtroom, the making of the orders by the Judge. The Associate's Record of Proceedings in the Court file shows that the orders were made and incorporated undertakings including the undertaking by the plaintiff as alleged. The four-page document and one page document referred to in Campbell J's order are handwritten, and most of the handwriting is, as I was told by counsel himself, the handwriting of the plaintiff's counsel. The terms of the undertaking show that to the shared knowledge of the parties there were paintings then located at 22 Hopetoun Avenue; it could not rationally be supposed that the plaintiff gave an undertaking on the subject of her dealings with paintings although there were none there, or if she so believed. 33 Quite apart from evidentiary material about the behaviour of the plaintiff's legal representatives in giving the undertaking, in the absence of any evidentiary material, the fact that the plaintiff gave an undertaking would be established by the terms of the Court's order which says that she did. There has of course been no application to set aside or vary the orders which were founded in part on the plaintiff's undertaking, and the orders and his undertakings imposed significant restraints on the defendant to the existence of which the plaintiff's solicitors referred in correspondence. An endeavour to show (and there has been none) that the order ought to be set aside or the plaintiff ought to be relieved from the undertakings on the ground that her counsel and solicitor did not have authority to give them on her behalf would have jeopardised the restraints imposed by the order on the defendant. The Court accepts the reality of representation of parties to civil litigation by their solicitors and counsel when the Court accepts and acts on undertakings; the Court's practice is formed around this reality. Courts very usually accept and act on undertakings by parties in making interlocutory orders, and would not do so if the undertakings did not have practical effect; and they would not have practical effect if at the stage of enforcement the courts did not take notice of the terms of their own orders but treated a party seeking enforcement as having a burden of proving actual authority of counsel to give an undertaking on behalf of the party, a burden which could not be discharged in view of the client legal privilege attaching to a confidential communication made between the client and a lawyer provided for by s.118 of the Evidence Act 1995, and the corresponding privilege under the common law. There would be no practice of relying on undertakings communicated to the court by counsel if their enforcement were impossible, or if enforcement involved proving a fact which it was not within the power of another litigant to establish. For the same reason it cannot be necessary for the party seeking enforcement to prove that, even if it were established that the plaintiff gave authority for her undertaking to be given to the Court, she knew that in fact it had been given to the Court. The plaintiff's counsel contended that this is necessary, but the submission cannot be right. 34 It is important for present purposes that it is an undertaking of a party to the Court which is sought to be enforced; in principle there is no difference between the obligation imposed by an undertaking and the obligation imposed by an injunction or other order made by the Court, but some differences arise in procedural and consequential ways. Part 42 r.6 of the Supreme Court Rules deals with the orders which may be made where a person refuses or neglects to do an act which a judgment requires him to do, or does something which a judgment requires him to abstain from doing. Judgment is defined for the purposes of Pt.42 by r.1(a) "Judgment includes an order;". Part 42 r.8 prescribes a procedure which must be followed if judgment is to be enforced by committal or sequestration; of course those are not the only methods by which a judgment may be enforced in contempt proceedings. In the procedure prescribed by r.8 a Minute of the judgment, with notice for compliance, must be served; there are detailed prescriptions in r.8. 35 The procedures prescribed by Pt.42 do not deal at all with enforcement of undertakings. There can be no doubt that the omission of reference to undertakings is deliberate, as there has been long-standing recognition that procedures for enforcement of undertakings are not required to follow the same course as enforcement of orders. It appears that underlying the difference of approach is the need for certainty that the party had knowledge that an order of the court required him to do or omit some act, whereas a party must be taken to know of the undertaking he has given to the Court. The different position in which enforcement of an undertaking stands is expressed in Callow v. Young (1886) 55 Law Times NS 543 at 544: Service on the solicitor on the record of the notice of motion to attach the defendant was sufficient. It was good service on the defendant. It is also immaterial that the breach complained of was of an undertaking and not of an injunction, for it is not necessary to show that the person sought to be attached had knowledge of his undertaking. He must be presumed to have known that he had given his undertaking. In the case of an injunction obtained against a person, service of the order upon him gives him knowledge of the order made.

Attachment, to which Chitty J referred, was a procedure for arrest of a person in contempt; attachment is now obsolete and it is no longer to be distinguished from committal. The Registrar's report reproduced in In Re Evans, Evans v. Evans [1893] 1 Ch 252 at footnote 5, pages 259 to 264, deals with the difference between committal and attachment, and shows that procedural distinctions between the enforcement of orders and the enforcement of undertakings are of long-standing. There is further recognition that there are procedural distinctions, and that prior service of an order embodying an undertaking may not be required, in the judgment of Little J. in Taylor v. Whelan [1962] VR 306 at 307. 36 My approach to Pt.42 does not seem to accord with the approach made in Biba Ltd v. Stratford Investments Ltd [1973] 1 Ch 281 by Brightman J to the Rules of the Supreme Court Order 45 rule 5; his Lordship appears to have proceeded on the assumption that it was important or necessary to establish that the proceedings against the director for breach of an undertaking by the company fell within RSC Order 45 r.5, notwithstanding that, as his Lordships said at 287: There can, I think, be no doubt that a person who consciously aids and abets a contempt is liable to proceedings for contempt, quite apart from RSC Ordinance Order 45 r.5. 37 Biba was not a case of enforcement of an undertaking against the person who had given it, the present case is not a case of enforcement against a director of a company which has given an undertaking, my view of the effect of Pt.42 is based on the terms of Pt.42 itself and the limitation evident from its terms that it applies only to enforcement by committal and sequestration, and only to enforcement of judgments and orders, and has nothing to say about the enforcement of undertakings. In my opinion Biba is not a relevant authority. 38 The plaintiff's counsel submitted that contempt proceedings are a drastic remedy and should not be readily resorted to as a means of enforcing court orders. He did not however suggest any other means of enforcing the undertaking or, as it could no longer literally be enforced, the paintings having been removed, of bringing about the result which accepting the undertaking was intended to achieve. Counsel also submitted that it was necessary to show that the plaintiff had had proper notice of the undertaking; I have stated my views on this subject, and for the reasons which I have given, service of a copy of the order, or a notice for compliance, was not required. 39 In reported cases judgments repeatedly refer to the fact that the party giving an undertaking was personally present in court when it was given; that no doubt is a relevant fact when it occurs, as it very often does, but there is no suggestion in any judgment that it is essential for enforcement that the party should have been present in court when the undertaking was given. It was distinctly held in D v. A & Co. [1900] 1 Ch 484 by Cozens-Hardy J. that no notice at all was required where a party had given an undertaking, citing Callow v. Young; see 487. Cozens-Hardy J said: Having regard to the settled practice at giving an undertaking in the terms of a notice of motion, it would be highly dangerous to hold that a defendant who had given an undertaking could disregard it unless and until the order was served.

At 488, his Lordship referred, among other things to Order XLII r.7, which provided in effect that a judgment, whether its form be negative or affirmative, might be enforced either by attachment or by committal; and said at 488: In the present case, however, Order XLII., r.7 does not apply, for there was no judgment or order upon the defendants to deposit documents. Their liability rested upon their undertaking. It is somewhat strange that there is no express authority as to what is the proper mode of enforcing an undertaking as distinct from an order. His Lordship went on to refer to Callow v. Young and to a difficulty which arose in that case out of the (now obsolete) distinction between committal and attachment. In the context of a long-existing and well-established difference of approach and procedure, it is not difficult to recognise that the omission of reference to undertakings in Pt.XLII was intended, and that enforcement of undertakings was left outside the requirement of formal notice before enforcement. 40 A clear and recent statement of the practice in England, showing that proof of service of a copy of an undertaking, or notice for compliance, is not required was made in Hussain v. Hussain [1986] Fam 154 at 140 by Donaldson MR with the concurrence of Neill and Ralph Gibson LJJ. His Lordship said: If, however, the respondent to the motion to commit can satisfy the court that he was unaware of the terms of an undertaking given on his behalf, but not by him personally, this may well, depending on the circumstances, provide powerful mitigation

and went on to say that service of the order was desirable. See too Douglas v. Douglas (1976) 10 ALR 285 at 287 (Dunn J, referring to Taylor v. Whelan). 41 Plaintiff's counsel contended that the charge is flawed and embarrassing in that neither the original order nor the charge makes it clear what is the identity of the paintings alleged to be located at the premises. Facts in evidence show that the plaintiff was in control of the premises, and her primary interlocutory claim, which succeeded, was that the defendant should be restrained from approaching the premises. She gave an undertaking which established by its own terms that there were paintings in the property. The defendant, under restraint from approaching the premises and acting only through Ms Stacey Holland, has given evidence of what was observable on 27 and 29 August, and the plaintiff's solicitor stated, on 30 August, that paintings had been removed, so establishing that paintings had been there and that their removal called for explanation. In these circumstances the form of the charge cannot have caused the plaintiff any embarrassment. 42 For similar reasons I reject the contention that it was for the defendant to establish what paintings if any were located on the premises when the undertaking was given, and what paintings in particular were removed on or after 29 August. It is on the evidence altogether clear that there were paintings on the premises when the undertaking was given, that they were the subject of the plaintiff's undertaking, and that they were removed. 43 The plaintiff's counsel also contended that there was an agreement in writing between the parties for the removal of the paintings. In support of this he referred to the contract for sale of land, which had been exchanged before the undertakings were given and provided for vacant possession on settlement, and also the arrangements which brought forward the date of vacant possession and settlement to 2 September. Counsel also referred to execution by the defendant of the transfer of the land; the transfer was sent to him on 29 August 2002 and it must be taken that it was executed by him before settlement on 2 September. It is clear enough and I accept that at least by 29 August, and probably earlier, the defendant or Stacey Holland on his behalf consented to the advancement for the time for completion to 2 September, and that it followed that it must have been known that vacant possession would be required on that date. From this too, it is plain that it must have been known that it was necessary for possessions to be removed from the premises. Counsel also pointed to a message relating to the attendance of the defendant's removalists and to the purchasers' bringing furniture onto the premises, which was expected to take place on 29 August. Counsel referred to several other messages which show with fair certainty that the arrangements for settlement to be brought forward to 2 September came to the attention of the defendant or to someone to whom he had left the carriage of this part of the business. 44 There is no indication in any of this material that the defendant either consented to the removal of the paintings, or was asked to consent to the removal of the paintings; or that the plaintiff or her solicitors in any manner raised the question of consent or set about obtaining it. The terms of the correspondence in evidence show no sign of any such request. It was the defendant's evidence that he was awaiting to know what was to happen with the paintings, and further it was only after Ms Stacey Holland had inspected the premises and reported that paintings were not there that he raised the question of the paintings. It must always be borne in mind that the defendant was under restraint and could not approach the house. Events at the house were not in any way under his control and were wholly under the control of the plaintiff. The defendant's not taking any initiatives with respect to the paintings is, in my view, referrable to his lack of control over the paintings, the house and the movement of property there, and also referrable to confidence that there would be compliance with the plaintiff's undertaking and that his interest in where the paintings were would be protected in that way. There is no room for seeing any implied agreement on his part to removal of the paintings to the plaintiff's new dwelling or to any other place. The facts are fully consistent with his reliance on performance of the undertaking to protect his interest. The facts do not show that he was not concerned with whether or not the undertaking was adhered to, or that he was not concerned with what happened to the paintings. 45 After I prepared these reasons I was informed that the parties were negotiating and hoped to settle their dispute overall; and some weeks later they did settle their dispute and final orders were made disposing of the proceedings by consent on 15 May 2003. When asking for consent orders counsel for the defendant told me that the defendant did not wish to take the Notice of Motion for Contempt any further, but recognised that the disposition of the Notice of Motion was in the control of the Court. The contempt proceedings were, from the point of the view of the parties, ancillary to the conduct of the proceedings and the attainment of justice in the principal claims for relief; enforcing the undertakings was means, although not direct means, of establishing which paintings were in the house, what the plaintiff had done with them and where they were, whether they were being properly looked after so that the court's eventual order would be effective, or whether they were being disposed of, sold off or hidden. By not complying with the undertaking the plaintiff brought these possibilities under consideration. It was very important in the interests of both parties that the paintings should be inspected and catalogued by someone with sufficient expertise to recognise what they were and give an opinion as to their value. Arrangements to have this done went astray in some personal conflict and the interests of both parties required that the exercise of cataloguing and valuation take place. If the paintings could not be located, this could not happen. 46 It is clear on the findings which I have made that the plaintiff removed the paintings in contempt of court, and this was very inflammatory and was likely to obstruct the court in seeking to do justice. It was particularly inflammatory because control was placed on the plaintiff's dealing with the properties at the same time as severe restrictions were placed on the defendant; the plaintiff, having had restrictions imposed on the defendant on her application, was obliged to comply meticulously with the restrictions accepted by her. As the litigation has been settled overall and there is no longer any need for proceedings relating to contempt in aid of the attainment of justice in this case, my remaining concern is with the affront of the Court's authority which the plaintiff has offered by not complying with her own undertakings. In my view this will be dealt with adequately by publishing these reasons, including the finding that she has been guilty of contempt of court, so that it will be publicly known that behaviour of this kind incurs the Court's displeasure. In litigation about personal relationships in which litigants feel strong emotional involvement they are just as much obliged to conform with the law and with orders of the Court and undertakings to the Court, as they are in any other case. 47 The plaintiff is not the only person who has incurred my displeasure. The plaintiff's solicitors used unduly acrimonious and combative expressions in correspondence directed to the defendant's solicitors, this kind of language impedes communication whereas it should be open, and the unsatisfactory nature of their conduct is made worse because they had their facts wrong on the important matter of whether their client had actually given an undertaking. The plaintiff's counsel Mr Wheelhouse presented arguments to me which were directed to showing that the plaintiff was not bound by undertakings which Mr Wheelhouse himself had written out and communicated to the Court. The fact that Mr Wheelhouse's own conduct was under discussion imposed inappropriate embarrassing limitations on discussion of the circumstances in which the undertaking was given. When placed in a situation where his instructions required him to present a case relating in part to his own conduct Mr Wheelhouse should have withdrawn so that the plaintiff could be represented by other counsel. 48 Order: Upon the defendant's Notice of Motion dated 22 October 2002 and Statement of Charge, find that the plaintiff is guilty of Contempt of Court as charged.

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Judgment (15 paragraphs)

Cases Cited (5)

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