Camm v ASI Development Company P/L

SUPREME COURT OF QUEENSLAND

CITATION: Camm v ASI Development Company P/L [2007] QCA 317

PARTIES: CAMM, Gary Stirling (defendant/appellant) v ASI DEVELOPMENT CO PTY LTD ACN 096 527 123 (plaintiff/respondent)

FILE NO/S: Appeal No 8134 of 2007 / DC No 533 of 2001

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Maroochydore

DELIVERED EX TEMPORE ON: 1 October 2007

DELIVERED AT: Brisbane

HEARING DATE: 1 October 2007

JUDGES: Keane and Muir JJA and Douglas J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Appeal allowed / 2. Orders of 24 August 2007 set aside

CATCHWORDS: PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – IN GENERAL – where appellant failed to comply with consent order for delivery up of possession – where appellant sentenced to six months imprisonment for contempt – whether failure to comply with order was wilful and deliberate – whether punishment excessive – whether learned primary judge erred in excusing non-compliance with r 665(3) of the Uniform Civil Procedure Rules 1999 (Qld) / Uniform Civil Procedure Rules 1999 (Qld), r 665(3), r 367, r 371, r 372 / Chiltern District Council v Keane [1985] 1 WLR 481, applied / Colefax v Colefax [1993] St R Qd 222, applied / Costello v Courtney [2001] 1 Qd R 481, applied / Re Intex Consultants Pty Ltd [1986] 2 Qd R 99, distinguished

COUNSEL: The appellant appeared on his own behalf / A J Kimmins for the respondent

SOLICITORS: The appellant appeared on his own behalf / Carl Blumen for the respondent

KEANE JA: The appellant, Mr Camm, was the defendant in an action commenced by the respondent ("ASI") in December 2001. In that action, ASI sought orders for specific performance of a contract whereby Mr Camm agreed to transfer a motorised barge known as the "M V Edna" to ASI in exchange for an allotment of shares in ASI.

On 3 October 2006, the day appointed for the trial of the action, Mr Camm consented to an order of the court that he would,

"...forthwith take any and all such steps to give effect to declarations [that ASI as the legal and beneficial owner of the barge M.V.Edna] including transfer to [ASI] of title...in the...M.V. Edna and delivery up of possession of the M.V. Edna to [ASI] or its solicitor."

Mr Camm had previously had legal representation during the action but was unrepresented on 3 October 2006. On that day he told the learned trial judge that the "M V Edna" was to be found at a location in the town reach of the Burnett River, a couple of miles downstream from the traffic bridge which crosses the river.

Mr Camm did not comply with the terms of the order to which he consented, and ASI's representatives could not locate the vessel at the place identified by Mr Camm.

After correspondence in which ASI's solicitors threatened Mr Camm with proceedings for contempt of court, ASI applied to the District Court at Maroochydore to have Mr Camm dealt with for contempt of court. It is convenient to refer to some of that correspondence here. On 9 October 2006, the plaintiff's solicitor wrote to Mr Camm asserting that he was in contempt of court and that appropriate orders including a custodial sentence would be sought. On 9 November 2006, the plaintiff's solicitor wrote again to Mr Camm stating that, to that point, he had failed to comply with the order made on 3 October 2006. The letter continued:

"On my client's behalf, you are hereby requested to deliver the barge to the same location at Bundaberg where you stated to the Court on 3rd October 2006 that the barge was located. My instructions are to file an application in the Court for appropriate orders unless, by Tuesday 14 November 2006, all of the following requirements are satisfied in full:

1.The barge is located at the same location at Bundaberg where you stated to the Court on 3rd October 2006 that the barge was located.

2.Advice in writing is received from you that the barge is located at that place at Bundaberg.

As you are already and continue being in contempt of the Court Order, an order for custodial sentence will be sought."

Mr Camm responded on 20 November 2006. He acknowledged receipt of the letter of 9 November 2006, and went on to say:

"I am unable to deliver the barge to Bundaberg. When I nominated that location it was based on a question without notice that placed me in a difficult position wherein our whole agreement may have been stalled. The location I nominated was where I had been advised it had stopped in transit the first time it went to Percy Island. In fact I have not physically seen the vessel since we moved it out of Sandgate slipway under strong requests from Brisbane City Council. I gave permission for it to be taken back to Percy Island by M Cotter. So you do not need me to fill out the forms and you should make your own arrangements to take delivery from Percy Island."

On 1 December 2006 the director of the plaintiff flew to Middle Percy Island to look for the "M V Edna". It was not there.

On 24 August 2007, Mr Camm was unrepresented. He told the learned primary Judge from the Bar table that he did not know where the vessel was. He acknowledged that he may have been wrong to tell the Court on 3 October 2006 that the vessel was in the Burnett River. Not surprisingly perhaps, his Honour concluded:

"I am quite satisfied he has made no attempt at all to comply with the Order of the Court to deliver the barge to the plaintiff. To the contrary, he has deliberately gone out of his way to avoid the plaintiff acquiring the barge."

Mr Camm was found guilty of contempt of Court by reason of his failure to deliver up possession of the "M V Edna". He was sentenced to six months imprisonment.

The learned primary judge adverted to r 665(3) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"). That rule provides:

"An order requiring a person to perform an act must have written on it or attached to it the following statement or a statement to the same effect - If you [state name of person required to perform act] do not obey this order within the time specified, you will be liable to court proceedings to compel you to obey it and punishment for contempt."

The Order of 3 October 2006 served on Mr Camm did not contain, or have attached to it, the statement required by r 665(3) of the UCPR. The learned primary judge, notwithstanding this failure to comply with the rules, proceeded to punish Mr Camm for his disobedience to the orders of 3 October 2006. In this regard, his Honour relied, inter alia, on r 371 of the UCPR. His Honour said:

"Counsel for the applicant/plaintiff has referred me to Rule 367(1) and (2) and Rule 371 of the Uniform Civil Procedure Rules, and has submitted to me that an order holding the defendant in contempt may be made even though Rule 665(3) was not complied with. Further in that regard, he has referred me to a decision of Justice Wilson in Costello v Courtney [2000] QSC 67, particularly at paragraph 12 where her Honour said,

'The Court's broad powers to make orders inconsistent with the procedural Rules and/or in the face of non-compliance with the Rules, (Rule 367 and 371 read with Rule 5) may allow it to hear a contempt application notwithstanding the absence of such penal notice (Jully v Hull, English CA 21 January 2000; Davey International Ltd v Tazzyman [1997] 1 WLR 1256. However this is not an appropriate case in which to do so. In this case, as I have already indicated, despite the lack of such a notice on the order by the 9th of October 2006, Mr Camm must be taken to have been aware, if he was not prior to that, of the consequences which may follow continual disobedience of the order. That disobedience from that time on has continued.'"

The learned primary Judge concluded:

"As I have indicated already, Mr Camm has not only failed to deliver the vessel as he is required to do by the order, but has continued to put obstacles in the way of locating the vessel. He has, I consider deliberately, avoided the effect of the orders that the Court made for delivery up of the vessel.

Today when I asked him what he wanted to say regarding submissions made by the plaintiff for penalty, he told me that he was without funds and could not deliver the vessel. He also said, as he said earlier today, the vessel was old and decrepit.

But as I have already observed, he has deliberately withheld or obscured the location of his vessel so that the plaintiffs may not have the benefit of the orders that were made.

He is an undischarged bankrupt.

The contempt in the circumstances is one deserving of imprisonment. Mr Camm will be imprisoned for six months."

It should be noted that, when Mr Camm sought to address his Honour in response to ASI's application by stating some facts about the matter, Counsel for ASI objected to Mr Camm making statements of fact from the Bar table. This objection was, it would seem, upheld but the learned primary Judge said that he would, "allow Mr Camm to say what he wants to say."

Mr Camm was not advised that if he wished to give evidence about these serious matters it would be necessary for that evidence to be given in proper form. It is difficult to see on what basis the learned primary judge received Mr Camm's statements from the Bar table.

I turn then to consider the arguments advanced on the appeal. In this Court, Mr Camm was again unrepresented. In the notice of appeal filed on his behalf by the lawyers who previously represented him, the first ground of appeal was that, as at 3 October 2006, Mr Camm was an undischarged bankrupt, having been declared bankrupt on 19 November 2003. Accordingly, so it was contended, title to the "M V Edna" vested in Mr Camm's trustee in bankruptcy pursuant to the operation of the provisions of the Bankruptcy Act 1966 (Cth) and so Mr Camm simply was not in a position to comply with the order of 3 October 2006.

This ground of appeal was not argued in the written outline of submissions in support of his appeal prepared by counsel on Mr Camm's behalf before Mr Camm's legal representatives ceased to act for him. This ground of appeal was, in truth, insupportable. There is no reason why the usual rule affirmed in Tailby v Official Receiver (1888) 13 App Cas 523 that the equitable rights, in respect of an asset enjoyed by a purchaser of the asset under a specifically enforceable contract made before the commencement of bankruptcy survive the bankruptcy, does not apply in this case.

The first issue agitated in the written outline of submission prepared on Mr Camm's behalf is that the learned primary judge erred in dispensing with compliance with r 665(3) of the UCPR. Secondly, it is argued that the learned primary judge could not have been satisfied beyond reasonable doubt that Mr Camm's failure to deliver up the "M V Edna" was wilful and deliberate. The third issue raised in the written outline was that the punishment imposed on Mr Camm was excessive having regard to his poor health and indigent circumstances. It is convenient to deal with the second and third issues before returning to consider the first issue.

As to the second issue, it was not, in my opinion, necessary in order to establish a contempt of court on Mr Camm's part punishable by imprisonment that his disobedience to the order of 3 October 2006 was wilful and deliberate, see Lade & Co P/L & Ors v Black [2006] QCA 294. But if proof of wilful or deliberate disobedience were essential, it was amply supplied in this case by Mr Camm's obfuscation as to the whereabouts of the vessel.

As to the third issue, the focus upon the severity of the penalty and Mr Camm's poor health and indigent circumstances fails to recognise that the purpose of punishment for contempt of court is to vindicate the authority of the court, and to protect the interests of the party who has the benefit of an order of the court by coercing the recalcitrant party into performing his or her obligations. In this case, the vindication of the authority of the court and the protection of ASI's interests converge, in that the only order likely to impose an effective sanction for Mr Camm's deliberate defiance of the authority of the court and to coerce him into divulging the true whereabouts of the vessel is an order for his imprisonment; cf Formal Wear Express Franchising P/L v Roach [2004] QCA 339.

Rule 931(2) of the UCPR contemplates that the court may discharge a contemnor before the end of the term of imprisonment. A contemnor could ordinarily expect to be released upon his or her compliance with the original order; cf Re Freston (1883) 11 QBD 545 at 557. As a result, Mr Camm, to a large extent at least, "carries the keys of his prison in his own pocket", see Re Nevitt (1902) 117 F 448 at 461, in that he could purge his contempt by making a frank, full and reliable account of the whereabouts of the vessel. To the extent that Mr Camm's fate is in his own hands, the submission that the punishment imposed on him is excessive is not compelling.

I now return to the first point raised in the written outline which was prepared on Mr Camm's behalf. In that regard, the rule on which the learned primary judge relied to excuse non-compliance with r 665(3) was evidently r 371(2) of the UCPR. That rule is in the following terms:

"Subject to rules 372 and 373, if there has been a failure to comply with these rules, the court may -

(a)set aside all or part of the proceeding; or ...

(f)make such other order with the proceeding generally as the court considers appropriate."

The power to excuse non-compliance in r 371(2) is itself expressed to be subject to r 372 and r 373. In this regard, r 372 provides: "An application for an order under rule 371 must set out details of the failure to comply with these rules."

It is to be noted that the application made on behalf of ASI to have Mr Camm dealt with for contempt did not comply with the requirements of r 372, in that there was no mention at all of the details of the failure to comply with r 665(3) or even that an application to excuse non-compliance with that rule was being made by ASI.

It is well established that in cases where the liberty of the subject is at stake, the court should insist upon strict compliance with the prescribed procedure whereby that liberty may be curtailed; see Colefax v Colefax [1933] St R Qd 222 at 224; Chilton District Council v Keane [1985] 1 WLR 481; Costello v Courtney [2001] 1 Qd R 481. It would appear that the learned primary judge was persuaded to excuse non-compliance with rule 665(3) by reason of Mr Camm's clear disobedience of the order of 3 October 2006 and the circumstance that he was given effective notice of the peril to which this disobedience exposed him in the correspondence from ASI's solicitor.

The correspondence from ASI's solicitor was not precisely to the same effect as the statement required by r 665(3). The rule requires explicit notification in the order that disobedience will expose the recipient of the order to proceedings for contempt. The purpose of r 665(3) is not merely to provide the party who has the benefit of the order with a basis for inferring deliberate disobedience from non-compliance, though it may incidentally have that effect. The rule is also apt to ensure that the recipient of the order is given fair notice that non-compliance may give rise to proceedings for contempt so that the recipient may so conduct himself or herself as to avoid or minimise that peril. ASI's solicitor's correspondence conveyed the argumentative assertion that Mr Camm was already in contempt of court by reason of his earlier disobedience.

It seems to me that the correspondence from ASI's solicitor cannot be regarded as notice equivalent to that required by r 665(3) of the UCPR; cf Clifford v Middleton [1974] VR 737 at 741.

Rule 665(3) of the UCPR contemplates a neutral statement made with the authority of the court via the rules about what may happen in the future if the order of the court is not obeyed. It does not contemplate that the person against whom the order is directed should be told that he or she is already in contempt of court in an argumentative and partisan way by the solicitor for the other side. A recipient of such a notice might well react to the assertion that he or she is already liable to be punished for contempt of court, and so might as well be hung for a sheep as a lamb; see Miller v Eurovox Pty Ltd [2004] VSCA 211 at [29]. That is clearly neither the purpose of r 665(3), nor a desirable outcome.

It may also be observed that the learned judge did not advert at all to ASI's non-compliance with r 372 to which his power to excuse non-compliance with other provisions of the UCPR was subject. The absence of such notice was apt to disadvantage an unrepresented layman such as Mr Camm. In this regard, the present case is distinguishable from Re Intex Consultants Pty Ltd [1986] 2 Qd R 99 where the respondent to proceedings for contempt had the benefit of legal representation.

Had there been explicit notice of the need to excuse ASI's non-compliance with r 665(3), Mr Camm may have been more focused on ASI's failure in that regard, and that focus may have been to his advantage so far as the outcome of the proceedings is concerned. He may have been encouraged to engage a lawyer to seek to exploit that advantage. It may be that, if Mr Camm had engaged a lawyer, a reasonable accommodation of the parties' interests could have been worked out. Mr Camm was not alerted by the learned primary judge to the need to put evidence before the court in proper form, and to his entitlement to cross-examine ASI's deponents. Mr Camm's position was one of significant disadvantage which may have been ameliorated had ASI's irregularities been made clear to him as they should have been. These are, of course, speculations about a hypothetical situation. The relevance of these speculations is that, because observance of the procedure prescribed for the pursuit of applications affecting the liberty of the subject is a matter strictissimi iuris, a court should not excuse non-compliance with the rules unless it can be satisfied that the person sought to be imprisoned has not been disadvantaged by the non-compliance. In this case, I am not satisfied that Mr Camm was in no way disadvantaged by ASI's failure to comply with the rules.

Because the irregularities in procedure to which I have referred were such that one cannot entirely exclude the possibility that Mr Camm may have obtained a better outcome in the result had the irregularities not occurred, I consider that the irregularities should not have been excused.

In these circumstances, I consider that the learned primary judge erred in excusing ASI's non-compliance with r 665(3) of the UCPR.

For this reason, and I would emphasise this reason alone, I would allow Mr Cam's appeal.

The orders of 24 August 2007 should be set aside.

In the circumstances, and subject to argument by the parties, I would make no order as to the costs of the appeal.

MUIR JA: I agree with the reasons of Justice Keane and with orders he proposes.

DOUGLAS J: I also agree with the reasons and orders proposed.

KEANE JA: Mr Kimmins, is there anything you wish to say?

MR KIMMINS: No, your Honour. So far as the question of costs, our submission is that it should be as your Honour's indicated.

KEANE JA: Mr Camm, is there anything further you wish to say?

APPELLANT: No, your Honour.

KEANE JA: All right. The orders of the Court will be as I have indicated.