1 ANDERSON J: This matter was begun by originating summons on 24 November 1995. It arises out of events in another action which was begun by generally endorsed writ on 30 December 1992 - CIV 2687 of 1992. It is convenient to refer to the latter as the main action. Mr Castledine is plaintiff in both proceedings.

2 The main action concerned subdivisional land in the suburb of Wilson. The land was comprised of two adjoining lots zoned residential, and which were ripe for subdivision. The endorsement of claim on the writ is in the following terms:

(a) Payment of $100,000.00 and a 1/6 share of profit from the sub-division of land known as Canning River Garden Parklands Estate pursuant to an oral agreement, evidenced in writing, between the Plaintiff and Kevin Pollock on behalf of Boronga Pty Ltd made in or about September 1988.

(b) An injunction pursuant to Section 1324 of the Corporations Law against Kevin Pollock and Pollock Nominees Pty Ltd restraining them from dealing with [the land] on the basis of a breach by Kevin Pollock, a director of Boronga Pty Ltd, of Section 232 of the Corporations Law, with which Pollock Nominees Pty Ltd was knowingly concerned, of the duty owed by Kevin Pollock to Boronga Pty Ltd not to exercise his powers as a director of Boronga Pty Ltd to render Boronga Pty Ltd incapable of paying the claim of the Plaintiff being an existing creditor of Boronga Pty Ltd."

3 The defendants in the main action were Boronga Pty Ltd, Pollock Nominees Pty Ltd, the Registrar of Titles and Mr Pollock.

4 At or about the time the action was commenced, the plaintiff's company, Castledine Holdings Pty Ltd, placed a caveat on the titles claiming a one-sixth interest in the land in virtue of the agreement referred to in the endorsement of claim. It would appear that at that stage the land was still comprised in its original certificates of title being certificate of title, volume 1600, folio 302 and certificate of title, volume 1600, folio 303.

5 On 15 December 1992 Castledine Holdings Pty Ltd received a 14-day notice from the Registrar of Titles pursuant to s 138 of the Transfer of Land Act. This notice notified Castledine Holdings Pty Ltd that a transfer of the land had been lodged whereby the land was to be transferred from Boronga Pty Ltd to Mr Pollock's other company, Pollock Nominees Pty Ltd (the second defendant), and that, unless, within 14 days from the date of the notice, he was directed by a court or a Judge not to do so, the Registrar would proceed with registration of the transfer. On 30 December 1992, the plaintiff made an urgent application to this Court for an interim injunction ex parte for an order prohibiting the Registrar from registering the transfer until 12 January 1993 and that order was granted by Nicholson J in chambers. Curiously, although it was Castledine Holdings Pty Ltd which was the caveator, the injunction application with respect to the caveat was made by Mr Castledine. The injunction proceedings were brought in the main action in which Mr Castledine was the only plaintiff and in which Castledine Holdings Pty Ltd was not a party. It is not clear why it is the plaintiff rather than Castledine Holdings Pty Ltd who was the applicant for this injunction. No doubt there is a simple explanation. The injunction was later extended for a short time but its further extension was then opposed by the defendants. On 13 January 1993, the matter came before Franklyn J in chambers and the injunction was dissolved by consent, on the first and second defendants (Boronga Pty Ltd and Pollock Nominees Pty Ltd) giving the following undertakings:

"1. The First Defendant will provide the Plaintiff forthwith with all material information relating to costs incurred by and other claims against the First Defendant including any claims by Custom Credit Corporation Ltd to the [land in question].

2. The Defendant [sic] will hold the net proceeds of sale of any land formerly comprised in Certificate of Title, Volume 1600 Folio 302 and Volume 1600 Folio 303 on trust for the First Defendant in a joint trust account held by Kott Gunning, solicitors and Summers Partners, solicitors. Funds standing to the credit of such trust account shall only be paid out upon the joint authority of the parties or by order of the court.

6 By 17 May 1995, no statement of claim had been filed in the main action. On that day, the plaintiff made an application for leave to file and serve a statement of claim out of time and for a transfer of the action to the District Court. Orders were made in those terms on 1 June 1995. The main action became District Court action CIV 1710 of 1995. The basis of the application to transfer the action to the District Court was of course that the total amount claimed was considered to be potentially less than the District Court's limit of jurisdiction of $250,000. On that same day, that is, 1 June 1995, a statement of claim was filed. In par 5 of the statement of claim, the agreement between the parties was pleaded as follows:

"5. By an agreement made partly orally and partly in writing in or about September 1988 it was agreed between the Plaintiff and the Fourth Defendant in his capacity as agent for the First Defendant that the Plaintiff, together with one Len Brush ('Brush') would subdivide the land and obtain the necessary approvals for the subdivision, in consideration whereof the First Defendant would pay to the Plaintiff and to Brush a fee of $100,000.00 each, together with a one sixth share in the profits made from the subdivision ('the agreement')."

7 Performance of the agreement by the plaintiff is pleaded in par 8 in the following terms:

"8. Pursuant to the agreement the Plaintiff worked to obtain, and on or about the 14th of June 1989 in fact obtained approval for the subdivision of the land, the said subdivision being known as Canning River Gardens Parklands Estate."

8 It is then pleaded that in breach of the agreement the first defendant, that is, Boronga Pty Ltd, "failed and/or refused to pay to the plaintiff a fee of $100,000 or any fee, and ... failed and/or refused to pay to the plaintiff the one-sixth share of the profits arising out of the subdivision of the land".

9 There is then a curious plea in par 10 which seems to be a plea of damages. It is in the following terms:

"10. As a result of the matters aforesaid the Plaintiff has suffered loss and damage.

(b) One sixth interest in the profits of the subdivision full particulars of which will be given prior to trial."

10 This plea reveals a lack of appreciation on the part of the pleader of the difference between a claim which arises under the terms of the contract and a claim which is made for damages for breach of the contract. In asserting an entitlement to be paid the fee of $100,000 and one-sixth of the profits, the pleader is asserting a claim under the terms of the contract, not a claim for damages. Nevertheless, the claim is expressed to be a claim for damages. The distinction between a claim for enforcement of the contract and a claim for damages for breach of contract is basic, and the failure to make that distinction in this pleading is a basic error. However, that is by the bye.

11 By November 1995, it appeared to the plaintiff that all of the subdivisional land had been sold off. The plaintiff had not received an account of the profits and had not received payment of the $100,000 alleged to be due under the contract sued upon.

12 On 24 November 1995, the plaintiff started these proceedings by issuing an originating summons against Boronga Pty Ltd and Pollock Nominees Pty Ltd for orders under O 55, which is the rule of court providing for punishment for contempt of court. The punishment sought in the originating summons was: "Orders for sequestration or fine or both pursuant to Order 55 rules 4 and 7 of the Rules of the Supreme Court against the first and second defendants". As explained in the affidavit in support of the application the basis of the application was an alleged failure on the part of the defendants to honour the undertakings given to the court on 13 January 1993 as regards the provision of information relating to the cost of the subdivision and dealing with the proceeds of sale.

13 The originating summons was listed for hearing before Scott J on 5 March 1996. When the matter was called on, counsel for the plaintiff, Mr Bates, informed his Honour that there was a dispute between the parties as to whether any profits had been made from the subdivision and there was some discussion about how the contempt proceedings should be resolved in light of that dispute. The following debate took place:

"BATES, MR: It would be my submission today that in view of the fact that there appears to be a dispute of fact on the affidavit evidence as to whether or not any profits were made, etcetera, it would be my application today that the matter be adjourned sine die and referred to a Master for an account to be taken.

BATES, MR: An account as to the financial implications of that development, your Honour.

SCOTT J: I think even that is too broad. See, the difficulty that the Master would have is working out the basis upon which the accounts would be prepared ...

BATES, MR: Yes, the problem that we have at the moment is that the only information we have got as to the alleged loss is that deposed to by - - -

BATES, MR: It would be my submission that the accounting that the Master could take would be all the costs associated with the subdivision.

SCOTT J: Presumably, you would say, it would be the income from the sale of the land?

SCOTT J: And deducted therefrom less expenses of the sale?

BATES, MR: The expenses of the sale, yes, your Honour."

14 There was then some discussion about how the amounts owing to financiers should be brought to account. Scott J indicated that he would be prepared to make an order for an account to be taken and he invited the parties to prepare a minute of orders, which the parties agreed to do. In due course, a minute was presented to his Honour and orders were made in terms of the minute. The orders were that the Registrar in chambers take the following accounts:

"(a) [An account as to] [t]he total income derived by the Second Defendant from the sale of lots comprised in [the subdivisional land];

(i) In preparing the Land for subdivision by the construction of earthworks and associated matters;

(ii) In preparing such documentation and doing all things necessary to secure all necessary approvals for the subdivision of the Land;

(c) The costs incurred by the Second Defendant associated with the raising of finance for the subdivision from Custom Credit Corporation Limited including, without limiting the generality of the foregoing, the interest payable on such finance."

16 The taking of accounts proceeded before Registrar Powell and on 28 July 1999, Registrar Powell made a certificate in the following terms:

"PURSUANT to the Order of the Honourable Justice Scott made herein on 5 March 1996 I DO FIND AND CERTIFY THAT:

(a) The total income derived by the Second Defendant from the sale of lots comprised in [the subdivisional land] is $7,298,353.92 as set out in a list of income attached hereto.

(i) in preparing the Land for subdivision by the construction of earthworks and associated matters;

(ii) in preparing such documentation and doing all things necessary to secure all necessary approvals for the subdivision of the Land; and

(iii) associated with the raising of finance for the subdivision from Custom Credit Corporation Ltd including, without limiting the generality of the foregoing, the interest payable on such finance

is $1,168,381.13 as set out in the list of expenses attached hereto."

17 On learning of the Registrar's certificate, the plaintiff sought to have the main action brought back from the District Court to the Supreme Court and that order was made on 1 November 1999. The main action, on its return home, became CIV 2473 of 1999.

18 On 20 November 1999, a defence was filed in the main action in which Mr Pollock and his two companies admitted that there was an agreement with the plaintiff, but said that the agreement related only to the raising of finance for the subdivision. The defendants pleaded that the first defendant would pay to the plaintiff $100,000 and a one-sixth share in the profits of the subdivision only if the plaintiff succeeded in raising finance for the subdivision. The defendants pleaded that the plaintiff was not successful in raising finance and therefore never became entitled to any remuneration nor to any interest in the project.

19 The main action has hardly proceeded since then. In July of this year there was an application by the plaintiff for summary judgment and for consolidation of the main action with these proceedings. Those applications were dismissed. There was, however, an application in these proceedings for an order that:

"Kevin Trevor Pollock be joined as a party to these proceedings in that he aided and abetted the contempt of the first and second defendants."

20 Essentially, the allegation of aiding and abetting rested upon the premise that Boronga Pty Ltd and Pollock Nominees Pty Ltd were Mr Pollock's companies in the sense that he was the mind and will of those companies.

21 This is not the occasion to consider the appropriateness in contempt cases of joining a party into a charge of contempt by amending in this way. I should say however that I have grave reservations about it, because of the nature of contempt proceedings which I will say more about in a moment.

22 This matter, that is, the originating summons, came before me in chambers on 15 August last. I was informed by counsel that there were two applications which were to be dealt with. The first application was said to be a chamber summons dated 4 August 2000 entitled in the originating summons proceedings and called "Chamber Summons Requiring Defendants to Show Cause Pursuant to Order 55, Rule 4". So, in proceedings commenced by originating summons for orders calling on the defendants to show cause why they should not be dealt with for contempt (that is, these very proceedings), the plaintiff had taken out a chamber summons calling upon the defendants to show cause why they should not be dealt with for the very same contempt. In my opinion, that is an abuse of the processes of the court and the chamber summons should be permanently stayed.

23 Turning to the originating summons itself, I think that this, too, was the wrong procedure in this kind of case. The alleged contempt consisted of a breach of an undertaking to the court in an action which was on foot. In such a case application for punishment for contempt must be made by motion or summons in the proceedings with reference to which the contempt is alleged to have been committed: Order 55, r 4 and r 5. This is not a mere technicality. It will often be of the utmost importance that the contempt proceeding proceed within the proceeding with reference to which the contempt is alleged to have been committed, where the contempt is a breach of an order or of an undertaking given in those proceedings. This case provides a good illustration of the practical reasons for the rule. Because separate proceedings were commenced by originating summons, the contempt proceedings were separated from the main action. This has led to the highly inconvenient situation that the account which was ordered to be taken relating to the subject-matter of the main action has been taken and the certificate given in a collateral proceeding. Questions arise as to what use, if any, can be made in the main action of the account taken in the originating summons proceedings. It has also led to the plaintiff coming unstuck with respect to the chamber summons of 4 August 2000, which I have held to be an abuse of process. That summons should have been issued in the main action and, if it had been, it might have survived.

24 Turning now to the form of the originating summons of 24 November 1995 by which these contempt proceedings were commenced and with which I am now dealing, that summons is, in my opinion, seriously defective as to its content. It is here convenient to state some general propositions. Whether a contempt is a civil or criminal contempt, because the usual outcome of successful proceedings is punishment, the proceedings are criminal in nature: Hinch v The Attorney-General for the State of Victoria [1987] HCA 56; (1987) 164 CLR 15 per Deane J at 49; Witham v Holloway (1995) 183 CLR 525. Therefore, all charges of contempt, whether civil or criminal, must be proved beyond reasonable doubt: Witham v Holloway (supra) at 534. Furthermore, because the contemnor's liability is at stake, any notice of motion or summons charging a contempt must contain all necessary particulars in relation to the substance of the allegation. The purpose of O 55 r 5 which provides that the notice of motion or summons must specify the contempt of which the contemnor is alleged to be guilty is to give the alleged contemnor the "fullest notice of the conduct that is alleged against him ... ": Australasian Meat Industry Employees' Union & Ors v Mudginberri Station Proprietary Limited [1986] HCA 46; (1986) 161 CLR 98 at 116. In Carew-Reid & Ors v Carew Corporation Pty Ltd, unreported; FCt SCt of WA; Library No 930254; 23 April 1993 Malcolm CJ said at 6:

"In my opinion, the effect of O55 r5 is that the notice of motion or summons, as the case may be, must contain all necessary particulars in relation to the substance of the allegation within the four corners of the document: see Chilstern District Council v Keen (1985) 1 WLR 619 ...

In Channel Ltd v FGM Cosmetics (1981) FSR 471 at 472 Whitford J said:

'The notice of motion for committal was bad because it failed on its face to specify the precise breaches of the undertaking of which the plaintiffs complain and it was not sufficient that these breaches were made plain in the evidence served in this and the 1980 action. Committal for contempt is a serious matter and alleged contemnors must be afforded full knowledge of the allegations they have to face'.

... In my opinion, it is quite clear from the authorities that any deficiency in the particulars going to the substance of the charge of contempt cannot be made up by resort to affidavit evidence."

25 In the case now under consideration by me, the originating summons charging the contempt contains no particulars whatever. There is nothing on the face of the summons which identifies the undertaking or specifies the breaches of it, even in general terms, let alone with the precision which is required.

26 In the hearing before me, the plaintiff sought leave to amend the originating summons to cure this basic defect. It is clear, however, that leave to amend a charge of contempt will not be granted if the original charge is seriously defective and the amendments which are sought are substantial: Carew-Reid & Ors v Carew Corporation Pty Ltd (supra) at 15. Where the original pleading of contempt is completely devoid of particulars and is on that account substantially defective, it is not a proper exercise of discretion to allow the person bringing the charge to cure that basic deficiency by amendment. This is all the more so where the summons has stood unamended for more than four and a half years, during which very substantial proceedings have taken place, including the taking of accounts. Another reason why there should not be an exercise of discretion in favour of the plaintiff in this case is that from their very inception the proceedings were in contravention of the rule that the motion or summons for contempt should be brought within the proceedings in which the contempt is alleged to have occurred.

27 It was for these reasons that I made an order on 15 August dismissing the originating summons.