The plaintiff filed a chambers summons on 29 July 2025 seeking a number of orders arising out of the defendant's failure to comply with orders of the court made 11 September 2024. By a further amended chambers summons filed 3 September 2025 (the summons),[1] the plaintiff now applies for, amongst other things, a declaration that the defendant is in contempt for his failure to comply with the September 2024 orders.
The defendant has not taken any part in the proceedings. The present application is somewhat unusual in that orders have been made for substituted service of both the September 2024 orders and the present summons.
The defendant was called outside of court today. He again failed to appear.
For the reasons which follow, I am satisfied that there has been adequate service of both the September 2024 orders and the summons, although it is necessary that I abridge time for service of the summons, for reasons which I will come to later in these reasons.
Further, I am satisfied beyond reasonable doubt that the defendant has failed to comply with the September 2024 orders, and has therefore committed a contempt of this court.
The plaintiff is a beneficiary of the residuary estate of her late father, Robert Wilfred Holt. The defendant is her brother.
Probate of the late Mr Holt's will was granted to the defendant by this court on 9 January 2023.
Prior to the institution of these proceedings, the defendant adopted the position in correspondence with the plaintiff's then solicitors that the plaintiff had 'forfeited her birthright' by changing her name, and refused to accept that the plaintiff was a beneficiary of the estate. He has not made any distribution from the estate to the plaintiff, although he has apparently made a distribution to the other residuary beneficiary, who is the sister of the plaintiff and defendant.
For the reasons I published on 10 September 2024, on 11 September 2024 I made orders declaring the plaintiff to be one and the same person as the Jennifer Alexander named in the late Mr Holt's will, requiring the defendant to provide a number of accounts to the plaintiff in relation to the estate, and to produce the vouchers, books of account and other papers in relation to each of those accounts to the plaintiff.
I also ordered that there be substituted service of those orders by sending a sealed copy to a specified email address, sending a sealed copy by multi‑media message to a mobile telephone number, and causing a sealed copy to be sent by pre‑paid post to 109 Giles Avenue, Padbury, Western Australia, under a covering letter addressed to the defendant's partner, Jodie Louise Holt (nee Jackson, and to whom I refer to as Jodie Holt throughout these reasons), referring to these proceedings and the September 2024 orders, informing her that she should bring the documents to the attention of the defendant.
The order for substituted service on 11 September 2024 was made on the basis that there had previously been repeated attempts to effect personal service of documents filed in the proceedings upon the defendant, the court had previously ordered that there be substituted service of the originating process and supporting affidavit upon the defendant and I considered that service in accordance with that order would bring the September 2024 orders to the defendant's attention.
Although the summons is somewhat unusual in form, it states in [2](3) that the plaintiff seeks an order for the committal of the defendant 'per O 55 r 2, r 3 and r 4' of the Rules of the Supreme Court 1971 (WA) and it is clear from [2](1) and [2](2) of the summons that the grounds for the alleged contempt are the defendant's failure to comply with the court's September 2024 orders, despite having been served with those orders by way of substituted service.
The plaintiff sought an order for substituted service of the summons on 5 September 2025. On that occasion, I declined to permit that be done for two reasons.
First, I considered on the state of the evidence at that time that it was possible for the plaintiff to personally serve the defendant with the application.
Secondly, an application for committal for contempt should ordinarily be served personally.
Order 55 r 1 defines a 'contemnor' as a person guilty or alleged to be guilty of contempt of court.
Order 55 r 4(2) provides that an application for punishment for contempt of court consisting of disobedience to orders of the court made by a judge may be made by summons to a judge in chambers. By O 55 r 5(1) the summons must specify the contempt of which the contemnor is alleged to be guilty.
Order 55 r 5(2) requires that the summons and a copy of the affidavit in support of the application must be served personally on the contemnor unless the court orders otherwise. Although the requirement for personal service is ordinarily strictly enforced, substituted service may be ordered in an appropriate case: Doyle v The Commonwealth (1985) 156 CLR 510, 517.
Notwithstanding the general rule that an application for contempt should be served personally, on 5 November 2025 I ordered that there be substituted service of the summons and my orders of that date by sending a sealed copy to a specified email address, sending a sealed copy by multi‑media message to the defendant's mobile telephone number, and causing a sealed copy to be sent by pre‑paid post to as 109 Giles Avenue, Padbury, Western Australia under cover of a letter addressed to the defendant.
My reasons for doing so were as follows.
The grant of probate made in favour of the defendant on 9 January 2023 recorded the defendant's address as 109 Giles Avenue, Padbury, Western Australia, from which I inferred that the defendant informed the court in late 2022 or early 2023 that was his residential address at the time of his application for the grant.
Prior to the institution of these proceedings, the defendant engaged in email correspondence with the plaintiff's former solicitors, Payne & Co, using a particular email address which incorporated the term 'blackrat'.
The plaintiff's evidence is that she has communicated with the defendant in the past by means of the 'blackrat' email address and a specified mobile telephone number. The orders for substituted service made by the court in the proceedings to date, including my orders of 5 November 2025, have stated that service may be effected by sending documents to the 'blackrat' email address and that telephone number.
In his affidavit sworn 6 July 2023 filed in these proceedings, Russell Kenton Barrett, a process server, deposed that on 5 July 2023:
[2]
(a) he attended at 109 Giles Avenue, Padbury; and
(b) a gold Landrover 4WD with the private registration number plate 'BLACKRAT' was parked in the driveway of that property.
[3]
I infer from the facts that the defendant had previously informed the court that his residential address was 109 Giles Avenue, Padbury and the similarity between the personalised number plate and the defendant's email address that the Landrover is in the defendant's possession and that he was resident at that address as at 5 July 2023.
The evidence of Jemin Jo, a solicitor acting for the plaintiff from time to time, by way of affidavit sworn 9 November 2023 was that he believed, based on reports from AAC Process Servers attached to his affidavit, that the defendant was resident at 109 Giles Avenue, Padbury and was 'evasive of being personally served'.
The reports to which Mr Jo referred recorded that an agent of the process server had spoken to Jodie Holt (then Jackson) at 109 Giles Avenue on 2 September 2023 and had been told that 'Robert was just a friend' who had left approximately six months ago, and on 13 October 2023 was told by Jodie Holt (then Jackson) that Robert did not live at the property.
Jodie Holt is further recorded in the AAC Process Servers' reports as having told the agent on each occasion not to return to the property.
In her affidavit sworn 22 March 2024, the plaintiff identified copies of certain Facebook posts as having been published by the defendant from photographs of him and Jodie Holt included in those posts, and the fact that the date of birth of the owner of the Facebook account was the same as that of the defendant.
The plaintiff similarly identified copies of Facebook posts made by Jodie Holt from photographs of her and the defendant contained in those posts and the statements made therein.
On that evidence, on 15 April 2024 the court made orders for substituted service of the originating summons and the affidavit of the plaintiff sworn 16 February 2024 in support, and service was effected in accordance with those orders on 20 May 2024.
The Facebook posts attributed to Jodie Holt, which I find were made by her, evidence that she and the defendant married in Bali in mid‑March 2024, and that Jodie Holt changed her surname from Jackson to Holt at about that time.
I am satisfied that service of my orders made 11 September 2024 was effected by the plaintiff in accordance with those orders on the same date, and that a further copy of the September 2024 orders was served in accordance with those orders by Jacob Gregory Harrison, a process server, on or about 12 May 2025.
In his affidavit sworn 12 March 2025, Mr Harrison deposed, in effect, to having had attended at 109 Giles Avenue on 8 March 2025, where he was informed by a female occupant that the defendant lived at that address, but was currently in New Zealand.
As already stated, on 29 July 2025 the plaintiff filed the summons.
The plaintiff deposed in her affidavit sworn 29 July 2025 in support of that application that the defendant had not filed any substantive response to the September 2024 orders and, in particular, that the defendant had not provided the accounts he was required to produce by those orders.
On 27 August 2025 I made orders adjourning the plaintiff's summons to 5 September 2025. On 5 September 2025, I made orders granting the plaintiff leave to amend her summons in terms of the minute of proposed further amended summons filed 3 September 2025, and otherwise adjourned the summons to 26 September 2025.
In his affidavit sworn 18 September 2025, Graham Robert Coates, a process server, deposed to having sent a copy of the plaintiff's further amended summons to the Facebook accounts of the defendant and Jodie Holt late in September 2025, and to having received a response that they did not reside at 109 Giles Avenue.
Mr Coates's evidence was that he attended at 109 Giles Avenue on 13 September 2025, and that a man and woman answered the door at that address. Mr Coates' evidence is that he asked the man if he was Robert Glenn Holt, and the man said 'no, he (i.e. Mr Holt) was the previous tenant'. Mr Coates asked if he had left a forwarding address and was told by the man that he thought he went back to New Zealand.
Mr Coates also gave evidence that the woman then became agitated and stated that she was sick of being harassed by people coming to the address. Having been shown a photograph of the defendant and Ms Holt after his attendance at the property, Mr Coates's evidence is that they were the people to whom he spoke on 13 September 2025 at 109 Giles Avenue.
I infer from Mrs Holt's complaint that she was sick of people coming to the address that she had spoken to process servers on previous occasions, consistent with the earlier evidence.
Having regard to Mr Coates' evidence, on 26 September 2025 I declined the plaintiff's application to be permitted to serve the summons by way of substituted service, because I considered that the plaintiff could personally serve the summons on the defendant and that it was preferable that she do so.
I therefore adjourned the hearing of the summons to 17 October 2025. On 16 October 2025 I adjourned the hearing to 5 November 2025, in response to an emailed request by the plaintiff's solicitors.
The evidence of Brendan Raymond Leppard, a process server, by affidavit sworn 28 October 2025 was that:
[4]
(a) he was instructed to serve the defendant with a 'further amended summons (General Form)' at 109 Giles Avenue, Padbury;
(b) he was provided with a photograph by the plaintiff's solicitors, which he was instructed showed the defendant and Jodie Holt;
(c) he attended at 109 Giles Avenue on 6 October 2025;
(d) he saw a brown Landrover with the private registration plate 'BLACKRAT' parked at those premises;
(e) he saw Jodie Holt leave the premises at 11.04 am; and
(f) he saw the defendant leave the property by the front door sometime later.
[5]
Mr Leppard's evidence is that he then approached the defendant, saying to him 'Robert Glenn Holt, I have papers for you', upon which the defendant immediately returned inside the property. Mr Leppard's evidence is that he then knocked on the front door of the property, but there was no response. He then left 'the documents' enclosed in an envelope at the front door.
Mr Leppard did not identify which documents he left in the envelope, nor did he attach a copy of the documents he was asked to serve to his affidavit. I infer from his description of the document and the fact that I had refused an application for substituted service of the further amended summons on 5 September 2025 that Mr Leppard was provided with a copy of the summons and left that document in the envelope at the front door.
The evidence of Earl Villarin, a solicitor acting for the plaintiff, is that on 4 November 2025 he forwarded copies of my orders made 16 October 2025 to the defendant by sending sealed copies to the 'blackrat' email address and the defendant's mobile telephone number, and by sending a sealed copy of the order by prepaid post under a covering letter addressed to the defendant at 109 Giles Avenue.
I pause to note that it is unlikely that the defendant would have received that letter prior to the hearing on 5 November 2025.
Order 72 r 2 provides that personal service of a document is effected by leaving a copy of the document with the person to be served. The object of personal service is to ensure that the relevant process will come to the notice of the person to be served, so that person has a proper opportunity to appear and defend the proceedings: Hope v Hope (1854) 4 De g M & G 328; [1854] EngR 805; 43 ER 534; Ainsworth v Redd (1990) 19 NSWLR 78, 85.
The text of O 72 r 2 requires only that the document be left with the person to be served. It is not necessary that its nature and purpose should be identified, described or brought to the attention of the person to be served: Ainsworth v Redd, 86. Leaving a copy of the document with the person to be served does not require that the document be put into that person's hands, that they be seen to take hold of the document, or be told the nature of the document: Ainsworth v Redd, 89 - 90.
Unlike some other jurisdictions, O 72 does not make different provision for service where the person to be served does not accept the copy of the document. Arguably, the defendant was personally served with a copy of the summons on 6 October 2025 when the document was left at the front door of 109 Giles Avenue, the defendant having been told that Mr Leppard had papers for him and having sequestered himself inside the property: see Johnston v Johnston (1889) 7 NZLR 87, although there is also old authority to the effect that service of a document in a sealed envelope without informing the person to be served of the nature of the document does not constitute personal service: Re a Debtor [1939] 1 KB 251, 256.
I am satisfied, and was satisfied on 5 November 2025, that the defendant is living at 109 Giles Avenue, and has been living there since these proceedings have commenced, although it is possible that he may have been absent from those premises from time to time. Further, I was and am satisfied that each of the defendant and Jodie Holt have misled process servers tasked with serving documents filed in these proceedings upon the defendant on occasion about the defendant's identity and his whereabouts.
For those reasons, I made orders on 5 November 2025 authorising the plaintiff to effect service of the amended summons and my orders of 5 November 2025 by way of email to the 'blackrat' address and by pre‑paid post to 109 Giles Avenue. I was comfortably satisfied that service in that form would come to the attention of the defendant.
As a question arose as to whether the defendant had been served with the affidavits in support of the summons, on 12 November 2025 I again adjourned the hearing of the summons, and made orders for the service of the summons, my orders of that date and the affidavits on which the plaintiff intended to rely in support of the application by email to the 'blackrat' email address and by prepaid post addressed to the defendant at 109 Giles Avenue.
I find that service of the summons, my orders of 11 September 2024, 5 November 2025 and 11 November 2025, together with the affidavits on which the plaintiff seeks to rely were served by email in accordance with my orders of 12 November 2025 on 20 November 2025.
I further find that copies of those documents were posted by prepaid post to the defendant on 20 November 2025. I am not satisfied that those documents reached the defendant before today's hearing, and accordingly proceed on the basis he was served with the documents by email on 20 November 2025.
Ordinarily, a party is entitled to receive at least seven days' notice of any summons in respect of which orders are to be sought from the court. In this case, accepting that the amended summons and the affidavits in support were provided to the defendant by email on 20 November 2025, the defendant has had approximately two working days' notice of today's hearing and of the documents on which the plaintiff intends to rely.
In the ordinary case, I would regard that period of time as inadequate service and would decline to proceed without further adjourning the application to a further date to be fixed. Given, however, the numerous attempts to serve the defendant with the papers related to this application, the defendant's approach to service and his failure to attend or take any part in these proceedings and the undoubted dismay of the plaintiff arising from the delays since 29 July 2025 in seeking to have the defendant comply with the orders of the court, I am prepared to abridge the time for service to that time necessary to allow the application to be heard and determined today when I would not otherwise do so.
I accordingly turn to the application that the defendant be committed for his contempt. I have considered whether it is appropriate to proceed to determine the charge in his absence, or to issue a warrant for his arrest.
In view of the defendant's ongoing refusal to participate in the proceedings, the steps taken to give him notice of the various steps being taken in the proceedings to date, including substituted service of the summons, and the methods he has adopted in dealing with process servers, I consider that it is appropriate to proceed to determine the application in his absence. Although it is the defendant's right to be heard in opposition to the summons, he does not have to exercise that right and has, in my view, been given more than an adequate opportunity to do so. There is an important public interest in vindicating the processes of the court.
On an application for committal which is not in the face of the court, the facts are usually placed before the court upon affidavit: R v Lovelady [1981] WASC 329; [1982] WAR 65, 66, 69. Proof of contempt must be proof beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525, 534, and by admissible evidence: Consolidated Press Ltd v McRae [1955] HCA 11; (1955) 93 CLR 325 at 333.
As the purpose of the summons is to punish the defendant for contempt, the application is not an interlocutory application. Hearsay evidence about service is therefore not admissible in support of the application for contempt: Re Heritage Innes Australia Pty Ltd (in liq) v Newman (Unreported, WASC, Library No 980490, 2 September 1998), although it was admissible for the purposes of the various applications for substituted service and was employed by me in making, in particular, the orders of 5 November 2025 and 12 November 2025.
In order to make out the allegation of contempt, the plaintiff must prove beyond reasonable doubt that the defendant came to know of the September 2024 orders and has failed to comply with them.
I am satisfied beyond reasonable doubt that the defendant was served with the September 2024 orders in accordance with the orders for substituted service. I am further satisfied to that standard that compliance with the orders for substituted service at 109 Giles Avenue and the 'blackrat' email address would have brought the September 2024 orders to the attention of the defendant, because he has been resident there throughout the course of the proceedings.
The plaintiff's evidence, which I accept, is that the defendant had not complied with the September 2024 orders as at 29 July 2025. I infer from her ongoing prosecution of the summons that he has continued to fail to do so.
For a civil contempt to be committed, there must be an order of the court. The order must be clear and unambiguous in its terms. The reason for that requirement is elementary justice. It would be unjust to hold a person liable for contempt for failing to comply with an order which was unclear or ambiguous.
I am satisfied that the September 2024 orders were unambiguous in their terms. The plaintiff does not allege that the circumstances in which the defendant has failed to comply with the September 2024 orders should be characterised as criminal contempt, and it is therefore unnecessary to consider that issue further.
Where an alleged contempt of court consists of a failure to comply with an order of the court, it must be demonstrated that the contempt was wilful and not merely casual, accidental or unintentional: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, although it is unnecessary to prove that the contemnor intended to breach the court's order: Anderson v Hassett [2007] NSWSC 1310; Mudginberri at 111.
I am satisfied beyond reasonable doubt, having regard to the evidence of Messrs Coates and Leppard, that the defendant's failure to comply with the September 2024 orders is wilful in the requisite sense. In the absence of any explanation from him, I can only infer that the defendant has adopted the position that he is entitled to ignore the proceedings, including the orders of the court, if he has not been physically served.
Disobedience of a court order in circumstances which constitute a contempt of court affects the administration of justice generally. The court's power to punish for contempt is necessary to uphold and protect the administration of justice, because the administration of justice is brought into disrepute if disobedience to a court's order goes unpunished: Mudginberri 106 - 107.
As the defendant has failed to take any part in the proceedings, his reasons for failing to comply with the court's orders are not known, nor is the court aware of his personal circumstances.
In those circumstances, I consider that it is inappropriate to sentence the defendant for his contempt without hearing from him as to sentence.
Subject to hearing from counsel, I therefore propose to order that:
[6]
(a) it be declared that the defendant has committed a contempt of this Honourable Court by failing to comply with the orders of the court made 11 September 2024, that he provide the plaintiff with the accounts and papers specified in those orders without any reasonable justification for that failure, and by otherwise failing to respond in any way to those orders;
(b) the determination of penalty be adjourned to a date to be fixed.
[7]
However, given the history of the proceedings, I have no confidence that the defendant will appear on any sentence hearing unless compelled to do so.
I accept that there is no evidence to suggest that the defendant is likely to abscond. To the contrary, his conduct to date suggests that he intends to continue to reside at 109 Giles Avenue, but to continue to ignore the proceedings. I therefore consider that it is doubtful that the court's power to issue a warrant for the defendant's arrest pursuant to O 55 r 6 is enlivened: see The Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641, 644 attached by Kirby P to his decision in Attorney-General (NSW) v Hayden (1994) 34 NSWLR 638; Schnabel v Lui [2002] NSWSC 1184 [17] - [18].
I note that in Cossens v Petta (No 2) [2015] WASC 313, Jenkins J doubted whether the court could order the attendance of a person to answer a charge of contempt prior to conviction: [13], although her Honour considered that there was no impediment to doing so once the charge had been proved. If it were necessary to decide the point, I consider that The Registrar, Court of Appeal v Ritter is authority for the proposition that the court has inherent power to order the attendance of a person for that purpose, and to issue a warrant for their arrest if it considers the interests of justice require that be done to bring them before the court.
In the present case, I have already found that the defendant has committed a contempt, and is therefore liable to penalty for his conduct. There is no question in my view that there is power to issue a bench warrant to bring the defendant before the court to be heard as to the sentence to be imposed for his conduct.
As there is presently no evidence of his circumstances and it is possible that he is labouring under the mistaken view that he may ignore the court's orders, it is appropriate that he be brought before the court to make any submissions he may think fit before the court imposes sentence.
To that end, I will order that a bench warrant be issued for the arrest of the defendant pursuant to the court's inherent jurisdiction to bring the defendant before the court to be heard as to the penalty that should be imposed for his contempt of this court.
[8]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[9]
[1] Leave to amend the summons in those terms was granted on 5 September 2025. The plaintiff filed an amended chambers summons on 23 August 2025, but did not seek leave to amend the summons in those terms.