Ford Motor Company of Australia Limited v Tallevine Pty Ltd

703 Hinch v Attorney General for the State of Victoria [No 2] (1987) 164 CLR 15 John Alexander's Clubs Pty Limited v White City Tennis Club Limited; Walker Corporation Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1; [2010] HCA 19 Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 Mills v Futhem Pty Ltd (2011) 81 NSWLR 538; [2011] NSWCA 252 National Australia Bank Limited v Human Group Pty Ltd [2019] NSWSC 1404 NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 O'Brien v Bank of Western Australia Limited [2013] NSWCA 71 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 Ransley v Commissioner of Taxation [2016] FCA 778 Reid v Howard & Ors (1995) 184 CLR 1; [1995] HCA 40 R v Boag (1994) 73 A Crim R 35 Seymour Whyte Constructions Pty Ltd v Ostwald Brothers Pty Ltd (in liquidation) (2019) 99 NSWLR 317; [2019] NSWCA 11 Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10 Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 Westpac Banking Corporation v Burke [2011] NSWSC 549 Witham v Holloway (1995) 183 CLR 525; [1995] HCA 5 Category: Procedural and other rulings Parties: Ford Motor Company of Australia Limited (Plaintiff) Tallevine Pty Ltd (as Trustee for the Thornleigh Trading Trust) (Defendant) Representation: Counsel: B Katekar (Plaintiff) T Brennan with Mr M Darian-Smith (Defendant)

Solicitors: Landers & Rogers (Plaintiff) Agility Legal (Defendant) File Number(s): 2015280964/; 2017/75192; 2019/163053

Judgment

1. HIS HONOUR: There are three notices of motion for decision which were heard concurrently on 30 and 31 October 2019. The three motions pertain to two separate proceedings, each brought by Ford Motor Company of Australia Limited ("Ford").
2. The first proceedings (2017/75192) (which I will refer to as the "contempt proceedings") were brought by Ford by way of Summons and Statement of Charge ("SOC") against Tallevine Pty Ltd atf Thornleigh Trading Trust ("Tallevine"). Ford alleges that Tallevine is in contempt of court for having breached consent orders made by this Court on 28 October 2015 ("the consent orders"). The consent orders were made to give effect to the settlement of proceedings between Ford and Tallevine in the County Court of Victoria arising out of the termination of the dealership agreement between them. That settlement was reached following mediation on 16 September 2015 and involved entry into a settlement deed ("the settlement deed") (Court Book ("CB") V2, p 459ff).
3. Tallevine has cross-claimed in the contempt proceedings, seeking an order setting aside both the consent orders and the settlement deed claiming that Ford misled it into entering into the deed. It relies on various provisions of the Competition and Consumer Act 2010 (Cth) ("CCA"), Sch 2 - Australian Consumer Law, s 131.
4. The second proceedings (2019/163053) (which I will refer to as the "enforcement proceedings") were commenced by Ford on 24 May 2019 against Tallevine and its sole director and shareholder, Mr Ian David Charles Creak ("Mr Creak"). Mr Creak was also a party to the settlement deed (CB V2, p 469).
5. In the enforcement proceedings, Ford seeks to enforce the settlement deed including by orders restraining Mr Creak from engaging, or causing another of his companies, Fleet Serv Pty Limited ("Fleet Serv"), to engage in conduct prohibited by the consent orders and the settlement deed. Ford also claims damages for breach of a covenant prohibiting Mr Creak and Tallevine from suing Ford in relation to the subject matter of certain releases given in the settlement deed. Ford asserts that Tallevine's cross-claim in the contempt proceedings is a breach of this covenant.

Brief background to the dispute

1. Tallevine was formerly an authorised Ford dealer under a dealer agreement between it and Ford entered into in or about April 2011. On 28 August 2013 Tallevine, Mr Creak and an employee were convicted in the Local Court of certain offences under the Motor Dealers Act 1974 (NSW)(repealed). Most of the convictions were later quashed by the District Court, on 17 November 2014. But before then, on or about 9 September 2013, on the basis of the convictions, Ford terminated the dealer agreement. These circumstances led to the Victorian proceedings.
2. Pursuant to the settlement deed Ford commenced proceedings in this Court repeating the matters averred in the Victorian proceedings to finalise the settlement by filing the consent orders. A minute of the consent orders, identical to those filed in this Court, was an attachment to the settlement deed (CB V2, pp 470-3). The consent orders as made are at CB V2, pp483-8; and as entered, at CB V2, pp 489-491. It is important to refer to both documents now because a perceived difference between them is central to much of the current dispute. (For further background, see the judgment of Harrison J in Ford Motor Company of Australia Limited v Tallevine Pty Ltd (as trustee for the Thornleigh Trading Trust) [2017] NSWSC 1703 at [6]-[51].)

The Creak motion

1. By Notice of Motion filed 23 April 2019, [1] Mr Creak, in his personal capacity, sought an order revoking orders for discovery made on 13 February 2019 in the contempt proceedings by McCallum J (as her Honour then was). He also sought relief under s 87 Civil Procedure Act 2005 (NSW) ("CPA") ("the Creak Motion") invoking the privilege against self-incrimination. It is common ground that on 24 July 2019, the Creak motion was dismissed by consent. At the commencement of the hearing before me, two residual issues remained, namely the costs of the motion and access to an exhibit covered by McCallum J's orders but said to be potentially incriminating. This latter issue fell away on the second day of hearing because the documents were produced (77.4-16T).

The Ford motion

1. Ford seeks, by Notice of Motion filed 24 May 2019, various orders including leave to amend its summons and SOC in the contempt proceedings, the joinder of Mr Creak as a defendant alleging accessorial liability, and access to certain documents over which Tallevine has claimed legal professional privilege, referred to as categories 18 and 21 ("MFI 6"). Ford also seeks an order under r 28.5 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that the contempt proceedings and the enforcement proceedings be listed and tried jointly ("the Ford Motion").

The Tallevine motion

1. Tallevine seeks, by its Notice of Motion filed 8 July 2019, the summary dismissal of Ford's summons for contempt, or alternatively the strike-out of certain specific counts in Ford's SOC [2] and a stay of both its cross-claim filed in the contempt proceedings and the enforcement proceedings on the ground they are purely civil proceedings not relating to contempt which is in the nature of criminal proceedings. Tallevine also seeks an order striking out its own defence to the contempt proceedings on the basis that no defence was required and it is entitled to plead the general issue. Alternatively it seeks leave to file an amended defence withdrawing the apparent admissions made in paragraphs 15-23 ("the Tallevine Motion").

Summary of issues

1. Mr Katekar of Counsel who appeared for Ford provided a helpful document ("MFI 1") which identified the extant issues which I have attempted to summarise above. I propose to set out some general matters to provide additional context to my decision and then acknowledging that some of the issues are interconnected, I propose to deal with them in the order indicated below. My order is somewhat different to that proposed by Mr Katekar: 1. Whether the contempt proceedings should be summarily dismissed; 2. Whether specific counts in the Statement of Charge should be struck out; 3. Whether Tallevine should be granted leave to withdraw its defence, including the admissions formally made, with a view to pleading the general issue to the Statement of Charge; 4. Whether Ford should be granted leave to amend its Summons and Statement of Charge to join Mr Creak as a defendant; 5. Whether the Statement of Charge should be severed from Tallevine's cross-claim in the contempt proceedings with a view to staying the cross-claim and the enforcement proceedings until the contempt proceedings have been finalised; 6. Whether categories 18 and 21 in Tallevine's discovery in the contempt proceedings are subject to legal professional privilege and therefore not liable to be produced; 7. Whether Mr Creak should be liable to pay Ford's costs of Mr Creak's abandoned motion of 23 April 2019. I reiterate that the issue in relation to the production and access to certain documents identified in the proceedings as Exhibit TJP-5 has been resolved informally between the parties. I should also say that other than the question of staying the enforcement proceedings all of the relief sought arises in the contempt proceedings.

The making of the consent orders

1. On 28 October 2015, I received as duty judge a document embodying the consent orders signed by the solicitors for both Ford and Tallevine. I made the orders in chambers as the parties had requested by signing the orders and affixing the Court seal to them that day. I will refer to these orders as the orders "as made". I have attached a copy of the orders as made to this judgment as Annexure "A".
2. After I made the consent orders on 28 October 2015, I returned the file to the Registrar for the orders to be entered on the Court's computerised record system, JusticeLink. This occurred on the same day. I will refer to the consent orders as they appear on JusticeLink as the consent orders "as entered". It is important to record now that at 11:37 am on 28 October 2015 by email the Prothonotary advised the parties that "the Duty Judge has made" the consent orders they had proposed (CB V2, pp 474-476).
3. Ford's original contempt summons (I leave aside the prospect of amendment for the time being) dated 10 March 2017 seeks a declaration that Tallevine is guilty of the charges of contempt as particularised in its SOC filed with the summons. Ford seeks an order under r 55.13(2) of the Supreme Court Rules 1970 (NSW) that Tallevine be punished for its contempt by sequestration or fine or both. By the SOC Ford brings what appear to be thirteen counts of contempt particularising various breaches of the consent orders. By [24] it avers that Tallevine is "acting in contumacious disregard of the [consent] orders" (CB V1, p16). It may be taken then that Ford charges Tallevine with criminal, rather than civil, contempt and it is unnecessary for me to conjure with the "illusory" difference between the two: Witham v Holloway (1995) 183 CLR 525; [1995] HCA 5 at 530-534.
4. The SOC recites that orders were "made" but annexes and incorporates the orders as "entered". The only difference between the two is that orders 4(b) and 8(b) as made restrain conduct by reference to a "device" depicted in the order. The depiction of the device is absent from the orders as entered.
5. Orders 4 and 8 as made are shown below depicting the device: [3]
6. The orders were entered as follows: "4. The defendant is immediately restrained from advertising, distributing, supplying, offering for sale and selling motor vehicles, motor vehicle parts or accessories or any other goods or services under or by reference to the following signs (Ford Signs), or any sign which is substantially identical to or deceptively similar to any of the Ford Signs, or authorising or procuring or inducing any person to do so: (a) the word FORD (subject to paragraph 10 below); (b) the following word and device: (c) the word RANGER (subject to paragraph 10 below); (d) the words MYFORD FINANCE; (e) the words GO FURTHER … 8. From 17 September 2016, the defendant is restrained from advertising, distributing, supplying, offering for sale and selling motor vehicles, motor vehicle parts or accessories or any other goods or services under or by reference to the following signs (Ford Raptor Signs), or any sign which is substantially identical to or deceptively similar to any of the Ford Raptor Signs, or authorising or procuring or inducing any person to do so. (a) the word RAPTOR (subject to paragraph 10 below); (b) the following word and device: 9. …" One can see that the Ford and Ford Raptor devices also define the expressions "Ford Signs" and "Ford Raptor Signs" which are used extensively throughout the orders (see Annexure "A").

Contempt

1. In Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48 at 579 - 580 a unanimous High Court (Williams ACJ, Kitto and Taylor JJ) observed: … it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him. (Citations omitted) See Doyle v Commonwealth of Australia (1985) 156 CLR 510; [1985] HCA 46 at 516.
2. In Hinch v Attorney General for the State of Victoria [No 2] (1987) 164 CLR 15 at 89, another unanimous High Court (Mascon CJ, Wilson, Deane, Toohey and Gaudron JJ) said: Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.
3. From this and more directly from Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [66], the general rules which govern the proceedings are the rules of civil procedure. As Nettle J said in the passage from Boral Resources referred to: The contempt alleged in this case is a criminal contempt. It is alleged that CFMEU is guilty of wilful and contumacious disobedience of an injunction. The relief which is sought is thus punitive, not coercive or remedial; and, therefore, the proceeding is a penal proceeding. Even so, it is a civil proceeding. It is tried by judge alone and, subject to the qualification explained below, the applicable rules of procedure are the rules of procedure which apply to other civil proceedings. The qualification referred to is that a defendant who is a natural person as opposed to a corporation has available to him or her the privilege against self-incrimination and the privilege against self-exposure to penalty. And that matter will be relevant when I consider whether Ford should have leave to join Mr Creak as a party to the contempt proceedings.
4. The plurality in Boral Resources (French CJ, Kiefel, Bell, Gageler and Keane JJ) also emphasised that notwithstanding the consideration that all proceedings for contempt "must realistically be seen as essentially criminal in nature" (Hinch at [49], Deane J) and therefore "must be proved beyond reasonable doubt" (Whitham v Holloway at 534) that proceedings on a charge of contempt are not to be regarded as the equivalent of a criminal trial (at [43]). The "differences" include, as Nettle J observed, trial by judge alone, rather than jury, and the initiation of the proceedings "not by the executive government, but by private parties to an indisputably civil proceeding" (at [44]). The plurality also affirmed McHugh J's statement from Whitham v Holloway at 459 "that proceedings for contempt of court to punish a respondent are 'civil and not criminal proceedings'".

Summary dismissal and strike-out

1. It must be borne in mind that Tallevine has invoked the UCPR to bring this motion for summary dismissal or strike-out and it is well for me to bring to mind the stringent test which normally applies. It is unnecessary to multiply references to authority. It is sufficient to refer to Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] to which Mr Brennan referred: It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant … should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way (footnote omitted). It should also be borne in mind as Macfarlan JA observed in O'Brien v Bank of Western Australia Limited [2013] NSWCA 71 at [3] that "the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded". And in this context, of course, frequently, at least in ordinary civil proceedings, the court will permit a plaintiff to re-plead to cure defects or irregularities apparent on the face of the initiating process which might otherwise expose the proceedings to summary dismissal or a pleading to strike-out. The relevant rules of Court are r 13.4 for summary dismissal and r 14.2(8) UCPR for strike-outs.

Legislation concerned with judgments and orders

1. The principal argument advanced for Tallevine is that proceedings for contempt are an indirect mode of enforcement of a court's judgments and orders. The major premise is that, by dint of s 133 CPA, entry is a precondition of enforcement. And the minor premise, only the orders as entered may be enforced if there is a difference between them and the orders as made. Counsel relied on Owen J's judgment in Australian Consolidated Press Limited v Morgan (1964) 112 CLR 483 at 516 to support the proposition that ambiguous or uncertain orders will be insufficient to found proceedings for contempt. Mr Brennan submitted that the entered orders, by the omission of the devices in orders 4(b) and 8(b), are ambiguous or uncertain and accordingly the proceedings should be summarily dismissed.
2. Mr Katekar argued that by reason of s 131 CPA, s 133 CPA has no application to proceedings for contempt (46.10-43T). Section 133 is concerned with direct, rather than indirect, enforcement by way of writ of execution and the like. Orders are effective when they are made and Mr Katekar submits that Ford are entitled to enforce the consent orders as made, as it seeks to do, by the SOC. He argues that as made there is no ambiguity or uncertainty. Alternatively, it is submitted the entered orders may be construed by reference to admissible extrinsic material to resolve ambiguity, inconsistency or other uncertainty.
3. It is necessary to set out the relevant provisions of the CPA and UCPR below. Section 133(1) CPA provides: 133 Judgments and orders unenforceable until entered (1) A judgment or order of the court may not be enforced until it has been entered in accordance with the uniform rules.
4. Mr Katekar draws attention to s 131 CPA which provides: Nothing in this Act or the uniform rules limits or otherwise affects the power of the court to attach or commit a person for contempt.
5. Rule 36.1A(1) UCPR provides: The court may, if satisfied that all relevant parties have been notified, give judgment, or order that judgment be entered, in the terms of an agreement between parties in relation to proceedings between them.
6. Rule 36.4 UCPR provides: 36.4 Date of effect of judgments and orders (1) A judgment or order takes effect - (a) as of the date on which it is given or made, or (b) if the court orders that it not take effect until it is entered, as of the date on which it is entered. (2) Despite subrule (1), if an order of the court directs the payment of costs, and the costs are to be assessed, the order takes effect as of the date when the relevant cost assessor's certificate is filed. (3) Despite subrules (1) and (2), the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by those subrules.

Mills v Futhem Pty Ltd

1. Mr Brennan submits that construing the orders by reference to extrinsic material to cure the obvious omission in orders 4 and 8 was a path foreclosed by the Court of Appeal's decision in Mills v Futhem Pty Ltd (2011) 81 NSWLR 538; [2011] NSWCA 252. He also submits that where Ford has failed to utilise the mechanisms in the UCPR for the amendment of orders after entry, and where it failed to make express provision in them for the consent orders to be entered forthwith when pronounced, it should now bear the consequences of those mistakes by being unable to enforce the orders affected by those mistakes.
2. Mills v Futhem Pty Ltd was concerned with terms of settlement by which an action in debt was resolved. There were three entries in the District Court's computerised court record system none of which set out the orders contained in the terms. Each entry in slightly different language merely referred to the terms either as "filed" or "entered". Allsop P (with whom Beazley JA and Handley AJA agreed) said (at [26]-[28]): [26] I will return to the proper meaning of the terms of settlement in due course. Whatever the document's meaning, was it entered into the computerised court record system? The answer to this question is, no. The entry in the computerised court record system did not amount to what is contemplated by Pt 36, r 36.11(2) of the UCPR. What needs to be recorded in the court's computerised record system is the judgment or order. Given that the only document that had been filed and that the parties had sought the Court to deal with was the document entitled "terms of settlement", for that agreement to be the basis of the Court's judgment for the purposes of r 36.1A, there must have been a recording of the judgment or order, in its terms. It can be accepted that the Court would not make a judgment or order in terms of para 4. But the parties, by filing the document, have requested it (or such of it that lawfully can be made) to be made as a record of the Court. This would require for entry under r 36.11(2) the recording of the judgment or orders in the terms of settlement. [27] The proper construction of r 36.11 is, it seems to me, that unless a court orders otherwise for r 36.11(2) or unless a court directs, in the manner set out in r 36.11(2A), entry under the UCPR is not effected otherwise than by recording in the court's computerised court record system contemplated by r 36.11(2). Recording the orders means just that: setting them out. There is no recording of the orders if all that is stated is that some orders exist. It would undermine the integrity of a computerised record system to have mere references to pieces of paper in files treated as a recording of the judgment or order in the computerised record system. In my view, that is not what the rule means. To the extent that the record in the computerised system might be seen as some form of incorporation by reference, it does not record the judgment or orders. One cannot even ascertain the amount of the judgment in order 1. One can put the two together, by looking at the file, but that is not adequate. [28] In Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; (2008) 75 NSWLR 462 Basten JA (with whom Giles JA and Ipp JA agreed) noted that entry of judgment and orders now occurs in the computerised court record system. It was unnecessary in that case to deal with the question of whether this was the only method of entry (subject to any direction of the court under r 36.11(2) or r 36.11(2A)). In my view, however, this must follow. If it were otherwise and the "paper" entry of an order was entry (absent any order otherwise for subr (2) or direction contemplated by subr (2A)), there would be entry at one date and then, if, but only if, the judgment or order were to be recorded in the court's computerised record system there would be another and later date for the entry of the order by reason of the phrase 'taken to be entered'.

John Alexander's Clubs v White City

1. Mr Brennan also relies on certain statements of the High Court in John Alexander's Clubs Pty Limited v White City Tennis Club Limited; Walker Corporation Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1; [2010] HCA 19 at [152] ("John Alexander's Clubs"). The decision precedes Mills v Fulthem but like it, emphasises that the fact of "entry" may need to be established by evidence. I will cite the paragraph relied on by Tallevine in full: [152] It must be said that if the Club's submission that r 36.11(2) applies to the facts of this case is sound, the good sense of the rule is open to debate. It concerns an important question, for non-compliance with court orders can be contempt of court: it is important to know what orders have been made and when, and it is equally important to know within what period they can be set aside. The lapse of time between pronouncement and entry of orders also provides opportunity for the correction of error, an opportunity lost if the submissions by the Club are accepted. If the Club's submissions in relation to r 36.11(2) were correct, considerable injustice could be done to persons unaware that orders damaging their rights have been entered without their knowledge. The process of entry into the court's computerised system is a secret process independent of the acts of the parties and outside their knowledge."
2. The above is a normative statement stressing the importance of maintaining the accuracy of the Court's record. But I do not think the High Court goes as far as suggesting, as Mr Brennan submits, that it is the "entered orders which are the basis of the contempt" (28.7-16T). Indeed, the High Court's approach in John Alexander's Clubs is telling against Mr Brennan's submission because it gives primacy to the orders as made. It is the orders as made which need to be accurately and reliably entered.
3. An issue facing the High Court there was ascertaining the date of entry of orders made by the New South Wale Court of Appeal. There were (at least) two competing dates: 3 June 2009 and 12 June 2009. The correct date was important because of the effect of r 36.16(3A) and (3C) limiting the time allowed for varying entered orders. In the Court of Appeal, Basten JA (in dissent) found that the date of entry was 3 June 2009 and consequently the notice of motion filed, seeking the variation of the order was out of time. The majority of the Court of Appeal, however, proceeded on the basis that the date of entry was 12 June and therefore the application was filed within time.

Which orders are operative?

1. Under r 36.1A, the court may "give judgment, or order that judgment be entered, in terms of an agreement between the parties in relation to proceedings between them". Rule 36.4(1) makes clear that a judgment or order takes effect on the date on which it is given or made. It is only if the court orders that the judgment or order is not to take effect until it is entered that legal effectiveness is postponed until the date of entry. No order postponing the effect of the consent judgment to the date of entry was made in this case. Accordingly the consent orders were effective immediately when they were made in chambers on 28 October 2015.
2. Nothing in John Alexander's Club affects this conclusion. The passage relied upon by Tallevine at [152] (see [41] above) confirms this. I will set part of it out again: … it is important to know what orders have been made and when, and it is equally important to know within what period they can be set aside. The lapse of time between pronouncement and entry of orders also provides opportunity for the correction of error … One knows what orders have been made when the Court pronounces them. Those are the orders with which the parties must comply. An order can be set aside up until it is entered, and in New South Wales by application made during the extended period provided for in r 36.16. This period provides an additional window of opportunity for the correction of error if necessary.
3. Entry is the point in time when legal finality conclusively descends, subject to the extended opportunity provided by r 36.16. Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [13] is concerned with "the powers of a superior court of record to reopen a proceeding and reconsider the orders that have been made". At [18] the Court said: The formal recording of the orders of a superior court of record is often referred to as the "perfecting" of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been "perfected". This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy? (My emphasis). And at [20] their Honours said: Identifying the formal recording of the order of a superior court of record as the point at which that court's power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court. These observations remain good law, notwithstanding what was said in John Alexander's Clubs about entry on the Court's computerised record as happening in secret, and without reference to the parties. Rule 36.16(3A) ameliorates the potential for this reality to cause injustice.

Construction of orders

1. My conclusion that the 4(b) and 8(b) devices are included would be the same even if the operative orders were the orders as entered.
2. Extrinsic evidence is sometimes available as an aid in the construction of orders. In Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 Basten JA said the following at ([60] and [64]): [60] Although there has been a debate as to whether it is permissible to go to extrinsic material to assist an understanding of a court order, it is not in doubt that such material may be relied on in a case of ambiguity: P Herzfeld, "Interpretation of Orders", in P Herzfeld, T Prince and S Tully, Interpretation and Use of Legal Sources - The Laws of Australia (Thomson Reuters, 2013) at [25.4.730]. In Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 at [29], Hodgson JA accepted a statement that "in the case of real ambiguity extrinsic material such as the reasons for judgment may be considered", referring to Justice P W Young, "Construing Court Orders" (1998) 72 ALJ 117. Hodgson JA also cited the proposition from Repatriation Commission v Nation (1995) 57 FCR 25 at 34, where Beaumont J said (Black CJ and Jenkinson J agreeing) that "evidence of surrounding circumstances is admissible to assist in [construction] of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has a 'plain meaning' (see Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 per Mason J at 352)". This proposition was recently affirmed in Ross v Lane Cove Council [2014] NSWCA 50 at [30]-[31] (Leeming JA). … [64] In order to construe an order, a court should: (a) identify the statutory power under which the order was made (to avoid a construction leading to invalidity); (b) address the language used, to identify a plain meaning if one is available; (c) if latent ambiguity is alleged, refer to the reasons for judgment and the application to which the order responded; (d) in the event of ambiguity (or other uncertainty), not resolved by reference to the reasons for judgment and the terms of the application, look to the submissions and (possibly) other material before the judicial officer on the application.
3. Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265 concerned the availability of this approach to construction that arose on the hearing of a charge of contempt of court. Campbell J (as his Honour then was) referred to the principle established for Australian purposes by Australian Consolidated Press Limited (see above at [28]). Before a party can be held guilty of contempt, the terms of the order relied upon must be clear and unambiguous. Having reviewed the authorities, his Honour (at [55]) stated: In my view, the court approaches the question of whether the order is ambiguous with the caution appropriate to a type of litigation which could result in the defendant being punished - if an order is really not clear, it is unjust for someone to be punished for not obeying it. As well, though, the court approaches the question of whether the order is ambiguous on the basis that the recipient is expected to try to understand it and obey it. If a person taking that approach to the order could be in real doubt about what it meant, in a respect which is relevant to the particular charge of contempt which is brought, the charge will fail. This means that there will sometimes be orders which a grammatical analysis would show to contain a syntactic ambiguity, but which are none the less enforceable if it is the type of ambiguity that has no real risk of misleading. There will sometimes be orders which contain a term which has multiple meanings, but where that semantic ambiguity has no real risk of misleading. If there were to be an order addressed to a promoter of musical groups not in any way to be involved in the advertising or promotion of a band under some particular name, the order would be enforceable notwithstanding that a "band" can sometimes be a rubber band, or a headband. And at [57] his Honour said: In the case of consent orders, where surrounding circumstances can be used as an aid to construction, those surrounding circumstances can have the effect that an order which is ambiguous, considered in isolation, is found to be not ambiguous when read in light of the surrounding circumstances. As the surrounding circumstances that are taken into account are facts known to all parties to the consent order, they are the very thing that a person trying to understand and obey the order would take into account. Hence it is appropriate that any question of whether the order is ambiguous should be answered only after such facts have been taken into account. I am of the view, as Basten JA said in Wende at [64] these principles extend to ambiguity, inconsistency or other uncertainty.

Service and lack of penal notice

1. As part of his case for summary dismissal Mr Brennan argued that the orders as entered had not been personally served on Tallevine (or Mr Creak) and as a necessary corollary of the first proposition no penal notice had been given in accordance with r 40.7(3) UCPR. I emphasise that this argument proceeds on the basis that the relevant orders are the consent orders as entered omitting the devices from orders 4(b) and 8(b). For reasons already expressed I have rejected this essential foundational premise underpinning Mr Brennan's argument. On the approach that I prefer, either because the relevant orders are the consent orders as made, or on their proper construction, the consent orders as entered contain the devices, I am not satisfied beyond argument that the consent orders are unenforceable because of non-compliance with r 40.7 UCPR.
2. Rule 40.7 of the UCPR is relevantly in the following terms: 40.7 Service of copy of judgment before committal or sequestration (1) A judgment is not enforceable by committal or sequestration unless - (a) a sealed copy of the judgment is served personally on the person bound by the judgment, and (b) if the judgment requires the person to do an act within a specified time, the sealed copy is so served within that time or, if that time is extended or abridged, within that time as extended or abridged. (2) If the person is a corporation, the judgment is not enforceable by committal of an officer of the corporation or by sequestration of the property of an officer of the corporation unless, in addition to service under subrule (1) - (a) a sealed copy of the judgment is served personally on the officer, and (b) if the judgment requires the corporation to do an act within a specified time, the sealed copy is so served before that time expires. (3) The sealed copy of the judgment must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property - (a) where the judgment requires the person to do an act within a specified time, if the person fails to do the act within that time, or (b) where the judgment requires the person to do an act forthwith or forthwith on a specified event, if the person fails to do the act as so required, or (c) where the judgment requires the person to abstain from doing an act, if the person disobeys the judgment. (4) If a person liable to committal or sequestration by way of enforcement of a judgment has notice of the judgment - (a) by being present when the judgment is directed to be entered, or (b) by being notified of the terms of the judgment, whether by telephone, telegram or otherwise, the judgment may be enforced against that person by committal or sequestration without service having been effected in accordance with this rule. (5) The court may dispense with service under this rule. (6) This rule does not apply to a committal or sequestration arising from a failure to comply with the requirements of a subpoena."

Tallevine's specific complaints about the statement of charge

1. I will deal next with some of Tallevine's specific challenges to individual counts in Ford's SOC. There is some degree of overlap between these complaints and some of the amendments Ford proposes to make to the SOC in that some of the complaints are capable of being ameliorated by Ford's proposed amendments. Some of the proposed amendments will be mentioned along the way. That a perceived defect may be cured by amendment is always relevant to a question of summary dismissal or strike out.
2. I deal with Ford's application to join Mr Creak to the contempt proceedings later in these reasons as it raises separate issues for determination. Given my views already expressed about both the consent orders as made being the relevant orders and the proper construction of the consent orders as entered, the majority of Tallevine's complaints fall away, in any event.

Paragraph 3 of the Statement of Charge

1. Paragraph 3 of Ford's SOC alleges: The defendant is guilty of contempt of this Court in that, in breach of Order 1(d), the defendant has failed to transfer to the plaintiff the internet domain names www.phdford.com.au and www.pennanthillsford.com.au. Particulars (i) The domain names have been transferred to Printwell Pty Limited ACN 060 580 305. (i) Whois Australia Domain search for www.phdford.com.au as at 8 March 2017. (ii) Whois Australia Domain search for www.pennanthillsford.com.au as at 8 March 2017.
2. Order 1(d) relevantly provides: 1. The defendant must immediately: … (d) do all things necessary to transfer to the plaintiff the internet domain names www.phdford.com.au, www.pennanthillsford. com.au, www.fordrangerraptor.com.au and any other internet domain name registered in its name or that of any related entity that contains any of the words FORD or RANGER
3. Tallevine submits that the facts alleged and particulars of breach given in paragraph 3, even if proven, could never amount to a breach of order 1(d) (20.34-39T, DWS [57]). Tallevine argues that if it were proven that it failed "to transfer" the domains, this would not establish that Tallevine had failed to "do all things necessary to transfer" the domains.
4. It is clear to me that the allegation in count 3 is intended to engage order 1(d) and by using the word "transfer" Ford is referring to so much of the process of transfer which is within Tallevine's control. I do not accept Tallevine's submission in relation to count 3. The failure of Tallevine to achieve the transfer is at least some evidence of breach of order 1(d) and Tallevine has failed to establish that Ford's case is untenable.
5. Count 3 is subject to a proposed amendment in Ford's Motion. Mr Katekar explained that at the time the SOC was filed and served, Ford did not know whether Tallevine had taken any step to comply with this order. All it knew was that the domains had not been transferred. The proposed amendment reflects the fact that on 11 December 2017, the domains were finally transferred to Ford. Mr Katekar pointed to the evidence of Messrs Creak and Khan, which, in substance, indicates that although an instruction was given to Tallevine's IT provider to transfer the domain names, this did not eventuate necessitating a further request in February 2017. I am of the view that the issue of whether this amounts to a breach of order 1(d) is an issue for trial. I will deal with the application for amendment separately. I am of the view whether it is permitted or not there is, as I have said a triable issue.

Paragraph 11(a)

1. Paragraph 11(a) of Ford's SOC avers: 11. The defendant is guilty of contempt of this Court in that: (a) in breach of Order 4(a), the defendant is offering for sale or selling motor vehicles, motor vehicle parts or accessories or other goods or services under or by reference to the word FORD.
2. The breach is particularised by reference to a website operated by Tallevine which features a drop down box that contains a list comprising website links to different vehicles and brochures created by Ford.
3. Order 4 is extracted in its entirety above at [18]-[19]. For present purposes, in terms it restricts Tallevine from advertising, distributing, supplying, offering for sale and selling motor vehicles, motor vehicle parts or accessories or any other goods or services under or by reference to the word "FORD" (or authorising or procuring another to do the same), subject, however, to exception or proviso in order 10 (see Annexure "A"). Order 10 provides: 10. Nothing in these orders prevents the defendant from: (a) describing its business as "Pennant Hills Auto Traders" with the description "Specialising in importing Raptor and F Series vehicles from the United States", provided that the words RAPTOR and F SERIES are in the same size and style of font as the rest of the description; (b) using the words FORD, RANGER and RAPTOR in good faith to describe the vehicles that the defendant is offering for sale.
4. Mr Brennan's submission is that the allegation in paragraph 11(a) is bound to fail because nowhere in its SOC does Ford allege that the proviso in order 10 does not apply: i.e. that the conduct the subject of the alleged breach of order 4(a), describing the vehicles that Tallevine was offering for sale was not carried out in good faith (20.47T). That is to say Mr Brennan submits that the absence of good faith is an element of the alleged contempt that Ford must plead and prove.
5. Whether the non-applicability of the proviso in order 10 is an element of a breach of order 4(a) such that Ford bears the onus of alleging it, or whether the proviso in order 10 operates akin to a defence such that the onus is on Tallevine to raise it, is a matter of construction: Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19 at 519; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 41 at 257; cf s 417A Crimes Act 1900 (NSW).

Paragraph 19

1. Paragraph 19 of the SOC contains the allegation that Tallevine's website refers to a franchise showroom and displays a device containing the word Raptor. That is charged to be a breach of order 11(a) which prohibits Tallevine representing that it is the holder of a Raptor franchise granted by Ford.
2. Mr Brennan submits that objectively, the word "Raptor" makes no representation of connection with Ford or any of its related companies. He says that there is no evidence to suggest that Ford is the only user of the "Raptor" trademark (21T).
3. Whether the use of the word "Raptor" is a representation of connection with Ford is eminently an issue for trial. Ford is entitled to, and presumably will, call evidence to establish this element of the charge at that time. It is too early to tell whether paragraph 19 will fail. I reject Tallevine's submission that paragraph 19 ought summarily to be dismissed.

Paragraphs 11(b) and 17(b)

1. But for my construction of the entered orders I would have been prepared to accept that the effect of the omission of the two devices is to render orders 4(b) and 8(b) as entered inutile if read literally and in isolation. That is, if a third party with no knowledge of the proceedings, the terms of the settlement deed, and the form of the consent orders as signed on behalf of the parties, were to read orders 4(b) and 8(b) there is simply no way in which that third party could know what was required of them in order to comply. However the reasonable person in that position would know "something is missing".
2. It is obvious that something has been omitted. It is not the case that the orders as entered lend themselves to the construction advanced by Mr Brennan (16.36T) that the words "the following word and device" would be understood to run directly into order 4(c) or order 9, as the case may be, those being the immediately following orders. The sequential alphabetised lettering of the orders in the form of a list indicates to a reader that orders 4(b) and 8(b) have some independent work to do and were not intended to be otiose.
3. For the reasons already rehearsed at length, Tallevine and Mr Creak are in a fundamentally different position to a hypothetical third party, unfamiliar with the background and context leading up to the orders being made. Indeed, Mr Brennan disavowed any attempt to argue that Mr Creak - and by extension Tallevine - did not know of the contents of the consent orders as made (15.31-34T). Indeed, the evidence I have referred to elsewhere unequivocally shows that they were both perfectly aware of the contents of the orders as made. Mr Brennan stated the position was that neither Mr Creak nor Tallevine were aware of the differences in the consent orders as entered until the summons charging Tallevine with contempt was served on it (15.27-43T).
4. I am not of the view that these counts are completely untenable or should be struck out.

Paragraph 13(a)

1. Consent Order 6 as made and as entered is in the following terms: The defendant is immediately restrained from applying to register any business name, company name, domain name or trademark which consists of any of the Ford signs or Ford Raptor signs or any sign which is substantially identical to or deceptively similar to any of the Ford signs or Ford Raptor signs including the name PENNANT HILLS FORD and PENNANT HILLS RAPTOR or authorising or procuring or inducing any person to do so.
2. Count 13 of the SOC avers that on 7 September 2015, Tallevine lodged an application to register a trademark containing a Ford Raptor Sign or a trademark that was substantially identical or deceptively similar to a Ford Raptor Sign. The particulars include a device, I will say attempting to be neutral, containing script very similar in appearance to the script of the device appearing at the end of order 8(b) as made. The gravamen of the charge is that Tallevine failed to withdraw its application after the Consent Orders were made or entered.
3. Mr Brennan's argument is the omission of the devices from the consent orders as entered render the charge too uncertain to found proceedings for contempt and which uncertainty, on his argument, cannot now be cured. It follows from my decision that the orders as entered are the relevant orders and alternatively that as a matter of construction, the orders as entered incorporate the devices that I reject this argument.

Paragraph 15

1. Count 15 of the SOC alleges a breach of Order 7(b). Order 7(b) restrains Tallevine from advertising, distributing, supplying or offering for sale motor vehicles or accessories "bearing any of the Ford Signs or Ford Raptor Signs that are not manufactured by or with the authority of" Ford. It will be recalled that the expressions "Ford signs" or "Ford Raptor signs" are expressions defined in Order 4 and 8 respectively by reference to the device at the end of Order 4(b) and Order 8(b). For the reasons I have rehearsed, the Consent Orders that were made and entered include the devices and the averment for that reason is not flawed as asserted by Tallevine.
2. It follows that I will refuse summary dismissal and the striking out of any of the counts in the SOC.

Tallevine's defence

1. Tallevine filed a defence to the summons and SOC verified by the affidavit of Mr Creak, affirmed on 26 April 2017. Tallevine's solicitor provided a certificate under Clause 4 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 (NSW). The statement of defence made a number of admissions of matters averred in the Statement of Claim. A number of other matters are either not admitted or denied and specific matters are pleaded by way of explanation or justification, as it were, particularising or supporting the denial or non-admission.
2. Tallevine also filed a document styled First Cross Claim, Cross Summons on 7 August 2017 impugning the settlement deed and consent orders. The Cross Summons is supported by "points of claim" running to some 28 pages to which Ford filed a defence on 15 February 2018.
3. It is important to bear in mind that as things stand, Tallevine is the only party charged with contempt. Mr Creak is not presently a party. Essentially Tallevine argues that the defence and the affidavits of Mr Creak of 12 May 2017 and 14 May 2017 were filed in ignorance of Tallevine's entitlement to take no active steps in its defence, call no evidence, and require Ford to prove its case beyond reasonable doubt, consistently with the application of the fundamental principle to proceedings for contempt. Tallevine also points to the circumstance that Part 55 of the Supreme Court Rules 1970 (NSW) does not require the party charged with contempt to file anything in the nature of a defence. Mr Brennan argues that the party charged with contempt is entitled to plead the general issue by way of a plea of not guilty and has no obligation to call evidence at all. This may be correct, so far as it goes. I also understand Mr Brennan's argument to involve an invocation of the "companion principle".
4. There are difficulties with this approach. The first is that the proceedings are civil proceedings, and subject to the application of the fundamental principle that the prosecution must prove its case beyond reasonable doubt, the ordinary civil procedures apply. Secondly, it is the ratio of Boral Resources, in which all Justices agreed, that the companion principle prohibiting the prosecution from enlisting the accused as a witness in its case does not apply where the party charged is a corporation. Thirdly, a corporation enjoys no privilege against self-incrimination or self-exposure to a penalty: Environment Protection Authority v Caltex Refining Co. Pty Ltd (1993) 178 CLR 477; [1993] HCA 74.

Should Ford be granted leave to join Mr Creak as a defendant to the contempt proceedings

1. By its Proposed Amended Statement of Charge (CB V1, p 100 ff) Ford seeks to join Mr Creak to the proceedings in his capacity as a sole director, secretary and sole shareholder of Tallevine between 28 October 2015 and 30 June 2017. His capacity as the sole director and secretary of Fleet Serv is also mentioned although it is not a party to the contempt proceedings and there is no averment against Mr Creak relating to any involvement by it. The case against him is restricted to the period ending on 30 June 2017. This is significant as it appears to be common ground between the parties that, as I have said, as about that date, Tallevine's previous business was transferred to Fleet Serv.
2. There is also the general averment that Tallevine's conduct said to be in breach of the orders "was not in good faith" in contravention of Order 10 of the Consent Orders and some other refinements to other paragraphs as they appeared in the original SOC.
3. The specific allegations against Mr Creak appear in paragraphs 19C, 19D and 19E of the Proposed Amended Statement of Charge. His contempt in these averments is limited to accessorial liability in respect of Tallevine. His involvement is said to be "wilful", therefore alleging criminal contempt against him.
4. The essential issue between the parties relates to the joinder of Mr Creak rather than the refinement of the case against Tallevine. The issues are: 1. Delay. Mr Creak could have been joined when the Summons and the Statement of Charge were brought in March 2017; 2. Mr Creak would be prejudiced if joined now as in his capacity as a director of Tallevine, he has made disclosures that would not be required of him in a person capacity; 3. There is no reason to seek to punish Mr Creak now for Tallevine's conduct prior to 30 June 2017; 4. Alternatively, if joined, information already disclosed by Mr Creak should be quarantined; and 5. Mr Brennan also relied upon the decision in ANS Nominees Pty Ltd v Beverly Manufacturing Co Pty Ltd [1979] 2 NSWLR 875.
5. Ford argues that the delay in joining Mr Creak is explained by Tallevine's failure to disclose in a timely way the sale of its business to Fleet Serv. It also invokes s 56 CPA. Ford points out that all claims in both the contempt proceedings and the enforcement proceedings arise from a single set of facts, involving common issues of fact and law. The joinder of Mr Creak to the contempt proceedings would reduce the multiplicity of litigation and the risk of inconsistent judgment. Presumably the last point relates to a proposition that he could be proceeded against for contempt separately without leave.

Should the statement of charge be severed, and the cross-claim and enforcement proceedings stayed until the contempt charges are finalised

1. The principles governing the exercise of the discretion to stay civil proceedings pending the finalisation of criminal proceedings were discussed by Jagot J in Ransley v Commissioner of Taxation [2016] FCA 778, upon which Mr Brennan placed much reliance. Her Honour also provided an analysis of the decision of the High Court in the Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 at [35] - [47]. Mr Katekar drew my attention to the summary of the relevant principles in National Australia Bank Limited v Human Group Pty Ltd [2019] NSWSC 1404 by Henry J at [35] ff.
2. It is unnecessary for me to descend into detailed analysis of these principles for the purpose of the present decision given that I have refused leave to join Mr Creak as a defendant to the contempt proceedings. The principal concern of the courts is the preservation of a natural person's right to a fair criminal trial including preservation of the right to silence and the companion principle as an aspect of that criminal trial. These concerns are not as great where, as here: the only defendant against whom punishment is sought is a corporation; the contempt proceedings are not to be equated with a criminal trial even though they are criminal in nature; the contempt proceedings are civil proceedings to be determined in accordance with the requirements of the UCPR; Tallevine is not entitled to the right to silence or the benefit of the companion principle; there are no potential jurors whose thinking might be somehow affected by any publicity which might be given to the matter; and there is no separate, subsequent prosecution by the state in contemplation.
3. It needs to be borne in mind that what is proposed by Ford is a concurrent hearing of the contempt proceedings including the cross-claim and the enforcement proceedings. This is not a situation where separate and private civil proceedings are proposed to be heard in advance of a public criminal trial brought by the Crown to traverse the same factual matrix as the civil proceedings.
4. Mr Brennan accepts that if there is to be no stay, the only sensible order is that the matters be managed and heard together (2.17 - .18T). I am not persuaded that a stay of the cross-claim and of the enforcement proceedings is necessary to protect the legitimate rights of Tallevine or the interests of the administration of justice.

Production of documents

1. As I have already said, the argument in relation to Tallevine's discovery has been reduced to two categories of documents, category 18 and category 21. I received those documents for inspection (MFI 6).
2. Ford's main complaint was that a claim for legal professional privilege was not clearly articulated by Tallevine's solicitor who objected on the basis that all documents in each category post-dated the commencement of proceedings. While the objection to production was put informally, I would have thought, as a matter of practice, to say that communications with potential witnesses took place after the commencement of proceedings was a shorthand way of invoking legal professional privilege.
3. However that might be, I have inspected the documents comprising category 18 and I am satisfied that the documents are communications between Tallevine's solicitor and Mr Creak and Fleet Serv's dealership accountant in February 2019 which were confidential communications for the dominant purpose of the client, i.e. Tallevine, being provided with professional legal services in relation to the contempt proceedings.
4. I have also inspected the documents comprising category 21. This category consists of a number of file notes of telephone conversations between the solicitor acting for Tallevine and potential witnesses relevant to the count contained in paragraph 13 of the SOC.
5. I am satisfied that these documents record confidential communications between the lawyer acting for Tallevine and other persons for the dominant purpose of Tallevine being provided with professional legal services relating to the contempt proceedings.
6. I refuse access to Ford to each of category 18 and 21.

Mr Creak's Motion

1. In my view Mr Creak should bear the costs of his motion. Mr Brennan has argued that there was no contested hearing and therefore no event for the costs to follow. However, this was not a case of a consensual resolution. I am satisfied that Mr Creak effectively abandoned the application after Ford was put to the costs of defending it and the general rule applies that Mr Creak should pay Ford's costs thrown away by reason of the abandonment of the application.

Summary of decisions

1. For the reasons aforegoing, the substance of my decision is: 1. Tallevine has not persuaded me that the contempt proceedings should be summarily dismissed; 2. Tallevine has not persuaded me that specific counts from the Statement of Charge should be struck out; 3. Tallevine has not persuaded me that it should be granted leave to withdraw its defence including the formal admissions made with a view to pleading the general issue to the Statement of Charge; 4. Ford have not persuaded me that it should be granted leave to amend its summons and Statement of Charge to join Mr Creak as a defendant; 5. Tallevine has not persuaded me that the contempt proceedings should be severed from Tallevine's cross-claim and the enforcement proceedings which should be stayed until the contempt proceedings have been finalised; 6. Tallevine have persuaded me that categories 18 and 21 in its discovery in the contempt proceedings are subject to legal professional privilege and are therefore not liable to be produced; 7. Mr Creak should pay Ford's costs of his abandoned motion of 23 April 2019.
2. I have also concluded that the slip rule should be used to supply the unintended omission of the devices depicted in orders 4(b) and 8(b) as made. This will regularise the record. And if so advised Ford may bring forward for consideration a further proposed Amended SOC against Tallevine only.

Costs of the proceedings

1. Leaving aside the costs of Mr Creak's motion of 23 April 2019, Ford has largely failed in its motion of 24 May 2019. I have denied leave to join Mr Creak as an accessory and I have denied access to the documents remaining in contention. However, I have acceded to its application that the contempt proceedings and the enforcement proceedings should be managed and heard concurrently. My distinct impression is that there was no real issue about that matter in view of my decision on Tallevine's motion of 8 July 2019.
2. Tallevine has been unsuccessful in all of the relief sought in its Notice of Motion of 8 July 2019. It seems to me that Tallevine's costs of the motion of 24 May 2019 should be costs in the cause, and Ford's costs of Tallevine's motion of 8 July 2019 should be its costs in the cause.
3. I appreciate that although not named as a respondent to Ford's motion of 24 May 2019, Mr Creak was an affected person and the arguments advanced by Mr Brennan on why leave should not be given for Ford to proceed on the proposed Amended Statement of Charge were very largely advanced on his behalf. By prayer 3 of the Notice of Motion Ford accepted that the costs of its motion, even if successful may well be governed by the so-called "indulgence rule" as to costs. In these circumstances, I am of the view that so far as he has incurred costs, Ford should pay Mr Creak's costs of the Motion of 24 May 2019.

Orders

1. I direct the parties to bring Short Minutes of Order giving effect to my decision as summarised at [138]-[142] by Thursday, 8 October 2020. The short minutes should make provision for re-listing the matters for further directions before the Registrar.

Endnotes

1. Tallevine's submissions refer to this notice of motion as being dated 24 April 2019. JusticeLink records indicate that the correct date is in fact 23 April 2019.
2. Namely paragraphs 2, 3, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19.
3. Both orders spanned across two separate pages. The following scans have been condensed for ease of reading.

Amendments 29 September 2020 - Paragraph 93 - Second sentence - the word "contender" changed to "contemnor" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2020