Kirkpatrick v Kotis

4369/04 BENJAMIN DAVID KIRKPATRICK v MICHAEL KOTIS JUDGMENT - Ex Tempore (Re admissability of Paragraph 3 of Affidavit of Banjamin David Kirkpatrick of 13 September 2004) 1 HIS HONOUR: This is the hearing of a charge of contempt of Court. It relates to certain alleged breaches of orders which the Court made on 27 August 2004. The statement of charge which has been served after formal preliminaries, alleges breaches of orders in the following terms: "1. On 27 August 2004 the Honourable Justice Campbell of this Court made orders in the nature of injunctions which were entered on that date, a true copy of which is annexed hereto and marked 'A' (' the Court's orders' ). 2. A sealed copy of the Court's orders was personally served on you on 2 September, 2004 at 239 Marrickville Road, Marrickville. 3. On 9 and 10 September 2004 you, by yourself, your servants and agents, undertook excavation works on the Defendant's land (within the meaning of the Court's orders) adjoining, or in the immediate vicinity of, the cabana constructed on the Plaintiff's land (within the meaning of the Court's orders), by any excavation means, without having first: (a) Caused the footing of the southern wall of the brick cabana constructed on the plaintiff's land, which is not bearing on rock to be underpinned, and has done so by taking all such steps as are specified for such underpinning either in par 5.3 of the expert report of Mr D R McMillan, structural engineer, which is annexed to his affidavit sworn 4 August 2004, the supplementary expert report of Mr D R McMillan, structural engineer, dated 17 August 2004 which is annexed to his affidavit sworn 19 August 2004 and the structural engineering drawing of Mr D R McMillan described as 'Cardno MBK Preliminary Drawings 605071-D-101A, 102A and 103A' which comprise Appendix A to that supplementary report of Mr McMillan; (b) Served on the plaintiff and Mr D R McMillan a certificate by a qualified structural engineer certifying that the underpinning work undertaken on the footing for the southern wall of the brick cabana on the plaintiff's land complies in all respects with the terms of par (a) above. PARTICULARS (i) Paragraphs 1 and 2 of the Court's orders. (ii) See the report of Mr D R McMillan, structural engineer, dated 9 September 2004 which is annexure 'A' to the affidavit of D R McMillan sworn 9 September 2004 (which accompanies this statement of charge), pages 3-4, answer to Question 4, which particularises the failure to comply with paragraphs 1 and 2 of the Court's orders. (iii) No certificate which complies with par 3(b) above was served on the plaintiff before such excavation works were undertaken."

2 It will be seen that the statement of charge is one which relates to activities carried out on 9 and 10 September 2004. The statement of charge is one which was filed in Court on 13 September 2004, and was also first returnable on that day. 3 Objection has been taken to a portion of an affidavit which was sworn by the plaintiff on 13 September 2004. That affidavit deposes to the following facts: "3. At about 7.30 this morning, 13 September 2004, I observed, while standing in the rear yard of my property at 14A Ashley Street, Tamarama, the same mini-excavator with hydraulic hammer attachment depicted in the photographs contained in Exhibit "BDK-1" to my earlier affidavit of today, undertaking excavation work on the site of the proposed home site on the adjoining land of the defendant. Such excavation work was being undertaking within 4 metres of the common boundary of the defendant's land with my land. 4. The defendant has not sought my permission to install a monitor at foundation level of the cabana on my land as provided for in the second paragraph 5 of the Court's orders made on 27 August 2004 (agreement between the parties noted by the Court). 5. No monitor of the kind referred to in paragraph 3 of the Court's orders dated 27 August 2004 has been installed at foundation level of the cabana on my land in terms of that order as at 7.30 this morning when I last inspected the cabana on my land." 4 Objection is taken to paragraph 3. The basis of the objection is that the contempt which has been charged, insofar as it relates to the actual undertaking of excavation work, concerns excavation work which happened on 9 and 10 September 2004. 5 It is now clearly established that contempt proceedings are criminal in nature, even though not all of the procedural characteristics of a criminal trial apply in them: Witham v Holloway (1995) 183 CLR 525 at 534. Even before that became clear, the High Court, in Coward v Stapleton (1953) 90 CLR 573 at 579-580 said: "... it is a well recognised 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: In re Pollard (1868) LR 2 PC 106, at p. 120; R v Foster; Ex parte Isaacs (1941) VLR 77, at p. 81." 6 I adopt the statement of the law by Barrett J in Turner v Oates Properties Pty Ltd [2004] NSWSC 732 at 11: "This rule contemplates, clearly enough, a distinct set of words constituting a "statement specifying the contempt" and either "subscribed to" or "filed with" the notice of motion or summons filed in accordance with Part 55 rule 6. The nature and function of a statement of charge appear from the following passage in the judgment of Lee and Finn JJ in Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758: "It has long been accepted that a person should not be punished for contempt unless the specific charge against him or her be distinctly stated and an opportunity of answering it given to that person ( Coward v Stapleton (1953) 90 CLR 573 at 579-580.) "[T]his principle must be rigorously insisted upon" ( Coward v Stapleton at 580; Doyle v The Commonwealth at 516). It is reflected in O40 r6 and r8 of the Federal Court Rules which require that, on a proceeding for punishment of an alleged contempt a statement of charge 'specifying the contempt of which the accused person is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or application' and that the 'notice of motion or application, the statement of charge, and the affidavits [in support of the application] shall be served personally on the accused person'. The requirement that the statement of charge specify the contempt alleged is so as to allow the accused person to know the case he or she has to meet and to defend ( Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64 at 73; see also: Cotroni v Quebec Police Commission (1977) 80 DLR (3rd) 490 at 497 'Precision is necessary if the accused is to be able to defend himself effectively'). The vehicle most commonly used to specify the conduct relied on to support the charge laid is the provision of appropriate particulars in, or annexed to, the statement of charge itself ( Concrete Constructions at 73-74). If the statement of charge itself does not sufficiently specify the contempt, the affidavit evidence served with the statement cannot be relied upon to remedy the deficiency ( Harmsworth v Harmsworth [1987] 1 WLR 1676 at 1683)." 7 The objection that is taken to paragraph 3 is that it relates to conduct which occurred on a date other than the date when the conduct alleged to be the contempt has occurred. 8 Counsel for the plaintiff has referred me to the decisions of the Court of Appeal in Tynan v Meharg [1999] NSWCA 27; [1999] NSWCA 157. That case involved a mandatory order by the Court to remove a house, by a particular date. That did not occur. A charge of contempt was brought. Various extensions were granted of the time by which the order required removal. The Court of Appeal, in considering the penalty which could or should be imposed, looked at the conduct of the person the subject of the order, not only up to the time when the order to remove the house elapsed, but also subsequently. 9 I can readily see that subsequent conduct of this kind could be relevant to a court for the purpose of deciding what penalty could be imposed, once a contempt has been established. Such subsequent conduct is conduct which could establish whether or not conduct which was a contempt was a contumelious contempt, and, if it was contumelious, the degree of its contumeliousness. However, I do not regard that style of relevance as one which applies at the stage of deciding whether a contempt has been committed. There are some types of subsequent conduct which can be relevant to a charge of contempt, such as the statements made in paragraphs 4 and 5 of Mr Kirkpatrick's affidavit, that, even by 13 September 2004, no permission had been sought to install the monitor, and no monitor had actually been installed, at the position which Mr Kirkpatrick identified. That no such permission had been sought, and no such monitor had been installed, by 13 September 2004, is indeed relevant to the question of whether permission had been sought, or a monitor installed, at the earlier dates which were charged, 9 and 10 September 2004. However, the material which is contained in paragraph 3 of Mr Kirkpatrick's affidavit is not material which can make rationally more probable, within the meaning of section 55 of the Evidence Act 1995, any question of whether, on 9 or 10 September 2004, the contempts which are alleged were committed. 10 I reject paragraph 3 of the affidavit. **********

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