The requirements of rr 41.06 and 41.07
192 The submissions for Mr Mensink assert that an order must be endorsed and personally served before a finding of contempt can be made in relation to an alleged breach of that order. In a sense, that submission is getting ahead of itself. The contempt proceedings have not yet reached the point of determining whether or not a finding of contempt can be made out. The present issue is not whether the charges of contempt can ultimately be sustained, but, rather, the antecedent question of whether the contempt proceedings have been lawfully commenced in the first place, that also being a necessary pre-condition to a collateral arrest warrant.
193 The statement of charge, reproduced at [144] above, contains two charges:
(1) The first charge alleges a failure to comply with order 2 made by the primary judge on 27 February 2017. That order clearly required Mr Mensink to do something, namely to appear at an examination at 9.30 am on 27 March 2017. The reference in order 2 to the order made by the registrar on 15 December 2016 is, perhaps, infelicitous, given that the prior obligation to attend for examination arose from the amended summons and not from the registrar's orders. However, the substance is clear enough for present purposes. A charge can always be amended, especially to remedy formal errors or defects.
(4) The second charge alleges a failure to comply with order 2 made on 15 December 2016. For the same reason, that is also, perhaps, infelicitous, because the prior obligation to attend for examination arose from the amended summons and not from the registrar's orders. The particulars to that charge continue to rely upon the 15 December 2016 orders themselves, rather than to the amended summons issued the next day pursuant to those orders. It is not necessary for the purposes of this appeal to decide whether a charge of contempt could have been brought for failure to comply with the amended summons, rather than with the antecedent orders.
194 The submissions for Mr Mensink assert that it was plain that rr 41.06 and 41.07 applied to the orders that were made on 27 February 2017. That much may be accepted. Those orders required his attendance at the adjourned examination and so engaged the terms of r 41.06. Those orders were also plainly not themselves an examination summons so as to engage r 11.4 of the Corporations Rules in relation to service, leaving only r 41.07 to apply.
195 The submissions for Mr Mensink also assert that rr 41.06 and 41.07 applied to the orders made on 15 December 2016. That proposition cannot be accepted, for the simple reason already noted that the orders made by the registrar on 15 December 2016 did not require Mr Mensink to do anything, and so, in terms, did not engage r 41.06 or, consequently, r 41.07. Rather, the orders made on 15 December 2016 were made under r 11.3 of the Corporations Rules, and resulted in the amended summons issuing the next day in accordance with Form 17. That amended summons was served by substituted service ordered pursuant to r 11.4 of the Corporations Rules. However, as already noted, neither charge of contempt is based upon non-compliance with the amended summons. The viability of the second contempt charge as presently drafted would therefore appear to be sufficiently in doubt that it alone could not safely, at least as presently drafted, support the arrest warrant. However, the arrest warrant does not depend only upon the second contempt charge, but also independently upon the first contempt charge.
196 The submissions for Mr Mensink also contend that neither charge for contempt is sustainable unless both rr 41.6 and 41.07 had been complied with, relying upon the comments to that effect made by Murphy J in Titan Support Systems Inc v Nguyen (No 2) [2015] FCA 359 at [28]-[32]. That is said to be because the orders of 15 December 2016 were not endorsed as required by r 41.06, and because the orders of 27 February 2017 were not personally served as required by r 41.07. Presumably, no issue was taken as to personal service for the orders of 15 December 2016 because of substituted service, and no issue was taken as to the endorsement on the face of the orders of 27 February 2017 because that was clearly present. It is therefore submitted on behalf of Mr Mensink that the arrest warrant should not have issued.
197 The orders of 15 December 2016 themselves did not require Mr Mensink to do anything, such that they could not be relevantly disobeyed and therefore could not be the subject of any viable contempt charge for non-compliance. The question of severance of the arrest warrant only arises if there was a proper foundational (rather than evidentiary or factual) basis for the first contempt charge. In case that reasoning is incorrect, it is necessary to consider the argument in relation to the second contempt charge, namely that it was based on an order that was capable of being disobeyed, by reason, perhaps, of the amended summons, a draft of which was annexed to the 15 December 2016 orders. Considering that argument requires attention to the submission on behalf of Mr Mensink that the endorsement required by r 41.06 was indispensable to bringing charges of contempt, as found by Murphy J in Titan Support Systems. The respondents submit that the endorsement required by r 41.06 is not mandatory in circumstances in which:
(1) service of the orders had taken place orally, by telephone or electronically, that this had occurred as evidenced in Mr Mensink's affidavit, and that he accordingly had notice of the terms of the 15 December 2016 orders;
(9) if a person has notice of the terms of an order, a person may be committed for contempt even if that person was not notified of the possible consequences of non-compliance. That is because the effect of deemed service under r 41.07(2) is to satisfy the requirements of both rr 41.06 and 41.07. In support of that submission, the respondents cited a number of cases on that topic and on the related topic of applying r 1.34 of the Federal Court Rules to dispense with the formal requirements of any rule.
198 The cases relied upon by the respondents in support of the argument that the endorsement requirement in r 41.06 was not necessarily required if notification took place in accordance with r 41.07 are as follows:
(1) In Mason v MWREDC Limited [2012] FCA 1083, Greenwood J observed at [48]:
The structure of the Federal Court Rules 2011 provides for the endorsement obligation arising under rule 41.06 in respect of all three classes of possible enforcement orders namely, committal (imprisonment), sequestration of property and "punishment for contempt", unlike the earlier Order 37, rule 2(3). Rule 41.07(1) provides for personal service of the primary order duly endorsed under rule 41.06 subject to the exception contained in rule 41.07(2). That exception thus operates in relation to each of the three classes of enforcement orders contemplated by rule 41.06. It follows that a person will be taken to have been served with the relevant primary order at the time of notification of the terms of the order either orally or by telephone or electronically, for the purposes of subsequent enforcement proceedings whether they concern an application for orders for committal or sequestration of property or punishment for contempt.
(10) In Titan Support Systems, Murphy J at [23]-[28] generally agreed with Greenwood J in Mason v MWREDC and made further observations about the differences of rr 41.06 and 41.07 with the previous Rules of this Court. His Honour concluded at [28]:
Rule 41.06 necessitates an endorsement on orders that require the person bound to do, or not to do, an act or thing, and r 41.07(1) requires that the order (in my view carrying the required endorsement) be personally served on the person bound by it (unless the person has had other notice of the order as provided under r 41.07(2)). I consider that unless the required endorsement is included in the order served (or otherwise notified in accordance with Division 41.1) the order may not be enforced by way of committal, sequestration or punishment for contempt.
(11) In Sydney Medical Service Co-operative Limited v Lakemba Medical Services Pty Ltd (No 2) [2016] FCA 1188, Flick J at [8] cited and quoted from Titan Support Systems at [27]-[28], with evident approval.
199 Further, in Hurd v Zomojo Pty Ltd [2015] FCAFC 148, Besanko and Gilmour JJ said at [155]:
The effect of a lack of endorsement on the orders was raised in the course of submissions before the primary judge, and counsel for the appellants said he did not wish to be heard against the proposition that the lack of an endorsement did not affect the Court's power to find a contempt had been committed and to so declare. That proposition is correct. Under the previous Rules (Federal Court Rules 1979 (Cth) O 37 r 2), an endorsement was required if a person was liable to imprisonment or to sequestration of property. That did not preclude a Court from imposing a fine where there is no endorsement (Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118; (2006) 152 FCR 129 at 145 [68]-[70]). In the same way the Court can make declarations even though the current Rules require an endorsement for imprisonment, sequestration of property or punishment for contempt (r 41.06).
200 On the topic of dispensing with compliance with the Rules, the respondents rely upon the following authority:
(1) In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2015] FCA 1275; 238 FCR 209, Jagot J observed at [16]:
This endorsement has been replaced by a new version in the 2011 Rules, as set out in r 41.06. Consequently, the 2008 injunction, as served, did not carry the endorsement in that form. However, given that r 41.06 of the 2011 Rules did not exist at the relevant time it cannot be said that the applicant has failed to comply with that rule. Rule 41.06 is not a pre-condition to enforcement of an order by punishment for contempt. As the applicant submitted, if necessary, I could exercise the power in r 1.34 to dispense with any such requirement. Again, I do not consider it is necessary to do so.
(12) In Sydney Medical Service, Flick J further observed at [43]:
The repeated occasions upon which this proceeding has been before the Court, and the repeated occasions upon which Lakemba Medical Services has been informed of the serious consequences of non-compliance with Court orders, it is further concluded, provide a sufficient reason to dispense with compliance with the requirement imposed by r 41.06 in respect to the initial service of the Orders of 29 June 2016. It was accepted that a copy of the Orders bearing the endorsement required by that rule has subsequently been served together with the Amended Statement of Charge.
201 In reply submissions for Mr Mensink, it is submitted that the cases relied upon by the respondents do not stand for the proposition that the requirements in rr 41.06 and 41.07 were not prerequisites for a finding of contempt, and that they are, in any event, distinguishable. It is submitted on behalf of Mr Mensink that:
(1) Humane Society International and Sydney Medical Service both concerned ongoing final restraining orders where there was no dispute as to notice of the orders. In Sydney Medical Service, the absence of the penal notice was remedied before the contempt hearing took place and, in the circumstances of that case, that sufficed. In Humane Society International, the rule and thus the penal notice changed, so the new requirement could not have been complied with. In both cases, the respondent was a corporation and therefore no arrest warrant was issued.
(13) Humane Society International did not refer to Titan Support Systems, being a case that is said to establish at [28]-[32] that a failure to comply with either r 41.06 or r 41.07 is fatal to a contempt charge. Sydney Medical Service did not reach any different conclusion on this issue than Titan Support Services.
(14) Further, Hurd v Zomojo did not consider Titan Support Services, the point was not argued and reliance was placed on the prior Full Court decision in Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118; 152 FCR 129 at [68]-[70], which only dealt with the materially different earlier version of this Court's Rules.
202 The submissions for the respondents on this topic should be accepted. The factual and rule differences in the cases identified on behalf of Mr Mensink above go to the application of the relevant principles, rather than to their underlying substance. The submissions for Mr Mensink overstate the effect of Titan Support Systems, which approved of the observations by Greenwood J in Mason v MWREDC and, in particular, did not dispute the effect of r 41.07(2) in effectively dispensing with the endorsement requirement in r 41.06 when notification has taken place in accordance with that subrule. In any event, the absence of the r 41.06 endorsement is only fatal to an application for contempt in the limited situation in which committal to imprisonment of an officer of a corporation or organisation is sought and that person was not present when the order was made: see r 41.08(2)(a) and (3). It will not always be necessary for a charge of contempt to be made out that the precise terms of an order have been communicated, let alone that such an order contains the endorsement, although such service and such an endorsement, or their absence, will always be a matter to take into account. As Jagot J pointed out in Humane Society International at [18]:
The point of requiring service of a court order is to bring matters to the attention of the party in question. It is not the case that a party can avoid having to comply with a court order and thereby can avoid the potential of being found in contempt of court merely by engaging in wilful blindness to the terms of the court order. This is demonstrated by various decisions including Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535, Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394 and Tchia v Rogerson (1992) 111 FLR 1.
203 In light of the above authority, it may safely be concluded that:
(1) notification of orders in accordance with the alternative means in r 41.07(2) dispenses with the requirement for a warning in the form of the endorsement stipulated by r 41.06;
(15) compliance with rules such as rr 41.06 and 41.07 may be dispensed with in appropriate cases;
(16) the absence of an endorsement in accordance with r 41.06 will not necessarily be fatal to contempt proceedings; and
(17) if an endorsement in accordance with r 41.06 is absent, that will almost invariably be a factor to take into account in deciding whether contempt charges should issue, whether to make a finding of contempt if charges do issue, and as to the sanction to be imposed if that finding is reached. However, that factor may be diminished in importance, or even become practically irrelevant, depending on the circumstances.
204 To the extent that Titan Support Systems at [28] might be thought to require that an endorsement be made in accordance with r 41.06 in all circumstances other than where notification has been given in accordance with r 41.07(2) before contempt proceedings may be brought, respectfully, it should not be followed. While that endorsement is ordinarily required, and its absence may well be a most compelling reason for not allowing contempt proceedings either to be brought or to succeed, it is going too far to make the presence of the endorsement mandatory in all circumstances. In that regard, it should be observed that r 41.08, which describes how a contempt application is to be brought, does not, in terms, go that far. The absence of an endorsement (and service in accordance with r 41.07(1)) only prevents an application for contempt being made in the limited circumstances described in r 41.08(2)(c) and (3). Implicitly, such an absence is not fatal in other circumstances.
205 If, contrary to the conclusion reached above, the 15 December 2016 orders did require Mr Mensink to do something, which he could then be found not to have complied with, the absence of the r 41.06 endorsement and the absence of personal service would not have been fatal to the first contempt charge being laid, an arrest warrant being issued and the charge being heard and determined.
206 Turning to the 27 February 2017 orders that formed the basis for the first contempt charge, it is not in doubt that those orders had the endorsement required by r 41.06 of the Federal Court Rules. It has already been concluded that service of the 27 February 2017 orders made by the primary judge in accordance with either limb of r 41.07 was not demonstrated on the evidence before the primary judge. It has also already been concluded that this was not necessary to meet the requirements of r 11.10 of the Corporations Rules of having conveyed to Mr Mensink the fact that the examination scheduled to take place on 22 February 2017 (a date that was well known to Mr Mensink, as evidenced by his own affidavit) had been adjourned to 27 March 2017. The remaining question is whether the absence of proof of service of the orders of 27 February 2017, duly endorsed in accordance with r 41.07, was fatal to the valid issue of the statement of charge and thus the valid issue of the arrest warrant.
207 The short answer is that service in accordance with r 41.07 is not fatal, for the same reason that an endorsement in accordance with r 41.06 is not fatal. The Rules require both service and endorsement in that form, but the absence of either is not fatal. That is because the Rules do not so provide, especially by the terms of r 41.08 and, in particular, the limited stipulation in the Rules of when the absence of either will preclude an application from being made. The reasons for taking this stance are obvious enough, including those expressed by Jagot J in Humane Society International at [18], and reproduced above at [200(1)]. The contempt power is not meant to be a limp and technical response to disobedience of orders made by a Court, to be governed by pedantic adherence to form ahead of substance. In some cases, the absence of an endorsement or of actual service of orders will be of no moment in all the circumstances. Contempt is meant to be a serious response, but still a flexible remedy, to be applied fairly and judicially and to enforce not just orders and the conduct of proceedings free of improper influence, but also the integrity of judicial and related proceedings and thereby the administration of justice: see Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; 350 ALR 216 at [97].
208 Contrary to the submissions made on behalf of Mr Mensink, the mere fact that the primary judge did not make orders for a warrant to issue for his arrest on either 23 or 24 February 2017 did not, without more, operate to absolve Mr Mensink of whatever might flow from that prior conduct, nor guarantee that no action would later be taken in response. Rather, his Honour is to be regarded as having given Mr Mensink a second chance to appear. If Mr Mensink had availed himself of that second chance, in all probability, nothing would have come of the earlier failure to appear because the purpose of securing attendance would ultimately have been achieved. However, if he did not take advantage of the opportunity that had been given to him to make good his failure to appear on 22 February 2017, then the consequences of that antecedent failure to appear remained actionable.
209 The primary judge was entitled to form the view that a contempt charge in relation to the 27 February 2017 orders and an arrest warrant in respect of that charge should both issue. His Honour had dealt with those issues at various times and to varying degrees on 23 and 24 February 2017, when making the 27 February 2017 orders, and then again on 27 and 28 March 2017. His Honour had proceeded in a manner that was highly beneficial to Mr Mensink in giving him a second chance to appear. Mr Mensink plainly knew about the 22 February 2017 examination date, given his affidavit of 31 January 2017. He had been legally represented at the hearing on 23 and 24 February 2017 following his non-appearance, including during the fixing of a later examination date. He had an application made on his behalf by counsel and his solicitor to set aside orders separately requiring him to attend on the adjourned examination date of 27 March 2017. He had his solicitor appear in relation to his non-appearance on that date, and in relation to the application made for contempt charges and for an arrest warrant to issue. There was no reasonable alternative to the conclusion made by the primary judge that Mr Mensink had withdrawn from the jurisdiction, and that this state of affairs would continue for a considerable length of time, if not indefinitely. In all the circumstances, the primary judge was well and truly justified in signing the statement of charge in relation to the first charge, and in ordering that an arrest warrant issue and signing that warrant in respect of the first charge. The same cannot be said of the second charge, because of the limited terms of the 15 December 2016 orders. However, that portion of the statement of charge is readily severable.
210 It follows that the second aspect of ground 3 should succeed in relation to the arrest warrant insofar as it concerns the 15 December 2016 orders and the second charge of contempt, although not upon the basis of any argument advanced on behalf of Mr Mensink. However, the second aspect of ground 3 should fail in relation to the arrest warrant insofar as it concerns the 27 February 2017 orders and the first charge of contempt. Because the two bases for the arrest warrant are independent, the erroneous part of the arrest warrant is severable and, accordingly, ground 3 must fail overall.