[His Honour's reference to the NSW case is to the Judgment of Talbot J in Bourke Shire Council v Dwyer 1993 79 LGERA 185 which I discuss below]
48 In Eurovox, Vincent JA in the leading judgment of the Victorian Court of Appeal referred to Nettle J's decision Primelife concerning the power of the Court to impose a fine for contempt where the order served did not include the penalty notice. After reciting the passage from Nettle J's judgment that I have earlier cited, Vincent JA said at par 38:
Whilst his Honour's concern about the possible unfairness of this approach is understandable, it is apparent, in my view, that a clear distinction is made in the Rules between the penalties of committal and sequestration on the one hand, and the imposition of a fine on the other. Order 66.10 is applicable only to the enforcement of orders by sequestration or committal. Under O 75.11 contempt may be punished, in the case of a natural person, by committal to prison or a fine or both. It does not seem to me that the absence of the endorsement required, if the order is to be enforced by possible imprisonment, would remove the power of the Court to impose a fine.
49 In my judgment, the failure of the Applicant to serve on the Respondent a sealed order within the times specified in the Court's Consent Orders containing the required penalty notice involving non-compliance with Part 42 Rules 8(1) and (3) entirely sustain the Respondent's legal objection to the competency of the Contempt Motion with the result that Part 42 r 8(1) precludes enforcement of the Court's Consent Orders by committal or sequestration.
50 This result is subject to my adjudication upon the Applicant's argument based upon two separate grounds, that non-compliance with Part 42 Rules 8(1) and (3) is not fatal to the Contempt Motion.
51 The first ground for the Applicant's argument is founded on Part 42 Rule 8(6). In support of this ground, the Applicant relies upon the judgment of Powell J in Fullerton v Gardiner (31 October 1978) being one of the Practice Decisions included in Ritchie's Supreme Court Procedure.
52 In that case, Powell J referred to Part 42 Rule 8(6) as conferring upon the Court the "discretion to proceed" notwithstanding that service of the Court's order sought to be enforced by committal or sequestration had not been effected in accordance with the Rule.
53 Citing Lewis (where Holland J had likewise interpreted Rule 8(6) as conferring a discretion), Powell J stated that "the discretion is one which will normally be exercised sparingly, and only if there are good grounds". In the event, his Honour exercised the discretion conferred by Rule 8(6) giving the following reasons:
This, however, seems to be a case in which the discretion should be exercised, for it is clear that the plaintiff not only knew of, and consented to, the terms of the injunction presently under consideration, but was present in court when the formal orders were made. Further, it is clear, even if I accept his evidence in its entirety, that the plaintiff appreciated, at the very least, that if he assaulted the defendant he would be in breach of the injunction, that he appreciated that any attempt to remove the child from the defendant's care would be wrong, and, finally, that he appreciated that if he acted in defiance to the order of the court he would render himself liable to some form of penalty, which penalty, so he thought, would take the form of a fine of a bond to be of good behaviour.
54 The Applicant relies on his evidence that the Respondent was in Court when Talbot J made the Consent Orders on 20 May 2004, having earlier in the day, together with his Counsel, signed the handwritten draft form of those orders. It may safely be assumed that it was that handwritten draft that was handed to Talbot J when he propounded the Consent Orders (and the typed minute of those orders would have been issued subsequently by the Registrar).
55 The Applicant also relies upon the fact that the correspondence passing between the parties' Solicitors and the Respondent's affidavit filed in the proceedings (parts of which the Applicant tendered in his case), clearly demonstrated that the Respondent was aware of the Consent Orders.
56 But as I have earlier noted, the first allegation made by the Applicant of the Respondent being in Contempt of Court occurred in the Applicant's letter dated 15 January 2005 (being a date after the expiry of all of the times specified in the Consent Orders for either the carrying out of physical works or the registration of the required easements). But more importantly, for present purposes, there is nothing in those documentary materials or in the circumstances in which Talbot J on 20 May 2004 made the Consent Orders which remotely warned the Respondent of his liability to imprisonment or sequestration if he refused or neglected to do the required acts within the times specified by the Consent Orders.
57 The absence of the penalty notice and the lack of precise warnings of the risk of imprisonment in the substitutionary communications given to the contemnor in Lewis, were held to be crucial procedural deficiencies.
58 In my judgment, the Applicant has not made out a case of special circumstances that would justify the Court to exercise the discretion conferred upon it by Rule 8(6) of Part 42.
59 The circumstances of the present case are very far removed from the circumstances (including the knowledge of the contemnor of the likely consequences of his disobeying the order) which inclined Powell J in Fullerton to exercise the discretion conferred by Rule 8(6).
60 Accordingly, the first ground of the Applicant's argument must be rejected.
61 The second ground for the Applicant's argument that non-compliance with Part 42 Rules 8(1) and (3) is irrelevant to the Court's power to punish contempt by the imposition of a fine finds support in the Victorian decisions in Primelife and Eurovox where in each case, having held that the failure of the served orders to include the requisite penalty notice, although precluding the enforcement of the order by attachment or sequestration did not exclude the Court's power to punish the contemnor by the imposition of a fine.
62 In Primelife, Nettle J reached that conclusion with "some diffidence" and in Eurovox, although Vincent JA thought that the question was "not clear", he held the answer to emerge from the "clear distinction made in the Rules between the penalties of committal and sequestration on the one hand and the imposition of a fine on the other". (His Honour was there referring to Orders 66.10 and Order 75.11 of the Victorian Court Rules which are similar to SCR Part 42 Rule 8(3) and Part 55 Rule 13.)
63 Senior Counsel for the Respondent submitted that the Victorian decisions turned on the Victorian Rules and the facts of the cases where it was obvious that each proceeding had sought the punishment of the contemnor for a past breach of court orders (which breach was incapable of being remedied by coercion). Accordingly, so it was submitted for the Respondent, the Victorian decisions are to be understood as examples of the Court considering the question of punishment for a contempt of Court by virtue of disobedience of Court orders. They were not cases involving the enforcement of Court orders by the Contempt process.
64 For these reasons, the Respondent submitted that the Victorian cases were distinguishable from the present case where the Applicant's Contempt Motion from first to last has been for the enforcement of the Court's Consent Orders by coercing the Respondent to do the acts that the orders required to be done by him.
65 The Respondent submitted that Applicant's belated attempt to invoke the Court's power to punish by way of fine, the Respondent as a contemnor, was nothing more than an opportunistic attempt to avoid the failure of the Applicant's Contempt Motion on account of the Applicant's failure to comply with Part 42 Rules 8(1) and (3).
66 Moreover, as I have earlier noted, the Respondent submitted that it is not now open to the Applicant, having regard to the manner in which the Contempt Motion has been prosecuted by him to attempt to convert the Contempt Motion for the enforcement of the Consent Orders into a Motion for the punishment of the Respondent.
67 This was because such a belated opportunistic forensic manoeuvre was both procedurally unfair, particularly in the context of contempt proceedings (inasmuch as the Applicant had consistently presented the Contempt Motion as the means of enforcing the Consent Orders by seeking the coercive remedies of imprisonment and sequestration) and substantively unfounded (inasmuch as no case of "wilful" disobedience on the part of the Respondent sufficient to justify punishment by fine, had been sought to be made out).
68 Notwithstanding some ambiguity in the content of the Applicant's Contempt Motion (as set out in par 7 of these reasons), the purpose and object of that Motion that has been consistently declared by and on behalf of the Applicant (both in and out of this Court) has always been to coerce the Respondent to comply with the Consent Orders.
69 As originally presented, the clear object of the Contempt Motion was to enforce the Consent orders rather than to punish the Respondent.
70 Although as a result of action taken by the parties in accordance with the interlocutory hearings conducted by McClellan CJ, the position had been reached by the end of July 2005 where the physical works required to be done, were generally completed to the Applicant's general satisfaction, continuing dispute over the question of costs and the registration of the required easements in favour of the Applicant's land had driven the parties to engage in a contested trial on the Contempt Motion, the purpose and object of the Motion did not materially change (from being coercive and remedial to being punitive) except that a chief stake had become the very considerable legal costs that had been incurred in the proceedings.
71 In these circumstances, I think that the Respondent's submission should be accepted that it is simply not open to the Applicant to unilaterally change the essential complexion of the Contempt Motion in a belated and desperate attempt to overcome the fatal consequences for the Applicant's Contempt Motion (by way of enforcement of the Consent Orders) caused by procedural failures in terms of Part 42 Rules 8(1) and (2).
72 Of course this conclusion does not involve any questioning of the existence of the power of the Court "in some circumstances to imprison or fine by way of punishment for civil contempt" (per McHugh J in Witham at 542). Rather, it is simply to say that punishment of the Respondent for contempt was never an object of the Applicant's Contempt Motion, until that Motion was perceived at the end of the trial to be foundering on the Applicant's failure to comply with Part 42 Rules 8(1) and (3). (It may have been a different matter if the Applicant had sought leave to amend the Contempt Motion to make it clear that he was seeking the punishment of the Respondent for his past failures to comply with the Consent Orders, but any such application would have needed to be made well in advance of the trial of the Motion so that the Respondent would know the case he had to meet at trial.)
73 For the Applicant to seek to salvage his case on the Contempt Motion (to obtain a costs order against the Respondent and some coercive remedy in respect of the Respondent's obligation to create and register the required easements) by making a bare or theoretical reference or appeal to the power of this Court to impose a fine by way of punishment for civil contempt, without having attempted to make out a case that such a judicial response would be appropriate in this case, is a disingenuous attempt to obtain a finding of contempt on the basis of a procedurally flawed contempt process.
74 Finally, I would note that the circumstances of the present case (especially in terms of the conduct of the Respondent) bear no relationship to the Primelife and Eurovox cases. Likewise they are very different from the facts in Bourke Shire Council v Dwyer (the decision of Talbot J cited and followed by Nettle J in Primelife) where his Honour, having found the contemnor guilty of a charge of contempt (to which the defendant had pleaded guilty) held that the failure to serve a copy of the Court orders bearing the endorsement of the penalty notice prescribed by Part 42 Rule 8(3) "was not an impediment to imposing a monetary penalty".
75 The reasons for the imposition of a fine in that case were stated by his Honour at 186/187 as follows:
There can be no doubt that the acts of the respondent were deliberate and the disobedience of the orders made was wilful.
Section 23 of the Land and Environment Court Act 1979 (NSW) enables this Court to make orders of such kind as the Court thinks appropriate.
The rationale of the power of the Court to punish for contempt is that it is necessary to uphold the effective administration of justice by the Court.
In the present case, the disobedience of the Court's orders by the respondent is accompanied by public defiance. The disobedience was not casual, accidental and unintentional. It is in the public interest that a contempt of this character should be punished.
The orders of the Court have been held up to ridicule and the Court is not prepared to tolerate that behaviour.
The respondent is convicted of contempt as charged and fined the sum of $1,500.
76 Finally, I should mention in this context that at the trial on the Applicant's Contempt Motion, the evidence of contempt by the Respondent of the Court's consent orders did not seek to establish anything other than the fact that the physical works required to be undertaken by the Respondent within the times specified (generally two months from the date of the Consent Orders) had not been completed within those specified times and likewise that the easements required to be created and registered by the Respondent within the specified time (within 7 days of payment by the Applicant of the sum of $5,000) had not been created and registered within that specified time. In short, there was nothing in the Applicant's evidentiary case that suggested that the failures by the Respondent to do the required acts within the specified times were caused by any defiance, obduracy or contumacy on the part of the Respondent or indeed by any "wilfulness" on his part other than in the sense of that term adopted by Warrington J in Stancomb v Trowbridge Urban Council (1910) 2 Ch 190 at 194:
In my judgment, if a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach of the injunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order. I think the expression wilfully in Order XLII, r. 31, is intended to exclude only such casual or accidental and unintentional acts as are referred to in Fairclough v. Manchester Ship Canal Co. [[1897] W.N. 7.]