Plaintiff v Defendant

2 I have determined to grant the plaintiff's application for the reasons which follow.

3 Carol Margaret Brown (the deceased) died on 5 May 2015. The plaintiff is the deceased's daughter and beneficiary under the deceased's will made on 20 September 2002. The defendant is the deceased's son and the executor of her estate. Probate of the deceased's will was granted to the defendant on 29 June 2015.

4 On 15 June 2018, the plaintiff commenced this proceeding by originating motion seeking that the defendant provide an account of his administration of the deceased's estate and an order that he make final distribution of the estate, or alternatively, an order that he be removed as executor of the estate.

5 The defendant did not appear in Court at the first return of the proceeding on 3 August 2018. On that day, the Court ordered the defendant to file and serve by 31 August 2018 a true and just account of his administration of the deceased's estate. The Court also ordered that, if the defendant failed to comply with the above order and did not appear at the further hearing of the application on 19 October 2018, on that occasion the Court would make orders including that the defendant be removed as the executor of the deceased's will and that the plaintiff be appointed in his stead. The Court ordered that the plaintiff personally serve an authenticated copy of the order made on 3 August 2018 on the defendant.

6 On 20 September 2018, the Court extended the time for the defendant to file an account of his administration of the deceased's estate to 12 October 2018. The Court also vacated the orders requiring personal service on the defendant of the orders made on 3 August 2018 and instead ordered that the orders dated 3 August 2018 be served on the defendant by post. In the orders made on 20 September 2018, the Court recorded its satisfaction that the originating motion, summons and supporting affidavit filed by the plaintiff were personally served on the defendant and that the plaintiff had made sufficient efforts to personally serve the defendant with the orders made by the Court on 3 August 2018.

7 The matter next came before the Court on 19 October 2018. On that day, Associate Justice Derham made orders including the following:

(a) an order removing the defendant as executor of the deceased's will;

(b) an order appointing the plaintiff as administrator of the deceased's estate with the will annexed;

(c) an order removing the defendant as trustee of the deceased's estate with the plaintiff being appointed as trustee in his place;

(d) an order that all of the real and personal property of the deceased vest in the plaintiff as trustee of the estate of the deceased;

By 2 November 2018 the defendant deliver to the plaintiff's solicitors all documents and records relating to the administration of the estate of Carol Margaret Brown and the trusts contained in the will, including, but not limited to, the file of any solicitor engaged by the defendant for the purpose of executing his duties as executor and trustee of the estate.

An authenticated copy of this order be annexed to the original grant of probate of the deceased's will dated 20 September 2002 made 29 June 2015 and the defendant deliver up the grant to the Registrar of Probates on or before 26 October 2018 for this purpose.

(g) an order that, by 22 October 2018, the plaintiff serve an authenticated copy of the order on the defendant by sending it by pre-paid ordinary post to the defendant's identified address.

On 19 October 2018, the Court also recorded its satisfaction that the orders made on 3 August 2018 had been served on the defendant in accordance with the orders made on 20 September 2018.

8 The matter next came before the Court on 14 June 2019. In an affidavit dated 13 June 2019, the plaintiff's solicitor deposed that, contrary to the orders of the Court made on 19 October 2018, the defendant had failed to deliver up the original grant of probate and had not provided the plaintiff with any documents relating to the administration of the deceased's estate. On that day, at the plaintiff's request and in light of the evidence before the Court, I made orders vacating the order referred to in subparagraph 7(f) above and further ordered that an authenticated copy of the order made on 19 October 2018 and the orders made on 14 June 2019 be annexed to the exemplification of probate of the deceased's will dated 20 September 2002 made 29 June 2015. I also ordered that the plaintiff serve by ordinary pre-paid post an authenticated copy of the order made that day on the defendant at his identified address.

9 On 30 July 2019, the plaintiff filed a summons requiring the defendant to appear before the Court on the hearing of an application by the plaintiff for punishment for contempt. The alleged contempt was said to be the failure of the defendant to comply with the orders made by Associate Justice Derham on 19 October 2018 by failing to deliver up the original grant of probate of the deceased's will and by failing to deliver up to the plaintiff's solicitors any documents and records relating to the administration of the estate of the deceased.

10 There was no appearance by the defendant at the return date of the plaintiff's summons for contempt on 9 August 2019. On that date, the Court ordered that the defendant appear in person before the Court on 23 August 2019 to answer the charge of contempt set out in the summons dated 30 July 2019.

11 The defendant did not appear before the Court on 23 August 2019. On that day, counsel for the plaintiff provided submissions as to why the Court should issue a warrant for the defendant's arrest to require him to appear before the Court to answer the charge of contempt. At the conclusion of the hearing that day, the Court ordered that the plaintiff file any further submissions addressing the source of the Court's power to make the order sought by the plaintiff. Those submissions were filed with the Court on 6 September 2019.

12 In support of her summons for contempt, the plaintiff relies upon an affidavit of Tammy Coulter affirmed 21 November 2018, affidavits of Simon Parsons affirmed 13 June 2019 and 22 August 2019, and an affidavit of service of Heather Ellis affirmed 5 August 2019. Having read those affidavits, I am satisfied that the defendant was served with the orders made by Associate Justice Derham on 19 October 2018 and that he is aware of their content. Further, there is evidence before the Court that he has not complied with those orders. I am also satisfied that the plaintiff's summons for contempt and affidavit of Simon Parsons affirmed 13 June 2019 were personally served on the defendant on 2 August 2019 in accordance with order 75.06(5) of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules). Further, I am satisfied that the orders made by the Court on 9 August 2019 requiring the defendant to appear in person before the Court on 23 August 2019 were served personally on the defendant on 19 August 2019. Copies of these orders were also sent by post to the defendant's home address which correspondence was returned to sender marked 'refused'.

13 The above matters and in particular the contents of the affidavit of Simon Parsons affirmed 13 June 2019 establish a clear prima facie case of contempt against the defendant. Although the Court could determine the contempt, as the plaintiff's summons and supporting material has been served on the defendant, it is well established that it is highly desirable that the respondent to an alleged contempt be before the Court to answer it.[1] This is so because of the serious nature of contempt proceedings, the possibility that the punishment for contempt may involve the loss of liberty and because, given the quasi-criminal nature of contempt proceedings, it is appropriate to have regard to the basic principle of the criminal justice system that, ordinarily, a trial for an indictable offence should be conducted in the presence of the accused.

14 As to the Court's power to issue a warrant to bring the respondent before the Court to answer a charge of contempt, the plaintiff submits that, in the circumstances of this case, rule 75.08.1 of the Rules provides an express source of power. Rule 75.08.1(1) provides:

75.08.1 Arrest pending contempt hearing

(1) If it appears to the Court that a party or other person bound by an order of the Court is guilty of contempt of court, and that the delay caused by proceeding in accordance with Rule 75.06 may cause serious or irreparable mischief, the Court may issue a warrant for the arrest of the person.

15 It is apparent that the power in rule 75.08.1 is engaged where two conditions are satisfied:

(a) first, where it appears to the Court that a contempt has been committed; and

(b) where 'the delay caused by proceeding in accordance with rule 75.06 may cause serious or irreparable mischief'.

16 For the reasons I have already given, the first of these conditions is satisfied. The affidavit of Simon Parsons affirmed 13 June 2019 clearly establishes a prima facie case of contempt by the defendant. As to the second requirement, it was submitted by the plaintiff that the serious mischief which justified recourse to rule 75.08.1 was the continued absence of the defendant. The continued failure by the defendant to appear before the Court is conducive of delay in the conduct of the proceeding in accordance with rule 75.06. I consider that this is likely to cause serious mischief, given that the usual course adopted in cases of this type is for the respondent to an application for contempt to be present in Court for the reasons referred to in paragraph 13. I further note the acceptance of rule 75.08.1 of the Rules as a source of power in analogous circumstances in Hera Project Pty Ltd[2]v Bisognin.2

17 Given the conclusion I have reached in relation to r 75.08.1, it is unnecessary for me to consider whether the Court has power to issue an arrest warrant in its inherent jurisdiction.

18 The Court will, accordingly, issue a warrant for the arrest of the defendant.

[1] See R v Bonacci [2015] VSC 121; Attorney-General for New South Wales v Hayden (1994) 34 NSWLR 638; Scott v O'Riley [2007] NSWSC 560.

[2] [2019] VSC 483 [22]-[23].