mixed. The Court found personal service and disobedience proved, but declined to impose a fine or other further sanction. It ordered Andrejic to pay the plaintiff's party-and-party costs, allowing the costs...
Key principles
For a civil contempt application, the alleged contempt must be proved beyond reasonable doubt. In this case, that required proof that the order was personally served and that it...
Under r 6.03, where a person declines or fails to accept a document, personal service may be effected by putting it down in the person's presence and telling them the nature of...
The absence of the warning endorsement required by r 66.10(3) prevented committal or sequestration in this case, and the Court declined to dispense with that requirement ([117]).
The Court had power to impose a fine for civil contempt even though the served order lacked the r 66.10(3) endorsement, but a fine should not be imposed unless the contempt is...
Issues before the court
Was the order for oral examination personally served in accordance with r 6.03?
Did Andrejic disobey the Master's order?
Plain English Summary
The Court accepted that Andrejic had been personally served with the examination order after he declined to take it, and that he failed to attend as ordered. But the copy served did not carry the formal warning required before committal or sequestration, and the Court would not overlook that defect. A fine was still legally possible, but the Court was not satisfied beyond reasonable doubt that Andrejic deliberately disobeyed an obligation he understood. Because he had eventually attended and complied, and the arrest had already served deterrent purposes, no further sanction was imposed. He was ordered to pay Primelife's costs on a party-and-party basis, with certain costs allowed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,176 words · generated 30/09/2026
What happened
Primelife Corporation Ltd applied to the Supreme Court of Victoria for punishment of the second defendant, Zlatko Andrejic, for contempt. The alleged contempt was his failure to attend an oral examination ordered by a Master, concerning the means available to satisfy unpaid costs orders in Primelife's favour. The application was made under r 75.05 of the Supreme Court (General Civil Procedure) Rules 1996 ([2]).
Did the missing r 66.10(3) endorsement prevent committal or sequestration?
Could the Court impose a fine despite the missing endorsement, and was a fine warranted?
Cited legislation
No linked legislation citations have been extracted yet.
The examination order followed two unpaid costs orders totalling about $20,000 ([15]). On 29 April 2002, the Master ordered Andrejic to attend for examination on 11 June 2002 ([30]). Primelife relied on evidence that its process server, Geoffrey Birch, attempted to serve the order and $40 conduct money at the Chelsea RSL Club on 27 May. Birch said Andrejic walked past him and declined to take the documents, so Birch put them in Andrejic's path and said, “You're served” ([33], [61]).
Andrejic gave a different account. He said that he had not understood Birch's approach and walked away. In cross-examination he described a panic or anxiety attack and accepted that Birch might have said the words set out in Birch's affidavit, although Andrejic said that his mind had not taken in what followed the mention of Birch's name ([70], [73]). Nettle J preferred Birch's evidence, noting that Andrejic's account substantially confirmed it and that the parts not confirmed were uncontradicted ([82]).
Andrejic did not attend on 11 June. A warrant was issued, and he was arrested on 25 June 2002 ([36], [39], [42]). After he was brought before the Court, he was ordered to attend for examination on 7 August. He attended and complied, producing documents and apparently answering questions fully and frankly ([47], [50]).
The application therefore raised several distinct questions: whether service had been proved, whether the service met the requirements of r 6.03, what followed from the missing warning endorsement under r 66.10(3), and whether any further sanction was justified after compliance.
Why the court decided this way
The Court began from the strict standard of proof applicable to civil contempt. Nettle J stated that the plaintiff had to prove beyond reasonable doubt both personal service of the order and disobedience of it ([57]). That standard shaped the Court's treatment of service, Andrejic's conduct and the possible penalty.
Rule 6.03 allowed personal service by either leaving a copy with the person, or, if the person did not accept it, putting the copy down in their presence and telling them the nature of the document ([86]). The Court was not satisfied that the first method had been used. The encounter took place in an open and unusual setting, and the judge considered that the rule's idea of leaving documents with someone contemplated a place or circumstances providing a relatively confined environment ([93]).
The second method was different. The Court accepted Birch's evidence that Andrejic walked away and refused to accept the papers. Birch had identified himself, said he had documents to serve, held them out uncovered, put them in Andrejic's path and announced that Andrejic was served ([61], [96]). The Court considered that the evidence established non-acceptance and that the other requirements of the second method were met ([96]). It also noted that the law did not require an elaborate explanation of a document's contents to satisfy the obligation to tell the person its nature ([86]).
Once service was established, Andrejic's non-attendance until his arrest established disobedience ([100]). That did not resolve the question of punishment. The copy served on Andrejic lacked the endorsement required by r 66.10(3), warning that non-compliance could lead to imprisonment or sequestration ([54], [117]). Nettle J treated that omission as a substantial procedural defect for committal or sequestration. Relying on the approach in Clifford v Middleton, the Court considered that proceedings affecting liberty called for strictness, and refused to dispense with the endorsement requirement ([117]).
The Court separately considered a fine. It accepted that authority supported a power to impose a fine for civil contempt, even where the endorsement required by r 66.10(3) was absent. Nettle J acknowledged the fairness concern that a person should not be more readily fined than committed without the prescribed warning, but followed the contrary approach taken in New South Wales and the Federal Court ([127], [130]). That conclusion established power, not an automatic entitlement to impose a fine.
The Court then considered whether a fine was appropriate. It stated that a fine should not be imposed unless the contempt was wilful, and even then only if specific or general deterrence justified it ([133]). Although the judge was inclined to think Andrejic had treated court processes casually, the contempt standard also applied to aggravating facts relevant to penalty ([139], [142]). The judge was not satisfied beyond reasonable doubt that Andrejic had knowingly and deliberately refused to comply with an obligation whose nature he understood. One reasonable possibility was that he believed that not reading the order meant he would not be bound by it. The judge described that as ignorant and arrogant, but not conduct directed at the Court ([145]).
Finally, the Court considered what had already occurred. The arrest had achieved compliance, Andrejic attended and answered the examination, and the judge considered the arrest and its circumstances sufficient for specific and general deterrence. No further sanction was imposed ([148]).
Before and after state of the law
The judgment applied the procedural rules and authorities available to it in March 2003. It did not purport to change the text of rr 6.03 or 66.10(3). Its principal contribution in this dispute was to apply those rules to an unusual attempted service and to explain the consequences of a missing endorsement.
On service, the Court used the two routes in r 6.03 as distinct alternatives. If the recipient accepts the document, the first method concerns leaving a copy with them. If the person does not accept it, the second method requires the server to put it down in the person's presence and tell them its nature ([86], [89], [96]). The Court's conclusion was fact-sensitive: the attempted service did not satisfy the first method, but did satisfy the second.
On enforcement, the Court treated the warning endorsement as a safeguard for committal or sequestration. The endorsement was absent, and the judge declined to excuse the defect, emphasising strict procedure where liberty is at stake ([117]). The judgment also distinguished that issue from the power to fine. It concluded that the absence of the endorsement did not remove the power to impose a fine, while making clear that a fine still required appropriate grounds, including wilfulness and deterrence ([130], [133]).
The judgment does not establish that every failure to attend an examination is contempt, or that every defective endorsement prevents every form of sanction. Its conclusions are tied to the rules and evidence before Nettle J. Nor does the supplied judgment include later decisions applying or reconsidering this case. Accordingly, the later state of the law cannot be established from this source alone.
Key passages with plain-English translation
At [57], the Court said the plaintiff had to prove beyond reasonable doubt that the order was personally served and disobeyed. In plain English, the usual civil balance-of-probabilities standard did not apply to proving the alleged contempt. Both the required service and failure to comply had to meet the higher standard.
At [86], the judgment described the two methods of personal service. A server can leave a copy with the person. If the person does not accept it, the server can put the copy down in the person's presence and tell them what kind of document it is. The Court added that a detailed explanation of the document is not required.
At [96], the Court found that Andrejic had not accepted the papers and that Birch's actions met the second service method. The practical significance is that declining to take a document did not, on these facts, prevent service from being effective.
At [117], the Court said that proceedings capable of affecting liberty required “the utmost strictness in procedure and proof”. In context, the Court used this reasoning to refuse to dispense with the warning endorsement needed for committal or sequestration.
At [145], the Court was not satisfied beyond reasonable doubt that Andrejic had deliberately refused to comply with an obligation he understood. The judge's distinction was between conduct that was careless, ignorant or arrogant and a knowing refusal directed at the authority of the Court.
At [148], the Court concluded that neither a fine nor another sanction was warranted. That outcome followed not from a finding that service had failed, but from the procedural bar to committal or sequestration and the failure to prove wilfulness to the required standard for a fine.
What fact patterns trigger this precedent
The judgment is relevant to disputes where a party alleges civil contempt for failure to comply with an order and the alleged contemnor disputes receiving the order. In particular, it addresses attempted personal service where the recipient appears to decline or avoid accepting the document. The Court's analysis calls attention to whether the server left the document with the recipient, or instead used the alternative method by placing it in their presence and stating its nature ([86], [93], [96]).
It is also relevant where a party seeks committal or sequestration based on an order served without the warning endorsement required by r 66.10(3). The decision illustrates the Court's insistence on that safeguard in the circumstances before it ([117]). The judgment separately addresses a requested fine, so it may be useful where the available forms of sanction are argued to have different procedural requirements ([127], [130]).
Finally, it is relevant to the assessment of penalty when the alleged contemnor has eventually complied. The judgment considered whether arrest, subsequent attendance and examination had already achieved coercion and deterrence, and whether additional punishment was needed ([121], [124], [148]). It also demonstrates that an apparently suspicious or evasive course of conduct does not dispense with proof beyond reasonable doubt of aggravating matters relied on for penalty ([142], [145]).
These are descriptions of issues the judgment addresses, not conclusions about how another dispute would be resolved. The precise rules, evidence, and procedural history in any later matter would need to be checked against the sources applicable to that matter.
How later courts have treated it
The supplied judgment does not cite any later cases, which is unsurprising given its date of 26 March 2003. It therefore cannot establish how later courts treated Primelife Corporation Ltd v NewPark Pty Ltd & Andrejic. No subsequent application, approval, distinction or reconsideration can responsibly be stated on the basis of the material provided.
The decision itself draws on earlier authorities. For personal service, it refers to Taylor v Mamarmis, Lawindi v Elkateb, Australian and New Zealand Banking Group Limited v Rostkier and Ainsworth v Redd ([86], [89], [96]). In relation to the missing endorsement, it follows the approach in Clifford v Middleton ([117]). On the power to fine despite that defect, it refers to decisions from the Federal Court and New South Wales, including Windsurfing Inc v Sailboards Pty Ltd and Bourke Shire Council v Dwyer ([127], [130]).
For contempt proof and penalty, the judgment refers to Witham v Holloway, R v Storey and Cheung v The Queen ([57], [142]). These citations show the reasoning Nettle J adopted in 2003. They do not, by themselves, provide a record of later treatment of this judgment.
Still-open questions
The judgment leaves some questions unresolved or outside the issues it needed to decide. First, its conclusion about the fine power was reached “with some diffidence” ([130]). The decision states that a fine could be imposed despite the missing endorsement, but the supplied reasons do not provide a comprehensive analysis of every possible interaction between rr 66.10(3) and 75.11.
Second, the Court found the second service method satisfied on a particular combination of conduct: Birch identified himself, stated that he had documents for service, held them out uncovered, put them in Andrejic's path and said that he was served ([61], [96]). The judgment does not set a universal threshold for every situation where a recipient walks away, fails to respond or is unable to take in what is said.
Third, the judgment found disobedience but declined further punishment. It does not suggest that proof of service and non-attendance will always establish wilfulness. The Court's separate analysis of intention shows that the nature of the order as understood by the alleged contemnor, and the explanations reasonably open on the evidence, mattered to the penalty question ([145]).
Fourth, the judgment treated the arrest and later compliance as sufficient for deterrence in this case ([148]). It does not specify how much weight those events would carry in circumstances involving continuing non-compliance, repeated breaches, or a different procedural defect. Those issues would require examination of the facts and authorities applicable to the later case.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Practice and Procedure - Contempt of Court - Failure to comply with an order to attend for oral examination - Whether order personally served - Whether contempt was wilful - Order not indorsed in accordance with Rule 66.10(3) - Whether power to impose a fine -- Relevance of specific and general deterrence - Supreme Court (General Civil Procedure) Rules 1996, rr. 6.03, 66.10(3), 75.05 and 75.11.
[3]
This is an application pursuant to Rule 75.05 of the Rules of Court for orders for the punishment of the secondnamed defendant, Zlatko Andrejic, for contempt of court. The contempt which is charged is that he failed to comply with an order of the Master of 29 April 2002 that he attend on 11 June to be examined as to the means available to him to satisfy a judgment for costs previously given in the proceeding in favour of the plaintiff. It is contended that the failure to comply with the order was in defiance of the authority of the court and that it had the tendency to interfere with or obstruct justice by rendering the order futile. Orders are sought that he be committed for contempt or otherwise dealt with in the manner that the court deems appropriate and for the payment of the plaintiff's costs on an indemnity basis.
[4]
The plaintiff relies for the purposes of the application on four affidavits of Geoffrey Mervyn Birch sworn 9 February 2001, 12 June 2002, 19 July 2002 and 6 August 2002, the affidavit of Benjamin Jeffrey Lloyd sworn 25 March 2002, the affidavit of Hartmut Buettner sworn 16 April 2002, and the five affidavits of Leonard Adrian Warren respectively affirmed 19 June 2002, 19 July 2002, 19 July 2002, 23 July 2002 and 11 December 2002. In previous rulings I have determined the passages of those affidavits and the exhibits to them which will be treated as admissible evidence. Birch and Warren were the only deponents whom counsel for Andrejic chose to cross examine.
[5]
Andrejic denies that he is guilty of contempt and relies upon his own affidavit sworn on 18 July 2002 and he has been cross-examined on that affidavit during the first and second days of the hearing.
[6]
The proceeding in which this application is made has a long and chequered history. Much of it is irrelevant to the question of contempt. A little more of it may be relevant to penalty.
[7]
In the past, several costs orders were made in favour of the plaintiff in a number of interlocutory applications. They have been taxed but they have not been satisfied. The order for oral examination arose out of the failure or inability of Andrejic to satisfy two of the costs orders totalling some $20,000. Events after that are largely concerned with service and the failure of Andrejic to appear.
[8]
Early on the morning of 27 March 2002 the plaintiff filed with the Prothonotary a document purporting to be a summons in which were sought orders for Andrejic's oral examination. Later that day during ordinary court hours application for the orders was made ex parte by counsel on behalf of the plaintiff. The summons was never served. The rules contemplate that such an application may be made ex parte[1], and it is not clear why the summons was brought into existence, but it is not suggested that any improper or irregular advantage was sought to be obtained by use of the summons and it is difficult to see how there could be. The orders made by the Master record that there was no appearance by the secondnamed defendant, as one would expect to be the case.
[9]
In his affidavit sworn by on 16 April 2002, Hartmut Buettner deposed to an attempt which he made on 4 April 2002 to serve the Master's order of 27 March 2002 on Andrejic on the footpath outside the Masters' Court building at 436 Lonsdale Street, Melbourne. He swore that upon approaching Andrejic on the footpath outside the building he handed the order to Andrejic and said to him the words: "This is for you"; that Andrejic accepted the order and looked at it and then passed it to a person who was with him; and that Andrejic then stepped back quickly into the building at 436 Lonsdale Street, Melbourne, and said to Buettner: "You did not serve me, you served him", at the same time indicating the person to whom he had handed the order.
[10]
Andrejic gave evidence in cross examination of a somewhat different version of events. He said that he was standing inside the court building at 436 Lonsdale Street when he was approached by Buettner; that the document which Buettner handed to him was of A4 size, but folded over three ways so as to obscure its contents; and that upon its receipt and without looking at it, he handed it to an associate called Simic who was standing with him. After that, he said, he presumed that Simic had taken the document away and he had never seen it again.
[11]
It may not matter which version is correct, except perhaps for penalty, and in one sense there is no difference of significance. It seems clear enough from Andrejic's evidence that he believed that service would not be effective if he were standing within the court at the time of service. That is not much different to the version of events deposed to by Mr Buettner, apart from the question of whether Andrejic looked at the contents of the document. To the extent that it does matter, I prefer Mr Buettner's evidence. It was not sought to challenge the evidence by cross examination, and in those circumstances I see no reason to doubt it.
[12]
On 29 April 2002 the matter was mentioned before the Master and the Master was told that Mr Buettner had omitted to provide any conduct money to Andrejic at the time of service. Thus it was not sought at that time to proceed with the oral examination. The Master was asked instead to make an order setting a new date for the commencement of the oral examination, and the Master did. It was ordered that the secondnamed defendant attend for oral examination on 11 June 2002.
[13]
In his affidavit of 29 May 2002, Mr Birch swore that he effected service of that order on Andrejic at the Chelsea RSL Club at 4 Thames Parade, Chelsea, Victoria at or about 6.43 pm on Monday 27 May 2002, by placing a sealed copy of the order together with the sum of $40 conduct money at Andrejic's feet .
[14]
When the matter came on for hearing before the Master on 11 June 2002, there was no appearance by Andrejic. Counsel who appeared for the plaintiff told the Master, as was the fact, that the original sworn version of Mr Birch's affidavit of service could not be located, but that counsel had in his possession a photocopy of the affidavit and he produced it to the Master. Upon reading that copy affidavit of service the Master referred the matter to the Judge in the Practice Court to enable application to be made to the Judge for the issue of a warrant to arrest Andrejic and bring him before the court pursuant to Rule 75.08.
[15]
The application for warrant came on before her Honour Justice Balmford in the Practice Court on 12 June 2002, and again there was no appearance by Andrejic. By that time, however, a further affidavit of service of the Master's order of 29 April 2002 had been sworn by Mr Birch and upon reading that affidavit her Honour made orders that a warrant issue for Andrejic's arrest.
[16]
In his affidavit sworn on 19 July 2002, Christopher Edwards Moore deposed that he is a Senior Sheriff's Officer and that on 24 June 2002 he was asked to execute the warrant which her Honour Justice Balmford had ordered be issued. He swore that at approximately 9.20 am on 25 June 2002 he spoke to Andrejic by telephone and identified himself and stated that he had a warrant for Andrejic's arrest from the Supreme Court for failing to comply with an order of a Master dated 29 April 2002. He told Andrejic that he needed to see him regarding the warrant and Andrejic replied that he believed that the matter had been "set aside" and that he would contact his solicitor. Sometime later Andrejic called back and said that his solicitor was unavailable for one hour. Andrejic did not, however, call back again. Accordingly, at approximately 1.55 pm on 25 June 2002 Mr Moore attended with another Senior Sheriff's Officer at Andrejic's home to execute the warrant. After knocking repeatedly on the front door and ringing the bell, he called out loudly the words:
[17]
"Zac, I am from the Sheriff's Office. I have a warrant. If you don't open the door I will be forced to break down your front door - I will give you 5 minutes to comply."
[18]
Some 20 to 25 seconds later a lady answered the door, and after further developments of which the nature is not directly relevant for present purposes, Mr Moore and the Sheriff's officer accompanying him effected Andrejic's arrest.
[19]
Andrejic was brought before Justice Balmford on 25 June 2002 when arrangements were made for him to be bailed, and her Honour ordered that the plaintiff's application for Andrejic's committal for contempt be adjourned to a day to be fixed. On 28 June 2002 her Honour ordered that Andrejic attend for oral examination before the Master on 7 August 2002.
[20]
The oral examination came on for hearing before the Master on 7 August 2002 in accordance with her Honour's order, and on that occasion Andrejic attended and complied with the order by producing the documents mentioned in it and, as it would appear, answering all questions fully and frankly. Since then the plaintiff's application that he be committed for contempt has been adjourned a number of times and thus it now comes before me for hearing.
[21]
Rule 75.6 of the Rules of Court provides that where a contempt is committed by a party in relation to a proceeding in the court the application shall be made by summons in the proceeding. Rule 66.06 provides that where a person defaults in attendance in compliance with an order of the court for the purpose of giving evidence or for the production of a document, or for any other purpose, the court may make an order for the issue of a warrant to the Sheriff for the arrest of the person, and for his production before the court, and for the payment of costs. Rule 66.10 provides, however, that a judgment shall not be enforced by committal or sequestration unless a copy of the judgment is served personally on the person bound and it is endorsed with a notice naming the person served that he will be liable to imprisonment or to sequestration if he fails to comply. The order of the Master of 29 April 2002 was not indorsed in accordance with Rule 66.10.
[22]
Contempt of the kind with which Andrejic is charged is a civil contempt but he is not liable to be punished for the contempt unless the contempt is proved by strict proof beyond reasonable doubt[2]. It follows that in order to succeed in this application the plaintiff must establish by strict proof beyond reasonable doubt that the order of the Master of 29 April 2002 was personally served on Andrejic and that he disobeyed it by failing to comply with its terms.
[23]
The three affidavits of Geoffrey Mervyn Birch of 12 June 2002, 19 July 2002 and 6 August 2002 make plain that Birch did attend at the Chelsea RSL on 27 May 2002 and that he had in his possession the order of the Master and $40 cash conduct money for the purpose of service on the secondnamed defendant. According to Birch, he then positioned himself at a table at the club with his back to the door and waited for Andrejic to arrive. When Andrejic did arrive Birch stood up and said to him:
[24]
"Mr Zlatko Andrejic. Geoffrey Birch. I have documents to serve on you in relation to Primelife".
[25]
Andrejic attempted to ignore him and started to walk past him, but Birch walked with Andrejic on his right-hand side, side on to him, with the order and two twenty dollar notes held out towards him, and Birch said to him:
[26]
"If you don't take them I will have to drop them at your feet".
[27]
Andrejic continued to ignore Birch and thus Birch threw the order and the two $20 notes in front of him and as he stepped over them Birch called out to him:
[28]
Andrejic still ignored Birch and did not pick up the documents and so Birch left.
[29]
According to Andrejic's affidavit of 18 July 2002, Andrejic walked into the Chelsea RSL building on 27 May 2002 to attend a weekly Rotary meeting of which he was then the President. He said he walked into a large ballroom with tables where a man who had been sitting behind a door approached him. The man, whom he did not know, walked over to him saying the words "Geoffrey Birch". He thought that the man was asking Andrejic if Andrejic's name were Geoffrey Birch and he was "somewhat intimidated" by the man, and thus continued walking to the other end of the ballroom. He did not turn around until he reached the other side of the room and he said that when he did the man had gone.
[30]
If there were nothing more to the evidence on service than those two affidavits there would be some difficulty in deciding whether the order had been served. Although I prefer the evidence of Birch, I do not think that that would be enough of itself to satisfy the standard of proof required. As matters have turned out, however, the position has been clarified greatly by the evidence given by Andrejic in cross examination, for according to that evidence, as soon as Andrejic heard Birch say "Geoffrey Birch", Andrejic went into a panic attack which caused him to walk away. To use his own words:
[31]
"a panic attack, an anxiety attack, and I just walked. I looked at one stage, he was still walking behind me. That even went further, so obviously my senses became blurred, visual, hearing, whatever."
[32]
Further, when pressed with the question of whether or not Birch had spoken the words that Birch deposed to in his affidavit, Andrejic conceded that they could have been spoken. Again, to use Andrejic's own words:
[33]
"it could have been, or it could have been the man wanting me amorously and proposing to me, who knows what, but I did not hear, my mind blocked out everything after that. I just do not recall it."
[34]
And yet again at another stage in the cross-examination Andrejic swore:
[35]
"I mean nothing further, I did not recall in my mind anything, or my mind did not accept the recall of anything. He (meaning Birch) might have been saying all sorts of things, nice things, I don't know, but I did not recall in my mind anything that was said after the words, Birch, Geoffrey Birch... ... so when I say that I heard nothing, my memory did not recollect anything, he may have said things that I did not accept into my mind I have, that I have, that I am in contempt, or in perjury for putting something in an affidavit that is not technically legalistic. Can we just have that little bit of space here, please? Not play with words. I didn't, my mind didn't accept anything. He might have been saying all sorts of things to me, I don't know."
[36]
There are some further passages to similar effect, but I do not think that I need to mention them specifically. The tone of them is very much the same.
[37]
In this state of the evidence it seems to me that there is every reason to accept the evidence given by Birch. To a considerable extent it is confirmed by the evidence given by Andrejic and to the extent that it is not it stands uncontradicted.
[38]
I turn to the question of whether what was done constituted good service. Rule 6.03 of the Rules of Court provides that personal service may be effected by leaving a copy of the subject document with the person to be served or, if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document. Authority establishes that not a great deal is required in order to "tell the person the nature of the document". It is certainly not necessary to explain in any detail or even to identify in any detail what is said in the document. Indeed it is enough that the process server hand to the defendant a document which is clear on its face and not contained in an envelope.[3]
[39]
In the course of a number of helpful submissions on the law relating to service Mr Schlicht referred to the unreported decision of Batt J in Australian and New Zealand Banking Group Limited v Rostkier[4], in which his Honour dealt with the inter-relationship between the two methods of service which are provided for in Rule 6.03 and a number of authorities, including in particular the decision of the New South Wales Court of Appeal in Ainsworth v Redd[5]. His Honour concluded that the availability of the second method is conditioned upon the person proposed to be served actively refusing in some fashion to accept what is attempted to be served. As his Honour put it:
[40]
"Accordingly, when an issue is raised as to whether personal service has been effected in accordance with r 3 the first question which needs to be answered is whether or not the proposed recipient declined to accept the document. If he did then it is incumbent upon the person seeking to establish that service was effected to show that there had been compliance with the second mode of service described in r 3. If, on the other hand, it is not shown that the recipient declined or failed to accept the document, then it is necessary merely to leave the document with him. In this instance there is no obligation, either express or implied, imposed on the server to inform the proposed recipient of the nature of the document or to read it to him. Nor is there any obligation on the server to take any steps to bring to the notice of the recipient the nature of the document which he is endeavouring to serve. All that he has to do is to leave a copy of the document with the recipient."
[41]
I am not satisfied that the order of the Master of 29 April 2002 and the conduct money were served in accordance with the first of the methods provided for in Rule 6.03. Having regard to the open and unusual circumstances in which the documents were attempted to be served, it is not clear to me that they were left with the secondnamed defendant in the sense in which that term is used in the rule. To my way of thinking the rule uses the term in the sense of leaving documents with someone at a place, or within a room, or in some other circumstances which establish a relatively confined environment, which was not the case here.
[42]
I am satisfied, however, that the evidence shows beyond reasonable doubt that the order of the Master of 29 April 2002 and the conduct money were served in accordance with the second method of service provided for in Rule 6.03. In my opinion Birch's uncontradicted evidence of Andrejic walking away and refusing to take the documents when asked to do so proves that there was a non-acceptance of the documents in the sense described by Batt J, and I regard the other requirements of the second method of service as plainly satisfied by Birch's actions in saying that he had documents for service, holding the documents out uncovered, launching them into the path of Andrejic so that he walked over them and finally proclaiming "you are served"[6].
[43]
It is not in dispute that Andrejic did not attend in answer to the order until he was arrested by the Senior Sheriff's Officer and brought before the court. Personal service of the order having been established beyond reasonable doubt, it follows that the secondnamed defendant is shown to have disobeyed the order[7].
[44]
It was submitted on behalf of the secondnamed defendant that despite proof of service there were a number of reasons why he should not be found guilty of contempt, or at least should not be punished or otherwise dealt with for contempt for failing to comply with the Master's order:
[45]
* First, it was submitted that because a summons had been filed on 27 March 2002 before application was made that day to the Master for an order for oral examination, the application must be treated an inter partes application, which was bad for want of service, and it and everything which had followed it was vitiated by that failing.
[46]
* Secondly, it was submitted that inasmuch as the only affidavit of service which was before the Master on 11 June 2002 was the copy affidavit of Mr Birch of 29 May 2002, there was no valid affidavit of service, and thus no basis for the Master to refer the matter to the Judge in the Practice Court, and so everything which followed was a nullity.
[47]
* Thirdly, it was submitted that because the order of the Master of 29 April 2002 was not indorsed in accordance with Rule 66.10, Andrejic's failure to comply with the order could not be visited with committal or sequestration.
[48]
I do not think that there is any substance in the first of those submissions. It is plain upon the evidence that a document purporting to be a summons was filed with the Prothonotary at or about 9.30 on the morning of 27 March 2002 before application was made ex parte for orders for the oral examination of the secondnamed defendant. It is also true upon the evidence that the document purporting to be a summons was not served upon the secondnamed defendant either before or after the application was made. But the rules allow for an application for orders for examination to be made ex parte, and the fact that the summons was filed does not make an application which was made ex parte cease to be an application made ex parte. Either the summons was of no significance whatever, which I think is probably the case or, as sometimes happens, the summons was filed in the expectation that it would be served for the purposes of founding an application inter partes but then for one reason or another it was not served so that the application proceeded ex parte. In any event, even if there were any substance in the point, and I do not consider that there is, the Master's order once made stands until and unless it is set aside or varied upon appeal. There has been no application to have it set aside or varied and thus its validity is to be presumed.
[49]
Equally I do not think that there is any substance in the second submission. Whether or not the Master had an affidavit of service before him, and for present purposes I need not consider whether the photocopy could be regarded as such, it was open to the Master if he considered it to be appropriate, to refer the matter to the Judge in the Practice Court. In any event his order stands and is presumed to be valid until and unless it is set aside or varied upon appeal,
[50]
Contrastingly, the third submission is a point of substance. The sealed copy of the order which was served on Andrejic was not indorsed in accordance with Rule 66.10(3) and thus, unless the requirement is dispensed with[8], Andrejic may not be committed or dealt with by sequestration[9]. It was urged on me on behalf of the plaintiff that I should exercise the power to dispense with the requirement for the indorsement, but I am not disposed to do so. In my opinion, I should follow the approach adopted by Kaye J in Clifford v Middleton[10]. Attachment proceedings being penal and affecting the liberty of the subject warrant the utmost strictness in procedure and proof. The purpose of the indorsement is to warn the party of the consequences which might befall him should he fail to perform the act directed. It is not to be dispensed with in a case like this whether or not it would have been read.
[51]
I turn therefore to the question of whether it is appropriate to impose any other penalty or sanction on the secondnamed defendant for his failure to comply with the order of the Master. The court may impose sanctions for contempt of court on the ground of disobedience of an order for the purposes of coercing compliance and for the purposes of punishing the contemnor for non compliance. The aim of contempt sanctions in civil proceedings is primarily coercive or remedial, but it is recognised that a punitive aim is warranted to vindicate the authority of the court.
[52]
In this case, there is no longer need for coercion of compliance. The warrant for arrest issued on the order of Balmford J was adequate to achieve that objective. The only question is whether it is necessary to impose some additional sanction in order to vindicate the authority of the court, which is to say to bring home to the secondnamed defendant that he may not flout the authority of the court with impunity, and to bring home to others the importance of complying with the court's orders.
[53]
The court has power to impose a fine for contempt of court in the case of a civil contempt, if it is thought appropriate to do so[11]. But it is said in Williams CivilProcedure in Victoria that a fine may not be imposed if the order served is not indorsed in accordance with Rule 66.10(3)[12]. Although the rule does not refer to fines, and it would appear that the sanctions of committal and fine are used in contradistinction in Rule 75.11 of the Rules, the thought seems to be that there is no power to fine unless there is power to commit. Hence, if committal is prohibited by Rule 66.10(3), so too must be the imposition of a fine.
[54]
As a matter of fairness that view has a degree of appeal about it. It is difficult to see why a subject should any more readily be subjected to a fine than to committal or sequestration without the warning for which Rule 66.10(3) provides. But a different view of the matter has been taken in New South Wales and in the Federal Court[13] and I think that I should follow it. With some diffidence I conclude that there is power to fine even if an order has not been indorsed in accordance with the rule.
[55]
It is clear, however, that the court is not to impose a fine unless the contempt is wilful, and even then I do not consider that the court should impose a fine unless what might be described as the requirements of specific and general deterrence warrant the adoption of that course[14].
[56]
It has been urged on me on behalf of the plaintiff that the secondnamed defendant's disobedience was wilful as is demonstrated by, amongst other considerations, the way in which he endeavoured unsuccessfully to avoid service of process on 4 April 2002 at the court building at 436 Lonsdale Street, and the cavalier fashion with which he attempted to deflect the Senior Sheriff's Officer when the Senior Sheriff's Officer attended to effect his arrest in accordance with the warrant issued on the order of Balmford J. It was submitted in effect that the secondnamed defendant should be seen as a man who well knows the ins and outs of litigation, and that his failure to comply with the Master's order was but one manifestation amongst many in a campaign of studied insouciance towards the authority of the court and its processes. This was said to include not only the failure to comply with the order of the Master of 29 April 2002, but also sundry other failures to comply and tardy and inadequate compliance with a range of orders in the past in this litigation and in other related litigation. Moreover, it was contended, the evidence given by the secondnamed defendant in the course of his cross-examination about the panic attack which he said he experienced when Birch attempted to effect service of the order of 29 April 2002, and about the circumstances surrounding his arrest by the Senior Sheriff's Officer, was so incredible as plainly to be untruthful, and it was said that that was a further indication that even now the secondnamed defendant shows no sign of remorse concerning his failure to comply with the order of 29 April 2002.
[57]
There is force in these submissions. I am inclined to think that the secondnamed defendant has played fast and loose with court process over a long period of time, believing that if he were quick and clever enough he would continue to get away with it and that, even when he was caught out over the order of 29 April 2002, he continued to evade the consequences rather than recognising the significance of his disobedience and demonstrating any degree of contrition. Indeed, if this were a civil proceeding in which the standard of proof was upon the balance of probabilities I think that I would be satisfied that those facts had been made out.
[58]
But it remains that in a contempt proceeding the standard of proof required is the criminal standard, and therefore I take it that just as in criminal proceedings so too in this proceeding aggravating features relevant to penalty require proof beyond reasonable doubt[15]. Accordingly, although there may be no general requirement to adopt the view of the facts most favourable to the contemnor, that is the practical effect of the requirement that there be proof beyond reasonable doubt of the facts which tell against him[16].
[59]
I am not satisfied beyond reasonable doubt that Andrejic's failure to comply with the Master's order was wilful, in the sense of a knowing or deliberate refusal to comply with an obligation the nature of which was comprehended. Despite my inclination to think that it was, it appears to me that there are other hypotheses reasonably open on the facts consistent with a level of culpability no higher than careless or unintentional disobedience. As a matter of objective analysis, it is not unreasonable to suppose that despite Birch's efforts to bring the order of 29 April 2002 to the secondnamed defendant's attention, the secondnamed defendant truly believed that if he did not read the order he would not be bound by it and that, as he swore, he never did read it. That was an ignorant and arrogant thing to do. But in terms of intention, it was not directed at the court.
[60]
In the circumstances, I do not consider that it is appropriate to impose a fine, and I do not think that any other sanction is warranted. As matters stand the secondnamed defendant's arrest and treatment by the Senior Sheriff's Officer have proved sufficient for the purposes of specific deterrence. Once the warrant issued, and Andrejic was brought before the court, he moved rapidly to comply with the Master's order of 29 April 2002, and did so fully. Similarly, at the level of general deterrence, given that I cannot be satisfied beyond reasonable doubt that the contempt was wilful, I consider that the warrant of arrest, and the way in which Andrejic was dealt with upon his arrest were sufficient to make plain that the court will not tolerate disobedience of its orders. Finally, if punishment be a relevant consideration, and I think in a case like this that it is, I consider that Andrejic has now been punished enough. To adopt a line from the judgment of Cross J in Phonographic Performance Ltd[17], I think that he has learned his lesson.
[61]
Andrejic will of course have to pay the plaintiff's costs of the application. But subject to some exceptions I am not disposed to order indemnity costs. I would perhaps be prepared to do so if Andrejic had still not complied with the order of the Master and the motion to commit for contempt were for the purpose of coercing compliance. But the Master's order has now long been complied with, and the motion is gratuitous, and while it is not necessarily to be criticised for that, in my opinion it is not to be applauded.
[62]
I will order that there be allowed in the plaintiff's costs the costs of photocopied affidavits, and the costs of preparation of the written submissions and photocopied authorities. Otherwise, the plaintiff's costs will be taxed on a party/party basis and when taxed are to be paid by the secondnamed defendant.
[8] Williams, Civil Procedure in Victoria at [66.10.0]
[70]
[9] Although he may otherwise be dealt with for the contempt: see Re Modern Woodcraft Pty Ltd (in liq) [1997] 712 FCA (13 June 1997)
[71]
[11]Phonographic Performance Ltd v Amusement Caterers (Peckham) Ltd[1964] 1 Ch 195 at p.201, per Cross J, Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at p.101
[72]
[12] Williams, Civil Procedure in Victoria at [66.01.55]
The Court found personal service and disobedience proved, but declined to impose a fine or other further sanction. It ordered Andrejic to pay the plaintiff's party-and-party costs, allowing the costs of photocopied affidavits, written submissions and photocopied authorities.