In these proceedings the Prothonotary charges the defendant, Mr Jarvie, with contempt, particularised as the alleged alteration of the terms of an order of the Court made by Brereton J on 27 March 2014.
The summons came before the Court on 16 September 2016 for final hearing. Mr Jarvie was called three times outside the courtroom and did not answer. It would have been open to me to proceed with the hearing of the summons in his absence but I was not willing to do that. An alternative was to issue to the sheriff a bench warrant for the arrest of Mr Jarvie and for the hearing of the summons to take place whenever he should be brought before the Court in custody.
His residential address and the address of another property which he frequents are both known. It should be possible for the sheriff and his officers to locate Mr Jarvie and execute a warrant. I envisage that on his being brought before the Common Law Duty Judge under the warrant, the summons could be determined summarily. Mr Jarvie has been served with all evidence relied upon by the Prothonotary. The allegations are within a narrow compass and hearing of the summons would, I expect, occupy half a day or less.
The desirability of dealing with the matter immediately Mr Jarvie is brought before the Court would lie in the avoidance of any further difficulty securing his attendance for another occasion. Such difficulty would likely be encountered if there should be any further adjournment after he is brought in under warrant.
I am satisfied I have the power to issue a bench warrant under pt 75 r 14 of the Supreme Court Rules 1970 (NSW). That rule provides, so far as relevant, as follows:
"(1) Subject to rules of court:
(a) if, by subpoena or otherwise, the Court makes an order, whether under an Act or under rules of court:
(i) for a person to attend the Court for any purpose, or
(ii) for a person to produce any document or thing to the Court, and
(b) the person fails to comply with the order, the Court may issue, or make an order for the issue of, a warrant for the person's arrest.
(2) Subject to rules of court, an arrest warrant may be issued without notice to the person."
Part 75 of the Supreme Court Rules commences with r 1, which states that subject to certain exceptions which are not presently relevant, the rules do not apply to any of the proceedings in the court as specified in the Third Schedule to the Supreme Court Act 1970 (NSW), being, broadly speaking, proceedings strictly criminal in nature.
Rule 4 states that Div 2, which comprises rules 4 to 14, "applies to proceedings in the Court under the [sic] Part 5 of Chapter 4 of the Criminal Procedure Act 1986." That legislation provides for summary prosecution of criminal offences. Rule 4 does not state that Div 2 of Pt 75 of the Supreme Court Rules only applies to such proceedings under the Criminal Procedure Act 1986 (NSW). I do not see anything elsewhere in Pt 75 which would indicate that r 14 of Pt 75 only applies to such proceedings. It is drawn in terms wide enough to apply to any proceedings, including these proceedings for contempt.
The origins of Pt 75 r 14 lie in former Pt 42 r 7, which clearly applied to proceedings in the Court generally and was not limited to proceedings for summary prosecution of criminal offences. It was said by Howie J in Director of Public Prosecutions (Cth) v Sexton [2008] NSWSC 352 at [11] that a prosecution for criminal contempt, which is an appropriate description of the present proceedings against Mr Jarvie, although dealt with summarily does not fall within the summary jurisdiction of this Court to which Ch 4 of the Criminal Procedure Act or Pt 75 of the Rules apply.
I accept that Pt 75 is not expressed in terms to apply to a criminal contempt proceeding such as the present. But whilst Pt 75 r 4 does state in terms that Div 2 of Pt 75 applies to summary prosecutions under Ch 4 of the Criminal Procedure Act, there is nothing in Pt 75 to preclude its application to any other type of proceeding. In my view, Pt 75 r 14 is a source of power for the court to issue a bench warrant for the arrest of Mr Jarvie, in circumstances where he has failed to comply with an order that he attend before the Court today to answer the contempt charge brought against him.
I note that Schmidt J in Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 15) [2015] NSWSC 1177 at [17] cited Howie J's decision in Director of Public Prosecutions (Cth) v Sexton and implicitly treated it as authority for the proposition that Pt 75 generally would not apply to contempt proceedings such as the present. For the reasons given - and with respect - I do not agree Pt 75 r 14 is inapplicable. If I am wrong in concluding that Pt 75 r 14 is a source of power to issue a bench warrant, I nevertheless consider that the Court has inherent power to do so.
An order was made by Campbell J in these proceedings on 29 August 2016 that Mr Jarvie should attend before the court today to answer the contempt charge. That order was made consistently with the decisions of the Court of Appeal in Attorney-General for New South Wales v Hayden (1994) 34 NSWLR 638 and Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641. The order not having been complied with, the Court, in its endeavour to bring Mr Jarvie to account for the alleged contempt, would effectively be left powerless unless he could be arrested and brought before the Court to answer. I consider it to be inherent in the Court's jurisdiction that it is able, in such circumstances, to issue a warrant which will enable the sheriff and his officers to take Mr Jarvie into custody and ensure his presence, as ordered, for the summons to be heard.
Campbell J ordered that his order for Mr Jarvie to attend before the Court today might be effectively served by leaving a copy of it at each of the addresses which Mr Jarvie is known to occupy or frequent. That order for substituted service has been carried out. Affidavit evidence establishes that the documents were left at each of the addresses and that, on occasions, Mr Jarvie attended those addresses when the process server was present in circumstances which would have made it perfectly apparent to him that process was being left for him. On each such occasion he departed the location in a manner which indicated a desire to avoid contact with the agent who was making service.
Having concluded it would be appropriate to make an order for the issue of a bench warrant and that the Court has power to do so, I raised with the Prothonotary's counsel a concern about the sufficiency of the charge of contempt as pleaded in par 1 of the summons. The concern arises in this way. In early 2014 Mr Jarvie was the registered proprietor of real estate at 25 Keppel Road, Ryde. Also at that time he was the defendant in proceedings in the Equity Division of the Court, brought against him by a Ms Vekilis under the Property (Relationships) Act 1984 (NSW).
On 1 February 2014, Mr Jarvie sold the Keppel Road property at auction. On 27 March 2014 Brereton J made orders in the Equity Division proceedings which enabled completion of the sale to take place. Those orders were made upon express written undertakings being given by Mr Jarvie that he would direct payment of the net proceeds of the settlement to the solicitor for Ms Vekilis and that he would direct the real estate agent who held the deposit as stakeholder to account for it to Ms Vekilis. The undertakings were incorporated in and integral to Brereton J's orders.
The charge of contempt pleaded by the Prothonotary is that Mr Jarvie altered a copy of his Honour's orders. Affidavit evidence filed shows that the Prothonotary will endeavour to prove that the alteration was by way of substituting Mr Jarvie himself in place of Ms Vekilis as the person to whom the balance of the proceeds of sale should go and to whom the real estate agent should account for the deposit. The affidavits provide prima facie circumstantial evidence that the defendant sent a copy of the orders as altered by himself to his real estate agent, Mr Pracy. The latter had sought a copy in order to provide it to the purchaser's representatives, relative to arrangements for completion of the sale.
In order to prove contempt the Prothonotary will, it seems to me, need to prove an intentional act on the part of Mr Jarvie which objectively would have the effect of interfering with the due administration of justice. I raised with the Prothonotary's counsel whether it would be necessary to amend the charge to allege that Mr Jarvie not only altered a copy of the Court's order but also issued the altered document, as if it were the original, to his real estate agent in circumstances where it was, to his knowledge, likely to be communicated to the parties taking part in the settlement of the contract for sale of land and to be acted upon by them.
On consideration of this issue, the Prothonotary's counsel sought leave to amend his summons. I will grant leave for the amendment to be made. It appears there is no prejudice to Mr Jarvie, who has avoided and not participated in the proceedings to date. The evidence already filed will be relied upon by the Prothonotary to support the additional element of contempt which is to be charged by virtue of the amendment.
It is necessary that the amended summons now be served upon Mr Jarvie before the matter proceeds to final hearing. A copy of my orders of today's date, which I shall pronounce shortly, should also be served on Mr Jarvie. It would likely create disorder if I should issue an arrest warrant forthwith, prior to it being established that he has been served with the amended document and that he has not taken any objection to it or sought to rely upon any evidence belatedly.
Instead of issuing a warrant, I will make a further order for Mr Jarvie's attendance on a specific date before me. Upon it being shown on that date that he has been served with both the orders I make today regarding amendment and also the order for his attendance, and provided he is not present, I will issue a bench warrant at that stage. If the matter proceeds this way, then at the point of a bench warrant being issued I will be assured the case is fully ready, including with notice to Mr Jarvie of the amendment and, as I anticipate, no response from him in terms of wishing to file evidence or otherwise defend it. When the warrant issues in those circumstances, then upon his being brought back to the Court the matter can be disposed of forthwith as I have suggested earlier.
At the time of making the orders which appear below, on 16 September 2016, I cited s 97 Civil Procedure Act 2005 (NSW) as an additional source of jurisdiction for the issue of a bench warrant for Mr Jarvie's arrest. On reflection at the time of revising these reasons, I consider that s 97 is not applicable and I do not base my decision as to the Court's power to issue a warrant on that section.
Section 97 is in the same terms as Pt 75 r 14. In ASIC v Sigalla (No 14) [2011] NSWSC 62 White J held that the Civil Procedure Act does not apply to criminal contempt proceedings such as the present. By force of s 4 of that Act, Pts 3 - 9, which include s 97 within Pt 7, applies to "civil proceedings" in this Court. "Civil proceedings" are defined in s 3 as "other than criminal proceedings". White J reviewed a number of authorities in which criminal contempt has been referred to as a common law offence. His Honour concluded that proceedings in which criminal contempt is alleged are "proceedings for an offence" and are therefore "criminal proceedings" as defined in s 3 and not "civil proceedings" to which the Act applies.
On the other hand, in Director of Public Prosecutions (Cth) v Sexton Howie J held that in hearing and determining a charge of criminal contempt the Supreme Court does not exercise jurisdiction under Pt 5 of Ch 4 of the Criminal Procedure Act 1986 (NSW). The opening section of Ch 4 is s 170 which is in the following terms so far as relevant:
"170 Application
(1) This Chapter applies to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily.
…
(3) Part 5 (except Division 2A) applies to the following proceedings:
(a) proceedings before the Supreme Court."
The opening section of Pt 5 of Ch 4 is s 245, as follows:
"245 Summary jurisdiction of Supreme Court
(1) If, under any Act, proceedings may be taken before the Supreme Court in its summary jurisdiction, the Court has jurisdiction to hear and determine those proceedings in a summary manner.
(2) The summary jurisdiction conferred on the Supreme Court by subsection (1), or under any other Act on any other court to which this Part applies, is to be exercised by a Judge sitting alone, and not otherwise."
In s 3 of the Criminal Procedure Act "offence" is defined as "an offence against the laws of the State (including a common law offence)". Accepting White J's conclusion that a criminal contempt must be regarded as a common law offence, it is an offence which under the Supreme Court Act (in particular, s 23) "may be taken before the Supreme Court in its summary jurisdiction". Therefore it falls within s 245(1) and prosecution of the contempt must be governed by Pt 4 of Ch 5 of the Criminal Procedure Act.
In short, it cannot be the position that criminal contempt proceedings are at the one time "proceedings for an offence" within the meaning of the Civil Procedure Act so as not to be governed by that Act and, on the other hand, not "proceedings for [a] summary [offence]" within the meaning of s 170 Criminal Procedure Act, nor "proceedings [which] may be taken before the Supreme Court in its summary jurisdiction" within the meaning of s 245 of that Act so as not to be governed by the Criminal Procedure Act either. Accepting White J's conclusion, s 97 of the Civil Procedure Act is inapplicable but Pt 5 of Ch 4 of the Criminal Procedure Act is engaged. On that basis my conclusion that Pt 75 r 14 of the Supreme Court Rules applies is further supported: see r 4, quoted at [7].
The orders of the Court are:
1. Leave is granted to the plaintiff to file in Court and to rely upon an amended summons.
2. Pursuant to the inherent jurisdiction of the Court it is ordered that the defendant attend the Supreme Court on Thursday 22 September 2016, and thereafter as required, to answer the charge of contempt of Court set out in the amended summons filed 16 September 2015.
3. The amended summons and a copy of these orders are to be served on the defendant by leaving them at the gate to the premises at and at the premises at .
4. Order that personal service of the amended summons and of the orders made this date is dispensed with and, upon compliance with Order 3, the defendant shall be deemed to have been duly served with the documents.
5. The costs of proceedings before the court on 16 September 2016 are to be costs in the summons.
6. The proceedings are adjourned to be listed before me on 22 September 2016 at 9:15am.
[3]
Amendments
23 September 2016 - Coversheet - defendant's address anonymised in Order 3.
[4]
[26] - defendant's address anonymised in Order 3.
25 May 2017 -
[25] - last line, insert 'applies' after 'Rules'
03 August 2017 -
[22] - substitute 'Pt 4' with 'Pt 5'; substitute 'Ch 5' with 'Ch 4'.
[25] - substitute 'Pt 4' with 'Pt 5'; substitute 'Ch 5' with 'Ch 4'; further grammatical corrections made.
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Decision last updated: 03 August 2017
Parties
Applicant/Plaintiff:
Prothonotary of the Supreme Court of New South Wales