Prothonotary of the Supreme Court of New South Wales v Whit

Summary

1. This judgment sets out the reasons why on 9 March 2023 the Court committed the defendant contemnor, Mr Ronald Brian Whit (Mr Whit), to imprisonment for a term of one year subject to being suspended if he complied with the Court's orders that gave rise to the proceedings against him.
2. It should be observed at the outset that a significant feature of this matter was that Mr Whit's conduct was integrally connected to his role as an executor. In addition to the need both to punish Mr Whit and compel his compliance with the orders of which he was in contempt, his sentence may serve as a salutary reminder of the importance the Court attaches to the proper discharge of an executor's duties and to deter departure from the high standard of conduct which is expected of executors both under the general law and statute.
3. On 13 December 2022, Mr Whit pleaded guilty to these charges of contempt: "1. Mr Ronald Whit has committed a contempt of Court in that: … h. He failed to comply with an order made by Rein J on 15 December 2021 (Order 1) that, on or before 2 March 2022, he file and serve either: a. an affidavit addressing the matters set out in the Order 6 of the Court's orders dated 17 August 2020; or b. an affidavit explaining non-compliance with order 1(a) above. (i) He failed to comply with an order made by Rein J on 15 December 2021 (Order 2) that, on or before 2 March 2022, he produce to the Court and the plaintiff the following documents or things that are in his possession or control: a. All bank passbooks, bank statements, cheque books, cheque butts and other documents from all bank account(s) held by the Defendant for the period 1 June 2017 to date. b. All bank passbooks, bank statements, cheque books, cheque butts and other documents from all bank account(s) held in the name of or for the benefit of the Estate, for the period 1 June 2017 to date; or c. Provide an affidavit explaining non-compliance with order 2(a) and (b) above."
4. At the conclusion of a hearing as to penalty on 9 March 2023, the Court made these orders: "1. Ronald Whit is committed to a correctional centre for period of 12 months commencing on the date of his arrest. 2. Order that the term of imprisonment imposed by order (1) be suspended on the following conditions: a. The contemnor comply with order 6 of Rein J of 17 August 2020 (attached) by filing the affidavit electronically with the Supreme Court by 5pm on Friday 17 March 2023 and emailing the affidavit to the email address provided to him by the Prothonotary for Ms Robyn Gai Mottley and the Prothonotary by 6pm on Friday 17 March 2023; and b. The contemnor comply with order 2 of Rein J of 15 December 2021 (attached) by emailing scanned copies of the documents or by emailing the affidavit required in the alternative to the email address for Ms Robyn Gai Mottley and the Prothonotary by 5pm on Friday 17 March 2023 and by posting any documents by registered post to the Supreme Court of NSW, addressed to the Prothonotary, by 5pm on Friday 17 March 2023; and c. The contemnor report in person to Moe Police Station on Monday 13 March 2023 and again on Monday 20 March 2023; and d. The contemnor report to the NSW Sheriffs' Office by telephone to the Sheriff's Operations Centre, 02 8688 4455, on Monday 13 March 2023 and every Thursday and Monday thereafter until the hearing on Friday, 24 March 2023. e. The contemnor attend the Court for further directions at 9.45 on Friday, 24 March 2023: i. by Audio-Visual Link, or ii. in person, if notified that his attendance is required by the Prothonotary by 5pm on 22 March 2023. 3. List the matter for further directions at 9.45 on Friday, 24 March 2023. 4. Reserve costs …"
5. These are the reasons for those orders.
6. Mr J Emmett of Senior Counsel appeared for the Prothonotary. Mr T Spohr of Counsel appeared for Mr Whit. The Court acknowledges the considerable assistance it received from the written submissions of both counsel, and the efficient way in which they conducted the hearing.

The course of the hearing

1. At the outset of the hearing, in response to a question which I asked, Mr Spohr assured the Court that Mr Whit, who was present in court, understood what was happening and the seriousness of the situation he was confronting. I then addressed Mr Whit directly. The gravamen of what I said to him was that the Court was prepared to give him one last chance to comply with the orders of Rein J of which Mr Whit was in contempt. If he did not do so, I indicated that it was highly likely that the Court would have no alternative but to impose a custodial sentence. However, if he did comply with the orders by providing, in the first instance, what he could in the course of a two-hour adjournment I was prepared to grant him, then it would be highly unlikely that the Court would impose a prison sentence.
2. After taking advice, and with the assistance of his lawyers, Mr Whit filed in Court the affidavit set out in [63] below. This explained why he could not comply with Rein J's orders in the time available during the adjournment, but proposed a timetable within which he would comply. Importantly, that affidavit concluded with: "9. I have instructed my lawyers that I am prepared to be sentenced to a suspended sentence of imprisonment today, on the basis that if I don't comply with the timetable set out in this affidavit, I will be liable to immediate imprisonment."
3. In the light of those instructions, the balance of the hearing proceeded on the basis that the only issue in dispute was the term of the sentence which the Court would impose. However, in a matter such as this, that concession does not absolve the Court from forming its own view that a custodial sentence was appropriate. As a matter of the public interest, I do not consider such a concession or agreement between the parties can bind the Court. I therefore make clear that, irrespective of the position adopted by Mr Whit, by reason of the Executor Issue (see [68] to [72] below) and the Circumstances (see [73] below) I was well satisfied that this was a clear case for the imposition of a custodial sentence as the "last resort" (see the principles set out in [79] below).

The agreed facts

1. I next set out the agreed statement of facts in [11] to [59] below. The various emphases in what follows are mine for the purposes of these reasons.

Background

1. On 9 June 2009, Ronald Whit ("the deceased") died, leaving behind a Will dated May 1997 (the Will).
2. On 1 June 2017, Mr Whit was granted probate by the Court as the executor named in the Will. Mr Whit's application for probate was supported by an affidavit filed on 24 May 2017, which set out the assets of the Estate at $175,000 net assets.
3. On 21 December 2018, Ms Mottley commenced proceedings, by way of a statement of claim, in the Equity Division of the Supreme Court of NSW seeking that the grant of probate be revoked and that the defendant file verified accounts ("the proceedings").
4. Ms Mottley engaged a process server to serve the commencing documents personally on Mr Whit at his address in Yallourn North, Victoria; those attempts occurred between 21 January 2019 and 14 July 2019.
5. On 23 April 2019, Ms Mottley's solicitor, Mr Michael Atkinson, sent Mr Whit a copy of the statement of claim by post and by email.
6. On 2 September 2019, the Court made orders extending the time for service of the statement of claim upon Mr Whit to 21 December 2019. Orders were also made for substituted service. On 6 September 2019, the statement of claim was personally served on Mr Whit. Mr Whit has no recollection of this occurring.
7. On 25 November 2019, the Court listed the matter for hearing on 3 February 2020 and made an order for Ms Mottley to notify Mr Whit of the hearing date.
8. Mr Whit moved out of the address in Yallourn North, Victoria around early December 2019.
9. On 26 November 2019, Mr Atkinson sent a letter to Mr Whit notifying him of the hearing on 3 February 2020 by express post to XX Third Street, Yallourn North, Victoria, and by email to XXXX@me.com.
10. On 27 November 2019, Mr Atkinson also sent an SMS message to Mr Whit notifying him of the hearing date.

Orders made February 2020

1. On 3 February 2020, the proceedings were listed before Rein J for hearing. Mr Whit did not appear. His Honour adjourned the proceedings to 14 February 2020 for directions.
2. On 14 February 2020, the proceedings were listed for directions before Rein J. Mr Whit did not appear. Further orders were made, including orders that the plaintiff serve the orders personally on Mr Whit.
3. Those orders were subsequently varied on 2 March 2020 and 24 April 2020.
4. Between 14 February 2020 and 17 August 2020, several attempts were made to locate and personally serve Mr Whit in accordance with those orders.
5. On 21 July 2020, Mr Smith called Mr Whit and they had a brief conversation in which Mr Smith referred to a court case and attempted to solicit Mr Whit's address. Mr Whit replied to the effect that he did not have one.
6. On 7 August 2020, Mr Atkinson sent a letter to Mr Whit via email to XXXX@me.com requesting a current address for service.

Orders made August 2020

1. On 17 August 2020, the proceedings were again listed before Rein J. Mr Whit did not appear. His Honour made the following orders (emphases added): 1. In respect of the orders made by Rein J on 14 February 2020 (which were varied on 2 March and 24 April 2020) the Court notes that the plaintiffs have been unable to personally serve the defendant (at least in part due to the COVID-19 pandemic). 2. Matter stood over to Friday, 16 October 2020 at 10am for hearing. 3. Direct the Plaintiff to serve on the defendant: (a) A copy of the Court's Judgment of 14 February 2020. (b) A copy of Exhibit A, the Court Book referred to in the Judgment of 14 February 2020. (c) A copy of the written submissions provided by Counsel to the Court for the hearing on Monday 3 February 2020, Counsel's later submissions emailed to his Honour's Associate on Monday 10 February 2020, a copy of the Affidavit of Patrick Thomas Smith dated 11 August 2020, and a copy of the Affidavit of Michael Henry Atkinson dated 30 January 2020. (d) a copy of these orders made today. 4. Service on the defendant is to be effected by email sent within two business days hereof to the following email address: XXXX@me.com and the documents will be taken to have been served in accordance with UCPR r. 10.14 on the day that the email is sent to that address. 5. The plaintiff is to file an Affidavit of Service in respect of orders 3(a)-(d) and 4 above. 6. Order the defendant, on or before Friday, 9 October 2020 at 10am to file and serve on the Plaintiff an affidavit sworn by him setting out: (a) the assets of the Estate of the late Ronald Whit and their current location. (b) The monies received by him and paid out by him as executor of the Estate. (c) his reasons for failing to distribute the Estate. (d) His current address. 7. Order the defendant to pay into Court, on or before Friday 9 October 2020 at 10am, all monies held by him as executor of the Estate. 8. Order that the defendant personally attend Court (with or without legal representation) via AVL for the hearing on Friday, 16 October 2020 at 10am. The AVL connection details and instructions which the defendant is required to follow are set out in Annexure A to these orders. 9. Order that for the duration of these proceedings the defendant is to inform the plaintiff's solicitor of any change to his residential address, email address or telephone number within three days of the change having occurred. 10. Note that Order 6, 7, 8 and 9 are mandatory and failure to comply with any of them may have serious consequences for the Defendant including but not limited to a warrant being issued for his arrest to compel attendance at court, fines and imprisonment. 11. Note that in the light of the serious consequences of failure to comply with these orders the Court urges the Defendant to obtain legal representation in this matter at the earliest opportunity.

Order for bench warrant to issue

1. On 16 October 2020, the proceedings were listed for hearing before Rein J. Mr Whit did not appear in person or by AVL.
2. Ms Mottley's representatives sought that his Honour issue a bench warrant for Mr Whit's arrest. Rein J requested that he be provided with Mr Whit's date of birth so that a warrant could be issued.
3. On 18 November 2020, having received the necessary information, Rein J made the following order in chambers: 1. Order pursuant to s. 97 of the Civil Procedure Act 2005 that a warrant issue addressed to the sheriff to arrest Ronald Brian Whit (DOB XX XXXX XXXX) and to bring that person before the Court for the purposes of these proceedings detaining that person in custody in the meantime.
4. On 22 February 2021, the Superintendent, Civil Enforcement Command, Office of Sheriff, sent a letter to the defendant requiring him to surrender himself to the Court by 24 March 2021. The letter was sent by express post to XX Third Street, Yallourn North, Victoria, and by email to XXXX@me.com.
5. Mr Whit did not surrender himself to the Court.

Arrest of Mr Whit

1. At approximately 10:15am on 13 December 2021, Mr Whit was arrested in a caravan park at XXXXX, Moe, Victoria, pursuant to the warrant issued on 18 November 2020. The arrest was performed by a number of Victorian Police Officers attached to the Fugitive Squad, accompanied by three NSW Sherriff's Officers.
2. At the time of the arrest, Mr Whit was asked if he knew why Police were in attendance. He responded with words to the effect of "I have an idea, I was expecting this."
3. Mr Whit was brought before the Melbourne Magistrate's Court where an order was made pursuant to s. 83(8)(b) of the Service and Execution of Process Act 1992 (Cth) for Mr Whit to be taken to the NSW Supreme Court by Officers of the Sheriff's Office of NSW. Mr Whit did not contest the order and did not seek bail.
4. Mr Whit remained in the custody of Victorian Police overnight and was conveyed to Tullamarine Airport on the morning of 14 December 2021.
5. At approximately 10:00am, Mr Whit was flown to Sydney in the custody of NSW Sherriff's Officers.

Filing of notice of motion and orders made December 2021

1. Following his return to Sydney, Mr Whit was brought before Rein J. Mr Spohr, then a Solicitor Advocate at Legal Aid NSW appeared as amicus, having received an application for aid by Mr Whit. Mr Emmett SC also appeared as amicus, instructed by the Crown Solicitor's Office, on behalf of the Prothonotary.
2. During the course of the proceedings, his Honour directed the Prothonotary to apply, by way of notice of motion in the proceedings, for punishment for contempt.
3. In accordance with his Honour's direction, a Notice of Motion and Summary of Charges were filed in court.
4. During proceedings, in Mr Whit's presence, his Honour made the following observations (emphases added): "Rein J: … Mr Whit, you've be arrested because of your failure to attend Court by AVL on 16 October 2020 following an order in connection with your role as the executor of your father's estate. You're also arrested because of your failure to file and serve an affidavit by 9 October 2020 in connection with your role as executor… …I do want to put something sort of clearly and put it clearly in focus. Mr Whit applied for and was granted the position of executor and, under that provision, he was required to do certain things. He was required to administer the estate and he was required, I think within a period of 12 months from the grant of probate, to file an affidavit in relation to whatever steps he had taken. He did not do so. That was something which was required before proceedings were commenced; it has got nothing to do with Ms Mottley's application or claims; it is to do with his role, as appointed by this Court to do a particular function. Now, he didn't do it. So, the plaintiff had to come to Court and there is also the background this is really the background, I know, but what I suppose I am saying is this is not just someone who has been served who is a defendant in a case, unconnected with the Court's processes; he already made himself connected... … I don't know what another judge might think about it but, if it were proven, the Court has to show that this can't happen. We can't have people ignoring court orders, not just once but more than once, and then just, as it were, taking their chance that nothing will happen. The Court has to demonstrate. That is part of why people are punished for contempt, to show everyone that that is not going to happen, they are not going to get away with it … [the previous contempt cases brought to his Honour's attention] are very serious matters and it is partly because the Court is very concerned about ensuring that people understand that when the Court issues an order, it is to be complied with…"

Orders made March 2022

1. On 21 March 2022, the proceedings were listed for directions before Hallen J.
2. Mr Spohr appeared for Mr Whit in connection with the contempt motion. Mr Whit's representatives in the probate proceedings advised his Honour that they had been granted leave by the Registrar to withdraw. Mr Whit appeared, by AVL, for himself in connection to that part of the proceedings. Brett Thomson of the Crown Solicitor's Office appeared for the Prothonotary.
3. His Honour was notified that Mr Whit had not complied with the Orders. The following exchanges occurred (emphases added): Hallen J: Mr Whit, you've heard what's gone on today. Do you intend to comply with the orders that you agreed to in December last year? Mr Whit: Yes, your Honour. Hallen J: And when do you intend to do that Mr Whit? Mr Whit: As soon as possible. … Mr Whit: My intention is to submit the affidavit within the next two weeks. Hallen J: I see, and I'm just looking at the orders made on 15 December and that was that you do something by 2 March. You provided [sic] an affidavit by 2 March and then there was a further order that you provide documents. Are you going to comply with both those order Mr Whit albeit late? Mr Whit: If I knew what those order were, your Honour. Hallen J: What we'll do Mr Whit is I'll ask [Ms Mottley's counsel] if he'd be so good as to provide you with a sealed copy of the orders made by Justice Rein… …. Hallen J: And you're content for the orders to be sent to you by email. Mr Whit: Not happy about it your Honour, but if I'm aware of it I will look for the email."
4. His Honour made the following orders: 1. The Court notes that: 1. The Plaintiff will provide a copy of the orders made by Rein J on 15 December 2021 by email sent to the Defendant by 4:00pm on 22 March 2022; 1. The Defendant has indicated that he will comply with the orders made on 15 December 2021 by Rein J by 2:00pm on 4 April 2022. 2. Stand the matter over for further directions before the Equity Registrar on Monday, 11 April 2022. 3. On 22 March 2022, Mr Atkinson sent a copy of the orders made 15 December 2021, as they appeared through the Online Registry, to Mr Whit by email.
5. Mr Whit has not complied with the Orders.

Leave to file amended motion

1. On 11 April 2022, the matter was listed for directions before Registrar Walton. The Registrar made orders for the exchange of evidence on the contempt motion and granted the Prothonotary leave to file an Amended Notice of Motion.
2. 26 April 2022, the Prothonotary filed and served an Amended Notice of Motion seeking that Mr Whit also be punished for contempt by failing to comply with the Orders.

Other matters

1. At all material times, Mr Whit's email address of XXXX@me.com was active and Mr Whit had the means to access that account.
2. Mr Whit receives a high volume of emails though this account and as a result he reads very few emails. In May 2022, Mr Whit had 27,900 unread emails in his email account, and on the basis of this figure he estimates that he had about 25,000 unread emails in his account as at October 2020.
3. At some point in 2021, something occurred which suggested to Mr Whit that he may have received correspondence from Ms Mottley. He searched his emails and identified one or two emails which had been sent to him by Mr Atkinson.
4. Mr Whit denies reading any emails, or seeing any emails even by subject line, in connection to the proceedings brought by Ms Mottley prior to conducting this search.
5. Since locating those emails in 2021, Mr Whit has not changed his residential address, email address or telephone number.

Other facts

1. There were three other sources of facts upon which the Court relied as having been established.
2. First, there was tendered in evidence a certificate which demonstrated that: 1. On 26 June 1985, Mr Whit was charged with the offence "fraudulent misrepresentation". 2. On 10 October 1986, Mr Whit was sentenced for that offence under s 556A of the Crimes Act 1900 (NSW), receiving a 12 month recognizance. No conviction was recorded.
3. Second, Mr Whit relied upon an affidavit which he had made in these terms: "1. I am the Contemnor in the proceedings. 2. I was born on XX XXXX XXXX in Sydney. I am 70 years of age. 3. I grew up in Petersham, New South Wales. I have three siblings: two elder sisters, and one younger brother. 4. During my childhood, my mother was wonderful. My father drank a lot but was not abusive or violent towards the children. He was a great father, and we were very close, notwithstanding his problems with alcohol. 5. I found school very difficult. It was a difficult place for me to be. I couldn't concentrate. I still have difficulty concentrating and have to read things four or five times before I comprehend. I have always found it hard to read. I am a person who needs to learn by experience. 6. Due to my difficulties, I left school at age 14 and became an apprentice saw doctor. A saw doctor is responsible for making, repairing, and maintaining sharpening saws, bandsaw blades and other cutting tools. After six months of that, I started working on a four-hundred-ton press, manufacturing scaffolding clips, before moving on to a job as a Technician in Training with the Postmaster General. This position was in the engineering division, which looked after all the telephone wires. We used to install and set up telephone exchanges, wire buildings, install telephone handsets and switchboards, and carry out repairs. Getting this job was difficult, because of my low level of education. The first year was all training and it was very difficult for me. It included maths courses and exams. 7. In September 1972, I was drafted for National Service. Following my training, on 5 December 1972, Prime Minister Whitlam ended National Service upon his election. The next day I was asked, along with others, whether we would nevertheless complete our service. I agreed to continue. 8. After National Service, I took up employment with a company called Metropolitan Signals as a service manager. I was in this position for seven years. The company was associated with Chubb Security, and in that connection Bill Chubb, myself, and another gentleman introduced the first Chubb Fire Alarm into Australia through a sale to the Navy. 9. I got married in July 1975. My wife passed away from cancer in 1995. I have a daughter and a stepson from the marriage. I have an excellent relationship with my daughter. She lives close to me, and we see each other frequently. I help her set up the market stall she runs on weekends. 10. I retired from working four years ago and started receiving the aged pension. My pension amounts to $1,178 per fortnight, including rental assistance. I do not have any additional source of income. 11. I currently live in a rented caravan in Moes Garden, Victoria. I moved here in mid-2020 (I am not sure of the exact date). This was originally meant to be a temporary arrangement, but due to COVID lockdowns and other issues, I have stayed on. 12. I pay my rent for this caravan from my aged pension. The rent is $225 per week, plus power. 13. I volunteer my time helping with the computers and other IT needs of my local RSL, and I have been doing that for some 35 years."

Two general matters

1. In commencing consideration of the issues presented for determination, it is convenient that I begin by setting out two general matters which very much inform what follows. The first is what I shall refer to as the "Executor Issue". The second I shall refer to as the "Circumstances".
2. The Executor Issue is the recognition by the Court that Mr Whit was not just an ordinary civil litigant before the Court. He was an executor being sued in (at least) his capacity as such.
3. The consequence is that the conduct which Mr Whit has acknowledged was contemptuous is not just to be assessed as a breach of the obligation to which he was undoubtedly subject under s 56(3) of the Civil Procedure Act 2005 (NSW) that "a party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court" (emphasis added). That conduct was also to be measured against the common law (including equity) and statutory obligations of an executor, including to the Court.
4. Mr Whit sought to be appointed executor of the deceased's estate. To be an executor is to hold an office (which in this context is a term of legal significance) which, although it might have its origin in a private instrument being a will, is given legal effect by an order of the Court and thereby is not just of a private character. It is a fiduciary position: both morally and legally a position of trust. It is not just a private function, but is a publicly recognised office which also fulfills a public interest to ensure the due administration of estates according to law. Not just those immediately concerned with the proper administration of an estate, but the members of the community generally, are entitled to expect that executors will discharge that office properly. Similarly, the community looks to the Court to ensure that is done and that a failure to meet the required standards of conduct is, where appropriate, penalised and thereby deterred.
5. The executor's various duties are owed in their own particular respects to beneficiaries, third parties such as creditors of the estate, and the Court. In the context of estate litigation such as these proceedings, an executor has particular obligations which do not attach to an ordinary litigant or to the executor in some other capacity. In that regard, I respectfully adopt this convenient summary by McMillan J in Re Flavel; Application by Lipshut [2018] VSC 228 at [35]: "… In either circumstance, Heather is involved in the litigation in separate capacities: as the executor of the estate and as the principal beneficiary of the estate. As the executor of the estate, it is incumbent on her to assess the evidence in an impartial and objective manner, act properly and reasonably in conducting the litigation and, if appropriate, compromise the proceeding. This is consistent with her fiduciary duty as an executor in conducting litigation affecting an estate. As a beneficiary of the estate, she does not have such a duty. …"

Civil or criminal contempt?

1. The parties accepted that the effect of the relevant authorities was that whether conduct constituted civil or criminal contempt was not always easy to determine and, in many respects, could become a distinction without a difference. Nevertheless, both Mr Emmett SC and Mr Spohr agreed that the Court should identify the nature of Mr Whit's contempt, not least for the purpose of any appeal rights. That is a sufficient reason for the Court to do so.
2. As a convenient summary, Mr Spohr helpfully drew the Court's attention this observation by Nettle J in his concurring judgment in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 9 at [65] (emphases added; citations omitted): "A proceeding for punishment for contempt constituted by disobedience of an injunction granted in a civil proceeding is not part of the criminal justice system in the sense essayed in Caltex, X7 or Do Young Lee v The Queen. Although "all proceedings for contempt 'must [now] realistically be seen as criminal in nature'", not all contempts are criminal. Failure to obey an injunction is not a criminal offence unless the failure to comply is defiant or contumacious. A proceeding for contempt is not a proceeding for criminal contempt if the proceeding appears clearly to be remedial or coercive in nature as opposed to punitive. A criminal contempt is a common law offence, albeit not part of the ordinary common law. But even a proceeding for criminal contempt is not a criminal proceeding."
3. I do not accept Mr Spohr's submission that in the present case the primary purpose of the proceedings was to compel obedience which was classically the purpose of civil contempt (see, for example, Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21 ("ACP"). In the present case, I am satisfied beyond reasonable doubt by reason of the Circumstances that Mr Whit's conduct in failing to comply with the Orders was defiant or contumacious, and therefore constituted a criminal contempt. I am also satisfied beyond reasonable doubt and find (as Mr Emmett SC submitted it was open to the Court to find): 1. Mr Whit appreciated that, by failing to comply with the Orders, he was committing a contempt. 2. By the time he came to commit that contempt, Mr Whit was aware of the lengthy history in these proceedings of Court orders and attempts to contact him to procure compliance. He was aware of the seriousness with which the Court regarded the failure to provide that information. 3. Mr Whit subjectively intended to disobey the Orders. 4. Mr Whit was aware of the personal consequences of failing to comply.

Sentence - principles and factors

1. I respectfully adopt and apply the summary of the relevant principles by the Chief Justice, then President of the Court of Appeal sitting at first instance, in NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97: "26 The underlying rationale of sentencing for both civil and criminal contempt is to protect the effective administration of justice: see He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [10] (He v Sun); Mirus Australia Pty Ltd v Gage [2018] NSWSC 35 at [7] (Mirus); Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107; [1986] HCA 46; Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 at [97] (Kazal); and Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 at [26]-[27] (Matthews). 27 In Sun v He (No 2) [2020] NSWSC 1298 (Sun v He), the Chief Judge in Equity noted that an important purpose of sentencing for contempt is to make clear the Court's disapproval of such conduct, as well as to set a punishment that will further the object of general deterrence. 28 In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 (Maniam), where there had been deliberate and contumacious refusals to comply with subpoenas on repeated occasions, at 313-315 Kirby P (as his Honour then was, and with whom Mahoney and Hope JJA agreed) outlined that: "Contempt law has been fashioned by the courts to protect the administration of justice. This is an activity, self-evidently of the greatest importance to society. It represents a vital part of the peaceful government of a community such as ours … … A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way … … The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 500. This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order: cf Root v MacDonald 157 NE 684 (1927) at 688; 54 Am LR 1422 (1927) at 1429. In cases where such a measure of wilfulness is established, the court may proceed to punish the convicted contemnor by the imposition of a custodial sentence or a fine or both. In such a case the elements necessary to establish wilfulness, carrying as they do the potential of penal consequences, must all be proved to the criminal standard: see Consolidated Press Ltd v McRae (1955) 93 CLR 325 at 333. The procedures of a criminal prosecution must be strictly observed: see Spindler v Balog (1959) 76 WN (NSW) 391 at 393." 29 In Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [46], [57]-[58] (Dowling), the Court of Appeal made clear that the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply with respect to proceedings for contempt in the civil jurisdiction of this Court. 30 Sentencing a contemnor to a term of imprisonment is a penalty of last resort: see, for example, Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 at 501; [2006] FCA 83 at [25]. While the provisions of the Crimes (Sentencing Procedure) Act may not apply, to adopt the language of McCallum JA in He v Sun at [68], "it is appropriate to proceed on the basis that, where a person is being dealt with for contempt in civil proceedings, as where a person is being sentenced for a criminal offence, the course of committing the contemnor to a correctional centre or sentencing them to a term of imprisonment should not be taken before considering whether there is any alternative course that is appropriate in the circumstances, having regard to the nature and object of the function in question". The reasons underpinning her Honour's conclusion on this point were that: "… imprisonment is a punishment of last resort: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [115] (Spigelman CJ, Wood CJ at CL and Simpson J). While that is a proposition that arises most commonly in the discourse of the criminal law, there is no reason in principle why the same restraint should not apply to punishment of contempt and every reason why it should. That is a necessary incident of the common law's acceptance that the right to personal liberty is a fundamental common law right which 'cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes': Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 at 292 (Mason and Brennan JJ)." 31 In Matthews at [26]-[27], Barrett J (as his Honour then was) set out the following factors generally to be taken into account in addressing the question of the penalty to be imposed for contempt of court: (1) the seriousness of the contempt proved; (2) the contemnor's culpability; (3) the reason or motive for the contempt; (4) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; (5) whether there has been any expression of genuine contrition by the contemnor; (6) the character and antecedents of the contemnor; (7) the contemnor's personal circumstances; (8) the need for deterrence of the contemnor and others of like mind; and (9) the need for denunciation of contemptuous conduct. His Honour's observations were referred to with approval by the Court of Appeal in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155. 32 In Kazal at [102], the Full Court described the factors in Matthews as a "useful list of considerations that may properly be seen to have a part to play in a given case, although not exhaustive". It was observed that all of the factors were relevant to differing degrees in ascertaining the need for deterrence. The Full Court observed that the above factors were referred to "in more detail and somewhat more besides" in Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) [2017] FCA 522 at [140]-[143] (Halkalia). The factors mentioned in Halkalia include: (1) the nature and circumstances of the contempt; (2) the effect of the contempt on the administration of justice; (3) the contemnor's financial means (when deciding the amount of any fine); (4) the relative seriousness of the contempt, which is determined by the extent to which the contemnor appreciated that a contempt was being committed; (5) whether the contemnor subjectively intended to disobey the order; (6) the importance of bringing home to the contemnor the seriousness of the contempt; (7) whether the contemnor has offered an explanation or apology for his or her conduct; (8) whether the contemnor has acknowledged that a contempt was committed; (9) whether the contemnor was aware of the personal consequences of what he or she proposed to do; (10) the actual or potential consequences of the contempt on the proceedings in which the contempt was committed; and (11) whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest. 33 As the Court observed in Kazal at [101]-[102], the list of potentially relevant factors is not exhaustive. At [103], the Full Court observed more generally that: "The burden of the additional authority in this Court is to add weight to the factors listed in Matthews, rather than requiring any change by way of addition, subtraction or variation. The focus remains on the core themes of the objective seriousness of the conduct and, in particular, its effect on the administration of justice, subjective factors such as the contemnor's culpability, antecedents and attitude, including in particular any apology or other palpable sign of contrition, the capacity to pay a fine, and imprisonment being a last resort. Deterrence remains a dominant theme, both specific and general. Even denunciation and punishment can be seen as bolstering deterrence. That is especially so when the conduct entails contemplation and the opportunity to reflect and desist." …"

Seriousness of the contempt proved, and the Contemnor's culpability; the reason or motive for the contempt

1. By reason of both the Executor Issue and the Circumstances, the Court is satisfied that this is a serious contempt. The Orders required compliance by 2 March 2022. I accept Mr Spohr's submission that the period of Mr Whit's non-compliance is 12 months. Mr Whit has offered no reason, motive or excuse for his contempt. These might otherwise have provided some basis for exculpation, but that is not what has happened in this case.
2. Furthermore, I regard the seriousness of the contempt as being aggravated by Mr Whit's failure to fulfil his further assurance to the Court on 21 March 2022. That aggravating feature warrants a longer sentence than might otherwise have been the case.

Any benefit or gain from the contempt

1. Mr Spohr submitted that there was no evidence of any benefit. I accept Mr Emmett SC's submission that the Court just does not know one way or another. That lack of knowledge includes being unable to say whether or not avoiding providing the information for 12 months has been of benefit to him or otherwise.

Any expression of contrition

1. By analogy with the criminal law, Mr Spohr submitted that the plea of guilty should be seen as an expression of contrition which, in this case, warranted a discount of 25% from the penalty that would otherwise have been imposed.
2. While a plea of guilty is capable of being evidence of contrition, in this universe of discourse (as opposed to what may be the case in the criminal jurisdiction) a plea of guilty without more is not necessarily evidence of contrition. In these proceedings, whatever benefit might otherwise have accrued to Mr Whit on the question of sentence by a plea of guilty is in my estimation neutralised by the fact that he has now sworn two affidavits, in neither of which he offers any expression of contrition or remorse or any explanation for his conduct.
3. In that regard, while his first affidavit (see [62] above) refers to some level of cognitive difficulty, no submission has been made on his behalf that such difficulty impaired his ability to understand or comply with the Orders, or to understand the possible consequences of his breach of them. Similarly, the affidavit which he swore during the course of the hearing (see [63] above), gave an explanation as to why he was unable to provide an affidavit on the day of the hearing, but not why he was unable to comply with the Orders over the period of months which he had been given to do so.

Mr Whit's character and antecedents

1. There was some debate between the parties about Mr Whit's discharge without conviction in 1985 for the offence of "fraudulent misrepresentation". There was ultimately no dispute that for the purposes of a sentencing exercise such as the present, the effect of the since repealed section 556A of the Crimes Act 1900 (NSW) was that Mr Whit did not have a conviction.
2. Mr Emmett SC nevertheless submitted that it was open to the Court to take into account the finding of guilt. It is not necessary for me to decide this point. As a matter going to the Court's discretion, the conduct which gave rise to Mr Whit's sentencing was nearly 40 years ago. For the purposes of the Court's present task, I regard Mr Whit as being a person of good character and have taken that into account accordingly. That would have been the outcome even if I were to take into account the finding of guilty.

Mr Whit's personal circumstances

1. There was again no dispute between the parties that the Court should take into account the matters set out in Mr Whit's first affidavit reproduced at [62] above. I have done so, particularly in the context of considering the proportionality or length of sentence that it is appropriate for the Court to impose.

The actual or potential consequences of the contempt on the proceedings in which the contempt was committed

1. Mr Whit's contempt has led to a delay of one year in the conduct of the proceedings.

Whether the contemnor was aware of the personal consequences of what he or she proposed to do

1. By reason of the Circumstances, the Court is satisfied beyond reasonable doubt that Mr Whit was well aware of the possible personal consequences of what he proposed to do in failing to comply with the Orders.

The need for deterrence of the contemnor and others of like mind from similar disobedience, and the need for denunciation of contemptuous conduct

1. On behalf of Mr Whit, Mr Spohr accepted that these were all important factors. Nevertheless, he submitted that the general concepts of deterrence and denunciation had to be weighed against the purpose for which he submitted the proceedings were originally commenced, being to compel compliance with the Orders. In my respectful view, it is not a question of weighing one against the other. As I have said in [80] above, the compulsion of compliance is an additional, but equal factor in this case to the need to punish, deter and denounce.

Sentence - determination

1. The parties accepted that the Court was required to engage in an exercise of instinctive synthesis. To that end, and relying upon what was said to be an analogy with cases of contempt for refusing to answer questions, Mr Emmett SC's submissions contained a helpful table of sentences that had been imposed in such cases, nearly all of which were criminal cases.
2. Mr Spohr submitted that the analogy was not apt. I disagree. However, while the analogy may be apt, with respect to the industry of Mr Emmett SC and those assisting him, I consider the present task to be so fact-specific that what sentence was imposed in other cases is of no real assistance. This is not a case where anything in the nature of a guideline judgment on sentencing exists.
3. In undertaking the sentencing task, I have borne in mind that Mr Whit's conduct has been a criminal contempt involving serious or contumacious disregard of the Orders. That seriousness is established by the Executor Issue and the Circumstances. I have also taken into account the aggravating matter referred to in [82] above. The Executor Issue places a particular emphasis upon the need for a sentence that would be sufficient to deter others from similar conduct and remind executors generally of the importance of their obligations as such both inside and outside the courtroom.
4. Insofar as coercing compliance is concerned, I have taken into account that the length of sentence should be sufficient to encourage that compliance, but not so long as to be disproportionate. Nevertheless, because the term assumes that Mr Whit will not have taken the last opportunity that the Court has given him to comply with the Orders (and thereby again not fulfil assurances of compliance given to the Court), the length of the sentence must be a proper punishment.
5. However, in favour of Mr Whit, I have taken into account in determining the length of any such sentence his age and personal circumstances as set out in his affidavit reproduced in paragraph [62] above. I have also taken into account the overall need for the sentence to be proportionate in the context of all of the matters set out in [81] to [92] above.
6. For these reasons, I determined that a sentence of one year was appropriate. Although this is not a dispositive consideration, I also gave some weight to the fact that this was the same order of the period of delay which Mr Whit's conduct had imposed upon the orderly progress of the litigation. As I have already said, given Mr Whit's second affidavit set out in [63] above, I was satisfied that notwithstanding his failure to comply with his previous assurance in the face of the Court that he would comply, there was a proper basis for the Court to offer him one last chance by imposing the sentence on terms that it be suspended if he complied with the Orders by 24 March 2023, being 15 days after the hearing.

Inviting submissions as to appropriateness of sentence

1. Finally, at the conclusion of the hearing, I asked both counsel whether they wished to make any submission about whether the one year sentence I proposed was or was not within a range appropriate for an offence of this kind. Mr Emmett SC responded that, in his submission, the one year sentence was within an appropriate range. Mr Spohr did not wish to be heard against that proposition.
2. I made this request to counsel conscious, as I infer were they based on the submissions they then made, of the law in the strictly criminal setting as laid down by the High Court in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 (Barbaro). The effect of that decision in this context would have been to prohibit an inquiry or submissions of the kind to which I have just referred. However, this again is an example of where the different juridical nature of contempt, including criminal contempt, means an analogy should not be drawn too readily between a criminal prosecution and a case such as the present.
3. A better analogy, if one is required, is with the decision of the High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 to the effect that in a civil penalty proceeding a court can receive submissions as to what would be an appropriate pecuniary penalty. A proceeding for a civil penalty is a closer, but still not perfect, analogy to a contempt action than a criminal prosecution.
4. Barbaro was itself considered by the High Court in CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9, where the Court (at [38] per French CJ and Gageler J and [64] per Kiefel, Bell and Keane JJ) observed that in criminal matters the Crown nevertheless has an obligation to assist the court to avoid appealable error in sentencing. As a matter of both practice and policy, I consider that approach to be applicable in contempt proceedings brought by the Prothonotary as an officer of the Court. As a practical matter, sentencing for contempt has neither the corpus of authority nor the daily lived experience of the criminal jurisdiction, such that the assistance of the Prothonotary on the question of appropriate sentence is of particular assistance.

Conclusion

1. The orders set out in [4] above were made accordingly.

Costs

1. Costs were reserved because I was informed that the submissions of the Prothonotary as to costs would depend on whether or not the sentence was suspended.

Amendments 24 March 2023 - Amendment to paragraph 46(2)(a). Deleted the words "in the name of or for the benefit of the Estate" and replaced by the words "by the Defendant" (24/03/2023). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2023