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[2010] QCA 214
General information, not legal advice.
Court of Appeal (Qld)
2010-08-13
McMurdo P and Muir JA and Applegarth, JSeparate reasons for judgment of each member of the Court, each, concurring as to the orders made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Remely v Vandenberg & Ors [2010] QCA 214
PARTIES: OTTO REMELY (appellant/applicant) v ACTING REGISTRAR A SANNA (first respondent) GEOFF AND LARAINE VANDENBERG (second respondent)
FILE NO/S: Appeal No 522 of 2010 / SC No 1 of 2006
DIVISION: Court of Appeal
PROCEEDING: Application for Stay of Execution / General Civil Appeal / Miscellaneous Application – Civil
ORIGINATING COURT: Supreme Court at Bundaberg
DELIVERED ON: 13 August 2010
DELIVERED AT: Brisbane
HEARING DATE: 5 August 2010
JUDGES: McMurdo P and Muir JA and Applegarth J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: **The appeal be dismissed with costs;**The applications filed on 29 June 2010 be dismissed with costs
CATCHWORDS: PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT - WHAT CONSTITUTES – IN GENERAL – appellant ordered to appear at an enforcement hearing and produce certain documents – appellant failed to produce documents – appellant refused to answer relevant questions – primary judge found appellant in contempt of court and ordered appellant be imprisoned for six months – appellant argued he was found in contempt due to an irregularity in process – whether appellant in contempt of court / PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT - WHAT CONSTITUTES – IN GENERAL – primary judge found appellant in contempt of court and ordered appellant be imprisoned for six months – whether sentence manifestly excessive / APPEAL AND NEW TRIAL – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – appellant sought an order staying or setting aside the costs order made on 5 January 2009 – whether costs order should be stayed or set aside / APPEAL AND NEW TRIAL – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – appellant sought declarations that the orders giving rise to the enforcement hearing and the orders resulting from the hearing be declared a nullity – whether orders should be declared a nullity / Uniform Civil Procedure Rules 1999 (Qld), r 371, r 803, r 808, r 809, r 812, r 815, r 820, r 828 / City Hall Albury Wodonga Pty Ltd v Chicago Investments Pty Ltd [2006] QSC 31, cited / Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536, distinguished / Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, cited
COUNSEL: The appellant/applicant appeared on his own behalf / R Dickson for the second respondent
SOLICITORS: The appellant/applicant appeared on his own behalf / Payne Butler Lang for the second respondent
McMURDO P: I agree with Muir JA's reasons for refusing the appeal and dismissing the applications with costs.
MUIR JA: The appellant appeals against an order of a judge of the trial division of this Court holding him guilty of contempt of court and ordering that he be imprisoned for six months. The appellant complains in his grounds of appeal of an irregularity in the process which led to him being found in contempt of court. In order to understand that complaint it is desirable to explain the relevant facts before considering the grounds of appeal.
A brief account of events leading up to the hearing before the primary judge is contained in the reasons of McMurdo P in Remely v Vandenberg & Anor.1 After explaining that the appeal before the Court was from the order of Chesterman JA, refusing to stay the order made by the primary judge on 22 December 2009, her Honour said:
"[2]In all these matters, and some others, Mr Remely, who is not a lawyer, has represented himself, as he did in this hearing. He has not been a successful litigant. He lost a dispute in the Small Claims Tribunal with Geoff Vandenberg and Laraine Vandenberg, who are the second respondents in this appeal. The dispute concerned a $200 electricity bill. He unsuccessfully applied for review of that decision to a judge of the trial division of this Court. He was then unsuccessful in his attempt to appeal from that order to this Court. A number of costs orders were made against him, some on an indemnity basis. In time, the Vandenbergs sought to enforce some of their costs orders. An enforcement hearing ultimately proceeded before the first respondent, Acting Supreme Court Registrar Sanna, on 10 July 2009.
[3]At that hearing, Mr Remely did not produce all the documents he had been ordered to produce. He refused to answer relevant questions put to him by counsel on behalf of the Vandenbergs. Mr Remely deposed in an affidavit that he did not intend to provide the court with further information and that he intended to refuse to comply with the court's orders." (footnotes deleted)
By an enforcement hearing summons issued on 21 January 2009 pursuant to r 808 of the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR), the appellant was ordered to attend an enforcement hearing before the Court "to give information and answer questions about the enforcement debtor's property and other means of satisfying the order debt". He was also ordered to produce certain documents and to complete a statement of his financial position in Form 71 of the forms made under the UCPR.
The enforcement hearing summons related to a judgment entered in the Supreme Court at Bundaberg on 5 January 2009 ordering the appellant to pay the second respondents' costs assessed at $10,592.64. The appellant made application for various orders, including orders that the enforcement hearing be referred to a judge, and that the order to produce documents for the purpose of the enforcement hearing be set aside. Those applications came before McMeekinJ on 27 April 2009. In his reasons delivered on 12 May 2009 his Honour explained that the second respondents had obtained three costs orders against the appellant and that they had obtained an enforcement warrant for the seizure and sale of property in respect of one order totalling $31,644.22.
All of the appellant's applications were dismissed on 12 May 2009 and McMeekin J ordered that the enforcement hearing be referred back to the Registrar for hearing.
A hearing took place before Acting Registrar Sanna on 10 July 2009. Mr Sanna is the first respondent in this appeal but for convenience I will refer to him as the Registrar. In the course of the hearing the appellant contended that there were defects in the procedure employed in relation to the enforcement hearing. He asserted that an enforcement warrant for the seizure and sale of the property had to be handed to an enforcement officer by the Registrar and that this had not happened. It followed, according to his argument, that the enforcement hearing summons was void or ineffective. For this proposition he relied on r 820 and r 828 of the UCPR.
There was no admissible evidence before the Registrar to support the appellant's assertions concerning the warrants and the Registrar informed the appellant that he had the original warrants from the file in his hands. Counsel for the respondents applied to cross-examine the appellant concerning "his property and other means of satisfying the order debt". The appellant asserted that the enforcement hearing was a nullity and said that he would not deal any further with nullities. The Registrar then informed him that if he did not cooperate, he would leave himself open to charges of contempt of court. He requested that the appellant cooperate.
Counsel for the respondents commenced questioning the appellant who, after answering some relatively formal questions, asserted that he would not answer any questions. He was again warned by the Registrar of the possible consequences of failing to answer, including that it could be ordered that he be held in custody. The appellant invited the Registrar to "go ahead". In the course of the following discussion, the appellant again said that he wasn't going to answer the question asked of him by counsel for the respondents and proceeded then to make it plain that he would not cooperate with the cross-examiner.
"(i)to give information and answer questions; and
(ii)to produce the documents or things stated in the summons …"
"812 Examination at enforcement hearing
At an enforcement hearing, a person summoned to attend may be examined about an enforcement debtor’s property and other means of satisfying the order debt."
There is nothing in Part 2 of Chapter 19 or elsewhere which limits the Court's power to issue an enforcement hearing summons and to proceed with an enforcement hearing if an enforcement warrant has been issued, whether regularly or otherwise. Consequently, whether one or more enforcement warrants were issued and whether they were or were not given to an enforcement officer to be enforced are irrelevant for present purposes, as the primary judge pointed out to the appellant.
Under r 815, a person summonsed to attend an enforcement hearing who, without lawful excuse, "refuses to answer a question put to the person … or fails to give an answer to the court's satisfaction" may be treated as being in contempt of court.5
The primary judge held, correctly with respect, that:
"… the [appellant] distinctly refused to answer such questions as whether he had: (1) filed a statement of financial position - a document referred to in the summons; (2) operated bank accounts between July 2007 and September 2008; (3) borrowed money to satisfy an enforcement warrant; and (4) dealt with $87,010.97 which he had sworn for the purpose of proceedings in the Court of Appeal he held in a bank account in September 2007.
The [appellant's] refusal to speak about the $87,000 amount was accompanied by an unqualified assertion that he 'Was not going to answer any more questions,' and wished an officer to take him to the watch-house for his conduct in refusing to respond to questions."
His Honour further held that there was no lawful excuse "for the [appellant's] intransigent refusals to answer questions at the enforcement hearing". Applying r 815 (3), his Honour held the appellant in contempt. No error in his findings has been revealed by the appellant in his written outline of submissions.
The appellant complained that the primary judge failed to consider and rule upon his submission in relation to r 820 and r 828. In the course of argument the primary judge plainly spelt out that the appellant's difficulty was that he deliberately disobeyed the order of a superior court which was effective unless set aside.
The primary judge could be excused for not dealing with a related but even less meritorious argument based on r 371 of the UCPR. It was that this rule requires the existence of proceedings before a step can be taken in them. The argument seems to proceed this way. If an enforcement warrant had been issued under r 828 and given to an enforcement officer under r 828(2) and if the property had then been sold and the judgment debt discharged, there would have been no occasion to issue the enforcement summons. In that case, there would have been no proceedings. The argument is simply another way of re-stating the appellant's primary argument and gains nothing from the reference to r 371.
On the hearing of the appeal, the appellant, who had sought an adjournment on the basis that he was unwell, advanced arguments which were outside the grounds of appeal. The adjournment application was refused. I note that the appellant had no discernible difficulty in presenting oral argument, including submissions on the additional points. It was evident that he had prepared them carefully. The additional points, however, were entirely lacking in merit.
The appellant claimed that he was denied natural justice by not being provided with the written outline of submissions provided to the primary judge by counsel for the second respondents. Shortly after the hearing of the second respondents' contempt application commenced, counsel for the second respondents asked if he could hand up a folder containing his written outline of submissions with "some case authorities". The appellant objected, saying he had only "the original outline from [the second respondents' counsel]. If they are any different, then I must object". He said he hadn't been given the cases that counsel was presenting. The primary judge had the documents shown to the appellant, who, after looking at them said that, "… although the submissions I have – appear to be – without checking the records that I have, appear to be the same". He said that some of the cases were referred to in the submissions but that the "cases, per se, had not been referred to me, and I have not been able to respond to them".
There was sworn evidence on behalf of the second respondents that the appellant was provided with a copy of the second respondents' counsel's outline of submissions on about 29 September 2009, more than three weeks before the hearing. There is no evidence that the document then provided differed in any way from the document relied on on the hearing before the primary judge.
"1.The orders which resulted from the hearing on 27 April 2009, ordering to conduct an enforcement hearing, be declared a nullity;
2.The enforcement hearing on 10 July 2009, and the resultant orders, be declared a nullity."
Both of these applications rely on arguments which have no substance for the reasons given earlier. There is no need to comment on their procedural deficiencies. I would dismiss them with costs also. Finally, I note that the applicant has served his sentence. He applied to this court on 13 January 2010 for a stay of the orders under appeal. The stay was refused but the appellant was offered a 15 February 2010 hearing date. He declined to take it even though the consequence of his refusal was that he would be released from custody before his appeal could be heard.
APPLEGARTH J: I agree with the reasons of Muir JA and with the orders that His Honour proposes.
[2010] QCA 51. ↩
Uniform Civil Procedure Rules 1999 (Qld), reprint 6A, r 803. ↩
Uniform Civil Procedure Rules 1999 (Qld), reprint 6A, r 809(1)(a). ↩
Uniform Civil Procedure Rules 1999 (Qld), reprint 6A. ↩
Uniform Civil Procedure Rules 1999 (Qld), reprint 6A, r 815. ↩
(1992) 177 CLR 292. ↩
[2006] QSC 31. ↩
C.f. Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. ↩
Remely
Vandenberg & Ors
(1993) 46 FCR 225
(1992) 177 CLR 292
Questioned about a sum of $87,000 which had been withdrawn from his bank account, he refused to say where the money had gone or to produce documents relating to it. The Registrar ordered that he be held in custody and the appellant was then arrested by a police officer. On 20 July 2009 the Registrar filed an application that the appellant be punished for contempt of court.
The second respondents applied on 30 July 2009 for an order that the appellant be found in contempt of court and punished. On 19 August 2009 a judge gave directions for the conduct of the two applications.
The two applications came for hearing before the primary judge on 22 December 2009. The Registrar took no part in them. In the course of the hearing the appellant admitted that part of the background to the matter was that he decided not to comply with orders of the Court because he was upset with the conduct of others. In his submissions, the appellant sought to re-agitate his argument concerning r 820 and r828 of the UCPR. The appellant argued that if enforcement warrants had been given to an enforcement officer he would have sold the appellant's land, which would have satisfied the costs orders, in consequence of which there would have been no requirement for the enforcement hearing. The primary judge informed the appellant, accurately, that any defect or irregularity such as that alleged, did not relieve the appellant of his obligation to comply with an order of a superior court. The appellant also raised a defence of provocation. He explained that the provocation arose out of various costs orders made against him which he considered unjustifiable. He asserted that he was "totally outraged".
I now turn to the grounds of appeal. Grounds 6, 7 and 8 are the only matters identified in the Notice of Appeal as grounds which are capable of taking effect as such. By grounds 6 and 7, the appellant sought to agitate the point raised before the Registrar and the primary judge in relation to r 828 of the UCPR. There is no substance in the appellant's contention. The role of enforcement hearings is to enable judgment creditors to obtain information to facilitate the enforcement of a money order.2 Part 2 of Chapter 19 of the UCPR provides for enforcement hearings. Rule 809 required a person to whom an enforcement hearing summons was directed to attend before the Court issuing the summons at the time stated in the summons:3
The appellant's primary complaint appears to be that another copy of the outline of submissions, which was handed to the associate, had written annotations, making it different from the document served on him. The argument is spurious. Very shortly after the exchange discussed earlier, the primary judge said that he would give his associate a copy of the outline of submissions and that the associate would extract from the files the documents referred to in the outline. Counsel for the second respondents said to the judge that it might assist the associate if a further copy of the outline was given to her. Counsel observed that the judge "will see that in handwriting, [he] … tried to assist by putting the document number from the file …". The appellant now complains that he did not see this altered document. He could have asked to see it but did not. But there was then, and there is now, no reason to suspect that there was any difference between the document handed up and the document in the appellant's possession, apart from the addition of document file numbers. No complaint was made on the appeal about the cases. That is understandable. On the hearing, no reference was made to any of the cases referred to by the second respondents' counsel in his outline of submissions by the second respondents' counsel or by the primary judge. There was no need to do so. The facts were in short compass and clear. No occasion arose for the investigation of principles which required or warranted resort to authority. The appellant, who would have been quick to assert disadvantage, had he perceived one, made no further complaint to the primary judge about copies of cases. In this regard, I note that there no sworn evidence was placed before the Court concerning whether the appellant was given copies of the cases during the hearing.
The other matter raised at some length by the appellant was a contention that there had been a breach of the Freedom of Information Act 1992 (Qld) and of the Social Security (Administration) Act 1999 (Cth) in that information relating to the sum of $87,000 withdrawn from the appellant's bank account had been unlawfully obtained from material provided to the Registry in support of an application for exemption from filing fees. The appellant did not demonstrate that the first respondent or the second respondents had used any such information from this source. In any event, it appears that the information in question was contained in documents exhibited to an affidavit filed in the Supreme Court by the appellant which, when filed, was available for inspection by any member of the public. No complaint of this nature was made at the hearing before the Registrar or at the hearing before the primary judge. The point has no merit.
The appellant complained of lacking legal representation before the primary judge. In this regard, he referred to Dietrich v The Queen.6 It was not explained how that case assisted him. He did not request the primary judge to adjourn the hearing to enable him to obtain legal representation or for any other reason.
For the above reasons, the appeal against conviction must be dismissed.
The appellant also appeals against his sentence on the grounds that it was manifestly excessive.
In my view, the penalty imposed has not been shown to be arrived at in error. The offending conduct was engaged in with a view to frustrating the second respondents' attempts to recover moneys lawfully due to them under court orders. The conduct was deliberate and protracted. The appellant was afforded opportunity to comply with his obligations during the hearing before the Registrar. In the period between the hearing before the Registrar and the hearing before the primary judge, the appellant could have offered to comply with his obligations or even to apologise for his conduct. He did not do so, even though the gravity of his conduct was explained to him on more than one occasion. It was pointed out to him that a substantial term of imprisonment was a possibility and that his conduct struck at the effective administration of justice. His conduct was plainly contumacious.
The effective term of imprisonment was four months. In my view such a term was within the range of the exercise of a sound sentencing discretion. As counsel for the second respondents pointed out, the sentence is supported by that imposed in City Hall Albury Wodonga Pty Ltd v Chicago Investments Pty Ltd.7
For the above reasons, I would dismiss the appeal with costs. I would not order costs on the indemnity basis. Although there is not the faintest substance in the appeal against conviction, it can hardly be said that the appellant's conduct in appealing against sentence was unreasonable or vexatious.8 It is relevant also that the proceedings, although civil, have criminal characteristics.
At the end of the hearing, counsel for the second respondents sought directions about the assessment of costs. I do not consider it appropriate to make an order of the type requested. No prior notice was given to the appellant that such an order would be sought.
Also listed for hearing with this appeal were: an application filed on 29 June 2010 for an order that "the execution of the costs order made by the Brisbane Registry of the Court of Appeal on 5 January 2009 be stayed or set aside"; and an application, also filed on 29 June 2010, in which, apart from a costs order, the appellant sought declarations that: