In addition to this discussion of par (b), two things may be said about the rule arising from this decision. It is clear that it is not the only rule under which an alleged contemnor may be arrested to answer a charge of contempt. And it is made plain that, although contempt proceedings may proceed in the absence of the contemnor, the Court has power to order an alleged contemnor to appear to answer the charge and, if need be, to order the arrest of the contemnor so to do.
11 I turn to the structure of Part 55 r 10. Although some matters of the construction of the rule do not appear to be clear, the general structure of the rule does seem clear to me. Initially there must be established two matters. The first, in paragraph (a), is simple, that is, that a charge of contempt has been brought. The second, far more difficult, is set out in paragraph (b), to which I shall return. Once those matters are established as a matter of fact, the word "may" in the body of the rule makes it plain that the Judge then has a discretion as to whether or not to issue the warrant. Without in any way attempting to spell out exhaustively the considerations that may be material in relation to the exercise of this discretion, it does seem to me that the strength of the case in support of the charge of contempt is one such consideration.
12 Another difficulty that arises in relation to the interpretation of the rule is whether or not the warrant, when issued, should contain a provision for the giving of security and the sum in which security should be given, or whether the intention of the rule is that that subject matter should be attended to only when the alleged contemnor is brought before the Court on the warrant. The latter view, namely, that it should not initially be included in the warrant, was taken by the learned authors of Neville & Ashe, Equity Proceedings with Precedents (New South Wales) (1981). Their form of warrant does not include a provision for security: Precedent 23(9). The opposite view was taken by Kirby P in Patton v Harrison [No 1] supra. It seems to me that the view taken by his Honour should govern the practice of the Court, so that warrants when issued provide a mechanism whereby the contemnor may avoid arrest or obtain immediate release by the giving of the security which has already been defined.
13 At first it seemed to me that the terms of the rule precluded the issue of a warrant when the contemnor was not within the jurisdiction. Mr Kunc, of counsel for the plaintiffs, countered this suggestion with the example of a hypothetical person writing an explicit letter (as did the contemnor in Patton v Consolidated Press Ltd (No 1) supra), but in the following terms: "I am in New Zealand, I am about to return to Sydney, pack my bag, leave Australia, and I will not be present on the relevant occasion." This, he said, would indicate a likelihood of absconding, although the writer was not in Australia. Essentially, in my view, Mr Kunc's contention is correct. In a sense what his contention does is highlight yet again the general dangers of glosses on statutes or rules. What is important to focus on as the vital question is the question posed by the relevant statute or rule. Here it is the question of whether it is likely that the contemnor will abscond. The considerations going to the answer to that question may be rather different depending on whether the contemnor is within or without the jurisdiction at the time in respect of which the question is to be answered. But Mr Kunc's example demonstrates that there are circumstances in which the central question, whether it is likely that the contemnor may abscond, may be answered, yes, although at the time the contemnor is not within the jurisdiction.
14 Turning back to the content of paragraphs (a) and (b) of r 10, it seems to me that the strength or weakness of the case of contempt is not a relevant consideration within paragraph (a), much less is there a requirement that a prima facie case of contempt be shown in order to establish precondition (a). As I have already said, the precondition is simply that a charge of contempt has been brought.
15 The content of the second precondition in paragraph (b) is a matter of much greater difficulty. The first difficulty arises from the use of that slippery word "likely". I describe the word as "slippery" because there is no doubt that the meaning to be attributed to it differs widely in different contexts: see the definition of "Likely" in Butterworth's Australian Legal Dictionary (1997); and see Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 at 339 - 340 per Bowen CJ; and Boughey v The Queen (1986) 161 CLR 10 at 20 per Mason, Wilson and Deane JJ. In some contexts it means "probable" as opposed to "possible": Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303 at 311 - 312 per Bray CJ. In other contexts it means only "having a substantial, real, and not remote chance of causing the result.": R v Teremoana (1990) 54 SASR 30 at 40 per Cox J. Where it is to be found in the spectrum between these extremes varies according to the statutory context.
16 In the present context it seems to me that "likely" should be construed as requiring the establishment of a probability on the balance of probabilities. I come to this conclusion because the rule is draconian in effect, permitting the arrest and deprivation of liberty of a person at an early stage of contempt proceedings and before the alleged contemnor has in any way defaulted in appearing to answer the charge, much less been found guilty of contempt. In those circumstances it seems to me that the rule should be construed as justifying arrest only where a case is made out on the probabilities that the person will absent himself or herself as outlined in the balance of the rule.
17 The other difficulties in relation to the interpretation of this rule arise as to the meaning in it of "abscond" and "withdraw". "Abscond" is defined in the Macquarie Dictionary (3rd Ed, 1997) as, "to depart in a sudden and secret manner, especially to avoid legal process." There is, I think, no doubt, and it is not contended otherwise, that the word "abscond" contains the notion of a purpose of avoidance. The word "withdraw" as used in the rule is relevantly defined in the same Dictionary as "to retire; retreat; go apart or away." I do not think there is a notion in the word "withdraw" of a purpose of avoidance. However, I do not think that the word is used in the rule to refer to a fleeting or a short absence. It seems to me that the word suggests an absence that is of some considerable length or indefinite. This is because it is in a context where what is contemplated is that the alleged contemnor will not appear in answer to the proceedings. The absence, in any event, of a sense of purpose from the meaning of "withdraw" in the context is confirmed by what Kirby P said in Ritter supra.
18 There has been more controversy before me as to the meaning of the word "abscond". Mr Epstein, of Senior Counsel for the first defendant, has contended that the verb "abscond" in paragraph (b) is modified by the adverbial phrase "from the jurisdiction" as much as is the verb "withdraw". Mr Kunc has on the contrary contended that "from the jurisdiction" modifies only "withdraw" and that departure from the jurisdiction is not necessary to the concept of abscond within the meaning of the rule. He says, therefore, that the plaintiffs may rely, in establishing the proposition in paragraph (b), on the behaviour of the defendant concealing his whereabouts when he is in New South Wales, even from his own solicitor, being likely to be repeated upon his return to the State. I am of the view, however, that Mr Epstein's contention is correct. In some circumstances where an adverbial phrase is used after two verbs, it may be unclear whether it modifies only the latter of the two or modifies both. However, in my view, the use of the word "otherwise" before "withdraw" makes it plain in paragraph (b) that, whilst inherently one may be able to abscond within the jurisdiction, it is absconding from the jurisdiction that is referred to in the paragraph. The conclusion I have come to is again supported by the conclusion come to by Kirby P in Ritter's case as set out above at [10]. Incidentally, a different conclusion may well be indicated by the wording of r 75.08 in Victoria and the Northern Territory.
19 On the basis of my conclusions as to the construction of the rule, I turn first to the question of whether the preconditions for the exercise of the discretion have been established. As I have already indicated, it is quite clear that a charge of contempt has been brought. However, I am not prepared to find that the plaintiffs have established that it is likely that the first defendant will abscond or withdraw from the jurisdiction within the meaning of paragraph (b). There is strength in Mr Kunc's reference to the peculiarity of the first defendant's behaviour as to his whereabouts whilst in New South Wales. However, the question here is whether he is likely to leave New South Wales in circumstances which will preclude his answering the charge of contempt. So far as it is established, he has a pattern of moving between New South Wales and overseas, particularly China, in the course of conducting his life. He has been out of New South Wales on a number of occasions over the last two years and has always returned. He still has considerable family connections with New South Wales. He was out of New South Wales when this motion was taken out, so that his present absence cannot be attributed in any way to the making of the charge of contempt. There is at the moment no hard evidence which casts doubt on his word conveyed to the Court that he intends to return to New South Wales at Christmas. The likelihood required by paragraph (b) is not in my view established in the requisite way on the present evidence.
20 In those circumstances, the exercise of the Court's jurisdiction for the issue of a warrant is not invigorated. If the discretion did fall to be exercised, one factor that would have to be borne in mind is that, at least on the present evidence, it cannot be said that the case in favour of the commission of a contempt is entirely clear. There certainly appear at this stage to be issues as to facts that will have to be determined before contempt can be established.
21 In those circumstances the motion brought by the plaintiffs must fail and will be dismissed.
…oOo…
22 I have now heard debate on the orders that I ought make as a result of views that I have formed as to the costs of the application before me. The application for the issue of a warrant of arrest under Part 55 r 10 is not the whole subject matter of the notice of motion and will not lead to the notice of motion being dismissed. The appropriate order is that I dismiss the plaintiff's application for the issue of a warrant under Part 55 r 10. I have further heard argument as to the order for costs that should be made on that application. Whilst, as Mr Kunc has said, this application is part of an ongoing process which is not yet completed, on the other hand it is, as Mr Epstein has said, a discrete application which depended on conflicting views of the law. The view that the plaintiffs took of the law has been held to be incorrect and it has failed accordingly. In those circumstances, in my view, the appropriate order is that the plaintiffs pay the first defendant's costs of this application.