SeaRoad Shipping Pty Ltd v Pannell & Ors [2025] VSC 282

2 On 19 December 2024 McDonald J made a freezing order in what might be described as the standard form (19 December 2024 Order). That order had a return date of 3 January 2025. Paragraph 8 of the 19 December 2024 Order required Mr Pannell and ICSA to swear an affidavit providing information, which may broadly be described as listing their assets, identifying various bank accounts and deposing to the receipt of any funds from the plaintiff within 28 days of the making of the order (Assets Affidavit).

3 On 3 January 2025 I made an order extending the operation of the freezing order of 19 December 2024 until the hearing and determination of the proceeding or until further order (3 January 2025 Order). On 3 January 2025 I did not make any order in the form of paragraph 8 of the 19 December 2024 Order. That is explained by an interchange which occurred at the hearing on 19 December 2024, which made plain that his Honour McDonald J's intention was that paragraph 8 of the 19 December 2024 Order would continue in effect, unless an order was made on 3 January 2025 to vary it. No such order was made.

4 By reason of the way time is counted under the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules) the Assets Affidavits were due on 2 February 2025. No Assets Affidavits have been filed by Mr Pannell or ICSA in compliance with paragraph 8 of the 19 December 2024 Order.

5 On 8 April 2025 the plaintiff filed a summons which sought findings that Mr Pannell and ICSA were guilty of contempt in their failure to comply with paragraph 8 of the 19 December 2024 Order. The summons annexed four charges with particulars, which I will come to later.

6 On 24 April 2025 the plaintiff filed a summons seeking leave to add a fifth charge to its summons relating to an alleged breach of my 3 January 2025 Order. Each of the 8 April and 24 April summonses were made returnable on 1 May 2025.

7 Prior to the hearing of 1 May 2025, on 30 April 2025, the solicitors for the plaintiff received a text message from Mr Pannell which said that:

(a) he would not be attending court the next day;

(b) he was currently in Northern Victoria completing regional site audits until the following Wednesday; and

(c) he would be available any time, Thursday or Friday of the following week for 'any interview process or whatever'.

8 Mr Pannell then purported to list his assets, which he described in the following terms:

My assets that I have are owned by myself and my ex wife - Lynise.

x 2 times properties which are facilitated by bank mortgages in joint accounts.

As for other assets I have there are not many - basically any furniture that is jointly shared in the house of 22 Gordon blvd gisborne Sth.

I have no motor vehicle or any other transport that I own.

I am lucky enough to be supplied a company vehicle, which I basically now live in, as I have no home or address where I currently live.

By hellbent out of Aimee's jewel - but I sold that to a work partner of mine back in November of 2024, because, at the time, I had been unemployed for 4 months, and needed to pay bills.

9 On 1 May 2025 I granted leave to the plaintiff to add the fifth charge of contempt to its summons and adjourned the hearing of all charges until 9.30am on 9 May 2025. Further, I made an order that Mr Pannell attend the hearing in person on that day.

10 On 1 May 2025 the solicitor for the plaintiff sent a text message to Mr Pannell advising him of those orders, as well as serving him by email, in accordance with those orders.

11 On 6 May 2025 the solicitors for the plaintiff sent Mr Pannell another text message seeking confirmation that he would be complying with the Court's order that he attend in person on 9 May 2025 at 9.30am. Shortly after, Mr Pannell replied, 'Yes I comply. And I will be there.'

12 On 8 May 2025 the solicitors for the plaintiff emailed Mr Pannell asking that he advise whether he and/or ICSA intended to plead guilty to the charges of contempt. Mr Pannell sent a text message saying that he would reply to that letter prior to the hearing on 9 May 2025.

13 At 9.18am on 9 May 2025 Mr Pannell sent a text to the solicitor for the plaintiff stating:

I wasn't aware I needed to enter a plea at a hearing.

However if a plea is required, I'll be pleading not guilty to the sale of the horse, as this sale was conducted prior to any order to freeze.

The reference to the 'sale of the horse' is a reference to the subject matter of the fifth charge.

14 On 9 May 2025 Mr Pannell was not present at the commencement of the hearing at 9.30am.

15 At 10.05am, Mr Pannell sent an email to the solicitor for the plaintiff, stating that his car had been swiped by a large kangaroo on his way to court, that he had no working indicator left and that his windscreen had a crack through it. He said he was waiting for roadside assistance and that this was his reason for non‑attendance. Attached to the email are photos of a vehicle which appears to have sustained damage to its left front panel and appears to have a crack in the windscreen.

16 On 9 May 2025 the plaintiff indicated that it wished to adjourn the hearing of the fifth charge of contempt to allow it time to consider further documents which are to be produced by Ms Maree Wilke, who has been described by Mr Pannell as his partner or work partner. The plaintiff, however, made its submissions as to the first four charges, all of which relate to the failure to comply with the order for Assets Affidavits.

17 On 9 May 2025 I adjourned the hearing of the plaintiff's contempt summons to today and made a further order that Mr Pannell attend in person. Mr Pannell has failed to attend today's hearing. In the circumstances, I am satisfied that I should proceed to deliver judgment in relation to the charges in his absence.

18 At this stage it is appropriate that I set out Charges 1 and 4 contained in the amended summons. Charge 1 reads:

In breach of paragraph 8 of the Freezing Order made by the Honourable Justice McDonald in this proceeding on 19 December 2024 (19 December 24 Freezing Order), which order was served on Mr Pannell and of which he had knowledge, Mr Pannell wilfully did not swear and serve on SeaRoad an affidavit as required by that paragraph of that order on or before the time limited by that paragraph of that order.

A copy of the 19 December 24 Freezing Order is Annexure B to this summons.

SeaRoad refers to the penal notice contained in the 19 December 24 Freezing Order.

The 19 December 24 Freezing Order was served on Mr Pannell by email from HWL Ebsworth Lawyers, the solicitors for SeaRoad, sent on 19 December 2024 to the email addresses referred to in paragraph 1(c) of that order, namely: indcsa2@gmail.com or tpain2858@gmail.com.

By that fact, further or alternatively, by inference arising from an email from Mr Pannell sent to HWL Ebsworth Lawyers on 3 January 2025 at 6:59am, Mr Pannell had notice of the terms of the 19 December 24 Freezing Order. Particulars of that email are known to Mr Pannell and a copy is attached to the affidavit of Christopher Thomas Egan affirmed on 7 April 2025 in support of this summons. Paragraph 8 of the 19 December 24 Freezing Order relevantly provided that the affidavit required of Mr Pannell by that paragraph be sworn and served within 28 days after the date of those orders. Rule 3.04(1) (Rule 3.04(1)) of the Supreme Court (General Civil Procedure) Rules 2015 (Supreme Court Rules) at all material times has provided that: "In calculating the time fixed by these Rules or by any order fixing, extending or abridging time, the period from 24 December to 9 January next following shall be excluded, unless the Court otherwise orders." Accordingly, not counting that period and the day upon which the 19 December 24 Freezing Order was made, paragraph 8 of that order provided that the affidavit required of Mr Pannell by that paragraph be sworn and served by 2 February 2025.

Mr Pannell has not within the time limited by paragraph 8 of the 19 December 24 Freezing Order, or at any stage up to the date of this summons, sworn and served on SeaRoad an affidavit as required by paragraph 8 of that order.

Mr Pannell has not at any stage taken any steps to have paragraph 8 of the 19 December 24 Freezing Order varied or discharged. Further, it has not served on SeaRoad any affidavit which endeavours to comply with that order.

ICSA, in breach of paragraph 8 of the 19 December 24 Freezing Order, which order was served on it and of which it had knowledge, wilfully did not swear and serve on SeaRoad an affidavit as required by that paragraph of that order on or before the time limited by that paragraph of that order.

19 The particulars to that charge are, with appropriate adaptation for the different identity of the person charged, the same as the particulars sub‑joined to paragraph 1.

20 The principles applicable to a finding for civil contempt are not in doubt and are conveniently set out in the judgment of John Dixon J in Deputy Commissioner of Taxation v Gashi (No 2) [2011] VSC 351 (Gashi).

21 Firstly, at paragraph [17] of Gashi his Honour averts to the proposition that contempt must be proved, whether it is a civil or criminal contempt, beyond reasonable doubt.

22 Secondly, at paragraph [18] his Honour sets out the elements which must be proved in a case such as this. They are as follows:

(b) the terms of the order are clear, unambiguous and capable of compliance;

(c) the order was served on the defendant or excused in the circumstances or service was dispensed with pursuant to the rules of Court.

(d) the defendant had knowledge of the terms of the order; and

(e) the defendant breached the terms of the order.

23 At paragraphs [22] and [23] of Gashi, his Honour provides a useful discussion of the content of the phrase, 'wilfulness', in the context of a wilful breach of an order:

[22] In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd, Gillard J, after considering the English cases and the High Court's decision in Australasian Meat Industry Employees Union & Ors v Mudginberri Station Proprietary Limited, identified the principle applying in Victoria to be that, given the requisite knowledge of the order, a civil contempt usually requires that the plaintiff establish that the alleged contemnor had knowledge of the terms of the order and that he deliberately committed an act or omitted to do some act which had the effect of breaching the order. Unless the terms of the order require otherwise, the plaintiff does not have to prove that the act or omission constituting the breach was accompanied by an intention to deliberately breach the order. Neither do the proofs require the contemnor to be aware of the full terms of the court order. It is sufficient if the contemnor knows the substance of the prohibition and knowingly acts in a manner contrary to it.

[23] In Scott v Evia Pty Ltd, Dodds-Streeton J agreed that the authorities established it is generally unnecessary to prove that the contemnor committed the breach with an intention to disobey. If, however, the disobedience were "casual or accidental or unintentional" as distinct from "deliberate and voluntary", then although it would prima facie give rise to liability, the Court might nevertheless decline to exercise the contempt jurisdiction. If the Court did exercise the jurisdiction, the casual or accidental or unintentional nature of the breach would be relevant to whether a penalty should be imposed, and if so, what it should be. Thus, any disobedience of an injunction which is worse than casual, accidental or unintentional will be regarded as wilful. The distinction is between the deliberate or intentional nature of the act constituting the breach of the order and a breach characterised by an element of defiance - contumacious disobedience.

24 In this case, matters are relatively straightforward. I am satisfied that it is established beyond reasonable doubt that:

(a) The 19 December 2024 Order was made by the Court;

(b) The terms of paragraph 8 of that order are clear, unambiguous and capable of compliance;

(c) In accordance with paragraph 1(c) of the 19 December 2024 Order, the 19 December 2024 Order was served upon Mr Pannell and ICSA. That is confirmed by the affidavit of Christopher Thomas Egan affirmed 7 April 2025; and

(d) It is plain that each of Mr Pannell and ICSA had knowledge of the terms of the order:

(i) In Mr Pannell's case, this is demonstrated by an email from Mr Pannell to the plaintiff's solicitors on 3 January 2025 at 6.59am which states:

Good morning Peter, Im sorry, I have only just seen this email, and further emails i have been copied into. I have received nothing else nor any phone calls from anyone regarding this matter, as i am currently in QLD with work. I will not be attending today, nor did i realise my Lawyer was no longer representing me. Please appreciate and apologise to the court for my non attendance in this matter, as i will not be present. I am yet to receive anything in writing from my Lawyer that they are not representing me anymore, and i will now have to seek Legal Counsel on this matter, as clearly i have none. kind regards, Troy.

Further, the text message of 30 April 2025 where Mr Pannell purports to set out his assets is a further matter from which it can be inferred he had knowledge of the terms of the order; and

(ii) In the case of ICSA, knowledge is demonstrated because Mr Pannell has knowledge and he is ICSA's sole director and shareholder.

(e) Each of Mr Pannell and ICSA has breached the 19 December 2024 Order. They did not file Assets Affidavits by 2 February 2025. In fact, they have not filed them to date.

25 I am satisfied that their conduct is deliberate and intentional in nature, that it is not casual, accidental nor unintentional. As a result, I am satisfied that their breach of the order is wilful.

26 Thus, each necessary element of Charges 1 and 4 has been, in my view, proved beyond reasonable doubt.

27 In light of the fact that both these defendants are not legally represented, I have considered whether, notwithstanding the elements of contempt have been proved, I should nonetheless not convict.

28 In particular, I have considered whether, notwithstanding that it is not in affidavit form, the 30 April 2025 text message constituted a genuine attempt at compliance with paragraph 8 of the orders. In the circumstances, I am not satisfied that it does. The text message does not provide all of the information which the 19 December 2024 orders requires. It provides no information at all regarding ICSA and does not provide much of the information required by paragraph 8 in respect of Mr Pannell.

29 In short, I am not satisfied that the 30 April 2025 text constituted a genuine attempt at compliance with paragraph 8 of 19 December 2024 Order.

30 All of the requisite elements for Charges 1 and 4 having been proved, I intend to record the finding that Mr Pannell is guilty of Charge 1 and that ICSA is guilty of Charge 4.

31 This leaves Charges 2 and 3. The plaintiff submits, and I accept, that Charges 2 and 3 are alternatives and that it is only appropriate to convict on one. It also submits that if the Court convicts on Charge 3, it does not press Charge 2, and presumably, if I convict on Charge 2, it will not press me on Charge 3.

32 I turn first to consider Charge 2. Charge 2 is as follows:

Further or in the alternative, Mr Pannell, as the sole director and proper officer of ICSA, has helped or permitted ICSA to breach paragraph 8 of the 19 December 24 Freezing Order, which order was served on ICSA and him and of which they had knowledge, by wilfully and knowingly causing ICSA to fail to swear and serve on SeaRoad an affidavit as required by that paragraph of that order on or before the time limited by that paragraph of that order.

The particulars to this charge are in essentially similar form to the particulars annexed to Charges 1 and 4.

33 In Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd [1999] FCA 585, her Honour Justice Kiefel, as her Honour then was, said:

[41] Directors who have notice of a Court order (as to which see Madeira v Roggette, 364) are under a duty to take reasonable steps to ensure that it is obeyed, and if they wilfully fail to do so and the Order is breached they may also be held liable for contempt: Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd [1990] 1 WLR 926, 336. As the judgment there shows, it may be a defence that the director reasonably believed some other director or officer was taking those steps. Omission may also suffice for a finding of contempt since a failure to supervise, investigate, "or wilful blindness" on the part of a director may qualify the conduct as contemptuous: A-G for Tuvalu, 938.

34 That decision has been followed in this Court by her Honour Justice Zammit in Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556 at paragraphs [32] and [33].

35 In Sidebottom v R [2018] VSCA 280, the Court of Appeal upheld an appeal against the decision of Justice Zammit, but this was on other grounds and her reasoning in paragraphs [32] and [33] was not the subject of any criticism or qualification.

36 On the facts of this case, no issue arises as to any reasonable belief which Mr Pannell could have regarding the conduct of other directors, there being none.

37 In the circumstances, I am satisfied beyond reasonable doubt that Mr Pannell is guilty of a contempt in the terms set out in Charge 2. As a result, I do not need to consider Charge 3.

38 Again, I have considered whether, notwithstanding that I have found the elements of the contempt proven, I should refrain from making a finding of contempt. For the reasons I have set out in relation to Charges 1 to 4, in the circumstances, I have determined it is appropriate to record a finding that Mr Pannell is guilty of the contempt as alleged in Charge 2 of the summons.

39 I will make a finding that Mr Pannell is guilty of the contempt as alleged in Charges 1 and 2 of the summons.

40 I will make a finding that ICSA is guilty of a contempt as alleged in Charge 4 of the summons.

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