Stoffels v Piper

1. The defendant, Mr Andrew Harry Piper, be fined the sum of $5,000 in respect of his conviction for contempt for failing to comply with order 9 of the orders made by Wigney J on 30 January 2024, as varied by order 1 of the orders made by Wigney J on 13 May 2024.
2. The payment of the fine referred to in order 1 be wholly suspended on the condition that the defendant not engage in any conduct which materially impedes or obstructs the sale of the Property pursuant to the orders made by Wigney J on 30 January 2024.
3. The defendant pay the plaintiff's costs of the plaintiff's application in the proceeding filed 19 April 2024, as amended, in relation to the enforcement of the orders made by Wigney J on 30 January 2024.
4. The costs payable pursuant to order 3 are fixed pursuant to rule 1720(3)(c) of the Court Procedures Rules 2006 (ACT), in the sum of $15,000.

WIGNEY J 1 On 3 June 2024, I convicted the defendant, Mr Andrew Harry Piper, of contempt for failing to comply with orders made by the Court which required him to vacate a property which he jointly owned with the plaintiff, Ms Erika Stoffels. Mr Piper has now vacated the property and thereby purged his contempt. It remains however, to determine what, if any, penalty should be imposed on Mr Piper in respect of his contempt. 2 These reasons should be read together with my previous judgments, which set out the relevant factual background in more detail: see Stoffels v Piper [2024] NFSC 2 and Stoffels v Piper (No 2) [2024] NFSC 4. The facts relevant to Mr Piper's contempt may be shortly summarised as follows. 3 On 30 January 2024, I ordered that the property at 65 Captain Quintal Drive, Norfolk Island (the Property) be sold pursuant to section 4(1)(b) of the Partition Act 1900 (NSW), as that Act applies to Norfolk Island. I also made a number of ancillary orders to facilitate that sale. Significantly, I made the following order (order 9): The defendant vacate the Property within twenty-one (21) days from the date of these orders and deliver the keys to the agent. 4 Mr Piper did not vacate the Property in compliance with that order. 5 On 19 April 2024, Ms Stoffels filed an application by which she sought to enforce the orders made on 30 January 2024. The orders sought by Ms Stoffels in that application included an order requiring Mr Piper to show cause why he should not be found guilty of contempt for failing to comply with the order requiring him to vacate the Property. 6 The matter returned to Court on 13 May 2024 to deal with Ms Stoffels' enforcement action. At that hearing, Mr Piper did not suggest that he had vacated the Property. Instead, he sought to justify his non-compliance with order 9 by claiming, among other things, that he was not able to comply with order 9 because no agent had been appointed. He was therefore not able to return the keys to the agent as required by order 9. 7 Mr Piper's contention in that regard was, strictly speaking, correct. As was noted in Stoffels v Piper (No 2), order 3 of the orders made on 30 January 2024 provided for the appointment of an agent agreed by the parties or, failing any such agreement, an agent selected by the Registrar. As at 13 May 2024, the parties had not reached any agreement in relation to the appointment of an agent and no agent had been selected by the Registrar. It may be noted, however, that Mr Piper had made no attempt to vacate the Property at this time. His claim that he was unable to comply with order 9 because he was unable to return the keys was therefore a rather technical and convenient way to excuse his failure to otherwise comply with the order. It would always have been open to him to return the keys to the Registrar, or raise the issue concerning the return of the keys with Ms Stoffels' solicitor, with whom he had been in contact. He did not do so. 8 To deal with this technicality, on 13 May 2024, on Ms Stoffels' application, I made an order varying order 9 so that it required Mr Piper to return the keys to the Registrar as opposed to an agent. I also made various procedural orders to facilitate the future hearing of Ms Stoffels' enforcement application, including her application in respect of contempt. The application was listed for hearing on 3 June 2024. I made it abundantly clear to Mr Piper that if, at the hearing of the application on 3 June 2024, it was found that he had not by that time vacated the Property, and had therefore failed to comply with order 9, as amended, he might be convicted of contempt and punished accordingly. 9 The matter returned to Court on 3 June 2024. Mr Piper had again not vacated the Property at that time. He did not contend otherwise. Instead, he raised a number of issues or arguments based on his dealings with the bank which holds a mortgage over the Property. He also again raised the issue concerning his inability to return the keys to an agent as originally required by order 9. 10 Those arguments, and the manner in which they were dealt with by the Court, are referred to in Stoffels v Piper (No 2). It is unnecessary to repeat what I said in that judgment. It suffices to note that I rejected as unmeritorious the various arguments advanced by Mr Piper to excuse his non-compliance. I accordingly convicted Mr Piper of contempt. I decided, however, to defer imposing any punishment in respect of the contempt so as to enable Mr Piper to purge his contempt, should he wish to do so. The matter was listed for hearing on 24 June 2024 for the purpose of hearing submissions in respect of the penalty to be imposed on Mr Piper. Procedural orders were made in respect of the filing of evidence and submissions by the parties. 11 The matter returned to Court again on 24 June 2024. It was not, however, possible to proceed with the penalty hearing on that day for at least two reasons. The first reason was that Mr Piper was apparently ill, though that was only communicated to the Court on the morning of the hearing. Mr Piper eventually appeared at the hearing via video link from his bed. The second reason was that there was an element of uncertainty as to whether Mr Piper had completely vacated the Property. While the evidence indicated that he had returned the keys to the Registrar on 11 June 2024, there were clear indications that he had not removed all items of his personal property from the Property. The Court accordingly adjourned the hearing to 15 July 2024 and made further procedural orders. Those orders included an order that the Sheriff provide a report to the Court concerning the Property and orders for the filing of any further evidence and submissions, including evidence from Ms Stoffels concerning her costs of the enforcement proceedings. 12 The evidence currently before the Court clearly indicates that Mr Piper has still not fully removed all items of personal property from the Property. Indeed, the evidence indicates that the Property has been left in an unsatisfactory, if not squalid condition. Items of personal property appear to have been left at the Property along with assorted rubbish and detritus. It is nevertheless appropriate to proceed with the penalty hearing on the basis that Mr Piper has vacated the Property and thereby purged his contempt. The question of who should ultimately pay the costs of removing the rubbish and remaining chattels from the Property may need to be determined at a later date. 13 In relation to his punishment for contempt, Mr Piper relies on an unsigned affidavit dated 12 July 2024 and filed on 15 June 2024, the contents of which he affirmed and adopted under oath at the hearing. The general effect of Mr Piper's evidence was that the Court should take into account the following matters in considering the appropriate punishment for his contempt. First, Mr Piper claims that, while he was originally represented by a lawyer, he has not had any legal assistance or guidance for over 12 months. Second, he claims that some of his actions were the product of naivety and his misunderstanding or misconstruction of the Court's orders. That was said to be in part a result of the fact that he has not had any legal representation in recent times. Third, he again relies on the fact that he was, at least initially, unable to comply with order 9 as he could not return the keys to an agent. Fourth, he says that he has now complied with the Court's orders. Fifth, and finally, he says that he never intended to be in contempt or to disrespect the Court. He noted, in that context, that he has always conducted himself in a courteous and respectful manner in Court. 14 I accept that Mr Piper was not legally represented at all times relevant to his contempt. It is, however, difficult to accept that that provides any real justification or mitigating circumstance in relation to his contempt. It was made quite plain to Mr Piper, particularly when the matter first returned to Court in relation to Ms Stoffels' enforcement application, that he risked being found to be in contempt if he did not vacate the Property pursuant to the Court's order. It is difficult to accept that he did not understand that clear caution or warning. Moreover, the evidence that is before the Court in relation to Mr Piper's dealings with Ms Stoffels' solicitor, in particular the email correspondence, indicates that Mr Piper's actions were more the product of defiance and disobedience than naivety. 15 Mr Piper's apparent continued reliance on his initial inability to return the keys to an agent also has little merit given the amendment that was made to order 9 on 13 May 2024. The effect of the amendment was clearly explained to Mr Piper on 13 May 2024. It follows that the terms of order 9 as originally made provides no justification for Mr Piper's conduct after 13 May 2024. 16 I find, in all the circumstances, that Mr Piper's failure to comply with the Court's order to vacate the Property was deliberate and contumacious, particularly following the amendment made to order 9 on 13 May 2024. From that date, at the very least, Mr Piper's failure to vacate the Property was entirely unjustified and constituted deliberate defiance of the Court's orders. Moreover, as noted earlier, I consider that Mr Piper made no real attempt to vacate the Property prior to that time and used his supposed inability to return the keys to an agent as a convenient and technical justification for his continued occupation of the Property. 17 To make matters worse, while Mr Piper has, strictly speaking, now complied with the order that he himself vacate the Property, as adverted to earlier, there could be little doubt that he has left the Property in a disgusting and squalid state. To make the Property fit for sale, it will undoubtedly be necessary for the remaining items of personal property and rubbish to be removed and disposed of. The costs of so doing may well have to be taken into account in the course of considering the distribution of the sale proceeds once the Property is sold. 18 I accept that Mr Piper has been courteous and respectful when he has appeared in Court. I will take that into account in determining the appropriate sentence, though given the other findings that I have made, it is deserving of limited weight. I also accept that Mr Piper now accepts that he was wrong to defy the Court's orders. While that acknowledgment has come at a very late stage, I will nevertheless proceed on the basis that Mr Piper is genuinely remorseful and contrite. 19 What, then, is the appropriate punishment for Mr Piper's contempt? 20 While I consider Mr Piper's actions to be contumacious and worthy of punishment, I do not consider that a sentence or punishment involving imprisonment is warranted or justified. That is particularly so given that he has now purged his contempt and has shown that he is contrite and remorseful. 21 In my view, however, Mr Piper's deliberate defiance and disregard of the Court's orders warrants at least a pecuniary punishment. The Court must uphold its integrity and will not countenance any deliberate disregard or non-compliance with its orders. General deterrence is an important consideration when it comes to punishing a contemnor who has deliberately disobeyed the Court's orders. Litigants should be left in no doubt that non-compliance with the Court's orders will likely result in the imposition of a penalty. 22 Mr Piper has not adduced any evidence which directly discloses his financial position. I would, however, infer from the evidence as a whole that he is a man of fairly limited means and is unlikely to be able to meet any large fine. Moreover, for reasons that I will come to, I also propose to order that Mr Piper pay Ms Stoffels' costs in respect of her enforcement action assessed on an indemnity basis. I will take that into account in fixing the appropriate fine, noting, however, that a costs order is compensatory, not punitive in nature. 23 In the circumstances, I propose to impose a fine of $5000 on Mr Piper. I will, however, wholly suspend the enforcement of that fine on the condition that Mr Piper does not engage in any conduct that materially impedes or obstructs the sale of the Property pursuant to the Court's orders made on 30 January 2024. If at any point Ms Stoffels alleges that Mr Piper has engaged in, or is engaging in, any such conduct, she may have the matter re-listed. If the allegation is upheld, the suspension of the fine may be lifted, in which case Mr Piper will become liable to pay the fine. If, however, the Property is sold in the absence of any such conduct, Mr Piper will not be liable to pay that fine. 24 As for costs, in my view, there could be no doubt that the circumstances are such that Mr Piper should be required to pay Ms Stoffels' costs in respect of the enforcement of the Court's orders, including her costs of seeking an order that he be punished for contempt. Moreover, it would be appropriate in all the circumstances to order Mr Piper to pay Ms Stoffel's costs assessed on an indemnity basis. Indemnity costs are commonly ordered against a party who has been found to be in contempt as a result of disobeying orders: Kazal v Thunder Studios Inc (California) and Another [2017] FCAFC 111; (2017) 256 FCR 90 at [192] and the cases there cited. 25 The Court has the power to fix an amount of costs rather than leave the cost to be assessed: rule 1720(3)(c) of the Court Procedures Rules 2006 (ACT) which apply in this Court; Polleycutt v Taylor [2020] ACTSC 158 at [8]. The Court's purpose in fixing costs on a lump sum basis is generally to avoid the expense and delay which is generally involved in the assessment process. It may also be appropriate for the Court to fix costs where the party liable to pay costs may not be able to pay the costs, or where that person has conducted themselves in the proceedings in such a way as to cause trouble and expense to the other party: Polleycutt at [8]. 26 This is a case where it is appropriate for the Court to fix the costs that Mr Piper should pay Ms Stoffels in respect of her enforcement action. Ms Stoffels' solicitor has filed an affidavit which annexes a report prepared by a costs assessor which calculates the costs reasonably incurred by Ms Stoffels in enforcing the Court's orders. The costs assessor's assessment totalled $19,977.96, including the cost of the assessment itself. While Mr Piper did not challenge or dispute this assessment, I do not propose to order him to pay the full amount arrived at by the assessor. Some of the assessed costs appear to relate to the period before Mr Piper was required to vacate the Property. I also do not consider that it is appropriate to require Mr Piper to pay the assessed component of $2991 for "care, complexity, difficulty, novelty, importance to client, specialised knowledge, responsibility, time spent by solicitor, including research of law." 27 Having regard to the cost assessor's report, I consider that a fixed costs order in the sum of $15,000 is appropriate in all circumstances. While it appears that Mr Piper may not have the capacity to pay that amount in the immediate future, it is an amount that could be deducted from the sale proceeds which would otherwise be payable to Mr Piper once the Property is sold if that is considered to be appropriate at that stage. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.