Talevski v County Court of Victoria [2001] VSC 171

Supreme Court of Victoria|2001-05-31|Before: Gillard J

JUDICIAL REVIEW - mandamus - County Court contempt proceeding adjourned sine die, pending determination of County Court proceeding - Judge deferring the hearing - not refusing to exercise jurisdiction - delay not amounting to refusal.

The return of a summons in a proceeding instituted by originating motion in which the plaintiff seeks judicial review of a decision of a Judge of the County Court adjourning a summons sine die, and an order in the nature of mandamus, compelling the Judge to determine the summons.

The plaintiff, Mrs Sevda Talevski ("the plaintiff"), entered into a franchise agreement with Smart Saver Pty Ltd ("the company"), pursuant to which she conducted a business of soliciting custom from retailers wishing to promote their goods and services by means of a discount coupon. The plaintiff published a newspaper advertising retailers' businesses which contained discount coupons in respect of the businesses.

The first defendant, The County Court of Victoria, is the court in which the plaintiff brought a proceeding alleging a breach of an interlocutory injunction, and seeking an order that the persons responsible for breaching the injunction be punished for contempt of court. The proceeding came on before His Honour Judge Ostrowski.

The Victorian Government Solicitor filed an appearance on behalf of the Court, and informed the Prothonotary that the Court did not intend to take an active role in the proceeding but would abide the decision of the Court, in accordance with the principles stated by the High Court in R v Australian Broadcasting Tribunal, ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.

The second and third defendants, Patrick Kok Leong Neoh and Dragan Popovic ("the defendants"), are the parties against whom the plaintiff brought her proceeding for contempt.

The said defendants were, at all material times, directors of the company.

On 30 September 1996, the plaintiff commenced a proceeding against the defendants and a Mr Loney in the County Court of Victoria, in proceeding No. 9608751 of 1996, seeking, inter alia, damages from the said defendants for derogating from the obligations in the franchise agreement.

On 3 October 1996, the plaintiff sought an interlocutory injunction restraining the defendants from carrying on any business or undertaking of a like nature to the business which she was carrying on, pursuant to the franchise agreement. The summons was served on the defendants to the proceeding, and the present defendants consented to an interlocutory injunction on 8 October 1996. His Honour Judge Kellam ordered that the defendants, their servants and agents "be restrained until the trial of this proceeding or until further order of this court from entering into or engaging in any business similar to or comparable with the business or publishing and distributing discount coupon newspapers in an area contained within the municipal boundaries as at 14 October 1994 etc" (the areas were described).

In late 2000, the plaintiff became aware that the defendants were acting contrary to the terms of the order. On 18 December 2000, a summons was issued against the defendants seeking an order that they be punished for contempt of court. The summons came on for hearing before His Honour Judge Ostrowski on 29 January 2001, and was heard over the following two days. His Honour reserved his decision.

The evidence before the trial judge revealed that, the present defendants admitted that 46 retail businesses in Geelong had been solicited for an Internet business operated by the company. Evidently, the business being conducted by the said defendants was a web page on the Internet, which advertised the businesses of retailers and offered a discount coupon, which could be downloaded.

On 7 February 2001, the learned Judge published his reasons. The Judge considered the submissions made on behalf of the defendants, that they were not guilty of contempt, and rejected them.

"The evidence, especially the evidence of each respondent (present defendants), has left me in no doubt at all as to what they have been doing apparently since 1998: they approached traders Victoria-wide and including specifically in the area around Geelong proscribed by the injunction and offered them advertising space by way of a web page on the Internet, thus ensuring delivery of the advertisement to the operator of every computer in the world who wants to hit the page."

"The evidence has persuaded me to the necessary degree that what the respondents have been doing since 1998 is precisely the same business as that (sic) the franchise for which they sold to the applicant."

His Honour noted that there were some points of distinction.

"Whether these summaries are right or not, I am left with no doubt that since 1998 each of the respondents has been engaging in a business similar to or comparable with the business of publishing and distributing discount coupon newspapers in the area proscribed by the order under the name 'Smart Saver'. This activity was and in breach of the injunctive order."

Having reached that conclusion, His Honour then considered counsel's remaining submissions. In the light of the issues raised in the present proceeding, it is necessary to refer to what is described as submission number 3. His Honour stated -

"The submission numbered 3 is that I have a discretion as to the making of the finding of contempt and in its exercise I should refuse to make such a finding. I am not persuaded that I have the discretion contended for. The type of discussion set out in the joint judgment of the five High Court judges in R v Commonwealth Court of Conciliation and Arbitration ex parte Ozone Theatres (Australia) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 398-401 rather inclines me to the view that I hold. The applicant by filing her summons and prosecuting it has invoked the jurisdiction of this court and my duty is to exercise it. I recognise that if and when a finding is made of disobedience of a court order, there resides in the court a discretion as to what should be the consequences, but that is a separate step which follows the finding of disobedience. I do not believe that I have any discretion as to the making of a finding whether the order was disobeyed by the respondents."

I have some difficulty understanding His Honour's reasoning in that passage. What counsel appears to have submitted is, that once a court has made a finding that there has been a breach of an order, it has a discretion as to whether or not the court should make a finding of contempt. This is well established by the authorities.

The power of the court was discussed in Re Perkins; Mesto v Galpin [1998] 4 VR 505. Brooking JA, at p.512, said -

"It is well accepted that although the court is satisfied that a contempt has been committed it may decline to make any order, in which case it will often describe itself as declining to exercise the jurisdiction to deal with contempts summarily. It can probably be said that most commonly the question whether this should be done has arisen in relation to the publication of statements said to have the tendency to prejudice the fair trial of proceedings. In this connection the expression 'technical contempts' has been coined."

His Honour referred to the authorities in support of his statement of principle.

His Honour then went on to quote what Fullagar J said in Davis v Baillie [1946] VicLawRp 76; (1946) VLR 486. Fullagar J was concerned with the publication of information which had the tendency to prejudice a fair trial, and discussed the question of what the court could do. He noted that in some cases, the tendency to prejudice was only slight. Fullagar J then said, at p.493 -

"The truth is, I think, that the jurisdiction is essentially discretionary, and that, because it is discretionary, there is often felt to be no real necessity for considering as separate and distinct questions the question of guilt and the question of punishment. The proceeding is criminal in character: ...; but the logical distinction between 'conviction' and 'sentence' has not the significance which it has in an ordinary criminal proceeding. I was much impressed by Mr Nimmo's proposition that I had to deal with two questions (1) Was there a contempt? and (2) Was there a punishable contempt? Of course, if there is a clear contempt, the Court must consider whether it should punish, and, if it should punish, how it should punish. But often, I think, the Court does not ask itself two separate questions, but simply and quite properly, asks itself whether it ought to exercise its jurisdiction. And, as in all cases of discretion, the matters which should be taken into consideration cannot be exhaustively enumerated and defined à priori."

Brooking JA stated that the comments of Fullagar J were applicable to all kinds of contempt.

But what His Honour Judge Ostrowski did, was to consider the submission as if it raised the issue as to whether he had a discretion with respect to the making of a finding whether the order was disobeyed.

His Honour referred to the High Court decision in The King v Commonwealth Court of Conciliation etc. His Honour's reference is to statements by the High Court as to the duty of a court to hear and determine a proceeding. It was not concerned with the issue as to what can be done on an application for contempt. It is correct, as His Honour found, that he had no discretion with respect to making the finding. But it does appear to me, that what counsel was putting was that he had a discretion whether he should proceed to make a finding of contempt, which is different to making a finding whether the order had been disobeyed by the present defendants.

"The result is that I find that each of the respondents has breached the order of His Honour Judge Kellam made 8 October 1996. I will take further submissions and consider taking evidence as to what should be the orders consequential upon this finding."

He did not make a finding that the defendants were guilty of contempt by breaching the injunction.

Prior to the summons seeking a finding of contempt, the plaintiff issued a summons seeking discovery from the company, ie. non-party discovery. The summons was returnable on 18 January 2001, but was not dealt with. After the reasons were published, the plaintiff issued another summons on 12 February 2001, in which she sought orders "that in all the circumstances and because of the unlikelihood now of a trial and in view of the defendants' contempt of this court, those costs in the proceedings thus far that have been reserved for consideration by the trial judge be dealt with by Judge Ostrowski as part of his consideration of the appropriate punishment of the defendants for their contempt."

When His Honour handed down his reasons, he informed counsel that he had said nothing "about the matters which appear to be relevant with respect to the consequences of that finding. In other words, I say nothing about things, for instance, that were mentioned in the evidence of legal advice and some advice that he had obtained. I mention nothing of that, just as an example, something which I will consider, as presently advised, to be relevant to the eventual consequence." His Honour then stated he would be prepared to listen to submissions.

Mr Esser of Counsel, who appeared for the plaintiff, raised the question of the defendants purging their contempt, and pointed out that there would appear to have been at least 46 different counts of contempt. Mr Esser also raised the question of what should be done in relation to the third party discovery summons.

His Honour then stated that he had made the narrow finding, without pronouncing orders, because it appeared to him to be basically a commercial dispute. Mr Esser pointed out that he was prepared to discuss the matters with counsel for the defendants, but if there was no money paid for the contempt, then he would be seeking to proceed with the application for third party discovery. Mr Esser also raised the question of calling evidence that Mr Neoh was a person of bad character.

His Honour repeated that he considered it still to be a commercial dispute and hence, he would not make any orders because it may not facilitate the outcome. He adjourned the proceeding for nine days.

On the resumption, the Judge was informed that the matter had not been compromised, and Mr Esser, on behalf of the plaintiff, submitted that the Judge should now make a formal pronouncement of a finding of contempt. Mr Esser then raised the question of the contemnors purging their contempt and, in that context, stated that it would be proper for his client to launch an inquiry into the extent to which the behaviour has resulted in a loss to her, with a view to an order being made for accounts of the profits. It was noted that there were further discussions between the parties and hence, an application was made to adjourn, by consent, the matter to the following week.

On 23 February, the court was informed that the matter had not settled. Mr Esser, after referring to the non-party discovery, submitted that His Honour should make a finding or not make a finding, as the case may be, in relation to the contempt. Mr Esser, in response to a question from the Judge, stated that the Judge should proceed with the third party discovery, but noted that it would be premature until the Judge had made a formal finding of contempt.

After further discussion, counsel for the present defendants informed His Honour that, in effect, what was before him was similar to a plea in a criminal proceeding.

"I know, and the way I see things at present, it is that I will not proceed to deal with that until the main proceeding is concluded."

The plaintiff relies upon that statement as a clear refusal by the judge to proceed further with the contempt proceeding.

Counsel for the defendants submitted to His Honour that he should deal with the contempt matter before he dealt with the question of costs, and that His Honour should decided what punishment to impose. His Honour posed the question whether he should pronounce a conviction. Counsel for the defendants submitted that there was no need or requirement to actually impose a conviction.

His Honour then concluded that he thought it was desirable, as he had made plain already, "That I have before me the facts which (indistinct) (sic) a conclusion of the trial of the proceeding will provide, before I proceed to deal further with the contempt proceedings."

He went on to express amazement that the parties did not wish to have a trial, and noted that they would have to have a trial, unless the proceeding was brought to an end by some other means. He concluded as follows -

"It is, in my view, desirable that the documents sought in the summons for third party discovery be available to the plaintiff, and I propose to order that. The contempt proceedings, I will adjourn."

With respect to the contempt proceeding, he ordered -

"(1) The further hearing of this summons is adjourned sine die, with leave to either party to bring it on for further hearing on four day's notice to each other party.

On the summons for non-party discovery, he made orders requiring the non-party to swear an affidavit of documents and provide inspection before 23 March 2001.

On 27 February 2001, the plaintiff's solicitors wrote a letter to the Associate to His Honour Judge Ostrowski. The solicitors stated that they were applying, pursuant to the liberty to apply, to bring the matter on before the Judge. The letter stated that the client was going to swear a fresh affidavit stating, in effect, that she was aggrieved by the fact that a court had not enforced Judge Kellam's orders, that the defendants were continuing to display their website, that she had spent a great deal of money on legal fees and despite findings being made in her favour, she had not obtained an order for costs. It was also noted that she did not wish, at trial, to press the case for damages, and the only question left for resolution was the costs reserved. The letter stated that His Honour Judge Ostrowski would be asked to make orders convicting the defendants of contempt and, inter alia, an order for costs.

On 1 March 2001, the Judge's Associate responded as follows -

"His Honour has directed me to reply to your letter of 27th February 2001. His Honour points out that he made two orders on 23rd February 2001. The combined effect of the orders should be looked at. If your client is aggrieved by any part of the orders, she should exercise such rights as she may have. His Honour will not entertain any further hearing until the main proceeding is finalised."

The plaintiff contends that the learned Judge has refused to exercise his jurisdiction, in that he has failed to exercise his discretion as to whether or not he should make a finding of contempt, and that he has, by adjourning the proceeding sine die, refused to exercise the jurisdiction. The defendants, for their part, submit that the learned Judge has not refused to exercise his jurisdiction, but has merely deferred the exercise of the jurisdiction until the main proceeding is finalised. It is submitted that, that course was open to the learned Judge and that he has not, in the circumstances, declined to exercise the jurisdiction.

The plaintiff claims an order in the nature of mandamus, compelling the learned Judge to take the next step in the proceeding, namely, exercising his discretion as to whether or not he should make a finding of contempt.

The plaintiff invokes the common law jurisdiction of this court, supervising the exercise of jurisdiction or power of inferior courts and public authorities. The jurisdiction is limited to ensuring that the courts and public authorities exercise their jurisdictions and powers in accordance with the law, and that they carry out their duties. In the old days, the nature of the relief was the issue of writs of certiorari, prohibition and mandamus. Nowadays, by reason of the provisions of Order 56 of the Rules of Court, the orders are in the nature of the old writs. Order 56 is concerned with procedure, and has not in any other way affected the jurisdiction of this court.

The remedy of mandamus, which is sought in the present proceeding, is the means by which a public authority is required to perform its public duty. It is a discretionary remedy, and may be withheld in the interests of justice.

It can be granted against an inferior court, and this includes a judge of the County Court. See R v Judge Dutton Briant, ex parte Abbey National Building Society (1957) 2 QB 497.

If a proceeding is instituted in an inferior court, it has a public duty to decide the case. If the court refuses to exercise its jurisdiction, an order in the nature of mandamus will be granted to compel the court to do so.

The nature of the obligation and the object of an order in the nature of mandamus were considered by the High Court in The King v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 398 where the court said -

"Apart, however, from this imperative requirement, what s.25 does is to create a jurisdiction in the court, and where such a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter. [Authorities referred to.] Where a court or a public officer wrongfully refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus. The writ may issue whenever there is a specific legal right to require the performance of a statutory duty, and no specific legal remedy is provided for enforcing that right: R v The Commissioners of Inland Revenue; In Re Nathan. The writ goes only in order to compel the performance of a public duty and, in the case of a court or other body which is under a duty to hear and determine a matter, the tenor of the writ will require the hearing and determination of the matter, and not the decision of the matter in any particular manner."

The court at p.400 observes that the writ is not a writ of right, nor does it issue as a matter of course. There are in fact well recognised grounds for withholding the remedy, in the discretion of the court. The court listed examples of grounds where the remedy had been withheld in the exercise of a discretion. They covered examples such as if there was a more convenient and satisfactory remedy available, if no useful result would ensue, if a party had been guilty of delay or if there had been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arose or towards the court.

However, the court did underline the importance of the discretion and that it was judicial, and stated at p.400 -

"The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."

What the court was stating there was the well-established obligation of any court, that where a moving party establishes a claim for relief, then in the normal circumstances, the party should have that relief, unless there are circumstances which make the grant unjust or inappropriate.

It is important to emphasise that the common law jurisdiction of this court, supervising the exercise or non-exercise of jurisdiction by an inferior court or public body, is not in the nature of an appeal. The jurisdiction is limited, and in the case where the order sought is in the nature of mandamus, the jurisdiction is only exercisable if it is established that the court has refused to exercise jurisdiction. As a general proposition, a court would not be refusing jurisdiction if it refused to accept a submission or reached a wrong decision. In those circumstances, it acted within jurisdiction. Mandatory-type orders are made where there is a clear case of refusal to exercise the jurisdiction.

The principle was stated by A.L. Smith LJ in The Queen v Justices of London (1895) 1 QB 616 in these terms at p.637 -

"When an inferior court hears and determines a matter within its jurisdiction, however erroneously it may decide, either the law or the facts therein, no mandamus will go, the reason being that the Court of Queen's Bench has no prerogative to decide by way of appeal matters decided by an inferior court within its jurisdiction. But when an inferior court has declined jurisdiction the Court of Queen's Bench has a prerogative by way of mandamus to command the inferior court to proceed to do its duty according to law, and when an inferior court has usurped jurisdiction, that is, has exceeded its jurisdiction, certiorari or prohibition is the appropriate remedy."

It is necessary to prove that the body has refused jurisdiction. This has caused courts in the past to state a rule to the effect that, it must be proven that a demand was made and there was a refusal to act. However, that question is a question of fact. The High Court said in Re Media, Entertainment and Arts Alliance; ex parte Hoyts Corporation Pty Ltd [1993] HCA 40; (1993) 178 CLR 379, that there is no rule of law to that effect "but a convenient method of testing whether there has been a refusal, actual or constructive, to exercise jurisdiction." The refusal to exercise the jurisdiction can be proved as a matter of inference, for example, by procrastination or prevarication. See R v Tower Hamlets London Borough Council (1975) QB 431.

A person who validly institutes and prosecutes an application in a court has the right to have the application considered and determined, in accordance with the law, as promptly as circumstances permit. The court has a legal duty to hear and determine the proceeding.

It is clear - and there was no debate between the parties - that a refusal to act must be proven with respect to the exercise of the jurisdiction. This Court is not concerned with error resulting from the making of an incorrect decision, in the course of exercising jurisdiction.

A contempt proceeding is usually conducted as a criminal proceeding. This means that the evidence is called in relation to the contempt, the opportunity is afforded the alleged contemnors to meet the allegations, and after submissions, the judge makes a finding whether a contempt has been committed. If a finding is made to that effect, an opportunity is given to the contemnor to make a plea on the question of penalty.

In some contempts, the only finding that can be made as to liability is a finding that a contempt has been committed. By way of example, where it is alleged that the conduct has a tendency to prejudice the administration of justice. If that is the allegation, then usually in the course of the first part of the proceeding, evidence is led and submissions are made with respect to the question whether there should be a finding of contempt. In other cases, and the present is an example, the first finding is whether there has been a breach of a court order, and the next question is, did it amount to a contempt? It appears that counsel at the hearing proceeded on the assumption that His Honour would consider the question whether or not he should make a finding of contempt. The judge did not go that far. He stopped short of making that finding. He made a finding that there had been a breach of the order.

The learned judge adjourned the further hearing sine die. The plaintiff submits that he should have gone the next step, and exercised his discretion as to whether or not he should make a finding of contempt.

In order to complete the proceeding, the learned judge would be obliged to consider the question whether or not he should make a finding of contempt, whether he should impose any penalty and the question of costs. The general rule in contempt cases, where a finding is made, is that the contemnor pays the aggrieved party's costs, on a solicitor-client basis.

The learned Judge made a number of observations which lead to the conclusion that he adjourned the proceeding sine die, for two reasons. The first was that the proceeding was part and parcel of the main proceeding between the parties. That discussions were taking place concerning the matters in dispute between the parties, and His Honour thought that any finding and punishment for contempt may jeopardise the settlement discussions. The second reason appears to be that the Judge thought that, in determining the questions of conviction and penalty, he would be better assisted by the outcome of the main proceeding.

With respect to the second apparent reason, it would appear that His Honour had in mind the observations made by Barwick CJ in Australian Consolidated Press Limited v Morgan [1965] HCA 21; (1964) 112 CLR 483 at 489. His Honour did not expressly refer to what the Chief Justice said, but made observations, which suggested that what the Chief Justice said should be applied.

In that case, the Supreme Court of New South Wales held that the defendant had breached an interlocutory undertaking given to the court, and should be ordered to pay a fine. The contempt was a contempt in procedure which was wilful, but not contumacious. Two of three High Court Judges held that the order should be set aside because of the ambiguous language of the undertaking. Barwick CJ held, that if there was any jurisdiction to impose a fine, the imposition was in the circumstances premature. At p.489, Barwick CJ noted that the undertaking was in terms identical with the contract, the breach of which was the subject matter of the proceeding. He then stated -

"The court was therefore presented in the proceedings for contempt with at least the major part of the issues which had arisen for trial in the suit. I would not wish to say that it is never appropriate to hear and to determine before the hearing of a suit a motion for an order for committal or sequestration for contempt by breach of an order or of an undertaking where it is necessary in order to determine the matter to decide one or more of the major issues arising in the suit. Circumstances may arise in which this must be done if the plaintiff's rights, or the public interest in the maintenance of the court's own prestige, are to be safeguarded. But, in my opinion those circumstances must be somewhat special. In the ordinary course, the court ought not, in my opinion, to attempt to resolve in the proceeding for contempt the question or questions which is or are to be litigated before it, no doubt at greater length and with greater attention to detail, at the hearing of the suit. The proper course, except in special circumstances, in my opinion, in such a case is for the court to adjourn the contempt proceedings which cannot be determined without resolving a major question in the suit until the hearing of the suit itself." (Emphasis added).

It is noted that the purpose of contempt proceedings include the concern of the public in the maintenance of the court's authority.

In that case, the very issue which had to be decided in the proceeding was the very issue that was at the heart of the contempt proceeding.

That is not the case here. The present case is a clear example of a wilful breach of an injunction. The issues in the main proceeding are separate and discrete from the issues in the contempt proceeding.

If the learned Judge adjourned the further hearing of the contempt proceeding on the ground that the issues in the proceeding were similar to the issues in the contempt proceeding, then, in my opinion, he was wrong.

The other ground which apparently influenced the Judge was the question of the settlement discussions. In my respectful opinion, His Honour was wrong in taking these matters into account when both parties pressed him to complete the contempt proceeding. Admittedly, there had been discussions over a number of weeks, but those discussions failed to reach settlement, and then both parties expressed a wish to the Judge that he proceed with the contempt proceeding. In my opinion, in those circumstances, it was inappropriate for the Judge to have adjourned the matter sine die. As I have already stated, one of the purposes of contempt proceedings is to uphold the authority of the law in circumstances where there has been a wilful breach of an injunction granted by the court. I refer to what Barwick CJ said in the Australian Consolidated Press case.

In Witham v Holloway (1995) 183 CLR 525 at 532, Brennan, Deane, Toohey and Gaudron JJ said p.532-3 -

"Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests." (Emphasis added).

"All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties." (Emphasis added).

Their Honours also pointed out that the disciplinary jurisdiction may be exercised even when the parties have settled their differences.

The fact that, arguably, the learned judge made a number of errors in exercising his discretion to adjourn the further hearing of the proceeding, is not to the point. The question is, has the judge in fact refused to hear the matter?

If I had been hearing the application, I would have proceeded with it, and subject to what the defendants submitted, most likely have made a finding of contempt and imposed a penalty, including ordering the contemnors to pay the plaintiff's costs on a solicitor-client basis. In my opinion, it is a serious contempt to wilfully breach an injunction order made by a court.

But what I would have done in the same circumstances is not to the point. The question still comes back to whether the judge has refused to hear the matter.

Mr Maxwell QC, who appeared with Mr Esser for the plaintiff, submitted that the learned Judge had refused to exercise the jurisdiction, in that he failed to properly consider the question of whether or not in the light of his findings, he should have made a finding of contempt. The plaintiff seeks an order requiring the Judge to take that step. The plaintiff is not seeking an order that he exercise that discretion in a particular way.

The County Court does have power to determine all applications not otherwise excluded from its jurisdiction. See County Court Act s.37(1)(a). The Court has the same powers and authority, with respect to contempt, as the Supreme Court. See s.54. In accordance with the normal rule, once a court has before it a properly instituted application, then the court does have a duty to hear and determine it. This is a general rule which is well established, and I refer to the High Court decision of Ozone Theatres, supra. The trial Judge clearly recognised that the contempt jurisdiction had been validly invoked.

It is submitted that by adjourning the plaintiff's application sine die, the court was refusing to exercise its jurisdiction. The other side of the coin is that the Judge merely deferred the exercise of the jurisdiction.

In my opinion, the learned judge has not refused to exercise his jurisdiction. He clearly contemplated that he will hereafter finally dispose of the matter. All that he has done is defer the final consideration to a future date, which would be after the main proceeding has been finalised.

In certain circumstances, an adjournment sine die may be a refusal to hear a matter, because the practical effect would be to defer indefinitely the final determination of the proceeding.

There is no evidence before this court as to when the main proceeding will be finalised. The carriage of the proceeding is in the hands of the plaintiff. She obtained the benefit of an interlocutory injunction back in October 1996, and the proceeding has still not been heard. A decision has recently been made that she will not seek damages and accordingly, her remedy would be in the form of a permanent injunction. The defendants consented to the interlocutory injunction. One may observe that in those circumstances, it would not be difficult for the plaintiff to prepare her case for a permanent injunction. I agree with the learned judge that in the end, the main proceeding has to be disposed of, one way or the other. His Honour was in a better position than this court to make some assessment of what was involved in the main proceeding, and when it could be brought on. The plaintiff can, by bringing on the main proceeding for trial, hasten the determination of the present proceeding. In those circumstances, it is impossible for this court to say that adjourning the proceeding sine die, until the outcome of the main proceeding, would result in such a delay that the court could infer that the learned judge had declined to exercise his jurisdiction. I am not satisfied that he has refused to exercise his jurisdiction. In my opinion, he has deferred it. The remedy is very much in the hands of the plaintiff.

It follows that the proceeding in this court should be dismissed with costs.

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Judgment (95 paragraphs)

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Cases Cited (5)