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O'Connor v Hough

 

[2016] QSC 4

Reported at [2016] 2 Qd R 543
 

SUPREME COURT OF QUEENSLAND

 

CITATION:

O’Connor & Ors v Hough & Ors [2016] QSC 4

PARTIES:

TERRENCE JOHN O’CONNOR

(First applicant)

and

JUDITH ANN O’DONOGHUE

(Second applicant)

and

JOHN NEIVE O’DONOGHUE

(Third applicant)

v

BERNARD WILLIAM HOUGH

(First respondent)

and

KENNETH MICHAEL HOUGH

(Second respondent)

and

DENBROOK INVESTMENTS PTY LTD ACN 010 236 978

(Third respondent)

and

GLENRICK PTY LTD ACN 080 390 745

(Fourth respondent)

and

PETER JOHN RIMMINGTON

(Fifth respondent)

FILE NO/S:

No 5819 of 2014

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 January 2016

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2015; Supplementary written submissions from the second respondent dated 17 November 2015; Supplementary written submissions from the second applicant dated 20 November 2015.

JUDGE:

Burns J

ORDER:

The orders of the court are:

  1. The amended application filed on behalf of the second respondent on 17 November 2015 is dismissed;
  2. The second respondent is ordered to pay the second applicant’s costs of and incidental to the dismissed application to be calculated on the standard basis.

CATCHWORDS:

CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CONTEMPT – STRIKING OUT – INHERENT JURISDICTION OF THE COURT – where a party applied to strike out an application for contempt brought against him –– whether the application for contempt suffered from an irremediable procedural defect – whether the allegations of contempt were so untenable that they could not possibly be sustained at the hearing

CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CONTEMPT – STRIKING OUT – INHERENT JURISDICTION OF THE COURT – where a party applied to strike out an application for contempt brought against him – where the strike out application claimed the application for contempt was bad for duplicity – whether the rule against duplicity applies to contempt applications

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CONTEMPT – PARTICULARS – where a party applied to strike out an application for contempt brought against him for alleged breach of undertakings given to the court – where the strike out application was brought on various grounds relating to alleged deficiencies in the particulars supplied for the application for contempt – whether the particulars were deficient – whether it is permissible for particulars to incorporate documents by reference

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – OTHER MATTERS – where an undertaking given by a party to the court was recorded in an order – where that order did not contain a penal notice pursuant to r 665(3) UCPR – whether r 665(3) applies to undertakings to the court recorded in an order

Uniform Civil Procedure Rules 1999 (Qld) rr 5, 145, 149(1)(c), 150(f), 150(w), 293(2), 665(3), 900, 926(1)

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Alexander v Crawford [2003] NSWSC 426

ASIC v Jorgensen & Ors [2008] QSC 91

Bakir v Doueihi [2002] QSC 19

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Burton v Spencer [2015] QSC 187

Burwood Council v Steve Nolan Constructions Pty Ltd [2014] NSWLEC 54

Camm v ASI Development Company Pty Ltd [2007] QCA 317

Carew Reid v Carew Corporation Pty Ltd (Unreported, Full Court of the Supreme Court of Western Australia, Malcolm CJ, Franklin and Nicholson JJ, 23 April 1993)

Chiltern District Council v Keane [1985] 2 All ER 118; [1985] 1 WLR 619

Colefax v Colefax [1933] St R Qd 222

Commissioner for Fair Trading v TLC Consulting Services Pty Ltd & Ors [2011] QSC 233

Concrete Constructions Pty Ltd & Anor v The Plumbers & Gasfitters Employees Union of Australia & Anor (No 2) [1987] FCA 117; (1987) 15 FCR 64

Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 320 ALR 448

Costello v Courtney [2000] QSC 67; [2001] 1 Qd R 481

Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573

Deckers Outdoor Corporation Inc v Farley (No 6) [2010] FCA 391

Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

GND Developments Pty Ltd (in liq), Moloney & Geroff v D A Luttrell Nominees Pty Ltd & Ors [1998] QSC 159

Hafele Australia Pty Ltd & Anor v Maggbury Pty Ltd & Anor [2000] QCA 397

Harmsworth v Harmsworth [1987] 3 All ER 816; 1 WLR 1676

Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15

Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2005) 221 ALR 823

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467

Lazar v Taito (Australia) Pty Ltd & Anor [1985] FCA 35; (1985) 67 ALR 652

Markisic v The Commonwealth [2006] NSWCA 150

Matthews v ASIC [2009] NSWCA 155

Montgomery v Stewart [1967] HCA 11; (1967) 116 CLR 220

Pipeworks Australia v Betcop Pty Ltd atf The Watts Family Trust & Ors [2015] QSC 284

Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386

Re Intex Consultants Pty Ltd [1986] 2 Qd R 99

Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77

Windsurfing International Inc v. Sailboards Australia Pty Ltd (1986) 19 FCR 110

Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525

COUNSEL:

C Wilson for the Second Applicant

A M Christie for the Second Respondent

SOLICITORS:

Kenmore Mediation & Law Centre for the Second Applicant

Aitken Whyte Lawyers for the Second Respondent

  1. The second applicant, Mrs O’Donoghue, maintains that the second respondent, Mr Hough, breached certain undertakings that he gave to the court in 2014. She has made application for orders that he be dealt with for contempt pursuant to the provisions of Chapter 20 of the Uniform Civil Procedure Rules 1999 (Qld). Mr Hough has applied to strike out that application on various grounds. For the reasons that follow, Mr Hough’s application must be dismissed.

Background

  1. By an originating application filed on 23 June 2014, the applicants sought relief under the Trusts Act 1973 (Qld) with respect to the administration of three particular trusts. On the first return of that application before Martin J on 26 June 2014, it was adjourned by consent to a date to be fixed. The order adjourning the application was supported by a number of undertakings by Mrs O’Donoghue and Mr Hough. These were considered necessary to facilitate, amongst other things, the preparation of financial accounts for two of the trusts[1] as well as an associated corporation.[2] To that end, a firm of bookkeepers[3] had been engaged and it was proposed that a firm of chartered accountants[4] also be retained to assist with the task.
  2. The undertakings relevantly required Mrs O’Donoghue and Mr Hough:
  • “[T]o co-operate, act reasonably and genuinely in, and do all things necessary on their part to assist [JBS] and the said Merrotts to complete their respective engagements in a timely manner”; and
  • “[T]o answer truthfully queries by [JBS] or Merrotts relating to the third respondent, the fourth respondent, the Davidson House Trust, the Glenrock Trust, Tenancy Management Pty Ltd or the said business”.[5]
  1. The originating application came back on for hearing before Martin J on 14 October 2014, at which time his Honour made various orders by consent for the removal of the trustees for two of the trusts which were the subject of the undertakings given on 26 June 2014 and the appointment of a replacement trustee in each case.[6] Again, those orders were supported by undertakings on the part of Mrs O’Donoghue and Mr Hough.
  2. The undertakings given to the court by Mrs O’Donoghue and Mr Hough on this second occasion relevantly required them:
  • “[T]o continue to co-operate, act reasonably and genuinely in and do all things necessary on their part to assist [JBS] and [Merrotts] to complete their respective engagements in a timely manner”; and
  • “[T]o continue to answer truthfully queries by JBS and Merrotts relating to the third respondent, the fourth respondent, the Davidson House Trust, the Glenrock Trust, Tenancy Management Pty Ltd and the backpackers business formerly conducted by that company under the style of ‘Yellow Submarine’”.
  1. Although there are some variances of expression between the undertakings given on 26 June 2014 and those given on 14 October 2014, it will be seen that they are in substance identical. They operate with respect to the same subjects, and convey the same obligations. The only difference is of a temporal kind; the second of the two orders serves to continue in operation the undertakings given in the first.

The contempt application

  1. By a further amended application filed on 7 October 2015 – which, for ease of reference, I will refer to as the contempt application – Mrs O’Donoghue alleges that Mr Hough breached the undertakings set out in [3] and [5] above. In particular, it is charged that Mr Hough did so by:

“(a)failing to co-operate, act reasonably and genuinely in, and do all things necessary on his part to assist [JBS] to complete their engagement by failing or refusing to answer all queries by JBS in a timely manner;

(b)failing to answer truthfully queries raised by JBS.”

  1. The two charges therefore solely relate to what Mr Hough undertook to do in connection with JBS. They otherwise follow the language of the undertakings. Extensive particulars for each are supplied in the body of the contempt application. These have since been supplemented to a considerable degree by additional particulars, as well as schedules which detail the affidavit evidence on which Mrs O’Donoghue proposes to rely in proof of the particulars of each of the charges. Further, the documentary evidence in support of each charge has been assembled with reference to each particular and provided to the legal representatives for Mr Hough.

The strike out application

  1. The strike out application takes the form of an amended application filed on behalf of Mr Hough on 17 November 2015. Under it, several grounds are advanced to attack the contempt application. In addition, the written submissions delivered on behalf of Mr Hough on the same day purport to add to those grounds. Both need to be read, in any event, with the written submissions delivered on behalf of Mrs O’Donoghue on 20 November 2015 because a number of the allegations that had been previously made on her behalf are there abandoned. It should also be recorded that a number of the complaints made on behalf of Mr Hough regarding some of the particulars as well as the provision of material have been addressed since those complaints were first made.
  2. Taken together, what remains in issue are Mr Hough’s contentions that the “charges and particulars” contained in the contempt application should be struck out because:
    1. The relevant undertakings are unenforceable for the reason that they are embodied in orders that are not endorsed in accordance with r 665(3) UCPR;
    2. They are bad for duplicity;
    3. They refer to “multiple extrinsic documents”;
    4. They “lack sufficient particularity for [Mr Hough] to have a reasonably clear and intelligible statement of the offence alleged”;
    5. They fail to comply with rr 149(1)(c), 150(f) and 150(w) UCPR; and
    6. They “fail to demonstrate a cause of action”.[7]
  3. These contentions will be considered in turn but, before doing so, it is necessary to briefly state the principles to be applied in the determination of an application such as this.

Applicable Principles

  1. The jurisdiction of the court to punish for contempt is both inherent and provided for under Chapter 20 UCPR.[8] Because the liberty of the subject is potentially at stake, it is well established that strict compliance with the rules of procedure is required in a proceeding for contempt.[9] It is equally well established, and for the same reason, that nothing short of proof to the criminal standard will suffice in order to make out such a case.[10]
  2. But that does not mean that an allegation (or charge) of contempt must be drawn with all of the precision of a criminal indictment.[11] In the words of the governing rule, “[a] person applying for punishment of a contempt must file an application specifying the alleged contempt”.[12] It will be a sufficient specification of a contempt for the purposes of this rule if the alleged contemnor is informed of the subject matter of the breach alleged.[13] Other ways of expressing the same notion would be to say that the application should “distinctly state”[14] the charge or to say that the substance, or gist, of the charge should be set out.[15]
  3. The function of particulars accompanying a charge of contempt is different. It is to specify the acts or omissions on the part of the alleged contemnor that are alleged to constitute the charge.[16] Again, particulars “do not need to be set out in the same way as separate counts have to be set out in an indictment” and nor is there a “need to give the particulars that you would normally expect to be seen in a count in an indictment”.[17]
  4. Indeed, although it has been observed that a proceeding for contempt is essentially criminal in nature, it is not a proceeding that can be equated with a trial on indictment.[18] Rather, it is a proceeding in the civil jurisdiction of the court[19] and, as such, the UCPR applies. Although it can never be overlooked that strict compliance with those rules is required in a proceeding such as this, it must also be remembered that the purpose of those rules is to “facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”,[20] and they are to be “applied by the courts with the objective of avoiding undue delay, expense and technicality” and in a way that facilitates that purpose.[21] The complaints advanced on behalf of Mr Hough fall to be considered with these matters in mind.
  5. The strike out application does not identify the provision of the UCPR under which it is brought. However, it was submitted on Mr Hough’s behalf that the court should summarily terminate the application in the exercise of the court’s inherent jurisdiction.[22] That the inherent jurisdiction of the court may be invoked when a contempt application is brought without foundation can scarcely be doubted,[23] but the court will only be moved to intervene in such a way in the clearest of cases.[24] That will be so where the application suffers from some irremediable defect such as a failure to strictly comply with the procedural rules.[25] It will also be so where it is demonstrated that the application is so obviously untenable that it cannot possibly succeed.[26] It will not be so where there is a real question of fact to be determined.[27] Plainly, a cautious approach is required.

(a)Absence of a penalty notice

  1. Neither order was endorsed in accordance with r 665(3) UCPR. That rule provides as follows:

“An order requiring a person to perform an act must have written on it or attached to it the following statement or a statement to the same effect –

‘If you, [state name of person required to perform act] do not obey this order within the time specified, you will be liable to court proceedings to compel you to obey it and punishment for contempt.’ ”

  1. Rule 665(3) UCPR requires what is commonly referred to as a penal notice. Mr Hough contends that, because no penal notice was endorsed on either order, the undertakings embodied in those orders cannot be enforced. It was argued on his behalf that he has been disadvantaged by the absence of a penal notice, that the court should require strict compliance with r 665(3) UCPR and that the contempt application should be dismissed on that basis.
  2. It has already been observed that strict compliance with the procedural rules is required in connection with an application to have someone dealt with for contempt. The question, though, is whether r 665(3) applies to an undertaking incorporated in an order of the court. In my opinion, it does not.[28]
  3. By r 900 UCPR, an undertaking to the court may be enforced either by punishment for contempt or by seizure of property. Rule 900 additionally provides that an undertaking for the payment of money may be enforced as if it were a money order,[29] but neither undertaking under consideration here may be so characterised. Rule 665(3) UCPR applies to orders and, even then, only to orders that require a person to perform an act.[30] When it does apply, “a court should not excuse non-compliance … unless it can be satisfied that the person sought to be imprisoned has not been disadvantaged by the non-compliance.”[31]
  4. On a plain reading of r 665(3) UCPR, it has no application to an undertaking recorded in an order, and the terms of the required notice – “if you … do not obey this order … you will be liable to court proceedings to compel you to obey it …” – offer strong support for that conclusion. Indeed, that was the position under the previous procedural regime, where the relevant rule was in terms analogous to r 665(3) UCPR. It provided as follows:

“Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered to be done shall state the time, or the time after service of the judgment or order, within which the act is to be done, and there shall be endorsed upon the copy of the judgment or order served upon the person required to obey the same a memorandum in the words or to the effect following, viz. –

‘If you, the within-named A.B., neglect to obey this judgment [or order] by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the judgment [or order]’.”[32]

  1. In Re Intex Consultants Pty Ltd,[33] Thomas J had occasion to consider this rule, and held that it did not apply to an undertaking incorporated in an order. In so holding, his Honour highlighted the “fundamental distinction between the enforcement of an undertaking and the enforcement of an order”.[34] His Honour explained:

“[T]he importance of the distinction was adverted to in Hussain v Hussain[35] – ‘Undertakings might be recorded in an order of the court, but it was the undertaking and not the order which required its giver to act in accordance with its terms’. The Master of the Rolls went on to point out that if the respondent failed to carry out his undertaking ‘he could not be said to have breached an order which happened to record the undertaking’. The decision makes it clear that the rules applicable to breaches of orders ought not automatically to be applied to the enforcement of breaches of undertakings.”[36]

  1. The conclusion reached by Thomas J in Re Intex Consultants Pty Ltd was confirmed by Helman J in GND Developments Pty Ltd (in liq), Moloney & Geroff v D A Luttrell Nominees Pty Ltd & Ors.[37] It is also a conclusion that is consistent with the approach taken to the question in other jurisdictions.[38] I can see no reason to hold otherwise in the case of an undertaking incorporated in an order taken out under the UCPR.
  2. For Mr Hough, reliance was placed on decisions such as Costello v Courtney,[39] Camm v ASI Development Company Pty Ltd[40] and Burton v Spencer[41] in an attempt to urge a different conclusion. Each of those decisions concerned orders and not undertakings, and do not assist on this point. I hold that there was no requirement under the rules for a penal notice to be endorsed on the relevant orders.

(b)Duplicity

  1. For Mr Hough, it is contended that the contempt application is bad for duplicity. The common law rule against duplicity prevents one count on an indictment charging a person with two or more separate offences.[42] The often-cited rationale for the rule appears in Johnson v Miller[43] and is to the effect that a defendant in a criminal trial is entitled to know the specific offence that is being alleged against him or her.
  2. Here, if the rule against duplicity applies, the first of the two charges set out above (at [7]) would fall foul of that rule. That is because the charge contains a compound series of allegations – that is to say, that Mr Hough failed to co-operate, to act reasonably and genuinely in and to do all things necessary on his part to assist JBS – coupled with an allegation expressed in the alternative that Mr Hough so failed by either refusing or failing to answer JBS’ queries in a timely way.
  3. In support of Mr Hough’s contention that the rule against duplicity applies, a passage from the judgment of Douglas J in ASIC v Jorgensen & Ors[44] was submitted to be authority for the proposition that “a complaint of duplicity in a contempt charge was a good complaint”.[45] This submission was not expressed with great conviction, and it was rightly acknowledged by Mr Hough’s counsel that there is a “strong line of authority” against the correctness of that proposition.[46]
  4. Douglas J did not hold that the rule against duplicity, in its strict sense, applies to contempt applications, and nor would I. Instead, his Honour was dealing with a complaint that had been advanced by the respondent in that matter under the rubric of duplicity. This was simply a convenient way of referring to that complaint. The respondent had been charged with contempt of five separate orders in circumstances where the charge and particulars failed to identify which conduct was alleged to amount to a contempt of any particular order. His Honour held that this was a valid complaint. No argument appears to have been directed to his Honour on the question whether, as a general proposition, the rule against duplicity applied to a proceeding for contempt. All that his Honour decided was that, in the circumstances mentioned, the respondent could not “consider sensibly which acts alleged against him are alleged to contravene which order without making uncertain assumptions or drawing inferences themselves unclear.”[47] In so holding, his Honour did no more than to find that the charge was preferred in terms that were too uncertain to inform the respondent of the case he was expected to meet. There was nothing surprising about that result. As earlier mentioned, “[a] person applying for punishment of a contempt must file an application specifying the alleged contempt”,[48] and that will be so if it sufficiently informs the alleged contemnor of the subject matter of the breach alleged.[49] The charge considered by his Honour was plainly inapt to do so.
  5. It follows that, provided the application specifies the alleged contempt in the sense that it brings the subject matter of the alleged breach or breaches to the respondent’s notice, it will be effective. To the point of this particular complaint made on behalf of Mr Hough, the rule against duplicity does not apply to a proceeding for contempt.
  6. To so hold is consistent with one of the objectives of the UCPR – the avoidance of undue technicality.[50] It has also long been the position in proceedings for contempt, as the following observations in Coward v Stapleton make clear:

“ … it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard (1868) LR 2 PC 106 at 120; R v Foster; Ex parte Isaacs (1941) VLR 77 at 81. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hong Kiu v Piggott (1909) AC 312 at 315.”[51]

  1. That said, and leaving aside any question of duplicity, the specific complaint made on behalf of Mr Hough is that the contempt application does not inform as to “which of the two orders or which paragraph of the orders or undertakings [Mrs O’Donoghue] claims are breached”.[52] There is no substance to this complaint. True it is that the undertakings in question are to be found in two separate orders but, as already noted, the undertakings contained in the second of the two orders operate to continue the undertakings given in the first. The particulars supplied in the body of the contempt application specify which acts or omissions on the part of Mr Hough are relied on to support the two charges. Importantly to a consideration of this complaint, the particulars also specify when Mr Hough is alleged to have acted or omitted to act, as the case may be.[53] There is no room for any confusion as to whether any of the particularised failings occurred before or after the undertakings were continued on 14 October 2014. In short, the charges of contempt brought by Mrs O’Donoghue, when read with the particulars supplied in the body of the contempt application are sufficient to bring to Mr Hough’s notice the subject matter of the breaches of the undertakings which are alleged. I reject Mr Hough’s contentions to the contrary.
  2. It only remains to be said that, here, where numerous particulars have been supplied to support the charges, it will be enough to make out a charge if any one particular supplied for that charge is proved beyond reasonable doubt.[54] If more than one particular is so proved, that is something which will go to penalty.

(c)Incorporation of documents by reference

  1. The next complaint made on Mr Hough’s behalf is that the particulars supplied in the contempt application impermissibly refer to “multiple extrinsic documents”. Reliance was placed on statements of principle to be derived from decisions such as Harmsworth v Harmsworth,[55] ASIC v Jorgensen & Ors,[56] Inghams Enterprises Pty Ltd v Timania Pty Ltd[57] and Carew Reid v Carew Corporation Pty Ltd[58] to the effect that the gist of the allegation (or charge) must appear “within the four corners of the notice itself”[59] and that it is not acceptable to fill gaps in that information by reference to other documents such as affidavits filed in the proceeding.[60] So much may be accepted if for no other reason than that r 926(1) UCPR requires the alleged contempt to be specified in the application,[61] but the point will only be good in this case if, stripped of the documentary references in the particulars contained in the contempt application, the two charges when read with the particulars that do remain were insufficient to bring the subject matter of the alleged breaches to Mr Hough’s notice.
  2. Here, there are many references to the affidavit evidence in the particulars contained in the contempt application. But, without those references, the allegations and remaining particulars are quite sufficient to specify the contempt alleged in the sense just discussed. In point, all that the references do is supplement that information;[62] they do not fill gaps in what would otherwise be deficient charges or particulars. Strictly speaking such references are not particulars, but evidence, although they might be considered helpful because they provide pointers to the key documents with respect to each particular that has been supplied in support of the charges.
  3. In the result, I am not persuaded that there is any merit in this complaint, but for clarity, I should make two additional observations.
  4. First, the requirement under r 926(1) UCPR to specify the contempt in the initiating application needs to be viewed sensibly. How such specification is achieved will vary from case to case. In most cases, the allegation (or charge) of contempt will stand alone in the application but it may be appropriate in another case, as Woolf LJ observed in Harmsworth v Harmsworth,[63] to annex a document to it. In other cases, particulars might be attached to the application. Provided any such annexures or attachments are incorporated by reference in, and provided with, the application, I see no difficulty with such an approach because those documents will form part of the application. Strict compliance with the procedural rules will still be achieved but in a way that, in a particular case, perhaps better conforms with the objectives under the UCPR to “facilitate the just and expeditious resolution of the real issues … at a minimum of expense”[64] and to avoid “undue delay, expense and technicality”.[65] What is important is that the recipient of such an application is left in no doubt about the gist of the charges being brought against him or her.
  5. Secondly, just because the charges and any accompanying particulars are sufficient to specify the alleged contempt does not mean that further particulars or information about the case that person will be expected to meet do not need to be supplied. Obviously, much will depend on the degree of detail incorporated in the initiating application, as well as the complexity of the allegations made and the evidence relied on in support of those allegations. In all cases, the respondent to such an application should be fairly apprised of the applicant’s case and, in that way, given a proper opportunity to answer the allegations. Here, that has been achieved in my view in a comprehensive way by the subsequent provision of the particulars, schedules and documentary evidence to which I have previously made reference. 

(d)Insufficient particulars

  1. Mr Hough’s next complaint is that the charges and particulars “lack sufficient particularity for [Mr Hough] to have a reasonably clear and intelligible statement of the offence alleged”.[66] Lengthy submissions were devoted to this complaint, although they stop short of asserting that Mr Hough is presently confused about the case he has to meet.[67]
  2. In the first place, and for the reasons already stated, I do not accept that the contempt application as presently framed fails to provide a “clear and intelligible statement” of the breaches alleged against Mr Hough. Secondly, I take the same view of the particulars that are provided in the contempt application; none of Mr Hough’s complaints are such as to justify a striking out of any of them.
  3. Otherwise, Mr Hough’s grievances under this head of complaint appear to largely go to the broader body of material that has been supplied on behalf of Mrs O’Donoghue. It is, however, quite a separate question whether the supplementary information contained in the application or the further particulars, schedules and documentary evidence which have been provided are sufficient to fairly apprise him of Mrs O’Donoghue’s case. As I have said, it is my view that, taken together, they do. But even if that were not the position, Mr Hough’s remedy is an application for further and better particulars or some form of remedial directions, not a strike out application.
  4. As it happens, there were initially a number of errors in the schedules that were provided to Mr Hough’s legal representatives, but these have since been addressed or conceded. So, too, has the contempt application undergone considerable transformation since it was initially filed and the evidence in support of it has broadened. But none of these features impact one way or the other on the discretion I am now being asked to exercise. Nor can any prejudice have been caused to Mr Hough by the variations in Mrs O’Donoghue’s case given that the contempt application now stands adjourned to a date to be fixed. I reject the contentions made on behalf of Mr Hough under this head of complaint.

(e)Compliance with rr 149(1)(c), 150(f) and 150(w) UCPR

  1. The strike out application advances as a ground that the contempt application fails to comply with rr 149(1)(c), 150(f) and 150(w) UCPR. Those rules apply to pleadings in a proceeding started by claim or where the court has otherwise ordered pleadings to be filed.[68] No such order has been made in this case. This head of complaint has no merit.

(f)Failure to demonstrate a cause of action

  1. Again, the strike out application advanced as a ground that the contempt application failed to disclose a cause of action. In a number of places in the written submissions provided on behalf of Mr Hough, it is asserted that a certain particular of the contempt application fails to disclose a cause of action.[69] Properly viewed, these complaints are to the effect that the relevant particular cannot be made out, whether for the reason that it is argued that the evidence fails to support the particular or for some other reason. Each of those arguments can be run at the hearing of the application. They do not, without more, justify the striking out of the particulars in question at this stage of the proceeding. That is because I am not persuaded that what is particularised in each case is so untenable that it could not possibly be sustained at the hearing.
  2. In the same vein are the complaints made elsewhere in the submissions made on behalf of Mr Hough regarding the admissibility of certain evidence (including the authenticity of some of the financial documents) as well as arguments concerning the proper construction of the undertakings in question (including the meaning to be attributed to the expression “in a timely manner” where it is used in the first of those undertakings). Those are all matters that can, and should, be canvassed at the hearing. In these respects, I am again not persuaded that the particulars which were the subject of those submissions are so untenable that they could not be established at the hearing.
  3. I reject each of the contentions made on behalf of Mr Hough under this head of complaint.

Conclusion

  1. In the result, none of the grounds advanced in the strike out application or elsewhere in the written submissions made on behalf of Mr Hough can be upheld.

Orders

  1. For these reasons, the strike out application must be dismissed.
  2. No reason has been advanced why costs should not follow that result. Mr Hough will accordingly be ordered to pay Mrs O’Donoghue’s costs of and incidental to the strike out application to be assessed on the standard basis.
  3. I shall hear the parties on the question of the costs of their other appearances to date as well as on the question whether any further directions need to be made to ready the contempt application for hearing.[70]

Footnotes

[1] The Davidson House Trust and the Glenrock Trust.

[2] Tenancy Management Pty Ltd.

[3] JBS Corporation Pty Ltd trading as JBS Bookkeeping Services (“JBS”).

[4] Merrotts.

[5] From the other terms of the order, the “said business” was intended as a reference to “the business formerly conducted by Tenancy Management Pty Ltd under the style of the ‘Yellow Submarine’ ”. See paragraph 2(a).

[6] Scott Graham Whitla, Solicitor.

[7] Amended Application dated 17 November 2015, [2]; Further Submissions on behalf of Mr Hough dated 17 November 2015, [346] – [368].

[8] Bakir v Doueihi [2002] QSC 19 at 11 – 12, [6] – [8] per Atkinson J.

[9] Colefax v Colefax [1933] St R Qd 222 at 224; Hafele Australia Pty Ltd & Anor v Maggbury Pty Ltd & Anor [2000] QCA 397 at [29]; Costello v Courtney [2000] QSC 67 at [9]; [2001] 1 Qd R 481 at 483 [9] per Wilson J; Camm v ASI Development Company Pty Ltd [2007] QCA 317 at 10 per Keane JA.

[10] Witham v Holloway [1995] HCA 3 at [19]; (1995) 183 CLR 525 at 534 per Brennan, Deane, Toohey and Gaudron JJ.

[11] Harmsworth v Harmsworth [1987] 3 All ER 816 at 823; [1987] 1 WLR 1676 at 1686; Matthews v ASIC [2009] NSWCA 155 at [38] – [46] per Tobias JA.

[12] UCPR r 926(1).

[13] Harmsworth v Harmsworth [1987] 3 All ER 816 at 823; [1987] 1 WLR 1676 at 1686; Matthews v ASIC [2009] NSWCA 155 at [40].

[14] Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573 at 579 – 580; Doyle v The Commonwealth [1985] HCA 46; (1985) 156 CLR 510 at 516.

[15] Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573 at 579 – 580; Concrete Constructions Pty Ltd & Anor v The Plumbers & Gasfitters Employees Union of Australia & Anor (No 2) [1987] FCA 117; (1987) 15 FCR 64 at 73 [28] per Wilcox J; Matthews v ASIC [2009] NSWCA 155 at [45] – [49].

[16] Concrete Constructions Pty Ltd & Anor v The Plumbers & Gasfitters Employees Union of Australia & Anor (No 2) [1987] FCA 117; (1987) 15 FCR 64 at 73 [28] per Wilcox J.

[17] Harmsworth v Harmsworth [1987] 3 All ER 816 at 823; Matthews v ASIC [2009] NSWCA 155 at [45] – [46], [67] per Tobias JA.

[18] Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15 at 89; Witham v Holloway [1995] HCA 3 at [19]; (1995) 183 CLR 525 at 534; Matthews v ASIC [2009] NSWCA 155 at [38] – [39].

[19] Re Colina; Ex parte Torney [1999] HCA 57 at [109]; (1999) 200 CLR 386 at 428 [109] per Hayne J; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 320 ALR 448 at 456 [40].

[20] UCPR r 5(1).

[21] UCPR r 5(2).

[22] Submissions on behalf of Mr Hough dated 30 October 2015, [13].

[23] For example, in Markisic v The Commonwealth [2006] NSWCA 150, the NSW Court of Appeal upheld a decision made at first instance (Hidden J) to strike out a notice of motion for contempt when the motion was adjudged to be “entirely without substance”. See also, more generally, Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256.

[24] Agar v Hyde [2000] HCA 41 at 21 – 22 [57]; (2000) 201 CLR 552 at 575 – 576 [57] per Gaudron, McHugh, Gummow and Hayne JJ.

[25] See, eg, Costello v Courtney [2000] QSC 67.

[26] To use one of the formulations expressed by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 – 130. That formulation is not unlike the criteria prescribed by r 293(2) UCPR to be applied in the case of an application by a defendant for summary judgment in a proceeding started by claim, i.e., whether the application has no real prospect of succeeding and whether there is no need for a hearing, as to which see Pipeworks Australia v Betcop Pty Ltd atf The Watts Family Trust & Ors [2015] QSC 284 at [31] – [33]. See also Agar v Hyde [2000] HCA 41 at 21 – 22 [57]; (2000) 201 CLR 552 at 575 – 576 [57] where Gaudron, McHugh, Gummow and Hayne JJ observed that “all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”.

[27] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130.

[28] Or at least not in the case of the subject undertakings. The position may well be otherwise in the case of an undertaking for the payment of money because of the terms of r 900(2) UCPR.

[29] UCPR r 900(2).

[30] Commissioner for Fair Trading v TLC Consulting Services Pty Ltd & Ors [2011] QSC 233 at 10 [19] per Philippides J; Burton v Spencer [2015] QSC 187 at 14 [60] per Henry J.

[31] Camm v ASI Development Company Pty Ltd [2007] QCA 317 at 12 per Keane JA; also quoted in Burton v Spencer [2015] QSC 187 at 15 – 16 [66] – [70]. See also Costello v Courtney [2000] QSC 67 at [12]; [2001] 1 Qd R 481 at 483 – 484 [12].

[32] Rules of the Supreme Court O 44 r 4.

[33] [1986] 2 Qd R 99.

[34] Ibid at 109.

[35] [1986] Fam 134; [1986] 1 All ER 961.

[36] Re Intex Consultants Pty Ltd [1986] 2 Qd R 99 at 108.

[37] [1998] QSC 159 at 4.

[38] Windsurfing International Inc v. Sailboards Australia Pty Ltd (1986) 19 FCR 110 at 112 – 116; Alexander v Crawford [2003] NSWSC 426 at [35]; Deckers Outdoor Corporation Inc v Farley (No 6) [2010] FCA 391 at 61 [160].

[39] [2000] QSC 67; [2001] 1 Qd R 481.

[40] [2007] QCA 317.

[41] [2015] QSC 187.

[42] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 104.

[43] [1937] HCA 77; (1937) 59 CLR 467 at 497 – 498.

[44] [2008] QSC 91 at 5 – 6 [17].

[45] Further Submissions on behalf of Mr Hough dated 17 November 2015, [6].

[46] Ibid [7], referring to Harmsworth v Harmsworth [1987] 3 All ER 816 at 823; [1987] 1 WLR 1676 at 1686; Concrete Constructions Pty Ltd & Anor v Plumbers & Gasfitters Employees’ Union & Anor (No 2) [1987] FCA 117 at [31]; (1987) 15 FCR 64 at 74; Lazar v Taito (Australia) Pty Ltd & Anor [1985] FCA 35; (1985) 67 ALR 652 at 655. See also Matthews v ASIC [2009] NSWCA 155 at [45], [165]; Burwood Council v Steve Nolan Constructions Pty Ltd [2014] NSWLEC 54 at [47].

[47] ASIC v Jorgensen & Ors [2008] QSC 91 at 5 – 6 [17].

[48] UCPR r 926(1).

[49] Harmsworth v Harmsworth [1987] 3 All ER 816 at 823; [1987] 1 WLR 1676 at 1686; Matthews v ASIC [2009] NSWCA 155 at [40].

[50] UCPR r 5(2).

[51] [1953] HCA 48; (1953) 90 CLR 573, 579 – 580. See also Harmsworth v Harmsworth [1987] 3 All ER 816 at 823; [1987] 1 WLR 1676 at 1686; Chiltern District Council v Keane [1985] 2 All ER 118 at 119; [1985] 1 WLR 619 at 622; Matthews v ASIC [2009] NSWCA 155 at [45]; Concrete Constructions Pty Ltd & Anor v Plumbers & Gasfitters Employees’ Union & Anor (No 2) [1987] FCA 117 at [31]; (1987) 15 FCR 64 at 74 per Wilcox J.

[52] Submissions on behalf of Mr Hough dated 30 October 2015, [27].

[53] To cite just two examples, and one for each of the allegations (or charges):

  • By particular (a)(i)(A)(1) it is alleged that Mr Hough breached the undertaking he gave to “co-operate, act reasonably and genuinely in, or do all things necessary on his part to assist” JBS to complete their engagement by refusing to answer “queries” made of him by JBS via email correspondence on 29 May 2015 in relation to Tenancy Management Pty Ltd with respect to the “movement of cash and funds given to him to bank” in the 2010 financial year. The subject matter of the relevant “query” is then precisely identified as well as the date on which it was made.
  • By particular (b)(i)(A) it is alleged that Mr Hough breached the undertaking he gave to “answer truthfully queries raised by JBS” by asserting in an email that cash received by him from Tenancy Management Pty Ltd and the third and fourth respondents after 1 July 2009 was paid to him in reduction of loans that he had made to each of those three entities. The date and time of the email in which the alleged “untruth” appears is specified (12 June 2015; 11.57 am).

[54] Montgomery v Stewart [1967] HCA 11; (1967) 116 CLR 220; Matthews v ASIC [2009] NSWCA 155 at [67].

[55] [1987] 3 All ER 816 at 821; 1 WLR 1676 at 1683.

[56] [2008] QSC 91 at 6 – 7 [24].

[57] [2005] FCAFC 155 at [32]; (2005) 221 ALR 823 at 835 [32].

[58] (Unreported, Full Court of the Supreme Court of Western Australia, Malcolm CJ, Franklin and Nicholson JJ, 23 April 1993).

[59] Harmsworth v Harmsworth [1987] 3 All ER 816 at 821; 1 WLR 1676 at 1683.

[60] See also Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [31].

[61] It should, in any event, be noted that most of the decisions relied on by Mr Hough were made under different procedural rules.

[62] To continue the examples provided in footnote 53, the documents containing the “queries” referred to in particular (a)(i)(A)(1) are referenced as is the email referred to in particular (b)(i)(A).

[63] [1987] 3 All ER 816 at 823; 1 WLR 1676 at 1686.

[64] UCPR r 5(1).

[65] UCPR r 5(2).

[66] Amended Application dated 17 November 2015, [2] – a reference to ASIC v Jorgensen & Ors [2008] QSC 91 at 5 [15] – [17] and Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 495 – 496.

[67] A submission was made that Mr Hough could not understand the case he had to answer, but that was expressed in the past tense: Further Submissions on behalf of Mr Hough dated 17 November 2015, [215].

[68] UCPR r 145.

[69] See the arguments which commence on pages 40, 42, 44, 45, 47, 48 and 50 of the Further Submissions on behalf of Mr Hough dated 17 November 2015.

[70] In the latter respect it is to be observed that the strike out application seeks certain directions as a form of relief in the alternative, although no submissions have yet been made by either party regarding that part of the application.

Close

Editorial Notes

  • Published Case Name:

    O'Connor & Ors v Hough & Ors

  • Shortened Case Name:

    O'Connor v Hough

  • Reported Citation:

    [2016] 2 Qd R 543

  • MNC:

    [2016] QSC 4

  • Court:

    QSC

  • Judge(s):

    Burns J

  • Date:

    08 Jan 2016

Litigation History

No Litigation History

Appeal Status

No Status