Prothonotary of the Supreme Court of New South Wales v Whit

This judgment sets out the reasons why on 9 March 2023 the Court committed the defendant contemnor, Mr Ronald Brian Whit (Mr Whit), to imprisonment for a term of one year subject to being suspended if he complied with the Court’s orders that gave rise to the proceedings against him.

It should be observed at the outset that a significant feature of this matter was that Mr Whit’s conduct was integrally connected to his role as an executor. In addition to the need both to punish Mr Whit and compel his compliance with the orders of which he was in contempt, his sentence may serve as a salutary reminder of the importance the Court attaches to the proper discharge of an executor’s duties and to deter departure from the high standard of conduct which is expected of executors both under the general law and statute.

On 13 December 2022, Mr Whit pleaded guilty to these charges of contempt:

At the conclusion of a hearing as to penalty on 9 March 2023, the Court made these orders:

These are the reasons for those orders.

Mr J Emmett of Senior Counsel appeared for the Prothonotary. Mr T Spohr of Counsel appeared for Mr Whit. The Court acknowledges the considerable assistance it received from the written submissions of both counsel, and the efficient way in which they conducted the hearing.

At the outset of the hearing, in response to a question which I asked, Mr Spohr assured the Court that Mr Whit, who was present in court, understood what was happening and the seriousness of the situation he was confronting. I then addressed Mr Whit directly. The gravamen of what I said to him was that the Court was prepared to give him one last chance to comply with the orders of Rein J of which Mr Whit was in contempt. If he did not do so, I indicated that it was highly likely that the Court would have no alternative but to impose a custodial sentence. However, if he did comply with the orders by providing, in the first instance, what he could in the course of a two-hour adjournment I was prepared to grant him, then it would be highly unlikely that the Court would impose a prison sentence.

After taking advice, and with the assistance of his lawyers, Mr Whit filed in Court the affidavit set out in [63] below. This explained why he could not comply with Rein J’s orders in the time available during the adjournment, but proposed a timetable within which he would comply. Importantly, that affidavit concluded with:

In the light of those instructions, the balance of the hearing proceeded on the basis that the only issue in dispute was the term of the sentence which the Court would impose. However, in a matter such as this, that concession does not absolve the Court from forming its own view that a custodial sentence was appropriate. As a matter of the public interest, I do not consider such a concession or agreement between the parties can bind the Court. I therefore make clear that, irrespective of the position adopted by Mr Whit, by reason of the Executor Issue (see [68] to [72] below) and the Circumstances (see [73] below) I was well satisfied that this was a clear case for the imposition of a custodial sentence as the “last resort” (see the principles set out in [79] below).

I next set out the agreed statement of facts in [11] to [59] below. The various emphases in what follows are mine for the purposes of these reasons.

On 9 June 2009, Ronald Whit (“the deceased”) died, leaving behind a Will dated May 1997 (the Will).

On 1 June 2017, Mr Whit was granted probate by the Court as the executor named in the Will. Mr Whit’s application for probate was supported by an affidavit filed on 24 May 2017, which set out the assets of the Estate at $175,000 net assets.

On 21 December 2018, Ms Mottley commenced proceedings, by way of a statement of claim, in the Equity Division of the Supreme Court of NSW seeking that the grant of probate be revoked and that the defendant file verified accounts (“the proceedings”).

Ms Mottley engaged a process server to serve the commencing documents personally on Mr Whit at his address in Yallourn North, Victoria; those attempts occurred between 21 January 2019 and 14 July 2019.

On 23 April 2019, Ms Mottley’s solicitor, Mr Michael Atkinson, sent Mr Whit a copy of the statement of claim by post and by email.

On 2 September 2019, the Court made orders extending the time for service of the statement of claim upon Mr Whit to 21 December 2019. Orders were also made for substituted service. On 6 September 2019, the statement of claim was personally served on Mr Whit. Mr Whit has no recollection of this occurring.

On 25 November 2019, the Court listed the matter for hearing on 3 February 2020 and made an order for Ms Mottley to notify Mr Whit of the hearing date.

Mr Whit moved out of the address in Yallourn North, Victoria around early December 2019.

On 26 November 2019, Mr Atkinson sent a letter to Mr Whit notifying him of the hearing on 3 February 2020 by express post to XX Third Street, Yallourn North, Victoria, and by email to XXXX@me.com.

On 27 November 2019, Mr Atkinson also sent an SMS message to Mr Whit notifying him of the hearing date.

On 3 February 2020, the proceedings were listed before Rein J for hearing. Mr Whit did not appear. His Honour adjourned the proceedings to 14 February 2020 for directions.

On 14 February 2020, the proceedings were listed for directions before Rein J. Mr Whit did not appear. Further orders were made, including orders that the plaintiff serve the orders personally on Mr Whit.

Those orders were subsequently varied on 2 March 2020 and 24 April 2020.

Between 14 February 2020 and 17 August 2020, several attempts were made to locate and personally serve Mr Whit in accordance with those orders.

On 21 July 2020, Mr Smith called Mr Whit and they had a brief conversation in which Mr Smith referred to a court case and attempted to solicit Mr Whit’s address. Mr Whit replied to the effect that he did not have one.

On 7 August 2020, Mr Atkinson sent a letter to Mr Whit via email to XXXX@me.com requesting a current address for service.

On 17 August 2020, the proceedings were again listed before Rein J. Mr Whit did not appear. His Honour made the following orders (emphases added):

On 19 August 2020, Mr Atkinson sent an email in accordance with Order 3.

On 16 October 2020, the proceedings were listed for hearing before Rein J. Mr Whit did not appear in person or by AVL.

Ms Mottley’s representatives sought that his Honour issue a bench warrant for Mr Whit’s arrest. Rein J requested that he be provided with Mr Whit’s date of birth so that a warrant could be issued.

On 18 November 2020, having received the necessary information, Rein J made the following order in chambers:

On 22 February 2021, the Superintendent, Civil Enforcement Command, Office of Sheriff, sent a letter to the defendant requiring him to surrender himself to the Court by 24 March 2021. The letter was sent by express post to XX Third Street, Yallourn North, Victoria, and by email to XXXX@me.com.

Mr Whit did not surrender himself to the Court.

At approximately 10:15am on 13 December 2021, Mr Whit was arrested in a caravan park at XXXXX, Moe, Victoria, pursuant to the warrant issued on 18 November 2020. The arrest was performed by a number of Victorian Police Officers attached to the Fugitive Squad, accompanied by three NSW Sherriff’s Officers.

At the time of the arrest, Mr Whit was asked if he knew why Police were in attendance. He responded with words to the effect of “I have an idea, I was expecting this.”

Mr Whit was brought before the Melbourne Magistrate’s Court where an order was made pursuant to s. 83(8)(b) of the Service and Execution of Process Act 1992 (Cth) for Mr Whit to be taken to the NSW Supreme Court by Officers of the Sheriff’s Office of NSW. Mr Whit did not contest the order and did not seek bail.

Mr Whit remained in the custody of Victorian Police overnight and was conveyed to Tullamarine Airport on the morning of 14 December 2021.

At approximately 10:00am, Mr Whit was flown to Sydney in the custody of NSW Sherriff’s Officers.

Following his return to Sydney, Mr Whit was brought before Rein J. Mr Spohr, then a Solicitor Advocate at Legal Aid NSW appeared as amicus, having received an application for aid by Mr Whit. Mr Emmett SC also appeared as amicus, instructed by the Crown Solicitor’s Office, on behalf of the Prothonotary.

During the course of the proceedings, his Honour directed the Prothonotary to apply, by way of notice of motion in the proceedings, for punishment for contempt.

In accordance with his Honour’s direction, a Notice of Motion and Summary of Charges were filed in court.

During proceedings, in Mr Whit’s presence, his Honour made the following observations (emphases added):

The following was also put forward on behalf of Mr Whit (emphasis added):

Following submissions by both Mr Emmett SC and Mr Spohr, his Honour determined to release Mr Whit on bail pending resolution of the contempt charges, subject to an undertaking that he comply with the following undertakings:

The proceedings returned for further directions before Rein J on 15 December 2021. Mr Whit was present in court and was separately represented for the substantive probate proceedings and the contempt motion.

His Honour made the following orders (emphases added):

Mr Whit did not comply with orders 1 or 2 made by Rein J on 15 December 2021 set out in the preceding paragraph (the Orders).

On 21 March 2022, the proceedings were listed for directions before Hallen J.

Mr Spohr appeared for Mr Whit in connection with the contempt motion. Mr Whit’s representatives in the probate proceedings advised his Honour that they had been granted leave by the Registrar to withdraw. Mr Whit appeared, by AVL, for himself in connection to that part of the proceedings. Brett Thomson of the Crown Solicitor’s Office appeared for the Prothonotary.

His Honour was notified that Mr Whit had not complied with the Orders. The following exchanges occurred (emphases added):

His Honour made the following orders:

Mr Whit has not complied with the Orders.

On 11 April 2022, the matter was listed for directions before Registrar Walton. The Registrar made orders for the exchange of evidence on the contempt motion and granted the Prothonotary leave to file an Amended Notice of Motion.

26 April 2022, the Prothonotary filed and served an Amended Notice of Motion seeking that Mr Whit also be punished for contempt by failing to comply with the Orders.

At all material times, Mr Whit’s email address of XXXX@me.com was active and Mr Whit had the means to access that account.

Mr Whit receives a high volume of emails though this account and as a result he reads very few emails. In May 2022, Mr Whit had 27,900 unread emails in his email account, and on the basis of this figure he estimates that he had about 25,000 unread emails in his account as at October 2020.

At some point in 2021, something occurred which suggested to Mr Whit that he may have received correspondence from Ms Mottley. He searched his emails and identified one or two emails which had been sent to him by Mr Atkinson.

Mr Whit denies reading any emails, or seeing any emails even by subject line, in connection to the proceedings brought by Ms Mottley prior to conducting this search.

Since locating those emails in 2021, Mr Whit has not changed his residential address, email address or telephone number.

There were three other sources of facts upon which the Court relied as having been established.

First, there was tendered in evidence a certificate which demonstrated that:

Second, Mr Whit relied upon an affidavit which he had made in these terms:

Third, in the affidavit filed during the course of the hearing, Mr Whit deposed:

In relation to the affidavit set out in the previous paragraph, I accept Mr Emmett SC’s submission that its significance was twofold.

First, it did provide some (albeit very little) information about the deceased’s estate.

Second, it was the first sworn indication from Mr Whit that he was prepared to engage with the processes with the Court. This provided a proper foundation, which I accepted as such, for the Court to conclude that there was utility in suspending any sentence which the Court might impose so as to give Mr Whit a final opportunity to comply with the Orders. It was common ground that, as a practical matter, it would be difficult, if not impossible, for Mr Whit to do that from prison. He would have to be permitted to return to his home in Victoria, upon suitable undertakings in the nature of bail conditions, to have access to the material which he required to attempt to comply with Rein J’s orders.

In commencing consideration of the issues presented for determination, it is convenient that I begin by setting out two general matters which very much inform what follows. The first is what I shall refer to as the “Executor Issue”. The second I shall refer to as the “Circumstances”.

The Executor Issue is the recognition by the Court that Mr Whit was not just an ordinary civil litigant before the Court. He was an executor being sued in (at least) his capacity as such.

The consequence is that the conduct which Mr Whit has acknowledged was contemptuous is not just to be assessed as a breach of the obligation to which he was undoubtedly subject under s 56(3) of the Civil Procedure Act 2005 (NSW) that “a party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court” (emphasis added). That conduct was also to be measured against the common law (including equity) and statutory obligations of an executor, including to the Court.

Mr Whit sought to be appointed executor of the deceased’s estate. To be an executor is to hold an office (which in this context is a term of legal significance) which, although it might have its origin in a private instrument being a will, is given legal effect by an order of the Court and thereby is not just of a private character. It is a fiduciary position: both morally and legally a position of trust. It is not just a private function, but is a publicly recognised office which also fulfills a public interest to ensure the due administration of estates according to law. Not just those immediately concerned with the proper administration of an estate, but the members of the community generally, are entitled to expect that executors will discharge that office properly. Similarly, the community looks to the Court to ensure that is done and that a failure to meet the required standards of conduct is, where appropriate, penalised and thereby deterred.

The executor’s various duties are owed in their own particular respects to beneficiaries, third parties such as creditors of the estate, and the Court. In the context of estate litigation such as these proceedings, an executor has particular obligations which do not attach to an ordinary litigant or to the executor in some other capacity. In that regard, I respectfully adopt this convenient summary by McMillan J in Re Flavel; Application by Lipshut [2018] VSC 228 at [35]:

In making these observations, I do not lose sight of the fact that Mr Whit has pleaded guilty to the particular contempts as charged, being contempt of orders of this Court, as opposed to having been found guilty of breaching his duties as an executor. Nevertheless, his contemptuous conduct occurred in the context of him being an executor and defendant in proceedings affecting the estate committed to his administration. Furthermore, it is, in my respectful opinion, relevant that the Orders were not difficult or complex. The estate that is the subject of these proceedings is not large. If Mr Whit has complied with his duties as an executor, for example, to keep proper records and accounts, it is difficult to see what impediment there may have been to Mr Whit promptly complying with the Orders.

The second matter is the Circumstances. These are set out in the agreed facts which I have reproduced above, but the salient ones may be summarised as:

As I will discuss further below, the Circumstances demonstrate the objective seriousness of Mr Whit’s conduct. It is difficult to imagine circumstances in which a person in Mr Whit’s position could have been more on notice than he was of the seriousness of his situation, what he had to do and what might occur if he failed to do so.

The parties accepted that the effect of the relevant authorities was that whether conduct constituted civil or criminal contempt was not always easy to determine and, in many respects, could become a distinction without a difference. Nevertheless, both Mr Emmett SC and Mr Spohr agreed that the Court should identify the nature of Mr Whit’s contempt, not least for the purpose of any appeal rights. That is a sufficient reason for the Court to do so.

As a convenient summary, Mr Spohr helpfully drew the Court’s attention this observation by Nettle J in his concurring judgment in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 9 at [65] (emphases added; citations omitted):

I do not accept Mr Spohr’s submission that in the present case the primary purpose of the proceedings was to compel obedience which was classically the purpose of civil contempt (see, for example, Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21 (“ACP”). In the present case, I am satisfied beyond reasonable doubt by reason of the Circumstances that Mr Whit’s conduct in failing to comply with the Orders was defiant or contumacious, and therefore constituted a criminal contempt. I am also satisfied beyond reasonable doubt and find (as Mr Emmett SC submitted it was open to the Court to find):

In reaching this conclusion, I have also borne in mind that in pleading guilty, Mr Whit has formally admitted all the elements of the alleged contempt, including that the breach of the Orders was deliberate, and not casual, accidental or unintentional.

I respectfully adopt and apply the summary of the relevant principles by the Chief Justice, then President of the Court of Appeal sitting at first instance, in NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97:

There was no dispute between the parties that these were the applicable principles and, on the question of sentence, their submissions were directed to the factors identified in paragraphs [32] and [33] of the Chief Justice’s judgment. In applying those principles, I have taken the view that while in a case such as the present, coercion to compel compliance was an important consideration, issues of denunciation, deterrence and punishment were of equal significance, particularly because of the Executor Issue. Having found Mr Whit’s contempt to be criminal (see [77] above), I express my respectful agreement with this observation by Barwick CJ in ACP at 489:

By reason of both the Executor Issue and the Circumstances, the Court is satisfied that this is a serious contempt. The Orders required compliance by 2 March 2022. I accept Mr Spohr’s submission that the period of Mr Whit’s non-compliance is 12 months. Mr Whit has offered no reason, motive or excuse for his contempt. These might otherwise have provided some basis for exculpation, but that is not what has happened in this case.

Furthermore, I regard the seriousness of the contempt as being aggravated by Mr Whit’s failure to fulfil his further assurance to the Court on 21 March 2022. That aggravating feature warrants a longer sentence than might otherwise have been the case.

Mr Spohr submitted that there was no evidence of any benefit. I accept Mr Emmett SC’s submission that the Court just does not know one way or another. That lack of knowledge includes being unable to say whether or not avoiding providing the information for 12 months has been of benefit to him or otherwise.

By analogy with the criminal law, Mr Spohr submitted that the plea of guilty should be seen as an expression of contrition which, in this case, warranted a discount of 25% from the penalty that would otherwise have been imposed.

While a plea of guilty is capable of being evidence of contrition, in this universe of discourse (as opposed to what may be the case in the criminal jurisdiction) a plea of guilty without more is not necessarily evidence of contrition. In these proceedings, whatever benefit might otherwise have accrued to Mr Whit on the question of sentence by a plea of guilty is in my estimation neutralised by the fact that he has now sworn two affidavits, in neither of which he offers any expression of contrition or remorse or any explanation for his conduct.

In that regard, while his first affidavit (see [62] above) refers to some level of cognitive difficulty, no submission has been made on his behalf that such difficulty impaired his ability to understand or comply with the Orders, or to understand the possible consequences of his breach of them. Similarly, the affidavit which he swore during the course of the hearing (see [63] above), gave an explanation as to why he was unable to provide an affidavit on the day of the hearing, but not why he was unable to comply with the Orders over the period of months which he had been given to do so.

There was some debate between the parties about Mr Whit’s discharge without conviction in 1985 for the offence of “fraudulent misrepresentation”. There was ultimately no dispute that for the purposes of a sentencing exercise such as the present, the effect of the since repealed section 556A of the Crimes Act 1900 (NSW) was that Mr Whit did not have a conviction.

Mr Emmett SC nevertheless submitted that it was open to the Court to take into account the finding of guilt. It is not necessary for me to decide this point. As a matter going to the Court’s discretion, the conduct which gave rise to Mr Whit’s sentencing was nearly 40 years ago. For the purposes of the Court’s present task, I regard Mr Whit as being a person of good character and have taken that into account accordingly. That would have been the outcome even if I were to take into account the finding of guilty.

There was again no dispute between the parties that the Court should take into account the matters set out in Mr Whit’s first affidavit reproduced at [62] above. I have done so, particularly in the context of considering the proportionality or length of sentence that it is appropriate for the Court to impose.

Mr Whit’s contempt has led to a delay of one year in the conduct of the proceedings.

By reason of the Circumstances, the Court is satisfied beyond reasonable doubt that Mr Whit was well aware of the possible personal consequences of what he proposed to do in failing to comply with the Orders.

On behalf of Mr Whit, Mr Spohr accepted that these were all important factors. Nevertheless, he submitted that the general concepts of deterrence and denunciation had to be weighed against the purpose for which he submitted the proceedings were originally commenced, being to compel compliance with the Orders. In my respectful view, it is not a question of weighing one against the other. As I have said in [80] above, the compulsion of compliance is an additional, but equal factor in this case to the need to punish, deter and denounce.

The parties accepted that the Court was required to engage in an exercise of instinctive synthesis. To that end, and relying upon what was said to be an analogy with cases of contempt for refusing to answer questions, Mr Emmett SC’s submissions contained a helpful table of sentences that had been imposed in such cases, nearly all of which were criminal cases.

Mr Spohr submitted that the analogy was not apt. I disagree. However, while the analogy may be apt, with respect to the industry of Mr Emmett SC and those assisting him, I consider the present task to be so fact-specific that what sentence was imposed in other cases is of no real assistance. This is not a case where anything in the nature of a guideline judgment on sentencing exists.

In undertaking the sentencing task, I have borne in mind that Mr Whit’s conduct has been a criminal contempt involving serious or contumacious disregard of the Orders. That seriousness is established by the Executor Issue and the Circumstances. I have also taken into account the aggravating matter referred to in [82] above. The Executor Issue places a particular emphasis upon the need for a sentence that would be sufficient to deter others from similar conduct and remind executors generally of the importance of their obligations as such both inside and outside the courtroom.

Insofar as coercing compliance is concerned, I have taken into account that the length of sentence should be sufficient to encourage that compliance, but not so long as to be disproportionate. Nevertheless, because the term assumes that Mr Whit will not have taken the last opportunity that the Court has given him to comply with the Orders (and thereby again not fulfil assurances of compliance given to the Court), the length of the sentence must be a proper punishment.

However, in favour of Mr Whit, I have taken into account in determining the length of any such sentence his age and personal circumstances as set out in his affidavit reproduced in paragraph [62] above. I have also taken into account the overall need for the sentence to be proportionate in the context of all of the matters set out in [81] to [92] above.

For these reasons, I determined that a sentence of one year was appropriate. Although this is not a dispositive consideration, I also gave some weight to the fact that this was the same order of the period of delay which Mr Whit’s conduct had imposed upon the orderly progress of the litigation. As I have already said, given Mr Whit’s second affidavit set out in [63] above, I was satisfied that notwithstanding his failure to comply with his previous assurance in the face of the Court that he would comply, there was a proper basis for the Court to offer him one last chance by imposing the sentence on terms that it be suspended if he complied with the Orders by 24 March 2023, being 15 days after the hearing.

Finally, at the conclusion of the hearing, I asked both counsel whether they wished to make any submission about whether the one year sentence I proposed was or was not within a range appropriate for an offence of this kind. Mr Emmett SC responded that, in his submission, the one year sentence was within an appropriate range. Mr Spohr did not wish to be heard against that proposition.

I made this request to counsel conscious, as I infer were they based on the submissions they then made, of the law in the strictly criminal setting as laid down by the High Court in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 (Barbaro). The effect of that decision in this context would have been to prohibit an inquiry or submissions of the kind to which I have just referred. However, this again is an example of where the different juridical nature of contempt, including criminal contempt, means an analogy should not be drawn too readily between a criminal prosecution and a case such as the present.

A better analogy, if one is required, is with the decision of the High Court in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 to the effect that in a civil penalty proceeding a court can receive submissions as to what would be an appropriate pecuniary penalty. A proceeding for a civil penalty is a closer, but still not perfect, analogy to a contempt action than a criminal prosecution.

Barbaro was itself considered by the High Court in CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9, where the Court (at [38] per French CJ and Gageler J and [64] per Kiefel, Bell and Keane JJ) observed that in criminal matters the Crown nevertheless has an obligation to assist the court to avoid appealable error in sentencing. As a matter of both practice and policy, I consider that approach to be applicable in contempt proceedings brought by the Prothonotary as an officer of the Court. As a practical matter, sentencing for contempt has neither the corpus of authority nor the daily lived experience of the criminal jurisdiction, such that the assistance of the Prothonotary on the question of appropriate sentence is of particular assistance.

The orders set out in [4] above were made accordingly.

Costs were reserved because I was informed that the submissions of the Prothonotary as to costs would depend on whether or not the sentence was suspended.