Young v Smith (No 3)

1. [1]

   HIS HONOUR: By Summons filed 7 September 2015, the applicant, Joanne Elizabeth Young, charges the respondent, Josephine Aapa Smith, with contempt and seeks orders that the respondent be found guilty of contempt and be punished for disobeying an order of the Court.

2. [2]

   On 8 September 2015, the applicant filed an Amended Summons and on 4 February 2016, the applicant moved the Court for a further amendment in accordance with a document entitled Further Amended Summons.

The Amendment to Summons

1. [3]

   The filing and reliance upon the amendment moved on 4 February 2016 was opposed by the Contemnor. The basis for that opposition was that the Supreme Court Rules 1970, by Pt 55 r 7, provide that the statement of charge, specifying the contempt, shall be subscribed to, or filed with, the Notice of Motion alleging contempt.

2. [4]

   As articulated, the submission of the Contemnor is that the Court does not have jurisdiction to amend the charge. No submission is made that the Contemnor was not aware of the proposed amendment, nor unable to deal with the charge as amended. No adjournment was sought or foreshadowed should an amendment be made to the charge.

3. [5]

   The Court, on 4 February 2016, allowed the amendment. The Further Amended Summons particularised the contempt in more detail than had previously been done.

4. [6]

   The terms of Pt 55 r 7 of the Supreme Court Rules (“SCR”) must be read in the context of the rules as a whole. While the terms of SCR Pt 55 r 7 prevail, notwithstanding any consistency with the Uniform Civil Procedure Rules 2005 (“UCPR”), the terms of the Supreme Court Rules must be read as a whole, as must the terms of the Uniform Civil Procedure Rules.

5. [7]

   Ordinarily the rulemaking power conferred by s 124 of the Supreme Court Act 1970 does not entitle the Rules Committee to make rules inconsistent with the Uniform Civil Procedure Rules. The only exceptions are those for which express provision is made. By operation of UCPR r 1.7, read in conjunction with Schedule 2, SCR Pt 55 r 7 prevails over the Uniform Civil Procedure Rules to the extent of any inconsistency.

6. [8]

   In my view, there is no inconsistency between the requirement to have subscribed to the Summons or Notice of Motion and filed with the Summons or Notice of Motion a statement specifying the contempt and the powers otherwise available to amend documents. If that were not the case, then the Court would be able, in any event, to dispense with the requirement in Pt 55 r 7 in accordance with the provisions of s 14 of the Civil Procedure Act 2005. Contempt proceedings are civil, even though the punishment and “crime” may not be (depending on the nature of the contempt). In this case, the contempt involves an alleged disobedience of, or failure to comply with, an injunction and would therefore involve civil proceedings. [1]

7. [9]

   The purpose of SCR Pt 55 r 7 is to provide the person concerned with due notice and to accord a proper opportunity to answer the charge. It is a fundamental of the rules of procedural fairness and/or natural justice that a person charged with an offence, even under the common law, or especially under the common law, is entitled to a reasonable opportunity to prepare and to present her or his case (including to test the case against her or him). [2]

8. [10]

   As earlier stated, the purpose of the provisions of SCR Pt 55 r 7 is to ensure a party charged with contempt is in a position to answer the charge. The Rule is an express particular of the rules of procedural fairness.

9. [11]

   In this case, the Contemnor was, if the amendment were allowed, in a position to meet the charge as amended. Allowing the amendment would not defeat the purpose of the Rule. The power to punish contempt, committed otherwise than in the face of the court, is one of the hallmarks of a superior court of record. [3] As such, the power to punish contempt, committed otherwise than in the face of the court, is reposed in civil courts that otherwise do not exercise a criminal jurisdiction.

10. [12]

    The original jurisdiction for contempt arose out of actions for damages for defamatory words. [4] As such the proceedings are historically civil, even though the result may, in the case of a contumacious or contumelious contempt, be criminal and even though the applicant must prove the case against the Contemnor on the highest standard of beyond reasonable doubt.

11. [13]

    The provisions of the Civil Procedure Act apply to proceedings for contempt of court and the Court has the power, subject always to the rules of procedural fairness, to waive compliance with the rules and to allow the amendment of documents. Given the absence of any prejudice asserted by the Contemnor and no lesser capacity to prepare or to present her case (or test the applicant’s case), the amendment proposed in the Further Amended Summons was allowed.

12. [14]

    Further, even if the criminal procedure were to apply, a prosecutor is permitted, subject to the leave of the Court in which procedural fairness is an essential factor, to amend a charge in order to provide more or different particulars. [5]

History of Proceedings

1. [15]

   It is appropriate for the Court to set out a history of the proceedings that gave rise to the judgments of which it is said the Contemnor is in contempt and to the proceedings for contempt. On one view at least, it is unnecessary. I set out the history only for the purpose of background.

2. [16]

   Ultimately the contempt will arise, or it will not, regardless of the history. Nevertheless, the history is necessary as background, in order to understand how the current proceedings came before the Court.

3. [17]

   The applicant, Ms Young, married Mr Young in 1992 and they separated in 1999. She was Mr Young’s second wife. The Contemnor, Ms Smith, is (or was at all relevant times) Mr Young’s de facto partner. She has been in that position since about 1999.

4. [18]

   At the time that Mr Young and Ms Smith commenced their de facto relationship, Mr Young’s assets consisted of 50% shareholding in a number of companies (the identities of which, presently, are irrelevant).

5. [19]

   In or about 2001 an agreement was executed which recited the contemplation of Mr Young and the Contemnor as to the purchase of residential property for the purpose of it being their residence, that the residential property purchased by them for their joint use, shall be the property of the Contemnor, regardless of the identity of the persons on the registered title.

6. [20]

   The applicant, Mr Young’s second wife, was the manager of a hotel owned by one of the companies of which she and Mr Young were each half owners. In July 2006, Mr Young removed the applicant from the hotel premises and made allegations that she had misappropriated monies belonging to the hotel. Those charges were all dismissed.

7. [21]

   The applicant brought proceedings against Mr Young for malicious prosecution and/or damages for related or similar causes of action. There were also proceedings relating to a property settlement claim that had been cross-vested from the Family Court of Australia to this Court.

8. [22]

   In May 2007, Mr Young and the Contemnor purported to enter into a contract for the purchase of a property at Pirrama Road in Pyrmont (“the Property”). They purported to be joint tenants. The purchase price was something over $4.5 million. The transaction was completed in or about July 2008 and funded through a loan extended to the company that owned the hotel, with Mr Young and the Contemnor each granting the lender a mortgage and guarantee.

9. [23]

   The proceedings for the property settlement and for malicious prosecution were heard by the Court and orders made on liability, with separate questions being referred to an Associate Justice. As a consequence of that referral, Harrison AsJ determined, on the basis of proceedings before her, that Mr Young’s assets were valued at or above $9 million. [6]

10. [24]

    On 11 April 2013, the Court ordered that Mr Young pay the applicant $2,663,000 and weekly maintenance. [7] Further, the Court found that Mr Young had deliberately deceived police in relation to the charges based upon allegations made by him and awarded damages for malicious prosecution of $165,000.

11. [25]

    On 23 September 2013, the residential premises said to be registered in the name of Mr Young and the Contemnor, and described above, were transferred to the Contemnor. Further, the hotel from which the applicant was excluded was sold in May 2014 and the company that owned it put into liquidation. The Liquidator realised its assets which included a car park adjacent to the hotel.

12. [26]

    On 5 June 2014 Bankruptcy Notice 172322 was issued at the instigation of the applicant in relation to the judgment debt. The Bankruptcy Notice could not be served.

13. [27]

    On 7 August 2014, the Contemnor, acting under a Power of Attorney on behalf of Mr Young, executed a Memorandum of Transfer between Mr Young and herself in relation to Mr Young’s interest in the Property. The purported consideration for the transfer was $1.8 million, which was never paid.

14. [28]

    On 29 August 2014, the applicant made an ex parte application to this Court for freezing orders. The Court made orders restraining Mr Young and the Contemnor from dealing with any of their assets, including the Property, until further order of the Court. That order issued on 29 August 2014. The judge who issued the orders was Bellew J. The terms of that order will be recited later in these reasons.

15. [29]

    On 1 September 2014, Mr Young initiated an application under s 55(2) of the Bankruptcy Act 1966 (Cth) in which he stated that his interest in the property was worth 50 per cent of $5.5 million and was sold for $1.8 million. The document, in the relevant column, or entry, indicated that Mr Young had received no money for that share or that transfer. Mr Young also identified the Contemnor as a secured creditor in or to the sum of approximately $4 million. Mr Young was declared bankrupt on 2 September 2014, on his own application.

16. [30]

    On 4 September 2014, the Court issued orders, the terms of which will be repeated later in these reasons.

17. [31]

    On 2 February 2015, the mortgage, to which reference is made above, was executed and a sum of $5.8 million was advanced

18. [32]

    On 15 April 2015, the Court (Sackar J) issued reasons for judgment dealing with the ownership of the property. On 5 May 2015, orders issued purporting to give effect to the reasons for judgment.

19. [33]

    On 6 June 2015, some of the orders that issued on 5 May 2015 were set aside, declarations were made on the ownership, the effect of which was that, subject to a registered mortgage, the Contemnor held the Property subject to one half share on trust for Mr Young, but not so as to interfere with any interest of the applicant.

Orders and Proceedings on 29 August and 4 September 2014

1. [34]

   As earlier stated, ex parte interlocutory orders were sought in relation to the dealings with the property. Those proceedings were heard by Bellew J at which time the Court issued the following orders:

2. [35]

   On 4 September 2014, pursuant to the direction issued in [7] on 29 August 2014, recited above, the matter was heard by the Court in its Duty List. On that day, the Contemnor was represented by Mr Heath and Ms Petrolo of Counsel who, on behalf of their client, made application on Motion, filed in Court, by leave of the Court, to discharge the orders of Bellew J. For that purpose the Contemnor relied on an Affidavit of David Baker dated 4 September 2014.

3. [36]

   The Motion and Affidavit in support sought orders of the Court vacating the orders of 29 August 2014 and, in lieu thereof, providing to the Court an undertaking not to deal with the whole of the Property pending further order of the Court and the prosecution of the proceedings. The applicant sought orders in a document, Short Minutes of Order, handed to the Court.

4. [37]

   After argument, the Court announced the following orders:

5. [38]

   The foregoing orders were announced in Court on 4 September 2014. For reasons which are inexplicable, the following orders were entered:

6. [39]

   At the time that the orders were announced in Court, on 4 September 2014, the Contemnor was represented before the Court. Counsel for the Contemnor sought an explanation of the orders and was told that Order 4 in the form arising following the proceedings before Bellew J was vacated and “otherwise the orders of Bellew J stand”.

7. [40]

   Reasons for the orders were reserved and on or before 28 October 2014 reasons for judgment issued. [8] The reasons for judgment recited, on the coversheet thereof, the orders in the following terms:

The Terms of the Orders

1. [41]

   The foregoing recitation shows a difference in the wording of the orders of the Court on 4 September 2014, as entered, as against the orders pronounced in Court. The orders pronounced in Court accord, with insignificant changes, with the orders contained in the reasons for judgment and published with the reasons for judgment. The Contemnor does not suggest that there is any, or any substantial, difference between the orders as pronounced, the orders as entered, or the orders as published with the reasons for judgment and eschewed any argument on that basis.

2. [42]

   It is therefore unnecessary to deal with any issue that may arise from the alteration in wording.

The Charge

1. [43]

   The applicant, by her Further Amended Summons, sought the following orders:

2. [44]

   As can be seen from the foregoing, the Summons seeks that the Contemnor be found guilty of contempt of the Court in that she failed to comply with the orders of 4 September 2014 restraining her from “disposing of, dealing with, encumbering or diminishing the value of the Property”. The charge is that contained in paragraph 6 of the foregoing recited terms of the Summons.

3. [45]

   There are a number of aspects to the charge. In no particular order they are:

4. [46]

   Further, in order to prove the contempt, the applicant must prove that the Contemnor was aware of the orders and understood them sufficiently to realise that there was a restraint of the kind alleged.

5. [47]

   Each element, including the Contemnor’s state of mind, must be proved beyond reasonable doubt. Some of the foregoing aspects overlap and will be dealt with together.

The Mortgage

1. [48]

   The mortgage effected on the Property at Wharf 8, Level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont (Title Reference: 14/SP80052) was executed on 2 February 2015. The mortgage documents are before the Court.

2. [49]

   The mortgage is a mortgage signed over the signature of the mortgagor, being the Contemnor. It appears to be the same signature as that appearing in Affidavits of the Contemnor filed in proceedings. The signature is witnessed in circumstances where the witness is required to have known the person executing the document for more than 12 months or have proof of identity.

3. [50]

   Moreover, the mortgage was the subject of proceedings and orders of this Court in which, at least inferentially, the Contemnor consented to the validity of the mortgage at least in relation to her interests. The mortgage also resulted in the provision of monies by the mortgagee to the Contemnor or in her interests.

4. [51]

   The extent of the circumstantial evidence available that it was the Contemnor, who executed the mortgage, is overwhelming. Each of those facts or matters, like strands in the cable, are, together with the signature and witnessing of the signature, sufficient to prove, beyond reasonable doubt, that the Contemnor has signed and executed the mortgage.

5. [52]

   The mortgage encumbers the Property and the Contemnor’s interest in the Property (or purported interest in the Property) as well as, until orders of the Court were made rectifying it, Mr Young’s interests in the Property. Whoever’s interest was encumbered, the Contemnor, being the respondent in proceedings 2008/286909 was “restrained from … dealing with, encumbering, or diminishing the value of [The Property] pending further order of the Court”.

6. [53]

   The mortgage was executed on 2 February 2015. For the same reasons already given for the finding that the Contemnor was the person who executed the mortgage, I find that that date was the date on which the Property was so affected.

Was the Contemnor Aware of the Orders?

1. [54]

   The Orders made by the Court on 29 August 2014 were made ex parte. There was no representation before the Court on behalf of the Contemnor. As earlier stated, when orders were made by the Court on 4 September 2014, the Contemnor was represented before the Court. There is no evidence as to whether the Contemnor was present at the proceedings on 4 September 2014.

2. [55]

   As a consequence of the foregoing, it cannot be said that on 29 August 2014 the Contemnor was aware of the orders made by Bellew J. In order to be grounds for the finding of contempt, the knowledge of those orders would have to be proved beyond reasonable doubt.

3. [56]

   Nevertheless, on 4 September 2014, the Contemnor, through her legal representatives, moved the Court for orders vacating the orders of Bellew J in relation to the dealings with the Property and, in lieu thereof, an order to substitute an undertaking to the Court not to deal with the said Property.

4. [57]

   There are two possibilities. First, it is possible that the legal representatives were in breach of their duty to the Court and made the application without instructions. Secondly, it is possible that the legal representatives obtained instructions and made the application as a consequence of those instructions.

5. [58]

   In Mead v Mead, [9] the High Court [10] made clear that it was not error for a judge, in dealing with a contempt of court, to draw an inference from the conduct of a contemnor that “informed instructions” must have been given. In those proceedings, orders had been made by a Judicial Registrar and continued by a judge of the Family Court of Australia. Those orders were the subject of further applications from which the judicial officer dealing with the contempt drew the inference that the contemnor in those proceedings was aware of the orders and had given informed instructions as to those subsequent applications.

6. [59]

   The High Court said:

7. [60]

   Likewise, here, the application made by the Contemnor through her legal representatives was an application made in circumstances where the nature of the order was not difficult to comprehend; where an undertaking was proffered to replace the order in question; the Contemnor has extensive property interests; the order was a general freezing order that prevented the Contemnor from alienating the Property until further order of the Court; and these were further proceedings between the parties seeking a variation to those orders. Just as the Family Court, [12] at first instance, held, it is inconceivable, in the absence of any suggestion to that effect, that the application made by the Contemnor to the Court was made without the Contemnor’s informed instructions to make them, the Contemnor must have been aware of the effect of the orders of the Court, issued on 29 August 2014, in order to provide the instructions for those orders to be replaced by an undertaking of that kind.

8. [61]

   As to the orders issued on 4 September 2014, on 28 October 2014 the Contemnor’s legal representatives sent the Contemnor and others, at least one of whom was not the Contemnor or part of the Contemnor’s legal team, an email [13] attaching the reasons for judgment for the orders of 4 September 2014, including the Cover Sheet, which is in the form of the orders recited above. [14] Its terms recite that order 4 of the orders of Bellew J on 29 August 2014 are vacated and that, otherwise, the orders of Bellew J remain in force.

9. [62]

   Again, those orders are not difficult to understand. It is inconceivable in the circumstances of these proceedings that the Contemnor was unaware that the Court had refused her application to vacate all of the orders issued by the Court on 29 August 2014 and replace them with an undertaking. It is also inconceivable that the Contemnor was unaware of the orders made on 4 September 2014, or their effect.

10. [63]

    As a consequence of the foregoing, there is an irrefragable inference that the Contemnor was aware of the effect, and understood the effect, of the orders of the Court made on 29 August 2014 and 4 September 2014. In drawing that inference, it is no part of the Court’s reasoning process to draw on the inference available arising from the unique circumstances of material available and known only to a defendant in criminal proceedings. [15]

11. [64]

    The Court, in this judgment, is not drawing an inference from the Contemnor’s failure to give evidence. [16] Contempt proceedings being proceedings for a criminal penalty ought to leave the drawing of such an inference to the extraordinary circumstances such as those involved in Weissensteiner.

12. [65]

    However, the drawing of an inference in all proceedings, civil and criminal, is a matter of common sense. [17]

13. [66]

    In Fabre v Arenales, [18] the Court of Appeal said:

14. [67]

    The Court of Appeal were there referring to the passage in the High Court judgment in Jones v Dunkel. [20] Much earlier, in Bell v Thompson, [21] Sir Frederick Jordan CJ said:

15. [68]

    Two years later, Sir Frederick Jordan CJ discussed, in terms prescient of the later judgments in Jones v Dunkel and RPS v R, the issue of the drawing of inferences. The Chief Justice said:

16. [69]

    As his Honour the Chief Justice makes clear in the foregoing passage, inferences of probability may range from a faint probability to such practical certainty as would justify a conviction in a criminal prosecution. In the circumstances of this case, the application by the Contemnor to the Court on 4 September 2014 allows the Court to draw an inference that the orders of Bellew J were known and understood as at 4 September 2014 (or the effect thereof was known and understood) with the degree of certainty that, if this be an element of contempt (which, in my view, it is) would allow the element to be proved beyond reasonable doubt.

17. [70]

    Also proved with certainty is the fact that the orders of the Court issued on 4 September 2014 were sent to the Contemnor, in circumstances where the Contemnor had a significant interest in the effect of those orders and their variation. It is possible that the Contemnor did not read the email sent to her. But, in the circumstances of these proceedings and the proceedings in 2014, such a possibility is an unreasonable one.

18. [71]

    Moreover, it is equally irrefragable that the Contemnor understood the effect of the orders of the Court that were in place prior to 2 February 2015, the date on which she executed the mortgage that dealt with or encumbered the property. The effect of those findings is that the Contemnor well understood the effect of the Court’s orders and engaged in conduct in defiance of them.

The Significance of the Identity of the Judge Issuing the Orders

1. [72]

   As has been stated, subject to statutory exceptions, the common law requires “punctilious compliance” with the requirements of criminal procedure, which “is one of the last areas of the law in which a technical point is still a good point”. [24] Nevertheless, there has been a “loosening of the strictness” that has hitherto applied, even in criminal procedures. [25] In Janceski, the Court was dealing with whether jurisdiction had validly been invoked by the preferring of a valid indictment. A statutory condition for a valid indictment was that it was signed by an authorised person.

2. [73]

   One of the areas in which the strictness of criminal procedure has been loosened is the issue of particulars of the offence committed, as against the elements of that offence. The technical point raised by the Contemnor is that the conduct said to be in breach of an order of the Court, if proved, was conduct in breach of the orders issued by Bellew J on 29 August 2014 and not the orders issued on 4 September 2014. Since the charge refers to the orders issued on 4 September 2014, the Contemnor submits that she is not guilty of the contempt alleged.

3. [74]

   As earlier stated, the fact, if it be the fact, that the issue is a technical one does not deprive the point of merit, particularly in relation to proceedings for proof of criminal guilt. [26] It is necessary to examine the terms of the charge. It is also necessary to determine the status of an order and its effect, when issued by one judicial officer, as distinct from another.

4. [75]

   The fundamental principle applying to the jurisdiction of a court is that, historically, a court, particularly a superior court of record, exercised its jurisdiction en banc. As the High Court has said: [27]

5. [76]

   While the High Court in Re Jarman divided in its opinion, its different opinions were based, not on the fundamental principle recited above, but on the effect of the statutory provisions with which the High Court was there concerned and which may have, on the minority view, overtaken the common law otherwise applicable.

6. [77]

   As a consequence of the foregoing, whether orders were made by Bellew J or by another member of the Court, the orders are orders of the Court. The identity of the judicial officer is irrelevant. A single judge of this Court exercises jurisdiction because of the effect of s 40 of the Supreme Court Act 1970.

7. [78]

   As is obvious from the foregoing, the Court of Appeal, for example, is the Supreme Court exercising the jurisdiction conferred. The jurisdiction of the Court of Appeal to hear an appeal from a single judge of the Supreme Court does not render any single judge any less the Court. Nor does it render the Court of Appeal a different Court. The Court of Appeal exercises the jurisdiction of the Supreme Court of New South Wales and is, in the exercise of that jurisdiction, comprised in accordance with the requirements of any statute and regulation, the Supreme Court. It is for that reason that ceremonial occasions, for example the swearing in of a judge, involve the entire Court, sitting en banc, not just the Court of Appeal, the Equity Division or the Common Law Division. [29]

8. [79]

   The foregoing establishes that whenever a judicial officer (or more than one of them) exercises the jurisdiction of the Court, whether under the provisions of s 40 of the Supreme Court Act or otherwise, it is the Court that speaks; not the judicial officer. The judicial officer is the Court. Thus, whether orders are issued by Bellew J or by another judicial officer, the orders are the orders of the Court and the identity of the judicial officer is irrelevant.

9. [80]

   Nevertheless, orders of the Court issued on 29 August 2014 and orders of the Court issued on 4 September 2014. The charge is recited above. The Summons charges that the Contemnor is “guilty of contempt of the Court by failing to comply with the order made by Justice Rothman on 4 September 2014” (see above).

10. [81]

    Plainly, on the findings already made, the Contemnor did, on or about 2 February 2015, deal with the Property by encumbering it by means of a mortgage executed by her on or about 2 February 2015. What then is the effect of specifying that such conduct is a failure to comply “with the order made by Justice Rothman on 4 September 2014”?

The Requirements of a Charge

1. [82]

   It is necessary to deal with that which is required in laying a charge. The High Court, [30] in dealing with “an information” said:

2. [83]

   The High Court [32] reaffirmed that there was no technical verbal formula which could be applied to determine whether an information (or in this case a charge) sufficiently identified the essential ingredients of the alleged offence. The purpose of the essential ingredients is to identify the time, place and manner of the Contemnor’s acts or omissions that gave rise to the contempt and the orders of the Court (and their effect) of which the Contemnor is said to be in contempt.

3. [84]

   In the charge that is presently before the Court, the Contemnor knows, from the terms of that charge, the effect of the orders of the Court and the conduct in which she is alleged to have engaged in order to render her in contempt. The difficulty is that the particulars provided by the applicant specify that the orders are those of the Court on 4 September 2014.

4. [85]

   In my view, the specification of the orders having been issued on 4 September 2014 by a particular judicial officer is not an essential ingredient of the alleged offence. The conduct that is alleged specifies, with particularity: the date on which the conduct occurred (2 February 2015); that the conduct involved encumbering the Property and the details of that encumbrance as a dealing with the Property; that the Contemnor was restrained by order of the Court from dealing with or encumbering the Property; and that the said conduct, in breach of the orders of the Court, was a contempt. On the findings already made, as already stated, there was contempt.

5. [86]

   The fundamental question raised by the “technical point” is whether the identity of the judicial officer and the date on which the orders were made is an “essential ingredient” of the charge so as to otherwise counteract the provision and specification of the time, place and manner of the Contemnor’s acts or omissions. Or, alternatively, does it provide “fair information and reasonable particularity as to the nature of the offence charged”? [33]

6. [87]

   Once the applicant charges the effect of the orders and the precise conduct which is said to be in breach of, or does not comply with, orders of the Court, the identity of the judicial officer and the date upon which the order of the Court issued does not affect the validity of the charge and is a particular that the applicant does not need to prove. The applicant needs to prove, beyond reasonable doubt, that orders of the Court operated; the conduct that is said to be in breach of an order of the Court; that the Contemnor was aware of the effect of Court orders enjoining her from certain conduct; and that the conduct specified was a breach of the orders of the Court, as the Contemnor understood them at the time that the conduct occurred. All of the foregoing is required to be proved beyond reasonable doubt.

7. [88]

   Thus, assuming, without accepting, for the purpose of this discussion that the “technical point” is correct, namely, that the orders specified and particularised in the charge are the wrong orders, the contempt alleged has been proved, beyond reasonable doubt. It is a contempt committed by the Contemnor dealing with the land by encumbering it, as alleged, on 2 February 2015, in circumstances where the Contemnor was aware that the Court had ordered that she not deal with or encumber the Property.

Whose Orders have been breached?

1. [89]

   I have not as yet dealt with whether the “technical point” is correct, as distinct from such as to prevent a finding of guilt. The circumstances of the issuing of the orders has already been recited. The circumstances of the issuing of these orders is similar to, if not identical to, the circumstances that pertained in Mead v Mead. As earlier stated, the facts in Mead v Mead were that a Judicial Registrar, on 30 August 1999, issued orders. The facts recited by Gleeson CJ in the reasons for judgment need reiterating. The Chief Justice said: [34]

2. [90]

   The Contemnor disavows any reliance upon the difference in wording between the orders entered and the orders recited with the reasons for decision. The orders recited with the reasons for decision provide in Order (2) that ‘otherwise the orders of Bellew J remain in force’. That was a judgment issued on 4 September 2014 by the Court, constituted by Rothman J, and announced at that time.

3. [91]

   There can be no difference in meaning or effect between an order that the orders of Bellew J “remain in force” and an order that the orders made “continue” or that “I continue the orders”. As a consequence, in accordance with the analysis of the High Court in Mead v Mead, the effective orders are those issued on 4 September 2014 and not the earlier orders of Bellew J. [35] Indeed, Gleeson CJ recites that

4. [92]

   The Chief Justice, with whom the other members of the Court agreed, makes clear that an order continuing the orders earlier made is the operative order for the purposes of any contempt proceedings. Likewise, in my view, the operative order is the order that the orders of Bellew J remain in force. It is that order of which the Contemnor is in contempt.

Conclusion

1. [93]

   If the latter analysis be incorrect, the identity of the judicial officer and the date upon which the order was made is a particular that does not affect the guilt of the Contemnor for the contempt charged, namely, the stated dealing with the Property, in the manner particularised and on the date particularised, in breach of the orders of the Court restraining such conduct.

2. [94]

   For the foregoing reasons, the Contemnor is guilty of contempt of the orders of the Court as charged in that on 2 February 2015 the Contemnor breached or otherwise failed to comply with an order of the Court restraining her from dealing with or encumbering the said Property.

3. [95]

   As agreed, the issue of punishment will be dealt with separately from the issue of guilt and after the parties have been given a reasonable opportunity to prepare and to present any material in relation thereto.

4. [96]

   The Court issues the following judgment:

   1. (1)

      The defendant, Josephine Aapa Smith, is guilty of Contempt of Court in that on 2 February 2015 the defendant dealt with property located at Wharf 8, level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont – Title reference 14/SP80052, by encumbering it by means of a mortgage in favour of Westpac Banking Corporation in circumstances where the Court had, to her knowledge, restrained such conduct in relation to that property.

   2. (2)

      These proceedings shall be adjourned to hear evidence and/or submissions on penalty on a date to be fixed after discussion with counsel.