Novelly v Tamqia Pty Ltd (No 2)

Litigants are generally entitled to bring before the Court any dispute which it has jurisdiction to determine. However, common sense dictates that not every dispute should be litigated. The potent combination of personal animosity and financial resources is the enemy of common sense. Regrettably for all concerned, it appears that the parties in this case have chosen to demonstrate the truth of that proposition not just once, but now for a second time.

The plaintiff (Mr Novelly) leases a penthouse apartment in central Sydney (the Premises) from the first defendant, Tamqia Pty Ltd (Tamqia). The second defendant (Ms Bolton) is the controlling mind of Tamqia. In resolving the original dispute between the parties, Peden J concluded that she did “not consider that the parties ought to have required the Court to determine the trivial matters that were finally pressed”: Novelly v Tamqia Pty Ltd [2022] NSWSC 1607 (the First Judgment) at [60]. Notwithstanding that there is always a public interest element in any prosecution for contempt, a similar degree of triviality could be said to characterise the circumstances which inform Mr Novelly’s contempt motion which is the subject of these reasons.

The relevant events also display a lack of understanding on the part of both parties that a failure to comply with undertakings given to the Court (even if those undertakings were given pursuant to an inter partes settlement agreement) must be promptly referred to the Court and not become the subject of protracted correspondence between the parties. Had that course been followed in this case, there is every reason to think that the present motion would have been avoided. Filing a motion for contempt of an undertaking given to the Court should be a last, rather than first, step.

The dispute before Peden J in these proceedings was in part resolved by undertakings given to the Court by Tamqia and Ms Bolton. In these reasons, I refer to “undertakings” because there is clearly more than one, contrary to an argument raised on behalf of the defendants which I consider at [86] and following below.

One of those undertakings was for the defendants to empty (primarily) a storeroom in the Premises. That was not done within the time limited by the undertaking. Some efforts have been made to clear out the storeroom since the time for compliance passed, but that task has not yet been completed.

Other undertakings concerned the defendants providing, or taking other steps, in relation to keys for the Premises within a specified time. Some of these things were not done in the specified time and compliance with those undertakings has been overtaken by Mr Novelly changing locks and obtaining new keys.

By a further amended notice of motion which I gave leave (unopposed) to Mr Novelly to file, relief is sought against Tamqia and Ms Bolton for contempt of court for the alleged breaches of the undertakings. As is required by Pt 55 r 7 of the Supreme Court Rules 1970 (NSW) (SCR), the motion attaches statements of charge against the defendants. These are reproduced in Schedule A to these reasons. One aspect of those charges has become central to the resolution of Mr Novelly’s motion: the charges expressly particularise (a more apt expression than “plead”) that each of the asserted breaches was contumacious.

Mr Novelly’s evidence establishes beyond reasonable doubt that as a matter of fact the defendants did not comply with some of the undertakings. The defendants did not go into evidence on the hearing of the motion. Nor was any explanation or apology for the non-compliances advanced. Instead, as the defendants were entitled to do, they have sought to demonstrate why Mr Novelly has failed to make out the contempts with which they were charged.

Mr Novelly’s motion will be dismissed. The reasons for that may be summarised as follows. The defendants’ arguments against any finding of contempt based on the construction of the undertakings and the nature of the charges against them, are rejected. To the extent it may be relevant should the matter go further, the Court is satisfied beyond reasonable doubt that the defendants have committed a civil contempt by failing to comply with some (but not all) of the undertakings.

However, the Court also rejects Mr Novelly’s contention that the defendants’ breaches were contumelious (and therefore constitute criminal contempts). Applications for contempt are procedurally strict and protective of the procedural rights of alleged contemnors. Because the breaches alleged in the motion were particularised as contumelious, that was the only case the defendants had to meet. It follows that the motion must be dismissed because the allegations of contumelious conduct have not been made out beyond reasonable doubt.

I was informed at the conclusion of the hearing that while the storeroom which was the focus of most of the argument had substantially been cleared out, some items remained. I urged the parties to see if they could resolve matters by arranging for the emptying of the storeroom to be completed and otherwise endeavour to resolve their dispute on the motion. To that end, I indicated that I would refrain from embarking upon writing a judgment for one week. However, after that time had elapsed, an enquiry by my Associate to the parties yielded the result that the parties remained in dispute and the Court would be required to adjudicate the motion.

Mr P Barham of Counsel appeared for Mr Novelly. Mr D Lloyd of Senior Counsel with Ms L Moussa of Counsel represented Tamqia and Ms Bolton.

Peden J delivered the First Judgment on 24 November 2022 after a three day hearing conducted earlier that month. Her Honour dismissed Mr Novelly’s claim for specific performance and ordered each party to pay their costs.

The relevant parts of the First Judgment are:

The essential facts were not dispute. With certain important exceptions which I address by specific findings in what follows, they consisted of the fact of email exchanges between the solicitors or their respective employees, being Mr J de Mestre for the defendants and Mr M Fraser for Mr Novelly. Insofar as the solicitors’ correspondence purported to make assertions of fact whether on instructions or otherwise, I have not treated those assertions as proving the truth of the assertions. However, I have taken into account the fact of the correspondence and the assertions made therein (rather than their truth) on the question of whether the defendants’ conduct was contumelious. Mr Novelly and another of his witnesses, Mr Terence Wong (a law graduate who is a friend of Mr Novelly), were briefly cross-examined. Importantly, Mr Novelly was not cross-examined on the matters set out in [30] below. The other deponents in Mr Novelly’s case, all of whose evidence I have taken into account, were not required for cross-examination.

At 5.09 pm and 5.11 pm on the last day of the hearing before Peden J (9 November 2022), her Honour’s chambers received emails setting out and giving the undertakings which had been agreed between the parties and which are accepted and recorded in the First Judgment at [54] reproduced above.

After Peden J published the First Judgment on 24 November 2022, by which her Honour accepted the parties’ undertakings, there is no evidence of communication between the parties until 7 December 2022. On that day, Mr de Mestre wrote to Mr Fraser by email:

On 12 December 2022, Mr Fraser wrote to Mr de Mestre, including:

Contrary to the assertions made in the letter reproduced in the preceding paragraph and in further correspondence reproduced in what follows, the parties now accept that time for compliance with the undertakings ran from when they were accepted in the First Judgment on 24 November 2022 and not from when they were first emailed to the Court on 9 November 2022. The parties also accepted that this misapprehension was irrelevant for present purposes, because the date to which the letter purported to extend the deadline for compliance – 22 December 2022 – was 28 days after the delivery of First Judgment. It was therefore common ground before me that the undertakings were required to be complied with no later than 22 December 2022.

On 13 December 2022, an employee of Mr de Mestre emailed Mr Fraser:

On 16 December 2022, Mr Fraser replied to Mr de Mestre’s firm by email:

On 19 December 2022, Mr de Mestre emailed Mr Fraser:

On 20 December 2022, Mr Fraser emailed Mr de Mestre:

Mr de Mestre sent this reply later that day:

There was no reply to Mr de Mestre’s email reproduced in the preceding paragraph.

At 5:34pm on 22 December 2022 (which, as I have recorded, the parties now accept was the last day for compliance by the defendants with the undertakings), Mr Fraser wrote to Mr de Mestre, including:

Understandably given the time of year, there was no reply to Mr Fraser’s letter reproduced in the previous paragraph until 3 January 2023, when Mr de Mestre replied:

Rather than replying to Mr de Mestre’s email of 3 January 2023, the next step on behalf of Mr Novelly was the filing of the notice of motion for contempt on 13 January 2023. Despite attempts at personal service of the motion, Mr de Mestre did not become aware of the motion until he received an automatically generated email from the Court on 30 January 2023. The motion and affidavit in support were ultimately served attached to an email from Mr Fraser to Mr de Mestre on 2 February 2023.

Notwithstanding that the possibility of an action for contempt had been foreshadowed in Mr Fraser’s letter of 22 December 2022 (see [26] above) three matters must be observed:

On 13 January 2023, Mr Novelly swore an affidavit in which he deposed to certain matters which are fundamental to proof of his contempt case. He was not cross-examined on those matters and the Court accepts his evidence as truthful and finds accordingly:

On 17 January 2023 at 4:31PM, Mr de Mestre wrote to Mr Fraser:

This apparently positive development was promptly dismissed. Mr Fraser replied by email on the same day at 5:08PM:

On Friday, 27 January 2023, Mr Fraser wrote to Mr de Mestre:

This brought a reply the following Monday from Mr de Mestre to Mr Fraser:

On 14 February 2023, Mr Fraser wrote to Mr de Mestre:

On 16 February 2023 Mr de Mestre wrote to Mr Fraser:

On 22 February 2023, Mr Fraser replied to Mr de Mestre:

On 28 February 2023, Mr de Mestre wrote to Mr Fraser:

Then later on 28 February 2023, Mr Fraser replied to Mr de Mestre:

On 2 March 2023, Mr de Mestre replied to Mr Fraser:

A few minutes later on 2 March 2023, Mr Fraser replied to Mr de Mestre:

On 8 March 2023, Mr Fraser wrote to Mr de Mestre:

On 13 March 2023, Mr de Mestre wrote to Mr Fraser:

On 16 March 2023, Mr Fraser wrote to Mr de Mestre:

The parties then ascertained that 7 April was a public holiday and then, after some further correspondence, on 16 March 2023, Mr Fraser wrote to Mr de Mestre:

In an affidavit sworn both on her own behalf and on behalf of Tamqia on 21 March 2023 (the relevant part of which was tendered by Mr Novelly as an admission by the defendants against interest) Ms Novelly deposed “I intend to provide the keys to the Plaintiff after I empty the Storerooms”.

On 28 March 2023, Mr de Mestre wrote to Mr Fraser:

On 14 April 2023, Mr Fraser wrote to Mr de Mestre:

The next relevant correspondence appears to have been on 6 June 2023, when Mr de Mestre’s employee, Ms B Fang, wrote to Mr Fraser:

On 13 June 2023, Mr Fraser replied to Ms Fang:

On 14 June 2023, Mr Fraser wrote to Mr de Mestre’s firm:

Mr de Metre’s firm replied a few minutes later:

I find that on 15 June 2023 Ms Bolton and one other person attended the Premises to be met by Mr Novelly’s friend Mr Wong. It is not necessary for the Court to make findings about what exactly occurred, other than to note as will be apparent from the next correspondence that the events on that day became a matter of further controversy between the parties.

On 21 June 2023, Mr de Mestre’s employed solicitor wrote to Mr Fraser:

On 25 June 2023, there were several emails between the parties which culminated in this email from Mr Fraser to Mr de Mestre which included:

On 26 June 2023, Mr Fraser wrote to Mr de Mestre’s employed solicitor Ms Fang:

One hour later, Mr Fraser sent a further email which included:

On 27 June 2023, Mr de Mestre wrote to Mr Fraser:

On 28 June 2023, Mr Fraser wrote to Mr de Mestre:

Mr de Mestre replied a few minutes later:

On 4 July 2023, Mr Wong facilitated two locksmiths entering the Premises to change a number of locks on the three levels of the Premises, including the lock to the storeroom.

On 14 July 2023, Ms Fang wrote an email to Mr Fraser which included:

Further correspondence between the solicitors on 20 and 21 July 2023 concluded in an email from Mr Fraser to Ms Fang which included:

On 24 July 2023, Ms Fang emailed Mr Fraser:

Later that morning, Mr Fraser responded to Ms Fang:

Further correspondence on 24 and 25 July 2023 included this email from Mr Fraser to Ms Fang on 24 July 2023:

On 25 July 2023, Mr de Mestre responded to Mr Fraser:

On 26 July 2023, Ms Bolton attended the Premises with two men with trolleys. Mr Wong gave them access but matters rapidly deteriorated into a dispute about Mr Wong taking photographs of the internal lift in the Premises. Ms Bolton and the two men left the Premises within minutes. It is not necessary for present purposes for the Court to make any findings other than these about what occurred.

As at the hearing, the Court finds the storeroom was still not completely cleared of items which belonged to one or both of the defendants.

Before going any further, it is necessary to say something about what should have occurred where undertakings had been given to the Court. The parties appeared to be oblivious to the fact that once those undertakings had been given, compliance with those undertakings ceased to be purely a matter for the parties themselves. Had the proper steps been taken immediately and the proceedings promptly relisted, it is likely that the need for the present application would have been avoided.

Where a party gives an undertaking to the Court (the Party Bound) to do something by a specified time, even where the giving of that undertaking is part of an inter partes agreement, compliance with that undertaking becomes a matter under the control of the Court and involves specific obligations to the Court by the Party Bound. Those obligations are quite separate to the rights of the other party to the agreement which gave rise to the giving of the undertaking and include:

To avoid having to return to Court unnecessarily, it is permissible (and usually desirable) for undertakings to the Court, which specify a time for compliance, to include “or as the parties may otherwise agree”. This enables the parties, for example, to extend the time for compliance by agreement. In the absence of such a provision, it is not sufficient for the parties to agree an extension between themselves. The Party Bound must apply to the Court for leave to vary its undertaking. Where that variation is not opposed, a consent minute of order granting leave can be filed in Court to be made by the Registrar or referred to a judge if necessary. There would also be no criticism if the Party Bound approached the chambers of the judge who accepted the undertaking to make the consent order.

What I have set out in the preceding two paragraphs is not just a formal nicety. Undertakings to the Court are solemn obligations and must be treated as such.

Applying these principles to the present case, the defendants should have relisted the proceedings on or shortly after Mr de Mestre’s email of 7 December 2022 and sought to explain why they could not comply with the undertakings and sought consequential relief. If they had failed to do so within two or three days of having notified Mr Novelly that they could not comply, then Mr Novelly should have relisted the matter. On any view, the proceedings could and should have been relisted before a judge before the Court vacation. That the parties should engage in what has in fact occurred is fundamentally misguided in the context of undertakings having been given to the Court.

The statements of charge in respect of both Tamqia and Ms Bolton appended to the further amended notice of motion are set out in the schedule to these reasons . For the purpose of considering the arguments raised, it is convenient again at this point to set out the undertakings. For ease of reference and to avoid repetition, I refer to the various parts of the undertakings by the descriptions which appear below:

There was no dispute between the parties that every element of each of the charges had to be established beyond reasonable doubt and that the onus of proof was on Mr Novelly. Furthermore, I have approached the task on the basis that no inference can be drawn against the defendants by reason of their failure to go into evidence: Markisic & Anor v Keelty [2005] NSWSC 1124 at [51] per Simpson J (as her Honour then was). The relevant parts of the Amended Statement of Claim referred to in paragraphs [77] and [78] are set out in [99] to [101] below.

As to Tamqia:

As to Ms Bolton:

Insofar as the Court has found (subject to the defences and other matters discussed below) that any paragraphs of the statements of charge have been established beyond reasonable doubt, the next question is whether the Court is satisfied beyond reasonable doubt that the conduct which has been proven was contumelious.

The relevant authorities are set out in [116] to [130] below. There is no doubt that breaches of undertakings to the Court usually constitute civil contempts. If the relevant conduct is contumelious then the contempt will become criminal. The essence of contumelious conduct is conduct which is established, beyond reasonable doubt, to demonstrate a deliberate defiance (not necessarily public) of complying with the Court’s order (or in this case, with the defendants’ own undertaking), being a clear manifestation of a determination not to obey.

It was submitted for Mr Novelly that when the entire history recited in the facts section above is taken into account, including the absence of explanation by the defendants for their non-compliance, the Court should be satisfied beyond reasonable doubt that the defendants’ conduct was contumelious. I am not so satisfied.

In case the matter goes further, the Court is satisfied beyond reasonable doubt that such breaches as have been established (subject to the defences discussed below) are civil contempts: deliberate in the sense of wilful breaches, being more than casual, accidental or unintended (see [130(1)] below). However, I am not satisfied that the defendants’ conduct was defiant of compliance with the undertakings or clearly manifested a determination not to comply with them.

The initial communication on 7 December 2022 (see [17] above) is not defiant in tone, notwithstanding the absence of explanation or apology. The communication on 19 December 2022 (see [22] above) contains an apology and remains temperate in the face of aggressive allegations of contumelious contempt (see the letter of 12 December 2002 reproduced in [18] above). Nor, given the time of year it was made, do I accept Mr Novelly’s submission that the defendants’ refusal to take up his offer in the letter of 22 December 2022 (see [26] above) was contumacious. I also do not accept that the Court can be satisfied beyond reasonable doubt that the non-compliance up to and including 22 December 2022 was contumacious based only upon the facts of non-compliance and the absence of an explanation for that non-compliance.

What then follows in 2023 demonstrates (on both sides, but relevantly Ms Bolton in her own right and as the controlling mind of Tamqia) acrimony, distrust, petulance, arrogance, a misguided belief that performance was for the parties alone (see my observations in [70] to [74] above), and an unreasonable insistence on personal performance (notwithstanding that the undertakings contemplated performance by servants or agents). However, through the fog of war generated by the solicitors’ correspondence, the Court finds that the defendants nevertheless manifested in that correspondence that on some basis they would perform what the undertakings required, albeit with the specified time having passed. Importantly, there was no suggestion from the defendants that under no circumstances would they ever perform the obligations they had undertaken.

While what has occurred between the parties is hardly edifying, and is capable of being seriously criticised, I am nevertheless not able to be satisfied beyond reasonable doubt that the defendants exhibited deliberate defiance of the undertakings that would meet the description of contumelious or contumacious as those terms are to be understood on the authorities. A finding of contumacy is also negated by the fact that while legally misguided (see [74] above), the parties did keep asserting (and to a limited extent complying with) later times for performance. In case the matter goes further, I note that the Court has refrained from making findings about how Ms Bolton is alleged to have conducted herself on the occasions she did visit the Premises (see [53] and [68] above). Even if I had made findings based on Mr Wong’s and Mr Novelly’s evidence on those matters, that conduct would have fallen within the descriptions in the preceding paragraph and not change my conclusion that contumelious conduct had not been established beyond reasonable doubt.

There was no dispute between the parties about the applicable legal principles insofar as the construction of the undertakings is concerned. The parties referred to my summary in Bathurst Real Estate Pty Ltd v Fairbrother [2022] NSWSC 351:

Mr Lloyd SC’s first argument in defence involved two propositions.

First, it was said that the undertakings (set out in [75] above) on their proper construction were “entire” (my description) in the sense that non-compliance by one party (in this case said to be Mr Novelly) meant that the occasion for the defendants’ performance of any of the undertakings never arose.

Second, and again as a matter of construction, it was put that the defendants’ obligations to perform any of their undertakings did not arise until Mr Novelly had complied with the Plaintiff’s Removal Access Undertaking, there being no issue for the purposes of the contempt motion concerning the Defendants’ Parking Undertaking and the Defendants’ Toilet Undertaking.

In support of the contention that the undertakings were what I have described as entire, Mr Lloyd SC drew attention to the fact that the parties had chosen in the chapeau to Mr Novelly’s undertakings to use the words “This undertaking”.

In my respectful view, these two construction arguments are untenable on the plain language of the undertakings, for the following reasons.

First, the undertakings must be read as a whole. While the use of the words “This undertaking” cannot be overlooked, it is clear from the terms of the undertakings that they are a series of discrete obligations, subject only to the fact that some of the defendants’ obligations are dependent upon Mr Novelly performing his obligations. While accepting that her Honour’s choice of language is not dispositive, I am fortified in the conclusion I have reached by the fact that in the First Judgment, her Honour refers at [54] to accepting the “following undertakings”.

Second, Mr Lloyd SC was, with respect, correct to offer that the main obstacle to both aspects of the construction argument that he was advancing was the Defendants’ Parking Undertaking. Of its very nature, that undertaking is not dependant on any of the other undertakings. That qualification or concession was rightly made. It is clear from their terms that the various undertakings given by the defendants deal with discrete subject matters.

Once it is accepted that there are four such discrete subject matters, the structure of the undertakings is straightforward. It is apparent both as a matter of practical reality and construction. The Defendants’ Parking Undertaking and the Defendants’ Toilet Undertaking deal with discrete matters and are not qualified by anything. The Defendants’ Removal Undertaking is in terms qualified by the Plaintiff’s Removal Access Undertaking, so much being apparent from the fact that the defined term “Excluded Areas” appears in both undertakings. Nothing can turn on the typographical error in the Plaintiff’s Removal Access Undertaking that refers to “Excluded Area” in the singular. Similarly, the Defendants’ Missing Key Undertaking is qualified by the Plaintiff’s Key Access Undertaking, again confirmed by the common reference to “prayer 9 and prayer 18AC of the Amended Statement of Claim”.

Even if the undertakings were not entire in the sense in which I understood the first aspect of Mr Lloyd SC’s argument, the second proposition of construction which he advanced was also deployed specifically in relation to the Defendants’ Removal Undertaking. The argument was that, as a matter of construction and putting it colloquially, Mr Novelly had to go first. This was a submission to the effect that the Plaintiff’s Removal Access Undertaking had to be performed by Mr Novelly first informing the defendants of the time when access to the Premises would be given. Until that had occurred, the Defendants’ Removal Undertaking was not enlivened.

That construction is both impractical and not available on the plain language of the undertakings. It is decisively negated by the chapeau to Mr Novelly’s undertakings which refers to “having been given 24 hours’ written notice”. That must refer to notice by the defendants of their intention to perform the Defendants’ Removal Undertaking. “Having been” is the perfect past participle and is used to indicate that something has been done before something else happens.

The interaction of the Defendants’ Removal Undertaking and the Plaintiff’s Removal Access Undertaking is clear: on up to ten occasions in order to perform the Defendants’ Removal Undertaking, the defendants were to give 24 hours’ notice of their intention to attend the Premises during business hours, in which event Mr Novelly was obliged by the Plaintiff’s Removal Access Undertaking to give the defendants access to the Premises for the time notified. Given the parties expressly contemplated the possibility that up to ten visits would be required to perform the Defendants’ Removal Undertaking, an obvious objection, for example, to the construction advanced on behalf of the defendants was that if Mr Novelly, as it were, had to go first by notifying the defendants of when they could have access, it would be open to him to stymie the defendants by only giving the first notice on the 28th day of the period limited for the performance of the Defendants’ Removal Undertaking.

In addition to the foregoing, Mr Lloyd SC advanced a further and alternative defence in relation to the defendants’ undertakings concerning keys or opening devices. That argument was that the Defendants’ Own Key Undertaking and the Defendants’ Missing Key Undertaking were ambiguous having regard to the fourth proposition from Bathurst Real Estate (see [86] above) because there was no “prayer 18AC of the Amended Statement of Claim”. It was further submitted that Mr Novelly could not overcome the problem by charging a contempt, as had been done, only by reference to prayer 9 of the Amended Statement of Claim.

Prayer 9 of the relief sought in the amended statement of claim related to keys or opening devices to specified doors:

It is correct to say there was no prayer 18AC of the Amended Statement of Claim. Prayers 18A and 18C of the Amended Statement of Claim do not refer to doors:

That being acknowledged, there is a paragraph 18AC in the pleading section of the Amended Statement of Claim:

This does refer to opening devices for specified doors and is obviously what was intended to be referred to in the relevant paragraphs of the undertakings.

The Court infers that by some oversight (a not unusual occurrence when documents such as the undertakings are prepared under the pressure of litigation) the word “prayer” has been repeated in relation to what should have been a reference to “paragraph 18AC”. However, this does not give rise to an ambiguity of the kind that would vitiate the defendants otherwise being held in contempt of the relevant undertakings.

As is summarised in the fourth proposition I set out in Bathurst Real Estate, an undertaking must be construed “in the light of the context including the purpose of the undertaking and the surrounding circumstances known to the parties”. These are the defendants’ own undertakings given with the benefit of legal assistance. It is apparent from the Amended Statement of Claim and the First Judgment that the parties were well and truly cognisant of the issues in dispute between them – being the surrounding circumstances for the purposes of construction – right down to the minutiae of matters which Peden J ultimately described as “trivial” (see [2] above). They were well aware of what was being sought to be achieved by the undertakings. In this case, “prayer 18AC” on its proper construction can only mean “paragraph 18AC”, and there is no ambiguity.

I do not accept that the defendants could have been in any genuine doubt about what was intended to be signified by the reference to “prayer 18AC”. If there was any doubt, the briefest examination of the Amended Statement of Claim could have cleared it up. Alternatively, it could have been the subject of enquiry by the defendants to Mr Novelly. There is no evidence of any such enquiry.

I am fortified in the conclusion I have reached by this observation of Nicholas J on the construction of undertakings in Australian Competition and Consumer Commission (ACCC) v Allphones Retail Pty Ltd (No 4) (2011) 280 ALR 97; [2011] FCA 338 at [12] that “even if the court is satisfied that words used in an undertaking should be given a particular meaning or denotation, it may also need to consider whether such meaning might fairly be expected to have been within the contemplation of the person alleged to have contravened the undertaking at the time he or she gave it”. For the reasons I have already given, the Court is well satisfied that “paragraph 18AC” was within the contemplation of the defendants at the time they gave the undertakings through their counsel.

Mr Lloyd SC’s other line of defence was not a matter of construction, but rather what I shall describe for convenience (and notwithstanding what I have said in [7] above) as a pleading point.

Mr Novelly’s further amended notice of motion sought relief which included:

As might be expected, prayers 1, 2 and 3 refer to the breaches listed on the relevant statement of charge. These are set out in Schedule A of these reasons. Each of the statements of charge expressly particularises that each of the alleged breaches of the undertakings “was contumacious”.

Mr Lloyd SC submitted that Mr Novelly had expressly particularised the defendants’ alleged conduct as “contumacious” in the statements of charge, thereby making it clear that what was alleged was a criminal rather than a civil contempt. Consistently with that assertion, Mr Barham had contended throughout the hearing that the defendants’ conduct was contumacious and was therefore a criminal contempt. If any contempt had been demonstrated, so Mr Lloyd’s argument ran, it was only a civil contempt. This is what the Court has concluded (see [82] above). However, the submission was that the further amended notice of motion should be dismissed because Mr Novelly had failed to make out what had been expressly charged, namely criminal contempts.

Mr Lloyd SC candidly accepted that he was unaware of any authority which had considered his argument. I will, however, refer below to authorities which provide some context in which Mr Lloyd SC’s argument can be considered.

Mr Barham responded that nowhere in cases otherwise close to the present issue, such as the decision of White J (as his Honour then was) in Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62 and of Biscoe J in Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92 was there any suggestion that by the inclusion of a particular of contumacious conduct in the charge, the applicant had made some kind of irrevocable election. Furthermore, SCR Part 55 makes no provision for such an election.

In my respectful view, for Mr Novelly to invoke the concept of election is a category error. It is not a question of election (usually between alternatives which may involve inconsistent allegations) but rather more straightforwardly a question of what has been charged. The argument proceeded on the basis that there was no authority, binding on me or otherwise, which has dealt with the consequences of where the statement of charge expressly includes an allegation of contumacious conduct which has not been proven beyond reasonable doubt.

Before turning to the authorities such as they are, it is convenient to set out why I have concluded that Mr Lloyd SC’s submission is correct:

By reason of the foregoing, in my respectful opinion, where a statement of charge alleges criminal contempt by an express particularisation of contumacious conduct which is not expressed to be a further or alternative element of the charge, the charge must fail if that element is not made out. As a matter of fundamental procedural fairness in a universe of discourse where the penalty may include imprisonment or a substantial fine, the applicant cannot fall back on a “lesser” charge of civil contempt if the alleged criminal contempt has not been made out. For example, if only criminal contempt (contumelious conduct) has been particularised, the defendant is entitled to take (and will readily be assumed by the Court to have taken) significant forensic decisions on that basis, including whether or not to go into evidence.

The proposition in [114(1)] above derives from the decision of the Hight Court in Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3, which established that all the elements of a contempt, whether civil or criminal, must be established beyond reasonable doubt. The relevant passages are set out in Sigalla:

Crucial for present purposes is the statement of Brennan, Deane, Toohey and Gaudron JJ that “however, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious”. “Contumacious” is the language used in the statements of charge.

It may be observed that many of authorities use the word “contumelious”. The varying use of the terms “contumacious” and “contumelious” was considered by Justice Natalie Adams of this Court, writing extrajudicially, with Ms Belinda Baker, then a Crown Prosecutor and now a Judge of the Supreme Court of the Australian Capital Territory, in a paper delivered to the National Judicial College of Australia and the Australian National University Sentencing Conference on 29 February 2020 entitled “Sentencing for Contempt of Court”. The learned authors said:

In particular, I respectfully agree with what is said in paragraph 9 of the paper quoted in the preceding paragraph.

Witham also supports the proposition in [114(2)] above.

The proposition in [114(3)] above derives from the decision of the Court of Appeal in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [68] to [85] per Beazley JA (with whom McColl JA agreed, the latter also agreeing with the judgment of Lindgren AJA). In Lindgren AJA’s judgment I respectfully also rely on what his Honour says at paragraphs [143] to [144]. Furthermore, paragraph [144] draws to attention that, unlike the present case, neither the notice of motion nor the statement of charge in Pang specified whether the charge was for a civil or criminal contempt, Lindgren AJA concluding that “the most that can be said be said here is that the motion put Mr Pang on notice of the fact that the charge was serious and did not exclude the possibility of a finding of criminal contempt”.

Further authority for the proposition that the distinction between criminal and civil contempt remains a real one for some purposes appears from the judgment of White J in Sigalla at [76] to [88].

The propositions in the balance of [114] above require consideration of two additional authorities. The relevant authorities supporting the proposition in [114(5)] above were conveniently set out in Mosman Municipal Council by Biscoe J:

Before returning to Mosman Municipal Council, reference should be made to refer to the other authority, being Markisic. Simpson J identified the issue before her:

After considering the authorities, her Honour concluded:

Her Honour’s conclusion in the particular circumstances of the case before her was:

In my respectful view, it may said about Markisic:

Returning to Mosman Municipal Council, in that case the defendant had submitted that he was not guilty of contempt because the proceeding was for criminal contempt for disobeying a court order, which could only be made out if the disobedience was contumacious and the statement of charge was defective because it did not allege that the disobedience was contumacious. After considering the authorities, Biscoe J concluded:

His Honour went on (“furthermore” at [65] and following) to develop and express his view that contumacy was only relevant to penalty and not to whether a contempt had been committed. Given his Honour’s conclusion in [64], his Honour’s discussion and conclusion that contumacy was only relevant to penalty are obiter dicta. In addition, while I am not bound by his Honour’s conclusion on the point even if it was part of the ratio decidendi, because I do not share it, I will briefly explain the basis of my disagreement.

Put shortly, I respectfully disagree with Biscoe J for three reasons:

The Court is satisfied beyond reasonable doubt that some of the undertakings were breached deliberately (see [77], [78] and [82] above), that is to say with the requisite element of wilfulness, and as something more than casual, accidental or unintentional. However, as the Court of Appeal observed in Hayden, proceedings such as these must be approached “with strictness and with proper respect for the rights of the person charged” (see [125] above). In the case at bar, the statements of charge expressly particularise the alleged breaches as being contumacious. Those, and only those, are the charges which the defendants were required to defend. Mr Novelly has failed to establish beyond reasonable doubt that the alleged breaches were contumacious. It would be a serious breach of procedural fairness to permit Mr Novelly, notwithstanding the express particularisation of contumacious conduct, to succeed on the basis of having only established civil contempts.

Mr Novelly’s application will therefore be dismissed. Subject to any further application by any party, costs should follow the event. The orders of the Court are: