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PROCEEDINGS FOR AN ALLEGED CONTEMPT OF COURT BY ANIMAL LIBERATION (SA)INC No. SCCIV-01-1597 [2002] SASC 71 (6 March 2002)

Last Updated: 13 July 2002

Court

SUPREME COURT OF SOUTH AUSTRALIA

Judgment of the Honourable the Chief Justice

Hearing

05/02/2002 to 06/02/2002.

Catchwords and Materials Considered

PROCEDURE --- CONTEMPT, ATTACHMENT AND SEQUESTRATION --- CONTEMPT - WHAT CONSTITUTES --- DISOBEDIENCE OF ORDERS OF COURT

The plaintiffs in civil proceedings obtained an order that an authorised officer of the defendant swear an affidavit disclosing the identity of persons who entered the egg farm of the plaintiffs - order not drawn up and sealed by Court and served on defendants - contempt proceedings issued in Supreme Court by plaintiffs - whether failure of plaintiffs to have order sealed and served was in non-compliance with r84.04(3) - whether failure to annex endorsement explaining consequences of failure to seal Court order was in non-compliance with r84.04(3A) - effect of non-compliance - claim of privilege against self-incrimination.

Representation

Plaintiffs: TAKHAR, BHUPINDER SINGH AND TAKHAR, JASWINGER SINGH

Counsel: DR R BAXTER - Solicitors: JOHNSON WINTER & SLATTERY

Defendant: ANIMAL LIBERATION (SA) INC

Counsel: MS J FULLER - Solicitors: JON LISTER

SCCIV-01-1597

Judgment No. [2002] SASC 71

6 March 2002

(Civil)JUR JUR

PROCEEDINGS FOR AN ALLEGED CONTEMPT OF COURT BY ANIMAL LIBERATION (SA) INC

[2002] SASC 71

Civil

  1. DOYLE CJ: A direction was given in proceedings in this Court for the issue of a summons by the Registrar requiring Animal Liberation (SA) Inc. ("ALSA") to answer a charge of an alleged contempt of this Court. The charge is that ALSA, without proper reason, failed to comply with an order made by a Master of this Court in those other proceedings. In the other proceedings Bhupinder Singh Takhar and Jaswindar Singh Takhar ("the Takhars") are plaintiffs, ALSA is the first defendant and Mr Hahnheuser is the second defendant.
  1. The summons came on for hearing before me. Dr Baxter appeared for the Takhars and Ms Fuller appeared for ALSA.
  1. Two issues were argued. First, whether the Master's order in the other proceedings could or should be enforced, in view of the fact that the Master's order had not been drawn up or served on ALSA. Secondly, whether the admitted failure to comply with the Master's order was a contempt.

Background

  1. The Takhars conduct an egg production business on land at Gawler. In the other proceedings the Takhars allege that ALSA "through its representatives", one of whom was Mr Hahnheuser, trespassed on their land and made a video recording of hens being used to produce eggs. The Takhars claim that their business will be damaged if the video film is broadcast. They claim damages and an order for delivery up of all copies of the video.
  1. In the other proceedings Mr Hahnheuser filed an affidavit admitting in some detail that he and about ten "other members" of ALSA entered the premises of the Takhars to obtain evidence that the Takhars were conducting their business in a way that involved offences under the Prevention of Cruelty to Animals Act 1985 (SA). He admitted that a video film was taken. The affidavit was filed in connection with an application for an injunction. Some time later, on 28 June 2001, a Master of this Court made the following order:
"That within 14 days the defendant Animal Liberation SA Inc. file and serve by an appropriately appointed officer an affidavit which discloses the identities of those persons who accompanied Ralph Hahnheuser on the night of 9/10 August 2000, when he entered the plaintiff's premises."
The court record of that order records that when the order was made Dr Ogle appeared for the defendant, and that Mr Hahnheuser appeared in person. An affidavit filed in the other proceedings by Dr Ogle states that he is the secretary of ALSA. The affidavit states that he is authorised to represent ALSA and to bind it in the proceedings. It was filed before the Master's order was made.
  1. The order was never drawn up, sealed or served.
  1. ALSA did not comply with the order. On 28 August 2001 the Master ordered the issue of the summons which is now before me.
The Hearing
  1. The hearing before me proceeded on affidavit. No application was made to cross-examine any of the deponents. It was accepted that ALSA had not complied with the order.
  1. As its name indicates, ALSA is a body corporate by virtue of its incorporation under the Associations Incorporation Act 1985 (SA). Neither party tendered the rules of ALSA or identified the members of its committee (assuming it has one) or proved the identity of its public officer.
  1. Dr Baxter tendered a number of affidavits filed by ALSA in the other proceedings.
  1. Several of these are sworn by Mr Hahnheuser. In them Mr Hahnheuser says that he is a part-time employee of ALSA and that he has the "official position" of "Spokesperson". He gives a detailed description of his entry onto the Takhars premises. He refers to Necia Page as the President of ALSA, and says that she did not enter the Takhars' premises with him.
  1. In an affidavit filed in these proceedings, and tendered by Dr Baxter, Necia Page says that she is President of ALSA. She refers to the Master's order and says:
"4. As an appropriately appointed officer of Animal Liberation SA Inc, I decline to comply with the order on the basis that any answer or information I give may tend to incriminate me. I have been advised that my claim to privilege can be made whether or not I was or was not physically on the premises. I make this claim for myself.
5. I have spoken with the other office bearers of Animal Liberation SA Inc. Each of those persons who might be regarded as proper officers have advised that they would, if required, swear an affidavit in identical terms to this affidavit."
Dr Baxter accepted that other office bearers of ALSA would have made the same claim of privilege that she made. He did not require the filing of affidavits by the other office bearers.
  1. I have already referred to the affidavit of Dr Ogle which was tendered by Dr Baxter.
  1. I find that each of these persons is an officer of ALSA, within the meaning of that term in the Associations Incorporation Act. I find that Mr Hahnheuser entered the premises with others, knows who they are, and has made detailed admissions in his affidavit about his entry. I am satisfied that the affidavit provides a sufficient basis for a prosecution of Dr Hahnheuser, should the police or the Director of Public Prosecutions be disposed to institute proceedings on the basis that the entry on the Takhars' premises was a criminal trespass. I find that Mr Hahnheuser and Dr Ogle were aware of the Master's order as soon as it was made. Both were present. I am prepared to infer that Ms Page and other officers of ALSA became aware of the Order not long after it was made, but I cannot find whether they became aware of the Order within 14 days of the making of the Order.
Procedural Issue
  1. Ms Fuller submits that the Master's order cannot be enforced because it was not drawn up or served.
  1. Rule 84.13 provides:
"Unless the Court otherwise orders:
(a) a party made enter an order at any time;
(b) an order shall subject to Rule 84.14 be entered when some step is to be taken under the order, and in particular shall be entered:
(i) where the order only takes effect on the signing of the order;
(ii) where the order is to be served;
(iii) where the order is to be enforced;
(iv) where an appeal from the order has been instituted, or an application for leave to appeal from the order has been made;
(v) where the Court so directs."
  1. Rule 84.04 provides:
"(1) Subject to paragraph (2), a judgment or order which requires a person to do, or abstain from doing, an act shall specify the time within which he is required to do or abstain from doing, the act.
(2) Where the act which a person is required by judgment or order to do is to pay money to some other person, give possession or any land or deliver any goods, a time within which the act is to be done need not be specified, but tis shall not affect the power of the Court to specify such a time.
(3) A copy of any judgment or order requiring any person to do, or abstain from doing, any act unless the Court otherwise orders, be served personally upon the person required to obey the same before the time specified for compliance.
(3A) Every judgment or order sealed by the Court requiring any person to do, or abstain from doing, any act shall unless the Court otherwise orders have indorsed thereon a warning to the persons affected by the order of the possible consequences of their failure to obey the order.
(4) Where a judgment or order requires a person to do an act, but does not specify a time within which he is required to do it, the Court may by order require him to do the act within a specified time."
  1. Rule 12.02(b) provides:
"Unless the Court otherwise orders personal service shall be required:
...
(b) where it is intended to enforce obedience to a judgment or order by process of attachment.
..."
  1. Dr Baxter submits that there was no obligation to have the order drawn up. He submits that the order is not one that was "to be enforced" for the purposes of r 84.13(b)(iii). He submits that it is in substance an order for discovery. He submits that such an order is not to be enforced, like an order for the possession of land. The position is simply that a failure to comply may result in punitive action, such as a fine or procedural action (such as striking out a pleading), which action is intended to encourage compliance with the order, but is not enforcement of the order. It follows, he submits, that there was no need to serve the order personally or at all.
  1. I disagree. Rule 84.13 should not be read so narrowly. An order is enforced if it can be enforced specifically, or if it requires or commands the performance of an act, and the failure to perform that act may result in contempt proceedings. This conclusion is supported by commonsense. The order made in the other proceedings is the very sort of order that should be drawn up, so that there is no doubt about its terms and about the fact that the order has been made. My own experience of the practice of the court is that this is the sort of order that is usually drawn up.
  1. In any event, r 84.04 by implication requires that the order be drawn up. The order is one that requires a person to do an act. The requirements of r 84.04 will be met only if the order is drawn up. Rule 84.04(3) provides for personal service of such an order for obvious reasons. The Master did not order that personal service need not be effected. Personal service can be effected only if the order is drawn up. As well, the reasons for requiring a warning as to the possible consequences of non-compliance with the order are obvious. The warning will be given only if the order is drawn up. Taken as a whole, r 84.04 requires the drawing up and service of the order, accompanied by an appropriate warning.
  1. If it is necessary to go any further, I add that r 12.02(b) applies to require personal service of the order in this case, and that again would require that the order be drawn up.
  1. In this respect the Rules do not reflect outmoded technicalities. When a court makes an order which can be enforced by contempt proceedings, and is likely to be so enforced, the interests of certainty and justice support having the order drawn up, having it sealed with the seal of the Court and having it served. Such a process is designed to resolve any differences or disputes about the terms of the order, to remove any doubt about the fact and authenticity of the order, and to provide a clear warning of the serious consequences that may follow from a failure to comply with the order.
  1. The Rules do not state the consequences of the failure to have the order drawn up and served on ALSA. The Rules necessarily imply that the Court may refuse to enforce an order if it has not been drawn up and served.
  1. English authority supports the view that the order cannot be enforced: see Hampden v Walis (1884) 26 Ch D 746 at 752-4; Iberian Trust Limited v Founders Trust and Investment Company Limited [1932] 2 KB 87 at 97 and Benabo v William Jay and Partners Limited [1941] 1 Ch 52 at 55-56.
  1. More recent Australian authority supports the view that the Court has the power and a discretion to enforce the order, although the requirements of the Rules as to drawing up and service of the order have not been met: see von Doussa v Owens (No. 1) (1982) 30 SASR 367 at 396-399 and at 401-402. In other courts orders that have not been regularly served have been enforced, sometimes in reliance on a specific proviso to the rule relating to the requirement to serve a judgment, and sometimes in reliance on the Court's general power of dispensation from the requirements of the rules: see Australian Securities Commission v MacLeod (1993) 113 ALR 525 at 529-530; Rogerson v Tchia [1992] NTSC 80; (1992) 111 FLR 1 at 13 and [1995] NTCA 34; (1995) 123 FLR 126 at 130-131; Deverall v Wannunup Development Nominees Pty Ltd (1994) 12 WAR 561 at 564-565. I have no doubt that the general power the Court has under r 3.04(a), to dispense with compliance with the Rules, includes a power to excuse the failure in the present case to draw up and to serve the order.
  1. The question is whether I should exercise that power. During the course of the hearing I asked Dr Baxter whether he sought an order dispensing with compliance with the Rules. He declined to do so. That is not the end of the matter, but it is a significant fact. I must also bear in mind that the observance of proper procedures in relation to orders of the kind in question here is important. There has been a substantial departure from what, in my opinion, is the appropriate procedure. This has had some practical consequences. For instance, the order required the filing of an affidavit within 14 days. Had the order been drawn up and served, it is likely that attention would have been paid to the fact that the time limit might be inappropriate, when one allows for the time likely to be taken drawing up the order and having it served. There is no reason why the order could not have been drawn up and served. There was no urgency, and no apparent difficulty in serving ALSA. On the other hand, I am satisfied that ALSA had notice of the order under its requirements when the order was made. I am prepared to treat the knowledge of Dr Ogle and Mr Hahnheuser as the knowledge of the ALSA, although I note that proper service would have been service on the public officer of ALSA: see r 15.01(v) and s 64 Associations Incorporation Act. Service on the public officer is intended to ensure that the order comes to the attention of the governing body.
  1. I note that in the proceedings before me ALSA has not suggested that it is prejudiced by the failure to comply with the Rules.
  1. I consider that there is a solid basis for dispensing with the requirement of the Rules. Subject to hearing from Ms Fuller I probably would have done so, but for the fact that Dr Baxter declined to seek such an order. While that is not the end of the matter, as I observed earlier, it seems to me to be significant. The Court would not usually exercise a dispensing power under the Rules when it is not asked to do so. There is no particular reason why, in the interests of justice, I should exercise the dispensing power even though not asked to do so. The required procedure not having been followed, I conclude that the Court should decline to punish any breach of the order that might be proved. Accordingly, subject to any further application or submissions, I propose to dismiss the summons.
  1. That being so, it is inappropriate for me to consider the merits of the claim that the claim of privilege against self incrimination is an answer to the claim that the Master's order has been breached. If the summons is to be dismissed, I assume that the Takhars, if they wish to pursue the matter, will ask the Master to make the same or a similar order again, and will have it drawn up and properly served. Were I to indicate my views on the claim of privilege, I would simply give the parties an opportunity to reconsider their respective positions and to contest the matter again, adjusting their positions to the extent they can in the light of whatever I might have said. I cannot be confident that an expression of my views would resolve the matter come what may. Accordingly, I do not propose to deal with the substantial merits of the application before me.

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