Mensink v Parbery [2018] FCAFC 101

Mensink v Parbery [2018] FCAFC 101

The appeal failed because the primary judge did not err in ordering the examination arrest warrant or the contempt arrest warrant. The material supported the conclusion that Mr Mensink knew of the requirement to attend for examination, at least for 22 February 2017 and sufficiently for 27 March 2017 through the surrounding circumstances and his legal representation, and that his non-attendance was without reasonable cause. The r 11.10 warrant was independently supported by the failure to attend on 22 February 2017. The contempt warrant was not invalidated by the alleged defects in the statement of charge, and r 42.14(2) was satisfied because the circumstances showed that Mr Mensink had...

Jurisdiction
Australia
Judgment Date
28 June 2018
Procedural Posture
Appeal / Full Court Appeal Against Interlocutory Orders for Arrest Warrants to Issue in Corporations Examination and Contempt Proceedings
Outcome
Appeal dismissed with costs; respondents' notice of objection to competency dismissed.
Legal Topics
['arrest Warrants for Corporation Examination Default' 'examination Summons Under S 596 a of the Corporations Act 2001 (cth)' 'reasonable Cause for Non Attendance' 'notice and Substituted Service' 'contempt Charges' 'requirements of R 42.14(2) of the Federal Court Rules 2011 (cth)' 'competency and Leave to Appeal From Interlocutory Orders Affecting Liberty']
['practice and Procedure' 'corporations' 'contempt of Court' 'corporate Insolvency'] ['arrest Warrants for Corporation Examination Default' 'examination Summons Under S 596 a of the Corporations Act 2001 (cth)' 'reasonable Cause for Non Attendance' 'notice and Substituted Service' 'contempt Charges' 'requirements of R 42.14(2) of the Federal Court Rules 2011 (cth)' 'competency and Leave to Appeal From Interlocutory Orders Affecting Liberty']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Full Court Appeal Against Interlocutory Orders for Arrest Warrants to Issue in Corporations Examination and Contempt Proceedings

Legal Issues

  1. 1 ["Whether the primary judge erred in ordering an arrest warrant under r 11.10 of the Federal Court (Corporations) Rules 2000 (Cth) to secure the appellant's attendance for examination." 'Whether the appellant had notice of the examination summons or orders requiring attendance on 22 February 2017 and 27 March 2017.' "Whether the appellant's failure to attend was without reasonable cause." 'Whether the primary judge erred in ordering a contempt arrest warrant under r 42.14 of the Federal Court Rules 2011 (Cth).' 'Whether defects alleged under rr 41.06 and 41.07 of the Federal Court Rules 2011 (Cth) prevented the contempt warrant from issuing.' "Whether the respondents' notice of objection to competency should be dismissed."]

Ratio Decidendi

The appeal failed because the primary judge did not err in ordering the examination arrest warrant or the contempt arrest warrant. The material supported the conclusion that Mr Mensink knew of the requirement to attend for examination, at least for 22 February 2017 and sufficiently for 27 March 2017 through the surrounding circumstances and his legal representation, and that his non-attendance was without reasonable cause. The r 11.10 warrant was independently supported by the failure to attend on 22 February 2017. The contempt warrant was not invalidated by the alleged defects in the statement of charge, and r 42.14(2) was satisfied because the circumstances showed that Mr Mensink had...

Court Disposition

Appeal dismissed with costs; respondents' notice of objection to competency dismissed.

Orders

  • ['The appeal be dismissed with costs.' "The respondents' notice of objection to competency be dismissed."]