Trevenar v Ussfeller & Ors [2006] NSWSC 807

Trevenar v Ussfeller & Ors [2006] NSWSC 807

The Court would not provide an advance provisional view on whether the contempt proceedings could proceed despite non-service of sealed orders because such a view could create a reasonable apprehension of pre-judgment or bias and the defendants had not been heard. Relief dispensing with service under r 40.7(5) should not be granted ex parte because the defendants had not had notice of that claim. There was no evidence justifying arrest warrants, so if the plaintiff proceeded the appropriate course was to require the first and third defendants to attend to answer the contempt charges.

Jurisdiction
Australia
Judgment Date
26 July 2006
Procedural Posture
Application to Punish Defendants for Alleged Contempt of Court / Return of Notices of Motion; Ex Tempore Judgment
Outcome
Counsel to bring in short minutes of order.
Legal Topics
['service of Sealed Copy of Orders Before Committal or Sequestration' 'dispensing With Service' 'attendance to Answer Charges of Contempt' 'arrest Warrants' 'reasonable Apprehension of Pre Judgment or Bias']
['practice and Procedure' 'contempt of Court'] ['service of Sealed Copy of Orders Before Committal or Sequestration' 'dispensing With Service' 'attendance to Answer Charges of Contempt' 'arrest Warrants' 'reasonable Apprehension of Pre Judgment or Bias']

Case Brief

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Procedural Posture

Application to Punish Defendants for Alleged Contempt of Court / Return of Notices of Motion; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the plaintiff should be permitted to proceed with contempt applications against the first and third defendants despite non-service of sealed copies of the earlier orders.' 'Whether the Court should express a provisional view in advance as to whether the orders could or should be enforced by contempt proceedings notwithstanding non-compliance with r 40.7(1) of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether service of sealed copies of the orders should be dispensed with under r 40.7(5) of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether warrants should issue for the arrest of the first and third defendants or whether orders should instead require their attendance to answer the contempt charges.']

Ratio Decidendi

The Court would not provide an advance provisional view on whether the contempt proceedings could proceed despite non-service of sealed orders because such a view could create a reasonable apprehension of pre-judgment or bias and the defendants had not been heard. Relief dispensing with service under r 40.7(5) should not be granted ex parte because the defendants had not had notice of that claim. There was no evidence justifying arrest warrants, so if the plaintiff proceeded the appropriate course was to require the first and third defendants to attend to answer the contempt charges.

Court Disposition

Counsel to bring in short minutes of order.

Orders

  • ['Leave granted for the notices of motion to be amended to claim relief under r 40.7(5) of the Uniform Civil Procedure Rules 2005 (NSW).' "The matter was to be stood in the list for counsel to obtain the plaintiff's instructions as to whether she wished to proceed with the notices of motion." 'If the plaintiff chose...