Camm v ASI Development Company P/L [2007] QCA 300

SUPREME COURT OF QUEENSLAND CITATION: Camm v ASI Development Company P/L [2007] QCA 300 PARTIES: CAMM, Gary Stirling (defendant/appellant) v ASI DEVELOPMENT CO PTY LTD ACN 096 527 123 (plaintiff/respondent) FILE NO/S: Appeal No 8134 of 2007 DC No 533 of 2001 DIVISION: Court of Appeal PROCEEDING: Application for Stay of Execution ORIGINATING COURT: District Court at Maroochydore DELIVERED EX TEMPORE ON: 20 September 2007 DELIVERED AT: Brisbane HEARING DATE: 20 September 2007 JUDGE: Keane JA ORDER: 1. Application for stay refused 2. Costs of application reserved to hearing of appeal CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – STAYING PROCEEDINGS – where applicant failed to comply with consent order for delivery up of possession – where applicant sentenced to six months imprisonment for contempt – where respondent failed to comply with r 665(3) Uniform Civil Procedure Rules 1999 (Qld) – whether stay should be granted pending hearing of appeal Uniform Civil Procedure Rules 1999 (Qld), r 371, r 665(3) COUNSEL: A C Smith for the appellant A J Kimmins for the respondent SOLICITORS: McMahons Solicitors & Attorneys for the appellant Carl Blumen for the respondent -- 1 of 10 -- 2 JUDGMENT KEANE JA: The applicant, Mr Camm, was the defendant in an action commenced by the respondent in December 2001 for specific performance of an agreement by Mr Camm to sell the barge the "MV Edna" to the respondent. On 3 October 2006, the day appointed for the trial of the action, Mr Camm consented to an order of the Court that he would: "…forthwith take any and all such steps to give effect to declarations [that the [respondent] is the legal and beneficial owner of the barge…MV Edna] including transfer to the [respondent] of title…in the…MV Edna and delivery up of possession of the MV Edna to the [respondent] or its solicitor.” Mr Camm did not comply with his undertaking, and, consequently, the respondent applied to the District Court at Maroochydore that he be dealt with for his contempt of the Court. On 24 August 2007, Mr Camm, who was unrepresented at the time, was found guilty of contempt for his failure to deliver up possession of the "MV Edna" to the respondent. He was sentenced to six months imprisonment without parole. Mr Camm has appealed against these orders and now seeks a stay of the orders pending the determination of that appeal. There is evidence that Mr Camm suffers from a number of ailments including ischaemic heart disease. It is also said -- 2 of 10 -- 3 JUDGMENT that his incarceration has had a serious effect upon his mental health. He has no assets. On the respondent's behalf, it is submitted that this application for a stay is misconceived on the basis that the only way for Mr Camm to be released from prison is pursuant to an application for bail pending appeal under the Bail Act 1980 (Qld). The respondent relies in this regard on decisions in Ex Parte Maher [1986] 1 Qd R 303 and Hansen v DPP [2003] QCA 409. Neither of these decisions deal with the position where a punishment of imprisonment for contempt of court has been imposed pursuant to r 900 of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”). The circumstance that the punishment was imposed pursuant to the UCPR tends to suggest, in my respectful opinion, that r 761 of the UCPR which relates to the staying of orders made under the UCPR can apply to a case such as this, and there is no suggestion to the contrary in the cases cited on behalf of the respondent. There is certainly nothing in these authorities to suggest that the court's inherent jurisdiction to grant a stay in order to preserve the efficacy of the court's orders on appeal in a civil case should an appeal succeed has been impliedly removed by the Bail Act. I am, therefore, not persuaded that this Court has no jurisdiction to entertain the application as one pursuant to r 761 or in the inherent jurisdiction of the Court. Further, I am not persuaded that the principles covering the grant of bail pending appeal, which are closely concerned -- 3 of 10 -- 4 JUDGMENT with the respect to be accorded to a verdict by which the prisoner is convicted, apply to an order made to vindicate the authority of the orders of the court in a civil case. In that regard, on an application for a stay pending appeal, the Court's primary concern is that an appeal with genuine prospects of success should not be rendered nugatory if the position of the party with the benefit of the order the subject of the appeal can be adequately protected. Ordinarily this Court will determine an application for a stay pending appeal without coming to any firm or final view on the prospects of success of the appeal (see Denning v Jet Development Pty Ltd & Anor [2006] QCA 544.) On this approach, if it were shown in this case that Mr Camm's failure to deliver up possession of the "MV Edna" resulted from a genuine disability or inability on Mr Camm's part to deliver the vessel up, that the vessel was in safe custody, and that the vessel will be preserved so as to be made available to the respondent should the appeal fail, then I would be very much disposed to accede to this application. The principal ground of the appeal is that as at 3 October 2006, Mr Camm was bankrupt, having been declared bankrupt on 19 November 2003, and, as a result, because title to the "MV Edna" vested in Mr Camm's trustee in bankruptcy, he was not in a position to comply with the order for delivery up of -- 4 of 10 -- 5 JUDGMENT possession. Mr Camm's bankruptcy was extended on 20 December 2006 for a further eight years. I must say immediately that I have grave doubt as to whether this ground of appeal is genuinely arguable, or even that it is a position adopted in good faith by Mr Camm. It is passing strange, to say the least, that Mr Camm agreed to deliver up the vessel in October 2006 if it were subject to a claim by the trustee in bankruptcy. I was told this morning by Mr Camm's representatives from the Bar table that in fact Mr Camm had dismembered the barge before the consent order was made, so that it only partially remains in existence. In the absence of evidence to this effect, I am not disposed to act on these statements from the Bar table, save for saying that it is yet a further basis for thinking that Mr Camm has, as the respondents urge, been playing ducks and drakes with the respondent and with the Court. However all that may be, there is certainly no reason to suppose that the usual rule, that the right of a purchaser in a specifically enforceable contract made before bankruptcy, survives the bankruptcy would not apply here (see Tailby v Official Receiver (1888) 13 App Cas 523.) As to the need to protect the respondent's interests, there is no reliable evidence as to the location of the vessel. Indeed there is no reliable evidence that the vessel exists, or indeed, does not exist. The vessel may, for all one knows, because one cannot rely on Mr Camm's contradictory statements, be being used in a way which may cause its value -- 5 of 10 -- 6 JUDGMENT to depreciate. It may, for all one knows having regard to the inability to rely on Mr Camm's statements, be being moved from the jurisdiction as we speak. That being so, this Court can have no assurance that the respondent will not be prejudiced, at least to some extent, by the grant of a stay. In summary, as to the first ground of appeal, I am not persuaded that it is genuinely arguable that solicitude for the interests of Mr Camm's trustee in bankruptcy has prevented him from delivering up the barge as he agreed to do. That, as I said, is the primary ground of appeal. On the basis of the statements made from the Bar table this morning, it is clear that this is not a genuine ground of appeal. It may well be that Mr Camm's fate has always been truly in his own hands and that his present predicament could have been avoided by a frankness on his part. It may even now be open to him to purge his contempt. On this ground of appeal at least, this Court's intervention by way of a stay appears to be an indulgence which is not really necessary to resolve Mr Camm's predicament, and the granting of a stay might serve to hinder the respondent's enjoyment of its entitlement to the vessel as well as to prevent the vindication of the orders of the courts. The second ground on which the appeal is based is that the order served on Mr Camm, breach of which gave rise to the charge of contempt, did not contain the statement required by r 665(3) of the UCPR alerting Mr Camm to his liability to -- 6 of 10 -- 7 JUDGMENT punishment for contempt if he failed to obey the order. On Mr Camm's behalf, it is said that the learned sentencing judge erred in convicting the applicant of contempt in the absence of that statement. It is well settled that proceedings for contempt are matters strictissimi iuris, that is to say, that there must be strict compliance with the procedures whereby a person may be dealt with and punished for contempt of Court (see Chiltern District Council v Keane [1985] 1 WLR 619.) It is certainly arguable on the authority of a decision of Justice Wilson in Costello v Courtney [2001] 1 Qd R 481) that the respondent's failure to comply with r 665(3) of the UCPR so as to alert Mr Camm to the consequences of his breach of the order is a flaw which should have been fatal to the respondent's application to have Mr Camm punished for contempt, and which could or should not have been excused under r 371 of the UCPR. It appears that the respondent's solicitors wrote to the applicant on 9 October 2006 a letter which Mr Camm acknowledged in his letter of 9 November 2006. The letter of 9 October 2006 advised Mr Camm: "As you are already and continue being in contempt of the Court order, an order for a custodial sentence will be sought." It was evidently on this basis that the learned primary judge was persuaded to excuse non-compliance with r 665(3) pursuant to r 371 of the UCPR. -- 7 of 10 -- 8 JUDGMENT It is, I think, arguable that the statement in the letter was not to the same effect as service of an order with the statement required by r 665(3). The rule requires prior notification to the recipient that his or her liability to proceedings so that that liability can be avoided. The letter sent on behalf of the respondents asserts, in an argumentative way, that Mr Camm is already in contempt. This Court will be able to hear the appeal on 1 October 2007. There is, therefore, no risk that if the appeal is successful it would be rendered entirely nugatory by the refusal of a stay. That having been said, the prospect that Mr Camm might be wrongly incarcerated unnecessarily for another 10 days is very serious. Usually, in my view, it would be regarded as so disproportionate to any prejudice in the respondent which is likely to occur, at least over the next 10 days, that taking into account the availability to Mr Camm of a real argument in relation to the procedure whereby he came to be punished for contempt, a stay should be granted. There is however, in this case, a clear risk, highlighted by Mr Camm's lack of frankness in dealing with the courts, that he will leave the jurisdiction. If he were to do so, the truth as to the whereabouts and even the existence of the barge may never be established. It is a matter of real regret to me that I must say that the lack of frankness which has characterised Mr Camm's conduct in these -- 8 of 10 -- 9 JUDGMENT proceedings leaves me with insufficient confidence that he can be relied upon to vindicate the authority of the Court and honour his obligations to the respondent if he is released from custody pending the appeal. This conclusion gives me no satisfaction, but it obliges me to refuse the application for a stay. I reserve the costs of this application to the hearing of the appeal. MR KIMMINS: Your Honour, before the Court is adjourned, would your Honour be prepared to give directions in relation to the delivery of material. Obviously it's been truncated as such, because the appeal will proceed, as I understand it, on the 1st October. HIS HONOUR: It certainly will. MR KIMMINS: Would your Honour, in those circumstances, be prepared to at least give some dates upon which directions---- HIS HONOUR: Yes. I will. I direct that the appellant's outline of submissions be filed and served on or before 4pm on Monday 24 September. I direct that the respondent's outline of submissions in reply be filed and served on or before 4pm on Thursday 27 September. -- 9 of 10 -- 10 JUDGMENT Otherwise, I direct that the parties are to follow the directions of the Registrar with a view to having the appeal heard on 1 October 2007. ----- -- 10 of 10 --