Trade Practices Commission v CG Smith Pty Ltd [1978] FCA 2; (1978) 30 FLR 368 (17 February 1978)

FEDERAL COURT OF AUSTRALIA

TRADE PRACTICES COMMISSION v. C.G. SMITH PTY. LTD. [1978] FCA 2; (1978) 30 FLR 368
Contempt of Court

COURT

FEDERAL COURT OF AUSTRALIA
GENERL DIVISION
Bowen CJ.(1)

CATCHWORDS

Contempt of Court - Non-compliance with order to pay money - Breach of undertakings to court - Whether contempt contumacious - Service of order - Matters to be set out in motion - Trade Practices Act 1974. Proceedings were commenced by the plaintiff against the first-named respondent in relation to misleading advertising of interests in land. The second and third-named respondents (Messrs. Fairweather and Matson) were alleged to have aided and abetted such conduct. The proceedings against all three were settled on terms signed by counsel for the respective parties and on 21st July, 1977, Franki J. made orders in accordance with those terms. The settlement involved certain undertakings being given by the respondents to the court.

The respondents were required, by the orders, to take particular steps to notify persons who had paid money in respect of the land and to make refunds should any claims be made. The respondents did not comply with the undertakings and orders. The plaintiff, by notice of motion, sought an order for committal for contempt of court against Messrs. Fairweather and Matson.

Held: (1) There was an ambiguity in the undertakings given to the court. The court is reluctant to imprison persons for a breach of an undertaking which is not clear and unambiguous. A genuinely held view, even if erroneous, may show that persons were not acting contumaciously.

(2) Messrs. Fairweather and Matson interpreted the undertakings in the manner claimed by them and had justification for doing so.

(3) Neither the orders nor the undertakings were served upon either respondent before the motion for committal. As the undertakings were of some complexity, it would have been advisable for them to have been served upon each of the respondents. The failure to serve, while not an absolute bar to the making of an order for contempt, is a factor to be considered.

(4) Where a person contumaciously disobeys an order of the court or breaks an undertaking given to the court, he may be sentenced to remain in custody for a fixed term by way of expiation. However, these processes are primarily coercive or remedial rather than punitive.

(5) Messrs. Fairweather and Matson had each committed a breach of the undertaking he had given when he failed to refund moneys within twenty-one days to those who had completed and posted to the company the appropriate claim form. However, the breaches by them, in the circumstances disclosed by the evidence, were not contumacious.

(6) As the first respondent had gone into liquidation and Mr. Matson had been made bankrupt, neither could comply with the undertakings.

(7) In proceedings for contempt of court, the court has power to make an order, short of imprisonment, directed to securing compliance with an undertaking so far as it is practicable. As Mr. Fairweather did not receive notice of the plaintiff's oral application for an order to secure compliance, such application must, for this reason at least, fail.

(8) Motion dismissed. No order as to costs.

Australian Consolidated Press Ltd. v. Morgan [1965] HCA 21; (1965), 112 CLR 483, followed.

HEARING

Sydney, 1977, July 6, 21; October 26, 27; November 4, 8; December 5, 9; 1978, February 2, 3, 17 17:2:1978

APPLICATION.

The plaintiff sought, by notice of motion, an order against the second and

third respondents that they be committed to prison for contempt of court in that they disregarded and committed a breach of an undertaking given to the court on 21st July, 1977.

D. M. J. Bennett, for the plaintiff.

The second and third respondents appeared in person. Cur. adv. vult.

Solicitor for the plaintiff: A. R. Neaves (Commonwealth Crown Solicitor). (Reported by B.D. Lawrence Esq., Barrister at Law)

DECISION

February 17.

The following judgment was delivered.
BOWEN C.J. The Trade Practices Commission ("the commission") by notice of

motion seeks an order against Ian Fairweather and Roger Gregory Matson that they be committed to prison for contempt of court in that they have disregarded and committed a breach of an undertaking given to this Court on 21st July, 1977. (at p369)

2. The undertaking in question was given upon the settlement of proceedings brought by the commission against C. G. Smith Pty. Ltd. ("the company"), Ian Fairweather and Roger Gregory Matson. In these proceedings, the commission sought an order restraining the company from engaging in trade or commerce in the conduct of advertising interests in land in a manner that was misleading and, in particular, in the conduct of advertising interests in the land without disclosing the nature of the interests and the building restrictions which existed. The commission also sought an order restraining Mr. Fairweather and Mr. Matson from aiding and abetting any person to engage in such conduct or being knowingly concerned in or party to such conduct. (at p369)

3. When these proceedings came on for hearing before Franki J. on 21st July, 1977, they were settled on terms which were signed by counsel for the respective parties and handed up to the judge, who made orders accordingly. (at p369)

4. By the terms, the respondents agreed to the making of orders in terms of documents annexed and marked "A", "B" and "C"; the commission agreed to file with the court a letter in the form of annexure "D"; the respondents, by their counsel, gave the undertakings in annexure "E"; and liberty to apply on three days' notice was reserved. Annexure "A" provided for an injunction against the company in terms similar to those sought by the commission. It further provided for an order in the following terms: (at p370)

5. "AND THIS COURT DOTH BY CONSENT FURTHER ORDER that the first respondent disclose to each person who has paid money to the first respondent or to Fairmat Finance Co., whether as payment in full, as a deposit, as a partial payment or otherwise, in respect of an interest in the said land, the information specified below, by sending to each such person by pre-paid ordinary post within twenty-one days of the date of this order a letter containing the said information: (at p370)

6. "The Federal Court of Australia by consent has directed C. G. Smith Pty. Ltd. to disclose the following information in relation to interests in Rural and River Acres Estate purchased from C. G. Smith Pty. Ltd. (at p370)

7. "For each '1 acre' purchased, purchasers receive a 1/9,000th interest in the whole estate, which interest is held on trust for purchasers by C. G. Smith Pty. Ltd. C. G. Smith Pty. Ltd. has granted to each purchaser of an 'acre' an exclusive right to occupy an allotment having an area of approximately 0.4 hectares (1 acre). By these arrangements purchasers do not acquire any interest in land thay may be registered with the Registrar-General. (at p370)

8. "As the land is zoned as 'non-urban "A"', purchasers may not erect on the land any house, cabin, shed or other dwelling although they may erect non-residential buildings for use in connection with rural activities such as stables garden sheds and rural outbuildings. (at p370)

9. "If, as a result of the above information not having been previously made clear to you, any purchaser desires to have refunded any money paid in respect of the land and to have rescinded any contract in respect of the land, the attached form should be completed and posted to

C. G. Smith Pty. Ltd.,
3rd Floor,
300 George Street,
SYDNEY. N.S.W. 2000
ATTACHED FORM

"Name(s):
Address:
Allotment Number(s): Section Number:
Portion Number:
Total Amount paid: $-----------------
As a result of -
the information as to the nature of the interest in the land
that I/we purchased, and/or
the information that I/we cannot build a house on the land,
I/we demand that you return all money, that I/we have paid in
respect of the land, to me/us immediately at the above address.
I/we understand that upon refund of that money to me/us, all
contracts that I/we entered into in respect of the land will be
rescinded.
Signature(s): ----------------------

---------------------" (at p371)

10. Annexure "B" provided for an injunction against Mr. Fairweather and Mr. Matson in terms similar to those sought by the commission. Annexure "C" provided for an order that the respondents pay the commission's costs. Annexure "D" provided for a letter in which the commission, while stating it had no authority to authorize or clear advertising stated it had no objection to a specified advertisement. Annexure "E" provided for the undertakings. It was as follows: (at p371)

11. "THIS COURT DOTH NOTE THE UNDERTAKINGS TO THE COURT, jointly and severally, by the first, second and third respondents, that they will (at p371)

12. "Refund to each person who completes and posts to the first respondent a document in the terms of the form set out in annexure 'A' to these terms of settlement, the money paid by such person to the first respondent or to Fairmat Finance Co., such refund to be made within twenty-one days of the receipt by the first respondent of the said document. (at p371)

13. "Provide the applicant within twenty-eight days with a list of the persons who have paid money to the first respondent or to Fairmat Finance Co. in respect of an interest in the said land. (at p371)

14. "Provide the applicant on or before 1st December, 1977, with a list of persons responding to the said letter and a statement of the steps taken with regard to each." (at p371)

15. The court, on 21st July, 1977, made orders in accordance with these terms. Its orders were passed and entered on 24th August, 1977. The form of letter ordered to be sent out by the company was sent out, dated 5th August, 1977, and various persons filled in the attached form and returned it to the company. (at p371)

16. Thereafter an unsigned document dated 19th August, 1977, on the letterhead of the company was sent to the claimants. It was in the following form: " 19th August, 1977

Dear Purchaser,

Thank you for your signed questionnaire form relating to the
recent consent order handed down by the Federal Court.
In order to determine if you are eligible for a refund, it is
necessary to complete and sign this letter and have it witnessed
before a Justice of the Peace.
Q.1 Did you read and sign a blue copy deed of ownership?
No Yes
Q.2 Did you receive the standard letter from C. G. Smith Pty.
Ltd. confirming that you had acquired a 1/9,000th interest in the
9,000 acre estate?

No Yes

PLEASE CAREFULLY NOTE THE FOLLOWING:

1. All signed and witnessed blue copy deeds of ownership are
being held by C. G. Smith Pty. Ltd.

2. A postal register list of all persons sent the standard letter of
confirmation is being held by C. G. Smith Pty. Ltd.
I confirm that the information given by me as above, is the truth.

Signed _____________________

Witnessed by _____________________

(Justice of the Peace) (at p372)

17. Date _____________________"
No money was refunded to any of the claimants. On 5th October, 1977, the present proceedings for contempt were commenced. (at p372)

18. The number of purchasers of interests in the land was not precisely established. From the evidence I conclude that it was more than 450 persons. They paid varying amounts. Some paid deposits only. Counsel for the commission asserted that something in the vicinity of $140,000 was involved. Some of that evidence suggested that a sum considerably in excess of that figure was involved. Mr. Matson in his evidence suggested a figure of $250,000. On 17th August, 1977, the company went into liquidation. Evidence was given by Mr. Barrett, a public accountant, who was handling the matter in the liquidator's office. He gave evidence that the accounts of the company were in disorder. They did show receipts of $139,641 in respect of sales. Later evidence indicated that newspaper publicity resulted in the banks refusing to conduct a bank account for the company and that for a period, moneys in respect of sales were received by the respondents and banked in a private account, including one cheque for $4,500 dated 11th July, 1977. Mr. Barrett presented a list of twenty-eight purchasers whose money, he said, did not go into the company's accounts. He had specific amounts in nine cases. He thought the total amount involved exceeded $20,000. The evidence does not enable me to say how all this money received by the company or the respondents in respect of land sales was applied. In the liquidation, the valuation and the disposal of the land, about 9,000 acres, would present some problems due to the outstanding undivided interests which had been sold. It seems that some purchasers may wish to proceed with their transactions. It seems also that there is a mortgage upon the land for an amount which is disputed. Mr. Barrett anticipated that the claimants in the liquidation would receive about five cents in the dollar. (at p373)

19. The evidence given by the commission included affidavits from ten persons who swore they had paid moneys in response to the advertisements and, having later received the letter of 5th August, 1977, had completed the form and returned it to the company claiming a refund of their money. Seven of these were cross-examined on their affidavits. I accept them as credible witnesses. In the result it appeared that some had been misled in respect of both matters referred to in the letter of 5th August, 1977, that is, the nature of the interest being offered and the restrictions as to building on the land. Some, it appeared, had been misled only as to one or other of these two matters. At least one who had sent in a claim in response to the letter had not been misled on either matter but had changed his mind and wanted his money back. (at p373)

20. For the commission, it was argued that breach of the undertakings by both Mr. Fairweather and Mr. Matson had been established and it was requested the order asked for in the notice of motion be made. (at p373)

21. Each of the respondents appeared in person, a fact which led to some degree of confusion in the cases presented on their behalf. However, in summary, the following matters were raised: (i) The undertakings were ambiguous and should not, in the circumstances, be enforced in the manner requested. (ii) They had understood the obligation to pay applied only to those who had been misled and accordingly they were justified in attempting, by means of the letter of 19th August, 1977, to establish which were proper claimants. (iii) They had not properly understood the undertakings. Mr. Fairweather, who was not present in court when they were given, claimed they were given without his authority. (iv) They had not been served with a copy of the orders and undertakings. Mr. Fairweather claimed he had no copy until one was given to him in the course of the proceedings. (v) They claimed their counsel was unaware that the company and each of them was in financial difficulty and would not have given the undertakings had he known the true position. (vi) They claimed their financial position was such that they were incapable of fulfilling the undertakings. The company was in liquidation and could not make the refunds referred to in the undertaking. Mr. Matson claimed his assets were small and that he was unable to make the refunds. On 21st November, 1977, Mr. Matson became bankrupt on his own petition. Mr. Fairweather claimed his assets did not extend beyond $2,300, the residue of an amount paid into court by him as one condition of his release from custody following an attempt to leave the country after he had been served with the present motion, and a property at Warkworth, the value of which was estimated variously as being from $4,000 to $55,000. He held a transfer to himself of this property but was unable to obtain title until a discharge of mortgage, tendered in evidence in the proceedings, was released to him. (at p374)

22. As to (i), it appears to me that there is ambiguity in the form of the undertakings. On the one hand it may mean that although the letter of invitation to claim, which was ordered by the court, invites only those who have been misled in the manner set forth in the letter to complete the form and send it in, the undertakings bind the respondents to refund their moneys within twenty-one days to all who send in the form whether or not they were misled. This is the interpretation put forward by counsel for the commission. On the other hand, it may mean that the respondents must refund moneys within twenty-one days to those who complete and send in the form properly in response to the invitation, which was directed in terms only to those who had been misled. This was, in substance, the interpretation which was acted on by the respondents and was the interpretation put forward by them in argument. (at p374)

23. The presence of the ambiguity is of some importance, since the court is reluctant to imprison persons for breach of an undertaking which is not clear and unambiguous. Even if they acted on an interpretation which the court holds to be erroneous, provided they genuinely held that view, it may show they were not acting contumaciously and is, at least, a matter to be taken into account by the court in exercising its discretion (Australian Consolidated Press Ltd. v. Morgan [1965] HCA 21; (1965) 112 CLR 483, at pp 491, 506, 515 ). I feel bound to say that in my opinion the latter interpretation is the correct one, notwithstanding the fact that no procedure is incorporated for determining whether a claimant falls within or outside the class of those who have been misled. (at p374)

24. As to (ii), I am of opinion the respondents did interpret the undertakings in the manner claimed by them and had justification for doing so. I hold this view notwithstanding the valid criticism offered by counsel for the commission that the letter of 19th August, 1977, was no mere attempt to ascertain into which class any particular claimant fell, but rather was couched in terms calculated to discourage claimants. (at p374)

25. As to (iii), I am of opinion the undertakings were given by counsel with the authority of each respondent. I am further of the view that each respondent appreciated he was bound personally. (at p374)

26. As to (iv), it is clear that neither the orders of 21st July, 1977, nor the undertakings were served upon either respondent prior to the motion for committal. On 21st July, 1977, Mr. Matson who attended in court, took away with him a copy of the terms of settlement which included the terms of the undertakings. I conclude that Mr. Fairweather did not receive a copy of the undertakings until he was handed one in the course of the proceedings before me. I am unable to say from the evidence whether Mr. Fairweather was shown a copy by Mr. Matson, though the settlement was, late on 21st July, 1977, discussed between them at Mr. Fairweather's home at Hunter's Hill. (at p375)

27. It is, in my opinion, a wise practice that when it is proposed to apply to commit a person to prison for breach of an order of the court or of an undertaking given to the court, the order or undertaking in question should first be personally served upon that person preferably with some form of notice calling his attention to the consequences which may flow from disobedience. In relation to this subject, our rules apply the Rules of the High Court. The relevant High Court Rules are to be found in O. 45, rr. 12-16, O. 56, r. 2 and O. 62, rr. 1 and 2. (at p375)

28. Counsel for the commission argued that in this case, the undertakings were not formally part of the court's order and were outside O. 62, r. 1. He relied upon O. 62, r. 2. (at p375)

29. It has been said that an undertaking is to be treated as equivalent to a court order, and the rules should also be considered applicable to undertakings (Milburn v. Newton Colbery Ltd. (1908) 52 Sol Jo 317 ). While this indicates what is the advisable course, if it is to be the invariable practice it seems the rules should be amended to say so. In the case of an injunction where there is no doubt the person concerned has notice of it, the court may commit for contempt in respect of a breach notwithstanding the order has not been personally served, at all events where it is of a negative character (D. v. A. & Co. (1900) 1 Ch 484, at p 487 ; Ronson Products Ltd. v. Ronson Furniture Ltd. (1966) Ch 603 ; and see generally The Law of Contempt by Borrie and Lowe (1973), at p. 325). (at p375)

30. In the present case, where the undertakings referring back to the letter ordered to be sent out were of some complexity, it would, in my view, have been advisable that they should be served upon each of the respondents. Particularly is this so in the case of Mr. Fairweather, who was absent from the court when the undertaking was given on his behalf. I consider the fact that it was not served, while not an absolute bar to the making of an order on the present motion, is a factor to be taken into account in deciding what should be done. (at p375)

31. As to (v), while it was established by evidence given by the counsel in question that he was unaware that the company and individual respondents were in financial difficulties, this does not, in my opinion, furnish a ground for releasing them from the undertakings. Indeed, it is not clearly established by the evidence just what the financial position was at 21st July, 1977. The evidence does show the two individual respondents intended the company should continue to carry on business in conformity with the restrictions placed upon it by the court's orders and, being freed of the proceedings brought by the commission, should continue to get in moneys from purchasers. (at p376)

32. As to (vi), from the evidence given by Mr. Barrett, it appears clear that the company, now in liquidation, is unable to fulfil the undertaking given on its behalf. (at p376)

33. The position of Mr. Fairweather and Mr. Matson presents more difficulty. A good deal of evidence was presented regarding their individual circumstances including oral evidence given by each of them. After observing them in the witness box and considering the evidence which they gave, I find myself unable to place any reliance upon their evidence on contentious issues in the absence of evidence corroborating what they say. Furthermore, in spite of the efforts of the commission and the liquidator of the company, there remain areas where no explanation is available as to where moneys received from purchasers have gone. It was into this situation that the bankruptcy of Mr. Matson, upon his own petition, was projected during the course of the hearing. This bankruptcy has certainly rendered him incapable of making the refunds which he undertook to make. What the official receiver may do in respect of any proofs of debt lodged on the basis of the undertakings remains to be seen in the future. Imprisonment for non-payment of ordinary debts has, of course, long since fallen into desuetude. Nevertheless, it has been held in England that where the failure to pay constitutes breach of an undertaking given to the court, and there is a contumacious debtor who has the means, or has had the means, to pay the debt and his conduct is in the nature of contempt, the court may order imprisonment by way of punishment notwithstanding a receiving order has been made (Re Edgcome; Ex parte Edgcome (1902) 2 KB 403, at p 410 ). (at p376)

34. It is important to maintain respect for the court's orders and to ensure recognition of the binding effect of undertakings given to the court. Where a person contumaciously disobeys an order of the court or breaches an undertaking given to the court, he may be sentenced to remain in custody for a fixed term by way of expiation. However, these processes are primarily coercive or remedial rather than punitive. They are designed to secure the carrying out of the order or undertaking in question (Australian Consolidated Press Ltd. v. Morgan per Windeyer J. (1965) 112 CLR, at p 499 ). (at p376)

35. The scheme of advertising interests in land without proper disclosure which was adopted by the respondents and which led to various persons who gave evidence before me being misled, calls for the strongest condemnation. But the respondents are not brought before me to be punsished for misleading advertising. They are before me for determination of the questions whether they have breached their undertakings and, if so, what should be done in respect of any such breach. (at p376)

36. In my view, Mr. Matson and Mr. Fairweather each committed a breach of the undertaking he had given, when he failed to refund moneys within twenty-one days to those who completed and posted to the company the appropriate form of claim. At least one claimant who returned a form and who gave evidence before me was not within the terms of the letter of invitation ordered by the court because he was not misled as to either of the two matters mentioned in that letter. However, at least five of the claimants who returned the form and who gave evidence before me were misled and were correct in responding to the invitation. (at p377)

37. Neither the letter ordered by the court to be sent out by the company nor the form of undertaking prescribed any procedure for verification of the fact that any particular claimant was entitled to respond to the invitation in the letter because he had been misled. With claims, some of which were for relatively small amounts because they were in respect of deposits only, it was not to be expected that any elaborate procedure for trial of the issue, whether a claimant had been misled, could be expected to be provided. However, some simple form of verification, as by statutory declaration, would, I think looking back on it, have been advisable. If a method can be devised, application may be made pursuant to the order reserving liberty to apply and the court will have power to make a supplementary order to facilitate the working out of its original order. If agreement can be reached by the parties in advance upon the method, this would no doubt accelerate the disposal of such an application. As I read the undertakings, there was a breach when a claimant who had in fact been misled in one or both of the material respects returned the form and was not paid within twenty-one days. (at p377)

38. In my opinion, the breaches by Mr. Matson and Mr. Fairweather, in the circumstances disclosed by the evidence, were not contumacious. As at present advised, I am not prepared to make an order against either of them for committal to prison on a punitive basis alone. (at p377)

39. I do, however, feel bound to consider whether I can make an order which would secure performance of the undertakings they have given. (at p377)

40. So far as Mr. Matson is concerned, he is now a bankrupt. His assets, whatever they may be, are now vested in the official receiver to be administered for the benefit of his creditors generally in accordance with the provisions of the Bankruptcy Act 1966. He is now unable to perform his undertaking and no order which I can make can, so far as I can see, ensure that he does so. In the circumstances, I believe I should dismiss the application to commit him to prison. (at p377)

41. Counsel for the commission suggested that I should make some form of order against Mr. Matson which would prevent him, for a substantial period of time, from dealing with the public in relation to the sale of goods, services, land or interests in land or other consumer transactions of that type. The period suggested was "in the order of ten years or perhaps a shorter period than that". (at p378)

42. Having heard the evidence of persons who swore they had been misled, I am not unsympathetic to this suggestion, but it appears to me to be misconceived. I am not dealing with the misleading conduct alleged against Mr. Matson in the original proceedings, although some evidence on this issue has been tendered before me in order to show there were proper claimants who should have been paid in pursuance of the undertakings. I am dealing with an application to commit Mr. Matson to prison for breach of the undertakings which he gave the court. Some breaches of the undertakings have been shown but these, as I have said, were not contumacious breaches. Furthermore, it is no longer possible, in view of Mr. Matson's bankruptcy, to make any order which would secure performance of his undertaking. In these circumstances, it does not appear to me that it would be appropriate for me to impose upon him in these proceedings the kind of condition suggested. (at p378)

43. So far as Mr. Fairweather is concerned, I am of opinion the undertaking was given by his counsel with his authority and that he was aware it was binding on him personally. He was not served with a copy of it. The evidence does not enable me to conclude that the detailed terms of the undertaking came to his knowledge prior to the hearing of the present motion. He is shown by the evidence to have committed breaches of his undertaking even though they were not contumacious breaches. Is there any order which it would be appropriate to make against him to secure performance of his undertakings? Mr. Fairweather has the $2,300 lodged in court and the property at Warkworth which, as I have mentioned, has a value which was estimated variously as being from $4,000 to $55,000. (at p378)

44. Counsel for the commission submitted that it should be a condition of any order under which Mr. Fairweather was not committed to prison for contempt, that these amounts be made available in some way, under a scheme to be worked out, to persons who were shown to have been misled. It was suggested that a condition should be framed to require a charge to be given to the commission over the assets with a power of sale, which would secure payment to such persons. It was acknowledged there would have to be some apportionment but suggested it would not be difficult to devise a scheme of procedure under such an order. No scheme was actually placed before the court. (at p378)

45. I believe that in proceedings such as this, directed to securing compliance with an undertaking given to the court, I have power to make an order, short of imprisonment, directed to securing compliance so far as practicable. Furthermore, in the administration of the Trade Practices Act 1974, the court has to deal with matters which involve the public interest and which may, as in this case, involve many people who have suffered loss as the result of breaches of the Act. The commission has responsibilities in relation to the operation of the Act. The court may find itself obliged to mould its procedures and its orders in order to give effect to the Act fairly and effectively. (at p379)

46. However, in the present case, the notice of motion seeks only an order for imprisonment. No notice was given to Mr. Fairweather that an order, in terms of the conditions now proposed, would be sought. The application was made orally by counsel for the commission in his address on the last day of the hearing. Mr. Fairweather has been afforded no real opportunity of meeting it. (at p379)

47. Presumably this Court would have power to issue a writ of sequestration which temporarily places the property of the contemnor in the hands of persons known as sequestrators, who manage property until the contempt is purged, whereupon the property is returned to the contemnor, upon the sequestrators receiving their costs and expenses (Australian Consolidated Press Ltd. v. Morgan per Windeyer J. (1965) 112 CLR, at p 499 ). In the United Kingdom the rules provide that an application for leave to issue a writ of sequestration must be made to a judge by motion (U.K., O. 46, r. 5). There appears to be no corresponding rule in the High Court Rules which apply to proceedings in this Court. Nevertheless, it appears to me that such an application, if made to this Court, should be made by substantive motion. (at p379)

48. Counsel for the commission disclaimed any desire to have a writ of sequestration, the effect of which would be less drastic than the remedy for which he applied. But it appears to me that an application of the kind made orally by him should, no less than an application for a writ of sequestration, be made by substantive motion. If such a motion were brought before the court, it would, of course, depend upon the circumstances then proved. It by no means follows that if an application for such an order had been included in the present motion, the order would have been made on the facts so far shown. Thus, the fact that Mr. Fairweather's failure to carry out his undertaking was not contumacious would have had to be taken into account. So far as the present oral application is concerned, I reject it. (at p379)

49. The order of the court will be, motion dismissed. I make no order as to costs. (at p379)

ORDER

Order accordingly.