Michael Wilson & Partners Ltd v John Forster Emmott

Contempt applications must comply strictly with Civil Procedure Rules 1998, Part 81. The respondent must be told precisely, and succinctly, what conduct is alleged, including the relevant order or undertaking, the date or date range, the act or omission and the supporting evidence. Generalised or unarguable allegations may be struck out or excluded at the permission stage. Delay alone will ordinarily be addressed at the substantive hearing, but stale allegations involving fundamental procedural defects may be rejected early where this is proportionate. A party who has already been given an opportunity to regularise defects will rarely receive further indulgence.

The claimant sought permission to substitute a new contempt application against the defendant and applied to set aside earlier case-management directions. The defendant applied to strike out the contempt proceedings for procedural non-compliance. The allegations concerned alleged breaches of cost undertakings and worldwide freezing orders, many of which had been discharged against the defendant in 2010.

The court considered whether the proposed allegations were sufficiently particularised, whether allegations concerning the Temujin Partnership should await proceedings in New South Wales, whether stale or facially defective allegations should proceed, and whether the set-aside application was totally without merit.

1. Contempt procedure. The court applied the principles in Navigator Equities Limited v Deripaska and Deutsche Bank AG v Sebastian Holdings Inc. An application must comply strictly with Civil Procedure Rules 1998, Part 81. The applicant is confined to proving the allegations stated in the application notice. Procedural fairness must be maintained at a heightened level.
2. Particularity. The application notice must give a succinct, intelligible account of each alleged contempt. The respondent must be able to identify the relevant order or undertaking, the date or date range, the conduct relied upon and the evidence said to prove it. General allegations that assets were dealt with, dissipated or hidden were inadequate. Evidence should be presented in a focused affidavit and coherent bundle rather than through multiple affidavits prepared for other purposes.
3. Early disposal. Although delay, prejudice and potential injustice will generally be considered at trial, fundamental defects and allegations incapable of succeeding on their face should be dealt with early, particularly where numerous allegations would require substantial court and public resources. Allegations based on events after discharge of the relevant freezing orders were not arguable breaches. Allegations depending on proof of the defendant’s membership of the Temujin Partnership also raised proportionality concerns, especially where that issue was shortly to be determined in Australia.
4. Disposition of amendment application. Permission was granted for limited amendments concerning the cost undertakings and one properly capable freezing-order allegation, subject to excision of objectionable material. Permission was refused for the other freezing-order allegations because they were stale, post-dated discharge, lacked particularity, relied on unavailable or inappropriate evidence, or raised immaterial foreign matters. The remaining application was struck out, with directions to be considered for the surviving allegations.
5. Totally without merit. Certification required more than dismissal. The application had to be so flawed that it was bound to fail and should never have been issued. The set-aside application merely attempted impermissibly to re-argue matters already decided and was certified totally without merit.