FEDERAL COURT OF AUSTRALIA

Mensink v Parbery [2018] FCAFC 101

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

2.    The respondents' notice of objection to competency be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1    I have had the advantage of reading the reasons for judgment of Bromwich J. I agree with those reasons and the orders which his Honour proposes, subject to the following matters. Like Wigney J, I do not think it is necessary to determine whether the lack of an endorsement of the type identified in r 41.06 of the Federal Court Rules 2011 (Cth) (the Rules) in relation to the order made on 15 December 2016 provides a defence or answer to the charge of contempt or a defence to the imposition of a particular penalty in relation to that charge. That matter was not relevant to the decision whether or not to issue the arrest warrant in relation to the charge of contempt. That is because, leaving aside a case where, on its face, the charge is plainly not capable of being sustained, the pre-condition to the exercise of the power in r 42.14 to issue an arrest warrant is that an application for punishment of a contempt has been filed or a proceeding has been started for punishment of a contempt, not that the charge meet a particular standard in terms of the merits (see Schnabel v Lui [2002] NSWSC 1184; (2002) 56 NSWLR 119 at [19] per Hamilton J). I should also say in this context that I would not exclude the possibility of a matter coming to the judge's attention about the merits of the charge that might be relevant to the exercise of the discretion whether or not to issue an arrest warrant. However, neither of those rather extreme circumstances apply in this case and the primary judge did not err in the manner suggested by Mr Mensink. The point about the lack of an endorsement requires an analysis of a number of authorities of this Court and may well be the subject of contest later in this proceeding. I refrain from determining the point where it is not necessary to do so for the purposes of resolving this appeal.

2    The comments I have made also apply to the other alleged defect attending the charge and, therefore, the arrest warrant, that is, a failure to serve one of the orders (r 41.07). The point is even stronger here in that it seems to me quite clear that an allegation of non-service of an order is a matter going to the merits of the charge to be determined, ordinarily at least, on the hearing of the charge.

3    The final point is perhaps obvious, but should be made clear. Although Charge 2 in the statement of charge signed by the primary judge may not be capable of being sustained having regard to its terms, I would have thought it capable of a quite simple amendment at or prior to the hearing such as to sustain a charge which, if proved, may be a contempt of court.

Associate:    

Dated:    28 June 2018

REASONS FOR JUDGMENT

WIGNEY J:

4    On 29 March 2017, the primary judge signed two warrants for the arrest of Mr Clive Theodore Mensink. The first (the Examination Warrant) directed the Sheriff to arrest Mr Mensink and bring him before the Court to attend for examination pursuant to earlier orders made by a Registrar and the primary judge. The second (the Contempt Warrant) directed the Sheriff to arrest Mr Mensink and bring him before the Court to answer a charge or charges of contempt of court. The alleged contempt related, in general terms, to Mr Mensink's failure to appear in Court as ordered by a Registrar and the primary judge.

5    Mr Mensink, or at least his solicitors, filed a Notice of Appeal. While the terms of that notice, and the submissions ultimately made in support of it, were unclear and rather confused, ultimately the appeal appeared to be directed at challenging the two arrest warrants. There was no dispute that Mr Mensink had been summoned to appear at an examination on the application of the respondents to the appeal, the liquidators of Queensland Nickel Pty Ltd (in liquidation). He had also been ordered by the primary judge to appear before the Court for examination. There was also no dispute that he had failed to appear. He was overseas at the time and, it would appear, continues to reside overseas. The grounds of challenge to the warrants, for the most part, involved fairly technical arguments concerning the relevant rules of the Court and, ultimately, the rather extraordinary contention that, despite being represented by solicitors and counsel at all material times, Mr Mensink was unaware that he was required to appear before the Court on the days in question.

6    I have had the considerable advantage of reading, in draft, the reasons of Bromwich J. His Honour's careful and detailed summary and analysis of the relevant facts, evidence and contentions of the parties relieves me of the task of rehearsing those matters in detail in these reasons, except where necessary. I should add that Bromwich J's distillation of the facts, issues and contentions should be lauded in light of the fact that the parties bombarded the Court with reams of material, much of which was hopelessly disorganised and ultimately utterly irrelevant to the real issues that are raised by the appeal.

7    As will be seen, I ultimately agree with the orders proposed by Bromwich J. I also agree with his Honour's reasons, except in respect of some fairly minor matters, or matters of emphasis. The following reasons are offered largely for the purpose of further elucidation or elaboration.

8    The parties approached the appeal in a way which tended to conflate the issues relating to the Examination Warrant and the Contempt Warrant. That was productive of a degree of confusion or lack of clarity concerning the relevant issues and principles. The preferable course is to deal with the issues arising in respect of the two warrants separately.

THE EXAMINATION WARRANT

9    The undisputed or ineluctable facts relevant to the Examination Warrant are as follows.

10    On 3 August 2016, a summons for the examination of Mr Mensink was issued pursuant to s 596A of the Corporations Act 2001 (Cth) (the Examination Summons). That summons relevantly required Mr Mensink to attend before this Court on 19 August 2016 to be examined about the examinable affairs of Queensland Nickel.

11    It would appear that the return date of the Examination Summons was adjourned on various occasions by a Registrar.

12    On 15 December 2016, District Registrar Baldwin ordered that the Examination Summons be amended and made returnable on 22 February 2017. The Registrar also made orders for substituted service, including an order that service in accordance with the orders "shall be deemed good and sufficient service" of the Examination Summons upon Mr Mensink.

13    There is no dispute that the Examination Summons was served in accordance with the terms of the orders for substituted service.

14    On 31 January 2017, Mr Mensink swore an affidavit. That affidavit was prepared by a solicitor, Mr Sameh Iskander. It was apparently sworn overseas. The relevant statements made by Mr Mensink in this affidavit are detailed in Bromwich J's reasons. Suffice it to say that, while parts of the affidavit are grammatically confused and confusing, it is abundantly clear that Mr Mensink was well aware of the material terms of the Examination Summons. He was certainly well aware that he had been summoned to appear for examination before the Court on 22 February 2017.

15    On 20 February 2017, Mr Iskander swore and filed an affidavit which annexed a copy of Mr Mensink's affidavit. On the same day, Mr Iskander sent an email to the liquidators' solicitor which stated, rather obliquely, that "I don't have instructions that Mr Mensink will appear this week".

16    On 21 February 2017, Mr Iskander swore another affidavit. It is clear from the terms of the affidavit that, by this time at the very least, Mr Iskander had been retained to act on Mr Mensink's behalf. The affidavit simply stated that Mr Iskander had received a copy of a letter from a doctor, Dr Manish Sagar. A copy of that letter was annexed. Mr Iskander did not state who he received that letter from, or how he received it, or who had instructed him to provide it to the Court. Nor did he say anything in the body of his affidavit about Mr Mensink, or his circumstances, or any communications that Mr Iskander had had with Mr Mensink, or any instructions that he may have had in relation to Mr Mensink's appearance pursuant to the Examination Summons.

17    The contents of Dr Sagar's letter, which is dated 20 February 2017, are detailed in Bromwich J's reasons. It is sufficient to note that it is abundantly clear from its contents that Dr Sagar had been asked to prepare the letter so that it could be provided to the Court in response to the Examination Summons. Importantly, while it referred to various "medical issues" that Mr Mensink supposedly had, it stated that Dr Sagar did not think that Mr Mensink's medical conditions precluded him from travelling, though it did state that Dr Sagar thought that Mr Mensink's "clinical depression and anxiety disorder … make it difficult for him [Mr Mensink] to function properly in a stressful environment such as a legal examination".

18    There is no dispute that Mr Mensink did not attend Court on 22 February 2017 as required by the Examination Summons. There is no suggestion that Mr Iskander, or anyone else, appeared on Mr Mensink's behalf to proffer any explanation for Mr Mensink's non-attendance, or to make any application on his behalf. District Registrar Belcher ordered that the question of whether an arrest warrant addressed to Mr Mensink should be issued by the Court be referred to the primary judge. The Registrar also adjourned the examination to a date to be fixed.

19    On 23 and 24 February 2017, counsel instructed by Mr Iskander appeared on behalf of Mr Mensink before the primary judge. After considerable debate, the primary judge declined to order that a warrant for Mr Mensink's arrest issue at that time. Instead, on 27 February 2017, the primary judge made orders which relevantly included an order that, pursuant to s 596A of the Corporations Act, Mr Mensink attend before a Deputy Registrar of the Court on 27 March 2017 for the purpose of complying with the order made by District Registrar Baldwin on 15 December 2016.

20    The full terms of the orders made by the primary judge on 27 February 2017 are set out in Bromwich J's reasons. The following matters relevant to the Examination Warrant should be noted.

21    First, while his Honour declined to issue a warrant for Mr Mensink's arrest having regard to his failure to attend in answer to the Examination Summons on 22 February 2017, there is nothing to suggest that his Honour accepted that Mr Mensink had any, let alone any reasonable, cause or excuse for not attending as required. There is also nothing to suggest that his Honour decided that a warrant would never issue as a result, in whole or part, of the fact that Mr Mensink did not appear as required on 22 February 2017. Nor did his Honour make any order which had the effect of releasing or excusing Mr Mensink from any liability that might arise from his failure to attend on that day. Rather, it would appear that his Honour was simply giving Mr Mensink a further opportunity to appear on a further return date of the summons. His Honour left open the possibility of issuing a warrant if Mr Mensink did not appear on the next occasion.

22    Second, the orders were stated to be conditional upon certain things occurring, including the liquidators' solicitors providing Mr Mensink's solicitors with an air ticket from an airport in Europe nominated by Mr Mensink or his solicitors. As will be seen, that condition was never satisfied, no doubt because neither Mr Mensink nor his solicitors nominated any European airport.

23    Third, the terms of the order that Mr Mensink appear before a Deputy Registrar on 27 March 2017 "for the purpose of complying with the order made by District Registrar Baldwin on 15 December 2016" are somewhat unfortunate. The orders made by District Registrar Baldwin on 15 December 2016 did not require Mr Mensink to do anything. Those orders relevantly amended the Examination Summons and specified that the return date for that summons was 22 February 2017. While the general effect of the orders made by the primary judge on 27 February 2017 may have been to fix a further return date for the Examination Summons, it is nevertheless difficult to see how it could be said that any attendance by Mr Mensink on 27 March 2017 could be for the purpose of complying with the orders made by District Registrar Baldwin. It would have been preferable for the primary judge's orders to have specified that the attendance by Mr Mensink on 27 March 2017 was required for the purpose of complying with the Examination Summons.

24    Some other relevant matters to note concerning the orders made on 27 February 2017 will be discussed later in the context of the Contempt Warrant.

25    It should also be noted at this stage that, on 24 February 2017, a "Notice of acting – appointment of lawyer" was filed on Mr Mensink's behalf. It formally recorded that Mr Iskander had been appointed to represent Mr Mensink. It also recorded that Mr Iskander's office was Mr Mensink's address for service.

26    On 6 March 2017, an interlocutory application was filed on behalf of Mr Mensink. The orders sought included an order setting aside the orders made by the primary judge on 27 February 2017. Mr Iskander swore and filed an affidavit on 3 March 2017 in support of that application. The limited and rather unsatisfactory terms of that affidavit have been considered at some length by Bromwich J. It stated no more than that Mr Iskander had rung an undisclosed telephone number and left messages for Mr Mensink concerning the orders that had been made by the primary judge. Mr Iskander said that he had received no communication in response to or as a result of his messages.

27    The interlocutory application to set aside the orders made by the primary judge on 27 February 2017 was heard by the primary judge on 8 March 2017. Counsel instructed by Mr Iskander appeared for Mr Mensink. The primary judge dismissed the application. Mr Mensink did not appeal that decision.

28    There is no dispute that Mr Mensink did not attend before a Deputy Registrar on 27 March 2017. Nor did he appear before the primary judge that afternoon, when the matter was referred to his Honour for consideration of whether a warrant for Mr Mensink's arrest should issue. Rather, Mr Iskander appeared before the primary judge on Mr Mensink's behalf.

29    The liquidators asked the primary judge to issue a warrant pursuant to r 11.10 of the Federal Court (Corporations) Rules 2000 (Cth). That rule provides as follows:

11.10 Default in relation to examination

(1)    This rule applies if a person is summoned or ordered by the Court to attend for examination, and:

(a)    without reasonable cause, the person:

(i)    fails to attend at the time and place appointed; or

(ii)    fails to attend from day to day until the conclusion of the examination; or

(iii)    refuses or fails to take an oath or make an affirmation; or

(iv)    refuses or fails to answer a question that the Court directs the person to answer; or

(v)    refuses or fails to produce books that the summons requires the person to produce; or

(vi)    fails to comply with a requirement by the Court to sign a written record of the examination; or

(b)    before the day fixed for the examination, the person who applied for the summons or order satisfies the Court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond.

(2)    The Court may:

(a)    issue a warrant for the arrest of the person summoned or ordered to attend for examination; and

(b)    make any other orders that the Court thinks just or necessary.

30    Mr Iskander swore an affidavit on 27 March 2017 and relied on it in opposing the issue of a warrant for the arrest of Mr Mensink. Mr Iskander's 27 March 2017 affidavit was in terms which were as ambiguous and unsatisfactory as his 3 March 2017 affidavit.

31    As Bromwich J has explained, it is tolerably clear that Mr Iskander had most likely been in email contact with Mr Mensink, at least in January 2017, when Mr Iskander prepared Mr Mensink's 31 January 2017 affidavit. Mr Iskander said nothing in his affidavit about making any attempt to contact Mr Mensink by email or any other electronic means. To make matters worse, Mr Iskander opposed being cross-examined by the liquidators' counsel in relation to his affidavit. His opposition was based on the fact that he was also appearing for Mr Mensink. He suggested that he might need legal advice about whether it was appropriate for him to "withdraw" if he was to be cross-examined. As events transpired, Mr Iskander was not cross-examined. Nor did he "withdraw". Rather, he made submissions on Mr Mensink's behalf. He did not, however, reveal the source or basis of his instructions to make those submissions in circumstances where he appeared to be suggesting that he had been unable to get in contact with Mr Mensink.

32    In any event, the only submission of substance made by Mr Iskander in opposition to the issue of a warrant for Mr Mensink's arrest was that a warrant would have no utility because "it's not something that is a mechanism that is able to bring him back at this point in time". Mr Iskander did not submit that Mr Mensink had a reasonable excuse for not attending, either on 22 February 2017 when the Examination Summons was returnable, or on 27 March 2017.

33    The primary judge ordered that a warrant issue pursuant to r 11.10 of the Corporations Rules. That warrant, which the primary judge signed on 29 March 2017, was in the following terms:

Arrest Clive Theodore Mensink and bring him before the Court to attend for examination pursuant to the orders made by District Registrar Baldwin of 15 December 2016 and the Honourable Justice Dowsett on 27 February 2017.

34    The following matters should be noted about the terms of the Examination Warrant.

35    First, it refers to both the orders made by District Registrar Baldwin on 15 December 2016 and the orders made by the primary judge on 27 February 2017.

36    Second, as noted earlier in the context of the orders made by the primary judge on 27 February 2017, the orders made by District Registrar Baldwin on 15 December 2016 did not, strictly speaking, require Mr Mensink to appear for examination on 22 February 2017. It was the Examination Summons which required Mr Mensink to appear for examination.

Grounds of challenge to the Examination Warrant

37    It should be noted that the Notice of Appeal filed on Mr Mensink's behalf did not directly refer to the Examination Warrant. Rather, the appeal was from the order made by the primary judge orally on 27 March 2017 that an arrest warrant should issue. It does not appear that that order was ever entered as required by r 39.31(1)(d) of the Federal Court Rules 2011 (Cth). Neither party took any point concerning the fact that the order was never entered. That may at least in part have been because the arguments advanced on Mr Mensink's behalf were in substance directed at the issue of the Examination Warrant, rather than the order. It is appropriate to approach the appeal on that basis.

38    It was contended, on Mr Mensink's behalf, that the primary judge erred in issuing the Examination Warrant for essentially three reasons.

39    First, it was contended that there was no evidence and no proper basis upon which the primary judge could conclude that the appellant had either notice of the orders made by District Registrar Baldwin on 15 December 2016 or the orders made by the primary judge on 27 February 2017. It was submitted that before an arrest warrant can issue under r 11.10 of the Corporations Rules, it must be established that the summons or order that required the examinee to attend Court for examination was "conveyed to or served on" the examinee. He relied, in support of that proposition, on the judgment of Brereton J in Ian Lawrence Struthers (in his capacity as liquidator) of PACI Pty Ltd [2005] NSWSC 864. He also submitted that "notice" of the order was required by r 41.07 of the Federal Court Rules.

40    Second, it was contended that the primary judge failed to consider, or adequately consider, whether Mr Mensink failed to attend the examination "without reasonable cause" as required by r 11.10. It was submitted that there was no proper basis upon which the primary judge could conclude that the appellant did not have reasonable cause for not attending. Indeed, it was even suggested that the only reasonable inference that was available was that Mr Mensink did have reasonable cause to attend. It was contended, in that regard, that Mr Mensink's 31 January 2017 affidavit revealed that he did not have a proper understanding of his obligation to attend. It was also said that Mr Mensink's medical condition, as revealed in Dr Sagar's letter, provided an excuse or justification for his non-attenance.

41    Third, it was contended that the primary judge erred in the exercise of his discretion to issue a warrant under r 11.10 because his Honour failed to have regard to material considerations. Those considerations were said to be that there was no evidence that Mr Mensink was aware of the "penal consequence" of the failure to attend the examination, and that Mr Mensink's medical condition explained why he had not been in contact with his solicitor.

Did the primary judge err in issuing the Examination Warrant as contended?

42    The short answer to this question is "no". The primary judge did not err, as contended on Mr Mensink's behalf, in issuing the Examination Warrant. None of the contentions or submissions advanced on Mr Mensink's behalf has any merit.

43    As for the contention that Mr Mensink had no notice of the relevant orders, it is at least doubtful that a warrant cannot issue pursuant to r 11.10 unless it is proved that the relevant examination summons or order was served on the examinee. In Struthers, it was unnecessary for Brereton J to decide whether proof of service of the summons was necessary before a warrant could issue under r 11.10. That is because the summons in Struthers had been served. In the passage relied on by Mr Mensink, Brereton J said only that "[i]n so far as it is implicit in the concept of a person being summoned that the summons be conveyed to or served on the examinee…". That is hardly an emphatic statement that proof of service was necessary.

44    Rule 11.10 does not expressly provide that it is necessary to prove that the summons or order was served before a warrant can issue. Nor is that requirement necessarily implicit in the concept of a person being "summoned or ordered by the Court to attend for examination". A summons can be issued, and a person can be ordered to attend for examination, without the summons or notice being served. The better view is that proof that the summons or order was brought to the attention of the proposed examinee is relevant to the element relating to reasonable cause. A person who had not been served, or who had not had the summons or order brought to their attention, would no doubt most likely have a reasonable excuse for not attending. That, however, is a different issue.

45    In any event, there was ample evidence or other material before the primary judge to support a finding that Mr Mensink well knew that he had been summoned or ordered to attend for examination on both 22 February 2017 and 27 March 2017.

46    The position is clearest in relation to the requirement for Mr Mensink to appear for examination on 22 February 2017. The first point to note in that regard is that the Examination Summons must be taken to have been served on Mr Mensink. He was served in accordance with the orders for substituted service. The second point is that, as was discussed in detail earlier, it is abundantly clear from the terms of Mr Mensink's 31 January 2017 affidavit that he was well aware of the Examination Summons, and the order for substituted service, and the fact that he had been summoned to attend for examination on 22 February 2017. The suggestion that he did not have a proper understanding of his obligations in that regard is fanciful, if not absurd. He had unquestionably been in contact with Mr Iskander in relation to that very point. It was Mr Iskander who had prepared Mr Mensink's affidavit.

47    It should be noted in this context that it was not contended on Mr Mensink's behalf, either in the Notice of Appeal or in the submissions made on his behalf, that the Examination Warrant was invalid because it referred to Mr Mensink being required to attend for examination pursuant to the orders made by District Registrar Baldwin on 15 December 2016, as opposed to pursuant to the Examination Summons. As has already been noted, the orders made by District Registrar Baldwin, strictly speaking, did not require Mr Mensink to attend for examination. They did, however, relevantly amend the Examination Summons to so provide, and also made it clear that, the Examination Summons was returnable on 22 February 2017.

48    As for the orders made by the primary judge on 27 February 2017, while there may have been no direct evidence that those orders were personally served on or conveyed to Mr Mensink, the inference that Mr Mensink had sufficient notice of the effect of the orders, at least for the purposes of r 11.10, was and is inescapable from the circumstances surrounding the making of the order, as well as from subsequent events. The following circumstances are of particular significance.

49    As has already been noted, Mr Mensink was well aware that he was required to attend for examination on 22 February 2017. It may also be inferred that he was aware that if he did not appear, the Court would be likely to make further orders to secure his attendance at an examination at some stage in the future. It could scarcely be suggested that he would have believed that the requirement for him to attend for examination would simply go away. The events that followed also support the inference that Mr Mensink was well aware that further orders would most likely be made, and were in due course made.

50    Shortly after he failed to attend Court on 22 February 2017, Mr Mensink formally appointed Mr Iskander to represent him in the proceeding. Mr Iskander's office was notified as being Mr Mensink's address for service. Mr Iskander and counsel briefed by him appeared for Mr Mensink in the proceedings on 23 and 24 February 2017 which concerned, amongst other things, what should follow from Mr Mensink's non-attendance. Mr Iskander and counsel were also present when the orders were announced orally by the primary judge on 24 February 2017, though they were not reduced to writing until 27 February 2017. Mr Iskander subsequently filed an interlocutory application to set aside the 27 February 2017 orders on Mr Mensink's behalf. Mr Iskander and counsel briefed by him subsequently appeared at the hearing of that interlocutory application. No attempt was made to explain exactly how Mr Iskander could have obtained instructions to file and prosecute that interlocutory application if Mr Mensink was unaware of the very orders that were the subject of it.

51    Against the considerable weight of the circumstances that pointed to the fact that Mr Mensink was likely to have been aware of the effect of the 27 February 2017 orders, some reliance was placed on Mr Iskander's affidavit of 3 March 2017. For the reasons already given, that affidavit raised more questions than it answered; questions that Mr Iskander was also not prepared to answer, given his opposition to being cross-examined. So too did Mr Iskander's continuing appearance for Mr Mensink throughout the entire saga. Even if nobody answered the telephone calls that Mr Iskander says he made, it is clear that he continued to receive instructions to act on Mr Mensink's behalf, including in relation to the application to set aside the very orders that it is now claimed Mr Mensink was ignorant of.

52    Reliance was also placed on some observations made by the primary judge during the hearing on 24 February 2017. Those observations, however, did not amount to a positive finding that Mr Mensink was unaware of the 27 February 2017 orders. Indeed, his Honour indicated that there was no evidence that Mr Mensink did not know that the proceedings were on foot. More significantly, it is tolerably clear that the primary judge was satisfied that, even if there may have been no direct evidence that Mr Mensink was aware of the terms of the 27 February 2017 orders, that situation could only have come about if Mr Mensink had deliberately refrained from contacting his solicitor following his initial non-attendance. That circumstance would, in turn, support the inference that, for all intents and purposes, Mr Mensink knew that a further order would be made requiring his attendance, and deliberately turned a "blind eye" to that eventuality. That would, in the circumstances, be tantamount to actual knowledge.

53    It follows that, even if it had been necessary for the primary judge to be satisfied that the 27 February 2017 orders had been "conveyed to or served on" Mr Mensink, there was sufficient evidence to support the inference that Mr Mensink was sufficiently on notice of the substance or effect of the orders, such that it could be concluded that they had been relevantly conveyed to him. They had, at the very least, been conveyed to his solicitor, whose office was Mr Mensink's address for service. It should also be noted, in that regard, that in Struthers, Brereton J accepted that the requirement that a summons be served on an examinee was met where the summons was sent to a solicitor who had instructions to accept service on behalf of the examinee. His Honour did not suggest that it was necessary to prove that the examinee had actual notice of the summons. In any event, in this matter, for the reasons already given, it would have been open to the primary judge to infer that Mr Mensink was relevantly aware of the terms or effect of the 27 February 2017 orders.

54    It should finally be noted, in relation to the contention that Mr Mensink was not aware of the terms of the 27 February 2017 orders, that, even if there was some merit in that contention, it would not follow that the Examination Warrant should be set aside. That is because Mr Mensink's failure to attend Court on 22 February 2017 as required by the Examination Summons was capable of providing an independent basis for the Examination Warrant. For the reasons already given, Mr Mensink was plainly aware of the requirement for him to attend on 22 February 2017. Were it necessary to do so, the reference in the Examination Warrant to the orders of 27 February 2017 could readily be severed.

55    The contention advanced on Mr Mensink's behalf that the liquidators had not demonstrated that Mr Mensink's failure to attend in answer to the summons and orders was "without reasonable cause" as required by r 11.10 also has no merit. If anything, the contents of Mr Mensink's 31 January 2017 affidavit and the letter from Dr Sagar tended to suggest that Mr Mensink had no reasonable cause to refuse to attend for examination as he was required to do.

56    As for Mr Mensink's affidavit, it is noteworthy that nowhere in his affidavit does Mr Mensink say that he was unable to attend the examination on 22 February 2017. He simply said, in effect, that it was inconvenient to him to attend given his travel plans. He said nothing about his medical condition preventing him from attending. While Mr Mensink may have had travel plans, it was not for him to unilaterally decide that those plans gave him reasonable cause not to attend the examination. As for Dr Sagar's letter, its contents clearly indicated that Mr Mensink's medical condition did not prevent him from travelling, and therefore did not provide any justification for him not to return to Australia. And even if Mr Mensink's medical condition may have made it difficult to "function properly" at an examination, that was no doubt something that could have been managed at the examination had Mr Mensink attended as he was required to do.

57    Two further points should be made in relation to the question whether the liquidators' had discharged their onus of proving that Mr Mensink's failure to attend was without reasonable cause.

58    First, in Struthers, Brereton J said (at [44]), in relation to the onus of negativing reasonable cause, that "since knowledge of the cause is in the possession almost exclusively of the Examinees, relatively slight evidence would be required to discharge that onus". Thus, it was open to the primary judge to be satisfied that Mr Mensink did not have reasonable cause on the basis of only "slight evidence".

59    Second, Mr Iskander, who appeared on behalf of Mr Mensink on 27 March 2017, did not submit that the material that was before the primary judge demonstrated that Mr Mensink did have reasonable cause for failing to attend either on 22 February or 27 March 2017.

60    In all the circumstances, there was plainly sufficient material before the primary judge for him to be satisfied that Mr Mensink's failure to attend was without reasonable cause.

61    The contention that the primary judge failed to have regard to relevant considerations when ordering a warrant to issue pursuant to r 11.10 of the Corporations Rules is equally unmeritorious. There was no evidence that Mr Mensink was unaware of the "penal consequence" of failing to attend for examination, either pursuant to the summons or the primary judge's orders of 27 February 2017. The Examination Summons contained a note that "[i]f you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice". As discussed earlier, there is little doubt that Mr Mensink was aware of the Examination Summons and had been in contact with Mr Iskander concerning it. If Mr Mensink did not understand anything about his obligations under the summons, or the potential repercussions of not attending as required by it, he could simply have asked Mr Iskander.

62    It should also be noted, in this context, that the apparent suggestion that the summons was required to include the endorsement specified by r 41.06 of the Federal Court Rules has no proper foundation. As Brereton J found in Struthers, r 11.10 is an "independent source of power" to issue an arrest warrant. Rule 41.06 relates to the exercise of the Court's powers in relation to contempt.

63    As for Mr Mensink's medical condition, there could be no doubt that the primary judge was aware of, and had regard to, the limited evidence concerning that matter. There could be little doubt that his Honour considered that Mr Mensink's supposed medical conditions, properly weighed on the balance, did not provide a proper basis for refusing to make an order under r 11.10 of the Corporations Rules.

64    It follows that Mr Mensink's grounds of challenge to the issue of the Examination Warrant have no merit. It was open to the primary judge on the material before the Court to issue the Examination Warrant pursuant to r 11.10 of the Corporations Rules on the basis of Mr Mensink's failure to attend Court in compliance with either the Examination Summons or the orders made by the primary judge on 27 February 2017. There is no basis for the contention that the primary judge erred in any way in issuing the Examination Warrant.

THE CONTEMPT WARRANT

65    The facts relevant to the Contempt Warrant include all those considered earlier in the context of the Examination Warrant.

66    As has already been discussed at length, when Mr Mensink failed to appear on 27 March 2017, the primary judge ordered that a warrant issue pursuant to r 11.10 of the Corporations Rules. On the same day, the liquidators made an oral application that Mr Mensink be committed for contempt. The primary judge adjourned that application to 28 March 2017, by which time the liquidators were expected to file an interlocutory application seeking that relief. That was, in due course, attended to. Mr Mensink was again represented by Mr Iskander at the hearing of that interlocutory application on 28 March 2017.

67    On 28 March 2017, the primary judge signed a statement of charge which charged Mr Mensink with contempt of court. His Honour also made a number of orders. Those orders included, relevantly, an order for substituted service of the interlocutory application, supporting affidavit and statement of charge; an order that Mr Mensink pay costs on an indemnity basis in respect of the hearings on 27 March 2017; and an order that the Contempt Warrant issue.

68    The full text of the statement of charge and the orders made by the primary judge on 28 March 2017 are set out in the judgment of Bromwich J. The following points should be made in relation to them.

69    First, the issue of the Contempt Warrant should be considered separately to the issue of the Examination Warrant, even though the underlying facts and circumstances that led to the issue of the two warrants overlap. That is because they were governed by different rules and principles. The parties, in their submissions, however, tended to conflate and confuse the two warrants.

70    Second, the statement of charge was filed pursuant to the requirement in r 42.12(a) of the Federal Court Rules. It is part of the procedure for filing an application for punishment for an alleged contempt. Mr Mensink's Notice of Appeal did not directly challenge the statement of charge, or the fact that the primary judge signed it. It was, however, contended that the statement of charge was defective.

71    Third, the statement of charge contains two separate charges. The first charge relates to the failure of Mr Mensink to attend Court on 27 March 2017 in accordance with the orders made by the primary judge on 27 February 2017. The second charge relates to Mr Mensink's failure to appear in Court on 22 February 2017 in accordance with the orders made by District Registrar Baldwin on 15 December 2016. It is, however, clear from the particulars of the second charge that the relevant requirement to attend was to be found in the Examination Summons.

72    Fourth, while the Notice of Appeal challenges orders 1, 2, 3, 6, 8, 9 and 10 made by the primary judge on 28 March 2017, all of the arguments advanced on Mr Mensink's behalf were essentially directed to order 9, which was an order that a warrant issue for the arrest and detention of Mr Mensink until he is brought before the Court. In those circumstances, Mr Mensink may be taken to have abandoned any challenge to the balance of the orders. The only question is whether the primary judge erred in issuing the Contempt Warrant.

73    Fifth, the Contempt Warrant was in the following terms:

To the Sheriff:

1.    Arrest Clive Theodore Mensink and bring him before the Court to answer the charge set out below.

Clive Theodore Mensink is charged with contempt of court in that:

1.    On 27 February 2017, Justice Dowsett ordered Mr Mensink to attend before a Deputy Registrar of the Court at Brisbane at 9.30am on Monday 27 March 2017, for the purpose of complying with the order made by District Registrar Baldwin on 15 December 2016.

2.    Mr Mensink did not attend as ordered.

3.    On 15 December 2016, District Registrar Baldwin issued an amended examination summons requiring Mr Mensink to attend before the Federal Court at Brisbane at 9.30am on 22 February 2017 to be examined about the examinable affairs of Queensland Nickel Pty Ltd.

4.    Mr Mensink did not attend as ordered.

Grounds of challenge to the Contempt warrant

74    It was contended, on Mr Mensink's behalf, that the primary judge erred in issuing the Contempt Warrant for essentially three reasons.

75    First, it was contended that there was no evidence and no proper basis upon which the primary judge could conclude that Mr Mensink had notice of the orders which required Mr Mensink to attend Court on 22 February 2017 and 27 March 2017. It was submitted that r 41.07 of the Federal Court Rules mandated that an order falling within r 41.06 must be served personally on the person bound to comply with the order unless the person was present in Court when the order was made or was notified of the terms of the order orally, by telephone or electronically. It was contended, in that context, that the orders made by the primary judge on 27 February 2017 were not personally served on Mr Mensink and that charge 1 in the statement of charge was accordingly defective.

76    Second, it was contended that the orders made on 15 December 2016 were not endorsed as required by r 41.06 of the Federal Court Rules. It was submitted, in that context, that the second charge in the statement of charge was therefore defective.

77    Third, it was contended that the primary judge erred in issuing the Contempt Warrant because the primary judge failed to consider, or adequately consider, whether Mr Mensink was likely to abscond or otherwise withdraw from the jurisdiction of the Court as required by r 42.14(2) of the Federal Court Rules. It was also submitted that there was no proper basis upon which the primary judge could have found that Mr Mensink was likely to abscond or otherwise withdraw from the jurisdiction within the meaning of r 42.14(2) of the Federal Court Rules.

Did the primary judge err in issuing the Contempt Warrant?

78    The short answer to this question is again "no". The primary judge did not err, as contended on Mr Mensink's behalf, in issuing the Contempt Warrant. None of the contentions or submissions advanced on Mr Mensink's behalf has any merit.

79    For the reasons already given, the material before the primary judge clearly indicated that Mr Mensink was aware of the Examination Summons and was aware that it required him to attend Court for examination on 22 February 2017. That was clear enough from the contents of Mr Mensink's 31 January 2017 affidavit, which had been prepared and filed by Mr Iskander on Mr Mensink's behalf. Mr Mensink was also taken to have been served with the Examination Summons because it had been served in accordance with the orders for substituted service.

80    Likewise, for the reasons already given, the material before the primary judge was sufficient to support an inference that Mr Mensink had sufficient or effective notice of the 27 February 2017 orders made by the primary judge. It is unnecessary to rehearse all the circumstances that point to the fact that Mr Mensink was effectively on notice of the 27 February 2017 orders and the requirement that he attend Court on 27 March 2017.

81    The more difficult question is whether the material before the primary judge was sufficient to support a finding that Mr Mensink had been "notified of the terms of the [27 February 2017] order orally, by telephone or electronically" within the meaning of r 41.07(2)(b) of the Federal Court Rules. There was no suggestion that Mr Mensink had been personally served for the purposes of r 41.07(1), or that he was present when the order was made for the purposes of r 41.07(2)(a) of the Federal Court Rules.

82    An even more difficult question is whether, if Mr Mensink was not served with the 27 February 2017 orders in accordance with r 41.07, that would be fatal to the first charge of contempt in the statement of charge.

83    Ultimately, however, it is unnecessary, for the purposes of the appeal, to finally resolve either of those questions. They are no doubt questions that may need to be considered and determined at the final hearing of the contempt charges against Mr Mensink if he defends the first charge in the statement of charge on the basis that he was not notified of the orders made on 27 February 2017, as required by r 41.07 of the Federal Court Rules. The fact that Mr Mensink may ultimately raise that defence, and may even have reasonable grounds to raise it, does not mean that the statement of charge was, or is, defective as was contended on Mr Mensink's behalf. Nor does it mean that the primary judge erred in issuing the Contempt Warrant.

84    The power to issue an arrest warrant under r 42.14 arises, relevantly, when an application for punishment of a contempt has been filed. It is not necessary for the party making the application or charge to prove a prima facie case; nor is the strength or weakness of the case a relevant consideration: Schnabel v Lui [2002] NSWSC 1184; (2002) 56 NSWLR 119 at [14]. While it may be the case that the Court would refuse to issue a warrant under r 42.14 if the application or statement of charge was demonstrably defective, bad in form or hopeless, that could not be said to be the case here. It was at least reasonably arguable that it could be inferred, from all the surrounding facts and circumstances, that Mr Mensink had been notified of the terms of the 27 February 2017 orders either orally, by telephone or electronically, even if the precise basis upon which he was so notified may have been unclear.

85    The same could perhaps be said about the question whether the apparent non-compliance with r 41.06 was fatal to the second charge in the statement of charge. There was no dispute that the orders made on 15 December 2016 were not endorsed in accordance with r 41.06 of the Federal Court Rules. Nor was the Examination Summons, though it did contain a note warning the examinee of the potential repercussions if he or she did not attend in compliance with the summons. Does it follow that the second charge was defective or doomed to fail?

86    There would appear to be conflicting authority in respect of that issue. At the very least the position is unclear. Greenwood J in Mason v MWREDC Limited [2012] FCA 1083 at [47] noted that, with the exception of r 41.08(3), neither r 41.07 nor r 41.08 contain any express prohibition in relation to the enforcement of an order by committal, sequestration or punishment for contempt. Rule 41.08(3) is not relevant here because it relates to committal or sequestration orders where the person in default is a corporation or organisation. His Honour also found (at [49]) that notification under r 41.07(2) does not, in terms, require notification of the consequences of non-compliance with the order. His Honour did not, however, appear to decide that an order notified in accordance with r 41.07(2) could be enforced by way of contempt proceedings if the order itself did not include an endorsement in accordance with r 41.06.

87    In Titan Support Systems Inc v Minh Hoang Nguyen (No 2) [2015] FCA 359, Murphy J agreed generally with what Greenwood J had said in Mason, but clearly held (at [28]) that unless the required endorsement is included in the order served, or otherwise notified in accordance with Division 41.1 of the Federal Court Rules, the order may not be enforced by way of punishment for contempt.

88    In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2015] FCA 1275; (2015) 238 FCR 209, however, Jagot J stated (at [16]) that "[r]ule 41.06 is not a pre-condition to enforcement of an order by punishment for contempt". Her Honour went on to note that the endorsement requirement in r 41.06 could, if necessary, be dispensed with pursuant to r 1.34 of the Federal Court Rules.

89    Unlike Bromwich J, I am not persuaded that it is necessary to resolve the apparent conflicting authorities on this point for the purposes of this appeal. Nor am I persuaded that it is desirable to do so.

90    As has already been made clear, there was no question that neither the orders made on 15 December 2016, nor the Examination Summons, contained an endorsement in accordance with r 41.06. The question whether that was or is fatal to the second contempt charge in the statement of charge, or whether the requirement in r 41.06 could and should be dispensed with pursuant to r 1.34, is, however, not a question that needs to be decided in this appeal. That question is likely to arise, and will then need to be decided, at the final hearing of the contempt charges against Mr Mensink. The fact that Mr Mensink may defend the second contempt charge on the basis of non-compliance with r 41.06, and may even have a reasonably arguable defence on that basis, does not, however, mean that the second charge in the statement of charge was, or is, defective as contended by Mr Mensink. Nor does it mean that the primary judge erred in issuing the Contempt Warrant. That is again because, putting r 42.14(2) to one side for the moment, the only relevant precondition to the issue of a warrant under r 42.14 is that an application for punishment of a contempt has been filed. It is unnecessary for the applicant to show a prima facie case, let alone a strong case.

91    It should also be noted that, even if the second charge was hopeless or defective because of the apparent non-compliance with r 41.06, it does not follow that the Contempt Warrant was bad and should not have been issued. If the second charge was hopeless or defective, the reference to it in the Contempt Warrant could be severed.

92    The final issue to consider is whether the primary judge erred in issuing the Contempt Warrant because his Honour appears not to have been referred to, or to have considered, the terms of r 42.14(2) and whether, in any event, there was no basis to find that Mr Mensink was "likely to abscond or otherwise withdraw from the jurisdiction of the Court".

93    The issue, at least in the circumstances of this matter, does not turn so much on the meaning of the words "abscond" and "withdraw" in the context of r 42.14(2). It may be accepted that "abscond" generally implies fleeing the jurisdiction in order to avoid the punishment which might follow from a proved contempt, and that "withdraw" implies leaving the jurisdiction for reasons other than avoiding legal process or the likely results of it: cf. Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641 at 644; Schnabel v Lui at [10], [17]. The issue that arises in Mr Mensink's case is whether, at the time the Contempt Warrant was applied for and made, the Court could have been satisfied that Mr Mensink was likely to abscond or withdraw given that he had left the jurisdiction some months earlier. Can a warrant issue under r 42.14 when the alleged contemnor has already absconded or otherwise withdrawn from the jurisdiction?

94    While at first blush the terms of r 42.14(2) would appear to be mainly directed at the question whether the person charged will abscond or withdraw from the jurisdiction at some time in the near future, it should nonetheless be construed beneficially so as to permit the issue of a warrant in circumstances where the person has already left the jurisdiction and has evinced an intention not to return in the near future. It could be said, in those circumstances, that the person charged is "likely to … withdraw from the jurisdiction", in the sense that the person is likely to continue to stay away and remain out of the jurisdiction. The word "withdraw", more so than "abscond", implies or connotes an ongoing state of affairs, such that a person who has already left the jurisdiction may be said to be likely to "withdraw" if they evince an ongoing intention not to return to the jurisdiction either indefinitely or for some considerable length of time. There is no sound reason why a warrant under r 42.14(2) should not be issued in such circumstances.

95    Construed in that way, it was open to the primary judge to be satisfied on the material that was before the Court that it was likely that Mr Mensink would withdraw from the jurisdiction within the meaning of r 42.14(2) of the Federal Court Rules. Mr Mensink was aware that the Examination Summons required him to attend Court on 22 February 2017, but did not return to Australia to comply with that requirement. Likewise, for the reasons already given, it was open to infer that Mr Mensink was aware of the effect of the orders made by the primary judge on 27 February 2017, yet he chose to remain outside Australia. And while Mr Mensink's 31 January 2017 affidavit referred to him returning to Australia in July 2017, by the time the application for the Contempt Warrant was made on 28 March 2017, it was plainly open to the primary judge to be satisfied that Mr Mensink intended to remain outside Australia for so long as there was any prospect of him being required to attend an examination, or for so long as there was any prospect of him being punished for contempt for not attending Court as required by the Examination Summons and the orders made by the primary judge. In those circumstances, it was open to the primary judge to be satisfied that it was likely that Mr Mensink would withdraw from the jurisdiction, in the sense that he would continue to remain outside Australia either indefinitely, or for a considerable length of time.

96    It is, in all the circumstances, immaterial that the primary judge was not taken specifically to the terms of r 42.14 at the hearing on 28 March 2017. It should be noted, in that context, that Mr Iskander did not oppose the issuing of the warrant on the basis that the primary judge could not have been satisfied that the condition in r 42.14 had been met.

97    It is equally immaterial that his Honour did not specifically advert to the requirements of r 42.14 when making the orders. His Honour was not asked to, and did not, give reasons, for ordering a warrant to issue. There could be little or no doubt that, while the primary judge did not say so in terms, his Honour had clearly formed the view that Mr Mensink intended to remain out of the jurisdiction to avoid being examined and to avoid being punished for contempt. The circumstances were, it must be said, so obvious that they did not need to be expressly articulated, either in terms of r 42.14(2) or otherwise.

98    It follows that the primary judge did not err in issuing the Contempt Warrant for any of the reasons, or on any of the grounds, advanced on Mr Mensink's behalf.

CONCLUSION AND DISPOSITION

99    It has not been demonstrated that the primary judge erred in ordering that the Examination Warrant issue under r 11.10 of the Corporations Rules, or that the Contempt Warrant issue under r 42.14 of the Federal Court Rules. It follows that I agree with Bromwich J that the appeal should be dismissed with costs.

Associate:

Dated:    28 June 2018

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

100    This appeal principally concerns the validity of orders made by a judge of this Court, pursuant to which warrants were issued for the arrest of the appellant, Mr Clive Theodore Mensink, in relation to examinations for the purposes of a special purpose liquidators' investigation into Queensland Nickel Pty Ltd.

101    On 27 March 2017, the primary judge ordered that a warrant issue for the arrest of Mr Mensink in order to secure his attendance at this Court for an examination before a registrar. That order was made following his failure to attend for examination voluntarily on two separate occasions on 22 February 2017 and 27 March 2017. On each occasion, the examination was to be conducted on behalf of the respondents, Mr Stephen Parbery and Mr Michael Andrew Owen, in their capacity as additional special purpose liquidators of Queensland Nickel (also referred to as QN).

102    On 28 March 2017, the primary judge signed a statement of charge for contempt arising from Mr Mensink's failure to attend on the two examination dates. Also on 28 March 2017, the primary judge made further orders, inter alia, for a warrant to issue for the arrest and detention of Mr Mensink to answer those charges of contempt of court.

103    Mr Mensink appeals against the orders for the two arrest warrants to issue, and collaterally against the contempt charges having issued. He also appeals, in the event that he succeeds in his appeal against the arrest warrants to issue, against orders made for substituted service and costs.

104    The respondents filed a notice of objection to competency but did not press this at the hearing of the appeal. The competency issue concerned the orders being made by the primary judge being interlocutory in nature, so as to require leave to appeal. No such leave is required. Section 24 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) deals with this Court's appellate jurisdiction. Section 24(1A) requires leave for an appeal from an interlocutory judgment. There is no doubt that the orders of the primary judge were interlocutory in nature. However, s 24(1C) provides that leave is not required under s 24(1A) for interlocutory judgments that affect the liberty of an individual or are made in proceedings relating to contempt of this Court or any other court. The judgment appealed from affects Mr Mensink's liberty and was made in proceedings relating to an alleged contempt of court, and so engaged s 24(1C): see Mensink v Parbery [2017] FCA 1248 per Wigney J at [53]; see also Webster v McIntosh (1980) 32 ALR 603 at 607. Accordingly, the respondents' notice of objection to competency should be formally dismissed. No substantial time was taken with this issue and, in any event, no more than would have been required of Mr Mensink to make clear why leave was not required for his appeal in the first place.

Chronology of key events

105    Mr Mensink was a director of Queensland Nickel between October 2012 and January 2015, for a short period in February 2015 and, at least on 18 January 2016, was the company's sole director. It is not necessary to detail his role with Queensland Nickel any further for present purposes.

106    On 18 January 2016, Mr Mensink, as sole director of Queensland Nickel, resolved that administrators be appointed under s 436A of the Corporations Act 2001 (Cth), thus placing the company into voluntary administration. On 22 April 2016, those voluntary administrators became the general purpose liquidators (GPL) of Queensland Nickel, following a resolution of creditors under s 439C of the Corporations Act.

107    Just under a month later, on 18 May 2016, the primary judge made an order appointing the respondents and a third person as additional special purpose liquidators (SPL) for the purpose, inter alia, of investigating certain dealings or transactions between Queensland Nickel and two other companies. The third person appointed as a special purpose liquidator resigned from that position on 10 March 2017. The issues on this appeal arise from the actions taken by the respondents in the course of their court-appointed investigation concerning Queensland Nickel.

3 August 2016 – Examination Summons issued

108    On 2 August 2016, a registrar made orders that summonses for examination addressed to five named individuals, including Mr Mensink, be issued, along with numerous orders for production of documents. On 3 August 2016, a summons was issued in accordance with those orders for the examination of Mr Mensink pursuant to s 596A of the Corporations Act. The return date for that summons was 19 August 2016. Rule 11.3(8) of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules) provides that an examination summons must be in accordance with Form 17. The summons that was issued was in accordance with Form 17 and contained an additional endorsement concerning privilege in relation to documents collaterally required to be produced. As such, the summons did not contain an endorsement in the form provided by r 41.06 of the Federal Court Rules 2011 (Cth). Instead, on page 2 of the six-page document, the following words appeared (emphasis added):

The Court may order that the questions put to you and the answers given by you at the examination are to be recorded in writing and signed by you.

If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice.

You have the right to claim privilege over documents which fall within the scope of these orders for production but which properly attract legal professional privilege. The Applicants have been granted liberty to apply to the Court for the purpose of obtaining directions to resolve any contested claims for legal professional privilege, once documents have been identified as subject to such claim.

109    The terms of r 41.06 were (and still are) as follows:

Endorsement on order

If an order requires a person to do, or not to do, an act or thing, whether within a certain time or not, and the consequences of failing to comply with the order may be committal, sequestration or punishment of contempt, the order must carry an endorsement that the person to be served with the order will be liable to imprisonment, sequestration of property or punishment for contempt if:

(a)    for an order that requires the person to do an act or thing – the person neglects or refuses to do the act or thing within the time specified in the order; or

(b)    for an order that requires the person not to do an act or thing – the person disobeys the order.

110    Rule 1.3(2) of the Corporations Rules provides that the other Rules of this Court – relevantly, the Federal Court Rules – apply to the extent that they are relevant and not inconsistent with the Corporations Rules. The operation of r 11.3(8) of the Corporations Rules, which requires Form 17 to be used for an examination summons (being a form which contains a different endorsement to that required by r 41.06 of the Federal Court Rules), means that r 41.06 is inconsistent with r 11.3(8). It follows that the requirement for the endorsement described in r 41.06 does not apply to examination summonses issued under the Corporations Rules. It is the notice in Form 17 that is required to be present in a Corporations Rules examination summons, not the endorsement in r 41.06.

111    As a Form 17 examination summons is not an order for the purposes of r 41.06, it also follows that r 41.07 of the Federal Court Rules, which deals with service of such an order, does not apply. That is reinforced by the terms of r 11.4 of the Corporations Rules, which, inconsistently with r 41.07, provides that an examination summons must be personally served, or served in any other manner as the Court may direct, on the person who is to be examined, at least eight days before the date fixed for the examination. In his later affidavit, Mr Mensink makes it clear that he was aware of at least the substance of this rule, because he was aware of the requirement for service of an examination summons at least eight days before the examination is scheduled to take place.

112    As it transpired, well before the 2 August 2016 summons was issued, Mr Mensink had already left Australia, as was made clear by the following sequence of events. On 10 June 2016, Mr Mensink sent an email to the solicitors for the general purpose liquidators of Queensland Nickel, attaching a letter of the same date. The evidence reveals that this email with the attached letter was forwarded to the respondents' solicitors on 28 March 2017. It is not clear whether the contents of either document were, by the time of forwarding, already known to the respondents or their solicitors. In his 10 June 2016 letter, Mr Mensink said that he had not determined his return date to Australia, such that it could readily – indeed, irresistibly – be inferred that he had left Australia by then. By way of confirmation, the Court was advised at the hearing of the appeal that Mr Mensink had, in fact, left Australia in June 2016. The Court understands that he has not yet returned to Australia.

113    On 15 August 2016, a registrar apparently adjourned the summons to 30 August 2016. No orders appear to have been made for substituted service at that time.

114    On 19 September 2016, a registrar made certain orders, including, in particular:

1.    Further dates for the conduct of public examination hearings in respect of summonses for examination issued on 2 August 2016 addressed to Mr Clive Theodore Mensink, Mr Clive Frederick Palmer, Mr Ian Maurice Ferguson and Mr Daren Wolfe may be listed on a date to be fixed upon the application of Mr John Park, Mr Stefan Dopking, Ms Kelly-Anne Trenfield and Mr Quentin Olde ("General Purpose Liquidators").

16 December 2016 – Amended Examination Summons issued

115    On 15 December 2016, a registrar made orders to issue an amended summons addressed to Mr Mensink, to adjourn the return date for that summons to 22 February 2017 and to permit substituted service in lieu of personal service of that summons, such substituted service to be deemed good and sufficient service three working days after compliance with the various means of substituted service provided for. Paragraph 4 of the orders listed the following means for effecting substituted service (emphasis in original):

In lieu of personal service, a copy of the Mensink Summons together with a sealed copy of this order (collectively, the Documents) be served on Clive Theodore Mensink as follows:

(a)    posting the Documents by express mail to Level 8, 380 Queen Street, Brisbane, Queensland, 4000;

(b)    posting the Documents by express mail to 1/169 Given Terrace, Paddington QLD 4064 marked for the attention of Mr Sam Iskander of Alexander Law;

(c)    posting the Documents by express mail to 7 Cashell Crescent, Bushland Beach QLD 4818 marked for the attention of Mr Ross Kilmurray of Kilmurray Legal;

(d)    posting the Documents by express mail to 19 Blackall Road, Murrumba Downs, QLD 4503;

(e)    emailing a copy of the Documents to daren.wolfe@qni.com.au;

(f)    emailing a copy of the Documents to prk.kl@bigpond.com;

(g)    emailing a copy of the Documents to sam@alaw.com.au; and

(h)    emailing a copy of the Documents to s.mole@mineralogy.com.au.

116    On 16 December 2016, the amended summons was issued. The amended summons contained a warning in the same form as that in the summons issued on 3 August 2016, reproduced at [108] above. That is, it did not have an endorsement in the form of r 41.06 of the Federal Court Rules, but it did state, "If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice".

117    A complicating factor in this case is the fact that there were two types of orders made in relation to the amended examination summons issued on 16 December 2016. The first order was made by the registrar on 15 December 2016 in relation to the issue of that amended summons. The second order was made by the primary judge on 27 February 2017 in relation to future compliance with that amended summons. The following observations as to the interplay between the endorsement/notice rules and the service rules within the Corporations Rules and the Federal Court Rules can be made:

(1)    The 15 December 2016 orders of the registrar did not, in the language of r 41.06 of the Federal Court Rules, themselves require Mr Mensink to do anything, such that the endorsement requirement had no application to those orders. The amended summons was in accordance with Form 17, and contained the warning notice as to the consequences of non-compliance required by that form. The amended summons thus complied with r 11.3(8) of the Corporations Rules. Accordingly, r 41.06 of the Federal Court Rules did not apply.

(2)    The rules for service of the amended summons were those contained in r 11.4 of the Corporations Rules, rather than those contained in r 41.07 of the Federal Court Rules. The orders for substituted service made by the registrar on 15 December 2016 were as provided for by r 11.4 of the Corporations Rules.

(3)    The orders made by the primary judge on 27 February 2017, discussed below, were separate from the amended summons, and contained separate orders for compliance. The primary judge's orders, by requiring Mr Mensink to do something (namely, attend for the purposes of compliance with the amended summons), carried consequences for non-compliance that were independent from the consequences for non-compliance within the amended summons itself. The orders made by the primary judge on 27 February 2017 therefore required the endorsement described in r 41.06 of the Federal Court Rules. The service requirements applying to those orders were those in r 41.07 of the Federal Court Rules.

31 January 2017 – Affidavit sworn by Mr Mensink

118    On 31 January 2017, Mr Mensink swore an affidavit in Boston in the United States of America that was witnessed by a notary public in Massachusetts. The affidavit was electronically filed on 22 February 2017 in proceedings In the matter of Queensland Nickel Pty Ltd (In Liquidation) ACN 009 842 068 (QUD580/2016). The footer on the first page stated that the affidavit had been prepared by Mr Sam Morris Iskander of Alexander Law, with the email address "sam@alaw.com.au". That email address is one of the email addresses for substituted service reproduced at [115] above. The key passages of that affidavit that are relevant to this appeal are (emphasis in original):

4.    The GPLs have my email address and their lawyer had previously sent me emails in Hong Kong. I note the GPLs and the SPLs are required to work together; I understand to avoid duplication and limit the cost to creditors. I have not received any communication in 2017 in my email account from the GPL and SPL (QN Liquidators) enquiring my whereabouts [sic] and/or when I would be returning to Australia. If they had contacted me I would have advised them. I will be returning in late July and will be available for examination at any time at their convenience after the end of the first week of August 2017, after I obtain appropriate Legal advice. I understand that to obtain an order for substituted service the QN Liquidators had a responsibility to disclose the fact that they had failed to contact me by email when they could have. The obtaining of any substituted service orders must have been done without making the required or honest disclosure.

5.    Reasonable excuse

I am currently undertaking a cruise whereby the journey ends on the 8 February 2017, which is 9th February 2017 (Australian Time). Following the end of the current Journey. I have made extensive arrangements to travel to Europe and spend time with my late father's family in Holland. My overseas travel has been a long-standing arrangement and if I do not follow the current arrangements I will incur significant damages. In addition to personal and health determents set out hereunder; I will incur substantial financial costs and damages if I broke my current committed schedule which would have me returning to Australia in late July 2017. My father's family are elderly and this may be the last time I will have to spend time with them.

6.    Examinations, Time and Legal Advice,

I understand I am required subject to a reasonable excuse not to attend to the Federal Court of Australia on 9th February 2017 and from day to day until excused by the Court for examination by the GPLs and from 22nd February 2017 and thereafter from day to day until excused by the Court for examination by the SPLs. I have been informed by Clive Palmer that orders were made for substituted service by the GPLs on the 19th January 2017 and by the SPLs on the 15th December 2016. I have not received any documentation in respect of such examinations nor have I had the opportunity of meeting with and discussing matters with an Australian Lawyer to properly prepare for any examination and to understand the information the GPLs and SPLs are seeking. In such circumstances, I do not believe it is not reasonable to expect my attendance at the examinations without having the benefit of appropriate Australian Legal advice.

7.    I am amongst other things and for the reasons set out in this my affidavit not able to attend to the examinations as it would not be reasonable for me to do so.

8.    It is evident that the total time required in Australia for these examinations is approximately 14 days for each examination period (Examination Period). I say approximately because I am informed that the summons states "… from day to day until excused by the court …". The extended period of examination will cause interruption to my current activities and obligations. The fact that the GPL and the SPL are requiring separate examinations with a two-week gap between them is oppressive. Both Liquidators are aware that I am located outside of Australia. The timing and duplicity of the examinations are designed to cause an unreasonable disruption and economic loss and personal damage and financial damage to me personally and or to inflict upon creditors unnecessary costs.

9.    I am informed by Clive Palmer and believe it to be true that at an examination held of him in the Federal Court of Australia in 2016 (Palmer examination) both liquidators were present and had the opportunity to participate in such examination. I do not understand why it is necessary for two examinations to be conducted by two different sets of Liquidators in respect of the same matters two weeks apart. It would be unreasonable to expect me to have an extended stay in Australia for nearly six weeks to attend to such matters.

…

16.    On 18th May 2016, the GPLs took out a summons in my name (First Summons) for examination in the Federal Court commencing 14th June 2016 and was further adjourned to a later date. I discussed with Clive Palmer as to how long I would further need to delay my Trip. I received advice that the any summons was required to be personally served on me eight days before the examination. I understood that advice to mean if the GPLs did not serve their summons on me personally eight days before the examination I would not be required to attend the examination. That if the eight-day requirement was not met it would make no difference if I was inside Australia's borders or overseas I would not be required to attend the examinations. I remained in attendance at QN refinery in Townsville awaiting service from 18 May 2016 until eight days before the proposed examination date. I then left to commence my Trip it was not till I was in Hong Kong that I learned by email that the GPLs even though they failed to serve me within the required time stated that they wanted to examine me. I understand that the GPLS [sic] promoted the position in the Australian Community that I had fled Australia to avoid the examinations, nothing is further from the truth. I waited over three weeks for service at a place where the GPLs knew where I was located and the GPLs failed to follow the requirements of the Corporations Act.

…

28.     Return to Australia

    I plan to return to Australia in late July 2017. I would be available for examination within a reasonable time of my return. I would suggest the first part of August 2017. My solicitors have requested the proposed examinations be deferred until that time. The GPL and the SPLs have refused to pay my costs and refused to set the Date for examination in August. Such decision has been arbitrary made and seeks to impose a penalty and damage upon me. It was a relevant consideration that the SPL and GPL would not pay my reasonable costs of attending the examination when they obtained orders for substituted service.

29.     Health Issues and Financial Pressure

As previously stated my absence from Australia is unrelated to the matters of the examination. I am presently travelling with my current partner and my personal relationship with her is paramount to me. I have promised her that she would accompany me on this trip and it is important to me that I do not let her down and that the examination does not interfere with my personal commitments that I have made. The thought of my personal relationship being damaged at this critical time of my life following my recent divorce distresses me greatly and is causing me mental anguish and pain which I find unbearable. Annexed hereto and marked as exhibit "CM-4" is a copy of the divorce certificate. I am depressed and upset about the whole QN saga and the liquidator John Park who is responsible for the unemployment of many Australians in Townsville. My depression is such that my deteriorating financial position does not allow me to travel to Australia.

30.    I have experienced chest pains and sleepless nights which have been detrimental to my health. The financial cost to my current plans and the cost of returning to Australia is unreconcilable [sic] and I cannot afford such financial imposition. The publicity generated by the GPLs failure to serve me and the consequent damage to my personal reputation is destressing [sic] and causing serious health issues for me. My father was subject to serious heart attacks at my age and I have a fear that I will suffer the same fate. Attached and marked "CM-5" is a copy of the letter from his medical practitioner regarding my health and fitness to return back to Australia.

119    One of the annexures to Mr Mensink's affidavit was a short "To Whom it May Concern" letter from a Dr Manish Sagar on the letterhead of "Boston Medical", dated 30 January 2017. The letter said that Mr Mensink was a patient of Boston Medical and had been seen that day for a medical visit. The letter expressed the opinion that "[a]fter evaluation", Mr Mensink suffered from severe anxiety and depression and was in no condition to travel back to Australia and incur more stress. No further information was provided in support of, or to explain, the opinion proffered or how it was arrived at.

20 and 21 February 2017 – Affidavits sworn by Mr Iskander

120    On 20 February 2017, an affidavit was filed in these proceedings that was sworn by Mr Iskander and annexed Mr Mensink's 31 January 2017 affidavit.

121    On 21 February 2017, a further affidavit sworn by Mr Iskander, and annexing a further letter by Dr Sagar dated 20 February 2017, was filed in proceedings In the matter of Queensland Nickel Pty Ltd (In Liquidation) (QUD329/2016). Dr Sagar's letter refers to various medical conditions of Mr Mensink, their treatment and their prognosis, including the following:

I do not think his present medical conditions preclude him from traveling. I do think that his clinical depression and anxiety disorder, however, make it difficult for him to function properly in a stressful environment such as a legal examination. It is more probable than not that his present health condition could interfere with his ability to prepare for the examination and give cogent evidence. Ongoing pharmacologic treatment will help with his ability to respond in an appropriate manner to life-stresses. On the other hand, major life-events will continue to exacerbate his clinical depression. As such, I am not able to provide a general timeframe for his complete recovery because I cannot predict the occurrence of extra-ordinary life-events.

122    It may be seen that this medical report, even if accepted on face value without appropriate testing, did not, in terms, preclude Mr Mensink from attending an examination or giving evidence, albeit with a cautionary note as to the cogency of the evidence he might give.

22 February 2017 – First failure of Mr Mensink to attend for examination

123    Mr Mensink did not attend for examination on 22 February 2017. The respondents filed an affidavit on 22 February 2017 by a Ms Caton, sworn the same day, which deposed to the steps taken to effect substituted service of the amended summons in accordance with the means ordered and reproduced above at [115]. That affidavit was supported by annexed documents to further demonstrate what had taken place. That evidence discloses that service of the amended summons and the 15 December 2016 orders was effected on Mr Mensink in accordance with the order for substituted service by express post to four separate addresses in Queensland and by email to four separate email addresses, three of which have the suffix ".au". One of those four email addresses was that of Mr Mensink's solicitor in these proceedings, Mr Iskander.

124    The order for substituted service made by the registrar on 15 December 2016 has not been challenged and therefore stands as a valid order. Mr Mensink is therefore taken to have been served with the amended summons and, accordingly, to have been on notice that he was required to attend court for the purposes of examination on 22 February 2017.

22 February 2017 – Orders made by Registrar referring matter to primary judge

125    Also on 22 February 2017:

(1)    a registrar of the Court made, inter alia, the following orders:

1.    The question of whether an arrest warrant addressed to Clive Theodore Mensink ("Mr Mensink") should be issued by the Court be referred to the Honourable Justice Dowsett for determination at 10.15 am on 23 February 2017.

2.    The lawyers appearing for Mr Mensink are directed to file and serve any further affidavit material together with a list of the material upon which they intend to rely at tomorrow's listing by 5.00 pm today.

3.    The return of the amended summons for examination addressed to Mr Mensink, issued by order of the Court on 15 December 2016, is adjourned to a date to be fixed for further hearing, to be brought on by no less than 8 days written notice to the examinee or to his solicitors, Alexander Law. Should such examination hearing not be resumed within 6 months of today's date the summons for examination shall be automatically discharged.

(2)    Mr Iskander swore and filed an affidavit in these proceedings that annexed his 21 February 2017 affidavit, which, in turn, annexed the letter from Dr Sagar dated 20 February 2017.

23 and 24 February 2017 – Appearances on behalf of Mr Mensink before the primary judge

126    On 23 February 2017, counsel for Mr Mensink appeared before the primary judge, instructed by Mr Iskander, following the referral to his Honour ordered by the registrar. After some discussion about other matters, his Honour turned to Mr Mensink's non-appearance the previous day. Counsel for Mr Mensink read a number of affidavits in relation to the non-appearance. Counsel then appearing for the respondents applied for an order that a warrant be issued for the arrest of Mr Mensink pursuant to r 41.05(1) of the Federal Court Rules and r 11.10(2) of the Corporations Rules by reason of Mr Mensink's failure to appear. Those rules provided (and still provide) as follows:

41.05    Failure to attend Court in response to subpoena or order

(1)    If the Court has issued a subpoena or made an order that a person attend Court:

(a)    to give evidence; or

(b)    to produce any document or thing; or

(c)    to answer a charge of contempt; or

(d)    for any other reason;

and the person fails to attend, a party may apply to the Court for an order that a warrant, in accordance with Form 90, issue to the Sheriff, or another person named in the warrant:

(e)    for the person's arrest and detention in custody until the person is brought before the Court; and

(f)    for the production of the person before the Court.

…

11.10    Default in relation to examination

(1)    This rule applies if a person is summoned or ordered by the Court to attend for examination, and:

(a)    without reasonable cause, the person:

(i)    fails to attend at the time and place appointed; or

(ii)    fails to attend from day to day until the conclusion of the examination; or

(iii)    refuses or fails to take an oath or make an affirmation; or

(iv)    refuses or fails to answer a question that the Court directs the person to answer; or

(v)    refuses or fails to produce books that the summons requires the person to produce; or

(vi)    fails to comply with a requirement by the Court to sign a written record of the examination; or

(b)    before the day fixed for the examination, the person who applied for the summons or order satisfies the Court that there is reason to believe that the person summoned or ordered to attend for examination has absconded or is about to abscond.

(2)    The Court may:

(a)    issue a warrant for the arrest of the person summoned or ordered to attend for examination; and

(b)    make any other orders that the Court thinks just or necessary.

127    A draft arrest warrant had apparently been furnished to the primary judge. A debate then ensued as to the available means of service overseas and the contents of Mr Mensink's 31 January 2017 affidavit. His Honour expressed concern about issuing a warrant in the expectation that it would not be served at any time in the near future. His Honour ultimately determined that a warrant for the arrest of Mr Mensink should not issue at that stage, indicating that he was minded instead to order that he appear in a month, and expressing confidence that he would come back to Australia if an order was made requiring him to do so. It is important to note that a decision by the primary judge not to issue a warrant for non-appearance at that stage did not constitute absolving Mr Mensink of liability for that non-appearance, nor entail any determination that action would not subsequently take place based upon that failure to appear, especially if that failure was not remedied in a month's time.

128    On the evening of 23 February 2017, Mr Iskander filed a notice of acting on Mr Mensink's behalf.

129    On 24 February 2017, the primary judge further heard the matter referred to his Honour by the registrar two days earlier. Again, counsel appearing for Mr Mensink was instructed by Mr Iskander. His Honour confirmed his view that the appropriate course was to order that Mr Mensink appear in a month's time, expressing the view that there was no great advantage in issuing a warrant on that day, 24 February 2017, rather than a month later, if Mr Mensink did not appear at that later date in any case. The lack of practical advantage in ordering that a warrant issue on 24 February 2017 did not entail any express or implied finding that the failure on the part of Mr Mensink to appear on 22 February 2017 was somehow a matter that could not be revisited and subsequently acted upon.

27 February 2017 – Orders made by the primary judge requiring attendance by Mr Mensink before registrar

130    On 27 February 2017, the primary judge made orders which included an order that Mr Mensink attend before a registrar for the purposes of an examination on 27 March 2017. As the meaning of that order is in dispute, it is necessary to reproduce the orders made that day in full:

Conditional upon:

a.    the solicitors for the applicants, at their expense, providing to Mr Mensink's solicitors one return economy class air ticket between an airport in Europe to be nominated by Mr Mensink or his solicitors and Brisbane, at a time which will enable to [sic] Mr Mensink to arrive in Brisbane not later than midday on 26 March 2017, or at any earlier time which may suit his convenience; and

b.    such arrangements being notified by the solicitors for the applicants to Mr Mensink's solicitors as soon as is reasonably practicable after Mr Mensink has nominated his preferred port of departure and time of departure,

THE COURT ORDERS THAT:

1.    Mr Mensink nominate such port and departure time not later than 4 pm on 3 March 2017;

2.    pursuant to s 596A of the Corporations Act 2001 (Cth), Clive Theodore Mensink attend before a Deputy Registrar of the Court at Brisbane at 9.30 am on Monday 27 March 2017, for the purpose of complying with the order made by District Registrar Baldwin on 15 December 2016;

3.    in default of his so appearing, he, at 2.15 pm on 27 March 2017, appear before the Honourable Justice Dowsett or another judge of the Court at Brisbane to show cause why a warrant should not be issued for his arrest upon the application of the applicants in these proceedings;

4.    Mr Mensink make himself available for such examination from 9.30 am on 27 March until 4 pm on 31 March 2017;

5.    the applicants pay to the solicitors for Mr Mensink, on or before 4 pm on 24 March 2017, the sum of $2000, being the costs of accommodation and other expenses to be incurred by Mr Mensink during the period from 26 March until 31 March 2017 ;

6.    Mr Mensink be at liberty to apply for an order that the applicants undertake to the Court to pay him such amount by way of reimbursement for costs incurred, or loss suffered as a result of his compliance with this order, as the Court thinks appropriate;

7.    the parties otherwise have liberty to apply;

8.    the existing application be adjourned; and

9.    costs be reserved.

131    The above orders made on 27 February 2017 contained an endorsement in the form provided for by r 41.06 of the Federal Court Rules immediately prior to the text reproduced above.

3-8 March 2017 – Filing and hearing of Mr Mensink's interlocutory application

132    On 3 March 2017, an interlocutory application was filed on behalf of Mr Mensink. That application sought the following, plus costs:

1.    Orders 1, 2, 3, 4, 5 and 6 made by His Honour Justice Dowsett in this proceeding on 27 February 2017 be set aside on the grounds that:

(a)    there was no jurisdiction to make orders 1, 2, 3 and 4; and

(b)    the orders did not, in the circumstances, specify a reasonable date, time and place as required by s597(6A) and 597(17) of the Corporations Act 2001 (Cth).

133    The interlocutory application was supported by a short affidavit sworn by Mr Iskander, also filed on 3 March 2017, as follows:

1.    I am the solicitor with carriage of this matter for the Examinee, Clive Theodore Mensink.

2.    Between the making of the Orders on 27 February 2017 and the date of this my affidavit, I have made at least nine (9) telephone calls to the number that I have for Mr Mensink, leaving messages every time to call me back so that I can inform him of the orders that were made on 24 February 2017 and 27 February 2017. The last of my calls was at 3:53pm on 3 March 2017.

3.    I have not received any communication back from the applicant and I cannot state with any degree of certainty at all that he is aware that Orders have been made.

4.    The contents of this Affidavit are true to my own knowledge, save where I have indicated otherwise. Where a fact is true to the best of my information and belief, that fact is stated and the source of the information and belief is identified.

134    Paragraph 2 of Mr Iskander's affidavit is drafted in a curious way. It only makes reference to attempting to contact Mr Mensink by telephone using an unstated telephone number, despite a reference in Mr Mensink's own affidavit of 31 January 2017 to being contactable by email. In order to draft, forward and finalise the affidavit of 31 January 2017, it seems very likely, if not unavoidable, that email communications took place between Mr Mensink and Mr Iskander. In those circumstances, the distinct impression conveyed by Mr Iskander's affidavit is not of really trying to advise Mr Mensink of the existence and content of the 27 February 2017 orders made by the primary judge, but, rather, of a perfunctory and superficial attempt to do so by repeated unanswered telephone calls. The futility of the calls as a means of communication with Mr Mensink must have become rapidly apparent to Mr Iskander. There is no evidence that the previously successful means of communication by email between Mr Mensink and Mr Iskander had not taken place, but nor is there any suggestion that this was even attempted. Mr Iskander seemed to be more focused on establishing that successful contact had not been made, utilising very limited means and efforts, rather than establishing that all reasonable efforts to contact Mr Mensink had been made.

135    Mr Mensink's interlocutory application was heard and dismissed by the primary judge on 8 March 2017: see Re Parberry [2017] FCA 880. The point was taken, unsuccessfully, before the primary judge that the amended summons was not validly issued by the registrar. That point has not been pursued on appeal.

136    Of continuing interest to this appeal is the question of whether Mr Mensink either had actual notice of the orders made on 27 February 2017, or should be taken to be on notice of them. Counsel appearing for Mr Mensink before the primary judge announced his appearance by stating that he was instructed by Mr Iskander's firm, which, when read with the filed notice of acting referred to at [128] above and the affidavit referred to at [133] above, had to mean that he was instructed by Mr Iskander. During the course of the interlocutory hearing before the primary judge, the following exchanges took place that are relevant to the issues on this appeal, largely concerning Mr Mensink's awareness of the orders that were made on 27 February 2017:

HIS HONOUR: Well, why are we here? Now, why are we here, Mr Nelson? I understood you not to oppose the order that I made last week.

MR NELSON: No. It wasn't opposed, your Honour, but one reason we are here, the affidavit of 3 March of Mr Iskander swears to the fact that he has tried to communicate the content of your Honour's orders to Mr Mensink, but to the best of his knowledge and belief, hasn't been able to.

HIS HONOUR: Well, that's Mr Mensink's problem, isn't it?

ME NELSON: Well, that part may be.

…

MR NELSON: Well, I raised this issue as well last time we were before the court, and there was no contention about it, but the steps didn't seem to have been taken to actually locate him. Now, I appreciate that…

HIS HONOUR: To locate him?

MR NELSON: --- my learned friends may have some difficulty in locating Mr Mensink, but the steps – I'm digressing from where I intended to go, which is that simply no summons has been issued in accordance with the order of 15 December, and served upon Mr Mensink. So his appearance in relation to a document that doesn't exist, your Honour, can't bind him to the orders.

HIS HONOUR: Yes, it can. You didn't limit the basis upon which you appeared.

MR NELSON: But he doesn't appear as a party in a general sense, your Honour, only as an examinee.

HIS HONOUR: He is. He's a general sense because he's the recipient of a – recipient of a – of a summons. It's those proceedings that we're concerned with, surely.

MR NELSON: And that's part of the argument, your Honour. That summons has never actually been taken out and, therefore, can't be said to have been served upon him.

HIS HONOUR: No. How am I – why – on what basis am I to assume – are – well, I – I – I assume that you are making these submissions on – on instructions, yet you seem to say that you can't contact him.

MR NELSON: Your Honour, my instructing solicitors have instructions from Mr Mensink to act in his best interests in this proceeding, and that would include making submissions about the validity of the orders that were made.

HIS HONOUR: Well, it probably also includes accepting service.

137    This was, at best, an unsatisfactory basis for the interlocutory application to be brought on behalf of Mr Mensink. Left unexplained, both before his Honour and on appeal, was how Mr Iskander was able to obtain meaningful instructions to bring an interlocutory application to set aside orders without his client knowing of their existence.

27 March 2017 – Second failure of Mr Mensink to appear in court and issue of arrest warrant by primary judge

138    Mr Mensink did not appear before the Court on 27 March 2017. Mr Iskander filed a further affidavit sworn on 27 March 2017, deposing to the unsuccessful attempts he had made to contact Mr Mensink as follows:

1.    I am the solicitor with carriage of this matter for the Examinee, Clive Theodore Mensink.

2.    Further to my affidavit filed 3rd March 2017, I make this further affidavit in relation to this matter.

3.    Between the time of my last affidavit and the date of this my affidavit, I have made at least a further twelve (12) telephone calls to the number that I have for Mr Mensink, leaving messages every time to call me back so that I can inform him of the orders that were made on 24 February 2017 and 27 February 2017 as we as the Orders of 8th March 2017. The last of my calls was at 8:24am on 27 March 2017.

4.    I have made further enquiries with associates and family of Mr Mensink and everyone I have asked does not know his whereabouts.

5.    I have not received any communication back from the applicant and I cannot state with any degree of certainty at all that he is aware that Orders have been made.

6.    The contents of this Affidavit are true to my own knowledge, save where I have indicated otherwise. Where a fact is true to the best of my information and belief, that fact is stated and the source of the information and belief is identified.

139    It may be seen that this 27 March 2017 affidavit was in much the same terms as Mr Iskander's prior affidavit of 3 March 2017. Once again, the distinct impression is that Mr Iskander was not making a real effort to advise Mr Mensink of the existence and content of the 27 February 2017 orders made by the primary judge. Again, there was no evidence that contact was not made using email or other previously successful means of communication, nor any evidence that this was carried out or at least attempted. The evidence revealed no more than a perfunctory and superficial attempt to contact Mr Mensink by calling an unstated telephone number that was not answered. Mr Iskander again seemed to be more focused on establishing that contact had not been made, rather than establishing that all reasonable efforts to contact Mr Mensink had been made.

140    During the course of the hearing that ensued on 27 March 2017, at which Mr Iskander appeared for Mr Mensink, counsel for the respondents sought to cross-examine Mr Iskander on his attempt to contact his client. This did not eventuate. Evidence was called to establish that Mr Mensink had not appeared that day. The primary judge made an oral order that a warrant issue for the arrest of Mr Mensink to bring him to court to attend for examination as follows:

Arrest Clive Theodore Mensink and bring him before the court to attend for examination pursuant to the orders made by Deputy Registrar Baldwin on 15 December 2016 and Dowsett J on 27 February 2017.

141    Before standing the matter over to the following day, his Honour gave the following oral reasons for the warrant to issue:

HIS HONOUR: All right. And with respect to the warrant that I'm issuing now, I indicate that I am satisfied that the applicant – that Mr Mensink failed to attend as required in – with respect to the orders mentioned in the draft order and that although his solicitor may not be satisfied that he is aware of the issue of the warrants, it appears to me that that arises from the fact that he has failed to keep in contact with his solicitor on the record and that in those circumstances, it seems to me that is not good cause.

142    The 27 March 2017 order made by the primary judge to arrest Mr Mensink is one of the orders he appeals against. It is clear that this order had two independent bases for being made:

(1)    the failure of Mr Mensink to appear for his examination on 22 February 2017, ordered by a registrar on 15 December 2017 (as will be seen, that is not an accurate description of the effect of the order made on that date, as opposed to the amended examination summons itself, which did have that effect and was issued the next day, 16 December 2017); and

(1)    the failure of Mr Mensink to appear for his examination on 27 March 2017, as ordered by the primary judge on 27 February 2017.

28 and 29 March 2017 – Interlocutory hearing brought on by respondents and further arrest warrant issued by primary judge

143    The following day, 28 March 2017, counsel for the respondents moved on an interlocutory application filed in court, a statement of charge and a further affidavit from Ms Caton sworn that day. The primary judge decided to issue a further warrant for the arrest of Mr Mensink. In the course of that hearing, his Honour observed, on the topic of Mr Mensink's awareness of the 27 February 2017 orders:

HIS HONOUR: … at the point at which Mr Mensink came in to the matter – I'm sorry – Mr Iskander came into the matter, it may be assumed that Mr Mensink knew about the proceedings.

…

HIS HONOUR: - - - 23 February…

MR O'DONNELL: And, of course, he filed the application [in] early March to set aside your Honour's order of 27 February.

HIS HONOUR: Well, that was – yes. So – but that means, doesn't it, that we have no evidence that he was aware of the order made – well, he should have been, I suppose is the answer. If he had remained in contact with his solicitors, he would have known about the order.

…

HIS HONOUR: … I think anything that he was ordered to do after 23 February we don't really know that he knew about the order. We can have suspicions but we don't' really know. It may be his fault because he hasn't kept in contact with his solicitor but I'm – maybe that's the answer.

…

144    Following the hearing on 28 March 2017, the primary judge signed a statement of charge in the following terms:

To the Respondent, Clive Theodore Mensink of c/o- Alexander Law, 1/169 Given Terrace, Paddington Queensland 4064.

You are charged with contempt of court in that:

Charge 1

Failing to comply with order 2 of the orders of Justice Dowsett of 27 February 2017.

Particulars:

(a)    On 27 February 2017 Justice Dowsett ordered that pursuant to s 596A of the Corporations Act 2001 (Cth), you attend before a Deputy Registrar of the Court at Brisbane at 9.30 am on Monday 27 March 2017, for the purpose of complying with the order made by District Registrar Baldwin on 15 December 2016.

(b)    At 9.30am on 27 March 2017 you failed to attend before the Brisbane Registry of the Federal Court of Australia.

Charge 2

Failing to comply with order 2 of the orders of District Registrar Baldwin of 15 December 2016.

Particulars:

(a)    On 15 December 2016, Registrar Baldwin ordered that the return date of the summons for examination issued by the Federal Court of Australia to you on 3 August 2016 and amended in accordance with the summons for examination attached and marked "A" to the order of Registrar Baldwin be adjourned to 9.30am on 22 February 2017 (for both the production of documents and for oral examination).

(b)    At 9.30am on 22 February 2017 you failed to attend before the Brisbane Registry of the Federal Court of Australia.

145    Also following the hearing on 28 March 2017, the primary judge made a number of orders, including (emphasis in original):

1.    Pursuant to rule 10.24 of the Rules, the applicants, instead of personally serving on Mr Clive Theodore Mensink ("Mr Mensink") the following documents:

(a)    interlocutory application filed 28 March 2017;

(b)    the statement of charge dated 28 March 2017; and

(c)    the supporting affidavit of Natalie Lauren Caton affirmed on 28 March 2017

(collectively, the Documents)

take the following steps to bring the Documents to Mr Mensink's attention:

(a)    posting a copy of the Documents to 1/169 Given Terrace, Paddington QLD 4064 marked for the attention of Mr Sam Iskander of Alexander Law;

(b)    emailing a copy of the Documents to cmensink@icloud.com;

(c)    emailing a copy of the Documents to s.mole@mineralogy.com.au;

(d)    emailing a copy of the Documents to sam@alaw.com.au;

(e)    texting a copy of the Documents to telephone number +61 400 019 133; and

(f)    texting a copy of the Documents to telephone number +61 407 650 457;

2.    Pursuant to Rule 10.24(c), service of the Documents upon Mr Mensink be taken to have been effected upon the completion of the last of the steps in order 3.

…

146    On 29 March 2017, the registry of this Court issued the following documents, both signed by the primary judge:

(1)    a warrant for the arrest of Mr Mensink to secure his attendance at an examination, pursuant to r 11.10 of the Corporations Rules, in the following terms:

1.    Arrest Clive Theodore Mensink and bring him before the Court to attend for examination pursuant to the orders made by District Registrar Baldwin of 15 December 2016 and the Honourable Justice Dowsett on 27 February 2017.

(2)    a warrant for the arrest of Mr Mensink for the purpose of answering charges of contempt of court, pursuant to r 42.14 of the Federal Court Rules, in the following terms:

To the Sheriff:

1.    Arrest Clive Theodore Mensink and bring him before the Court to answer the charges set out below.

Clive Theodore Mensink is charged with contempt of court in that:

1.    On 27 February 2017, Justice Dowsett ordered Mr Mensink to attend before a Deputy Registrar of the Court at Brisbane at 9.30am on Monday 27 March 2017, for the purpose of complying with the order made by District Registrar Baldwin on 15 December 2016.

2.    Mr Mensink did not attend as ordered.

3.    On 15 December 2016 [in fact, 16 December 2016], District Registrar Baldwin issued an amended examination summons requiring Mr Mensink to attend before the Federal Court at Brisbane at 9.30am on 22 February 2017 to be examined about the examinable affairs of Queensland Nickel Pty Ltd.

4.    Mr Mensink did not attend as ordered.

Notice of appeal

147    On 13 April 2017, the appellant filed a notice of appeal in the following terms (emphasis in original):

1.    The learned primary judge made each of the said orders in circumstances where there was no evidence and no proper basis upon which the learned primary judge could conclude that the Appellant had notice of the orders made by the Court on 15 December 2016 and 27 February 2017 requiring, respectively, his attendance for examination on 27 February 2017 and 27 March 2017.

2.    The learned primary judge erred in ordering that a warrant be issued for the arrest of the Appellant under r 11.10 of the Federal Court (Corporations) Rules 2000 (Cth) in that:

a.    The learned primary judge failed to consider, or failed to adequately consider, whether the Appellant had reasonable cause for not attending Court on 27 March 2017.

b.    There was no proper basis upon which the learned primary judge could conclude that the Appellant did not have reasonable cause for not attending Court on 27 March 2017.

3.    The learned primary judge erred in ordering that a warrant be issued for the arrest and detention of the Appellant under r 42.14(1)(b) of the Federal Court Rules 2011 (Cth) (Rules) in that:

a.    The learned primary judge failed, or failed adequately to consider, whether the Appellant was likely to abscond or otherwise withdraw from the jurisdiction within the meaning of r 42.14(2) of the Rules;

b.    There was no proper basis upon which the learned primary judge could conclude that the Appellant was likely to abscond or otherwise withdraw from the jurisdiction within the meaning of r 42.14(2) of the Rules;

c.    The statement of charge filed by the Respondents on 28 March 2017 was defective in that:

i.    In relation to Charge 1, the Court's orders of 27 February 2017 were not personally served on the Appellant as required by r 41.07 of the Rules;

ii.    In relation to Charge 2, the orders of District Registrar Baldwin of 15 December 2016 were not endorsed as required by r 41.06 of the Rules.

Ground 1 – no notice given of orders made on 15 December 2016 requiring attendance for examination on 22 February 2017, or orders made on 27 February 2017 requiring attendance for examination on 27 March 2017; and

Ground 2 – asserted error in ordering warrant for arrest to issue by failing to consider reasonable cause for non-attendance on examination dates

148    The submissions on grounds 1 and 2 for Mr Mensink are divided into two topics:

(1)    an asserted absence of notice of the order to attend as a pre-condition for the exercise of the power; and

(1)    asserted error in his Honour's exercise of discretion.

149    Before turning to those submissions, it is convenient to consider the case of Ian Lawrence Struthers (in his capacity as liquidator) of PACI Pty Ltd [2005] NSWSC 864, in which Brereton J, in the course of deciding to order that warrants be issued for three examinees who did not appear at the adjourned date for their examination, considered the operation of the identical New South Wales version of r 11.10 of the Corporations Rules. Both Mr Mensink and the respondents rely upon this authority to support their competing positions.

150    In Struthers, three related individuals were served with a liquidator's examination summons; two by personal service and one by service upon a solicitor acting for the three examinees, who had directly asked that all future communications be with him and not with his three clients. The original examination dates were adjourned on numerous occasions, with communications taking place with that solicitor, and later with a new solicitor. The last of those adjournment applications was proposed to take place at a 9.00 am chambers appointment with a registrar. The day before that appointment, and six days before the existing examination date, the liquidator's solicitors wrote to the new solicitor, by way of a letter sent by fax that enclosed three consent forms, advising that it was proposed to adjourn the examinations for a further week, and asking whether that adjournment was consented to or whether it would have to be applied for in court on the existing examination date five days later. No response was given prior to the appointment with the registrar, but that afternoon the fax letter was returned by the new solicitor, endorsed by hand with the words "We accept" at the foot of each request for consent to an adjournment. The liquidator's solicitors rang the registrar to advise of that consent, leaving a voicemail message, and confirmed in writing that consent had been received from the examinees' solicitor. The registrar vacated the existing examination listing. Subsequently, the three examinees did not appear on the adjourned date, and the liquidator sought the issue of bench warrants under r 11.10 of the Corporations Rules.

151    After outlining the above facts in somewhat greater detail, Brereton J said of r 11.10 at [34]:

From that rule, it is apparent that the authority to issue a warrant for the arrest of the person summoned conferred by subrule (2)(a) depends on proof: first, that the person has been summoned or ordered by the court to attend for examination; secondly, that the person has (relevantly) failed to attend at the time and place appointed, or failed to attend from day to day until the conclusion of the examination; and, thirdly, has done so without reasonable cause.

152    Brereton J applied the first requirement to find that all three examinees were summoned by the process by which they were advised of the adjourned dates – not personally, but by communication with their new solicitor. In the key passage relied upon by both Mr Mensink and the respondents, his Honour said:

40    There is no doubt that each of the Examinees has been summoned by the court to attend for examination for the purposes of rule 11.10. In so far as it is implicit in the concept of a person being summoned that the summons be conveyed to or served on the examinee, I have already referred to proof of service of the summons on each of [the first and second of the examinees]; and the correspondence, to which I have referred, of [the liquidator's firm of solicitors], first with [the examinees' first firm of solicitors and then with [the examinees' second firm of solicitors], establishes that service was effected of the summons on a person authorised to accept service of it by [the third examinee].

41    Accordingly, I am satisfied of the first of the three requirements to which I have referred under r.11.10.

153    In relation to the third condition of reasonable cause, Brereton J said at [44]:

As to the absence of reasonable cause, I proceed on the basis that the liquidator bears the onus of negativing reasonable cause. However, since knowledge of the cause is in the possession almost exclusively of the Examinees, relatively slight evidence would be required to discharge that onus. In this case it is striking that [the examinees' firm of solicitors]'s letters of 19 August and 22 August offer no explanation or cause whatsoever, beyond being "unable to attend". The liquidator's solicitors have more than once sought to elicit the cause, and have been conspicuously unsuccessful in doing so, beyond assertions that the Examinees were "not available", or at the highest "had some urgent business to attend to"…

Submissions of the parties

154    The submissions for Mr Mensink on this topic may be summarised as follows, relying upon the three conditions identified by Brereton J in Struthers:

(1)    while the second condition was not in issue, the first and third conditions were not established; and

(3)    it was not open to the primary judge to issue a warrant for Mr Mensink's arrest under r 11.10 of the Corporations Rules for failing to comply with the order made on 27 February 2017 requiring his attendance on 27 March 2017 because:

(a)    as to the first condition, his Honour found that there was no evidence that Mr Mensink was aware of the 27 February 2017 order compelling him to attend, such that he had not been summoned to attend; and

(b)    as to the third condition, his Honour failed to address, or, alternatively, address adequately, the question of reasonable cause.

155    The submissions for Mr Mensink advance as an additional reason for requiring service of the order made on 27 February 2017 that r 41.07 of the Federal Court Rules requires notice of the order, relying upon r 1.3(2) of the Corporations Rules for r 41.07 to apply. The complicating factor is that, as discussed above at [111], r 11.4 of the Corporations Rules applies in relation to the service of examination summonses, while r 41.07 applies in relation to the service of orders made by the Court outside the examination summons regime. The orders made by the primary judge were not for the issue of an examination summons, but, rather, were orders in aid of the enforcement of an extant examination summons. Rules 41.06 and 41.07 of the Federal Court Rules therefore applied to the orders made by the primary judge on 27 February 2017, but not to the amended examination summons issued on 16 December 2016, to which r 11.4 of the Corporations Rules applied as to service.

156    On the topic of reasonable cause, it is submitted on behalf of Mr Mensink that r 11.10 of the Corporations Rules only applies if the person fails to attend in answer to an examination summons without "reasonable cause", and the respondents had not discharged the onus of "negativing reasonable cause", citing Struthers at [44]. It should be noted that in the passage reproduced at [153] above, Brereton J qualified that onus by observing that only slight evidence would be required to discharge it.

157    It is further submitted on behalf of Mr Mensink that the primary judge erred in relation to reasonable cause by finding that Mr Mensink's failure to remain in contact with his lawyers amounted to an absence of reasonable cause for non-attendance. It is submitted that even if the doctrine of wilful blindness was applicable, the primary judge made no finding that Mr Mensink had deliberately or wilfully failed to keep in contact with his solicitor so as to avoid knowledge of his obligation, which would have been essential to invoke that doctrine. This is submitted to be unsurprising, on the basis that Mr Mensink's affidavit does not make it clear that he had any proper understanding of his obligation to attend on 22 February 2017. It is submitted that [6] of Mr Mensink's affidavit did not make any sense, such that it was not clear that he believed he was required to attend. It is submitted that, in any event and at most, he believed that the obligation was subject to a "reasonable excuse" for not attending. Further, it is submitted that Mr Mensink's medical condition was capable of explaining why he did not stay in contact with Mr Iskander, Dr Sagar having diagnosed Mr Mensink as suffering from various health disorders, including clinical depression and severe anxiety.

158    The respondents submit that there are two main omissions from the submissions for Mr Mensink. First, the submissions for Mr Mensink do not pay heed to the terms of [6] of Mr Mensink's affidavit of 31 January 2017, which made express reference to the obligation he was under to attend for examination on 22 February 2017. It is submitted that it was undisputed before the primary judge that Mr Mensink was aware of the requirement that he attend on 22 February 2017. In reply, it was submitted on behalf of Mr Mensink that such awareness was not undisputed, pointing to aspects of the phrasing of his affidavit of 31 January 2017. This dispute can be swiftly disposed of. On a plain reading of Mr Mensink's affidavit, he was fully aware of the substance of his obligation to attend on 22 February 2017. He sought to make a case for why he should not have to attend at that time, or at any time before it was convenient for him to do so in the second half of 2017, rather than as to any inherent incapacity to be examined, albeit with some health issues to be taken into account.

159    The second omission in the submissions for Mr Mensink that the respondents refer to concerns a collateral dispute as to whether or not the registrar who referred Mr Mensink's failure to appear on 22 February 2017 to the primary judge had varied the orders made on 15 December 2016. Mr Mensink contends that the orders of 15 December 2016 had been varied. The respondents contend that the orders had not been varied, but, rather, that the return of the amended summons had been adjourned to a date to be fixed. The respondents' submission on this point must be accepted.

160    The substance of the balance of the submissions for the respondents on grounds 1 and 2 may be summarised as follows.

161    The respondents submit that Mr Mensink failed to comply not just with the orders made by the primary judge on 27 February 2017, but also with the antecedent orders of the registrar made on 15 December 2016. The second part of this submission conflates the orders made by the registrar on 15 December 2016 and the amended summons issued in accordance with those orders on 16 December 2016. The registrar did not, in the 15 December 2016 orders, directly require Mr Mensink to do anything, but, rather, ordered that an examination summons issue, which did order Mr Mensink to appear for examination. Adjusted for that infelicity of expression, it is correct to say that Mr Mensink failed to comply with both the examination summons and with the separate order of the primary judge to comply with the examination summons.

162    The respondents submit that under r 11.10 of the Corporations Rules, it was a sufficient basis for the issue of an arrest warrant that Mr Mensink had failed, without reasonable cause, to attend on 22 February 2017 in response to the amended summons issued on 16 December 2016. As developed further below, it is submitted that there was no doubt that Mr Mensink had notice of that order, and yet he failed to appear as required. It is submitted that it was open to the primary judge to issue an arrest warrant under r 11.10 in respect of non-compliance with the 15 December 2016 orders. Again, this submission conflates the 15 December 2016 orders of the registrar, which did not directly order Mr Mensink to do anything, and the amended summons issued the next day in compliance with those orders, which required Mr Mensink's attendance for examination. The respondents' submissions, with that adjustment to refer to the requirement to appear imposed amended examination summons itself, rather than the registrar's orders by which that amended examination summons was issued, are that the conditions of r 11.10 of the Corporations Rules were met in relation to non-compliance by failing to appear for examination on 22 February 2017 for the following reasons.

(1)    While it is accepted that the three conditions that must be satisfied under r 11.10 for an arrest warrant order to issue are that the person must have been summoned, they must have failed to attend at the time and place appointed, and the non-attendance must be without reasonable cause, contrary to the submissions for Mr Mensink, r 11.10 contains no strict requirement that the person receive actual notice of the order requiring attendance for examination. The comments by Brereton J in Struthers at [40] were obiter and, in any event, his Honour found that any implicit requirement of notice was met by service on a person authorised to accept service on behalf of the person summoned, and did not entail any finding that actual notice had been given.

(2)    As found by Brereton J in Struthers at [37], r 11.10 is an independent source of power to issue an arrest warrant and does not require service of the amended summons under the ordinary court rules (in this case, r 41.07 of the Federal Court Rules).

(3)    All three conditions identified in Struthers at [34] had clearly been met in relation to non-compliance with the requirement to appear for examination on 22 February 2017, in that:

(a)    to the extent that service of the amended examination summons was required, that was achieved by substituted service;

(b)    there is no dispute that Mr Mensink did not appear on 22 February 2017; and

(c)    there was ample evidence by which the primary judge could be satisfied that Mr Mensink did not have reasonable cause for not appearing, relying upon Struthers at [37], with it being for Mr Mensink to place before the Court evidence of what was within his knowledge as to his reasons for not appearing as required.

(4)    Further as to reasonable cause, the two letters from Dr Sagar did not contain any sufficient excuse for Mr Mensink's failure to appear. None of the other reasons provided in Mr Mensink's affidavit for non-appearance constituted reasonable cause, especially given that Mr Mensink's express reasons for not appearing were concerned with timing and convenience, rather than incapacity.

163    The respondents submit that the conditions of r 11.10 of the Corporations Rules were also met in relation to non-compliance with the primary judge's orders of 27 February 2017 to appear on 27 March 2017 in answer to the amended examination summons, for the following reasons.

(1)    As to the first condition of a summons and notice, Mr Mensink was ordered to attend for examination on 27 March 2017 and was on sufficient notice of that obligation because:

(a)    on 24 February 2017, his solicitor filed a notice of acting (in fact, filed on the evening of 23 February 2017 and accepted for filing the next day), which provided an address for service, and there is no doubt that the solicitor had notice of the orders by reason of what follows;

(b)    on 6 March 2016, the solicitor filed an application to set aside the orders of 27 February 2017 (in fact, filed on Friday, 3 March 2017 and accepted for filing the following Monday, 6 March 2017);

(c)    Mr Mensink was represented by his solicitor and counsel at the hearing of the application, which was dismissed by the primary judge; and

(d)    the evidence of Mr Mensink's solicitor of unsuccessful attempts to contact him by telephone is not evidence that Mr Mensink did not have notice of the orders by other means.

(5)    As to the second condition, there is no dispute that Mr Mensink did not appear on 27 March 2017.

(6)    As to the third condition, it was open to the primary judge to find that Mr Mensink had no reasonable cause for his failure to attend in compliance with the orders of 27 February 2017 in circumstances in which:

(a)    he had actual knowledge of the orders of 15 December 2016, the existence of the amended summons and the obligation to attend by reason of his affidavit of 31 January 2017, and, in particular, paragraph 6;

(b)    there was a solicitor acting for him in the proceedings (including acting for him in seeking to have the orders of 27 February 2017 set aside);

(c)    to the extent that he may not, in fact, have been aware of the orders of 27 February 2017, which was not conceded to be the case, this could only have been due to a failure to keep in contact with his solicitor;

(d)    to the extent that Mr Mensink failed to keep in contact with his solicitor, the only reasonable inference is that this was a deliberate course of conduct; and

(e)    in relation to the suggestion made on behalf of Mr Mensink that his medical condition was a possible explanation for not being in contact with his solicitor, so as to constitute an error on the part of the primary judge in not taking that into account, there was nothing in that evidence to suggest that his condition precluded him from contacting his solicitor, and the very fact of his 31 January 2017 affidavit being taken was a telling indication to the contrary.

164    It is submitted on behalf of Mr Mensink in reply that the transcript of the hearing before the primary judge on 23 and 24 February 2017 meant that Mr Mensink could not have been in breach of the orders made on 15 December 2016, because he was being given a last chance and still had capacity to comply with those orders. It is also submitted in reply that his Honour later found that there was no evidence that Mr Mensink was, in fact, aware of the orders made on 27 February 2017. The argument based on Struthers was maintained, with it also being noted that Brereton J was not dealing with r 41.07 of the Federal Court Rules and therefore did not have the benefit of any argument before his Honour concerning the operation of that rule.

165    In relation to the issue of reasonable cause, the submissions for Mr Mensink maintain in reply that the onus lay on the respondents to show that reasonable cause was absent, and that they had not discharged this onus. In particular, is asserted that the reasons relied upon by the respondents as indicating a want of reasonable cause, summarised at [163(3)] above, are not correct because Mr Mensink did not have specific knowledge of the 15 December 2016 orders. That is asserted to be so because his affidavit did not go that far. It is submitted that a precondition for the issue of a warrant under r 11.10 of the Corporations Rules was compliance with rr 41.06 and 41.07 of the Federal Court Rules, and that the case for the respondents before the primary judge did not entail any argument as to deliberateness in not maintaining contact with his solicitor. It is submitted that any such argument would have necessitated dealing in detail with Mr Mensink's 31 January 2017 affidavit, which did not occur. It is submitted on behalf of Mr Mensink in reply that this appeal is a re-hearing, not a hearing de novo, and that it is not open to this Court to draw its own conclusions as to reasonable cause, citing Mesa Minerals Limited v Mighty River International Limited [2016] FCAFC 16; 241 FCR 241 at [85], in turn citing with approval Branir v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [25] and [30].

166    Further to the observations at [157] above, during the course of the appeal hearing, it was put to Mr Mensink's counsel that the swearing of an affidavit by Mr Mensink asserting a reasonable excuse for non-attendance on 22 February 2017, but also expressly contemplating being available for examination within a reasonable time of his return, supported an inference that Mr Mensink knew that an adjourned examination date would be set for some date in the future, but that he then failed to make an inquiry as to when that date was set to be and accordingly failed to later appear, perhaps by wilful blindness or intention. Counsel for Mr Mensink maintains in response that there was no evidence that Mr Mensink was aware of any consequence that would follow from his failure to attend, and that there was no evidence that that was ever communicated to him. Counsel submits that the evidence did not go beyond Mr Mensink believing that if he had a reasonable excuse, he would not have to attend on 22 February 2017.

Consideration

167    The proposition at the end of the preceding paragraph, to the effect that Mr Mensink's 31 January 2017 affidavit did not go beyond Mr Mensink believing that if he had a reasonable excuse, he would not have to attend on 22 February 2017, must be rejected. Such an interpretation does not survive a fair reading of that affidavit, which clearly enough reveals his appreciation of his obligation to attend, albeit that he considered that he could unilaterally decline to do so, giving such reasons as he thought were sufficient.

168    The submissions for Mr Mensink also fail to address the argument advanced by the respondents that the order to arrest and detain Mr Mensink for the purposes of being examined did not rely only upon his failure to attend on 27 March 2017, but also upon his prior failure to appear on 22 February 2017. Instead, this issue is sought to be sidestepped by the suggestion made on behalf of Mr Mensink that the 15 December 2016 orders and the amended summons consequently issued on 16 December 2016 had somehow become redundant and unenforceable because of the second chance that the primary judge had given Mr Mensink to appear and thereby comply. That argument is simply not sustainable.

169    At no time was Mr Mensink absolved of responsibility for his non-attendance on 22 February 2017, despite being given a second chance to avoid any enforcement action being necessary. Consequent upon Mr Mensink not appearing, the registrar adjourned the amended summons to a date to be fixed, but did not otherwise amend the amended summons or the 15 December 2016 orders by which it came to be issued. The orders made by the registrar did not constitute any discharge of the obligation on Mr Mensink to attend on that day, or on any adjourned date. Given that all that had taken place was an adjournment, there was no requirement to re-serve the amended summons. All that was required was sufficient notice being given to Mr Mensink of the adjourned date. The orders made five days later by the primary judge on 27 February 2017 went considerably further than that.

170    By the time the orders came to be made for Mr Mensink's arrest and detention on 27 March 2017, residual questions raised at an earlier time about overseas service had evidently ceased to concern the primary judge. That was most likely by the end of the hearing on 24 February 2017, by which time his Honour had resolved to give Mr Mensink a second chance to appear. His Honour appeared to accept that the substituted service which was effected (and at least the substance of the obligation that seemed to have been communicated, given Mr Mensink's affidavit of 31 January 2017) at least partly took place within Australia.

171    Provided that the primary judge's 27 March 2017 orders giving rise to the issue of the arrest warrant had a sound independent basis for being made, it is not to the point that a separate basis may be found wanting. In this case, that independent basis was Mr Mensink's failure to attend on 22 February 2017, there being no serious basis for contending that Mr Mensink did not know of his obligation to attend on that occasion.

172    Even if the respondents did have a onus to negative reasonable cause, which is not a question that presently requires consideration given the lack of dispute on this legal point following Struthers, that case makes it clear that any such onus is a slight one and is easily met. It does not only have to be met by evidence adduced by the respondents. It can be found within evidence adduced on behalf of Mr Mensink; in this case, his affidavit of 31 January 2017. The respondents were entitled to point to that evidence as indicating a lack of any reasonable cause for his non-attendance on 22 February 2017. There was no evidence of any material change of circumstances. The primary judge was entitled to have regard to all of the evidence before his Honour. Making an order for an arrest warrant to issue did not require reasons to be given beyond what was stated on the transcript on 27 and 28 March 2017. It was plainly open to his Honour to be satisfied that there was no reasonable cause for Mr Mensink's failure to appear on the second opportunity given to him, especially in circumstances where an application had been unsuccessfully made on behalf of Mr Mensink to discharge the 27 February 2017 orders.

173    The reasons Mr Mensink gave in his affidavit for non-attendance on 22 February 2017 were wholly inadequate. It was sufficient for the respondents to discharge their onus by pointing to the defects in that affidavit, which was done by their counsel. The supposed medical evidence, even taken at face value, which it may be doubted is appropriate and certainly was not required, does not suggest that Mr Mensink was medically incapable of attending. The totality of the evidence made it clear that Mr Mensink had other commitments which he evidently considered he was unilaterally entitled to prioritise ahead of complying with the amended examination summons.

174    The submissions for Mr Mensink did not otherwise explain why failure to comply with the amended summons was not a sufficient basis to issue a warrant for his arrest, independently of the orders made by the primary judge on 27 February 2017. Once the proposition that somehow non-compliance on 22 February 2017 had been sanctioned when an arrest warrant did not issue at or about that time is rejected, as it must be, there was no impediment to the arrest warrant issuing for that original failure to appear.

175    In any event, the issue of the arrest warrant to secure future attendance for examination did not solely depend upon the substituted service of the amended summons or upon any proof of formal service of the orders made on 27 February 2017. During the course of argument on 24 February 2017, at which hearing Mr Mensink was represented by a solicitor and by counsel, the primary judge expressed concern about leave not having been obtained to serve the amended summons overseas. The primary judge was taken to Waller v Freehills [2009] FCAFC 89; 177 FCR 507 by counsel then appearing for the respondents. Waller v Freehills established that there was no discretion to refuse to issue an examination summons under s 596A of the Corporations Act, that the Corporations Act operates extraterritorially and that service of an examination summons is governed by r 11.4, which also operates extraterritorially. It seems that his Honour was ultimately satisfied that, at least in part, substituted service had been effected within Australia, such that leave to serve the amended summons overseas was not required.

176    Further, at the hearing on 24 February 2017, after some debate as to a suitable adjourned date for the examination that took into account the convenience and availability of the legal representatives for both Mr Mensink and for the respondents, the date arrived at was 27 March 2017. The proceedings were adjourned to that date at the conclusion of the hearing on 24 February 2017. By parity of reasoning with Brereton J in Struthers, there is no doubt that Mr Mensink was at least on constructive notice, via lawyers appearing on his behalf, of the adjourned examination date, and of his requirement to attend at that time. The alternative would be to find that personal service is required every time an examinee fails to attend, but has a lawyer attend and agree to (or at least not oppose) an adjourned date being fixed. That alternative is plainly untenable and goes further than that which is required before an arrest warrant may be issued.

177    A third basis upon which Mr Mensink should be taken to have been aware of his obligation to attend for examination on 27 March 2017 so as to sufficiently ground the issue of an arrest warrant for non-attendance, and independently of any proof of service of the 27 February 2017 orders upon him, is the unsuccessful application made on his behalf in early March 2017 to have those orders set aside. It becomes farcical for Mr Mensink's lawyers to have sufficient means of contact that have clearly been effective in the past, and instructions to apply to set aside orders made by the primary judge, but insufficient means of contacting Mr Mensink to inform him of the adjourned date for examination so as to meet the description in Struthers of being taken to have had conveyed to him the adjourned date. That is especially so given that the obligation to appear at some time was already clearly known to Mr Mensink, and the adjourned date was both discussed on 24 February 2017 and contained within the orders sought to be set aside.

178    As the orders made for an arrest warrant to issue had a sound foundation by reason of Mr Mensink's failure to attend his examination on 22 February 2017, it is not necessary, strictly speaking, to consider whether there was an additional valid basis for making those orders on the basis of Mr Mensink not appearing on 27 March 2017. However, given that this was addressed in submissions, it may be observed that once Mr Mensink had knowledge of the 22 February 2017 examination date and had made reference to wishing to appear at a later time that was convenient to him, he must have known that a further examination date would likely be fixed. He either knew, or ought reasonably to have known, that the further date may or may not be in the time period that he was effectively demanding.

179    In all the circumstances, there is no need to resort to the doctrine of wilful blindness, although it is clear enough that the primary judge considered that any lack of knowledge of the adjourned examination date of 27 March 2017 was a product of Mr Mensink's own inaction. While the words "wilful blindness" were not uttered by the primary judge, the substance of that concept permeated the comments made by his Honour on 27 and 28 March 2017.

180    It may further be observed that once a notice of acting was filed by Mr Iskander, and an interlocutory application was filed on Mr Mensink's behalf seeking to have set aside the orders made on 27 February 2017, by which he was required to attend on 27 March 2017, Mr Mensink was on constructive notice via his lawyers of his obligation to attend, including the time and date of that required attendance, in a manner akin to that in Struthers. Indeed, the obligation went somewhat further than the events in that case. It simply beggars belief that Mr Mensink would be kept in the dark as to what had happened with his application to set aside those orders, whether successful or unsuccessful, unless that was deliberate. The affidavit of Mr Iskander cannot be regarded as constituting any evidence that Mr Mensink did not, in fact, know about the orders made on 27 February 2017. That evidence goes no further than proving that a telephone conversation did not take place between Mr Iskander and Mr Mensink in the period deposed to.

Discretion

181    The submissions made on behalf of Mr Mensink are to the effect that there was no evidence that he was aware of the penal consequences of a failure to attend for examination. It is submitted that it cannot be assumed that Mr Mensink was aware of that consequence by reason of the orders made on 15 December 2016, because those orders did not contain the endorsement required by r 41.06 of the Federal Court Rules. That argument must fail. The relevant document is not the order to issue the examination summons, but, rather, the examination summons itself. This argument for Mr Mensink depends upon the incorrect proposition that an examination summons is required to contain an endorsement in accordance with r 41.06 of the Federal Court Rules. The correct position is that r 11.3(8) of the Corporations Rules required the (amended) examination summons issued on 16 December 2016 to comply with Form 17, and thereby contain the notice within that form. The amended summons complied with Form 17. It follows that Mr Mensink's argument as to discretion must fail.

Conclusion

182    Grounds 1 and 2 must fail. While the examination summons has expired, the arrest warrant issued on 29 March 2017 to secure Mr Mensink's attendance at an examination, as reproduced at [146(1)] above, must remain in force.

Ground 3 – asserted error in ordering warrant for arrest to issue by failing to consider r 42.14(2) of the Federal Court Rules correctly and failing to consider defects in the statement of charge

183    This aspect of the appeal directly challenges only the arrest warrant in aid of the statement of charge for contempt, and, only collaterally, the statement of charge itself. Specifically, Mr Mensink contends that the primary judge erred in ordering that the arrest warrant for the contempt charges issue because:

(1)    the requirements of r 42.14(2) of the Federal Court Rules were not considered properly or at all by the primary judge, or, alternatively, there was no basis upon which it could be concluded that those requirements had been met; and

(7)    the statement of charge was defective because:

(a)    the 27 February 2017 orders upon which the first charge was based had not been personally served, as required by r 41.07 of the Federal Court Rules; and

(b)    the 15 December 2016 orders upon which the second charge was based did not contain the endorsement required by r 41.06 of the Federal Court Rules.

The requirements of r 42.14(2)

184    Rule 42.14(2) of the Federal Court Rules relevantly provides as follows:

Arrest

(1)    If an application for punishment of a contempt has been filed, or a proceeding has been started for punishment of a contempt, a party making the charge may apply to the Court for:

(a)    an order that the person charged give security for the person's appearance to answer the charge; or

(b)    a warrant for the person's arrest and detention in custody until the person is brought before the Court.

(2)    The party making the charge under subrule (1) must satisfy the Court that the person charged is likely to abscond or otherwise withdraw from the jurisdiction of the Court.

...

185    It is submitted on behalf of Mr Mensink that the primary judge failed to have regard to the mandatory requirement in r 42.14(2) that the respondents satisfy the Court that Mr Mensink was likely to abscond or otherwise withdraw from the jurisdiction of the Court. It is asserted that this was because the respondents did not direct his Honour's attention to that subrule, did not lead any evidence about it and did not seek to satisfy the Court that he would be likely to abscond or otherwise withdraw. Reliance was placed on Schnabel v Lui [2002] NSWSC 1184; 56 NSWLR 119, where it was said at [17] about the words "abscond" and "withdraw" in a similar context:

The other difficulties in relation to the interpretation of this rule arise as to the meaning in it of "abscond" and "withdraw". "Abscond" is defined in the Macquarie Dictionary (3rd ed, 1997) as, "to depart in a sudden and secret manner, especially to avoid legal process". There is, I think, no doubt, and it is not contended otherwise, that the word "abscond" contains the notion of a purpose of avoidance. The word "withdraw" as used in the rule is relevantly defined in the same Dictionary as "to retire; retreat; go apart or away". I do not think there is a notion in the word "withdraw" of a purpose of avoidance. However, I do not think that the word is used in the rule to refer to a fleeting or a short absence. It seems to me that the word suggests an absence that is of some considerable length or indefinite. This is because it is in a context where what is contemplated is that the alleged contemnor will not appear in answer to the proceedings. The absence, in any event, of a sense of purpose from the meaning of "withdraw" in the context is confirmed by what Kirby P said in Registrar v Ritter.

186    It is further submitted on behalf of Mr Mensink that, had the requirements of r 42.14(2) been considered by the primary judge, the following obstacles would have arisen:

(1)    there was no evidence that Mr Mensink had actual awareness of the orders and, in the absence of actual knowledge, it is impossible to conclude that he was about to abscond or withdraw, constructive knowledge not being sufficient; and

(8)    in his affidavit of 31 January 2017, Mr Mensink deposed to his intention to return to the jurisdiction in July 2017, which militated against the necessary state of satisfaction being reached.

187    The respondents submit that the uncontested evidence was that Mr Mensink was outside Australia and had already withdrawn from the jurisdiction, with the above quote from Schnabel establishing that the Court does not need to be satisfied that the withdrawal was for the purpose of avoidance, provided that it was of "some considerable length or indefinite". It is further submitted that the evidence also supported the conclusion that Mr Mensink had absconded, because his unreasonable non-compliance with the Court's previous orders indicated that he was absconding in the sense of avoiding being examined. It is thus submitted that either basis for satisfying r 42.14(2) was present.

188    In reply, it is submitted on behalf of Mr Mensink that neither the respondents nor the primary judge had, in terms, addressed the requirements of r 42.14(2), and that this could not now be remedied on appeal. In relation to the evidence relied upon as to Mr Mensink's absence from Australia and his affidavit evidence concerning his reasons for non-attendance on 22 February 2017, it is submitted that none of this evidence was directed to r 42.14(2), and that no such finding was open in the absence of a finding that Mr Mensink was aware of the orders of 27 February 2017, being a finding that the primary judge did not make. It is again emphasised that Mr Mensink's stated intention to return to the jurisdiction in July 2017 mitigated against any conclusion that he had withdrawn from the jurisdiction or absconded in the relevant sense.

189    The submissions for Mr Mensink have a surreal quality to them. The evidence before the primary judge indicated that Mr Mensink had left Australia by 10 June 2016, having done so by deliberately exploiting a gap in the examination process arising from the need for eight days' notice of an examination, so as to give him a window of opportunity to leave Australia without being in breach of any obligation imposed by an examination summons. In his 31 January 2017 affidavit, he clearly indicated that he had no intention of returning to Australia before it suited him, which would not be before July 2017. At the very least, Mr Mensink had withdrawn from the jurisdiction. It would make a nonsense of r 42.14(2) if it could not be shown that someone was likely to withdraw from the jurisdiction because he had already done so. It is not to the point that an intention to return is stated to take place many months later, especially as no clear or firm date was indicated.

190    While r 42.14(2) does contain a mandatory consideration, it is overly technical to suggest that the primary judge was required to engage in some kind of checklist process to address matters that could not seriously be in dispute. The fact and circumstances of Mr Mensink's departure and absence from Australia, and his vaguely stated intention to return sometime on or after July 2017 (which, it may be observed, has never in fact taken place, casting doubt upon its genuineness), make it clear that the requirement of withdrawal had been met and did not warrant separate consideration or elaboration. In the circumstances, it is not necessary to resolve the question of whether Mr Mensink also absconded.

191    This aspect of ground 3 is devoid of merit and should therefore fail.

The requirements of rr 41.06 and 41.07

192    The submissions for Mr Mensink assert that an order must be endorsed and personally served before a finding of contempt can be made in relation to an alleged breach of that order. In a sense, that submission is getting ahead of itself. The contempt proceedings have not yet reached the point of determining whether or not a finding of contempt can be made out. The present issue is not whether the charges of contempt can ultimately be sustained, but, rather, the antecedent question of whether the contempt proceedings have been lawfully commenced in the first place, that also being a necessary pre-condition to a collateral arrest warrant.

193    The statement of charge, reproduced at [144] above, contains two charges:

(1)    The first charge alleges a failure to comply with order 2 made by the primary judge on 27 February 2017. That order clearly required Mr Mensink to do something, namely to appear at an examination at 9.30 am on 27 March 2017. The reference in order 2 to the order made by the registrar on 15 December 2016 is, perhaps, infelicitous, given that the prior obligation to attend for examination arose from the amended summons and not from the registrar's orders. However, the substance is clear enough for present purposes. A charge can always be amended, especially to remedy formal errors or defects.

(4)    The second charge alleges a failure to comply with order 2 made on 15 December 2016. For the same reason, that is also, perhaps, infelicitous, because the prior obligation to attend for examination arose from the amended summons and not from the registrar's orders. The particulars to that charge continue to rely upon the 15 December 2016 orders themselves, rather than to the amended summons issued the next day pursuant to those orders. It is not necessary for the purposes of this appeal to decide whether a charge of contempt could have been brought for failure to comply with the amended summons, rather than with the antecedent orders.

194    The submissions for Mr Mensink assert that it was plain that rr 41.06 and 41.07 applied to the orders that were made on 27 February 2017. That much may be accepted. Those orders required his attendance at the adjourned examination and so engaged the terms of r 41.06. Those orders were also plainly not themselves an examination summons so as to engage r 11.4 of the Corporations Rules in relation to service, leaving only r 41.07 to apply.

195    The submissions for Mr Mensink also assert that rr 41.06 and 41.07 applied to the orders made on 15 December 2016. That proposition cannot be accepted, for the simple reason already noted that the orders made by the registrar on 15 December 2016 did not require Mr Mensink to do anything, and so, in terms, did not engage r 41.06 or, consequently, r 41.07. Rather, the orders made on 15 December 2016 were made under r 11.3 of the Corporations Rules, and resulted in the amended summons issuing the next day in accordance with Form 17. That amended summons was served by substituted service ordered pursuant to r 11.4 of the Corporations Rules. However, as already noted, neither charge of contempt is based upon non-compliance with the amended summons. The viability of the second contempt charge as presently drafted would therefore appear to be sufficiently in doubt that it alone could not safely, at least as presently drafted, support the arrest warrant. However, the arrest warrant does not depend only upon the second contempt charge, but also independently upon the first contempt charge.

196    The submissions for Mr Mensink also contend that neither charge for contempt is sustainable unless both rr 41.6 and 41.07 had been complied with, relying upon the comments to that effect made by Murphy J in Titan Support Systems Inc v Nguyen (No 2) [2015] FCA 359 at [28]-[32]. That is said to be because the orders of 15 December 2016 were not endorsed as required by r 41.06, and because the orders of 27 February 2017 were not personally served as required by r 41.07. Presumably, no issue was taken as to personal service for the orders of 15 December 2016 because of substituted service, and no issue was taken as to the endorsement on the face of the orders of 27 February 2017 because that was clearly present. It is therefore submitted on behalf of Mr Mensink that the arrest warrant should not have issued.

197    The orders of 15 December 2016 themselves did not require Mr Mensink to do anything, such that they could not be relevantly disobeyed and therefore could not be the subject of any viable contempt charge for non-compliance. The question of severance of the arrest warrant only arises if there was a proper foundational (rather than evidentiary or factual) basis for the first contempt charge. In case that reasoning is incorrect, it is necessary to consider the argument in relation to the second contempt charge, namely that it was based on an order that was capable of being disobeyed, by reason, perhaps, of the amended summons, a draft of which was annexed to the 15 December 2016 orders. Considering that argument requires attention to the submission on behalf of Mr Mensink that the endorsement required by r 41.06 was indispensable to bringing charges of contempt, as found by Murphy J in Titan Support Systems. The respondents submit that the endorsement required by r 41.06 is not mandatory in circumstances in which:

(1)    service of the orders had taken place orally, by telephone or electronically, that this had occurred as evidenced in Mr Mensink's affidavit, and that he accordingly had notice of the terms of the 15 December 2016 orders;

(9)    if a person has notice of the terms of an order, a person may be committed for contempt even if that person was not notified of the possible consequences of non-compliance. That is because the effect of deemed service under r 41.07(2) is to satisfy the requirements of both rr 41.06 and 41.07. In support of that submission, the respondents cited a number of cases on that topic and on the related topic of applying r 1.34 of the Federal Court Rules to dispense with the formal requirements of any rule.

198    The cases relied upon by the respondents in support of the argument that the endorsement requirement in r 41.06 was not necessarily required if notification took place in accordance with r 41.07 are as follows:

(1)    In Mason v MWREDC Limited [2012] FCA 1083, Greenwood J observed at [48]:

The structure of the Federal Court Rules 2011 provides for the endorsement obligation arising under rule 41.06 in respect of all three classes of possible enforcement orders namely, committal (imprisonment), sequestration of property and "punishment for contempt", unlike the earlier Order 37, rule 2(3). Rule 41.07(1) provides for personal service of the primary order duly endorsed under rule 41.06 subject to the exception contained in rule 41.07(2). That exception thus operates in relation to each of the three classes of enforcement orders contemplated by rule 41.06. It follows that a person will be taken to have been served with the relevant primary order at the time of notification of the terms of the order either orally or by telephone or electronically, for the purposes of subsequent enforcement proceedings whether they concern an application for orders for committal or sequestration of property or punishment for contempt.

(10)    In Titan Support Systems, Murphy J at [23]-[28] generally agreed with Greenwood J in Mason v MWREDC and made further observations about the differences of rr 41.06 and 41.07 with the previous Rules of this Court. His Honour concluded at [28]:

Rule 41.06 necessitates an endorsement on orders that require the person bound to do, or not to do, an act or thing, and r 41.07(1) requires that the order (in my view carrying the required endorsement) be personally served on the person bound by it (unless the person has had other notice of the order as provided under r 41.07(2)). I consider that unless the required endorsement is included in the order served (or otherwise notified in accordance with Division 41.1) the order may not be enforced by way of committal, sequestration or punishment for contempt.

(11)    In Sydney Medical Service Co-operative Limited v Lakemba Medical Services Pty Ltd (No 2) [2016] FCA 1188, Flick J at [8] cited and quoted from Titan Support Systems at [27]-[28], with evident approval.

199    Further, in Hurd v Zomojo Pty Ltd [2015] FCAFC 148, Besanko and Gilmour JJ said at [155]:

The effect of a lack of endorsement on the orders was raised in the course of submissions before the primary judge, and counsel for the appellants said he did not wish to be heard against the proposition that the lack of an endorsement did not affect the Court's power to find a contempt had been committed and to so declare. That proposition is correct. Under the previous Rules (Federal Court Rules 1979 (Cth) O 37 r 2), an endorsement was required if a person was liable to imprisonment or to sequestration of property. That did not preclude a Court from imposing a fine where there is no endorsement (Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118; (2006) 152 FCR 129 at 145 [68]-[70]). In the same way the Court can make declarations even though the current Rules require an endorsement for imprisonment, sequestration of property or punishment for contempt (r 41.06).

200    On the topic of dispensing with compliance with the Rules, the respondents rely upon the following authority:

(1)    In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2015] FCA 1275; 238 FCR 209, Jagot J observed at [16]:

This endorsement has been replaced by a new version in the 2011 Rules, as set out in r 41.06. Consequently, the 2008 injunction, as served, did not carry the endorsement in that form. However, given that r 41.06 of the 2011 Rules did not exist at the relevant time it cannot be said that the applicant has failed to comply with that rule. Rule 41.06 is not a pre-condition to enforcement of an order by punishment for contempt. As the applicant submitted, if necessary, I could exercise the power in r 1.34 to dispense with any such requirement. Again, I do not consider it is necessary to do so.

(12)    In Sydney Medical Service, Flick J further observed at [43]:

The repeated occasions upon which this proceeding has been before the Court, and the repeated occasions upon which Lakemba Medical Services has been informed of the serious consequences of non-compliance with Court orders, it is further concluded, provide a sufficient reason to dispense with compliance with the requirement imposed by r 41.06 in respect to the initial service of the Orders of 29 June 2016. It was accepted that a copy of the Orders bearing the endorsement required by that rule has subsequently been served together with the Amended Statement of Charge.

201    In reply submissions for Mr Mensink, it is submitted that the cases relied upon by the respondents do not stand for the proposition that the requirements in rr 41.06 and 41.07 were not prerequisites for a finding of contempt, and that they are, in any event, distinguishable. It is submitted on behalf of Mr Mensink that:

(1)    Humane Society International and Sydney Medical Service both concerned ongoing final restraining orders where there was no dispute as to notice of the orders. In Sydney Medical Service, the absence of the penal notice was remedied before the contempt hearing took place and, in the circumstances of that case, that sufficed. In Humane Society International, the rule and thus the penal notice changed, so the new requirement could not have been complied with. In both cases, the respondent was a corporation and therefore no arrest warrant was issued.

(13)    Humane Society International did not refer to Titan Support Systems, being a case that is said to establish at [28]-[32] that a failure to comply with either r 41.06 or r 41.07 is fatal to a contempt charge. Sydney Medical Service did not reach any different conclusion on this issue than Titan Support Services.

(14)    Further, Hurd v Zomojo did not consider Titan Support Services, the point was not argued and reliance was placed on the prior Full Court decision in Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118; 152 FCR 129 at [68]-[70], which only dealt with the materially different earlier version of this Court's Rules.

202    The submissions for the respondents on this topic should be accepted. The factual and rule differences in the cases identified on behalf of Mr Mensink above go to the application of the relevant principles, rather than to their underlying substance. The submissions for Mr Mensink overstate the effect of Titan Support Systems, which approved of the observations by Greenwood J in Mason v MWREDC and, in particular, did not dispute the effect of r 41.07(2) in effectively dispensing with the endorsement requirement in r 41.06 when notification has taken place in accordance with that subrule. In any event, the absence of the r 41.06 endorsement is only fatal to an application for contempt in the limited situation in which committal to imprisonment of an officer of a corporation or organisation is sought and that person was not present when the order was made: see r 41.08(2)(a) and (3). It will not always be necessary for a charge of contempt to be made out that the precise terms of an order have been communicated, let alone that such an order contains the endorsement, although such service and such an endorsement, or their absence, will always be a matter to take into account. As Jagot J pointed out in Humane Society International at [18]:

The point of requiring service of a court order is to bring matters to the attention of the party in question. It is not the case that a party can avoid having to comply with a court order and thereby can avoid the potential of being found in contempt of court merely by engaging in wilful blindness to the terms of the court order. This is demonstrated by various decisions including Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535, Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394 and Tchia v Rogerson (1992) 111 FLR 1.

203    In light of the above authority, it may safely be concluded that:

(1)    notification of orders in accordance with the alternative means in r 41.07(2) dispenses with the requirement for a warning in the form of the endorsement stipulated by r 41.06;

(15)    compliance with rules such as rr 41.06 and 41.07 may be dispensed with in appropriate cases;

(16)    the absence of an endorsement in accordance with r 41.06 will not necessarily be fatal to contempt proceedings; and

(17)    if an endorsement in accordance with r 41.06 is absent, that will almost invariably be a factor to take into account in deciding whether contempt charges should issue, whether to make a finding of contempt if charges do issue, and as to the sanction to be imposed if that finding is reached. However, that factor may be diminished in importance, or even become practically irrelevant, depending on the circumstances.

204    To the extent that Titan Support Systems at [28] might be thought to require that an endorsement be made in accordance with r 41.06 in all circumstances other than where notification has been given in accordance with r 41.07(2) before contempt proceedings may be brought, respectfully, it should not be followed. While that endorsement is ordinarily required, and its absence may well be a most compelling reason for not allowing contempt proceedings either to be brought or to succeed, it is going too far to make the presence of the endorsement mandatory in all circumstances. In that regard, it should be observed that r 41.08, which describes how a contempt application is to be brought, does not, in terms, go that far. The absence of an endorsement (and service in accordance with r 41.07(1)) only prevents an application for contempt being made in the limited circumstances described in r 41.08(2)(c) and (3). Implicitly, such an absence is not fatal in other circumstances.

205    If, contrary to the conclusion reached above, the 15 December 2016 orders did require Mr Mensink to do something, which he could then be found not to have complied with, the absence of the r 41.06 endorsement and the absence of personal service would not have been fatal to the first contempt charge being laid, an arrest warrant being issued and the charge being heard and determined.

206    Turning to the 27 February 2017 orders that formed the basis for the first contempt charge, it is not in doubt that those orders had the endorsement required by r 41.06 of the Federal Court Rules. It has already been concluded that service of the 27 February 2017 orders made by the primary judge in accordance with either limb of r 41.07 was not demonstrated on the evidence before the primary judge. It has also already been concluded that this was not necessary to meet the requirements of r 11.10 of the Corporations Rules of having conveyed to Mr Mensink the fact that the examination scheduled to take place on 22 February 2017 (a date that was well known to Mr Mensink, as evidenced by his own affidavit) had been adjourned to 27 March 2017. The remaining question is whether the absence of proof of service of the orders of 27 February 2017, duly endorsed in accordance with r 41.07, was fatal to the valid issue of the statement of charge and thus the valid issue of the arrest warrant.

207    The short answer is that service in accordance with r 41.07 is not fatal, for the same reason that an endorsement in accordance with r 41.06 is not fatal. The Rules require both service and endorsement in that form, but the absence of either is not fatal. That is because the Rules do not so provide, especially by the terms of r 41.08 and, in particular, the limited stipulation in the Rules of when the absence of either will preclude an application from being made. The reasons for taking this stance are obvious enough, including those expressed by Jagot J in Humane Society International at [18], and reproduced above at [200(1)]. The contempt power is not meant to be a limp and technical response to disobedience of orders made by a Court, to be governed by pedantic adherence to form ahead of substance. In some cases, the absence of an endorsement or of actual service of orders will be of no moment in all the circumstances. Contempt is meant to be a serious response, but still a flexible remedy, to be applied fairly and judicially and to enforce not just orders and the conduct of proceedings free of improper influence, but also the integrity of judicial and related proceedings and thereby the administration of justice: see Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; 350 ALR 216 at [97].

208    Contrary to the submissions made on behalf of Mr Mensink, the mere fact that the primary judge did not make orders for a warrant to issue for his arrest on either 23 or 24 February 2017 did not, without more, operate to absolve Mr Mensink of whatever might flow from that prior conduct, nor guarantee that no action would later be taken in response. Rather, his Honour is to be regarded as having given Mr Mensink a second chance to appear. If Mr Mensink had availed himself of that second chance, in all probability, nothing would have come of the earlier failure to appear because the purpose of securing attendance would ultimately have been achieved. However, if he did not take advantage of the opportunity that had been given to him to make good his failure to appear on 22 February 2017, then the consequences of that antecedent failure to appear remained actionable.

209    The primary judge was entitled to form the view that a contempt charge in relation to the 27 February 2017 orders and an arrest warrant in respect of that charge should both issue. His Honour had dealt with those issues at various times and to varying degrees on 23 and 24 February 2017, when making the 27 February 2017 orders, and then again on 27 and 28 March 2017. His Honour had proceeded in a manner that was highly beneficial to Mr Mensink in giving him a second chance to appear. Mr Mensink plainly knew about the 22 February 2017 examination date, given his affidavit of 31 January 2017. He had been legally represented at the hearing on 23 and 24 February 2017 following his non-appearance, including during the fixing of a later examination date. He had an application made on his behalf by counsel and his solicitor to set aside orders separately requiring him to attend on the adjourned examination date of 27 March 2017. He had his solicitor appear in relation to his non-appearance on that date, and in relation to the application made for contempt charges and for an arrest warrant to issue. There was no reasonable alternative to the conclusion made by the primary judge that Mr Mensink had withdrawn from the jurisdiction, and that this state of affairs would continue for a considerable length of time, if not indefinitely. In all the circumstances, the primary judge was well and truly justified in signing the statement of charge in relation to the first charge, and in ordering that an arrest warrant issue and signing that warrant in respect of the first charge. The same cannot be said of the second charge, because of the limited terms of the 15 December 2016 orders. However, that portion of the statement of charge is readily severable.

210    It follows that the second aspect of ground 3 should succeed in relation to the arrest warrant insofar as it concerns the 15 December 2016 orders and the second charge of contempt, although not upon the basis of any argument advanced on behalf of Mr Mensink. However, the second aspect of ground 3 should fail in relation to the arrest warrant insofar as it concerns the 27 February 2017 orders and the first charge of contempt. Because the two bases for the arrest warrant are independent, the erroneous part of the arrest warrant is severable and, accordingly, ground 3 must fail overall.

Conclusion

211    As grounds 1, 2 and 3 must fail, the appeal must be dismissed with costs.

Associate:

Dated:    28 June 2018