O'Sullivan v Commonwealth Bank of Australia [1995] FCA 196

CATCHWORDS

BANKRUPTCY - bankruptcy notice - application to set aside - application to set aside service - notice served in foyer of barrister' chambers adjoining Law Courts Building - whether a contempt of court - whether procuration of notice was an abuse of process or for a dishonourable purpose.

CONTEMPT - whether service of a bankruptcy notice in foyer of barristers' chambers adjoining Law Courts Building constitutes a contempt.

Cole v Hawkins (1738) Andrews 275 (95 ER 396).

Poole v Gould (1856) 1 H & N 99 (156 ER 1133).

R v Jones; Ex parte McVittie [1931] 1 KB 664.

Re Janet Mary Tole; Ex parte George Edmund Tole (1933) 50 WN (NSW) 216.

Baldy v Jackson [1976] 1 NSWLR 19.

RE RICHARD GUILDFORD O'SULLIVAN; EX PARTE RICHARD GUILDFORD O'SULLIVAN v COMMONWEALTH BANK OF AUSTRALIA

No NN 3884 of 1994

Lindgren J

Sydney

5 April 1995.

IN THE FEDERAL COURT OF AUSTRALIA)

GENERAL DIVISION )

BANKRUPTCY DISTRICT OF THE ) No NN 3884 of 1994

STATE OF NEW SOUTH WALES )

Re: RICHARD GUILDFORD O'SULLIVAN

Ex parte:

RICHARD GUILDFORD O'SULLIVAN

Applicant/Debtor

COMMONWEALTH BANK OF AUSTRALIA

Respondent/Creditor

CORAM: Lindgren J

PLACE: Sydney

DATE: 5 April 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The Debtor pay the Creditor's costs.

NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

GENERAL DIVISION )

BANKRUPTCY DISTRICT OF THE ) No NN 3884 of 1994

STATE OF NEW SOUTH WALES )

Re: RICHARD GUILDFORD O'SULLIVAN

Ex parte:

RICHARD GUILDFORD O'SULLIVAN

Applicant/Debtor

COMMONWEALTH BANK OF AUSTRALIA

Respondent/Creditor

CORAM: Lindgren J

PLACE: Sydney

DATE: 5 April 1995

REASONS FOR JUDGMENT

INTRODUCTION:

There is before the Court an application by Richard Guildford O'Sullivan ("the Debtor") for an order setting aside bankruptcy notice number NN 3884 of 1994, or alternatively an order setting aside service of that bankruptcy notice upon him on 14 November 1994, or alternatively to either of those remedies, an order restraining the respondent ("the Bank") from filing a creditor's petition relying upon that service.

The grounds relied on by the Debtor may be summarised as follows:

1. (a) that in procuring the issue of the bankruptcy notice, the Bank had an intention of causing the Debtor to attend at the Supreme Court of New South Wales in the Law Courts Building for the ostensible purpose of being further examined on behalf of the Bank pursuant to an order for examination in proceedings No 50282 of 1989 in the Common Law Division of that Court ("the Common Law proceedings") but actually for the purpose of enabling service on him of the bankruptcy notice; and

(b) that to procure the issue of the bankruptcy notice in those circumstances was either

(i) an abuse of this Court's process, or at least

(ii)the procuring of the issue of this Court's process for a dishonourable purpose,

in either of which cases the Bank will not now be permitted by this Court to take advantage of the issue of the bankruptcy notice.

2. that in procuring the issue of the bankruptcy notice, the Bank failed to discharge a duty to disclose to the Registrar in Bankruptcy:

(a) that the Bank had the intention referred to in para 1 (a) above; and/or

(b) that the Bank intended that the bankruptcy notice be served on the Debtor in the precincts of the Supreme Court of New South Wales in the Law Courts Building on the occasion when he attended at that Court ostensibly for the purpose of being examined as referred to in para 1 (a) above;

3. that the bankruptcy notice was in fact served in the precincts of the Supreme Court and service should be set aside because service of process in the precincts of a court is a contempt of court.

FACTS:

In the Common Law proceedings, the Bank obtained judgment against the Debtor for $140,000.00 with effect on 30 March 1990. Apparently $100,000.00 was paid. The Bank procured the issue in the Common Law proceedings of an order for examination which was returnable on 19 September 1994. There were two parts of the order. The first part required the Debtor to attend at the Supreme court in the Law Courts building for the purpose of being examined as to the questions:

"(i) whether any and, if so, what debts are owing
to him; and

(ii) whether he has any and, if so, what property or means of satisfying the judgment or order by which he is bound."

The second part of the order for examination required the Debtor to produce all documents or things in his possession, power or custody relating to those questions, including:

"(i) any bank or building society passbooks;

(ii) all bank or building society statements issued after 1 January 1991;

(iii) certificates of registration of any motor vehicles owned by him;

(iv) share certificates;

(v) any document evidencing a debt owed to him;

(vi) any document relating to or evidencing the ownership of real property."

On 19 September 1994 the Debtor did not appear, and the hearing was adjourned to 26 September 1994. On that date Mr P C See of counsel appeared for the Bank and Mr S J Burchett appeared for the Debtor. The examination took place before Registrar Harrison. It occupied some one and three quarter hours, and the transcription of it comprises 36 pages. I will say more about the course of the examination later.

The Debtor did not produce documents in answer to the second part of the order for examination. He said that he had not been able to do so because the relevant documents were in storage. However, he indicated that he would be in a position to produce them when certain property, including the documents, was out of storage. There was discussion about adjourning part 2 of the order for examination and production and inspection of the documents out of court in the meanwhile. Against the possibility that there might be further oral examination arising out of the documents produced, the Registrar adjourned the order for examination in its entirety (rather than just part 2 dealing with documents) to Monday, 14 November 1994. The Debtor undertook to produce the documents to the Bank by 4.00 pm on Thursday, 10 November. The Registrar said this:

"Yes, that gives them a few days to look at them. The examination is stood over to 14 November 1994, the plaintiff is to notify Mr O'Sullivan's solicitors prior to 4.00 pm on 10 November if his attendance is required on the 14th."

The Registrar ordered the Debtor to pay the Bank's costs of 19 and 26 September.

On Monday, 7 November 1994, the Debtor's solicitors, Whitfields, forwarded to the Bank's solicitors, Abbott Tout, copies of two share certificates in respect of shares of the Debtor in Nilwood Holdings Pty Ltd ("Nilwood"), four summary bank account statements from Citicorp and statements from the Hibernian Credit Union Ltd. The covering letter concluded:

"We note that the originals of the above can be made available if required. You might advise if you wish to cross-examine our client on the 14th inst. We note that our client has now provided all documentation to comply with paragraph 2 of the order for examination."

By a without prejudice letter from Whitfields to Abbott Tout of the same date, the Debtor offered to settle by paying $5,000.00 on or before 13 November 1994 and $35,000.00 (being the balance of the debt) on or before 28 February 1995.

On Tuesday 8 November, Abbott Tout replied to Whitfields' two letters dated 7 November as follows:

"We advise our client requires Mr O'Sullivan to be in attendance at Court on 14 November 1994 for further examination.

We request that the originals of the documents be made available on that day.

We are seeking our client's instructions in relation to Mr O'Sullivan's offer of settlement and will advise you when those are obtained."

On Wednesday, 9 November 1994 Abbott Tout prepared a form of application for issue of bankruptcy notice. It is signed and bears that date. The following day, Thursday, 10 November 1994, Abbott Tout wrote to the Registrar of this Court a letter enclosing a form of bankruptcy notice and an application for its issue. The letter, omitting formal parts, read as follows:

"We act for Commonwealth Bank of Australia.

We request the attached Bankruptcy Notice be issued as a matter of urgency as we have had difficulty
locating the debtor but have instructions we will be able to serve the document on Monday 14 November 1994.

We thank you for your assistance."

On Monday 14 November 1994, the examination of the Debtor resumed in the Supreme Court in the Law Courts Building, this time before Prothonotary Whalan, at about 1.00 pm. Mr See who again appeared for the Bank indicated that the matter would not take much time. The transcript records the following exchange at the beginning of the examination:

"SEE: I don't plan to ask more than just a handful, ten questions of the examinee. I would have thought the matter could be - a question of costs for the matter to be dealt with in five to ten minutes.

REGISTRAR:I'll give you ten minutes now."

I will also say more about the course of this resumed examination later. It occupied some fifteen minutes, and the transcript of it comprises 6 pages. Mr See sought costs. Mr Burchett who again appeared for the Debtor opposed that application.

Mr Burchett submitted that the further hearing had been wholly unnecessary. The thrust of Mr Burchett's submission to the Prothonotary was that the examination summons procedure had been abused on 14 November since the Debtor had, only the preceding week, offered payment, and the further examination which had occurred had served only to waste time and expense. He submitted to the Prothonotary:

"There had already been a lengthy examination before the Registrar previously. Might I also add, the documents that were produced today had been previously produced informally to the solicitors for the Bank. There's just simply no need today for today's appearance."

Nonetheless, noting that the examination had been adjourned to 14 November for the production of documents, the Prothonotary again ordered the Debtor to pay the Bank's costs. He also noted that the examination was concluded.

What the Debtor, his solicitor and counsel did not know during the hearing on 14 November is that an unidentified man sitting in the back of the Court was a process server engaged by the Bank to serve the bankruptcy notice.

John Michael Whitfield, the solicitor for the Debtor, gave affidavit evidence of what happened next. At about 1.15 pm those present (only Messrs Burchett and See of counsel, the Debtor and his wife, the unidentified man and Mr Whitfield had been in the court room, in addition to the Prothonotary and Court staff) left the court room. The unidentified man conversed with Mr See and remained on the floor of the Law Courts Building where the court room was located, while Mr Whitfield, the Debtor, the Debtor's wife and Mr Burchett conversed. The Debtor, his wife, and Messrs Burchett and Whitfield entered the lift. Mr See of Counsel and the
unidentified man entered the same lift.

Having walked out of the lift on the ground floor, the Debtor, his wife and Messrs Burchett and Whitfield again spoke, this time in the lobby of the Law Courts Building. Mr See and the unidentified man were some ten metres away. Mr Whitfield, the Debtor, and his wife walked along the passage connecting the Law Courts Building and the adjoining building which has the address 180 Phillip Street Sydney and comprises barristers' chambers known as Wentworth Chambers. The unidentified man started to follow them quickly and when they moved from the Law Courts Building into the foyer of Wentworth Chambers, he handed the bankruptcy notice to the Debtor.

An affidavit by Keith John Hensby, licensed commercial agent, is to the effect that about 1.30 pm on 14 November he served the Debtor with the bankruptcy notice by delivering it to the Debtor personally in the foyer of Wentworth Chambers, Phillip Street Sydney. Mr Hensby also deposed as follows:

"I identified the person I served as the said Richard Guildford O'Sullivan, as I was present when he appeared in Court before the Prothonotary at approximately 1.00 o'clock in the afternoon on 14 November 1994."

There is no conflict between the affidavit evidence of Mr Whitfield and Mr Hensby. Neither was cross-examined.

The Debtor's application to set aside the bankruptcy notice
was filed on 25 November 1994.

On 28 November 1994, the last day for compliance with the bankruptcy notice, Abbott Tout wrote to Whitfields advising that the Bank rejected the Debtor's offer of 7 November, adding that the Bank was not prepared to enter into any further term payment programme unless acceptable security was provided to protect the Bank in the event of further default.

REASONS:

1. The "state of mind" of the Bank and its solicitors, Abbott Tout, in procuring the issue of the bankruptcy notice

The Debtor's case of abuse of process, or in the alternative, of dishonourable conduct, depends on my drawing inferences from the undisputed facts.

Counsel for the Debtor did not submit that there was anything untoward in the adjournment of the hearing of the examination on Monday 26 September to Monday 14 November. Clearly, by the time Abbott Tout wrote to the Registrar of this Court on Thursday 10 November enclosing the form of bankruptcy notice for issue, they intended either that the bankruptcy notice be served, or at least that the Bank be in a position to serve it, on the occasion when the Debtor was to attend at the Law Courts Building for the resumption of his examination on the
following Monday 14 November.

The Debtor submits that the further examination on Monday 14 November was perfunctory. He submits that I should infer from this fact and from the proximity in time of Abbott Tout's letters dated 8 November to Whitfields (advising them that the Debtor's attendance was required on Monday 14 November) and 10 November to the Registrar (asking that the bankruptcy notice be issued urgently so that it could be served on Monday 14 November), that when Abbott Tout wrote the earlier letter their purpose was to secure the Debtor's attendance at the Law Courts Building in order to serve the bankruptcy notice on him, and was not to conduct a bone fide examination of him. More relevantly, the Debtor asks that I infer that that continued to represent their state of mind as at Thursday 10 November when they wrote to the Registrar applying for the issue of the bankruptcy notice.

It may be that as at Tuesday 8 November, no decision had been made to issue and serve a bankruptcy notice (it will be recalled that the form of application for it bore date 9 November and that the letter forwarding it to the Registrar was dated 10 November). But even if it had, I do not infer that in requiring the Debtor's further attendance, Abbott Tout did not have a bona fide purpose of examining him further.

There were reasons why, as at Tuesday 8 November, the Bank might well have wished to ask the Debtor some further
questions. The Debtor, who had not appeared on 19 September and who had not produced documents on 26 September, put himself forward on the latter date as being impecunious in the extreme and as being financially dependent on his wife and business associates. Yet a reading of the transcript of the proceedings before the Registrar on 26 September, particularly in the light of supervening events, suggests that on 8 November the Bank might well have been less than satisfied that the Debtor's evidence on that occasion gave a true picture of his means. As will appear below, he had revealed an association with two companies, Nilwood and Telecommunications Technology Pty Ltd ("Telecommunications"). Moreover it was known that he had held 22,000 out of the 29,500 issued shares in Nilwood. Yet he had produced on 7 November share certificates for only 3,000 shares. Moreover, while producing strikingly few records on 7 November, he had offered, by a without prejudice letter of the same date, to pay $40,000.00 on or before 28 February 1995.

While his evidence given on 26 September and the production of so few documents might have moved the Bank to pursue bankruptcy, these outstanding questions were of a kind which might well have caused it and its solicitors to wish to examine the Debtor further before deciding finally whether to follow that course. Certainly these matters stand in the way of my drawing the inference which the Debtor invites me to draw.

The course of the examinations of the Debtor on 26 September and 14 November may now usefully be considered in more detail.

On 26 September 1994, the Debtor said that he and his wife occupied an apartment at 32 Station Street, East Parramatta where they had lived since July 1994 and that they rented the apartment for which his wife, not he, paid the rent. He said that he owned shares in Nilwood as did his wife Leslie Ann O'Sullivan, a Ms Maxwell and Robert Frederick Strange, one quarter each, but conceded, in response to a question, that it could be true that he had owned 22,000 of 29,500 issued shares in Nilwood prior to June 1993. He said that he had resigned as a director of Nilwood as recently as 1 July 1994 and that as at 26 September its directors were his wife and Robert Frederick Strange. He said that he was a director of Telecommunications which had a business office at level 7, 91 Phillip Street, Parramatta; that he worked for Nilwood as a consulting engineer but received no salary from it or from anyone else; that he was not in receipt of social security benefits; and that his wife paid his day to day expenses and gave him amounts for them according to his needs. He gave evidence that no car was owned by himself, his wife or his stepdaughter who lived with them, but that he sometimes drove a 14 year old Datsun 280ZX motor car registered number POM-934 which Nilwood leased from Esanda Finance Ltd.

He said that the reason why he had not brought to the Court any documents in response to order for the examination was
that they were in storage at SRS Removals at Seven Hills as part of an overall consignment, the bulk of which was not his, but was a consignment of which his wife Leslie Ann O'Sullivan and stepdaughter, Noelene Maxwell, were consignors.

In relation to bank accounts, he said that he thought he might still have two but that they may have been cancelled because of bank charges. In any event, he said that any record relating to them was in storage. He said that he could not remember at which branch the accounts were held but thought that the balance was $4.00 or $14.00. He also said that he had an account at "the Hibernian Society" which had a credit balance of some $8.00 or perhaps less. He said he did not know in what street the Hibernian Society was located because he had not been there for so long. He said that he had no other bank or building society accounts and had no shares other than those in Nilwood.

The Debtor said that he owned no furniture, had cash of $9.30 on him which his wife had lent him, and owned clothes, shoes, a hair brush and a 12 year old electric razer with a disposable cartridge.

The Debtor said that he could only speculate on when he would be able to pay the Bank the balance of $40,000.00 of the judgment debt because his circumstances continually changed and he worked in a highly volatile industry, but he thought that it was not unreasonable to say that he would pay out the
Bank within 24 months. He said that he knew of no contract or agreement from which he would derive any income in the foreseeable future, and that he would, in the foreseeable future, continue to depend on his wife and business associates who freely gave him assistance. He said that he was indebted to his wife for $9.00 and some coin which he would pay to her upon going home from the Court.

In relation to the documents in storage, the Debtor said that his wife was responsible to pay the storage fees of some $1,500.00. He said that he would be able to get the documents once the storage containers were released which he thought would happen within a month, because it was within a month that he and his wife would move from the furnished apartment at 32 Station Street, East Parramatta to other accommodation. The goods were in storage because they could not be fitted into the existing apartment.

At the conclusion of the examination, Mr See asked that at least para 2 of the order for examination requiring production of documents) be stood over for a period of some six weeks, no doubt to allow for expiry of the one month period during which the Debtor had said that the stored goods and documents would be released. The Registrar said that it might be preferable if para 1 (dealing with oral examination) was also be adjourned in case Mr See had questions to ask in relation to the documents produced. Accordingly, as noted already, the entirety of the order for examination was stood over to 14
November.

On 14 November, the examination began with Mr See's asking the Debtor for his current residential address to which he responded "31 Keswick Avenue, Castle Hill". He said that he and his wife rented those premises at a rent of some $2,000.00 a month, and that they had moved to that address since his previous examination on 26 September. He said that the property was owned by Nilwood and mortgaged to FAI, that Nilwood had purchased the property as recently as October 1994, and that he had again become a director of Nilwood on 26 October 1994. He said that he thought that Nilwood's purchase had occurred after that date.

The Debtor produced two share certificates showing that he held only 3,000 of the 100,000 issued shares in the capital of Nilwood, four pieces of paper from Citibank and three from the Hibernian Credit Union. He confirmed that these were the only documents which he had answering part 2 of the order for examination.

Questioned about the source of the funds of $40,000.00 offered to the Bank, he said that they were to come from "business associates" being his two co-directors of Nilwood, namely his wife Leslie Ann O'Sullivan and Robert Patrick Strange, who had agreed to advance him the money.

All in all, the further examination on 14 November was of a
kind to be expected in the light of the examination which had occurred on 26 September and of the subsequent events. Mr See took up with the Debtor the issue of his change of address which had been foreshadowed on 26 September, the paucity of the documents which had been produced, the question mark over the size of his shareholding in Nilwood, the general question of any changes in his financial circumstances since the examination on 26 September, and the question of the source of funds which had enabled him to make the recent offer to pay $40,000.00 to the Bank. That the examination occupied about 1/4 hour was also unremarkable, perhaps the more so because when it began the Prothonotary said that he would give Mr See ten minutes.

I do not think that either taken individually or in combination, the sequence of events in the period 7 November to 14 November and the nature of the further examination on 14 November give rise to an inference that either the Bank or Abbott Tout required the further attendance of the Debtor on 14 November as a sham or subterfuge, concealing a real purpose of luring the Debtor to the Law Courts Building to be served with the bankruptcy notice. On the contrary, the evidence suggests that their intention was to question the Debtor about matters which one would expect them to wish to take up with him. Indeed, on one view it could be considered commendable that the question of the Debtor's solvency was explored one last time before the bankruptcy notice was served. No doubt the Bank would have been pleased not to serve the notice if
the examination on 14 November had revealed that the Debtor had sufficient means to pay or to secure his offer of payment. As it transpired, the further examination confirmed that the Bank had nothing more than the Debtor's unsecured promise to pay. As noted earlier, that unsecured offer of terms payment was rejected by Abbott Tout on 28 November 1994.

In summary, there was no abuse of process or dishonourable conduct in the Bank's and Abbott Tout's insistence on 8 November and thereafter that the Debtor attend for further examination on 14 November, and no abuse of process or dishonourable conduct in their procuring the issue of the bankruptcy notice on 10 November.

2. A duty of disclosure to the Registrar?

The Debtor submits that there was an obligation on the Bank and Abbott Tout to disclose to the Registrar upon applying on 10 November for the issue of the bankruptcy notice, (a) that the forthcoming attendance of the Debtor at the Law Courts Building on 14 November had been contrived under the guise of a desire to examine the Debtor further, when the true purpose was the service of the bankruptcy notice, and (b) that service was proposed to be effected within the precincts of the Court (see below). The Debtor submitted that if either or both of these matters had been disclosed, the Registrar would have been entitled to decline, and either would or should have declined, to issue the bankruptcy notice.

As I have said above, I do not find that the Bank or its solicitors abused the process of the Supreme Court or had a dishonourable purpose in requiring the Debtor to attend for further examination on 14 November. As will appear below I find that service was not effected within the precincts of the Court and hold that even if it was, this is not a ground for the setting aside of service of the bankruptcy notice and was not a contempt of court.

Accordingly, there was no obligation to disclose either of the matters referred to above. It is not necessary for me to deal with other issues raised by the Debtor's "duty of disclosure" submission.

3. Service within the precincts of the Court

Mr Burchett of counsel helpfully took me to numerous authorities ranging from Vandevelde v Lluellin (1662) 1 Keb 220 (83 ER 910) to Baldry v Jackson [1976] 1 NSWLR 19 said to be relevant to the subject of service of process within the precincts of a court. He submitted that service in the foyer of Wentworth Chambers at 180 Phillip Street, Sydney was service within "the precincts" of the Supreme Court of New South Wales which occupies up to, and including, level 13 of the adjoining Law Courts building. He contended that the authorities support either a general proposition that service of any process within the precincts of any court will be set aside as constituting a contempt of that court, or in the alternative, that service of the bankruptcy notice within the precincts of the Supreme Court of New South Wales in the particular circumstances of this case is able to be set aside and should be set aside as constituting a contempt of that Court. The "particular circumstances" relied on are that the Bank improperly compelled the Debtor to attend the Supreme Court, an allegation which I have found not to be made out on the facts.

Early cases referred to the "privilege" from arrest, in particular circumstances, of litigants and witnesses who were attending or on their way to or from attending court, at the time of their arrest. The underlying notion seems to have been that the arrest would interfere with the administration of justice by the court. The arrested litigant or witness would have the remedy of habeas corpus available and there might be a contempt by the arresting officer. The leading "privilege from arrest" cases are Vandevelde v Lluellin (1662) 1 Keb 220 (83 ER 910) Childerston v Barrett (1809) 11 East 439 (103 ER 1073), Ex parte Byne (1813) 1 Ves & B 316 (35 ER 123); Magnay, Rogers & Walter v Burt (1843) 5 QB 381 (114 ER 1293); Chauvin v Alexander (1862) 2 B & S 47 (121 ER 991). It was said that the privilege was that of the court in question: Magnay, Rogers & Walter v Burt, supra, at 393 (ER 1298).

Prior to the present century, there were two cases of "service of process in the precincts of a court" in which it had to be considered whether the privilege from arrest should be extended to a "privilege from service". The first was Cole v Hawkins (1738) Andrews 275 (95 ER 396) (more shortly reported at 2 Strange 1094-1095 (93 ER 1054) on which the Debtor relies. The defendant in an action of assault and battery was upon the steps leading to the court in Westminster-Hall at a time when his case was about to be called on. In these circumstances and at that time, a bill of Middlesex was served on him by an attorney named Whitten. Proceedings were commenced in the King's Bench that Whitten be attached for contempt of court.

It seems to have been accepted that an ordinary arrest of the defendant in the same circumstances and at the same time and place would have been a contempt. This clearly would have prevented him from attending to his case, and so interfered with the court's administration of justice.

The issue before the King's Bench was whether a contempt had been committed. In fact, however, the attorney consented to an order against him for the costs of the contempt proceedings and agreed to "waive the proceedings under the bill of Middlesex". The King's Bench held that in the light of this he should not be attached.

Strange's short report of the case is to the effect that "the privilege was designed as well to prevent any interruption of the business of the Court, and [service of the bill of Middlesex] was equally a contempt" (at 1094-1095 (ER 1054)). It is the broader statement in Andrews' lengthier report that has given rise to difficulty: "the whole Court (except Page Just who hesitated) were clearly of opinion, that the service of a process in the sight of the Court is a great contempt, and punishable by attachment" (at 275 (ER 396)). Lee CJ said, however, that it was an altogether different question whether service of the process was void.

It seems possible to distinguish the holding in Cole v Hawkins that the service of the bill of Middlesex in that case involved a contempt on the basis of the special nature of that process and its affinity with ordinary arrest cases. The bill of Middlesex was so called because the King's Bench sat, at the time, in the County of Middlesex. The bill was a procedural device by which the King's Bench gained jurisdiction over purely civil cases at the expense of the Common Pleas. Its basis was the King's Bench's jurisdiction in (a) nearly all matters over its own officials and anybody in its custody, and (b) trespass. In summary, the bill alleged a fictitious trespass by the defendant and ordered that the sheriff arrest him and bring him before the King's Bench on a named future date. The bill also, as if by way of an afterthought, referred to the true underlying cause of action, such as debt. If the defendant appeared or put in bail, he was deemed to be in the custody of the marshal (the prison-keeper of the King's Bench), and so the King's Bench had jurisdiction. (For an account of the bill of Middlesex, see Blackstone's Commentaries, vol III, Ch 19 at 285 and appendix III No 3; Stephen's Commentaries on the Laws of England, 8th ed, 1880, vol III, pp 336-337, fn (l); S F C Milsom, Historical Foundations of the Common Law (2nd ed, 1981) at 62-65; David M Walker, The Oxford Companion to Law (1980), tit. "Middlesex, Bill of"; John Burke (ed) Jowett's Dictionary of English Law (2nd ed, 1977), vol 1 tit. "Bill of Middlesex"; J H Baker, An Introduction to English Legal History (3rd ed, 1990) at 50, 53, 55; Holdsworth's History of English Law (6th ed, revised, 1938) vol 1, 219 et seq; Marjorie Blatcher, The Court of King's Bench 1450-1550 (University of London, The Athlone Press, 1978), ch VII, "Remedy from Within".)

It seems that the bill of Middlesex served in Cole v Hawkins by requiring the person served either to submit to arrest or to appear or put in bail, would have prevented him from attending to his case which was about to be called on. This view of the case is consistent with Strange's report of it noted earlier. Consistently with that report the King's Bench must have accepted that service caused an "interruption of the business of the Court". On this basis, it is understandable that service of the bill was considered contemptuous. The reason is not the place of service as such, but the fact that service of the bill, like an ordinary arrest, would have interfered with a court's administration of justice.

In Poole v Gould (1856) 1 H & N 99 (156 ER 1133), the Court of Exchequer Chamber had occasion to consider Cole v Hawkins - 118 years after it had been decided. The defendant was served with a writ of summons in the Court of Queen's Bench while attending in obedience to a subpoena to give evidence in a cause in which he was the plaintiff. He applied to set aside service. In the course of argument, Martin B remarked that in Cole v Hawkins there had been no application to set aside service. The Court declined to set aside service, saying this:

"Without giving encouragement to litigation or oppressive acts, we ought to take care that the service of process is not set aside on slight grounds. Every opportunity ought to be afforded to serve debtors with writs." (at 100 (ER 1134))

Similarly, the twentieth century cases seem to be uniformly against a general proposition that service of process in the precincts of a court will, ipso facto, be set aside: see R v Jones; Ex parte McVittie [1931] 1 KB 664; Re Janet Mary Tole; Ex parte George Edmund Tole ("Re Tole") (1933) 50 WN (NSW) 216 (NSW/Long Innes J); Baldry v Jackson [1976] 1 NSWLR 19 (NSW/Yeldham J); Ex parte Brantschen, unreported, "The Times" 7 December 1990. In McVittie's case, supra, a judgment creditor had been frustrated over a long period in attempting to serve successive judgment summonses on the judgment debtor. The creditor's solicitor eventually managed to effect service in the corridor of a court where the judgment debtor was waiting for a case in which he was plaintiff to be called on. Service was effected some 15 minutes before the court's business was due to commence. The case is a strong authority against the general proposition for which the Debtor here contends, since the judgment debtor was actually in a corridor of the court building waiting for his case to be called on.

In the course of argument, MacKinnon J remarked, with reference to Cole v Hawkins, that a bill of Middlesex was "a writ for the immediate arrest of the party against whom it was issued" (at 668). But the Court did not distinguish Cole v Hawkins. Rather, Lord Hewart CJ remarked that the case was nearly 200 years old, noted Poole v Gould, supra, and concluded that although he could not exclude the possibility that in particular circumstances service of process within the precincts of a court might amount to contempt, this was not so in the case at bar. Avory and MacKinnon JJ agreed. MacKinnon J added that he regarded the supposed rule as having become "entirely obsolete" (at 671) although he too conceded that there might be circumstances in which service of a writ within the precincts of a court might amount to contempt of court.

In Re Tole, supra, Long Innes J approached the question similarly, and held that service of a subpoena ad testificandum outside a court upon a party to proceedings in progress within requiring her to attend to give evidence in those proceedings was not a contempt.

In Baldry v Jackson [1976] 1 NSWLR 19, Fanning sued Baldry, the driver of a car in which Fanning was a passenger, in respect of personal injuries suffered by Fanning when the car was involved in an accident. Another vehicle involved was driven by Jackson who resided in Queensland. Fanning subpoenaed Jackson to attend court in Sydney to give evidence. After he had given evidence but before being excused from further attendance, he was served, on the footpath immediately outside the entrance to the court, with a statement of claim filed by Baldry against him seeking contribution or indemnity. After returning to the court room he was excused from further attendance and returned to Queensland.

Yeldham J reviewed the authorities and concluded that not only was no contempt of court committed, but even if there was, service was valid. I am, with respect, of the same view in relation to the present case.

In my view, it is not the law that service of any process within the precincts of a court constitutes a contempt of that court, and even if it were, it would not follow that service would be set aside. Whether conduct constitutes contempt of court by reason of its being calculated to interfere with the administration of justice by a court is to be determined by reference to matters of greater substance than the general proposition contended for by the Debtor would allow. No doubt the physical proximity of conduct to a court may be a factor sometimes to be taken into account when a contempt of court of a relevant kind is alleged. It cannot be said that service of process within the precincts of a court can never with other circumstances, constitute a contempt. But this is hardly a useful statement: analysis shows that it signifies only that service within the precincts of a court is not precluded from being part of contemptuous conduct.

The general proposition for which the Debtor contends depends on the notions of "process" and "precincts". A bankruptcy notice is issued by the Registrar in Bankruptcy, requires the debtor to do something within a stated time after service, and warns that in default the debtor will have committed an act of bankruptcy on which bankruptcy proceedings may be taken. The service of such a notice after the debtor has left the court building after conclusion of his business there is far removed from a case such as Cole v Hawkins in which process requiring immediate attention was served on the steps of a court just before the recipient's business at court was to begin.

The "precincts" of a court is a physical notion. For certain kinds of contemptuous conduct, such as conduct involving noise or other forms of disturbance, it is not difficult to conceive of the word's being used to refer to a range of distances from a court room, varying according to the nature of the conduct in question. But with service of process, the position is otherwise: what is meant by "precincts" could scarcely vary according to the kind of process served. Thus, according to the general proposition contended for by the Debtor, there is a boundary within which service of process is contemptuous contempt and outside which it is not.

Even if authority established the general proposition contended for by the Debtor, I do not think that the foyer of Wentworth Chambers, 180 Phillip Street, Sydney is part of "the precincts" of the Supreme Court of New South Wales, levels 4-13 Law Courts Building, Queens Square Sydney. I can take judicial notice of the location and use made of that foyer. It is much used by barristers and solicitors and their staff, litigants and witnesses and their friends and associates as a means of access from the building accommodating Wentworth Chambers and Selborne Chambers to the foyer of the Law Courts Building into which it leads. But it is not part of the Law Courts Building and is not a public place. It is therefore not even akin to the steps of a court building (Cole v Hawkins, supra) or a footpath adjoining a court building (Baldry v Jackson, supra).

I should add that I do not think that knowledge that process can be served in the foyer of Wentworth Chambers as freely as elsewhere is apt to interfere with the administration of justice in the adjoining Law Courts Building by, for example, discouraging litigants and witnesses from attending court in the Law Courts Building.

CONCLUSION:

For the foregoing reasons, the application should be dismissed and the Debtor should be ordered to pay the Bank's costs ofthe application.

I certify that this and the preceding 28 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated: 5 April 1995

Heard: 22 March 1995

Place: Sydney

Decision: 5 April 1995

Appearances: Mr S J Burchett of counsel instructed by Whitfields, solicitors appeared for the applicant.

Mr D Ronzani of counsel instructed by Abbott Tout, solicitors appeared for the respondent.

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