Federal Court of Australia

Registrar of the Federal Court of Australia v Mensink (Stay Application) [2023] FCA 1581

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s application made on 27 April 2023 for an order staying or dismissing the contempt proceeding be dismissed.

2.    The respondent pay the applicant’s costs of the application.

3.    The proceeding be listed for a case management hearing on 31 January 2024 at 10.15 am.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The respondent, Clive Theodore Mensink, has been charged with contempt of court. The proceeding is prosecuted by the applicant, the Registrar of the Federal Court of Australia (the Registrar).

2    The trial of the contempt proceeding was to commence on 27 April 2023. However, on that morning, Mr Mensink made an oral application for orders staying or dismissing the proceeding.

3    Mr Mensink departed Australia in 2016 and has not returned. He was not personally served with the application and statement of charge commencing the contempt proceeding, but was served under an order for substituted service. He contends that:

(a)    the Court lacks jurisdiction in the matter because service under the order for substituted service is not effective; and

(b)    the trial should not be permitted to proceed in his absence because that would contravene his fundamental right to a fair trial.

4    This judgment determines Mr Mensink’s interlocutory application. I will explain the background of the matter before addressing the parties’ submissions.

Background

5    I set out the history of this proceeding in some detail in Registrar of the Federal Court of Australia v Mensink [2021] FCA 1152. I will repeat the aspects that are of present significance.

6    On 22 April 2016, the creditors of Queensland Nickel Pty Ltd (Queensland Nickel) resolved that the company be wound up. On 18 May 2016, Dowsett J made orders appointing special purpose liquidators (SPLs) to investigate certain dealings and transactions of Queensland Nickel. Mr Mensink had been a director of Queensland Nickel during substantial parts of the period since 2012.

7    On about 6 June 2016, Mr Mensink departed Australia, apparently for a holiday. Mr Mensink has not returned to Australia, and may be in Bulgaria at present.

8    On 15 December 2016, District Registrar Baldwin made orders for the issuing of an amended examination summons directed to Mr Mensink pursuant to s 596A of the Corporations Act 2001 (Cth) and permitting substituted service of the summons. Mr Mensink failed to attend before the Court for examination on the return date of 22 February 2017.

9    On 27 February 2017, Dowsett J ordered that 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. Mr Mensink failed to attend before the Deputy Registrar on 27 March 2017.

10    On 28 March 2017, the SPLs filed an interlocutory application pursuant to r 42.11 of the Federal Court Rules 2011 (Cth) (the Rules) seeking orders that Mr Mensink be punished for contempt of court (the contempt application). The accompanying statement of charge alleged that Mr Mensink had failed to comply with:

(a)    the summons for examination requiring him to attend before the Court on 22 February 2017; and

(b)    the order of the Court of 27 February 2017 requiring him to attend before the Court on 27 March 2017.

11    On 28 March 2017, Dowsett J made orders for substituted service of the contempt application and the statement of charge. His Honour also ordered that a warrant issue for the arrest of Mr Mensink.

12    On 5 August 2020, Reeves J ordered that the Registrar take over the prosecution of the contempt application. On 29 October 2020, the Registrar amended the statement of charge.

13    On 10 June 2021, Mr Mensink filed an amended interlocutory application seeking summary dismissal of the amended statement of charge. On 24 September 2021, I dismissed Mr Mensink’s application for summary judgment. An appeal against my judgment was dismissed by the Full Court: see Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102; (2022) 294 FCR 101. An application for special leave to appeal was dismissed by the High Court: see Mensink v Registrar of the Federal Court of Australia [2022] HCASL 184.

14    The trial of the contempt proceeding was to commence on 27 April 2023. It did not commence because Mr Mensink made his oral application. After a day of argument, the parties asked for an adjournment. The matter returned for further argument on 14 July 2023, followed by further written submissions on 12 and 21 September 2023.

Whether Mr Mensink has been effectively served

15    Mr Mensink contends that he has not been properly served with the contempt application and statement of charge and, accordingly, the Court lacks jurisdiction to hear and determine the contempt proceeding.

16    Mr Mensink submits there are two reasons why service under the order for substituted service made on 28 March 2017 by Dowsett J was ineffective:

(a)    in a contempt proceeding, all reasonable attempts to effect personal service must have been made and failed before there can be an effective order for substituted service.

(b)    leave was required under r 10.43(1) of the Rules to effect service outside Australia, but such leave was never obtained.

17    I will consider each of these arguments in turn.

Is there an additional requirement in contempt proceedings that all reasonable attempts to effect personal service must have been made and failed before there can be an effective order for substituted service?

18    On 28 March 2017, an application for substituted service of the contempt application upon Mr Mensink was filed.

19    Rule 10.24 of the Rules provides:

10.24    Substituted service

If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:

(a)    substituting another method of service; or

(b)    specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c)    specifying that the document is taken to have been served:

(i)    on the happening of a specified event; or

(ii)    at the end of a specified time.

…

20    The affidavit in support of the application for substituted service referred to the possibility that Mr Mensink may be somewhere in the Netherlands, but indicated that it was uncertain which country he was in. There was also evidence that Mr Mensink’s solicitor had not been able to get in contact with him, and that the solicitor had made enquiries of Mr Mensink’s associates and family but none of them knew his whereabouts.

21    On 28 March 2017, Dowsett J, evidently satisfied that it was not practicable to personally serve Mr Mensink, made orders including the following:

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;

3    Mr Mensink pay the applicants’ costs of the hearing on 27 March 2017 before Justice Dowsett in respect of the amended summons for examination of Mr Mensink dated 15 December 2016, such costs to be taxed on an indemnity basis;

…

22    It may be noted that the Registrar submits that the reference in the second order made by Dowsett J to “order 3” is clearly a typographical error and should instead refer to “order 1”. I accept that submission. Order 2 should be construed as referring to order 1 instead of order 3.

23    On 4 April 2017, service of the documents was effected in accordance with order 1 of the Orders made by Dowsett J.

24    In Laurie v Carroll (1958) 98 CLR 310, the High Court at 323-324 cited with approval the following passage from Dicey’s Conflict of Laws:

The service of the writ, or something equivalent thereto is absolutely essential as the foundation of the Court’s jurisdiction. Where a writ cannot legally be served upon a defendant the Court can exercise no jurisdiction over him. Hence, in an action in personam, the rules as to the legal service of a writ define the limits of the Court’s jurisdiction.

25    More recently, in Ford, in the matter of Careers Australia Group Ltd (in liq) v Mansfield [2022] FCA 173, O’Bryan J referred at [27] to, “the essential role of service in enlivening the Court’s jurisdiction”.

26    The Registrar accepts that the Court’s jurisdiction to hear and determine the contempt proceedings is only enlivened if Mr Mensink has been properly served with the contempt application and statement of charge. The Registrar submits this has occurred through compliance with the orders for substituted service.

27    Mr Mensink submits that service under the orders for substituted service is ineffective, relying upon the judgment of the High Court in Doyle v Commonwealth (1985) 156 CLR 510. In that case, a number of people were squatting in a vacant house. The owners obtained an injunction from the Supreme Court of Victoria restraining all persons who were occupying the house from continuing in occupation. The owners subsequently applied for an order for committal for contempt of court for breach of the order. The application was made ex parte and no attempt was made to name or identify any of the occupiers. A judge of the Supreme Court made an order committing to prison, “the persons who are now the occupiers of the said house or any part thereof have committed a contempt of this court by a breach of the said order…”.

28    The High Court held at 515-516 that an insuperable difficulty in the way of upholding the order for committal was the failure to serve notice of the application upon the persons sought to be committed. Their Honours continued at 516-517:

Although disobedience of an injunction is not a criminal offence and a proceeding for the committal of a person who has wilfully disobeyed an order of the court is not a criminal proceeding except possibly where the proceedings are grounded upon a contumacious or defiant contempt of the court, a proceeding for committal may result in a very serious interference with the liberty of the subject - indefinite confinement. Safeguards similar to those appropriate in criminal proceedings therefore apply. Speaking generally, the notice of motion for committal must be served personally on the person sought to be committed, the charge must be distinctly stated in the notice of motion or other application and the person sought to be committed must be given a proper opportunity to answer the charge…

…

Consistently with this principle, the courts have insisted on the importance of personal service of a notice of motion for committal - indeed, so strictly has the requirement been enforced that it has been held that service could not be dispensed with although counsel undertook to appear for the defendant appeared on behalf of the defendant to object to the motion proceeding: Mander v. Falcke [1891] 3 Ch. 488. The authorities were reviewed in Taylor v. Whelan [1962] VR 306 by Little J. who, in the absence of personal service, refused to proceed with a motion for committal and further refused to make ex parte an order dispensing with service. However personal service is not indispensable; substituted service may be ordered in a proper case. The effect of the cases was stated in Oswald on Contempt, 3rd ed. (1910), p. 205, in a passage cited in Taylor v. Whelan, as follows:

“But when all reasonable efforts to effect personal service of a notice of motion to commit have been made and failed, the Court can and ought to grant an order for substituted service [of the notice of motion].”

There would have been no difficulty in the present case in making an order for substituted service which would have been likely to ensure that the motion was brought to the notice of the persons to be served; e.g., by requiring a copy of the notice of motion to be affixed to or left at the building. However, no efforts were made to effect personal service of a notice of motion, and no order for substituted service was sought or made.

(Most citations omitted.)

29    Mr Mensink submits that Doyle establishes a principle that the originating process in a contempt proceeding must be personally served, and personal service may only be excused where all reasonable efforts to serve personally have been exhausted. He submits that the High Court stipulated that in order to move on a contempt charge, all reasonable efforts to effect personal service must have been made, and have failed, before any substituted service order is obtained. This, he submits, is an indispensable threshold requirement. He submits that since no attempts were made to personally serve him, compliance with the order for substituted service is ineffective.

30    The Registrar submits that Doyle is not authority for a proposition that in a contempt proceeding there is some additional requirement that all reasonable efforts to effect personal service have to have been made and failed before an application can be made for substituted service. The Registrar submits that Doyle merely affirms the orthodox position that ordinarily personal service is attempted before orders for substituted service are made.

31    The issue for determination is whether Doyle establishes a principle that in a contempt proceeding there is an additional requirement that all reasonable efforts to effect personal service must have been made and failed before a substituted service order can be obtained. There was no appeal from the order for substituted service made by Dowsett J and it is no part of my function to decide whether his Honour ought to have that order. As I understand Mr Mensink’s argument, he does not challenge the order for substituted service, but submits that service under that order is ineffective.

32    Mr Mensink’s submission implies that in Doyle, the High Court, by requiring “all reasonable efforts” to be made, imposed some element additional to that which is ordinarily required to be demonstrated to obtain an order for substituted service. He has not specified what that additional element is. However, his submission that compliance with the order for substituted service is ineffective since no attempts were made to personally serve him suggests that under the putative principle, it is not enough to demonstrate that the alleged contemnor cannot be located. The submission suggests the alleged contemnor must have been located and efforts made to hand the documents over or to at least gain access to the person so as to do.

33    The consequence would be that contempt proceedings cannot be prosecuted against a person who is successful in hiding their physical location. That seems inconsistent with Mander v Falcke [1891] 3 Ch 488, cited by the High Court in Doyle, where Kekewich J observed at 493 that it, “would be impossible and inconceivable, and contrary to common sense and justice, that a man who has rendered himself liable to committal should ultimately be able to evade it by keeping out of the way”.

34    In Doyle, the High Court certainly endorsed the view that all reasonable efforts to effect personal service must have been made and failed before an order for substituted service is granted. That is simply an expression of what is ordinarily required to be demonstrated before an application for substituted service is made. The requirement that “all reasonable efforts to effect personal service” may be satisfied by the making of all reasonable efforts to locate the alleged contemnor where such efforts have proven futile: cf Ricegrowers Co-Operative Ltd v ABC Containerline NV (1996) 138 ALR 480 at 482; Commissioner of Taxation v Zeitouni [2013] FCA 1011; (2013) 306 ALR 603 at [66]. It is self-evident that a person cannot be personally served if they cannot be located. The context in which Doyle was decided was that no efforts at all had been made to effect personal service of the application for committal and no order for substituted service had been sought or made. It seems most unlikely that the High Court intended to enunciate a legal principle of broad application quite divorced from the circumstances of the case. I do not accept that Doyle establishes the principle contended for by Mr Mensink.

35    In R (on the Application of Attorney-General of State of Victoria) v Bonacci [2015] VSC 121 at [52], Kaye JA cited Doyle in support of the following the propositions:

The proceedings brought against the respondent are criminal in nature. Ordinarily, the courts insist on strict compliance with the requirement that the process, in such a case, be personally served on the respondent. However, the requirement for personal service is not indispensable in such a case. There is a significant body of authority that supports the proposition that, in an appropriate case, a court may make an order for substituted service in respect of the process by which contempt proceedings have been instituted against a respondent.

36    It is evident that Kaye JA did not discern any principle from Doyle of the kind contended for by Mr Mensink. That reinforces my opinion that no such principle was expressed.

37    Accordingly, Mr Mensink’s first argument concerning the ineffectiveness of substituted service must be rejected.

Was leave required to effect service outside Australia?

38    Mr Mensink’s second argument is that service of the contempt application and statement of charge is ineffective because leave was required to serve the documents outside Australia under r 10.43(1) of the Rules, but such leave was never sought and obtained.

39    It is the case that the SPLs applied for substituted service, but did not apply for leave to serve outside Australia.

40    The version of the Rules in force at the time of the application for substituted service was Compilation No 6. The parties are in agreement that it is necessary to apply that version of the Rules. The references I will make to the Rules are those in Compilation No 6.

41    Part 10 of the Rules deals with service and Division 10.4 with service outside Australia. Rule 10.42 provided that, subject to r 10.43, an originating application which consisted of, or included, one or more of the kinds of proceedings specified in the rule may be served on a person in a foreign country. Mr Mensink does not dispute that the contempt proceeding falls in to one or more of the categories described in r 10.42.

42    Rule 10.43 provided, relevantly:

10.43    Application for leave to serve originating application outside Australia

(1)    Service of an originating application on a person in a foreign country is effective for the purpose of a proceeding only if:

(a)    the Court has given leave under subrule (2) before the application is served; or

(b)    the Court confirms the service under subrule (6); or

(c)    the person served waives any objection to the service by filing a notice of address for service without also making an application under rule 13.01.

Note:    A respondent may apply to set aside an originating application or service of that application—see rule 13.01

(2)    A party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country.

…

(6)    If an originating application was served on a person in a foreign country without the leave of the Court, a party may apply to the Court for an order confirming the service.

…

43    The expression “originating application” was (and remains) defined in Schedule 1 of the Rules to mean, “an application starting a proceeding”. Rule 42.11(1) of the Rules provides that an application made by a party for punishment for contempt must be made by interlocutory application in the proceeding. The SPLs commenced the contempt proceeding under r 42.11(1) by way of interlocutory application. The parties have proceeded on the basis that the interlocutory application was an “originating application” since it started the proceeding against Mr Mensink, so that r 10.43 (not r 10.44) applied.

44    Rule 10.49 provided:

10.49    Substituted service

If service was not successful on a person in a foreign country, in accordance with a convention, the Hague Convention or the law of a foreign country, a party may apply to the Court without notice for an order:

(a)    substituting another method of service; or

(b)    specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c)    specifying that the document is taken to have been served:

(i)    on the happening of a specified event; or

(ii)    at the end of a specified time.

Note:    Without notice is defined in the Dictionary.

45    The Registrar accepts that it was a prerequisite for service outside of Australia that leave be obtained under r 10.43(2). Mr Mensink has been outside Australia at all relevant times. As I understand it, the Registrar does not dispute that service under the order for substituted service was “on a person in a foreign country” within the meaning of r 10.43(1) and (2).

46    The order for substituted service of 28 March 2017 was made by Dowsett J under r 10.24 of the Rules, not under r 10.49 which expressly deals with substituted service where service was not successful on a person in a foreign country: cf Park (Trustee) v Tschannen (Bankrupt) [2016] FCA 137; (2016) 341 ALR 452 at [10]-[11]. His Honour seems to have proceeded on the basis that although Mr Mensink was overseas, service under the order for service would be effected in Australia. Accordingly, his Honour seems to have regarded the Rules relating to service in a foreign jurisdiction to be inapplicable.

47    Again, it is no part of my function to consider whether the orders made by Dowsett J were correctly made. It is necessary, however, to consider whether service has been effective such that the jurisdiction of the Court to hear and determine the proceeding for contempt is engaged.

48    In Ford, O’Bryan J held at [28]:

At common law, the Court’s jurisdiction in actions in personam depends on a defendant’s presence in the geographical jurisdiction of the Court (this Court’s jurisdiction being Australia-wide). This common law position is, however, subject to statutory extensions to jurisdiction that provide for the service of process outside of the jurisdiction where there is some link between the forum and the subject matter involved. It is for this reason that an order for substituted service should not be made in relation to a person outside the jurisdiction who has not been the subject of an order for leave to serve outside of the jurisdiction. Such an order would, in effect, circumvent the requirement (codified by r 10.43) for the Court to be satisfied that it is appropriate to extend its jurisdiction to a person located overseas. The power to order substituted service cannot be used as a way of effecting service outside the jurisdiction for want of any other power to do so.

(Emphasis added, citations omitted.)

49    Accordingly, leave was required under r 10.43(2) of the Rules where the person was physically outside Australia.

50    The SPLs ought to have obtained leave under r 10.43(2) of the Rules to serve the application on Mr Mensink in a foreign country. That leave was not obtained. Consequently, service of Mr Mensink under the order for substituted service was, under the terms of r 10.43(1), ineffective for the purpose of the contempt proceeding.

51    However, the Registrar submits that the defect is cured by Mr Mensink’s submission to the jurisdiction. By email sent on 24 September 2020, counsel for Mr Mensink advised Reeves J, to whom the matter was docketed at that time, that:

My instructing solicitors hold instructions that the applicant Mr Mensink submits to the jurisdiction of this Honourable Court.

Further, we accept that service of the statement of charges provided to my instructor [sic] solicitor in accordance with the orders of Justice Dowsett dated 27 March 2017.

52    In Howard v National Bank of New Zealand Limited (2002) 121 FCR 366, the respondents’ New Zealand solicitors informed the applicant’s solicitor they had instructions to accept service on behalf of the respondents. The applicant did not obtain leave to serve out of jurisdiction under O 8 of the Federal Court Rules 1979 (Cth). Order 7, r 14 provided that service in accordance with an agreement with the respondent would be sufficient service. Justice Drummond held at [23] that if a respondent agreed in a formal or informal ad hoc way, service in accordance with that agreement would be effective to give the Court jurisdiction in the action over that respondent.

53    Justice Drummond observed at [5]:

It is open to parties to litigation to agree on a mode of service different from those provided for in the rules unless the rules themselves prohibit consensual service. See Allison at 116-117 and 118-119. Consensual service outside the rules of court regulating service has long been recognised in England; it was described in Sphere Drake Insurance plc v Gunes Sigorta [1988] 1 Lloyd’s Rep 139 at 141 as the third of the ‘‘three main ways in which service can be effected’’, the other two being personal service inside the jurisdiction and personal service outside the jurisdiction pursuant to leave of the Court under the English equivalent of O 8.

54    Justice Drummond also observed at [19]:

The entry of an appearance by a respondent outside the jurisdiction has long been regarded as such an act of voluntary submission to the jurisdiction of the local court in the action in which the appearance is entered. But submission by a foreign respondent to the jurisdiction of the local court can take many other forms. It has long been the law that a respondent outside the jurisdiction can so act to give the local court jurisdiction over it which it would not otherwise have by waiving objection to jurisdiction, for example, by taking a step in the proceeding inconsistent with maintaining that objection — see Rein v Stein (1892) 1 QB 753; 66 LT 469 — even if it has not entered an appearance — see Boyle v Sacker (1888) 39 Ch D 249. By such an act of voluntary submission, the foreign respondent does all that is regarded as necessary to authorise the local court to exercise its jurisdiction in the particular matter over that respondent…

55    In City of Swan v McGraw-Hill Companies Inc (2014) 223 FCR 295, Rares J held that the respondent had submitted to the jurisdiction. His Honour observed:

114    In Brealey v Board of Management of Royal Perth Hospital (1999) 21 WAR 79 at [38], Ipp J, with whom Malcolm CJ agreed, said:

In determining whether steps taken by a party in the course of proceedings amount to a submission to jurisdiction, the question to be considered is whether the steps were necessary or useful to any action taken by the party other than in objecting to the jurisdiction. A step that is not consistent with or relevant to the challenge to the jurisdiction, will usually be a submission to that jurisdiction. The court must consider the matter objectively and, where the steps relied on are the actions of a solicitor, they must be considered in the context of all the relevant circumstances: see Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90 at 97; Rein v Stein (1892) 66 LT 469 at 471; Williams & Glyn’s Bank Plc v Astro Dinamico Compania Naviera SA [1984] 1 Lloyd’s Rep 453; [1984] 1 WLR 438; Adams v Cape Industries Plc [1990] Ch 433 at 459.

(Emphasis added.)

115    And, in Astro Exito Navegacion SA v WT Hsu (The Messiniaki Tolmi) [1984] 1 Lloyd’s Rep 266 at 270, Oliver, Slade and Robert Goff LJJ applied the same principle to determine whether a person had voluntarily submitted to the jurisdiction of the Court. There, a defendant had applied to strike out part of the claim in a writ. Earlier that defendant had applied for a stay on the grounds that Taiwan was a more convenient forum. Both motions were subsequently heard together by Mustill J who dismissed them. Oliver, Slade and Robert Goff LJ held that a person voluntarily submitted to the jurisdiction if he, she or it voluntarily recognises, or has recognised, that the Court has jurisdiction to hear and determine the claim which is the subject matter of the proceedings, adding ([1984] 1 Lloyd’s Rep at 270):

In particular, he makes a voluntary submission to the jurisdiction if he takes a step in proceedings which in all the circumstances amounts to a recognition of the Court’s jurisdiction in respect of the claim which is the subject matter of those proceedings. The effect of a party’s submission to the jurisdiction is that he is precluded thereafter from objecting to the Court exercising its jurisdiction in respect of such claim. Whether any particular matter, for example an application to the Court, amounts to a voluntary submission to the jurisdiction must depend on the circumstances of the particular case.

(Emphasis added.)

116    Their Lordships held that the defendant had clearly submitted to the jurisdiction by applying to strike out part of the claim, saying ([1984] 1 Lloyd’s Rep at 271):

For if he had been successful in that application the Court would have decided that issue in his favour and against the respondents. The Court’s decision on the point would then have created an issue estoppel against the respondents, which the appellant could have invoked to prevent the respondents pursuing such a claim in the Courts of this country, and possibly also in Courts overseas. Plainly, therefore, by making his application for an order striking out par. 4, the appellant was voluntarily submitting to the jurisdiction of the Court. In these circumstances, it was in any event not open for the appellant thereafter to dispute the jurisdiction of the Court.

(Emphasis added.)

117    If a defendant seeks relief from the Court wider than relief setting aside service or associated with such relief, such as relief on the merits of a claim, ordinarily, he, she or it will have waived the objection to jurisdiction: Laurie v Carroll (1958) 98 CLR 310 at 335-336 per Dixon CJ, Williams and Webb JJ; National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176E-F, 177D-E, 182D-F per Holland J; Walker v Newmont Australia Ltd [2010] FCA 298 at [27] per Gordon J. In Re Dulles’ Settlement (No 2); Dulles v Vidler [1951] Ch 842 at 847, Evershed MR put the issue pithily as follows:

It is, of course, plain that where a question of jurisdiction arises a man cannot both have his cake and eat it. He cannot fight the issue on the merits, and at the same time preserve the right to say, if the worst comes to the worst, that the court has no jurisdiction to decide against him. And he cannot, consistently with that principle, take any step unequivocally referable to the issue on the merits.

(Emphasis added.)

118    I am of opinion that, here, S & P has tried to have its cake and eat it. It has attacked the merits of the originating application and statement of claim at a fundamental level in the course of its seeking to have service on it set aside. Were S & P to have succeeded on its merits-based attack in having the proceedings dismissed or the originating application set aside, an issue estoppel would have been created as explained in The Messiniaki Tolmi at 271.

56    In the present case, not only has Mr Mensink unequivocally and expressly submitted to the jurisdiction of the Court, but he has actively engaged in challenging the proceedings on issues broader than those merely concerning service. For example, he applied for leave to appear via video-link at the trial, applied for summary dismissal, and appealed against orders that the Registrar take over the contempt proceedings. Mr Mensink’s argument that he has not submitted to the jurisdiction cannot be accepted.

57    The effect of a party’s submission to the jurisdiction is that they are precluded thereafter from objecting to the Court exercising its jurisdiction in respect of the proceeding. Accordingly, Mr Mensink’s argument concerning the absence of jurisdiction stemming from the ineffectiveness of service must be rejected.

Whether the trial should not be permitted to proceed in Mr Mensink’s absence

58    Mr Mensink initially submitted that the Court lacks jurisdiction to hear and determine a charge of contempt in the absence of an alleged contemnor. He now accepts that the Court has a discretion to allow a trial to proceed in the person’s absence, but submits that the discretion must be exercised with great care, and only in rare and exceptional cases.

59    Mr Mensink submits that to proceed on the charges of contempt in his absence would contravene his fundamental right to a fair trial. He submits that his absence means that he cannot possibly facilitate a comprehensive defence, as he can neither elect to give evidence, nor comprehensively raise any justification or excuse.

60    The Registrar accepts that it is highly desirable for the alleged contemnor to be present at a trial. However, the Registrar points to a number of cases where the court’s discretion has been exercised to proceed in the absence of the alleged contemnor. In response, Mr Mensink contends that these cases are distinguishable.

61    The presence of the accused is regarded an essential principle of the criminal law for the trial of an indictable offence: Lipohar v The Queen (1999) 200 CLR 485 at 514; Ebatarinja v Deland (1998) 194 CLR 444 at 454. In R v Gee (2012) 113 SASR 372, Gray and Sulan JJ recognised that there are established exceptions to this principle and that a trial judge retains a general discretion to proceed with the trial in the absence of the defendant. Their Honours held at [62]:

[T]his discretion must be exercised with great care, and it is only in the rare and exceptional case that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented. The Court considered that in exercising its discretion, fairness to the defence is of prime importance, but fairness to the prosecution must also be taken into account.

62    In Ronowska v Kus (No 2) [2012] NSWSC 817, Pembroke J considered at [4] that the case involved allegations of deliberate, defiant and contumelious conduct intended to obstruct the course of justice, and was clearly in the nature of a criminal proceeding. His Honour observed at [52] that the general rule is a trial and sentence for an indictable offence must be conducted in the presence of the accused and recognised that that the discretion to proceed otherwise should be exercised sparingly. Justice Pembroke noted at [53]:

The most common jurisprudential basis for an exception to the rule has its foundation in the accused’s own conduct. In certain circumstances, the conduct of an accused will be treated as amounting to a voluntary waiver of his right to be present at trial and sentence. In such circumstances, the accused forfeits the right to be present.

63    His Honour indicated at [57] that the factors relevant to the exercise of the discretion include the nature and seriousness of the charge and the conduct and circumstances of the accused; the strength and nature of the Crown case; the defence insofar as it has been disclosed; the length of time over which the case has run and will run; the prejudice that the accused might suffer; the risk of a miscarriage of justice; the inconvenience to the victims and the witnesses; and the impact upon the administration of justice.

64    Justice Pembroke at [58]-[59] considered the conduct of the defendant to be analogous to the conduct of, “an accused who absconds on bail and chooses not to attend his own trial and sentence”. His Honour considered that the circumstances favouring proceeding with the trial included that the defendant was aware of the proceeding and had been given ample opportunity to respond to the charge; the evidence against the defendant was overwhelming and there was no apparent justification or defence available; the conduct was defiant in nature; the plaintiff would suffer hardship if the matter did not proceed; and there was no prejudice to the defendant other than such prejudice as was self-inflicted by his choice not to appear. His Honour also took into account, “the interests of justice in swiftly demonstrating the court’s reproach”.

65    Mr Mensink points out that a number of the factors considered significant in Ronowska v Kus (No 2) are absent in this case, including the overwhelming strength of the evidence; the absence of any apparent justification or defence; the defiant nature of the conduct; and the hardship to the plaintiff.

66    In Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 6) (2013) 223 FCR 426, Logan J referred to Ronowska v Kus (No 2) with approval. His Honour had held the alleged contemnor to be in contempt, but he failed to appear at the sentencing hearing. His Honour considered it was obvious the defendant had been in contact with his legal representatives (who withdrew at the date of the sentence), was aware of the hearing and had chosen not to attend. His Honour was satisfied the defendant had waived his right to be present and exercised the Court’s discretion to proceed with the sentencing of the contemnor in his absence.

67    In Bonacci, Kaye JA determined that the hearing should proceed in the absence of the alleged contemnor. His Honour acknowledged at [25] that it was “highly desirable” for the respondent be before the Court to answer the contempt. The considerations his Honour took into account at [59]-[65] included that the respondent understood the nature and gravamen of the proceeding; he had unambiguously indicated that he did not intend to participate in the proceeding; and there would be no prejudice apart from the prejudice arising from his own failure to attend the hearing. His Honour observed that there is a public interest in such cases being heard and disposed of without undue delay and in the vindication of the processes of the court.

68    Mr Mensink points out that in Bonacci a factor considered by his Honour at [63] was the apparent strength of the case, whereas that factor is said to be absent in this case.

69    In Zamir v Zamir [2022] FedCFamC1A 193; (2022) 65 Fam LR 612, the Full Court affirmed the decision to find the appellant guilty of contempt in his absence. The appellant had continued to participate in allied civil proceedings, but refused to participate in the contempt proceeding. After noting that it is a fundamental proposition of common law that a trial for an indictable offence should be conducted in the presence of the accused, the Court held:

[26]    The husband submitted the course which the primary judge should have instead adopted was to hear the wife’s evidence in support of the three counts of contempt, either dismissed or resolved to find a prima facie case established in respect of each, adjourned the part-heard hearing if a prima facie case was found in respect of any count, and then issued a warrant for the husband’s arrest. The corollary of the proposition is that the contempt application would be left in a permanent state of suspension unless and until the husband ever elected to return to Australia so the arrest warrant could be executed. We reject the submission.

[27]    Had this been a civil cause of action, the primary judge would not have been required to indefinitely delay the hearing merely because the husband declined to appear. Given the civil proceedings are still running in parallel, we do not accept the husband was denied procedural fairness in the contempt proceedings. Even if he had been, the error could not be cured by a re-hearing of the contempt application because the husband declines to return to the jurisdiction to re-contest it. It would be an unsatisfactory and incongruent outcome if, by the husband’s choice, he could remain abroad to purposefully avoid answering the contempt charges but still participate freely by electronic means to contest the allied civil financial cause between the parties under Pt VIII of the Act.

(Emphasis added, citations omitted.)

70    Mr Mensink submits that the facts in Zamir are distinguishable in that there was no justification or excuse for the contemptuous act of dealing with the restrained property contrary to a court order, and there was a further incongruence in that the husband was on the one hand avoiding answering the contempt charge by remaining abroad whilst simultaneously participating by electronic means in the allied financial cause against the wife.

71    In some cases, the Court has exercised its discretion to refuse to proceed in the alleged contemnor’s absence.

72    In The Registrar, Court of Appeal v Ritter (Court of Appeal, New South Wales, 21 August 1985, unreported), the Registrar had sought an order that the defendants be declared guilty of contempt of court in their absence. Ultimately the NSW Court of Appeal decided that the matter needed to be remitted for determination of jurisdiction, but each judge also considered whether the matter could proceed in the defendants’ absence.

73    President Kirby considered that the rules of the Court, which provided for orders to compel a person to attend the Court in certain circumstances, did not apply. His Honour concluded:

Just as in criminal matters a judge has a discretion if he is satisfied that the defendant has waived his right, to proceed with the trial, so in the quasi criminal matter of contempt, where the defendant waives the right to be present, that waiver and the defendant’s non-appearance will not prevent the trial proceeding.

74    Justice McHugh considered that the rules could compel the defendants’ presence, and that the defendants should be present because “[c]onducting a criminal proceeding in the absence of the accused is so alien to the common law tradition that it can only be permitted when necessity forces it on the Court”. Justice Priestley also considered that the rules could compel the defendants’ presence, and that the defendants should be compelled to attend. The Court was not required to consider whether the defendants’ presence was required in the event that they failed to attend notwithstanding compulsion under the rules.

75    In Attorney-General (NSW) v Hayden (1994) 34 NSWLR 638, Kirby P held at 639:

…[I]t seems appropriate now to oblige Mr Hayden at least to answer at the beginning of the proceedings to the charge which has been brought against him. Self-evidently that charge is serious. It is, therefore, important that Mr Hayden should have brought home to him the seriousness with which he should approach the proceedings. It is also important that the Court should prevent any belated claims arising that the contemnor was unaware of the hearing date.

76    The practice in New South Wales seems to be for an order to be made that the alleged contemnor attend before the Court and that an arrest warrant be issued if they fail to attend: see Prothonotary of Supreme Court of New South Wales v Jarvie [2016] NSWSC 1343 at [11].

77    Mr Mensink submits that the ultimate responsibility of the Court is to ensure a fair trial according to law within the adversarial system, with predominant importance given to fairness to the defendant. He submits there is a fundamental difficulty in finding waiver of a right to a fair trial when the assumption of that right ordinarily occurs at the point at which the trial commences, and the right is exercised to answer the allegations.

78    Mr Mensink submits that a distinguishing feature of this case is that the putative contemptuous conduct, namely his non-attendance at Court, occurred when Mr Mensink was absent from the jurisdiction. It is argued that Mr Mensink was never required to attend while he was in the jurisdiction and he did not leave the jurisdiction at a time when the prospect of the SPLs serving him with a summons was manifest. He submits his position is not comparable to a party fleeing after a proceeding has been threatened or commenced or after having been served with an originating process.

79    Mr Mensink submits that proceeding in his absence would be inconsistent with the adversarial system of justice and the accusatorial process of criminal justice, both of which necessarily entail a two-sided contest, in which a defendant is present and able to understand and defend the case against them. He argues that the process is inherently defective and unfair where a party was not in the jurisdiction when the process was commenced, when the putative contemptuous conduct occurred, and when the trial for charges of contempt commences.

80    Mr Mensink argues that it is not to the point that he is represented. He submits that representation is not curative of the deficiencies in the process and does not warrant the Court depriving Mr Mensink of a fair hearing.

81    I accept that the responsibility of the Court is to ensure a fair trial according to law and particular importance must be placed on fairness to the alleged contemnor. That must be so at least because of the serious consequences, including possible imprisonment, that may flow if the contempt is proven. It is clear that proceedings for contempt should ordinarily proceed in the presence of the alleged contemnor. However, there remains a discretion to proceed in the absence of the alleged contemnor. The discretion must be exercised with great care, and only in rare and exceptional cases.

82    The allegations of contempt are that Mr Mensink failed to comply with the summons for examination requiring him to attend before the Court on 22 February 2017, and with the order of the Court of 27 February 2017 requiring him to attend before the Court on 27 March 2017.

83    I am unable, at this stage, to make any assessment of the strength of the allegations of contempt. I regard the strength or weakness of the case as a neutral factor.

84    Mr Mensink left Australia on 6 June 2016 and has not returned since then. The Registrar has suggested, but has not squarely made the allegation, that Mr Mensink left the country to avoid examination in respect of his conduct as director of Queensland Nickel. I do not accept that the evidence presently before the Court establishes any such suggestion or allegation.

85    While Mr Mensink makes much of the fact that the charges of contempt relate to conduct while he was outside Australia, the relevance of that matter to the exercise of the discretion is not entirely clear. He does not suggest that conduct which occurred overseas cannot constitute a contempt: cf R v Slaveski [2017] VSC 526 at [60]. He has not adequately explained how the fact of his alleged conduct occurring overseas would affect the fairness of proceeding in his absence. Neither has he explained precisely why the fact that the proceeding for contempt was brought while he was overseas makes proceeding in his absence unfair.

86    Mr Mensink has, through his legal representatives, made it clear that he will not be attending the trial of the contempt proceeding. He has not provided any evidence explaining why he will not be attending the trial. In the absence of any explanation, the appropriate inference is that his absence is voluntary.

87    On 29 October 2020, Mr Mensink filed two interlocutory applications in the proceedings seeking, relevantly, orders that the respondent be granted leave to appear via video-link at the hearing of the application. At a case management hearing on 20 March 2023, the Court was informed that Mr Mensink would not be in attendance for the hearing. The Registrar sought orders dismissing the applications. Mr Mensink’s legal representatives did not oppose that order, but stated that it was a case of them “not pressing” their applications and they should be considered as “dismissed without any adjudication on the application of the merits”. Orders were then made dismissing the applications.

88    It has not been explained why Mr Mensink has not pressed an application for his attendance at the trial by video-link to ameliorate any prejudice he may face. It is now commonplace for lawyers and litigants in remote places to ask for a link so that they can view proceedings. I cannot think of any reason why Mr Mensink would not be allowed such a link if he requests one. Of course, I would have to consider any application for him to give evidence by video-link, but that is a different question that may arise on another day. At present, I am considering Mr Mensink’s submission that the proceeding should be stayed and the trial should not even commence because of the unfairness he will face from his absence.

89    In these circumstances, any prejudice Mr Mensink will face as a result of his absence from the trial is brought about by his own decision not to attend in person and his failure to pursue an application to attend by video-link.

90    Mr Mensink is obviously aware of the contempt proceeding and the allegations made against him. He has submitted to the jurisdiction. He is legally represented and has evidently been providing instructions for its conduct. It is incongruous that Mr Mensink is, on one hand, actively defending the proceedings through instructions to his legal representatives, but, on the other hand, unwilling to attend the trial in order to avoid the prejudice he asserts will result from his absence.

91    This is not a case like Ritter or Hayden where it was held that the trial should not proceed in the absence of the alleged contemnor because an order to attend court was likely to procure the person’s attendance. It is evident that the warrant for Mr Mensink’s arrest ordered by Dowsett J has been unable to be executed because of Mr Mensink’s absence from Australia. It appears that the only way Mr Mensink will attend the trial is voluntarily.

92    Mr Mensink has been away from Australia for seven years so far and it is uncertain if and when he will return. I adopt the reasoning in Zamir that it is undesirable for a contempt application to be left in a permanent state of suspension unless and until the alleged contemnor ever elects to return to Australia. I also adopt the view expressed in Bonacci that there is a public interest in contempt cases being heard and disposed of without undue delay.

93    In my opinion, Mr Mensink’s conduct amounts to a voluntary waiver of his right to be present at the trial. This is one of those exceptional cases where the Court’s discretion should be exercised to proceed with the trial of the charges of contempt in Mr Mensink’s absence.

Conclusion

94    I am not satisfied that Mr Mensink has established any grounds for an order staying or dismissing the contempt proceeding. His oral application for such relief must be dismissed.

95    Mr Mensink should pay the Registrar’s costs of the oral application.

96    I will list the matter for a case management hearing at 10.15 am on 31 January 2024 with a view to making any further directions required for the matter to proceed to trial.

Associate:    

Dated:    14 December 2023