Federal Court of Australia

Registrar of the Federal Court of Australia v Mensink (Contempt) [2026] FCA 1470

ORDERS

THE COURT NOTES THAT:

The respondent has been held to have committed contempt of the Court by failing to comply with the Amended Summons for Examination issued on 16 December 2016 pursuant to Order 2 of the Orders made by District Registrar Baldwin on 15 December 2016.

THE COURT ORDERS THAT:

1.    The applicant file and serve written submissions and any affidavits concerning the issues of penalty and any other relief by 4.30 pm (AEST) on 28 October 2026.

2.    The respondent file and serve any written submissions and any affidavits concerning the issues of penalty and any other relief by 4.30 pm (AEST) on 11 November 2026.

3.    The applicant file and serve any written submissions and any affidavits in reply by 4.30 pm (AEST) on 25 November 2026.

4.    The hearing concerning the issues of penalty and any other relief be listed for 10.15 am (AEST) on 4 December 2026 in Brisbane.

5.    The parties have liberty to apply in respect of these orders.

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    Mr Mensink was formerly a director of Queensland Nickel Pty Ltd (in liquidation) (Queensland Nickel). The contempt proceeding arises from Mr Mensink’s failure to comply with a summons requiring his attendance for examination in respect of the affairs of Queensland Nickel.

3    The Amended Statement of Charge contains the following charges:

Charge 1

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

Particulars:

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

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

Charge 2

Failing to comply with the amended summons for examination issued on 16 December 2016 pursuant to order 2 of the orders of District Registrar Baldwin of 15 December 2016.

Particulars:

a)    On 15 December 2016, Registrar Baldwin made orders to issue an amended summons for examination addressed to you, to adjourn the return date of the summons for examination issued by the Federal Court of Australia to you on 3 August 2016 and amended in accordance with the summons for examination attached and marked “A” to the order of Registrar Baldwin, to 9.30am on 22 February 2017 (for both the production of documents and for oral examination).

b)    On 16 December 2016, the amended summons for examination was issued to you.

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

(Deletions and underlining have been omitted.)

4    However, the Registrar filed an interlocutory application seeking dismissal of Charge 1. At the commencement of the hearing on 15 June 2026, I made an order dismissing that charge. The hearing then proceeded only in respect of Charge 2.

5    At the conclusion of the hearing on 16 June 2026, I formally made an order that the question of whether Mr Mensink is guilty of contempt of court be heard prior to and separately from any question relating to any penalty.

6    These reasons will proceed by:

(1)    describing the factual background and procedural history of the proceeding;

(2)    giving my reasons for dismissing Charge 1;

(3)    giving my reasons for allowing two affidavits of Mr Mensink to be admitted into evidence over his objection;

(4)    addressing Charge 2.

Factual background and procedural history

7    Mr Mensink was a director of Queensland Nickel for substantial parts of the period between 2012 and 2017. On 18 January 2016, Queensland Nickel was placed into voluntary administration pursuant to s 436A of the Corporations Act 2001 (Cth). At that time, Mr Mensink was the company’s sole director. The voluntary administrators identified that Queensland Nickel had become insolvent no later than 27 November 2015.

8    Queensland Nickel had no assets, but had liabilities of at least $226 million, including liabilities for employee entitlements. On 22 April 2016, the creditors resolved that Queensland Nickel be wound up. The voluntary administrators, John Park, Kelly-Anne Trenfield, Stefan Dopking and Quentin Olde, became the general purpose liquidators (GPLs) of Queensland Nickel.

9    Some of the employees’ entitlements were paid by the Commonwealth of Australia under the scheme known as the “Fair Entitlements Guarantee”. On 18 May 2016, upon an application by the Commonwealth in proceeding QUD283/2016, Dowsett J made orders appointing Stephen Parbery, Marcus Ayres and Michael Owen as special purpose liquidators (SPLs) to investigate certain dealings and transactions of Queensland Nickel under ss 511 and 472(1) of the Corporations Act.

10    The purposes of the SPLs’ appointment included conducting investigations and examinations under ss 596A and 596B of the Corporations Act; and commencing and conducting legal proceedings in relation to dealings or transactions between Queensland Nickel, its directors and officers and related entities, and potential claims for insolvent trading.

11    On 16 May 2016, the GPLs commenced proceeding QUD329/2016 in this Court, seeking the examination of Mr Mensink and others in relation to the examinable affairs of Queensland Nickel. On 1 June 2016, a summons for the examination of Mr Mensink was issued by the GPLs pursuant to s 596A of the Corporations Act with a return date of 14 June 2016. No Notice of acting – appointment of lawyer was filed on behalf of Mr Mensink in this proceeding.

12    In about June 2016, Mr Mensink departed Australia. Mr Mensink has not yet returned and may presently be living in Bulgaria.

13    On 28 July 2016, the SPLs commenced proceeding QUD580/2016 in this Court, seeking the examination of Mr Mensink and others in relation to the examinable affairs of Queensland Nickel and seeking production of documents.

14    On 3 August 2016, a summons for the examination of Mr Mensink was issued by the SPLs pursuant to s 596A of the Corporations Act with a return date of 19 August 2016. On 15 August 2016, that summons was adjourned to 30 August 2016. Personal service was not effected on Mr Mensink as he was overseas by that stage.

15    On 15 December 2016, District Registrar Baldwin made orders that an Amended Examination Summons issue and that the return date be adjourned to 9.30 am on 22 February 2017 and dispensing with the requirement for personal service and permitting substituted service of that summons upon Mr Mensink (the Baldwin Orders). The Amended Examination Summons was in fact issued on 16 December 2016.

16    The Amended Examination Summons was posted and emailed in accordance with the order for substituted service on 16 December 2016. In accordance with the orders, service was deemed to have occurred on 21 December 2016.

17    It is Mr Mensink’s failure to comply with the Amended Examination Summons by attending the Brisbane Registry of the Federal Court of Australia at 9.30 am on 22 February 2017 for examination that provides the foundation for Charge 2.

18    In proceeding QUD580/2016, a Notice of acting – appointment of lawyer was filed on 23 February 2017 appointing Sam Morris Iskander of Alexander Law to represent Mr Mensink in the proceeding.

19    On 27 February 2017, Dowsett J ordered that pursuant to s 596A of the Corporations Act, Mr Mensink attend before a Deputy Registrar of the Court on 27 March 2017, for the purpose of complying with the Baldwin Orders (the Dowsett Orders). The Dowsett Orders included a penal notice and were conditional upon the solicitors for the SPLs paying for Mr Mensink’s one-way economy class flight from an airport of his choosing in Europe to Brisbane, arriving before midday on 26 March 2017.

20    On 27 February 2017, the Supreme Court of Queensland (in proceeding BS10294/16) ordered that Queensland Nickel be wound up in insolvency. The GPLs and SPLs continued as court-appointed liquidators of Queensland Nickel.

21    By an interlocutory application filed on 3 March 2017, the lawyers for Mr Mensink applied for the orders made by Dowsett J on 27 February 2017 to be set aside. The application was heard and dismissed by his Honour on 8 March 2017.

22    Mr Mensink failed to appear before Acting District Registrar Belcher on 27 March 2017. That failure founded the basis for Charge 1.

23    On 27 March 2017, Dowsett J ordered that a warrant issue for the arrest of Mr Mensink to bring him to Court to attend for examination pursuant to the Baldwin Orders and the Dowsett Orders (Examination Warrant).

24    On 28 March 2017, the SPLs filed an interlocutory application pursuant to r 42.11 of the Federal Court Rules 2011 (Cth) seeking orders that Mr Mensink be punished for contempt of Court. Rule 42.12 requires an application alleging contempt to be accompanied by a statement of charge in the prescribed form. The Statement of Charge charged Mr Mensink with contempt in respect of his failure to comply with the Amended Examination Summons requiring him to attend for examination on 22 February 2017 and with the order requiring him to attend for examination on 27 March 2017. Justice Dowsett ordered that a warrant issue for Mr Mensink’s arrest and detention until he was brought before the Court to answer the contempt charge (Contempt Warrant). On 29 March 2017, the Examination Warrant and the Contempt Warrant were formally issued.

25    On 30 June 2017, the SPLs and Queensland Nickel commenced proceedings in the Supreme Court of Queensland (Proceeding BS6593/17) against Mr Mensink and others, seeking orders including compensation for alleged breaches of directors’ duties and insolvent trading.

26    On 28 June 2018, an appeal challenging the validity of the orders made by Dowsett J pursuant to which the warrants were issued was dismissed by the Full Court: Mensink v Parbery [2018] FCAFC 101; 264 FCR 265.

27    By August 2019, two of the SPLs (Messrs Ayres and Owen) had retired. On 3 August 2019, the remaining SPL (Mr Parbery), Mr Mensink and others entered into a Settlement Deed. The Settlement Deed was sanctioned by an order of Greenwood J made on 5 August 2019 in proceeding QUD473/2019. In August 2019, the SPL’s claims in proceeding BS6593/17 in the Supreme Court of Queensland were discontinued and Mullins J made orders to finalise those proceedings on 5 August 2019.

28    By letter dated 4 September 2019, the SPL confirmed that Mr Mensink was not required for examination under any examination summons the SPLs had caused to be issued under s 596A and stated that, in circumstances where the SPL’s claims in proceeding BS6593/17 had been discontinued, there was no further utility in the Amended Examination Summons that had been issued to Mr Mensink.

29    On 11 September 2019, Registrar Belcher ordered that the Examination Summons issued on 2 August 2016 and amended on 15 December 2016 be discharged, effective from the date of the order.

30    On 8 June 2020, Mr Mensink filed an interlocutory application seeking orders, pursuant to r 39.05 of the Federal Court Rules, that the Dowsett Orders be set aside and that the Examination Warrant and the Contempt Warrant be discharged.

31    On 23 July 2020, a case management hearing was held before Reeves J. His Honour indicated that he would not deal with any discharge of the warrants until Mr Mensink’s approach to the underlying contempt proceeding was made clear. His Honour was informed of the settlement between the SPL and Mr Mensink. The matter was adjourned so that the positions of Mr Mensink and the SPL in relation to the contempt proceeding could be ascertained.

32    On 5 August 2020, at the resumed case management hearing, the legal representatives for the SPL informed Reeves J that as the SPL had retired, and was, in any event, a party to an agreement releasing all claims, the SPL did not intend to take any further steps in the contempt proceeding. Justice Reeves then ordered on 5 August 2020 that:

1.    The Registrar of the Federal Court of Australia take over the prosecution of the statement of charge of contempt dated 28 March 2017.

33    On 29 October 2020, the Registrar amended the Statement of Charge.

34    On 29 April 2021, Mr Mensink filed an interlocutory application seeking an order enjoining the Registrar from continuing the contempt proceeding. On 10 June 2021, Mr Mensink filed an amended interlocutory application seeking summary dismissal of the Amended Statement of Charge.

35    On 24 September 2021, I dismissed Mr Mensink’s application for summary judgment: Registrar of the Federal Court of Australia v Mensink [2021] FCA 1152. On 9 June 2022, Mr Mensink’s appeal from my judgment was dismissed: Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102; 294 FCR 101. An application for special leave to appeal was dismissed by the High Court: Mensink v Registrar of the Federal Court of Australia [2022] HCASL 184.

36    The contempt proceeding was then listed for hearing commencing on 27 April 2023, but on the first day, Mr Mensink made an oral application for orders permanently staying or dismissing the proceeding on the basis that the order for substituted service of the Amended Statement of Charge was ineffective and that the trial proceeding in his absence would contravene his right to a fair trial. On 14 December 2023, I dismissed that application: Registrar of the Federal Court of Australia v Mensink (Stay Application) [2023] FCA 1581. On 24 September 2024, Mr Mensink’s appeal was dismissed: Mensink v Registrar of the Federal Court of Australia [2024] FCAFC 124; 304 FCR 471. On 6 February 2025, the High Court refused an application for special leave to appeal from the Full Court’s judgment: Mensink v Registrar of the Federal Court of Australia [2025] HCADisp 10.

37    The matter was then listed for a three-day hearing commencing on 29 October 2025. However, on 19 August 2025, Mr Mensink filed a Notice of Acting – Change of Lawyer and, on 29 August 2025, an interlocutory application was filed seeking an adjournment of the hearing. At an interlocutory hearing on 9 September 2025, Mr Mensink submitted he would not be ready for the hearing because he had not been able to access his former lawyer’s files as receivers had been appointed to the firm. The Registrar neither consented to nor opposed the application. I granted the adjournment.

38    The final hearing eventually proceeded on 15 and 16 June 2026.

The application to dismiss Charge 1

39    On 17 April 2026, the Registrar filed an interlocutory application seeking the dismissal of Charge 1 of the Amended Statement of Charge filed on 29 October 2020. It should be noted that the Registrar’s application was in respect of Charge 1 only and not Charge 2.

40    Charge 1 alleges that Mr Mensink committed a contempt of court by failing to comply with Order 2 of the Dowsett Orders of 27 February 2017. The Dowsett Orders provided, relevantly:

Conditional upon:

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

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

THE COURT ORDERS THAT:

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

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

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

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

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

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

….

41    A charge of contempt must be established beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534. In the case of a civil contempt, the Registrar must prove, amongst other things, that the alleged contemnor had knowledge of the terms of the order: Re Group Pty Ltd v Kazal (No 4) [2017] FCA 1084 (Kazal) at [73].

42    The Registrar submits that it is for the Court to determine whether there remain reasonable prospects of proving the charges to the required standard: see Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2017] FCA 899 (Bob Jane) at [13]. However, the Registrar accepted that there is no longer any reasonable prospect of proving Charge 1 beyond reasonable doubt. The Registrar’s case that Mr Mensink knew of the Dowsett Orders depended upon inferences drawn from the conduct of Mr Iskander of Alexander Law, the solicitors on the record for Mr Mensink at the relevant times. The Registrar submitted that such inferences can no longer be safely drawn.

43    A letter from Mr Mensink’s current solicitor to the Registrar’s solicitors dated 13 March 2026 asserts that:

(a)    Between 2017 and 2025, Mr Iskander defrauded Mineralogy Pty Ltd (and other related entities) of amounts in excess of $31 million while retained as their solicitor. Proceedings were commenced against him in the Supreme Court of Queensland, and summary judgement has been obtained for approximately $29 million.

(b)    Mr Iskander has surrendered his practising certificate, and the Queensland Law Society has appointed receivers to his legal practice.

(c)    Mr Iskander is currently in Egypt. A warrant was expected to issue for his arrest in February 2026. At a hearing in January 2026, Mr Iskander stated that he did not have the financial or mental capacity to return to Australia.

(d)    Mr Iskander was examined by the SPLs in 2018. The effect of Mr Iskander’s evidence was as follows:

(i)    As at the date of the examination on 19 July 2018, Mr Iskander had never spoken to Mr Mensink or received communication from him directly.

(ii)    All instructions were received through intermediaries, namely Clive Palmer and George Sokolov. Mr Sokolov provided written authorities to act on Mr Mensink’s behalf. Mr Palmer was the person giving instructions on Mr Mensink’s behalf.

(iii)    Mr Iskander did not draft the affidavit of Mr Mensink dated 31 January 2017. It was handed to him by Mr Palmer, and filed on instructions from Mr Palmer. He did not have a written authority from Mr Mensink. Similarly, the Notice of Acting filed on 24 February 2017 was filed on Mr Palmer’s confirmation, without any direct communication with Mr Mensink.

44    Mr Mensink contended that no reliance can be placed on any evidence filed or sworn by Mr Iskander, and that no assumption could be made that Mr Iskander was in fact acting for Mr Mensink between 2017 and 2025.

45    There is no direct evidence that Mr Mensink actually knew of the Dowsett Orders. Mr Mensink did not attend any of the hearings before Dowsett J, whether in person or by video-link. The Registrar’s case concerning knowledge of the Dowsett Orders depended on inferences drawn from the surrounding circumstances, namely:

(a)    Mr Mensink’s awareness of the requirement to attend on 22 February 2017, and the likelihood that further orders would follow non-attendance;

(b)    the retention of Mr Iskander as the solicitor on the record only a few days after he failed to attend for examination as required by the Baldwin Orders;

(c)    the attendance of Mr Iskander and counsel before Dowsett J on 23 and 24 February 2017, at which time Dowsett J declined to order that a warrant for Mr Mensink’s arrest issue at that time;

(d)    the filing of an interlocutory application by Mr Iskander on behalf of Mr Mensink on 6 March 2017 to set aside the Dowsett Orders; and

(e)    Mr Iskander’s appearance with counsel on 8 March 2017 in respect of that interlocutory application.

46    The inferential chain relied on by the Registrar was that Mr Iskander, as the solicitor acting for Mr Mensink, who was present when the orders were announced, communicated them to Mr Mensink, and that Mr Mensink then instructed him to make an interlocutory application to set them aside. Mr Iskander’s evidence at the examination that he had never communicated directly with Mr Mensink and was acting on instructions from intermediaries breaks that chain. The Registrar therefore accepts that an inference that Mr Mensink had knowledge of the Dowsett Orders cannot be safely drawn.

47    In Bob Jane, the Court vacated orders directing the Registrar to bring contempt proceedings after the Registrar applied to discontinue the proceeding on the basis that there was no reasonable prospect of proving an element of the charge beyond reasonable doubt. In that case, the Court had directed the Registrar to commence proceedings rather than to take over an existing proceeding, but the underlying principle is the same. The Court should not require the continued prosecution of a charge of contempt where there is no reasonable prospect of establishing a necessary element.

48    I accepted that the Registrar had no reasonable prospect of proving Charge 1 beyond reasonable doubt. I therefore ordered that Charge 1 be dismissed.

Objections to evidence

49    The Registrar sought to rely upon two affidavits that are purportedly the affidavits of Mr Mensink. The first was both sworn and affirmed on 31 January 2017 (the 2017 Affidavit). The second was sworn on 25 December 2022 (the 2022 Affidavit).

50    Mr Mensink objected to the admission of the affidavits into evidence. At the commencement of the hearing, I heard argument upon the objections and ruled them to be admissible.

51    The Registrar alleges that the affidavits contain admissions by Mr Mensink that he was aware that he was required to attend at the Federal Court of Australia on 22 February 2017 for examination and that he deliberately refrained from travelling back to Australia to attend for that examination.

52    The 2017 Affidavit was originally filed by Alexander Law in proceeding QUD329/2016 and was also filed in the present proceeding as an annexure to an affidavit of Mr Iskander sworn on 20 February 2017. The 2017 Affidavit purports to explain why it would not be reasonable for Mr Mensink to be required to attend for examination on 22 February 2017.

53    The Registrar proposed to adduce the 2017 Affidavit as an annexure to the affidavit of a solicitor, Daniel Welsh, dated 25 May 2026 (interestingly, like the 2017 Affidavit itself, Mr Welsh’s affidavit purports to have been both sworn and affirmed). Mr Welsh deposes that he sent a request to the Federal Court of Australia Registry for access to the 2017 Affidavit and, on 27 March 2026, he received an email from the Registry providing a copy of that affidavit.

54    The footer at the first page of the 2017 Affidavit states that the document was prepared by Mr Iskander from Alexander Law. The affidavit commences with the words, “I Clive Theodore Mensink…say on oath”. However, the next paragraph reads, “I CLIVE THEODORE MENSINK, retired, solemnly and sincerely affirms and declares”. The last page of the body of the affidavit contains a signature above the words “Signature of deponent”. A signature that looks the same appears on each preceding page.

55    The jurat records that the 2017 Affidavit was, “Sworn/Affirmed by the deponent at Boston, MA on 1/31/17”. A signature appears above the words, “Signature of witness”. Beside the witness’s signature is a stamp which reads, “Brisilda Hysenaj Notary Public Commonwealth of Massachusetts”. The stamp also contains a seal that purports to be the seal of the Commonwealth of Massachusetts.

56    The Registrar also proposed to tender the 2022 Affidavit. That affidavit was filed in proceeding QUD580/2016 on 10 January 2023 by Alexander Law on behalf of Mr Mensink. Mr Mensink also objected to the tender of that affidavit.

57    The 2022 Affidavit purports to explain why Mr Mensink did not attend at the Federal Court of Australia for examination on 22 February 2017. The affidavit reveals the deponent’s understanding that they were required to attend the Federal Court of Australia on 22 February 2017 for examination.

58    The footer at the first page of the 2022 Affidavit states that the document was filed by Alexander Law. The affidavit commences with the words, “I Clive Theodore Mensink…say on oath”. The last page of the body of the affidavit contains a signature above the words, “Signature of deponent”. The jurat records that the affidavit was “Sworn by the deponent” at Rome in Italy on 25 December 2022. A signature appears above the word “Solicitor” and the name “A. Palmer” is printed underneath the signature.

59    Mr Mensink objected to the admission of the 2017 and 2022 Affidavits on two grounds. The first was that the Registrar’s proposed use of the affidavits was inconsistent with her concession that she did not rely upon “any act done by, or evidence given by” Mr Iskander as “probative of any fact in issue”. The second was that the Registrar had not established the “authenticity” of the affidavits, in the sense of having been in fact made by Mr Mensink.

60    As to the first ground, the somewhat circuitous method adopted by the Registrar of adducing the 2017 Affidavit through the affidavit of Mr Welsh was adopted because of the Registrar’s concession that:

39.    In the circumstances, the Registrar considers it appropriate to disavow reliance at trial on any act done by, or evidence given by, Mr Iskander in these proceedings as probative of any fact in issue.

61    Mr Mensink submitted that the Registrar’s proposed reliance on the 2017 and 2022 Affidavits is inconsistent with her disavowal of reliance on any act done by, or evidence given by, Mr Iskander.

62    The Registrar’s concession was directly followed by an express indication that she maintained her reliance on the 2017 and 2022 Affidavits. Her written submissions state:

40.    The Registrar continues to rely on the 2017 Mensink Affidavit and the 2022 Mensink Affidavit, which were sworn by Mr Mensink personally and constitute his own evidence.

63    The Registrar submitted that she proposed to use the 2017 and 2022 Affidavits as evidence of admissions made by Mr Mensink. That use does not rely upon any act of Mr Iskander in purporting to prepare or file the 2017 Affidavit on behalf of Mr Mensink. What is relied upon was Mr Mensink’s own representations in the affidavit.

64    I accepted that the Registrar’s proposed use of the affidavit was not inconsistent with her disavowal of reliance on Mr Iskander’s conduct.

65    Mr Mensink’s second ground of objection to the admission of the 2017 and 2022 Affidavits was that the Registrar had not established the authenticity of the affidavits.

66    The Registrar argued that the 2017 and 2022 Affidavits are admissible under s 81 of the Evidence Act 1995 (Cth) because they contain admissions made by Mr Mensink. The Registrar submitted that the affidavits demonstrate that Mr Mensink had knowledge of the terms of the Amended Examination Summons.

67    Mr Mensink contended that the affidavits are not admissible as evidence of admissions in the absence of proof on the balance of probabilities that the affidavits were in fact made by Mr Mensink, relying on National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 (Rusu) at [17]-[19]. In that case, Bryson J held at [17] that before a document is admitted, it is necessary that there should be an evidentiary basis for finding that it is authentic, namely that it is what it purports to be. His Honour considered that documents are not ordinarily taken to prove themselves or be accepted as what they purport to be. His Honour also held at [19] that a question of authenticity is not a question as to the relevance of documents within s 58(1), which treats authenticity as part of the material on which relevance may be determined.

68    In response, the Registrar submitted that authenticity is not a free-standing criterion of admissibility under the Evidence Act, relying on Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448 (Air New Zealand).

69    In that case, Perram J set out a number of “basic propositions” at [92]. These propositions (paraphrased) include the following. There is no provision of the Evidence Act which requires that only authentic documents be admitted into evidence. If the document is relevant, it is admissible (s 56). The question for the purpose of determining relevance is whether the document, “if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue” (s 55), including any issue as to the document’s authenticity. When considering the admissibility of a document, the Court may examine the document to see what may be reasonably inferred from it (s 58(1)), but does not make any finding as to whether the document is authentic. If there is a reasonable inference that the document will rationally affect the probability of a finding of fact, then the document may be admitted and a determination is made at the end of the trial as to whether the document is authentic and whether the fact is proved. The Court may, however, determine that no reasonable inference that the document is authentic is open and conclude that it is therefore irrelevant and inadmissible. His Honour accordingly declined to adopt the analysis in Rusu.

70    Mr Mensink submitted that I should prefer the analysis in Rusu to that in Air New Zealand. However, in Federal Commissioner of Taxation v Cassaniti [2018] FCAFC 212; 266 FCR 385 at 402-404 [64]-[65], Steward J (Greenwood and Logan JJ agreeing) set out [92] of Air New Zealand in full and expressly agreed with Perram J’s analysis. I am, of course, required to apply the ruling of the Full Court.

71    Accordingly, the issue of whether the 2017 and 2022 Affidavits are admissible depends on whether a reasonable inference is available that the affidavits are relevant. Their relevance depends upon whether they contain admissions made by Mr Mensink that would rationally affect the probability of a fact in issue. For the purposes of the contempt proceeding, it is necessary to determine whether the affidavits would affect the probability that Mr Mensink had knowledge of the terms of the order prior to 22 February 2017. That makes it necessary to consider whether a reasonable inference is available that the affidavits were in fact made by Mr Mensink and whether they contain statements adverse to Mr Mensink’s interest in the outcome of the proceeding.

72    I propose to work through each step of the Registrar’s argument and, in doing so, to address the bases of Mr Mensink’s objections.

73    Section 59(1) provides for the exclusion of hearsay evidence. However, s 81(1) provides that the hearsay rule does not apply to evidence of an admission.

74    Under Part 1 of the Dictionary for the Evidence Act, an “admission” is defined as, “a previous representation that is…made by a person who is…a party to a proceeding…and adverse to the person’s interest in the outcome of the proceeding”. A “previous representation” is defined as, “a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced”. The 2017 and 2022 Affidavits contain “previous representations” and it is not in dispute that some of those representations are adverse to Mr Mensink’s interests within s 81(1). It is in dispute, however, that the representations were made by Mr Mensink.

75    Section 88 of the Evidence Act provides that:

For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.

76    By clause 6(b) of Part 2 of the Dictionary, a representation in a document is taken to have been made by a person if, relevantly, “the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document”. The issue is then whether it is reasonably open to find that Mr Mensink signed the 2017 and 2022 Affidavits.

77    Section 142(1) of the Evidence Act requires that, except as otherwise provided, the Court is to find that the facts necessary for deciding whether evidence should be admitted or not admitted or any other question arising under the Evidence Act have been proved if satisfied that they have been proved on the balance of probabilities. Section 142(2) requires the importance of the evidence and the gravity of the matters alleged to be taken into account. Mr Mensink submits that as proceedings for contempt are quasi-criminal or penal in nature, the utmost strictness in proof is demanded, citing Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527 at [307]. While that submission can be accepted, the standard remains the balance of probabilities. In addition, under s 88 of the Evidence Act, the balance of probabilities standard does not apply to a finding as to whether a particular person made an admission. Satisfaction of the balance of probabilities standard is also affected by the presumptions arising under ss 148 and 150(1), as will be discussed.

78    The 2017 Affidavit contains a signature that purports to be the signature of “the deponent”, and the deponent is represented by the affidavit to be Mr Mensink.

79    The jurat for the 2017 Affidavit records that the affidavit was “Sworn/Affirmed” at Boston, Massachusetts before a Notary Public of the Commonwealth of Massachusetts. Under s 148 of the Evidence Act, it is presumed, unless the contrary is proved, that a document was attested or verified by, or signed or acknowledged before, a notary public if: (a) an Australian law authorises or permits it to be attested, verified, signed or acknowledged by a notary public; and (b) it purports to have been so attested, verified, signed or acknowledged. Section 149 provides that it is not necessary to adduce the evidence of an attesting witness to a document (not being a testamentary document) to prove that the document was signed or attested as it purports to have been signed or attested.

80    The 2017 Affidavit is stamped with what purports to be the seal of the Commonwealth of Massachusetts. The Registrar relied on s 150(1)(d) of the Evidence Act, which provides that if the imprint of a seal appears on a document and purports to be the seal of a “foreign country”, it is presumed, unless the contrary is proved, to be the imprint of the seal of that country. Part 1 of the Dictionary provides that a “seal” includes a “stamp”. The expression “foreign country” is defined in the Acts Interpretation Act 1901 (Cth) to mean, “any country (whether or not an independent sovereign state) outside Australia and the external Territories”. For the purposes of s 144 of the Evidence Act, it is not reasonably open to question and is common knowledge generally that Massachusetts is one of the 50 States of the United States of America, but is not a country. The seal on the 2017 Affidavit does not purport to be the seal of a foreign country. Therefore, s 150(1)(d) does not apply.

81    The Registrar relied, alternatively, on s 150(1)(e) of the Evidence Act, which provides that if the imprint of a seal appears on a document and purports to be, relevantly, the, “seal of a body…established by a law of…a foreign country”, it is presumed, unless the contrary is proved, to be the imprint of that seal. It is not reasonably open to question and is common knowledge generally that Massachusetts is a body established by a law of a foreign country (although by precisely what law is not a matter of common knowledge). Mr Mensink did not make any submission to the contrary.

82    The presumption under s 150(1)(e) of the Evidence Act operates unless the contrary is proved on the balance of probabilities: North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710 at [60].

83    Mr Mensink submitted that the stamp identifying the witness as a “Notary Public, Commonwealth of Massachusetts” does not establish qualification to administer affirmations for Australian affidavits. However, s 45(2)(d) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) expressly authorises affidavits for use in this Court to be sworn or affirmed before a notary public outside the Commonwealth. The stamp on the 2017 Affidavit identifies the witness as such a notary. Mr Mensink has not identified any provision of Massachusetts law to which the notary’s act is alleged not to have conformed and has adduced no evidence to displace the presumption arising under s 148 of the Evidence Act.

84    Mr Mensink submitted that the 2017 Affidavit is internally inconsistent as between oath and affirmation. He submits that the failure of the affidavit to indicate whether it was affirmed or sworn undermines its reliability and therefore renders the documents inadmissible. He submits that this is not a technical defect, but one that goes to the validity of the affidavit at law. He cites Director of Public Prosecutions v Marijancevic; Director of Public Prosecutions v Preece (2011) 33 VR 440 at [57] (an affidavit that had neither been sworn nor affirmed); Testart v Testart [2025] FedCFamC2G 572 at [60] (a jurat that did not indicate whether the affidavit was sworn or affirmed was treated as a substantive irregularity); Yimiao Australia Pty Ltd v Star Mining Pty Ltd [2022] VSC 701 (affidavits which were both sworn and affirmed were irregular and required to be remade).

85    However, the Registrar does not rely on the 2017 Affidavit as testimony under s 47(1) of the FCA Act, but as a document containing admissions. Therefore, the formal requirements that govern the testimonial use of affidavits are not engaged: Hua Wang Bank Berhad v Federal Commissioner of Taxation (No 15) (2013) 217 FCR 26 at [14]. In any event, the irregularity is a curable defect. Rule 29.06 of the Federal Court Rules provides that an affidavit may be accepted for filing despite an irregularity in form: see Cristovao v Registrar Caporale [2012] FCA 1329 at [47]-[48]. The cases relied on by Mr Mensink do not establish that a document containing an admission is by reason of irregularity of the jurat, inadmissible under s 81 of the Evidence Act.

86    Mr Mensink submitted that the 2017 Affidavit was, “allegedly sworn in Massachusetts in circumstances of which there is no contemporaneous record”. However, the jurat records that the affidavit was “Sworn/Affirmed” by the deponent before the Notary Public on 31 January 2017 at Boston and bears the Notary’s seal and signature. In Re Trade Mark of Ryan Lewis & Co Pty Ltd; Ex parte Autotone Co (1918) 24 CLR 460 at 462, Gavan Duffy J allowed the filing of an affidavit sworn before a foreign notary on the basis that such an affidavit may be received in Australian courts without further authentication. There is no requirement for a further contemporaneous record beyond the jurat itself.

87    In his written submissions, Mr Mensink submitted that the presumptions under ss 148 and 150(1) are displaced for reasons that it is unclear who drafted the purported 2017 Affidavit; that Mr Iskander has been found by the Supreme Court of Queensland to have engaged in an egregious example of fraud within the legal profession in Queensland; that Mr Iskander never spoke directly to Mr Mensink at any relevant time and received all instructions through Mr Palmer and Mr Sokolov; that the form of the 2017 Affidavit is against its authenticity as it is poorly drafted; the chain of custody of the document is unclear; that the affidavit contains multiple chronological inconsistencies and features which tend to indicate it being made by some other unknown person purportedly on behalf of Mr Mensink.

88    In his oral submissions, Mr Mensink accepted that the quality of the drafting only goes to the weight to be given to the affidavits if they were admitted rather than their admissibility. In respect of Mr Iskander’s involvement, Mr Mensink observed that Mr Iskander was found by the Supreme Court of Queensland to have fraudulently altered over 800 barristers’ invoices to increase the amounts charged and to have submitted the altered accounts to Mineralogy Pty Ltd and pocketed the difference. Mr Mensink submitted that on its face the 2017 Affidavit was prepared by Mr Iskander, but Mr Iskander’s evidence was that he had no direct contact with Mr Mensink. It is not known who prepared the affidavit or how it came into Mr Iskander’s possession. Mr Iskander had no authority to act. Mr Mensink submitted that in these circumstances, the Court could not have any confidence about whose signature might be on the affidavit. Mr Mensink submitted that even if the s 88 threshold is to be applied, it is not reasonably open to find that the relevant signature in the 2017 Affidavit is Mr Mensink’s signature.

89    I did not accept that the matters relied on by Mr Mensink, either individually or collectively, proved that the 2017 Affidavit was not signed before a Notary Public (s 148) or that the imprint of the seal is not an imprint of the seal of the Commonwealth of Massachusetts (s 150(1)(e)).

90    Mr Mensink also relies on the same matters to submit that the 2017 Affidavit is not a document in which admissions are made for the purposes of s 81. The question arising under s 88 is whether it is reasonably open to find that Mr Mensink made the admissions contained in the 2017 Affidavit.

91    The 2017 Affidavit indicates that the deponent was Mr Mensink. It purports to have been “Sworn/Affirmed” by the deponent. It bears a signature that purports to be Mr Mensink’s signature. A Notary Public witnessed the signing of the affidavit by the deponent. The 2017 Affidavit indicates that the deponent understood they were required to attend the Federal Court of Australia on 22 February 2017 for a public examination by the SPLs. The content of the affidavit sets out matters that were within the knowledge of Mr Mensink, for example, that he was a director of Queensland Nickel for various periods ending finally on 8 February 2017 and that on 18 January 2016, he resolved to place Queensland Nickel into administration. It contains information about Mr Mensink’s personal circumstances, feelings and emotions. Notwithstanding the matters relied on by Mr Mensink, it is reasonably open to find that Mr Mensink made the admissions contained in the 2017 Affidavit. In these circumstances, for the purposes of admissibility, s 88 requires a finding that Mr Mensink made the admissions contained in the 2017 Affidavit.

92    Mr Mensink’s written submissions did not separately address the 2022 Affidavit and his oral submissions tended to focus on the 2017 Affidavit. I proceeded on the basis that his submissions concerning the 2017 Affidavit are intended to also substantially cover the 2022 Affidavit.

93    The 2022 Affidavit was filed directly in the present proceeding by Alexander Law. Its signing was apparently witnessed by “A. Palmer”, who is described as a “Solicitor”. The Registrar relied on the 2022 Affidavit as being signed before an Australian lawyer for the purposes of s 148 of the Evidence Act. While the document indicates that “A. Palmer” is a lawyer, there is no evidence that they are an Australian lawyer. However, Mr Mensink did not make any submission that the 2022 Affidavit should be rejected on that basis.

94    In any event, even if s 148 does not apply to the 2022 Affidavit, it is reasonably open to find, for the purposes of s 88, that Mr Mensink made the admissions in the 2022 Affidavit. The 2022 Affidavit indicates that the deponent was Mr Mensink. It purports to have been sworn by the deponent. It bears a signature that purports to be Mr Mensink’s signature. The content of the affidavit sets out matters that were within the knowledge of Mr Mensink and demonstrated by the material, for example, that he was a director of Queensland Nickel for various periods ending on 8 February 2017. It contains information that purports to be about Mr Mensink’s personal circumstances, feelings and emotions. The 2022 Affidavit indicates that the deponent understood they were required to attend the Federal Court of Australia on 22 February 2017 for a public examination. Notwithstanding the matters relied on by Mr Mensink, it was reasonably open to find that Mr Mensink made the admissions contained in the 2022 Affidavit.

95    Finally, whether the 2017 and 2022 Affidavits were admissible depended on whether the affidavits are relevant in the proceeding. The affidavits contain admissions that would rationally affect the probability of a fact in issue, namely whether Mr Mensink had knowledge of the terms of the Amended Examination Summons. They are therefore relevant.

96    For these reasons, I was satisfied that the 2017 and 2022 Affidavits were admissible.

97    Mr Mensink also applied for an order pursuant to s 169(1) of the Evidence Act that the 2017 and 2022 Affidavits not be admitted into evidence unless the Registrar produced the originals of those affidavits and called Mr Mensink, Mr Iskander and Ms Hysenaj (the Notary Public who witnessed the 2017 Affidavit) for cross-examination.

98    Section 167 provides that a party may make a reasonable request to another party for the purpose of determining a question that relates to, relevantly, a previous representation or the authenticity or admissibility of a document.

99    Section 168(1) provides that if a party has given another party written notice of its intention to adduce evidence of a previous representation, the other party may only make a request relating to the representation within 21 days after the notice was given. However, under s 168(2), the Court may give leave to make a request relating to the representation after the end of the 21-day period if satisfied that there is good reason to do so.

100    Section 169 provides, relevantly:

169    Failure or refusal to comply with requests

(1)    If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders:

(a)    an order directing the party to comply with the request;

(b)    an order that the party produce a specified document or thing, or call as a witness a specified person, as mentioned in section 166;

(c)    an order that the evidence in relation to which the request was made is not to be admitted in evidence;

(d)    such order with respect to adjournment or costs as is just.

…

(4)    Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if:

(a)    the document or thing to be produced is not available to the party; or

(b)    the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced; or

(c)    the person to be called as a witness is not available.

(5)    Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account:

(a)    the importance in the proceeding of the evidence in relation to which the request was made; and

(b)    whether there is likely to be a dispute about the matter to which the evidence relates; and

(c)    whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved; and

(d)    whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and

(e)    if the request relates to evidence of a previous representation—whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based; and

(f)    in the case of a request referred to in paragraph (g) of the definition of request in section 166—whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained; and

(g)    whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and

(h)    the nature of the proceeding.

Note:    Clause 5 of Part 2 of the Dictionary is about the availability of documents and things, and clause 4 of Part 2 of the Dictionary is about the availability of persons.

101    Clause 4 of Part 2 of the Dictionary to the Evidence Act provides:

Part 2—Other Expressions

4    Unavailability of persons

(1)    For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

…

(f)    all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or secure his or her attendance, but without success; or

(g)    all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(2)    In all other cases the person is taken to be available to give evidence about the fact.

102    Clause 5 of Part 2 of the Dictionary provides:

5    Unavailability of documents and things

For the purposes of this Act, a document or thing is taken not to be available to a party if and only if:

…

(c)    it would be impractical to produce the document or thing during the course of the proceeding; or

…

(e)    it is not in the possession or under the control of the party and:

(i)    it cannot be obtained by any judicial procedure of the court; or

(ii)    it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or

(iii)    it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding.

103    On 17 April 2026, the Registrar filed an interlocutory application, seeking, relevantly, an order that the Registrar have leave to file and serve an affidavit exhibiting the 2017 Affidavit. The 2022 Affidavit was filed, ostensibly on behalf of Mr Mensink, on 10 January 2023.

104    Mr Mensink asserted that it was not until 25 May 2026 when the Registrar filed her submissions in reply concerning the interlocutory application for dismissal for Charge 1 that his current lawyers became aware that the Registrar intended to rely upon the 2017 and 2022 Affidavits as evidence of admissions rather than as Mr Mensink’s testimony. They submitted that if they had known that the affidavits were relied on as evidence of admissions only, they would have objected.

105    Mr Mensink then made a request on Friday, 12 June 2026 for the Registrar under ss 166 and 167 of the Evidence Act to produce the originals of the 2017 and 2022 Affidavits and to call Mr Mensink, Mr Iskander and Ms Hysenaj to give evidence. The hearing was listed to commence on Monday, 15 June 2026.

106    An affidavit of Daniel Welsh affirmed on 15 June 2026 annexes the Registrar’s response emailed on 12 June 2026 declining each request. The Registrar asserted that the requests were outside the time limit in s 168(1). She asserted that Mr Mensink had been expressly advised in writing that she relied on the representations in each affidavit as admissions under s 81 of the Evidence Act. As to the 2022 Affidavit, such advice was provided in her Objections Table provided on 5 May 2026 (which stated that the Registrar would rely on the affidavits as including admissions). As to the 2017 Affidavit, such advice was provided in the Registrar’s response to Mr Mensink’s Objections to Evidence served on 18 May 2026 (which stated that the 2017 Affidavit was relied on as containing admissions). The facts asserted by the Registrar in the response have not been disputed.

107    The Registrar’s response also asserted that, in any event, Mr Mensink had known of her intention to rely on the 2017 and 2022 Affidavits since 17 April 2026, when the interlocutory application was made seeking leave to file and serve an affidavit annexing the 2017 Affidavit, supported by submissions which stated that the Registrar, “continues to rely on the 2017 Mensink Affidavit and the 2022 Mensink Affidavit”.

108    The Registrar’s response also asserted that there was reasonable cause to decline each request. She denied that the originals of the 2017 and 2022 Affidavits have ever been in her possession or under her control. The Registrar asserted that Ms Hysenaj was outside Australia and no reasonable steps could secure her attendance at trial commencing on 15 June 2026, one business day after the request was made. The Registrar asserted that a request that she call the alleged contemnor as a witness in her own case was not reasonable because she could not compel Mr Mensink to give evidence and it would not be proper to call him. The Registrar indicated that it was not reasonable to call Mr Iskander because he was in Egypt and had stated that he did not have the financial and mental capacity to return to Australia and, further, Mr Mensink’s stated position was that no weight could be placed on any act done or evidence given by Mr Iskander.

109    I found that the Registrar gave written notice of her intention to adduce the 2022 and 2017 Affidavits for the admissions they contained on 5 May and 18 May 2026 respectively. The 21-day period expired on 26 May and 8 June 2026 respectively. Mr Mensink’s request was made on 12 June 2026. I found that Mr Mensink’s request was made outside the 21-day period.

110    Under s 168(2), the Court may give a party leave to make a request after the end of the 21-day period if satisfied that there is good reason to do so. Assuming that leave can be given nunc pro tunc, Mr Mensink has failed to demonstrate good reason. The explanation that his lawyers only understood on 25 May 2026 that the 2017 and 2022 Affidavits were to be adduced as admissions rather than as Mr Mensink’s testimony is unpersuasive. They could not reasonably have thought that the Registrar intended to call Mr Mensink to give evidence in the Registrar’s case for the prosecution of Mr Mensink for contempt. Even then, they delayed until 12 June 2026 before making the request. The request was made only one business day before the hearing. Mr Mensink has not demonstrated good reason to give leave to make the request out of time.

111    I found that Mr Mensink could not rely upon his request for the purposes of s 169(1) of the Evidence Act.

112    In any event, I would have held that the Registrar demonstrated reasonable cause for refusing to comply with Mr Mensink’s request. First, it is evident that the Registrar did not have in her possession or power the originals of the 2017 and the 2022 Affidavits. Both affidavits were filed electronically in the Court, so the originals must be elsewhere. Under clause 5 of Part 2 of the Dictionary, a document is taken not to be available to the party if and only if, relevantly, “it would be impractical to produce the document or thing during the course of the proceeding”, or, “it is not in the possession or under the control of the party and…cannot be obtained by any judicial procedure of the court”. The Registrar was simply not in a position to know where the originals of the 2017 and 2022 Affidavits may be, so that it could not be obtained by any process of third-party discovery or subpoena. Mr Mensink could not be compelled to produce documents that may be in his possession or control as this may offend the privilege against self-incrimination: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 (Boral) at [2]; Evidence Act s 128(1)(b).

113    Second, the persons required under the notice to be called as witnesses are “not available” within the meaning of s 169(4)(c). Under clause 4 of Part 2 of the Dictionary, a person is “taken not to be available to give evidence about a fact if…all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success”. The notice was provided one business day before the commencement of the hearing. Mr Mensink’s counsel accepted, “the practical virtual impossibility of having those people here and the Registrar being able to do so, even by video at such short notice”. In these circumstances, there were no reasonable steps that could have been taken to compel Mr Mensink, Mr Iskander and Ms Hysenaj to give evidence.

114    Further, the Registrar could not compel Mr Mensink as the alleged contemnor to give evidence in the proceeding against him for contempt: Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 at [120]; DHR International Inc v Challis (No 3) [2016] NSWSC 492 at [19]; Alpass v Hession [2017] VSC 748 at [63]; see also: Boral at [80]; Ford Motor Company of Australia Limited v Tallevine Pty Ltd (as Trustee for the Thornleigh Trading Trust) [2019] NSWSC 1914; Evidence Act s 128(1)(b).

115    Mr Mensink’s current solicitor, Mr Smith, stated in a letter dated 13 March 2026 that, “Mr Iskander is now a fugitive avoiding arrest in Egypt”. Ms Hysenaj was apparently in Boston in 2017, but the Registrar could not be expected to know her current location or arrange for her to give evidence on one business days’ notice. In these circumstances, the Registrar demonstrated reasonable cause for refusing to comply with Mr Mensink’s request. Accordingly, I declined to make the orders under s 169(1) of the Evidence Act sought by Mr Mensink.

116    I note that the Court was informed that Mr Mensink’s remaining objections to the evidence led by the Registrar had been resolved. The Registrar filed marked up affidavits highlighting a number of passages that were not relied on or passages upon which limited reliance was placed.

Consideration of Charge 2

117    Charge 2 alleges that Mr Mensink committed contempt of the Court by failing to comply with the Amended Examination Summons issued on 16 December 2016 pursuant to Order 2 of the Baldwin Orders.

118    The Registrar relied on the following evidence:

(a)    Affidavit of Natalie Caton (solicitor) affirmed 30 October 2020;

(b)    Affidavit of Timothy Foley (solicitor) affirmed 30 October 2020;

(c)    Affidavit of Clive Theodore Mensink sworn 25 December 2022;

(d)    Affidavit of Daniel Welsh (solicitor) affirmed 17 April 2026;

(e)    Affidavit of Daniel Welsh (solicitor) affirmed 25 May 2026 (annexing Mr Mensink’s 31 January 2017 affidavit);

(f)    Affidavit of Daniel Welsh (solicitor) affirmed 15 June 2026.

119    Mr Mensink relied on the following evidence:

(a)    Affidavit of Daniel Jacobson (solicitor) sworn 18 May 2026;

(b)    Affidavit of Daniel Jacobson (solicitor) sworn 12 June 2026.

120    Only Ms Caton was required for cross-examination. The principal points established under cross-examination was that Ms Caton received no proof of receipt following compliance with the methods of substituted service required under the Baldwin Orders and that the SPLs had not agreed to payment of Mr Mensink’s expenses to return for the examination.

121    The Baldwin Orders made on 15 December 2016 were as follows:

1.    The summons for examination issued by the Federal Court of Australia to Clive Theodore Mensink on 3 August 2016 be amended in accordance with the summons for examination attached and marked “A” (Mensink Summons).

2.    The return date for the Mensink Summons be adjourned to 9.30am on 22 February 2017 (both for the production of documents and for oral examination).

3.    The requirement for personal service of the Mensink Summons be dispensed with.

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

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

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

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

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

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

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

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

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

5.    Service in accordance with these orders shall be deemed good and sufficient service of the Mensink Summons upon Clive Theodore Mensink.

6.    Service in accordance with this Order will be deemed to have occurred on Mr Clive Theodore three (3) working days after compliance with order 4.

7.    The Applicants’ costs of, and incidental to, this interlocutory application be costs in the liquidation of Queensland Nickel Pty Ltd (in liquidation).

122    The Amended Examination Summons stated as follows:

A.    DETAILS OF SUMMONS

TO:     CLIVE THEODORE MENSINK

…

You are summoned

Date:

(a)    under section 596A of the Corporations Act 2001 (Cth) (Act) to attend before the Federal Court of Australia at Commonwealth Law Courts, 119 North Quay, Brisbane in the State of Queensland at 9.30am on 22 February 2017, and from day to day until excused by the Court, to be examined on oath or affirmation about the examinable affairs of Queensland Nickel Pty Ltd (in liquidation) ACN 009 842 068; and

(b)    in accordance with sections 596 and 597(9) of the Act, to produce at the examination on 22 February 2017, the original, or if there is none, a photocopy, of all the Books as detailed in Schedule 1 annexed to this summons that are in your possession, custody or under your control.

Registrar

B.    NOTICE TO PERSON TO BE EXAMINED

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

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

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

This summons is issued at the request of Applicants whose address for service is:

Emma Costello, King & Wood Mallesons, Level 33 Waterfront Place, 1 Eagle Street, Brisbane Qld 4000

…

123    Section 31(1) of the FCA Act confers power on the Court to punish for contempt. That section provides:

(1)    Subject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.

124    Section 24 of the Judiciary Act 1903 (Cth) provides that:

The High Court shall have the same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England.

125    At the commencement of the Judiciary Act, the Supreme Court of Judicature in England had the power to impose penalties for civil and criminal contempts: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 105-106.

126    In Witham v Holloway, Brennan, Deane, Toohey and Gaudron JJ explained at 530 that, in general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is contempt in the face of the court or there is interference with the course of justice. However, their Honours observed at 534 that the distinction between civil and criminal contempt is, “in significant respects, illusory”, and that contempt proceedings, “must realistically be seen as criminal in nature”. It was held at 534 that all charges of contempt must be proved beyond reasonable doubt.

127    There is no dispute about the general principles that should be applied when deciding whether a charge of contempt of the Court has been proved. I direct myself in accordance with the following principles:

Onus and standard of proof

(1)    Mr Mensink is charged with contempt of court. A charge of contempt is criminal in nature and must be proved beyond reasonable doubt.

(2)    The onus of proving the charge lies on the Registrar and remains on the Registrar throughout. Mr Mensink bears no onus. He is presumed not to be in contempt unless and until the charge is proved against him beyond reasonable doubt.

Proof beyond reasonable doubt

(3)    Proof beyond reasonable doubt is the highest standard of proof known to the law. It is a higher standard than proof on the balance of probabilities, which is the standard that applies in civil disputes. It is not enough that I think Mr Mensink probably committed the contempt; I must be satisfied of his guilt beyond reasonable doubt.

(4)    Before the charge can be found proved, I must be satisfied beyond reasonable doubt of each element that makes up the charge.

Reasonable excuse: evidential and legal burdens

(5)    Mr Mensink bears an evidential burden in relation to any reasonable excuse on which he relies. An evidential burden is the burden of adducing or pointing to evidence that suggests a reasonable possibility that Mr Mensink had a reasonable excuse for the failure charged: s 13.3(1) and (6) of the Criminal Code Act 1995 (Cth) (Criminal Code). Whether that evidential burden has been discharged is a question of law for me to determine: s 13.3(5).

(6)    If that evidential burden is discharged, the legal burden of proof remains on the Registrar to satisfy me beyond reasonable doubt that Mr Mensink did not have a reasonable excuse: s 13.1 of the Criminal Code. Mr Mensink does not bear any legal burden of proving that he had a reasonable excuse.

(7)    So, if I am satisfied that there is evidence that suggests the reasonable possibility that Mr Mensink had a reasonable excuse not to appear as required then I must assess whether I am satisfied beyond reasonable doubt on all of the evidence that he did not have a reasonable excuse for not attending.

Evidence and submissions

(8)    The evidence in the case consists of the documents and other materials admitted into evidence and the testimony of the witnesses. The submissions and statements of the parties and their counsel are not evidence.

Inferences and circumstantial evidence

(9)    I may draw reasonable inferences from facts that I find established, but I must not speculate or guess. An inference must be a reasonable and definite conclusion drawn from facts that are proved, not mere conjecture.

(10)    To the extent the Registrar relies on circumstantial evidence to prove a fact in issue, I may find that fact established only if it is the only reasonable inference open on the evidence. If there is any inference reasonably open on the evidence that is consistent with Mr Mensink not being guilty of the contempt, I must not find the contempt proved.

(11)    It is the inference of guilt, and not each individual fact relied upon, that must be established beyond reasonable doubt.

Acceptance of evidence

(12)    I may accept the whole, part, or none of the evidence of any witness. I may accept some parts of a witness’s evidence and reject other parts. This includes the affidavits of Mr Mensink that have been tendered by the Registrar. That is, I may accept the whole, part, or none of the matters contained in those affidavits.

Mr Mensink not giving evidence

(13)    Mr Mensink did not give evidence. That is his right. He is not bound to give or to call evidence and is entitled to insist that the Registrar prove the charge against him. The fact that Mr Mensink did not give evidence is not evidence against him. It is not an admission of guilt, it cannot be used to fill any gaps in the evidence led by the Registrar, and it cannot strengthen or make easier the Registrar’s case. I must not draw any inference adverse to Mr Mensink from the fact that he did not give evidence.

Assessment of Mr Mensink’s account

(14)    Mr Mensink’s account of the relevant events is before me in his affidavits, which were tendered as admissions.

(15)    To the extent that those affidavits assert what is said to be a “reasonable excuse” for him not attending:

(a)    if I accept Mr Mensink’s account, and consider that what he says amounts to a reasonable excuse, I must find the charge not proved;

(b)    if I do not accept his account, but it leaves me with a reasonable doubt about whether he had a “reasonable excuse”, I must find the charge not proved; and

(c)    if I do not accept his account, I must put that evidence to one side and ask: Has the prosecution, on the basis of evidence that I do accept, proved the charge against Mr Mensink beyond reasonable doubt?

No sympathy or prejudice

(16)    I must decide the case dispassionately, on the evidence, and without sympathy for, or prejudice against, either party.

(See, for example, R v Struhs [2025] QSC 010 at [59]-[72]; R v Wal Wal [2025] QSC 37 at [14]-[77].)

128    In Mensink v Registrar of the Federal Court of Australia [2024] FCAFC 124; 304 FCR 471, the Full Court at [28] and [36], referring to the judgment of the plurality in Boral at [45]-[47], observed that a contempt proceeding is a civil proceeding, albeit of a criminal nature, and is not a criminal proceeding. The Full Court also referred at [37] to the observations of Nettle J in Boral that:

[66]    The contempt alleged in this case is a criminal contempt…The relief which is sought is thus punitive, not coercive or remedial; and, therefore, the proceeding is a penal proceeding. Even so, it is a civil proceeding. It is tried by judge alone and, subject to the qualification explained below, the applicable rules of procedure are the rules of procedure which apply to other civil proceedings.

[67]    The qualification is that some of the safeguards applicable to criminal proceedings also apply to a civil proceeding for criminal contempt; including, in the case of a defendant who is a natural person, the privilege against self-incrimination and the privilege against self-exposure to penalty. Their application rests on “accepted notions of elementary justice” and reflects the fact that a proceeding for committal may result in “very serious interference with the liberty of the subject”.

129    The purpose of the proceeding brought by the Registrar is to punish the alleged disobedience of the Amended Examination Summons, and is therefore a criminal contempt. However, the approach of both parties was that the elements of a civil contempt identified by Perram J in Kazal at [73] are applicable in the present proceeding. Those elements are as follows:

3.    In a case of civil contempt, the Plaintiff must prove that:

(i)    an order was made by a court;

(ii)    the order was sufficiently clear such that one can be sure beyond reasonable doubt that the order was not complied with;

(iii)    the order was served on the alleged contemnor or that service was for some reason dispensed with under some lawful order;

(iv)    the alleged contemnor had knowledge of the terms of the order;

(v)    the alleged contemnor breached the order; and

(vi)    the alleged contemnor took a deliberate step which, even if not intended to, breached the order. What is necessary is not that the alleged contemnor intended to breach the order but rather that the order was breached and that the action constituting the breach was intended. Hence, casual, accidental or unintentional acts which breach an order are excluded.

4.    Whether the alleged contemnor intended to breach the order and to defy the Court is a matter going to penalty.

130    The Amended Examination Summons was issued pursuant to s 596A of the Corporations Act, which provides, relevantly, that the Court is to summon a person for examination about a corporation’s examinable affairs if the Court is satisfied that the person is or was an officer of the corporation. Under s 9, the “examinable affairs” of a corporation include its administration or winding up; and “Court” includes the Federal Court of Australia.

131    Under s 597(6) of the Corporations Act, a person who is summoned under s 596A to attend before the Court must not intentionally or recklessly fail to attend as required by the summons. Section 597(6A) provides, “Subsection (6) does not apply to the extent that the person has a reasonable excuse”. The Registrar accepts that in the contempt proceeding, it is also necessary to prove beyond reasonable doubt that Mr Mensink did not have a reasonable excuse for his failure to attend for examination.

132    I will consider each of the elements that the Registrar is required to prove beyond reasonable doubt in turn.

Whether an order was made by a Court

133    For civil contempt to be committed, an order must have been made by a Court: Kazal at [73(3)(i)].

134    The Registrar submits that the relevant order of the Court is the Amended Examination Summons. The Registrar does not rely on the Baldwin Orders because the Orders themselves do not require Mr Mensink to do anything: cf Mensink v Parbery at [23], [47], [195] and [197]. However, the Amended Examination Summons directed Mr Mensink to attend before the Federal Court of Australia in Brisbane at 9.30 am on 22 February 2017 and from day to day until excused by the Court.

135    Section 35A(1)(h) of the FCA Act provides that the powers of the Court that may be exercised by a Registrar include a power prescribed by the Rules of Court. Rule 16.1 of the Federal Court (Corporations) Rules 2000 (Cth) (the Corporations Rules) permits a Registrar to exercise the power under s 596A of the Corporations Act.

136    In Palmer v Ayres (2017) 259 CLR 478, the High Court at [32]-[35] and [60]-[61] described an examination summons under s 596A as an “order”. I am satisfied that the Amended Examination Summons is an order of the Court.

137    The Registrar submits that compulsive processes issued by the Court, including writs of subpoena and other processes commanding the attendance of a person before the Court, have long been recognised as an order of the Court for the purposes of contempt, and disobedience of such process has long been treated as a defiance of the Court’s authority. For example, in James v Cowan; Re Botten (1929) 42 CLR 305 at 311, the High Court confirmed the committal for contempt of a witness who, having been served with a subpoena duces tecum, refused to bring the documents into Court.

138    In Ditfort v Calcraft (1989) 98 FLR 158 at 160, Kirby P held:

There is a public interest in the exercise of the contempt power in cases of disobedience to an order of the court, including to subpoena requiring the attendance of a witness to give oral evidence or to produce documents.

139    The Registrar submits that this rationale applies with equal force to an examination summons under s 596A of the Corporations Act. The compulsory examination regime in Part 5.9 of the Corporations Act is directed to, “the administration or enforcement of the law concerning the corporation and its officers in public dealings”: Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (in liq) (2022) 275 CLR 508 (Walton) at 570, [170] (Edelman and Steward JJ). The Registrar submits that disobedience of an examination summons is no less an interference with the proper administration of justice than disobedience of a subpoena.

140    Mr Mensink submits that the Amended Examination Summons is not an order of the Court capable of supporting a charge of contempt. He submits that contempt proceedings do not supplant the statutory regime for non-compliance with an examination summons under Part 5.9 of the Corporations Act. He submits that the issuing of a subpoena provides no analogy given the comprehensive regime for an examination summons. The submission was not developed. However, I understand the argument to be that the creation of the statutory offence under s 597(6) indicates a legislative intention to displace the power of the Court to deal with a failure to comply with an examination summons as a contempt.

141    The Registrar submits that the contempt jurisdiction is preserved by s 1327 of the Corporations Act and operates in tandem with the offence provision. That section provides:

Nothing in a provision of this Act that provides:

(a)    that a person must not contravene an order of the Court; or

(b)    that a person who contravenes an order of the Court contravenes a provision of this Act or is guilty of an offence;

affects the powers of the Court in relation to the punishment of contempts of the Court.

142    Section 1327 makes it clear that s 597(6), which makes it an offence to intentionally or recklessly fail to attend as required by the examination summons, does not affect the power of the Court to punish for a contempt for failure to comply with an examination summons. Mr Mensink’s argument that the Court lacks such power must be rejected.

143    I am satisfied beyond reasonable doubt that on 16 December 2016, the Amended Examination Summons, which was an order of the Court, was issued.

Whether the order was sufficiently clear

144    The second element requires that the order be sufficiently clear such that one can be sure beyond reasonable doubt that it was not complied with: Kazal at [73(3)(ii)]; see also Australian Competition & Consumer Commission v Purple Harmony Plates Pty Limited [2002] FCA 407 at [17]. The need for clarity arises from the consequences which may follow from a finding of contempt: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 506 and 515-516.

145    The Amended Examination Summons identified Mr Mensink by name; required his attendance before this Court at a specified place (the Registry at 119 North Quay, Brisbane); at a specified time (9.30 am on 22 February 2017); for a specified purpose (to be examined on oath or affirmation about the examinable affairs of Queensland Nickel). It was in the prescribed form (Form 17). Its terms admit of no reasonable doubt as to what was required of Mr Mensink.

146    Mr Mensink submits that the Baldwin Orders are not clear because they do not require Mr Mensink to do anything, citing the reasons of Owen J in Australian Consolidated Press Ltd v Morgan at 515-516. However, the Registrar relies only upon Mr Mensink’s failure to comply with the Amended Examination Summons, not the Baldwin Orders. The Registrar also submits that whether they are read individually or together, there is a clear command to attend at a place.

147    I am satisfied that the Amended Examination Summons was sufficiently clear that the Court can be sure beyond reasonable doubt that it was not complied with.

Service of the order

148    The third element requires that the order was served on the respondent or that service was for some reason dispensed with under some lawful order: Kazal at [73(3)(iii)].

149    Order 3 of the Baldwin Orders dispensed with personal service. Order 4 provided for substituted service through eight channels (four postal addresses in Australia and four email addresses). Order 5 deemed service in accordance with the Orders to be good and sufficient service of the Amended Examination Summons on Mr Mensink. Order 6 deemed service to have occurred three working days after compliance with Order 4. The orders for substituted service have not been challenged and stand as valid orders of the Court.

150    Mr Mensink submits that service under the Baldwin Orders was irregular and ineffective. He contends that under r 41.07(1), only personal service of an examination summons is valid. He also contends that service is ineffective unless the examination summons has the endorsement required by r 41.06 of the Federal Court Rules.

151    Rule 41.06(a) provides, relevantly, that if an order requires a person to do an act and the consequences of failing to comply with the order may be punishment for contempt, the order must carry an endorsement that the person to be served will be liable to punishment for contempt if the person neglects or refuses to do the act within the time specified in the order. Under r 41.07(1), an order mentioned in r 41.06 must be served personally on the person who is bound to do the act.

152    Rule 1.3(1) of the Corporations Rules relevantly provides that, unless the Court otherwise orders, the Corporations Rules apply to a proceeding in the Court under the Corporations Act. Rule 11.4 deals with service of an examination summons issued under s 596A. It provides:

An examination summons issued by the Court must be personally served, or served in any other manner as the Court may direct, on the person who is to be examined at least 8 days before the date fixed for the examination.

153    In Mensink v Parbery, Bromwich J held (Besanko and Wigney JJ considering it unnecessary to determine the issue):

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

[111]     As a Form 17 examination summons is not an order for the purposes of r 41.06, it also follows that r 41.07 of the Federal Court Rules, which deals with service of such an order, does not apply. That is reinforced by the terms of r 11.4 of the Corporations Rules, which, inconsistently with r 41.07, provides that an examination summons must be personally served, or served in any other manner as the Court may direct, on the person who is to be examined, at least eight days before the date fixed for the examination…

154    Justice Bromwich continued at [117]:

…

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

…

155    Two relevant matters arise from these passages. First, the rules for service of an examination summons are those contained in r 11.4 of the Corporations Rules, rather than r 41.07 of the Federal Court Rules. Rule 11.4 plainly allows the Court to direct service in a manner other than personal service. Further, under r 1.3(2) of the Corporations Rules, the Federal Court Rules apply to the extent that they are relevant and not inconsistent with the Corporations Rules. Rule 10.24 of the Federal Court Rules, which permits the Court to make orders for service by means other than personal service, is consistent with r 11.4 of the Corporations Rules.

156    Secondly, the requirement for the endorsement described in r 41.06 does not apply to examination summonses issued under the Corporations Act. An examination summons must be in Form 17: r 11.3(3) of the Corporations Rules. The Amended Examination Summons was in Form 17 and included the endorsement, “If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice”. There was no requirement to also include the endorsement set out in r 41.06 of the Federal Court Rules.

157    Ms Caton deposes that on 16 December 2016, the Amended Examination Summons was posted to the four postal addresses and emailed to the four email addresses specified in the Baldwin Orders. That evidence has not been challenged.

158    Mr Mensink submits there is no evidence that any of the methods of service in the Baldwin Orders actually brought the Amended Examination Summons to the attention of Mr Mensink. However, that is beside the point. Order 5 provided that service in accordance with the Orders, “shall be deemed good and sufficient service of the Mensink Summons upon Clive Theodore Mensink”; and Order 6 provided that service in accordance with the Orders, “will be deemed to have occurred on Mr Clive Theodore [Mensink] three (3) working days after compliance with order 4”. Rule 10.24(c) of the Federal Court Rules expressly permits orders of that kind. To prove that the Amended Examination Summons was served, there is no requirement for the Registrar to prove any more than that the orders for service were complied with. The question of actual knowledge of the terms of the Amended Examination Summons arises under the next element.

159    In any event, while r 41.07(1) of the Federal Court Rules provides that an order mentioned in r 41.06 must be served personally, under r 41.07(2), if the person was notified of the terms of the order orally, by telephone or electronically, the person is taken to have been served with the order at the time the person heard or was notified of the order. As I will discuss, I am satisfied that Mr Mensink had knowledge of the relevant terms of the Amended Examination Summons prior to 22 February 2017 and he must have been notified of those terms orally, by telephone or electronically. Accordingly, he is taken to have been served with the Amended Examination Summons: cf Mason v MWREDC Limited [2012] FCA 1083 at [48].

160    I am satisfied beyond reasonable doubt that the Amended Examination Summons was served on Mr Mensink.

Whether Mr Mensink had knowledge of the order

161    The fourth element is knowledge of the terms of the order: Kazal at [73(3)(iv)].

162    It is necessary for the Registrar to prove that Mr Mensink had knowledge prior to 22 February 2017 that the Amended Examination Summons required him to attend the Federal Court of Australia in Brisbane on that date. The Registrar relies on admissions made in the 2017 and 2022 Affidavits.

163    Mr Mensink submits that the Registrar has not established beyond reasonable doubt that Mr Mensink was aware of the terms of the Amended Examination Summons or that he was required to attend for examination on 22 February 2017. Mr Mensink submits that the terms of the order of which knowledge is required to be proved include that he was liable to punishment for contempt or a penalty if he failed to attend and that he was required to produce the documents described in the Schedule. He also submits that if the District Registrar was going to elect for the enforcement regime for the Amended Examination Summons provided by s 597 of the Corporations Act not to be used and instead choose the contempt of court procedure, then a mandatory condition precedent was that the endorsement required under r 41.06 of the Federal Court Rules had to be made.

164    Mr Mensink submits that substituted service or deemed service is not sufficient to establish actual knowledge beyond reasonable doubt, referring to Nitiva v Director of Public Prosecutions [1999] NSWCA 332 at [20] and [24]. That submission can be accepted. There is no evidence that the Amended Examination Summons came to Mr Mensink’s attention through any of the methods of service ordered by the District Registrar.

165    Mr Mensink also argues that it has not been established beyond reasonable doubt that the 2017 and 2022 Affidavits are in fact his affidavits. He submits:

(a)    It is unclear who drafted the purported 2017 Affidavit. On its face, Mr Iskander is described as preparing it, but, on his evidence, he did not. Mr Palmer is identified as the person who handed the document to Mr Iskander.

(b)    Mr Iskander has been found by the Supreme Court of Queensland to have engaged in an egregious example of fraud within the legal profession in Queensland. Mr Iskander never spoke directly to Mr Mensink at any relevant time and received all instructions through Mr Palmer and Mr Sokolov. The Court cannot place any weight on the involvement of Mr Iskander in receiving, filing or exhibiting the document to an affidavit.

(c)    The form of the purported 2017 Affidavit is against its authenticity. The document is poorly drafted, involving irregular language and inconsistent use of pronouns.

(d)    The 2017 Affidavit purports to have been both sworn and affirmed.

(e)    The chain of custody of the document is unclear. It appears to originate from an unknown author; to have been irregularly witnessed by a notary public; apparently came into Mr Palmer’s possession and was provided to Mr Iskander, who filed it in the Court and exhibited it to Mr Iskander’s affidavit.

(f)    The 2017 Affidavit contains multiple chronological inconsistencies, and it has features which tend to indicate it being made by some other unknown person purportedly on behalf of Mr Mensink.

166    Mr Mensink submits that, in these circumstances, a hypothesis that someone forged his signature cannot be excluded.

167    I do not place any significance on the drafting issues, including the 2017 Affidavit purporting to be both sworn and affirmed, grammatical errors, typographical errors and chronological inconsistencies. Although these matters suggest that the affidavit was not drafted by a solicitor, the issue is not who drafted the affidavit, but whether Mr Mensink signed the affidavit and thereby affirmed the accuracy of its contents. Neither does the lack of clarity in the chain of custody of the document suggest that the affidavit was not signed by Mr Mensink.

168    The 2017 Affidavit names the deponent as Mr Mensink. The affidavit was, on its face, signed by the deponent in Boston before a Notary Public of the Commonwealth of Massachusetts. The Notary Public evidently signed the affidavit to indicate that the deponent had sworn/affirmed the affidavit before her. The Notary Public attested that the person signing the affidavit was Mr Mensink.

169    The 2017 Affidavit annexes a letter from Dr Manish Sagar dated 30 January 2017 which states Mr Mensink was a patient at Boston Medical Centre and was seen that day for a medical visit. The letter is consistent with Mr Mensink being in Boston on 31 January 2017 when the 2017 Affidavit was signed.

170    The 2017 Affidavit contains a great deal of information that could be expected to be within Mr Mensink’s knowledge. That information includes his activities as a director of Queensland Nickel and the administration and liquidation and legal proceedings involving Queensland Nickel. It also includes personal information, including details of Mr Mensink’s travel plans, his family, his divorce proceedings, his relationship with his current partner, his psychological state and health issues. The presence of such information is consistent with the affidavit being that which it purports to be, namely the affidavit of Mr Mensink.

171    It can be accepted that the 2017 Affidavit describes Mr Iskander as having prepared the affidavit when he did not and that Mr Iskander has been found by the Supreme Court of Queensland to have engaged in fraud. Mr Iskander apparently received his instructions through Mr Palmer and Mr Sokolov. However, any suggestion that Mr Iskander, Mr Palmer or Mr Sokolov may have forged Mr Mensink’s signature would be merely speculative.

172    I am satisfied beyond reasonable doubt that Mr Mensink signed the 2017 Affidavit and that it is his affidavit.

173    Mr Mensink also submits that it has not been established beyond reasonable doubt that the 2022 Affidavit is his affidavit.

174    The signing of the 2022 Affidavit was apparently witnessed by “A. Palmer”, who is described as a “Solicitor”. The presumption under s 148 of the Evidence Act that applies to the 2017 Affidavit does not apply to the 2022 Affidavit, since there is no evidence that the witness is an Australian lawyer.

175    However, Mr Mensink is named as the deponent of the 2022 Affidavit. The affidavit contains a signature that purports to be that of Mr Mensink. The affidavit contains a good deal of personal information concerning Mr Mensink, including details of his periods as a director of Queensland Nickel, his state of mind at various times and annexing letters from Dr Sagar concerning his psychological and medical conditions. Again, the presence of such information is consistent with the affidavit being that which it purports to be, namely the affidavit of Mr Mensink.

176    I am satisfied beyond reasonable doubt that Mr Mensink signed the 2022 Affidavit and that it is his affidavit.

177    The Registrar argues that the 2017 and 2022 Affidavits contain admissions that Mr Mensink knew of the requirements of the Amended Examination Summons.

178    Mr Mensink deposed in the 2017 Affidavit:

I understand I am required subject to a reasonable excuse not to attend to the Federal Court of Australia…from 22nd February 2017 and thereafter from day to day until excused by the Court for examination by the SPLs.

179    The language used in this passage substantially reproduces the Amended Examination Summons. The passage identifies the place of attendance (the Federal Court of Australia), the date (22 February 2017), the requirement to attend from day-to-day, the duration (until excused), the purpose (examination on oath or affirmation) and the examiners (the SPLs). The surrounding paragraphs proceed on the footing that Mr Mensink was under an obligation to attend and set out Mr Mensink’s purported reasons for non-attendance.

180    What is missing is a reference to the time (9.30 am) and the requirement to bring the books listed in the Schedule. However, it is clear from the 2017 Affidavit that the deponent had no intention of attending the Court at any time on 22 February 2017 and the passage sought to explain his understanding that he was required to establish a reasonable excuse for not attending. In that context, the absence of any reference to the time or the books required to be produced does not detract from a conclusion that he had knowledge of the terms of the Amended Examination Summons.

181    The Registrar submits that the inclusion of the word “not” in the passage is plainly a clerical slip. Mr Mensink submits that it is not open to ignore the language used and simply “airbrush” the word “not” from the evidence. However, while the language was loose, it is apparent from the context that the deponent was seeking to establish a reasonable excuse for not attending the Court for examination on 22 February 2017.

182    Other passages in the 2017 Affidavit confirm Mr Mensink’s knowledge of the Amended Examination Summons and of the steps taken to bring it to his attention. In particular, he deposes that Mr Palmer had informed him orders had been made for substituted service; he was, “not able to attend to the examinations as it would not be reasonable for [him] to do so”; he, “would be available for examination”, after his return in late July 2017; and his solicitors had requested that, “the proposed examinations be deferred until that time”.

183    The 2022 Affidavit deposes to Mr Mensink’s consultations with Dr Sagar of the Boston Medical Centre on 30 January and 1 February 2017 and annexes letters from Dr Sagar dated 30 January 2017 and 20 February 2017. Dr Sagar’s letter of 20 February 2017, provided two days before the scheduled examination, expressly refers to, “a stressful environment such as a legal examination”, and Mr Mensink’s ability, “to prepare for the examination”. It is plain that Dr Sagar must have received that information from Mr Mensink. Dr Sagar’s letter provides contemporaneous documentary evidence of Mr Mensink’s knowledge that he was required to attend for examination.

184    The 2022 Affidavit confirms that Mr Mensink had knowledge of the terms of the Amended Examination Summons prior to the date of the examination. He deposes, “I stated in my affidavit filed in the Federal Court dated 31 January 2017 that I acknowledged that I was required to travel back to Australia unless I had a reasonable excuse”. He deposes, “On 20 February 2017 I was seeking to get a medical clearance to travel back to Australia to give evidence in the Federal Court of Australia”. He also deposes, “When I made my Affidavit on 31 January 2017, I had every intention of travelling back to Australia to attend the Federal Court hearing on 22 February 2017”.

185    I am satisfied beyond reasonable doubt that prior to 22 February 2017, Mr Mensink had knowledge of the Amended Examination Summons and its requirement that he attend before the Brisbane Registry of the Federal Court of Australia for examination on 22 February 2017.

186    In circumstances where Mr Mensink’s admissions establish that he knew of the place of attendance, the date, the continuing day-to-day nature of the requirement, the duration, the purpose and the examiners, I am also satisfied beyond reasonable doubt that Mr Mensink knew that the Amended Examination Summons required him to attend at 9.30 am on 22 February 2017. In any event, whether or not Mr Mensink knew of the time required for his attendance is immaterial or of no moment in circumstances where he did not appear at all on 22 February 2017: cf Mensink v Parbery at [207].

187    Whether Mr Mensink knew of the requirement to produce the books described in the Schedule is also of no moment in circumstances where Charge 2 does not particularise any failure to produce the books.

188    Mr Mensink submits that the Registrar is required to prove that he had knowledge that he was liable to punishment for contempt or a penalty if he failed to attend and produce the documents described in the Schedule. He submits that such knowledge cannot be proven in the absence of the Amended Examination Summons bearing the endorsement required under r 41.06 of the Federal Court Rules. However, in Mensink v Parbery, Bromwich J held at [110] that the requirement for the endorsement described in r 41.06 does not apply to examination summonses issued under the Corporations Rules. His Honour also held at [202]-[204] that, even where an endorsement in accordance with r 41.06 is required, the absence of such an endorsement will not necessarily be fatal to contempt proceedings. That view was approved by the Full Court in Ultra Tune Australia Pty Ltd v Australian Competition and Consumer Commission [2025] FCAFC 1; 307 FCR 13 at [58], [60] and [117].

189    In Mensink v Parbery, Bromwich J held at [207]:

…The contempt power is not meant to be a limp and technical response to disobedience of orders made by a Court, to be governed by pedantic adherence to form ahead of substance. In some cases, the absence of an endorsement or of actual service of orders will be of no moment in all the circumstances. Contempt is meant to be a serious response, but still a flexible remedy, to be applied fairly and judicially and to enforce not just orders and the conduct of proceedings free of improper influence, but also the integrity of judicial and related proceedings and thereby the administration of justice.

(Citation omitted.)

190    In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2015] FCA 1275; 238 FCR 209, Jagot J observed that a party cannot avoid having to comply with a court order and thereby avoid the potential of being found in contempt of court merely by engaging in wilful blindness as to the terms of the court order. Accordingly, it is not essential to prove that the person contravened the order knowing that a consequence of contravention is liability to imprisonment, sequestration of property or punishment for contempt.

191    In any event, the Amended Examination Summons was endorsed, “If you do not attend the examination in accordance with this summons, without reasonable cause, you may be arrested and imprisoned without further notice”. Mr Mensink was notified that if he did not comply, he was liable to imprisonment. The 2017 Affidavit makes it clear that Mr Mensink knew that he was required to attend the examination in accordance with the Amended Examination Summons unless he could demonstrate reasonable excuse. The 2017 Affidavit can only have been made because Mr Mensink was aware there could be adverse legal consequences for him if he did not demonstrate reasonable excuse. In light of his knowledge of other significant parts of the order, it is open to infer that he knew of the part of the endorsement indicating that he was liable to be arrested and imprisoned if he failed to attend without reasonable cause. I am satisfied that this is the only reasonable inference open on the evidence.

192    The endorsement did not expressly distinguish between imprisonment for contempt or for the offence created under s 597(6) of the Corporations Act. Nevertheless, I am satisfied beyond reasonable doubt that Mr Mensink knew that he was liable to imprisonment if he failed to attend without reasonable cause. That knowledge is sufficient for the purposes of the contempt proceeding.

193    Mr Mensink submits that if the District Registrar was going to elect for the enforcement regime for the Amended Examination Summons not to be that provided by s 597 of the Corporations Act and to instead choose the contempt of court procedure, then the endorsement under r 41.06 of the Federal Court Rules had to be made. One difficulty with that submission is that it attributes to a Registrar the power to determine whether failure to comply with an examination summons under s 596A should be dealt with under s 597 of the Corporations Act rather than by contempt proceedings. Even assuming that such a decision is capable of being within the powers of the Registrar, it is certainly not one of the powers enumerated in s 35A of the FCA Act. Another difficulty is that in Mensink v Parbery, it was held at [110] that the requirement for the endorsement described in r 41.06 has no application to an examination summons issued under the Corporations Rules. The submission cannot be accepted.

194    I am satisfied beyond reasonable doubt that Mr Mensink had knowledge of the terms of the Amended Examination Summons prior to 22 February 2017.

Whether Mr Mensink breached the order

195    The fifth element requires that the alleged contemnor breached the order: Kazal at [73(3)(v)].

196    Mr Mensink does not dispute that he did not attend at 9.30 am on 22 February 2017 before the Brisbane Registry of the Federal Court of Australia or at any subsequent time.

197    I am satisfied beyond reasonable doubt that Mr Mensink failed to comply with the Amended Examination Summons.

Whether Mr Mensink took a deliberate step which breached the order

198    The sixth element requires that the alleged contemnor took a deliberate step which breached the order. What is necessary is not that the contemnor intended to breach the order, but that the act constituting the breach was intended; casual, accidental or unintentional acts are excluded: Kazal at [73(3)(vi)].

199    The Registrar submits that even taking Mr Mensink’s own account in his 2022 Affidavit at its highest, on 20 February 2017, he prayed at a church, “until…well enough to return to [his] hotel later that evening”. He then remained in Bulgaria and did not return to Australia.

200    Mr Mensink submits that the Registrar elides three separate ideas: (a) consciousness of obligation; (b) capacity to comply; (c) intentional decision not to comply. He submits that a failure to comply caused by acute psychiatric incapacity is the antithesis of intentional non-compliance. Mr Mensink submits there is no evidence of his psychological state after 20 February 2017. He submits that the 2022 Affidavit does not, in its terms, speak to his capacity to undertake an international flight on 21 February 2017 and there was limited time between returning to his hotel and the date for the examination. Mr Mensink deposes to being suicidal and his mental state was “relatively extreme”. He argues that an inference that he took a deliberate step which breached the order is not the only inference reasonably open and cannot be drawn beyond reasonable doubt.

201    The Registrar submits that the deliberate step element does not require an “intentional decision not to comply”. It requires that the act constituting the breach was intended; an intention to disobey or breach the order is not required.

202    In Porter v Steinberg [2019] WASC 291, Tottle J held at [38] that deliberate disobedience of an order does not require a specific intention to break the law or even knowledge on the part of the contemnor that the relevant conduct constituted a breach. His Honour held that it is sufficient that the contemnor was aware of the facts that make their conduct a breach of the order. His Honour held that in the context of contempt, “deliberate” means wilful in the sense that the actions of the alleged contemnor were not casual, accidental or unintentional.

203    It can be accepted that an inability to comply with an order through substantial psychiatric illness might, in some circumstances, mean that the actions of the alleged contemnor were unintentional and not deliberate. However, the evidence does not support Mr Mensink’s submission that his failure to comply was caused by any “acute psychiatric incapacity”.

204    Dr Sagar, whose qualifications are not disclosed, stated in his letter dated 30 January 2017 that, “I believe Clive suffers from severe anxiety and clinical depression”; and, “In my opinion, Clive is in no condition to travel back to Australia and incur more stress”. However, on 20 February 2017, Dr Sagar stated:

I do not think his present medical conditions preclude him from traveling. I do think that his clinical depression and anxiety disorder, however, make it difficult for him to function properly in a stressful environment such as a legal examination.

205    In his 2022 Affidavit, Mr Mensink deposed:

When I made my Affidavit on 31 January 2017, I had every intention of travelling back to Australia to attend the Federal Court hearing on 22 February 2017. When I received Dr Sagar’s letter I was stressed and depressed, I immediately caught a taxi to the airport to purchase a ticket to be in Australia for the hearing on 22 February 2017. In transit to the airport, I started thinking about the newspaper articles and the thought of coming back to Australia and I felt that I would rather commit suicide than return to Australia. I felt that I could not cope with all the pressure and the thousands of newspaper articles and media headlines, which were destroying my whole life and professional reputation. I felt helpless and that the world and me was out of control. As I caught a taxi to the airport I became uncomfortable and felt I was floating. On arriving at the airport to purchase a ticket I vomited. I thought I would rather be dead than face the humiliation and embarrassment that my return to Australia would involve. I may have been irrational.

…

On 20 February 2017 I did not want to die but I believed that if I went back to Australia, I would do myself serious harm. I got into a taxi and left the airport, and asked the driver to take me to a church. I felt I had no one left to turn to. I prayed until I felt well enough to return to my hotel later that evening. I felt bad and did not know what to do. I then stayed in Bulgaria to be with family members.

206    Dr Sagar’s opinion given on 20 February 2017 was that Mr Mensink’s conditions did not preclude him from travelling back to Australia. While Dr Sagar’s opinion was that Mr Mensink’s conditions would make it difficult for him to “function properly” in a stressful environment such as a legal examination, it does not suggest that he could not have complied with the requirement of the Amended Examination Summons to attend at the Federal Court of Australia on 22 February 2017 for examination. Mr Mensink’s evidence that he was unable to travel to Australia on 20 February 2017 is inconsistent with Dr Sagar’s opinion that he was not precluded from travelling to Australia at that time.

207    There are also substantial inconsistencies between Mr Mensink’s 2017 Affidavit and his 2022 Affidavit.

208    In his 2017 Affidavit, Mr Mensink deposed that he would not be returning to Australia for examination on 22 February 2017 for reasons including:

4.    …I will be returning in late July and will be available…at any time at their convenience after the end of the first week of August 2017, after I obtain appropriate Legal advice...

5.    …Following the end of the current Journey [on 8 February 2017]. I have made extensive arrangements to travel to Europe and spend time with my late father’s family in Holland. My overseas travel has been a long-standing arrangement and if I do not follow the current arrangements I will incur significant damages. In addition to personal and health determents set out hereunder; I will incur substantial financial costs and damages if I broke my current committed schedule which would have me returning to Australia in late July 2017. My father’s family are elderly and this may be the last time I will have to spend time with them.

…

17.    …Having delayed my Trip at substantial financial cost I cannot and could not then afford to change Trip plans.

…

29.    …I am presently travelling with my current partner and my personal relationship with her is paramount to me. I have promised her that she would accompany me on this trip and it is important to me that I do not let her down and that the examination does not interfere with my personal commitments that I have made. The thought of my personal relationship being damaged at this critical time of my life following my recent divorce distresses me greatly and is causing me mental anguish and pain which I find unbearable…My depression is such that my deteriorating financial position does not allow me to travel to Australia.

30.    …The financial cost to my current plans and the cost of returning to Australia is unreconcilable and I cannot afford such financial imposition…Attached and marked “CM-5” is a copy of the letter from his medical practitioner regarding my health and fitness to return back to Australia.

31.    This matter is distressing when I note that the GPLs and SPLs have refused to provide me a list of questions or information they seek and the examinations and the purpose for them seems to be of a punitive nature designed to garnish maximum publicity and controversy and fees for the GPLs and the SPLs and their lawyers that represent them and not for a proper purpose…

32.    My lawyers have requested that the GPLs and SPLs pay my reasonable expenses however they have refused in the first instance…

209    In his 2022 Affidavit, Mr Mensink did not mention any of these matters as being reasons why he could not or would not return to Australia for examination on 22 February 2017. He deposed that:

10.    On 20 February 2017 I was seeking to get a medical clearance to travel back to Australia to give evidence in the Federal Court of Australia. I stated in my affidavit filed in the Federal Court dated 31 January 2017 that I acknowledged that I was required to travel back to Australia unless I had a reasonable excuse. At all times I intended travelling back to Australia if my medical condition allowed.

…

13.    Until I received the letter from Dr Sagar on 20 February 2017, I understood the letter issued on 30 January 2017 applied to my condition in respect of travel back to Australia.

14.    When I made my Affidavit on 31 January 2017, I had every intention of travelling back to Australia to attend the Federal Court hearing on 22 February 2017…

…

16.    On 20 February 2017…I prayed until I felt well enough to return to my hotel later that evening. I felt bad and did not know what to do. I then stayed in Bulgaria to be with family members.

…

22.    As a result of my suicidal tendencies which persisted for a significant time throughout the course of the proceedings, I have a reasonable excuse not to attend the proceedings on the 22 February 2017 because of medical grounds due to the medication and the dosage of my medication which had caused me to feel suicidal.

210    First, Mr Mensink’s statement in the 2022 Affidavit that, “When I made my Affidavit on 31 January 2017, I had every intention of travelling back to Australia to attend the Federal Court hearing on 22 February 2017”, is quite inconsistent with the content of the 2017 Affidavit.

211    Second, the 2017 Affidavit is inconsistent with Mr Mensink’s claim in the 2022 Affidavit that, “At all times I intended travelling back to Australia if my medical condition allowed”. His 2017 Affidavit gave a number of reasons other than his medical condition for why he could not or would not return to Australia for the examination scheduled for 22 February 2017.

212    Third, in the 2017 Affidavit, while Mr Mensink refers to his “mental anguish and pain”, feeling “depressed and upset” and “emotional distress and anxiety”, there is no reference to any suicidal tendencies, a matter that would have been highly relevant to any reasonable excuse.

213    Fourth, Mr Mensink’s claimed understanding in his 2022 Affidavit of his inability to travel to Australia on medical advice (“I understood the letter issued on 30 January 2017 applied to my condition in respect of travel back to Australia”) is inconsistent with the plans he outlined in his 2017 Affidavit to travel extensively through Europe and then return to Australia in late July 2017.

214    In light of these inconsistencies, I am unwilling to accept Mr Mensink’s 2017 and 2022 Affidavits as reliable except to the extent that they consist of statements that are against Mr Mensink’s interests or are uncontroversial.

215    I do not give any weight to Mr Mensink’s self-serving account of intending to board a flight to Australia on 20 February 2017 but being unable to do so because he was suicidal.

216    In any event, even on Mr Mensink’s account in his 2022 Affidavit, he does not indicate that psychiatric reasons prevented him from returning to Australia in time for the examination on 22 February 2017. He deposes:

I prayed until I felt well enough to return to my hotel later that evening. I felt bad and did not know what to do. I then stayed in Bulgaria to be with family members.

217    The description that Mr Mensink, “felt bad and did not know what to do”, and that he then, “stayed in Bulgaria to be with family members”, does not support Mr Mensink’s submission that his failure to comply with the Amended Examination Summons was caused by “acute psychiatric incapacity”. The description he gave of his state of mind is consistent with a deliberate choice not to return to Australia for examination.

218    That Mr Mensink made a deliberate choice not to return to Australia for examination is also supported by the 2017 Affidavit in which he made it clear that he would not be attending the examination.

219    I am satisfied beyond reasonable doubt that Mr Mensink’s failure to comply with the Amended Examination Summons was deliberate and was not merely casual, accidental or unintentional.

Reasonable Excuse

220    The Registrar accepts that whether Mr Mensink has a reasonable excuse for failing to comply with the Amended Examination Summons is relevant to whether a contempt has been committed.

221    Section 597 of the Corporations Act provides, relevantly:

(6)    A person who is summoned under section 596A or 596B to attend before the Court must not intentionally or recklessly:

(a)    fail to attend as required by the summons; or

(b)    fail to attend from day to day until the conclusion of the examination.

(6A)    Subsection (6) does not apply to the extent that the person has a reasonable excuse.

222    The meaning of “reasonable excuse” was considered by Hely J in Bank of Valletta plc v National Crime Authority (1999) 164 ALR 45 (Bank of Valletta). Three propositions emerge.

223    First, the meaning of “reasonable excuse” is to be determined from the terms and structure of the statute and the circumstances of each case: Bank of Valletta at [39], [47]; see also Taikatov The Queen (1996) 186 CLR 454 at 464.

224    Second, reasonable excuse is not limited to physical or practical difficulties. It extends to any reason a reasonable person would regard as sufficient to justify non-compliance, but it is necessary to bear in mind the importance of the particular statutory prescription to the overall statutory regime: Bank of Valletta at [42].

225    Third, the question of what constitutes reasonable excuse involves an objective determination in all the circumstances: Bank of Valletta at [44], [47].

226    Section 596A of the Corporations Act imposes a duty on the Court to summon officers of corporations in external administration for examination about the corporation’s examinable affairs. As Edelman and Steward JJ held in Walton at [170], s 596A is directed to addressing, “by examinations of present or former corporate officers or provisional liquidators, the administration or enforcement of the law concerning the corporation and its officers in public dealings”. Their Honours referred at [170] to the “public interest in the external administration of a company”. The concept of reasonable excuse in s 597(6A) must be understood having regard to the purpose of an examination.

227    Mr Mensink has raised reasonable excuse on five asserted grounds. The Registrar submits that three of the grounds are, having regard to the statutory scheme, legally incapable of constituting a reasonable excuse for non-compliance with a summons issued under s 596A. However, that submission was not developed. I have treated the argument as simply an emphatic way of saying that it should be found that Mr Mensink did not have any reasonable excuse for failing to attend.

228    Mr Mensink bears the evidential burden in relation to reasonable excuse: see the note to s 597(6A) and s 13.3(3) of the Criminal Code. Section 13.3(6) of the Criminal Code states that “evidential burden” means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. Mr Mensink must point to enough evidence to suggest a reasonable possibility that the asserted reasonable excuse applies. Once the evidential onus is discharged, the legal onus to negative the asserted reasonable excuse beyond reasonable doubt rests on the Registrar.

229    I accept that through the 2017 and 2022 Affidavits, Mr Mensink’s evidential burden in relation to his grounds is satisfied. That is not to say that I accept the affidavits as being reliable, but I accept they suggest a reasonable possibility that the asserted reasonable excuses for failing to attend the examination apply. It is therefore necessary for the Registrar to negative the asserted reasonable excuses beyond reasonable doubt.

Ground 1: Pre-existing travel arrangements

230    In his 2017 Affidavit, Mr Mensink asserted a reasonable excuse on the basis that he had pre-arranged travel to Europe to spend time with his late father’s elderly relatives in Holland after the end of his cruise on 8 February 2017 and would “incur substantial financial costs and damages” if he broke that schedule. He also asserted that, “Having delayed my Trip at substantial financial cost, I cannot and could not then afford to change Trip plans”; and, “My depression is such that my deteriorating financial position does not allow me to travel to Australia”. However, he proposed instead to be available for examination after his planned return to Australia in late July 2017.

231    Mr Mensink’s evidence in the 2017 Affidavit is that:

(a)    On 18 May 2016, Dowsett J, “made orders in respect of the GPLs and the SPLs”. The Orders appointed the SPLs as additional liquidators with powers that expressly included conducting examinations pursuant to s 596A of the Corporations Act.

(b)    At the time of the Orders appointing the SPLs on 18 May 2016, Mr Mensink was, “planning to leave Australia on a world Trip”.

(c)    On about 19 May 2016, he was told by Mr Palmer that he should delay his trip as the liquidators may wish to examine him.

(d)    From 18 May 2016, he was on notice that the GPLs, “took out a summons in my name”;

(e)    He remained at the Queensland Nickel refinery in Townsville awaiting personal service of an examination summons; and

(f)    When the 8-day pre-examination service window for the first proposed examination had passed without service being effected, he left Australia to commence the Trip.

232    The Orders of 18 May 2016 appointed the SPLs as additional liquidators with powers that included conducting examinations pursuant to s 596A of the Corporations Act and commencing and conducting legal proceedings in relation to, relevantly, dealings or transactions between Queensland Nickel, its directors and officers and related entities, and potential claims for insolvent trading. Mr Mensink had, of course, been a director or the sole director of Queensland Nickel for substantial parts of the period between 2012 and 2017 before the company went into administration with no assets and liabilities of at least $226 million.

233    On 1 June 2016, the GPLs caused an examination summons to be issued to Mr Mensink.

234    On 28 July 2016, the SPLs commenced proceeding QUD580/2016 in this Court, seeking the examination of Mr Mensink and others in relation to the examinable affairs of Queensland Nickel and seeking production of documents. On 3 August 2016, the Examination Summons addressed to Mr Mensink was issued. The SPLs obtained the Examination Summons after Mr Mensink had already left the jurisdiction.

235    The Registrar submits that Mr Mensink’s travel commitments persisted after he had notice of the examination process. It is submitted that, measured against the purpose of Part 5.9 of the Corporations Act, a reasonable person would not regard travel commitments freely persisted in after notice of the compulsory examination regime as sufficient justification for non-compliance with a summons subsequently issued under s 596A.

236    Mr Mensink states in his 2017 Affidavit that it was reasonable for him to embark on his trip in June 2016 when no examination summons had been served by that time and that it was reasonable for him not to return because of the “substantial financial costs and damages” he would incur if he returned for the examination on 22 February 2017.

237    At the time he left Australia, Mr Mensink anticipated that he could be served with an examination summons by the GPLs in respect of the liquidation of Queensland Nickel. He was also aware of the appointment of the SPLs. I consider that a reasonable person would expect that if he embarked on an overseas holiday, he would do so under travel arrangements that would allow him to freely return at fairly short notice for any examination.

238    In any event, the 2022 Affidavit does not raise the asserted “substantial financial costs and damages” as a reason for his failure to attend for examination. Mr Mensink deposes that he had in fact caught a taxi to the airport to purchase a ticket to be in Australia by the date of the examination when he changed his mind about returning. The 2022 Affidavit refers only to a panic attack as a reason for not catching a plane to Australia on 20 February 2017.

239    I am satisfied beyond reasonable doubt that a reasonable person would not regard the asserted “substantial financial costs and damages” Mr Mensink would incur by breaking his holiday arrangements as sufficient to justify non-compliance with the Amended Examination Summons.

Ground 2: Refusal of the GPLs/SPLs to pay his travel and accommodation costs

240    In his 2017 Affidavit, Mr Mensink invoked as a reasonable excuse that the liquidators had refused to pay his costs of returning to Australia.

241    The general rule is that a person required by law to attend court and give evidence is not entitled to compensation: Crosbie v McLachlan [2013] FCA 1101; 217 FCR 211 at [27]. The s 596A regime does not condition the obligation to attend on payment of expenses by the liquidators; the only statutory provision for costs is s 597B, which applies where a summons is obtained without reasonable cause: Neil Raymond Cribb in his capacity as Liquidator of Phoenix Shutdown Services Pty Ltd (Receivers & Managers appointed) (in liq) [2017] WASC 363 at [3] and [11]. An examinee may apply to the Court for an order for narrow categories of out-of-pocket expenses (travelling, accommodation and, where appropriate, document-gathering): Crosbie v McLachlan at [27].

242    Mr Mensink did not apply to the Court for payment of out-of-pocket expenses in order to comply with the 22 February 2017 return date. In the absence of such an application, a reasonable person would not regard the liquidators’ refusal to pay his costs of returning to Australia as sufficient to justify non-compliance. That is particularly so in circumstances where Mr Mensink voluntarily departed Australia in circumstances where he must have anticipated he could be required for examination while he was away.

243    Again, the 2022 Affidavit raises no suggestion that the liquidators’ refusal to pay Mr Mensink’s expenses provided any reason to fail to attend for examination.

244    I am satisfied beyond reasonable doubt that a reasonable person would not regard the liquidators’ refusal to pay Mr Mensink’s travel costs as sufficient to justify non-compliance with the Amended Examination Summons.

Ground 3: Improper purpose

245    In his 2017 Affidavit, Mr Mensink asserts that the examination by the SPLs was, “not for a proper purpose and oppressive”. He characterises the examination as a, “fishing expedition designed to embarrass me and my family”. He also alleges that the examination was improperly being used to assist the GPLs in litigation in the Supreme Court of Queensland.

246    The Registrar accepts that improper purpose or oppression may found a reasonable excuse. The Registrar also accepts that, by the matters advanced in the 2017 Affidavit, Mr Mensink has discharged his evidential burden in relation to that ground. The Registrar submits that she has nevertheless negatived the ground beyond reasonable doubt.

247    Mr Mensink submits that the allegations in his 2017 Affidavit are matters he believed at the time. He submits that the evidence gives rise to reasonable doubt as to whether the predominant purpose of the SPLs in pursuing the examination was the public-regulatory function described in s 596A or the prosecution of a fishing expedition or the proceedings in the Supreme Court of Queensland. He submits that the SPLs and GPLs were in close working contact and had defined roles and the GPLs’ counsel had indicated coordination with the SPLs’ examination. He submits that the absence of any pre-disclosed list of areas for examination raises a doubt as to the purpose of the examination. He submits that these matters indicate the examination may have been for a purpose that contradicted or stultified the public interest in the external administration of a company. Mr Mensink submits that the Registrar has not led evidence to dispel those doubts and that the asserted purpose has not been negatived beyond reasonable doubt.

248    The test for an abuse of process under s 596A is exacting. In Walton, it was evident that the ultimate purpose of the proposed examination was to investigate and pursue a potential class action on behalf of former shareholders of the company against its former officers and advisers. The High Court held (by majority) that this was not an illegitimate purpose. As Edelman and Steward JJ held at [170], “A summons for examination will not be an abuse of process unless the predominant purpose of the examination would contradict or stultify – in some way – this public interest in the external administration of a company”. The “public interest” was described as, “the administration or enforcement of the law concerning the corporation and its officers in public dealings”.

249    Mr Mensink’s complaint does not approach that threshold. There is no requirement under Part 5.9 for the applicant for an examination summons to provide a list of questions in advance and the SPLs’ failure to do so is not evidence of an improper purpose.

250    The SPLs were not parties to the proceedings before Bond J of the Supreme Court of Queensland. Mr Mensink’s assertion that the examinations were being sought to assist the GPLs in those proceedings is not supported by any evidence and is merely speculative. In any event, such a purpose would not contradict or stultify the public interest in the administration or enforcement of the law concerning the corporation and its officers in public dealings.

251    Mr Mensink’s characterisation of the examination as a, “fishing expedition designed to embarrass me and my family”, finds no support in any evidence before the Court and is merely speculative.

252    The Registrar submits that Mr Mensink failed to test his asserted ground of impropriety through the Court’s processes by making an application to set aside the Amended Examination Summons.

253    Mr Mensink submits that the Registrar’s contention that Mr Mensink ought to have challenged the Amended Examination Summons through the Court should not be accepted because he was overseas, in a state of psychological vulnerability and faced with a short period between the issue of the Amended Examination Summons and the deemed date of service.

254    I do not accept that submission. The fact that Mr Mensink was overseas would not prevent him from making an application to the Court. His “psychological vulnerability” did not prevent him from making his 2017 Affidavit to demonstrate a reasonable excuse for his non-compliance, including making his allegation of improper purpose and oppression. The 2017 Affidavit was made some three weeks before the examination date, so there was adequate time to make an application.

255    Even if Mr Mensink believed that the examination was not for a proper purpose and oppressive, a self-formed belief of impropriety, untested through the Court, could not reasonably be regarded as displacing a Court order.

256    In any event, the 2022 Affidavit indicates that Mr Mensink intended to purchase a ticket to return to Australia on 20 February 2017 for examination and raises no suggestion that a reason for non-compliance was a belief that the examination was being conducted for an improper purpose and was oppressive.

257    I am satisfied beyond reasonable doubt that a reasonable person would not regard any belief by Mr Mensink that the examination was being conducted for an improper purpose and was oppressive as sufficient to justify non-compliance with the Amended Examination Summons.

Ground 4: Length, scheduling and duplication of the examinations

258    Mr Mensink complains about the total time required for examinations by both the GPLs and SPLs, the scheduling of the examinations and that two sets of examinations conducted by different liquidators in respect of the same matters was unreasonable.

259    The proper response to Mr Mensink’s stated concerns was again to make an application to the Court for appropriate orders. Mr Mensink did not make any such application.

260    Once again, there is no suggestion in the 2022 Affidavit that a reason for non-compliance with the Amended Examination Summons was the length, scheduling and duplication of examinations.

261    I am satisfied beyond reasonable doubt that a reasonable person would not regard these matters as sufficient to justify non-compliance with the Amended Examination Summons.

Ground 5: Medical and psychological condition

262    In his 2017 Affidavit, Mr Mensink asserted that he was, “depressed and upset about the whole QN saga”, and he had “depression”. Dr Sagar’s letter of 30 January 2017 expressed the opinion that Mr Mensink, “suffers from severe anxiety and clinical depression”, that was, “contributed by personal and work related stresses”. Dr Sagar also expressed the view, that, “Clive is in no condition to travel back to Australia and incur more stress”. Dr Sagar stated he had prescribed medications for Mr Mensink’s conditions and advised rest.

263    In his letter of 20 February 2017, Dr Sagar confirmed that he had diagnosed Mr Mensink with clinical depression, and initiated treatment with medications for depression and anxiety. Dr Sagar stated that it was difficult to provide a prognosis for his clinical depression. The medication may alleviate some of his clinical depression symptoms. Dr Sagar did not, “think his present medical conditions preclude him from traveling”. Dr Sagar went on to say that, “his clinical depression and anxiety disorder, however, make it difficult for him to function properly in a stressful environment such as a legal examination”. Dr Sagar added, “It is more probable than not that his present health condition could interfere with his ability to prepare for the examination and give cogent evidence”.

264    In his 2022 Affidavit, Mr Mensink stated that when he received Dr Sagar’s letter of 20 February 2017, he was stressed and depressed. He claimed he immediately caught a taxi to the airport to purchase a ticket to be in Australia for the hearing on 22 February 2017. In transit to the airport, he felt that he would rather commit suicide than return to Australia. He felt helpless and out of control and felt he was floating. On arriving at the airport, he vomited. He thought he would rather be dead than face the humiliation and embarrassment that his return to Australia would involve. He believed that if he went back to Australia, he would do himself serious harm. He went to a church and prayed until he felt well enough to return to his hotel later that evening. He felt bad and did not know what to do. He then stayed in Bulgaria to be with family members.

265    The Registrar submits that Mr Mensink’s account of the events on 20 February 2017 should not be accepted. She submits that there is no reference to any panic attacks and suicidal ideation in the 2017 Affidavit. The Registrar submits that the only contemporaneous medical evidence is from Dr Sagar, who is not a psychiatrist. Dr Sagar’s letter of 20 February 2017 concludes that Mr Mensink’s “present medical conditions” did not preclude him from travelling, which is against any incapacity to travel and attend. The Registrar also submits that Mr Mensink’s own conduct contradicts the asserted incapacity, including completing a Caribbean cruise, travelling to Boston and relocating to Bulgaria. The Registrar submits that a condition that accommodated international travel and international relocation but is said to have defeated compliance with the Court process is not a reasonable excuse.

266    Mr Mensink submits that suicidal ideation is capable of being a reasonable excuse. He submits that Dr Sagar’s letter of 20 February 2017 recording that Mr Mensink’s, “clinical depression and anxiety disorder… make it difficult for him to function properly in a stressful environment such as a legal examination”, on its terms, sustains a finding that his psychological condition extended beyond the ordinary anxiety inherent in the examination process. He submits that the absence in the letter of a reference to suicidal ideation is not evidence that the condition did not occur. He submits that the Registrar’s contention that Mr Mensink’s account of the airport incident appears “for the first time” in the 2022 Affidavit should not be accepted because the language of the 2017 Affidavit is consistent with the symptoms described in the 2022 Affidavit. He submits that the Registrar identifies no evidence to cast any doubt on Mr Mensink’s evidence in the 2017 and 2022 Affidavits. He submits that his earlier travel is not relevant to the events that occurred on 20 February 2017.

267    It can be accepted that medical and psychological conditions may in some circumstances constitute a reasonable excuse for failure to attend for examination. However, the inquisitorial nature of Part 5.9 examinations will be onerous and is likely to induce a good deal of stress and anxiety for any examinee.

268    In Crosbie and Bryant, in the matter of Australian Motor Finance Ltd (Receivers and Managers Appointed) and Australian Motor Finance Corporate Pty Ltd (Receivers and Managers Appointed) [2009] FCA 707 (Australian Motor Finance Ltd), Gray J observed:

[19]    On the weight of the evidence before me, I have reached the conclusion that I am not satisfied that Mr O’Brien was unable to attend Court on either 7 May or 25 May, and to undergo public examination. I bear in mind that the clear legislative purpose of the provisions of the Corporations Act with which I am dealing is to set up a procedure which is bound to be onerous to those who are summoned for public examination. It is a procedure that is bound to create a good deal of anxiety in any person involved in it. It might truly be said that the more serious the issues that a person perceives as being likely to be raised in the examination from that person’s point of view, the greater the level of anxiety that is likely to be raised. In order to be satisfied that an anxiety state amounted to a reasonable cause for non-attendance for the purposes of r 11.10 of the Corporations Rules, it would be necessary in my view to be satisfied that the anxiety state concerned went beyond the normal anxiety that involvement in such a procedure would be liable to generate. If that were not the case, the legislative purpose would be frustrated, because everybody summoned to attend for examination would be entitled to resist attendance on the basis that he or she was suffering from an anxiety state in consequence of being so summoned.

[20]    …Nevertheless, I am not satisfied on the material before me that the level of anxiety from which he suffers is significantly greater than would be suffered by anybody who was in his position and was required to be examined in public in consequence of problems with a corporation. Nor can I be satisfied that there is any great significance in the suggestion of a heart condition that might be exacerbated. In saying this, I express confidence that a registrar of this Court would conduct an examination in a way that was fair to any person being examined. If it becomes clear that an examinee is suffering physically or psychologically, obviously the registrar would adjourn the examination to enable steps to be taken to preserve the health of the person concerned. There would be nothing to stop arrangements being made for the presence of a medical practitioner, or a paramedic, if there were doubts about a person’s condition, in order to provide some confidence on the part of that person that his or her health will be managed appropriately if the examination should lead to any difficulties. It is unnecessary for me to determine at whose expense such arrangements might be made. In the absence of other evidence they could just as easily be made by Mr O’Brien himself as by the registrar, if they were felt to be necessary.

269    I accept that Mr Mensink suffered a psychological condition, described by Dr Sagar as “severe anxiety and clinical depression”. However, that does not of itself mean that Mr Mensink had a reasonable excuse for failing to attend for examination.

270    Dr Sagar’s opinion was that Mr Mensink’s conditions did not prevent him from travelling to Australia to attend the examination on 22 February 2017. Dr Sagar did express the view that Mr Mensink’s conditions would probably affect his ability to prepare for and function properly in an examination. However, Charge 2 frames the alleged contempt as failing to attend, not failing to participate. If Mr Mensink had attended the examination, he could have sought the kinds of accommodations suggested by Gray J in Australian Motor Finance Ltd at [20] and could even have sought an adjournment of the examination to accommodate his condition.

271    Mr Mensink claims to have immediately caught a taxi to the airport to purchase a ticket to be in Australia for the examination after receiving Dr Sagar’s letter of 20 February 2017 but suffered a panic attack and suicidal ideation that prevented him from travelling. I do not accept Mr Mensink’s self-serving evidence on this issue in his 2022 Affidavit as being reliable and capable of acceptance for reasons I have already explained. Mr Mensink claims that he now knows and understands that the drugs and the dosages had caused him to feel that he wanted to kill himself and not to come back to Australia. He asserts that, “As a result of my suicidal tendencies which persisted for a significant time throughout the course of the proceedings, I have a reasonable excuse not to attend the proceedings on the 22 February 2017 because of medical grounds due to the medication and the dosage of my medication which had caused me to feel suicidal”. The “proceedings” Mr Mensink refers to must be at least QUD580/2016 which was commenced by the SPLs on 28 July 2016 and sought the examination of Mr Mensink and others in relation to the examinable affairs of Queensland Nickel.

272    Accordingly, Mr Mensink claims that he had, “suicidal tendencies” when he consulted Dr Sagar in January 2017 and at the time he made his 2017 Affidavit on 31 January 2017. Yet in the 2017 Affidavit, in which he sought to establish a reasonable excuse for not attending the examination, Mr Mensink made no reference to any suicidal ideation. Dr Sagar’s letters, evidently reporting symptoms reported by Mr Mensink, made no reference to any suicidal ideation. The first claim to have such tendencies is in the 2022 Affidavit. The inconsistency between the contemporaneous material and the later claims in the 2022 Affidavit make the latter too unreliable to accept.

273    In addition, on Mr Mensink’s own account of the events of 20 February 2017, he prayed until he felt well enough to return to his hotel later that evening. He deposes that, “I felt bad and did not know what to do” and that, “I then stayed in Bulgaria to be with family members”. There is no claim to have been in a state of panic or having any suicidal tendency at that time. That Mr Mensink “felt bad and did not know what to do” and that he then decided to remain in Bulgaria with family members does not provide a reasonable excuse for failing to attend the examination.

274    I am satisfied beyond reasonable doubt that a reasonable person would not regard Mr Mensink’s claims concerning his psychological condition, panic attack and suicidal tendencies as sufficient to justify non-compliance with the Amended Examination Summons.

Settlement Deed

275    Mr Mensink repeats the submissions he made in an interlocutory application for summary judgment that his settlement with the SPL released him from any contempt proceeding in respect of the Amended Examination Summons.

276    I dealt with this argument in Registrar of the Federal Court of Australia v Mensink [2021] FCA 1152 and the Full Court dealt with that argument in Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102; 294 FCR 101. Mr Mensink has not raised any new arguments and I have nothing further to add. The argument must be rejected.

Conclusion

277    For the reasons I have given, I am satisfied that the Registrar has proven each necessary element of Charge 2 beyond reasonable doubt. I find that Mr Mensink committed the contempt alleged.

278    It is necessary to proceed to determine the appropriate penalty (if any) for the contempt and any other appropriate orders. Accordingly, I will give a date for the hearing of further submissions and make orders for the filing of any material and the exchange of written submissions. I will give the parties liberty to apply in respect of the orders made.

Associate:    

Dated:    8 October 2026