(Federal Court of Australia) The court has a discretion to enforce a breach of an order by committal despite the absence of a formal penal notice. The discretion conferred by RSC.Ord.45 r.7(6) applied not only when there had been no service at all of a copy of the court order but also when there had been no service of the court order ‘in accordance with this rule’ which encompassed a case where the order which had been served did not contain a penal notice.
McCowan LJ said: ‘Protection is provided for the person against whom it is sought to enforce the order by the words in paragraph (6) ‘may be enforced.’ (I should add that neither counsel relied on paragraph (7). It is stated to be without prejudice to the court’s powers under Order 65, rule 4, which are powers to order substituted service where it appears to the court to be impracticable to serve a document in the manner prescribed. This suggests to me that the dispensing power provided by paragraph (7) is intended to be exercised prospectively).’
Judges:
Neill LJ, McCowan LJ
Citations:
Unreported, 25 July 1990, [1991] FCR 332
Statutes:
Rules of the Supreme Court Order 45 r 796)
Jurisdiction:
Australia
Cited by:
Cited – ABC and Others v CDE and Others QBD 3-Nov-2009
The first claimant sought committal of the first defendant for contempt of court, alleging breach of a freezing order, saying that the defendant had created a sham debt and repaid it.
Held: There had been no genuine loan agreement, and the . .
Criticised in part – Davy International Ltd and others v Tazzyman and others and Davy International Ltd and others v Durnig and others CA 1-May-1997
. .
Cited – ABC and Others v CDE and Others QBD 3-Nov-2009
The first claimant sought committal of the first defendant for contempt of court, alleging breach of a freezing order, saying that the defendant had created a sham debt and repaid it.
Held: There had been no genuine loan agreement, and the . .
Lists of cited by and citing cases may be incomplete.
Contempt of Court
Updated: 07 July 2022; Ref: scu.377370
