Appeal dismissed in contempt of court case

The Court of Appeal dismissed an appeal challenging contempt charges and privilege claims, affirming the lower court's rulings on freezing orders and legal privilege.

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v [NAME] [2013] NSWCA 426 Hearing dates: 10 September 2013 Decision date: 11 December 2013 Before: Meagher JA at [1]; Barrett JA at [43]; Gleeson JA at [44] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTEMPT OF COURT - first respondent restrained by freezing order from using his assets other than for permitted purposes - first respondent's assets defined to include assets of [NAME] respondent - separate order made restraining [NAME] respondent from disposing of its assets - first respondent applied moneys of [NAME] respondent for permitted purposes - whether orders unclear or ambiguous - whether first respondent knowingly interfered with administration of justice by assisting in breach of orders by [NAME] respondent Legislation Cited: Corporations Act 2001 (Cth), ss 601AD, 601AH Evidence Act 1995, s 119 Supreme Court Act 1970, s 101 Supreme Court Rules 1970, Pt 55 Div 3 Rule 7 Cases Cited: Attorney General v Times Newspapers Ltd [1992] 1 AC 191 Australian Consolidated Press Ltd v Morgan [1965] HCA 21; 112 CLR 483 Cardile v LED Buildings Pty Ltd [1999] HCA 18; 198 CLR 380 CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 CTM v The Queen [2008] HCA 25; 236 CLR 440 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Kirkpatrick v Kotis [2004] NSWSC 1265; 62 NSWLR 567 Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 [COMPANY] v [NAME] (No 5) [2009] FCA 16 Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 Seaward v Paterson [1897] 1 Ch 545 Sigalla v TZ Limited [2011] NSWCA 334 [NAME] v [NAME] (1865) LR 1 Eq 42 Wellesley (Lord) v Mornington (Earl) (1848) 11 Beav 180; 50 ER 785 Witham v Holloway [1995] HCA 3; 183 CLR 525 Z Ltd v A-Z and AA-LL [1982] QB 558 [NAME] v [NAME] of NSW [2004] HCA 56; 218 CLR 530 Category: Principal judgment Parties: [NAME] (First Appellant) [COMPANY] (Second Appellant) [NAME] (First Respondent) [COMPANY] (Second Respondent) [COMPANY] ([NAME] Respondent) Representation: Counsel: [redacted] [NAME] (First Respondent) No appearance ([NAME] Respondents) Solicitors: [redacted] [NAME] (Respondents) File Number(s): 2012/334072 Decision under appeal Jurisdiction: 9111 Citation: [NAME] v [NAME] (No 2) (Supreme Court of New South Wales, Gzell J, 21 September 2012, unreported) [NAME] v [NAME] (No 3) [2012] NSWSC 1174 Before: Gzell J File Number(s): 2010/285602

Judgment 1MEAGHER JA: [NAME] brought proceedings by motion charging the first respondent ([NAME]) and [COMPANY] (named as [NAME] respondent in the appeal) with contempt. That charge was brought in respect of orders made by Rein J on 16 September 2010. Those orders included that the [NAME] respondent "by itself, its employees, servants and agents" be restrained from withdrawing or otherwise dealing with moneys standing in an account with [COMPANY] "so as to reduce the balance of the account below the sum of $37,837.74". The statement of charge alleged that the [NAME] respondent was guilty of contempt by breaching that order and that [NAME] was guilty of contempt by causing the [NAME] respondent to breach that order. 2The [NAME] judge dismissed the charges of contempt against [NAME] and the [NAME] respondent: [redacted] 3In the course of hearing the motion [NAME] was required to rule on a claim for privilege made by the first and [NAME] respondents in respect of over 4,000 documents produced in answer to a subpoena addressed to a [NAME], an accountant retained on behalf of those respondents in the underlying proceedings. [NAME] sought the production of those documents for use in the cross-examination of [NAME]. He and the [NAME] respondent claimed privilege, relying on s 119 of the Evidence Act 1995, on the basis that the documents were confidential communications made for the dominant purpose of obtaining legal advice or otherwise confidential and prepared for that purpose. The [NAME] judge upheld that claim: [NAME] v [NAME] (No 2) (Supreme Court of New South Wales, Gzell J, 21 September 2012, unreported). 4The [NAME] appeal from each of those decisions. Although the latter decision was interlocutory, [NAME] do not seek leave to appeal from it under s 101(2)(e) of the Supreme Court Act 1970. Instead they rely upon their right to appeal the dismissal of their motion charging contempt as entitling them also to challenge the ruling in relation to privilege on the basis that it was an interlocutory order "which affected the final result"; in support of that proposition they rely upon the statement of Gaudron, McHugh and Hayne JJ in Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at [6].

The appeal does not proceed against the [NAME] respondent 5Although [COMPANY] was named as [NAME] respondent in the notice of appeal filed on 20 October 2012, it was deregistered on 13 October 2012. In consequence, by s 601AD(1) of the Corporations Act 2001 (Cth), it ceased to exist on that day and accordingly did not exist when the appeal proceeding was commenced. [NAME] sought to overcome that difficulty by applying for an order under s 601AH(2) that ASIC reinstate that registration. On [NAME]' ex parte application, Brereton J made that order on 9 September 2013, the day before the hearing of this appeal. That order did not, however, reinstate the company's registration, which requires an administrative act on the part of ASIC. As there was no evidence of that having occurred at the commencement of the hearing of the appeal, [NAME] accepted that the appeal could only proceed against the first respondent.

The relevant evidence 6It is convenient to summarise the relevant evidence before considering the reasoning of the [NAME] judge and the issues raised by the appeal. The latter are principally directed to the [NAME] judge's finding that [NAME] did not know or believe that the payment of moneys from the [NAME] respondent's account with [COMPANY] would involve any breach of the orders made on 16 September 2010. That was because, as he understood those orders, they also continued an existing order against him which permitted the payment of living, legal and business expenses using his assets, which, as defined by those orders, included the assets of the [NAME] respondent's business. 7Before December 2009 the first appellant and first respondent carried on a business of selling media advertising via a corporate vehicle, the second respondent, formerly named [COMPANY] ([NAME]). In December 2010 [NAME] commenced proceedings against [NAME] and the second respondent claiming that moneys received in the course of the unwinding of that business had been applied otherwise than in accordance with the terms of an agreement made on 19 December 2009. 8On 24 August 2010 solicitors acting for [NAME] sought undertakings from [NAME] that he not withdraw or deal with moneys held in three bank accounts of [NAME] with [COMPANY]. Following receipt of that letter, and acting at least partly on the advice of [COMPANY], [NAME] arranged on 25 August for the moneys in those three accounts to be consolidated into one account of [NAME]. On 27 August, on [NAME]' application, Nicholas J made orders restraining [NAME] and [NAME] from withdrawing money from the three accounts. Those orders were made ex parte and continued until 5.00pm on 30 August 2010. On 28 [NAME] received notice of them. He gave evidence that he informed the solicitor then acting for him that the three accounts had been closed and the funds transferred to a new account. That evidence was not challenged. On Sunday 29 [NAME]'s mother died. Understandably, he maintained that at this time he was "focusing on family". On 30 August the order made on 27 August was extended by consent "until further order". 9The [NAME] became aware on 31 August that the three accounts had been closed. On 1 September they obtained an ex parte freezing order against [NAME] and [NAME]. That order, made by Slattery J on the evening of that day, included the following specific orders and terms: "3 Subject to the next paragraph, this order has effect up to and including 5:00pm on Monday, 13 September 2010 ... On the return day at 10:00am there will be a further hearing in respect of this order before the Court. ... 5 In this order: ... 'you', where there is more than one of you, includes all of you and includes you if you are a corporation; ... if you are ordered to do or not to do something you must do it or not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way. ... FREEZING OF ASSETS 7 (a) You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia ('Australian assets') up to the unencumbered value of AUD$72,820.80.... 8 For the purposes of this order, (1) your assets include: (a) all your assets, whether or not they are in your name and whether they are solely or co-owned; ... (c) the following assets in particular: the property known as [ADDRESS], Cromer New South Wales or, if it has been sold, the net proceeds of the sale; the assets of your business [COMPANY] t/as [COMPANY] or, if any or all of the assets have been sold, the net proceeds of the sale; and any money in any and all bank accounts. ... EXCEPTIONS TO THIS

ORDER 11 This order does not prohibit you from: (a) paying your ordinary living expenses; (b) paying your reasonable legal expenses; (c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and (d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation." 10Because of the provisions of paragraphs 5, 8 and 11, the effect of these orders was not to prohibit [NAME] from using his assets, which by the definition in order 8(c) included the assets of the business of the [NAME] respondent, to pay ordinary living expenses, reasonable legal expenses or from dealing with or disposing of those assets in the ordinary and proper course of his business. 11Mr [NAME] received a copy of these orders on the evening of 1 September 2010. They were extended, apparently by consent, on 13 September 2010. 12On 16 September 2010 the following orders were made by Rein J by consent: "1. Orders that [COMPANY] ... be joined as [NAME] defendant to these proceedings.

2. Orders that the operation of the orders of Slattery J. of 1 September 2010, extended by Rein J. on 13 September 2010, be extended until further order of the Court.

3. Orders that the [NAME] defendant, by itself, its employees, servants and agents be restrained until further order of the Court, from withdrawing or otherwise dealing with the monies held standing in [COMPANY]'s account number XXX so as to reduce the balance of the account below the sum of $37,837.74." 13Mr [NAME] was not present in Court when these orders were made, nor was he provided with a copy of them at that time. His evidence before the [NAME] judge was that, at some stage after 1 September 2010, he understood that orders were to be made that extended the previous orders and permitted him to continue to use the money in the [NAME] respondent's account to pay the expenses of the company, himself and his basic living allowances ([NAME] 46). That understanding was based on conversations with his solicitors. He did not receive a copy of the orders made on 16 September 2010 until 19 October 2011. 14Mr [NAME] also gave evidence, which was not challenged, that between 22 September 2010 and 4 April 2011 he withdrew moneys from the [COMPANY] and paid living expenses, legal expenses and company bills and expenses. He said that he did so on the understanding that those payments were within the terms of the exception to the freezing order made on 1 September 2010 which, he understood, had been extended. 15On 9 March 2011 [NAME]'s former solicitors received and forwarded to [NAME] a letter from [NAME]' solicitors which, when referring to the orders, noted: "[ADDRESS] proceeded to make freezing Orders against the [NAME] on 1 September 2010. It was then necessary for the Plaintiffs to apply for further Orders from the Court by Consent on 16 September 2010 when the [NAME] Defendant was joined into the proceedings and the operation of the freezing Orders was extended to the [NAME] defendant". (emphasis added) The letter continued: "... we note that it appears from bank statements obtained from [COMPANY] under subpoena, that despite the existence of the Order, since the date of the Order, the [NAME] Defendant has caused the balance of the aforesaid account to fall below the amount provided by the Order. We advise that our clients reserve their rights arising from this matter." 16The [NAME] rely upon this letter as fixing [NAME] with knowledge of the terms of the orders made on 16 September 2010. The making of payments from the [COMPANY] of the [NAME] respondent continued for a further month until 4 April 2011.

The decision of the [NAME] judge 17The [NAME]' notice of motion sought orders that [NAME], as sole director of the [NAME] respondent, be found guilty of contempt for failing to comply with the order which restrained the [NAME] respondent and that the [NAME] respondent be found guilty of contempt for failing to comply with the order which restrained it. The first order as sought did not recognise the distinction between the contempt constituted by non-compliance with an order directed to the party charged and the contempt constituted by a [NAME] party who, knowing of an order, assists in its breach and thereby interferes with the administration of justice. That distinction is discussed by Young JA (Macfarlan JA and Handley AJA agreeing) in Sigalla v TZ Limited [2011] NSWCA 334 at [13]-[17]. 18Notwithstanding that the first of the orders sought does not recognise that distinction, the [NAME] judge considered that the statements of charge provided pursuant to Supreme Court Rules, Pt 55, Div 3, Rule 7 did so. The essence of the charge against the first respondent was that he was guilty of contempt "by causing the [NAME] [respondent] to breach" the order made by Rein J on 16 September 2011 and, as against the [NAME] respondent, that it was guilty of contempt "by breaching" that order. [NAME] does not challenge, by notice of contention, the [NAME] judge's conclusion that the statement of charge against him was sufficient to indicate that he was charged with knowingly assisting in a breach of the orders by the [NAME] respondent. 19Addressing the position of [NAME], the [NAME] judge correctly observed, at [20], that a person who is not personally bound by a court order may be liable for interfering with or obstructing the course of justice if he or she does so knowingly. The authorities supporting this proposition include Wellesley (Lord) v Mornington (Earl) (1848) 11 Beav 180 at 181; 50 ER 785 at 786; Seaward v Patterson [1897] 1 Ch 545 at 555-556; Z Ltd v A-Z and AA-LL [1982] QB 558 at 578-579, 581; Attorney General v Times Newspapers Ltd [1992] 1 AC 191 at 206; CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 at 530-531; Cardile v LED Buildings Pty Ltd [1999] HCA 18; 198 CLR 380 at [30]; [NAME] v [NAME] of NSW [2004] HCA 56; 218 CLR 530 at [121]; [NAME] at [14]-[17]. The [NAME] judge also correctly observed, at [18], that knowing obstruction or interference with the course of justice must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3; 183 CLR 525 at 534. 20In addressing whether [NAME] interfered with the course of justice by knowingly assisting a breach of the order by the [NAME] respondent, it was necessary to consider the meaning of the order and whether what happened was a breach of it which was or could have constituted a contempt by that respondent. The [NAME] judge did not squarely address this question. He appears to have proceeded on the basis that an element of the charge against the company included that it knew that what was being done was inconsistent with the terms of the orders: [20], [27]. That is not the position in relation to a party charged with contempt for breaching an order or undertaking. To establish a contempt by that party, whilst it is necessary to prove knowledge of the terms of the order, it is not necessary to prove that the alleged contemnor intended to disobey the order. The applicable legal principles were stated by Finn J in [COMPANY] v [NAME] (No 5) [2009] FCA 16 at [9] in a passage cited with approval by Tobias JA (Campbell JA agreeing) in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 at [16], [194]. 21An order whose meaning is unclear and ambiguous may not be enforced by proceedings for contempt against the person alleged to have breached it: Australian Consolidated Press Ltd v Morgan [1965] HCA 21; 112 CLR 483 at 492, 503, 515-516. For the same reason, such an order may not be the subject of a charge of interfering with the course of justice because one cannot knowingly assist the breach of an order whose meaning is unclear or open to real doubt. 22Whether a particular order or undertaking is sufficiently clear and unambiguous is itself a question about which minds may differ. In [NAME] v [NAME], with whom Windeyer J agreed, cited with approval (at 515) the statement of Jenkins J in Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 that "a defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken his undertaking. For the purpose of relief of this character, I think the undertaking must be clear and the breach must be clear beyond all question". Jenkins J described the questions of construction in that case as not being "entirely easy". Windeyer J (at 503) drew a distinction between an order or undertaking whose true meaning "although not immediately plain, can be ascertained according to ordinary rules of construction" and one which gives rise to uncertainties which cannot be resolved in that way. 23Barwick CJ formulated a perhaps more onerous test as to when an order will not be sufficiently clear. He considered (at 492) that if an order or undertaking "bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense which the Court assigns to it". 24An early statement of the relevant principle is that of Sir W. Page Wood, VC in [NAME] v [NAME] (1865) LR 1 Eq 42 at 48-49 where he observed that the order of the Court must be obeyed "unless there be some misapprehension which all mankind are subject to, and which may mislead him upon the plain reading of the order". Referring to that statement, Campbell J in Kirkpatrick v Kotis [2004] NSWSC 1265; 62 NSWLR 567, in a passage cited with approval by Beazley JA (McColl JA and Lindgren AJA agreeing) in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, observed at [55]: "...if an order is really not clear, it is unjust for someone to be punished for not obeying it. As well, though, the court approaches the question of whether the order is ambiguous on the basis that the recipient is expected to try to understand it and obey it. If a person taking that approach to the order could be in real doubt about what it meant, in a respect which is relevant to the particular charge of contempt which is brought, the charge will fail." 25The orders made on 16 September 2010 do give rise to difficult questions of construction. Order 2 extended the orders made on 1 September 2010. Those orders were directed to [NAME] and [NAME] and did not in terms prohibit him from paying living expenses and the like from his assets, which for the purposes of that order were defined to include the assets of the [NAME] respondent. Order 3 was directed to the [NAME] respondent "by itself, its employees, servants and agents". Those words did not bind other persons answering those descriptions, including [NAME], to comply with the order. They did, however, put such persons on notice that "they may be in trouble" if they knowingly assisted the [NAME] respondent to breach the order: [NAME] at [13]. In terms, order 3 is not qualified by the exception in order 11 of the orders continued by order 2. The subject matter of orders 2 and 3 overlaps. Order 2 treats the assets of the [NAME] respondent as assets of [NAME] and permits him to deal with them for specific purposes. Order 3 is also directed to the assets of the [NAME] respondent and is not subject to the same qualification. On the face of it there is an inconsistency between orders 2 and 3. Order 2 does not prohibit [NAME] from using funds of the company, which are treated as his assets, for specified limited purposes. Order 3 prohibits the company from using those assets for any purposes. The inconsistency could be resolved by reading order 3 as subject to the exceptions in the earlier order. It might also be resolved by treating the later and more specific order as prevailing; and as prohibiting what is not otherwise prohibited by order 2. 26Mr [NAME] was charged with knowingly assisting a breach of order 3 by the [NAME] respondent. From his perspective the question is whether he understood or knew, as [NAME] contend, that order 3 was not subject to the exceptions in the orders extended by order 2; those being the exceptions relating to living and other expenses. In answering that question it is not necessary to choose between possible meanings to be given to the two orders when read together or to decide whether order 3 was sufficiently clear to be enforced as against the [NAME] respondent. 27The [NAME] judge found that [NAME] did not understand or know that order 3 was not subject to those exceptions because he mistakenly believed "that the exceptions in the freezing order of 1 September 2010 applied to the [NAME] order of 16 September 2010": [23]. The [NAME] judge continued: "[24] The extension until further order of the freezing order made on 1 September 2010 supports this mistaken belief. That extension included the exceptions. [NAME] did was to interpret the [NAME] order in conjunction with the second order so that he thought that the exceptions in the second order applied as well to the [NAME] order. He did not interpret the [NAME] order as a separate injunction divorced from the extension of the freezing order. [25] That mistaken view was reasonably open to him and honestly held...." 28On that basis, the [NAME] judge concluded that the charge against [NAME] should be dismissed. It was not established that he had knowledge that what was being done was inconsistent with the terms of the order: [20], [21], [27]. [NAME] challenge that finding.

Issues in the appeal 29The [NAME] judge found that [NAME]'s mistaken belief was due to his interpreting order 3 in conjunction with order 2 so that he thought that the exceptions in order 2 applied as well to order 3: [23], [24]. [NAME] say that finding involved error because [NAME] had not received a copy of the orders until 19 October 2011 (ground of appeal 6). The finding is also challenged on the basis that the orders were "not ambiguous as to their terms" (ground of appeal 4). [NAME] also argue that the [NAME] judge erred when assessing [NAME]'s credit (grounds of appeal 3 and 5). Finally, they argue that the [NAME] judge made a finding that [NAME] knew the substance of the orders after receiving the letter of 9 March 2011 and should have concluded that he knowingly assisted in breaches of the order after that date (ground of appeal 2). The remaining grounds of appeal (grounds 1 and 7) challenge the holding that [NAME] was not guilty of contempt. They do not give any other reasons why that conclusion is said to have involved error.

The order dismissing the charge of contempt 30Addressing ground of appeal 6 first, there is a difficulty with the [NAME] judge's finding as to how [NAME] arrived at his mistaken belief that the exceptions in order 11 of the orders made on 1 September 2010 applied to order 3 made on 16 September 2010: [23], [24]. That reasoning assumes that [NAME] understood order 3 as qualified by the exception in the earlier orders. The difficulty with this analysis is that [NAME]'s evidence was that he did not see and read the orders made on 16 September 2010 until he received a copy of the sealed order on about 19 October 2011. The [NAME] judge made a finding to that effect: [14]. However, it does not follow that the [NAME] judge's finding as to the first respondent's mistaken belief involved error. This is because there was other evidence which justified [NAME]'s conclusion. 31As the position stood following the making of orders on 1 September 2010, there was no order directed against the [NAME] respondent and, by reason of the definition of "your assets" in order 8, its assets were assets which [NAME] was permitted, by the exceptions in order 11, to use to pay living, legal and ordinary business expenses. His evidence was that after those orders were made he understood that he could use money in his bank account and that of the [NAME] respondent to pay "expenses for the company and living expenses". He also understood that there was to be an extension or "carry on" of the orders made on 1 September. In cross-examination he said ([NAME] 46): "As I said, my understanding was that I was - this was an extension of previous orders and I could continue to use the money to pay the expenses of the company, myself and basic living allowances." and ([NAME] 49-50): "My understanding was that this was an extension of the 1 September court order. That was always my understanding, that I could use the monies for those reasons." and ([NAME] 52): "I gave consent to a continuance of the previous orders. I wasn't aware of new orders." and finally ([NAME] 54): "My defence is that my understanding was that I continue under 1 September under the rules that were put in place and put on me, that I effectively could continue to use my money to pay expenses as per the original court orders." 32The [NAME] judge did not form an adverse view as to [NAME]'s credit; and [NAME] do not point to any uncontroversial or incontrovertibly established fact which contradicts the [NAME] judge's finding, at [23], as to [NAME]'s belief. Nor is that finding glaringly improbable. As the [NAME] judge said, it was "corroborated by the fact that all of the drawings that were made from the [NAME] fell within the exceptions": [26]. Those drawings were made between 22 September 2010 and 4 April 2011 ([NAME] 50). Ground 6 does not justify the conclusion that the [NAME] judge erred in the finding he made as to [NAME]'s understanding of the relevant orders. 33There is one further matter. [NAME] were required to prove beyond reasonable doubt that [NAME] knew or understood the terms of the orders made on 16 September 2010 to be as they contend they should be read. The [NAME] judge found that [NAME] had a "mistaken" belief that the exceptions in the earlier order applied to the order made against the [NAME] respondent. It was not necessary for [NAME] to make that finding. It was sufficient that he could not be satisfied beyond reasonable doubt that [NAME] understood the orders as [NAME] say they are to be understood. [NAME] bore the onus of proving that [NAME] knew the terms of the order. The [NAME] judge's reference to [NAME] having a "mistaken belief" is not to what is sometimes called "the [NAME] v [NAME] defence" or to any ground of exculpation which was relied on by him: see in the judgment of the plurality in CTM v The Queen [2008] HCA 25; 236 CLR 440 at [6]-[8] the caution against allowing such references to pre-empt questions of onus of proof. The judge's reference is to [NAME]'s understanding, which, according to [NAME]' case, was "mistaken". Even if the [NAME] judge's finding as to [NAME]'s knowledge was shown to be wrong, it did not follow that the evidence justified the finding sought in [NAME]' case. 34Ground of appeal 4 - that the [NAME] judge erred in finding [NAME] had a mistaken belief because the orders of 16 September 2010 were not ambiguous - is beside the point in circumstances where it is not shown that [NAME] was provided with, or otherwise became aware of, the terms of all or some of those orders before 9 March 2011 at the earliest; and the source of his belief as to the terms of the orders was based upon his understanding of the earlier orders and that they had been extended. Furthermore, for the reasons outlined earlier, it is my view that the orders made on 16 September 2010 were unclear and ambiguous. The fact of that ambiguity is, to some extent, confirmed by the terms of the letter of 9 March 2011 from [NAME]' solicitors which asserts that on 16 September "the operation of the freezing Orders was extended to the [NAME] defendant". Those orders included order 11, which permitted [NAME] to use the [NAME] respondent's assets to pay living and legal expenses and business expenses bona fide and properly incurred. The same point is made by the [NAME] judge at [25]. Ground 4 is not made out. 35In support of grounds of appeal 3 and 5, [NAME] make two arguments concerning the [NAME] judge's conclusion that he did "not form an adverse view of [NAME]'s credit": [14]. First, they submit that the [NAME] judge's observation, at [16], that [NAME] had not been cross-examined upon his assertion that the withdrawals from the [NAME] fell within the exceptions to the freezing order was incorrect because [NAME] was cross-examined as to the fact that the moneys expended were withdrawn from the [NAME] respondent's account. That criticism of the [NAME] judge's observation is misconceived. [NAME] was correct to observe that [NAME] was not cross-examined on his evidence as to the purposes for which the withdrawals from that account were made. That those withdrawals were within the exceptions in the orders as [NAME] understood them supported his evidence as to that having been his understanding. The fact that he was cross-examined as to whether those moneys came from the [NAME] respondent's account was not controversial and beside the point. 36Secondly, [NAME] argue that the [NAME] judge erred when considering [NAME]'s credit in failing to take into account that he was "prepared to instruct his then legal representatives to consent to an injunction" on 30 August 2010 when he knew that the three accounts to which those orders were directed had been closed. This argument does not take account of [NAME]'s unchallenged evidence that after the three accounts were closed on 25 August 2010 he advised the lawyer acting for him of that fact ([NAME] 23, 24). That being the position, there was no withholding of relevant information from his lawyer and nothing in the circumstances to suggest that any omission to advise [NAME] or their lawyers of that fact involved conduct which in any way called into question [NAME]'s honesty or credibility. Neither of these arguments shows the [NAME] judge to have erred in the view he formed as to [NAME]'s credit. 37Finally, by ground of appeal 2, [NAME] argue that the [NAME] judge's finding, at [15], that [NAME] agreed that shortly after 9 March 2011 he "knew full well" the substance or the content of the order made on 16 September 2010 required a conclusion that he was at least guilty of contempt after that time. That submission misunderstands the [NAME] judge's finding, which was directed to his knowledge of the terms of the order rather than their effect or operation. This is clear from a consideration of the evidence. The first respondent was shown in cross-examination an extract of the letter dated 9 March 2011. It was pointed out that the letter described the terms of the order restraining the [NAME] defendant. [NAME] then agreed that at the time he saw and read the letter he knew "the substance or the content of the order made" ([NAME] 49). [NAME] then agreed that he continued to pay expenses from the [NAME] respondent's account after he had received that letter. He said he did so because he "did what I believed I could do" ([NAME] 49). [NAME] then repeated his understanding that the 16 September 2010 order was "an extension of the 1 September" order permitting him to use the moneys as he was doing ([NAME] 49-50). That understanding was consistent with the statement in the letter that "the operation of the freezing Orders" had been extended to the [NAME] respondent. The [NAME] judge's observation at [15] was not as to [NAME]'s understanding of the effect of the orders and did not justify a conclusion that [NAME] was aware of the effect of the orders, as contended for by [NAME], from that time. 38None of the grounds of appeal in relation to the order dismissing the charge of contempt against [NAME] is made out. There remains for consideration the grounds relied upon with respect to the ruling on the claim for privilege.

The order upholding claim to privilege 39The [NAME] may only challenge this finding without leave if it is one "which affected the final result". [NAME] do not otherwise seek leave to appeal from this order. 40The [NAME] cannot and do not say that any error of the [NAME] judge in upholding the claim to privilege did or would have made a difference to the outcome of the contempt proceeding. The highest that they put that argument is that the 4000 documents to which they sought access might have contained a written communication, or note of an oral communication, between the accountant and [NAME] or his solicitor which indicated that [NAME] was aware of the "true interpretation" of the orders, being that which they contended for. [NAME] accepted in oral argument that they had no basis for believing that there would be such material in the documents produced. They conceded (Tcpt 10/09/13, p 11) that the subpoena was issued "hoping that there might be such material". It was accepted that there was no such material in the documents produced by [NAME]'s solicitor in relation to which privilege had been waived. 41It is not necessary to address whether the [NAME] judge erred in upholding the claim for privilege. It has not been shown that the order doing so "affected the final result". For that reason grounds of appeal 8, 9 and 10 do not arise.

Conclusion 42The appeal should be dismissed with costs. 43BARRETT JA: I concur. 44GLEESON JA: I agree with Meagher JA.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2013