D.B. Mahaffy & Associates v Mahaffy [2014] NSWSC 307 (3 April 2014)

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D.B. Mahaffy & Associates v Mahaffy [2014] NSWSC 307 (3 April 2014)

Last Updated: 8 April 2014

Supreme Court New South Wales

Case Title:	D.B. Mahaffy & Associates v Mahaffy
Medium Neutral Citation:	[2014] NSWSC 307
Hearing Date(s):	3 April 2014
Decision Date:	03 April 2014
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	1. The hearing date of 7 April 2014 is vacated. 2. The defendant's (Jeffrey Mahaffy's) notice of motion seeking to punish the plaintiff for contempt is fixed for hearing on 15 August 2014 for one day. 3. Direct the Defendant (Jeffrey Mahaffy) to file and serve any further affidavits on which he wishes to rely on or before 30.04.14. 4. Direct the Defendant (Jeffrey Mahaffy) to file and serve written submissions, including submissions identifying the evidence to be relied upon, on or before 30.06.14. 5. Direct the Plaintiff (David Mahaffy) to file and serve his written submissions on or before 28.07.14. 6. The Plaintiff is not to be permitted to rely upon any further evidentiary material without the leave of the trial judge. 7. There be liberty to apply on three days' notice.
Catchwords:	CONTEMPT PROCEEDINGS - adjournment - no question of principle.
Cases Cited:	- DB Mahaffy & Associates v Mahaffy [2013] NSWSC 1863 - Mahaffy v Mahaffy [2013] NSWSC 245
Category:	Interlocutory applications
Parties:	D.B. Mahaffy & Associates Pty Ltd (First Plaintiff) David Bruce Mahaffy (Second Plaintiff/ Respondent) Jeffrey Robert Mahaffy (Defendant/ Applicant)
Representation
- Counsel:	Counsel: No appearance (Plaintiffs/Respondent) In person (Defendant/Applicant)
- Solicitors:	Solicitors: No appearance (Plaintiffs/Respondent) In person (Defendant/Applicant)
File Number(s):	2010/119143

EX TEMPORE JUDGMENT

1. These proceedings have a long history. They arise out of proceedings that were commenced in the Court of Appeal by two plaintiffs, DB Mahaffy & Associates Pty Ltd and David Mahaffy, against David Mahaffy's brother Jeffrey Mahaffy.

2. At some point in the years gone by Jeffrey Mahaffy filed a motion seeking to have David Mahaffy punished for contempt. In 2011 the Court of Appeal remitted that motion to the Common Law Division. Since then the matter has "progressed". There have been a number of judgements of this court including, if I might respectfully say so, a comprehensive judgment of Garling J delivered on 28 March 2013 dealing with a summary challenge to some of the charges (Mahaffy v Mahaffy [2013] NSWSC 245). As a result of that judgment Jeffrey Mahaffy filed an amended notice of charge and some supplementary affidavits.

3. For his part it seems that David Mahaffy simply stopped co-operating with the court process. Eventually at the instigation of Jeffrey Mahaffy his motion for contempt came before Davies J sitting as the duty judge on 12 December 2013 (see DB Mahaffy & Associates v Mahaffy [2013] NSWSC 1863). Prior to that appearance David Mahaffy had sent a facsimile indicating that he was sick and could not attend. He sought an adjournment. Faced with Jeffrey Mahaffy's wish to proceed, Davies J took the course of fixing the motion for contempt for hearing on 7 April 2014 with an estimate of one day. That estimate was derived from an assessment that David Mahaffy would not appear to answer the charges.

4. His Honour also directed Jeffrey Mahaffy to file and serve submissions concerning the further amended charges by 3 March 2014 and for David Mahaffy to file and serve submissions by 28 March 2014. Reflecting his level of non-compliance to that point, Davies J also ordered that David Mahaffy not be permitted to rely on further evidence without the leave of the trial judge.

5. On or about 28 March 2013 Jeffrey Mahaffy exercised the liberty to apply. This in part arose because he was conscious of his own failure to provide submissions in accordance with the timetable ordered by Davies J. He was also aware that David Mahaffy had not provided his submissions.

6. The matter has come before me today as duty judge. In the meantime I had been allocated to hear the matter on 7 April 2014. David Mahaffy did not appear. Instead he sent a facsimile referring to various matters. This included an assertion that he was advised that the matter was somehow "closed" and not proceeding on 7 April 2014 and otherwise stating that ill health prevented him from attending.

7. Jeffrey Mahaffy appeared. He read an affidavit which explained the circumstances in which he had failed to provide submissions. They included a fire at his house. In effect Jeffrey Mahaffy had re-listed the matter because he apprehended, as I will explain correctly, that the court would have misgivings about proceeding on 7 April 2014 in the absence of compliance with the order for written submissions. I say this is correct because in my view it is clear that the reason Davies J made an order requiring him to provide submissions was to ensure that, well prior to the hearing of the contempt charges, David Mahaffy was clearly aware of the nature of the case to be made against him. Some of the contempts that are identified in the amended statement of charge appear, prima facie, to be reasonably serious.

8. Notwithstanding an apprehension that David Mahaffy may continue to refuse to co-operate with the court process, as a person facing contempt charges, especially one who is unrepresented, he is entitled to be told with clarity the nature of the case made against him. In circumstances where, even though his reasons for non-compliance have been explained on their face in a satisfactory manner, Jeffrey Mahaffy has not been able to provide those submissions to David Mahaffy, I do not think that there is any choice but to adjourn the matter fixed for hearing on 7 April 2014.

9. The question then arises what to do with the matter. I have made inquiries and found that the next available day to fix the matter is Friday, 15 August 2014. I will shortly fix this matter for hearing on that day. It needs to be understood that that day has been fixed upon a basis that David Mahaffy will not attend. If he does attend and the matter is not complete in one day then it will be a matter for the trial judge hearing it as to whether he or she considers it should continue into the next week or be adjourned to a later date. For present purposes it needs to be understood by the parties that they have to be prepared to accommodate that flexibility.

10. It will also be necessary to fix a further date for Jeffrey Mahaffy to file written submissions in view of the period of the adjournment. I consider that that should occur by 30 June 2014, however he needs to understand that if that is not complied with then the fate of his motion will be jeopardised.

11. I have already referred to the statements by David Mahaffy that his health issues make it difficult for him to attend court and otherwise engage with these proceedings. From the bar table Jeffrey Mahaffy vigorously disputes these contentions. It is not possible in the circumstances to form any conclusion about them. It suffices to state that, in the circumstances, David Mahaffy's request for further time will be granted although not necessarily for the reasons he articulates. David Mahaffy needs to understand that this matter will be brought to completion one way or another.

12. Accordingly the court orders as follows:

(1) The hearing date of 7 April 2014 is vacated.

(2) The defendant's (Jeffrey Mahaffy's) notice of motion seeking to punish the plaintiff for contempt is fixed for hearing on 15 August 2014 for one day.

(3) Direct the Defendant (Jeffrey Mahaffy) to file and serve any further affidavits on which he wishes to rely on or before 30.04.14.

(4) Direct the Defendant (Jeffrey Mahaffy) to file and serve written submissions, including submissions identifying the evidence to be relied upon, on or before 30.06.14.

(5) Direct the Plaintiff (David Mahaffy) to file and serve his written submissions on or before 28.07.14.

(6) The Plaintiff is not to be permitted to rely upon any further evidentiary material without the leave of the trial judge.

(7) There be liberty to apply on three days' notice.

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