Rowbotham, Veldhuis and Wakeling JJA

5.28: Written questions
5.6: Form and contents of affidavit of records
5.8: Records for which there is an objection to produce
10.52: Declaration of civil contempt
10.53: Punishment for civil contempt of Court
14.88: Cost awards

Case Summary

In a bankruptcy Action, the Registrar in Bankruptcy (the “Registrar”) held the Appellant, Neil Lymer, in contempt of Court for failing to comply with two Orders to disclose documents after being given the chance to purge his contempt by filing more detailed Affidavits of Records and responding to written questions pursuant to Rule 5.28. In coming to its Decision, the Registrar provided a detailed list of reasons that the Appellant’s Affidavits of Records were insufficient.

A Single Appeal Judge upheld the Registrar’s Decision, and the Appellant appealed that Decision on three grounds: (1) that the finding of contempt was not based on proper evidence, (2) that the “contempt power” should be used sparingly, and (3) that the Registrar should not have considered an Affidavit that was filed in the Action, but not as part of the Application to have the Appellant’s contempt purged.

The Court of Appeal noted that pursuant to Rule 10.52 and 10.53, the Court should use a “bifurcated process” in assessing whether or not a party is in contempt, by determining whether there is liability, and then considering whether a defence exists. It is difficult to revisit a finding of liability for contempt, except in exceptional circumstances.

Regarding the first ground of Appeal, the Court reviewed the Registrar’s Decision and found no palpable or overriding errors. The Court held that the Registrar’s Decision was reasonable, and that the Registrar did not err in holding that the Appellant’s claims for privilege over certain records were insufficiently vague. The Court noted that “privilege belongs to the client”, and that a party objecting to the production of a record is still required to identify the record pursuant to Rule 5.8. Respecting the argument that contempt should be used sparingly, the Court noted that the Appellant had failed to disclose his records for many years, had changed his story over that period of time, and had been given many opportunities to provide further and better Affidavits of Records. Third, regarding the Appellant’s argument that the Registrar should not have considered certain evidence because it was not filed in support of the Appellant’s Application to purge his contempt, the Court of Appeal held that the Affidavit in question was part of the procedure that the Registrar had previously ordered, and so it was rightly considered by the Court below. The Appeal was dismissed.

The Court applied the default rule that Costs should be awarded against the unsuccessful party, pursuant to Rule 14.88.

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