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Victorian solicitor in contempt of court fails to reopen matter
A Victorian solicitor disciplined for contempt of court failed to reopen the matter on the grounds of alleged “equitable fraud”.
Naomi Neilson
Peter Hartley Ansell, a regional Victorian solicitor, claimed that proceedings in which he was found to be in contempt of court should be reopened “on the basis that they have been obtained by equitable fraud and in misapprehension of the law and relevant facts”.
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The Supreme Court’s prothonotary knocked back Ansell’s request to seal and file documents because it was “irregular”, and any application to reopen should be made in the Court of Appeal.
Ansell’s attempts to then have the Supreme Court make a direction that the prothonotary file the documents were unsuccessful.
“It is well established that the court has no power, except on appeal, to set aside a perfected order disposing of a proceeding, save on very narrow grounds,” Justice Anthony Cavanough said.
“No such grounds are identified … [and] even if such grounds had been identified and relied upon, the proper procedure would have been to commence a fresh proceeding by writ and statement of claim, not to file a summons in the finalised proceeding.”
Ansell was found in contempt of court – on a civil basis only – for not attending an investigator examination ordered by the court.
The primary judge, Justice John Forrest, confirmed the findings of contempt and ordered costs rather than impose a criminal conviction.
Ansell also attended two further examinations.
Although he claimed the proceedings should be reopened because of fraud and misapprehension, Justice Cavanough said Ansell did not explain “how it could be sensible to set aside an order of an examination after the examination has already taken place”.
Ansell also failed to identify the alleged perpetrators.
“Even where a party or other person proposes to bring a proper allegation of actual fraud in a trial court with a view to setting aside a perfected judgment … the appropriate way to do so is not by summons in the completed proceedings,” Justice Cavanough said.
