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1st Available v Melocco

1st Available v Melocco

Case [2016] NSWSC 30 5 February 2016

Contempt of Court

Standing

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: 1st Available v Melocco [2016] NSWSC 30
Hearing dates: 29/04/14, 9/10/14, 10/10/14, 03/11/14, 20/11/14
Date of orders: 05 February 2016
Decision date: 05 February 2016
Jurisdiction: Common Law
Before: Hidden J
Decision:
Defendant found guilty of contempt. Taking into account her apology, no penalty imposed.

Catchwords: CONTEMPT OF COURT – breaches of undertakings to the court by the defendant in relation to proceedings brought against her by the plaintiffs – whether terms of the undertaking is unambiguous because of obvious errors in the document setting them out – whether contempt motion resolved by subsequent dead of settlement of the proceedings – contempt established but no penalty imposed.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Uniform Civil Procedure Rules 2005
Cases Cited: Athens v Randwick City Council [2005] NSWCA 317, 64 NSWLR 58
Attorney-General v Times Newspapers Ltd [1974] AC 273
AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81, 78 NSWLR 302
B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227
Commissioner of Fair Trading v Rixon (No 2) [2014] NSWSC 431
Electric Generation Corporation v Woodside Energy Ltd [2014] HCA 7, 251 CLR 640
Gilbert v Gilbert [1955] St R Qd 245
Hughes v NM Superannuation Pty Ltd [1993] 29 NSWLR 653
Karam v ANZ Banking Group [2001] NSWSC 709
Kirkpatrick v Kotis [2004] NSWSC 1265, 62 NSWLR 567
Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) FCA 83, 149 FCR 494
National Australia Bank (NAB) Limited v Juric [2001] VSC 375
NCR Australia v Cricket Connection [2005] NSWSC 1118
S & M Motor Repairs v Caltex Oil (1988) 12 NSWLR 358
Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170
Witham v Holloway (1995) 183 CLR 525
Wyszynski v Bill [2005] NSWSC 110
Texts Cited: Halsbury’s Laws of Australia
Category: Principal judgment
Parties: 1st Available Ltd (1st plaintiff)
Klaus Bartosch (2nd plaintiff)
Kathryn Ann Melocco (defendant)
Representation:
Counsel:
T Blackburn SC with ATS Dawson (plaintiffs)
JB Conomy (Sol) with JM Laxon (Sol) (defendant)
Solicitors:
Alistair McKeough, Whittens & McKeough (plaintiffs)
John Laxon, Laxon Lex Lawyers (defendant)

File Number(s): 2013/266596

Judgment

HIDDEN J: These are proceedings for contempt brought by the plaintiffs, 1st Available Ltd and Klaus Bartosch, against the defendant, Kathryn Ann Melocco. Ms Melocco is alleged to have been in breach of certain undertakings she gave relating to proceedings between the parties commenced in 2013.
Mr Bartosch is the managing director of the first plaintiff, 1st Available. The business of that company is the provision of online health care appointment bookings. Ms Melocco is a former employee of the company, and had also been a consultant for some months under a contractual arrangement. Put shortly, in the proceedings instituted in 2013 the plaintiffs claimed that Ms Melocco had published statements which were highly critical of them and were injurious to the pursuit of the company’s business, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1st Available v Melocco

Details

AGLC: 1st Available v Melocco [2016] NSWSC 30
Case: [2016] NSWSC 30
Decision Date: 05 February 2016

CaseChat Overview and Summary

In the matter of 1st Available v Melocco, the Federal Court of Australia was tasked with examining breaches of undertakings by the defendant, Melocco, in proceedings brought against her by the plaintiffs. The central dispute revolved around whether the terms of the undertakings provided by Melocco were clear enough to be enforceable, given the apparent errors in the document outlining these terms. The plaintiffs argued that Melocco had failed to adhere to the conditions set out in the undertakings, while Melocco contended that the errors rendered the document ambiguous and, therefore, not binding.

The primary legal issue the court had to resolve was the clarity and enforceability of the terms set forth in the undertakings. The plaintiffs claimed that Melocco's actions constituted contempt of court due to her failure to comply with the undertakings. Melocco, on the other hand, argued that the errors in the document meant that the terms were not sufficiently clear to hold her in contempt. The court had to determine whether the errors in the document rendered the terms ambiguous and, if not, whether Melocco's actions indeed constituted contempt of court.

The court found that while the terms of the undertakings were indeed clear and enforceable despite the errors in the document, the contempt motion was rendered moot by the subsequent settlement of the proceedings between the parties. As a result, the court determined that contempt had been established but did not impose any penalty. The court reasoned that since the underlying dispute had been resolved, it was unnecessary to impose a penalty for the contempt that had been found.

In conclusion, the court's decision was that contempt of court had been established due to Melocco's breaches of the undertakings, but no penalty was imposed because the underlying dispute had been settled. The court held that the terms of the undertakings, despite the errors in the document, were clear and enforceable.

Orders