Australian Securities Commission v MacLeod (No 3) - [1993] FCA 172

Re: AUSTRALIAN SECURITIES COMMISSION
And: ROBERT JAMES MACLEOD; TRAINEX PTY. LTD.; STARLIGHT FILM STUDIOS LTD.;
STARLIGHT PICTURES PTY. LTD. and STAR PARTNERS PTY. LTD.
No. Q G3011 of 1992
FED No. 172
Number of pages - 16
Contempt
(1993) 113 ALR 374

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Drummond J.(1)

CATCHWORDS

Contempt - Multiple deliberate breaches of order - one breach different in character and substantially later in time than other two breaches - concurrent sentences for associated breaches - cumulative sentences for discrete breaches

Federal Court Rules - O. 37, r. 10; O. 52, r. 35(3)

AMIEU v Mudginberri Station Pty. Ltd. (1986) 161 CLR 98

Lee v Walker (1985) 1 ALL ER 781

Patton v Minister of Defence (1987) 71 ALR 637

Sun Newspapers Pty. Ltd. v Brisbane TV Ltd. (1989) 92 ALR 535

HEARING

BRISBANE, 15, 16, 24 February and 11 March 1993

#DATE 11:3:1993

Counsel for the applicant: Ms E.M. O'Reilly

Solicitors for the applicant: Australian Securities Commission

Counsel for the respondents: Mr R.I.M. Lilley

Solicitors for the respondents: John M. O'Connor and Co.

ORDER

THE COURT ORDERS THAT: 1. The first respondent be imprisoned for two months in respect

of his contempt, constituted by his breach of the order of Spender J of 3 July, 1992, that restrained the first respondent from disposing of, encumbering, taking any steps to dispose of, encumber, or dealing in any manner whatsoever with, any property of any of the respondents in this action, in that the first respondent, by transfer executed on 10 July, 1992 and dated 27 June, 1992, transferred his estate in real property situated in South Australia to Mrs. Margaret Rae Wilkie.

2. The first respondent be imprisoned for two months in respect

of his contempt constituted by his breach of the order of Spender J of 3 July, 1992, as varied by Cooper J on 21 July, 1992, that he furnish to the receivers appointed in this action a list of all property in which the respondents have had an interest, wherever the property is situated in Australia or overseas, and whether the interest is presently existing or has at any time since 1 January, 1989 so existed, and whether owned by the respondents individually or jointly or held upon trust for other persons, in that the first respondent failed to disclose his interest in this South Australian property in the list furnished to the receivers on 23 July, 1992.

3. The sentences of imprisonment imposed by orders 1 and 2 are

to be served concurrently.

4. The first respondent be imprisoned for a period of four

months in respect of his contempts constituted by breach of the order of Spender J of 3 July, 1992 as varied by the order of Cooper J on 21 July, 1992 restraining him from disposing of, encumbering, taking any steps to dispose of or encumber, or dealing in any manner whatsoever with, any property of any of the respondents, in that the…

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.

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Details

Case: [1993] FCA 172
Decision Date: 11 MARCH 1993

CaseChat Overview and Summary

The Australian Securities Commission brought a case against MacLeod in relation to breaches of court orders. The case, Australian Securities Commission v MacLeod (No 3), was heard in the Federal Court of Australia. The Commission sought committal of MacLeod for contempt of court, based on his failure to comply with several court orders. The orders in question prohibited MacLeod from disposing of or dealing with any property of the respondents, required him to furnish a list of all property in which the respondents had an interest, and prohibited him from interfering with a cheque belonging to Starlight Film Studios Ltd.

The central legal issue the court had to address was the appropriate penalty for MacLeod's multiple breaches of court orders. The court needed to determine whether the breaches were associated in nature, warranting concurrent sentences, or discrete, allowing for cumulative sentences. Additionally, the court had to consider whether the nature of the breaches justified a different approach to sentencing, given that one breach was substantially later in time and different in character from the others.

In its reasoning, the court held that the first two breaches, concerning the transfer of property and the failure to disclose this property in a list, were associated breaches. The court found that these breaches should be treated as a single contempt, resulting in a concurrent sentence of two months' imprisonment. The third breach, involving the cheque, was deemed a discrete breach, leading to an additional four months' imprisonment, to be served consecutively after the completion of the first sentence. The court justified this approach by emphasising the need to deter future breaches of court orders while also considering the severity and timing of the breaches.

The final orders of the court mandated that MacLeod be imprisoned for a total of six months, with specific details on the commencement and execution of these sentences. Furthermore, MacLeod was required to pay the applicant's costs of the motion for committal. A warrant for his arrest and committal to prison was issued, with conditions for its execution based on his compliance with an appeal process. This decision underscored the importance of strict compliance with court orders and the court's authority to impose significant penalties for contempt.

Orders

Orders of the court

THE COURT ORDERS THAT: 1. The first respondent be imprisoned for two months in respect

of his contempt, constituted by his breach of the order of Spender J of 3 July, 1992, that restrained the first respondent from disposing of, encumbering, taking any steps to dispose of, encumber, or dealing in any manner whatsoever with, any property of any of the respondents in this action, in that the first respondent, by transfer executed on 10 July, 1992 and dated 27 June, 1992, transferred his estate in real property situated in South Australia to Mrs. Margaret Rae Wilkie.

2. The first respondent be imprisoned for two months in respect

of his contempt constituted by his breach of the order of Spender J of 3 July, 1992, as varied by Cooper J on 21 July, 1992, that he furnish to the receivers appointed in this action a list of all property in which the respondents have had an interest, wherever the property is situated in Australia or overseas, and whether the interest is presently existing or has at any time since 1 January, 1989 so existed, and whether owned by the respondents individually or jointly or held upon trust for other persons, in that the first respondent failed to disclose his interest in this South Australian property in the list furnished to the receivers on 23 July, 1992.

3. The sentences of imprisonment imposed by orders 1 and 2 are

to be served concurrently.

4. The first respondent be imprisoned for a period of four

months in respect of his contempts constituted by breach of the order of Spender J of 3 July, 1992 as varied by the order of Cooper J on 21 July, 1992 restraining him from disposing of, encumbering, taking any steps to dispose of or encumber, or dealing in any manner whatsoever with, any property of any of the respondents, in that the first respondent obtained possession of a cheque for the sum of $7,200.00 drawn by Mrs. Carroll in favour of the third respondent, Starlight Film Studios Ltd., the property of Starlight Film Studios Ltd., and attempted to persuade Mr. Carroll to endorse the cheque over to him personally, and in that the first respondent returned the cheque to Mr. Carroll after Mr. Carroll refused to so endorse the cheque.

5. The sentence of four months' imprisonment imposed by order 4

is to commence upon completion of service of the terms of two months' imprisonment imposed by orders 1 and 2.

6. The first respondent pay the applicant's costs of and

incidental to the motion for committal to be taxed on a solicitor and client basis.

7. A warrant issue for the arrest of the first respondent and

for his committal to prison to serve the sentences of imprisonment which have been imposed upon him.

8. The warrant for the arrest and committal of the first

respondent to prison is to lie in the Registry unexecuted until 4 p.m. on Wednesday, 17 March, 1993.

THE COURT DIRECTS THAT:

1. If the first respondent attends upon the District Registrar

or a Deputy District Registrar and furnishes a written undertaking to the Court to prosecute an appeal against these orders with all expedition, then the warrant is to remain in the Registry, unexecuted, until the determination of the appeal or earlier order of the Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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