Commissioner for Consumer Protection v Armstrong (No 4)
[2015] WASC 8
•16 JANUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: THE COMMISSIONER FOR CONSUMER PROTECTION -v- ARMSTRONG [No 4] [2015] WASC 8
CORAM: BEECH J
HEARD: 10 DECEMBER 2014
DELIVERED : 16 JANUARY 2015
FILE NO/S: CIV 1611 of 2012
BETWEEN: THE COMMISSIONER FOR CONSUMER PROTECTION
Plaintiff
AND
FAY MARIE ARMSTRONG
Defendant
Catchwords:
Courts and judges - Contempt of court - Contempt by breaching injunction - Turns on own facts
Legislation:
Nil
Result:
Finding of contempt
Category: B
Representation:
Counsel:
Plaintiff: Mr M G S Crowley
Defendant: In person
Solicitors:
Plaintiff: Department of Commerce
Defendant: In person
Case(s) referred to in judgment(s):
Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; (2001) 122 A Crim R 166
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Briggs v Lunt [No 4] [2011] WASCA 145
Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195
Deckers Outdoor Corporation Pty Ltd v Farley (No 6) [2010] FCA 391
Domican v The Queen (1992) 173 CLR 555
International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201
Liberato v The Queen (1985) 159 CLR 507
Miller v Eurovox Pty Ltd [2004] VSCA 211
R v Lovelady; Ex parte Attorney General [1982] WAR 65
R v Pearce (1992) 7 WAR 395
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
The Commissioner for Consumer Protection v Armstrong [2012] WASC 206
The Commissioner for Consumer Protection v Armstrong [2012] WASC 206 (S)
The Commissioner for Consumer Protection v Armstrong [No 2] [2014] WASC 167
The Commissioner for Consumer Protection v Armstrong [No 3] [2014] WASC 285
Winmar v The State of Western Australia [2007] WASCA 244
Witham v Holloway (1995) 183 CLR 525
BEECH J:
Introduction
The Commissioner for Consumer Protection (the Commissioner) seeks an order that Ms Fay Armstrong, the defendant, be committed for contempt of court for disobedience of orders I made on 22 August 2012.
On 12 May 2014, I heard the Commissioner's application in the absence of Ms Armstrong. On 19 May 2014, I published reasons for finding that I was satisfied beyond reasonable doubt that Ms Armstrong committed a contempt of court by disobeying par 3 of the orders of 22 August 2012 in three specific respects.[1]
[1] The Commissioner for Consumer Protection v Armstrong [No 2] [2014] WASC 167
Subsequently, Ms Armstrong applied for leave to reopen my finding that she committed a contempt of court. I heard that application on 5 August 2014. On 13 August 2014, I published reasons granting leave to Ms Armstrong to reopen my finding of contempt.[2]
[2] The Commissioner for Consumer Protection v Armstrong [No 3] [2014] WASC 285.
Ms Armstrong has filed a number of affidavits, sworn by her, in opposition to the Commissioner's application.
At the hearing of the application on 10 December 2014, Ms Armstrong cross‑examined two of the deponents of affidavits on which the Commissioner relied, namely Ms Michelle Brown and Mr Raymond Brown, and was herself cross‑examined.
By way of broad summary:
(1)the Commissioner alleges that Ms Armstrong committed a contempt by disobeying the orders of 22 August 2012 in the course of the sale of a puppy to Mr and Ms Brown;
(2)Ms Armstrong denies that she sold any dog to Mr and Ms Brown;
(3)it is not in any real doubt that the conduct of the person who sold the dog to Mr and Ms Brown would, if engaged in by Ms Armstrong, have amounted to a breach of the orders of 22 August 2012. The question is whether it is proved beyond reasonable doubt that it was Ms Armstrong who engaged in that conduct; and
(4)for the reasons that follow, I am satisfied beyond reasonable doubt that Ms Armstrong sold the puppy to Mr and Ms Brown.
A number of aspects of what I said in The Commissioner for Consumer Protection v Armstrong [No 2][3] are not controversial, and have not been challenged by any evidence or submission from Ms Armstrong. It is convenient in those respects to adopt and repeat what I said in my earlier decision.
[3] The Commissioner for Consumer Protection v Armstrong [No 2] [2014] WASC 167.
Background to the orders of 22 August 2012
The background to the orders I made on 22 August 2012 is set out in my reasons for decision in The Commissioner for Consumer Protection v Armstrong.[4] In broad summary, following the expression by the Commissioner of concerns about Ms Armstrong's conduct in advertising and selling puppies, and following the commencement by the Commissioner of proceedings CIV 1840 of 2011 in relation to that conduct, in June 2011 Ms Armstrong signed an enforceable undertaking.
[4] The Commissioner for Consumer Protection v Armstrong [2012] WASC 206.
The terms of the undertaking given by Ms Armstrong were as follows:
I, Fay Marie ARMSTRONG, UNDERTAKE to the COMMISSIONER FOR CONSUMER PROTECTION for the purpose of section 218 of the Australian Consumer Law (WA) that I will not, whether by my servants, agents or otherwise:
1represent, whether expressly or impliedly, that any animal that I sell or offer for sale is in good health, has been vaccinated, or has been wormed, without first obtaining a written report of a suitably qualified veterinarian stating precisely that;
2sell or offer for sale an animal without first obtaining a written report of a suitably qualified veterinarian as to the animal's condition;
3sell or offer for sale an animal without providing to the purchaser a written report of a suitably qualified veterinarian as to the animal's condition;
4sell or offer for sale an animal with parvovirus, hepatitis, distemper, parainfluenza, or bordatellabronciosepta;
5sell or offer for sale an animal without first having that animal tested for and vaccinated against parvovirus, hepatitis, distemper, parainfluenza, or bordatellabronciosepta;
6without limiting any of the above, enter into an agreement for the supply of a dog without obtaining and providing a written report of a suitably qualified veterinarian as to the animal's condition;
7without limiting any of the above, accept payment or other consideration for the supply of an animal without obtaining and providing a written report of [a] suitably qualified veterinarian as to the animal's condition.
In so undertaking I understand that this undertaking is ENFORCEABLE by the Commissioner for Consumer Protection in the Supreme Court of Western Australia, and the sanctions described in section 218 of the Australian Consumer Law (WA) for breach are available.
Earlier in the current proceedings, by originating motion dated 12 April 2012, the Commissioner claimed declarations that Ms Armstrong had breached the enforceable undertaking, permanent injunctions restraining Ms Armstrong, in effect, from engaging in conduct in breach of the enforceable undertaking, and orders for compensation.
On 21 June 2012, I published reasons for decision[5] in which I concluded that:
(1)I was satisfied that Ms Armstrong had breached the enforceable undertaking in the various respects alleged by the Commissioner;
(2)I had doubt about whether any declarations should be made, but invited further submissions on that topic;
(3)injunctions should be granted in terms which in effect required compliance with the enforceable undertaking; and
(4)I would make orders for compensation in the terms sought by the Commissioner.
[5] The Commissioner for Consumer Protection v Armstrong [2012] WASC 206.
Following further submissions, I published further reasons for decision on 22 August 2012.[6]
[6] The Commissioner for Consumer Protection v Armstrong [2012] WASC 206 (S).
The orders
In my reasons for decision of 22 August 2012 I made orders (the Orders) including declarations, injunctions and orders for compensation. Paragraph 3 of the Orders was in the following terms:
The defendant is permanently restrained, whether by her servants, agents, or howsoever otherwise, from:
3.1representing, whether expressly or impliedly, that any animal that sold or offer for sale is in good health, has been vaccinated, or has been wormed, without first obtaining a written report of a qualified veterinarian stating precisely that;
3.2selling or offering for sale an animal without first obtaining a written report of a qualified veterinarian as to the animal's condition;
3.3selling or offer for sale an animal without providing to the purchaser a written report of a qualified veterinarian as to the animal's condition;
3.4selling or offer for sale an animal with parvovirus, hepatitis, distemper, parainfluenza, or bordatellabronciosepta;
3.5selling or offer for sale an animal without first having that animal tested for and vaccinated against parvovirus, hepatitis, distemper, parainfluenza, or bordatellabronciosepta;
3.6without limiting any the above, entering into an agreement for the supply of a dog without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition; and
3.7without limiting any the above, accepting payment or other consideration for the supply of an animal without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition.
The Commissioner's application
By notice of motion dated 19 August 2013, the Commissioner seeks an order that Ms Armstrong be committed for contempt for her conduct in breaching par 3 of the Orders.
On 7 November 2013, Ms Armstrong was personally served with the notice of motion and the affidavits in support.[7]
[7] Affidavit of Mark Riddle sworn 15 November 2013.
On 21 November 2013, the matter came before me for directions. Ms Armstrong appeared at the directions hearing. Directions were made, and it was ordered that there be a further directions hearing on 19 December 2013.
On 19 December 2013, Ms Armstrong did not appear. I granted leave for the Commissioner to amend the notice of motion.
The amended notice of motion seeks an order that:
The defendant be committed for contempt of court for disobedience of the Orders made by his Honour Justice Beech on 22 August 2012 in [these proceedings] in that by selling or offering for sale a puppy to Ms Michelle Brown (the Complainant) on or about 10 November 2012:
1.1Without providing to the Complainant a written report of a suitable qualified veterinarian as to the puppy's condition, the Defendant did knowingly contravene Order 3.3 of the Restraining Orders;
1.2Which was infected with the disease parvovirus, the Defendant did knowingly contravene Order 3.4 of the Restraining Orders;
1.3Entering into an agreement with the Complainant for the supply of a dog without providing the Complainant a written report of a suitably qualified veterinarian as to the animal's condition, the Defendant did knowingly contravene Order 3.6 of the Restraining Orders;
1.4Accepting payment of $450 from the Complainant for the supply of an animal without providing to the Complainant a written report of a suitably qualified veterinarian as to the animal's condition, the Defendant did knowingly contravene Order 3.7 of the Restraining Orders.
In The Commissioner for Consumer Protection v Armstrong [No 2],[8] I found that I was not satisfied beyond reasonable doubt that Ms Armstrong knew that the puppy involved had parvovirus, and consequently was not satisfied that Ms Armstrong had committed a contempt in the respect alleged in par 1.2 of the amended notice of motion.
[8] The Commissioner for Consumer Protection v Armstrong [No 2] [2014] WASC 167.
On the rehearing of the application, the Commissioner did not press allegation 1.2 in the amended notice of motion.[9]
[9] ts 107.
Procedural steps in the application
I do not propose to detail the numerous procedural steps that have occurred in relation to this application. They are set out in detail in earlier decisions.[10]
[10] The Commissioner for Consumer Protection v Armstrong [No 2] [2014] WASC 167 [13] ‑ [18]; The Commissioner for Consumer Protection v Armstrong [No 3] [2014] WASC 285 [3] ‑ [17].
Following my decision to grant leave to reopen the finding of contempt, the matter was listed for hearing on 19 September 2014. For reasons not necessary to detail, Ms Armstrong did not appear on that day, and that hearing did not proceed.
Ultimately, the hearing of the Commissioner's amended notice of motion proceeded on 10 December 2014.
Contempt: general principles
An allegation of contempt is criminal in nature. All elements must be proved beyond reasonable doubt.[11] The onus of proof is on the Commissioner, as the party who makes the allegation of contempt.
[11] Witham v Holloway (1995) 183 CLR 525, 534.
It has often been observed that criminal contempt of court is the only common law criminal offence in Western Australia.[12] However, contempt by disobedience of an order or judgment of the court now has a statutory setting in the Civil Judgments Enforcement Act 2004 (WA).
[12] R v Lovelady; Ex parte Attorney General [1982] WAR 65, 66; Briggs v Lunt [No 4] [2011] WASCA 145 [34].
Under the Civil Judgments Enforcement Act, a person who disobeys a judgment requiring a person to do or not do an act, apart from a money judgment or a judgment for possession, is guilty of a contempt of court: see s 97 and s 98.
The underlying rationale for the exercise of the contempt power is to uphold and protect the effective administration of justice.[13]
[13] Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107; Miller v Eurovox Pty Ltd [2004] VSCA 211 [29]; Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, 313 ‑ 314.
It is necessary to prove that the alleged contemnor knew of the terms of the relevant order, or at least of the substance of the orders.[14] In this case, Ms Armstrong was not served with the formal extracted form of the Orders until after the conduct the subject of this application. That in itself is not fatal to the application, but the Commissioner must satisfy the court beyond reasonable doubt that Ms Armstrong was, as at 10 November 2012, aware of the substance of the Orders.
[14] Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; (2001) 122 A Crim R 166 [1], [53]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [31] ‑ [32]; Deckers Outdoor Corporation Pty Ltd v Farley (No 6) [2010] FCA 391 [147].
The plaintiff's primary case is that the defendant is guilty of criminal contempt. Deliberate or contumacious defiance of a court order constitutes criminal contempt.[15]
[15] Witham v Holloway (530); Australasian Meat Industry Employees' Union v Mudginberri Station (108).
If a breach of an order is a result of 'casual, or accidental and unintentional disobedience' then there is no power to impose a fine.[16]
[16] Witham v Holloway (541); Australasian Meat Industry Employees' Union v Mudginberri Station (109 ‑ 115).
In order to prove contempt by disobedience of an order, it is necessary to show that the disobedience was deliberate. That does not require a specific intention to break the law. What is required is proof that the alleged contemnor was aware of the facts that make the relevant act a breach of the order.[17]
[17] International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201 [43] ‑ [68]; Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 [5].
Proof of contempt must be by admissible evidence. A contempt application is not an interlocutory application, so hearsay evidence is not admissible under O 37.[18]
[18] Briggs v Lunt [No 4] [42].
The Commissioner is bound by her particulars of the alleged contempt.[19]
[19] R v Pearce (1992) 7 WAR 395; Kendall C & Curthoys J, Civil Procedure in Western Australia [55.5.1].
The elements of the contempt
The contempt alleged by the Commissioner requires her to prove the following matters beyond reasonable doubt:
(1)that Ms Armstrong was, as at 10 November 2012, aware of the terms of the Orders, or their substance;
(2)that Ms Armstrong was the person, known as 'Marie', with whom the complainants Mr and Ms Brown dealt;
(3)that 'Marie's' conduct in the course of the sale of a puppy to Mr and Ms Brown contravened the Orders in one or more of the respects alleged by the Commissioner in the amended notice of motion; and
(4)that an inference can be drawn that Ms Armstrong knew that her conduct in the sale of a puppy to Mr and Ms Brown was in breach of the Orders.
The affidavits relied upon by the parties
The Commissioner relies upon the 16 affidavits listed in the schedule of documents relied upon dated 19 September 2014.[20] A number of these affidavits were originally filed in support of the Commissioner's earlier application for a declaration that Ms Armstrong breached her enforceable undertaking of June 2011 and an injunction restraining her. That application was the subject of the decision in The Commissioner for Consumer Protection v Armstrong [2012] WASC 206. As will be seen, the Commissioner relies upon the striking similarity between aspects of Ms Armstrong's conduct in those respects, and the conduct of the seller of the puppy to Mr and Ms Brown.
[20] ts 107, 129.
Ms Armstrong relies on affidavits sworn by her dated 8 December 2014, 8 September 2014, 12 August 2014, 11 August 2014, 5 August 2014 and 20 November 2013.[21]
[21] Exhibits 1A ‑ 1F; ts 122 ‑ 123.
The substance of Ms Armstrong's affidavits
In her affidavits, Ms Armstrong denies that she sold a dog to Mr and Ms Brown. She also gave oral evidence to that effect.[22] That evidence is directly relevant to whether I am satisfied beyond reasonable doubt that Ms Armstrong committed the contempt alleged by the Commissioner. I must weigh Ms Armstrong's evidence in this respect in deciding whether I am so satisfied. Unless I am satisfied beyond reasonable doubt that Ms Armstrong's evidence in this respect is false or unreliable, I cannot be satisfied beyond reasonable doubt of her guilt of the contempt alleged. Even if I were satisfied that I could wholly reject Ms Armstrong's evidence, it would still be necessary for me to consider whether, on all of the evidence led by the Commissioner, I was satisfied beyond reasonable doubt of the guilt of Ms Armstrong of the contempt alleged.[23]
[22] ts 145, 148.
[23] Liberato v The Queen (1985) 159 CLR 507 [11].
Ms Armstrong's affidavits also contain various assertions about the enforceable undertaking she signed in June 2011. In her affidavits, she asserts that:
(1)the enforceable undertaking was brought about by duress on the part of one or more officers of the Department of Commerce;
(2)the undertaking was given in and for the purposes of an earlier Supreme Court action, CIV 1840 of 2011, and those proceedings were subsequently discontinued, so the enforceable undertaking had no continuing effect; and
(3)Ms Armstrong revoked the undertaking in July 2011.
These assertions were reiterated in oral opening submissions,[24] oral evidence,[25] and closing submissions.[26]
[24] ts 107 ‑ 108.
[25] ts 142 ‑ 143, 148.
[26] ts 152, 155, 156 ‑ 157.
None of these assertions is in any way relevant to the question of whether Ms Armstrong committed the contempt alleged by the Commissioner. This contempt application is not an occasion for ventilating an issue about the circumstances in which the enforceable undertaking was signed by Ms Armstrong or about the duration of its efficacy. The enforceable undertaking was overtaken by the Orders. An order of the court is valid unless and until it is set aside, and must be obeyed. Further and in any event, Ms Armstrong's second contention, summarised above, is misconceived. The enforceable undertaking was given in CIV 1840 of 2011. Those proceedings were subsequently discontinued, because the enforceable undertaking constituted the substance of the relief that would otherwise have been sought by the Commissioner in those proceedings. Thus, the discontinuance of those proceedings did not bring to an end the effect of the enforceable undertaking. To the contrary, the enforceable undertaking was objectively intended to have an enduring effect, thus removing the need for other relief in proceedings CIV 1840 of 2011.
Ms Armstrong's affidavits and oral evidence also contain some irrelevant assertions about the conduct of RSPCA (WA) and RSPCA (Victoria). Those assertions have nothing to do with the present proceedings, and no more need be said about them.
Findings
For the reasons that follow, I am satisfied beyond reasonable doubt in respect of each of the four elements set out at [34] above. I will deal with them in turn.
Ms Armstrong's awareness of the substance of the terms of the Orders
Ms Armstrong was not personally served with an extracted copy of the Orders until after the conduct the subject of this application. Nevertheless, for the reasons that follow, I am satisfied that as at 10 November 2012, when the conduct the subject of this application occurred, Ms Armstrong was aware of the terms or substance of the Orders.
It should be noticed that the terms of the Orders substantially mirror the terms of the enforceable undertaking.
The Commissioner's notice of originating motion sought injunctions substantially to the same effect as the Orders. Ms Armstrong was personally served with the notice of originating motion on 29 May 2012.[27]
[27] Affidavit of Stefan Reksmiss sworn 8 June 2012 [10] ‑ [16]; see Commissioner for Consumer Protection v Armstrong [15].
Ms Armstrong collected from the court a letter dated 17 July 2012 enclosing the reasons of 21 June 2012 and enclosing a minute of the orders proposed by the Commissioner, which included, in substance, the Orders. Following this, by letter of 19 July 2012 Ms Armstrong wrote to the court and to the Commissioner in terms which demonstrate that she had read and understood the letter of 17 July 2012. In that letter to the court, Ms Armstrong nominated 18 Adela Place, Spearwood as her address. Ms Armstrong also nominated this address in other correspondence and in court documents.
In cross‑examination on the hearing of this application, Ms Armstrong accepted that she had read the letter of 17 July 2012 and its enclosures.[28]
[28] ts 138 ‑ 139.
On 4 September 2012, the Commissioner's solicitors sent a letter to Ms Armstrong at 18 Adela Place, Spearwood outlining the substance of the Orders and referring to the consequences of breaching the Orders.[29]
[29] Affidavit of Ms La sworn 30 January 2014 [6], KL 4.
On 11 September 2012, an officer of the Commissioner slid copies of documents, including the Orders, underneath the front door of Ms Armstrong's house at 18 Adela Place, Spearwood. Mr Davenport also attached an additional copy of the Orders to the front door with tape. When he returned 35 minutes later, that copy of the Orders had been removed.[30]
[30] Affidavit of Ross Davenport sworn 6 December 2012.
Before turning to the crucial question of the identity of the seller of the puppy, it is convenient to outline the circumstances of the sale of the puppy to Mr and Ms Brown.
The circumstances of the sale to the Browns
In their affidavits, Mr and Ms Brown gave evidence of what occurred when they bought a puppy from the person known as 'Marie'. Nothing in the course of cross‑examination of Mr and Ms Brown gave rise to any reason to doubt the accuracy of the substance of their evidence in these respects, notwithstanding any questions that might arise as to the name of the street at which they met with the person whom identified herself as 'Marie'.[31]
[31] cf ts 148.
I am satisfied beyond reasonable doubt of the following matters.
Ms Brown saw an advertisement in the Quokka newspaper of 8 November 2012. The advertisement offered for sale Labrador puppies for $450. It showed a mobile number: 0447 049 718.
Ms Brown telephoned the number and spoke to a person who identified herself as 'Marie'. After some discussion, they agreed to meet on 10 November 2012. They spoke again that day and arranged to meet that afternoon at a park located on what Mr and Ms Brown referred to as Sussex Street, Fremantle.
Ms Brown went with her husband Mr Brown and her two children. They took $450 cash to pay for the puppy.
Ms Brown asked whether the puppy had been vaccinated. 'Marie' said that it had. When Ms Brown asked whether she had the vet card, 'Marie' said that she did but that it had other pups on it, and that she would photocopy the vet card and post it to Ms Brown. 'Marie' asked Ms Brown to text her address to her.
After further discussion, Ms Brown agreed to buy the puppy for $450. She paid $450 for the puppy and the Browns left.
Three days later, on the evening of Tuesday 13 November 2012, the puppy became sick.
On the Wednesday afternoon, Mr Brown took the puppy to the vet. The vet told Mr Brown that the puppy had parvovirus and that it would cost between $3,000 and $4,000 to treat. That conversation is not evidence that the puppy did in fact have parvovirus, but I am satisfied of that by the evidence of Dr Cindy Matthews.
Mr and Ms Brown decided that they could not afford to pay for the treatment, so the puppy had to be put down.
That evening, there was an exchange by text between Ms Brown and 'Marie'.
No vet card was ever sent to Ms Brown.
The crucial question on this application is whether the Commissioner has proved beyond reasonable doubt that the person identified as 'Marie' is Ms Armstrong.
'Marie' is Ms Armstrong
For the reasons that follow, notwithstanding Ms Armstrong's evidence to the contrary, I am satisfied beyond reasonable doubt that the person identified as 'Marie' is Ms Armstrong.
In coming to that conclusion, I have taken into account that much of the evidence in support of it is in the nature of identification evidence, and special caution is needed in relation to evidence of identity.[32]
[32] See, for example Domican v The Queen (1992) 173 CLR 555, 560 ‑ 564; Winmar v The State of Western Australia [2007] WASCA 244.
Mr and Ms Brown met with 'Marie' on 10 November 2012. On 27 November 2012, Ms Brown saw a news item describing and showing an image of Ms Armstrong. Ms Brown says that the person shown on that news item was the person who identified herself as 'Marie' and sold her a puppy on 10 November 2012.[33] The news item was lengthy - more than two minutes in duration. It included four different sections, each of which showed a clear view of Ms Armstrong, including her face.
[33] Affidavit of Michelle Brown sworn 15 August 2013 [36] ‑ [38].
On 11 April 2013, Ms Brown watched a DVD with four news stories showing images of Ms Armstrong. Ms Brown identifies those images as being the same person who had identified herself as 'Marie'[34]
[34] Supplementary affidavit of Michelle Brown sworn 23 January 2014.
Mr Brown also identifies the same four news items as showing the person who had presented to him as 'Marie' on 10 November 2012, although he was not shown the footage until much later, on 23 January 2014. Because of this, I attribute very little weight to Mr Brown's evidence.
The evidence of Ms La and Ms Stokes satisfies me that the person shown on the four news stories is Ms Armstrong.
By itself, the evidence I have outlined would fall short of satisfying me beyond reasonable doubt as to the identity of 'Marie'. However, there is also circumstantial evidence which, combined with the identification evidence to which I have referred, satisfies me beyond reasonable doubt that 'Marie' was Ms Armstrong.
Marie is Ms Armstrong's middle name. Ms Armstrong said in her evidence that she used her middle name for lots of things and had been called by her middle name when she lived at home.[35]
[35] ts 145, see also ts 146.
There is a striking similarity between the conduct of 'Marie', and the previous conduct of Ms Armstrong the subject of my findings in the proceedings giving rise to the Orders. See, in this respect, The Commissioner for Consumer Protection v Armstrong.[36] Both Ms Armstrong, in her sales the subject of the earlier proceedings, and 'Marie':
(a)advertised puppies for sale in the Quokka;
(b)proposed a meeting in a public place, not at a fixed address;
(c)provided only a mobile phone number as a means of contact;
(d)operated in the southern suburbs of Perth;
(e)sold puppies which were infected with parvovirus; and
(f)spoke in a way that suggested she was knowledgeable about parvovirus.
[36] The Commissioner for Consumer Protection v Armstrong [2012] WASC 206 [21], [28] ‑ [32], [38] ‑ [39], [41] ‑ [42].
To my mind, these circumstances, taken together, combined with the identification evidence of Ms Brown, compel satisfaction beyond reasonable doubt that 'Marie' was Ms Armstrong.
In her oral evidence in re‑examination, Ms Armstrong made a suggestion that there are other people who resemble her and who sell dogs, and that someone may possibly have disguised themselves to look like her.[37] In my view, that latter possibility is no more than speculation. Moreover, it provides no explanation for a person using Ms Armstrong's middle name, which Ms Armstrong uses not infrequently, and selling a dog to Ms Brown in ways strikingly similar to Ms Armstrong's conduct of earlier sales.
[37] ts 149.
In my view, the only reasonable conclusion is that Ms Armstrong was 'Marie' who sold the puppy to Mr and Ms Brown. No alternative reasonable inference is available.
Ms Armstrong's conduct breached the Orders
I am satisfied that, by her conduct of the sale of the puppy to Mr and Ms Brown, Ms Armstrong breached the Orders in the following respects, being the respects alleged in pars 1.1, 1.3 and 1.4 of the amended notice of motion.
First, par 3.3 of the Orders prohibited Ms Armstrong from selling or offering for sale an animal without providing to the purchaser a written report of a qualified veterinarian as to the animal's condition. Ms Armstrong did not provide a written report before offering the puppy for sale, and selling it.
Secondly, par 3.6 of the Orders restrained Ms Armstrong from entering an agreement for the supply of a dog without first obtaining and providing to the buyer a written report of a qualified veterinarian as to the animal's condition. Ms Armstrong did not provide any written report before she agreed with Mr and Ms Brown to sell the puppy, thereby breaching par 3.6 of the Orders.
Thirdly, par 3.7 of the Orders restrained Ms Armstrong from accepting payment for the supply of an animal without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition. In the circumstances outlined above, in accepting payment of $450 from Ms Brown, Ms Armstrong breached this paragraph of the Orders.
Ms Armstrong's knowledge
In the absence of evidence from Ms Armstrong about her state of mind, a finding as to her knowledge involves the drawing of an inference. Given the criminal nature of these proceedings, the court can only draw an inference adverse to Ms Armstrong if it is the only reasonable inference.[38]
[38] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.
The gravamen of the three species of breaching conduct I have found all involve dealing with the purchaser, by selling or offering to sell, by entering into an agreement, and by accepting payment, without providing a written report as to the animal's condition. I am satisfied, as a matter of common sense, that Ms Armstrong knew that that was what she was doing. In other words, Ms Armstrong knew that she was selling the animal, entering into an agreement to supply it, and accepting payment, and knew that she was not providing to the purchaser any written report of a qualified veterinarian. No other inference is reasonably available.
There are some indications in Ms Armstrong's oral evidence and in her submissions, that in 2012 she did not accept the findings I made, and the Orders made as a result, and that she still does not.[39] That may provide some explanation for Ms Armstrong's conduct in contravening the Orders. In any event, it is not necessary to identify the reasons for Ms Armstrong's contravening conduct. The question is whether I am satisfied beyond reasonable doubt that she engaged in the conduct alleged. For the reasons given, I am so satisfied.
[39] See, for example, ts 140 ‑ 141.
Conclusion
For these reasons, I am satisfied beyond reasonable doubt that Ms Armstrong committed a contempt of court by disobeying par 3 of the Orders in the three respects referred to above, namely in the respects alleged in pars 1.1, 1.3 and 1.4 of the Commissioner's amended notice of motion.
I will hear further from the parties in relation to the question of punishment.
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