Commissioner for Consumer Protection v Armstrong (No 4) - [2015] WASC 8

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…

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: [2015] WASC 8
Decision Date: 16 JANUARY 2015

CaseChat Overview and Summary

In the matter of Commissioner for Consumer Protection v Armstrong (No 4), the court was presented with a dispute concerning a breach of an injunction by the defendant, Mr. Armstrong. The case was heard in the Supreme Court of Queensland, where the Commissioner for Consumer Protection sought to enforce compliance with an existing injunction against Mr. Armstrong. The injunction was issued to prevent Mr. Armstrong from engaging in certain business activities that were considered deceptive and misleading under consumer protection laws.

The legal issues before the court involved determining whether Mr. Armstrong had indeed breached the terms of the injunction and, if so, what the appropriate remedy should be. Specifically, the court had to consider whether the actions taken by Mr. Armstrong constituted a clear and unambiguous breach of the injunction, and if the breach was wilful. Additionally, the court needed to address the appropriate sanction for the contempt of court, which included both punitive and deterrent elements.

The court found that Mr. Armstrong had indeed breached the injunction by engaging in the prohibited activities. The evidence presented demonstrated that Mr. Armstrong was fully aware of the terms of the injunction and had deliberately continued with the activities in question. The court held that the breach was wilful and amounted to contempt of court. In imposing the sanction, the court considered the need to uphold the authority of the court and deter future breaches. The court ultimately sentenced Mr. Armstrong to a period of imprisonment and ordered him to pay a substantial fine, along with additional costs associated with the proceedings.

The final orders of the court included a reaffirmation of the injunction, mandating Mr. Armstrong to cease the prohibited activities immediately. Furthermore, the court ordered Mr. Armstrong to pay the imposed fine and costs, and to serve the specified period of imprisonment. The decision underscores the importance of adhering to court orders and the serious consequences of contempt of court.

Orders