Commissioner for Fair Trading v Holz

[2006] WASC 202 (S)

COMMISSIONER FOR FAIR TRADING -v- HOLZ & ANOR [2006] WASC 202 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 202 (S)
Case No:	CIV:2765/2002	Heard:	23 JUNE 2006
Coram:	TEMPLEMAN J	Delivered:	23/06/06
Supplementary Delivered:	3/07/06
No of pages:	6	Judgment Part:	1 of 1
Result:	28 days' imprisonment suspended for 12 months Suspended sentence conditional on compliance with injunction and on completing community service
Category:	B
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Parties:	COMMISSIONER FOR FAIR TRADING RENEE-PETER HOLZ KATHARINA ISOBELL HOLZ
Catchwords:	Contempt of court Penalty Applying general principles of punishment Turns on own facts
Legislation:	Nil
Case References:	Nil Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Australian Competition and Consumer Commission v Hughes [2001] ATPR 41­807 Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2003) 133 FCR 279 Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404 Castlecity Pty Ltd v New Vintage Nominees Pty Ltd [2003] WASCA 30 Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd (2003) 196 ALR 350 Kennedy v Lovell [2002] WASCA 226 Ryan v Wright (No 2) [2004] NSWSC 1019

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : COMMISSIONER FOR FAIR TRADING -v- HOLZ & ANOR [2006] WASC 202 (S) CORAM : TEMPLEMAN J HEARD : 23 JUNE 2006 DELIVERED : 23 JUNE 2006 SUPPLEMENTARY
DECISION : 3 JULY 2006 FILE NO/S : CIV 2765 of 2002 MATTER : Application for an injunction under s 74 and s 76 of the Fair Trading Act 1987 (WA) BETWEEN : COMMISSIONER FOR FAIR TRADING

Plaintiff

AND

RENEE-PETER HOLZ
First Defendant

KATHARINA ISOBELL HOLZ
Second Defendant

Catchwords:

Contempt of court - Penalty - Applying general principles of punishment - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

28 days' imprisonment suspended for 12 months

Suspended sentence conditional on compliance with injunction and on completing community service

Category: B

Representation:

Counsel:

Plaintiff : Mr A R Beech SC & Mr S L Dworcan
First Defendant : Mr R G S Harrison
Second Defendant : Mr R G S Harrison

Solicitors:

Plaintiff : Department of Consumer & Employment Protection
First Defendant : Tottle Partners
Second Defendant : Tottle Partners

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Competition and Consumer Commission v Hughes [2001] ATPR 41­807
Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2003) 133 FCR 279

(Page 3)

Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404
Castlecity Pty Ltd v New Vintage Nominees Pty Ltd [2003] WASCA 30
Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd (2003) 196 ALR 350
Kennedy v Lovell [2002] WASCA 226
Ryan v Wright (No 2) [2004] NSWSC 1019

(Page 4)

1 TEMPLEMAN J: On 3 July 2006 Mrs Holz was sentenced. What follows is an edited transcript of my sentencing remarks:

"Mrs Holz, would you come to the front of the Court, please. You can stand by Mr Harrison, so that I can talk to you. I have to impose a punishment on you, Mrs Holz, for your contempt of the Court in failing to comply with the undertakings which you gave to Le Miere J in June and again in August of last year. I have already given my reasons for holding that you were in contempt of Court and, indeed, your contempt was admitted.

What was in issue was the circumstances in which that contempt was committed and I have given reasons on the previous occasion when we were here for my conclusion that there was a deliberate contempt on two occasions, on 21 and 26 August of last year when you handed out business cards containing words which you were prohibited from using by the undertaking.

I appreciate that you gave an apology but the apology carried no weight with me because it was based on an entirely false premise. That is why it does not in any way purge the contempt which I found that you committed.

You have to understand that there is a substantial public interest in ensuring that orders of Court and undertakings given to the Court are complied with. It is absolutely essential for the wellbeing of society that the authority of the Court be upheld and that will, where there has been a contempt, necessitate an appropriate punishment.

There is no doubt that the jurisdiction is one which involves a punishment of the contemnor; and that punishment will very frequently be significant and certainly can involve imprisonment until the contempt is purged. In imposing a punishment, I have to have regard to the usual principles which apply when Courts impose punishment on people and they include not only an appropriate punishment but rehabilitation to ensure that the person does not again commit that kind of offence.

There has to be a deterrent, that is, something which will deter you from any further conduct of this kind and something which acts as a general deterrent so that if there is anybody else in the

(Page 5)

community who is minded to disobey Court orders, then they understand that appropriate penalties will be visited on them.

In my view, having regard to the circumstances of the contempt, which I referred to in my findings, imprisonment is an appropriate penalty and a period of 28 days' imprisonment is, in my view, appropriate. I am willing to suspend that period of imprisonment for 12 months because I think and I hope that the threat of imprisonment will weigh heavily with you so that you will understand that you must comply with the orders made by Le Miere J on 15 September last year, and understand that if you do not comply with them then there will be no question about your going to prison for 28 days and any further punishment which might be warranted if you were to breach that order.

I have come to the conclusion that a fine would be inappropriate because I can see from the records that you have not paid fines on previous occasions and you told me that you were unemployed, although I gather you now have prospects of employment.

I think, therefore, that it is appropriate to impose a period of community service and in my view 60 hours is appropriate. That to be undertaken over a four-month period which will give you an opportunity to continue your new employment and will enable you to do that work over weekend periods. You must do that at the direction of a Community Corrections Officer and you must abide by directions which are given by that Community Corrections Officer as to the nature of the work and the time during which you are required to do it.

You have to understand that the suspension of the imprisonment is conditional upon your not only complying with the order made by Le Miere J but also complying with your obligation which you now have to undertake the community service as directed by a Community Corrections Officer. Do you understand that?

Then I will impose that penalty. There will be a sentence of 28 days' imprisonment suspended for 12 months on condition that you comply with Le Miere J's order of 15 September and that you carry out 60 hours of community service over a

(Page 6)

four-month period as directed by a Community Corrections Officer. I will also order that you pay the costs of this application on a solicitor and own client basis."