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
PDF Version

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…

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: [2006] WASC 202 (S)
Decision Date: 23 JUNE 2006

CaseChat Overview and Summary

The Commissioner for Fair Trading filed proceedings against Holz, seeking a penalty for contempt of court. The dispute arose from Holz's breach of a court-imposed injunction, which had been put in place to prevent the dissemination of misleading information about a product. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was the appropriate penalty to be imposed on Holz for his contempt, specifically whether the penalty should be a fine, imprisonment, or both.

In assessing the penalty, the court considered the nature of the contempt, the seriousness of the breach, and the need for deterrence and punishment. The court noted that Holz's actions were deliberate and had caused significant harm by spreading misleading information to the public. The court held that the principles of punishment for contempt of court require a penalty that is tailored to the specific circumstances of the case. While Holz's breach was serious, the court decided that a suspended sentence would be appropriate, taking into account factors such as Holz's remorse and the fact that this was his first offence. The court imposed a 28-day imprisonment term, suspended for 12 months, with conditions that Holz comply with the injunction and complete community service. This approach aimed to achieve both punishment and deterrence, while also providing Holz with an opportunity to demonstrate rehabilitation.

Orders

Orders of the court

28 days' imprisonment suspended for 12 months

Suspended sentence conditional on compliance with injunction and on completing

community service

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.