Commissioner for Fair Trading v Rixon (No 3) - [2014] NSWSC 1279

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Commissioner for Fair Trading v Rixon (No.3) [2014] NSWSC 1279
Hearing dates: 16/05/14, 26/06/14, 29/08/2014
Decision date: 19 September 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) I impose on Mr Rixon a term of imprisonment for a period of 18 months to commence on 19 September 2014 and to conclude on 18 March 2016.
(2) I suspend the term of imprisonment upon the following conditions:
(a)that throughout the period of the term, Mr Rixon is of good behaviour;
(b)that throughout the period of the term, Mr Rixon complies with the orders of the Court made on 17 April 2013;
(c)that throughout the period of the term, Mr Rixon undertakes 300 hours of community service, which must be completed in accordance with the directions of, and to the satisfaction of, Hornsby Community Corrections Office.
(3) I direct that Mr Rixon is to report to the Hornsby Community Corrections Office at 61 Hunter Street, Hornsby no later Wednesday 24 September 2014.
(4) I order Mr Rixon to pay the plaintiff's costs of the proceedings on an indemnity basis.

Catchwords: CONTEMPT OF COURT - sentencing - summary jurisdiction -breach of consent orders preventing conduct with respect to residential building work - serious example of contempt - deliberate and intentional conduct with knowledge of Court's orders - prior criminal history - apology and repayment of monies; whether represents genuine contrition - fine; whether appropriate - term of imprisonment; whether appropriate - no notice pursuant to Uniform Civil Procedure Rules, r 40.7 - no informal warning - discretion to impose term of imprisonment; whether appropriate to exercise - need for specific deterrence - suspended term of imprisonment - community service order
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
Home Building Act 1989
Uniform Civil Procedure Rules 2005
Cases Cited: Attorney-General for NSW v Whiley (1993) 31 NSWLR 314
Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Commissioner for Fair Trading v Rixon (No.2) [2014] NSWSC 431
Commonwealth of Australia v Salvato (No.4) [2013] NSWSC 321
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Narkarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
NRC Australia Pty Ltd v The Credit Connection Pty Ltd [2005] NSWSC 1118
Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Category: Principal judgment
Parties: Commissioner of Fair Trading (P)
Matthew Geoffrey Rixon (D)
Representation: Counsel:
G Sarginson (P)
A R Martin (D)
Solicitors:
C Dreis (P)
A Martin (D)

File Number(s): 2012/382762

Judgment

On 9 May 2014, I found that the defendant, Mr Matthew Rixon, was guilty of contempt of court in that by his conduct in the periods, and with respect to each of the five properties specified in the Statement of Charge, he was in breach…

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.

Keep reading for free

Create a free CaseChat account to read Commissioner for Fair Trading v Rixon (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NSWSC 1279
Decision Date: 19 September 2014

CaseChat Overview and Summary

The appellant was found guilty of contempt of court for breaching consent orders that prohibited him from engaging in residential building work. The matter was heard in the Supreme Court of New South Wales. The appellant argued that a fine and community service order were sufficient, while the respondent submitted that a term of imprisonment, either fully served or suspended, was necessary to ensure specific deterrence and to uphold the authority of the court.

The court considered whether the appellant's conduct represented a serious example of contempt, whether the imposition of a term of imprisonment was appropriate, and whether the lack of notice and informal warning affected the court's discretion. The court found that the appellant's conduct was deliberate and intentional, with knowledge of the Court's orders, and that there was a need for specific deterrence. Despite the lack of notice and informal warning, the court exercised its discretion to impose a term of imprisonment, which was ultimately suspended, along with a community service order.

The court ordered that the appellant pay a fine and perform community service, with the term of imprisonment being suspended. The court held that the circumstances justified the imposition of a term of imprisonment, but that the suspension of the term, coupled with the fine and community service order, was an appropriate outcome given the appellant's apology and repayment of monies, which the court found to represent genuine contrition. The court emphasised the importance of upholding the authority of the court and ensuring specific deterrence in cases of contempt.

Orders