Commonwealth Bank of Australia v Campbell (penalty)
[2025] VSC 306
•3 June 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2024 00381
BETWEEN:
| COMMONWEALTH BANK OF AUSTRALIA (ABN 48 123 123 124) | Plaintiff |
| and | |
| ALEXANDER ROBERT CAMPBELL | Defendant |
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JUDGE: | Matthews J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 May 2025 |
DATE OF RULING: | 3 June 2025 |
CASE MAY BE CITED AS: | Commonwealth Bank of Australia v Campbell (penalty) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 306 |
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CONTEMPT – Where defendant failed to comply with court judgment to pay debt or deliver up goods – Defendant’s contempt proven – Penalty – Belated purging of contempt – Fine imposed - Legal Services Board v Forster [2012] VSC 633 – Hera v Bisognin (No 2) [2019] VSC 625 – Victorian Legal Services Board v Jensen [2022] VSC 603 – Zhang v Shi (No 6) [2022] VSC 271 – Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 3) [2019] NSWSC 511.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr X Kerlin, solicitor | HWL Ebsworth |
| For the Defendant | In person |
HER HONOUR:
Introduction
On 7 August 2024, the Plaintiff filed a summons for committal against the Defendant for failure to comply with a default judgment for debt and possession made by this Honourable Court on 8 March 2024 (Summons).
On 1 April 2025, I found the contempt charge against the Defendant proven. I made orders on that day (Contempt Orders) which, among other things, provided that the Defendant:
is convicted of contempt of court in that, in breach of the Default Judgment for Debt and Possession made by this Honourable Court on 8 March 2024, he did not:
(a) either:
(i)deliver to the Plaintiff at Slattery’s Auction House, 41-45 Hydrive Close, Dandenong South Victoria 3175, the Goods referred to in paragraph 4(a) in the Statement of Claim as the 2020 CLAAS 360FC Profil serial number F7102064 and the 2020 CLAAS Disco 9200C Autowather serial number F6501651; or
(ii)pay the Plaintiff the sum of $143,404.98 in accordance with paragraph 13 of the Statement of Claim together with interest of $1,204.56
(b)pay the Plaintiff’s costs of $5,737.60,
within 14 days after service of a copy of the Default Judgment for Debt and Possession or at all.
My reasons for finding the contempt charge proven and for making the Contempt Orders were subsequently published on 8 April 2025 in Commonwealth Bank of Australia v Campbell.[1]
[1][2025] VSC 175 (Contempt Reasons).
The background of this proceeding and details of the contempt are set out in some detail in the Contempt Reasons. Familiarity with those reasons is assumed, and defined terms in this ruling have the same meaning as stated in the Contempt Reasons unless otherwise stated.
Having found the contempt proven, I deferred the consideration of the penalty to be imposed to a future date, primarily to afford the Defendant an opportunity to adduce evidence and make submissions. The Contempt Orders therefore included the following procedural orders:
(a)The proceeding be listed for hearing on penalty at 10:30am on 30 April 2025.
(b)The Plaintiff to file and serve an outline of written submissions in respect of the penalty to be imposed by 4pm on 11 April 2025.
(c)The Defendant to file and serve any affidavits on which he seeks to rely in respect of the penalty to be imposed by 4pm on 23 April 2025.
(d)The Plaintiff to file and serve any affidavits in reply by 4pm on 28 April 2025.
The Plaintiff filed an outline of written submissions regarding penalty on 11 April 2025 (Plaintiff’s Outline on Penalty). The Defendant did not file any affidavits by the deadline contained in the Contempt Orders, or by the hearing listed for 30 April 2025. While the Contempt Orders did not require the Defendant filing a written outline, as I did not consider it appropriate to make that mandatory, there was nothing to stop him from doing so. The Defendant did not file a written outline of submissions.
When the proceeding was called for the penalty hearing on 30 April 2025, the Defendant sought an adjournment, on the basis that he had obtained a lawyer but that lawyer was not able to appear in Court on that date as he had another commitment. There had been no prior notice of the adjournment application to the Plaintiff or to the Court. The Plaintiff opposed the application. For reasons given at the hearing, I granted an adjournment and fixed the penalty hearing for 21 May 2025 at 10:30am. I also made orders extending the date for the Defendant to file any affidavits or submissions he wished to rely upon to 16 May 2025, and for the Plaintiff to file any affidavits in response by noon on 20 May 2025.
This brings me to the final penalty hearing on 21 May 2025.
At the commencement of the hearing, the Plaintiff’s solicitor informed the Court that he had received instructions that the Goods had been delivered up to the nominated location the day before, and that the Plaintiff had confirmed that these were indeed the Goods specified in the Judgment. The Plaintiff accepted that this meant that the Defendant had purged his contempt.
In addition to the material it relied on at the hearing on 1 April 2025,[2] the Plaintiff also relied on an affidavit from Brian Xavier Kerlin sworn 29 April 2025 (Third Kerlin Affidavit), as well as the Plaintiff’s Outline on Penalty. Oral submissions were made by the Plaintiff’s solicitor at the hearing on 21 May 2025.
[2]These materials are listed at Contempt Reasons, [4]-[5].
The Defendant was not legally represented but he appeared and made oral submissions to the Court. He had also filed a two-page affidavit at 3:07pm on the afternoon before the hearing (Defendant’s Affidavit), which he had not served on the Plaintiff’s solicitors. The Court provided a copy of the Defendant’s Affidavit to the Plaintiff’s solicitor and gave him an opportunity to read it before proceeding with the hearing.
At the conclusion of the hearing, I reserved my ruling in respect of penalty.
For the reasons set out below, I have determined that the appropriate penalty is to impose a fine of $5,000. Had the Defendant not purged his contempt, I would have imposed a term of imprisonment of 60 days, stayed for 14 days to allow him a final chance to purge the contempt.
Applicable law and principles
In the Contempt Reasons, I cited the following passages from Legal Services Board v Forster (No 2)[3] which are relevant to the question of whether the contempt is a criminal contempt or a civil one:
(43)It is established law that an intentional failure to comply with a judgment or order of a court requiring a person to abstain from doing something constitutes a contempt of court.[4] Furthermore, it is a contempt of court where a person’s intentional conduct has a tendency to interfere with the course of justice.[5]
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(46)In Witham v Holloway,[6] the High Court concluded that as all proceedings for contempt, whether for civil or criminal contempt, must realistically be seen as criminal in nature, all charges of contempt must be proved beyond reasonable doubt.
[3][2012] VSC 633 (Forster), [43], [46].
[4]Chan v Chen (No 2) [2007] VSC 24, [21]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, [26].
[5]Principal Registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 506, [14]-[20], [49], [62]‑[63]; Brown v Putnam (1975) 6 ALR 307; Re Goldman [1968] 3 NSWR 325, 327-329.
[6](1995) 183 CLR 525.
The following passages from Hera Project Pty Ltd v Bisognin (No 2)[7] are also instructive:
[7][2019] VSC 625, [10]-[11] (Hera v Bisognin (No 2)) (citations omitted).
While it is generally accepted that disobedience of a court order will usually be civil contempt, it may be a criminal contempt where:
(a) the contempt is contumacious; or
(b) the proceedings serve a punitive purpose of punishing a past breach, rather than a remedial purpose of coercing obedience with the order.
The former focuses on the nature of the contempt, the latter on the purpose of the proceedings.
A deliberate act or omission in breach of a court order will ordinarily constitute wilful disobedience, unless the contemnor is able to show by way of exculpation that the default was casual, accidental or unintentional. A wilful breach may further be considered contumacious where, for example:
(a)the contemnor knows the breach is prohibited and has no reasonable belief that it can be excused;
(b)the breach involves perverse obstinate resistance to authority; or
(c) there is a direct intention to disobey the order.
Rule 75.11 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) relevantly provides as follows in respect of punishment for contempt:
(1)Where the respondent is a natural person, the Court may punish for contempt by committal to prison or fine or both.
…
(3)When the Court imposes a fine, it may commit, or further commit, the respondent to prison until the fine is paid.
(4)The Court may make an order for punishment on terms, including a suspension of punishment.
Insofar as penalty is concerned, the following extracts from Victorian Legal Services Board v Jensen[8] are relevant:
20 Where the breach of an order is casual, accidental or intentional, the court may exercise its discretion to impose no penalty. Where a contempt is considered criminal, a court may record a formal conviction and is more likely to impose a severe penalty, including imprisonment. A sentence of imprisonment is available in cases of civil contempt, but it is rarely considered appropriate. The central consideration in either case is the importance of upholding the effective administration of justice.
21 The principal aims of sentencing in contempt include specific deterrence, general deterrence and denunciation. The relevant principles include the nature and circumstances of the contempt; the actual consequences of the contempt; the effect of the contempt on the administration of justice; the contemnor’s personal circumstances, antecedents and financial means; the contemnor’s culpability; the contemnor’s reasons for his conduct; the need to deter the contemnor from repeating the contempt; and whether the contemnor has exhibited general contrition and made a full and ample apology.
22 Each case is to be determined on its own facts. The character of the contemnor, his financial means and the absence or presence of a prior conviction for contempt may all be relevant.
Submissions
[8][2022] VSC 603, [20]-[22] (Jensen) (citations omitted). See also Hera v Bisognin (No 2) at [30] and the cases cited therein.
The Plaintiff’s submissions
The Plaintiff submits that the Defendant’s contempt was contumacious in that:
(a)he knew his continued failure to comply with the Judgment meant that he was in breach of a court order;
(b)he made no attempt to resolve the Judgment with the Plaintiff, save for in October and November 2024 when the Settlement Agreement was reached, with which he subsequently failed to comply, until he delivered up the Goods on 20 May 2025; and
(c)he failed to obtain independent legal advice or engage with the Court’s self-represented litigants coordinator.
The Plaintiff submits that the Defendant’s conduct has also involved perverse obstinate resistance to the Court’s authority, as he:
(a)had been in breach of the Judgment since 13 May 2024, being 14 days after it was personally served on him on 29 April 2024, until 20 May 2025;
(b)had failed until 20 May 2025 to submit any evidence to the Court;
(c)had failed until very recently to obtain independent legal advice; and
(d)had failed to explain, other than the brief statement in the Defendant’s Affidavit, why he had not complied with the Judgment or engaged with the Court’s self-represented litigants coordinator.
The Plaintiff further submits that until the day before the final hearing, the Defendant had not provided any submissions or evidence in respect of his conduct. In particular, the Plaintiff says that the Defendant:
(a)failed to attend the hearing on 30 August 2024;
(b)informed the Court at the hearing on 20 September 2024 that he was no longer in possession of the Goods and that he thought they had already been repossessed by the Plaintiff’s agent, a submission which was entirely inconsistent with the purpose of the proceeding;
(c)breached the Settlement Agreement by only making part payment to the Plaintiff;
(d)informed the Plaintiff on 31 March 2025 and the Court on 1 April 2025 that he had ‘found’ the Goods and had been in discussion with a proposed purchaser. Notwithstanding that he had found the Goods, he did not contact the Plaintiff after that date to progress either delivering up the Goods or paying the amount required under the Judgment, until the Goods were delivered up on 20 May 2025;
(e)engaged in a pattern of behaviour of ignoring calls, voice messages and emails from the Plaintiff, or waiting until the last minute to respond, which behaviour was intentional and demonstrates a lack of regard for the Court’s orders;
(f)has not filed any evidence in respect of his financial means (other than a brief statement in the Defendant’s Affidavit), although he told the Court he was unable to work for 16 to 18 weeks following his involvement in a major car accident in February 2024, and it appears he was not able to fully comply with the Settlement Agreement as he told the Court he had not paid the balance as he had been unable to sell a tractor; and
(g)had not evidenced any contrition or apologised for his contempt or taken any steps to purge the contempt until 20 May 2025.
The Plaintiff also says that it is not aware as to any prior convictions of the Defendant.
The Plaintiff says that it is not permitted to make submissions about the appropriate sentencing range.[9] However, in determining what penalty to impose, the Plaintiff submits that the Court should have regard to current sentencing practices[10] on the basis that:
(a)the fact that the offending is deliberate, voluntary and continuing such that the only reasonable conclusion to draw is that the Defendant has, and continued to have until 20 May, an intention to disobey the Court. Therefore, this matter is at the most serious end of the scale; and
(b)the requirement for the Court to have regard to general deterrence in light of the Defendant’s flagrant disregard of the Judgment until 20 May and the orders made in this proceeding, and balancing that with the requirement to maintain the integrity of the judicial process in the administration of justice.[11]
[9]Relying on Barbaro v The Queen [2014] HCA 2.
[10]Relying on s 5(2)(b) of the Sentencing Act 1991 (Vic).
[11]Relying on Contempt Reasons, [50].
The Plaintiff pointed out that it was not in a position to verify any of the matters in the Defendant’s Affidavit, particularly the matter referred to in the final sentence of paragraph 2 of that affidavit, as it had not been served with the affidavit or seen it until after the hearing had commenced.
Finally, the Plaintiff seeks an order that the Defendant, in addition to any penalty imposed, pay the Plaintiff’s costs of the proceeding on an indemnity basis given the nature of his conduct in committing the contempt and the way he has conducted himself during the hearings of the Summons which the Court has already found was an intentional pattern of behaviour.[12]
[12]In this regard, the Plaintiff refers to the Defendant’s conduct as described in paragraphs 15 to 17, 19, 21, 22, 24, 41, 43, 44, 46 and 49 of the Contempt Reasons.
The Defendant’s submissions
It is convenient here to set out the substantive aspects of the Defendant’s Affidavit:
2.My reason for not delivering the machinery to the plaintiff was that I was hoping to arrange a sale of the machinery. The machines were in the possession of [Mr P].[13] [Mr P] had agreed to purchase them for $170,000 which was more than the amount owed to the plaintiff. [Mr P] had finance lined up but needed a payout figure from the plaintiff. I contacted the plaintiff and requested this but received no reply.
3.When I showed the Court Orders to my solicitor on the 15th of May he made it clear to me that this was a Court Order and that I must return the machinery to the plaintiff and worry about potential purchasers after that.
4.I have arranged for [Mr P] to return the machinery to Slatery [sic] Auction House Dandenong and they should be there today.
5.I apologise for not complying with the previous Court Orders but didn’t realise how serious the situation was.
6.I am 35 years of age and are [sic] married with a 4 year old daughter. I work as a self employed Agricultural Contractor. Since covid I have been under extreme financial duress.
7.I have never been involved in Court proceedings in any nature other than a matter relating to an unregistered motor vehicle.
[13]I have omitted the name of the person referred to in the Defendant’s Affidavit, for reasons of privacy.
Due to the matter referred to in paragraph 23 above, I place no weight on the final sentence of paragraph 2 of the Defendant’s Affidavit.
In addition to his affidavit, the Defendant made short oral submissions at the hearing. He submitted that:
(a)he had been trying to organise freight for the Goods to be delivered, which had been difficult on a minimal budget, and he wanted the Goods to be in good condition when they were delivered;
(b)his only intention had been to get it resolved, there was nothing in it for him to not have it resolved;
(c)he has taken the matter seriously, as he has attended all hearings he had to attend after 20 September 2024; and
(d)his household is very dependent on two incomes and if he was not working (for example, if he was imprisoned) it would be very difficult for his family, as they would not be able to pay the mortgage.
Consideration
Nature of the contempt: civil or criminal
I have already found, as set out in paragraph 54 of the Contempt Reasons, that the Defendant’s breach of the Judgment was not casual or accidental but rather was deliberate and voluntary. This was, in part, the basis for my finding that the contempt charge was proven. I also found it proven to the requisite standard, being beyond reasonable doubt.[14]
[14]This is the applicable standard, whether the contempt be civil or criminal: Forster, [46], citing Witham v Holloway (1995) 183 CLR 525.
As noted above, there was no evidence before me at the time of the hearing on 1 April 2025 from the Defendant. The Defendant’s failure to comply with the Judgment, the prolonged nature of the Plaintiff’s attempts at enforcement of the Judgment, and the fact that the contempt continued until the day before the penalty hearing illustrates that the Defendant’s conduct remains deliberate and voluntary, and is also wilful. There is still nothing of any sound evidentiary basis advanced to me by way of exculpation to suggest that the contempt was casual, accidental or unintentional. The excuse given, very belatedly, by the Defendant that he had not delivered up the Goods because he was trying to organise for them to be sold, does not excuse his behaviour. His statement that he did not realise how serious the situation was is simply not credible. Even if this was the case when he was initially served with the Judgment and even with the Summons, it is inconceivable to think he remained oblivious to this after having appeared before me on numerous occasions where he was told each time that the matter was very serious and could result in him being sent to prison. Further, he was present in Court on 1 April 2025 when I found the contempt proven and he received a copy of the Contempt Reasons. It belies common sense for him to still not realise how serious his situation was. Put simply, I do not accept this as an explanation for his contempt. For these reasons, the contempt is properly characterised as contumacious and, therefore, criminal. I do not regard the matters referred to by the Plaintiff in paragraph 18(c) above as contributing to the question of whether the Defendant’s contempt was contumacious and I disregard those matters for these purposes.
Having found that the contempt is criminal, there is strictly no need for me to consider other indicators of whether it is a civil or criminal contempt. However, in respect of whether the purpose of the proceeding is punitive or remedial, it is clear that the original purpose of this proceeding was remedial: the Plaintiff was seeking to either be paid its debt or have the Goods delivered up so that it could realise those to recover its debt. Insofar as the purpose of the contempt proceeding is concerned, it seems to me that its purpose was likely both remedial and punitive, however the emphasis in the earlier stages was on achieving compliance. Given my finding that the Defendant’s contempt was contumacious, a purpose of coercing compliance does not detract from the finding that the contempt is criminal. There is still value in attempting to coerce compliance, but if the Defendant continues to flout his obligations and fails to comply with the Judgment, there is utility in punishing such conduct.
Sentencing considerations
The Plaintiff’s Outline on Penalty refers to the Sentencing Act 1991 (Vic) (Sentencing Act). In Zhang v Shi (No 6),[15] Delany J stated that the Sentencing Act:
. . . does not have direct application to penalties for contempt. While that is so, it is nevertheless appropriate to approach sentencing for contempt in a manner that is consistent with the approach adopted in the Sentencing Act.
[15][2022] VSC 271, [48], citations omitted.
When the court is acting under its rules in respect of punishment for contempt, it is not exercising a statutory power or a power to punish for a common law offence.[16] Rather, as Parker J described it in Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 3):[17]
The Court’s power is directed towards achieving compliance with the court’s order or, if that is not possible, to vindicating the authority of the court. An important aspect of this is to discourage the contemnor from committing further contempts. But it is equally, if not more, important that the action that the Court takes in response to the contempt should set an example which will uphold the court’s authority and deter others from disobedience.
[16]Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340.
[17][2019] NSWSC 511, [35] (Reliance (No 3)).
That said, not a great deal turns on this distinction. The clear statement of sentencing considerations for contempt matters referred to in many cases, such as Jensen and Hera v Bisognin (No 2), as set out in paragraph 17 above,[18] are similar to the approach adopted in the Sentencing Act. Below, I address each of the sentencing considerations identified by the authorities.
[18]Citing Jensen, [21]; see also Hera v Bisognin (No 2), [30].
The nature and circumstances of the contempt
I have already outlined the nature and circumstances of the Defendant’s contempt in the Contempt Reasons, and in my consideration above of whether the contempt was civil or criminal.
In circumstances where the Defendant was personally served with the Judgment, where the actions required of him were clearly stated in the Judgment, and where the Judgment contained the Penal Notice such that he was on notice that a failure to deliver up the Goods may result in punishment for contempt of court, the Defendant’s failure to offer any reasonable explanation, on evidence, leads to the inexorable conclusion that the contempt was contumacious. His varying explanations, none of which were fulsome, detailed or on evidence (other than as stated in the Defendant’s Affidavit), mean that there are no mitigating factors or circumstances which have been properly brought to the Court’s attention so as to reasonably explain his continued non-compliance with the order that he deliver up the Goods. In particular, his failure to deliver up the Goods after claiming on 1 April 2025 that he had ‘found’ them until what can only be described as the last minute reflects poorly on the Defendant.
All wilful and contumacious contempts of court are serious, but some are more serious than others. I do not accept the Plaintiff’s submission that the Defendant’s contempt should be regarded as being at the most serious end of the scale. In my view, the Defendant’s contempt in this case is less serious, even prior to his purging of the contempt, than matters such as where the contemnor’s conduct results in a criminal trial being adjourned or puts the community at risk.[19]
[19]Hera v Bisognin (No 2), [35].
Nonetheless, the Defendant’s actions were in deliberate defiance of court orders, and continued to be so until 20 May, thus aggravating the original breach of the Judgment. That the contempt occurred in the context of a commercial case, rather than a criminal one, does not detract from the fact that what occurred here was a wilful defiance of a court order to deliver up the Goods. As was said in Reliance (No 3):[20]
Vindication of the Court’s authority is no less important in a commercial list case, such as this one, than in other proceedings in this Court. The flow of commerce depends upon the fact that in the overwhelming majority of transactions, business people respect each other’s rights, including rights of ownership of property. … [The defendant] must accept that those commercial operations depended ultimately on the existence of a system of justice to determine disputes, and, in doing so, to decide disputed questions of ownership and legal right. As I have said, that system can only function if those within the commercial community accept the decisions of the courts, even when they go against them, and adhere to those decisions, whether they like them or not.
[20]Reliance (No 3), [44].
The actual consequences of the contempt
The Defendant’s contempt has caused significant additional costs to be incurred by the Plaintiff, such as the costs associated with this application. The repeated adjournments have exacerbated this effect. Apart from the adjournments granted as a consequence of the parties entering into the Settlement Agreement, the other adjournments were primarily to give the Defendant more time to put on any material, which he did not do until the day before the final hearing. He sought and was granted an adjournment of the penalty hearing on 30 April 2025 so his newly retained lawyer could attend the hearing. No solicitor filed a notice of appearance on behalf of the Defendant or appeared at the adjourned date of 21 May 2025.
The Defendant’s contempt has also had the effect of squandering Court time and resources; thus undermining the integrity and efficiency of the justice system. Victoria’s court system should be respected as a public service. Responsible use of the Court’s time preserves judicial credibility and ensures fair access to justice for others.
The effect of the contempt on the administration of justice
I agree that the Defendant’s conduct has had a deleterious effect on the continued administration of justice, as it suggests that court orders can be ignored with impunity. Again, the continued failure to deliver up the Goods in the circumstances of this case amplifies rise to this concern.
The Defendant’s personal circumstances, antecedents and financial means
There is no material before me other than the sparse content of the Defendant’s Affidavit and his oral submissions on 21 May 2025 as to the Defendant’s personal and financial circumstances. He has made passing reference to having been unable to work after a motor accident, but has done nothing to provide any substantive evidence as to any personal or financial circumstances which could be advanced in mitigation of the contempt or to lessen the penalty to be imposed. The fact that he failed to make the second payment required under the Settlement Agreement, the reason for which he said was that he had not been able to sell a tractor, suggests that his financial circumstances are at least somewhat constrained. It suggests that he was not able to make the payment without selling an asset. The Defendant’s Affidavit states that he was under ‘extreme financial duress’ since Covid, but provides no detail at all. I am prepared to accept that the Defendant may not be able to readily pay the amount required by the Judgment. However, if he delivered up the Goods he would not have to pay anything like that amount to the Plaintiff. His financial circumstances do not explain or excuse his failure to deliver up the Goods.
I have not been provided with any evidence that the Defendant has any prior convictions or findings of guilt of any kind. Paragraph 7 of the Defendant’s Affidavit does not contain any detail and is unclear as to what the outcome of the other court proceeding was. Nonetheless, I proceed on the basis that he does not have a prior history that adversely affects him in respect of the penalty to be imposed.
The Defendant’s culpability and reasons for his conduct
There has been no substantive evidence to explain the Defendant’s reasons for his conduct. Worse, there has not even been a coherent explanation for it. Different excuses have been proffered at various times, none of which separately or together excuse the Defendant’s conduct. As earlier stated, I do not accept the explanation given in the Defendant’s Affidavit about trying to arrange a sale as a satisfactory one or a justification for his contempt. Further, the proposition that until he showed the Judgment to his solicitor on 15 May he had not realised it was serious is just not believable, for the reasons already stated.
General contrition and apology
In hearings before me, the Defendant appears to be contrite, in that he seems to regret the position he finds himself in. He presents as a rather passive participant in his own misfortune. In his affidavit, the Defendant expressly apologised for his non-compliance.
His participation in the Settlement Agreement and payment of the first instalment suggests that the Defendant recognises that he must comply with the Court’s orders and that he is not being defiant by not doing so. His eventual purging of the contempt also suggests the same thing. I do not accept the Plaintiff’s submission that the Defendant’s conduct involved ‘perverse obstinate resistance to the Court’s authority’. In particular, I do not accept that characterisation for his failure for most of the time to obtain legal advice, engage with the Court’s self-represented litigants coordinator or explain his conduct. It might well have been perverse, in that it was against his best interests, but I do not see it as obstinate or defiant.
On the other hand, it is important that the Defendant failed to purge his contempt until the day before the final penalty hearing. Had he not finally done so, his failure to deliver up the Goods once he had ‘found’ them would have led me to conclude that his continued contempt was a deliberate defiance of the Court’s order that he deliver up the Goods. The explanation he finally gave, on oath, was not a satisfactory one. That he dragged the situation out for as long as he did is consistent with deliberate defiance.
Specific deterrence, general deterrence and denunciation
The Defendant’s conduct has been to the detriment of this Court’s ability to administer justice. There must be a component of the sentence directed to general deterrence and denunciation, to deter others from carrying out similar conduct. A deliberate and continued failure to deliver up the Goods in the circumstances of this case has the tendency to interfere with and obstruct justice.
I also consider that there must be a component of the sentence directed to specific deterrence, in that the facts available to the Court suggest that the Defendant could have delivered up the Goods but had chosen not to do so until the very last minute. It is as if he failed to comply with the Court’s orders until he had no choice but to comply in order to avoid significant punishment, likely a prison sentence. It is important that the Defendant understand the seriousness of his conduct and be deterred from failing to comply with Court orders in future. While the eventual purging of the contempt has a significant effect on the penalty to be imposed, in my view a penalty is still required lest the Defendant (and others in similar situations) think that the overall outcome means that Court orders can be disobeyed and contempt committed, with impunity.
Penalty
Had the Defendant not purged the contempt, the sentencing factors discussed above would have led me to conclude that the Defendant should be sentenced to a period of imprisonment. The Defendant has provided no mitigatory material, for which he has no-one to blame but himself. He had repeated opportunities to do so, but did not. The contents of the belated Defendant’s Affidavit do not expose any matters which I consider to be mitigatory.
A custodial sentence is a penalty of last resort,[21] and should not be imposed where a non-custodial sentence would achieve the purposes for which the sentence is to be imposed.[22] Had the contempt not been purged, then for all the reasons expressed I would not have been satisfied that a non-custodial sentence would achieve those purposes.
[21]Vaysman v Deckers Outdoor Corp Inc (2011) 276 ALR 596, [54].
[22]Hera v Bisognin (No 2), [60].
The Defendant’s contempt was deliberate and contumacious, and criminal in nature. Had he failed to purge the contempt or to give a coherent and satisfactory explanation as to why the Goods had not been delivered up, a prison sentence would have been justified. I would have made orders that he be sentenced to 60 days’ imprisonment, stayed for 14 days to give him a final opportunity to purge the contempt.
However, in light of the Defendant finally purging his contempt, I do not think a period of imprisonment is warranted. While the purging occurred very late in the piece, it did occur. This weighs heavily in the Court’s consideration. That said, the contempt was serious and some penalty is warranted. To do otherwise would not vindicate the Court’s authority.
In Zhang v Shi (No 6),[23] Delany J addressed the difficulties in discerning any pattern in the quantum of fines imposed for contempt of court, referring to some examples. I had my associates do some research on penalties in contempt cases, which revealed significant differences in the level of fines imposed – these ranged from $2,500 to $250,000.[24] Having reviewed those cases, I agree with Delany J that there is no discernible substantive pattern, although I note that the fines at the higher end tended to be imposed on organisations rather than individuals.
[23][2022] VSC 271, [131]-[133].
[24]The cases surveyed were: Yager v Musa [1961] 2 QB 214; Re Barrell Enterprises [1972] 3 All ER 631; Australian Prudential Regulation Authority v Siminton (No 3) (2006) 230 ALR 528; Universal City Studios LLLP v Hoey t/as DVD Kingdom [2007] FCA 806; R v Age Co Ltd [2008] VSC 305; Bovis Lend Lease Pty Ltd v CFMEU (No 2) (2009) FCA 650; ASIC v Matthews [2000] NSWSC 392; Alfred v CFMEU (No 2) (2011) FCA 557; Deputy Commission of Taxation v Gashi (No 3) [2011] VSC 448; Vaysman v Deckers Outdoor Corp Inc (2011) 276 ALR 596; R v Derryn Hinch [2013] VSC 554; Grocon v CFMEU (No 2) [2014] VSC 134; Paccar Financial Pty Ltd v Menzies & Menzies (No 2) [2015] NSWSC 1622; Menzies v Paccar Financial Pty Ltd (2016) 93 NSWLR 88; R v Witt (No 2) [2016] VSC 142; Clipsal Australia Pty Ltd v ACN 134 468 205 (formerly Clipso Electrical Pty Ltd) (No 5) [2017] FCA 1584; Prothonotary of Supreme Court of New South Wales v Battye [2017] NSWSC 48; R v Sherwani [2017] VSC 147; State of Western Australia v Galati [No 4] [2017] WASC 162; Hera Project Pty Ltd v Bisognin (No 2) [2019] VSC 625; Moira Shire Council v Sidebottom Group Pty Ltd [2019] VSC 569; Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 3) [2019] NSWSC 511; Freeman v Montgomery [2021] QDC 210; NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97; Zhang v Shi (No 6) [2022] VSC 271; BCEG International (Australia) Pty Ltd v Xiao (No 3) [2023] NSWSC 554; eSafety Commissioner v Rotondo (No 3) [2023] FCA 1590; Fahey v Bird (No 2) [2023] VSC 540; Yuan v Huang (No 2) [2023] NSWSC 1618.
While the evidence in this case is incredibly sparse, I accept that the Defendant’s financial position is very modest and likely under some pressure. Taking this into account and balancing it with the seriousness of the contempt, the fact of it having been belatedly purged, and the range of fines imposed in other cases, I have come to the conclusion that a fine of $5,000 is appropriate in this case. While it may seem at the lower end of the range, from the Defendant’s perspective it is a not insignificant amount. In the circumstances of this case, the needs of the administration of justice are met by imposing a fine of this level.
Costs
As pointed out by Champion J in Hera v Bisognin (No 2):[25]
The Court has unfettered discretion to award costs against a contemnor. It is common practice in contempt proceedings, however, for costs to be awarded against the contemnor on an indemnity basis.
[25]Hera v Bisognin (No 2), [61], (citations omitted).
In my view, the circumstances of this case require that the Defendant pay the Plaintiff’s costs of and incidental to the Summons on an indemnity basis. Had he not committed the contempt, the Summons would not have been issued. Had he made any attempt to purge the contempt by delivering up the Goods, or to otherwise satisfy the Plaintiff by adhering to the Settlement Agreement, it would not have been necessary to continue with the contempt proceedings.
Conclusion
For the reasons set out above, I will make orders that the Defendant is adjudged guilty of contempt of court and that he be convicted and fined $5,000.
I will also make orders that he pay the Plaintiff’s costs of and incidental to the Summons on an indemnity basis.
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