FEDERAL COURT OF AUSTRALIA
eSafety Commissioner v Rotondo (No 3) [2023] FCA 1590
File number: QUD 451 of 2023 Judgment of: DERRINGTON J Date of judgment: 6 December 2023 Date of publication of reasons: 13 December 2023 Catchwords: CONTEMPT OF COURT – civil contempt – penalties – where respondent acknowledged liability for contempt having disobeyed orders of the Federal Court of Australia – orders previously made for respondent to remove material from, and to refrain from posting material to, the internet in accordance with the Online Safety Act 2021 (Cth) – subsequent co-operation with eSafety Commissioner to cause offending material to be removed – applicable principles regarding the imposition of penalties for contempt Legislation: Online Safety Act 2021 (Cth)
Regulatory Powers (Standard Provisions) Act 2014 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115
Australian Securities and Investments Commission v One Tech Media Limited (No 4) [2018] FCA 1533
eSafety Commissioner v Rotondo [2023] FCA 1296
Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90
Tax Practitioners Board v Hacker (No 4) [2021] FCA 940
Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 54 Date of hearing: 6 December 2023 Counsel for the Applicant: Mr M McKechnie Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: The Respondent appeared in person ORDERS
QUD 451 of 2023 BETWEEN: ESAFETY COMMISSIONER
Applicant
AND: ANTHONY ROTONDO AKA ANTONIO ROTONDO
Respondent
ORDER MADE BY:
DERRINGTON J
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.In respect of charge 1 of the statement of charge issued by Justice Rangiah on 27 October 2023, the respondent, Anthony Rotondo, is to pay to the Commonwealth of Australia a fine of $5,000.00;
2.In respect of charge 2 of the statement of charge issued by Justice Rangiah on 27 October 2023, the respondent, Anthony Rotondo, is to pay to the Commonwealth of Australia a fine of $10,000.00; and
3.In respect of charge 3 of the statement of charge issued by Justice Rangiah on 27 October 2023, the respondent, Anthony Rotondo, is to pay to the Commonwealth of Australia a fine of $10,000.00.
4.The respondent, Anthony Rotondo, is to pay the applicant’s costs of and incidental to the contempt proceedings on an indemnity basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
Introduction
This is an application pursuant to Div 42.2 of the Federal Court Rules 2011 (Cth) (the Rules) for punishment for contempt of certain orders…
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- Case
- [2023] FCA 1590
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the determination of an appropriate penalty for Mr. Rotondo's civil contempt. Factors considered included his admission of guilt, his cooperation in removing the offending material, and the absence of any prior history of contempt. The court noted that while Mr. Rotondo's conduct was in deliberate defiance of the court's orders, his admissions and cooperation had saved time and costs, and helped achieve the purpose of the Act. The court also observed that Mr. Rotondo had not expressed or evinced any remorse, nor did he seek to promote or justify his actions.
The court concluded that Mr. Rotondo's admissions and cooperation were made as soon as reasonably practicable after he was made aware of the contempt application, which warranted some leniency. However, the court emphasised the importance of maintaining the privacy and dignity of the depicted persons. Ultimately, the court imposed fines of $5,000, $10,000, and $10,000 respectively for each of the three charges, and ordered Mr. Rotondo to pay the Commissioner's costs on an indemnity basis.
Orders
Orders of the court
1. In respect of charge 1 of the statement of charge issued by Justice Rangiah on 27 October 2023, the respondent, Anthony Rotondo, is to pay to the Commonwealth of Australia a fine of $5,000.00;
2. In respect of charge 2 of the statement of charge issued by Justice Rangiah on 27 October 2023, the respondent, Anthony Rotondo, is to pay to the Commonwealth of Australia a fine of $10,000.00; and
3. In respect of charge 3 of the statement of charge issued by Justice Rangiah on 27 October 2023, the respondent, Anthony Rotondo, is to pay to the Commonwealth of Australia a fine of $10,000.00.
4. The respondent, Anthony Rotondo, is to pay the applicant’s costs of and incidental to the contempt proceedings on an indemnity basis.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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
Mr Rotondo’s conduct in disseminating the orders and other documents undermined the Court’s attempt to maintain the privacy and dignity of the depicted persons. Indeed, this conduct can be viewed as a deliberate defiance of the Court’s orders. By engaging in that conduct, Mr Rotondo effectively defeated the careful work of the Commissioner’s officers to suppress the identities of the depicted persons in these proceedings to date. Admission and co-operation Mr Rotondo has admitted his contempt and has not contested the charges brought against him. This justifies some substantial reduction in the punishment that would otherwise be imposed. Moreover, as Mr McKechnie of Counsel submitted on behalf of the Commissioner, the importance of removing the offending material from the internet cannot be overstated. The fact that Mr Rotondo voluntarily provided passwords and other necessary information to allow the Commissioner’s officers to remove that material must be accorded significant weight. Those steps may demonstrate some degree of contrition on his part. However, it is concerning that Mr Rotondo did not otherwise express or evince any remorse in connection with his conduct. That having been said, he also did not seek to promote what he had done or to justify it. Overall, I accept the Commissioner’s submission that Mr Rotondo’s admissions and his co-operative conduct did result in a saving of time and costs. As best that he now can, while he remains detained on the aforementioned State charges, Mr Rotondo has purged his contempt by consenting to the Commissioner’s staff accessing his online accounts and removing the offending material from the internet. This has assisted the Commissioner to achieve and further the purpose of the Act. The Commissioner submitted that the Court should find that Mr Rotondo’s admissions and co-operation came as soon as reasonably practicable after he was made aware of the contempt application. That generous submission should be accepted, and it assists in relieving the severity of the punishment that might otherwise have been imposed. Mr Rotondo’s motives, character and antecedents Some significant difficulty attends this case insofar as there remains a paucity of information about Mr Rotondo’s personal circumstances, which might be relevant to the assessment of the appropriate penalty. During the course of the hearing, he was offered an opportunity to make submissions to the Court about such matters on multiple occasions, but he chose not to do so. This decision is, of course, not to be counted against him. However, it means that he has not made reference to any matter personal to him that might be taken by the Court to reduce the penalty properly to be imposed. Ultimately, there is no evidence of any history of Mr Rotondo not complying with Court orders. The Court must therefore proceed on the basis that this is the first occasion on which Mr Rotondo has been found to be in contempt, and no additional penalty should be imposed on the basis that he is a recidivist offender. Comparable cases