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Express Cargo Services Pty Ltd v Mysko

Express Cargo Services Pty Ltd v Mysko

Case [2024] SASC 112 28 August 2024

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
EXPRESS CARGO SERVICES PTY LTD v MYSKO
[2024] SASC 112
Judgment of the Honourable Chief Justice Kourakis (ex tempore)
COURTS AND JUDGES - CONTEMPT - PARTICULAR CONTEMPTS - DISOBEDIENCE OF ORDERS OF COURT - INJUNCTIONS
COURTS AND JUDGES - CONTEMPT - PUNISHMENT AND ENFORCEMENT - PUNISHMENT - ORDER - NATURE OF PUNISHMENT - IMPRISONMENT
This was the imposition of punishment for two counts of contempt of court.
The respondent was found on 17 May 2023 to have committed two acts of contempt of court. Those acts consisted, generally, of the respondent disobeying the terms of injunctions enjoining her both from disparaging the applicant to its principal clients and from disclosing information gathered by the respondent in the course of her former employment by the applicant. The question of the appropriate punishment to be imposed for the acts of contempt found to have been committed thus fell for determination.
Held, committing the respondent to a correctional institution for a term of four weeks but suspending the term of committal upon the respondent giving certain undertakings to the Court:
1. The charges of contempt found to have been committed by the respondent amounted to more than a mere civil contempt occasioned by non-adherence to curial orders. The deliberateness and hubris with which the respondent challenged the authority of the Court, her previous lack of contrition, and the continuation of the acts of contempt indicated that commitment to a correctional institution was the only appropriate punishment in the circumstances.
2. The term of committal imposed against the respondent ought to be suspended, particularly in light of the respondent’s appreciation of the wrongfulness of her conduct and the support given to her by her family.
Joint Criminal Rules 2022 (SA) r 51.3; Uniform Civil Rules 2020 (SA) r 205.8, referred to.

EXPRESS CARGO SERVICES PTY LTD v MYSKO
[2024] SASC 112
Civil: Application

KOURAKIS CJ: The respondent, Ms Roxanne Mysko, was found by this Court to have committed two acts of contempt on 17 May 2023.[1] Those acts of contempt consisted of the respondent’s sending of emails to Ensign Energy Services Incorporated (“Ensign Energy”), the Canadian holding company of Ensign Australia Pty Ltd (“Ensign Australia”), a principal client of the applicant.[2] Prior to sending those communications, the respondent had been enjoined on 17 July 2020 by Judge Dart, until further order of the Court, from either making any contact with, or sending or forwarding any correspondence to, inter alios, any client of the applicant, including Ensign Australia.[3] The respondent intimating an intention to allege serious misconduct on the part of the applicant to, inter alios, members of Parliament, a wider injunction than that imposed by Judge Dart was imposed by Stein J on 24 December 2021.[4] The Second Order, by its terms, enjoined the respondent from:
1.1Disclosing, by any means of communication or any other act, to any person or entity (other than a legal practitioner retained by the Respondent and who has…

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.

Continue reading Express Cargo Services Pty Ltd v Mysko

Details

AGLC: Express Cargo Services Pty Ltd v Mysko [2024] SASC 112
Case: [2024] SASC 112
Decision Date: 28 August 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Express Cargo Services Pty Ltd, a cargo transportation company, brought an application against its former employee, Mysko, alleging contempt of court. The dispute arose from Mysko's failure to comply with a court-ordered injunction prohibiting him from engaging in activities that would compete with Express Cargo. The court was required to determine whether Mysko's conduct amounted to contempt of court and, if so, the appropriate punishment.

The legal issues the court had to address were whether Mysko's actions constituted contempt of court and, if so, the appropriate punishment. The court considered whether Mysko's actions were in wilful disobedience of the court's orders and whether there was a lesser punishment that could be imposed instead of imprisonment. The court also had to determine whether Mysko's actions were in bad faith or whether there was a reasonable excuse for his non-compliance.

The court found that Mysko's actions constituted contempt of court as he had wilfully disobeyed the court's orders. The court noted that Mysko had a history of disregarding court orders and had previously been found in contempt of court. The court rejected Mysko's argument that he had a reasonable excuse for his non-compliance, finding that he had deliberately ignored the court's orders. The court held that imprisonment was the appropriate punishment for Mysko's contempt of court, as it was necessary to preserve the authority of the court and to deter future contempt. The court ordered Mysko to be imprisoned for six months, with a non-parole period of three months.

Orders