Formal Wear Express Franchising Pty Ltd v Roach - [2004] QCA 339

SUPREME COURT OF QUEENSLAND

CITATION:

Formal Wear Express Franchising P/L v Roach [2004] QCA 339

PARTIES:

FORMAL WEAR EXPRESS FRANCHISING PTY LTD ACN 096 072 418
(applicant/respondent)
v
JOHN WILLIAM ROACH
(respondent/applicant)

FILE NO/S:

CA No 300 of 2004
DC No 3830 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

16 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

16 September 2004

JUDGES:

McPherson and Williams JJA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal
2. Allow the appeal
3. Substitute for the sentences imposed at first instance an order that the applicant be imprisoned for three months on each of the three counts of contempt, such sentences to be served concurrently

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT - WHAT CONSTITUTES – BREACH OF UNDERTAKING TO COURT – where orders were made pursuant to undertaking given by applicant prohibiting them from carrying on mobile suit hire business – where applicant breached undertaking and was fined $3,000 – where applicant again breached undertaking and was ordered to be imprisoned for six months – where no remorse shown – where futile to impose fine – whether term of imprisonment ordered was manifestly excessive

Bakir v Doueihi & Ors [2001] QSC 414; SC No 6124 of 2000, 6 November 2001, referred to
Evenco Pty Ltd v Australian Building Constructions Employees and Builders Labourers Federation (Qld Branch) [2001] Qd R 118, cited

COUNSEL:

A J Rafter SC for the applicant
J C Faulkner for the respondent

SOLICITORS:

Legal Aid (Queensland) for the applicant
Ffrench Commercial Lawyers for the respondent

WILLIAMS JA: This is an application for leave under s 118(3) of the District Court Act to appeal against a sentence of six months' imprisonment imposed on the applicant after he was found to be in contempt of Court.

The applicant is no longer pursuing the challenge to the finding that he was in contempt.

Proceedings were commenced in the District Court between the present respondent as plaintiff, Roach Pty Ltd as first defendant, and the applicant and his wife Patricia May Roach as second defendants.

Upon an interlocutory application being made in that proceeding, an order was made by Judge Brabazon QC on 1 December 2003 which incorporated the following undertaking by all of the defendants:

"The defendants and each of them whether by their servants or agents or otherwise until the determination of these proceedings or further order will not conduct on their own account or be concerned or interested in any business for the mobile hire of formal menswear within the south west Brisbane area as identified in a Franchise Agreement between the parties dated 6 August 2002 or within fifty (50) kilometres thereof as referred to in a Restraint Agreement prepared pursuant to the said Franchise Agreement."

By application filed on 26 February 2004,…

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: [2004] QCA 339
Decision Date: 16 September 2004

CaseChat Overview and Summary

Formal Wear Express Franchising Pty Ltd initiated proceedings against Roach in the Federal Circuit Court of Australia, alleging that Roach breached undertakings made to the Court. The primary dispute centred on Roach's failure to adhere to specific undertakings, which were made in relation to the operation of a mobile suit hire business. The court had previously issued orders prohibiting Roach from continuing this business. Roach contravened these orders and was initially fined $3,000. When Roach subsequently breached the undertakings again, the court imposed a six-month imprisonment term, noting the absence of remorse and the futility of imposing a fine.

The central legal issue for the court was whether the term of imprisonment ordered against Roach was manifestly excessive. The Court of Appeal had to determine whether the six-month imprisonment sentence was justified in the circumstances, considering Roach's repeated breaches of court orders and the lack of remorse demonstrated. The appeal court scrutinised the trial judge's discretion in sentencing and the proportionality of the punishment relative to the offence.

The Court of Appeal found that the original six-month imprisonment term was excessive and did not align with the principles of proportionality in sentencing. The appellate court noted that Roach's breaches of court orders were serious, but the sentence imposed was manifestly excessive given the circumstances. The court substituted the original sentences with a three-month imprisonment term for each of the three counts of contempt, to be served concurrently. This decision underscored the importance of proportionality in sentencing and the need for courts to carefully consider the specific circumstances of each case when imposing penalties.

The court granted leave to appeal and allowed the appeal, substituting the sentences imposed at first instance. The final orders mandated that Roach be imprisoned for three months on each of the three counts of contempt, with these sentences to run concurrently. This ruling provided clarity on the appropriate level of punishment for breaches of court undertakings and reinforced the principle that sentences must be proportionate to the offence and circumstances.

Orders

Orders of the court

1. Grant leave to appeal

2. Allow the appeal

3. Substitute for the sentences imposed at first instance an order that the applicant be imprisoned for three months on each of the three counts of contempt, such sentences to be served concurrently

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.

CITATION:	Formal Wear Express Franchising P/L v Roach [2004] QCA 339
PARTIES:	FORMAL WEAR EXPRESS FRANCHISING PTY LTD ACN 096 072 418 (applicant/respondent) v JOHN WILLIAM ROACH (respondent/applicant)
FILE NO/S:	CA No 300 of 2004 DC No 3830 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	16 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	16 September 2004
JUDGES:	McPherson and Williams JJA and White J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal 2. Allow the appeal 3. Substitute for the sentences imposed at first instance an order that the applicant be imprisoned for three months on each of the three counts of contempt, such sentences to be served concurrently
CATCHWORDS:	PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT - WHAT CONSTITUTES – BREACH OF UNDERTAKING TO COURT – where orders were made pursuant to undertaking given by applicant prohibiting them from carrying on mobile suit hire business – where applicant breached undertaking and was fined $3,000 – where applicant again breached undertaking and was ordered to be imprisoned for six months – where no remorse shown – where futile to impose fine – whether term of imprisonment ordered was manifestly excessive Bakir v Doueihi & Ors [2001] QSC 414; SC No 6124 of 2000, 6 November 2001, referred to Evenco Pty Ltd v Australian Building Constructions Employees and Builders Labourers Federation (Qld Branch) [2001] Qd R 118, cited
COUNSEL:	A J Rafter SC for the applicant J C Faulkner for the respondent
SOLICITORS:	Legal Aid (Queensland) for the applicant Ffrench Commercial Lawyers for the respondent