Gadecki, Ewa v International Health and Beauty Aids Pty Ltd t/as Elly Lukas Beauty Therapy College
[1997] FCA 1389
•24 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
CONTEMPT - order of Judicial Registrar - failure by respondent to comply with order - application for contempt - whether respondent has committed a contempt of Court.
Federal Court Rules O 40
EWA GADECKI v INTERNATIONAL HEALTH AND BEAUTY AIDS PTY LTD trading as ELLY LUKAS BEAUTY THERAPY COLLEGE
VI 1087 of 1997
MARSHALL J
MELBOURNE
24 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1087 of 1997
BETWEEN:
EWA GADECKI
APPLICANTAND:
INTERNATIONAL HEALTH AND BEAUTY AIDS PTY LTD TRADING AS ELLY LUKAS BEAUTY THERAPY COLLEGE
RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
24 NOVEMBER 1997
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The respondent has committed a contempt of Court by failing to comply with the orders of Judicial Registrar Ryan of 30 July 1997.
The respondent is fined $5000 in respect of such contempt.
The fine is to be paid to the Victorian District Registry of the Court on or before 4:00 pm on 15 December 1997.
The respondents’ notice of motion dated 11 November 1997 be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1087 of 1997
BETWEEN:
EWA GADECKI
APPLICANTAND:
INTERNATIONAL HEALTH AND BEAUTY AIDS PTY LTD TRADING AS ELLY LUKAS BEAUTY THERAPY COLLEGE
RESPONDENT
JUDGE:
MARSHALL J
DATE:
24 NOVEMBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
By notice of motion dated 14 November 1997 the applicant applied for the respondent to be punished for contempt of Court under order 40 of the Rules of Court for its failure to comply with orders made by Judicial Registrar Ryan on 30 July 1997. The Judicial Registrar ordered that the respondent pay the applicant the sum of $5137.02 compensation and $366.93 damages within twenty-eight days.
On 20 August 1997 the respondent issued a notice of motion to review the exercise of power by the Judicial Registrar and to stay his orders of 30 July 1997. The notice of motion issued on 20 August 1997 was unable to be heard by the Court until 14 October 1997. On that day the Court dismissed the stay application. It also ordered that the review be conducted de novo and adjourned the matter sine die to be listed on no less than twenty-eight days notice for a two day trial. In the penultimate sentence of the ex-tempore judgment of 14 October 1997, I said, in reference to the order of Judicial Registrar Ryan:
“The sums referred to in that order remain payable and should be paid as soon as possible to the applicant’s solicitors.”
By letter dated 14 October 1997 the respondent’s solicitors wrote to the respondent advising it to pay the monies outstanding in accordance with the Judicial Registrar’s order to the applicant’s solicitors. Mr Zotos, the Managing Director of the respondent, who appeared for it today, informed me that he received that letter shortly after 14 October 1997 but told the Court that he had failed to pay the money.
On 6 November 1997 the applicant’s solicitors wrote to the respondent’s solicitors seeking payment and advising that should payment not be received by 10 November 1997 “an application to the Court seeking orders against your client for contempt” would be made.
By notice of motion dated 11 November 1997 the respondent sought to have the payment made by monthly instalments of $500. The court heard that notice of motion this morning, together with the applicant’s motion for contempt. I accept the submissions of Mr Langmead, Solicitor for the applicant, that the respondent’s notice of motion was a response to Mr Langmead’s letter of 6 November 1997 foreshadowing a contempt application.
In his submissions before me this morning, Mr Zotos made contradictory statements about when he received the letter from the respondent’s solicitors dated 14 October 1997. He ultimately conceded that he received it shortly after that date.
By his demeanour it is apparent that Mr Zotos has no respect for this Court or for the rights of his former employee to her remedy subject to the respondent’s right of review. I put to Mr Zotos the fact that counsel appearing for the respondent on 14 October 1997 made no application for additional time to pay the moneys outstanding under the Judicial Registrar’s order. Mr Zotos then asserted that counsel had no authority to appear on that day. If that was so, I then had no authorised stay application before me and perhaps no authorised application for review. If Mr Zotos’ lack of authority point is true, his position is even worse than it appears to be if authority to appear by counsel is assumed. I note that an instructing solicitor was physically present instructing the respondent’s counsel on 14 October 1997. Those solicitors withdrew as solicitors on the record on 20 November 1997.
Having regard to the above circumstances there is no doubt that the respondent is guilty of a contempt of the Court in that it has failed to pay the applicant compensation and damages pursuant to the order of the Court made on 30 July 1997. Its failure to pay, allegedly for financial reasons, in my view is indicative of an arrogant disregard for the order of the Court as exemplified by the attitude of Mr Zotos when he appeared before me this morning.
In the circumstances I dismissed, instanter, the application for payment by periodical instalments given that it appeared that the respondent was in contempt of Court. After hearing submissions on the contempt motion, I was left in no doubt that that was so. I have no doubt that the contempt is a deliberate one and unless the respondent is appropriately punished it will continue to act in flagrant disregard of the Court’s order. In the interim the applicant is being denied her just entitlement in accordance with law. The respondent has acted in a fashion which brings employers in this community into disrepute. It should be appropriately fined. In the circumstances a penalty of $5000 will be ordered.
The money owing under the Judicial Registrar’s order still remains outstanding and unless it is paid today the applicant will be at liberty to issue further contempt proceedings. The Court will not list the application for review for hearing until the applicant has received her payment or the applicant’s solicitors have received payment under the Judicial Registrar’s order and the fine has been paid.
The orders of the Court are as follows:
The respondent has committed a contempt of Court by failing to comply with the orders of Judicial Registrar Ryan of 30 July 1997.
The respondent is fined $5000 in respect of such contempt.
The fine is to be paid to the Victorian District Registry of the Court on or before 4:00 pm on 15 December 1997.
The respondents’ notice of motion dated 11 November 1997 be dismissed.
I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall
Associate:
Dated: 24 November 1997
Counsel for the Applicant: Mr D Langmead. Solicitor for the Applicant: Maurice Blackburn & Co. The Respondent was represented by its Managing Director Mr Alex Zotos. Date of Hearing: 24 November 1997 Date of Judgment: 24 November 1997
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