Hamra v Agcrag Pty Ltd
[2010] SADC 87
•30 June 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
HAMRA & ORS v AGCRAG PTY LTD & ORS
[2010] SADC 87
Judgment of His Honour Judge Brebner
30 June 2010
PROCEDURE - CONTEMPT, ATTACHMENT AND SEQUESTRATION - POWER OF COURT TO PUNISH FOR CONTEMPT - OTHER COURTS - COUNTY, DISTRICT AND LOCAL COURTS
Defendants charged with contempt of court. Defendants alleged to have failed to comply with interlocutory orders of a Judge of the District Court. Available inferences compelled the conclusion that the third defendant had committed the contempt alleged. Available inferences did not compel that conclusion in relation to the first and second defendants. First and second defendants acquitted. Third defendant found guilty.
District Court Civil Rules 2006, referred to.
Witham v Holloway (1995) 183 CLR 525; R v Ryan (1984) 14 A Crim R 97; Smith v R (1981) 5 Crim LJ 161; Sheppard v The Queen (1990) 170 CLR; O'Conner v Stevenson (1990) 21 FCR, considered.
HAMRA & ORS v AGCRAG PTY LTD & ORS
[2010] SADC 87
Registrars’summons for contempt of court.
Mr Hamra, the first plaintiff, is a director of the second plaintiff Hamra Developments Pty Ltd and of the third plaintiff Hamra Homes Pty Ltd. The second plaintiff trades as Hamra Homes (Hamra or Hamras) and the third plaintiff does not currently trade. Mr Musolino, the second defendant, is a director of the first defendant AGCRAG Pty Ltd. The first defendant trades as AGCRAG Landscaping and Earthworks (AGCRAG). The third defendant, Mr Brookfield is a director of a company named Websites B4U Pty Ltd (Websites). Websites operates a corporate investigations service.
The summons for contempt was issued by the Registrar on the application of the plaintiffs. In essence the summons alleges that the defendants failed to comply with certain orders made by a Judge of the Court and that their respective failures amount to contempts. The plaintiffs undertook the prosecution of the charge.
Charges of contempt must be proved beyond reasonable doubt.[1] Accordingly, whenever I use the words “proved” or “satisfied” during the course of these reasons I will be meaning proof or satisfaction beyond reasonable doubt.
[1] Rule 305 District Court Civil Rules 2006. Witham v Holloway (1995) 183 CLR 525 at 534.
The plaintiffs were represented by counsel, the second defendant appeared in person and for AGCRAG in his capacity as one of its directors and the third defendant appeared in person. No issue was taken about service of either the orders or the summons. Mr Hamra and his solicitor Mr Grant gave evidence in support of the summons. Affidavits of Mr Hamra, Mr Grant and the second defendant were tendered as part of the case for the plaintiffs. The third defendant gave evidence. The second defendant neither gave nor called any evidence and nor did he adduce any evidence on behalf of the first defendant.
Before proceeding any further something should be said about the way Mr Musolino and Mr Brookfield conducted their cases. Both said that they had considered the question of representation and that they had decided to represent themselves and, in Mr Musolino’s case, AGCRAG. Mr Musolino declined to cross-examine any witnesses. Mr Brookfield presented as a confident, intelligent and articulate individual who was far from overawed by the situation in which he found himself. He claimed some experience of litigation and the way in which he conducted himself and his defence tended to bear this out and he was obviously well prepared. He understood his right to have the deponents of the affidavits called for cross-examination and he exercised that right. He said that he understood his right not to incriminate himself, and this appeared to be so. It became plain that he had formulated a strategy of confession and avoidance in the sense that he had obviously decided to run as close to the plaintiff’s case as possible and then simply deny that he had wilfully disobeyed any order of the Court, and it also became plain that he had devised his tactics for executing that strategy both by way of cross-examination and by way of presentation of his own case. It also became plain that he had some understanding of his obligations under the rule in Browne v Dunn and some appreciation of the concept of relevance. Both Mr Musolino and Mr Brookfield appeared to understand their right to give evidence or to remain silent.
There is also an evidentiary matter which it is more convenient to deal with at the outset.
Copies of a number of facsimiles, letters and emails were exhibited to the affidavits of Mr Hamra and Mr Grant. These documents purported to be copies of facsimiles, letters and emails sent by Mr Brookfield to Mr Hamra or to Mr Grant or sent by Mr Grant to Mr Brookfield or to Mr Musolino (“the correspondence”). Counsel for the plaintiffs relied on the correspondence in order to prove relevant knowledge and other states of mind on the part of Mr Brookfield and also Mr Musolino.
The plaintiffs thus undertook to prove that the correspondence which was said to have been forwarded by Mr Brookfield was in fact sent by him and that the correspondence which Mr Grant sent to Mr Brookfield and to Mr Musolino was in fact received and read by them.
As a matter of principle the fact that communications of some kind were sent by one person and received and read by another can be proved either extrinsically or circumstantially by reference to the terms of the communications and the circumstances in which they occurred.[2]
[2] R v Ryan (1984) 14 A Crim R 97 at 101.
As I will outline shortly, the charge of contempt has its origins in a dispute between ACRAG and Hamras which led to a Judge of the Court making certain orders which became the foundation for the charge of contempt. All of the correspondence plainly relates to this dispute, these orders or to the summons for contempt.
The correspondence which was said to have been sent by Mr Brookfield to Mr Hamra or to Mr Grant all purports to have been signed by him or sent by him or on his behalf. The correspondence which was said to have been sent by Mr Grant to Mr Musolino was sent to Mr Musolino’s residential address and AGCRAG’s business address as recorded on the company extracts relating to AGCRAG and the correspondence which was said to have been sent by Mr Grant to Mr Brookfield was sent to the postal address or the email address quoted on the correspondence said to have been sent by Mr Brookfield to Mr Hamra. Correspondence in the form of emails said to have been sent by Mr Brookfield to Mr Grant bears Mr Brookfield’s name and the email address quoted on the correspondence said to have been sent by him to Mr Hamra. The terms of the correspondence which was said have been sent by Mr Brookfield to Mr Grant is plainly responsive to correspondence said to have been sent by Mr Grant to Mr Brookfield and gives rise to the inference, to the exclusion of all other reasonable possibilities, that the reader both knew about and understood what Mr Grant was describing or asserting. It was not asserted that Mr Musolino had forwarded any correspondence to Mr Hamra or to Mr Grant.
Also, Mr Grant arranged to have Mr Musolino and Mr Brookfield served with the orders and ultimately with the summons at the addresses mentioned above. Both appeared at the commencement of the hearing and neither asserted that they had no knowledge of the orders or that the proceedings did not relate to them or that they had not received or sent the relevant correspondence.
In all the circumstances I am satisfied that the various correspondence which was said to have been sent by Mr Grant to Mr Brookfield was in fact received and read by Mr Brookfield and that the correspondence which was said to have been sent to Mr Grant by Mr Brookfield was in fact sent by him. Indeed Mr Brookfield did not dispute that this was so and, during the course of a submission of no case to answer, he informed me that he “… was happy to stand by all the documents and statements I have made” and, under cross-examination, he agreed that he had either sent or received most of the relevant correspondence and he seemed content for his cross-examination to proceed on the assumption that he had either sent or received all of it.[3]
[3] Mr Brookfield was not cross-examined about whether he had received the balance of the correspondence sent to him by Mr Grant.
Hamra is a building and development company which often has a large number of projects in progress. It is involved in joint ventures with other large developers and with Government. In 2008 AGCRAG was engaged by Hamras to carry out landscaping work on Hamras behalf. A dispute over payments arose. AGCRAG submitted invoices to Hamra. Although Hamras paid some invoices it refused to pay others on the ground that the work had not been satisfactorily performed. The amount in dispute was about $49,000. According to Mr Hamra, Hamras conducted business with about 60 to 70 suppliers and subcontractors, Hamras were solvent and they ordinarily paid their accounts on time.
Enter Mr Brookfield.
Some time in about late January 2009 a bricklayer named Pearce received a text message requesting him to call a nominated telephone number if he worked for Hamras. He telephoned the number and the man who answered identified himself as Ian Brookfield. Mr Brookfield does not dispute that he was the man to whom Mr Pearce spoke. According to Mr Pearce, Mr Brookfield enquired if he worked for Hamras and he said that he did whereupon Mr Brookfield enquired about “how I was going with getting money”. Mr Pearce did not give Mr Brookfield his name and nor did Mr Brookfield ask for it.
On 9 March 2009 Mr Hamra received a facsimile from Websites. The facsimile comprised a header sheet, a letter and an authorisation. All three documents were headed with Website’s logo. Underneath the heading WEBSITES B4 U PTY LTD on each document the words “EXPOSING YOUR BUSINESS TO THE WORLD” appear. The letter was in the following terms:
Dear Mr Hamra
Please find the attached statement for monies owed by your company to Agcrag Landscaping & Earthworks. As many of these invoices exceed 60 days they may very well bring into question the current financial position of your company.
In order for you to remove your company from the potential status of trading whilst insolvent and the requirement for the necessary steps to be taken to prevent such conduct from continuing, please ensure that full and final payment is made available by way of bank cheque for the amount of $49,228.85 in favour of Agcrag Landscaping and Earthworks.
Arrangements have been made with Mr Gus Musolino to attend at your office at 3pm on Tuesday 10 March 2009 to pick up this payment accordingly. Mr Musolino has then been instructed to contact our office and confirm the payment.
In the alternative, should the payment not be made as requested, this file will be forwarded on to Mr Frank Pangallo of Today Tonight in Adelaide to investigate your company and what appears to be its inability to pay its debts as and when they fall due. Breached under the Corporations Act will subsequently follow as a result thereof.
I trust your company will now discharge the identified indebtedness to Agcrag Landscaping & Earthworks.
Yours Faithfully
Ian Brookfield
(emphasis added)
Today Tonight is a television current affairs program which goes to air in Adelaide.
The letter was signed by Mr Brookfield. The authorisation purports to be signed by both Mr Brookfield and Mr Musolino and it authorises Websites to arrange payment of AGCRAG’s invoices to Hamras and, if required, to arrange a Today Tonight investigation into Hamras regarding potential breaches of the Corporations Act (Cwth) 2001 by Hamras. Mr Brookfield did not dispute that he had transmitted the facsimile or that it had been transmitted at his direction. Under cross-examination he said that he had sent the letter and the enclosures to inform Mr Hamra about “… exactly what my future thinking was”.
Despite some evidence which Mr Brookfield gave and to which I shall return, it is plain that AGCRAG had engaged Websites to collect the money it says it was owed by Hamras. Debt collecting is sometimes not a gentle business however, Websites letter to Mr Hamra falls little short of outright blackmail. But it gets worse.
Hamras then entered into discussions with Websites. Hamras informed Websites that AGCRAG had not carried out the work in a satisfactory manner. Notwithstanding this, and on 11 March 2009, Websites forwarded a letter of demand signed by Mr Brookfield to Hamras by facsimile demanding payment by 13 March 2009 or “the matter will be passed on to our legal team for further action as previously advised”. On 13 March Hamras received a facsimile message from Websites requesting that a specific employee of Hamras contact Mr Musolino and advise him of a suitable time for him to attend Hamras premises and collect the money.
On 20 March Hamras sent a letter to Websites by facsimile informing Websites that Hamras were in the process of reviewing the work which had been performed by AGCRAG. Notwithstanding this, a notice in the following terms appeared in the public notices section of the edition of “The Advertiser” published on 26th March 2009:
HAMRA HOMES
Any Suppliers or contractors that have OUTSTANDING accounts with HAMRA HOMES please contact Mr Ian Brookfield on (02) 89180881.
This notice led to a number of Hamras’ contractors and suppliers contacting Hamras. Other similar notices also appeared in other editions of “The Advertiser”. Mr Brookfield gave evidence that he was responsible for the placement of these notices (“the notices”).
Apparently not content with progress, on 27th April, Websites sent a letter signed by Mr Brookfield to Mr Hamra by facsimile. The letter was in the following terms:
For the urgent attention of: Sam Hamra,
Dear Sam,
Whilst my intervention into your company’s activity probably concerns you, the fact remains that I have been invited to examine your activities as a direct result of people and businesses that are owed money by you.
As both the amounts and the age of the debts which have been bought to my attention are of concern, I have an obligation to bring this matter to the attention of the appropriate authorities. As a consequence, please find attached a copy of correspondence forwarded to ASIC.
It is now abundantly clear that your business requires external administration and although this option is not always accepted, it is an option that will earn you respect rather than trade under difficult and strenuous conditions.
In light of what is clearly a serious position for your organisation, I would invite you to accept my assistance in allocating an external administrator to work with you through this difficult time. This offer is made in good faith and with a view of resolving the outstanding indebtedness you currently have with many creditors.
Should you wish to give this matter further consideration, I would encourage you to visit B4U.com.au and complete the application form under business B4U GO Broke.
In the mean time, I would now again request the immediate payment of the outstanding accounts of both Agcrag Pty Ltd and Palmer Earthmoving Contractors and await their phone call upon receipt of their appropriate payments.
As you would appreciate, it is far more responsible to seek professional help under these circumstances.
Yours Faithfully,
Ian Brookfield.
(emphasis added).
Accompanying the letter was copy of the letter which Websites claimed it had sent to the Australian Securities Investment Commission. It was in these terms:
Re: Hamra Homes Pty Ltd
ABN 98 121 390 887
6 April 2009
For the urgent attention of: ASIC Complaints
The Investigating Officer in Charge;
It has been brought to my attention that the obove identified company Hamra Homes Pty Ltd may be trading insolvent.
This view has been drawn as a direct result of ongoing investigations into the company over the last month. An advertisement which appeared in the public notices section in the Adelaide Advertiser resulted in over sixty phone calls into my office from suppliers and contractors who claimed to be owed money outside of their normal trading terms.
In light of the legacy of debt that Alpine Constructions has left behind, any builder that appears to be unable to pay their debts as and when they fall due should be looked at closely by those vested with the authority to overview such conduct. I would therefore strongly recommend that ASIC have a close look at this company and ascertain the company’s financial status in the Adelaide market.
In the event they are sound and financially responsible, it will be piece of mind for those who are owed money or are having homes built by them. In the event there are questions of concern, it will allow the authorities to step in as required therefore protecting the financially exposed.
I would sincerely appreciate your assistance on this matter and await your advice accordingly.
Yours Faithfully,
Ian Brookfield.
(emphasis added).
Also accompanying the letter was what purported to be a copy of a letter sent to Mr Brookfield from Palmer Earthmoving Contractors (“Palmers”) which was in the following terms:
Att. Ian Brookfield
02 89180888
02 89180881
Fax 02 9954 6717
RE: HAMRA HOMES
I am writing to you today about a notice published in the paper regarding amounts owing from Hamra Homes.
We completed work in September 2007 for Hamra Homes with a 5% retention held back for 12 months. December 2008 we invoiced for the retention and have not yet received payment.
Please find a copy of invoice 307/2 being the last invoice paid which outlines the contract price, all payments and the 5% retention. Also is a copy of the retention invoice from December 2008 to be paid.
We appreciate the difficulties of your tasks and look forward to receiving payment of this account.
Should you have further questions please feel free to contact Colin on 0418 848 690.
Regards
Jodie Cowling
For Palmer Earthmoving Contractors.
Palmers were sub-contractors of Hamras. According to Mr Hamra, Palmers had over charged Hamras by mistake and that the error had been rectified.
Again Mr Brookfield admitted in cross-examination that he had sent this letter and its annexures.
On or about 1st May 2009 Mr Hamra received a telephone call from a female who identified herself as journalist employed by “The Advertiser” named Sarah Martin. She informed Mr Hamra that Mr Brookfield had forwarded some information to her and she enquired whether a company named Palmer Earthmovers was one of Hamras’ creditors. Ms Martin was not called by any of the parties, however under cross-examination Mr Brookfield said that she had telephoned him and spoken to him about Hamras and that he had told her that he had received more than 60 calls from disgruntled suppliers of Hamras.
The potential effects of all this on Hamras reputation and its business are self-evident. Mr Hamra became understandably concerned about the effects of Websites unconventional and coercive methods and the plaintiffs eventually sought injunctive relief and other orders to protect their position. On 14th May 2009 Rice DCJ made a number of orders (the orders) including orders restraining the defendants from publishing any material making imputations against the financial viability of Hamras and from publishing advertisements of the kind quoted above. His Honour also made orders in the following terms:
“3.Within seven days the Defendants provide a list of all persons who have responded to any of the advertisements of the type referred to in paragraphs 29 and 30 of the affidavit of Hayssam Hamra sworn 11 May 2009. (order 3).
4Within seven days the Defendants provide a list of or request that their employees, servants or agents provide details of the individuals and companies that they have spoken to about the plaintiffs or any of them.” (order 4).
The advertisements referred to in order 3 are the notices.
Also on 14th May, Mr Grant forwarded a copy of the orders and a letter to Mr Brookfield by email. The letter was in these terms:
14 May 2009 Emails 14/5/09
Mr I Brookfield
Level 4/65 Waker Street
NORTH SYDNEY NSW 2060
RE: Hayssam Hamra & Ors -v- AGCRAG Pty Ltd & Ors – District Court of South Australia Action No: 0861 of 2009 (the “Proceedings”)
We refer to our letter to you of 12 May 2009 enclosing:
1. a Summons;
2. an Interlocutory Application; and
3. an Affidavit of Hayssam Hamra sworn 11 May 2009.
We also refer to our email to you of 12 May 2009 instant advising that there was a hearing listed on 14 May 2009 at 2.15pm.
At the hearing orders were made in accordance with the enclosed minutes of order. We are currently awaiting these orders to be sealed by the court but thought it was appropriate for us to notify you of same so that you are aware of your obligations.
We also take this opportunity to enclose an affidavit of the writer sworn 14 May 2009.
The matter has been adjourned to Friday 29 May 2009 at 11.30 am.
Yours faithfully,
GEORGIADIS LAWYERS
Per:
Brenton Grant.
On the same day Mr Brookfield replied to Mr Grant by email which relevantly stated:
“In regard to orders 3 and 4 the identities of those suppliers and or contractors who have contacted me will not be disclosed in light of their requests to keep their identities confidential in order to disclose your clients indebtedness to them.”
Mr Brookfield admitted in cross-examination that he had forwarded the email to Mr Grant.
Mr Grant then made arrangement to have copies of the sealed order served on the defendants and Mr Brookfield said under cross-examination that this had in fact occurred.
No lists of the kind specified in the orders were ever provided either to the plaintiffs or to the Court. This led the plaintiffs to apply for the issue of a Registrars summons for contempt of Court pursuant to Rule 303 of the District Court Civil Rules 2006. The application was granted on 12th June and a Registrar’s summons was ultimately issued on or about 19th June requiring the defendants to attend before the Court on 10th July and answer a charge of contempt alleging that they had refused to “obey or comply” with the orders of Rice DCJ. As set out above, the plaintiffs undertook the prosecution of the charge.
On 21st July Mr Musolino swore and filed an affidavit in which he asserted that he had spoken to Mr Brookfield after the orders had been made and enquired whether a list had been prepared of “in response to whose who enquired” and that Mr Brookfield had told him that there was such a list. He then went on to assert that he was therefore unable to comply with the orders and that he would if he could. Plainly Mr Musolino must have understood what was required of him in relation to order 3 at least.
Also on 21st July there was a hearing before Chivell DCJ at which his Honour set the summons down for hearing on 21st September.
Consequently Mr Grant wrote to Mr Bookfield on 30th July. The letter was in the following terms:
30 July 2009
Mr I Brookfield
Level 4
65 Waker Street
NORTH SYDNEY NSW 2060
By Facsimile: (02) 9954 6717
Re: Hayssam Hamra & Ors -v- AGCRAG Pty Ltd & Ors – district Court of South Australia Action No: 0861 of 2009 (the “Proceedings”)
We refer to previous discussions and correspondence with you in relation to the aforementioned matter and in particular to the hearing on 21 July 2009.
You should be now aware the matter has been set down for a full hearing on 21 September 2009 at 10.00 am. There has been half a day set aside by the Court.
The hearing in relation to the Registrar summoned (sic) for contempt will be finalised at the hearing on 21 September 2009 at 10.00 am.
Pursuant to the Orders made by Judge Rice on 14 May 2009 amongst other things you were required to provide:
·“a list of all persons who have responded to any of the advertisements of the type referred to in the Affidavit of Mr Hamra sworn 11 May 2009”;
·Request that your employees, servants or agents provide details of the individuals and companies that have been spoken to about the Plaintiffs or any of them.
At the hearing on 10 July 2009 his Honour clearly spelt this out to Mr Musolino. His Honour informed that:
1. Even if he does not have a list, a list needs to be compiled.
2. Even if you as Musolino’s (or AGCRAG;s) agent does not have a list that you compile a list and provide it to us in accordance with the Court Orders; and
You have no doubt been provided with transcripts of the last two hearings.
We are hopeful that you will seek legal representation in relation to this matter as the penalties for non compliance with those Orders in contempt of Court will be serious. We are instructed to seek an Order from the Court that is appropriate in the circumstances that an Order for imprisonment to be applied.
We have instructions to seek those serious penalties given what our clients considers to be a belligerent attitude that has been adopted by yourself and Mr Musolino.
Whilst you are already in breach of Court Orders and are in contempt of Court, in order to potentially minimise the penalty that must be imposed, you should immediately comply with the Orders of the Court made 14 May 2009.
We enclose herewith a copy of those orders again for your reference.
Yours faithfully
GEORGIADIS LAWYERS
Per:
Brenton Grant
A copy of the orders was enclosed with the letter.
If Mr Brookfield read this letter any doubts he might have entertained about what the orders required of him would have been dispelled and he would have inevitably realised that:
The plaintiffs did not accept that confidentiality excused him from complying with the orders.
·A summons had been issued against him for contempt of court.
·That the summons had been set down for hearing on 21st September 2009.
·That the contempt alleged was his failure to comply with orders 3 and 4.
·That the plaintiffs would be submitting that imprisonment was the appropriate penalty if the contempt was proved.
·He could mitigate his contempt by complying with the orders.
It is plain that Mr Brookfield did read the letter and was in fact in no doubt about either the existence or the foundation of the charge because on 4th September he forwarded a letter to Mr Grant by facsimile which was plainly a response. In this letter he asserted that there was nothing in the various affidavits and exhibits filed by the plaintiffs to suggest that any lists which could satisfy orders 3 and 4 actually existed and therefore the orders could not be complied with. He then went on to say:
“It therefore follows that if the orders made are incapable of being complied with, it is impossible for the parties against whom the orders are made to be held in contempt of court. Only and only when the parties against which the orders have been made have the abiltiy to discharge or comply with the orders can an issue of contempt be raised if the opportunity to comply with the orders is ignored or refused”.
When this passage of Mr Brookfield’s letter is read in the light of Mr Grant’s letter their terms satisfy me that not only did Mr Brookfield read the letter but also that as a result of reading it he realised (if he did not already know) that there was a charge of contempt in existence and that the foundation of the charge was an allegation of non-compliance with the orders.
On 4th September 2009 Mr Grant responded to Mr Brookfield in the following terms:
4 September 2009
Mr I Brookfield
Level 4
65 Waker Street
NORTH SYDNEY NSW 2060
By Facsimile: (02) 9954 6717
Re: Hayssam Hamra & Ors -v- AGCRAG Pty Ltd & Ors – District Court of South Australia Action No. 0861 of 2009 (the “Proceedings”)
We refer to previous discussions and correspondence with you in relation to the aforementioned matter and in particular we refer to;
1. The Orders of the Court made 14 May 2009;
2. The numerous hearings since 14 May 2009;
3. Our letter to you of 30 July 2009;
4. your letter of 3 September 2009
The Orders made by Judge Rice on 14 May 2009 amongst other things required you to provide:
·“a list of all persons who have responded to any of the advertisements of the type referred to in the Affidavit of Mr Hamra sworn 11 May 2009”;
·Request that your employees, servants or agents provide details of the individuals and companies that have been spoken to about the Plaintiffs or any of them.
At the hearing on 10 July 2009 his Honour clearly spelt this out to Mr Musolino. His Honour informed that:
1. Even if he does not have a list, a list needs to be compiled;
2. Even if you as Musolino’s (or AGCRAG’s) agent does not have a list that you compile a list and provide it to us in accordance with the Court Orders; and
You have been provided with the transcripts of those hearings.
We (and the court) have informed you that you should seek legal representation in relation to this matter as the penalties for non compliance with those Orders in contempt of Court will be serious.
The Orders are clear that you are required to create a list of all of the persons that have responded to the advertisement, and a list of the persons that you have spoken to about any of the plaintiffs. You have;
1. written to ASIC by a letter dated 6 April 2009 informing them that as a result of an “ongoing investigation” you have received “over sixty phone calls …..from suppliers and contractors who claimed to be owed money outside of their normal trading terms”;
2. spoken to Sarah Martin of the Advertiser, which led to the publication of an article in the Advertiser on 19 May 2009 which quoted you in saying that you have “received more than 60 calls from disgruntled suppliers …”
3. sent an email to the writer of 14 May 2009 in which you acknowledged that there is an obligation to provide or create a list of the (60) people who contacted you. However you say that you will not do this as the “suppliers or contractors who have contacted …(you)….will not be disclosed in light of their requests to keep their identities confidential …..”
4. spoken to persons such as Darryl Pearce and Darian Hancock.
Accordingly, even on your own version of events there at least 60 names that need to be contained on the list.
Again we draw to your attention the consequences of a finding of contempt, which can include the imposition of a fine or a sentence to a term of imprisonment. We have explained in previous correspondence our client’s position and have issued numerous invitations to comply with the Orders. The Court has explained to you what needs to be done to comply with the Orders. As set out in this letter you can have no doubt about what needs to be done to comply with the Orders.
Whilst you are already in breach of Court Orders and are in contempt of Court, in order to potentially minimise the penalty that must be imposed, you should immediately comply with the Orders of the Court made 14 May 2009. If you proceed to ignore the Orders, knowing full well what needs to be done to comply with them than you act at your own risk. As Mr Musilino is also responsible for your actions he is also put at risk as a result of your conduct and accordingly we have forwarded a copy of this letter to him as well.
The Court has made it abundantly clear on the previous occasion that the hearing in relation to the Registrar summoned for contempt will be finalised at the hearing on 21 September 2009 at 10:00am.
Yours faithfully
GEORGIADIS LAWYERS
PER:
Brenton Grant
CC Mr Musilino
Mr Brookfield said in cross-examination that he would say that he had received this letter and some of his later answers make it plain that he must have. Given this evidence and, given the findings I have made in relation to the correspondence, I am satisfied that Mr Brookfield did in fact receive this letter.
Again, if Mr Brookfield read this letter he could not have been in any doubt about what the orders required of him, and that the plaintiffs did not accept that confidentiality absolved him from his obligations under the orders and what the potential consequences of non-compliance might be. Given that Mr Brookfield’s replies to Mr Grant’s earlier correspondence were all responsive, it is plain that he must have read all of that correspondence and it is therefore inconceivable that he did not read this letter also, and I am satisfied that he did in fact read it and this tends to confirm my earlier finding that Mr Brookfield well knew what was required of him.
A copy of this letter was also sent to Mr Musolino.
Mr Grant said he spoke to Mr Brookfield by telephone on about two occasions. It was suggested to him in cross-examination that Mr Brookfield had informed him that no lists existed. However, he had no recollection of this being said.
As I have also said, Mr Brookfield gave evidence, Mr Musolino did not and no evidence was called on behalf of the first defendant.
According to Mr Brookfield, the investigative arm of Websites does not advertise its services and obtains its clients by referral, he only receives payment for about a fifth of the investigative work he undertakes and he is willing to work without payment out of altruistic motives. He said that he regarded what he was doing on behalf of Mr Musolino as an exercise in corporate investigation and not an exercise in debt collection and that he did not regard the initial letter of demand he sent to Mr Hamra as being part of a debt collection exercise because the money was to go to Mr Musolino and “the legalities are different” if one is engaged in a debt collecting and that he collects evidence not debts.
Also according to Mr Brookfield, the notices which were placed in “The Advertiser” calling on Hamras creditors to contact him were what he described as “a litmus test to ascertain whether, and if so, how many, other people or entities were owed money by Hamras”. He said that he received over 60 responses to the notices and that he did not request any of the callers to identify themselves because he was interested in how many people were owed money by Hamras and not in their individual identities. He said that the only particulars any of the callers provided was to say that they were suppliers or contractors of Hamras. He went on to say that all of them made it plain to him that they did not want to identify themselves. He said he had employed the technique of placing notices such as these during the course of his “investigations” for over 20 years. He said that as he did not know the identities of any of the individuals who had responded to the notices, it had been impossible for him to comply with the orders.
Also according to Mr Brookfield, Mr Musolino asked him if it was possible to provide a list in compliance with the orders and that he had informed Mr Musolino that it was not.
Mr Brookfield was cross-examined in some detail and the picture which is set out in the following paragraphs then emerged.
Under cross-examination he said that the notices do not assist in collecting any particular debt. He denied that the notices and the threat to contact Mr Pangallo were designed to coerce Hamras into paying Mr Musolino the amount he claimed.
Also under cross-examination Mr Brookfield said that he had spoken to Mr Pangallo in early 2009 and that Mr Pangallo had told him that he was carrying out his own investigation into Hamras. He said that Ms Martin had telephoned him after one of the notices had appeared in “The Advertiser” and that they had some discussions about Hamras but he said that she was not responding to the advertisement as a creditor. He also admitted that he had spoken to a representative of Palmers (who he thought was named Clive) about Hamras, that he had been requested to assist Palmers to collect the money they claimed they were owed by Hamras but he said that Palmers were not responding to the notices either. He also agreed that he had spoken to a man named Lauro and that Mr Lauro had introduced Hamras into the conversation. He said that this conversation probably took place in about July or August 2009. Mr Lauro was not called by any party. Obviously Mr Brookfield had spoken to Mr Musolino about Hamras and he agreed that he had.
Also under cross-examination Mr Brookfield said that he believed the obligation created by order 4 was to provide a list of people who had responded to the notices and that it created no obligation on him to provide a list of every person he had ever spoken to about Hamras and, accordingly, he had not prepared and provided a list including the names of Mr Pangallo, Miss Martin, Palmers and Mr Lauro because none of them had responded to the notices and that, in any event, the investigative arm of Websites had no employees. He also said that the letters he had received from Mr Grant after the orders were made confirmed him in this view.
Under further cross-examination his understanding of order 4 began to vary. He said that he did not understand that order 4 created an obligation on him to provide a list of persons he had spoken to about Hamras but rather it created an obligation on him to provide a list of persons that his employees, servants or agents had spoken to about Hamras. In this regard he went on to say that he had already disclosed the identities of persons or entities he had spoken to about Hamras to Mr Grant or Mr Hamra either by letter or by telephone and that if he was required to do so again in the form of a list in order to comply with order 4 then he would do so.
Under still further cross-examination he went on to contradict his evidence in chief that he had not asked any of the respondents to the notices to identify themselves by stating he had in fact asked all of them to identify themselves and that the only particulars that any of them provided were strictly generic such as a major hardware supplier or a major brick supplier. Obviously a list providing generic descriptions such as these would have had the capacity to satisfy order 3 and the considerations on which that order is based. He also admitted that he had returned a telephone call from an accountant who was employed by an entity which was developing some apartments at Mawson Lakes and again the provision of these particulars would have had the capacity to satisfy order 3.
He agreed that he had a secretary and that she had given him a number of messages to return telephone calls from people who had responded to the notices. He justified his earlier evidence that he did not have any employees on the basis that Websites has employees but its corporate investigations arm does not. He said that these messages were cryptic and provided no information other than a telephone number. It is inherently probable that when he returned at least some of the calls the entity or individual he was telephoning would have identified themselves. He justified not directing his secretary to prepare a list of people who had called about Hamras on the basis that she had not performed any work on the particular file.
With regard to the email which he sent to Mr Grant on 14th May, Mr Brookfield agreed that he did not state that none of the people or entities who had responded to the advertisement had disclosed their identities and he repeated his assertion that all of them had requested confidentiality and he explained away the implication which might arise from the terms in which the email is couched by saying that these were simply the words that he had chosen to use and that he thought that there was no necessity to spell out in the email that nobody had identified themselves to him because he had already made that clear in earlier correspondence.
He denied any suggestion that he did not want to reveal the identities of the persons and entities to whom he had spoken in order to protect himself from an action in defamation.
S48 of the District Court Act 1991 provides:
48 Contempt of Court
(1)The court has the same power to deal with contempts as the Supreme Court has in respect of contempts of the Supreme Court.
(2)This section extends not only to contempts committed in the face of the Court but also to acts and omissions that would, assuming the Court were the Supreme Court, amount to a contempt of that Court.
Rule 4 of the District Court Rules relevantly defines contempt as including “deliberate non-compliance with a judgment or order of the Court”. The wording of the definition plainly imports on elements of mens rea into a charge of contempt.
In the circumstances of this case, and given way in which the issues became defined by the parties, the plaintiffs must prove the following elements to make good the charge and they must do so beyond reasonable doubt.
1. That the orders were made.
2. That the orders were served on the defendants.
3. That the defendants understood the orders in the sense that they had a complete and accurate appreciation of their obligations under the orders.
4.That they had the capacity to comply order 3 in the sense that they were aware of the particulars of the people or entities who had responded to the advertisements or that they were in a position to obtain those particulars if required.
5.That they had the capacity to comply with order 4 in the sense that they were aware of the particulars of any persons that they, or their employees, servants or agents, had spoken to about the plaintiffs or that they were in a position to obtain those particulars if need be.
6.That they then deliberately and contumaciously refrained from complying with the orders by failing to provide the lists stipulated by the orders by the due date in the sense that they wilfully disobeyed either or both of the orders.
As I have said, there was no dispute about the making of the orders or about service of the orders.
It is convenient to deal first with the case against Mr Brookfield.
With regard to order 3, Mr Brookfield does not dispute that he was aware of the orders and that he understood the obligation which the order placed on him. As set out above, by his email of 14th May, he initially informed Mr Grant that confidentiality prevented him from complying with either order 3 or order 4 and then by his letter of 4th September he informed Mr Grant that as there was nothing in the affidavits and exhibits filed by the plaintiffs to suggest the existence of any lists which could satisfy orders 3 and 4 it followed that the orders could not be complied with and, as set out, he gave evidence to the effect that he could not comply with order 3 because nobody who responded to the notices provided him with their particulars thus making it impossible for him to comply.
Where Mr Brookfied’s evidence is contrary to other evidence or to the inherent probabilities of the particular situation, I prefer the latter. Mr Brookfield is plainly an intelligent man, yet under cross-examination he constantly gave answers which he must have known were unresponsive to the particular question and he gave many equivocal answers thus creating a strong impression that he was being deliberately vague. His claims that he was conducting an investigation rather collecting a debt and that he is an investigator and not a debt collector are plainly disingenuous and, in my view, the latter claim was in all probability made to get around the fact that he does not hold an appropriate licence to collect debts. Similarly, and given his obvious intelligence and the way that his obligations under the orders were spelt out to him by Mr Grant, I also regard his claims that he did not understand the ambit of order 4 to be disingenuous. I also regard the distinction he drew regarding his employees as a disingenuous distinction of convenience.
All that said, the fact that I do not believe Mr Brookfield about something does not of itself amount to proof of any fact the existence of which he denies.
In his email to Mr Grant of 14th May Mr Brookfield did not say in clear and unequivocal terms that he was unable to comply with orders 3 and 4 because he did not know the identities of any persons or entities to which the orders relate. However, one viable interpretation of the terms of the email is that he did in fact know the identities of a number of persons or entities to which the orders related but that he was refusing to disclose them on the ground of confidentiality. For ease of expression I will use to word “persons” to describe any such persons and entities.
This raises the question of whether the terms of the email amount to any relevant admissions on the part of Mr Brookfield.
For this to be so in relation to order 3, I would have to be satisfied that the terms of the email lead to the conclusion, to the exclusion of all other reasonable possibilities, that Mr Brookfield was intentionally asserting to Mr Grant that a number of persons had responded to the notices and that he knew of the identities of at least some of them and that these assertions represented the truth of the matter and for order 4, I would have to be satisfied, again to the exclusion of all other reasonable possibilities, that Mr Brookfield was intentionally asserting to Mr Grant that a number of persons had otherwise spoken to him about Hamras, that he knew the identities of at least some of them and that these assertions also represented the truth of the matter.[4]
[4] Smith v R (1981) 5 Crim LJ 161, Sheppard v The Queen (1990) 170 CLR 573.
From here on whenever I say that I am satisfied that a particular inference should be drawn, I will be meaning that I am satisfied to the exclusion of all other reasonable possibilities.
It will be helpful to repeat the relevant paragraph of the email and to remember that it must be read in the context of the orders themselves and of Mr Grant’s letter to Mr Brookfield of 14th May set out above:
“In regard to orders 3 and 4 the identities of the suppliers and or contractors who have contacted me will not be disclosed in the light of their requests to keep their identities confidential in order to disclose your clients indebtedness to them.” (emphasis added)
On the face of it this paragraph is in clear and unambiguous terms. Any person reading it in the light of Mr Grant’s letter and the orders would immediately conclude the following:
·That Mr Brookfield had read Mr Grant’s letter and the copy of the orders.
·That he had understood the orders and in particular that he had understood the obligations which were placed on him by order 3 and at least insofar as it related to persons he had personally spoken to about Hamras, order 4.
·That a number of persons had in fact contacted him in response to the notices or had spoken to him about Hamras for some other reason.
·That at the time that he forwarded the email he was in fact aware of the identities of at least some of these persons and that he thus had the capacity to comply with both orders.
·That he was refusing to disclose their identities on the ground of confidentiality.
I have already dealt with Mr Brookfield’s overall credibility. I regard his explanation that the words of this paragraph of the email were nothing more than the phraseology he employed to convey the fact that nobody had provided him with their particulars to be disingenuous and designed to draw the sting from what the terms of the email suggest. If Mr Brookfield had intended to inform Mr Grant that nobody had provided him with their particulars one would have expected him to say so and it is apparent from the manner in which he gave his evidence that he is both intelligent and articulate enough to employ words and phrases apt to that task. Similarly, if the relevant information was no longer available to him for some reason such as loss or destruction of records or failing memory, then again one would have expected him to say so. I reject his explanation accordingly.
No interpretations of the email other than those which I have set out suggest themselves, Mr Brookfield does not suggest any other interpretations and, as I have already rejected his explanation for why he couched the email in the terms that he did, I am satisfied that Mr Brookfield was intending to convey to Mr Grant that a number of persons had responded to the notices or had otherwise spoken to him about Hamras and that he knew the identities of at least some them but that he was not prepared to disclose them for reasons of confidentiality.
Do these assertions represent the truth of the matter in the sense of do they reflect the fact that a number of persons had in fact responded to the notices or otherwise spoken to Mr Brookfield about Hamras and do they reflect the fact that he was aware of the identities of at least some of them?
In my view there is nothing to suggest that the assertions do not reflect the truth of the matter and the inherent probabilities of the whole situation do not suggest otherwise. For reasons which will become apparent, it is convenient to deal with each order individually.
The terms of order 3 are clear and unambiguous. Any person of reasonable intelligence would instantly understand the obligation it created and it is necessarily implicit in Mr Brookfield’s evidence that he correctly understood his obligation and indeed he did not suggest otherwise. Mr Brookfield claims some 60 odd people telephoned him in response to the notices. Although there might well be reasons for him to exaggerate the number of responses he received, there is no reason to think that he would assert that he had received some responses when he had not in fact received any and that he was and is fabricating when he says people did in fact respond to the notices. In addition, the inherent probabilities of the situation suggest that he would have received at least some responses. Given that Hamras received a number of enquires from their contractors and suppliers after the notices were published and given that Palmers contacted Mr Brookfield (irrespective of whether they were responding to the notices or not), it is thus probable that Mr Brookfield would have received some responses to the notices from some of Hamras contractors or suppliers who wanted to satisfy their curiosity or ensure that their positions were protected.
I am satisfied that Mr Brookfield did in fact receive responses to the notices from a number of persons. I will refer to those persons as “the respondents”
As I have said, if Mr Brookfield did not know the identities of any of the respondents one would have expected him to say so in the email and there is no apparent reason why he would impliedly assert that he knew their identities when he in fact did not. Again, the inherent probabilities suggest that at least some of the respondents would have identified themselves. Although it would not be surprising if some of them had declined to disclose their identities or requested confidentiality, the fact that Palmers (again irrespective of whether they were responding to the notices or not) did neither suggests that others would also have identified themselves. Also, it is common practice for people who are telephoning someone not previously known to them to state their name and their business when their call is answered, and so again the inherent probabilities of the situation suggest that at least some of the respondents would have identified themselves in one way or another.
I am thus also satisfied that at least some of the persons who responded to the notices would have identified themselves to Mr Brookfield. However, it is simply impossible to make any precise finding as to how many persons in fact responded and identified themselves.
Mr Brookfield’s statement in the email that the identities would not be disclosed for reasons of confidentiality implies that he had the capacity to provide the lists. Again if Mr Brookfield had not retained the capacity to provide the details of identities he had once known then one would have expected him to say so and there is no apparent reason why he would have fabricated about this either. Despite his assertions that he was interested in the number of people who were owed money by Hamras and not their names, one would have expected him to keep some sort of record of the names of any respondents who had identified themselves in case he needed to contact them in the future as part of his “investigations”, and so again the inherent probabilities favour his implied assertion being a reflection of the truth of the matter.
I am thus satisfied that as of 14th May Mr Brookfield had the capacity to comply with order 3.
This raises the question of whether Mr Brookfield retained his ability to comply with order 3 after 14th May.
The first of the notices was published on 26th March. If Mr Brookfield had the capacity to satisfy order 3 as of 14th May then he must have acquired the relevant information during the previous six weeks. In these circumstances, it would have been impossible for him to comply with the order as of 14th May unless he had made a note of the relevant names or committed them to memory and there is no reason to think that he would not have retained his ability to comply with the order after 14th May and I am thus satisfied that he did.
As Mr Brookfield was well aware of the obligation created by order 3, and given my rejection of his explanation as to why he did not provide the requisite list, in all the circumstances, there is simply no room for any conclusion other than that his failure to comply with this order was the product of a wilful disobedience of the order on his part which amounts to a contempt.
I am unable to make any precise findings as to the extent of this contempt over and above the findings which I have already made. Given Mr Hamra’s evidence that the plaintiffs were solvent and paid their debts on time, it would thus seem unlikely that some 60 of their suppliers and contractors would have responded to the notices and, particularly given that Mr Pearce did not volunteer his name and that Mr Brookfield did not ask for it, the possibility that not all of those who responded to the notices identified themselves or were asked to do so cannot be excluded.
I turn to order 4. The intention behind the order appears to be to require Mr Brookfield to provide a list of all persons he had spoken to about Hamras over and above those who had responded to the notices and to direct his employees, servants or agents (employees) to prepare a list of all persons they had spoken to about Hamras. There are thus two aspects to the obligation. The second aspect of the obligation appears to be directed towards ascertaining the identity of any persons who had entered into discussions about Hamras with any of Mr Brookfield’s employees. These obligations are not as clearly expressed as the obligation created by order 3 and unless Mr Brookfield had an accurate understanding of the obligations the order created any non-compliance on his part cannot properly be characterised as wilful.
Whether Mr Brookfield in fact understood the obligations created by order 4 is best considered in the context of the submissions of counsel for the plaintiffs.
Counsel submitted that as Mr Brookfield admitted that he had spoken about Hamras to Mr Pangallo, Ms Martin, an investigator with ASIC and a representative of Palmers he was thus obliged by order 4 to provide a list including their names at the very least.
As I have set out above, Mr Brookfield’s answer to this is that he regarded the obligation imposed on him by order 4 as being confined to people who had responded to the notices and that he was therefore under no obligation to provide a list including the names of these people because none of them had spoken to him in response to the notices. Any person of reasonable intelligence would realise that the only reason order 4 existed was because it focused on a different class of persons than order 3. I regard Mr Brookfield’s construction of the order to be disingenuous and I am satisfied that a man of his intelligence would have understood that order 4 in fact focussed on a different class of persons to order 3 and that the obligation imposed on him by order 4 was to provide a list of any person he had spoken to about Hamras over and above those who responded to the notices and I am thus satisfied that Mr Brookfield had an accurate understanding of the ambit of the first aspect of the order.
As Mr Brookfield said, the identities of Mr Pangallo, Ms Martin, Palmers and the fact that he had spoken to an ASIC investigator were out in the open in any event. In these circumstances, and notwithstanding the explanations given to him by Mr Grant, the possibility exists that Mr Brookfield genuinely believed that he was not obliged to provide a list including names of persons which had already been brought to the attention of Hamras or their solicitors and thus his failure to provide a list including the names of these persons has not been proved to be wilful in the relevant sense.
Counsel for the plaintiff also submitted that the names of Mr Pearce and Mr Lauro should also have been listed in compliance with order 4. Again, I am not satisfied that this is so. Mr Pearce did not give Mr Brookfield his name and nor did Mr Brookfield ask for it. Mr Brookfield thus could not have become aware of Mr Pearce’s name until later and, in all probability, not until after the proceedings were commenced. Mr Brookfield did not speak to Mr Lauro until after the hearing had commenced. In each of these circumstances, it would not be unreasonable for Mr Brookfield to think that the order did not extend to them and again his failure to list them cannot be regarded as wilful. Similarly, it would not be unreasonable for either Mr Brookfield or Mr Musolino to think that order 4 did not require them to put each others names on any list. Again, I am not satisfied that Mr Brookfield wilfully failed to comply with the first aspect of order 4 insofar as Mr Pearce, Mr Lauro and Mr Musolino are concerned.
Did Mr Brookfield speak to anybody over and above the respondents to the notices other than the individuals mentioned in the preceding paragraphs? I have already found that he was intending to represent to Mr Grant that he had in fact spoken to persons over and above the respondents and the question thus become one of whether this is in fact the truth of the matter.
On the face of it there would be no reason for Mr Brookfield to make this representation if it was untrue. If he had not spoken to any person other than the respondents about Hamras, then again one would have expected him to say so. Again there is no apparent reason why he would fabricate and again the inherent probabilities of the situation suggest that persons other than the respondents would have contacted him. Given that Mr Pearce rang Mr Brookfield in response to a text message, the probabilities are that other persons in the building industry received the same text and also telephoned Mr Brookfield and, for the reasons I have given in relation to order 3, the probabilities are that some of them would have identified themselves. As the identities of Mr Pangalo, Ms Martin, Palmer’s representative or the ASIC investigator were out in the open in any event, Mr Brookfield’s claim to confidentiality in relation to order 4 must have been made in relation to some other person or persons.
In all the circumstances there is no reason to doubt the truthfulness of the representation and accordingly I am satisfied that as of 14th May Mr Brookfield had in fact spoken to some other persons over and above the respondents to the notices and over and above those I have identified in the preceding paragraphs and that he was thus obliged to list them if he had the capacity to do so. For the same reasons I have expressed in the context of order 3, I am also satisfied that he had the capacity to list them as of 14th May, that he would have retained that capacity and that his failure to provide any such list must have been wilful thus amounting to a contempt.
Again, I am unable to make any precise findings as the extent of this contempt over and above the findings which I have made in the preceding paragraphs and again it is simply impossible to make any precise findings about how many people should have been listed in compliance with order 4.
The only evidence that any of Mr Brookfield’s employees, servants or agents spoke to any person about Hamras is Mr Brookfield’s evidence that he had a secretary and that she had given him a number of messages to telephone people who had responded to the notices. There is no evidence that his secretary in fact discussed Hamras in any detail with any of the callers or that she made any representations about Hamras to any of them. There is also no evidence that Mr Brookfield had any other employees, servants or agents. There is thus no evidence which has the capacity to demonstrate that any of Mr Brookfield’s employees spoke to any person about Hamras to the extent that would have obliged Mr Brookfield to list them in compliance with the second aspect of order 4.
This brings me to Mr Musolino. As I have said, Mr Musolino asserted in his affidavit that Mr Brookfield told him that it would be impossible to prepare the specified lists and that Mr Brookfield gave evidence that he had informed Mr Musolino of this and there is simply no evidence to the contrary. Nor does any inference to the contrary arise. One would not expect those responding to the notices to have spoken to Mr Musolino and Mr Musolino would have relied on Mr Brookfield for any information about any responses. Although it is possible that Mr Brookfield might have informed Mr Musolino about the identities of the people who had responded to the advertisements or to whom he had spoken about the plaintiffs, it would not have been imperative for him to have done so and the possibility that he did not, simply cannot be ignored. There is thus no evidence which has the capacity to prove that Mr Musolino or the first defendant were ever in a position to comply with either of the orders, or that they believed that Mr Brookfield was in a position to comply thus obliging them to direct him to do so.
There is one potential exception to this but I do not think that it matters. Although there is no evidence on the topic, as a matter of everyday reality it would seem well nigh inevitable that Mr Musolino must have spoken to some of his employees or co-directors about Hamras. Even if this were to be so, then it would not be unreasonable for Mr Musolino to think that order 4 did not oblige him to include the names of any of his employees or co-directors on any list and so any failure on his part to provide their names would thus not have been wilful.
Counsel for the plaintiff submitted that if the charge were to be proved as against Mr Brookfiled then the first defendant and Mr Musolino would be parties to his contempt because he was their agent.
However, it is not as simple as that. The ordinary principles of liability for the acts of agents must be satisfied and in proceedings where the onus of proof is beyond reasonable doubt, and where the liberty of the subject might be at risk, something more than mere agency will be required and a principal can only be held liable for a contempt committed by his agent if the commission of the particular contempt was contemplated by the principal as being a possible outcome of the agency agreement, or procured by him as part of the agreement.[5]
[5] O’Conner v Stevenson (1990) 21 FCR 344.
There is simply no evidence that Mr Brookfield’s failure to comply with the orders in any way reflected a term of his agency agreement with Mr Musolino, and nor is there any evidence that Mr Musolino actively encouraged, assisted or willingly acquiesced in Mr Brookfield’s failure to comply so as to render him liable along with Mr Brookfield.
For the above reasons, I find Mr Brookfield guilty of contempt in that he failed to comply with order 3 and order 4 and I find the first defendant and Mr Musolino not guilty
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