Hera Project Pty Ltd v Bisognin (No 2) - [2019] VSC 625

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2018 02233

HERA PROJECT PTY LTD (ACN 163 685 041)	Plaintiff
v
GINO ANDREW BISOGNIN	First Defendant
and
LEAH JOAN BISOGNIN	Second Defendant

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2019
DATE OF JUDGMENT:	16 September 2019
CASE MAY BE CITED AS:	Hera Project Pty Ltd v Bisognin & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 625

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CONTEMPT OF COURT – Failure to comply with court orders – Continued non-compliance – Defendants failed to attend trial – Defendants self-represented – Contempt proven – Penalty.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L. Warren	Russell Kennedy Lawyers
For the First Defendant	No appearance
For the Second Defendant	No appearance

HIS HONOUR:

Introduction

On 11 July 2018 and 9 October 2018, Hera Project Pty Ltd (‘the plaintiff’) applied to the Supreme Court of Victoria for the punishment of Gino Bisognin and Leah Bisognin (‘the defendants’) for contempt of court, pursuant to rr 66.05(1)(a) and 75.06 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The plaintiff alleged by way of two summonses, that the defendants committed contempt of court by failing to comply with various court orders.

On 19 July 2019, I determined that the defendants had each committed contempt of court by failing to comply with:

(a) the order of Riordan J made on 28 June 2018, to which a freezing order was attached as Schedule 1 (‘the first freezing order’);[1] and

(b) the order of Riordan J made on 31 August 2018, to which ancillary orders in support of the first freezing order were attached as Schedule 2, and which was extended on 3 October 2018 (‘the second freezing order’).[2]

[1]For relevant terms of the order see Hera Project Pty Ltd v Bisognin [2019] VSC 483 [12]–[13].

[2]Ibid [19]–[20], [24]–[25].

The background of these proceedings and details of the contempt are set out in some detail in Hera Project Pty Ltd v Bisognin [2019] VSC 483 (‘Hera Project v Bisognin’). In summary, I determined that each of the defendants committed contempt by failing to comply with paragraph 6 of the first freezing order and paragraphs 1–3 of the second freezing order, by failing to provide the relevant material by the required date. I further found the defendants continued to be in non-compliance with paragraphs 6(a)(ii)–6(c) of the first freezing order and paragraph 1 of the second freezing order.[3]
[3]Ibid [106]–[107].

Having found the contempts proven, in circumstances where the defendants failed to appear for hearings and were not represented, I deferred my determination on the nature of the contempt and of the penalty to be imposed, to provide the defendants with further opportunity to make submissions.[4]
[4]Ibid [44]–[65]; [109]–[112].

Preliminary issues
The defendants’ legal representation and proceeding in their absence

I have set out the details of the defendant’s representation up until 19 July 2019 at paragraphs [44]–[65] of Hera Project…

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: [2019] VSC 625
Decision Date: 16 September 2019

CaseChat Overview and Summary

Hera Project Pty Ltd commenced proceedings against the Bisognin defendants, seeking contempt of court orders for their continued non-compliance with previous court orders, which included failure to attend a trial. The defendants, who represented themselves, had a history of non-compliance with court processes. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue the court had to address was whether the Bisognin defendants' actions constituted contempt of court, given their persistent failure to comply with court orders, despite multiple opportunities to do so. The court also had to determine an appropriate penalty if contempt was found.

The court found that the Bisognin defendants' conduct did indeed constitute contempt of court. The defendants' repeated refusal to comply with court orders, including a deliberate decision not to attend the trial, demonstrated a clear disregard for the authority of the court. The court considered the defendants' history of non-compliance and their self-representation, which did not excuse their failure to adhere to court directives. The court imposed a penalty, reflecting the seriousness of the contempt and the need to uphold the integrity of the court's processes. The court's decision was aimed at ensuring that the defendants understood the gravity of their actions and the consequences of continued non-compliance with court orders. The Bisognin defendants were ordered to pay costs and were subject to other specified penalties.

Orders