FEDERAL COURT OF AUSTRALIA
Infa-Secure Pty Limited v Crocker [2015] FCA 830
Citation: Infa-Secure Pty Limited v Crocker [2015] FCA 830 Parties: INFA-SECURE PTY LIMITED (ACN 149 173 660) v DEBRA ANN CROCKER File number: QUD 9 of 2015 Judge: REEVES J Date of judgment: 13 August 2015 Catchwords: CONTEMPT OF COURT – application for finding of contempt of court under r 42 of the Federal Court Rules 2011 (Cth) – where failure to comply with an undertaking given to the Court – whether application for contempt complies with requirements of r 42 of the Federal Court Rules 2011 (Cth) – whether respondent has breached undertaking – consideration of the meaning and scope of the undertaking – consideration of the time limit on the operation of the undertaking – whether the charges are established beyond reasonable doubt – whether conduct was casual, accidental or unintentional Legislation: Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth))
Copyright Act 1968 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Judiciary Act 1903 (Cth)
Trade Marks Act 1995 (Cth)Cases cited: Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; [2001] HCA 66
Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321
Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21
Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate (2014) 225 FCR 210; [2014] FCAFC 101
Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728
Crocker v Toys ‘R’ Us (Australia) Pty Ltd [2015] FCA 588
Levinge on behalf of the Gold Coast Native Title Group v State of Queensland [2012] FCA 1321
Nau v Kemp & Associates [2010] NSWCA 164
Ramsey v Skyring (1999) 164 ALR 378; [1999] FCA 907
Titan Support Systems Inc v Nguyen (No 2) [2015] FCA 359Date of hearing: 26 May 2015 and 11 June 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 203 Counsel for the Applicant: Mr N Ferrett Solicitor for the Applicant: Chrysiliou Lawyers Counsel for the Respondent: Ms Crocker appeared in person
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 9 of 2015
BETWEEN: INFA-SECURE PTY LIMITED (ACN 149 173 660)
ApplicantAND: DEBRA ANN CROCKER
Respondent
JUDGE:
REEVES J
DATE:
13 AUGUST 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
INTRODUCTION
This proceeding, and a related proceeding commenced by Ms Crocker (QUD 647 of 2014), are the most recent emanations of a long-running dispute between Infa-Secure Pty Limited (Infa-Secure) and Ms Crocker in respect of a child restraint product called SECURAP.
On 12 January 2015, Ms Crocker gave an undertaking to this Court in this proceeding. That undertaking was given during the hearing of an application by Infa-Secure for an interlocutory injunction to restrain Ms Crocker from continuing to make various representations she had allegedly made to…
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- AGLC
- Infa-Secure Pty Limited v Crocker [2015] FCA 830
- Case
- [2015] FCA 830
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Ms Crocker had breached the undertaking she gave to the Court on 12 January 2015. Specifically, the court had to consider the meaning and scope of the undertaking, the effect of any time limit on its operation, and whether Ms Crocker’s conduct was casual, accidental, or unintentional. The court also needed to assess whether the charges were established beyond reasonable doubt.
The court rejected Ms Crocker’s assertions that the undertaking only applied until the first directions hearing before the Court on 5 February 2015. The court found that nothing during the hearing on 12 January 2015 suggested a time limit on the operation of the undertaking. Furthermore, the words of the undertaking, “until trial or earlier order,” were clear and unambiguous, indicating that it would remain in effect until the trial or any relevant earlier order in the same proceeding. The court also noted that during the directions hearing, Ms Crocker did not indicate any understanding that her undertaking would cease to operate at that point. Additionally, Ms Crocker’s emails showed an awareness that her conduct might be in breach of the undertaking. Based on these findings, the court concluded that Ms Crocker had indeed breached the undertaking beyond reasonable doubt. The court proceeded to hear from the parties regarding the appropriate penalty for Ms Crocker’s actions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I therefore reject all of the assertions Ms Crocker made in her unsworn affidavit about the meaning and effect of the undertaking she gave to the Court on 12 January 2015.No time limit on the operation of the undertaking Next, I will address the assertions Ms Crocker made in her written submissions that her undertaking only applied during the period to, and including, the first directions hearing before me on 5 February 2015. There is a number of reasons why that assertion must be rejected. First, nothing was said during the hearing before Dowsett J on 12 January 2015 that could have led to that understanding. During that hearing, Ms Crocker did not, at any stage, place any time limit on the operation of the undertaking she gave to the Court. Nor did Dowsett J, or the counsel for Infa-Secure (see the transcript set out in [39]–[41] above). As to the part of the transcript which may be the source of that assertion (see at [168] above), when it is read in context, it is apparent that his Honour directed that comment to Infa-Secure’s counsel and, moreover, it was made at an earlier stage in the hearing when the form of the interlocutory injunction order being sought by Infa-Secure was under discussion. Subsequent to that exchange, the suggestion was made that Ms Crocker might give an undertaking to avoid the necessity to make such an order. After some further discussion about that suggestion, the hearing was adjourned so that Infa-Secure’s counsel could draft the undertaking in consultation with Ms Crocker. When the hearing resumed, Ms Crocker agreed to give the undertaking in the form so drafted. It follows that the comment in question was not directed to Ms Crocker’s undertaking, but instead to the form of a draft order under discussion much earlier in the hearing. Furthermore, as I have already remarked above (see at [178]), there was no mention of any time limit being placed on the operation of the undertaking during the balance of the hearing. I do not therefore consider that anything said at that hearing could reasonably have led Ms Crocker to understand that her undertaking would only operate until the first directions hearing before me in February 2015. Secondly, I consider that, by their ordinary meaning, the words of the undertaking: “until trial or earlier order”, are clear and unambiguous. Plainly the words “earlier order” refer to an order before the final determination at the trial that directly affects the terms, or continuing operation, of the undertaking. Moreover, they plainly refer to an order in the proceeding in question, namely this proceeding. Conversely, they do not refer to an order of any kind, nor to an order made in a different proceeding, for example Ms Crocker’s proceeding. I do not therefore consider the suppression order made in Ms Crocker’s proceeding could reasonably be said to be an “earlier order” affecting her undertaking in Infa-Secure’s proceeding. Thirdly, despite the fact that her undertaking was briefly mentioned during the directions hearing on 5 February 2015, Ms Crocker did not, at any stage during that hearing, say that she understood that her understanding would cease to operate from that time. To the contrary, the discussion that did occur clearly implied it would continue in effect. The relevant parts of the transcript comprised the following discussion about a suppression order Infa-Secure had sought under r 2.32(3) of the Rules to prevent public access to the documents on the Court file relating to Ms Crocker’s proceeding:MR FERRETT: …There has been undertakings given by Ms Crocker as with whom she will communicate and what she will communicate. We would argue, although it doesn’t need to be determined today, that those undertakings have been breached, but, in the meantime, I would ask for an order in terms of paragraph 5.HIS HONOUR: Ms Crocker, have you read that proposed order?MS CROCKER: I gave the undertaking, your Honour, to Dowsett J.HIS HONOUR: Well, this is slightly different. The effect of this order would be to restrict access to that document that you filed –originating application – to the parties to the proceeding. Well, do you want to say anything in opposition to that?MS CROCKER: I don’t know, your Honour. Honestly, I don’t understand the confidentiality being sought in this matter.HIS HONOUR: Well, at present, some documents on a file that are filed in the court are available to the public, others are not.MS CROCKER: Yes, your Honour, I understand that.HIS HONOUR: The originating application is usually one that is available to the public. What Mr Ferrett is saying is, and I’ve read most of the originating application, that it contains a number of fairly serious allegations - - -MS CROCKER: Damaging allegations, yes.HIS HONOUR: - - - about his clients.MS CROCKER: Yes. I appreciate that.HIS HONOUR: It alleges criminal activity in their part and so on. What he is doing is seeking an order that that application be - - -MS CROCKER: Suppressed.HIS HONOUR: - - - restricted to the parties to the proceeding so only they can read that material.MS CROCKER: Read the material, yes.HIS HONOUR: Do you oppose that?MS CROCKER: I don’t think so. I don’t see a problem with it, your Honour.HIS HONOUR: Well, then, I will make an order in terms of - - -MS CROCKER: That doesn’t restrict me from communicating with a law firm, does it?HIS HONOUR: No.MS CROCKER: Lawyers or anybody like that, or QPILCH Administration?HIS HONOUR: No. This is different to the - - -MS CROCKER: Yes. This is media and public.HIS HONOUR: - - - undertaking you gave to Dowsett J which contains exceptions. You can communicate with lawyers to seek advice and - - -MS CROCKER: Thank you.HIS HONOUR: - - - the other exceptions that were stated in that order. This is to – the effect this has on you is fairly limited. It just means that no one else can read that material apart from the parties to the proceeding.MS CROCKER: Well, it protects the reputation of the other party until the trial determines the reality. I get that.(Emphasis added)