Infa-Secure Pty Ltd v Crocker (No 2)
[2016] FCA 202
•4 March 2016
FEDERAL COURT OF AUSTRALIA
Infa-Secure Pty Limited v Crocker (No 2) [2016] FCA 202
File number: QUD 9 of 2015 Judge: REEVES J Date of judgment: 4 March 2016 Catchwords: CONTEMPT OF COURT – sentencing – respondent in contempt for non-compliance with an undertaking given to the Court – contumacious, serious and deliberate non-compliance – imprisonment imposed – partly suspended sentence of imprisonment
COSTS – whether appropriate to make an order for indemnity costs against the respondent in contempt proceedings – whether costs taxed immediately
Legislation: Criminal Code Act 1995 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Judiciary Act 1903 (Cth)
Cases cited: Anderson v XLVII (2015) 319 ALR 139; [2015] FCA 19
ASIC v Matthews [2000] NSWSC 392
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Competition and Consumer Commission v Contact Plus Group Pty Ltd (in liq) (ACN 086 261 798) (No 2) (2006) 232 ALR 364; [2006] FCA 695
Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd (Federal Court of Australia, Drummond J, 6 November 1998, unreported)
Australian Competition and Consumer Commission v Info4pc.com (2002) 121 FCR 24; [2002] FCA 949
Australian Competition and Consumer Commission v Jones (No 4) [2010] FCA 909
Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2003) 133 FCR 279; [2003] FCA 1501
Australian Securities and Investment Commission v Matthews (1999) 32 ACSR 404; [1999] FCA 803
Australian Securities and Investments Commission v Reid (No 2) [2006] FCA 700
Barbaro v R (2014) 253 CLR 58; [2014] HCA 2
Bovis Lend Lease Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 650
Connect TV Pty Ltd v All Rounder Investments Pty Ltd (No 4) [2013] FCA 393
Evenco Pty Ltd v Amalgamated Society of Carpenters, Joiners, Bricklayers and Plasterers of Australasian Union of Employees, Queensland [1999] QSC 77
Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118
Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1985) 5 FCR 169
Gallagher v Durack (1983) 152 CLR 238
Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319
Infa-Secure Pty Limited v Crocker [2015] FCA 830
Jones v Toben (No 2) [2009] FCA 477
Metcash Trading Limited v Bunn (No 6) [2009] FCA 266
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19
Pennicott Wilderness Journeys Pty Ltd v Tasmanian Cruises and Charters Pty Ltd (in liq) [2013] FCA 966
Plastec Australia Pty Ltd v Plumbing Solutions & Services Pty Ltd (No 4) [2012] FCA 657
R v Harris (2001) 122 A Crim R 241; [2001] SASC 227
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150; [1998] FCA 270
Sage, an examiner appointed under s 46B of the Australian Crime Commission Act 2002 v ZZ (No 2) [2015] FCA 450
Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596; [2011] FCAFC 17
Vaysman v Deckers Outdoor Corporation Inc (2014) 222 FCR 387; [2014] FCAFC 60
Date of hearing: 25 February 2016 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 44 Counsel for the Applicant: Mr C Johnstone Solicitor for the Applicant: Chrysiliou Lawyers Counsel for the Respondent: Mr B Kidston ORDERS
QUD 9 of 2015 BETWEEN: INFA-SECURE PTY LIMITED (ACN 149 173 660)
Applicant
AND: DEBRA ANN CROCKER
Respondent
JUDGE:
REEVES J
DATE OF ORDER:
4 MARCH 2016
THE COURT DECLARES THAT:
1.The respondent is guilty of contempt of this Court in that, being aware of the undertaking she gave to the Court on 12 January 2015 that until trial or earlier order, she would not, whether by herself, her agents or representatives communicate with any person regarding the subject matter of proceeding QUD 647 of 2014 or of proceeding QUD 9 of 2015 save:
(a)to seek legal advice;
(b)to serve a document filed in the Court on a party to either proceeding; or
(c)otherwise by way of service, including originating service,
(“the Undertaking”) on 27 occasions between 15 January 2015 and 28 February 2015 she communicated by email with persons regarding the subject matter of proceeding QUD 647 of 2014 and of proceeding QUD 9 of 2015 for purposes other than to seek legal advice, to serve a document filed in the Court on a party to either proceeding, or otherwise by way of service.
2.The respondent is guilty of contempt of this Court in that, being aware of the Undertaking on two occasions in July 2015 she communicated by email with persons regarding the subject matter of proceeding QUD 647 of 2014 and of proceeding QUD 9 of 2015 for purposes other than to seek legal advice, to serve a document filed in the Court on a party to either proceeding, or otherwise by way of service.
THE COURT ORDERS THAT:
3.The respondent be imprisoned for a period of 13 weeks commencing from 4 March 2016 the first two weeks of which is to be served in any event.
4.A warrant issue for the respondent’s arrest and committal to prison for the period of two weeks described in Order 3 above.
5.The balance of the period of imprisonment described in Order 3 above shall be suspended for a period of three years calculated from 18 March 2016 on the condition that if, during that period of three years, the respondent again breaches the Undertaking, or the order of 13 November 2015 in the same terms, she will serve all or part of the remainder of the period of imprisonment described in Order 3 above as a judge directs.
6.There be liberty to the applicant to apply in the event that the respondent does not comply with the condition in Order 5 above.
7.The respondent is to pay the applicant’s costs of and incidental to the applicant’s applications filed 10 March 2015 and 30 July 2015 on an indemnity basis and the applicant may tax this order forthwith notwithstanding r 40.13 of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REEVES J:
INTRODUCTION
On 13 August 2015, I found Ms Crocker guilty of 27 charges of contempt of this Court, relating to 27 breaches of an undertaking she gave to this Court on 12 January 2015, which breaches occurred between 15 January and 28 February 2015: see Infa-Secure Pty Limited v Crocker [2015] FCA 830 (Crocker). Because of the nature of Ms Crocker’s contempts, under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), I ordered that, until further order, my reasons for judgment be suppressed from publication.
On 13 November 2015, Ms Crocker pleaded guilty to two further charges of contempt of this Court involving breaches of the same undertaking, which breaches occurred during July 2015. All of these breaches related to a series of email communications Ms Crocker sent to various retailers in January, February and July 2015 making serious allegations about Infa-Secure, its personnel and its lawyers. Those emails included assertions that Infa-Secure and the persons mentioned above were guilty of theft and fraud, among many other things.
These reasons explain why I have decided to impose the following sentence on Ms Crocker for these 29 counts of contempt of this Court:
(a)that she be imprisoned for a period of 13 weeks;
(b)provided she is of good behaviour for a period of three years, that she only be required to serve two weeks of this term of imprisonment.
I also propose to order that Ms Crocker pay Infa-Secure’s costs of these contempt proceedings, to be taxed on an indemnity basis, and that those costs be taxed forthwith.
RELEVANT PRINCIPLES ON PUNISHMENT FOR CONTEMPT
Section 31(1) of the Federal Court Act sets out this Court’s power to punish a person for contempt. It provides that this Court has the same powers as are possessed by the High Court of Australia in respect of contempts of that Court. The High Court’s power to punish contempts is set out in s 24 of the Judiciary Act 1903 (Cth).
The contempt power is an inherent incident of the exercise of the judicial power of the Commonwealth. It protects “the power and authority of the judicature to declare authoritatively the rights and liabilities of parties, and to enforce those rights and liabilities according to law”: see Sage, an examiner appointed under s 46B of the Australian Crime Commission Act 2002 v ZZ (No 2) [2015] FCA 450 (Sage) at [3] per Rares J. It is a necessary power to ensure that persons respect the orders of the Court, and are not free to flout or ignore their obligations to obey the law: see Sage at [4]. As the authority of the law rests on public confidence, there is therefore considerable public interest in vindicating the authority of the Court and maintaining respect for the law: see Gallagher v Durack (1983) 152 CLR 238 (Gallagher) at 243 per Gibbs CJ, Mason, Wilson and Brennan JJ and Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 (Mudginberri Station) at 114 per Gibbs CJ, Mason, Wilson and Deane JJ. There is, therefore, an “armoury of remedies available to a superior court” to punish for contempt of court: see Mudginberri Station at 115.
This wide armoury of remedies is necessary to meet the “exigencies of particular circumstances” so that the chosen remedy is effective in bringing the contempt to an end: see Mudginberri Station at 114. It includes the power to:
(a)commit a contemnor to prison for an indefinite period of time: see Gallagher at 245; and Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1985) 5 FCR 169 (Flamingo Park) at 178 per Wilcox J;
(b)to impose a fine for a wilful breach of an order, or undertaking: see Mudginberri Station at 109–113; and Flamingo Park at 178;
(c)to order the sequestration of the assets of a contemnor: Mudginberri Station at 115–116; or
(d)to suspend, on condition, any sentence of imprisonment that might be imposed: see Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd (Federal Court of Australia, Drummond J, 6 November 1998, unreported); and Australian Securities and Investment Commission v Matthews (1999) 32 ACSR 404; [1999] FCA 803 (Matthews) at 411 per Sackville J.
In Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 (Pelechowski), Kirby J outlined a number of general propositions which govern punishment for contempt, as follows:
147In approaching this submission, it is essential to remember a number of general propositions which govern punishment for contempts of the kind in question here where the punishment is not limited by statute but is at large. In determining the order which is appropriate to the contempt found, the Court must take into account those general principles which govern the sentencing of persons convicted of criminal offences which are apt to the peculiar character of contempt. The underlying purpose of the law on this form of contempt is to vindicate the due administration of justice. Contempts of the kind illustrated in this case may be technical, wilful but without a specific intent to defy the authority of the Court and contumacious. In the last category a serious act of deliberate defiance of judicial authority is evidenced.
148Conceding that such categories of contempt may sometimes overlap, in a case of a technical contempt, where the contemnor has offered an apology which the court accepts, it will sometimes be sufficient to make a finding of contempt coupled with an order for the payment of costs. Where a wilful contempt is shown, in the sense of deliberate conduct but without specific intent to defy judicial authority, a finding of contempt and an order for the payment of costs may not be sufficient. In such a case, a fine (and sometimes more) may be needed to vindicate the authority of the court. But in a case of contumacious defiance of a court’s orders and authority, it will frequently be appropriate for a custodial sentence to be imposed as a response to an apparent challenge to the authority of the law.
149Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, “serious and lasting damage to the fabric of the law may result”. Obviously, the culpability of the contemnor is relevant to the order which must be made. The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner.
(Citations omitted; emphasis added)
To similar effect, in Australian Competition and Consumer Commission v Contact Plus Group Pty Ltd (in liq) (ACN 086 261 798) (No 2) (2006) 232 ALR 364; [2006] FCA 695, Young J said:
26It is not necessary to prove any subjective intent to disobey an order of the court: INF04PC at [10]; Hughes at [20]. A deliberate commission or omission in breach of an injunctive order constitutes wilful disobedience and will amount to a contempt. Such a contempt is usually classed as a civil contempt. Depending on the circumstances, a deliberate act in disobedience of an order can amount to a criminal contempt. A contempt which is the result of an act of defiance, resulting in a deliberate breach of a court order, can be described as contumacious and as criminal in character: see Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 108; 66 ALR 577 at 584 (Mudginberri); Holloway at CLR 530; ALR 405.
27In Mudginberri, the High Court said (at CLR 113; ALR 588):
It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.
In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 at [45] (Advan), Gillard J said that it is not a defence to a contempt proceeding to show that the disobedience came about by some casual or accidental or unintentional act; put another way, it is no part of the prosecution's proof to establish that the act or omission which breached the order was something that was not casual or accidental and was intentional. Gillard J said that the true meaning of the High Court’s observation in Mudginberri is that if the evidence revealed that the breach was casual or accidental and unintentional, that would be relevant to whether or not the court should exercise its contempt jurisdiction. If the court is of the view that the charge of contempt is trivial or minor and lacks substance, or that the alleged contempt was casual or inadvertent and unintentional, even though technically established, the court would have a discretion to decline to exercise its jurisdiction. This accords with the views expressed by the Court of Appeal in Victoria in Re Perkins; Mesto v Galpin [1998] 4 VR 505 at 512-13.
(Emphasis added)
In Australian Competition and Consumer Commission v Jones (No 4) [2010] FCA 909 (Jones), Logan J referred to the summary of sentencing considerations outlined by Spender J in Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2003) 133 FCR 279; [2003] FCA 1501, as follows (at [4]):
(a)The relative seriousness of the contempt, which is determined by the extent to which the contemnor appreciated that a contempt was being committed: Australian Competition and Consumer Commission v Info4PC.com Pty Ltd (2002) 121 FCR 24.
(b)Whether the contemnor subjectively intended to disobey the order: Attorney-General v Times Newspapers Ltd [1992] 1 AC 191; Australian Competition and Consumer Commission v Hughes [2001] ATPR 41-807; and Info4PCCom.
(c)The importance of bringing home to the contemnor the seriousness of the contempt: Hughes; Info4PCCom.
(d)Whether the contemnor has offered any explanation or apology for his conduct: Gallagher v Durack (1983) 152 CLR 238, per Gibbs CJ, Mason, Wilson and Brennan JJ at 245.
(e)An acknowledgment by the contemnor that a contempt was committed may be a mitigating factor: Matthews.
Tracey J also provided a helpful summary of the relevant considerations in Bovis Lend Lease Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 650 (Bovis Lend Lease), as follows (at [6]):
ŸThe contemnor’s personal circumstances;
ŸThe nature and circumstances of the contempt;
ŸThe effect of the contempt on the administration of justice;
ŸThe contemnor’s culpability;
ŸThe need to deter the contemnor and others from repeating contempt;
ŸThe absence or presence of a prior conviction for contempt;
ŸThe contemnor’s financial means; and
ŸWhether the contemnor has exhibited general contrition and made a full and ample apology.
There are many other authorities containing similar observations, including Australian Competition and Consumer Commission v Info4pc.com (2002) 121 FCR 24; [2002] FCA 949 (Info4pc.com) at [130]–[141] per RD Nicholson J, Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319 at [55] (Hughes) and Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596; [2011] FCAFC 17 (Vaysman) at [43]. I have had regard to these authorities and the principles outlined in them in determining the sentence that should be imposed on Ms Crocker.
THE MATERIALS RELIED UPON FOR SENTENCING
Introduction
Before outlining the materials relied upon by the parties in respect of sentencing, it is important to record that, because Ms Crocker had been self-represented throughout this proceeding and remained so at the time I found her guilty of the 27 charges of contempt in August 2015 and, given the extent and seriousness of her contempts, there was a distinct possibility that she may be ordered to serve a period of imprisonment, I decided to refer her to a lawyer for legal assistance in accordance with r 4.12 of the Federal Court Rules 2011 (Cth). Sometime thereafter, and before she pleaded guilty to the two further charges of contempt in November 2015, Mr Kidston of counsel began acting for her on a pro bono basis. It is appropriate that I record the gratitude of the Court for the pro bono assistance that he has been able to provide to Ms Crocker.
Ms Crocker’s materials
Ms Crocker swore and filed two affidavits containing materials relating to this sentencing exercise. Both affidavits annexed a number of medical reports and character references.
In the first affidavit, Ms Crocker deposed to being 51 years of age, being unemployed and receiving New Start Allowance of $490 per fortnight. She said that she was a divorced person with six children aged from 20 to 30 years and four grandchildren. She said she lived in rental accommodation which she shared with one of her daughters. She said she owned no real property and had no significant savings. She said her only assets were her household and personal effects. She said that she cared for two of her grandchildren three afternoons and two nights per week. However, she said that this commitment may increase because her daughter has recently obtained a position as a trainee paramedic and, in that position, she is likely to be required to work on a 24 hour roster doing two to four shifts of eight to 12 hours per week. She claimed that her daughter cannot afford to pay for childcare and there is no one else available to care for those two grandchildren if she is unable to undertake that role. She said that she also cares for her other two grandchildren, who are the twin daughters of her eldest daughter. She said that daughter works as a nurse approximately two to four night shifts per month and her husband is employed as a transport worker working shift work as well. She claimed that they, too, cannot afford childcare and she is the only person able to care for those two grandchildren while their parents are at work.
Ms Crocker deposed to having been the victim of child abuse in her teenage years while attending high school at the Christian Outreach College. She said that the abuse she had suffered had had a profound effect on her. She claimed that in May 2014 she gave evidence about her experiences to the Royal Commission into Institutional Child Abuse.
In her first affidavit, prepared in mid-November 2015, with the assistance of her pro bono counsel, Ms Crocker offered an unreserved apology to the Court for her “numerous breaches of my undertaking”. She said that “I now fully appreciate the significance of giving an undertaking to the Court and in particular the need for undertakings to be honoured for the proper administration of justice”. She also offered an apology to the other parties to this proceeding and her own proceeding for “making the gratuitous commentary and other accusations and unreasonable statements in my correspondence with them”. She said that she appreciated that “much of my correspondence with Mr Matthew Horsfall [of Infa-Secure] and his solicitor Ms Kerry Chrysiliou has been, at times, rude, provocative and contained gratuitous commentary about Mr Horsfall’s religion”. She apologised for this conduct. She said: “I now understand that the way I have been conducting myself in this proceeding has been seriously misguided and inappropriate”. She accepted that she had “become somewhat obsessed with this litigation” and, as a consequence, she had “lost perspective and my judgment has been seriously affected”. She concluded by stating that, if she were able to continue to pursue the remaining part of her own proceeding, “it is my intention to do so in a more restrained, polite and professional manner”. She added that “I understand that I remain bound by the undertaking. It is my intention to comply strictly with it until such time as I am released from it.”
Ms Crocker’s second affidavit, prepared in early February 2016, had attached to it a medical report dated 3 August 2005 prepared by Dr Peter Mulholland, a psychiatrist. This report was obtained for the purpose of litigation Ms Crocker was pursuing in 2005, which she later discontinued. In Dr Mulholland’s report, he opined that:
In formal diagnostic terms [Ms Crocker] could be regarded as having an Axis 1 diagnosis of:-
Ÿchronic dysthymic disorder
Ÿchronic generalised anxiety disorder
Ÿchronic post traumatic stress disorder.
She has an Axis II diagnosis of:-
Ÿpersonality disorder (not otherwise specified - NOS) with emotionally vulnerable features
(Emphasis in original)
In her second affidavit, Ms Crocker claimed that she continues to suffer the symptoms of these disorders to the present time. That affidavit also had two reports annexed to it of Ms Alison Tunny, a registered psychologist. Those reports were both prepared in January 2016 (16 January and 31 January). In the first report, Ms Tunny concluded that Ms Crocker was “suffering from general anxiety disorder, post traumatic stress disorder, chronic dysthymic disorder - depression and some obsessive compulsive disorder traits.” However, she went on to say that “please be aware that these indications are mainly from self reporting”. Nonetheless, she said she had “no reason to believe that [Ms Crocker] is misrepresenting the truth”. She added that these conditions were long standing and had not “just emerged recently”. In her second report, Ms Tunny confirmed in general terms her diagnoses as outlined above and added that: “If I was able to confirm a diagnosis of histrionic and borderline personality disorder I would have to say that [Ms Crocker] has a skewed perception of her role in court proceedings and the the (sic) Judges role.” However, she again offered the qualification that these opinions were based upon a one hour assessment of Ms Crocker and reading seven lengthy emails from her. Of some importance to sentencing, Ms Tunny opined that Ms Crocker “showed no lack of understanding of the nature of the undertaking. She does state that she was confused though and had trouble with the complexity of the proceedings.”
Infa-Secure’s materials
Infa-Secure relied upon two affidavits by Mr Van Der Westhuizen, a solicitor employed by Chrysiliou Lawyers, the firm acting for Infa-Secure in this proceeding. It also tendered a “verdict and judgment record” relating to the disposition of two charges against Ms Crocker for using a carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). Those offences occurred in the period 9 April 2013 to 11 January 2014 and involved Mr Horsfall of Infa-Secure and Ms Chrysiliou, its lawyer. Ms Crocker pleaded guilty to both charges. No conviction was recorded against her and she was released on condition that she was to be of good behaviour for a period of two years secured on her own recognisance in the sum of $500. That period commenced 27 June 2014 and obviously has not yet expired.
Mr Van Der Westhuizen’s second affidavit contained the details of a number of emails Ms Crocker had sent in September and October 2015 to various retailers in which Ms Crocker made similar allegations to those made in her emails the subject of the various contempts described above, including claims that Infa-Secure was guilty of theft and fraud. It should be noted that these emails have not been the subject of further charges against Ms Crocker and any further contempts associated with them have therefore not been proved beyond reasonable doubt. Nonetheless, they do provide some evidence that Ms Crocker may have continued to pursue the same course of conduct after July 2015 and up until October of that year.
Infa-Secure also relied upon the warnings Ms Crocker received from the Court from the outset of this proceeding about the consequences of her breaching her undertaking, including: the warning given to her by Dowsett J when she gave her undertaking on 12 January 2015; the warnings given to her by myself during the course of this contempt proceeding on 12 March 2015 and 11 June 2015; and the further warning given by myself on 21 August 2015 after she had been found guilty of 27 charges of contempt on 13 August 2015. It also relied upon the many warnings Infa-Secure’s lawyers gave to her in their correspondence with her.
THE CONTENTIONS
On behalf of Ms Crocker
Ms Crocker’s pro bono counsel placed a deal of weight on the fact that Ms Crocker’s conduct in breach of her undertaking had ceased from about October/November 2015 when he began to advise her and was able to impress upon her the error of her ways. In support of this contention, he pointed out that, in her affidavit of mid-November 2015, Ms Crocker had offered an unreserved apology to the Court and all the parties involved in this proceeding and in her proceeding. In deciding whether or not Ms Crocker’s various contempts were contumacious, he submitted that the following matters should be taken into account:
(a)all of the contempts arose in the context of a lay person attempting to vigorously prosecute what she believed to be a legitimate claim without the assistance of a lawyer where the litigation involved such complex intellectual property issues that she was “out of her depth”;
(b)the emails concerned were primarily confined to the parties to the litigation and were not published to the world at large;
(c)the contempts were not directed at, or concerned with, the Court;
(d)the content of her emails did not interfere directly with the administration of justice, although they did undermine the Court’s authority;
(e)the emails largely consisted of her repeating claims she had previously made about Infa-Secure and were therefore unlikely to have resulted in any additional damage to it; and
(f)the contempts did not result in any personal gain or advantage for her.
While he accepted that, in all the circumstances, Ms Crocker’s contempts were at the most serious end of the civil contempt spectrum, Ms Crocker’s counsel submitted that she should not be ordered to serve a term of actual imprisonment, but instead should be ordered to serve a term of three months’ imprisonment which should be wholly suspended for a period of 24 months on condition that she be of good behaviour in that period. Three reasons were advanced for the appropriateness of this penalty:
(a)Ms Crocker’s broader personal circumstances as outlined in her affidavits, including the effect that a term of actual imprisonment would have on Ms Crocker’s family, in particular that it would prevent her fulfilling the childcare duties described above;
(b)imprisonment should be treated as a punishment of last resort and Ms Crocker’s poor financial circumstances and her inability to meet a fine should not be used as justification for imposing a prison sentence as the only other option available;
(c)as mentioned above, that the offending conduct had ceased from about the time she began to receive assistance from her pro bono counsel in October/November 2015.
On behalf of Infa-Secure
Based upon the findings made in Crocker, Infa-Secure submitted that the Court should find that Ms Crocker’s conduct was deliberate, calculated, and contumacious. It highlighted the following findings:
(a)that Ms Crocker’s two grounds of defence had been rejected by the Court as unmeritorious. The first ground – that her undertaking did not prevent her from communicating with “a party in one way or another”, or “retailers who … knew that [she] was commencing legal action”, or “anyone else who already knew about the case” – was rejected because such a construction of her undertaking was not reasonably open: see Crocker at [170]. And, in any event, Ms Crocker had sent her email communications to persons who were not within her adopted categories above (see Crocker at [174] and [175]). The second ground – that she thought her undertaking no longer applied – was rejected for five separate and distinct reasons: see Crocker at [177]–[183];
(b)that Ms Crocker had, in some instances, made a “vain attempt to cloak her communications” with a purpose permitted by the undertaking (see Crocker at [193]) and, in other instances, she did “not appear to bother cloaking them” with any permissible pretext (see Crocker at [194]);
(c)that Ms Crocker’s conduct could not be characterised as “casual, accidental or unintentional”, not least because of her “spurious attempts to justify her conduct” and the “extravagance of the language” she used in most of her emails (see Crocker at [197]–[198]); and
(d)that some of the statements in Ms Crocker’s emails demonstrated that she was aware that her conduct was probably in breach of her undertaking (see Crocker at [201]).
At this point it is worth interpolating that, since all of these matters were established beyond reasonable doubt in Crocker, I may take them into account in determining an appropriate sentence: see R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
Infa-Secure contended that, because Ms Crocker knew what her undertaking meant, and had no reasonable basis for believing that it did not apply to her email communications, she knew from the warnings she had received of the consequences of breaching it and that she had therefore acted wilfully and deliberately in breach of it, she should be sentenced to a term of actual imprisonment to reflect the serious and contumacious nature of her contempt and to uphold the authority of the Court.
On the question of Ms Crocker’s poor financial circumstances, Infa-Secure submitted that her impecuniosity will coincidentally mean that it will suffer a significant loss because it will receive no compensation for the considerable legal costs it has incurred in prosecuting these contempt charges since any costs order against her will be worthless. It submitted it would therefore be perverse to take into account Ms Crocker’s poor financial circumstances in reduction of the sentence for her contempts.
Infa-Secure also contended that:
(a)Ms Crocker’s apology was belated in that it was given in November 2015 after Infa-Secure had been put to the expense of prosecuting the contempt charges against her;
(b)further, her apology should not be treated as genuine because it was given in an attempt to avoid being sentenced to a period of imprisonment;
(c)the Court should take into account the repetition of similar conduct in September and October, as evidenced by the affidavit of Mr Van Der Westhuizen;
(d)the medical reports, particularly those of Ms Tunny, were highly qualified as to the nature and extent of Ms Crocker’s psychological condition. Nonetheless, they did show she understood the nature of her undertaking;
(e)Ms Crocker had been charged with two similar offences under the Criminal Code Act 1995 (Cth) relating to Mr Horsfall and Ms Chrysiliou in 2014 and placed on a two year good behaviour bond;
(f)the 27 counts upon which Ms Crocker has been found guilty related to conduct that occurred over a two month period;
(g)the two charges of contempt to which Ms Crocker has pleaded guilty significantly compounded her initial contempts because they related to conduct that occurred five months later, that is in July 2015, they related to the same undertaking and they occurred despite the numerous warnings she had received about the consequences of committing further breaches of her undertaking.
Infa-Secure did not provide any submissions on the appropriate range of penalties, no doubt recognising the criminal nature of contempt proceedings and complying with the decision of the High Court in Barbaro v R (2014) 253 CLR 58; [2014] HCA 2 (Barbaro). Nonetheless, it put forward a list of comparable cases, consistent with Barbaro: see at [42]. The following is a summary of the penalties imposed in those cases together with two cases put forward by Ms Crocker’s counsel.
In Anderson v XLVII (2015) 319 ALR 139; [2015] FCA 19 (Anderson), the respondent had refused to answer a question asked by an Australian Crime Commission examiner. He was charged with eight counts of contempt. He later purged his contempt by agreeing to be examined and pleading guilty to each charge. Finding that his contempts were serious, that they involved predetermined defiant conduct, and that a fine would not achieve the necessary punitive and deterrent purposes, White J sentenced the respondent to four months’ imprisonment (see Anderson at [56]–[58]). However, his Honour ordered that the warrant for the respondent’s imprisonment lie in the Registry for 15 months and be discharged if the respondent was of good behaviour during that period. Material to his Honour’s decision to suspend the respondent’s sentence were the facts he had purged his contempt, he had pleaded guilty, he was young, and he was the primary carer for his grandmother.
In Plastec Australia Pty Ltd v Plumbing Solutions & Services Pty Ltd (No 4) [2012] FCA 657 (Plastec), the respondent breached an order of this Court which prohibited him from publishing or making known certain information to any person. He was charged with two counts of contempt. Logan J imposed a sentence of imprisonment on him, but suspended it in circumstances where his Honour did not find his conduct to have been contumacious. His Honour also took into account the fact that he had pleaded guilty, he had expressed genuine remorse, he was the only source of income for his family of four young children, and serving time in prison was likely to make it impossible for him to continue in his position as a council plumbing inspector. His Honour observed that there was “cause for optimism” (Plastec at [33]) that the conduct would not reoccur.
In Australian Securities and Investments Commission v Reid (No 2) [2006] FCA 700, Lander J imposed a sentence of nine months’ imprisonment for breaches of a court order and an undertaking given to the Court that the respondent would not be involved in the management of a corporation. The salient features affecting that penalty included that previous findings of contempt had been recorded against the respondent for which a suspended sentence of imprisonment was imposed, his wilful disobedience of the undertakings given to the Court, it was the third occasion of a breach of an order of the Court, no remorse or contrition had been demonstrated, he showed no insight into his conduct or the seriousness of it, and he had already spent a period of two to three months in prison.
In Jones v Toben (No 2) [2009] FCA 477 (Toben), Lander J sentenced the respondent to three months’ imprisonment for 24 counts of contempt arising from publications he made on the internet in contumelious disregard of court orders made in 2002 and undertakings he had given to the Court in 2007. His Honour declined to suspend that sentence. The publications were anti-Semitic and offensively referred to the Jewish faith of certain prominent citizens. While the respondent apologised for his conduct, Lander J concluded that that apology had only been given to influence the penalty. His Honour also said that the respondent “always knew that his conduct would undermine the authority of the Court” (see Toben at [69]). Other features affecting the sentence included the respondent’s failure to explain his conduct, that he had continued to breach the orders and the undertaking after the hearing of the contempt charges but before judgment, that he had demonstrated a lack of remorse and contrition, and, because of the circumstances, his Honour considered there was a particular need for personal deterrence.
In Vaysman v Deckers Outdoor Corporation Inc (2014) 222 FCR 387; [2014] FCAFC 60 (Vaysman No 2), the respondent was found guilty of 10 charges of contempt of court. On the most serious count, he was sentenced to three years’ imprisonment. On the other counts, he was sentenced to periods of imprisonment of between seven days and six months. All of the sentences were ordered to be served concurrently. The charges involved Mr Vaysman selling counterfeit products contrary to orders of the Court. Mr Vaysman applied for an extension of time to appeal his sentence on a number of grounds, including that it was manifestly excessive and that the sentencing judge erred in finding that his contempt was one of the worst to come before the Court. In determining that application, both Dowsett J (Vaysman No 2 at [46]–[48]) and Besanko J (Vaysman No 2 at [128]–[135]) referred to a number of cases where imprisonment for contempts of court was imposed. Dowsett J observed that he had very little difficulty with the view that this was one of the worst cases of contempt to come before the Court. His Honour observed that Mr Vaysman’s contempt was contumacious and continued over a period of four years, that he had demonstrated little to no remorse for, or insight into, his misconduct, and that he had left the country to avoid the consequences of his actions. His Honour considered it constituted a “serious and sustained attack upon the legitimacy of the administration of justice” and called for “condign punishment” (see Vaysman No 2 at [41]–[43]). After reviewing the relevant authorities, Dowsett J observed that, but for a complication on the facts relating to a prior award of damages, his Honour would have upheld the original sentence of three years’ imprisonment (see Vaysman No 2 at [65]). Nonetheless, because of this complication, his Honour decided that a sentence of imprisonment of two years and three months should be imposed. Besanko J (with whom Siopis J agreed) went through a similar process of reviewing the relevant authorities and decided that, in the circumstances, a sentence of two years’ imprisonment was warranted.
Ms Crocker’s counsel relied upon two comparable cases: ASIC v Matthews [2000] NSWSC 392 (Matthews [2000]) and Connect TV Pty Ltd v All Rounder Investments Pty Ltd (No 4) [2013] FCA 393 (Connect TV). In Matthews [2000], the defendant was found guilty of nine counts of contempt in failing to comply with court orders preventing the publication of certain security reports on an internet website. It was of some significance to sentencing that the defendant had been found guilty of contempt in separate proceedings, approximately nine months earlier, for which he was sentenced to a period of two months’ imprisonment. That sentence was suspended on the condition that he committed no further breach within a period of 12 months. In ordering that the defendant serve three months’ imprisonment, the Court took into account the fact there were no mitigating circumstances, he had not offered an apology and he was well aware that he was acting in breach of the orders of the Court.
In Connect TV, the respondent was found guilty of multiple counts of contempt in failing to comply with orders of the Court relating to the use of certain Russian television services. The respondent was apologetic, but had not demonstrated any remorse and had continued to challenge the orders of the Court. However, the Court accepted that the respondent misunderstood the effect of the orders and was misadvised about them. The Court also took into account the respondent’s poor health. On the most serious count, the respondent was sentenced to one month’s imprisonment, which was wholly suspended on the condition that she refrain from breaching the orders of the Court for a period of two years. On the other less serious counts, she was fined $10,000 and $2,000.
A CONTUMACIOUS, SERIOUS AND DELIBERATE DEFIANCE OF THE COURT’S AUTHORITY
I accept the general thrust of Infa-Secure’s contentions above. I am therefore satisfied that Ms Crocker’s conduct in committing her contempts of this Court was contumacious. To adopt the language of Kirby J in Pelechowski (see at [8] above), it was not merely a “technical” contempt, nor was it “wilful but without a specific intent to defy the authority of the court”. Rather, I consider Ms Crocker’s conduct evidenced a “serious act of deliberate defiance of judicial authority”. A number of circumstances have led me to this conclusion. In no particular order, they include the following.
Based upon the findings I made in Crocker (summarised at [25] above), I consider Ms Crocker committed the contempts fully intending to cause commercial harm to Infa-Secure. So much is apparent from the extravagant and scandalous language she used throughout her emails. And, I do not accept that those attacks were not motivated by personal gain. To the contrary, they were plainly directed to the retailers who traded with Infa-Secure to attempt to apply pressure to Infa-Secure to resolve Ms Crocker’s claims for compensation against it related to its use of the SECURAP device. Further, in sending those emails, I consider Ms Crocker deliberately breached her undertaking to the Court, fully understanding the nature and extent of the restrictions contained in it. Then she attempted to justify that conduct by advancing spurious grounds of defence when the first set of contempt charges were brought against her. Her contest of those charges subjected Infa-Secure to considerable expense in circumstances where her impecuniosity will mean that they are unlikely to obtain any compensation from any costs order made against her. In this respect, I consider there is merit in Infa-Secure’s submissions at [28] above. After the period encapsulating the initial set of 27 contempt charges in January/February 2015, she continued her offending conduct such that in July 2015 she committed two further contempts of a similar kind. Then, through her counsel, she accepted that this conduct did not cease until October/November 2015 when he eventually persuaded her about the error of her ways. In all, her contempts therefore spanned a period of approximately nine to 10 months. It is also significant that, in the period after she was found guilty of the first set of 27 charges, she claimed that she “still [did not] know how she committed contempt of court” and she filed a number of applications seeking to have those findings set aside.
While I recognise that imprisonment is to be regarded as a penalty of last resort, this contumacious and deliberate defiance of the Court’s authority over such a sustained period is so serious that I consider it warrants a period of actual imprisonment. Irrespective of Ms Crocker’s capacity to pay, I do not regard this case as one where a fine, either by itself, or in addition to any other penalty, would be appropriate. On the question of personal deterrence, I have also had regard to the fact that Ms Crocker has some relevant recent criminal history involving similar conduct directed to the same persons, namely Ms Chrysiliou and Mr Richard Horsfall. As is recorded above (at [20]), in mid-2014 she pleaded guilty to two charges of using a carriage service to menace, harass or cause offence to them. Significantly, she is still within the good behaviour period that was fixed as a condition of her release on those charges. I also reject the explanation Ms Crocker has offered for her conduct, namely that she was confused by the complexity of these proceedings. I do so, for the following reasons. First, it is apparent from Ms Tunny’s reports that, despite whatever confusion Ms Crocker may have experienced, she understood the nature of the undertaking she had given to the Court. Secondly, it was Ms Crocker who commenced the first proceeding in time in this Court, not Infa-Secure. In this sense, Ms Crocker has therefore brought any confusion she experienced on herself.
To attempt to avoid a penalty of actual imprisonment, it was submitted on Ms Crocker’s behalf that: her offending conduct ceased in November 2015; that she has since apologised to the Court, Infa-Secure and its lawyers; and that a period of actual imprisonment will adversely affect her family. I reject these submissions, for the following reasons. As to the first submission, ceasing conduct that should never have commenced may show that Ms Crocker has finally gained some insight into the seriousness of her contempts of this Court, but it does not provide a valid reason to allow her conduct to pass without an appropriate penalty to condemn her deliberate and sustained flaunting of the authority of this Court. As to the second submission, I consider there is merit in Infa-Secure’s submission that Ms Crocker’s long-delayed and last minute apology was more likely directed to her personal desire to avoid having to serve a period of actual imprisonment, rather than providing any cause for optimism about her not repeating such conduct in the future. As to the third, it is unfortunate that Ms Crocker’s family will, for a period, suffer as a consequence of her imprisonment. However, it is to be emphasised that that outcome is a direct consequence of Ms Crocker’s contempts coupled with her foolish refusal to heed the many warnings she received about the likelihood of such an outcome should she persist with that conduct. If she had heeded those warnings and purged her contempt in August 2015 when the first set of contempt findings were made against her, she may well have avoided it. Nonetheless, because of this factor and Ms Crocker’s personal circumstances more generally as outlined above, I have reduced the period of actual imprisonment to the minimum period I consider is necessary to achieve its required punitive and deterrent effect.
Finally, in fixing this penalty, I have also taken into account the comparable cases above (at [31]–[38]). While the sentence in each case turns on its own facts and circumstances, I note that, in respect of serious contempts of court such as Ms Crocker’s, a sentence of imprisonment is usually regarded as appropriate: see, for example, Jones at [20] per Logan J. Beyond that, the length of imprisonment depends entirely upon the circumstances of the particular contempts, as does the question of suspending that sentence for a period. Of course the power of this Court to suspend a sentence of imprisonment is clearly established: see Matthews at [29], Info4pc.com at [138] and Hughes at [55]. It is also worth adding that a suspended sentence of imprisonment is a real punishment: see Anderson and R v Harris (2001) 122 A Crim R 241; [2001] SASC 227.
CONCLUSION
For these reasons, I consider that the appropriate sentence for Ms Crocker’s 29 counts of contempt of this Court is that set out above (at [3]).
There remains the question of costs. It is apparent from the authorities that the usual order in respect of a contempt application is that the costs be paid by the contemnor on an indemnity basis: see Jones at [37], Info4pc.com, Bovis Lend Lease and Evenco Pty Ltd v Amalgamated Society of Carpenters, Joiners, Bricklayers and Plasterers of Australasian Union of Employees, Queensland [1999] QSC 77 per Chesterman J (affirmed on appeal: Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118). The reason for this approach is that the applicant is performing both a private and public service in prosecuting charges of contempt: see Mudginberri Station at 110. Indeed, even where the contempt has been found not to be contumacious, indemnity costs have been awarded: see Pennicott Wilderness Journeys Pty Ltd v Tasmanian Cruises and Charters Pty Ltd (in liq) [2013] FCA 966 per Marshall J. Although Ms Crocker’s financial circumstances are poor, that does not, in my view, provide a sufficient reason for declining to make the costs order in Infa-Secure’s favour. I will therefore order that Ms Crocker pay Infa-Secure’s costs of and incidental to this contempt proceeding on an indemnity basis. Furthermore, since this contempt proceeding is a separate and distinct part of this proceeding (r 42.11 of the Rules required it to be brought in this proceeding) and this costs order is in the nature of a final order, there is authority that Infa-Secure should be entitled to tax this costs order forthwith: see Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150; [1998] FCA 270 per Lehane J and, more recently, Metcash Trading Limited v Bunn (No 6) [2009] FCA 266 at [15] per Finn J. I will so order.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 4 March 2016
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