Infa-Secure Pty Ltd v Crocker (No 2)

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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…

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Details
Case
[2016] FCA 202
Decision Date

CaseChat Overview and Summary

In the case of Infa-Secure Pty Ltd v Crocker (No 2), the respondent, Ms Crocker, was found in contempt of court for her non-compliance with an undertaking given to the Federal Court of Australia. This non-compliance was deemed serious, deliberate, and contumacious. Ms Crocker's contempt proceedings followed her failure to comply with a court-ordered undertaking, leading to a sentence of imprisonment. The court was tasked with determining the appropriate penalty for Ms Crocker’s actions and deciding on the costs associated with the contempt proceedings.

The primary legal issues the court addressed included the appropriate sentence for Ms Crocker's contemptuous behaviour and whether to impose indemnity costs on her. The court considered the precedents for similar cases and weighed the severity and deliberate nature of Ms Crocker's non-compliance. Given the seriousness of the contempt, the court found that imprisonment was suitable, with a portion of the sentence suspended contingent on future compliance. The court also deliberated on the standard practice of awarding indemnity costs in contempt cases, concluding that despite Ms Crocker's financial difficulties, the usual order should stand.

The court’s reasoning led to a sentence where Ms Crocker was to serve a total of 13 weeks in prison, with the first two weeks mandatory and the remaining 11 weeks suspended for three years. The court justified the sentence by referencing similar cases where imprisonment was deemed appropriate for serious contempts. In terms of costs, the court ruled that Ms Crocker must pay Infa-Secure's costs on an indemnity basis, and it allowed for immediate taxation of these costs. This decision was based on the principle that the applicant was performing both a private and public service in prosecuting the contempt charges.

In conclusion, the court ordered that Ms Crocker be imprisoned for 13 weeks, with the first two weeks to be served immediately, and the remainder suspended for three years. Additionally, Ms Crocker was directed to pay the applicant’s costs on an indemnity basis, with the court permitting the immediate taxation of these costs. This comprehensive approach ensured that both the punishment for contempt and the financial implications for the contemnor were adequately addressed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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