Patrick Walker Commissioner for Fair Trading v Info4pc.Com Pty Ltd - [2001] WASC 212

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PATRICK WALKER COMMISSIONER FOR FAIR TRADING -v- INFO4PC.COM PTY LTD & ANOR [2001] WASC 212

CORAM: WHITE AUJ

HEARD: 13 JULY 2001

DELIVERED : 14 AUGUST 2001

FILE NO/S: CIV 2738 of 2000

BETWEEN: PATRICK WALKER COMMISSIONER FOR FAIR TRADING
Applicant (Plaintiff)
AND
INFO4PC.COM PTY LTD
First Respondent (First Defendant)
JAMES HAMILTON RAE
Second Respondent (Second Defendant)

Catchwords:

Contempt of court - Deliberate breach of undertaking given to the court - Turns on own facts

Legislation:

Nil

Result:

Both respondents guilty of contempt

Category: B

Representation:

Counsel:

Applicant (Plaintiff)  :        Mr J C Curthoys
First Respondent (First Defendant)          :        In person
Second Respondent (Second Defendant) :        In person

Solicitors:

Applicant (Plaintiff)  :        Ministry of Fair Trading
First Respondent (First Defendant)          :        In person
Second Respondent (Second Defendant) :        In person

Case(s) referred to in judgment(s):

Lord Wellesley v Earl of Mornington (1848) 11 Beav 180
Madeira v Rogette Pty Ltd [1990] 2 Qd R 357
Seaward v Paterson [1897] 1 Ch 545
Z Ltd v A-Z and AA-LL [1982] 1 QB 558

Case(s) also cited:

Foley v Herald-Sun TV Pty Ltd [1981] VR 315
Windsurfing International Inc v Sailboards Australia Ltd (1986) 19 FCR 110

WHITE AUJ : This is an application for an order for committal against each of the two respondents for their conduct in breaching the enforceable undertaking given by the first respondent to the Court on 29 December 2000.
On 29 December 2000, the first respondent, by its counsel, gave an undertaking to the Court that the respondent "will not make any withdrawals from its bank account(s) other than those in the ordinary course of business and will not make any cash withdrawals or cheques payable to cash or any payment to directors or associated entities for the period of the undertaking."
That undertaking was to continue until a special appointment was heard. It remains in force to date.
On the same day, on the instructions of one of the two directors of the first respondent, Johnson Williamson ("Williamson"), by facsimile transmission from an address in England, the Commonwealth Bank of Australia, Belmont branch, undertook an electronic international money transfer of $190,000 from the first respondent's bank account to an account in the name of T J Rae (a brother of the second respondent) at the Banco de Anderlucia, in Spain.
Thereafter, on 1 February 2001, the first respondent's bank, again acting on instructions conveyed by a facsimile transmission from Williamson, undertook an electronic international money transfer of $110,000 from the first respondent's bank account to the account in the name of T J Rae.
The application for committal is directed to the removal of the sum of $110,000 and not to the removal of the earlier amount of $190,000.
The later transaction was not in the ordinary course of business and was in breach of the undertaking given on behalf of the first respondent by its counsel.
In the circumstances, this amounted to a clear contempt of court by the first respondent.
The second respondent who was permitted by consent to represent the first respondent, argued that the breach was committed not by the first respondent but by Williamson acting alone. I do not accept that submission. A company can act only by its directors and in the present case, it is clear that the company breached the terms of its undertaking.
In the circumstances, I find the first respondent guilty of contempt of court.
I turn to consider the position of the second respondent.
The second respondent was appointed as a director of the first respondent on 15 August 2000. He filed certain affidavits in opposition to the motion for his committal. In an affidavit sworn on 4 May 2001, he described himself as "a non‑shareholding Director of" the first respondent. His affidavit reads as follows:
"1.I am a non‑shareholding Director of Info4pc.com Pty Ltd (first respondent) and am the second respondent in this case.
2.I have personal knowledge of the matters deposed in this affidavit, except where stated to be on information or belief, in which case I believe those matters to be true.
3.At the time of removal of amounts of $190,000 and $110,000 from the Bank accounts of Info4pc.com Pty Ltd, to the best of my knowledge I was not an authorized signatory to the Bank Account.
4.A letter removing myself from the bank records was sent to the Commonwealth Bank, Belmont Branch, by me via fax on 28th December 2000. A copy of this letter is annexed hereto and marked 'JR 1'.
5.At the time of removal of the funds in question from the Bank account of the First Respondent, to the best of my knowledge, I was no longer a Director of Info4pc.com Pty Ltd as Mr Johnson Williamson a share‑holding director of the Company had asked for my resignation. A copy of his email requesting my removal from the bank account is annexed hereto and marked 'JR2'.
6.I continued in my capacity as care taking general Manager of Info4pc.com Pty Ltd, after discussions with Mr Williamson, pending his return to Australia, which was expected in late January/early February 2001.
7.A copy of documentation removing me from the Company register was sent to ASIC by Mr Williamson on or around 16th January 2001. A copy of this documentation is annexed hereto and marked 'JR3'.
8.I was unaware that this removal was not effected until I received written confirmation from ASIC that my removal was to be disallowed. A copy of this correspondence is annexed hereto and marked 'JR4'.
9.I was aware of the removal of $190,000 from the Bank account of Info4pc.com Pty Ltd but was of the belief that these funds were to be used in the purchase of the next consignment of computers, which had been sourced at a better price in Europe.
10.I was unaware of the removal of $110,000 from the Bank account of Info4pc.com Pty Ltd until notified by phone by former counsel Mr David Sash of Jackson McDonald on or around 14th February 2001.
11.It is my belief that, as I was not party to either of these transactions, I cannot be held responsible for any Contempt of this Court."
In second, third and fourth affidavits sworn that day, he again described himself as "a non‑shareholding Director of" the first respondent. The second respondent filed yet another affidavit, sworn on 29 June 2001 and filed in this Court, again describing himself as "Non Share‑Holding Director" of the first respondent.
The second respondent was well aware of the undertaking given to the Court.
The business conducted by the first respondent was of dubious probity and it cannot be supposed that the second respondent was not, as a director of the first respondent, well aware of the nature of that business. It seems unnecessary at this stage for me to say any more as to the first respondent's business.
The second respondent's relationship with the first respondent was the subject of some unusual manoeuvres. By a facsimile transmission dated 27 December 2000, addressed to the Bank Williamson and Tim Rae said:
"Please accept this facsimile transmission as confirmation for the removal of James H Rae from the authorized signatories. This will leave only one signatory, being Johnson Williamson. From 31 December 2000, James H Rae will no longer be employed by Info4pc Pty Ltd, therefore, no instructions should be accepted by him henceforth. Thank you for your kind assistance."
There is Ms Green's note in the bank's files, written, it seems, on a yellow sticker slip placed on a bank document, headed "February", dated 12 January 2001 and reading
" James Rae rang. Not coming off authority. Dispute resolved. Faxes to come S"
It does not seem that there was any follow‑up to that message.
Despite that, it is clear that the second respondent remained as a director of the first respondent after that date and took an active part in the affairs of the first respondent. An affidavit sworn by the second respondent, apparently on 18 February 2001, filed in the Federal Court, discloses that he was then acting for the first respondent and giving instructions to the first respondent's solicitors in connection with the proceedings in the Federal Court.
The second respondent, under cross‑examination, admitted that, as at 30 December 2000, he was aware that the first respondent was not supposed to remove funds unless it was in the ordinary course of business. He did not take any steps to notify the Bank of the terms of the undertaking given by the first respondent to the Court.
A remarkable feature of this matter was the way in which the Commonwealth Bank officers acted. They were expressly notified of the terms of the undertaking before the remittance of $110,000 was made, by communications from the Perth Area Office of the Bank and were sent copies of relevant media reports citing the terms of the undertaking. No attention was paid to this by the Bank's officers. Furthermore, it was apparently the Bank's policy, recorded in an e‑mail message to the second respondent's wife in answer to a specific question, that: "You will need to obtain an original signed permission, faxes cannot be accepted for security reasons."
Despite that, the Bank acted on the faxed requests of Williamson to remit the moneys in question to the Spanish bank account of the second respondent's brother.
It is clear that the withdrawals from the bank account were effected by Williamson and T J Rae and not by the second respondent.
The applicant's evidence of the involvement of the second respondent was that of Susan Jane Green, an Operations Clerk at the Belmont Branch of the Bank. In the course of her employment she had dealt with the second respondent as a director and representative of the first respondent. In her affidavit, she stated that:
"5.On 27 December 2000 the Commonwealth Bank, Belmont Branch received a facsimile request from Mr Johnson Williamson, another director of the defendant company, to transfer $190,000.00 to a bank account in Spain. A copy of that request is annexed hereto and marked 'SJG2'.
6.The application was processed and money successfully transferred on 2 January 2001. The Commonwealth Bank's documentation supporting the transfer funds is annexed hereto and marked 'SJG3'.
7.On 25 January 2001 the Commonwealth Bank, Belmont Branch received a facsimile request from Johnson Williamson and Tim Rae, both directors of the defendant company to effect a further international money transfer for an amount of $110,000.00 to the same bank account held in Spain in the name of T J Rae. Copies of the request and the documentation supporting the transfer are annexed hereto and marked 'SJG4'.
8.I contacted the second defendant on 1 February 2001 on his mobile telephone, before effecting the transfer. As this was a facsimile request for a money transfer, I wanted to be sure that it was legitimate. I asked the second defendant for confirmation that the defendant company wished to proceed with the transaction and that the details were correct. The second defendant confirmed the transaction and so I proceeded to process it. Copies of the bank's transaction documents are annexed hereto and marked 'SJG5'.
9.In that conversation the second defendant, Mr Rae did not indicate to me any surprise at this transaction, nor that he was unaware of the transaction. The second defendant, Mr Rae did not inform me that there was any impediment to the transaction taking place. No mention was made by him to me of the undertaking made to this Honourable Court by the defendant company on 29 December 2001, a copy of which has now been shown to me."
The preceding request was also a facsimile request for a money transfer, but Ms Green had not required confirmation in relation to that transfer. Both were contrary to the Bank's standing instructions and a telephonic confirmation of the facsimile request would not have satisfied the Bank's requirements. The explanation by Ms Green of the reason for her having wanted to be sure that the second facsimile request was legitimate as it was "a facsimile request for a money transfer" was that she then had a different manager.
Ms Green wrote a note at the foot of the facsimile request received by her, the note reading:
"Confirmed James Rae
Mobile 0403362767
1-2-01 S"
It appears from Exhibit 6 that notes were kept of conversations that Ms Green had with various persons, including the second respondent on various dates during February 2001. These notes were handwritten on sheets of A4 sized paper. No other document was produced in which Ms Green had endorsed a note on the document itself, save for that which I have set out above.
Ms Green said that she had telephoned the second respondent at his mobile telephone number recorded in the Bank's file. She was cross‑examined and the following was said (transcript 46):
"When did you make the call and how did you verify it was me? ---Well, I've used your mobile phone from our records and I have spoken to you before.
Did you ask for any passwords or other verifying information? ---No, because I would have spoken to you before and I would have asked another staff member who had met you if I was speaking to the right person.
If my mobile was answered on that particular day, how could you be sure it wasn't one of my staff who answered the mobile phone? ---It was you.
It was me? --- Yes.
Because my mobile phone at the particular times over those months was always in the office and being answered by many members of staff?---Right, okay. I believed I was speaking to you."
She said that she had telephoned because her manager had asked her to do so.
The second respondent said that he could not recall the alleged conversation with Ms Green. He was asked whether he accepted that the conversation could have been held and replied that he did not believe so.
In his submissions supporting the applicant's claim against the second respondent, counsel submitted that the evidence of Ms Green should be accepted and, in that case, the second respondent had committed contempt by aiding and abetting the withdrawal of the funds, contrary to the undertaking given to the Court.

Was there a telephone conversation between Ms Green and second respondent on 1 February 2001?

The question here is as to whether I am satisfied beyond a reasonable doubt that the telephonic conversation deposed to by Ms Green did take place as she described it. Either it did, or Ms Green has committed perjury. As I see it, the only possible reason for Ms Green to have fabricated the telephonic conversation would have been to minimise the Bank's conduct in acting on the facsimile instructions and transferring the moneys in breach of the undertaking. I do not consider this a plausible reason for her to perjure herself and there was nothing in her demeanour or manner of giving evidence which led me to regard her as untruthful. I did not regard Ms Green as other than a witness to the truth and I accepted her evidence. The suggestion by the second respondent that she may have spoken to a member of his staff rather than to him, which she rejected, was, in the circumstances, far‑fetched. The second respondent said he did not recollect the conversation and did not believe that it had taken place. During cross‑examination, he suggested to Ms Green that he may have thought she was discussing the earlier withdrawal, but again, that suggestion, which Ms Green did not accept, was entirely improbable and the second respondent did not give any evidence to that effect.
Ms Green's explanation for the telephone call having been made in relation to the second although not in relation to the first withdrawal was that she had a new manager. This was not challenged and I accept it.
In the result, I am satisfied to the required standard that, on 1 February 2001, Ms Green spoke by telephone to the second respondent about the request for withdrawal of the $110,000.00 and that he confirmed that this was in order.

Was the second respondent a director of the first respondent when the funds were withdrawn?

In four affidavits sworn by the second respondent on 4 May 2001 and a subsequent affidavit sworn on 29 June 2001, all filed in this matter, the second respondent describes himself as a "non share‑holding Director of the first respondent. It appears from the extract of Company information, that the second respondent was appointed a director of the first respondent on 15 August 2000.
In an affidavit sworn on 18 February 2001 and filed in the Federal Court of Australia, the second respondent describes himself as "General Manager" and deposes to his actions on behalf of the first respondent.
On or about 16 January 2001, Williamson sent a notice to the Australian Securities & Investments Commission ("ASIC") recording that the second respondent ceased to hold office as a director of the first respondent as from 13 January 2001, a copy of which notice was sent to the second respondent and is annexed to one of his affidavits dated 4 May 2001. Subsequently, on 22 February 2001, ASI wrote to first respondent returning the form on the grounds that it had not been properly completed and pointing out that a proprietary company must have at least one director who resides in Australia.
The second respondent may well have believed that he was no longer a director of the first respondent during the period between 16 January and 22 February 2001. The fact is that he was a director during the relevant period. He was at all material times well aware of the terms of the undertaking given to the court. At all material times, he was the only director of the first respondent resident in Australia and it is apparent that throughout, he was actively in charge of the first respondent's business and operations - he says that he acted on instructions from Williamson and as a general manager.
In any event, his belief that he had ceased to be a director in January 2001, mistaken as it was, would not have excused his participation in the commission by the first respondent of its contempt of court.
Eveleigh LJ said, in Z Ltd v A-Z and AA-LL [1982] 1 QB 558 at 580,
" … I would first refer to Seaward v Paterson [1897] 1 Ch 545 as authority for my conclusion that mens rea based on knowledge of the quality of the act done (that is of being contrary to the injunction) is necessary where contravention of the terms of an injunction by a third party is involved."
His Lordship mentioned the remarks of North J in Seaward v Paterson [1897] 1 Ch 545 where, after referring to Lord Wellesley v Earl of Mornington (1848) 11 Beav 180, North J said:
"That is a clear decision that a person who knowingly assists another who is restrained by an injunction in doing acts in breach of the injunction is liable to committal for contempt, although the order of injunction was made in an action to which he was not a party."
Eveleigh LJ, at 578, expressed the view that:
"A third party will … be liable if he knowingly assists in the breach, that is to say if knowing the terms of the injunction he wilfully assists the person to whom it was directed to disobey it."
Eveleigh LJ went on to discuss the situation when a bank clerk who has no notice of the terms of an injunction pays out on a cheque after notice of an injunction freezing the account has been given to another person employed by the company and concluded:
"In my opinion, however, in all cases it should be necessary that the person to whom notice was given authorised the the payment or, knowing that the payment was likely to be made under a general authority derived from him, deliberately refrained from taking any steps to prevent it."
That statement is to be contrasted with what was said by de Jersey J in Madeira v Rogette Pty Ltd [1990] 2 Qd R 357 at page 8 of the Butterworths' report:
"While it is true that … Brightman J in Biba Ltd v Stratford Investments Ltd [1973] Ch 281, 287 confirmed that company directors will ordinarily be personally responsible for their company's contempt, whether or not they have actively brought about the conduct which amounts to the contempt, those cases do not deal with the separate question whether a director unaware of the relevant order may nevertheless be adjudged guilty of contempt merely because his company is guilty of contempt. I do not consider that a director ignorant that the order has been made should be found guilty of his company's contempt: the requirement of notice is too well entrenched to permit one to conclude otherwise … "

In the present case, there is no doubt that the second respondent was at all material times well aware of the terms of the undertaking given to the court by the first respondent. He must have known that the withdrawal of funds from the banking account would be in breach of the undertaking. The consequences of a breach of an undertaking to the court is not different, in my opinion, from those of a breach of an injunction.
It follows that I am satisfied that the second respondent is guilty of contempt of court in confirming to Ms Green that the first respondent wished to proceed with the transaction and that the details were correct, whereby he aided and abetted the withdrawal of the funds in question from the bank account, contrary to the terms of the undertaking to the court, of which he was well aware.
In the result, I find both respondents guilty of contempt of court and I shall receive submissions as to sentence from the parties.