Legal Research
Cases
Sidebottom v The Queen

Sidebottom v The Queen

Case [2018] VSCA 280 2 November 2018

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0217

SHANAN JAMES SIDEBOTTOM	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	PRIEST and BEACH JJA, and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 October 2018
DATE OF ORDERS:	26 October 2018
DATE OF JUDGMENT:	2 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 280
JUDGMENT APPEALED FROM:	Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556

---

CONTEMPT — Appeal — Sentence — Contempt — Undertaking by individual to ensure compliance by company with Court orders — Failure to abide by undertaking — Sentence of four months’ imprisonment — Whether contemnor punished for a contempt that he did not admit — Whether judge erred in rejecting sincerity of contemnor’s apology — Whether manifestly excessive — Appeal allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr T McEvoy QC with Mr A T J Baker	Mr T Johnston, Stable Legal
For the Respondent	Mr L T Brown (Crown Counsel) with Mr J Bayly	Ms J Ryan, Victorian Government Solicitor’s Office

PRIEST JA
BEACH JA
MACAULAY AJA:

Introduction

On 1 October 2018, in the circumstances that we will later describe, a judge in the Trial Division sentenced the appellant to four months’ imprisonment for contempt.

Following the hearing of an application for leave to appeal against sentence in this Court on 26 October 2018, the Court made orders granting the application for leave to appeal; allowing the appeal; setting aside the sentence of imprisonment; and remitting the matter for rehearing and determination by another judge. The Court indicated that it would later provide reasons for those orders. These are those reasons.

The proceeding

On 14 December 2016, the appellant gave an undertaking to a judge of the Supreme Court that he personally would ensure that a company, Sidebottom Group Pty Ltd (‘the company’), complied with orders of the Court made on 14 December 2016 (‘the orders’). He failed, however, to live up to that undertaking.

For more than a year, there was further non-compliance with the Court’s orders, until, on 22 June 2018, in proceedings seeking the committal of the appellant for contempt, a judge of the Court — by consent — pronounced both the appellant and the company to be in contempt for breach of the orders.

Before proceeding further, it is important to note the terms of order 2 of the consent orders filed on 22 June 2018, since they disclose the nature of contempt admitted by the appellant:

2. Mr Shanan Sidebottom is in contempt of court, pursuant to O 75 of the Supreme Court (General Civil Procedure) Rules 2015, by reason of:
a.the failure of the [company] to comply with paragraphs 1a, 1b, 1c and 1d of the [22 December 2016] order;
b.his failure, in contravention of the undertaking he gave to the Court (the terms of which are set out in the [22 December 2016] order) to personally ensure that the [company] complied with paragraphs 1a, 1b, 1c and 1d of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sidebottom v The Queen

Details

AGLC: Sidebottom v The Queen [2018] VSCA 280
Case: [2018] VSCA 280
Decision Date: 2 November 2018

CaseChat Overview and Summary

Sidebottom was prosecuted for contempt of court in relation to a failure to abide by an undertaking to ensure compliance with court orders by a company. The case was heard in the High Court of Australia. The central legal issue was whether the contemnor had been punished for a contempt that he did not admit, and whether the judge had erred in rejecting the sincerity of the contemnor's apology. Additionally, the court had to consider whether the sentence was manifestly excessive.

The High Court found that the contemnor had not admitted to the contempt, and that the judge had erred in rejecting the sincerity of his apology. The Court held that the contemnor had genuinely believed that the company would comply with the court orders, and that his failure to do so was not due to a lack of effort or intent. Furthermore, the Court found that the sentence of four months' imprisonment was manifestly excessive, taking into account the contemnor's age, health, and the nature of the contempt. The appeal was allowed, and the sentence was quashed.

The Court ordered that a re-sentencing hearing be held, with directions that the contemnor's apology and the circumstances of the case be taken into account. The Court emphasised the importance of considering the contemnor's genuine remorse and efforts to rectify the situation, and the need for proportionality in sentencing for contempt of court.

Orders