Sundarjee Bros (Aust) Pty Ltd v Sanjay Sundarjee

[2024] NSWSC 237

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sundarjee Bros (Aust) Pty Ltd v Sanjay Sundarjee [2024] NSWSC 237

Hearing dates:

4 March 2024

Date of orders:

12 March 2024

Decision date:

12 March 2024

Jurisdiction:

Equity - Commercial List

Before:

Nixon J

Decision:

(1) Declare that the Fourth Defendant was in contempt of this Court by engaging in the conduct described in each of:

(a) Charge 1 (excluding subparagraph (a) of that Charge); and

(b) Charge 2 (excluding subparagraph (a) of that Charge);

in the Statement of Charge at Annexure B to the Plaintiff’s Notice of Motion filed on 19 September 2023.

(2) Order that the Fourth Defendant pay a fine of $50,000.

(3) Order that Order 2 is to be suspended on the condition that the Fourth Defendant furnishes to the Registrar of the Equity Division, within 12 months of the date of this Order, proof that he has performed 100 hours of voluntary service for the Resourceful Australian Indian Network Inc.

(4) Order that the Fourth Defendant is to pay the Plaintiff’s costs of the Notice of Motion filed on 19 September 2023 in respect of the charges against the Fourth Defendant, on an indemnity basis, up until 16 November 2023.

(5) There be no order as to the costs of the Notice of Motion filed on 19 September 2023 in respect of the charges against the Fourth Defendant, from 16 November 2023.

Catchwords:

SENTENCING – penalties – criminal contempt – deletion of documents in order to prevent production pursuant to an order of the Court

COSTS – costs of separate sentencing hearing

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW), s 6

Supreme Court Rules 1970 (NSW), pt 55, r 13

Cases Cited:

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46

Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Circuit Finance Australia (recs and mgrsapptd) (in liq) v Sobbi [2010] NSWSC 912

Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 299; [2018] NSWCA 340

Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111

Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245; [1981] HCA 35

Matthews v Australian Securities and Investment Commission [2009] NSWCA 155

Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046

NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741

NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309

Sun v He (No 2) [2020] NSWSC 1298

Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596

Category:

Sentence

Parties:

Sundarjee Bros (Aust) Pty Ltd (Plaintiff)
Hasmukh Sundarjee (Fourth Defendant)

Representation:

Counsel:
D McLure SC with A Smith (Plaintiff)
J Hutton SC with S Hoare (Fourth Defendant)
Solicitors:
Mills Oakley (Plaintiff)
Arnold Bloch Leibler (Fourth Defendant)

File Number(s):

2022/00246803

Publication restriction:

Nil

JUDGMENT

Introduction

1. By Notice of Motion filed on 19 September 2023, the Plaintiff, Sundarjee Bros (Aust) Pty Ltd (SBA), seeks a declaration that the Fourth Defendant, Hasmukh Sundarjee, was in contempt of court by engaging in the conduct described as Charge 1 and Charge 2 in the Statement of Charge, which is Annexure B to the Notice of Motion. SBA also seeks an order that Mr Sundarjee be committed to imprisonment or otherwise punished for the contempt.

2. The Charges concern Mr Sundarjee’s conduct on the morning of 15 December 2022. On the previous day, the Court had made search orders against Mr Sundarjee (Search Orders). The Search Orders specified various “listed things” including, relevantly, Mr Sundarjee’s laptop and his mobile phone, as well as WhatsApp messages and emails between Mr Sundarjee and various persons (Listed Things). At 7:10am on 15 December 2022, the search party arrived at Mr Sundarjee’s home at xxx, Blakehurst, in New South Wales. He refused them entry while he obtained legal advice and sought a stay of the Search Orders. In the period between around 7:32am and 8:34am, Mr Sundarjee used his mobile phone to delete a number of WhatsApp conversations. In the period between around 7.45am and 9.34am, he used his laptop to delete a number of emails from his mailbox.

3. Charge 1 is that, in deleting the WhatsApp conversations, Mr Sundarjee:

1. wilfully disobeyed the Search Orders;

2. intended to prevent some or all of the deleted documents being produced pursuant to an order of this Court and made available for use as evidence in these proceedings; and/or

3. engaged in conduct which had a tendency to interfere with the administration of justice.

4. Charge 2 is that, in deleting the emails, Mr Sundarjee:

1. wilfully disobeyed the Search Orders;

2. intended to prevent some or all of the deleted documents being produced pursuant to an order of this Court and made available for use as evidence in these proceedings; and/or

3. engaged in conduct which had a tendency to interfere with the administration of justice.

5. On 1 December 2023, Mr Sundarjee, by his counsel, entered a plea of guilty in relation to paragraphs (b) and (c) of Charge 1 and paragraphs (b) and (c) of Charge 2. On that date, the matter was listed for a sentencing hearing.

6. The parties agree that the conduct amounts to criminal contempt.

7. Having regard to Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [39], SBA did not make any submission about the specific penalty to be imposed. Instead, SBA’s submissions were directed to the proposition that in the present case, a custodial penalty is the only appropriate penalty.

8. Mr Sundarjee, while acknowledging the serious nature of his conduct on the morning of 15 December 2022, submitted that the circumstances were not such as to warrant the imposition of a custodial penalty, and made submissions regarding alternative forms of punishment.

Agreed Facts

9. The following matters are largely drawn from the Statement of Agreed Facts filed by the parties on 23 February 2024.

SBA – Origins, directors, shareholders

10. SBA runs a family business which, among other things, exports consumer goods, mostly sourced from suppliers in Asia to the Pacific Islands (Export Business). SBA also runs a property investment business.

11. SBA traces its roots to Mr Sundarjee’s grandfather, Sundarjee Bhagwanjee, who moved from India to Fiji in around 1919. Mr Bhagwanjee started the business with his three sons: Puran Sundarjee; Murjee Sundarjee; and Jethalal Sundarjee. In order to avoid confusion, and without intending any disrespect, I will refer to other members of Mr Sundarjee’s family by their first names.

12. Jethalal, who died in 1988, was Mr Sundarjee’s late father. Puran ceased to have any involvement in SBA in 2000. The present directors of SBA are Murjee and his son, Pravin Sundarjee, who are, respectively, Mr Sundarjee’s uncle and cousin.

13. Mr Sundarjee was a director of SBA from 29 November 1991 to 23 October 2023.

14. SBA’s share capital is comprised of three management shares and three ordinary shares. The transfer of shares is restricted by SBA’s constitution or articles of association.

15. Murjee holds one management share and one ordinary share. Since 2000, one management share and one ordinary share in SBA has been held by Pravin, Murjee and Mr Sundarjee as tenants in common in the following proportions: Pravin, 60%; Murjee, 20%; and Mr Sundarjee, 20%. The remaining management share and ordinary share are held by Jethalal’s estate. Since no later than 9 November 2022, Mr Sundarjee has been the sole, absolutely entitled beneficiary of the assets of Jethalal’s estate.

16. Accordingly, the current effective shareholding of SBA is as follows:

Shareholders	Shares	Effective percentage holding
Murjee	1 ordinary 1 management 1/5 ordinary 1/5 management	40%
Pravin	3/5 ordinary 3/5 management	20%
Mr Sundarjee (Jethalal’s estate)	1 ordinary 1 management 1/5 ordinary 1/5 management	40%
Total	3 ordinary 3 management	100%

Mr Sundarjee ceases employment with SBA

17. Mr Sundarjee is 63 years old.

18. He was an employee of SBA from around October 1998 until his resignation on 20 April 2022 (effective 30 April 2022). He migrated from Fiji to Australia in 1998 in order to take up the role.

19. During the period that Mr Sundarjee was an employee of SBA, he had overall responsibility for, and management of, the Export Business. Pravin has at all relevant times had overall responsibility for, and management of, SBA’s property investment business.

20. At the time of Mr Sundarjee’s resignation, there were six other employees of SBA engaged in the Export Business, including his son (Sanjay Sundarjee) and Cynthia Yu. Sanjay was the Sales & Marketing Manager for the Export Business and Ms Yu was a Sales Executive.

21. Within two days of Mr Sundarjee’s resignation, each of the other six employees engaged in the Export Business also resigned from SBA (although two of them subsequently decided to remain employed with SBA).

22. Mr Sundarjee’s resignation occurred in the context of a breakdown in his relationship with Pravin and Murjee. In about July 2019, Mr Sundarjee, Pravin and Murjee had discussed the prospect of SBA’s shareholding being restructured such that Mr Sundarjee and Jethalal’s estate would together hold 49% of the shares in SBA, and Pravin and Murjee would together hold 51%. SBA’s accountant prepared a restructuring plan to that end, but it was not implemented. Subsequently, in around September 2020, Mr Sundarjee, Pravin and Murjee agreed to separate their business interests, with the Export Business to be purchased by Mr Sundarjee for a price to be determined by reference to an independent valuation, and the property investment business to be wound up with the proceeds distributed to SBA’s shareholders. On 31 March 2022, an independent valuer valued the Export Business at $3.965m, incorporating a goodwill component of $2.392m. On 8 April 2022, Pravin and Murjee offered to sell the Export Business to Mr Sundarjee for $11.853m, and Mr Sundarjee offered to buy it for $1.8m. Each offer was rejected. On 14 April 2022, Mr Sundarjee made a further offer to buy the Export Business at $2.392m. On 19 April 2022, Mr Sundarjee’s second offer was rejected and he resigned the following day. The property investment business has not been wound up.

Dispute between SBA and Mr Sundarjee regarding Div 7A Loans

23. Apart from his shareholding in SBA, Mr Sundarjee’s primary asset is his home in Blakehurst.

24. From 2001 onwards, SBA made a series of loans to Mr Sundarjee which were intended to comply with Division 7A of the Income Tax Assessment Act 1936 (Cth) (Div 7A Loans). From October 2005, the Div 7A Loans were made primarily in respect of monthly mortgage payments to Mr Sundarjee’s bank. The Div 7A Loans were secured by a second mortgage over Mr Sundarjee’s home. Until 26 April 2022, SBA had declared dividends which were thought to be sufficient to meet the repayments due in respect of the Div 7A Loans. Div 7A Loans were extended to Pravin on similar terms.

25. From 26 April 2022 to date, SBA has sought the repayment by Mr Sundarjee of the Div 7A Loans. These loans were said by SBA to total $3.295m in April 2022 and $4.085m in September 2022.

26. From 26 April 2022, SBA also ceased meeting the monthly mortgage repayments due to Mr Sundarjee’s bank.

27. Mr Sundarjee admits that the Div 7A Loans were made and have not been repaid, but disputes SBA’s entitlement to call on them.

28. In connection with SBA’s efforts to call in the Div 7A Loans, it required that Mr Sundarjee allow a valuer to enter his home on 7 September 2022 to value its security. SBA also required Mr Sundarjee to commence making monthly repayments to it of $13,545 in respect of the Div 7A Loans. Mr Sundarjee has, under protest, made those payments from 26 July 2022 onwards.

29. On 21 September 2022, Mr Sundarjee commenced proceedings in this Court against SBA, Pravin and Murjee (2022 Proceedings), seeking orders that, among other things, he be supplied with documents relating to his Div 7A Loans and that SBA pay Jethalal’s estate the sum of $397,620 in respect of declared but unpaid dividends. On 6 October 2022, Pravin and Murjee accepted that Jethalal’s estate was entitled as against SBA to the sum of $397,620. On 9 November 2022, Pravin and Murjee retired as executors and trustees of the estate, and Mr Sundarjee’s daughter became an executor and trustee. On 23 January 2023, Mr Sundarjee discontinued the 2022 Proceedings. On 15 September 2023, the trustees of the estate authorised and directed SBA to deduct its debt to the estate in the amount of $27,782 per month, and to credit that amount towards Mr Sundarjee’s loan balance, in order to ensure that he meets the monthly minimum interest payments required for his Div 7A Loans. SBA has complied with that direction.

Commencement of these proceedings – Search Orders against Sanjay and Ms Yu

30. On 19 August 2022, SBA filed the Summons to commence this proceeding against the first three Defendants, being Sanjay, Ms Yu and Damican Pty Ltd (Damican). Each of Sanjay and Ms Yu is a director of Damican, and each holds the beneficial interest in 50% of its shares.

31. On the same day, SBA applied for search orders in respect of Sanjay’s home in Mortdale, New South Wales, and Ms Yu’s home in Beverly Hills, New South Wales, on the basis of:

1. a report from KPMG dated 18 August 2022 (First KPMG Report) which stated that:

1. in March and April 2022, and most recently on 20 April 2022 (being the day before he resigned from SBA) Sanjay connected a removeable hard drive named “Sanjay HD” to his laptop;

2. 96 files and folders had been copied onto Sanjay’s hard drive from SBA’s SharePoint, which files and folders were listed in Annexure C to the First KPMG Report;

3. Sanjay’s Hard Drive included files titled “felicia email backup.pst”, “Karen email backup.pst” and “emailbackup.pst”, which appeared to be complete backups of mailboxes;

4. Sanjay had accessed cloud storage, including Google Drive and Dropbox, in the lead up to and after his resignation; and

5. Ms Yu had connected three USB devices to her laptop, most recently on 3 May 2022 (being two days before her last day at SBA) and copied 84 files and folders onto those USBs, which are listed in Annexure D to the First KPMG Report;

2. evidence suggesting that, on 2 May 2022, the same day that Sanjay ceased working at SBA, a website domain with the name “Damican.com” was registered using the company Domains by Proxy;

3. evidence suggesting that, on 11 May 2022, Sanjay and Ms Yu incorporated Damican; and

4. evidence suggesting that, before Damican was incorporated, Sanjay and Ms Yu contacted SBA’s suppliers and sought their business.

32. On 19 August 2022, this Court made search orders in respect of Sanjay’s home and Ms Yu’s home (August Search Orders). The August Search Orders were executed on 22 August 2022.

33. KordaMentha was engaged to act as the independent computer expert and employees from KordaMentha formed part of each of the two search parties for the August Search Orders.

34. KordaMentha imaged certain devices at Sanjay’s home and Ms Yu’s home (including their personal laptops and phones) and consolidated the data onto two hard drives.

35. On 23 September 2022, this Court ordered that KordaMentha provide to SBA’s computer expert, KPMG, an exact replica of those two hard drives for the purposes of determining whether the August Search Orders had been complied with or whether further orders were required. On 31 October 2022, this Court made orders that KPMG have leave to share any of the data on those two hard drives (excluding any documents the subject of the defendants’ privilege claims) with SBA’s legal advisers, who had provided confidentiality undertakings, to enable them to determine whether the August Search Orders had been complied with or whether any further orders were required.

36. Mills Oakley instructed KPMG to conduct a forensic examination of the data obtained from KordaMentha and prepare a report for use in the proceedings for the purpose of assisting Mills Oakley to determine whether the August Search Orders had been complied with or whether any further orders were required.

37. On 30 November 2022, KPMG delivered a second report (Second KPMG Report). The Second KPMG Report identified that the data obtained from the August Search Orders included emails and WhatsApp messages between Sanjay, Ms Yu and Mr Sundarjee which could be understood to suggest that Mr Sundarjee had been involved in the formation and/or operation of Damican’s business. Examples of the documents were annexed to the Second KPMG Report.

The Search Orders against Mr Sundarjee

38. On 14 December 2022, Mr Sundarjee was joined as Fourth Defendant to these proceedings.

39. On the same day, based in part on the Second KPMG Report, SBA obtained the Search Orders against Mr Sundarjee.

40. The search party arrived at Mr Sundarjee’s home at 7:10am on 15 December 2022. At 7:21 am SBA’s solicitors emailed a copy of the Search Orders and associated materials to Mr Sundarjee’s solicitors, Arnold Bloch Leibler (ABL).

41. The interactions between Mr Sundarjee and the search party on 15 December 2022 were as described in the report of independent solicitor, Diana Biscoe, dated 20 December 2022. On her arrival, Ms Biscoe introduced herself to Mr Sundarjee, and explained that she had been appointed by the Court to act as independent solicitor in connection with the service and execution of search orders. She told him that she had four volumes of documents to serve on him. She attempted to give those volumes to Mr Sundarjee, which included a copy of the Search Orders, but he refused to accept them. Mr Sundarjee said that he would call his solicitor and returned inside the premises. Ms Biscoe left the folders of documents, which remained closed, by the gate at the entrance to the property.

42. At approximately 7:17am, Mr Sundarjee opened his front door while on the phone to his solicitor. He approached Ms Biscoe with his solicitor, Mr Lloyd of ABL, on the phone on loud speaker. Mr Lloyd enquired as to the nature of the Search Orders. Ms Biscoe briefly explained the Search Orders and outlined some of the Listed Things. Mr Lloyd asked for a copy of the Search Orders, and an email was sent to him at 7:21am which attached them. Mr Lloyd said words to the effect of “Maybe we can come to some sort of arrangement. Mr Sundarjee’s daughter and granddaughter are in the house, and we don’t want you to go charging in”. Mr Lloyd then said words to the effect that he needed some time to review the documents. At around 7:21am, the call finished and Mr Sundarjee went back inside his home.

43. From shortly after the arrival of the search party at Mr Sundarjee’s home at 7:10am on 15 December 2022 and in any event before 7:32am, Mr Sundarjee was aware of the Search Orders and knew that the Search Orders authorised the search party to seize and search his phone and laptop and that a consequence of deleting any material from those devices was that the deleted material would not be able to be accessed and reviewed in accordance with the Search Orders.

Deletion of WhatsApp conversations

44. Between about 7:32am and about 8:34am on 15 December 2022, Mr Sundarjee used his mobile phone to delete the following 13 WhatsApp conversations, each of which comprised multiple WhatsApp messages:

1. a WhatsApp conversation between Mr Sundarjee and Michael Leong (a representative of SBA’s customer Au Bon Marche), which was last active on 8 December 2022 and which was deleted on 15 December 2022 at about 7:32am;

2. a WhatsApp conversation between Mr Sundarjee and Sanjay, which was last active on 14 December 2022 and was deleted on 15 December 2022 at about 7:32am;

1. a WhatsApp Conversation between Mr Sundarjee and Yohanes Gunawan (a representative of SBA’s supplier, PT. Sinar Antjol ) which was last active on 20 August 2022 and was deleted on 15 December 2022 at about 7:38am;

2. a WhatsApp Conversation between Mr Sundarjee and Albert Pastura (whom Mr Sundarjee had intended to be the IT administrator for the Export Business following its purchase from SBA and who is the IT administrator for Damican) which was last active on 4 August 2022 and was deleted on 15 December 2022 at about 7:38am;

3. a WhatsApp conversation between Mr Sundarjee and “Hana Pt Sinar” (another representative of SBA’s supplier, PT. Sinar Antjol) which was last active on 28 July 2022 and was deleted on 15 December 2022 at about 7:39am;

4. a WhatsApp conversation between Mr Sundarjee and “Tina” (a representative of PT Berito Pangan Makmur, which is not an SBA supplier), which was last active on 8 July 2022 and was deleted on 15 December 2022 at about 7:39am;

5. a WhatsApp conversation between Mr Sundarjee and “Santosh” (a representative of SBA’s supplier, Xtracare Products), which was last active on 6 July 2022 and was deleted on 15 December 2022 at about 7:39am;

6. a WhatsApp conversation between Mr Sundarjee and Yash Gaijar (a representative of SBA’s supplier, Cremica), which was last active on 5 July 2022 and was deleted on 15 December 2022 at about 7:40am;

7. a WhatsApp conversation between Mr Sundarjee and Kultaran Singh (a representative of SBA’s supplier, Twilite), which was last active on 22 June 2022 and was deleted on 15 December 2022 at about 7:41am;

8. a WhatsApp conversation between Mr Sundarjee and Mohit Kumar (also a representative of Cremica), which was last active on 12 May 2022 and was deleted on 15 December 2022 at about 7:42am;

9. a WhatsApp conversation between Mr Sundarjee and Lenny Lim (a representative of SBA’s supplier, United Detergent Industries), which was last active on 26 April 2022 and was deleted on 15 December 2022 at about 7:44am;

10. a WhatsApp conversation titled “Sundarjee + ABM Chat”, which was between Mr Sundarjee, other SBA employees and representatives of Au Bon Marche, which was last active on 4 March 2022 and was deleted on 15 December 2022 at about 7:55am; and

11. a WhatsApp conversation between Mr Sundarjee and “Edou” (being Edouard Pentecost, a representative of SBA’s customer, Pacific Distribution), which was last active on 12 December 2022 and was deleted on 15 December 2022 at about 8:34am.

45. With the exception of the WhatsApp conversation with “Tina” referred to at sub-paragraph (f) above, each of the WhatsApp conversations that Mr Sundarjee deleted on 15 December 2022 was a “Listed Thing” within the meaning of the Search Orders.

Application for stay

46. At around 9:08am, Mr Sundarjee presented his phone to Ms Biscoe, and Mr Lloyd announced that he was on loud speaker. Mr Lloyd said: “our counsel is on the phone to the duty judge and we are seeking an interim stay of the order. We may need more time for this.”

47. Sometime between 9:08am and 9:16am on 15 December 2022, Mr Sundarjee, by his counsel, gave an undertaking to the Court not to destroy or alter any materials the subject of the Search Orders. On the basis of this undertaking, the Court stayed the execution of the Search Orders until 12:00pm on 15 December 2022 and listed the proceedings at 11:15am to enable Mr Sundarjee to make an application to have the Search Orders set aside.

48. At around 9:16am, Mr Sundarjee presented his phone to Ms Biscoe, and Mr Lloyd again announced that he was on loud speaker. Mr Lloyd said that the Court was staying the execution of the Search Orders until midday to allow Mr Sundarjee to put on an application.

49. At approximately 9:33am, Ms Biscoe received an email from ABL that said:

“As discussed with Ms Biscoe just now, we have contacted Justice Ball and obtained the following orders:

1. On the undertaking of Hasmukh given by counsel to the Court not to destroy or alter any material the subject of the search order, stay the operation of the orders until 12 noon today.

2. Direct counsel to notify the solicitors for the Plaintiffs of the order.

His Honour indicated that any application to set aside the order should be made on notice prior to 12pm.

The matter has not been listed for a hearing at 12pm – his Honour directed us to put on any application and to give you notice of it – at this stage we are aiming to have the application on at 11:15am but I will let you know if that changes.”

Deletion of emails

50. Between about 7:45am and 9:34am on 15 December 2022, Mr Sundarjee deleted 153 emails from the email mailbox stored on his laptop (which deletions were automatically synchronised to the cloud) as follows:

1. at about 7:45am, two items from a mailbox folder named “Deleted Messages”

2. at about 7:45am, 118 items from a mailbox folder named “Deleted”;

3. at about 9:30am, 7 items from a mailbox folder named “Inbox”; and

4. at about 9:34am, 26 items from a mailbox folder named “Inbox”.

Stay refused and Subsequent events on 15 December 2022

51. At 11:15am on 15 December 2022, Mr Sundarjee, by his counsel, made an application to this Court to set aside the Search Orders. The application was refused.

52. Mr Sundarjee had travelled from his home to attend Court for the hearing of his application, and had brought his laptop and mobile phone with him. At around 12:55pm on 15 December 2022, Mr Sundarjee provided his laptop and mobile phone to his solicitors, who shortly thereafter provided those devices to KordaMentha for imaging.

53. At around 1:50pm on 15 December 2022, following Mr Sundarjee’s return home, he permitted the search party to enter his house and to execute the Search Orders. His mother, wife, daughter and infant granddaughter were at home at the time. The execution of the Search Orders occurred as described in Ms Biscoe’s report, concluding at about 2:38pm.

Commencement of contempt proceeding

54. On 14 July 2023, Mills Oakley served on ABL a Notice of Motion filed on 13 July 2023. In summary, the orders sought on that motion included orders seeking leave to use information the subject of previous confidentiality undertakings provided by SBA’s solicitors and barristers to the extent necessary for them:

1. to obtain instructions on whether to commence contempt proceedings against Mr Sundarjee; and

2. to prosecute any contempt proceedings that are commenced on SBA’s instructions.

55. On 20 July 2023, the Court made orders by consent permitting the use of the confidential information for the purposes noted at subparagraphs (a) and (b) above.

56. On 28 July 2023, the Court made orders by consent which provided, among other things, that SBA file and serve any contempt motion on or before 18 August 2023.

57. On 21 August 2023, Mills Oakley sent an email to ABL stating that their expert had been instructed to prepare a supplementary report on matters relating to compliance with the Search Orders. Mills Oakley requested an extension to the date by which the contempt motion was required to be filed and served to 31 August 2023. On 22 August 2023, ABL sent an email to Mills Oakley stating that Mr Sundarjee did not consent to an extension on the basis, among other things, that an explanation was required as to why a supplementary report was necessary.

58. On 19 September 2023, SBA filed and served its contempt motion.

Plea of guilty

59. On 22 September 2023, the Court made orders that Mr Sundarjee file and serve any evidence in relation to the contempt motion by 10 November 2023, and listing the contempt motion for a liability hearing on 26 February 2024. Those orders, among other things, also granted liberty to apply on two days’ notice. At that hearing Mr Sundarjee’s counsel said to the Court that Mr Sundarjee was considering whether to contest the charge, and asked the Court whether it had a preference in regards to the manner in which a plea should be entered.

60. On 23 October 2023, Mr Sundarjee resigned as a director of SBA.

61. On 16 November 2023, Mr Sundarjee, by his solicitors, exercised the liberty to apply and sought that the contempt motion be relisted to permit him to enter a plea in respect of the contempt charges and for a timetable to be ordered for the contempt motion (as concerns Hasmukh) to proceed to a penalty hearing.

62. On 1 December 2023, Mr Sundarjee, by his counsel, entered a plea of guilty in relation to paragraphs (b) and (c) of Charge 1 and paragraphs (b) and (c) of Charge 2.

Mr Sundarjee’s State of Mind on 15 December 2022

63. Mr Sundarjee swore two affidavits which were read at the sentencing hearing. In the first, he deposed as to various matters regarding his state of mind as at 15 December 2022 and now.

64. In particular, he gave the following evidence:

1. prior to 15 December 2022, he was aware that proceedings had been commenced by SBA against Sanjay and Ms Yu, involving allegations that they had copied and used SBA’s confidential information to set up Damican. He was also aware that the homes of Sanjay and Ms Yu had been searched in August 2022. (He agreed in cross-examination that he was at Sanjay’s home when the search party arrived.) However, he did not otherwise know much about those proceedings. Mr Sundarjee was also aware that SBA had alleged, in correspondence from its lawyers, that Mr Sundarjee had been involved in setting up and running Damican;

2. on the morning of 15 December 2022, he was very stressed and in a state of panic. He felt as if his family home was being invaded by his cousin and his uncle, who (in his view) had already treated him unfairly in their dealings and disputes with him in relation to SBA. Because of their actions, he felt under “severe emotional and financial pressure”;

3. when he deleted the WhatsApp conversations, he was “not thinking clearly”. He deleted conversations with SBA’s customers and suppliers, some of whom are his long-term friends, and with his son, because he thought “they might contain messages that made me look bad because I had said insulting things about Pravin or Murjee or the circumstances of my resignation as an employee of SBA, or messages of a personal character (for instance with my son) that I felt were embarrassing to have strangers read”. When he deleted these conversations, he “understood that they might be relevant to the proceedings involving Sanjay and [Ms Yu] and the allegations being made against me”;

4. when he deleted the emails in the “Deleted” and “Deleted messages” folders on his laptop, he did so knowing that the Search Orders permitted the independent solicitors to take and search through his laptop, knowing that deleting the emails meant that the independent solicitors would be unable to see them, and understanding “that their contents might be relevant to the proceedings involving Sanjay and [Ms Yu] and the allegations being made against me”;

5. he does not remember the contents of the 33 emails which he deleted from his inbox between 9:30am and 9:35am, and does not recall why he deleted them. However, he accepts that he did so “knowing that the Search Orders entitled the independent solicitors to take and search through my laptop and that deleting the emails meant that the independent solicitors would be unable to see the deleted emails, which I understood might have been relevant to the allegations that I have been or am involved in Damican or a competing business”;

6. although he was aware that the Search Orders allowed the search party to take his phone and laptop, he “was not aware when [he] deleted the material, that the Search Orders contained an order prohibiting [him] from deleting messages and emails which were covered by the Search Orders”. While he knew that the messages and emails which he deleted “might have been relevant to the dispute about Damican”, he “never thought about whether [he] was breaching any orders”;

7. he “acted rashly based on [his] emotions” at the time. If he had “taken more time and through about what was happening”, and had read the orders, he “would not have deleted the messages and emails”; and

8. when he deleted the messages and emails, he “was not particularly conscious of the Court’s role in what was occurring”, instead feeling “like this was another strike by my uncle and cousin, taking place in my family home”. He stated that if he “had been more conscious of the Court’s role in what was occurring [he] would have acted differently”.

65. Mr Sundarjee also gave evidence in his affidavit, which he repeated in the witness box, that he understands that his conduct was wrong and an affront to the Court; and that he understands that the pressure he was under and his failure to consider whether what he was doing was prohibited by Court orders was not an excuse for what he did. He unreservedly apologised to the Court for his conduct and indicated that he would “accept the punishment that the Court determines to be appropriate”.

66. Mr Sundarjee was extensively cross-examined by SBA’s counsel.

67. SBA submitted that Mr Sundarjee was not a credible witness and his evidence regarding his state of mind on 15 December 2022 should be rejected.

68. The challenge to credit was based primarily on several aspects of Mr Sundarjee’s evidence and his conduct on 15 December 2022.

69. First, Mr Sundarjee gave evidence in his affidavit that prior to the disputes arising between himself, Pravin and Murjee in relation to SBA, he “had not been party to any Court proceedings and had no familiarity with how Court proceedings worked”. The first part of this statement was factually wrong. Mr Sundarjee was taken in cross-examination to documents relating to four court proceedings in which he was a named party, stretching back over the past 28 years. Three of those four proceedings had been brought in Fiji. When shown the documents, Mr Sundarjee said that he had no recollection of those proceedings. He also explained that Pravin handled all legal matters involving the SBA business. The documents which were tendered in relation to these proceedings showed that, where Mr Sundarjee was named as a defendant, he was so named along with Pravin and Murjee, and that the proceedings apparently concerned the Sundarjee Bros business, with correspondence in relation to them being addressed to Pravin (rather than to Mr Sundarjee). Mr Sundarjee was also taken in cross-examination to evidence that in one of these proceedings brought in the High Court of Fiji, he had sworn an affidavit on 1 August 1996 in support of a strike out motion (the content of which is unknown); and that, in an action brought by the Sundarjee Brothers business in the High Court of America Samoa, he had sworn a two-page affidavit on 22 October 2007 (which did no more than set out the amount still owing in respect of a debt for goods ordered from the business).

70. I accept Mr Sundarjee’s evidence that he did not intend to mislead the Court by his evidence that he had not previously been a party to proceedings, and that he could not recall this handful of past proceedings over the past three decades. That is not surprising given that this litigation was managed by Pravin on behalf of the Sundarjee Brothers business. There was no evidence that his involvement extended beyond the two affidavits that he was shown. In any case, none of this material challenged the proposition in Mr Sundarjee’s affidavit that he was a person who had “no familiarity with how Court proceedings worked”.

71. Secondly, Mr Sundarjee gave evidence in his affidavit of 27 February 2024 that he “had no source of income”. In cross-examination, he agreed that he had made two withdrawals from the account of the Sundarjee Brothers partnership in Fiji: a withdrawal of FJD200,025 on 22 March 2023 and a withdrawal of FJD150,153 on 20 October 2023. Mr Sundarjee described this money as “from my share” of the partnership. Although there was no evidence of the exchange rate at the time of those withdrawals, Senior Counsel for Mr Sundarjee submitted that those withdrawals totalled approximately AUD$200,000, and SBA did not contend otherwise.

72. SBA did not dispute Mr Sundarjee’s entitlement to make those withdrawals. Instead, SBA confronted Mr Sundarjee with evidence of those withdrawals and put to him that when he deposed that he had had no income since April 2022, he knew this was untrue. Mr Sundarjee rejected this, and pointed out that Pravin and Murjee have “put a stop” on his ability to access the partnership account in Fiji. I do not regard these matters as damaging Mr Sundarjee’s credit. I understand his evidence that he has had no income since leaving SBA in April 2022 as meaning that he has not received any salary since that time (which was not disputed). He did not mean to suggest that he has no assets, or that he is unable to draw on those assets to meet his expenses. Mr Sundarjee provided detailed evidence about his financial position, including a list of his assets, their current values, and amounts held in various bank accounts. None of this evidence was challenged.

73. Thirdly, SBA took Mr Sundarjee in cross-examination to the affidavit which he sworn on 7 February 2023. This affidavit was served pursuant to the Search Orders, which required Mr Sundarjee to make and serve on SBA an affidavit setting out to the best of his ability, among other things, the location of the Listed Things. In this affidavit, Mr Sundarjee made a series of statements, in respect of each category of Listed Things, that the documents “are located, to the extent that they exist and to the best of my knowledge, on my laptop and mobile phone”.

74. While those statements may have been true as far as they went, they were misleading, in that Mr Sundarjee failed to disclose that he had deleted WhatsApp conversations and emails, including messages with Sanjay and with customers and suppliers of SBA.

75. However, Mr Sundarjee is not charged with any breach of the Court orders by the making of the February 2023 affidavit, and the issue is not whether he was full and frank in that affidavit, but whether the evidence which he has given to the Court on this motion, in respect of his state of mind on 15 December 2022 and his state of mind now, is credible. In that regard, Mr Sundarjee frankly acknowledges now (whereas he did not in February 2023) that on the morning when the Search Order was executed, he deleted WhatsApp conversations and emails, and that he did so with the intention of preventing some or all of the deleted documents being produced pursuant to an order of the Court and being made available for use as evidence in these proceedings.

76. Fourthly, SBA contended that the Court should find that Mr Sundarjee’s deletion of the WhatsApp conversations and emails on 15 December 2022 was not “something that happened out of panic and ignorance”, but was part of “a calculated course of conduct” which had commenced in March 2022, while Mr Sundarjee was still an employee and director of SBA, and which had included discussing with Ms Yu plans to copy SBA’s documents and to communicate, in secret, with its suppliers and customers. In order to advance this submission, SBA took Mr Sundarjee to a series of WhatsApp messages between him and Ms Yu in March and April 2022. Mr Sundarjee rejected the propositions put to him regarding the meaning of these messages, and in particular rejected that he had engaged in conduct of the type alleged by SBA. I do not consider it is necessary or desirable, on this application, to resolve this issue. In the underlying proceedings, in which this application is brought, allegations are being made regarding the conduct of Mr Sundarjee and Ms Yu. Those allegations will be addressed by documentary tenders and affidavit evidence, and will be explored in cross-examination and submissions, and the Court will then be in a position to make findings about the defendants’ conduct and state of mind having regard to the whole of the available evidence. In contrast, I have been taken in submissions on this application to a single WhatsApp conversation, and have heard Mr Sundarjee’s denials of the inferences sought to be drawn from that conversation, but do not have any broader context in which to assess whether I should accept the inferences or the denial of them. Those are matters that must await another day.

65. For the purpose of the current proceedings, it is sufficient that Mr Sundarjee has acknowledged that he was aware, at the time of deleting the WhatsApp conversations and emails on 15 December 2022, that:

1. SBA was making allegations to the effect that Sanjay and Ms Yu had used confidential information of SBA in order to set up a rival business, Damican, and that Mr Sundarjee was involved in setting up and running Damican; and

2. the documents which he deleted might be relevant to the allegations made by SBA against him, Sanjay and Ms Yu.

78. Fifthly, although SBA accepted that Mr Sundarjee did not read the Search Orders prior to making the deletions, and that the Penal Notice at the front of the Search Orders was not read out to him, SBA challenged his evidence, in his affidavit, that he “was not aware when [he] deleted the material, that the Search Orders contained an order prohibiting [him] from deleting messages and emails which were covered by the Search Orders”.

79. In cross-examination, Mr Sundarjee explained that, at the time, he did not “believe” he was “entitled” to delete these documents, but rather he “did not know” whether or not he was entitled to do so before he handed over the Search Orders. He said: “That was my error. I wish I had read the search orders. If I had read the search orders I wouldn’t have done that”.

80. Significantly, SBA did not challenge the propositions that he was not aware of the terms of the Search Orders at the time of the deletions, or his evidence that he did not know that he was breaching the Search Orders by those deletions. In particular, it was not put to him that he was aware that the Search Orders provided that during the period when he was seeking advice on the orders, he must “not disturb or remove any listed things”; or that he must “must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court”. Nor was it specifically put to him that he was aware that (as the Penal Notice on the front of the Search Orders stated) if he disobeyed the Search Orders by doing an act which those orders required him to abstain from doing (such as destroying or tampering with any of the Listed Things), he would be liable to imprisonment, sequestration of property or other punishment.

81. Having regard to those matters, it has not been established that Mr Sundarjee was aware of, and wilfully disobeyed, the terms of the Search Orders when he deleted the WhatsApp conversations and emails on 15 December 2022. Nonetheless, as stated in the Charges to which Mr Sundarjee has pleaded guilty, he did, by deleting those documents, intend to prevent some or all of them being produced pursuant to an order of the Court and being made available for use as evidence in these proceedings. The significance of the distinction between what has and has not been established is further discussed below, when considering the factors relevant to sentencing and the various decisions put forward by the parties as appropriate comparators.

Legal Principles

82. The underlying rationale of sentencing for both civil and criminal contempt is to protect the effective administration of justice: He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 (He v Sun CA) at [10] per Bell P; Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107 per Gibbs CJ, Mason, Wilson and Deane JJ; [1986] HCA 46. In Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111, the Full Court of the Federal Court said (at [97]):

“contempt proceedings are essentially protective in nature as to the judicial function and the role of the courts, even if they also serve to vindicate private interests and rights. Contempt proceedings are therefore to be viewed as essential in facilitating courts being able to function properly.”

83. Part 55, rule 13 of the Supreme Court Rules 1970 (NSW) relevantly provides as follows:

(1) Where the contemnor is nor a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.

…

(3) The Court may make an order for punishment on terms, including a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

84. Pt 55 r 13 is declaratory of the Court’s power of punishment and does not exhaust it: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 (Maniam (No 2)) at 314 per Kirby P (Hope AJA agreeing).

85. The Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply with respect to contempt in the civil jurisdiction of this Court: Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 299; [2018] NSWCA 340 at [46] per Basten JA (Meagher JA agreeing); He v Sun CA at [38] per Bell P (Gleeson JA agreeing) and at [62] per McCallum JA. As explained by McCallum JA in He v Sun CA at [62], this is because such proceedings invoke the Court’s “general law powers to punish for contempt of court”: in determining a motion for contempt, the Court is not “dealing with proceedings for an offence”, but rather is “exercising the civil jurisdiction of the Supreme Court”.

86. Accordingly, alternatives to imprisonment under the Crimes (Sentencing Procedure) Act are unavailable, such as a community service order (s 8); a conditional release order (s 9); dismissal of the charges, if the Court is satisfied that it is inexpedient to inflict any punishment other than nominal punishment (s 10); conviction with no other penalty (s 10A); and a suspended sentence of imprisonment (s 11): Sun v He (No 2) [2020] NSWSC 1298 at [20] (Sun v He (No 2)), cited with apparent approval by Bell P in He v Sun CA at [11].

87. Although such orders cannot be made under the provisions of that Act, the Court does have power, as provided in Pt 55 r 13(3) of the Supreme Court Rules, to make an order for punishment on terms: He v Sun CA at [39]-[40] per Bell P (Gleeson JA agreeing). Such an order can include a suspension of either imprisonment or a fine on terms that the contemnor perform community service: NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 (Corry (No 8)) at [85] and [96] per Bell P.

88. As regards a custodial sentence, Bell P observed in Corry (No 8) at [30] that:

“Sentencing a contemnor to a term of imprisonment is a penalty of last resort … While the provisions of the Crimes (Sentencing Procedure) Act may not apply, to adopt the language of McCallum JA in He v Sun at [68], ‘it is appropriate to proceed on the basis that, where a person is being dealt with for contempt in civil proceedings, as where a person is being sentenced for a criminal offence, the course of committing the contemnor to a correctional centre or sentencing them to a term of imprisonment should not be taken before considering whether there is any alternative course that is appropriate in the circumstances, having regard to the nature and objection of the function in question.’ The reasons underpinning her Honour’s conclusion on this point were that:

… imprisonment is a punishment of last resort … While that is a proposition that arises most commonly in the discourse of the criminal law, there is no reason in principle why the same restraint should not apply to punishment of contempt and every reason why it should. That is a necessary incident of the common law’s acceptance that the right to personal liberty is a fundamental common law right which ‘cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes’ …”

89. A similar sentiment was expressed by the Full Court of the Federal Court in Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596 at [54]:

“In any sentencing process, imprisonment is to be regarded as the penalty of last resort. Any period of deprivation of liberty is a drastic imposition on anyone. The value that the law places on liberty is very high. It is incumbent on a sentencing judge to determine first whether any alternative to imprisonment would be appropriate.”

90. As regards the imposition of a fine, section 6 of the Fines Act 1996 (NSW) provides as follows:

In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider –

(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

91. In the event that adverse costs orders are imposed, the Court should also consider whether the effect of such costs orders themselves constitute a sufficient penalty against the contemnor: Circuit Finance Australia (recs and mgrs apptd) (in liq) v Sobbi [2010] NSWSC 912 at [8] per Ball J.

92. In Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 at [26]-[27], Barrett J identified the following “factors generally to be taken into account in addressing the question of the punishment to be imposed for contempt of court by disobeying an order of the court”:

1. the seriousness of the contempt;

2. the contemnor’s culpability;

3. the reasons or motives for the contemptuous conduct;

4. whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

5. whether there has been any expression of genuine contrition by the contemnor;

6. the character and antecedents of the contemnor;

7. the contemnor’s personal circumstances;

8. the need for specific and general deterrence; and

9. the need for denunciation of the contemptuous conduct.

93. His Honour’s observations were referred to with approval by the Court of Appeal in Matthews v Australian Securities and Investment Commission [2009] NSWCA 155 at [129]-[130], [137], [141] per Tobias JA (with whom Basten and Campbell JJA relevantly agreed), and in He v Sun CA at [10] per Bell P. In Kazal v Thunder Studios Inc at [102], the Full Court described the factors in Matthews as a “useful list of considerations that may properly be seen to have a part to play in a given case, although not exhaustive”.

Consideration of Relevant Factors

Seriousness of the contempt

94. SBA submitted that Mr Sundarjee’s conduct was plainly criminal in nature, and was properly characterised as being at the very serious end of the spectrum.

95. Mr Sundarjee accepted the seriousness of his conduct in deleting material from his phone and computer on 15 December 2022. He accepted, consistently with paragraphs (b) and (c) of each Charge (to which he has pleaded guilty), that he deleted the material knowing that his phone and computer were liable to be seized and that a consequence of deleting the material was that it would not be able to be accessed and reviewed in accordance with the Search Orders. He also accepted that in deleting the material he intended to prevent it being produced and reviewed pursuant to those orders.

96. Mr Sundarjee also accepted that the conduct described in paragraphs (b) and (c) of each of the two Charges amounted to a criminal contempt. As Ward CJ stated in Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 at [123]-[124], any “action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using that term in a broad sense” amounts to criminal contempt where the actions of the contemnor “were intentional and were calculated to interfere with the course of justice” (citing Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245 at 257; [1981] HCA 35; and Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 at [32]-[38] per Brereton J).

97. However, Mr Sundarjee’s counsel submitted that his conduct did not amount to a “contumacious contempt”. In Maniam (No 2) at 314-315, Kirby P observed that:

“For the purposes of punishment, various classes of contempt have been identified in the cases. They include technical, wilful and contumacious contempt. For technical contempts, the Court will usually accept an apology from the contemnor. It may order that the contemnor pay the costs of the proceedings brought to uphold the authority of the courts of law. …

A similar approach is sometimes taken to contempts which are more than technical and which, although wilful, are not found to have been deliberate. An illustration of this class of contempt may be found in Attorney-General for New South Wales v Dean (1990) 20 NSWLR 650. In that case a police officer participated in a police media conference and identified a suspect in a murder investigation in such a way as to interfere in the suspect’s right to have a fair trial according to law. The Court found an absence of a specific intent to interfere in the administration of justice. But this was neither an answer nor a defence to the charge. Nor was ignorance of the law of contempt an excuse. The Court, nevertheless, contented itself with a declaration that the police officer had been guilty of contempt. It ordered him to pay the costs of the proceedings (see ibid at 659). An application for special leave to appeal to the High Court of Australia from those orders was refused.

The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 500. This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice … In cases where such a measure of wilfulness is established, the court may proceed to punish the convicted contemnor by the imposition of a custodial sentence or a fine or both. In such a case the elements necessary to establish wilfulness, carrying as they do the potential of penal consequences, must all be proved to the criminal standard: see Consolidated Press Ltd v McRae (1955) 93 CLR 325 at 333. The procedures of a criminal prosecution must be strictly observed: see Spindler v Balog (1959) 76 WN (NSW) 391 at 393.

It is not every case of a wilful and deliberate interference in the administration of justice by the courts that attracts a custodial sentence. Sometimes it is sufficient to impose a substantial fine, at least where there are circumstances which explain the behaviour or tend to mitigate its seriousness: see New South Wales Egg Corporation v Peek (1987) 10 NSWLR 72 at 84. Where the behaviour in question has been deliberate or wilful, reckless or grossly negligent and a risk exists of its repetition, substantial (and even very substantial), fines have been imposed: see Director of Public Prosecutions v John Fairfax & Sons Ltd; Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 615.”

98. I accept Mr Sundarjee’s submission that his conduct did not amount to a contumacious contempt in the sense described in this passage. He did not have a specific intent to interfere in the administration of justice, and his behaviour was not aimed at the integrity of the courts and designed to degrade the administration of justice. As stated in the quoted passage, the absence of such an intent is neither an answer nor a defence to the charges against Mr Sundarjee. Mr Sundarjee has been charged with, and has admitted, that he deliberately deleted the documents with the intention of prevent some or all of the documents being produced pursuant to an order of the Court, and thereby engaged in conduct which had a tendency to interfere with the administration of justice. In terms of the classes of contempt described above, such conduct amounts to a wilful, and not a technical, contempt.

Mr Sundarjee’s motives for the contemptuous conduct and his culpability

99. SBA submitted in writing that Mr Sundarjee refused to accept delivery of the Search Orders so that he could avoid reading exactly what was required of him and buy himself time to delete items that he believed could assist SBA or harm his interests. No such proposition was put to Mr Sundarjee in cross-examination, and I do not make any such finding.

100. I accept that Mr Sundarjee was, on the morning of 15 December 2022, suffering from stress and a sense of panic, that he had little prior familiarity with Court processes, and that he regarded what was occurring as an invasion of his home by his uncle and his cousin, whom he regarded as having treated him unfairly. Those matters may explain, but do not excuse his conduct. Whatever his state of panic or confusion, he has accepted that he intended to delete documents in order to prevent them being produced pursuant to an order of the Court and to prevent them being used in evidence in the proceedings, and he understood, when he did so, that they might be relevant to the allegations which SBA made in these proceedings.

101. Mr Sundarjee’s culpability is exacerbated by the fact that, during the period that he was deleting documents, he was seeking to invoke the processes of the Court. He was, in effect, deliberately undermining the effectiveness of the Search Orders while his application to set those orders aside was pending. Further, he deleted 33 emails from his inbox shortly after giving an undertaking to the Court “not to destroy or alter any material the subject of the search order”.

102. The undertaking is in simple terms. When asked in cross-examination whether he knew that the undertaking was going to be offered to the Court on his behalf in support of the stay application, Mr Sundarjee responded: “I must have but I do not recall. There was a lot of discussion on the phone with my lawyer and the independent lawyer”. Although Mr Sundarjee claimed privilege over his discussions with his solicitor, Mr Lloyd, on 15 December 2022, it must have been the case that Mr Lloyd explained the undertaking to Mr Sundarjee, and obtained instructions from him, before it was proffered to the Court. However, Mr Sundarjee has not been charged with knowingly breaching the undertaking that he gave to the Court. While taking into account the undertaking as part of the factual background in considering his culpability for the admitted Charges, I have reached my views on the appropriate punishment based on the admitted Charges, and not on any breach of the undertaking.

Whether any benefit or gain

103. Without knowing the content of WhatsApp conversations and emails which were deleted by Mr Sundarjee, the actual consequences of his conduct cannot be precisely stated. However, he accepts that 12 of the 13 WhatsApp conversations which he deleted were Listed Things, and otherwise accepts that he deleted the documents knowing that they might be relevant to the proceeding and that his purpose was to ensure that they could not be reviewed. This conduct has prejudiced SBA’s right to a fair trial.

104. I accept SBA’s submission that while SBA might seek to ameliorate the prejudice caused by Mr Sundarjee’s conduct by bringing an application to strike out his defence or parts thereof, it remains the case that the authority of the Court has been undermined by his conduct.

Any expression of genuine contrition

105. Mr Sundarjee deposed in his affidavit as follows:

“My conduct on the morning of 15 December 2022 was wrong. I understand that my conduct was an afront [sic] to the Court. I understand that the pressure I was under and my failure to consider whether what I was doing was prohibited by Court orders was not an excuse for what I did.

I sincerely and unreservedly apologise to the Court for my conduct.

I accept the punishment the Court determines to be appropriate.”

106. At the commencement of his examination before me, Mr Sundarjee repeated and confirmed those matters. By stating those matters on his oath, he chose to expose himself to cross-examination.

106. Significantly, there was no challenge in cross-examination to this evidence of his current state of mind. I had the opportunity to observe Mr Sundarjee in the witness box. He was not argumentative or defensive; he conceded what he did was wrong; he did not attempt to make excuses for his conduct. I accept the genuineness of his expression of contrition and his apology.

107. SBA submitted that Mr Sundarjee’s recognition of his guilt and expression of remorse could carry little weight, as it came only after evidence in support of the contempt motion was filed by SBA, and amounted to little more than a “recognition of the inevitable”. SBA referred to the observations of Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [137]:

“In Winchester v The Queen, Hunt CJ at CL related the strength of the Crown

case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused: cf R v Beavan (at 12). As his Honour put it (at 350): ‘… The extent to which leniency will be afforded upon this ground will

depend to a large degree upon whether or not the plea resulted from a

recognition of the inevitable.’ In my opinion his Honour was correct to link the

question of the strength of the Crown case only to the issue of contrition or

remorse. A ‘recognition of the inevitable’ may qualify the extent of genuine

contrition. It does not qualify the utilitarian value of a plea.”

109. Those comments were made in a guideline judgment in respect of s 22 of the Crimes (Sentencing Procedure) Act 1999, which requires the Court to take into account the fact that the offender has pleaded guilty, and when the offender did so or indicated an intention to do so. As noted above, that statute does not apply to this contempt proceeding.

110. In the context of sentencing for contempt, the focus is not on the timing of any guilty plea, or quantifying the extent of any discount on sentence for an early plea of guilt, but instead on whether there has been any expression of genuine contrition by the contemnor. An early guilty plea may be one means of demonstrating contrition, but it is not a prerequisite to establishing contrition. In that regard, expressions of contrition are regularly taken into account as a matter relevant to sentencing for contempt when given only after the charge of contempt has been unsuccessfully defended: see, for example, Mirus Australia Pty Ltd v Gage [2018] NSWSC 35 at [39]-[45]; and Sun v He (No 2) at [49]-[56].

111. Further, Mr Sundarjee indicated to the Court, at a directions hearing on 22 September 2023, which occurred only three days after the contempt motion was filed, that he was considering whether to plead guilty to the contempt charges. He then exercised liberty to apply to relist the matter to permit him to enter a plea. In doing so, he moved with dispatch, despite the fact that the charges were only laid some 9 months after the conduct in question. By taking that course, he has demonstrated his acceptance that his conduct was wrong.

112. Mr Sundarjee agreed in cross-examination that he had not made any attempts to find any copy of the things that he had deleted from his phone or his laptop. There was no evidence, for example, that Mr Sundarjee had sought to contact the various persons who were party to the deleted WhatsApp conversations in order to determine whether or not they retained a copy of those conversations, so that this material could be provided to SBA. In closing submissions, Senior Counsel for Mr Sundarjee indicated that this issue had not previously been raised by SBA, and that there may have been an apprehension in his camp that “making contact with [those persons] and asking for copies of [the deleted conversations] would be seen to be interfering in some way in circumstances where it may be possible for the plaintiff to obtain those documents … by compulsory process or otherwise”. He explained that if was “an agreed process” for contacting those persons could be “formulated with some precision”, then Mr Sundarjee was willing to take those steps. In the absence of any such protocol for contacting such persons being agreed, I do not consider that the taking of such steps should be imposed as a condition of suspending any sentence. Nonetheless, I regard Mr Sundarjee’s willingness to take such a step as indicative of his recognition of the wrongfulness of his conduct in deleting materials on 15 December 2022.

Character and antecedents

113. Mr Sundarjee gave unchallenged evidence that he has never previously been in trouble with the law, and has always respected the law and the Courts.

114. He was employed by SBA for a period of around 24 years, running the Export Business, which was financially successful and provided employment for 6 other people.

115. He has financially supported his family, including providing for his elderly mother, his wife and his four children (who are now adults). At the time of the Search Orders, there were four generations living at his home, including his mother, Mr Sundarjee and his wife, his daughter, and his infant granddaughter.

116. There was unchallenged evidence from Mr Sundarjee’s wife that he has always been generous in his financial support for charitable causes, including Surf Life Saving, the Cancer Council, the RSPCA and the Resourceful Australian Indian Network (RAIN).

117. The Chief Executive Officer and the General Manager of RAIN jointly provided a reference dated 5 February 2024 in support of Mr Sundarjee. They explained that RAIN “is a community service organisation serving Indian Sub Continent seniors residing in the South East Sydney region”, and is “also an approved provider of Home Care Services”. The CEO and General Manager acknowledged that they are aware that Mr Sundarjee “has pleaded guilty to two charges of contempt in connection with the deletion of documents which were covered by a search order executed at his home”. The CEO and General Manager continued as follows:

“RAIN staff (including me) and members have known Hasmukh Sundarjee for approximately 14 years. Hasmukh is known to the group of seniors through his mother with whom they have close contact as she attends the social support and respite care groups 3 days a week. We know Hasmukh as [a] caring son and an affectionate father. He is known to have good community standing and has been encouraging his daughters to volunteer with RAIN to serve the community on occasions. He has been always ready to offer help and support for our efforts to provide the much-needed services to this vulnerable population. He is community spirited and has invited the older members of the group to his residence on birthdays and special occasions and shown excellent hospitality to them. He is always known to be polite and respectful to one and all.”

Personal circumstances

118. Mr Sundarjee’s personal circumstances at the time of his conduct on 15 December 2022 included the following matters: he had resigned from SBA, the family business in which he had worked for some 24 years, and was involved in various disputes with SBA and his uncle and cousin; he was without an income, and was at risk of losing his family home because of SBA’s threats to enforce the Div 7A Loans, which were secured by a mortgage over that property; and he was supporting his elderly mother, his wife, his daughter and his infant granddaughter. Mr Sundarjee’s position remains broadly the same at the present.

119. Mr Sundarjee’s main assets are his 40% shareholding in SBA, which he is not presently able to realise, and his family home in Blakehurst.

120. His family home was valued by SBA’s valuer at $xxx. However, it is encumbered by a mortgage in favour of Citibank, which had an outstanding balance of some $xxx as at 25 February 2024, and by a second mortgage in favour of SBA securing the Div 7A Loans. As noted in paragraph 25 above, SBA has asserted that the amount outstanding under those loans was, as at September 2022, $xxx (noting that there is an outstanding dispute regarding these loans).

121. In addition, Mr Sundarjee has the following assets:

1. approximately $xxx held on deposit in a Westpac account, which he and his wife use as for their everyday expenses;

2. approximately $xxx held in a deposit account that Mr Sundarjee controls as trustee for the Hasmukh Sundarjee Family Trust. Mr Sundarjee is the Specified Beneficiary of this trust and has broad powers under the trust deed to distribute the trust’s assets. The funds in the trust’s account are available to be distributed for the personal use of Mr Sundarjee and his immediate family;

3. approximately $xxx in cash committed as a bank guarantee that Mr Sundarjee and his wife provided for a home loan for their daughter, Smita, which was taken out in early 2022. Mr Sundarjee gave evidence that this cash has to remain in the account until his daughter obtains an occupancy certificate for the property, and that this was expected to occur “fairly soon, and that it might even be issued within the next 30 days”. Once this occurs, Mr Sundarjee and his wife will be able to recover the funds that they have provided by way of guarantee;

4. a 50% interest in an investment property at xxx, Carlton NSW, which Mr Sundarjee and his wife purchased in June 2017 with their son, Jesal, for $xxx. There is a mortgage over the unit in favour of St George Bank, which had a balance of $xxx as at January 2024;

5. approximately $xxx of shares in ASX-listed companies; and

6. the family car, which is a 2014 model Audi Q5, estimated to have a value of around $xxx.

122. In addition, Mr Sundarjee deposed that he has funds in a self-managed superannuation fund under which he and his wife are beneficiaries, but he cannot access those funds as he is not yet 65 years old.

123. Since his resignation as an employee of SBA in April 2022, Mr Sundarjee has not had a source of income and has lived off his savings. He has started a new business since October 2023, in which he has a 65% interest, and which he operates out of a spare bedroom in his home, but it has not yet made a profit. He has substantial liabilities, including his monthly mortgage repayments and the living expenses for him and his family, together with the substantial legal costs that he has incurred (and will continue to occur) in the proceedings brought against him, and in bringing a cross-claim by which he seeks to exit SBA and realise the value of his investment.

The need for specific and general deterrence

124. As regards specific deterrence, I am satisfied, for reasons set out above, that Mr Sundarjee’s contrition is genuine and that his conduct was out of character. The humiliation that he has so far suffered from charges of criminal contempt being brought against him and that he will suffer from the making of declarations about his conduct and the publication of this judgment is significant, as are the costs he has incurred to date in respect of these contempt proceedings (even before consideration of any adverse costs order or fine).

125. Having regard to those matters, I accept that Mr Sundarjee now appreciates the seriousness of his conduct and that it is highly unlikely that he would engage in similar conduct in the future.

126. However, there remains the need for general deterrence. Mr Sundarjee deliberately destroyed files with the intention that some or all of them would not be able to be produced pursuant to an order of the Court. Although he did not do so with the intention of undermining the integrity of the Court, his conduct did have that effect.

127. An important purpose of sentencing is to make clear the Court’s disapproval of such conduct as well as to set a punishment that will further the purpose of general deterrence: Mirus Australia Pty Ltd v Gage [2018] NSWSC 35, Ward CJ at [67]. Her Honour there observed that:

“As any regular observer of the duty judge list in the Equity Division will know, time and again there are applications brought for urgent (usually ex parte) relief in relation to allegations of misappropriation of confidential information. In the modern electronic era, for those accused of such wrongdoing to consider that they are in a position with impunity to destroy or manipulate electronic evidence in an attempt to render forensic investigation of the subject matter of the complaint impossible cannot be encouraged. Mr Gage, both through his Senior Counsel and in his evidence on the sentencing application, properly concedes that this is a serious matter. The sentence must reflect this.”

Other sentencing decisions

128. As Ward CJ in Eq observed in Mirus Australia Pty Ltd v Gage [2018] NSWSC 35 at [70], although prior decisions may provide some assistance to the Court, they do not provide any safe guide to the proper punishment for contempt of court because both the nature of the contempt itself and its consequences vary so greatly in different cases.

129. While recognising that important note of caution, SBA submitted that the sentencing decisions in Corry (No 8) and Sun v He (No 2) provided some assistance in determining an appropriate sentence for Mr Sundarjee’s contempt.

130. In the first, Mr Corry was charged and found guilty of withholding discoverable documents within his possession and control; misusing confidential information; and deliberately breaching a search order. For breaching the search order, he was sentenced by Bell P to imprisonment for a term of two months, to be served concurrently with the sentences for the other contempts.

131. In the second, Mr He was charged with the following conduct in the course of a search order against him: deleting electronic records, refusing to provide passwords, refusing access to the premises, and refusing to disclose the location of his devices. For deleting electronic records, he was sentenced by Ward CJ in Eq to a term of imprisonment of 6 weeks, to be served concurrently with the sentences for the other contempts.

132. However, as Mr Sundarjee pointed out, those cases were in various respects markedly different to the present.

133. Mr Corry had been found guilty of three distinct charges of contempt, the first two of which involved misconduct over a period of around ten months. Mr Corry had settled earlier proceedings in which it was alleged he had misused confidential information, on terms whereby he was subject to orders, made by consent, requiring him to return all information and not to use it in competition with NHB Enterprises Pty Ltd. Over the following 10 months, he covertly, and in breach of those orders, retained the information and used it to run a competing business. The third contempt consisted of Mr Corry’s conduct in preventing the transfer of the bulk of electronic information which was the subject of a search order by his remote resetting of the cloud account in which it was contained (Corry (No 8) at [19]). For the latter contempt, Bell P sentenced Mr Corry to two months’ imprisonment, to be served concurrently with a three-month sentence imposed in respect of the other two charges (at [82]-[83]).

134. Mr Corry took those steps to prevent the transfer of electronic information on the day after the execution of the search order, in circumstances where he was aware of the terms of that order: see NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741 (Corry (No 7)) at [333]-[335]. Mr Corry was legally qualified and an officer of the Court, which Bell P regarded as exacerbating his position: Corry (No 8) at [78]. Mr Corry contested the contempt charges and continued, at the sentencing hearing, to cavil with many of the findings made in the liability judgment: Corry (No 8) at [49]-[68]. This undermined the quality and force of his apology for his conduct and his purported acceptance of the Court’s findings: Corry (No 8) at [68], [74].

135. Mr He’s conduct involved the systematic deletion of a large amount of electronic material, his ongoing refusal to provide a device and the passwords necessary to access cloud-based material, and his refusal to allow access to his premises: Sun v He (No 2) at [10]-[13].

136. Mr He was aware of the terms of the Penal Notice and the consequences that might follow from a breach of the search order: at [37]. Despite that, he went to “extraordinary lengths” to prevent access to data on his electronic devices: at [48]. Mr He’s contempts continued after his failed application to vacate the search order and after the search party was permitted to enter his premises: at [31]. His contempts were “all calculated directly to subvert the Court’s authority over its processes”: ibid. His “contumacious conduct” fell “into the most serious class” of contempt: at [90].

137. As recorded in the earlier liability judgment ([2020] NSWSC 802), Mr He concealed devices from the search party (at [251]), completely wiped two mobile phones and an iPad and deleted 8GB of data from his computer (at [265]-[272]), and even wiped one of the phones in the presence of the independent solicitor, having convinced her to hand it to him on the pretext of checking which SIM card was installed (at [122]-[123], [255]-[256]).

138. Mr He did not plead guilty and did not express any remorse until after his conviction. Ward CJ in Eq noted that the expression of contrition had “come most belatedly”. Her Honour found it “inexplicable” that it was only in the course of the sentencing hearing that Mr He took steps to purge his contempt by providing passwords to his material: Sun v He (No 2) at [99].

139. In those circumstances, her Honour was not satisfied that the imposition of a fine would have the necessary punitive effect upon Mr He and thereby satisfy the needs of specific deterrence, along with other sentencing rationales: at [108]-[109]. Further, her Honour made the following observations (at [110]-[112]):

“… during the course of the sentencing hearing, Mr He suggested through his Counsel that he would be able to meet any fine that might be imposed by way of financial support from family members …. In this respect, I see that the availability of such means would, at least to some extent, substantially undermine the punitive effects of a fine and thereby undermine an imperative, or imperatives, in the sentencing exercise.

In this connection, if one were to reason alternatively that Mr He would himself suffer the burdens of any fine imposed, then I would then have concern that that burden might well, in the events that happen, ultimately be visited upon Mr Sun, having regard to the extant freezing regime applicable to the assets of Mr He and his related entities along with the extant claims in the substantive proceedings.

For those reasons, I have concluded that the imposition of even a substantial fine is not an appropriate or available sentence.”

140. Those considerations do not apply here. There is no evidence, or suggestion, that any source of funds is available to Mr Sundarjee to meet an adverse costs order or fine other that his own assets. As set out above, those assets are limited and are also required to meet his own costs of the ongoing proceedings, as well as his mortgage and living expenses. Accordingly, any adverse costs order or fine is likely to impose significant hardship on him. Further, there is no freezing order over any of his assets, such that it cannot be said that recourse to those assets would be to the detriment of SBA. In addition, I have found that any need for specific or personal deterrence in the case of Mr Sundarjee is much more attenuated than in the case of Mr He (whose contempts were continuing at the date of the sentencing hearing).

141. Mr Sundarjee submitted that a more appropriate comparator decision was Mirus Australia Pty Ltd v Gage [2018] NSWSC 35. Mr Gage had been found guilty of one charge of contempt, involving the deletion of electronic files “for the material purpose of preventing some or all of those files and data being produced to the Court and available for use as evidence in these proceedings” (at [2]). This conduct occurred in circumstances where Mr Gage had agreed to consent orders providing for production of his electronic devices on the following day, and had been given a “very specific warning … as to the potential consequences of deletion of material” (at [11]).

140. Ward CJ in Eq accepted that Mr Gage did not understand the legal implications of what he was doing and, in particular, did not appreciate that it would have the effect of impeding the administration of justice (at [16]). Her Honour found (at [65]) that this was “not a case of contumacious disobedience of Court orders”, adding:

“That said, the deliberate destruction of electronic files with a view to making it impossible for the full picture of alleged wrongdoing to be able to be obtained by the Court, in circumstances where Court proceedings were then on foot and not only was the contemnor aware that production of his computer devices was likely imminently to be required but he had also been expressly warned not to delete files (against the possibility of a contempt charge), is a serious matter”.

143. Ward CJ in Eq was not satisfied that imprisonment was the only appropriate penalty, including because Mr Gage had shown (after conviction) remorse and it was unlikely he would reoffend. Her Honour said (at [58]):

“For Mr Gage it was submitted that imprisonment is not an appropriate sentence. I agree. Such a sentence may only be imposed if the Court is satisfied, having considered all possible alternatives, that no other penalty is appropriate. I am not satisfied that a custodial term is the only penalty that is appropriate in the present case, given that Mr Gage was not found guilty of a contumacious disregard of the orders of the Court; nor was this a contempt committed after various earlier contempts. Moreover, this is not a case in which the contemnor has shown no remorse or appreciation of the wrongness of his or her actions. I accept that Mr Gage’s expression of contrition, though late, is genuine and he is unlikely to reoffend.”

144. Her Honour imposed a fine of $40,000, which was suspended on the condition that Mr Gage provide access to electronic files to which he retained the password (at [73]).

Decision on Penalty

145. I will make declarations that Mr Sundarjee committed contempt of Court by his conduct described in the Charges to which he has pleaded guilty.

146. In addition, Mr Sundarjee accepted that it was appropriate that I make orders that he be liable for SBA’s costs of the contempt proceedings against him, on an indemnity basis, up to 16 November 2023 (being the date on which he exercised liberty to relist the matter in order to enter a guilty plea).

147. There was evidence before me that, in the period up to 16 November 2023, SBA had incurred professional costs of $62,500 and disbursements of $77,000. Those figures exclude GST and were described by SBA’s solicitors as a “very rough estimate”. Accepting the uncertainty attaching to this estimate, and the need for such costs to be agreed or assessed, it is nonetheless apparent that the making of an order for indemnity costs in respect of the period up to 16 November 2023 will impose a very significant burden on Mr Sundarjee, which may be in the region of $100,000.

148. SBA also sought its costs since 16 November 2023 on an indemnity basis. Mr Sundarjee submitted that there is no general rule to the effect that costs should be awarded in respect of a sentencing hearing, as distinct from a liability hearing. In this regard, reliance was placed on Mirus Australia Pty Ltd v Gage [2018] NSWSC 35. Ward CJ in Eq there referred to the parties’ submissions regarding the relevant authorities (at [75]-[83]), and made the following observations:

“Costs remain in the discretion of the Court. I am not persuaded that there is an invariable practice in this regard nor that, as a matter of principle, there should be a costs order against the contemnor of a sentencing hearing occurring separate from the hearing of the contempt charge itself. In the present case, I am not persuaded that the costs of the sentencing hearing should be awarded against Mr Gage. I consider that the indemnity costs order imposed for the hearing of the contempt/strike out motions provides a sufficient sanction for the contempt, particularly in circumstances where Mirus’ submissions on sentencing appeared to be redolent of a desire to punish Mr Gage not only for the deletions that occurred but also for the downloading of the information in the first place. While Mirus’ condemnation of Mr Gage’s actions, and his attempts to avoid discovery of his wrongdoing, is understandable, its stance on the sentencing hearing had an adversarial flavour. I have already attempted to make orders to ameliorate the forensic disadvantage Mirus has suffered by Mr Gage’s conduct in striking out parts of his defence. I consider that a further indemnity costs order is not warranted.”

149. Mr Sundarjee did not advance any submission that SBA’s submissions on this sentencing hearing were redolent of a desire to punish him. Nor do I consider there was any basis for criticising the manner in which SBA’s legal representatives conducted this proceeding.

150. Nonetheless, given the history between the parties, there was a personal dimension to the proceedings, and they could not be classed as having been brought purely in the public interest. Much of the hearing was taken up with an extensive attack on Mr Sundarjee’s credit, which I have found not to be made out. Further, SBA’s submissions were directed to establishing that the only appropriate penalty for Mr Sundarjee’s contempt was a term of imprisonment and, as explained below, I have instead largely accepted Mr Sundarjee’s submissions regarding alternative forms of punishment. Having regard to those findings, and also having regard to the indemnity costs order that will be made in respect of SBA’s costs up until 16 November 2023, and the “very rough estimate” of the quantum of those costs, I have determined, in the exercise of my discretion, that there should be no order in respect of the costs of the contempt proceedings in so far as they concern Mr Sundarjee from 16 November 2023 onwards.

151. Having regard to Mr Sundarjee’s assets and liabilities, the burden on him in meeting the order for indemnity costs up to 16 November 2023 will be substantial. While he has the means to pay those costs, particularly when the amount held as guarantee in respect of his daughter’s mortgage is released, such payment will significantly reduce the funds he has available to meet his expenses, and in particular his own ongoing legal costs. The hardship imposed by such costs orders is a matter which I have taken into account in considering whether costs alone a sufficient penalty, or whether some additional punishment is required.

152. I have reached the view that the seriousness and culpability of Mr Sundarjee’s conduct, and the need for general deterrence in respect of such conduct, require the imposition of some further punishment. However, I am not satisfied that a term of imprisonment is the only appropriate penalty. Having regard to his personal circumstances, the imposition of a custodial sentence on Mr Sundarjee would likely have a devastating impact on him and those he supports. Given the genuine contrition of Mr Sundarjee, his acknowledgement of the wrongfulness of his conduct and his apology for it, the high likelihood that he will not engage in such conduct again, the lack of any specific intent to undermine the integrity of the Court or interfere with the administration of justice, and Mr Sundarjee’s personal circumstances, I am satisfied that the recording of a criminal conviction and the imposition of a fine, together with the indemnity costs order which I propose to make, will have the necessary punitive effect upon him, and would satisfy the needs of general deterrence.

153. As regards the quantum of the fine, there is, as Ward CJ in Eq observed in Mirus Australia Pty Ltd v Gage [2018] NSWSC 35 at [71], “a dearth of comparables”. Her Honour referred to the following prior decisions:

“In Maniam No 2 (where there was repeated disobedience to a subpoena to attend and give evidence) the fine was $10,000, but that was back in 1992. More recently, a fine in that amount was imposed in Crane Distribution Ltd v Van Schellebeeck [2009] NSWSC 263 (where there was breach of an asset freezing order), in addition to an order restricting the defendant from taking any step in defence of the proceedings until the contempt was remedied. In Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2017] NSWSC 118, Black J imposed a fine of $50,000 for contempt of Court in circumstances where the respondent had caused a company to breach an undertaking to the court.”

154. Having referred to those authorities, her Honour imposed a fine of $40,000 on Mr Gage.

155. Having regard to that limited guidance, and also having regard to the significant adverse costs that Mr Sundarjee will be required to meet, his financial circumstances, and the findings I have made about his conduct, I have concluded that a fine of $50,000 should be imposed.

156. Mr Sundarjee submitted that, if I determined to impose a fine, such punishment should be suspended, on condition that Mr Sundarjee perform a specified number of hours of community service.

157. Such a course was adopted by Bell P in Corry (No 8), when sentencing Mrs Corry. She had been found guilty of criminal contempt by covertly disclosing the fact of a search order to her husband, contrary to a “clear warning” which was given to her on at least three occasions that she would be in breach of a Court order if she did so (see Corry (No 8) at [87]; and also Corry (No 7) at [351]-[352]). Bell P imposed a fine of $15,000, which was suspended on condition that Mrs Corry furnish to the Registrar of the Equity Division, within 18 months, proof that she had performed 25 hours of community service for a school, church or other registered charitable organisation: Corry (No 8) at [96].

158. An earlier example is provided by Maniam (No 2). In that case, the Court ordered that the contemnor (who was a medical practitioner) pay a fine of $10,000, but the fine was suspended on condition that he perform 100 hours of voluntary service as a medical practitioner at Liverpool Hospital, and that he provide to the Registrar of the Court of Appeal, by a date around 7 months after the date of the orders, a certificate from the Director of Medical Services of the hospital certifying to his satisfactory performance of those 100 hours of voluntary service. Kirby P explained the rationale for these orders as follows:

“In my opinion it is appropriate, to mark the Court’s disapproval of the opponent’s conduct, to require the opponent to undertake to perform what would be, in effect, community service at the Liverpool Hospital. Such a punishment would have the benefit of utilising his undoubted talents and capacities as a medical practitioner. It would afford him the opportunity to reflect, during such service, on his duties to the public which, ultimately, the Court is enforcing by protecting the administration of justice through the law of contempt. A similar type of order for community service was made in the

Western Australian Supreme Court by Ipp J: see R v Eades (Supreme Court of Western Australia, 1 November 1991, unreported).

The Court has no express power to impose an obligation of community service on the opponent: cf Community Service Orders Act 1979, s 4. Although punishment for contempt is criminal in nature, it derives from the inherent power of the Supreme Court. It therefore does not attract the express statutory provisions relating to community service. Nevertheless, it was not contested by either party that the Court might, in effect, impose an obligation of community service in the Liverpool Hospital provided the hospital was prepared to accept the opponent and as a condition for suspending the operation of the fine which would otherwise be imposed: cf Adams v Carr (1987) 47 SASR 205 at 211. Placed before the Court, after argument was concluded, was a letter from the Liverpool Health Service expressing the Liverpool Hospital’s willingness to accept voluntary service by the opponent on Sundays from 9am to 1pm in the Hospital’s Emergency Department.”

159. Mr Sundarjee put before the Court communications with various community organisations, in the week before the hearing. In the main part, the organisations thanked him for expressing interest in volunteering, and indicated that a response would be forthcoming. However, a letter dated 1 March 2024 from RAIN indicated both a willingness to take on Mr Sundarjee as a volunteer and an ability to provide him with the opportunity to work for up to 16 hours per week.

160. The letter from the General Manager of RAIN stated as follows:

“RAIN conducts the Commonwealth Home Support Package (CHSP). Under this program, RAIN organises activities for frail seniors, designed to develop, maintain or support their capacity for independent living as well as social interaction, conducted in the setting of our day care centre or on organised outing. This programme is approved and funded by the Commonwealth Government.

RAIN also provides Home Care packages for Culturally and Linguistically Diverse Senior Australians of the Indian Sub-Continent Community with Special Needs. This programme is also approved and funded by the Commonwealth Government.

RAIN makes use of volunteer assistance to conduct both of these programmes.

We confirm that the volunteer work you would be doing would involve:

1. Assisting in picking and dropping the seniors

2. Taking care of seniors by assisting them during the activities

3. Helping in arranging the chairs and tables

4. Serving them snacks, tea and lunch

5. Any other tasks as directed by the Programme Facilitator on the day.

We expect that we would have work for you up to 16 hours per week.

As part of our processes, and as a requirement of Commonwealth Government funding, we regularly record the attendance of our volunteers including the times of their attendance. We propose to record the time you spend with us using our usual processes so that you can provide a record to the Court or any other person if required.”

161. Having regard to all the circumstances of this case, I consider it appropriate to suspend the fine on Mr Sundarjee on condition that he provide proof from RAIN, within 12 months of the date of the Court’s orders, that he has performed 100 hours of voluntary service for that organisation.

orders

162. For those reasons, I make the following orders:

1. Declare that the Fourth Defendant was in contempt of this Court by engaging in the conduct described in each of:

1. Charge 1 (excluding subparagraph (a) of that Charge); and

2. Charge 2 (excluding subparagraph (a) of that Charge);

in the Statement of Charge at Annexure B to the Plaintiff’s Notice of Motion filed on 19 September 2023.

2. Order that the Fourth Defendant pay a fine of $50,000.

3. Order that Order 2 is to be suspended on the condition that the Fourth Defendant furnishes to the Registrar of the Equity Division, within 12 months of the date of this Order, proof that he has performed 100 hours of voluntary service for the Resourceful Australian Indian Network Inc.

4. Order that the Fourth Defendant is to pay the Plaintiff’s costs of the Notice of Motion filed on 19 September 2023 in respect of the charges against the Fourth Defendant, on an indemnity basis, up until 16 November 2023.

5. There be no order as to the costs of the Notice of Motion filed on 19 September 2023 in respect of the charges against the Fourth Defendant, from 16 November 2023.

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Amendments

18 March 2024 - Typographical error in 3rd sentence of p107 - addition of 'not'

Decision last updated: 18 March 2024