The Commissioner for Consumer Protection v Armstrong [No 2]
[2014] WASC 167
•19 MAY 2014
THE COMMISSIONER FOR CONSUMER PROTECTION -v- ARMSTRONG [No 2] [2014] WASC 167
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 167 | |
| Case No: | CIV:1611/2012 | 12 MAY 2014 | |
| Coram: | BEECH J | 19/05/14 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Finding of contempt | ||
| B | |||
| PDF Version |
| Parties: | THE COMMISSIONER FOR CONSUMER PROTECTION FAY MARIE ARMSTRONG |
Catchwords: | Courts and judges Contempt of court Contempt by breaching terms of injunction |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 97, s 98 |
Case References: | Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; (2001) 122 A Crim R 166 Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Australian Competition & Consumer Commission v Chaste Corporation Pty Ltd (No 6) [2013] FCA 1112 Briggs v Lunt [No 4] [2011] WASCA 145 Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 Deckers Outdoor Corporation Pty Ltd v Farley (No 6) [2010] FCA 391 Domican v R (1992) 173 CLR 555 International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201 Miller v Eurovox Pty Ltd [2004] VSCA 211 Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 R v Lovelady; Ex parte Attorney General [1982] WAR 65 R v Pearce (1992) 7 WAR 395 Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Ronowska v Kus (No 2) (2012) 221 A Crim R 261 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 The Commissioner for Consumer Protection v Armstrong [2012] WASC 206 The Commissioner for Consumer Protection v Armstrong [2012] WASC 206 (S) Winmar v The State of Western Australia [2007] WASCA 244 Witham v Holloway (1995) 183 CLR 525 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
FAY MARIE ARMSTRONG
Defendant
Catchwords:
Courts and judges - Contempt of court - Contempt by breaching terms of injunction
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 97, s 98
Result:
Finding of contempt
Category: B
Representation:
Counsel:
Plaintiff : Mr M G S Crowley
Defendant : No appearance
Solicitors:
Plaintiff : Department of Commerce
Defendant : No appearance
Case(s) referred to in judgment(s):
Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; (2001) 122 A Crim R 166
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Competition & Consumer Commission v Chaste Corporation Pty Ltd (No 6) [2013] FCA 1112
Briggs v Lunt [No 4] [2011] WASCA 145
Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195
Deckers Outdoor Corporation Pty Ltd v Farley (No 6) [2010] FCA 391
Domican v R (1992) 173 CLR 555
International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201
Miller v Eurovox Pty Ltd [2004] VSCA 211
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258
R v Lovelady; Ex parte Attorney General [1982] WAR 65
R v Pearce (1992) 7 WAR 395
Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309
Ronowska v Kus (No 2) (2012) 221 A Crim R 261
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
The Commissioner for Consumer Protection v Armstrong [2012] WASC 206
The Commissioner for Consumer Protection v Armstrong [2012] WASC 206 (S)
Winmar v The State of Western Australia [2007] WASCA 244
Witham v Holloway (1995) 183 CLR 525
1 BEECH J: The Commissioner for Consumer Protection (the Commissioner) seeks an order that Ms Fay Armstrong, the defendant, be committed for contempt of court for disobedience of orders I made on 22 August 2012.
Background to the orders of 22 August 2012
2 The background to the orders I made on 22 August 2012 is set out in my reasons for decision in The Commissioner for Consumer Protection v Armstrong.1 In broad summary, following the expression by the Commissioner of concerns about Ms Armstrong's conduct in advertising and selling puppies, and following the commencement by the Commissioner of proceedings in relation to that conduct, Ms Armstrong signed an enforceable undertaking.
3 The terms of the undertaking given by Ms Armstrong were as follows:
The terms of the undertaking (the Enforceable Undertaking) given by Ms Armstrong are as follows:
I, Fay Marie ARMSTRONG, UNDERTAKE to the COMMISSIONER FOR CONSUMER PROTECTION for the purpose of section 218 of the Australian Consumer Law (WA) that I will not, whether by my servants, agents or otherwise:
1 represent, whether expressly or impliedly, that any animal that I sell or offer for sale is in good health, has been vaccinated, or has been wormed, without first obtaining a written report of a suitably qualified veterinarian stating precisely that;
2 sell or offer for sale an animal without first obtaining a written report of a suitably qualified veterinarian as to the animal's condition;
3 sell or offer for sale an animal without providing to the purchaser a written report of a suitably qualified veterinarian as to the animal's condition;
4 sell or offer for sale an animal with parvovirus, hepatitis, distemper, parainfluenza, or bordatellabronciosepta;
5 sell or offer for sale an animal without first having that animal tested for and vaccinated against parvovirus, hepatitis, distemper, parainfluenza, or bordatellabronciosepta;
6 without limiting any of the above, enter into an agreement for the supply of a dog without obtaining and providing a written report of a suitably qualified veterinarian as to the animal's condition;
7 without limiting any of the above, accept payment or other consideration for the supply of an animal without obtaining and providing a written report of suitably qualified veterinarian as to the animal's condition.
In so undertaking I understand that this undertaking is ENFORCEABLE by the Commissioner for Consumer Protection in the Supreme Court of Western Australia, and the sanctions described in section 218 of the Australian Consumer Law (WA) for breach are available.
4 In these proceedings, by originating motion dated 12 April 2012, the Commissioner claimed declarations that Ms Armstrong had breached the enforceable undertaking, permanent injunctions restraining Ms Armstrong, in effect, from engaging in conduct in breach of the enforceable undertaking, and orders for compensation.
5 On 21 June 2012, I published reasons for decision in which I concluded that:
(1) I was satisfied that Ms Armstrong had breached the enforceable undertaking in the various respects alleged by the Commissioner;
(2) I had doubt about whether any declarations should be made, but invited further submissions on that topic;
(3) injunctions should be granted in terms which in effect required compliance with the enforceable undertaking; and
(4) I would make orders for compensation in the terms sought by the Commissioner.
6 Following further submissions I published further reasons for decision on 22 August 2012.2
The orders
7 Also on 22 August 2012 I made orders (the Orders) including declarations, injunctions and orders for compensation. Paragraph 3 of the Orders was in the following terms:
The defendant is permanently restrained, whether by her servants, agents, or howsoever otherwise, from:
3.1 representing, whether expressly or impliedly, that any animal that sold or offer for sale is in good health, has been vaccinated, or has been wormed, without first obtaining a written report of a qualified veterinarian stating precisely that;
3.2 selling or offering for sale an animal without first obtaining a written report of a qualified veterinarian as to the animal's condition;
3.3 selling or offer for sale an animal without providing to the purchaser a written report of a qualified veterinarian as to the animal's condition;
3.4 selling or offer for sale an animal with parvovirus, hepatitis, distemper, parainfluenza, or bordatellabronciosepta;
3.5 selling or offer for sale an animal without first having that animal tested for and vaccinated against parvovirus, hepatitis, distemper, parainfluenza, or bordatellabronciosepta;
3.6 without limiting any the above, entering into an agreement for the supply of a dog without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition; and
3.7 without limiting any the above, accepting payment or other consideration for the supply of an animal without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition.
The Commissioner's application
8 By notice of motion dated 19 August 2013, the Commissioner seeks an order that Ms Armstrong be committed for contempt for her conduct in breaching par 3 of the Orders.
9 On 7 November 2013, Ms Armstrong was personally served with the notice of motion and the affidavit in support.3
10 On 21 November 2013, the matter came before me for directions. Ms Armstrong appeared at the directions hearing. Directions were made, and it was ordered there be a further directions hearing on 19 December 2013.
11 On 19 December 2013, Ms Armstrong did not appear. I granted leave for the Commissioner to amend the notice of motion.
12 The amended notice of motion seeks an order that:
The defendant be committed for contempt of court for disobedience of the Orders made by his Honour Justice Beech on 22 August 2012 in [these proceedings] in that by selling or offering for sale a puppy to Ms Michelle Brown (the complainant) on or about 10 November 2012:
1.1 Without providing to the Complainant a written report of a suitable qualified veterinarian as to the puppy's condition, the Defendant did knowingly contravene Order 3.3 of the Restraining Orders;
1.2 Which was infected with the disease parvovirus, the Defendant did knowingly contravene Order 3.4 of the Restraining Orders;
1.3 Entering into an agreement with the Complainant for the supply of a dog without providing the Complainant a written report of a suitably qualified veterinarian as to the animal's condition, the Defendant did knowingly contravene Order 3.6 of the Restraining Orders;
1.4 Accepting payment of $450 from the Complainant for the supply of an animal without providing to the Complainant a written report of a suitably qualified veterinarian as to the animal's condition, the Defendant did knowingly contravene Order 3.7 of the Restraining Orders.
13 On 19 December 2013, I made further directions for the filing of submissions and affidavits by each party. The matter was listed for further directions on 13 March 2014.
14 By letter of 19 December 2013 sent to Ms Armstrong at 18 Adela Place, Spearwood, the Commissioner enclosed the amended notice of motion and set out the directions made on 19 December 2013, including that there be a directions hearing on 13 March 2014.4
15 On 13 March 2014, I made orders that the matter be listed for final hearing for a duration of three hours on a date to be fixed and that the parties provide their unavailable dates for hearing in May 2014 by 20 March 2014.
16 On 21 March 2014, the matter was listed for hearing on 12 May 2014.
17 By letter of 25 March 2014, the Commissioner wrote to Ms Armstrong at 18 Adela Place, Spearwood, notifying her that the application was listed for hearing on 12 May 2014.5
18 The Commissioner filed submissions. Ms Armstrong has not filed any submissions, and did not appear at the hearing on 12 May 2014.
19 The court has power to proceed with the hearing of the contempt application notwithstanding the absence of Ms Armstrong.6
20 I am satisfied that it was appropriate to proceed with the hearing of the Commissioner's application notwithstanding Ms Armstrong's absence. She was personally served with the originating motion, and appeared at the first directions hearing. At no stage did she communicate with the court or the Commissioner thereafter. I am satisfied that she had notice of the hearing. She has not taken any step to indicate that she could not appear at the hearing, or to seek any adjournment.
Contempt: general principles
21 The following outline of general principles draws heavily on the outline in Perpetual Trustees Victoria Ltd v Allen.7
22 An allegation of contempt is criminal in nature. All elements must be proved beyond reasonable doubt.8 The onus of proof is on the Commissioner, as the party who makes the allegation of contempt.
23 It has often been observed that criminal contempt of court is the only common law criminal offence in Western Australia.9 However, contempt by disobedience to an order or judgment of the court now has a statutory setting in the Civil Judgments Enforcement Act 2004 (WA).
24 Under the Civil Judgments Enforcement Act a person who disobeys a judgment requiring a person to do, or to not do an act, apart from a money judgment or a judgment for possession, is guilty of a contempt of court: see s 97 and s 98.
25 The underlying rationale for the exercise of the contempt power is to uphold and protect the effective administration of justice.10
26 The plaintiff's primary case is that the defendant is guilty of criminal contempt. Deliberate or contumacious defiance of a court order constitutes criminal contempt.11
27 If a breach of an order is a result of 'casual, or accidental and unintentional disobedience' then there is no power to impose a fine.12
28 In order to prove contempt by disobedience of an order, it is necessary to show that the disobedience was deliberate. That does not require a specific intention to break the law. What is required is proof that the alleged contemnor was aware of the facts that make the act a breach of the order.13
29 It is also necessary to prove that the alleged contemnor knew of the terms of the relevant order, or at least of the substance of the orders.14 In this case, Ms Armstrong was not served with the formal extracted form of the Orders until after the conduct the subject of this application. That in itself is not fatal to the application, but the Commissioner must satisfy the court beyond reasonable doubt that Ms Armstrong was, as at 10 November 2012, aware of the substance of the Orders.
30 Proof of contempt must be by admissible evidence. A contempt application is not an interlocutory application, so hearsay evidence is not admissible under O 37.15
31 The Commissioner is bound by her particulars of the alleged contempt.16
Affidavit of Ms Armstrong
32 Ms Armstrong filed an affidavit of 20 November 2013. In that affidavit she asserted that she revoked the enforceable undertaking and made some allegations about conduct on the part of the solicitor for the Commissioner.
33 Nothing in Ms Armstrong's affidavit is in any way relevant. Ms Armstrong's assertions about having withdrawn the enforceable undertaking are not capable of assisting her in this application. This contempt application is not an occasion for ventilating an issue about the enforceable undertaking. The enforceable undertaking has been overtaken by the Orders. An order of the court is valid unless and until set aside and must be obeyed.
The elements of the contempt
34 The contempt alleged by the Commissioner requires her to prove the following matters beyond reasonable doubt:
(1) that Ms Armstrong was, as at 10 November 2012, aware of the terms of the Orders, or their substance;
(2) that Ms Armstrong was the person, known as 'Marie', with whom the complainants Mr and Mrs Brown dealt;
(3) that 'Marie's' conduct in the course of the sale of a puppy to Ms Brown contravened the Orders in one or more of the respects alleged by the Commissioner in the amended notice of motion; and
(4) that an inference can be drawn that Ms Armstrong knew that her conduct in the sale of a puppy to Ms Brown was in breach of the Order.
For the reasons that follow, I am satisfied beyond reasonable doubt in respect of each of these matters. I will deal with them in turn.
Ms Armstrong's awareness of the substance of the terms of the Orders
35 Ms Armstrong was not personally served with an extracted copy of the Orders until after the breach the subject of this application. Nevertheless, for the reasons that follow, I am satisfied that as at 10 November 2012, when the conduct the subject of this application occurred, Ms Armstrong was aware of the terms or substance of the Orders.
36 At the outset, it should be noted that the terms of the Orders substantially mirror the terms of the enforceable undertaking.
37 The Commissioner's originating notice of motion sought injunctions substantially to the same effect as the Orders. Ms Armstrong was personally served with the notice of originating motion.17
38 Ms Armstrong collected from the court a letter dated 17 July 2012 enclosing the reasons of 21 June 2012 and enclosing a minute of the orders proposed by the Commissioner, which included, in substance, the Orders. Following this, by letter of 19 July 2012 Ms Armstrong wrote to the court and to the Commissioner in terms which demonstrate that she had read and understood the letter of 17 July 2012. In that letter to the court, Ms Armstrong nominated 18 Adela Place, Spearwood as her address. Ms Armstrong also nominated this address in other correspondence and in court documents.
39 On 4 September 2012, the Commissioner's solicitor sent a letter to Ms Armstrong at 18 Adela Place, Spearwood outlining the substance of the Orders and referring to the consequences of breaching the Orders.18
40 On 11 September 2012, an officer of the Commissioner slid copies of documents, including the Orders, underneath the front door of Ms Armstrong's house at 18 Adela Place, Spearwood. Mr Davenport also attached an additional copy of the Orders to the front door with tape. When he returned 35 minutes later, that copy of the Orders had been removed.19
'Marie' is Ms Armstrong
41 For the reasons that follow, I am satisfied that the person identified as 'Marie' is Ms Armstrong.
42 In coming to that conclusion, I have taken into account that much of the evidence in support of that conclusion is in the nature of identification evidence, and special caution is needed in relation to evidence of identity.20
43 Mr and Mrs Brown met with the person who identified herself as Marie on 10 November 2012. On 27 November 2012, Ms Brown saw a news item describing and showing an image of Ms Armstrong. Ms Brown says that the person showing on that news item was the person who identified herself as Marie and sold her a puppy on 10 November 2012.21
44 On 11 April 2013, Ms Brown watched a DVD with four news stories showing images of Ms Armstrong. Ms Brown identifies those images as being the same person that she identified as Marie.22
45 Mr Brown also identifies the same four news items as showing the person who had presented to him as Marie on 10 November 2012, although he was not shown the footage until much later, on 23 January 2014.
46 The evidence of Ms La and Ms Stokes satisfies me that the person shown on the four news stories is Ms Armstrong.
47 By itself, the evidence I have outlined would fall short of satisfying me beyond reasonable doubt as to the identity of the person known as Marie. However, there is other circumstantial evidence which, combined with the identification evidence to which I have referred, satisfies me beyond reasonable doubt that 'Marie' was Ms Armstrong.
48 The descriptions given by Mr and Mrs Brown of Marie matches Ms Armstrong.
49 Marie is Ms Armstrong's middle name.
50 There is a striking similarity between the conduct of Marie, and the previous conduct of Ms Armstrong the subject of the proceedings giving rise to the Orders. Both Ms Armstrong and Marie advertised puppies for sale in the Quokka; proposed a meeting in a public place, not at a fixed address; provided only a mobile phone number as a means of contact; operated in the southern suburbs of Perth; sold puppies which were infected with parvovirus; and spoke in a way that suggested she was knowledgeable about parvovirus.
Did Ms Armstrong's conduct breach the Orders?
51 Mr and Mrs Brown gave evidence of what occurred when they bought a puppy from the person known as Marie. They were not cross-examined, and there is no evidence to the contrary. I am satisfied beyond reasonable doubt of the following matters.
52 Ms Brown saw an advertisement in the Quokka newspaper of 8 November 2012. The advertisement offered for sale Labrador puppies for $450. The advertisement showed a mobile number 0447 049 718.
53 Ms Brown telephoned the number and spoke to a person who identified herself as Marie. After some discussion, they agreed to meet on 10 November 2012. They spoke again that day and arranged to meet that afternoon at a park in Sussex Street Fremantle.
54 Ms Brown went with her husband Mr Raymond Brown and her two children. They took $450 cash to pay for the puppy.
55 Ms Brown asked whether the puppy had been vaccinated. Marie said that it had. When Ms Brown asked whether she had the vet card, Marie said that she did but that it had other pups on it, saying that she would photocopy the vet card and post it to her. Marie asked Ms Brown to text her address to her.
56 After further discussion, Ms Brown agreed to buy the puppy for $450. She paid $450 for the puppy and they left.
57 Three days later, that Tuesday evening, the puppy became sick.
58 On the Wednesday afternoon Mr Brown took the puppy to the vet. The vet told Mr Brown that the puppy had parvovirus and that it would cost between $3,000 and $4,000 to treat. That conversation is not evidence that the puppy did in fact have parvovirus, but I am satisfied of that by the evidence of Dr Cindy Matthews.
59 Mr and Mrs Brown decided that they could not afford to pay for the treatment so the puppy had to be put down.
60 That evening, there was an exchange by text between Ms Brown and Marie.
61 No vet card was ever sent to Ms Brown.
62 I am satisfied that, by her conduct of the sale of the puppy to Ms Brown, Ms Armstrong breached the Orders in the following respects, being the respects alleged in the amended notice of motion.
63 First, par 3.3 of the Orders prohibited Ms Armstrong from selling or offering for sale an animal without providing to the purchaser a written report of a qualified veterinarian as to the animal's condition. Ms Armstrong did not provide a written report before offering the puppy for sale, and selling it.
64 Secondly, par 3.4 of the Orders prohibited Ms Armstrong from selling an animal with, among other things, parvovirus. On 14 November 2012, a veterinarian, Dr Matthews, examined the puppy and administered a test which returned a strong positive result for parvovirus. Given the unchallenged evidence about the incubation period for parvovirus, I am satisfied that the puppy sold by Ms Armstrong had parvovirus when it was sold.
65 Thirdly, par 3.6 of the Orders restrained Ms Armstrong from entering an agreement for the supply of a dog without first obtaining and providing to the buyer a written report of a qualified veterinarian as to the animal's condition. For the reasons already given, in agreeing with Ms Brown to sell the puppy, she did not provide any written report, thereby breaching par 3.6 of the Orders.
66 Fourthly, par 3.7 of the Orders restrained Ms Armstrong from accepting payment for the supply of an animal without first obtaining and providing a written report of a qualified veterinarian as to the animal's condition. For the reasons already given, in the circumstances outlined above, in accepting payment of $450 from Ms Brown, Ms Armstrong breached this paragraph of the Orders.
67 That brings me to the question of Ms Armstrong's knowledge.
Ms Armstrong's knowledge
68 In the absence of evidence from Ms Armstrong about her state of mind, a finding as to her knowledge involves the drawing of an inference. Given the criminal nature of these proceedings, the court can draw an inference adverse to Ms Armstrong only if it is the only reasonable inference.23
69 I am not satisfied beyond reasonable doubt that Ms Armstrong knew that the puppy had parvovirus. While there is reason to conclude that she may well have known of a risk in that regard, the evidence does not satisfy me that, at the time she sold the animal, she knew it had parvovirus.
70 The gravamen of the other three species of breaching conduct all involve dealing with the purchaser, by selling or offering to sell, by entering into an agreement, and by accepting payment, without providing a written report as to the animal's condition. I am satisfied, as a matter of common sense, that Ms Armstrong knew that she was selling the animal, entering into an agreement to supply, and accepting payment, and that she knew that she was not providing to the purchaser Ms Brown any written report of a qualified veterinarian. In my view, on the material before me, no other inference is reasonably available.
Conclusion
71 For these reasons, I am satisfied beyond reasonable doubt that Ms Armstrong committed a contempt of court by disobeying par 3 of the Orders in the three respects referred to above, namely in the respects alleged in pars 1.1, 1.3 and 1.4 of the Commissioner's amended notice of motion.
72 I will hear further from the parties in relation to the question of punishment.
1The Commissioner for Consumer Protection v Armstrong [2012] WASC 206.
2The Commissioner for Consumer Protection v Armstrong [2012] WASC 206 (S).
3 Affidavit of Mark Riddle 15 November 2013.
4 Affidavit of Karen La 30 January 2014 [14], KL 11.
5 Affidavit of Ms La 12 May 2014.
6Ronowska v Kus (No 2) (2012) 221 A Crim R 261 [51] - [57]; Australian Competition & Consumer Commission v Chaste Corporation Pty Ltd (No 6) [2013] FCA 1112 [15] - [17].
7Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 [18] - [30].
8Witham v Holloway (1995) 183 CLR 525, 534.
9R v Lovelady; Ex parte Attorney General [1982] WAR 65, 66; Briggs v Lunt [No 4] [2011] WASCA 145 [34].
10Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107; Miller v Eurovox Pty Ltd [2004] VSCA 211 [29]; Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, 313 - 314.
11Witham v Holloway (530); Australasian Meat Industry Employees' Union v Mudginberri Station (108).
12Witham v Holloway (541); Australasian Meat Industry Employees' Union v Mudginberri Station (109 - 115).
13International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201 [43] - [68]; Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 [5].
14Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; (2001) 122 A Crim R 166 [1], [53]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [31] - [32]; Deckers Outdoor Corporation Pty Ltd v Farley (No 6) [2010] FCA 391 [147].
15Briggs v Lunt [No 4] [42].
16R v Pearce (1992) 7 WAR 395; Kendall C & Curthoys J, Civil Procedure in Western Australia [55.5.1].
17 Affidavit of Stefan Reksmiss 8 June 2012 [10] - [16]; see Commissioner for Consumer Protection v Armstrong [15].
18 Affidavit of Ms La 30 January 2014 [6], KL 4.
19 Affidavit of Ross Davenport 6 December 2012.
20 See, for example Domican v R (1992) 173 CLR 555, 560 - 564; Winmar v The State of Western Australia [2007] WASCA 244.
21 Affidavit of Michelle Brown 15 August 2013 [36] - [38].
22 Supplementary affidavit of Michelle Brown 23 January 2014.
23Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.
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