Toll Transport Pty Ltd v Erikson (No.3)
[2018] FCCA 1120
•11 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOLL TRANSPORT PTY LTD & ORS v ERIKSON (No.3) | [2018] FCCA 1120 |
| Catchwords: PRACTICE AND PROCEDURE – Contempt – sentencing – failure to comply with Court orders – respondent found guilty of contempt on two charges – fine imposed of $10,000 – payment suspended subject to compliance with Court orders – whether, by operation of s.79(1) of the Federal Circuit Court of Australia Act 1999 (Cth), the costs limitation in s.570 of the FairWorkAct2009 (Cth) (“FW Act”) applies to or affects the exercise of the Court’s discretion regarding costs in contempt proceedings – held contempt proceedings a species of proceedings separate and distinct from other proceedings – Court’s discretion not constrained by operation of s.570 of FW Act – costs of contempt proceedings ordered to be taxed on a party-party basis. |
| Legislation: FairWorkAct 2009 (Cth), s.570 |
| Cases cited: AGL Energy Limited v Hardy (No.2) [2017] FCA 863 Director of the Fair Work Building Industry Inspectorate v Cartledge (No.2) [2015] FCA 851 Pattison (Trustee), in the matter ofBell (Bankrupt) v Bell [2007] FCA 137 Toll Transport Pty Ltd & Ors v Erikson [2017] FCCA 3120 |
| First Applicant: | TOLL TRANSPORT PTY LTD (ACN 006 604 191) |
| Second Applicant: | TOLL PERSONNEL PTY LTD (ACN 110 880 503) |
| Third Applicant: | TOLL HOLDINGS LTD (ACN 006 592 089) |
| Respondent: | NEIL LUKE ERIKSON |
| File Number: | MLG 2651 of 2017 |
| Judgment of: | Judge Jones |
| Hearing date: | 13 March 2018 |
| Date of Last Submission: | 16 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 11 May 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr Tehan |
| Solicitors for the Applicants: | Herbert Smith Freehills |
| The Respondent appeared in person. |
ORDERS
The proceeding is adjourned for directions on 15 May 2018 at 10.15am before Judge Wilson.
The Respondent is fined as follows:
(a)$5,000 for the proved Charge 2; and
(b)$5,000 for the proved Charge 3.
The payment of the fines ordered in (2) above be suspended for so long as the Respondent complies with Order 7 of the orders of the Court made on 7 December 2017.
Orders (2) and (3) above are wholly discharged at the conclusion of a two-year period, or an earlier period by further order of the Court, commencing on the pronouncement of these Orders if, during that period, the Respondent has complied with Order 7 of the orders of the Court made on 7 December 2017.
The Respondent pay the Applicants’ costs of and incidental to the Application in a Case filed by the Applicants on 19 December 2017 that the Respondent be charged with contempt, such costs to be assessed on a party-party basis.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2651 of 2017
| TOLL TRANSPORT PTY LTD (ACN 006 604 191) |
First Applicant
| TOLL PERSONNEL PTY LTD (ACN 110 880 503) |
Second Applicant
| TOLL HOLDINGS LTD (ACN 006 592 089) |
Third Applicant
And
| NEIL LUKE ERIKSON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 February 2018, I made findings that two out of three charges of contempt pursued by the Applicants (“Toll”) arising from the Respondent’s (“Mr Erikson”) breach of the orders of the Court dated
7 December 2017 (Toll Transport Pty Ltd & Ors v Erikson [2017] FCCA 3120 (“the Interlocutory Decision”))[1] had been proven (Toll Transport Pty Ltd & Ors v Erikson(No.2) [2018] FCCA 308 (“the Contempt Decision”) at [55], [62]).
[1] A copy of the orders dated 7 December 2017 are annexed to this judgment (Appendix A).
The Court’s power to punish for contempt is set out in s.17(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”) and the conduct of the contempt proceedings in this case is governed by r.19.02 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
Having found that two out of the three charges of contempt were proved, in accordance with r.19.02(7) of the FCC Rules the matter was listed for hearing on 13 March 2018 to consider whether an order for the punishment of Mr Erikson should be made pursuant to r.19.02(8) of the FCC Rules (“the Penalty Hearing”).
At the Penalty Hearing, the Court had before it:
a)
an Affidavit affirmed by Anthony Andrew Keir Wood filed on
22 February 2018; and
b)
an Outline of Submissions filed by Toll on
22 February 2018 in accordance with the orders made by the Court on 15 February 2018.
In considering whether and what orders the Court may make as punishment for contempt under s.17(1) of the FCCA Act and r.19.02(8) of the FCC Rules, I accept the submission of Toll that, as s.17(1) of the FCCA Act has the same effect as s.31 of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”), the Court can be guided by the Federal Court of Australia authorities on the powers under s.31 of the FCA Act.
In Pattison (Trustee), in the matter ofBell (Bankrupt) v Bell [2007] FCA 137 (“Pattison”), Gray J considered the operation of s.31 of the FCA Act and concluded that the Federal Court’s sentencing power was “…restricted to common law penalties for contempt of court. Those penalties are limited to a fine, a term of imprisonment or a combination of the two” (Pattison at [48]). Justice Gray’s observations have been subsequently cited with approval.[2]
[2] See e.g. Australian Competition and Consumer Commission v Jutsen (No.6) [2012] FCA 809 at [6].
In Ali v Collection Point Pty Ltd, in the matter of Collection Point Pty Ltd (No.3) [2010] FCA 1176 (“Ali”), Gordon J relevantly observed the following (Ali at [3]):
3. …A Court has considerable flexibility in that it may impose a penalty of fines or imprisonment and then suspend such penalty on conditions or terms: see Universal City Studios LLLP v Hoey (2007) 73 IPR 45 at [90]; Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137 at [49].
Counsel for Toll at the Penalty Hearing informed the Court that whilst Toll seeks that Mr Erikson be punished for his contempt, it does not propose a specific form of punishment. Toll do, however, seek that the Court make an order for indemnity costs against Mr Erikson.
The two charges of contempt proved were, in summary, that Mr Erikson:
a)
breached Order 7(a) of the orders made by the Court on
7 December 2017 on the basis that he failed to remove from his YouTube site the video referred to at Item 6 of Schedule A to the orders (“the video”) (“Charge 2”); and
b)
breached Order 7(b) of the orders made by the Court on
7 December 2017 on the basis that he failed to remove from his Twitter account a photograph which identified, or had the effect of identifying, a person who was not an employee of Toll as being an employee of Toll (“the photograph”) (“Charge 3”).
In relation to both charges, I found that the impugned video and photograph were not removed until on or around 19 December 2017.[3]
Imposition of Penalty
[3] Toll Transport Pty Ltd & Ors v Erikson(No.2) [2018] FCCA 308 at [54], [61].
Principles Governing Sentencing for Contempt
In Kazal v Thunder Studios Inc (California) [2017] FCAFC 111 (“Kazal”), having considered the authorities on sentencing principles, the Full Court of the Federal Court said as follows (Kazal at [101]-[103]):
101. In Matthews at [129], Tobias JA (with whom Basten and Campbell JJA agreed on this point) quoted with evident approval nine considerations the sentencing judge in that case had considered relevant to the question of determining an appropriate punishment for contempt of court as follows:
(1) the seriousness of the contempt proved;
(2) the contemnor’s culpability;
(3) the reason or motive for the contempt;
(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 deterrence of the contemnor and others of like mind from similar disobedience; and
(9) the need for denunciation of contemptuous conduct.
102. That is a useful list of considerations that may properly be seen to have a part to play in a given case, although not exhaustive. Although (8) is directly concerned with deterrence, all of the other factors are also relevant to differing degrees in ascertaining the need for deterrence. A number of decisions of this Court on the approach to penalties for contempt, helpfully summarised by Tracey J in Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) [2017] FCA 522 at [140]-[143], refer to a number of the matters of the kind that appear in the Matthews list in more detail and somewhat more besides.
103. The burden of the additional authority in this Court is to add weight to the factors listed in Matthews, rather than requiring any change by way of addition, subtraction or variation. The focus remains on the core themes of the objective seriousness of the conduct and, in particular, its effect on the administration of justice, subjective factors such as the contemnor’s culpability, antecedents and attitude, including in particular any apology or other palpable sign of contrition, the capacity to pay a fine, and imprisonment being a last resort. Deterrence remains a dominant theme, both specific and general. Even denunciation and punishment can be seen as bolstering deterrence. That is especially so when the conduct entails contemplation and the opportunity to reflect and desist.
The Full Court of the Federal Court in Kazal relevantly said the following about a contemnor’s state of mind (Kazal at [105]-[106]):
105. State of mind can serve to mitigate or aggravate conduct by a contemnor. In the case of aggravation, this is reflected in the conclusion reached as to whether or not the nature of the contempt, combined with the proven state of mind, may be regarded as contumacious. Evidence of an innocent or inadvertent state of mind may serve to mitigate. It follows that state of mind will almost always be a relevant consideration when it comes to penalty, somewhat analogous to the situation with civil penalty contraventions: cf Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at 54 [123]-[124].
106. Aggravation by way of conduct and a state of mind found to be contumacious can be seen to be on a sliding scale. For example, it may range from deliberate and wilful defiance, to an unsuccessful attempt to get around a prohibition, to an unsuccessful attempt to comply with a prohibition. Proven recklessness or carelessness may be seen not to be contumacious at all. This process of characterisation is inevitably driven by close attention to what was done. This includes what can be said about state of mind able to be ascertained from all of the evidence, including by way of inference.
In AGL Energy Limited v Hardy (No.2) [2017] FCA 863 (“AGL Energy”), O’Callaghan J, having referred to Kazal, also referred to the following authorities (AGL Energy at [27]-[28]):
27. In Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494, Merkel J set out (at [25]) a number of factors accepted by the parties in that case, as they were in this case, to be relevant to the question of the appropriate penalty:
It was common ground between the parties that the following factors…are relevant to penalty.
1.5 In deciding the appropriate penalty, a court should consider the following factors:
(1) contemnor’s personal circumstances;
(2) nature and circumstances of the contempt;
(3) effect of the contempt on the administration of justice;
(4) contemnor’s culpability;
(5) need to deter the contemnor and others from repeating contempt; and
(6) absence or presence of a prior conviction for contempt. However, other criminal history is irrelevant.
1.6 In deciding the amount of any fine the Court should take into account the contemnor’s financial means. The court may also suspend the fine on terms.
Contrition and apology
1.7 Genuine contrition and a full and ample apology may also reduce the penalty.
…
(Citations omitted.)
28. In Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2003) 133 FCR 279, Spender J summarised the relevant considerations as follows (at [16]):
Considerations which are relevant in deciding what is the appropriate penalty include:
(a) The relative seriousness of the contempt, which is determined by the extent to which the contemnor appreciated that a contempt was being committed.
(b) Whether the contemnor subjectively intended to disobey the order.
(c) The importance of bringing home to the contemnor the seriousness of the contempt.
(d) Whether the contemnor has offered any explanation or apology for his conduct.
(e) An acknowledgment by the contemnor that a contempt was committed may be a mitigating factor.
(Citations omitted.)
(See also Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259; 52 ACSR 115 at 123 [29] per Palmer J; Sydney Medical Service Co-operative Limited v Lakemba Medical Services Pty Ltd (No 2) [2016] FCA 1188 at [15] per Flick J; Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) [2016] FCA 1437 at [40]–[42] per Moshinsky J; Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202 at [8]–[11] per Rares J; and Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) [2017] FCA 522 per Tracey J.)
Submissions
In its Outline of Submissions filed on 22 February 2018, Toll “…highlights the following features of the Respondent’s conduct and circumstances”:[4]
[4] Applicants’ Outline of Submissions filed on 22 February 2018 at [13]-[19].
14. First, the Respondent’s explanation for his contempts was unsatisfactory, to say the least. Merely “forgetting” about the existence of certain social media posts – in circumstances where court orders expressly addressed them – demonstrates scant regard for the processes and authority of the Court.
15. Secondly, the Respondent’s conduct during the hearing of the contempt charges left much to be desired. In the witness box he was argumentative, and showed little (if any) contrition. At no point has he squarely apologised for his conduct. Ultimately, the Court concluded that “when it suits him, the Respondent has a tenuous relationship with the truth”.[5]
[5] Toll Transport Pty Ltd & Ors v Erikson (No.2) [2018] FCCA 308 at [26].
16. Thirdly, since the Court handed down its reasons for its findings on the charges, the Respondent has continued to make disrespectful public comment. The Respondent relies on the affidavit of Anthony Andrew Keir Wood dated 22 February 2018 (Wood Affidavit), which sets out these comments. On or around 15 February 2018, the Respondent posted on Facebook and said:[6]
[6] See Affidavit of Anthony Andrew Keir Wood filed on 22 February 2018 at [4].
“You know you're a Patriot when you have journalists blowing up your phone to inform you that you missed court.
Next month I will most likely be given a prison sentence, all good!! 5 reasons why I will be requesting a prison sentence.
I am over due for a holiday.
I have had a toothache and will get free dental inside.
I can recruit more members to Cooks Convicts from prison.
I will have better access to a legal defence.
It will give me street cred. Yes!!!”
17. Then, on or around 19 February 2018, the Respondent posted on his Facebook page a link to a video at the “Cooks Convicts” website. The video was of the Respondent commenting on the present proceedings, and included the following:[7]
[at 00.27] Now I’ve already been found guilty on two charges, two charges of contempt. So I’m looking at maybe about 30, maybe 60 days in prison on March 13 because I’ve got no money to pay a fine so I’m probably going to prison.
[at 3:04 ]So, yeah, so basically I’ve been found guilty of contempt of hosting a photo and a video that is everywhere. You could throw a rock and you’ll hit a video or picture of what I’ve had on my Twitter and You Tube.
[at 4:36]… I’m just saying this is getting a bit ridiculous, it’s getting very ridiculous. It’s petty, it is pathetic and I think people have had enough, I think people have really had enough.
18. The video referred to in paragraph 17, above, has been copied by other websites seeking to make disparaging comments about the Applicants, including its foreign ownership.
19. By this conduct, the Respondent is showing a serious absence of insight into his conduct, the nature of these proceedings, and the importance of the court protecting its own authority.
(Footnotes and emphasis in original)
[7] Ibid at [5].
Mr Erikson made the following submissions to the Court at the Penalty Hearing:
a)
his failure to comply with the orders of the Court dated
7 December 2017 was not intentional;
b)he had forgotten that the video had remained on his YouTube site. He has many social media sites and had made a lot of effort to remove the videos from those social media sites;
c)leaving the photograph on his Twitter account was an accidental oversight as he does not use that platform regularly; and
d)he is an unemployed forklift driver and does not own any assets save for a car, which is not valuable enough to be seized.
In relation to Mr Erikson’s claim that he was unemployed, Counsel for Toll took the Court to Annexure AW2 to the affidavit of Anthony Andrew Keir Wood filed on 22 February 2018, which contains a copy of the transcript of a video dated 19 February 2018 (extracted in part in Toll’s Outline of Submissions[8]; see [14] above). Counsel for Toll pointed out that at the end of the video, Mr Erikson stated “Now, 9 o’clock, I’ve got to go to work but I might get a break later, but 9 o’clock, am…”[9]
[8] Applicants’ Outline of Submissions filed on 22 February 2018 at [17].
[9] Affidavit of Anthony Andrew Keir Wood filed on 22 February 2018, Annexure AW2 at 8.
Having explained to Mr Erikson in earlier proceedings the difference in the weight the Court will give to submissions made from the bar table and sworn evidence, I invited Mr Erikson to give sworn evidence in relation to his personal and financial circumstances. Mr Erikson declined this invitation.
Consideration
I am satisfied that the contempt proved in this case was serious.
Seriousness of Contempt and Contemnor’s Culpability
In relation to the proved Charge 2, I am satisfied that Mr Erikson understood that he was required to remove from the Patriotic Blue Facebook page the video he had filmed of his interaction with Senator Sam Dastyari in early November 2017 (“the Dastyari video”). At the contempt hearing on 15 January 2018 (“the Contempt Hearing”), Mr Erikson gave evidence that he had removed the Dastyari video from the Patriotic Blue Facebook page as soon as he received the endorsed Court orders on 13 December 2017.[10] Mr Erikson’s evidence was that he had posted the Dastyari video on two social media sites – the Patriotic Blue Facebook page and Mr Erikson’s own YouTube page. On 14 December 2017, Toll’s solicitors sent email correspondence to Mr Erikson informing him that his Twitter and YouTube pages remained active.[11] In the Contempt Decision, I rejected Mr Erikson’s evidence that he had forgotten about his YouTube page. I said the following:[12]
52. I agree with the Applicants’ submission that the Respondent’s evidence that he failed to scrutinise his YouTube pages because he has hundreds of images and videos on various social media sites, is unconvincing. The Respondent’s evidence is that he posted the relevant video footage on only two social media sites; the Patriot Blue Facebook page, and his own YouTube page. Given the notoriety of the particular incident in the general media, I do not accept that the Respondent had forgotten about his YouTube page, or forgotten that he had posted the video footage on his YouTube page.
[10] It is to be noted that the orders made by the Court on 7 December 2017 did not include the endorsement required by r.29.07 of the FCC Rules. Orders were made on 13 December 2017 with the endorsement in accordance with r.29.07 of the FCC Rules. Accordingly, in the Contempt Decision, I only considered whether the contempt was proved on and from 13 December 2017.
[11] Toll Transport Pty Ltd & Ors v Erikson(No.2) [2018] FCCA 308 at [41].
[12] Ibid at [52].
I found that Mr Erikson had removed the video from his YouTube page on or around 19 December 2017.[13]
[13] Ibid at [54].
In these circumstances, I am satisfied that Mr Erikson’s contempt of Order 7(a) of the orders of the Court dated 7 December 2017 was deliberate.
In relation to the proved Charge 3, I am satisfied that Mr Erikson understood that he was required to remove from all of his social media sites any video or photograph which identified, or had the effect of identifying, a person who was not an employee of Toll as being an employee of Toll.
At the Contempt Hearing, Mr Erikson gave evidence that he had hundreds of images and videos on various social media sites, that he did not use his Twitter account often, and that he had totally forgotten that he even had a Twitter account. The veracity of this evidence was put at issue by the fact that Toll produced evidence that Mr Erikson had posted images on his Twitter account on 27 November 2017.[14] In the Contempt Decision, I found Mr Erikson’s evidence that he had forgotten that he had a Twitter account implausible.[15] I further found that Mr Erikson removed the images from his Twitter page on or around 19 December 2017.[16]
[14] Ibid at [58].
[15] Ibid at [60].
[16] Ibid at [61].
In these circumstances, I am satisfied that Mr Erikson’s contempt of Order 7(b) of the orders of the Court dated 7 December 2017 was deliberate.
Contrition or Remorse
Mr Erikson has not provided any expression of genuine contrition. In fact, having observed Mr Erikson’s conduct over a number of proceedings, I have formed the view that he is indifferent to the seriousness of his contempt. The evidence that Mr Erikson has given in these proceedings has been inconsistent, implausible and lacks credibility. I observed in the Contempt Decision that it was likely that when it suits him, Mr Erikson has a tenuous relationship with the truth.[17]
[17] Ibid at [26].
Benefit or Gain from Contempt
There is no evidence before the Court that Mr Erikson has derived a financial benefit or gain from his contempt. However, I have formed the view that Mr Erikson seeks out and enjoys media attention and, in his efforts to be the centre of attention, displays a cavalier attitude to the administration of justice. The following behaviours exemplify Mr Erikson’s cavalier attitude:
a)on 8 December 2017, Mr Erikson shared on his Facebook page a 9News article which referred to the making of the Orders on 7 December 2017 and posted the comment “LMFAO”. Mr Erikson gave evidence at the Contempt Hearing that this stood for the phrase “laughing my fucking ass off”;[18]
b)Mr Erikson’s commentary about incarceration on his Facebook page on or around 17 February 2018 (see [14] above) is not only pugnacious and involves an engagement in fantasy about the nature of incarceration, but it also reveals a contemptuous attitude to the serious nature of a penalty the Court may decide to impose in relation to contempt; and
c)at the Penalty Hearing held to consider whether Mr Erikson should be punished for contempt, Mr Erikson attended in person wearing a Hi-Vis vest with a Toll logo. In between the letters “T” and “O” on the logo, Mr Erikson had used a marker pen to insert the letter “R”, which I assume suggested the word “TROLL”. In my opinion, this behaviour was both childish and attention-seeking. Furthermore, attending a Court hearing wearing this apparel, given the nature of Mr Erikson’s conduct the subject of these proceedings, without doubt reflected a cavalier attitude to the administration of justice.
[18] Ibid at [10].
Contemnor’s Personal Circumstances
The Court has no evidence before it about Mr Erikson’s personal circumstances. Mr Erikson’s submission to the Court that he is an unemployed forklift driver conflicts with a statement he posted on his Facebook page only recently (see [16] above). Mr Erikson declined, as was his right, to give sworn evidence about his personal circumstances at the Penalty Hearing. However, given my earlier findings in the Contempt Decision regarding the evidence Mr Erikson gave at the Contempt Hearing, I am unable to be satisfied that he is either unemployed or without any assets.
Penalty
Having considered all of the circumstances of the proved charges of contempt, I have decided that an appropriate penalty is a fine in the amount of $5,000 for each charge proved, such fines to be suspended for a period of two years, provided Mr Erikson complies with each and every component part of Order 7 of the orders made on 7 December 2017. At the end of the two-year period (or an earlier period determined by further order of the Court) and provided Mr Erikson has complied with each and every component part of Order 7 of the orders made on 7 December 2017, the orders made this day that pertain to payment of the fines will be discharged.
In my opinion, this penalty sufficiently expresses the Court’s disapproval of Mr Erikson’s contempt and takes into account the need to deter Mr Erikson and others from engaging in contempt of the Court’s orders.
Costs
As two charges of contempt have been proved against Mr Erikson, the question of the costs he will be required to pay Toll arises.
During the Penalty Hearing, I raised with the parties the question of whether, by operation of s.79(1) of the FCCA Act, the costs limitation in s.570 of the Fair Work Act 2009 (Cth) (“the FW Act”) applies to or affects the exercise of the Court’s discretion regarding costs in contempt proceedings. This is because the substantive proceedings in this case were brought under the FW Act, with two further common law causes of action brought under the Court’s accrued jurisdiction.
Orders were made on 13 March 2018 for the parties to file and serve written submissions on the above question. Toll filed written submissions on 16 March 2018. No written submissions were filed by Mr Erikson.
Section 79(1) of the FCCA Act provides as follows:
79 Costs
(1) This section does not apply to family law or child support proceedings or proceedings in relation to a matter arising under the Fair Work Act 2009 or section 14, 15 or 16 of the Public Interest Disclosure Act 2013.
Note: See section 117 of the Family Law Act 1975 in relation to family law or child support proceedings. See section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act. See section 18 of the Public Interest Disclosure Act 2013 for proceedings in relation to matters arising under section 14, 15 or 16 of that Act.
Section 570 of the FW Act provides as follows:
570 Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.
In my opinion, contempt proceedings are a species of proceedings separate and distinct from other proceedings of the Court brought under the Court’s original jurisdiction (s.10 of the FCCA Act). This is supported by the scheme of the FCCA Act and, in particular, s.17(1) of the FCCA Act, which deals specifically with the Court’s power to punish for contempt.
I agree with Toll’s submission that its contempt application was not a proceeding “in relation to a matter arising under” the FW Act and that, accordingly, the Court’s discretion is not constrained by the operation of s.570 of the FW Act.
Respectfully, I accept that I am bound by the decision of Mansfield J in Director of the Fair Work Building Industry Inspectorate v Cartledge (No.2) [2015] FCA 851 (“Cartledge”). In Cartledge, the Applicant had obtained injunctive orders under the FW Act against certain union officials to prevent them from entering a work site. The Second Respondent had breached that injunction. The Applicant brought an application for punishment for contempt against the Second Respondent and also sought that the Second Respondent pay the Applicant’s costs of the contempt application. Justice Mansfield made a costs order against the Second Respondent. In doing so, his Honour held that the contempt application was not a proceeding under the FW Act and thus s.570 had no application. Relevantly, his Honour held that the contempt application (Cartledge at [32]):
32. …invokes the jurisdiction of the Court under Pt III of the Federal Court of Australia Act 1976 (Cth) to enforce an order of the Court. It does not enliven or assert a claim in relation to a matter arising under the FW Act. Rather, it is to vindicate the authority of the Court and the public interest in the due administration of justice: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 112‑113. It is not a claim under or related to a claim under the FW Act, so as to fall within the “matter” which is the principal claim: cf Stanley v Service to Youth Council Inc (No 3) (2014) 225 FCR 357 at [28] (Stanley).
Indemnity or Party-Party Costs?
Toll seeks an order that Mr Erikson pay its costs on an indemnity basis. Mr Erikson’s submissions to the Court are effectively that he is impecunious and unable to pay any fine or costs incurred by Toll.
In Kazal, the Full Court of the Federal Court relevantly said as follows (Kazal at [192]-[195]):
192. A common consequence of success by a person bringing contempt proceedings is an indemnity costs order. Katzmann J in Kazal v Thunder Studios Inc (California) [2017] FCA 238 at [90] helpfully referred to Connect TV Pty Ltd v All Rounder Investments Pty Ltd (No 4) [2013] FCA 393 at [43] per Tracey J, and Infa-Secure Pty Ltd v Crocker (No 2) [2016] FCA 202; 338 ALR 586 at 600 [44] per Reeves J. Her Honour observed that in Victoria and in Queensland it seems to be the “common or usual practice” to award indemnity costs in contempt cases, referring to Deputy Commissioner of Taxation v Gashi (No 3) [2011] VSC 448; 85 ATR 262 at 270-1 [20] per Dixon J and the abovementioned case of Infa-Secure.
193. Katzmann J also pointed out that in National Australia Bank Ltd v Juric (No 2) [2001] VSC 398 at [70] Gillard J explained:
[I]t has been recognised for many, many years in contempt cases, that a litigant who must come to court in order to enforce an order which has been breached by contempt, or to have a person dealt with [for] contempt, should not be out of pocket.
194. Katzmann J pointed out that Moore J took a different view in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; 196 ALR 350 at [6], based on a number of cases in this Court. Moore J observed (emphasis added by Katzmann J):
There has been limited judicial consideration of what principles (if any) govern the ordering of indemnity costs in contempt cases. It is at least clear, following McIntyre v Perkes (1988) 15 NSWLR 417 (see Samuels JA at 424–8 and Rodgers AJA at 434–6) (which involved a comprehensive review of the authorities including some suggesting the existence of a rule), that there is no general principle or rule of law in contempt cases that a successful applicant or successful prosecutor is routinely awarded costs on an indemnity basis: see also to the same effect in this court, Adlam v Noack [1999] FCA 1606; BC9907694 per Mansfield J at [29], LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1213; BC9905513 per Lindgren J at [64]–[65]. Indeed as is the conventional practice in most cases, costs are routinely awarded in contempt cases on a party and party basis. In McIntyre v Perkes (1988) 15 NSWLR 417 Samuels JA (at 424 and 428) relevantly said:
The respondent, however, submitted that the judge had erred in failing to apply “the normal rule which in cases where an intentional contempt of Court is proved on an application by a private prosecutor is for costs to be ordered on a basis calculated substantially to indemnify the prosecutor”. …
In my opinion this survey, no doubt not exhaustive but reasonably extensive, of the textbooks and cases does not reveal any rule of law or any established practice binding upon the judge in this case and requiring him to make one of the orders for which the respondent contended.
195. There is no doubt that this Court has a discretion to award indemnity costs to a party bringing contempt proceedings. In many contempt cases there will be powerful discretionary considerations favouring the award of indemnity costs. If there is a variable practice in that regard, this is a case falling within the category for which an indemnity costs order would be entirely appropriate. No express reason was advanced in this case for departing from the at least common approach of awarding costs on an indemnity basis. That may be because the appellant is an undischarged bankrupt, rendering any enforcement of a costs order nugatory.
(Emphasis in original)
In McIntyre v Perkes & Anor (1988) 15 NSWLR 417 (“McIntyre”), Samuels JA, having stated that there was no rule that indemnity costs be awarded in contempt cases, said as follows (McIntyre at 426-427):
…unless it be on occasions where no penalty by fine or by any other means is imposed. In those cases it is certainly arguable that from time to time courts have made an order for costs on the solicitor and client basis on the footing that this order, which provides an indemnity or near indemnity to the successful moving party, represents sufficient recognition of the court's disapproval of the contempt established…
Toll submits that indemnity costs should be awarded in this case for the following reasons:
a)it had no option but to bring contempt proceedings because of Mr Erikson’s non-responsiveness to the requests made by both Toll management and Toll’s solicitors for Mr Erikson to cease his disobedience of the Court’s orders;
b)the underlying conduct which was designed to cause harm to Toll; and
c)Mr Erikson’s overall conduct in the proceedings, including his evasiveness and lack of credible evidence.
Toll, noting the observations in McIntyre that in the absence of any penalty a heavy order for costs may be used as a means of imposing a sanction, submits that to the extent the Court is minded not to impose any penalty, or any significant penalty, an indemnity costs order should be made.
Having regard to the circumstances of this case, I have decided that the costs incurred by Toll in bringing the contempt proceedings should be paid by Mr Erikson on a party-party basis. I am mindful of my findings that Mr Erikson’s contempt was deliberate and that he displays an indifferent attitude to the administration of justice. However, I have imposed a fine in the total amount of $10,000. Under my orders, this fine will be suspended and discharged after a two-year period, provided Mr Erikson complies with Order 7 of the orders of the Court made on
7 December 2017.
The requirement that Mr Erikson, in effect, be of good behaviour for a period of two years is, in my opinion, a sufficient indication from the Court of its disapproval of Mr Erikson’s conduct.
In my opinion, the orders I have framed for the payment of the fines, combined with an order that Mr Erikson pay Toll’s costs incurred in the contempt proceedings on a party-party basis to be taxed, is an appropriate sanction from the Court for the proved charges of contempt.
So that there is no doubt in the calculation of costs, the costs incurred by Toll in the contempt proceedings arise from its Application in a Case filed on 19 December 2017, including any affidavit(s) filed in support of the Application in a Case, the subsequent proceedings held on 15 January 2018 and 13 March 2018, including any affidavit(s) filed for the purpose of those proceedings, and the preparation of written submissions in accordance with the orders of the Court made on
13 March 2018.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 11 May 2018
Appendix A – Orders of 7 December 2017
THE COURT ORDERS THAT:
The proceedings are adjourned for directions on 18 December 2017 at 9.30am.
Leave be granted to the Applicants to file the affidavit of Anthony Andrew Keir Wood affirmed on 7 December 2017.
Pursuant to r.6.14 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), leave is granted to the Applicants to serve the Respondent the Applicant’s Application, Statement of Claim, Genuine Steps Statement and Affidavit of Anthony Joseph Abraham filed on 6 December 2017 by email to the following two email addresses: [omitted].
Pursuant to r.1.06 of the FCC Rules, r.6.19 is dispensed with.
Pursuant to s.545(2)(a) of the Fair Work Act 2009 (Cth), the Respondent return to the Applicants at the offices of its lawyers located at level 43, 101 Collins Street Melbourne in the State of Victoria, uniforms of the Applicants’ and all other property of the Applicants’ within the Respondent’s possession or control, including but not limited to:
(a)1 claret coloured flinders boot;
(b)3 orange/green coloured polo tops with Toll branding;
(c)2 orange/green coloured shirts with Toll branding;
(d)1 orange/green coloured fleece tops with Toll branding;
(e)3 grey coloured drill cargo with Toll branding;
(f)1 grey coloured cap with Toll branding;
(g)1 grey coloured beanie with Toll branding;
(h)1 grey coloured wide-brim hat with Toll branding;
(i)1 orange/green coloured high visibility jacket with Toll branding;
(j)1 grey coloured drill cargo with Toll branding; and
(k)1 black coloured men’s belt with Toll branding.
Order 5 herein shall be complied with by no later than 14 December 2017.
Until the final determination of these proceedings and upon the usual undertakings as to damages given by the Applicants, the Respondent by himself, his employees, servants or agents be and are hereby restrained from:
(a)publishing on any media, electronic or otherwise, copies of videos listed in Schedule A to this Order;
(b)publishing any video or photograph on any media, electronic or otherwise, which identifies or has the effect of identifying any person who is not an employee of any of the Applicants, as an employee of any of the Applicants, whether by way of a uniform, or branding, or other livery of any of the Applicants or by direct statements that he or she is an employee of any of the Applicants; and
(c)publishing any video or statement on any media, electronic or otherwise, which refers to, directly or indirectly, the termination of his employment or the termination of another employee’s employment by any of the Applicants.
The Applicants forthwith serve on the Respondent a copy of today’s Order by email to the following email addresses: [omitted].
Any further documents are to be served on the Respondent by email to the following two email addresses: [omitted].
AND THE COURT NOTES THE FOLLOWING ENDORSEMENT:
A.The Respondent will be liable to imprisonment, sequestration of property and punishment for contempt if:
(a)the Respondent fails to comply with Orders 5 and 6 herein, or neglects or refuses to comply with Orders 5 and 6 herein; or
(b)the Respondent fails to comply with Order 7 or disobeys Order 7.
Schedule A
A video posted on the Respondent’s Facebook page on or about 21 May 2015 in which he appeared in Toll Uniform.
A video posted on the Respondent’s Facebook page on or about 26 June 2015 in which he appeared in Toll Uniform, and expressed the view that Muslims in France were “beheading people” that accordingly France was in “lock down”.
A video posted on the Facebook page of the “United Patriots Front” on or about February 2016, in which he appeared in Toll Uniform, and criticised Toll, asserting that it had terminated his employment without justification.
A video posted on his Facebook page on or about 29 May 2017 in which the Respondent appeared in Toll uniform, played the voice recording of an officer of the Second Applicant terminating his employment, said that his employment was terminated in circumstances where he had not breached any term of the second employment agreement, said that Toll was persecuting him, and called for a boycott of Toll.
A video posted on the Respondent’s Facebook page, and on the “Vote No Australia” Facebook page on or about 19 August 2017 in which the Respondent appeared in Toll uniform, and made a series of statements opposing the legalisation of same sex marriage.
Footage that the Respondent had filmed of Senator Sam Dastyari and posted on the Facebook page of an organization called “Patriotic Blue” on or about 3 November 2017.
A video posted on the Respondent’s Facebook page on or about 18 November 2017, in which he asserted that Toll terminated Mr Scott Moerland’s employment without justification, asserted that Toll is a racist workplace that treats Indian people “like second class citizens” and asserted that Toll provided “a toilet for the white workers and a toilet for the brown workers.”
(Emphasis in original, the Respondent’s email addresses omitted)
0
27
5