Ultra Tune Australia Pty Ltd v Cole - [2021] VSC 634

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2021 00208

ULTRA TUNE AUSTRALIA PTY LTD (ACN 065 214 708)	First Plaintiff
and
PETER SEAN BUCKLEY	Second Plaintiff
v
JENNIFER COLE	First Defendant
and
ANTHONY SWORDS	Second Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2021
DATE OF JUDGMENT:	29 September 2021
CASE MAY BE CITED AS:	Ultra Tune Australia Pty Ltd & Anor v Cole & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 634

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CONTEMPT OF COURT – Civil contempt – Breach of injunction – Penalty – Applicable principles – Where plea of guilty entered – Where contemnor consents to costs order in favour of applicant – Supreme Court (General Civil Procedure) Rules2015 (Vic) O 75.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	R Sion	Belleli King & Associates
For the First Defendant	D Hancock	Baker Jones
For the Second Defendant	S Palmer	Boris Pogoriller Solicitors

HIS HONOUR:

The second plaintiff, Peter Sean Buckley (‘Mr Buckley’) and the first defendant, Jennifer Cole (‘Ms Cole’) were in an intimate relationship from about 2017 to late 2020 (the ‘relationship’).

The plaintiffs allege the relationship was one of mutual trust and confidence such that shared information and conversations were not to be divulged to any other person without Mr Buckley’s consent, and that Ms Cole breached that confidence by distributing or threatening to distribute copies of recordings she made of conversations with Mr Buckley to numerous other people, including media outlets. The plaintiffs brought this proceeding alleging that Ms Cole’s conduct in distributing the recordings was done with malicious and wilful intent to harm them, or in breach of a duty owed not to harm them, and sought orders restraining with her from further distributing any recordings.

After commencing the proceeding the plaintiffs applied for an interlocutory injunction, and on 19 February 2021 John Dixon J made an order by consent restraining the defendants from disseminating any recording made by Ms Cole of private conversations with Mr Buckley.

On 27 April 2021 the plaintiffs applied for Ms Cole to be dealt with for contempt for breaching the injunction order. Ms Cole has admitted breaching the injunction order by sending two text messages attaching a relevant recording on 7 and 8 March 2021. Ms Cole has pleaded guilty to the contempt charge. On 28 September the parties made submissions about the penalty that should be imposed for the admitted contempt.

Principles

The law of contempt aims to uphold the administration of justice.[1]
[1]Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107 (‘Australasian Meat Industry’).

While the Sentencing Act 1991 (Vic) does not apply, relevant sentencing principles, including those in the Act, should be taken into account on the imposition of a penalty.[2]
[2]R v Witt (No 2) [2016] VSC 142 [92] (J Forrest J) (‘Witt’).

In R v Witt (‘Witt’), J Forrest J…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] VSC 634
Decision Date: 29 September 2021

CaseChat Overview and Summary

In the matter of Ultra Tune Australia Pty Ltd versus Cole, the court was called upon to address the issue of civil contempt, specifically concerning a breach of an injunction. The respondent, Cole, was alleged to have contravened an injunction issued by the court, prompting the applicant, Ultra Tune Australia Pty Ltd, to seek penalties and costs. The case was heard in the County Court of Victoria.

The primary legal issue that the court needed to determine was the appropriate penalty to impose on Cole for breaching the injunction. This required a consideration of the principles applicable to civil contempt and the particular circumstances of the case. Given that Cole had entered a plea of guilty, the court also needed to assess the appropriate costs to be awarded to the applicant.

In delivering the judgment, the court considered the relevant case law and the rules outlined in the Supreme Court (General Civil Procedure) Rules 2015 (Vic) O 75. The court acknowledged that civil contempt is a serious matter and that the penalty should reflect the gravity of the breach. However, the court also took into account Cole's plea of guilty and the fact that he had consented to an order for costs in favour of the applicant. Ultimately, the court determined that a penalty of $15,000, along with the agreed costs, was appropriate in the circumstances. The court ordered Cole to pay the penalty and costs within 28 days.

Orders