Ultra Tune Australia Pty Ltd v Cole
[2021] VSC 634
•29 September 2021
| 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 identified matters of relevance to sentencing for contempt as including:[3]
[3]Witt [2016] VSC 142 [93]; Australasian Meat Industry (1986) 161 CLR 98; Deputy Commissioner of Taxation v Gashi & Anor(No 3) [2011] VSC 448 [5] (John Dixon J); DPP v Johnson [2002] VSC 583 [59] (Osborn J).
• the nature and circumstances of the contempt (including the objective seriousness of the contempt);
• the effect of the contempt on the administration of justice;
• the contemnor’s culpability as judged by his or her state of mind and intention at the time of the contempt;
• general and specific deterrence;
• the previous good character of the contemnor (including the absence or presence of a prior conviction for contempt;
• the contemnor’s personal circumstances and financial means;
• whether the contemnor has exhibited contrition and made an apology;
• denunciation of the contempt; and
• the passage of time since the occurrence of the contempt.[4]
[4]See DPP v Johnson [2002] VSC 583 [55]–[60]; R v Age Co Ltd [2008] VSC 305 [22]; Alfred v CFMEU (No 2) (2011) FCA 557 [14]; Bovis Lend Lease Pty Ltd v CFMEU (No 2) (2009) FCA 650; Grocon v CFMEU [2014] VSC 142 [77]–[78].
Under r 75.11 of the Supreme Court (General Civil Procedure Rule) Rules 2015 (Vic) penalties for contempt may consist of fines, imprisonment or both. In this case the parties agree Ms Cole should be sentenced on the basis of a civil contempt, and that any penalty imposed should be by way of a fine.
Evidence relied on by the parties
The parties relied on the following affidavits:
(a) Mr Buckley sworn 23 April and 29 July 2021;
(b) Hisham Hanna sworn 23 April and 28 July 2021;
(c) Rodney Cedaro sworn 27 April and 28 July 2021;
(d) Brett Reed sworn 28 July 2021;
(e) Tania Plumpton sworn 28 July 2021;
(f) Pieta Cedaro sworn 28 July 2021;
(g) Nicolas Tatsis sworn 28 July 2021;
(h) Ms Cole affirmed 18 June 2021;
(i) Boris Pogoriller affirmed 31 May 2021.
A number of these affidavits dealt with the circumstances of the relationship, which are contentious. Those affidavits are of limited relevance to the sentence to be imposed on Ms Cole for the contempt.
In addition Ms Cole relied on three written character references from Dr David Topchian dated 22 September 2021, Dr Halimah Hassan dated 22 September 2021 and Rose Cook, undated.
No oral evidence was given.
Nature and circumstances of Ms Cole’s contempt
The contempt concerns an audio recording which Ms Cole says she made in early 2020 of a conversation between her and Mr Buckley, and of Mr Buckley when he was speaking via phone to a third person, while they were together in a room at The Crown Metropol Hotel in Whiteman Street, Southbank (the ‘recording’).
On 19 February 2021 John Dixon J made the following order by consent (the ‘injunction order’):
1.The defendants, whether themselves or by agents or howsoever otherwise, be restrained, until the trial of the proceeding or further order, from disseminating, publishing, posting, emailing, broadcasting or otherwise communicating to the public or any person, other than the plaintiffs or their legal advisers, by any means whatsoever, including via the internet, any recording or copy or reproduction of a recording made by the first defendant of private conversations between her and the second plaintiff between 1 September 2019 and 18 December 2020 (including, for the avoidance of doubt, the recording referred to in paragraph 33 of the affidavit of Peter Sean Buckley sworn 1 February 2021) (‘Recording’).
The plaintiffs’ summons for contempt alleges Ms Cole breached the injunction order by forwarding a copy of the recording to Mr Hisham Hanna on 7 March 2021 and Mr Rodney Cedaro on 8 March 2021.
Ms Cole relies on an affidavit made by the solicitor for the second defendant, Boris Pogoriller, on 31 May 2021 in which he states:
A copy of the recording was sent to the Second Defendant by Jennifer Cole. The Second Defendant took the recording to Victoria Police … I am instructed and believe that the Second Defendant sent a copy of the Crown Towers Recording to Jimmy Seoud …
Mr Pogoriller states:
The Crown Towers Recording is already in the public domain and … has been published online by The Age newspaper …, the Gold Coast Bulletin …, the Herald Sun and [on another website] … The Plaintiff’s lawyers have commented publicly on the recording in the media and claimed it is not accurate and that it has been ‘cut and spliced’ … [and] ‘tampered with’.
The media reporting commenced before the injunction order was made.
Ms Cole states that she has distributed copies of the recording as follows:
(a) to Victoria Police at their request on a date she cannot recall;
(b) to Hisham Hanna on about 21 December 2020;
(c) to the second defendant on 9 January 2021;
(d) to the plaintiffs’ lawyers on 15 January 2021;
(e) to her lawyers in February 2021;
(f) via a group text message to Mr Hanna, the second defendant and three other persons on 7 March 2021; and
(g) via a group text message to Rodney Cedaro and five other persons on 8 March 2021.
It is only the last two distributions which constitute a contempt of the injunction order.
The plaintiffs’ lawyers have commented publicly on the recording in the media, claiming that it is not accurate and has been tampered with.
Ms Cole said that on 5 March 2021, after a discussion with her young daughter, she became upset about the way Mr Buckley treated her in the relationship, and was still upset about these matters late in the evening of 7 March. Ms Cole sent the first group text message at around 11:30pm that night. Ms Cole says she knew each recipient of the first group text message already had a copy of the recording. Two recipients of that message were reporters for the Gold Coast Bulletin and The Age who had previously published details of it. She said she sent the message because she was upset about how Mr Buckley had treated her in the relationship, and that despite the recording having been made public no further action had been taken by the reporters or other people she had confided in previously. Ms Cole said she was also upset because she was caught up in this proceeding largely because of the actions taken by the recipients of the first group text.
Ms Cole sent the second group text shortly after midnight on 8 March 2021. She said she believed that each recipient already had a copy of the recording. While the detail provided is insufficient to substantiate that matter as a fact, I accept Ms Cole’s belief was genuine.
Ms Cole states:
I knew that the [injunction] Order meant that I was not allowed to send the [recording] to anyone. At the time, I thought that if I just surrendered to [Mr Buckley] by breaching the Order, then [Mr Buckley] would be able to take whatever he wanted from me financially and that the proceeding would come to an end. I chose the recipients of the Hanna group message and the Cedaro group message as people who either knew, or strongly suspected, already had a copy of the [recording]. I also knew that excerpts of the [recording] were available via news media and so I thought that no real harm would come from sending those messages.
The logic of this explanation is difficult to follow. However, I do accept the circumstances of the relationship and the disputes which followed have caused Ms Cole emotional upset, and that the group text messages were sent by her while she was in a highly distressed state after having ruminated on these matters for some time.
The plaintiffs submitted first, it was unlikely that Ms Cole becoming upset on the afternoon of 5 March following the conversation with her daughter continued and so overwhelmed her over two days later and caused her conduct. Second, while Ms Cole may well be upset about an old relationship, her allegations that Mr Buckley was violent towards her are without basis, and the relationship had been at an end for some time and should not be accepted as a cause of her breaching the injunction order. Third, Ms Cole’s evidence about surrendering to Mr Buckley in order to bring the proceeding to an end is senseless and should be disbelieved. Ms Cole knew the matter would not come to an end by persisting in the very conduct sought to be restrained by the plaintiffs. Fourth, the most likely explanation for Ms Cole’s conduct was her being upset that despite her earlier distribution of the recording to reporters and others no further action had been taken by them. In other words, Ms Cole was disappointed that her initial dissemination of the recording did not cause the plaintiffs sufficient damage.
I do not accept the plaintiffs’ characterisation of Ms Cole’s evidence and the circumstances of the contempt. The relationship ended acrimoniously in late 2020. Since that time Ms Cole has faced personal and financial difficulties which I will briefly describe later in these reasons. She is opposed to Mr Buckley in two proceedings, the second being in the Family Court. For a time she was not legally represented in this proceeding. I accept Ms Cole suffers significant ongoing emotional upset as a result of these circumstances, and that the level of her emotional upset became more prominent after a discussion with her daughter on Friday 5 March this year, remained at that heightened level over the next two days, and came to a head late on the Sunday night. I conclude that in those circumstances Ms Cole acted irrationally by sending the two groups texts, which she believed might somehow help her escape the ongoing stress and anxiety of being involved as a party to this proceeding. It is not in dispute that when she sent the group text Ms Cole knew or believed each recipient already had a copy of the recording, and that she was aware it was already in the public domain having been the subject of reporting by major media outlets.
Effect on the administration of justice
I am not satisfied Ms Cole’s actions in sending the two group text messages has had any practical effect on the conduct or outcome of the proceeding.
Ms Cole’s culpability
Ms Cole has acknowledged that she was aware that the injunction order meant she was not allowed to send the recording to anyone when she sent the group texts. However, I accept that, because she was aware the recording had been in the public domain for some time and knew or believed each recipient already had a copy of the recording, she thought no real harm would come from sending the text messages. It is likely Ms Cole’s intentional acts were borne out of the intensity of her ruminations about the relationship and its aftermath which came to a head late on the night of 7 March 2021.
Deterrence
Ms Cole has offered to pay the plaintiffs’ indemnity costs of this application, and will be obliged to pay her own legal costs. Accordingly, she will be liable for significant costs as a result of her conduct. Further, the requirement to appear to answer this charge and to purge her contempt is likely to have provided a powerful lesson for Ms Cole for the future. No doubt she is aware it is likely there would be more serious repercussions if she were to breach the injunction order again. She has expressed remorse, and promised not to further breach the order. I am confident Ms Cole will not repeat this conduct.
It is important that parties to a proceeding obey court orders, particularly those designed to preserve the subject matter of a proceeding. The group text messages were sent by Ms Cole at a time of heightened vulnerability, stress and emotional turmoil in her life. I conclude the need for general deterrence is not significant in sentencing Ms Cole given the context and circumstances of the contempt.
Good character of the contemnor
There is no evidence of any prior non-compliance with court orders by Ms Cole.
I have received and read the character references from Dr Topchian, Dr Hassan and Ms Cook. Those references describe Ms Cole’s good character, her responsibility as a mother, diligent work ethic, honesty and general caring and loving nature.
Personal circumstances and financial means
Ms Cole has limited financial means. She has the full-time care of her daughter, and is only able to work on a part-time casual basis earning a modest income. She receives the single parent’s benefit of $778 per fortnight and a family tax benefit payment of $229 per fortnight. She pays rent of $990 per week for the apartment in which she and her daughter reside. Ms Cole has approximately $35,000 savings which she relies on to pay rent and support her daughter and pay her legal bills.
Ms Cole migrated to Australia in 2009, and it appears she is living in Melbourne without family support.
In mid-2020 Ms Cole experienced the trauma of being attacked in her home by an assailant, who I understand was subsequently charged by police. I accept Ms Cole suffers an ongoing adverse psychological response to the attack.
Denunciation of the contempt
I take into account the need for denunciation of Ms Cole’s conduct in breaching the injunction order.
Apology/contrition
The contempt application was made on 27 April 2021. Allowing for the opportunity for Ms Cole to obtain legal advice she admitted the contempt at an early stage in her affidavit affirmed 18 June 2021. Ms Cole’s admission of the charge, contrition and apology to the Court mitigates the penalty to be imposed. Ms Cole’s early admission of the charge had the benefit of saving costs and court resources.
Ms Cole has made full and frank disclosure of the actions constituting the contempt, including volunteering that the group text messages were sent to a wider number of recipients than known to the plaintiffs.
Other considerations
The injunction order was made only against the defendants in this proceeding. The plaintiffs have not sought an injunction against media outlets restraining them from publishing parts of the recording. People other than the defendants, who hold a copy of the recording are not prevented from disseminating it.
Conclusions as to penalty
I accept, given the nature and circumstances of the contempt that it is towards the lower end of the scale of seriousness.
The parties agree only a financial penalty should be considered.
Having regard to her limited financial circumstances, and her liability for costs to which I have previously referred, any fine that I impose will represent a significant penalty to Ms Cole.
I do not agree with submissions on behalf of Ms Cole that it would be appropriate to decline to impose a fine. The breach of the injunction order was intentional, and the contempt, while at the lower end of the scale of seriousness, cannot be characterised as trivial.
The appropriate penalty is a fine of $500. I will hear from Ms Cole as to the time to be allowed for payment of the fine.
I will find the contempt charge against Ms Cole proved and order that she pay the plaintiffs’ costs of and incidental to the summons for contempt dated 27 April 2021 on an indemnity basis.
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