| 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…
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- Case
- [2021] VSC 634
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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