Australian Securities and Investments Commission v One Tech Media Limited (No 3) [2018] FCA 1071

Australian Securities and Investments Commission v One Tech Media Limited (No 3) [2018] FCA 1071

The liability of solicitors (Kalus Kenny Intelex) for civil contempt for causing or procuring a breach of court orders, where they are not parties and not bound by order, is not strict. The additional element of knowledge/intent must be proved beyond reasonable doubt. On the facts, intention was not established, so the charges of contempt against the solicitors are dismissed. Declarations of contempt, as agreed, are made against certain defendants on admitted facts. All other charges are dismissed by consent.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: One Tech Media Limited; Second Defendant: Ultra Solutions MG (UK) Limited; Third Defendant: Allianz Metro Pty Ltd (ACN 610 042 843); Fourth Defendant: Eustace Senese; Fifth Defendant: Sansen Pty Ltd (ACN 111 816 178); Sixth Defendant: Transcomm Global Pty Ltd (ACN 169 503 762); Seventh Defendant: Sandra Senese; Eighth Defendant: Bianco Pty Ltd (ACN 604 778 305); Ninth Defendant: Cameron David Senese; Tenth Defendant: IMC Holdings Pty Ltd (ACN 138 145 291); Eleventh Defendant: Yoav Ida; Twelfth Defendant: Westpac Banking Corporation (ABN 33 007 457 141); Thirteenth Defendant: National Australia Bank Limited (ABN 12 004 044 937); Fourteenth Defendant: Bendigo and Adelaide Bank Limited (ABN 11 068 049 178); Fifteenth Defendant: Commonwealth Bank of Australia (ABN 48 123 123 124); Sixteenth Defendant: Citigroup Pty Limited (ABN 88 004 325 080); Alleged Contemnor: Kalus Kenny Intelex Lawyers
Jurisdiction
Australia
Judgment Date
19 July 2018
Procedural Posture
Contempt of Court (civil Contempt) in Corporations Regulatory Proceeding / Determination of Liability for Contempt, With Penalty and Costs to Be Fixed at Later Hearing
Outcome
Declarations of contempt made against specified defendants (Eustace Senese, Transcomm Global Pty Ltd, Cameron David Senese) on agreed charges; all other contempt charges against these defendants and all charges against Allianz, Bianco, and Kalus Kenny Intelex dismissed; costs reserved; matter to be listed for...
Legal Topics
Civil Contempt, Freezing Orders, Legal Practitioner Liability, Injunctions, Carve Out Orders, Breach of Court Orders
Corporations Law Civil Procedure Legal Ethics Civil Contempt Freezing Orders Legal Practitioner Liability Injunctions Carve Out Orders +1 more

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Parties

Australian Securities and Investments Commission

Plaintiff

One Tech Media Limited

First Defendant

Ultra Solutions MG (UK) Limited

Second Defendant

Allianz Metro Pty Ltd (ACN 610 042 843)

Third Defendant

Eustace Senese

Fourth Defendant

Sansen Pty Ltd (ACN 111 816 178)

Fifth Defendant

Transcomm Global Pty Ltd (ACN 169 503 762)

Sixth Defendant

Sandra Senese

Seventh Defendant

Bianco Pty Ltd (ACN 604 778 305)

Eighth Defendant

Cameron David Senese

Ninth Defendant

IMC Holdings Pty Ltd (ACN 138 145 291)

Tenth Defendant

Yoav Ida

Eleventh Defendant

Westpac Banking Corporation (ABN 33 007 457 141)

Twelfth Defendant

National Australia Bank Limited (ABN 12 004 044 937)

Thirteenth Defendant

Bendigo and Adelaide Bank Limited (ABN 11 068 049 178)

Fourteenth Defendant

Commonwealth Bank of Australia (ABN 48 123 123 124)

Fifteenth Defendant

Citigroup Pty Limited (ABN 88 004 325 080)

Sixteenth Defendant

Kalus Kenny Intelex Lawyers

Alleged Contemnor

Procedural Posture

Contempt of Court (civil Contempt) in Corporations Regulatory Proceeding / Determination of Liability for Contempt, With Penalty and Costs to Be Fixed at Later Hearing

Legal Issues

  1. 1 Whether certain defendants breached freezing orders resulting in civil contempt
  2. 2 Whether solicitor not bound by orders can be liable for contempt for causing or procuring breach
  3. 3 Whether knowledge/intent is required for contempt by a non-party solicitor

Ratio Decidendi

The liability of solicitors (Kalus Kenny Intelex) for civil contempt for causing or procuring a breach of court orders, where they are not parties and not bound by order, is not strict. The additional element of knowledge/intent must be proved beyond reasonable doubt. On the facts, intention was not established, so the charges of contempt against the solicitors are dismissed. Declarations of contempt, as agreed, are made against certain defendants on admitted facts. All other charges are dismissed by consent.

Court Disposition

Declarations of contempt made against specified defendants (Eustace Senese, Transcomm Global Pty Ltd, Cameron David Senese) on agreed charges; all other contempt charges against these defendants and all charges against Allianz, Bianco, and Kalus Kenny Intelex dismissed; costs reserved; matter to be listed for...

Orders

  • The fourth defendant (Eustace Senese) declared guilty of contempt as alleged in charges A6, A15, A24, A33, A42, A51, A72, A78, A80, A82, A84, A86, A88, A90, A92, A94, A96, A98, A100, A102, A104, A106 and A108.
  • The sixth defendant (Transcomm) declared guilty of contempt as alleged in charges F2, F5, F8, F11, and F14.