Coonan & Denlay Pty Ltd & Anor v. Superstar Australia Pty Ltd [1981] FCA 233

CATCHWORDS

Contempt of Court ~ power of Court to fine for civil contempt - respondent's conduct contumacious © fine

imposed.

COONAN & DENLAY PTY. LIMITED and ANTHONY EUNAN BENSON v. SUPERSTAR AUSTRALIA PTY. LIMITED

G 1l2 of 1981

Coram: Sheppard J.

7 December, 1981

Sydney

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. G 112 of 1981

GENERAL DIVISION

JUDGE MAKING ORDER

DATE OF ORDER WHERE MADE

THE COURT ORDERS THAT

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BETWEEN

COONAN & DENLAY PTY. LIMITED and ANTHONY EUNAN BENSON

Applicants

SUPERSTAR AUSTRALIA PTY, LIMITED

Respondent

ORDER

SHEPPARD J. 15 December, 1981

Sydney

i. Superstar Australia Pty. Limited be adjudged guilty of

contempt of Court in not complying with the orders made

by this Court on 4 September, 1981.

2. __ The charges numbered 1, 2 and 5 to 44 inclusive set forth

in the statements of charges filed herein be found proved.

3 Superstar Australia Pty. Limited be fined the sum of

$10,000 in respect of its contempt.

4, The amount of the said fine be paid by Superstar Pty. Limited

to the Registrar of the Court on or before 15 February, 1982.

5. The respondent pay the applicants' costs of the motion dated

26 October, 1981, as between solicitor and client.

IN THE FEDERAL COURT OF AUSTRALIA } NEW SOUTH WALES DISTRICT REGISTRY No. G 112 of 1981 GENERAL DIVISION

BETWEEN

COONAN & DENLAY PTY. LIMITED and ANTHONY EUNAN BENSON

AND Applicants

SUPERSTAR AUSTRALIA PTY.LIMITEL

Respondent

CORAM: Sheppard J. 7 December, 1981

REASONS FOR JUDGMENT

By their notice of motion in this matter the applicants seek an order that the respondent be dealt with for contempt of court, The contempt is alleged to have been committed by the respondent's disobedience of orders made by the Chief Judge on 4 September last. In the proceedings before him the applicants sought an interlocutory injunction to restrain the respondent from marketing certain cricket helmets. Its causes of action were based upon breaches or threatened breaches of the Trade Practices Act 1974 and upon breaches or threatened breaches of the second applicant's copyright 1n a design said to be registered under the Designs Act 1906.

The hearing was a contested one. The Chief Judge decided

to consider the matter for a short time. On 4 September last he made the following orders:

"Upon the applicants giving to the Court the usual undertaking as to damages, pending the determination of these proceedings or further order the respondent by itself, its officers servants and agents, be restrained from:

1. Selling offering or keeping for sale, supplying or advertising any cricket helmet packaged in or sold offered or supplied or advertised in conjunction with

any box the same or substantially the same as the box which is Exhibit H; and

2. Selling offering or keeping for sale supplying or advertising: (a) any cricket helmet in the form of the helmet Exhibit J; or (o) any cricket helmet to which has been applied the design registered number 74666 or any colourable imitation thereof."

A sealed copy of the order was served at the respondent's registered office on 7 September, 1981. It bore the usual endorsement that disobedience would render the respondent liable to punishment for contempt of court. On 14 September, 1981 the respondent filed a notice of appeal against the orders. No stay of proceedings was sought or granted.

The appeal was heard on 29 October, 1981. Judgment was

reserved but before it adjourned the Court said that in due course the appeal would be dismissed as regards orders 1 and 2(a) above set out. It wished to consider what the position in relation to the remaining order should be. No formal order dismissing any part of the appeal was then made. However, the appeal was formally dismissed on

4 December last. Each of the orders thus remains in full force and effect. Each such order has been in full force and effect since it was made on 4 September last.

On 26 October, 1981, the applicants filed the notice of motion now under consideration. With their notice of motion they filed a statement of charges. On 5 November, 1981, they filed a statement of further charges. The state- ments of charge alleged 44 instances of disobedience to the Chief Judge's orders. These were alleged to have occurred between 1 October, 1981 and 5 November, 1981.

The motion first came into the list for hearing on 12 November, 1981. Counsel for the respondent sought an adjournment of the proceedings. He said that its directors were overseas. Its only executive director, Mr. Marks, had left Australia on 28 October, 1981, and was not due to return until mid December, The notice of motion had been served on him on behalf of the respondent personally on that day.

Present in court was the respondent's general manager,

Mr. Cook, who was said by the respondent's counsel not to

be able to give adequate instructions. However, the adgourn- ment was not sought primarily on the grounds that the respondent's directors were overseas, Rather the adjourn- ment was sought until after the hearing of the applicants' claim for final relief had been determined.

I should pause to say that this is not a case of the kind mentioned by Barwick C.J. in Australian Consolidated Press Limited v. Morgan (1965) 112 C.L.R. 483. No question of resolving any matter to be determined at the final hearing arises.

I decided that I would not grant an adjournment on the primary ground relied upon by the respondent. I said that the matter would proceed but that if at a later stage of the proceedings I thought 1t appropriate to grant an adjournment to enable instructions to be obtained from the absent directors, that course would be taken.

The evidence led on behalf of the applicant plainly established that each of the matters charged 1n paragraphs 5 to 18 inclusive, 27 to 32 inclusive and 39 to 44 inclusive in the statements of charge had been made out. No submission to the contrary was made by counsel for the respondent. He

did not seek any adjournment to enable him to put any material

in relation to this question before me. I formally recorded my findings in this respect but decided to adjourn the matter until 27 November last to enable counsel for the respondent to obtain further instructions.

When the hearing resumed evidence established that the charges in paragraphs 1 and 2, 19 to 26 inclusive and 33 to 38 inclusive had also been made out. No opposition to my recording formal findings to that effect was offered by counsel for the respondent. It follows that I find all charges established except those alleged in paragraphs 3 and 4 of the original statement of charge.

In substance the applicant has established that, con- trary to the terms of the Chief Judge*s orders of 4 September, 1981, more than 270 helmets have been sold to retailers. The sales were made in a period of a little over one month. The evidence also establishes that during the period in question the respondent continued to promote and market the helmets as if no restraint had been imposed upon it. in mitigation of its contempt counsel relied on an affidavit sworn by Mr. Cook on 23 November, 1981. He also relied on oral evidence given by Mr. Cook of steps taken by the

respondent to take the helmets off the market,

5.

In summary Mr. Cook's evidence is to the following effect. Following the proceedings which took place on 12 November he made urgent efforts to contact Mr. Marks, the managing director. He was able to speak to him by telephone in Taiwan on 19 November, 1981. Mr. Cook said that when he informed him of the proceedings, Mr. Marks exhibited great concern. He promised to contact Mr. Cook on 20 November, 1981, after he had obtained further legal advice, Mr, Cook continued by recounting a further dis- cussion he had had with Mr. Marks over the telephone in which Mr. Marks told him that "he believed from discussions with his legal advisers that the effect of the appeal was to cancel the original orders given in this case". Mr.Cook continued:

"He (that is Mr. Marks) also informed me that

had he not been overseas he would have terminated any sales as soon as he became aware of the effect of the present proceedings. He further asked me

to inform the Court that should the Court not be satisfied with any or ail of this Affidavit and the company's efforts to withdraw the helmets he would be willing to cut short his business trip and return within seven days subject only to available trans- port and answer the charges personally."

Mr. Cook also said:

"At all times it was our understanding of our legal advice that the effect of the appeal lodged in respect of the original proceedings cancelled the effect of the orders made in those proceedings. In my discussion with Mr. Marks, he confirmed that at no stage was he advised that we may be deliberately disobeying any orders of the Court and that this was certainly not his nor the company's intention. I understand that the text of a letter to all retailers

"on or after the 2nd October, 1981 was approved

by our advisors to assure our retailers of our intention of holding them harmless, such was our belief that the original orders had been cancelled."

The communication to which Mr. Cook refers is an indemnity apparently given to number of retailers. That in evidence was given to a firm, Just Sport of 141 Osborne Street, South Yarra, Victoria. The indemnity said:

"In consideration of you purchasing cricket helmets from us branded SUPERSTAR or DUNCAN FEARNLEY and Stumps device, we undertake to defend any action against you by Coonan & Denlay Pty. Ltd. (the first applicant) so long as you promptly notify us of any step taken against you and that we have the right to nominate our legal representatives who shall have the care, conduct and control of such legal pro- ceedings.

We further agree to hold you harmless against any costs, damages, loss of profits or penalities which might arise out of such proceedings.

Provided only that any such step is taken against you by Coonan & Denlay Pty. Ltd. we also agree to accept the return for full credit of such SUPERSTAR or DUNCAN FEARNLEY branded cricket helmets."

Mr. Cook in his affidavit continued:

"According to the records of my company Mr. Marks left Australia on lst November, 1981, (not 28 October, 1981, as I was informed by counsel on 12 November,1981). This departure had been planned some six months ago and for about three weeks prior to his departure he worked constantly on details of this proposed overseas buying trip which is of vital importance to this company.

On 12 November, 1981 (the day of the first hearing of the contempt motion) immediate steps were taken to withdraw from sale all of the cricket helmets affected by these proceedings."

There is annexed to Mr. Cook's affidavit a memorandum which he said had been sent to all staff members who, he

said, immediately commenced contacting customers to implement

this direction. He said the text of the memorandum

was dictated by him over the telephone prior to leaving the Court on 12 November, 1981, and that distribution

had taken place "virtually immediately". The memorandum was addressed to all personnel. It was said to be from Mr. Cook; its subject was cricket helmets. The substance

of it was as follows:

"Please do not sell, offer for sale or deliver orders already taken on our Part Nos. DF31 or C100 cricket helmets.

Notify all customers concerned that we are unable at this time to comment further due to continuing legal proceedings.

We request that all known customers carrying stock refrain from selling until further notice and that we Shall accept back F.1I.S. (free in store) (our carriers) any stock which they should like to return.

We further undertake to hold harmless from any legal action arising directly from the sale of : SUPERSTAR or DUNCAN FEARNLEY Helmets, any customers who have purchased these items in good faith.

Your instant total acceptance of the above instruc- tions is absolutely imperative."

Mr. Cook also wrote to a Mr. Elliget, the editor of a trade magazine, The Retailer, requesting the insertion of a notice advising of the inability of the respondent to supply the helmets and seeking their recall. He said that the magazine was the most efficient communication within the trade of which he knew. It is not necessary to set out the text of the proposed advertisement, As at 23 November last it had

not been published.

Mr. Cook gave oral evidence of further steps which had been taken to overcome the effect of the disobedience of the Chief Judge's orders. There is in evidence a further memorandum to staff and agents about the matter, It is dated 25 November, 1981. According to Mr. Cook as much as at that stage could possibly be done to overcome the problem was done.

On 25 November, 1981, the respondent received a letter dated 23 November, 1981, from a firm of solicitors in Melbourne. They said that they were the solicitors for Just Sport Pty. Limited, which had received the indemnity earlier mentioned. The letter continued:

"We are instructed that you are in breach of a guarantee given to our client that it would be | supplied with cricket helmets branded 'Superstar' or 'Duncan and Fearnley' despite legal proceed- ings issued by Coonan and Denlay Pty. Ltd. to restrain you from marketing the product.

Accordingly our client has incurred losses of $30,288.28 ..."

The make up of that figure was given. It included advertising said to have amounted to $14,198.28. The letter concluded: "Unless we receive the sum of $30,348.28 in this

office, which includes our legal costs incurred to date of $60.00 within seven days of the date hereof, legal proceedings will be issued without further notice,"

I should next mention evidence of a telex sent by the

applicants' solicitors, Messrs. Allen, Allen & Hemsley, on

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2 October, 1981, to Mr. Marks drawing his attention to alleged breaches of the Chief Judge's orders. A copy of a letter said to have been written by Mr. Marks on behalf of the respondent to its solicitors seeking advice as to what should be done was annexed to Mr. Cook's affidavit. There is no evidence of what the solicitors eventually advised, if indeed they did advise at all. That is some- thing of which I shall say a little more later on.

Mr. Cook said that he himself had never been shown a sealed copy of the Court's order; nor was he aware, until he came to court, of its service at the respondent's regis- tered office on 7 September.

Mr. Cook was cross-examined. It is difficult, without recounting the entirety of that cross-examination, to do justice to all that is contained in it. Mr. Cook's evidence of the advice that had been received about the orders not being in force once an appeal had been filed is to a large extent second-hand, he having been informed about such advice by Mr. Marks over the telephone. But there was apparently one occasion, at least according to the evidence of Mr. Cook, when he was present at a conversation with the respondent's solicitor, Mr. Gregory, when, so Mr. Cook says, this advice was given. His evidence in this regard is in part as

follows:

10. -

"But are you telling me you sat in a conference with Mr. Gregory as solicitor who advised you - when I say you I mean you on behalf of the company - that once the appeal was lodged there was no need for you to obey the orders made by the Chief Judge? ----

As I understand the discussion, yes, your Honour.

There is no doubt about that in your mind? --- No doubt about that in my mind at all.

When was this advice given? --- I sould not give you exact dates."

There followed some discussion between Mr. Patterson, counsel for the respondent and myself. The evidence proceeded:

"You said you sat in on a conference with Mr. Marks and Mr. Gregory? --- Yes.

When was that? --- As I have already indicated, I could not give you exact dates, but there were frequent discussions within the company regarding the matter.

You cannot remember the date when you attended with Mr. Marks on Mr. Gregory and had a conference in which this particular subject was discussed? --- No."

Later the following appears:

"So the situation really is that the appeal was filed, it seems, on the 14th, and from thereafter your company regarded itself as free to sell, take orders, whatever. Is that so? --- yes, that was our under- standing.

I was party to several discussions, as I said, and both Mr. Marks and I had discussed 1t in the manner of a commercial matter, a matter where we were seek- ing to gain the rights to sell helmets. It came as a tremendous surprise to me on 12 November in this court, and I must say Mr. Marks indicated his same surprise, when I was able to contect him on the phone, that the matter had proceeded beyond a commercial matter and was now one which jeopardised the company."

11.

Mr. Cook said that he had not been present in court during the hearing before the Chief Judge, but that he had believed Mr. Marks had been. The transcript of the pro- ceedings on 1 September last confirms that he was present.

A little later Mr. Cook confirmed that Mr. Marks came away with the understanding that, "it was a commercial matter", His evidence continued:

"J do not quite understand that really. Do you mean he thought the judge was some sort of commercial man? -~-- No, not at all. The pro- ceedings, we were led to believe, were in accordance with the proposals of our legal advice to gain us the rights to sell the helmets.

But you were the respondent, I thought, to the proceedings. You were not moving the court, it was the other party who was moving the court? ---

As I understand the situation - and this goes back several months and I cannot pinpoint the incidents - but our legal advice and very initially in this matter was we would propose the helmets for sale, and they were indeed proposed for sale at the March toy fair in 1981, and then in the opinion of our legal counsel that the patents were so assailable we would have no action against us and he said,I understand what he said - to be more correct ~ was that in the unlikely event they took action against us that is the way we will handie the matter."

He said that the respondent's adviser was Mr. Gregory,

to whom I have referred. Mr. Cook's evidence proceeded:

12.

"But apparently the matter was still looked at, to use your phrase, as a commercial matter? --- Yes, aS a commercial matter, your Honour.

I must confess, I do not really understand this. It is difficult, I suppose, without Mr. Marks being here. You do not say in this affidavit where Mr. Marks got his advice from, but presum- ably he is speaking about the same source as you? --~- Yes, I would understand - it would be my belief that no other advice has been sought."

The source was Mr. Gregory.

Mr. Gregory was called to give evidence. He isa solicitor of the Supreme Court of New South Wales. The important parts of his evidence are as follows:

"It is said in this affidavit which has been filed by your office but made by Mr. Cook, if you look at paragraph 3, that tat all times it was our under- standing of our legal advice that the effect of the appeal lodged in respect of the original proceedings cancelled the effect of the orders made in those proceedings'. Did you give that advice? --- I have been told I gave that advice but I have no recollec- tion of giving it.

Do you accept that you gave that advice or not? --- I am not sure, your Honour.

What is the reason for your uncertainty? ~-- I was suffering from flu, pneumonia as my doctor has told me, at that particular time and I was attending the office a couple of hours a day. My doctor had told me I should not be at work but should be at home resting.

Do you have any view as to whether if that advice was given, it was right or wrong? --- It is obviously incorrect, your Honour."

Mr. Gregory was shown the telex from Allan, Allen and Hemsley and the letter said to have been written to hin by

the respondent seeking advice about it. He said that he had

13.

no recollection of seeing the telex. He said that if it had been received, it would be on his file but the file was not in court. He said that 1t could be obtained from his office during the luncheon adjournment.

Counsel for the respondent expressly declined to make any application for an adjournment to enable the file to be got. He also expressly declined to make any application for a further adjournment so that Mr. Marks might return from overseas and be available to give evidence; nor did he seek any adjournment to a point of time beyond which Mr. Marks in the normal course expects to return to Australia.

In the submission of counsel for the applicants, the contempt committed by the respondent was both wilful and contumacious,. The case was one where I should give leave to issue a writ of sequestration but direct that it lie in the office pending payment of an appropriate fine and the applicants' costs of the motion as between solicitor and client.

In the submission of counsel for the'respondent, I should make no order on the motion. I should stand over the question of costs to be dealt with after the final hearing. Counsel submitted that to be the proper course because of assurances

given in the evidence of Mr. Cook that the offending conduct

14,

would not be repeated. I could safely take the view, so said counsel, that there would be no more trouble.

The first matter upon which I should make up my mind is the question of whether I accept Mr. Cook's evidence that the respondent was advised by its solicitor that the institution of the appeal against the Chief Judge's order resulted, in effect, in a stay of proceedings so that the respondent could lawfully continue to market the helmets. If it were established that such advice had been given, it

would be proper to take that matter into account as a

mitigating circumstance; re Tyre Manufacturers Agreement

(1966) 2 A.E.R. 849; Registrar, Court of Appeal, New South Wales v. Permewan Wright Consolidated Pty. Limited (Supreme

Court of New South Wales, Court of Appeal, unreported, 4 May, 1979).

Plainly the respondent bears the onus of establishing to my satisfaction that such advice was given. Mr. Cook does not claim to have been present on each of the occasions deposed to in his affidavit when Mr. Gregory is said to have given this advice. Counsel for the respondent, as I have said, expressly declined to make an application for a further adjournment to enable Mr. Marks to be called. That

in itself is to my mind a curious circumstance, Indeed, it

15.

goes a long way towards persuading me that I cannot safely rely on the evidence.

Then there is the evidence of Mr. Gregory. Along with it should be considered the terms of a medical certificate which was tendered by counsel for the respon- dent without objection. It was dated 26 November, 1981, and given by a Dr. Kitson of the Sydney Cove Medical Centre. The certificate said:

"This is to confirm that I examined Mr. Roy Gregory on 19/10/81 when he was found to be suffering from broncho-pneumonia. His clinical history was consistent with his having had this condition for some weeks previously. I advised him to rest at home on medication. His condition would explain any malaise and absence from normal attendance at his office during the period of his illness which is not yet completely resolved."

I do not regard Mr. Gregory as a satisfactory witness. I find it difficult to believe that he has no recollection at all of what advice he gave. He came to court without his file. He was asked about relevant documents in it and said that these could be obtained during the lunch hour, but counsel expressly declined to ask for an opportunity to enable Mr. Gregory to obtain these documents. In this

connection he said that he did not think that Mr. Gregory's

16.

evidence "would be able to help any more", In those circumstances, it does not seem likely to me that the documents, if produced, would have at all assisted the respondent's case. It may be that they would not have shed any direct light on the advice which was given, but their absence has certainly prevented the whole picture from being placed before me. Just why such a course should be followed astonishes me. Certainly it does not seem likely to be one followed by any straightforward client or solicitor anxious to obtain the court's confidence,

That leaves Mr. Cook's evidence to which I have earlier referred, It does not persuade me positively that the advice in question was given. Much of it is hearsay.

To the extent that 1t is not, it remains under a cloud because of Mr. Marks's absence from the witness box and the unsatisfactory evidence given by Mr. Gregory. If an appropriate application had been made, a witness who would have corroborated what Mr. Cook had said may have been called. If an application for an adjournment to enable Mr. Marks to be called had been made, but refused, that comment could not have been made, or, if made, could not have had the same

significance.

17.

The fact that counsel adopted a course which has resulted in a situation in which Mr. Gregory was not given an opportunity to produce relevant documents and Mr. Marks an opportunity to give evidence points only in one direction so far as I am concerned. I really could not be satisfied that any advice to the effect of that relied upon was given.

Counsel for the respondent also relied on what he claimed to be objective evidence which supported the respondent's case. I do not regard it as more than equivocal. The evidence relied upon shows that no sales of the respondent's helmets were made prior to 14 September, 1981, the day the appeal was instituted. There is, however, evidence to the effect that it is highly likely that orders for the infringing helmets were taken before then but after 4 September, 1981.

A further matter relied upon was the respondent's offer of the indemnities. It was said that these would not have been offered unless the respondent felt confident that it was not in breach of the law for it to market the helmets. I think there are two views open in relation to that matter. I do not regard it as of assistance in resolving the problem of whether to accept the respondent's

case that it acted on legal advice.

18.

One matter which I think militates against accepting it is Mr. Cook's evidence that Mr. Marks and he believed the matter to be a commercial one and believed that it was being settled commercially. They were of that view apparently even after the hearing before the Chief Judge and after service of a sealed copy of the order of 7 September, 1981. It is true that there is no evidence that the terms of that order ever came to Mr. Cook's attention, but it surely must have come to the attention of someone in authority in the respondent's office. As I have said, much of Mr. Cook's evidence is hearsay, based upon his conversations with Mr. Marks. I regard the evidence that Mr. Marks believed the matter to be a commercial one, and this is not necessarily a reflection on Mr. Cook, as an attempt to explain why the respondent acted in utter disregard of the Court's orders. But the evidence does not sit well with the other evidence upon which it relies to the effect that the respondent acted on legal advice that the appeal in effect operated as a stay of proceedings.

For all those reasons I am not persuaded that it did so

act. That is not a matter appropriate, accordingly, to be

19.

taken into account when I consider what I should do,

In my opinion an extremely serious view of the respondent's conduct should be taken, It has wilfully disobeyed the Court's orders. It has, in the language of the cases, acted contumaciously. I have also con- sidered whether I should also find the contempt contumelious. Having reflected on the matter, I have reached the conclusion that the evidence falls short of persuading me that that is sO.

I agree with the submission of counsel for the applicants that the case is one which calls for more than an order for costs. I do not, however, regard the case so seriously as to think that it calls for sequestration of the respondent, Rather, it is a case for an appropriate fine. But a question arises as to whether I have power to impose a fine.

The Court's power to punish for contempt is the same as that of the High Court of Australia; s.31, Federal Court of Australia Act, 1976. The power of the High Court of Australia in this respect is the same as was possessed, at the commencement of the Judiciary Act 1903, by the Supreme Court of Judicature in England; s.24 of that Act which commenced on 25 August, 1903,

Reference should also be made to Order 56 of the High

Court Rules, Rule 9 of which provides that upon the hearing

20.

of an application for committal for contempt the Court may impose a fine instead of ordering the accused person to be committed to prison, or may impose a fine in addition to ordering his committal. Whether the Rules were intended to apply to cases of civil, as distinct from criminal, contempt is not clear, but it is clear that the punishment contemplated seems to be intended to affect only natural persons. No power to give leave to issue a writ of sequestration against a corporation is referred to, at least expressly.

The jurisdiction of superior courts to punish for

contempt has never been defined; In the Matter of a Special

Reference from the Bahama Islands (1893) A.C.138 at p.147. That statement appears only in counsel's argument but seems to have had the approval of the distinguished bench which sat in that case.

The problem was discussed by Windeyer J. in Australian

Consolidated Press Limited v. Morgan (supra). His Honour concluded that there had for many years been power in the English courts to fine for criminal contempt but expressed serious doubts as to whether they had ever had power to fine

for civil contempt. Amongst other things he said (112 C.L.R. at p.499):

21.

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respect of which there applied the provisions of the Equity Act 1901 (N.S.W.) and Rules made thereunder. Nevertheless, I do not regard what Windeyer and Owen JJ. have sa2d as conclusive of what I should do. That is because of a number of English decisions (three of them decided after the Australian Consolidated Press case) to which I now refer.

The first is the decision of Cross J. (as he was)

in Phonographic Performance Limited v. Amusement Caterers (Peckham) Limited (1964) 1 Ch.165. There it was decided

that the Court did have power to impose a fine for a civil contempt. The decision was discussed by Windeyer J. in the Australian Consolidated Press case. He disapproved of it (112 C.L.R. at p.500). Since then fines have been imposed

in other cases involving civil contempt in England. These

are Steiner Products Limited v. Willy Steiner (1966) 2 A.E.R.

387, re Tyre Manufacturers Agreement (supra) and Heatons Transport (St. Helens) Limited v. Transport and General

Workers Union (1973) A.C.15.

The second of these cases was a decision of the Restrictive Trade Practices Court and the third concerned a decision of the National Industrial Relations Court. But

these Courts, in relation to the enforcement of orders, had

the powers of the High Court in England; Restrictive Trade Practices Act 1956 (U.K.) s.2 and cl.10 of the Schedule; Industrial Relations Act 1971 (U.K.) (since repealed) s.99 and cl.27 of Part II of Schedule 3. The High Court of Justice in England is, of course, a division of the Supreme Court of Judicature, In Heatons' case Lord Wilberforce, who delivered the joint opinion of the House of Lords, referred to the two earlier cases with approval saying (p.109) that they were precedents for imposing a fine.

As I read these decisions nothing turns upon any special statutory provision and the law in 1903 should, in accordance with ordinary principles, be deemed to have been as it was found to be in 1973 when Heatons' case was decided. The power which is conferred on the High Court of Australia,- and thus this Court, is the power conferred on the Supreme Court of Judicature in England in 1903. If the English judges,

as witness particularly the more recent cases, consider the

power to fine is there, I do not think that Australian judges,

unless constrained by a binding decision to the contrary,

should take a different view. To do so would not in my opinion be to pay proper regard to the statute in question

(s.24 of the Judiciary Act). The position was not as clear

24.

as it has become since the judgments of Windeyer and Owen JJ. were written. If it had been, it may be that they would have expressed a different view or rested their opinion more on the provisions of the New South Wales statute to which reference has been made. It should not be overlooked that there is, in the older texts referred to in the judgment of Windeyer J, (see the passage earlier quoted) support for the proposition that civil contempt might be punished by the imposition of a fine.

Not without some hesitation, I have therefore reached the conclusion that I do have power to impose a fine upon the respondent if I think that that is the appropriate course to take. No submission to the contrary was made by counsel for the respondent. All he was concerned to do' was to persuade me that this was not a proper case for the imposition of a fine. A fortiori it was not a case for making an order for leave to issue a writ of sequestration, an order plainly within my power to make (see Borrie and Lowe, The Law of Contempt (1973) pp.343 et seq), But as I have mentioned, a middle course proposed by counsel for the applicant was that followed in the Steiner case, namely, leave to issue a writ but it to lie in the office pending

payment of a fine and costs. That course was also strongly

25.

resisted by counsel for the respondent. I do not think it is an appropriate one. Although the case is one for

a fine, there is no evidence to suggest that the fine and costs which will be ordered to be paid will not be paid because of the impecuniosity of the respondent which is

a limited liability company. In those circumstances it does not seem to me that there is anything to be gained by giving leave to issue a writ of sequestration.

The respondent has not put before me any evidence of its financial worth but the evidence discloses that it carries on a substantial business. It has offices in each of the capital cities except Darwin. I should not take the view, therefore, that it will suffer any particular financial hardship as the result of the imposition of what I regard as an appropriate fine. ,

The fabric of the Court's power to settle disputes between citizens is incomplete unless it can and does compel, where application in that behalf is made, enforcement of its orders. The Court's injunctive power 1S widely used and in matters of this kind the exercise of that power is acknowledged to be of substantial public benefit. If the Court's injunctions are not obeyed, the system falls into

disrepute. Parties seeking to enforce their rights will

26.

have no confidence that relief to which they are

lawfully entitled will avail them, at least in any

real sense. The fine to be imposed must, therefore,

be one which sufficiently marks the serious view I have

of the respondent's conduct and also serves as a deterrent to others who may similarly be minded to disobey the Court's orders.

For all the reasons I have given, I have reached the conclusion that the appropriate course is to order the respondent to pay a fine of $10,000 together with the costs of the applicants as between solicitor and client.

I will not this afternoon make a formal order. There are technical questions to be considered as to the form which the order should take. I propose therefore to stand this matter over for a short time to enable counsel to con- sider what I have said. When it is again in the list counsel for the applicants is to bring in short minutes of order to give effect to my decision, firstly, to impose a fine of $10,000 upon the respondent and, secondly, to order it to pay the applicants' costs as between solicitor and client, The matter will be stood over until next Tuesday, 15 December, at 9.30 a.m. for short minutes of order.

{ certify that this and the ab preceding

of the reasons for

ages are a irue copy a e Honourable

judgment herein of Th

5 . on Mr Justice Sheppard. eC . 4 oe Associate

27. Dated 4 December, iq8\