Case: Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518
Outcome: referred to
these proceedings I found the applicant has satisfied me beyond reasonable doubt that the respondent was guilty on four charges of contempt in my judgment in Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518. Today I have heard evidence from the respondent both on affidavit and in the witness box relating to the circumstances in which the contempts occurred and his current attitude in relation to the subject matter of those charges. The applicant accepts that the respondent is now complying with the orders made by Wilcox J on 15 December 2005 and as I understand he has complied since at least I gave judgment on 9 May 2006. Although the applicant has filed an affidavit of Ms Than on 16 May 2006 which refers to a Mr Dennis Henry Monamy, owning some property, the respondent is Dennis Alfred Monamy and no suggestion was made when the respondent was being cross-examined that he was the owner of any property. In his evidence the respondent has deposed to commencing work in around 1990 as a contractor with the applicant installing floor coverings on a regular basis. That relationship ended in around 1995 when he was unable to agree on further terms with the applicant. He said he began trading under the business name Simply Natural Floorcoverings in around 1995 and created a web site for that purpose. During the middle of 2005 the applicant and the respondent began a series of communications that ultimately led to the litigation and mediation in this court resulting in the orders made by Wilcox J on 15 December 2005. The question then arises as to what fine I ought impose on each of the counts that I have found proved and for which I have convicted the respondent. Charge 6 involved the use of the business name Simply Natural Floorcoverings with 'floorcoverings' as one word on the web site for a period that commenced at least on 19 January 2006 and continued at least to 2 March 2006, as I found in Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 at [37] and [38]. I am of opinion that that was conduct which was quite clearly against both the spirit of the heads of agreement and the terms of the consent orders. While I cannot take account of the heads of agreement in imposing penalty, I am entitled to have regard to the fact that the respondent had urged that the orders were ones that he did not believe he needed to obey within any particular time. The fact is that by 2 March 2006 he had applied to and succeeded in changing his business name to separate the word 'floorcoverings' into two separate words. It was plain, in my opinion, that that should have been done a long time before, at least no later than when he was served with a properly endorsed set of orders on 19 January 2006. I do not think that this contempt has been satisfactorily explained. It is appropriate that the court, in addition to requiring a payment of costs, should impose a penalty by way of a fine. In all the circumstances, I will impose a fine of $1500 for that breach. Charge 11 involved the use of the HTML meta tag which I described in Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 at [41] - [47] . That conduct was engaged in between at least 1 March 2006, as I found ([2006] FCA 518 at [47]), and at least no later than 24 April 2006, which is the date Ms Than refers to in par 5 of her affidavit of 15 May 2006 as the date on which the disclaimer was noted by her to appear. The period to which I have regard in imposing the fine in respect of charge 11 should, I think, reflect most prominently the use of the meta tag in the period between 1 March 2006 and the date of my finding of guilt on 12 April 2006, which is a period of almost six weeks. In my opinion, this breach was quite flagrant, as I described in Natural Floor Covering Centre Pty Ltd v Monamy (No1) [2006] FCA 518. It was a deliberate attempt to evade the very clear order requiring an active communication by the respondent of the dissociation of his business from the applicant's. The use of the meta tag was calculated to avoid giving effect at all to the order. It was an attempt to disguise the very thing the order required be revealed: namely, the dissociation of the businesses. I do not accept any explanation that the respondent has sought to give of that behaviour. In the witness-box today he asserted that he had put the meta tag there knowing, as he said, that it would not be visible to the ordinary viewer of the webpage but that it might be seen in some web browsers. The reason he gave for putting the disclaimer in a meta tag, was that he thought that that was above the fold referred to in the order. For the reasons that I gave in Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 , the use of the words 'above the fold' makes no difference to the proper construction of the orders or the flagrancy of the evasion which the use of the meta tag involved. In my opinion, that behaviour was quite contumacious and deliberate, as well as being 'clever' in both senses of that word. I think I should mark the court's disapprobation of that conduct by imposing a fine of $2500. In reaching the view which I have expressed, at this stage tentatively, as to the appropriate fines to be imposed I have had regard to the nature and circumstances of each offence as I have outlined already. I have also had regard to the matters referred to, although I may not necessarily be required to do so, in s 16A of the Crimes Act 1914 (Cth) in relation to sentence. In particular, each of the offences is related to the others and forms part of an ongoing course of conduct which ultimately came to an end with the recognition that the respondent has now given that his conduct was wrong and in breach of the orders.