Case: Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 159
Outcome: discussed
Counsel for the District Registrar accepted that his client bore the onus of establishing that Mr Siminton had the capacity to comply with the Full Court's order and that his failure to comply with that order was wilful. He was correct to do so: see Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 159 at [51] ; Pattison v Bell [2007] FCA 137 at [34] . 28 The area of disagreement between the parties was thus narrowed to the question of whether it was necessary for the District Registrar to establish that Mr Siminton had the capacity to pay the full $50,000 fine at relevant times or whether, if he had the capacity to pay part of the fine (as it was conceded he did) and did not do so he could be found guilty of contempt. It was not disputed that a failure to comply with an order of the Court to pay a money amount could constitute a contempt (a proposition supported by decisions of the Court in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries of Australia (2001) 188 ALR 653 at 658 and World Netsafe at [29]) or that the Court had power to deal with such a contempt under s 31(1) of the Federal Court of Australia Act 1976 (Cth) and s 24 of the Judiciary Act 1903 (Cth) (as to which see Mudginberri Station at 105-6). 29 In dealing with the disputed issue both parties sought to rely on a passage from the judgment of Spender J in World Netsafe . His Honour said, at [51], that: "The ACCC is not seeking to imprison Mr Butler because he has not paid a debt to it; it is seeking his committal for disobedience of a court order. Further, and regardless of any possible application of the Debtors Act in the present application, I am of the opinion that to establish contempt of an order to pay within 28 days of the making of the order, it has to be shown that a failure to comply with that order was wilful. That requirement will not be made out unless it is shown that the person the subject of the order has the capacity to comply with it, in whole or in part. A truly impecunious person who does not make a payment which a court has ordered him to pay is not guilty of contempt, in my opinion." The money had been paid to a company as part of pyramid selling scheme promoted by it. The alleged contemnor was the sole shareholder and director of the company. He was found not to have committed contempt by failing to comply with an order requiring him to refund certain moneys which had been paid to the company. This was because it had not been established that he had the means of making the payment. 30 In my view a person who is ordered by the Court to make a payment within a certain time and, within the prescribed period, has the capacity to pay part, but not all, of the amount needed to satisfy the order, is bound to make that part of the payment which he or she has the capacity to make. Failure to make such part payment as the person has the capacity to make will constitute a contempt of Court. I understand Spender J's dictum in World Netsafe to admit this possibility. Where the Court order is made in favour of another person such an approach ensures that that person obtains at least some of the money to which the Court has adjudged him or her to be entitled. Where, as here, the Court has imposed a fine for contempt, a requirement of part payment to the limit of the contemnor's capacity at least partially serves "the very substantial purpose of disciplining the [contemnor] and vindicating the authority of the court": see Mudginberri at 112. It would offend common sense and a sense of justice if a person could avoid complying with a Court order to pay a particular sum when he or she had the capacity to pay most but not all of it.