mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Securities and Investments Commission v Reid [2005] FCA 1274
Outcome: referred to
that the respondent be committed to prison or otherwise punished for contempt of Court in respect of his breach of the undertaking provided by him to the Honourable Justice Kenny on 8 October 2001 that he would not be involved in the management of a company in any form at all in the future.' 2 The notice of motion was accompanied by a statement of charge under O 40 r 6 of the Federal Court Rules : 'The applicant alleges that the respondent, Maxwell John Reid is guilty of contempt of Court and further that such contempt is wilful and contumacious in so far as: 1. in breach of paragraph 1 of the order of the Honourable Justice Jenkinson of this Court, made on 10 March 1992, wherein the respondent was prohibited from managing corporations until 10 August 2036, the respondent has been involved in the management of the following corporations: 1.1 Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and 1.2 Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003; and 2. in breach of an oral undertaking provided to the Honourable Justice Kenny on 8 October 2001 that he would not be involved in the management of a company in any form at all in the future, the respondent has been involved in the management of the following corporations: 2.1 Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and 2.2 Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003.' 3 The parties asked me to first determine whether I was satisfied that the respondent was guilty of contempt before considering the question of sentence if so satisfied. On 13 September 2005 I published reasons ( Australian Securities and Investments Commission v Reid [2005] FCA 1274) ('the principal reasons') in which I concluded that the applicant had established that the respondent was guilty of contempt as alleged in the statement of charge. I did not at that time determine whether the respondent's contempt should be categorised as technical, wilful or contumacious: Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited [1986] HCA 46 ; (1986) 161 CLR 98. The matter was adjourned to enable submissions to be made in relation to the categorisation of the contempt and sentence.
Case: Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: cited
that the respondent be committed to prison or otherwise punished for contempt of Court in respect of his breach of the undertaking provided by him to the Honourable Justice Kenny on 8 October 2001 that he would not be involved in the management of a company in any form at all in the future.' 2 The notice of motion was accompanied by a statement of charge under O 40 r 6 of the Federal Court Rules : 'The applicant alleges that the respondent, Maxwell John Reid is guilty of contempt of Court and further that such contempt is wilful and contumacious in so far as: 1. in breach of paragraph 1 of the order of the Honourable Justice Jenkinson of this Court, made on 10 March 1992, wherein the respondent was prohibited from managing corporations until 10 August 2036, the respondent has been involved in the management of the following corporations: 1.1 Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and 1.2 Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003; and 2. in breach of an oral undertaking provided to the Honourable Justice Kenny on 8 October 2001 that he would not be involved in the management of a company in any form at all in the future, the respondent has been involved in the management of the following corporations: 2.1 Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and 2.2 Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003.' 3 The parties asked me to first determine whether I was satisfied that the respondent was guilty of contempt before considering the question of sentence if so satisfied. On 13 September 2005 I published reasons ( Australian Securities and Investments Commission v Reid [2005] FCA 1274) ('the principal reasons') in which I concluded that the applicant had established that the respondent was guilty of contempt as alleged in the statement of charge. I did not at that time determine whether the respondent's contempt should be categorised as technical, wilful or contumacious: Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited [1986] HCA 46 ; (1986) 161 CLR 98. The matter was adjourned to enable submissions to be made in relation to the categorisation of the contempt and sentence.
Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: cited
In Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530, the High Court said: 'In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal offence if it involves deliberate defiance, or as it is sometimes said, if it is contumacious.' 18 The respondent's conduct must be described as wilful disobedience of Jenkinson J's order and the undertaking given to Kenny J. It was contumacious. It made the contempt a criminal contempt. I will expand on this a little later but Mr Reid's contumacy is evidenced by a number of statements which he made to a psychologist whose report was tendered to this Court. 19 The applicant seeks an order that Mr Reid only be punished for the breach of Jenkinson J's order made on 10 March 1992 and not for the further breach of the undertaking given to Kenny J on 8 October 2001. That seems to me appropriate. The undertaking given to Kenny J was in similar terms to the order made by Jenkinson J. In those circumstances, it would not be appropriate, as the applicant has recognised, that the respondent be punished for the same conduct which contravenes the order and the undertaking. He should only be punished for breach of the order.
Case: Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537
Outcome: applied
In Australian Competition and Consumer Commission v World Netsafe Pty Ltd [2003] FCA 1501 ; (2003) 204 ALR 537 at 540, Spender J listed a number of indicia that were relevant in deciding on the appropriate penalty. He said: 'Considerations which are relevant in deciding what is the appropriate penalty include: (a) The relative seriousness of the contempt, which is determined by the extent to which the contemnor appreciated that a contempt was being committed: ACCC v Info4PC.Com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 at [144] ( Info4PCCom ). (b) Whether the contemnor subjectively intended to disobey the order: Attorney-General v Times Newspapers Ltd [1992] 1 AC 191; [1991] 2 All ER 398 at AC 218; ACCC v Hughes (2001) ATPR 41-807 at [20] ( Hughes ); and Info4PC.Com . (c) The importance of bringing home to the contemnor the seriousness of the contempt: Hughes at [24]; Info4PC.Com at [139]. (d) Whether the contemnor has offered any explanation or apology for his conduct: Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238; 45 ALR 53 at CLR 245 per Gibbs CJ, Mason, Wilson and Brennan JJ. (e) An acknowledgment by the contemnor that a contempt was committed may be a mitigating factor: Matthews at [25] and [29].' 28 As the principal reasons show, a consideration of each of the indicia mentioned by Spender J must lead to a conclusion that this was a very serious contempt committed in full knowledge of the existence of the order and undertaking which were contravened, and in circumstances where the respondent has shown not the slightest indication of remorse or contrition or, indeed, even an acknowledgement of the commission of the contempt. 29 I am satisfied, unless the applicant's personal circumstances require otherwise, that the respondent must be sentenced to imprisonment in respect of his contempt. 30 The respondent was born in Tasmania on 10 August 1944 and thus, is nearly 62 years of age.
Case: McIntyre v Perkes &amp; Another [1987] 15 NSWLR 417
Outcome: cited
There is no rule which requires that a respondent in contempt proceedings pay costs on a solicitor and client basis: McIntyre v Perkes &amp; Another [1987] 15 NSWLR 417. However, the respondent's conduct which gave rise to these proceedings and the civil proceedings, and his conduct in these proceedings, make such an order appropriate. 48 There will be an order that the respondent pay the applicant's costs on a solicitor and client basis. I will make the declaration that the respondent has committed the contempts alleged in the Statement of Charge. 49 Mr Reid has indicated that he intends to appeal from this decision.
Case: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: applied
I find that ordinary reasonable numbers of the public would read new condition 6 in conformity with Ms McBeath's intention. That is a natural and ordinary meaning. Even if, the true contractual construction were as Creative's counsel submitted, the way in which new condition 6 is expressed leaves it open to other reasonable constructions: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at 85 [103] . As Lord Devlin said about conveying meanings, albeit in the case of a defamatory publication, ( Lewis v Daily Telegraph Ltd [1964] AC 234 at 285): '... it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that.'
Case: Cowell v Rosehill Racecourse Company Ltd [1937] HCA 17 ; (1937) 56 CLR 605
Outcome: cited
Next, Creative argued that the ticket constituted an offer of a licence on conditions of entry which included the right, in condition of entry 1, to refuse entry to the holder for any reason. The ticket gave no proprietary right to a ticket holder to attend the venue. Since Cowell v Rosehill Racecourse Company Ltd [1937] HCA 17 ; (1937) 56 CLR 605, it is clear that a ticket to attend an event such as Big Day Out 2007 simply gives the holder a licence which is revocable by the licensor. Revocation of the licence so given may be effective, even if the licensor is in breach of the contract by the act of revocation: Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39 ; (1977) 137 CLR 487 at 506 per Aickin J. The position may be different under the s 87 of Trade Practices Act 1974 (Cth) which is not confined to common law or equitable remedies. And, consideration may need to be given to the effect of terms implied by s 74 of Trade Practices Act 1974 (Cth). It is not necessary for the determination of these proceedings to enter into that field.
Case: Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 ; (1986) 161 CLR 500
Outcome: applied
I am of opinion that the condition of entry 1 read together with the other conditions of entry in light of the terms of the ticket as a whole, and having regard to the objective circumstances in which the contract for entry to the venue is entered into, does not give an unlimited right to Creative to refuse a person entry regardless of whether the original purchaser from Creative breached new condition 6 ( Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 ; (1986) 161 CLR 500 at 510-511).
Case: Gange v Sullivan [1966] HCA 55 ; (1966) 116 CLR 418
Outcome: cited
In Gange v Sullivan [1966] HCA 55 ; (1966) 116 CLR 418 at 441, Taylor, Menzies and Owen JJ noted that the first step to deciding the question of construction in the case like the present was to understand the condition and its significance to the parties. They continued: ' Suttor v. Gundowda Pty. Ltd. ((1950) [1950] HCA 35 ; 81 CLR 418), together with other cases, was relied upon to support the conclusion that non-fulfilment of the condition did not of itself bring the contract to an end but did no more than render the contract voidable at the instance of a party not responsible for the non-fulfilment of the condition. Whilst the effect of a condition must in every case depend upon the language in which it is expressed and a decision upon the meaning of one condition cannot determine the meaning of a different condition, the authorities cited do show a disposition on the part of courts to treat non-fulfilment of a condition such as that here under consideration as rendering a contract voidable rather than void in order to forestall a party to a contract from gaining some advantage from his own conduct in securing, or contributing to, the non-fulfilment of a condition bringing the contract to an end.'
Case: Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39 ; (1977) 137 CLR 487
Outcome: cited
Next, Creative argued that the ticket constituted an offer of a licence on conditions of entry which included the right, in condition of entry 1, to refuse entry to the holder for any reason. The ticket gave no proprietary right to a ticket holder to attend the venue. Since Cowell v Rosehill Racecourse Company Ltd [1937] HCA 17 ; (1937) 56 CLR 605, it is clear that a ticket to attend an event such as Big Day Out 2007 simply gives the holder a licence which is revocable by the licensor. Revocation of the licence so given may be effective, even if the licensor is in breach of the contract by the act of revocation: Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39 ; (1977) 137 CLR 487 at 506 per Aickin J. The position may be different under the s 87 of Trade Practices Act 1974 (Cth) which is not confined to common law or equitable remedies. And, consideration may need to be given to the effect of terms implied by s 74 of Trade Practices Act 1974 (Cth). It is not necessary for the determination of these proceedings to enter into that field.
Case: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157
Outcome: applied
The ticket gave a right of admission to a Big Day Out 2007 festival, subject to the conditions of entry. Obviously, new condition 6 forms part of the conditions of entry, because it is directed to the right to enter of a holder of a cancelled ticket. The wording of new condition 6 is capable of being construed, as Hill and Finkelstein JJ said of a similar condition in Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at 183 [98] (Emmett J agreeing on this point at 197 [164]), as one of: &#8226; a contractual promise not to sell for profit, breach of which gives rise to a claim for damages but might or might not justify rescission; &#8226; a condition precedent to performance by Creative of its obligation to procure admission to the festival, which it could waive; &#8226; a delimitation of the licence granted by the ticket so that a failure to comply with it extinguishes the licence. Hill and Finkelstein JJ found that contract there involved a promise in the form of a condition of the contract by the original purchaser not to resell the ticket at a premium ( Hospitality 110 FCR at 184 [104]-[105]). 37 The language of new condition 6 is quite different to that of the condition considered by the Full Court. I am of opinion that it is a delimitation of the licence. This is because it provides, in imperative language, that the ticket will be cancelled if the proscribed event occurs. The contractual intention is that the licence which presentation of the ticket at the door or place of entry into the Big Day Out 2007 festival would be given ordinarily will not be available if the ticket has been resold for profit. Even if I am wrong so to construe new condition 6, I am of opinion that an ordinary reasonable member of the class of holders and intending purchasers or holders of tickets would understand new condition 6 in this way.
Case: Lewis v Daily Telegraph Ltd [1964] AC 234 
Outcome: applied
I find that ordinary reasonable numbers of the public would read new condition 6 in conformity with Ms McBeath's intention. That is a natural and ordinary meaning. Even if, the true contractual construction were as Creative's counsel submitted, the way in which new condition 6 is expressed leaves it open to other reasonable constructions: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at 85 [103] . As Lord Devlin said about conveying meanings, albeit in the case of a defamatory publication, ( Lewis v Daily Telegraph Ltd [1964] AC 234 at 285): '... it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that.'
Case: MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55 ; (1975) 133 CLR 125
Outcome: considered
Where a ticket or other document is intended by the issuer to contain terms of the contract such as an exemption clause or a foreign jurisdiction clause or other special condition, the issuer cannot rely on those terms unless, at the time of contract, it did all that was reasonably necessary to bring the terms to the other party's attention: Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 228-229 per Brennan J; MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55 ; (1975) 133 CLR 125 at 137 per Stephen J, 143 per Jacobs J; Sydney Corporation v West [1965] HCA 68 ; (1965) 114 CLR 481 at 485 per Barwick CJ and Taylor J; see too at 503 per Windeyer J. 79 eBay responded that if Creative's argument that the unlimited scope of its power to refuse entry under condition of entry 1 were correct, then the arrangement entered into between Creative and a 'purchaser' could not, in law, amount to a contract because there was no consideration at all. eBay said that this would show that Creative was free to perform or not without having any liability or obligation if it refused entry for no reason whatsoever, referring to MacRobertson [1975] HCA 55 ; 133 CLR 125. eBay argued that, on this premise, there was no contract unless and until the ticket was presented for entry to the venue and Creative acted on the presentation to admit the presenter to the event. At that point a contract was entered into on the analysis above for the admission into the venue and for the governing of the relationship between the relevant ticket holder and Creative while the event was in progress. It is unnecessary to determine the correctness of these contentions 80 I am of opinion that the existence of the numerous potential contractual relationships between Creative and its purchasers overlaid with the uncertainty as to the application and operation of new or old condition 6 in the circumstances I have described demonstrates that by seeking to claim that new condition 6 is enforceable, Creative has engaged in conduct which is, or is likely to be misleading and deceptive conduct towards members of the public. Moreover, for the reasons I have given new condition 6 conveys a representation that falsely asserts that tickets resold for profit will invariably be cancelled. 81 I am of opinion that eBay is entitled to a declaration, and an injunction to prevent Creative from engaging in the contraventions of s 52 of the Act which I have found. The parties asked for the opportunity to address on the form of relief. I will hear them and then make final orders.
Case: Quinn Villages Pty Ltd v Mulherin [2006] QCA 433
Outcome: cited
In Quinn Villages Pty Ltd v Mulherin [2006] QCA 433 at [44] Cullinane J (with whom McMurdo P and Holmes JA agreed) said that a court would give effect to a clause bringing a contract to an end in the eventualities for which it provides if the language was sufficiently explicit. Nonetheless, he noted that there was a plain disposition to treat such a clause as rendering the contract voidable not void: see also Havenbar Pty Ltd v Butterfield [1974] HCA 24 ; (1974) 133 CLR 449 at 456 per Menzies, Stephen and Jacobs JJ. Here, new condition 6, is designed to bring about automatic termination because of the breach by the purchaser. Such a breach is not rationally capable of being taken advantage of by the purchaser so as to call for the implication that the innocent party may elect to avoid the contract, because he or she has paid the money, obtained a ticket which is sought to be passed on, and then ceases to have any real interest in the subject matter. Rather, the clause is directed to preventing the purchaser in engaging in that very activity. There is no benefit to the vendor, Creative, in giving it an election in such circumstances as to whether to treat the contract as at an end. The wording of this new condition 6 suggests that it should operate to avoid tickets automatically. It was not suggested by Creative in argument how the application of the principle that a party is not entitled to rely upon his or her own default, should enliven the construction of new condition 6 that it be voidable rather than void.