Case: Australian Competition and Consumer Commission v Info4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24
Outcome: applied
There is no doubt that I have power to order imprisonment. The Court's wide range of penalties were summarised in Australian Competition and Consumer Commission v Info4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 by Nicholson J at 54. He said: ' The Federal Court has a wide range of penalties open to it ( Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404 at 411 ( ASIC v Matthews ) per Sackville J) and includes the power to: (a) commit a contemnor to prison for an indefinite period of time ( Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238; Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1985) 5 FCR 169 at 178 per Wilcox J); (b) to impose a fine for a wilful breach of an order or undertaking ( Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd at 109-113; Flamingo Park Pty Ltd at 178 per Wilcox J); (c) to impose a daily fine ( Australasian Meat Industry Employees' Union at 113-115); (d) to order the sequestration of the assets of a contemnor ( Australasian Meat Industry Employees' Union at 115-116); and (e) to suspend on condition any sentence of imprisonment that it might impose in respect to contempt ( Australian Competition and Consumer Commission v Goldstar Corp Pty Ltd [1998] FCA 1441 ; ASIC v Matthews at 411). It is important that the seriousness of a contempt is brought home to the contemnor and that the contemnor realise that their perceptions do not constitute a licence to ignore court orders or legislation directed to the prohibition of deceptive conduct ( Hughes at [24]). In determining what is an appropriate penalty, the intent of the contemnor is important ( Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 at 217-218; Hughes ). A sentence for contempt is punitive, to vindicate the authority of the court ( Australasian Meat Industry Employee' Union at 107). The underlying rationale for every exercise of the contempt power was the necessity to uphold and protect the effective administration of justice. Gibbs CJ, Mason, Wilson and Deane JJ said: "Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the courts orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt (2 nd ed, 1983) say, at p 3: 'if a court lacked the means to enforce its orders, and its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.'"' 26 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].'