mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: cited
Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106-107 (' Mudginberri ') and 112-113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 (' Witham ') at 530. As is apparent from the Statement of Charge, Louis Vuitton is alleging both civil and criminal contempt. However, as all proceedings for contempt are now regarded as criminal in nature, all of the charges must be proved beyond reasonable doubt: see Witham at 534.
Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281
Outcome: cited
I have taken into account the limited financial means of the respondents but have concluded that that should not prevent the imposition of significant fines as the penalties in the present case should be those that are necessary to vindicate the Court's authority and to deter others from engaging in similar conduct: cf Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281 at 284-285 ([9]-[10]). I have also concluded that the totality principle should be applied with the consequence that a total amount should be fixed by way of penalty for each of the respondents. 29 In all the circumstances I have determined that the imposition of a fine of $20 000 on each of the respondents is appropriate.
Case: Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd (2003) 196 ALR 350
Outcome: cited
While the power to award costs in all proceedings is discretionary, it is common for costs, and on some occasions indemnity costs, to be awarded in favour of a successful applicant in contempt proceedings: see generally Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd (2003) 196 ALR 350 at 351-353 and Rip Curl International Pty Ltd v Phone Lab Pty Ltd (2004) 63 IPR 496 at 509 [53].
Case: Rip Curl International Pty Ltd v Phone Lab Pty Ltd (2004) 63 IPR 496
Outcome: cited
While the power to award costs in all proceedings is discretionary, it is common for costs, and on some occasions indemnity costs, to be awarded in favour of a successful applicant in contempt proceedings: see generally Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd (2003) 196 ALR 350 at 351-353 and Rip Curl International Pty Ltd v Phone Lab Pty Ltd (2004) 63 IPR 496 at 509 [53].
Case: John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351
Outcome: cited
Criminal contempt is an indictable offence at common law: see John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364. However, civil contempt constituted by the mere failure to comply with an order or a deliberate, but not contumacious, breach of an order was traditionally regarded as a matter for the parties, rather than for the courts. Thus, traditionally, the dichotomy between civil and criminal contempt claims had the consequence that civil, but not criminal, contempt may be waived by the aggrieved party: see Witham at 533 and 540, Poj &eacute; v Attorney-General of British Columbia [1953] 1 SCR 516 (' Poj &eacute;') and Gompers v Buck Stove &amp; Range Co 221 US 418 (1911) (' Gompers ').
Case: Poj &eacute; v Attorney-General of British Columbia [1953] 1 SCR 516
Outcome: cited
Criminal contempt is an indictable offence at common law: see John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364. However, civil contempt constituted by the mere failure to comply with an order or a deliberate, but not contumacious, breach of an order was traditionally regarded as a matter for the parties, rather than for the courts. Thus, traditionally, the dichotomy between civil and criminal contempt claims had the consequence that civil, but not criminal, contempt may be waived by the aggrieved party: see Witham at 533 and 540, Poj &eacute; v Attorney-General of British Columbia [1953] 1 SCR 516 (' Poj &eacute;') and Gompers v Buck Stove &amp; Range Co 221 US 418 (1911) (' Gompers '). 36 Accordingly, on the basis of the traditional approach a claim for civil contempt that involved injury to the private rights of a litigant was able to be the subject of a settlement or compromise between the parties. Indeed, in both Poj &eacute; and Gompers the courts accepted that a private civil contempt claim or prosecution arising as a result of breaches of a court order could be settled between the parties, but held that the settlement could not have any impact or consequence for a criminal contempt claim or prosecution in respect of the same conduct. 39 The distinction drawn in the majority judgment in Witham between the purpose of a contempt proceeding and an aggrieved party's purpose in bringing a contempt proceeding is significant. It was in that context that their Honours referred to the observation in Canadian Transport v Alsbury (1952) 7 WWR (NS) 49 (which was affirmed on appeal in Poj &eacute;) that it is not the law that a party's willingness to 'swallow the contempt' has the consequence that the court can do nothing about it. As was observed in Poj &eacute; at 520 a contempt may be civil or criminal 'depending upon the nature and quality of the conduct in question in any particular case'. It must follow that, as a claim based inter alia on a breach of a court order has the potential to be a claim of both civil and a criminal contempt, there is some difficulty in purporting to offer to settle, or in settling, the 'contempt' claim.
Case: Gompers v Buck Stove &amp; Range Co 221 US 418 (1911)
Outcome: cited
Criminal contempt is an indictable offence at common law: see John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364. However, civil contempt constituted by the mere failure to comply with an order or a deliberate, but not contumacious, breach of an order was traditionally regarded as a matter for the parties, rather than for the courts. Thus, traditionally, the dichotomy between civil and criminal contempt claims had the consequence that civil, but not criminal, contempt may be waived by the aggrieved party: see Witham at 533 and 540, Poj &eacute; v Attorney-General of British Columbia [1953] 1 SCR 516 (' Poj &eacute;') and Gompers v Buck Stove &amp; Range Co 221 US 418 (1911) (' Gompers '). 36 Accordingly, on the basis of the traditional approach a claim for civil contempt that involved injury to the private rights of a litigant was able to be the subject of a settlement or compromise between the parties. Indeed, in both Poj &eacute; and Gompers the courts accepted that a private civil contempt claim or prosecution arising as a result of breaches of a court order could be settled between the parties, but held that the settlement could not have any impact or consequence for a criminal contempt claim or prosecution in respect of the same conduct.
Case: Attorney-General v Times Newspapers Ltd [1974] AC 273
Outcome: cited
The rationale for waiver in respect of a civil contempt was explained by Lord Diplock in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 307: 'One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a "civil contempt". The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement.'
Case: Harman v Secretary of State for the Home Department [1983] AC 280
Outcome: cited
In Harman v Secretary of State for the Home Department [1983] AC 280 at 310 Lord Scarman observed: 'The distinction between "civil" and "criminal" contempt is no longer of much importance, but it does draw attention to the differences between on the one hand contempts such as "scandalising the court," physically interfering with the course of justice, or publishing matter likely to prejudice fair trial, and on the other those contempts which arise from non-compliance with an order made, or undertaking required, in legal proceedings. The former are usually the business of the Attorney-General to prosecute by committal proceedings (or otherwise): the latter, constituting as they do an injury to the private rights of a litigant, are usually left to him to bring to the notice of the court. And he may decide not to act: he may waive, or consent to, the non-compliance.'
Case: Kerridge v Simmonds [1906] HCA 66 ; (1906) 4 CLR 253
Outcome: cited
A further difficulty with settlement of a claim of 'a criminal nature' that is in the public interest, rather than merely just in the private interest of the parties, is that it may be contrary to public policy. In Kerridge v Simmonds [1906] HCA 66 ; (1906) 4 CLR 253, the High Court held that a settlement which involved the withdrawal of a private prosecution for unlawful publication of defamatory matter was not contrary to public policy, and therefore void, because the offence was not of a public nature but, rather, was one for which the injured persons could sue and recover damages. The principle stated by Griffith CJ (at 258) was that: '... there is no objection to compromising a claim for private injury resulting from an act which amounts to an indictable offence provided that it is not a matter of public concern.' And (at 260) '... I am of opinion that it is not unlawful for a person defamed, or who has sustained purely personal injury, to withdraw a prosecution already instituted for such an offence, or to agree not to institute such a prosecution. Where a person is entitled to recover pecuniary damages, the suggestion that there is a social duty incumbent upon him to prosecute is untenable. The law allows him either to prosecute or to sue for damages, and I can see nothing to prevent him from agreeing to receive an indemnity for the personal injury he has sustained, leaving the representatives of the public to prosecute if they think fit. If, as in some cases, he is the only person entitled to institute the prosecution, then &acirc; fortiori it is a matter of private, and not of public, concern.' 41 Barton J agreed and observed (at 262) that the propriety in suppressing a prosecution by a private bargain may depend on whether: 'any interest of a public character could be involved in [the] prosecution.'
Case: Bitech Engineering v Garth Living Pty Ltd [2009] FCA 1393
Outcome: related
26 November 2009, I delivered Reasons for Judgment in these matters ( Bitech Engineering v Garth Living Pty Ltd [2009] FCA 1393) ( the principal judgment ). On that day, I reserved all questions of costs for determination on the papers. I directed that the parties file Written Submissions on the question of costs. All parties have now filed Written Submissions. In the proceeding between it and Flameglow Pty Limited ( Flameglow ), the applicant ( Bitech ) seeks to tender on the question of costs certain correspondence passing between its lawyers (DLA Phillips Fox) and the lawyers for Flameglow. That correspondence is to be found at pp 18 33 of Bitech's Written Submissions on Costs dated 3 December 2009. That correspondence will become Exhibit A in the costs applications. Flameglow tenders on the question of costs in the proceeding against it a letter from its solicitors (Donaldson Walsh) to DLA Phillips Fox dated 23 May 2008. That letter will become Exhibit 1 in the costs applications.
Case: Bitech Engineering v Flameglow Pty Ltd [2008] FCA 1583
Outcome: related
took virtually no part in the final hearing. At [8] in the principal judgment, I said: The unjustified threats Claim will turn on the resolution of the other issues referred to in [6] and [7] above. That Claim was adjourned on 21 October 2008 because Mr Ogilvie, the principal witness to be called by Flameglow in support of that Claim, was ill and could not attend Court when the hearing of the other liability issues took place. The orders made on that occasion and the reasons for them are to be found in Bitech Engineering v Flameglow Pty Ltd [2008] FCA 1583. In addition, Flameglow did not participate to any real extent in the hearing before me. Its participation was confined to seeking to have its unjustified threats claim adjourned and to seeking to read an affidavit sworn by Mr Ogilvie, which I rejected. After I published the principal judgment, I was informed that, on 2 June 2009, Flameglow had been placed into voluntary liquidation. Although there is no evidence of this fact before me at the moment, both parties have made their submissions on costs upon the basis that Flameglow is now in voluntary liquidation. I will proceed upon the basis that Flameglow was placed into voluntary liquidation on 2 June 2009. In due course, I will need to be satisfied by admissible evidence that this is the fact. The effect of the voluntary liquidation of Flameglow is that, as and from 2 June 2009, no action or proceeding is to be proceeded with or commenced against Flameglow except by leave of the Court. Leave may be given on such terms as the Court may impose (s 500(2) of the Corporations Act 2001 (Cth)). As is apparent from the reasons which I gave on 21 October 2008, when the unjustified threats claim was adjourned (as to which see Bitech Engineering v Flameglow Pty Ltd [2008] FCA 1583) , Senior Counsel for Bitech sought a special order in respect of costs as part of the terms upon which the adjournment requested by Flameglow should be allowed. At that time, I deferred dealing with those submissions but indicated that Bitech's position would be adequately protected. At the directions hearing held before me on 3 December 2009, Flameglow sought a two week adjournment of the balance of its Cross-Claim in order to allow the liquidators of Flameglow to come to a view as to whether or not that Cross-Claim should now be prosecuted to finality. I agreed to that adjournment but indicated that I expected the liquidators to have come to a firm decision by 16 December 2009, the date to which the matter has been adjourned. I am not presently dealing with the costs of that part of Flameglow's Cross-Claim which comprises its unjustified threats claim. The costs of that claim will be determined when the balance of Flameglow's Cross-Claim is resolved. Notwithstanding the fact that I am not currently dealing with the costs of the unjustified threats claim, the existence of that claim and its unresolved status are both matters which I am entitled to take into account in determining what orders for costs (if any) I should make at the moment.
Case: Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225
Outcome: followed
notion that Bitech should pay Garth Living's costs on an indemnity basis is based upon Garth Living's contention that Bitech unreasonably rejected a settlement offer made by Garth Living. The relevant principles are to be found in Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225 at 233 234; Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152 153 (per Black CJ) and at 156 158 (per Cooper and Merkel JJ); and in University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at [32] [33] (p 368). In order to justify an order for indemnity costs by reason of the rejection of a settlement offer, the claimant must show that the refusal to accept the offer was unreasonable in all the circumstances at the time when the offer was rejected. The settlement offer relied upon by Garth Living in the present case was made on 11 July 2008 in a letter from Garth Living's lawyers (Eales &amp; Mackenzie) to DLA Phillips Fox dated that day. Omitting formal parts, that letter was in the following terms: Without Prejudice Save as to the Question of Costs Dear Sirs, Re: Garth Living Pty Ltd and Anor -ats- Bitech Engineering No. NSD 1681 of 2006 The First Respondent/Cross Claimant hereby offers to settle the proceeding inclusive of the Applicant/Cross Respondent's claim, interest and costs, on the following terms ("Offer of Settlement"): The Applicant discontinue the proceeding; The Applicant pay to the First Respondent its costs to date in defending the proceeding; The First Respondent discontinue its cross-claim; There be no order as to costs on the cross-claim. The Offer of Settlement is open for acceptance in writing until 4.00pm on Friday 25 July 2008 after which time it will expire. The Offer of Settlement is made in accordance with the principles applied in Calderbank -v Calderbank (1975) 3 All ER 333 and Cutts -v- Head [1983] EWCA Civ 8 ; (1984) 1 All ER 597 and adopted in the Supreme Court of Victoria in MT Associates Pty Ltd -v- Aqua Max Pty Ltd and Anor (No. 3) (2000) VSC 163 and on the basis of the policy considerations referred to by Hon. Justice Byrne in Mutual Community Limited -v- Lorden Pty Ltd (unreported Supreme Court of Victoria, Byrne J. 28 April 1993 at 12-13) as referred to in Stipanov -v- Mier (No. 2) (unreported Sup. Crt. Victoria, Hollingworth J. 22 November 2006); (2006) VSC 424 , at para 10. Should the Offer of Settlement not be accepted by the Applicant, the First Respondent reserves its right to produce this letter to the Court on the question of costs, and to make application to the Court for an award of indemnity costs against the Applicant for all costs of the proceeding from the date of the Offer of Settlement (including any trial). Should you require clarification in respect to any aspect of the Offer of Settlement, then please contact me. Please confirm receipt of this correspondence.
Case: Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd [2004] FCA 1212
Outcome: applied
11 July 2008, Bunnings made a further offer of settlement in which it proposed that Bitech should discontinue its proceeding against Bunnings and pay Bunnings' costs of that proceeding. There was no element of compromise in this offer. It cannot assist Bunnings in its claim for indemnity costs (see Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd [2004] FCA 1212 at [10] ; Vasram [2002] FCA 1286 at [12] ). Bunnings has not made out a case for indemnity costs.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Outcome: followed
notion that Bitech should pay Garth Living's costs on an indemnity basis is based upon Garth Living's contention that Bitech unreasonably rejected a settlement offer made by Garth Living. The relevant principles are to be found in Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536 ; (1993) 46 FCR 225 at 233 234; Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 152 153 (per Black CJ) and at 156 158 (per Cooper and Merkel JJ); and in University of Western Australia v Gray (No 21) [2008] FCA 1056 ; (2008) 249 ALR 360 at [32] [33] (p 368). In order to justify an order for indemnity costs by reason of the rejection of a settlement offer, the claimant must show that the refusal to accept the offer was unreasonable in all the circumstances at the time when the offer was rejected. The settlement offer relied upon by Garth Living in the present case was made on 11 July 2008 in a letter from Garth Living's lawyers (Eales &amp; Mackenzie) to DLA Phillips Fox dated that day. Omitting formal parts, that letter was in the following terms: Without Prejudice Save as to the Question of Costs Dear Sirs, Re: Garth Living Pty Ltd and Anor -ats- Bitech Engineering No. NSD 1681 of 2006 The First Respondent/Cross Claimant hereby offers to settle the proceeding inclusive of the Applicant/Cross Respondent's claim, interest and costs, on the following terms ("Offer of Settlement"): The Applicant discontinue the proceeding; The Applicant pay to the First Respondent its costs to date in defending the proceeding; The First Respondent discontinue its cross-claim; There be no order as to costs on the cross-claim. The Offer of Settlement is open for acceptance in writing until 4.00pm on Friday 25 July 2008 after which time it will expire. The Offer of Settlement is made in accordance with the principles applied in Calderbank -v Calderbank (1975) 3 All ER 333 and Cutts -v- Head [1983] EWCA Civ 8 ; (1984) 1 All ER 597 and adopted in the Supreme Court of Victoria in MT Associates Pty Ltd -v- Aqua Max Pty Ltd and Anor (No. 3) (2000) VSC 163 and on the basis of the policy considerations referred to by Hon. Justice Byrne in Mutual Community Limited -v- Lorden Pty Ltd (unreported Supreme Court of Victoria, Byrne J. 28 April 1993 at 12-13) as referred to in Stipanov -v- Mier (No. 2) (unreported Sup. Crt. Victoria, Hollingworth J. 22 November 2006); (2006) VSC 424 , at para 10. Should the Offer of Settlement not be accepted by the Applicant, the First Respondent reserves its right to produce this letter to the Court on the question of costs, and to make application to the Court for an award of indemnity costs against the Applicant for all costs of the proceeding from the date of the Offer of Settlement (including any trial). Should you require clarification in respect to any aspect of the Offer of Settlement, then please contact me. Please confirm receipt of this correspondence.