Case: Australian Competition and Consumer Commission v Hughes [2001] FCA 38
Outcome: considered
Any contempt of court, including any wilful disobedience of the orders of the Court, is a very serious matter. In Australian Competition and Consumer Commission v Hughes [2001] FCA 38 (' ACCC v Hughes '), Tamberlin J said at [15]: 'Ultimately, in the case of mandatory or prohibitory orders made by it, the sanction which the Court has in order to enforce its decisions is the power to punish for contempt. This is the way in which the Court preserves respect for its role and the rule of law. Without the enforcement of court orders the whole process of adjudication becomes a hollow exercise. If a losing party can defy the orders of the Court then such disobedience renders futile, in the perception of the community, the remedy secured by the successful party. Orders are not made simply to suggest or advise persons that they ought to keep to the law as proclaimed but to ensure that the law is carried out as determined by the decision pursuant to which the order is made. Defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts.' Courts have repeatedly made statements to similar effect: see Australian Competition and Consumer Commission v Globex Systems Pty Ltd (2005) 27 ATPR 42-069 (' ACCC v Globex' ) at 43,102 [54]; and Deputy Commissioner of Taxation (Cth) v Hickey and Horne (1999) 42 ATR 229 (' Hickey' ) at 243 [35]. 26 It is not necessary to prove any subjective intent to disobey an order of the Court: ACCC v INFO4PC at 28 [10]; ACCC v Hughes at [20]. A deliberate commission or omission in breach of an injunctive order constitutes wilful disobedience and will amount to a contempt. Such a contempt is usually classed as a civil contempt. Depending on the circumstances, a deliberate act in disobedience of an order can amount to a criminal contempt. A contempt which is the result of an act of defiance, resulting in a deliberate breach of a court order, can be described as contumacious and as criminal in character: see Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 (' Mudginberri' ) at 108; Holloway at 530. 52 The applicant contended that the relevant form of disclosure document was the longer form in Annexure 1, but it proceeded to analyse Mr Spencer's compliance against the short form document in Annexure 2. It submitted that the document that Mr Spencer provided by way of a disclosure statement did not, on any view, comply with the requirements of Annexure 2. In particular, it submitted that it did not comply with Items 1 to 4, 9, 10 and 15 of Annexure 2 of the Code. In addition, the applicant argued that the previous franchise agreements contained ongoing obligations that survived termination, and it said that these obligations were not properly addressed in the short form disclosure document prepared by Mr Spencer. The applicant also submitted that Mr Spencer had made no attempt to contact the applicant, or to approach the Court, to clarify the nature and scope of his obligations in respect of the disclosure document: see ACCC v Hughes at [26]. 53 To some extent, the applicant acknowledged that there were difficulties with paragraph 12 of the Orders. Notwithstanding its contention that there are deficiencies in the disclosure document provided by Mr Spencer, it does not press for an order that a further revised disclosure document be provided by Mr Spencer. 54 I am satisfied that there are difficulties with paragraph 12 of the Order. It is unclear what it requires of Mr Spencer. Once Mr Spencer appreciated the difficulties he confronted in complying with paragraph 12, the appropriate course for him to take would have been to raise those difficulties with the applicant and with the Court. But in all the circumstances, I am not prepared to find that Mr Spencer committed a contempt by the way in which he endeavoured to comply with paragraph 12 of the Orders. 55 The Court has a range of remedies available to it to ensure compliance with its Orders, including fines, sequestration of property and imprisonment: Australian Securities and Investments Commission v Matthews (1992) 32 ACSR 404 at 411; ACCC v Hughes at [28]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 67 IPR 611 (' Louis Vuitton '). Imprisonment is reserved for the most serious criminal contempt cases and is not appropriate here: see Keeley v Mr Justice Brooking [1979] HCA 28 ; (1979) 143 CLR 162 at 179; Gallagher v Durack [1983] HCA 2 ; (1983) 152 CLR 238 at 245; Hickey at 245-246 [38]-[39].