Case: Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24
Outcome: considered
The applicant carries the onus of proof. The charges must be proved beyond reasonable doubt: see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 (' Holloway' ) at 534; Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 (' ACCC v INFO4PC' ) at 27-28 [4]. 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. 28 Thus, it will be sufficient to establish a contempt if it is proved beyond reasonable doubt that the person in question was aware of the order and intentionally did an act, or omitted to perform an act, with the result that there was a breach of the order. An honest belief that a failure to act does not constitute a breach of an injunction is not a defence, but it may be relevant to penalty: see McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 313-314; ACCC v INFO4PC at 28 [10]. 35 A person in Mr Spencer's position must strictly observe the terms of a Court order. It is not necessary for the Court to prescribe the manner in which the required result is to be achieved. It is sufficient if the Court clearly specifies that the respondent is to carry out a particular course of conduct: see ACCC v INFO4PC at 28 [7]. There was nothing unclear or ambiguous about paragraph 13 of the Orders. Mr Spencer's obligation was to provide the documents in a form that could be accessed and read by the recipients. Mr Spencer did not comply with this requirement and his non-compliance was deliberate. 61 In oral submissions, counsel for Mr Spencer tendered an apology in similarly reserved and conditional terms. I consider that Mr Spencer has not shown any remorse for the fact that he wilfully disobeyed the Orders. Indeed, he has not acknowledged that he is in contempt of court. Through his counsel, Mr Spencer expressed his wish to 'rectify any remaining problems with his compliance with the orders.' In evidence, Mr Spencer added that he would 'rectify any and all points that the Court... says that I have not complied with in the orders.' I do not regard Mr Spencer's statement as one that affords any indication of regret, remorse or contrition about his contempt: it is merely an offer to do what Mr Spencer is in any event obliged to do under the Orders: see Australian Prudential Regulation Authority v Simiton (No 3) [2006] FCA 397 at [14] - [15] ; ACCC v INFO4PC at 57-58 [155]. 67 Costs can be awarded on an indemnity basis where it is warranted by the interests of justice. In many contempt cases, the court has concluded that justice requires that the respondent pay the applicant's costs on an indemnity basis: Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354 at 358; and ACCC v INFO4PC at 58 [160]-[162].