Australian Competition & Consumer Commission v Australian Business Reports Pty Ltd & Anor [1997] FCA 895

IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) AG 75 of 1996 ) DISTRICT REGISTRY ) ) GENERAL DIVISION )

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: AUSTRALIAN BUSINESS REPORTS PTY LIMITED (ACN 074 812 856)

First Respondent

GARY JOHN SOLAH

Second Respondent

JUDGE: FINN J PLACE: CANBERRA DATED: 27 AUGUST 1997

MINUTES OF ORDER

THE COURT DECLARES THAT:

1. The respondents are guilty of contempt by reason of their breach of the orders made by Finn J on 19 December 1996 in proceedings AG 75 of 1996. THE COURT ORDERS THAT: 2. The respondents pay the applicant's costs of and incidental to this application, to be taxed on an indemnity basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY ) AG 75 of 1996 ) DISTRICT REGISTRY ) ) GENERAL DIVISION )

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: AUSTRALIAN BUSINESS REPORTS PTY LIMITED (ACN 074 812 856)

First Respondent

GARY JOHN SOLAH

Second Respondent

JUDGE: FINN J PLACE: CANBERRA DATED: 27 AUGUST 1997

REASONS FOR JUDGMENT The applicant, the Australian Competition and Consumer Commission ("the ACCC") has moved for orders that the two respondents, Australian Business Reports Pty Ltd ("ABR") and Mr Solah, be found severally guilty of contempts of orders I made on 19 December 1996 in proceedings between the applicant and the respondents. That motion was heard on 1 May 1997. I reserved my decision at the time and, on 21 May, indicated to the parties that, as any determination of the motion would involve deciding matters in contest in the principal application, I would defer giving judgment on the motion until after judgment had been delivered in the application itself. The latter occurred on 20 August 1997. To avoid unnecessary duplication and because of the significant overlap of the motion with the application, the Reasons for Judgment of 20 August are to be regarded as incorporated by reference into these reasons. The ABR's business as from July 1996 has been the supply or promotion of a document entitled "Consumers Business Register" ("the Register") to companies and businesses in Australia. Mr Solah is the sole director of the ABR. In proceedings against the respondents initiated on 11 December 1996, the ACCC alleged that both respondents mailed letters and forms to businesses containing representations occasioning contraventions of s52 of the Trade Practices Act 1974 (Cth), that (inter alia) and I here paraphrase: (a) the ABR was a government office or was affiliated with government, whereas it was not; (b) the addressee was required by law to register with ABR for inclusion in a register of companies and businesses - the Register - prepared by ABR, whereas there was no such requirement; and (c) by entering its name in the Register, a business would be recognised by federal and state contractors, whereas the respondent did not have reasonable grounds for making that representation. Declaratory and injunctive relief was sought. On 19 December I made interlocutory orders in this matter the relevant terms of which, for present purposes, were: "1. Pending the hearing and determination of this application, or until further order, each of the first and second respondents, their servants or agents, in trade or commerce, by conduct which involves the use of postal services, be restrained from supplying or offering to supply or promoting the supply, to any person, of any register: (a) represented as provided by a government office or as affiliated with government, when such a register is not so provided or affiliated; (b) where registration for such register is represented as required by law, when there is no such requirement; (c) represented to be recognised by particular persons or classes of persons, when the first and second respondents did not have reasonable grounds for making that representation; (d) where it is represented that the business' suppliers were required by law to commission licensed suppliers, such licensing being conferred by entry of the business name in the Register, when there is no such requirement. 2. Pending the hearing and determination of this application, or until further order, the second respondent, his servants or agents, in trade or commerce, by conduct which involves the use of postal services, be restrained from supplying or offering to supply or promoting the supply, to any person, of any register: (a) represented as provided by a government office or as affiliated with government, when such a register is not so provided or affiliated; (b) represented as having been prepared by an organisation with a presence at particular offices where it does not; (c) where registration for such register is represented as required by law, when there is no such requirement; (d) represented to be recognised by particular persons or classes of persons, when the second respondent did not have reasonable grounds for making that representation; (e) where it is represented that the business' suppliers were required by law to commission licensed suppliers, such licensing being conferred by entry of the business name in the Register, when there is no such requirement." The Two Charges Before turning to the actual charges made against the respondents I should indicate that, notwithstanding submissions to the contrary made by the ACCC in reliance upon s140(2) of the Evidence Act 1995 (Cth), I intend in conformity with other decisions of this Court to apply the criminal standard of proof in this matter. In so doing I am content, because of its present appropriateness, to adopt the reasoning of Tamberlin J in Al Hayat Publishing Co Ltd v Ahmed Sokarno Eman Mohamed, unreported, 28 February 1997 both in relation to the standard of proof required and to "civil contempt" more generally: "The contempt alleged here is traditionally referred to as "civil" contempt as it arises from a failure to obey an order of the court made in civil proceedings. There is no submission that the contempt here is contumacious or involves any deliberate defiance of the Court's order. However, intent to disobey is not necessary. It is sufficient if the person or the corporation is aware of the order and intentionally does an act or omits to perform an act with the result that there is a breach of the order: Stancomb v Trowbridge UDC [1910] 2 Ch 190 at 194; Flamingo Park Pty Ltd v Dolly Creation Pty Ltd (1985) 5 FCR 169 at 183. Of course deliberate defiance or contumacious disregard of the order is relevant to the determination of an appropriate sanction. As the High Court observed in Witham v Holloway (1995) 183 CLR 525 at 530, the distinction between criminal and civil contempt is largely illusory. All proceedings for contempt must now realistically be seen as criminal in nature: Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 99 and Witham (supra) at 534. The usual outcome of successful contempt proceedings is punishment in one form or another whether it be in the form of an admonishment, a fine or imprisonment. For this reason the criminal standard of proof must be satisfied in both civil and criminal contempt proceedings. The application of the criminal standard of proof recognises the gravity associated with any charge of contempt. Such a charge is criminal in nature and because of this a charge of contempt should not be brought lightly or without proper cause."