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Queensland Judgments
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  • Unreported Judgment

Bruder Expeditions Pty Ltd v Leigh

 

[2019] QDC 271

DISTRICT COURT OF QUEENSLAND

CITATION:

Bruder Expeditions Pty Ltd v Leigh [2019] QDC 271

PARTIES:

BRUDER EXPEDITIONS PTY LTD

(applicant)

v

TRACY LEIGH

(respondent)

FILE NO/S:

2380/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

12 December 2019

DELIVERED AT:

Brisbane

HEARING DATES:

13 November and 12 December 2019

JUDGE:

Clare SC DCJ

ORDER:

  1. The respondent is found to have been in contempt of the order of Sheridan DCJ made on 1 November 2019.
  2. The respondent is to perform unpaid community service on the conditions set out in s 103 of the Penalties and Sentences Act 1992 and must report to the Probation and Parole office at Rockhampton by 12:00pm 13 December 2019
  3. The respondent is to pay the applicant’s costs of the application.

CATCHWORDS:

CIVIL PROCEEDINGS - CONTEMPT –where the respondent was found to have published injurious falsehoods about the applicant on a Facebook page– where the court issued an injunction to restrain the respondent from publishing same or similar statements –– where the respondent published further comments about the applicant – where the applicant sought an order that the respondent be punished for contempt

PROCEDURE – CIVIL PROCEEDINGS –CONTEMPT - whether the application was deficient – whether the charge was deficient – whether the rule against duplicity applies - whether particulars were deficient

CIVIL PROCEEDINGS - CONTEMPT – whether the terms of the order were not clear and unambiguous -whether the respondent knew of the terms of the injunction – whether the publication amounted to “substantially similar” -whether contempt was proved beyond reasonable doubt

POWER OF COURT TO PUNISH FOR CONTEMPT – where a need to punish and deter

District Court of Queensland Act 1967 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Australian Securities  and Investment Commission v 1Ist State Home Loans Pty Ltd  [2002] QSC 55

Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201

Athens v Randwick City Council (2005) 64 NSWLR 58

Australian Consolidated Press Ltd v Morgan ( 1965) 39 ALJR 32

Australian Securities and Investments Commission (ASIC) v Jorgensen [2008] QSC 91

Costello v Courtney [2001] 1 Qd R 481

Environmental Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204

Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 234 IR 59; [2013] VSC 275

Lade & Co Pty Ltd v Black [2006] 2 Qd R 531

MacGroarty v Attorney-General (Qld) (Clauson) (1989) 167 CLR 251; (1989) 86 ALR 513

O’Connor v Hough [2016] QSC 4

Rockhampton Regional Council v Dubois [2014] QPEC 13

Witham v Holloway (1995) 183 CLR 525

COUNSEL:

MD Martin QC for the applicants
SW Trewavas for the respondent

SOLICITORS:

Mills Oakley for the applicants

Australian Law Partners for the respondent

  1. [1]
    The applicant, Bruder Expeditions Pty Ltd (‘Bruder’), manufactures and sells caravans. The respondent, Ms Tracey Leigh (‘Ms Leigh’), is the administrator of a Facebook group page called ‘Lemon Caravans and RVs in Aus’. Last month a jury found she had published injurious falsehoods in four statements about Bruder on her site, and the learned trial judge issued a permanent injunction to restrain further publications of the same, or substantially the same, effect. Two days later there were fresh posts about Bruder.
  1. [2]
    This was an application under r 926 of the Uniform Civil Procedure Rules 1999 (Qld)(‘UCPR’) for an order that Ms Leigh be dealt with for contempt.  The contempt is said to be the breach of the order made by Her Honour Judge Sheridan on 1 November 2019.
  1. [3]
    I find that Ms Leigh acted in contempt of the injunction and make an order that she perform 200 hours of unpaid community service. These are my reasons.

The background

  1. [4]
    Bruder had commenced proceedings against a customer, Mr Coles, for damaging allegations he had published on his website. Ms Leigh used her Facebook page as a platform to republish Mr Coles’ allegations. She provided the link to the website and also posted a series of statements of her own, criticising Bruder and its conduct towards its customers. Bruder brought an application to restrain her. On 11 July 2019 Judge Sheridan issued an interlocutory injunction pending a trial for injurious falsehood. Ms Leigh complied with the interim order.
  1. [5]
    On 1 November 2019 a jury found Ms Leigh had published injurious falsehoods and thereby caused Bruder actual loss amounting to $375,000.

The injunction

  1. [6]
    On 1 November 2019, Judge Sheridan entered judgment for the applicant in the sum of $375,000. She further ordered in paragraph [2] that:

“The respondent be restrained by herself or her servants or agents from publishing, causing to be published, encouraging, requesting or enabling to be published by any means whatsoever any statements, comments or images with respect to the applicant and the products sold by it by any means whatsoever including but not limited to on a Facebook page entitled “Lemon Caravans & RV’s in Aus” to the same effect as the first, second, third and fourth statements referred to in the second further amended statement of claim filed on 28 October 2019 in these proceedings or matters substantially to the same effect as those matters.”

  1. [7]
    The injunction was to take effect immediately but, by virtue of paragraph [3], it was subject to amendment after written submissions the following week.
  1. [8]
    The “first statement” is identified through paragraphs [5], [9], [11] and [12] of the second further amended statement of claim which pleaded:
  1. The respondent approved and in so doing published a post made on the Lemon Facebook Group …which contained a hyperlink to the website as well as the words: “BRUDER”S EXP-6 OFF ROAD CAMPERVANS” (the website).

  1. The website contained statements that the applicant: -
  1. (a)
    produces off road caravans which are defective;
  1. (b)
    produces off road caravans which are poor quality;
  1. (c)
    produces off road caravans which are unsafe;
  1. (d)
    produces off road caravans which are overpriced and not good value for money; and
  1. (e)
    refuses to assist its customers.

  1. On 5 May 2019 the respondent published a comment on Lisa Desmond’s post which read as follows:-

“Lisa thank you for your kindness to your friends. I am hoping by showing this to 45000 members that Bruder might pick up their act.  Losing a sale would cost them a fortune.”

  1. By reason of the matters pleaded in paragraphs 5 and 11 herein the respondent stated:-
  1. (a)
    that the statements about the applicant’s off road caravans pleaded in paragraph 9 herein were correct
  1. (b)
    that the applicant needed to “pick up its act” with respect to defects in its off road caravans and customer service.

(the first statement).

  1. [9]
    The “second statement” was set out in paragraph [19] of the same pleading:-
  1. …the respondent edited the second statement such that it:
  1. (a)
    attached a copy of  (a letter from the applicant’s solicitor about the publication); and
  1. (b)
    stated the following:

“UPDATE THREE: INJURIOUS FALSEHOOD THREAT LETTER FROM BRUDER EXPEDITION PTY LTD

What are they demanding? An apology, removal of all reference to them in the group by 5pm today, including this post, and to be naughty again and dare expose the intimidatory practices and poor production quality of this company.

This culture of silencing is no better illustrated than by the letter from this company. See attached.  I have only posted the truth and my honest opinion based on proper material.  There is a clear public interest.  The imputations are a beat up because they are actually true in every regard.  Therefore they will fail in their attempt to prove injurious falsehood and spend a lot of money for nothing, which they could have used to comply with the ACL…(the third statement).

The alleged contempt

  1. [10]
    On 3 November 2019 two new posts appeared on the Facebook site under the name of Tracy Leigh.
  1. [11]
    The first post was in disagreement with something from “Brett”. Brett’s post is not in evidence, but the comment attributed to Ms Leigh included this:

“…you appear to be an apologist for them, and many other manufacturers…

It is a massive lie because, in conjunction with the very sexy marketing videos, it gave them so much credibility that they did not deserve because one element in the patent application, the weld point in the air bag attachment component, was weak and failed.

And this happened not once but TWICE.

AND THEY REDESIGNED THAT COMPONENT NOT ONCE BUT TWICE, AND WELL BEFORE THE WELD FAILURE IN CHARLIE COLES CARAVAN.

And to make matters even worse, in spite of knowing of the first and original weld failure in May 2018, they didn’t tell anyone.  They just quietly redesigned that component and put it into production.  Then, when owners that had the weak and poorly designed weld attachment brought their caravans in for servicing, it was very quietly rectified without telling them or anyone else.

And as a result, the same weld failure occurred in Charlie Coles’ caravan some nine months later, BECAUSE BRUDER PROTECTED THEIR BUSINESS REPUTATION OVER AND ABOVE THEIR CUSTOMER’S SAFETY.

  1. [12]
    The second post on 3 November 2019 was in response to another user’s attempt to correct Ms Leigh.

Jamie Stretton:

Tracy Leigh, my understanding is that what you call the truth is actually Mr Coles story which went untested.

Tracy Leigh:

Jamie as part of the discovery process I received over 500 documents from Bruder that showed Charlie Coles had told 100% truth. And so, so much more.

The submissions

  1. [13]
    The comments on the website were proved by affidavit.[1]  The affidavit was not challenged.  Bruder contended that both posts were in contempt of the court order, being “substantially to the same effect as” the first and third statements in the second amended statement of claim.
  1. [14]
    Ms Leigh did not offer any evidence. Her primary defence was that the order was ambiguous and the charge was bad in law for want of particularity. In the alternative, it was contended that the applicant had otherwise failed to prove all of the necessary elements for contempt.

The Law

  1. [15]
    S 129 of the District Court of Queensland Act 1967 (Qld) (‘District Court Act’) gives this court the same power to punish for a contempt of the District Court as a Supreme Court judge would have if it were a contempt of the Supreme Court.  The section also sets out the categories of contempt.  Relevantly, subsection (1) (a) provides that a person is in contempt of the District Court if, without lawful excuse, she fails to comply with an order of the court.  The terms of the order must be sufficiently clear for conduct to be in contempt of it.’[2] 
  1. [16]
    S 129 must be read with Chapter 20 of the UCPRR 904 refers to the need for knowledge of the order.  To be in contempt a person must at least have had prior knowledge of the terms of the order before she committed the act in breach.  As Keane JA noted in Lade & Co Pty Ltd v Black:[3]

‘There must, of course, be actual disobedience.  There cannot be disobedience if the alleged contemnor does not know of the order which he or she is alleged to have breached.”

  1. [17]
    I proceed on the basis of five essential elements.[4]  To prove the contempt, Bruder must prove the elements beyond reasonable doubt.[5]  The elements are that:
  1. (i)
    Judge Sheridan made an order;
  1. (ii)
    the terms of the order were capable of being understood;
  1. (iii)
    Ms Leigh had prior knowledge of the terms of the order;
  1. (iv)
    Ms Leigh breached the terms of the order; and
  1. (v)
    Ms Leigh had no lawful excuse for doing so.
  1. [18]
    The making of the order and the absence of any other lawful excuse were not in dispute. Mr Trewavas argued preliminary issues, namely that the order was unclear and the charge was deficient. In the alternative, he argued the court could not be satisfied that Ms Leigh knew of the order or its terms, or that she was the person responsible for posting the comments.
  1. [19]
    The procedure upon an application for punishment for contempt is set out in UCPR r 926. R 926 (1) provides that the applicant must file an application “specifying the alleged contempt”, the application and any affidavit material must be served on the respondent personally, and hearsay is inadmissible. Because the power to punish extends to imprisonment, there must be strict compliance with the rules.[6]

Ambiguity of the injunction?

  1. [20]
    Mr Trewavas argued the order was unclear. He created a table listing paragraphs in the second further amended statement as “secondary paragraphs” for the prohibited first, second, third and fourth statements. He submitted the table showed “a number of ways in which it can be breached, none of which are certain”.[7]  “(T)here are so many different possible combinations of what may constitute the various “Statements” as defined in the Order of 1 November 2019”[8]
  1. [21]
    In my view, the nature of the restraint was plain. The terms of the injunction expressly applied to the four statements described in the second amended statement of claim. The four statements were readily ascertainable from those pleadings. It is also appropriate to note the circumstances in which the order was made.[9]  The terms of the injunction had been settled by the trial counsel.  The four statements were the very subject of the four day trial.
  1. [22]
    There was no evidence that the order caused confusion. In fact, this post, made on 2 or 3 November 2019,[10] in Ms Leigh’s name, suggests she did understand the order:

“I am restricted right now from publishing anything in relation to the First to Fourth Publications in the Statement of Claim in the case of Bruder Expedition Pty Ltd v Tracy Leigh. This doesn’t include Bruder’s claim that they had a registered patent….More to come when the final injunction orders are settled next week and I know what I can and can’t expose…”[11]

Deficient charge?

  1. [23]
    The respondent’s written submissions contend the charge in the application was bad in law because it:
  1. did not specify the statutory basis for the contempt;
  1. did not isolate the exact part of the posts relied upon;
  1. did not specify which statement in the order it breached; and
  1. was duplicitous and purported to rely upon two different acts in the alternative, namely posted or caused to be posted.
  1. [24]
    Two cases were cited: MacGroarty v Attorney-General (Qld) (Clauson)[12] (‘MacGroarty’) and Australian Securities and Investments Commission (ASIC) v Jorgensen[13] (‘ASIC v Jorgensen).
  1. [25]
    MacGroarty’s case considered a charge made by a trial judge in the midst of a heated exchange with counsel.  The judge had identified the contempt as: “I said: “Will you stop speaking while I am speaking?”  You said you would not.”[14]  The High Court indicated those particulars were not enough to identify the type of contempt offence, whether a wilful insult, wilful interruption or misbehaviour within the various categories in s 105 of the District Court Act (the predecessor of the present s 129).  The court overturned the conviction on the basis that the particular offence had not been identified, and therefore Mr MacGroarty had not been properly charged and had not been given a proper opportunity to defend himself.  The High Court said this:

“when what is involved is a charge of common law contempt, it may, depending on the circumstances, not be necessary to formulate the charge in a series of specific allegations, provided that the “gist of the accusation” is made clear to the person charged…Where, however, the charge is of a particular statutory offence, the charge will, in the absence of a clear legislative intent to the contrary, necessarily be inadequate if it fails to identify, either expressly or by necessary implication, the particular statutory offence with which the accused stands charged. That requirement is not a mere matter of form or procedure. It is fundamental for the reason that the specific statutory offence must be identified if the person charged is to be informed of the elements of what is alleged against him and afforded an adequate opportunity of answering the charge.”[15] (emphasis added)

  1. [26]
    In addition, there is now UCPR r 926, which expressly requires that the application specify the alleged contempt. It follows that the charge for contempt must be clear enough. The specific contempt offence must be identified in the charge, at least by necessary implication. A respondent needs to know “with sufficient particularity to enable him to defend himself, what exactly he is said to have done …which constitutes a contempt of court.”[16] 
  1. [27]
    The present application was:

“That the respondent be punished for contempt for breaching paragraph 2 of the order Sheridan DCJ made on 1 November 2019 by posting or causing to be posted the following words on the Facebook page entitled “Lemon Caravans & RV’s in Aus” on 3 November 2019:..”

The application went on to quote the passages in the posts set out in paragraphs [10] and [11] of this judgment.

  1. [28]
    Mr Trewavas argued the words of the application were inadequate because they did not mention s 129 of the District Court Act or the UCPR.[17]  It seems to me, however, that the charge was sufficiently specified.  The offence, contempt for breach of a court order, was distinctly stated. Unlike MacGroarty, there was no scope for confusion about the category of contempt alleged.[18]  The application also particularised the contempt.  Mr Trewavas contended the application was “devoid of particulars”, but it actually particularised a discrete episode of conduct.  It was very specific.  It nominated “posting or causing to be posted”, quoted the exact words, the date, and the internet site.  The contravened order was specified as the injunction in paragraph [2] of the orders made on 1 November 2019.  There can be no doubt, therefore, that this application alleged a contravention of paragraph 2 by publishing on the specified occasion.  It was clearly distinguishable from ASIC v Jorgensen ,[19] where the circumstances were such that the respondent could not “consider sensibly which acts alleged against him (were) alleged to contravene which order without making uncertain assumptions or drawing inferences themselves unclear.”[20]
  1. [29]
    On the first day of the hearing, Mr Martin QC further narrowed the ambit of the present application by reference to the first and third statements. Although Ms Leigh was given ample opportunity to respond, her defence did not extend to the substance of the application.
  1. [30]
    The requirement under r 926(1) to specify the contempt in the application has to be viewed sensibly.[21]  The level of specificity needed must depend upon the individual circumstances.  The respondent was entitled to know the case against her, but there is a distinction between the charge and the provision of particulars.  Particulars may supplement the application.  There could be no uncertainty about the nature of the charge or the particulars in this case.  The rules should not be applied with unnecessary technicality.  Their purpose is to “facilitate the just and expeditious resolution of the real issues ... at a minimum of expense”[22] and to avoid “undue delay, expense and technicality”.[23]  What is important is that Ms Leigh and her lawyers understood the charge brought against her.[24] 
  1. [31]
    Mr Trewavas submitted the application was duplicitous on two bases: (i) it did not on its face identify which of the four statements had been repeated; and (ii) it joined two acts in the alternative (“posting or causing to be posted”). The argument misconceives the rule against duplicity. The rule does not apply to a proceeding for contempt.[25]  Rather it prohibits the inclusion of multiple criminal offences in a single charge, and charges for unparticularised acts[26].  In any event, a charge expressed in the alternative would not be bad for duplicity.  Indeed, such approach is common in criminal prosecutions on indictments when the evidence indicates the defendant must have acted in one of a number of ways, any one of which would constitute an offence. 

Did Ms Leigh “post, or cause to be posted” the comments?

  1. [32]
    The evidence of Ms Leigh’s responsibility for the comments posted on 3 November 2019 was circumstantial but compelling. Like the earlier four statements she had made, the two posts were on the Lemon Caravan Facebook Group page. The pleadings had previously established that as the administrator of that site, Ms Leigh had the power to approve, deny or remove posts, as well as publish her own. There is no evidence to suggest any change to Ms Leigh’s level of control. Even more specifically, the fresh posts were made under her name, and very quickly after the verdict against her. The content was consistent with information linked with Ms Leigh and her previous attitude towards Bruder. It included assertions about disclosure documents Ms Leigh had received in the course of the action. It indicated familiarity with the pleadings and the trial. The comments expressed the same views Ms Leigh had previously expressed about Bruder. There was no evidence to suggest that anyone other than Ms Leigh used her name to post on the Facebook page. There was no evidence to contradict a very strong inference that Ms Leigh was responsible for publishing the posts of 3 November 2019. It is the only reasonable conclusion open.

Did Ms Leigh know of the injunction?

  1. [33]
    Ms Leigh could not be in contempt unless she had prior knowledge of the terms of the injunction. She was present for the jury’s verdict but had left the courtroom before Judge Sheridan made her orders. It is reasonable to expect that once the order was made, Ms Leigh’s lawyers, in accordance with their duties, would have done what they reasonably could to inform Ms Leigh of the restraint upon her as soon as possible. The order was made on Friday afternoon. On the Saturday or Sunday, another post appeared on the same Facebook page in Ms Leigh’s name, again purporting to be from Ms Leigh. Again, the only reasonable conclusion is that it was from Ms Leigh. It confirmed Ms Leigh knew of the new injunction. It read:

“I am restricted right now from publishing anything in relation to the First to Fourth publications in the Statement of Claim in the case of Bruder Expedition Pt Ltd v Tracy Leigh.   That doesn’t include Bruders’ claim that they had a registered patent for the suspension and the lift mechanism of the roof…

What else was published in court? More to come when the final injunction orders are settled next week and I know what I can and can't expose about the trial, what was put into evidence and what I really know about the Bruder group of companies.”

  1. [34]
    The first paragraph’s reference to a current restriction in terms of the “four publications” in Bruder’s pleadings could only mean the injunction issued on 1 November 2019, because the interim injunction had been in broad and general terms.[27]   The second paragraph of the post obviously raised the second part of Judge Sheridan’s order, which had allowed for further submissions and amendment the following week.
  1. [35]
    The evidence is unclear as to whether this post was before or after the alleged contempt, but it was certainly during the same weekend. It showed Ms Leigh knew the terms of the order by Sunday 3 November 2019, which points to advice from her trial lawyers, which in turn suggests she had been told on the Friday (1 November 2019). In the absence of contrary evidence from the defence, the irresistible inference was that Ms Leigh knew of the order before she had posted anything that weekend.

Did the posts contravene the injunction?

  1. [36]
    Ms Leigh was restrained from publishing or enabling the publishing of any comments “substantially to the same effect” as the statements set out in the second amended statement of claim. The applicant contended that the publication in paragraph (a) of the application, was substantially the same as the first and third statements, and that the second post was also substantially to the same effect as matters in the first statement.
  1. [37]
    The publication in paragraph (a) of the application alleged an ongoing defective weld design in Bruder caravans that jeopardised safety and which the company had concealed from its customers. It is therefore in the same vein as the first statement as set out in paragraphs [9] and [12] of the pleadings[28] which alleged Bruder had produced defective and unsafe caravans, with poor follow up service for customers.  I find the matters in the first comment set out in the application to be substantially to the same effect as the first statement the subject of the injunction.  I find beyond reasonable doubt that Ms Leigh thereby contravened the injunction made on 1 November 2019
  1. [38]
    The second set of comments in paragraph (b) of the application are not self-contained. When read with the earlier posts, they appear to affirm comments in paragraph (a). Because paragraph (b) was posted so close in time to paragraph (a) and appears to be the same conversation, with the same audience, it adds little to the contempt in paragraph (a).

Punishment

  1. [39]
    Section 129(2) confers upon the District Court the same powers to punish for contempt as has the Supreme Court. By UCPR r 930(2) the court has a discretion to make an order that is contained in the Penalties and Sentences Act 1992 (Qld). 
  1. [40]
    Ms Leigh acted to republish allegations after a jury had found them to be false and substantially injurious, and after a judge had ordered her to stop. She did so very soon after the order had been made. It was a flagrant breach.
  1. [41]
    Upon conviction, Mr Trewavas read an affidavit from Ms Leigh. In it Ms Leigh complained that instead of asking her to remove her offending posts, Bruder’s solicitors flagged their intention to apply for her imprisonment for contempt. She has various mental health conditions. She swore that the shock of the verdict had “already extremely compromised” her mental health and that on receipt of the letter from Mills Oakley on 4 November 2019 her “mental health rapidly deteriorated further and (she) became suicidal”. She consulted doctors the next afternoon. Her general practitioner referred her to the hospital. According to the hospital records she was crying continuously and reported “suicidal ideation”. She was assessed and released. She removed the contempt that same night.
  1. [42]
    There is no report from Ms Leigh’s general practitioner, only the hospital records for 5 November 2019. They note Ms Leigh’s pride in her Facebook page and its extensive reach (50 000 followers). She told hospital staff other caravan companies had tried, but failed, to stop her; and that Bruder’s win had ruined her life. She also said that on the night of the verdict her lawyers had advised her to remove the Facebook group. She did remove it, but after drinking on the weekend she reopened it and posted again. She told the hospital about being threatened with imprisonment.
  1. [43]
    The contempt was a flagrant defiance. It appears Ms Leigh targeted Bruder as part of a personal crusade. There was no suggestion of financial gain. One may infer an intention to protect consumers, but also a sense of self-importance and self-justification. The contempt was committed just two days after the judge had ordered Ms Leigh to stop. Intoxication cannot be an excuse. Nor can it explain Ms Leigh’s contempt. Her words on 3 November were reasoned and articulate, clear, emphatic and deliberate. Among her posts that day was an essay setting out her commitment to free speech, the rights of the consumer and the need to stand up to wealthy companies. It concluded: “I took on the fight for all of us because I believed I had told the absolute truth…(A)s a result of seeing the disclosure documents I am even more convinced that I have told the absolute truth…And now I have recovered from the shock of the verdict, I am here to keep fighting for our collective consumer rights and for real justice.”[29] 
  1. [44]
    Whatever Ms Leigh’s personal opinion, Bruder’s rights had been vindicated by a jury. A judge had only just made another order for their protection. Ms Leigh’s affidavit suggests she still has no insight. She has shown no remorse. Her reply to the solicitor’s email of 4 November was: “Needless to say, I will vigorously defend myself”.[30]  She did remove the post the next day, but that was pragmatism.  She put Bruder to strict proof on the application.  She sobbed through the hearing.  It appeared to be more self-pity rather than contrition. 
  1. [45]
    Ms Leigh is a disability pensioner. She has little by way of assets. She will not have enough to satisfy the judgment in the trial. Evidently the judgment sum of $ 375,000 did not sufficiently deter her. Punishment and personal deterrence are required.
  1. [46]
    Ms Leigh does seem frightened about the prospect of prison. A suspended term of imprisonment would probably be an effective deterrent. Imprisonment however must be the sentence of last resort[31].  The parties cited cases where fines were imposed, but Ms Leigh does not have the capacity  to pay a significant fine.
  1. [47]
    What Ms Leigh does have is free time. Unpaid community service could punish and deter in a meaningful way. When I first asked Ms Leigh about it, she said : “I have no choice”. Of course, she did have a choice to make. Ultimately she agreed to the order. Neither she nor her counsel indicated incapacity for community service work. She was ordered to perform 200 hours of community service on the conditions set out in s 103 of the Penalties and Sentences Act 1992.
  1. [48]
    The issue of costs is almost certainly academic, but the order was made against Ms Leigh.

Conclusion:

  1. [49]
    The order was as follows:
  1. The respondent is found to have been in contempt of the order of Sheridan DCJ made on 1 November 2019.
  1. The respondent is to perform unpaid community service on the conditions set out in s 103 of the Penalties and Sentences Act 1992 and must report to the Probation and Parole office at Rockhampton by 12:00 pm 13 December 2019.
  1. The respondent is to pay the applicants costs of the application.

Footnotes

[1]Affidavit of Craig John Bevan sworn 4 November 2019.

[2]Australian Consolidated Press Ltd v Morgan (1965) 39 ALJR 32; Australian Securities and Investment Commission v 1st State Home Loans Pty Ltd [2002] QSC 55.

[3] [2006] 2 Qd R 531 per Keane JA at [63].

[4]See District Court of Queensland Act 1967 (Qld) s 129; Lade & Co Pty Ltd v Black [2006] 2 Qd R 531; [2006] QCA 294, [65] Keane JA, (Jones J agreeing); Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, [31]; Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 234 IR 59; [2013] VSC 275, [8].

[5]Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 per Keane JA at [63]; Witham v Holloway (1995) 183 CLR 525, 534.

[6]Costello v Courtney [2001] 1 Qd R 481 at para [9].

[7]Written Submissions on Behalf of the Respondent – Procedural Issues, [7].

[8]Ibid, [10].

[9]Athens v Randwick City Council (2005) 64 NSWLR 58, par [36], [137], [140].

[10]See Affidavit of Craig John Bevan sworn 4 November 2019, par [6] cf Affidavit of Adrian Hayley Fraser sworn 12 November 2019, exhibit AHF1.

[11]Affidavit of Craig John Bevan sworn 4 November 2019.

[12](1989) 167 CLR 251; (1989) 86 ALR 513.

[13] [2008] QSC 91.

[14]MacGroarty v Attorney-General (Qld) (Clauson) (1989) 167 CLR 251; (1989) 86 ALR 513, 514.

[15]Ibid, 516.

[16]See e.g. Australian Securities and Investments Commission (ASIC) v Jorgensen [2008] QSC 91 at [16].

[17]Written Submissions on Behalf of the Respondent – Procedural Issues [8 - 12].

[18]See MacGroarty v Attorney-General (Qld) (Clauson) (1989) 167 CLR 251; (1989) 86 ALR 513 517, where it was unclear whether the charge alleged contempt by wilful insult, wilful interruption, or misbehaviour, within s 105(1)(a), (b) or (c).

[19] [2008] QSC 91.

[20]Australian Securities and Investments Commission (ASIC) v Jorgensen [2008] QSC 91 at [17]. 

[21]O’Connor v Hough [2016] QSC 4 at [36] (Burns J).

[22]Uniform Civil Procedure Rules 1999 (Qld) r 5(1).

[23]Ibid r 5(2).

[24]O’Connor v Hough [2016] QSC 4, [36] (Burns J).

[25]O’Connor v Hough [2016] QSC 4, [27] to [29]. The respondent cited the New South Wales case of Environmental Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204,[31] to [53] where the New South Wales environmental protection authority sought to prosecute on one charge, but did not particularise its case beyond “22 lever arch files of evidence” and “254 paragraphs” in a draft statement of facts.  The court referred to the rule against duplicity that applies to charges in an indictment.  This is not a charge on an indictment.   

[26]to prevent the risk of another prosecution for the same offence.

[27]Obviously the posts would have contravened the interim injunction had it still been in place.

[28]See par [8] of this judgment.

[29]Affidavit of Craig John Bevan sworn 4 November 2019 par [8].

[30]Affidavit of Adrienne Hayley Fraser, AHF4.

[31]Penalties and Sentences Act 1992, s 9(2) (a) (i)

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Editorial Notes

  • Published Case Name:

    Bruder Expeditions Pty Ltd v Leigh

  • Shortened Case Name:

    Bruder Expeditions Pty Ltd v Leigh

  • MNC:

    [2019] QDC 271

  • Court:

    QDC

  • Judge(s):

    Clare SC DCJ

  • Date:

    12 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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