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  • Unreported Judgment

Fitness First Australia Pty Ltd v McNicol

 

[2013] QSC 212

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Fitness First Australia Pty Ltd v McNicol [2013] QSC 212

PARTIES:

FITNESS FIRST AUSTRALIA PTY LIMITED
(applicant)
v
DEAN McNICOL
(respondent)

FILE NO:

BS4895 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application for punishment for contempt

DELIVERED ON:

20 August 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

30-31 July 2013

JUDGE:

Mullins J

ORDER:

It is declared that Dean McNicol committed contempt by failing to comply with the order of Philip McMurdo J made on 2 October 2012 in this proceeding, as particularised in charges 5, 8, 9, 10 and 17 of the further amended application filed on 22 July 2013.

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT - WHAT CONSTITUTES – DISOBEDIENCE OF ORDERS OF COURT – INJUNCTIONS – where the applicant and the respondent settled their disputes by entering into a settlement deed – where the respondent breached the settlement deed – where the applicant obtained a permanent injunction against the respondent to enforce the settlement deed – where the injunction restrains the respondent from engaging in specified conduct – whether conduct engaged in by the respondent was in breach of the injunction

Uniform Civil Procedure Rules 1999, r 661, r 665, r 904, r 926

Bakir v Doueihi [2002] QSC 19, considered
Costello v Courtney [2001] 1 Qd R 481, considered
Fitness First Australia Pty Ltd v McNicol [2012] QSC 296, related
Lade & Co Pty Ltd v Black [2006] 2 Qd R 531, considered

COUNSEL:

D de Jersey for the applicant
The respondent appeared for himself

SOLICITORS:

Minter Ellison – Gold Coast for the applicant

  1. On 2 October 2012 Philip McMurdo J (McMurdo J) delivered reasons for judgment in this proceeding (the reasons) in respect of the applicant’s application for a permanent injunction to restrain the respondent from breaching the deed of settlement dated 29 March 2012 (the settlement deed): Fitness First Australia Pty Ltd v McNicol [2012] QSC 296.  McMurdo J made the order set out on the first page of the reasons:

“The respondent is permanently restrained from:

(a)attending any premises conducted as a Fitness First Health Club or similar establishment, except with the written consent of the applicant;

(b)making any publication which disparages the applicant in respect of any conduct of the applicant which was the subject of the dispute between the parties which was settled by the deed executed by them and dated 29 March 2012 or in respect of the performance or otherwise of the terms of that settlement;

(c)writing, emailing, calling, texting or sending any other communication to any staff member or customer of a Fitness First Health Club, as to the dispute which was settled by that deed or as to that settlement, except to communicate the contents or effect of the letter signed by the parties on 29 March 2012.” 

  1. The respondent had appeared for himself in the injunction application and was in court to receive the judgment from McMurdo J and acknowledges on that occasion he received a copy of the reasons that incorporated the terms of the injunction made by McMurdo J. The respondent accepts that he was aware of the terms of the injunction from 2 October 2012.
  1. The hearing on 30 and 31 July 2013 was held in respect of the applicant’s further amended application filed on 22 July 2013 (the final application) for an order that the respondent be punished for contempt by causing the order made on 2 October 2012 “to be thwarted on each of the occasions specified” in the 17 charges set out in the final application.
  1. The respondent appeared for himself to defend the charges.

Procedural matters

  1. Numerous procedural irregularities were identified during the contempt hearing.
  1. Although there was no doubt that the respondent was informed of the terms of the injunction on 2 October 2012, as a result of his presence in court when he received a copy of the reasons, the order taken out by the applicant’s solicitors is dated 25 October 2012. This had the potential to have some relevance as charges 1 to 6 concern events between 12 and 15 October 2012.
  1. Under r 661 of the Uniform Civil Procedure Rules 1999 where a judge makes an order on a particular date and the terms of that order are endorsed on the file, a party’s solicitor can prepare a document embodying the order and the date the order was made and, if it is accurate, it will be signed by the registrar and filed in the court as an order of the court.  If this process is followed, the date of the order should match the date when it was first pronounced.
  1. It is usual before a party attempts to enforce a non-money order by contempt proceedings for the order to be personally served on the person against whom the order was made: r 904(1) of the UCPR.  The applicant is able to rely on r 904(2) to proceed with the application for contempt without personal service of the order made on 2 October 2012, as the respondent was present when the order was made. 
  1. After the applicant’s solicitors had filed the first version of the application for punishment for contempt on 15 October 2012 in respect of seven charges, they set about procuring the formal order embodying the injunction and the notice under r 665(3). That formal order showed the order as having being made on 25 October 2012. This results in the applicant seeking punishment for contempt of an order of 2 October 2012, when the formal order on the file is dated 25 October 2012.
  1. A second version of the application for punishment for contempt was filed on 25 October 2012 in which the charges relating to the same conduct identified in the first application were reformulated and reduced to six charges.
  1. On 25 October 2012 I made an order dispensing with personal service on the respondent of the amended application filed on 25 October 2012 and permitting service of the amended application and supporting affidavits on the respondent by placing them in the mailbox for the respondent’s unit and by emailing them to the respondent’s email address. Mr Reading, a law clerk employed by the applicant’s solicitors, attempted to deliver the amended application and supporting affidavits and a copy of the order of McMurdo J dated 25 October 2012 in accordance with the substituted service order, but was unable to do so as the mailbag that contained all the documents was too large for the respondent’s mailbox. The mailbag was left on the front doorstep of the respondent’s unit. He also put an extra copy of the amended application, the order of McMurdo J and the substituted service order in the respondent’s mailbox. The documents that were in the mailbag were washed up at an address about a kilometre from the respondent’s address and found by a person who notified Mr Reading on 5 November 2012 of what he had found.
  1. Mr Reading deposes to attending the bail application hearing relating to the respondent at the Southport Court on 6 November 2012 and serving all the documents that he had previously attempted to serve on the respondent by handing them to the respondent at about 10.50am as he was making his way towards the exit of the Southport Court.  The respondent denies that occurred and relies on a lack of evidence to support Mr Reading’s account.  Despite the respondent’s denial, I am satisfied that Mr Reading’s affidavit of service is sufficient evidence to prove service on 6 November 2012.   The respondent ultimately did not cross-examine Mr Reading in any detail on the service of documents on 6 November 2012. 
  1. The respondent filed an affidavit on 15 January 2013 (the first affidavit) comprising 126 paragraphs in response to the contempt application that refers to some of the applicant’s affidavits that were served on 6 November 2012.
  1. On 24 January 2013 the applicant filed the application for leave pursuant to r 377 of the UCPR to file the further amended application which was attached to the application and in the form of the final application.  That application for leave was not heard until 4 April 2013 by Boddice J.  The respondent attended by video link.  On that day leave was granted for the applicant to file and serve the further amended application attached to the application for leave filed 24 January 2013.  A timetable was also set for the filing and serving of further material by the parties commencing with the respondent being required to file and serve any further material by 14 June 2013.  The contempt application was listed for hearing on 30 and 31 July 2013.
  1. Although the order that was made on 4 April 2013 did not specify the time by which the further amended application had to be filed and served by the applicant, it was implicit in the timetable incorporated in the order and from the nature of the application that the filing and service of the final application would be done in a timely way. This is particularly so, when r 926(3) of the UCPR requires the application for punishment of contempt and any affidavit in support to be served on the respondent personally.  Applegarth J in paragraph 10 of the orders made on 10 December 2012 in connection with this contempt proceeding had set up a special regime for service on the respondent, but that order was vacated by Atkinson J on 4 February 2013.  In any case, Applegarth J’s order did not contemplate service of a further amended application. 
  1. There was no explanation offered by the applicant’s solicitors during the hearing for their failure to implement the leave that was granted on 4 April 2013 at a time consistent with the timetable provided for by the directions of Boddice J.
  1. According to the affidavit of Mr Williams, a law clerk employed by the applicant’s solicitors, which was filed by leave on 30 July 2013, the applicant’s solicitors sent a copy of the final application (before it was filed) by email to the respondent on 22 July 2013 and also delivered it in that state to the respondent on 23 July 2013. After the applicant’s solicitors had received from the registry a sealed copy of the final application, a copy of it was then sent by email and post to the respondent on 24 July 2013. There is no issue that the respondent eventually received a copy of the final application sealed by the court, but it was not personally served.
  1. During the hearing on 30 and 31 July 2013 the respondent made a number of complaints (some of which were valid) about the failure of the applicant’s solicitors to comply with orders and directions made by the court for the filing and serving of documents on the respondent and failure to comply with the UCPR.  The respondent expressed frustration at having to respond to the applicant’s application for contempt alleging failure against him to comply with the order of 2 October 2012 when, in the process of pursuing that application, the applicant’s solicitors were not assiduous about complying with the orders of the court and the UCPR
  1. There is a fundamental difference in the nature of the injunction made against the respondent on 2 October 2013 to enforce his contractual obligations under the settlement deed and the nature of directions made by the court in setting a timetable for steps to bring the matter to a hearing and rules of procedure where non-compliance may be excused under the UCPR or the inherent jurisdiction of the court.  The respondent’s frustration reflects his lack of understanding of this fundamental difference.
  1. In the circumstances of this matter, where the respondent had been on notice of the terms of the final application from at least the hearing before Boddice J on 4 April 2013 (if not earlier) and prepared his affidavits and submissions to meet the 17 charges in the final application, the applicant should be permitted to proceed with the final application, notwithstanding its failures to comply with the requirement to serve personally the final application: cf Costello v Courtney [2001] 1 Qd R 481 at [9] and [12].
  1. Both parties have failed to comply in some respects with r 926(4) of the UCPR which requires that an affidavit in support of or opposing the contempt application must not contain evidence which the person making it could not give if giving evidence orally.  Many parts of the first affidavit and the respondent’s affidavit filed on 23 May 2013 comprising 297 paragraphs (the second affidavit) are speculative, argumentative and irrelevant.  The respondent’s affidavits reflect an approach of disclosing all his grievances in respect of how he had been treated by the applicant, the Australian Federal Police, the Queensland Police Service and the applicant’s solicitors in a way that distracted him from the only issue that this contempt application is concerned with which is whether the applicant can prove that the respondent breached the order made on 2 October 2012, as particularised in the charges.  Mr de Jersey of counsel for the applicant did not seek to object to any part of these affidavits.  I could understand that approach in the interests of keeping the length of the contempt hearing under control.  I have endeavoured to confine my consideration to relevant evidence from both parties.                    

Thereasons

  1. The reasons provide the context for the injunction which may assist in its interpretation. The circumstances that resulted in the dispute and the settlement of that dispute are set out in [2] to [7] of the reasons:

[2]One of the clubs is at Robina on the Gold Coast. The respondent became a member there last December. He is a self-employed fitness instructor. On 21 February 2012, the applicant saw fit to terminate his membership, upon the basis of what it said was his improper behaviour towards some of the staff employed at Robina. He denied (and continues to deny) that conduct. A dispute thereby arose as to the validity of the termination of his membership. The respondent went to the Robina premises and protested that termination.

[3]The parties agreed to settle that dispute, by documents which they signed on 29 March 2012. The termination of the membership was confirmed by that agreement. The respondent received a payment of $1,500 together with some gymnasium equipment for his use in his business. And he promised not to engage in any ‘conduct’ as widely defined in the deed of settlement. I will discuss the terms of that deed, but in summary, the respondent undertook not to say or write anything to anyone about the applicant, the Robina premises or any other premises within the applicant’s network and not to contact any staff member, instructor, member or any other person associated with those places. There was no limitation on the duration of that restraint.

[4]The applicant’s case is that the respondent has breached and threatens to breach those provisions of the deed and that it should have a permanent injunction in the same extensive terms. The respondent says that he is relieved from performance of the deed, by the applicant’s own breaches of it.

[5]The parties signed two documents on 29 March. In addition to the deed of settlement, they signed a one page document, addressed to ‘Members and Staff Fitness First Robina’, which was described by the applicant’s solicitors, when sending it to the respondent, as a letter of acknowledgement. The respondent says that this document forms part of the contract made by the parties on that day. That is disputed by the applicant. In order to determine the effect of this letter of acknowledgement, it is necessary to say something of the preceding events.

[6]On 1 March, the applicant’s solicitors wrote to the respondent, complaining that the respondent had been distributing ‘flyers’ in an attempt to cause the applicant damage, had been harassing patrons in or around the Robina premises and had emailed employees of the applicant (or perhaps employees of the Robina business) threatening to continue his campaign to cause the applicant damage. The letter called upon the respondent to discontinue that conduct immediately. It also informed him that the applicant intended to display a certain document at the Robina premises and to distribute it to ‘employees, patrons and individuals affected by your continuing conduct’.

[7]The letter asked for written confirmation from the respondent that he would meet the requirements in that letter by 6 March. When he did not provide that confirmation, the applicant then displayed its document at the Robina premises, as it had foreshadowed in the letter. The notice was headed: ‘Attention all patrons information notice’. It contained a photograph of the respondent and the balance of the page consisted of text. It began with the statement that the respondent had been distributing ‘negative flyers regarding Fitness First’s action of terminating his membership’. It then contained a number of statements under the heading ‘Background’, much of which was defamatory. One was the statement that there had been numerous complaints about the respondent’s conduct, both from employees and patrons. It was said that the respondent’s membership was immediately terminated because of this misconduct, although that was not particularised. But it also made other assertions, defamatory of the respondent, which had little connection with the merits of the dispute as to his membership. The document sought to link those matters to his conduct at Robina by the assertions that the respondent had ‘a history of difficulties of this nature’ and that the respondent had ‘a Restraining Order made against him under the Criminal Code’ (whatever that may mean). It concluded with the statement that the applicant had had no choice but to terminate the respondent’s membership because his conduct and behaviour whilst a member had reduced the ‘level of safety and comfort’ of its employees and patrons. It is unnecessary to determine the correctness of any of these assertions and it would not be possible to do so fairly upon the evidence here. What is important is that this document was calculated to discredit the respondent, in order to counter his campaign against the applicant. It can be seen then that the settlement was reached in circumstances where each side had made highly disparaging remarks about the other, specifically directed to an audience comprising the staff and members at the Robina premises.”

  1. Many of the terms of the settlement deed are set out in the reasons. At [10] of the reasons, the recital of the settlement deed is set out that referred to the fact that between 10 February and 16 March 2012 the respondent engaged in the “Conduct” in respect of the applicant’s Robina premises with a view to persuading the applicant to reinstate his membership application. There is then a reference to another recital that in the interests of the complete cessation of the Conduct and the respondent being able to maintain his fitness regime outside of the applicant’s gyms, the parties have agreed to settle their dispute on the terms of the settlement deed “without any admission of liability by either Party.” The definition of “Conduct” set out in clause 1(k) of the settlement deed is then set out in [11] of the reasons. It is noted at [12] of the reasons that by clause 2.1 of the settlement deed, the applicant agreed to provide the respondent with certain equipment upon the basis that the respondent did not at any time engage in the Conduct and that clause 8 (incorrectly referred to as clause 7) of the settlement deed was strictly complied with. In [13] of the reasons reference is made to clause 2.2 of the settlement deed whereby the applicant agreed to pay the respondent $1,500 and to clause 2.3 whereby the respondent agreed that he would cease, desist and refrain from engaging in the Conduct then or in the future. Clause 3 of the settlement deed is set out in [14] which contains mutual non-disparagement covenants. Clause 8 of the settlement deed under the heading “Confidentiality” is set out in full in [16] of the reasons.
  1. The letter of acknowledgment is set out in full in [18] of the reasons:

To Members and Staff

Fitness First Robina

 

As you may be aware, a dispute had arisen between Fitness First Robina and Mr Dean McNicol.

 

After meetings and discussion between the parties, it is acknowledged by both Fitness First Robina and Mr McNicol that there were misconceptions, miscommunication and misunderstandings by various persons which lead to the dispute.

 

Fortunately, the parties have now met and resolved the dispute and their differences.

 

The matter is now at an end – fully and finally resolved – and both parties have agreed that the matter should now be put behind them so that both parties can move on.

 

Mr McNicol will no longer be attending Fitness First Robina.

 

There will be no further comment on the matter and all matters relating to the dispute are confidential.”

  1. The first question which McMurdo J had to determine on the applicant’s application for a permanent injunction in terms of the obligations that the respondent assumed under the settlement deed was the status of the letter of acknowledgment to which there was no reference in the settlement deed and where clause 11 of the settlement deed was an entire agreement clause: [17] and [19] of the reasons.
  1. McMurdo J concluded at [26] of the reasons that the applicant through its solicitor induced a belief in the respondent that, notwithstanding the settlement deed, the respondent could publish the letter of acknowledgment to any staff or members. McMurdo J identified at [27] of the reasons the provisions of the settlement deed that were inconsistent with what the applicant’s solicitor had induced the respondent to believe about the use he could make of the letter of acknowledgment. This affected the relief that could be granted to the applicant in that it had to be fashioned in a way that was consistent with the respondent’s belief induced by the applicant: at [28] of the reasons.
  1. McMurdo J found (at [30] of the reasons) that the letter of acknowledgment was not distributed by the applicant to staff and members of the Robina club. McMurdo J noted (at [31] of the reasons) that the applicant performed its obligations under the settlement deed of paying the settlement sum of $1,500 and supplying the equipment and, although the applicant was late in supplying the equipment, it was done before the respondent could elect not to be bound by the settlement deed. McMurdo J found that the respondent had failed to prove any breach of the settlement deed on the part of the applicant that excused the respondent from performance of the deed: at [33] of the reasons.
  1. The nature of the breaches of the settlement deed that McMurdo J found had been committed by the respondent were approaching an employee at a shopping centre seeking to discuss with her the termination of his membership and the dispute, sending emails to 17 of the applicant’s clubs which disparaged the applicant and disputed the validity of the termination of his membership, sending 18 emails to media outlets which were to the same effect, sending another 16 emails to fitness centres which were to the same effect, distributing leaflets outside the Robina premises and speaking to members about the dispute and the termination: at [35] to [37] of the reasons. McMurdo J concluded (at [38] of the reasons) that if there were no injunction, the respondent’s conduct would continue and be likely to cause damage to the applicant’s reputation and its business and stated:

[39]The applicant seeks a restraint in terms which largely replicate those of cl 1(k), cl 2.3, cl 3(a) and cl 8 of the deed. I have concluded already that the terms of an injunction should be such as to prevent the applicant from taking advantage of the respondent’s mistake about the letter of acknowledgment. That means that he ought to be permitted to disclose the contents or the substance of that letter. He ought to be free to say that the dispute as to the termination of his membership did arise but that it was settled, with each side acknowledging that it was the result of misunderstandings by several people.

[40]And there are further reasons for not granting an injunction in the wide terms sought by the applicant. This is not because the very extensive restraints which are expressed in the deed ought to be qualified in their contractual effect. It is because courts have a wider interest in the resolution of disputes than that held by the parties and will seek to make orders, in circumstances such as this, which are likely to resolve the dispute rather than exacerbate it. To enforce the contract by an order which is, word for word, a replication of the deed would be to markedly increase the potential for further litigation. That potential is due not only to the ambiguity of some provisions of the deed but also to the fact that the restraints to which the respondent agreed went far beyond the context of his conduct which had led to the dispute.” 

  1. On the issue of confidentiality, McMurdo J concluded at [41] of the reasons:

“As to confidentiality, by these proceedings the terms of the compromise have been disclosed.  These proceedings were held in open court, as they should have been and neither side suggested otherwise.  It is not appropriate now to endeavour to impose a restraint upon a breach of cl 8.”

Standard of proof

  1. A charge of contempt must be proved beyond reasonable doubt: Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 at [65] and [101].  During the hearing of the contempt application, I incorrectly referred to the standard of proof as the balance of probabilities, but having regard to the seriousness of the allegations.  After I reserved my decision, the parties were alerted to this error, but neither party wished to make further submissions as a result.    

Other relevant background material

  1. In order to put in context some of the respondent’s communications that are relied upon by the applicant to allege contempt of the order made on 2 October 2012, it is necessary to refer to some additional factual matters that were not traversed in the reasons or occurred subsequent to the hearing before McMurdo J. One of the complaints that was relied on by the applicant for terminating the respondent’s membership in the first instance was made by a 17 year old female trainee instructor who was not at that stage employed by the applicant. The name of that instructor is referred to in the affidavits filed in respect of this proceeding, but I will refer to her as AB. The respondent’s communications that are the subject of the charges proceed on the basis that the complaint made by AB resulted in the termination of his membership by the applicant. The respondent deals with the topic of “AB” in paragraphs 81 to 115 of the first affidavit. In the light of the respondent’s own material, it was a surprising submission from the respondent that it could not be established (but only assumed) that the complaint had been made by AB. To the extent that the applicant needs to prove, in relation to any of the charges, that AB made the complaint about the respondent that was one of the complaints that the applicant acted on in terminating the respondent’s membership in February 2012, that has been established (having regard to the material relied on by both the applicant and the respondent) for the purpose of this proceeding beyond reasonable doubt. It was common ground that, at the time the complaint was made by AB to her supervisor about the respondent, she was an unpaid trainee and did not commence paid employment with the applicant until June 2012.
  1. After the hearing before McMurdo J on 13 July 2012, Australian Federal Police agents arrested the respondent and he was charged with three counts of using a carriage service to menace, harass or cause offence. He was granted bail. Two of the charges are alleged to arise out of conduct that has no connection with the dispute. The other charge is alleged to arise out of emails from the respondent directed at an employee of the applicant (but not AB) after his membership was terminated in 2 February 2012.
  1. On 10 December 2012 the contempt application was given a hearing date of 15 February 2013.
  1. On 2 February 2013 the respondent was arrested and charged with one count of unlawful stalking under the Criminal Code 1899 (Qld) where the complainant is AB.  He was not granted bail initially and was held in custody on remand for over four months.  On 4 February 2013 the hearing date of the contempt application was adjourned from 15 February 2013.

Credit of the respondent

  1. The applicant cross-examined the respondent in order to show that he was not a credible witness. One of the issues that was the subject of the cross-examination on credit was the circumstances of the service of documents by the applicant’s solicitors on the respondent at their office on 24 January 2013.
  1. At the outset of the hearing, I indicated that the proceeding should deal with the issue of the respondent’s liability for contempt, before dealing with the issue of penalty, if contempt were proved. As a result the applicant did not rely on a number of affidavits that had been filed, but dealt only with the issue of penalty. One of those affidavits was the affidavit of Mr Reading filed on 4 February 2013. As the applicant was entitled to do in cross-examination, the respondent was cross-examined on Mr Reading’s version of what occurred on 24 January 2013.
  1. In paragraph 15 of that affidavit Mr Reading set out his “recollection” of the conversation he had with the respondent during his attendance at the applicant’s solicitors’ office on 24 January 2013. One of the documents delivered at that stage was the final application (including the additional charges for contempt) and Mr Reading recorded in his affidavit that in the course of the conversation the respondent said:

“I sort of expected this stuff.  In fact, as you can sort of appreciate, I sort of baited you into it.”

  1. When cross-examined on 30 July 2013, the respondent denied saying that he had baited the applicant.
  1. It emerged during the hearing on 31 July 2013 that Mr Reading had taken his recollection from an audio recording that had been made during the meeting with the respondent (of which the respondent was not aware). It is unfortunate that Mr Reading’s affidavit did not expressly state that his “recollection” was in fact a transcript of the audio recording and provide the respondent with a copy of the audio recording.
  1. The respondent’s cross-examination continued on 31 July 2013 and the audio recording of the meeting of 24 January 2013 was played to the respondent during cross-examination. The respondent continued to deny that the conversation that occurred between Mr Reading and him on 24 January 2013 was accurately recorded in Mr Reading’s affidavit or the audio recording. Neither the audio recording nor Mr Reading’s affidavit were tendered by the applicant as evidence. There is no factual finding required for the purpose of this stage of the proceeding, as to what occurred on 24 January 2013.
  1. As will become apparent from my analysis of the charges, there was ultimately no disputed factual issue that turned on resolving issues about the respondent’s credit.

What conduct is restrained by the injunction?

  1. In relation to paragraph (a) of the injunction, the first issue is what is meant by “attending any premises conducted as Fitness First Health Club.”
  1. The charges that rely on paragraph (a) of the injunction (charges 1, 2, 3 and 4) concern the applicant’s Robina premises. It is common ground that the respondent did not enter the Robina premises, but at all times was in the car park. The applicant concedes that it does not have exclusive possession of the car park which is a car park in a shopping centre where the applicant leases premises, although the particular car park where the respondent stood and handed out flyers was the car park adjoining the entry to the applicant’s premises that is commonly used by the respondent’s staff and customers. The respondent did not in any way block the entry to those premises. The issue is whether paragraph (a) of the injunction extends to the car park outside the applicant’s premises.
  1. The applicant concedes that the injunction does not define “premises”, but argues that a consideration of the background circumstances in which the order was made justifies construing the order to extend to the car park immediately outside the applicant’s premises that services the premises. It is submitted by the applicant that construction of the order which permits the respondent to attend the car park outside the applicant’s premises and distribute flyers to its customers would be inconsistent with the purpose of the order, where the order should, if reasonably possible, be construed to achieve the court’s purpose: Bakir v Doueihi [2002] QSC 19 at [18].
  1. The court in Bakir was concerned with the construction of a consent order.  The terms of the injunction ordered by McMurdo J were the result of balancing the terms sought by the applicant to reflect the contractual obligations of the respondent under the settlement deed with the wider public interest recognised by McMurdo J in the resolution of disputes by avoiding potential disputes as a result of the circumstances identified at [40] of the reasons.  The order should therefore be construed to give effect to its plain meaning in the context that is refined by the reasons.
  1. In construing “premises”, it is relevant that an exception to the restraint in paragraph (a) is attendance at the premises with the written consent of the applicant. The applicant’s written consent is appropriate in respect of the premises over which it exercises exclusive possession. The word “premises” in paragraph (a) of the injunction is unambiguous and should be construed to give effect to the words that are used in paragraph (a) and therefore as limited to the applicant’s premises from which it conducts a Fitness First Health Club which, in the case of Robina, is the premises leased for that purpose which does not extend to the car park. There was no breach of paragraph (a) of the injunction when the respondent stood in the car park adjacent to the applicant’s premises.
  1. Paragraph (b) of the injunction is concerned with any “publication” which disparages the applicant in respect of conduct of the applicant that falls into two categories. The injunction is confined to the disparagement of the applicant only in respect of the specified conduct.
  1. The first category is the conduct of the applicant which was the subject of the dispute between the parties which was settled by the settlement deed. The conduct of the applicant that was the subject of that dispute can be gleaned from the reasons. It is not the complaint made by AB or the complaint of any other instructor about the respondent. It is the conduct of the applicant in acting on the complaint of AB (or any other complaint) against the respondent, terminating the membership of the respondent and the applicant’s response to the respondent’s campaign to have his membership reinstated.
  1. The second category of the applicant’s conduct which the respondent is restrained by paragraph (b) from disparaging is conduct in respect of the performance (or otherwise) of the terms of the settlement deed. The applicant’s conduct in respect of the performance (or non-performance or part performance) of the terms of the settlement deed is circumscribed by the obligations it assumed under the settlement deed.
  1. Paragraph (c) of the injunction is concerned with communications by means of writing, emailing, calling, texting or otherwise sending to any staff member or customer of a Fitness First Health Club, as to the dispute which was settled by the settlement deed or as to that settlement, with the important exception of communications of the contents or effect of the letter of acknowledgment. Subject to that exception, the limitation on communications by the respondent that is caught by paragraph (c) relates only to the dispute that was settled by the settlement deed or the fact of that settlement. For the purpose of communications, the dispute that was settled by the settlement deed referred to in paragraph (c) is not confined to the applicant’s conduct in respect of the dispute (as for paragraph (b)), but extends to all aspects of the dispute that was settled by the settlement deed. That includes the making of the complaint by AB to the applicant that resulted in the termination of the respondent’s membership.

Charge 1

  1. The conduct that is particularised as constituting contempt in charge 1 is the handing out by the respondent on 12 October 2012 of flyers to members and staff of the applicant. The applicant contends that the content of the flyer disparaged the applicant in respect of the dispute in breach of paragraph (b). The respondent denies that there was any such disparagement and relies upon the exception to paragraph (c) of the injunction, as the flyer attached the letter of acknowledgment dated 29 March 2012 which the respondent was entitled to distribute to staff members or customers of the applicant.
  1. The introductory words of the flyer referred to the attachment of a copy of the letter of acknowledgment which was described in terms that it “was meant to have conclude (sic) a dispute between [the applicant] and [the respondent].”  That paragraph was followed by the listing of three issues under the introductory words that “Fitness First are well known through the media for the below mentioned issues.”  The first issue referred to an incident in March 2009 describing it in terms “a Fitness First trainer allegedly attacked a member after a dispute about closing times.”  The second issue referred to Fitness First taking a former member “who could not work out due to medical problems” to court for the sake of $200.  The third issue reported on Fitness First having to sell or close a stated number of gyms in the UK and selling a stated number of gyms in Australia to stay financially viable and that “Fitness First is expected to go out of business.”
  1. After listing these issues, the respondent’s flyer then stated:

“As a result of the letter of acknowledgement you can see I will not be attending Fitness First.  This means that I will be unlikely to be pushed down stairs, taken to the Supreme Court, or have my membership cancelled when Fitness First suddenly and finally does go bankrupt.”

  1. The flyer concluded with the respondent’s contact details including a statement of his intention to start up a Facebook site where people could share their “horror stories” about the applicant “if anyone has any they would like made public.”
  1. The flyer was disparaging about the applicant in respect of the three issues identified in the flyer. It is not to the respondent’s credit that he distributed this flyer which arguably was in breach of his obligation under clause 3 of the settlement deed not to disparage the applicant. The issue for the contempt application, however, is whether the disparagement was caught by paragraph (b) of the injunction. As the disparagement was in respect of matters other than the applicant’s conduct that was the subject of the dispute that was settled by the settlement deed or in respect of the performance or otherwise of the terms of the settlement deed, handing out the flyer did not breach paragraph (b). Charge 1 is not proved.

Charges 2, 3 and 4

  1. These charges raise exactly the same issues that were raised by charge 1 and charges 2, 3 and 4 are also not proved.

Charge 5

  1. Charge 5 concerns an email sent by the respondent on 12 October 2012 to 107 members of Parliament. The issue is whether the text of that email is caught by paragraph (b) of the injunction. The subject specified in the email is “AFP imposes media ban on Australian citizen on behalf of overseas corporation.”
  1. The applicant became aware of this email, as the respondent forwarded to Mr Reid of the applicant’s solicitors on 12 October 2012 at 1.17pm the email that he had sent to the 107 members of Parliament at 1.11pm. The respondent impliedly admits in paragraphs 62 to 74 of the first affidavit that he sent the email in the terms of the email that was forwarded to Mr Reid. That email in the form that it was received by Mr Reid included the email chain that was part of the email sent to the members of Parliament. That email chain included an email which I infer from its contents was sent to the same addressees on 12 October 2012 at 9.37am, an email from the respondent dated 24 September 2012 with the subject matter “AFP terrorise 18 year old girl,” and an email sent by the respondent on 30 July 2012 which also had the subject matter “AFP imposes media ban on Australian citizen on behalf of overseas corporation”. The email sent by the respondent to the 107 members of Parliament at 1.11pm re-published the earlier emails that were included in that chain in the form in which it was forwarded to Mr Reid.
  1. The parts of the email chain that the applicant particularly relies on to support this charge are the last sentence of the email sent at 1.11pm on 12 October 2012:

“… I realise Fitness First do not care about my wellbeing, let’s face it they have put one of their own staff at an increased risk of being sexually assaulted as mentioned in the attached previous emails, so you can assume what they will let happen to me”

followed by the first three paragraphs of the email sent on 12 October 2012 at 9.37am:

“Fitness First are now blaming the girl for making false statements and have even distributed the attached doc ‘letter of acknowledgment’ to all staff and members, the girl continues to be employed by Fitness First

After first using the girl to make a complaint about me now Fitness first are blaming the girl by effectively saying she made untrue statements of a serious nature

This ‘letter of acknowledgement’ means the girls employment has to be concluded as now staff and members of Fitness First are awear (sic) that she made a serious allegation against a male and now it is not backed up by the company she is employed with, this had placed the girl in danger of sexual predators and sexual harassment by staff and members as it is widely known the girl was involved in the dispute and she has a perceived history of making unsubstantiated allegation against males, as such she would find it hard to defend herself in any future he said she said issues”

followed by parts of the third paragraph of the email sent on 24 September 2012:

“I do not blame the 18 year old for making the statement it was clear she made the statement as to the instructions of Fitness First and Fitness Firsts lawyers, personally I find it sick that Fitness First would put one of their own staff through this because they got the AFP to bring false charges against myself which did not hold up under scrutiny I am asking if anyone can help this girl as my understanding is she is traumatised by the ordeal and feels unsafe leaving home.  I can’t do anything as per court orders and the girl is employed by the company I am involved against in the Supreme Court case, I have no animosity toward the girl, I actually feel very upset as she is going through this because of Fitness First, Fitness Firsts lawyers, and the AFP brought a charge against me that would not hold up so now they are trying whatever they can to get at me even if it means terrorising an 18 year old girl who is employed by them.”

  1. The email of 12 October 2012 at 9.37am incorporates the respondent’s interpretation of events involving AB which became a recurring theme for a number of his communications that have resulted in the charges. On the basis that it was a complaint from AB that resulted in the applicant’s terminating the respondent’s membership, the respondent concludes from the reference in the letter of acknowledgment to “misconceptions, miscommunication and misunderstandings by various persons which lead to the dispute” that AB withdrew her complaint against him. The respondent’s logic is that the contents of the letter of acknowledgment which could be communicated to the applicant’s staff and members would convey that AB had withdrawn a serious allegation against the respondent which would put her in danger of being the subject of attention by sexual predators or those inclined to sexual harassment, because she would not be believed if she made a complaint, because of a history of making “unsubstantiated allegations against males.” There is a real lack of logic in both the respondent’s conclusions and speculation.
  1. What is relevant, however, for this contempt proceeding is whether the promotion by the respondent in communications of his theory about the danger for AB, because of the letter of acknowledgment, can be characterised as part of the dispute between the applicant and the respondent that was settled by the settlement deed. The approach of the applicant is that the dispute commenced with the complaint by AB, so that anything to do with the complaint made by AB brings the matter under the umbrella of the dispute that was settled by the settlement deed. That approach has the effect of extending the ambit of paragraph (b) of the injunction which is not consistent with the confinement of paragraph (b) to the disparagement of the applicant in respect of the applicant’s conduct that is specified in paragraph (b). the complaint made by AB is not conduct of the applicant.
  1. It is disparagement of the applicant, however, to refer to its conduct (on the basis of the respondent’s logic applied to the letter of acknowledgment) of putting “one of their own staff at an increased risk of being sexually assaulted”. That is disparagement of the applicant’s conduct in acting on the complaint of AB and then resiling from that position. The same observation applies to the first three paragraphs of the email sent on 12 October 2012 at 9.37am. The third paragraph of the email sent on 24 September 2012 relates to the statement given by AB to the Australian Federal Police which occurred after the settlement of the dispute between the applicant and the respondent and was not conduct of the applicant. It therefore does not fall within paragraph (b) of the injunction.
  1. As some parts of the email chain sent to the 107 members of Parliament at 1.11pm on 12 October 2012 disparage the applicant in respect of the applicant’s conduct which was the subject of the dispute that was settled by the settlement deed, charge 5 is proved.
  1. In paragraph 69 of the first affidavit, the respondent contends that if the court were to find that there was a breach by the email the subject of charge 5 “it should be ruled as a technical breach and not in contempt of court as there was no intention to show contempt to the court.” No specific mental element has to be proved, however, in order to establish contempt: Lade at [105].

Charge 6

  1. On 15 October 2012 the respondent sent an email to Mr Reid and an email address connected with the applicant. The email was not addressed to a specific employee of the applicant, but to an email address that used the description “editor” with the extension for the applicant’s email addresses. The applicant submits that the communication was in breach of both paragraphs (b) and (c) of the injunction.
  1. The content of the email was described in the email as an “offer to end the dispute between” the applicant and the respondent and the email then set out the respondent’s proposed conditions. Those proposed conditions do refer to the skewed logic of the respondent about the applicant having placed AB “in an unsafe work environment,” and that arguably is disparaging of the applicant’s conduct in respect of the dispute settled by the settlement deed by acting on the complaint of AB and then resiling from that position in order to settle the dispute with the respondent. If the content of the proposed condition requesting the applicant to terminate AB’s employment and membership was disparaging, there was no disparagement of the applicant by publication by merely sending the email to the applicant or its solicitors. The second part of the email that proceeded to point out the applicant’s solicitors’ role in the dispute is disparaging of those solicitors, but not in a way that is disparaging of the applicant and that is not caught by either paragraphs (b) or (c) of the injunction.
  1. To the extent that the applicant relies on paragraph (c) of the injunction, there is no evidence that there was any staff member of the applicant who actually received the email sent to the email address associated with the applicant with the description “editor.” In fact, when Mr Reid gave evidence, he stated “I don’t know what the editor at Fitness First is or who that is.”
  1. Charge 6 is therefore not proved.

Charge 7

  1. Charge 7 arises from a post the respondent made to Facebook on 2 December 2012 in terms that included:

“… and I was one of the people taken to the Supreme court by Fitness First, they came off second best and the court ruled Fitness First staff not only made statements that were defamatory against me but they contradicted their earlier statements when under cross examination.  Some of the staff involved in the court case are now working at these gyms and are continuing to cause trouble there.  I am expected to sue these gyms in the new year over defamatory statements made by these now members of staff.”

  1. Mr Reading viewed the posts on the respondent’s Facebook page that are the subject of the charges and took screen shots of what he viewed and copies of those screen shots are exhibited to Mr Reid’s affidavit filed on 24 January 2013. The respondent accepts that the Facebook posts relied on by the applicant in this contempt proceeding are the same or similar to those he did post to his Facebook site, but disputes that the matter can be proved beyond reasonable doubt, as the posts have been deleted and there is no independent verification able to be made as to the accuracy of the posts and that they were in the terms made by him. In view of Mr Reading’s evidence and the concessions made by the respondent as to the content of the posts which reflect the sentiments conveyed in his emails that have also been exhibited, I am satisfied that the applicant has discharged the onus of proving beyond reasonable doubt that the Facebook posts that are the subject of the charges were made by the respondent.
  1. The post that is the subject of charge 7 sets out the respondent’s interpretation of the proceeding before McMurdo J and the reasons. It is not entirely accurate. Although the applicant did not succeed in obtaining an injunction against the respondent in the exact terms which it sought before McMurdo J, the applicant did prove that the respondent breached the settlement deed and obtained the injunction in the terms of the order made on 2 October 2012. Even allowing for the recognition given by the order to the letter of acknowledgment, it overstates the result to describe the applicant as coming off “second best”. It is accurate that McMurdo J ruled the applicant’s staff had made statements that were defamatory of the respondent. The general statement that the applicant’s staff contradicted their earlier statements when under cross-examination appears to be an over-generalisation. Any disparagement of the applicant arising from the first part of this post is not, however, in respect of the applicant’s conduct that is the subject of paragraph (b) of the injunction, but is in respect of the hearing of the proceeding before McMurdo J. That does not fall within paragraph (b). The other part of the post relates to conduct of the applicant’s staff that postdates the dispute that was the subject of the settlement deed and the proceeding before McMurdo J. That also does not fall within the conduct that is restrained by paragraph (b) of the injunction. Charge 7 is not proved.

Charge 8

  1. Charge 8 arises from a post the respondent made to Facebook on 3 December 2012 in terms that included:

“The issue ended up in the Supreme Court, I cant mention everything due to court orders though

Some of the staff at Fitness First now work as instructors at the Southport Sharks fitness centre, Southport and World gym, Ashmore.  One instructor who particularly caused trouble was [AB]

If these gyms no longer employ this instructor then I would be with them and not be forced into a position where I might have to sue the gyms for the actions of their staff.  Fitness first is dodgy and it is going under because of that, let’s hope other gyms by hiring Fitness First staff do not become like Fitness First.”

  1. On any view this post is disparaging of the applicant, but the issue is whether the publication falls within paragraph (b) of the injunction on the basis that it is disparaging of the applicant in respect of the conduct that is specified in paragraph (b).
  1. The respondent’s argument is that anything to do with AB was not caught by paragraph (b), because she was not an employee of the applicant at the time of the dispute. The respondent also submits that his reference to the applicant being “dodgy” is because of their “dodginess” and was not referring to the dispute that was settled by the settlement deed.
  1. There is an opaqueness about this post that suggests the respondent was crafting it to fall technically outside the injunction. In fact, the respondent admits in paragraphs 151 and 154 of the second affidavit that he “tried to keep within the courts orders and went about compiling any communications with great care” and that he “did skirt the boundaries of the courts orders.” A further reading of the post, however, shows that aim was not achieved. The post commences with a reference to the issue that ended up in the Supreme Court. The statement that “One instructor who particularly caused trouble was [AB]” must be referable back to the issue that ended up in the Supreme Court. The post suggests that AB is working as an instructor at another gym and suggests that if those gyms did not employ that particular instructor, then the respondent might not be forced into a position to sue those gyms for the actions of their staff. The reference to the applicant being “dodgy” in conjunction with the expressed hope that other gyms by hiring the applicant’s staff do not become like the applicant can be a reference in context only to the conduct of the applicant, when AB was an instructor with the applicant, before the issue ended up in the Supreme Court. It is a tortuous post on any interpretation, but it does disparage the applicant in connection with the dispute. It is not limited to observations about the complaint made by AB against the respondent in isolation from the applicant’s response to that complaint. Charge 8 is proved.

Charge 9

  1. Charge 9 also concerns a post to Facebook made by the respondent on 20 January 2013:

“Well the owner of World gym has not had me killed and put into a hole as he stated he would.  Its good to see the fitness industry banding together I just hoped it would not be to threaten and intimidate me

 

Just ask Fitness first if death threats and intimidation work on me, they have not and will not, Fitness first have even taken me to the supreme court and are doing so again a second time as all they know how to do is threaten and bully.  It’s a pitty (sic) that the rest of the industry are now following suite (sic).”

  1. The applicant relies particularly on the second paragraph of that post on the basis that it refers disparagingly to the applicant in relation to the dispute in breach of paragraph (b) of the injunction, because that was the subject of the applicant’s proceeding in the Supreme Court and that is the only part of the post that gives context and content to the disparaging comments made of the applicant in relation to death threats, intimidation and bullying.
  1. The respondent argues that there is no link between the reference to death threats and intimidation and the applicant taking him to the Supreme Court.
  1. A fair reading of the second paragraph of the post is that the death threats and intimidation may relate to wider conduct than the dispute that the applicant took to the Supreme Court, but the allegation against the applicant of making death threats to or intimidating or bullying the respondent does cover the dispute that was the subject of the proceeding in the Supreme Court. Charge 9 is proved.

Charge 10

  1. On 22 January 2013 the respondent made another post which purported to give “some background to this whole issue” and identified AB and that she had “made an allegation against “the respondent” in return for employment at Fitness first, Robina.” There is then a reference to a settlement being entered into by the applicant and the respondent. The text continues:

“The gym broke the settlements conditions and the issue ended up in the Supreme Court.  Now for a second time the issue is before the Supreme t[AB] continued to make untrue, unsubstantiated, and now withdrawn allegations about myself.  [AB] has made these complaints to state and federal police; these complaints are aided, supported, and initiated by Fitness first’s lawyers.”

  1. Although at the hearing before McMurdo J, the respondent alleged breaches of the settlement deed by the applicant, it was the applicant’s application for an injunction against the respondent that brought the matter before the Supreme Court. The first sentence in the above quoted text therefore misstates the history of this proceeding and the outcome of the hearing before McMurdo J. That first sentence clearly relates to the performance (or otherwise) of the settlement deed by the applicant and is disparaging of the applicant.
  1. The text of this post continues with statements made by the respondent in relation to the employment of AB at a number of gyms and that those gyms “tried threatening and intimidating” the respondent. The text continues with observations about those gyms and concludes:

“I do blame [AB] for some of this, but it was the gyms who followed through with threats trying to cover up the mess Fitness first caused and now they inherited.”

  1. Although the above quoted sentence is primarily concerned with other gyms, the reference to “the mess” caused by the applicant is a reference to the dispute that was the subject of the settlement deed that was before the Supreme Court in this proceeding and is also disparaging of the applicant. The fact that most of the post is concerned with the complaints made by AB after the dispute between the applicant and the respondent had been resolved by the settlement deed does not alter that disparaging statements made by the respondent within the post in respect of the applicant fall within the conduct proscribed by paragraph (b) of the injunction. Charge 10 is proved.

Charge 11

  1. Charge 11 concerns a message that the respondent sent from his Facebook page on 21 January 2013 to the Facebook page of Fitness First Mermaid Waters. It includes the following:

“… [AB] now for a year has been making more allegations, all are untrue, withdrawn, the allegations are serious she once told the federal police I was waiting outside her home and following her around.

Again I would like to point out that your gym hired a person who has a history of making very serious allegations against a male that are proven to be untrue, and your gym has placed her in a position where she can do this again.

Your gyms reaction to this [AB] issue is to send me death threats, ignore the issue, or to take me to court.”

  1. This message is disparaging of AB, but not the applicant in respect of the conduct of the applicant that is specified in paragraph (b), and is therefore not in breach of paragraph (b) of the injunction. During submissions, the applicant argued that the message was in breach of paragraph (c) of the injunction, but that is not so when the message was not a communication about the dispute. Charge 11 is not proved.

Charge 12

  1. But for the fact that it is impliedly admitted by the respondent in paragraphs 193 to 200 that he sent the email that is the subject of charge 12, I was inclined to strike out the charge on the basis that there was no evidence from any of the recipients of the email that it was received in those terms. It was hearsay for Mr Reid to depose that a named person at Southport Sharks received the emails sent by the respondent.
  1. Charge 12 concerns an email that the respondent sent on 10 January 2013 to email addresses at other gymnasiums at the Gold Coast:

“Your gym employed [AB] who over the last year has made numerous allegations about myself and your gym has now given [AB] a forum to continue with her allegations (she even told the Australian Federal Police I was waiting outside her house and following her around).  These allegations are increasing in number and intensity.  At no time have I been charged with anything in relation to [AB].

[AB] will be called as a witness in the upcoming Fitness First V Dean McNicol contempt hearing to be held in the Queensland Supreme court on the 15th February 2013 and the media will be releasing details about the issue after that time.  It’s also likely [AB] will be charged with making a false statement to police.” 

  1. This message is disparaging of AB, but not the applicant in respect of relevant conduct, and is not in breach of paragraph (b) of the injunction. Charge 12 is not proved.

Charge 13

  1. The respondent impliedly admits in paragraphs 201 to 203 of the second affidavit that he sent another email to the email addresses of other gymnasiums at the Gold Coast on 11 January 2013 that showed as the subject matter “[AB] issue” which is the subject of charge 13. The email opened with the hope expressed by the respondent that “you guys can appreciate the position I am in” and the following is then set out:

“I was interviewed for four hour (sic) by the Australian Federal Police

 

I had over a 20 year history in the industry as a group fitness instructor, gym member, gym manager, group fitness coordinator, and group fitness instructor trainer destroyed

 

If I do try to defend myself as to some of the allegations involving a then 17 year old girl I could go to jail for up to six months for contempt of court as it would breach the court orders with the Fitness first issue as a settlement was reached in that issue

 

No charges have ever been laid in relation to [AB] against me, however until the AFP charges finally get officially dropped I can’t approach within 200 of [AB], again no charges have ever been made in relation to her

 

I can’t go out with friends as if I see [AB] I have to go leave my friends.  When I eat at a food court at a shopping centre I have to get a meal that I can take away quickly.  I don’t go out much anymore.”

  1. This message is about AB. Although there is a reference in the third paragraph to the potentiality of breaching court orders, as a settlement was reached with the applicant, that reference is not disparaging of the applicant in respect of relevant conduct. The message is not in breach of paragraph (b) of the injunction. Charge 13 is not proved.

Charge 14

  1. The subject of charge 14 is a message that the respondent sent through Facebook on 17 January 2013 to the Facebook page of another gym where he alleged that AB was working. The message stated:

“Over the last year [AB] has made serous (sic) allegations about myself relating to sexual harassment.  None of these allegations have been acted on by police, all are untrue and have been withdrawn, and these allegations are vicious and nasty

 

[AB] continues to make these allegations and they are increasing in there (sic) intensity and number.  [AB] destroyed a 20 year career I had in the Fitness industry.

 

[AB] was employed at Fitness first and now at your gym as Fitness first was so desperate to get rid of her as she cost Fitness first a huge amount of money when they settled another dispute between Fitness first and myself which she was part of

 

It is likely that your gym will be sued over this issue and this means the services your gym offers you will be reduced as the gym will have to endure substantial legal costs because of [AB]

 

I just want [AB] to stop making allegations about myself, remember if she has a history of making untrue and withdrawn allegations against males at her previous workplace, then she can do this here to you.”

  1. The text of this message is about AB. It is disparaging of AB. The applicant submitted that it was inaccurate in alleging that increasing allegations were made by AB. The accuracy of the message about AB is not the focus in this contempt application. The suggestion that the applicant was “desperate to get rid of [AB]” as an employee as she cost the applicant “a huge amount of money” when they settled the dispute between the applicant and the respondent “which [AB] was part of” is a reference to the dispute that was the subject of the settlement deed, but it is not disparaging of relevant conduct of the applicant. The reference in the last paragraph to “making untrue and withdrawn allegations” is about AB and not about relevant conduct of the applicant. The message is not in breach of paragraph (b) of the injunction. Charge 14 is not proved.

 

Charge 15

  1. Charge 15 concerns another email sent to other gymnasiums in Queensland on 21 January 2013 which the respondent impliedly admits to sending in paragraphs 212 to 219 of the second affidavit.  This email is described as being an update “on the issue at your gym involving the staff member [AB].” 
  1. The opening substantive paragraph recites that “[AB] made allegations about myself at Fitness first, these allegations were quickly withdrawn and a settlement was reached, so I can (sic) mention anything about that.”  There is nothing that is disparaging about the conduct of the applicant which was the subject of the dispute settled by the settlement deed in that recitation.  Thereafter the email focuses on AB and foreshadows that the respondent intends “to sue your gym over the issue.”  The email does not make much sense, but any disparagement is directed against AB and not any relevant conduct of the applicant.  Charge 15 is not proved.

Charge 16

  1. Charge 16 concerns an email sent by the respondent on 22 January 2013 to email addresses for other gymnasiums on the Gold Coast which he impliedly admits to sending in paragraphs 221 to 228 of the second affidavit. He specifically admits in paragraph 223 that “this was skirting the orders.”
  1. The subject matter of this email is shown as “[AB] issue.” The opening words refer to the fact that in the next few weeks the respondent would be “tied up with the Supreme Court case involving” the applicant and AB. The email then sets out a heading for each of the gymnasiums and one heading “All gyms” under which the following text appears:

“You hired a person who had a history of making unsubstantiated allegations and someone who almost destroyed the last gym she worked at because of her actions.  When you found out about the issue you did some really stupid things as listed below.”

  1. Under the heading with the applicant’s name, the content relates to general reputational matters of the applicant and has nothing to do with the matters that are the subject of paragraph (b) of the injunction. Charge 16 is not proved.

Charge 17

  1. Charge 17 relates to a post by the respondent to his Facebook page on 23 January 2013 under the heading “Update on the [AB] issue that started off this whole Facebook campaign.”
  1. The applicant relies upon all the text in the post as referring disparagingly to the applicant in relation to the dispute and therefore in breach of paragraph (b) of the injunction. The respondent contends the post does not disparage the applicant in relation to the dispute.
  1. This is another post that anticipated the hearing of the contempt application on 15 February 2013. After the post referred to what the respondent anticipated would be the outcome of the cross-examination of staff members of the applicant, the post continued:

“The Queensland Supreme court hearing next month is going to be an absolute bloodbath with Fitness first staff being cross-examined about; hiring staff in return for making allegations about people the gym did not want as members, making false statements to state and federal police, and many illegal practices the gym still does

 

The trial is on the 15th February 2013 and soon after that when everything comes out in to the open I will be posting it here.  As I said the original Queensland Supreme court case was a bloodbath for Fitness first and this next one will be even worse for them

 

One witness [AB] will be asked to explain why she made more than 5 statements about myself in return for being employed at Fitness first, none of the statements have been acted on and even Fitness firsts lawyers have contradicted her statements.  [AB] went on to lie in a statement to the Australian Federal Police and tried to hide the fact she was hired by Fitness first as a receptionist I return for making the allegations about myself

 

Potentially many Fitness first could face serious criminal charges and imprisonment on contempt of court issues as it’s now known that a Fitness first witness lied under oath in the last Queensland Supreme court hearing.”

  1. The content of this post squarely raises the dispute that was the subject of the settlement deed, as the respondent makes the allegation that the applicant hired staff in return for making allegations about people that it did not want as members. Although that allegation is expressed in general terms, in the context of the anticipated contempt proceeding, it could be a reference only to the hiring of AB after she had made the complaint that resulted in the applicant’s termination of the respondent’s membership. That is disparagement of the applicant’s conduct in respect of the dispute and, in particular, making an allegation about an incentive that the applicant provided to AB which is relevant to its conduct in acting on AB’s complaint. The final paragraph discredits the applicant by discrediting its staff in relation to the evidence that they gave in the hearing before McMurdo J, but that is not disparagement of the applicant within the terms of paragraph (b) of the injunction. Although this post is mainly about AB, it incorporates some relevant disparagement of the applicant in respect of relevant conduct. Charge 17 is proved.

Orders

  1. The applicant commenced this proceeding to obtain enforcement of the terms of the settlement deed and was successful in vindicating its rights in the civil justice system against the respondent in the form of the injunction made on 2 October 2012. When the court makes an order against the party in a civil proceeding which restrains the party from specified conduct, it is not a game for that party to see how close he can go without breaching the order. An order made in civil proceedings must be observed by the party against whom it is made. A contempt application is a means for enforcement of the court’s orders for the benefit of the party that obtained that order, but also for vindicating the authority of the court in which there is a real public interest: Lade at [60]. 
  1. The respondent’s suggested justification in the second affidavit for breaching the injunction shows how misguided his approach to complying with the injunction was:

155. The Respondent had to publicly defend themselves against serious allegations by the Applicant of effectively Stalking of a minor. It is reasonable for the court to allow the Respondent to do this, especially in light of the Applicant trying to block the Respondent from releasing the letter of Acknowledgment

 

156. The Respondent argues that many people being accused of such a serous (sic) issue would have no hesitation in breaching the courts orders. The Respondent when forced into the options of how to deal defending themselves at all times tried to stay within the boundaries of the courts order despite the serious repercussions in not being able to fully.”

  1. As this contempt application concerned only the issue of whether the terms of the injunction were breached by the respondent, it has not been appropriate to make any observations about less than attractive approach of the respondent in defending the charges on the basis that he was disparaging AB and not the applicant or about any potential civil liability that the respondent may have to AB for any disparagement of her.
  1. The following order should be made:

It is declared that Dean McNicol committed contempt by failing to comply with the order of Philip McMurdo J made on 2 October 2012 in this proceeding, as particularised in charges 5, 8, 9, 10 and 17 of the further amended application filed on 22 July 2013.

  1. A further hearing on the issue of penalty and to deal with the costs of the application will be necessary.
Close

Editorial Notes

  • Published Case Name:

    Fitness First Australia Pty Ltd v McNicol

  • Shortened Case Name:

    Fitness First Australia Pty Ltd v McNicol

  • MNC:

    [2013] QSC 212

  • Court:

    QSC

  • Judge(s):

    Mullins J

  • Date:

    20 Aug 2013

Litigation History

No Litigation History

Appeal Status

No Status