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  • Unreported Judgment

Fitness First Australia Pty Ltd v McNicol (No 2)


[2013] QSC 329






Trial Division


Application for punishment for contempt 


25 November 2013 (ex tempore)




25 November 2013


Mullins J


1. In respect of each charge, the respondent is sentenced to three months imprisonment.

2. The date the respondent is released on parole is fixed at 25 November 2013.


PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – SUPREME COURT – GENERALLY – where after a hearing the respondent was found to have committed contempt by breaching the order of Philip McMurdo J made on 2 October 2012 – where five of the 17 contempt charges were proved – where the conduct that was the subject of the latter four of the proved charges was committed after the contempt application had begun – where the respondent expressed some remorse, but that was diluted by allegations made in his affidavit and oral submissions for the penalty hearing – where the respondent has no prior criminal history – where the fact that the respondent had been held in custody  on remand for over four months in relation to a stalking charge after the contempt application had commenced was not irrelevant to the penalty to be imposed for the five proved contempt charges – what punishment is appropriate for the contempt and the circumstances of the contemnor

Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, considered

Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115, considered

Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 374, considered

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

Fitness First Australia v McNicol [2012] QSC 296, related

Formal Wear Express Franchising Pty Ltd v Roach [2004] QCA 339, considered


D de Jersey for the applicant

The respondent appeared for himself


Minter Ellison – Gold Coast for the applicant


HER HONOUR:   After a hearing, I found that the respondent, Mr McNicol, committed contempt by failing to comply with the order of his Honour Justice McMurdo 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.  My reasons are found in Fitness First Australia Pty Ltd v McNicol [2013] QSC 212 (the reasons).  This proceeding was complex as there were 17 charges prosecuted by the applicant in respect of which evidence was adduced before me.  I did not find 12 of those charges proved.  It is important in imposing penalty for the five charges that were proved that I am not influenced by the conduct that was found not to be in breach of Justice McMurdo’s orders. 


It is unfortunate that the respondent is self-represented.  He has not assisted himself by some of the contents of the affidavit that he filed on 18 November 2013 for the purpose of the hearing on penalty, or by some of his oral submissions made today.  The overriding consideration on the issue of penalty is that court orders made in civil proceedings must be observed by the party against whom the orders are made in order to uphold the effective administration of justice:  Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107. 


Both the respondent in his affidavit filed on 18 November 2013, and Mr de Jersey of counsel on behalf of the applicant in his written submissions filed by leave today have addressed relevant factors for punishing for contempt of court that were summarised in Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115 at paragraph 29.  I will now deal with those factors to the extent that they are relevant to this matter. 


I have observed during submissions that the email chain sent by the respondent to 107 members of Parliament on 12 October 2012 that disparaged the applicant in breach of paragraph (b) of the injunction ordered by Justice McMurdo was the most serious breach of that injunction. The contempt application in its original form which included the charge relating to this email chain was first filed on 15 October 2012.  The respondent was then on notice that the applicant was treating seriously any perceived breach of the injunction and the consequences that could apply if he did not comply strictly with the terms of the injunction.  It is, therefore, aggravating that the conduct that was the subject of the four other charges that were proved was committed after the contempt application had begun. 


I am not suggesting that the respondent was guilty of a continuous breach of the injunction over the period between the first and last proved charges, because each breach occurred on the date of the relevant charge.What is aggravating is the fact that five charges were proved, and that four were committed after the first charge that was the subject of the initial application for contempt. 


The respondent now freely acknowledges that the conduct that was the subject of the five charges amounted to contempt and accepts the decision that is reflected in the reasons.  The respondent contends that at the time he committed those contempts he considered that his communications were not in breach of Justice McMurdo’s orders because he relied on his interpretation of Justice McMurdo’s orders. He accepts that his interpretation was wrong, but argues that he, effectively, made one mistake that was repeated five times, and that it was not until he received my decision that he realised that his interpretation of Justice McMurdo’s orders was wrong.  That is no excuse, however, for the conduct and, as I have indicated during the main hearing and otherwise in debate with Mr McNicol during submissions, when he was the subject of a court order it was important that he exercised some prudence about his compliance with the court order. 


It is unfortunate that the manner in which the applicant and the respondent originally handled their dispute, that was resolved by the deed of settlement and the letter of acknowledgement that is the subject of Justice McMurdo’s decision in Fitness First Australia v McNicol [2012] QSC 296, escalated into the injunction proceeding that was decided by Justice McMurdo and this contempt application. The injunction that was ordered by Justice McMurdo was in narrower terms than those originally sought by the applicant.  Perhaps Justice McMurdo was prescient when he observed at paragraph 40 of his reasons, “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.” 


It is not irrelevant that the approach of the applicant to the enforcement of the injunction had some difficulties, to which I referred in the reasons, and has encouraged the respondent to be distracted by the applicant’s failure to comply with directions. The respondent’s frustration with the applicant, however, is no excuse for his breach of the injunction, but it serves to explain partly some of his more ill-advised assertions in oral submissions, including some assertions that were incorporated in his affidavit filed on 18 November 2013. 


The motive for the contempt in each case is apparent from the terms of the impugned communications themselves.  I refer to the findings I made in the reasons about the effect of these communications at paragraphs 62, 75, 79, 83 and 101 of the reasons.  There was an element of lack of control on the respondent’s part in his Facebook posts in the period after I gave the judgment and found the five charges proved, and before the further review of this matter on 4 October 2013.


Since then, the respondent has, at least, expressed some remorse in his affidavit filed on 18 November 2013 and in his submissions to the court, both on 4 October 2013 and today, particularly by his willing acceptance that he did breach Justice McMurdo’s orders, although he has managed to dilute his expressed remorse by other allegations made in the same affidavit and in oral submissions today. 


It can be noted in the respondent’s favour that the contempts were not committed by him for the purpose of gaining any benefit from the contempt.  I have inferred that the respondent’s capacity to respond appropriately in this proceeding has been compromised to some extent by this having to deal with the stalking charge referred to in paragraph 34 of the reasons and to the three Commonwealth charges referred to in paragraph 32 of the reasons.  Again, I’m not suggesting that they excuse any behaviour or the contempts on Mr McNicol’s part, but to some small extent they explain his overwrought condition in Court and some of the ill-advised comments that he has made.


Although the respondent has these outstanding charges against him, he has no prior criminal history, he is university educated, and spent the last couple of years as a carer for his father who had dementia.  The respondent was held in custody for over four months between 2 February and 13 June 2013 to which I made reference in paragraph 34 of the reasons.  Even if he were ultimately convicted of that stalking charge, it is likely that he would not be sentenced in the ordinary course to imprisonment that required him to serve as much as four months as an actual custodial component.  The fact that the respondent has served that period of four months in custody is not irrelevant to the penalty to be imposed for the five proved charges of contempt.  That is a considerable period to have been held on remand in the circumstances.


Although Mr de Jersey conceded in oral submissions that it should not be ignored in this penalty hearing, the gist of the applicant’s submissions is that, “the respondent’s recent atrocious conduct … answers any contention he might seek to advance that … it is nonetheless appropriate to give him credit for time he has already spent in custody ….”  As I have indicated during the course of submissions, I do not consider that I should ignore that four months in custody on remand for the stalking charge in determining the penalty for the contempt proceeding. 


One of the purposes of sentencing for contempt, or a relevant consideration, is deterrence both of the respondent in particular but to other persons who are the subject of Court orders in the exercise of the Court’s civil jurisdiction.If enforcement of the Court’s orders by punishment for breach of them is not implemented, then others may not be discouraged from breaching Court orders made in civil proceedings.  The respondent remains the subject of Justice McMurdo’s injunctions.  It is important that he is also deterred by the punishment imposed in this contempt application from any further breach of the Court orders.  The applicant seeks a penalty of imprisonment of six months including an actual custodial component.  The respondent’s original submission was that the penalty should be one or two weeks imprisonment that was wholly suspended. 


The respondent admits that he is not in a position to pay a fine, but in any case I consider that a fine would not be sufficient punishment in the circumstances of the respondent’s repeated contempts and his less than wholehearted remorse.  I was referred to Mr de Jersey particularly to the decision of Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 374 and Formal Wear Express Franchising Pty Ltd v Roach [2004] QCA 339.  As with any sentencing, there is always difficulty in drawing analogies with comparable sentences.  But for Mr McNicol’s period held on remand for the stalking charge, I would have considered a sentence in the vicinity of six months imprisonment with some actual custodial component as within range. 


Instead, on each charge I will sentence the respondent to three months imprisonment and order that the date that he be released on parole is fixed at 25 November 2013.  The effect of ordering that you’re released on parole, Mr McNicol is that you must attend a community probation and parole office today or tomorrow and tell them that you have got Court ordered parole and they will give you a copy of the Court ordered conditions.  One of the conditions of Court ordered parole is that you report the same or the next business day effectively.  You won’t get there today, but go tomorrow.  Which is your nearest?


RESPONDENT:   I’m currently living around the area of Robina on the Gold Coast.


HER HONOUR:   Yes.  I’m not sure – I know there’s one at Southport.  You’ll need to check – what I’ll do is while we’re doing the next bit I’ll get my associate to go down to the registry and get a pamphlet on where the – there’s a pamphlet the Corrective Services Commission publishes with respect to the location of all the probation and parole offices, so you must – but you must report there tomorrow, and they’ll give you – like, they’ll take your particulars and they’ll give you a copy of your conditions of Court ordered parole and they’ll tell you when next to report and they’ll discuss with you what they can do to assist you and you can discuss with them anything that you want to raise.


RESPONDENT:   So they’ll have all that on record?


HER HONOUR:   Well, probably not.  I find that although my associate will get this down to the registry this afternoon, contempt proceedings are unusual and the orders have got to be taken out.  But they’ll be able to – they will have the file downstairs tomorrow so it will be the civil list manager you can tell the probation and parole office to contact but you’ll be able to explain to them what happened.  You’re articulate, and you’ll be about to deal with educating them about that the Court can order sentences of imprisonment and parole in relation to some civil proceedings.  Now, that’s the penalty.  Let’s do the costs.




HER HONOUR:   When it came to the question of the costs of the contempt application, Mr de Jersey of counsel on behalf of the application indicated that the application was not seeking an order for the costs of 4 October 2013, accepted that the costs would be limited to the five charges that had been proved, and was not seeking that the costs be assessed otherwise than on the standard basis.  The applicant has made appropriate concessions in relation to the costs that it was seeking.  The respondent argued that there should be some element of punishment of the applicant for the matters that the respondent has agitated during the proceeding in respect of the applicant’s solicitors as falling short of full compliance with Court orders and the UCPR. 


Costs are in the discretion of the Court.  Although I adverted to some procedural irregularities in the reasons and in fact made other comments relevant to the same during my reasons on penalty, the fact remains that these proceedings were brought to vindicate orders made by Justice McMurdo. Although the applicant was unsuccessful in proving contempt in relation to 12 of the charges, it is not seeking to recover its costs in relation to those charges.  I do not consider that any further diminution of the costs is warranted. 


The one area where I have been inclined not to make an order for costs in reflecting about the matter before hearing the submissions was the wasted review on 4 October 2013, but the applicant has conceded that it should not recover costs in relation to that hearing in any case.  I therefore consider that the appropriate order for costs in the circumstances is that the respondent the applicant’s costs of the proceeding for contempt, limited to the five charges that have been proved by the applicant, and excluding the hearing on 4 October 2013, to be assessed on the standard basis. 



Editorial Notes

  • Published Case Name:

    Fitness First Australia Pty Ltd v McNicol (No 2)

  • Shortened Case Name:

    Fitness First Australia Pty Ltd v McNicol (No 2)

  • MNC:

    [2013] QSC 329

  • Court:


  • Judge(s):

    Mullins J

  • Date:

    25 Nov 2013

Litigation History

No Litigation History

Appeal Status

No Status