FEDERAL COURT OF AUSTRALIA

 

Australian Competition & Consumer Commission v Purple Harmony Plates Pty Limited (No 3) [2002] FCA 1487

 

CONTEMPT – failure to comply with court orders – order sought requiring respondents to perform certain acts to transfer registration of domain name to Australian Competition and Consumer Commission – purpose of transfer to enable Australian Competition and Consumer Commission to post corrective advertising on website – whether transfer futile – warrant sought for committal of respondents to prison – respondent denied authority and jurisdiction of the court – whether failure to comply with orders wilful.

PRACTICE AND PROCEDURE – jurisdiction – order sought requiring respondents to facilitate transfer of registration of domain name to Australian Competition and Consumer Commission – registrar of domain name outside jurisdiction – property the subject of the order sought outside jurisdiction – registrant of domain name within jurisdiction.

Federal Court Rules:  O 37 r3

Federal Court of Australia Act 1976 (Cth):  s 23

Australian Competition and Consumer Commission v Purple Harmony Plates Pty Limited [2001] FCA 1062, referred to

Gunter v Hollingworth [2002] FCA 943, considered

Cameron v Cole (1944) 68 CLR 571, applied

Re Wakim; Ex parte McNally (1999) 198 CLR 511, applied

Matthews v Australian Securities & Investments Commission (2000) 97 FCR 396, applied

Australia and New Zealand Banking Group Ltd v Merribee Pastoral Industries Pty Ltd (1998) 84 FCR 367, applied

Medibank Private Ltd v Cassidy [2002] FCAFC 290, referred to

Jackson v Sterling Industries Limited (1987) 162 CLR 612, referred to

Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643, referred to

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, referred to

Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132, applied

Tritech Technology Pty Ltd v Gordon (2000) 48 IPR 52, referred to

National Australia Bank Ltd v Dessau [1988] VR 521, applied

Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404, referred to

Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd (Drummond J, 6 November 1998, unreported), referred to

Australian Competition and Consumer Commission v INFOPC.com Pty Ltd [2002] FCA 949, applied

 

 

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v PURPLE HARMONY PLATES PTY LIMITED (No 3)

 

V 866 of 2000

 

GOLDBERG J

29 NOVEMBER 2002

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 866 of 2000

 

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	PURPLE HARMONY PLATES PTY LIMITED (ACN 077 965 587) First Respondent   NEAL ARTHUR LYSTER Second Respondent   HELEN THERESE GLOVER Third Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	29 NOVEMBER 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

 

1.         The first respondent, Purple Harmony Plates Pty Limited, transfer the registration of the domain name in respect of the website www.purple‑plates.com (“the domain name”) to the applicant, Australian Competition and Consumer Commission (“the Commission”), within fourteen days of the date of this order.

 

2.         The second respondent, Neal Arthur Lyster, take all such steps, perform all such acts and sign all such documents as may be required of him by the Commission within fourteen days of the date of this order to effect the transfer of the registration of the domain name to the Commission.

 

3.         The third respondent, Helen Therese Glover, take all such steps, perform all such acts and sign all such documents as may be required of her by the Commission within fourteen days of the date of this order to effect the transfer of the registration of the domain name to the Commission.

 

4.         If:

(a)        the first respondent does not transfer the registration of the domain name to the Commission within fourteen days of the date of this order;

 

(b)        the second respondent does not take all such steps, perform all such acts and sign all such documents as may be required of him by the Commission within fourteen days of the date of this order to effect the transfer of the registration of the domain name to the Commission; or

 

(c)        the third respondent does not take all such steps, perform all such acts or sign all such documents as may be required of her by the Commission within fourteen days of the date of this order to effect the transfer of the registration of the domain name to the Commission,

 

the Commission is authorised pursuant to O 37 r 3 of the Federal Court Rules to take all such steps, perform all such acts or sign all such documents as may be required to enable the registration of the domain name to be transferred to it.

 

5.         Upon the transfer of the registration of the domain name to the Commission, the Commission may place on the worldwide web at a site accessed through the domain name a notice in accordance with the provisions of Schedule “A” to this order.

 

6.         The second respondent file in the Court and serve on the Commission within seven days of the date of this order an affidavit sworn or affirmed by him verifying the assets he has in his possession, power, custody or control.

 

7.         The second respondent be imprisoned for a period of one month in respect of his contempt of court in breaching par 4 of the order of the Court made on 6 August 2001 by failing to place on the website www.purple‑plates.com within fourteen days of the date of the said order, or at all, an automatically generated active pop‑up window or message box that complied with the contents, requirements and format described in Schedule B to the said order.

 

8.         The third respondent be imprisoned for a period of one month in respect of her contempt of court in breaching par 4 of the order of the Court made on 6 August 2001 by failing to place on the said website within fourteen days of the date of the said order, or at all, an automatically generated active pop‑up window or message box that complied with the contents, requirements and format described in Schedule B to the said order.

 

9.         A warrant for the second respondent’s committal to prison for a period of one month issue.

 

10.       The said warrant lie in the Registry with the intent that it not be executed provided that the second respondent:

 

(a)        takes all such steps, performs all such acts and signs all such documents as may be required of him by the Commission within fourteen days of the date of this order to effect the transfer of the domain name to the Commission;

 

(b)        refrains for two years from the date of this order from publishing, distributing, transmitting, displaying or broadcasting material which contains representations in the form or to the effect of the representations set out in par 1 of the order of the Court made on 6 August 2001 and also refrains for two years from the date of this order from being knowingly involved in the publishing, distributing, transmitting, displaying or broadcasting of material which contains such representations by any other person; and

 

(c)               files in the Court and serves on the Commission within seven days of the date of this order an affidavit sworn or affirmed by him verifying the assets he has in his possession, power, custody or control.

 

11.       A warrant for the third respondent’s committal to prison for a period of one month issue.

 

12.       The said warrant lie in the Registry with the intent that it not be executed provided that the third respondent:

 

(a)        takes all such steps, performs all such acts and signs all such documents as may be required of her by the Commission within fourteen days of the date of this order to effect the transfer of the domain name to the Commission; and

 

(b)        refrains for two years from the date of this order from publishing, distributing, transmitting, displaying or broadcasting material which contains representations in the form or to the effect of the representations set out in par 1 of the order of the Court made on 6 August 2001 and also refrains for two years from being knowingly involved in the publishing, distributing, transmitting, displaying or broadcasting of material which contains such representations by any other person.

 

13.       The respondents pay to the Commission any expenses incurred by it in relation to the orders made in pars 1, 2, 3, 4 and 5 of this order.

 

14.       The respondents pay the Commission’s costs of and incidental to the Commission’s motion dated 15 October 2002 and filed 16 October 2002.

 

15.       Liberty is reserved to all parties to apply for such further or other orders as they may be advised in relation to the implementation and carrying into effect of this order.

 

 

 

 

 

 

 

 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

 

SCHEDULE “A”

1.         The notice:

 

(a)        shall be legible and the type shall be at least 12 point, Times New Roman font and right and left justified;

 

(b)        shall have a bold type prominent heading in at least 18 point;

 

(c)        shall display the Purple Harmony Plates company logo at the top;

 

(d)        shall appear in an automatically generated active pop‑up window or message box, whereby a member of the public is required to interact with the window or message box to close it;

 

(e)        shall not be less than 50% of the size of the computer screen; and

 

(f)         shall appear immediately upon access by a consumer to the homepage of the website www.purple‑plates.com and shall provide a hotlink to the website address http://www.accc.gov.au

 

2.         The notice shall be in the following terms:

 

 

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 866 of 2000

 

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	PURPLE HARMONY PLATES PTY LIMITED (ACN 077 965 587) First Respondent   NEAL ARTHUR LYSTER Second Respondent   HELEN THERESE GLOVER Third Respondent
JUDGE:	GOLDBERG J
DATE:	29 NOVEMBER 2002
PLACE:	MELBOURNE

 

REASONS FOR JUDGMENT

1                     The applicant (“the Commission”) has filed a motion seeking orders against the respondents arising out of their failure to comply with an order made by the Court on 6 August 2001 and the failure of the second respondent (“Mr Lyster”) and the third respondent (“Ms Glover”) to comply with an order made by the Court on 9 April 2002 in which a declaration was made that they were guilty of contempt of court and each was ordered to pay a fine of $10,000 within sixty days of the date of that order.

2                     On 6 August 2001 I published my reasons for judgment in this proceeding in which I found that the first respondent, Purple Harmony Plates Pty Limited (“the company”), had contravened s 52 of the Trade Practices Act 1974 (Cth) (“Trade Practices Act”) by making misleading representations in relation to certain products which it offered for sale:  Australian Competition and Consumer Commission v Purple Harmony Plates Pty Limited [2001] FCA 1062.  I also found that Mr Lyster and Ms Glover were involved in those contraventions. 

3                     On 6 August 2001, I made the following orders:

“1.       The first respondent be restrained, whether by itself, its servants or agents or any of them or otherwise howsoever, from publishing, distributing, transmitting, displaying or broadcasting material which contains representations:

 

(a)       in relation to the product known and described as the large Purple Harmony plate that:

 

(i)             the plate has an energy field of approximately 2.5 metres around it that negates the effects of the electrified and frequency toxic environment and treats the sub‑particles of electromagnetic and other frequencies, reducing the effect on human bodies, thereby lowering bodily stress and fatigue levels;

(ii)           placing the plate beneath a computer monitor counters the effects of Electromagnetic Radiation (‘EMR’) and reduces fatigue;

(iii)         the plate will negate the effects of re‑radiated and electromagnetic frequencies;

(iv)         the plate will clear and energise fruit and vegetables, restoring their natural vitality;

(v)           the plate will calm people, making them more receptive to treatment by health practitioners;

(vi)         the plate has a beneficial effect on health, accelerates healing and lessens or cures pain;

(vii)       the plate creates a positive energy field around it that is very beneficial to all life, plant, animal or human;

(viii)     the plate raises personal energy levels and protects against EMR in the environment and from EMR producing equipment, such as computers, televisions, mobile phones;

 

(b)       in relation to the product known and described as the small Purple Harmony plate that:

 

(i)             the plate has an energy field of approximately 50 centimetres around it that negates the effects of the electrified and frequency toxic environment and treats the sub-particles of electromagnetic and other frequencies, reducing the effect on human bodies, thereby lowering bodily stress and fatigue levels;

(ii)           the plate will negate the effects of re-radiated and electromagnetic frequencies;

(iii)         the plate has a beneficial effect on health, accelerates healing and lessens or cures pain;

(iv)         the plate creates a positive energy field around it that is very beneficial to all life, plant, animal or human;

(v)           the plate raises personal energy levels and protects against EMR in the environment and from EMR producing equipment, such as computers, televisions, mobile phones;

 

(c)       in relation to the product known and described as the Purple Harmony disk that:

 

(i)             wearing the purple harmony disk over the thymus gland directly helps to strengthen the immune system;

(ii)           the disk enables the human body to cope better with the electrified and toxic environment;

(iii)         the disk will increase a person’s general health;

(iv)         the disk will cause aches, pains, niggly coughs and colds to be less severe;

(v)           the disk can be used to treat cuts, burns, aches and pains, water, foods and all the things that Purple Harmony plates can be used for;

(vi)         the disk reduces the effects of harmful electromagnetic and other frequencies on human bodies;

(vii)       the disk will decrease stress levels on the human body and strengthen the immune system;

(viii)     the disk will negate the effects of re-radiated and electromagnetic frequencies;

 

(d)       in relation to the product known and described as the Purple Harmony angel that:

 

(i)             the angel will strengthen the immune system;

(ii)           the angel can be used to treat cuts, burns, aches and pains, water, goods and all the things that Purple Harmony plates can be used for;

 

(e)       in relation to the product known and described as the Purple Harmony mobile phone disk that placing a mobile phone disk to the area nearest to the antenna will reduce all uncomfortable sensations from using a mobile phone, such as ‘hot spots’, jaw and/or teeth problems, headaches and/or earaches, tinnitus or nausea;

 

(f)        in relation to the product known and described as the Purple Harmony green thumb that:

 

(i)             holding one or two green thumbs for twenty minutes a day will energise your body system;

(ii)           the green thumb will re-oxygenate water, giving it more life force energy to benefit all living organisms;

(iii)         use of the green thumb will result in plants growing with vim and vigour;

(iv)         by placing the green thumbs in a bucket or jug of water, the green thumbs will treat water, whereby the water will taste, smell and feel, and be so much better for the user;

(v)           attaching three green thumbs to any power cord will treat the electromagnetic frequencies emanating from gadgets and result in reduced stress levels;

 

(g)        that the product known and described as the fuel ionizer system:

 

(i)           ionizes the fuel cars use;

(ii)         creates more power from complete burning of fuel;

(iii)       produces cleaner engines and injectors;

(iv)       reduces emissions;

(v)         gives better mileage and reduces fuel consumption;

(vi)       enables quicker starting of engines;

(vii)     will lead to less shifting of gears with heavy loads;

(viii)   produces useable energy;

 

(h)       that the products known and described as the Hunza water ionizer system/Hunza living-energy water system – gold Hunza and blue Hunza products:

 

(i)            re-oxygenate water;

(ii)          energise water;

(iii)        improve water quality;

(iv)        free water of odour and chlorine;

and that the Blue Hunza will last indefinitely;

 

(i)        that the product known and described as the Hunza swimming pool ionizer:

 

(i)            has similar beneficial effects to the Hunza water ionizer, however, it is much more powerful;

(ii)          reduces the use of chemicals required to maintain correct pool pH;

(iii)        decreases the effect of those chemicals on hair, skin and eyes;

 

(j)        that the product known and described as the Purple Harmony fridge freshener:

 

(i)            lowers the refrigerator temperature;

(ii)          makes food last between two to four times longer than usual;

(iii)        removes odours;

(iv)        reduces energy costs;

(v)          reduces the running costs of a refrigerator;

(vi)        saves energy;

(vii)      is a long lasting product;

(viii)    eliminates the effects of EMR from computers;

(ix)        reduces stress and fatigue;

2.         The second and third respondents be restrained from being in any way directly or indirectly, knowingly concerned in, or party to, publishing, distributing, transmitting, displaying or broadcasting material containing any of the representations referred to in paragraph 1 of this order.

3.         The respondents, within fourteen days of the date of this order, at their own expense, send or cause to be sent by mail a letter to all customers who have purchased any of the products from the first respondent in the form set out in Schedule A to this order.

4.         The respondents, within fourteen days of the date of this order, place on the Internet website at ‘www.purple-plates.com’, and maintain for a period of three months thereafter, an automatically generated active pop-up window or message box that complies with the contents, requirements and format described in Schedule B to this order.

5.         The first respondent refund in full on request by a customer all monies paid by customers for the supply or possible supply of the products.

6.         The respondents file and serve on the applicant by 31 August 2001 an affidavit verifying that they have carried out their obligations under pars 3 and 4 of this order.

7.         The respondents pay the applicant’s costs of the application and the applicant’s costs of giving notice under s 78B of the Judiciary Act 1903 (Cth).”

 

(“the 6 August order”).

Schedule B to the order was in the following terms:

“The first, second and third respondents will cause to be published on the website at www.purple‑plates.com a corrective statement in the following form:

 

1.         The corrective statement will be required to be legible and the type will be at least 12 point, Times New Roman font and right and left justified;

 

2.         The corrective statement will have a bold type prominent heading at least 18 point;

 

3.         The corrective statement will contain the Purple Harmony Plates company logo at the top.

 

4.         The corrective statement will appear in an automatically generated active pop‑up window or message box, whereby a member of the public is required to interact with the window or message box to close it;

 

5.         The corrective statement should not be less than 50% of the size of the computer screen; and

 

6.         The corrective statement should appear immediately upon access by a consumer to the homepage and the page containing the order form on the first respondent’s website.”

 

4                     A copy of the 6 August order was served on each of the respondents.  Each of them failed to comply with the 6 August order.  Relevantly, for present purposes: 

·                    they have failed to send the letter to customers referred to in par 3 of the 6 August order;

 

·                    they have failed to place and maintain an automatically generated active pop‑up window or message box on the internet website www.purple‑plates.com in accordance with par 4 of the 6 August order;

 

·                    they have failed to file and serve an affidavit verifying that they have carried out their obligations under pars 3 and 4 of the 6 August order.

 

5                     Further, for a period of time up to a date in September 2001 the company continued to make representations substantially to the same effect as those set out in par 1 of the 6 August order.  Sometime prior to 24 September 2001 a link to a new internet website at www.purple‑harmony‑plates.com was added to the website.  The contents of each website was identical in that representations in contravention of par 1 of the 6 August order were displayed on both websites. 

6                     On 27 November 2001 access by an officer of the Commission to each of the websites disclosed that the contents of the websites (including the representations which had previously been made in contravention of par 1 of the 6 August order) had been removed, except for the statement “Purple Harmony Plates International – Due to circumstances beyond our control this site will be closed until further notice.”  On 30 November 2001 a search conducted by an officer of the Commission in respect of the two websites showed that the front pages of both websites were last modified on 24 October 2001.

7                     On 10 October 2001 the Commission filed a motion charging the respondents with contempt of court, being their failure to comply with the 6 August order.  On 9 April 2002 I found that the respondents were guilty of contempt of court and made the following orders:

“3.       The first respondent pay a fine of $20,000 to the District Registrar of the Court within sixty days of the date of this order.

 

4.         The second respondent pay a fine of $10,000 to the District Registrar of the Court within sixty days of the date of this order.

 

5.         The third respondent pay a fine of $10,000 to the District Registrar of the Court within sixty days of the date of this order.

 

6.         The respondents pay the applicant’s costs of and incidental to the motion filed 10 October 2001.

 

7.         Liberty is reserved to all parties to apply for such further or other orders as they may think fit.”

 

(“the 9 April order”).

8                     Copies of the 9 April order were served on each of the respondents.  The 9 April order was served on the company at its registered office situated at 20 Davis Street, Kew. 

9                     On 24 July 2002 the solicitor for the Commission wrote to the respondents notifying each of them that they had failed to comply with the 6 August order and the 9 April order.  The solicitor informed each of the respondents that, notwithstanding the making of the 9 April order, they were still obliged to comply with the terms of the 6 August order.  The letters were delivered by courier and although Mr Lyster accepted the letter addressed to him, he refused to accept the letter addressed to the company.  Accordingly the letter was left at the business address of the company at 20 Davis Street, Kew.  On 16 August 2002 that letter was returned to the Commission’s solicitor marked “return to sender”.

10                  On 16 August 2002 the Commission conducted a search of the records of the company maintained by the Australian Securities and Investments Commission (“ASIC”) which search disclosed that the company had been deregistered on 18 February 2002 by ASIC pursuant to s 601AB of the Corporations Act 2001 (Cth) (“Corporations Act”).

11                  On 19 August 2002 the Commission conducted a search in respect of the domain name www.purple‑plates.com which disclosed that the registrar of the domain name was Network Solutions Inc, that the registrant of the domain name was the company and that the administrative contact in respect of the domain name was Mr Lyster.

12                  The matter was brought on for mention before me on 20 August 2002 as I was concerned to ascertain what was the then current position as to compliance with the earlier orders I had made.  By that stage the Commission had ascertained that the company had been deregistered.  A consequence of that deregistration was that all the property of the company vested in ASIC pursuant to s 601AD of the Corporations Act.  At the hearing on 20 August 2002 counsel for the Commission indicated that the Commission’s view was that, as the company’s licence to use its website vested in ASIC, ASIC had the power conferred by s 601AF of the Corporations Act to act on behalf of the company if it was satisfied that the company would be bound to do an act if the company still existed.  The Commission’s view at that time was that it was open to ASIC to comply with the 6 August order and establish a pop‑up window on the internet website displaying the corrective advertisement.  The Commission foreshadowed that it would seek orders, if necessary, against ASIC for ASIC to carry out the acts ordered on 6 August 2001 and that application would accordingly be made for such orders pursuant to O 37 r3 of the Federal Court Rules.  The Commission therefore proposed to put ASIC on notice that it would make an application by way of notice of motion if ASIC was not willing to carry out the orders which the company was bound to perform.

13                  In relation to the failure of Mr Lyster and Ms Glover to comply with the 9 April order for the payment of fines, the Commission indicated that it would ascertain the position of the Commonwealth Attorney‑General as to whether he proposed to take proceedings to enforce the order for payment of those fines. 

14                  On that occasion, as at earlier hearings, Mr Lyster and Ms Glover contended they were not subject to the jurisdiction of the Court.  I found in my reasons of 6 August 2001 that they were subject to the jurisdiction of the Court.  The 6 August judgment and order has not been the subject of any appeal. 

15                  The matter was adjourned for further mention to 24 September 2002. 

16                  On 23 September 2002 the Commission filed a motion seeking orders that:

(a)        the company take all necessary steps to transfer the registration of the domain name in respect of the website www.purple‑plates.com to the Commission;

 

(b)        Mr Lyster remove his name as administrative contact for the domain name and replace it with the name of a specified solicitor of the Commission;

 

(c)        Mr Lyster file and serve an affidavit verifying that the company had taken all necessary steps to transfer the registration of the domain name in respect of the website www.purple‑plates.com to the Commission within seven days of the domain name being transferred;

 

(d)        in the event that the company did not transfer the domain name, the Commission be authorised pursuant to O 37 r3 of the Federal Court Rules to take all necessary steps to have the domain name transferred to it;

 

(e)        in the event that Mr Lyster did not file and serve an affidavit verifying that the company had taken all necessary steps to transfer the registration of the domain name in respect of the website www.purple‑plates.com to the Commission within the period of time stipulated, the Commission be authorised pursuant to O 37 r3 of the Federal Court Rules to take all necessary steps to have Mr Lyster’s name removed as the administrative contact of the domain name and replaced by that of the specified solicitor for the Commission.

 

(f)         the Commission be authorised to place on the worldwide web at a site accessed by the domain name a corrective advertisement in terms of par 4 of the 6 August order.

 

17                  At the further mention on 24 September 2002 evidence was led by the Commission in respect of the following matters:

·                    the registrar for the domain name was now Verisign Inc;

 

·                    the Commission had applied to ASIC to reinstate administratively the company to enable the Court to make orders in relation to it;

 

·                    ASIC had reinstated the company as a registered corporation on the basis that the Commission would notify ASIC when it no longer had any cause to require the company to be registered;

 

·                    the Commission had discovered on 23 September 2002 that when an officer attempted to access the website www.purple‑plates.com, the computer displayed a message which stated “The required URL could not be retrieved”;

 

·                    the Commission had received a letter from the Commonwealth Attorney‑General stating that he did not propose to become involved in the proceeding and that the matter of the enforcement of the order for the payment of the fines was a matter for the Commission;

 

18                  At the mention Mr Lyster and Ms Glover agreed, in response to my enquiry, to file an affidavit verifying their assets.

19                  On 24 September 2002 I made the following orders:

(1)        within 21 days Mr Lyster and Ms Glover file and serve an affidavit verifying what assets and property each of them had in their possession, power, custody or control;

 

(2)        within 21 days the Commission file and serve notice of any application it wished to make or orders it submitted that the Court should make consequent upon the failure of the respondents to comply with the earlier orders;

 

(3)        the Commission’s notice of motion filed on 23 September 2002 be adjourned for further hearing.

 

20                  On 15 October 2002 Ms Glover filed an affidavit in which she set out the following matters and circumstances:

·                    she had resigned as a director of the company on 14 October 2002;

 

·                    on 6 August 2001 her position with the company was to carry out administrative functions and she had nothing to do with the internet website of the company, nor did she have any authority to operate the bank account of the company;

 

·                    since 6 August 2001 she had not been party to any publishing, distributing, transmitting, displaying or broadcasting of material referred to in par 1 of the 6 August order and had no financial resources which would enable her to comply with par 5 of the 9 April order;

 

·                    she wished to comply with any orders made by the Court to the extent she was able to do so;

 

·                    her assets comprised clothing, personal effects, several items of furniture of little value and a thirteen year old car.  She had debts of approximately $6,000 and was employed as a clerical assistant earning less than $500 net per week.

 

21                  Mr Lyster did not comply with the direction for the filing of an affidavit setting out the assets and property in his possession, power, custody or control.

22                  On 16 October 2002 the Commission filed a notice of motion which, in general terms, sought the following relief:

(a)        an order that the company take all necessary steps as directed by the Commission to transfer the registration of the domain name in respect of the website www.purple‑plates.com to the Commission;

 

(b)        in the event that the company did not so transfer the domain name, an order that the Commission be authorised pursuant to O 37 r3 of the Federal Court Rules to take all necessary steps to have the domain name transferred to it;

 

(c)        in the event the domain name was transferred to the Commission, an order that the Commission be authorised to place on the worldwide web at a site accessed via the domain name a corrective advertisement that complied with the content requirements and format described in the schedule to the motion;

 

(d)        an order that Mr Lyster be imprisoned for two months in respect of the contempts of court constituted by wilfully refusing to pay the fine of $10,000 provided for in the 9 April order and breaching pars 2 and 4 of the 6 August order;

 

(e)        a warrant for the committal of Mr Lyster to prison for a period of two months issue for his contempts of court;

 

(f)         an order that Mr Lyster take all necessary steps, as directed by the Commission, to secure the transfer of the registration of the domain name www.purple-plates.com from the company to the Commission;

 

(g)        an order that Ms Glover be imprisoned for a period of two months in respect of her contempts of court constituted by wilfully refusing to pay the fine of $10,000 ordered on 9 April 2002 and breaching pars 2 and 4 of the 6 August order;

 

(h)        a warrant for the committal of Ms Glover to prison for two months issue for her contempts of court but that the warrant lie in the Registry and not be executed provided that she took all necessary steps as directed by the Commission to secure the transfer of the registration of the domain name from the company to the Commission and refrain from contravening any of the provisions of Pt V of the Trade PracticesAct or being knowingly involved in such contravention by anyone else for a period of two years;

 

(i)         the respondents pay any expenses incurred by the Commission in implementing the orders and pay its costs.

 

23                  In accordance with O 40 r6 of the Federal Court Rules, the Commission filed a statement of charge in respect of Mr Lyster and Ms Glover specifying the contempt alleged against each of them as being:

(a)        disobedience and continued disobedience of the 6 August order;

(b)        disobedience of the 9 April order in respect of their refusal or neglect to pay the fine of $10,000.

 

Attitude of the respondents

24                  On 24 September 2002, Ms Glover filed a letter which was addressed to me and written by a lawyer.  Ms Glover asked me to read the letter on the basis that it was her submission to the Court.  The letter stated that Ms Glover now understood that orders of the Court were binding on her and that she did not wish to be seen to be defying the Court or detracting from its authority.  The letter stated that Ms Glover had indicated that she would do everything that was required by the Court to comply with any orders that might be made against her.  The letter stated “Miss Glover wishes to apologise fully and unreservedly to the Court”, that Ms Glover’s financial resources were exiguous, that she had an old car and some personal items and did not have sufficient assets to pay the fine of $10,000.  The letter requested that the fine be vacated.

25                  No such letter or similar apology was filed, or made, by or on behalf of Mr Lyster.

26                  Ms Glover filed a further affidavit on 22 October 2002 in response to the Commission’s motion in which she denied that she wilfully refused to pay the fine of $10,000 because, as appeared from her earlier affidavit, she did not have the means of paying that amount.  Ms Glover also said that from 6 August 2001 she had not been involved in publishing any of the representations in contravention of par 2 of the 6 August order as from that date she had not taken any part in the activities of the company except that for a short time she had been carrying out minor administrative acts.  Ms Glover also said that she never at any time had authority or power to change the content of the internet website or to transfer the registration of the domain name.  Ms Glover was not challenged on the contents of her affidavit.

27                  Mr Lyster filed an affidavit on 24 October 2002 in which he contended that my judgment, which I took to be a reference to the 6 August order, was of no effect.  The affidavit is discursive and difficult to comprehend, but I take Mr Lyster to be asserting that I had no jurisdiction to make the orders on 6 August 2001 and 9 April 2002.  Mr Lyster maintained that he was the Head of State of the Principality of Caledonia, and that his title was:

“H.R.H. Prince Neal Arthur Lyster©

(i)        Prince Palatine of the Kingdom of Heaven and Earth,

(ii)       Bishop of St David’s Diocese Southern Cross appointed by Hereditary Constable Foley in keeping with the Customs and traditions of the Church in Wales,

(iii)      Governor of H.M. Government of the Commonwealth of Caledonia Australis”.

The address of Mr Lyster shown on his affidavit was stated to be “20 Davis Street, Kew, the Principality of Caledonia, Australia 3101”.  He contended that he was not subject to the jurisdiction of the Court and that he had been advised by a person who he described as “Ab Beth Din” that my previous judgments were unconstitutional and null and void.  He asserted that effect is not given to the decision of a judge delivered in excess of his or her jurisdiction. 

 

28                  Mr Lyster contended in his affidavit that there were decisions of two courts which supported his submission that I did not have jurisdiction to entertain the claims made by the Commission against him.  Mr Lyster tendered as an exhibit a “Conditional notice of intention to defend” in the Magistrates’ Court at Ipswich, Queensland in which the Ipswich City Council was the plaintiff.  Mr Lyster appeared to be saying that the document was an order or judgment of the court, but it is not. 

29                  Mr Lyster also relied upon the decision of Cooper J in Gunter v Hollingworth [2002] FCA 943.  In that case the applicant filed a petition in the High Court of Australia sitting as the Court of Disputed Returns.  The petition related to the general election for the House of Representatives and half of the Senate held on 10 November 2001.  The petition was referred by the High Court for trial to the Federal Court in the Queensland District Registry.  The Australian Electoral Commission, which was a respondent to the petition, filed a summons seeking that the petition be dismissed on the grounds that:

·                    the Court of Disputed Returns had no jurisdiction to entertain the petition as it sought relief on the ground that the entirety of the general election was void;

 

·                    by virtue of s 358(1) of the Commonwealth Electoral Act 1918 (Cth) no proceeding could be had on the petition as it did not comply with s 355(1) of the Commonwealth Electoral Act 1918 (Cth) because it failed to set out facts which would invalidate any election or return.

 

Cooper J was satisfied that both grounds of objection had been made out and that the petition should be dismissed. 

 

30                  Two of the respondents to the petition claimed to appear as citizens of the Independent Sovereign State of Australia.  They apparently contended that they were not citizens of the Commonwealth of Australia and they supported the petition.  They also sought orders to the effect that, as citizens of the Principality of Acworth, they were not citizens of the Commonwealth of Australia and were exempt from observing a number of statutory provisions applicable to citizens of the Commonwealth of Australia.  Mr Lyster appeared to submit that Cooper J accepted this contention or submission.  Cooper J did not do so.  In relation to those particular respondents, as well as other respondents in the proceeding, Cooper J was concerned with, inter alia, the situation whether a person who was not entitled to vote at a particular election had the right to appear on a petition challenging such election and to be made a party to it.  The reasons for judgment of Cooper J do not support the proposition for which Mr Lyster contended.

31                  I reject Mr Lyster’s submission that my previous judgments were unconstitutional and null and void and I reject the proposition that I have acted in excess of jurisdiction and that effect is not to be given to my earlier judgments and orders.  I reject Mr Lyster’s contention that he is a Head of State, holds the positions or titles for which he contends and that he is not subject to the jurisdiction of the Court.  I am satisfied that I had the power and the jurisdiction to make the earlier orders on 6 August 2001 and 9 April 2002.  In any event, the Federal Court of Australia is a superior court of record and an order of a superior court made erroneously or in excess of jurisdiction is merely voidable and remains valid and enforceable until set aside:  Cameron v Cole (1944) 68 CLR 571; Re Wakim; Ex parte McNally (1999) 198 CLR 511; Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 620; Matthews v Australian Securities & Investments Commission (2000) 97 FCR 396 at 401; Australia and New Zealand Banking Group Ltd v Merribee Pastoral Industries Pty Ltd (1998) 84 FCR 367 at 380.  No appeals have been brought from my earlier judgment and orders.

Should an order be made for the transfer of the registration of the domain name in respect of the website www.purple‑plates.com?

32                  I was concerned to ensure that any order I made transferring the registration of the domain name to the Commission would not prove futile. To that end the Commission led evidence to establish the feasibility of the orders sought in relation to the registration of the domain name so as to enable compliance with the 6 August order, namely the placing on the website of an automatically generated pop‑up window displaying the corrective statement.

33                  I am satisfied that the orders sought by the Commission in relation to the transfer of the website to it will be effective to enable it to achieve compliance with par 4 of the 6 August order.  Although the officer of the Commission who sought to access the website was met with the display that “The required URL could not be retrieved”, it is possible to have that uniform resource locator re‑established so that access can be given to the website.  The registrar for the “.com” top-level domain name is Verisign Inc.  An officer of the Commission has been informed by Verisign Inc that it would recognise an order from the Court that the domain name www.purple‑plates.com be transferred from the current registrant, the company, to the Commission so long as Verisign Inc is not named as a party in the order.  It is not necessary to name Verisign Inc as a party in any proposed order as the order is directed to the transferring party, namely the registrant, and not the registrar, namely Verisign Inc.  Verisign Inc has indicated that if the Court orders the current registrant to transfer the domain name it would effectuate the transfer without any communication from the registrant.

34                  Verisign Inc maintains the registry for the top level domain name “.com” and as registrar for that domain name it maintains the database containing the domain names that have been registered within the “.com” domain together with contact detail of each domain name registrant.  It also maintains the authoritative nameservers for the “.com” domain. 

35                  As the registrant of the domain name www.purple‑plates.com, the company has control over the use of the domain name on the internet which cannot be used by anyone else.  As registrant, the company has the right to instruct the registrar, Verisign Inc, to transfer the domain name to another person and the administrative contact, in this case Mr Lyster, has the authority and the right to instruct Verisign Inc to transfer the registration of the domain name www.purple‑plates.com to another person. 

36                  The Commission led evidence from persons experienced in the field of the management and administration of the internet that the registrant of a website can change the unique internet address, the internet protocol (“IP”) number, at any time.  If there is no IP number currently associated with a domain name, the error message “The required URL could not be retrieved” is displayed.  In order for the website to become accessible to users it is necessary that a new host computer or server be nominated to display the website and its content.  If the registration of the domain name is transferred to the Commission, the Commission would obtain exclusive rights to the domain name and could designate the location of a new host computer or server as a result of which the domain name would connect to a website containing the corrective statement.

37                  Until it was deregistered, the company took no steps to comply with any of the orders made on 6 August 2001.  Paragraph 4 of the 6 August order which provided for publication of the notice on the company’s website was intended to alert persons who had purchased products from the company, or who had contemplated such purchases, that representations made as to those products were misleading and deceptive. 

38                  In par [33] of my reasons for judgment on 6 August 2001 I said:

“I consider that this case is one in which it is appropriate to order corrective advertising.  I take into account the period during which the representations have appeared on the website, the subject‑matter of the representations and the fact that they relate to the ability of the products to resolve health problems and help people with their personal well‑being.”

That order was made in the public interest and for the purpose of enhancing the awareness of persons who had been exposed to the representations made in relation to the products marketed, offered for sale and sold by the company.

 

39                  It is important in the present case that the order for the corrective statement be carried into effect.  Not only is it important because it is an order of the Court that should be observed but it is also important for the purpose of alerting persons to the misleading nature of the representations which have been made.  It is therefore appropriate that the company, now restored to the register, be ordered to transfer the registration of the domain name to the Commission to enable the Commission to publish the corrective notice.

40                  It appears that the company is now without directors.  Ms Glover resigned as a director on 14 October 2002.  Mr Lyster, in the course of argument, submitted that he had also resigned as director and he tendered a document which purported to be a resignation dated 19 January 2001.  It did not appear that that notice had been lodged or filed with ASIC.  It may well be that there is no‑one now presently in control of the company who is prepared, or able on its behalf, to comply with an order for the transfer of the registration of the domain name.  However, Ms Glover said she still remains the sole shareholder in the company.

41                  Nevertheless, I consider it appropriate to make an order that the company transfer the registration of the domain name to the Commission as a prelude to the exercise of power under O 37 r3 of the Federal Court Rules to order that the Commission undertake the transfer of the domain name.  Order 37 r3 provides:

“(1)     Where a judgment or order requires the person bound to do an act and the person bound does not do the act, the Court may:

 

(a)        direct that the act be done by a person appointed by the Court; and

(b)        order the person bound to pay the costs incurred pursuant to the direction.

 

(2)       Sub‑rule (1) does not affect any other mode of enforcement of the judgment or order, or the powers of the Court to punish for contempt.”

I consider it appropriate to make an order that, if the company does not transfer the domain name to the Commission within seven days of an order to that effect, the Commission be authorised to take all necessary steps to have the domain name transferred to it.  However, that transfer should be for the limited purpose of enabling the Commission to place on the worldwide web at the site accessed through the domain name a corrective statement substantially in the terms of Sch B to the 6 August order.  The form of the proposed statement differs from the form in the schedule to the 6 August order.  The initial form included the following words:

 

“Any customer who purchased any of the products and believes they were misled by claims made about any of the products may contact us and arrangements will be made to provide a full refund of the purchase price.  Customers can contact us at:

 

[Insert contact details here]”

These words have been deleted from the form of the statement now proposed by the Commission in the light of the reasoning in Medibank Private Ltd v Cassidy [2002] FCAFC 290.

 

42                  It may well be that by ordering the company to transfer the registration of the domain name to the Commission I am ordering the company to do an act outside the jurisdiction, that is to say outside the geographic boundaries of the Commonwealth of Australia, as what is required is a direction or instruction to Verisign Inc, the registrar of the top level domain name “.com”.  Alternatively, the order might be viewed as an order directing the company to transfer a licence granted by an entity outside the jurisdiction to the Commission. 

43                  The order sought is in the nature of a mandatory injunction directed to the company which is subject to the jurisdiction of the Court to perform an act.  The Court has power to make such an order by virtue of the grant of power given to the Court in s 23 of the Federal Court of Australia Act 1976 (Cth) and also by reference to the Court’s power to make orders in matters properly before it “as an incident of the general grant to it as a superior court of law and equity of the jurisdiction to deal with such matters”:  Jackson v Sterling Industries Limited (supra) at 623; Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 32; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 393‑396, 399‑401.

44                  It is of no consequence that the order sought against the company relates to property which may be situated outside the jurisdiction as the order is sought in personam.  It has been well‑established for over 200 years that a court has jurisdiction to make an order against a person within the jurisdiction of the court albeit to do an act in respect of property outside the jurisdiction:  Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132.  The principle is based upon the proposition that the court is acting in its equitable jurisdiction in relation to a person within its jurisdiction:  Tritech Technology Pty Ltd v Gordon (2000) 48 IPR 52 at 58.

45                  The relevant principle was stated succinctly by Brooking J in National Australia Bank Ltd v Dessau [1988] VR 521 at 522:

“That a court of equity, acting as it does in personam, may order someone amenable to its jurisdiction to do or refrain from doing an act abroad was established quite early in our history, before even the days of the Boston Tea Party (Penn v Lord Baltimore (1750) 1 Ves. Sen. 444; 27 E.R. 1132).  The jurisdiction is grounded not on any pretension to the exercise of judicial power abroad but on the circumstances that the defendant, being amenable to the Court’s jurisdiction, can be personally directed to act or not to act...”

 

The contempt by Ms Glover

46                  No attempt was made by Ms Glover to comply with any of the obligations ordered to be carried out by her by the 6 August order.  Although she said in her affidavit filed on 22 October 2002 that she had not, since 6 August 2001, been involved in the publishing of any of the representations in contravention of par 2 of the 6 August order and that she had taken no part in any of the activities of the company apart from doing minor administrative acts, the fact is that during the period up until 14 October 2002 she was a director of the company and she said that she remained its sole shareholder.  Although she said she had been unable to place on the website within fourteen days of 6 August 2001 the corrective advertisement ordered by the Court, she led no evidence that she had attempted to do so.  Ms Glover said that she never at any time had authority or power to change the content of the internet website but, again, she was one of the two directors of the company and apparently its sole shareholder at relevant times.  It was certainly within her power to take steps to implement the order of the Court but she did not do so.  It is apparent from the lawyer’s letter upon which she relied that it was only a short time prior to the writing of that letter that she had changed her mind about recognising and accepting the authority and jurisdiction of the Court and about her obligations in relation to the Court’s orders.  Until she received the advice from the lawyer sometime in September 2002, Ms Glover was taking the view that she had no obligation to observe or comply with the orders of 6 August 2001 and 9 April 2002 and that she had no intention of doing so. 

47                  Although Ms Glover said that she had no means of paying the fine of $10,000 imposed on 9 April 2002, I am satisfied beyond reasonable doubt that after that order was made she took the view, until disabused by the lawyer sometime in September 2002, that she was not obliged to comply with the order and should not take any steps to explain to the Court why she could not comply with the order for the payment of the fine.  The position may well be that since she received the advice of the lawyer she has not been wilfully refusing to pay the fine as she does not have the means to do so.  However, during the period of sixty days after 9 April 2002 within which she was to pay the fine and for some three months thereafter, Ms Glover made no attempt to approach the Court to explain her financial circumstances.  That position continued until sometime in September 2002.  I am satisfied beyond reasonable doubt that during that period Ms Glover was wilfully refusing to pay the fine. 

48                  However, Ms Glover has now made an unreserved apology to the Court for her contempts, which apology she repeated in open court.  Ms Glover also made it quite clear during the course of the hearing that she now accepts the authority and jurisdiction of the Court and was not contending that the Court had no jurisdiction to make the orders which it had previously made.

49                  As Sackville J pointed out in Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404 at 411, the court has a wide range of penalties open to it for contempt of court including fines and a sentence of imprisonment and the court also has the power to suspend on condition any sentence of imprisonment it might impose:  see also Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd (Drummond J, 6 November 1998, unreported).

50                  The contempt of court committed by Ms Glover has been serious.  It has a number of components to it and it extended over a period in excess of twelve months.  I adopt with respect the observation of RD Nicholson J in Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949 at [139]:

“It is important that the seriousness of a contempt is brought home to the contemnor and that the contemnor realise that their perceptions do not constitute a licence to ignore court orders or legislation directed to the prohibition of deceptive conduct.” [citations omitted].

RD Nicholson J continued at [141]:

“A sentence for contempt is punitive, to vindicate the authority of the court (Australasian Meat Industry Employees’ Union [v Mudginberri Station Pty Ltd] at 107).  The underlying rationale for every exercise of the contempt power was the necessity to uphold and protect the effective administration of justice.”

 

51                  In effect, until sometime in September 2002, Ms Glover treated the Court orders of 6 August 2001 and 9 April 2002 with disdain and disregard.  She considered she had an option, at her discretion, whether or not to comply with the orders.  It is important that the seriousness of the contempts be made quite clear, and brought home, to Ms Glover.  She obviously had misguided views about her obligations to observe and comply with the authority and orders of the Court.  It is important that the authority of the Court be vindicated when a contempt of it is committed.  Any sentence for contempt is punitive and is calculated and designed to vindicate that authority.

52                  The principle underlying the jurisdiction to commit for contempt was explained by the majority of the High Court (Gibbs CJ, Mason, Wilson and Deane JJ) in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107:

“The theoretical distinction between the two classes [of contempt] overlooks the underlying rationale of every exercise of the contempt power, namely that it is necessary to uphold and protect the effective administration of justice.  Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced.  As the authors of Borrie and Lowe's Law of Contempt, 2^nd ed (1983) say, at p.3:

 

‘If a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.’

…

There is, accordingly, a public interest in the exercise of the contempt power in cases of disobedience to an order …”.

 

53                  In the case of Ms Glover there are mitigating circumstances.  She has now apologised unreservedly to the Court for the contempts which she has committed.  Further, she has made disclosure of her assets and has unreservedly accepted the authority and jurisdiction of the Court.  Were it not for these mitigating circumstances I would have been disposed to make an order of imprisonment for Ms Glover if she continued to refuse to accept the authority and jurisdiction of the Court.

54                  In the course of the hearing I indicated to Ms Glover that I might be disposed to consider staying the execution of any warrant for her committal to prison if she was prepared to take any necessary steps directed by the Commission to secure the transfer of the registration of the domain name from the company to the Commission and if she would refrain from contravening any provisions of Pt V of the Trade Practice Act or be knowingly concerned in the contravention of anyone else of any of the provisions of Pt V of the Trade Practices Act for two years.  This latter condition was sought by the Commission.  Ms Glover indicated that she was prepared to take such steps and refrain from such conduct. 

55                  In all the circumstances I consider that it is appropriate to order a sentence of one month’s imprisonment for Ms Glover but to suspend the implementation of that order so long as Ms Glover takes all necessary steps as directed by the Commission to secure the transfer of the registration for the domain name from the company to the Commission.  Although Ms Glover said she had no power or authority to transfer the registration of the domain name, the fact remains that she was a director of the company at relevant times and said that she is still the sole shareholder in the company.  I am not sure what documents, consents or authorities may be required of her by the Commission in order to transfer the registration of the domain name but it is appropriate that she be required to cooperate with the Commission in that respect.

56                  I am not prepared to make it a condition of the suspension of the carrying into effect of the warrant for her committal that she be required to refrain from contravening “any” of the provisions of Pt V of the Trade Practices Act.  The contraventions in respect of which she was a party were those specified in the 6 August order.  Although Drummond J made an order in the terms sought by the Commission in Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd (supra), I consider it desirable that any conduct required to be undertaken by a party in order to avoid the activation and carrying into effect of a warrant for that person’s committal to prison should be in clear and precise terms.  It should be made quite clear what is the precise conduct which is to be avoided and I am not satisfied that an order requiring Ms Glover to refrain from contravening any of the provisions of Pt V of the Trade Practices Act is adequate or appropriate for that purpose.  I consider that a more appropriate order is one requiring Ms Glover to refrain from making any of the representations referred to in par 1 of the 6 August order and to refrain from being knowingly concerned in the making of any of those representations by any other person.

57                  I do not consider that the failure of Ms Glover to pay the fine ordered to be paid on 9 April 2002 should lead to her being imprisoned.  She has belatedly apologised to the Court for her earlier attitude and has demonstrated an inability to pay the fine.  In those circumstances, it is not appropriate to order that she be imprisoned for failure to pay the fine.  There are other avenues for the Commission to pursue in relation to the enforcement of the order for the payment of the fine such as sequestration.

The contempt by Mr Lyster

58                  Unlike Ms Glover, Mr Lyster has made no apology to the Court and has been quite unrepentant.  He does not recognise the authority or jurisdiction of the Court and does not regard himself as required to perform any obligations imposed upon him by order of the Court.  Notwithstanding the findings I made in my reasons for judgment on 6 August 2001, Mr Lyster continues to maintain that he is not subject to the authority or jurisdiction of the Court and is entitled to disregard the Court’s authority and jurisdiction because in some manner he has seceded from the Commonwealth and has established the Principality of Caledonia.  He Is under a misapprehension in this respect.  No appeal was taken from either of my judgments or orders on 6 August 2001 or 9 April 2002.  Mr Lyster indicated during the course of the hearing that he was proposing to apply to the Full Court for leave to appeal from the 6 August order but no application for leave to appeal has been filed.  Even if such an application for leave to appeal had been filed I would not have been disposed to have stayed the order which I propose to make pending the determination of any such leave application as I regard such an application as having no prospect of success.

59                  Mr Lyster has shown no remorse for his contempt.  He has deliberately and wilfully breached the orders of 6 August 2001 and 9 April 2002 in the misguided belief that he is above the law and not subject to the authority or jurisdiction of the Court.  His failure to comply with the order of 6 August 2001 has continued after 9 April 2002.  Mr Lyster was not disposed to comply with my direction that he file an affidavit setting out his assets and property and I am satisfied, beyond reasonable doubt, that he has wilfully and deliberately refused to comply with my orders.  Further, after 9 April 2002 he continued to refrain from taking any steps to place or procure the placement of the corrective statement on the website as he had been ordered to do.

60                  Ordinarily, in such circumstances I would be disposed to order a term of imprisonment for Mr Lyster and direct that a warrant for his committal to prison be issued and executed forthwith.  However, having listened to Mr Lyster on a number of occasions I am satisfied that he lacks a full appreciation of the seriousness of the position in which he now finds himself.  I am satisfied that he does not appreciate fully that he is subject to two Court orders which require him to carry out certain acts and that if he does not comply with them it is open to the Court to order that he be committed to prison for a period of time.  However I take into account the fact that he has not been legally represented and does not appear to have had access to competent legal advice.  Mr Lyster is labouring under a delusion that he is the head of state of a non-existent state and that his conduct is beyond the reach of the laws of Australia.  Mr Lyster should realise he is quite wrong in this respect.  He is obliged to comply with the laws of Australia and orders of the Federal Court of Australia.

61                  In the interests of justice I consider that the appropriate course for me to take is to bring home to Mr Lyster, as I have, the seriousness of his conduct in refusing to recognise the authority and jurisdiction of the Court, and to give him an opportunity to alter his position and recognise the authority and jurisdiction of the Court by complying with the orders I have made and propose to make.  If he is prepared to do so he will be able to avoid a term of imprisonment as I propose to order that a warrant for his committal to prison for one month issue and lie in the Registry and not be executed provided Mr Lyster complies with a number of conditions.  If he is not prepared to do so it will follow that the warrant issued for his committal to prison for a period of one month be executed.

62                  Notwithstanding the fact Mr Lyster contends that he has resigned as a director of the company, I consider it appropriate that he be ordered to take all necessary steps as directed by the Commission to secure the transfer of the registration of the domain name from the company to the Commission.  Although he may now not be a director of the company, it may well be that the Commission requires his assistance or signature on documents in order to facilitate the registration of the domain name having regard to the fact that he is still shown as the administrative contact in respect of the registrant of the domain name, namely the company. 

63                  Mr Lyster has not availed himself of the opportunity to file an affidavit verifying the assets he has in his possession, power, custody or control.  Consistently with my earlier proposal to enable him to reconsider his position, I propose to give him the opportunity to consider also his attitude towards the order requiring him to pay the fine.  I propose to order that he file an affidavit verifying the assets he has in his possession and power and in his custody and under his control.  If he does not comply with such order then I will be obliged to order that the warrant issued for his committal to prison for a period of one month be executed.

Orders

64                  In its motion the Commission sought an order that Mr Lyster and Ms Glover be imprisoned in respect of the contempt of court constituted by their breach of par 2 of the 6 August order by being knowingly concerned in or party to the publishing of the representations referred to in par 1 of the 6 August order.  However, that issue of contempt of court was dealt with by the order made on 9 April 2002, the second paragraph of which declared that Mr Lyster and Ms Glover were each guilty of contempt of court by their conduct in breaching par 2 of the 6 August order.  The representations which were made on the www.purple‑plates.com website and the linked www.purple‑harmony‑plates.com in breach of par 1 of the 6 August order had been removed from those websites by 27 November 2001.  There was no evidence that subsequent to that date the representations were published on either of the two websites or that there had been any further publication of the representations in any way after the 9 April order.  Accordingly, any issue relating to the claim that the respondents were in breach of the 6 August order by the subsequent publication of the representations referred to in par 1 of that order was determined by the 9 April order.  That contempt has not continued and there is therefore no basis for any further orders to be made in relation to the breach of pars 1 and 2 of the 6 August order as such breach did not continue after 27 November 2001.

65                  Having regard to the evidence of Ms Glover’s means and the order I propose to make in relation to Mr Lyster concerning the filing of an affidavit by him, I do not consider that it is appropriate to make any order at this time in relation to the failure of Ms Glover and Mr Lyster to pay the fines ordered to be paid on 9 April 2002.  It is open to the Commission to take further steps in relation to the enforcement of that order, for example by way of sequestration of the property of the respondents.

66                  I consider in all the circumstances that it is appropriate to order that a warrant issue for the committal of Ms Glover to prison for a period of one month but that the warrant lie in the Registry and not be executed provided that Ms Glover:

(a)                takes all such steps, performs all such acts and signs all such documents as may be required of her by the Commission within seven days of this order to effect the transfer of the domain name to the Commission;

 

(b)               refrains for two years from the date of this order from publishing, distributing, transmitting, displaying or broadcasting material which contains representations in the form or to the effect of the representations set out in par 1 of the order of the Court made on 6 August 2001 and also refrains for two years from the date of this order from being knowingly involved in the publishing, distributing, transmitting, displaying or broadcasting of material which contains such representations by any other person.

 

67                  I consider in all the circumstances that it is appropriate to order that a warrant issue for the committal of Mr Lyster to prison for a period of one month but that the warrant lie in the Registry and not be executed provided that Mr Lyster:

(a)                takes all such steps, performs all such acts and signs all such documents as may be required of him by the Commission within seven days of this order to effect the transfer of the domain name to the Commission;

 

(b)               refrains for two years from the date of this order from publishing, distributing, transmitting, displaying or broadcasting material which contains representations in the form or to the effect of the representations set out in par 1 of the order of the Court made on 6 August 2001 and also refrains for two years from the date of this order from being knowingly involved in the publishing, distributing, transmitting, displaying or broadcasting of material which contains such representations by any other person;

 

(c)                files an affidavit verifying the assets he has in his possession, power, custody or control.

 

68                  I also propose to order that the respondents pay any expenses incurred by the Commission in relation to the transfer of the registration of the domain name from the company to the Commission and that the respondents pay the Commission’s costs of the motion.  I will reserve liberty to all parties to apply for any further or other orders as they may be advised in relation to the implementation and carrying into effect of these orders.

I certify that the preceding sixty‑eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:              29 November 2002

Counsel for the Applicant:	Ms P Tate
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the first respondent:	There was no appearance by or on behalf of the first respondent
Counsel for the second respondent:	The second respondent appeared in person
Counsel for the third respondent:	The third respondent appeared in person
Date of Hearing:	24 October 2002
Date of Judgment:	29 November 2002