FEDERAL COURT OF AUSTRALIA

Rip Curl International Pty Ltd v Phone Lab Pty Ltd (No 2) [2004] FCA 1553

CONTEMPT – penalty – application brought seeking variation of penalty to allow payment by instalments – attempt to adduce evidence as to the financial position of the respondents – evidence could have been adduced at hearing – no justification for reopening of orders – in any event, payment by instalments would not have been ordered, as such an order would significantly reduce the efficacy of the penalty – application dismissed

De L v Director General of the New South Wales Department of Community Services (No 2) (1997) 190 CLR 207 cited

Hanave Pty Limited v LFOT Pty Limited [1999] FCA 572 cited

RIP CURL INTERNATIONAL PTY LTD & ORS v PHONE LAB PTY LTD & ORS

V 394 OF 2004

HELY J

25 NOVEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The motion filed on 28 October 2004 by the first and third respondents be dismissed with costs.

2.         The orders made by Hely J on 17 September 2004 be varied by replacing ‘28 October 2004’ in orders 1 and 2 with ‘28 February 2004’.

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

REASONS FOR JUDGMENT

1                     On 17 September 2004 I gave a final decision on a contempt application brought by certain of the applicants against certain of the respondents and I imposed penalties on the first respondent and on the third respondent in the sum of $38,500 and $5,000 respectively.  I ordered that those sums be paid by 28 October 2004.  The relevant respondents were represented by counsel at that hearing and they made a deliberate choice not to put any evidence before the Court as to the financial position of the respondents or as to their personal circumstances, even though this was a matter which was raised in the course of submissions on 24 August 2004. 

2                     On 26 October 2002 a Notice of Motion was filed by the first and third respondents which sought a variation of the orders which I made on 17 September 2004 so as to permit the payment of the penalty of $38,500 by instalments of $1,604.17 per month for a period of 24 months commencing on 28 October 2004 and for the payment of the penalty of $5,000 by instalments of $416.17 per month for the period of 12 months commencing on 28 October 2004.

3                     Two affidavits were filed in support of that motion, one by Andrew Cheng (the second respondent) of 26 October 2004 and the other by Jeff Wang (the third respondent) on a date which does not appear.  The general effect of those affidavits is to put material before the Court as to the financial position of the relevant respondents, and it is fair to say that those affidavits disclose that the financial position of the relevant respondents is not good.  However, Mr Merrick, who has appeared for the applicants, has drawn my attention to authorities including the decision of the High Court in De L v Director General of the New South Wales Department of Community Services (No. 2) (1997) 190 CLR 207 in particular at 215, and the decision of the Full Court of this Court in Hanave Pty Limited v LFOT Pty Limited [1999] FCA 572.  These cases demonstrate the limited circumstances in which a Court should permit earlier final orders to be reopened.

4                     In my view this is not an appropriate case in which to permit the relevant respondents to seek to reopen the orders that I earlier made, because it is quite clear to me that, for  what he thought to be a sound tactical reason, the respondent’s counsel at the hearing chose not to put evidence before me on the matters which the respondents now seek to introduce.  In those circumstances, I do not think that it is appropriate to entertain a motion to reopen my earlier order. 

5                     I should say, in any event, that I would not have been prepared to permit  payment of the penalty by the monthly instalments proposed, because, in my view, whilst it may be more convenient to the respondents for the penalty to be paid in that way, to permit it to be paid over so lengthy a period substantially detracts from the force of a penalty and the purpose of its imposition.

6                     I am, however, prepared to make one concession in favour of the respondents.  That is, I am prepared to extend the date for payment of the penalty until 28 February 2005.  I do that because the current motion has been pending for some time.  It would have been reasonable for the respondents to await the outcome of this motion before making the payment which I had earlier ordered.  An extension of the period that I have indicated is, I think, justified in those peculiar circumstances. 

7                     Accordingly, I order that the orders which were made on 17 September 2004 be varied by substituting 28 October 2004 with the date 28 February 2005.  Otherwise the motion is dismissed with costs.

Associate:

Dated:              1 December 2004