FEDERAL COURT OF AUSTRALIA

Infa-Secure Pty Limited v Crocker [2015] FCA 830

REASONS FOR JUDGMENT

Introduction

1    This proceeding, and a related proceeding commenced by Ms Crocker (QUD 647 of 2014), are the most recent emanations of a long-running dispute between Infa-Secure Pty Limited (Infa-Secure) and Ms Crocker in respect of a child restraint product called SECURAP.

2    On 12 January 2015, Ms Crocker gave an undertaking to this Court in this proceeding. That undertaking was given during the hearing of an application by Infa-Secure for an interlocutory injunction to restrain Ms Crocker from continuing to make various representations she had allegedly made to retailers who had purchased the SECURAP product from Infa-Secure. The representations related to Ms Crocker’s ownership of the intellectual property in that device, and Infa-Secure’s dealings with it. In broad terms, Ms Crocker’s undertaking was to the same effect as the interlocutory injunction sought by Infa-Secure.

3    Infa-Secure now claims that Ms Crocker has breached her undertaking on numerous occasions in a series of emails she sent to various retailers in January and February 2015. In this application, it seeks findings that Ms Crocker has committed a contempt of this Court on each of those occasions.

The undertaking

4    The undertaking Ms Crocker gave on 12 January 2015 was in the following terms:

Upon the applicant, by its counsel, giving the usual undertaking as to damages, and upon the respondent’s undertaking that, until trial or earlier order, she will not, whether by herself, her agents or representatives communicate with any person regarding the subject matter of proceeding QUD 647 of 2014 or of proceeding QUD 9 of 2015 save:

(a)    to seek legal advice;

(b)    to serve a document filed in the Court on a party to either proceeding; or

(c)    otherwise by way of service, including originating service.

The issues that arise

5    Infa-Secure’s application raises two broad issues; one procedural and the other substantive. They are:

(a)    whether Infa-Secure has complied with the requirements of r 42 of the Federal Court Rules 2011 (Cth) (the Rules); and

(b)    whether Ms Crocker has breached her undertaking and thereby committed the alleged contempts of this Court.

6    Among others, the latter issue involves a number of sub-issues, including the proper construction, and therefore scope, of Ms Crocker’s undertaking.

The factual context

7    Before addressing these issues, it is necessary to outline the factual context to this application. Much of that is contained in the statements of claim that Infa-Secure has filed in this proceeding and that Ms Crocker has filed in her proceeding (QUD 647 of 2014). The salient aspects of those documents are set out below.

8    Infa-Secure is one of a number of companies operated by members of the Horsfall family. The predecessor to Infa-Secure was a company called Infa Products Pty Limited (Infa Products). Infa-Secure is the ultimate successor to a business operated by Infa Products and, before it, the Horsfall family.

9    From about 1995, the business operated by the Horsfall family began sourcing a product known as “SECUR-AP” or “SECURAP” and selling it to retailers. That product is described in Infa-Secure’s statement of claim as:

… a piece of material designed to be wrapped around the shoulder straps of a harness of a child car-safety seat or other child equipment so as to make it more difficult for a child to remove his/her arms from the shoulder straps.

10    SECURAP is described more generally in Ms Crocker’s statement of claim in these terms:

… a securing apparatus using a five and three point harness system to secure children’s car seats, prams, high chairs, swings and strollers.

11    From about 1995 to 1998, the Horsfall family purchased the SECURAP product from a company named Maternally Yours Pty Ltd. Ms Crocker was a director of that company. In her statement of claim, Ms Crocker claims to have designed the SECURAP product and trade mark, and to hold copyright in relation to the instructions for its use and the marketing packaging in which it was offered for sale.

12    Maternally Yours Pty Ltd was deregistered as a company on or about 11 September 1998 and it ceased to trade from about that time. When that happened, the Horsfall family, and subsequently Infa Products, used stock purchased from, and manufactured by, an Australian company named Tasman Tannery Pty Ltd. It appears from Ms Crocker’s statement of claim that this company had previously manufactured the SECURAP product for Maternally Yours Pty Ltd. From about 2004, Infa Products, and later Infa-Secure, had the SECURAP product manufactured overseas.

13    Infa-Secure alleges in its statement of claim that sometime in 2006, Ms Crocker spoke with Mr Richard Horsfall, who was at that time the director of Infa Products. It alleges that Ms Crocker claimed to have a patent that covered the SECURAP product and she claimed that, by marketing the SECURAP product, Infa Products was infringing her patent. It further alleges that Ms Crocker told Mr Horsfall that she would not sue for the infringement of her patent if Infa Products paid her a royalty on the sales of the SECURAP product. Acting on the faith of those representations, the statement of claim alleges that Ms Crocker was paid two royalty payments in 2006 and 2007 totalling approximately $5,000. Finally, Infa-Secure alleges that Ms Crocker’s representations about the patent she held in relation to the SECURAP product were untrue as neither she, nor any company with which she was associated, held any such patent at the time of her representations.

14    While the latter allegation is directed to the period in 2006 and 2007 when Ms Crocker made the alleged representations about her patent, it appears from other material filed in her proceedings, and it does not appear to be in dispute that, until about September 1998, Ms Crocker did hold a patent in relation to the SECURAP product jointly with another person. That patent lapsed in about September 1998 when the renewal fee payable in respect of it was not paid: see Crocker v Toys ‘R’ Us (Australia) Pty Ltd [2015] FCA 588 at [22].

15    There are also two other events, or series of events, that occurred between 2006 and the commencement of Ms Crocker’s proceeding in early December 2014 that should be recorded at this point in the chronology. While these events are not mentioned in either party’s statement of claim, their existence does not appear to be in dispute. First, in December 2010, Ms Crocker applied to register the SECURAP mark as a trade mark under the Trade Marks Act 1995 (Cth) (the Trade Marks Act). That application was subsequently accepted by the Registrar of Trade Marks. However, in June 2011, Infa-Secure commenced opposition proceedings under Part V of the Trade Marks Act. Those proceedings were successful when, in November 2012, a Delegate of the Registrar refused Ms Crocker’s application to register the SECURAP mark. For a brief history of those opposition proceedings, see Crocker v Toys ‘R’ Us (Australia) Pty Ltd [2015] FCA 588 at [15]–[22].

16    Secondly and relatedly, in September 2014, Ms Crocker filed an originating application in the Supreme Court of Queensland seeking a review of the decision of the Delegate of the Registrar to refuse her registration application. In November 2014, that application was dismissed by Applegarth J on the basis that the Supreme Court had no jurisdiction to entertain it for review.

17    As I have mentioned above, Ms Crocker commenced her proceeding (QUD 647 of 2014) in early December 2014 against the respondents, Infa-Secure and three other entities: Toys R Us, Baby Zone and Baby Co. About four months later, in April 2015, Ms Crocker applied to amend the names of the three respondents to reflect their correct titles and status: Toys ‘R’ Us (Australia) Pty Ltd, Baby Zone (Aust) Pty Ltd, and The Baby Project Limited Partnership LP.

18    As best can be ascertained from her originating application, Ms Crocker’s claims broadly fell into four categories:

(a)    the infringement of the SECURAP registered trade mark;

(b)    the infringement of the copyright in the user instructions and the marketing packaging for the SECURAP product;

(c)    passing off, or misleading or deceptive conduct, in relation to the SECURAP mark; and

(d)    a collection of sundry claims including fraud, plagiarism, misuse of a barcode, breach of contract, and counterfeiting.

19    Shortly after filing her originating application, Ms Crocker proceeded to send a series of emails to the [respondents to her proceeding and a number of other customers of Infa-Secure which contained a number of serious allegations against Infa-Secure’s senior personnel in connection with its sale of the SECURAP product.

20    Infa-Secure considered those allegations were designed to damage its standing within its customer base, with a view to pressuring it to address Ms Crocker’s claims against it in relation to the SECURAP product. Accordingly, its lawyers foreshadowed to Ms Crocker that Infa-Secure would file an application for an injunction to restrain her from continuing to make them.

21    Soon after Infa-Secure filed that application, Ms Crocker countered by discontinuing her proceeding against Infa-Secure. She filed the notice of discontinuance in late December 2014. Since then, she has continued the proceeding against the other three respondents mentioned at [17] above.

22    On 30 July 2015, I ordered that summary judgment be entered for the respondents against Ms Crocker in her proceeding (QUD 647 of 2014), with the exception of the claims broadly described in [18(b)] and [18(c)] above: see Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728. I also ordered that her statement of claim be struck out in full and I gave her leave to re-plead the claims described in [18(b)] and [18(c)] above.

23    In the meantime, and shortly after Ms Crocker discontinued her proceeding against Infa-Secure, Infa-Secure commenced this proceeding against Ms Crocker. In its originating application, Infa-Secure sought an injunction pursuant to s 232 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) to restrain Ms Crocker, whether by herself, her agents or her representatives, from making a large number of representations (approximately 48) in relation to the SECURAP product. In its statement of claim, Infa-Secure alleged that those representations were contained in the same series of emails Ms Crocker had sent in December 2014, shortly after commencing her proceeding (see at [19] above). The effect of those representations, as pleaded, can be summarised in broad terms as follows:

(a)    that the addressees of the emails had unlawfully used property (namely the SECURAP product) belonging to Ms Crocker;

(b)    that each of the addressees had, by selling or trading in the SECURAP product, acted unlawfully or committed a criminal offence;

(c)    that Infa-Secure was supplying a product (namely the SECURAP product) that had been stolen from Ms Crocker, or that was counterfeit;

(d)    that Ms Crocker had legal rights in the SECURAP product; and

(e)    that each of the addressees was liable to compensate, or account to, Ms Crocker in respect of their use of the SECURAP product.

24    The terms of this injunction therefore essentially replicated the injunction Infa-Secure had earlier sought in Ms Crocker’s proceeding, which it could not pursue because she discontinued that proceeding against it (see at [21] above).

25    In its statement of claim, Infa-Secure also alleged that Ms Crocker made a number of representations to its lawyers in an email she sent to them in November 2014 in respect of her copyright in the SECURAP product name and, among other things, the packaging design and user instructions for the SECURAP product, which representations constituted unjustifiable threats within the terms of s 202 of the Copyright Act 1968 (Cth).

26    It was at the first directions hearing of this proceeding that Ms Crocker gave her undertaking to the Court (see at [4] above).

27    Two months later, Infa-Secure filed the current application seeking to have Ms Crocker punished for contempt of this Court. Its application is based on 27 alleged breaches of her undertaking. It is that application to which I will now turn.

Has Infa-Secure complied with the requirements of Rule 42?

The requirements of rule 42 of the Rules

28    Rule 42 of the Rules prescribes the steps a party is required to take when pursuing a person for contempt of Court. Those steps include the following:

(a)    an application for contempt committed in connection with a proceeding must be pursued by an application made in that proceeding (r 42.11(1));

(b)    an application alleging contempt must be accompanied by a statement of charge and any affidavits that are to be relied on (r 42.12);

(c)    the material mentioned above must be served personally on the alleged contemnor (r 42.13); and

(d)    the hearing of a charge is to proceed in accordance with the provisions of r 42.15.

Infa-Secure’s application and supporting affidavits

29    As is already mentioned above, Infa-Secure filed this application in March 2015. It was accompanied by a statement of charge which contained 28 separate charges. At the final hearing, it did not seek to pursue Charge 25. Each of the remaining 27 charges followed a similar format. Each referred to Ms Crocker’s undertaking, it alleged she had communicated with certain persons in breach of the undertaking, and it then provided particulars of the time, form and content of the communication concerned. Each of those communications was in the form of an email which Ms Crocker sent on various dates between 12 January and 28 February 2015.

30    Infa-Secure also filed, and relied upon, a number of affidavits in support of this application.

31    First, there was an affidavit of Mr Christopher Gregory. Mr Gregory is the Managing Director of Sydney’s Baby Kingdom Pty Limited (ACN 096 197 572), which trades as Baby Kingdom. He deposed to the fact that he received three emails sent by Ms Crocker on 24 February 2015, 26 February 2015 and 28 February 2015. Those emails are the subject of Charges 20, 24 and 26, respectively.

32    Secondly, there was an affidavit of Mr Tony Moschella. Mr Moschella is the General Manager of Baby Zone (Aust) Pty Limited, which is the third respondent in Ms Crocker’s proceeding. He deposed to the facts that this entity trades as Baby Zone Direct and also as My Baby Warehouse. Mr Moschella stated that, as part of his duties, he monitors emails sent to Baby Zone Direct at the address “sales@babyzonedirect.com.au” and to My Baby Warehouse at the address “support@mybabywarehouse.com.au”. Mr Moschella deposed to the fact that he received 21 emails from Ms Crocker on various dates in January and February 2015. Those emails are the subject of Charges 1 to 11 (inclusive), 13 to 20 (inclusive), 24 and 26.

33    Thirdly, there was an affidavit of Mr Thomas Hubbard. Mr Hubbard is the Marketing Manager of Infa-Secure. He deposed to the fact that, on 28 February 2015, he received five emails from Ms Vanessa Stark who trades as “Made 4 Baby”. He stated he was familiar with Ms Stark and her business, having communicated with her on previous occasions. He stated that Made 4 Baby is not a retailer for products supplied by Infa-Secure, but reviews baby products from time to time. Made 4 Baby had reviewed Infa-Secure’s Securap product and published that review on its website: www.made4baby.com.au. The five emails that Ms Stark forwarded to Mr Hubbard are the emails that Ms Crocker sent to Ms Stark in February 2015, which are the subject of Charges 21, 22, 23, 27 and 28.

34    Fourthly, there were two affidavits of Ms Kerry Chrysiliou. Ms Chrysiliou is a solicitor at Chrysiliou Lawyers, who act for Infa-Secure in this proceeding and the three respondents in Ms Crocker’s proceeding (QUD 647 of 2014). In her affidavits, Ms Chrysiliou deposed to various emails her firm had received from Ms Crocker in January and February 2015. Those emails are the subject of Charges 12, 13, 15, 17, 18, 19, 21 and 26. Ms Chrysiliou also deposed that she sent various emails to Ms Crocker in reply to the emails she received from her. The purpose of those emails was variously to:

(a)    serve documents on Ms Crocker;

(b)    ask Ms Crocker to refrain from communicating directly with Chrysiliou Lawyers' clients and only communicate with Chrysiliou Lawyers;

(c)    draw Ms Crocker's attention to the undertaking she gave to the Court on 12 January 2015, including providing Ms Crocker with a copy of the undertaking on multiple occasions;

(d)    complain to Ms Crocker of her continued breaches of her undertaking; and

(e)    advise Ms Crocker that an application for contempt would be made if the breaches of her undertaking persisted.

35    It is worth adding that it is quite apparent from this correspondence that Chrysiliou Lawyers repeatedly warned Ms Crocker that her email communications were in direct breach of the undertaking she had given to the Court. The following provide some examples of those warnings:

[Friday, 6 February 2015]

…

Your email below is not for the purpose of seeking legal advice, or serving a document. It contains the type of false or misleading statements which are subject of the Statement of Claim filed in QUD 9/2015.

You acknowledged in Court on 12 January that you understood the nature of your undertakings to the Court and that you understood that if you breach them you are liable to be dealt with for contempt of court, which means that you could go to jail. We reserve our client's rights to take any action it sees fit in respect to the breach of the undertakings given to the Court.

Please ensure that you observe your undertakings to the Court and not to continue to ignore them.

…

[Friday, 13 February 2015]

…

On 6 February, 2015, we emailed you in relation to the breaches of your undertakings. We asked that you cease ignoring your undertakings and observe your obligations to the Court. Despite that, you have sent further emails in breach of your undertakings.

…

[Wednesday, 25 February 2015]

…

Contrary to what you say in your email, you will be in contempt of the Undertakings you gave to the Court on 12 January 2015 if you send the notices you refer to below. A copy of the Orders is attached for your ready reference.

At the hearing on 12 January, His Honour Justice Dowsett asked you whether you understood that you could go to jail if you breached your undertakings. You said you did understand.

…

We have warned you on a number of occasions about your continuing breaches of your Undertakings to the court. You seem to believe that you are above the law. We are recommending to Infa that urgent action be taken in respect of contempt of court prior to the 12 March hearing date.

…

36    Finally, Infa-Secure relied on two affidavits which deposed to the personal service on Ms Crocker of all of the materials described above.

Ms Crocker’s unsworn affidavit

37    On the first return date of Infa-Secure’s application, in March 2015, Ms Crocker appeared in person. She was unrepresented and has remained so throughout this proceeding, although on occasions she has claimed that she has obtained some advice from a lawyer on a pro bono basis. Among other orders that I made on that date, Ms Crocker was ordered to file any material upon which she wished to rely in defence of the contempt application by 3 April 2015. I also ordered that the application for contempt be set down for hearing approximately one month later.

38    Ms Crocker did not file any materials by 3 April 2015. However, prior to the first return date mentioned above, she filed an affidavit and written submissions. It also appears that Ms Crocker provided to Infa-Secure an unsworn affidavit, in which she made a number of assertions about this application. The contents of that affidavit were replicated to the Court in the written submissions of Infa-Secure. Ms Crocker’s assertions included the following:

4.    Contempt of Court is an intentional act of which I am not guilty and will not accept responsibility for. I would never commit an act of contempt and my actions are not one of contempt, but rather, acts of being misled in understanding what an undertaking is and how it applied to me. I have not contacted any person who is not, to my understanding, a party to the proceeding in one way or another and all persons I have contacted were retailers who were put on notice twice and knew that I was commencing legal action for the recovery of my property stolen from me in an act of fraud.

…

8.    During the proceeding [on 12 January 2015], the respondent Barrister asked of Justice Dowsett that I be given a gag order or to that effect. They made it very clear that they did not want me to go public and alert the public of the matter.

…

12.    Through the course of the hearing, I volunteered to give an undertaking to the court. The respondent Barrister could not provide one to the court that was acceptable to the court and I offered one of my own to satisfy all parties.

…

14.    At one point, while trying to convince me to accept an undertaking and while the respondent Barrister was trying to work out with Justice Dowsett how to word the undertaking, the respondent Barrister, Mr Nick Ferret, turned to me and said that an undertaking did NOT prevent me from speaking to anyone who already knew about the case, it only prevented me from speaking to anyone new who had not heard about the case and it prohibited me from going public.

…

16.     My immediate understanding of this based on Mr Ferret’s legal advice to me in court before Justice Dowsett is that ANY person I have already spoken to in the past was not part of my undertaking to not communicate to persons outside of the proceedings. If this is incorrect, then it should have been corrected in court.

17.     My further understanding, as I had already determined to contact retailers who had already been put on notice twice, was that they were a party to the proceeding as I had made it known to Justice Dowsett that I had many persons to name yet in the proceeding …

The hearing before Dowsett J on 12 January 2015

39    Since Ms Crocker’s assertions above relate to the discussion that occurred before Dowsett J on 12 January 2015, it is convenient, at this point, to set out the salient aspects of that discussion. The background to, and nature of, the interlocutory injunction application Infa-Secure made on that date are described above at [23]–[24]. During the discussion related to that application, Dowsett J observed that such an injunction seemed somewhat akin to an attempt to restrain defamation and, in that respect, his Honour said that a consideration of the underlying policy of free speech would be relevant to the exercise of his discretion. Following a discussion about those principles, his Honour indicated that an undertaking that Ms Crocker would cease her communications may be a more appropriate course. His Honour then clearly outlined to Ms Crocker the consequence of breaching any such undertaking, in the following terms:

HIS HONOUR: Well, are you willing to give me an undertaking to that effect?

MS CROCKER: Yes, your Honour. I will.

HIS HONOUR: And you understand that if you breach the undertaking, you will be liable to be dealt with for contempt of court.

MS CROCKER: Yes, your Honour.

HIS HONOUR: Which could mean that you go to jail. Do you understand that?

MS CROCKER: I do understand that. Yes.

HIS HONOUR: But you’re willing to undertake what?

MS CROCKER: That I won’t communicate any further outside of their legal representatives.

40    The discussion then turned to a consideration of the precise terms of the undertaking. During it, Ms Crocker made a number of statements which reflected her understanding of the effect of the undertaking she had just given, as follows:

MS CROCKER: Your Honour, I just gave an undertaking that I would not communicate in any shape, form or size – I gave this to the barrister – other than to serve court sealed documents on any respondent…

HIS HONOUR: Wouldn’t communicate with whom about what?

MS CROCKER: Anybody. Absolutely nobody. I will just – I intend to add further respondents to my application and other than that there’s no need to respond or to communicate or do anything with anybody.

HIS HONOUR: Concerning what?

MS CROCKER: Concerning my ownership of the property, the infringement, any of my allegations that I’ve raised.

HIS HONOUR: Concerning the claims and allegations made in - - -

MS CROCKER: Yes, yes.

HIS HONOUR: well, you don’t make any in these proceedings as against this respondent at the moment.

MS CROCKER: No, I don’t but what they’re to actually - - -

HIS HONOUR: Well, I suppose you do. Yes.

MS CROCKER: They’re trying to stop me from making any allegations in my infringement proceedings. So - - -

HIS HONOUR: Yes.

MS CROCKER: - - - I’ve agreed to confine it to proceedings, only to respondents that are named - - -

HIS HONOUR: Concerning the subject matter of these proceedings?

MS CROCKER: Yes, yes….It covers everything.

41    Finally, in order to ensure Ms Crocker understood the full import of her undertaking, his Honour said:

HIS HONOUR: You understand what you can’t do?

MS CROCKER: Yes. I do, your Honour.

HIS HONOUR: And you understand what will happen if you break the terms of the undertaking?

MS CROCKER: I do, your Honour. I do.

42    I will return to the above exchanges later in these reasons.

The hearing of this application

43    Returning to this contempt application, at the commencement of the hearing in April 2015, Ms Crocker sought an adjournment because she claimed she was distracted by a health condition her son had experienced and some surgery he had to undergo. Given the serious nature of the charges against her, I granted that adjournment.

44    The hearing was adjourned until late May 2015. At the adjourned hearing, Ms Crocker, again unrepresented, confirmed she had been served with the statement of charge and the supporting affidavits filed by Infa-Secure. When asked to respond to the charges, she said she had read them and she was not guilty of any of the charges. She did not seek to have the hearing of the charges proceed by way of oral evidence, nor cross-examine the deponents to any of the affidavits filed by Infa-Secure, nor seek to call any evidence herself, whether oral or otherwise. I then heard oral submissions from Infa-Secure’s counsel and from Ms Crocker.

45    Based on the procedural steps outlined above, I am therefore satisfied that the answer to the question posed by the first issue (at [5(a)] above) is: Yes, Infa-Secure has complied with the requirements in r 42 of the Rules. In this answer, I include, in particular, r 42.15: see the discussion of those requirements in Titan Support Systems Inc v Nguyen (No 2) [2015] FCA 359 at [22] per Murphy J.

Has Ms Crocker breached her undertaking and committed contempt?

Infa-Secure’s 27 charges against Ms Crocker

46    Having addressed the procedural aspects of this application, I will now turn to the substantive issue: has Ms Crocker breached her undertaking and thereby committed contempt of this Court? It is convenient to begin my consideration of that question by outlining the allegations contained in Infa-Secure’s statement of charge. To do that, I will set out the first charge verbatim and then summarise the particulars of the other 26 charges by reference to it.

Charge 1

47    The first charge reads as follows:

Charge

1.    Being aware of the undertaking you gave to the Court on 12 January 2015 (“the Undertaking”) that until trial or earlier order, you would not, whether by yourself, your agents or representatives communicate with any person regarding the subject matter of proceeding QUD 647 of 2014 or of proceeding QUD 9 of 2015 save:

(a)    to seek legal advice;

(b)    to serve a document filed in the Court on a party to either proceeding; or

(c)    otherwise by way of service, including originating service,

you communicated with persons regarding the subject matter of proceeding QUD 647 of 2014 and of proceeding QUD 9 of 2015 for purposes other than to seek legal advice, to serve a document filed in the Court on a party to either proceeding, or otherwise by way of service.

Particulars:

On or about 15 January 2015 at 10:58pm, you sent an e-mail to certain e-mail addresses (attached and marked “1”), which e-mail was:

(a)    a communication regarding the subject matter of both proceeding QUD 647 of 2014 and proceeding QUD 9 of 2015;

(b)    not sent for the purpose of seeking legal advice;

(c)    not sent for the purpose of serving a document filed in the Court on a party to either proceeding QUD 647 of 2014 or proceeding QUD 9 of 2015; and

(d)    not otherwise for the purposes of service (whether originating service or otherwise).

48    The addressees of this email were Ms Melissa McHugh and two email addresses: “sales@babyzonedirect.com.au” and “customerservices@babyco.com.au”. The first addressee, Ms McHugh, is an employee of Toys ‘R’ Us (the second respondent in proceeding QUD 647 of 2014). While the emails provided in the statement of charge only refer to Ms McHugh by name (that is, they do not display her email address), Ms Chrysiliou deposed in one of her affidavits that the email address used to contact Ms McHugh was: “mchughm@toysrus.com”. According to the affidavit of Mr Moschella, the first of the two email addresses above is an email address used by Baby Zone (Aust) Pty Limited (being the third respondent in proceeding QUD 647 of 2014). In his affidavit, Mr Moschella said that he personally monitored emails sent to that email address. There is no evidence before me as to who uses or monitors the second of the two email addresses above.

49    The content of the email upon which Infa-Secure particularly relied included the following:

Unfortunately, all efforts to resolve the copyright and trademark infringement matter with Infa Secure Pty Ltd have failed.

Infa have determined to continue to allow this matter to proceed to court and to allow me to seek damages against all parties using my property unlawfully. This means you need to engage a lawyer immediately and prepare to defend your use of my property before the Federal Court of Australia.

… I have dismissed Infa from proceedings to address their role in this matter in an alternative manner and am now only proceeding with my infringement action against all retailers who have used the product and continued to use the product without my consent. I am adding further retailers to the application so please do not think I have only selected a few …

…

I need to protect the integrity of the product, to ensure it is returned to its former quality and performance so it does meet the needs of children and I need to protect my family’s interest in this as this is the inheritance of my children. I also need to set a precedent to ensure other inventors are not treated in this manner and denied their rightful incomes and acknowledgement of their inventions.

… If I could force Infa to resolve the matter and release you from this action I would but unfortunately, I have no control over their decisions and cannot explain why they will not remedy the matter and release you from the consequences of the matter. I believe we will all learn this throughout … Your failure to listen to me when I issued cease and desist letters and previously notified you that the product was counterfeit and then allowing yourself to be guided by the opinion of others is what saw you named in this application… please do not make that mistake again. Only take the advice of a lawyer who is working for you and is not invested in the legal interest of another party.

50    The parts of this email that directly, or indirectly, mention the service of a document, or documents are as follows:

Your service papers have been sent to you and you can expect to receive them in the next few days. You need to give them to your lawyer and make arrangements to let the court know how you wish to defend your role in this matter.

Charge 2

51    Charge 2 concerns an email Ms Crocker sent at 4.25 pm on 18 January 2015. It was sent to Ms McHugh of Toys ‘R’ Us, as well as the two email addresses described above (see Charge 1). The email was addressed to “Dear Retailers”. The content of the email upon which Infa-Secure particularly relied included the following:

The lawyer for Infa Secure Pty Ltd has asked that I provide a list of the copyright, trademark infringements and evidence to my other allegations. He has stated that I have to itemize them for the court under court rules.

…

Due to the communications of Infa Secure legal representatives, I anticipate this is going to be a lengthy proceeding with no clear judgement for many months and I further anticipate that Infa Secure will appeal the decision should I be successful in my application before the court so would strongly suggest that you prepare for this.

…

I need to further draw to your attention that the Securall product now being sold by Infa in the discontinuation of my product is also the subject of alleged infringement as noted in the application before the court. It may well be that you are still infringing my property in the use of this product also. The court will decide on that but I have sought damages for that product also if the court rules that it is an infringement of mine. Please note that this email will be provided to the court as evidence to me notifying you of the possible infringement in the Securall product.

…

Please don’t waste your time phoning Infa and demanding they fix this. Every time you phone them I receive emails from the lawyer and nothing is ever resolved. They simply aren’t interested in resolving this at all and you need to be sensible now, accept that they won’t resolve it and prepare to explain to the court why you are still selling the product.

52    The parts of this email that directly, or indirectly, mentioned the service of a document, or documents are as follows:

You will be provided a copy for your lawyer in the coming days. please advise if you are willing to accept service by way of email as this needs to be filed with the court. You will be served a sealed copy after the court accepts it for lodgement and approves it.

(Errors in original)

Charge 3

53    Charge 3 concerns an email Ms Crocker sent at 7.38 pm on 21 January 2015. It was sent to Mr Andros Chrysiliou of Chrysiliou Lawyers, Ms McHugh of Toys ‘R’ Us, and the email addresses described above (see Charge 1).

54    While this email constituted an attempt to serve parties with particular documents, Mr Ferrett contended it went beyond that purpose. The parts of this email that directly, or indirectly, mentioned the service of a document, or documents are as follows:

please find attached the additional evidences affidavit I have filed this afternoon. I will forward email service to all parties when it is accepted and sealed and provide retailers their hard copy in court on the 5 February 2015.

(Errors in original)

55    The content of the email upon which Infa-Secure particularly relied included the following:

… As I have repeatedly drawn to your attention, your client admitted in his sworn affidavit to IP Australia to manufacturing over fifty thousand products. that is while this property was still in my name and prior to the 8 November when he induced a decision against me by fraud. They are my monies in profit given he has stated via Kerry [Chrysiliou – a lawyer at the firm, Chrysiliou Lawyers] that there is NO trade agreement and your client is deliberately stealing from me by not paying me those funds. I am sure retailers would agree that your client requires that everyone pay him on time and there are consequences if they don’t …

(Errors in original)

Charge 4

56    Charge 4 concerns an email Ms Crocker sent at 10.09 pm on 22 January 2015. It was sent to Mr Andros Chrysiliou of Chrysiliou Lawyers, Ms McHugh of Toys ‘R’ Us, and the two email addresses described above (see Charge 1). A Registrar of this Court was also copied on the email.

57    The content of the email upon which Infa-Secure particularly relied included the following:

I do not anticipate filing any further documents now prior to the 5 February 2015 and do honestly hope that Infa remedy this matter for their retailers and this need not proceed any further. Unfortunately I do not have any control over that and if they fail to, then obviously I need to continue to recover my property and take the necessary actions to be compensated for the now indefinite destruction of my product and business and ensure the product is returned to its former quality that I developed it to be to ensure it does do what it says it will do.

IF the property is returned to its lawful status, the matter ends there. No consumer litigation, no retailers suing anyone, it ends and remains ended. I will not facilitate or support any retailer seeking damages against Infa Secure Pty Ltd because every retailer refused the information I provided as the rightful owner and inventor re the status of the product and every retailer failed to cease selling when I issued cease and desist letters making retailers as culpable as Infa in their selling of my product unlawfully. You had a duty, as a retailer, to learn for yourself if the product was licensed lawfully and if you had a lawful right to be using it… it is your responsibility to determine if you are protected in selling any product by way of a trade agreement with the owner or inventor of the product and it would be wise business to seek copies of such trade agreements to protect yourself from this form of litigation.

I did give Infa a licence to manufacture and distribute the property on two separate occasions therefore, it can be returned to a position of retailers being protected by that trade agreement. The inferior quality is the responsibility of Infa in the event there is a problem with the functioning of the product and when the product is returned to me, I will be addressing the quality of the product with Infa as it has been severely compromised in functionality due to its now inferior quality. Infa were NOT licensed to alter the quality of the product in anyway.

While the product is not licensed however, there is no such protection against retailers and the property is deemed counterfeit and therefore, illegal. This means you are all susceptible to litigation from me, consumers and any person who chooses to see fit to seek damages against you for the selling deliberately of counterfeit goods. It also means that the authorities have a right to seek the prosecution of any person providing counterfeit goods knowingly.

Again, I am sorry to have had to take such drastic action in this matter but I did provide all parties with enough information and direction to cease selling the property and you now need to address your reasons for your continued use with your supplier and question your own actions in failing to cease to sell a product you were told was counterfeit.

(Errors in original)

58    The parts of this email that directly, or indirectly, mentioned the service of a document, or documents are as follows:

please find sealed affidavit regarding the selling of my property by Infa Secure and retailers within the past six years as I have to provide to the court to show I am within the statute of limitation to commence this action and seek the relief I have sought.

(Errors in original)

Charge 5

59    Charge 5 concerns an email Ms Crocker sent at 7.48 am on 29 January 2015. As with Charge 4, this email was sent to Mr Andros Chrysiliou of Chrysiliou Lawyers, Ms McHugh of Toys ‘R’ Us, and the two email addresses described above (see Charge 1). There is also an additional addressee: Mr Matthew Horsfall, a director of Infa-Secure.

60    The content of the email upon which Infa-Secure particularly relied included the following:

I am sure you are satisfied now that my property is subject to copyright, trademark and design infringement and my product name is a copyright in the same way your client’s latest product Securall is the subject of copyright. I further note your client has not sought to protect the name of his product, is that because it is a copyright????

... I believe the court will not look favourably on your client for his/their failure to meet needs of mine while withholding my money from me and it could only serve to punish your client further if the court finds that your client has infringed my property and then deliberately sold that infringed property to others while withholding honest incomes from me as the inventor. I think we both know by now which way this is going to go in court and I think it is time your client started thinking about the other respondents who will be harmed by this action instead of trying to find ways to obstruct my rights to recover what was taken from me by one of Infa’s senior management.

(Errors in original)

61    The first paragraph of this email mentions the service of a document, as follows:

please find stamped copy of affidavit attached.

(Error in original)

Charge 6

62    Charge 6 concerns an email Ms Crocker sent at 10.54 am on 30 January 2015. It was sent to Mr Matthew Horsfall of Infa-Secure, Ms McHugh of Toys ‘R’ Us, and the two email addresses described above (see Charge 1).

63    This email is more than eight pages long. Much of the beginning of it is devoted to a discussion of the various “constitutional rights” Ms Crocker professed to have. She claimed she had a constitutional right to invent a product, then protect, market and promote that invention. She said she had “common law rights by constitutional right and … copyright rights by constitutional right”. She also said she had the “constitutional right to justice, to expect the prosecution of any person who steals from [her]”. Ms Crocker accused Infa-Secure of attempting to interfere with these constitutional rights and “trick the judiciary into providing a legal status to [Infa-Secure’s] counterfeit property”. Her remedy to this, she stated, was her constitutional right to seek compensation and damages against any person who unlawfully used her property, and her constitutional right to expect the Court to protect her rights and “ensure that [Infa-Secure does] not manipulate the system to conceal the crime [it has] committed”.

64    Ms Crocker then proceeded to claim that Infa-Secure had wholly reproduced her work, stolen her copyright and trademark material, “counterfeited [her] property”, and “wholly plagiarised [her] work”.

65    Ms Crocker then highlighted to Infa-Secure the “potentially bigger problems that need [its] urgent attention”. She stated:

What are you going to do if the Supreme Court upholds the findings of the Federal Court in the Britax matter and Britax seek to take infringement actions against retailers knowing that you will never pay them honestly what you owe them like you are refusing to with me? Have you considered that your retailers may be facing yet another infringement action for selling stolen property provided to them by your company? I don’t know that Britax will do this but I do know that if they are successful before the Supreme Court then they have every right to take infringement action against retailers.

How do you explain to your retailers that you are habitually stealing the property of others, obstructing their rights, refusing the findings of the first court so seeking an appeal in a higher court and all the while, selling them property that is the subject of criminal allegations????

Is this causing you harm in addressing this in my letter? Possibly and I could care less to be honest with you ... you have a duty of care to your retailers to advise them that you are involved in a matter before the Supreme Court of Australia (sic) that may find you have infringed the property of another company and that that company may seek to recover all monies made unlawfully by retailers if the decision of the court is in the favour of the other company. You cannot leave retailers unknowing of what they are potentially facing and you need to advise them before the matter that you may not be successful and they may be held legally accountable if you are not successful. ...

…

Retailers are my guarantee that I will recover at least some of my money that you have made unlawfully and the system then allows for the retailers to sue you to recover their losses and to seek damages for you selling them stolen property. I may not recover everything owed to me but I will have the satisfaction of knowing that you were held accountable for your crimes in some manner and you did not get away with them completely... your retailers will hold you accountable if they are found guilty of infringing my property after I advised them they were and they ignored me.

These are the things you should be focusing on, not how to beat me because you cannot beat me with respect to copyright law and the crime of fraud you committed against IP Australia.

66    Ms Crocker then moved on to outline 29 reasons why she was seeking damages. She claimed those reasons were:

… why you need to either buy me out or pay me everything you and your retailers have unlawfully earned from my property.

67    Many, if not all, of the reasons that Ms Crocker gave are issues in dispute in proceeding QUD 647 of 2014. For example:

1.    You stole my property and I make no apology for using this word. There is no way to pretty the allegation and it needs to be noted on the record what the claim is. Theft.

2.    You stole my identity as an inventor and stole my right to promote myself as an inventor and seek employment in the field of product development.

…

4.    You on sold my property to retailers and allowed them to make money unlawfully from my property.

5.    You fraudulently opposed my right to own my property to ip Australia and lied to influence a decision against me.

…

8.    You breached a trade agreement with me that you sought and lied to me about the volume of products you manufactured failing to pay me truthful royalties.

9.    You denied the existence of a trade agreement which has now allowed for me to seek damages against retailers who are not protected by a trade agreement in their use of my property.

10.    You stole the name of my product and claimed it as your own.

11.    You stole my packaging design in full knowing it was the success of the product selling itself.

…

14.    You have admitted to phasing out my product which means that if I am successful in my application before the court, I will have no business to be returned to me.

…

19.    You have earned interest on the monies you have unlawfully made on my property.

20.    You identified to police that I am the inventor of the property and then misled them to believe the matter was a civil matter and not one of a crime of fraud.

…

22.    You stole my barcode, copied my packaging and counterfeited the product mounting it on my packaging.

…

(Errors in original)

68    Ms Crocker then made what may broadly be characterised as an offer of settlement. It is worth noting that this offer was made about a month after Ms Crocker discontinued her proceeding against Infa-Secure and it appears to be an offer to accept payment of a sum of money to avoid her proceeding with the prosecution of a crime. She stated:

You can either offer to buy me out and I will not accept less than five million dollars in sale of the product, name, packaging style and all ip or you can immediately pay me the profits on all products you have manufactured unlawfully to date and release the property back to me where I will give it to a reputable distributor to manage and realize its true potential.

…

If you choose not to buy me out or pay me the profits to retail price of $18.95 per product, then I will seek those profits be returned to me by the retailers who made money out of my property, I will seek your prosecution and I will seek the prosecution of every person/retailer who used this and continued to use it without my consent after I notified them that it was stolen.

I am not playing your games and neither am I negotiating this with you further. You need to make a decision by 4pm today and you need to make that decision in the interests of all parties you have manipulated and conned to break the law to facilitate your crime of stealing from me. A crime they can be prosecuted for.

(Errors in original)

69    This email did not purport to serve any documents, nor make any direct, or indirect, references to that subject matter.

Charge 7

70    Charge 7 concerns an email Ms Crocker sent at 10.05 pm on 30 January 2015. It was sent to Mr Matthew Horsfall of Infa-Secure, Ms McHugh of Toys ‘R’ Us, and the two email addresses described above (see Charge 1).

71    Ms Crocker began by stating that she would be seeking “full damages” and the “prosecution of all parties who have unlawfully used [her] product”. With apparent reference to her settlement offer above, she then stated:

You may think my request for resolution was excessive but I assure you it was not. When I first licenced Infa in 1996 following a trial period through 1995, Richard Horsfall spent a lot of time speaking with Jeff Clark of Standards Australia who had given me specific figures of my sales potential annually. Those figures indicated I could expect to sell in the vicinity of two hundred thousand products per year being one quarter of the annual birth rate and that was part of the agreement between Infa and me in that they would bring my product to its full potential.

Jeff Clark was very instrumental in the working out of the trade agreement speaking with both parties to allow us both to understand the reality of this product being the only one of its kind in Australia and holding a monopoly on its design.

Therefore, at today’s date, SecurapTM should have earned in the vicinity of twenty two million dollars in profit and if it has, then that is monies that have been denied to me and robbed from me and if it hasn’t, then it is because Infa have not kept accurate records in their bookkeeping of the product while counterfeiting it. I do know my product, I know how successful it is and I can easily obtain an accurate record of sales in consumer litigation with consumers seeking damages for being sold counterfeit goods.

72    A few paragraphs later, Ms Crocker stated that she had “purchased a Securall product today” and she thought “it was so much more dangerous than [she] first anticipated”. In this email, Ms Crocker then stated:

I would strongly suggest that each of you not support the sale and use of Securall until the plastic binding is removed and replaced with a cotton hypo allergenic binding that will not harm a child when chewed on. Safety is first in everything with children and if it is not, then the product should not be allowed to be sold. I will be forwarding the product to Standards Australia with my concerns.

With respect to the overall presentation of Securall, it is the SecurapTM covertly altered to appear that it is not my property. If you lay one product on top of the other, the shape is the same, the clips are in the same position, the undo ability is concealed behind the product, it wraps around and it is the same fabric. It is a design infringement for which I also hold common law rights in the design.

73    In this respect, it should be noted that, in its statement of claim, Infa-Secure claimed that, in about March 2014, it discontinued the SECURAP product and replaced it with a new product called “Securall”. According to its statement of claim, this new product differed from the SECURAP product “… inasmuch as it is reinforced and intended to resist manipulation by a child attempting to remove his or her arms from the harness”.

74    As with the email in Charge 6 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 8

75    Charge 8 concerns an email Ms Crocker sent at 10.12 pm on 1 February 2015. It was sent to Mr Matthew Horsfall of Infa-Secure, Ms McHugh of Toys ‘R’ Us, and the two email addresses described above (see Charge 1). The email was addressed to “Dear Retailers”.

76    The content of the email upon which Infa-Secure particularly relied included the following:

I will also have the Commonwealth Attorney General’s report /investigation findings before Thursday. I have advised his office that this is before the court on the 5th so it is needed prior to then. This is the investigation report they have on file due to me filing a formal complaint with them and their investigations determined copyright theft, trademark theft, counterfeiting and plagiarism.

I have asked them to itemize the various things they identified and to break them into their categories of copyright, trademark, counterfeiting and plagiarism. As you are no doubt aware, the Commonwealth Attorney General administers copyright so his findings will be extremely important to the court in determining what was found as copyright theft by the administer of copyright. I would imagine that his finding of copyright theft will immediately prove that copyright has been infringed as I have sought action against. I further imagine it will be extremely difficult for Infa Secure Pty Ltd to argue my copyright rights with the administer of copyright. Regardless, the court will make the appropriate decisions but at least with this investigation, I can satisfy the court that there is copyright associated with my work contrary to the claims of Infa Secure Pty Ltd and their lawyers... I seriously doubt the administer of copyright would find copyright and the court would find there isn’t.

(Errors in original)

77    The parts of this email that directly, or indirectly, mentioned the service of a document, or documents, are as follows:

I have filed the emails of last week with the court and will forward you the sealed copies when they are returned to me.

Charge 9

78    Charge 9 concerns an email Ms Crocker sent at 10.20 am on 2 February 2015. It was sent to Mr Matthew Horsfall of Infa-Secure, Ms McHugh of Toys ‘R’ Us, and the two email addresses described above (see Charge 1). Again, it was addressed to “Dear Retailers”. The content of the email upon which Infa-Secure particularly relied included the following:

I am now only waiting on the Commonwealth Attorney General’s investigation findings which I hope to have in the next day. This report will itemize my copyright, trademark, the plagiarism found and the counterfeiting found.

I will forward it to you when I receive it and have it filed and sealed. I have advised the Commonwealth Attorney General that it is needed prior to the 5 February so imagine they will get it to me by tomorrow at the latest to allow for filing.

(Error in original)

79    The parts of this email that directly, or indirectly, mentioned the service of a document, or documents, are as follows:

please find attached sealed copy of emails and explanation for the court.

(Error in original)

Charge 10

80    Charge 10 concerns an email Ms Crocker sent at 11.01 am on 3 February 2015. It was sent to Mr Andros Chrysiliou of Chrysiliou Lawyers. However, also copied on the email were Mr Matthew Horsfall of Infa-Secure, Ms McHugh of Toys ‘R’ Us, and the two email addresses described above (see Charge 1).

81    In this email, Ms Crocker again stated that Infa-Secure had infringed her common law trademark, plagiarised her product and created a counterfeit. She remarked that Infa-Secure opposed her in the proceedings before IP Australia with a product that Infa-Secure had “counterfeited, plagiarized, copyright infringed/stole and trademark infringed/stole”. This appears to be a reference to the opposition proceedings under Part V of the Trade Marks Act commenced by Infa-Secure in June 2011 (see at [15]–[16] above). After making numerous similar statements and allegations, she concluded:

This is yet another evidence to the fact that your client did not develop this product, he stole it and in his haste to conceal his theft and try to alter his product which is wholly counterfeited from mine, he forgot the most important thing in giving accurate user instructions for the product to consumers.

Your client needs to remove this product from the market immediately in the interests of child safety as consumers will be confused by its application and instructions and children will be harmed as a result.

At exactly what point is your client going to stop wasting everyone’s time and undo the nightmare he has caused? When is he going to tell retailers that he did take my property unlawfully whether by intent or poor legal advice and stop the harm that will come to them if I am successful in my application before the court.

How hard is it honestly to say sorry, fix the problem and do the right thing???

82    In a postscript to this email, Ms Crocker specifically noted that she had “copied retailers already in this as they need all informations (sic) to protect themselves …”.

83    The parts of this email that directly, or indirectly, mentioned the service of a document, or documents, are as follows:

I will leave it with you and will be filing this email with the Court contained in an affidavit as it is easier to just provide my emails rather than go to the effort of explaining what I wrote.

Charge 11

84    Charge 11 concerns an email Ms Crocker sent at 12.46 pm on 4 February 2015. It was also addressed to Mr Andros Chrysiliou of Chrysiliou Lawyers. Ms McHugh of Toys ‘R’ Us and the two email addresses described above (see Charge 1) were copied on it. The content of the email upon which Infa-Secure particularly relied included the following:

You need to read the sworn affidavit of your client to IP Australia dated 21 December 2011 many months after the company was formed. I will address this with the court.

Your client is going to seriously experience the wrath of the Court if this is the attempt to argue my allegations. I draw to your attention that I advise the court of the conduct of your client despite dismissing them from proceedings as they are the known source of the product dating back to 1996. They are wholly culpable for providing a counterfeit product to the market and wholly culpable for tricking retailers into selling counterfeit goods and I would like the court to have this information because although I am angry with retailers for continuing to sell my stolen property, I do understand their position and I am hopeful that the court will understand their position also.

It was never my intention to seek damages against retailers for the crime of your client but your client forced my hand to protect myself and put a stop to their fraud.

I further draw to your attention that if your client did form a new company in 2011 as you claim, then the product CANNOT be returned to a legal status of being protected under the former trade agreement and we are therefore dealing with absolute theft not a breach of a trade agreement. I assure you Mr Chrysiliou, I may be a mother and someone insignificant to your firm but I am a little more intelligent than you give me credit for.

This would mean that Infa are in breach of a trade agreement with me and Infa Secure Pty Ltd are guilty of stealing and then on selling the stolen property.

85    The parts of this email that directly, or indirectly, mentioned the service of a document, or documents, are as follows:

Retailers are cc copied to provide them their copy of today’s affidavit.

Charge 12

86    Charge 12 concerns an email Ms Crocker sent at 2.01 pm on 4 February 2015. Again, it was sent to Mr Andros Chrysiliou of Chrysiliou Lawyers. In this instance, the only additional email address copied on it was the email address at Baby Co described above (see Charge 1).

87    The content of the email was as follows:

I trust you have advised Baby-co that if I am successful in my application before the court that they have no legal recourse against your client for damages or other as it would be a conflict of interest,

I trust you have advised Baby-co that if they are ordered to pay me compensation, punitive damages etc that they cannot recover those monies from your client at any time as you represent Infa Secure Pty Ltd.

I trust you have fully protected Baby-co from any harm that could come of this matter to them and in a way that allows them not to be harmed by the actions of your client.

I am sorry, but I see that your client has offered to represent them so your client can continue to have a hand in this matter and it is the same level of trickery your client engaged in when they generated a letter against me to trick retailers into continuing to sell the counterfeit goods.

I trust Baby-co are satisfied that they are now in a legal position where they have to accept the decision of the court and cannot take further actions if the court finds in my favour and I would seriously encourage Baby-co to make a call to their state law society and legal commission and confirm the harm that could come to them if I am successful in this matter.

Following tomorrow’s outcome, I will make the decision whether to dismiss Baby-co from these proceedings on the grounds that I do not believe they are being represented in their own interests and could be seriously harmed by your firm’s representation of them as your representation of them is to protect and conceal your client’s crime, not to protect Baby-co. I have to make the decisions right to protect the other victims in this matter and I will.

(Error in original)

88    As with the email in Charge 6 above, this email did not purport to serve any documents, nor make any direct or indirect reference to that subject matter.

Charge 13

89    Charge 13 concerns an email Ms Crocker sent at 12.10 pm on 6 February 2015. It was again addressed to Mr Andros Chrysiliou of Chrysiliou Lawyers. In this instance, Mr Matthew Horsfall of Infa-Secure, Ms McHugh of Toys ‘R’ Us, and the two email addresses described above (see Charge 1) were copied on the email.

90    In this email, Ms Crocker began by making a number of statements about her understanding of matters that were discussed during a directions hearing that had been held on the previous day. She stated:

I discussed everything Justice Reeves raised in court yesterday and assured them that I sought of His Honour to be assured that no harm could come to me for any communications I have made to any person or firm or otherwise prior to the suppression order made yesterday. This allows for litigation to proceed as intended given that His Honour assured me I could not be harmed by the use of the information I provided to any person in the past and I am not restricted in my communications under the suppression order to seek legal advice or speak to persons who know of the matter.

91    It is worth interpolating at this point that this statement is a misconstruction of what was actually said at the directions hearing on 5 February 2015. The relevant part of the discussion centred on whether or not I should make an order suppressing publication of the originating application Ms Crocker had filed in her proceeding (QUD 647 of 2014). I explained that the proposed suppression order was different to the undertaking Ms Crocker had given to the Court on 12 January 2015 in this proceeding. The transcript of that exchange was as follows:

HIS HONOUR: Ms Crocker, have you read that proposed order?

MS CROCKER: I gave the undertaking, your Honour, to Dowsett J.

HIS HONOUR: Well, this is slightly different. The effect of this order would be to restrict access to that document that you filed – the originating application – to the parties to the proceeding. Well, do you want to say anything in opposition to that?

MS CROCKER: I don’t know, your Honour. Honestly, I don’t understand the confidentiality being sought in this matter.

HIS HONOUR: Well, at present, some documents on a file that are filed in the court are available to the public, others are not… The originating application is usually one that is available to the public. What Mr Ferrett is saying is, and I’ve read most of the originating application, that it contains a number of fairly serious allegations…about his clients.

MS CROCKER: Yes. I appreciate that.

HIS HONOUR: It alleges criminal activity in their part and so on. What he is doing is seeking an order that that application be…restricted to the parties to the proceeding so only they can read that material.

MS CROCKER: Read the material, yes.

HIS HONOUR: Do you oppose that?

MS CROCKER: I don’t think so. I don’t see a problem with it, your Honour…That doesn’t restrict me from communicating with a law firm, does it?

HIS HONOUR: No.

MS CROCKER: Lawyers or anybody like that, or QPILCH Administration?

HIS HONOUR: No. This is different to the…undertaking you gave to Dowsett J which contains exceptions. You can communicate with lawyers to seek advice and … the other exceptions that were stated in that order. This is to – the effect this has on you is fairly limited. It just means that no one else can read that material apart from the parties to the proceeding.

MS CROCKER: Well, it protects the reputation of the other party until the trial determines the reality. I get that.

HIS HONOUR: That’s right. Okay. So I will make an order in terms of order 5…

92    The remaining content of the email upon which Infa-Secure relied can be summarised as follows:

(a)    Ms Crocker stated that she had discussed these proceedings with a lawyer. In particular, she expressed concern that the Infa-Secure entity that currently existed was a different corporate entity to that which opposed her during the opposition proceedings before IP Australia. She stated that “the lawyer explained to [her] that many companies who commit these kinds of offences (alleged) think that by changing their company name and de-registering the former company that they can literally get away with the crime”;

(b)    Ms Crocker stated that she would seek warrants in the Court to “establish certain things to prove [her] allegations of a crime”; and

(c)    She also described some of the evidence she would provide to the Court in her “application of a crime allegation to allow the Judge to make an order to compel police to action to seek the prosecution of your clients being both Infa Secure Pty Ltd and all retailers who have and are unlawfully using [her] property”.

93    As with the email in Charge 6 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 14

94    Charge 14 concerns an email Ms Crocker sent at 1.41 pm on 6 February 2015. It was sent to Mr Andros Chrysiliou of Chrysiliou Lawyers, Mr Matthew Horsfall of Infa-Secure, Ms McHugh of Toys ‘R’ Us, and the two email addresses described above (see Charge 1). The email was addressed to “Mr Chrysiliou and Retailers”.

95    The content of the email upon which Infa-Secure relied is as follows:

I neglected to advise you all that the lawyer said I must let you all know so I can provide evidence to the court that you were advised, that because you are all using my property unlawfully and deliberately and maliciously withholding my money from me that I have to apply for a bank loan to assist me at the moment in personal matters.

I have to provide a copy of this email to the court in an affidavit to show that I notified you all before applying for the loan and to allow me to seek additional damages for deliberate hardship that has and is being imposed on me. This will be claimed against all parties as all parties are now represented by the same law firm so clearly hold the same opinion in that I am not the owner and therefore, they can withhold my money from me.

96    As with the email in Charge 6 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 15

97    Charge 15 concerns an email Ms Crocker sent at 10.30 pm on 10 February 2015. It was addressed to “Mr Chrysiliou” of Chrysiliou Lawyers, with Ms McHugh of Toys ‘R’ Us and the email addresses described above (see Charge 1) copied on it.

98    The content of the email upon which Infa-Secure relied is as follows:

I have copied the respondents at the request of the respondents who asked to be provided copies of the allegations to the court. They want to know what is being said and claimed and how Infa are addressing the matter. Please note that Justice Reeves issued an order that I can communicate with any party who is party to the claim so I am not in breach of any order and am being guided by the requests of the respondents. At today’s date, no retailer has advised me that I am not to communicate with them and that I am not to provide them copies of what is being addressed. If they do and advise me to send all correspondence for them to you. then I will cease to send them the communications they have previously requested of me.

(Error in original) (Emphasis added)

99    Similar to the email in Charge 13 above, this statement is a misconstruction of the discussion that occurred at the directions hearing on 5 February 2015 (see at [90]–[91] above).

100    In the concluding paragraphs of this email, Ms Crocker returned to her offer to settle her claims against Infa-Secure as follows:

Please be advised that I am still willing to resolve this matter out of court in the interests of protecting the retailers/respondents in this matter but I will not be engaged in any lengthy negotiations that will not produce a quick remedy to the matter. I think you need to be guided here by your clients as to whether they wish to see this resolved out of court as I understand they all wish to see this resolved immediately and without any harm coming to their reputations or businesses. As they all have communicated to me, they did not deliberately infringe my property, they believed Infa Secure Pty Ltd when Infa issued a letter claiming I did not own this property and that I am a criminal. They trusted Infa at their word and that trust has now allowed for them to be sued and they are all in shock. If this can’t be remedied, then I will seek to proceed to trial as I advised Justice Reeves last week in court.

As I have repeatedly offered to Infa Secure Pty Ltd, this all ends and will be withdrawn when Infa Secure Pty Ltd do the right thing, return my property and money to me and purchase the product properly or seek a license to use the property which I own by right of copyright. I am not responsible for the harm that is being inflicted on any party, I am seeking to recover property taken from me and every party named in the application is guilty of using my property unlawfully and without regard to me and my rights.

101    The parts of this email that directly, or indirectly, mentioned the service of a document, or documents, are as follows:

please find my draft statement of claim… it will be sent to the lawyer tomorrow to fine tune and add any necessary acts to. He may or may not alter it as he said it needs to be in my words as I am the owner and one who has experienced this from the beginning so am best able to communicate this.

…

I will send you the sealed copy of my statement of claim after it is sealed and after the lawyer reviews it for filing.

(Error in original)

Charge 16

102    Charge 16 concerns an email Ms Crocker sent at 7.04 am on 12 February 2015. It was sent to Mr Matthew Horsfall of Infa-Secure, with Ms McHugh of Toys ‘R’ Us and the email addresses described above (see Charge 1) copied on it. Ms Crocker addressed this email to “Matthew”.

103    After making some comments about the service of her statement of claim, Ms Crocker proceeded to make a number of allegations about the conduct of the lawyers acting for Infa-Secure, the firm Chrysiliou Lawyers. She stated that they had “committed an offence of encouraging retailers to infringe her copyright”. She said:

Chrysiliou IP committed an offence of encouraging retailers to infringe my property Matthew and under the copyright act that is an act of infringement. Your lawyers are to be named as respondents to the application giving me the right to seek damages against them also for infringing my property through the encouraging the infringement of my property.

A lawyer cannot encourage and authorize a person to break the law and then represent that person or persons in court. It is a conflict of interest and completely unethical. The lawyers interests lay in protecting the lawyer and concealing the encouragement and authorization of offence, not the client.

Both your company and your retailers will need to engage another law firm to address this matter for you. Your retailers should be suing your current lawyer, not seeking they “get them out of trouble”.

Further, IP Australia is to be added to the claim as they also broke the law under the copyright act by encouraging the infringement of my copyright. They failed to remedy the decision when they were given the facts and evidence after they allegedly lost my file and under copyright law, they had to return my property to me as they do not have jurisdiction over copyright and they failed to. Instead, they encouraged your company to infringe my property as did Minister MacFarlane who will also be added to the claim and Senator Cormann who allowed his office to be deceived by your lawyer who filed a statement of facts that were completely false.

(Errors and omissions in original)

104    Ms Crocker then questioned whether or not Infa-Secure had advised its retailers that they were facing fines “in the vicinity of almost five hundred thousand dollars each in addition to the damages they will be ordered to pay [her] and the compensation they will be ordered to pay”. She stated this will be the likely result because “each [retailer] is guilty of offence as all parties were put on notice … and all parties ignored [her] and continued to use [her] copyright property without [her] consent”. She then stated:

It would have been much easier for you to simply satisfy my furniture invoices when I sent them to you, to pay me the monies owed to me and to seek to buy the property from me rather than fight me in this. As I said Matthew, retailers are there to protect me and make your company do the right thing; it is not my intention to hurt them despite their refusal to stop using my property.

I will leave it with you and advise that I will not communicate with your current lawyers any further and would suggest that you quickly locate and engage an alternative lawyer. I am seeking a finding of criminal conduct in this matter and a finding of offences in infringement by all parties and your retailers need to be provided with legal counsel that is not trying to conceal their encouragement of infringement but is looking out for the interests of your retailers.

It is time to make some serious choices in this Matthew and decide if it’s worth the fight and the harm that could come of this to all parties or if it is wiser to do the right thing now and release everyone from the proceedings. And they need to be choices that protect your retailers who were outright conned by your company and lawyer to break the law. A slang word I know but a very apt one I think given the situation.

Think about it Matthew. As I have repeatedly said, this all goes away the moment your company does the right thing. There is a file in the Federal Court holding this information now which will remain on the record for fifty years so I am content for it to stay there and proceed no further knowing that any future situation like this will be immediately noted by the court due to the file.

I will be proceeding with your lawyers in this to ensure their conduct is addressed by the court. I fully intend to see them held legally accountable for their deceit and for encouraging your retailers to break the law when they had all evidence in their possession and did so for well over a year at that time. There can be no question to whether your lawyers knew I owned this or not. There are over 250 emails which were given to the court showing that your lawyers had every evidence to my ownership, invention and copyright rights in addition to common law trademark rights. Your lawyer even admitted to police with Richard that she knew I was the inventor and held all evidence to the acronym name of Securap protected by copyright. They deceived all parties and now they are trying to ensure those very parties are protected from their conduct and I won’t allow them to cover this up any further. I want all parties who were conned by your lawyer to be brought before the court and held accountable for failing to investigate matter in an unbiased manner and IP Australia held accountable for interfering with my copyright and then encouraging the infringement of my copyright when they realized they had made a huge mistake.

Your company has brought a lot of harm to a lot of people Matthew and there is no way to protect any of them in this other than to take accountability yourself. They are all legally accountable for their conduct regardless of whether they were conned or not.

(Errors and omissions in original)

105    In a postscript, Ms Crocker indicated that she would continue to communicate with retailers. She stated:

ps. I will be copying retailers on everything until they have a new lawyer so they understand what is taking place and can make an informed decision to engage their own lawyers or continue to allow your company to engage legal representation for them.

106    The parts of this email that directly, or indirectly, mentioned the service of a document, or documents, are as follows:

Please find attached a copy of my statement of claim sealed by the court. It is self-explanatory and fully explains my copyright rights which have been infringed by your company, retailers, your lawyers, IP Australia and several Ministers.

Later this morning I will further forward you the sealed interlocutory application filed yesterday seeking that your lawyers, Chrysiliou Lawyers, be directed by the court to discontinue their representation of all respondents due to a conflict of interest.

(Errors in original)

Charge 17

107    Charge 17 concerns an email Ms Crocker sent at 10.37 am on 20 February 2015. It was sent to Ms McHugh of Toys ‘R’ Us and the email addresses described above (see Charge 1). The email was addressed to “Dear Retailers”.

108    In it, Ms Crocker stated:

I am seeking an urgent order of the Court to lift the suppression order to allow me to take this matter public immediately and notify consumers that they are using counterfeit child safety accessories in Securap and Securall. I further wish to make public that I am an inventor who was robbed of my invention and that every retailer supported the crime and is now represented legally by the lawyer for the company who robbed me.

Further information has recently come to light and I advise you all that you cannot purchase Securap products from my auto distributor and use the bar code system as Infa Secure Pty Ltd have recently purchased my bar code, specifically asking for my bar code number after failing to pay me to allow me to pay my registration. This is how they pushed me out of the market so I cannot sell my remaining stock. This is how they intend to bankrupt me and stop me from selling my product so they can get away with what they did and every one of you is supporting this whether you know what is going on or not. If I now sell my product with the barcode, then I can be criminally charged for breaching a barcode of someone else as they now own it legally. I cannot believe you are all so supportive of this and so involved in this volume of corruption. The baby industry honestly is not what I thought it was as a consumer.

If any of you have any of my stock, you need to cross out the bar code and sell it without a bar code. that is the only legal way I can now sell my property.

This is a serious evidence to the intent to steal my property and own it outright without securing it by the right avenues.

I advise that I will continue to fight this seeking to recover my property and all monies earned by all parties and I am seeking criminal sanctions against all parties who have used my product or derivative versions of it in the Securall.

I trust you have all been advised legally that you are facing, if I am successful, fines of $250 000 for infringing my copyright and failing to cease using it and possible prison terms. Copyright theft is an act of commercial piracy and it allows for criminal sanctions which I am pressing the Court to impose on all parties.

The Copyright Act 1968 provides for individuals to be fined up to $50,000 and for corporations to be fined up to $250 000. The possible term of imprisonment is up to five years.

These are the criminal sanctions permitted for infringing someone’s copyright property. Your lawyer should have given you this information by now so you can make an informed decision to resolve this with me or continue to fight me in Court. I am guessing that you all know and that you all chose to fight me to support Infa Secure Pty Ltd. You can look this information up yourself or you can phone the copyright council of Australia and they will give you free information.

What each of you has done to me is beyond belief and I am wanting to take this public now to ensure the public knows that a distribution company stole my intellectual property and that every retailer supported the theft and refused to do anything to assist me to recover my property. Your loyalty to Infa Secure Pty Ltd has been noted and it needs to be made public.

(Errors and omissions in original)

109    In her postscript, Ms Crocker added:

ps. I am assuming you all wish for me to still communicate information to you as none of you emailed me and asked me to cease as I asked when your lawyer demanded that I give him an undertaking not to communicate with you any further. I am still seeking an order to seek the Court direct your lawyer to withdraw representation due to a conflict of interest given it was your lawyer who encouraged you to infringe my property with Infa and that decision should be made in the coming week I understand as I have drawn to the attention of the Court that you all need time to engage an alternative lawyer to represent you.

Again, if you do not wish for me to communicate with you as your lawyer has stated, then you need to personally email me and ask me to stop and I will provide that request as evidence to the Court.

(Errors and omissions in original)

110    As with the email in Charge 6 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 18

111    Charge 18 concerns an email Ms Crocker sent at 12.19 pm on 21 February 2015. It was sent to Mr Andros Chrysiliou of Chrysiliou Lawyers, Mr Matthew Horsfall of Infa-Secure, Ms McHugh of Toys ‘R’ Us, and the email addresses described above (see Charge 1). It was addressed to “Mr Chrysiliou”.

112    This email is quite lengthy – 5½ pages. Infa-Secure relied upon the content of a large part of it. Rather than quote those parts in full, I will extract some of the more pertinent aspects of them. Ms Crocker began where she had concluded in her previous email. That is, she noted that she was copying retailers into all communications. She stated:

I am also copying retailers on everything as it is possible they will need to engage another lawyer in the coming week and they need to know what is taking place, and because twice I have asked them to email me if they do not want me to communicate with them after you demanded that I not communicate with them further, and not one of them has asked me to cease communications with them. Clearly they are wanting to know what is going on and I think you will find that they all know the truth now, they want this over and they want to know that they will not be fined horrendous amounts of money or sent to prison... something you cannot assure them unless this is resolved because you do not have the right or authority to pre-empt what Justice Reeves will order. I remind you that I have requested criminal sanctions against all parties and if I am successful, it is possible that will be granted. I believe Justice Reeves will look at the communications; he will note that all parties were provided all information throughout the process and that none of them dismissed your firm and attempted to settle this out of court. There is a reason I copy retailers and that is to ensure that at all times they are making an informed decision not to resolve this with me for their own individual situations. That they know they have the ability to and they are instead allowing your firm to represent them and try to get them out of this and that they know that if I win, they can’t sue you or Infa to recover any monies they have to pay me back.

I do understand that you have encouraged them not to settle because if one settles, it weakens your case in court as it means that one has accepted responsibility, but you have offered retailers a guarantee that I won’t win and again, you can’t do that because that would be pre-empting the judges’ decision. I, on the other hand, can assure retailers that there is a strong possibility that I will win because I am the inventor and the law supports me in protecting my copyright property. As previously stated, I may not be granted all copyright I have claimed but I will be granted a reasonable portion of it in the name, packaging style being typographical arrangement, user instructions, supporting slogans etc. These are things you need to assure retailers that I own and will be found to be copyright infringed which will result in infringement damages.

I am now willing to take my chances in court and seek recovery of my property, damages and costs and punitive damages against all parties who have unlawfully used my property.

I understand that retailers demanded that Infa Secure Pty Ltd fix this problem and ensure they are not sued and I think it is time to assure retailers that Infa Secure Pty Ltd have absolutely no intention of fixing this matter, that they have engaged your firm to try and make it go away and to ensure retailers can’t sue Infa when and if I win and that they refuse to pay me what is owed to me or return my property. I think it is also time that you were honest with retailers and tell them what they are facing if I am successful in this matter and that it will bankrupt many of them.

I am not stopping this action and the moment the suppression order is lifted, consumer litigation is being filed in the Supreme Court of Australia (sic). Damages will be sought against both Infa for manufacturing a counterfeit product and against retailers for selling it knowingly and again, the retailers can’t sue you because you signed them up to represent them. You really did protect your firm in this didn’t you? You made very sure that you protected your firm first and that is why I have filed to seek you be ordered to withdraw. You are protecting you, not the clients you are representing. And unfortunately, you are only protecting three respondents, the rest to be added you will not have the opportunity to defend and protect Infa or your firm from being sued and there are many of them to come.

I am also in the process of completing for filing a lawsuit against IP Australia for finding that I am not the owner of my copyright based on Infa’s fraud and seeking extensive damages for their neglect in identifying the fraud, neglect in identifying that my property is copyright protected when they had my product and your clients counterfeit one to compare and for their failure to remedy the matter and prosecute Infa. I am being represented in that matter by a lawyer who is very good at holding government accountable for their mistakes. I am also seeking damages against Senator Cormann for accepting your firms’ deceitful statement of facts and for failing to investigate the truth and Minister MacFarlane for his refusal to allow me information I needed to defend myself in court. Infa has caused a lot of problems for a lot of people and I will seek damages against any person and completely ignore Infa if I have to in order to ensure this is exposed once and for all. Everyone else can sue Infa and I will simply hold those accountable that Infa conned to put it bluntly.

You seem to think that if you mess me around that I will become frustrated and walk away and I can assure you that I won’t. I trust the Federal Court system, I trust the Judge to see the truth and I am content with the evidence I have provided. As I said previously, you have not provided anything probative to prove that Infa own the property and did not steal it from me and you have tried to rely on other laws and legislations that cannot protect Infa or retailers in their theft of my copyright matter. As stated, even death cannot separate me from my copyright so I am confident there is no law or miracle you can find to manipulate to outmanoeuvre me. But then you don’t need a law or miracle with the three respondents you are representing because they can’t touch you or Infa if they lose anyway. Is that why Infa offered to represent them all??? Because they knew I would win because they stole from me and they had to ensure the retailers couldn’t sue them when they lost?

…

If you had anything legal to fight me with, you would have commenced proceedings against me under the copyright act which allows you to seek damages for defamation or for advising retailers they could be sued when they can’t. you didn’t, instead your firm participated in criminally defaming me to retailers when I did nothing wrong and your firm encouraged retailers to continue to break the law in infringing my property which is why I am now suing them. How do you explain to them that your firm is partially responsible for the mess they are in and that they cannot sue you now because they have engaged you to represent them??? The games never end with your firm and Infa do they? Tell people they can break the law and then offer to defend them so when they lose, they can’t sue you... very clever but not so clever that it has not been noted and identified to the court. As I said this week, you and Infa need to be separated and this conspiracy needs to be broken between you where you work together to make money out of harming other people.

I hope the Judge takes your firm to task over this and sends this to the relevant authority to address the conduct of your firm in this matter. This is the first thing you should have advised retailers when they allowed you to represent them and if you didn’t then that needs to be reported to the relevant authorities to determine why you are representing parties who cannot seek recourse against the company who provided them with stolen goods if they lose in court. I honestly hope you did your job as a lawyer as you stated to me that you are this week when I reminded you that you are not a copyright lawyer. I hope you fully explained to your clients what would happen to them if they lost and what recourse they DON’T have and should have if they were represented in a way that was not a conflict of interest.

As for Infa, for the last time, they stole my property, they lied to me about the volume they sold when they paid me pittance royalties and they committed fraud against the Commonwealth to have my property removed from my name. You have the facts and the evidence and you need to stop wasting my time in going over and over this. Kerry was given the information copied in the same emails I sent the Deputy Registrar of IP Australia in early 2013 so there has NEVER been a time when your firm was not in possession of the evidence.

As for rumours about your client that I raised the other day, I am not interested and I will bring every business man to court who gave me that information. I don’t need to defend myself in those allegations and it is probably time it was addressed once and for all. At least I had the decency to say that I was told the information and I have never repeated it to other parties. When did your firm afford me that respect when you told retailers that I was committing extortion and that I was some sort of terrible criminal??? If you have a problem with the information then sue me and we can address it in court on the record and perhaps then the rumours can be addressed once and for all. As I said, there is a reason people are saying this and I won’t be held accountable but I do think there is foundation to the allegations given Richards’ treatment of me. As I said the other day, you need to find out why he started committing these crimes late in life after a lifetime in business without committing these types of crimes... there is a reason and it was suggested to me that what I raised the other day may be the Genesis of it all in trying to prove that stealing does not cause that level of harm to people as he is suffering guilt. Personally, I think it has psychological merit and would be more than willing to raise it in court and seek the advice of a psychologist on the matter.

(Errors and omissions in original)

113    Ms Crocker stated that it was time for her to assure retailers that Infa-Secure had “absolutely no intention of fixing this matter” and that Infa-Secure needed to “tell [retailers] what they are facing if [she] is successful in this matter and that it will bankrupt many of them”. She stated:

How disgusting... represent the retailers after you sell them stolen property, make sure they can’t sue you and watch them bankrupt while you continue on in business.... Do you honestly think I will allow that to happen to the rest of the respondents I will add??? Do you think I will let you do that to these respondents??? Perhaps now you can understand why I have filed the application to seek that you withdraw your representation of them all...

(Errors and omissions in original)

114    And later she said:

If necessary, I will withdraw the present retailers to protect them from the harm Infa has just caused them when I add further respondents to the matter to ensure they are not bankrupted and unable to seek recourse against Infa for this mess. Hopefully that will be three customers Infa will lose in business then and see the beginning of Infa experiencing what they have done to me. I am angry with retailers selling my property and for being so stupid to believe Infa and your firm when you encouraged them to keep selling it but I will not destroy their businesses... to do so would mean I am as bad as they are when they destroyed mine and I will not allow myself to be reduced to like behaviour. Hopefully they will just let Infa go as a supplier in the interests of child safety and get on with their businesses.

115    She then continued with numerous allegations about Infa-Secure’s conduct, stating:

… they stole my property, they lied to me about the volume they sold when they paid me pittance royalties and they committed fraud against the Commonwealth to have my property removed from my name.

116    Ms Crocker also indicated in the email that she intended to go public with this information. She stated that she would contact “every company Infa have trade agreements with to suggest that they monitor their products and ensure Infa have not counterfeited their property also”. She then stated that once the suppression order was lifted, she would notify the media so that “parents will not trust any products provided by Infa”. Ms Crocker then posed the question: “How long will Infa survive when they are publicly exposed for counterfeiting?”

117    As with the email in Charge 6 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 19

118    Charge 19 concerns an email Ms Crocker sent at 3.14 pm on 23 February 2015. It was sent to Mr Andros Chrysiliou of Chrysiliou Lawyers, Mr Matthew Horsfall of Infa-Secure, Ms McHugh of Toys ‘R’ Us, and the email addresses described above (see Charge 1). A Registrar of this Court was also copied on the email. The email was addressed to “Mr Chrysiliou”.

119    It began with a number of familiar claims about Infa-Secure’s conduct, as follows:

I am the copyright owner of the properties. The former patent has NOTHING to do with the product I eventually developed and if you understood copyright law, you would KNOW that the name of SECURAP is copyright protected as are the user instructions, the slogans, the packaging style and typographical arrangement. This is in addition to many of the components of the product which were developed after the patent. STOP trying to use patent law, the patent expired many years ago and does not factor into today’s matter.

Do NOT tell me that Infa did not steal my property or another entity of Infa. The evidence is in the fact that they stole my name, packaging, instructions, slogans etc etc etc and applied their name to it. I have successfully created the link between Infa and I with the trade agreements, the royalty payments etc etc...

The trademark is of NO significance whatsoever. I never needed a trademark and only took it on the wrong advice of IP Australia to protect my copyright material after receiving a letter tricking me to do so. The letter sent to me after Gavin of your firm tried to assure me I didn’t own my property due to an expired patent. I am guessing that letter was fraud in itself as IP Australia have no record of it whatsoever and I didn’t know who IP Australia were... when I last dealt with them, they were the Australian Patent Office APO as can be found in my trademark placemats.

I am NOT fighting trademark law in this matter neither am I fighting patent law.. this is wholly COPYRIGHT law only and I would strongly suggest that you familiarize yourself with the copyright act especially the infringement sections. I gave you the phone number for the Copyright Council of Australia who can give you advice in this matter and explain fully to you what I own and what was infringed or stolen..

I also am aware that Infa are not named as respondents to the matter.. they are however, in addition to your firm, a party who encouraged the infringement of my property which is protected by copyright, they made derivative copies and sold them and published them and they claimed to own it by placing their name on it. Check the copyright act and determine for yourself what it says about publishing, copying, manufacturing copies and selling. It is an OFFENCE under the act which attracts criminal sanctions in addition to civil litigation.

I am not naming INFA as respondents as it is my intention to receive a judgement of the Federal Court of Australia and at that time, I will pursue INFA or Richard Horsfall with criminal prosecutions. As I have told you before, the CDPP is quite prepared to prosecute this once I receive a judgement from the Federal Court.

120    At that point in the email, Ms Crocker appeared to indicate an intention not to abide by her undertaking. She stated:

I am not standing by any undertaking to not communicate with respondents made to you. Respondents have asked for information and until they personally and individually contact me and ask me not to communicate with them then I have to do as they request given they are most likely soon to need to engage a new lawyer in the matter. I am assuming by your email today that respondents are upset with me communicating with them and offer that it is not difficult for them to email me themselves and tell me to stop communicating with them if that is what they now want.

…

The Dept of Fair Trading will now do as they need to in this matter and I have received legal advice today that I am free to “speak” to anyone and give over any information to any authority or otherwise, I just can’t provide a copy of the originating application to any person or entity. I am sure you understand the implications of the involvement of the Dept of Fair Trading in that they can seek action against all retailers and parties knowingly selling counterfeit and unsafe goods for use on babies and children.

121    As with the email in Charge 6 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 20

122    Charge 20 concerns an email Ms Crocker sent at 12.08 pm on 24 February 2015. Ms Crocker addressed this email to “Dear Retailer”. She sent it to a large number of email addresses, including:

(a)    Mr Chris Gregory;

(b)    websales@bubs.com.au;

(c)    support@mybabywarehouse.com.au;

(d)    info@made4baby.com.au;

(e)    babycarenursery88@gmail.com;

(f)    info@babyvillage.com.au;

(g)    info@babyland.com.au;

(h)    sales@toyworldnt.com.au;

(i)    brian@TheCapsuleKing.com.au; and

(j)    info@babytrain.com.au.

123    The first addressee, Mr Gregory, has sworn affidavit evidence that he is the managing director of Sydney’s Baby Kingdom Proprietary Limited (see at [31] above). Mr Moschella has also sworn affidavit evidence that he monitors the email address above: “support@mybabywarehouse.com.au” (see at [32] above). Neither of Sydney’s Baby Kingdom Proprietary Limited, nor My Baby Warehouse is a party to either of the proceedings mentioned in Ms Crocker’s undertaking. Nor is any of the other email addresses above, at least so far as that can be gleaned from those addresses.

124    Since this email introduced a number of new persons to this matter, it is appropriate to set it out verbatim, as follows:

Dear Retailer

In December of 2014, I made application to the Federal Court of Australia seeking costs, damages, compensation and punitive damages for the unlawful use/infringement of my copyright protected properties in the Securap product. I have since added the Securall product as a derivative product infringing my copyright.

On the 12 March, you will be named as a respondent to the application seeking leave of the court to do so. You were given two notices to cease selling, advertising for sale and in anyway using my property unlawfully and failed to do so.

My file number is QUD 647/2014. You can download the statement of claim from the Federal Court website to allow you to understand the application and how it can affect you.

I advise that all attempts to resolve the matter out of court with Infa Secure Pty Ltd have been unsuccessful to date which has meant this now has to proceed to hearing to enable me to recover the properties and monies taken from me unlawfully.

I would strongly suggest you seek legal advice in this matter urgently and advise that I have now successfully made application to the court to seek the Court direct the lawyers for Infa Secure Pty Ltd withdraw their representation of all respondents due to a conflict of interest.

If you would like to discuss this matter with me, please feel free to phone or email me at any time.

(Errors and/or omissions in original)

125    As with the email in Charge 6 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 21

126    Charge 21 concerns an email Ms Crocker sent at 11.01 am on 25 February 2015. Although it was addressed to “Mr Chrysiliou” of Chrysiliou Lawyers, it appears to have been copied to the email address: “info@made4baby.com.au”. This address is monitored by a person named Vanessa Stark (see at [33] above).

127    In this email, Ms Crocker made a number of remarks about the effect of the suppression order I made on 5 February 2015 and about the effect of her undertaking. It is therefore worth setting those remarks out in full, as follows:

I am NOT bound by any suppression order in speaking to any one or advising of my intentions. I spoke extensively to the court before doing anything and I sought the advice of a lawyer who put the information in writing for me with respect to my responsibilities to the suppression order. I remind you this is an order your firm sought to ensure the information was not made public because I advised of consumer litigation against all parties who have been sold counterfeit child safety accessories.

The order reads that I cannot in anyway make available, the originating application. That is it. Everything else is available on the CCP (Commonwealth Courts Portal) for public viewing. The suppression order ONLY relates to the originating application in the format of the originating application.

There is nothing in the order which prohibits me from “speaking” to any one, advising of my intentions, going public and providing evidence and information in any form that is NOT in the body of the originating application.

The undertaking you speak of was given to Justice Dowsett and was ONLY in place until the matter went before Justice Reeves. If you remember, it was an undertaking I chose to give when your firm tried to trick me into signing for orders that prohibited me from claiming to own the property, sell the property and otherwise and I declined to sign anything and Justice Dowsett himself said he would not allow me to sign anything stating I had freedom of speech... the transcript of the court will assist you to remember.

…

… if I have no legal rights then why hasn’t Infa taken action against me to stop me from contacting retailers and had the authorities deal with me. Why do they keep sending letters instead of invoking the authority of the court or police.

(Errors and/or omissions in the original)

128    Ms Crocker also made some further comments about the retailers needing to seek alternative legal representation. She stated:

You need to advise retailers that my application to seek you withdraw your representation is because your firm encouraged the infringement of my copyright when you had evidence of my invention and ownership in the attached letter which is an infringement of copyright law in itself and if found guilty of that offence, then your firm is also to be added to the proceedings and I will be seeking damages against your firm also... you need to tell retailers that if you are found guilty then they have a right to seek damages against you for encouraging them to break the law...

129    She concluded this email by stating she would continue to contact retailers unless they advised her not to. She stated:

cc. Court and retailers.

And once again, I will cease communicating with the respondent retailers when they send me an email asking me to cease. It is not that difficult to write to me and say “Debi, please forward all correspondence to Chrysiliou Lawyers”.. they haven’t so I do as they initially asked of me.

again, if you have a problem with me communicating my intentions to any person and believe I am breaking the law in doing so, then take me to court and let the court work out if I have the right to notify retailers of my intentions and if I have the right to claim to own the property. Stop telling me to do things that suit Infa and let me do what I need to do to recover my property. The law is there to protect me and I do not think myself above it.. Hand up real evidence and stop telling people I am some mad woman who has no entitlement to the property I wholly invented as I have proven time and time again.

(Errors and/or omissions in original)

130    After this email was sent to Mr Chrysiliou, Ms Stark sent a reply email to Ms Crocker stating: “Please take us off your list. We are not a retailer.” Ms Stark then forwarded this email to Tom Hubbard, the Marketing Manager of Infa-Secure (see at [33] above).

131    As with the email in Charge 6 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 22

132    Charge 22 concerns an email Ms Crocker sent at 12.30 pm on 25 February 2015. As with Charge 21 above, the email was addressed to “Mr Chrysiliou” of Chrysiliou Lawyers, but it was also sent to Ms Stark at the following email address: “info@made4baby.com.au”.

133    In this email, Ms Crocker stated:

I am not continuing any further communications with you or retailers as of today.

One of the retailers has communicated to me that the best outcome in all of this would be for all retailers to cease all business with Infa until this matter is fully resolved and Infa do the right thing and I couldn’t agree more.

Retailers have the power wholly to ensure this does not go to court by forcing Infa to undo the mess they caused, releasing retailers from any legal culpability and by either buying me out or paying me out and ceasing to use my property.

Infa do not have a business without the retailers as this retailer showed me and their unity in forcing this to resolution is what will keep it out of court and see it remedied without retailers being sued.

134    In a postscript, she noted the following:

Ps. I was further just contacted by another party and advised they are not a retailer. You need to let people know that simply by advertising the property and promoting it as the property of someone else is enough to be judged as a copyright infringement. Not selling it does not mean it is not being infringed, simply by making it available to the public to view etc is infringement under the copyright act.

(Errors and/or omissions in original)

135    As with the email in Charge 21, Ms Stark forwarded this email to Mr Hubbard of Infa-Secure. And, as with the email in Charge 21 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 23

136    Charge 23 concerns an email Ms Crocker sent at 12.48 pm on 25 February 2015. It was sent to Ms Vanessa Stark at the “info@made4baby.com.au” address. In it, Ms Crocker said to Ms Stark:

… Thank you for letting me know but be advised that if you advertise you are still in breach of my copyright and promoting infringements. You need to cease advertising the product.

137    Ms Stark again forwarded this email to Mr Hubbard of Infa-Secure.

138    As with the email in Charge 21 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 24

139    Charge 24 concerns an email Ms Crocker sent at 12.37 pm on 26 February 2015. Ms Crocker addressed this email to “Dear Retailers”. It was sent to Ms McHugh of Toys ‘R’ Us, the email addresses described above (see Charge 1), a Registrar of this Court, and various other email addresses, many of which were included among the email addresses in Charge 20, as follows:

(a)    “Chris Gregory”;

(b)    “Bubs Baby Shops Websales”;

(c)    support@mybabywarehouse.com.au;

(d)    “Vanessa@ Made 4 Baby”;

(e)    “Sam Khuu”;

(f)    info@babyvillage.com.au;

(g)    info@babyland.com.au;

(h)    sales@toyworldnt.com.au;

(i)    brian@thecapsuleking.com.au; and

(j)    info@babytrain.com.au.

140    Ms Crocker began her email by explaining why she was contacting the retailers concerned. She stated:

Dear Retailers,

I have been contacted by a few of you asking me very specific and important questions following you all being allegedly assured that I do not own my property at all and that I have no legal entitlement to any portion of the property. You have been told that I am unduly frightening everyone and that no court will find that I own this.

Your questions are specifically, how I propose to prove that the property is mine.

Please allow me to explain as best I can and I assure you this is information in the possession of the lawyers for Infa and has been for quite some time. It is also all before the court and much more.

141    Ms Crocker then set out a detailed history of events, which included claims that she had invented the SECURAP product, that she had obtained a patent in relation to it, that she had devised the name “Securap”, and that she had created the packaging and instructions for the product. She also outlined how she originally marketed and manufactured the product.

142    Ms Crocker stated that she intended to seek the leave of the Court to add these retailers as respondents to her proceeding. She then claimed that Infa-Secure was not the lawful owner of the SECURAP product. She did so in the following terms:

... I am the owner and inventor of the property, I am copyright protected in most of the property and that Infa do not have any lawful right of use of the product as they do not own it, did not invent it and are simply using something uncontested that at this moment I cannot recover until the court rules on the matter. I am NOT some mad woman who woke up one morning and decided I wanted to be known as an inventor and picked this product and this company. To believe that is to believe I am utterly insane and the court would issue a psychiatric evaluation of me.

Infa recently changed the product again as they did when they opposed me to IP Australia and I believe they are still infringing my copyright, the product they have now “developed” is contrary to the safety components of Securap in that the Securall won’t collapse on impact ensuring minimal throat contact and in their haste to create a new product to be seen not to be a part of mine, they reversed the usage of the product and forgot to reverse the user instructions. The instructions on the Securall product are the instructions for Securap and you should advise consumers of this when they purchase product as the instructions are contrary to child safety. …

…

It is not my intention to harm any business but I did give everyone notice twice that the product was mine and not to be used and any party I missed in giving notice were notified by Infa that there was a dispute with the product so no party can claim not to know that another person was claiming to own the product …

I have dismissed Infa from the proceeding and asked the Court to refer them to police if I am successful in my application before the court and I will recover my monies from Infa via that avenue. Police have assured me they will prosecute when I receive a judgement of ownership from the Federal Court of Australia.

143    In the concluding paragraphs of this email, Ms Crocker made the following assertions about the continuing effect of her undertaking:

I think that covers most of what I am free to tell you. I am not bound by any undertaking to the court at present as the order was written that my undertaking was in place until trial OR an earlier order was made. Justice Reeves made an earlier order being the suppressing of the originating application so please do not be concerned that I am speaking to you about any of this as some of you have raised. I maintain contact with the court and would never breach an order intentionally. I did confirm with the court first that I was free to communicate with you.

144    As with the email in Charge 21 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 25

145    As mentioned above, Infa-Secure did not pursue Charge 25.

Charge 26

146    Charge 26 concerns an email Ms Crocker sent at 9.53 am on 28 February 2015. It was sent to Mr Andros Chrysiliou of Chrysiliou Lawyers, Ms McHugh of Toys ‘R’ Us, the email addresses described above (see Charge 1), a Registrar of this Court, and various other email addresses, most of which were included among the email addresses in Charge 24 above, as follows:

(a)    “Chris Gregory”;

(b)    support@mybabywarehouse.com.au;

(c)    “Vanessa@ Made 4 Baby”;

(d)    “Sam Khuu”;

(e)    info@babyvillage.com.au;

(f)    info@babyland.com.au;

(g)    sales@toyworldnt.com.au;

(h)    brian@thecapsuleking.com.au; and

(i)    info@babytrain.com.au.

147    Ms Crocker addressed this email to “Mr Chrysiliou” of Chrysiliou Lawyers. In a similar manner to her previous emails, Ms Crocker proceeded to assert that she was the inventor of the SECURAP product and that Infa-Secure had stolen her property in it. She stated:

Copyright is owned by me. I am the inventor of all aspects of the product, packaging, it is a first of its kind so was not copied from anything similar and I invented it as a mother, not through any form of employment or otherwise. It is wholly my intellectual property.

…

Your repeated advice to retailers claiming that Infa own the product is a direct breach of copyright law and an infringement and for that I can seek further damages from your firm. It is your duty to advise retailers that the matter will be determined by the court, not assure them that your client owns the product especially when your firm has held all evidence to the contrary for several years now and was instrumental in closing down Infa Products and starting Infa Secure. …

…

The date of commencement for infringement needing to be within the six year period would be dated at February 2011.

This is when Infa Products ceased to exist and Infa Secure was commenced. Infa Products failed to transfer a trade agreement to Infa Secure and I would suggest that Infa Secure seek damages against Infa Products for failing to transfer the agreement and therefore, placing Infa Secure Pty Ltd in a position of infringing my copyright without the protection of a trade agreement formerly held with Infa Products Pty Ltd.

…

Prior to Infa Secure stealing the product, I was only able to address this matter under a breach of the trade agreement. Now and only because there was a change of company, I have a new commencement date for infringement that places me well within the six year time frame to seek infringement action.

148    Later in this email, Ms Crocker stated that she would be involving many more retailers in her proceeding, and informing the media about the issues raised. She stated:

I have just been given access to some six hundred retailers around Australia and will be issuing intent to sue notices on all of them over the next few days.

…

I have also spoken with a journalist now and Infa will most likely be contacted this week to enable them to provide their reasons for taking my property from me in an unlawful act and providing a counterfeit and inferior form of product to babies.

149    She closed this email with some assertions about the safety of the product supplied by Infa-Secure, as follows:

… I am content now to leave this with the court and seek media exposure of the matter to ensure the public do know the type of company that Infa is as opposed to the safe company they promote themselves to be. Infa Secure.. a promotion of secure products when in fact the evidence exists to prove that Infa are anything but suppliers of secure products and in fact, provide at least one counterfeit product that is inferior, unsafe and does not promote accurate user instructions.

(Errors and/or omissions in original)

150    As with the email in Charge 21 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 27

151    Charge 27 concerns an email Ms Crocker sent at 11.41 am on 28 February 2015. As with the email in Charge 23 above, it was only sent to Ms Stark at the address: “info@made4baby.com.au”. In it, Ms Crocker stated:

Dear Vanessa,

while you continue to infringe my property and offer a counterfeit version of it for sale on behalf of another company I am entitled to communicate with you to ensure that you understand what is required of you and to allow the court to see that you are flagrantly infringing my property. this means deliberately infringing my property for which I can seek far higher damages.

I would strongly suggest you take the time to learn the truth rather than feel as though you are being asked to take a side. I don’t need you to take my side, the court will find the truth and you need to understand that my communication to you is to assist protecting you from punitive damages in allowing you to make an informed decision to infringe or remove my property from your website until the court rules.

I take your email to mean that you fully intend to continue to infringe my property without any regard for the truth in this matter and are willing to subject yourself to punitive damages should I be successful. I will file your response with the court.

152    Ms Stark forwarded this email to Mr Hubbard of Infa-Secure (see Charge 21 above).

153    As with the email in Charge 21 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

Charge 28

154    Finally, Charge 28 concerns an email Ms Crocker sent at 12.18 pm on 28 February 2015. It was sent to Ms Stark at the email address: “info@made4baby.com.au”. It was sent in reply to an email Ms Stark sent to Ms Crocker requesting that she stop contacting her because she found Ms Crocker’s emails “threatening” and “distressing”. Ms Crocker responded to this request by stating:

Hence your need to speak to a lawyer and my communication is a legal threat to sue.

155    In response to this, Ms Stark again emailed Ms Crocker, stating:

I have clearly asked you to cease sending me emails and to stop harassing me. I will not be reading or responding to any further emails from you.

156    To this, Ms Crocker replied:

That is fine. I will forward service documents when filed.

157    Ms Stark then forwarded this whole email chain to Mr Hubbard of Infa-Secure, saying to him “[a]nd now it’s all over from my perspective”.

158    As with the email in Charge 21 above, this email did not purport to serve any documents, nor make any direct, or indirect, reference to that subject matter.

The principles relating to contempt

159    Having outlined the 27 charges Infa-Secure has made against Ms Crocker, it is next necessary to outline the principles relevant to contempt of court in general, including contempts involving a breach of an undertaking given to the Court. Section 31(1) of the Federal Court of Australia Act 1976 (Cth) provides this Court with the same jurisdiction to punish a contempt of this Court as that possessed by the High Court. The High Court’s power to punish a contempt of its power and authority is the same as that which was possessed by the Supreme Court of Judicature in England in 1903: see s 24 of the Judiciary Act 1903 (Cth).

160    An undertaking is a formal promise to the Court to act or refrain from acting in a particular manner. Consistent with this observation, r 41.04(2) of the Rules specifically requires parties to comply with an undertaking given to this Court. It states:

41.04 Failure to comply with Court order

…

(2)    A person who undertakes to the Court to do, or not to do, an act or thing, must comply with that undertaking.

(Emphasis in original)

161    If a person does not comply with r 41.04(2), the Court may act to enforce the undertaking, either on its own initiative, or on the application of a party or person who has sufficient interest in the proceeding: see r 1.40 of the Rules.

162    In Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321 (Salvato), Garling J provided the following comprehensive and helpful summary of the principles relating to contempt of court, with citations of the leading authorities (at [126]–[130]):

126    It is convenient if I set out the principles relating to contempt of court, which I understand I am bound to apply:

(a)    Regardless of whether these proceedings are categorised in the historical sense, as criminal or civil contempt, it is clear that the charge must be proved beyond reasonable doubt: Witham at 529;

(b)    A contempt of court can be constituted by the breach of an undertaking as well as by breach of an order of the court: Trade Practices Commission v C G Smith Pty Ltd (1978) 30 FLR 368; at [375]; Spindler v Balog (1959) 76 WN (NSW) 391; Circuit Finance Australia v Sobbi [2010] NSWSC 789 at [10];

(c)    An undertaking must be capable of being complied with: Australia Prudential Regulation Authority v No 7) [2007] FCA 1609 at [40]; Matthews v Australian Securities Investment Commission [2009] NSWCA 155 at [16] per Tobias JA;

(d)    A person cannot be found guilty of a contempt of court for breach of an order or an undertaking where the terms of the undertaking are ambiguous: Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 515–6 per Owen J. The ambiguity must be such that it cannot be said what it was that required compliance: Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [56]–[57] per Beazley JA;

(e)    In construing the terms of an undertaking, the court seeks to give meaning to an undertaking if its terms so permit. The terms of the undertaking should be given a sensible meaning, consistent with its actual terms. It must be possible on the meaning given for the undertaking to be capable of being obeyed. The context in which an undertaking is given is relevant in understanding it, and giving it meaning: Pang at [57], [59] per Beazley JA.

127    Where the contempt of court consists of a failure to comply with an order of the court (or an undertaking), it must be demonstrated that the contempt was wilful and not merely casual, accidental or unintentional: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98. However, it is not necessary for the applicant to prove that the contemnor intended to breach an order of (or an undertaking to) the court: see Anderson v Hassett [2007] NSWSC 1310; Mudginberri at 111; Matthews at [16] per Tobias JA.

128    It is not necessary to prove that the contemnor was aware that his or her conduct constituted a breach of the undertaking: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143 per Lindgren J; Metcash Trading Ltd v Bunn (No 5) (2009) FCA 16 at [9] per Finn J.

129    As Brereton J said in Anderson at [6]:

The statement in Mudginberri (at 111) that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional, does not require proof of a specific intent but permits an alleged contemnor to show by way of exculpation that the default was “casual, accidental or unintentional” …

130    It would not be a casual, accidental or unintentional default where the party bound by an order (or an undertaking) misconstrued the terms of the undertaking. As Hodgson JA said in Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 at 36:

[36]    It is very desirable that orders be completely self-contained and self-explanatory. However, as pointed out by Campbell J in Kirkpatrick at [55], the recipient of an order is expected to try to understand and obey it. In my opinion, in considering whether an order is expressed so that the recipient knows or plainly should know what is required, it may be appropriate to have regard to the circumstances in which the order is made, including the terms of the reasons given for the order and elements of applicable law.

[37]    In my opinion also, if the only ambiguity on the face of the orders is between two meanings, and the recipient is shown to have breached the order whichever of the two meanings is adopted, that may in any event be sufficient to establish contempt, at least unless it appears that the breach may have been due to uncertainty as to what steps were required.

163    These principles have been reaffirmed in more recent decisions, including by the High Court in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21 and, before that, by the Full Court of this Court in Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate (2014) 225 FCR 210; [2014] FCAFC 101. I will use these principles to guide me in my determination of this application.

The contentions of the parties

164    Infa-Secure contended that Ms Crocker gave her undertaking to the Court willingly and in circumstances where she understood its import. It contended that, by sending each of the emails particularised in the 27 statements of charge, Ms Crocker had repeatedly and deliberately breached her undertaking. That was so, it contended, because:

(a)    in each of her emails, Ms Crocker communicated with a person;

(b)    each communication related to the subject matter of proceedings QUD 647 of 2014 or QUD 9 of 2015; and

(c)    none of the communications was made for the purpose:

(i)    of seeking legal advice;

(ii)    to serve a document filed in the Court on a party to either proceeding; or

(iii)    otherwise by way of service, including originating service.

165    In relation to [164(c)] above, Infa-Secure contended that the emails particularised in the following charges purported to serve documents, but went beyond that purpose because they were not communications made solely for that purpose: Charges 3, 4, 5, 8, 9, 11, 15 and 16.

166    In her unsworn affidavit dated 16 March 2015 (see at [38] above), Ms Crocker set out a number of contentions with respect to Infa-Secure’s contempt charges. She also made some other contentions in the written submissions she filed shortly before the hearing of this application. They were to the effect that she understood her undertaking only applied until February 2015 and that, from that time, she:

… was free to speak, communicate in any way with any party which means that emails dated from this date are not relevant to the hearing for contempt.

167    This assertion is contained in some of the emails set out above: see at [127] and [143]. For example, in the latter email related to Charge 24, Ms Crocker stated:

I am not bound by any undertaking to the court at present as the order was written that my undertaking was in place until trial OR an earlier order was made. Justice Reeves made an earlier order being the suppressing of the originating application so please do not be concerned that I am speaking to you about any of this as some of you have raised.

168    It appears to be based on a statement Dowsett J made during the hearing on 12 January 2015 where his Honour stated:

And I will only make this order until some time early in February when you will have to apply to Justice Reeves for an expedited hearing.

The expression “any person” is to be construed broadly

169    While Ms Crocker’s subjective understanding of the meaning of her undertaking is irrelevant in any determination of its proper meaning, I will begin, nonetheless, by addressing the assertions she made in her unsworn affidavit dated 16 March 2015 (see at [38] above). There, Ms Crocker claimed her undertaking allowed her to communicate with “a party in one way or another”, “retailers who … knew that I was commencing legal action …” and “… anyone who already knew about the case”. Conversely, she claimed that her undertaking only prevented her from communicating with “anyone who had not heard about the case and it prohibited [her] from going public”, or with “persons outside the proceedings”.

170    None of these claims is sustainable from the plain meaning of the text of her undertaking, particularly when considered in the context in which it was provided. I will begin with the text. The pivotal words of the undertaking are that Ms Crocker was not to communicate with “any person”. The ordinary meaning of each of those words is extremely broad. The word “any” is, in this context, used as an adjective to refer to (see Macquarie Dictionary online):

1.     one, a, an, or (with plural noun) some, whatever or whichever it may be …

2.     in whatever quantity or number, great or small:= …

3.    every …

4.    (with a negative) none at all

5.    a great or unlimited (amount) …

171    Then the word “person”, in this legal context, means “any human being or artificial body of people, having rights and duties before the law”: see Macquarie Dictionary online, sense 10. Thus, the meaning of the two words combined extends, in the present context, to include every human being or corporate body connected with these two proceedings. That meaning, therefore, includes the three respondents to Ms Crocker’s proceeding and, subject to the qualification expressed below, anyone else connected with that proceeding, whether they already knew about it, or not. And, apart from the wide import of those words, the conclusion that the word “person” included a party to Ms Crocker’s proceeding is supported by the fact that the exceptions expressed in clauses (a) to (c) of the undertaking specifically refer to a “party”. That exception would be unnecessary if the word “person” did not include a party.

172    This broad construction of the words “any person” also finds support from the context in which Ms Crocker’s undertaking was given. In the first place, it was provided to obviate the necessity for the Court to make the interlocutory injunction order sought by Infa-Secure. Further, that interlocutory injunction application was directed to the same communications made to the same persons as were the subject of the interlocutory injunction application Infa-Secure had sought to obtain in Ms Crocker’s proceeding. Both applications were therefore directed to preventing Ms Crocker from using the existence of her proceeding as a pretext to make allegations of the kind she made in her email communications to the respondents to her proceeding during December 2014, immediately after that proceeding was commenced by her. This is reinforced by the fact that Ms Crocker discontinued her proceeding against Infa-Secure to prevent it using her proceeding as a means to obtain an injunction to prevent her from continuing to make such communications to the respondents to her proceeding.

173    Nonetheless, despite the breadth of the ordinary meaning of the words “any person”, in the context in which Ms Crocker’s undertaking was given, I do not consider those words can be so broadly construed as to prevent her communicating with the lawyers for any party to either set of proceedings, namely Chrysiliou Lawyers, nor to prevent her communicating directly with the applicant in this proceeding, namely Infa-Secure. To construe her undertaking as preventing those forms of communication would, in my view, place unnecessary constraints on her fundamental right to access the jurisdiction of this Court and to conduct any proceeding in it in the usual manner: see Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311 at 314–315 and 318–319; Ramsey v Skyring (1999) 164 ALR 378; [1999] FCA 907 at [51]; and Levinge on behalf of the Gold Coast Native Title Group v State of Queensland [2012] FCA 1321 at [58]–[61]. Put differently, while I consider the constraints imposed on that fundamental right by the construction outlined above are necessary, in the circumstances of this matter, to ensure that the proceedings are conducted within proper bounds, I do not consider that necessity extends to the two forms of communication identified above. Furthermore, given that Ms Crocker is unrepresented, such a constraint would unnecessarily interfere with her ability to communicate directly with Infa-Secure to attempt to resolve her dispute with it, contrary to the principle that the parties to litigation before the courts should be encouraged to settle their disputes: see Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; [2001] HCA 66 at [74] per Kirby J and Nau v Kemp & Associates [2010] NSWCA 164 at [103] per McColl JA (who, along with Sackville AJA, agreed with the orders of Campbell JA).

174    However, this construction of Ms Crocker’s undertaking does not avail her in her defence of any of the 27 charges. That is so because each of her email communications with Chrysiliou Lawyers and/or Mr Horsfall of Infa-Secure was also copied to a person who fell within the “any person” terms of her undertaking discussed above. In the case of Chrysiliou Lawyers, with one exception, each email that was sent to that firm was also copied to one, or all, of the three respondents to Ms Crocker’s proceeding (Charge 3 see [53], Charge 4 see [56], Charge 5 see [59], Charge 10 see [80], Charge 11 see [84], Charge 12 see [86], Charge 13 see [89], Charge 14 see [94], Charge 15 see [97], Charge 18 see [111] and Charge 19 see [118]). The exception was the email for Charge 21, which was copied to Ms Stark (see at [126] above), who squarely fell within the expression “any person” because she was neither a party to Ms Crocker’s proceeding, nor a retailer (see at [33] above). Similarly, in the case of Mr Horsfall, each email that was sent to him was also copied to one, or all, of the same persons (Charge 6 see [62], Charge 7 see [70], Charge 8 see [75], Charge 9 see [78], Charge 10 see [80], Charge 13 see [89], Charge 14 see [94], Charge 16 see [102], Charge 18 see [111] and Charge 19 see [118]).

175    Finally on this aspect, it is worth adding that, even if Ms Crocker’s construction of her undertaking were to be adopted (which, on any sensible reading, it plainly cannot be), that construction would not extend to her sending the email in Charge 17 to “Dear Retailer”. Nor to permit her to send the emails she sent to the group of retailers reflected in Charges 20, 24 and 26. Nor to send the emails to Ms Stark reflected in Charges 21, 22, 23, 27 and 28, which eventually led Ms Stark to ask Ms Crocker “to stop harassing [her]” (see at [155] above).

176    I therefore reject all of the assertions Ms Crocker made in her unsworn affidavit about the meaning and effect of the undertaking she gave to the Court on 12 January 2015.

No time limit on the operation of the undertaking

177    Next, I will address the assertions Ms Crocker made in her written submissions that her undertaking only applied during the period to, and including, the first directions hearing before me on 5 February 2015. There is a number of reasons why that assertion must be rejected.

178    First, nothing was said during the hearing before Dowsett J on 12 January 2015 that could have led to that understanding. During that hearing, Ms Crocker did not, at any stage, place any time limit on the operation of the undertaking she gave to the Court. Nor did Dowsett J, or the counsel for Infa-Secure (see the transcript set out in [39]–[41] above).

179    As to the part of the transcript which may be the source of that assertion (see at [168] above), when it is read in context, it is apparent that his Honour directed that comment to Infa-Secure’s counsel and, moreover, it was made at an earlier stage in the hearing when the form of the interlocutory injunction order being sought by Infa-Secure was under discussion. Subsequent to that exchange, the suggestion was made that Ms Crocker might give an undertaking to avoid the necessity to make such an order. After some further discussion about that suggestion, the hearing was adjourned so that Infa-Secure’s counsel could draft the undertaking in consultation with Ms Crocker. When the hearing resumed, Ms Crocker agreed to give the undertaking in the form so drafted. It follows that the comment in question was not directed to Ms Crocker’s undertaking, but instead to the form of a draft order under discussion much earlier in the hearing. Furthermore, as I have already remarked above (see at [178]), there was no mention of any time limit being placed on the operation of the undertaking during the balance of the hearing. I do not therefore consider that anything said at that hearing could reasonably have led Ms Crocker to understand that her undertaking would only operate until the first directions hearing before me in February 2015.

180    Secondly, I consider that, by their ordinary meaning, the words of the undertaking: “until trial or earlier order”, are clear and unambiguous. Plainly the words “earlier order” refer to an order before the final determination at the trial that directly affects the terms, or continuing operation, of the undertaking. Moreover, they plainly refer to an order in the proceeding in question, namely this proceeding. Conversely, they do not refer to an order of any kind, nor to an order made in a different proceeding, for example Ms Crocker’s proceeding. I do not therefore consider the suppression order made in Ms Crocker’s proceeding could reasonably be said to be an “earlier order” affecting her undertaking in Infa-Secure’s proceeding.

181    Thirdly, despite the fact that her undertaking was briefly mentioned during the directions hearing on 5 February 2015, Ms Crocker did not, at any stage during that hearing, say that she understood that her understanding would cease to operate from that time. To the contrary, the discussion that did occur clearly implied it would continue in effect. The relevant parts of the transcript comprised the following discussion about a suppression order Infa-Secure had sought under r 2.32(3) of the Rules to prevent public access to the documents on the Court file relating to Ms Crocker’s proceeding:

MR FERRETT: …

There has been undertakings given by Ms Crocker as with whom she will communicate and what she will communicate. We would argue, although it doesn’t need to be determined today, that those undertakings have been breached, but, in the meantime, I would ask for an order in terms of paragraph 5.

HIS HONOUR: Ms Crocker, have you read that proposed order?

MS CROCKER: I gave the undertaking, your Honour, to Dowsett J.

HIS HONOUR: Well, this is slightly different. The effect of this order would be to restrict access to that document that you filed –originating application – to the parties to the proceeding. Well, do you want to say anything in opposition to that?

MS CROCKER: I don’t know, your Honour. Honestly, I don’t understand the confidentiality being sought in this matter.

HIS HONOUR: Well, at present, some documents on a file that are filed in the court are available to the public, others are not.

MS CROCKER: Yes, your Honour, I understand that.

HIS HONOUR: The originating application is usually one that is available to the public. What Mr Ferrett is saying is, and I’ve read most of the originating application, that it contains a number of fairly serious allegations - - -

MS CROCKER: Damaging allegations, yes.

HIS HONOUR: - - - about his clients.

MS CROCKER: Yes. I appreciate that.

HIS HONOUR: It alleges criminal activity in their part and so on. What he is doing is seeking an order that that application be - - -

MS CROCKER: Suppressed.

HIS HONOUR: - - - restricted to the parties to the proceeding so only they can read that material.

MS CROCKER: Read the material, yes.

HIS HONOUR: Do you oppose that?

MS CROCKER: I don’t think so. I don’t see a problem with it, your Honour.

HIS HONOUR: Well, then, I will make an order in terms of - - -

MS CROCKER: That doesn’t restrict me from communicating with a law firm, does it?

HIS HONOUR: No.

MS CROCKER: Lawyers or anybody like that, or QPILCH Administration?

HIS HONOUR: No. This is different to the - - -

MS CROCKER: Yes. This is media and public.

HIS HONOUR: - - - undertaking you gave to Dowsett J which contains exceptions. You can communicate with lawyers to seek advice and - - -

MS CROCKER: Thank you.

HIS HONOUR: - - - the other exceptions that were stated in that order. This is to – the effect this has on you is fairly limited. It just means that no one else can read that material apart from the parties to the proceeding.

MS CROCKER: Well, it protects the reputation of the other party until the trial determines the reality. I get that.

(Emphasis added)

182    Fourthly, Ms Crocker first mentioned this claim that her undertaking ceased to operate as from the directions hearing on 5 February 2015 in two emails she sent on 25 February 2015 (see the email for Charge 21 at [127] above and the email for Charge 24 at [143] above). Significantly, the contents of the emails she sent in the days immediately before those two emails clearly show that she believed she was, at that time, unable to “go public” with her allegations while the “suppression order” was in place (see at [116] above) and that she was “not standing by [her] undertaking not to communicate with respondents” (see at [120] above), apparently based on legal advice. Putting aside the questionable accuracy of these statements, it is significant that there is no mention in them of her undertaking having ceased to operate more than two weeks earlier consistent with a belief that she was then free to publicise her allegations. I infer from all this that the claims in her email of 25 February 2015 were therefore an afterthought that she came to on that date. Finally on this aspect, it should also be recalled that, throughout the period before and after the first directions hearing on 5 February 2015, Infa-Secure’s lawyers continually warned Ms Crocker that her email communications were in direct breach of the undertaking she had given to the Court (see at [35] above).

183    Fifthly and finally, despite the fact that she was soundly disabused of this notion when she appeared at the next directions hearing on 12 March 2015, Ms Crocker has still maintained that her undertaking ceased to operate on 5 February 2015 in her written submissions on this application filed in early June 2015 (see at [166] above). That disabusement occurred in the following circumstances. At that March directions hearing, Ms Crocker indicated that she wished to apply to be relieved of her undertaking. During the discussion about that application, the following exchanges occurred:

MR FERRETT: There’s the undertakings Ms Crocker gave to Dowsett J in January, and then your Honour, on my application last time, ordered that the originating application not be available for publication, and I gather Ms Crocker is referring to the latter of those.

MS CROCKER: Well, I’m referring to both, because the first order actually says from Dowsett J that I was to give that undertaking until filed or until another order was made, and then you made a new order, your Honour, and ..... suppressed the originating application.

HIS HONOUR: And your application seeks to have you released from the undertaking and - - -

MS CROCKER: Well, as far as I’m concerned, your Honour, the undertaking doesn’t exist any more because you made a new order.

HIS HONOUR: No, no, no, no. It exists.

MS CROCKER: That’s my understanding.

HIS HONOUR: Well, that’s wrong, Ms Crocker.

MS CROCKER: Okay. Well, that’s what I actually - - -

HIS HONOUR: The undertaking you gave to the court continues until trial or earlier order means until an order affecting that order.

MS CROCKER: Okay.

HIS HONOUR: So in the case where the matter has not proceeded to trial, an order can be made releasing you from that undertaking, but you require an order to that effect.

MS CROCKER: Okay. So your order didn’t overrule that.

HIS HONOUR: I - - -

MS CROCKER: Your order didn’t replace that, then.

HIS HONOUR: It certainly didn’t. What’s more, it’s in different proceedings, so it certainly didn’t. If you want to be released from that undertaking and/or to have the other order set aside – so the undertaking was given in - - -

MS CROCKER: In January, I think.

HIS HONOUR: - - - Infa-Secure’s proceedings, and the order – the confidentiality order in relation to the originating application in your proceedings was made in your proceedings, obviously.

MS 5 CROCKER: Yes.

HIS HONOUR: But I will deal with - - -

MS CROCKER: So can I have that lifted? Can I withdraw my undertaking? How do I do that? Can I do that today?

HIS HONOUR: I will consider that next - - -

MS CROCKER: Next week.

HIS HONOUR: Next week.

MS CROCKER: All right. Thank you, your Honour.

(Emphasis added)

184    For completeness, I should record that, when the hearing of the matter resumed on 20 March 2015, I asked Ms Crocker whether she still wanted to pursue her application to be relieved of her undertaking and, after some discussion, she said she would prefer to wait and get legal advice on it. She has not since renewed that application.

185    Taking into account the matters set out above, I reject Ms Crocker’s contention that she reasonably understood that her undertaking ceased to operate from the first directions hearing on 5 February 2015.

186    Finally on this aspect, it is worth adding that, even if Ms Crocker’s contention in this respect were sustainable (which it plainly is not), it would not provide an answer to any of the emails she sent before that directions hearing took place, namely those covered by Charges 1 to 12 (inclusive).

The 27 charges are established beyond reasonable doubt

187    Having disposed of Ms Crocker’s two main contentions about her undertaking, it remains for me to address the question whether Infa-Secure has proved its 27 charges against Ms Crocker to the requisite standard, namely beyond reasonable doubt. For the reasons that follow, I consider it has.

188    First, on an objective and fair reading of the undertaking, I consider its meaning is clear and unambiguous. As I have already observed above, by its text, it applies to communications with “any person”, which (putting aside the exceptions discussed below at [192]) extends to, and includes: any party to Ms Crocker’s proceeding; any retailers, whether parties to the proceeding, or not, and whether they were already aware of the proceeding, or not; and to anyone else. However, for the reasons set out at [173] above, I do not consider it extends to the lawyers for any party to either proceeding, nor to Infa-Secure itself, as the applicant in this proceeding.

189    Secondly, the ordinary meaning of the word “communicate” extends to include email communications. I also consider it includes the act of sending an email to an operating and current email address. In my view, that act constitutes a communication with the person or persons using that email address.

190    Thirdly, in context, the ordinary meaning of the words in the undertaking: “the subject matter of [the] proceeding[s]”, plainly extends to, and includes, the matters outlined in the originating application in both proceedings and the statement of claim filed in Infa-Secure’s proceeding. While Ms Crocker did not file her statement of claim until mid-February 2015, I do not consider that fact affects the extent of the matters covered by these words. That is so because the aforementioned documents together relate to the whole of the history of the dealings between Ms Crocker and Infa-Secure, and between each of them and any traders involved with the sale of the SECURAP product. Thus, I consider the following non-exhaustive list of matters discussed in the various emails fell squarely within the words “the subject matter of [the] proceeding[s]”:

(a)    the allegations of theft, fraud, crime and counterfeiting included in the emails for Charges 1, 3, 6, 8, 9, 10, 11, 13, 17, 18, 19 and 24;

(b)    the observations about Infa-Secure’s Securall product discussed in the emails for Charges 2, 7 and 24;

(c)    Ms Crocker’s claims that the SECURAP product was her “property” included in the emails for Charges 2, 4, 5, 6, 14, 15, 17, 19 and 24;

(d)    the dire consequences Ms Crocker threatened for those retailers selling the SECURAP product supplied by Infa-Secure included in the emails for Charges 1, 2, 4, 6, 11, 12, 16, 17, 18 and 20 to 28 (inclusive), but excluding Charge 25; and

(e)    the claims Ms Crocker made about the use of “my barcode” in connection with the SECURAP product made in the email for Charge 17.

191    For these reasons, I consider each of the emails relating to each of the 27 charges constituted a communication with a person regarding the subject matter of either, or both, of the two proceedings in question.

192    Having reached this conclusion, the next matter to be considered is whether any of the emails fell within any of the exceptions stated in clauses (a) to (c) of the undertaking. As with the body of the undertaking, I consider the ordinary meaning of the words of those exceptions is clear and unambiguous. By their terms, they define communications made for two very specific purposes: to obtain legal advice; and to serve a document filed in the Court on a party to either proceeding, or to otherwise serve a document, including originating service of a document. Outside of those specific purposes, it is clear that those exceptions did not permit communications of any kind. In other words, the exception to serve a document in either proceeding could not be used as an opportunity to engage in communications unrelated to that purpose. That includes gratuitous attacks on Infa-Secure, or threats to pursue retailers for damages, whether those retailers were parties to the proceedings or not.

193    As it happened, the latter is what Ms Crocker did on each of the four occasions when she genuinely served a document filed in the Court within the terms of the exceptions stated in clause (b) of the undertaking. So much is clear from the emails she sent in relation to Charges 3 (see at [55] above), 4 (see at [57] above), 5 (see at [60] above) and 16 (see at [103]–[105] above). Further, none of the emails associated with any of the other charges involved a genuine attempt to serve a document filed in the Court within the terms of that exception. On some occasions, Ms Crocker clearly made a vain attempt to cloak the communication with a service-related purpose. That occurred with the following emails:

(a)    those related to Charges 1 and 2, where she mentioned the service of documents, but did not actually serve any documents;

(b)    those related to Charges 8 to 10 (inclusive), where she “served” emails she had filed in the Court in a misguided attempt to bring herself within the terms of the exception. This failed because the exception clearly only applied to a document that had to be filed in the Court in accordance with the Rules, not to an email that was “filed” for the ulterior purpose of bringing herself within the exception in clause (b); and

(c)    that related to Charge 15, where she served a draft statement of claim rather than “a document filed in the Court”.

194    In the remainder of her emails, Ms Crocker did not appear to bother cloaking them with a service-related pretext. That is the case with the emails related to Charges 6 (see at [69] above), 7 (see at [74] above), 12 (see at [88] above), 13 (see at [93] above), 14 (see at [96] above), 17 (see at [110] above), 18 (see at [117] above), 19 (see at [121] above), 20 (see at [125] above), 21 (see at [131] above), 22 (see at [135] above), 23 (see at [138] above), 24 (see at [144] above), 26 (see at [150] above), 27 (see at [153] above) and 28 (see at [158] above).

195    As to the exception stated in clause (a) of the undertaking, none of the emails associated with any of the charges involved a communication with a person for the purpose of seeking legal advice within the terms of that exception.

196    So, in conclusion on this aspect, I do not consider any of the emails associated with any of the charges fell within any of the exceptions stated in clauses (a) to (c) (inclusive) of the undertaking.

197    Finally, it is necessary to consider whether, despite Ms Crocker not having specifically raised this matter, it could be said that any of her conduct did not involve a deliberate act or, conversely, was “casual, accidental or unintentional”. In this respect, I bear in mind that, on the one hand, Infa-Secure does not need to prove “specific” intent on Ms Crocker’s part and, on the other hand, this question does not allow for Ms Crocker to rely upon a misconstruction of the terms of her undertaking to escape responsibility for any breaches of it (see the discussion at [129]–[130] in Salvato at [162] above). For the following reasons, I do not consider any of Ms Crocker’s conduct can be characterised as “casual, accidental or unintentional”. First, there are her spurious attempts to justify her conduct by claiming that the undertaking did not extend to the parties to the proceedings and various other persons (see at [169] above). In this regard, I consider Ms Crocker’s exchanges with Dowsett J on 12 January 2015 are particularly telling (see at [39]–[41] above). In those exchanges, his Honour was at pains to ensure that Ms Crocker understood the seriousness of giving an undertaking to the Court and the dire consequences that may follow if she breached that undertaking. Furthermore, they clearly show that Ms Crocker did, indeed, understand what she could and could not do within the terms of the undertaking.

198    Secondly, there is the extravagance of the language Ms Crocker used in most of the emails that found the 27 charges against her. This manifests a deliberate attempt to harm Infa-Secure and to threaten those retailers who dealt with Infa-Secure in connection with the SECURAP product.

199    Thirdly, it is significant that Ms Crocker ignored the warnings she received from Chrysiliou Lawyers about her breaches of the undertaking throughout the period in question (see at [35] above).

200    Fourthly, I do not consider any reasonable person could have genuinely interpreted the comments I made to Ms Crocker on 5 February 2015 in the way she did in the email related to Charge 13 (see at [90]–[91] above). Similarly, I do not consider any reasonable person could have genuinely interpreted those comments in the way she did in the email related to Charge 15 (see the emphasised text at [98] above).

201    Fifthly, there are the statements in some of the emails where Ms Crocker indicates that she is aware that her conduct is probably in breach of her undertaking: see the email relating to Charge 18 (at [116] above), the email relating to Charge 19 (at [120] above) and the email relating to Charge 21 (at [127] and [129] above).

Conclusion

202    For these reasons, I am satisfied beyond reasonable doubt that Ms Crocker has breached the undertaking she gave to this Court on 12 January 2015 by sending the emails referred to in each of the 27 charges made against her.

203    I will now hear from the parties on the terms of the orders I should make and the appropriate penalty to be applied to Ms Crocker in the circumstances.

Associate:

Dated:    13 August 2015