FEDERAL COURT OF AUSTRALIA

Director of Consumer Affairs Victoria v Gibson (No 4) [2018] FCA 1868

ORDERS

THE COURT ORDERS THAT:

1.    On a date as soon as reasonably practicable after 11 December 2018, and subject to any consideration by the Court of any further submissions made by the parties, the orders of the Court made in this proceeding on 28 September 2017 be varied so as to carry an endorsement of a penal notice in the form of Annexure A to these orders.

2.    The applicant is to serve a copy of the orders as varied, on the first respondent personally.

3.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANNEXURE A

PENAL NOTICE

NOTICE UNDER RULE 41.06 OF THE FEDERAL COURT RULES 2011 (Cth)

(This penal notice was added to these orders by order of Mortimer J made on [insert])

TO: ANNABELLE NATALIE GIBSON

IF YOU (BEING THE PERSON BOUND BY THIS ORDER) FROM THE DATE THIS ORDER IS STAMPED:

(A)    REFUSE OR NEGLECT TO PAY THE PECUNIARY PENALITIES IN PARAGRAPH 1 OF THIS ORDER WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THAT ACT; OR

(B)    DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO;

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

ORDER

JUDGE:            JUSTICE MORTIMER

DATE OF ORDER:        28 September 2017

WHERE MADE:        Melbourne

THE COURT ORDERS THAT:

1.    The first respondent pay to the State of Victoria pecuniary penalties in respect of each of the five contraventions of s 21 of the Australian Consumer Law (Vic) found by the Court, in the following amounts:

(a)    for the first contravention concerning the app sales donation claims, a penalty of $90,000;

(b)    for the second contravention concerning the company earnings donation claims, a penalty of $90,000;

(c)    for the third contravention concerning the app launch donations claim, a penalty of $50,000;

(d)    for the fourth contravention concerning the Schwarz family app donations claim, a penalty of $150,000; and

(e)    for the fifth contravention concerning the Mother’s Day event donations claim, a penalty of $30,000,

in the total sum of $410,000.

2.    The first respondent be granted leave to apply to the Court, on or before 4 pm on 5 October 2017, for orders that she pay the penalties imposed by paragraph 1 of these orders by way of instalments.

3.    Any such application filed pursuant to paragraph 2 of these Orders be supported by affidavit setting out a proposed repayment schedule, the reasons why an order for instalments should be made, and the first respondent’s financial circumstances.

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicant, the Director of Consumer Affairs Victoria, which I will describe as the Director in these reasons, has applied for orders which seek to have an endorsement placed on orders against the first respondent, Ms Gibson. Those orders were made by the Court on 28 September 2017. The Director read an affidavit of Luisa Francesca Alampi, sworn on 25 May 2018, in support of the application.

2    For the reasons set out below, the application will be granted.

Background

3    The Director brought proceedings under both the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) and the Australian Consumer Law (Victoria) (the Australian Consumer Law as it applies in Victoria pursuant to s 8 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) against Ms Gibson in May 2016, having conducted an investigation from at least December 2015 into her conduct relating to the promotion and publication of a phone application (published by both Apple and by Google) and book, each of which was called “The Whole Pantry”. The history and nature of those proceedings can be found in the Court’s reasons for judgment in Director of Consumer Affairs Victoria v Gibson [2017] FCA 240 (the liability reasons) and Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148 (the penalties reasons).

4    As a consequence of the liability reasons, on 7 April 2017, the Court made declarations of contraventions by Ms Gibson, and by her company, of the ACL and the ACL (Vic). Ms Gibson’s company was the second respondent to the proceedings, but was in liquidation and the Director was granted leave by a Registrar of this Court under s 500(2) of the Corporations Act 2001 (Cth) to proceed against the company, on the condition that the Director would not seek to enforce any judgment against or recover any money from the company without leave of the Court. No such application for leave has been made.

5    Ms Gibson was also ordered to make a contribution to the Director’s legal costs, in the sum of $30,000.

6    The 7 April 2017 order was endorsed with a penal notice pursuant to r 41.06 of the Federal Court Rules 2011 (Cth).

7    On 28 September 2017, and after an oral hearing, the Court made orders requiring Ms Gibson to pay to the State of Victoria pecuniary penalties totalling $410,000 in respect of the five contraventions of s 21 of the ACL (Vic) found by the Court: namely, in respect of what the Court had found to be unconscionable conduct on the part of Ms Gibson. The orders were entered that day, by being signed and stamped.

8    The 28 September 2017 orders were not endorsed with a penal notice pursuant to r 41.06 of the Rules, and no request was made by the Director for any such endorsement.

9    Whether or not an endorsement is applied to an order is generally a matter for the party with the benefit of the order. The Court’s Enforcement, Endorsement and Contempt Practice Note (GPN-ENF, 25 October 2016) at paragraph 4.3 states:

The party with the benefit of the order should approach the Judge at the time of the making of the order to request the endorsement. The form of the endorsement will be a matter for the Court to determine.

10    Ms Gibson did not participate in either the trial as to her and her company’s liability, nor in the trial as to penalty, although she corresponded directly with the Court on several occasions.

11    The evidence of Ms Alampi reveals the following course of events after the 28 September 2017 orders were made. I should make it clear that Ms Alampi deposed, and I accept, that she did not have principal carriage of this proceeding at the time of the 28 September 2017 orders, and that the solicitor responsible for the carriage of the proceeding left the employ of the Director shortly before the 28 September 2017 orders were made.

12    It would appear from the evidence, and I infer, that at least at the time the 28 September 2017 orders were made, the failure to seek the endorsement of a penal notice on the orders was an oversight by those in the Director’s employment responsible for the carriage of this proceeding. An oversight is a very human occurrence, and everyone (including judges) may be found to have made them.

13    However, the sequence of events which then occurred cannot be attributed entirely to oversight.

14    On 10 October 2017, Ms Alampi contacted my chambers and spoke to my Associate. My Associate subsequently emailed Ms Alampi a summary of that conversation (copied to Ms Gibson and her company), which Ms Alampi exhibited to her affidavit and which, I infer and find, Ms Alampi accepted was an accurate summary. In that conversation, Ms Alampi raised with my Associate several queries about the 28 September 2017 orders which are not relevant to the present application. The summary of that part of the conversation relevant to the present application is as follows:

Ms Alampi asked whether the Orders were required to be endorsed under rule 41.06, as per the Orders dated 7 April 2017. I advised that as the Court did not receive any submissions on any deadlines nor on the requirement for endorsement, the Orders made on 28 September 2017 were not endorsed. I advised that should the Director consider it necessary, he may file an interlocutory application for endorsement of the Orders, supported by any submissions.

15    Ms Alampi then deposes that:

At that time, based on what I understood of the matter, the Applicant did not pursue an endorsement of the September Order.

16    Indeed, the Director’s desire not to pursue having the order endorsed was confirmed to Ms Gibson and her company, and to the Court, in an email the next day, 11 October 2017, which was also exhibited to Ms Alampi’s affidavit. That email relevantly states:

The Director:

1.    does not propose to make an application to vary the 14 days for compliance with the pecuniary penalty payment;

2.     will attend to personal service of the sealed orders under cover of your email below, and the orders and reasons for judgment dated 28 September 2017 (per r 39.02 of the Federal Court Rules);

3.    does not propose to apply for an order under r 41.06 of the Federal Court Rules.

(emphasis added)

17    Ms Alampi deposes that shortly after this email, on or about 13 October 2017, Ms Gibson was personally served with the 28 September 2017 order, the Court’s reasons and a letter dated 10 October 2017, drawing her attention to the requirement that she pay the penalty amount of $410,000 within 14 days after the date of service.

18    I note here that the Court’s orders had provided for Ms Gibson to apply to pay the penalties by instalments. No application for payment by instalments has been made by Ms Gibson, whether inside the 14 day period given for payment, or outside it. Nor was any application made by her to vary the period in which payment of penalties was due.

19    Ms Alampi then deposes to correspondence on more than one occasion between herself and Ms Gibson in November 2017, drawing her attention to the fact she had not complied with the Court’s orders. Ms Alampi further deposed that:

…the State of Victoria intends to commence enforcement proceedings against her under r 40.10 of the [Federal Court] Rules.

20    I note here that this evidence was given on 25 May 2018, some six months after the last round of correspondence with Ms Gibson and some seven months after the time for compliance with the 28 September 2017 order.

21    At the time of the hearing in mid-July 2018, there was no evidence that the Director had commenced enforcement proceedings against Ms Gibson and indeed Counsel for the Director confirmed that he had not.

22    Ms Alampi then deposed (at [22] of her affidavit):

Further, on the basis of:

(a)    Ms Gibson’s refusal or failure to attend the compulsory examination of her, or to otherwise provide answers to the Applicant’s questions under oath or affirmation;

 (b)    Both respondents’ refusal or failure to engage in this proceeding in any way;

 (c)    Ms Gibson’s adverse credibility,

the Applicant is now concerned that Ms Gibson may have wilfully disobeyed – or may in future wilfully disobey – the September Order for payment by her of penalties totalling $410,000 to the State of Victoria.

23    I note none of the matters to which Ms Alampi refers at [22] occurred after the Court handed down its judgment and orders on penalty. It is difficult to see how that “concern” could have arisen at or about the time of this interlocutory application, and not earlier. In particular, it is difficult to understand why the Director would not have had the same “concern” at the time he informed the Court, and Ms Gibson, in mid-October 2017 that he did not seek the endorsement of a penal notice on the 28 September 2017 order, or at the time of the penalty judgment.

24    Finally, Ms Alampi deposed (at [25]) that:

If this honourable Court grants the application and endorses the September Order in the manner sought, the Applicant intends to re-serve the endorsed September Order on Ms Gibson so that the Court may be satisfied that she has been alerted to the quasi penal consequences of:

(a)    Wilfully disobeying the orders that she pay the pecuniary penalties set out in the September Order; and / or

(b)    Engaging in conduct calculated to defeat the effect of the September Order as to the payment of pecuniary penalties.

25    Although Ms Alampi refers to the “endorsed September Order” as if it is one and the same as the 28 September 2017 orders, counsel for the Director accepted during oral argument that, in fact, the process which would have to be undertaken if the Director’s application succeeded was for the Court to issue a new version of the 28 September 2017 orders, and for a penal notice to be endorsed on it, thus replacing – in fact – the 28 September 2017 orders as made, and as stamped and therefore as entered: see r 39.31 of the Federal Court Rules, and Division 39.4 generally.

26    At one point during the hearing, counsel for the Director handed up a letter from Ms Gibson to the Director dated 17 November 2017. It was handed up with the consent of Ms Gibson’s counsel, but when I enquired whether the Director sought to tender the letter, counsel replied in the negative, so the letter was returned to the Director’s counsel. Ms Gibson’s counsel did not seek to tender the letter. I have had no regard to the letter in reaching my conclusions.

Ms Gibson’s late participation in the interlocutory application

27    After the Director’s interlocutory application was filed, the Court gave directions as to the filing of evidence and submissions. Those directions were sent to Ms Gibson. There was no suggestion at the hearing that she did not receive those directions.

28    By 4 July 2018, the date for the filing of submissions and evidence, nothing had been filed on behalf of Ms Gibson. The hearing of the interlocutory application was listed for 10 July 2018. The day before the hearing, at 4.02 pm in the afternoon, written submissions were filed on behalf of Ms Gibson. Counsel appeared on her behalf at the hearing the next day, to oppose the orders sought by the Director.

29    In responding to questions from the Court about why there was non-compliance with the directions about submissions, Counsel explained he had no instructions to explain why there was non-compliance by Ms Gibson with the Court’s order regarding the 4 July 2018 deadline, and he had no instructions to apologise to the Court for the late filing and late notice of Ms Gibson’s participation. He informed the Court he had been briefed on Friday, 6 July 2018 while on holiday but returned to work only on 9 July 2018.

30    It can be accepted the lateness of the submissions could not be attributed to counsel. To the contrary, the written submissions were obviously prepared with commendable speed and the Court was assisted by them. However, the chronology reveals, yet again, the cavalier attitude adopted by Ms Gibson to these proceedings, and to her obligations as a party to them. Ms Gibson appears to have little respect for any official processes. However, it would appear to have dawned on Ms Gibson, eventually, that endorsement of the 28 September 2017 orders could have real consequences for her, if she continued with her non-compliance with those orders. And so, I infer, she decided it was to her advantage to participate in this aspect of the proceedings. As it turned out, the submissions made on her behalf were not without force, albeit that I have ultimately concluded, on the basis of existing authorities, that the Director’s application should be granted.

The parties’ contentions in summary

31    As I have noted, both the Director and Ms Gibson filed written submissions, and also made oral submissions at the hearing. I have considered all the submissions made and refer to them below where appropriate. What follows is a short summary.

32    The Director submitted there were three main issues or points he sought to make:

(a)    The rationale for the application was to make the Court’s contempt processes “available” to the Director, so as to punish Ms Gibson for her disobedience of the Court’s 28 September 2017 orders, if that disobedience is established (in the future) to have been wilful.

(b)    The appropriate form of the penal notice. Ultimately this was resolved by a proposed amended form of penal notice on which the Director’s counsel confirmed the Director wished to move. See [34]-[36] below.

(c)    The Director confirmed the basis for the application was r 39.05(f) of the Federal Court Rules. The Director submitted he did not rely on para (h), because on the evidence he could not prove that the 28 September 2017 orders had no endorsement because of an accidental slip or omission. The Director accepted that the time for payment of the penalties expired a considerable time ago, but contended the point of the application was to “forewarn” Ms Gibson of the consequences of “wilful” disobedience from this point on. Accordingly, although the Director appeared to accept time for payment would not start again, even if a “new” order was issued, he initially submitted that he may be able to prosecute Ms Gibson for contempt for her conduct in the past, and did not wish to abandon the possibility of doing so. However, ultimately, the Director moved on a proposed form of penal notice which contained a warning that was to some extent prospective in nature.

33    Ms Gibson did not submit the Director’s interlocutory application was incompetent, but rather submitted that what is sought is not a variation to an existing order and so is not within r 39.05. Therefore, the Director must, Ms Gibson submitted, rely on the terms of r 1.32. She submitted the order sought was not an “appropriate” or “just” one, and there was no basis for such an order to now be made. Ms Gibson further contended that, in any event, no variation was available under r 39.05(f) in the circumstances because this was not a case of rectifying the “unintended operation” of orders and neither were the circumstances “exceptional”. Ms Gibson’s submissions emphasised the delay in bringing the application, the conscious election of the Director in October 2017 not to seek to have the 28 September 2017 orders endorsed with a penal notice, the availability of the usual enforcement processes to the Director, the delay in the Director using those processes and, it was contended, a lack of evidence that there had to date been any wilful disobedience of the orders.

The proposed form of penal notice

34    A form of proposed penal notice was attached to the written submissions filed on behalf of the Director. The proposed form was:

PROPOSED FORM OF ENSORSEMENT

PENAL NOTICE

NOTICE PURSUANT TO RULE 41.06 OF THE FEDERAL COURT RULES 2011

TO: Annabelle Natalie Gibson

IF YOU:

(a)    WILFULLY REFUSE OR NEGLECT TO PAY THE PECUNIARY PENALTIES REQUIRED TO BE PAID BY THIS ORDER WITHIN 14 DAYS AFTER THE DATE OF THE SERVICE OF THE ORDER ON YOU; or

(b)    ENGAGE IN CONDUCT WHICH IS CALCULATED TO DEFEAT THE EFFECT OF THE ORDER THAT YOU PAY THE PECUNIARY PENALTIES,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT FOR CONTEMPT OF COURT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

35    During argument, the Court asked some questions about the form of the proposed notice.

36    In reply, and on the basis of a statement from the Court that it would not be drafting the notice for the Director and the Director needed to be precise about the form of the notice he sought to be endorsed onto the 28 September 2017 orders, the Director sought to further adjust the form of the notice attached to the submissions to add:

If you, from the date of service of this penal notice upon you:

(a)    wilfully refuse or neglect to pay the pecuniary penalties required to be paid by this order; or

(b)    engage in conduct which is calculated to defeat the effect of the order that you pay the pecuniary penalties…

Resolution

37    Rule 39.05 of the Federal Court Rules provides:

39.05 Varying or setting aside judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

38    Rule 1.32 provides:

1.32 Court may make any order it considers appropriate in the interests of justice

The Court may make any order that the Court considers appropriate in the interests of justice.

Note:    See sections 23 and 28 of the Act.

The purpose of an endorsement of a penal notice on an order

39    Although the Director did not address this issue, it is necessary to the disposition of the application to understand the purpose of the endorsement of a notice to the party who is subject to an order about the consequences of wilful disobedience to the order.

40    Rule 41.06 provides:

41.06 Endorsement on order

If an order requires a person to do, or not to do, an act or thing, whether within a certain time or not, and the consequences of failing to comply with the order may be committal, sequestration or punishment for contempt, the order must carry an endorsement that the person to be served with the order will be liable to imprisonment, sequestration of property or punishment for contempt if:

(a)    for an order that requires the person to do an act or thing—the person neglects or refuses to do the act or thing within the time specified in the order; or

(b)    for an order that requires the person not to do an act or thing—the person disobeys the order.

41    In contrast to earlier versions of this rule, the requirement for an endorsement extends to any prosecution for contempt, irrespective of the nature of the punishment sought. In relation to the previous version in the Rules, and the fact that punishment by imposition of a fine remained available without an endorsed order, see Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118; 152 FCR 129 at [67] (North, Goldberg and Weinberg JJ).

42    The purpose of an endorsement was described by Greenwood J in Mason v MWREDC Limited [2012] FCA 1083 at [33]-[49]. At [33] his Honour said:

…personal service of the physical authenticated order or a true copy of the authenticated order endorsed under rule 41.06 tells the person bound by the order, in a way that enables the person to reflect upon the content of the order, first, the terms of the Court’s order containing the obligation to do something and, second, one of three possible consequences (committal, that is committal to prison; sequestration of property or punishment for contempt) should the person neglect or refuse to do the relevant thing within the time specified in the order.

43    At [49] his Honour further observes that providing an individual with the “benefit” of having her or his mind focused on the consequences of neglect or failure to comply with an order may later serve a purpose as a “material matter” to be taken into account in the exercise of the Court’s discretion in any application for punishment of a contended contempt. I respectfully agree with his Honour’s description of the purpose of an endorsement.

44    There are some differences in the authorities about whether compliance with the terms of r 41.06 is a necessary precondition to a contempt prosecution, or whether compliance can be waived at the direction of the Court. I deal with this below under “Other authorities”.

What is involved in the Director’s application

45    Contrary to the approach at least initially taken by the Director in his submissions, in practical terms it is not possible to endorse the existing orders of 28 September 2017 with a penal notice. Ultimately the Director’s submissions appeared to accept that what needed to occur was for a new version of the 28 September 2017 orders to be issued.

46    The 28 September 2017 orders have been entered. Entry is required before an order can be enforced: r 39.31(1)(b). Entry of orders is generally done in accordance with r 39.35(1), which provides:

(1)    An order is authenticated by:

(a)    the Court, or a Registrar signing the order; and

(b)    the Court, a person at the direction of the Court, or a Registrar, affixing the seal of the Court or the stamp of a District Registrar to the order.

47    It can be seen that two physical acts need to be performed: the signing of an order, and the affixing of a seal or stamp. Both those physical acts are intended to authenticate the order: that is, to pronounce to the world, and especially to those bound by the order, that the document which is signed and sealed or stamped, is a true and correct record of the exercise of judicial power by the Court: see also s 36 of the Federal Court of Australia Act 1976 (Cth). To contemplate that in any way an order which has been entered can be altered, without the making (and entry) of a new version of the order, would be to undermine the purpose of the Rules.

48    The finality and importance of entered orders has been considered in several authorities: see Mason v MWREDC at [33]; Eastman v R [2008] FCAFC 62; 166 FCR 579 at [17] and see also what is set out at [18]-[21] of the High Court’s decision in Burrell v R [2008] HCA 34; 238 CLR 218 (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ) recently affirmed by French CJ, Kiefel and Bell JJ in NH v Director of Public Prosecutions (SA) [2016] HCA 33; 260 CLR 546 at [71].

49    The Federal Court now operates through an electronic court file, and the process for entering orders has been modified to accommodate that, in the sense that the process is generally carried out electronically. Orders are typed into an electronic document, settled, dated and saved onto the Court’s electronic filing system. The individual entering the order on behalf of the Court then authenticates the orders by pressing a button to “stamp” the orders electronically: a process by which the Registrar’s electronic signature and the Court seal is affixed to the orders, the orders are recorded on the Court’s electronic file and are also in most cases populated onto the external website (ie the Commonwealth Courts Portal). The introduction of these processes for the electronic production and authentication of orders is reflected in amendments to the Federal Court Rules that were introduced in 2013 at the same time as the Court’s electronic court file system, including by the introduction of the word “seal” to provisions of the rules describing authentication, which had previously used only the word “stamp”.

50    However, even if the Court were operating on a paper file, the position would remain the same. The 28 September 2017 orders having been entered, I fail to see how the actual document can be modified by the endorsement of a penal notice, so modifying not only its form but its substance, even if the actual record of judicial power as exercised does not change.

51    The Enforcement Practice Note is consistent with the approach I have set out. Paragraph 4.4 states:

It is also important that, before a party seeks to enter and serve an order that is required to carry an endorsement, the endorsement is inserted in the order before it is entered and served (see paragraph 3.3 of this practice note). Such an order must also be served in accordance with r 41.07 of the Federal Court Rules.

52    A complexity in the present circumstances arises because of the terms of r 41.07, which provides:

41.07 Service of order

(1)    An order made under rule 41.06 must be served personally on the person who is bound to do, or not to do, the act or thing:

(a)    within the time mentioned in the order; or

(b)    if no time is mentioned—within a time that would allow the person to comply with the order.

 (2)    However, if the person:

(a)    was present when the judgment was pronounced or the order was made; or

(b)    was notified of the terms of the order orally, by telephone or electronically;

the person is taken to have been served with the order at the time the person heard or was notified of the order.

53    In other words, the Rules operate, unsurprisingly, on the premise that an endorsed order will be served at a time that will, reasonably, enable compliance by the party to whom the order is directed.

54    Of course, that cannot occur if the 28 September 2017 orders are varied, and re-issued, with a penal notice endorsed on them. The time for compliance with the 28 September 2017 orders ended 14 days after the orders were personally served by the Director on Ms Gibson (that is, around 27 October 2017). The re-issued orders cannot specify a time for compliance in the future because the time for compliance has passed. The Director did not seek any variation to the time for compliance and it is difficult to see how he could have. The Court’s orders were made, and penalties imposed, with a time period for compliance prescribed by the Rules: that was the applicable exercise of judicial power and is now historic fact.

55    Service on Ms Gibson of the varied and re-issued orders will give her proper notice of the penal notice itself, and its contents. That is all. Service cannot give her an opportunity to comply with the Court’s orders: she has allowed that opportunity to expire without compliance, and without any other application to secure or facilitate compliance (such as an application for instalment payments).

56    That is why, in my opinion, it is important that the penal notice be expressed in prospective terms as far as that is possible consistently with the Court’s Rules. Rule 41.06 requires a penal notice to warn a party about the consequences of non-compliance, within the time specified in the order. Thus, the notice must in my opinion contain a reference to the expired time for compliance. This is one of the troubling complexities of adding a penal notice after an order is entered and time for compliance has expired. Nevertheless, as I explain below, there are several instances where such orders have been made. At present, I am not persuaded these authorities, and the approach taken in them are plainly wrong. Therefore, I consider I should adopt a similar approach on this application.

57    If, at some future time (and I emphasise this is entirely hypothetical), an application for punishment for contempt is brought by the Director against Ms Gibson in respect of the 28 September 2017 orders, it will be a matter for the judge dealing with that application whether Ms Gibson can be charged, or if able to be charged then found guilty, of contempt for conduct occurring before the variation and re-issue of the 28 September 2017 orders. As the authorities to which I refer below make clear, those matters will be highly fact dependent and turn very much on the conduct of the non-complying party, and that party’s state of knowledge about the orders. It will also be a matter for that judge whether the terms of the penal notice contain some disqualifying imperfection affecting any contempt process.

Is Rule 39.05 available?

58    The Director relies primarily on r 39.05(f) as the source of power to make the orders sought. Rule 39.05 deals with what can be done to orders after they are entered.

59    Ms Alampi deposed to the consent of the State of Victoria to the interlocutory orders sought, it being the entity in whose favour the 28 September 2017 orders were made, since the penalties were payable by Ms Gibson to the State of Victoria.

60    Rule 39.05 is premised, as its text demonstrates, on empowering the Court to do one of two acts: to set aside an order made, or to “vary” such an order.

61    The Director does not apply for the 28 September 2017 orders to be set aside, in the sense of vacated entirely. Rather, he applies for them to be varied, by the addition of an endorsement of a penal notice.

62    At the hearing of the application I expressed some doubt about whether what the Court was being asked to do fell within the terms of r 39.05, on the basis that there was no alteration to the actual terms of the 28 September 2017 orders. Indeed, this was the submission made on behalf of Ms Gibson: she submitted the power in r 39.05 was not available because to endorse an order with a penal notice is not a “variation” to the order.

63    On reflection, and in particular in light of the considerable body of authority to which I refer below, I have concluded that to see this application as outside r 39.05 would be an unduly technical approach. More than that, I am satisfied that the word “order” in r 39.05 means the whole of the document which constitutes the Court’s record of the orders made by the Court, and so the power to “vary” includes a power to vary any part of the document constituting the order of the Court, including but not limited to the text which constitutes the exercise of judicial power.

64    In the Dictionary to the Rules, “order” is given the following definition:

order includes a final order, an interlocutory order, a direction and a sentence of the Court

65    In the Federal Court Act, “order” is not separately defined, but is included within the definition of “judgment”.

66    There are purposive and practical reasons to construe “order” in r 39.05 as meaning the entire document. The main purposive reason is to ensure that the Rules facilitate the accuracy of the records of the Court. If, to take a simple example, an order recorded the wrong judge as making the order, that should be susceptible to correction under r 39.05 notwithstanding that no correction was sought to the substance of the orders made by the Court. The same could be said if the incorrect date was entered on the document constituting the order. A date may be a critical matter, but it is not itself the exercise of judicial power which constitutes the “order”: rather, the document which is the order records (and must record accurately) the date on which the exercise of judicial power occurred.

67    Accordingly I am satisfied that the Court has power to vary the 28 September 2017 orders by endorsing a penal notice onto the document constituting the orders. What then matters more, as I discuss below, is the precise form of the penal notice.

68    If r 39.05(f) is applicable, which I find it is, a number of considerations, which have been held to inform the exercise of the Court’s discretion, may be seen as tending against an exercise of the discretion in that rule. In Australian Competition and Consumer Commission v True Alliance Trading Pty Ltd (formerly, Reebok Australia Pty Ltd) (No 2) [2017] FCA 990 at [12], McKerracher J set out some of the considerations informing the exercise of this discretion, which I would respectfully agree with, and adopt:

In determining to exercise a discretion under r 39.05(f), relevant considerations include:

(a)    the scope of the power to vary or set aside an order or judgment after entry is more circumscribed than that provided for in relation to the pre-entry situation. It should be exercised with caution and in exceptional circumstances, mindful of the overarching principle of the finality of litigation: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 (at [6]);

(b)    the discretion to vary an order under r 39.05 FCR is not confined, but must be exercised judicially and the Court must have regard to all the evidence and arguments before it at the time of the application: Campaign Master (UK) Limited v Forty Two International Pty Ltd (No 4) [2010] FCA 398 (at [68]);

(c)    the power conferred under r 39.05 FCR must be exercised in a way that best promotes the overarching purpose identified in s 37M of the Federal Court of Australia Act 1976 (Cth), of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible; and

(d)    the Court must also consider the rights and interests of third parties. Orders may be varied or set aside where the party in whose favour the order was made consents, provided that doing so will not detrimentally affect the rights or interests of third parties: Australian Securities and Investments Commission v Yandal Gold [2003] FCA 77 (at [23]); Perre v Apand [2004] FCA 1220 (at [10]-[11]).

69    The Director’s application tends against the overarching principle of finality in litigation. In De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; 190 CLR 207, a case concerning the proposed vacation of a costs order, the plurality, having noted the existence of the Court’s power to re-open final orders, said (at 215):

By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case.

(citations omitted)

70    This passage emphasises the importance of finality, but sets it against the need to ensure, so far as possible, that a previous exercise of judicial power does not work an injustice, especially an unintended or inadvertent injustice. Of course the passage does so mindful of the High Court’s place as the ultimate appellate court in Australia, a factor not relevant to the present application. There is no obvious injustice in leaving the 28 September 2017 orders without the endorsement of a penal notice. There is no evidence before the Court that Ms Gibson has wilfully disobeyed the 28 September 2017 orders, so that it might be said she has taken some conscious advantage of the absence of a penal notice endorsement. All that can be said is that she has failed to comply with the order, and in resisting the application she seeks to preserve the status quo, which is that she may be less readily exposed to the risk of contempt proceedings. Since no enforcement steps have been taken by the Director, there is no evidence she has failed to cooperate in any such enforcement steps. The principle of finality is also compromised in the sense that the Director had the opportunity to seek an endorsement at an earlier stage, and first omitted and then deliberately elected not to do so.

71    Thus, the principle of finality tends to support refusing the Director’s application.

72    It is questionable whether exercising the power in r 39.05(f) so as to apply an endorsement advances the overarching objective in s 37M of the Federal Court Act, because it has the effect of requiring steps to be taken again in the proceeding (such as serving Ms Gibson), in circumstances where the Director has not acted with appropriate efficiency to take any steps towards enforcing the 28 September 2017 orders in accordance with the Court’s processes. The Director could have been well advanced with the usual enforcement processes, but instead appears to have prevaricated about this issue of an endorsement.

73    Balanced against this however is that varying and re-issuing the 28 September 2017 orders tends to bring more clarity to the potential consequences of non-compliance with the 28 September 2017 orders, at least from the time of service of the re-issued and varied orders onwards. It may at least in part avoid further argument on the matters to which I refer below under “Other authorities”.

74    It is possible to identify a detrimental effect on Ms Gibson if the power were to be exercised, but it is a minor factor. The detrimental effect is that Ms Gibson may be exposed more readily to prosecution for contempt if she continues to fail to comply with the 28 September 2017 orders and there is evidence her non-compliance is wilful or contumacious, whereas at the moment the conflict in authorities in this Court means that she may have more prospect of resisting any such application if there is no endorsement. I say “may”, because there are authorities which tend each way. Ms Gibson currently enjoys a possible benefit flowing from the Director’s failure to seek endorsement at the appropriate time. Given her conduct in the contraventions as the Court found, that is no small irony.

75    If Ms Gibson has a current benefit, it is one that has come about because of inadvertence and there is no justice in the Court preserving it for her. As Jagot J said in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2015] FCA 1275; 238 FCR 209 at [18]:

It is not the case that a party can avoid having to comply with a court order and thereby can avoid the potential of being found in contempt of court merely by engaging in wilful blindness to the terms of the court order.

76    I note that in terms of whether the proposed order is just and appropriate (also relevant to the alternative source of power in r 1.32), the Director accepted that Ms Gibson may be able to argue at a future date that she was entitled to the warning contained in the endorsement, and that she should not be exposed retrospectively to the risk of punishment for contempt for conduct in which she has already engaged. The Director also accepted that a question for any later court would be whether the Court had the power to punish Ms Gibson for the conduct occurring before any endorsed orders were made, given the terms of r 41.06.

77    When pressed, counsel for the Director proposed a modification to the terms of the penal notice to at least partially address these issues. The modification was to express part of the notice prospectively. Ultimately this was the version of the orders on which the Director moved towards the conclusion of the oral hearing. I accept that a prospective version of the orders is appropriate in the circumstances, to recognise that the time for compliance with the orders has passed. What can and should be made of all these factors in the context of any prosecution for contempt (if one ever eventuates) will be a matter for the Court at the time.

78    I accept, as McKerracher J said in True Alliance, that the power in r 39.05 should be exercised with caution. On this particular application, I have reflected carefully on what I consider to be the appropriate order, and the one that is in the interests of justice. I do not consider Ms Gibson’s current advantage, if it might be called that, should be determinative. It is the product of happenstance. The disruption of finality caused by the application has concerned me, especially given the delay is entirely, on the evidence, of the Director’s own making.

79    I consider what is more important is that the nature of the Court’s 28 September 2017 orders was extremely serious. Significant penalties were imposed on Ms Gibson for conduct the Court found to be unconscionable. It is in the interests of the administration of justice that those orders should be capable of enforcement through contempt proceedings if the circumstances which would justify such an application arise. Whether or not any such proceeding succeeds will be a matter for the Court at the time but, having been apprised of the deficiency in the existing form of the orders and the Director’s position, the Court should not lightly refuse to exercise a power to make those orders as effective as possible. Exercises of judicial power are intended to be effective: that is one of the foundations of the rule of law.

80    I note that for the purposes of r 39.05(f), it is the consent of the Director that the Court should treat as the operative consent: see Australian Securities & Investments Commission v Yandal Gold [2003] FCA 77 at [21] (Merkel J). However, the evidence is that the State of Victoria, the entity to whom the penalties are payable, also consents to the orders sought, although it is not a party.

Rule 1.32 as an alternative source of power

81    If I had not been satisfied that r 39.05(f) was an available source of power, and should be exercised, I would in any event have been persuaded that r 1.32 could have been relied upon. For the reasons I have already set out, I consider it is just and appropriate that a penal notice be endorsed onto the 28 September 2017 orders. While at the moment there is evidence of breach of those orders, but no evidence of wilful or contumacious disobedience to them by Ms Gibson, it is desirable that, going forward, there should be as little doubt as possible that proceedings for contempt could be brought, prosecuted and (if the evidence justifies it and the Court so finds) proven. To have those processes available where significant penalties for unconscionable conduct have been imposed facilitates respect for the Court’s processes and aids their effective enforcement. There is no justifiable reason why Ms Gibson should continue to enjoy a potential forensic advantage caused by what appears to have been a genuine mistake on the part of the Director’s lawyers, compounded by some undesirable prevarication about how that mistake should be addressed.

Other authorities

82    Although neither the Director nor Ms Gibson referred the Court to these cases, there are authorities dealing with an exercise of power of the kind now sought.

83    In Titan Support Systems Inc v Nguyen (No 2) [2015] FCA 359, Murphy J made orders varying the orders of Perry J “by adding the endorsement required pursuant to r 41.06 of the Federal Court Rules 2011”. The application before his Honour was an application to prosecute the respondent for contempt, which Murphy J held must fail because the orders relied on did not contain an endorsement.

84    On the evidence in the case before him, Murphy J’s reason (at [33]) for endorsing Perry J’s order was:

…The Court should not allow its orders to be disobeyed with impunity as to do so tends to bring the administration of justice into disrepute.

85    In other words, there was before Murphy J sufficient evidence of wilful disobedience for his Honour to make this finding. His Honour does not expressly state the power he relied on to make the orders he did in relation to Perry J’s original orders.

86    Titan was referred to with apparent approval by Flick J in Sydney Medical Service Co-operative Limited v Lakemba Medical Services Pty Ltd (No 2) [2016] FCA 1188. In that case, it would appear that the orders on which the prosecution for contempt proceeded did not initially bear the required endorsement. For that reason, Flick J made the following order:

Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), compliance with r 41.06 is dispensed with to the extent that the initial service of the Orders did not bear the endorsement as required by r 41.06.

87    It would appear from the reasons (at [22]) that the initial orders did not bear the required endorsement, but a set of orders subsequently served did (see [26]). The applicant moved on both sets of orders. How the endorsement came to be applied is not revealed in the reasons, but clearly it was applied. In the circumstances before his Honour, there was proof of personal service in accordance with the Rules, and his Honour was comfortably satisfied there had been wilful disobedience of the Court’s orders. A reading of the Court’s reasons discloses that the Court did not find the respondents’ witnesses entirely honest.

88    Other proceedings where an endorsement has been added to orders at a later date, or the requirement for an endorsement has been dispensed with include: Tax Practitioners Board v Lamede Group Proprietary Limited (No 2) [2016] FCA 656 (Dowsett J); Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 1441 (Moshinsky J) and Cooper, in the matter of Chopsonion Pty Ltd (Receivers and Managers Appointed) v Chopsonion Pty Ltd (Receivers and Managers Appointed) [2017] FCA 1207 (Besanko J).

89    The role of the requirement in r 41.06 has been the subject of different analysis by judges of this Court. Again, neither party directed the Court’s attention to any of these cases. The different approaches were summarised by Wigney J in Mensink v Parbery [2018] FCAFC 101 at [86]-[88]:

There would appear to be conflicting authority in respect of that issue. At the very least the position is unclear. Greenwood J in Mason v MWREDC Limited [2012] FCA 1083 at [47] noted that, with the exception of r 41.08(3), neither r 41.07 nor r 41.08 contain any express prohibition in relation to the enforcement of an order by committal, sequestration or punishment for contempt. Rule 41.08(3) is not relevant here because it relates to committal or sequestration orders where the person in default is a corporation or organisation. His Honour also found (at [49]) that notification under r 41.07(2) does not, in terms, require notification of the consequences of non-compliance with the order. His Honour did not, however, appear to decide that an order notified in accordance with r 41.07(2) could be enforced by way of contempt proceedings if the order itself did not include an endorsement in accordance with r 41.06.

In Titan Support Systems Inc v Minh Hoang Nguyen (No 2) [2015] FCA 359, Murphy J agreed generally with what Greenwood J had said in Mason, but clearly held (at [28]) that unless the required endorsement is included in the order served, or otherwise notified in accordance with Division 41.1 of the Federal Court Rules, the order may not be enforced by way of punishment for contempt.

In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2015] FCA 1275; (2015) 238 FCR 209, however, Jagot J stated (at [16]) that “[r]ule 41.06 is not a pre-condition to enforcement of an order by punishment for contempt”. Her Honour went on to note that the endorsement requirement in r 41.06 could, if necessary, be dispensed with pursuant to r 1.34 of the Federal Court Rules.

90    Wigney J declined to decide the matter as his Honour considered it was not necessary to do so. Besanko J agreed (at [1]) with Wigney J that the matter did not need to be determined on the appeal before the Court, observing:

The point about the lack of an endorsement requires an analysis of a number of authorities of this Court and may well be the subject of contest later in this proceeding.

91    Bromwich J did express a view on this matter, although his Honour noted that Mr Mensink’s submissions that an order must be endorsed and personally served before a finding of contempt can be made was “getting ahead of itself”, as the contempt proceedings had not reached the point of the Court determining whether or not a finding of contempt could be made out. At [197], Bromwich J recorded the submission of the respondents to the Full Court that the requirements of r 41.06 were not mandatory where service had been effected and the party had notice of the terms of the order. Nevertheless, Bromwich J’s view (accepting that rr 41.06 and 41.07 applied to the relevant orders) was (at [202]):

The submissions for the respondents on this topic should be accepted. The factual and rule differences in the cases identified on behalf of Mr Mensink above go to the application of the relevant principles, rather than to their underlying substance. The submissions for Mr Mensink overstate the effect of Titan Support Systems, which approved of the observations by Greenwood J in Mason v MWREDC and, in particular, did not dispute the effect of r 41.07(2) in effectively dispensing with the endorsement requirement in r 41.06 when notification has taken place in accordance with that subrule. In any event, the absence of the r 41.06 endorsement is only fatal to an application for contempt in the limited situation in which committal to imprisonment of an officer of a corporation or organisation is sought and that person was not present when the order was made: see r 41.08(2)(a) and (3). It will not always be necessary for a charge of contempt to be made out that the precise terms of an order have been communicated, let alone that such an order contains the endorsement, although such service and such an endorsement, or their absence, will always be a matter to take into account. As Jagot J pointed out in Humane Society International at [18]:

The point of requiring service of a court order is to bring matters to the attention of the party in question. It is not the case that a party can avoid having to comply with a court order and thereby can avoid the potential of being found in contempt of court merely by engaging in wilful blindness to the terms of the court order. This is demonstrated by various decisions including Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535, Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394 and Tchia v Rogerson (1992) 111 FLR 1.

92    Bromwich J then gave the following summary of the law:

In light of the above authority, it may safely be concluded that:

(1)    notification of orders in accordance with the alternative means in r 41.07(2) dispenses with the requirement for a warning in the form of the endorsement stipulated by r 41.06;

(2)    compliance with rules such as rr 41.06 and 41.07 may be dispensed with in appropriate cases;

(3)    the absence of an endorsement in accordance with r 41.06 will not necessarily be fatal to contempt proceedings; and

(4)    if an endorsement in accordance with r 41.06 is absent, that will almost invariably be a factor to take into account in deciding whether contempt charges should issue, whether to make a finding of contempt if charges do issue, and as to the sanction to be imposed if that finding is reached. However, that factor may be diminished in importance, or even become practically irrelevant, depending on the circumstances.

93    This led his Honour to conclude (at [204]):

To the extent that Titan Support Systems at [28] might be thought to require that an endorsement be made in accordance with r 41.06 in all circumstances other than where notification has been given in accordance with r 41.07(2) before contempt proceedings may be brought, respectfully, it should not be followed. While that endorsement is ordinarily required, and its absence may well be a most compelling reason for not allowing contempt proceedings either to be brought or to succeed, it is going too far to make the presence of the endorsement mandatory in all circumstances. In that regard, it should be observed that r 41.08, which describes how a contempt application is to be brought, does not, in terms, go that far. The absence of an endorsement (and service in accordance with r 41.07(1)) only prevents an application for contempt being made in the limited circumstances described in r 41.08(2)(c) and (3). Implicitly, such an absence is not fatal in other circumstances.

94    Bromwich J also referred to the Full Court decision of Hurd v Zomojo Pty Ltd [2015] FCAFC 148, where Besanko and Gilmour JJ said at [155]:

The effect of a lack of endorsement on the orders was raised in the course of submissions before the primary judge, and counsel for the appellants said he did not wish to be heard against the proposition that the lack of an endorsement did not affect the Court’s power to find a contempt had been committed and to so declare. That proposition is correct. Under the previous Rules (Federal Court Rules 1979 (Cth) O 37 r 2), an endorsement was required if a person was liable to imprisonment or to sequestration of property. That did not preclude a Court from imposing a fine where there is no endorsement (Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118; (2006) 152 FCR 129 at 145 [68]–[70]). In the same way the Court can make declarations even though the current Rules require an endorsement for imprisonment, sequestration of property or punishment for contempt (r 41.06).

95    I note the extent of this finding is that the Court may grant declaratory relief, but not punishment of the party found guilty of contempt.

96    Mensink is a recent decision of a Full Court of this Court. It is clear that Bromwich J’s findings about the absence of an endorsement are obiter dicta. Nevertheless, they are seriously and carefully considered. It is true, as Wigney J observed, that the other authorities in this Court may tend in slightly different directions.

97    On the present application, I do not need to enter into the debate itself about whether compliance with r 41.06 is a necessary precondition to a contempt proceeding, or to a positive finding of contempt. My task relates to an anterior issue.

98    However, these authorities are materially relevant, and the Court should have been directed to them. That is because they establish:

(a)    On at least two occasions (Murphy J in Titan and Flick J in Sydney Medical Services) and possibly four (see also Lamede and Advanced Medical Institute) single judges of this Court have either made orders, or proceeded on the basis of orders that must already have been made, endorsing an existing order of this Court with a penal notice, after the order has been entered;

(b)    Other judges of this Court (Greenwood, Jagot and Bromwich JJ) have expressed the view that an endorsement is not a necessary precondition to a contempt proceeding;

(c)    At least one judge (Jagot J) has expressed the view that the requirements of r 41.06 could be dispensed with in an appropriate case;

(d)    On at least two occasions, single judges of this Court have made orders pursuant to r 1.34 dispensing with the requirement for compliance with r 41.06 (Besanko J in Chopsonion and Flick J in Sydney Medical Services).

(e)    A majority of a Full Court (Besanko and Gilmour JJ in Hurd) have found that declaratory relief can be granted in a contempt proceeding notwithstanding the absence of an endorsement of a penal notice on an order.

99    I consider in light of these authorities, and my conclusion on reflection about r 39.05, that it would not be appropriate to refuse the Director’s application, subject to my satisfaction about the appropriate form of the penal notice. Although some dicta suggest endorsement is not a necessary precondition, others suggest it is. As I have explained, I consider it is appropriate that orders of this nature be rendered as effective as possible.

100    The orders will be varied so that they are endorsed with a penal notice and the varied copy of the orders will be entered. Orders will also be made requiring personal service of the order as varied on Ms Gibson. I consider that is appropriate when the express purpose for which the endorsement is sought is to enable future proceedings to be taken against Ms Gibson for contempt, should there be grounds to do so.

101    I am conscious that neither the Director nor Ms Gibson have had an opportunity to make submissions on these authorities. In the usual course, the Court would have given the parties that opportunity before handing down judgment. Here however, the failure to refer to these authorities was a failure of responsibility to assist the Court and I do not consider the delivery of judgment should be further postponed in that situation, especially when there has already been considerable delay since the 28 September 2017 orders were made. What I will do however, is allow a period of 14 days from the making of these orders before steps will be taken to vary and re-issue the 28 September 2017 orders. That will give either party, but particularly Ms Gibson, whose interests might be seen to be adversely affected by the conclusions I have reached, an opportunity to make any submissions about these authorities. No submissions are required to be made, but a period of time will be allowed if the parties choose to do so. I have set a short timeframe because the parties’ legal representatives should have been aware of these cases, and should not need long to address them if they choose to do so, now they have been set out in the reasons for judgment. If Ms Gibson wishes to be heard further, she will have to comply with the Court’s timetable on this occasion.

The form of the notice

102    As I have made clear, given the time for compliance has passed, I consider the penal notice should be expressed prospectively from the date that the endorsed order is made and stamped. Its function is then, expressly, to warn Ms Gibson of the possible consequences of continued breach of the orders. I also consider that it is appropriate for the orders to refer expressly to the non-payment of pecuniary penalties as set out in paragraph 1 of the 28 September 2017 orders, given the passage of time has meant that paragraphs 2 and 3 of the orders are no longer relevant. Due to the requirements of r 41.06, it is unavoidable that the “time for compliance” aspect of the warning must, in my opinion, remain in the notice. It will be up to any court dealing with a contempt application what should be made of those matters, on the evidence before that court.

103    The Director submitted that language should be included in the notice specifically warning Ms Gibson of the consequences of “wilful” conduct or conduct that is “calculated to defeat the effect of this order”. I do not consider that is necessary. The standard wording for an endorsement (reflected in the Enforcement Practice Note) is sufficient to put Ms Gibson on notice of the consequences of non-compliance with the order. She is, in any event, squarely on notice of those matters, having participated in this application through counsel and instructing solicitors.

104    Further, I do not accept Ms Gibson’s submission that the penal notice should explicitly refer to a failure to make a payment “in whole or in part” as potentially constituting contempt: this is apt to confuse and not required by r 41.06.

105    I am satisfied the form of penal notice which is Annexure A to the orders made today is an appropriate form in the particular, and somewhat unusual, circumstances of this application.

Conclusion

106    The application will be granted, subject to the matters I have set out at [101].

107    The Director did not seek costs and I do not consider it is appropriate for any costs orders to be made on the application. The Director needed to make the application because of a failure to attend to the endorsement at the appropriate time. Ms Gibson’s resistance of the order has been unsuccessful. In those circumstances, the appropriate position is that each party bear their own costs.

Associate:

Dated:    27 November 2018