Applicant v First Respondent

1 This proceeding adds another chapter to a long history of litigation. The parties, Moira Shire Council ('the Council') and Sidebottom Group Pty Ltd ('the company'),[1] have been in and out of the courts, including this Court, since 2013. What is more, they have been before me on three occasions, in 2015,[2] in 2016[3] and now in 2018.

2 At the heart of the dispute are two parcels of land ('the land') situated at 7 and 25 Saxton Street West, Numurkah, which are owned by the company. Since 2007 the company has used the land chiefly as a storage facility for used tyres. It seems the original idea was to develop the site into a tyre recycling plant. For whatever reason that did not come to pass. After several planning permits were issued, extended and expired, the Council began to agitate for the removal of the tyres. In 2013 some of the tyres, within a 50m2 area of the land, caught fire.[4] This put the Numurkah community at risk and caused significant disruption.

3 The Council then applied to the Victorian Civil and Administrative Tribunal ('VCAT') for an enforcement order under the Planning and Environment Act 1987. What followed was two years of increasingly onerous orders all of which failed to secure the company's compliance. In May 2015, after the matter was referred to this Court,[5] Shanan James Sidebottom was appointed sole director of the company. It is not in dispute that Mr Sidebottom has held that office since that time and so has been the directing or controlling 'mind of the company'.[6]

4 In June 2016 the Council filed a summons pursuant to O 75 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') seeking the committal of Mr Sidebottom for contempt of court. In September 2016, in Sidebottom (No 2), I declined to find Mr Sidebottom in contempt. I was at that time not satisfied beyond a reasonable doubt that the company had the financial wherewithal to comply with this Court's earlier orders.[7] Hence it was necessary for the parties to reformulate the enforcement order. As part of that process, on 14 December 2016, I accepted an undertaking from Mr Sidebottom, given in open court via his counsel, that the company had the capacity to comply with the reformulated order and that he would personally ensure its compliance.

5 It was against this backdrop - and after a further year of non-compliance - that the Council, on 8 January 2018, filed a fresh summons seeking the committal of Mr Sidebottom for contempt. On 22 June 2018, by consent, I pronounced each of the company and Mr Sidebottom in contempt for breach of the 14 December 2016 order. For convenience, I will refer to these instances of contempt as separate 'charges', charge one comprising the contempt of the company and charge two that of Mr Sidebottom. In reality, however, there is only one course of conduct that falls to be considered, i.e. that of the company as directed by Mr Sidebottom.

6 On 19 July 2018 I heard oral argument as to whether this Court should proceed to conviction and, if so, what penalty, if any, should be imposed. For the reasons that follow, I have concluded that the company and Mr Sidebottom should each be convicted of criminal contempt, the former being fined $50,000 and the latter sentenced to a term of imprisonment for four months.

7 The prior history of this proceeding is detailed in my reasons for judgment in Sidebottom (No 1) and Sidebottom (No 2). I therefore need only mention events since the publication of Sidebottom (No 2) in September 2016.

8 As I have said, because I was not then persuaded that the company had committed any contempt, it was necessary to reformulate the enforcement order. A mediation was arranged to that effect at which the parties agreed on a revised timeline. On 14 December 2016, I was presented with consent minutes, the contents of which I adopted and pronounced as orders ('the December 2016 order'). The relevant paragraphs are as follows:

1. The First Respondent must remove, from the land situated at 7 and 25 Saxton Street West, Numurkah ('the land'), and lawfully dispose:

1. by 15 April 2017, all materials located along the southern and western part of the tyre storage area on the land in the attached site plan ('tyre storage area') referred to as 'A' and marked with

2. by 15 August 2017, all rubber materials located along the eastern and northern part of the tyre storage area referred to as 'B' and marked with 'horizontal lines';

1. by 15 December 2017, all materials located along the southern part of the tyre storage area referred to as 'C' and marked with 'triangle signs';

1. by 15 April 2018, all materials located in the tyre storage area referred to as 'D' and marked with 'wavelength lines'; and 2. by 15 August 2018, all remaining materials located in the tyre storage area including, but not limited to, tyres, rubber, scrap metal and other similar waste material.
2. The removal of the materials identified in paragraph 1 of this order must commence on, or before, 15 January 2017.

1. Throughout the removal of the materials identified in paragraph 1 of this order:

1. all vegetation on the land within 20m of tyre stockpiled must be maintained to between 5-10cm in height; 2. no new materials forming part of the use of the land for materials recycling including, but not limited to, rubber materials must be brought on to the land; and

1. no new combustible materials must be kept within 20 m of tyre stockpiles in the tyre storage area.

9 The December 2016 order was secured by an undertaking given by Mr Sidebottom via his counsel, the terms of which (recorded in the 'Other Matters' section of the order) were as follows:

Mr Shanan James Sidebottom, director of the First Respondent, undertakes that the First Respondent has the capacity to, and will, comply with this order, and he will personally ensure that the First Respondent complies with each paragraph of this order.

10 The actual exchange that took place, on 14 December 2016, between myself and counsel for Mr Sidebottom was as follows:

HER HONOUR: Thank you. All right. How did you want to go about the undertaking [counsel]?

COUNSEL: Your Honour, I can give the undertaking myself on instructions from Mr Sidebottom if your Honour is content with that.

HER HONOUR: I certainly am ... we're in open court, it's on transcript.

COUNSEL: I'll just confirm those instructions.

HER HONOUR: Thank you.

COUNSEL: Yes, your Honour. Mr Sidebottom gives that undertaking as described in the other matters of [the] consent order.

HER HONOUR: Thank you. Mr Sidebottom, I'm going to say it again. They are very serious undertakings that you give to this court through counsel.[8]

11 From 18 January 2017 to 15 August 2017 the company transported a total of 345.69 tonnes of truck tyres to a facility in Somerton, Victoria, owned and operated by Tyrecycle Pty Ltd ('Tyrecycle').[9] No tyres have been removed from the land since 15 August 2017.

12 On 26 April 2017 the company wrote to the Council outlining a proposal for a temporary pyrolysis plant on the land. On 12 May 2017 the Council responded requesting more information. This was provided on 17 August 2017; however, no application for a planning permit was made. On 8 September 2017 the Council advised the company that the Environment Protection Authority Victoria ('EPA') did not support the installation of such a plant and that this was determinative. The company was advised that:

Consent is also not granted to depart from the timeframe for compliance set out in the Supreme Court order. You are reminded that the Supreme Court order made remains in force and our latest site audit reveals substantial non-compliance.[10]

13 On 22 November 2017 the company wrote to the Council outlining a proposal for the tyres on the land to be used in the construction of a flood levy. The Council replied the same day advising that a flood levy scheme was:

still several years away due to significant design, land acquisition and funding issues. On that basis it is not considered a plausible re-use for the tyres that would assist you in meeting your obligations under the current Supreme Court order.[11]

The company was again reminded of its obligations under the December 2016 order and was put on notice that the Council would be taking further legal action due to ongoing non-compliance.

14 On 8 January 2018 the Council filed and served a summons seeking the committal of Mr Sidebottom, as an officer of the company, for contempt of court. On 15 March 2018, out of an abundance of caution, the Council filed and served a further summons seeking the committal of the company for contempt of court. On 9 May 2018, with leave of the Court, the Council filed and served amended summonses on each of the company and Mr Sidebottom. On 13 March 2018 there was a hearing at which each of the company and Mr Sidebottom were legally represented. Shortly afterwards the solicitors acting for the company made an application to cease to act on grounds that the company could not afford to pay their retainer.[12] That application was granted on 8 May 2018 and henceforth only Mr Sidebottom was represented.

15 Significantly, in the period since December 2016, the company has not applied for any extension of time in which to comply with the terms of the order. This is in circumstances where the Council twice reminded the company of its obligations under the existing timetable.[13]

16 On 22 June 2018, by consent, the Court pronounced orders on the papers. The relevant paragraphs are as follows:

1. The [company] is in contempt of court, pursuant to O 75 of the Supreme Court (General Civil Procedure) Rules 2015, by reason of its failure to comply with paragraphs 1a, 1b, 1c and 1d of the Order of the Court made on 14 December 2016 and authenticated on 22 December 2016 ('the December order').
2. Mr Shanan Sidebottom is in contempt of court, pursuant to O 75 of the Supreme Court (General Civil Procedure) Rules 2015, by reason of:
   1. the failure of the First Respondent to comply with paragraphs 1a, 1b, 1c and 1d of the December order; and
   2. his failure, in contravention of the undertaking he gave to the Court (the terms of which are set out in the December order) to personally ensure that the First Respondent complied with paragraphs 1a, 1b, 1c and 1d of the December order.

17 As I have said, on 9 May 2018, the Council filed and served amended summonses on each of the company and Mr Sidebottom. The terms of the summonses are nearly identical (save for a reference to the undertaking given by Mr Sidebottom) and read as follows:

You are summoned to attend before the court on the hearing of an application by the Applicant, made in accordance with rules 66.05 and 75.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules), for the committal of you (an officer of the First Respondent) for contempt of court, by reason of:

(a) the failure of the First Respondent to comply with paragraphs 1a, 1b, 1c, 1d, 4a and 4c of the order of the court made on 14 December 2016 (authenticated on 22 December 2016 - the December Order); and

(b) your failure, in contravention of the undertaking which you gave to the court (the terms of which are set out in the December Order - the undertaking) to '... personally ensure that the First Respondent complies with each paragraph ...' of the December Order.

Particulars

The December Order (indorsed with a notice pursuant to rule 66.10 of the Rules) was served both on the First Respondent and you, personally, on 23 January 2017.

You gave an undertaking to the court in person.

By her affidavits, sworn on 28 November 2017, 20 December 2017, 12 February 2018 and 24 April 2018 Jacqueline Frances Miller deposed to:

• there being non-compliance in full with paragraph 1a of the December Order which she had observed during her inspections of the land situated at 7 & 25 Saxton Street West, Numurkah ('Land') on 21 April 2017, 15 August 2017, 18 December 2017, 7 February 2018 and 19 April 2018; and
• there being non-compliance in full with paragraph 1b of the December Order which she had observed during her inspections of the Land on 15 August 2017, 18 December 2017, 7 February 2018 and 19 April 2018.

By her affidavits sworn on 20 December 2017, 12 February 2018 and 24 April 2018, Jacqueline Frances Miller deposed to there being non-compliance with paragraph 1c of the December Order which she had observed during her inspections of the Land on 18 December 2017, 7 February 2018 and 19 April 2018.

By her affidavit sworn on 24 April 2018, Jacqueline Frances Miller deposed to there being non-compliance with paragraph 1d of the December Order which she had observed during her inspection of the Land on 19 April 2018.

By her affidavit sworn on 20 December 2017, Jacqueline Frances Miller deposed to having received correspondence dated 18 December 2017 from the Country Fire Authority ('CFA'), which contained the CFA's opinion that non-compliance with paragraphs 4a and 4c of the December Order was observed by officers of the CFA during the inspection of the Land on 18 December 2017 (exhibit JFM-7 to the 20 December 2017 affidavit of Jacqueline Frances Miller).

It is alleged that you have been in contempt of the court from 21 April 2017 to date, and continuing.

18 For completeness I note that the Council did not press the alleged failure of the company to manage the weeds and vegetation on the land as required by paragraphs 4(a) and (c) of the December 2016 order. Several paragraphs in the affidavits of the Council that go to this issue have accordingly been struck out.

19 Quite recently, in Fortune Holding Group Pty Ltd v Zhang (No 2),[14] I surveyed the legal principles governing contempt for breach of a court order. Those principles are well settled and need only be briefly restated here.

20 As there is no dispute about the fact that the company and Mr Sidebottom are in contempt of court it is not necessary to discuss the elements of the offence (to borrow that language from the criminal law). However, as the parties did not provide the Court with a set of agreed facts, I still need to make findings as to the nature and extent of the contempt. It will be necessary, in particular, to decide whether the acts or omissions constituting the breach of the December 2016 order were 'technical', 'wilful' or 'contumacious'. This is because, as the authorities make clear, a breach that is technical or wilful will be classed as a civil contempt; whereas a breach that is contumacious will be classed as a criminal contempt. The distinction has significant implications for the type and severity of the penalty to be imposed.

21 I will also have something to say more generally about the law of contempt as it relates to the actions of companies and their officers. And it will be necessary to set out the considerations ordinarily to be weighed in sentencing a contemnor adjudged guilty of a criminal contempt.

22 The species of contempt with which we are here concerned is breach of a court order. This has traditionally been categorised as a 'separate form of contempt' (i.e. from the various forms of 'criminal contempt') and referred to as 'civil contempt'.[15] Relevantly, into this category must also be placed the 'wilful breach of an undertaking given to a court, whether expressly or impliedly.'[16]

23 The use of labels such as 'civil' and 'criminal' to describe different kinds of contempt is artificial and may be apt to confuse.[17] Indeed, as Nettle J observed in his concurring reasons for judgment in CFMEU v Boral Resources (Vic) Pty Ltd, all proceedings for contempt are strictly speaking 'civil proceedings':

A proceeding for punishment for contempt constituted by disobedience of an injunction granted in a civil proceeding is not part of the criminal justice system ... Failure to obey an injunction is not a criminal offence unless the failure to comply is defiant or contumacious. A proceeding for contempt is not a proceeding for criminal contempt if the proceeding appears clearly to be remedial or coercive in nature as opposed to punitive. A criminal contempt is a common law offence, albeit not part of the ordinary common law. But even a proceeding for criminal contempt is not a criminal proceeding.[18]

His Honour pointed out that, even in the context of a criminal contempt, the ordinary rules of civil procedure apply.[19] Where confusion arises, however, is that this basic position must be qualified as follows:

The qualification is that some of the safeguards applicable to criminal proceedings also apply to a civil proceeding for criminal contempt; including, in the case of a defendant who is a natural person, the privilege against self-incrimination and the privilege against self-exposure to penalty. Their application rests on 'accepted notions of elementary justice' and reflects the fact that a proceeding for committal may result in 'very serious interference with the liberty of the subject'.[20]

A further qualification is that, as the High Court held in Witham v Holloway,[21] all charges of contempt must be proven beyond reasonable doubt.

24 In summary, a contempt proceeding for breach of a court order is not a part of the criminal justice system, although certain features of criminal procedure must be imported to ensure the contemnor is fairly tried. As the Court of Appeal put it CFMEU v Grocon, contempt proceedings have a 'chameleon-like quality', which they take 'from their surrounding circumstances, and the context within which the analysis proceeds.'[22]

25 A contemnor who is found to have breached a court order or undertaking will ordinarily be adjudged guilty of a civil contempt. The exception is where there has been a finding of contumacy: a contemnor may then be adjudged guilty of a criminal contempt.[23]

26 As a matter of natural language, the Oxford English Dictionary defines contumacy as a 'stubborn refusal to obey or comply with authority, especially disobedience to a court order or summons.' More particularly, in the context of a proceeding for breach of a court order, the authorities indicate that a contumacious contempt will be one that involves not only 'wilful disobedience' but an additional element of 'defiance'[24] or even 'public defiance'.[25] Contumacy is to be treated as an aggravating factor, so to speak, and is chiefly relevant to whether a conviction should be entered and, if so, what penalty, if any, should be imposed.[26]

27 As the plurality of the High Court observed in Mudginberri, where there has been 'wilful disobedience to an order of the court and a measure of contumacy on the part of the defendants', the law of contempt takes on a 'dual character', that is, 'as between the parties to the proceedings' and 'as between the party in default and the State'.[27] In other words, it is the contemnor's 'public defiance' that gives rise to a 'public injury', which in turn 'calls into play a penal or disciplinary jurisdiction'.[28] This is the rationale for the rule that it is only in cases of contumacious disobedience, in which there has been a finding of criminal contempt, that a conviction will be entered. It also helps to explain the reluctance of sentencing courts, although open to them at law, to impose a term of imprisonment unless the contemnor has been adjudged guilty of a criminal contempt.[29]

28 The authorities indicate that contumacy is not an element of the offence of criminal contempt where it arises out of breach of a court order. It is therefore not necessary for contumacy to be pleaded as such; rather, as I have said, it is be treated as a circumstance of aggravation and dealt with at the penalty stage.[30] However, as the Court of Appeal explained in CFMEU v Grocon, this does not mean that the moving party is not obliged to put the contemnor on notice of the case to be answered.[31] On the contrary, such notice is required by procedural fairness, since the allegation of contumacy 'exposes the contemnor to a finding that he or she has committed an offence for which there may be a conviction recorded and greater punishment imposed than would be warranted for a civil contempt.'[32] The difficulty is that the conduct constituting the contempt may only appear contumacious after some or all the evidence has been led.[33] The courts have therefore charted a middle course between the demands of procedural fairness and the fundamental public good at which the law of contempt aims, namely the preservation of the due administration of justice, especially given the rapid manner and myriad circumstances in which contempts of court may arise.[34]

29 In any event, in the current proceeding, it is not in dispute that the Council put each of the company and Mr Sidebottom on notice of the seriousness of the alleged breaches of the December 2016 order and of their intention to push for a finding of criminal contempt. That course of action was contemplated not only by the summonses served personally on Mr Sidebottom, which indicated the seriousness of the charges and did not exclude the possibility of a finding of criminal contempt,[35] but also from the tenor of the Council's written and oral submissions.

30 It is well settled that this Court has the power to punish individuals whose conduct constitutes a 'contempt by the company he or she controls.'[36] A great many cases illustrate this principle in action.[37]

31 There is nothing controversial or difficult about the proposition that, in a proceeding for contempt for breach of a court order, the conduct of a company will fall at the feet of its controlling officers. In this case, since Mr Sidebottom gave an undertaking to ensure the compliance of the company, the situation is even more clear cut. Nevertheless, for the avoidance of doubt, I make the following observations about the principles to be distilled from the authorities.

32 The starting point, as I have said, is that company officers are liable for any contempt committed by the company they control. This follows from the fact that, as Maxwell P put it in Christian Youth Camps Ltd v Cobaw Community Health Services Ltd, a company possesses neither 'soul nor body'.[38] Its state of mind is a legal fiction. The requisite element of intention, which is implicit in the very idea of contumaciousness,[39] will therefore be imputed from the actions or statements of the controlling officers of the company in all the circumstances.

33 While it is not strictly necessary to say so - since Mr Sidebottom gave an undertaking to ensure the company's compliance - I note that the abovementioned doctrine of imputation has been extended to encompass third party liability. A director who has had notice of a court order will therefore be under a duty to take reasonable steps to ensure that it is obeyed. And if they wilfully fail to do so, and the order is breached, they may be held directly liable for contempt.[40] It may then be a defence if a director reasonably believed some other director or officer was taking those steps. However, it will not be a defence to distinguish between acts and omissions, since a 'failure to supervise, investigate "or wilful blindness" on the part of a director may qualify the conduct as contemptuous.'[41]

34 Justice Dixon, in Gashi (No 3),[42] set out the considerations ordinarily to be weighed in determining an appropriate penalty for contempt of court. Those considerations are as follows:

(a) the contemnor's personal circumstances;

(b) the nature and circumstances of the contempt;

(c) the actual consequences of the contempt;

(d) the effect of the contempt on the administration of justice;

(e) the contemnor's culpability;

(f) the need to deter the contemnor and others from repeating the contempt;

(g) the contemnor's reasons for his or her conduct;

(h) the absence or presence of a prior conviction for contempt;

(i) the contemnor's financial means; and

(j) whether the contemnor has exhibited general contrition and made a full and ample apology.[43]

These principles are directly applicable to the present case.

35 Experience shows that a court order may be breached in an infinite variety of ways. This makes it difficult to identify anything like a range of appropriate sentences for contumacious contempt. And there is no legislated maximum penalty to guide sentencing in this area. Nevertheless, as the High Court put it in Hili v The Queen, comparable cases may serve as a 'yardstick'.[44]

36 The following cases all feature contumacious conduct and most concern companies and their officers. A number include breach of an undertaking in addition to a court order. They also all feature the imposition of a term of imprisonment (in some cases suspended on terms) and often a fine. I should add that, while the cases mostly use the language of 'first respondent', 'second respondent', 'third respondent' and so on, it is desirable for present purposes to speak of 'the defendant' and 'the company'. For convenience, I have prepared Annexure A (see appended to these reasons), which sets out a brief summary of cases regarding contumacious contempt.

37 In Gashi (No 3)[45] the defendant and the company of which he was the sole director were each convicted of criminal contempt. The defendant had been subject to a freezing order imposed by this Court. He breached that order by attempting to sell various properties. Justice Dixon held that the contempt was contumacious and described the defendant's clandestine conduct as an aggravating factor. Nor did the defendant's apology show any real contrition since he had pleaded not guilty and attempted to blame his advisers. However, Dixon J took into account several mitigating factors, including that the defendant was a family man without prior convictions for contempt, the possibility of straightened financial circumstances and the imposition of an order for indemnity costs. Most notably, as the transfers had not yet been completed, the 'effect of the freezing order was not, ultimately, thwarted.'[46] The defendant was sentenced to two terms of three months' imprisonment to be served concurrently. His sentence was, however, suspended on terms including that he give an undertaking to the Court to comply with the freezing order. The company was also fined $50,000.

38 In ACCC v Levi (No 3)[47] the defendant was adjudged guilty of criminal contempt and sentenced to ten months' imprisonment, four of which were to be served, and six suspended on terms. The defendant had breached a court order restraining him from selling businesses without providing the purchaser with certain information. In imposing a custodial sentence, McKerracher J took into account the defendant's prior convictions for dishonesty (although not contempt); the fact that the contempts committed were serious, numerous and occurred almost immediately after the court order was made (continuing even after the ACCC instituted the contempt proceeding); his attitude of 'belligerent aggression';[48] the unlikelihood that any of his victims would recover funds; his late plea of guilty; and the fact that he had made an apology to the complainants.

39 In Goldstar Corporation[49] the defendant and the company of which he was the principal director were each convicted of criminal contempt. The contempt related to the flouting of an order restraining the company from engaging in certain misleading and deceptive practices in trade or commerce. Significantly, both the defendant and the company had earlier been found guilty of contempt relating to the same behaviour, the contempt there flowing from a failure to obey an undertaking given to the court. For that conduct, the defendant had been sentenced to two months' imprisonment, which had been stayed subject to a restraining order. For the further breach of that order, and in light of the sentence already imposed, Kiefel J (as her Honour then was) held that a custodial sentence was warranted. Her Honour found that the 'sheer number' of breaches and their 'occurrence during [ongoing] proceedings' reflected a lack of honesty and willingness to ensure compliance.[50] A substantial penalty was therefore warranted. Justice Kiefel sentenced the defendant to a term of imprisonment of six months and fined the company $30,000. Her Honour also awarded costs against them.

40 In Australian Prudential Regulation Authority v Siminton (No 10)[51] the defendant was found guilty of eight charges of contempt and, for each charge, sentenced to a term of imprisonment of twelve months. The sentences were ordered to be served concurrently. The defendant had breached orders that restrained him from dealing with, withdrawing or disposing of monies held in certain accounts. He had previously been jailed for contempt. Tracey J held that the defendant's conduct in breach of the orders had been 'deliberate, calculated and disguised'.[52] The defendant had not apologised or sought to 'purge his contempt'[53] and had not put before the court any evidence of his personal or financial circumstances.

41 In ASIC v Reid (No 2)[54] the defendant had been restrained by an order of the Federal Court of Australia from managing a corporation. After breaching that order, twice, he gave an undertaking to the Court that he would not manage corporations in the future. He was subsequently found guilty of contempt for a third time, having breached the order and undertaking, for which he was sentenced to a term of 12 months' imprisonment suspended on terms. He then committed further breaches for which Lander J sentenced to him to a term of nine months' imprisonment. Relevant factors in the exercise of the sentencing discretion included the defendant's prior convictions for contempt, the contumacious nature of his conduct, the fact that he displayed no remorse or insight into his offending and the fact that he had already spent three months in custody.

42 In Jones v Toben (No 2)[55] the defendant was sentenced to a term of three months' imprisonment having been found guilty of 24 counts of contumacious contempt. The defendant's conduct, which included publishing 'provocative material calculated to scandalise the Court'[56] on the morning of the penalty hearing, demonstrated a 'continuing disrespect' for the administration of justice.[57] The defendant did not explain his behaviour and showed a lack of remorse. Although he apologised for his conduct, Lander J held that the apology was disingenuous, having been given only after the defendant had been advised to by counsel.

43 In ASIC v Michalik[58] the defendants were sentenced to a period of 18 months' imprisonment for breaching an order requiring them to surrender their passports and refrain from leaving New South Wales. Although the defendants surrendered their passports, they subsequently applied for and received new ones, and were arrested attempting to board an overseas flight. Palmer J held that it was 'difficult to imagine more serious, flagrant and calculated contempts of court than those committed by the defendants.'[59] The defendants knew that their actions would give rise to serious consequences and their contempts were motivated by a desire to escape proceedings initiated against them. Although they apologised to the court, they only did so through counsel, making the sincerity of their apologies difficult to determine. Specific and general deterrence required the imposition of a significant custodial sentence.

44 In Ronowska v Kus (No 2)[60] the defendant (there was another defendant who is not relevant for present purposes) was sentenced to a period of 18 months' imprisonment after being found guilty of several counts of criminal contempt. The defendant had, in breach of a court order, sold a property but failed to lodge a portion of the proceeds in a controlled monies account. He then gave deliberately false evidence regarding the transaction, which was designed to hide his actions, deny the plaintiff the benefit of judgment in her favour and financially benefit himself. This conduct was described by Pembroke J as 'deliberate, defiant and contumelious' and 'intended to obstruct the course of justice.'[61] His Honour held that a lengthy term of imprisonment was warranted in the circumstances. The case presented aggravating factors but no mitigating factors. His Honour also awarded costs on an indemnity basis.

45 In Vaysman (No 2)[62] the Full Court of the Federal Court reduced the defendant's sentence for criminal contempt from three to two years' imprisonment. He had been one of twenty-three defendants in a contempt proceeding brought in the Federal Court of Australia by Deckers Outdoor Corporation Inc ('Deckers'). The contemptuous conduct involved the defendant and his associates (many of whom were related to him by blood) manufacturing and selling fake 'Ugg' boots in flagrant violation of Deckers' intellectual property.[63] The trial judge, Tracey J, found the defendant guilty of ten charges of criminal contempt. The defendant appealed his sentence on six grounds including that of manifest excess. The Full Court described the defendant's contempts as 'deliberate, serious and carried out over a substantial period of time'.[64] His apology to the court was given little weight. Notably, as in the present case, the defendant had also breached an undertaking given to the court. Nevertheless, despite the objective gravity of the contempts, the Full Court held that his sentence should be reduced from three to two years' imprisonment.

46 In Thunder Studios Inc (California) v Kazal (No 2)[65] Rares J sentenced the defendant (there was another defendant who is not relevant for present purposes) to a total effective sentence of 18 months' imprisonment after he was convicted of six counts of criminal contempt. The defendant had breached an order restraining him from conveying certain imputations about other parties with whom he was engaged in litigation. He was also found to have brought improper pressure to bear on those parties designed to encourage them to end the litigation. The public nature of the contempts was an important factor in the exercise of the sentencing discretion. The defendant had hired vans to drive around Sydney displaying prominent advertisements that would direct onlookers to a website on which the imputations were published. The flavour of the imputations was along the lines that he had 'teams of people in both Sydney and Los Angeles' who would 'expose ... all of the spineless thieves who thought that they could help themselves to steal from my family'.[66] The ongoing nature of the contempt and the defendant's 'public defiance' were factors take into account by Rares J.[67]

47 The Council drew the Court's attention to its submissions made prior to the publication of Sidebottom (No 2). The Council then contended that the Court should make orders that would 'focus the mind' of Mr Sidebottom as the controlling officer of the company.[68] Given that the Court had not been able to focus his mind, the Council submitted that the Court should now adopt a 'more reliable, tried and tested method' of securing compliance.[69]

48 The Council submitted that, based on the evidence, there are two viable explanations for the company's noncompliance:

(a) consistent with Mr Sidebottom's undertaking, the company had the necessary capacity to comply with the timetable required by the December 2016 order, but chose not to; or

(b) Mr Sidebottom's undertaking was not honestly given and the bases for it were not reasonably held by him.[70]

49 The Council submitted that Mr Sidebottom had no basis for assuming that Tyrecycle would continue to charge $20 per tonne to receive the approximately 5000 tonnes of tyres remaining on the land.[71] Notably, prior to the making of the December 2016 order, neither Mr Sidebottom nor any other person contacted Tyrecycle on behalf of the company to make arrangements for the removal of the tyres.[72] The Council submitted that only 345.59 of the approximately 5000 tonnes of tyres on the land were removed between the December 2016 order and 8 February 2018 - a mere seven per cent reduction over 14 months.[73]

50 The Council submitted that Mr Sidebottom's breach of the undertaking constituted a contumacious disregard of the December 2016 order.[74] It submitted that Mr Sidebottom expected his undertaking to be treated as a 'flexible arrangement'.[75] This followed from the fact that neither Mr Sidebottom nor anybody else contacted the Court or the Council about the company's inability to comply with the December 2016 order. This revealed the 'arrogance' and 'impudence' of Mr Sidebottom and the company.[76]

51 The Council submitted that the company and Mr Sidebottom should each be convicted of criminal contempt and penalised as follows:

(a) the company be ordered to pay a fine of not less than $250,000; and

(b) Mr Sidebottom be sentenced to a term of imprisonment at the Court's discretion.[77]

The Council submitted that each of those dispositions should be wholly suspended pending compliance with an order that all tyres and other materials (as captured by the December 2016 order) on the land be removed within 90 days.[78]

52 Mr Sidebottom indicated that, as he had consented to orders pronouncing the company and himself in contempt, his submissions should not be taken as a defence.[79] He conceded that his behaviour had been imprudent and unreasonable and emphasised that his submissions were made by way of mitigation.[80]

53 Mr Sidebottom submitted that, although he effectively inherited the tyres that are on the land, he has 'made efforts', albeit unsuccessfully, to have them removed.[81] He submitted that the primary reason for non-compliance with the December 2016 order was a lack of finances. This made it impossible for the company to pay Tyrecyle (or anybody else) to remove and/or process the tyres.[82]

54 Mr Sidebottom submitted that there is no evidence before the Court that the tyres are a threat to public safety or that his conduct was in any way intended to frustrate or impede the administration of justice.[83] He submitted that, as to his state of mind at the time, he genuinely believed that the company would be able to comply with the timetable provided for in the December 2016 order.

55 Mr Sidebottom submitted that there is no evidence of dishonesty on his part. He made himself personally available to the Council and was always willing for the land to be inspected.[84] He submitted that in the circumstances there is no evidence that his contempt was wilful or contumacious.[85]

56 Mr Sidebottom reminded the Court that his income is $300 per week and he lives on the land. He submitted that he has suffered stress and anxiety as a result of being required to remove the tyres.[86] He did not, however, adduce any medical evidence in support of this submission.

57 Mr Sidebottom submitted that he has apologised to the Court and is remorseful for his actions. He made proper concessions in his affidavits and during cross-examination.[87] He submitted that he should therefore be entitled to a discounted sentence.[88]

58 Mr Sidebottom submitted that, as to charge one, the Court ought not exercise the contempt jurisdiction because to do so, in addition to charge two, would offend the principle of totality and result in double punishment.[89] During the course of oral argument,[90] counsel for Mr Sidebottom took the Court to the following passage from the joint reasons of McHugh, Hayne and Callinan JJ in Pearce v The Queen:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[91]

59 Mr Sidebottom submitted that in circumstances where a contemnor solely owns or has significant shareholding of a company, as is the case here, the Court when formulating penalty should consider the effect that a fine imposed on the company will have on the contemnor's pecuniary interests.[92] He further submitted that the company is 'effectively impecunious - probably insolvent'.[93]

60 Mr Sidebottom submitted that the Court should have regard to the principle of parsimony and that a custodial sentence would be 'crushing, disproportionately harsh and more severe than what is necessary to achieve the removal of the tyres'.[94] Moreover, he submitted that incarceration would lead to further delay in removal of the tyres, since he would be unable to perform his duties as director of the company.[95]

61 Mr Sidebottom submitted that a custodial sentence would not be within range and that it would be impossible to have the tyres removed within 90 days (as per the Council's time frame).[96] Rather, for charge one, Mr Sidebottom submitted that he should be fined:

(a) $2,500.00, suspended if the tyres identified in area 'A' of the December 2016 order are removed by 31 October 2018;

(b) $2,500.00, suspended if the tyres identified in area 'B' of the December 2016 order are removed by 31 January 2019;

(c) $2,500.00, suspended if the tyres identified in area 'C' of the December 2016 order are removed by 30 April 2019; and

(d) $2,500.00, suspended if the tyres identified in area 'D' of the December 2016 order are removed by 31 July 2019.

62 The following affidavits were tendered into evidence on behalf of the Council and not challenged by Mr Sidebottom:

(a) Jacqueline Frances Miller, a development compliance officer employed by the Council, sworn:

(i) 28 November 2017;

(ii) 20 December 2017;

(iii) 12 February 2018; and

(iv) 24 April 2018.

(b) Stuart Gordon McKenzie, a design engineer employed by the Council, sworn 28 November 2017;

(c) Benjamin Murray McDonald, a student planning officer employed by the Council, affirmed December 2017;

(d) Sarah Anne Cumming, a regional investigator employed by the EPA, affirmed 12 February 2018;

(e) Marcus Philip Heath, a solicitor of the firm Russell Kennedy, who, on behalf of the Council, has the care and conduct of this proceeding, sworn 20 March 2018; and

(f) Clinton Drew Habner, the national sales manager for Tyrecycle since 27 April 2017, affirmed 3 May 2018.

63 The affidavits of Ms Miller, Mr McKenzie and Mr McDonald relate to inspections of the land carried out on: 22 March 2017, 21 April 2017, 15 August 2017, 18 December 2017 and 7 February 2018. The inspections were conducted to assess compliance with paragraphs 1(a), (b), (c) and (d) of the December 2016 order which required the removal of materials by 15 April 2017, 15 August 2017, 15 December 2017 and 15 April 2018 respectively.

64 The following affidavits were tendered into evidence on behalf of Mr Sidebottom:

(i) 23 April 2018;

(ii) 1 May 2018; and

(iii) 12 July 2018.

65 The only witness to give viva voce evidence at trial was Mr Sidebottom.

66 It should be noted that the parties could not agree on a joint statement of facts. It was therefore necessary for certain matters to be put to Mr Sidebottom in cross-examination so that this Court, as the tribunal of fact, could make a determination as to whether his contempt was technical, wilful or contumacious. As Gillard J explained in Pico Holdings Inc v Voss:

In accordance with the normal principles of sentencing in this State, any finding of fact which has not been admitted by the plea of guilty, has to be established beyond reasonable doubt if it is adverse to the interests of [the contemnor]. On the other hand, any facts in [the contemnor's] favour have to be established on the balance of probabilities.[97]

67 Ms Miller is the Council's development compliance officer. She undertook inspections of the land on 21 April 2017, 15 August 2017, 18 December 2017, 7 February 2018 and 19 April 2018 for the purpose of assessing compliance with the December 2016 order. During each inspection, other persons accompanied Ms Miller, including other Council officers, officers from the EPA and officers from the Country Fire Authority ('CFA').

68 During each inspection of the land Ms Miller observed that paragraph 1(a) of the December 2016 order had not been complied with.[98]

69 During the inspections of the land undertaken on 15 August 2017, 18 December 2017, 7 February 2018 and 19 April 2018, Ms Miller observed that paragraph 1(b) of the December 2016 order had not been complied with.[99]

70 During the inspections of the land undertaken on 18 December 2017, 7 February 2018 and 19 April 2018 Ms Miller observed that there had not been compliance with paragraph 1(c) of the December 2016 order.[100]

71 During the inspection of the land undertaken on 19 April 2018, Ms Miller observed that there had not been compliance with paragraph 1(d) of the December 2016 order.[101]

72 Mr Habner swore an affidavit dated 3 May 2018. Since 27 April 2017 Mr Habner has been employed as a national sales manager for Tyrecycle. Tyrecycle is a tyre recycling plant. Tyrecycle's head office is located at 30-56 Encore Avenue, Somerton, Victoria ('Somerton site'). Mr Habner's unchallenged evidence was as follows:

(a) Tyrecycle is a market leader in the tyre recycling industry with a national network of collection and processing facilities. It operates Australia's largest tyre recycling plant at the Somerton site;[102]

(b) in July 2015 Tyrecycle entered into an agreement with the company to accept 20,000 tyres (which equates to approximately 900 tonnes) at a rate of $20 per tonne on the basis of two to three loads per week being received at the Somerton site. The parties agreed there would be a market review once the 20,000 tyre threshold had been reached. They also agreed upon terms for the payment of outstanding debts owed to Tyrecycle by Australian Rubber Manufacturers Pty Ltd ('ARM');[103]

(c) Tyrecycle has no record of being contacted by Mr Sidebottom or anybody else for the purpose of negotiating the processing of the tyres in accordance with the timetable set out in the December 2016 order;[104]

(d) Tyrecycle has no record of being contacted by Mr Sidebottom or anybody else for the purpose of negotiating arrangements for it to accept for processing the entire volume of tyres located on the land;[105]

(e) during 2016, after the delivery of tyres on 27 January 2016, the only contact Tyrecycle had with the company related to unpaid ARM accounts;[106]

(f) Mr Habner disputes Mr Sidebottom's evidence that a load of tyres was intended to be made up on 20 February 2017 but that 'Tyrecycle were [at] capacity and unable to accept due to oversupply'.[107] Mr Habner deposes: 'I do not believe this to be true. Tyrecycle has no records which support this assertion;'[108]

(g) Mr Habner confirms that the company delivered tyres to Tyrecycle on 27 January 2016; 18, 20, 27 and 31 January 2017; 1, 3, 9, 10 and 16 February 2017; 8, 9, 10, 11, 14 and 15 August 2017; and that Tyrecycle has not received any further tyres from the company since 15 August 2017. During the period 18 January 2017 to 15 August 2017, the company transported a total of 345.69 tonnes of truck tyres to the Somerton site. In total, Tyrecycle has received 1,235.71 tonnes of tyres from ARM and the company;[109]

(h) on or about 1 February 2017 Tyrecycle reached agreement with the company on a rate of $70 per tonne for truck tyres, with a review on the price to occur on 30 June 2017;[110]

(i) in early August 2017 Mr Sidebottom contacted Mr Habner and negotiated a price of $95 per tonne for the receipt of tyres and also for the payment of money owing to Tyrecycle;[111] and

(j) had Tyrecycle been approached by the company to negotiate an arrangement to accept the entire volume of tyres located at the land, Mr Habner believes Tyrecycle would have had the capacity to accept the tyres at its Somerton site consistent with the December 2016 order, and would have been willing to negotiate a price subject to terms.[112]

73 Mr Sidebottom has been the sole director of the company from approximately May 2015. He is the sole shareholder in the company and the shares are beneficially held.[113] Furthermore, since May 2015, he has been the operations manager of Transpro Logistics Pty Ltd ('Transpro').[114]

74 Mr Sidebottom's income is, and has been since May 2015, approximately $300 per week. He deposes that he has minimal assets.[115] The company and Transpro operate out of the land. Mr Sidebottom lives on the land rent-free as part of his role with the company and Transpro.[116]

75 Transpro has five prime movers. In December 2016 Transpro was operating four prime movers (identified as T51, T53, T54 and T55). The fifth prime mover was off the road when Mr Sidebottom gave the undertaking and he did not expect it would be operational in time to assist with the removal of the tyres. Meanwhile, Transpro had four bdouble trailers, three tautline trailers and one tipper. The tautline trailers were used to remove the tyres.[117]

76 Mr Sidebottom's evidence was that he gave the undertaking on the following bases:

(i) the tyres would be taken to Tyrecycle in Somerton for recycling and processing;

(ii) Tyrecycle would charge $20 per tonne;

(iii) Transpro would pay the company $4500 per month rent to operate out of the property;

(iv) the company's only income would be rent from Transpro;

(v) the company would repay the loan from Mr Buckingham of $390,000 ('Buckingham loan') subject to prior arrangements being extended beyond 20 April 2017;

(vi) the company would pay monthly interest on the Buckingham loan;

(vii) his personal income would be $300 per week;

(viii) Transpro would facilitate the removal of the tyres because the company could not afford to pay for external logistics; and

(ix) Transpro would have four trucks on the road. One of the prime-movers with a b-double tautliner trailer would therefore be used to take the tyres from Numurkah to Somerton.[118]

77 Mr Sidebottom's evidence was that, although the undertaking was voluntarily and honestly given,

it was given in circumstances where the [Council] would not have agreed to the revised timetable in the December orders without my personal undertaking. Had the council not agreed to a new timetable, despite being acquitted of contempt, the Sidebottom Group would have been in non-compliance of previous orders from 15 September 2016, being the date of the Court's decision in [Sidebottom (No 1)]. This was recognised by the orders made on 15 September 2016 staying the old orders.[119]

78 Mr Sidebottom's evidence in relation to the removal of the tyres from the land was as follows:

(a) he had previously taken tyres to Tyrecycle from July 2015 to January 2016 and had been charged $20 per tonne. This was on the basis of an agreement the company had with Tyrecycle to process the tyres for $20 per tonne for 600 tonnes. Only 387.04 tonnes had been sent by the company to Tyrecycle and it was Mr Sidebottom's belief that the agreement would apply to a further 212.06 tonnes. However, when he arranged for four loads in January 2016, the company was charged $80 per tonne;[120]

(b) Mr Sidebottom received legal advice that the agreement for $20 per tonne would be enforceable, however, he took the view that it would not be appropriate to spend the company's money on litigation to enforce the agreement as there was the risk of litigation and the risk that it would damage the relationship with Tyrecycle;[121]

(c) four loads of tyres were taken to Tyrecycle on 18, 20, 27 and 31 January 2017. The loads were taken by Transpro in tautliner trailers;[122]

(d) in late January or early February 2017 Mr Sidebottom contacted Tyrecycle to discuss the price it was charging the company and he renegotiated a rate of $70 per tonne for the outstanding balance of the company's tyres;[123]

(e) further loads of tyres were sent to Tyrecycle on 1, 3, 9, 10 and 16 February 2017;[124]

(f) on 14 February 2017, T55 and its trailer was issued a defect notice at West Wyalong and accordingly T53 with a tautliner had to be taken from the tyre task and deployed to move T55's load. T55 was off the road until 1 March 2017 and the trailer remains in West Wyalong;[125]

(g) on 22 February 2017, T54 broke down in Ceduna and it only came back into operation in February 2018;[126]

(h) Transpro's income was reduced because of the incidences involving the Transpro trucks and it has affected its capacity to transport tyres for the company to Tyrecycle;[127]

(i) on 2 June 2017 Tyrecycle sent a letter to Mr Sidebottom stating it was increasing its fees to between $233 and $450 per tonne.[128] Mr Sidebottom called Mr Habner in early August and renegotiated the fees to $95 per tonne. Mr Sidebottom's evidence is that the cheaper price was because he and the company would bundle the tyres prior to delivery at Tyrecycle;[129]

(j) Mr Sidebottom prepared a spreadsheet demonstrating that the company paid $29,529.15 to Tyrecycle to process 345.69 tonnes of tyres. He deposes that had the company been charged $20 per tonne, then it would have been able to take 1476.46 tonnes to Tyrecycle;[130] and

(k) Mr Sidebottom expected that there might be an increase in per tonne charges to process the tyres based on inflation, but he 'did not expect that it would have increased as much as it did'. It was his belief that 'Tyrecycle are taking advantage of the Sidebottom Group's predicament'.[131] Mr Sidebottom thought there may have been a slight increase in the rate charged by Tyrecycle but never envisaged that it would quadruple.[132]

79 Mr Sidebottom deposed in his 12 July 2018 affidavit:

I was not responsible for the tyres coming onto the property but I became director of the [company] in May 2015 to clean up the mess the company found itself in because of earlier mismanagement and because of that I am responsible for removal of the tyres. I regret and am sorry to the court, the Moira Shire Council and the local community that I have failed in that responsibility.

I am extremely sorry to be back in court and I have never wanted to be in this position, but I have honestly done everything that I believe possible and to the best of my ability to comply with the orders. I have the utmost respect for our country's legal system and understand the importance of giving an undertaking in court. I would never have given it if I was not 100 per cent sure at the time I could comply with it[133]

80 Mr Sidebottom deposed to the anxiety that he lives with in relation to not being able to remove the tyres, as well as the combined stress of dealing with the increase in rates Tyrecycle charged for processing the tyres; having to find a way on short notice to pay the Buckingham loan; and organising Transpro's trucks with a bad run of mechanical breakdowns. Mr Sidebottom says that these factors have made him physically ill and pushed him to 'dark emotional places' and to breaking point.[134]

81 In cross-examination Mr Sidebottom agreed he did not contact Tyrecycle prior to giving the undertaking to confirm the price for processing the tyres. He apologised and said that with the benefit of hindsight he should have contacted Tyrecycle.[135] Mr Sidebottom agreed that when he gave the undertaking there were approximately 5000 tonnes of tyres on the land.[136] To date, 345.6 tonnes of tyres have been removed from the land, leaving approximately 4654 tonnes on the land.[137]

82 In cross-examination Mr Sidebottom was taken to an email from Matthew McInerney, National Account Manager at Tyrecycle, dated 8 July 2015 to Raymond Sidebottom (Mr Sidebottom's father) and to Mr Sidebottom. The email records:

Hi Ray,

Thanks for coming to see us yesterday.

As discussed, Tyrecycle will offer the following arrangement to help continue to clear the tyres from Numurkah.

• $3,000 plus GST payment towards existing debt to be received by Tyrecycle by next Monday 13/7.
• Invoices 477385 and 490300 to be credited back to $20/tonne by Tyrecycle.
• 20,000 tyres then able to be dropped at Tyrecycle at $20/tonne plus GST, at a rate of two to three loads per week or as otherwise agreed.
• Payment for each week's drop-offs to be made by EFT the following Monday, together with $750 towards outstanding debt.

The project will be reviewed once the 20,000 truck tyre milestone is reached.

Regards,

Matt[138]

83 On 19 August 2015 Mr McInerney sent a further email to Raymond Sidebottom and Mr Sidebottom. The email was as follows:

Hi Ray,

Thanks for your call this afternoon.

As mentioned, Tyrecycle can continue to receive up to 3 loads per week of truck tyres only, between the hours of 7am - 3pm Monday to Friday.

This quantity could be increased to 4 loads per week from October 1st.

Once the threshold of 20,000 truck tyres is reached for this agreement, we would need to review the current price in accordance with our product demand. This may, or may not involve a price increase just depending on the rate for recycled rubber commodities at that time.

Thanks and regards,

Matt[139]

84 Mr Sidebottom thought the terms of the agreement negotiated by Raymond Sidebottom and Tyrecycle would stay the same.[140] When asked whether the company between July 2015 and January 2016 had made any deliveries to Tyrecycle as per the agreement, Mr Sidebottom could not recall.[141]

85 The evidence shows that prior to December 2016 there were 22 deliveries of tyres to Tyrecycle during approximately seven months. This was despite the agreement allowing delivery of two to three loads per week, and four loads a week from October 2015, up to a maximum of 20,000 (approximately 900 tonnes) tyres.

86 Further, Mr Sidebottom made no enquiries of Tyrecycle before or after the undertaking, despite his evidence that he understood the seriousness of giving the undertaking to the Court. He agreed he was cautioned by the Court about the seriousness of giving the undertaking.[142]

87 Mr Sidebottom agreed in cross-examination that he gave the undertaking to the Court based on the Transpro's four prime movers being available and that this left very little margin for error in terms of mechanical or other failures. He agreed that he probably should have allowed for those contingencies and he apologised to the Court.[143]

88 Mr Sidebottom agreed in cross-examination that, even when Transpro only had three operational prime movers, the company completed seven deliveries to Tyrecycle (one in February 2017 and six from March to August 2017). He said that, despite only having three prime movers, Transpro could manage the deliveries because 'work went quiet and there was a truck that was sitting around so I was able to facilitate that.' He conceded that he did not give this evidence in any of his affidavits.[144]

89 Mr Sidebottom agreed that, in 2015 and 2016, he knew Transpro had previously suffered truck breakdowns. He therefore he knew there was a real possibility of breakdowns in the future.[145] His evidence was that there was a slight margin for error but that he did not believe the equipment would be off the road for such a long time. He said that he had been naïve and apologised for that.[146] He could not recall whether, in 2015 and 2016, the prime movers were off the road for a long time.[147]

90 Mr Sidebottom confirmed that when he gave the December 2016 undertaking it was based on the $20 per tonne estimate negotiated 18 months earlier between Raymond Sidebottom and Tyrecycle. He was asked in cross-examination whether alarm bells rang for him in circumstances where, within two to three weeks of giving the undertaking, he found out that the price was actually $80 per tonne. He replied, 'I was just doing the best I can to try and move as many tyres as I could.'[148]

91 It was put to Mr Sidebottom in cross-examination that, after February 2017, he never contracted Tyrecycle to renegotiate a price for the delivery of the tyres. He replied: 'I believe I was working as hard as I could to do that'.[149] He agreed that he has done nothing since August 2017 to further the delivery of the tyres. When asked if that was the best he could do, he said:

I apologise to the court that I haven't been able to remove more but ... I've done the best I can with the limited funds that the company has ... and the transport it has.[150]

92 In summary, Mr Sidebottom gave the undertaking without contacting Tyrecycle, attempting to renegotiate with Tyrecycle, or allowing for the contingency of any of Transpro's trucks being off the road for a prolonged period of time.[151]

93 An important part of Mr Sidebottom's evidence concerned the recall of the aforementioned loan from Mr Buckingham.

94 Mr Sidebottom said that on 1 September 2017 he received a letter on behalf of Mr Buckingham's estate. Enclosed in the letter was a notice to pay, dated 29 August 2017, the principal sum of $390,000 along with interest and costs totalling $395,708.50. The notice to pay stated that if the company did not pay within seven days the mortgagee would exercise its power of sale.[152] Then, on 28 September 2017, Mr Sidebottom received a letter of demand enclosing a writ and a statement of claim seeking repayment of the Buckingham loan.[153]

95 Mr Sidebottom had instructed the company's broker to source mortgage funding to pay out the Buckingham loan. A letter of offer from a private lender, Pexale Pty Ltd ('Pexale'), was received on 9 October 2017 and accepted on 11 October 2017. The Pexale loan provided finance for the company and Transpro and was secured by mortgages and a personal guarantee from Mr Sidebottom.

(1) Refinance an existing loan secured over 25 Saxton Street (circa $400,000); and

(2) To provide working capital to buy further transport equipment; and

(3) To make improvements to the transport depot situated at 25 Saxton Street, West Numurkah.[154]

The total loan facility was $950,000. Mr Sidebottom's evidence was that only $400,000 was for the purpose of repaying the Buckingham loan. The Pexale loan was settled on 21 December 2017 and the payout of the Buckingham loan, including interest and costs, was $412,345.21.[155]

The process of obtaining finance to repay the Buckingham loan was protracted and complicated. Given the encumbrance of the tyres and the land and the Buckingham loan, prior to repayment of the Buckingham loan I did not believe that the Sidebottom Group was in a position to obtain finance to assist with the removal of them from the land. With the demand for repayment of the Buckingham loan, I had no option but to seek finance for the Sidebottom Group, which I received via the Pexale loan but only because of additional security. The lender viewed the Sidebottom Group land as having dubious value. However, I do not believe that with the Pexale loan in place and the tyres still on the land now, I would be able to obtain any future finance.[156]

Mr Sidebottom said he had foreseen that there would be an issue with the loan and that it would likely be called up by Mr Buckingham's estate.[157]

98 For the following reasons, I consider that the company and Mr Sidebottom's breaches constitute a serious and contumacious disregard of the December 2016 order and undertaking.

99 There is no evidence filed on behalf of the company. This includes evidence as to the company's financial position.

100 In December 2016, when Mr Sidebottom gave the undertaking:

(a) He understood the seriousness of giving an undertaking to the Court;

(b) a VCAT enforcement order against the company had already been made on 2 July 2014, requiring removal of the tyres and other materials by 22 January 2015;[158]

(c) this Court had made orders on 20 October 2015, 10 March 2016, 17 June 2016 and 10 December 2016 putting into place timetables for the company to remove the tyres and other materials;

(d) a contempt application had been made against the company and heard in August 2016, in which I found the company was not in contempt but stated in my judgment:

Regrettably, the tyres remain on the land and continue to pose a serious threat to the community. This is particularly troubling given the upcoming spring and summer. There is still no realistic proposal for the removal of the tyres. Sidebottom Group's conduct is clearly unsatisfactory. There is an enforcement order which has lapsed. The parties must now reformulate the enforcement order ... Any further breaches by Sidebottom Group may culminate in a fresh contempt application against Sidebottom.

As noted in Australian Competition and Consumer Commission v Hughes, 'defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts'.[159]

(e) Mr Sidebottom had been (and remains) Transpro's operational manager since May 2015, responsible for Transpro's day to day operation;

(f) Mr Sidebottom had been (and remains) the company's sole director since May 2015, assuming operational responsibility for the company since that time;[160]

(g) Mr Sidebottom had legal representation;

(h) Mr Sidebottom gave the undertaking without making any enquiry as to the terms upon which Tyrecycle would receive the tyres, its capacity to receive the tyres, or the timeframe in which it could receive the tyres;

(i) Mr Sidebottom knew the order could only be complied with if Transpro had four operational prime movers, and of its fleet of five prime movers, only four were operational in December 2016;

(j) as director of the company, Mr Sidebottom was aware of the company's liabilities and capacity to meet those liabilities, including the Buckingham loan; and

(k) Mr Sidebottom's personal financial circumstances were that he lived on the land rent-free and was paid $300 per week by Transpro.

101 By 15 April 2017 Mr Sidebottom and the company had breached order 1(a) of the December 2016 order and the undertaking. At this time, and as early as February 2017, only two months after the December 2016 order, Mr Sidebottom knew that two of the critical factors relied upon for compliance with the December 2016 order and undertaking were not available. That is, the rate at which Tyrecycle was prepared to receive tyres was now $70 per tonne (not $20 per tonne) and Transpro only had three operational prime movers.

102 Prior to the first summons being filed in January 2018, Mr Sidebottom did not contact the Court or the Council to inform them of the problems with compliance, or to seek a variation of the December 2016 order.

103 I do not accept Mr Sidebottom's evidence that he 'honestly' believed that he could comply with the undertaking at the time it was given.

104 By December 2016, Mr Sidebottom did not have had any doubt as to the seriousness of his undertaking and the possible ramifications of breaching the undertaking. Given Mr Sidebottom's experience as Transpro's operational manager, he knew that there was a very significant risk that one or more of Transpro's prime movers may be off the road and unavailable to assist the company with the delivery of the tyres.

Mr Sidebottom knew the full history of Transpro's truck fleet and knew that it only had one truck at its disposal for the company. He made no effort whatsoever to ensure the terms of the agreement with Tyrecycle, made in July/August 2015, were still acceptable and available to ensure compliance with the December 2016 order and the undertaking.

105 I consider it fanciful for Mr Sidebottom to now assert that he honestly believed that he could comply with the undertaking and, flowing from that, that the company could comply with the December 2016 order. Even giving Mr Sidebottom the benefit of doubt that he was not being dishonest when he gave the undertaking, his conduct was reckless, irresponsible and demonstrated a complete disregard for the seriousness of the undertaking and the December 2016 order.

106 The scale of the company's non-compliance with the VCAT enforcement order and the Court's orders requiring the removal of the tyres is extremely troubling. For

Mr Sidebottom to now say that he honestly believed he could comply with the undertaking, that he was naïve and that he was '100 per cent sure' of compliance, must be met with scepticism if not disbelief.

107 I did not find Mr Sidebottom a credible witness. He was unresponsive to many questions put to him in cross-examination and lacked candour. When repeatedly asked why he did not contact Tyrecycle before giving the undertaking, his only response was to apologise and say that, with the benefit of hindsight, he should have done so. Tyrecycle has always had the capacity to process the tyres subject to agreeable terms.

108 The Buckingham loan was paid by the company with a loan it obtained from Pexale. The loan was secured on the basis of a personal guarantee by Mr Sidebottom. There is no evidence as to the particulars of this guarantee. Suffice it to say, when confronted with the notice to pay and the writ in relation to the Buckingham loan, the company was able to find funds to pay the debt. Yet, since the VCAT enforcement order of July 2014, Mr Sidebottom has maintained that the company has had 'limited funds' and so has been unable to comply.

109 Mr Sidebottom's contemptuous conduct has caused a public injury. Although the Council's objective has been to coerce compliance with the December 2016 order, there is a public interest aspect to this proceeding in that it vindicates the Court's authority. Protecting and upholding the administration of justice requires compliance with all orders and undertakings; this is so whether or not compliance also serves individual or private interests.[161]

110 Mr Sidebottom's conduct amounts to a perverse refusal to accept the jurisdiction of the Court. His persistent and blatant contempt, as an officer of the company, for the Council's rights and the Court's authority must not be underestimated. Since 2014 to date a mere seven per cent of the tyres have been removed from the land.[162]

111 Mr Sidebottom wants the Court to accept that, consistent with the December 2016 order, the company had the capacity to comply with the timetable. Yet he had no basis for assuming Tyrecycle would continue to charge $20 per tonne for processing the nearly 5000 tonnes of tyres still on the land. The $20 per tonne figure was based on a July 2015 agreement between the company and Tyrecycle. That agreement concerned a discrete amount of tyres and was, by December 2016, a year and a half old.

112 I am therefore satisfied beyond reasonable doubt that the contempts in this proceeding were contumacious. Given Mr Sidebottom's experience as Transpro's operational manager, his knowledge of the company's financial position and its July 2015 agreement with Tyrecycle, he must have known there was no reasonable basis for giving the undertaking. His evidence was that the Council would not consent to a new timetable unless he gave the undertaking. Mr Sidebottom was therefore prepared to say and do whatever was necessary to gain more time. He knowingly gave the undertaking when there was no real prospect of compliance.

113 For the avoidance of doubt, before I turn to the charges, I should state that I reject Mr Sidebottom's submissions that the circumstances of this case give rise to a risk of 'double punishment'.[163] The facts in Pearce are distinguishable. There the High Court was concerned with the question of whether an offender can be punished twice for two offences that contain common elements.[164] Here the company and Mr Sidebottom have been adjudged guilty of one course of contemptuous conduct. It is not the offence, or the elements of the offence, that overlap; rather, it is Mr Sidebottom and the company, for the simple reason that the former is an officer of the latter. As I have said, Mr Sidebottom was at all material times the controlling 'mind of the company', which means that any contempt of the company falls at his feet.[165] Further, he gave a personal undertaking to ensure compliance, and axiomatically any breach of such an undertaking can only fall at his feet.[166]

114 In any event, in line with accepted sentencing principles, I will impose 'individual sentences that, so far as is practicable, reflect the objective gravity of each offence.'[167] I have also had regard to totality in that the sentences imposed on charges one and two combine to produce a 'total effective sentence which, so far as is practicable, reflects the totality of the criminality embraced by the totality of the charged offences.'[168]

115 The company was not represented at the penalty hearing. No specific or direct apology was made on its behalf. Having said that, I can infer that Mr Sidebottom's evidence is directly relevant to the company, given he is the sole director. Therefore, I will infer that any apology Mr Sidebottom gave is made on behalf of the company.

116 I consider the company's disobedience of the December 2016 order to be contumacious. In my view, the requirements of specific and general deterrence warrant the imposition of a substantial fine. The company's breach of the December 2016 order is continuing.

117 The company consented to the December 2016 order and knew that it was most unlikely it could comply. The Court must fashion a penalty which makes it clear to the company, and to the broader commercial market, that the penalty for breaching a court order cannot be regarded as an acceptable cost of doing business.

118 The company pleaded guilty to charge one and there is no agreement about the range of any fine to be imposed. Nor could there be, having regard to Barbaro v The Queen[169] and ASIC v Ingleby.[170]

119 Applying the principles of totality, proportionality, parsimony and parity in assessing the appropriate amount of the fine, I impose a fine of $50,000 for the company's contempt in relation to charge one.

120 Mr Sidebottom has engaged in acts of deliberate defiance of judicial authority of the most serious kind. I have already set out the principles applying to sentencing for contempt.[171]

121 Concerning personal circumstances, no prior convictions have been alleged. No character evidence has been put before the Court on Mr Sidebottom's behalf. Nevertheless, I am aware that Mr Sidebottom is 34 years old, has a partner, lives on the land, is the company's sole director, Transpro's operational manager, and receives wages of $300 per week.

122 Mr Sidebottom says the combined stress of dealing with Tyrecycle's increased rates, having to find a way to repay the Buckingham loan and juggling Transpro's failing trucks has made him physically ill and caused anxiety and emotional distress. There is, however, no medical evidence to support this assertion. Nevertheless, I accept that this proceeding and the ongoing issue of the removal of tyres would be a source of significant stress.

123 Mr Sidebottom concedes that, as director of the company and having given an undertaking to the Court, he bears responsibility for the removal of the tyres. He understood that breaching the undertaking was a serious matter that could lead to the imposition of a significant penalty. His breach by its very nature interferes with the due administration of justice.

124 Mr Sidebottom first apologised for his contempt in his 12 July 2018 affidavit. He repeatedly apologised in the course of his oral evidence. He did not adduce any evidence to show how the company could have the tyres removed. He understands the Council wants the tyres removed as soon as possible but considers it impossible to do so within 90 days of sentence. He considers it feasible to have them removed within 12 months of sentence.

125 Mr Sidebottom did not explain why the removal could only be completed within 12 months of sentence. The circumstances now are objectively no different to when he gave the undertaking. Yet he has gone from being '100 per cent sure' about compliance to not being sure at all about the company's ability to have them removed within 12 months of sentence.

126 I consider Mr Sidebottom's apology disingenuous. He maintained until very recently that he and the company had not committed any contempt. Given his past breaches, and the fact a mere seven per cent of the tyres have been removed in four years, I do not accept that Mr Sidebottom is contrite and remorseful. He tried to minimise his culpability by blaming former officers of the company for bringing the tyres onto the land. He also tried to blame Tyrecycle by suggesting that it was taking advantage of the company's predicament.[172]

127 Mr Sidebottom's breach of the undertaking commenced within months of the December 2016 order. Ms Miller's unchallenged evidence confirms that by 15 April 2017, order 1(a) of the December 2016 order had been breached and accordingly the undertaking had been breached. The breaches continue to the present day.

128 I reject Mr Sidebottom's submission that only a modest fine should be imposed given his financial circumstances. No evidence was put before the Court. And the company was able to pay off the Buckingham loan. Mr Sidebottom gave a personal guarantee in order to secure the loan from Pexale.

129 When Mr Sidebottom gave the undertaking he was fully aware of the company's financial position. There has been no change in that position. Yet he now seeks to rely on limited finances as a reason for the non-compliance. He also relies on it in relation to the penalty that he submits should be imposed.

130 The evidence as to whether Mr Sidebottom or the company have any capacity to pay a fine is equivocal. On the one hand, Mr Sidebottom wants the Court to accept he is financially struggling and that the company would be insolvent but for the fact it is not trading.[173] On the other hand, the evidence demonstrates that the company was able to secure finance to pay the Buckingham loan. In these circumstances, the imposition of a fine on Mr Sidebottom or the company would be insufficient to vindicate the authority of the Court in respect of the contempt.

131 Both general and specific deterrence are relevant matters in this case. In relation to general deterrence, it would be destructive of the rule of law if the idea spread that compliance with court orders or an undertaking to a court were optional.[174] As to Mr Sidebottom and the company, any penalty must be considered in the context of the history of this proceeding and the company's failure to comply with both the past VCAT enforcement order and this Court's orders issued over a four year period.

132 Penalties for contempt are, in a sense, at large.[175] However, under r 75.11 of the Rules, I have the power to punish for contempt by committal to prison, or fine, or both. Further, I can make an order for punishment on terms, including the suspension of punishment.

133 Specific deterrence looms large in this case. I accept that the objective seriousness of the contempt remains the necessary central focus. However, I regard the contempts by Mr Sidebottom and the company as exceptionally serious, in part because they were highly visible. An article in The Age dated 26 August 2017 reports:

Town of Numurkah Tires of Decade-Old Tyre Dump

Numurkah, population 4500, would rather be known for its footy team, bakery or gardens. It most definitely does not want to be known as the home of Victoria's second largest tyre dump. ...

The Sidebottom Group, which changed hands from Raymond to his son, Shanan, and the now deregistered Australian Rubber Manufacturers (also last headed by Shanan) started bringing in tyres.

By 2013 - and several extensions of the permit later - the land still hadn't been developed, the tyres had piled up and the Country Fire Authority started to get worried.

Less than a month after the CFA told the council about their concerns, fire broke out. The fire, which was deemed suspicious, sent toxic, black smoke directly up in the air. It was sheer luck it wasn't windy, firefighters said at the time, as it would have created a serious health hazard and potentially the evacuation of the town. ...

The council took the Sidebottom Group and ARM to VCAT in 2013. Two years later, the stockpile still hadn't been reduced. So they went to the Supreme Court. That didn't work so the council went back to court again to ask the court to find the companies - Sidebottom Group and ARM - in contempt. The application failed, but Justice Rita Zammit noted the stockpile posed a serious threat to the community. ...

Numurkah would prefer to be known for the roses and lawns the townsfolk take so much pride in ... 'but it won't be long until we're better known for our tyre dump'.[176]

The penalty in this case must therefore serve three purposes: specific deterrence, general deterrence, and compelling obedience to, and compliance with, the Court's orders.

134 I am of the view that, in the circumstances of Mr Sidebottom's contempt, a term of imprisonment is warranted. I convict and sentence Mr Shanan James Sidebottom to a term of imprisonment for four months for the contempt constituted by breach of the December 2016 order and the undertaking that he gave personally to ensure the company's compliance.

135 I am not persuaded that the company will comply with any further enforcement order that I may make. And regrettably, given Mr Sidebottom has already given this Court an undertaking and breached it, it would not be appropriate to accept an undertaking from him. Hence there is no reason for this Court to exercise its power to punish on terms. In any event, I do not consider that a suspended sentence would be appropriate; it would not be proportionate to the objective gravity of the contempt nor meet the sentencing goals of specific and general deterrence.[177]

136 While I take into account Mr Sidebottom's personal circumstances, I also take into account the nature and circumstances of the contempts and their actual consequences. As I have said, the contempts had a significant effect on the administration of justice. I consider Mr Sidebottom culpable. There is a need to deter Mr Sidebottom and others from engaging in such conduct in the future. Mr Sidebottom has not displayed genuine contrition. I have accorded his apologies little weight given their timing and the context in which they were proffered.

137 I have considered all possible available penalties, including suspended sentences and fines.

138 I consider Mr Sidebottom's contempt was very serious. It is important that persons that give an undertaking to a court are aware that they may face serious consequences if they breach them. The only appropriate penalty is committal to prison. I do not consider that any other penalty would sufficiently reflect the seriousness of Mr Sidebottom's contempt.

139 I have not heard any submissions from the parties in relation to costs. Having said that, I make the following observations. Costs are in the discretion of the Court and that discretion is unfettered.[178]

140 As contempt proceedings are conducted in the civil jurisdiction, as the High Court concluded in Hinch,[179] they attract the ordinary rule that costs follow the event. There is, moreover, no rule of law that says the Court must make a costs order on an indemnity basis in a proceeding for contempt.[180] However, as a matter of practice, it is common in contempt proceedings (in Victoria at least) for costs to be awarded against a contemnor on an indemnity basis.[181]

Having regard to the introduction of r 63.30.1 of the Rules, a matter not specifically adverted to in the authorities that I have referred to, I consider taxation of costs on an indemnity basis is proper in the circumstances of contempt proceedings. I would not expect that there would be any, or any significant, difference between taxation on a solicitor client basis or an indemnity basis with a responsible litigant such as this plaintiff. I will order that the defendants pay the plaintiff's costs of the contempt proceeding, including any reserved costs, on an indemnity basis.[182]

142 It seems to me, save for hearing submissions, that the company and Mr Sidebottom should pay the Council's costs of the proceeding, including any reserved costs, on an indemnity basis.

143 The orders that I will make, save for any cost orders, are:

1 Sidebottom Group Pty Ltd ('the company') is adjudged guilty of contempt of court in that, in breach of the order of the Honourable Justice Zammit made on 14 December 2016 and authenticated on 22 December 2016 ('the December 2016 order'), it failed to comply with paragraphs 1(a), 1(b), 1(c) and 1(d) of the December 2016 order; and the company is convicted and fined $50,000 for that criminal contempt.

2. Shanan James Sidebottom ('Mr Sidebottom') is adjudged guilty of contempt of court by reason of:

a. the failure of the company to comply with paragraphs 1(a), 1(b), 1(c) and 1(d) of the December 2016 order; and

b. his failure, in contravention of the undertaking he gave to the Court (the terms of which are set out in the December 2016 order), to personally ensure that the company complied with paragraphs 1(a), 1(b), 1(c) and 1(d) of the December 2016 order;

and Mr Sidebottom is convicted and sentenced to a term of four months' imprisonment for that criminal contempt.

Annexure A: Sentences for contumacious contempt

ACCC v Levi (No 3) [2008] FCA 1586

Ten months' imprisonment, six months suspended on terms

Respondent breached a court order restraining him from selling businesses without providing the purchaser with relevant information

Prior convictions for dishonesty; contempts were serious and numerous; contempts occurred very soon after the imposition of the court order; respondent's belligerent and aggressive attitude; a late guilty plea; an apology to the victims.

ACCC v Goldstar Corporation Pty Ltd [1999] FCA 585

Six months' imprisonment for the director of respondent company

Respondent company and director breached a court order restricting them from carrying out misleading business practices

Both company and director had previously been convicted of contempt for the same conduct and director had been sentenced to two months imprisonment (previously stayed); contempts were numerous; nature of the contempts indicated the respondent director did not take the court order seriously.

APRA v Siminton (No 10) [2007] FCA 1814

Respondent breached a court order that restricted him from dealing with certain monies

Prior imprisonment for contempt; contempts were 'deliberate, calculated and disguised'; no apology offered by respondent.

ASIC v Reid (No 2) [2006] FCA 700

Respondent breached a court order and undertaking subsequently given to the Court restricting him from managing corporations

Previous convictions and imprisonment for the same contemptuous conduct; respondent's lack of remorse or insight; previous period spent in custody.

Jones v Toben (No 2) [2009] FCA 477

Respondent breached a court order and an undertaking to the Court by publishing certain material on the internet

Contempts were numerous; some occurred on the day of the penalty hearing; no explanation given for the respondent's behaviour; although an apology was given, the respondent did not display real remorse.

ASIC v Michalik [2004] NSWSC 1259; (2004) 52 ACSR 115

Defendants breached a court order requiring them to surrender their passports and refrain from attempting to leave New South Wales

Contempts were 'serious, flagrant and calculated'; defendants were motivated by a desire to avoid the consequences of proceedings initiated against them; the defendants apologised but the Court could not determine the sincerity of the apologies.

Ronowska v Kus (No 2) [2012] NSWSC 817; (2012) 221 A Crim R 261

Second respondent breached a court order requiring him to pay the proceeds of a sale into a controlled monies account and subsequently gave false evidence to the Court about the transaction

Contempts were serious and flagrant, designed to preserve the financial position of the second respondent.

Vaysman v Deckers Outdoor Corporation Inc [2014] FCAFC 60; (2014) 222 FCR 387

2 years and three months' imprisonment imposed on appeal, reduced from three years imposed by trial judge

Applicant breached court orders restraining him from selling counterfeit footwear.

Deliberate and serious contempts carried out over a long period of time; contempts were motivated by a desire for financial gain; although the applicant apologised to the Court, he was not considered genuinely remorseful.

Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202

Second respondent breached court orders restricting him from making imputations against other parties to litigation and also attempted to bring improper pressure to bear on other parties

Contempts were very public; second respondent attempted to circumvent court orders by slightly modifying his behaviour, rather than desisting; contempts interfered with the due administration of justice.

[1] The second respondent, Australian Rubber Manufacturers Pty Ltd, is a deregistered company and is not relevant for present purposes. It was deregistered by the Australian Securities and Investment Commission on 16 August 2015.

[2] Moira Shire Council v Sidebottom Group Pty Ltd [2015] VSC 577 ('Sidebottom (No 1)').

[3] Moira Shire Council v Sidebottom Group Pty Ltd [2016] VSC 546 ('Sidebottom (No 2)').

[4] Transcript of Proceedings, Sidebottom (No 2) (Supreme Court of Victoria, Zammit J, 9 August 2016) 62.18-62.24.

[5] Pursuant to s 122 of the Victorian Civil and Administrative Tribunal Act 1998.

[6] Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121, 127 ('Hamilton').

[7] Sidebottom (No 2) [2016] VSC 546 [160]-[162].

[8] Transcript of Proceedings, Moira Shire Council v Sidebottom Group Pty Ltd (Supreme Court of Victoria, Zammit J, 14 December 2016) 15.18-15.30.

[9] Affidavit of Shanan James Sidebottom sworn 23 April 2018 [11], [14]. Affidavit of Clinton Drew Habner affirmed 3 May 2018 [16], [18], [20]-[22]; Exhibit CDH-1.

[10] Affidavit of Jacqueline Frances Miller sworn 28 November 2017, exhibit JFM-18.

[11] Affidavit of Jacqueline Frances Miller sworn 28 November 2017, exhibit JFM-21.

[12] Affidavit of Phillip James Kotsanis sworn 4 May 2018 [13].

[13] Affidavit of Shanan James Sidebottom sworn 23 April 2018, exhibits SS-14, SS-18.

[14] [2017] VSC 738.

[15] CFMEU v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; (2014) 47 VR 527, 563 [135] ('CFMEU v Grocon').

[17] See generally AMIEU v Mudginberri Station Pty Ltd (1986) 191 CLR 98 ('Mudginberri'); Witham v Holloway (1995) 183 CLR 525 ('Witham').

[18] [2015] HCA 21; (2015) 256 CLR 375, 395 [65] (citations omitted) (emphasis added) ('CFMEU v Boral'). See also Re Colina; Ex Parte Torney [1999] HCA 57; (1999) 200 CLR 386, 428 [109] (Hayne J); Hinch v A-G (Vic) (No 2) [1987] HCA 56; (1987) 164 CLR 15, 89 (Mason CJ, Wilson, Deane, Toohey and Gaudron JJ) ('Hinch').

[19] CFMEU v Boral [2015] HCA 21; (2015) 256 CLR 375, 396 [66].

[20] Ibid 396 [67] (citations omitted).

[21] Witham (1995) 183 CLR 525. See also Hinch [1987] HCA 56; (1987) 164 CLR 15, 49 (Deane J).

[22] [2014] VSCA 261; (2014) 47 VR 527, 638 [498].

[23] Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483, 497-8 (Windeyer J) ('Morgan') citing Scott v Scott [1913] UKHL 2; [1913] AC 417, 456-7 (Lord Atkinson).

[24] Grocon v CFMEU (No 2) [2014] VSC 134 [104] (Cavanough J). See also Morgan [1965] HCA 21; (1965) 112 CLR 483, 489 (Barwick CJ); Witham (1995) 183 CLR 525, 530 (Brennan, Deane, Toohey and Gaudron JJ).

[25] Mudginberri [1986] HCA 46; (1986) 161 CLR 98, 106, 108 (Gibbs CJ, Mason, Wilson and Deane JJ).

[26] See, eg, R v Pacini [1956] VicLawRp 84; [1956] VLR 544, 546-7 (Lowe J); Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 (Biscoe J) ('Mosman'); CFMEU v Grocon [2014] VSCA 261; (2014) 47 VR 527, 590 [264], 593-7 [279]-[294]; National Australia Bank Ltd v Juric [2001] VSC 375 [158] ('Juric'); Chan v Chen (No 3) [2007] VSC 52; Deputy Commissioner of Taxation v Gashi (No 3) [2011] VSC 448; (2011) 85 ATR 262 ('Gashi (No 3)'); Lade & Co Pty Ltd v Black [2006] QCA 294; [2006] 2 Qd R 531, 542 [26] (Jerrard JA) ('Lade'); Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16 [34]; ASIC v Matthews [2009] NSWSC 77; (2009) 69 ACSR 559; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 [73]-[74] ('Pang').

[27] [1986] HCA 46; (1986) 161 CLR 98, 110 (Gibbs CJ, Mason, Wilson and Deane JJ).

[28] Ibid 108. See also Mosman [2009] NSWLEC 92; (2009) 167 LGERA 91.

[29] See, eg, Langer v AEC (No 2) (1996) 59 FCR 463; Jones v ACCC [2010] FCAFC 136; (2010) 189 FCR 390, 409 [36] (Keane CJ, Dowsett and Reeves JJ); Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596, 619 [54]-[55] (Gray J), 640 [178] (Bromberg J) ('Vaysman (No 1)').

[30] R v Pantorno [1988] VicRp 28; [1988] VR 195; Sabapathee v The State [1999] UKPC 31; [1999] 1 WLR 1836, 1847; Juric [2001] VSC 375; R v Satalich [2001] VSCA 106; (2001) 3 VR 231; Pico Holdings Inc v Voss [2002] VSC 319; Mosman [2009] NSWLEC 92; (2009) 167 LGERA 91, 114 [85]; CFMEU v Grocon [2014] VSCA 261; (2014) 47 VR 527, 598 [299].

[31] See CFMEU v Grocon [2014] VSCA 261; (2014) 47 VR 527, 585-6 [241] and the authorities cited therein.

[32] Ibid 598-9 [302]-[303]. See also CC Containers Pty Ltd v Lee (No 9) [2015] VSC 595 [24]-[26] (Ginnane J).

[33] CFMEU v Grocon [2014] VSCA 261; (2014) 47 VR 527, 599 [306].

[34] See generally Broken Hill Pty Co Ltd v Dagi [1996] VicRp 62; [1996] 2 VR 117, 126-7 (Winneke P).

[35] An analogous summons is discussed in Pang [2011] NSWCA 69.

[36] Gashi (No 3) [2011] VSC 448; (2011) 85 ATR 262, 268-9 [10].

[37] See, eg, Hamilton [1988] HCA 65; (1988) 166 CLR 121; A-G for Tuvalu v Philatelic Distribution Corporation Ltd [1990] 1 WLR 926 ('Philatelic Distribution Corporation'); ACCC v Goldstar Corporation Pty Ltd [1999] FCA 585 ('Goldstar Corporation'); Evenco Pty Ltd v Australian Building Construction Employees & Builders Labourers Federation (Qld Branch) [2000] QCA 108; [2001] 2 Qd R 118; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 ('Advan'); Scott v Evia Pty Ltd [2007] VSC 15; TZ Ltd v ZMS Investments Pty Ltd [2009] NSWSC 1465; Gashi (No 3) [2011] VSC 448; (2011) 85 ATR 262; Vaysman v Deckers Outdoor Corporation Inc [2014] FCAFC 60; (2014) 222 FCR 387 ('Vaysman (No 2)'); Mahaffy v Mahaffy [2018] NSWCA 42 ('Mahaffy'); Hurd v Zomojo Pty Ltd [2015] FCAFC 148 ('Hurd'); Registrar of the Supreme Court (NT) v Nationwide News Pty Ltd [2018] NTSC 22.

[38] [2014] VSCA 75; (2014) 308 ALR 615, 682 [316] citing Motel Marine Pty Ltd v IAC (Finance) Pty Ltd [1964] HCA 7; (1964) 110 CLR 9, 14.

[39] See Lade [2006] QCA 294; [2006] 2 Qd R 531, 548 [57] (Keane JA).

[40] Goldstar Corporation [1999] FCA 585 [41] (Kiefel J).

[41] Ibid [41] quoting from Philatelic Distribution Corporation [1990] 1 WLR 926, 938. See also Hurd [2015] FCAFC 148; Mahaffy [2018] NSWCA 42 [121]-[124] (Simpson JA, Payne JA and Emmett AJA relevantly agreeing).

[42] [2011] VSC 448; (2011) 85 ATR 262.

[44] [2010] HCA 45; (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) citing DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 273 ALR 324, 388-9 [304] (Barr AJ).

[45] [2011] VSC 448; (2011) 85 ATR 262.

[47] [2008] FCA 1586.

[49] [1999] FCA 585.

[51] [2007] FCA 1814.

[54] [2006] FCA 700.

[55] [2009] FCA 477.

[58] [2004] NSWSC 1259; (2004) 52 ACSR 115.

[60] [2012] NSWSC 817; (2012) 221 A Crim R 261.

[62] [2014] FCAFC 60; (2014) 222 FCR 387 (Dowsett, Siopis and Besanko JJ).

[63] See Deckers Outdoor Corporation Inc v Farley (No 6) [2010] FCA 391.

[64] Vaysman (No 2) [2014] FCAFC 60; (2014) 222 FCR 387, 427 [144] (Besanko J).

[65] [2017] FCA 202.

[68] Outline of Sentencing Submissions of Moira Shire Council dated 27 June 2018 [8].

[74] Ibid [29]; Transcript of Proceedings, Moira Shire Council v Sidebottom Group Pty Ltd (No 3) (Supreme Court of Victoria, Zammit J, 19 July 2018) 103.24-104.11 ('T').

[77] Outline of Sentencing Submissions of Moira Shire Council dated 27 June 2018 [6].

[80] T76.9-76.11; T77.2; T78.26; T81.29-82.3.

[81] Outline of Sentencing Submissions of Mr Shanan James Sidebottom dated 12 July 2018 [18]-[19].

[91] [1998] HCA 57; (1998) 194 CLR 610, 623 [40] ('Pearce').

[92] T87.21-T88.12. In support of this proposition, counsel referred the Court to Minister for Environment and Heritage v Greentree (No 3) [2004] FCA 1317; (2004) 136 LGERA 89, 108 [77]-[78], and Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) [2002] FCA 559; (2002) 190 ALR 169, 182 [45].

[94] Outline of Sentencing Submissions of Mr Shanan James Sidebottom, 12 July 2018, [35].

[97] [2002] VSC 319 [54] (citations omitted).

[98] Affidavits of Jacqueline Frances Miller sworn 28 November 2017 [12], [14], [21]; 20 December 2017 [13]; 12 February 2018 [14]; 24 April 2018 [15].

[99] Affidavits of Jacqueline Frances Miller sworn on 28 November 2017 [21]; 20 December 2017 [13]; 12 February 2018 [14]; 24 April 2018 [15].

[100] Affidavits of Jacqueline Frances Miller sworn 20 December 2017 [13]; 12 February 2018 [14]; 24 April 2018 [15].

[101] Affidavit of Jacqueline Frances Miller sworn 20 April 2018 [15].

[102] Affidavit of Clinton Drew Habner sworn 3 May 2018 [6].

[103] Ibid [8]. As to ARM, the second respondent, see footnote 1 above.

[107] Affidavit of Shanan James Sidebottom sworn 23 April 2018, exhibit SS-23.

[108] Affidavit of Clinton Drew Habner sworn 3 May 2018 [19].

[109] Ibid [21], [22], exhibit CDH-1.

[111] Ibid [24]; Affidavit of Shanan James Sidebottom sworn 23 April 2018, exhibit SS-13.

[112] Affidavit of Clinton Drew Habner sworn 3 May 2018 [28].

[114] Affidavit of Shanan James Sidebottom sworn 23 April 2018 [2].

[133] Affidavit of Shanan James Sidebottom sworn 12 July 2018 [4]-[5].

[135] T20.12−20.14; T31.6−31.7; T41.14−41.26, T42.20−42.27; T43.9−43.13; T44.31−45.3; T55.3−55.5.

[137] Affidavit of Clinton Drew Habner affirmed 3 May 2018, exhibit CDH-1.

[138] Affidavit of Shanan James Sidebottom sworn 23 April 2018, exhibit SS-5.

[151] T49.3−49.10; T54.22−54.23; T55.3−55.6; T56.17−56.18.

[152] Affidavit of Shanan James Sidebottom sworn 23 April 2018, exhibit SS-17.

[155] Ibid [45], exhibit SS-17, exhibit SS-21.

[158] Sidebottom (No 2) [2016] VSC 546 [15].

[159] Ibid [163]-[164] (citations omitted).

[161] Witham (1995) 183 CLR 525, 532-3.

[162] This is an approximation based on available data.

[164] Pearce [1998] HCA 57; (1998) 194 CLR 610, 615 [16] (McHugh, Hayne and Callinan JJ).

[165] Hamilton [1988] HCA 65; (1988) 166 CLR 121, 127.

[166] Nor is this a situation where a contemnor also faces civil or criminal punishment in another related proceeding. Or where a private party obtains the relief it seeks despite quite apart from contempt proceedings. See Vaysman (No 2) [2014] FCAFC 60; (2014) 222 FCR 387, 395-6 [15]-[21] (Dowsett J).

[167] Mulligan (a Pseudonym) v The Queen [2017] VSCA 94 [132] (Redlich, Weinberg and Priest JJA).

[168] Ibid. See also Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62-3 (Wilson, Deane, Toohey and Gaudron JJ).

[169] (2014) 253 CLR 58.

[170] [2013] VSCA 49; (2013) 39 VR 554.

[174] Gashi (No 3) [2011] VSC 448; (2011) 85 ATR 262, 269 [15].

[175] Grocon v CFMEU (No 2) [2014] VSC 134 [198].

[176] Tammy Mills, 'Town of Numurkah Tires of Decade-Old Tyre Dump', The Age, 26 August 2017.

[177] Sentencing Act 1991 s 5(1)(b).

[179] [1987] HCA 56; (1987) 164 CLR 15. See also Mahaffy [2018] NSWCA 42 [247] (Payne JA).

[180] Mahaffy [2018] NSWCA 42 [247] (Payne JA) citing McIntyre v Perkes (1998) 15 NSWLR 408, 428 (Samuels JA, Mahoney JA agreeing).

[181] Gashi (No 3) [2011] VSC 448; (2011) 85 ATR 262, 270-1 [20]; Juric [2001] VSC 375 [67]-[70]; Advan [2003] VSC 201 [120]; Scott [2007] VSC 15 [34]-[38].

[182] Ibid [21] (citations omitted).