Bathurst Real Estate Pty Ltd v Fairbrother

The witnesses

1. There were two substantive witnesses of fact for BRE: its director and licensee in charge, Mr Michael Whittaker, and Mr Michael Burrough, an expert in social media and digital advertising.
2. Mr Whittaker was not cross-examined. His evidence primarily went to how the Publications were discovered and what they included. However, as shall be discussed further below, there were no screenshots in evidence which actually showed the Hashtag being used with any of the Publications.
3. Mr Burrough gave evidence about how hashtags were used on Facebook and Instagram. While he was cross-examined, there was no issue taken with either his expertise or his description of how hashtags were created and what they did.
4. Fairbrother and Cleary did not give evidence.
5. The only witness for the defendants was Mr Scott Michaelson, a director of Smile. He gave evidence about the services offered by Smile to CFP as a franchisee and what he and others within Smile knew about the Undertaking. While he was cross-examined, his credit was not put in issue. I have no doubt he was giving his evidence honestly and to the best of his ability. One matter which will be mentioned again below is that Mr Michaelson was giving his evidence remotely (the entire hearing was remote) and while suffering from Covid. He did not appear well and also had a poor connection which, he explained and I accept, meant he could clearly hear the Court but not so clearly hear counsel.
6. Before leaving the topic of witnesses, I should record that BRE also sought to read the affidavit of one of its solicitors, Ms Nicole Town. Her affidavit primarily attached screenshots of CFP property advertisements on Mr Cleary's personal Facebook page. It was not suggested that any of these were in contempt of the Undertaking. It appears they were sought to be relied upon to found an attack on Mr Cleary's credit in anticipation of an affidavit of Mr Cleary that had been served but was not read. The Court rejected Ms Towne's affidavit subject to BRE's right to seek to retender the evidence if Mr Ireland QC later sought to advance a proposition he had disavowed in opening that part of his clients' defence would be Cleary's and Fairbrother's lack of familiarity with Facebook and Instagram.
7. In closing written submissions, Mr Thangaraj SC sought to retender Ms Town's affidavit because Mr Michaelson's entire affidavit had been read, including reference to Ms Flor Victoriano, an employee of Mr Michaelson. The screenshots from Mr Cleary's Facebook page were not put to Mr Michaelson in cross-examination and nothing was raised in closing by Mr Ireland QC that would cause the Court to revisit its earlier ruling. Ms Town's affidavit remains irrelevant and the renewed application for its tender is rejected.

The facts - generally

1. In this section I will set out the Court's findings of fact. None of what the Court finds to be the dispositive facts was ultimately the subject of serious dispute.
2. Fairbrother and Cleary resigned their employment with BRE on 18 March 2019 to operate their own real estate agency through CFP.
3. On 8 April 2019, BRE commenced proceedings by summons in this Division against Fairbrother and Cleary (the Original Proceedings).
4. The summons included these prayers for final relief against Mr Fairbrother (mirrored in the interlocutory relief that was first sought, and with identical interlocutory and final relief against Mr Cleary): 13 An order that the First Defendant be restrained during the period up to and including 17 December 2019 or such other period as this Honourable Court considers fit, from: … (f) [sic] soliciting, attempting to solicit (via Social Media or otherwise), or accepting any instructions to perform real estate agent services for any Client; (g) carrying on or being engaged, concerned, interested directly or indirectly whether as a shareholder, director, employee, partner, joint venture participant, principal, agent, trustee, unitholder or otherwise, in carrying on any business for a Competitor; (h) amending or updating the First Defendant's profile on any Social Media Platform to directly or indirectly reference, name or describe any Competitor as a business in which the First Defendant has been, or may be, engaged, concerned, interested directly or indirectly whether as shareholder, director, employee, partner, joint venture participant, principal, agent, trustee, unitholder or otherwise. (i) creating any new profile or new account on any Social Media program and initiating or accepting any connection (however as may be described on the specific Social Media program) to or from any employee, agent, principal, director, contractor or shareholder of a Client. (j) encouraging, condoning or enticing any other person or entity, in which the First Defendant is interested or by which the First Defendant is engaged, to engage in conduct which, if the First Defendant engaged in such conduct personally, would cause the First Defendant to breach (a) to (d) above. For the purpose of this Order, the terms Client, Competitor, Social Media and Social Media Platform shall have the same meaning as defined in the contract of employment dated 6 August 2015 entered into between the Plaintiff and the First Defendant and annexed to the Affidavit of Michael Whittaker sworn 8 April 2019 at Exhibit "MJW-1"."
5. Mr Fairbrother's contract of employment with BRE referred to at the end of the prayers just quoted was not in evidence in the present proceedings.
6. Mr Whittaker's affidavit in support of the summons in the Original Proceedings included these paragraphs (which were read again in these proceedings, but without the annexures referred to): "67. Although I did not conduct a search until after the First and Second Defendant had resigned, on 28 November 2018, prior to their resignation on 18 March 2019, with Bathurst Real Estate, the First and Second Defendant registered a company named Cleary Fairbrother Property Pty Ltd ACN 630 290 612 (Cleary Fairbrother Property). 68. The First and Second Defendants are directors of Cleary Fairbrother Property. The principal place of business for Cleary Fairbrother Property is the Second Defendant's home address. … 84. At all times during the period in which the First and Second Defendants were employed by Bathurst Real Estate, they were promoted in Bathurst Real Estate's promotional materials including, but not limited to: a. Bathurst Real Estate website: i. by way of example, a true copy of the Property Brochures appears at pages 75-78 of Exhibit MJW-1; b. Company branded writing / note pads: i. by way of example, a true copy of the writing / note pads appears at page 79 of Exhibit MJW-1; c. Media releases in local newspapers: i. by way of example, an article promoting the First and Second Defendant in local press appears at pages 80-103 of Exhibit MJW-1; d. Real Estate Brochures/letter box drops: i. by way of example, the following brochures were sent: 1. Pages 104-105 of Exhibit MJWX; … 85. I have set out below a table containing details of how each of the above promotion materials were distributed, the areas in which they were distributed and the extent of distribution. [The table is not reproduced but the types of promotional material referred to in it were sales listing folder, Western Advocate articles, Anniversary & Christmas cards, With compliments, Business card and Letter box drop.] 86. Bathurst Real Estate also manage a YouTube channel in which: a. The First and Second Defendant were: I,. featured in YouTube videos; ii. promoted the brand of Bathurst Real Estate in the YouTube videos; and iii. promoted Bathurst Real Estate's listed properties in the YouTube videos. A screenshot of a Google search screen for an example of the First Defendant's YouTube material appears at page 122 of Exhibit MJW-1. A screenshot of a Google search screen for an example of the Second Defendant's YouTube material appears at page 123 of Exhibit MJW-1. b. Bathurst Real Estate: i. promoted the First and Second Defendant in the YouTube videos; ii. uploaded approximately [number] [sic] YouTube videos of the First and Second Defendant, including the following: [The table detailing 8 YouTube videos is not reproduced.] A screenshot of the Bathurst Real Estate YouTube channel appears at page 124 of Exhibit MJW-1. Social Media Promotion 87 From in or around 2012, we began to suggest that our salespersons promote themselves on social media. This began with Facebook and later included LinkedIn. The First and Second Defendants maintain Facebook accounts and LinkedIn accounts which promote themselves and Bathurst Real Estate."
7. The proceedings resolved after a Court appointed mediation. Other than that fact, there was no evidence about how the Undertaking came to be, including who may have proposed or drafted it.
8. On 17 April 2019, Sackar J made these orders and notations recorded as a judgment of the Court (nothing turns on the inapt references to directors in the penal notice; I shall refer to the first undertaking as the "Non-Competition Undertaking"): "Short minutes of order which Sackar J signs, dates and places with the papers. Order that: Without admissions by either party and by consent, the Court: 1. Notes the undertaking by the Defendants to the Court that up to and including 24 June 2019, they will not: a. provide real estate agent services within a 10 klms radius of 102 William Street, Bathurst, NSW; b. list any property for sale; c. market or advertise themselves, any business providing real estate services, or any property for sale; d. enter into any agency agreement; e. solicit, attempt to solicit (via Social Media or otherwise), or accept any instructions to perform real estate agent services for any person within a 10 km radius of 102 William Street, Bathurst, NSW; f. encourage, condone or entice any other person or entity, in which either Defendant is interest [sic] in or engaged by, to engage in conduct which, if the Defendants had engaged in such conduct personally would cause a breach of any of the above. 2 NOTES the undertaking by the Defendants to the Court that they will remove and/or refrain from using the phrases "Bathurst Real Estate Agent" or "Bathurst Real Estate" in their email signatures and any or all marketing and promotional materials (whether online or otherwise). 3. ORDERS that the proceedings be otherwise dismissed with each party to bear their own costs. 4. That these orders be entered forthwith. To Sandy Michael Firbrother [sic] & Anor and its directors. If Sandy Michael Firbrother [sic] & Anor disobeys paragraphs (1) & (2) of this order, then Sandy Michael Firbrother [sic] & Anor and its directors will be liable to sequestration of property and the said directors to imprisonment."
9. As appears from paragraph [87] of Mr Whittaker's affidavit (see [20] above), BRE's social media activity at the time the Undertaking was given was on Facebook and LinkedIn, not Instagram (not overlooking his references to YouTube, but which was not counted in social media). I make this finding because if Instagram (or the use of hashtags on Facebook) was of any significance, I am satisfied that Mr Whittaker would have referred to it in a paragraph of a carefully drawn affidavit devoted to describing the social media platforms used by BRE at the time, or in paragraph [84] dealing with promotional materials that includes BRE's website. If there had been any evidence before the Court in the Original Proceedings dealing expressly with Instagram or the topic of hashtags, I have no doubt it would have been deployed by BRE in these proceedings.
10. Mr Michaelson's affidavit evidence, which the Court accepts, was: "18. On or around 17 April 2019 Mr Jay Cleary and Mr Sandy Fairbrother, Directors of Cleary Fairbrother, advised us that orders were made by the Supreme Court of New South Wales to the effect that each of them individually provide an undertaking to remove and or refrain from using the phrases "Bathurst Real Estate Agent" or "Bathurst Real Estate" in their email signatures and any or all marketing and promotional materials (whether online or otherwise)."
11. Under CFP's franchise arrangement with Smile, Smile offered "back of house" services to CFP by attending to all promotional and marketing material for properties being sold by CFP. Properties were always dual listed referring to both the relevant franchisee such as CFP and Smile. Smile was responsible for, controlled and ran any social media accounts (Facebook and Instagram) that were marketed or promoted as CFP sites. These were services provided to all of Smile's franchisees.
12. The production process was: 1. When CFP had a new property to list, it would email the details to Smile's production manager, Ms Bel Symons; 2. Ms Symons would prepare the listing for the property to be placed on the two main sales platforms - REA and Domain. 3. She would email the listing back to CFP for checking and approval. 4. Once approved, Ms Symons would submit the listing to REA and Domain. These listings did not involve hashtags. 5. While she may have occasionally had some input into social media posts (including proposing hashtags), that was not Ms Symons' role as production manager and not a regular occurrence. Social media was the responsibility of a person Mr Michaelson described as a "consultant" to Smile, Ms Flor Victoriano, who had provided services to Smile for a long time and was based in the Philippines. Ms Victoriano was responsible for the hundreds of social media posts for Smile franchisees that were posted at any time. 6. Ms Victoriano had access to the completed listings and would then convert them to social media posts including on Facebook and Instagram. As part of that task, it was Ms Victoriano who selected the hashtags to go with the post. 7. As a matter of usual procedure, no one else would then see Ms Victoriano's work, including her selection of hashtags, before it was posted online. While Fairbrother and Cleary could have asked to see those posts before they were uploaded, that was not normally done and Mr Michaelson would have intervened if agents sought to do that regularly. The Court found Mr Michaelson's evidence entirely persuasive that he wanted agents fully engaged in obtaining listings rather than offering views on social media posts about which they were, in his view, not qualified and which they were paying Smile to deal with on their behalf.
13. Sometime between 17 April 2019 and June 2019 Mr Michaelson told Ms Victoriano about the Undertaking (his precise evidence of what he told Ms Victoriano, and which the Court accepts and finds accordingly, is set out in [36] below). There was no suggestion he did so in writing. Nor is there any suggestion that anyone connected with Smile saw a copy of the orders which contained the Undertaking or even just the written form of the Undertaking.
14. On 18 August 2020, Mr Whittaker observed that CFP had used the Hashtag in a post relating to a property CFP was marketing.
15. On 19 August 2020, BRE's solicitor wrote to the defendants' solicitor (emphasis in original): "As you are aware we act for Bathurst Real Estate Pty Ltd. On 17 April 2019 orders were made in the Supreme Court, proceedings 2019/108893, against your clients Jay Cleary and Sandy Fairbrother. In addition, on 17 April 2019 your clients provided Undertakings to the Supreme Court, which were clearly recorded in the Orders - a sealed copy is attached for your review. Importantly Court Note 2 states: "Notes the undertaking by the Defendants to the Court that they will remove and/or refrain from using the phrases "Bathurst Real Estate Agent" or "Bathurst Real Estate" in their email signatures and any or all marketing and promotional materials (whether online or otherwise)." As your clients ought to be aware, a breach of an Undertaking to the Court can constitute contempt of Court. It has recently come to our client's attention that both of your clients are consistently using the phrase "Bathurst Real Estate" in their online marketing & promotional materials. Our clients contend that this is a clear breach of the Undertaking. In order to avoid our client taking immediate action to enforce the Undertaking, we require your [sic] both of your clients to: 1. Immediately cease and desist using the phrase "Bathurst Real Estate" in any marketing and promotional materials (whether online or otherwise); and 2. Within 2 business days of this letter they should identify all marketing and promotional materials in which they have used the phrase "Bathurst Real Estate" and permanently destroy it or otherwise delete the phrase "Bathurst Real Estate"; and 3. Within 4 business days of this letter send our office written confirmation that both your clients have complied with (1) and (2) above, including evidencing the steps that they have taken to comply with (2). In the absence of your both of clients' compliance we anticipate that our client's will immediately take steps to protect their interests…"
16. That letter was immediately drawn to Smile's attention because at 4.03 pm on 19 August 2020, Mr Michaelson's wife sent this email with the subject line "Urgent - Cleary Fairbrother Property" to Ms Victoriano, and including copies to Fairbrother and Cleary, Ms Symons and Mr Michaelson (emphasis added): "Hi Flor / Bel, Flor - Can you please go through all of Cleary Fairbrother's posts that you have uploaded - you will need to go back to the very beginning and change any text or even tags where you have used; 'Bathurst Real Estate' or 'Bathurst Real Estate Specialists' and then delete or change it to: 'Bathurst Property Specialists'. You may have forgotten but we are not permitted to use anywhere the wording 'Bathurst Real Estate' as another agency in the region used that wording. We have a court order to remove it immediately. Can you please get onto this urgently as it will take some time to check. Please don't miss any on Facebook and Insta. Bel - can you please check YouTube as well. Likewise on the CRM. This is critical. Flor perhaps set up a common template with the correct wording and tags so we don't post anything in future. Please confirm when updated. Thank you. Kind Regards, Suz"
17. The Court accepts Mr Michaelson's affidavit evidence, about which he was not challenged, that "On August 2020 and with a view to avoiding a conflict with BRE Smile removed any material that might arguably involve a breach of the undertaking to the Court" (emphasis added).
18. On 27 August 2020, Mr Whittaker was informed by his solicitor of the Facebook post included as one of the Publications. The next day Mr Whittaker located the Instagram Publications by searching the Hashtag on Instagram.
19. In what, with the benefit of hindsight, appears to be a strange omission, no response was ever sent on behalf of any of the defendants to the letter of demand set out in [29] above. It may be that this entire litigation could have been avoided if the remedial steps that had been taken by Smile had been promptly reported to BRE's solicitors.
20. These proceedings were commenced by summons and statement of charge filed on 28 August 2020. The summons and statement of charge were amended to join Smile as a defendant in June 2021.

The facts - use of the Hashtag in the Publications

1. The screenshots of the Publications attached to Mr Whittaker's evidence did not show the Hashtag. This was because, according to Mr Burrough, whoever had taken them had done so on a smartphone and had not clicked through to each Publication in a way that would have shown the Hashtag. Any submission that BRE had not proven that the Publications had been posted with the Hashtag was only faintly put by Mr Ireland QC. Mr Michaelson's attitude of not contesting what had occurred is captured by his evidence in [31] above. There was no challenge to Mr Burrough's evidence that in order to have been found by a search looking for the Hashtag as they had been, the Publications must have appeared with the Hashtag. The Court is satisfied beyond reasonable doubt and finds that the Publications were posted with the Hashtag.

The facts - Mr Michaelson's understanding of the Undertaking

1. In final submissions, BRE placed emphasis on a passage of Mr Michaelson's cross-examination which I set out in larger quotation for context (emphases added to identify the specific passages relied on by BRE): "Q. If you could just go to your affidavit then to paragraph 18, page 4. A. Yes. Yes. Q. "I found out about the undertaking on or around 17 April 2019". A. Is that, what, sorry? Q. You say at paragraph - have you read paragraph 18, I thought you were reading it? A. 19 or 18? Yes, I've read 18, yes. Q. We know that you say you found out about the undertaking on or around 17 April 2019. A. Yes. Q. Did you understand that the undertakings had been given on 17 April? A. I believe it was 17 April, but, you know, it may be, you know, a day or two later. It was a long time ago, or earlier, I don't know. Thereabouts, yes. Q. Were you told on the phone, or by email, or some other way, about the undertaking that you've told us about at paragraph 18? A. I was told by Jay and both Sandy that we could no longer use the hashtags Bathurst Real Estate or Bathurst Real Estate agent, by both of them. Q. I want to take you to paragraph 19. You say that Smile has never caused or authorised any words which Smile considered could be in breach of the undertaking. You see you've said that? A. Yes. Q. You say in paragraph 18 - you use the word "individually"? A. I was speaking to two different people. Q. Yes, but you understood that Smile could not use that Bathurst Real Estate hashtag from that day onwards, from what you've just told us? A. Yeah, that's correct, that was my understanding from them, yes. Q. That understanding that you had which applied to Smile, applied as well to Flor Victoriano, in your mind, didn't it? A. Yeah, I believe it did, and I made it very clear to Flor that, you know, she wasn't to - to - you know, to post anything that was contrary to those - those things. Flor would - sorry. Q. I'm sorry. A. No, carry on, I'm sorry. Q. How did you tell her that? How did you communicate that to her? A. It was a long time ago. Words to the effect I've been told by Jay and Sandy not to post anything. There's an agreement been made under the - under the branding of Bathurst Real Estate for Cleary Fairbrother or - or for Bathurst Real Estate agent. So for her it was very difficult, because she had, you know, Port Macquarie Real Estate and, you know, Bowral Real Estate or everyone else real estate, but with that it was different because she was in control of the hashtags. Q. Did you send her an email, or was it all on the phone to the--- A. To length, and I spoke to Susannah as well at length, and it was very clear to her. There was hundreds of - hundreds and hundreds of posts that had gone on without any issues, until I was made aware of an issue by Jay, and we immediately rectified it. I think it was over five - five posts and there'd been hundreds without a problem, but-- Q. You've told us about this undertaking, that you found that out on 17 April. How soon after that did you have this conversation with Flor that you've just told us about? A. It was four years ago. I would imagine at some point before they started. I couldn't give you an exact date. Q. Sometime between April and June when they started? A. Yeah, what's that, four years ago now? I would imagine that would be the case."
2. BRE relied on Mr Michaelson's evidence which I have emphasised about Mr Michaelson's references to the hashtags. Mr Ireland QC submitted that there was a difficulty with that evidence because at that early point of the chronology no issue of hashtags had arisen and Mr Michaelson appeared to be using "hashtag" as a synonym for the prohibited "phrase". He submitted this was because of "a sort of coalescence in the questioning between the use of the phrase and the hashtag".
3. In the course of final submissions I indicated to the parties that, in observing Mr Michaelson give his evidence, I had had the same thought (given the difficulties under which Mr Michaelson was labouring - see [12] above), particularly when read with his reference to branding in what he recalled telling Ms Victoriano a few lines later in the transcript reproduced in [36] above.
4. I do not need to resolve this issue. The Undertaking must be objectively construed. As Mr Thangaraj SC, correctly in my respectful view, accepted in the course of argument, whatever Mr Michaelson may have been told or understood about the meaning of the Undertaking, that did not prevent the defendants advancing the arguments they were now making about the construction of the Undertaking, including its ambiguity. I deal with this question further in [60] - [63] below.

Some common ground

1. Some matters were not in dispute or, having been raised in opening written submissions, were finally not the subject of serious contention.
2. BRE was alleging a civil contempt. The applicable principles were the same irrespective of whether the contempt was said to be failure to comply with an order or an undertaking. BRE had to prove beyond reasonable doubt that the alleged contemnors were on sufficient notice of the terms of the Undertaking and that the contempt was wilful and not merely casual, accidental or unintentional. The dispositive legal issues that were in contest concerned the construction of the Undertaking, whether it was ambiguous in the requisite sense, and the extent to which reasonable steps towards compliance with the Undertaking had any part to play.
3. By the end of the hearing neither Smile's position as a third party nor, in particular, Ms Victoriano's position as a "consultant" to Smile was deployed to exculpate any of the defendants. Finally, Mr Ireland QC did not submit that any of the defendants was not sufficiently on notice of the Undertaking.
4. It is also convenient at this point to deal with one other general matter. In his closing submissions, Mr Ireland QC submitted that Smile was not charged as a principal contemnor but with accessorial liability for aiding and abetting the breach of the Undertaking by Fairbrother and Cleary. With respect, that is a misreading of the statement of charge. This charges that Smile was on notice of the Undertaking and acted "in wilful disobedience and in breach of the" Undertaking by having "aided, abetted or otherwise assisted" Fairbrother and Cleary to use the Hashtag in the Publications. That is a charge of breaching the Undertaking as a principal, albeit as a third party with notice of the Undertaking as opposed to having itself given the Undertaking.

BRE's submissions

1. BRE's submissions may be summarised as follows: 1. The defendants were aware of the Undertaking and engaged in wilful conduct or inaction that breached the Undertaking. 2. They could not evade liability by outsourcing control of their social media function to Ms Victoriano in the Philippines. 3. A third party such as Smile, properly on notice of the Undertaking, could be held to be in contempt of it. 4. The defendants had not taken reasonable steps to comply with the Undertaking (for example, by giving clear instructions to Ms Victoriano, proof-reading the posts prior to publication and random checks of the posts). This meant that the defendants could not maintain that the conduct was casual, accidental or unintentional: Australian Competition and Consumer Commission (ACCC) v Hercules Iron Pty Ltd [2008] FCA 1182 (Hercules) at [8] per Gordon J. 5. There was no ambiguity in the Undertaking, especially when it was the case that Fairbrother and Cleary were represented by their current solicitors in the earlier proceedings: Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 (Pang) and [52]-[61]. 6. In any event, the defendants clearly understood that the Undertaking prevented them from using the Hashtag, so it was not open to them now to say that the Undertaking was somehow ambiguous or that they had not breached the Undertaking: Microsoft Corporation & Microsoft Pty Ltd v Marks (No 1) (1996) 139 ALR 99; [1996] FCA 709 (Microsoft) at 121. The fact that they understood that explains why there was no response to the letter of demand of 19 August 2020. 7. The Hashtag was the "phrase" "Bathurst Real Estate" within the meaning of the Undertaking, not least by reference to the dictionary definitions of "phrase" and "hashtag".

The defendants' submissions

1. The defendants' submissions may be summarised as: 1. The context of the Undertaking was it was given to resolve an "unfaithful employee" employment dispute. It was an undertaking by Fairbrother and Cleary personally. CFP, which was known by BRE to be in existence at the time the Undertaking was given, had not given the Undertaking. This meant that the Undertaking only applied to use in a business of which Fairbrother and Cleary were the proprietors and not a business of which CFP was the proprietor. 2. On its proper construction, the Undertaking only operated for the same period as the Non-Competition Undertaking: 15 April 2019 to 24 June 2019. It does not include the words "permanently refrain" and otherwise contains no indication of how long it was intended to operate. 3. The Hashtag - three words run together - was not a "phrase" within the meaning of the Undertaking. 4. The use of the Hashtag with the Publications by the administrator of the Facebook and Instagram accounts was not a use "in marketing and promotional materials" as limited in the Undertaking, but was a functional use of the characteristics of the platform and analogous to a search engine. The Hashtag was not displayed in a manner which made it part of any "marketing and promotional materials" because it did not appear in the post itself which gave the details of the subject property. 5. Alternatively, by reason of the matters referred to in the preceding sub-paragraphs, the Undertaking was ambiguous and therefore unenforceable. However, that conclusion did not entail finding that the Undertaking was completely meaningless because it still had a clear operation. 6. The Hashtag was never unique to the business of CFP. It could be used by anyone on a post and if searched for by anyone it would bring up posts for business and properties in the Bathurst area unrelated to CFP, Smile or BRE including other real estate agencies and service providers.

Consideration - ambiguity and construction - legal principles

1. The parties accepted that the relevant principles in relation to construction and ambiguity were set out in Pang. Beazley JA (as her Honour then was) and Lindgren AJA delivered reasons to similar effect, and McColl JA agreed with both.
2. Pang concerned an undertaking to the Court "to provide to [Bydand Pty Ltd's] legal representatives 14 days' notice of any intention of disposing or encumbering, or in any way dealing with [a specified property] until further order of the Court". On 16 March 2019, Mr Pang entered into a contract to sell the specified property. Notice of this was given in purported compliance with the undertaking on 26 March 2019 on the basis that the undertaking required notice to be given within 14 days after a relevant dealing with the property. At first instance, Mr Pang admitted the breach subject to his contention that the undertaking was ambiguous. Einstein J rejected this and found Mr Pang guilty of contempt.
3. Before the Court of Appeal, four possible meanings of Mr Pang's undertaking were presented. Two were accepted by Mr Pang as meaningless. One was the basis on which notice had been given as described in the preceding paragraph. This was also dismissed as not tenable, leaving the Court to accept the fourth as the only sensible available construction. In reaching this conclusion Beazley JA said (emphases added): "52 A person cannot be committed for contempt of court for breach of an order or undertaking, the terms of which are ambiguous: Australian Consolidated Press Ltd v Morgan [1965] HCA 21; 112 CLR 483. If on its plain reading, objectively construed, the undertaking is of uncertain or ambiguous meaning, there will be no contempt for a failure to obey it: Spokes v Banbury Board of Health at 48-49. Nor can a person be committed for contempt on the ground that upon one of two possible constructions of an undertaking, the person had breached the undertaking: see Australian Consolidated Press Ltd v Morgan per Owen J at 515-516, referring to the statement of Jenkins J in Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387. 53 There is a distinction, however, between an undertaking the terms of which are ambiguous and the situation where there are difficulties of construction: see Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 per Lindgren J at 121. In that case, Lindgren J [references to Lindgren J should, with respect be to Jenkins J] pointed out that neither a contemnor's lack of understanding of the terms of the undertaking according to their true meaning nor lack of awareness that his or her conduct constituted a contempt means the alleged contemnor cannot be found guilty of contempt: cf Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31. 54 In Kirkpatrick v Kotis [2004] NSWSC 1265; 62 NSWLR 567 Campbell J (as his Honour then was), was concerned with whether the terms of a court order were ambiguous. His Honour referred to the statement of Sir W Page Wood VC, in Spokes v Banbury Board of Health, that a court order must be obeyed unless it is ambiguous. 55 Campbell J, at [55], then made the following observation: "In my view, the court approaches the question of whether the order is ambiguous with the caution appropriate to a type of litigation which could result in the defendant being punished - if an order is really not clear, it is unjust for someone to be punished for not obeying it. As well, though, the court approaches the question of whether the order is ambiguous on the basis that the recipient is expected to try to understand it and obey it. If a person taking that approach to the order could be in real doubt about what it meant, in a respect which is relevant to the particular charge of contempt which is brought, the charge will fail. This means that there will sometimes be orders which a grammatical analysis would show to contain a syntactic ambiguity, but which are none the less enforceable if it is the type of ambiguity that has no real risk of misleading. There will sometimes be orders which contain a term which has multiple meanings, but where that semantic ambiguity has no real risk of misleading. If there were to be an order addressed to a promoter of musical groups not in any way to be involved in the advertising or promotion of a band under some particular name, the order would be enforceable notwithstanding that a 'band' can sometimes be a rubber band, or a headband." (emphasis added) 56 As these authorities indicate, various phrases have been used when seeking to determine whether the terms of an undertaking are ambiguous. These include: whether its terms were really not clear; whether the terms were such that a person reasonably trying to obey them would know what they meant; whether the person required to comply with the undertaking could be in real doubt as to what the undertaking meant: see Kirkpatrick v Kotis at [55]; whether the terms of the undertaking could mislead the person bound upon a plain reading of its words: see Spokes at 48-49. 57 It is clear on the authorities that if the terms of an undertaking are truly ambiguous, there can be no contempt, because it cannot be said what it was that required compliance. It also appears to be common ground on the authorities that regardless of how the question is formulated, the terms of an undertaking are to be given a sensible meaning, consistent with its actual terms. It must be possible on that meaning for the undertaking to be capable of being obeyed. 58 Although senior counsel for the appellant advanced the four suggested meanings of the undertaking set out at [46], in reality, only the third possible construction was practicably available if, in fact, the undertaking could be so construed. Senior counsel for the appellant submitted that that construction was not open. He argued that this construction disregarded the words of the undertaking which correlated the formation of an intention to do something and the giving of a specified period of notice of the formation of that intention. It followed that the undertaking could not sensibly be obeyed because it was difficult, if not impossible, to determine precisely when 'an intention' was formed to do something. 59 It must be said that the terms of the undertaking given by the appellant leave something to be desired. Nonetheless, the Court should seek to give meaning to the undertaking, if its terms so permit. In this regard, the context in which the undertaking was given is relevant to its proper construction. The trial judge considered that that was an appropriate approach and referred, in particular, to the correspondence between the parties in May and June 2008. This correspondence demonstrated that in August 2008, the appellant was already familiar with the terms of the undertaking. I agree with his Honour that the earlier correspondence is relevant but, in my opinion, its relevance is in the doubt it casts upon the appellant's explanation of his non-compliance, namely, that he read the undertaking quickly. 60 Even if the appellant did read the terms of the undertaking quickly, there were other surrounding circumstances of significance. First, it is apparent from the correspondence, and most particularly the terms of his solicitor's letter of 17 June 2008, that the appellant knew the undertaking (sought first as a personal undertaking, and then as an undertaking to the Court), was required to allay the respondent's concerns that the appellant would deal with the property. 61 Secondly, it is not irrelevant, in my opinion, that the solicitors for both parties, and in particular, the appellant's solicitor, had no difficulty in understanding what was required by the undertaking. Thirdly, the effect of the appellant's affidavit evidence was that, when he was told what was required of him by the undertaking, he immediately understood what it meant, namely, that he was to give 14 days notice before he entered into any transaction or dealing with the property. In other words, once the appellant had the undertaking explained to him, he did not contend that the undertaking was meaningless or ambiguous, as later argued both before his Honour and again before this Court on appeal. 62 Given this context, the undertaking could only mean and, in my view, was properly only understood by the appellant to mean, that he was to give notice to the respondent 14 days before he dealt with the property by sale, mortgage or otherwise. To find otherwise would be to give the undertaking no meaning at all. In my opinion, the undertaking did have meaning and no one could reasonably have been misled as to its proper meaning. Accordingly, I would reject the appellant's argument that the undertaking was ambiguous."
4. Lindgren AJA concluded (at [153]) that Mr Pang's undertaking "has only one sensible and reasonable meaning", noting (at [155]) that "in the construction of the undertaking, its purpose is properly influential". At [160] his Honour said (emphasis added) "The only sensible meaning of the undertaking is that notice must be given of an intention that already exists and will continue to exist for at least a further 14 days before it ceases to exist by being realised".
5. In support of his submissions that the Undertaking was ambiguous, Mr Ireland QC also relied on the decision of the majority in R&I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 (R&I). The case concerned the meaning of "asset" in an asset preservation order. Ipp J said (at 69-70) (emphases added): "The requirement of clarity was succinctly stated in Collins v Wayne Iron Works 227 P 326, 76 A 24, 25 (1910) - described in Miller, Contempt of Court (2nd ed, 1989), p 424 as "a leading American case" - where it was said of an injunction that: "[It] should be as definite, clear and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and, when practicable, it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling on him for inferences or conclusions about which persons may well differ." Contempt of court is not established if, on a proper construction of an ambiguous court order, it is revealed that the order has been breached by the conduct of the defendant. In such circumstances, there is no contempt as the conduct of the defendant is not contumacious. The public interest in the administration of justice does not require the contempt power to be exercised where, on one possible construction of a court order, it has been disobeyed, but not on another construction, of which it is reasonably capable. Further, the need to assist a private litigant, by coercion, to enforce an order granted in his favour, is less than compelling when the order (which is ordinarily granted in the terms framed by the plaintiff: cf P A Thomas & Co v Mould [1968] 2 QB 913) has more than one reasonable meaning. As appears from the reasons of Owen J, in the present case there are two reasonably possible constructions of the word "assets" in the orders of court in question. The respondent relies heavily on Ex parte Gilchrist; Re Armstrong (1886) 17 QBD 521. In that case an eminent Court of Appeal distinguished between the power of a person to appoint an estate to himself, on the one hand, and property on the other. Fry LJ said (at 531) that: "Not only in law but in equity the distinction between 'power' and 'property' is perfectly familiar, and I am almost ashamed to deal with such an elementary proposition." Counsel for the appellant, in a careful and cogent argument, submitted that Ex parte Gilchrist; Re Armstrong (supra) no longer represents the law, or alternatively that it is to be distinguished from the facts of the present case. It may very well be that in the end the arguments advanced on behalf of the appellant are found to be correct. I express no opinion on that save to state that in my view the arguments advanced by senior counsel for the respondent are reasonably open and the arguments on both sides appear to be fairly finely balanced. The point is, however, to paraphrase Jenkins J in Redwing Ltd v Redwing Forest Products Ltd (at 390), the fourth respondent, Lombardo, cannot be committed for contempt on the ground that upon one of two possible constructions of the court orders, he has disobeyed them. The orders did not make it clear to Lombardo, as a matter of fact, what he was prohibited from doing. The orders of court could readily have been drafted in a form that plainly, and with precision, would have prohibited the exercise of trust powers by Lombardo. They did not. It is reasonably arguable that, properly construed, the court orders did prohibit the acts in question of Lombardo. In my opinion, however, the difficulties in construing the orders and their inherent ambiguity preclude a finding of contempt. In the circumstances I agree that the appeal should be dismissed.
6. Owen J, after considering the contentions on construction, concluded (at 83): "In my opinion, the position advanced by R & I is clearly arguable. The combination of powers may amount to a general power of appointment and, as such, or in their own right, they may be a form of property or (perhaps a little less likely) they may constitute some form of property interest in the underlying assets of the trust fund. However, it is equally arguable, as counsel for Lombardo submits, that they are not "assets" as that phrase is used in the Injunction. The distinction between a direct interest of a proprietary nature and an ability to affect proprietary interests by the exercise of authorities and discretions has not been entirely overlooked in the Injunction. Paragraph 1 refers to "present and future assets" generally. Paragraphs 2(a) and (c) relate to direct interests of a proprietary nature, namely, items of real property and shares in private companies respectively. However, par 2(b) specifically refers to the exercise of certain powers which might affect items of real property. Earlier in these reasons, I have set out the text of par 2(b) and I have italicised the phrase in question. I do not suggest that this determines the issue of construction but it does point up the distinction. In a case of this nature, where clarity of language is required, a person affected by the order might believe that the specific inclusion of some "powers" within the restraint indicates an intention not to include the exercise of "powers" generally. I put it no higher than that. In the end result, it seems to me that the order is ambiguous. I am not persuaded that the result reached by the learned trial judge is wrong. Ground (c) has not been made out and, once again, ground (d) falls with it."
7. Finally, although it comes from the field of contract (but noting that in this case the Undertaking is a term of the contract the parties reached to settle the Original Proceedings), conceptual assistance for the present problem as to the nature of ambiguity can be found in this passage of Leeming JA in Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 (Gleeson and White JJA agreeing): "The primacy of the text 72. The first is that the "plain meaning" reflects the primacy of the text of a written contract. The starting point and the ending point of the construction of a written commercial contract is the language chosen by the parties to record their bargain. In a familiar passage, Gibbs J referred in Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109; [1973] HCA 36 to the "primary duty" of a court construing a written contract to ascertain the legal meaning of a document "from the words of the instrument in which the contract is embodied". As I have said, "very often, nothing in the context will come close to displacing the ordinary grammatical meaning of the legal text": Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 at [74]…. 75. Many authorities to the same effect could readily be collected. The ultimate question is whether the written language of the contract, when considered in light of legitimately relevant surrounding circumstances, permits a constructional choice to be made between two different legal meanings. This leads to the second point. Ambiguity is a conclusion 76. There is now a deal of authority for the proposition that whether there is in truth a constructional choice available to a written contract cannot be determined without first at least considering evidence of surrounding circumstances…. 79. In my view, two more recent decisions of the High Court strengthen the conclusion that "ambiguity" is a conclusion, rather than a precondition to the admissibility of evidence of surrounding circumstances. First, in Victoria v Tatts Group Ltd, the question was the legal meaning of "a new gaming operator's licence", noting that the expression "Gaming Operator's Licence" was defined by reference to a particular licence issued under the Gaming Machine Control Act 1991 (Vic). This is a good example of a recurring phenomenon: any conclusion as to whether the undefined term was ambiguous or instead bore a plain meaning could not be reached without first having regard to the context (notably, new legislation governing the licensing of gambling). A unanimous High Court, without once mentioning any threshold "ambiguity gateway", allowed the appeal saying at [51] that the construction it favoured was "supported by references to the text, context and purpose". The High Court then addressed the text (at [52]-[60]) and then the context and purpose (at [61]-[72]) and "other contextual matters" (at [73]-[74]) before concluding that "the text, context and purpose of the 1995 Agreement all support the conclusion" that the term was narrower than had been held by the Victorian Court of Appeal."
8. Because so much of the law about construction was developed in relation to contracts, it is salutary to begin by observing a distinction between contract and contempt before attempting to synthesise the authorities to which I have referred into a summary of the principles which apply to this case. That distinction is that an ambiguous contract, once properly construed, may be found to have been breached and damages then awarded, but breach of an ambiguous undertaking on its proper construction will not give rise to a liability in contempt.
9. A party may be held liable in damages for breach of a contract the meaning of which is unclear where a court has decided the proper construction of the contract. The possibility of more than one reasonably arguable construction of a contract may only be relevant insofar as a party contends that its conduct, while a breach of the contract properly construed, was not repudiatory because it was acting bona fide on what has turned out to be an incorrect understanding of its rights: Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 WLR 277 at 283 per Lord Wilberforce.
10. The contrast between this outcome in contract and the law of contempt is encapsulated in this statement by Ipp J highlighted in the extract from R & I in [50] above: "Contempt of court is not established if, on a proper construction of an ambiguous court order, it is revealed that the order has been breached by the conduct of the defendant". In other words, while the Court will determine the proper construction of the order, there can be no contempt if that determination is the result of resolving clearly or reasonably arguable alternative contentions (and while they may largely overlap, "clearly" and "reasonably" are not coextensive in this context). This is because the existence of those contentions demonstrates that the order is ambiguous in the requisite sense.
11. The analysis in the preceding paragraph highlights a difficulty in this aspect of BRE's case. Much of its argument really seemed to be that because the Undertaking had to be, and could be, given a proper construction, there was no relevant ambiguity and a breach could be demonstrated by reference to that proper construction. This approach missed what might be termed the middle step - a consideration of the quality of the respective contentions to arrive at the proper construction. Given the circumstances in which court orders are made and undertakings given, a completely meaningless order or undertaking will (or ought to) be a very rare creature. On the other hand, the cases demonstrate that, as with all other writings intended to have legal effect, legal skill of the first order can still produce orders and undertakings that will generate debates about their proper meaning in a given (and perhaps unforeseen) set of circumstances.
12. Including by reference to the authorities referred to in [47] - [52] above, the correct approach to a problem such as the case at bar may be summarised as: 1. An undertaking must be given a sensible meaning if possible. 2. Identifying whether an undertaking is ambiguous so as to preclude a finding of contempt can only be done by determining the proper construction of the undertaking. 3. The tasks of construction and identification of any ambiguity are to be approached with a caution that recognises the consequences for breach may be punishment. This calls for an approach similar to that applied to penal statutes and is why "plain meaning" assumes particular importance. Given the consequences for breach, an order should be interpreted recognising that its meaning should be clear on its face to the person bound, who should not be expected to need recourse either to lawyers or to subtleties such as implications or inferences (reasonable or otherwise). 4. The proper construction of the undertaking is to be done in accordance with the familiar canons of the construction of legal instruments: an objective determination of meaning giving primacy to the text, but read in the light of the context including the purpose of the undertaking and the surrounding circumstances known to the parties. 5. There can be no ambiguity if, as in Pang, the undertaking could have only one meaning to avoid being meaningless or nonsensical. 6. However, there can be no contempt if the meaning of the undertaking is ambiguous. 7. The requisite ambiguity that will prevent a finding of contempt will exist if the Court is satisfied that, in a respect which is relevant to the particular charge of contempt, there are clearly or reasonably arguable alternative contentions for the constructional choices required to be made to ascertain the meaning of the undertaking. While they may largely overlap, "clearly" and "reasonably" are not coextensive in this context. However, not every difficulty of construction raised by an alleged contemnor will meet this threshold.
13. Before leaving this consideration of the legal principles, there are two other matters which should be addressed.
14. First, in setting out the summary in [57(7)] above, I have not overlooked Beazley JA's observation in Pang at [56] (see [48] above) about the various expressions judges have used to describe the type of ambiguity that will prevent a conviction for contempt. I am mindful that such expressions should not be given the force of statute. Nevertheless, the summary is drawn from some of those expressions and will, if satisfied, in my respectful opinion meet the others such as, for example, that the alleged contemnor "could be in real doubt" about the meaning of the undertaking.
15. Second, out of deference to the argument presented, I will say something about the significance of the alleged contemnor's understanding of the meaning of the undertaking (as to which, see also [36] - [39] above). This is because BRE submitted (see [44(6)] above) that the defendants clearly understood that the Undertaking prevented them from using the Hashtag, so it was not open to them now to say that the Undertaking was somehow ambiguous or that they had not breached the Undertaking. In closing submissions, Mr Thangaraj SC nevertheless accepted that, as in Pang, an alleged contemnor could defend the charge by arguing for a construction different to that which they had at the time of the contempt and which is the construction the court finds is the correct one. What follows can only be obiter dicta, because in this case even assuming the defendants thought the Hashtag was prohibited by the Undertaking, the Court finds below that this is not the proper construction of the Undertaking.
16. BRE relied on this passage of Lindgren J's judgment in Microsoft at 121 (emphasis added): "The proposition that a contempt will not be found where the terms of an order or undertaking are unclear, ambiguous or apt to mislead (except, perhaps, if the prosecutor proved that the contemnor understood them in accordance with what the court holds to be their true meaning) must be distinguished from certain other propositions. It does not signify that there is no breach wherever there is difficulty in the construction of the terms of an order or injunction which it falls to a court to resolve. Nor does it signify that contempt will not be found wherever an alleged contemnor did not understand the terms of an order or injunction according to their true meaning, much less wherever an alleged contemnor was unaware that his or her conduct constituted a breach of the order or undertaking (cf Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31)."
17. There can be no doubt the Lindgren J was a judge of great experience. Nevertheless, it is, with great respect, a tentative expression of an obiter opinion and I would be unable to accept it as correct without a great deal more analysis than either party presented. That is not a criticism. Ultimately the question is not dispositive.
18. More generally, a party's subjective understanding of the meaning of an order or undertaking is not relevant to the Court's task of determining the proper meaning objectively. That a party had an understanding of the undertaking that accord's with the court's determination of its meaning can fortify the court in its conclusion: see Pang at [61] quoted in [48] above. Such an understanding will also be relevant to, but I am not persuaded would necessarily in all cases be completely determinative of, the issue of wilfulness. Finally, whether it accorded with the Court's construction or not, the alleged contemnor's understanding may also be relevant to penalty, depending on the nature of the restraint and the circumstances of its breach.

Consideration - ambiguity and construction - surrounding circumstances and purpose

1. Before turning to the issues of construction raised by the parties, it is convenient first to set out the surrounding circumstances or context as at 17 April 2019 which the Court considers relevant to construing the Undertaking: 1. The Undertaking was given as part of the settlement of litigation brought by an employer who contended its employees were, or were about to, breach their post-employment restraints. 2. The relief sought in the Original Proceedings (see [18] above). 3. That the Undertaking emerged from negotiations at a court annexed mediation in which the parties were legally represented. 4. The parties to the Original Proceedings knew of the existence of CFP and its ownership by Fairbrother and Cleary. 5. The parties to the Original Proceedings knew of the matters alleged in Mr Whittaker's affidavit (see [20] above) whether or not the truth of them was accepted (although it appears unlikely they would have been matters of controversy). 6. There is no evidence that the use of Instagram was a matter in the contemplation of any of the parties to the Original Proceedings.
2. The purpose of the Undertaking is also readily discernible: to prevent Fairbrother and Cleary from representing any ongoing association with BRE. This is to be contrasted with the Non-Competition Undertaking, which dealt with non-competition for a defined period and had its origin in the final relief sought in the summons (see [18] above). Relief to the effect of the Undertaking was not sought in the Summons (as Mr Thangaraj SC accepted). However, given Mr Whittaker's evidence of the extent to which Fairbrother and Cleary had been marketed as leading agents of BRE, it is obvious that BRE would have had a strong interest in obtaining a promise which prevented Fairbrother and Cleary from continuing to suggest any continuing association with BRE.
3. I will next turn to each of the issues of construction of the Undertaking presented for determination, and consistently with what I have said in [57(2)] above, determine whether the requisite ambiguity has been demonstrated.

Consideration - proper construction - the Hashtag

1. Mr Ireland's submission relied on the text of the Undertaking itself, in particular the specific identification of "the phrases … or "Bathurst Real Estate"". In his contention, #bathurstrealestate did not meet that description in its appearance or its meaning. It is a simple point. However, simple points are not necessarily weak or spurious. In this case it is clearly or reasonably arguable and, as will appear below, is correct.
2. BRE met this argument by submitting they were the same "phrase". BRE's final written submissions on this point were: "9. It seems to be suggested in this matter that there is a distinction between using the phrase "Bathurst Real Estate" and using the hashtag #bathurstrealestate. Such a proposition ignores the plain meaning of the words "phrase" and "hashtag". 10. In this regard, the Macquarie Dictionary, defines "phrase" as follows: /freɪz/ (say frayz) noun 1. Grammar a sequence of two or more words arranged in a grammatical construction and acting as a unit in the sentence. 2. Linguistics a word or group of spoken words which the mind focuses on momentarily as a meaningful unit and which is preceded and followed by pauses. 3. way of speaking, mode of expression, or phraseology. 4. a characteristic, current, or proverbial expression. 5. a brief utterance or remark. 11. There can be no doubt that "Bathurst Real Estate" constitutes a phrase. It is specifically so described in the Undertaking. 12. In order to include that "phrase" into online marketing and promotional materials (via Instagram) the Defendants had to convert it into "social media language". That is, by the use of hashtags. 13. The Oxford Advanced Learner's Dictionary defines "hashtag" as follows: "a word or phrase with the symbol '#' in front of it, used on social media websites and apps so that you can search for all messages with the same subject." (Emphasis added) 14. The Oxford English Dictionary (3rd Edition) defines "hashtag" as follows: Transitive. To make (a word, phrase, or topic) into a hashtag on social media. Also intransitive: to create or add a hashtag. (Emphasis added) 15. In the present matter, the unchallenged evidence of Mr Burrough from [8]-[12] of his affidavit, sets out how a person uses hashtags and phrases on Instagram. At paragraph [10] Mr Burrough sets out how the phrase "I eat fruit" becomes #ieatfruit when it is constructed into Instagram. The Instagram postings are not case-dependant. 16. His evidence makes it abundantly clear that the phrase "Bathurst Real Estate" can only be used on Instagram by using #bathurstrealestate. It cannot be tagged as #Bathurst Real Estate (spaces deliberate). 17. It should be noted that Instagram compresses other business names too including: (a) Cleary Fairbrother Property to #clearyfairbrotherproperty or (b) Smile Elite to #smileelite. 18. It is clear that the Defendants breached the Undertaking by using the hashtag #bathurstrealestate in the sense that they were clearly breaching the prohibition on them not to use the phrase "Bathurst Real Estate"."
3. BRE's submissions in support of its constructional choice are also clearly or reasonably arguable. It follows that the Court finds that the Undertaking is ambiguous on the critical matter relevant to the contempt charged. For this reason alone BRE must fail.
4. Turning to the proper construction of the Undertaking, there are six reasons why the Court does not accept BRE's submissions, approaching the task mindful of the clarity to be expected in an undertaking given the potential consequences for its breach.
5. First, the Undertaking carefully identifies the forbidden expressions as "phrases". Textually #bathurstrealestate is neither of those phrases.
6. Second, "Bathurst Real Estate" in the Undertaking must (by its capitalisation) mean BRE. Similarly, "Bathurst Real Estate Agent" must (by its capitalisation) mean an agent in the employ of BRE. An important textual indicator is that the first obligation in the Undertaking is to remove or refrain from using the phrases as part of Fairbrother and Cleary's email signatures. Use in an email signature clearly identifies association with BRE. The same would have to be true of marketing or promotional material for the sale of a property which included on it "Jay Cleary - Bathurst Real Estate Agent" or "Sandy Fairbrother - Bathurst Real Estate". This construction gives effect to the purpose of the Undertaking identified in [65] above and is in accord with the context of the dispute in which the Undertaking was given. Consistently with this, for example, the Undertaking would not prevent the phrases being used in a clearly non-associative context, such as a curriculum vitae used in a marketing brochure setting out employment experience including an entry such as "20xx to 20xx Bathurst Real Estate".
7. Third, it would be uncommercial, and arguably nonsensical, to construe the Undertaking on the basis that Fairbrother and Cleary intended (or would have been asked) to bargain away their right to use generic language such as being able to identify as a "Bathurst real estate agent" if asked their occupation, or "Bathurst real estate" if asked their expertise. The capitalisation of the "phrases" makes that construction completely contrary to the text. However, that would be the result if BRE's submission is correct because, as I develop next, there was no doubt from Mr Burrough's evidence (including his going onto Instagram during his cross-examination to search handles or hashtags) that while a search for #bathurstrealestate will include results for BRE's posts, it is nonetheless a generic description equivalent to "real estate in Bathurst". It is exactly the kind of search entry a person who wanted to buy real estate would enter into Instagram and obtain references including, but far from limited to, BRE's posts. As Mr Burrough's demonstration in the witness box showed, a search for #bathurstrealestate produced many posts for other real estate agencies and service providers connected with real estate in the Bathurst area.
8. Fourth, the preceding point is driven home when it is understood that the first sentence of paragraph [16] of BRE's submission that I have recorded in [68] above is incorrect: "the phrase "Bathurst Real Estate" can only be used on Instagram by using #bathurstrealestate. It cannot be tagged as #Bathurst Real Estate (spaces deliberate)." There can be no dispute that hashtags on Instagram do not permit spaces. The flaw in this submission is that, as emerged in Mr Burrough's evidence, the "conversion" into "social media language" of the phrase "Bathurst Real Estate" (referring to BRE) is not #Bathurst Real Estate (spaces deliberate and not permitted on Instagram) but #bathurst_real_estate, which leads one to posts made by BRE (and others because of the multiplicity of other hashtags used on posts).
9. Fifth, given that the parties were legally advised and if, contrary to the Court's findings of the relevant background facts they were directing their minds to Instagram as opposed to other online platforms, it would have been a simple matter to have specified the relevant hashtag or hashtags. They did not do so.
10. Sixth, related to the preceding point, BRE's submissions referred to dictionary definitions. It has been often observed that dictionaries have limited utility in cases of construction and can distract from the primary task of determining objectively what the particular parties intended by the words they used: TAL Life Limited v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [80] per Leeming JA; Beazley P and Emmett AJA agreeing. However, in this case the definitions do not assist BRE because they demonstrate that while a hashtag can have its origin in a phrase (it can also just be a single word or a set of initials) a hashtag is not the same thing as a phrase.
11. For these reasons, the Court concludes that on the proper construction of the Undertaking, it does not deal with the use of hashtags. The parties do not appear from the text or the surrounding circumstances to have turned their minds to hashtags. Alternatively, if that construction is wrong, then on its proper construction the hashtag which is the "phrase[s]…"Bathurst Real Estate"" is #bathurst_real_estate. That construction is consistent with the purpose of the Undertaking being to prevent Fairbrother and Cleary representing any association between them and BRE. On either view, none of the defendants has breached the Undertaking by reason of the Publications.
12. Finally, neither construction leaves the Undertaking meaningless. The Undertaking has meaning and work to do in the context in which it arose, whether or not either of the constructions to which the Court has come is correct.

Consideration - proper construction - who is bound?

1. Mr Ireland QC's next submission depended on the Undertaking being given personally by Fairbrother and Cleary and not by CFP. BRE's response was that they could not evade responsibility in that way.
2. Again, Mr Ireland pointed to the text of the Undertaking. It referred to Fairbrother and Cleary only. However, three other matters support his proposition.
3. First, there is the background fact that the existence of CFP (and one could add the obvious inference that Fairbrother and Cleary intended to trade as real estate agents through CFP) was known to the parties to the Original Proceedings at the time. Again, given the parties were legally represented, if it was intended that the Undertaking should extend to the conduct of other legal persons controlled or associated in some way with Fairbrother and Cleary, it could easily have said so.
4. Second, and in proof of the preceding point, the parties did make such provision in the Non-Competition Undertaking, sub-paragraph (f) of which was: "f. encourage, condone or entice any person or entity, in which either Defendant is interest [sic] in or engaged by, to engage in conduct which, if the Defendants had engaged in such conduct personally would cause a breach of any of the above."
5. There can be no doubt that sub-paragraph was intended to bind CFP (or any other person or entity which met the description but was not a party to the Original Proceedings) to the same effect as the Non-Competition Undertaking being given by Fairbrother and Cleary.
6. The fact that legally advised parties included sub-paragraph (f) in the Non-Competition Undertaking but nothing to like effect in the Undertaking (including the familiar "by themselves, their servants or agents") is a powerful indicator that the Undertaking was drawn to bind only Fairbrother and Cleary in respect of their own personal conduct. That personal emphasis is contextually supported by the Undertaking first dealing with their email signatures.
7. The foregoing amply demonstrates that the construction advanced by Mr Ireland QC is clearly or reasonably arguable.
8. I understood BRE's response to be that the Understanding could not be construed so as to permit it to be undermined by the intervention of a corporate entity controlled by Fairbrother and Cleary or in respect of material which they as a matter of fact could have at least checked before it was published.
9. The difficulty for BRE is that it did not present a clear constructional choice: how was the Undertaking to be construed to have the result for which it contended on this point? For example, it was not seeking relief against CFP based on cases such as Gilford Motor Co Ltd v Horne [1933] Ch 935 (see also ICT Pty Ltd v Sea Containers Ltd (1995) 39 NSWLR 640) that CFP had been deliberately incorporated to enable its directors to circumvent the Undertaking.
10. BRE did submit that in drafting and posting the Publications, Smile was acting as the agent of Fairbrother and Cleary. I assume from this that the question of construction raised by BRE is that, by implication, the Undertaking extended on its proper construction to Fairbrother and Cleary by their agents. That is an implication that might be readily made in many orders and undertakings, but like all implications depends on text and context. However, the Court is not satisfied that there is any ambiguity because two clearly or reasonably arguable constructions have not been presented. Having regard to the matters referred to in [81] to [84], the text permits of only one sensible construction: the use of the forbidden phrases that is restrained by the Undertaking is use by Fairbrother and Cleary personally. That does not render it meaningless or without work to do.
11. There can be no doubt why BRE would have accepted such an undertaking from them personally. BRE would not have wanted any assertions of association to continue. Nor is there any doubt why Cleary and Fairbrother would have given it. As the Court has construed it, it was easy to comply with and of limited practical life because they would have no interest in continuing to suggest an association between them and BRE. Although a matter of speculation, experience suggests it is exactly the kind of provision a departing employee will offer that has significance (even if largely symbolic) to the former employer but in the scheme of a negotiated settlement costs the departing employee little, if anything.
12. The Hashtag has not been proven to have been personally used in a prohibited way by Fairbrother and Cleary. Therefore, on the proper construction of the Undertaking, no contempt has been made out.

Consideration - proper construction - the term of the Undertaking

1. Mr Ireland QC argued that on its proper construction the Undertaking was coterminous with the Non-Competition Undertaking. I will deal with this point briefly because the type of reasoning used in the previous section applies here, but this time in support of the conclusion that the only way the text permits the Undertaking to be read is that it is perpetual (neither party suggested it would endure only for a reasonable time).
2. The Court's reasoning is: 1. There is nothing in the text of the Undertaking to support Mr Ireland QC's argument. 2. Given the nature of the dispute, the term of the Non-Competition Undertaking had to be specified. This would suggest the absence of an express term as to the life of the Undertaking is deliberate. 3. Legally advised parties could easily have included a term in the Undertaking to make it coterminous with the Non-Competition Undertaking. Their failure to do so suggests they did not intend it to be limited as to time. 4. The purpose of the Undertaking (to stop assertions of association with BRE) would not be served by, or require, a terminal date. 5. Given that the Undertaking was personal only and considering the matters referred to in [89] above, the only way it can sensibly be read is to have no terminal date.
3. This aspect of Mr Ireland QC's argument fails.

Consideration - proper construction - use "in marketing and promotional materials"

1. To understand this argument it is necessary to be familiar with how hashtags appear. A complication with that appearance can be, as Mr Burrough explained, what the viewer sees may depend on the device being used, be it a smartphone, Ipad or large computer screen. I will proceed on the basis that hashtags (and the examples in evidence for the Publications demonstrate that a number of hashtags will be allocated to catch as many searches as possible) are there whether they can be seen or not and if they can be seen they will often appear on the side of or under a post. By way of some assistance, Schedule A to this judgment is a copy of one of the Publications that was in evidence (concerning 38 Marsden Lane, Kelso), but which coincidentally also shows a post by BRE under its account name bathurst_real_estate (which becomes its hashtag #bathurst_real_estate) with its logo.
2. Mr Ireland QC submitted that insofar as the Publications included the Hashtag, it was not used "in" the marketing and promotional materials constituted by the post. I understood the submission to be that any photograph and information about the property (or in one case an inspirational message about CFP "Be the GAME CHANGER") was the material. His argument was that the Hashtag was a search tool and was not displayed within the post that was the marketing and promotional material.
3. Mr Thangaraj SC contended that the Hashtag was both integral to any particular post and was itself a form of marketing and promotional material. In considering this argument, it is necessary to put aside the Court's conclusion that the Hashtag was not the "phrase" "Bathurst Real Estate" (which would be the hashtag #bathurst_real_estate). If that conclusion is right, then even if Mr Thangaraj SC's argument on the present issue is correct, it will not assist BRE.
4. On this aspect of the debate between the parties, to have stated the competing arguments is to demonstrate that both are clearly or reasonably arguable. That is sufficient for the Court to conclude, as it does, that this is another aspect of the Undertaking that is ambiguous so that the defendants cannot be convicted for contempt, even if there has been a breach of this aspect of Undertaking on its proper construction.
5. Turning to the question of proper construction, to my mind the outcome is finely balanced. It requires consideration not only of the meaning of "in" but also to identify what is the relevant "marketing and promotional material[s]".
6. Approaching the matter with the requisite caution, the Court has concluded that a stricter construction should be preferred such that the Hashtag has not been used "in…marketing and promotional material[s]" to the extent it appears with the Publications for two reasons.
7. First, it must be asked what is being marketed and promoted? The answer is provided by the example in Schedule One. Primarily, it is the subject property that is being marketed and promoted by photos (which I assume link to a property description because they are not visible on the smartphone screenshot). However, the post is also a means of marketing and promoting the presenting real estate agency. That is done by their account name appearing at the top of the post. These answers support the conclusion that the Hashtag (or any hashtags) are not part of the marketing and promotional material.
8. Second, the placement of the hashtags and Mr Burrough's evidence of how they work supports Mr Ireland's submission that they are a search term which the person uploading the post allocated to ensure the maximum number of viewers with a potential interest in the subject matter will find it when searching. At its highest, #bathurstrealestate could incidentally promote BRE to someone who knew there was a company called Bathurst Real Estate, but that is not its purpose and it is not part of the marketing and promotional materials.
9. While the inherent limitations of analogies must always be recognised, the reason referred to in the preceding paragraph can be illustrated by drawing an analogy between catchwords and hashtags. They have a similar role in facilitating searches by persons interested in a particular subject matter. The point is that, in my view, catchwords are not used "in" the judgment (so much is clear from this document where the judgment begins with the heading "Judgment") but are part of what might be called the ancillary apparatus of the judgment proper. Similarly, the Hashtag is not "in" the marketing and promotional materials but is part of the apparatus of those materials that appears with the post.
10. For these reasons, the Publications do not establish that the Hashtag has been used "in….marketing and promotional materials (whether online or otherwise)" on the proper construction of those words.

Consideration - wilful conduct as opposed to merely casual, accidental or unintentional

1. In case this matter goes further, I will briefly set out my reasons why I would not have been satisfied beyond reasonable doubt, even if BRE had succeeded on all other points, that the defendants' conduct in relation to the Hashtag with the Publications was wilful as opposed to merely casual, accidental or unintentional.
2. BRE's argument centred around what it submitted was the defendants' inability to show they had taken the requisite steps to prevent the breaches charged. To this end it referred in its written opening outline to what was said by Gordon J (then of the Federal Court) in paragraph [8] of her Honour's judgment in Hercules, which in context is (emphasis added): 6 In Australian Competition and Consumer Affairs v Hughes [2001] FCA 38; (2001) ATPR 41-807 at [17], [19] and [20], Tamberlin J explained the importance of certainty in the drafting of mandatory or prohibitory orders and then went on to explain the duty of those subject to such an order in the following terms: The general rule is that it is the duty of those who are subject to an order of a court to strictly observe the terms of the order: see Borrie and Lowe The Law of Contempt 3rd ed 1996, at 559-560; Arlidge, Eady & Smith On Contempt, 2nd ed 1999 at 189. It is not necessary for a court to prescribe the manner in which the required result is to be achieved; it is sufficient if the court clearly specifies that a respondent is to carry out a particular course of conduct: see Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees Union (No 2) [1987] FCA 117; (1987) 15 FCR 64 at 72-73 per Wilcox J. The order must specify with certainty the result to be achieved but it is not for the applicant to suggest, or for the court to prescribe, a particular method of compliance. In this case it is the duty of Hughes to find out and implement proper means of obeying the order. Whether the duty imposed on those subject to a mandatory or prohibitory order is one duty or two, they are simply stated: to strictly observe the terms of the order and to find out and implement proper means of obeying the order. 7 As Tamberlin J said in Hughes, for contempt it is not necessary to prove any subjective intent to deliberately disobey the order: see Stancomb v Trowbridge Urban District Council [1910] 2 Ch 190 at 194. What then is the position when the order is not observed by a failure to implement a means of obeying the order? Can such an omission be casual, accidental or unintentional? In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 113, Gibbs CJ, Mason, Wilson and Deane JJ stated: ... lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. In our view the reasons supporting the recent decisions are compelling and they should be accepted by the authority of this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional. (Emphasis added) 8 As has been noted, as soon as orders are issued the person bound by that order becomes responsible for taking adequate and continuing steps (Lade & Co Pty Ltd (2006) 2 Qd R 531 at [106]) or all possible steps (Heatons Transport (St Helens) Ltd v Transport and General Workers Union [1973] AC 15 at 113) to comply with the order. If a person bound by an order fails to take such steps to comply with the order, it cannot be said that the conduct was casual, accidental or unintentional."
3. Her Honour referred, and the Court was also taken to, the decision of the Supreme Court of Queensland Court of Appeal in Lade & Co Pty Ltd v Black (2006) 2 Qd R 531; [2006] QCA 294 (Lade). Consideration of the majority judgments in that case of Keane JA (as his Honour then was) and Jones J led BRE, correctly in my respectful view, to doubt whether notions of reasonableness were of any relevance. In its final written submissions, BRE said "To the extent "reasonable steps" are relevant (which does not appear to be consistent with Lade)."
4. Given the result to which the Court has come, it is not necessary for me to resolve whether Gordon J's observation in Hercules is correct in the light of Lade or as a matter of general law. With the greatest respect to her Honour, I have real doubt as a matter of fact whether it necessarily must follow in every case that if an alleged contemnor has not taken all reasonable steps to prevent a breach (as opposed, again "perhaps", to any steps at all), a particular breach cannot still be casual, accidental or unintentional.
5. An inquiry into what could reasonably have been done to avoid the breach risks, in my respectful opinion, distracting from the fundamental question of whether the prosecutor has satisfied its burden to demonstrate beyond reasonable doubt that there was wilful disobedience of the undertaking that was "worse than casual, accidental or unintentional" (Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at 111). The judgment of Keane JA in Lade at [85] - [90] is a clear reminder of the centrality of that fundamental question.
6. I accept Mr Michaelson's evidence (see [36] above) that from the time he became aware of the Undertaking on or about 17 April 2019 to becoming aware of a problem on 19 August 2020, "hundreds and hundreds" of posts had gone onto social media that complied with the Undertaking. BRE has proven the eight Publications - an isolated Facebook post on 8 August 2019 and seven Instagram posts between 28 May 2020 and 21 July 2020. While it must be accepted that the obligation to comply with the Undertaking is strict, eight potential breaches out of "hundreds and hundreds" of posts overseen by Ms Victoriano does not, without more, bespeak, let alone prove to the criminal standard, wilful disobedience of the Undertaking.
7. On the other hand, that statistic of eight out of "hundreds and hundreds" does raise the credible possibility that the breaches, if they be such, were no worse than casual, accidental or unintentional. That possibility therefore gives rise to a reasonable doubt. This is especially so when it is recalled that, as Mr Michaelson also explained, for all the other Smile agencies the posts would include region specific hashtags such as #bowralrealestate or #portmacquarierealestate. The other matter which supports this conclusion is the complete lack of resistance by Smile to dealing with the issue immediately once it was made aware of it. That is not consistent with wilfulness.
8. For these reasons, and having regard to the totality of the evidence, I would not have been satisfied beyond reasonable doubt that any of the defendants had engaged in wilful disobedience of the Undertaking by reason of the Hashtag appearing with the Publications.

Conclusion

1. The proceedings will be dismissed. Subject to any application for a special order (which the parties will be given an opportunity to notify to my Associate), costs should follow the event. `********** SCHEDULE A (2234184, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2022