Century Yuasa Batteries Pty Ltd v Martin

1 On 6 June 2002, I made a declaration that the respondent had committed contempt of court by failing to comply with order 5 of the orders made by consent on 26 August 1999 in that he filled out two invoices dated 5 September 2000 relating to the sale of batteries by Apollo Batteries to Island Batteries, and in that he had a number of discussions in the period referred to in paragraph 1 of the Statement of Charge with Messrs Mark Thurlow and Gary Clayton in which he solicited purchases of batteries by Island Batteries from Apollo Batteries through Alan Burton while the latter was working for Apollo Batteries. I adjourned further consideration of the contempt motion to today in relation to the issues of penalty and costs. I have considered the detailed written submissions put on by both parties and also the brief oral submissions made by senior counsel for the applicant. 2 For the reasons I published on 6 June 2002, I do not consider that the respondent set out to flout the injunctive order. I found, contrary to the case presented by the applicant, that the respondent breached the injunction only on a limited number of occasions during the quite long period it was in operation. 3 I regard the respondent's breach of the order on 5 September 2000, constituted by his filling out the two invoices, as in the nature of an unwitting or accidental breach, ie, one committed by him without realising that he was contravening the restraint. 4 I think the circumstances in which he committed the quite small number of other breaches probably involved conduct engaged in with full consciousness of the need to comply with the injunction. Those circumstances suggest that, while not simply flouting the injunction, the respondent was prepared to risk possible infringement, not for any personal advantage, but to assist his friend Mr Burton. However, I do not accept that these breaches should be treated as mere technical contempts. The respondent's conduct here can be described as foolish, though not conduct in contumacious disregard of the order. 5 The respondent offered an apology to the applicant soon after the motion was served on him, but the latter rightly points out that that was a limited apology in respect of contempts of a significantly lesser range than those which I have found were committed. Such an apology does not, in my opinion, have any mitigatory effect. 6 I also disregard the likelihood that, as a consequence of my findings against the respondent, he will now be obliged to pay the applicant the damages the subject of order 6 made by consent on 26 August 1999. 7 I do not think it is necessary to impose a fine to vindicate the authority of the Court or, to take up the comments of McHugh J in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 462, to ensure that litigants do not "lose confidence in the capacity of Courts to protect their rights". I take this view, given the limited nature of the contempts I have found proved and the circumstances in which they were committed. 8 Having regard to these considerations, and to the fact that the injunction has now expired and there is no room for imposing a penalty designed to deter the respondent from further breaches, I will not impose any monetary penalty on him. I think the justice of the case is served if I order that the respondent pay the applicant's costs of the contempt proceedings. 9 I have little doubt that applicant's major motivation in bringing the contempt motion was to protect its own commercial interests. Nevertheless, in my opinion, the applicant has acted reasonably in bringing these contempt proceedings. As the applicant itself points out, it in effect bargained with the respondent for the consent injunction because the restraint involved had a very substantial commercial value to the applicant. The applicant put on sworn evidence to support all of the charges, although I did not accept the totality of that evidence. I do not think the approach sometimes adopted in civil actions of making a costs order that takes into account the failure of the applicant on some issues is therefore appropriate in this case. 10 The basis upon which the costs that I consider the applicant should have are to be taxed is a matter of discretion and there is no principle requiring an order that those costs be taxed on an indemnity basis. See the decision of Mansfield J in Adlam v Noack [1999] FCA 1606 at [29]. In my opinion, the applicant's costs should be taxed on a party and party basis.