Connect TV Pty Ltd v All Rounder Investments Pty Ltd [2013] FCA 393 | Case summary

It be declared that the first respondent is guilty of contempt by reason of the matters set out in charge 3, laid against it in the statement of charge filed on 1 March 2011.
It be declared that the tenth respondent is guilty of contempt by reason of the matters set out in charges 2, 3 and 4 laid against her in the statement of charge filed on 1 March 2011.
The first respondent be fined $30,000 for its contempts referred to in paragraph 1 above.
The tenth respondent be sentenced to imprisonment for one month in respect of the contempt referred to in charge 2 laid against her in the statement of charge filed on 1 March 2011, this sentence being wholly suspended on the condition that the tenth respondent refrain from contravening any of the orders made by the Court and binding on her for a period of two years from the date of this order.
The tenth respondent be fined $10,000 in respect of the contempt referred to in charge 3 laid against her in the statement of charge filed on 1 March 2011.
The tenth respondent be fined $2,000 in respect of the contempt referred to in charge 4 laid against her in the statement of charge filed on 1 March 2011.
The first and tenth respondents pay the first applicant's costs of prosecuting the charges appearing in the statement of charge filed on 1 March 2011, such costs to be paid on an indemnity basis.
The first applicant pay 50% of the eighteenth respondent's costs of defending the charges laid against him in the statement of charge filed on 1 March 2011. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 On 19 February 2013 I found that Connect TV Pty Ltd ("Connect TV") and Ms Leonora Lurie, who was the company's sole director, had both committed multiple contempts of Court: see Connect TV Pty Ltd v All Rounder Investments (No 3) [2013] FCA 98. I found that three charges laid against Ms Lurie's son, Mr Vladimir Grinberg, were not proven. These reasons should be read in conjunction with those in Connect TV (No 3). 2 The charges alleged that All Rounder and Ms Lurie had contravened orders made by me on 7 and 14 September 2010. The orders were granted on the application of Connect TV which was seeking to protect what it asserted were its copyright interests in broadcasts in Australia of certain Russian language television programmes. It alleged that All Rounder and a number of other respondents had been involved in infringing its rights by advertising and marketing activities which offered consumers access to the same programming for a monthly fee. 3 Order 3(a) restrained All Rounder and its servants and agents from assisting, facilitating or being in any way directly or indirectly involved in the re-broadcasting or communicating of the Russian language broadcasts. Order 3(b) restrained them from promoting, offering, or agreeing to provide, assist, facilitate or become in any way, directly or indirectly, involved with such activities. Order 4 required All Rounder to take all lawful steps available to it to prevent or inhibit customers to whom it provided services from continuing to receive transmission of the Russian language broadcasts. 4 All Rounder and Ms Lurie were found to have assisted a potential customer to gain access to the Russian TV services and of continuing to advertise on the internet that All Rounder was a provider of such services. Ms Lurie was also found to have contravened Order 4 by failing to take lawful steps available to All Rounder to inhibit one of All Rounder's customers from continuing to have access to the Russian language broadcasts. 5 The circumstances giving rise to the "offer of services" contravention are set out in Connect TV (No 3) at [87]-[95]. In short, Ms Lurie sent an e-mail from a website used by All Rounder which invited a potential customer to contact her son with a view to the customer obtaining access to the Russian language broadcasts which All Rounder was prevented, by the Court's orders, from itself providing. The e-mail was sent in January 2011 shortly after Ms Lurie's son Vladimir had established his own business which offered to provide similar services. 6 The circumstances giving rise to the findings relating to the advertising of dealerships are set out in Connect TV (No 3) at [105]-[110]. As late as 25 February 2011 a list of dealerships appeared on a website for a provider of Russian language television services of the kind covered by the orders. One of those dealers was identified as Ms Lurie and her contact number was a telephone number which was registered to All Rounder. Callers to this number had their calls redirected to Ms Lurie's personal mobile phone. As a result of this posting Ms Lurie received "a lot of calls" from callers who were seeking access to the relevant services. She continued to receive such calls until January 2011. She denied having provided any services to such callers or referring any of them to her son. 7 The circumstances which gave rise to the charge that Ms Lurie had failed to comply with Order 4 are explained in Connect TV (No 3) at [64]-[67]. One of All Rounder's customers at the time at which the Court's orders were served on the company was one "Marina Gore". Ms Lurie had Ms Gore's e-mail contact details but not her telephone number. Although Ms Lurie telephoned each of All Rounder's other customers and advised them that All Rounder had, as a result of the Court's orders, stopped providing access to such services and suggested that the customer should not make any further payments to All Rounder for those services, Ms Lurie failed to make contact with Ms Gore. She said that she had not done this because she did not consider Ms Gore, who had only recently signed up as a customer, to be a "serious customer". 8 Whilst generally accepting the Court's findings, Ms Lurie sought to explain her conduct in ways which minimised her level of culpability. 9 Ms Lurie acknowledged that she sent the e-mail in January 2011 to the potential customer, Mr Gennady Volchek. In his dealings with Ms Lurie, Mr Volchek used the pseudonym "Sasha Bronis". Shortly after the orders had been made, Mr Volchek had telephoned Ms Lurie and asked her to install a Russian internet television service at his father's home. She had told him that she could not do so because All Rounder had stopped business. She told "Mr Bronis" that he should contact her "in a couple of months" in the expectation that the Court proceeding would have been resolved by then. She had this expectation because of things said to her by representatives of the company, Kartina TV, from whom she had secured the broadcast rights in Australia. Her e-mail to Mr Volchek in January 2011 had advised him to call "Dmitry" on 0430 543 856. The Dmitry to whom she referred was, she said, Mr Dmitry Shtiffleman who was the solicitor acting for Connect TV. She had referred Mr Volchek to Mr Shtiffleman because she thought that Mr Shtiffleman "could better explain the reasons she could not connect his father" to the Russian TV services. 10 Ms Lurie's explanation had been advanced and rejected at trial. Her explanation had derived some credence from the fact that her son Vladimir had adopted the name Dmitry Shtiffleman when he had set up his new business offering customers access to Russian TV services. He said that he had used the false name in order to prevent his parents becoming aware that he had started the new business and so that they would assume that it had some association with Connect TV. I, nonetheless, rejected Ms Lurie's explanation. I did so for the reasons which I gave in Connect TV (No 3) at [95]: "Prior to the making of the orders on 14 September 2010, Ms Lurie, acting on behalf of All Rounder, had dealings with Mr Volchek about subscribing to a Russian TV service provided by All Rounder. After the orders had been made, Ms Lurie recognised that the orders prevented her from pursuing the matter further. On 3 January 2011, however, she sent an e-mail from a website used by All Rounder inviting Mr Volchek to contact Dmitry on a mobile telephone number which Mr Vladimir Grinberg had, a few weeks before, registered for the purpose of conducting his new business. Ms Lurie offered no plausible explanation for having sent the e-mail. Her claim that, at the relevant time, she was not aware that "Dmitry" was her son and that she was merely referring Mr Volchek to somebody she did not know but thought may be able to help him, is, simply, incredible." I adhere to these views. Ms Lurie's attempt to direct business, which All Rounder was itself restrained from undertaking, to her son constituted a serious contempt of court. 11 Ms Lurie has offered inconsistent accounts of how her name continued to be recorded on the Kartina TV website as being a dealer who was able to provide Russian language TV services to potential customers in Australia. At trial she said that she had seen the entry on the website in December 2010. For a long time before that she was aware that her name appeared on the website. She was happy that Kartina had not taken down her name. As a result of her name appearing on the website she had continued to receive telephone calls relating to the installation of services. She had not, however, provided any services to the callers or referred any of them on to her son's business. 12 In an affidavit which she affirmed prior to the penalty hearing Ms Lurie proffered a different account. Ms Lurie deposed that, after the Court's orders had been made, she contacted a Mr Greenberg from Kartina TV and asked him "to not promote me as their dealer until this matter is resolved." She said that Mr Greenberg had said that he would do so. Her evidence continued: "I did not check immediately whether my details had been removed from Katrina TV's website which I now understand to be a grave oversight. I am highly apologetic to the court for my sloppiness and would like to stress that this was in no way an act of intentional defiance. I only realized that I was still being promoted on their website much later when I continued to receive phone calls in regards to the Russian television service for a long time after removal of all advertising materials. I turned away all of the potential customers who I believed were getting my number through word of mouth or had taken the number of one of our advertisements prior to when I received orders. I took on the task of explaining about my current situation and the Injunctions placed on my company which I believed was what I was meant to do. The continuance of calls so long after stopping operation and advertising made me wonder how these people are getting my number so I asked one of them. They advised me that they got it of (sic) the Kartina TV website. I immediately, with time difference in mind contacted Mr. Greenberg of Kartina TV by telephone and asked him why he hadn't stopped promoting my number on the website. His answer was that his techs must have forgotten to do it and in any case he thought this matter would be over by now. He assured me that he would have this matter taken care of." 13 It is first to be observed that Ms Lurie, in her most recent statements, fails to place even approximate dates on significant events. She does not say when she first realised that she "was still being promoted on [the Kartina TV] website". She does not identify the period during which she was receiving telephone calls on the All Rounder 1800 number which appeared on the website. She does not say when it was that one of the callers told her that the number appeared on the website. Furthermore she does not say when it was she first requested Mr Greenberg to remove her details from the website and when it was she contacted him again to ask why the number had not been removed. 14 Parts of Ms Lurie's more recent account are plainly inconsistent with her evidence at trial where she had said that she was aware in December 2010 that her details continued to appear on the Kartina TV website, that she had previously been aware of this and that she was glad that her name had not been taken down. She offers no explanation of why it was that her entry continued to appear on the website over two months after she first saw it, save for the vague statements about her conversations with Mr Greenberg. 15 I consider Ms Lurie's evidence on this point to be unconvincing. Her conduct involved more than a "grave oversight". On her own original account she was well aware that her (All Rounder) services were being promoted on the Kartina TV website and she was happy that this had continued following the Court's orders. This evidence is consistent with there having been deliberate inaction on her part to comply with this aspect of the orders. This inaction constituted a serious contempt. 16 There are aggravating features of both of the first two contempts. Before they were committed, All Rounder had been served with the first set of charges. This had occurred on 29 September 2010. A directions hearing had taken place on 1 October 2010. On 16 November 2010 Ms Lurie swore an affidavit in which she deposed that she had "stopped all operation and followed all orders to the best of my abilities." On 3 December 2010 the Court made orders fixing 22 March 2011 as the date on which the charges All Rounder were to be heard. 17 Despite these events Ms Lurie subsequently sought to divert business which All Rounder was restrained from conducting to her son and did so surreptitiously. She also failed to take any active steps to have her name and contact details removed from the Kartina TV website. 18 There are also inconsistencies in the evidence which Ms Lurie gave at trial and, on affidavit, prior to the penalty hearing concerning her failure to take all lawful steps available to her to discontinue service to customers once she became aware of the Court's orders on 17 September 2010. 19 As already noted, Ms Lurie gave evidence at trial that she had telephoned all existing customers save Ms Marina Gore. She had advised them that All Rounder could no longer provide them with services. 20 Her affidavit painted a very different picture. She said that, upon being made aware of the Court's orders, she had sought advice from her son Vladimir. He had told her that she should contact Kartina TV and Russian TV4U Co for advice about how to interrupt the signals being received by the customers. She had contacted representatives of these two companies. They had told her that she "had no ability or right to disconnect them as they are not my customers and furthermore I should not make any attempt to harass their customers." They had sought to convince her that they had the legal right to provide the programming and that she would be able "to keep going with my business and ignore the orders." She had responded that she would not continue with her business until the orders were lifted. Ms Lurie expressed her "deepest apologies" for "failing to contact the customers and attempt to persuade them to disconnect [their services]." She said that she regretted placing her trust in the advice which she had received from the representatives of the two companies. 21 Ms Lurie made no mention of any of these discussions in either of the affidavits she affirmed prior to trial nor during her extensive cross-examination about the matter at trial. 22 Whilst I harbour serious misgivings about the credibility of Ms Lurie's evidence, the fact remains that Ms Lurie was only found guilty of contempt for failing to have made contact with Ms Marina Gore and seeking to persuade her to discontinue use of the Russian language service prior to the end of the monthly period covered by her initial payment for service. Her failure to make contact with Ms Gore could not have been motivated by a desire for monetary gain and arises from neglect rather than from a deliberate attempt to avoid compliance with the Court's orders. I do not regard this contempt to be as serious as the others. 23 The power of the Court to punish for contempts is conferred by s 31 of the Federal Court of Australia Act 1976 (Cth): it has the same powers as are possessed by the High Court. The High Court, in turn, has the same power as was possessed by the Supreme Court of Judicature in England at the time of the enactment of the Judiciary Act 1903 (Cth): see s 24 of the Judiciary Act. By rule 11.04.1(a) of the High Court Rules 2004 (Cth) the Court has power to order that a contemnor "pay a fine, be committed to prison, or both pay a fine and be committed to prison." The Court also has power to order the sequestration of the assets of a contemnor and to suspend on condition any sentence of imprisonment that it might impose in respect of a contempt: see Australian Competition and Consumer Commission v Info4pc.Com Pty Ltd (2002) 121 FCR 24 at 54 (per Nicholson J). 24 The imposition of a penalty for contempt serves to protect both the interests of the applicant and the administration of justice. In their joint judgment in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107 Gibbs CJ, Mason, Wilson and Deane JJ said that: "Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt, 2nd ed. (1983) say, at p. 3: 'If a court lacked the means to enforce its orders, and its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.'" See also Witham v Holloway (1995) 183 CLR 525 at 533-4; Australian Competition and Consumer Commission v Hughes [2001] FCA 38 at [15]. 25 In Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 at 501-502, Merkel J identified the following considerations as potentially being relevant to the determination of an appropriate penalty for contempt of Court: The contemnor's personal circumstances; The nature and circumstances of the contempt; The effect of the contempt on the administration of justice; The contemnor's culpability; The need to deter the contemnor and others from repeating contempt; The absence or presence of a prior conviction for contempt; The contemnor's financial means; Whether the contemnor has exhibited general contrition and made a full and ample apology; Whether the conduct falls within the most serious category of criminal contempt cases such as to warrant the imposition of a term of imprisonment; and Whether or not imprisonment is a "last resort" penalty in the circumstances of the case. See also Australian Competition and Consumer Commission v Info4PC.Com Pty Ltd (2002) 121 FCR 24 at 54; Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2003) 204 ALR 537 at 540. 26 Ms Lurie sought to raise a number of issues which, she submitted, should be brought into account in her favour in the process of fixing penalties for her offences. She relied on evidence in the affidavit which she affirmed in advance of the penalty hearing. That evidence was that: "I have suffered immensely financially, mentally, emotionally and even physically as a result of these whole proceedings. The Applicant has succeeded in their plan to destroy my family and my company. I have no assets apart from my car and I am a pensioner receiving long term illness pay from Centrelink … as my only form of constant income. My health has deteriorated severely with my migraines becoming as frequent as 24 days a month with an array of oral and intravenous drugs for pain management and I have been diagnosed with severe osteoarthritis in my left shoulder that is so debilitating that I require part time care with simple tasks as well as shoulder replacement surgery … . My company All Rounder Investments has no real assets bar 2 cars valued at approximately $18,000 collectively which [my son] Vlad and I have been paying for the finance since June 2011 and are in the process of buying from the company. The company has not been operational since 15 June 2011 and has not been registered for GST since 1st July 2011 … . I have a massive bill … outstanding to my lawyers apart from the hundred and five thousand already paid that the company and I simply cannot pay resulting in a caveat being placed on [my husband] Yury's property. Thus putting a massive strain on our already crippled relationship. Nor do I have any real prospects of future employment as my health does not allow me to labor and my poor communication skills and no formal education eliminate likelihood of other type (sic) of employment. I am genuinely apologetic for the mistakes I have made and swear to never again be so careless." Documentary evidence annexed to the affidavit supported claims that: Ms Lurie was receiving a Newstart allowance plus supplements of $619.80 per fortnight. This amount was due to increase to $634.60 per fortnight from 16 April 2013. Her personal banking account had a balance of $782.55 on 15 February 2013. All Rounder has not operated since 15 June 2011. All Rounder had a debit balance of $1,286.88 in a Westpac account on 22 March 2013. Accounts totalling $105,000 had been paid by All Rounder to its solicitors in the period between 10 March 2011 and 20 January 2012. Ms Lurie suffers from a variety of medical conditions including severe migraines, osteoarthritis in the shoulder, hypertension and adjustment disorder with anxiety and depression. Some of these complaints cause her serious pain for which she requires painkilling medication. 27 Ms Lurie submitted that she was "immensely apologetic" for her actions. She submitted that her contravention of order 4 resulted from a misunderstanding of the terms of the order. She further submitted that her offending had not taken place in order that she or All Rounder could achieve any monetary gain. She contended that there was "no need for deterrence" because there existed "no danger of Ms Lurie reoffending as there are no relevant injunctions as (sic) should never have been." 28 Although Ms Lurie has apologised to the Court she has, as Connect TV has asserted, failed to demonstrate any remorse for her conduct save for the affect of the legal proceedings on her health, her marriage and her financial situation. She continues to challenge the efficacy of the orders by which she and All Rounder were bound notwithstanding the rejection of this aspect of her defence in Connect TV (No 3) at [119]-[120]. The many inconsistencies in Ms Lurie's evidence suggest a lack of candour on her part which is also suggestive of lack of contrition. 29 I am prepared to accept, in Ms Lurie's favour, that she may have misunderstood, and been misadvised about, the extent of the obligations imposed on All Rounder by Order 4. This, as the Full Court pointed out in Universal Music Australia Pty Ltd v Sharman Networks Limited (2006) 150 FCR 110 at 120, is a factor which may be "highly relevant" when determining an appropriate penalty for her contravention. 30 Ms Lurie submitted that her health is presently in a pitiful state as a result of the proceeding. She sought to support this assertion by filing medical reports from her general practitioner and some specialists. Those reports confirmed that she suffers from the conditions which I have already identified. She requires surgery to relieve the arthritic condition in her shoulder. In the meantime she requires medication to ease pain in her shoulder and other pain caused by the migraine headaches. 31 Ms Lurie's health is a consideration which must be taken into account in the sentencing process. In R v Smith (1987) 44 SASR 587, King CJ (with whom Cox and O'Loughlin JJ agreed) said (at 589): "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." See also R v Van Boxtel (2005) 11 VR 258 at [29]; Bailey v Director of Public Prosecutions (1988) 78 ALR 116. 32 The medical evidence did not suggest that there existed a serious risk that imprisonment would have a gravely adverse affect on Ms Lurie's health. It is, however, open on the medical evidence to conclude the imprisonment will impose a greater burden on Ms Lurie by reason of her state of health (although no submission to this effect was made). 33 Senior counsel for Connect TV accepted that the medical conditions from which Ms Lurie suffers would cause any imprisonment to weigh more harshly on her than it would on a person not afflicted by these conditions. He contended, however, that the burden would not be great and that prison authorities were well used to catering for the needs of prisoners who suffer from mental and physical ailments. 34 In my view the state of Ms Lurie's physical and mental health is a consideration which tends against the making of a custodial sentence but which would not preclude the imposition of a period of imprisonment if other relevant considerations justified such a sentence. 35 There are, however, in this case, additional mitigatory factors. Ms Lurie is 51 years old. She has no prior convictions. Before establishing All Rounder she had a long history of gainful employment in a business which she conducted with her husband. This business required long hours in uncongenial surroundings and heavy lifting which took its toll on her physical well being. 36 Individual deterrence is not an issue which weighs heavily in circumstances in which Ms Lurie's health and financial situation render it unlikely that she will be able to engage in future business activities. All Rounder has not traded for almost two years. 37 There remains, nonetheless, a need for general deterrence in all cases in which a contempt of court has been established. 38 Both Ms Lurie and All Rounder have limited financial means. Ms Lurie's only regular income is provided by her Newstart allowance. All Rounder's only significant assets are two motor cars valued at about $18,000. Both respondents have incurred substantial legal costs in defending the proceeding. Impecuniosity cannot, however, justify the imprisonment of a contemnor where the appropriate penalty would otherwise be a fine: see Jones v Toben (No 2) [2009] FCA 477 at [83] (per Lander J). 39 In determining penalties the Court must bear in mind that imprisonment is to be a penalty of last resort and give serious consideration as to whether any alternative to imprisonment would be appropriate: see Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596 at 619 [54] (per Gray J). The contempts in this case are of varying degrees of seriousness. None of them, in my view, fall into the most serious category of criminal contempt cases which would warrant the imposition of a term of imprisonment (with time to be served) on Ms Lurie. 40 I regard Ms Lurie's diversion of business to her son to be the most serious of the three contempts. Her contact with Mr Volchek was unsolicited. It was done anonymously. The contact was made at a time when Ms Lurie was well aware that All Rounder could not provide Russian television services but she chose to divert business to her son. I consider that this offence warrants the imposition of a sentence of one month's imprisonment to be wholly suspended on the condition that Ms Lurie refrain from contravening any of the orders made by the Court and binding on her for a period of two years from the date of the Court's orders. All Rounder should be fined $20,000 for this offence. 41 The next most serious offence was the advertising of Ms Lurie's name and contact details on the Kartina TV website. Ms Lurie was well aware that this was occurring at least until 25 February 2011 and did little, if anything, to seek to procure the removal of her entry from the list of dealerships. This advertising continued for some months after Ms Lurie had assured the Court that she had done everything within her power to comply with the Court's orders. This contempt warrants the imposition of fines of $10,000 on both Ms Lurie and All Rounder. 42 The least egregious of the contempts is Ms Lurie's failure to make contact with Marina Gore for the purpose of persuading her to cease using the Russian television services. Ms Gore's subscription was due to expire within a few weeks of the making of the Court's orders and it was not renewed. Ms Lurie's inaction, whilst being deliberate and in breach of order 4, caused no harm to Connect TV's interests. I consider that a $2,000 fine is appropriate for this offence. 43 Connect TV seeks an order that All Rounder and Ms Lurie pay its costs on an indemnity basis. It does so because it has expended its own funds in order to establish contraventions of the Court's orders and in seeking to vindicate the authority of the Court. As Logan J observed in Plastec Australia Pty Ltd v Plumbing Solutions and Services Pty Ltd (No 4) [2012] FCA 657 at [36] "the usual, but not mandatory order in a case such as the present is for an applicant to have its costs on an indemnity basis". Such an order, is, in my view, appropriate in the present case. 44 Mr Vladimir Grinberg sought an order that Connect TV pay his costs of defending the contempt charges which had been laid against him. 45 Connect TV opposed this application. It submitted that the charges had been laid against Mr Grinberg for the same reasons that it had laid charges against All Rounder and Ms Lurie. It contended that Mr Grinberg had been "properly joined" having regard to his suspicious behaviour. It pointed to his active involvement in the business of All Rounder and his later establishment of another business in order to take advantage of what he saw as a loophole in the Court's orders. He had also used a false name (that of Connect TV's solicitor) to establish his new business. It was only during the trial that it had emerged that Mr Grinberg had not been acting as the servant or agent of All Rounder when he engaged in these activities thereby preventing adverse findings against him. 46 The power of the Court to award costs is conferred by s 43(1) of the Federal Court of Australia Act 1976 (Cth). The power is discretionary in nature and is unfettered save for the requirement that it be exercised judicially. Proceedings for contempt of court bear many of the features of summary criminal proceedings. The prosecutor is required to lay charges. Those charges must be proved to the criminal standard. The principal penalties available to the Court in the event of the charges being proven (imprisonment and fines) are the same as those commonly encountered in the mainstream criminal jurisdiction. 47 The leading authority on the award of costs to a successful defendant in a summary criminal proceeding is Latoudis v Casey (1990) 170 CLR 534. Although the reasons of the members of the High Court in that case differed in emphasis it would, as the Full Court of this Court held in Li v Chief of Army (No 2) [2013] FCAFC 40 at [22] "be unwise to assume that in criminal proceedings, costs follow the event." 48 Mason CJ held that "in ordinary circumstances, an order for costs should be made in favour of a successful defendant." His Honour, however, accepted that there could be circumstances in which it would not be just and reasonable to award costs against a prosecutor. He cited the example of a defendant who by his or her conduct, following the commission of the offence, effectively brought the prosecution upon himself or herself: see at 543-4. 49 McHugh J (at 568-9) expressed similar views. His Honour concluded that "a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for the payment of his or her costs because it is just and reasonable that the informant should reimburse him or her for liability for costs which have been incurred in defending the prosecution." His Honour however stressed that a successful defendant in summary proceedings "has no right to an order for costs." Toohey J (at 565-6) identified a number of circumstances in which "it would not be unjust or unreasonable that the successful defendant should bear his or her own costs or, at any rate, a proportion of them." 50 Dawson J (at 561) expressed views which were less favourable to a successful defendant. His Honour said that: "All other things being equal, the mere acquittal of a defendant ought not to result in an order for costs being made in his favour against a police informant." His Honour also observed that "a successful defendant in summary proceedings for an offence can, in my view, have no expectation as a general rule, unlike a successful party in civil proceedings, that costs will be awarded in his favour." 51 Despite the differences in emphasis their Honours' reasons have at least two things in common. They all affirm the discretionary nature of the power to award costs in summary criminal proceedings and they held that, in exercising the discretion a Court is required, having regard to all of the circumstances of the particular case, to determine whether it is just and reasonable to make an award in favour of the successful defendant. 52 Mr Grinberg represented himself, All Rounder and Ms Lurie at the hearing of the contempt charges. Mr Grinberg succeeded at trial because he was not bound by the Court orders except in his capacity as a servant or agent of All Rounder. Connect TV was unable to establish beyond reasonable doubt that Mr Grinberg's impugned conduct was carried out in that capacity as distinct from the proprietor of his own business. Mr Grinberg was put to time and expense in defending the charges. 53 On the other hand Connect TV has acted bona fide and in the public interest in laying charges against Mr Grinberg. Whilst the first set of charges against All Rounder were awaiting hearing Mr Grinberg established a new business which was designed, as he frankly admitted, to "offer the same Russian internet television products that All Rounder had offered to its customers." Having established the business he promoted it and personally installed facilities so that customers could have access to the programming. He used a vehicle owned by and registered to All Rounder in carrying out the installation work. His activities are outlined in greater detail in Connect TV (No 3) at [69]-[80]. When these activities became known to Connect TV it laid the charges against Mr Grinberg. Connect TV was aware that Mr Grinberg was or had been an employee of All Rounder. Not surprisingly it associated Mr Grinberg's activities with All Rounder. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Connect TV Pty Ltd v All Rounder Investments Pty Ltd

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