For Applicant: Mr. P. Marzella of counsel, instructed by Ferraro and Co. Pty. Ltd.

1 The Second Respondent, Versaci Homewares (Vic) Pty Ltd, which I will refer to as "Versaci Homewares", has been charged with contempt by the Applicant, Frances Cua. The alleged contempt is a failure to comply with orders made by me on 5th September 2005 and in particular Order 3, which required the filing and serving of an affidavit setting out a number of details concerning assets, bank accounts and the like. At that time Versaci Homewares, which then had legal representation, was added as a party and the orders made also embraced it. Whilst the orders are not shown as being by consent, my distinct recollection is that they were in fact drafted by counsel and the appearance and wording of them would confirm this. They include that the matter was fixed for hearing on 7th October 2005 before Senior Member Steele. In any event, Order 3 was not complied with by 30th September 2005, which was the date ordered for compliance.

2 On 5th October 2005, I ordered that the matter be withdrawn from the list of cases on 7th October 2005 and be re-listed on 24th October 2005. I extended the time for the filing and service of the affidavit to 12th October 2005.

3 On 24th October 2005, Senior Member Steele found that there had still been no compliance with my order of 5th September 2005. She extended time to 7th November 2005.

4 On 1st December 2005, Senior Member Steele found that there had still been no compliance with my order of 5th September 2005 and directed the Registrar to list the matter before a judicial member as there may have been a contempt. Thus, to this point of time there had been three extensions and no compliance with the order of 5th September 2005.

5 The matter came on before me again on 9th February 2006 and there had still been no compliance. On that occasion, I extended time to 2nd March 2006 and also directed that any affidavit relating to why there had been no compliance be filed by that date. By 2nd March 2006, there had still been no compliance and the matter was adjourned to 10th April 2006.

6 On 10th April 2006, the matter came on before Deputy President Levine and yet again there had been no compliance with my order. The matter was refixed before me to deal with the contempt matter at the earliest possible opportunity. That opportunity was today and there has still been no compliance.

7 Mr McDougall, the director who has consistently represented Versaci Homewares, had the charge explained to him. I might say that it had been foreshadowed for some time and the precise charge formulated in writing on 23rd March 2006. One date in the charge was amended at the hearing before Deputy President Levine, at which Mr McDougall was recorded as having been present, that being on 10th April 2006. There is no suggestion that Mr McDougall or his company are not aware of or do not understand the charge and this was at no stage suggested. To err on the side of caution, I again read the charge to him. On behalf of the company, he pleaded not guilty.

8 The only defence, delivered at the commencement of the hearing, was technical and misconceived. It was based upon the fact that the draft charge prepared by the Applicant's solicitors was signed by a firm rather than by an individual solicitor. I endeavoured to explain to Mr McDougall that the defence was without merit. The Legal Profession Act 2004 permits the incorporation of solicitors. In any event, Mr Ferraro, the Applicant's solicitor, gave evidence that he was a director of Ferraro and Company Pty Ltd and that he held a practicing certificate. This is apart from the fact that there is no requirement for such a charge to be signed by a legal practitioner, or at all. The essential ingredient of s.137 is that the person before the Tribunal be informed of the contempt with which that person is charged. This was done, and done clearly.

9 After hearing Mr Ferraro and considering submissions, I ruled against this technical defence. The Applicant presented her case. There was no cross-examination of Mr Ferraro, who also adopted and expanded upon his supporting affidavit. Despite being twice offered the opportunity, Mr McDougall gave no evidence and called no witness. No apology has been offered. No explanation has been given for the non-compliance. Mr McDougall's only submission was to the effect that the Applicant had got all the documents that she was going to get. There was no explanation or apology in relation to the failure to comply with the order of 5th September 2005 despite the number of extensions of time granted.

10 Contempt is a very serious matter. Mr Marzella, on behalf of the applicant, accepted that it must be proven beyond reasonable doubt and I have approached the matter on that basis. Pursuant to s.137 of the Victorian Civil and Administrative Tribunal Act 1989, a person is guilty of contempt of this Tribunal if it acts in a way that would constitute contempt of the Supreme Court. In my opinion, what was done, or not done, by Versaci Homewares in the present case would constitute contempt of the Supreme Court were the matter proceeding there - see Order 66 of the Supreme Court Rules. I am satisfied beyond reasonable doubt that the Second Respondent, Versaci Homewares (Vic) Pty Ltd, is guilty of the contempt with which it is charged. It has simply refused to comply with an order of the Tribunal despite being given many opportunities, and I have set out the history above. It has offered no apology, evidence, or satisfactory explanation of its conduct and I find the charge made out.

11 Whilst bearing in mind the seriousness of the contempt, which goes back some time, and that the company ignored various opportunities in the meantime to comply with the order, and bearing in mind that the maximum penalty for a corporation can be a fine exceeding $0.5 million, there is nevertheless no point in imposing a fine that is either so low as to not reflect the fact that the contempt is contempt of a tribunal or a court, not of an individual, or in imposing a fine that is either unjustly or crushingly high. In the circumstances, the fine imposed upon Versaci Homewares (Vic) Pty Ltd is $5,000.

After some discussion, a stay of 28 days was granted, and a decision in relation to the Applicant's costs was reserved.