The 27 charges are established beyond reasonable doubt
187 Having disposed of Ms Crocker's two main contentions about her undertaking, it remains for me to address the question whether Infa-Secure has proved its 27 charges against Ms Crocker to the requisite standard, namely beyond reasonable doubt. For the reasons that follow, I consider it has.
188 First, on an objective and fair reading of the undertaking, I consider its meaning is clear and unambiguous. As I have already observed above, by its text, it applies to communications with "any person", which (putting aside the exceptions discussed below at [192]) extends to, and includes: any party to Ms Crocker's proceeding; any retailers, whether parties to the proceeding, or not, and whether they were already aware of the proceeding, or not; and to anyone else. However, for the reasons set out at [173] above, I do not consider it extends to the lawyers for any party to either proceeding, nor to Infa-Secure itself, as the applicant in this proceeding.
189 Secondly, the ordinary meaning of the word "communicate" extends to include email communications. I also consider it includes the act of sending an email to an operating and current email address. In my view, that act constitutes a communication with the person or persons using that email address.
190 Thirdly, in context, the ordinary meaning of the words in the undertaking: "the subject matter of [the] proceeding[s]", plainly extends to, and includes, the matters outlined in the originating application in both proceedings and the statement of claim filed in Infa-Secure's proceeding. While Ms Crocker did not file her statement of claim until mid-February 2015, I do not consider that fact affects the extent of the matters covered by these words. That is so because the aforementioned documents together relate to the whole of the history of the dealings between Ms Crocker and Infa-Secure, and between each of them and any traders involved with the sale of the SECURAP product. Thus, I consider the following non-exhaustive list of matters discussed in the various emails fell squarely within the words "the subject matter of [the] proceeding[s]":
(a) the allegations of theft, fraud, crime and counterfeiting included in the emails for Charges 1, 3, 6, 8, 9, 10, 11, 13, 17, 18, 19 and 24;
(b) the observations about Infa-Secure's Securall product discussed in the emails for Charges 2, 7 and 24;
(c) Ms Crocker's claims that the SECURAP product was her "property" included in the emails for Charges 2, 4, 5, 6, 14, 15, 17, 19 and 24;
(d) the dire consequences Ms Crocker threatened for those retailers selling the SECURAP product supplied by Infa-Secure included in the emails for Charges 1, 2, 4, 6, 11, 12, 16, 17, 18 and 20 to 28 (inclusive), but excluding Charge 25; and
(e) the claims Ms Crocker made about the use of "my barcode" in connection with the SECURAP product made in the email for Charge 17.
191 For these reasons, I consider each of the emails relating to each of the 27 charges constituted a communication with a person regarding the subject matter of either, or both, of the two proceedings in question.
192 Having reached this conclusion, the next matter to be considered is whether any of the emails fell within any of the exceptions stated in clauses (a) to (c) of the undertaking. As with the body of the undertaking, I consider the ordinary meaning of the words of those exceptions is clear and unambiguous. By their terms, they define communications made for two very specific purposes: to obtain legal advice; and to serve a document filed in the Court on a party to either proceeding, or to otherwise serve a document, including originating service of a document. Outside of those specific purposes, it is clear that those exceptions did not permit communications of any kind. In other words, the exception to serve a document in either proceeding could not be used as an opportunity to engage in communications unrelated to that purpose. That includes gratuitous attacks on Infa-Secure, or threats to pursue retailers for damages, whether those retailers were parties to the proceedings or not.
193 As it happened, the latter is what Ms Crocker did on each of the four occasions when she genuinely served a document filed in the Court within the terms of the exceptions stated in clause (b) of the undertaking. So much is clear from the emails she sent in relation to Charges 3 (see at [55] above), 4 (see at [57] above), 5 (see at [60] above) and 16 (see at [103]-[105] above). Further, none of the emails associated with any of the other charges involved a genuine attempt to serve a document filed in the Court within the terms of that exception. On some occasions, Ms Crocker clearly made a vain attempt to cloak the communication with a service-related purpose. That occurred with the following emails:
(a) those related to Charges 1 and 2, where she mentioned the service of documents, but did not actually serve any documents;
(b) those related to Charges 8 to 10 (inclusive), where she "served" emails she had filed in the Court in a misguided attempt to bring herself within the terms of the exception. This failed because the exception clearly only applied to a document that had to be filed in the Court in accordance with the Rules, not to an email that was "filed" for the ulterior purpose of bringing herself within the exception in clause (b); and
(c) that related to Charge 15, where she served a draft statement of claim rather than "a document filed in the Court".
194 In the remainder of her emails, Ms Crocker did not appear to bother cloaking them with a service-related pretext. That is the case with the emails related to Charges 6 (see at [69] above), 7 (see at [74] above), 12 (see at [88] above), 13 (see at [93] above), 14 (see at [96] above), 17 (see at [110] above), 18 (see at [117] above), 19 (see at [121] above), 20 (see at [125] above), 21 (see at [131] above), 22 (see at [135] above), 23 (see at [138] above), 24 (see at [144] above), 26 (see at [150] above), 27 (see at [153] above) and 28 (see at [158] above).
195 As to the exception stated in clause (a) of the undertaking, none of the emails associated with any of the charges involved a communication with a person for the purpose of seeking legal advice within the terms of that exception.
196 So, in conclusion on this aspect, I do not consider any of the emails associated with any of the charges fell within any of the exceptions stated in clauses (a) to (c) (inclusive) of the undertaking.
197 Finally, it is necessary to consider whether, despite Ms Crocker not having specifically raised this matter, it could be said that any of her conduct did not involve a deliberate act or, conversely, was "casual, accidental or unintentional". In this respect, I bear in mind that, on the one hand, Infa-Secure does not need to prove "specific" intent on Ms Crocker's part and, on the other hand, this question does not allow for Ms Crocker to rely upon a misconstruction of the terms of her undertaking to escape responsibility for any breaches of it (see the discussion at [129]-[130] in Salvato at [162] above). For the following reasons, I do not consider any of Ms Crocker's conduct can be characterised as "casual, accidental or unintentional". First, there are her spurious attempts to justify her conduct by claiming that the undertaking did not extend to the parties to the proceedings and various other persons (see at [169] above). In this regard, I consider Ms Crocker's exchanges with Dowsett J on 12 January 2015 are particularly telling (see at [39]-[41] above). In those exchanges, his Honour was at pains to ensure that Ms Crocker understood the seriousness of giving an undertaking to the Court and the dire consequences that may follow if she breached that undertaking. Furthermore, they clearly show that Ms Crocker did, indeed, understand what she could and could not do within the terms of the undertaking.
198 Secondly, there is the extravagance of the language Ms Crocker used in most of the emails that found the 27 charges against her. This manifests a deliberate attempt to harm Infa-Secure and to threaten those retailers who dealt with Infa-Secure in connection with the SECURAP product.
199 Thirdly, it is significant that Ms Crocker ignored the warnings she received from Chrysiliou Lawyers about her breaches of the undertaking throughout the period in question (see at [35] above).
200 Fourthly, I do not consider any reasonable person could have genuinely interpreted the comments I made to Ms Crocker on 5 February 2015 in the way she did in the email related to Charge 13 (see at [90]-[91] above). Similarly, I do not consider any reasonable person could have genuinely interpreted those comments in the way she did in the email related to Charge 15 (see the emphasised text at [98] above).
201 Fifthly, there are the statements in some of the emails where Ms Crocker indicates that she is aware that her conduct is probably in breach of her undertaking: see the email relating to Charge 18 (at [116] above), the email relating to Charge 19 (at [120] above) and the email relating to Charge 21 (at [127] and [129] above).