NSW Commissioner for Fair Trading v Rixon

Background

1. At various times Mr Rixon had been carrying out residential building work as defined in the Home Building Act 1989 (NSW) without being licensed to do so. The Commissioner for Fair Trading sought injunctions against Mr Rixon to prevent him from so doing. Ultimately consent orders were made on 17 April 2013 in these terms: 1. Pursuant to Section 138 of the Home Building Act 1989 (NSW) ('the HBA'), the defendant is permanently restrained in New South Wales from conducting, or being engaged in, or being involved in, whether or not in a personal capacity, as a sole trader, as a trustee of a trust, as a beneficiary of a trust, in a partnership, through the agency of another person or chain of other persons, through an employee of the defendant, through a company or the agency of a company (whether or not that company is one of which the defendant is an officer or shareholder), through a "close associate" as defined in the HBA or Home Building Regulations 2004 ('the Regulations'), or in any capacity otherwise, the following conduct: (a) Contracting to perform any residential building work or any specialist work as defined in the HBA or the Regulations when the defendant, or any person or entity that the defendant is involved with as set out in 1. above does not hold a valid contractor licence in contravention of Section 4 of the HBA; (b) Representing (explicitly or implicitly), by words or conduct (including silence) that the defendant, or any person or entity that the defendant is involved with as set out in 1. above, holds a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations which is not, in fact, held by the defendant or person or entity that the defendant is involved with and seeking to perform residential building work or specialist work in contravention of Section 5 of the HBA; (c) Representing (explicitly or implicitly), by words or conduct (including silence) that the defendant, or any person or entity that the defendant is involved with as set out in 1. above, holds a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations which is not, in fact, held by the defendant or person or entity that the defendant is involved with in contravention of Section 17 of the HBA; (d) Performing residential building work, or specialist work as defined in the HBA or the Regulations, where the defendant, or any person or entity that the defendant is involved with as set out in 1. above, is unlicensed in contravention of Section 12 of the HBA; (e) Performing residential building work, or specialist work, as defined in the HBA or Regulations where the defendant, or any person or entity that the defendant is involved with as set out in 1.above, is unqualified in contravention of Sections 13 of the HBA; (f) Requesting or accepting any payment (by way of deposit, or otherwise) for the performance, or proposed performance, of residential building work, or specialist work as defined in the HBA or the Regulations by the defendant, or any person or entity the defendant is involved with as set out in 1. above where the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not hold a valid contractor licence, or valid tradesperson or supervisor certificate as defined in the HBA or the Regulations. 2. Pursuant to Section 233 of the Australian Consumer Law 2010 ('the ACL'), the defendant is permanently restrained in New South Wales from conducting, or being engaged in, or being involved in, whether or not in a personal capacity, as a sole trader, as a trustee of a trust, as a beneficiary of a trust, in a partnership, through the agency of another person or chain of other persons, through an employee of the defendant, through a company or the agency of a company (whether or not that company is one of which the defendant is an officer or shareholder), through a "close associate" as defined in Home Building Act 1989 ('the HBA') or the Home Building Regulations 2004 ('the Regulations') or in any capacity otherwise, the following conduct: (a) Representing (explicitly or implicitly), by words or conduct (including silence) that the defendant, or any person or entity that the defendant is involved with as set out in 1. above, holds a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA which is not, in fact, held by the defendant or person or entity that the defendant is involved with and seeking to perform residential building work or specialist work as defined in the HBA, in contravention of Section 18 of the ACL; (b) Contracting to perform any residential building work or any specialist work as defined in the HBA or the Regulations when the defendant, or any person or entity that the defendant is involved with as set out in 1. above does not hold a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations, in contravention of Section 18 of the ACL; (c) Performing residential building work, or specialist work, where the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not hold a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations, in contravention of Section 18 of the ACL; (d) Quoting to perform residential building work, or specialist work, where the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not hold a valid contractor licence, or valid supervisor or tradesperson certificate as defined by the HBA or the Regulations, in contravention of Section 18 of the ACL; (e) Accepting payment, by way of monies or otherwise, as a deposit for the performance of residential building work, or specialist work, where the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not hold a valid contractor licence, or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations, in contravention of Section 18 of the ACL; (f) Requesting any payment or consideration for the performance of any residential building work or any specialist work when the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not hold a valid contractor licence or valid supervisor or tradesperson certificate as defined in the HBA or the Regulations, in contravention of Section 18 of the ACL; (g) Accepting any payment or consideration for any building work (within the meaning of residential building work or specialist work in the HBA, or the Regulations, or otherwise) or landscaping work, when the defendant, or any person or entity that the defendant is involved with as set out in 1. above, in circumstances where there are no reasonable grounds for believing that goods or services will be able to be provided within the time specified, or a reasonable time, in contravention of Section 36 of the ACL; (h) Accepting any payment or consideration for any building work, or proposed building work (within the meaning of residential building work or specialist work in the HBA or the Regulations, or otherwise) or landscaping work, or proposed landscaping work, when the defendant, or any person or entity that the defendant is involved with as set out in 1. above, where there are not reasonable grounds for believing that the goods or services can be provided within the time specified, or a reasonable time, in contravention of Section 36 of the ACL; (i) Engaging in conduct by way of the provision of building work (within the meaning of residential building work or specialist work in the HBA or the Regulations, or otherwise) or landscaping work when the defendant, or any person or entity that the defendant is involved with as set out in 1. above, does not provide services which are reasonably fit for the purpose for which the services are being acquired, in breach of the consumer guarantee in Section 61 of the ACL. 3. Each party is to pay their own costs of the proceedings.
2. On 24 September 2013 the NSW Commissioner for Fair Trading by Notice of Motion filed that day sought an order against Mr Rixon that he was guilty of criminal contempt of this Court for having knowingly breached the consent orders made on 17 April 2013. That Notice of Motion came before Garling J. On 9 May 2014 Garling J made the following order: Mr Matthew Rixon, by his conduct in the periods and with respect to each of the five properties specified in the Statement of Charge, is guilty of contempt of Court, in that he was in breach of the Court's orders dated 17 April 2013.
3. In the course of his judgment (Commissioner for Fair Trading v Rixon (No. 2) [2014] NSWSC 431) Garling J said: [4] On 17 April 2013, the Court made orders which accorded with a five page consent judgment. [5] The consent judgment was signed by the solicitor for the Commissioner, and by Mr Rixon himself. There were two parts to the orders. The first related to the provisions of the Home Building Act 1989, and in particular s 138. The second, related to the provisions of s 233 of the Australian Consumer Law 2010. [6] It is unnecessary here to set out the precise terms of each of the orders because the orders are set out in the Schedule to this judgment. However, in essentially identical terms, the orders prohibited Mr Rixon by means of a permanent injunction, from conducting, or being engaged in, or being involved in, in any capacity, whether directly himself, through the agency of another person or an employee, or through a company or other agency, from contracting to perform any residential building work, whilst ever he did not hold a valid contractor licence; representing by words or conduct that he or anybody with whom he was associated held a valid contractor licence or other appropriate certificate, when in fact that was not so; performing residential building work whilst ever he or any associated entity, was unlicensed; and finally, requesting or accepting payment for the performance or proposed performance of residential building work whilst ever he was not licensed. [7] The orders prohibiting Mr Rixon from doing residential building work also prohibited him from contravening various provisions of the Australian Consumer Law, in particular s 36, which required that a condition upon accepting payment or consideration for any building work was that Mr Rixon, or any entity through which he was working, had to have reasonable grounds for believing that the services would be able to be provided within the time specified in the agreement, or else a reasonable time. As well, the orders addressed the provisions of s 61 of the Australian Consumer Law, which required that the residential building work provided needed to be reasonably fit for the purpose for which the services were being acquired. [8] The orders were based on a document described as "Consent Judgment". It is regrettable, because it is productive of potential confusion, that parties choose to express their agreement in ways which are not procedurally accurate. There was no judgment actually entered in these proceedings. A judgment is the finalisation of a claim brought in proceedings where the end result is, in substance, an award of damages or else the rejection of a claim for an award of damages, at which point judgment for a defendant is entered. The original proceedings sought orders restraining Mr Rixon from behaving unlawfully. The resolution of such a claim is by the parties signing, or otherwise consenting to, short minutes of order, which enables orders to then be made by the Court, and incorporated into the Court record. [9] However, in this case having regard to everything which has happened, and in light of the matters to which I will in due course refer, I am satisfied that there was no confusion at all in the mind of Mr Rixon as to what the Court had done, and as to what he was, or was not, permitted to do. [10] The essence of the Court orders was that so long as he was unlicensed, Mr Rixon could not undertake "residential building work" as that term is defined in either the Home Building Act, or the regulations made under that Act. [11] Section 3 of the Home Building Act includes the following definition: "Residential building work means any work involved in, or involved in co-ordinating, or supervising any work involved in: (a) the construction of a dwelling; or (b) the making of alterations or additions to a dwelling; or (c) the repairing, renovation, decoration or protective treatment of a dwelling. It includes work declared by the regulations to be roof plumbing work or specialist work done in connection with a dwelling and work concerned in installing a prescribed fixture or apparatus in a dwelling (or in adding to, altering or repairing any such installation)." [12] Clause 5 of the Home Building Regulation 2004 extends the definition of a dwelling for the purposes of s 3(1) of the Home Building Act so that it includes stairways, passageways and the like, which provide access to a dwelling, decks, porches, verandas, pergolas and the like, and fences and gates. [13] Each of the five properties with which these proceedings are concerned, were dwellings within the meaning of s 3 of the Home Building Act.
4. There was no appearance for Mr Rixon at the hearing before Garling J. After judgment was given on the finding of contempt, the proceedings were adjourned for a sentence hearing. Mr Rixon appeared at the sentence hearing variously by counsel, by a solicitor and in person.
5. On 19 September 2014 Garling J delivered judgment and imposed the following sentence on Mr Rixon (see Commissioner for Fair Trading v Rixon (No.3) [2014] NSWSC 1279): (1) I impose on Mr Rixon a term of imprisonment for a period of 18 months to commence on 19 September 2014 and to conclude on 18 March 2016. (2) I suspend the term of imprisonment upon the following conditions: (a) that throughout the period of the term, Mr Rixon is of good behaviour; (b) that throughout the period of the term, Mr Rixon complies with the orders of the Court made on 17 April 2013; (c) that throughout the period of the term, Mr Rixon undertakes 300 hours of community service, which must be completed in accordance with the directions of, and to the satisfaction of, Hornsby Community Corrections Office. (3) I direct that Mr Rixon is to report to the Hornsby Community Corrections Office at 61 Hunter Street, Hornsby no later Wednesday 24 September 2014. (4) I order Mr Rixon to pay the plaintiff's costs of the proceedings on an indemnity basis.
6. The Statement of Charges in the present Notice of Motion relevantly provides: The Commissioner for Fair Trading alleges that the Defendant is guilty of a number of acts of contempt of this Honourable Court in that: (a) On I4 April 2013, this Honourable Court made Orders against Matthew Geoffrey Rixon (Defendant) by consent a sealed copy of which is attached hereto and marked "A" (Orders). (b) On 19 September 2014 the Defendant was convicted of contempt of court in respect of the Orders and was sentenced to a term of imprisonment of 18 months, suspended on conditions, relevantly that the Defendant be of good behaviour throughout the period of the term of sentence and complies with the Orders. A copy of the judgment of this Court is attached hereto and marked "B" (c) The Commissioner for Fair Trading alleges that the Defendant has acted i. contrary to the Orders, ii. failed to be of good behaviour, and in so doing is in contempt of this Honourable Court 105 St George Parade Allawah NSW 2220 … 3. The Defendant did, on 27 January 2015, request and accept payment in the form of a cheque, number 001965 from Simon Gibara of 105 St George Parade Allawah NSW 2220, for an amount of $3,000.00, being a deposit for residential building work as defined in the Act and the Regulation, undertaken by the Defendant at 105 St George Parade Allawah NSW 2220, between 23 January and 27 January 2015 when the Defendant was not the holder of a valid contractor's licence, or valid supervisor or tradesperson's certificate as defined in the Act and the Regulation, knowingly in contravention of Orders 1(f) and 2(e), (f), (g) and (h) of the Orders. … 5. The Defendant did, on 3 February 2015, request and accept payment in cash from Simon Gibara of 105 St George Parade Allawah NSW 2220, in the amount of $1,000.00 being a payment for residential building work as defined in the Act and the Regulation, undertaken by the Defendant at 105 St George Parade Allawah NSW 2220, between 23 January and 3 February 2015, where the Defendant was not the holder of a valid contractor's licence, or valid supervisor or tradesperson's certificate as defined in the Act, knowingly in contravention of Orders 1(f) and 2(e), (f), (g) and (h) of the Orders. 6. The Defendant did, on 4 February request and accept payment in the form of a cheque, number 001677 from Simon Gibara of 105 St George Parade Allawah NSW 2220, in the amount of $2,000 00 and a further payment of $2,000.00 in cash, each being a payment for residential building work as defined in the Act and the Regulation, undertaken by the Defendant at 105 St George Parade Allawah NSW 2220, between 23 January and 4 February 2015 where the Defendant was not the holder of a valid contractor's licence, or valid supervisor or tradesperson's certificate as defined in the Act and the Regulation knowingly in contravention of Orders 1(f) and 2(e), (f), (g) and (h)jDf the Orders. 7. The Defendant did, on 10 February request and accept payment in the form of a cheque, number 001767 from Simon Gibara of 105 St George Parade Allawah NSW 2220, in the amount of $2,000.00, being a payment for residential building work as defined in the Act and the Regulation, undertaken by the Defendant at 105 St George Parade Allawah NSW 2220 between 23 January and 7 February 2015, where the Defendant was not the holder of a valid contractor's licence, or valid supervisor or tradesperson s certificate as defined in the Act and the Regulation, knowingly in contravention of Orders 1(f) and 2(e) (f), (g) and (h) of the Orders. 8. The Defendant, did personally and through the agency of others, between 23 January and 7 February 2015 perform residential building work at 105 St George Parade Allawah NSW 2220, specifically, the demolition of a brick wall and driveway and the partial erection of a "Colorbond" fence, where the Defendant was not the holder of a valid contractor's licence, or valid supervisor or tradesperson's certificate as defined in the Act and the Regulation, knowingly in contravention of Orders 1(c), (d) and (e) and Order 2(c) of the Orders.
7. The Statement of Agreed Facts signed by Mr Rixon provides: CHARGES 1. The Defendant is charged with being in contempt of the NSW Supreme Court (the Court), specifically that he contravened the Orders of the Court made on 17 April 2013. A copy of the Notice of Motion dated 3 March 2016; Statement of Charges dated 3 March 2016 and Orders of the Court ('the Orders') made on 17 April 2013 are attached to this document. PLEA OF GUILTY 2. The Defendant pleads guilty to Charges 3,5,6,7 and 8 of the Statement of Charges. The Defendant acknowledges that the Plaintiff has encouraged the Defendant to obtain legal advice prior to entering the plea of guilty. The Defendant acknowledges that he has entered the plea of guilty freely and voluntarily. The Defendant admits that he has breached the Orders of the Court made on 17 April 2013, and is in contempt of Court as set out in the said Statement of Charges. 3. Subject to the Defendant's plea of guilty to Charges 3,5,6,7 and 8 of the Statement of Charges being accepted by the Court, the Plaintiff withdraws Charges 1, 2 and 4. AGREED FACTS 4. On 17 April 2013 the NSW Supreme Court made Orders against the Defendant, Matthew Geoffrey Rixon, by consent. 5. On 9 May 2014 the Defendant was convicted of contempt of Court in respect of the Orders in Matter [2014] NSWSC 431, and on 19 September 2014 in Commissioner for Fair Trading v Rixon (No.3) [2014] NSWSC 1279 was sentenced to a term of imprisonment of 18 months, suspended on conditions, relevantly that he be of good behaviour throughout the period of the term of the sentence and perform 300 hours of community service. It is agreed that Mr Rixon has completed the 300 hours of community service well in the specified time. 6. On or about 21 January 2015 Mr Gibara of 105 St George Parade Allawah NSW 2220 (the Premises) saw an advertisement in the name of Affordable Home Services in the Sutherland Shire Leader newspaper which was located in the handyman section of the newspaper. The advertisement clearly included the words "labour and material under $1,000.00". Mr Gibara telephoned the landline number 8916 6190 in the advertisement and spoke to a female and left his contact details with the female. A short time later a male person called Mr Gibara and he and Mr Gibara made arrangements for a person from Affordable Home Services to attend the Premises. 7. On or about 22 January 2015, the Defendant attended with Simon Gibara at the Premises. The Defendant and Mr Gibara discussed the demolition of a brick wall on the left perimeter fence for an amount of less than $1,000.00. Mr Gibara and the Defendant then discussed further work that Mr Gibara wanted done on the Premises including the installation of a concrete driveway and a new colorbond fence. The total cost of that work was later estimated to be $21,000.00. 8. Between 23 January and 7 February 2015, the Defendant, due to further works being undertaken by Mr Gibara at the Premises, states that he accepted a supervisor role reporting directly to Mr Gibara for residential building work at the Premises. The residential building work the Defendant supervised others in performing included the demolition of a brick wall on the boundary line of the property; demolition and removal of the driveway; and the partial erection of a colorbond fence. The Defendant arranged for two persons, Mr Nicholas Lloyd and Mr Rindert Van Der Veen, to perform labouring work at the Premises, by way of the Defendant placing an advertisement on the 'Gumtree' website. 9. Between 27 January and 10 February 2015 the Defendant accepted payments from Mr Gibara to be payed and distributed to trades and suppliers in the total sum of $10,000.00. These payments relate to charges 3, 5, 6 and 7 of the Statement of Charges. 10. The payment accepted by the Defendant were distributed as follows: a. Charge 3. A cheque payment of $3,000.00 on 27 January 2015 which included a payment of $990.00 for the demolition of the brick wall referred to in paragraph 7 above, and a payment of $2,000.00 for the hire of equipment from Kennards Hire, including a jack hammer and a 3 tonne tipper truck which was required for work on the Premises and the remaining amount used for payment of 3 trips to a recycling depot: b. Charge 5. A cash payment of $ 1,000.00 on 3 February 2015, used by the Defendant to pay wages to site labourers: c. Charge 6. A cheque payment of $2,000.00 and a cash payment of $2,000.00 on 4 February 2015, used by the Defendant to pay an earthmoving company and tipping fees for the removal of debris from the Premises; d. Charge 7. A cheque payment of $2,000.00 on 10 February 2015 used by the Defendant to purchase fencing material for installation at the Premises and to pay for site labourers. 12. At all relevant times the Defendant was prohibited from contracting to do residential building work in NSW; from doing or supervising the performance by others of residential building work in NSW; and from receiving payment for doing residential building work or supervising others in the performance of residential building work in NSW, by operation of the Orders of 17 April 2013. The Defendant had knowledge of the Orders.
8. On the basis of Mr Rixon's plea of guilty and his execution of the Agreed Statement of Facts the proceedings came before me for sentence. Although a hearing date was arranged to accommodate Mr Keller of counsel, who I was told on a number of occasions would be appearing for Mr Rixon, Mr Rixon ultimately appeared at the sentence proceedings for himself.
9. The principal evidence at the hearing was the Agreed Statement of Facts. In addition, the Commissioner read a number of affidavits including affidavits of Mr Gibara, the owner of 105 St George Parade, Allawah, affidavits of two persons who carried out work at Mr Gibara's property for Affordable Home Services, an affidavit from a bank officer in relation to cheques drawn on the ANZ Bank related to the work carried out and two affidavits from an investigator at the Commissioner's office. Mr Sarginson of counsel accepted that he could not rely on any evidentiary material in these affidavits that was inconsistent with the Statement of Agreed Facts but said that the affidavits could be used to supplement those Agreed Facts.
10. One affidavit read on behalf of the Commissioner was an affidavit from Simon Andrew Hunter who was a director of a company called Hunter Handyman Pty Ltd. The relevance of Mr Hunter's affidavit was that the numbers appearing on documents for Affordable Home Services as an ABN and an ACN were in fact the ABN and ACN for Mr Hunter's company Hunter Handyman Pty Ltd. Mr Hunter said in his affidavit that he had no knowledge of Affordable Home Services and he did not give any person permission to use those numbers on the Affordable Home Services' documents.
11. I consider that I should not have regard to any criminality identified in the information in Mr Hunter's affidavit when considering the issue of any penalty for contempt by Mr Rixon. His contempt is not concerned with his use of somebody else's ABN and ACN. Any wrongdoing relating to Affordable Home Services wrongly using another company's ABN and ACN is a separate and distinct matter from the contempt for which Mr Rixon has pleaded guilty. That is not to say, however, that the use of the business name Affordable Home Services by Mr Rixon is not otherwise relevant in coming to a view about the appropriate sentence. Further, the use of the ABN and ACN is relevant to the planning involved in the offending.
12. Mr Rixon did not require any of the deponents of the affidavits to be present for cross-examination.
13. Mr Rixon swore no affidavits and led no evidence on the sentence proceedings.
14. The only other evidence before the Court was a certified record and judgment of the District Court of Queensland setting out Mr Rixon's criminal record in that jurisdiction, a certificate of conviction from the ACT Magistrate's Court and the New South Wales police force criminal history for Mr Rixon.
15. I had ordered a pre-sentence report from Community Corrections. That report contained nothing which could assist the Court apart from a statement that he had been assessed as suitable for a community service order and had signed an undertaking in that regard.

Submissions

1. The Commissioner submitted that the contempt involved serious, wilful, conscious and deliberate contravention of the orders of the Court dated 29 April 2013 and that the Court could infer that the contempt was significantly more than inadvertent, technical or accidental. The Commissioner submitted that the Court would have regard to the fact that the contempt was committed within five months of the penalty imposed by Garling J and that it occurred during the period in which the Defendant was on a good behaviour bond and was subject to a community service order.
2. The Commissioner submitted that the total sum of $10,000 accepted from Mr Gibara was significantly above the monetary threshold of work of $5,000 for the definition of "residential building work" under the Home Building Act and the Home Building Regulation 2014 (NSW). The Commissioner submitted that there was evidence that the Defendant had made no financial restitution to Mr Gibara, that there was no evidence that Mr Rixon was unlikely to reoffend or had good prospects of rehabilitation and that there was no evidence that he had shown insight or remorse regarding the contempt. The Commissioner submitted that Mr Rixon had significant criminal antecedents including antecedents in respect of offences involving dishonesty.
3. Mr Rixon submitted that there was no deception in the advertisement placed because he did not intend by it to breach the home warranty laws. Mr Rixon submitted that he was employed to pull down a wall to the value of $1,000 and he was thereafter asked by Mr Gibara to install a fence for $4,000. He submitted that Mr Gibara then asked about earthmoving and three quotes were obtained. In that way he submitted that he became "the in-between person" and Mr Gibara gave him money to pay the operator of the machines for the earthworks.
4. Mr Rixon submitted that the quote for $21,000 was given after the work was done which shows that he did not go out to seek home building work over the value of what was legally allowed.
5. Mr Rixon submitted that his contempt was not deliberate. The work he perfomed was in a supervisory role only. He said that the only reason he breached the orders was by directing the earthmover and taking the payment from Mr Gibara to give to the operator of the machine. He said his breach was not thereby intentional.
6. Mr Rixon submitted that it was not Mr Gibara who made the complaint about poor work. Rather, it was an employee, Mr Lloyd, who made the complaint.
7. As to the timing of his plea, Mr Rixon said that there was only a short window to enter a plea before he became incarcerated in Queensland on remand for charges that subsequently appear on his Queensland criminal record. Mr Rixon said that at the directions hearing on 1 December 2015 by AVL he offered to plead guilty and asked if he could serve any custody period in Queensland while he was being held there on remand. He submitted that his plea of guilty was an acknowledgement of remorse for the offence as was his decision not to cross-examine the witnesses.
8. Mr Rixon submitted that he had not committed any further offences since being dealt with in Queensland and released from custody. Mr Rixon said, in relation to his rehabilitation, that he had been working at the one place for over 12 months and that this was contained in a pre-sentence report.
9. Mr Rixon submitted that his breaches in the present case were nowhere near as bad as what Garling J had to consider because of the way he went about trying to hide his involvement in those earlier breaches.
10. Mr Rixon submitted that an appropriate penalty would be an Intensive Corrections Order because he would be supervised and such an order effectively made him his own gaoler. A fulltime prison sentence would "just set everything back" and would "totally diminish all rehabilitation prospects".

Consideration

1. Part 40.7 Uniform Civil Procedure Rules 2005 (NSW) relevantly provides: 40.7 Service of copy of judgment before committal or sequestration (1) A judgment is not enforceable by committal or sequestration unless: (a) a sealed copy of the judgment is served personally on the person bound by the judgment, and (b) if the judgment requires the person to do an act within a specified time, the sealed copy is so served within that time or, if that time is extended or abridged, within that time as extended or abridged. … (3) The sealed copy of the judgment must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property: (a) where the judgment requires the person to do an act within a specified time, if the person fails to do the act within that time, or (b) where the judgment requires the person to do an act forthwith or forthwith on a specified event, if the person fails to do the act as so required, or (c) where the judgment requires the person to abstain from doing an act, if the person disobeys the judgment. (4) If a person liable to committal or sequestration by way of enforcement of a judgment has notice of the judgment: (a) by being present when the judgment is directed to be entered, or (b) by being notified of the terms of the judgment, whether by telephone, telegram or otherwise, the judgment may be enforced against that person by committal or sequestration without service having been effected in accordance with this rule. (5) The court may dispense with service under this rule. …
2. The orders made 17 April 2013 did not contain the notice referred to in r 40.7(3). It was for that reason that Garling J determined not to impose a sentence of imprisonment on Mr Rixon that would require him to serve that sentence by fulltime custody.
3. Sub-rule (5) enables the Court to dispense with the requirement. However, that is a discretion not to be lightly exercised: Rixon (No. 3) at [11]-[24]; The Prothonotary of Supreme Court of New South Wales v Battye [2017] NSWSC 48 at [9].
4. In the present matter, I consider that the discretion ought to be exercised. I do so because, not only did the reasons in Rixon (No. 3) make clear that, but for that omission, Mr Rixon would have been sentenced to fulltime custody, but also because, when Garling J delivered judgment, his Honour thereafter said this: HIS HONOUR: Mr Rixon, let me make this perfectly plain. If you do not comply with the conditions which I have imposed as the basis for the suspension of your term of imprisonment, you will automatically serve the balance of your term of imprisonment and you will serve such other penalty as may be imposed for any breach of those conditions. Do you understand that?" Mr Rixon replied: "I do, your Honour".
5. I am satisfied that at least from the time Garling J delivered his reasons in Rixon (No. 3), Mr Rixon was fully aware of what Pt 40.7(3) sets out.
6. In Paccar Financial Pty Limited v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622 Rothman J said: [9] Traditionally, the purpose of imposing a penalty for civil contempt was intended to be coercive rather than punitive in nature. In other words, the purpose was to enforce or remedy a right or interest of a party: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd at [106]. [10] However, a question emerges in the circumstance where the breach of the court order or undertaking, which otherwise would amount to civil contempt, is deliberate. If the conduct of the civil contempt were to involve a deliberate defiance or contumacious breach of an order or undertaking, it is considered to be criminal in nature: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 530. Additionally, in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, Beazley JA found that contumacious, wilful and deliberate disobedience of a court order may be characterised as both civil and criminal conduct: see also Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483; Witham v Holloway. [11] Therefore, the purpose of imposing a punishment for such wilful disobedience to a court order is to discipline the offender and to vindicate the authority of the court: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd, at [112].
7. In Rixon (No. 3) Garling J said at [21]: Matters which are relevant to the imposition of a penalty for contempt include; the nature and circumstances of the contempt, the impact or likely impact of the contempt on the administration of justice, the extent of the contemnor's culpability for the conduct in question, and whether the contemnor has demonstrated genuine contrition and proffered a full and ample apology.

Objective seriousness

1. The first consideration is the seriousness of the contempt. By his agreement to plead guilty to five of the charges I find that Mr Rixon deliberately did the acts set out in the charges and did them knowing that they were in contravention of the orders that had been made in April 2013. He could not have been in any doubt that he was not permitted to do the things the subject of the charges because only five months earlier he had been convicted of contempt for performing similar acts in breach of the same orders. Although the advertisement placed by Affordable Home Services with which Mr Rixon was, clearly beyond doubt, significantly involved, was not in itself any breach of the orders, it has some significance for what thereafter happened.
2. The evidence discloses that in response to the advertisement Mr Gibara rang both of the numbers quoted. He did not get an answer on the mobile phone number so he rang the landline. A woman answered the phone saying "Affordable Home and Garden Services". When Mr Gibara asked to speak to the boss she asked for his number and said that they would call him.
3. An hour or so later a man rang saying that Mr Gibara had rung his office, and asked what the man could do for Mr Gibara. Mr Gibara explained that he wanted a brick wall removed and, although being told over the phone it would cost about $500, Mr Gibara said he needed a proper quote. The man asked for Mr Gibara's address. The following day a man turned up at the Allawah address and said he was Matt the builder. Mr Gibara showed him the damaged fence. Matt said it would cost "$21,000 for everything". When he was asked what everything was, Matt said: Demolish and remove the fence. Remove the concrete and supply and fit a new concrete driveway. Supply and fit a new Colorbond fence. Look I'll do it all for $21,000.
4. He promised to complete the work by 10 February or at the worst by 12 February. Mr Gibara asked him to send a proper quote and he provided his email address for that purpose. The following day Matt and two other men came to his property and commenced the work.
5. On 26 January he received an email from Affordable Home Services attaching a quote for $21,000. One minute later he received an invoice for $5,100 being for a deposit of $2,100 and a progress claim for $3,000. Despite the email being sent at 10:07pm payment was said to be due on that day.
6. On 27 January Mr Gibara received another email which attached a document on the letterhead of Affordable Home Services entitled "Authority to proceed". That document set out a payment schedule totalling $21,000.
7. On 27 January Matt went out to the business premises of Mr Gibara and asked him for a deposit for $3,000. Mr Gibara wrote a cheque out payable to cash at the request of Matt.
8. The work continued on a number of days from 28 January. On 3 February Matt said that he needed more money and Mr Gibara gave him $1,000 in cash.
9. On 4 February Mr Gibara paid Matt a cheque for $2,000. Later the same day he gave another $2,000 to Matt in cash.
10. On 6 February 2015 Mr Gibara asked where all the rest of the Colorbond and the posts were. Matt said that he needed "more money to go and pay them and they will deliver it". Mr Gibara gave him a further cheque for $2,000 payable to cash. About half of the fence posts were installed on 7 February 2015. When nobody turned up on 9 February 2015 Mr Gibara rang Matt to ask when the job would be finished.
11. On 10 February Mr Gibara received an email from Matt at Affordable Home Services asking Mr Gibara to deposit $4,000 into an account specified in the email. Shortly afterwards Mr Gibara received another quote from Affordable Home Services for $8,700 to supply and install a new Colorbond carport.
12. On the same day he received another quote for $12,461 from Affordable Home Services for the demolition and removal of existing fence and the supply and installation of a new 1.8m high Colorbond fencing to the right hand side of the properties.
13. Mr Gibara said that he never received the Colorbond material and posts for the fence and none of the concrete work was completed. He said he was never given a certificate of home warranty insurance.
14. Other evidence in the affidavits demonstrates clearly that "Matt" with whom Mr Gibara dealt was Mr Rixon.
15. I have set out this evidence only because the submissions made by Mr Rixon asserted a different arrangement which minimised his wrongdoing. I accept this evidence of Mr Gibara. It is consistent with the Agreed Facts and the plea to the charges by Mr Rixon. I reject the submissions made by Mr Rixon concerning what happened with Mr Gibara (paragraphs [20] and [21] above). I do so for three reasons.
16. First, there was no challenge to Mr Gibara's evidence. Secondly, Mr Rixon did not swear an affidavit or give evidence about the events. Rather, he simply made statements from the bar table upon which I can place no weight because they were not able to be challenged. Thirdly, Mr Rixon's criminal record contains a large number of convictions for offences involving dishonesty. Of a total of 25 offences recorded in Queensland 18 of those offences were offences of dishonesty including forging and uttering, dishonestly obtaining a benefit or advantage, and falsely representing himself to be another person. Further, he was convicted in the ACT of two counts of being a person who represented himself to be a police officer. Whilst those matters would cause me to have difficulty accepting uncorroborated evidence from Mr Rixon if given on oath, I cannot in the circumstances accept statements that he makes from the bar table, particularly where he had the opportunity to give evidence on oath.
17. I also reject Mr Rixon's submission that the contempt was not deliberate (see [22] above). The submission is inconsistent with the plea to the charges which assert that he "knowingly" contravened the orders.
18. It is also necessary to say something about Affordable Home Services. Affordable Home Services is a business name owned by a company called Sanza Accounting and Finance Pty Ltd. That company was deregistered on 4 February 2013. From the date of its incorporation on 15 September 2010 to its deregistration the secretary and director was one Jennifer Lynne Ernstzen. The evidence does not disclose what the relationship is between Ms Ernstzen and Mr Rixon. However, two things are clear. First, nobody owned the business name Affordable Home Services at the date of the events complained of in January and February 2015. Secondly, Mr Rixon's response to a phone call by Mr Gibara to Affordable Home Services and his subsequent behaviour in sending quotes, emails and invoices using that name demonstrate that he was purporting to be the controller behind that business name.
19. Two matters are significant in assessing the objective seriousness of the offending. The first is that, by his plea, Mr Rixon deliberately and knowingly breached the April 2013 orders for each of the acts contained in paragraphs 3, 5, 6, 7 and 8 of the Statement of Charges. Secondly, the orders were put in place for the purpose of protecting members of the public in accordance with the underlying intention of the Home Building Act, from unlicensed builders. The contempt, therefore, by breaching the orders not only undermines the authority and integrity of the Court but had the effect of injuring members of the public sought to be protected by the making of the orders designed to uphold the Home Building Act.
20. I consider that the contempt in each case falls above the mid-range of seriousness.
21. There are a number of matters which aggravate the seriousness of the offending in the present case. The first concerns planning. The offending involved the use of a business name that was not entitled to be used at the time and in circumstances where due searches would not have made a legal connection between the business name and Mr Rixon. It also involved the seeking out of the ABN and ACN of another company, which I find was to convey the impression that Affordable Home Services was a properly constituted business name. I do not, as noted earlier, take into account in that planning any criminality involved in the use of those numbers.
22. Further, the offending took place over a number of days and in a number of separate acts in terms of quotes, invoices, the demand for and acceptance of various amounts of money.
23. The offending is seriously aggravated by the fact that it took place whilst Mr Rixon was serving a suspended prison sentence and was on a good behaviour bond for the very same type of offending that he has now pleaded to committing. Moreover, the offences were committed within five months of the suspended prison sentence being imposed.
24. Finally, the orders of April 2013 were made precisely because Mr Rixon was then acting in contravention of the Home Building Act in the same way that led to his being found guilty of contempt by Garling J and in the same way that has led to the present contempt findings. Put shortly, Mr Rixon is a serial offender.

Subjective matters

1. Since Mr Rixon placed no evidence before the Court, the only information I have about Mr Rixon, apart from his criminal history, is what Garling J said in Rixon (No 3) as follows: [52] Whilst there is no direct material in that report indicating the extent of the personal circumstances of Mr Rixon, it does not appear that his financial position generally is such as he would be able to afford a significant fine. … [74] There is very little evidence about Mr Rixon's present subjective circumstances, except what may be gleaned from the Pre-Sentence Report of Community Corrections. He was born in 1984, and so was not yet 30 at the time he breached the Court's Orders. He was a relatively young man. He is unmarried and apparently in a stable relationship of relatively recent origin.

Remorse and rehabilitation

1. At the beginning of his submissions, Mr Rixon said this: First, your Honour, I want to express my own disappointment in myself, the fact that we're in these proceedings again. I acknowledge the charge of contempt of Court is very serious and I offer the Court my unreserved apology for breaching these orders. But I have been on the receiving end of the Court's judgments. I have come to admire and respect the New South Wales justice system. So this charge does weigh heavy on my mind, not for the fear of the punishment, but for the regret I have breached the orders.
2. When Mr Rixon appeared before Garling J on 26 June 2014 in the sentence proceedings for the first contempt, he said this: In closing, your Honour, I am deeply sorry and apologise to the Court for breaching these injunctions and I thank you for your time, your Honour.
3. In the light of the apology Mr Rixon gave to Garling J, the apology he made to me rings hollow.
4. Two other matters are relevant on the issue of remorse and rehabilitation. The first is that no recompense has been made to Mr Gibara. I do not consider that Mr Rixon has demonstrated any remorse, particularly bearing in mind the terms of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Not only has he not made reparation to Mr Gibara but he has provided no evidence that he has accepted responsibility for his actions.
5. That is somewhat borne out by the second matter. Since the contempt was committed in January and February 2015 Mr Rixon committed 24 of the 25 offences for which he was found guilty in Queensland. Those offences in the first place demonstrate a refusal on his part to obey the law. Further, as mentioned earlier, the majority of those offences were offences of dishonesty. The offending constituted by the contempt in the present case was not free of dishonesty by the unlawful use Mr Rixon made of the business name Affordable Home Services.

Likelihood of reoffending

1. Although Mr Rixon led no medical, psychological or psychiatric evidence to explain his offending generally and his continuing failure to comply with the orders of this Court, when that continuing failure and his other offending are considered I am left with the impression that there is an underlying problem which has not yet been identified and/or treated. Nevertheless, the only conclusion I can reach on the evidence is that I regard Mr Rixon's prospects of rehabilitation as poor and the likelihood of reoffending as high. He informed me that he has not offended in the last 12 months. Even if I were to accept that that is true, given the extent of the offending in Queensland and the present contempt committed within five months of the sentence imposed by Garling J, I could not be satisfied that a period of 12 months free of offending means that Mr Rixon will not continue to offend.

Deterrence

1. Specific deterrence and general deterrence are important considerations where a charge of contempt is concerned. In the present case specific deterrence looms large because this is the second occasion on which Mr Rixon is being dealt with for contempt of the same orders as a result of the same sort of conduct in breach of those orders. General deterrence is a significant matter in relation to contempt to emphasise the importance of obedience to Court orders, particularly where those Court orders are made for the benefit of members of the public as is the case here.

Other matters

1. I take into account in Mr Rixon's favour the delay between the date of the offending and the time the sentence is being imposed: R v Todd [1982] 2 NSWLR 517 at 519. Whilst part of that delay was caused by his failure to comply with directions to serve evidence (see NSW Commissioner for Fair Trading v Rixon [2015] NSWSC 956), at least 12 months of the intervening period was occasioned by his incarceration in Queensland whilst on remand for the offences in respect of which he was ultimately convicted on 28 September 2016.
2. Mr Rixon is entitled to a discount for the benefit of his plea. The parties were given leave to obtain a hearing date on 14 October 2016. At some little time after that date a hearing was appointed for 19 June 2017. That date was confirmed at directions on 3 March 2017. Some six days before the scheduled hearing date Mr Rixon pleaded guilty to the charges identified earlier in this judgment. Even allowing for the fact that Mr Rixon was incarcerated in Queensland for a 12 month period I do not consider the plea was entered at the earliest opportunity. I consider that there should be a discount of 10% for the utilitarian value of the plea.

Penalty

1. Mr Rixon has pleaded guilty to committing a contempt of court in the five ways set out in Charges 3,5,6,7 and 8. The acts constituting those charges was one course of conduct but carried out over a period of two weeks. I intend to impose a single penalty for the acts constituting those charges.
2. In the circumstances of this case, I am satisfied that no other penalty than a period of imprisonment is called for. I consider that the period to which Mr Rixon should be sentenced is a period of 18 months. In reaching that conclusion I take into account that Mr Rixon was not required to serve any part of his earlier sentence of imprisonment in custody although he breached the terms of that suspended sentence by his present contempt.
3. Mr Rixon submitted that it would be appropriate if any sentence was served by way of an Intensive Corrections Order. I do not agree. Mr Rixon was given the opportunity on the last occasion of serving a sentence of imprisonment in the community on the condition that he be of good behaviour. Not only was he not of good behaviour but he breached the same orders and did so in contempt of this Court within five months of being sentenced and having been warned that he would face a fulltime custodial sentence if he did not comply with the sentence imposed. Moreover, as Garling J made clear in Rixon (No 3) at [79], he was spared a fulltime custodial sentence on the earlier occasion only by reason of the fact that the required notice under r 40.7 was not attached to the orders served.
4. I find special circumstances because I consider that Mr Rixon needs assistance in rehabilitation to deal with his continued offending and a longer period on parole is likely to further that end. In the circumstances I consider that he should be sentenced to a period of imprisonment of 18 months with a non-parole period of 12 months.
5. This sentence was scheduled to be imposed on 12 January 2018. Despite having been advised of that date Mr Rixon did not appear in court. I issued a bench warrant for his apprehension. That warrant was only able to be executed on 14 February 2018 when he was arrested in Queensland. Having been extradited to New South Wales he was brought before Wilson J who remanded him to today. Accordingly, the sentence will commence on 14 February 2018 with the non-parole period expiring 13 February 2019 and the balance of term expiring 13 August 2019.
6. I make the following orders: 1. The Defendant, Matthew Geoffrey Rixon, is convicted of contempt of court. 2. The Defendant is sentenced to a term of imprisonment of 18 months commencing 14 February 2018 and expiring 13 August 2019 with a non-parole period of 12 months expiring 13 February 2019. 3. The Defendant is to pay the Plaintiff's costs of the proceedings on an indemnity basis.

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