Plaintiff v Defendant

2 The substantive issues in this proceeding relate to a dispute regarding the defendant's failure to repay to the plaintiff certain loan advances totalling $1,080,000 (Loan Advances).[1] The defendant admitted that the Loan Advances were made and not repaid and said that he had a gambling addiction that had resulted in the Loan Advances and other amounts being used for gambling and lost, rather than being advanced by way of loans to property developers as he had told the plaintiff they would be.

3 In December 2019 I granted summary judgment in favour of the plaintiff in respect of the Loan Advances, interest, and costs. See Koulouris v Haidaris (No 2) (Koulouris No 2).[2]

4 Prior to seeking summary judgment the plaintiff filed and served a summons,[3] which sought an order that the defendant be punished for contempt of court pursuant to r 75.11 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules). Timetabling directions were made, but the hearing of the application was deferred pending the completion of other steps in the proceeding, including the hearing and determination of the plaintiff's summary judgment application.

5 The Affidavit Order was recorded in paragraph 3 of orders made by Robson J on 11 April 2019 (11 April Orders) as follows:

The defendant shall file and serve an affidavit in compliance with paragraph 8.1 of the interim freezing order, on or by 4.00 pm on 25 April 2019.

6 Paragraph 1 of the 11 April Orders addressed the making of the interim freezing order in the following terms:

The Court makes an interim freezing order in the form attached to this order, which interim freezing order expires at 4.00 pm on 2 May 2019 or further order.

7 As was recorded in that order, the interim freezing order was attached to the 11 April Orders (Freezing Order).[4]

8 Paragraph 8.1 of the Freezing Order required the defendant '... to the best of [his] ability [to] inform the plaintiff in writing ...' of certain information regarding his assets and financial position,[5] including:

(a) all of his assets and liabilities in Australia, giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of his interest in the assets;

(b) the whereabouts of funds totalling $1,170,000 from loan funds advanced by the plaintiff to the defendant, including bank statements or any other documents in his power, possession or control which evidence the deposit or receipt of funds;

(c) how the loan funds had been paid, applied or dealt with up to 11 April 2019, including the name and address of each recipient and the date or dates upon which the payments were made; and

(d) his current residential address.

9 Paragraph 8.2 of the Freezing Order was in the following terms:

By 4.00 pm on 25 April 2019, you must swear, file and serve on the plaintiff an affidavit setting out the above information.[6]

10 The Freezing Order was subsequently refined and extended until trial or further order, although not in a way that relevantly impacted the Affidavit Order or the contempt application the subject of these reasons.[7]

11 The contempt charge as formulated and pressed by the plaintiff was in the following terms:[8]

PARTICULARS OF THE DEFENDANT'S CONTEMPT

Paragraph 3 of the [11 April Orders] required the defendant to file and serve an affidavit in compliance with paragraph 8.1 of the [Freezing Order]. In breach of paragraph 3 of the [11 April Orders], the Defendant:

(i) failed to file and serve an affidavit in compliance with paragraph 8.1 by 4.00 pm on 25 April 2019 ("the due date");

(ii) has not at any time since the due date filed and served an affidavit in compliance with paragraph 3 of the [11 April Orders].

12 Although some relevant information was provided by the defendant to the plaintiff through the provision of some documents and by way of a statutory declaration made by the defendant on 7 August 2019,[9] it was common ground that at the time the summons was issued, and up until 12 March 2020, the defendant had not filed any affidavit by way of purported compliance with the Affidavit Order. It was also the case that until pro bono assistance was obtained for the defendant from Mr Lithgow of counsel in relation to the contempt application in early 2020,[10] the defendant had been representing himself and had been unable to obtain legal assistance by reason of what he said were his challenged financial circumstances.

13 On 12 March 2020 the defendant filed and served an affidavit seeking to address the matters required by the Affidavit Order and matters relevant to this application (12 March Affidavit).

14 At the hearing of the application counsel for the defendant confirmed that the contempt alleged in the plaintiff's summons was admitted, which was consistent with the substance of the admissions in the defendant's outline of submissions dated 17 March 2020. Consequently, the only issues remaining for determination are:

(a) whether the contempt is to be characterised as civil or criminal in nature;

(b) what, if any, penalty is to be imposed in respect of the contempt; and

(c) what order should be made with respect to the costs of the application.

15 For the reasons that follow I have concluded that:

(a) The contempt is a civil contempt and it has not been established that the contempt was contumacious or otherwise criminal in nature.

(b) A declaration should be made to the effect that the defendant committed contempt of court by reason of his failure to file by 25 April 2019, or at any time prior to 12 March 2020, an affidavit as required by the Affidavit Order.[11]

(c) A fine of $5,000 should be imposed on the defendant.

16 The plaintiff primarily relied upon the affidavit of his then solicitor,[12] Mr Wilson, sworn 17 September 2019, which in turn referred to Mr Wilson's affidavits sworn 30 April, 1 May, 28 May and 8 August 2019. He also relied upon the affidavits of another of his then solicitors, Mr Kenny, sworn earlier in this proceeding on 3, 9, and 10 April 2019 in connection with the application heard before Robson J on 11 April 2019.[13]

17 The defendant relied upon his 12 March Affidavit.

18 No objection was taken to any part of the affidavits,[14] and neither the plaintiff nor the defendant sought to cross-examine any deponents.

19 The breach of the Affidavit Order and alleged contempt having been admitted by the defendant, it is not necessary to traverse the evidence and background in order to determine whether the plaintiff's contempt charge has been made out. Had it been necessary to do so, I would have determined that the breach of the Affidavit Order and consequent contempt had been established. The evidence proves the necessary elements beyond reasonable doubt, including that prior to the filing and service of the 12 March Affidavit the defendant did not file any affidavit seeking to comply with the Affidavit Order.

20 The evidence regarding the factual background and circumstances as referred to by Mr Wilson in his affidavits,[15] Mr Kenny in his affidavits, and the defendant in his 12 March Affidavit is also relevant and to be taken into account in connection with whether the contempt is to be characterised as civil or criminal in nature, the issue of penalty, and the question of costs. I have considered the affidavit evidence relied upon and, although it is neither necessary nor desirable to set out all of its detail here, it is convenient to note that the relevant background includes the following.

21 The substantive dispute between the parties and claims made in this proceeding relate to the defendant's failure to repay the Loan Advances to the plaintiff which the defendant had told the plaintiff were to be on-lent to property developers.

22 The writ was filed on 2 April 2019 and a summons seeking the Freezing Order was filed the following day, with the application heard by Robson J on 11 April 2019.

23 Following receipt of the writ, summons and affidavit material, the defendant sent an email to Mr Kenny which read in part as follows:

Hi Jonathan,

I read the whole papers you served me regarding your client and I am not here in any way to defend what I did. It was wrong and I am totally at fault. All the information that is in those papers were all lies and stories I made up to buy myself time to try and figure out a solution to the problem I had created for myself due to my compulsive gambling. ...

... I am seeking a chance to be able to return all the moneys I took from him. Like I have said before the only chance I have to do this is if I am able to continue selling real estate.

... I have thought about everything a lot and am very remorseful and would like to sit down and work a way out of this whereby I can pay your client back.

I have no assets at all and my only way is to keep doing what I am doing and work myself out of this.

...

I will day [sic] it again. I am here to rectify this. Should I be made to pay my time through the court system I will have no way to repay your client back.

Please let me know if your client would like to meet to discuss further.[16]

24 In his affidavit of 10 April 2019 that was filed in support of the application for the Freezing Order, Mr Kenny referred to a meeting he had with the defendant on 10 April 2019 in which the defendant informed him of a number of things, including in substance, that:

(a) There never were any property developers that borrowed or were to borrow funds from the defendant.

(b) All of the funds received from the plaintiff were used by the defendant to gamble on horse racing.

(c) The defendant had an account with William Hill that he had not used for some time, and he also made cash payments with bookies at the racetrack or the TAB but that he did not have an account with the TAB.

(d) In respect of each loan from the plaintiff, the funds were advanced by transfers to the defendant's Commonwealth Bank (CBA) 'Personal Account', which were then transferred by the defendant to a separate account named 'Transfer Trust Account', and then transferred by the defendant back to his 'Personal Account', and from there used for gambling.

(e) The defendant had a gambling problem, which had existed for some years.

(f) The defendant had separated from his wife about three years previously, and that his wife rents a home but he lives from his car.

(g) The balance in the defendant's CBA bank account was close to nothing.

(h) The defendant would provide bank statements for the 'Transfer Trust Account'.

25 Mr Kenny also deposed to the defendant having provided some redacted bank statements for his 'Personal Account', and having observed that the statements showed that various loan funds received by the defendant from the plaintiff into the 'Personal Account' were transferred into the 'Transfer Trust Account', and then transferred back to the 'Personal Account' of the defendant on the same date. Mr Kenny referred to the large numbers of transfers, the substantial amounts involved, the existence of multiple instances of spending at Crown Casino, restaurants, bars, supermarkets and clothes stores, and the importance of needing to understand the source of the funds moving through the accounts and what had become of them.[17] He also said that because he had not seen bank statements for the 'Transfer Trust Account', or bank statements for the 'Personal Account' from 1 January 2019, and because he did not know if there were other accounts, he could not verify the position in relation to the funds.

26 At the hearing of the plaintiff's application before Justice Robson on 11 April 2019 the plaintiff was represented by counsel and the defendant appeared in person. The defendant addressed Justice Robson during the hearing and, among other things, indicated that he understood what was happening and that he would be providing the documents that had been sought in relation to bank statements and the information regarding William Hill. In response to Justice Robson stating that what the plaintiff wanted was 'documents and explanations [as to] where all the money went',[18] the transcript records that the defendant said that he was happy to provide statements in full and also the statements for the other accounts and his William Hill betting account so the plaintiff could '... see exactly where it went ...'. He said that the 'scrubbings out' on the bank statements that he had provided to the plaintiff 'were all personal stuff' but that he was happy to provide them in full 'and also the other account and also [his] William Hill betting account which [Mr] Kenny asked for yesterday.'[19]

27 The defendant was also informed by Justice Robson about the importance of obtaining legal advice. In this context the defendant said that he was not at court to defend the claim and that the two reasons he did not have legal representation were because he could not afford it and because he had '... admitted [his] doings ...'.

28 The plaintiff's freezing order application was successful and Robson J made the 11 April Orders, including the Affidavit Order and the Freezing Order.

29 There was no issue between the parties regarding service of the 11 April Orders (including the attached Freezing Order) or the defendant's knowledge of them.

30 As the affidavits of Mr Wilson revealed, in the months that followed: a considerable number of email and other communications passed between the defendant on the one hand and the plaintiff and/or his solicitors on the other; from time to time the Court received emails from the defendant, typically in connection with upcoming directions hearings; directions and other hearings were held at which the plaintiff was represented by junior counsel and the defendant appeared in person; and some other events occurred. Although the detail and sequence of all of these communications and events need not be set out,[20] the following may be noted:

(a) Complaints were made by the plaintiff regarding the defendant's failure to file and serve an affidavit pursuant to the Affidavit Order.

(b) The defendant continued to express remorse regarding his actions, a desire to reach an agreement with the plaintiff, and an intention to repay him - but in circumstances where he stated that, in substance, he had no assets and that his ability to repay the plaintiff was dependent upon him being able to continue to work as a real estate agent.

(c) The defendant stated that he took steps to obtain legal representation but was not able to retain a lawyer to act for him in the proceeding because of what he said were his challenged financial circumstances.

(d) The defendant made statements to the plaintiff, and to the court, to the effect that further documents would be provided to the plaintiff.

(e) Assistance was provided to the defendant by the court's Self-Represented Litigants Co-ordinator (Co-ordinator). Quite properly, the Co-ordinator's role did not involve the provision of legal advice.

(f) After seeing the Co-ordinator the defendant sent an email dated 25 July 2019 to the plaintiff's solicitors and the court stating, among other things, that he had a meeting with the Co-ordinator '... and have discussed the documentation and orders with him. In the absence of any legal representation for me I will undertake to provide a statutory declaration and affidavit to you all very shortly on the matters of my financial position'.

(g) On 7 August 2019 the defendant sent an email to the court and the plaintiff's solicitor stating that he had no difficulty showing the plaintiff any material he would like to see that was relevant to the case. Statements to similar effect were made in previous and subsequent communications, but sometimes conditionally linked to requests for meetings with the plaintiff or his solicitors.

(h) At times the correspondence revealed that there was a considerable level of tension and acrimony between the plaintiff and the defendant.

(i) On 7 August 2019 the defendant made a handwritten statutory declaration in relation to his financial position and provided it to the plaintiff that day or the following day. It read as follows:

I, Nikolaos (Niclas) Haidaris ...

In the State of Victoria, do solemnly and sincerely declare:

My financial position is on the verge of bankruptcy. I do not have any cash or money anywhere, whether it be in my bank accounts, on my person or with any other individuals or their bank accounts. I have not got any assets, am not 'hiding' any assets or have not sold any assets since all this began. I have tried to sit down with the plaintiff, Mr A. Koulouris, and his legal team on many occasions to discuss a solution to all this but have not heard back. In the last few weeks I have sent numerous emails to Mr Anish Wilson and Mr Jonathon Kenny, the legal representatives for Mr A. Koulouris and have not received a response. On Saturday 27th July I received a text direct from Mr. Andrew Koulouris which led to numerous texts saying to me 'I will not leave you alone until I've been paid or you are in jail. I will chew through you like a cancer. Choose.' During this exchange, I offered to meet with him and his legal team to give them the statements he was after. Again no response other than basically saying he didn't want to meet me.

I am here to co-operate and try to find a solution to all this. From messages I have received from the plaintiff and correspondence from his legal team, I believe they think I have money "hidden" somewhere. I am here to say that I have no money anywhere and the only way I can pay back monies owed is if I am able to continue my day to day job selling houses as a real estate agent. To that end I am happy to sit down and work something out with the plaintiff in that capacity. It seems though that the plaintiff is determined to put me in jail at which point I hope he realises he will not get back my money. I am deeply sorry and remorseful for this situation and would like an opportunity to make things right.

(j) By email dated 8 August 2019 the plaintiff's solicitors informed the court that the plaintiff proposed to file and serve a 'contempt summons' in relation to the defendant's failure to provide an affidavit.

(k) At the directions hearing on 9 August 2019 I referred again to the Affidavit Order requiring an affidavit to be filed, the time that had passed, and asked the defendant if filing the affidavit was something that he was going to do, to which he responded: 'Yes I am'.[21]

(l) Further emails and communications were exchanged regarding the prospect of meeting and documents being provided. In various instances, promises or statements made by the defendant regarding the provision of documents or meeting with the plaintiff's then solicitors were not satisfied. As the plaintiff submitted, the evidence demonstrated that the defendant could not always be relied on to do that which he said he would.

(m) On 13 September the plaintiff filed - and subsequently served - various subpoenas to produce documents, including on Haven and the CBA.

(n) The summons the subject of these reasons was filed on 17 September 2019. Timetabling orders were subsequently made.

(o) On about 26 September 2019 the defendant provided to the plaintiff's solicitors the bank statements for the two CBA accounts in question, ANZ account 417154267, and the defendant's William Hill Account Statements. Ms Rachel Lay supplied statements of Haven the Agency (Haven).[22]

(p) On 27 November 2019 the plaintiff filed a summons seeking summary judgment. This application was heard and determined on 6 December 2019 and summary judgment was given in favour of the plaintiff for $1,080,000 plus interest and costs.

(q) Also on 6 December 2019, orders were made directing that the Co-ordinator lodge a request with the Victorian Bar Pro Bono Assistance Scheme for legal assistance to be given to the defendant in relation to the contempt application.

(r) On 28 January 2020 the court was informed that Mr Lithgow of counsel had agreed to provide pro bono assistance to the defendant, and on 30 January 2020 the court was informed that the plaintiff would be appearing on his own behalf at the hearing of the contempt application.

(s) On 12 March 2020 the defendant filed his 12 March Affidavit in which he sought to address the matters required to be addressed by the Affidavit Order and deposed to other matters relevant to this application.[23]

(t) At the time of the hearing no payments had been made by the defendant to the plaintiff in respect of the judgment debt.

31 With respect to the matters deposed to in the 12 March Affidavit and relevant to the current application, I mention briefly that they included the following.

32 The affidavit was prepared with the assistance of counsel and was self-evidently directed at addressing the requirements of the Affidavit Order. It records that the defendant has been advised regarding his rights in relation to the privilege against self-incrimination and that he has made full disclosure of the matters referred to in it to the best of his recollection and without making any claim for privilege.[24]

33 Reference is made to the defendant's residential address, which was further clarified by counsel during the hearing when he explained that the defendant is effectively living out of his car, at times with his parents, or 'couch surfing'.

34 The defendant is a self-employed real estate agent working under the Haven banner. He receives commission on settled sales of real estate at 80% of the rate received by Haven. He estimates that he has commissions owing to him of approximately $30,000, which are said to be '... due and payable within the next few months'.

35 Paragraphs 2 to 12 summarised the defendant's financial position. The evidence reveals more than challenged financial circumstances, including: a total bank balance of less than $800; ownership of a Mitsubishi motor vehicle that is more than 10 years old and thought to be worth about $3000; personal jewellery with an estimated value of $1000; limited household furnishing, clothing and personal items of nominal value; no ownership of property; no superannuation, shares, bonds or other financial instruments; and liabilities comprising household bills and parking and driving fines totalling approximately $10,000, in addition to the substantial judgment debt in this proceeding with material interest accruing daily. In his statutory declaration the defendant described himself as being 'on the verge of bankruptcy', and the court was informed at the end of the hearing that the plaintiff's creditor's petition against the defendant was pending.

36 The defendant states that he had a 'severe gambling addiction' during the period from late 2016 to about September 2019. During the period from late 2016 until about September 2019 he gambled extensively online through William Hill, at casinos in Melbourne, Perth, Brisbane and Sydney and at racetracks in Victoria and New South Wales. The William Hill and CBA statements exhibited to the affidavit are consistent with this extensive gambling.

37 The defendant says he is no longer gambling, is attending weekly meetings of Gamblers Anonymous, and 'now fully realise[s] that gambling has had a significant adverse effect on [his] life and has been detrimental to those around [him] including [his] family and the plaintiff and his family'.[25]

38 With respect to the Loan Advances, the defendant provides details of the CBA accounts into which they were paid and transferred, and from which they were disbursed. Details are provided in relation to individual amounts advanced by the plaintiff in sub-paragraphs 22(a) to (h) of the affidavit. Bank statements are referred to and exhibited, and reference is made to the bank statements previously provided to the plaintiff's solicitors in April 2019 and the bank statements and William Hill statements provided in September 2019.

39 With respect to the failure to provide an affidavit prior to 12 March 2020, the defendant says that he found himself 'overwhelmed' by communication and information he was receiving from the plaintiff's solicitors and the court, including affidavits, summonses, and orders (including receiving multiple copies on occasion). He refers to his attempts to obtain legal advice and how it became apparent after an initial consultation that he could not afford to retain a solicitor. He says that he did not fully understand his obligations under the Affidavit Order and '... naively believed that by providing copies of various bank and William Hill statements and a statutory declaration outlining [his] financial position this would satisfy [his] obligations ...' but is now advised that '... strict compliance with the Order of Justice Robson was required.' The statutory declaration was exhibited to the 12 March Affidavit.

40 The defendant states that it remains his intention to attempt to repay the monies and that this is dependent on the future receipt of commissions, which in turn depends on his ability to keep working as a real estate agent. He acknowledges his failure to comply with the Affidavit Order and states that it was never his intention to avoid providing information to the plaintiff and his lawyers. The defendant states that he now believes he has complied with the terms of the Affidavit Order and his counsel confirmed at the hearing that he was instructed to convey his client's sincere apology for his breach of the order.

41 As the parties observed, in Hera Project Pty Ltd v Bisognin (Hera No 1),[26] Champion J set out a number of the principles relevant to a contempt allegation of the kind under consideration. It is helpful and convenient to repeat them:

1. A failure by a party to comply with a court order may constitute contempt of court.[27]
2. To establish contempt by breach of a court order, the plaintiff must prove beyond reasonable doubt,[28] the following five elements:

(a) an order was made by the court;

(b) the terms of the order are clear, unambiguous and capable of compliance;

(c) the order was served on the defendant, or excused in the circumstances, or service was dispensed with pursuant to the rules of the court;

(d) the defendant had knowledge of the terms of the order; and

(e) the defendant breached the terms of the order.[29]

Civil or criminal contempt

1. The law has traditionally distinguished between civil and criminal contempt. The basis of distinction was that civil contempt had a remedial function in coercing compliance with court orders in support of a private interest of a party. Criminal contempt, in contrast, had a punitive and deterrent function, and was concerned with protecting the public interest in the integrity of the judicial process.[30]
2. However, this distinction has become subject to scrutiny. In Witham v Holloway ('Witham'), which concerned contempt by breach of a court order, the High Court determined the bases for the distinction between civil and criminal contempt are 'in significant respects, illusory'.[31] The Court highlighted that:

(a) there is no true dichotomy between proceedings in the public interest and those in the individual's, as all orders are made in the interests of justice and non-compliance necessarily interferes with its administration; and

(b) there is difficulty in drawing a distinction between proceedings for a punitive purpose and those for remedial or coercive purposes; imprisonment and fines both constitute punishment and are used for both civil and criminal contempt.

1. It has been observed that while Witham clarified the law of contempt in some ways, it created new confusion in others.[32]
2. In CFMEU v Grocon Constructors (Victoria) Pty Ltd,[33] the Court of Appeal conducted an extensive survey of authorities to ascertain the state of the law of contempt. The Court noted that while there had been a blurring of 'any bright line of distinction' between civil and criminal contempt, courts have continued to 'draw the elusive distinction between "punitive" and "protective" proceedings'.[34]
3. With regard to contempt proceedings brought in respect of breach court orders, the Court made the general observation that

their object is most often to coerce the recalcitrant party into compliance, and not to punish the party for that breach. Notwithstanding the fact that such conduct is usually described as 'civil contempt', the offending party may be imprisoned or fined as an incentive to comply with court orders.[35]

1. The Court ultimately found contempt proceedings by breach of an order are a 'hybrid', to which features of both civil and criminal procedure attach. While some of the safeguards associated with the conduct of criminal trials may be applicable, the 'full panoply of the criminal law was never imported into the law of civil contempt'.[36] This was upheld by the High Court in CFMEU v Boral Resources (Vic) Pty Ltd,[37] in which the Court referred back to Witham as follows:

[T]o say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences[.][38]

1. While it is generally accepted that disobedience of a court order will usually be civil contempt, it may be a criminal contempt where:

(a) the contempt is contumacious; or

(b) the proceedings serve a punitive purpose of punishing a past breach, rather than a remedial purpose of coercing obedience with the order.[39]

1. It is widely accepted that it is not necessary to classify contempt as civil or criminal until consideration of the penalty to be imposed, after a finding of contempt has been made...[40]

Intention: technical, wilful or contumacious

1. The plaintiff does not have to prove that the defendants had an intention to deliberately breach the order. As stated in CFMEU v Grocon:

It is not in doubt that, in relation to breach of a court order, a finding of contempt can be made whether the breach was technical, wilful or contumacious. It is sufficient to establish that the acts of an alleged contemnor were intentional and were calculated (in the sense of 'likely') to interfere with the course of justice. It is unnecessary to establish a specific intention to breach the order of the court or to interfere with the proper administration of justice.[41]

1. The deliberate commission of an act or omission which is in breach of an order will be sufficient to constitute contempt.[42] That is, the plaintiff is required to prove only that the accused was aware of the facts that made the relevant act or omission a breach of the order.[43]
2. However, the intention with which the act was done will be highly relevant in determining the nature of the contempt and what penalty, if any, is to be imposed.[44]

1. The penalty for contempt may consist of fines, imprisonment or both.[45]
2. Where the breach of an order is casual, accidental or unintentional, the court may exercise discretion to impose no penalty.[46] Conversely, where the breach is contumacious, the contempt will be treated as criminal rather than civil.[47] Further, where contempt is considered criminal, a court may record a formal criminal conviction.[48] While a sentence of imprisonment is available in cases of civil contempt, it is rarely considered appropriate.[49]
3. If an alleged contempt is proven, it is not uncommon to adjourn proceedings to provide the contemnors with an opportunity to address the court on the question of penalty and whether a conviction should be recorded. It is accepted the court may defer any finding as to whether the contempt is criminal until after that penalty hearing.[50]

1. Procedural fairness requires that contemnors be put on notice at an early stage of proceedings of the risk of a finding of criminal contempt.[51]

42 Although of some length, it is instructive to extract in a little more detail the cautionary observations made in Witham v Holloway (Witham)[52] regarding reliance upon the distinction between primarily coercive or remedial proceedings on the one hand, and punitive proceedings on the other, as being a satisfactory basis for the distinction between civil and criminal contempt:[53]

The distinction between civil and criminal contempt is longstanding.... The distinction was described as being of an "unsatisfactory nature" in Mudginberri. And it was said in that case that there is "much to be said for the view that all contempts should be punished as if they are quasi-criminal in character". Later, in Hinch v Attorney-General (Vict), Deane J referred to various anomalies associated with the distinction and expressed the view that proceedings which can result in a fine or imprisonment in "consequence of a finding of contempt ... must realistically be seen as essentially criminal in nature".

...

The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process.

...

The distinction between proceedings in the public interest and those that are coercive or remedial in the interest of the private individual is not, in our view, a satisfactory basis for the distinction usually made between civil and criminal contempt. Even allowing for those orders which, if breached, involve criminal contempt and for contumacious breach, the distinction does not support the general proposition that breach of an order in civil proceedings is a civil contempt. That is because there are some circumstances in which the breach simply cannot be remedied...

At best, the distinction between proceedings in the public interest and proceedings which are coercive or remedial in the interest of the private individual supports a separate category of civil contempt to the extent that it clearly appears that the proceedings are remedial or coercive in nature. ... However, in our view, there are fundamental problems even with that approach.

One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.

Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.

Moreover, there is considerable difficulty with the notion that, in some cases, the purpose or object of the proceedings is punitive and, in others, the purpose or object is remedial or coercive. It should at once be noted that the purpose of the proceedings is not the same as the purpose or object of the individual bringing the proceedings and it is well recognised that, notwithstanding that proceedings are brought by an individual to secure the benefit of an order or undertaking, a "penal or disciplinary jurisdiction" may also be called into play. It has been held that the "penal or disciplinary" jurisdiction may be exercised even when the parties have settled their differences and do not wish to proceed further. ...

And as already indicated, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect. Indeed, if the person in breach refuses to remedy the position, as is not unknown, their only effect will be the vindication of judicial authority. Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings alleging breach of an order or undertaking, it is necessary to acknowledge, as it was in Mudginberri, that punitive and remedial objects are, in the words of Salmon LJ "inextricably intermixed".

Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as "punitive" and others as "remedial or coercive". Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking.

The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt "must realistically be seen as criminal in nature". The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise.

43 In Shanan James Sidebottom v The Queen (Sidebottom v R),[54] the Court of Appeal said as follows regarding the distinction between civil and criminal contempt:

1. Order 75 of the Supreme Court (General Civil Procedure) Rules 2015 governs the procedure to be followed in proceedings for contempt.
2. At the risk of repetition, the nature of the alleged contempt in the present case was the breach of an undertaking; the authorities establishing that, for the purposes of civil contempt, an undertaking is (generally speaking) the equivalent of an order of a court.[55]
3. Although a contempt proceeding under Order 75 is civil, however, proceedings seeking imprisonment or a fine for contempt 'must realistically be seen as essentially criminal in nature'.[56] Thus, before a person is found guilty of contempt, the charge must be proven beyond reasonable doubt.[57] Indeed, the criminal nature of contempt proceedings might be thought to be reflected in the fact that appeals with respect to sentences for contempt are subject to the provisions of Part 6.3 of the Criminal Procedure Act 2009,[58] rather than the civil appellate regime.
4. As we have said, the judge in the present case found that the appellant's contempt was criminal. In context, the distinction between civil and criminal contempt appears to be that a civil contempt involves the breach of an undertaking in civil proceedings, whereas a criminal contempt involves a contempt in the face of the court or an interference with the course of justice. Additionally, however, disobedience or breach of an undertaking will amount to a criminal contempt 'if it involves deliberate defiance or, as it is sometimes said, if it is contumacious'.[59] The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process,[60] although the 'differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory'.[61]

44 In Moira Shire Council v Sidebottom Group Pty Ltd (Moira Shire Council),[62] Forbes J echoed and expanded upon aspects of those observations:[63]

1. A breach of a court order or undertaking in a civil proceeding is generally described as a civil contempt. However disobedience of such an order may amount to a criminal contempt if it is deliberately defiant, often described as being contumacious. The distinction between the civil and criminal contempt of a court order is sometimes described as "illusory"[64] because the standard of proof of the contempt remains to the criminal standard of beyond reasonable doubt, whether the contempt be civil or criminal. Both civil and criminal contempt can be penalised by fine or imprisonment of the individual.
2. Whether the contempt is civil or criminal, the importance of upholding the effective administration of justice is central.[65] However, there are distinctions to be drawn in the purpose for which the penalty is imposed. For a civil contempt the purpose of the contempt proceeding is primarily to 'coerce the recalcitrant party into compliance, and not to punish the party for that breach.'[66]
3. The fact that a contempt is wilful or deliberate does not in itself demonstrate contumacy. What must be demonstrated for a breach of a court order or undertaking to amount to a criminal contempt is that the breach was both wilful and calculated (in the sense of 'likely') to interfere with the course of justice.[67] In Construction, Forestry, Mining and Energy Union v Grocon Constructors (Vic) Pty Ltd,[68] the Court of Appeal made reference to Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd,[69] where contumacy was described as:

It is appropriate for the contempt before the Chief Judge to be regarded as involving an element of contumacious conduct. Contumacy is perverse obstinate resistance to authority; see the Shorter Oxford Dictionary. Deliberate determination to defy the court for reasons founded upon union policy in which it sought to establish immunity from the law would seem within this concept of contumacy.[70]

...

1. In discussing the persisting difference between a civil and a criminal contempt the Court of Appeal said:

A conviction has usually followed as a necessary incident of a finding of criminal contempt. Indeed, a finding of guilt of criminal contempt has itself been regarded as the equivalent of a conviction.[71]

...

If a contemnor is adjudged guilty of a civil contempt, Biscoe J observed in Waverley Council v Tovir Investments Pty Ltd and Rappaport (No 3),[72] no conviction should be recorded. In ASIC v Sigalla (No 5),[73] the contempts proved were held to be civil in nature. Justice White said that the appropriate language was 'that of a declaration of [the contemnor's] guilt, rather than conviction of an offence'[74].[75]

45 In Primelife Corporation Ltd v Andrejic (Primelife),[76] Nettle J emphasised that for a civil contempt a party is not liable to be punished for the contempt '... unless the contempt is proved by strict proof beyond reasonable doubt.'[77] He also observed that '[t]he aim of contempt sanctions in civil proceedings is primarily coercive or remedial, but it is recognised that a punitive aim is warranted to vindicate the authority of the court.'[78] The circumstances in that case were such that there was no longer a need for coercion of compliance with the court's order that the person concerned attend for oral examination, because that had been achieved. Consequently, Nettle J considered that '[t]he only question [was] whether it [was] necessary to impose some additional sanction in order to vindicate the authority of the court, which is to say to bring home to the second named defendant that he may not flout the authority of the court with impunity, and to bring home to others the importance of complying with the court's orders.'[79]

46 In Primelife the order in question had not been indorsed with a notice pursuant to r 66.10(3) of the Rules. A submission was made in that case that r 66.10(3) should also operate to prohibit the imposition of a fine, given that an order for committal or sequestration could not be made unless the order was indorsed with the required notice or warning. Nettle J did not accept this submission, noting that:[80]

As a matter of fairness that view has a degree of appeal about it. It is difficult to see why a subject should any more readily be subjected to a fine than to committal or sequestration without the warning for which r 66.10(3) provides. But a different view of the matter has been taken in New South Wales and in the Federal Court[81] and I think that I should follow it. With some diffidence I conclude that there is power to fine even if an order has not been indorsed in accordance with the rule.

It is clear, however, that the court is not to impose a fine unless the contempt is wilful, and even then I do not consider that the court should impose a fine unless what might be described as the requirements of specific and general deterrence warrant the adoption of that course.[82]

47 The Court of Appeal in Miller v Eurovox Pty Ltd (Miller)[83] endorsed the conclusion reached by Nettle J, observing that there was a 'clear distinction' made in the Rules between penalties for committal and sequestration on the one hand, and the imposition of a fine on the other, and concluding that '[o]rder 66.10 is applicable only to the enforcement of orders by sequestration or committal'.[84]

48 In Sidebottom v R,[85] the Court of Appeal reinforced the importance of employing appropriate safeguards where contempt applications arise in civil proceedings:[86]

Although the contempt in this case arose in the course of a civil proceeding, since it was punishable by imprisonment, the safeguards similar to those appropriate in criminal proceedings applied. So much is clear from Doyle, where it was observed that:[87]

... a proceeding for committal may result in a very serious interference with the liberty of the subject - indefinite confinement. Safeguards similar to those appropriate in criminal proceedings therefore apply. Speaking generally ... the charge must be distinctly stated in the notice of motion or other application and the person sought to be committed must be given a proper opportunity to answer the charge. Some aspects of the general principle were mentioned in the judgment of Williams ACJ, Kitto and Taylor JJ in Coward v. Stapleton[88] in the following passage:

... it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard;[89] R v Foster; Ex parte Isaacs.[90] The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott.[91] The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.

Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon.

49 Considerations relevant to penalty in contempt cases have been addressed in many cases and need not be laboured. Again, and as the parties did, it is convenient to refer to some of the observations of Champion J in Hera Project Pty Ltd v Bisognin (No 2) (Hera No 2):[92]

The purpose of punishing for contempt is to uphold and preserve the orderly administration of justice. In furtherance of that goal, the principal aims of sentencing in contempt cases include specific deterrence, general deterrence, and denunciation.[93]

The relevant principles regarding sentencing on a contempt application include:

(a) the nature and circumstances of the contempt;

(b) the actual consequences of the contempt;

(c) the effect of the contempt on the administration of justice;

(d) the contemnor's personal circumstances, antecedents and financial means;

(e) the contemnor's culpability;

(f) the contemnor's reasons for his or her conduct;

(g) the need to deter the contemnor and others from repeating the contempt;

(h) whether the contemnor has exhibited general contrition and made a full and ample apology.[94]

I note that in contempt proceedings, any factors relevant to penalty that may be considered aggravating features require proof beyond reasonable doubt.[95]

50 The list of considerations is not exhaustive and each case will depend on its own facts. For example, and as Dixon J noted in Deputy Commissioner of Taxation v Gashi (No 3) (Gashi No 3),[96] factors may include a contemnor's financial means and the absence or presence of a prior conviction for contempt. The character of the contemnor may also be relevant, as may the passage of time since the occurrence of the contempt.[97]

51 Any factors relevant to penalty that may be considered aggravating require proof beyond reasonable doubt,[98] a point also emphasised by Nettle J in Primelife.[99]

52 Imprisonment is to be regarded as a penalty of last resort. Any period of deprivation of liberty is a drastic imposition on anyone and the value the law places on liberty is very high. Before imposing a term of imprisonment, suspended or otherwise, it is necessary for the judge to determine first whether any alternative to imprisonment would be appropriate.[100]

53 A court is not prevented from considering the appropriateness of a fine because a person is bankrupt. A bankrupt is not relieved from any obligation to pay a fine, and any such obligation remains during bankruptcy and after discharge. A fine is not provable in a bankruptcy.[101]

54 The fact that a person is bankrupt or impecunious does not provide a basis for imposing a sentence of imprisonment where one would not otherwise be appropriate.[102]

55 Drawing upon the High Court's observations in Barbaro v The Queen,[103] Justice Forbes in Moira Shire Council recently observed that there were limits on the submissions that a party bringing a charge of contempt can and should make in relation to penalty, emphasising that the determination of the appropriate penalty is for the court to make in the exercise of its discretion.[104]

56 No material issue of principle arose between the parties and they each referred to a number of the well-known principles, observations, and authorities referred to above, and drew heavily from the observations of Champion J in Hera No 1 and the penalty determination reasons in Hera No 2.

57 The plaintiff filed two outlines of submissions, the first on 25 October 2019 and the second on 19 March 2020, which were ably addressed orally at the hearing by the plaintiff in person. Briefly and in substance, the plaintiff relevantly submitted that:

(a) There was an unarguable breach of the Affidavit Order and Freezing Order by reason of the defendant's failure to file and serve an affidavit, and the charge of contempt had been proved beyond reasonable doubt. Further, the Freezing Order was indorsed with a penal notice.

(b) The only issue that remained for determination was '... the imposition of the appropriate penalty'.

(c) Whilst it is generally accepted that disobedience of a court order will usually be a civil contempt, it may be a criminal contempt where the contempt is contumacious, or the proceeding serves a punitive purpose of punishing a past breach rather than a remedial purpose of coercing obedience with the order.

(d) The defendant's contempt was contumacious. The matters to which attention was drawn included: the exchanges at the hearing before Robson J; the preparation of an affidavit being simple and straightforward; the absence of any request for an extension of time to comply with the Affidavit Order; statements made to the plaintiff's solicitors and the court that the defendant would comply; the failure to rectify the default over an extended period; the purpose of the order; and the defendant's knowledge of the order. The plaintiff submitted that the defendant's conduct must be viewed as calculated, wilful, deliberate, voluntary, and defiant as opposed to being technical, casual, accidental or unintentional.

(e) The defendant's agreement to provide redacted statements just before the hearing on 11 April 2019 was not an attempt at compliance but a wilful and deliberate attempt to conceal elements of the defendant's actions. Further, it was submitted that although '... [t]he provision of a statutory declaration could be viewed as at best, a poor attempt at compliance, it still [did] not address the orders that were set by ... Justice Robson which were very clear in what was required ...'.

(f) The purpose of the application was to ensure that the defendant's persistent breach did not go unpunished and that there was 'little or no utility to now have the court coerce obedience' with the Affidavit Order given the passage of time and the impact on the plaintiff's ability to trace the loan advances. It was said that the very purpose of the specific insertion of paragraphs 8.1 (b) and (c) of the Freezing Order had been entirely frustrated by the non-compliance. In this context reference was made to the observations of Champion J in Hera No 2.

(g) The facts in the present case were 'apposite' to those addressed by Champion J in Hera No 1 and Hera No 2.

(h) Drawing on the observations of Champion J in Hera No 2, it was contended that a term of imprisonment would be appropriate taking into account: the contumacious nature of the contempt; the consequences of the contempt through the concealment of information and being shut out from being able to determine if a tracing claim existed; the effect of the contempt on the administration of justice; and the need for specific and general deterrence and denunciation to avoid the risk of a perception developing that freezing orders 'can be disobeyed with impunity ...'. Reference was made in the submissions to the impact upon the plaintiff and upon two of his employers who had advanced funds to the plaintiff for on lending to the defendant as part of the Loan Advances.[105]

(i) The filing of the 12 March Affidavit only occurred '... [o]n pain of impending punishment in relation to [the defendant's] contempt ... [and] Not out of a genuine sense of obligation to fulfil his duty ...'. It was submitted that nothing that the defendant says can be trusted or taken seriously.

(j) If the defendant did in fact have a gambling problem, the sums lost would have been much higher than the amount mentioned in his affidavit in connection with William Hill and, further, the defendant had not validated his attendance at Gamblers Anonymous with evidence.

(k) To the extent that the plaintiff has made an apology it is no more than a 'token', and was effectively disingenuous.[106]

(l) The consequences of the contempt on the plaintiff were significant, as his legal costs were much greater than had initially been anticipated and he had lost the opportunity to recover the funds from individuals named as being recipients of money in the documents and by the defendant's 12 March Affidavit.[107]

(m) A term of imprisonment is appropriate and the imposition of a fine is inappropriate because it would be meaningless given the defendant's financial circumstances. Alternatively, if the court was proposing to impose a fine, 'it should be self-executing so that the failure to comply would result in immediate imprisonment.' The court should not entertain the idea of a 'probationary period' by adjourning the summons in the manner raised by the defendant's counsel.

(n) The defendant should pay the plaintiff's costs on an indemnity basis.

58 The defendant filed an outline of submissions dated 17 March 2020, which was supplemented orally by counsel at the hearing. In substance, it was submitted that:

(a) It was appropriate to apply the principles regarding sentencing on a contempt application in the manner addressed by Champion J in Hera No 2 and to have regard to the nature and circumstances of the contempt; the consequences; the effect on the administration of justice; the personal circumstances, antecedents and financial means of the defendant; the defendant's culpability and reason for the conduct; and whether general contrition had been exhibited and an apology made. In this context reference was also made to Gashi (No 3).

(b) It was admitted and acknowledged that until the defendant made his 12 March Affidavit, the defendant had failed to comply with the Affidavit Order.

(c) Without detracting from the admission, the evidence showed that the defendant attempted to comply with the requirements of paragraph 8.1 of the Freezing Order by supplying bank records and other documents on 10 April and 26 September 2019 to the plaintiff's solicitors, and by providing the statutory declaration on 7 August 2019.

(d) Although it was not suggested that the contempt was casual, accidental or unintentional, it was not contumacious, but was 'somewhere in the middle'.[108] Contempt proceedings brought in respect of a breach of a court order are typically brought to coerce the recalcitrant party into compliance and not to punish the party for that breach, as was said to be the case here.

(e) Relevant matters in this regard were said to include: the defendant being unrepresented for the majority of the proceeding and up until pro bono assistance was obtained; the defendant's consistent engagement with the court and the plaintiff in connection with the proceeding and his attendance at the hearing of the application; the early and consistent admissions made by the defendant in relation to the substantive allegations in the proceeding regarding the non-repayment of the Loan Advances; the defendant being overwhelmed by the circumstances in which he found himself, including in connection with his gambling, financial circumstances, marital breakdown, and inability to obtain legal representation; the limited consequences of the contempt given the information that could be obtained from bank statements and other documents earlier provided; the absence of any delay in relation to the substantive issues in the proceeding or the ability of the plaintiff to enforce the judgment; the absence of any change in the defendant's financial circumstances in any material way since April 2019; the defendant's poor personal and financial circumstances which could properly be characterised as 'a self-made disaster', with the defendant's life 'in chaos';[109] the absence of prior convictions; the defendant's limited resources; the orders having been complied with by the filing of the 12 March Affidavit; the defendant's election not to invoke the privilege against self-incrimination; and the personal references provided to the court in support of the defendant.

(f) The defendant had apologised for his non-compliance, was genuine in his remorse, and there was no sound basis for concluding that the apology was disingenuous.

(g) In the circumstances there was no need for specific or general deterrence.

(h) The circumstances in question could be distinguished from those in Hera No 1 and Hera No 2, because the defendant had at least made some attempt to engage with the plaintiff as to what happened to the Loan Amounts and to provide information (in the form of bank statements) to the plaintiff in April 2019,[110] and had engaged to a significant extent in the court process (in contradistinction to the defendants in Hera, who did not attend court and had attempted to avoid the court process altogether).[111] The facts of the present case could also be distinguished from other contempt cases such as Brown v Brown,[112] another case in which the defendants refused to engage with the court process, and Fortune Holding Group v Zhang (No 2)[113] and Fortune Holding Group v Zhang (No 3),[114] where the contempt in question (breach of a freezing order) was engaged in on 18 separate occasions.[115] Reference was also made to Alpass v Hessian,[116] in which Derham AsJ declined to impose a further penalty on the solicitor in contempt due to his character and personal circumstances.

(i) A term of imprisonment was not warranted as the court could express appropriate condemnation of the defendant's actions without resorting to the imposition of a custodial sentence,[117] but '[a] fine is a possible and appropriate disposition'. It was submitted that the diversion of any substantial amount of money by way of a fine would divert funds that otherwise might be available to the plaintiff in satisfaction of the judgment debt. In addition, it was said to be relevant that the defendant is likely to be subject to an order for the payment of the costs of the application on an indemnity basis.

(j) An alternative disposition could be finding that the defendant was in contempt and adjourning the summons for a period of time (two years was suggested) so as to mark the court's disapproval of the disobedience with a court order while in effect placing the defendant on probation. This would express denunciation and provide a level of specific deterrence in relation to compliance with future orders of the court in the context of the present litigation.

59 The defendant's admitted contempt is properly to be characterised as a civil contempt, not criminal.

60 The application was brought in a civil proceeding in respect of a breach of an order requiring a step to be taken by the defendant in that civil proceeding. As earlier mentioned, a breach of a court order in a civil proceeding is generally described as a civil contempt unless it is found to have been contumacious.[118]

61 Having regard to all of the evidence, and the principles and observations referred to above, in the circumstances of this case it has not been demonstrated that the defendant's contempt was contumacious. It has not been shown to have been calculated to interfere with the course of justice,[119] reflective of a perverse obstinate resistance to authority, deliberately defiant, or contumacious in some other way.

62 Although the defendant admitted the contempt and acknowledged that it could not be described as 'technical, casual, accidental, or unintentional', that does not mean that it was contumacious. As others have observed, even where a contempt is found to be wilful, that of itself does not demonstrate contumacy.

63 As the defendant submitted, there are a number of matters that tend against contumacy and support the submission that, when all the evidence is considered, the contempt '... lies somewhere in the middle ...' of the scale between technical, casual, accidental or unintentional on the one hand, and contumacious on the other. These matters are apparent from the evidence, background and submissions earlier referred to, and it is sufficient briefly to refer to the following.

(a) The defendant being unrepresented at the hearing before Robson J, remaining so throughout the proceeding, and being unable to finance or otherwise obtain legal assistance until early February 2020 when he obtained pro bono assistance from counsel in respect of this application. The email communications record that the defendant unsuccessfully sought to obtain legal assistance through Legal Aid, the Law Institute of Victoria, and through solicitors he was referred to by the Law Institute.

(b) The evidence regarding the defendant's gambling addiction and problems, his financial position, and his somewhat chaotic and difficult personal life and affairs more generally at the relevant time, including his evidence regarding being overwhelmed by the circumstances and the legal process, and his at times limited or lack of understanding. The fact that the defendant indicated to Robson J at the urgent hearing in April 2019 that he understood the nature of the application does not in my view weigh heavily against the defendant with respect to his conduct thereafter. Justice Robson himself was astutely aware of the need for the defendant properly to understand the position, including what was required of him, as may be inferred from his Honour's emphasis on the need for the defendant to obtain legal advice.

(c) Although the plaintiff expressed scepticism regarding the defendant's claim about being overwhelmed and having a limited understanding, the defendant was not cross-examined, and his evidence regarding being overwhelmed and lacking understanding in the absence of legal advice is consistent with various statements made in contemporaneous email exchanges at the time. For example: in the defendant's email of 29 April 2019, which was sent in response to an email from the plaintiff's solicitors regarding the failure to file the affidavit, the defendant stated that he was trying to get legal advice '... As I do not understand fully the orders and what I need to do ...' and that he would be in touch once he received legal advice. In his email of 1 May 2019 the defendant referred to 'serious mental problems' that he had been 'suffering', that he was seeking to obtain legal advice, and that as he had not had '... any legal representation to date, I have been unaware of the processes I have needed to take and not being stable menatally [sic] has caused a delay to all processes. My apologies.' By email of 8 May 2019 the defendant referred to his urgent admission to hospital as a result of blood clots in his chest and later referred to his medical advice that it would take two to three weeks to get back to normal. In an email of 29 May 2019 the defendant referred again to his attempts to obtain advice, wanting all matters to be postponed until after legal advice could be obtained, and that he had attended court without representation and had not '... understood the ramifications ... and have not understood what my obligations were ...'. He also stated that he had not understood '... the documents and [his] obligations in respect of them ...'. The defendant referred again to this lack of understanding in his email of 30 May 2019 in response to an email from the plaintiff's solicitors reminding him of his obligations under the Civil Procedure Act 2010 (Vic). A final example is the defendant's email of 16 September 2019 in which he stated that he '... was not in a good mental state of mind and recently made a call to Beyond Blue to seek some help and assistance ...' and the reason he was mentioning it was because he was '... hanging by a thread ...' and the only thing keeping him going was his ability to work and '... possibly get myself out of the mess I am in'.

(d) The making of the handwritten statutory declaration in the terms referred to above. This occurred after the defendant had seen the Co-ordinator and he had stated in an email that he would be providing a statutory declaration. Although the plaintiff is correct that the making of this declaration did not constitute compliance with the Affidavit Order, it is apparent from its terms that it seeks to address aspects of the information required to be provided by the terms of that order. For example, the declaration: addresses the defendant's financial position; states that he does not have any cash or money anywhere, whether in bank accounts or with others, and states that he is not 'hiding' assets and that he has not '... sold any assets since all this began ...'; refers to attempts made to meet with the plaintiff and his 'legal team' to provide statements; and states that he is '... deeply sorry and remorseful ...' for the situation and that he would like the opportunity to 'make it right'. That said, its content is not complete and relevant omissions include the details of what became of each of the Loan Advances - although it is also true that parts of this information can be obtained from the bank statements and other documents provided in April and September 2019, a point also seemingly contemplated by Robson J in April 2019 when he referred to certain documents speaking for themselves.[120]

(e) The provision to the plaintiff's solicitors of some limited bank statements in April 2019, and further more extensive bank statements and William Hill statements in late September 2019. Although the plaintiff is correct that this did not constitute compliance with the Affidavit Order and followed the issue of subpoenas to third parties, as the defendant submitted, it is a circumstance that is relevant to the consideration of the character of the contempt and what, if any, penalty ought to follow.

(f) The defendant's consistent engagement with the court and the proceeding, including his communications with the court and his appearances in person at numerous directions and other hearings throughout the course of the proceedings, which, incidentally, included appearing at the summary judgment application and admitting liability in respect of the Loan Advances claim.[121]

(g) The defendant's attempts to meet with the plaintiff and his solicitors, which also occurred in circumstances where the court's then procedures did not cater for court-ordered mediations to be directed where a litigant in person was involved. However, it is also to be observed from the email communications that the defendant was not always reliable in terms of doing that which he said he would do. Further, given the defendant's admissions and the money that had been obtained by him from the plaintiff, it is unsurprising that the plaintiff did not feel well disposed towards meeting with the defendant. I add that, given the circumstances, including the defendant's reliability issues, no implied criticism of the plaintiff, or his then solicitors in relation to their substantive approach to requests for meetings, is made or intended.

(h) The swearing and filing of the 12 March Affidavit seeking to comply with the Affidavit Order relatively promptly after obtaining legal advice and assistance from counsel for the first time in February 2020. It is plain from the terms of this affidavit that it seeks to address the various requirements of the Affidavit Order in connection with the information referred to in paragraph 8.1 of the Freezing Order. Although 11 months had passed since the making of the 11 April Orders, the delay is to be considered in the context of the other circumstances, including those referred to above.

(i) The defendant's admission and acknowledgement of his contempt, his substantive engagement with the contempt application, and his apology.

64 I do not accept the submission that the circumstances considered by Champion J in Hera No 1 and Hera No 2 are relevantly similar, comparable, or to employ the plaintiff's language, 'apposite' to the circumstances under consideration. As the matters referred to above and in the affidavit evidence reveal, the circumstances in Hera were quite different. For example, the defendants were deliberately defiant and the circumstances were strongly marked by the defendants' non-engagement with the contempt allegations and the absence of evidence from the defendants that would allow the court to find that the defendants failed to understand the position, or attempted compliance with the terms of the relevant orders. It was also the case that the defendants had been afforded ample opportunity to proffer an explanation for their conduct, which they had failed to do. They also did not appear at the trial and Champion J concluded that the defendants continued to avoid not only the court proceedings but warrants for their arrest that he had directed be issued. Having regard to these and other circumstances particular to that case, Champion J concluded that '... the defendants' conduct had been prolonged and defiant' and therefore their contempt ought to be characterised as contumacious and therefore criminal.[122]

65 It is also not misplaced to emphasise, as many cases do, that each case is dependent on its own facts. In the present case, and having regard to all of the evidence, including the matters referred to above and those raised and referred to by the plaintiff in his submissions, the defendant's contempt has not been demonstrated to be contumacious.

66 To so conclude is not to suggest that the contempt is not serious, or that a number of the observations capably made by the plaintiff regarding the importance of compliance with court orders were without force.[123] The plaintiff was correct to emphasise the importance of court orders being complied with, and it is difficult to overstate the public interest in maintaining the integrity of the judicial process and vindicating judicial authority. That is an important and relevant consideration in relation to both civil and criminal contempt, and as Nettle J observed in Primelife,[124] whilst the aim of a contempt sanction in civil proceedings is primarily coercive or remedial, it is recognised that a punitive aim may be warranted to vindicate the authority of the court. I also refer in this regard to the observations of the plurality in Witham extracted earlier in these reasons.

67 I do not accept the plaintiff's submission that the contempt ought properly to be characterised as criminal because the purpose of the contempt proceeding served only, or primarily, a punitive purpose, as opposed to a coercive or remedial purpose aimed at achieving compliance with a court order. Even if it is assumed that establishing that the purpose of a contempt proceeding is solely or primarily punitive is sufficient of itself for a contempt in a civil proceeding to be characterised as a criminal contempt, which is not necessary further to explore here,[125] it is in my view plain that this has not been established in the present case.

68 The contempt arose in a civil proceeding at a time when the defendant had not complied with the Affidavit Order and complaint had understandably been made regarding that non-compliance. The pursuit of the contempt application has seen the defendant take steps to comply with the Affidavit Order by providing documents in late September 2019 and by swearing and filing the 12 March Affidavit. The application can be seen to have had the coercive or remedial effect of securing compliance with a court order in the manner referred to in the relevant authorities.

69 The point is underscored to some extent by plaintiff's own submission that the 12 March Affidavit had only been supplied on 'pain of impending punishment in relation to his contempt ...', and that this is what has 'forced' the defendant to supply the affidavit, not a '... genuine sense of obligation to fulfil his duty ...'. In substance, this submission identifies the remedial and coercive effect that the contempt proceeding has had.

70 Although it is apparent and may be inferred that the plaintiff has a desire to see the defendant punished, and it is at least possible that the plaintiff regards the sole or primary purpose of the application to be to achieve that end, even if that is so, the purpose of a contempt application is not to be determined in that way or equated with the inferred or expressed subjective intention of the party pursuing the contempt proceeding. This was a point that the plurality in Witham also emphasised.[126]

71 In this context, the observations in Witham and in Primelife earlier referred to again resonate. The purpose of a proceeding in respect of a civil contempt is not limited solely to coercive or remedial ends, it being well recognised that a punitive aim may also be warranted to vindicate the authority of the court where appropriate.

72 I do not accept the submission that the punitive purpose of the application can be inferred because there was no utility in achieving compliance by reason of the lapse of time since the Affidavit Order was made. Whilst it is correct that the plaintiff may have suffered some disadvantage by the delay in compliance with the Affidavit Order, there remained utility in compliance and the provision of the information, as the content of the 12 March Affidavit makes apparent. Whilst that information should have been provided earlier, and the plaintiff is correct that it is of material concern that it was not, the fact is that an affidavit has now been provided which is in the hands of the plaintiff for him to consider and act upon as he considers appropriate or is advised. It may also be observed that although it was submitted that the passage of time will have resulted in prejudicing any tracing or other claim that might be available, that remains to be seen, and speculation in this regard does not materially aid the plaintiff's position in the context of this contempt application. I also note that it was not suggested by the plaintiff, or in the written outline prepared by his former lawyers, that any claims that he may have or wish to pursue in this regard are, or may be, time barred by reason of the delay in providing the 12 March Affidavit.

73 Having concluded that the contempt is properly to be characterised as a civil and not criminal contempt, I turn now to the question of penalty.

74 The contempt is a civil contempt that was not contumacious and occurred in the circumstances earlier referred to, which did involve some mitigating factors of the kind mentioned above. But, even though some attempts were made to provide some of the information required, and there was evidence of the defendant being overwhelmed and not understanding at times, the position remains that the attempts made by the defendant were both inadequate and delayed, ultimately resulting in the defendant not filing any affidavit in response to the Affidavit Order until almost a year had passed since the order was made. That was most unsatisfactory, noting also that the purpose of freezing orders and ancillary orders is to prevent the abuse or frustration of the court's processes.[127]

75 Further, the Affidavit Order sought to address important matters regarding the whereabouts of the large amounts of money comprising the Loan Advances which the defendant had admitted obtaining from the plaintiff on a false basis. The importance of finding out where the money went was explained to the defendant by Justice Robson in plain language. The defendant was also aware from subsequent communications from the plaintiff's solicitors, and exchanges with the court during directions hearings, that the affidavit had not been filed and needed to be attended to.

76 It was also expressly and properly acknowledged by the defendant that the contempt could not be regarded as casual, technical, unintentional or accidental. Even though some information had been provided and the statutory declaration had been prepared, the defendant, who through aspects of his correspondence and his role as a real estate agent presented as a reasonably intelligent person, must be taken to have known that he had not complied with the Affidavit Order and that this was an understandable matter of concern to at least the plaintiff.

77 Although they are relevant circumstances, the fact that the defendant's personal circumstances were challenged at the time and his understanding was not all that it might have been had he been able to obtain legal assistance, does not provide an excuse for non-compliance, as was properly acknowledged by counsel for the defendant. Given the subject matter of the order, the nature and circumstances of the contempt, and the delay in compliance, this is in my view a civil contempt proceeding, where a punitive aim is warranted so as to vindicate the authority of the court and bring home to the defendant and to others the importance of complying with the court's orders. In this context I again echo, with respect, the observations of the plurality in Witham.[128]

78 It is desirable to note that this factor has as its focus the actual consequences of the admitted contempt, not the consequences of the admitted wrongful conduct the subject of the plaintiff's substantive claim more broadly. At times the plaintiff's submissions on this and other matters appeared to gravitate towards concerns or consequences arising as a result of the defendant's admitted wrongful conduct in relation to the Loan Advances as opposed to being limited to the contempt in question. Whilst the plaintiff's position is understandable given the nature, extent, and gravity of the wrongful conduct admitted by the defendant, it is necessary to ensure that the analysis in this context remains appropriately and correctly focussed on the contempt under consideration.

79 I do not accept the defendant's submission that the consequences of the contempt can be accurately described as 'minimal'. They are more than minimal. The failure to comply with the Affidavit Order has meant that the plaintiff has been without some of the information for a considerable period, as the terms of the 12 March Affidavit itself demonstrate, even though it is true that the documents provided in April and September 2019, and the statutory declaration, provided some of the relevant information required by, and relevant to, the terms of the Affidavit Order.

80 It can also be accepted, as the plaintiff submitted, that the plaintiff has incurred additional expenses in connection with the breach of the orders that he would not otherwise have incurred. So much was effectively not contested. Although there was no direct evidence regarding the relevant amounts, it can be inferred from the steps that the plaintiff has taken through solicitors' correspondence, at directions hearings, and in the context of this contempt application, that additional costs have been incurred. It is to be noted, however, that the costs of the substantive proceeding were dealt with in the orders made when summary judgment was granted in December 2019 and the defendant was ordered to pay the plaintiff's costs of an incidental to the proceeding. Further, no order has yet been made in relation to the costs of this contempt application, and the plaintiff seeks indemnity costs - noting also that the defendant himself submitted that he '... is likely to be subject to an order for the payment of costs of this Summons on an Indemnity basis.'[129]

81 Insofar as the plaintiff submitted that, absent the defendant's contempt, he would have had additional time to consider taking, and may have taken, steps to seek to recover amounts paid to others from the funds the subject of the Loan Advances,[130] I accept the substance of that submission. If information had been provided earlier it follows that it could have been considered earlier, and it will be recalled that the Affidavit Order required the affidavit to be filed and served by the defendant by 25 April 2019.

82 However, to the extent that it was submitted that this would have, or would likely have, resulted in claims being made or the recovery of funds from others and that this has now been prejudiced by the passage of time, those matters have not been established on the evidence. What rights the plaintiff may have (or have had) against others is unknown, and whether or not they would have been pursued or may have been prejudiced by the defendant's contempt, cannot be determined at this point, and would necessarily involve impermissible speculation.

The effect of the contempt upon the administration of justice

83 As observed in Witham,[131] '[a]ll orders ... are made in the interests of justice.' Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties. Further, the plaintiff is correct that the defendant's actions '... have prolonged the administration of justice ...' by reason of the delay in carrying out the steps required to be carried out by the Affidavit Order.

84 That said, the contempt did not materially impact dealing with the substantive issues the subject of the proceeding, noting that the defendant admitted the claim in respect of the Loan Advances from effectively the outset, and the application for summary judgment was heard and determined in the plaintiff's favour relatively promptly after it was made. That application could also have been made earlier and the prospect of so doing had been raised directly with the plaintiff by the court. For his own reasons, the plaintiff chose not to pursue such an application at an earlier stage.

85 That the plaintiff '... may have been minded to entertain negotiations surrounding a payment plan ...' if the defendant had complied with the Affidavit Order earlier, is of little moment in the circumstances. Even if such a possibility was established on the evidence (which it was not), the existence of such a possibility, does not in the circumstances of this case weigh heavily on the consideration of the impact of the defendant's contempt on the administration of justice.

86 I have already indicated that I do not accept that it has been established that the defendant's contempt has rendered the Affidavit Order inutile - or as the plaintiff put it, '... useless and futile ...'. I refer in this regard to the observations made in paragraph 72 above.

87 The plaintiff's submissions regarding the importance to the administration of justice of court orders being complied with and vindicating the authority of the court have obvious force. I have earlier indicated that this is a case where, in the interests of the administration of justice, a punitive aim is warranted so as to vindicate the court's authority and bring home to the defendant and to others the importance of complying with the court orders, noting also that the character of the order in question is aimed at preventing the abuse or frustration of the court processes.

88 Although the plaintiff made reference to the court not being able to be 'certain' that the substance of the actual Freezing Order had been complied with, [132] that is not the subject of this application, no contempt charge was made in this regard, and the plaintiff expressly chose not to adjourn the hearing of this application so as to enable additional allegations to be brought forward. It is not a matter that falls for consideration or determination.

The defendant's personal circumstances, antecedents and financial means

89 Counsel for the defendant submitted that the defendant's personal and financial circumstances can '... properly be characterised as a self-made disaster ...', referring to his life having spiralled out of control and being broken. In this context reference was made to matters including his recently passed gambling addiction, his marital breakdown, his challenged financial circumstances, his wrongful conduct in connection with the Loan Advances, and his 'couch surfing' and living with his parents or out of his car from time to time. Reference was also made to the content of the 12 March Affidavit, including the detail set out regarding his financial position.

90 There was no evidence of any prior conviction for contempt or other offences, and the defendant deposed to the absence of any prior contempt in the 12 March Affidavit.

91 Whilst the plaintiff is correct in his submission that the defendant's '... poor financial and personal state due to the effect of the [d]efendants [sic] alleged gambling ...' does not mean that he should not be required to comply with court orders, or be held accountable for his failure to do so, the defendant's personal circumstances, financial means, and antecedents are relevant matters to take into account when considering the question of penalty, as the plaintiff's submissions at least implicitly acknowledge.

92 The defendant is in a very poor financial position. Although he is working as an estate agent and receiving 80% of the commission received by Haven, and says that he has commissions owing to him of about $30,000 that will be 'due and payable within the next few months', he has a number of liabilities that he cannot pay, including the substantial judgment debt in this proceeding. In August 2019 he considered that he was on the 'verge of bankruptcy,' and the plaintiff's creditor's petition against him was pending when the hearing concluded. At that point bankruptcy seemed almost inevitable, as it has turned out to be. I say this because when the parties were informed that judgment in this matter was to be handed down, the court was then informed by email from each party that a bankruptcy order against the defendant was made on 23 April 2020.[133]

The defendant's culpability and reasons for his conduct

93 Both parties are correct that the defendant must bear the responsibility for the contempt. It is also correct that the contempt is to be seen in the light of the circumstances, including: the nature and purpose of the order; the delayed compliance; the defendant's explanation; the provision of some information; the making of the statutory declaration; and the difficulties experienced by the defendant, including the challenges he faced as a litigant in person in dealing with the litigation process.

94 Although the defendant must bear responsibility for the contempt, having regard to the evidence regarding the circumstances and explanation, the defendant's culpability is not in my view at the extremely high end, and I have earlier concluded that it was not established to be contumacious. On the other hand, it was not casual, accidental, technical or unintentional. The defendant was aware that the affidavit had not been filed. This was made plain by the plaintiff on a number of occasions and raised with the defendant by the court. As the plaintiff submitted, the defendant was also afforded ample opportunity to address the issue, and he did not do so in circumstances where he was not unintelligent and where he was able to read the terms of the Affidavit Order, the substance of which was addressed with the defendant in plain language by Robson J at the hearing in April 2019.

95 In the end, and consistent with my observations regarding the proper characterisation of the contempt, having regard to all of the circumstances I have concluded that the defendant's culpability is best described as being somewhere towards the middle of the scale between casual, accidental, technical or unintentional on the one hand, and deliberately defiant or otherwise contumacious on the other.

96 The defendant has squarely acknowledged his contempt and his failure to comply with the Affidavit Orders, also deposing that it was never his intention to avoid providing information to the plaintiff. The defendant was in court, as he has been for other hearings, and a full apology was conveyed to the court on instructions. The 12 March Affidavit records that he had been advised of his rights in relation to the privilege against self-incrimination and that he has made full disclosure to the best of his recollection without availing himself of any claim to privilege. This has also occurred in a context where a number of contemporaneous emails to the plaintiff, and the statutory declaration, contain statements of remorse and apology more generally in relation to his wrongful conduct regarding the Loan Advances. In addition, the 12 March Affidavit has been filed so as to address the terms of the Affidavit Order.

97 The plaintiff submitted that any apology by the defendant ought to be viewed as 'token statements', that no real apology has been made, and that the defendant has sought to dictate to the plaintiff how to proceed. In effect, the plaintiff submits that the court should treat the defendant's apology and remorse as disingenuous.

98 Whilst it is correct that promises were made by the defendant in relation to the provision of materials and the affidavit throughout the history of this matter, these are to be viewed in the context of the evidence regarding the circumstances and the unchallenged material now before the court.[134] The defendant has demonstrated contrition, has sought to comply with the Affidavit Order, has given an explanation on oath regarding his conduct, and has engaged substantively with the contempt application. I am satisfied that the defendant has demonstrated that he is remorseful and that his apology is genuine. I also observe that this is consistent with statements made in the two character references provided to the court (discussed further below), although my conclusion would not change even if these were to be put to one side.

99 In my opinion there is no sound evidentiary or other basis for treating the defendant's contrition, acknowledgement, or apology in relation to this contempt as being disingenuous or token in character.

Specific deterrence, general deterrence and denunciation

100 As I have said, having regard to the circumstances of this case, and in the interests of the administration of justice, a punitive aim is warranted so as to vindicate the authority of the court and bring home to the defendant and to others the importance of complying with court orders, noting again the aim of the orders in question being to prevent the abuse or frustration of the court processes. This conclusion is also underscored by the length of time it has taken the defendant to seek to comply with the order notwithstanding his awareness that it had not been complied with, and the importance of the role that freezing orders and related ancillary orders play in the framework of the administration justice.

101 It will be apparent that, to the extent that it was pressed, I do not accept the submission that there is no need for specific or general deterrence or denunciation, which I observe also sat in tension with the defendant's acknowledgment that the imposition of a fine was a 'possible and appropriate disposition', albeit not the defendant's favoured outcome.

102 Two written character references were tendered to the court on the defendant's behalf without objection, one from a friend of 39 years who grew up with the defendant from the age of 11, and the other from a director of Haven, with whom the defendant has worked for about 5 years and known for about 7 years. These references each reflected positively on the defendant, various aspects of his life, and his approach to the future. Each also referred to their respective knowledge of the defendant's gambling addiction, the charge of contempt, and the debt and proceeding in respect of the Loan Advances more broadly. They referred to the defendant working hard to seek to try and make amends, and each was also consistent with the defendant expressing and displaying genuine contrition and remorse, and accepting responsibility for his actions.

103 The defendant's contempt was a civil contempt but it was material and an appropriate punitive measure is warranted to vindicate the authority of the court and to bring home to the defendant and others the importance of compliance with court orders. As I have said, in part this is informed by the nature of the order, the period involved, and the aim of freezing and ancillary orders being directed at the prevention of the abuse or frustration of the court's process.

104 Although the defendant is now a bankrupt, I have earlier observed that neither bankruptcy nor impecuniosity prevent a court from considering or imposing a fine, noting also that a fine is not provable in bankruptcy and survives the discharge of a bankrupt. Having regard to all the circumstances, and mindful of the relevant principles and observations from the authorities earlier referred to, I have concluded that it is appropriate to impose a fine on the defendant and to make a declaration that he committed contempt of court by reason of his failure to file and serve an affidavit pursuant to the Affidavit Order by 25 April 2019, or at any time prior to 12 March 2020.[135] Rule 75.11 permits the court to make an order for punishment on terms, which I propose to do having regard to the defendant's financial position and bankruptcy. The defendant will be fined $5,000, to be paid no later than 90 days after the date of his discharge from bankruptcy.

105 I do not accept the defendant's submission that adjourning the summons for 24 months (or a lesser period) so as to provide a 'probation period' is an appropriate disposition, even if such a course is open to the court, which it is not necessary further to explore. Given the circumstances, such a penalty would not sufficiently vindicate the authority of the court or have sufficient specific or general deterrent effect.

106 I also do not accept the plaintiff's submission that the defendant's financial position is such that a fine will be meaningless, or that it will not vindicate the authority of the court. The fine is a material but appropriate pecuniary penalty in the circumstances, which include the defendant's bankruptcy and financial position. The order imposing the penalty will require the defendant to pay the fine no later than 90 days after his discharge from bankruptcy, and is imposed in circumstances where the defendant must now be well aware of the importance of complying with court orders. A declaration is also being made regarding the defendant's contempt and, together with the fine, these sanctions sufficiently vindicate the authority of the court and bring home to the defendant and others the importance of obeying court orders.

107 It will be apparent that, contrary to the plaintiff's submission, I do not accept that a term of imprisonment should be imposed. The contempt was not contumacious or of sufficient gravity to warrant imposing a term of imprisonment, suspended or otherwise, noting also that imprisonment is a penalty of last resort and that, as I have determined, other appropriate penalties are available in this case. To the extent that it was submitted that the defendant's inability to pay a fine makes imprisonment a more appropriate penalty in the circumstances, I reject that submission. It is to be remembered that the impecuniosity or bankruptcy of a defendant does not provide a sound basis for imposing a custodial sentence where it is not otherwise appropriate to do so - as is the case here.

108 I also do not accept that a 'self-executing' order should be made committing the defendant to prison if the fine is not paid as required by the order imposing it. Even if it were to be assumed that such a course is permissible or open in the circumstances,[136] the gravity of the contempt and the circumstances do not warrant it, and again, such a penalty is one of last resort and I have determined that there are alternative and appropriate penalties to be imposed. It would also be too far in the future given that the fine is not required to be paid until after the defendant's discharge from bankruptcy, which is quite some time away.

109 For completeness, I add briefly that I accept the defendant's submission that the facts and circumstances in Brown v Brown[137] and Fortune Holding Group Pty Ltd v Zhang (No 2)[138] are materially different to those under consideration and are not relevantly comparable. For the same reason, and contrary to the position of the defendant, Alpass v Hessian[139] does not materially assist him, factually or otherwise.

110 I mention a further matter regarding penalty. Had it been the case that the circumstances were such that imposing a term of imprisonment may have been appropriate, it would have been necessary to address a point not raised by the parties.

111 As is apparent from the summons, the contempt charge was framed by the plaintiff by reference to paragraph 3 of the 11 April Orders, which I have defined as the 'Affidavit Order'. In turn, that order referred to the affidavit being required to include the information referred to in paragraph 8.1 of the Freezing Order 'attached' to the 11 April Orders. Although paragraph 8.2 of the Freezing Order was an order to the same effect as the Affidavit Order, the contempt charge was not framed by reference to that order. This may not be a technicality.

112 A judgment, which includes an order, is not to be enforced by committal or sequestration unless, relevantly, it is indorsed with a notice pursuant to r 66.10(3), warning the person to be served that they are liable to imprisonment or sequestration of property if the order is not complied with. Unsurprisingly, this requirement has been strictly enforced and been seen to be of great importance.

113 A review of the 11 April Orders reveals that these orders did not have a notice pursuant to r 66.10(3) indorsed upon them, although such a notice was indorsed upon the Freezing Order attached to them, being the freezing order referred to in paragraph 1 of the 11 April Orders.

114 Had there been force in the submission that a term of imprisonment should be imposed, either directly or in default of paying a fine, it would have been necessary to raise this issue with the parties to provide an opportunity for them to make further submissions. Given the conclusions I have reached in relation to penalty this is not necessary.

115 I add that this notice issue does not arise where a person is to be punished by way of a fine. This is because r 66.10(3) is directed only to imprisonment and sequestration of property. I refer in this regard to the observations made earlier in these reasons by Nettle J in Primelife[140] and the Court of Appeal in Miller.[141]

116 As others have observed, and the defendant's submissions acknowledged, although the court has an unfettered discretion in relation to costs, it is common in successful contempt proceedings for costs to be awarded on an indemnity basis.[142] The plaintiff seeks his costs on such a basis.

117 On the evidence and the submissions made so far, and as a preliminary observation only, it would appear that this may be an appropriate case in which to make an indemnity costs order of the kind sought by the plaintiff, noting also that the defendant submitted that it was likely that an indemnity costs order would be made against him. That said, it is desirable that the defendant be provided with a further opportunity to make additional brief submissions on the question of costs should he wish to.

118 The defendant has acted in contempt of court. A declaration is to be made to that effect and a fine of $5,000 is to be imposed, with payment to be made no later than 90 days after the date of his discharge from bankruptcy.

119 It is proposed to make orders to the following effect:

(a) The court declares that the defendant, Nikolaos Haidaris, has committed contempt of court by breaching paragraph 3 of the orders made by the Honourable Justice Robson on 11 April 2019 by failing to file and serve an affidavit setting out the information referred to in paragraph 8.1 of the interim freezing order of Justice Robson made on 11 April 2019, by 4pm on 25 April 2019, or at any time before 12 March 2020.

(b) The defendant, Nikolaos Haidaris is fined $5,000, to be paid no later than 90 days after the date of his discharge from bankruptcy.

120 I conclude by acknowledging the contribution of Mr Lithgow of counsel by providing pro bono assistance to the defendant. The significance of the contribution made to the administration of justice by those willing to provide pro bono assistance to parties with limited means is difficult to overstate.

[1] The total of the funds advanced by way of loan to the defendant was $1,170,000, of which only $90,000 had been repaid.

[2] [2019] VSC 806.

[4] And was indorsed with a notice pursuant to r 66.10(3).

[5] But subject to the defendant's express entitlement to exercise his rights in respect of self-incrimination or exposure to a penalty, as was reflected in paragraph 9 of the Freezing Order. In the defendant's outline of submissions and at the hearing counsel for the defendant informed the court that the defendant had received advice in relation to these matters and had chosen not to exercise any such rights in connection with the application.

[6] Being the information referred to in paragraph 8.1 of the Freezing Order. In substance and effect, paragraph 8.2 of the Freezing Order required the same thing as the Affidavit Order in paragraph 3 of the 11 April Orders. However, the charge of contempt was formulated by reference to the Affidavit Order and not paragraph 8.2 of the Freezing Order.

[7] See the two orders of Connock J made on 2 May 2019 and the orders of Connock J made on 31 May and 11 June 2019.

[8] Plaintiff's summons at [1], but adjusted where indicated so as to incorporate the defined terms adopted in these reasons. A number of additional alleged breaches of the Affidavit Order regarding the adequacy of the defendant's affidavit of 12 March 2020 were raised in the plaintiff's affidavit and further outline of written submissions filed on 19 March 2020 shortly before the hearing, but these were not pressed by the plaintiff and the affidavit was 'withdrawn' and not relied upon. As was submitted by counsel for the defendant and addressed at the hearing, had the plaintiff sought to press additional contempt allegations regarding the adequacy of the affidavit of 12 March 2020 or any other matters, fairness would have required any additional alleged contempt or charges to be clearly formulated, adequate notice to be given, and a proper opportunity afforded to the defendant to respond. This would have necessitated an adjournment of the hearing of the existing application. Although the plaintiff was informed that he would be afforded the opportunity to proceed in this way and pursue additional matters if he wished, and noting that the late notice issue was not caused by the plaintiff but was a consequence of the defendant not filing an affidavit until 12 March 2020, after taking some time to consider the matter whilst the hearing was stood down, the plaintiff elected to pursue only the existing and more narrow allegation of breach and contempt regarding the failure to file an affidavit by the due date or thereafter (until 12 March 2020). See Transcript at 1:25-16:23.

[9] Discussed further later in these reasons.

[10] Through the Victorian Bar Pro Bono Assistance Scheme.

[11] The proposed form of the declaration is addressed later in these reasons.

[12] The plaintiff's solicitors filed a notice of ceasing to act on 29 January 2020.

[13] See the plaintiff's outline of submissions dated 25 October 2019 at [19], [23] and footnotes 19 and 26. See also Transcript 59:14-29.

[14] Noting that an objection had initially been taken to the plaintiff's affidavit sworn 19 March 2020 but that this became moot when the plaintiff withdrew the affidavit and no longer sought to rely upon it. See also note 7 above.

[15] And the additional affidavits to which he referred.

[16] This email was exhibit 'MJK-16' to Mr Kenny's affidavit sworn on 9 April 2019.

[17] This was referred to in more detail in my reasons in Koulouris v Haidaris [2019] VSC 392 (Koulouris No 1) at [7].

[19] Transcript 11 April 2019, 11:6-13:21.

[20] A number of the communications passing between the parties in the period up to the hearing on 11 June 2019 are referred to in a different context in Koulouris No 1, [10]-[21].

[22] Which is the real estate agency that the defendant was associated with at the time and is still engaged by.

[23] As earlier mentioned, the plaintiff filed an affidavit in response sworn on 19 March 2020 in which statements were made regarding the adequacy of the 12 March Affidavit and other matters, although this was 'withdrawn' and not ultimately relied on by the plaintiff. See footnote 8 above.

[26] [2019] VSC 483, [66]-[81] (footnotes as in original).

[27] Legal Services Board v Forster (No 2) [2012] VSC 633, [43].

[28] Witham v Holloway (1995) 131 ALR 401, 408 ('Witham'); Deputy Commissioner of Taxation v Gashi (No 2) [2011] VSC 351, [17] ('Gashi (No 2)'); Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738, [19] ('Zhang (No 2)').

[29] National Australia Bank v Juric [2001] VSC 375, [37]; Advan Investments v Dean Gleeson Motor Sales [2003] VSC 201, [31]; Gashi (No 2) (n 31), [18]; Zhang (No 2) (n 31), [33].

[32] See, eg Zhang (No 2) (n 31), [20].

[33] [2014] VSCA 261 ('CFMEU v Grocon').

[34] Ibid, [179], citing Rich v Australian Securities & Investments Commission [2004] HCA 42; (2004) 220 CLR 129, 145 [32], [33], 148 [41].

[37] [2015] HCA 21; (2015) 256 CLR 375. The proceedings concerning Grocon Constructors (Vic) Pty Ltd were not appealed to the High Court, which is why the case name refers to Boral Resources (Vic) Pty Ltd instead.

[39] Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92, [58], citing Witham (n 31) and Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.

[40] CFMEU v Grocon (n 36), [277]. See also eg National Australia Bank Limited v Juric [2001] VSC 375, [158]-[160]; Pico Holdings, Inc v Voss [2002] VSC 319, [55], [70], [81]-[84]; Deputy Commissioner of Taxation v Gashi & Anor (No 3) (Gashi (No 3) [2011] VSC 448, [11], [16], [18]; Chan v Chen (No 3) [2007] VSC 52, [9].

[41] CFMEU v Grocon (n 36), [138], citing Anderson v Hassett [2007] NSWSC 1310; Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 111; Matthews v Australian Securities and Investments Commission [2009] NSWCA 155, [16]; Lane v Registrar of the Supreme Court of New South Wales [1981] HCA 35; (1981) 148 CLR 245, 258; Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 144 and R v Rogerson, Nowytager and Paltos [1992] HCA 25; (1992) 174 CLR 268, 278.

[42] Advan Investments v Dean Gleeson Motor Sales [2003] VSC 201, [51].

[43] Commissioner for Consumer Protection v Armstrong (No 4) [2015] WASC 8, [31].

[44] CFMEU v Grocon (n 36), [136], [138], [140]-[142] (citations omitted).

[45] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11.

[46] Australasian Meat Industry Employee's Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98; Markisic v Commonwealth of Australia [2007] NSWCA 92; Advan Investments v Dean Gleeson Motor Sales [2003] VSC 201.

[49] Vaysman v Deckers Outdoor Corporation [2011] FCAFC 17 per Bromberg J at [178]; Jones v ACCC [2010] FCAFC 136, [36]; Langer v Australian Electoral Commission (No 2) (1996) 59 FCR 463.

[50] See eg. Chan v Chen (No 3) [2007] VSC 52; and Deputy Commissioner of Taxation v Gashi & Anor (No 3) [2011] VSC 448 (Gashi (No 3)).

[52] (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ).

[53] (1995) 183 CLR 525, 531-535 (Brennan, Deane, Toohey and Gaudron JJ) (footnotes omitted).

[54] [2018] VSCA 280 (footnotes as in original).

[55] Morgan v State of Victoria [2008] VSCA 267; (2008) 22 VR 237, 253-4 [91] (Nettle and Ashley JJA, Pagone AJA agreeing); Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483, 489 (Barwick CJ), 496 (Windeyer J).

[56] Hinch v A-G (Vic) (No 2) [1987] HCA 56; (1987) 164 CLR 15, 49 (Deane J); Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ) ('Witham').

[58] Section 278 permits a person sentenced for an offence by an originating court to appeal to the Court of Appeal against the sentence imposed if the Court of Appeal gives the person leave to appeal. By s 3(1), an 'originating court' includes the Supreme Court in its 'original jurisdiction'; and 'original jurisdiction' includes 'a proceeding for contempt of court'. See also Allen v The Queen (2013) 36 VR 565, 569 [16] (Priest JA).

[59] Witham, 530; Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 108 (Gibbs CJ, Mason, Wilson and Deane JJ) ('Mudginberri').

[60] Witham, 531; Mudginberri, 106.

[62] [2019] VSC 569 (footnotes in original).

[63] It may also be noted that the law of contempt has recently been the subject of a review by the Victorian Law Reform Commission. A Consultation Paper was released on 15 May 2019 and the Victorian Law Reform Commission delivered its report on 28 February 2020, although at the time of delivery of these reasons the report had not yet been tabled in Parliament and had therefore not yet been made available to the public.

[64] Witham v Holloway (1995) 183 CLR 525 ('Witham') [534].

[65] Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 107.

[66] Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; [2014] 47 VR 527 ('Grocon') 563 [136].

[69] (1985) 9 FCR 194 ('Mudginberri (FFC)').

[72] [2013] NSWLEC 35 [23].

[73] [2012] NSWSC 82.

[76] [2003] VSC 106.

[77] At [18], citing Witham v Holloway (1995) 193 CLR 525 at 534.

[80] At [35]-[36] (footnotes in original).

[81] See Windsurfing Inc v Sailboards Pty Ltd [1986] FCA 384; (1986) 19 FCR 110 at p113.7, per Burchett J and Bourke Shire Council v Dwyer (1993) 79 LGERA 185 at p186, per Talbot J.

[82] See Hugo Rich v The Attorney General for the State of Victoria [1999] VSCA 14 at [46]; National Australia Bank Ltd v Juric (No 2) [2001] VSC 398 at [57].

[83] [2004] VSCA 211.

[84] At [38] (Vincent JA, Batt and Buchanan JJA agreeing). The same approach was taken by the Full Court of the Federal Court of Australia in Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118; (2006) 152 FCR 129 [69]-[74] (North, Goldberg and Weinberg JJ).

[85] [2018] VSCA 280 (footnotes as in original).

[86] At [56] (Priest and Beach JJA and Macaulay AJA).

[87] Doyle v The Commonwealth (1985) 156 CLR 510, 516 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ) (citations as in the original).

[88] [1953] HCA 48; (1953) 90 CLR 573, at pp 579-580.

[89] [1868] UKLawRpPC 10; (1868) LR 2 PC 106, at p. 120.

[90] [1940] VicLawRp 68; [1941] VLR 77, at p. 81.

[92] [2019] VSC 625 (footnotes as in original).

[93] R v Derryn Hinch [2013] VSC 554, [12].

[94] Deputy Commission of Taxation v Gashi (No 3) [2011] VSC 448 [5]; R v Witt (No 2) [2016] VSC 142 [93], citing DPP v Johnson [2002] VSC 583 [55]-[60]; R v Age Co Ltd [2008] VSC 305 [22]; Alfred v CFMEU (No 2) (2011) FCA 557 [14]; Bovis Lend Lease Pty Ltd v CFMEU (No 2) (2009) FCA 650; Grocon v CFMEU [2014] VSC 142 [77]-[78].

[95] Primelife (No 7) [39], citing R v Storey [1998] 1 VR 359, 369; Cheung v R (2001) HCA 67 [14].

[96] [2011] VSC 448, [5].

[97] See, for example, R v Witt [2016] VSC 142, [93] (J Forrest J).

[100] Vaysman v Decekers Outdoor Corporation Inc [2011] FCAFC 17 (Vaysman), [54] (Gray, Besanko and Bromberg JJ).

[101] See Vaysman at [56] and Cooper v Chopsonion Pty Ltd (No 2) [2018] FCA 1504, [2] (Besanko J).

[102] Hera No 2, [56], citing Jones v Toben (No 2) [2009] FCA 477, [83] and Vaysman at [54].

[103] [2014] HCA 2; (2014) 253 CLR 58.

[104] Moira Shire Council [2019] VSC 569, [28].

[105] These matters were not expressly addressed in the affidavits relied upon, noting that the plaintiff did not rely on his affidavit of 19 March 2020. They were referred to in the contempt application in the plaintiff's affidavit of 2 April 2019 relied on at the hearing before Robson J. Whether or not they are taken into account does not affect the conclusions reached in this case.

[112] [2019] VSC 666.

[113] [2017] VSC 738.

[114] [2018] VSC 22.

[116] [2017] VSC 748.

[118] See below for the discussion regarding the purpose of the contempt application.

[119] In the sense referred to by Champion J in Hera No. 1.

[120] Transcript 11 April 2019, 13:21.

[121] See Koulouris No 2 [2019] VSC 806.

[122] See Hera No 2 [2019] VSC 625, [10]-[25].

[123] Who appeared in person at the hearing of the contempt application but had been represented by solicitors and counsel until 30 January 2020.

[124] [2003] VSC 106 at [32], and referred to above.

[125] But as to which see, for example, Hera No 2 at [10], [26]-[28] noting the reference to 'may', and the observations in Witham referred to in the principles section of these reasons above.

[128] At 532-534, aspects of which are extracted above.

[130] See plaintiff's second outline of submissions at [19(b)], including the particular reference to the transfer to Ben Johnson and the transfer of $175,015.

[132] As opposed to the Affidavit Order.

[133] The court was also informed by the plaintiff that the effective date of bankruptcy was 20 January 2020.

[134] Which was not the subject of cross-examination.

[135] I note in passing that counsel for the defendant submitted that a fine '... is a possible and appropriate disposition ...'. He also submitted that a fine would 'effectively divert funds' away from the plaintiff - and raised the alternative of adjourning the summons for 24 months. Reference was also made to the likelihood of the defendant being subject to an indemnity costs order.

[136] As to this assumption, I draw attention to the pre-emptive nature of that which was proposed. I refer to the discussion in Chan v Chen (No 3) [2007] VSC 52 (Kaye J) [23]-[25], Slaveski v R (On the Application of the Prothonotary of the Supreme Court of Victoria) [2012] VSCA 48; (2012) 40 VR 1 (Warren CJ and Nettle and Redlich JJA) [91]-[94], and R v Witt (No 2) [2016] VSC 142 (J Forrest J) [89], [134]-[136]. See also r 75.11(4). Given the conclusion reached it is not necessary to engage further with this topic.

[137] [2019] VSC 666.

[138] [2017] VSC 738.

[139] [2017] VSC 748.

[140] [2003] VSC 106, [35]-[36].

[141] [2004] VSCA 211, [38] (Vincent JA, Batt and Buchanan JJA agreeing). See paragraphs 46 and 47 above.

[142] See, for example, Hera No 2 at [61] (Champion J); Gashi (No 3) at [20] (Dixon J); National Australia Bank Ltd v Juric [2001] VSC 375, [67]-[70] (Gillard J); Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, [120] (Gillard J); Scott v Evia Pty Ltd [2007] VSC 15, [34]-[38] (Dodds-Streeton J); and Moira Shire Council v Sidebottom [2018] VSC 556 [140] (Zammit J).