REASONS FOR JUDGMENT
1 Mr Tony Gregory Purdon is the second respondent in proceedings which were instituted in this Court in 2009 by Plastec Australia Pty Ltd (Plastec Australia) against him, a company which, with his wife, he controls, Plumbing Solutions and Services Pty Ltd (Plumbing Solutions and Services), the first respondent, and a further person, Mr Martin, the third respondent. Those proceedings were, so it was thought at the time, resolved by the making of orders by Greenwood J by consent on 14 June 2011. Those orders, together with an agreed joint statement for publication, carried into effect the terms of a compromise recorded in a deed as between Plastec Australia, Mr Purdon, and Plumbing Solutions and Services, the terms of which are confidential, as between the parties.
2 In a compressed period following the making of the orders, Mr Purdon came to make statements which have become the subject of a charge of contempt. In its amended form, the charge is in the terms attached as annexure to the reasons for judgment. Mr Purdon today pleaded guilty to the contempt charge. In so doing, he admitted that the statements which form the basis of the allegations in the charge were made by him and were wilful in the sense they were deliberately made by him.
3 Mr Purdon did not, in so doing, admit that he intended, by the making of those statements, deliberately to breach the orders that had been made on 14 June 2011. Plastec Australia accepted that was so and did not press for a finding that the charged conduct constituted by the making of the statements was contumacious. Submissions were made thereafter as to the appropriate penalty which ought to be imposed in respect of the acknowledged contempts.
4 This Court's power to punish contempts is set out in s 31 of Federal Court of Australia Act 1976 (Cth). It is ultimately referable, via s 24 of the Judiciary Act 1903 (Cth) in its application to the High Court of Australia, to the power and authority possessed in 1903 in respect of the punishment of contempts by the Supreme Court of Judicature in England.
5 That this particular conduct was not contumacious has the consequence that the contempts concerned are not criminal contempts. As Young J observed in Australian Competition and Consumer Commission v Contact Plus Group Pty Ltd (in liq) (ACN 086 261 798) (No 2) (2006) 232 ALR 364 at [26]:
It is not necessary to prove any subjective intent to disobey an order of the court: INFO4PC at [10]; Hughes at [20]. A deliberate commission or omission in breach of an injunctive order constitutes wilful disobedience and will amount to a contempt. Such a contempt is usually classed as a civil contempt. Depending on the circumstances, a deliberate act in disobedience of an order can amount to a criminal contempt. A contempt which is the result of an act of defiance, resulting in a deliberate breach of a court order, can be described as contumacious and as criminal in character: see Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 108 ; 66 ALR 577 at 584 (Mudginberri); Holloway at CLR 530; ALR 405.
6 All contempts are serious. That said, there is a range of seriousness manifested by, in the first instance, a distinction between a civil and a criminal contempt. Within those broad categories, particular facts will then give rise to differing degrees of seriousness. The reason, though, and it is a fundamental one, why all contempts are serious, is that they strike at the very heart of a feature of our society and our heritage in British justice. That is, they strike at a system of justice according to law, a system in which disputes between citizens, be they corporate citizens or individuals, are adjudicated where necessary by judges who enjoy independence, and who make decisions according to the laws of our country. Those decisions, when reflected in a court order, must, unless there is a reasonable excuse, be obeyed. They must be obeyed while the order is in force. The order in question remains in force; in this case, on an indefinite basis. The alternative to justice, according to law, is a system whereby the strong can prey upon the weak and where vigilantes supplant civilised behaviour.
7 The applicant, Plastec Australia, in bringing this proceeding, is not just serving private ends to which I shall avert shortly. It is also serving an important public interest, which is drawing to the attention of a court an allegation, which has come to be admitted, of a breach of a court order.
8 Our system of justice depends upon respect for and obedience to court orders. Mr Purdon, I am quite convinced, understands that now. I am prepared to accept and do accept that he understood it in June, July, August and September 2011 which is the compressed period to which I earlier referred.
9 The immediate background, to the charge is, as I have said, the orders that were made as a consequence of the compromise of the present proceeding. There is now a wider background and it is necessary, in terms of determining the appropriate penalty, to consider both aspects of the case as well as Mr Purdon's particular personal circumstances.
10 In terms of the immediate background to the conduct charged, the orders of 14 June 2011 contained restraints on Mr Purdon and also Plumbing Solutions and Services from:
(a) publishing or in any way making known to any person or entity the contents or any statement to the like effect of the "First 9 September email", the "Second 9 September email" or the "Purdon report"; and
(b) publishing or making known to any person or entity any statement inconsistent with the terms of the agreed joint statement.
To understand the material part of the agreed joint statement, it is necessary to set out in a little detail how particular Australian Standards come to have application to the products of Plastic Australia, and also to understand the role being undertaken in June, July, August, and for that matter, to date by Mr Purdon.
11 Mr Purdon's company, Plumbing Solutions and Services has a contract with the Banana Shire Council in Central Queensland pursuant to which he discharges duties as a plumbing inspector for the Council. Mr Purdon has the requisite qualifications and experience to discharge such an office. The duties and powers of a plumbing inspector performs and exercises are set out in the Plumbing and Drainage Act 2002 (Qld) (Plumbing Act): see particularly s 108 to s 114. The last of those sections, s 114, makes a plumbing inspector an authorised person for the purposes of the Local Government Act 2009 (Qld) (Local Government Act). That, in turn, engages powers under that Act in relation to the entry to property and the enforcement of complaints both under the Local Government Act and the Plumbing Act.
12 As the title of the office suggests, it falls to a plumbing inspector to inspect and certify as compliant plumbing installations. The certification is of compliance both with the Plumbing and Drainage Act and its subordinate regulations as well as other provisions or codes incorporated by reference, notably the Plumbing Code of Australia.
13 Amongst other things, Plastec Australia manufactures swivel and expansion joints. There was a controversy which became the subject of the present proceeding about whether a Plastec Australia fitting could be joined to a PVC pipe or fitting by way of what is termed "type N solvent cement".
14 The relevant passage from the Plumbing Code of Australia is:
A2.1 SUITABILITY OF MATERIALS AND PRODUCTS
(a) Every part of a plumbing or drainage installation must be constructed in an appropriate manner to achieve the requirements of the Code, using materials and products that are fit for the purpose for which they are intended;
(b) Materials or products listed in Table A2.1 which are used in plumbing or drainage installations must be certified and authorised;
(c) Product Certification and Authorisation must meet the certification and authorisation procedures set out in Part G of this Code - "Materials and Products Certification and Authorisation";
(d) All materials and products intended for use in contact with drinking water must comply with AS/NZS 4020 and be certified and authorised in accordance with Part G this Code;
(e) Any new or innovative material or product must be assessed, certified and authorised, if required, in accordance with Part G of this Code prior to their use in a plumbing or drainage installation;
(f) A material or product exempted from certification under this Code is authorised for use in a plumbing and drainage installation if it is certified as complying with the appropriate Australian Standard(s) in accordance with A2.2;
(g) A material or product used in a fire fighting water service is authorised for use if it is certified by a recognised boy as complying with the relevant Australian Standard(s) for the specific application;
(h) A material or product used in a stormwater installation is authorised for use if it is certified by a recognised body as comply with section 2 of AS/NZS 3500.3 in accordance with A2.2.
[emphasis in original]
15 It permits products to be used in plumbing installations which have been certified by an independent certifying assessment body.
16 Standards Australia is and was such a body. Where a certifying assessment body such as Standards Australia has, in respect of a product use, to its compliance certified with an Australian standard or an Australian technical specification. installation work employing that product use will fall within the terms of the installation work permitted by the Plumbing Code of Australia, and therefore, be work which can be certified under the Plumbing and Draining Act.
17 Plastec Australia, in respect of fittings received a WaterMark certificate of conformity which is an indicator that products comply with relevant standards. Its fittings, according to the certification, have been evaluated to Australian Technical Standard 5200.055:2008 Technical Specifications for Plumbing and Drainage Products, Part 055, Plastics Fittings, Connectors with Flexible Intermediate Joints for Drainage and Sewerage Applications (Australian Technical Standard) - exhibit SH15 to the affidavit of Sydney Hawthorne filed 13 November 2009.
18 Suffice it to say, the two 9 September emails referred to in the order and the Purdon report called into question the suitability of the Plastec Australia product for joinder using "type N solvent" between PVC and ABS plastics pipe or fittings.
19 Against that background, the agreed joint statement provided at paragraphs 2 and 3:
(2) ATS500.055:2008 allows a valid pathway for the certification of products for use in joining ABS to UPVC with type N solvent cement in the flexible joint circumstances described in that ATS.
(3) AS3879 identifies classes of material suitable for joining plastic swivel and expansion joint fittings for plumbing and drainage specifications in Australia ABS pipes and fittings shall be authorised in accordance with Plumbing Industry Regulations clause 4.8 of Australian Standard 3690:2009 does not apply to plastic swivel and expansion joint fittings when used in association with PVC pipe.
20 The importance of a WaterMark certification against an Australian Technical standard or an Australian technical specification is that it provides a sufficient foundation for the permissible use of the product as a plumbing solution or, as an alternative solution, in terms of the Plumbing and Drainage Regulations. The effect of each of the statements which have become the subject of the charge is that the standards don't permit such a join. That is inconsistent with the joint agreed statement and otherwise inconsistent with and in breach of the restraints, which were the subject of the order of 14 June 2011.
21 In his affidavit read on his behalf on the hearing as to penalty, Mr Purdon deposed that his discussions with Ms Caldwell-Owens and Mr Anderson arose in the context of his concerns that, if plumbing work is allowed to be installed without compliance with best practice, there are likely to be significant problems subsequently for home owners, contractors and the Banana Shire Council. He accepts that he did not mention, and that he should have mentioned that there was, at the time, a valid pathway for joining ABS plastics to PVC, namely, where the user could show there was no loss of joint and shear strength as required by the Australian technical standard.
22 One way of showing that valid pathway is where one has the WaterMark certification and is joining it in a way which is taken to constitute an alternative pathway. Mr Purdon says that he failed to mention this option because it was his experience that valid or alternative pathways are largely irrelevant for people on the front line of plumbing. Whether or not that is so, they are valid pathways and the terms of the restraint, including the terms of the joint agreed statement, meant what they said. Mr Purdon regrets, and I accept that that the regret is sincere, that he did not make the requisite clarification.
23 As I have already recorded, it is accepted that in so doing Mr Purdon did not deliberately set out to breach the Court's orders. It is not necessary of course that that be proved in order for there to be a contempt, but it is certainly relevant as to penalty.
24 Mr Purdon deposes, and I am well satisfied, that he understands the serious nature of the charge brought against him, and of the seriousness of breaching a court order.
25 As it happens, the Australian standard concerned has recently been amended such that table 9.2 of Australian Technical Standard 3500 includes, as a permissible joining method, the application of solvent cement as an appropriate method of joining ABS/ASA products to PVC fittings.
26 Mr Purdon refers in his affidavit to the recent amendments to the Australian Technical standards resolving any ambiguity that may have hitherto existed as to joining methods. Whether or not that is so is something of a diversion in the sense that the restraints and the joint statement set out a particular position which was to be obeyed by Mr Purdon and his company, whether or not there may have been any ambiguity. So far as the future is concerned, I accept though that the particular need to qualify statements which were careless by reason of their incompleteness is unlikely now to arise because of the explicit provision in the standard.
27 What punishment, if any, should be imposed upon Mr Purdon? He has acknowledged the contempts charged, and did so by way of advance signification to those acting for Plastec Australia and to the Court. That, in itself, amounts to a mitigating factor, and I am sure underscores the nature of his regret. It is not just a regret at being caught or facing court proceedings, but I am sure that the way he has approached the case underscores as well his understanding of the seriousness of complying with court orders and reflects an understanding on his part that the conduct concerned should not have occurred.
28 Mr Purdon has to date led a blameless life. He has achieved well in his chosen trade both in terms of his technical trade qualifications in which he has received admirable results, as well as in his development of a plumbing consultancy company. He has done this, as both his affidavit and his father's note tendered today attest, even in the face of a lifelong hearing impairment, which he has overcome and overcome in a way which has permitted him fully to discharge his duties as a plumber in years gone by and now as a plumbing inspector. There is much to admire about that.
29 Mr Purdon also is married and supports his wife and four young children. To look at Mr Purdon's affidavit in terms of financial outlays is to look at a typical young Australian family in terms of parental responsibilities, income-earning responsibilities (which are shared) mortgage responsibilities and all of the burdens and benefits of family life. Mr Purdon's company's contract with the Banana Shire Council takes him away for extended periods from his home base. That in itself, I am quite sure, causes more than the usual stresses in family life. It is though a rewarding occupation and business that he has built up.
30 There are many themes which run in the background of this case against the major theme of vindication of the administration of justice. One is the importance of Australian Technical standards as a level playing field which manufacturers can aim to meet and then market products, tradesmen can act upon confidently, and plumbing inspectors can assess against. Conduct which has a tendency to subvert standards is serious. Equally, it is important that the independent value judgments of plumbing inspectors not be subverted. No less important though is that, where standards are applicable and acknowledged to apply in a certain way, that is how they are administered. Plastec Australia's interest, given a market in which it and another are, for all practical purposes, the only competitors, has obvious commercial overtones. Again, though, it is important that where it has taken the time, trouble and expense to secure compliance with Australian Technical Standards, it enjoy the benefit of that, and for that matter, that the consumer enjoy the benefit of knowing that a product meets that standard.
31 They are though background themes. The principal matter is a court order disobeyed. The alternatives in respect of sentencing are a fine or imprisonment or some combination. Imprisonment need not be by way of immediate committal to jail. In Australian Securities & Investments Commission v Reid [2002] FCA 84 Kenny J adopted a particular form of sentence which strikes me as germane to the facts of this case. What her Honour did was to order the committal of the respondent concerned to prison, to order the issuing of the related warrant, but then to order that, until further order, that warrant lie in the registry with the intent that it not be executed provided that, for a period which her Honour nominated in the order or until the order the subject of the charge, had ceased to operate, the respondent abstain from contravention of the underlying court order and then engage or not engage in the particular behaviour which was the subject of that case.
32 The reason why I am persuaded that that type of order is germane in this case is that it provides a form of self-directed behaviour by Mr Purdon in terms of compliance. It is not probation for there is no power to order that, but there are similarities in terms of practical effect. Another reason why it seems to me that is preferable to immediate imprisonment is that the latter would carry with it, automatically, a termination of the Plumbing Solutions and Services contract with the Banana Shire Council. It is obvious from Mr Purdon's affidavit that that contract is the most important source of income for his family. It is also obvious that since the conduct charged, he has, on scores of occasions, undertaken certification work without cause for any complaint whatsoever.
33 There may well be other ramifications which would flow with virtual certainty from an order for immediate imprisonment in terms of his trade qualification or certification. It is not my intention that there be any such immediacy or certainty of that type of outcome as a result of this proceeding. There are value judgments which will fall to others, the Council or trade licensing authorities, to make. The observation that I make is that there is, as was submitted on his behalf, cause for optimism in relation to Mr Purdon. The intention of making an order which suspends the operation of a warrant is to allow him to vindicate that cause for optimism.
34 I make it plain though that any contravention will almost certainly be visited with execution of the warrant for the imprisonment concerned and will also, in itself, separately amount to a contempt in respect of which the consequence may well be cumulative imprisonment. I also make it plain that it is not in any way part of the suspension that Mr Purdon, in any way, be impeded from the lawful discharge of his duties as a plumbing inspector and from the making, in good faith, of value judgments associated with the discharge of his duties. It is just that in respect of a particular subject there are agreed orders. Those agreed orders of the Court certainly have an understandable foundation in Australian Technical Standards.
35 A fine does not strike me as appropriate here to the circumstances. That is so because, as I have indicated, there is a need, in my view, in terms of the punishment for this contempt for a period which will allow Mr Purdon to vindicate the cause for optimism that is present. A fine would not do that.
36 As to costs, the usual, but not mandatory order in a case such as the present is for an applicant to have its costs on an indemnity basis. There are good reasons for that being a usual order being associated with the public interest served by the Court having drawn to its attention what comes to be a proved contempt. I propose, therefore, to make an order that Plastec Australia have its costs on an indemnity basis.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.