CONTEMPT - power of committal - exercise of inherent power of the Court as distinct from application of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Source
Original judgment source is linked above.
Catchwords
CONTEMPT - power of committal - exercise of inherent power of the Court as distinct from application of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Judgment (2 paragraphs)
[1]
Judgment - EX TEMPORE
Revised and reissued 7 May 2019
In Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No. 2) [2018] NSWSC 1776 I found that the ninth defendant, Harold James Price, had committed contempt of court by wilfully failing to comply with orders that the Court had previously made. I must now consider what action the Court should take against Mr Price as a result of his contempt.
I delivered my decision finding that Mr Price had committed contempt on 23 November last year. The hearing on what orders should follow from that was fixed for 9 April this year. Unfortunately, it could not proceed on that day because the parties had not given consideration to a recent decision of the Court of Appeal. The proceedings were adjourned to allow the parties to consider the effect of that judgment and to place further submissions before me as a result of it. That has now been done and further evidence has also been led beyond that which had been notified to be led at the hearing on 9 April.
In my November judgment, which I will refer to as the "contempt judgment", I relevantly found that Mr Price had wilfully failed to deliver up six trucks or trailers (which were referred to in that judgment, and which I will continue to refer to, as "vehicles") in accordance with the Court's order of 27 July 2018. By that order, the Court required Mr Price to deliver up, or cause to be delivered up, those vehicles by 1 August. He was also required to file and serve an affidavit identifying, for any vehicles which were not delivered up, where they were and what he knew of them.
No vehicles were delivered up by the date specified in the order and, on 8 August 2018 Mr Price swore an affidavit in purported compliance with the Court's order. I will come back to that affidavit.
The evidence before me at the contempt hearing was that each of the vehicles which I have mentioned was re-registered in Queensland after the proceedings which resulted in the orders had been commenced. Vehicles 15 and 22 were re-registered in June 2018. This was before the orders were made. The others vehicles, numbers 8, 10, 16 and 33, were re-registered in August, after the orders were made and after the time for delivery up of the vehicles had expired.
By the time the contempt hearing took place, five of the six vehicles had been reclaimed or had otherwise come into the possession of the plaintiff, Reliance. The sixth, it appears, was delivered up to the liquidator of a company called Sydney Bulk Haulage Pty Limited. As I explained in my contempt judgment, the evidence suggests that that company was the legal owner of the vehicle. No point had been taken about the propriety of the order, but Reliance does not now complain about the fact that vehicle 33 has not been delivered up to it. I will treat the delivery up to the liquidator as having been, for practical purposes, a belated compliance with the order.
Mr Price swore a further affidavit for the purposes of the contempt proceedings and it was this affidavit rather than the affidavit of 8 August which was read in that hearing. Mr Price also gave evidence orally and was cross-examined.
The vehicles were re-registered in Queensland under the name of a company called Ava Haulage Pty Limited, the sole director of which was Susan Olivia Ingham. Ms Ingham formerly worked in an administrative capacity in the trucking business controlled by Mr Price. The registrations appear to have been effected in Queensland by, or with the assistance of, one Troy Holzheimer, who is a friend or associate of Mr Price. The registration papers included a contact number which, evidence before me established, was the number of a mobile telephone belonging to Mr Price. Nevertheless, Mr Price denied that he had anything to do with the re-registration in Queensland and asserted that the vehicles in question were all outside of his control at all relevant times up to and after 1 August. I disbelieved this evidence.
The contempt hearing concerned other vehicles apart from the six that I have mentioned. Although I disbelieved Mr Price's evidence generally, I considered that there was insufficient evidence before the Court to establish that at the relevant time, Mr Price still had control of the other vehicles. But I was satisfied, because of the evidence which showed his involvement in the re-registration of the six vehicles in question, that he did have control over those vehicles and this was the basis of the contempt finding I made against him.
Further evidence was presented on Mr Price's behalf for the purposes of the present hearing. It was established by reference to records from the New South Wales Police Force, that Mr Price has no criminal record in this State. There were also tendered two references in Mr Price's favour from friends or associates of his in the trucking industry.
The references recounted the referees' favourable impressions of Mr Price. Among other things, they said he was "a great natured bloke" and that he was "the first to shout a round of beers and never let you pay". Both referees referred to the Court's judgment, although it is not clear from the references that the referees had read the judgment or, if they had, that they had understood the significance of a finding of contempt. They stated, in substance, that they considered that Mr Price retained his good character despite the findings which I made. Neither reference confronted the fact that I disbelieved Mr Price on his oath, as well as concluding that he had wilfully breached Court orders of which he was aware.
There was also tendered a statement from Mr Price's general practitioner, Dr Carlos Robalino. Dr Robalino annexed previous medical certificates that he had provided for Mr Price. He said that Mr Price was suffering from atrial fibrillation, severe hypertension and gastrointestinal bleeding, morbid obesity, a severed left shoulder limiting the use of the shoulder; and "Acute Stress Disorder".
I will return to Mr Price's mental condition in a moment. It was not in dispute that Mr Price is suffering from other conditions but Dr Robalino's evidence did not provide any detail about the practical effect which these conditions caused Mr Price. In particular, Dr Robalino did not address the question whether any of those conditions would in some way have explained Mr Price's contempt or provided a reason why imprisonment (should the Court consider that appropriate) could cause particular difficulties for Mr Price.
There was also tendered a psychological report from Ms Rhonda Miller who practises as a psychologist at Campbelltown. Ms Miller recounted that she conducted an assessment of Mr Price on 29 January and expressed some opinions as a consequence of that assessment. Counsel for Reliance objected to the report on the ground that it had not been demonstrated that Ms Miller's opinions were wholly or substantially based on expertise. In particular, this was said to be because of a lack of reasoning. An objection of this type under the Evidence Act 1995 (NSW), s 79, raises a question of admissibility not merely one of weight. But even if the evidence is admitted it may have little or no weight if no adequate reasoning to link the opinions expressed back to some demonstrated expertise is shown.
Ordinarily, if an objection of this sort is taken the Court should rule on it immediately. This is not so much for the benefit of the party objecting as for the party putting the evidence forward. That party needs to know whether the report will be received, so if it is not received that party may consider whether to seek to lead further evidence in proper form. But Ms Miller did not attend the Court and counsel for Mr Price was content for me to receive the evidence provisionally and determine its admissibility (and if admissible, its weight) following the final submissions. That is the course that I will take.
Evidence was also led in affidavit form from Craig Nixon. Mr Nixon is apparently a friend of Mr Price's. The purpose of the evidence was to support a submission by counsel that the Court, rather than imprisoning Mr Price, should fine him. Mr Price is a bankrupt but in his affidavit, Mr Nixon deposed to a preparedness to lend Mr Price the sum of $20,000 over a six month period. Mr Price was not cross-examined and his evidence was not challenged.
Evidence was also led from Mr Price's solicitor, Martha Fernando. Ms Fernando gave evidence of steps taken since April to try to identify organisations who would be prepared to accept Mr Price as a temporary community services worker should the Court make an order in the nature of a community services order. Most of the potential providers were unable to assist but Ms Fernando annexed letters from two organisations which stated that they would be able to place Mr Price in community services work.
One of those organisations is known as Father Chris Riley's Youth Off The Streets. This organisation's objective is to help young people who are homeless, drug dependent or recovering from abuse. Its letter stated that a place could be found for Mr Price to work at an institution run by the organisation called Eden College. This would be for two hours a week on Tuesdays.
The other organisation was Young Adults Disabled Association Incorporated (YADA). This charity provides support for disabled adults. Its letter indicated that there would be 30 hours per week available between Mondays to Fridays between 8.00 am and 3.00 pm.
Both letters stated in the event that Mr Price did not regularly attend he would be requested to attend in order to fulfil his obligations. Mr Price offered an undertaking to the Court to undertake 50 hours of voluntary community service at Eden College and that he would provide a certificate to the Registrar of the Court from the Manager of Eden College certifying his satisfactory performance of 50 hours of community service. The undertaking did not refer to the possibility of working at YADA. Nor was there any evidence that if Mr Price did not attend on the dates and for the hours specified, the charity itself would or could be able to do anything to compel his attendance other than withhold the certificate.
A further affidavit was read at the hearing from Mr Price. This affidavit was sworn on 18 February. Mr Price was also cross-examined at some length by counsel for Reliance.
In his February affidavit Mr Price acknowledged that the registration of the six vehicles in question in Queensland had been at his direction. He said he had the vehicles re-registered because he intended to use them to generate income for himself and to avoid delivering them to the plaintiff. He said that after he registered the vehicles he had a "change of heart" and decided to allow the plaintiff to take possession of them. He said he regretted breaching the Court order and was sorry that he had.
He also gave some evidence about his personal circumstances. He is currently living in south western Sydney at a property rented by his former wife for which he pays $100 a week. He is working as an agent in some capacity in the transport business and says that in a typical week he earns around $800. He confirmed that he is bankrupt and that he expects to be discharged in June 2019. He has two children (who were co-defendants in the proceedings but I did not find committed contempt) and four grandchildren. He said he is in touch with his children and grandchildren and, where possible, visits them regularly. (Mr Price's son and grandson live in Melbourne).
In examination in chief Mr Price was asked about his assessment by Ms Miller. He said the assessment took three hours. He was asked in general terms whether what Ms Miller had reported in her report as his history and symptoms were correct and confirmed that they were.
So far as his mental state was concerned he stated in general terms that when he saw Ms Miller he was experiencing some difficulties. He did not address what his mental state had been at the time that he committed his contempt and he did not descend into any detail about the nature of his mental or physical problems, or any practical impact they were having on him at present.
In cross-examination Mr Price was pressed about the deliberateness of his conduct. He agreed that the vehicles in question or some of them had originally been taken by him or his associates from the depot at Minto to forestall their repossession of Reliance on or about 5 March 2019. He agreed that the Ava Haulage company was incorporated by him on the next day on 6 March in contemplation of using the company to keep the vehicles away from Reliance.
Counsel for Reliance pressed Mr Price on his control over the vehicles at the time they were re-registered in Queensland and the orders were made. In particular, Mr Price was taken to statements he had made in the 8 August affidavit to the effect that he had no control over nor knowledge of what had happened to the vehicles in question. It was put to Mr Price that this was false. Counsel suggested to Mr Price that, in fact, Mr Price had remained in possession or had control over the vehicles at all times and that he sought to conceal that that was so.
In response, Mr Price initially denied that he had possession or control of the vehicles. Mr Price said that the vehicles were held at parking lots in south western Sydney. I found this evidence from Mr Price particularly unimpressive. It was clear, and Mr Price acknowledged, that the vehicles were held to his order and that he was in a position at any time to have them delivered up to Reliance should he have wished to do so. He went on to suggest that any member of the public could have entered and taken the trucks away as if to suggest that the trucks were not effectively under his control. This evidence was absurd and Mr Price was eventually forced to retreat from it.
It was clear, and Mr Price eventually acknowledged, that throughout he saw the vehicles as belonging to him, notwithstanding the orders which the Court had made; and that right up to, and after, 1 August, 2018, he was determined not to surrender them to Reliance.
As I recorded in my contempt judgment, I considered that Mr Price's evidence before me at the contempt hearing was generally unreliable. Mr Price has now confirmed that I was right to disbelieve the evidence he gave at that hearing on oath. In effect, he now admits that he has lied to the Court. Even today his evidence has been marked by falsity and prevarication. When the truth has finally emerged, it has only been because Mr Price has had no alternative but to tell it.
His evidence makes it clear that although he was not charged specifically with this, he committed a further contempt of the Court by falsely pretending, in his affidavit of 8 August, that he did not control the vehicles in question and did not know where they were.
These conclusions do not merely affect Mr Price's credit on the specific issues before the Court concerning the six vehicles, I treat all of the evidence given by Mr Price, on any issue, which is not contrary to his interest, with considerable scepticism, whether it has been contradicted by anyone else or not.
Part 55 Rule 13 of the Supreme Court Rules 1970 (NSW) relevantly provides:
13 Punishment
(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.
cf HCR, O 56, r 9.
…
(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
In Registrar of Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 it was said that this power does not exhaust the Court's powers to take action against a contemnor. In that case the Court of Appeal made orders requiring the contemnor to undertake voluntary work in a hospital.
The view previously taken was that, in taking action against a person who disobeyed an order of the court, the Court was required to follow the Crimes (Sentencing Procedure) Act 1999 (NSW). But in the recent decision of Dowling v Prothonotary of the Supreme Court of the New South Wales [2018] NSWCA 340, the Court of Appeal made it clear that that is not so. In acting under Part 55, Rule 13, the court is not exercising a statutory power, or a power to punish for a common law offence. The Court's power is directed towards achieving compliance with the court's order or, if that is not possible, to vindicating the authority of the court. An important aspect of this is to discourage the contemnor from committing further contempts. But it is equally, if not more, important that the action that the Court takes in response to the contempt should set an example which will uphold the court's authority and deter others from disobedience.
Although I have not expressed this in the language of cases under the Sentencing Procedure Act, which speak of denunciation, specific deterrence and general deterrence, the concepts are analogous.
I also accept that subjective features, such as the circumstances in which the contempt was committed and hardship on the contemnor, are relevant to the type of action that the Court would take, in much the same way as subjective factors are taken into account under the Sentencing Procedure Act.
The evidence shows that the contempts in question show a wilful failure by Mr Price to comply with the orders of the Court when he was fully aware of those orders and fully able to comply with them, should he have chosen to do so.
This was not a momentary lapse, or a decision taken in haste. Mr Price had plenty of time to reflect on what he would do in answer to the orders. Even after the time for compliance had expired, he had plenty of further time to decide whether to comply, even if belatedly. He quite deliberately decided not to for a period of several weeks.
Counsel for Mr Price submitted that although deplorable, this was not an especially serious instance of contempt. I cannot agree.
The gravamen of contempt in a case such as this, is that the contemnor has wilfully disobeyed the authority of the Court. That is exactly what Mr Price did. He had no excuse. In my view it is a serious contempt of its type.
Counsel observed that the vehicles in question were eventually returned. Reliance has got five of its vehicles back and, as I have already explained, it cannot complain about the fact that it has not got the sixth vehicle, as that has gone to the liquidator of Sydney Bulk Haulage.
Counsel emphasised Mr Price's evidence about his "change of heart," but I think that terminology is quite wrong. Mr Price's sentiments did not change. All that changed is that Mr Price realised, belatedly, that further resistance to the Court's order would be futile and would only get him into further trouble. I see no sign whatever that Mr Price recognises the seriousness of his contempt or the wrongfulness of what he did, or that he is genuinely sorry for that.
Vindication of the Court's authority is no less important in a commercial list case, such as this one, than in other proceedings in this Court. The flow of commerce depends upon the fact that in the overwhelming majority of transactions, business people respect each other's legal rights, including rights of ownership of property. Mr Price, of all people, should understand this. Mr Price was not just a truck driver. He was a businessman on a significant scale. During the decades when he operated his trucking business, Mr Price benefitted from the protection which the law provided for his commercial operations. He must accept that those commercial operations depended ultimately on the existence of a system of justice to determine disputes, and, in doing so, to decide disputed questions of ownership and legal right. As I have said, that system can only function if those within the commercial community accept the decisions of the courts, even when they go against them, and adhere to those decisions, whether they like them or not.
Counsel for Mr Price relied on Ms Miller's report to submit that there were subjective mental health factors which the Court should take into account in Mr Price's favour in deciding what action to take in response to his contempt. It is therefore necessary to consider the admissibility and weight of Ms Miller's report. In her summary of conclusions Ms Miller stated:
12.1. In my opinion Mr. Price, at the time of the offence, was suffering from a mental illness and treatment is available to him.
12.2. In my opinion Mr. Price is not a mentally ill person.
12.3. In my opinion Mr. Price is currently experiencing the same mental illness, which he was experiencing at the time of his offences.
Ms Miller continued:
12.5. In my opinion Mr. Price would not benefit from being incarceration.
12.6. In my opinion weekend detention and community service would be more beneficial to Mr. Price given his currently mental illness and the impact of the mental illness on his currently daily functioning.
The first step in determining the admissibility of an opinion for the purpose of s 79 is to identify exactly what is the opinion being expressed. It is only by reference to a concrete opined fact that it is possible to determine whether the opinion is wholly or substantially based on expertise (see for example Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21) at 602 [32], 603-604 [35].
An initial problem with Ms Miller's opinion is the apparent inconsistency between paragraphs 12.1, 12.2 and 12.3 which I have quoted above. When I asked counsel what the fact, or facts, opined by Ms Miller were, I was told that two opinions were being expressed. The first was that at the time of the "offence" the contemnor, Mr Price, had been suffering from mental illness. The second was that he was currently experiencing mental illness.
An immediate difficulty with the first opinion is that Ms Miller did not see Mr Price until more than four months after the contempts had been committed, and, indeed, after I had already determined that he was guilty of contempt. In theory, it might have been possible for a properly qualified expert to offer a retrospective opinion as to Mr Price's mental state at the time, but in order to be properly based on expertise, any such opinion would need to be based on reliable and specific information about Mr Price's state of mind at the time. There is nothing in the rest of the report to suggest Ms Miller considered this issue at all, let alone that she investigated it in sufficiently rigorous detail to allow a proper expert opinion to be expressed about it.
As far as the second opinion is concerned, there is an immediate problem in the apparent contradiction between paragraphs 12.2 and 12.3. Counsel for Mr Price suggested that there was no contradiction. In counsel's submission, paragraph 12.2 related to the definition of a "mentally ill person" for the purpose of the Mental Health Act 2007 (NSW), s 14 and this was not inconsistent with an opinion being expressed in clause 12.3 that Mr Price had a mental illness.
I find such a distinction altogether too fine-spun. To my mind, it underlines the major problem with this part of the report. Ms Miller appears to have based her conclusion on the criteria for various different mental illnesses, which appear in the Diagnostic And Statistical Manual Of Mental Disorders, Fifth Edition, which is used in United States courts.
Thus, for instance, Ms Miller set out the criteria for what was described as, "Major Depressive Disorder, single episode". The criteria include five or more of nine named "symptoms". An example of one of those symptoms is the first: "Depressed mood most of the day, nearly every day, as indicated by either subjective report, (for example, feel sad, empty, hopeless), or observation made by others (for example, appears tearful)".
The difficulty lies in distinguishing a mental illness of medical significance from ordinary or usual changes of mood which everyone, to a greater or lesser extent, experiences. The language used in the Manual is broad, a factor reinforced by the fact that it may be satisfied by "subjective report". Clearly, the criterion is capable of meaning different things to different people. It is not at all clear to me how the Court is to decide whether a person, even a person who has qualifications in psychology, is truly an expert in deciding whether a particular patient's mood satisfies the criterion or not. Certainly, there is nothing in Ms Miller's report, or in the Curriculum Vitae which accompanied it to demonstrate that Ms Miller has a particular expertise in determining whether the criteria are satisfied. I repeat that the criterion which I have quoted, and many of the other criteria relating to "Major Depressive Disorder", are based on "subjective report" and it is hard to see how anyone, qualified or not, could have expertise in determining whether a patient who makes a particular complaint answers the description in the definition.
For these reasons, I think the admissibility of the second opinion in Ms Miller's report is questionable, but I do not need to make a final decision on this. Even if the opinion is admissible, for it to be of any use to me for present purposes, it would need to be accompanied by some sort of explanation about how Mr Price's condition differs from ordinary human emotional reactions, or interferes with Mr Price's abilities of daily living. The report does not do this. All it does is to rehearse the diagnostic criteria and then stick a "mental illness" label on Mr Price. Whatever utility that may have in other circumstances, I think it has no utility for me in this case.
In Paccar Financial Pty Limited v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622, Rothman J had to consider what action to take in a case of contempt consisting of a failure to deliver up two trucks with attached trailers in accordance with a prior order of the Court. The contemnor was a husband and wife who operated what, in effect, appears to have been a "one man" trucking business. The orders were made in 2013.
In May 2015, the Court found that the contemnors had committed contempt. In September 2016, Rothman J ordered that Mr Menzies be imprisoned for six months and Mrs Menzies be imprisoned for two months, beginning on 6 September. Mr and Mrs Menzies appealed to the Court of Appeal and, in the meantime, applied to have the order made by Rothman J discharged, on the basis that they intended to deliver up the trucks and trailers. This occurred on 29 September and Meagher JA then ordered that the appellants be released from prison. The result is that each of them was imprisoned for a little over three weeks.
Rothman J said (at [61]-[64]):
[61] In exercising its jurisdiction, a superior court of record, such as the Supreme Court of New South Wales, issues an order that is binding upon the parties before it. Even if the order or judgment be incorrect, the fundamental nature of democracy requires that the orders of the court be obeyed. The alternative is chaos. It matters not that "fairness" may be on the first and second defendants' side. It matters that an order of the Court has issued and the first and second defendants have deliberately and contumeliously defied that order. The remedy for error is appeal; not the obstinate defiance of the Court.
[62] I have considered the range of penalties available to the Court to sentence the first and second defendant. Wilful disobedience of a court order justifies a custodial sentence: National Australia Bank Ltd v Juric (No 2) [2001] VSC 398.
[63] The first defendant claims that his debts amount to $1 million. This claim is supported by the second defendant. I do not find that the imposition of a fine as a penalty is appropriate in the circumstances.
[64] Further, a non-custodial sentence will, in the circumstances of these offences, be an insufficient punishment and deterrent to such behaviour. A custodial sentence that was not full-time would also be an insufficient punishment and deterrent.
The evidence before Rothman J showed that the decision not to deliver up the trucks and trailers was that of the first defendant, Mr Menzies; but, in effect, Mrs Menzies, who was one of the parties ordered to deliver the trucks, had gone along with it.
In discharging Mrs Menzies and Mr Menzies, Meagher JA said (Menzies v Paccar Financial Pty Ltd (2016) 93 NSWLR 88; [2016] NSWCA 280 at 93-94 [23]-[25]):
[23] It is to be recalled that the contempt charged against Mrs Menzies was of failing to deliver up the trucks and trailers to Paccar. To establish a breach of such an obligation it would ordinarily be necessary to prove that it was within the power or control of the person to produce that outcome. In her evidence to this court, Mrs Menzies maintained that she did not help her husband to hide the trucks or at any time know where they were. That was consistent with Mr Menzies' evidence, both before this court and before the primary judge. Nevertheless, she apologised to the court for anything that she had done which constituted a breach of the order for delivery up. It was obvious, watching Mrs Menzies give her evidence, albeit by video link, that her three weeks spent in jail was a particularly difficult and harrowing experience. I am satisfied that there is no good reason to subject her to any further imprisonment, either to vindicate the authority of the court or by way of further punishment. It is apparent that she understands that the court's orders should have been complied with and regrets that they were not. For these reasons I made the orders discharging and releasing Mrs Menzies from imprisonment.
[24] Mr Menzies' position is quite different from that of his wife. He arranged for the trucks to be hidden and refused to disclose their whereabouts for a period of three years. As the primary judge observed his contempt was wilful, and for that reason a serious one. There were however mitigating circumstances. They included that earlier in his lifetime, Mr Menzies had suffered three traumatic brain injuries and been diagnosed with development disorder and acquired brain injury. Those injuries had resulted in an "inflexibility of thinking, abnormal obstinacy and lack of self-awareness". The primary judge found that these conditions explained his having a "lack of understanding of the seriousness of his contempt" ([2015] NSWSC 1622 at [31]-[32]).
[25] Mr Menzies has now arranged for the trucks to be delivered up to Paccar. He has also apologised to the Court for his failure to comply with the order, on more than one occasion describing his conduct in not doing so as "stupid". Unprompted he also acknowledged that he should have accepted the judgment of the Court and arranged for the delivery up of the vehicles and trailers in September 2013, under the interlocutory regime proposed by Leeming JA. In addition it was obvious from comments he made during the hearings on 26 and 29 September 2016 that in the time he has been imprisoned he has suffered not only by reason of that fact but also because his wife has been in jail, essentially because of his conduct.
Counsel for Reliance submitted that the decision of Rothman J provided some guidance for me in the present case. Counsel for Mr Price disputed this, but I think there are some useful parallels and points of comparison. In evaluating these, it is Mr Menzies whose position should be compared with that of Mr Price. It is clear from what Meagher JA said that Mrs Menzies' contempt was much less serious than that of Mr Menzies, which, like Mr Price's contempt, was deliberate and, indeed, defiant.
Counsel for Mr Price was correct to point out that Mr Menzies withheld the trucks for a period of three years, whereas, in the present case, the vehicles were returned late after six weeks or so. That is correct so far as it goes, but I think it is significant that Mr Menzies, however belatedly, submitted to the orders of the Court and expressed what Meagher JA obviously considered to be genuine remorse. Furthermore, there was evidence in Mr Menzies' case, not only of an actual physical brain injury, but evidence that the injury had a particular effect on Mr Menzies' ability to think properly. As I pointed out, there is no such evidence in the present case, despite the appeal to "mental illness".
A critical feature of this case not present in the case of the Menzies is that Mr Price not only committed the contempt wilfully, but he repeatedly lied about it. As I have said, I do not accept that Mr Price exhibits any sign of real remorse in the sense in which that term is used in this area of the law. He may be sorry about the way things have turned out, but he shows no appreciation of the wrongfulness of his conduct and I have no confidence that he has learned any lesson from this disgraceful episode.
Counsel submitted that the Court should go no further than imposing a condition on Mr Price's release that he be of good behaviour, in the sense that he commit no further contempt for a period of twelve months. I am not quite sure how this would work, but, in my view, such a response would fall far short of properly recognising the seriousness of what has happened and the need to vindicate the Court's authority.
Counsel's alternative submission was that Mr Price should be fined the sum of $10,000 (to be provided by Mr Nixon), but the payment of the fine should be suspended on condition that Mr Price undertake to perform 50 hours of community service at Eden College. At two hours a week, which is the period of time referred to in the letter from the charity in question, that would take 25 weeks. Again, I think this falls far short of what is required in the circumstances. Were I to require nothing more than this, even assuming that Mr Price actually abided by his undertaking, it would be a part-time punishment, which I think most people would regard as having only a trifling effect on Mr Price. It would be out of all proportion to the seriousness of what has happened.
Like Rothman J in Paccar, I think that nothing short of imprisonment will do. I order that the ninth defendant, Harold James Price, be imprisoned for a fixed period of twelve weeks commencing on 2 May 2019 and ending on 25 July 2019.
[2]
Amendments
09 May 2019 - amend phrasing of words at [64]
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Decision last updated: 09 May 2019