Textile Clothing and Footwear Union of Australia v Morrison Country Clothing

REASONS FOR JUDGMENT 1 On 5 September 2008 I found that the respondent, Morrison Country Clothing Australia Pty Ltd ("Morrison Clothing"), and Mr Brian Morrison had committed contempt of Court by failing to comply with paragraph 1 of the orders I made on 28 September 2007 ("the Order"): see Textile Clothing and Footwear Union of Australia v Morrison Country Clothing Australia Pty Ltd [2008] FCA 604. These reasons should be read in conjunction with those in Morrison. 2 Mr Morrison is the sole director, company secretary and sole shareholder of Morrison Clothing. The Order required Mr Morrison, both on his own behalf and on behalf of Morrison Clothing, to give discovery of the documents requested by the applicant (in its Request for Categories of Documents to be Discovered dated 9 August 2007) by serving a list of documents required to be disclosed and an affidavit verifying the list of documents on or before 19 October 2007. I concluded that the brief affidavit filed by Mr Morrison did not comply with the Order and that Mr Morrison's conduct was not merely casual, accidental or unintentional but constituted wilful disobedience of the Court's order. 3 The applicant seeks an order that Mr Morrison be fined $50,000.00 for his contempt. No penalty is sought against Morrison Clothing, which is now in liquidation. 4 It is now well established that the Court has power to impose a fine for contempt of Court: see s 31 of the Federal Court of Australia Act 1976 (Cth) and Pattison (Trustee), in the matter of Bell (Bankrupt) v Bell [2007] FCA 137; BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336; Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd (2007) ATPR 42-156; Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129. 5 In Australian Competition and Consumer Commission v Hughes (2001) ATPR 41-807 Tamberlin J described the rationale behind the power to punish for contempt as follows: "Ultimately, in the case of mandatory or prohibitory orders made by it, the sanction which the Court has in order to enforce its decisions is the power to punish for contempt. This is the way in which the Court preserves respect for its role and the rule of law. Without the enforcement of court orders the whole process of adjudication becomes a hollow exercise. If a losing party can defy the orders of the Court then such disobedience renders futile, in the perception of the community, the remedy secured by the successful party. Orders are not made simply to suggest or advise persons that they ought to keep to the law as proclaimed but to ensure that the law is carried out as determined by the decision pursuant to which the order is made. Defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts." 6 Having regard to these principles I turn to the determination of the appropriate penalty.