Van Rooy Machinery Pty Ltd v Michieli [2025] VSC 757

2 For the reasons that follow, I have determined not to impose a penalty for the contempts if within seven days of the date of these reasons, Mr Michieli pays Van Rooy the sum of $4,653.00.

3 Mr Michieli was employed by Van Rooy from 7 November 2012 until 19 March 2025. Van Rooy provides equipment and after sales service to the food industry. At the conclusion of Mr Michieli's employment he was Van Rooy's technical manager. His duties included complex and specialised equipment installation, resolving technical issues with machinery, repair and maintenance of equipment and meeting with dissatisfied customers.

4 On 15 April 2025 Van Rooy instituted these proceedings. In its Statement of Claim Van Rooy alleged that Mr Michieli had breached his employment contract by, amongst other things:

(a) sending an email to some of its customers on 6 March 2025 soliciting work for a business which he intended to establish as a technical and commercial consultant in the bakery sector;

(b) by sending another email to some of Van Rooy's suppliers notifying them of his intention to establish as a technical and commercial consultant in the bakery sector; and

(c) using Van Rooy's information technology facilities to prepare a business plan.

5 On 17 April 2025 O'Meara J made an order that until trial, Mr Michieli be restrained from soliciting, canvassing, approaching (or attempting to solicit, canvass or approach) or accepting an approach from, a client of Van Rooy with which Mr Michieli had dealt in the period of 24 months prior to the cessation of his employment with Van Rooy on 19 March 2025 ('the first non-solicitation order').

6 The parties attended a mediation and settled the proceeding. Pursuant to the terms of the settlement, on 17 June 2025 I made orders that until 19 September 2025 Mr Michieli was not to solicit, canvass, approach (or attempt to solicit, canvass, or approach) or accept an approach from:

(a) a client of the plaintiff with whom Mr Michieli had dealt within the period of 24 months prior to the cessation of his employment with Van Rooy on 19 March 2025; and

(b) some 28 specifically listed companies, who were suppliers to Van Rooy.

('the second non-solicitation order').

7 Van Rooy, by a summons dated 15 September 2025, sought findings of contempt against Mr Michieli on six charges, each alleging a breach of the first and/or second non-solicitation order (collectively 'the orders').

8 The summons came before me for hearing on 25 September 2025. On that day, at Mr Michieli's request, I dealt with the preliminary question of whether the orders were clear, unambiguous and capable of compliance. Contrary to his submissions, I held that they were. Upon receipt of that ruling Mr Michieli immediately pleaded guilty to four of the charges and indicated an intention to plead not guilty to two of the charges. Van Rooy then withdrew the two charges in respect of which Mr Michieli had pleaded not guilty. The matter was then adjourned for a penalty hearing. Various matters delayed the penalty hearing until 25 November 2025.

9 At the penalty hearing I heard evidence from David Paul Van Rooy on behalf of the plaintiff and from Mr Michieli on his own behalf.

10 Mr Van Rooy's evidence in chief consisted of the adoption of two affidavits he had sworn in the proceeding. His cross-examination went to one issue, being the question of the timing of the initiation of the contempt proceedings. The contempt proceedings were initiated a few days before the expiration of the restraint arising from the second non-solicitation order. Essentially, it was put to Mr Van Rooy that this indicated that the contempt proceedings were not directed to ensuring compliance with the orders, but for the purposes of punishment. Mr Van Rooy's evidence was that he was not a lawyer but that he would not make that assumption, his opinion was that there was a contempt and that is why Van Rooy took the action it did. I accept Mr Van Rooy was being truthful in his evidence.

11 Mr Michieli adopted two affidavits he had affirmed in the proceeding and gave some short further evidence in chief which I refer to below. Mr Michieli was extensively cross-examined by counsel for Van Rooy. I deal with Mr Michieli's evidence below, but I record at the outset that, having seen Mr Michieli's evidence, I am satisfied he was a truthful witness and I accept his evidence.

12 Mr Michieli has pleaded guilty to four instances of contempt involving contact with the following clients ('the Clients') in the period between 17 June 2025 and 7 August 2025:

(a) New Farm Confectionery;

(b) Black Star Pastry;

(c) Hahndorf Bakery; and

(d) La Madre.

13 On 2 July 2025 Van Rooy became aware of Mr Michieli's contact with New Farm Confectionery. Two weeks later it became aware of Mr Michieli's approach to Black Star Pastry.

14 On 1 August 2025 Van Rooy's lawyers wrote to Mr Michieli's lawyers alleging breaches of the orders in relation to New Farm Confectionery and Black Star Pastry. The letter requested an explanation for Mr Michieli's conduct and suggested proceedings would be commenced in the coming days.

15 On the same day Mr Michieli's lawyers emailed back. In that email they said that Mr Michieli admitted he had been in contact with New Farm Confectionery and Black Star Pastry but had not realised those clients fell within order 1(a) of the second non-solicitation order. They indicated that having been made aware that those clients did fall within the orders Mr Michieli would not have any further contact until 19 September 2025. The email concludes with the following:

Our client has attempted to comply with the Court Orders, however this has proven difficult as he is unable to check when he last performed work or had correspondence with these clients as he no longer has access to his Van Rooy email account. Further, your client's unwillingness to supply my client with a clear list of prohibited clients has meant that in order for my client to assess whether he has dealt with a client between the period of 19 March 2023 and 19 March 2025, he has had to rely on the limited messages he has on his phone from Van Rooy clients and his memory. This has proven to be a difficult and imprecise exercise for my client.

To avoid any future inadvertent breaches, could your client please supply to us a list of prohibited clients?

16 On 6 August 2025 Van Rooy's lawyers wrote back. In the letter, amongst other things, they rejected the idea of providing a list of customers and said that Mr Michieli should supply them with a list of customers he had contacted.

17 The next day Mr Michieli's lawyers emailed back. In that email Mr Michieli provided a list of customers he had contacted and when, according to his records, he had last contacted them. That list is as follows:

1. Philippa's Bakery - Mr Michieli's last text message exchange with the owner was July 2022;
2. Black Star Pastry - Mr Michieli asked the chef to confirm when their last contact was. The chef checked his records and confirmed their last communication was in 2022;
3. Grumpy Baker - Mr Michieli's last text message exchange with the owner was January 2022;
4. New Farm Confectionery - Mr Michieli's last text message exchange with the former Production Manager was February 2023;
5. La Madre - Mr Michieli's last text message exchange with the owner was January 2023;
6. Loco Love - Mr Michieli's last text message exchange with the owner was February 2022;
7. Zeally Bay - Mr Michieli's last text message exchange with the owner was April 2016;
8. Hahndorf Bakery - Mr Michieli's last text message exchange with the owner was June 2022;
9. Pasta al Dente - Mr Michieli's last text message exchange with the owner was July 2022;
10. Lara Pasta Fresca - Mr Michieli's last text message exchange with the owner was February 2022;
11. B&P - Mr Michieli's last text message exchange with the owner was July 2020;
12. Gelateria Martino - Mr Michieli's last text message exchange with the owner was October 2019; and

13. Panini Brothers - Mr Michieli's last text message exchange with the owner was February 2019.

18 From that list Van Rooy identified three customers additional to New Farm Confectionery and Black Star Pastry where it regarded Mr Michieli as having breached the orders: La Madre, Loco Love and Hahndorf Market. Each of those entities were the subject of the contempt charges Van Rooy brought against Mr Michieli. The Loco Love charge was one of the two withdrawn at the hearing on 25 September 2025.

19 On 15 September 2025 Van Rooy issued a summons charging Mr Michieli with six instances of contempt four days before the expiry of the restraint period under the second non-solicitation order.

20 Disobedience of a court order is usually a civil contempt. The elements which must be proved to establish the contempt are as follows:

(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 court;

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

(e) the defendant breached the terms of the order.[1]

21 It is necessary to establish that the breach of the order was wilful. In this context wilful breach means something more than an act which is casual, accidental or unintentional but does not require a direct intention to disobey the order, it is enough that the acts which constitute the breach were themselves intentional.[2]

22 However, disobedience of a court order may be criminal contempt where:

(a) the disobedience is contumacious; or

(b) the purpose of the proceedings is punitive in the sense that it seeks to punish a past breach, rather than a remedial or coercive purpose of obtaining compliance with the order.[3]

23 A wilful breach of an order will be contumacious if:

(a) the contemnor knows the breach is prohibited and has no reasonable belief that it can be excused;

(b) the breach involves perverse obstinate resistance to authority; or

(c) there is a direct intention to disobey the order.[4]

24 Finally, I note that, in considering the circumstances of the offending, facts beyond those matters formally admitted in the plea which are adverse to Mr Michieli must be established beyond reasonable doubt.[5]

25 Here, Van Rooy contends that Mr Michieli's breaches were contumacious in that the evidence establishes that he had a direct intention to breach the orders. That is a matter adverse to Mr Michieli beyond those matters formally admitted in his plea and so must be established beyond reasonable doubt.

26 The following factors are relevant to a sentence for contempt:

(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; and

(h) whether the contemnor has exhibited general contrition and made a full and ample apology.[6]

27 There is no maximum penalty for contempt of court.[7]

28 In determining the appropriate penalty, I should have regard to relevant provisions of the Sentencing Act 1991 (Vic).[8]

29 I deal with the circumstances of each contempt below but it is worth making some preliminary observations regarding the nature of the contempts.

30 First, none of the companies who Mr Michieli contacted are in the list of specified companies in the second non-solicitation order (all of whom are suppliers to Van Rooy). Each fall within the general category of a client with whom Mr Michieli had dealt in the 24 months prior to the cessation of his employment with Van Rooy.

31 Secondly, on two occasions, once at the hearing before O'Meara J and later in the 1 August 2025 email, Mr Michieli sought to obtain from Van Rooy a list of clients whom he was prohibited from contacting, but for reasons which are entirely understandable Van Rooy refused to give such a list. Nonetheless, the evidence clearly establishes that Mr Michieli tried to ascertain precisely the clients of Van Rooy whom the orders prohibited him from contacting.

32 Thirdly, Mr Michieli gave evidence, which I accept, that because he did not have a list he developed what he describes as a self-policing mechanism in the following terms:

[I]n order to determine whether my last dealing with these customers was within the [24 months prior to the cessation of my employment], I relied on my memory of the last dealing, as well as any records that I have available to me, such as any previous text message interactions with the customer, and or photos on my phone which may indicate the last time I visited the particular work site.[9]

33 Fourthly, in each instance Mr Michieli says that at the time he made contact with each of the Clients he did not recall having had contact with that Client in the 24 months prior to the cessation of his employment with Van Rooy. If matters had been left with the only evidence being Van Rooy's evidence, I would have been somewhat sceptical of that explanation in relation to Black Star Pastry and La Madre, but would still have entertained a reasonable doubt in that regard. In other words, Van Rooy would not have discharged its burden of proving a contumacious disregard for the orders. As it happens I had the benefit of hearing Mr Michieli's evidence and, as I note below, I accept his evidence that he did not recall contact with Black Star Pastry and La Madre in the 24 months prior to his cessation of employment with Van Rooy when he contacted those Clients after the second non-solicitation order had been made.

34 Fifthly, the instances of contempt involving Hahndorf Market and La Madre only came to the notice of Van Rooy because of the list Mr Michieli instructed his lawyers to send Van Rooy's lawyers on 7 August 2025.

35 Sixthly, there is no suggestion of any breach of the orders by Mr Michieli after 1 August 2025 when the lawyers for Van Rooy wrote to his lawyers regarding the New Farm Confectionery and Black Star Pastry contempts.

36 Seventhly, the evidence establishes that Mr Michieli has not obtained any work from New Farm Confectionery, Hahndorf Market or La Madre since the cessation of his employment with Van Rooy. Mr Michieli has given evidence that between 17 April 2025 and 22 September 2025 (the latter date being the date he affirmed his affidavit) he invoiced Black Star Pastry for the amount of $4,653.00.

37 Mr Michieli's self-policing mechanism plainly was not successful and it would have been prudent for Mr Michieli to have exercised greater care when contacting clients who he knew had been clients of Van Rooy. Mr Michieli could have asked his lawyers to contact the lawyers for Van Rooy to ascertain whether a client he wished to contact fell within the ambit of the orders. His evidence was that the expense of constantly contacting his lawyers regarding potential clients would have been prohibitive. I do not accept this is so. There are only 13 clients on the list. All five on the list that were the subject of contempt charges were contacted between 13 June 2025 and 7 August 2025 and could have been the subject of a single request from Van Rooy, or at most a small number of requests.

38 Nonetheless, in nine out of 13 cases it appears Mr Michieli's system did work. In four cases it did not. Having heard Mr Michieli's evidence I am satisfied that the self-policing mechanism he describes was a genuine attempt to ensure he complied with the orders.

39 Mr Michieli accepts that on 23 June 2025 he made contact with a Ms Dawn Hargrave from New Farm Confectionery. At the time he made that contact he says he believed that the last contact he had had with New Farm Confectionery was in August 2022.

40 On 23 June 2025 Mr Michieli sent Ms Hargrave the following text:

Good morning Dawn. Not sure if you remember me but I'm Max and I worked at Vanrooy till March this year. I now opened my own business and if you need any help or advises please, save my number. Have a great day and hope to hear from you soon. Cheers.[10]

41 Ms Hargrave responded by asking Mr Michieli to send through his details which she offered to place on file. Mr Michieli responded:

Thank you Dawn, I still have 3 months of restrain on contacting customers that I dealt with in the last 2 Years but, I never met you in person therefore you are not part of those customers. Here my email address:

lm.consultgroup2025@gmail.com. I'm working on Selmi, Pomati and CW machines plus, as you can immagine, and other kind of equipment due to my knowledge with almost all the brands... plus I still have strong contacts in Europe if you need anything else.[11]

42 Van Rooy points to a series of emails in September 2024 relating to a quote for a machine at New Farm Confectionery. Those emails show:

(a) Mr Michieli, sometime on or shortly before 12 September 2024, had contact with Ms Hargrave where she had asked him for a quote on a particular machine.

(b) Mr Michieli handed off that request to a sales representative at the company and asked the sales representative to let him know when a quote had been sent so he could follow up with Ms Hargrave.

(c) The sales representative then sent a quote to Ms Hargrave. Ms Hargrave sent a response suggesting she had been sent a quote for the wrong kind of machine and the sales representative responded with a quote for the correct machine. Ms Hargrave then responded that she would like more details regarding capacities and size of the machines which had been quoted.

(d) After further interchanges the sales representative copies Mr Michieli and Mr James Stone, a Sales Manager, into the email on 17 September 2024 and Mr Stone replies with more detail regarding options later that same day.

43 Mr Michieli's evidence was that he did not remember having dealings with Ms Hargrave prior to leaving Van Rooy. He had relied on a text message with an earlier contact from New Farm Confectionery in February 2023 and that at the time he made contact with Ms Hargrave he had forgotten about the interactions the subject of the email chain in September 2024.

44 It was put to Mr Michieli that he must have remembered dealings with Ms Hargrave because his first text message included 'Not sure if you remember me, but I'm Max and I worked at Van Rooy until March this year'. Mr Michieli said this was a way to introduce himself to someone he had never met in person and who he did not recall emailing or speaking with over the phone.

45 Mr Michieli was asked why he had referred to never having met Ms Hargrave in person in the second text message. He said:

Because for me always, the way to know the customer was in person and not just by email, because I was the one most of the time sent on site to solve issues. And I'm always referring to the customer based on where they are and who they are. So if I'm looking for a specific customer, again, with my pictures, I'm checking the site of that customer and checking the date of those pictures. So I know if I was there in the last, for example, two years, this is the same. I never met in person because I never been there in Brisbane when she was there.[12]

46 It was put to Mr Michieli that he must frequently have had dealings with customers whom he had never met in person. Mr Michieli said not really.

47 Mr Michieli was cross-examined extensively on the September 2024 email chain and it was put to him that he remembered the dealings with Ms Hargrave, evidenced by that email chain, when he made contact in June 2025. Mr Michieli was firm and unwavering in his denial of that being the case.

48 Van Rooy submitted that I should find that Mr Michieli remembered he had had contact with New Farm Confectionery in the 24 months prior to the cessation of his employment with Van Rooy when he contacted them in June 2025. Having regard to the totality of the evidence and the burden of proof Van Rooy bears in that respect I do not accept that submission.

49 As I have indicated above, having observed Mr Michieli giving his evidence, I accept that he was truthful in his evidence. The September 2024 emails demonstrate that New Farm Confectionery was a customer with whom Mr Michieli had had dealings in the 24 months prior to the cessation of his employment with Van Rooy. However, it is plain that his direct contact seems to have been a single conversation with Ms Hargrave who he then referred to a sales representative. He was copied into the email chain in September 2024 between the sales representatives and Ms Hargrave but appears to have had no direct involvement in that email chain. In the circumstances, I accept that his dealings with New Farm Confectionery in September 2024 were of a limited nature and I accept his evidence that at the time he made contact with Ms Hargrave in June 2025 he had forgotten about those dealings.

50 I have noted above that when contacted regarding this breach on 1 August 2025 Mr Michieli immediately admitted the contact with New Farm Confectionery, stated that he did not think they were covered by the order and advised he would not contact New Farm Confectionery again prior to 19 September 2025.

51 In the circumstances, I find that the breach of the second non-solicitation order occasioned by Mr Michieli's contact with New Farm Confectionery was not done with a direct intention to breach the order, was immediately admitted in correspondence once drawn to Mr Michieli's attention, has not been repeated and has caused no loss of custom to Van Rooy.

52 In his evidence Mr Michieli describes the circumstances of his contact with Black Star Pastry in the following terms:

In July 2025, I received a call from Arnaud Vodounou, the head chef of Black Star Pastry. He asked if I could perform work for Black Star Pastry. I explained to him the terms of my restraint under the June Orders, and that I was unable to recall my last dealing with Black Star Pastry, because I did not have any records on my phone of our last dealings. I asked him to check his records to see if he could find when our last dealing was, and whether this was before the Restraint Period. Mr Vodounou called me back and said that our last dealing was almost three years ago in 2022, before Black Star Pastry moved into a new kitchen premises.[13]

53 In January 2025 Mr Michieli was contacted by Dominique Hill the accounts officer at Black Star Pastry seeking to arrange a meeting between Mr Michieli and the general manager of Black Star Pastry, 'Marcos'. Mr Michieli was on holiday overseas and appears to have followed up this email on return to Australia on 28 January 2025. On 4 February 2025 some eight emails are exchanged between Mr Michieli and Ms Hill regarding an onsite meeting in Sydney for Arnaud (presumably Mr Vodounou), Marcos and herself and a possible demonstration of new equipment in Melbourne. In one of those emails Ms Hill thanks Mr Michieli for their chat the previous week. Ms Hill ultimately says there will not be any attendance at the Melbourne demonstration but arrangements for the Sydney meeting are left to be finalised.

54 Then, on 27 February 2025, Ms Hill and Mr Michieli exchanged a further five emails fixing a time for a meeting at the Black Star Pastry premises, being 8:00am on 18 March 2025. In one of those emails Mr Michieli says that there is 'another matter I'd like to discuss with you and your production and operations manager'. It was put to Mr Michieli that this was a reference to his intention to set up his own business. Mr Michieli denied this was the case and said he assumed it was a reference to an issue with a particular piece of machinery which had for a long time been very noisy.

55 Three more emails are exchanged on 5 March 2025 confirming the arrangements for the Sydney meeting.

56 Counsel for Van Rooy put to Mr Michieli that he must have remembered his conversations and emails with Ms Hill when he was approached by Mr Vodounou in July. Mr Micheli was adamant he did not. He said Van Rooy had over a thousand clients, he received between 50 to 80 emails each day from customers, suppliers and technicians and had hundreds of conversations with people each week. His main contact at Black Star Pastry had been with Mr Vodounou and that he did not remember his contact with Ms Hill, but that when Mr Vodounou had contacted him he had specifically asked Mr Vodounou to check when they had last had contact and had been told 2022.

57 Initially, when I read the affidavit material in this matter, I was somewhat sceptical of Mr Michieli's explanation that he did not remember his contact with Ms Hill. The email traffic between them was relatively extensive and in recent proximity to his dismissal and relatively recent proximity to his July contact with Mr Vodounou. However, having heard Mr Michieli's evidence, I accept that when contacted by Mr Vodounou he did not recall the earlier contact with Ms Hill and that his focus was on his last contact with Mr Vodounou.

58 As with New Farm Confectionery, immediately the breach of the second non-solicitation order in respect of Black Star Pastry was raised with Mr Michieli, he admitted the contact, said that he did not think they were covered by the order and advised that he would not contact Black Star Pastry again prior to 19 September 2025.

59 In the circumstances, I accept the breach of the second non-solicitation order occasioned by Mr Michieli's contact with Black Star Pastry was not done with an intention to breach the order, was immediately admitted in correspondence once drawn to Mr Michieli's attention and has not been repeated.

60 This breach is however more serious than the breach in relation to New Farm Confectionery. It is clear that Mr Michieli has profited to some degree from his contact with Black Star Pastry. In his evidence he admits he invoiced them $4,653.00. A portion of that invoice relates to parts supplied at cost by Mr Michieli. In an affidavit affirmed on the day of the penalty hearing Mr Michieli offered to pay the sum of $4,653.00 to Van Rooy in order to remedy his breach of the second non-solicitation order in respect of Black Star Pastry.

61 I have referred above to the fact that the contact between Mr Michieli and Hahndorf Market only came to light because on 7 August 2025 his solicitors wrote to the solicitors for Van Rooy and provided a full list of clients he had contacted since 17 April 2025, together with the date Mr Michieli had understood he last had contact with that client.

62 Mr Michieli's evidence is that he contacted Hahndorf Market on 17 June 2025 and that by reference to a text message on his phone he had understood his last contact with Hahndorf Market was in June 2022.

63 Van Rooy relies on an email chain from 17 and 18 October 2024 as evidence of Mr Michieli's contact with Hahndorf Market in the 24 months prior to the cessation of his employment. That email chain commences on 17 October with a Mr Mariani, a service coordinator at Van Rooy, emailing 'Joel' at an entity described as BCP Sales and Service providing him with the address of Hahndorf Market regarding picking up a spare part from a TNT depot and delivering it to Hahndorf Market. Mr Michieli and Angelo Palmer from Hahndorf Market are copied into that email. A further email from Mr Mariani later that day provides BCP Sales and Service with tracking information for the part and advises that Van Rooy will keep BCP Sales and Service posted regarding the estimated time of arrival of the part on site. Mr Michieli and Mr Palma are copied into that email. At 10:45am the next day Mr Mariani advises BCP Sales and Service that the relevant part has been scanned into the depot and is ready to be collected. Mr Michieli and Mr Palma are copied into that email. Up until that point in the email chain I would not regard the evidence as establishing that Mr Michieli had had any contact with any person from Hahndorf Market.

64 The last email in the chain is an email from Mr Michieli to Mr Mariani and BCP Sales and Service at 10:58am on 18 October 2024 requesting that Mr Palma be updated 'with an ETA on site'. Mr Palma is copied into that email. That email does constitute a communication from Mr Michieli to someone from Hahndorf Market. It is a communication of the most transitory and perfunctory kind. I accept entirely that it is the sort of communication which would not be remembered eight months later.

65 It was put to Mr Michieli that he remembered the October 2024 contact with Hahndorf Market when he approached them in June 2025, he denied that was the case. I accept that evidence.

66 In the circumstances, I accept the breach of second non-solicitation order occasioned by Mr Michieli's contact with Hahndorf Market was not done with direct intent to breach the order, was only drawn to Van Rooy's attention because Mr Michieli volunteered in correspondence that he had contacted Hahndorf Market, has not been repeated and has caused no loss of custom to Van Rooy.

67 La Madre also falls into the category of a breach of the orders which only came to light because Mr Michieli volunteered that he had had contact with them in the 7 August 2025 list.

68 It is not entirely clear on the evidence when Mr Michieli contacted La Madre but his affidavit material treats this contact as a breach of the second non-solicitation order, so the contact must have been at some point between 17 June 2025 and 7 August 2025.

69 Consistent with the assertion in the 7 August email, Mr Michieli's evidence was that at the time he contacted La Madre he believed his last prior contact with them had been a text message exchange with Mr Tez Kemp in early January 2023.

70 In fact, Mr Michieli was involved in an extensive exchange of emails with Mr Kemp between 19 December 2024 and 24 December 2024 regarding the delivery of an urgent replacement part with some follow up emails on 30 December 2024. There are 35 emails back and forth altogether. Mr Michieli's evidence was that he did not remember these interactions when he made contact with La Madre after the second non-solicitation orders because it was not part of his normal responsibilities to chase down parts for clients but that he had done so on this occasion because the spare parts team was unavailable due to the Christmas break. Again, having read the affidavit materials, I was somewhat sceptical of Mr Michieli's explanation. However, the fact that Mr Michieli volunteered his contact with La Madre in the 7 August email tends to support the proposition that he thought he had done nothing wrong in contacting them. Having heard and observed Michieli's evidence on this issue, I accept that when he made contact with La Madre after the second non-solicitation order was made, he did not believe he was breaching the order and he had not remembered the December 2024 emails regarding the spare part.

71 In the circumstances, I accept the breach of second non-solicitation order occasioned by Mr Michieli's contact with La Madre was not done with direct intent to breach the order, was only drawn to Van Rooy's attention because Mr Michieli volunteered in correspondence that he had contacted La Madre, has not been repeated and has caused no loss of custom to Van Rooy.

72 Overall therefore, I do not regard the evidence as establishing that Mr Michieli's conduct was contumacious. I accept that in each instance his breach of the order was done in the mistaken belief that he was permitted to contact that client. Two of the instances of contempt Mr Michieli immediately admitted in correspondence once the circumstances were drawn to his attention. The two other instances of contempt were only drawn to Van Rooy's attention because in the 7 August email Mr Michieli volunteered that he had contacted those clients. There is no evidence of any further contempts after 7 August 2025.

73 The actual consequences of the contempts here are at the less serious end of the spectrum. Mr Michieli did not obtain any work from three of the four Clients; he billed Black Star Pastry $4,653.00.

74 All contempts are serious, they 'share a common characteristic in that they all involve an interference with the due administration of justice.'[14] Disobedience of court orders affects the administration of justice. These contempts are serious but I am satisfied that their gravity is ameliorated by the matters I have referred to above.

75 Van Rooy raised two instances of contempt with Mr Michieli on 1 August 2025. He immediately admitted those instances, explained he had not intended to breach the orders and assured Van Rooy he would not contact those clients again. Then on 7 August 2025 Mr Michieli provided Van Rooy with a list of all clients with whom he had made contact. I am satisfied that Mr Michieli was genuinely motivated to ensure he did not breach the orders in the future and made every attempt to be transparent with Van Rooy to ensure this was the case.

76 Mr Michieli immediately pleaded to the four instances of contempt and apologised to the Court once I had ruled that the orders were capable of compliance. He has offered to recompense Van Rooy the amount which he invoiced Black Star Pastry. I am satisfied that Mr Michieli has exhibited genuine remorse for his conduct.

77 These matters weigh substantially in his favour when it comes to a consideration of the appropriate penalty for the contempts.

78 Mr Michieli said the contempt proceedings had caused him stress and anxiety and placed a financial burden on him. I accept this is so, but I do not regard any of those matters as relevant to the appropriate sentence in this case.

79 I have had regard to the need to consider general and specific deterrence in any sentence I impose. Here, there is, in my view, little or no role for specific deterrence. The orders have expired, they were not breached in the period between 7 August 2025 and 15 September 2025 and, as I have stated, I am satisfied Mr Michieli did not breach them contumaciously. Mr Michieli has not previously been guilty of contempt of court, has expressed genuine remorse and apologised to the Court and I am satisfied is unlikely to commit further contempts.

80 General deterrence is an important consideration in the context of contempt of court. It is imperative that persons in the community understand the importance of obeying court orders and understand that breaches of those orders are a serious matter. Nonetheless, a sentence must not be disproportionate to the gravity of the offending.

81 I have taken into account all of the matters referred to above.

82 I should only impose a term of imprisonment as a last resort. The circumstances here plainly do not warrant imprisonment and I did not understand counsel for Van Rooy to submit that they did.

83 I have considered a fine. In light of the nature of the contempts and their relatively limited consequences for Van Rooy if I had imposed a fine it would have been in the sum of $4,653.00 and paid to Van Rooy. However, Mr Michieli has volunteered to pay that sum to Van Rooy in any event. In my view, he should be given an opportunity to do so in the next seven days and, if he does, I will not impose any penalty for the instances of contempt to which he has pleaded.

84 It is common practice in cases of contempt for costs to be awarded against the contemnor on an indemnity basis.[15] Nonetheless, the Court retains a discretion and, in my view, this is a relatively uncommon case.

85 Van Rooy charged Mr Michieli with six instances of contempt. It withdrew two charges and in relation to the other four I have determined not to impose any penalty. Insofar as Van Rooy sought to establish Mr Michieli had committed six contempts they partially succeeded, in that Michieli pleaded guilty to four instances. Insofar as Van Rooy sought to punish Mr Michieli by way of fine or imprisonment they failed.

86 In Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd & Ors ('Advan')[16] Gillard J said:

[C]ontempt proceedings should not be brought except in the clearest cases and where the circumstances demand that the contempt proceeding be brought to achieve obedience or to impose a penalty where the circumstances demanded punishment.

87 Here, there was no indication that contempt proceedings were necessary to achieve obedience to the orders. There is no evidence of any breach post 7 August 2025 and indeed all of Mr Michieli's actions post 1 August 2025 show a positive intent to comply with the second non-solicitation order. Nor, as events have turned out, is this an instance where the circumstances demanded punishment. In Advan, Gillard J awarded indemnity costs against the plaintiff. That would not be appropriate here. I accept that the evidence in Van Rooy's possession at least raised the possibility that Mr Michieli's contempts were contumacious. That is of course very different to proving those matters beyond reasonable doubt as it was obliged to do.

88 In the circumstances I would make no order as to the costs of either party.

[1] Deputy Commissioner of Taxation v Gashi (No 2) [2011] VSC 351, [18] ('Gashi').

[2] Gashi [22]−[23]; Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 113 (Gibbs CJ, Mason, Wilson and Deane JJ).

[3] Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors [2014] VSCA 261; (2014) 47 VR 527, 593 [275]−[276] (Ashley, Redlich and Weinberg JJA) ('CFMEU v Grocon').

[4] Hera Project Pty Ltd v Bisognin & Anor (No 2) [2019] VSC 625, [11] ('Hera Project').

[7] R v Sherwani [2017] VSC 147, [9].

[8] Rich v Attorney-General (Vic) [1999] VSCA 14; (1999) 103 A Crim R 261, 281−2 [46]−[47] (Winneke P).

[12] Transcript of Penalty Hearing on 25 November 2025, 23/1−11.

[14] CFMEU v Grocon 561 [129] (Ashley, Redlich and Weinberg JJA).

[16] [2003] VSC 201, [102].