Robert James Macleod v Australian Securities Commission [1993] FCA 379 (13 August 1993)

FEDERAL COURT OF AUSTRALIA

ROBERT JAMES MACLEOD v. AUSTRALIAN SECURITIES COMMISSION
No. G3011 of 1992
FED No. 553
Number of pages - 12
Contempt of Court

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Lee(1) and Hill(1) JJ

CATCHWORDS

Contempt of Court - Orders of court breached - whether necessary to give notice of actual making of Court order by consent to party who gave consent before that party can be guilty of contempt - standards of proof for civil and criminal contempts discussed - whether sentence of six months excessive.

Companies (Queensland) Code: s. 574

Corporations Law: s. 1324

Federal Court Rules: O.37 r.2

HEARING

BRISBANE, 29, 30 April 1993
13:8:1993

Appellant appeared in person.

Counsel for the Respondent: Mr Morrison QC and Ms O'Reilly

Solicitors for the Respondent: Australian Securities Commission

ORDER

THE COURT ORDERS THAT:
1. The appeal be dismissed.

2. The appellant pay the costs of the respondent of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

LOCKHART, LEE AND HILL JJ This is an appeal from two judgments given by a judge of the Court (Drummond J) on 4 and 11 March 1993 in which his Honour found that the appellant, Robert James Macleod, had committed wilful breaches of orders made in this proceeding when in the original jurisdiction of the Court.

2. In his judgment of 11 March 1993 his Honour made the following orders:-

(1) That the appellant be imprisoned for two months in respect of his
contempts constituted by the breach by him of an order of another
judge of the Court (Spender J) made on 3 July 1992 whereby the
appellant was restrained from disposing of, encumbering, taking
any steps to dispose of or encumber or dealing in any manner
whatsoever with, any property of any of the respondents to the
proceeding.

In referring to the respondents to the proceeding we mean the five respondents to the proceeding at first instance who were the appellant (as the first respondent) and four corporations. His Honour had found that the appellant had disobeyed that order by transferring his interest in certain real property in South Australia to his mother, Mrs Margaret Rae Wilkie, by two instruments of transfer executed on 27 June and 10 July 1992.

(2) That the appellant be imprisoned for two months in respect of a
contempt constituted by his breach of the order of Spender J of 3
July 1992, as varied by Cooper J on 21 July 1992, that he furnish
to the receivers appointed in the action as receivers of the
property of the respondents to the proceeding, by 9.30am on
Thursday, 23 July 1992, a list of all property in which the
appellant has had an interest, wherever the property is situated
in Australia or overseas, and whether the interest is presently
existing or has at any time since 1 January 1989 so existed and
whether owned by the respondents to the proceeding individually or
jointly or held upon trust for other persons.

3. The contempt found by his Honour was that the appellant failed to disclose his interest in the South Australian property in the list furnished to the receivers on 23 July 1992. Drummond J ordered that the sentences of imprisonment imposed by Orders 1 and 2 be served concurrently.

3. That the appellant be imprisoned for four months in respect of his
contempt constituted by breach of the orders of Spender J of 3
July 1992, as varied by the order of Cooper J of 21 July 1992
which restrained him from disposing of, encumbering, taking any
steps to dispose of or encumber, or dealing in any manner
whatsoever with, any property of any of the respondents to the
proceeding.

4. The appellant had obtained possession of a cheque in the sum of $7,200 drawn by a Mrs Carroll in favour of Starlight Film Studios Limited (one of the respondents to the proceeding), the property of Starlight Film Studios Limited, and attempted to persuade a Mr Carroll (the husband of Mrs Carroll) to endorse the cheque over to him personally, and in that the appellant returned the cheque to Mr Carroll after Mr Carroll refused to so endorse the cheque. His Honour directed that this sentence of four months imprisonment commence upon completion of service of the term of the two months imprisonment imposed by the other two orders.

5. His Honour ordered the appellant to pay the costs of the Australian Securities Commission ("the ASC") of and incidental to the motion for committal, to be taxed on a solicitor and client basis. He ordered that a warrant issue for the arrest of the appellant and for his committal to prison to serve the sentences of imprisonment imposed upon him and ordered also that the warrant for the arrest and committal of the appellant to prison lie in the registry of the Court unexecuted until 4pm on Wednesday, 17 March 1993. His Honour directed that, if the appellant attended upon the District Registrar of the Queensland District Registry or a deputy district registrar and furnished a written undertaking to the Court to prosecute an appeal against his Honour's orders with all expedition, the warrant was to remain in the Registry unexecuted until the determination of the appeal or earlier order of the Court. No subsequent order has been made, so the warrant remains for the present unexecuted.

6. The record before the Court tells us little about the background to the dispute between the parties which led to the making by the Court of these orders; but it is necessary to say something about the orders themselves and the circumstances in which they were made culminating in the contempt application before Drummond J.

7. On 29 June 1992 Heerey J made orders ex parte on the application of the ASC, being a species of Anton Pillar orders, which:-

. appointed receivers of the property of the respondents to the
proceeding and gave them various powers;
. ordered the appellant to deliver up to the Court his passport and
prohibited him from leaving Australia without the Court's consent;
. prohibited each of the respondents from taking or sending out of
Australia money of each of them;
. prohibited each of the respondents from taking, sending or
transferring securities, future contracts or other property of
each of the respondents from a place in Australia to a place
outside Australia;
. ordered pursuant to s. 574 of the Companies (Queensland) Code and
s. 1324 of the Corporations Law, that the respondents "by
themselves their servants or agents" be restrained from disposing
of, encumbering, taking any steps to dispose of or encumber, or
dealing in any manner whatsoever with, any and all property of the
respondents;
. prohibited the respondents from dealing with funds held in certain
banking accounts with Westpac Banking Corporation and Citibank
Limited except that the appellant was permitted to withdraw a
maximum of $250 per week from one of the accounts in his name with
Citibank for his personal use;
. ordered the respondents "by themselves, their servants or agents"
to deliver to the receivers at Brisbane "forthwith upon service of
a copy of this order" a comprehensive and detailed list of all the
property of the respondents whatever; the nature and extent of the
interest therein, wherever it is situated in Australia or
overseas, and whether the interest is presently existing or has at
any time since 1 January 1989 so existed and whether owned by the
respondents individually or jointly, or owned by the respondents
jointly with another party or parties, or held upon trust for
other persons;
. restrained the appellant and certain of the other respondents from
in any way disposing of or otherwise dealing with any money or any
property held by each of them as a result of investments in film
and video production offered by the second and third respondents;
. ordered that a copy of the application, affidavits in support and
exhibits thereto and a sealed copy of Heerey J's order be served
forthwith at the registered office of the respondent companies and
personally upon the appellant at his last known address and a copy
of the order upon the banks concerned.

8. On 30 June 1992 a Mr J A Burton (employed as a manager by Messrs Clout and Associates, Accountants of Brisbane of which firm Mr D L Clout is a principal and one of the two receivers appointed by order of Heerey J) introduced himself to the appellant as an employee of Mr Clout. Mr Burton delivered to the appellant a copy of Heerey J's order of 29 June 1992 together with a copy of a document which outlined the powers of the receivers. They were engaged in discussion for approximately two hours. The appellant demanded that Mr Burton return to him the keys of a BMW convertible motor car ("the car") and that he give him access to unit 8, Madison Point Apartments, 3472 Main Beach Parade, Surfers Paradise ("unit 8"). Mr Burton gave evidence which supported the conclusion that the appellant was the registered proprietor of unit 8. During the discussion between the two men, the appellant telephoned his solicitor, Mr I Skinner, using his mobile telephone. Whilst he was doing this the appellant was sitting at a table with a copy of Heerey J's order in front of him and he and Mr Skinner spent about 15 minutes discussing over the telephone the order page by page together with the document which outlined the powers of the receivers (this being Schedule 3 to the application filed in this proceeding which commenced it) and which enumerated the powers incorporated by reference into Heerey J's order as being the powers of the receiver. Mr Burton then spoke over the telephone to Mr Skinner who said that his client (the appellant) "may use force to obtain the keys from him and stated that he would sue me, personally, for failure to provide his client with access to his unit and to his motor vehicle". During that meeting between Mr Burton and the appellant they discussed certain orders made by Heerey J on 29 June which required the appellant to deliver up his passport to the Court and to deliver a list of the property of the respondents to the receivers. Mr Burton asked the appellant to get in touch with him the following morning to discuss the return of the car to the appellant and to arrange a time for an appointment with the receivers in order to deliver the list of the assets owned by the respondents. Mr Burton asked the appellant to contact him.

9. Before he left the building Mr Burton said to the appellant "I will speak to you tomorrow morning" and the appellant did not disagree with this remark.

10. The appellant did not attend at the office of the receivers on 1 July and did not telephone Mr Burton. At 5.45pm on 1 July Mr Burton telephoned Mr Skinner and asked him if he knew where his client was. Mr Skinner replied "I don't know where he is". Mr Burton told Mr Skinner that he wanted to speak to his client to which Mr Skinner replied "I will tell him that you are seeking him".

11. At 3.30pm on Thursday, 2 July a Mr R J Whitbread, an investigator employed by the ASC, served the appellant with a sealed copy of the order of Heerey J of 29 June together with a copy of the application in the matter at first instance, affidavits in support and exhibits thereto by handing them to the appellant personally (service thereof having been required by Heerey J's order).

12. Shortly after 3.30pm on 2 July Mr Burton called on the appellant at a motel on the Gold Coast Highway and spoke to him as he (the appellant) was leaving his room. Mr Burton explained to the appellant (as he had done earlier on 30 June) that the appellant was not able to deal with any property of the respondents which included removal of motor vehicles from Unit 8 and that if he did so he would be in contempt of court. He also asked the appellant to deliver to him the "investor cheques for the total amount of $56,820" which he said he understood he had in his possession by reason of certain advice given to him (Mr Burton). The appellant denied that he had the cheques in his possession. Mr Burton asked the appellant to make an appointment with him to deliver a list of his property to the receivers. Mr Burton explained to the appellant that failure to provide to the receivers a list of his property would be a contempt of court and that the order required him to provide the list "forthwith" (that being the requirement of the order in its then form) which he explained to the appellant meant immediately.

13. The appellant replied that he was on his way to Brisbane to talk to his solicitor and that he would get in touch with Mr Burton after he had spoken to his solicitor. He undertook to Mr Burton to contact him before the end of the day, but Mr Burton received no communication from him that day.

14. On 3 July 1992 the appellant and two of the corporate respondents to the proceeding moved the Court in Brisbane for orders including orders varying the orders of Heerey J of 29 June in certain respects and seeking orders restraining the receivers from selling the property of the respondents. In the alternative, orders were sought that, upon undertakings being given by the respondents to appeal against Heerey J's order of 29 June, his Honour's order should be stayed in certain respects including a provision that it should not operate to preclude the respondents using and enjoying unit 8 and the car and the appellant's personal effects and clothing and the payment of legal costs. This motion of the appellant and two of the corporate respondents was heard by Spender J on 3 July who ordered that Orders 1, 2 and 3 of Heerey J made on 29 June be vacated; and in substitution for those orders by consent made orders being in substance a repetition of the orders made by Heerey J on 29 June though with certain exceptions. Those exceptions included exceptions that the appellant be permitted to withdraw a maximum of $250 per week from an account in his name with Citibank for his personal use, that he be permitted the uninterrupted and unfettered use of unit 8, the car and his personal effects and clothing and that he be given access to moneys to cover legal costs of the respondents.

15. It is plain that the appellant, who was one of the applicants to Spender J for the variation of the orders of Heerey J, had knowledge of those orders, in particular knowledge of the restraints with respect to unit 8, the car and his personal effects and clothing.

16. Also on 3 July 1992 at about 2.30pm Mr Burton received a telephone call from the appellant who asked him to arrange for the return to him of the keys to the car and to unit 8. Mr Burton informed the appellant that the receivers had not been served with a copy of the order of Spender J of 3 July which gave the appellant the use of unit 8 and the car. He informed the appellant that he would arrange for the return of the keys when the order had been served on the receivers. He again asked the appellant to deliver to the receivers the investor cheques for $56,820. The appellant questioned the value of the cheques. Mr Burton also questioned the appellant about another cheque for which the appellant asked for further details. These details were furnished then by Mr Burton to the appellant who "immediately changed the topic". Mr Burton again told the appellant that the order of Heerey J of 29 June restrained the respondents from dealing with any of their property in any way whatsoever. The appellant and Mr Burton agreed that the appellant would attend at the offices of Messes Clout and Associates at 2pm on Monday, 6 July.

17. At about 4.50pm on Friday, 3 July the appellant attended at the offices of Messes Clout and Associates and requested the return of his personal effects and of a key to unit 8. Mr Burton conversed with the appellant and told him that he (Burton) confirmed the appointment he had made earlier to attend at the offices of Clout and Associates on 2pm on Monday, 6 July. The appellant gave no indication that he would be unable to attend the meeting or that an alternative appointment would be made.

18. At about 2.05pm on 6 July Mr Burton received a telephone call from the appellant who told him that his solicitor had instructed him that any communication must be through the solicitor. The appellant also informed Mr Burton that he was unable to keep the appointment arranged for 2pm on Monday, 6 July as previously arranged. The appellant informed Mr Burton that his solicitor would advise him that day by letter of a time at which the two men could meet. Mr Burton did not receive any communication from the solicitor for the appellant of an adjourned time at which the appellant would be able to attend the offices of Messrs Clout and Associates to deliver a list of his property or a list of the respondents.

19. On 10 July 1992 the appellant signed the transfer of the South Australian house (backdated to 27 June 1992) as transferor and a Mrs Wilkie signed it as transferee. The backdating was done on the instructions of the appellant. The significance of 27 June is that it was before 29 June which was the date on which the order of Heerey J was made which was the first order restraining the respondents (including the appellant) from disposing of their property.

20. On 21 July 1992, on the motion of the ASC, Cooper J made orders varying the order of Spender J of 3 July in certain respects including, so far as presently relevant, the time fixed by Spender J for provision of the list of assets by the appellant, deleting the words from paragraph 2(c) of the order of Spender J "forthwith upon service of a copy of this order" and inserting in lieu thereof the words and figures "by 9.30am on Thursday, 23 July 1992".

21. Shortly before 9.30am on 23 July a copy of a list of assets of the respondents to the proceeding (including the appellant) was delivered to the office of Mr Clout in accordance with paragraph 2 of the order of Cooper J made on 21 July.

22. The uncontradicted evidence of Mr and Mrs Carroll before Drummond J established that in June 1992 Mrs Carroll forwarded to the third respondent a cheque for $1,800 which she drew in its favour being 20% part payment of an investment totalling $9,000 which the Carrolls had agreed to make with the third respondent. At about the end of August the appellant called on Mr Carroll and gave him his version of what the ASC had done and procured Mr Carroll's signature to a petition expressing support by investors in the third respondent for the appellant's management of that respondent. Mr Carroll gave evidence before Drummond J that the appellant did not then mention that the third respondent was restrained from trading pursuant to the order of 3 July 1992. The appellant also enquired when Mr Carroll would be paying the balance of $7,200 of his investment in one of the third respondent's film projects. Mr Carroll said he would make the payment in two weeks.

23. On 18 September 1992 Mrs Carroll drew a cheque for the balance of $7,200 in favour of the third respondent and posted the cheque to its Sydney address. Sometime later she was telephoned by the appellant who asked whether the cheque had been sent. When told that she had posted it to the third respondent's Sydney office the appellant said that he was not happy about it going there but had someone who could collect it for him. A short time later the appellant again telephoned Mrs Carroll and told her that he had asked Mr Carroll to make out the cheque to him personally and not to the third respondent. The appellant asked if Mrs Carroll could make out another cheque in his name. Mrs Carroll referred the appellant to her husband. In the week commencing 21 September Mr Carroll said his wife telephoned him to tell him of this conversation. That same day the appellant contacted Mr Carroll and arranged a meeting for that evening. At that meeting, which took place, the appellant attempted to persuade Mr Carroll to make out the cheque to the appellant personally and not to the third respondent.

24. The appellant persisted thereafter in his efforts to persuade Mr Carroll to give the cheque for $7,200 which the Carrolls were bound to pay, to the appellant personally including attempts on 6, 12, 13 and 15 October 1992.

25. The primary question involved in the appeal is whether Drummond J erred in concluding that there was sufficient evidence that the appellant had notice of the terms of the relevant orders of Spender J and Cooper J. Drummond J held that there was sufficient notification of the orders based essentially upon two matters: first the fact that the order of Spender J of 3 July 1992 was made by consent and second the evidence of the conversations between the appellant and Mr Burton on 3 July 1992, the substance of which we have recounted.

26. The motion of the ASC for attachment of the appellant for contempt was brought pursuant to O 37 r 2 which provides that, subject to the rules, an order shall not be enforced by committal unless the order or a certified or office copy thereof is served personally on the person bound; and if the order requires (as this order does) the person bound to do an act within a specified time, the order or a certified office copy thereof is so served before that time expires (r 2(1)). The order or a certified or office copy thereof served under r 2 must bear a notice (naming the person concerned) that the person served is liable to imprisonment or to sequestration of property if, where the order requires the person bound to do an act within a specified time, the person bound refuses or neglects to do the act within that time or, where the order requires the person bound to abstain from doing an act, the person bound disobeys the order (r 2(3)).

27. Where a person liable to committal or sequestration of his property by way of enforcement of a judgment or order has notice of the judgment or order either by being present when the judgment is pronounced or when the order is made or by being notified of the terms of the judgment or order, whether by telephone, telegram or otherwise, the judgment or order may be enforced by committal of that person or by sequestration of his property notwithstanding that service had not been effected in accordance with r 2 (r 2(5)). The Court may dispense with service under r 2 (r 2(6)).

28. It was accepted by counsel for both parties that before the appellant can be held to be in contempt of the Court's orders it must be proved that he had notice of them. There is no evidence that the appellant was served personally with a copy of the relevant orders of Spender J and Cooper J. The appellant gave no evidence before Drummond J.

29. As a general rule a person will not be found to be guilty of contempt and an order for committal will not be made unless it can be shown that there has been personal service of the order disobeyed; but there are exceptions to that rule, a rule of long standing which underlies O 37 r 2. Rule 2(5) recognizes exceptions which in substance are exceptions recognized in the decisions of courts which preceded the introduction of the rule. Useful discussion of the principles may be found in In Re Bishop (1880) 13 ChD 110; Ronson Products Limited v Ronson Furniture Limited (1966) Ch 603; Trade Practices Commission v C G Smith Pty Limited [1978] FCA 2; (1978) 30 FLR 368; Sunbrite Products (Aust) Pty Limited v Jabuna Pty Limited [1980] FCA 4; (1980) 47 FLR 73; Windsurfing International Inc v Sailboards Australia Pty Limited [1986] FCA 384; (1986) 19 FCR 110; Re Intex Consultants Pty Limited (1986) 2 QdR 99; and see Borrie and Low The Law of Contempt (2nd edn) 1983 p 437 et seq.

30. It was agreed by the parties that the standard of proof required to establish whether the appellant is in contempt of the Court's orders, is the criminal standard of proof. Drummond J applied that standard. Courts have differed as to what is the appropriate standard of proof in cases of civil contempt: see (Consolidated Press Limited v McRae [1955] HCA 11; (1955) 93 CLR 325; Australian Consolidated Press Limited v Morgan [1965] HCA 21; (1965) 112 CLR 483); Clifford v Middleton (1974) VR 737 at 739; Fullerton v Gardiner, Powell J, 31 October 1978, unreported; Australasian Meat Industry Employees' Union v Mudginberri Station Pty Limited [1986] HCA 46; (1986) 161 CLR 98 at 108-9; Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15; N.S.W. Egg Corporation v Peek (1987) 10 NSWLR 72 at 81-3; Sun Newspapers Pty Limited v Brisbane TV Limited (1989) 92 ALR 535 at 541; CCOM v Jiejing [1992] FCA 325; (1992) 36 FCR 524; and R v Eades (No 1) (1991) 6 WAR 402. In view of the agreement between the parties it is not necessary for the question to be resolved in this case.

31. Counsel for the appellant submitted that Drummond J erred in relying (as part of the material on which he based his conclusion that there was sufficient notification to the appellant of the terms of the orders) on the fact that the order of Spender J was by consent. There is no evidence that the appellant was in Court when the consent order was made by Spender J, so it was argued that the fact that the order was made with the consent of the appellant cannot warrant an inference of knowledge that the order had been made in fact or that, if made, it was communicated to the appellant. It was argued that the only inference that could be drawn from the fact of the making of the consent order is that the appellant gave instructions to his lawyers to consent to an order in the terms of Spender J's order of 3 July 1992; and that the fact of such instructions having been given cannot support an inference that the appellant knew that the order was in fact made in terms of the instructions.

32. It is well established that a barrister or solicitor acts within the terms of his or her implied authority to consent to orders of this kind made by Spender J on 3 July 1992: see Downing v Cage (1699) 1 Eq Cas Abr 165; Moscati v Lawson (1835) 1 Moo and R 454; Parkinson v Hanbury (1867) LR 2HL at 6; Sourendra Nath Mitra v Srimati Tarubala Dasi (1930) 46 TLR 191. If there was no direct evidence that the terms of the order came to the notice of the appellant then there would be some substance in the submission of counsel for the appellant. But this is a case which turns essentially upon its own facts and within them lies the answer to this question. In our opinion there is sufficient evidence that the appellant had notice of the terms of the orders of Spender J and Cooper J within the terms of O 37 r 2(5)(b), the notice being of the kind that the general law regards as sufficient in these circumstances.

33. We shall mention the particular facts and circumstances in their chronological order, as this most clearly presents the facts as they must have been known to the appellant. We shall not narrate the facts in detail as they have been set out by us earlier.

1. The appellant knew of the making of the orders of Heerey J ex
parte on 29 June 1992 and of their relevant terms. He acquired
this knowledge not later than 30 June during his conversation with
Mr Burton when Mr Burton delivered to the appellant a copy of
Heerey J's order and they were engaged in discussion for
approximately two hours. The specific paragraphs of Heerey J's
order which were discussed included the orders requiring the
appellant to deliver a list of the property of the respondents to
the receivers.
2. On 2 July 1992 the appellant was served personally by Mr Whitbread
with a sealed copy of Heerey J's order of 29 June.
3. On 3 July 1992 the appellant and two of the corporate respondents
were the moving parties before the Court for orders varying the
orders of Heerey J of 29 June, specifically with respect to the
variation desired by the appellant of removing the restrictions of
the 29 June orders with respect to unit 8, the car, the
appellant's personal effects and clothing and moneys required for
payment of legal fees.
4. Orders were made by Spender J on 3 July, by consent of the
parties, including the appellant. Although the orders of Spender
J vacated the substance of the orders of Heerey J, they
substituted other orders by consent which were in essence the same
as those made by Heerey J for presently relevant purposes, save
that they excepted from the ambit of the fresh orders the
restraint upon the appellant that otherwise would have operated
with respect to his use of unit 8, the car and his personal
effects and clothing and moneys available to pay legal costs.
5. During the conversation between the appellant and Mr Burton on 3
July, the terms of which were set out earlier, the appellant asked
Mr Burton to arrange for the return to him of the keys to the car
and unit 8. This indicates that the appellant was aware then that
the orders of Heerey J had been varied by Spender J so as to
permit him the use of unit 8 and the car.
6. Shortly before 9.30am on 23 July a copy of a list of assets of the
respondents to the proceeding, including the appellant, was
delivered to the office of Mr Clout in Brisbane, that is shortly
before the expiration of the time fixed by Order 2 of Cooper J.
made on 21 July 1992.

34. This case is, however, a clear example of the need for parties who have the benefit of orders of the Court, whether by consent or not, to comply with the rules of the Court with respect to the service of those orders. This is particularly so if it is sought to allege that the party to be bound by the orders has been guilty of contempt. The rules are clear. If they had been complied with in the present case, the question that was before Drummond J and is before this Full Court on appeal would not have arisen.

35. Counsel for the appellant also argued that Drummond J erred in relation to the imposition of the periods of imprisonment which he imposed and which totalled some six months. His Honour held that the appellant had deliberately committed serious breaches of the orders of the Court, separated by a period of about two months. It was a case in which there was no sign of contrition or concern about the nature of the conduct of the appellant at any stage up until the time of sentence, no mitigating circumstances had been demonstrated and his Honour concluded that the only appropriate punishment was a period of imprisonment. He said that he had considered the cases to which he had been referred by counsel for the ASC, which sentences had been imposed for contempt which ranged from a period of two to six months where the contempt was (as his Honour found the present case to be) constituted by breaches of court orders. His Honour said of those cases that all of them: "involve a single breach, although it is obvious that each involves a serious breach of a Court order".

36. Counsel for the appellant argued that the relevant cases did in fact deal with multiple breaches, not a single breach. Reference was made to Madeira v Roggette Pty Limited (No 2) (1992) 1 QdR 394; Re Intex Consultants, supra and Australian Securities Commission v Cook, Dowsett J, 13 February 1992 and 14 February 1992, unreported.

37. It was submitted also that Drummond J failed to give due consideration to the fact that no irreversible consequences had flowed from the acts of contempt found against the appellant and that his Honour failed to give weight to the fact that there had been no notification of the penal consequences for breach of Spender J's order as given to the appellant. It has not been established that Drummond J erred in these respects.

38. It was argued finally that his Honour failed to take into account the fact that a penalty of imprisonment would prejudice the appellant in the conduct of the proceeding in this Court which has given rise to the appeal.

39. Although it is open to argument that certain of the cases to which Drummond J referred were not necessarily cases involving a single breach, this factor does not in our opinion vitiate his Honour's judgment. We are not persuaded that the notion of a "single breach" played a determinative role in his Honour's reasons for imposing the sentences which he did. Nor are we otherwise persuaded that the sentences are excessive. The contempt is serious and his Honour was entitled to impose the sentence which he did in the exercise of his discretion.

40. We would dismiss the appeal with costs and make the following orders:

1. That the appeal be dismissed.
2. That the appellant pay the costs of the respondent of the appeal.

41. As the appeal has been determined today, the order of Drummond J made on 11 March 1993 that:

"If the first respondent attends upon the
District Registrar or a deputy district
registrar and furnishes a written undertaking to
the Court to prosecute the appeal with all
expedition, then the warrant is to remain in the
Registry, unexecuted, until the determination of
the appeal or earlier order of the Court"

now ceases to operate.