Australian Competition & Consumer Commission v Abel Rent-A-Car Pty Ltd [2000] FCA 479 (12 April 2000)

Last Updated: 19 April 2000

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Abel Rent-A-Car Pty Ltd

[2000] FCA 479

CONTEMPT OF COURT - respondents' failure to carry out the orders of the Court - no or no adequate steps taken by director of company to comply with Court orders - director a guilty party with the company - failure to alter signs as required by Court order - whether or not the respondents allowed (whether inadvertent or not) public access to their web pages in contempt of Court orders

Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110 referred to

Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd [1998] FCA 1440 referred to

The University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 referred to

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ABEL RENT-A-CAR PTY LIMITED ACN 060 876 468 AND STEVEN MARK CONN

Q 34 OF 1999

DRUMMOND J

12 APRIL 2000

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 34 OF 1999

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	ABEL RENT-A-CAR PTY LIMITED ACN 060 876 468 FIRST RESPONDENT STEVEN MARK CONN SECOND RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	12 APRIL 2000
WHERE MADE:	BRISBANE

THE COURT DECLARES THAT:

1. The first respondent has committed the following contempts of court:

(A) It, by 11 June 1999, had not altered its signage, which included the text specifying a price of $29 per day or any other price for rental of any vehicle, by adding beside that text the additional text prominently stating "plus mileage" or, alternatively, text prominently stating the number of kilometres included, without further charge, in that rental price.

(B) It, by 11 June 1999, had not altered its billboard signage at its depot in Cairns, which signage specified a price of $29 per day for rental of trucks, by deleting the reference to trucks.

2. The second respondent has committed the following contempts of court:

(A) He, as the director of the first respondent, took no or no adequate steps to ensure that the first respondent was not in contempt of court in the manner referred to in Declaration 1(A).

(B) He, as the director of the first respondent, took no or no adequate steps to ensure that the first respondent was not in contempt of court in the manner referred to in Declaration 1(B).

THE COURT ORDERS THAT:

3. The further hearing be adjourned to a date to be fixed for the purpose of receiving submissions on penalty and for the purpose of dismissing the Australian Consumer and Competition Commission's notice of motion save in so far as it is the subject of the Declarations above.

4. The costs of and incidental to the notice of motion be reserved to a date to be fixed in accordance with Order 3.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 34 OF 1999

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPLICANT
AND:	ABEL RENT-A-CAR PTY LIMITED ACN 060 876 468 FIRST RESPONDENT STEVEN MARK CONN SECOND RESPONDENT

JUDGE:	DRUMMOND J
DATE:	12 APRIL 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 The Australian Consumer and Competition Commission seeks orders that the first respondent and its controlling director, the second respondent, be dealt with for contempt of court for the breach by the first respondent of the following orders made on 24 March 1999:

Order 1

Unless otherwise earlier ordered the first respondent, by its officers, servants and agents or otherwise, within 45 days of today alter all its signage, including depot, billboard and vehicle signage:

(a) which includes the text specifying a price of $29 per day or any other price for rental of any vehicle, by adding beside that text the additional text prominently stating `plus mileage' or, alternatively, text prominently stating the number of kilometres included, without further charge, in that rental price;

...

(c) which includes the text specifying a price of $29 per day for trucks, by deleting the reference to trucks;

...

Order 4

Unless otherwise earlier ordered, the first respondent, by its officers, servants and agents or otherwise, within 14 days of the date of this order cause to be modified each page of its Internet website located at http://www.abel.com.au and any other website it may operate or maintain from time to time as follows:

...

(b) where any page of the site includes text specifying a price for rental of any vehicle, by adding beside that text the additional text prominently stating `plus mileage' or, alternatively, additional text prominently stating the number of kilometres included without further charge in that rental price;

...

2 On 5 May 1999, the period for compliance with Order 1 was extended by order of a judge of the Court from 8 May 1999 to 18 May 1999.

3 The Commission's Statement of Charge alleges in par 9 that the first respondent disobeyed Order 1(a) set out above in the following way:

"As at the date hereof (ie, 11 June 1999) the First Respondent has not altered its signage, including depot, billboard and vehicle signage, which includes the text specifying a price of $29 per day or any other price for rental of any vehicle, by adding beside that text the additional text prominently stating `plus mileage' or, alternatively, text prominently stating the number of kilometres included, without further charge, in that rental price."

4 The Commission further alleges in par 10 that the first respondent has disobeyed Order 1(c) in the following way:

"As at the date hereof (ie, 11 June 1999), the First Respondent has not altered its billboard signage at its depot in Cairns, which signage specifies a price of $29 per day for rental of trucks, by deleting the reference to trucks.

That signage includes the following text:

`ABEL

RENT NEW CARS AND TRUCKS!!!

$29* PER DAY

CALL ... 13.14.29 TODAY'."

5 The Commission finally alleges in par 11 that the first respondent disobeyed Order 4(b) in the following way:

"Since not later than 9 June 1999 the first respondent has caused to be displayed on its Internet website located at http://www.abel.com.au:

(a) web-pages containing representations that utility vehicles (`utes') are available for rental for $29 per day, which web-pages do not also contain any text stating `plus mileage' or the number of kilometres included without further charge in that rental price; and

(b) web-pages containing representations that trucks are available for rental for $49 per day, which web-pages do not also contain any text stating `plus mileage' or the number of kilometres included without further charge in that rental price."

6 The Commission did not pursue its claim for interlocutory injunctive relief: it apparently was satisfied that, by the time of the hearing, the first respondent was then complying with the orders of 24 March 1999.

7 As to the second respondent's alleged contempt, the Commission submits that he, being at all material times a director of the first respondent, took no or no adequate steps to cause the first respondent to comply with these orders. If proven, such conduct by a sole director of a company bound by a Court order will make the director a guilty party with the company in the relevant contempt by the company. See Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110 and Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd [1998] FCA 1440.

8 At the hearing, counsel for the respondents initially confirmed that they did not dispute the breaches alleged of Orders 1(a) and 1(c) though they contended that such breaches were inadvertent and not wilful. Counsel departed from this concession at the end of the hearing. The respondents denied any breach of Order 4(b) in respect of the first respondent's Internet website. In the course of the hearing, the respondents clarified their position as to the alleged breach of Order 4 by, in effect, accepting that prima facie, such a breach had occurred, but that the question was whether there was an innocent explanation: Mr Flood, the person responsible for setting up the first respondent's website and on whose evidence the respondents relied, acknowledged that, on 21 June 1999, the first respondent's publicly accessible website did contain material that he said should not have been publicly accessible. Counsel for the respondents also stated that they did not wish to contend that the Commission had failed to comply with any of the procedural steps prescribed for bringing the instant contempt application before the Court or that the respondents lacked knowledge of the orders.

9 As to the breach of Order 1(a), the second respondent swears that, since 1 May 1999, the first respondent has adopted new terms of business which involve offering for hire for $29 per day only small cars such as Daihatsu Charades with unlimited kilometres. The respondents contend that that change rendered Order 1(a) irrelevant.

10 The Commission does not accept this evidence. It points to the fact that the second respondent says that new terms of trade were implemented from 1 May 1999, which would then have justified an application by the first respondent to amend Order 1(a) of 24 March 1999. In the form in which it then stood, that order required compliance by 8 May 1999. Yet the respondents applied to a judge of the Court on 5 May 1999 to have the whole of Order 1 varied to extend the time for compliance from 8 May 1999 to 18 May 1999. No application to vary Order 1(a) was then made, though, if the second respondent is to be accepted, the variation of Order 1(a) ultimately sought by the respondents to reflect the changed terms of trade by motion filed 10 June 1999 could have been more appropriately made when the respondents brought the matter back before the Court on 5 May 1999.

11 Next, the Commission points out that its solicitor wrote to the respondents' solicitor on 18 May 1999, the last day for compliance by the first respondent with Order 1(a) and asked for advice "as a matter of urgency [as to] your client's intentions with respect to compliance with the orders of 24 March 1999". The respondents' solicitor wrote in reply on 20 May:

"Our client has taken the steps required to satisfy the orders made by Drummond J.

Specifically our client has attended to the following matters;

(1) The amendment of its billboard and depot signage in accordance with Order 1;

(2) ..."

12 This reply is inconsistent with the second respondent's assertion that, as early as 1 May, the first respondent had changed its terms of trade to make it inappropriate for the first respondent to be required to incur the expense of altering its signage to comply with Order 1(a). Moreover, it was not until the respondents' solicitors wrote to the Commission's solicitor on 4 June 1999 in answer to the complaint that the respondent had not complied with the orders of 24 March 1999 that the respondents informed the Commission that they intended to seek an order varying Order 1(a) in view of the changed terms of their business.

13 But the Commission did not dispute that the first respondent was entitled to the variation of Order 1(a) sought by its motion filed on 10 June 1999, which was only justifiable on the basis that the first respondent had indeed changed its terms of trade as the second respondent swears at some time prior to 10 June 1999. Though the points made by the Commission raise doubts as to the reliability of the second respondent's evidence, I am not prepared to conclude, in the absence of cross-examination of the second respondent, that his evidence that the first respondent changed its terms of trade as early as 1 May 1999 is unacceptable.

14 However, that the first respondent changed its terms of trade in relevant respects prior to 18 May 1999, so as to justify the variation of the order eventually sought on 10 June 1999, and obtained on 24 June 1999, is no answer to the charge of contempt by breaching Order 1(a). The first respondent was bound by an order of the Court to make the signage changes the subject of Order 1(a) by no later than 18 May 1999. The second respondent says in his affidavit that he believed it was unnecessary for the first respondent to comply with the order once he had caused the first respondent to change its terms of trade. The clear inference is that he, and thus the first respondent, deliberately omitted to take the action necessary to comply with the order, for reasons he thought good. Such a mistaken belief, while relevant to punishment, is no answer to the charge.

15 Though he had conceded at the start of the hearing that a breach of Order 1(a) (and of Order 1(c)) was made out, at the end of the hearing counsel for the respondents submitted that there was no breach of either order because there was nothing more than unintentional non-compliance. This submission is rejected. I find that the second respondent caused the first respondent to deliberately breach Order 1(a) by not having its signage altered, in the way required by 11 June 1999, the date by reference to which it is alleged in the Statement of Charge that this breach occurred.

16 I am also satisfied that the Charge that the first respondent breached Order 1(c) is made out. This order required the deletion by 18 May 1999 of any reference to "trucks" in signage specifying a price of $29 per day. It too had not been complied with by 11 June 1999, in so far as the first respondent had not taken proper action to have the necessary changes made to its signage at Cairns.

17 The Commission's evidence that the first respondent's signage at Cairns still contained, as late as 11 June 1999, text which Order 1(c) required to be removed by no later than 18 May 1999, is not disputed.

18 The respondents' submission was that the second respondent gave clear instructions to the first respondent's staff to comply with this order but that, for reasons beyond the control of the respondents, the order was not complied with before the application was filed on 11 June 1999 (though it had been complied with when the hearing commenced).

19 By letter dated 2 June 1999, the Commission's solicitor wrote to the respondents' solicitor referring to its prior letter complaining of non-compliance with, among other things, this order and threatened contempt proceedings unless the order was complied with by 4 June 1999. On 4 June 1999, the respondents' solicitor replied to the Commission's solicitor saying, among other things:

"... our client's signwriter will have addressed the Cairns signs early next week. Our client is unable to explain why this work did not appear to have been completed."

20 By letter of 8 June 1999, the Commission's solicitor advised the respondents' solicitor, among other things:

"I also draw to your attention that your clients' signage in Cairns has still not been amended. I note that this was raised with you over two weeks ago."

21 The Commission's solicitor gave the respondents "one final opportunity to put all outstanding matters in order", saying that, unless the respondents "have checked and amended all signage as required, including without limitation, the Cairns signage" by 10 June 1999, contempt proceedings would be instituted. The response from the respondents' solicitor on 10 June 1999 was confined to a letter of 10 June 1999 enclosing copies of the first respondent's notice of motion seeking variation of Order 1(a) and an affidavit sworn by the second respondent, which supported the variation sought. Neither the respondents' solicitor nor the second respondent made any response to the complaint on behalf of the Commission, that Order 1(c) had still not been complied with in respect of the Cairns signage. In particular, the second respondent did not then reveal to the Commission the extensive, ongoing effort he now claims he put in, from late March to early June, in trying to get the Cairns signage in order.

22 In his affidavit, the second respondent says that during the period 23 - 30 March 1999 he discussed with the first respondent's part-time Marketing Manager, Ms Adams, the orders of 24 March 1999 and gave her instructions to take steps to ensure compliance with those orders. His instructions included directions to contact the first respondent's signwriters and Internet site developers, to advise them of the changes that needed to be made to comply with the orders, to procure quotations for the changes and to direct the undertaking of the changes. He says that from early April to 3 May 1999 he spoke with Ms Adams on a weekly basis about what was being done to implement the orders of 24 March 1999 and was told by her, in relation to signage, that she was discussing the signage with the first respondent's signwriter Cox and that this process was "under control". On 3 May 1999, however, he says Ms Adams told him she was concerned about Cox's progress, so he gave her instructions to press Cox to complete the work and, a little while later, was told by her that the signs should be done "within a couple of weeks". He says that, by 6 May 1999, he had received a facsimile from Cox stating that changes to the first respondent's signage would be completed "within fourteen working days". This facsimile, however, dealt only with the signage at various Brisbane and Gold Coast sites.

23 The second respondent says he first learned that the Cairns signs had not yet been amended from a facsimile received on 22 May 1999 from the first respondent's Cairns Office Manager. This facsimile reports a call on the Cairns Manager on 22 May 1999 by Mr Cant, an agent of the Commission, to inquire why the Cairns signage had not been changed.

24 Although subsequent to giving his initial instructions at the end of March to Ms Adams, the second respondent says he checked with her from time to time to see how the work of changing the first respondent's signage was going, he spoke to her only about the signwriter Cox, ie, a signwriter in Brisbane who looked after the first respondent's signwriting work in the Brisbane/Gold Coast area only.

25 Ms Adams generally confirms the second respondent's evidence. In particular, she says that she had frequent contact with Cox between the beginning of April and early May to try to get him to provide quotes "to ensure that all of Abel's signs were amended to comply with the Orders" of 24 March 1999. She says that by 3 May 1999 she began to be concerned that he might not be able to have the work completed within the time required. She contacted Cox again and received the facsimile from him on 6 May 1999 also referred to by the second respondent, stating that the work in the Brisbane/Gold Coast area would be completed within fourteen days. She deposes to follow-up calls she made to Cox subsequently.

26 It was the same facsimile from the first respondent's Cairns Office Manager that the second respondent refers to that first alerted her, on 24 May 1999, that the Cairns signage was still outstanding. She says she immediately spoke with both the second respondent and then Cox to advise him of the urgency of attending to the Cairns signage. It is, I think, clear that Ms Adams gave no instructions to Cox with respect to the Cairns signage until 24 May 1999, at the earliest, when the Cairns Office Manager alerted both the second respondent and her to the call made by the Commission agent. She says she immediately then turned to Cox to have the work done there. But he had only ever been asked to quote and had only quoted for changing the signage in the Brisbane/Gold Coast area. He was based in Brisbane. She does not suggest she had any good ground for thinking he would be able to attend to the work at Cairns promptly. She goes on to record in her affidavit how subsequently, Cox told her he would have to procure quotes from sub-contractors because he did not have his own staff in Cairns, that as late as 28 May 1999 he was still saying he was encountering difficulty in finding anyone to undertake the work there and how finally, in despair at Cox ever attending to the Cairns work, Ms Adams said that on 3 June 1999 she telephoned the first respondent's Cairns Office Manager "and told him that I needed him to urgently get quotations for the amendment of the Cairns Signs". She refers to making follow-up calls to the Cairns manager on 4 June 1999 and 7 June 1999 and, on the latter occasion, being told by the manager of difficulties he was encountering in finding a Cairns signwriter who would attend to the work. She says she was able, on 8 June, to locate a Cairns signwriter prepared to do the work but, after having him contacted, was told that it could not be done at the earliest until 15 June 1999. She says that when she telephoned the Cairns Office Manager on that date, he confirmed that the signage had been amended.

27 The evidence of the second respondent as to having given close attention to ensuring the necessary work including that at Cairns, is inconsistent with what the respondents' solicitor said in his letter of 4 June 1999 to the effect that the respondent was then unable to explain why the Cairns work had not been completed. Until 24 May 1999, neither the second respondent nor anyone else on behalf of the first respondent made any attempt to ensure that the Cairns signage would be changed in compliance with Order 1(c). The true position is that he had overlooked Cairns until the facsimile of 22 May 1999 was received. The evidence of Ms Adams indicates that until then, she too had not turned her mind to the need for work to be done in Cairns. It is, I think, clear that, when the second respondent instructed Ms Adams in late March to attend to changing the signage in accordance with the orders of 24 March 1999, he did not draw her attention to the need to have that work done in Cairns also.

28 The delay by the second respondent, and the other conduct by himself and Ms Adams to which I have referred, justifies the conclusion that the Cairns signage remained unaltered at the date alleged in the Charge, 11 June 1999, because of a failure by the second respondent to take appropriate action to ensure Order 1(c) was complied with in Cairns. This cannot be passed off as only unintentional non-compliance by the first respondent with this order: see The University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 at 12 - 13. The second respondent's failure is sufficiently serious to warrant a finding of contempt against both respondents.

29 I find that the second respondent made no proper attempt to ensure that the first respondent would comply with Order 1(c) in relation to its Cairns signage until receipt of the Cairns Office Manager's facsimile of 22 May 1999 alerted him to the fact that the first respondent could not avoid attending to the signage there. Thereafter, he left it largely to Ms Adams to deal with Cairns. She wasted a good deal of time in trying to have the work done there by Cox when the appropriate course was what she says she ultimately followed on 3 June 1999, when she instructed the Cairns Office Manager to get quotes from local signwriters. Both respondents are guilty of the contempt here charged.

30 As to Order 4(b), the first respondent was required to comply with it by 7 April 1999. However, the Statement of Charge confines the Commission's complaint to breach of this order to the first respondent "since not later than 9 June 1999" having caused to be displayed on its Internet website, with respect to utility vehicles and trucks, material that contravened Order 4(b). No doubt the Commission so formulated the Charge against the background of its patience in repeatedly giving the respondents further time to comply with this particular order (as well as the other orders) before taking the step of instituting contempt proceedings.

31 The first respondent's website, at 12 April 1999, consisted of a single page consisting of its name, a legend: "Rent new cars & trucks $29* per day" and reference to a new site opening in mid April 1999. When the Commission checked the website on this date and discovered that it did not comply with Order 4(b), it had its solicitor write to the respondents' solicitor complaining of the breach and calling on the respondents to remedy it by 13 April 1999 or face further Court proceedings. Neither the respondents nor their solicitor replied to this letter, though by 14 April 1999, the first respondent's website was altered from its 12 April appearance. The Commission's solicitor wrote again to the respondents' solicitors on 15 April 1999 complaining of their failure to reply to the letter of 12 April 1999 and stating: "However, the Commission has observed that the website was further altered to comply with the orders at approximately 2.30 pm on 14 April 1999".

32 This letter produced a prompt reply: on 16 April 1999 the respondents' solicitors wrote saying, among other things: "We note your confirmation that you regard the contents of our client's website to comply with the orders of 24 March 1999". That such confirmation had been given was disputed by the Commission's solicitor in its reply of 16 April 1999. It does not appear that the first respondent's website, as altered on 14 April 1999, did in fact comply with Order 4(b). Notwithstanding this, the Commission did not make any further complaint about the respondents' website until early June 1999. But the second respondent has in his evidence placed emphasis on the website as it was on 14 April 1999, in reliance on the proposition that the Commission accepted that it complied with Order 4(b).

33 On 9 June 1999, a Commission officer again checked the first respondent's website. The first page, with its reference to: "Rent new cars $29* per day" constitutes a clear breach of Order 4(b), though that is not the subject of complaint in the Statement of Charge. The officer moved from the "our fleet" icon on the first page to the "our fleet" page, which refers to a number of vehicles, including "traytops" (utilities) being available for "$29* per day" and "trucks" at "$49* per day". In small print at the bottom of this page, there is an asterisk and the words "Conditions apply".

34 The Commission officer then clicked from the "our fleet" page of the website to a number of links, including the "traytop" page. This page referred to a "Toyota traytop or similar" and to "$29* per day". In small print at the bottom of the page there is an asterisk and the words "Conditions apply". The officer clicked on this phrase and a page opened with the heading "Conditions apply" and with six conditions, one of which read: "Metro rate only (Brisbane/Gold Coast/Toowoomba) add $5 per day for country rental". Clicking on the "truck" icon on the "our fleet page" led the officer to a page referring to "Isuzu Truck or similar" and "$49* per day" and "*Conditions apply". Clicking on this last phrase took the officer to the same "Conditions apply" page already referred to. Neither the "our fleet" or the "traytop" or the "truck" pages contained any explanation about whether the hire rates referred to covered limited or unlimited mileage for utilities and trucks (and any other vehicles), something that Order 4(b) required each of these pages to make clear.

35 The Commission officer visited the first respondent's website again on 11 June 1999 and the pages opened on 9 June again appeared unaltered. The material relating to "utes" and "trucks" then displayed on the website was material that Order 4(b) did not permit the first respondent to display.

36 But the respondents deny any breach of Order 4(b). They submit that the first respondent took all reasonable steps to ensure compliance with the order. They further submit that by reason of circumstances beyond the control of the respondents, the offending material on the website may have appeared there because the computer used by the Commission officer may have previously accessed the site and retained a copy in its cache memory which the officer accessed on 9 and 11 June. It was further said that if the web-page accessed by the Commission officer on 9 and 11 June was contained within the memory of the proxy facility of the server used by the Commission's computer as a result of computers used by third parties having accessed that particular Abel website, then the offending material may have been accessed by the Commission officer through the proxy.

37 Ms Adams dealt with Mr Flood, the Sales and Marketing Manager of Site-Zero Internet Pty Ltd, the company which constructed the first respondent's websites. Ms Adams says that prior to June 1999, the first respondent's website was amended to put up the temporary page the subject of the letter from the Commission's solicitor of 12 April 1999. This page is exhibit KP-2 to Ms Prowse's affidavit of 21 April 1999. The Commission's solicitor said this page was clearly in breach of Order 4. It was a later version that was the subject of the letter of 15 April 1999 in which the solicitor said that the site had been further altered to comply with the order by 14 April 1999.

38 Flood's affidavit was filed and read by leave without objection on the part of the Commission on the morning of the hearing. The Commission did not seek to cross-examine Flood or to put any material of a technical nature relevant to his evidence before the Court.

39 Flood says in the first week of April 1999 he was instructed by the second respondent to remove from public viewing the website then publicly accessible, the contents of which he does not identify, and to replace it with an "under construction" page which he identifies as the page viewed by the Commission's officer on 14 April 1999, ie, the page which the Commission is said to have accepted did comply with Order 4(b). Flood said he launched this particular web-page in early April 1999 and told both the second respondent and Ms Adams that he had done this. There was apparently ongoing work being done by his company for Abel. Flood refers to a number of meetings with the second respondent and Ms Adams between early April 1999 and the date of his affidavit, 23 June 1999, and to being told "on at least four occasions" not to put any other Abel website on public view without express authority.

40 He says he was never instructed to make the website with its numerous pages, which the Commission officer accessed on 9 and 11 June 1999 and which he calls "the draft developmental pages", publicly accessible. He describes them as "an old draft of the Abel Website, which has been subsequently amended". He says these pages were never authorised for public release by anyone on behalf of the respondents. The second respondent gives similar evidence about these pages.

41 Yet for Flood's theories about how nevertheless the Commission's officer could have accessed them on 9 and 11 June 1999 to have any substance, it would appear to be necessary for these "old" pages to have been publicly accessible at some earlier time and, in particular, before 14 April 1999. Flood theorises how the Commission, when it went to the Abel website on 9 and 11 June 1999, may have retrieved the "old developmental pages" from its own computer's cache memory. This theory involves the proposition that the offending pages were once publicly accessible, had been visited by the Commission's own computer and had been stored in its cache memory and retrieved from that on 9 and 11 June 1999. This does not fit with the Commission's evidence, undisputed by the respondents, that on the occasions the Commission officer visited the Abel website in the first half of April, she accessed pages totally different from the offending pages. She did not, according to her evidence, visit the site again until 9 June 1999, when she accessed the offending pages. (No reference was made by the respondents in submissions to Flood's exhibit DF4. Its significance was not the subject of any explanatory evidence. It is therefore unnecessary to comment upon it.)

42 I would have thought that if any Abel material had been cached in the Commission's computer, as Flood suggests, it would have been the April format of that material, not the draft developmental pages, which it seems on Flood's theory would have had to have been publicly accessible at some time before the Abel site was changed to its April format. Yet both Flood and the second respondent say that the old developmental pages were never publicly accessible.

43 Flood's second theory is that the offending pages may have been on Abel's Internet service provider server and when the Commission went to the Abel website on 9 June 1999, it called up those pages from the service provider's stored information acting as a proxy. This theory appears to suffer the same defect as Flood's "cached memory" theory.

44 Flood says, by way of yet another theory for explaining how the Commission officer could have accessed the "old developmental pages" on 9 and 11 June 1999, without any fault on the part of the respondents, that, in mid May, on the second respondent's instructions, he arranged for an organisation called "Logic World" to become "the future Internet Service Provider" for the Abel website and to reserve a site address "for future allocation for the purposes of an Abel Website". Flood says that before he gave this instruction to Logic World any person who searched for Abel's address would continue to be directed to the page viewed by the Commission's officer on 14 April 1999 (unless presumably that user's own computer cache or server proxy showed an earlier page to the Abel 14 April format). Flood says that on 28 May 1999 he called Internet Names Australia (INA) to link the first respondent's website name to Logic World's site address. He says that:

"When doing this I overlooked the possibility that this instruction would cause the Draft Developmental Pages [ie the pages viewed by the Commission's officer on 9 and 11 June 1999] to become publicly accessible."

45 He says he was unaware that subsequent to giving that instruction to INA, these particular pages had become publicly accessible. He says it was only following a call from Ms Adams on 21 June 1999 in which he was advised that there appeared to be an unauthorised Abel website on display that he discovered that the draft developmental pages were publicly accessible. He says he immediately disabled the website completely. In doing this, he identified the site address attached to www.abel.com.au as the site address which he had arranged for Logic World to reserve for the Abel website. Flood says the appearance of the draft developmental pages on 9 and 11 June 1999 to the Commission officer took place without the knowledge or consent of the respondents and contrary to their instructions and due to an oversight by him.

46 What he seems to suggest had happened was that, in order to enable INA to comply with his instruction, it would have had to be given all of Abel's files, including those for the "old developmental pages", thereby making those pages publicly accessible, once INA complied with his instructions of 28 May 1999 to link the www.abel.com.au website name to the Logic World site address.

47 The second respondent, in an affidavit also filed and read by leave on the morning of the hearing, says that in the first week of April 1999, he spoke with Flood and told him to remove from public view Abel's existing website and replace it with a different page indicating that a new site was "under construction". He further says that at this time he instructed Flood to launch on the Abel website by way of an "under construction" page the page accessed by the Commission officer on 14 April 1999, ie, the one the Commission's solicitor's letter suggests complies with Order 4(b). He says he subsequently received Flood's confirmation that the old site had been removed and the new site, ie, the one visited by the Commission officer on 14 April 1999, put up. He says he was insistent in discussions he had with Flood between early April 1999 and the hearing to impress upon him and not to put any Abel website on public view without his express authority. He also says that the offending pages "were an old draft of the Abel Website, which has since been substantially amended. It was not ever authorised for public release by any of the Respondents or by any other person." He does not expressly say the old "draft" was never to his knowledge made public before June 1999. But that is the implication in his evidence.

48 Though I have difficulty in accepting all of what Flood says, I am not prepared, in the face of his untested and unchallenged evidence to find that the first respondent is guilty of contempt for breach of Order 4(b). Flood's third theory, on one view, raises the possibility that the appearance of the offending pages on the Abel website on 9 and 11 June 1999 was due to inadvertent actions by Flood for which the first respondent cannot be held responsible in his allocation of a new IP address which, in turn, may have made the old developmental pages once again accessible to the public.

49 There will be declarations that both respondents are guilty of contempt as alleged in par 9 and par 10 of the Statement of Charge. The Commission's motion in contempt will otherwise be dismissed.

50 I will hear the parties on penalty on a date to be fixed. Costs are reserved until then.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 12 April 2000

Counsel for the Applicant:	Miss E Ford
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr D Smith
Solicitor for the Respondent:	Morgan Conley Solicitors
Date of Hearing:	24 June 1999
Date of Judgment:	12 April 2000