Bruder Expedition Pty Ltd v Leigh [2020] QCA 67

[2020] QCA 67 COURT OF APPEAL SOFRONOFF P Appeal No 371 of 2020 DC No 2380 of 2019 BRUDER EXPEDITION PTY LTD Respondent/Applicant ACN 603 551 579 v TRACY LEIGH Appellant/Respondent BRISBANE WEDNESDAY, 8 APRIL 2020 JUDGMENT SOFRONOFF P: After a jury trial in October 2019, the appellant was found liable for publishing injurious falsehoods about the respondent’s caravans which it produces and sells. The respondent, as the successful plaintiff in the case, sought and obtained injunctions to restrain the appellant from republishing the statements. The order containing the injunction was made on 1 November 2019, and the injunction was expressed relevantly as follows: “The respondent be restrained by herself or her servants or agents from publishing or causing to be published … any statements … with respect to the applicant and the products sold by it… to the same effect as the first, second, third and fourth statements referred to in the second further amended statement of claim filed on 28 October 2019 in these proceedings, or matters substantially to the same effect as those matters.” It is not clear to me whether that order was only pronounced, whether it was taken out, whether the appellant was present when it was made or whether, if it had been taken out, the order was -- 1 of 5 -- 2 ever served upon her or her solicitors. These omissions of information before me may not matter. On 3 November 2019, two days after Judge Sheridan made her orders, a publication appeared on Facebook which was attributed to the appellant. It said, relevantly: “It is a massive lie because in conjunction with the very sexy marketing videos, it gave them so much credibility that they did not deserve because one element in the patent application, the weld point in the air bag attachment component, was weak and failed, and this happened not once but twice. And they redesigned that component not once but twice, and well before the weld failure in Charlie Coles’ caravan. And to make matters even worse, in spite of knowing of the first and original weld failure in May 2018, they didn’t tell anyone. They just quietly redesigned that component and put it into production. Then, when owners that had the weak and poorly designed weld attachment brought their caravans in for servicing, it was very quietly rectified without telling them or anyone else.” The respondent applied for the appellant’s committal for contempt on 12 December 2019. Judge Clare found that the appellant was in contempt of Judge Sheridan’s orders by publishing the post on Facebook and made a community service order by way of penalty. On 9 January 2020 the appellant filed an appeal against Judge Clare’s orders. She relies upon four grounds of appeal, but they can be summarised as follows. First, the learned judge applied the wrong test to determine whether the order that was said to have been breached was sufficiently clear. Second, there was no evidence that the appellant had had notice of the order. Third, the order was expressed in terms that in order to be understood it required reference to another document that was not attached to the order. Fourth, the order was ambiguous. Finally, there was a breach of the rules of procedural fairness in allowing the respondent to amend its application during the hearing. The appeal against the judgments arising out of the jury verdicts is to be heard on 6 May 2020, and it is to be followed by a hearing of the appeal against the finding of contempt. The respondent to both appeals sought and obtained from the appellant security for costs of the first appeal in the sum of $30,000. The respondent now seeks security for the costs of the appeal -- 2 of 5 -- 3 against the finding of contempt of court. It seems to me that the following factors are relevant to the exercise of the discretion to make the order which the respondent seeks. The appellant has an arguable case about the clarity of the order. It is not usual for a description of the thing to be forbidden by an order to be contained not on the face of the order itself but in some other document to which reference must be had. Judge Clare found, as an inference from the circumstances, that the appellant knew the content of the order and understood the terms of the order. There was also evidence from the appellant’s own statement that she knew that much. That may be sufficient in point of proof having regard to the fact that the order was made immediately after a trial at which the statements in question were being agitated before a jury. However, knowledge of the content of the order alone might be insufficient if, as the appellant contends, the terms of the order were unclear. Forensically, the appellant may be assisted by the fact that the order was subsequently varied so that it referred expressly to the kinds of statement that the appellant was restrained from making. In any case, at this stage it cannot be said that the appellant’s case is hopeless. Mr Martin QC who appears for the applicant today submits that the case is a poor one, and Mr Trewavas submits that the case is better than that. I am prepared to proceed upon the basis that the case is an arguable one, and that there are some prospects of success. Second, the appellant submits that the respondent, who is the applicant for security to costs, has been guilty of delay in bringing this application. There has been some delay. The appeal was commenced on 9 January 2020. There was a callover of matters on 5 February 2020 when the substantive appeal and this appeal were both set down for hearing. The preparation of the appeal record is underway or complete, and both the appellant and the respondent have now filed their outlines of submissions. The appellant points out that the respondent had foreshadowed on 20 January 2020 that it intended to make an application for security for costs. The appellant points out that after that date its outline of argument was delivered, and the respondent followed suit. However, in response to the respondent’s solicitor’s demand for security for costs, the appellant’s solicitor’s -- 3 of 5 -- 4 pointed out that an amended notice of appeal was to be filed, and that it would be premature to bring any application for security for costs until the strength of the appellant’s case could be gauged. It was said that that could not be done until the amended notice of appeal had been filed and delivered. The respondent’s solicitors acquiesced to that course, and they acted promptly after the delivery of the amended notice of appeal to bring on this application. In my view, delay is not a factor. The appellant submits that she is impecunious. This is a matter of common ground. There is, therefore, some risk that an order that she should furnish security would prevent her from prosecuting this appeal. I will return to that matter later. It is relevant that this is an appeal against a finding of guilt. The proceeding is civil in form but it is criminal in substance. See Witham v Holloway (1995) 183 CLR 525. For this reason, for example, it has been held in this court that an applicant in a contempt proceeding has no right to appeal against the dismissal of the application. In substance that is because such an appeal would be an appeal against a finding of not guilty of a criminal charge, and as a matter of principle, in the absence of statutory provision for such an appeal, there can be no appeal against a finding of not guilty. See Henderson v Taylor [2007] 2 Qd R 269. Costs are not a common feature in criminal matters, but Uniform Civil Procedure Rules 1999 (Qld) rule 932 confers express power to make costs orders in contempt proceedings. That is understandable, because contempt proceedings are usually proceedings between parties who are otherwise engaged in civil litigation, and a successful party engaged in such litigation ought to generally recover its costs. When that party has, by getting an order involving a finding of contempt, that party has succeeded in vindicating not only its own interests but in vindicating the authority of the court. It would therefore require something exceptional to compel it to bear the costs of that effort by itself. The public has an interest in the fulfilment of such proceedings, and applicants in such cases should not be discouraged from bringing just proceedings for contempt by adverse costs orders. -- 4 of 5 -- 5 If the respondent wins this appeal in the ordinary course it will get an order that the appellant pay its costs. Nevertheless, an application for security of the costs of an appeal by a person who has been found guilty of contempt of court is a different matter. There is a public interest in ensuring that an appellant’s lack of money should generally not prevent a challenge to a finding of guilt that has led to a punishment being imposed under the Penalties and Sentences Act 1992 (Qld) from being heard and determined. There are no costs ordered in ordinary criminal appeals because there is a public interest in ensuring that convictions are sound, and costs orders might stifle criminal appeals. In a case like this one, there should be a good reason to make an order for the provision of security for the respondent’s costs of the appeal before an order is made that would stifle the appellant’s prosecution of an appeal to challenge a finding of guilt. The risk that a successful applicant below, who is a respondent to the appeal, might have to bear the costs of the appeal because of the contemnor’s lack of money would generally be insufficient. However, in this case while it is common ground that the appellant is impecunious, it is not clear what that means in the context of an application for security for costs. The appellant was able to furnish security in the sum of $30,000 when security was asked for in relation to her first appeal. She has not provided any evidence on this application that she cannot furnish security in any amount at all in this appeal. No adjournment was sought to enable her to do so, even after this issue was raised during the hearing of argument on this application. In those circumstances, having regard to the state of the evidence, I am not satisfied that an order for security would in fact prevent the appellant from prosecuting her appeal. The respondent’s solicitor has given evidence that further costs in the sum of about $63,000 would be incurred in prosecuting the respondent’s case. That figure may turn out to be too high if the appeal is heard on the heels of the appeal against the orders made in the primary trial. It is the general practice in any case to reduce the proven actual anticipated costs on applications such as this. I will, therefore, order that the appellant give security to the respondent’s costs of the appeal in the sum of $30,000. -- 5 of 5 --