Commissioner for Fair Trading v Partridge [2006] NSWSC 478 (31 May 2006)

Last Updated: 1 June 2006

NEW SOUTH WALES SUPREME COURT



CITATION: Commissioner for Fair Trading v Partridge [2006] NSWSC 478







CURRENT JURISDICTION:



FILE NUMBER(S): 14158/05



HEARING DATE{S): 22/5/06



DECISION DATE: 31/05/2006



PARTIES:

Commissioner for Fair Trading (Plaintiff)

Michael Anthony Partridge (Defendant)



JUDGMENT OF: Bell J



LOWER COURT JURISDICTION: Not Applicable



LOWER COURT FILE NUMBER(S): Not Applicable



LOWER COURT JUDICIAL OFFICER: Not Applicable



COUNSEL:

P. Griffin (Plaintiff)

D. Bannerman (Sol) (Defendant)



SOLICITORS:

D. Catt (Solicitor) (Plaintiff)

D. Bannerman (Solicitor) (Defendant)





CATCHWORDS:





ACTS CITED:

Crimes (Sentencing Procedure) Act 1999

Home Building Act 1989



DECISION:

Convicted of the contempt charged in count 1 and in respect of this offence directed to perform community service work for a period of 150 hours

Convicted of the contempt charged in count 2 and directed to enter into a good behaviour bond for a term of 12 months. It is a condition of the bond that the offender will appear before the Court if called on to do so at any time during the term of the bond and that he be of good behaviour during the term of the bond.





JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION







BELL J





Wednesday 31 May 2006





14158/05 Commissioner for Fair Trading v Michael Anthony Partridge





JUDGMENT



1 BELL J: On 22 May 2005 the offender, Michael Anthony Partridge, pleaded guilty to two charges brought by the Commissioner for Fair Trading (the Commissioner) in the following terms:



1. That between 27 September and 14 October 2005 he knowingly breached order number 5 made by this Court on 26 September 2005 in proceedings 14158 of 2005, in that he did, through a contractor, contract for, and do, building consultancy work as defined in section 3 of the Home Building Act 1989; and



2. That between 26 and 27 September 2005 he knowingly breached order number 6 made by this Court on 26 September 2005 in proceedings 14158 of 2005, in that he failed to close and remove from the World Wide Web, his website with the address www.building-inspections.au.com by 9:00 am on 27 September 2005.



2 The first charge was particularised as the offender’s conduct in engaging Alpha Building Services Pty Limited to undertake building inspections of six residential properties on condition that Alpha Building Services Pty Limited paid to him a portion of the fee charged to the consumer who requested the inspection.



3 The proceedings were commenced by notice of motion filed on 11 November 2005.



4 The background to the proceedings may be shortly stated. The Commissioner commenced proceedings against the offender seeking orders pursuant to s 138 of the Home Building Act 1989 (the HBA) that he be restrained from performing building consultancy and other related work by reason that he was not licensed under Pt 3 of the HBA to carry out such work.



5 The summons came before Hoeben J on 28 September 2005. The offender appeared for himself on that occasion and sought an adjournment to enable him to properly prepare his case. The Commissioner did not object to the proceedings being adjourned for this purpose, but raised a concern that the offender was continuing to act and work as a building consultant, although he was unlicensed.



6 In his judgment of 28 September 2005 Hoeben J said:



[17] It seems to me that the provisions of the HBA are quite clear. It is illegal to work as a building consultant without a license. The defendant was not prepared to give an undertaking that he would not work as a building consultant as a condition of being allowed until the middle of November to prepare a defence to the claim brought by the plaintiff.



[18] It was clearly unfair to force the defendant to deal with the substantive claim 12 days after service of the originating documents on him particularly when his ability to do so had been to some extent compromised by the execution of a search warrant and the removal of some documents.



[19] On the other hand, the Court cannot countenance nor in any way give its approval to the defendant continuing to work as a building consultant when he is not licensed in contravention of the clear provisions of the HBA. In view of the frank admission on the part of the defendant that he is not licensed and will continue to be unlicensed for the foreseeable future, the Court has no alternative but to grant the restraining orders sought by the plaintiff on an interim basis until the substantive proceedings are decided.



7 Hoeben J stood the proceedings over to the call-up on 11 November 2005 for the allocation of a hearing date. His Honour made a number of orders, including:



(5) Until further order, an order pursuant to s 138 of the Home Building Act 1989 (the HBA) that the defendant from 5:00 pm 26 September 2005, whilst not being the holder of a licence under Part 3 HBA be restrained, whether personally, in partnership, through a corporate structure, through the agency of another or through an employee, contractor or otherwise from:



(i) doing building consultancy work as defined in s 3 the HBA (the Work);



(ii) contracting with any other person or entity to do the Work; and



(iii) representing, by advertisement or otherwise, that he is prepared to do the Work.



(6) An order pursuant to s 138 of the HBA that the defendant be required to close, and remove from the world wide web, his website with the address www.building-inspections.au.com by 9:00 am on Tuesday 27 September 2005.



8 Dale Vaughan Kennedy is a licensed building consultant operating under the company name of Alpha Building Services Pty Limited. In an affidavit sworn on 21 October 2005 Mr Kennedy states that on or around 27 September, 2005 he received a telephone call from the offender in which the latter gave an account that his shoulder was giving him trouble and that he was going to have to give his inspection work away. In the course of this telephone conversation Mr Kennedy states the offender asked him if he could do some inspections for him. He asked Mr Kennedy for payment of $100 or $110, including GST, for each job that he gave to him. Mr Kennedy says that he agreed to this arrangement. He sets out in his affidavit the details of the six inspections that he carried out on instructions from the offender in the period between 28 September and 14 October 2005.



9 Andrew Kempe is the General Manager of a company trading as Solutions First, which designs and hosts websites on the world wide web. In an affidavit sworn on 21 October 2005 Mr Kempe states that his company had a contract with the offender commencing in February 2004 to host his webpage and to carry out minor updates for him when required. The website was located at www.building-inspections.au.com. Mr Kempe states that on 27 September 2005 the offender contacted him by telephone and that the following conversation took place:



He said: “Andy, it’s Michael Partridge here. I rang your office earlier today. I want some changes made to my website”.



I said: “What changes do you want to make?”



He said: “Can you change the domain name to www.buildinginspections.au.com by removing the hyphen and can you register the site in my wife’s name and not mine? I want you to change the website content by removing the name Michael Partridge as the building inspector as well.”



I said: “Yes, not a problem. I’ll get the guys onto it as soon as possible.”



He said: “Great, thank you”.



10 Thereafter Mr Kempe was contacted by Mr Bruinenberg, a building investigator with the Office of Fair Trading. As the result of this conversation he became aware of the orders made by the Court. He contacted the offender by telephone and the following conversation took place:



I said: “Mr Partridge, it’s Andy here from Solutions First.”



He said: “Yes, Andy.”



I said: “Michael, we can’t carry out the changes to your website as you have instructed as I’m under the impression that it’s illegal for you to continue to carry out your business. I have spoken to the Department of Fair Trading and they have advised me that there are court orders against you. I believe what you have requested from me may be in fact illegal and I don’t want my company involved in anything illegal.”



He said: “Who have you been talking to?”



I said: “John Bruinenberg.”



He said: “Well, I can assure you that is not the case. I will not be carrying out the business. It will be my wife and I’ll be passing the work onto sub contractors.”



I said: “It would really help me if you could supply me with something in writing to that effect.”



He said: “I’ll do that as soon as possible and fax it to you.”



I said: “Okay.”



11 Annexed to Mr Kempe’s affidavit is a letter written by the offender on 27 September 2005, in these terms:



Further to our telephone conversation I wish to advise instructions to close the existing domain in the name of Michael Partridge and open a new domain in the name of Pamela Partridge with the internet address “buildinginspections.au.com.”



One other alteration is to delete reference to Michael Partridge as being the building inspector.



I advise that this wholly complies with the law pursuant to the Department of Fair Trading.



12 Mr Kempe had further discussions with Mr Bruinenberg and thereafter he telephoned the offender and advised him that he was no longer willing to host his website. Mr Kempe then instructed his technical staff to remove the website and he arranged for a copy of the content of it to be forwarded to the offender on CD-ROM.



13 The offender is aged sixty-nine years. He and his wife have been married for the past thirty-eight years. There are three adult sons of the marriage. After completing the Leaving Certificate the offender completed a carpentry and joinery trades certificate course at the Gore Hill Technical College. He was apprenticed as a carpenter and joiner. After obtaining his trade qualifications he worked in the building industry for about five years and then commenced his own building business. Around 1989 he started doing building inspections and reports. From 1997 he concentrated exclusively on his inspection business. He estimates that over the years he carried out between fifteen thousand and sixteen thousand inspections.



14 The offender is an undischarged bankrupt, having been declared bankrupt on the petition of a judgment creditor.



15 In an affidavit affirmed on 8 May 2006 the offender states that he is taking medication for high blood pressure. On 30 November 2005 he underwent surgery to replace both knees. He says that he still has difficulty walking and is suffering a lot of discomfort. Since his knee replacements he says that it is impossible for him to crawl under buildings and into the roof cavities of buildings in order to do building reports. He is now retired.



16 A pre-sentence report prepared by Mr McDonald of the Chatswood District Office records the offender has been assessed as suitable for a community service order for the purposes of s 86(1) of the Crimes (Sentencing Procedure) Act 1999 (the Act) and that he has signed an undertaking as required by subs (1)(e). The author notes that the offender produced a medical certificate indicating his fitness to perform light duties only. The offender has been assessed as suitable for a periodic detention order.



17 Mr McDonald sets out the offender’s account of the circumstances that led to his conviction. These include his assertion that he has been the subject of a vendetta orchestrated by the Department of Fair Trading to prevent him working in the field of building consultancy. He and his wife gave an account that his inability to practice as a building consultant, and his conviction, had occasioned significant cost to them emotionally, socially and financially. Mr McDonald notes that aside from the personal cost to the offender and his wife, Mr Partridge had not expressed any admission of wrongdoing.



18 The offender gave evidence. Some cross-examination was directed to the hearings before the Consumer Trader and Tenancy Tribunal, which had resulted in judgments against him. These, as I understand it, had been causative of the determination not to renew his license under the HBA. The offender offered a number of reasons in support of his view that on each occasion the Tribunal had arrived at the wrong decision. He was critical of the Department of Fair Trading, asserting that it had failed to adhere to its legal obligations with respect to the timing of the licence determination. He volunteered his view that there were many people within the Department who had been very derelict in the discharge of their duties.



19 In re-examination the offender’s attention was directed to Mr McDonald’s observations concerning his absence of remorse. He readily acknowledged his awareness that he had broken the Court’s order. He explained the reason for this as being that it was of the utmost importance to him to maintain his business on foot because he was in the process of selling it to Dale Kennedy. He impressed me as an individual obsessed with the rightness of his cause, who had little compunction in ignoring the order of the Court.



20 On the offender’s behalf, it was noted that since November 2005, when he underwent surgery, he is no longer capable of carrying out building consultancy services of the type that he had previously engaged in. Wrong as it had been to breach the orders of the Court it was submitted that he had nonetheless retained a qualified building consultant to prepare the inspection reports and in this respect the consumers had not been put at risk.



21 The Commissioner drew my attention to a number of decisions involving the sentencing of offenders for contempt of orders made by the Court on the Commissioner’s application. I take those decisions into account as illustrative of the range of sentences imposed for contempt of orders made by the Court for the protection of consumers. It remains that each case must be decided by reference to its own facts.



22 I have considered the statement of the matters to be taken into account in sentencing for contempt which were enunciated by Dunford J in Wood v Staunton (No. 5) (1996) 86 A Crim R 183 at 185 and relied upon by Studdert J in Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527; (2001) 125 A Crim R 473;. Some of these considerations are of particular relevance in the context of a contempt involving interference with the administration of criminal justice. Others are of general application and include:



(i) The seriousness of the contempt proved;



(ii) whether the contemnor was aware of the consequences to himself of what he did;



(iii) the reason for the contempt;



(iv) whether there has been any apology or public expression of contrition;



(v) general and personal deterrence;



(vi) denunciation of the contempt;



(vii) the character and antecedents of the contemnor.



23 These considerations are now to be viewed in the context of the provisions of s 3A and s 21A of the Sentencing Procedure Act 1999 (the Act). The latter provision obliges the court to take into account both the aggravating factors set out in subs (2) and the mitigating factors set out in subs (3) that are relevant and known to the court. It is necessary to have regard to any other objective or subjective factor that affects the relative seriousness of the offence.



24 In the Commissioner’s submission the offence charged in the second count was to be viewed as of lesser objective seriousness than that charged in the first count. I accept that is so. The contempt constituted by the breach of order 5 was a deliberate defiance of the order of the Court, which was framed for the protection of consumers. I accept that there is no evidence that consumers were in fact prejudiced by the offender’s conduct. I am also mindful that these are not contempt offences involving inference with the administration of criminal justice. Nonetheless the deliberate defiance of the order of the Court remains a serious offence. Given the offender’s age and retirement following the recent surgery I do not consider that personal deterrence needs to be reflected in the sentences to be imposed in this case.



25 Counsel for the Commissioner submitted that notwithstanding a number of mitigating circumstances the Court would give consideration to imposing a term of imprisonment, which might be served by way of periodic detention.



26 Section 5(1) mandates that a sentence of imprisonment not be imposed upon an offender unless the court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. It is not open to the Court to consider the imposition of sentence that is to be served by way of periodic detention before the Court has come to that view and before the court has set the term of the sentence in accordance with s 44: R v Zamagias [2002] NSWCCA 17.



27 Section 5(2) requires that a court sentencing an offender to imprisonment for six months or less must indicate to the offender, and make a record of, its reasons for doing so, including its reasons for deciding that no penalty other than imprisonment is appropriate.



28 I have taken into account the factors to which s 21A of the Act directs attention. I do not take into account any aggravating factor under subsection (2). I take into account in mitigation of the offence the offender’s good character, my opinion that he is unlikely to re-offend and his plea of guilty.



29 I have concluded that the offence is one that warrants imprisonment but in light of the considerations to which I have referred I am not of the view that no penalty other than imprisonment is appropriate for the purposes of s 5(1) of the Act. The offender has been assessed as suitable for a community service order. I am conscious that there are limited community work positions available for persons able to perform light duties only and this may pose difficulties in assigning the offender to an appropriate location nonetheless, in light of the assessment of his suitability for an order, I have determined that is the appropriate disposition with respect to the first charge. In relation to the second charge, I propose to make an order directing the offender to enter into a good behaviour bond under s 9 of the Act.



ORDERS



1. Michael Anthony Partridge you are convicted of the contempt charged in count 1 and in respect of this offence I direct that you are to perform community service work for 150 hours;



2. You are convicted of the contempt charged in count 2 and I direct that you enter into a bond for a term of 12 months. It is a condition of the bond that you will appear before the Court if called on to do so at any time during the term of the bond and that you will be of good behaviour during the term of the bond.





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LAST UPDATED: 01/06/2006