FEDERAL COURT OF AUSTRALIA

Jorgensen v Fair Work Ombudsman [2019] FCAFC 113

Appeal from: Fair Work Ombudsman v Jorgensen (No. 2) [2018] FCCA 1202 File number: QUD 314 of 2018 Judges: GREENWOOD, REEVES AND WIGNEY JJ Date of judgment: 8 July 2019 Catchwords: CONTEMPT OF COURT – appeal from orders made by primary judge on conviction and sentences of imprisonment – where appellant had been found guilty of contempt of freezing orders – where appellant third party to freezing orders – where appeal allowed in part – declarations set aside – matter remitted to the Federal Circuit Court of Australia for retrial Legislation: Evidence Act 1995 (Cth) ss 69, 136 Fair Work Act 2009 (Cth) s 716(5) Federal Circuit Court of Australia Act 1999 (Cth) s 17 Federal Court of Australia Act 1976 (Cth) s 28(1)(f) Federal Circuit Court Rules 2001 (Cth) r 19.02(1) Cases cited: Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2016] NSWSC 1309 Australian Competition and Consumer Commission v World Netsafe Pty Limited (No 3) [2003] FCA 159; 127 FCR 542 Australian Securities and Investments Commission v Sigalla (No 3) [2010] NSWSC 1076 Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380 CCOM Pty Ltd v Jiejing Pty Limited [1992] FCA 325; 36 FCR 524 Clampett v Attorney-General (Cth) [2009] FCAFC 151; 181 FCR 473 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 Denknis v Commonwealth Bank of Australia [2018] FCA 1908 Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738 Galea v Galea (1990) 19 NSWLR 263 Goodwin v Commissioner of Police [2012] NSWCA 379 Huda & Huda & Latham [2018] FamCAFC 85 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Jones v National Coal Board [1957] 2 QB 55 Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; 256 FCR 90 Kuru v New South Wales [2008] HCA 26; 236 CLR 1 Lockwood v Police (2010) 107 SASR 237 Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16 Michael Wilson and Partners Limited v John Forster Emmott [2015] EWCA Civ 1028; [2015] All ER (D) 160 Michel v R [2009] UKPC 41; [2010] 1 WLR 879 OKS v Western Australia [2019] HCA 10; 93 ALJR 438 R v T, WA [2014] SASCFC 3; 118 SASR 382 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; 332 ALR 128 RPS v The Queen [2000] HCA 3; 199 CLR 620 Seaward v Paterson [1897] 1 Ch 545 Sigalla v TZ Limited [2011] NSWCA 334 Sullivan v Trilogy Funds Management Ltd [2017] FCAFC 153; 255 FCR 503 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 Vakauta v Kelly [1989] HCA 44; 167 CLR 568 Weiss v The Queen [2005] HCA 81; 224 CLR 300 Wilde v R (1988) 164 CLR 365 Windoval Pty Limited v Donnelly [2014] FCAFC 127; 226 FCR 89 Yuill v Yuill [1945] 1 All ER 183 Zhu v Treasurer of the State of New South Wales [2004] HCA 56; 218 CLR 530 Date of hearing: 16 July 2018 Registry: Queensland Division: General Division National Practice Area: Federal Crime and related proceedings Category: Catchwords Number of paragraphs: 243 Counsel for the Appellant: Mr S C Holt QC with Ms K W Gover Solicitor for the Appellant: Lillas & Loel Lawyers Counsel for the Respondent: Ms E S Wilson QC with Mr M McKechnie Solicitor for the Respondent: Ashurst Australia

ORDERS

QUD 314 of 2018 BETWEEN: LEIGH ALAN JORGENSEN Appellant AND: FAIR WORK OMBUDSMAN Respondent

JUDGES: GREENWOOD, REEVES AND WIGNEY JJ DATE OF ORDER: 8 JULY 2019

COURT ORDERS THAT:

1. The appeal be allowed in part.

2. The Declarations made by Judge Vasta on 3 May 2018 be set aside.

3. Order 1 of the orders made on 10 May 2019 by Judge Vasta be set aside.

4. The matter be remitted to the Federal Circuit Court of Australia for retrial pursuant to s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth), such retrial to be heard by a judge other than Judge Vasta.

5. The cross-appeal filed by the respondent on 30 May 2018 be dismissed.

6. The respondent pay the appellant’s costs of the appeal and first instance proceedings as agreed or taxed.

7. The appellant be released from the undertakings he gave to the Court on 11 May 2018.

8. The appellant’s passport be returned to him upon request.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from orders made in the Federal Circuit Court of Australia which had the effect of convicting the appellant, Mr Leigh Jorgensen, of contempt of court and sentencing him to a period of imprisonment.

2 At the time of the events in question, Mr Jorgensen operated a business which sold tours and adventure activities in Far North Queensland. He appears to have operated that business through a number of different entities and in a fairly disorganised and haphazard way, at least in an administrative and financial sense. He also appears at times to have underpaid his employees. The latter feature of the business brought Mr Jorgensen and at least one of the entities through which he conducted the business, A.C.N. 156 455 828 Pty Limited, trading as Trek North Tours, to the attention of the respondent to this appeal, the Fair Work Ombudsman. The company A.C.N. 156 455 828 Pty Limited is referred to throughout this judgment as 828 Pty Limited to avoid confusion which would otherwise arise because Mr Jorgensen and other companies associated with him also used the trading name Trek North Tours.

3 In late 2014, the Ombudsman commenced proceedings in the Circuit Court against 828 Pty Limited and Mr Jorgensen alleging that 828 Pty Limited had contravened s 716(5) of the Fair Work Act 2009 (Cth) because it had failed to comply with compliance notices issued under that subsection. The compliance notices required 828 Pty Limited to pay a total of $29,956.75 representing the outstanding wages and entitlements of three of its employees. The Ombudsman also alleged that Mr Jorgensen was involved in the contraventions by 828 Pty Limited. Judgment was entered against both 828 Pty Limited and Mr Jorgensen in June 2015. 828 Pty Limited was ordered to pay a pecuniary penalty of $55,000 and to comply with the compliance notices. Mr Jorgensen was ordered to pay a pecuniary penalty of $12,000.

4 That was by no means the end of the matter. On 24 July 2015, the Ombudsman sought and obtained ex parte freezing orders in the Circuit Court which had the effect of restraining 828 Pty Limited from disposing of or dealing with any of its assets other than in certain specified circumstances. The freezing orders were extended on 30 July 2015. The purpose of the freezing orders was no doubt to prevent 828 Pty Limited from frustrating the enforcement of the judgment that had been obtained against it. The assets of 828 Pty Limited were defined in the orders as including “where applicable” money held in certain specified bank accounts. The specified circumstances in which 828 Pty Limited was permitted to deal with or dispose of its assets included, relevantly, where the dealing or disposal was “in the ordinary and proper course of [its] business”. The orders, including a penal notice which warned of the repercussions of any disobedience of the orders, were served on Mr Jorgensen in his capacity as the “proper officer” of 828 Pty Limited.

5 In October 2017, the Ombudsman commenced proceedings against Mr Jorgensen in the Circuit Court alleging that he was in contempt of court. The Ombudsman alleged that Mr Jorgensen caused 828 Pty Limited to breach the freezing orders in early to mid-August 2017 by causing funds to be transferred on nine occasions from two bank accounts which were referred to in the freezing orders. It would also appear that at the hearing of the contempt charges the Ombudsman contended that, in causing Trek North Tours to make the transfers which were said to breach the freezing orders, Mr Jorgensen knowingly impeded the administration of justice.

6 After a four day hearing in late April and early May 2018, the primary judge in the Circuit Court convicted Mr Jorgensen of nine counts of contempt of court. On 10 May 2018, the primary judge sentenced Mr Jorgensen to imprisonment for 12 months, but ordered that he be released on 20 May 2018 if he paid a sum of money to the Ombudsman which represented the amount that 828 Pty Limited had initially been ordered to pay the Ombudsman in the underlying proceeding. His Honour declined to make any costs order.

7 Mr Jorgensen appealed both his conviction and the sentence imposed on him by the primary judge. The Ombudsman cross-appealed the primary judge’s refusal to make a costs order.

8 Mr Jorgensen’s conviction appeal raises three issues. The first is whether Mr Jorgensen was denied procedural fairness during his trial in the Circuit Court by reason of the primary judge’s excessive and inappropriate interventions during the course of his evidence. The second is whether the primary judge misdirected himself in relation to the proper interpretation of the “ordinary and proper course of business” exception in the freezing orders and the relevant mental element of the contempt charges which had been brought against Mr Jorgensen. The third issue concerns the primary judge’s use of a particular documentary exhibit in making what, at least on his Honour’s view of the contempt charges, was an important finding against Mr Jorgensen.

Relevant principles – contempt arising from breach of court orders

9 The Full Court in Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; 256 FCR 90 at [26] cited with approval the following passage from Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16 at [9], in which Finn J summarised the principles which apply where the alleged contempt concerns the breach of a court order and the alleged contemnor is a party bound by the relevant order:

… First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 515-516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40]. Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 at [19]. Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 at [6]. Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534.

(Emphasis in original).

10 Thus, where the alleged contemnor is a party specifically bound by the order, it is not necessary to prove that they intended to disobey the order. Rather, deliberate conduct in breach of the order will be taken to constitute “wilful disobedience” of the order unless the conduct is “casual, accidental or unintentional”.

11 The position is, however, different where the alleged contemnor is not a party bound by the court order. That will include the situation where the party bound by the order is a company and the alleged contemnor is a director of the company. In such a case, the alleged contemnor is only liable for contempt if it is proved, beyond reasonable doubt, that they knowingly aided, abetted, counselled or procured the breach of the order: Seaward v Paterson [1897] 1 Ch 545 at 555; ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 255, 266; Australian Competition and Consumer Commission v World Netsafe Pty Limited (No 3) [2003] FCA 159; 127 FCR 542 at [86]; Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380 at [30]. In such circumstances, the alleged contemnor is not liable as an accessory, but rather is directly liable for an independent contempt committed by themselves in obstructing the course of justice: Zhu v Treasurer of the State of New South Wales [2004] HCA 56; 218 CLR 530 at [121].

12 A third party not bound by the court order will only be liable for contempt if they not only know of the order, but also engage in conduct which is intended to frustrate, thwart or subvert the purpose of the order. In CCOM Pty Ltd v Jiejing Pty Limited [1992] FCA 325; 36 FCR 524 at 530-531, Drummond J referred to the liability of a party not bound by the order in the following terms:

Mr McCullagh however is not a party to the action and is not bound by the undertaking. Such a person is not subject to the strict liability in contempt which rests upon a person bound by an undertaking that is breached. However a person who is not in terms bound by an undertaking but who knows of it and who then does something which disrupts the situation created by the undertaking may, but not necessarily must, be guilty of contempt of court.

Such a person will be guilty of contempt where his conduct, coupled with his knowledge of the undertaking, shows that he is flouting the authority of the court by doing something which he knows will prevent the undertaking given to the court achieving its intended object. Such a person will be in contempt, because he has “knowingly impeded or interfered with the administration of justice by the court in the action between A and B”: see Attorney-General v Times Newspapers Ltd (supra) (at 1003; 405), per Lord Brandon. See also Seaward v Paterson [1897] 1 Ch 545 at 555 and Z Ltd v A-Z and AA-LL [1982] QB 558 at 578.

In Attorney-General v Times Newspapers Ltd, Lord Oliver (at 1018-1019; 419), speaking of the circumstances in which a determination could be made that a stranger to a court order which had been breached was guilty of contempt, said:

“… a more dependable guide is to be found in the way in which the gravamen of the offence is expressed in the respondent’s case and which, I think, must be based upon the speeches in this House in Attorney-General v Leveller Magazine Ltd [1979] AC 440: ‘The publication … frustrates, thwarts, or subverts the purpose [and I interpolate that Lord Oliver emphasised that phrase] of the court’s order and thereby interferes with the due administration of justice in the particular action.’ ‘Purpose’, in this context, refers, of course, not to the litigant’s purpose in obtaining the order or in fighting the action but to the purpose which, in seeking to administer justice between the parties in the particular litigation of which it had become seized, the court was intending to fulfil.”

I think the statement by Lord Oliver most clearly identifies the features that must be present in the conduct of a stranger to an order of the court or an undertaking given to the court before he can be found guilty of contempt where the order or undertaking is breached.

13 Drummond J also held that a party not bound by the order will not be liable if they had an honest but mistaken belief as to the meaning or operation of the order which, if correct, would mean that their conduct could not amount to an interference with the operation of the order. His Honour said, in that regard (at 532):

And if a stranger, in fact, interferes with the operation of an undertaking given in an action between A and B, but does so in the honest but mistaken belief that the undertaking has a particular meaning which, if correct, would mean that his conduct could not be an interference with this operation, then there is equally a lack of the mens rea necessary to put him in contempt. This is so, in my view, no matter how unreasonable the stranger’s mistaken belief is, so long as it is a belief that is honestly held.

14 Those passages from the judgment of Drummond J in CCOM were referred to with approval in Sigalla v TZ Limited [2011] NSWCA 334 at [14]-[16], [28] (Macfarlan JA, Young JA and Handley AJA agreeing); see also Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2016] NSWSC 1309 at [23]-[27].

15 The critical point for the purposes of the present appeal is that, because Mr Jorgensen was not a party to or directly bound by the freezing order, the Ombudsman was required to prove that when Mr Jorgensen caused funds to be transferred from the frozen bank accounts, he knew that the transfers breached the freezing order. As will be seen, that in turn required the Ombudsman to prove, beyond reasonable doubt, not only that the transfers did not fall within the “ordinary and proper course of business” exception, but also that Mr Jorgensen knew that to be the case and did not honestly, but mistakenly, believe that the transfers fell within the exception.

16 Before addressing the grounds and contentions advanced by the parties in support of the conviction appeal, it is necessary to consider in more detail the terms of the freezing order, the terms of the contempt charge, the evidence which was before the primary judge and the primary judge’s reasons for finding that Mr Jorgensen was guilty of contempt.

The freezing order

17 It is important to emphasise that the freezing order made on 24 July 2015 (and extended on 30 July 2015) (the freezing order) was directed to or against 828 Pty Limited, not Mr Jorgensen. The freezing order did not directly restrain Mr Jorgensen from doing anything, though subpara 5(b) of the freezing order provided that “[i]f you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way”. Mr Jorgensen was the sole director of 828 Pty Limited.

18 The central operative subparagraph of the freezing order was subpara 6(a) which provided as follows:

You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia (‘Australian assets’) up to the unencumbered value of AUD $84,956.75 (‘the Relevant Amount’).

19 Subparagraph 7(1) of the freezing order defined what Trek North Tour’s assets were for the purposes of the freezing order. It was in the following terms:

(1) your assets include:

(a) all your assets, whether or not they are in your name and whether they are solely or co-owned;

(b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and

(c) the following assets in particular:

(i) the assets of your business A.C.N 156 455 828 PTY LTD TRADING AS TREK NORTH TOURS carried on from:

i. Unit 3, 87 Lake Street, Cairns, ii. 43 The Esplanade, Cairns, iii. 53-57 The Esplanade, Cairns, and iv. Shop 10, 93 The Esplanade, Cairns.

or, if any or all of the assets have been sold, the net proceeds of the sale; and

(ii) any money in any bank accounts held by A.C.N 156 455 828 PTY LTD TRADING AS TREK NORTH TOURS, including, where applicable, the following accounts:

a. Account Number 451643835 held with either Suncorp Bank, Commonwealth Bank or any other banking institution, b. Account Number 452798506 held with either Suncorp Bank, Commonwealth Bank or any other banking institution, and c. Account Number 452058391 held with either Suncorp Bank, Commonwealth Bank or any other banking institution.

20 The terms of subpara 7(1)(c)(ii) of the freezing order are somewhat curious. That is because, while the chapeau refers to money held in any bank accounts held by 828 Pty Limited, the three accounts then specified do not appear to have been accounts held in the name of 828 Pty Limited.

21 The first account, account number 451643835, was an account held at Suncorp Bank in the name of Yubnub Pty Ltd. This account will be referred to in these reasons as the Yubnub account. Mr Jorgensen was a director of Yubnub and a signatory for the Yubnub account.

22 The proceedings in the court below appeared to have been conducted on the basis that 828 Pty Limited was at all relevant times beneficially entitled to all of the funds in the Yubnub account and able to deal with them on that basis. It is not entirely clear why that was so. The evidence did suggest that that at least some of the income derived from the business of Trek North Tours was deposited into the Yubnub account, even though strictly speaking 828 Pty Limited, not Yubnub, owned or conducted the business. The evidence did not, however, appear to go so far as to suggest that all of the funds in the Yubnub account were at all times assets of 828 Pty Limited. Mr Jorgensen operated a number of different bank accounts in different names and appeared to deal with the funds in those accounts without any particular regard to which entity or business was entitled to them. The precise provenance of the funds in the Yubnub account at any given time was not the subject of any evidence or close analysis at the hearing of the contempt charges.

23 The second account, account number 452798506, was an account held at the Suncorp Bank in the name “Mr L A Jorgensen t/a Trek North Tours”. This account will be referred to in these reasons as the Jorgensen TNT account. It again appeared to be common ground that some of the revenue derived from the Trek North Tours business was deposited into this account. It was nevertheless an account held in Mr Jorgensen’s name, not in the name of 828 Pty Limited. Not surprisingly, Mr Jorgensen was a signatory for this account.

24 The third account, account number 452058391, was not the subject of any evidence or consideration at the hearing of the contempt charges. It was not an account from which any funds were relevantly transferred.

25 The other curiosity about subpara 7(1)(c)(ii) of the freezing order is that it includes the words “where applicable”. It is not entirely clear what those words mean in the context in which they are used in the freezing order. In its submissions on this appeal, the Ombudsman asserted that the words “where applicable” were superfluous. If that is the case, it is unclear why they were included in the freezing order. The better view would appear to be that the words “where applicable” were intended to operate so as to ensure that the funds in the three specified accounts were only considered to be an asset of 828 Pty Limited for the purposes of the freezing order if the funds were beneficially owned by 828 Pty Limited, or if 828 Pty Limited had the power to dispose of the funds as if they were its own. Ultimately, however, nothing of significance turned or turns on this issue. As already noted, the proceeding below appeared to be conducted on the basis that 828 Pty Limited had the power to dispose of the funds in the relevant accounts as if they were its own. Mr Jorgensen did not contend that the freezing order were in any respect unclear, ambiguous or incapable of compliance.

26 The other critical paragraph to consider is para 10, which specified certain exceptions to the operation of the freezing order. It was in the following terms:

This order does not prohibit you from:

(a) Paying the remuneration and employee entitlements of the First Respondent’s employees as required by law;

(b) Paying $15,000 for legal expenses;

(c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and

(d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation.

(Emphasis added.)

27 The terms of subpara 10(c) of the freezing order are particularly critical having regard to the issues that arose both before the primary judge and on appeal. The important point to note about that subparagraph is that the operative words are “in the ordinary and proper course of your business”. The dealing or disposition of assets in the “ordinary and proper course” of the business is said to include “paying business expenses bona fide and properly incurred”, but that is only one example of such a dealing or disposition. The exception is not limited to paying business expenses.

The contempt charge

28 Section 17 of the Federal Circuit Court of Australia Act 1999 (Cth) provides that the Circuit Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court. Rule 19.02(1) of the Federal Circuit Court Rules 2001 (Cth) provides that if it is alleged that a person has committed a contempt of Court (other than contempt in the face or hearing of the Court), an application may be made for the person to be dealt with for the contempt. Rule 19.02(2) provides, amongst other things, that an application must “state the contempt alleged”.

29 The application filed by the Ombudsman in the Circuit Court in relation to the alleged contempt by Mr Jorgensen was in some respects fairly unclear or uninformative in terms of stating the “contempt alleged”. The application sought the following declaration:

1. A declaration that the Respondent is in contempt of the Court;

(a) in that:

(i) on or about 4 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $2,330.00 from Suncorp Bank Business Everyday Account (BSB 484-799 Number 451643835) in the name of Yubnub Pty Ltd (Yubnub Account), being an account and moneys in respect of which ACN 156 455 828 Pty Ltd trading as Trek North Tours (Trek North Tours) had a beneficial interest, into the Suncorp Bank Access Equity Account (BSB 484-799 Number 503197972) held in the name of Leigh Alan Jorgensen/Leigh Jorgensen Family Trust (Family Trust Account);

(ii) on or about 6 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $8,001.00 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account;

(iii) on or about 9 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $9,996.95 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account;

(iv) on or about 9 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $4,558.00 from the Suncorp Bank Business Everyday Account (BSB 484-799 Number 452798506) in the name of Leigh Alan Jorgensen T/A Trek North Tours (Trek North Tours Account), being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account;

(v) on or about 10 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $2,569.00 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account;

(vi) on or about 11 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $4,621.00 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account;

(vii) on or about 12 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $4,713.64 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account;

(viii) on or about 13 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $1,255.97 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account; and

(ix) on or about 14 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $2,990.00 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account,

(b) in circumstances where:

(i) on 24 July 2015, Judge Jarrett made orders addressed to the Proper Officer of Trek North Tours in Federal Circuit Court Proceeding No BRG 1009 of 2014 (Order);

(ii) order 6 of the Order restrained Trek North Tours from removing from Australia or in any way disposing of, dealing with or diminishing the value of any assets which are in Australia up to an unencumbered value of AUD$84,956.75;

(iii) the Respondent was informed of the terms of the Order by email at about 4.21 pm on 24 July 2015 and was aware of the terms of the Order on or before 30 July 2015;

(iv) the Respondent appeared before Judge Jarrett upon the extension of the Order on 30 July 2015 (Extended Order);

(v) order 2 of the Extended Order varied the Order so that it had effect until further order;

(vi) the Respondent was informed of the terms of Extended Order during the hearing before Judge Jarrett on 30 July 2015 and the orders were subsequently emailed to him by Sarah Hedger on 27 August 2015; and

(vii) the withdrawals do not fall within the exceptions listed at paragraph 10 of the Order.

30 The application also sought an order that Mr Jorgensen “be punished or otherwise dealt with for the contempt”.

31 The grounds of the application were stated as being that Mr Jorgensen, “having knowledge of the Orders made by Judge Jarrett [the freezing orders], caused Trek North Tours [828 Pty Limited] to fail to comply with paragraph 6 of the Order”.

32 Insofar as it could be said that the application filed by the Ombudsman contained a statement of the “contempt alleged”, as required by r 19.02(2) of the Circuit Court Rules, the statement suggested that the alleged contempt was comprised of the following elements.

33 First, that the freezing order restrained 828 Pty Limited from dealing with or disposing of its assets.

34 Second, that Mr Jorgensen had knowledge of the freezing order.

35 Third, that 828 Pty Limited had a beneficial interest in the funds in the Yubnub and Jorgensen TNT accounts, or otherwise had the power to deal with or dispose of those funds as if they were its own.

36 Fourth, that Mr Jorgensen authorised and directed the electronic transfer of funds from the Yubnub and Jorgensen TNT accounts to an account held in the name of either Leigh Alan Jorgensen or Leigh Jorgensen Family Trust.

37 Fifth, that the “withdrawals” did not fall within the exceptions in paragraph 10 of the freezing order.

38 Sixth, that Mr Jorgensen thereby caused 828 Pty Limited to fail to comply with paragraph 6 of the freezing order.

39 The important point to emphasise at this juncture is that, while the Ombudsman alleged that Mr Jorgensen knew about the freezing order, it was not specifically alleged that Mr Jorgensen knew that the funds transfers that he authorised and directed breached the freezing order. Similarly, while the Ombudsman alleged that the transfers or withdrawals did not fall within the exception in paragraph 10(c) of the freezing order, it was not alleged that Mr Jorgensen knew that the transfers did not fall within that exception. Nor did the Ombudsman allege, in the application at least, that Mr Jorgensen knowingly impeded the administration of justice or knowingly aided and abetted 828 Pty Limited’s failure to comply with the freezing order.

The Ombudsman’s evidence and submissions in the Circuit Court

40 Rule 19.02(2)(c) of the Circuit Court Rules provides that an application which alleges that a person has committed a contempt must be “supported by an affidavit setting out the facts relied on”. The Ombudsman’s application was supported by an affidavit sworn by a lawyer employed in the Ombudsman’s office, Mr Samuel Prain. The Ombudsman subsequently filed and relied on another affidavit sworn by Mr Prain.

41 The first affidavit sworn by Mr Prain on 11 October 2017 was a lengthy affidavit which annexed a very large number of documents. Neither of the parties to this appeal took the Court to this affidavit or referred to any part of it in their submissions. That may perhaps have been because, as will be seen, the primary judge also did not expressly or directly refer to any part of this affidavit. The parties also did not include all of the annexures to Mr Prain’s first affidavit in the Appeal Book. In those circumstances, it is unnecessary to refer at length to the contents of Mr Prain’s affidavit or the annexures thereto. It suffices to make the following brief points.

42 First, Mr Prain’s first affidavit contained a detailed chronological account of the underlying proceeding commenced by the Ombudsman in relation to the alleged contraventions of the Fair Work Act by 828 Pty Limited and the making and service of the freezing order against that company. That chronological account was not contentious. There was no dispute that Mr Jorgensen was aware of the freezing order at the time he caused or directed the relevant funds transfers.

43 Second, Mr Prain’s first affidavit annexed a large bundle of bank statements which had been produced on subpoena by Suncorp Bank. The bundle included statements for a number of different bank accounts, including the Yubnub account, the Jorgensen TNT account and the account held in the name Leigh Alan Jorgensen or Leigh Jorgensen Family Trust. The latter account will be referred to in these reasons as the Family Trust account. As was noted earlier, the Ombudsman’s case was that the nine breaches of the freezing order all involved transfers of funds into the Family Trust account. There was no dispute that those funds transfers occurred or that Mr Jorgensen caused them to be made.

44 Third, Mr Prain referred in his first affidavit to an “enforcement hearing” in the Circuit Court. That hearing took place on 24 March 2016 and was said to be a hearing in accordance with r 29.11 of the Circuit Court Rules. That rule provides that a party may apply to the Circuit Court “to issue a writ, order or any other means of enforcement of a judgment or order”. Unfortunately, the enforcement summons was not included in the Appeal Book and there is no indication of exactly what orders had been applied for or were made pursuant to r 29.11. As a result, it is not known exactly what “writ, order or any other means of enforcement” the Ombudsman had applied for. It is also not entirely clear what the so-called enforcement hearing specifically involved, though it appears from the transcript of the enforcement hearing that Mr Jorgensen had been required to attend court for examination about the financial affairs of 828 Pty Limited. Nor, indeed, is it entirely clear exactly what judgment or order the Ombudsman was seeking to enforce, though it may fairly be assumed that it was the judgment which ordered 828 Pty Limited to pay the amounts which were the subject of the compliance notices.

45 In any event, it would appear that Mr Jorgensen was examined by the Ombudsman’s counsel at the enforcement hearing. Mr Prain’s first affidavit annexed a transcript of the enforcement hearing held on 24 March 2016, including Mr Jorgensen’s evidence. It would also appear that Mr Jorgensen produced a number of documents to the Circuit Court during the enforcement hearing. Mr Prain’s first affidavit annexed some, but apparently not all, of those documents, or at least some of them.

46 Fourth, Mr Prain’s first affidavit contained what appeared to be a relatively uncontroversial narrative of the relevant entries in the bank statements which evidenced the relevant funds transfers.

47 Mr Prain’s second affidavit was sworn on 7 February 2018. It simply annexed various subpoenas and notices to produce which had been issued to the Commonwealth Bank of Australia, together with a very large number of bank statements which had been produced in answer to the subpoenas and notices. It also contained Mr Prain’s analysis of the balances of various bank accounts at various times. The contents of Mr Prain’s second affidavit was not referred to in the judgment of the primary judge. Nor was this Court taken to any part of it by either party in their submissions in relation to the appeal. The relevance of Mr Prain’s analysis of the balances of some of the bank accounts is not immediately apparent.

48 The only other evidence apparently relied on by the Ombudsman before the primary judge was documentary evidence in the form of invoices issued to “Trek North Tours” by Queensland Rail Limited, a copy of the discretionary trust deed for the Leigh Jorgensen Family Trust dated 5 February 2014 and a letter from an accountant based in India which appeared to be dated 1 March 2016 (Exhibit 4). The latter document was produced by Mr Jorgensen during the enforcement hearing. He was asked some questions about it during that hearing. As will be seen, it was tendered by the Ombudsman in the proceeding before the primary judge so as to provide a “complete record” of the enforcement hearing. It also featured prominently in the primary judge’s reasons. The primary judge’s use or reliance on Exhibit 4 in making certain findings is the subject of one of Mr Jorgensen’s appeal grounds.

49 The Ombudsman’s case as articulated in its submissions in the Circuit Court was that Mr Jorgensen’s conduct in authorising or directing the transfers from the Yubnub account to the Family Trust account constituted a criminal contempt. It was submitted that Mr Jorgensen was the “proper contemnor” even though 828 Pty Limited was the party bound by the freezing order because he had knowledge of the freezing order and assisted 828 Pty Limited to disobey them. The Ombudsman submitted that the elements of the contempt it was alleging against Mr Jorgensen were: first, the existence of the freezing order; second, the terms of the freezing order were clear, unambiguous and capable of compliance; third, knowledge of the freezing order; and fourth, the alleged contemnor, Mr Jorgensen, knowingly impeded the administration of justice.

50 It is unnecessary, for present purposes, to outline the Ombudsman’s submissions in relation to the first three elements. It would appear that they were essentially not in issue in the Circuit Court and, even if they were, they were not the subject of any relevant issue in this appeal. As for the fourth element, the Ombudsman’s submission was essentially that Mr Jorgensen knowingly impeded the administration of justice because he knew of the existence of the freezing order and yet authorised or directed the payments from two of the frozen bank accounts into the Family Trust account.

51 The Ombudsman’s case was that the relevant transfers contravened the freezing order because they did not fall within any of the exceptions in the freezing order, including the “ordinary and proper course of business” exception in para 10(c) of the freezing order. It was submitted in that regard that Mr Jorgensen’s evidence did not establish a reasonable possibility that the payments were made in the “ordinary and proper course” of 828 Pty Limited’s business. The Ombudsman’s primary submission in that respect was that the payments into the Family Trust account did not constitute the payment of 828 Pty Limited’s business expenses.

52 In the Ombudsman’s submission, Mr Jorgensen’s evidence rose no higher than an assertion that the payments related to “generic business expenses” which he was not able to particularise. It was also submitted that, as at 30 July 2015, when the freezing order was extended, the Family Trust account was “in the black” and therefore 828 Pty Limited could not have owed anything to Mr Jorgensen in respect of the payment of past business expenses. The Ombudsman pointed out that each of the payments to the Family Trust account had the effect of “clearing out” the Yubnub account and submitted that the apparent intention of the payments was simply to reduce the amount of interest payable in respect of any debit balance in the Family Trust account. The Ombudsman submitted that, even if the payments had something to do with the payment of business expenses, they were not “proper” because there was no loan agreement between 828 Pty Limited and Mr Jorgensen and no proper records maintained by the business.

53 While the Ombudsman submitted that the payments did not fall within the exception in para 10(c) of the freezing order, it was not submitted, at least directly, that the evidence established that Mr Jorgensen knew that the payments did not fall within that exception. The Ombudsman did attack Mr Jorgensen’s credibility as a witness and the reliability of his evidence. The submissions made in that regard, however, were directed to the question whether Mr Jorgensen had established a reasonable possibility that the exception in para 10(c) of the freezing order applied. They were not directed to Mr Jorgensen’s evidence that he believed that the payments fell within that exception. At the very conclusion of the Ombudsman’s oral submissions it was put to the primary judge that he “may think it was a wilful and deliberate attempt to disobey the orders”, though the precise basis upon which it was submitted that the primary judge might arrive at that conclusion was not articulated at all.

54 It is also important to emphasise in this context that the Ombudsman expressly disavowed that its case against Mr Jorgensen was that he had intentionally cleared the Yubnub account so that the funds in that account were not available for payment of the judgment debt owing by 828 Pty Limited. The following exchange occurred in the course of the final submissions for Mr Jorgensen:

MS GOVER [Counsel for Mr Jorgensen]: My learned friend – the applicant has submitted that he [Mr Jorgensen] has intentionally cleared funds specifically to avoid those funds being in the business account, so that they could be available for payment of the judgment debt or recovery of the judgment debt. I apologise if I’ve misstated that.

HIS HONOUR: Yes. I don’t know that ---

MS WILSON [Counsel for the Ombudsman]: I never made that submission, your Honour.

55 Counsel for the Ombudsman went on to say that, insofar as Mr Jorgensen’s intention was concerned, the Ombudsman’s case was only that Mr Jorgensen’s conduct in transferring the funds in question was intentional in the sense that “[i]t was an intentional act to take those funds away”. The primary judge confirmed that his understanding of the Ombudsman’s case concerning Mr Jorgensen’s state of mind was that “these were intentional acts, in that it wasn’t reckless, it wasn’t an administrative oversight” and that it “was a conscious decision to take monies out of the frozen accounts for at the very least a purpose of reducing the interest that would have to be paid by the family trust”.

Mr Jorgensen’s evidence and submissions in the Circuit Court

56 Before the primary judge, Mr Jorgensen relied on an affidavit sworn by him on 30 April 2018. That affidavit included Mr Jorgensen’s general description of the business conducted by Trek North Tours and his account of the original proceedings commenced by the Ombudsman and the making and service of the freezing order. It is unnecessary to refer to those aspects of Mr Jorgensen’s evidence. Suffice it to say that Mr Jorgensen said that his understanding was that the freezing order were subject to some exceptions, which included that he was “permitted to deal with or dispose of funds from the Frozen Accounts in the ordinary course of [his] business, including payment of business expenses”.

57 Mr Jorgensen’s affidavit dated 30 April 2018 included the following evidence (at [15]-[26]) concerning the funds transfers which were the subject of the contempt charges (referred to in the affidavit as the Withdrawals):

15. I confirm that I was the only person with access to and control of the Frozen Accounts at the time the Withdrawals were made. I cannot recollect making those particular transactions but accept that I did.

16. The Trek North Tours business had significant outgoings, including monthly rental payments for the retails outlets from which it operated and monthly invoices from Skyrail and Queensland Rail.

17. At the time the Withdrawals were made, it was my practice was [sic] to pay some business expenses from the Family Trust Account. I also paid business expenses with a Commonwealth Bank Mastercard in my own name (5523 5052 7025 0991) (the Mastercard).

18. I usually repaid the Mastercard from a Commonwealth Bank Complete Access Account (BSB 064-804, Account 000436254) in my own name (the CBA Account). I also transferred large lump sums from the Family Trust Account into the CBA Account. The CBA Account was closed by the Commonwealth Bank in around November 2017. They advised this was for “commercial reasons”. I can no longer access those accounts and cannot access by [sic] old bank statements via internet banking.

19. Statements for the CBA Access Account and Mastercard are included at pages 15 to 104 of Annexure SP-27 of the affidavit of Samuel David Walter Prain dated 7 February 2018 (Mr Prain’s Second Affidavit).

20. The repayment of business expenses paid from the Family Trust Account was done on an ad hoc basis and cashflow through the business was variable. Rather than repaying specific amounts for particular business expenses, I would transfer money into the Family Trust Account when funds were available in the Trek North Tours Account or Yubnub Account. This was to reduce the line of credit whenever I could and lower the interest. I would empty whatever funds were in those accounts to reduce the overall debt.

21. I would also transfer money from the Yubnub Account to the Trek North Tours Account to cover business expenses.

22. By the time it went into liquidation, Trek North Tours owed $177,652 to Yubnub for payment of business expenses. Annexed hereto and marked ‘LAJ-1’ is a copy of the financial statements for Yubnub for the year ending 30 June 2016, confirming a debt in that amount.

23. The Trek North Tours business expenses paid from the Family Trust Account included payments made to the following accounts:

a. 084472 791708952 – This is the bank account of Skyrail, referred to in paragraph 5 above. Annexed hereto and marked ‘LAJ-2’ is a copy of an invoice from Skyrail dated 16 March 2018 which contains these bank account details.

b. 014734 493250736 – This is the bank account of A & K Ankars Pty Ltd, the lessor of Shop 10, Calypso Plaza, Shields Street in Cairns. The lease was held by Yubnub and Trek North Tours operated out of a retail store out [sic] those premises until it went into liquidation. This store has now closed. The premises were leased through Cairns Commercial real estate agents. There was never any formal sublease agreement between Yubnub and Trek North Tours in respect of these premises. Annexed to this affidavit and marked ‘LAJ-3’ is a true copy of an invoice from A & K Ankars Pty Ltd dated 25 July 2016 which contains these bank account details.

c. 064013 010030050 – This is a bank account operated by Queensland Rail. Annexed to this affidavit and marked ‘LAJ-4’ is a true copy of an invoice from Queensland Rail dated 28 August 2016 which contains these bank account details. In the past I have paid Queensland Rail using their bank details on some occasions, and on other occasions by using the BPAY reference provided on the invoice.

24. The Trek North Tours business expenses paid from the Mastercard included frequent payments made to the following payees:

a. “Rainforestation Pty Kuranda AUS” – Rainforestation is a nature park in Kuranda, Queensland. As Kuranda is the destination of the Skyrail, Rainforestation was a component of Trek North Tours’ daytrip packages; and

b. “Queensland Rail Limi Brisbane AUS” – As to the relationship between Trek North Tours and Queensland Rail, see paragraph 4 above.

25. After the freezing orders were made, I continued to operate my business and pay outgoings as I usually would. However, I did not draw any personal income from the Frozen Accounts. The Withdrawals were made to repay the Family Trust Account for business outgoings previously paid on behalf of Trek North Tours, particularly the large, frequent payments to Skyrail and Queensland Rail. This was my usual practice at that time. The Withdrawals were not for personal use.

26. For the reasons above, at the time I made the Withdrawals I believed they fell within the exception to the Freezing Order.

58 It should be noted that the references to Trek North Tours in Mr Jorgensen’s affidavit were references to 828 Pty Limited and that the references to the Trek North Tours account were references to the Jorgensen TNT account.

59 As can be seen, in short summary Mr Jorgensen’s evidence was that it had for some time been his practice to pay business expenses payable by Trek North Tours out of the Family Trust account and to transfer funds from the Yubnub account to “cover” those business expenses. That practice continued after the freezing order were made. Critically, his evidence was that the relevant funds transfers were made to repay the Family Trust account for “business outgoings previously paid on behalf of Trek North Tours” and that he believed that they therefore fell within the “ordinary and proper course of your business” exception in subpara 10(c) of the freezing order.

60 Mr Jorgensen was cross-examined at considerable length by counsel for the Ombudsman. He was also questioned at length by the primary judge during the course of the cross-examination. The questioning of Mr Jorgensen by both counsel for the Ombudsman and the primary judge occurred over three days.

61 It is neither necessary nor desirable at this stage to discuss Mr Jorgensen’s oral evidence at length. It suffices to say that, despite extensive questioning concerning the conduct of the business of Trek North Tours and the operation of the relevant bank accounts, Mr Jorgensen maintained that the funds transfers from the Yubnub and Jorgensen TNT accounts to the Family Trust account were all repayments of business expenses of the Trek North Tours business which had earlier been paid out of the Family Trust account. The business expenses were first paid from the Family Trust account because that was the only line of credit available to Mr Jorgensen.

62 Mr Jorgensen conceded that he was unable to say exactly what business expenses the impugned funds transfers specifically related to and agreed that the amounts did not correspond with any particular invoices. Rather, the transfers were made whenever business funds became available in, relevantly, the Yubnub account and generally had the effect of clearing the account until further funds were paid into it. This was done in part to ensure that the debit balance of the Family Trust account was reduced to minimise the amount of interest that was payable. He maintained that this was the way he had always conducted the Trek North Tours business and operated the relevant accounts and that he therefore believed that the funds transfers fell within the exception in subpara 10(c) of the freezing order. That was because he believed that the funds transfers were in the “ordinary and proper course” of the business of Trek North Tours and 828 Pty Limited.

63 In his submissions to the primary judge, Mr Jorgensen pointed to documentary evidence which supported or corroborated his case that the impugned transfers were simply a continuation of the practice that he had for some time adopted of first paying business expenses out of the Family Trust account and then reimbursing the Family Trust account from business funds when received in the Yubnub account. He submitted that an analysis of the Family Trust account statements showed that, for some considerable time prior to the making of the freezing order, business expenses of the Trek North Tours business were regularly paid out of the Family Trust account. Those payments included fairly regular payments to “Skyrail” and Queensland Rail.

64 In relation to the specific funds transfers, Mr Jorgensen pointed out that the Family Trust account statements showed that on 3 August 2015, the day before the first of the impugned transfers to the Family Trust account was made, two “Bpay” payments were made to Queensland Rail from the Family Trust account. Those payments, for $24,628.69 and $9,937.60 were referable to invoices issued by Queensland Rail to the Trek North Tours business in respect of the Kuranda Scenic Railway. Those invoices, which were in evidence, were dated 13 June and 30 June 2015 respectively. The bank statements also revealed that on 14 August 2015, an amount of $7,500 was transferred from the Family Trust account to the Jorgensen TNT account. Mr Jorgensen contended that the evidence therefore showed that in the period from 3 August 2015 (the day before the first of the impugned payments) to 14 August 2015 (the date of the last of the impugned payments), the Family Trust account was used to pay $42,066.29 towards the business expenses of the Trek North Tours business and $41,005.56 was transferred to the Family Trust account from the Yubnub and Jorgensen TNT accounts.

65 In Mr Jorgensen’s submission, it did not matter that the amounts paid to reimburse the Family Trust account did not precisely coincide with the invoices paid from the Family Trust account. Nor did it matter that Mr Jorgensen’s way of doing business was unsophisticated, if not haphazard. The impugned payments were in keeping with the way the business had always been operated by Mr Jorgensen and were therefore made in the ordinary and proper course of the business.

Judgments of the primary judge

66 On 30 April 2018, the primary judge delivered an ex tempore judgment rejecting Mr Jorgensen’s application that he had no case to answer. His Honour found that Mr Jorgensen had a case to answer based on the evidence adduced in the Ombudsman’s case because there was scant evidence concerning the relevant transactions and the way the bank accounts were operated. The evidence at that point did not, of course, include the evidence in Mr Jorgensen’s affidavit.

67 On 3 May 2018, the primary judge delivered an ex tempore judgment (the Judgment) in which he found that the Ombudsman had proved each of the nine charges of contempt beyond reasonable doubt and convicted Mr Jorgensen accordingly.

68 The primary judge accepted the Ombudsman’s submission that the contempt charges against Mr Jorgensen required the Ombudsman to prove four elements: that there was a court order in existence; that the terms of the order were clear, unambiguous and capable of compliance; that Mr Jorgensen had knowledge of the order; and that Mr Jorgensen knowingly impeded the administration of justice: Judgment at [46]. His Honour found that the first three elements were “easily met” and that the fourth element was the focus of the trial: Judgment at [47]-[50]. His Honour accepted that it was for the Ombudsman to prove each of the elements beyond reasonable doubt: Judgment at [52].

69 As for the “exception” in subpara 10(c) of the freezing order, the primary judge proceeded on the basis that it was for Mr Jorgensen to show that there was evidence upon which it could be found that the relevant payments fell within the exception and that once that was shown it was for the Ombudsman to negate the exception beyond reasonable doubt: Judgment at [52]-[53]. It should perhaps be noted, in this context, that the primary judge’s findings in this regard are consistent with the decision of Zammit J in Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738 at [31]-[49]; compare Australian Securities and Investments Commission v Sigalla (No 3) [2010] NSWSC 1076 at [46]-[48].

70 The primary judge then purported to address the question whether the relevant “disposition of assets” occurred in the “ordinary course of business and in the proper course of the business”: Judgment at [54]. That was no doubt a reference to the question whether the relevant withdrawals or transfers fell within the exception in subpara 10(c) of the freezing order. His Honour considered that the answer to that question turned in part on whether the relevant withdrawals were “bona fide business expenses which were properly incurred”: Judgment at [54]. While it is not entirely clear, it would appear that the primary judge accepted that Mr Jorgensen had met his evidentiary onus of adducing evidence that raised a reasonable possibility that the transfers fell within subpara 10(c) of the freezing order and that the question was whether the Ombudsman had discharged its legal burden of proving beyond reasonable doubt that they did not.

71 The primary judge found that the transfers were not the payment of “business expenses bona fide and properly incurred” (Judgment at [54]). His Honour’s reasons for so finding are not, however, entirely clear or easy to understand. His Honour appears to have accepted, or at least proceeded on the basis that, when he made the transfers, Mr Jorgensen was essentially reimbursing or repaying the Family Trust account because funds in the Family Trust account had been used to pay expenses of the Trek North Tours business. His Honour in effect found, however, that any reimbursement or repayment obligations that 828 Pty Limited may have had to the Family Trust arising from the use of funds in the Family Trust account to pay business expenses of Trek North Tours were not business expenses. His Honour reasoned as follows (at [59]-[61]):

I do not think that these payments can be categorised as business expenses. A business expense would occur if the Respondent (or the company) were paying a creditor but repaying a family trust who has paid a creditor, is not a business expense itself and certainly not in this case.

If one goes through the history of how these payments had been made, it is obvious to me that it does not really matter to the Respondent as to which entity pays the bill as long as, whenever there is too much credit in either of the business accounts that do not have debit or overdraft facilities, there is the minimum amount of debt in any other account for which a debit facility is enabled. That does not mean that the transferring of money becomes the payment of a business expense.

I accept the submission of the Applicant that, in such circumstances as obtained in this case, what was created was at the most, a financial obligation, maybe even a legal obligation, on behalf of the business to pay the family trust. Such obligations are not business expenses.

72 The primary judge also considered that it was important that the transfers or withdrawals did not correspond with the “actual” payments of the Trek North Tours expenses out of the Family Trust account and that the withdrawals, in that respect, were “sporadic”: Judgment at [70]. His Honour also considered that it was significant that the withdrawals on each occasion “cleared the account”, by which his Honour meant that the withdrawals reduced the balance of the Yubnub account to nil or almost nil, and that the transfers reduced the “interest rates” on the Family Trust account: Judgment at [71]. His Honour’s reference to reducing the “interest rates” was presumably a reference to the fact that the transfers into the Family Trust account reduced the debit balance of that account and meant that less interest was payable.

73 The primary judge also held that the transfers or withdrawals were not, in any event, made in the “ordinary and proper course of [828 Pty Limited’s] business”: Judgment at [72]. His Honour appears to have accepted that Mr Jorgensen had, in the past, conducted the business of Trek North Tours by using the Family Trust account to pay business expenses and then reimbursing the Family Trust account by transferring funds from the Yubnub account. His Honour held, however, that it did not follow that the conduct of the business in that way was “ordinary and proper”: Judgment at [72]. His Honour reasoned as follows (at [74]):

The mixing of business funds with personal funds could never be seen as proper. The non-documenting of loans could never be seen as proper. The non-existence of any loan agreement could not be seen as proper. The complete lack of records could not be seen as proper and it could never have been seen as a proper conduct of business to periodically clear a business account solely to ensure that a family trust account incurred the least amount of interest payable.

74 The primary judge accordingly found that the transfers or withdrawals did not fall within the exception in subpara 10(c) of the freezing order.

75 The primary judge then addressed what he considered to be an “even more fundamental problem” with Mr Jorgensen’s conduct which was relevant to whether he had “knowingly impeded the administration of justice”: Judgment at [76]. That problem, according to the primary judge’s findings, was that from 1 July 2015 the business of Trek North Tours had “effectively shut up shop” and was taken over by the business of Trek North Safaris: Judgment at [78]-[85]. That finding was primarily based on the primary judge’s analysis of Exhibit 4, the 1 March 2016 letter from the Indian accountant, though his Honour also considered that the letter did “seem to correspond with what the objective evidence is”: Judgment at [78].

76 The significance of the primary judge’s finding that on 1 July 2015 the business of Trek North Tours had effectively been taken over by the business of Trek North Safaris was twofold.

77 First, it provided the primary judge with another reason for finding that the transfers or withdrawals were not “bona fide business payments and in the ordinary course of running the business”. That was because, according to the primary judge, it meant that “any payments made after 1 July 2015 for business expenses, were made on behalf of Trek North Safaris”: Judgment at [82].

78 Second, though it is not entirely clear, the primary judge appears to have found that the “deliberate decision” by Mr Jorgensen to “ensure that Trek North Tours was no longer a going concern from 1 July 2015” was conduct which defeated, or had the effect of defeating, the purpose of the freezing order: Judgment at [84]-[85]. His Honour appears, therefore, to have found that it was that conduct by Mr Jorgensen, rather than the impugned transfers or withdrawals which were the subject of the Ombudsman’s pleaded case, which satisfied the element of knowingly impeding the administration of justice.

79 On 10 May 2018, the primary judge heard submissions in relation to sentencing Mr Jorgensen. His Honour handed down an ex tempore judgment (the Sentence Judgment) in which he imposed the following sentence:

That the Respondent, LEIGH ALAN JORGENSEN be sentenced to a period of imprisonment in the Lotus Glen Correctional Centre for a period of twelve (12) months, to be served immediately and upon the balance of $84,956.75 being paid to the Fair Work Ombudsman, with such monies to then be remitted to the relevant employees with in a further 28 days from the date of these Orders, the Respondent be released from prison on 20 May 2018 with the balance of his sentence to be wholly suspended.

80 His Honour made no order as to costs. His Honour also dismissed applications by Mr Jorgensen for bail and a stay of the sentence.

81 It should, however, be noted that on 11 May 2018, Reeves J ordered that the orders made by the primary judge on 10 May 2018 be stayed pending the hearing and determination of this appeal and that Mr Jorgensen be released on conditional bail.

82 For reasons that will in due course become apparent, it is unnecessary to refer at length to the primary judge’s reasons for imposing the sentence that he did. It suffices to make the following short points.

83 First, the primary judge reiterated his finding that the impugned transfers to the Family Trust account were not business expenses even though “there was an obligation on the business to repay the trust” which had arisen because the Family Trust account had been used to pay business expenses: Sentence Judgment at [28]. His Honour also explained that, even if that obligation was a business expense, the “method” by which Mr Jorgensen had come to make the transfers was “not a proper way in which to conduct business” because there were no loan agreements, no records kept of the expenses and the transfers had the effect of “clearing of the bank accounts”: Sentence Judgment at [29].

84 Second, the primary judge did not sentence Mr Jorgensen on the basis that he knew that the relevant transfers were either not the payment of business expenses or were not made in the ordinary and proper course of the business of 828 Pty Limited trading as Trek North Tours. Nor did his Honour suggest that Mr Jorgensen knew that the transfers did not fall within the exception in subpara 10(c) of the freezing order. Nor were such findings referred to in the Sentence Judgment.

85 Third, consistently with the primary judge’s judgment in respect of liability, his Honour had regard to what he found to be a “more alarming aspect” to Mr Jorgensen’s conduct: Sentence Judgment at [30]. The more alarming aspect was that, according to his Honour, the business expenses that were reimbursed by the relevant funds transfers were business expenses of Trek North Safaris, not Trek North Tours. That was because Trek North Tours had been “left to wither and die on the vine” and Trek North Safaris “took over” on 1 July 2015: Sentence Judgment at [31]-[33].

86 Fourth, it appears that the primary judge sentenced Mr Jorgensen on the basis that his conduct which warranted the “sternest possible condemnation” was his conduct in “orchestrat[ing] and structur[ing] a series of companies and businesses so as to be able to ensure that the Fair Work Ombudsman was never going to be able to have the judgment” in its favour satisfied (Sentence Judgment at [37]). As will be seen, there are a number of difficulties with that finding, not the least of which is that the contempt charges brought by the Ombudsman related only to specific breaches of the freezing order, not some broader scheme to defeat the judgment which had been obtained against 828 Pty Limited.

appeal grounds and submissions

87 Mr Jorgensen’s amended notice of appeal raised four grounds of appeal against his convictions for contempt. It also included a ground of appeal against the sentence imposed by the primary judge.

88 The first ground of appeal was, in short terms, that the primary judge erred in finding that the relevant transfers did not fall within the exception in subpara 10(c) of the freezing order because his Honour misconstrued the expressions “business expenses” and “ordinary and proper course of your business”. Mr Jorgensen contended, in essence, that the primary judge was distracted by the “messiness” of the manner in which the business of Trek North Tours was conducted and in particular by the fact that the conduct of the business generally included or involved the mixing of business and personal funds and the inadequate documentation of transactions. In Mr Jorgensen’s submission, the fact that he conducted his business in that general manner did not mean that the relevant transfers were not made in the “ordinary and proper course” of the business. The relevant question was whether the specific transfers were in “ordinary and proper course” of the business of Trek North Tours, not whether the conduct of that business generally was “proper”. Mr Jorgensen relied, in support of this ground, on the decision in Michael Wilson and Partners Limited v John Forster Emmott [2015] EWCA Civ 1028; [2015] All ER (D) 160 which, he contended, involved analogous facts and circumstances.

89 The second ground was that the primary judge “impermissibly” relied on Exhibit 4 and as a result erred in finding that the business of Trek North Tours was not a going concern from 1 July 2015 and that any payments for business expenses made after 1 July 2015 were made on behalf of Trek North Safaris. Mr Jorgensen contended that Exhibit 4, the 1 March 2016 letter from the Indian accountant, was only admitted on a limited hearsay basis and that he was not asked any questions about it at the hearing. He submitted that the document did not, in any event, support the relevant findings made by the primary judge.

90 The third ground of appeal was that the primary judge either failed to make an essential finding of fact, being that Mr Jorgensen knowingly impeded the administration of justice, or in the alternative erred in finding, beyond reasonable doubt, that he knowingly impeded the administration of justice. Mr Jorgensen contended that, while the primary judge identified that it was necessary for the Ombudsman to prove that he knowingly impeded the administration of justice, he made no express finding in that regard. Even if such a finding was somehow implicit in his Honour’s reasons, in Mr Jorgensen’s submission it was not a finding which was open on the evidence.

91 The fourth ground of appeal is that Mr Jorgensen was denied procedural fairness as a result of the primary judge’s “interventions” during the hearing.

92 The fifth ground of appeal relates to the sentence imposed on Mr Jorgensen. Mr Jorgensen contended that the “head penalty” of imprisonment was manifestly excessive because it required a period of “actual custody” to be served.

Consideration – conviction appeal

93 Where, as here, an appeal involves grounds involving allegations of apprehended bias or denial of procedural fairness along with other substantive or discrete grounds, the appeal court should first deal with the issues of bias or procedural fairness. That is because those grounds, if made out, would strike at the validity of the trial and require the matter to be remitted for retrial: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [2] (Gummow A-CJ), [117] (Kirby and Crennan JJ); Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; 332 ALR 128 at [9]-[13] (Basten JA) and [259]-[261] (Ward JA with whom Emmett AJA agreed). If the bias or procedural fairness ground is made out, it may then be inappropriate to determine the remaining grounds of appeal.

94 The appropriate course, then, is to first consider Mr Jorgensen’s fourth ground of appeal which alleged that he was denied procedural fairness.

Ground four - Denial of procedural fairness by reason of excessive interventions

95 Mr Jorgensen contended that excessive intervention by the primary judge during the course of his evidence at the trial resulted in or amounted to a denial of procedural fairness. He contended that the primary judge’s interventions undermined or disrupted the orderly elicitation of his evidence and represented such a fundamental departure from the role of a judge in an adversarial trial that it compromised the primary judge’s ability to objectively evaluate the evidence. Mr Jorgensen did not contend that the extent and nature of the primary judge’s interventions supported a finding of apprehended bias: that a fair minded lay observer might reasonably apprehend that the primary judge might not bring, or might not have brought, an impartial mind to the resolution of the question that the judge was required to decide. The issues or concepts of apprehended bias and procedural unfairness by excessive intervention may overlap, but are nonetheless distinct: RPS v The Queen [2000] HCA 3; 199 CLR 620 at [11]; Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 at [61].

96 It appears that Mr Jorgensen did not pursue any claim of apprehended bias because counsel who represented him before the primary judge did not apply for the judge to recuse himself, or otherwise raise any complaint concerning the interventions. It is, however, questionable whether the failure to object in the particular circumstances of this case would have constituted a form of waiver: cf. Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572. That is because the interventions occurred throughout the trial and it may in those circumstances have been difficult to identify a particular point in time when objection should have been taken: cf. Nguyen at [31]. The impact or risks associated with the interventions may also not have materialised until the ex tempore judgment was delivered by the primary judge: Nguyen at [32], [255].

Relevant principles

97 In any event, Mr Jorgensen’s ground of appeal relating to the primary judge’s interventions falls to be determined by references to the principles applicable to the situation where excessive interventions by a trial judge are said to have given rise to a denial of procedural fairness. Those principles are fairly well settled. In Galea v Galea (1990) 19 NSWLR 263, Kirby A-CJ (with whom Meagher JA agreed) summarised the relevant principles or guidelines in the following terms (at 281-282):

1. The test to be applied is whether the excessive judicial questioning or perjorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA).

2. A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, great latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane Ltd v Ministry of Transport.

3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”: see Sir Robert Megarry, “Temptations of the Bench” (1978) 16 Alta L Rev 406 at 409; see also U Gautier, “Judicial Discretion to Intervene in the Course of the Trial” (1980) 23 Crim LQ 88 at 95-96 and cases there cited.

4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In the Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626 (FFC); see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90 WN (Pt 1) (NSW) 427; [1970] 1 NSWR 654.

5. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel’s brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117).

6. The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v R (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F per Gleeson CJ.

98 In R v T, WA [2014] SASCFC 3; 118 SASR 382, Kourakis CJ identified three basic grounds on which excessive judicial intervention might give rise to a denial of procedural fairness or miscarriage of justice.

99 The first ground, which Kourakis CJ referred to as the “disruption ground” is made out where the interventions unfairly undermine the proper presentation of a party’s case: see also Ellis v R [2015] NSWCCA 262 at [65]. In Michel v R [2009] UKPC 41; [2010] 1 WLR 879, Lord Brown described this ground as involving interventions that prevent a party from doing himself or herself justice in the giving of his or her evidence. It may, however, also apply to interventions which occur in the course of submissions: see Jones v National Coal Board [1957] 2 QB 55 at 63-64.

100 The second ground is where the questioning or interruptions give an appearance of bias. As noted earlier, however, Mr Jorgensen did not pursue any claim of apprehended bias.

101 The third ground, which Kourakis CJ referred to as the “dust of conflict” ground (an expression coined by Lord Greene MR in Yuill v Yuill [1945] 1 All ER 183 at 189), is made out where the questioning or intervention is “such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance”: R v T at [38]. Kourakis CJ further explained this ground as follows (at [39]):

I prefer to state the dust of conflict ground in terms of compromising the capacity of the judge to adjudicate because an appeal court can never do anything more than speculate as to whether the judicial officer’s vision was in fact “clouded by the dust of conflict”. If the appeal court, on an appeal by way of rehearing, concludes that a judge’s findings were wrong in fact on the evidence, it may correct them without relying on the judge’s excessive judicial intervention. However, in those cases in which the facts, as found, were open to the trial judge, particularly given the judge’s advantage in assessing the credibility of the witnesses, it is impossible for an appeal court to say whether or not the judge’s finding in fact proceeded from a clouded, or clear headed, evaluation of the evidence. Moreover, because this ground, in effect, alleges an error of law which will generally result in a retrial irrespective of the appeal court’s view of the weight of the evidence, it is better based on an objective standard measured by an assessment of the degree to which the departure from a judge’s traditional role compromises the judicial capacity to objectively evaluate the evidence.

102 Needless to say, there are some entirely proper reasons why a trial judge might intervene and ask questions of a witness or test counsel’s submissions. Judges are no longer expected to remain “as inscrutable as the Sphinx” throughout the course of a trial: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 493; see also Huda & Huda & Latham [2018] FamCAFC 85 at [1]. In Michel, Lord Brown gave the following summary of the sorts of interventions that are proper and permissible and those that are not (at [34]):

Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.

103 This passage was cited with approval in Nguyen at [17] (Basten JA) and [172] (Ward JA); see also Toth at [67].

104 Appellate challenges based on excessive intervention by the trial judge are rarely easy to evaluate: Nguyen at [14]; Huda at [61]. It is generally necessary to consider the interventions complained of in the context of the trial as a whole and the findings of the trial judge in relation to the key issues, including, where applicable, findings as to credit.

Analysis of the trial transcript

105 A detailed review and analysis of the trial transcript in this matter clearly supports a finding that the trial judge’s interventions were such that both the disruption ground and the dust of conflict ground are made out. The primary judge’s interventions both undermined the proper presentation of Mr Jorgensen’s case and represented such an egregious departure from the role of judge presiding over an adversarial trial that it unduly compromised his Honour’s capacity to objectively evaluate the evidence.

106 Before addressing the specific features of the primary judge’s interventions which support that conclusion, it should in fairness be emphasised that it is not hard to see why the primary judge considered it necessary at times to intervene during Mr Jorgensen’s evidence. Mr Jorgensen was, for the most part, not an impressive witness. At certain times he appeared evasive and unable or unwilling to give direct answers to questions in clear or comprehensible terms. Some degree of intervention was no doubt warranted or required at times to ensure that Mr Jorgensen’s answers were responsive. Mr Jorgensen’s evidence also appeared at times to be unclear or confused. It was no doubt legitimate for the primary judge to intervene at times for the purpose of seeking clarification to aspects of Mr Jorgensen’s evidence.

107 The problem, however, is that on just about any view, the extent and nature of the primary judge’s interventions went well beyond those legitimate ends.

108 A review of the transcript of the hearing reveals the following twelve features of the primary judge’s interventions during the course of the hearing.

109 First, the primary judge’s interventions during the cross-examination of Mr Jorgensen began at a very early stage.

110 The cross-examination of Mr Jorgensen commenced with some questions about relatively uncontroversial issues. Counsel for the Ombudsman then took Mr Jorgensen to the transcript of his evidence at the enforcement hearing. Mr Jorgensen was questioned about evidence that he had given during the enforcement hearing which was to the effect that he was not personally liable to pay the penalties that were imposed on 828 Pty Limited and that he had chosen not to pay those penalties from his personal finances. Mr Jorgensen’s evidence in that regard included that the “company doesn’t have access to my personal funds”.

111 While it seems tolerably clear that Mr Jorgensen was saying no more than that he was not personally liable to pay the debts of 828 Pty Limited, the primary judge appears to have taken exception to that evidence. At that point, his Honour essentially took over the questioning of Mr Jorgensen about the evidence he had given at the enforcement hearing on that topic. After a lengthy series of fairly confusing questions asked by the primary judge, Mr Jorgensen eventually agreed that he gave that evidence at the enforcement hearing. That prompted the following question or statement from the primary judge (T50 lines 1-7):

You’ve said it. Okay. I don’t know – you’re the one that has – that has come out of your mouth. You’re the one controlling all these entities, the Yubnub Proprietary Limited, the Trek North Tours, the Trek North Safaris – I don’t know how many other things that you’ve got. You’re the one that has control over that. You’re the one who has control over your personal funds and your family trust and all of those things. Your words are “the company doesn’t have access to my personal funds”?---That’s my understanding, your Honour.

112 The precise relevance of the fact that Mr Jorgensen had not paid the pecuniary penalties that were imposed on the company from his own personal finances was never explained. Counsel for Mr Jorgensen in due course objected to further questioning on that topic by counsel for the Ombudsman, arguing that “the issue isn’t whether my client is in contempt for not paying [the company’s] judgment debt” but rather was “whether he’s in contempt for the transactions particularised” (T53 lines 17-18). His Honour appears to have accepted the force of that argument, but held that questions directed at that topic were nevertheless relevant.

113 Second, the primary judge’s interventions during the cross-examination of Mr Jorgensen were frequent and regular. From about eight pages into the transcript of the cross-examination, barely a page of the transcript goes by without his Honour intervening in some way in the cross-examination. Some of the interventions are relatively minor, though the vast majority are significant, substantial and lengthy. Well over half the pages of the transcript of the cross-examination include some significant intervention by the primary judge. In his submissions on appeal, Mr Jorgensen contended that the primary judge’s questioning of Mr Jorgensen constituted about 40 per cent of the questioning during cross-examination. The Ombudsman did not dispute that calculation in his submissions. It appears to be a fairly accurate calculation.

114 Third, the questions that the primary judge asked Mr Jorgensen for the most part were not non-leading or open questions, but were closed questions or involved putting propositions to Mr Jorgensen, often in forceful terms, for his agreement or comment. The primary judge’s questioning, for the most part, could fairly be characterised as constituting cross-examination.

115 There are numerous examples of this type of questioning. It suffices to give one example, which involved questioning directed to what was essentially one of the key factual issues in the proceeding; Mr Jorgensen’s claim that the impugned transfers were made so as to reimburse the Family Trust account in respect of business expenses of Trek North Tours that had been paid out of that account. At one point of the cross-examination, as counsel for the Ombudsman was taking Mr Jorgensen through some of the entries in the relevant bank statements, the primary judge intervened as follows (T114 line 44 to T115 line 34):

HIS HONOUR: Well, I mean – you know, it – it just – it really doesn’t make sense, that if you’ve got business expenses and you’ve got a business account, and you know that you’ve got bills that are due from your business, that you just didn’t pay them out of your business account, and instead put money from your account into your family trust, and asked the family trust to pay it. That doesn’t – that doesn’t make sense?---Can I comment, your Honour?

Well, you can comment, but you see, this is – this is the point. When you have money in the account, which is your business account - - -?---Mmm.

- - - which is your revenue from your business activities?---Mmm.

To which you should be – have a, “Yes. This is my revenue, and these are my expenses”. Instead, you get your revenue, you transfer it to another account, and then you say, “Right. Well, whilst I did have money to pay for these bills, I will just put that money into another account, and I will get that other account to pay the bills?---Okay.

That doesn’t make sense?---The other account would pay the bill, and my recollection is that the – this account would owe money for previous – ..... at call.

Yes. But that’s what you say, but I can’t see any of that?---Your Honour?

What bill was it that you paid – that you put $12,000 on 9 July? What bill was it that you put $3500 on 9 July? What bill was it when you cleared the account of 16,000?---Yes. If the credit line - - -

None of them?---If the credit line owed – was in debt, that would – that was for the bills.

Yes?---So it’s - - -

No, no, no. You see, this is – that’s – that’s the point is, you don’t know whether the credit line is in debt because of the bills, or whether you took a holiday, or whether you bought a car, whether you bought groceries. It’s just in debt?---Well, it was used for – for bills, your Honour.

Well, that’s what you say?---Okay.

116 Fourth, on many occasions the primary judge effectively took over the cross-examination of Mr Jorgensen on a particular topic, often when counsel for the Ombudsman had only just begun questioning Mr Jorgensen on that topic. After the primary judge’s intervention, counsel for the Ombudsman would sometimes continue with the questioning on that topic, and sometimes would move onto a new topic as there was nothing further to ask on that topic. On other occasions, the primary judge would intervene and ask Mr Jorgensen about a different topic to that which was being addressed by counsel for the Ombudsman. After the primary judge asked some questions on that topic, counsel for the Ombudsman would pick up where his Honour had left off. In that way, the cross-examination often proceeded as if there was a form of “tag team” between the primary judge and counsel for the Ombudsman: cf. Nguyen at [209].

117 One example of this occurred during the cross-examination of Mr Jorgensen about the trust deed of his family trust. That topic was introduced by counsel for the Ombudsman. Counsel for Mr Jorgensen objected to the questions about the trust deed on the basis of relevance, arguing that “whether or not Mr Jorgensen has complied with his obligations as trustee is… neither here nor there” (T73 lines 16-17). The primary judge overruled that objection on the basis that he thought that it was relevant, though it is unclear why. Counsel for the Ombudsman asked one more question on that topic, at which point the primary judge effectively took over the questioning (see from T73 line 31) as follows:

HIS HONOUR: Yes. That’s not answering the question. This was set up - - -?---So there’s no - - -

- - - in 2014?---There’s no specific books, your Honour, for – not yet for the equity access.

No. What did you do to establish and maintain proper books of account? That’s what you were asked. What did you do?---Engaged a chartered accountant. And – and that will happen. And they’ve – they’ve actually been very busy with - - -

What, four years busy? “I will get around to it; it has taken me four years to do this.” Is that what you’re saying?---Four years? Sorry.

Well, this was set up in 2014?---Well, it hasn’t ever had, until recently, equity accessible. Like, a credit - - -

It has had a bank account. There’s moneys going into this bank account. There are moneys going out of this bank account?---For - - -

What is it that you’ve done under this deed to establish and maintain proper books of account?---Approached the chartered accountant, your Honour, and – and asked them to tidy all this up.

And?---Well, if they’ve completed - - -

In the end it’s your responsibility. Where are the books? Where are the books for 2014 when you established this?---I’m sorry. I don’t understand the question.

Okay. Let’s get down to basics. 2014 you set this up, right?---Yes.

Okay. 2014 you knew – clause 55:

The trustee must establish and maintain proper books of account.

What did you do? You said, “I went to a chartered accountant.” Fantastic. You’ve got an account where you’ve been using it for all sorts of things, that account. Where are the books for 2014?---Well, it has only been used the last year or two – maybe two years, your Honour.

What do you mean it has been used – I’ve got all of these material that just shows that that account has been used certainly in 2015 because that’s where these payments that the Fair Work Ombudsman says were in contempt have gone?---I believe it was 2015, the equity access. That was the statements.

Mr Jorgensen, answer my question or there will be another proceeding for contempt. What have you done to establish and maintain the proper books of account?---Approached the chartered accountants to - - -

And where are these proper books of account?---I don’t have them here, your Honour. They haven’t – they haven’t - - -

Do they exist?---No, not yet. No.

Yes.

(Emphasis added.)

118 Counsel for the Ombudsman then took up the questioning on this topic and moved onto the question of whether the trust produced proper financial statements.

119 Fifth, as also illustrated by the portion of the transcript just extracted, the primary judge sometimes made threatening or accusatory statements to Mr Jorgensen. The statement (emphasised in the extract) that Mr Jorgensen should answer the primary judge’s question or there would be another proceeding for contempt is a particularly clear example of that type of questioning.

120 Sixth, the primary judge frequently interrupted Mr Jorgensen’s answers to questions that were put to him, both by the primary judge himself and also by counsel for the Ombudsman. That is also apparent from the portion of the transcript that has just been extracted. It would appear that his Honour did not see any issue with him interrupting Mr Jorgensen as he gave his evidence. That is apparent from the following exchange, which occurred at one point where Mr Jorgensen had attempted to say something during an exchange between his counsel and the primary judge about an aspect of his evidence (T76 lines 39-46):

HIS HONOUR: Do not talk when I’m talking. Do you understand just plain simple good manners? I’m the only one who can interrupt anyone in this court. Do you understand that?---I’m – I’m very sorry.

And I will do it when I want?---I’m very sorry.

You don’t. Ms Wilson doesn’t. Ms Gover doesn’t. It’s me and me only; understand?---Yes, your Honour.

121 Similarly, when Mr Jorgensen attempted to say something during an exchange between the primary judge and counsel for the Ombudsman, the following occurred (T113 lines 40-45):

HIS HONOUR: Yes. Did I ask you a question?---No, your Honour.

Well, what – did you just feel as though, “I think I’ll just enlighten everyone with my knowledge”?---No, your Honour. I’m sorry.

You talk when I ask you to talk?---Yes.

122 Seventh, some of the primary judge’s questions were directed at issues that could fairly be characterised as collateral issues, or issues that could only have gone to Mr Jorgensen’s credit. The questioning by the primary judge about whether the trust maintained proper books and records is one example of that type of questioning. At one point the primary judge also, somewhat unfairly, questioned Mr Jorgensen about whether the effect of his evidence was that 828 Pty Limited had engaged in insolvent trading (see T51 lines 1-23). At another point, his Honour questioned Mr Jorgensen about how his affidavit came to include the expression “ad hoc” when he did not understand what that expression meant.

123 Eighth, many of the questions put by the primary judge were in an unfair or inadmissible form and would have been objectionable if asked by counsel. For example, the primary judge frequently asked questions which included numerous statements or multiple questions. For instance, when asked about the existence of invoices for the business expenses that had, on Mr Jorgensen’s evidence, been paid out of the Family Trust account, the primary judge asked the following question (T137 lines 7-16):

HIS HONOUR: At any time?---Well, the – there are – obviously the account that has paid the invoices – those invoices exist.

Do they?---Yes, your Honour.

They haven’t been brought here. I haven’t seen them. I can’t look at the account, your family trust account, and see any other invoices other than these two from Queensland Rail that you say have been paid in the ordinary accounts – the ordinary transactions of business. What other invoices are there? And if there are other invoices why aren’t they here?

124 In fact, as counsel for Mr Jorgensen subsequently pointed out, there were some invoices annexed to Mr Jorgensen’s affidavit.

125 Other examples of unfair or inadmissible questions asked by the primary judge appear in the portions of the transcript which have already been referred to, or are referred to in the extracts which follow.

126 Ninth, the primary judge was frequently critical, disparaging or sarcastic towards Mr Jorgensen and his evidence. For example, at one stage, his Honour said to Mr Jorgensen, “if you tell me the truth, that would be a good start” (T67 line 31) and, on another occasion, he said, “You’ve been as evasive as I’ve ever seen a witness” (T68 line 1). On another occasion, the primary judge interrupted or cut-off Mr Jorgensen’s answer to a question and said (T138 lines 44-45):

Now, you just keep trying to obfuscate. You keep trying to make sure that we don’t get to the truth. You had better stop that because I’m getting very sick of it.

127 The primary judge also responded to one of Mr Jorgensen’s answers by saying “[y]ou’re kidding me” (T146 line 20). At one point, when Mr Jorgensen indicated that he did not understand a particular proposition that the primary judge was putting to him, his Honour said: “[w]hat, am I talking Swahili or something, am I” (T119 line 43).

128 Perhaps most significantly, the primary judge expressed disbelief and scepticism about Mr Jorgensen’s evidence concerning what was one of the critical issues in the trial: his belief that the transfers were made in the ordinary and proper course of the business of Trek North T