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NSW Crest

Supreme Court
New South Wales

Medium Neutral Citation:
Justine Munsie & Anor v Shane Dowling [2014] NSWSC 962
Hearing dates:
15 July 2014
Decision date:
22 July 2014
Jurisdiction:
Common Law
Before:
Nicholas AJ
Decision:

See paragraph 32.

Catchwords:
PROCEDURE - judgments and orders - contempt - civil contempt - ex parte suppression order - defendant published matter, including on the internet, in breach of the order - whether publication in contempt of court.
Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010
Uniform Civil Procedure Rules, rule 40.7(3)
Cases Cited:
Australasian Meat Industry Employees Union and Ors v Mudginberri Station Pty Limited (1986) 161 CLR 98
Commissioner for Fair Trading v Rixon (No. 2) [2014] NSWSC 431
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim & Ors [2012] NSWCCA 125
Munsie v Dowling [2014] NSWSC 458
The Queen v Hinch [2013] VSC 520
Westpac Banking Corporation v Burke [2011] NSWSC 549
Category:
Principal judgment
Parties:
First Plaintiff: Justine Munsie
Second Plaintiff: Kerry Stokes
Defendant: Shane Dowling
Representation:
Counsel:
Plaintiffs: A.T.S. Dawson
Solicitors:
Plaintiffs: Martin O'Connor, Addisons
Defendant: in person
File Number(s):
2014/114469
Publication restriction:
No

Judgment

1By notice of motion filed 17 April 2014 the plaintiffs seek a declaration that the defendant was in contempt of court for breach of the orders of the court made in these proceedings on 14 April 2014, and consequential orders. The accompanying Statement of Charge alleged that, in disobedience and contravention of the orders, the defendant, on 16 April 2014:

(1) published an article on the website known as the "Kangaroo Court website" entitled "Kerry Stokes has suppression order put on defamation proceedings against KCA Published" which contained links to a number of documents. (A copy of the article is annexure A to these reasons);

(2) published on his Twitter account tweets concerning the first plaintiff, the making of the suppression order, and the defamation proceedings against him. (A copy of the tweets is annexure B to these reasons); and

(3) an email to the Chief Justice of New South Wales and other persons. (A copy of which is annexure C to these reasons).

2The defendant was self-represented. He pleaded "not guilty".

The Court Orders

3On 14 April 2014 the plaintiffs made an ex parte application before Harrison J, then sitting as the Duty Judge. The proceedings were commenced by a Statement of Claim in which the plaintiffs plead a cause of action against the defendant in defamation. The relevant background was described in his Honour's judgment of 24 April 2014 ([2014] NSWSC 458) as follows:

"[7] The statement of claim commencing the proceedings pleads a cause of action by each plaintiff against Mr Dowling in defamation. The plaintiffs allege that Mr Dowling is the registrant of the domain name kangaroocourtofaustralia.com and the publisher of a website connected to that domain name called Kangaroo Court of Australia. In or about late February 2014 Mr Dowling published of and concerning the plaintiffs an article on that website which is exhibited to Ms Munsie's affidavit. The plaintiffs allege that the article in its natural and ordinary meaning carried the following imputations which were defamatory of them:
Ms Munsie
(a) Ms Munsie, a solicitor, lied to the AFP about Channel Seven's ability to comply with an AFP search warrant.
(b) Ms Munsie attempted to assist her client, Channel Seven, dishonestly to avoid revealing documents caught by an AFP search warrant which she knew would prove that Channel Seven had concluded an illegal deal to pay Schapelle Corby for an interview.
(c) Ms Munsie has repeatedly committed perjury.
Mr Stokes
(d) Mr Stokes has used threats and intimidation against the AFP to avoid having to reveal documents caught by an AFP search warrant which he knew would prove that Channel Seven had concluded an illegal deal to pay Schapelle Corby for an interview.
(e) Mr Stokes lied to the AFP about Channel Seven's ability to comply with an AFP search warrant.
(f) Mr Stokes made dishonest threats against the AFP for their raid on Channel Seven when he knew that the raid only occurred because he and Channel Seven staff failed to comply with the AFP's production order deadline.
(g) Mr Stokes has repeatedly committed perjury.
(h) Mr Stokes is delusional.
[8] The plaintiffs also allege that a link to the article published on Mr Dowling's twitter page www.twitter.com.kangaroocourt carried an imputation that both plaintiffs had been caught lying in relation to her or his respective dealings concerning Schapelle Corby.
...
[18] ...the plaintiffs sought ex parte orders from me on 14 April 2014 that included an injunction that required Mr Dowling to take down the offending material and that also prevented Mr Dowling from publishing further similar material or material to a like effect. The plaintiffs sought in addition an order pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act. As will already be apparent, I declined to grant an injunction in the terms sought having regard to the useful statement of the relevant principles in the joint judgment of Gleeson CJ and Crennan J in ABC v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [16]-[19]. I proceeded upon the basis that the court had the power to grant an injunction in an appropriate case but that it is a power that is exercised with great caution and only in very clear cases.
[19] I did, however, make an order prohibiting up to and including 4pm on Thursday 17 April 2014 the disclosure by publication or otherwise of the existence of these proceedings and certain specified related matters. I took that course as a matter of caution and fairness in the absence of Mr Dowling and without any material from him or in his behalf suggesting or supporting either the possibility or the likelihood that he may have had a defence, whether of justification or otherwise, to the proceedings. I chose to proceed cautiously, in the absence of material from which I could assess whether or not Mr Dowling may have had such a defence, even though there was no real room for debate upon the information provided to me at the time that the matters complained of were otherwise defamatory."

4The orders then made were as follows:

"2. Abridge time of the service of the notice of motion upon the defendant to 5pm on Tuesday, 15 April 2014.

3. Order that the notice of motion and the statement of claim together with the supporting affidavit of the first plaintiff sworn today and a copy of these orders may together be served upon the defendant either by email to the address shanedowling@hotmail.com or by delivery to 5/68-70 Curlewis Street, Bondi Beach.

4. Appoint noon (12pm) on Thursday, 17 April 2014 for the return of the notice of motion.

5. Up to and including 4pm on Thursday 17 April 2014 make orders 6 and 7 in the notice of motion.

6. A suppression order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the ground set out in s 8(1)(a), prohibiting the disclosure, by publication or otherwise, of:

a. the existence of these proceedings;

b. the pleadings herein;

c. any information as to the relief claimed in these proceedings;

d. any information that comprises evidence, or information about evidence, given in the proceedings, including any information which tends to reveal the identity of the plaintiffs;

e. any submissions, filed , read or given in these proceedings;

f. this notice of motion; and

g. any orders of the Court made in these proceedings. (the Suppression Order)

7. The Suppression Order:

a. applies throughout the Commonwealth;

b. operates, unless the Court otherwise orders, until the determination of these proceedings."

5Relevantly, the Court Suppression and Non-Publication Orders Act 2010 (the Act) provides:

"7 Power to make orders
A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or
(b) information that comprises evidence, or information about evidence, given in proceedings before the court.
8 Grounds for making an order
(1) A court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice,
...
10 Interim orders
(1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.
(2) If an order is made as an interim order, the court must determine the application as a matter of urgency.
11 Where an order applies
(1) A suppression order or non-publication order applies only to the disclosure or publication of information in a place where the order applies, as specified in the order.
...
(3) However, an order is not to be made to apply outside New South Wales unless the court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made.
12 Duration of orders
(1) A suppression order or non-publication order operates for the period decided by the court and specified in the order.
...
16 Contravention of order
(1) A person commits an offence if the person engages in conduct that constitutes a contravention of a suppression order or non-publication order and is reckless as to whether the conduct constitutes a contravention of a suppression order or non-publication order.
Maximum penalty: 1,000 penalty units or imprisonment for 12 months, or both, for an individual or 5,000 penalty units for a body corporate.
(2) Conduct that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence."

6The suppression orders, orders 6 and 7, expired at 4pm 17 April 2014.

7On 17 April 2014 the matter returned before Harrison J, when the present notice of motion was filed in Court. The defendant appeared in person. His Honour declined to make orders 4 and 5 in the notice of motion, and stood the balance over for directions. It was noted that the plaintiffs' evidence in support of the contempt application was complete. His Honour directed the defendant to file and serve any evidence upon which he relied in response to the Statement of Charge by 4pm 15 May 2014.

8The charge of contempt alleged in the Statement of Charge was in the following terms:

"4 On 16 April 2014, in wilful disobedience and contravention of order 6 of the 14 April Orders, and thereby committing the offence of contravention of suppression order provided for in s 16 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the defendant disclosed and published the matters and documents referred to in 6(a) -(g) of the order:

Particulars

(a) On 16 April 2014, at approximately 10am, the defendant published an article on the website www.kandaroocourtofaustralia.com (Kangaroo Court Website) entitled "Kerry Stokes has suppression order put on defamation proceedings against KCA publisher" (Article), containing links to the following documents:

a. the affidavit of Justine Melissa Munsie dated 14 April 2014;

b. the judgment/order of Justice Harrison dated 15 April 2014;

c. the notice of motion dated 15 April 2014;

d. the statement of claim dated 15 April 2014; and

e. the exhibits to the affidavit of Justine Melissa Munsie dated 15 April 2014.

(b) The defendant thereby disclosed and published the following matters and documents:

a. the existence of these proceedings and other particulars of the proceedings;

b. the affidavit of Justine Melissa Munsie dated 14 April 2014;

c. the judgment/order of Justice Harrison dated 15 April 2014;

d. the notice of motion dated 15 April 2014;

e. the statement of claim dated 15 April 2014; and

f. the exhibits to the affidavit of Justine Melissa Munsie dated 15 April 2014.

(c) On 16 April 2014, at approximately 10am, the defendant published on the twitter.com website via his Twitter account http://twitter.com/Kangaroo_Court the following Tweets:

i. Kerry Stokes has suppression order put on defamation proceedings against KCA published http://wp.me/p1feCR-1Ek #auspol #icac #auslaw

ii. Kerry Stokes institutes defamation proceedings against Kangaroo Court of Australia publisher http://wp.me/p1feCR-1Ek #auspol #icac #auslaw

The tweets contained a link to the Article on the website.

(d) The defendant thereby further disclosed and/or published the following matters and documents:

a. the existence of this proceeding; and

b. the affidavit of Justine Melissa Munsie dated 14 April 2014;

c. the judgment/order of Justice Harrison dated 15 April 2014;

d. the notice of motion dated 15 April 2014

e. the statement of claim dated 15 April 2014; and

f. the exhibits to the affidavit of Justine Melissa Munsie dated 15 April 2014.

(e) On 16 April 2014, at approximately 12.30pm, the defendant sent an email addressed to the Chief Justice of NSW to the persons not parties to these proceedings at the following email addresses:

victoria_bradshaw@courts.nsw.gov.au, bernadette_Heywood@courts.nsw.gov.au, tony_negus@afp.gov.au, olsc@agd.nsw.gov.au, office@smith.minister.nsw.gov.au, michael.phelan@afp.gov.au, jeffrey.kokles@afp.gov.au

(f) (The text of the email, annexure C, was set out).

(g) The defendant attached to the email, the following documents:

a. the Article;

b. the affidavit of Justine Melissa Munsie dated 14 April 2014;

c. the judgment/order of Justice Harrison dated 15 April 2014;

d. the notice of motion dated 15 April 2014; and

e. the statement of claim dated 15 April 2014.

(h) The defendant hereby disclosed and/or published the following matters and documents:

(The list in sub-para (d) was repeated):"

The Principles

9It is a fundamental principle that any order of the Court should be obeyed unless and until it is stayed or set aside. In Australasian Meat Industry Employees Union and Ors v Mudginberri Station Pty Limited (1986) 161 CLR 98 at 107 the plurality said:

"...the underlying rationale of every exercise of the contempt power, namely that it is necessary to uphold and protect the effective administration of justice. Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt (1983) 2nd ed say, at p 3:
'If a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.'"

10In Commissioner for Fair Trading v Rixon (No. 2) [2014] NSWSC 431 Garling J provided a comprehensive summary of the principles which I gratefully adopt:

"[38] The first principle is that the charge of contempt must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 529 per Brennan, Deane, Toohey and Gaudron JJ. It is for the Commissioner to satisfy the court beyond reasonable doubt that Mr Rixon has committed a contempt of court.
[39] Secondly, a contempt of court can be constituted by the breach of an order of the court: Trade Practices Commission v C G Smith Pty Ltd (1978) 30 FLR 368 at 375; Spindler v Balog (1959) 76 WN (NSW) 391; Circuit Finance Australia v Sobbi [2010] NSWSC 789 at [10].
[40] Thirdly, a person cannot be found guilty of a contempt of court for breach of an order, where the terms of the order are ambiguous: Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 515-6 per Owen J. The ambiguity must be such that it cannot be said what it was that required compliance: Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [56]-[57] per Beazley JA.
[41] Fourthly, where the contempt of court consists of a failure to comply with an order of the court, it must be demonstrated that the contempt was wilful, and not merely casual, accidental or unintentional: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98. However, it is not necessary for an applicant to prove that the contemnor intended to breach an order of the court: see Anderson v Hassett [2007] NSWSC 1310; Mudginberri at 111; Matthews v Australian Securities Investment Commission [2009] NSWCA 155 at [16] per Tobias JA.
[42] As Brereton J said in Anderson at [6]:
The statement in Mudginberri (at 113) that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional, does not require proof of a specific intent, but permits an alleged contemnor to show by way of exculpation that the default was "casual, accidental or unintentional" ...
[43] Finally, it is not necessary for an applicant to prove that the contemnor was aware that his or her conduct constituted a breach of the court's order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143 per Lindgren J; Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16 at [9] per Finn J."

11With respect to the publication of an article on the internet, in The Queen v Hinch [2013] VSC 520 Kaye J held:

"[52] In order to establish the guilt of the respondent of the first charge, the applicant must prove beyond reasonable doubt each of the following elements:
(1) That the respondent published the article on the website.
(2) That the publication by the respondent of the article frustrated the effect of the order by containing material which was contrary to or which infringed the terms of the order.
(3) That at the time at which the respondent published the article, he had sufficient knowledge of the terms and effect of the order, that a reasonable person would have understood that the continued publication of the article on the website would have the tendency to frustrate the efficacy of the order.
[53] In the context of the law of contempt, an article, which appears on the internet, is regarded as being published during the period in which the person responsible for maintaining the article on the internet makes the information, contained in the article, available on the internet. In this respect, the concept of publication in the law of contempt is different to the concept of publication for the purposes of the law of defamation.24 In News Digital Media Pty Ltd v Mokbel,25 in their joint judgment, Warren CJ and Byrne AJA, referred to two previous decisions which demonstrated the different approaches to the question, when publication is considered to occur, in the law of defamation and the law of contempt. Their Honours stated:
There is between these two decisions a difference as to the moment of publication. Is it on every day that the material is available on the internet, or on the day that someone accesses the material which is available on the internet? In the case where the claim is for damages for defamation, the publication occurs when the material comes to the attention of the visitor to the site in whose eyes the plaintiff's reputation suffers damage. In the case of contempt, where the concern is the risk to the legal process, this occurs when the material is made available to the juror or potential juror. Accordingly, we would accept the analysis ... that the contempt occurs when and where the material is available to such a person, whether it be shown that the person accessed it or not. Contempt occurs when the court process is exposed to risk, irrespective of whether the risk becomes actuality. This is consistent with the approach of the court to allegations of contempt by publication of prejudicial material in the print or radio media. In such a case, the prosecution case does not depend upon proof that a juror or potential juror actually read or heard the prejudicial material; it is sufficient that, at the time of publication, the publication, assessed objectively, has a real and definite tendency to prejudice or embarrass the particular proceeding.26
[54] For that reason, it is accepted that, for the purpose of the law of contempt, publication of material on the internet is considered to be a continuing act, so that the person responsible for maintaining the matter on the internet is considered to thereby publish it for so long as the material is available for access by the public on the internet."

12The same approach is taken with regard to the understanding of publication for the purposes of the Act. In Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim & Ors [2012] NSWCCA 125 Basten JA explained:

"[53] The general law is concerned with the effects of pre-trial publicity. That focuses not on the legality or otherwise of the conduct of the publisher, but on whether the accused will be able to obtain a fair trial. Its most frequent application is to be found in proceedings for contempt of court, brought after publication. However, there are a small number of cases in which pre-publication restraints have been sought under the general law, often as an adjunct to contempt proceedings in relation to material already published: seeAttorney General (NSW) v Time Inc Magazine Company Pty Ltd [1994] NSWCA 134 (Kirby P, Handley and Sheller JJA). In Attorney General v Random House Group Ltd [2009] EWHC 1727 (QB), Tugendhat J considered an application for a prohibition on the further sale of a book already published. He considered the stakes involved in a pending terrorism retrial were so high that the injunction ought be granted."

The Evidence

13The defendant was charged with contravention of Order 6.

14The plaintiffs relied upon the evidence in the affidavit of Mr Richard Michael Keegan, their solicitor, sworn 17 April 2014, and the documents to which it referred included in Exhibit A.

15The defendant did not file and serve any evidence as directed, and adduced no admissible evidence at the hearing.

16Mr Keegan's uncontradicted evidence established the following.

17By email sent to the defendant at 4.55pm 15 April 2014 Mr Keegan served the process and related documents, being those described in the particulars in the Statement of Charge. The email included:

"In accordance with orders made by Harrison J yesterday, we attach, by way of service, sealed copies of those orders, together with our clients' notice of motion, statement of claim, affidavit sworn by Justine Munsie on 14 April 2014 and exhibits.
You will see that the proceeding has been listed for noon on Thursday 15 April before his Honour and there is a suppression order currently in place which prohibits the disclosure of any information about the proceeding (order 6).
Pleaser let me know if you have any questions or if you would like us to provide you with hard copies of the documents.
If you retain legal representatives please ensure they make contact with us prior to the return of the application on Thursday. "

18At the time he sent the email, Mr Keegan had a telephone conversation with the defendant in which he advised the commencement of these proceedings. He told the defendant that a suppression order had been made which prevented disclosure of the proceedings, and advised him to read the orders carefully. He referred to the documents sent with the email. He advised that the orders were interim, and the matter would be before Harrison J on Thursday, 17 April 2014 when he was expected to attend.

19At about 10am 16 April 2014 the defendant posted the article entitled "Kerry Stokes has Suppression Order put on Defamation Proceedings Against KCA Publisher" (Annexure A). He posted it on the Kangaroo Court website, and linked it to each of the documents served the day before. Mr Keegan used the links to access, read, and print the documents.

20At about 11.50am, 16 April 2014, the defendant published on his Twitter account tweets concerning the first plaintiff, the making of the suppression order, and the defamation proceedings against him (Annexure B). The tweets contained a link to the above-mentioned article which, in turn, was linked to, and made available, the documents.

21At about 12.30pm 16 April 2014 the defendant sent an email to the Chief Justice of New South Wales, and to seven other persons, including Mr Keegan, to whom it was copied (Annexure C). The email contained copies of the documents as well as a soft copy of the article.

22Furthermore statements were made to the Court by the defendant in the present proceedings which left me in no doubt that he published the article, the tweets and the email, as alleged (T p 64, 65, 66).

23Also relevant are the publications themselves. They demonstrate that they were composed by the defendant based upon a thorough analysis of all of the material in the proceedings with which he had been served. That the defendant was well aware of the scope of the suppression order and its significance is self evident from the contents of the publications. Each disclosed, and provided access to the public to, information about the existence of these proceedings; the pleadings; the relief claimed; evidence, including information which revealed the identity of the plaintiffs; the notice of motion; and orders of the Court made in these proceedings. In short, disclosure was made of the matters specified in order 6 with the exception (which the plaintiffs acknowledged) of those in sub-para (e) namely "any submission filed, read, or given in these proceedings".

24It is sufficient to refer to some examples.

25The article included:

"...The suppression order issued by Justice Harrison is one of the most dangerous documents I have ever read. It in effect says that I cannot tell anyone anything about Kerry Stokes's (sic) proceedings against me and I have to show up to court on Thursday.
...
Background
The defamation proceedings by Kerry Stokes and Justine Munsie relates to a post I published on the 23rd February 2014 titled 'Kerry Stokes, Channel 7 and lawyer Justine Munsie caught lying in the Schapelle Corby matter' (Click here to read the post). This is on top of a previous defamation threat by Mr Stokes in 2011 which he failed to follow with.
...
Documents - Make sure you save a copy
Affidavit of Justine Munsie and Kerry Stokes (Click here to read). Yes that is right, one affidavit for two people. It is worth noting they have written to Google, because if you Google Kerry Stokes one of my posts shows up on page 2. They say this in paragraphs 11, 12 and 13 of their affidavit.
Court Orders: (Click here to read). It reads as JM and KS v SD so no one knows who we are. Keep that in mind if you come to court to watch as that is all it will have on the court list I assume.
Notice of motion (Click here to read). Statement of Claim (Click here to read).
Exhibits (Click here to read).
Nowhere on court orders does it say that I can show a lawyer the documents to get legal advice. It shows Justice Harrison thinks he is above the law and can do what he wants as she knew the documents were not being sent to a lawyer but being emailed to me at home.
...
Kerry Stokes and his lawyers are harassing me and abusing the legal system to do so. For me to do nothing and cop it sweet encourages them to do it to others. Well I am not going to stand for it and Justice Harrison has a lot of questions he needs to answer. ...
There is a war going on for a true democracy free of the corruption we see in the media daily and Kerry Stokes is attacking one of the key fundamentals of achieving the gaol and that is free speech and using the free speech to out the corrupt people. The internet is the great equalizer and has empowered us all and Stoke and his kind do not like that.
...
We'll see what happens on Thursday or what action Kerry Stokes and Justine Munsie take.
Please use the Twitter, Facebook and email etc. buttons below and promote this post and let everyone know what Kerry Stokes is up to. If he gets away with it he and others will do the same again when they feel like it."

26The email included:

"Justice Harrison has issued suppression orders over defamation proceedings against me by billionaire media mogul Kerry Stokes.
...
I have dissected their conduct further in the attachment 'Kerry Stokes has suppression order put on defamation proceedings against KCA Publisher' which I have also published on my website 'Kangaroo Court of Australia'".

Determination

27The evidence satisfies me beyond reasonable doubt that the defendant was well aware of the terms of Order 6 made on 14 April 2014, and of its meaning and significance. I am also satisfied beyond reasonable doubt that, by making the publications, and each of them, the defendant disobeyed and contravened the prohibition against disclosure of each matter specified in order 6, with the exception of the matter identified in sub-para (e) thereof. I am also satisfied beyond reasonable doubt that the clear and obvious effect of the publications was to frustrate and render nugatory this order of the Court.

28With respect to the totality of the evidence, particularly as to the language of the article, the tweets, the email, and the information provided with those publications, I find it demonstrates beyond reasonable doubt that the defendant's failure to comply with Order 6 was wilful and contemptuous, and not merely casual, accidental, or unintentional.

29In short, I find the defendant acted in contravention of the Court's order, and I am satisfied beyond reasonable doubt that he is guilty of the charge of contempt of court as alleged in paragraph 4 of the Statement of Charge.

30Accordingly, I propose to make a declaration to the effect sought in paragraph 8 of the Notice of Motion.

31Should issues of penalty and costs arise, the parties will have the opportunity for making submissions on a date to be arranged through my Associate. However, any issue of penalty will require consideration of the application of Uniform Civil Procedure Rules, rule 40.7(3), which requires that the sealed copy of the judgment must bear a penal notice. In Westpac Banking Corporation v Burke [2011] NSWSC 549 (para 21) Bergin CJ in Eq considered that the options available to the Court in the exercise of its discretion in sentencing, if a finding of contempt is made, is limited if no notice has been served.

Declaration

32I make the following declaration:

It is declared that the defendant was in contempt of Court for breach of the orders of the Court made in these proceedings on Monday, 14 April 2014 pursuant to the Statement of Charge subscribed to the Notice of Motion filed 17 April 2014.

**********

 

Annuexures A, B and C

 

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 22 July 2014