Henderson v Harvey

1. [1]

   McHUGH JA: I agree with the orders proposed by Griffiths AJA and with his Honour’s reasons. I would add only the following, which assumes familiarity with those reasons and is not intended to qualify them, as to the form of the injunction said to have been breached. The order was made by consent in the following terms:

2. [2]

   First, although no ground of appeal went to this issue, something should be said about the words used to identify the prohibited conduct: “publishing any matter conveying the same or substantially similar imputations to the publications complained of”. That language is unsatisfactory. Order 6 did not identify any particular imputations, or even operate by reference to the imputations alleged in the statement of claim. Instead, the injunction referred to the imputations conveyed by the publications complained of, whatever they might be. But which imputations the publications in fact conveyed was an issue in the substantive defamation proceedings. The appellant thus would not know what conduct the injunction prohibited until after the event, when judgment was given in the substantive proceedings. Plainly, the parties should have paid greater attention to the form of order 6.

3. [3]

   Secondly, as Griffiths AJA demonstrates, the object of order 6 was to protect the integrity of the judicial process by preventing the appellant from influencing potential witnesses. The terms of order 6 were however wider than necessary to protect against potential interference with witnesses. While the breadth of the language used offers some support for the respondent’s construction of the order, in light of the contextual material to which Griffiths AJA points the appellant’s construction is to be preferred. The more general point is again that the parties should have paid greater attention to the form of order.

4. [4]

   GRIFFITHS AJA: The appellant, Mr Gary Henderson, appeals from orders and the judgment of Rothman J in Harvey v Henderson (No 2) [2025] NSWSC 764 (primary judgment or PJ). The primary judge found Mr Henderson guilty of contempt of Court in relation to a series of online messages and posts that he published in alleged breach of consent orders made by Sackar J on 17 September 2021.

Background to these proceedings

1. [5]

   On 8 December 2020, by statement of claim, Ms Laurae Harvey commenced proceedings in the Supreme Court against Mr Henderson and Ms Sara Tilling, seeking damages for alleged defamatory comments as well as orders enjoining the defendants from further publishing material that conveyed the same or substantially similar imputations to the publications which were the subject of the defamation proceedings (the substantive proceedings).

2. [6]

   On 15 September 2021, lawyers acting for Ms Harvey wrote to the defendants’ lawyers seeking consent to certain proposed interlocutory orders, including an order restraining the defendants, pending the hearing of the matter, from publishing any matter conveying the same or substantially similar imputations to the publications complained of. The parties’ solicitors exchanged emails concerning this proposed order. It will be necessary to say something more later about these exchanges because they provide important context for the proper construction of the relevant order. Ultimately, however, the defendants’ solicitor sent an email to the plaintiff’s solicitor on 16 September 2021 at 2.09pm, notifying him that her clients consented to the proposed restraining order.

3. [7]

   The following day, on 17 September 2021, Sackar J issued consent orders in the terms agreed upon by the parties’ solicitors (emphasis added):

4. [8]

   The substantive proceedings related to a series of online publications, comprised mostly of social media posts and emails by the defendants, which Ms Harvey alleged raised imputations that she was a fraud and misappropriated charitable funds donated to Wild2Free, a charity with which she was involved, for her own personal financial benefit and self-aggrandizement.

5. [9]

   The hearing of the substantive proceedings commenced on 15 April 2024 and continued with the taking of evidence until 30 April 2024. There was then an adjournment of about six weeks. The oral hearing concluded on 12 June 2024 with the making of closing addresses, at which time judgment was reserved. Twelve months later, on 12 June 2025, Rothman J published his reasons for judgment in the substantive proceedings (see Harvey v Henderson [2025] NSWSC 601). Judgment was given for the plaintiff, and the defendants were ordered to pay damages, interest and costs. They were also restrained from publishing on the internet or elsewhere material that repeated the imputations found to be defamatory.

6. [10]

   During the period when judgment was reserved, by notice of motion dated 17 October 2024, Ms Harvey prosecuted Mr Henderson alleging that he was in contempt of Court for breach of the consent orders made by Sackar J on 17 September 2021. Initially, Ms Harvey laid five charges against Mr Henderson. Ultimately, however, she did not press Charges 4 and 5 (which related to alleged breaches by Mr Henderson of the Harman undertaking). Consequently, only Charges 1, 2 and 3 were pressed and are relevant to this appeal.

7. [11]

   Prior to judgment being delivered in the substantive proceedings but after judgment was reserved in that matter, Mr Henderson published a series of posts online through social media. It is these posts which became the subject of Charges 1, 2 and 3 in the contempt proceedings before Rothman J. Each of the three charges pertained to three separate alleged breaches by Mr Henderson of order 6 of the consent orders dated 17 September 2021 (the terms of which are set out at [7] above).

8. [12]

   The publications the subject of Charges 1, 2 and 3 are summarised below.

9. [13]

   Charge 1 related to a Facebook message sent by Mr Henderson on 19 August 2024 to the Wandandian Macropad Rescue & Rehabilitation Centre which stated: “Enjoy having alook theough [sic] the scam Wild2Free lease arrangement”. Attached to this Facebook message was a copy of the lease between Ms Harvey and Wild2Free. Ms Harvey became aware of this Facebook message on 22 August 2024.

10. [14]

    Mr Henderson made two posts on the Facebook group, “The Cobargo/Bermagui Notice Board”, which together form Charge 2. The first is a comment on a post seeking volunteers, which says: “Can I rent my land to the charity for $50,000 a year like Laurie Harvey does?”. The second is an anonymous post, ascribed to Mr Henderson, which reads:

11. [15]

    Ms Harvey became aware of these posts on 4 and 5 October 2024.

12. [16]

    Charge 3 concerns three posts made by Mr Henderson on a Facebook page called “Beware of Wild2Free”. Ms Harvey became aware of this page on 8 October 2024.

13. [17]

    The first post was made on 2 October 2024 and states:

14. [18]

    The second post was again an anonymous post made on 5 October 2024 that was cast in similar terms to the anonymous post extracted above at [14].

15. [19]

    The third post was made on 10 October 2024 and reads as follows:

Primary judgment summarised

1. [20]

   The primary judge was satisfied beyond reasonable doubt that Mr Henderson had published the material which was the subject of the three charges.

2. [21]

   His Honour was also satisfied that each of the publications identified in those charges gave rise to imputations which were the same or substantially similar to the imputations in the publications complained of in the substantive proceedings. These findings are not challenged on appeal.

3. [22]

   The main issue in the proceedings below (and on appeal) is the meaning of the words in order 6, that the “Defendants be restrained, pending the hearing of this matter”. Does this mean that Mr Henderson was restrained until some point in time referable to the actual physical hearing itself or did the restraint extend beyond that period to the determination of the proceeding?

4. [23]

   The resolution of this issue involves the proper construction of the order. At [55]-[56], the primary judge summarised the principles guiding the construction of a consent order as follows:

5. [24]

   At [45], his Honour described Mr Henderson’s argument on construction as being that the restraining order applied only until 15 April 2024, when the hearing of the substantive proceedings commenced. As will be developed below, this was not an accurate summary of Mr Henderson’s argument.

6. [25]

   The primary judge viewed the principles of statutory construction set out by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 and SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 as being relevant to the construction of the order.

7. [26]

   In considering the context in which the restraining order was made, his Honour said at [60] that:

8. [27]

   As will be explained below, although correctly acknowledging the importance of context in construing the order, it is notable that the primary judge made no reference to the relevant correspondence exchanged between the parties’ legal representatives immediately preceding the making of order 6, which provides important context.

9. [28]

   At [61], the primary judge described the “objective intention” of the parties in the following terms:

10. [29]

    The primary judge reiterated his understanding of Mr Henderson’s argument on construction as one which claimed that the restraining order operated only until the hearing commenced and not beyond, an argument which his Honour rejected at [62]:

11. [30]

    Again, with respect, the primary judge misstated Mr Henderson’s argument on construction, a matter to which I will return below.

12. [31]

    Having rejected what the primary judge understood to be Mr Henderson’s argument on construction, his Honour concluded at [63] that the restraining order operated until the conclusion of the hearing, which his Honour identified as the time “when the Court issues the judgment resolving the justiciable controversy between the parties”.

13. [32]

    At [65]-[68], the primary judge turned his attention to the significance of the term “pending” in the context of the phrase “pending the hearing of this matter”. His Honour held that this meant until the “determination or finalisation” of the substantive proceedings, being the point in time when the judgment is delivered. His Honour viewed this construction as being supported by cases such as Salt v Cooper (1880) 16 Ch D 544; Green v Lord Penzance (1881) 6 App Cas 657 and R v The Archbishop of Canterbury (1859) 1 E & E 545; 120 ER 1014.

14. [33]

    For these reasons, the primary judge found that the publications the subject of Charges 1, 2 and 3 were in breach of order 6 and that the breaches were both voluntary and deliberate. Mr Henderson was thus held guilty of contempt on all three charges.

15. [34]

    On 10 October 2025, the primary judge made orders requiring the defendants in the substantive proceedings, jointly and severally, to pay the plaintiff’s costs on an indemnity basis, as well as interest (see Harvey v Henderson (No 3) [2025] NSWSC 1186).

16. [35]

    After a separate hearing on penalty on 17 October 2025 relating to the findings of contempt (see Harvey v Henderson (No 4) [2025] NSWSC 1203), the following orders were made:

17. [36]

    This Court was informed during the course of the appeal that Mr Henderson was paying the fine in instalments.

The appeal

1. [37]

   Mr Henderson raises the following seven grounds of appeal:

   1. (1)

      The primary judge erred in finding that order 6 continued to apply until the judgment was delivered in the substantive proceedings.

   2. (2)

      The primary judge erred in finding that there was an onus on the defendant to seek clarification from the Court as to his interpretation of order 6.

   3. (3)

      The primary judge erred in failing to find that order 6 should be given its natural and ordinary meaning.

   4. (4)

      The primary judge erred in making a finding as to the intention of the parties and the intention of the Court.

   5. (5)

      The primary judge erred in finding that the publications relating to Charge 3 were “threatening”, that they referred to the original lease, and that the applicant and his partner were members of the committee which approved the lease.

   6. (6)

      The primary judge erred by taking the word “pending” out of the context in which it was used in order 6 and instead applying it to the status of the substantive proceedings as a whole.

   7. (7)

      In the alternative to the above grounds of appeal, the primary judge erred in failing to find that order 6 was ambiguous.

Consideration and determination

1. [38]

   For the following reasons, although the relevant legal principles guiding the true construction of a consent order were generally correctly identified by the primary judge, I respectfully consider that his Honour erred in applying those principles to the circumstances here. In particular, I consider that his Honour erroneously failed to consider the exchange of correspondence by the parties’ respective solicitors which resulted in order 6 being made by consent. That correspondence was an important aid to construction because it formed a significant part of the relevant surrounding circumstances.

2. [39]

   I consider the relevant legal principles which guide the task of construction to be found in a series of Australian cases, including Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21; Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 and Bathurst Real Estate Pty Ltd v Fairbrother [2022] NSWSC 351 per Kunc J.

3. [40]

   The following principles may be extracted from those authorities:

4. [41]

   In the proceeding below, the plaintiff relied on an affidavit sworn on 17 October 2024 by her instructing solicitor, Mr Vasilios Kalantzis. Mr Kalantzis described and attached an exchange of correspondence between the legal representatives, culminating in the making of the consent orders on 17 September 2021. On 15 September 2021, the plaintiff’s solicitor emailed the defendants’ solicitor proposing certain orders relating to the case management of the substantive proceedings, as well as an order in the following terms which is at the heart of the proceedings:

5. [42]

   Importantly, the email contained the following statement by the plaintiff’s solicitor regarding the need for, and purpose of, proposed order 6 (emphasis added):

6. [43]

   This explanation regarding proposed order 6 provides important context. It highlights the fact that insofar as the plaintiff was concerned, order 6 was required in order to promote the due administration of justice by restraining the defendants from seeking to influence persons who were identified as being witnesses or potential witnesses in the proceeding. The clear object of the proposed restraining order, which must have been equally apparent to the defendants having regard to the explanation provided by the plaintiff’s solicitor, was to protect the integrity of the legal proceedings and the judicial process.

7. [44]

   By an email sent on the morning of the following day (16 September 2021), the defendants’ solicitor informed the plaintiff’s solicitor that her clients consented to all orders except for proposed order 6, in relation to which she was seeking instructions but did not presently consent to.

8. [45]

   Later, on 16 September 2021 (after receiving a further email from the plaintiff’s solicitor indicating that if proposed order 6 was not consented to, the directions hearing proposed for the following day would have to proceed), the defendants’ solicitor stated that she was instructed that her clients consented to proposed order 6.

9. [46]

   As noted above, the six consent orders were made by the Court on 17 September 2021 and the directions hearing was vacated.

10. [47]

    It is regrettable that there is no reference to this correspondence in the primary judgment. It casts a different light on the purpose of order 6 which was not so much to call a “ceasefire” and avoid further damage being created pending the resolution of the issues in dispute, as found by the primary judge, but rather to restrain the defendants from seeking to influence actual or potential witnesses who would or might give evidence for the plaintiff at the substantive hearing.

11. [48]

    Viewed in this context, the reference to the defendants being restrained “pending the hearing of this matter” focuses attention on the period when there was a need to prevent improper interference with the administration of justice by the defendants seeking to influence actual or potential witnesses for the plaintiff. That period would operate up until the parties had closed their respective cases (including any case in reply by the plaintiff). At this point in the proceedings, all the plaintiff’s witnesses would have been excused.

12. [49]

    These important surrounding circumstances, which were known to all the parties, sit uncomfortably with the primary judge’s construction of the phrase “pending the hearing of this matter”, which has the order operate beyond the actual conduct of the hearing involving the taking of evidence and until final judgment is delivered.

13. [50]

    I do not accept the respondent’s contention that, in construing the phrase “pending the hearing of this matter”, allowance needs to be made for the possibility that one or other of the parties may have sought leave to re-open their case after judgment was reserved. The respondent was unable to point to anything which indicated that this possibility was anything more than entirely hypothetical in the present case. Nor is there any suggestion in the evidence relating to the circumstances surrounding the making of the relevant order on 17 September 2021 to indicate that the parties mutually contemplated that there might be a need for leave to be sought to re-open and adduce further evidence after judgment was reserved.

14. [51]

    For the following reasons, I do not accept the respondent’s submission that the argument on construction presented by Mr Henderson on the appeal was not sufficiently advanced by him at trial.

15. [52]

    It is to be recalled that Mr Henderson represented himself both below and on the appeal. At the trial, he relied on his affidavit filed 13 May 2025. Paragraph 10 of that affidavit is directed to order 6. In its entirety the paragraph states (without alteration and with emphasis added):

16. [53]

    In the final sentence to [10], Mr Henderson deposed that he was “obviously aware the matter had been heard during April and June 2024”. It will be recalled that the hearing was conducted from 15 to 30 April 2024 for the taking of evidence and there was a gap of approximately six weeks before closing submissions were made on 12 June 2024, at which time judgment was reserved.

17. [54]

    It is notable that, in the primary judgment at [39], the primary judge refers to the penultimate sentence of this part of Mr Henderson’s affidavit but omits any reference to the final sentence in which Mr Henderson stated his awareness that the matter had been heard during April and June 2024. This omission may have led his Honour to believe Mr Henderson’s position was that the phrase “pending the hearing of this matter” simply meant up until the time the hearing commenced, a proposition which his Honour addressed and rejected in strong terms at [62] and [63] of his reasons for judgment (see at [29] and [31] above).

18. [55]

    But that does not accurately describe Mr Henderson’s position. If there was any uncertainty as to his position despite what is stated at [10] of his affidavit, Mr Henderson made clear in his further written submissions below dated 9 June 2025 that he considered that the reference to “the hearing of this matter” covered the period of the hearing between 15 and 30 April 2024 and also extended to the making of final submissions (final oral submissions actually occurred on 12 June 2024 and not 21 June 2024 as appears in the passages below and the same error occurs in the respondent’s chronology in the appeal). Thus, at [6] and [7] of those submissions, Mr Henderson contended (without alteration):

19. [56]

    Having regard to the relevant parts of Mr Henderson’s affidavit and written submissions below, it is clear that he urged the Court to adopt a construction of order 6 which limited its operation to the Court’s physical hearing of the matter and not operating until final judgment was published. It is true that, on one reading of Mr Henderson’s material, he urged the Court to adopt a construction of the phrase “pending the hearing of this matter” which would see the order operating up until the hearing of closing addresses, which is a longer period than that which would confine the notion of “hearing” to the closing of the parties’ evidentiary cases. But as the following exchange between the Court and Mr Henderson on the appeal indicates, he adopted a narrower construction after his attention was drawn to the exchange of correspondence outlined above:

20. [57]

    I understood Mr Rasmussen of counsel, who represented the plaintiff at the trial and the respondent on the appeal, ultimately accepted that Mr Henderson had sufficiently raised below a construction of order 6 which had the order operate up until the parties had closed their evidentiary cases.

21. [58]

    The respondent contended that the primary judge’s construction was supported by the English authorities referred to at [32] above, as well as by Rees J’s decision in Re Austral Bronze Pty Ltd (No 2) (2020) 149 ACSR 221; [2020] NSWSC 1633. For the following reasons, that contention should not be accepted.

22. [59]

    Salt involved the question whether an action is a “cause or matter pending” within the meaning of s 24(7) of the Supreme Court of Judicature Act 1873, 36 & 37 Vict c 66, which provided:

23. [60]

    Jessel MR described the provision as being in “very large terms”. It was held that in an action by a creditor against a debtor in which the plaintiff had obtained final judgment, the Court had power under s 24(7), in order to satisfy the judgment, to grant equitable execution against the defendant by appointing a receiver and that it was unnecessary to bring another action for that purpose.

24. [61]

    Self-evidently, the circumstances in Salt are far removed from those here and relevant considerations of context and purpose are entirely different.

25. [62]

    Turning to Lord Penzance, the House of Lords was required to construe s 9 of the Public Worship Regulation Act 1874, 37 & 38 Vict c 85, which provided for a Judge to be appointed to hear and determine a representation made against a clerk or rector of a parish for offences against s 8 of that Act. Section 9 provided that the Archbishop shall “require the Judge to hear the matter of the representation at any place within the diocese or province, or in London or Westminster”. It was argued that the determination of the matter ought not to have occurred at Westminster but rather within the jurisdiction of the Provincial Court of York where the representation was made.

26. [63]

    The determination of the matter occurred at Westminster as directed by the Archbishop. The Lord Chancellor, Lord Selborne, held that s 9 should be construed broadly so that “to hear” comprised the whole determination of the matter, with all its necessary antecedents and proper consequences. Although Lord Selborne noted that the Judge had to do various things before the actual hearing was conducted, including making orders as to evidence and the attendance of witnesses, and those things may not technically be part of the hearing, they were nevertheless included in the authority of the Court to hear and determine the matter.

27. [64]

    Once again, the circumstances in Lord Penzance are far removed from those here. Those circumstances related to the conferral of jurisdiction on a Court and the authority of the Court to decide an issue. The danger of relying on what was said in Lord Penzance in the very different circumstances here, involving the proper construction of a consent order, is highlighted by the well-established principle that, in construing provisions conferring jurisdiction or granting powers on a court, it is “quite inappropriate” to make implications or impose limitations which are not found in the express words of the provision (see, for example, Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Kain v R&B Investments Pty Ltd (2025) 99 ALJR 1138; [2025] HCA 28 at [16] per Gageler CJ).

28. [65]

    There was also a very different context in The Archbishop of Canterbury. The issue there related to the right of a curate whose licence has been revoked by the Bishop under a statutory provision, to appeal to the Archbishop who was statutorily bound “to hear the said appeal, and decide the merits thereof”. The Reverend Baring lodged an appeal against the revocation of his licence after the Bishop made adverse findings that he had inappropriately questioned female parishioners “on the subject of violations of the seventh commandment”. The Bishop described the curate’s conduct as revealing a “dangerous tendency”.

29. [66]

    The curate exercised his right of appeal to the Archbishop and specifically asked for a time and place to be appointed at which he could be heard and adduce evidence in support of his case. No such hearing was afforded to the curate. The Archbishop was content merely to confirm the revocation decision based on the papers. Unsurprisingly in these circumstances, the Court found that the curate had been denied a hearing because the Archbishop had failed to conduct a judicial inquiry as contemplated by the statute.

30. [67]

    Finally, there is Rees J’s judgment in Austral Bronze. Once again, in contrast with the circumstances here, the issue was one of the jurisdiction of a body (in this case, the Dust Diseases Tribunal). Section 10 of the Dust Diseases Tribunal Act 1989 (NSW) conferred exclusive jurisdiction on the Tribunal “to hear and determine” proceedings referred to in ss 11 and 12. Her Honour stated at [103]:

31. [68]

    Her Honour’s reference to the possibility of “a delimiting context” is important. For the reasons given above, the circumstances surrounding the making of order 6 in the present proceeding provide a significant “delimiting context”.

32. [69]

    For all these reasons, I consider that the primary judge erred in his construction of order 6. When regard is had to the text, context, and purpose of the order, the phrase “pending the hearing of this matter” on its proper construction refers to the duration of the physical hearing before the Court from 15 to 30 April 2024, at the completion of which the parties’ evidentiary cases were closed. Order 6 did not operate thereafter and include, for example, the publication of his Honour’s reasons for judgment.

33. [70]

    Even if that not be the true meaning of order 6, I consider that the appeal should be allowed on the alternative basis that order 6 is ambiguous.

34. [71]

    The ambiguity relates to the fact that, having regard to the alternative constructions outlined above, there is a real doubt about what order 6 truly means. As stated in Pang at [56]:

35. [72]

    I have no hesitation in finding that if the true meaning of order 6 is not that described above, a person required to comply with order 6 could be in real doubt as to what the consent order meant (see also Kirkpatrick at [55]).

36. [73]

    As the following exchange reveals, the respondent’s counsel properly acknowledged that, if order 6 was ambiguous, Mr Henderson should not have been found guilty of contempt and the relevant orders should be set aside:

(f) Conclusion

1. [74]

   For all these reasons, I consider that the appeal should be allowed. I understood the parties to agree that this would require the setting aside of the orders dated 17 July 2025 and 17 October 2025, including the declaratory orders dated 17 July 2025 and the orders dated 17 July 2025 and 17 October 2025 finding the appellant guilty of contempt and convicting him of Charges 1, 2 and 3 as set out in the notice of motion dated 17 October 2024. It was also common ground that there should be no order as to costs of either the trial or the appeal. I also understood the respondent not to oppose an order which would have the money paid to date by Mr Henderson in respect of the $10,000 fine being reimbursed together with any accrued interest (see Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72 at [32]-[33] per Campbell JA, Handley AJA and Harrison J agreeing).

2. [75]

   I propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the orders dated 17 July 2025, 17 October 2025, including the declaratory orders dated 17 July 2025 and the orders dated 17 July 2025 and 17 October 2025 finding the appellant guilty of contempt and convicting him of Charges 1, 2 and 3 as set out in the notice of motion dated 17 October 2024.

   3. (3)

      In lieu thereof, there be no order as to costs of either the proceedings below or on appeal, with the intention that the parties each bear their own costs.

   4. (4)

      Order that the appellant be reimbursed the money he has paid to the Registry in respect of the $10,000 fine, together with any accrued interest.

3. [76]

   HARRISON AJA: I agree with Griffiths AJA.