Tate v Duncan-Strelec

These proceedings are the second set of contempt proceedings to come to judgment between these parties.

The Plaintiff, Thomas Tate, is the current Mayor of the Gold Coast and has held that position since April 2012 (the “Plaintiff”). The Plaintiff is also a property developer and tourism industry operator on the Gold Coast. The Defendant, Amanda Duncan-Strelec (the “Defendant”), was formerly Mayor of Albury. She met the Plaintiff in 1999 when the Defendant was the Plaintiff’s campaign manager in his first, unsuccessful, campaign to become Mayor of the Gold Coast. The Plaintiff and the Defendant became friends and were also business partners.

The relationship soured after the parties entered into a commercial project together to develop land at Lavington in New South Wales. In 2006, the Defendant, her husband, David Strelec, and a company of which they were then directors, Dunlec Pty Ltd, commenced proceedings against the Plaintiff, his wife and a company of which the Plaintiff was a director, Wamego Pty Ltd, and asserted various claims regarding the development of the land.

Those proceedings were heard by Nicholas J. By a judgment delivered on 6 August 2010 his Honour dismissed the claim. The Defendant and her co-plaintiffs were ordered to pay the Plaintiff’s costs and those of his wife and Wamego Pty Ltd. The Defendant and her co-plaintiffs did not appeal from this judgment.

The costs orders made by Nicholas J were enforced with the result that Dunlec Pty Ltd was wound up in April 2011 and the Defendant and her husband were made bankrupt in June 2012.

On about 17 June 2013, the domain www.tomtatescam.com (the “Previous Domain”) was registered. Shortly thereafter a website (the “Previous Website”) was published at the Previous Domain containing information and commentary on the proceedings heard by Nicholas J. One thing the Previous Website did not include was a copy of his Honour’s judgment.

On 9 August 2013, the Plaintiff commenced proceedings in respect of the Previous Website for defamation and contempt. The Court ordered those different claims to be separated and on 5 December 2013 the Plaintiff filed a fresh summons and statement of charge in respect of the claims of contempt.

Those first contempt proceedings were heard by Bergin CJ in Eq. The Defendant appeared in person. Her Honour was satisfied beyond reasonable doubt that, despite the Defendant’s denials, the Previous Domain and Previous Website were controlled by the Defendant and that the Defendant:

Her Honour found the Defendant guilty of contempt and sentenced her to be of good behaviour for a period of 12 months from 10 March 2015.

The Plaintiff discontinued the separate defamation proceedings on 21 August 2015.

These reasons should be read with:

The Defendant’s sentence to be of good behaviour came to an end in March 2016. These proceedings concern:

The Reprobate Website contained material that was either identical or substantially similar to the material which was considered in the Contempt Judgment. Those similarities are demonstrated by Schedule A to these reasons, which include references to where like passages were dealt with in the Contempt Judgment. It is the extent of those similarities that primarily informs the Court’s conclusions in these proceedings.

After orders were made by this Court (see paragraph [24] below), the Reprobate Website and the Go Fund Me Website ceased to be accessible from on or about 26 March 2018.

The four charges in these proceedings are:

The Court is satisfied beyond reasonable doubt, for substantially the same reasons as those set out in the Contempt Judgment, that the Defendant was the publisher of the Reprobate Website and the Go Fund Me Website (including the Go Fund Me Campaign) and that she is guilty of each of the four charges.

Where there were passages on the Reprobate Website that were identical or substantially identical to those considered in the Contempt Judgment and were the subject of express findings in the paragraphs of the Contempt Judgment set out in Schedule A, I respectfully adopt and make the same findings in relation to the same passages on the Reprobate Website. This relates to the passages identified in sections 6, 8, 12, 13, 14, 17 and 18 of Schedule A. Furthermore, although not repetitive of the Previous Website, I find:

In reaching the conclusion set out in paragraph [16] above, particularly in circumstances where there was no appearance for the Defendant, I have steadfastly borne in mind these propositions (which were not disputed by the Plaintiff):

I have carefully reviewed the evidence of the websites’ content so as to appreciate the context of the material to which the Plaintiff drew particular attention. In doing so, I have also borne in mind that the outcome of the First Contempt Proceedings was not necessarily conclusive of the outcome of these proceedings, although it will be a matter that I expect the Court will be invited to take into account on penalty.

At the hearing before me the Plaintiff was represented by Ms G.R. Rubagotti of Counsel. The Defendant did not appear and was not represented at the hearing. Ms Rubagotti provided detailed written and oral submissions which, together with the evidence adduced by the Plaintiff, I accept, and which I have substantially adopted as the basis of the Court’s reasons below.

These proceedings were commenced on 22 March 2018 by a summons dated 21 March 2018, which was supported by the affidavit of Scott David Eustace dated 21 March 2018, the affidavit of Rodney David McKemmish dated 15 March 2018 and a statement of charge dated 22 March 2018.

The summons sought:

By a separate notice of motion filed on 22 March 2018 the Plaintiff sought interlocutory injunctions restraining the Defendant from, among other things, publishing or promoting the Reprobate Website at the Reprobate Domain or the Go Fund Me Website.

That application was heard by Hallen J on 22 March 2018. His Honour granted this interlocutory relief:

The operation of these interlocutory injunctions was extended on 27 March 2018, 15 May 2018 and again on 22 May 2018. By the last-mentioned order, the injunctions were extended until further order of the Court.

On 22 May 2018, the Defendant (who did not appear) was ordered to file any evidence in answer by 19 June 2018. A copy of the Court’s order was provided to the Defendant by email on 22 May 2018.

On 24 July 2018, the Court ordered that by 31 July 2018 the Defendant file an affidavit setting out:

On 30 July 2018, the Defendant filed an affidavit (the “Defendant’s Affidavit”) describing her occupation as “retired” and included these paragraphs that were tendered at the hearing before me by the Plaintiff:

On 1 August 2018, these proceedings were again before the Court. The Defendant did not appear. Orders were made setting down the proceedings for hearing on 30 and 31 January 2019, for the Defendant to file any evidence by 26 October 2018 and to file written submissions by 7 December 2018. The Plaintiff’s lawyers informed the Defendant of these orders by email on 1 August 2018. Other than the Defendant’s Affidavit, the Defendant has filed neither evidence nor submissions.

At the commencement of the hearing before me, the Plaintiff filed the affidavit of his solicitor, Mr Scott David Eustace, sworn 29 January 2019. Mr Eustace’s affidavit attached copies of unanswered emails sent by him to the Defendant on 18 December 2018 and 16 January 2019 enquiring whether the Defendant would be appearing at the hearing on 30 and 31 January 2019. A further unanswered email of 25 January 2019 noted that the Defendant had not indicated if she would appear and put the Defendant on notice that orders may be made in her absence if she did not appear. There was no appearance for the Defendant when the matter was called on for hearing before me.

On 24 November 2016, a party, prima facie unknown to the Plaintiff, caused the Reprobate Domain to be created and registered. By letter of instruction dated 21 February 2018, the Plaintiff’s solicitor retained Mr Rodney McKemmish, a forensic technology specialist, to prepare an expert forensic report in relation to websites published at the domain names “tomtatereprobate.com” and “gofundme.com/the-pursuit-of-justice”. Mr McKemmish was asked to address the following issues:

Mr McKemmish furnished his report to the Plaintiff’s lawyers on 14 March 2018 (the “Forensic Report”). In the executive summary to the Forensic Report, Mr McKemmish concluded, and the Court accepts, that “The domain name “TomTateReprobate.com” is registered with Ventra IP Pty Ltd, who also currently host the website linked to “TomTateReprobate.com”. The owner of the domain is marked as “Private”. This conceals the Registrant’s identity.”

The Executive Summary to the Forensic Report also included the following:

On the first day of the hearing I asked Ms Rubagotti if her client had evidence that the Defendant was in fact the owner of the named “TomTateReprobate.com” domain and website. The following exchange took place (T6:18-47):

At some stage, the Reprobate Website was published at the Reprobate Domain Name. The home page for the Reprobate Website contained the following text:

As at 20 March 2018, the Reprobate Website included a link to the Go Fund Me Website. A print out of the first three pages of the Go Fund Me Website is Schedule B to these reasons.

The Go Fund Me Website appeared to have been created on 7 January 2017. Mr McKemmish reported, and the Court accepts, that “The GoFundMe “The Pursuit of Justice” campaign was managed by a user account in the name of “Amanda Duncan”.” It appeared to have attracted donations from as early as 14 months before March 2018 i.e. January 2017.

As is set out in items 1 to 22 of Schedule A, the Reprobate Website substantially repeated the publication which gave rise to the First Contempt Proceedings.

The following matters arise:

The Plaintiff accepted that if the Court found the Defendant guilty of any of the charges, it would be appropriate for the Defendant to be heard on the question of the orders to be made and, in particular, penalty.

As was apparent from the Forensic Report, the identity of the Reprobate Domain holder was not publicly available. The person who caused the registration to be recorded enabled domain privacy protection thus preventing the disclosure of identifying information. Nevertheless, for the reasons which follow, the Court accepts the Plaintiff’s submission, and is satisfied beyond reasonable doubt, that the Defendant caused the registration of the Reprobate Domain and the creation of the Go Fund Me Website, and at all times had control over the information published on the Reprobate Website and the Go Fund Me Website.

The Defendant’s responsibility for the content of the Reprobate Website and Go Fund Me Website was apparent from what I accept was an admission contained in her email to the Plaintiff’s solicitor dated 9 July 2018, being after the commencement of these proceedings (emphases added):

In addition to the foregoing, the Court also infers from the following matters that the Defendant is responsible for publishing the Reprobate Website.

First, on 22 March 2018, the Plaintiff’s solicitor notified the Defendant of the Court’s orders granting interlocutory relief against her (see paragraph [24] above setting out Hallen J’s orders).

On 26 March 2018, the Defendant responded in an email stating:

I accept Mr McKemmish’s unchallenged evidence in the Forensic Report that the only persons capable of causing the publication of the Reprobate Website and the Reprobate Domain to cease are the owner of the Reprobate Domain or Ventra IP Pty Ltd (“Ventra IP”) as the Reprobate Domain registrar and Reprobate Website hosting service provider. Similarly, the only persons capable of terminating the publication of the Go Fund Me Website were the ‘GoFundMe’ business or the account owner for the Go Fund Me Website.

On 22 March 2018 the Plaintiff notified Ventra IP of the Court’s interlocutory order and on the same day received confirmation from Ventra IP that the Reprobate Website had been disabled. However, it took no such steps to notify the ‘GoFundMe’ business, but it was the Defendant who reported that the Go Fund Me Website had been taken down.

In these circumstances, the Court infers that the Defendant was the account owner for the Go Fund Me Website and therefore also the owner of the Reprobate Website with which it was mutually linked.

Second, I regard the fact that the large extent to which the Reprobate Website contained material that was substantially identical to that contained in the Previous Website as being highly probative of the Defendant’s responsibility for the Reprobate Website. As I have already noted, selected extracts of both websites that are sufficient to demonstrate the similarities are reproduced at items 1 to 22 of Schedule A together with a paragraph reference where the extract was considered by the Court in the Contempt Judgment (where applicable).

Bergin CJ in Eq accepted in the Contempt Judgment that the Previous Website was published or caused to be published by the Defendant (see paragraph [8] above). The Court infers from the substantial similarity of content as shown in items 1 to 22 of Schedule A, that the Defendant is also the publisher of the Reprobate Website.

Third, the Court relies on the content of the Reprobate Website to the extent that, similarly to the Previous Website:

Fourth, there were statements contained on the Reprobate Website which appeared to be directly written by the Defendant and related specifically to her grievances with the Plaintiff:

Fifth, on 30 January 2017 the user of a Facebook account operating under the name ‘Amanda Duncan’ posted a link to the Reprobate Website on a third party’s Facebook page entitled “Save our Spit”. That post was accompanied by a message stating:

The Plaintiff’s solicitor has given evidence, which I accept, that he recognises the profile photo on this Facebook page as being a picture the Defendant, the solicitor having previously seen the Defendant in Court when acting for the Plaintiff in the Lavington Proceedings and the First Contempt Proceedings.

In addition to the Defendant’s admission extracted at [42] above, the Court also finds the Defendant was the owner, or otherwise responsible for, the Go Fund Me Website by reason of the following matters.

First, as I have set out at paragraphs [47] and [48] above, in circumstances where the Defendant confirmed on 26 March 2018 that the Go Fund Me Website had been disabled without any steps having been taken by the Plaintiff’s solicitors to contact the ‘GoFundMe’ business, it can be inferred that the Defendant was the account holder for the Go Fund Me Website.

Second, the Court takes into account the many instances in which the Go Fund Me Website attributed its creation to a person with the Defendant’s name, either in full or abbreviated form, including:

Third, the Go Fund Me Website contained content that, similar to the Reprobate Website and Previous Website, related specifically to the Defendant and her grievances with the Plaintiff:

Fourth, the Go Fund Me Website was created on about 7 January 2017 and it appears on 8 January 2017 a link to it was posted to the Facebook page for ‘Amanda Duncan-Strelec’. The Plaintiff’s solicitor recognises the woman depicted on this second Facebook page as the Defendant.

Fifth, the Go Fund Me Website and Reprobate Website both contained on their home pages links to each other. This further supports an inference that they had a common creator or owner.

By reason of all of the matters set out in above, I am satisfied beyond reasonable doubt and find that the Defendant is the publisher of the material appearing on the Go Fund Me Website including the Go Fund Me Campaign and also the Reprobate Website located at the Reprobate Domain.

It is convenient to consider the first and third charges together.

The first charge is:

The third charge is:

The Plaintiff has made out the various particulars to the charges and the Court finds accordingly. For the reasons which follow the Court is satisfied beyond reasonable doubt and finds that in publishing the Reprobate Website, registering the Reprobate Domain and publishing the Go Fund Me Campaign, the Defendant has engaged in conduct calculated to exact a reprisal against the Plaintiff for his having successfully defended the Lavington Proceedings and having obtained a costs order in his favour against the Defendant, her husband and their company. The Defendant sought to effect the reprisal by exposing the Plaintiff to hatred, ridicule and contempt.

Acts of reprisal against a witness, taken after litigation has concluded, are capable of constituting a contempt: Attorney-General v Butterworth [1963] 1 QB 696 (“Butterworth”). Denning LJ held (at 719):

Similarly, acts of reprisal against a successful party, taken after litigation has concluded, are capable of constituting a contempt: Clarkson v The Mandarin Club Ltd and Others [1998] FCA 1685; (1998) 90 FCR 354 (“Clarkson”); Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 per Young CJ in Eq at [37]-[38] (“Yeshiva”).

In Clarkson, Burchett J considered whether the suspension of the applicant’s club membership by the respondent company constituted a contempt of court, it being an act done in reprisal for the applicant having sought (with some success) a determination by the Federal Court of his rights as against the club.

After considering a number of authorities including Butterworth, Burchett J held (at 362B, 367B-C) that if some action having an actual tendency to interfere with the administration of justice (including deterrence of a party) is taken with the motive or intent of so interfering, that tendency and that motive or intent may be enough to establish contempt of court. His Honour said (at 367C):

In this case, the Plaintiff was both a witness in and a party to the Lavington Proceedings.

In the Contempt Judgment, Bergin CJ in Eq accepted that the law of contempt extends to acts of reprisal against parties, and not just witnesses, a conclusion which I respectfully adopt and apply in these proceedings. Her Honour said:

In my view there can be no reasonable doubt that the Defendant’s publication of the Reprobate Website, registration of the Reprobate Domain and publication of the Go Fund Me Website was calculated to exact a reprisal against the Defendant for his having successfully defended the Lavington Proceedings. The Reprobate Website was substantially devoted to the Defendant’s grievances regarding those proceedings.

The Go Fund Me Campaign on the Go Fund Me Website was self-evidently a tool being used to further promote and direct internet users to the Reprobate Website and to attract donations in order to help fund and realise the Defendant’s reprisal. Lest there be any doubt, the Defendant identified expressly on the Go Fund Me Website what was the purpose of the Go Fund Me Campaign (see Schedule B):

Having expressed that conclusion, I must immediately add that if all the Defendant had done was publish the Go Fund Me Campaign on the Go Fund Me Website and not the Reprobate Website, I would not have been satisfied that the third charge had been made out. The Plaintiff may have had an action for defamation, but that is a different matter.

In the Contempt Judgment (at [138]) Bergin CJ in Eq made this, with respect, essential observation about the Court’s approach to cases such as the case at bar:

It is a fundamental feature of our democracy that decisions of the Court are open to criticism. That criticism can be calm or strident and informed or uninformed. There is nothing contemptuous in a disappointed litigant expressing their strong disagreement with the Court’s decision, including as part of an approach to the public for assistance to help finance an appeal. However, a disappointed litigant can cross the Rubicon into contempt depending on what the litigant says about why they disagree with the judgment and whether or not they are acting in good faith. Every case will turn on its own facts. However, in the present case the cross-referencing between the sites leaves no room for reasonable doubt about the proposition that the Go Fund Me Campaign was an integral part of the Defendant’s conduct in seeking to visit a reprisal on the Plaintiff for his success in the Lavington Proceedings.

The second charge is:

The fourth charge is:

The Plaintiff has made out the various particulars to the second and fourth charges and the Court finds accordingly. For the reasons which follow the Court is satisfied beyond reasonable doubt and finds that in publishing the Reprobate Website, registering the Reprobate Domain and publishing the Go Fund Me Campaign, the Defendant acted with the aim of lowering the authority of the Court as a whole, or that of its judges, in a manner thus calculated to impair public confidence in the Court and its judicial determinations.

First, the Reprobate Website included the statements reproduced at items 2, 3, 5, 6, 8-10, 12-18, 20, 22 and 23-28 of Schedule A about the judicial system including a detailed analysis of Nicholas J’s conduct in the Lavington Proceedings. This included the following statement to the effect that the Defendant was forced by Nicholas J to continue with the hearing against her wishes (see item 18 in Schedule A – emphasis added):

As I set out in paragraphs [93] to [95] below, I accept (as Bergin CJ did in the Contempt Judgment) the Plaintiff’s submission that this statement is a serious misrepresentation of Nicholas J’s conduct. This misrepresentation was a matter on which Bergin CJ in Eq based her finding of contempt (Contempt Judgment at [208] to [211]).

Second, the Reprobate Website published a copy of the transcript of the Lavington Proceedings. This gave the statements made on the Reprobate Website an air of authority that they otherwise would not have, by conveying the impression that those statements were supported by documentary evidence. Similarly, the Reprobate Website published documents obtained from the Tate parties in the course of the Lavington Proceedings. However, the Reprobate Website failed to publish the Primary Judgment which detailed the reasons why the Defendant lost those proceedings. I accept the Plaintiff’s submission that the omission of the Primary Judgment supports the conclusion – which I draw – that the Plaintiff’s intention on the Reprobate Website was to present a one-sided and highly critical view of what happened in the Lavington Proceedings.

The Court therefore accepts the Plaintiff’s submission that the Reprobate Website was calculated to:

The Court is satisfied beyond reasonable doubt that the Defendant’s publication of the Reprobate Website, the Reprobate Domain and the Go Fund Me Website was aimed at lowering the authority of the Court as a whole (or that of its judges) and in a manner calculated to impair public confidence in the Court and its judicial determinations. The Defendant’s publications on those websites therefore ‘scandalise’ the Court: R v Gray [1900] 2 QB 36 at 40 per Lord Russell of Killowen CJ referred to in McGuirk v University of New South Wales [2009] NSWSC 1058 per James J at [243] (“McGuirk”).

As a statement of the offence of scandalising the Court, the observation of Rich J (with whom Evatt and McTiernan JJ agreed) in R v Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 at 442 (“Dunabin”) (quoted with approval by Gleeson CJ and Gummow J in Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 at 390) is the locus classicus. Rich J observes:

The reference to “calculated” in the above passage does not mean “intended.” It means that, when viewed objectively, the relevant conduct is likely, or has a tendency, to impair confidence in the administration of justice and to lower the authority of the Court or a judge of the Court: R v Hoser and Kotabi Pty Ltd [2001] VSC 443 at [40] cited with approval in McGuirk at [245].

More recently in Mahaffy v Mahaffy [2018] NSWCA 42; (2018) 97 NSWLR 119 (“Mahaffy”) Simpson JA (with whom Payne JA and Emmett AJA relevantly agreed) after reviewing a number of authorities recorded this summary at [209] which I respectfully adopt and apply:

Relevant considerations identified by their Honours are:

A publication that tends to disparage the authority of the Court (such as a publication containing abusive criticism of a court’s decision) may constitute contempt even where it is made after a case has concluded: Yeshiva per Young CJ in Eq at [49] relying on Dunbabin.

As noted in Mahaffy, in determining whether a statement tends to lower the authority of the Court, the extent of the publication of the statement is relevant. As the learned authors of Borrie & Lowe, Law of Contempt (3rd ed 1996) state (at 338) :

In this case, the Reprobate Website – which by its nature was published to the widest possible audience – imputed unfairness and lack of impartiality to the Court and Nicholas J, in particular. It asserted that individuals, and in particular, self-represented litigants, before the Court cannot expect to receive a fair hearing. So much appeared from:

The evidence demonstrates that the Reprobate Website in fact had the effect of exciting public misgivings as to the integrity, propriety or impartiality in the exercise of judicial office (Mahaffy at paragraph [87] above). I infer this from the fact that as at 20 March 2018, the Go Fund Me Website (which first directs users to the Reprobate Website) recorded the receipt of 16 donations, including one from a user identified as ‘Lou Underwood’ who left the following comment:

One further matter warrants particular attention (see paragraph [81] above]. On the Reprobate Website the Defendant stated that she had considered appealing from the Lavington Proceedings on the basis of:

The relevant exchange between the Defendant and Nicholas J in the Lavington Proceedings is at T136.10-137.10 on 29 June 2010:

The Court accepts the Plaintiff’s submission that the Defendant has – again – seriously misrepresented the conduct of Nicholas J in the Lavington Proceedings. Bergin CJ in Eq held accordingly in the Contempt Judgment at [208] to [211]. The fact that the Defendant has repeated what was written on the Previous Website in the face of Bergin CJ in Eq’s finding fortifies me in the conclusion which I have reached beyond reasonable doubt that the Defendant intended to impair confidence in the administration of justice and to lower the authority of the Court or a judge of the Court. That same circumstance – repeating comments found to have been false and contemptuous in the First Contempt Proceedings – enables me to conclude, as I do, that that the Defendant was acting mala fides in publishing the Reprobate Website, the Reprobate Domain and the Go Fund Me Campaign on the Go Fund Me Website.

The foregoing is sufficient to explain the Court’s conclusion on the second charge. Insofar as the fourth charge is concerned, in relation to the Go Fund Me Campaign, the publication of that campaign on the Go Fund Me Website was self-evidently a tool being used to further promote and direct internet users to the Reprobate Website. In the present case, the cross-referencing between the sites leaves no room for reasonable doubt about the proposition that the Go Fund Me Campaign was an integral part of the Defendant’s conduct which was likely, or has a tendency, to impair confidence in the administration of justice and to lower the authority of the Court or a judge of the Court.

As with the third charge, having expressed the view set out in the preceding paragraph, I again add that if all the Defendant had done was to publish the Go Fund Me Campaign on the Go Fund Me Website and not the Reprobate Website, I would not have been satisfied that the fourth charge had been made out. I repeat in this context what I said in paragraph [76] above.

The Court accepts the Plaintiff’s submission that there can be no reasonable doubt that the publication of the Reprobate Website, the Reprobate Domain and the Go Fund Me Campaign constituted the second and fourth contempts charged.

The Court finds the Defendant guilty of each of the four contempt charges brought by the Plaintiff.

The Plaintiff is entitled to the final relief sought, including permanent injunctions: Yeshiva at [11] - [14] per Young CJ in Eq. I will appoint a further directions hearing to give the parties, especially the Defendant, an opportunity to address the Court on the form of the injunctions and other orders, and in relation to the further steps required to prepare for a hearing on penalty. Schedule A (186 KB, pdf) Schedule B Tate v Duncan-Strele. (2.69 MB, pdf)