Harvey v Henderson (No 2)

1. [1]

   HIS HONOUR: By notice of motion, filed in accordance with the rules and setting out a charge, the plaintiff prosecutes the first defendant, Gary Henderson, for contempt. The alleged contempt is a breach of orders made by the Court issued on 17 September 2021 by consent of the parties to the substantive proceedings.

2. [2]

   The substantive proceedings are for damages and injunctive relief for defamation published by the defendants. Interlocutory orders were sought by a notice of motion and, on 17 September 2021, the parties agreed on the terms to resolve the application for interlocutory proceedings by an agreement that the Court would issue orders restraining the defendants in terms which the Court will set out shortly.

3. [3]

   The initial charges for contempt consisted of three alleged breaches of the orders of 17 September 2021 by the publication of material conveying the same or substantially similar imputations to the publications complained of in the substantive proceedings. It also charged two breaches of the Harman undertaking being what is described by the prosecutor as the implied undertaking not to disclose documents or information obtained in proceedings for any purpose other than that for which it was given during the proceedings.

4. [4]

   The Harman undertaking, so called, is not an undertaking in the ordinary sense, but a requirement on parties receiving documents as a consequence of the compulsive powers of a Court not to publish such documents. The requirement does not apply in circumstances where the document produced is admitted into evidence, and by that process, becomes a public document.

5. [5]

   The prosecutor does not press that which is described as Charges 4 and 5, being the breaches of the Harman undertaking. Essentially, the Harman undertaking, named after the judgment describing it, prohibits the disclosure of information provided under compulsion of a court order from a publication by the party receiving the information, without leave of the court, or the use of it for any purpose other than that for which it was given unless and until it is received into evidence. [1]

6. [6]

   Once a document provided under compulsion becomes evidence in the proceedings or the contents of it is disclosed in proceedings, the document and/or its contents become public, and the Harman undertaking does not apply to prevent its publication. The charges preferred in Charges 4 and 5 for breach of the Harman undertaking relate to the terms of a lease which was produced and was tendered and marked in evidence in the substantive proceedings.

7. [7]

   There might have been some issue as to the timing of the publication, as against the document becoming public as to the Charges in 4 and 5. Those issues need not trouble the Court further because Charges 4 and 5 are no longer pressed by the prosecutor.

Procedural history

1. [8]

   The plaintiff in the substantive proceedings, who seeks to prosecute for contempt in these proceedings, commenced an action against the defendants seeking damages for alleged defamatory content and seeking orders restraining the defendants from further publishing material that conveyed the same or substantially similar imputations.

2. [9]

   The substantive proceedings were commenced by a Statement of Claim on 8 December 2020. At the time, the plaintiff was represented by Solon Lawyers.

3. [10]

   On 15 September 2021, the principal of Solon Lawyers, Mr Konstantine Green, requested in writing that the defendants consent to certain orders. The correspondence was addressed to Ms Esther Colson of David Griffiths Lawyers, who were then representing each of the defendants.

4. [11]

   On 16 September 2021, the defendants’ solicitor responded to the effect that the application for restraining orders needed to be resolved by the Court. In correspondence later on the same day, the aforesaid solicitors indicated that they, by then, had received instructions to consent to the restraining order.

5. [12]

   Later on 16 September 2021, the plaintiff’s solicitor sent signed short minutes of order to the defendants’ solicitor, which were returned signed by return mail. The first affidavit of Vasilios Kalantzis, sworn 17 October 2024, annexes a copy of the signed consent.

6. [13]

   On 17 September 2021, the Court issued orders, by consent, reflecting the consent signed by solicitors for each of the parties. Those orders were in the following terms:

7. [14]

   The orders were made by the Court by Sackar J as part of the management of the Defamation List.

8. [15]

   On 29 September 2021, the plaintiff filed an Amended Statement of Claim pursuant to the orders issued and recited above. The Amended Statement of Claim adopted and pleaded the contextual imputations pleaded in the Defence.

9. [16]

   The hearing of the substantive matter commenced on 15 April 2024 and concluded on 12 June 2024, at which time judgment was reserved. The substantive proceedings had been listed and heard at a number of directions hearings prior to 15 April 2024.

10. [17]

    On 22 August 2024, the plaintiff became aware of a Facebook message sent by the first defendant to the Wandandian Macropod Rescue & Rehabilitation Centre on 19 August 2024 which read, “Enjoy having alook theough [sic] the scam Wild2Free lease arrangement”. The message attached a copy of the lease between the plaintiff and Wild2Free, the registered charity run by the plaintiff. This publication is Charge 1 in the plaintiff’s Notice of Motion.

11. [18]

    On 26 September 2024, the plaintiff was copied into an email sent to each of the office bearers of Wild2Free by the first defendant which indicated that he intended to send information and documents discovered in the substantive proceedings and obtained by subpoena to the Australian Tax Office and NSW Police Fraud Squad.

12. [19]

    On 4 and 5 October 2024, the plaintiff became aware of two posts on the Facebook group “The Cobargo/Bermagui Notice Board” made by the first defendant. The first is a comment on a post seeking volunteers, which comment says, “Can I rent my land to the charity for $50,000 a year like Laurie Harvey does?”. The second is an anonymous post allegedly made by the first defendant in the following terms:

13. [20]

    On 8 October 2024, the plaintiff became aware of a Facebook page called “Beware of Wild2Free” which contained posts about the plaintiff and Wild2Free. Charge 3 in the plaintiff’s Notice of Motion contains three posts made on the Facebook page.

14. [21]

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

15. [22]

    The second post was made on 5 October 2024 and was in the same terms as the anonymous post extracted above at paragraph [19].

16. [23]

    The third post was made on 10 October 2024 and is in the following terms:

17. [24]

    On 25 October 2024, the foregoing publications, being the initial contempt charges, came before the Court together with an application for the production of material relating to alleged contempt.

18. [25]

    The Court as presently constituted issued orders prohibiting the first defendant, Mr Henderson, from deleting anything from his social media accounts, computers etc; prohibiting the dissemination, communication or publication of any documents reproduced on discovery, notice to produce or subpoena by the plaintiff, if such documents had not already been tendered in evidence; granting leave for the plaintiff to seek urgent orders restraining Mr Henderson from contacting, harassing, intimidating or threatening the plaintiff; and allowing the first defendant to file written submissions relating to the issue of privilege against self-incrimination in relation to the production of documents. The last-mentioned order was the product of an issue raised by the Court, given the indication that contempt proceedings were contemplated and that documents produced may arguably impinge against an arguable privilege against self-incrimination. Nevertheless, no application was made as to documents being incriminating.

19. [26]

    On or about 31 October 2024, the attention of Mr Kalantzis was drawn to a message purportedly sent by the first defendant to Ms Claire Pragnell through Facebook. Mr Kalantzis was provided with a screenshot of the message. The message was in the following terms:

20. [27]

    On 1 November 2024, the plaintiff became aware of further posts about the plaintiff and Wild2Free on the Facebook page “Beware of Wild2Free”. The Facebook post contains the following terms, which are the same as the third post in Charge 3 of the Notice of Motion and become available when the mouse is placed upon the photograph of the plaintiff:

21. [28]

    A further comment or post on the Facebook page reads:

22. [29]

    On 4 November 2024, the first defendant sent another message to Claire Pragnell, which was in the following terms:

23. [30]

    On 5 November 2024, the first defendant sent an email to an animal rescuer at Wildlife Rescue South Coast Inc which read:

24. [31]

    On 7 November 2024, Mr Kalantzis conducted a further search of the Facebook page referred to as “Beware of Wild2Free”. The Facebook page revealed a comment that had been posted by a commentator identified as “Ollie Tirips”.

25. [32]

    On 13 November 2024, the first defendant sent an email to the then Secretary and Treasurer of Wild2Free in the following terms:

26. [33]

    On the same date, the plaintiff became aware of further posts on the Facebook page “Beware of Wild2Free”. The first post was an animated image of a pile of money on fire with the caption:

27. [34]

    The second post is an image of four kangaroos with the words “The Scam” in the bottom left corner.

28. [35]

    The third post is a reply to the Facebook comment extracted above by Ollie Tirips. The reply comment reads:

29. [36]

    On 27 November 2024, Mr Kalantzis observed further posts on the Facebook page “Beware of Wild2Free”. The first post contained images of two vehicles, a desktop computer and a Tesla produce with a caption addressed to two Wild2Free Board members in the following terms:

30. [37]

    The second post is an image with text which was posted on 22 November 2024 and reads:

31. [38]

    The third post is an image with text which was posted on 14 November 2024 and reads:

32. [39]

    At the hearing of the contempt proceedings, the first defendant accepted that each of the charged publications were published by him. Mr Henderson relied upon an affidavit in which he asserted that, after he had not received information from the charity as to the manner in which the assets were to be sold and the extent to which the charity would receive any money, he received correspondence from Mr Kalantzis asking for the defamation matter to be relisted. This occurred around 18 October 2024. Mr Henderson asserts that he remembered “taking time to read the Court order from 17th September 2021 and to confirm that Order (6) was in place only until the hearing of the defamation matter”.

Consideration

1. [40]

   The Court is satisfied beyond reasonable doubt that Mr Henderson published the material which is the subject of each charge. The publications complained of in the substantive proceedings contained a number of imputations. Not all of them were defamatory. Nevertheless, the imputations included:

2. [41]

   The publications that are the subject of the charges of contempt are the publications recited above, and the publications charged in the notice of motion. Charge 1 conveyed that the plaintiff is a fraud; that the plaintiff has conducted herself fraudulently with respect to the operation of Wild2Free charity; that the plaintiff has run the Wild2Free charity as a private fundraiser for her own financial benefit; that the plaintiff has conducted the Wild2Free charity fraudulently; that the plaintiff ran Wild2Free charity for her own personal financial benefit and not for the purpose of rescuing animals; and that the plaintiff takes money from people on the false pretence of continuing to use the bushfires to raise money for her Wild2Free sanctuary and had misused Wild2Free charity funds by spending $80,000 on her rates, personal groceries, telephone, internet and $35,000 to lease her own property.

3. [42]

   Those imputations are the same or substantially similar imputations to the publications complained of and set out in the Statement of Claim and the Amended Statement of Claim.

4. [43]

   The publications in Charge 2 convey the same or substantially similar imputations to the publication about which the plaintiff complained in the substantive proceedings, which imputations have already been recited.

5. [44]

   In relation to Charge 3, extracted above at paragraphs [21] – [23], leaving aside the threatening nature of the message and the fact that Mr Henderson and his wife were members of the committee which approved the original lease, the three publications impute the same or similar imputations to those about which complaint was made in the substantive proceedings.

6. [45]

   The first defendant submits that the orders issued by the Court on 17 September 2021 prevented the defendant from publishing the same imputations or imputations that are substantially the same as those published in the material which was the subject of the proceedings in which these orders were made applied only until 15 April 2024, when the hearing of the substantive proceedings commenced.

7. [46]

   Mr Henderson submits that the terms of the order issued by Sackar J, by consent of the parties, applied “pending the hearing of this matter” and the hearing occurred on 15 April 2024. It is necessary to deal with certain principles associated with the construction of any document, including an order of the Court. Before doing so, it is necessary to set out some principles associated with the charge of contempt.

8. [47]

   Historically, courts have drawn a distinction between civil and criminal contempt. However, those distinctions have been overstated. The purpose and distinction between civil and criminal contempt was discussed by the High Court in Mudginberri, [2] where the High Court said:

9. [48]

   The distinction between civil and criminal contempt has been described as unsatisfactory in part because the distinction cannot always be drawn appropriately. [4]

10. [49]

    In some circumstances, conduct constituting contempt may be characterised as both civil and criminal. Where the contempt arises from an alleged breach of an order of a Court, in order for the breach to be contempt, the conduct in breach must be wilful or deliberate and not merely casual, accidental or unintentional. [5]

11. [50]

    It is not necessary for the party alleging contempt to prove that the contemnor had a specific intent or awareness of disobeying the Court’s order. [6] It is, however, necessary to establish that the breach of the order was deliberate and voluntary. [7]

12. [51]

    Whether the contempt is said to be criminal or civil, the standard of proof for the allegation of contempt is the standard of beyond reasonable doubt. [8]

13. [52]

    In National Bank (NAB) Ltd v Juric, the Victorian Supreme Court set out the elements to be satisfied to establish guilt of civil contempt as a result of a breach of an order. [9] These include:

14. [53]

    The foregoing elements were adopted in New South Wales. [10] They have also been applied more generally and were recited, albeit with slightly different emphasis, in the Federal Court by Finn J in the following terms:

15. [54]

    The foregoing statement of principles was adopted and applied by Barrett J in ASIC v Matthews, in which his Honour said:

16. [55]

    As is clear from the passage in the judgment of Barrett J above, the orders of a court are construed objectively. For many years, there was a tendency to treat the construction of penal provisions and beneficial conditions differently from other instruments. While the application of the general principles is now applied universally, it may be the case that, because provisions have the capacity to be penal, the relevant intention is derived by treating the terms of the penal provision in a manner which imposes the least restrictions on conduct otherwise available. Nevertheless, the principles of construction remain, in my view, the same.

17. [56]

    The order must be understood in the context in which it is issued and in a manner which derives, objectively, the purpose of the parties to it or the judicial officer issuing it and in a manner which achieves that purpose. [13]

18. [57]

    The High Court, construing a statute, clarified the principles of construction in the following passage:

19. [58]

    Further, Gageler J (as the learned Chief Justice then was) reiterated the foregoing in stating:

20. [59]

    The first defendant submits that the word “pending” means until. Such a meaning derives from the dictionary. However, as Gageler J points out in a passage following that extracted above, utilising dictionary definitions or incantations relating to the clarity of meaning do not, absent context and purpose, result in a proper interpretation of an instrument.

21. [60]

    The context of these orders issued by Sackar J was that the parties were in dispute about imputations published by the defendants and sought permanent and interlocutory injunctions restraining the defendants from republishing such imputations. Issues existed between the parties as to whether the imputations were defamatory. It was agreed that, pending the hearing of the matter, there should be no further publications.

22. [61]

    Reliance upon the meaning of the term “hearing” in different contexts does not assist. The Court is required to determine objectively the intention of the parties to the consent arrangement and the intention of the Court, objectively determined in the context that the orders were made. Plainly, the orders were intended to bring about that which in current circumstances might be termed a “ceasefire”. The intention is plainly that no further damage be created pending the resolution of the issues between the parties.

23. [62]

    To place on the terms of the order the dictionary definitions of “pending” and “hearing” to arrive at a meaning which allows the order to run only until the hearing and not beyond it would make a mockery of the purpose and intention of the order. Is it seriously suggested (and it was not the subject of submissions) that the restraint would apply only until 10am on the first day of hearing and that at 10.05am the defendants would be free to publish all of the imputations which were the subject of proceedings? Such a construction would be perverse.

24. [63]

    If it cannot be said that the order runs only until the beginning of the hearing (and I have not dealt here with the number of directions hearings that were heard prior to the beginning of the substantive hearing), the order must be taken to have meant that it is running until the conclusion of the hearing. The conclusion of the hearing is when the Court issues the judgment resolving the justiciable controversy between the parties.

25. [64]

    To the extent that authority is needed, it is abundant.

26. [65]

    In Salt v Cooper [16] the United Kingdom Court of Appeal made clear that until judgment issues, a case is still “pending” and the Court obtains powers to deal with the matters raised. [17]

27. [66]

    The Macquarie Dictionary definition of “pending” was given some authority in the Courts and taken to mean, in the context of the law or proceedings, “remaining undecided, awaiting decision”.

28. [67]

    Further, to “hear a matter” has, at least for the last hundred years, meant to hear and determine a matter and is taken, in the absence of an express intendment to the contrary, to mean “to be heard and finally disposed of”. [18]

29. [68]

    Only by construing Order 6 issued on 17 September 2021 as applying until the determination or finalisation of the substantive proceedings would the purpose of the Order and the intention of the parties be given effect. I reject the submission that the Orders issued on 17 September 2021 applied only until the commencement of a hearing and include in that rejection the notion that it could apply somewhat oddly to the commencement of the substantive hearing and not to other proceedings.

30. [69]

    Given the foregoing analysis and the concession of the first defendant that each of the matters subject to charge were published, together with evidence that establishes the publication by the first defendant beyond a reasonable doubt, the provisions of Order 6 of the orders issued by the Court on 17 September 2021 have been breached. The breach was both voluntary and deliberate in that the conduct was voluntary and the publication deliberate.

31. [70]

    If, as attested, the first defendant honestly believed that restraint applied only until the commencement of the hearing, rather than its determination, then the first defendant has taken a risk that his interpretation of Order 6 was correct, rather than seek clarification before the Court. The terms of the Order must be construed objectively, and objectively the restraint applies until the determination and resolution of the justiciable controversy. The Court has now issued a permanent injunction. [19]

32. [71]

    The Court makes the following orders:

    1. (1)

       A declaration that the first defendant, Gary Henderson, is guilty of contempt of Court in that on 21 August 2024, in disobedience of Order 6 made by this Court on 17 September 2021, he published via Facebook Messenger matter to the Wandandian Macropod Rescue and Rehabilitation Centre that conveyed the same or substantially similar imputations to the publications complained of in the substantive proceedings.

    2. (2)

       A declaration that the first defendant, Gary Henderson, is guilty of contempt of Court in that on and between 2 October 2024 and 8 October 2024, in disobedience of Order 6 made by this Court on 17 September 2021, he published on the Facebook page “the Cobargo/Bermagui notice board” matter that conveyed the same or substantially similar imputations to the publications complained of in the substantive proceedings.

    3. (3)

       A declaration that the first defendant, Gary Henderson, is guilty of contempt of Court in that on 2 October 2024 and continuing, in disobedience of Order 6 made by this Court on 17 September 2021, he published on the Facebook page “beware of Wild2Free” matter that conveyed the same or substantially similar imputations to the publications complained of in the substantive proceedings.

    4. (4)

       The Court finds the first defendant, Gary Henderson, guilty of contempt and, in particular, guilty of Charge 1, Charge 2 and Charge 3 attached to the motion dated 17 October 2024.

    5. (5)

       The question of penalty, if any, is reserved for a date to be fixed after consultation with the parties.