Doe v Dowling

1. [1]

   HIS HONOUR: These proceedings were commenced by statement of claim filed in court before Campbell J on 21 December 2016. On that day his Honour made the following orders:

2. [2]

   The form of these orders served upon Mr Dowling contained the following notation:

3. [3]

   The plaintiffs now contend that the defendant breached his Honour’s orders in several respects and that he has continued to do so. Accordingly, on 2 February 2017, the plaintiffs filed a notice of motion seeking the following orders:

4. [4]

   The Statement of Charge annexed to that motion was amended on 1 March 2017 on the plaintiffs’ application, which was ultimately not opposed. The Amended Statement of Charge is now in the following complete terms:

5. [5]

   The plaintiffs’ notice of motion came before me on 1 March 2017 for hearing. Mr Smark SC appeared for the plaintiffs. The defendant appeared for himself without legal representation or assistance. The plaintiffs relied upon four affidavits sworn by Richard Michael Keegan on 21 December 2016, 9 February 2017, 20 February 2017 and 27 February 2017. These affidavits were read without objection. Mr Keegan was cross-examined by the defendant. The defendant did not tender any evidence and did not give oral evidence.

6. [6]

   Mr Keegan’s affidavits depose, among other things, to service of the notice of motion and Statement of Charge upon the defendant. The defendant appeared and did not suggest that he had not been properly served with the Statement of Charge or that the matter should not proceed before me for want of some or any compliance by the plaintiffs with any necessary procedural requirements. With the possible exception of his discursive cross-examination of Mr Keegan, the defendant did not seek to challenge or contradict that evidence.

7. [7]

   Apart from indicating at the commencement of the hearing of the notice of motion that he needed to leave the court by no later than 11.30am, in order to go to his place of work, the defendant did not, with one exception, seek to adjourn the hearing of the plaintiffs’ notice of motion for contempt. That exception is to be found in the defendant’s written submissions (referred to in more detail later in these reasons). Relevantly for present purposes, the defendant’s submissions in this respect were as follows:

8. [8]

   I did not adjourn the proceedings in response to these contentions. In simple terms, the orders of Campbell J were never challenged by the defendant in any way suggesting that they were invalid or unenforceable or should be set aside. The defendant did not seek orders from the Court upon the basis that his Honour’s orders were obtained irregularly or improperly or fraudulently or against good faith. The orders were made solemnly and entered in accordance with the Court’s procedures. They have never been the subject of an appeal. It is therefore conspicuously beside the point to attack the plaintiffs’ motives in commencing the proceedings if orders that have been made by the Court remain in force and are by definition enforceable. The defendant propounded no proper basis for the adjournment application contained in his written submissions.

9. [9]

   The defendant did not otherwise seek any additional time to respond to the plaintiffs’ evidence. He did not suggest that he was unprepared or for some other reason unable deal with the plaintiffs’ allegations against him as described and particularised in the Amended Statement of Charge.

10. [10]

    As the transcript of the proceedings will record, I suggested to the defendant that it might be advisable for him, having regard to the seriousness of the issues, the difficult legal questions involved and in particular the potentially very onerous consequences of a finding against him, to seek to engage a lawyer or obtain some legal assistance. The matter proceeded with the defendant remaining unrepresented notwithstanding my suggestions.

11. [11]

    I reserved my decision at the conclusion of the hearing.

Background

1. [12]

   The defendant is the proprietor and significant contributor to a website that publishes a vast collection of miscellaneous and loosely connected articles and opinions. It is unnecessary for present purposes to refer to these articles or opinions in any detail, with the exception of those that are the subject of the present proceedings. The matters complained of by the plaintiffs were published in the first instance by the defendant on his website. As the evidence will reveal, he has published the same or similar allegedly offending material more widely since then, including on Facebook and Twitter. This is referred to in more detail below.

2. [13]

   The statement of claim seeks the following relief:

3. [14]

   The statement of claim is pleaded and particularised in the following terms:

4. [15]

   The 21 December 2016 article referred to in the statement of claim is in the following relevant terms:

5. [16]

   The defendant has not denied, and readily concedes, that he published this article. So much is apparent from the terms of his defence filed on 23 February 2017. He has denied that the article or the imputations are defamatory. It is not necessary for me to resolve, or even to express a preliminary view upon, that issue.

6. [17]

   The plaintiffs maintain that their names have not been removed from the 21 December 2016 article in breach of the order made by Campbell J on 21 December 2016 that the defendant should do so.

7. [18]

   The plaintiffs maintain that the second article was published by the defendant and is in the following relevant terms:

8. [19]

   The plaintiffs maintain that the third article was published by the defendant on 2 January 2017 and is in the following relevant terms:

9. [20]

   The plaintiffs maintain that the fourth article was published by the defendant on 21 January 2017 and is in the following relevant terms:

10. [21]

    The plaintiffs maintain that the fifth article was published by the defendant on 21 January 2017 and is in the following relevant terms:

11. [22]

    In the case of each of the second, third, fourth and fifth articles, the plaintiffs contend that the defendant published their names, the imputations particularised in the statement of claim and the 21 December 2016 article in contumacious disobedience of the orders made by Campbell J on 21 December 2016. The plaintiffs submit that the defendant has committed a contempt for which he is accordingly liable to be punished.

The defendant’s response

1. [23]

   As I have previously discussed, the defendant admitted that he published the several articles in question. Apart from the terms of his defence, this admission also emerged during the proceedings before me. It was referred to by Mr Smark in the course of his submissions as follows:

2. [24]

   The admission to which Mr Smark was referring appears in the defendant’s words in the following passage:

3. [25]

   It is clear from that passage that it was originally incorrectly recorded. My recollection is that the defendant said what appears in the square brackets that I have inserted. (The Reporting Services Branch has since confirmed this). The defendant did not contradict Mr Smark’s later reference to his admission, which was entirely consistent with the (corrected) passage of his evidence to which I have referred. Moreover, as appears below, the defendant’s singular and repeated theme was one of confession and avoidance rather than denial.

4. [26]

   As I have already indicated, the defendant neither tendered nor called any evidence. This was despite my express and pointed reference to his right to do so. This appears in the following extract from the transcript:

5. [27]

   The defendant did provide me with written submissions which he sought to tender, or to which he occasionally referred as the evidence upon which he proposed to rely. I indicated that I would receive his written submissions and give them consideration in the disposition of this application.

6. [28]

   I have already set forth a portion of those written submissions. It is unfortunate and extremely regrettable that these submissions do not address the principal issue in this application. The defendant chose not to engage with my invitation to direct his attention to this issue in what passed between him and me during his oral presentation. For example, the following extract from the transcript gives an indication of my attempts to elicit the defendant’s attitude to the claims that are being levelled against him:

7. [29]

   Consistently with the burden of his written submissions, the defendant chose not to address the relationship between the scope of Campbell J’s orders and his several allegedly offending publications referred to by the plaintiffs. Instead, the defendant persisted with submissions such as these:

8. [30]

   The flavour of the defendant’s theme is similarly reflected in the following exchange:

9. [31]

   It is therefore abundantly clear that the defendant’s single and consistent approach to the plaintiffs’ charges is to say that the orders he is alleged to have breached were made in a proceeding that was for some reason fatally flawed, thus rendering the effect of orders made in the context of that allegedly invalid proceeding also invalid. Although the defendant did not say so in terms, the thrust of his submission is that he will successfully defend the defamation proceedings against him, thereby rendering the litigious platform upon which Campbell J’s orders were made vulnerable to collapse. He argued that if the proceedings against him were to fail, the orders in question ought necessarily, if only retrospectively, to suffer a cognate fate.

10. [32]

    In the light of what I perceived to be the difficulties inherent with Mr Dowling’s submissions, I gave him the opportunity to provide me with further written submissions if he wished to do so. I made arrangements for a copy of the transcript of the day’s proceedings to be provided to him as well. In the events that have occurred, Mr Dowling took advantage of the opportunity to provide further submissions. These arrived by email on the evening of Sunday 12 March 2017. I have read these further submissions closely.

11. [33]

    Mr Dowling’s latest submissions also fail to address the critical issue. He has not come to terms with the contention that he has breached an existing and enforceable order of the Court. I take Mr Dowling’s several references in his latest submissions to orders that might be made by McCallum J later this week to refer to the prospect that he may be able to satisfy her Honour that the original suppression orders should never have been made. Mr Dowling has referred in this context to s 13 of the Court Suppression and Non-Publication Orders Act. In the event that the orders that Mr Dowling is said to have breached were later held to be invalid, or were set aside for some reason, I accept that that fact could be a matter potentially relevant to assessment of the proper penalty for contempt. It is obvious, however, that the present inquiry is of a different order.

12. [34]

    Mr Dowling has also expressed concern that during the hearing I drew his attention to the fact that the penalty for contempt could be as serious as a term of imprisonment. Mr Dowling appears to take exception to that reference as a possible indication of what will be the ultimate result in these proceedings, or that it is a suggestion of pre-judgment by me. Out of deference to that submission I should indicate that my reference to imprisonment was as contained in the following extract from the transcript:

13. [35]

    I can imagine that referring Mr Dowling only to the lightest penalty that he might face could have been misleading. On the contrary, I do not accept that indicating what could be the least pleasant outcome could have the same effect. Contempt is a serious charge and there is no set or specified maximum penalty. In referring to imprisonment I did not want Mr Dowling to be in any doubt about the potential seriousness of the charge that he faced.

14. [36]

    It is unnecessary further to refer to Mr Dowling’s latest submissions.

Supreme Court Rules – Part 55

1. [37]

   Part 55 of the Supreme Court Rules deal with contempt. The following rules should be noted as applying in the present case:

2. [38]

   There is no issue in these proceedings that these rules have been followed in all respects.

Applicable law

1. [39]

   Disobedience of a court order which constitutes a contempt of court is a matter which affects the administration of justice generally.

2. [40]

   The underlying rationale for the power of a court to punish for contempt is that it is necessary to uphold and protect the administration of justice. The administration of justice is brought into disrepute if disobedience to a court’s order goes unpunished: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at [106]–[107].

3. [41]

   Contempt is a summary charge brought in the inherent jurisdiction of the Supreme Court. Accordingly, summary procedure is the normal manner for the determination of the prosecution: Registrar of the Court of Criminal Appeal v Willesee [1984] 2 NSWLR 378. The primary difference between a proceeding on indictment and a summary proceeding is that the former is a trial by judge and jury whereas the latter is a trial by judge alone.

4. [42]

   Chapter 4, Part 5 of the Criminal Procedure Act 1986 deals with procedure for the prosecution of summary offences, including in the Supreme Court: s 170(3). Section 257 of the Act provides that rules may be made for the exercise of the summary jurisdiction of the Supreme Court. The Criminal Procedure Rules do not contain any procedural requirements for the exercise of this jurisdiction. The relevant rules of Court are found in Part 55 of the Supreme Court Rules.

5. [43]

   In contempt proceedings it is usual to have two hearings: a liability hearing and then, if the defendant is found guilty, a penalty hearing: per James J in McGuirk v University of NSW [2009] NSWSC 1058 at [189]. However, in an appropriate case, there is no reason why sentencing cannot follow immediately upon a conviction.

6. [44]

   Both criminal and civil contempt charges must be proved to the criminal standard beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at [529]; Hinch and Macquarie Broadcasting Holdings Ltd v Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56 at [49]-[50]. It is for the plaintiffs to prove the allegations to this standard.

7. [45]

   Contempt in the form of disobedience to a court order may be regarded as criminal.

8. [46]

   In Seymour v Migration Agents Registration Authority [2006] FCA 965, Rares J held that a conviction imposed earlier by another judge on Mr Seymour for contempt for disobeying an injunction to cease practising as a solicitor was a conviction of criminal contempt. His Honour said at [105]:

9. [47]

   In Mosman Municipal Council v Kelly (No3) [2009] NSWLEC 92, a decision of Biscoe J sitting in the Land and Environment Court of New South Wales, his Honour stated that there are three classes of contempt: technical, wilful and contumacious. Having dealt with technical and wilful contempt, his Honour said at [72]:

10. [48]

    The principles were recently set out by Garling J in the context of an undertaking in Commonwealth Bank of Australia v Salvato (No.4) [2014] NSWSC 321 at [126]-[130] and again in the context of an order said to have been breached in Commissioner for Fair Trading v Rixon (No.2) [2014] NSWSC 431, where his Honour, having referred to his decision in Salvato, summarised the principles as follows:

11. [49]

    Relevantly, “publish” is defined in s 3 of the Court Suppression and Non-Publication Orders Act as follows:

12. [50]

    It is unnecessary to prove that any third party in fact read the offending publication. This approach to publication is consistent with authority: See The Queen v Hinch [2013] VSC 520 at [53]-[54] and the authorities referred to by Kaye J: News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 and Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125. This may be contrasted with the requirements to establish publication in the law of defamation: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [44]).

Consideration

1. [51]

   I am satisfied beyond reasonable doubt that the defendant published each of the offending articles. Quite apart from his admissions to that effect, I am satisfied beyond reasonable doubt that he did so from the evidence given by Mr Keegan. His cross-examination by the defendant did not attempt in any respect to challenge his evidence concerning publication of the relevant articles by the defendant. The confidential exhibits that extract and reproduce these articles are uncontroversially taken from the website of which the defendant is the registrant. The defendant otherwise did not contend to the contrary.

2. [52]

   I do not accept the defendant’s submission that he could not be found guilty of contempt of Campbell J’s orders because they were made in proceedings that are actually or potentially flawed, in the sense that they have been commenced wrongfully or maliciously or for some collateral or ulterior motive, or that they are otherwise frivolous, vexatious or oppressive and liable to be struck out or summarily dismissed. I reject the defendant’s contention that the validity or enforceability of these orders is somehow a function of the plaintiffs’ success in the principal proceedings and that in this case the plaintiffs have not succeeded in their respective claims against him. In my opinion, the orders made by Campbell J on 21 December 2016 are valid and enforceable and are not amenable to some form of jurisdictional assault of the type propounded by the defendant: see, for example R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208; [1951] HCA 3; Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19.

3. [53]

   At [27] in Pelechowski, the majority said this:

4. [54]

   The position in the present case is even stronger. The orders of Campbell J were not improperly made.

5. [55]

   The defendant has clearly breached the orders of the Court. Campbell J’s orders prohibited the publication by the defendant of the names of the plaintiffs on his website without the leave of the Court, which leave was neither sought nor given. The defendant did not remove the names of the plaintiffs from the first article in breach of order 5 and proceeded to republish their names in succeeding articles in breach of order 4. The defendant ignored the restraint lawfully imposed upon him by the terms of order 6.

6. [56]

   The defendant has not sought to argue that his Honour’s orders were unclear or ambiguous or somehow incapable of understanding or that he did not in fact understand them. As with all references by me to the defendant’s submissions, or to his failure to contest evidence tendered by the plaintiffs or submissions made on their behalf, I have borne in mind at all times that he bears no onus of proof, and that it remains the plaintiffs’ obligation to establish the charges beyond reasonable doubt. My references to the defendant’s responses are intended to indicate that my attention was not drawn by him to any matters that might cause me to have doubt about whether or not the plaintiffs had established or proved the necessary elements of the charges to the requisite criminal standard. For the avoidance of doubt I am satisfied beyond reasonable doubt that the orders made by Campbell J on 21 December 2016 are not ambiguous or otherwise attended by any doubt about their operation, meaning or effect.

7. [57]

   I am also satisfied beyond reasonable doubt that the defendant’s failures to comply with the orders of the Court were intentional, wilful and deliberate. They were certainly not casual, accidental or unintentional. The repetition of the publication of the names of the plaintiffs is sufficient to demonstrate this. It is also sufficient in this respect to observe that the offending publications themselves refer to the orders of the Court. It seems reasonably clear, although I am not required to find, that the defendant apparently rejoiced in his own defiance of the orders. Be that as it may, it is clear on their face that the defendant’s publications were made with full knowledge of the orders and were made wilfully. For example, the second article contains the defendant’s observation that “[t]he court orders only demand that I delete their names”. That article reproduces the plaintiffs’ names. Similarly, the third article contains the defendant’s concession, “[t]his is on top of the suppression order banning the media naming the applicants which of course I have”. That article also reproduces the plaintiffs’ names.

8. [58]

   I am satisfied beyond reasonable doubt that the defendant was aware at the time of each of the publications that his conduct in reproducing the names of the plaintiffs (at the very least) constituted conduct in breach of Campbell J’s orders. The orders contained the notation that if he disobeyed the orders he would be liable to imprisonment. Nothing could have been clearer. The articles variously contain scattered references to injunctions or what the defendant is prone to call super injunctions. It is obvious that he understood that such orders of a court operated to enjoin or to restrain him, in this case, from publishing the names of the plaintiffs or required him to remove their names from his website. In the second article the defendant wrote, referring to the plaintiffs, “[t]hey have also taken out an injunction to hide their names”. Properly understood, that reference clearly demonstrates that the orders in question were directed at removing the plaintiffs’ names from the public domain in the particular context of the defendant’s other comments about them. The orders gave effect to that purpose. The defendant nevertheless acted so as to frustrate that purpose. I am satisfied to the criminal standard that the defendant knew and understood that his conduct in doing so constituted a breach of the relevant order.

9. [59]

   Finally, I am satisfied beyond reasonable doubt that the defendant’s contempt is contumacious. I am unable to reach any conclusion other than that the defendant deliberately set out to disobey and to flaunt what he knew and understood to be the solemn orders of the Court.

Conclusions and orders

1. [60]

   It follows that I find the defendant guilty of contempt as charged in the plaintiffs’ Amended Statement of Charge.

2. [61]

   It will be necessary to appoint a further date to hear submissions from the parties on penalty.