Dowling v Prothonotary of the Supreme Court of New South Wales

BASTEN JA: The applicant, Shane Dowling, seeks leave to appeal from a judgment of Wilson J in the Common Law Division finding him guilty on three charges of contempt of court laid against him by the Prothonotary. [1] These findings led to his committal to prison on 22 August 2018 for 18 months, with a “non-parole period” of 13 months. [2] The “sentence” commenced on 22 August 2018.

At the hearing on 16 November 2018 this Court set aside the sentence and ordered that the appellant serve a term of imprisonment for four months, expiring on 21 December 2018. The Court otherwise reserved judgment in the matter.

The circumstances giving rise to the contempt proceedings were as follows:

The applicant sought leave to appeal from the orders made by Beech-Jones J on the afternoon of 3 February 2017. Even if successful, that application could not affect his convictions for contempt, because the orders were valid for so long as they remained on foot, which included the time when he uploaded material in breach of those orders to the internet. On the other hand, it is arguable that the objective seriousness of the offending might be lessened if the appellant could demonstrate that the orders should not have been made in the first place.

For reasons explained below, I would refuse the appellant an extension of time to appeal from the orders made on 3 February 2017. In brief, one order was replaced when the matter returned before Beech-Jones J on 8 February 2017; there was no allegation of any breach of the order made on 8 February 2017. They have all now been vacated. [4]

The applicant has lodged an appeal from the convictions on the three charges of contempt of which he was found guilty on 3 August 2017. These orders constituted an interlocutory judgment, final judgment not being delivered until he was committed to prison on 22 August 2018.

The contempt proceedings engaged the civil jurisdiction of the Court. [5] The right of appeal is conferred by s 101(5) of the Supreme Court Act 1970 (NSW). In Prothonotary of the Supreme Court of New South Wales v Dangerfield, [6] the Court held that leave is not required pursuant to s 101(2)(r). The determinative reasoning was as follows:

Section 101(2)(r) does apply where no amount or property right is in issue. [8] At least one purpose of s 101(5) is to address appeals in the criminal jurisdiction, consistently with s 17(3) of the Supreme Court Act. Appeals in criminal matters may nevertheless come to this Court under s 101(1). [9] However, unlike the general conferral of appeal rights under s 101(1), subs (5) is not expressed to be subject to other provisions in the Act. If leave were required it would be granted, because the matter involves serious issues as to the administration of justice, and because the liberty of the individual is at stake.

There is no doubt that the appellant can challenge the findings of guilt as part of the challenge to the final orders. The appeal to this Court is governed by s 75A of the Supreme Court Act.

The primary basis upon which the applicant sought to challenge the suppression orders and the contempt charges relied upon the implied constitutional freedom of political communication.

In this area of discourse, it is easy to adopt language suggesting there is a constitutional right to free speech which renders political speech immune from regulation or prohibition. That is not so: the constitutional implication imposes constraints on the valid operation of laws which may regulate or prohibit political communication. [10] There are two questions to be addressed. As explained in Wotton v State of Queensland, [11] “The first question asks whether in its terms, operation or effect, the law effectively burdens freedom of communication about government or political matters. If this is answered affirmatively, the second question asks whether the law nevertheless is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government ….” Unless the first question is answered affirmatively, the second question does not arise.

It is necessary to identify the relevant State laws. The first order made by Beech-Jones J on 3 February was made under s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“Court Non-publication Orders Act”). The second order was made in reliance on the Court’s inherent power to suppress publication of statements made in court about judicial officers. The contempt charges were laid under the Supreme Court’s general law powers to punish for contempt of court and the Supreme Court Rules 1970 (NSW), Pt 55.

Because the constitutional question is to be answered by reference to the scope and operation of the impugned laws, and not by reference to the particular communication in question, the first step involves statutory interpretation. [12] The question is dealt with at a high level of abstraction, contrary to the usual method of determining questions of law. In some cases it will be possible to read down the impugned law so that it does not infringe the constitutionally protected area of communication. [13] In other cases a different exercise will be undertaken, namely a determination that, because the law cannot be read down and therefore may have an operation which infringes the constitutional constraint, it will be necessary to ask whether that part of the law which infringes can be “severed”, so as to preserve the valid area of operation.

This bifurcated exercise has an air of artificiality. [14] It also tends to infringe the principle that if the court can avoid determining a case on a constitutional basis it should do so. Both in the United States and in this country it is a well-established principle that the court “reaches constitutional issues last, not first”. [15] In the United States, at least in some cases, the constitutional validity of a law may be assessed on an “as applied” basis, and not by reference to its potential (or facial) operation. [16] As explained in Dahnke-Walker Milling Co v Bondurant [17] and approved in Ayotte v Planned Parenthood of Northern New England: [18]

In the present case the laws in question cover what can be described as scandalising contempt, and defiance of orders suppressing the publication of statements made in the course of court proceedings. Those laws confer powers on the courts to protect the integrity of the administration of justice. A State law which deprived the Supreme Court of such powers would be likely to run foul of the principle established in Kirk v Industrial Court of New South Wales, [19] because it would deprive the Court of an essential characteristic of a superior court of record. It would render the Constitution itself incoherent if the laws protected from legislative interference under Ch III were found to contravene the implied freedom of political communication under Ch II.

There are of course limits to those powers, but they are inherent in the powers themselves: they do not depend upon the constitutionally protected freedom of political communication. Accordingly, the applicant’s reliance on the implied freedom is misplaced.

The suppression orders were also attacked in their own terms. If the orders were invalid in the sense of being incapable (as made) of being enforced by committal for contempt, the contempt charges and convictions should be set aside.

The first order was attacked on the basis that it was ambiguous in so far as it prohibited from disclosure “the contents of Exhibit 1”, being a transcript of the proceedings before the registrar. The order is neither uncertain nor ambiguous. Exhibit 1 was a transcript; its contents were the statements made in court which it recorded. The order prohibited disclosure of those statements.

Nor was it in doubt that the applicant published those statements. He did so by publishing the contents of an audio-visual recording which he had made in court (probably unlawfully). There was no evidence of any discrepancy between the statements so recorded and the transcript. Accordingly he published the contents of the transcript.

An audio-visual recording may contain more information than a written transcript. It records the tone of voices, pauses and, though not usefully in this case, visual information. The fact that it records, and its publication discloses, more than the mere words spoken does not mean that it does not disclose the words spoken.

There was a challenge to the term “allegations” in order (2) on the basis that no details were identified. The time, place and speakers were, however, identified. Further, read in context the reference in order (2) to “the contents of the allegations” can only be understood as a reference to the contents of the allegations contained in Exhibit 1, namely the transcript. There was no reliance on anything Mr Dowling said in Court which was not in the transcript. Nor was there any suggestion that the “content of the allegations” was an uncertain phrase if one had regard to the transcript, or the audio-visual recording.

Furthermore, complaints as to the lack of specificity in non-publication orders as to the information which should not be published must be treated with caution. The order can only be obeyed if published; for the order to repeat the very information which is sought to be suppressed would be self-defeating.

There were two other challenges to order (2), namely (i) that the order was too broad, because it could have been limited, and appropriately should have been limited, to the names of the judicial officers who were the subject of the abusive attack, and (ii) it was inutile because the allegations were already in the public domain, having been published on the applicant’s website prior to their repetition in court. Each of these challenges has some force, but they should not be entertained in this appeal for three reasons.

First, the orders were made ex parte on an interim basis; if the applicant wished to have them varied, he had an opportunity to do so when the matter was relisted before Beech-Jones J on 8 February. If that timing precluded his attendance, he could have applied for the matter to be relisted at a different time. He neither attended nor made such an application.

Secondly, the fact that the orders, in their terms, may have been ineffective to stop the scandalising behaviour is not a reason for not making them. There were no submissions in the Court as to the nature and detail of the evidence before Beech-Jones J; nor is it necessarily inappropriate to make an order which goes only part of the way to remedying a perceived problem. It was a matter for the Prothonotary, or some other authority, to seek further orders if they were deemed necessary.

Thirdly, as noted above, the orders have, in any event, been vacated on the motion of the Prothonotary: see Dowling (No 6). [20] The motion was dealt with by Wilson J, who had detailed knowledge of the procedural background, in part as a result of having dealt with the contempt charges. There is no purpose in this Court repeating that exercise, but on more limited information.

The appellant’s notice of appeal filed on 26 September 2018 did not purport to challenge those orders. He would need an extension of time to lodge such an appeal. On the basis that such an application is implicit in his submissions, and for the reasons set out above, I would refuse an extension of time to challenge the validity of the orders made on 3 February 2017 by Beech-Jones J.

Because, for the reasons set out above, order (1) made by Beech-Jones J on 3 February 2017 (prohibiting publication of the contents of the transcript) was neither ambiguous nor uncertain in objective terms, and was not misunderstood by the applicant, there is no basis to set aside the conviction on count 2. For the further reasons given by Macfarlan JA, the challenge to the convictions on count 1 and 3 should also be rejected.

At the sentencing hearing, the applicant challenged the power of the primary judge to commit him to prison, that being enforcement of a judgment by committal in circumstances where r 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) had not been complied with. That rule relevantly provides:

Read as a whole, the intended scope and operation of the constraints imposed by subrr (1) and (3) are unclear. They require both that (i) a sealed copy of the judgment be served personally on the person bound by the judgment and that (ii) the sealed copy bear a notice warning the person that he or she is liable to imprisonment for disobeying the judgment. On one view, subr (4) effectively disapplies subr (1) and its requirement for personal service whenever a person bound by the judgment has notice of the judgment. That condition was satisfied in the present case. Accordingly, personal service was not required.

What is less clear is whether the effect of subr (4) was also to dispense with the need to comply with subr (3). It seems unlikely that “the judgment” which is directed to be entered, pursuant to par (4)(a), and the “terms of the judgment” which may be conveyed orally pursuant to par (b), should be understood to include a notice in the terms required by subr (3). Indeed, subr (3) appears only to operate with respect to the sealed copy of the judgment which is to be served personally pursuant to subr (1). On that construction, there was no constraint upon the enforcement of the orders made on 3 February 2017 against the applicant, in circumstances where he had been given written notice of them, even though not by personal service and without the notice contemplated by r 40.7(3).

The primary judge exercised her power to dispense with service under the rule, pursuant to subr (5). There was no error in taking that course.

The primary judge approached the determination of an appropriate punishment as a form of sentencing governed by the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”). Although there is authority to support that approach, it may be doubted that the Sentencing Procedure Act applies where proceedings are commenced in the civil jurisdiction of the Supreme Court.

The Sentencing Procedure Act itself is non-committal on the point. It undoubtedly deals with sentences, where “sentence” (as a noun) is defined to mean “the penalty imposed for an offence”: s 3(1), sentence. It speaks uniformly through its provisions of a “court” imposing a sentence. The term “court” is defined in the following manner:

Part 2 of the Sentencing Procedure Act deals with penalties that may be imposed. The first provision (Div 1) provides as follows:

While it may be accepted that there is no clear distinction between civil and criminal contempts, there are clear distinctions drawn in relation to all the courts identified in s 3(1) between the exercise of civil and criminal jurisdiction. [21]

Each of the Criminal Procedure Act 1986 (NSW) and the Crimes (Administration of Sentences) Act 1999 (NSW) now defines “court” in the same terms as the Sentencing Procedure Act. In its long title, the Criminal Procedure Act is described as an Act “relating to the prosecution of indictable offences … and proceedings for summary offences … and for other purposes.” It may be inferred from the subject-matter and context that the term “court” applies only to the identified courts when exercising criminal jurisdiction.

Disobedience of a court order made in civil proceedings was not an offence at common law. There was therefore a distinction reflected in the language of “committal” or “sequestration”, as opposed to “sentence”, where a punishment was imposed for contempt. That language is found UCPR r 40.6, which relevantly provides:

That language is repeated in the UCPR, r 40.7, considered above.

More generally, the criminal process operates with respect to past conduct and punishment for past conduct. A committal for contempt may constitute punishment for past conduct, but that is not necessarily the case. As explained in Miller on Contempt of Court: [22]

The authors of Miller referred to the statement by Lord Denning MR in Danchevsky v Danchevsky: [23]

As explained in Arlidge, Eady & Smith on Contempt, [24] “[a]n effective sanction (deriving from canon law) was the practice that one who was in contempt might not be heard further in the same litigation, for his own benefit, unless and until he had purged his contempt.” The practice was described as “primarily coercive in nature rather than punitive.” Such orders have been made in more recent times in aid of family law proceedings for disclosure of the whereabouts of children and in proceedings against whistle-blowers and journalists for disclosure of sources. In the UK, such cases may arise under s 10 of the Contempt of Court Act 1981 (UK). [25]

The distinct nature of proceedings for contempt is demonstrated by cases dealing with contempt in the face of the court. In Morris v Crown Office [26] a trial judge was called on to deal with a group of university students who disrupted court proceedings in the High Court in London, requiring the proceedings to be adjourned. A number of the students were arrested and brought before the court to be dealt with for contempt; some were imprisoned for three months. Pursuant to the Criminal Justice Act 1967 (UK) a sentence of imprisonment for a term of not more than six months was required to be suspended. While committal in respect of a civil contempt was expressly excluded from the operation of the Act, the conduct in question was a criminal contempt and not a civil contempt. Lord Denning MR held that the judge “still has power at common law to commit instantly to prison for criminal contempt, and this power is not affected in the least by the provisions of the Act of 1967.” [27] Davies LJ, agreeing with Lord Denning MR, stated: [28]

Lord Salmon LJ stated: [29]

In short, in the very case which has conventionally been treated as a criminal offence, namely contempt in the face of the court, the Court of Appeal rejected the possibility that criminal law statutes relating to procedure and sentencing should apply. A similar issue to that addressed in Morris would arise with respect to the operation of the Children (Criminal Proceedings) Act 1987 (NSW), involving persons under 18 years of age (or under 21 years of age when charged). [30]

Neither the subject-matter, scope and purpose of the Sentencing Procedure Act, nor the procedures, processes and purposes of the law of contempt suggests that the Sentencing Procedure Act should apply with respect to proceedings in the civil jurisdiction of the court for contempt. However, there is authority in this Court which supports the contrary conclusion. In Attorney General (NSW) v Whiley [31] the Court held that the Sentencing Act 1989 (NSW), the predecessor to the Sentencing Procedure Act, applied “where a person is imprisoned for contempt.” [32] It is clear from the commencement of the discussion that the Court was considering a conviction for criminal contempt, noting: [33]

When Young was decided, this Court took the view that the distinction between civil and criminal contempts applied to the standard of proof so that, for disobedience of an order of a civil court, the civil standard applied, rather than proof beyond reasonable doubt. [37] That authority was later overruled by the High Court in Witham v Holloway, [38] the joint reasons of Brennan, Deane, Toohey and Gaudron JJ stating:

Whiley was applied with respect to the Sentencing Procedure Act by Studdert J in Principal Registrar of the Supreme Court of New South Wales v Jando, without addressing the category of the contempt. [39]

The distinction being illusory, it would be anomalous to have different statutory regimes applicable to punishment for a civil contempt as opposed to a criminal contempt. Particularly is that so where, as in the present case, punishment may be imposed for a number of contempts, one of which may be criminal and another civil. The better view is that a single regime should apply and, for the reasons noted below, the Sentencing Procedure Act is not engaged. The problems with applying the reasoning in Whiley under the current legislation are fourfold.

First, although the Court referred to the powers conferred by Pt 55, r 13 of the Supreme Court Rules, there was no consideration of the specific language of that rule, referring to “committal” and “sequestration”, as opposed to “sentence”. The reasoning appears to start with the assumption that a punishment by way of committal for contempt involves “sentencing” and therefore the provisions of the Sentencing Act were engaged. However, it is not possible to ignore the different language of the common law, adopted in the Supreme Court Rules. [40] Further, neither the Sentencing Act, nor the Criminal Procedure Act 1986 as originally enacted, had a definition of “court” which appears to be limited to courts exercising criminal jurisdiction.

Secondly, not all contempts involve indictable offences which can be dealt with summarily, nor does that description adequately identify the nature of the jurisdiction. In John Fairfax & Sons Pty Ltd v McRae [41] the High Court said:

In 1990, the House of Lords declared that the procedure by way of indictment was obsolete; [42] to characterise all contempts as criminal would be erroneous, even if the distinction is now considered to be illusory.

Thirdly, it was said that there were “strong policy reasons” for applying the Sentencing Act to sentencing of a person for contempt. Those involved “consistency in sentencing”, the opportunity for the contemnor to have parole and the ability to structure a sentence flexibly. This argument is again circular in that it assumes the exercise being undertaken is one of “sentencing” and that contempt is a criminal offence of the same kind as other offences relating to past conduct. In any event, such questions of policy are for the legislature and would, no doubt, be reflected in the language of the statute if they were adopted by the Parliament. Nor does this reasoning address scandalising contempt, or continuing defiance, which cannot be accommodated within the scheme of criminal sentencing legislation.

Fourthly, the Court distinguished English authority which adopted a contrary approach, including Morris v Crown Office, on the ground that the UK criminal legislation “imposed fetters upon the power to imprison which, if applicable to cases of contempt, struck at the power of the courts to protect the integrity of the administration of justice.” The Court stated that no similar considerations applied in respect of the Sentencing Act. [43] Why that was so was not explained; it is not currently true. Indeed, in 1996 Hunt CJ at CL noted that “… Pt 55 r 14 (permitting the court to order a contemnor’s discharge before the expiration of the term imposed) appears strongly to suggest that punishment for contempt is sui generis in nature, for such a power is inconsistent with the whole scheme of the Sentencing Act.” [44] That is illustrated by the need to find another source of power to interrupt a committal for a fixed term, a power not available under the sentencing legislation.

In a case where the trial judge had purported to impose a sentence under the Sentencing Procedure Act, Menzies v Paccar Financial Pty Ltd, [45] Meagher JA said:

It is not in doubt that the contempt proceedings, commenced by summons with a statement of charge, complied with Pt 55, rr 6 and 7 of the Supreme Court Rules. Count 3 of the charge alleged a contravention of the order made by Beech-Jones J pursuant to the Court Non-publication Orders Act. Contravention of an order under that Act is an offence, pursuant to s 16(1). It carries a maximum penalty of imprisonment for 12 months or a fine, or both. It expressly states that “conduct that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence”: s 16(2). (The reverse is also provided for: s 16(3).) The distinction between proceedings for an offence and proceedings for contempt is clearly identified, although each may result in punishment. In the conventional language of the common law, Pt 55 provides that “where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both”: r 13(1). Where the contemnor is a corporation, the court may punish “by sequestration or fine or both.”

The primary judge purported to impose a non-parole period and a balance of term. The structure of the sentence thus assumed the application of s 44 of the Sentencing Procedure Act. It also assumed that the Parole Authority had power to consider whether the applicant should be released on parole and, if so satisfied, release him on parole, pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW). Neither of those statutes applied in their terms; they each involve sentences imposed in the criminal jurisdiction, as does the Crimes (Appeal and Review) Act 2001 (NSW). In committing a person to prison for contempt of court, the court is operating in its civil jurisdiction. That is not to say that many incidents of the general law protections of the person charged with a criminal offence will not operate; rather it is to identify the jurisdiction of the Court as being civil rather than criminal. [48]

The reasoning in Whiley is not, in my opinion, persuasive as to the operation of the Sentencing Procedure Act with respect to a finding of contempt in the civil jurisdiction of the Supreme Court. For these reasons, the primary judge was wrong to “convict” the respondent and was wrong to sentence in accordance with the Sentencing Procedure Act. Having made declarations in accordance with the orders sought in the summons, to the effect that the respondent was guilty of contempt of court in relation to each of the three counts, and being satisfied that a custodial penalty was appropriate, it was sufficient to order that the respondent be committed to prison.

This Court’s appellate powers are conferred by s 75A of the Supreme Court Act. The appeal being one by way of rehearing, the Court must determine the matter on the basis of the law and the facts as they exist at the date of the rehearing. To the extent that the challenge is purely to the length of the imprisonment, the standard of review is the constrained standard adopted in House v The King. [49]

The Criminal Appeal Act 1912 (NSW) confers jurisdiction on the Court of Criminal Appeal established under that Act; [50] accordingly, the right of appeal against sentence under s 5(1)(c), and powers conferred by s 6(3), did not apply in this case. Cases dealing with the application of s 6(3), such as Kentwell v The Queen, [51] also have no necessary application. This Court is exercising the civil jurisdiction of the Supreme Court, as was the primary judge.

While count 1 (dealing with the respondent’s conduct in the course of the hearing before the registrar) was a form of scandalising contempt, the breach of civil orders was not. The overall conduct identified in the declarations was properly dealt with by a committal for a single fixed term of imprisonment.

In quashing the sentence imposed in the Common Law Division and committing the applicant to prison for a specified period, I would not rely upon the quashing of his conviction on count 2; accordingly my reasons differ from those of Macfarlan JA in this respect.

As Wilson J correctly noted on the sentencing, the applicant had twice previously been found guilty of contempt of court. He had been fined and then sentenced to four months imprisonment. Repetitive disobedience of orders of the court warranted a further period of imprisonment. The fact of repetition provided a sound basis for increasing the severity of earlier penalties. On the other hand, the nature of the particular contempt was equally important in determining the severity of the punishment.

In the previous cases, the contempts had affected third parties, including other litigants in the court whose rights and entitlements were required to be respected. In those cases, the Court was required to exercise its authority to protect the rights of others. By contrast, the present case involves scandalising the Court itself. While the Court may be expected to take a firm stand against such conduct and to impose condign punishment when it occurs, as Wilson J noted in her judgment vacating the suppression orders, the conduct was more in the nature of irrational abuse which would readily be seen by the broader public to be irrational and to reflect more seriously upon the applicant than the Court.

It is important in such cases to recall that “[t]he jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals.” [52] Further, as Salmon LJ stated in Morris: [53]

Taking these factors into account, committal to prison for four months was a sufficient response to the three charges of contempt which involved closely related conduct.

In addition to the orders made on 16 November 2018, I would proposed the following orders:

MACFARLAN JA: Mr Shane Dowling appeals against his conviction and sentence in the Common Law Division of the Court on three charges of contempt of court. He also appeals against the making of the Court orders which he was found to have breached on the second and third contempt charges (“Counts 2 and 3”). As well, Mr Dowling challenges two decisions of the trial judge, who was also the sentencing judge, not to disqualify herself from hearing the contempt proceedings. The sentence imposed on Mr Dowling was an aggregate term of 18 months’ imprisonment, with a non-parole period of 13 months being fixed. Indicative sentences of nine months’ imprisonment were specified in respect of each count.

Mr Dowling was self-represented on the appeal but the Court had the considerable assistance of Mr Izzo SC and Mr Bhasin, of counsel, who acted as amici curiae. At the conclusion of the hearing of the appeal on 16 November 2018, this Court made the following orders:

For the reasons that appear below, I propose that the Court make the further orders set out at [138] below.

On 3 February 2017 Mr Dowling appeared for himself at a call-over for defamation matters before a registrar of the Court. At least 30 to 40 people were present in court when Mr Dowling made statements which were recorded in the transcript as follows:

Later that day, Beech-Jones J made the following orders, ex parte on the application of the Prothonotary:

Exhibit 1, referred to in Order (1), was the transcript of the proceedings that occurred earlier in the day before the registrar.

His Honour gave the following reasons for making the orders:

At 6.17pm on 3 February 2017, the Prothonotary’s solicitors sent an email to Mr Dowling attaching a sealed copy of Beech-Jones J’s orders and a Notice of Motion seeking further orders. The copy of the orders was not served personally on Mr Dowling and did not contain the required notification warning him that he was liable to imprisonment if he breached the orders, pursuant to r 40.7(1) and (3) of the Uniform Civil Procedure Rules 2005 (NSW) (the “UCPR”).

On 8 February 2017, however, Beech-Jones J vacated Order (1), which he had made on 3 February 2017 and, in lieu, made a suppression order under s 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the “Suppression Orders Act”) relating to Exhibit 1 tendered on 3 February 2017. A further order recorded that the substituted order was “made on the grounds of s 8(1)(a)” of the Suppression Orders Act.

Particulars contained in the Prothonotary’s Summons filed on 27 March 2017 alleged that:

In her Summons, the Prothonotary charged that Mr Dowling was guilty of contempt of court in that:

By judgment of 3 August 2017, Wilson J of the Common Law Division found Mr Dowling guilty on each of the three charges of contempt ([2017] NSWSC 664).

Her Honour commenced her judgment by identifying the statements that Mr Dowling had made on 3 February 2017, as recorded in the transcript for that day. She continued at [6]:

Having referred to Mr Dowling’s publication on his website of the article and the audio visual recording of his appearance before the registrar (see [77] above), her Honour continued:

Her Honour then identified the question before the Court at [34]:

Her Honour rejected at [51] Mr Dowling’s contention that his “implied constitutional right of freedom of political speech” constituted a defence to the charges of contempt of court made against him. Her Honour held that the implied freedom was “limited to what is necessary for the effective operation of the system of representative and responsible government provided for by the Constitution” and that it did not embrace the “operation of the courts and the functions of judges” (at [54] and [56]).

For the following reasons, her Honour concluded at [62] that the conduct charged as Count (1) constituted a contempt of Court:

As to Counts 2 and 3, her Honour rejected Mr Dowling’s contention that the orders that he breached were invalid (referring to State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32]). Her Honour then found that both Counts 2 and 3 were established, holding at [67]:

Her Honour then made declarations that Mr Dowling had committed the three contempts of court charged.

By a judgment of 22 August 2018 ([2018] NSWSC 1301), Wilson J convicted Mr Dowling of the three counts of contempt of court and, after consideration of the matters referred to below, sentenced him to an aggregate term of 18 months’ imprisonment (see [68] above).

Mr Dowling contended on the sentencing hearing that it was not open to the primary judge to sentence him to imprisonment for the Counts 2 and 3 contempts as he was not, as required by r 40.7(1) and (3) of the UCPR, served with a sealed copy of the orders bearing a notice warning him of his liability to imprisonment if he breached the orders. Rule 40.7 is relevantly in the following terms:

In her sentencing judgment, the primary judge found that the rule did not apply because the orders were not directed to “any specific person who was to be ‘bound by the judgment’” as contemplated by r 40.7(1)(a). Her Honour found at [14] that instead the orders were of a “general nature”, applicable to the world at large.

Her Honour held that in any event the dispensing power conferred by r 40.7(5) should be exercised for two reasons. First, her Honour found at [16] that Mr Dowling “would have been well aware of the possibility of a custodial sentence being imposed” by reason of the previous service on him in other proceedings of a sealed copy of orders containing the appropriate warning. Secondly, her Honour said that there was no reason to conclude that if the appropriate notice had been included in the order Mr Dowling would have refrained from breaching it. Her Honour found that Mr Dowling’s breaches of the orders were wilful and rejected his assertion that he believed “that the orders were nothing more than an attempt to intimidate him” (at [18]-[19]).

The primary judge, in her sentencing judgment, described the Count 1 conduct at [22] as a “disgraceful and scurrilous attack upon the Court”, which must have been “highly disturbing to all of those present”. Her Honour described the Counts 2 and 3 conduct at [26] as “deliberate and wilful defiance of the orders of the Court, acts which undermine and demean the authority and integrity of the Court”, and found the conduct charged in all three counts to have been contumacious.

Her Honour further found at [34] that Mr Dowling was aware of the possible consequences of his conduct but her Honour accepted that he honestly believed that he was “a person fighting against a legal system he believe[d] to be populated by judicial officers who are or may be corrupt, and who are or may be ‘paedophiles’”. As Mr Dowling was unable to produce any evidence to substantiate his allegations, her Honour concluded at [36] that his belief “in the righteousness of his cause is demonstrative of not just a profound lack of insight, but of a dangerous delusion”.

Her Honour further concluded that Mr Dowling benefited from his contempts as they provided him with a platform to solicit donations, and found that he did not express contrition for what he had done but, rather, compounded his contempt “by maintaining the publication of the offending material on his website” (at [37]-[44]).

Her Honour noted that in July 2014 Mr Dowling had been fined $2,000 for contempt and that in August 2017 he had been imprisoned for four months for a separate (second) contempt (at [46] and [49]-[50]).

Her Honour then described the limited information that was available about Mr Dowling’s subjective circumstances and noted that, although he had expressed an intention to comply with court orders in future, that assertion was at odds with much of his evidence and conduct (at [73]-[74]).

Her Honour described Mr Dowling’s prospects of rehabilitation as “very limited” (at [77]), and considered that only a limited concurrency of the sentences was appropriate. She then imposed the sentence referred to at [68] above.

The allegations Mr Dowling made in Court on 3 February 2017 that led to his conviction on Count 1 were that the registrar was “a known bribe[-taker]”, and a “suspected paedophile and child rapist”, and that the named judge was a paedophile.

Mr Dowling contended on appeal that he did not make these allegations in Court but instead had just referred to them as having been made on his website. I reject this submission as it is clear from the transcript of the hearing (see [71] above) that in the Registrar’s Court Mr Dowling asserted, or at least reasserted, the truth of those allegations. For the reasons given by the trial judge (see [84]-[85] above), the making of these allegations in Court constituted a serious contempt of it.

Count 2, as particularised, alleged that Mr Dowling breached Order (1) that was made on 3 February 2017 by publishing on his website an article that repeated some of the allegations that he had made in Court on 3 February 2017, uploading to YouTube an audio visual recording of the proceedings on that date and providing a hyperlink to the recording on his website.

Order (1) prohibited disclosure of “the contents of Exhibit 1”, which was the transcript of the hearing before the Registrar on 3 February 2017.

The Prothonotary argued on appeal that Order (1) clearly conveyed to Mr Dowling that he was prohibited from communicating to others the fact that he had made the subject allegations on 3 February 2017 and was prohibited from making the allegations to anyone again.

I do not accept that this is clearly the correct construction of the Order. At least arguably, it purported to restrain Mr Dowling only from disclosing to anyone any part of the transcript which was Exhibit 1. What Mr Dowling did was different. First, he disseminated a record (the audio visual recording) of the proceedings. This had been made entirely independently of the transcript. Secondly, he repeated the subject allegations on his website but did not do so by reference to the transcript.

For a breach of a court order to be punishable as a contempt, the order must be unambiguous in its terms. The authorities to this effect were conveniently summarised by Beazley JA (as her Honour then was) in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [52] as follows:

Order (1) did not meet this standard. The better view is that it did not prohibit the conduct in which Mr Dowling engaged, but it was at least ambiguous in its terms. Mr Dowling’s conviction on Count 2 accordingly cannot be sustained.

Mr Dowling contended on appeal that all of his convictions should be quashed because his conduct as alleged in all three counts constituted an exercise of his implied constitutional right of freedom of political communication.

As the High Court stated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561; [1997] HCA 25, “the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution” (citation omitted). Both statute law and the common law must be consistent with the constitutional protection (ibid at 566).

As the plurality, comprising six justices of the High Court, stated in Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [92], “[c]ommunications concerning the exercise of judicial power stand apart” from the implied freedom of political communication. Their Honours then cited with approval the following observations of McHugh J in APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44 at [65]-[66]:

Consistently with these observations, Winneke ACJ had earlier said the following in The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at [9]-[10]:

There is nothing in the present case in my view that takes it outside the ordinary type of case to which Winneke ACJ referred. The subject allegations asserted particular matters about particular judicial officers. They did not concern "political or government matters which [were] relevant to the system of representative and responsible government so as to attract the freedom which the Constitution protects" (Herald & Weekly Times at [9]). Accordingly, Mr Dowling's statements were not in my view protected by the implied constitutional freedom of political communication.

If this conclusion is wrong, the question becomes whether the laws pursuant to which the orders allegedly breached by Mr Dowling were made (that is, the Suppression Orders Act and the inherent powers of the Court) were nevertheless valid and effective to restrict the freedom to which he was otherwise entitled. That is, the question arises as to whether the objects of these laws are both “compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” and “reasonably appropriate and adapted to achieving [those] legitimate object[s] or end[s]” (Lange at 562 and 567; see also McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 at [2]; Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43 at [104]).

In Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104 at 187; [1994] HCA 46, Deane J stated that:

This is a legitimate object, compatible “with the maintenance of the constitutionally prescribed system of representative and responsible government” (Lange at 562). The law of contempt seeks to balance the public interest in freedom of expression with the public interest in the administration of justice (John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198; (2000) 181 ALR 694 at [110]-[112]). There is nothing to suggest that the balance struck by that law is an inappropriate one and that the law of contempt is not therefore “reasonably appropriate and adapted to achieving [its] legitimate object or end” (Lange at 562).

Similar considerations apply to the Suppression Orders Act. The following grounds stated in s 8(1), upon which a court may make a suppression order or non-publication order, are legitimate objects in the sense referred to in Lange:

The Act as a whole is “reasonably appropriate and adapted” to achieving these legitimate objects as “[i]n deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice” (s 6). The Act thus involves a balancing of legitimate interests and there is no reason to think that an inappropriate balance has been struck.

Mr Dowling’s challenge to his convictions based on the implied constitutional freedom of political communication should accordingly be rejected.

I add that, even if Mr Dowling had established that the Suppression Orders Act was invalid, that would not have had the consequence that the court orders that he was alleged to have breached would have been invalid (Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 at [11]; Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506; [2015] NSWCA 125 at [61], [114]-[118]). As stated by six justices of the High Court in State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32], concerning an error of the Supreme Court of New South Wales:

This latter point concerning the validity of orders is discussed below, commencing at [127].

In his written submissions on appeal, Mr Dowling complained that the trial judge refused to let him cross-examine Mr Richard Keegan, a solicitor who was present in the Registrar’s Court on 3 February 2017. Mr Keegan’s affidavit was however uncontroversial and Mr Dowling did not identify on appeal any legitimate reason why he should have been permitted to cross-examine Mr Keegan.

Mr Dowling’s complaint should therefore be rejected, as should his complaint that his cross-examination of Mr Keegan at the sentencing hearing was unreasonably curtailed. At that hearing, the primary judge rejected questions that Mr Dowling contended could have established that he had “accused numerous other judges of taking bribes”. These questions were irrelevant and again I conclude that there was no error in the exercise of her Honour’s discretion.

Mr Dowling’s assertion that Wilson J should have disqualified herself and that the proceedings against him should have been heard by an interstate judge should also be rejected. Mr Dowling relied upon the fact that a complaint to the police was made in relation to allegations that he had made on other occasions about a number of judges. However, Wilson J was not one of those judges and there is no basis upon which “a fair-minded lay observer might reasonably” have apprehended that her Honour might not have brought “an impartial mind to the resolution” of the contempt proceedings (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]).

Mr Dowling’s assertions of “judicial bullying” and “prosecutorial misconduct” should also be rejected as having no arguable basis. Similarly, his request for an order that the police return his computer should be rejected as not relevant to the present appeal proceedings.

For the reasons given above, his conviction on Count 2 should be quashed as the order which he was alleged to have breached (Order (1) made on 3 February 2017) was ambiguous. His convictions on Counts 1 and 3 should not be quashed as his grounds for challenging those convictions have been rejected.

Mr Dowling contended that the primary judge erred in sentencing him to a term of imprisonment in respect of Counts 2 and 3 because the Prothonotary did not comply with UCPR r 40.7, which concerns service of a sealed copy of the orders which he was alleged to have breached (the terms of r 40.7 are set out at [88] above). It is clear that a sealed copy of the orders was not served personally, but rather by way of email, and that it did not contain a notification of his liability to imprisonment for their breach. By the terms of what he posted on his website on 5 February 2017, Mr Dowling did however acknowledge receipt of an email copy of the orders.

I cannot, with respect, agree with the primary judge that the rule was inapplicable because the orders were not directed to “any specific person who was to be ‘bound by the judgment’” (see [89] above). In my view, Mr Dowling was a “person bound by the judgment” in the sense referred to in r 40.7(1)(a), notwithstanding that the order was directed to the world at large. Whilst the appropriateness of the order being so directed need not be considered, it is sufficient to say that, unless service was dispensed with, the Prothonotary needed to serve the sealed copy of the orders on any person whom she wished to hold liable for their breach. Mr Dowling was such a person.

The primary judge said, in the alternative, that she would have exercised the dispensing power in r 40.7(5). No good reason has been shown for interfering with her Honour’s putative exercise of that discretion. In particular, her conclusion that Mr Dowling “would have been well aware of the possibility of a custodial sentence being imposed” by reason of the previous service on him in other proceedings of a sealed copy of orders containing the appropriate warning (see [90] above) was a powerful consideration in favour of the exercise of that discretion (cf NCR Australia v Credit Connection [2005] NSWSC 1118 at [52]). Moreover, contrary to the amici curiae submission, her Honour’s finding that there was no reason to conclude that Mr Dowling would have refrained from breaching the orders (see [90] above), if the appropriate notice had been included with the sealed copy of the order, was not irrelevant to the exercise of her Honour’s discretion to dispense with service.

As a further alternative, it would have been open to her Honour to impose a sentence of imprisonment, if she had exercised the discretion conferred by r 40.7(4), because, as contemplated by that subrule, Mr Dowling had been notified of the terms of the orders “by telephone, telegram or otherwise”.

Orders of a superior court are valid unless and until they are set aside (see the authorities, referred to above at [116]). Accordingly, even if the orders made on 3 February 2017 should not have been made, that would not provide a ground for quashing Mr Dowling’s convictions for breaching them. Nevertheless, the fact that orders should not have been made may be relevant to the sentencing of the offender, particularly if there was evidence that the contemnor had a “bona fide and reasonable belief that the orders did not bind [him] for some reason” (Rumble at [118]).

As I have concluded above, Mr Dowling should not have been found guilty of contempt for failing to comply with Order (1) as it was ambiguous (see [104] above). Moreover, the appeal against the making of that Order should be upheld at least on the ground that, because it was ambiguous the Order should not have been made. I add in passing that the Order was in any event vacated on 8 February 2017 (see [76] above).

For at least the following reasons, Order (2) which was made on 3 February 2017 should also not have been made.

First, the ambit of the Order was too wide. If there was a legitimate interest to be protected, it could have been achieved by confining the Order to the non-disclosure of the names of the judicial officers concerned. As McHugh JA said in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477, “an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice”. Those observations are equally applicable to the prohibition of publication of statements made in court which, as here, do not constitute evidence in the proceedings.

Secondly, the Order was futile and therefore not “necessary” in the sense to which McHugh JA referred in John Fairfax v Police Tribunal (ibid). It was futile because it was apparent from what Mr Dowling said to the registrar on 3 February 2017 that the substance of the allegations that he had made in court on that day appeared on his website. The allegations were therefore already in the public domain and in any event the orders did not purport to restrain Mr Dowling from repeating his allegations outside court.

It is unnecessary for the purpose of determining these appeals to consider whether there were further reasons why Order (2) should not have been made, such as whether Mr Dowling’s accusations were not such as members of the public were likely to take seriously and therefore not such as to prejudice the administration of justice (as to which see Prothonotary of the Supreme Court of New South Wales v Dowling (No 6) [2018] NSWSC 1715 at [21]-[32]), or whether the inherent jurisdiction of the Court could be invoked in support of the suppression order made in the present case (see McGuirk v University of New South Wales [2010] NSWCA 104 at [174]-[187]).

It is not necessary to consider Mr Dowling’s claim that the aggregate sentence imposed on him was manifestly excessive, or “extremely harsh”, as the quashing of his conviction on Count 2, which was one of the bases for that aggregate sentence, requires this Court to exercise an independent discretion to re-sentence Mr Dowling in respect of Counts 1 and 3. As indicated earlier, at the conclusion of the hearing of the appeal, this Court made certain orders, including an order re-sentencing Mr Dowling to a fixed term of imprisonment of four months. My reasons for joining in the making of that order are as follows.

For the reasons that the primary judge gave in her conviction judgment, Mr Dowling’s Count 1 conduct constituted a serious contempt of court (see [84] above), and therefore merited significant punishment. Her Honour’s description in her sentencing judgment of the Count 1 conduct as a “disgraceful and scurrilous attack upon the Court”, which must have been “highly disturbing to all of those present”, was well-founded (see [91] above). It is not to the point that judges must “[b]y their training and temperament … [be] able to resist the sting of insults directed at them” (see Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [200] in relation to police officers). As the primary judge said (see [91] above), Mr Dowling’s conduct called into question the integrity of the Court and of individual judicial officers, and thereby interfered with the course of justice.

A term of imprisonment was appropriate in respect of this offence and of the Count 3 offence as Mr Dowling had previously been given a substantial fine in respect of a past contempt and had been imprisoned for four months for a separate contempt (see [94] above). I adopt her Honour’s observation that Mr Dowling’s prospects of rehabilitation are “very limited” and her Honour’s indication that there was only limited information available as to Mr Dowling’s subjective circumstances (see [95] above).

Moreover, I accept her Honour’s description of Mr Dowling’s Count 3 conduct as a “deliberate and wilful defiance of the orders of the Court”, and contumacious (see [91] above). However, the fact, as I have held, that Order (2) should not have been made in my view lessens, although to a limited extent only, the punishment to which Mr Dowling should be subjected under Count 3 for the breach of the Order. Although his beliefs did not have a rational basis, Mr Dowling appears to have been convinced of the righteousness of his position and, it appears to follow, that he believed that he was not obliged to comply with the court orders (see [92] above). By coincidence, and not as a result of any rational analysis, he was correct in thinking that Order (2) should not have been made and that fact should be taken into account on his sentencing to the extent I have mentioned.

For these reasons, it was appropriate for this Court to re-sentence Mr Dowling to four months’ imprisonment.

For the reasons I have given, the following orders should be made in addition to those made on 16 November 2018:

MEAGHER JA: I agree with the reasons and proposed orders of Basten JA.