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Inserve Australia Ltd v Kinane[2017] QDC 92

Inserve Australia Ltd v Kinane[2017] QDC 92

DISTRICT COURT OF QUEENSLAND

CITATION:

Inserve Australia Ltd (ACN 147 747 859) & Ors v Kinane [2017] QDC 92

PARTIES:

INSERVE AUSTRALIA LTD (ACN 147 747 859)
(first applicant)

and

MICHAEL SIDNEY BYRNE
(second applicant)

and

PAUL BENEDICT BYRNE
(third applicant)

and

JASON KIMBERLEY PARK
(fourth applicant)

and

MARK JOHN WILSON
(fifth applicant)

v

NIGEL KINANE
(respondent)

FILE NO/S:

1983/16

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED ON:

4 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2017

JUDGE:

Farr SC DCJ

ORDER:

  1. The respondent’s application to set aside the order of Jones DCJ dated 2 June 2016 and the order of McGill SC DCJ dated 23 June 2016 is dismissed.
  2. Leave is granted to allow the applicants to file the second amended application in relation to the second charge only.
  3. The applications are dismissed.

CATCHWORDS:

PROCEDURE – CONTEMPT – WHAT CONSTITUTES – where applicants submit that the respondent has breached an order for injunctive relief – where the applicants have a prima facie case – where applicants seek a committal of contempt for the alleged breach.

DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – where material published on social media – where material filed in the court registry – what amounts to publication of defamatory material – consideration of what constitutes the meaning of the words ‘the general public’.

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Bakir v Doueihi [2001] QSC 414

Chiltern District Council v Keane [1985] 1 WLR 619

City Hall Albury Wodonga Pty Ltd & Ors v Chicago Investments Pty Ltd & Ors [2006] QSC 301

Corporate Affairs Com (South Australia) & Anor v Australian Central Credit Union (1985) 157 CLR 201

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575

Emmanuel College v Rowe [2014] QSC 238

Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) & Ors [2000] QCA 108

Iberian Trust Limited Ltd v Founders Trust & Investment Co [1932] 2 KB 87

Madeira v Roggette Pty Ltd [1990] 2 Qd R 357

Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [1998] 4 VR 220

NSW v Kable [2013] HCA 26

Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 20) [2016] NSWSC 855

Rumble v Liverpool Plains Shire Council [2015] NSWSC 855

Stewart v Gymboree Pty Ltd [2001] QCA 307

Criminal Code (Qld) s 567(3)

Defamation Act 2005 s 27

Uniform Civil Procedure Rules 1999 r 22, r 925, r 926

COUNSEL:

S Taylor for the applicants

The respondent was self-represented

SOLICITORS:

Merlo Law for the applicants

Issues for determination

  1. [1]
    By application filed on 13 June 2016, the second to fifth applicants (“the applicants”) seek committal of the respondent for contempt of court which has allegedly occurred on four separate occasions by breaching an order made by Jones DCJ on 2 June 2016, which was made in the following terms:

“Until judgment in this action or earlier order, the defendant is restrained by himself, his servants and agents, from publishing to the general public words that impute or imply that the second, third, fourth and fifth applicants are incompetent, deceptive, greedy, venal, dishonest or that they have engaged in blackmail or bullying.”[1]

  1. [2]
    The respondent seeks to argue, by way of his most recent interlocutory application,[2]that that order and that an order made by McGill SC DCJ on 23 June 2016 ought be set aside, because:
  1. (a)
    the applicants failed to serve the respondent in accordance with the UCPR;
  1. (b)
    the respondent was not present when the orders of 2 June 2016 were made which resulted in a lack of natural justice;
  1. (c)
    the applicants have failed to disclose relevant evidence;
  1. (d)
    the applicants have brought this application for contempt as an abuse of process; and
  1. (e)
    the court did not have jurisdiction when the order was made.
  1. [3]
    It is appropriate to deal with the respondent’s application before considering the contempt application.

Factual background

  1. [4]
    The applicants are officers and shareholders of Inserve Australia Ltd ACN 147 747 859 (“Inserve”). Inserve trades by a subsidiary company under the business name “Construct Services” and provides construction repair services to insurance companies throughout Australia.
  1. [5]
    The respondent was an employee of Inserve from November 2007 until June 2008. He then became a unit holder from July 2008 to June 2011 and subsequently a shareholder of Inserve from July 2011 until January 2013. In January 2013, the respondent was declared not to be an eligible shareholder due to unsatisfactory conduct.[3]
  1. [6]
    In April 2013, the respondent circulated fraudulent documents to Suncorp-Metway Ltd (“Suncorp”) who was, at that time, a major client of Inserve.[4]The fraudulent documentation purported to be a letter from Paul Byrne of Inserve to its shareholders stating, amongst other things, that they had installed a “hidden multiplier” in their invoicing software.[5]The fraudulent documentation subsequently caused Suncorp to undertake numerous audits of its accounts with Inserve and although no evidence existed of such a “hidden multiplier”, Suncorp ultimately decided to cease business with Inserve.
  1. [7]
    On 18 August 2014, the respondent pleaded guilty to charges of fraud and forgery and uttering for circulating that fraudulent letter.[6]
  1. [8]
    Simultaneously with the above event, the respondent commenced what the applicants have described as a defamatory campaign against them through his social media account on Facebook. On numerous dates between 10 August 2013 to May 2016, the respondent published statements on his Facebook account (which was open to the public at large), which related to Inserve and the applicants. The publications were allegedly false, derogatory and extreme in nature. They attacked the personal characteristics of Michael Byrne and Paul Byrne. They imputed that members of the board of Inserve were deceptive, greedy and dishonest and that they had installed some type of “hidden multiplier” into their invoicing system. The publications further imputed that the members of the board of Inserve had engaged in acts of blackmail and bullying.
  1. [9]
    Solicitors acting for the applicants wrote to the respondent on numerous occasions requesting him to remove the offending publications from his Facebook account and for him to cease and desist in such behaviour.[7]The respondent refused and suggested in one Facebook post that only a payment of money would stop his publications.[8]

Procedural background

  1. [10]
    On 20 May 2016, the applicants, through their counsel, handed up to the court a claim and a document entitled “ex parte application” by which they sought to restrain the respondent from publishing defamatory material against the applicants until a final order of the court. The claim did not comply with r 22(2)(b) and (c) of the Uniform Civil Procedure Rules 1999 (“UCPR”) in that it did not attach a statement of claim nor on its face did it disclose that the damages sought were within the jurisdiction of the District Court. Those irregularities were resolved by McGill SC DCJ on 23 June 2016.[9]
  1. [11]
    The applicants undertook on 20 May 2016 to pay any necessary filing fee, and this was subsequently paid. The registry assigned a number as the originating process being number 1983/16 to the ex parte application.
  1. [12]
    On 26 May 2016, the matter came before Everson DCJ who made an order for substituted service on the respondent and adjourned the hearing to 2 June 2016.[10]
  1. [13]
    On 26 May 2016, solicitors for the applicants arranged for the respondent to be served in accordance with the order for substituted service by delivering a bundle of documents to his known address.[11]
  1. [14]
    Simultaneously, solicitors for the applicants also emailed the respondent and attached a copy of all the same material.[12]Within the body of the accompanying email, the solicitors for the applicants made an error by incorrectly stating that the application had been adjourned to 26 June 2016, rather than 2 June 2016.
  1. [15]
    On 1 June 2016, solicitors for the applicant served further documents on the respondent in accordance with the order for substituted service.[13]Included within that documentation was a copy of the orders of Everson DCJ made on 26 May 2016.
  1. [16]
    On 2 June 2016 at 6.57am, the respondent wrote via email to the associate of Martin SC DCJ.[14]Within that email correspondence, the respondent identified that he had just become aware that the application was to be heard that morning, but that he had been informed by the solicitors for the applicants that the application had been adjourned to 26 June 2016. Nevertheless, the respondent did not seek an adjournment of the application nor did he make any complaint about unfairness or a lack of time to prepare. To the contrary, the respondent indicated that he wished not to participate in the application. Relevantly, the respondent stated:

“…I personally don’t wish to waste the court’s time by having to prove that a fictional story on a Facebook page with no reference to anyone real can be manipulated and in pure speculation by an allegedly professional board of directors, then waste the shareholder’s money engaging a throng of highly paid legal professionals.”

  1. [17]
    Later that morning the application came on before Jones DCJ at which time the applicants were represented. His Honour raised two issues aside from the merits of the application itself. The first was in respect to the aforementioned email from the respondent, which was marked by his Honour as Exhibit 1.[15]A reading of the transcript demonstrates that his Honour, prior to making the order, takes into account the fact that the respondent had been wrongly informed that the matter had been adjourned to 26 June 2016, not 2 June 2016.[16]
  1. [18]
    The second issue raised by his Honour was the fact that the claim for damages endorsed on the claim was not on its face a monetary sum within the jurisdiction of the District Court.[17]As a result of that exchange, counsel for the applicants sought and proffered an undertaking by the applicants “to amend the claim by limiting the claim for damages to a sum within the jurisdiction of the District Court.”[18]
  1. [19]
    In respect of the merits of the application, his Honour was satisfied, given the intent and maliciousness of the imputations, that this was one of those rare cases which necessitated the type of order sought. His Honour then made the order in the terms sought by counsel.
  1. [20]
    On 5 June 2016, the order was personally served on the respondent.[19]
  1. [21]
    On 6 June 2016, the respondent sent a message via the online networking platform known as LinkedIn to Mr Darren Walker, who at the time was a senior employee of Insurance Australia Group Limited (“IAG”), that company being a potential client of Inserve. Within the LinkedIn correspondence the applicants contend that the respondent continued to say the type of things which he was ordered not to say. It read as follows:

“Hi Darren,

I was the VVIC Operations Manager and an employee/shareholder of Inserve Aust. Ltd for seven years and they have a District Court Application 1983/16 to prevent me from whistleblowing on how they have hidden multipliers in their software to show and audit the contractual pricing is correct margin but reality the underlying margin meets their 30% profit model demanded by the board. They allege the Suncorp and Comminsure contracts were lost due to my whistleblowing on their practice and lost the contract after both insurers commenced audits of the system using the evidence I provided. (Screenshots from their software). I signed no confidentiality agreement and am in my rights to do so. So far they have a QC and two barristers racing against the clock to gag me. If you can pass this onto the relevant IAG persons involved I am happy to explain via mobile in depth 0474 708 773. They have openly stated in court this action is to prevent me from contacting IAG as a very important contract is about to be signed. Court hearing date is 26 June.

Regards,

Nigel Kinane”[20]

  1. [22]
    The applicants submit the communication amounts to a breach of the order for which they seek a committal of contempt. The respondent admits that he sent the communication.[21]
  1. [23]
    On 9 June 2016, solicitors for the applicants conducted a search of Facebook and discovered that the respondent had reactivated his Facebook account sometime after the order had been made.[22]Upon inspection, it was evident that the respondent had removed some of the offending publications but that there remained some five offending Facebook posts which the applicants had previously complained about.[23]
  1. [24]
    Although he initially denied the matter,[24]the respondent now admits that he reactivated his Facebook account, thus causing all the offending posts to become republished, that he deleted some of the offending posts and that the five posts which are complained of did remain.[25]The respondent now deposes to the fact that he has permanently deleted this particular Facebook page.[26]
  1. [25]
    On 13 June 2016, the applicants filed a further originating application seeking the removal of the Facebook posts which had not been deleted by the respondent. The registry assigned that proceeding with the number 2289/16.[27]On 13 June 2016, the applicants filed an application seeking a charge of contempt arising from the respondent’s reactivation of his Facebook account and a failure by the respondent to remove certain offending Facebook posts.[28]
  1. [26]
    On 16 June 2016, the respondent filed a document entitled “Response to Application” and a supporting affidavit by which he seeks to defend the charges of contempt.[29]
  1. [27]
    Within his affidavit, the respondent admits that he reactivated his Facebook account and further admits that some five publications remained posted on his Facebook page after being served with a copy of the order. The respondent seeks to argue that the posts which remained did not offend the order, and thus no charge of contempt arises.[30]
  1. [28]
    The applicants submit that the respondent’s first affidavit which was filed in support of his defence (Court Document no. 22) contains material which is further offensive to the order. For example, the respondent alleges at paragraph 11 that the applicants are engaged in practices of harassment, bullying and stalking by this litigation. At paragraph 12, the respondent alleges that the applicants have previously engaged in practices of harassment, bullying and blackmail. The applicants submit that these are the types of things which the respondent has been ordered not to publically say, at least not without further court order. The applicants submit that the respondent does not have ‘safe harbour’ from the terms of the order simply because he now uses the vehicle of an affidavit.
  1. [29]
    To address the issue, the applicants seek leave to file a second amended application for contempt in respect of paragraphs 11 and 12 of Court Document no. 22. The applicants further seek that the relevant affidavit be placed in a sealed envelope pending further order from the court.
  1. [30]
    On 20 June 2016, the respondent filed a document entitled “Reply to Application” and a further affidavit by which he seeks to defend the charges of contempt.[31]The content of this further affidavit (Court Document no. 24) is also alleged to be scandalous and vexatious. Again, the applicants submit that the respondent continues to say the type of things that he has been ordered not to say and that again he is in contempt of the order by the content of this affidavit. The applicants seek leave to file a second amended application for contempt in relation to that document, and seek a charge of contempt in respect of same. They also submit that that affidavit be placed within a sealed envelope pending further order of the court.
  1. [31]
    On 20 June 2016, the application came before McGill SC DCJ at which time the applicants were represented. His Honour raised with Senior Counsel for the applicants a number of procedural issues, including whether the filed claim properly invoked the jurisdiction of the District Court and whether the undertaking given by Senior Counsel for the applicants on 2 June 2016 had been fulfilled. His Honour then offered Senior Counsel for the applicants an opportunity to review the endorsements made by the associates on the inside cover of the court file and adjourned the matter to 23 June 2016.
  1. [32]
    The matter returned before his Honour on 23 June 2016. Supplementary submissions were handed up by Senior Counsel for the applicants which explained the procedural chronology of the matter.[32]In order to fulfil the undertaking given by Senior Counsel for the applicants on 2 June 2016, Senior Counsel sought and was given leave to file an amended claim which disclosed that the plaintiff’s claim was within the jurisdiction of the District Court.[33]His Honour thus satisfied himself of the procedural irregularity, made the orders which the applicants sought (including a further interlocutory injunction) and adjourned the application for contempt to the civil list for a two day hearing.
  1. [33]
    During the 23 June 2016 hearing, McGill SC DCJ briefly raised two issues which his Honour opined might warrant further attention in the contempt application. The first issue identified by his Honour was whether Jones DCJ on 2 June 2016 had considered and dealt with the fact that the respondent had been wrongly informed that the matter had been adjourned to 26 June 2016, not 2 June 2016.[34]As I have already noted, Jones DCJ did consider that fact. The second issue identified by McGill SC DCJ was whether the respondent could be in contempt of an order made before the jurisdiction of the court was properly invoked by the fulfilment of an undertaking to so invoke it.[35]
  1. [34]
    I note also that McGill SC DCJ noted that the respondent had admitted in his material that he had reactivated his Facebook account which would stand as an admission. His Honour then expressly warned the respondent that he was not obligated to file any further material, which the respondent acknowledged.[36]The respondent has not heeded that warning.
  1. [35]
    On 8 July 2016, the applicants filed an amended contempt application. The material change to the application was to particularise the charge arising from the LinkedIn communication occurring on 6 June 2016.
  1. [36]
    On 5 August 2016, the respondent filed a document entitled “Defence” by which he further seeks to defend the contempt application.[37]By that document the respondent again admits that he reactivated his Facebook account and further admits that he sent the LinkedIn communication.
  1. [37]
    The applicants submit that there is therefore no factual contest in relation to the events which the applicants submit amount to a breach of the order and constitute a contempt of court. The applicants submit that they have presented a prima facie case to the court.
  1. [38]
    During oral submissions before me, the respondent did not give or call any further evidence in addition to that which he relies upon by way of affidavit.

Respondent’s application

  1. [39]
    The respondent was served with all relevant material, other than a copy of Everson DCJ’s order (which was not yet available at that time) on 26 May 2016 by both the material being affixed to the front door of his residence as well as by email.[38]The covering email letter incorrectly advised the respondent that his Honour had adjourned the matter to 26 June 2016 rather than 2 June 2016. Service of further more recent material was then served on the defendant at 8.27pm on 1 June 2016 by it being left at his front door. That material included a copy of Everson DCJ’s order adjourning the application to 2 June 2016.[39]
  1. [40]
    Whilst service occurred on these occasions in a manner consistent with the order for substituted service, the respondent did not know that the matter had been adjourned to 2 June 2016 until sometime after 8.27pm on 1 June 2016. In fact, the respondent states that he first learned of the correct date early in the morning on 2 June.
  1. [41]
    Nevertheless, the email correspondence from the respondent to Martin SC DCJ’s associate on 2 June 2016 demonstrates that the respondent was not willing to participate in the application that day even though he was aware that it was to be heard. The allegation which the respondent now makes that he “expressed his concern of the unfairness of the lack of time to prepare” is not consistent with the contents of the email he sent.[40]The email correspondence contains no such complaint.
  1. [42]
    The allegation that the respondent was not afforded procedural fairness is inconsistent with that email. No adjournment was requested, no complaint was made about his inability to make an argument and the respondent expressed his desire to not participate in the application. Furthermore, the question as to whether the order is invalid due to lack of procedural fairness is not one for this court to now entertain. Rather that would be a matter for a court of appellate jurisdiction. I note though that the time for an appeal has long since passed.
  1. [43]
    The fact that the respondent was wrongly informed by way of clerical error that the application was to be heard on 26 June 2016 rather than 2 June 2016 was expressly considered by Jones DCJ when he made the relevant order. If the respondent contends that that decision was wrong then once again that would not be a question for this court.
  1. [44]
    There were indeed numerous procedural irregularities in proceeding number 1983/16 as raised by McGill SC DCJ on 20 June 2016. The irregularity was cured by the filing of the amended claim for which his Honour granted leave on 23 June 2016. The transcript of 23 June 2016 demonstrates that his Honour explained the nature of the application for leave to the respondent and that the respondent did not object to leave being granted.[41]
  1. [45]
    The respondent also claims that the applicants “fail[ed] to disclose relevant evidence” to the court on 2 June 2016.[42]As I understand that submission, the evidence which was not allegedly disclosed related to the historic dispute between the applicants and the respondent. It was not material which was of relevance to the issue before Jones DCJ.
  1. [46]
    Finally, the respondent has submitted that the court did not have jurisdiction when the order was made. I note however that in Rumble v Liverpool Plains Shire Council, Beazley P observed at [60]-[61]:[43]
  1. “[60]
    It is of central importance to the proper function of the rule of law and the effective administration of justice that orders of the court are, and are treated as, valid until set aside. The court’s power to punish for contempt for failing to obey a court order is the means by which the court’s authority in respect of its orders is maintained. As the High Court stated in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd 161 CLR 98, at 107:

‘Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced.’

  1. [61]
    If a party wishes to dispute the correctness of an order made by the court, it is necessary to seek to have the order set aside, and for this purpose a party must invoke the processes of the court for the purpose of having a determination made as to whether an order was properly made: Papas v Grave at [70]. However, orders of the court must be treated as valid and enforceable until set aside. The rationale for this principle was explained by the plurality in NSW v Kable 87 ALJR 737 at [39], as follows:

‘Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order.’”

  1. [47]
    It follows that unless and until Jones DCJ’s order is set aside, it is to be treated as a valid order and compliance is required. Given that all jurisdictional issues were resolved in June last year, the respondent’s submission that the order should be set aside has no basis.
  1. [48]
    For these reasons, the respondent’s application to set aside Jones DCJ’s order of 2 June 2016 and McGill SC DCJ’s order of 23 June 2016 is dismissed.

Contempt of application

Civil contempt

  1. [49]
    Atkinson J has helpfully discussed the history of “contempt of court” in a number of decisions and I do not intend to repeat her Honours words here.[44]In Emmanuel College v Rowe, her Honour also goes on to discuss at [18] to [22] the aspects that must be considered for an application for a person to be dealt with for civil contempt: 
  1. “[18]
    An application for a person to be dealt with for civil contempt has two main aspects. Firstly, it is for the benefit of the party who has the benefit of a court order which has been breached. Secondly, however, it is designed to punish disobedience of orders of the court. There is both a private and a public interest in compliance with court orders. As Salmon LJ said in Jennison v Baker:

‘The public at large, no less than the individual litigant, have an interest, and a very real interest, in justice being effectively administered.’

  1. [19]
    Edmund-Davies LJ quoted with approval from the judgment of Cross J in Phonographic Performance Ltd v Amusement Caterers (Peckham) Ltd:

‘Where there has been wilful disobedience to an order of the court and a measure of contumacy on the part of the defendants, then civil contempt, what is called ‘contempt of procedure’, bears a two-fold character, implying as between the parties to proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the state, a penal disciplinary jurisdiction to be exercised by the court in the public interest.’

  1. [20]
    As the High Court held in Witham v Holloway, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect.
  1. [21]
    This was reiterated by Keane JA in Camm v ASI Development Company Pty Ltd where his Honour observed at p 8:

‘the purpose of punishment for contempt of court is to vindicate the authority of the court, and to protect the interests of the party who has the benefit of an order of the court by coercing the recalcitrant party into performing his or her obligations.’

  1. [22]
    These two aspects of a civil contempt constituted by the failure to abide by an order of a court or an undertaking given to a court, have an inevitable impact on the procedure and standard of proof to be followed in such a case. In Witham v Holloway, the court held that the differences between civil and criminal contempt are illusory. The fact that the usual outcome of successful proceedings is punishment, makes it clear, as Deane J said in Hinch v A-G (Vic), that all proceedings for contempt “must realistically be seen as essentially criminal in nature”. The consequence is that all charges of contempt must be proved beyond reasonable doubt. The judgment of the High Court in Consolidated Press Ltd v McRae, a case of criminal contempt, is therefore apposite, where it held:

‘Like every other offence the facts by which it is made out must be proved by admissible evidence to the satisfaction beyond reasonable doubt of the tribunal. Uncertain inferences from inexact proofs will not support such a charge.’”

  1. [50]
    As stated above, all charges of contempt must be proved beyond reasonable doubt. Furthermore:
  1. (a)
    if a failure to comply with orders of the court may lead to punishment by imprisonment, then the orders must be worded in clear and unambiguous terms so that the party effected knows what he or she must do or refrain from doing;[45] 
  2. (b)
    a breach of a court order will not constitute contempt unless it is wilful and not casual, accidental or unintentional;[46] and 
  3. (c)
    there is no trial by jury and an application for punishment for contempt is brought in the civil jurisdiction of the court.

Queensland law

  1. [51]
    The contempt provisions can be found in Chapter 20 of the UCPR. In particular, Pt 7, Div 3, r 925(1)(a) provides that Div 3 applies to “contempt constituted by failure to comply with an order of the court or an undertaking given to the court”. Rule 926 requires particularisation of the charges – which has adequately been met in this case. The charges are confined to the particulars given.[47]

Application to file second amended contempt application

  1. [52]
    The applicants seek the court’s leave to file a second amended contempt application. The legal issue which arises from the proposed amendment is whether a party can be in contempt of court orders by stating certain things within an affidavit, after being ordered not to publicly say such things.
  1. [53]
    The applicants submit that the court should grant leave in respect of the filing of the second amended contempt application, because:
  1. (a)
    to disallow the amendment would encourage a multiplicity of proceedings, which would be at odds with the intention and purpose of the UCPR; and
  1. (b)
    the respondent has not to date demonstrated that any prejudice would arise from such an order. 
  1. [54]
    It follows that this potential charge of contempt arises for consideration only if the court grants leave to file the second amended application which contains a third and fourth allegation. These allegations complain that the respondent has offended the order by filing further material in which he expressly states and by which it is implied that the applicants are incompetent, deceptive, greedy, venal, dishonest or that they have engaged in blackmail or bullying.
  1. [55]
    A number of considerations arise. The first is that McGill SC DCJ made the following order on 23 June 2016:
  1. “[4]
    The plaintiff’s application for contempt of the order of His Honour Judge Jones made on 2 June 2016 (the Contempt Application) be adjourned to the Civil List for hearing for two days from 15 September 2016 and it be directed that any amendment to the Contempt Application by the plaintiff together with all further material upon which they rely be filed and served by 8 July 2016.”[48]
  1. [56]
    The two affidavits the subject of the second amended contempt application were filed on 16 June 2016 (Court Document no. 22) and 20 June 2016 (Court Document no. 24) respectively. The applicants are approximately eight and a half months outside of the time limit set down by his Honour. No explanation for that delay has been provided.
  1. [57]
    The applicants, through their counsel, have submitted that the respondent has provided no evidence or made any submissions as to how he might be prejudiced because of this delay. This is indeed correct. However it must be remembered that the respondent is self-represented in this matter, and like most self-represented litigants, struggled to articulate his submissions. It seems to me that a clear and obvious prejudice to the respondent arises if leave were to be granted, and that is that the respondent runs the risk of being punished by way of sentence, perhaps to imprisonment, if the contempt allegations are proved to the requisite standard. This, however, is not the only consideration relevant to this issue.
  1. [58]
    Counsel for the applicants was unable to place any authority before this court supporting the contention that statements in an affidavit which has been filed in proceedings would or could constitute the contempt alleged. I find that lack of authority hardly surprising. Section 27(1) of the Defamation Act 2005 provides that it is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege. Subsection (2)(b)(i) provides that the matter is published on an occasion of absolute privilege if the matter is published in the course of the proceedings of an Australian court, including the publication of matter in any document filed with the court.
  1. [59]
    Given the above, I have tremendous difficulty in accepting that a person can be punished for contempt by making defamatory comments in an affidavit filed in a court proceeding when any allegation of defamation arising from that comment must necessarily fail.
  1. [60]
    Finally, on this issue, there appears to me to be considerable uncertainty as to whether the filing of such affidavit material would or could constitute “publishing to the general public”.
  1. [61]
    For these reasons I am of the view that it would not be an appropriate exercise of discretion to grant leave to allow the filing of the second amended application in relation to the third and fourth charges. That application is therefore refused in respect of those charges.

First charge of contempt

  1. [62]
    The applicants have particularised the first charge of contempt as having two distinct aspects. The first relates to the respondent’s reactivation of his Facebook account and the second relates the respondent leaving some five offending Facebook posts for a period thereafter.
  1. [63]
    The respondent admits to reactivating his Facebook account. No doubt that was a deliberate event which required at the very least, a login username and a password. The respondent knew his Facebook account was publicly viewable and he did not take any steps to make it private prior to or after reactivation. That reactivation cannot however constitute a breach of the order as the reactivation occurred prior to the respondent being notified of the terms of the order.[49]A person cannot be guilty of contempt of a court order if that person does not know of the existence of such an order.
  1. [64]
    Before I turn to consider the content of the posts which remained on the respondent’s Facebook account after he was advised of the terms of the order, another issue requires resolution. That is, what is meant by the term “published to the general public” in the order?
  1. [65]
    In the context of defamation, the High Court discussed the concept of publication in Dow Jones & Co Inc v Gutnick[50]where Gleeson CJ, McHugh, Gummow and Hayne JJ stated at [26]: 

“Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension.”

  1. [66]
    Notwithstanding that the word “publish” may generally be thought to mean the issuing or causing to be issued of printed material for sale or distribution or to announce or proclaim or to make publicly or generally known, such definitions are not apt in the circumstances of this matter, given that the claim in this matter is one of defamation, and that the order in question was made for the express purpose of protecting the applicants’ reputations. In other words, the order was made in an attempt to prevent the respondent from defaming the applicants. In such circumstances, the definition for the word “publish” is that which applies in cases of defamation. Therefore, publication has not occurred until the matter complained of is read or seen by a recipient.
  1. [67]
    In this matter, a further qualification exists. That is, the order will only potentially be breached if the offending material is published to “the general public”. What is meant by the term “the general public” is most unclear. During the proceedings before Jones DCJ, the alleged behaviour of the respondent which persuaded his Honour to make the orders sought was the “posting” of various comments on Facebook. His Honour was advised by Senior Counsel for the applicants that those Facebook posts resulted in responses from readers indicating that, at different times, for different posts, three, four, five, or seven different people had viewed the post in question.[51]Quite obviously, the respondent did not have a big following.
  1. [68]
    In the contempt application however, no evidence is before the court as to whether anyone other than a law clerk in the employ of the applicants’ solicitors has seen or read the posts that are said to constitute a breach of the order. Furthermore, given the very small number of people who had indicated that they had been his posts on the earlier occasions, I am unable to infer from that fact that others would have read or at least seen the subject posts.
  1. [69]
    The question which then arises is whether that law clerk, Mr Tweedale, would fall within the definition of “the general public”.
  1. [70]
    The term “the general public” is imprecise, although this should not be taken to be a criticism of his Honour’s order. His Honour made the order which was sought by the applicants as per the draft which was presented to him.
  1. [71]
    In Corporate Affairs Com (South Australia) & Anor v Australian Central Credit Union,[52]the issue was whether an offer of units in a unit trust to the members of the Credit Union totalling approximately $23,000 was “an offer to a section of the public”. Mason ACJ, Wilson, Deane and Dawson JJ said at p 208: 

“The question whether a particular group of persons constitutes a section of the public for the purposes of s 5(4) of the Code cannot be answered in the abstract. For some purposes and in some circumstances, each citizen is a member of the public and any group of persons can constitute a section of the public. For other purposes and in other circumstances, the same person or the same group can be seen as identified by some special characteristic which isolates him or them in a private capacity and places him or them in a position of contrast with a member or section of the public. In a case where an offer is made by a stranger and there is no rational connexion between the characteristic which sets the members of a group apart and the nature of the offer made to them, the group will, at least ordinarily, constitute a section of the public for the purposes of the offer. If, however, there is some subsisting special relationship between offeror and members of a group or some rational connexion between the common characteristic of members of a group and the offer made to them, the question whether the group constitutes a section of the public for the purposes of the offer will fall to be determined by reference to a variety of factors of which the most important will ordinarily be: the number of persons comprising the group, the subsisting relationship between the offeror and the members of the group, the nature and content of the offer, the significance of any particular characteristic which identifies the members of the group and any connexion between that characteristic and the offer…”

  1. [72]
    Those comments, when considered in conjunction with the fact that in this matter the only evidence is that the posts were viewed by one person, who was, no doubt, instructed to look for them in the course of his employment at the law firm representing the applicants, lead me to conclude that Mr Tweedale does not fall within the meaning of “the general public”. Hence, it follows that there is no evidence before the court that the respondent breached the order made on 2 June 2016 by “publishing those posts to ‘the general public’”.
  1. [73]
    Furthermore, as I indicated earlier, orders must be worded in clear and unambiguous terms so that the party affected knows what he or she must do or refrain from doing. For the reasons given, I am not satisfied that the terms of this order are clear and unambiguous. My view is supported in that regard by the terms of the order made by McGill SC DCJ on 23 June 2016 in this matter wherein his Honour, relevantly ordered that the respondent be restrained from communicating in any way with 36 named persons and/or entities in relation to any matter of or concerning the first plaintiff and its current or future business relationships with such persons and entities. His Honour also relevantly ordered that the respondent is restrained from disclosing to any person or entity any of the first plaintiff’s confidential information, trade secrets, business practices, business know-how or internal memoranda, whether such information exists in written or digital or other tangible form or otherwise and which the respondent acquired during his employment with and/or shareholding in the first plaintiff.
  1. [74]
    It follows that the applicants have not presented a prima facie case of contempt in relation to this charge. I therefore do not need to consider the content of the posts themselves, nor do I need to refer to any submission by the respondent (which was effectively that he felt that truth was a defence to the charge of contempt). The application in relation to this charge is dismissed.

Second charge of contempt

  1. [75]
    The second charge of contempt relates to the written communication from the respondent to Mr Darren Walker on 6 June 2016 via the online networking platform known as LinkedIn. There is no doubt that on this occasion the respondent published the material in question as evidence is before the court that the respondent’s message was read by Mr Walker. Equally, given the content of the message I am of no doubt that the words impute or imply that the applicants are deceptive, greedy, dishonest and have engaged in bullying. The only issue is whether the communication would constitute a publication to the general public. Whilst I have no hesitation in accepting that Mr Walker would be a member of the general public, there is a real issue as to whether he alone, would satisfy the term “the general public”.
  1. [76]
    Returning to Corporate Affairs Com (South Australia) & Anor v Austn Central Credit Union, I note that Mason ACJ, Wilson, Deane and Dawson JJ said at p 209: 

“No particular number of persons can be designated as being, of itself, necessarily sufficient or inadequate to constitute the public or a section of the public for every purpose. “Anything from two to infinity may serve: perhaps even one, if he is intended to be the first of a series of subscribers, but makes further proceedings needless by himself subscribing the whole”: Nash v Lynde [1929] AC 158, at 169”.

  1. [77]
    In this matter, there is no evidence to suggest that the communication to Mr Walker was intended to be the first in a series, although I note that he did ask Mr Walker if he could pass his information onto “the relevant IAG persons involved”. Mr Walker did not act on that request and, in fact, immediately passed on the message to the third applicant. In the circumstances, I am not satisfied beyond reasonable doubt that the singular communication to Mr Walker constitutes a publication to “the general public”. At the very least, a significant ambiguity exists, and, in accordance with established principle, the respondent should not be convicted of contempt.
  1. [78]
    Accordingly, whilst I am satisfied that a prima facie case exists against the respondent in relation to this charge, I am not satisfied that all essential elements have been proved to the requisite standard.
  1. [79]
    I note that in the amended application the applicants have particularised this allegation of contempt as being part of charge one,[53]whereas in the second amended application it is the subject of a separate, second charge. In the amended application, charge one is particularised by a number of separate actions and events, each one of which is potentially capable of constituting the offence of contempt of court. Given the prohibition on a single charge containing allegations of more than one offence (other than in statutorily prescribed circumstances) on indictment,[54]in my view the same consideration should apply in circumstances such as this, remembering that an application of this nature is “realistically essentially criminal in nature”. Accordingly, it is appropriate to grant the applicants leave to file the second amended application in relation to the second charge only, notwithstanding that that charge will be dismissed.

Orders:

  1. The respondent’s application to set aside the order of Jones DCJ dated 2 June 2016 and the order of McGill SC DCJ dated 23 June 2016 is dismissed.
  1. Leave is granted to allow the applicants to file the second amended application in relation to the second charge only.
  1. The applications are dismissed.

Footnotes

[1]  Court Document no. 15.

[2]  Court Document no. 44.

[3]  Affidavit of Paul Byrne filed 20 May 2016 (Court Document no. 3) at para 10.

[4]  Ibid at para 11.

[5]  Affidavit of Paul Byrne filed 26 May 2016 (Court Document no. 4) at Exhibit “E”.

[6]  Affidavit of Paul Byrne filed 20 May 2016 (Court Document no. 3) at Exhibit “A”.

[7]  Ibid at Exhibit “C”.

[8]  Affidavit of Daniel Tweedale filed 20 May 2016 (Court Document no. 2) at Exhibit “A” at p 10.

[9]  Court Document no. 33; see also Supplementary Written Submissions filed by the applicants on 23 June 2016 (Court Document no. 31).

[10]  Court Document no. 8.

[11]  Affidavit of Daniel Tweedale filed 1 June 2016 (Court Document no. 9) at paras 6-10.

[12]  Affidavit of Daniel Tweedale filed 13 June 2016 (Court Document no. 19) at para 12.

[13]  Affidavit of Service by Bernard Delaney filed 2 June 2016 (Court Document no. 11) at para 1.

[14]  Affidavit of Nigel Kinane filed 23 June 2016 (Court Document no. 29) at Exhibit “D” p 6.

[15]  Transcript of proceedings p 1-3, L 3.

[16]  Transcript of proceedings p 1-5, ll 0-10 and pp 1-14, L 45 to pp 1-15, L 5.

[17]  Transcript of proceedings p 1-6, ll 5-45; pp 1-7, ll 1-25.

[18]  Transcript of proceedings p 1-15, ll 10-15.

[19]  Affidavit of Service filed 15 June 2016 (Court Document no. 20).

[20]  Affidavit of Paul Byrne filed 23 June 2016 (Court Document no. 26) at Exhibit “E”.

[21]  See document titled “Defence” at para “k” (Court Document no. 36); and Defence to Substantive Proceeding filed 5 August 2015 at paras 110-114 (Court Document no. 38).

[22]  Affidavit of Daniel Tweedale filed 13 June 2016 (Court Document no. 19) at para 10.

[23]  Ibid at para 14.

[24]  Affidavit of Daniel Tweedale filed 23 June 2016 (Court Document no. 26) at Exhibit “A” pp 2-3.

[25]  Affidavit of John Merlo filed 23 June 2016 (Court Document no. 27) at “JM-1”.

[26]  Affidavit of Nigel Kinane filed 16 June 2016 (Court Document no. 22) at para 16.

[27]  Court Document no. 16.

[28]  Court Document no. 17.

[29]  Court Documents no. 21 and no. 22.

[30]  The respondent’s position with respect to the Facebook posts is summarised within a table provided at Exhibit “A” to Court Document no. 22.

[31]  Court Documents no. 23 and no. 24.

[32]  Court Document no. 31.

[33]  Transcript of proceedings 23 June 2016 at pp 1-12, L 40 to pp 1-15, L 5.

[34]  Transcript of proceedings 23 June 2016 at pp 1-11, L 40.

[35]  Transcript of proceedings at p 1-16, ll 30-40.

[36]  Transcript of proceedings at p 1-19, L 20 to pp 1-20, L 10.

[37]  Court Document no. 36.

[38]  Affidavit of Daniel Tweedale filed 1 June 2016 (Court Document no. 9) at paras 6-10.

[39]  Affidavit of Bernard Delaney filed 2 June 2016 (Court Document no. 11) at para 1.

[40]  The respondent makes this allegation by his “Defence” filed 5 August 2016 (Court Document no. 36) at sub-paragraph (c).

[41]  Transcript of proceedings 23 June 2016 pp 1-13, L 10 – pp 1-15 L 5.

[42]  Transcript of proceedings 31 March 2017 pp 1-6, L 33.

[43]  [2015] NSWCA 125; see also Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 20) [2016] NSWSC 855 at [15] and [16].

[44]Bakir v Doueihi [2001] QSC 414 at [5]-[8]; City Hall Albury Wodonga Pty Ltd & Ors v Chicago Investments Pty Ltd & Ors [2006] QSC 301; Emmanuel College v Rowe [2014] QSC 238 at [16] and [17].

[45]Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [1998] 4 VR 220 at 222; Iberian Trust Limited Ltd v Founders Trust & Investment Co [1932] 2 KB 87 at 95; Emmanuel College v Rowe [2014] QSC 238 at [23].

[46]Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 111; Madeira v Roggette Pty Ltd [1990] 2 Qd R 357 at 363, 366; Stewart v Gymboree Pty Ltd [2001] QCA 307 at [35]; Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) & Ors [2000] QCA 108 at [32]; Emmanuel College v Rowe [2014] QSC 238 at [24].

[47]Chiltern District Council v Keane [1985] 1 WLR 619.

[48]  Court Document no. 33.

[49]  Affidavit of Daniel Tweedale filed 13 June 2016 (Court Document no. 19) para 10 and 12.

[50]  (2002) 210 CLR 575.

[51]  Transcript of proceedings p 1-10, L 40 to p 1-11, L 39.

[52]  (1985) 157 CLR 201.

[53] Court Document no. 35.

[54] Criminal Code (Qld) s 567(3).

Close

Editorial Notes

  • Published Case Name:

    Inserve Australia Ltd (ACN 147 747 859) & Ors v Kinane

  • Shortened Case Name:

    Inserve Australia Ltd v Kinane

  • MNC:

    [2017] QDC 92

  • Court:

    QDC

  • Judge(s):

    Farr DCJ

  • Date:

    04 May 2017

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2017] QDC 9204 May 2017Respondent's application to set aside the order of Jones DCJ dated 2 June 2016 and the order of McGill DCJ dated 23 June 2016 dismissed; applicant's applications for the committal of the respondent for contempt dismissed: Farr SC DCJ.
Notice of Appeal FiledFile Number: Appeal 5433/1731 May 2017-
Appeal Determined (QCA)[2018] QCA 116 [2019] 1 Qd R 29908 Jun 2018Application for leave to appeal refused: Fraser and Gotterson and Philippides JJA.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
2 citations
Jump To
Cite 1 - (1986) 161 CLR 98
Cite 2 - (1986) 161 CLR 98
Australian Associated Motor Insurers Limited v McPaul [2006] QSC 301
2 citations
Jump To
Cite 1 - [2006] QSC 301
Cite 2 - [2006] QSC 301
Bakir v Doueihi [2001] QSC 414
2 citations
Jump To
Cite 1 - [2001] QSC 414
Cite 2 - [2001] QSC 414
Chiltern District Council v Keane [1985] 1 WLR 619
2 citations
Jump To
Cite 1 - [1985] 1 WLR 619
Cite 2 - [1985] 1 WLR 619
Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201
2 citations
Jump To
Cite 1 - (1985) 157 CLR 201
Cite 2 - (1985) 157 CLR 201
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
2 citations
Jump To
Cite 1 - (2002) 210 CLR 575
Cite 2 - (2002) 210 CLR 575
Emmanuel College v Rowe [2014] QSC 238
4 citations
Jump To
Cite 1 - [2014] QSC 238
Cite 2 - [2014] QSC 238
Cite 3 - [2014] QSC 238
Cite 4 - [2014] QSC 238
Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch)[2001] 2 Qd R 118; [2000] QCA 108
2 citations
Jump To
Cite 1 - [2000] QCA 108
Cite 2 - [2000] QCA 108
Iberian Trust, Ltd v Founders Trust and Investment Co [1932] 2 KB 87
2 citations
Jump To
Cite 1 - [1932] 2 KB 87
Cite 2 - [1932] 2 KB 87
Madeira v Roggette Pty Ltd [1990] 2 Qd R 357
2 citations
Jump To
Cite 1 - [1990] 2 Qd R 357
Cite 2 - [1990] 2 Qd R 357
Nash v Lynde [1929] AC 158
1 citation
Jump To
Cite 1 - [1929] AC 158
New South Wales v Kable [2013] HCA 26
1 citation
Jump To
Cite 1 - [2013] HCA 26
New South Wales v Yau Hang Chan (No 20) [2016] NSWSC 855
2 citations
Jump To
Cite 1 - [2016] NSWSC 855
Cite 2 - [2016] NSWSC 855
Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [1998] 4 VR 220
2 citations
Jump To
Cite 1 - [1998] 4 VR 220
Cite 2 - [1998] 4 VR 220
Rumble v Liverpool Plains Shire Council [2015] NSWSC 855
1 citation
Jump To
Cite 1 - [2015] NSWSC 855
Rumble v Liverpool Plains Shire Council [2015] NSWCA 125
1 citation
Jump To
Cite 1 - [2015] NSWCA 125
Stewart v Gymboree Pty Ltd [2001] QCA 307
2 citations
Jump To
Cite 1 - [2001] QCA 307
Cite 2 - [2001] QCA 307

Cases Citing

Case NameFull CitationFrequency
Contempt (2024) 1 QLJ 100 1 citation
Inserve Australia Ltd v Kinane[2019] 1 Qd R 299; [2018] QCA 11635 citations
1

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