Laver v Gubler[2007] QSC 302

SUPREME COURT OF QUEENSLAND

[1] MARTIN J:  The applicants seek orders punishing the respondent for contempt arising out of alleged breaches of undertakings given to the Court by the respondent.

History

[2] On 9 October 2003 the applicants filed an originating application seeking, among other things, orders restraining the respondent from dealing with certain confidential information which was the property of the applicants and for the delivery up of that information to the applicants. 

[3] On the same day the applicants obtained an Anton Pillar order, entered the respondent’s premises and searched his computer to ascertain if he had unlawfully obtained information which was confidential to the applicants.  Material of that kind was detected and the matter came back before the Court on 17 October 2003. At that time the application was dismissed upon the respondent giving undertakings that he:

“1.shall not by himself, his servants, agents or otherwise howsoever copy, exploit or use in any manner, or disseminate to any other person in any manner whatsoever, the confidential information being the property of the applicants presently held by him in electronic form, written form or stored or recorded by him in any other form whatsoever or held, stored or recorded in any way by any other person on his behalf;

2. shall forthwith destroy all the confidential information being the property of the applicants presently held, stored or recorded in any manner by the [sic] him or held, stored or recorded on his behalf by any other person;
3. shall not directly or indirectly inform anyone of these proceedings or of the contents of this order, or warn anyone that proceedings may be brought against him by the applicants;
4. shall maintain confidentiality about these proceedings and shall not at any time or by any means directly or indirectly inform any person about:
   1. The information he appropriated from the applicants;
   2. The proceedings brought against him by the applicants;
   3. The contents of these Orders or the Orders dated 9 October 2003.
5. shall never again obtain or seek to obtain information that is confidential to the applicants or the associated entities of the second applicant, or Elan Vital Australia Ltd or its associated entities or members.”

[4] Consequent upon finding the material on the respondent’s computer the applicants commenced proceedings against John McGregor as he was the person to whom the respondent had communicated the confidential information. For the purposes of the McGregor proceedings the respondent swore an affidavit which related the manner in which he provided McGregor with the information and the nature of that information. 

[5] At least from February this year, the respondent engaged in online chat room conversations and, using the pseudonym “Ocker”, discussed the McGregor proceedings and the affidavit he swore in those proceedings.  He stated, in those conversations, that he had been coerced into executing that affidavit.  In a chat room on a site called “Bravenet.com” the respondent set out the affidavit he provided for the McGregor proceedings, inserted his own commentary into various paragraphs and purported to correct the “falsehoods” contained in it. 

[6] By January 2006 the respondent and his then wife, Anita Greenwood, although separated were occupying the same house but on different floors.  Ms Greenwood deposes to being a member of Elan Vital Australia Ltd.  At some time in late January, when Ms Greenwood was absent from the house, the respondent found a laptop computer which belonged to her.  He accessed the files on the computer and found two drafts of a form letter which he copied.  In December 2006 he showed Ms Greenwood a hard copy of that letter.  A copy of the letter was exhibited to the respondent’s major affidavit used at this hearing.

[7] The draft letter appears intended to be sent to members of a parliament and consists of information about the respondent and his actions with respect to Prem Rawat.  Prem Rawat is described in the material as Ms Greenwood’s spiritual mentor.  Elan Vital Australia Ltd is directly associated with Prem Rawat.

Applicable principles

[8] The principles relevant to this application are:

(a) the breach of an undertaking is, like disobedience of an injunction, a contempt of court and renders the contemnor liable to punishment.  Australian Consolidated Press v Morgan (1965) 112 CLR 483, at 496-497;

(b) before a contempt can be made out, it must be shown that the terms of the undertaking are clear and unambiguous.  Iberian Trust Ltd v Founders Trust & Investment Co [1937] 2 KB 87 at 95;

(c) the breach of the terms of an undertaking must be proved beyond reasonable doubt.  Witham v Holloway (1995) 183 CLR 525;

(d) the terms of an undertaking must be obeyed to the letter. Lade & Co Pty Ltd & Ors v Black [2006] 2 Qd R 531;

(e) a deliberate commission or omission which is in breach of an undertaking will constitute contempt unless it be casual, accidental or unintentional.  AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113 and Lade at [65].

Case against the respondent

[9] The affidavit which the respondent posted on internet referred to the earlier proceedings brought by the applicants and the events which surrounded the making and execution of the Anton Pillar order.  It is submitted that, in doing so, the respondent breached undertakings three and four.

[10] As to undertaking number five, it is submitted that it was breached by the respondent copying the file from Ms Greenwood’s computer as it was contrary to that part of the undertaking which provided that the respondent “shall never again obtain … information that is confidential to … Elan Vital Australia Ltd or its … members.”

[11] The respondent has admitted, in his affidavit and submissions that:

(a) he published the affidavit in the manner alleged, and

(b) he copied the file from Ms Greenwood’s laptop computer.

[12] The respondent, who was not legally represented, did not specifically submit that his actions in posting the affidavit on the internet were not in breach of the undertakings.  In fact, during submissions, he said:

“Well to be honest I guess technically they are breaches of the order…”

[13] Much of his affidavit and a large part of his submissions were concerned with what he regarded as the “underhanded” tactics of the applicants and their solicitors.  He said that, in posting the affidavit and his comments, “…it was purely an attempt to have the truth of the situation revealed…”.

[14] With respect to the allegations of breach of undertakings three and four he said:

“…I thought the breaches were done in good faith, were done to rebut falsehoods and lies and deceit that the cult was promoting themselves on their website.”

On a number of occasions he pointed out that much, if not all, of the material he posted on line had already been posted on another site by Elan Vital Australia Ltd.  As Mr Forde for the applicants pointed out, Elan Vital Australia Ltd is not a party to these proceedings and the fact someone else may have revealed documents does not relieve the respondent of his obligations.

[15] The respondent also argued that all he had done was to post an affidavit which had already been used in court proceedings.  That is true, but the affidavit does deal with matters referred to in the undertaking and his extra comments – in which he recants some of the statements in his affidavit – also deal with those matters.

[16] I have not needed to rely on the respondent’s admissions made during the hearing in order to reach a conclusion on the allegation that he has breached the third and fourth undertaking.  I find, on the material filed by the applicant, beyond a reasonable doubt, that the respondent has breached those undertakings and, thus, has committed a contempt.

[17] With respect to the alleged breach of undertaking five, one of the factors which the applicant must establish beyond a reasonable doubt is that Ms Greenwood was, at the relevant time, a member of Elan Vital Australia Ltd.  As is noted above, she deposes to that membership in her affidavit.  The respondent submitted that she was not but provided no contrary evidence.  In the circumstances I find that the applicants have satisfied their burden of proof.  The existence of a particular relationship (such as membership) may be proved by parol evidence although the terms which govern the relationship may be in writing.  Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66 at 75.  That decision was followed in Murphy v Applebee (1959) 3 FLR 361, Cuevas v Freeman Motors Ltd (1975) 25 FLR 67 and Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251.  I find that Ms Greenwood was, at the relevant time, a member of Elan Vital Australia Ltd.

[18] In his affidavit, the respondent expresses his concern that undertaking five can be construed so widely that it could render him subject to continual legal proceedings.  Undertaking five is, indeed, very wide.  But it is the undertaking given by the respondent and just as it is the duty of a person subject to an order to find out the proper mode of complying with the order (see Attorney-General at the relation of the Leyton (Essex) Urban District Council v E Walthamstow Urban District Council (1895) 11 TLR 533 at 534) so it was the respondent’s duty in these circumstances to determine whether the information he was obtaining was confidential to any of the persons identified in undertaking five.

[19] The accessing of Ms Greenwood’s computer files was not casual, accidental or unintentional.  The respondent does say that Ms Greenwood had never, to his knowledge, been a member of Elan Vital Australia Ltd.  While that may be relevant to any question of penalty, it is not to the question of breach.

[20] I find that the respondent has, by his actions described above, breached undertakings three, four and five and is, therefore, in contempt.