FEDERAL COURT OF AUSTRALIA

Kazal v Thunder Studios Inc (California) [2017] FCAFC 111

ORDERS

THE COURT ORDERS THAT:

1.    The convictions on charges 6 and 7 be quashed and those charges be dismissed.

2.    The sentences on charges 3, 5, 8 and 9 be set aside and in lieu thereof the appellant be sentenced as follows:

(a)    on charge 3, sentenced to imprisonment for 9 months commencing 27 February 2017 and concluding on 26 November 2017;

(b)    on charge 5, sentenced to imprisonment for 6 months commencing 27 February 2017 and concluding on 26 August 2017 (that is, concurrent with the sentence for charge 3);

(c)    on charge 8, sentenced to imprisonment for 6 months commencing on 27 May 2017 and concluding on 26 November 2017 (that is, cumulative as to 3 months with the sentences for charges 3 and 5); and

(d)    on charge 9, sentenced to imprisonment for 12 months commencing on 27 May 2017 and concluding on 26 May 2018 (that is, concurrent with the sentence for charge 8 and cumulative as to 3 months with the sentences for charges 3 and 5).

3.    The appellant pay the costs of the respondents of and incidental to the appeal on an indemnity basis.

4.    The appeal otherwise be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

1    This is an appeal from convictions and sentences imposed on the appellant, Adam Kazal, by a judge of this Court on six out of nine charges of contempt of court. The appellant was acquitted on the remaining three charges. Six concurrent terms of imprisonment were imposed, the shortest being for two months, and the longest for 18 months.

2    The appellant unsuccessfully applied for a stay of the orders made by the primary judge on conviction and sentence, and for bail pending the hearing and determination of this appeal: Kazal v Thunder Studios Inc (California) [2017] FCA 238 (Katzmann J). He has been in custody since 27 February 2017.

Background

3    On 15 August 2014, the respondents commenced proceedings in this Court against the appellant and his brother, Charif Kazal, by way of an application and statement of claim (the substantive proceedings). On 13 March 2015, the respondents filed an amended statement of claim in the substantive proceedings, which pleaded against the appellant and Charif allegations of misleading or deceptive conduct, malicious falsehood and defamation. This was pleaded as having arisen out of alleged untrue representations made on a particular website bearing the name of the appellant’s family (Family Website). Those representations made various allegations of impropriety on the part of the applicants, and in particular as relevant to this appeal, on the part of the second respondent, Mr Rodric David. The allegations apparently arose out of a long-running and bitter business relationship breakdown and dispute. Similar allegations were made by the respondents in respect of separate Twitter feeds alleged to be operated by each of the appellant and his brother Charif. The defamation aspect of the respondents’ case also turned on allegations arising out of certain court proceedings overseas which do not require any further elaboration.

4    On 4 November 2016, the respondents filed an interlocutory application by which they sought injunctions to restrain the appellant from making public statements of the kind that were the subject of the substantive proceedings. The respondents also sought orders in the nature of mandatory injunctions to take positive steps to remove such statements. This included representations by way of signage, on a website, and via Twitter.

5    On 4 November 2016, Perram J made interim ex parte orders. Nothing turns on those interim orders.

6    On 11 November 2016, upon an undertaking as to damages being given by the present respondents, the primary judge made final orders by consent both restraining the appellant, Adam Kazal, and requiring him to take certain steps, in relation to the dissemination of adverse information about the second respondent, Mr David. Of importance is that there were no proceedings on foot by another person against whom the appellant made similar allegations, Mr David Singh, nor any Court-ordered restraint on making such allegations against Mr Singh. That difference is material in understanding the appellant’s conduct both prior to and after the 11 November 2016 consent orders were made.

7    On 25 November 2016, nine charges of contempt of court were brought by the respondents. The charges were brought by an interlocutory application and accompanying statement of charge. Seven of those charges alleged that the appellant was in contempt of court by reason of breaches of the 11 November 2016 consent orders. Two of those charges alleged contempt of court by reason of the appellant making public statements intended and calculated to influence a party to the substantive proceedings (the applicants, who are the present respondents) in the conduct of those proceedings and which exposed the applicants in the substantive proceedings (the present respondents) to the risk of prejudgment on the issues in, or merits of, those proceedings.

8    On 9 and 21 December 2016, the primary judge conducted a hearing of the charges. His Honour made certain evidentiary rulings on the first of those hearing days, which resulted in the filing of an amended statement of charge immediately prior to the second hearing day to remove references to evidence which had been excluded. At the conclusion of the second hearing day, his Honour delivered an ex tempore judgment. His Honour convicted the appellant on four out of the seven charges arising out of the 11 November 2016 consent orders, acquitted the appellant on the other three of those seven charges, and convicted the appellant on both of the public statement charges. The ex tempore reasons were published in early 2017, in a form revised from the transcript: Thunder Studios Inc (California) v Kazal [2016] FCA 1598 (liability judgment).

9    No issue was taken with the way in which the primary judge summarised the background to the case before his Honour in the liability judgment. It is therefore convenient to reproduce those 10 paragraphs as follows (noting that the references to “Charif” are to the appellant’s brother, Charif Kazal, and that the appellant is referred to as “Adam”; emphasis in original):

Background

2    Relevantly, the [respondents] claimed that Charif owned and operated a website […] and that Adam owned and operated a Twitter account […]. The [respondents] contended that the website published, both in Australia and elsewhere in the world, matter and representations that were defamatory, amounted to injurious falsehoods and also were misleading or deceptive in contravention of s 18 of the Australian Consumer Law in Sch 2 to the Competition and Consumer Act 2010 (Cth). The [respondents] sought a permanent injunction restraining further publication of the allegedly defamatory, or misleading or deceptive, or injuriously false, imputations on the website.

3    Previously, Charif and Mr David had a business relationship that had ended badly, as the brief summary I have given suggests. They had had litigation overseas and been involved in a public inquiry before the New South Wales Independent Commission Against Corruption (ICAC). The material complained of related to Charif’s and Adam’s accounts as to matters going to the merits of their past interactions with Mr [Rodric] David and another man with whom he was associated, David Singh.

4    Over the last year until October 2016, Adam had not appeared to play an active part in the litigation. However, in about October 2016 Adam became interested in agitating publicly his opinions and assertions about Mr David. On 28 October 2016 he wrote an email (the 28 October publication) to Mr David, copied to Charif and another of their brothers, Tony Kazal, and numerous persons at Thunder Studios. The email asserted that Mr David had defrauded companies owned by Charif and Tony. It alleged that Mr David had lied to the ICAC inquiry and that he had been responsible for publication of lies about members of the Kazal family to The Sydney Morning Herald, several journalists of which, including Kate McClymont, have had involvements with the Kazal brothers’ sense of grievance. The email complained that Mr David used articles in The Sydney Morning Herald to:

steal the $180 million company you owned with Charif & Tony … with help on the theft from CEO David Singh.

It continued:

You made it personal and I will show you that I am not going to put up with the crap you tried to dish out to my brothers. My team in LA are going to expose you wherever you go until you are charged with your crimes and my team in Sydney will expose all of the spineless thieves who thought they could help themselves to steal from my family. (emphasis added)

The next paragraph contained a vitriolic attack on Mr David and his racial background. The email proceeded:

I will show the good people of LA what scum they have allowed into their city that Australia is glad to be rid of. Let’s see how you like having the truth of what you get up to reported for the world to see your true colours.

The next paragraph made other acerbic assertions about Mr David and his family, and the email then concluded:

You start a fight with me, I will show you how Adam Kazal is different to the rest of the family. See you around grub.

5    Adam posted his 28 October [2016] email on his Twitter account, above a profile picture of a masked person that is associated with the well-known hacking group “Anonymous”, and the words:

hey @Rodric_David my team in LA are going to expose you wherever you go! – Day 1 ...

6    On 31 October 2016, Adam sent an email (the 31 October publication) to the solicitor for the [respondents], Walter MacCallum. The email was headed “Response to your Letter” and said that Adam had received Mr MacCallum’s letter and that the letter appeared:

to be trying to link me back to a case I was removed from at the outset when I removed the content your Client claimed offence to from my Twitter feed.

7    The email said that Adam did not regard Mr MacCallum’s threat in his letter as being related to the case involving his brother, Charif, being, I infer, these proceedings, which he said was a separate issue and was a case that, for him, had ended a long time before. The email then proceeded to say among other things:

Regarding the van, do you seriously claim to be a lawyer? You are the same person as I recall that orchestrated and fabricated the ICAC case with Rodric David just to create a smokescreen for his highway robbery. That makes you nothing more than a common thug and liar fabricating claims to enable this man to steal from innocent victims. Is that what a lawyer does? I don’t think so.

You want me to cease using the Van? Are you serious? (emphasis added)

8    In the email Adam made a series of allegations accusing Mr David of creating or being involved in the creation of false webpages that purported to be associated with members of the Kazal family, including Adam, but were, in fact, operated and controlled by Mr David and Thunder Studios and which allegedly defamed Adam and his entire family, as well as others. Adam wrote in the email:

So if you think I am going to stop then clearly you also aren’t a very good lawyer!

9    It continued by referring to Mr David allegedly supplying The Sydney Morning Herald with misleading information that was used to defame, allegedly, the Kazal family in more than 30 articles, including some concerning Adam personally. It then said:

Unless your Client removes the offensive website and transfers the domain name […] to me as the lawful owner, pays my costs of $666,666.66 for Legal & Marketing Costs, Pain and Disruption to the Bank Account mentioned below and issues a written public apology by 4pm tomorrow, I reserve the right to not only continue using the Van, but to also increase the size of my fleet.

Bank: …    

Account Name: …

BSB …

Account #: …

If you fail to meet my demands and include a copy of any EFT Confirmation issued by the Bank the I reserve the right to do whatever is necessary to expose the Corporate Fraudsters Rodric David & David Singh who stole $180 million from my family as well as all other persons that have intentionally aided and abetted the Fraudsters in the process. Feel free to warn all involved to ensure they have a good digital image online if they want to look their best on the side of my growing fleet of vans……

For the avoidance of any doubt, that includes you too Sir. (emphasis added)

10    Adam’s reference to the growing fleet of vans related to vehicles that, as will shortly appear, form a basis for the present nine charges of contempt that the [respondents] have brought against him. The circumstances in which the charges arise are that the [respondents] sought and obtained on 4 November 2016 ex parte relief from Perram J that enjoined the further publication of a variety of apparently defamatory matters of and concerning Mr David, including publications displayed on vans that had been seen travelling around Sydney.

11    The application for continuation of the injunctive relief came before me, as the docket judge, and I set that down for an interlocutory hearing on 11 November 2016. On that occasion, Adam was represented by senior and junior counsel and his solicitor, as were the [respondents]. In the event, the parties agreed to consent orders that were taken out and bore endorsements addressed to Adam that if he refused or neglected to do any act within the time specified in the orders for doing the act or disobeyed the orders by doing an act that the order required him not to do, he would be liable to imprisonment and sequestration of property or other punishment. As is by now evident, that is what the [respondents] now seek. I have attached orders 1, 2, 3 and 4 as an annexure to these reasons (the 11 November orders).

10    To the above narrative may be added the fact that the appellant’s same day tweets of the email he sent to Mr David (amongst others) on 28 October 2016 and of the email he sent to Mr MacCallum on 31 October 2016 could both be viewed beyond the date of the making of the consent orders on 11 November 2016.

11    The 11 November 2016 consent orders were as follows (per original but excluding the annexures):

BY CONSENT (OTHER THAN AS TO ORDER 7), THE COURT ORDERS THAT:

Upon the [respondents] providing the usual undertaking as to damages:

1.    Until the final disposition of these proceedings, [Adam Kazal] be restrained from posting, affixing or displaying, or directly or indirectly causing to be posted, affixed or displayed on any structure, building, signpost, pole, wall, mobile or immobile structure, or to any motor vehicle, any kind any sign, placard, poster, banner, pamphlet, flyer or any like item, or otherwise publishing or distributing any such material, whether or not displaying images or likenesses of Rodric David or any members of his family, where such object may be or is in fact visible or distributed to the public or any member of the public and which:

a.    is in the form of or to the same or similar effect as the sign or poster, a copy of which is annexure “A” to this Order 1; or

b.    makes, conveys, or is capable of making or conveying, any imputation that Rodric David:

A.    is a corporate thief;

B.    stole $180 million;

C.    is guilty of fraud;

D.    is a con man;

E.    conspired with David Singh to steal $180 million,

or any imputation to the same or similar effect.

2.    Until the final disposition of these proceedings, [Adam Kazal] be restrained from retaining, hiring, engaging or directing any person to carry out any of the conduct referred to in order 1 above.

3.    Until the final disposition of these proceedings, [Adam Kazal] be restrained from publishing or distributing (otherwise than to his lawyers for the purpose of obtaining legal advice or for use in litigation), in hard copy or electronic form, whether on the internet or any form of social media, including Twitter:

a.    the material contained in the e-mail dated Monday 31 October 2016, a copy of which is annexed and marked “B”;

b.    the material contained on [Adam Kazal’s] Twitter feed entitled “Hey Walter MacCallum You want me to cease using the Van? Are you serious? @aitken_lawyers @australian #kazal @rodric_david @thr @IRStaxpros”, a copy of which is annexed and marked “C”;

c.    the material located on the internet at [universal resource locator (URL), being the website address for a tweet on Adam Kazal’s Twitter feed], a copy of which is annexed and marked “D”;

d.    the video entitled “Street protests and vans exposing corporate thieves Rodric David and David Singh” displayed on YouTube and the website at [URL for the Family Website];

e.    any imputation arising from any material (whether in hard copy or electronic form) published on or after 26 October 2016 that Rodric David, alone or together with his legal representatives:

A.    fabricated a case before the ICAC;

B.    perverted the course of justice;

C.    is guilty of contempt of the ICAC;

E.    lied to the ICAC;

F.    engaged in thuggery, to enable him to steal from innocent people;

G.    lied, to enable him to steal from innocent people;

H.    fabricated claims, to enable him to steal from innocent people;

I.    Is a thief,

or any imputations to the same or similar effect.

4.    [Adam Kazal] remove or cause to be removed by 4 pm Australian Eastern Standard Time on 12 November 2016, the material referred to in order 3 above from the internet, Twitter and any third party website to which it has been distributed.

5.    A copy of these Orders be served on [Adam Kazal] by 4 pm, 11 November 2016 by sending such documents to [Adam Kazal], and his solicitor Mr Kiki Kyriacou at the email addresses: [email address] and [email address].

6.    [Adam Kazal’s] solicitor shall notify [Adam Kazal] of these orders by telephone by no later than 2 pm, 11 November 2016 and confirm that he has done so in writing to the [respondents’] solicitor.

7.    The costs of the interlocutory application dated 4 November 2016 up to and including 10 November 2016 be the [respondents’] costs in the cause and there be no order as to the costs of 11 November 2016.

8.    These orders be entered and taken out forthwith.

12    The nine charges the appellant ultimately faced (including those upon which he was acquitted, being charges 1, 2 and 4) were as follows (per original):

1.    Since 11 November 2016, you have breached Orders 1 and 3 of the Orders made by Rares J on 11 November 2016 (the 11 November Orders), a copy of which is attached hereto marked “11 November Orders”, by:

(a)    displaying; and

(b)    causing to be displayed,

the words and images visible on:

(i)    the vans referred to in paragraphs 16 and 22 of the affidavit of Walter John Mungo MacCallum sworn 25 November 2016 (the MacCallum 25 November affidavit),

at the various times and places identified in those paragraphs of the MacCallum 25 November affidavit.

Particulars

(i)    MacCallum 25 November affidavit, paragraphs 16 and 22 and annexures L and P thereto

2.     Since 11 November 2016, you have breached Order 2 of the 11 November Orders by retaining, hiring, engaging or directing a person or persons to carry out the conduct referred to in paragraph 1 above.

Particulars

(i)    MacCallum 25 November affidavit, paragraphs 16 and 22 and annexures L and P thereto

3.     Since 11 November 2016, you have breached Orders 1 and 3 of the 11 November Orders by including, in the visible words identified in paragraph 1 above, words which direct readers thereof to the website at [URL for the Family Website] (the Website), on which the various posts referred to at paragraph 27 of the MacCallum 25 November affidavit have been published on and from the dates specified in such paragraph 27.

Particulars

(i)    MacCallum 25 November affidavit, paragraph 27 and exhibit WM-2 thereto

4.     Since 11 November 2016, you have breached Orders 1 and 3 of the 11 November Orders by publishing and displaying, on the Twitter account in your name, the various tweets referred to in paragraphs 11 and 12 of the MacCallum 25 November affidavit, on and from the dates of such tweets.

Particulars

(i)    MacCallum 25 November affidavit, paragraphs 11 and 12 and annexure G thereto

5.     Since 11 November 2016, you have breached Orders 1 and 3 of the 11 November Orders by including, in the tweets identified in paragraph 4 above, words which direct readers thereof to the Website, on which the various posts referred to at paragraph 27 of the MacCallum 25 November affidavit have been published on and from the dates specified in such paragraph 27.

Particulars

(i)    MacCallum 25 November affidavit, paragraphs 11, 12 and 27 and annexure G and exhibit WM-2 thereto

6.     Since 11 November 2016, you have breached Order 3(d) of the 11 November Orders by continuing to publish on the internet, on and from that date, the video referred to in paragraphs 13 - 15 of the MacCallum 25 November affidavit,

Particulars

(i)    MacCallum 25 November affidavit, paragraphs 13 - 15 and annexures H - K thereto

(ii)    Affidavit of Katherine Louise Sambrook sworn 8 December 2016, paragraph 15 and annexures J, K and L thereto

7.     Since 11 November 2016, you have breached Order 4 of the 11 November Orders by failing to remove the material referred to in Order 3 of the 11 November Orders from the internet, Twitter and any third party website to which it has been distributed.

Particulars

(i)    MacCallum 25 November affidavit, paragraphs 11 and 12 (Twitter)

(ii)    MacCallum 25 November affidavit, paragraphs 13 - 15 (Video)

(iii)    MacCallum 25 November affidavit, paragraph 27 (Website)

(iv)    Affidavit of Katherine Louise Sambrook sworn 8 December 2016, paragraph 15 and annexures J, K and L thereto

8.     During the period between 31 October and 11 November 2016, you made public statements:

(a)     intended to influence a party in the conduct of pending proceedings;

(b)     calculated to influence a party in the conduct of pending proceedings; and

(c)     which exposed a party to the risk of prejudgement [sic] of the issues or merits of pending proceedings.

Particulars

(i)    The material identified in sub-paragraphs (b), (c) and (d) of Order 3 of the 11 November Orders

9.     Since 11 November 2016, you have continued to make public statements:

(a)     intended to influence a party in the conduct of pending proceedings;

(b)     calculated to influence a party in the conduct of pending proceedings; and

(c)     which exposed a party to the risk of prejudgement [sic] of the issues or merits of pending proceedings.

Particulars

(i)    The material identified in sub-paragraphs (b), (c) and (d) of Order 3 of the 11 November Orders

(ii)    MacCallum 25 November affidavit, paragraphs 11 – 17, 20 – 22, and 27

(iii)    Affidavit of Katherine Louise Sambrook sworn 8 December 2016, paragraph 15 and annexures J, K and L thereto

13    The summary table below assists in understanding the matrix of charges, particulars and proscribed conduct. Charges 1, 2 and 4, upon which the appellant was found not guilty, have been included in italics for reference only. For brevity, the 11 November 2016 consent orders are referred to in the summary table below as the orders.

14    For clarity, the 28 October 2016 tweet and the 31 October 2016 tweet are not included within the other seven tweets.

15    The table below summarises the basis of the charge (and consequent conviction) and the prison sentence imposed for each of charges 3, 5, 6, 7, 8 and 9 (listed from shortest to longest sentence). All charges below were from the period since 11 November 2016 (the date of the consent orders), except for charge 8 as noted below.

The vans

16    The writing on certain of the vans had the following readily observable characteristics identified by the primary judge:

33    I accept beyond reasonable doubt all Mr MacCallum’s evidence (that I admitted). Relevantly, he photographed the vans on 18 and 22 November 2016 when he was present in O’Connell Street, Sydney. On 18 November 2016, he saw two vans there. One of the vans displayed “$180 Million Theft” in large red script on the driver’s and passenger’s doors and underneath in black, smaller script, but still noticeable, “All involved to be exposed”. One photograph that Mr MacCallum took on this occasion is below.

34    On both sides of the van, underneath Mr Singh’s photographs, appeared the statement, “Read how the thief robbed his partners”, and, in much larger print, the website’s address, underneath which appeared “c/- Adam Kazal”. The second van was in much the same get-up except that, under the passenger’s door statement of “$180 Million Theft”, no reference appeared to “All involved to be exposed”.

35    Mr MacCallum again saw four vans in O’Connell Street on 22 November 2016. Two of them appeared to be identical to the ones he had seen earlier on 18 November 2016. He took the photographs below of another one.

36    This photograph appears to have obscured the large print in which the website’s address appeared along the bottom, between the front and rear mudguards of the two sets of tyres, under the heading “read the full story”.

37    One of the vans also had a back section that appeared in another photograph taken by Mr MacCallum as follows.

38    This photograph, again, showed the van displaying the website’s address under the statement “read the full story”. Mr MacCallum also photographed Adam walking around in the vicinity and in front of the vans on 22 November 2016.

The website posts

17    The website posts made between 11 and 21 November 2016 were referred to in some detail by the primary judge in the liability judgment at [39] to [50]. The Court was also taken to printouts of many of those posts during the course of the appeal hearing. The detail does not need to be reproduced. What matters is that the posts included a significant number of direct attacks on Mr David of the kind expressly forbidden to be published by the appellant by the 11 November 2016 consent orders. The finding by the primary judge that this conduct was in breach of the 11 November 2016 consent orders constituted, on any view, extremely serious instances of contempt of court if the convictions based upon them are upheld.

The seven tweets

18    The primary judge made the following observations about the seven tweets attaching the appellant’s seven emails to the SMH journalist (per original):

28    I am satisfied beyond reasonable doubt by Mr MacCallum’s affidavit that Adam published the seven tweets between 15 and 21 November 2016. These consisted of reproductions of emails that Adam had sent to Ms McClymont at The Sydney Morning Herald.

29    None of the seven tweets, 22 posts or other publications complained of made after 11 November 2016, that Adam authored, as will appear, referred directly to Mr David by name. They concentrated on making allegations, first, against Mr Singh and, secondly, directing readers to the website where, in substance, as will appear, they were invited to read all about how Mr Singh engaged in the allegedly heinous conduct that Adam asserted had occurred. In his email of 15 November 2016 that is reproduced on Twitter, Adam told Ms McClymont that he had been breaking news for her upcoming article on:

the Corporate Thief David Singh who stole $180 million from my brothers Charif & Tony …

He wrote that he had been exercising his legal right to free speech:

… by having a van promoting his theft of $180 million drive around the Eastern Suburbs.

30    The email also stated that Ms McClymont might:

have heard about [this] as many people have contacted me to voice their support so I expect a good many have contacted the media.

31    The email then referred to a number of matters to do with Mr Singh and allegations relating to him, his wife and Adam’s brothers. Towards its conclusion, the email said:

My brother Charif’s website, [URL for the Family Website] [which was hyperlinked in the email and was displayed as a hyperlink in the tweet] has all the facts on how Singh defrauded him and participated in a Court case as a witness where he acted as part of a conspiracy to defraud Charif & Tony and lied under Oath about the company and what had occurred prior to the Court action beginning. Charif’s website outlines the history of lies you, Linton Besser and Richard Baker have all written about me and my family in more than 30 malicious articles.

32    The next day, Adam emailed Ms McClymont and posted a tweet that stated that his vans would continue “to expose” Mr Singh and again included a link to his brother Charif’s website that appeared as a hyperlink in the tweet for the ease of a reader to access it. The subsequent five tweets rehearsed the same themes, each of them having a paragraph that specifically stated that Charif’s website, which was always displayed as if it were hyperlinked, “explains all of the detail” or “goes into greater detail” about how Mr Singh was part of a conspiracy to defraud Tony and Charif out of $180 million “as outlined on my vans”, as, for example, he wrote on 19 November 2016.

The video

19    The video is relevant to charges 6, 7, 8 and 9, but consideration of its contents is not required in light of the conclusions reached below, which turn on questions of control and therefore capacity to continue the publication of the video and to remove it from the internet.

PRINCIPLES RELATING TO CIVIL AND CRIMINAL CONTEMPTS

20    Before turning to consider the grounds of appeal, it is important to set out some key principles in relation to what is often referred to as ‘civil’ and ‘criminal’ contempts which should be borne in mind when considering the appellant’s conduct as charged.

21    The distinction still maintained between civil and criminal contempt is “in significant respects illusory”: Witham v Holloway (1995) 183 CLR 525 at 534.3. The criminal standard of proof applies to both following Witham. However the technical distinction remains and applies to these proceedings because charges 3 and 5 (and charges 6 and 7) may be seen to allege civil contempt while charges 8 and 9 may be seen to allege criminal contempt. Nothing turns on the distinction save as to the issue taken on appeal as to the finding that the appellant’s breaches were contumacious. The distinction was summarised by Brennan, Deane, Toohey and Gaudron JJ in Witham at 530.4 (footnotes omitted):

In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious. As well, in the case of some orders, described in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd as involving “arbitrary classification”, disobedience constitutes criminal contempt. They are orders forbidding interference with a ward of court, orders for the delivery up of a child and non-molestation orders. And it has been held that breach of a court order by a solicitor or by a liquidator is also a criminal contempt.

22    It was further observed in Witham at 531-2 (quoting Windeyer J in Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 498) as to the historic basis for the distinction:

(1)    Civil contempt was remedial or coercive, used primarily to compel obedience in support of a private interest of the party in whose favour the order was made, rather than punish for disobedience, in which case the contempt could be purged by apology and reparation. As was pointed out at 532.3, quoting longstanding United States authority, the remedial or coercive approach can be explained by the notion that those in “breach of an order or undertaking ‘carry the keys of their prison in their own pockets’.”

(2)    Criminal contempt was in the public interest to vindicate judicial authority or maintain the integrity of the judicial process.

23    This distinction between civil and criminal contempt was not regarded as being satisfactory in Witham, having regard to such considerations as disobedience not being able to be remedied in all cases, and there being in any event a public interest in court orders being obeyed. There was no easy or bright line between remedial or coercive objectives and punitive objectives. It may be in the public interest for contempt proceedings to continue, even if the opposing parties do not seek it. Nothing was achieved by describing some proceedings as punitive and others remedial or coercive, given that punishment is still punishment whatever the motive for imposing it: see Witham at 533-534. Although not forming part of the reasoning in Witham, it may be seen that for both kinds of contempt, deterrence, both specific and general, is a unifying principle informing the appropriate sanction to be imposed.

24    A real distinction remains between contempt proceedings being “essentially criminal in nature”, and ordinary criminal proceedings. That is so in many practical respects, especially as to procedure: Witham at 534, quoted with approval by the plurality in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; 256 CLR 375 at 389 [43]; see also the discussion in Boral at 389-390 [44]-[47] as to certain of those enduring important distinctions. That distinction led to the CFMEU as the defendant in Boral being compelled to participate in discovery processes of the Supreme Court of Victoria.

25    The distinction between civil contempt proceedings, criminal contempt proceedings and criminal proceedings was further explained by Nettle J in Boral at 395 [65] (citations omitted):

A proceeding for punishment for contempt constituted by disobedience of an injunction granted in a civil proceeding is not part of the criminal justice system in the sense essayed in Caltex, X7 or Do Young Lee v The Queen. Although “all proceedings for contempt ‘must [now] realistically be seen as criminal in nature’”, not all contempts are criminal. Failure to obey an injunction is not a criminal offence unless the failure to comply is defiant or contumacious. A proceeding for contempt is not a proceeding for criminal contempt if the proceeding appears clearly to be remedial or coercive in nature as opposed to punitive. A criminal contempt is a common law offence, albeit not part of the ordinary common law. But even a proceeding for criminal contempt is not a criminal proceeding.

26    In Matthews v ASIC [2009] NSWCA 155 at [16], Tobias JA (and previously the trial judge in that case) reproduced with approval the following passage from Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16 at [9], in which Finn J summarised the applicable principles as follows:

… First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 515–516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40]. Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 at [19]. Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 at [6]. Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534.

27    A charge of contempt, when it refers to defiance of an order of a court, is required at least to allege a particular order was breached, and what was allegedly done to constitute that breach, in the manner of, but not the same as, a criminal charge or indictment. It does not require particular terms of art.

CONVICTION APPEAL

APPEAL GROUNDS PERTAINING TO CHARGES 3 AND 5

Grounds of appeal 1A and 1B

28    Grounds 1A and 1B in the amended notice of appeal dated and filed 22 March 2017 were as follows (per original):

1A.    His Honour erred in law in finding that the allegations made against the Appellant in charges 3 and 5 in the amended statement of charge asserted that by including in the visible words identified in Charge 1 on the vans (Vans) referred to at paragraphs 33 to 38 of the liability reasons, Thunder Studios Inc (California) v Kazal [2016] FCA 1598 (Liability Reasons) and the tweets identified in charge 4 words directing readers to the website [URL for the Family Website] (Website) the Appellant re-published certain contents of the Website vis-à-vis the Second Respondent (Mr David), namely the 22 posts referred to in paragraphs 39 to 50 of the Liability Reasons, in breach of orders 1 and 3 of the orders made on 11 November 2016 (Orders) when in fact they did not.

1B.    His Honour erred in failing to find that charges 3 and 5 did not include any allegation that the contents of the [Family Website] were republished by reasons [sic] of the visible words and tweets referred to in Ground 1A and in substance were nothing more than a repetition of charges 1 and 4 and should have resulted in an acquittal.

29    It may be observed that these are not the most accessible grounds of appeal. Using the summary of particulars and charges at paragraph [13] above, grounds 1A and 1B may be more clearly summarised as follows:

(1)    Ground 1A alleges that the primary judge erred in finding that charges 3 and 5 asserted that the appellant republished the website posts (which are located on the Family Website) in breach of orders 1 and 3 by including the words on the vans and in the seven tweets which directed readers to the Family Website.

(2)    Ground 1B alleges that the primary judge erred in failing to find that:

(a)    charges 3 and 5 did not include any allegation that the contents of the Family Website (and therefore implicitly, the 23 website posts) were republished by the words on the vans and in the seven tweets;

(b)    charges 3 and 5 were therefore nothing more than a repetition of charges 1 and 4; and

(c)    as a result of (a) and (b) above, charges 3 and 5 should have resulted in an acquittal.

30    Charges 3 and 5 involved the vans and seven tweets respectively, and alleged the inclusion of visible words which directed readers to the Family Website, on which the website posts were published. Charges 3 and 5 each alleged a breach of orders 1 and 3 of the 11 November 2016 consent orders. Understanding and addressing grounds of appeal 1A and 1B therefore requires understanding orders 1 and 3, and charges 1, 2 and 4 (on which the appellant was found not guilty) as well as charges 3 and 5.

31    Order 1 was directed to forbidding until the final disposition of the proceedings “posting, affixing or displaying” (or directly or indirectly causing same) on a physical structure or thing of some kind a “sign, placard, poster, banner, pamphlet, flyer or any like item or otherwise publishing or distributing any such material whether or not displaying images or likenesses of Rodric David or any members of his family, where such object may be or is in fact visible or distributed to the public or any member of the public” and which either was in the form of a poster annexed to the orders, or made, conveyed or is capable of making or conveying particular listed imputations. The primary judge found that neither the vans, nor the seven tweets, on their face made any reference to Mr David. Accordingly no breach of orders 1 or 3 (as alleged by charges 1 and 4) was made out by the writing on the vans or the text of the tweets respectively. The collateral allegation in charge 2 of “retaining, hiring, engaging or directing a person or persons” to carry out conduct forbidden by order 1, contrary to order 2, in substance employing or organising others to drive the vans, necessarily also failed.

Whether charges 3 and 5 required a breach of both order 1 and order 3

32    As discussed above, charges 3 and 5 alleged that the appellant breached both order 1 and order 3. The primary judge was satisfied beyond reasonable doubt that the appellant breached both orders: liability judgment at [72]. His Honour found the appellant guilty of charges 3 and 5 by breaching both orders 1 and 3: see orders 1(b) and (c) of the orders made on 27 February 2017. At the hearing of the appeal, however, the respondents conceded that the primary judge was in error in finding that the conduct alleged in charges 3 and 5 breached order 1. The respondents did not seek to support the appellant’s conviction on charges 3 and 5 by reference to a breach of order 1.

33    That concession was properly made. In finding that the conduct alleged in charges 3 and 5 breached order 1, the primary judge construed order 1 as if it simply prohibited publication of the proscribed information or imputations: liability judgment at [71] and [80]. That construction of order 1 was erroneous. While order 1 does include the words “otherwise publishing”, those words are directed to publishing “such material”. The words “such material” in turn refer back to the words “any sign, placard, poster, banner, pamphlet, flyer or any like item” and to the words “such object”. The “material” or “object” in charge 3 was the words on the vans and in charge 5 was the tweets. Even accepting that the appellant “otherwise published” the words on the vans and the tweets, the words on the vans and the tweets did not themselves convey the imputations proscribed by order 1. The conduct the subject of charges 3 and 5 did not breach order 1 for essentially the same reasons given by the primary judge for why the conduct in charge 1 did not breach order 1.

34    The concession by the respondents addressed the substance of the appellant’s argument in support of appeal grounds 1A and 1B, at least as far as a breach of order 1 is concerned. Before addressing the arguments as they applied to order 3, which directly prohibits publication of the proscribed imputations, it is necessary to consider the implications for charges 3 and 5 of the finding that there was no breach of order 1 in circumstances where both of those charges refer to a breach of orders 1 and 3. The appellant contended that charges 3 and 5 should be read as requiring proof of a breach of both orders 1 and 3, the former being impossible to make out on the facts as found by the primary judge and not disputed on appeal. On that argument, it followed that the respondents’ concession of there being no breach of order 1 for the purposes of charges 3 and 5 meant that the convictions could not stand because proof of breaches of both was indispensable. The respondents contended that the reference to both orders 1 and 3 in each of charges 3 and 5 should be read disjunctively. On that argument, proof beyond reasonable doubt that order 3 had been breached in the manner charged (a separate issue considered below), even in the absence of proof of a breach of order 1, would be sufficient to sustain the conviction. It should be noted that there was no significant argument in relation to this issue in the parties’ oral or written submissions.

35    The central question arising from grounds 1A and 1B is therefore whether “and” in the phrase “orders 1 and 3” in each of charges 3 and 5 can be read as having a disjunctive or dispersive effect rather than a conjunctive effect, and therefore having the meaning of, in context, a breach of either or both of orders 1 and 3. That is, whether guilt on those charges could be established by proving a breach of order 1, or a breach of order 3, or a breach of both order 1 and order 3.

36    The question of whether the word “and” is to have its more common conjunctive meaning (akin to whether the word “or” is to have its more common disjunctive meaning) largely arises in the context of statutory interpretation. Despite that somewhat different context, the reasoning is apposite to the present situation, calling as it does for the analysis and meaning of language. Moreover, if the word “and” is capable of having a disjunctive or dispersive effect rather than a conjunctive effect in the context of a statute, especially for a criminal offence, such an interpretation is more comfortably able to be arrived at in the present context.

37    In Associated Newspapers Limited v Wavish (1956) 96 CLR 526, the High Court refused special leave to appeal from a decision of the Supreme Court of Victoria in which a magistrate’s decision to dismiss a charge of distributing obscene articles by way of a magazine was overturned. The relevant definition of “obscene” in s 169(1) of the Police Offences Act 1928-1954 (Vic) was (emphasis added):

In this Part – ‘obscene’ (without limiting the generality of the meaning thereof) includes – (a) tending to deprave and corrupt persons whose minds are open to immoral influences; and (b) unduly emphasizing matters of sex, crimes of violence, gross cruelty or horror.

38    The magistrate treated a failure to establish paragraph (a) of the definition of “obscene” as leading to the failure of the charge. Paragraph (b) of the definition was therefore not addressed. Justice Martin disagreed, quashing the summary dismissal of the charge by making absolute an order nisi and remitting the charge for further consideration of paragraph (b) of the definition. The High Court upheld the Supreme Court’s interpretation. In an oral judgment on behalf of five members of the High Court, refusing the defendant’s application for special leave to appeal, Dixon CJ held at 528:

In relation to the definition of the word “obscene” in s. 169 (1), we are of the opinion that the word “and” does not mean that what is stated in pars. (a) and (b) provides cumulative conditions which must be both fulfilled before an “article” can fall within that definition. It is enough if the article has the tendency described in (a) or has the undue emphasis described in (b).

Although not stated, it seems likely that the presence of the non-exhaustive term “includes” in the definition, as well as the condition “without limiting the generality of the meaning thereof” was sufficient to find that the word “and” should have a dispersive effect. This highlights the importance of context.

39    In Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122; 181 FLR 454, the issue before the Full Court of the Western Australian Supreme Court involved the construction of an instrument that authorised a particular bank “and” the receivers to make an application for an examination summons. The question was whether the word “and” should be read conjunctively, meaning that an application had to be made by both the bank and the receivers; or disjunctively or dispersively, meaning that both the bank and the receivers could make an application, either together or separately. The Full Court upheld the latter construction by a Master. Malcolm CJ at 460-7 [23]-[54] considered a number of cases, including Wavish, in which “and” was found not to have a conjunctive or cumulative effect, including in cases decided before the advent of modern Acts interpretation provisions, relying on context to ascertain the meaning to be given to that word. The common thread running through the authorities was that when determining whether the word “and” is to be read conjunctively or disjunctively, regard must be had to the apparent context and evident purpose of the relevant provision or instrument. Steytler J came to the same conclusion by separate reasoning. McKechnie J agreed with the reasons given by Malcolm CJ and Steytler J for upholding the Master’s decision.

40    The use of the word “and” in each of charges 3 and 5 has to be interpreted by its context. By parity of reasoning to that deployed in Wavish, and applied in Re Peat Resources, the use of the word “and” in each of charges 3 and 5, read in context, does not mean that the reference to order 1 and order 3 are cumulative conditions, both of which must be proven to have been breached before either charge can be proven. There is no apparent reason for limiting the scope of the charge in that way. Whilst not well drafted, it was clearly enough intended to allege that the appellant had breached order 1, or order 3, or both orders 1 and 3, in the manner particularised. As has been correctly conceded by the respondents, the conduct relied upon was not apt to constitute a breach of order 1. However, it was enough if only order 3 had been breached.

41    The alternative interpretation relied upon by the appellant runs contrary to the overall language deployed and the sense in which the word “and” has been used in both charges 3 and 5. It makes no sense for the enforcement of either order that a breach of both must be established, as opposed to proof of a breach of either being enough for the charge to be made out.

42    The remaining issues arising from the meaning of the word “publishing” as it appears in order 3 are addressed below. Grounds 1A and 1B otherwise must fail.

Grounds of appeal 1, 2, 3, 4 and 4A

43    The remaining grounds concerning charges 3 and 5 may be summarised as follows (confined to the alleged breach of order 3 in light of the reasoning above):

(1)    Ground 1, being in the alternative to grounds 1A and 1B, asserts that the primary judge erred in finding that placement of the URL, being the website address of the Family Website, on the vans constituted publication of the website posts in breach of order 3.

(2)    Ground 2, being in the alternative to ground 1, asserts that the primary judge erred in finding that the placement of the URL for the Family Website on the vans constituted a publication of the website posts about Mr David when regard is had to the context in which that URL appeared.

(3)    Ground 3, being in the alternative to grounds 1 and 2, asserts that the primary judge erred in finding that the appellant was guilty of breaching order 3 by knowingly publishing the contents of the Family Website, because the appellant had removed references to Mr David from the vans.

(4)    Ground 4 asserts that the primary judge erred in finding that the placement of the URL for the Family Website in the seven tweets constituted a publication of the website posts about Mr David when regard is had to the context in which that URL appeared in those seven tweets.

(5)    Ground 4A, being in the alternative to grounds 1 to 4, asserts that the primary judge erred in failing to find that the wording of order 3 was not sufficiently clear or unambiguous to support charges 3, 5, 6 and 7, being based upon a “republication” by the appellant of adverse information about Mr David published by others.

44    In different ways, grounds 1, 2, 3, 4 and 4A, and anything remaining in grounds 1A and 1B, may all be seen to turn on the meaning to be given to “publishing” as it appears in order 3. That meaning will determine whether those grounds can be made out. It is therefore convenient to turn to that topic now.

The meaning of “publishing” in order 3

45    In Australia, since at least Webb v Bloch (1928) 41 CLR 331, the term “publish”, in relation to the historic act of communicating adverse information about a person to other persons, has encompassed a range of activities leading to that outcome. That understanding of “publish” has commonly arisen in the context of determining liability for defamation or libel. Grounds of appeal 1, 1A, 1B, 2, 3, 4 and 4A concern orders of a court prohibiting a future act of communicating adverse information about a person, using, inter alia, the word “publishing” as the proscribed act. The question to be determined in resolving those grounds of appeal is what meaning should be given to the word “publishing” in the context in which it was used in the 11 November 2016 consent orders made by the primary judge. It may be seen that framing the issue in this way indicates that case law concerning the meaning of “publish” in the context of defamation or libel is going to be influential, but not of itself determinative, in construing the meaning of “publishing” as it has been used in order 3. Consideration cannot be confined to the law of defamation or libel merely because of the subject matter of the substantive proceedings and of the 11 November 2016 consent orders. Some regard can also be had to the ordinary dictionary meaning of the word “publish” in aid of the meaning of the word “publishing” as it has been used in order 3.

46    The meaning thereby arrived at for the word “publishing” as it has been used in order 3 will in turn be of critical importance in determining whether the appellant disobeyed those orders and, if so, whether that conduct was captured by the relevant charges of contempt. Perhaps more precisely, that is a necessary step in determining whether the primary judge erred.

47    In Tom & Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013; 72 NSWLR 577, Palmer J was dealing with a question of whether a statutory prohibition on an unauthorised person “publishing” a New South Wales race field (the field itself being defined as information that identified the names or numbers of animals to take part in a race) had been breached. While the word “publish” was defined in the statute, the case still called for its meaning beyond that definition to be ascertained. His Honour made the following pertinent observations indicating that usage of the word “publish” in a defamation context warrants caution (at 585, 587 and 591, emphasis added):

22    The word “publish” has two meanings: the ordinary or common meaning which the layman would use, and the technical meaning which a defamation lawyer would use. To a layman, “to publish” ordinarily means to make generally known, declare or report openly, proclaim, bring something to public notice, or make information generally accessible or available: see, for example, New Shorter Oxford English Dictionary. The word derives from publicus and connotes making something known or available to the world at large.

23    To a defamation lawyer, however, “to publish” has a highly specialised meaning — some would say, indeed, a meaning which includes the very opposite of its meaning outside defamation law. In defamation law “to publish” is to communicate defamatory material to a person other than the person defamed. One person will suffice. For example, if a husband opens a letter addressed to his wife and finds in it matter defaming his wife, the writer of the letter has “published” the letter to the husband for purpose of the law of defamation: Theaker v Richardson [1962] 1 WLR 151; [1962] 1 All ER 229.

…

33    In construing a statute, the Court does not isolate a word such as “publish” and afford it a meaning “torn from its context”: Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at 264 [37], per Kirby J; R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at 548 [28], per Lord Steyn. The context of legislation is especially important, according to Kirby J in Palgo Holdings (at 266 [41]):

“[41] … where a term used in a statute has both a technical legal meaning and an ordinary meaning of everyday speech. The search is always for the legislative purpose, and unthinking importation of technical legal meanings into statutory interpretation cannot be permitted if they would frustrate the intention of the legislature. Indeed, the correct question is not whether a legal or an ordinary meaning should be given to a particular statutory term. Rather, it is what is the natural and ordinary meaning of the language as read in its context and with attention to the legislative purpose and available materials that disclose that purpose.” (Citation omitted)

…

46    There is no justification for reading the word “publish” in the Racing Administration Act as having any meaning other than its ordinary meaning. It means “communicate to the world at large”; it does not include the meaning which the word has as a term of art in defamation law. I conclude that communication of a race field by one officer or employee of a corporation to another officer or employee of that corporation for the purposes of the corporation is not, in itself and without more, a publication of that information within the meaning and operation of s 33 of the Racing Administration Act.

48    That approach and the interpretation given to “publish”, although in a different and statutory context, accords with the sense in which “publishing” was used in order 3 and thus the conduct to which charges 3 and 5 were directed, especially as it was used in the context of the phrase “publishing or distributing”. The word cannot be “torn” from its context, being principally the substantive proceedings and the consent orders made in support of those proceedings. The orders were plainly directed to stopping the conduct complained of in those proceedings from continuing for so long as they were pending. What was sought to be, and was, proscribed, were acts which would, in ordinary parlance, “make generally known, declare or report openly, proclaim, bring … to public notice, or make … generally accessible or available” the five categories of things that had been previously communicated, or information to like effect derived from those prior communications, until the final disposition of the substantive proceedings.

49    The proscription in order 3 was not confined in terms to direct or immediate communication of a physical nature of the kind proscribed by order 1, but rather by what constitutes “publishing or distributing”. It necessarily extended to acts that would naturally or probably result in such a communication so as to amount in fact and in law to “publishing”. It is therefore appropriate to have regard to the modes of “publish”, “publishing” or “publication” which have been recognised in defamation law discussed below, which can safely be applied by analogy in this context and in this limited way.

50    While the law of defamation must be applied cautiously, the reasoning in a number of the cases as to the means by which the acts of a person will constitute a proscribed “publishing” can be adapted to the present circumstances. They meet the description from the passages in Tom & Bill Waterhouse reproduced above of making information generally known, bringing such information to public notice, and making such information generally accessible or available, when that is clearly the very conduct that the orders were intended to prohibit. This approach does not detract from the ordinary meaning of “publishing” as used in order 3, and made the subject of charges 3 and 5, but rather focuses on authoritative reasoning as to how such a proscribed act may be carried out.

51    In Buchanan v Jennings [2004] UK PC 36; [2005] 1 AC 115, Mr Jennings, a Member of the Parliament of New Zealand, made comments under the shelter of parliamentary privilege about an unnamed official able to be identified as Mr Buchanan, a senior official at a government board. Mr Jennings later adopted those comments in an interview with a journalist by nothing more than stating that he “did not resile” from his claims about the unnamed official. This was found by the Privy Council to constitute publishing those otherwise privileged comments by adoption. It was observed at 132 [18] that the defamation claim would be “directed solely to the extra-parliamentary republication, for which the parliamentary record will supply only the text”. In context, the word “republication” in that quote adds nothing beyond defamation law to the ordinary meaning of the words “publication”, “publish” or “publishing”. Mr Jennings’ comment to a journalist, in turn published by the newspaper, that he did not resile from his prior, and privileged, comments, made that prior information generally known, brought such information to public notice, and made such information generally accessible or available, even if it was not as direct or immediate as repeating the words previously uttered. There was no protection to be had by the evident erroneous assumption that this was a safe way to defame Mr Buchanan.

52    In written submissions for the respondents it was submitted at [5] that:

Anyone who in any way conduces to or participates in publication of matter is a publisher. Moreover, publication by one person, A, can be effected by republishing matter previously published either by A or by someone else. Such a republication is simply one means of publishing that matter. These propositions have been settled law for centuries …

53    Support for those propositions was asserted to come from a series of cases as follows:

(1)    In Webb v Bloch, Isaacs J at 363-365 discussed and approved of a long line of libel authority making it clear that publishing can be by way of active participation which contributes to the actionable representations becoming conveyed or otherwise known, including involving the use of others antecedent to the final step by which the communication is complete.

(2)    In Lee v Wilson and Mackinnon (1934) 51 CLR 276, Dixon J at 287 observed that publication was the actionable wrong in libel, rather than its composition, with the injury arising from the effect produced on its readers, so that the person held responsible did not have to be the author if they had contributed in a material way to such a communication and had thereby published it.

(3)    In John Fairfax & Sons Limited v Cojuangco (1988) 165 CLR 346 at 350, five justices of the High Court accepted that re-publication [and thus publication] could be established by giving information to a person if, inter alia, such publication was intended by them or was a natural or probable consequence of providing the information (citing Webb v Bloch).

(4)    In Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 at 69,192-3, Webb v Bloch was considered by Hunt J and held to support the broader proposition that, where different people are instrumental in differing degrees in the publication, each is equally responsible. His Honour reached that conclusion also by citing the English case of Hird v Wood (1894) 38 Sol J 234, which his Honour conveniently summarised as follows:

… a placard containing material defamatory of the plaintiff had been suspended between two poles on the side of the road by some unknown person. The defendant sat for a long time on a stool near to the placard smoking his pipe, continually pointing at the placard with his finger – thereby attracting the attention of all who passed by to its contents. The English Court of Appeal held that there was evidence to go to the jury of the publication of the placard by the defendant.

54    The meaning of “publishing” as used in order 3 and thereby for the purposes of charges 3 and 5, should accord with the ordinary understanding of that word, so as to assist in determining whether the prohibition has been breached as alleged and as found by the primary judge. Applying the reasoning in the above cases, the prohibition on “publishing” can and did extend to the acts of direction on the vans and in the tweets, which would take the person who followed the direction to the very material the appellant was forbidden to communicate. The use of the term “republish” by the primary judge should be understood in that practical way, rather than confined in a technical way associated with defamation law.

55    It is not to the point that some linguistic or other device, such as sleight of hand conduct, was sought to be deployed by the appellant to get around the ordinary meaning of the prohibition. When a Court order is made, and is capable of having an ordinary and common sense meaning as to what the person to whom it is directed is required to do, or refrain from doing, this Court should be slow to accede to arcane legal constructs to create departures from such a meaning to absolve the person from the consequences of their actions (or inaction).

56    By analogy with Buchanan v Jennings, it may be seen that in displaying the URL of the Family Website on the vans, along with information plainly and obviously designed to encourage a reader to go to that website, and in like fashion displaying the URL via Twitter, the appellant published that website address, with the website itself supplying the contents, including information of the kind prohibited by order 3. By analogy with Hird v Wood, it may be seen that the vans and seven tweets directing a reader to the Family Website were the modern-day equivalent of pointing to a placard, but with considerably greater responsibility in the case of the appellant because he consented to orders forbidding the further publication of adverse information about Mr David.

57    By the vans and by the tweets, the appellant engaged in “publishing” the Family Website, on which the website posts were published, in that his conduct made that information generally known, brought it to public notice, and made it generally accessible or available, contrary to order 3 of the 11 November 2016 consent orders. The respondents’ submission that in the circumstances of this case, the appellant adopted and endorsed the content of the Family Website by the words on the vans and the tweets should be accepted. At least one of the vans included “C/- ADAM KAZAL” immediately above the URL for the Family Website. It needs to be remembered in that regard that the clear prohibition in order 3 was publishing (or distributing) material already communicated, including in part by him, such as by his emails and tweets. In this way, legal principle aligns with the ordinary meaning to be given to order 3 to produce the same result. The appellant was not to take any steps to make those prior publications generally known. He was not to bring them to public notice. He was not to make them generally accessible or available. It is obvious that the appellant was trying to circumvent that prohibition in relation to Mr David by referring overtly only to Mr Singh with encouragement to go to the Family Website where, in effect, all would be revealed. As is noted below, that was a very high risk strategy. It was a strategy that failed.

Conclusion on the appeal grounds pertaining to charges 3 and 5

58    In all the circumstances, there was no error on the part of the primary judge in convicting the appellant on charges 3 and 5, apart from reliance on the aspect pertaining to order 1. It follows that each of grounds 1A, 1B, 1, 2, 3, 4 and 4A as to conviction on charges 3 and 5 must fail.

APPEAL GROUNDS PERTAINING TO CHARGES 6 AND 7

59    The appeal points raised in respect of both of these charges do not require detailed consideration of either the subject matter or the appellant’s conduct because of the reasoning that follows. Nor are the precise terms of grounds of appeal 5 to 8 especially helpful. The central issue raised in those grounds and its resolution is a relatively simple exercise, able to be teased out of appeal ground 7, which was as follows:

His Honour should have found that there was no evidence, or alternatively no evidence that could satisfy the Court beyond a reasonable doubt, that the Appellant was the publisher of the video or had control of the publication of the video or that the necessary acts could and would be brought about by the Appellant or that the Appellant had the capacity to cause that to happen.

60    Charges 6 and 7 alleged a breach of orders 3(d) and 4 respectively.

61    A reading of order 3(d), and order 4 insofar as it pertained to order 3(d), reveals that the appellant was required to desist from publishing or distributing the video in hard copy or electronic form, and to remove, or cause to be removed, that video from the internet, Twitter and any third party website to which it had been distributed. Charge 6 alleged continued publication, while charge 7 alleged failure to remove.

62    It was not in doubt that, following the 11 November 2016 consent orders, the video continued to be on the Family Website and on YouTube and that the appellant did not remove it or cause it to be removed (save for one email sent on 11 November 2016 from the appellant’s solicitor to Charif’s solicitor). The live issue was whether or not he had the capacity to do either. The respondents relied upon the terms of the 11 November 2016 consent orders to find that capacity. As noted below, charge 7 did not make any allegation based upon the “cause to be removed” part of order 4 – it was explicitly limited to “failing to remove”.

63    The primary judge considered at [84] of the liability judgment that the appellant “admitted that he was the publisher of the video when he consented to order 3(d)” and that his consent and the order “acknowledged, in terms” that the appellant “had control of publication of the video on the two sites, YouTube and the website”. His Honour found at [86] of the liability judgment that he was satisfied beyond reasonable doubt that the appellant, being legally represented by senior counsel, junior counsel and solicitors, agreed to orders 3(d) and 4 “because the acts that they required him to perform, namely, to bring about the result that the video would cease to be published on the website and would be removed from it, could and would be brought about by his own acts or his causing others to act to do so”. His Honour was therefore satisfied beyond reasonable doubt that the appellant had the capacity to cause that to happen. No evidence beyond the consent orders was relied upon by his Honour to reach that conclusion. It was noted by his Honour that the only evidence of the appellant’s attempt to comply with orders 3(d) and 4 was an email sent on 11 November 2016 from the appellant’s solicitor to Charif’s solicitor which requested that the video be removed from the Family Website.

64    The question is whether the appellant consenting to the making of the orders on 11 November 2016 was, in all the circumstances, capable of supporting an inference of him having the necessary control and therefore capacity to comply. The primary judge’s finding that he was a publisher in the past (not extending to third-party websites) cannot be determinative of whether he had the necessary control and therefore capacity to prevent the continuing publication of the video. The point is not that such an inference may not, in certain circumstances, properly be drawn from such an order, and more safely drawn in the absence of rebutting evidence: see Weissensteiner v The Queen (1993) 178 CLR 217 at 227.7; R v Baden-Clay [2016] HCA 35; 334 ALR 234 at 242-3 [50]. That is so even without any express acknowledgement of capacity to comply with the orders, which would have put the issue beyond doubt in the absence of compelling evidence to the contrary.

65    In the absence of an express admission or express acknowledgment of capacity, the conclusions reached by the primary judge as to control and thus capacity had to be arrived at by a process of inference drawn from the content of the consent orders and circumstances in which they came to be made. A feature of drawing inferences as a basis for ultimate fact-finding is that they may be rebutted, or there may be other evidence which qualifies or inhibits the inference-drawing process. That is especially so when conclusions indispensable to guilt are required to be reached in proceedings of a criminal nature with penal consequences, such as in this case.

66    In this case, aspects of the available evidence positively suggested that the appellant did not in fact have control of the Family Website, in particular because it was operated by his brother, Charif. It was a reasonable possibility therefore that the appellant may not have had the control and thus capacity to determine whether or not the video continued to be on the Family Website. The suggestion at least followed that, rather than him, his brother or perhaps somebody else also had control of the means by which the video was on YouTube, although that is less clear.

67    An inference on a fact indispensable to a finding of guilt can only be drawn if there is no reasonable explanation consistent with innocence: Shepherd v The Queen (1990) 170 CLR 573 at 580-1. In those circumstances, once raised on the material, the reasonable possibility of capacity and thus control being vested in the appellant’s brother rather than the appellant, had to be excluded beyond reasonable doubt. There was no such evidence. It follows that there is a reasonable, if morally discreditable, explanation available consistent with innocence, namely that the appellant was willing to consent to an order on what may objectively be seen to have been an effectively incorrect basis, if not intentionally false or misleading. That is, it is an available inference consistent with innocence that the appellant was prepared to represent, or allow to be represented on his behalf, that he had control and was in a position to give effect to the order that he had consented to, when that was not so. Accordingly, the inference cannot safely be drawn that he did in fact have such capacity and control. There was an insufficient basis to draw an inference which may result in a factual finding that is at least in danger of being at odds with the true position.

68    A further aspect of order 4 and charge 7 warrants consideration. The appellant consented to order 4 requiring him to “remove or cause to be removed” the material referred to in order 3, including, relevantly, the video referred to at order 3(d). The words “cause to be removed” might be seen as merely an adjunct to being ordered to “remove”, in the sense that the mechanical or physical acts might be carried out by someone else; for example, someone with technical expertise dealing with a website. However it also had an independent operation in the sense of requiring the appellant to take steps to cause somebody who in fact had control of the website to take down the video. Viewed in that way, a charge could have been brought against the appellant for failing to make reasonable endeavours to cause the video to be removed even if he did not have direct control or power himself to make that happen.

69    Charge 7 refers only to “failing to remove” and does not engage the “cause to be removed” part of order 4. Had that second phrase been engaged by charge 7, there was ample evidence upon which to sustain such a charge. There is little doubt that the appellant did not in fact comply with the “cause to be removed” component of order 4. On the evidence, it is plain that the most that he did was cause his solicitor to send a perfunctory email to his brother’s solicitor, meekly asking that this be done.

70    Order 4 required the appellant to remove or cause to be removed, inter alia, the video by 4.00 pm AEST on [Saturday] 12 November 2016. The evidence from the appellant’s [former] solicitor was as follows:

(1)    He communicated the 11 November 2016 consent orders to the appellant by email at 1.50 pm on Friday, 11 November 2016.

(2)    He emailed the solicitor for Charif (the appellant’s brother) requesting the video be removed and attaching a copy of the 11 November 2016 consent orders at 5.23 pm on Friday, 11 November 2016. A copy of the email to Charif’s solicitors was in evidence and demonstrated that the face of the email itself made no reference to the time for compliance with order 4.

71    The email sent by the appellant’s [former] solicitor was almost doomed to failure. It was sent to Charif’s solicitor after 5.00 pm on a Friday. This was more than three hours after providing the 11 November 2016 consent orders to the appellant, prior to a 4.00 pm deadline the next day, Saturday. There was no evidence that the appellant took any other steps whatsoever to cause the video to be taken down, such as a follow-up email, let alone anything remotely resembling reasonable endeavours. That too was discreditable conduct.

72    Two further points should be noted about the conclusion reached on charges 6 and 7. First, it does not entail a positive finding that the appellant did not have the requisite control and capacity, as opposed to there being an insufficient basis for finding, beyond reasonable doubt, that he did. Secondly, as dealt with in the conclusion of these reasons, willingness to consent to orders without apparently having any real intention of complying with, or genuinely attempting to comply with them, is a relevant factor to take into account on costs. There is little reason to doubt that had the appellant genuinely wanted the video to be taken down, that would have happened.

Conclusion on the appeal grounds pertaining to charges 6 and 7

73    The appeal against convictions on both charges 6 and 7 succeed by reason of at least appeal ground 7. For completeness, it may be observed that ground 5 was not made out and that grounds 6 and 8 were probably made out for the same reason as ground 7. The conviction and sentence for each of charge 6 and charge 7 must therefore be quashed.

APPEAL GROUNDS PERTAINING TO CHARGES 8 AND 9

74    It should be noted that, as per the summary of the particulars at [13] above, the particulars to charges 8 and 9 include the video which is the subject of charges 6 and 7. The conviction on charges 8 and 9 cannot therefore be taken to extend to the video. This only affects the scope of the matters forming part of the conviction by way of particulars, and does not affect the conviction if otherwise sound. It does, however, have a bearing on the sentence appeal for these charges. This was not an issue raised by the appellant, possibly because it was not considered as a collateral consequence in the event of success on the conviction appeal in respect of charges 6 and 7.

75    The appeal grounds relating to charge 8 are as follows (the text in square brackets alleviates the ambiguity otherwise present in the formulation of these grounds):

9.    His Honour erred in law in failing to find that, having regard to the context in which the 28 and 31 October 2016 publications [tweets] were made, there was no basis to conclude beyond reasonable doubt that (a) the Appellant intended to put improper pressure on the Respondents and their solicitor, Mr MacCallum, or (b) further or alternatively those publications had the tendency to interfere with the administration of justice by seeking to put improper pressure on the Respondents and their solicitor, Mr MacCallum.

10.    His Honour erred in failing to find, in the circumstances of the case, that the 28 and 31 October 2016 publications [tweets] did not involve real risk, as against a remote possibility, that they would interfere with the course of justice in the proceedings.

10A.    His Honour erred in law in failing to consider the effect of the previous sending of the 28 and 31 October 2016 publications [emails] to the addressees thereof and that the charges only concerned a further publication of their contents on the Appellant’s Twitter account.

76    The appeal grounds relating to charge 9 are as follows:

11.    His Honour erred in law in finding that the Appellant was guilty on charge 9 because of the acts of republication found by his Honour with respect to charges 3 and 5.

12.    His Honour should have found that the Appellant did not republish that material.

Charge 9 and the “republication” aspect of charge 8

77    The only grounds advanced solely in support of the appeal against conviction on charge 9 were, in substance, the same as that advanced in support of the appeal against charges 3 and 5 in relation to the issue of publication, by reference to the primary judge’s use of the word “republication”. Grounds 11 and 12 must therefore fail. The same argument was also run as an aspect of the challenge to charge 8, as ground 10A was developed, and must similarly fail.

78    If ground 10A was also intended to suggest that there was no contempt occasioned by the appellant tweeting, on the same day, the emails he had sent to Mr David (and others) and to Mr MacCallum, that is an unsustainable argument unless the content of the emails could not of themselves constitute an administration of justice contempt. The effect of the content of the emails when tweeted is dealt with in the context of grounds 9 and 10 below. On either basis, ground 10A must fail.

Charge 8

79    The remaining challenges to the conviction on charge 8 are the assertions in grounds 9 and 10 to the effect that, in relation to both the 28 October 2016 and 31 October 2016 emails that were tweeted by the appellant on the same day that the emails were sent (and reproduced as part of the primary judge’s narrative reproduced at [9] above), when taken in context and in all the circumstances:

(1)    there was no basis to conclude beyond reasonable doubt that:

(a)    the appellant had intended to put improper pressure on the respondents and their solicitor, Mr MacCallum; and/or

(b)    that the publications had the tendency to interfere with the administration of justice by seeking to put improper pressure on the respondents and Mr MacCallum; and

(2)    the primary judge erred in failing to find, in all the circumstances, that tweeting the two emails did not involve a real risk, as against a remote possibility, that they would interfere with the course of justice in the proceedings.

80    The above points were not taken separately in relation to the aspects of charge 8 that were replicated in charge 9. That may have been because the points being made would only affect some of the particulars to charge 9, even though if they were successful that could have a bearing upon the sentence appeal.

81    No issue was taken with the statements of principle summarised by the primary judge at liability judgment [95]-[99]. It is not in doubt that bringing improper pressure to bear on a litigant can constitute a contempt of court, depending upon what has been done and when, especially as to the degree of connection with the proceedings and the likely impact upon them. It must be clearly shown that the matter published has “as a matter of practical reality, a tendency to interfere with the due course of justice” in the case at hand: John Fairfax & Sons Pty Ltd v McRae (1995) 93 CLR 351 at 370, approved in Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 27-28 per Mason CJ.

82    The Chief Justice in Hinch referred to a “substantial risk of serious interference”. Also in Hinch, the tendency referred to in McRae was described as a “clear tendency” by Deane J at 47, and as a “real and definite tendency to prejudice or embarrass pending proceedings” by Wilson J at 34. The principles to be applied when the contempt alleged is by way of improper pressure on a party to litigation were summarised in nine subtopics by Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27-30, and again were not in doubt. The issue in this case was one of characterisation.

83    The primary judge dealt with the substance of charges 8 and 9 in some detail as follows:

Charges 8 and 9 – Adam’s submissions

100    Adam argued, initially, that charge 8 should be regarded as a form of abuse of process, since it had not been evident when he consented to the 11 November orders that, at that time, the [respondents] were contending that the 28 and 31 October publications amounted to contempt by bringing improper pressure. However, as senior counsel for the [respondents] pointed out, their written submissions filed on 9 November 2016 in respect of their interlocutory application for injunctions that had been listed for hearing on 11 November 2016, referred to this very species of contempt in a number of paragraphs.

101    Adam argued that each of the 28 and 31 October publications was largely hyperbole that was not realistically to be categorised as an attempt to bring improper pressure. He argued that his admission, by consenting to the injunctions made on 11 November 2016 requiring him to remove each of those two publications, could not be used as evidence against him on charges 8 and 9.

102    Adam argued that each of the 28 and 31 October publications was not a public statement, and indeed, the subsequent publications of references to the website were not themselves public statements of so much of what was in the 22 posts as referred to Mr David. He argued that there was no evidence that either any of the 22 posts or the video was a public statement by him. He argued correctly, in my opinion, that, in the absence of any evidence of the full contents of the video, there was no evidence that publication of the video, viewed in its context as a whole, was capable of constituting the contempt currently alleged in charges 8 and 9.

103    Adam argued that, because the principal proceedings were not likely to be heard by a jury, having regard to the ordinary rule provided in s 39 of the Federal Court of Australia Act 1976 (Cth), the trial of proceedings in the Court, unless the Court otherwise orders under s 40, will be by judge alone. He contended that a judge, including myself, is not likely to be influenced by any of the material appearing on the website or other publications of the kinds complained of, and that, accordingly, none of the material complained of would give rise to any risk of public or judicial prejudgment. However, that argument did not address the substantive thrust of the allegation of contempt in charge 8, which was that it amounts to contempt to bring improper pressure to bear on a party, as opposed to what constitutes a contempt by publication.

104    Adam argued that there was no context to the 28 and 31 October publications at the time they were made and that they appeared to relate to distinct matters, quite apart from the substantiative proceedings. Indeed, he pointed to the opening portions of the 31 October publication that rejected Mr MacCallum’s attempt to link the conduct complained of, including what appeared to have been some earlier driving of vans, to the principal proceedings that had been filed in 2014.

Charges 8 and 9 – consideration

105    In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 at 388 [41], French CJ, Kiefel, Bell, Gageler and Keane JJ said:

In Re Colina; Ex parte Torney [(1999) 200 CLR 386 at 429 [112] – with emphasis in the original], Hayne J described “the cardinal feature of the power to punish for contempt” as being that it “is an exercise of judicial power by the courts, [the words “by the courts” being emphasised] to protect the due administration of justice”. (italic emphasis in original)

106    Adam admitted, for the reasons I have given above, that he had made each of the 28 and 31 October publications and he was able to remove each from his Twitter account. On the evidence before me, that admission was based on facts that were undeniable. For example, the 28 October publication appeared to be a reproduction of an email from Adam on his Twitter account, to the authenticity of which there is no contrary evidence. That publication referred to matters that appeared to relate to a considerable history of dealings between him and Mr David. Similarly, the 31 October publication was made on what appeared to be Adam’s Twitter account, and its authenticity does not appear to be seriously capable of being disputed. It referred to, among other things, a van that was being driven around Sydney and various allegations made against Mr David that are substantively repeated many times in the 22 posts and on the vans. On the evidence before me, that repetition on the vans (leaving aside any republication on the vans by reference to the website), subsequent to 11 November 2016, was confined to allegations about Mr Singh, rather than Mr David, allegedly stealing $180 million. However, the whole tenor of the 22 posts directly, and the other material in evidence indirectly, implicated Mr David in that activity because, for example, some of the seven tweets named Mr Singh as a co-conspirator.

107    I am satisfied beyond reasonable doubt that Adam knew, when he sent and posted on his Twitter account each of the 28 and 31 October publications, of the substantive issues in the current proceedings. And, he knew that the [respondents] were pursuing the substantive proceedings. That is because he was a respondent to the substantive proceedings, albeit not then an active one, while his brother Charif was an active respondent. Each of the 28 and 31 October publications referred to allegations about Mr David, together with Mr Singh, of whom was being alleged to have stolen $180 million from Adam’s brothers Charif and Tony. Each of the 28 and 31 October publications also referred, with some perhaps understandable degree of passion, to Adam’s complaints that Mr David allegedly had impersonated him and other members of his family by setting up websites that had the effect of defaming them.

108    However, each of the 28 and 31 October publications was expressed in very threatening terms. For example, in the 28 October publication, Adam wrote:

I will show you that I am not going to put up with the crap you tried to dish out to my brothers.

109    Adam also made threats to use his team in Los Angeles to “expose” Mr David and to use another team in Sydney to do so in respect of what Adam alleged were Mr David’s “crimes” against Adam’s family. He stated that:

[T]he truth of what you get up to [will be] reported for the world to see your true colours.

110    In the 31 October publication, Adam went further. He accused Mr MacCallum in a public forum, namely Adam’s Twitter account, of what could only amount to Mr MacCallum being party to a conspiracy to pervert the course of justice.

111    I am satisfied beyond reasonable doubt that the nature of the threats and accusations against Mr MacCallum in the 31 October publication had the tendency to intimidate him in relation to his association with, and acting for, the [respondents]. I am also satisfied beyond reasonable doubt that each of the 28 and 31 October publications had the tendency to interfere, in a serious and deliberate way, with the administration of justice by seeking to bring improper pressure to bear on the [respondents] as well as, in the 31 October publication, on Mr MacCallum, in relation to their conduct or wish to pursue the principal proceedings. For example, in the 31 October publication, Adam made a threat, that his counsel asserted was hyperbolic, but which, in my opinion, was deliberate and, as events have proved, real, that he reserved the right to not only continue using one van, but also to increase the size of his fleet unless his demands, as he dictated them, were met. Adam threatened that he would continue to agitate the very subject matter of the present principal litigation as part of his campaign to seek, so he said, redress for the alleged misdeeds of Mr David and Thunder Studios in publishing matters in which they had assumed the Kazal family members’ identities. Adam asserted there that if Mr MacCallum thought he was “going to stop then clearly you also aren’t a very good lawyer” and went on to threaten that he would post images and derogatory, and presumably defamatory, matter about Mr MacCallum on his “growing fleet of vans” if his demands were not met.

112    I am satisfied beyond reasonable doubt that those threats amounted to the bringing of improper pressure on the [respondents] and their lawyer that had the real and serious tendency of obstructing the administration of justice by seeking to threaten an escalation of the conduct complained of unless Adam’s demands were met by a complete capitulation.

113    For these reasons, I am satisfied beyond reasonable doubt that Adam is guilty on charge 8.

114    Charge 9 relied on evidence, first, as to Adam’s intention, as revealed in the 28 and 31 October publications, to mount an escalating campaign against Mr David and, secondly, to his acts of republication of the contents of the 22 posts by the publication of the website address on the vans and in the seven tweets and their invitations to readers to go to the website itself, so as to create the republications that I have found in respect of counts 3 and 5, as well as the seven tweets.

115    I am satisfied beyond reasonable doubt that Adam knew that each of his republications would take any person who went to the website to material in it that published the very things that he had threatened to do in the 31 October publication, namely, to allegations about Mr David and his alleged theft of $180 million in association with Mr Singh. Adam’s escalation of activity, including, for example, increasing the number of vans he used from one to two and then four, that from time to time he caused to be parked in the city of Sydney, displaying the references to Mr Singh being a corporate thief and the invitations to visit the website, as also contained in each of the seven tweets, demonstrated, beyond reasonable doubt, that Adam’s conduct constituted a contempt by bringing of improper pressure on the [respondents] that had the tendency to obstruct the administration of justice.

116    For these reasons, I find Adam guilty of charge 9.

84    The written submissions for the appellant framed the case somewhat differently to the way in which the amended notice of appeal was cast. Those submissions came down to only a few points of substance on the topic of improper pressure, namely:

(1)    The 28 October 2016 and 31 October 2016 tweeted emails, which were particulars to charges 8 and 9, related to matters other than the substantive proceedings and the primary judge erred by finding otherwise.

(2)    The primary judge, by referring to matters raised in the emails concerning the history of dealings between the appellant and Mr David, was influenced by the content of the emails that did not refer to the substantive proceedings.

(3)    The 31 October 2016 email was addressed to the respondents’ solicitor, against whom there was no charge of improper pressure, and the email should have been treated by the primary judge as being hyperbolic in tone and content. It was submitted that there was no connection between the threats identified by the primary judge and continuation of the proceedings, the email itself stating that the appellant had ceased to have anything to do with the proceedings. It was further submitted that any implied reference to the proceedings in the emails was only tangential or incidental to the appellant’s purpose of addressing prior conduct of the respondents.

(4)    There was an erroneous focus on the original sending of the emails, rather than their republication on Twitter. It was submitted that the primary judge did not consider any additional effect of publicly distributing the emails on Twitter by the 28 October 2016 tweet and the 31 October 2016 tweet. This led to the ultimate submission that the primary judge had misunderstood the charges and accordingly his Honour’s reasons in the liability judgment did not apply to a later publication of the emails on Twitter.

(5)    The material (referring only to the tweeted 28 October 2016 and 31 October 2016 emails and the video, but not the vans, the website posts or the seven tweets) did not reach the necessary threshold of what was styled as an “improper influence” contempt. It was conceded that the emails were offensive, emotional and hyperbolic but it was submitted that the emails were focused on the prior conduct of the respondents rather than the proceedings. It was submitted that the primary judge focused on the offensive language in the tweeted 28 October 2016 and 31 October 2016 emails, rather than identifying the improper pressure on the conduct of proceedings.

(6)    The communications did not have the requisite likelihood of deterring Mr David from pursuing the litigation.

85    The respondents countered with the following submissions:

(1)    The threats made were extreme, including the demand for a substantial sum of money from the respondents, noting that the second respondent (Mr David) would almost certainly be a witness in the substantive proceedings.

(2)    The 31 October 2016 tweet, which included the 31 October 2016 email, constituted a public statement intended or calculated to influence the respondents in relation to the pending proceedings. This was both direct to Mr David, who was the second applicant (and present second respondent) in the substantive proceedings, and indirect via intimidation of the substantive applicants’ (present respondents’) solicitor.

(3)    The notion of the substantive proceedings being only incidental was said to be untenable when express reference was made to them.

(4)    As to the limitation to republication on Twitter rather than the content of the original emails, it was submitted that the charges were not so limited and this point was not taken below. In any event, it is the effect of the private communication being made public via Twitter that matters.

(5)    The fact of the respondents not as yet being deterred from continuing with the proceedings does not go to liability.

(6)    The due administration of justice will fare very badly if the intimidation of litigants by means of such tactics as online media attacks, or other uncontrolled public attacks, is allowed, or not prevented, or not punished, and thereby potentially practically encouraged – this is akin to concerns expressed in numerous authorities in relation to “trial by media”.

Conclusion on the appeal grounds pertaining to charges 8 and 9

86    None of the points taken on behalf of the appellant are persuasive. The points taken on behalf of the respondents are compelling. Each of the conclusions reached by the primary judge were reasonably available and represented a fair characterisation of what has taken place.

87    To the extent that charges 8 and 9 concerned public statements, the primary judge’s reference to the original emails was plainly in the context of them being made public. What was being said in those emails was broadcast via Twitter, turning it from a private communication to a small number of recipients into a public one, ratchetting up the pressure and thus the adverse influence on the respondents generally and Mr David in particular. It was the combination of what was said and that being made public that was the gravamen of this aspect of the contempt alleged. The nexus to the substantive proceedings, both in terms and contextually cannot properly be dismissed as either incidental or mere hyperbole. The balance was the background and context to the proceedings. It is not to the point that the appellant may have been seeking to advance an agenda which was broader than influencing the substantive proceedings. There is no requirement of dominant, let alone sole purpose or effect. What matters is that it can clearly be seen that the appellant was deliberately bringing extreme pressure to bear. It was a plain, deliberate and serious administration of justice contempt.

88    There was no error on the part of the primary judge in relation to charge 8, nor in relation to the corresponding particulars to charge 9, save for the consideration of the video particular as previously identified. Each of grounds 9 and 10 must therefore fail.

SENTENCE APPEAL

The sentence hearing and result

89    On 27 February 2017, the primary judge conducted a sentence hearing. On the same day, by ex tempore judgment, his Honour sentenced the appellant to six wholly concurrent terms of imprisonment to commence that day, the shortest of which was for two months and the longest of which was for 18 months. The ex tempore reasons were published in early March 2017, in a form revised from the transcript: Thunder Studios Inc (California) v Kazal (No 2) [2016] FCA 202 (sentence judgment).

90    The sentences that were imposed were as follows, in order of duration:

91    While the sentences for charges 6 and 7 must be quashed because the corresponding convictions must be quashed, it remains important to have regard to the sentences imposed for those charges for a number of reasons:

(1)    Consideration of all of the sentences imposed assists in better understanding the approach taken by the primary judge in differentiating between the different charges and resulting convictions.

(2)    When taken with the sentences for the convictions that have been upheld, the sentences on charges 6 and 7 indicate that the primary judge did not impose sentences of a uniform duration, but rather clearly had regard to what his Honour considered were material differences in the objective seriousness of the conduct reflected in each charge.

(3)    The video-related charges were plainly regarded by the primary judge as the least serious, by a considerable margin, but still warranted a custodial sentence of two months.

(4)    The video also formed part of the particulars for charges 8 and 9, and therefore was not properly available to be taken into account on sentence for those convictions – this is considered below after addressing the submissions of the parties.

Sentence grounds of appeal

92    The grounds of appeal on sentence may be summarised as follows:

(1)    Ground 13 asserts error in finding that it was open to sentence the appellant on the basis that the contempt in each case was contumacious when there was no basis to conclude beyond reasonable doubt that the appellant understood the 11 November 2016 consent orders prohibited him from publishing the URL of the Family Website.

(2)    Ground 13A asserts error in determining contumacy for charges 6 and 7 as if they were a single criminal contempt when two separate contempts were alleged. Alternatively, this ground asserts error in entering separate criminal convictions and sentences (each of two months) when there was only a single contempt.

(3)    Ground 14 asserts error in imposing a sentence in relation to each charge that was manifestly excessive.

(4)    Ground 15 asserts error in imposing an overall sentence that was manifestly excessive.

93    Two grounds may be dealt with at the outset. Ground 13A, pertaining only to charges 6 and 7, does not require consideration in light of those convictions and thus sentences being quashed. Ground 15 must fail as it was accepted by senior counsel for the appellant during the course of the appeal hearing that the wholly concurrent sentences meant that there was no scope for any totality argument, as sought to be advanced by ground 15.

94    Ground 13 alleges error as to findings of contumacy by the primary judge. Ground 14 alleges manifest excess as to each individual sentence. Other errors, either asserted in the submissions for the appellant, or otherwise discerned, may be seen as further possible specific errors to be considered to explain how the asserted manifestly excess sentences might have been arrived at, and must therefore be addressed. Those raised by the appellant are addressed below. Additionally, the following factors fall for consideration because they flowed from the outcome of the conviction appeal (despite not being addressed on behalf of the appellant):

(1)    the effect of the finding in these reasons that the inclusion of order 1 in charges 3 and 5 was an error and could not form any part of the basis for those convictions; and

(2)    the effect of quashing the convictions and sentences for charges 6 and 7 on the sentences imposed for charges 8 and 9, given that the video formed part of the particulars to charges 8 and 9.

Contempt sentencing principles

95    The approach to be taken to sentencing for contempt is informed by an appreciation of the nature of contempt proceedings and the objects sought to be advanced by such proceedings, as set out earlier in these reasons at [20] to [27]. Some additional principles specific to sentencing follow.

96    In Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113, the High Court held that sanctions could be imposed for contempt in order to punish past non-compliance, or coerce future compliance, or both, unless the refusal or failure to comply with an injunctive order was casual, incidental or unintentional. These were features which the respondents contended were wholly lacking in this case. In a passage from Mudginberri at 107, quoted by the primary judge at [5] of the sentence judgment, it was observed that distinctions drawn between contempt in disobeying court orders and contempt impeding the administration of justice overlooked:

… the underlying rationale of every exercise of the contempt power, namely that it is necessary to uphold and protect the effective administration of justice. 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. As the authors of Borrie and Lowe’s Law of Contempt, 2nd ed (1983) say, at p. 3:

“If a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.”

97    The plurality in Boral observed at 388 [41], endorsing the statement of principle by Hayne J in Re Colina; Ex parte Tourney [1999] HCA 57; 200 CLR 386 at 429 [12], that the “cardinal feature of the power to punish for contempt” was as an exercise of judicial power to “protect the due administration of justice”. Viewed in that way, contempt proceedings are essentially protective in nature as to the judicial function and the role of the courts, even if they also serve to vindicate private interests and rights. Contempt proceedings are therefore to be viewed as essential in facilitating courts being able to function properly. That includes being, and being seen to be, effectual in adjudicating upon and resolving disputes, and in particular making orders that will ordinarily be obeyed. This means that individual contempt cases have an importance transcending the instant case by supporting and enhancing the integrity of judicial proceedings, both in respect of orders made, and more generally. That view of contempt proceedings can be seen to permeate longstanding sentencing authority in this area.

98    In Viner v Australian Building Construction Employees’ and Builders Labourers’ Federation (No. 3) (1982) 63 FLR 242, union officials were found guilty of contempt of court by way of intimidating conduct engaged in for the purpose of, and with the tendency to, dissuade persons from giving evidence on behalf of the Master Builders’ Association and others seeking to deregister the union, or alternatively to dissuade those persons from giving unfavourable evidence in those proceedings. Keely J at 244 cited longstanding authority to the effect that there can be no greater contempt than to intimidate a witness before giving evidence. His Honour further observed that it was difficult to imagine a greater contempt than to engage in conduct for the purpose of inducing a party to discontinue proceedings. Those observations apply equally whether the contempt entails disobeying a court order, or contempt without any specific order being in place.

99    Keely J in Viner at 247.7 cited and quoted Re B (JA) (An Infant) [1965] Ch 1112 at 1123 in which it was said that when such conduct takes place:

… the mere fact that no harm has been done in this particular case is neither here nor there. It would be unfortunate if the idea got abroad that if people threaten witnesses in this way, the worst that is likely to happen to them will be that they have to pay some costs and make an apology.

100    Keely J then observed at 247-8:

The present respondents and any other persons who are likely to commit similar acts must be made to realize that, when such acts are proved before this Court, punishment will follow and that in future cases penalties will be of whatever severity is necessary to ensure that such acts are not committed and that parties and potential witnesses are accorded the protection of the law to which they are entitled. The penalties imposed on the three respondents must be sufficient to make clear the serious view which this Court takes of the respondents’ conduct. It must be understood also that any repetition of such conduct will invite substantially heavier penalties.

101    In Matthews at [129], Tobias JA (with whom Basten and Campbell JJA agreed on this point) quoted with evident approval nine considerations the sentencing judge in that case had considered relevant to the question of determining an appropriate punishment for contempt of court as follows:

(1)    the seriousness of the contempt proved;

(2)    the contemnor’s culpability;

(3)    the reason or motive for the contempt;

(4)    whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

(5)    whether there has been any expression of genuine contrition by the contemnor;

(6)    the character and antecedents of the contemnor;

(7)    the contemnor’s personal circumstances;

(8)    the need for deterrence of the contemnor and others of like mind from similar disobedience; and

(9)    the need for denunciation of contemptuous conduct.

102    That is a useful list of considerations that may properly be seen to have a part to play in a given case, although not exhaustive. Although (8) is directly concerned with deterrence, all of the other factors are also relevant to differing degrees in ascertaining the need for deterrence. A number of decisions of this Court on the approach to penalties for contempt, helpfully summarised by Tracey J in Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) [2017] FCA 522 at [140]-[143], refer to a number of the matters of the kind that appear in the Matthews list in more detail and somewhat more besides.

103    The burden of the additional authority in this Court is to add weight to the factors listed in Matthews, rather than requiring any change by way of addition, subtraction or variation. The focus remains on the core themes of the objective seriousness of the conduct and, in particular, its effect on the administration of justice, subjective factors such as the contemnor’s culpability, antecedents and attitude, including in particular any apology or other palpable sign of contrition, the capacity to pay a fine, and imprisonment being a last resort. Deterrence remains a dominant theme, both specific and general. Even denunciation and punishment can be seen as bolstering deterrence. That is especially so when the conduct entails contemplation and the opportunity to reflect and desist.

104    It follows from the foregoing that it is essential to the due administration of justice that contempt of court, and in particular serious contempt of court, remains relatively rare. Vigilance is required to help ensure contempt remains a rare problem. Whenever there is a real need for deterrence, be it specific or general, that will always be a vitally important consideration in determining the appropriate penalty. An analogy can usefully be drawn from well-established criminal authority in the Full Court case of R v Tait and Bartley (1979) 24 ALR 473, in which it was observed by Brennan, Deane and Gallop JJ at 485:

When an organized, costly and complex offence [here contravention] is contemplated, the risk of apprehension and the severity of punishment is evaluated; and thus there can be no other class of case in which the deterrent effect of punishment can more confidently be assumed to operate.

State of mind

105    State of mind can serve to mitigate or aggravate conduct by a contemnor. In the case of aggravation, this is reflected in the conclusion reached as to whether or not the nature of the contempt, combined with the proven state of mind, may be regarded as contumacious. Evidence of an innocent or inadvertent state of mind may serve to mitigate. It follows that state of mind will almost always be a relevant consideration when it comes to penalty, somewhat analogous to the situation with civil penalty contraventions: cf Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at 54 [123]-[124].

106    Aggravation by way of conduct and a state of mind found to be contumacious can be seen to be on a sliding scale. For example, it may range from deliberate and wilful defiance, to an unsuccessful attempt to get around a prohibition, to an unsuccessful attempt to comply with a prohibition. Proven recklessness or carelessness may be seen not to be contumacious at all. This process of characterisation is inevitably driven by close attention to what was done. This includes what can be said about state of mind able to be ascertained from all of the evidence, including by way of inference.

Manifest excess

107    As Gleeson CJ and Hayne J observed in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325-6 [6]:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

108    The ground of manifest excess (in this case as to each of the individual sentences, raised by ground 14), especially when considered without any finding of specific error, requires this Court exercising appellate jurisdiction to approach the purely discretionary aspect of penalty imposed with some caution. House v The King (1936) 55 CLR 499 was a case about discretionary decision-making in the analogous context of criminal sentencing. The principles in that case at 504-5 on this topic therefore bear repeating:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

109    In Reckitt at 38, the following observations were made as to the types of error identified in House v The King and discussed in subsequent recent authority:

51    Error may be specific, in the sense of apparent on the face of the reasons given, such as by application of a wrong principle in reaching the result (which may be evident by the primary judge addressing the wrong question), reaching the result by taking into account something that should not have been considered or by failing to take into account something that should have been considered, or by making a determinative error on the facts in the sense that the factual finding was not properly available to be taken into account in a way that affected the outcome.

52    Alternatively, error may be inferred from a result that cannot have been arrived at without some kind of operative error. The influence of the reasons given for the result arrived at on this process will vary. Reasons are not to be ignored, but nor do they necessarily confine in a rigid or inflexible way the scope of the appellate inquiry. It may be legitimate to have regard to what was said and not said in order to identify how the asserted erroneous result was reached. But for error to be inferred from the result, the result must be one which was not open on the evidence or facts found or agreed.

53    In all cases of specific error, the error must have either caused or materially contributed to the result. An error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene, at least as to the result.

110    The concept of unreasonable or plainly unjust as a basis for finding or inferring error has a flavour akin to Wednesbury unreasonableness insofar as it focuses the mind on an asserted inherently wrong outcome. It is a significant conclusion to reach if it only arises for consideration in the absence of any identified or established overt error.

111    It follows that manifest excess (or inadequacy) can be very difficult to establish without attendant overt error in some respect, except in very clear cases, as the next topic demonstrates. The High Court has made it clear that manifest excess (or inadequacy) is not to be determined as a matter of intuition, but rather is to be revealed by consideration of all the matters relevant to fixing the sentence: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 539 [60]. It may be evident when due regard is had to the nature of the contempt and, if available, closely comparable cases: see, by analogy, Hili at 539-540 [62].

112    Judges have a wide discretion as to the magnitude of the penalty to be imposed, and it is only when the outer boundaries of that discretion can be shown to have clearly been exceeded by consideration of all of the facts and circumstances that the conclusion will be able to be reached that the discretion has miscarried. That is especially difficult when there is a lack of any or sufficient yardsticks from prior sufficiently similar cases against which to compare the instant sentence, remembering that there is no single correct sentence: Hili at 542-543 [74], citing in particular Pearce v The Queen (1998) 194 CLR 610 at 624 [46]. Even a marked disparity with prior like cases may not suffice: Hili at 538-539 [59]. Overt material error of some kind is therefore commonly advanced and relied upon at least to trigger intervention and resentencing, but also to demonstrate manifest error in the result.

Use of sentencing statistics as a yardstick

113    It may be observed that sentences for contempt are even less prevalent than sentences for federal offences, being the central problem with the use of prior sentences in federal criminal sentencing identified in Hili at 535 [48] (extracted below at [114]). A reasonable pool of prior sentences is the primary way in which meaningful yardsticks can be derived for the purpose of assessing a sentence proposed to be imposed. Even less prevalent are the cases of contempt in which a term of imprisonment is imposed. As a practical consequence, it is inherently difficult to show manifest excess (or inadequacy) of sentence for contempt based on the result alone unless obviously extreme or otherwise disproportionate to the conduct and circumstances. That reality tends to focus the mind of the moving party on comparative sentences or penalties as a means of demonstrating error in the result. However this is an area fraught with difficulty, not least because prior sentences are not and cannot be precedents.

114    The issue of yardsticks derived from prior cases as a means of assessing whether a particular sentence is manifestly excessive (or inadequate) calls for an assessment of what a given sentence can be compared to, and how. In Hili it was observed at 535 (footnotes omitted):

47    As Gleeson CJ pointed out, in Wong v The Queen:

“All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.”

(Emphasis added.)

48    Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.

115    As was pointed out by the plurality (French CJ, Keane and Nettle JJ) in The Queen v Pham [2015] HCA 39; 256 CLR 550 at 559 [28(5)], the “presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided”, having particular regard to the object of consistency being directed to principle rather than numerical equivalence. That observation was made as to like offences, and has even more force for entirely different offences, and for contempt sentencing. Their Honours in Pham also quoted from and approved [48] in Hili, reproduced above.

116    During the course of the hearing of the appeal, senior counsel for the appellant handed up statistical information from the New South Wales Judicial Commission’s judicial information research system (JIRS). The information was presented in the form of bar charts presenting sentencing statistics from July 2009 to June 2016 for:

(1)    offences under the Crimes Act 1900 (NSW) of:

(a)    aggravated indecent assault of a child under the age of 16 contrary to s 61M(2);

(b)    assault occasioning actual bodily harm contrary to s 59(1);

(c)    assault occasioning actual bodily harm in company contrary to s 59(2);

(d)    indecent assault contrary to s 61L;

(e)    dangerous driving occasioning death by driving in a manner dangerous to another person or persons contrary to s 52A(1)(c); and

(f)    robbery contrary to s 94; and

(2)    offences of supplying a prohibited drug, being not less than a commercial quantity, including deemed supply, contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW).

This material was sought to be relied upon to demonstrate in some way that the penalties imposed upon the appellant were excessive. That material should be rejected at the levels of practicality and principle.

117    As to practicality, it is difficult to see how any meaningful comparison can be drawn between contempt of court and offences of the kind listed above, especially when the graphs constitute no more than raw statistics without any detail as to any of the objective and subjective circumstances. To compound that lack of context, the graphs which demonstrated sentence term were organised in six-month increments for sentences of up to 5 years (with annual and then two-yearly increments thereafter) and included the following warning: “CAUTION: all data rounded upwards eg a term of 7 months would be shown in “12m””. There is no proper foundation for any meaningful comparison. The graphs sought to be relied upon were therefore of no practical use.

118    The more fundamental objection is one of principle, in accordance with Hili and Pham referred to above. As already observed, sentences for contempt are much less prevalent than sentences for federal offences. Even less prevalent are the cases when a term of imprisonment is imposed. It is therefore difficult to discern any substantial pattern in the quantum of contempt sentencing to provide a meaningful yardstick by which to measure the present sentences. Sentences imposed for unrelated and dissimilar offending cannot fill that gap.

Ground 13 – contumacy

119    Different arguments were advanced on behalf of the appellant in relation to the primary judge’s findings of contumacy, both of contempt in breaching the Court’s orders and contempt concerning the administration of justice. Accordingly, ground 13 is addressed in relation to each type of contempt below.

Contumacy in breaching the Court’s orders (charges 3 and 5)

120    The primary point taken in the appellant’s written submissions in relation to contumacy on the convictions on charges 3 and 5 for breaching the Court’s orders was that there was error in finding this upon the basis of recklessness. In keeping with the principles outlined above, the appellant relied upon the fact that, while state of mind was not able to be advanced in defence of the charges, it was undoubtedly relevant to penalty.

121    It should be noted that “reckless” was not a term or concept that the primary judge expressly used in the sentencing judgment. That term was apparently advanced on behalf of the appellant as an inference to be drawn as to his Honour’s reasoning processes, or an exercise in characterisation of those reasons, or perhaps both. It seems to flow from the appellant’s argument in relation to charges 3 and 5 (and implicitly, the parts of charge 9 that related to the website posts via the seven tweets of the emails to a SMH journalist and via the vans), attacking his Honour’s finding, beyond reasonable doubt, that the appellant knew that the Family Website “contained, or would probably contain” the website posts such that a person who went to the website “would or probably would” see something to the effect of the website posts which “would or probably would” carry the proscribed imputations: see sentence judgment [32]-[33]. It was said that this reasoning entailed three layers of knowledge of the probability of what would be encountered by a visitor to the Family Website, which it was said at most gave rise to a finding that the appellant acted merely with foresight as opposed to intention or an equivalent expectation. The substance of the submission was that there was an absence of aggravation in the nature of the conduct being contumacious. It was further submitted that there was no evidence as to what a person would have to do after accessing the website to be redirected to any of the posts (a point that is addressed below).

122    It was also submitted that the primary judge erred by treating the extent to which the appellant sought to comply with the orders as an aggravating factor for charge 3 (the vans) and failed to draw a distinction between the fact of his awareness of the orders and his subjective understanding of their terms.

123    It was submitted on behalf of the appellant that his attempts to comply with the consent orders by removing references to Mr David from the vans, and implicitly not referring directly to Mr David in the seven tweeted emails, mitigated his offending. This was characterised by senior counsel for the appellant at the hearing of the appeal as being an attempt to publish no more than a grievance, while removing the object of criticism, namely Mr David, in deference to the consent orders. It was asserted that the primary judge erred in this respect, especially at [47].

124    The respondents characterised the appellant’s submissions on compliance or partial compliance as misunderstanding the primary judge’s sentencing remarks at [47], where his Honour stated:

Each of the four breaches and charge 9 related to one course of conduct. The four breaches were the means by which you committed, after 11 November 2016, the interference contempt in charge 9. Had you desisted, after consenting to the 11 November orders, that consent and conduct would have been a significant mitigating factor in relation to any charge that might have been brought in the nature of charge 8 and could well have been seen, at that time, as a recognition of your wrongdoing and an attempt to make amends. But you did not desist. You made a small change to your behaviour by altering the appearance of the vans so that they ceased to refer directly to Mr David by name and photograph. But, you then escalated your public pressure on the [respondents] by using more vans and posting more tweets, by your threats that “all would be exposed” and by your public invitations, at every opportunity you had, to readers of the material that you published, that I have found in breach of the orders of 11 November, to “read the full story” by visiting the website.

125    The substance of the respondents’ submission on [47] of the sentence judgment was that rather than the appellant simply desisting from the proscribed conduct following the 11 November 2016 consent orders, he instead changed the vans by deleting express reference to Mr David but otherwise continued and escalated his conduct. It was therefore submitted that it was open to the primary judge to find, on the evidence before his Honour, including the tweeted emails of 28 October 2016 and 31 October 2016 which referred to the vans and increasing their use, that the appellant set out knowingly to do what he did, namely to publish the Family Website and encourage visits to it which would supply the proscribed text, in wilful disregard of the Court’s orders and in a highly organised and ongoing way. It was submitted that the evidence supported the finding by inference by the primary judge that the appellant knew of and understood the orders and that this conclusion could safely be drawn in the absence of any evidence to contradict that.

126    In response, in relation to charges 3 and 5 (as also relevant to the website particulars to charge 9), the respondents relied upon the appellant’s close awareness of what was on the Family Website. Following the analysis in the conviction part of the reasons at [56]-[57], that much cannot be doubted. By tweeting the emails to the SMH journalist (on the same day that they were sent) and by the public parade of the vans, the appellant was enticing and strongly encouraging any reader to go to the Family Website. He plainly wanted that to happen. It was the outcome he intended, even if he thought that he had managed to do this in a way that evaded the orders he had consented to.

127    It should also be noted that there was no evidence of the benign state of mind relied upon by the appellant, contrary to the inferences readily available to be drawn. Those inferences include that he knew he would be in breach of the orders he had consented to, but thought he could get away with it by the device of the text about Mr David being on the Family Website, rather than in the emails, in the tweets or on the side of the vans.

128    Intention is a state of mind that is more commonly proven by inference than by direct evidence, at least when that intention is adverse to the interests of the person said to have that state of mind. It is therefore useful to have regard to other areas of the law in which intention is sought to be inferred. For example, the reasoning processes available to a jury to infer an intention to import a substance (which is in fact illegal drugs) may be helpful to identify similar reasoning processes available to a judge as the tribunal of fact to infer an intention that a person encouraged to visit a website will find particular information there. If the evidence established that the appellant must have been aware that there was a real or significant chance of the proscribed material being present on the Family Website, which by his conduct he encouraged and thereby directed any reader to visit, it is open to infer, on the basis of all the facts and circumstances that he intended that such a visitor would view such material: cf Smith v The Queen; The Queen v Afford [2017] HCA 19; 91 ALJR 621 at 637-8 [60].

129    It could not seriously be contended that the appellant was other than fully cognisant of what was likely to be found and read on the Family Website, including adverse information about Mr David of the kind that he had agreed not to publish and had also agreed to remove, thereby necessarily acknowledging its existence (which is quite separate from his capacity to give effect to that agreement and therefore to those orders as addressed in relation to the conviction on charges 6 and 7). It was therefore open to the primary judge to infer that the appellant intended those who saw the vans and who read the seven tweets of the emails would go to the Family Website and there find information about Mr David of the very kind he knew he was prohibited from publishing and which he had agreed not to publish.

130    The appellant’s reliance on words used in the sentence judgment at [32]-[33], concerning the assessment of the appellant’s conduct by the use of the vans was misplaced. The references by the primary judge to the appellant’s knowledge that the Family Website’s URL on the side of the vans would, or probably would, contain material of the type to be found in the website posts and convey imputations of the kind proscribed by the 11 November 2016 consent orders, and be read by a visitor to the Family Website, was no more than ascertaining what the appellant’s appreciation was as to the practical consequences of his actions in order to determine what his intention must have been. His Honour’s conclusion in the sentence judgment at [35] was that the appellant had committed a serious and deliberate flouting of the orders, which was highly organised, ongoing, and included other participants. This was found to be a public defiance of the authority of the Court and its orders. Each of those conclusions was fairly open to his Honour, especially in the absence of evidence to rebut the reasonably available inference that the conduct was both deliberate and defiant. This did not entail any reasoning as to recklessness, but rather deliberateness and therefore defiance, a conclusion that was fairly open to his Honour.

131    It is not to the point that the appellant may have thought that he had found a clever way to get around the respondents being able to prove that he had contravened the orders by the device of having the proscribed information on the Family Website rather than on the side of the vans, in the emails that were tweeted and in the tweets themselves. It certainly cannot in these circumstances operate to mitigate his conduct in any way in the absence of proof, contrary to the evidence able to be relied upon, that he did not possess the intention and defiance otherwise able to be inferred: cf Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41; 150 FCR 110 at 118-120 [32]-[38], quoting from and considering Morgan on this topic.

132    It was plain that the appellant knew what was on the Family Website and was encouraging anyone who saw the vans or read the seven tweets to go there and read the adverse material available by which “all involved” would “be exposed”. The evidence by way of printouts from the Family Website disclosed that the website had navigation tabs which would enable material to be found, including specifically in relation to Mr David. It was therefore not correct, as submitted on behalf of the appellant, that there was no evidence as to what a visitor to the Family Website would need to do in order to access material on it. The navigation was reasonably self-evident.

133    It follows that it was open to the primary judge to reach the conclusions that his Honour did as to contumacy in relation to charges 3 and 5. The objections to the conclusions reached by the primary judge on this topic fail at the level of both characterisation and conclusion.

134    This aspect of ground 13 on sentence must fail.

Contumacy in contempt concerning the administration of justice (charges 8 and 9)

135    In relation to contumacy in each contempt concerning the administration of justice reflected in the conviction on charges 8 and 9, it was submitted on behalf of the appellant that “as a matter of practical reality, a tendency to interfere with the due course of justice” was minimal in the context of a long and bitter public dispute between the parties (citing McRae at 370). It was said to be erroneous to sentence the appellant on a different and more serious basis.

136    It was also submitted that it was not open to sentence the appellant upon the basis that he escalated public pressure on the respondents after 11 November 2016 by increasing the number of vans or using the words “all involved to be exposed” and “read the full story”. In support of that proposition, it was submitted that Mr MacCallum’s observation of the vans evidenced only his observations and not an objective escalation in the number of the vans. Rather than assisting the appellant’s position, that argument implicitly and presumably unintentionally raises the unsubstantiated possibility that on the day Mr MacCallum observed only two vans, there may in fact have been four vans driving around the CBD. It was submitted that none of the relevant words were added to the vans after 11 November 2016 (the date of the consent orders) and therefore did not represent an escalation, but at most incomplete compliance with the orders.

137    The argument of incomplete compliance cannot prevail in light of the conclusion reached above that the appellant was attempting to get around the orders rather than attempting to comply with them. The conclusion as to escalation was open to the primary judge once regard is had to the substance, rather than the form, of what he did. As such, it was open for his Honour to infer that, on the evidence before him, the number of vans deployed had doubled from two to four. On any view, that was an escalation.

138    Contrary to the appellant’s submissions, his Honour was entitled to regard the appellant’s conduct in tweeting the 28 October 2016 and 31 October 2016 emails as constituting instances of serious contempt of court. On no reasonable reading could they be regarded as having a minimal impact because of the bitterness of the prior dispute. Indeed, in one sense, that history makes the serious nature of the offending even clearer. The appellant was not deterred from making the comments by litigation having commenced in relation to them, but rather sought to continue to make such comments after the proceedings commenced. The written submissions on behalf of the appellant acknowledged that “… reproduction on Twitter could have been considered an indirect attempt to influence Mr MacCallum in relation to his representation of the Respondents generally (31 October 2016 email) and a rude and offensive assertion of imputations of the kind at issue in the principal proceedings (28 October 2016 email)…”. Such a concession, appropriately made, serves to highlight the seriousness of the appellant’s conduct.

139    In the case of charge 8, the fact that the appellant did not desist once the 11 November 2016 consent orders were made entitled the respondents to go back and charge the hitherto uncharged conduct that had been addressed with restraint by the consent orders that the appellant chose to disobey. In the case of charge 9, this conduct took place after consent orders were made to desist doing so. The finding that the conduct changed only in manner and form to avoid a direct and more obvious breach, but also escalated, was also fairly available.

140    This other aspect of ground 13 on sentence must also fail.

Ground 14 – manifest excess

Manifest excess inferred from the result alone

141    Beyond the points of principle and the attempt by the appellant to rely upon the JIRS charts referred to above, the appellant did not make any substantive submission on the topic of manifest excess based on the result alone. No serious attempt was made to identify the basis upon which an error in the exercise of discretion should be inferred. To be fair, that was acknowledged to be an almost impossible exercise given the paucity of true yardstick cases by which to seek to demonstrate error by reason of the result alone. It was not suggested that a custodial sentence of some kind was not warranted, although the duration was said to be much more severe than the conduct called for.

142    Written and oral submissions for the appellant asserted that the sentences were excessive when regard was had to yardsticks said to be provided by “sentences imposed in comparable and more serious cases”, relying on the survey of contempt sentences and principles carried out by members of the Full Court in Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; 276 ALR 596, especially per Gray J at 618-9 [49]-[55]. However, the necessarily limited number and range of those prior cases, and the dissimilarity to the present factual circumstances, meant that the use of those prior results did not provide much real assistance to the present case. The appellant’s sentence appeal did not raise issues that were substantially in common with the live issues arising on the facts and circumstances in Vaysman, or indeed in common with any of the authorities considered in Vaysman, beyond broad concepts of public protection and benefit. Mr Vaysman’s sentence of imprisonment was found to be manifestly excessive because no gaol term at all was considered appropriate for a 74 year old man, with a previously unblemished history, and contraventions that were not considered to be of that degree of seriousness. That was far removed from the present case, both objectively and subjectively.

143    While the sentences imposed were undoubtedly very stern, the primary judge had a wide discretion, and was entitled to treat each charge for which there was a conviction as constituting a serious contempt. His Honour carefully outlined his approach to each sentence. The sentence judgment, when read fairly with the liability judgment, does not give any proper basis to disturb the sentences imposed upon that bare basis, provided that each matter taken into account was properly available for sentence purposes.

144    It follows that there is an insufficient basis for concluding that the result alone supports an inference of error, and therefore this basis for advancing ground 14 alleging manifest excess must fail.

Specific errors alleged

145    Each of the remaining arguments advanced on behalf of the appellant, including those directly concerned with contumacy, may be seen as aspects of his case on manifest excess. They constitute alleged overt errors providing some explanation as to how the asserted manifestly erroneous result was arrived at. To the extent that contumacy was sought to be relied upon by the appellant in aid of a finding of manifest excess, that must fail in light of the conclusions reached above.

Use of bankruptcy status and lack of provision of a statement of affairs

146    For all of the sentences, it was submitted on behalf of the appellant that it was an error to use the fact of his bankruptcy status to diminish evidence of good character, lack of prior convictions and prospects of rehabilitation when there was no evidence as to the circumstances of the appellant’s bankruptcy. By contrast, it was submitted on behalf of the respondents that it was entirely appropriate for the primary judge to take into account the appellant’s failure to file a statement of affairs in his bankruptcy over more than five years and that this was relevant to the submission made on the appellant’s behalf to the effect that he was a person who recognised and respected his legal obligations.

147    The resolution of this issue is achieved by reference to the evidence and principle. As to evidence, it was a matter for the appellant as to whether he wanted to adduce evidence which explained the objective evidence as to non-compliance with bankruptcy obligations. If he wished to qualify or contradict the evidence that he simply had not complied, without any known excuse, he was free to do so, subject of course to any testing by way of cross-examination. He chose not to do so. The primary judge at [19] of the sentence judgment stated “[y]our counsel has admitted you have not filed a statement of affairs in what is now six years since your bankruptcy. There is no evidence of how you support yourself or your means, assets or liabilities.” In those circumstances, the primary judge was entitled, in the application of well-established and longstanding principle, to have regard to that evidence, such as it was without the benefit of any explanation, in order to evaluate the assertion that the appellant’s behaviour was by a person who otherwise met his legal obligations, so as to be able to assert without contradiction that these convictions were out of character: Veen v The Queen (No. 2) (1987) 164 CLR 465 at 477.5. His Honour’s approach discloses no error.

Appellant’s motivation for offending

148    It was submitted on behalf of the appellant that the primary judge erred in not considering that the appellant’s conduct was motivated by real and significant distress on the part of his family, rather than desire for financial gain or an attempt to evade justice. By contrast, it was submitted on behalf of the respondents that there was no evidence to support the assertion that the appellant’s conduct was in some way benign. It was pointed out that the appellant has never made an apology or expressed any remorse for his conduct. In those circumstances, it was submitted on behalf of the respondents that the observations of the primary judge:

(1)    at [27] of the sentence judgment that the regret expressed was as to being found guilty, rather than an apology or any sort of contrition; and

(2)    at [50] of the sentence judgment that the appellant had shown no respect for the orders of the Court and no remorse for his conduct and further no respect for the right of the respondents to litigate their dispute with him and his brother on the merits,

were fairly open to his Honour.

149    The respondents’ submissions should be accepted. The appellant’s anger at perceived injustice and his consequent lack of self-control in the face of both the substantive proceedings and direct orders to desist not only deny the benign characterisation he asserted, but heighten the need for specific and general deterrence. Actions such as this may be driven by anger, self-justification and even vigilante sentiments. This cannot be tolerated if the rule of law, and the role of the courts, is to have a meaningful part to play in maintaining civil society. There was no error on the part of the primary judge on this topic.

Conclusion on asserted specific errors

150    None of the asserted overt errors relied upon by the appellant are compelling. Each of the criticisms made of the primary judge in that regard concerned findings that were fairly open to his Honour. Specifically, his Honour was entitled to form a view as to contumacy and to reach the conclusions that he did on that topic.

151    It follows that none of the specific errors asserted by the appellant assist him in advancing ground 14 alleging manifest excess.

Errors not argued by the appellant relevant to manifest excess

152    It was acknowledged by senior counsel for the appellant at the appeal hearing that it was difficult to make sentence appeal submissions in anticipation of the treatment of conviction appeal arguments. It follows that there cannot be any criticism of the following points not being addressed in a hypothetical way on behalf of the appellant. However the fact remains that this aspect either had to be addressed by the Court on its own initiative, or call for further submissions. The latter was not necessary in all the circumstances.

The effect of the finding in these reasons that the inclusion of order 1 in charges 3 and 5 was an error, albeit not affecting those convictions

153    If, on the facts and on the reasoning of the primary judge, there is a reasonable possibility that his Honour placed reliance upon a breach of order 1 for the purpose of sentence on charges 3 and 5, it would be necessary and appropriate to intervene on that basis alone and to exercise the sentencing discretion afresh in respect of those charges.

154    The conduct proscribed by order 3 was reasonably clear. It was directed to publishing (or distributing) material that had already been published, including any imputation arising from material published on or after 26 October 2016, which was adverse to Mr David in particular ways that were listed, or to similar effect. Order 1 by contrast was not necessarily tied to past representations, although the content of the representations covered was substantially the same, or at least covered similar territory, to order 3. The conduct relied upon for the charges did not rely upon making representations that were new, in the sense of being made for the first time after the 11 November 2016 consent orders were made.

155    The primary judge made no reference to a breach of two orders instead of only one as constituting some kind of aggravation. His Honour instead focused on the underlying conduct. However, in carrying out the necessary instinctive synthesis in arriving at the penalty to be imposed, it is impossible to show that the primary judge did not take into account the alleged breach of order 1, including particulars, and thereby had regard to an irrelevant consideration which may have affected the outcome. Correspondingly, it is impossible to conclude safely that this did not have a discernible impact on the quantum of the sentences arrived at.

The effect of quashing the convictions and sentences for charges 6 and 7 concerning the video

156    For much the same reason as given above in relation to grounds 3 and 5, it is impossible to show that the primary judge did not take into account an irrelevant consideration, namely the video in the particulars for each of those charges. That is especially so as his Honour imposed 2 month sentences for the video offences. It is again impossible to conclude safely that this did not have a discernible impact on the quantum of the sentences arrived at.

Appellate intervention on sentence

157    Given that the sentence for each of charges 3, 5, 8 and 9 has taken place in circumstances in which extraneous or irrelevant matters may reasonably be seen to have guided or affected the sentencing process, this Court in its appellant jurisdiction may exercise its own discretion in substitution for that of the primary judge: see the quote from House v The King reproduced at [108] above, which is of wider application than criminal proceedings. In criminal sentence appeals by the offender, it is the duty of an intermediate appeal court to exercise the sentencing discretion afresh when material error has been established: CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346 at 365 [54]; citing Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 617-9 [42]-[43]. It is only in Crown sentence appeals that an additional hurdle exists of overcoming a residual discretion not to intervene.

158    It is not necessary to decide whether the same duty to intervene exists for criminal contempt appeals by a contemnor as for an offender in criminal proceedings. That is because the nature of the matters erroneously taken into account warrants intervention in this case because of the real chance that they had a material impact on sentences imposed. The sentencing discretion should be exercised afresh in respect of all four remaining convictions.

159    The respondents maintained the submission made below that the circumstances warranted a custodial sentence, but did not then, and did not on appeal, seek to make submissions as to the appropriate duration of the custodial term imposed. That approach was appropriate. It accorded with the respondents’ role being relevantly analogous to a prosecutor in criminal proceedings, at least at the point of sentence, while noting the substantial differences between an opposing party in bringing contempt proceedings as compared to the executive arm of government doing so: Boral at 389 [44]. The quasi-prosecutorial role of the respondents imposes fundamental limits on going further on penalty than assisting a sentencing court to avoid error. That may include submissions as to the type of disposition that is appropriate, such as to whether a custodial sentence was called for and perhaps whether it should include actual incarceration. But it entails refraining from advocating for any particular duration or range of sentence to be imposed: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 71-2 [29]-[33].

Resentencing

160    An important part of the consideration of this topic turns on how the appellant’s conduct is to be characterised. The submissions for the appellant suggested that his conduct should be characterised as being, in effect, an earnest and careful attempt to comply with the orders, it being no legal wrong to engage in even a vigorous and perhaps distasteful exercise of freedom of speech if it lay outside the areas of proscription set by the 11 November 2016 consent orders. That is not a realistic way in which to view the appellant’s conduct, having regard to the conclusions reached above on contumacy. Somewhat akin to the characterisation given by the primary judge, the appellant’s conduct should be characterised as attempting to find a weakness or loophole in the orders and seeking to exploit that, rather than to avoid breaching the orders. The appellant sought to avoid being found to have breached the orders by the artificial device of having the proscribed information on a website to which he directed readers of the text on the vans and readers of the seven tweets of the emails to the SMH journalist. The submissions seeking to downplay the administration of justice contempts have been considered and rejected above.

161    The appellant was legally represented in the two proceedings before the primary judge and in the stay proceedings before Katzmann J. At the liability hearing, the appellant was represented by an experienced senior junior counsel and solicitors. At the sentence and stay hearings, the appellant was represented by (different) senior counsel, (different) junior counsel and (different) solicitors. He entered into the 11 November 2016 consent orders in the form proposed by the respondents. There is little reason to doubt that the respondents would have pressed for the relief they sought had consent not been forthcoming. For clarity, in the appeal, the appellant was represented by the same solicitors and junior counsel that represented him at the sentence and stay hearings, but by a different senior counsel.

162    In all the circumstances, the course of conduct that the appellant engaged in entailed a high risk strategy. If, contrary to the findings of the primary judge, accepted below, the appellant did not in fact know that this course of conduct was forbidden by the orders that he consented to, at the very least the true construction of order 3 is one which should have been in his contemplation: Universal Music at 119-120 [38].

163    The appellant decided to alter in form, but not in substance, what can fairly be described as a vendetta. This vendetta was not confined to Mr Singh, in relation to whom he was not constrained by a court order or by extant litigation, but also against Mr David in relation to whom both restraints existed. The live question as to whether the change in form in the execution of this vendetta was sufficient to evade the operation of order 3 has been answered adversely to the appellant.

164    As the appellant’s senior counsel appearing on his behalf at the appeal pointed out properly and correctly, freedom of speech, although wide ranging, is subject to some legal restraints, including those set by the 11 November 2016 consent orders and those pertaining more widely to the administration of justice. The appellant’s strategy was effective when it came to the “face” of the vans and the “face” of the tweets in that neither on their face breached the orders. Something more was required to breach orders 1, 2 and 4. However the appellant did more than enough to breach order 3, and did so with intention of the kind readily able to be inferred from the available evidence. The appellant chose not to give or adduce evidence to rebut that evidentiary foundation.

165    At the hearing of the appeal, it was not contended on behalf of the respondents that there was any error on the part of the primary judge in dismissing charges 1 and 4 and consequently charge 2. The appellant’s success in the execution of his strategy not to breach order 1 may have been a function of cleverness or good judgment, but given the outcome as to charges 3 and 5 that may be doubted. Rather, the reach of order 3 was broader than the reach of order 1. As the primary judge effectively found, the appellant thought he had found a way to get around the orders, or at least their meaningful enforcement, and did so deliberately and defiantly. Of course, it is not to the point that the appellant may have thought he had found a way to get around the orders or their enforcement. It is not a defence to a criminal contempt in this Court, any more than to a criminal charge, that a party believes their actions were not prohibited or satisfied legal requirements, including those imposed by a court order; such a belief is a mistake of law and is no defence and seldom a mitigation. A respondent cannot escape responsibility by reason of not appreciating the legal consequences of actions taken: Ostrowski v Palmer [2004] HCA 30; 218 CLR 493 per McHugh J at 508 [28], 511 [41], 513 [46]; see also Gleeson CJ at 500 [1]. It is worth noting that the offence in Ostrowski was one of strict liability.

166    Unlike Mr Palmer in Ostrowski, the appellant was no hapless rock lobster fisherman, erroneously led to believe by incomplete information provided by a fisheries officer that fishing in a particular area was legal when it was not. It is plain that the terms of the orders were brought to the appellant’s attention and that he had an opportunity to discuss them with his solicitor and apparently had communicated to him some understanding of the orders he had consented to via his counsel. There is no evidence as to what precisely he was told, or what his basis might have been for behaving as he did. He gave and called no evidence to enlighten the Court at trial. He did not seek to adduce any further evidence in the event of resentence. What matters is that he must have decided to take the risk, so determined he was to continue on his course. In any event, the finding that the appellant’s breaches were contumacious has been upheld.

167    When it comes to manifest excess as a basis for inferring error, the original sentence was undoubtedly stern. But stern sentences were called for, even absent the irrelevant considerations arising from the reasoning in relation to the conviction appeal. The breaches of order 3 manifested in the convictions on charges 3 and 5 were extremely serious. They were defiant, albeit by the device of seeking to exploit an apparently perceived loophole or weakness in the orders the appellant had consented to. There was no evidence to suggest the appellant even accepts that there was anything wrong with what he did, let alone anything to suggest contrition or remorse. The only regret communicated on his behalf by his senior counsel at the sentence hearing was that of having been convicted. That may fairly be described as the wrong kind of sorry.

168    In the circumstances of this case, deterrence looms large in relation to both the aspect dealing with defiance of the Court’s orders and in relation to what might conveniently be described as interference with the administration of justice. A conspicuous aspect of the appellant’s conduct is that it was carefully planned – especially the signwriting on the four vans which must have taken planning, time and expense – and executed over a number of days. There was ample opportunity for the appellant to evaluate and to desist, especially once the 11 November 2016 consent orders were made, rather than persist and escalate. The need for specific and general deterrence was, and now is, a substantial consideration. It loomed large in three discernible respects.

169    First, there is a compelling need for specific deterrence of the appellant himself. The trial of the substantive proceedings brought by the respondents against the appellant and his brother, Charif Kazal, is still to take place. The matters to be litigated in that case cover much the same, if not identical, territory to that which is the subject of the adverse information about Mr David. The appellant published in defiance of court orders as well as adversely to those proceedings more generally as reflected in charges 8 and 9. The appellant must be left in no doubt as to the consequences of any repetition on his part, especially in the face of no evidence that he accepts any wrongdoing on his part. He is therefore necessarily at least at some risk of reoffending.

170    Secondly, perhaps somewhat unusually, there is a more immediate, or more specific than usual, form of general deterrence required in this case, especially having regard to the need for the conduct of the substantive proceedings to take place free of improper influences. That relates to the appellant’s immediate family members, his extended family, and his friends, colleagues, associates, supporters, and, given the deployment of the vans, employees, contractors or agents, especially those with specific knowledge or even general knowledge of his grievances. They need to be deterred from doing anything of the kind that he has done, albeit that it would be in the administration of justice sense covered by charges 8 and 9, rather than in direct defiance of court orders unless any such individual was joined to the substantive proceedings or was otherwise restrained by court order. The appellant’s brother, Charif, is a respondent in the substantive proceedings, but the 11 November 2016 consent orders do not apply to him.

171    Thirdly, general deterrence of contempt of both kinds, that is by way of defiance of court orders and by interference in the administration of justice, is of considerable importance. All three areas of deterrence now have to be considered in the age of instant and widespread communication to potentially vast numbers of people via social media. In seconds, great harm can be done of a kind unimaginable when most of the authorities on this topic were decided. That is a feature of modern life that is of increasing, not decreasing, importance.

172    Courts must adapt if they, the orders they make, and the system of justice for which they have an important responsibility to administer, are to avoid being rendered impotent. It is no longer a world in which contempt is confined to proximate physical action or evanescent communication, with some delay and time to react and contain the damage before it spreads too far. Contempt can very rapidly travel far and wide, both within Australia and overseas, and be of lasting and ongoing impact. Sentences that might in the past have been regarded as the top end of any discernible range and stern to the point of being excessive and even manifestly excessive no longer so readily bear that character.

173    A further feature of the appellant’s particular contempt offences is that which pertains to acting in combination with others and the potential to act in combination with others, especially in defiance of orders of the Court and the Court’s authority. In this case that involved the appellant’s deployment of four vans with drivers and the appellant’s use of Twitter to reach his some 25,000 followers, which so readily facilitates reaching a much wider audience, much more quickly. There is an unknown level of re-tweeting in circumstances such as this. If such behaviour is to be deterred in current and future cases, condign punishment is required.

174    While the original sentences were undoubtedly very stern and perhaps at the higher end of a range than might have applied in the past, each of the sentences for the convictions that have survived appeal would have been within the range that was properly available to the primary judge but for the fact of taking into account features that were not available by reason of the conclusions reached on the conviction appeal. That is especially so when consideration needs to be given to the breadth of the sentencing discretion available to judges in the future for any still serious contempt which is less serious than in this case. It follows that some weight can be placed on the conclusions reached by the primary judge, with a measure of reasonable adjustment and the fresh and independent exercise of the sentencing discretion for each charge.

175    Having regard to the list of considerations suggested by Matthews, the following conclusions are available in relation to each:

(1)    the seriousness of the contempt proved – for the reasons outlined below, each of the four charges reflected serious instances of contempt;

(2)    the contemnor’s culpability – the appellant’s culpability was high for each charge;

(3)    the reason or motive for the contempt – the appellant had no acceptable motive for his behaviour and none that mitigated his conduct in any way;

(4)    whether the contemnor has received, or sought to receive, a benefit or gain from the contempt – the appellant did not receive any financial benefit, but it may be inferred that he sought to benefit in a personal satisfaction sense from blackening the respondents’ names, and in particular the name of Mr David, in the further publishing of the grievances that he held; if he had succeeded in having the respondents abandon the case against him by reason of the pressure he brought to bear, that would have been a real and tangible benefit with substantial financial consequences;

(5)    whether there has been any expression of genuine contrition by the contemnor – there has been no genuine expression of contrition by the appellant for what he did, nor any indication that he will desist in the future, nor even that he considers that he has done anything wrong, as opposed to mere regret that what he did was found to constitute contempt of court – he is sorry he has been prosecuted and convicted; he is doubtless sorry he has been sentenced; but there is no evidence he in any way resiles from the substance of what he has done;

(6)    the character and antecedents of the contemnor – the conduct cannot be seen to be wholly out of character, but he has no prior convictions to the knowledge of the Court;

(7)    the contemnor’s personal circumstances – there is nothing remarkable about the appellant’s personal circumstances;

(8)    the need for deterrence of the contemnor and others of like mind from similar disobedience – the need for deterrence, both specific and general, is substantial, as detailed above and by the conclusions above at (5) as to the absence of any demonstrated contrition; and

(9)    the need for denunciation of contemptuous conduct – conduct of this kind must be denounced, but very much in aid of deterrence.

176    It is necessary to consider what the sentences should be in light of the above, in the absence of the irrelevant considerations, and in the fresh exercise of discretion. The following focuses on the nature of the conduct, to be read in the context of the foregoing to arrive at the sentences for each charge upon which the appellant has been convicted, and the convictions upheld.

Charge 3

177    Publishing the website posts via the use of four vans driven around the Sydney CBD emblazoned with the Family Website URL and clear, evocative and salacious encouragement to visit that website to “read how the thief robbed his partners” and “read the full story”, and doing so after consenting to orders to desist from any such act of publishing was a direct defiance of the Court’s orders, even if the appellant thought he could get around the restriction or its enforcement. It was conduct that cannot be allowed to be repeated by the appellant, or by anyone associated with him. For the reasons outlined above, the need for specific deterrence looms large, especially when there remains no indication that the appellant personally sees anything wrong with what he has done. General deterrence is just as significant and important.

178    This a very serious example of contempt in relation to orders made by the Court in terms of the extreme nature of the conduct, even though a direct statement of deliberate defiance was absent. In that regard, the Court notes that the phrase “worst category” is no longer to be used for determining or indicating whether the maximum statutory penalty is appropriate, following R v Kilic [2016] HCA 48; 339 ALR 229 at 234-5 [17]-[20]. That phrase is therefore better not used in this context either for much the same reasons. That doubtless worse conduct can be envisaged in any event does not deny the extent of its seriousness. It is to be hoped that such conduct will not be seen again.

179    The sentence will only have the necessary sting to deter the appellant and others minded to emulate him if it is of sufficient length to have that effect. Even then that may not be enough given the appellant’s evident attitude. In all the circumstances, the conviction on charge 3 warrants a 9 month term of imprisonment. This sentence reflects a sizable but proportionate reduction from the original sentence of 15 months imposed by the primary judge. Had the conduct not been brought to an abrupt halt by the respondents very promptly bringing the contempt charges, a longer sentence could well have been required.

Charge 5

180    Publishing the website posts via the seven tweets of the emails that the appellant sent to the SMH journalist is the least serious of the four charges upon which the appellant’s conviction must stand and for which he must be resentenced. It was still a concerted and repeated effort to evade the operation of order 3, and was to that extent deliberate and defiant. The posting of the tweets took place over six separate days, on 15, 16, 17, 18, 19 and 20 November 2016. It was contumacious. It is not conduct that can be tolerated. But it is considerably less serious than the four vans. The primary judge recognised that distinction by imposing a sentence that was shorter for the seven tweets than for the four vans. A material difference between the two sentences was appropriate and should be maintained.

181    Taking into account all of the facts and circumstances, a meaningful custodial sentence is required. The conduct may be seen to be somewhat less serious than the vans, in that the encouragement to visit the Family Website in the emails was less blunt and less evocative. The vans inherently were a more persuasive medium, even if the tweets were more immediate to the appellant’s 25,000 or so followers.

182    The appropriate sentence is 6 months imprisonment (reduced from 9 months), wholly concurrent with the sentence imposed in respect of charge 3 to reflect that this was a different facet of the same course of conduct.

Charge 8

183    The 28 October 2016 and 31 October 2016 emails sent by the appellant to Mr David and to his solicitor, Mr MacCallum, were of themselves conduct to be deplored, and plainly, by the words used, were intended to harass and threaten. A substantial sum of money was demanded to be paid by the respondents, in circumstances in which the natural person second respondent, Mr David, is unavoidably going to be a witness in, as well as a party to, the substantive proceedings. Tweeting those emails the same day that they were sent and thereby making them immediately available to the public, being the real core and gravamen of the conduct, took the original content of the emails to an entirely new level, bringing much greater pressure to bear on the respondents and Mr David in particular.

184    The comments made in the emails were extreme and were, on their face, expressly intended, or at least inevitably and unavoidably had the effect of, affecting and adversely influencing the respondents. In context, a vitally important aspect of that effect and influence unavoidably concerned the substantive proceedings. It is not to the point that a judge would stand above that behaviour and not be influenced in the manner that a jury might. If left unchecked, such conduct would be in danger of becoming prevalent, rather than rare. Trial by internet and social media is a vice at least equal to, and in these circumstances going beyond that, of trial by media, especially as there is no media proprietor to restrain, to encourage the assessment of consequences or to be made subject to direct remedies.

185    The only saving grace for the appellant in respect of sentence is that the respondents charged for the limited period between 31 October 2016, the date that the second email was sent and tweeted, until the date of the 11 November 2016 consent orders. This was still shocking and unacceptable behaviour. It was as serious as the seven tweets of the emails to the SMH journalist because, although each was a single tweet, it went beyond inducing the reading of the proscribed material to the next level of serious threats and personal vilification. However, it remained less serious than the vans. Once again, the facts and circumstances demanded a substantial custodial sentence. The appropriate sentence is 6 months imprisonment, reduced from 12 months. The question of whether this sentence should be served concurrently with the other sentences is dealt with below in the context of charge 9.

Charge 9

186    Charge 9 is undoubtedly the most serious. The comments made above in relation to charge 8 also apply to this charge, and more besides. It entails several different aspects, being publishing, after the 11 November 2016 consent orders were made and as relevant to the substantive proceedings rather than those orders per se:

(1)    the website posts via the seven tweets (of the emails the appellant sent to the SMH journalist);

(2)    publishing the website posts via the four vans driven around the Sydney CBD; and

(3)    the tweeted emails sent to Mr David and to Mr MacCallum on 28 October 2016 and 31 October 2016.

187    In relation to the October emails, it was a continuation of the conduct upon which charge 8 was based past the date of the consent orders. The appellant was squarely on notice as to how seriously the respondents and the Court took his behaviour. Yet he not only persisted but escalated the conduct.

188    In relation to the publishing of the website posts via the seven tweets of the emails to the SMH journalist and via the four vans, the conduct goes beyond defiance of the Court’s express orders and reflects a deliberate attempt to bring grossly improper influence to bear on the substantive proceedings. This charge is important because it is not confined by the 11 November 2016 consent orders and is protective of the Court’s jurisdiction and authority. The form of the charge was not confined to the appellant as a litigant, insofar as other individuals making similar public statements to those particularised may also be charged with an identical offence. A failure to take such conduct extremely seriously, and to impose a sanction proportionate to the vice sought to be addressed would be to condone or at least downplay the conduct, rather than to condemn it. It would tend to encourage or at least fail to discourage, rather than to actively deter both the appellant and others.

189    This is also a very serious example of contempt in the aspect pertaining to the administration of justice. Again, doubtless worse conduct can be envisaged, for which even more severe sentences may one day be required. The sentence will only deter the appellant and others minded to emulate him if it is a clarion call that such behaviour will not be tolerated. In all the circumstances it is more serious than charge 3 involving the vans. It warrants a 12 month term of imprisonment, reduced from 18 months.

190    The sentence for charge 9 should be served wholly concurrently with the sentence imposed in respect of charge 8, reflecting the single course of conduct involved in those two charges. However, while charges 8 and 9 do involve, to a certain extent, the same conduct as the conduct the subject of charges 3 and 5, the appellant’s state of mind and the criminality involved in charges 8 and 9 is different. Whereas charges 3 and 5 concerned the appellant’s wilful disobedience of court orders, charges 8 and 9 concern the appellant’s deliberate attempt to bring improper pressure to bear on the respondents in respect of the substantive proceedings. For that reason, it would be appropriate for the sentences in respect of charges 8 and 9 to be served partly cumulatively to the sentences imposed in respect of charges 3 and 5. An appropriate period of accumulation would be 3 months. That will be achieved by ordering that the sentences for charges 8 and 9 commence 3 months after the sentences for charges 3 and 5.

Conclusion on sentence appeal

191    Each of the arguments advanced on behalf of the appellant in support of his sentence appeal grounds should fail. However, the aspect of ground 14 pertaining to manifest excess should succeed by reason of irrelevant material being taken into account consequent upon the reasoning above on the conviction appeal. As a result, the sentences for the convictions on charges 3, 5, 8 and 9 should be varied as follows, in order of severity:

Costs

192    A common consequence of success by a person bringing contempt proceedings is an indemnity costs order. Katzmann J in Kazal v Thunder Studios Inc (California) [2017] FCA 238 at [90] helpfully referred to Connect TV Pty Ltd v All Rounder Investments Pty Ltd (No 4) [2013] FCA 393 at [43] per Tracey J, and Infa-Secure Pty Ltd v Crocker (No 2) [2016] FCA 202; 338 ALR 586 at 600 [44] per Reeves J. Her Honour observed that in Victoria and in Queensland it seems to be the “common or usual practice” to award indemnity costs in contempt cases, referring to Deputy Commissioner of Taxation v Gashi (No 3) [2011] VSC 448; 85 ATR 262 at 270-1 [20] per Dixon J and the abovementioned case of Infa-Secure.

193    Katzmann J also pointed out that in National Australia Bank Ltd v Juric (No 2) [2001] VSC 398 at [70] Gillard J explained:

[I]t has been recognised for many, many years in contempt cases, that a litigant who must come to court in order to enforce an order which has been breached by contempt, or to have a person dealt with [for] contempt, should not be out of pocket.

194    Katzmann J pointed out that Moore J took a different view in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2003] FCAFC 13; 196 ALR 350 at [6], based on a number of cases in this Court. Moore J observed (emphasis added by Katzmann J):

There has been limited judicial consideration of what principles (if any) govern the ordering of indemnity costs in contempt cases. It is at least clear, following McIntyre v Perkes (1988) 15 NSWLR 417 (see Samuels JA at 424–8 and Rodgers AJA at 434–6) (which involved a comprehensive review of the authorities including some suggesting the existence of a rule), that there is no general principle or rule of law in contempt cases that a successful applicant or successful prosecutor is routinely awarded costs on an indemnity basis: see also to the same effect in this court, Adlam v Noack [1999] FCA 1606; BC9907694 per Mansfield J at [29], LED Builders Pty Ltd v Eagle Homes Pty Ltd [1999] FCA 1213; BC9905513 per Lindgren J at [64]–[65]. Indeed as is the conventional practice in most cases, costs are routinely awarded in contempt cases on a party and party basis. In McIntyre v Perkes (1988) 15 NSWLR 417 Samuels JA (at 424 and 428) relevantly said:

The respondent, however, submitted that the judge had erred in failing to apply “the normal rule which in cases where an intentional contempt of Court is proved on an application by a private prosecutor is for costs to be ordered on a basis calculated substantially to indemnify the prosecutor”. …

In my opinion this survey, no doubt not exhaustive but reasonably extensive, of the textbooks and cases does not reveal any rule of law or any established practice binding upon the judge in this case and requiring him to make one of the orders for which the respondent contended.

195    There is no doubt that this Court has a discretion to award indemnity costs to a party bringing contempt proceedings. In many contempt cases there will be powerful discretionary considerations favouring the award of indemnity costs. If there is a variable practice in that regard, this is a case falling within the category for which an indemnity costs order would be entirely appropriate. No express reason was advanced in this case for departing from the at least common approach of awarding costs on an indemnity basis. That may be because the appellant is an undischarged bankrupt, rendering any enforcement of a costs order nugatory.

196    The appellant has achieved a measure of success in having the convictions on charges 6 and 7 quashed, and thereby also the sentences. However, charges 6 and 7 were a relatively small part of the case overall. The respondents were entitled to proceed upon the basis that the appellant would only consent to an order that he cease to publish the video if he had the capacity to comply. They were entitled to assume that he would make every attempt to comply with the order that he had consented to and that he would either remove it or cause it to be removed. He succeeded on his conviction appeal because it could not be proved that his consent was not falsely given, such that the possibility could not be excluded that he did not in fact have that control and thus that capacity.

197    None of the remaining conviction grounds of appeal have succeeded. Nor did any of the arguments advanced by the appellant on sentence prevail. The sentences were adjusted by reason of the Court’s own reasoning, unaided by submissions for the appellant. In all the circumstances, the costs orders made by the primary judge should not be disturbed.

198    In all the circumstances, the appellant should pay the respondents’ costs of this appeal on an indemnity basis.

Associate:

Dated:    31 July 2017