Federal Court of Australia
Ferguson v Dallow (No 3) [2021] FCA 177
ORDERS
MICHAEL DARREL JOSEPH FERGUSON Applicant | ||
AND: | First Respondent GOOGLE INC (ABN 34 118 972 998) Second Respondent | |
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. Kane Scott Dallow is guilty of contempt of court, in that, having been personally served on 2 December 2020 with the applicant’s amended originating application, orders made by Kerr J on 2 December 2020 (2 December orders), and the court’s reasons for making the 2 December orders, such orders containing in order 2 a requirement that he be restrained from publishing, republishing, distributing, disseminating or making available for viewing:
(a) the video entitled “Behind the Classroom Door” (first video) published on the website www.tasnews24.tv (website) and on the online platform www.youtube.com (YouTube);
(b) the video entitled “Update Behind the Classroom Door” (second video) published on the website and YouTube; and
(c) the allegations made against the applicant in the first and second videos
for a period of 7 days commencing immediately upon the applicant’s amended originating application, the 2 December orders and the court’s reasons having been served upon him (the period), he intentionally disobeyed the 2 December orders by publishing within the period, namely on or about 7 December 2020, a video entitled “Legal Update” (third video) on the website and YouTube, such third video publishing, republishing, distributing, disseminating or making available for viewing the allegations made against the applicant in the first and second videos.
2. Kane Scott Dallow is guilty of contempt of court, in that having been present in the Federal Court of Australia at Hobart on 9 December 2020 at approximately 5:30 pm Australian Eastern Daylight Savings Time when White J pronounced orders via audio-visual link from the Federal Court of Australia at Adelaide (9 December orders), such orders including that he be forthwith restrained until 5:00 pm on 21 December 2020 from publishing, republishing, distributing, disseminating or making available for viewing:
(a) the first video published on the website and YouTube;
(b) the second video published on the website and YouTube;
(c) the third video published on the website and YouTube; and
(d) the allegations made against the applicant in the first, second and third videos whether in the form of those videos or otherwise, and whether directly or indirectly (order A);
and for the purposes of order A, was ordered to remove the third video from the website and YouTube within two hours of the order or as soon thereafter as was reasonably possible (order B), he intentionally disobeyed order B by failing to remove the third video from YouTube within two hours of the 9 December orders having been made.
THE COURT ORDERS THAT:
3. The hearing of the interlocutory applications dated 8 and 18 December 2020 be held over for a hearing on penalty and costs on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
O’CALLAGHAN J:
Introduction
1 The applicant is the Leader of the House of Assembly of the Parliament of Tasmania and a Minister of the Crown.
2 Mr Dallow, who is the first respondent, holds himself out as a journalist and operates a website called “TAS News 24”.
3 By interlocutory applications in this proceeding dated 8 and 18 December 2020, the applicant seeks declarations that Mr Dallow is guilty of two contempts of this court for intentionally disobeying orders made by it.
4 In the underlying proceeding, the applicant claims injunctive relief and damages. His claim is, principally, a claim for defamation.
5 The second respondent has not been served, and the applicant recently filed a notice of discontinuance of his claim against it.
6 The underlying proceeding is allocated to the docket of White J. Since the hearing of the contempt charges, Mr Dallow has consented to judgment on the applicant’s claim. See Ferguson v Dallow (No 2) [2021] FCA 152. Justice White, relevantly, made the following orders:
1. The First Respondent be restrained permanently from publishing, republishing, distributing, disseminating or making available for viewing:
(a) the video entitled ‘Behind the Classroom Door’ (the First Video) published on the website, www.tasnews24.tv (the Website) and on the online platform, www.youtube.com (YouTube).
(b) the video entitled ‘Update Behind the Classroom Door’ (the Second Video) published on the Website and YouTube.
(c) the video entitled ‘Legal Update’ (the Third Video) published on the Website and YouTube.
(d) the allegations made against the applicant in the First Video, the Second Video or the Third Video, whether in the form of those videos or otherwise, and whether directly or indirectly.
2. The Applicant recover against the First Respondent, damages to be assessed on the defamation causes of action.
7 The first charge of contempt alleges disobedience of an order made by Kerr J on 2 December 2020.
8 The second charge alleges disobedience of an order made by White J on 9 December 2020.
9 At the hearing before me on 4 and 5 February 2021, Mr C Gunson SC appeared with Ms JE Sawyer for the applicant. Mr Dallow was self-represented. He pleaded not guilty to both charges.
10 The parties agreed on the morning of the second day of the hearing that the court should at this stage hear evidence and submissions only on the question of whether the charges are proved.
11 For the reasons that follow, I find Mr Dallow guilty of two contempts.
12 The applications will accordingly be re-listed for a penalty hearing.
The evidence about the alleged contempts
13 The applicant relied upon:
(1) The interlocutory applications dated 8 and 18 December 2020.
(2) Two statements of charge dated 8 and 18 December 2020.
(3) An affidavit of Mr Brett Cassidy, a principal of Page Seager (the firm of solicitors acting for the applicant), sworn 22 December 2020. Mr Cassidy deposes to Mr Dallow’s publication and removal of the online videos the subject of the charges, and to correspondence between his firm and Mr Dallow regarding the videos. He also deposes to the content of the videos, and annexes electronic copies (stored on USB drives) and transcripts of them.
(4) An affidavit of Mr Kyle Dolbey, a solicitor employed by Page Seager, sworn 21 December 2020. Mr Dolbey deposes to having accessed Mr Dallow’s website, YouTube and Twitter pages at various times and describes, including with screenshots, the material that was then publicly available on those pages.
(5) An affidavit of Ms Anna Di Carlo, another solicitor employed by Page Seager, sworn 21 December 2020. Ms Di Carlo deposes to what she saw on Mr Dallow’s website and YouTube channel at various times.
(6) An affidavit of Mr Adrian Medwin, a process server, sworn 3 December 2020. Mr Medwin deposes that on the evening of 2 December 2020 he served Mr Dallow with Kerr J’s orders made earlier that day, the court’s reasons for making those orders, and the applicant’s amended originating application, among other documents.
(7) Five affidavits of Ms Leanne Johnson, a process server, sworn 7, 18 and 23 December 2020, and 11 and 22 January 2021. Ms Johnson deposes to serving various documents on Mr Dallow, including (on 7 December 2020) the statement of claim filed in this proceeding, and (on 23 December 2020) the two contempt applications and statements of charge.
14 Mr Dallow gave oral evidence in his defence. He filed, but did not refer to or rely upon, an affidavit that he swore on 1 February 2021. I have read the affidavit, but its relevance to the two charges is unclear. Given that, and that Mr Dallow did not refer to it, I have put it to one side.
The applicant’s evidence
15 The evidence contained in the affidavits relied upon by the applicant can be summarised as follows.
16 On 29 November 2020, Mr Dallow uploaded a video to YouTube and his website (the first video). The video contained a purported interview between him and an anonymous woman, who made serious allegations against the applicant. Mr Dallow also published two emails on his website around the same time. The first was an email that he had sent to the Premier of Tasmania about the allegations against the applicant in the first video. The second was the response he received from the Premier’s office.
17 On 1 December 2020, YouTube “geo-blocked” the first video in Australia, meaning that it was no longer possible for viewers in Australia to watch the video on YouTube (at least, not without a virtual private network or something similar). The video remained accessible on Mr Dallow’s website.
18 Later that day, Mr Dallow released a second video on YouTube, and on his website (the second video). It was said to be an “update” to the first video. In it, Mr Dallow repeated the allegations made in the first video. He also said that he would be conducting further interviews and presenting additional allegations in the future. He later posted a tweet that promoted the first and second videos, referred to the allegations they contained, and included a link to his website where the videos were available for viewing.
19 On 2 December, following an ex parte hearing, Kerr J granted the applicant an interim injunction in the following terms:
(2) Upon the usual undertaking of the Applicant by his counsel and his further undertaking that by no later than 4:00pm on 8 December 2020 he will file a Statement of Claim and will serve that Statement of Claim on the First Respondent immediately upon the First Respondent providing an address for service, the First Respondent be restrained from publishing, republishing, distributing, disseminating or making available for viewing:
(a) the video entitled ‘Behind the Classroom Door’ (First Video) published on the website www.tasnews24.tv (Website) and on the online platform www.youtube.com (YouTube);
(b) the video entitled ‘Update Behind the Classroom Door’ (Second Video) published on the Website and YouTube; and
(c) the allegations made against the Applicant in the First and Second Videos
for a period of 7 days commencing immediately upon the Applicant’s amended Originating Application, these Orders and the Court’s reasons having been served upon him (the Period).
(3) For the purposes of Order 2, the First Respondent shall remove both the First Video and the Second Video from the Website and YouTube within two hours of these Orders having been served upon him or, if the First Respondent cannot comply in that timeframe after making all reasonable efforts, he must remove both Videos from the Website and YouTube as soon thereafter as he is reasonably able to and ensure that neither can be accessed by such means during the Period.
20 These orders were served on Mr Dallow at 7:10 pm that evening, along with Kerr J’s reasons for making them and the applicant’s amended originating application. The orders were endorsed with a penal notice, which stated:
TO: KANE DALLOW
IF YOU (BEING THE PERSON BOUND BY THESE ORDERS):
REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THESE ORDERS FOR THE DOING OF THE ACT; OR
DISOBEY THESE ORDERS BY DOING AN ACT WHICH THESE ORDERS REQUIRE YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THESE ORDER [sic] AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THESE ORDERS MAY BE SIMILARLY PUNISHED.
21 By 10:00 pm that night, the first and second videos were no longer available on YouTube or Mr Dallow’s website. However, Mr Dallow’s tweet promoting the videos was still available, as were the emails to and from the Premier’s office. Further, he had posted a second tweet that repeated the allegations.
22 At 11:10 pm, Mr Cassidy sent Mr Dallow an email, demanding that he remove the two tweets and the two emails. The email stated that those publications were in breach of order 2(c) of Kerr J’s orders, and emphasised that compliance with those orders was a serious matter.
23 The next morning, the tweets and the email to the Premier had been removed, but the response from the Premier’s office was still available. Mr Dallow said in an email to Mr Cassidy that the correspondence had been, as he put it, “condensed to acceptable viewing”. Mr Cassidy replied, insisting that Mr Dallow was continuing to breach order 2(c) by failing to remove the remaining email. He also reiterated the seriousness of breaching court orders. Shortly thereafter, the remaining email was removed.
24 A few days later, on 7 December, Mr Dallow published a further video entitled “Legal Update” on YouTube and on his website (the third video). In it, Mr Dallow delivered a monologue to the camera, in the style of a TV presenter.
25 A transcript of each of the three videos appears as Confidential Annexure A to these reasons. That annexure is to remain confidential to the parties. It is necessary to include the transcript of the first and second videos in order to explain (as I do below) why the third video constitutes publishing, republishing, distributing, disseminating or making available for viewing the allegations made against the applicant in the first and second videos. I should also add that the videos, stored on USB drives, were played in (closed) court and were admitted into evidence as confidential exhibits.
26 I have taken the precaution of making the transcripts of the videos confidential because the allegations, as Mr Dallow conceded in his evidence, are very serious. Further, as a result of the entry of judgment against him in the underlying proceeding, the applicant’s allegations that the videos are defamatory of the applicant are now deemed to be admitted. See Ferguson v Dallow (No 2) [2021] FCA 152 at [7] (White J).
27 For the same reasons, when I turn to consider the content of the third video, and whether its publication breached the terms of the order made by Kerr J, I shall make that part of these reasons confidential to the parties.
28 Returning to the facts, around the time that he released the third video, Mr Dallow also published two documents on his website: a letter that Mr Cassidy had sent to him on 4 December, and a copy of Kerr J’s 2 December orders.
29 On the evening of 7 December, Mr Cassidy sent Mr Dallow an email stating that the publication of the third video, the letter and the 2 December orders was in breach of order 2(c), and demanding that they be removed immediately. His demands were ignored.
30 On 9 December, the applicant filed his interlocutory application dated 8 December 2020 for an order that Mr Dallow be found guilty of contempt of court. The statement of charge attached to the application relevantly reads as follows:
1. Intentional disobedience of Orders made by the Honourable Justice Kerr on 2 December 2020.
Particulars:
Having been personally served on 2 December 2020 with the Applicant’s amended Originating Application, Orders made by the Honourable Justice Kerr on 2 December 2020 (Orders), and the Court’s reasons for making the Orders, such Orders containing in Order 2 a requirement that you ‘be restrained from publishing, republishing, distributing, disseminating or making available for viewing:
(a) the video entitled ‘Behind the Classroom Door’ (First Video) published on the website www.tasnews24.tv (Website) and on the online platform www.youtube.com (YouTube);
(b) the video entitled ‘Update Behind the Classroom Door’ (Second Video) published on the Website and YouTube; and
(c) the allegations made against the Applicant in the First and Second Videos
for a period of 7 days commencing immediately upon the Applicant’s amended Originating Application, these Orders and the Court’s reasons having been served upon [you] (the Period)’, you intentionally disobeyed the Orders by publishing within the Period, namely on or about 7 December 2020, a video entitled ‘Legal Update’ (Third Video) on the Website and YouTube, such Third Video publishing, republishing, distributing, disseminating or making available for viewing the allegations made against the Applicant in the First and Second Videos.
31 At 4:30 pm on 9 December 2020, the proceeding came before White J for the hearing of an application by the applicant for an interlocutory injunction (effectively to maintain the effect of Kerr J’s 2 December orders). The applicant’s counsel (Mr Gunson SC) and Mr Dallow appeared in Hobart. White J presided via video link from Adelaide.
32 After ascertaining that Mr Dallow intended to retain lawyers, and that he would require some time in which to do so, White J raised the possibility of an adjournment and an extension of Kerr J’s interim orders by consent:
HIS HONOUR: Right. Well, it’s a question for you especially, I think. Would you like the court to adjourn the hearing of the interlocutory injunction application until you’ve had the chance to get legal representation?
MR DALLOW: Yes. I would, your Honour.
HIS HONOUR: So, in effect, you’re asking me to adjourn this afternoon’s hearing?
MR DALLOW: Yes. I would, your Honour.
HIS HONOUR: For that purpose?
MR DALLOW: Yes, your Honour.
HIS HONOUR: Right. And so if I do adjourn, what’s your attitude to the court granting – I think I would express it as a further interim injunction, pending – or during the adjournment period, so that the status quo, as pertains right now, would continue until the interlocutory injunction can be heard?
MR DALLOW: Yes, your Honour.
HIS HONOUR: What – sorry. My question was, what was your attitude. Do you agree to that, or you oppose it?
MR DALLOW: I would agree to that, your Honour. Yes.
33 Once it was agreed that Kerr J’s orders would be extended on an interim basis, the following exchanges took place about how the new orders should be modified to deal with the fact that the third video had been published on YouTube and Mr Dallow’s website since Kerr J made his orders:
MR GUNSON: … in the last couple of days, a third video has been put up on both the Tas News website and the YouTube channel, entitled Legal Update …
We would propose that a further restraint – actually, it might be easiest, your Honour, if I could ask if your Honour has the order of his Honour, Kerr J, of 2 December in front of you. It might be easier to work through that.
HIS HONOUR: I do. Yes.
MR GUNSON: What we would propose is that there be a new order 2C, and the words, ‘the video entitled “Legal Update” (third video) published on the website and YouTube’.
HIS HONOUR: So these words … go in after the words (second video)?
MR GUNSON: No. Create a new subparagraph C.
HIS HONOUR: Yes.
MR GUNSON: And then, add the words, ‘the video entitled “Legal Update” (third video) published on the website and YouTube’. And then, the existing paragraph C would be subparagraph D. And in the preliminary part to that order 2, on the first line, the words ‘and his further undertaking’ through until a couple of lines down, ‘address for service’, should be deleted, because the statement of claim has been filed, and although a notice of address for service has not been filed, we have, in fact, served the statement of claim.
HIS HONOUR: Yes. All right. You keep going.
MR GUNSON: Yes. And then, over the page, in order 3, delete the word ‘both’, substitute the word ‘first’ for ‘third’, and delete the words ‘and the second video’ because Mr Dallow has, in fact, removed those. We just need to get the third one down.
HIS HONOUR: Yes.
…
And can – I’m going to come back to you in a moment, Mr Dallow, so don’t worry that all this is going on just between Mr Gunson and me.
Can I just direct your attention to what would be the subpara D in the form of the injunction which you were proposing?
MR GUNSON: Yes.
HIS HONOUR: You’re content with the reference in subpara D to the first and second videos only?
MR GUNSON: Out of an abundance of caution, it should probably include – and the third video, because the third video makes reference to the allegations in the first and second …
…
HIS HONOUR: And I actually wondered to myself whether it might be better, from your client’s perspective, for that to be made express by saying something like this: the allegations made against the applicant in the first, second and third videos, whether in the form of those videos, or otherwise, and whether directly or indirectly.
MR GUNSON: Yes. I think those words would be appropriate, and it’s also – again, it’s fairer to Mr Dallow in the sense that it makes it perfectly clear what the expectations are in relation to the restraints that have been made.
HIS HONOUR: All right. Perhaps I can hear from Mr Dallow now … I would like to talk to Mr Dallow about the terms of the injunction, which he has indicated consent to, at least in principle.
…
HIS HONOUR: Now, Mr Dallow, I'm just not sure to what extent you were noting these changes suggested by Mr Gunson and me in the discussion, so what he’s proposing is that there be a new subparagraph C in the order number 2, made by Kerr J on 2 December, which would read, ‘The video entitled Legal Update (third video) published on the website and YouTube’, and then, the existing C becomes a new sub D, which would be varied slightly so that it will read, ‘The allegations made against the applicant in the first, second and third videos, whether in the form of those videos or otherwise, and whether directly or indirectly’. So do you have any difficulty with those amendments to the order, or the form of the injunction made by Kerr J?
MR DALLOW: Well, your Honour, I would like to reflect on, well, address the third video, as to why that would be needing to be incorporated in the video – the first video and the second video, when they’re – the third video is not defamatory on any level whatsoever. It was an explanation of what was going on, and it – and what was mentioned in the video was actually on public record anyway.
HIS HONOUR: All right. So Mr Gunson, it was me that asked you whether you needed to include the third video there. I wasn’t pressing that. I was just bringing it to your attention.
MR GUNSON: The comments made by Mr Dallow - - -
HIS HONOUR: I’m sorry. I will take that back. I raised it in relation to subpara D. You were the one who proposed the new subpara C.
MR GUNSON: Yes. In relation to the new video that Mr Dallow refers to, and what he just said a moment ago, raises considerable concern, because the video does not simply note that these proceedings have been commenced, but it speaks at length about the allegations that were made in the previous videos, and that’s the complaint about it.
HIS HONOUR: Yes.
MR GUNSON: I was – I’m not sure if your Honour has had the opportunity to look at any of the videos that have been – or that are the subject of the litigation, but they really are some of the most scandalous and vile allegations that could be made against a - - -
HIS HONOUR: Well, leave the characterisation to one side for the moment, because that might be a matter of contention. I have had a look at each of the videos, and Mr Dallow, it did seem to me, without me going back to look at it again, now that you’ve raised this point, it did seem to me that there was a form of re-publication of what you had said in the first and second videos in the third video, if only, if you like, by a form of incorporation by reference, and that’s why it seemed to me that it might be wiser just to make it plain what we’re all talking about. Do you - - -
MR DALLOW: I understand that, your Honour. I’m of different opinion, but your Honour is entitled to your opinion, so - - -
HIS HONOUR: All right. All right. Well, thank you. And the other changes that, if you’re looking at Kerr J’s order, Mr Gunson was proposing … one that would attract your attention, I think, would be … If you look at order number 3 in Kerr J’s orders, on the top of the second page, Mr Gunson was asking for an order that you remove the third video from the website and … YouTube. Do you want to say anything about that?
MR DALLOW: Sorry, your Honour. Which order are you referring to?
HIS HONOUR: You need to be looking at order number 3, made by Kerr J.
MR DALLOW: Yes.
HIS HONOUR: And then, you will see that this requires you to remove the first and second video from the website and the YouTube.
MR DALLOW: That is correct, your Honour, which has been done.
HIS HONOUR: And then, I think what he wanted was, in the second line on the next page, instead of ‘he must remove both videos’, he wanted it ‘he must remove the third video’.
MR DALLOW: Right. The – I don’t – yes. Okay. I understand that, your Honour. I don’t have that in this order, though.
HIS HONOUR: No. No. It’s not in that order. This is – we were just using - - -
MR DALLOW: Right. That’s - - -
HIS HONOUR: - - - Kerr J’s order as - - -
MR DALLOW: As a text. Yes. That’s okay. Yes. I - - -
HIS HONOUR: - - - if you like, as a template for what’s proposed today. That’s why - - -
MR DALLOW: Yes, your Honour.
HIS HONOUR: - - - you don’t have it in front of you. Actually, can I just interrupt your thinking, Mr Dallow, and go back to Mr Gunson. Mr Gunson, I’m – more I look at this order, I’m wondering whether it’s necessary, if you want an order that the applicant remove the third video from the website and YouTube, you could just about delete those words … It could read instead, for the purposes of order number 2, the first respondent must remove the third video from the website and YouTube as soon as possible, or within two hours, or whatever, and ensure that neither – that it cannot be accessed by such means during the period.
MR GUNSON: Yes. That’s a much clearer form of order.
HIS HONOUR: Yes. All right.
…
HIS HONOUR: So can I go back to you, Mr Dallow – and it might just be easier for you to listen to me as I read this out, and I’m hoping, having made the changes, I’ve got all these – but what Mr Gunson is proposing is this: ‘for the purpose of order’ – and it will become order l … ‘the first respondent … must remove the third video from the website and YouTube within two hours of this order, or as soon as possible thereafter, and ensure that it cannot be accessed by such means during the period’ – which you can take it will be 5.00 pm on 21 December.
MR DALLOW: Yes, your Honour.
HIS HONOUR: Do you want to say anything about that?
MR DALLOW: No, your Honour.
34 White J also said the following to Mr Dallow in reference to the contempt application filed earlier that day:
I will be suggesting within the court that the contempt proceedings be referred off to be dealt with by another judge, so I won’t make any orders with respect to those proceedings today. It will be for the other judge to determine the timetabling and the manner in which that’s to be heard. But, if I may, can I just emphasise to you the necessity to comply strictly with court orders. Contempt is, as you probably know, a sanction available to the court to deal with non-compliance with court orders. Court orders are a serious matter; parties should comply with them, and you will be expected, of course, to comply with the court’s orders which concern you. I’m probably stating the obvious to you, but sometimes these things are better said.
35 At the conclusion of the hearing, and in Mr Dallow’s presence, White J made the following orders, among others:
THE COURT NOTES THAT:
…
2. The Applicant raised for the Court’s consideration whether, in the circumstance that the First Respondent is unrepresented, he may need more time in which to prepare for the hearing of the application for the interlocutory injunction.
3. The First Respondent intends seeking legal representation and seeks an adjournment of the hearing to allow that to occur.
4. Subject to two matters, the parties agree upon the Court making a further interim injunction to operate until after the Applicant’s interlocutory injunction can be heard.
5. The First Respondent does not consent to that part of the orders below which concern the Third Video.
…
THE COURT ORDERS THAT:
1. Upon noting the usual undertaking of the Applicant by his counsel and his further undertaking to prosecute the proceedings expeditiously, the First Respondent be forthwith restrained until 5 pm on 21 December 2020 from publishing, republishing, distributing, disseminating or making available for viewing:
(a) the video entitled ‘Behind the Classroom Door’ (First Video) published on the website www.tasnews24.tv (Website) and on the online platform www.youtube.com (YouTube);
(b) the video entitled ‘Update Behind the Classroom Door’ (Second Video) published on the Website and YouTube;
(c) the video entitled ‘Legal Update’ (Third Video) published on the Website and YouTube; and
(d) the allegations made against the Applicant in the First, Second and Third Videos whether in the form of those Videos or otherwise, and whether directly or indirectly.
2. For the purposes of Order 1, the First Respondent shall remove the Third Video from the Website and YouTube within two hours of this order or as soon thereafter as is reasonably possible and shall ensure that it cannot be accessed by such means before 5 pm on 21 December 2020.
…
36 Justice White made the orders in court at approximately 5:30 pm. At 6:41 pm, Mr Cassidy received a sealed copy, which had been endorsed with a penal notice in the form set out at [20] above. At 6:44 pm, he forwarded this copy by email to Mr Dallow.
37 At around 10:15 pm, Mr Cassidy, who was monitoring whether Mr Dallow had complied with the order, found that he was still able to access the third video on YouTube and Mr Dallow’s website. He sent Mr Dallow an email, which set out order 2 of White J’s orders in full, and demanded that Mr Dallow take down the third video. Not long after that, at around 10:38 pm, the third video was removed from YouTube and Mr Dallow’s website.
38 A little more than a week after the hearing before White J, the applicant filed an interlocutory application dated 18 December, containing a second charge of contempt against Mr Dallow. The second charge reads as follows:
1. Disobedience of Orders made by the Honourable Justice White on 9 December 2020.
Particulars:
Having been present in the Federal Court of Australia at Hobart in the State of Tasmania on 9 December 2020 at approximately 5:30pm Australian Eastern Daylight Savings Time when the Honourable Justice White pronounced Orders via audio-visual link from the Federal Court of Australia at Adelaide in the State of South Australia, such Orders including that you ‘be forthwith restrained until 5 pm on 21 December 2020 from publishing, republishing, distributing, disseminating or making available for viewing:
(a) the video entitled ‘Behind the Classroom Door’ (First Video) published on the website www.tasnews24.tv (Website) and on the online platform www.youtube.com (YouTube);
(b) the video entitled ‘Update Behind the Classroom Door’ (Second Video) published on the Website and YouTube;
(c) the video entitled ‘Legal Update’ (Third Video) published on the Website and YouTube; and
(d) the allegations made against the Applicant in the First, Second and Third Videos whether in the form of those Videos or otherwise, and whether directly or indirectly’ (Order 1);
and ‘[f]or the purposes of Order 1, [you] shall remove the Third Video from the Website and YouTube within two hours of this order or as soon thereafter as is reasonably possible and shall ensure that it cannot be accessed by such means before 5 pm on 21 December 2020’ (Order 2), you disobeyed Order 2 by failing to remove the Third Video from the Website and YouTube within two hours of the Orders being made.
39 Mr Dallow was personally served with the 8 and 18 December contempt applications on 23 December 2020.
Mr Dallow’s evidence-in-chief
40 On the morning of the first day of the contempt hearing, I said to Mr Dallow that he was not obliged to say anything in his defence, though he was free to make submissions or give oral evidence if he wished. Later that day, at my suggestion, the matter was adjourned to the following day to allow Mr Dallow to consider his position and to seek advice, if he wished to do so. Mr Dallow gave evidence, and was cross-examined, the next day.
The first charge
41 In his oral evidence-in-chief concerning the first charge, Mr Dallow gave the following evidence:
Your Honour, I simply believed that the third video wasn’t in breach of the order. It was merely a – I found it to be a video blog or a video diary of some sort to my viewers of what was happening towards me on a personal level, and I felt that I was able to … do that without breaching the order. It was – I thought that I was able to discuss what was happening to me on a personal level, and how it was affecting me because I had viewers contacting me and I wanted an explanation for them to be able to know what was going on. And I didn’t feel that I would have been in breach of that order, and had I known that I would have been in breach of the order, of course, the third video wouldn’t have gone up.
…
[I]t was a simple case of me being able to vent in what was happening towards me and what I – how I was coping with things. I believed that because the information about the hearing and correspondence was on the Federal Court website for public viewing and it was part of public knowledge, I believed that I was able to discuss it and felt it was relevant to be able to discuss it because it was relating to me personally of what was happening to me in court. Now, I understand that obviously it does breach the order, but it wasn’t my intention to breach the order and never has been my intention to breach any court order.
The second charge
42 As to the second charge, Mr Dallow said this in his oral evidence-in-chief:
Well, your Honour, it was my understanding that White J was aware that I was residing in Legana [near Launceston], and the situation as I briefly explained requires a number of steps to be able to take down programs that are on our website, and, of course, featured on our YouTube channel. It’s not a simple matter of I can jump on my phone and take it off. It’s not like that. And for it to be wiped completely off of our server and off of the website in order for it to be pulled immediately, our technician who I use for our website design and uploads resides in rural New South Wales. So I had to make contact with him and have that pulled, but also for me to be able to get home takes me two and a half hours to get home, and then I have to drive 12 kilometres to get my keys for the studio which I have at my home, and then drive a further 25 kilometres to the studio where then the computer was located in order to take down those videos from YouTube. So I – yes. I didn’t make the two-hour time frame as it was instructed to me in the order, but I made every attempt possible to remove the contents of all videos as fast as possible, as quickly as possible, and I have not since reissued or broadcasted the programs at all. I followed every part of the court order and that’s all I can speak of that, your Honour.
Mr Dallow’s cross-examination
The first charge
43 Mr Gunson asked Mr Dallow about his knowledge of the orders made by Kerr J, as follows:
Now, when you read the order, you read that part that’s described as a penal notice?---Yes, that’s correct.
The bit in bold?---Yes.
That told you that if you disobey the orders, you’re liable to imprisonment, sequestration of property or other punishment?---Yes, that’s correct.
Reading that penal notice, you understood that it was important that you complied with the order?---That’s correct.
And knowing that you were at risk of imprisonment if you breached the order, you carefully read the order to determine what you could and could not do, correct?---Correct.
And I suggest to you that you read the entirety of the order?---That’s correct.
Including that part of the order that said ‘Until further order, the court file in this proceeding not be inspected by any person who’s not a party to the proceeding without leave of a judge of the court’ correct?---Yes. But I didn’t recall reading that part …
44 Mr Gunson also asked Mr Dallow about his understanding of the orders made by Kerr J, as follows:
And at the time that you put the video – that’s the third video – online, that was your understanding, wasn’t it? That you were restrained from publishing, republishing, distributing, disseminating or making available for viewing the allegations made against the applicant in the first and second videos?---I believed that the information received in the first and second video was not to be reissued or re-spoken about.
And that’s exactly what you did, wasn’t it?---No. I spoke about how I was dealing with what I was dealing with in the Federal Court. I did not think for a second that that would be in breach of any orders I had received or read. I – it was just merely a simple fact that I was wanting to vent to a situation where I can tell my viewers what was going on and how it was affecting me, and I understand how this might affect your client, but it was a situation of where every day – every second day I was being delivered reports and paperwork and emailing me and it was just piling on top, and I felt that I needed to vent in a way that I could tell my viewers what was going on, which was personally affecting me. Not the case or anything like that. It was personally affecting me.
Now, you said then that you understand how this might affect the applicant. You recall that?---Yes.
And you understand that the allegations that you made in the first and second videos are very serious allegations?---Yes. They are.
Yes. And you understand that such allegations have caused immense harm to the applicant’s reputation?---Yes. I agree.
And you understood that at the time that you published the first and second videos. You understood the serious – of the allegations?---Most definitely.
You understood that the consequences of making those allegations could involve … the applicant losing his commission as a minister?---Yes.
Yes. You understood it could force him to resign from Parliament?---Yes.
Yes?---But at no - - -
[Redacted]
And you knew at the time that you published the third video that you were subject to the restraint from Kerr J, restraining you from publishing, republishing, distributing, disseminating or making available for viewing the allegations made against the applicant in the first and second videos … You understood that at the time you published the third - - -?---No.
- - - video?---I didn’t, because I believe that those orders that I had received were for the first and second video. That’s what I believed. That’s what I was reading. It wasn’t my intention to breach any of those orders whatsoever. And yes, I am aware of the damaging – the damages that this could have brought onto your client, but at the same token, I never said throughout any of this that the applicant is guilty of it, at all.
Mr Dallow, you knew the effect of order 2(c), which is the restraint on publishing the allegations from 2 December 2020 from at least about 11.09 pm, didn’t you?---Yes.
Yes. Because that’s when Page Seager sent you a letter informing you that they considered that two tweets and a screenshot of correspondence with the Premier’s office which referred to the allegations constituted a breach of order 2(c), didn’t you?---Yes.
Yes. For your Honour’s reference, that’s at CB124. And in fact, Page Seager said to you:
We request that you immediately remove those publications, along with any other references to the allegations made against the applicant in the first and second video that you have published, republished, distributed, disseminated, or made available for viewing.
Didn’t they?---Yes.
Yes. And they said:
Compliance with the orders is a serious matter. We reiterate the substance of what was set out in order 6 of the orders, namely that if you refuse or neglect to do any act within the time specified in these orders for the doing of the act or disobey the orders by doing an act which the orders required you not to do, you will be liable to imprisonment, sequestration of property, or other punishment.
They told you that?---Yes.
Yes. And you understood that the orders, as a consequence of receiving that letter, you understood that order 2(c) expanded or encompassed any repetition of the allegations that were contained in the first and second video. Correct?---Yes.
Yes. You had no doubt about that?---That’s correct.
45 During the course of his cross-examination, Mr Dallow also said that he did not intend to breach the orders of Kerr J, as follows:
… you understood on 2 December that you couldn’t do anything that would constitute publishing, republishing, distributing, disseminating, or making available for viewing anything about the allegations that were made in the first and second videos. That was your understanding, wasn’t it?---Yes, that I couldn’t do anything relating to the first and second videos. That’s what – that was my understanding of it. And again - - -
And you couldn’t - - -?--- - - - the third video was in – on the basis of myself needing – needing to – needing to vent and so that’s – it wasn’t an intentional breach … I did not set out to breach any orders whatsoever.
46 Having given that evidence, Mr Gunson asked Mr Dallow about the steps that he takes when he produces videos for his website or for uploading on YouTube, and that he took when he produced the third video. Mr Dallow agreed that such steps include deciding what the video will be about, writing the script, selecting graphics and video effects, selecting sound effects, and working out a running sheet or plan.
47 When pressed about his understanding of the orders made by Kerr J, Mr Dallow gave the following additional evidence:
Okay, we will go through it. The first respondent be restrained from publishing, republishing, distributing, disseminating or making available for viewing the allegations made against the applicant in the first and second videos. What didn’t you understand about that?---Because I wasn’t showing anything from the first and second video in the third video. I didn’t show any of the interview, I didn’t show any of the discussions of the interview, I basically – yes, I stipulated the allegations and I agree to that, but I felt that I didn’t reflect back onto videos one and two in the sense of I didn’t reshow the interview or anything like that.
So you thought that you were entitled to repeat what the allegations made in the first and second videos were, just so long as you didn’t show the videos themselves?---That’s correct.
Yet you understood that the maintenance or the continuation of tweets that had references to the videos or to the allegations in the videos was a breach of the order. You agreed to that?---Yes. And that was before the order, though.
Well, no, it was the continuation of those tweets being accessible that was the breach, wasn’t it?---Yes.
Yes. Yet when it comes to explicitly repeating the allegations in the second video, is it your evidence that you thought you were able to do so because you didn’t show the videos?---Yes, that’s correct. And to the point where it was again – and I reiterate – that it was for a purpose of being able to vent what was personally happening to me in court.
…
And I suggest that your publication of the third video by containing repetition of the allegations made against the applicant was intended to do harm to him?---No.
The second charge
48 Mr Dallow accepted that he:
(1) was present in court when White J made the 9 December orders;
(2) knew that the orders would require him to remove the third video within two hours of the orders or as soon thereafter as was reasonably possible; and
(3) knew that it would take him more than two hours to return from court in Hobart to his home near Launceston to be able to access his computer.
49 He claimed that he did not understand that he was permitted to address White J about the drafting of the proposed orders. The evidence along those lines included the following exchanges:
You participated in the proceedings with White J in the sense that you answered his questions and made submissions?---Yes. But I did not know that I was able to talk to him about that or address him in that way.
Well, you knew that you were able to address him about … whether you should be obliged to take down the third video, didn’t you?---Because he asked me a question and I answered. I responded to his question. I didn’t even know that I could speak to your Honour or anybody on this bench.
50 As for what happened on the evening of 9 December, after the hearing, Mr Dallow conceded that there had been nothing stopping him from immediately removing the third video from YouTube using an application on his mobile phone, without the need to return to Launceston or to consult with his technician. That concession appears towards the end of these exchanges between Mr Dallow and Mr Gunson:
Now, you know, don’t you, that it’s possible to remove a video from YouTube by mobile phone?---No. It’s not.
It’s not possible to remove a video from YouTube by mobile phone?---You can block it and take it down, but it’s not removed off the server completely which is what was ordered to be removed. So you can take it off with a mobile phone and it can be still there, but to have it removed completely, you need it to be removed from an actual server.
You can upload to YouTube using a mobile phone app. You agree with that?---Yes. You can.
Yes. And you can manage your YouTube channel using a mobile phone app?---Yes.
And that includes being able to remove a video from your YouTube channel?---Like I said, you can remove them from your mobile phone, but not completely.
No?---It’s the same principle - - -
No?--- - - - as - - -
Mr Dallow, YouTube lives on the YouTube server on the internet. That’s correct, isn’t it?---Yes.
That’s your understanding?---Yes.
You as a user of YouTube can manage the content on your channel. Correct?---Yes.
And if I want to watch your channel, I access it via the YouTube server on the internet?---Yes.
And when you manage your channel via your mobile phone, you alter the content on the YouTube server. Correct?---Not on the YouTube server. Yes. Sorry. Yes. On the YouTube server. That is correct. Yes.
Yes. So when you upload something from your mobile phone to the YouTube server, it goes from your mobile phone to the YouTube server?---That’s correct.
Correct?---Yes.
And when you want to delete something from the YouTube server, you use the YouTube app on your mobile phone and you tell YouTube or the YouTube server, ‘Delete that video’, and it happens. Correct?---Yes.
Yes?---But - - -
Exactly the same as using a computer?---No. It’s not, because my YouTube channel is linked in with my server for the website. So in order for the actual video to be completely taken down – it works in the same way as the defamation claim goes to YouTube. YouTube then block it. The people with a VPN [virtual private network] can still watch that video because a VPN is allowing you to get your website from – you’re allowed to get the traction online from anywhere. So when the defamation claim goes in and YouTube block it, people can still view it if they’ve got a VPN. So in order to take that completely off of my site, I have to remove it from our website as well because they’re intertwined together. So it’s not a simple case of going, ‘I’m going to jump on my phone and remove it from my phone’, because it’s not like that. It’s still there for people to view it. It’s still there. It’s just blocked for people to view it in Australia, but if you’re in America you could watch it. If you had a VPN on your mobile phone you could still watch it.
If you delete something from YouTube, that is, delete it, it is no longer available for anyone to watch, is it?---No. That’s not true because it still sits there. Anybody can still - - -
If you have deleted a video from YouTube, it is no longer accessible by viewers, is it? It has been deleted?---Well, depending on the depth of how it has been deleted. It’s - - -
Well, when you go on to YouTube and you click on – or as you go to managing your site, it gives you an option to delete or remove a video, doesn’t it?---Yes. That’s correct.
And once you delete or remove the video, it is no longer accessible, is it?---To the normal person on the outside, no.
No. And that has got nothing to do with VPNs or the like, does it?---No.
No. Because once you have deleted a video from YouTube, it is not accessible by anyone in the world, is it?---That’s correct.
And when you refer to the defamation claim going into YouTube, that is a process, is it not, whereby a person believes that they are defamed by a video on YouTube and they make a complaint to YouTube?---That’s correct.
And YouTube has a process for managing such complaints?---That’s correct.
And one of the things that they do, that is, YouTube, is they can geo-block videos?---Yes.
And what that means is that the video may be blocked for viewing by people with an IP address linked to Australia?---Yes.
As if it was an Australian blocked thing?---Yes.
But someone in New Zealand or the United States can still have access to it?---Yes. That’s correct.
Because it remains on the YouTube server?---Yes.
Just can’t be viewed in Australia?---That’s correct.
Yes. And a VPN is simply a method whereby someone with an Australian IP address, for example, can mask it to look like they’ve got a US IP address?---That’s correct.
… So if someone has a VPN, and let’s say hypothetically it lets them … it makes it look like a US IP address that they’re using - - -?---Yes.
- - - the YouTube server would think that it’s an American computer?---That’s correct.
Now, there was nothing to prevent you in relation to the third video from getting onto your phone and simply managing your channel and removing the video, was there?---No.
51 Mr Dallow also accepted that, even when later on the evening of 9 December the applicant’s solicitors demanded that he comply with White J’s orders, he made no mention of the relevance of the length of his journey home. Nor did he mention it after he was served with the contempt applications, or at any other point prior to the hearing. His evidence in that regard included this:
And in fact, at 10.18 pm on 9 December, Court Book 185, your Honour, Page Seager sent you a letter in relation to the fact that the third video remained on both the website and YouTube, didn’t they?---That’s correct. And I did respond to that.
HIS HONOUR: So you did, or you didn’t?---I did, your Honour. Yes.
MR GUNSON: And in what way did you respond?---Via email.
And that email did not contain an assertion that you had been unable to comply with the order until that time, because if you need to travel to Launceston, did it?---That’s correct. Yes.
It did not contain that?---No. It didn’t. No.
In fact, yesterday is the first time that you’ve articulated that your inability, you say, to comply with the order by taking the video down in two hours has been made by you. That yesterday was the first time that you have suggested that it was a need to travel to Launceston that prevented you from getting the order down in two hours?---Yes. That’s correct. Because you already knew where I resided. So I didn’t think it was a need to mention that in court, and the address of service that is provided to the court stipulates where I reside.
And you were served with a statement of charge, charging you with contempt?---Yes.
And you never went back to Page Seager and said, ‘Hey, what are you doing? These are the circumstances’?---Sorry for – what do you mean. In relation to what?
You never said, ‘What are you doing charging me with contempt, I couldn’t get it down in two hours because I had to get to Launceston’?---Well that’s – I didn’t know that I could reply back. Like, I knew that I needed legal advice. That was strongly mentioned in the last hearing with Justice White.
And?---I didn’t want to send anything through that would further incriminate me.
And you were represented by a solicitor until about 18 January?---That’s correct.
Yes. And, likewise, until yesterday or today you haven’t said that you needed to call a technician in New South Wales to assist you in removing the videos from the website?---That’s actually been acknowledged to Page Seager, through Mr Thompson [formerly Mr Dallow’s solicitor].
Have you got a copy of that letter?---No. I don’t.
Have you seen it?---Yes. Well, I’ve seen what he was going to write up.
Do you know that he sent it?---I don’t know that. No. It was very difficult.
Yet you’re prepared to say on your oath to his Honour, unequivocally, that that had been – or the need to contact a technician in New South Wales had been conveyed to Page Seager?---I had seen an email that was going to be sent off, and the draft of what was going to be sent off. Whether that was sent, I’m not sure. I would have hoped that my solicitor would have done that.
The law
52 The court’s power to punish contempt of court is conferred by s 31(1) of the Federal Court of Australia Act 1976 (Cth), which provides that “[s]ubject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court”.
53 The power of the High Court to punish for contempt is the same as that which was possessed by the Supreme Court of Judicature in 1903. See s 24 of the Judiciary Act 1903 (Cth).
54 The contempts alleged in this case are criminal contempts, because it is alleged that Mr Dallow is guilty of deliberate or contumacious disobedience of the injunctions contained in the orders of Kerr J and White J. The charges must be proved beyond reasonable doubt. See, eg, Witham v Holloway (1995) 183 CLR 525; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375.
55 Although this case is brought by a party to it, “the cardinal feature of the power to punish for contempt” is “that it is an exercise of judicial power by the courts, to protect the due administration of justice”. Re Colina; Ex parte Torney (1999) 200 CLR 386 at 429 [112] (Hayne J) (emphasis in the original).
56 As Tamberlin J said in Australian Competition and Consumer Commission v Hughes [2001] FCA 38; (2001) ATPR ¶41-807 at [15]:
Ultimately, in the case of mandatory or prohibitory orders made by it, the sanction which the Court has in order to enforce its decisions is the power to punish for contempt. This is the way in which the Court preserves respect for its role and the rule of law. Without the enforcement of court orders the whole process of adjudication becomes a hollow exercise. If a losing party can defy the orders of the Court then such disobedience renders futile, in the perception of the community, the remedy secured by the successful party. Orders are not made simply to suggest or advise persons that they ought to keep to the law as proclaimed but to ensure that the law is carried out as determined by the decision pursuant to which the order is made. Defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts.
57 In order to find that Mr Dallow is guilty of contempt, the court must be satisfied beyond reasonable doubt of the following five matters:
(1) an order was made by the court;
(2) the terms of the order are clear, unambiguous and capable of compliance;
(3) the order was served on the alleged contemnor or excused in the circumstances, or service was dispensed with pursuant to the rules of court;
(4) the alleged contemnor has knowledge of the terms of the order; and
(5) the alleged contemnor deliberately and voluntarily breached the terms of the order.
See, by way of example only, Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 at [31]-[32] (Gillard J); Hurd v Zomojo Pty Ltd [2015] FCAFC 148 at [28] (Besanko and Gilmour JJ), [164] (Beach J, agreeing).
Consideration
58 The evidence establishes beyond reasonable doubt, and Mr Dallow did not dispute, that the orders of Kerr J and White J were made, that their terms are clear, unambiguous and capable of compliance, that they were served on Mr Dallow, and that Mr Dallow had knowledge of their terms.
59 On the question of service, in addition to personal service of Kerr J’s orders on Mr Dallow, which occurred on 2 December (see [20] above), the applicant also relies on the fact that Mr Dallow was present in court when White J made his orders, and that, by virtue of r 41.07(2) of the Federal Court Rules 2011 (Cth), he is thus deemed to have been served with them.
60 As to knowledge of the orders, Mr Dallow said the following in cross-examination about his knowledge of the order of Kerr J:
Now, when you read the order, you read that part that’s described as a penal notice?---Yes, that’s correct.
The bit in bold?---Yes.
That told you that if you disobey the orders, you’re liable to imprisonment, sequestration of property or other punishment?---Yes, that’s correct.
Reading that penal notice, you understood that it was important that you complied with the order?---That’s correct.
And knowing that you were at risk of imprisonment if you breached the order, you carefully read the order to determine what you could and could not do, correct?---Correct.
And I suggest to you that you read the entirety of the order?---That’s correct.
61 As to the order of White J, Mr Dallow said the following in cross-examination about his knowledge of it:
Now, in relation to the second charge, you were in court when White J made the orders?---Yes. That’s correct.
You were involved in discussion with White J about what the terms of the orders should be?---Yes.
You understood the order at that time?---Not completely. No.
Okay. You understood that White J proposed to make an order that the third video be removed from your website and YouTube within two hours?---Yes.
And you knew that you were in Hobart at that time and that you lived in Launceston?---Yes.
You knew that it would take you longer than two hours to get from court to your home in Launceston - - -?---Yes.
- - - to access your computer?---Yes.
62 The final issue for resolution is whether Mr Dallow breached the terms of the orders.
The first charge
63 I turn to the first charge and to the content of the third video.
64 By the terms of order 2(c) of Kerr J’s orders, Mr Dallow was restrained from publishing, republishing, distributing, disseminating or making available for viewing the first video, the second video, and the allegations made against the applicant in the first and second videos, for a period of 7 days commencing immediately upon the applicant’s amended originating application, the orders of Kerr J and the court’s reasons having been served. That order was made upon the applicant’s undertaking that he would by no later than 4:00 pm on 8 December file a statement of claim and would serve it on Mr Dallow immediately upon Mr Dallow providing an address for service.
65 The evidence establishes that service of the applicant’s amended originating application, the orders of Kerr J and the court’s reasons was effected on 2 December 2020 at 7:10 pm.
66 The statement of claim was duly filed on 7 December 2020 and served on Mr Dallow at 2:52 pm that day.
Paragraphs 67-69 [redacted]
70 The publication of the third video was, in my view, beyond reasonable doubt, an intentional breach of the orders of Kerr J.
71 I do not accept Mr Dallow’s assertion that he did not intend to breach the order of Kerr J. He well knew that, under the guise of giving an “update” about this proceeding, he was repeating and republishing the same very serious allegations made in the first and second videos. This was deliberate, and not a consequence either of misunderstanding Kerr J’s orders or an accident.
72 Mr Dallow conceded that he had read and understood the order, and despite what he said at one point about only wanting to explain what was happening to him on a “personal level” and “to vent”, he knew that Kerr J’s orders prohibited him from republishing the substance of the allegations against the applicant. He knew that because, quite apart from anything else, he had: (i) read and understood the order, and knew that “the information received in the first and second video was not to be reissued or re-spoken about” (see [43]-[44] above); and (ii) received complaints from the applicant’s solicitors on 2 and 3 December about other material (tweets and emails) that he had posted on Twitter and his website repeating the allegations, and subsequently removed that material (see [22]-[23], [44] above).
73 The breach can only have been a deliberate one. As Mr Dallow agreed in cross-examination, the preparation of the third video, like the other videos, required him to take a number of deliberate steps, including deciding what the video would be about, writing the script, selecting graphics and video effects, selecting sound effects, and working out a running sheet or plan (see [46] above).
74 I also reject as fanciful, and untruthful, Mr Dallow’s evidence that he thought that he was entitled to repeat the allegations made in the first and second videos, just so long as he did not show the videos themselves (see, eg, [47] above).
The second charge
75 I turn next to the second charge.
76 For the reasons that follow, I am satisfied beyond reasonable doubt that Mr Dallow deliberately breached the order of White J because he did not cause the third video to be removed from YouTube within two hours of the making of the order.
77 As to his failure to remove the third video from his website until 10:38 pm, I am not satisfied beyond reasonable doubt that such failure constituted a breach of the order.
78 It will be recalled that White J’s order relevantly provided that Mr Dallow “shall remove the [t]hird [v]ideo from the [w]ebsite and YouTube within two hours of this order or as soon thereafter as is reasonably possible …”
79 Mr Dallow agreed in cross-examination that he was able, on the making of White J’s order, to remove the third video from YouTube by using an application on his mobile phone, which he had in his possession in Hobart. That is, it is clear beyond reasonable doubt that it was reasonably possible for Mr Dallow to remove the third video from YouTube within two hours of the making of the order. Specifically, he gave this evidence (set out in full at [50] above):
Mr Dallow, YouTube lives on the YouTube server on the internet. That’s correct, isn’t it?---Yes.
That’s your understanding?---Yes.
You as a user of YouTube can manage the content on your channel. Correct?---Yes.
And if I want to watch your channel, I access it via the YouTube server on the internet?---Yes.
And when you manage your channel via your mobile phone, you alter the content on the YouTube server. Correct?---Not on the YouTube server. Yes. Sorry. Yes. On the YouTube server. That is correct. Yes.
Yes. So when you upload something from your mobile phone to the YouTube server, it goes from your mobile phone to the YouTube server?---That’s correct.
Correct?---Yes.
And when you want to delete something from the YouTube server, you use the YouTube app on your mobile phone and you tell YouTube or the YouTube server, ‘Delete that video’, and it happens. Correct?---Yes.
…
Well, when you go on to YouTube and you click on – or as you go to managing your site, it gives you an option to delete or remove a video, doesn’t it?---Yes. That’s correct.
And once you delete or remove the video, it is no longer accessible, is it?---To the normal person on the outside, no.
…
Now, there was nothing to prevent you in relation to the third video from getting onto your phone and simply managing your channel and removing the video, was there?---No.
80 In circumstances where Mr Dallow knew that he had the capability immediately to do so without travelling back to Launceston, where he admitted that he well understood the meaning and effect of the order, and where it was not removed until around 10:38 pm that night, I find beyond reasonable doubt that he deliberately refused to comply with the order to remove the third video from YouTube within two hours of the making of the order.
81 On the other hand, Mr Dallow was not seriously challenged about his assertion that, unlike removing the video from YouTube, to remove the third video from his website he had to travel home to Launceston and seek assistance from his technician in New South Wales. It is true (see [51] above) that Mr Gunson put it to Mr Dallow that this evidence was in effect a recent invention, but ultimately it was not established beyond reasonable doubt that such evidence was untrue. In his closing submissions, Mr Dallow put his defence this way:
Well, your Honour, I simply stand by the evidence that I provided today in court before yourself. I was under the impression that within the order, which – what I read, that I had two hours or in a reasonably able to and [sic] ensure that neither can be accessed such means during the period … but I assumed that at that period of time, if I couldn’t make the two hours in removing the video content, and I acknowledge that I could do removal of the platform from YouTube, but I simply cannot do that from my phone for the website, which I would have been in breach for if it was still listed.
(Emphasis added.)
82 In circumstances where his assertion to the effect that he “simply could not” remove the third video from his website within two hours of the making of the order was not directly challenged, I am satisfied that it has not been established beyond reasonable doubt that Mr Dallow did not remove it as soon as was “reasonably possible” within the meaning of the order.
83 For the sake of completeness, I should also mention Mr Dallow’s evidence to the effect that he “did not know that [he] was able to talk to [White J]” at the hearing on 9 December or “address him” about the terms of the then proposed orders, and that he “didn’t even know that [he] could speak to [White J] or anybody on this bench”. I regard that evidence as absurd and untruthful. Mr Dallow was asked on a number of occasions by White J whether he agreed to what was being proposed, including about the two hour provision, and on each such occasion he expressed his agreement with what Mr Gunson proffered, without the slightest hint that he did not understand what he was being asked to agree to, or what he could say in his capacity as a self-represented litigant. I also take into account that, on his own admission, Mr Dallow is no stranger to court processes.
84 For those reasons, I will make the relevant declarations, and re-list the matter for a further hearing on penalty and costs on a date to be fixed.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O’Callaghan. |
Associate:
CONFIDENTIAL ANNEXURE A
Transcript of first video Annexure 7.3 to the affidavit of Brett Cassidy dated 22 December 2020
[Redacted]
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Transcript of second video Annexure 7.7 to the affidavit of Brett Cassidy dated 22 December 2020
[Redacted]
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Transcript of third video Annexure 7.18 to the affidavit of Brett Cassidy dated 22 December 2020
[Redacted]
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