Federal Court of Australia

Ferguson v Dallow (No 5) [2021] FCA 698

ORDERS

THE COURT ORDERS THAT:

1.    On the charge of contempt in the statement of charge dated 8 December 2020, in respect of which the respondent was adjudged guilty on 5 March 2021, the following sentence of imprisonment be imposed on the respondent: 4 months.

2.    On the charge of contempt in the statement of charge dated 18 December 2020, in respect of which the respondent was adjudged guilty on 5 March 2021, the following sentence of imprisonment be imposed on the respondent: 1 month.

3.    On the two charges of contempt in the amended statement of charge dated 14 April 2021, in respect of which the respondent was adjudged guilty on 17 May 2021, the following sentences of imprisonment be imposed on the respondent:

(a)    On the first charge: 4 months.

(b)    On the second charge: 4 months.

4.    The sentences referred to in order 3 be served concurrently.

5.    The respondent serve a term of imprisonment of 9 months in total, dating from 28 June 2021 to 27 March 2022.

6.    A warrant issue for the respondent’s committal to prison.

7.    The respondent pay the applicant’s costs in respect of each of the contempt applications on an indemnity basis.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    Mr Dallow has been found guilty of four charges of contempt of court brought against him by the applicant. See Ferguson v Dallow (No 3) [2021] FCA 177 and Ferguson v Dallow (No 4) [2021] FCA 513.

2    In Ferguson v Dallow (No 3) [2021] FCA 177, I found and declared 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 [the first contempt].

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 second contempt].

3    In Ferguson v Dallow (No 4) [2021] FCA 513, I found and declared that:

1.    Kane Scott Dallow is guilty of contempt of court, in that, having been personally present in court at the Federal Court of Australia at Hobart on 19 February 2021 when the Honourable Justice White was sitting in the Federal Court of Australia in Adelaide via audio-visual link to the Federal Court of Australia at Hobart, and having been personally served with the orders made by the Honourable Justice White on 19 February 2021 (Orders) on 24 February 2021 at approximately 10:33 am, such Orders containing in Order 1 a requirement that he ‘be permanently 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 (the 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;

(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’,

on or about 7 or 8 March 2021 he intentionally disobeyed the Orders of the Honourable Justice White:

(a)    by publishing on the website and YouTube a video entitled ‘Broken Parliament’ (fourth video), the fourth video indirectly publishing, republishing, distributing, disseminating or making available for viewing the allegations made against the applicant in the first video, the second video and the third video; and

(b)    by publishing a post to Twitter containing a link to the fourth video

[the third contempt].

2.    Kane Scott Dallow is guilty of contempt of court, in that, in the fourth video he included the following words:

There seems to be a ring of protection for anyone that is involved in Parliament and this ring of protection is of the highest power and continues to play a major significance, even outside the walls of Parliament House. Members including Ministers are protected on every level including the most recent case involving a Tasmanian minister caught up in allegations [redacted], who to date hasn’t responded to the allegations, nor has the allegations been made public. Again the ring of protection is hard at work as the politician in this case is being protected by every level of the Government and sadly more to the point by the Courts,

such words conveying and intended to convey to members of the Australian public that the Federal Court of Australia:

(a)    is part of a ring of protection to protect politicians, including Ministers of the Crown;

(b)    is not independent of the executive and parliamentary branches of government;

(c)    acts to cover up allegations of misconduct by politicians, particularly Ministers of the Crown; and

(d)    gives preferential treatment to politicians, including Ministers of the Crown

[the fourth contempt].

4    Having adjudged Mr Dallow guilty of each of those four contempts, the matter was listed for a hearing as to sentence on 21 May 2021. At that hearing, Mr C Gunson SC appeared with Ms JE Sawyer for the applicant. Mr Dallow was again self-represented.

Relevant principles

5    The underlying rationale of sentencing for contempt is the protection of the effective administration of justice.

6    In Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107, 112-13, Gibbs CJ, Mason, Wilson and Deane JJ said the following about the rationale and purpose of the contempt power:

... the underlying rationale of every exercise of the contempt power ... [is] 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.

… lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. In our view … a deliberate commission or omission which is in breach of an injunctive order or undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.

7    Later in their reasons (at 115), their Honours said this about the nature of the court’s power to deal with and punish contempt of court:

These are considerable powers, resort to which imposes a heavy responsibility upon a court confronted with a determined challenge to its authority. The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law. Contempt of court is a distinctive offence attracting remedies which are sui generis. It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result.

(Citations omitted.)

8    And as the Full Court explained in Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90 at 132 [97] (Besanko, Wigney and Bromwich JJ) (Kazal):

The plurality in [Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375] observed at [41], endorsing the statement of principle by Hayne J in Re Colina; Ex parte Torney (1999) 200 CLR 386 at [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.

9    The following is a “useful” but “not exhaustive” list of considerations that may be relevant in determining the appropriate punishment for a contempt of court: the seriousness of the contempt proved; the contemnor’s culpability; the reason or motive for the contempt; whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; whether there has been any expression of genuine contrition by the contemnor; the character and antecedents of the contemnor; the contemnor’s personal circumstances; the need for deterrence of the contemnor and others of like mind from similar disobedience; and the need for denunciation of contemptuous conduct. See Kazal at 133 [101]. Those nine considerations are derived from Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; 71 ACSR 279 at 283-4 [27] (Barrett J) (Matthews).

10    There is one point of principle that I must deal with in light of submissions advanced by counsel for the applicant. It is this.

11    In R v Giscombe (1984) 79 Cr App R 79, the appellant appealed his conviction for contempt and the sentence imposed by the trial judge, including on the ground that the sentence was excessive. In the course of dealing with that ground, Lord Lane CJ (giving judgment for the Court of Appeal) said that, although the presence of a prior conviction for contempt is a relevant sentencing factor in a contempt case, other criminal history is irrelevant (at 84):

The man is 29 years of age, born in Jamaica. He is unemployed now. He has unhappily recorded against him a substantial list of criminal convictions. However, as I think was submitted to us and we accept, in matters of this sort the nature of a man’s criminal record is of no importance, unless of course that criminal record contains an offence similar to the one of which he has been found guilty by this Court, of which there is none in this case.

12    So much was assumed by the parties to be common ground in Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 at 501 [25] (Merkel J) (Louis Vuitton), where the following is recorded: “It was common ground between the parties that the following factors … are relevant to penalty … (6) absence or presence of a prior conviction for contempt: Attorney-General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405 at 410. However, other criminal history is irrelevant: R v Giscombe (1984) 79 Cr App R 79 at 84”.

13    The decision in Attorney-General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405 referred to in Louis Vuitton is not particularly helpful on this point. The court (Kirby ACJ, Hope AP and Mahoney JA) merely notes that the contemnor, a newspaper publisher, had never before in its 120-year history been charged with contempt, and that this was a mitigating circumstance (at 410).

14    In Matthews it was held (at 283-4 [27]) that the “character and antecedents of the contemnor” were relevant for sentencing purposes. The facts in that case concerning the contemnor’s recalcitrance were as follows (at 280-1 [4]-[11]):

4    The orders disobeyed by the defendant were made by this court on 4 October 2000 in a proceeding which was originally commenced by the plaintiff against the defendant in the Federal Court of Australia.

5    Interim orders enjoining certain conduct by the defendant were made by the Federal Court on 19 February 1999. Those orders were made by consent. They prohibited certain activities concerning advice about securities and publication of securities reports.

6    Shortly afterwards, the plaintiff alleged contravention of those orders by the defendant between 8 and 15 March 1999. The defendant admitted the contraventions and that he was guilty of contempt of court accordingly. He was sentenced by the Federal Court of Australia (Sackville J) to be imprisoned for two months but it was ordered that the warrant for committal not be executed provided that the defendant refrained for 12 months from contravening any of the orders of 19 February 1999: see Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404; [1999] FCA 803.

7    By operation of the Federal Courts (State Jurisdiction) Act 1999 (NSW), the interim orders of 19 February 1999 later became orders of this court and the proceedings continued in this court.

8    The plaintiff thereafter laid further charges of contempt by reason of further alleged breaches of the interim orders of 19 February 1999. Those charges were heard by Windeyer J who, on 23 March 2000, found the defendant guilty of contempt of court: Australian Securities and Investments Commission v Matthews [2000] NSWSC 201. On 4 May 2000, his Honour ordered that the defendant be imprisoned for a fixed term of 3 months and that a warrant for committal to prison issue and be executed forthwith: Australian Securities and Investments Commission v Matthews [2000] NSWSC 392. The defendant was imprisoned and served his sentence.

9    The orders the subject of the application heard by me are final orders made by this court in the transferred proceedings on 4 October 2000. The orders were made by consent. The terms of them appear at paragraph 3 of the judgment of 25 February 2009. They too forbade various forms of conduct with respect to securities.

10    On 11 May 2001, the plaintiff brought further charges of contempt against the defendant. It alleged various contraventions of the final orders of 4 October 2000. On 30 August 2001, Foster AJ found the defendant guilty of contempt of court and sentenced him to imprisonment for 12 months, but with the warrant for committal to remain unexecuted provided that the defendant gave security in the sum of $5,000 to be of good behaviour for a period of two years: see Australian Securities and Investments Commission v Matthews (2001) 39 ACSR 110; [2001] NSWSC 735. The security was provided.

11    This is thus the fourth occasion on which the defendant has been found guilty of contempt of court by reason of contravention of court orders regulating his behaviour in matters concerning securities. On each of the earlier occasions, he has been sentenced to a term of imprisonment. In one case, the sentence was served. In each of the other two (the first and the third) it was suspended on condition that the defendant be of good behaviour.

15    It is in the context of those four contempts that Barrett J said (at 283-4 [27]):

27    Drawing on those sources and having regard to the purpose of the orders of 4 October 2000 [referred to at [9] in the extract immediately above], I am of the opinion that the following are the relevant considerations in this case:

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.

9.    The need for denunciation of contemptuous conduct.

(Emphasis added.)

16    It is tolerably clear that when his Honour referred to “the character and antecedents of the contemnor” he had in mind Mr Matthews’ three previous contempt convictions, as is apparent from [39]-[40] of his Honour’s reasons:

Factor 6

39    The defendant has been adjudged guilty of contempt of court on three previous occasions. I have referred to the penalties imposed.

40    By reason of those matters and the sentences of imprisonment (two suspended and one served), the defendant cannot be regarded as a person of good character.

17    In Kazal, it seems that the contemnor had no previous convictions of any kind, and neither the trial judge nor the Full Court had regard to prior convictions in fixing the appropriate sentence. As the Full Court noted at 149 [175(6)]: “Having regard to the list of considerations suggested by Matthews, the following conclusions are available in relation to each: … (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”.

18    In the case of Mr Dallow, he has no other previous convictions for contempt, but he has an extensive criminal record dating back to his youth, including convictions for offences involving dishonesty and for breaching bail conditions. It follows that Mr Dallow cannot, and did not, seek to say by way of mitigation that he is of good character.

19    The applicant submitted that “the character and antecedents of the contemnor [consideration] is general and need not be limited to previous acts of contempt. In fact it can relate to various conduct, not restricted to court involvement or convictions”. The applicant conceded that “[a]t first blush this appears to be inconsistent with or an expansion of the position in Louis Vuitton”. But he submitted that “the wider position in Kazal” should be preferred because Kazal is a decision of the Full Court, whereas Louis Vuitton is a decision of a single judge; and because the “restricted position” in Louis Vuitton was “common ground” between the parties, so the issue was not argued and the court did not make a ruling.

20    I do not accept those propositions. There is, with respect, no wider position contained in Kazal. As a general principle, when determining a penalty for contempt, the relevant history of the offender includes, and is limited to, other findings of contempt. In fixing a penalty for contempt the court should take into account only other findings of contempt and should treat as irrelevant the existence of prior convictions of another kind, except for convictions for offences similar to contempt. See Australian Competition and Consumer Commission v Levi (No 3) [2008] FCA 1586; ATPR ¶42-257 at 49,611-12 [101]-[110] (McKerracher J); R v Vasiliou (No 2) [2012] VSC 242 at [8] (Beach J); Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134; 241 IR 288 at 354-5 [187] (Cavanough J); Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd (2017) 94 NSWLR 777 at 787 [33], 790 [45] (Black J); R v Murray [2018] VSC 133 at [44] (Riordan J); Victoria International Container Terminal Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2018] VSC 794; 285 IR 28 at 36-7 [19]-[20] (McDonald J).

Consideration

21    The applicant, quite properly, did not seek to make any submission as to the specific penalty to be imposed upon Mr Dallow in respect of the four contempts. See Barbaro v The Queen (2014) 253 CLR 58 at 66 [6]-[7] (French CJ, Hayne, Kiefel and Bell JJ). The applicant’s submissions were directed to the proposition that, in the circumstances of this case, an immediate and substantial period of imprisonment is the only appropriate penalty.

Seriousness

22    Each of the contempts was deliberate and serious, and self-evidently so.

23    As to the first contempt, which concerned the publication of the third video, I said this in Ferguson v Dallow (No 3) [2021] FCA 177 at [70]-[73]:

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’; 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.

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.

(Cross-references omitted.)

24    As to the second contempt, which concerned the breach of White J’s order by not removing the third video from YouTube within two hours of the making of the order, I said this in Ferguson v Dallow (No 3) [2021] FCA 177 at [80]:

80    In circumstances where Mr Dallow knew that he had the capability immediately to [remove the video from YouTube] 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.

25    That too is a serious breach.

26    As to the third contempt, which concerned the republication in the fourth video of the allegations made in the previous videos, I said this in Ferguson v Dallow (No 4) [2021] FCA 513 at [28]:

28    I am satisfied beyond reasonable doubt that Mr Dallow intentionally and indirectly published, republished, distributed, disseminated or made available for viewing the allegations made against the applicant in the first, second and third videos. Given the surrounding circumstances upon which Mr Gunson relies and which are set out above, it is fanciful to imagine that Mr Dallow could have had any other Tasmanian Government Minister in mind, or that a member of the public could, with knowledge of the surrounding circumstances referred to above, have imagined that Mr Dallow was referring to anyone other than the applicant. Mr Dallow was well aware that the terms of White J’s order prohibited him from ‘indirectly’ publishing, republishing, distributing, disseminating or making available for viewing the allegations against the applicant, and I am satisfied that that is exactly what he did, and exactly what he intended to do.

27    That too is serious breach.

28    As to the fourth contempt, scandalising the court, I found in Ferguson v Dallow (No 4) [2021] FCA 513 at [39]-[42]:

39    I am satisfied beyond reasonable doubt that Mr Dallow intended his comments about the ‘ring of protection’ to include this court, and that the public would so understand them.

40    I am also satisfied beyond reasonable doubt that what Mr Dallow said in the part of the fourth video which is the subject of charge 2 conveyed and was intended to convey to the public that this court: is part of a ring of protection to protect politicians, including Ministers of the Crown; is not independent of the executive and parliamentary branches of government; acts to cover up allegations of misconduct by politicians, particularly Ministers of the Crown; and gives preferential treatment to politicians, including Ministers of the Crown.

41    Conduct by a person which asserts any of those things, whether expressly or impliedly, is calculated to scandalise the court and to lower its authority, which in turn must impair the confidence of the public in the judgments and processes of the court. Compare, eg, Viner v Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] FCA 42; 2 IR 177 at 182 (Northrop J).

42    Such a contempt, involving as it does the assertion that a member of the Executive can have a court do his or her bidding, is a serious one. Compare Re Brookfield (1918) 18 SR (NSW) 479; Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887; Gallagher v Durack [1982] FCA 280; 44 ALR 477; Viner v Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] FCA 42; 2 IR 177.

29    For all those reasons, each of the four charges reflected serious instances of contempt.

Contemnor’s culpability

30    Mr Dallow’s culpability is high for each contempt. As to the first, second and third contempts, he was aware of and understood the meaning and effect of the orders made by Kerr J and White J, and he knew that he was acting in breach of them. And as to the fourth contempt, his degree of culpability is high because, as I found, he deliberately intended to scandalise the court and to lower its authority.

The reason or motive for the contempts

31    Mr Dallow gave evidence in Ferguson v Dallow (No 3) [2021] FCA 177 at [41] in relation to the first contempt that “it 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”. And in the course of his submissions at the sentencing hearing, Mr Dallow said that he was acting “in the public interest”. His submission along those lines was as follows:

My drive, I guess, in running the stories, your Honour, was simply to gain an understanding of a broader spectrum of the seriousness of the allegations, and to the point, as well, that I had a number of alleged victims talking to me about … what had happened.

And I felt that after the investigations that I had conducted in relation to the allegations and the information that was provided to me by a number of sources, I decided to run the story on the basis that I felt it was in the public interest. I agree that the wording of my script that was acknowledged in all four videos was reflected in a way that could have been seen as hostile, or as a, sort of, where it came into the ring of protection of the courts. I understand how, now, that would have been viewed upon viewers as in I was targeting the courts and that all courts are just protecting government bodies and stuff like that.

That – I wasn’t trying to say it that way, your Honour, I was merely trying to say that, in an essence, what I was feeling and what I was seeing from this case that’s still moving forward, from other cases within other court matters …

… I acknowledge that … the seriousness of my stories could be damaging towards Mr Ferguson, I’ve never denied that. And, of course, I just wanted to make sure that the court was aware that it wasn’t [an] attack, it was to the point where delivering a story, which I believed was in the public interest. It was never a personal attack against Mr Ferguson or his cabinet ministerial roles or the legal government or anything like that. It was just a way of – it seemed like I had all the facts, your Honour, and I felt that I was in the public interest and I decided to go with. And wholly solely I accept full responsibility. I was the one that put my face to camera and told the story, I won’t deny that.

But it was also on the fact that the information I was provided by a number of people I believed to be legitimate, and I believed that the stories that were being told to me and after the information that myself investigated … I felt we had a story. I felt that it was a story that needed to be told. It was in the public interest, and that’s why I chose to broadcast the story.

32    It is difficult to know quite what all that means. Some of it is nonsense. For Mr Dallow to say, for example, that what he said about the applicant in the various offending videos “was never a personal attack” against him falls squarely into that category. As to his claim that the “case [is] still moving forward”, it is not. Judgment was entered against him by default in the underlying proceeding, so the applicant’s allegations that the videos are defamatory are now deemed to be admitted. See Ferguson v Dallow (No 2) [2021] FCA 152 at [7] (White J). And the applicant has said that he will not pursue his claim for damages, because Mr Dallow does not have the means to pay any award.

33    It goes without saying that Mr Dallow’s claim to be acting in the public interest does not weigh in his favour. It may be assumed that he is motivated by disrespect for the authority of the court. In any event, as the applicant submitted, Mr Dallow “has certainly not provided evidence of any acceptable motive, reason or explanation for his conduct, in fact by his plea of not guilty he denied the contempts occurred at all”.

Whether the contemnor has received, or sought to receive, a benefit or gain from the contempts

34    I heard no direct evidence as to whether Mr Dallow has received or sought to receive any benefit or gain from the contempts. Mr Dallow did give evidence at the first hearing that he receives advertising revenue through his videos. It may be that his repetition of the allegations attracted viewers and thus further advertising revenue, but there is insufficient evidence to make a finding about it, and I decline to do so. It may however be inferred, as in Kazal at [175(4)], that “he sought to benefit in a personal satisfaction sense” from “blackening” the applicant’s name.

Whether there has been any expression of genuine contrition by the contemnor

35    Mr Dallow offered no apology to the court.

36    Mr Dallow deposed that he sent, and the applicant says he received, an email in the following terms:

Dear Mr Ferguson,

I am writing to you in relation to the matters that are currently before the Federal Court of Hobart, namely the matter Michael Darrel Joseph Ferguson v Kane Dallow TAD31/2020

I would like to express my sincere apologies for any hardship the stories I had featured that contained information relating to you may have caused you and your family. Despite the details that have been provided by your legal counsel throughout the proceedings and the onset. I never had any intentions of causing you or your family distress on any level.

I can assure you that the running of my stories was not a platform for me to gain fame or obtain financial wealth at the expense of you or your employment position, again, despite your legal counsel stating otherwise I simply went ahead with running the stories based off the information I had received from a number of sources.

I felt at the time the story was very much in the public interest. I did reach out to you for comment via email asking you a series of questions relating to the allegations to which you chose to not respond. I believe I had provided you significant time to respond to the allegations directed to you that involved you personally.

I also advised you in the information I had provided to you directly that I would be featuring a story at a later date and encouraged you to provide a comment and/or statement of reply, again, you failed to respond to those requests. I believe it was important for you to acknowledge the questions, whether that be accept or deny the allegations put to you, but I simply never received any response by you or your office.

I feel now that after a number of ‘discussions’ between a number of parties; which include the Tasmanian Police Commissioner Darren Hines a warrant for search and seizure was executed upon me and my house was then searched by police. I believe this behaviour to be unacceptable to the point I was just doing my job as a reporter. I feel that by these recent actions by Tasmania Police are simply a personal attack towards my family and I.

Again, I would like to express my sincere apologies for any hardship, pain and suffering my stories may have been inflicted on you and your family. I want to make it very clear that my intentions were never to have you or your family feel like it was a case of you and them being attacked or I had an agenda on any part to inflict pain and suffering towards you and your family, as this was never the case.

My aim was to feature a story that I felt was in the public interest and that is all. I don’t know you personally Mr Ferguson and I have only ever met you on one occasion briefly at a press conference I was covering during the bushfires of 2018. I met you briefly when you greeted the fire fighters at a community centre where shortly after you held a short press conference. So, for your legal counsel to state that I have a gross and personal distain [sic] towards you is a completely false and a misleading statement. The details provided to the Federal Court by your legal counsel also stated that I had a total disrespect for the court and any orders imposed on me, again, that is simply not true.

I also did not gain any self-promotion despite what your legal counsel stated in court. I did not gain any higher publicity towards my website and/or YouTube channel nor did I receive any higher creditability within the media sector, in fact it was completely the opposite and I was headlined as being the person and topic of the conversation whereby anyone reading the news articles about the case (TAD31/2020) would believe that I was a person to be disbelieved and stand to be nothing more than a criminal in society.

So, in close Mr Ferguson, I would like to remind you that I did not intend to cause you or your family coupled with your employment any harm. I also want to make it very clear that I have never stated in any of my episodes that you’re guilty of the allegations nor have portrayed you to the public as being a person guilty of the allegations.

I hope you and your family are well and despite what you may think of me I hope that you as an individual and human being are doing okay? I know that this whole situation has and continues to cause distress to everyone involved and this also impacts the mental health of all who have been a part of this process.

I apologise on my part towards you and your family.

37    Mr Gunson described this as a “Clayton’s apology”. He submitted that I should not accept as genuine contrition Mr Dallow’s assertion that he never intended to make the applicant and his family “feel like it was a case of you and them being attacked or I had an agenda on any part to inflict pain and suffering towards you and your family, as this was never the case”. As Mr Gunson said, and I agree: “Now, rhetorically what else could have been the outcome of publishing these articles, but to inflict pain and suffering on Mr Ferguson and his family? It had to be the intent [as] Mr Dallow gave evidence that he knew what the serious consequences to Mr Ferguson may have been if the articles were published. And with respect to Mr Dallow, it’s self-evident that the consequences could have been absolutely drastic”.

38    Mr Gunson also submitted that I should not accept as a genuine apology Mr Dallow’s statement to the applicant that he wanted to “make it very clear that I’ve never stated in any of my episodes that you’re guilty of the allegations nor have [I] portrayed you to the public as being a person guilty of the allegations”. As Mr Gunson put it: “Well, he might not have used the word ‘guilty’ but … there’s a clear implication from the articles that Mr Ferguson had engaged in the conduct alleged. So … that apology is not really an apology of substance, in the sense that it doesn’t demonstrate real or genuine contrition …”

39    Mr Gunson also pointed to the fact that the email was sent “less than 48 hours before these proceedings were listed for hearing”, and in circumstances where “Mr Dallow knew, from our outline of submissions, that we were going to make submissions to the effect that there was no expression of genuine contrition by Mr Dallow. And, as I indicated … it’s also telling that Mr Dallow has not apologised to the court for committing the contempts. He pleaded not guilty to every one of the charges and accepted no responsibility for that”.

40    I agree that Mr Dallow has not expressed any genuine contrition, or even recognised that he has done anything wrong, persisting as he does, even in his email to the applicant, with his view that he at all times acted in the “public interest”.

The character and antecedents of the contemnor

41    It is true, as the applicant submitted, that Mr Dallow has an “appalling history” of offending, including dishonesty, fraud, and breaching bail conditions, and has served multiple sentences of imprisonment. It follows that his conduct with respect to the four contempts for which he has been adjudged guilty cannot be seen as out of character. But, for the reasons given earlier, the only relevant antecedents are contempt or similar offences. Despite his extensive criminal record, Mr Dallow has no previous convictions for contempt (or something similar).

The contemnor’s personal circumstances

42    Mr Dallow did not provide the court with much information about his personal circumstances. He is married and is 40 years old. He appears not to be employed, other than as a self-styled, self-employed journalist, nor to have any assets of significance. He and his husband, it seems, have entered into a surrogacy arrangement so that they will become the parents of a baby girl born on 11 May 2021. The baby is with Mr Dallow and his husband and they propose to raise the child as their daughter (subject, it is to be assumed, to obtaining a parentage order under the Surrogacy Act 2012 (Tas)).

43    In that regard, Mr Dallow said the following in an affidavit affirmed on 22 May 2021:

9    Should a term of imprisonment of any length be imposed as penalty to these matters, our family would be reduced to a zero income household as my husband would be forced to stop work completely to care for our newborn daughter.

10    A term of imprisonment on any scale would therefore impact the general welfare of our daughter greatly, including being able to continue to pay for rent to sustain continued living in our house and [it’s] widely known that there is a large housing shortage currently in Tasmania. This would impact the need to provide correct care including general living expenses and needs for our daughter. It would also include the responsible upbringing of a child as they progress through their life.

11    It has been widely demonstrated that children who grow up with two parents, whether that be same sex or heterosexual parents the children’s development throughout their life is of a stronger level to those who grow up in a single parent environment.

…

20    I believe any term of imprisonment would impact the mental health, not just that of my family including my daughter, but also of me.

44    The impact on Mr Dallow, his husband and his family to which he points can, however, only be taken into account in exceptional circumstances, which are not present here.

45    In R v Edwards (1996) 90 A Crim R 510 at 516-17, Gleeson CJ (James and Ireland JJ agreeing) cited with approval the following passage from R v Wirth (1976) 14 SASR 291 at 296 (Wells J):

Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court … It seems to me that courts would often do less than their clear duty – especially where the element of retribution, deterrence, or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.

But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back … hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so …

46    And as the Victorian Court of Appeal said in Markovic v The Queen (2010) 30 VR 589 at 592 [7] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA):

… the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime … to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less … to treat an offender who has needy dependents more leniently than one equally culpable co-offender who has none would ‘defeat the appearance of justice’ and be ‘patently unjust’. Hence it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.

(Citations omitted.)

47    As I said, Mr Dallow has not demonstrated any exceptional circumstances concerning his husband or his family, so I may not take what he says in that regard into account.

The need for deterrence of the contemnor and others of like mind from similar disobedience

48    A number of the considerations going to deterrence discussed by the Full Court in Kazal at 147-8 [168]ff are apposite here, namely:

(1)    Deterrence looms large in relation to both the aspect of the contempts dealing with defiance of the court’s orders and the aspect dealing with interference with the administration of justice.

(2)    Mr Dallow’s conduct was carefully planned and there was “ample opportunity for him to evaluate and to desist”.

(3)    There is a compelling need for specific deterrence of Mr Dallow himself, especially when he does not accept any relevant wrongdoing on his part – he is therefore necessarily at least at some risk of reoffending.

(4)    General deterrence of contempt, by way of both defiance of court orders and interference in the administration of justice, is of considerable importance and must now “be considered in the age of instant and widespread communication to potentially vast numbers of people via social media [because,] [i]n seconds, great harm can be done of a kind unimaginable when most of the authorities on this topic were decided”.

49    For those reasons, the need to deter Mr Dallow and others of like mind from similar disobedience – that is, the need for deterrence, both specific and general – is substantial.

The need for denunciation of contemptuous conduct

50    As the Full Court said in Kazal at 150 [175(9)], conduct of the kind that Mr Dallow has engaged in must be denounced in aid of deterrence.

Sentence

51    In my view, the only appropriate sentence in respect of each of the four contempts is a term of immediate imprisonment.

52    Taking into account each of the matters referred to above, I sentence you to serve the following terms of imprisonment:

(1)    On the charge of contempt in the statement of charge dated 8 December 2020, in respect of which you were adjudged guilty on 5 March 2021: four months.

(2)    On the charge of contempt in the statement of charge dated 18 December 2020, in respect of which you were adjudged guilty on 5 March 2021: one month.

(3)    On the two charges of contempt in the amended statement of charge dated 14 April 2021, in respect of which you were adjudged guilty on 17 May 2021:

(a)    On the first charge: four months.

(b)    On the second charge: four months.

53    There is a significant factual interrelationship between the third and fourth contempts, because both were products of the fourth video. See, eg, Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 at 328 [22]ff (Owen JA). Accordingly, I shall order that the sentences in respect of the third and fourth contempts be served concurrently.

54    I do not propose to make concurrent any part of the sentences for the first and second contempts, because they are quite separate.

55    I have also given consideration to the question of totality. See Mill v The Queen (1988) 166 CLR 59 at 62-3 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); Pearce v The Queen (1998) 194 CLR 610 at 623-4 [45] (McHugh, Hayne and Callinan JJ). It seems to me that a total effective sentence of nine months is appropriate in the circumstances.

56    A warrant shall issue for your committal to prison for a period of nine months.

57    I will also order that you pay the applicant’s costs in respect of each of the contempt applications on an indemnity basis.

Associate:    

Dated:    28 June 2021