Federal Court of Australia

Registered Clubs Association of New South Wales v Stolz (No 2) [2021] FCA 1418

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00 pm on 26 November 2021, the parties bring in agreed orders to give effect to these reasons and the agreement they have already reached on the other orders that should be made.

2.    Leave be granted to the parties to file written submissions on costs, such leave to be exercised by 4.00 pm on 26 November 2021 with submissions limited to two (2) pages.

3.    If the leave granted in Order 2 is exercised, the question of costs be determined on the papers.

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

REASONS FOR JUDGMENT

YATES J:

Background

1    This proceeding is before the Court for the determination of an interlocutory application filed by the applicant, The Registered Clubs Association of NSW (generally referred to as ClubsNSW), on 14 July 2021. In that application, the applicant seeks certain injunctive relief on the basis of a threatened contempt of court; orders to secure compliance by the respondents with previous orders providing a regime for the disclosure of documents; and an asset preservation order. The second matter is not contested beyond the form of the orders that should be made. Even then, the dispute is of limited compass.

2    In the principal proceeding, the applicant seeks a permanent injunction against the respondents, restraining them from using, disclosing, or divulging any “confidential information” and “intellectual property” defined in an employment contract and confidentiality agreement between the applicant and the first respondent, Mr Stolz; a declaration that Mr Stolz has contravened s 183 of the Corporations Act 2001 (Cth) (the Act) by using information obtained as an employee of the applicant in order to gain an advantage for himself and/or to cause detriment to the applicant; and an order for compensation pursuant to s 1317H of the Act in respect of the alleged contravention of s 183.

3    Although the proceeding has been on foot for some time, no pleadings have yet been filed. Matters are still at an early stage. Even so, the basis for the applicant’s claims are clear and are briefly explained in Registered Clubs Association of New South Wales v Stolz [2021] FCA 576 at [4] – [5] given on 1 June 2021 (the June judgment).

4    In essence, the applicant says that, after his employment ceased, and in breach of his obligations, Mr Stolz did not return all the applicant’s documents and information that he had obtained during the course of his employment. It says that Mr Stolz disclosed and misused that information.

5    The applicant contends that it is noteworthy that Mr Stolz’s conduct included the disclosure and use of its confidential information to further his own business and commercial interests, or to seek employment with businesses competing with it. Mr Stolz also disclosed documents and information to various persons, including a Member of the Commonwealth Parliament and certain journalists. However, the applicant contends that the “vast majority” of Mr Stolz’s communications related to the pursuit of his own commercial interests, using confidential information belonging to it.

6    The proceeding was commenced on 7 April 2020. On 22 April 2020, the respondents, who have been legally represented throughout the proceeding (their representation has changed from time to time), consented to a documentary disclosure regime permitting a forensic analyst (the independent expert) to inspect the respondents’ electronic devices, and email and online accounts, to identify information he believed to be: (a) confidential information or (b) intellectual property belonging to the applicant, or (c) information that was evidence of the use, transfer, copying, or disclosure, by either respondent, of that confidential information or intellectual property (the disclosure regime). The disclosure regime provided the opportunity for the respondents’ solicitors to raise, on a per item basis, any objection to the forensic analyst providing the results of his work to the applicant or its solicitors. These orders were varied on 5 June 2020 in certain respects which do not require comment.

7    The proceeding was allocated to my docket on 16 November 2020.

8    On 16 April 2021, I heard two interlocutory applications.

9    The first was a further amended interlocutory application brought by the applicant. In that interlocutory application, the applicant sought leave to use, in other proceedings, certain documents produced pursuant to the disclosure regime. The other proceedings were: (a) a claim commenced by Mr Stolz against the applicant under the Fair Work Act 2009 (Cth), which also made other claims, including claims in defamation; and (b) a workers compensation claim made by Mr Stolz in which he alleges that he suffered a psychological injury arising out of, or in the course of, his employment with the applicant, and that his employment was a substantial contributing factor of the injury. I was persuaded that leave to use the documents should be granted: June judgment at [43] – [78].

10    In that interlocutory application, the applicant also sought an order that certain documents be produced to the applicant, being documents that had already been produced by the respondents to the independent expert, and analysed by him, pursuant to the disclosure regime.

11    As argued, that aspect of the interlocutory application concerned two groups of documents. The first group of documents was referred to as the Annexure K documents. The second group of documents concerned documents sourced from certain email and cloud accounts which the respondents had not initially disclosed pursuant to the disclosure regime. I concluded that both groups of documents were required to be produced by the respondents pursuant to the disclosure regime: June judgment at [10] – [42].

12    It is important to understand that this question was determined solely as a question of construction of the orders and the provisions of the disclosure regime to which the respondents had consented on 22 April 2020.

13    It is also important to understand that, although at one time the respondents made claims of legal professional privilege and parliamentary privilege in relation to the production of a number of documents, they did not pursue, or did not make out, those claims.

14    In this connection, the respondents withdrew their claims that certain documents otherwise required to be produced under the disclosure regime were protected by parliamentary privilege: June judgment at [9]. This was obviously done with the benefit of legal advice. I can only conclude that the legal basis for making this claim was reassessed and that the considered view was taken that none of the documents in question were protected by parliamentary privilege. I would add that, such claims having been withdrawn, no party took me to, or brought my attention to, any specific document which, arguably, could be the subject of such a claim. It follows that I was not called upon to consider, and did not determine, any claim of parliamentary privilege in respect of any of the documents.

15    As to the question of legal professional privilege, the respondents failed to articulate a proper basis on which these claims could be made good: June judgment at [41].

16    Further, in the first interlocutory application, the applicant sought leave to withdraw certain admissions that were deemed to have been made consequent upon the applicant failing to make a timely response to a notice to admit. I was persuaded that leave to withdraw the admissions should be granted: June judgment at [79] – [91].

17    The second interlocutory application before the Court was brought by the second respondent, Mrs Stolz, seeking an order that the proceeding against her be dismissed summarily. I was not persuaded that it would be appropriate to grant that relief: June judgment at [92] – [96].

18    The respondents have not sought leave to appeal from the June judgment.

19    I mention this background because the findings and conclusions I reached in the June judgment are relevant to the circumstances giving rise to the applicant’s present application for interlocutory injunctive relief against Mr Stolz, to which I now turn.

The application for injunctive relief

Introduction

20    The applicant contends that Mr Stolz has waged, and threatens to continue to wage, an inflammatory media campaign against it, which misrepresents the nature of the principal proceeding, the June judgment, and the applicant’s conduct of the proceeding, as an attempt to silence a “whistleblower” and to interfere with parliamentary privilege. The applicant contends that Mr Stolz’s evident purpose in waging this campaign is to bring, impermissibly, pressure to bear on it so as to cause it to cease pursuing its claims against him. This, the applicant contends, is a clear case of conduct that has a tendency to interfere with the due administration of justice, and should be restrained.

21    In oral submissions, counsel for the applicant, Mr Withers SC, put the applicant’s position this way:

… [The applicant is] seeking to have this dispute resolved by the court on its legal merits without interference and improper pressure being placed upon it. Having regard to some of the comments that have been made in the first respondent’s submissions, we want to make it clear at the outset that the applicant is not seeking to suppress or silence media coverage of this case.

The media are free to listen and report on these proceedings and make fair comment on the proceedings. And nor is the applicant seeking to restrain the first respondent from speaking publicly about the topics of gambling or money laundering. What the applicant’s concerned about and the basis for the application today … is a litigant seeking to use the media to put improper pressure on another litigant in relation to the conduct of legal proceedings in your Honour’s court, including publishing solicitor correspondence from my client and misrepresenting the nature of the proceedings and judgments of the court.

Now, I will develop this as I go through the submissions today, but these are not matters of fair comment at all, your Honour. We say that these are the matters which tend to – into the administration of justice and which … if they continue unrestrained may well amount to a contempt of court. …

22    The applicant seeks the following injunctive relief (according to its draft proposed orders):

Injunctions in aid of administration of justice

1.    Until the conclusion of the proceeding or further order, the first respondent be restrained from:

a.     publishing any statement online or through any other public media to the following effect:

    “My ex-employer has the right to access to communications of my medical records and reports in my workers compensation proceedings as well as all personal and private communications that I’ve had, with whoever.

    Essentially, Justice David Yates has ruled any communication by a constituent, member of the public, a whistleblower reporting serious criminal activity to a politician, is open slather and will be furnished to the person or entity committing the crime. They are entitled to all communications. Breach of confidentiality in an employment contract, over rides whistleblower protection.”

b.    publishing online or through any other public media correspondence received from the solicitors for the applicant in connection with this proceeding without the consent of the applicant;

c.    publishing or making statements to any media outlet that purport to comment on the applicant’s purpose in maintaining these proceedings or the applicant’s conduct in these proceedings;

d.    taking any steps designed to cause any other person to publish or make statements about [the] applicant’s purpose in maintaining these proceedings or the applicant’s conduct in these proceedings; and

e.    otherwise publishing or threatening to publish any statements which are calculated to intimidate, harass or otherwise bring improper pressure on the applicant, including its officers, employees or agents, in respect of the conduct of the proceedings.

The evidence

23    The applicant relies on two affidavits by its solicitor on the record, Ms Fernandez (14 July 2021 and 18 August 2021). Amongst other things, these affidavits deal with the history of the proceeding and provide a comprehensive account of the media campaign to which the applicant takes exception.

24    The applicant also tendered documents which show that, despite the bringing of the present interlocutory application, Mr Stolz was continuing this campaign as late as the business day before the hearing of the present interlocutory application.

25    This evidence was not challenged. Further, Mr Stolz has not adduced evidence in answer. I have before me, therefore, an uncontested body of evidence. Mr Stolz does contend, however, that no injunction should be granted.

Findings of fact

26    The focus of the evidence is on matters arising after the June judgment—although, as I will explain, the conduct of which the applicant complains commenced earlier.

27    On 5 June 2021, an article was published in The Guardian under the headline: Andrew Wilkie warns he will have ‘a lot to say’ in parliament about whistleblower’s battle with ClubsNSW. On 15 June 2021, an article was published in The Sydney Morning Herald under the headline: ‘Very disturbing’: Gambling whistleblower ordered to pay legal costs of gaming lobby. On the same day, another article was published in The Guardian under the headline: ClubsNSW threatens to try to force media to hand over emails with pokies whistleblower.

28    The three articles referred to the principal proceeding against the respondents and contained reference to aspects of the June judgment, including the fact that the respondents were required to “hand over documents” and were ordered to pay costs.

29    As the June judgment makes clear, in April 2020, the parties agreed on a regime for the disclosure and production of documents by the respondents. On 22 April 2020, the Court was asked by the parties to put that regime into place. There was no contest about that matter. The Court was not called upon to make any adjudication in relation to it. It was simply asked by the parties to make orders by consent—which it did. It must follow that the respondents accepted that there was a sufficient legal foundation for the making of the orders.

30    I should add that the orders made on 22 April 2020 were supported by cross-undertakings. The undertakings given by the respondents were:

…

D.    The Respondents will destroy or return (as directed by ClubsNSW) any physical documents in their possession, custody or control, including those in the possession, custody or control of the Respondent’s solicitors, which contain or refer to information about:

(a)     the Applicant’s business, including but not limited to programs or activities conducted or superintended by the Applicant or in which the Applicant assists or acts for its members and clients, including but not limited to ClubSAFE, Liquor & Gaming Audits, compliance programs, business proposals and risk reports;

(b)    its members and/or customers;

(c)    current and former employees, contractors and other staff of the Applicant, including but not limited to staff turnover rates, salaries and bonuses,

(ClubsNSW Information).

E.    The Respondents will not use or disclose any documents or information covered by undertaking D above.

31    It is important to understand that these were undertakings proffered by the respondents. They were not orders made by the Court against them, although, being undertakings given to the Court, the respondents are bound by them as if orders to the same effect had been made.

32    As events transpired, the respondents failed to comply fully with the regime to which they had agreed. This was part of the reason for the applicant bringing the interlocutory application that led to the June judgment. As the applicant was successful on that application, and as Mrs Stolz was unsuccessful on the other application that was then before the Court (Mrs Stolz’s application for summary dismissal), the respondents, as the unsuccessful parties, were ordered to pay costs. Such an order, in such circumstances, simply follows the prima facie rule that costs follow the event. These circumstances are not brought to light in the articles.

33    The extent of Mr Stolz’s involvement in the content of the articles is not clear. What is clear is that he had some input into their content. A number of quotes are attributed to him. What is more, the articles published in The Sydney Morning Herald and The Guardian on 15 June 2021 refer to and quote from correspondence sent by the applicant’s solicitors to the respondents’ then solicitors. I infer that this correspondence was provided to the authors of the articles by Mr Stolz himself, or by someone on his behalf.

34    Other correspondence in evidence shows that Mr Stolz is not averse to contacting journalists with a view to suggesting how they might report on the applicant’s claims. For example, on 27 February 2020, emails were sent to two journalists using Mr Stolz’s email account. The emails attached a letter that had been sent by the applicant’s solicitors to the respondents’ then solicitors.

35    The email to one journalist read:

Some media coverage on ClubsNSW blatant attempt to get square with the whistleblower, would be good.

36    The email to the other journalist (from The Sydney Morning Herald) read:

A blatant attempt to get square with the whistleblower, would be good.

37    These emails were sent before the principal proceeding was commenced, at a time when the applicant’s solicitors and the respondents’ then solicitors were engaging in without prejudice correspondence in relation to what the applicant regarded to be Mr Stolz’s unauthorised possession and disclosure of ClubsNSW’s property. On their face, the emails show that Mr Stolz (or someone using his email address) was providing material to journalists, with the suggestion that they should write articles with a particular theme—namely, that the applicant’s claim against the respondents were being advanced by it simply as an act of retribution because Mr Stolz was a “whistleblower”.

38    Returning to the articles published on 15 June 2021, one letter that is mentioned is dated 3 June 2021. The letter recorded the fact that the June judgment had awarded costs against the respondents. It noted that the respondents had listed their property at Wongarrah in New South Wales, for sale. The letter expressed the applicant’s concern that the respondents might be taking steps to diminish the value of their assets in the face of the current litigation and that the proceeds from the sale of the property might not be available to satisfy the costs order that had been made. The letter requested the respondents to advise whether they would be prepared to deposit an amount of $150,000 into an interest-bearing controlled monies account operated by their then solicitors.

39    The respondents’ then solicitors responded on 4 June 2021. The respondents said that, without acknowledging any obligation to do so, they would be prepared to deposit an amount of $50,000 from the sale of the property into such an account. In order for this offer to be considered by the applicant, the respondents said that they would not enter into any contract for sale with a settlement date of not less than 30 days from the date of the contract, and would provide the applicant with notice of any contract and its likely settlement date.

40    On 15 June 2021, after further correspondence from the applicant’s solicitors, the respondents expressed their preparedness to increase the amount of the deposit to $60,000. Thus, as at 15 June 2021, negotiations were still taking place between the parties on what sum should be set aside in a controlled account. These matters are not referred to in the two articles.

41    The other letter referred to in the articles is dated 11 June 2021. This letter relates to one aspect of the respondents’ failure to comply with the disclosure regime. It concerns a “Protonmail” account used by Mr Stolz to contact journalists, including a journalist from The Sydney Morning Herald, and a journalist from the Australian Broadcasting Corporation.

42    The evidence describes Protonmail as secure email based in Switzerland, which uses end-to-end encryption. Protonmail accounts can be set up anonymously, without the need to provide personal information.

43    The following is provided as further background to this correspondence.

44    On 15 December 2020, I made an order that the respondents serve affidavits containing login or other access details in respect of a number of email accounts which, on investigation by the independent expert, the respondents had failed to disclose as required by the disclosure regime to which they had agreed, including the Protonmail account.

45    In an affidavit made on 22 December 2020, Mr Stolz acknowledged that he had used the Protonmail account to contact journalists. He said, however, that he could not remember the password for the account and was unable to reset the password, despite having sent emails to the account as recently as 28 February 2020.

46    For reasons which I need not explain in detail (but which are addressed in the evidence), the applicant raised its concern that Mr Stolz had not made a genuine attempt to provide access to the Protonmail account, as he had been ordered to do.

47    In correspondence passing between the applicant’s solicitors and the respondents’ then solicitors, the respondents authorised the independent expert to reset the password to the account and create a copy of its metadata. However, for various reasons, the independent expert could not reset the password and the Protonmail account could not be accessed.

48    In the 11 June 2021 letter, the applicant’s solicitors noted Mr Stolz’s acknowledgement that he had used the Protonmail account to communicate with the two journalists. They asserted, on the applicant’s behalf, an entitlement to investigate the extent of Mr Stolz’s unauthorised disclosure of its confidential information, and to recover the information that had been disclosed. As to this, the applicant’s solicitors said:

… ClubsNSW is presently considering invoking the Court’s power to compel the Sydney Morning Herald and the Australian Broadcasting Corporation to produce their communications with Mr Stolz. We take it that your client will not object to this course of action in circumstances where he has admitted to providing the above journalists with our client’s confidential information. Please confirm your client’s position. …

49    In their letter, the applicant’s solicitors stated that if compulsory disclosure became necessary (I infer, by subpoena), they proposed to provide the two journalists with any correspondence received on behalf of Mr Stolz to the effect that he did not oppose their compliance with the Court’s process and had, in fact, consented to the issue of that process.

50    Although expressed in a somewhat roundabout way, the intent of the letter is clear. The letter was advancing a proposal and seeking Mr Stolz’s assistance—namely, signifying, for the benefit of the two journalists, that he, personally, did not have objection to them producing the documents that he had given them. This assistance was requested in circumstances where, subject to the disclosure regime, Mr Stolz was required to produce the documents himself, but was apparently unable to do so.

51    The respondents’ then solicitors only responded to this letter on 22 June 2021, one week after publication of the two newspaper articles to which I have referred. They disputed a number of matters, and concluded by stating:

6.     In any event, the applications your client has foreshadowed against [the two journalists] are matters for it and it is not a matter that our client needs to comment upon at this stage.

52    While, as between parties to the proceeding, Mr Stolz did not choose to make his own comment, he did choose to place the applicant’s solicitors’ letter of 11 June 2021 into the hands of the two newspapers. I infer that he did so in the knowledge that the letters would provide material on which the two newspapers might themselves pass comment in their reportage.

53    The applicant submits that its proposal to resolve the issue of the Protonmail account by seeking to have the two journalists provide the documents, when apparently Mr Stolz could not (even though he was obliged to do so), was an entirely sensible one. However, rather than providing a timely and appropriate response by communications between solicitors, Mr Stolz took the deliberate course of providing his solicitors’ correspondence to The Sydney Morning Herald and to The Guardian. The applicant submits that this was done by Mr Stolz with the object of the two newspapers portraying its proposal as an attempt by it to silence the media. This is certainly how Mr Stolz explained the letter to the media: see the quotation at [54] below.

54    In the article published by The Sydney Morning Herald, the author refers to aspects of the June judgment, and then, in relation to the two letters, states:

…

Since the ruling, Mr Stolz has received two letters from law firm Thomson Geer, acting for ClubsNSW, threatening further legal action.

One sent on June 3 says ClubsNSW will take him back to court if he doesn’t pay a $150,000 deposit for the costs awarded against him after he listed his house in Woongarrah, on the NSW Central Coast, to fund the legal battles.

A subsequent letter sent on June 11 threatens to invoke the court’s power to force journalists Nick O’Malley from The Sydney Morning Herald and Steve Cannane from ABC to hand over their communications with Mr Stolz after publishing reports that NSW pokie venues were breaking money laundering and terrorism finance laws.

“I’ve got to tell my kids, and my 19-year-old son with autism, that we’ve got to sell the house to keep fighting this,” Mr Stolz told The Age and The Sydney Morning Herald.

“They want to use the court system to run me out of money. They’re using ClubsNSW money against me, which is meant to be for the betterment of the industry.

“I never thought I’d have to sell my house for reporting criminal activity in clubs. I feel like I’m on my own.”

…

55    In the article published by The Guardian, the author states:

New South Wales’ powerful club lobby is considering using the courts to force two journalists to hand over email communications they had with a poker machine whistleblower.

ClubsNSW is also demanding that the whistleblower, Troy Stolz, set aside $150,000 from the sale of his house on the Central Coast to cover its court costs.

Stolz said the attempt to force journalists from the ABC and the Sydney Morning Herald to hand over their correspondence with him is a “disgrace”, designed to cow the media into silence.

“It’s a public interest matter that affects all communities,” he told Guardian Australia. “It’s a national security issue. They are trying to silence the media from reporting on the truth.”

On Friday, ClubsNSW’s lawyers wrote to Stolz asking that he give the group access to an encrypted Protonmail account, which he used to communicate with the ABC journalist Steve Cannane and the Herald journalist Nick O’Malley.

The letter, sent by the law firm Thomson Geer, warned that ClubsNSW may compel the two media outlets to hand over their correspondence with Stolz.

…

56    After reporting on other matters, The Guardian article returns to the June judgment, and says:

…

The decision also financially crippled Stolz. Costs were awarded against him, and the whistleblower says his legal bill has now hit $600,000.

In a separate letter, Thomson Greer said it had become aware that Stolz has sold a home in Woongarrah. It told Stolz he must put $150,000 from the proceeds of sale into an account controlled by his lawyers to cover ClubsNSW’s costs.

“In the event a satisfactory response is not received, or your clients refuse to provide the above requested undertaking, ClubsNSW expressly reserves the right to approach the court to seek asset preservation orders.”

Despite the mounting costs, Stolz said he would still have blown the whistle on something he saw to be in the public interest.

“I never anticipated I would be financially and reputationally ruined by reporting a crime to my employer, Asic and politicians,” Stolz told Guardian Australia. “It is a public interest matter and due to affording criminals the opportunity to use NSW Clubs pokies as a vehicle to launder money obtained through organised crime, it’s a matter of national security.

“I would have still done it, regardless of the damage to my health, family and financially. The public, the community deserve better.”

…

57    On the following day, 16 June 2021, Mr Stolz published a Twitter post containing a link to The Guardian article, with the caption:

The importance of whistleblowing and parliamentary privilege in this Country is at risk. We need to protect both.

58    As I have previously made clear, the June judgment did not deal with, and made no findings, in respect of any question of parliamentary privilege. The claim that the documents were subject to parliamentary privilege was withdrawn. Further, as I explain in more detail below, the June judgment had nothing to do with “whistleblowing”.

59    In a subsequent Twitter post, Mr Stolz again published a link to The Guardian article, with the caption:

To voice your complaint about the behaviour of ClubsNSW and its corporate bullying, call 1800 99 77 66 or 92683069 clubsafe@clubsnsw.com.au or enquiries@clubsnsw.com.au #bashwhistleblowers #moneylaundering #CorruptionBarometer #gamblingreform

60    On about 16 June 2021, Mr Stolz commenced an online crowdfunding campaign hosted by GoFundMe. In that campaign, Mr Stolz referred to himself as a whistleblower who “blew the whistle on the alarming scale of money laundering in NSW Clubs”. He said that he has been “taken to court by ClubsNSW” because he is a whistleblower. He said that his legal battle had taken a serious toll on his mental health and finances, as well as affecting his family.

61    The GoFundMe page continues:

…

As a result of losing an interlocutory application for costs brought on by ClubsNSW, NSD 405 of 2020-Registered Clubs Association of New South Wales v Stolz [2021] FCA 576, I have had costs awarded against me in the vicinity of $150k to $300k., by Justice Yates in the Federal Court of Australia.

ClubsNSW has won the right to use documents that I, a “whistleblowing” former anti-money laundering compliance auditor, was made to produce in a confidentiality case before Justice Yates, in two other proceedings.

Judge Yates has ordered correspondence between a staffer in Andrew Wilkie MP [sic] Office and myself, who is not subject to privilege. It will be handed over to ClubsNSW.

ClubsNSW is meanwhile separately suing me and my wife in the Federal Court for allegedly breaching a confidentiality agreement by leaking a board document to independent MP Andrew Wilkie (see Related Article).

An application for summary judgment filed by my wife against ClubsNSW was dismissed by Justice Yates. The Judge has awarded costs, anticipated to be in the vicinity of $300,000 against me.

The whistleblower legislation has failed on this occasion to protect a whistleblower and is a farce.

My ex-employer has the right to access all communications of my medical records and reports in my workers compensation proceedings as well as all personal and private communications that I’ve had, with whoever.

Essentially, Justice David Yates has ruled any communication by a constituent, member of the public, a whistleblower reporting serious criminal activity to a Politician, is open slather and will be furnished to the person or entity who are committing the crime. They are entitled to all communications. Breach of confidentiality in an employment contract, over rides [sic] whistleblower protection.

As a result of litigation, I am now forced to sell my home. ClubsNSW are not entitled to receive their costs until the end of the proceedings, but are now seeking I put $150k into a trust account, to protect their costs order.

Please find some links below with some further information about my story and if you can donate anything, it would really mean a lot to me and the cause I am fighting for.

(Original emphasis.)

…

62    A number of statements on this page require correction. I will not attempt to address all of them, although the following matters are particularly important.

63    First, by omission, the GoFundMe page does not explain the reason why Mr Stolz was required to produce documents. By reason of the June judgment, the applicant had not “won the right to use documents”. Put simply, the respondents were required to produce documents because they had agreed to produce them under a disclosure regime in respect of which consent orders had been made. The June judgment deals with the respondents’ failure to comply with the disclosure regime, and thus the orders to which they had consented.

64    Secondly, the June judgment was not dealing with an interlocutory application for costs. I have described the matters dealt with by the June judgment at [8] – [19] above.

65    Thirdly, although, for the reasons explained in the June judgment, an order for costs was made against the respondents, no order was made quantifying those costs. To be clear, costs in the vicinity of $150,000 – $300,000 were not awarded against Mr Stolz. The amount of costs to which the applicant is entitled as a result of the costs order will, if disputed, be determined, if necessary, by taxation in the usual way.

66    Fourthly, I did not make an order, in terms, that correspondence between a staffer in the office of Mr Andrew Wilkie MP and Mr Stolz be “handed over” to the applicant. The orders I made were directed to compliance with the regime. That regime, in turn, was for the disclosure and production of documents that the independent expert, on analysis, believed to be confidential information or intellectual property belonging to the applicant, or which evidenced (in effect) the use of that information or property by the respondents.

67    Ms Fernandez has deposed (in her affidavit of 14 July 2021) that, of all the documents that have been produced following the June judgment, only five communications have been identified as being exchanged with Mr Wilkie and his office. I have not been taken to that correspondence; but if it is correspondence between a staffer in Mr Wilkie’s office and Mr Stolz, it was required to be produced because of the respondents’ agreement to do so in accordance with the disclosure regime put in place by the consent orders of 22 April 2020.

68    Fifthly, I did not make any ruling to the effect that any communication by a constituent to a parliamentarian, reporting serious criminal conduct, is “open slather and will be furnished to the person or entity who are committing the crime”.

69    Sixthly, to the extent the statements in the GoFundMe page, referred to in [66] – [68] above, might be understood as conveying that, by the June judgment, the Court made orders overriding a properly articulated claim for parliamentary privilege, I repeat that no claim of parliamentary privilege was advanced by the respondents against the production of documents the subject of the June judgment. The claim of parliamentary privilege was withdrawn. As I have said, I can only conclude that the legal basis for initially making this claim was reassessed and that the considered legal view was taken that none of the documents in question was protected by parliamentary privilege.

70    Seventhly, the GoFundMe page refers to “whistleblower legislation” having failed. This suggests that, by dint of the June judgment, Mr Stolz was adjudged not to be a whistleblower. However, the respondents did not advance any whistleblower protection claims or suggest that their failure to comply with the disclosure regime was excused by any legislation, let alone whistleblower protection legislation. To be clear, the respondents’ contention at the hearing leading to the June judgment was that they were not required to produce certain documents having regard to a particular construction they chose to place on the orders of 22 April 2021. I rejected their contention. The respondents’ contention had nothing to do with the claim that Mr Stolz was a whistleblower.

71    I emphasise this matter because, in later correspondence, the respondents’ then solicitors endeavoured to explain the statement:

The whistleblower legislation has failed on this occasion to protect a whistleblower and is a farce. …

as conveying that whistleblower legislation did not protect Mr Stolz because, unconnected with the June judgment, he does not fall within the relevant preconditions for the operation of that protection.

72    I do not accept that this is how this sentence would be understood when read in the context of the GoFundMe page. The GoFundMe page purports to explain Mr Stolz’s need for funds because of the outcome of a legal proceeding in which he, as a whistleblower, was adjudged liable to produce documents, and suffered an adverse order for costs in the process. The only possible “occasion” referred to is the occasion of the court proceeding, as Mr Stolz chose to describe that proceeding. The GoFundMe page is not a discourse on the preconditions of legislative whistleblower protection. It is a discourse on the court proceeding. Seen in context, the sentence quoted above plainly suggests that an adverse finding on whistleblower protection was made in the court proceeding to which Mr Stolz refers, which decision made that protection, in Mr Stolz’s case, a “farce”.

73    Eighthly, I did not order that the applicant be granted access to all Mr Stolz’s “personal and private communications … with whoever”. Once again, the June judgment concerned the respondents’ need to comply with court orders to which they consented, and with a disclosure regime with which they had agreed.

74    On 16 June 2021, Mr Stolz published a Twitter post containing a link to his GoFundMe page with the caption:

Troy Stolz VS ClubsNSW Legal Fund

75    On 18 June 2021, he published a Twitter post which included an excerpt from the applicant’s solicitors’ letter of 3 June 2021, with the caption:

Bash the whistleblower into submission. Intimidation, bullying. Doesn’t look like a not-for-profit organisation to me. The ATO should have a long hard look at their financials. $17 million a year received from the joint 50% ownership of Keno.

76    In a letter dated 18 June 2021, the applicant’s solicitors wrote to the respondents’ then solicitors drawing attention to a number of misstatements on the GoFundMe page. The letter concluded by stating:

In light of its misleading contents, it is unconscionable to Mr Stolz to maintain the [GoFundMe page] in order to solicit funds from the general public.

We request that Mr Stolz immediately take down the [GoFundMe page] and return all funds donated to date to the relevant donors.

We await your urgent response confirming compliance with the above. Should Mr Stolz failed to do so by close of business on Monday, 21 June 2021, we will raise our concerns directly with GoFundMe and the Court. …

(Original emphasis.)

77    In response to the request to take down the GoFundMe page, the respondents’ then solicitors sent the following letter dated 22 June 2021 (formal parts omitted):

Stolz & Anor ats The Registered Club Association of NSW

1.    We refer to your correspondence of 18 June 2021 with respect to our client’s GoFundMe Page.

2.     Our client rejects your allegations and your request to take down the Page.

3.     In any event, the judgment of Judge Yates is readily and publicly available to all members of the public on the internet. There is no basis to allege that members of the public can be misled.

4.    In any event, in order to alleviate your client’s concerns, our client intends to publish your correspondence in full on his GoFundMe Page so that those existing and potential donors can form their own views in relation to your client’s protest.

78    The applicant’s solicitors objected to their letter being published in this way. The respondents’ then solicitors replied by stating that only the paragraph under the heading “Your response” in the applicant’s solicitors’ letter of 18 June 2021 would be reproduced on the GoFundMe page.

79    I do not know whether this paragraph of the letter of 18 June 2021 was reproduced on the GoFundMe page. If it was, I question the appropriateness of publishing the applicant’s solicitors’ correspondence to the respondents’ solicitors, or any part of it. But even if it was reproduced, it would hardly stand as a meaningful correction. Further, I do not think that it was an adequate response for the respondents’ then solicitors to say that the June judgment was publicly available on the Internet. This did not deal with the terms in which the GoFundMe page was, itself, expressed. This has the appearance of turning a deaf ear to important and seriously raised concerns. Mr Stolz was obviously content to leave the GoFundMe page substantially uncorrected in respect of those aspects which the applicant had identified as misleading.

80    On about 23 June 2021, a commentator published a Twitter post containing a link to the GoFundMe page, with the caption:

Am hearing that the charmers at Clubs NSW are sending legal threats demanding that @TroyStolz take down his Go Fund Me page and refund the money. Another strong reason to get behind this noble Davis vs Goliath [sic] whistleblower cause: gofundme.com/f/troystolz?ut … @Nick_Xenophon @WilkieMP

81    This post appears to be referring to the applicant’s solicitors’ letter dated 18 June 2021. Mr Stolz, or someone on his behalf, must have informed the commentator about the request to take down the GoFundMe page, and to return the funds that had been donated in reliance on the statements that had been made. But I infer that the commentator was not apprised of the concerns that the applicant’s solicitors had raised. Had those concerns been known, they would have given reason to pause before making this post. Mr Stolz re-tweeted the post.

82    On 24 June 2021, an article was published in The Guardian under the headline: ClubsNSW demands pokies whistleblower stop crowdfunding for court case. This article referred to the fact that Mr Stolz had received a letter from the applicant’s solicitors demanding that he take down the GoFundMe page and return the donated funds. It is clear that the letter of 18 June 2021 had been provided to The Guardian, because the article quotes passages from it. The article contains the following:

Stolz told the Guardian the threat regarding his GoFundMe page showed “the extreme lengths that ClubsNSW will go to, to punish a whistleblower”.

“Not only are they suing me in the federal court, they have previously demanded that I put $150,000 aside from the sale of my house to pay their legal costs and now they want to deprive my supporters of the opportunity to help me through the GoFundMe page”, he said.

83    The applicant subsequently received abusive correspondence, the sending of which they attribute to Mr Stolz’s public statements about the proceeding. Three examples of such correspondence, received by the applicant on 25 June 2021, are in evidence.

84    The first example is:

Your blood sucking organisation is just a parasite. I hope that the people that fight to take money off those who can’t afford it have your consciences pull you out of restful sleep for the rest of your lives in a cold sweat and a soiled bed.

85    The second example is:

Way to go being utter gutter trash. You tax the poorest, target the weakest and then throw a strop when you get outed. Your actions portray your intent. I donated to the other guy.

86    The third example is:

“ClubsNSW demands pokies whistleblower stop crowdfunding for court case”

You people simply practice legal thievery – best thing you could do is close all gambling activities.

87    The content of the last two examples indicates that at least these communications were sent as a consequence of public statements made by Mr Stolz, or of statements made by others based on Mr Stolz’s statements, about the proceeding. I accept that the sending of these particular examples must have been motivated by the statements made by Mr Stolz on the GoFundMe page.

88    On 25 June 2021, the applicant’s solicitors again wrote to the respondents’ then solicitors. In that letter, they outlined the applicant’s concerns in relation to Mr Stolz’s media campaign—namely, that Mr Stolz was representing to the media, and to the world at large, that the applicant:

(a)    has bullied, and is continuing to bully, Mr Stolz;

(b)    was trying to silence the media;

(c)    was misusing its funds in pursuing its present claim against Mr Stolz;

(d)    was prepared to go to extreme lengths to punish a whistleblower; and

(e)    was trying to stop Mr Stolz from obtaining financial support through his GoFundMe page.

89    On 2 July 2021, the respondents’ then solicitors responded. They denied that Mr Stolz had engaged in a media campaign designed to pressure the applicant, and that he had misrepresented the June judgment. However, they advised that, without admissions, and on a without prejudice basis, Mr Stolz would make changes to his GoFundMe page, specifically that Mr Stolz would:

(a)    state that it is his opinion that the costs awarded against him would be in the vicinity of $150,000 – $300,000;

(b)    remove the following text: The whistleblower legislation has failed on this occasion to protect a whistleblower and as a farce. My ex-employer has the right to access all communications of my medical records and reports in my workers compensation proceedings as well as all personal and private communications that I’ve had, with whoever. Essentially, Justice David Yates has ruled any communication by constituent, member of the public, a whistleblower reporting serious criminal activity to a Politician, is open slather and will be furnished to the person or entity who are committing the crime. They are entitled to all communications. Breach of confidentiality in an employment contract overrides whistleblower protection; and

(c)    post a link to the June judgment.

90    The respondents’ former solicitors said that Mr Stolz would make these changes by close of business on 5 July 2021.

91    On about 5 July 2021, the GoFundMe page was updated to include a link to the June judgment. However, according to Ms Fernandez, the GoFundMe page remained the same in substance.

92    On 16 July 2021, a sealed copy of the present interlocutory application, and Ms Fernandez’s affidavit of 14 July 2021, was served by email delivery to the respondents’ then solicitors. The following morning (17 July 2021) an article was published in The Guardian under the headline: ClubsNSW seeks court order to stop pokies whistleblower speaking to media. This article inspired a number of posts on Twitter.

93    On 22 July 2021, an article was published by Crikey.com.au under the headline: ClubsNSW has made a bid to silence a whistleblower. Instead, it may have turned up the volume on corruption claims. The article contained the following:

ClubsNSW is today seeking a gag order against former employee and whistleblower Troy Stolz, who has spoken out against the “alarming” scale of money laundering in pokies rooms at local clubs and pubs across the state.

The lobby group is trying to stop him from speaking to journalists while it sues him for blowing the whistle on alleged money laundering through the state’s poker machines.

Xenophon Davis, the law firm run by former South Australian senator Nick Xenophon and ex-journo Mark Davis, is now taking on the case in a sign of the growing momentum behind the whistleblower’s cause.

“It’s an honour to represent Troy Stolz, a person of great courage, who is up against the power of gambling and lobbying behemoth that is ClubsNSW,” Xenophon told Crikey.

The legal battle between Stolz and ClubsNSW has been winding its way through the federal court for more than a year via multiple actions between both parties.

But the dramatic intervention risks elevating Stolz to a more prominent voice than when he initially spoke out last year.

…

94    The applicant’s present interlocutory application does not seek an order restraining Mr Stolz from speaking to journalists about this proceeding. However, this article inspired a number of posts on Twitter, including from the respondents’ current solicitors.

95    Correspondence in relation to the GoFundMe page continued in the period up to the hearing of the present interlocutory application. On 12 August 2021, Mr Stolz’s current solicitors wrote to the applicant’s solicitors, stating their understanding that, on 14 July 2021, Mr Stolz removed the following text from the GoFundMe page “on a without admission and without prejudice basis”:

a.    “My ex-employer has the right to access to all communications of my medical records and reports in my workers compensation proceedings as well as all personal and private communications that I've had, with whoever.

b.    Essentially, Justice David Yates has ruled any communication by a constituent member of the public, a whistleblower reporting serious criminal activity to a Politician, is open slather and will be furnished to the person or entity who are committing the crime. They are entitled to all communications. Breach of confidentiality in an employment contract, overrides whistleblower protection.”

96    Mr Stolz’s current solicitors said, however, that they saw “no compelling basis” to remove the following statement which, they said, was “our client’s genuine belief”:

The whistleblower legislation has failed on this occasion to protect a whistleblower and is a farce.

97    This response is curious given that Mr Stolz’s former solicitors informed the applicant’s solicitors, on 2 July 2021, that this statement would be removed by close of business on 5 July 2021: [90] above.

98    On 19 August 2021, two business days before the hearing of the present interlocutory application, Mr Stolz posted the following on Twitter:

Here we go again. ClubsNSW bashing the whistleblower. Federal Court of Australia, NSW Registry. NSD405/2020 THE REGISTERED CLUBS ASSOCIATION OF NSW v TROY GRAHAM STOLZ & ANOR Monday 23-Aug-2021@10:15-Interlocutory Hearing-Justice Yates-Virtual Recorder Five, By Web Conf.

99    On the following day (20 August 2021), a replying Tweet was posted:

Wasn’t Yates allegedly compromised at a judgement having a conflict of interest with the plaintiff in a case. [sic]

100    Mr Stolz retweeted this post.

101    I do not know what incident this post is referring to, or the basis for it. I raised the matter at the hearing of the present interlocutory application:

HIS HONOUR:     Before you sit down, Mr Watson, Mr Withers did take me to page 252 of the court book - - -

MR WATSON:     Yes.

HIS HONOUR:     - - - where Mr Stolz re-tweeted what seems to be some allegation that the court was compromised by having a conflict of interest with the applicant to go about - - -

MR WATSON:     Could I tell your Honour, we were sent this for the first time when I was already set up in this courtroom. I read it. I didn’t like the look of it. I wish Mr Stolz hadn’t done it. But in the first place it was done by somebody else altogether, and Mr Stolz shouldn’t have [retweeted] it, but that’s all he did. I don’t know what it is, and we’re not certainly – not suggesting anything of that sort involving your Honour, and if there’s a - - -

HIS HONOUR: It was re-tweeted on Friday.

MR WATSON:     I know. Your Honour, what can I say? That is something which when I saw it here this morning, in the way that White J would have put it, my response involved expletives. I just couldn’t believe that Mr Stolz would be so silly as to do that. All I can say now is that his lawyers, I can assure you, knew nothing about it, and I haven’t spoken to Mr Stolz, but I don’t care what he says. I will say now he should not have re-tweeted that, we don’t know any basis for it and it shouldn’t ..... your Honour. I will ask Mr Stolz, if your Honour wishes, to provide his own apology or explanation for that and he can do it on affidavit. I just couldn’t believe it when I saw it.

HIS HONOUR:     But I’m not asking for an apology. That will be totally up to Mr Stolz as to what he thinks the appropriate thing to do is. That [referring to the re-tweet] clearly wasn’t appropriate.

MR WATSON:     I agree. Whether that’s a basis for getting an injunction is another matter, as I said before, we accept. Well, your Honour’s reputation of fairness and good judgment is well-known. We accept that and I just say on behalf of the lawyers, not having spoken to Mr Stolz directly about it, I apologise. I feel embarrassed standing here with the job of defending it; it shouldn’t have been said.

HIS HONOUR:     Yes, thank you, Mr Watson.

102    The post that Mr Stolz re-tweeted raises a serious and troubling allegation. Its sting lies in vague suggestion, the purport of which appears to be that this proceeding has not been, and will not be, conducted fairly, justly, and impartially and that it is being heard by a “compromised” Court whose decisions will favour the applicant. Counsel for Mr Stolz, Mr Watson SC, was correct to point out that Mr Stolz was not the author of the remark. However, it is apparent that Mr Stolz was prepared to endorse it, because he re-tweeted it and gave it his own public circulation.

The applicant’s submissions

103    Ms Fernandez has deposed that the media campaign waged by Mr Stolz has had an adverse impact on the applicant. The applicant has had to deploy considerable resources to monitor and respond to these media activities. Importantly, it has also given additional consideration as to how it pursues its claim against the respondents in light of Mr Stolz’s media activities. Based on information provided by the applicant’s Executive Manager Workplace Relations, Ms Fernandez has deposed that the applicant considers that it cannot freely express its position in the proceedings, and has had to make strategic decisions, in respect of the proceedings, which it does not consider to be in its interests.

104    The applicant has also taken additional security measures, at significant expense, to its office premises, in part because of the threatening messages it has received in the wake of Mr Stolz’s media activities. The nature of these measures is more particularly described in Ms Fernandez’s affidavit of 18 August 2021. The applicant is concerned about the mental health and well-being of its staff, who receive and deal with these messages.

105    Ms Fernandez also points to the statements made by Mr Stolz to the effect that its financial affairs should be investigated by the Australian Taxation Office. The applicant views the allegation that is implicit in these statements—that the applicant’s financial affairs have been conducted improperly and require investigation—as having been made in an attempt to cause it to cease pursuing its claims against the respondents.

106    It is worth repeating that Mr Stolz has not challenged the facts on which the application for interlocutory injunctive relief is brought. Nor has he chosen to provide any explanation for his conduct. He has left the facts to speak for themselves, on which he has, nevertheless, made submissions.

107    As I have noted, the applicant submits that Mr Stolz’s conduct, summarised above, has a tendency to interfere with the due administration of justice, and should be restrained. In its written submissions, the applicant advanced five main reasons.

108    First, the applicant submits that the effect of Mr Stolz’s conduct is “to create and perpetuate a misleading media narrative that [it] is using the court system to bully a ‘whistle-blower’, to run him out of money in retaliation for being a whistle-blower and to silence the media”. The applicant submits that Mr Stolz has sought to bolster this narrative by suggesting that the June judgment “involved the Court failing to protect a ‘whistle-blower’ by requiring him to hand over protected communications”.

109    The applicant submits that this involved a misrepresentation of both the nature of the principal proceeding and of the circumstances in which they arose. It submits that Mr Stolz’s media commentary involved a serious misrepresentation of the effect of the June judgment. No issue of “whistleblowing” or “parliamentary privilege” was raised at the hearing and neither matter formed any part of the Court’s reasoning. The applicant submits that, knowing this, Mr Stolz had no reasonable basis to state on the GoFundMe page that:

… Essentially Justice Yates has ruled any communication by a constituent, member of the public, a whistleblower reporting serious criminal activity to a Politician, is open slather and will be furnished to the person or entity who are committing the crime.

110    The applicant submits that this statement not only impugned its motives in seeking production of the documents (pursuant to an order by consent), it implicitly suggested that the Court had “taken sides in an improper way or had made some extravagant decision beyond its power”.

111    The applicant accepts that the Court should be mindful of the importance of protecting freedom of speech. It submits, however, that Mr Stolz has been engaging in wilful misrepresentation of the judicial process. It submits that any contention that Mr Stolz’s commentary was in the public interest must be treated with caution because, even though the public may have an interest in the fair reporting of legal proceedings, and, in a general sense, issues concerning whistleblowers, the public “does not have a legitimate interest in the misreporting of proceedings to make them about ‘whistleblowers’ when they are not”.

112    Secondly, the applicant submits that Mr Stolz’s conduct was “plainly calculated to put improper pressure on [it] in respect of its conduct of this litigation”. It submits that, rather than complying with the Court’s orders, Mr Stolz has “chosen to divert his energy and resources to the media campaign, presumably in the hope that public pressure will cause the [applicant] to capitulate”. The applicant submits that “(t)his dynamic is most evident in the instances where instead of responding to letters sent by the solicitors and having disputes resolved by the Court, [Mr Stolz] would instead provide the correspondence to the media together with adverse commentary about the [applicant’s] motivations”.

113    Thirdly, the applicant submits that there has been no acknowledgement by Mr Stolz of the wrongfulness of his conduct. It instances the responses given by Mr Stolz’s former and current solicitors to the concerns raised in its solicitors’ letters of 18 June and 25 June 2021 with respect to the GoFundMe page: [77], [89] – [91], and [95] – [97] above.

114    Fourthly, the applicant submits that while it is a large organisation, and can be expected to have “some level of resilience”, there cannot be any doubt that Mr Stolz’s conduct was intended to tarnish its reputation and had the tendency to bring improper pressure to bear on it in connection with the litigation. The applicant argues that this campaign has had a predictable effect; it has “elicited angry abusive messages from members of the public” directed at it.

115    Fifthly, the applicant points to the fact that Mr Stolz has been put “squarely on notice” of its allegation that, knowing the reputational damage he is able to cause the applicant through his media campaign, Mr Stolz has intended to bring pressure to bear upon it not to pursue this proceeding. The applicant submits that, having been put on notice of this allegation, notably Mr Stolz has not denied the allegation through evidence, or otherwise sought to explain his conduct. The applicant submits that, in the circumstances, the Court can infer that Mr Stolz’s purpose in conducting the media campaign was to bring pressure to bear on the applicant not to pursue the proceeding.

116    The applicant’s written submissions were supported by oral submissions. Those submissions did not raise any matters in addition to its written submissions.

Mr Stolz’s submissions

117    In his written submissions, Mr Stolz contends that the applicant’s submissions are based on an incorrect characterisation of his conduct. He disputes that his conduct is part of an adverse media campaign which he has perpetrated and directed. He argues that it is little wonder that “the issues involved here have generated public interest”: poker machines are “controversial”, and money-laundering is a serious crime. Mr Stolz disputes that he is to blame for the negative comments that members of the public have made about the applicant.

118    Mr Stolz says that he posted information on his GoFundMe page to explain why he was looking for financial support. He focused on the applicant’s case against him and explained his defence (which is that he is a whistleblower). He says that he communicated his belief that the whistleblower laws failed him. Mr Stolz also says that he focused on the fact that he and his wife lost the interlocutory applications referred to in the June judgment, and were facing significant costs orders. But, he submits, “all of this was true”; the views he expressed are views which he is entitled to hold, even if the applicant does not agree with them.

119    He submits, further, that the GoFundMe page expressed his understanding of how the Court determined the earlier interlocutory applications. He appears to suggest that it is of no moment that the applicant, or even the Court, might disagree with his understanding. He submits that, by expressing these views, he is “hardly obstructing the administration of justice”.

120    Mr Stolz argues that, in any event, he has willingly taken down those parts of the GoFundMe page which were said to have “crossed the line”. Thus, he submits, a “correction” has occurred. He submits that it is a large step to assert that, in these circumstances, he is still actively and deliberately trying to mislead the public as to the “Court’s judgments”. He says that such an allegation is very serious and needs clear and compelling evidence to support it. He submits that, since he has corrected the GoFundMe page, the issue, now, is whether he has done anything else that has “crossed a line”.

121    Further, Mr Stolz submits that it is understandable that his GoFundMe page was picked up by sections of the media, politicians, and social commentators. He accepts that he “engaged with that media interest”, but submits that he was entitled to do so. He contends that even if, as the applicant contends, he is advancing his cause in an “adverse” manner to the applicant, and is the “driving force” behind the media reporting, this is “hardly a basis for fearing an obstruction to the administration of justice”. He says that, importantly, there is no allegation that his conduct constitutes contempt or defamation.

122    In any event, Mr Stolz disputes that he has “ramped up” his media campaign or increased its “tempo”, as the applicant has contended. He submits that such a finding is not supported by the evidence and that, to the contrary, the evidence supports a finding that his conduct has “moved the other way” as he “corrected” the GoFundMe campaign. Mr Stolz submits that he cannot control what other people write, and he cannot be blamed because the interested persons who took up his story were prominent people, politicians, or journalists.

123    Mr Stolz’s written submissions were also supported by oral submissions.

Relevant case law

124    One of the leading cases in this area of the law is Attorney-General (UK) v Times Newspapers Ltd [1974] AC 273; [1973] 3 All ER 54 (Times Newspapers). In that case, Lord Morris of Borth-y-Gest said (at 302):

… the phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits. In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk, if the recognised courts of the land are so flouted that their authority wanes and is supplanted. But as the purpose and existence of courts of law is to preserve freedom within the law for all well disposed members of the community, it is manifest that the courts must never impose any limitations upon free speech or free discussion or free criticism beyond those which are absolutely necessary. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely out­weighs another aspect of the public interest. Certain aspects of the public interest will be relevant in deciding and assessing whether there has been contempt of court. But this does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a desire to bring about a relief of some distress that was a matter of public sympathy and concern. There can be no such thing as a justifiable contempt of court.

125    In a similar vein, Lord Diplock said (at 307):

… in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it, are essential if citizens are to live together in peaceful association with one another. “Contempt of court” is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.

126    One recognised form of contempt at common law is the exertion of improper public pressure on a litigant in proceedings to persuade that litigant to modify its position in those proceedings. Such conduct is an interference with the administration of justice.

127    As Lord Diplock explained in Times Newspapers (at 308):

… To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also—and this more immediately—the particular interests of the parties to the case. …

128    Later, Lord Diplock said (at 310):

… to hold a party up to public obloquy for exercising his constitutional right to have recourse to a court of law for the ascertainment and enforcement of his legal rights and obligations is calculated to prejudice the first requirement for the due administration of justice: the unhindered access of all citizens to the established courts of law. Similarly, “trial by newspaper,” i.e., public discussion or comment on the merits of a dispute which has been submitted to a court of law or on the alleged facts of the dispute before they have been found by the court upon the evidence adduced before it, is calculated to prejudice the third requirement: that parties to litigation should be able to rely upon there being no usurpation by any other person of the function of that court to decide their dispute according to law. If to have recourse to civil litigation were to expose a litigant to the risk of public obloquy or to public and prejudicial discussion of the facts or merits of the case before they have been determined by the court, potential suitors would be inhibited from availing themselves of courts of law for the purpose for which they are established.

129    Lord Simon of Glaisdale said (at 318):

… If there is a public interest recognised by law that disputes should without interference be settled according to law in due process of law (whether by trial or by settlement on the basis of the law which would be applied at the trial), in my view it is not only immaterial whether the interference is physical or moral, but also whether the moral interference is, on the one hand, by holding the tribunal or litigant or witness up to public detestation or, on the other, by bringing private pressure to bear (unless such pressure can be justified). It is the fact of interference, not the particular form that it may take, that infringes the public interest. …

130    Lord Cross of Chelsea said (at 326):

… To seek to dissuade a litigant from prosecuting or defending proceedings by threats of unlawful action, by abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose and such like, is no doubt a contempt of court; but if the writer states the facts fairly and accurately, and expresses his view in temperate language the fact that the publication may bring pressure—possibly great pressure—to bear on the litigant should not make it a contempt of court. …

131    In Harkianakis v Skalkos (1997) 42 NSWLR 22 (Harkianakis), Mason P (at 27 – 30) discussed the general principles that apply in cases of contempt by improper pressure on a party. His Honour said (at 28):

The cases have recognised a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material. … Such contempt may include public discussion involving injurious misrepresentations concerning a party (see William Thomas Shipping Co Ltd [1930] 2 Ch 368; Fry v Bray (1959) 1 FLR 366) or abuse and public obloquy of a party (Re St James’ Evening Post; Roach v Garvan (1742) 2 Atk 461 at 471; 26 ER 683 at 684-655; the Sunday Times case). These and other instances of “trial by newspaper” tend to undermine the rule of law, because they risk impeding access to the courts of law for vindication of legal rights. The gravamen of the contempt is the tendency to deter both the individual litigant and litigants similarly placed who would wish to seek curial vindication of their rights. …

132    Mason P noted that, at 27, as the allegation is one of criminal contempt, the claimant must demonstrate, to the criminal standard, that, as a matter of practical reality, the impugned conduct will have a tendency to interfere with the course of justice in a particular case. Intention to interfere with the due administration of justice is not necessary to constitute the contempt although, where intent to interfere has been proved, this has usually been sufficient to sustain a prosecution.

133    Further, in order to make out the contempt, it is not necessary for the claimant to show that the alleged interference with a party’s conduct of proceedings has been successful. Indeed, even when the impugned conduct is shown to have had no impact on the litigant concerned, there may still be a contempt. There must, however, be a “substantial risk of serious interference” or a “real and definite tendency to prejudice or embarrass pending proceedings” or “clear tendency” to interfere with the course of justice: Hinch v Attorney-General (Vic) [1987] HCA 56; 164 CLR 15 per Mason CJ at 27 – 28, Wilson J at 34, and Deane J at 47.

134    In Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496, O’Loughlin J observed (at 505):

In assessing whether the requisite degree of inhibition might be calculated to exist there must be some real risk for there will be no contempt if the possibility of influence is remote. On the other hand, the assessment must be made in an objective setting. It is not to the point to acknowledge that in this case the company has not been overborne. If that was a factor to be taken into consideration then no litigant who was prepared to complain could ever establish the existence of a risk of inhibition. The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate. If the conduct amounted to such improper pressure it would not matter that he failed to achieve its objective.

135    In Harkianakis, Mason P also noted (at 29) that the contempt might arise at any stage in the proceeding. The gravamen of the contempt is the potential interference in the litigant’s freedom to conduct the litigation as he or she chooses. In this connection, his Honour quoted the following passage in a Research Paper published by the Australian Law Reform Commission entitled “Improper Pressure on Parties to Court Proceedings” (ALRC RP 3, 1986):

The right to bring an action in relation to a civil matter is really a bundle of rights that includes the freedom to originate, not to originate, to negotiate rather than litigate the settlement of the dispute, and/or to withdraw an action or a defence after setting it in motion. The latter options may be exercised up until the time the court delivers judgment.

136    The Court has jurisdiction to grant an interlocutory injunction to restrain a threatened contempt of court: Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 2) [2015] FCA 762; 236 FCR 432 (Basetec) at [31] – [34]; Y v W [2007] NSWCA 329; 70 NSWLR 377 at [35], and the cases there cited. The principles on which interlocutory injunctive relief is granted are discussed comprehensively in Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 and need not be repeated here.

137    This is the basis on which the present application for injunctive relief is brought. For the purposes of the present application, the applicant advocates the approach taken by White J to that question in Basetec. It is therefore appropriate that I refer to that case in a little detail. It discusses issues which arise, similarly, in the present case.

138    In that case, the respondent, Leighton Contractors Pty Ltd (Leighton) complained that Basetec’s sole director, secretary, and ultimate shareholder, Mr Figallo, had made threats to pursue a media campaign against Leighton in relation to litigation between Basetec and Leighton. Leighton sought injunctive relief to restrain those threats, as well as to restrain other conduct. White J (at [17]) summarised the basis on which interlocutory injunctive relief was sought:

Leighton contends that Mr Figallo’s emails, text messages and voicemail messages constituted a contempt of Court or, alternatively, indicate a basis upon which the Court may apprehend that conduct may occur in the future which will amount to a contempt of court. It contends, in particular, that the conduct constitutes an improper attempt by Mr Figallo to induce it to agree to a settlement of the action or, perhaps, to modify the way in which it defends the action. …

139    Based on the general principles discussed by Ipp JA in Y v W, and by Mason P in Harkianakis, White J noted that the Court must be alert to the distinction between acceptable pressure and improper pressure. His Honour reasoned that the critical question for the Court’s consideration in that case was whether Mr Figallo’s conduct, which Mr Figallo undoubtedly engaged in to bring pressure to bear on Leighton, was, prima facie, improper. His Honour remarked (at [34]):

… Given the effect of the injunction sought in the circumstances that there will not be a final adjudication at trial of whether Mr Figallo has committed a contempt, I consider it appropriate to proceed on the basis that the court should have a strong feeling of persuasion that Mr Figallo’s conduct may constitute a contempt.

140    In assessing whether a case had been established for an interlocutory injunction, White J noted a number of considerations which he considered to be pertinent.

141    These included the importance of the public interest in freedom of speech. His Honour referred to Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 (O’Neill) and noted that, while the freedom is not absolute, it is one which the Court does not lightly restrain by injunction. Even so, O’Neill was a case of threatened defamation, in which exceptional caution is customarily exercised before exercising the power to grant interlocutory injunctive relief. White J observed (at [36]) that the Court does not have the same caution about intervening when the issue is a contempt or threatened contempt of court.

142    Another relevant matter noted by his Honour (at [37] – [38]) was the potential public interest in being informed of the matters with which the litigation was dealing. His Honour said that the Court should not readily impose restraints which would have the effect of inhibiting public discussion or, indeed, exposure, if it be appropriate, of Leighton’s conduct.

143    Next, White J (at [39] – [40]) referred to the fact that Leighton was a substantial corporation with substantial resources, which, for those reasons, could be expected to have the resilience with which to withstand much of the pressure that was sought to be applied against it. His Honour considered that consideration to be pertinent because, whether or not contempt is committed by public statements calculated to influence a litigant, depends upon whether there is a real risk, as opposed to a real possibility, of the party being influenced by the statements.

144    White J also took into account (at [44]), that Leighton had not commenced contempt proceedings against Mr Figallo, even though that had been an option open to it which, in some respects, would have provided a better vehicle for the determination of some of the factual issues.

145    His Honour also discussed (at [45]) the relevance of the continuous or escalating nature of the impugned conduct. I note above, at [121], Mr Stolz’s submission that the “tempo” of his media campaign has “moved the other way”. In oral submissions, however, the applicant submitted that Mr Stolz had not “quietened down”. The applicant took me to several of Mr Stolz’s tweets and article quotations, following from 17 July 2021, as evidence of that fact.

146    White J referred to a number of other considerations which also, arguably, told against the grant of interlocutory injunctive relief being granted. However, his Honour was persuaded that such relief should be granted. He noted, in particular, the following matters.

147    First, he noted that Mr Figallo had disparaged the courts and members of the judiciary in his communications. The details of this disparagement are not summarised in his Honour’s reasons. However, his Honour said (at [47]):

47     … While the courts can be expected to accept criticism from time to time, some of Mr Figallo’s comments about the Courts and about members of the judiciary appear to be contemptuous in that they imply that the Courts are willing to act at the bidding of Leighton, rather than acting impartially. Conduct of this kind can be contempt: Gallagher v Durack (1983) 45 ALR 53.

148    Secondly, White J noted (at [48]) that, even when faced with Leighton’s application for interlocutory injunctive relief, Mr Figallo had not acknowledged the wrongfulness of his conduct or made any statement of willingness to modify his conduct.

149    Thirdly, White J noted (at [50]) that, despite the advice of Basetec’s own solicitors, Mr Figallo had not tempered his conduct.

150    The applicant also referred me to Meat and Allied Trades Federation of Australia (Queensland Division) Union of Employers v Australasian Meat Industry Union of Employees (Queensland Branch) (1989) 90 ALR 187 (Meat and Allied Trades), a case in which an interlocutory injunction obtained by the applicants in the proceeding was dissolved because of a press release issued by the applicants which misreported the proceedings and the relief that had been obtained. In that case, after noting that the jurisdiction which the Court had been asked to exercise in that case (a decision concerning s 45D of the Trade Practices Act 1974 (Cth)) was a “particularly delicate and difficult one”, Pincus J said (at 190 – 191):

… The court has to make decisions which may affect many, perhaps hundreds or thousands, of people, in an atmosphere which can be quite heated. One party or the other may seek to create, and succeed in creating, an impression that the court has taken sides in an improper way or made some extravagant decision beyond its power. This is what the applicants, in my opinion, have done here.

The current standard of press reporting of litigation is not always such as to make it an occasion for remark that some aspects of the judge’s reasons are not reported accurately and, in a sense, one may therefore say that this is a commonplace event. What is not so commonplace, in my opinion, is a widespread misreporting of an important kind which is sheeted home firmly to one of the parties in the litigation, as happened here.

151    As to the reason for rescinding the interlocutory injunction, Pincus J said (at 191):

… I do not rescind the order simply to uphold the dignity of the court, although this is an important factor. My decision to rescind the order is motivated by a view that the proper exercise of this particular jurisdiction is rendered impossibly difficult if the parties are to be free to broadcast, no doubt with the worst of motives, deliberate misrepresentations as to the effect of what the court has done. …

152    Although Meat and Allied Trades was not a case on contempt, the applicant contends that remarks from the case quoted above are apposite to the statements made by Mr Stolz on the GoFundMe page. It submits that the statements were deliberately misleading and made with “the worst of motives”, namely to impede its ability to bring, and freely run, the principal proceeding.

153    For his part, Mr Stolz contends that, in bringing its application for interlocutory injunctive relief, the applicant is motivated only by a wish not to be the subject of any criticism—a matter which, he argues, was addressed by Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249 – 250:

… It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested … The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion of the denunciation may, as an incidental but not intended bi-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant. It is wellsettled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as a plaintiff or as a defendant, …

(Emphasis added by counsel.)

154    Mr Stolz also pointed to the remarks made by Gleeson CJ and Crennan J in O’Neill (at [32]) about the balancing of competing interests which include the right of free speech:

32    It is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech. It is another matter for a court to interfere with the right of free speech by prior restraint. In working out the consequences of abuse of such freedom, the law strikes a balance between competing interests, which included an individual’s interest in his or her reputation. When, however, a Court is asked to intervene in advance of publication wider considerations are involved. This is the main reason for the ‘exceptional caution’ with which the power to grant an interlocutory injunction in the case of defamation is approached.

155    As I have noted, this is a consideration which White J took into account in Basetec. However, as his Honour noted, O’Neill was a case dealing with threatened defamation, not contempt or a threatened contempt of court.

Analysis

156    The applicant’s case for an interlocutory injunction is framed on a threatened contempt of court. The applicant relies on Mr Stolz’s conduct from the time when proceedings against the respondents were in contemplation, up to the business day before the hearing of the present application for interlocutory injunctive relief. The applicant relies on this conduct as revealing a pattern of deliberate behaviour directed to impeding it in its conduct of the principal proceeding, which it has brought against the respondents to vindicate (what it claims to be) its rights to obtain relief in respect of the respondents’ wrongful possession and improper use of its confidential information and intellectual property. No application has been brought before the Court that this proceeding has not been genuinely brought by the applicant for proper legal purposes or is, otherwise, an abuse of the Court’s process. Had the respondents thought that to be the case, it would be difficult to explain why they consented to the disclosure regime and the making of the orders of 22 April 2020 in the first place.

157    The applicant has not commenced proceedings for contempt based on Mr Stolz’s past conduct. It nevertheless relies on that conduct as evidence of a real threat that Mr Stolz will continue to engage in this pattern of behaviour which, the applicant says, if carried out, would constitute a contempt of court. Therefore, the threat should be restrained.

158    I am satisfied that, based on Mr Stolz’s past conduct, the applicant has demonstrated a real threat that Mr Stolz will, unless restrained, continue to engage in that conduct or conduct of substantially the same kind. I am satisfied that the applicant has established a prima facie case (in the sense explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618) that such conduct, if engaged in, would be a contempt of court. I am further satisfied that, on the state of the present evidence, that case has sufficient prospects of success to warrant the grant of interlocutory injunctive relief and that, on the balance of convenience, such relief should be granted, in an appropriate form. To adopt White J’s formulation in Basetec at [34], I have a strong feeling of persuasion that Mr Stolz’s conduct may constitute contempt.

159    By way of elaboration, the uncontradicted evidence suggests that from the time when proceeding was in contemplation, Mr Stolz has sought to generate the public narrative, through the media, that the applicant has made its claims, and brought its proceeding, against him and Mrs Stolz as nothing more than an act of retribution—to “bash” a whistleblower. Without further explanation from Mr Stolz, the evidence suggests that the object of this conduct has been to arouse not just sympathy for Mr Stolz’s cause, but also to foment public condemnation of the applicant for bringing and maintaining its proceeding, with the object of bringing pressure to bear on the applicant to influence its decision-making in, and in respect of, the proceeding, including whether it should persevere with them, and/or to impede the applicant’s conduct of the proceeding.

160    It is true that Mr Stolz cannot be held responsible for what others—for example, journalists, commentators, and members of the general public—might choose to write or say about the proceedings. But the evidence suggests that he has actively sought to encourage this condemnation.

161    This encouragement has a number of facets. First, it has included suggesting to the media how their reportage of the proceedings should be themed— for example, “Some media coverage on ClubsNSW blatant attempt to get square with the whistleblower would be good”: [35] – [36] above.

162    Secondly, the encouragement has included providing the media with selected correspondence from the applicant’s solicitors in an apparent attempt to bolster that theme. It is to be noted that this correspondence was written by the applicant’s solicitors solely as a communication between legal practitioners involved in the proceeding, on matters concerning the conduct of the proceeding. It was written in the style of legal correspondence, as a medium of expression to be understood by trained lawyers familiar with litigation and the practice and procedure of the court in which the proceeding has been brought. It was not written for public disclosure to, and unfettered comment by, outsiders.

163    On occasion, the selected correspondence was provided for use, and presumably, reportage by the media before the respondents’ solicitors provided a response to the applicant’s solicitors. I refer, in particular, to the applicant’s solicitors’ letter of 11 June 2021. This letter was provided by Mr Stolz to the media with the overt suggestion as to how it should be reported to the public—namely, as an attempt to cow the media into silence and to stop the media reporting “the truth”: [55] above.

164    Thirdly, it is also arguable that this encouragement was provided by statements made by Mr Stolz on his GoFundMe page. Plainly, the GoFundMe page was written to solicit funds for the respondents’ legal costs in the proceedings. However, on the current evidence, an inference is available that it was also written with an eye to fomenting public condemnation of the applicant for bringing and maintaining the proceedings.

165    In this connection, I have already discussed the principal matters of concern I have with the statements made by Mr Stolz about the proceeding, and the June judgment in particular: [62] – [73] above. It is not necessary to survey those matters again. It will be apparent from my previous comments that I regard the GoFundMe page to have been materially misleading in a number of important respects. I do not say that Mr Stolz set out to be misleading, in the sense of making statements which he knew to be false or wrong. Even though the applicant invited me to find deliberateness in this sense, I do not find it necessary to explore that question, save to note that it is at least possible that Mr Stolz made a number of his statements out of ignorance or, perhaps, through passion, blinded by a strong conviction of the justness of his cause and of a sense of grievance that he and Mrs Stolz have been sued.

166    Nonetheless, the GoFundMe page was misleading. What is more, even though the misleading nature of a number of Mr Stolz’s statements on the GoFundMe page were pointed out, cogently, by the applicant’s solicitors, Mr Stolz, through his then solicitors, blithely defended the page. As I have noted, Mr Stolz was obviously content to let the GoFundMe page remain in the public domain, substantially uncorrected and as a beacon for the direction of adverse public comment focused on the applicant.

167    The applicant’s request that Mr Stolz take down the GoFundMe page also attracted opprobrium. The evidence suggests that this was also encouraged by Mr Stolz: [80] – [81] above. He used it as an occasion to continue the public narrative that the applicant was “punishing a whistleblower”: [82] above. The resultant public criticism that was visited upon the applicant included the abusive correspondence to which I have referred: [84] – [86] above.

168    Fourthly, this encouragement was provided by Mr Stolz publicly making inflammatory statements suggesting impropriety by the applicant in the conduct of its own financial affairs, as well as impropriety by its use of members’ funds to bring and maintain the proceedings against the respondents. This conduct repeated the theme of “bashing the whistleblower”: [75] above.

169    Fifthly, this encouragement was provided by Mr Stolz publicly calling into question, by no more than the rapier of suggestion, whether this proceeding has been, and will be, heard and determined by the Court impartially: [99] – [100] above.

170    Viewed objectively and cumulatively, all this conduct suggests that Mr Stolz has embarked on a pattern of behaviour calculated to bring pressure to bear on the applicant in respect of its conduct of the proceeding, through media and public comment that condemns the applicant for bringing and maintaining its proceeding against the respondents. It suggests that the opportunity to condemn is exploited every time the applicant takes a significant step in the proceeding—whether to seek compliance by the respondents with orders to which they have consented, or to seek cooperation from the respondents in using the Court’s processes to obtain documents from third parties, or to take steps to protect its position on costs, or to take steps to stop the respondents from misrepresenting the proceeding, including one of the Court’s judgments. Dispute as to whether, as a litigant, the applicant is entitled to take these steps, is a matter which should be resolved by the Court, not outflanked by pressure brought to bear on the applicant by the court of public opinion.

171    On the evidence before me, it is clearly arguable that Mr Stolz’s conduct has had, and if continued is likely to have, the real, clear, and definite tendency to interfere with the course of justice in this case.

172    It is appropriate that I address some specific aspects of Mr Stolz’s submissions which have not been covered by the above findings.

173    First, it is understandable, as Mr Stolz submits, that issues involving gambling (such as through poker machines), and concerns about money-laundering, will generate public interest and public comment. This interest, no doubt, extends to discussion of the venues at which and the means by which gambling takes place, and the occasions on which money-laundering opportunities might present themselves for exploitation, among other topics. The views held about these and other related topics are, no doubt, worthy of public debate and will, no doubt, give rise to strongly held, and likely strongly expressed, views.

174    However, the complaint raised by the present application for interlocutory injunctive relief is not about the publicity generated by, or the comments made about, those topics as such, or about the applicant’s involvement in them. It is about specific conduct that can be seen to be calculated to interfere with the administration of justice by bringing improper pressure to bear on the applicant as a litigant, and as to how it might conduct the litigation, which does not permit, or which will have a tendency not to permit, the course of justice, as administered through the courts, to run its proper course for the orderly and just determination, according to law, of the dispute with which the litigation is involved. That the case might raise, at a more general level, questions of importance does not mean that it overrides protection of the litigious process. As Lord Reid made clear in Times Newspapers (at 301), protection of the administration of justice is equally important whether or not the case involves important general issues.

175    Mr Stolz’s submissions do not really engage with that particular complaint. It is no answer to the present application to say that Mr Stolz has particular views about gambling or money-laundering, or about the proceedings in which he, as a litigant, is involved, or, indeed, about the applicant itself—which he is entitled to hold. Unquestionably, he is entitled to his views, whatever they might be. But he is not entitled, simply because of the views he holds, to engage, collaterally, in conduct which has the real, clear, and definite tendency to bring improper pressure to bear on the applicant as a litigant in the proceedings.

176    Secondly, I do not accept that by taking down (as it turns out, belatedly) all or part of the GoFundMe page, Mr Stolz has effected a “correction”. Implicit in a “correction” is a personal acknowledgement by the maker of the correction that a correction should be made, and a personal acceptance and explicit statement by the maker of the correction of the true and correct state of affairs. The impugned statements made by Mr Stolz on the GoFundMe page remain uncorrected.

177    Thirdly, in the course of this application, Mr Stolz has said that his defence in this proceeding is that he is a whistleblower. At the same time, correspondence from his former solicitors, which is in evidence, acknowledges that the protection afforded by legislation to whistleblowers is not available to Mr Stolz. I do not know if Mr Stolz will maintain this position. But if this is truly his complaint, then the following remarks by Lord Diplock in Times Newspapers (at 313) are apposite:

… If laws are unjust they ought to be changed. Under our constitution it is for Parliament to decide whether any change is needed. A campaign to change them should be directed to persuading parliament of the need, not to vilifying individual litigants for exercising their rights under the law as it stands. If a campaign directed to the latter object were to succeed in deterring litigants from enforcing their legal rights in courts of law which are under a constitutional duty to enforce them, the practical result would be to substitute government by the “media” for government by Parliament in the particular field of legislation with which the campaign was concerned.

The appropriate form of relief

178    The applicant seeks a number of injunctions. The first injunction it seeks is directed to restraining Mr Stolz from repeating the substance of certain statements formerly made on the GoFundMe page. Those statements have already been removed. I am not persuaded that there is a real risk that they will be repeated, or at least repeated in substance, particularly having regard to the remarks I have made in these reasons.

179    The second injunction the applicant seeks is directed to restraining the respondents from publishing the applicant’s solicitors’ correspondence. As a general observation, I do not think that such correspondence should be published to the world. The maintenance of civility, and the upholding of professional standards of behaviour, would suggest that, in the normal course, this should not be done. But, of more direct concern for present purposes is the occasion on which such correspondence might be published, and the apparent reason for making that publication. I am not disposed to grant the injunction the applicant seeks, principally because I think the mischief it seeks to avoid can be accommodated by the injunction I will make.

180    The third and fourth injunctions the applicant seeks are directed to restraining public statements, including to the media, about the applicant’s purpose in maintaining the proceeding against the respondents and its conduct in the proceeding. The form of these injunctions is too broad. However, once again, the mischief these injunctions seek to avoid can be accommodated by the injunction I will make.

181    The fifth injunction the applicant seeks is modelled on one of the injunctions granted by White J in Basetec. Mr Stolz submits that an injunction in these terms is too vague. He submits that, in terms, it would involve the making of contestable value judgments.

182    I accept that the injunction the applicant seeks does involve, for its observance, the exercise of judgment. I also accept, as a general proposition, that it is undesirable to grant an injunction whose efficacy is dependent on value judgments being made. Nevertheless, I am persuaded that an injunction, along the lines of the injunction the applicant seeks, should be made.

183    For its compliance, the injunction the applicant seeks does no more than call for the exercise of the judgment which must be exercised in any event if, for example, one wishes to take the step of commenting publicly on the course of litigation or on the conduct of a party in, or in respect of, that litigation. If this is the path that Mr Stolz chooses to take, there is no restraint on him doing so. But, if he wishes to continue on that path, he must tread carefully. I expect that he will be able to do so carefully, within proper bounds, with the benefit of legal advice.

184    I would add that the difficulty in crafting an appropriate form of injunction should not leave the applicant without a remedy, when it has established an entitlement to that remedy. And, having established an entitlement to that remedy, the risk of compliance must fall on the party who is subject to that remedy.

185    The injunction to be made should be more closely aligned with the injunction made in Basetec. The appropriate form is to restrain Mr Stolz, until the conclusion of the proceeding or further order, from publishing or causing to be published to any person who is not a party to the proceeding, or a legal representative of any party to the proceeding, statements about the applicant’s, or its legal representatives’, conduct of the proceeding, which are calculated to intimidate, harass, or otherwise bring improper pressure on the respondent (including its officers, employees, or agents) in respect of the conduct of the proceeding.

186    The making of this injunction should be supported by an undertaking as to damages. There should also be liberty to apply.

Disclosure orders

187    As I have noted, this aspect of the interlocutory application is not contested beyond the form of the orders that should be made. Even then, I apprehend, from discussions occurring at the hearing, that any dispute about form might also have evaporated. The proposed orders concern the respondents’ compliance with the disclosure regime.

188    The applicant seeks these orders (according to its draft proposed orders):

Further non-compliance with disclosure orders

2.     Within two days from the date of this order, the first respondent is to write to any person to whom he sent the applicant’s confidential information using his email account ‘seaeagle1@protonmail.com’ (as disclosed in his affidavit of 22 December 2020) (the Protonmail Recipients) and request a copy of those communications.

3.     The first respondent is to provide the applicant with a copy of any response received from the Protonmail Recipients, including any documents or communications provided, within one day of receiving the same.

4.     On or before 26 August 2021, the First Respondent is to serve an affidavit:

a.    confirming his compliance with order 2 above and annexing the correspondence with the Protonmail Recipients;

b.    containing login or other access details for the email account of archieblurtwhistle2000@gmail.com for inspection by the applicant’s nominated forensic expert, pursuant to the Court’s order of 22 April 2020.

c.     providing an explanation for why the first respondent failed to disclose the archieblurtwhistle2000@gmail.com account in accordance with the Court’s prior orders.

5.    The parties are to otherwise comply with paragraphs 13 to 18 of the Electronic Device Regime annexed to the Court’s orders of 22 April 2020 with respect to the email account archiblurtwhistle2000@gmail.com account with dates referred to in those paragraphs to be read as follows:

a.     30 April 2020 to be read as the date that is 2 days from the date of this order;

b.    1 May 2020 is to be read as the date that is 3 days from the date of this order;

c.    8 May 2020 is to be read as the date that is 10 days from the date of this order;

d.    19 May 2020 is to be read as the date that is 21 days from the date of this order;

e.    24 May 2020 is to be read as the date that is 26 days from the date of this order.

189    Mr Stolz consents to proposed orders 4(b) and (c), and proposed order 5 (it is implicit that Mrs Stolz also agrees to this proposed order).

190    The only material matters in dispute are, firstly, whether Mr Stolz should send the written request referred to in proposed order 2 or whether his solicitors should send that request and, secondly, whether the neutral expression “communications” should be substituted for “the applicant’s confidential information” in that proposed order. If it is appropriate for the respondents’ solicitors to send the written request, then proposed order 3 should be amended to reflect that fact.

191    Further, Mr Stolz submits that it would not be necessary for an affidavit of compliance to be made by him, as contemplated by proposed order 4(a), because it should be sufficient if compliance is confirmed by the respondents’ solicitors who, it is suggested, could provide the applicant’s solicitors with copies of the written request(s) made.

192    I am satisfied that the procedure proposed by Mr Stolz is satisfactory—namely, that the respondents’ solicitors send the written request(s)— and that the proposed orders should be made with the changes discussed above to accommodate that procedure.

193    It should not escape attention that the need for this relief arises from the difficulties encountered with the Protonmail account discussed at [41] – [50] above. Proposed orders 2 and 3 put in place a procedure which might obviate the need for, say, subpoenas to be issued to obtain production of the relevant documents.

Asset preservation order

194    The applicant seeks this order (according to its draft proposed orders):

Asset preservation

6.    Upon the applicant giving the usual undertaking as to damages, the respondents pay or cause to be paid into Court an interest-bearing controlled moneys account as agreed between the parties, an amount of $75,000 from any net proceeds payable to, or otherwise receivable by, the respondents in consequence of the sale of the property at 51-55 Hakone Road, Woongarrah, NSW 2259, with that amount to be held pending finalisation of the taxation or assessment of the costs payable to the applicants pursuant to the orders made by Yates J on 9 June 2021.

195    This aspect of the interlocutory application has been touched on at [38] – [40] above.

196    The evidence is that on the day on which the June judgment was given, the respondents listed their property at Wongarrah for sale. This property is the respondents’ place of residence. They each hold a 40% share in the property as tenants in common (the other 20% share is held by the remaining tenant in common). So far as the applicant is aware, Mr Stolz does not own other real property. Mrs Stolz is the joint proprietor of property at West Wodonga, in Victoria.

197    The respondents have not given evidence concerning their assets or whether they have the capacity to meet the costs order made on 9 June 2021.

198    The applicant argues that it has a legitimate concern that the respondents “may be taking steps to dispose of their assets in a way that means that they cannot satisfy the costs judgment once taxed”.

199    The applicant moves on r 7.35(4) of the Federal Court Rules 2011 (Cth):

(4)     The Court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur:

(a)     the judgment debtor, prospective judgment debtor or another person absconds;

(b)     the assets of the judgment debtor, prospective judgment debtor or another person are:

(i)     removed from Australia or from a place inside or outside Australia; or

(ii)     disposed of, dealt with or diminished in value.

200    In its written submissions, the applicant points out that, in order to obtain relief under this rule, it is not necessary for it to adduce evidence of an intention on the part of the respondents to dissipate their assets or to prove that dissipation is more probable than not: Deputy Commissioner of Taxation v Hua Wang Bank Berhad [2010] FCA 1014; 273 ALR 194 at [8] – [10]; Deputy Commissioner of Taxation v Chemical Trustee Ltd (No 4) [2012] FCA 1064; 90 ATR 711 at [23]; Basi v Namitha Nakul Pty Ltd [2019] FCA 743 at [9]. Nevertheless, the applicant frames its case for this relief as one of asset dissipation.

201    I am not persuaded that the order the applicant seeks should be made. The mere fact that the respondents have placed their residential property on the market does not mean that they are dealing with their assets in a way that attracts the operation of r 7.35(4).

202    As is made clear in Freezing Orders Practice Note (GPN – FRZG), a freezing order is an extraordinary interim remedy, the purpose of which is to prevent frustration or abuse of the Court’s processes—not to provide security in respect of a judgment or order (which is, effectively, what the applicant is endeavouring to achieve).

203    The public statements made by Mr Stolz are to the effect that the respondents need to sell the property to fund their costs of the proceeding. If that be so—and I have no reason to doubt that fact—then they are perfectly entitled to use their property for that purpose. This is a case where the applicant must deal with the respondents as it finds them.

204    Importantly, there is nothing to suggest that the respondents are proposing to sell the Wongarrah property for anything less than its full market value or that they will deal with the sale proceeds in any way calculated to frustrate the costs order that the applicant has obtained: see the comments made by Edmonds J in Curtis v NID Pty Limited [2010] FCA 1072 at [14] – [16].

205    I place no great significance on the fact that the respondents placed the property on the market on the day the June judgment was given. Without further evidence, this can be readily explained as mere coincidence, nothing more.

Disposition

206    The parties should now be in a position to bring in draft orders to give effect to these reasons and the agreement they have already reached on the other orders that should be made.

207    The applicant has had mixed success in obtaining the relief it seeks. My provisional view is that it is entitled to an order for costs, but not for all the costs of and incidental to the interlocutory application.

208    Undoubtedly, the greater part of the hearing has been devoted to the applicant’s claim for interlocutory injunctive relief in respect of Mr Stolz’s threatened contempt. The respondents have successfully resisted the applicant’s claim for the asset preservation order. As I have noted, the applicant’s claim for the disclosure orders ultimately resulted in substantial, if not entire, agreement on the orders that should be made.

209    I do not think that the order for costs to be made in relation to the present application should be approached in an over-complicated way. My sense of the matter, having regard to the issues agitated, is that Mr Stolz, as first respondent, should pay 60% of the applicant’s costs of and incidental to the interlocutory application. I express this as a provisional view only. If the parties wish to seek a different order, then I will give them the opportunity to file short written submission on that question. I will then determine the question of costs on the papers.

Associate:

Dated:    17 November 2021