Brennock & Dixon v Norman

Brennock & Dixon v Norman - [2021] NSWSC 1182 - NSWSC 2021 case summary — Zoe

Legal Principles

It is agreed that the applicable legal principles are as follows.
The penalty for the common law offence of contempt is at large (subject to the Bill of Rights 1688 (UK) prohibition on cruel and unusual punishment and excessive fines), and may include imprisonment: Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 at [5]-[10] per Gleeson JA (Beazley ACJ and Payne JA agreeing). The Crimes (Sentencing Procedure) Act 1999 (NSW) and Crimes (Administration of Sentences) Act 1999 (NSW) do not apply to the imposition of a sanction for contempt: Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229 ("Dowling") at [46], [57]-[58] per Basten JA (Meagher JA agreeing).
The Court has a broad discretion in terms of the range of punitive orders available to it: Street v Luna Park Sydney Pty Ltd [2009] NSWSC 767 ("Street v Luna Park") at [21] per Brereton J.
Punishment for contempt should be apt to uphold the purpose of the jurisdiction, namely, the undisturbed and orderly administration of justice. The purpose is to deter the contemnor and others in future from committing like contempts, and to denounce the conduct: Registrar of the Court of Appeal v Manian (No. 2) (1992) 26 NSWLR 309 ("Manian") at 314 per Kirby P; Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741 per Kirby P.
In Wood v Staunton (No. 5) (1996) 86 A Crim R 183 at 185, Dunford J listed factors to be taken into account in assessing the proper punishment for contempt. They are: 1. The seriousness of the contempt proved; 2. Whether the contemnor was aware of the consequences to himself or herself of what he or she did; 3. The actual consequences of the contempt; 4. Whether the contempt was committed in the context of serious crime; 5. The reason for the contempt; 6. Whether the contemnor has received any benefit by indicating an intention to give evidence; 7. Whether there has been any apology or public expression of contrition; 8. The character and general antecedents of the contemnor; 9. General and personal deterrence; and 10. Denunciation of the contempt.
Although not all of these factors may be relevant in every case, they remain a useful guide to the approach: Street v Luna Park at [16] per Brereton J.
The seriousness of the contempt is a significant matter in the assessment of the appropriate sanction: Maniam at 319 per Kirby P. The imposition of a term of imprisonment for non-compliance with court orders is generally not appropriate unless the non-compliance was contumacious: Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17 at [178] per Bromberg J.
The essence of a contumacious contempt is that it involves deliberate defiance of the Court's orders. As Brennan, Deane, Toohey and Gaudron JJ observed in Witham v Holloway (1995) 183 CLR 525 at 530, in relation to breach of an undertaking: [D]isobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.
Wilful and deliberate conduct which is calculated to thwart the fundamental purpose of the Court's orders is sufficient to constitute contumacy: Grocon v Construction, Forestry, Mining and Energy Union (No. 2) [2014] VSC 134 ("Grocon") at [114] per Cavanough J, citing Haritopoulos Pty Ltd v Scott [2007] VSCA 174 at [90]-[102] per Nettle JA (Buchanan and Neave JJA agreeing).
Contemptuous conduct may be contumacious especially if it occurs in circumstances of public defiance: Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 108 per Gibbs CJ, Mason, Wilson and Deane JJ. Public defiance includes communications to others or to the world at large which express or imply defiance of the authority of the Court: Grocon at [110] per Cavanough J. This is not, however, a necessary condition for a finding of contumacy: Grocon at [112] per Cavanough J.
Part 55 rule 13 of the Supreme Court Rules 1970 (NSW) ("SCR") provides that the Court may punish a non-corporate contemnor by committal to a correctional centre or fine or both, but it does not limit the penalty which this Court may impose because the Court's power to punish contempt derives from its inherent power: Manian at 319 per Kirby P.

[4]

Submissions of the Parties

The plaintiffs submitted that in publishing the infringing articles the conduct of the defendant should properly be characterised as contumacious and that this factor should therefore be a significant matter in the assessment of the appropriate sanction.
The plaintiffs submitted the defendant's conduct involved a deliberate defiance of the Court's orders and it was calculated to thwart the fundamental purpose of them.
The plaintiff also submitted that the defendant was fully aware that she was prohibited by the injunctions from imputing fraud to the plaintiffs. It was further submitted that she was well aware of the potential consequences for infringing the injunctions which is apparent from the face of the articles.
The plaintiffs also submitted that the court should take into account other articles on the defendant's website as part of the overall context in which for example she casts aspersions on the legal process in particular the defamation and contempt proceedings in effect as abuses of process intended to silence legitimate criticism and enable the plaintiffs to perpetuate their fraud. In particular the description by the defendant of this Court as a "Kangaroo Court".
It was submitted that in publishing the particular imputations (which make serious accusations) the defendant was well aware that it involved a breach of the orders of the Court.
The plaintiffs also submitted that the reason for the defendant publishing the articles is explained by the fact that the defendant has refused to accept Fagan J's findings in the defamation proceedings. And her unwillingness or inability to accept that her allegations are wrong requires the need for deterrence.
It was also submitted (although this position changed in the course of the hearing) that at the beginning of the hearing the defendant had not apologised either to the Court or the plaintiffs.
In his oral submissions counsel for the plaintiffs corrected [29] of his outline. At [29] the Court was informed that shortly after the delivery of my judgment certain of the articles said to amount to contempt remained accessible on line. In some cases the articles had been amended but in other cases the articles remained substantially in their original form. Articles 11, 13, and 15 continued to contain offending material while Articles 12 and 14 had been substantially amended. However at the hearing before me on penalty on 11 August all articles that could have objection taken to them had been taken down (Olson, T.1/38-50).
In all the circumstances it was submitted for the plaintiffs that this was a case where there was a "high need for personal deterrence", [32]. It was said that the need for denunciation was amplified by the public nature of the contempt and the extent to which the defendant flaunted her defiance of the Court's authority.
It was submitted that a monetary penalty would lack utility as a personal deterrent for the defendant. To date she had not paid the plaintiffs the $400,000 awarded or the costs of the trial. She has no apparent means to do so. It was open to the Court to impose a custodial sentence which would represent an effective personal deterrent for the defendant. In the alternative the Court could impose a suspended custodial sentence. However against the imposition of a custodial sentence it was accepted by the plaintiffs that the defendant had no antecedents.
The plaintiffs also sought their costs of the proceedings on an indemnity basis. The basis for awarding costs in such circumstances (a finding of contempt) the power to award costs derives from the inherent jurisdiction of the Court as the Civil Procedure Act 2005 (NSW) does not apply. Although the plaintiffs accept that an order for costs would not have much impact on the defendant it would again be a mark of the court's denunciation of the contempt.
It was accepted by the defendant that she was aware at all material times of the terms of the injunctions and had been warned of a potential penalty for any breach. But that upon a careful consideration she did make efforts to avoid breaching the injunctions.
It was also submitted that this was not a case where the relevant imputations were published in express terms. It was also not a case where the Court could conclude that the defendant intended that such imputations would be carried or understood that they would be. Therefore whereas here the conclusion of breach involves a consideration of whether the ordinary reasonable person would have understood the published material to carry a particular imputation the judgment is subjective. It would only be contumacious conduct on the part of the defendant if the imputation was published in express terms.
The lay person it was submitted would have difficulty in understanding notions of the hypothetical ordinary reasonable reader or reading between the lines which goes beyond the literal meanings which come naturally to the lay person.
It was further submitted that the defendant did use devices in some articles so as not to identify Mr Brennock by name and also used indirect language in order not to breach the injunction. In particular it was submitted that the defendant had as best I understood it deliberately used a rhetorical device in Article 13 so as to avoid a breach of the injunction.
The defendant also submitted that the material did not demonstrate a defiance of the Court on her part. She had merely written a series of Blog posts about her personal experience and being disappointed with the court process including the defamation proceedings. It was submitted that this demonstrated disillusionment with the judicial process not defiance of the authority of the court. And a person's expression of disappointment or disagreement with a judgment of any court is not the same as expressions of defiance of that Court's authority.
It was also submitted that there is no evidence that the plaintiffs have as a result of the contemptuous articles suffered any loss of business other than reputational harm as a result of the publications.
In effect it was submitted all the defendant was doing was setting out her views in the context of relevant Court judgments not defiance of them. The defendant pointed out that at the date of the hearing she has either removed articles or made amendments removing express reference to the first plaintiff.
It was submitted that the defendant has no relevant antecedents nor is she not otherwise of good character. Nor has she any prior findings of contempt against her.
It was submitted in conclusion that the Court should be satisfied that the defendant did not intend to commit the contempt. In such a case factors such as deterrence and denunciation have much less significance. It was submitted that this is a case where imprisonment, whether suspended or not, is inappropriate. Such a remedy should be reserved for more serious cases. And as half the counts against the defendant were not supported by any evidence and were either withdrawn or rejected by the Court, no order for costs would be appropriate.
I should add that in the course of argument on 11 August Mr Smark SC was, as a result of an exchange during his submissions, instructed by the defendant to proffer an apology to the Court and to the plaintiffs for breaching the injunctions and of her intention to strive not to breach them in the future, T.18/20-30.
Unsurprisingly Mr Olson of counsel for the plaintiffs described the apology as coming "well and truly heel of the hunt". And notwithstanding the defendant had through her counsel stated she did not intend to breach the injunctions it was submitted that I should have concerns about the defendant's honesty which may well aggravate rather that mitigate her conduct.
I raised some questions about sentencing options and invited further submissions and for Mr Smark SC to reconsider the terms of his client's apology if he wished, T.24/5-30.
On 20 and 23 August I received short but helpful submissions together with a clarification of the previous apology.
I should note that the new apology although not withdrawing the apologies to the plaintiffs now apologises "to the Court for past inadvertent breaches" and "affirms her resolve not to publish material that breaches the injunctions".
Mr Olson continued to submit that in effect I should disregard the defendant's statement of "inadvertent". In addition that the defendant did not say she undertook not to publish but merely to "affirm her resolve".
I should also acknowledge that after the oral hearing on penalty both sides helpfully made further submissions on the jurisdiction of the Court and in particular s.101 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act") and in particular the decision of the Court of Appeal in Dowling.
In that case, the Court decided that the Act did not apply to contempt proceedings in its civil jurisdiction, Basten J A at [46], [57]-[58] and Meagher J A agreeing.
It was submitted, in my view correctly, that s.101 of the Act has limitations and the relevant source of power that I should consider the relevant range of punishments for contempt in SCR Pt.55 r.13 (see the discussion in N Adams J and B Baker, "Sentencing for Contempt of Court" (29 February 2020, National Judicial College of Australia and the Australian University Sentencing Conference) at [127]-[128]). I have done so accordingly.

[5]

Consideration

The defendant defamed the plaintiffs. They sued her and the matter was determined by Fagan J in the Supreme Court. Not only did he decide the question in favour of the plaintiffs he awarded substantial damages against the defendant amounting to $400,000 plus costs. His honour also made certain orders in the form of injunctions restraining the defendant
The trial before his Honour went for some five days in August and two days in October 2019. The defendant was self-represented for five days but for the last 2 days was represented by counsel.
She must have read the judgment and in doing so could hardly have failed to notice she lost and in some considerable detail precisely why. For example she could not have failed to have appreciated that her version of events along with her witnesses were rejected. And she did set out to prove the truth of her fraud allegations and failed. In particular the judge was not satisfied that any fraudulent promotion or misrepresentations had occurred in relation to either the Bhula Bhula or Nightcap Land Project, Darwin v Norman at [136] and [142]. Nor was the judge satisfied other defences of truth were made out, Darwin v Norman at [145], [147] and [149].
The judge commented (at [158] of Darwin v Norman) that the Court issued interlocutory injunctions to restrain the continued publication of the matters complained of. Notwithstanding those injunctions there remained online "a substantial amount of defamatory material remained accessible online as at the date of the resumed hearing in October 2019". The judge was concerned there was a substantial risk that the defendant "will continue to publish or republish the defamatory matters or other content to similar effect" and made a finding accordingly.
He commented further, "[h]er persistence in the defence of truth, in the absence of evidence is a strong indication of her fixated, crusading belief that they are fraudsters", at [158]. The judge also observed that the "debacle" as he described it was as a result of folly and not fraud and that the defendant had made her investment without any regard to her own lack of care and judgment. She had proceeded with the transaction without obtaining independent professional advice and that she had defied the local council when told she not remain in occupation of the land in question.
In the face of those findings the defendant chose not to appeal. Instead in due course she wrote her blog.
In that regard I found her relevantly in contempt in relation to five articles. In each case it cannot be gainsaid she chose the words in each of her compositions.
In Article 3 (30 May 2020) she made assertions the claims by Mr Dixon about ownership were "false" and the marketing "spurious". That the project was being promoted by people who were "deceptive and illegal". She asserted the investors had been "defrauded".
In Article 11 (24 August 2020), she spoke of the illegal act of "phoenixing" explained as deliberately liquidating a company in order to avoid paying creditors, Brennock "drove" persons off the land without compensation.
In Article 12 (29 August 2020), the defendant asserts that people were "stung" and that Mr Brennock made marketing promises which caused investors to lose everything.
In Article 13 ( 29 August 2020), the defendant asserted that Mr Brennock was "protected by Supreme Court injunctions" that prohibited her "from publishing perceptions imputing felony to him" and that contempt charges had been initiated against her to provide a "total gag" on any unfavourable account of his dealings. That he managed to convince the Supreme Court he was not a "kingpin" and it was just incompetence and not fraud that caused losses to investors and "[n]one dare call it fraud".
In Article 14 (31 August 2020), Mr Brennock is accused of selling properties he or his company did not own and in effect being dishonest in doing so.
In Article 15 (2 September 2020), the defendant accused Mr Brennock of sharp practice and engaging in manoeuvres to defeat creditors.
The repetition of this background is to explain why I regard her conduct as contumacious. I do not for one moment accept that she can be excused on the basis advanced by her counsel - that in effect she is responsible for the words but not what the words mean. That in my mind is a distinction without a difference.
She cannot claim for example that English is her second language. She lived through the trial, conducted much of it herself and was legally represented towards the end but clearly has been unable or unwilling to accept the outcome.
In my view she made, notwithstanding her total failure to prove the very serious allegations of fraud amongst other things made, a conscious decision to continue to make the very allegations which were found to have been without foundation.
Serious allegations if made are to be taken seriously but they must be carefully considered and scrutinised as a matter of fundamental fairness to the person about whom they are made. That is exactly what Fagan J did. He decided there was no rational basis for them. More to the point he also thought the defendant was to some extent the author of her own misfortune. And he found explicitly that she had waged a "publicity and litigation campaign" that had been in intemperate terms, containing scandalous accusations that are insupportable so far as the evidence before the Court discloses", Darwin v Norman at [146].
A litigant in person is like any other litigant. They are bound by decisions of courts and must abide especially by injunctions of the sort made here. But this is not what the defendant did. She decided to continue making many of the very same allegations about issues she had failed to prove but was specifically restrained from making. Her campaign was relentless and vitriolic.
She has not paid anything towards the damages or costs and apart from her impecuniosity has in any event in my view no intention of ever doing so. She did not immediately remove the offending material even after I found her guilty of contempt although it has now been removed. She very belatedly offered an apology which of course I have taken into account but it might be thought to be too little too late (see Live Group Pty Ltd & Anor v Rabbi Ulman and Ors [2018] NSWSC 393 at [171]; Ulman v Live Group Pty Ltd [2018] NSWCA 338 at [191]).
I do take into account that the defendant has no relevant antecedents. The submission on behalf of the defendant that she be given in effect no penalty not even in relation to costs is in my view given the serious nature of the matters as I see them quite unacceptable.
A financial penalty alone is in this case somewhat meaningless. Although the judgment of Fagan J stands as reminder of her failure in the litigation and of course the injunctions he ordered also remain in force, I am of the view that a real deterrent is what is required here. Her behaviour must be denounced in the strongest possible terms. Quite frankly it is an affront to the Court.
Taking into account all of the above factors and the options available pursuant of SCR Pt. 55 r.13, in my view I would sentence the defendant to be committed to a correctional centre for a period of two weeks. In addition I would impose a fine of $20,000.
However, I would order the above penalties be suspended in accordance with SCR Pt.55 r.13(3) on terms that she be of good behaviour for a period of two years.
In my view notwithstanding she was successful in having some of the charges dismissed, given her conduct and the nature of the case I would also in all of the circumstances order that she pay the costs of the proceedings on an ordinary basis.

At a glance

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Judgment (6 paragraphs)

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Legislation Cited (6)

Cases Cited (13)

Cited By (2)