Bruder Expeditions Pty Ltd v Leigh [2019] QDC 271

[29] On the first day of the hearing, Mr Martin QC further narrowed the ambit of the present application by reference to the first and third statements. Although Ms Leigh was given ample opportunity to respond, her defence did not extend to the substance of the application.

[30] The requirement under r 926(1) to specify the contempt in the application has to be viewed sensibly.[21] The level of specificity needed must depend upon the individual circumstances. The respondent was entitled to know the case against her, but there is a distinction between the charge and the provision of particulars. Particulars may supplement the application. There could be no uncertainty about the nature of the charge or the particulars in this case. The rules should not be applied with unnecessary technicality. Their purpose is to "facilitate the just and expeditious resolution of the real issues ... at a minimum of expense"[22] and to avoid "undue delay, expense and technicality".[23] What is important is that Ms Leigh and her lawyers understood the charge brought against her.[24]

[31] Mr Trewavas submitted the application was duplicitous on two bases: (i) it did not on its face identify which of the four statements had been repeated; and (ii) it joined two acts in the alternative ("posting or causing to be posted"). The argument misconceives the rule against duplicity. The rule does not apply to a proceeding for contempt.[25] Rather it prohibits the inclusion of multiple criminal offences in a single charge, and charges for unparticularised acts[26]. In any event, a charge expressed in the alternative would not be bad for duplicity. Indeed, such approach is common in criminal prosecutions on indictments when the evidence indicates the defendant must have acted in one of a number of ways, any one of which would constitute an offence.

Did Ms Leigh "post, or cause to be posted" the comments?

[32] The evidence of Ms Leigh's responsibility for the comments posted on 3 November 2019 was circumstantial but compelling. Like the earlier four statements she had made, the two posts were on the Lemon Caravan Facebook Group page. The pleadings had previously established that as the administrator of that site, Ms Leigh had the power to approve, deny or remove posts, as well as publish her own. There is no evidence to suggest any change to Ms Leigh's level of control. Even more specifically, the fresh posts were made under her name, and very quickly after the verdict against her. The content was consistent with information linked with Ms Leigh and her previous attitude towards Bruder. It included assertions about disclosure documents Ms Leigh had received in the course of the action. It indicated familiarity with the pleadings and the trial. The comments expressed the same views Ms Leigh had previously expressed about Bruder. There was no evidence to suggest that anyone other than Ms Leigh used her name to post on the Facebook page. There was no evidence to contradict a very strong inference that Ms Leigh was responsible for publishing the posts of 3 November 2019. It is the only reasonable conclusion open.

[33] Ms Leigh could not be in contempt unless she had prior knowledge of the terms of the injunction. She was present for the jury's verdict but had left the courtroom before Judge Sheridan made her orders. It is reasonable to expect that once the order was made, Ms Leigh's lawyers, in accordance with their duties, would have done what they reasonably could to inform Ms Leigh of the restraint upon her as soon as possible. The order was made on Friday afternoon. On the Saturday or Sunday, another post appeared on the same Facebook page in Ms Leigh's name, again purporting to be from Ms Leigh. Again, the only reasonable conclusion is that it was from Ms Leigh. It confirmed Ms Leigh knew of the new injunction. It read:

"I am restricted right now from publishing anything in relation to the First to Fourth publications in the Statement of Claim in the case of Bruder Expedition Pt Ltd v Tracy Leigh. That doesn't include Bruders' claim that they had a registered patent for the suspension and the lift mechanism of the roof...

What else was published in court? More to come when the final injunction orders are settled next week and I know what I can and can't expose about the trial, what was put into evidence and what I really know about the Bruder group of companies."

[34] The first paragraph's reference to a current restriction in terms of the "four publications" in Bruder's pleadings could only mean the injunction issued on 1 November 2019, because the interim injunction had been in broad and general terms.[27] The second paragraph of the post obviously raised the second part of Judge Sheridan's order, which had allowed for further submissions and amendment the following week.

[35] The evidence is unclear as to whether this post was before or after the alleged contempt, but it was certainly during the same weekend. It showed Ms Leigh knew the terms of the order by Sunday 3 November 2019, which points to advice from her trial lawyers, which in turn suggests she had been told on the Friday (1 November 2019). In the absence of contrary evidence from the defence, the irresistible inference was that Ms Leigh knew of the order before she had posted anything that weekend.

[36] Ms Leigh was restrained from publishing or enabling the publishing of any comments "substantially to the same effect" as the statements set out in the second amended statement of claim. The applicant contended that the publication in paragraph (a) of the application, was substantially the same as the first and third statements, and that the second post was also substantially to the same effect as matters in the first statement.

[37] The publication in paragraph (a) of the application alleged an ongoing defective weld design in Bruder caravans that jeopardised safety and which the company had concealed from its customers. It is therefore in the same vein as the first statement as set out in paragraphs [9] and [12] of the pleadings[28] which alleged Bruder had produced defective and unsafe caravans, with poor follow up service for customers. I find the matters in the first comment set out in the application to be substantially to the same effect as the first statement the subject of the injunction. I find beyond reasonable doubt that Ms Leigh thereby contravened the injunction made on 1 November 2019

[38] The second set of comments in paragraph (b) of the application are not self-contained. When read with the earlier posts, they appear to affirm comments in paragraph (a). Because paragraph (b) was posted so close in time to paragraph (a) and appears to be the same conversation, with the same audience, it adds little to the contempt in paragraph (a).

[39] Section 129(2) confers upon the District Court the same powers to punish for contempt as has the Supreme Court. By UCPR r 930(2) the court has a discretion to make an order that is contained in the Penalties and Sentences Act 1992 (Qld).

[40] Ms Leigh acted to republish allegations after a jury had found them to be false and substantially injurious, and after a judge had ordered her to stop. She did so very soon after the order had been made. It was a flagrant breach.

[41] Upon conviction, Mr Trewavas read an affidavit from Ms Leigh. In it Ms Leigh complained that instead of asking her to remove her offending posts, Bruder's solicitors flagged their intention to apply for her imprisonment for contempt. She has various mental health conditions. She swore that the shock of the verdict had "already extremely compromised" her mental health and that on receipt of the letter from Mills Oakley on 4 November 2019 her "mental health rapidly deteriorated further and (she) became suicidal". She consulted doctors the next afternoon. Her general practitioner referred her to the hospital. According to the hospital records she was crying continuously and reported "suicidal ideation". She was assessed and released. She removed the contempt that same night.

[42] There is no report from Ms Leigh's general practitioner, only the hospital records for 5 November 2019. They note Ms Leigh's pride in her Facebook page and its extensive reach (50 000 followers). She told hospital staff other caravan companies had tried, but failed, to stop her; and that Bruder's win had ruined her life. She also said that on the night of the verdict her lawyers had advised her to remove the Facebook group. She did remove it, but after drinking on the weekend she reopened it and posted again. She told the hospital about being threatened with imprisonment.

[43] The contempt was a flagrant defiance. It appears Ms Leigh targeted Bruder as part of a personal crusade. There was no suggestion of financial gain. One may infer an intention to protect consumers, but also a sense of self-importance and self-justification. The contempt was committed just two days after the judge had ordered Ms Leigh to stop. Intoxication cannot be an excuse. Nor can it explain Ms Leigh's contempt. Her words on 3 November were reasoned and articulate, clear, emphatic and deliberate. Among her posts that day was an essay setting out her commitment to free speech, the rights of the consumer and the need to stand up to wealthy companies. It concluded: "I took on the fight for all of us because I believed I had told the absolute truth...(A)s a result of seeing the disclosure documents I am even more convinced that I have told the absolute truth...And now I have recovered from the shock of the verdict, I am here to keep fighting for our collective consumer rights and for real justice."[29]

[44] Whatever Ms Leigh's personal opinion, Bruder's rights had been vindicated by a jury. A judge had only just made another order for their protection. Ms Leigh's affidavit suggests she still has no insight. She has shown no remorse. Her reply to the solicitor's email of 4 November was: "Needless to say, I will vigorously defend myself".[30] She did remove the post the next day, but that was pragmatism. She put Bruder to strict proof on the application. She sobbed through the hearing. It appeared to be more self-pity rather than contrition.

[45] Ms Leigh is a disability pensioner. She has little by way of assets. She will not have enough to satisfy the judgment in the trial. Evidently the judgment sum of $ 357,000 did not sufficiently deter her. Punishment and personal deterrence are required.

[46] Ms Leigh does seem frightened about the prospect of prison. A suspended term of imprisonment would probably be an effective deterrent. Imprisonment however must be the sentence of last resort[31]. The parties cited cases where fines were imposed, but Ms Leigh does not have the capacity to pay a significant fine.

[47] What Ms Leigh does have is free time. Unpaid community service could punish and deter in a meaningful way. When I first asked Ms Leigh about it, she said : "I have no choice". Of course, she did have a choice to make. Ultimately she agreed to the order. Neither she nor her counsel indicated incapacity for community service work. She was ordered to perform 200 hours of community service on the conditions set out in s 103 of the Penalties and Sentences Act 1992.

[48] The issue of costs is almost certainly academic, but the order was made against Ms Leigh.

1. The respondent is found to have been in contempt of the order of Sheridan DCJ made on 1 November 2019.

2. The respondent is to perform unpaid community service on the conditions set out in s 103 of the Penalties and Sentences Act 1992 and must report to the Probation and Parole office at Rockhampton by 12:00 pm 13 December 2019.

3. The respondent is to pay the applicants costs of the application.

[1] Affidavit of Craig John Bevan sworn 4 November 2019.

[2] Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 39 ALJR 32; Australian Securities and Investment Commission v 1st State Home Loans Pty Ltd [2002] QSC 55.

[3] [2006] QCA 294; [2006] 2 Qd R 531 per Keane JA at [63].

[4] See District Court of Queensland Act 1967 (Qld) s 129; Lade & Co Pty Ltd v Black [2006] QCA 294; [2006] 2 Qd R 531; [2006] QCA 294, [65] Keane JA, (Jones J agreeing); Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, [31]; Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 234 IR 59; [2013] VSC 275, [8].

[5] Lade & Co Pty Ltd v Black [2006] QCA 294; [2006] 2 Qd R 531 per Keane JA at [63]; Witham v Holloway (1995) 183 CLR 525, 534.

[6] Costello v Courtney [2000] QSC 67; [2001] 1 Qd R 481 at para [9].

[7] Written Submissions on Behalf of the Respondent - Procedural Issues, [7].

[9] Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58, par [36], [137], [140].

[10] See Affidavit of Craig John Bevan sworn 4 November 2019, par [6] cf Affidavit of Adrian Hayley Fraser sworn 12 November 2019, exhibit AHF1.

[11] Affidavit of Craig John Bevan sworn 4 November 2019.

[12] [1989] HCA 34; (1989) 167 CLR 251; (1989) 86 ALR 513.

[13] [2008] QSC 91.

[14] MacGroarty v Attorney-General (Qld) (Clauson) [1989] HCA 34; (1989) 167 CLR 251; (1989) 86 ALR 513, 514.

[16] See e.g. Australian Securities and Investments Commission (ASIC) v Jorgensen [2008] QSC 91 at [16].

[17] Written Submissions on Behalf of the Respondent - Procedural Issues [8 - 12].

[18] See MacGroarty v Attorney-General (Qld) (Clauson) [1989] HCA 34; (1989) 167 CLR 251; (1989) 86 ALR 513 517, where it was unclear whether the charge alleged contempt by wilful insult, wilful interruption, or misbehaviour, within s 105(1)(a), (b) or (c).

[19] [2008] QSC 91.

[20] Australian Securities and Investments Commission (ASIC) v Jorgensen [2008] QSC 91 at [17].

[21] O'Connor v Hough [2016] QSC 4 at [36] (Burns J).

[22] Uniform Civil Procedure Rules 1999 (Qld) r 5(1).

[24] O'Connor v Hough [2016] QSC 4, [36] (Burns J).

[25] O'Connor v Hough [2016] QSC 4, [27] to [29]. The respondent cited the New South Wales case of Environmental Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204,[31] to [53] where the New South Wales environmental protection authority sought to prosecute on one charge, but did not particularise its case beyond "22 lever arch files of evidence" and "254 paragraphs" in a draft statement of facts. The court referred to the rule against duplicity that applies to charges in an indictment. This is not a charge on an indictment.

[26] to prevent the risk of another prosecution for the same offence.

[27] Obviously the posts would have contravened the interim injunction had it still been in place.

[29] Affidavit of Craig John Bevan sworn 4 November 2019 par [8].

[30] Affidavit of Adrienne Hayley Fraser, AHF4.

[31] Penalties and Sentences Act 1992, s 9(2) (a) (i)