eSafety Commissioner v Rotondo

1. Persons who are not parties to this proceeding shall not publish the Orders of Justice Thomas of 20 October 2023, the schedule to that Order, or the affidavit of Luke Boon affirmed 19 October 2023, without leave of the Court.
2. Nothing in Order 1 affects the operation of order 6 of the Orders of Justice Thomas of 20 October 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The applicant has applied for an arrest warrant pursuant to r 42.14 of the Federal Court Rules 2011 (Cth) (the Rules). The application is brought on an urgent, ex parte basis. 2 On 20 October 2023, Thomas J made a number of injunctive orders on an interim basis arising from alleged contraventions by the respondent of ss 75 and 80 of the Online Safety Act 2021 (Cth). 3 In the principal proceeding, the applicant alleges that the respondent has posted what are described as "intimate images" on a website. The images are alleged to have been altered or artificially created to appear to be particular real persons. Such images are known as "deep fakes". 4 The fake images in this case are alleged to be of Australian public figures that have been created and published without their consent. 5 The applicant has filed an interlocutory application pursuant to Div 42.2 of the Rules for punishment of the respondent for contempt and an accompanying statement of charge. The applicant alleges that the respondent failed to comply with one of Thomas J's orders and has breached two other orders. The conduct alleged by the applicant includes the respondent publishing another deep fake image and sending prohibited material to various media outlets and other persons. 6 Rule 42.14 of the Rules provides relevantly: 42.14 Arrest (1) If an application for punishment of a contempt has been filed, or a proceeding has been started for punishment of a contempt, a party making the charge may apply to the Court for: (a) an order that the person charged give security for the person's appearance to answer the charge; or (b) the issue of a warrant, in accordance with Form 90: (i) for the person's arrest and detention in custody until the person is brought before the Court; and (ii) for the production of the person before the Court. (2) The party making the charge under subrule (1) must satisfy the Court that the person charged is likely to abscond or otherwise withdraw from the jurisdiction of the Court. 7 Rule 42.14 of the Rules contains two conditions of which the Court must be satisfied before the Court's discretion to issue a warrant is enlivened. They are: (a) an application for punishment of a contempt must have been filed, and (b) the Court must be satisfied that it is likely that the respondent will abscond or otherwise withdraw from the jurisdiction. 8 The first condition has been satisfied since an application for punishment of the respondent for contempt has been filed. 9 In Polis v Zombor (No 4) [2019] FCA 2101, O'Bryan J made the following observations about the second condition at [20]: As to the second condition, "abscond" generally implies fleeing the jurisdiction in order to avoid the punishment which might follow from a proved contempt and "withdraw" implies leaving the jurisdiction for reasons other than avoiding legal process or the likely results of it: Mensink at [93] per Wigney J and at [185] per Bromwich J, referring to Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641 at 644 and Schnabel at [10], [17]. In Schnabel, Hamilton J considered that the word likely (in the equivalent NSW Supreme Court rule) should be construed as requiring the fact to be established on the balance of probabilities (at [16]). 10 There is no requirement for the Court to engage with the merits of the contempt charge, even on a prima facie basis. In Polis at [19], O'Bryan J observed. It is not necessary for the party making the application or charge to prove a prima facie case; nor is the strength or weakness of the case a relevant consideration: Mensink v Parbery [2018] FCAFC 101; 358 ALR 209 (Mensink) at [84] per Wigney J, citing Schnabel v Lui (2002) 56 NSWLR 119; [2002] NSWSC 1184 (Schnabel) at [14] per Hamilton J. 11 The issue to be determined is whether the respondent is likely to abscond or otherwise withdraw from the jurisdiction to avoid the punishment that might follow from a proven contempt or to avoid the legal process. 12 An affidavit of a solicitor for the applicant reveals that the respondent ordinarily resides in the Philippines. The respondent arrived in Australia on 10 October 2023. His incoming passenger card indicates that he does not intend to reside in Australia for the next 12 months. He appears to be in Australia, at least in part, to attend a car race at the Gold Coast taking place on 27-29 October 2023. 13 On 5 May 2023, the applicant issued a removal notice and remedial direction to the applicant and provided it to him via his email address. There is evidence that the respondent replied: I am not a resident of Australia. The removal notice means nothing to me. Get an arrest warrant if you think you are right. 14 The email revealed an awareness on the part of the respondent of the difficulties his location in the Philippines would cause for any attempts to take enforcement action against him. 15 I am satisfied on the balance of probabilities that, unless an arrest warrant is issued, the applicant will return to the Philippines to avoid the possible consequences of the contempt proceedings. 16 I am conscious that the application has been brought on an ex parte basis and that issuing an arrest warrant will result in the respondent being deprived of his liberty. Nevertheless, in view of the likelihood of the applicant absconding to the Philippines once he becomes aware of the contempt proceeding, I am satisfied that it is appropriate to proceed ex parte. 17 I am satisfied it is appropriate that a warrant issue for the respondent's arrest and detention in custody until he is brought before the Court. 18 I propose to order that a warrant issue for the arrest and detention of the respondent. 19 In view of evidence that material prohibited under the orders made by Thomas J has been distributed to other persons, I also propose to make a further order prohibiting publication of that material. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.