Ferguson v Dallow

O'CALLAGHAN J: 1 The applicant is the Leader of the House of Assembly of the Parliament of Tasmania and a Minister of the Crown. 2 Mr Dallow, the respondent, holds himself out as a journalist and operates a website called "TAS News 24", together with a YouTube channel. 3 In Ferguson v Dallow (No 3) [2021] FCA 177, I found Mr Dallow guilty of two contempts, as follows: THE COURT DECLARES THAT: 1. Kane Scott Dallow is guilty of contempt of court, in that, having been personally served on 2 December 2020 with the applicant's amended originating application, orders made by Kerr J on 2 December 2020 (2 December orders), and the court's reasons for making the 2 December orders, such orders containing in order 2 a requirement that he be restrained from publishing, republishing, distributing, disseminating or making available for viewing: (a) the video entitled 'Behind the Classroom Door' (first video) published on the website www.tasnews24.tv (website) and on the online platform www.youtube.com (YouTube); (b) the video entitled 'Update Behind the Classroom Door' (second video) published on the website and YouTube; and (c) the allegations made against the applicant in the first and second videos for a period of 7 days commencing immediately upon the applicant's amended originating application, the 2 December orders and the court's reasons having been served upon him (the period), he intentionally disobeyed the 2 December orders by publishing within the period, namely on or about 7 December 2020, a video entitled 'Legal Update' (third video) on the website and YouTube, such third video publishing, republishing, distributing, disseminating or making available for viewing the allegations made against the applicant in the first and second videos. 2. Kane Scott Dallow is guilty of contempt of court, in that having been present in the Federal Court of Australia at Hobart on 9 December 2020 at approximately 5:30 pm Australian Eastern Daylight Savings Time when White J pronounced orders via audio-visual link from the Federal Court of Australia at Adelaide (9 December orders), such orders including that he be forthwith restrained until 5:00 pm on 21 December 2020 from publishing, republishing, distributing, disseminating or making available for viewing: (a) the first video published on the website and YouTube; (b) the second video published on the website and YouTube; (c) the third video published on the website and YouTube; and (d) the allegations made against the applicant in the first, second and third videos whether in the form of those videos or otherwise, and whether directly or indirectly (order A); and for the purposes of order A, was ordered to remove the third video from the website and YouTube within two hours of the order or as soon thereafter as was reasonably possible (order B), he intentionally disobeyed order B by failing to remove the third video from YouTube within two hours of the 9 December orders having been made. 4 On 19 February 2021, White J made permanent orders in the proceeding, as follows: 1. [Mr Dallow] be restrained permanently from publishing, republishing, distributing, disseminating or making available for viewing: (a) the video entitled 'Behind the Classroom Door' (the First Video) published on the website, www.tasnews24.tv (the Website) and on the online platform, www.youtube.com (YouTube). (b) the video entitled 'Update Behind the Classroom Door' (the Second Video) published on the Website and YouTube. (c) the video entitled 'Legal Update' (the Third Video) published on the Website and YouTube. (d) the allegations made against the applicant in the First Video, the Second Video or the Third Video, whether in the form of those videos or otherwise, and whether directly or indirectly. 5 By an interlocutory application in this proceeding dated 12 March 2021, the applicant seeks declarations that Mr Dallow is guilty of two further contempts of this court. He relies on an amended statement of charge dated 14 April 2021, which is in these terms: You are charged with contempt of court in that: First Charge 1. Intentional disobedience of Orders made by the Honourable Justice White on 19 February 2021. Particulars: Having been personally present in Court at the Federal Court of Australia at Hobart in the State of Tasmania on 19 February 2021 when the Honourable Justice White was sitting in the Federal Court of Australia in Adelaide in the State of South Australia via audio-visual link to the Federal Court of Australia at Hobart in the State of Tasmania, and having been personally served with the orders made by the Honourable Justice White made on 19 February 2021 (Orders) on 24 February 2021 at approximately 10:33am, such Orders containing in Order 1 a requirement that you 'be permanently restrained from publishing, republishing, distributing, disseminating or making available for viewing: (a) the video entitled 'Behind the Classroom Door' (the First Video) published on the website www.tasnews24.tv (the Website) and on the online platform www.youtube.com (YouTube); (b) the video entitled 'Update Behind the Classroom Door' (the Second Video) published on the Website and YouTube; (c) the video entitled 'Legal Update' (the Third Video) published on the Website and YouTube (d) the allegations made against the applicant in the First video, the Second Video or the Third Video, whether in the form of those videos or otherwise, and whether directly or indirectly'; on or about 7 or 8 March 2021 you intentionally disobeyed the Orders of the Honourable Justice White: (a) by publishing on the Website and YouTube a video entitled 'Broken Parliament' (Fourth Video), the Fourth Video indirectly publishing, republishing, distributing, disseminating or making available for viewing the allegations made against the applicant in the First Video, the Second Video and the Third Video; and (b) by publishing a post a tweet [sic] to Twitter containing a link to the Fourth Video. Second Charge 2. Scandalising the Court Particulars: In the Fourth Video you included the following words: There seems to be a ring of protection for anyone that is involved in Parliament and this ring of protection is of the highest power and continues to play a major significance, even outside the walls of Parliament House. Members including Ministers are protected on every level including the most recent case involving a Tasmanian minister caught up in allegations of [redacted], who to date hasn't responded to the allegations, nor has the allegations been made public. Again the ring of protection is hard at work as the politician in this case is being protected by every level of the Government and sadly more to the point by the Courts. such words conveying and intended to convey to members of the Australian public that: (a) the courts, including the Federal Court of Australia, are part of a ring of protection to protect politicians, including Ministers of the Crown; (b) the courts, including the Federal Court of Australia, are not independent of the executive and parliamentary branches of government; (c) the courts, including the Federal Court of Australia, act to cover up allegations of misconduct by politicians, particularly Ministers of the Crown; (d) the courts, including the Federal Court of Australia, give preferential treatment to politicians, including Ministers of the Crown. 6 Mr Dallow pleaded not guilty to both charges. 7 For the reasons that follow, I find Mr Dallow guilty of the two contempts the subject of the amended statement of charge. 8 The applicant relied upon: (1) The interlocutory application. (2) The amended statement of charge. (3) An affidavit of Mr Brett Cassidy, a principal of Page Seager (the firm of solicitors acting for the applicant), sworn 9 March 2021. Mr Cassidy deposes to Mr Dallow's publication of the fourth video the subject of the charges, and to news articles concerning this proceeding. He also deposes to some particular content of Mr Dallow's website, and to the fact that on 8 March 2021 a "tweet" was available on Mr Dallow's Twitter account which provided a link to the fourth video. The tweet included the words "Tonight we uncover the levels of alleged [redacted] and power play committed by members of parliament in Tasmania. Tune in tonight @ 7pm AEST on our website tasnews.24.tv or via our YouTube channel". Mr Cassidy's affidavit also annexed a digital copy of the fourth video, which was played at the hearing (in closed court). (4) An affidavit of Mr Kyle Dolbey, a solicitor employed by Page Seager, sworn 27 April 2021. Mr Dolbey deposes to having accessed Mr Dallow's website and his YouTube channel on 8 March 2021. He deposes to having watched the fourth video on Mr Dallow's website and YouTube channel on that date. He also produces a transcript of the fourth video. Those parts of it which are relevant are annexed as Confidential Annexure A to these reasons. (5) Two affidavits of Ms Leeanne Johnson, a process server, sworn 25 February 2021 and 30 April 2021. Ms Johnson deposes to serving various documents on Mr Dallow, including (on 24 February 2021) White J's 19 February 2021 orders, and (on 29 April 2021) the interlocutory application, the amended statement of charge and the affidavits referred to above. 9 As in Ferguson v Dallow (No 3) [2021] FCA 177, I have again taken the precaution of making the published part of the transcript of the video confidential, because the allegations are very serious. Further, as a result of the entry of judgment against him in the underlying proceeding, the applicant's allegations that the videos are defamatory are now deemed to be admitted. 10 Mr Dallow elected not to adduce any evidence in his defence. 11 The first charge alleges that on or about 7 or 8 March 2021 Mr Dallow intentionally disobeyed White J's 19 February 2021 orders by publishing the fourth video on the website and YouTube, and by publishing the post to Twitter containing a link to the fourth video, because such publication constituted an indirect publishing, republishing, distributing, disseminating or making available for viewing of the allegations made against the applicant in the first, second and third videos. 12 The court's power to punish contempt of court is conferred by s 31(1) of the Federal Court of Australia Act 1976 (Cth), which provides that "[s]ubject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court". The power of the High Court to punish for contempt is the same as that which was possessed by the Supreme Court of Judicature in 1903. See s 24 of the Judiciary Act 1903 (Cth). 13 The contempts alleged in this case are criminal contempts. 14 The charges must be proved beyond reasonable doubt. See, eg, Witham v Holloway (1995) 183 CLR 525; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375. 15 Although this case is brought by a party to it, "the cardinal feature of the power to punish for contempt" is "that it is an exercise of judicial power by the courts, to protect the due administration of justice". Re Colina; Ex parte Torney (1999) 200 CLR 386 at 429 [112] (Hayne J) (emphasis in the original). 16 In order to find that Mr Dallow is guilty of the contempt alleged by the first charge, the court must be satisfied beyond reasonable doubt of the following five matters: (1) an order was made by the court; (2) the terms of the order are clear, unambiguous and capable of compliance; (3) the order was served on the alleged contemnor or excused in the circumstances, or service was dispensed with pursuant to the rules of court; (4) the alleged contemnor has knowledge of the terms of the order; and (5) the alleged contemnor deliberately and voluntarily breached the terms of the order. 17 The first four matters were not in dispute. 18 The applicant alleges that, although the fourth video does not in terms specifically name Mr Ferguson, Mr Dallow intentionally disobeyed the order by indirectly republishing, distributing, disseminating or making available for viewing the allegations made in the first, second and third videos about the applicant. 19 Mr Gunson SC, who appeared with Ms Sawyer for the applicant, submitted in closing address that "when it is looked at in the context of the state of play as it was when the video was published, it's our submission that it leads to a clear indirect identification of Mr Ferguson in the sense that anyone who wanted to find out who the Cabinet Minister was would be able to do so extremely easily". 20 Mr Gunson pointed in particular to these matters as giving rise to an indirect identification of the applicant, whether taken individually or cumulatively. 21 First, at [64] of the transcript of the fourth video, Mr Dallow says: "Tasmania Police emailed Your Story this year after we featured a number of segments relating to allegations of [redacted] by an MP of Tasmania". Mr Gunson submitted, and Mr Dallow did not say otherwise, that the only such segments "featured" on Mr Dallow's website or YouTube channel concerned, and only concerned, the applicant. 22 Second, Mr Gunson pointed to the transcript of the fourth video at [24] and [27], where Mr Dallow refers to "the most recent case involving a Tasmanian minister caught up in allegations of [redacted], who to date hasn't responded to the allegations, nor has [sic] the allegations been made public"; and "the most recent [redacted] allegations relating to a current serving minister". Mr Gunson submitted that, in the overall context of the video, these are indirect references to the applicant, including because under the Tasmanian Constitution the number of current Ministers can be no greater than nine (citing s 8A of the Constitution Act 1934 (Tas)). 23 Third, it was submitted that news articles available online at the time the fourth video was published identified the applicant as the individual who had issued defamation proceedings against Mr Dallow. They included an online article in the Launceston Examiner dated 9 December 2020 headed "Defamation charges against Kane Dallow begin Tasmania's Federal Court", which included in the body of the article the following: "Senior government minister Michael Ferguson has taken action against Kane Dallow with the court on December 2 in relation to allegations made against him in two online videos". Another article in the Examiner, dated 8 March 2021, described my contempt findings in Ferguson v Dallow (No 3) [2021] FCA 177, including that Mr Dallow had "been found guilty of contempt of court twice during defamation proceedings brought against him by cabinet minister Michael Ferguson". 24 Fourth, Mr Gunson pointed to the fact that the tweet (see [8(3)] above) and the video itself directed viewers to Mr Dallow's website, where, at the time the fourth video was published, a letter from Page Seager to Mr Dallow dated 4 December 2020 was posted. That letter referred expressly to this proceeding (TAD 31 of 2020) and alleged, among other things, that the applicant, identified in terms as Mr Ferguson, "considers that the First Video contains grossly defamatory imputations against him". 25 Mr Gunson summed up those points as follows: So our submission is that particularly the inclusion of that correspondence on the website at the time of the publication of the video, together with the ability to find media articles easily about the matter, inevitably links the allegations in the video to Mr Ferguson even though he's not expressly named in there. There are a couple of other matters that arise in that regard that are also available on the internet as a matter of public record … the decisions of White J and also, of course, the decision of your Honour, albeit in redacted form, on the internet that was published on 5 March. And also the judgment of Kerr J back with the original injunctive relief. All of them appropriately worded to enable - or to meet the requirements of [open] justice by having them published on the internet, but extremely easy to find, and the submission essentially is that it creates a situation where someone doing very basic searches can literally add up one and one and get two. That just leads inevitably to that conclusion, especially when factoring in matters such as the very small pool of potential candidates for who it could be to start with, a maximum of nine … 26 Mr Dallow submitted that he did not breach the terms of White J's order because he did not name the applicant in the fourth video. Mr Dallow put his submission in that regard as follows: I find it difficult to see the - how it correlates to the applicant in the better part of what Mr Gunson is saying because of the fact that, yes, there was no mention indirectly about Mr Ferguson. There was no mention of his Parliamentary title, no photographs were shown of him, his name wasn't mentioned, nothing like that. 27 Mr Dallow submitted that the reference in the fourth video to a Minister in the Tasmanian Government was a reference to another (unnamed) Minister. 28 I am satisfied beyond reasonable doubt that Mr Dallow intentionally and indirectly published, republished, distributed, disseminated or made available for viewing the allegations made against the applicant in the first, second and third videos. Given the surrounding circumstances upon which Mr Gunson relies and which are set out above, it is fanciful to imagine that Mr Dallow could have had any other Tasmanian Government Minister in mind, or that a member of the public could, with knowledge of the surrounding circumstances referred to above, have imagined that Mr Dallow was referring to anyone other than the applicant. Mr Dallow was well aware that the terms of White J's order prohibited him from "indirectly" publishing, republishing, distributing, disseminating or making available for viewing the allegations against the applicant, and I am satisfied that that is exactly what he did, and exactly what he intended to do. 29 Accordingly, I find Mr Dallow guilty of the contempt alleged in charge 1. 30 I turn now to charge 2. 31 As Rich J explained in R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442: The Court is called upon to exercise its summary power of punishing contempts of Court. This jurisdiction … exists for the purpose of preventing interferences with the course of justice. Such interferences may arise from publications which are calculated to embarrass a tribunal in arriving at its decisions. Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained. The cases are collected and the principles expounded in the judgment of Evatt J. in R. v. Fletcher; Ex parte Kisch [(1935) 52 CLR 248 at 257-8]. The necessity of maintaining the authority of this Court against such attacks is, perhaps, even greater than in the case of Courts under a unitary system of government. It is the constantly recurring task of this Court to decide upon the validity of the enactments of one or other of the seven Governments of Australia. Thus the Court occupies a position which makes any tendency to weaken its authority a matter of especial concern. 32 In the same case, Dixon J observed at 447: I agree for the reasons given by Rich J. that the article published contains a contempt. The jurisdiction which we are called upon to exercise is one which cannot but be attended with some difficulty. It is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority. But it must be done by judicial remedies, and judicial remedies are necessarily administered by the Courts themselves. The Court must, therefore, undertake the task notwithstanding the embarrassment of considering what it should do in relation to an attack upon itself. There is no practicable alternative. It can but do its best to disregard all considerations except those which strictly relate to the question whether the publication amounts in law to a contempt. That question is whether, if permitted and repeated, it will have a tendency to lower the authority of the Court and weaken the spirit of obedience to the law to which Rich J. has referred. The article in this case, upon a close analysis, presents one difficulty. It inspires a feeling that its real purpose has not been fully disclosed. It is difficult to discover the reasons which animated its publication. But, whatever be the reason for the article, I am confident that any ordinary reader who read it would deduce from it that it charged the Court with a wanton destruction of legislation effected by the exercise of excessive legal ingenuity. 33 The actual intention or purpose lying behind a publication in cases of this type "is never a decisive consideration. The ultimate question is as to the inherent tendency of the matter published". John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 371 (Dixon CJ, Fullagar, Kitto and Taylor JJ). 34 More recently, the High Court summarised the relevant principles in the context of refusing an application for special leave to appeal in Gallagher v Durack (1983) 152 CLR 238. Although "statements made in the course of reasons for refusing an application for special leave create no precedent and are binding on no one" (see Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 133 [112] (Kiefel and Keane JJ)), it is instructive to set out the following passage from the reasons in Gallagher v Durack at 243 (Gibbs CJ, Mason, Wilson and Brennan JJ): The principles which govern that class of contempt of court which is constituted by imputations on courts or judges which are calculated to bring the court into contempt or lower its authority had been discussed by this Court in Bell v. Stewart [(1920) 28 CLR 419] and R. v. Fletcher; Ex parte Kisch [(1935) 52 CLR 248] before R. v. Dunbabin; Ex parte Williams [(1935) 53 CLR 434] was decided, and the judgment of Rich J. in the last mentioned case is consistent with what had been said in the earlier decisions. The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that 'it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority': per Dixon J. in R. v. Dunbabin; Ex parte Williams [at 447]. The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment 'is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable': R. v. Fletcher; Ex parte Kisch, per Evatt J. [at 257]. 35 In this case, the applicant says that the following statements made by Mr Dallow in the fourth video constitute interference with the course of justice and thus a contempt: (1) "There seems to be a ring of protection for anyone that is involved in Parliament and this ring of protection is of the highest power and continues to play a major significance, even outside the walls of Parliament House." (2) "Members including Ministers are protected on every level including the most recent case involving a Tasmanian minister caught up in allegations of [redacted], who to date hasn't responded to the allegations, nor has [sic] the allegations been made public." (3) "Again the ring of protection is hard at work as the politician in this case is being protected by every level of the Government and sadly more to the point by the Courts." 36 Mr Dallow submitted that when he referred to the "Courts" being involved in a "ring of protection" he was "not actually referring to the Federal Court", and was in fact "referring to another court". 37 I reject Mr Dallow's submission. It is self-evidently absurd. 38 It is this court that has found Mr Dallow's previous videos concerning what he describes as "the most recent case involving a Tasmanian minister" to be defamatory. It is this court that has restrained him from publishing those videos. And it is this court that has found him guilty of contempt when he breached those restraints. Those are all matters of public record. See [23] above; Ferguson v Dallow [2020] FCA 1739; Ferguson v Dallow (No 2) [2021] FCA 152; Ferguson v Dallow (No 3) [2021] FCA 177. In those circumstances, it is impossible to imagine that Mr Dallow intended to refer to any court other than this court, or that a reasonable observer would have understood him to be referring to any court other than this court. 39 I am satisfied beyond reasonable doubt that Mr Dallow intended his comments about the "ring of protection" to include this court, and that the public would so understand them. 40 I am also satisfied beyond reasonable doubt that what Mr Dallow said in the part of the fourth video which is the subject of charge 2 conveyed and was intended to convey to the public that this court: is part of a ring of protection to protect politicians, including Ministers of the Crown; is not independent of the executive and parliamentary branches of government; acts to cover up allegations of misconduct by politicians, particularly Ministers of the Crown; and gives preferential treatment to politicians, including Ministers of the Crown. 41 Conduct by a person which asserts any of those things, whether expressly or impliedly, is calculated to scandalise the court and to lower its authority, which in turn must impair the confidence of the public in the judgments and processes of the court. Compare, eg, Viner v Australian Building Construction Employees' and Builders Labourers' Federation [1982] FCA 42; 2 IR 177 at 182 (Northrop J). 42 Such a contempt, involving as it does the assertion that a member of the Executive can have a court do his or her bidding, is a serious one. Compare Re Brookfield (1918) 18 SR (NSW) 479; Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887; Gallagher v Durack [1982] FCA 280; 44 ALR 477; Viner v Australian Building Construction Employees' and Builders Labourers' Federation [1982] FCA 42; 2 IR 177. 43 For those reasons, Mr Dallow is guilty of the contempt alleged in charge 2. 44 I will re-list the application for a penalty hearing on 24 May 2021. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.

Transcript of Fourth Video Annexure 3.1 to the affidavit of Kyle Dolbey dated 27 April 2021 [Redacted]