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Category: Procedural rulings

Parties: Sergei Sergienko (First Defendant – Respondent)
Oliver Roths (Second Defendant – Applicant)

Representation: Counsel:
H Altan (Second Defendant – Applicant)
Solicitors:
Bluecrest Legal (First Defendant – Respondent)
ASH Legal (Second Defendant – Applicant)

File Number(s): 2025/2633249

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: This case raises the interaction between the principles applying to attempts to enjoin the publication or dissemination of allegedly scurrilous or harmful material, as in the nature of a defamation, on the one hand and the extent to which improper pressure by words or conduct allegedly having “as a matter of practical reality, a tendency to interfere with the course of justice” may constitute a contempt of court on the other hand.

2. Oliver Roths is the second defendant in these proceedings. By his notice of motion dated 26 March 2026, he seeks an order pursuant to s 66 of the Supreme Court Act 1970 and the inherent jurisdiction of the Court that Sergei Sergienko, the first defendant, be restrained from publishing material or communicating with third parties in relation to Mr Roths’ past or present businesses, convictions or alleged wrongdoing, as well as from publishing material or communicating with third parties concerning his relationship with his former wife Malgorzata Izabela Kwoka. The factual and litigious matrix from which these proceedings in general, and Mr Roths’ concerns in particular, emerge is relatively complex and not easily summarised: see, for example, Sergei Sergienko v AXL Financial Pty Limited [2021] NSWSC 297 and IWC Industries Pty Ltd v Sergienko [2021] NSWCA 292. Accordingly, a familiarity with those decisions and the matters that they relate to is assumed for present purposes.

3. Mr Sergienko opposes the relief sought in the notice of motion. In summary, he observes that the question is not whether Mr Roths has found aspects of the litigation stressful or unpleasant but whether the conduct complained of and relied upon by him has had, or continues to have, a tendency improperly to interfere with the administration of justice. In Mr Sergienko’s view, Mr Roths in effect invites the Court to accept as fact the serious allegation that Mr Sergienko engaged in intimidation, harassment and conduct having the alleged tendency. Those allegations depend substantially upon acceptance of Mr Roths’ own evidence about these events and the inferences he asks the Court to draw. That in turn calls for an assessment of the weight and reliability of that evidence. Mr Sergienko submits that the evidence does not support Mr Roths’ claims for the relief he seeks but amounts to no more than speculation, opinion and submissions based on hearsay and inadmissible evidence.

4. The authorities support the proposition that whether or not some particular conduct complained of has a tendency to interfere with the administration of justice is to be assessed both objectively and subjectively. Factors of that kind are at play in this application. In those circumstances, for reasons that I trust will become clear later, the preferable course is first to examine the authorities concerning the general question of determining what conduct qualifies before examining the particular conduct upon which Mr Roths relies.

Power

5. Section 66 provides relevantly as follows:

66 Injunction

(1) The Court may, at any stage of proceedings, by interlocutory or other injunction, restrain any threatened or apprehended breach of contract or other injury.

(2) Subsection (1) applies as well in a case where an injury is not actionable unless it causes damage as in other cases.

(3) …

(4) The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do.

6. Mr Roths contends that the conduct that he asserts Mr Sergienko has engaged in has caused him injury, including the disruption of his business affairs and mental harm.

Authorities

7. In John Fairfax & Sons Pty Ltd and Reynolds v McRae (1955) 93 CLR 351; [1955] HCA 12 at 371, the High Court said this:

“The actual intention or purpose lying behind a publication in cases of this kind is never a decisive consideration. The ultimate question is as to the inherent tendency of the matter published. But intention is always regarded by the court as a relevant consideration, its importance varying according to circumstances. In the present case we think that it is of more importance than usual. For here not only is it clear that nobody in the Herald office had the slightest intention of committing a contempt, or the slightest intention or desire of doing or saying anything which might affect in any way the conduct or outcome of any legal proceeding. It is also clear that to those responsible for what was published in the Herald the guilt or innocence of Rigby on any charge pending against him was a matter of complete indifference. From their point of view it did not matter one iota whether Rigby had committed, or been charged with, a grave offence or a petty offence or no offence at all. What concerned them, and all that concerned then [sic], was that a statement had been made, subject to a sanction equivalent to that attaching to an oath, that a man had been grossly maltreated by police constables after being taken into custody.”

8. The governing principles remain those identified by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1, reaffirmed by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [19] concerning the application in what has long been recognised as the special context of a defamation action of the principles according to which the discretionary remedy of an interlocutory injunction is granted:

“The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd … and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed. In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved. Where one such issue is justification, it is commonly an issue for jury decision. In addition, the plaintiff’s general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded.” (Footnotes omitted.)

9. Improper pressure upon litigants, which has a real tendency to deter or influence them in relation to proceedings, may amount to contempt. The principles that apply have been conveniently summarised by Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27-30.

10. The learned analysis of the President in that case was referred to approvingly by the Industrial Relations Commission of New South Wales in Industrial Registrar of New South Wales v Uniting Church in Australia Property Trust (NSW) (2003) 131 IR 368 at [36] in the following relevant terms:

“The proceedings in Harkianakis involved a consideration of whether material published in a newspaper constituted contempt in that there was an intention to interfere with the course of justice in existing defamation proceedings by subjecting the claimant to improper pressure not to proceed in those proceedings. Whilst not wishing to detract in any way from the comprehensive and incisive analysis of the authorities in this area, it is possible to discern some statements of basic principle from the judgment of Mason P which will be of assistance in the determination of these proceedings. His Honour’s analysis and consideration of the relevant authorities and his Honour’s conclusions as to questions of principle to be drawn from them are respectfully adopted in determining these proceedings. They are:

1. Where the charge brought against the respondents is an allegation of criminal contempt, it must be established beyond reasonable doubt.

2. It is not necessary to determine whether or not there was an intention on the part of the respondent to interfere with the proper administration of justice. It is sufficient for the applicant to prove to the requisite criminal standard that the conduct complained of has, ‘as a matter of practical reality’, the impugned tendency to interfere with the course of justice in the context of these proceedings. …

3. There is ‘a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material’. Relevantly for these proceedings, improper pressure will include a tendency to deter the applicants in the substantive proceedings from continuing with the litigation, including the potential for ‘interference in the litigant’s freedom to conduct the litigation as he or she chooses’. Relevantly this will include a tendency to interfere improperly with negotiations towards the settlement of a pending suit. In this context it is not necessary that there be demonstrated actual interference with the conduct of proceedings by a litigant but merely a tendency to so interfere.

4. There is an unresolved question as to whether one measures the tendency to interfere with litigation by reason of ‘the capacity to withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of “ordinary” fortitude who might be capable of influence by similar pressure applied in similar circumstances’. (Mason P tended towards the latter approach as being correct, although his Honour said that it was not necessary that he resolve that issue in those proceedings.) In Bhagat v Global Custodians Ltd [2002] NSWCA 160, after referring to Harkianakis and other authorities, Spigelman CJ observed at [49]:

‘These authorities are concerned with the law of contempt by publication, in which context different considerations arise when balancing the public interest in freedom of speech against the public interest in the administration of justice. In such cases the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent. At least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper. At least in such a context, I do not see why the Court must choose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety.’

In the same case, in agreeing with the Chief Justice, Ipp AJA said at [54]:

‘[A]t least in cases of contempt of Court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications.’

5. In considering the conduct which would constitute improper pressure on litigants and interference with their ability to litigate their case, Mason P concluded that: ‘Pressure may be actual or threatened, conditional or unconditional. What is done (or threatened) may be lawful or unlawful conduct. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper … .’ (at 30).

6. The preferred test in Australia was that contained within the judgment of Jordan CJ in Bread Manufacturers, previously extracted. This consisted of achieving a balance between the position of improper pressure on a litigant in connection with the substantive proceedings against the necessary public and open debate about the subject matter of the litigation. The former included also the necessity of ensuring a fair trial of the substantive proceedings. This approach was to be preferred to the approach personified by the House of Lords decision in Times Newspapers, previously referred to, especially as there were, in Mason P’s analysis, unresolvable differences of approach between several of the judgments in that case.

7. In determining whether conduct (whether constituted by publication of material or otherwise) has the tendency to bring improper pressure to bear on a litigant by reason of its characteristics, it is necessary to consider the total context within which the alleged improper conduct occurs, and to take into account that there will be ‘special defences such as fair comment and justification’ which are available.

8. In determining the proper approach to the matter the following statement of principle enunciated by Lord Reid in Times Newspapers case (at 294) is apposite:

‘The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.’

9. The decided cases, in determining whether publication of material has amounted to contempt by bringing to bear improper pressure on litigants, have considered matters such as whether or not the publication has constituted ‘an unbalanced and scurrilous attack lacking in any justification …’, whether there is ‘vehemence’, ‘unrestrained language and evocative imagery’, whether the litigant has been held up to ‘public obloquy and derision’, whether the language used in the publication can be described as ‘intemperate’, ‘execration’, and ‘public ridicule’, and the like.

10. The onus of displacing the necessity to have regard to considerations of public policy rests on the prosecution (at 42).

‘So too does that of displacing any justification defence fairly open on the facts. The mere presence of an inaccurately stated fact or florid language will not suffice to establish contempt. The whole context needs to be determined before what is said and the manner it is expressed can be identified as having crossed the line between the offensive and the contemptuous. But that line is crossed when it is proved that the publication has the tendency to deter and where a party is vilified without justification because he or she is a litigant or because of the litigation or the allegations made in it.’”

Consideration

11. The burden of Mr Roths’ claims in this application is that Mr Sergienko has embarked upon a campaign, or a consistent and continuing course of conduct, with the aim, or which has had the effect, of deterring him from taking an active role in the present proceedings. Conduct that preceded the institution of the present proceedings allegedly includes sending what are described as anonymous packages containing newspaper clippings about Mr Roths that he maintains have been sent to his business associates and persons who had interacted with social media posts relating to Mr Roths or entities with which he is associated. Mr Roths maintains that by reason of this, and other, conduct, he “abandoned” the proceedings that were ultimately heard by Hammerschlag CJ in Eq in 2021. Mr Roths says he did not participate in that litigation or provide documents that may have been relevant to the determination of issues in the proceedings because he was afraid of the consequences of doing so as the result of threats made to him and duress to which he has been subjected by Mr Sergienko.

12. Conduct that allegedly occurred after the institution of the present proceedings includes the sending of anonymous letters to various persons who have commented upon a LinkedIn post congratulating Mr Roths’ former wife on her promotion, referring to her relationship with Mr Roths and suggesting that she is “intimately partnered with a convicted fraudster” who “consorts with known criminals and drug dealers”. Mr Roths also complains about the sending of an anonymous package to the Scouts containing newspaper clippings about him that are materially identical to those sent in 2019. Mr Roths maintains that Mr Sergienko was responsible for this and that he also telephoned the Scouts about Mr Roths.

13. Mr Roths’ evidence is contained in two affidavits sworn by him on 26 March 2026 and 26 June 2026. Much of his evidence is the subject of extensive and detailed objections. Mr Roths was not cross-examined.

14. In response to this evidence, Mr Sergienko submitted that Mr Roths was inviting me to accept that anonymous communications were received as the result of which he suffered financial, reputational or personal loss and that in all of the circumstances the only rational inference is that Mr Sergienko must have been responsible. Mr Sergienko submitted that there is no admissible evidence that supports such a case.

15. For example, Mr Roths repeatedly asserted that the so-called anonymous publications and correspondence originated from Mr Sergienko or someone associated with him when Mr Sergienko submitted there is no admissible evidence to support the assertions. Moreover, Mr Roths has claimed that he has sustained financial loss but provides no documents or other evidence to support such a claim. Mr Roths also submits that the conduct complained of has caused him psychological damage but proffers no supporting evidence.

16. In response to Mr Roths’ allegations, Mr Sergienko affirmed an affidavit dated 1 July 2026. The following paragraphs should be noted:

“88. At the relevant time my children were participating in Scouts. It was after receiving the publicly available Scouts material, and having regard to what I already knew from the earlier litigation, that I decided to communicate with Scouts NSW.

89. My communication with Scouts NSW was not made for the purpose of threatening Mr Roths, interfering with the administration of justice or influencing these proceedings. I communicated publicly available information because I was the parent of children participating in Scouts.

90. At no time prior to communicating with Scouts NSW did I threaten Mr Roths, seek any advantage in these proceedings, or request that Scouts NSW take any action capable of affecting these proceedings. My communication arose because I was the parent of children participating in Scouts and had become aware of Mr Roths’ association with Scouts NSW.

91. At no time did I threaten the second defendant, either directly or indirectly.

92. At no time did I threaten Scouts NSW or seek to compel Scouts NSW to take any action against the second defendant.

93. I did not communicate with Scouts NSW for the purpose of preventing the second defendant from commencing, continuing or participating in these proceedings, nor for the purpose of influencing the manner in which he conducted this litigation.

94. I deny that my communication with Scouts NSW was intended to interfere with the administration of justice or to place improper pressure upon the second defendant in relation to these proceedings.

95. At all times my conduct has been directed towards the protection and enforcement of my legal and commercial rights arising from the Deed dated 9 April 2018, the registered mortgage and the judgments subsequently obtained in my favour.

96. I have never sought to prevent the second defendant from pursuing these proceedings or to influence his decision whether to continue them on behalf of the plaintiff.

97. On the contrary, as set out earlier in this affidavit, following the principal judgment and the dismissal of the appeal I repeatedly delayed enforcement of my rights, afforded opportunities for the mortgage to be redeemed and attempted to resolve matters commercially before ultimately proceeding with enforcement.

98. Any communication made by me was made in the context of protecting or enforcing my legal rights or communicating publicly available information. It was not made for the purpose of interfering with the administration of justice or improperly influencing the conduct of this litigation.”

17. Mr Sergienko was briefly cross-examined in the following terms:

“Q. Mr Sergienko, can you hear me?

A. Yes, I can hear you.

Q. You referred to Mr Thomas Wallace in your affidavit. Is he someone you know?

A. Cross-examination right now?

Q. Yes?

A. Yeah, Thomas.

Q. Did you at any time in around 2022, 2023 enter into any agreement with Mr Wallace assigning your rights under the deed that is the subject of these proceedings to him?

A. There is an affidavit in these proceedings explaining that, but yes.

Q. So he is someone who, at least at one point, had an interest in the subject matter of these proceedings. Would you agree?

A. I’m not - I’m not - I’m not switched on the legal jargon a lot but - I’m not sure, to tell you the truth. So if I had to - if I had to push it I would say no.

Q. Have you got your affidavit of 1 July 2026 in front of you?

A. I don’t. If you give me a minute, I’ll bring it up.

Q. I’m sorry. Are you bringing it up, did you say?

A. Yeah, yeah, give me - give me 30 seconds. I have it, yes.

DOCUMENT SHOWN TO WITNESS

Q. Can I take you to paragraph 88 of that affidavit?

A. Yes.

Q. Do you see in the first sentence in paragraph 88 you refer to your children participating in Scouts?

A. Correct.

Q. Again in 89 in the last sentence you say that you communicated certain information to Scouts ‘because I was the parent of children participating in Scouts’. Do you see that?

A. Correct.

Q. In paragraph 90 again, last sentence, ‘My communication arose because I was parent of the children participating in Scouts’. Do you see that?

A. Correct.

Q. You seem to be at pains in these paragraphs to portray or explain that the reason you contemplated [sic, contacted] Scouts was out of some concern as a parent of children in Scouts. Is that right?

A. That’s exactly right, my friend.

Q. That’s what motivated you to contact Scouts, was it, you say?

A. It motivate me as a citizen - it motivated me as a concerned citizen to make sure - so should I answer the question or should you talk?

Q. I'm sorry. I interrupted you. Please finish?

A. Yeah, so as a concerned citizen, I think I should bring it to - to any organisation if a criminal is participating in it. Yes.

Q. But you don’t mention in these paragraphs that your motivation was as a concerned citizen. You seem to emphasise that you did so and you were motivated to do so as a parent of children in Scouts, don’t you?

A. I'm sorry, my - my friend. English is my second language, right. I'm trying - I'm trying hard to deal with nine years of litigation, right, and the - yeah, as a concerned citizen and as a parent of children participating in Scouts, I agree, so - I add one thing, a criminal shouldn’t deal with children. I agree.

Q. When you agree that you called Scouts in around October 2025--

A. Yes.

Q. --you didn’t mention to Scouts that you were calling as a concerned parent, did you?

A. I did not. No, I did not.

Q. And I suggest to you that that’s not the reason you called?

A. You are wrong.

ALTAN: No further questions, your Honour.”

18. It will be apparent from the terms of Mr Sergienko’s affidavit quoted above that he denies the conduct upon which Mr Roths relies or, in the case of the Scouts allegation, provides an explanation for his motivation. Mr Sergienko has denied that he threatened Mr Roths, either directly or indirectly. It is also clear that Mr Sergienko has opposed the relief sought by Mr Roths in this application upon the basis that Mr Roths has failed to prove that he intended to interfere with the administration of justice or to place improper pressure upon Mr Roths in relation to the current proceedings. Moreover, Mr Sergienko’s evidence is that he never sought to prevent Mr Roths from pursuing these proceedings or to influence his decision about whether to continue them on behalf of the plaintiff.

19. It should be noted that Mr Roths also relies upon the dissemination of packages sent anonymously to various recipients. Mr Sergienko did not in terms deny that he was responsible for doing so. Correspondingly, however, it was never put to Mr Sergienko that he was the person who arranged for these anonymous deliveries to be made.

20. It seems to me, in circumstances where Mr Sergienko’s actions and motivations are at the very heart of the present application, that it would be inappropriate to make findings that were contrary to his sworn evidence in circumstances where his assertions or denials were not relevantly put to him in cross-examination. The same criticism cannot be levelled at Mr Sergienko for failing to cross-examine and thereby challenge Mr Roths for the simple and obvious reason that his principal response to the application is that the evidence does not establish any basis for a grant of the orders that he seeks and so made the decision to rely upon the identified inadequacies of Mr Roths’ evidence taken at face value.

21. This is no mere forensic exercise relying on Brown**e v Dunn principles. Mr Sergienko has consistently emphasised the need for Mr Roths to establish a sufficient evidentiary foundation for the relief that he seeks as well as the closely related issues of proof of a serious question to be tried and the identification of a present and identifiable risk requiring interlocutory intervention. Quite apart from the question of whether or not it would be fair to reach a conclusion at odds with Mr Sergienko’s denials that were not challenged, I consider that Mr Roths’ evidence does not support a finding on the balance of probabilities that his version should be preferred. I am not satisfied that Mr Roths has proved his case to the requisite standard.

22. In addition, however, I am not satisfied that the conduct either alleged by Mr Roths to have been performed directly or indirectly by Mr Sergienko, or otherwise to have been admitted by him, amounted to or qualifies as conduct having a real tendency to deter or influence Mr Roths in relation to these proceedings. The dissemination of anonymous packages of the type described by Mr Roths would not in my opinion qualify as having the deterrent tendency alleged or otherwise amount to duress or the exertion of some similar improper influence. I accept that Mr Roths’ subjective perceptions or a hypersensitive or overly precious reaction to the material he complains of would not per se disentitle him to the relief that he seeks.

23. I would in contrast accept that Mr Roths’ evidence of being threatened with death would hypothetically qualify as such. The evidence about that is Mr Roths’ allegation that in January 2019, he was confronted by a masked man who said to him,

“You have fucked Sergei around long enough. You are not going to take any further steps in his legal case. You just fucking disappear and you better make sure Sergei will win this property. If I have to come back another time I am going to put a fucking bullet in your head and finish you this way.”

24. However, a number of things may be said about that allegation. First, Mr Roths did not complain about or report this incident to the police, a matter of some significance in the circumstances. Secondly, Mr Sergienko was not cross-examined about this incident or whether he was responsible for organising any such threat to be made. Clearly enough, any conclusion that this conduct had a tendency to interfere with the administration of justice is of no relevance for present purposes unless it can be attributed to Mr Sergienko, a finding that is not established by the evidence.

25. In a similar vein to the omission to cross-examine Mr Sergienko, Derek Ziman, solicitor, swore an affidavit on 18 June 2026 contradicting some evidence given by Mr Roths concerning the circumstances in which a deed of settlement was executed. If the evidence about those circumstances were thought by Mr Roths to be relevant to the disposition of this application, Mr Ziman ought properly to have been challenged about it. He was not.

26. I am not satisfied that Mr Roths’ complaints identify conduct or publications, even assuming the evidence to have sourced them to Mr Sergienko, that rise to or achieve the required standard of vehemence, unrestrained language and evocative imagery, or that they hold up Mr Roths to public obloquy and derision. There is no evidence that the language of which Mr Roths complains in the publication can be described as intemperate, or as amounting to execration or public ridicule. Mr Roths and Mr Sergienko have a catalogued history of mutual conflict and disagreement. It is in that context that the reasonable assessment of Mr Roths’ concerns must be balanced with his subjective response. In my opinion, that balance does not favour a grant of the injunction that he seeks.

27. Finally I note that the significant thrust of Mr Roths’ concerns is that Mr Sergienko has disseminated material that emphasises Mr Roths’ conviction for a fraud-related offence for which he served a term of imprisonment. The fact of his conviction and sentence is not challenged. It is therefore difficult in the circumstances to accept that Mr Roths would be entitled to an injunction restraining publication of such material as defamatory, having regard to the well-known constraints applying to the grant of such relief.

Orders

28. There is no satisfactory evidentiary support for the orders sought by Mr Roths. It follows in my view that the notice of motion dated 26 March 2026 should be dismissed with costs.