The plaintiffs and defendant are all self-represented. The plaintiffs were successful in defamation proceedings against the defendant (King & Anor v Greenwood [2022] NSWDC 61) and now seek orders for the defendant to be referred to the Prothonotary of the Supreme Court of New South Wales for determination of contempt of court. That application is listed for hearing on 16 June 2022.
The defendant brings an application for pro bono legal assistance. If I make such an order, the hearing date will need to be vacated.
The circumstances of this application raise important issues of case management for the courts as there appears to be a rising number of contempt applications arising out of defamation claims being brought against ordinary members of the community (as opposed to the mass media), largely as a result of social media use.
[2]
Background
The plaintiffs, who are the publishers of a local newspaper in the Southern Highlands region, brought proceedings for defamation for two publications hosted by the defendant in February 2021 on his Facebook page. The contents of those publications are described by Abadee DCJ in his judgment of 15 March 2022 (at [2], [3], [12] and [13]). An interlocutory injunction restraining the defendant from publishing the first matter complained of was granted on 3 June 2021 and it is asserted breaches of this order which have resulted in the plaintiffs' current application.
Abadee DCJ held that, in relation to those imputations capable of being conveyed, the sole defence pleaded by the defendant, a defence of triviality (s 33 of the Defamation Act 2005 (NSW)), failed. Damages of $31,294.03 inclusive of interest were awarded to the first plaintiff and $15,647.01 inclusive of interest to the second plaintiff. The issue of costs was reserved to be determined after the hearing of a motion brought by the plaintiffs for the defendant to be referred to the Supreme Court for consideration of contempt charges arising from his breach of the interlocutory injunction granted on 3 June 2021.
Abadee DCJ referred the contempt application back to the Defamation List for determination and crafted a proposed undertaking which was designed to avoid the necessity for a permanent injunction if there was any continuing dispute, an order which was self-executing in nature (at [189]).
The plaintiffs, on 12 May 2022, filed a notice of motion seeking declarations and charges for content or alternatively for the referral of the defendant to the Prothonotary of the Supreme Court of New South Wales. Those orders were as follows:
1. A declaration that the defendant was in contempt of Court for breach of the orders of the Court made in these proceedings on 3 June 2021, pursuant to the submissions made within the affidavit of Cristian Alexander King, sworn on 12 May 2022.
2. A declaration that the defendant has committed the offence provided for in s.199 of the District Court Act 1973 (NSW) by contravening the interlocutory injunction made by the court in these proceedings on 3 June 2021, pursuant to the submissions made within the affidavit of Cristian Alexander King, sworn on 12 May 2022.
3. That the defendant be charged for contempt, pursuant to s.199(2) of the District Court Act 1973 (NSW), and that the defendant is punished for the contempt by way of fine or imprisonment, to be determined by the Court, in accordance with s.199(7) of the District Court Act 1973 (NSW).
4. Alternate to order 3:
a. To refer the charge of contempt to the Prothonotary of the Supreme Court of NSW to commence proceedings against the defendant for determination and punishment of the contempt, pursuant to s.203(1) of the District Court Act 1973 (NSW) and reg.55.11(3)(a) of the Supreme Court Rules 1970 (NSW).
The publications asserted to be in breach are as follows:
1. An article published on Facebook at 7:17 AM on 26 October 2021 which commences "I am being sued for defamation by the publishers of the Southern Highlands Express because I expose their long-term dodgy business practices" and continues in much the same vein.
2. An email with the subject line "King hit by crooks" sent to the editor of the Southern Highlands Express Newspaper, Mark Wallace, who is an employee of the plaintiffs.
On 31 March 2022 I made the following orders:
"Orders:
(1) The plaintiffs are to file their application for Contempt in relation to the Interlocutory Injunction Orders made on 3 June 2021 with the Court and serve the defendant, by 12 May 2022.
(2) The defendant may file a reply to the application for Contempt with the Court and serve the plaintiffs no later than 9 June 2022.
(3) The application for Contempt be listed for Directions and Hearing at the Defamation List, on 16 June 2022 at 9am with an estimate of 1 Hour."
On 24 May 2022 the defendant wrote to the court making a formal request for pro bono representation and advice in the contempt application. He asked the court to "please start the process in which the court sources pro bono support for my defence from the many legal firms in Sydney" on the basis that the plaintiffs were "using the court system to try and shut down exposure of the criminal history" and that the contempt charges were "an illegal manoeuvre". The defendant also foreshadowed an application for "judicial review into the defamation action", namely the judgment against him which, he claimed, "showed unlawful bias".
The defendant enlarged upon these issues in his submissions to me this morning. This included a claim that he was "bankrupt". Mr King responded that the defendant was not in fact bankrupt, and the defendant acknowledged this to be "technically" correct, in that he was without funds, but not bankrupt.
No prior application has been made by either party for legal assistance in these proceedings. Mr King points out, however, that the defendant received a pro bono referral in other defamation proceedings.
It is clear, from the dialogue between Mr King and Mr Greenwood in court this morning, that there is a combative relationship between them and that their personal animosity may affect their continued self-representation. I see this as being a case management difficulty of some substance and it is one of the reasons why I propose to make an order not only for the defendant to be referred to the registrar for assistance from the Pro Bono panel but also the plaintiffs.
[3]
Why is pro bono assistance necessary?
There are significant reasons in the present application why legal assistance would be of benefit to not only one but both of the parties, namely the penal nature of contempt, the complexities of the proceedings and the interests of administration of justice generally.
As to the first of these, judges hearing contempt applications in the Supreme Court of NSW have made orders pursuant to Part 7 rule 34 referring self-represented defendants to the Registrar for referral for legal assistance: see, for example, Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 22) [2016] NSWSC 1013 at [3]; Kelly v Mosman Municipal Council [2010] NSWCA 370 at [17] - [20]. (Prior to the setting up of pro bono panels, courts sometimes made direct requests to the profession, as occurred in Environmental Protection Authority v Panther Resources Pty Ltd and Another [2003] NSWLEC 216 at [1]; problems with the availability of assistance from the Legal Aid Commission for contempt proceedings were adverted to by Talbot J at [2]). If judges in the Supreme Court hearing contempt applications consider it appropriate to make such orders, it seems appropriate that a judge in this court hearing an application for referral to the Prothonotary should also consider doing so.
As to the second of these, where a complex application comes before the court, it is not unknown for both parties to be represented by pro bono lawyers, as occurred in Newman v Whittington [2022] NSWSC 249 (at [3]), where a novel issue in defamation law arose. It could well be, in those circumstances, that the appropriate step is to refer both parties.
This brings me to the question of the interests of the administration of justice. There has been a steep rise in the number of non-media contempt applications arising out of defamation actions, as is noted in the statistics I set out in 'Identifying defamation law reform issues: 'A "snapshot" view of defamation judgment data' (2019) 23 Media & Arts Law Review 4. According to my research, 9 of the 95 judgments on defamation law over a four-month period in 2018 related to contempt of court against private individuals. Since that time, I have read a number of judgments from courts around Australia dealing with claims of contempt which are brought by members of the community against each other for publications on websites and social media.
Part of the problem is the increasing ease of communication due to social media publication, the regulation of which has been the subject of much public discussion and some controversy. Whatever the reason, the potential for members of the community to be caught up in complex issues involving the criminalisation of speech is an issue about which the courts must be alert in terms of case management.
The only basis for opposition from Mr King arises from the defendant having been provided with a referral in unrelated defamation proceedings. While UCPR r 7.36(2A) does refer to "a previous referral" without restricting this to the same litigation (a point raised in Mears v Sydney Anglican Schools Corp [2016] NSWCA 39 but not answered), I consider that there would nevertheless be special reasons why such a referral should be made, namely the factors set out above.
[4]
Pro bono legal assistance schemes
Sources of pro bono legal assistance that may be available to unrepresented litigants would include:
1. The Pro Bono panel set up under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") rr 7.34 and 7.35, which is in use in this court.
2. The Pro Bono system maintained by the NSW Bar Association. I note that this was the source of assistance to both parties in Newman v Whittington, but that request was made by a judge of the Supreme Court of NSW, and I cannot assume that the same very high order of assistance would be provided in these proceedings.
3. Assistance from the Legal Aid Commission for criminal proceedings (I note, however, Talbot J's concerns in Environmental Protection Authority v Panther Resources Pty Ltd and Another as to whether contempt of court falls into this category).
In practical terms, the only assistance that this court can offer is a referral to the Pro Bono scheme maintained in this court.
[5]
The Pro Bono scheme
The registrar of the District Court maintains a list of solicitors and barristers who are prepared to provide assistance. The circumstances in which the court may refer a person to this Panel are set out in UCPR r 7.36 which provides:
7.36 Referral to a barrister or solicitor
(1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.
(2) For the purposes of subrule (1), the court may take into account--
(a) the means of the litigant, and
(b) the capacity of the litigant to obtain legal assistance outside the scheme, and
(c) the nature and complexity of the proceedings, and
(d) any other matter that the court considers appropriate.
(2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.
(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.
(4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.
(4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant's referral, the registrar may make an order terminating the litigant's referral.
(5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.
(6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.
I am concerned, however, that the referral of the defendant only may lead to an imbalance in terms of representation in the hearing which will take place. I consider the approach taken by Sacker J in Newman v Whittington has much to recommend it.
Accordingly, I propose to refer both the plaintiffs and the defendant to the Registrar so that each of them can avail themselves of the necessary assistance. That assistance will, however, be limited to the conduct of proceedings in this court in relation to the contempt referral application, and does not apply to proceedings brought outside this court (such as, for example, the defendant's proposed application for judicial review of Abadee DCJ's judgment).
Regrettably, that means that the hearing date must be vacated, but that is a preferable course to the alternative of forcing the defendant on when he has sought assistance.
I have stood the proceedings over to 4 August 2022 for further directions and allocation of a fresh hearing date. If, by that time, the registrar has been unable to obtain legal assistance for either or both of the parties, the hearing will go ahead without legal assistance.
I shall reserve any question of costs, although the range of costs available to litigants in person is of course very limited.
[6]
Order:
1. Pursuant to UCPR r 7.36 each of the plaintiffs and the defendant are referred to the registrar for referral to the Pro Bono panel for legal assistance for the conduct of the plaintiffs' application that the defendant be referred to the Prothonotary for contempt.
2. Proceedings stood over to 4 August 2022 for further directions and allocation of a hearing date.
3. Costs reserved.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 June 2022