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Category: Procedural rulings

Parties: Point Plumbing Pty Ltd trading as Fergusons Plumbing Group NSW (Plaintiff)
Starr Kopa (First Defendant)
Brooklyn Rodger (Second Defendant)

Representation: Counsel:
M Klooster (Plaintiff)
Solicitors:
New South Lawyers (Plaintiff)
Litigants in person (First and Second Defendants) (No appearance)

File Number(s): 2024/00471806

Publication restriction: Nil

JUDGMENT

Introduction

1. By Notice of Motion filed on 27 August 2025 (the Motion), the plaintiff, Point Plumbing Pty Ltd trading as Fergusons Plumbing Group NSW, seeks a declaration that the first defendant, Mr Starr Kopa, as contemnor, is guilty of civil contempt of court (the contempt application), and as well as relief in the form of a permanent injunction (the injunction).

2. The form of relief sought in the Motion in relation to the contempt application and the injunction is in the following terms:

“1 Pursuant to Part 55 of the Supreme Court Rules 1970 (NSW) and/or Part 40 of the Uniform Civil Procedure Rules 2005 (NSW), the First Defendant, as contemnor, [is] guilty of civil contempt of Court for failing to file and serve an affidavit disclosing all publications made by him on social media or other platforms regarding the Plaintiff and/or the Plaintiff’s plumbing business known as Fergusons Plumbing, pursuant to:

(a) Order 2 made on 20 December 2024;

(b) Order 1 made on 13 February 2025;

(c) Order 1 made on 6 March 2025;

(d) Order 1 made on 27 March 2025; and/or

(e) Orders 2 and 3 made on 24 July 2025.

…

5 An order that the First Defendant and Second Defendant by themselves, employees, servants or agents, [is] permanently restrained from (directly or indirectly) publishing anything disparaging in relation to the Plaintiff on social media or other platforms until further Order of the Court.”

3. In relation to the contempt application, it will be noted that at this stage the plaintiff is now only seeking a declaration that the first defendant is guilty of contempt. The plaintiff sought leave to make further submissions with respect to penalty.

4. For completion, I observe that prayer 6 of the Motion was for “[a]n order that the proceedings are dismissed with the Defendants to pay Plaintiff’s costs”. That appears to have been pressed in the context where prayers 3 and 4 of the Motion, which mirror prayers 1 and 2 of the “final relief claimed” in the Summons, sought final relief against the defendants. Prayers 3 and 4 of the Motion were not finally pressed (TR P6 L1-4).

5. A Statement of Charge setting out the contempt charges against the first defendant was filed on 28 October 2025 (the Statement of Charge).

6. The Motion was heard on 19 February 2026. Mr M Klooster of counsel appeared for the plaintiff. There was no appearance of or for the first defendant (or, for that matter, the second defendant).

7. In the course of preparing this judgment, I became concerned that there was potential non-compliance with procedural requirements for contempt motions contained in the Supreme Court Rules 1970 (NSW) (Supreme Court Rules), particularly pt 55 rr 7 and 9.

8. For the reasons that follow, I am satisfied that procedural requirements in relation to contempt contained in the Supreme Court Rules have not been met by the plaintiff and that I ought not to dispense with them. As such, I am satisfied that the contempt application should be dismissed. I do not consider it appropriate, in the circumstances, to consider in the alternative whether the contempt application would have been made out on the facts.

9. I also am not satisfied that the injunction sought by the plaintiff should be granted.

10. The Motion should therefore be dismissed. It appears to me then that the plaintiff’s claim for final relief is still live, particularly as I have determined that a permanent injunction should not be granted (which the plaintiff had submitted “would bring these proceedings to an end”). Accordingly, I will not make the order seeking dismissal of proceedings and I will order the proceedings return to the Registrar in Equity for further case management.

Hearing details and hearing being ex parte

11. The Motion, as filed, included two defendants as parties, being the first defendant, and the second defendant, Brooklyn Rodger. The plaintiff put on evidence that established that both the first defendant and second defendant had been given notice of the proceedings.

12. There being no apparent appearance of or for either the first or second defendant on the day of the hearing, I caused my tipstaff to call the matter outside of the courtroom before the commencement of the hearing (TR P1 L20-29). There was no response to that call. Accordingly, the hearing proceeded in the absence of both the first and second defendant.

13. I also observe that neither defendant has filed any evidence nor other documentation in respect of the proceedings, this being the fifteenth appearance of this matter before the Court.

14. I considered that the evidence suggested (see below) that the defendants were on notice of the time, date and place of the hearing.

15. At the time of the hearing, I was satisfied that the terms of the responses of the first defendant to the various emails sent on behalf of the plaintiff were such that the first defendant (and the second defendant) had made an intentional decision not to attend, in which case any postponement of the hearing to enable attendance would be futile. Consequently, I was satisfied that it was appropriate to proceed with the hearing on an ex parte basis, at least in relation to the first defendant.

16. In the course of the hearing, and in the context of traversing the evidence available in relation to both the first and second defendants, counsel for the plaintiff indicated that the plaintiff did not press the contempt application as against the second defendant (as explored at [124]-[127]). In the circumstances, I gave the plaintiff the opportunity to put on supplementary submissions, to be provided by email to my chambers on or by 27 February 2026, making this clarification.

17. The plaintiff complied with that order and provided supplementary submissions indicating the precise evidence that was relied upon to make out each of the facts for which a finding was sought.

18. References in this decision to the written submissions of the plaintiff will be made principally to the plaintiff’s supplementary written submissions (PWS). In those submissions, the plaintiff clarified that only the prayers of the Motion relating to findings of contempt by the first defendant were pressed (PWS [3]-[4]). I will reference only in passing the plaintiff’s original written submissions, being those which pressed the Court to find both the first and second defendant guilty of contempt.

19. In the course of the hearing, the plaintiff also clarified that only the two prayers set out at [2] above, being a declaration the first defendant was guilty of contempt and the injunction, were ultimately pressed (TR P5 L41-P6 L15).

20. Following correspondence with my Associate, the plaintiff also provided further supplementary written submissions on procedural defaults on 4 May 2026 (PWS Procedure). I discuss what prompted these submissions at [132]-[139].

Affidavits and other evidence

21. The Motion was supported by the following documents that were tendered and read by the plaintiff:

22. an affidavit of Charbel Alha (and Exhibit CA-1 to that affidavit) sworn on 18 December 2024, Mr Alha being a director of the plaintiff;

23. an affidavit of service of Douglas O’Connor sworn 19 December 2024;

24. a affidavit of Rory Patrick O’Connor (and Exhibit RPO-1 to that affidavit) sworn 27 August 2025, Mr O’Connor being a solicitor in the employ of the plaintiff’s solicitor;

25. a copy of the email to the first and second defendants sent on 27 August 2025 attaching the Motion and supporting affidavit of Mr O’Connor;

26. a further affidavit of service of Douglas O’Connor sworn 5 September 2025;

27. the Statement of Charge concerning the first defendant;

28. an affidavit of Caroline Nicholas sworn 27 October 2025, Ms Nicholas being a solicitor in the employ of the plaintiff’s solicitor;

29. a copy of the email to the first defendant serving the sealed affidavit of Caroline Nicholas and Statement of Charge dated 28 October 2025;

30. a further affidavit of service of Douglas O’Connor sworn 17 November 2025;

31. an affidavit of Caroline Nicholas sworn 10 February 2026; and

32. copies of further email correspondence with the first defendant.

33. Affidavits going to service of the second defendant were also read but were ultimately not relied on as in the event the plaintiff did not press for any declaration in relation to the second defendant.

The Law

Contempt – Source of Authority

23. I should first note the source of the Court’s jurisdiction to punish the first defendant in contempt. The Court’s power to punish for contempt derives from the inherent power of this Court: Registrar o**f the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 319 (Kirby P).

24. Part 40 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) is titled “Additional measures for enforcing judgments and orders of the Supreme Court and District Court”. Rule 40.6 of the UCPR relevantly provides:

40.6 Doing or abstaining from doing an act

(cf SCR Part 42, rule 6)

(1) This rule applies in the following circumstances—

(a) if—

(i) a judgment requires a person to do an act within a time specified in the judgment, and

(ii) the person fails to do the act within that time or, if that time is extended or abridged, within that time as extended or abridged,

…

(2) In circumstances to which this rule applies, a judgment may be enforced by one or more of the following means—

(a) committal of the person bound by the judgment,

(b) sequestration of the property of the person bound by the judgment,

…

25. Part 55 of the Supreme Court Rules also provides rules regarding contempt, particularly its procedural requirements and penalties (discussed below).

26. For completeness, I observe that s 131 of the Civil Procedure Act 2005 (NSW) (CPA) provides:

131 Committal for contempt

Nothing in this Act or the uniform rules limits or otherwise affects the power of the court to attach or commit a person for contempt.

27. In Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106; [1986] HCA 46, Gibbs CJ, Mason, Wilson and Deane JJ observed the following principled underpinning for the Court’s power to punish contempt:

“Punishment for contempt serves two functions:

(a) enforcement of the process and orders of the Court, disobedience to which has been described as ‘civil contempt’; and

(b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in Court while it is sitting or publishing comments on a pending case, which have both been described as ‘criminal contempt’ …

The principal theoretical basis of the distinction is that disobedience to the process and orders of the Court in civil proceedings is said to be a civil wrong, a matter between party and party, enforcement being for the private benefit or interest of the party seeking enforcement … A secondary basis for the distinction is that the main purpose of sanctions for disobedience in civil proceedings is coercive rather than punitive.”

Contempt – Procedure

28. Part 55 of the Supreme Court Rules provides the following procedural requirements concerning contempt charges where the contempt has not been in the face or hearing of the Court:

6 Procedure generally

(1) Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders.

(2) Where contempt is committed, but not in connection with proceedings in the Court, proceedings for punishment of the contempt must be commenced by summons, but, if an application for punishment of the contempt is made by motion on notice in any proceedings, the application may be heard and disposed of in the latter proceedings, unless the Court otherwise orders.

7 Statement of charge

A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons.

8 Evidence

(1) Subject to subrule (2), the evidence in support of the charge shall be by affidavit.

(2) The Court may, on terms, permit evidence in support of the charge to be given otherwise than by affidavit.

9 Service

The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.

Rule 7 of pt 55 prevails of the provisions of the UCPR, to the extent of any inconsistency between them (UCPR r 1.7 and Schedule 2, read with CPA s 11).

Statement of Charge

29. In McDonnell v Novello [2006] NSWSC 1186 (McDonnell v Novello), Barrett J provided the following guidance at [13] on how pt 55 r 7 of the Supreme Court Rules should be interpreted:

“The ‘subscribed to’ possibility contemplated by Part 55 rule 7 refers, clearly enough, to a case where the statement of charge – that is, a statement identifying with precision the contempt allegation made – is contained in the same document or paper as the summons or notice of motion. The ‘filed with’ possibility recognises that the initiating summons or notice of motion must be filed and contemplates that the statement of charge will be in a separate document that accompanies it. In the present case, the statement of charge was not contained in the same document or paper as the notice of motion. Nor was the statement of charge included in a single filing encompassing two documents, one being the notice of motion and the other the statement of charge. There was a separate and distinct filing of the statement of charge some six days after the filing of the notice of motion.”

30. Ultimately, at [32], Barrett J considered a failure to comply with pt 55 r 7, like four other different procedural defaults in the matter before his Honour, was a matter “of substance”.

Personal Service

31. The Supreme Court Rules do not contain any rules providing for how personal service may be effected. However, s 11 of the CPA provides that “[t]he uniform rules prevail over any provision of any local rules unless the uniform rules expressly provide that the provision of the local rules is to prevail.” Furthermore, r 1.5(1) of the UCPR provides that, subject to r 1.5(2) (which is not relevant in this case) “these rules apply to each court referred to in Column 1 of Schedule 1 in relation to civil proceedings of a kind referred to in Column 2 of that Schedule”. The effect of Columns 1 and 2 of Schedule 1 is that the UCPR applies to “all civil proceedings” of the Supreme Court. By reason of the combined operation of these provisions, my view is that the rules for service contained in the UCPR apply to these contempt proceedings. Even if this view is incorrect, I was not taken to what the general law might be in relation to personal service. I note that the UCPR probably reflects, in any event, the general law concept of personal service (McDonnell v Novello at [15]), and does not vary in substance from the now repealed Supreme Court Rules that previously guided personal service.

32. The UCPR relevantly provides the following with respect to documents which must be served personally:

10.21 How personal service effected generally

(1) Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document.

(2) If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person.

(3) Service in accordance with subrule (2) is taken to constitute personal service.

10.26 Personal service on person who “keeps house”

(1) If a person keeps house (that is, remains in premises to which a person attempting service cannot lawfully or practicably obtain access), the person attempting service may serve the document on the person keeping house—

(a) by doing one of the following—

(i) placing the document in the mail-box for the premises,

(ii) affixing the document to an outer door of the premises,

(iii) if the person attempting service cannot lawfully or practicably obtain access to any such mail-box or door, affixing the document to some part of the premises, or to some fence or wall surrounding the premises, as near as practicable to the principal door or entrance to the premises, and

(b) within 24 hours after doing so, by posting a notice to the premises, addressed to the person keeping house, informing the person of the fact that the document has been so placed or affixed.

(2) Service in accordance with subrule (1) is taken to constitute personal service.

33. Barrett J in The Site Foreman Pty Limited v Brand [2011] NSWSC 451 (The Site Foreman) at [8] made the following statement with respect to what constitutes personal service:

“It is clear that the action of the process server in leaving copies of the originating process and the supporting affidavit in the letterbox at the Dormer Close address on 8 March 2011 did not constitute personal service under the Uniform Civil Procedure Rules.”

34. In Coward v Stapleton (1953) 90 CLR 573 at 579-580; [1953] HCA 48 (Coward v Stapleton), the High Court (Williams ACJ, Kitto and Taylor JJ) articulated (emphasis added, citations omitted):

“…it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him … The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations … The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.

Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon.”

35. Similarly, in McDonnell v Novello at [35], Barrett J made the following observation about the importance of due process in contempt applications:

“An allegation of contempt of court is serious and not to be made lightly. It may lead to loss of liberty. It behoves anyone pursuing such an allegation to do so with precise attention to all matters going to due process.”

36. Courts have repeatedly emphasised the need for strict compliance with procedural requirements for contempt of court (see, for instance, R v Poplar Borough Council (No 2) [1922] 1 KB 95, 115; Gordon v Gordon [1946] P 99, 103; Drummoyne Municipal Council v Lewis [1974] 1 NSWLR 655, 658).

37. In Ronowska v Kus (No 2) [2012] NSWSC 817 (Ronowska v Kus), Pembroke J noted at [30] that the seriousness of contempt attaches to the requirements in pt 55 of the Supreme Court Rules, including personal service. His Honour said (in the context of also having made reference to a personal service requirement found in UCPR r 40.7):

“These requirements for service, including the unambiguous specification of the contempt in a statement of charge, represent the usual means by which the law seeks to ensure that elementary fairness is achieved.”

38. Notwithstanding this, the requirement for personal service is not indispensable. In Doyle v Commonwealth (1985) 156 CLR 510; [1985] HCA 46 (Doyle), the High Court (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ) said (emphasis added, footnotes omitted):

“However, personal service is not indispensable; substituted service may be ordered in a proper case. The effect of the cases was stated in Oswald on Contempt 3rd ed (1910), p 205, in a passage cited in Taylor v Whelan, as follows:

‘But when all reasonable efforts to effect personal service of a notice of motion to commit have been made and failed, the court can and ought to grant an order for substituted service [of the notice of motion].’

There would have been no difficulty in the present case in making an order for substituted service which would have been likely to ensure that the motion was brought to the notice of the persons to be served; e.g., by requiring a copy of the notice of motion to be affixed to or left at the building. However, no efforts were made to effect personal service of a notice of motion, and no order for substituted service was sought or made.”

39. In Ronowska v Kus, Pembroke J continued at [31]:

“The evident purpose of the requirement for personal service in Pt 55 of the Supreme Court Rules is to ensure that, before there is a finding that a person is guilty of contempt, the alleged contemnor is clearly informed of the charge against him and is given ‘a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment’: Coward v Stapleton [1953] HCA 48 ; (1953) 90 CLR 573 at 579–80 (Williams ACJ, Kitto and Taylor JJ). If that purpose is achieved by means other than personal service, there can be no unfairness and no objection in principle to proceeding with the hearing of the application against him.”

40. Where a requirement for personal service has not been met, the UCPR makes the following provision:

10.14 Substituted and informal service generally

(1) If a document that is required or permitted to be served on a person in connection with any proceedings—

(a) cannot practicably be served on the person, or

(b) cannot practicably be served on the person in the manner provided by law,

the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.

(2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.

(3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.

(3A) An application for an order under this rule must be supported by an affidavit by the applicant that includes—

(a) a statement as to the applicant’s knowledge of the whereabouts of the person to be served, and

(b) a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail).

(4) Service in accordance with this rule is taken to constitute personal service.

41. Section 14 of the CPA more broadly allows for a court to dispense with any requirement of rules of court if it is satisfied that it is appropriate to do so in the circumstances of the case.

Contempt – Liability

42. In relation to what a plaintiff must establish to make good an allegation of civil contempt, the principles are well understood and were pithily set out in GEMI 169 Pty Ltd v Suria Global (L) Pty Ltd (No 6) [2024] NSWSC 1007 (GEMI) by Stevenson J at [20]-[23]:

“Principles

[20] The Lenders allege a ‘civil contempt’.

[21] The Lenders must establish that:

(a) an order was made by a court;

(b) the terms of the order were clear, unambiguous and capable of compliance;

(c) the alleged contemnor had knowledge of the terms of the order; and

(d) the alleged contemnor wilfully breached the terms of the order [For example, see Huang v Liao [2022] NSWSC 347 at [31] (Black J)].

[22] Further:

(a) it is sufficient to prove that an act or omission was deliberate, in the sense of not being casual, accidental, or unintentional, but not necessary to prove that the alleged contemnor actually intended to disobey the Court’s order; [Huang v Liao [2022] NSWSC 347 at [32]], and

(b) it is not necessary to prove that the contemnor understood the terms of the order, because the recipient of an order has a positive obligation to try and understand and obey it, and wilful blindness is no defence [Huang v Liao [2022] NSWSC 347 at [33]-[40]].

[23] Notwithstanding the fact that the Lenders allege a civil rather than a criminal contempt, they must establish these matters beyond reasonable doubt [Footnote 6: Novelly v Tamqia Pty Ltd [2024] NSWCA 167 at [25] (Gleeson JA, Meagher JA agreeing), [69] (Kirk JA); cf Eshow v Zaia [2020] NSWCA 10 at [24]-[25] (White JA); cf NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741 at [2], [196] (Bell P, as the Chief Justice then was)].”

43. Accordingly, and as submitted by the plaintiff, it is for the plaintiff in these proceedings to establish four elements (PWS [19]):

“First, an Order was made by a court;

Second, the terms of the Order were clear, unambiguous and capable of compliance;

Third, the alleged contemnor had knowledge of the terms of the Order; and

Fourth, the alleged contemnor wilfully breached the terms of the Order.”

44. Notwithstanding that a finding of civil contempt is sought, the plaintiff accepts the matters required to be proved by it must be established beyond reasonable doubt (PWS [21]). I note there is an open question raised by Bell P in NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741 at [194]-[196] whether, in proceedings to which the Evidence Act 1995 (NSW) applies, the applicable standard is the civil standard of proof specified in s 140, proof on the balance of probabilities, or the criminal standard of proof, being proof beyond reasonable doubt, as the overwhelming weight of authority suggests, but that this question was not found necessary to decide (see also Esho**w v Zaia [2020] NSWCA 10 at [23]; Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2025] NSWSC 655 at [24]). It is not necessary to decide this question here either.

45. Liability for failing to comply with a Court order is strict in that all that is required is service of the order and the subsequent failure of the party bound to comply with its terms: GEMI at [22]; Davies v Beyond Building Systems Pty Ltd [2009] NSWSC 1282 at [32] (Brereton J).

46. On the issue of proof, Brereton J stated in Anderson v Hassett [2007] NSWSC 1310 (Anderson v Hassett) at [8]:

“Accordingly, it is not necessary for the plaintiff to establish that any failure to comply with the order was accompanied by a specific intention to disobey the court’s order. Proof of failure to comply is sufficient.”

Contempt – Penalty

47. The usual procedure in contempt proceedings is, as a matter of fairness, to bifurcate the proceedings into a hearing on liability and, if established, a separate hearing on punishment (Blacktown City Council v Derek Hambly [2023] NSWLEC 75 at [48]; Mead v Mead (2007) 235 ALR 197; [2007] HCA 25 at [3] (Gleeson CJ)).

48. Rule 13(1) of pt 55 (Contempt) of the Supreme Court Rules provides for punishment in relation to contempt in the following terms:

13 Punishment

(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.

49. This rule does not distinguish between civil and criminal contempt.

50. In making this application, the plaintiff recognises there is a range of seriousness for contempt, and relies on what Kirby P said on this issue in Maniam (No 2) at 314-315:

“For the purposes of punishment, various classes of contempt have been identified in the cases. They include technical, wilful and contumacious contempt. For technical contempts, the Court will usually accept an apology from the contemnor. It may order that the contemnor pay the costs of the proceedings brought to uphold the authority of the courts of law …

A similar approach is sometimes taken to contempts which are more than technical and which, although wilful, are not found to have been deliberate …

The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt. This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order. In cases where such a measure of wilfulness is established, the court may proceed to punish the convicted contemnor by the imposition of a custodial sentence or a fine or both. In such a case the elements necessary to establish wilfulness, carrying as they do the potential of penal consequences, must all be proved to the criminal standard.”

Permanent injunctive relief

51. In addition to the contempt application, the plaintiff seeks an order granting permanent injunctive relief (prayer 5).

52. In Patel v Dev Constructions (NSW) Pty Ltd [2025] NSWSC 1382 (at [84]-[88]) I considered the broad legal principles to be applied when a Court considers whether to grant permanent injunctive relief, and relevantly stated:

“[84] A court of equity has a well-established jurisdiction to grant injunctions to restrain legal wrongs: Uber BV v Howarth (2019) 94 NSWLR 636; [2017] NSWSC 54 (Uber) at [194] (Slattery J). An injunction in aid of a legal right or interest is granted in this Court’s auxiliary jurisdiction in equity: Smethurst v Commissioner of Police (2020) 272 CLR 177; [2020] HCA 14 (Smethurst) at [48] (Kiefel CJ, Bell and Keane JJ).

[85] This Court may grant an injunction in its auxiliary jurisdiction, whether interlocutory or final, if the plaintiff has a legal right that the injunction will protect: Smethurst at [77] (Kiefel CJ, Bell and Keane JJ).

[86] In Uber, at [194]-[199], Slattery J set out the following four requirements that must be satisfied for the Court to grant an injunction in its auxiliary jurisdiction:

1. the plaintiff possesses a legal right;

2. that right is arguably of a proprietary nature;

3. that right is threatened or has already been infringed so as to show a threat of future infringement; and

4. damages would not be an adequate remedy.

[87] The onus rests on the plaintiff to show that an injunction is, in the circumstances an appropriate form of relief. This requires the plaintiff to persuade the court that an award of damages would not be an adequate remedy or that irreparable harm would be suffered if the injunction were refused: Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 (Graham H Roberts) at 107 (Helsham J); Blacktown City Council v Sharp (2000) 10 BPR 18,107; [2000] NSWSC 339 (Blacktown City Council) at [14] (Young J, in the context of an interlocutory injunction); Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 (Lincoln Hunt Australia) at 464 (Young J, in the context of an interlocutory injunction).

[88] In Coles Group Property Developments Limited v Stankovic [2016] NSWSC 852 (Coles Group Property), Sackar J at [54]-[60] summarises the principles relevant to a permanent injunction to restrain an act of trespass (emphasis in original):

…

[56] In Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311, the Victorian Court of Appeal stated that:

[36] According to longstanding equitable principle, the breach or invasion of a proprietary right, or a sufficient risk thereof, founded a prima facie entitlement to an injunction or specific performance. The unavailability of equitable damages prior to Lord Cairns’ Act entrenched that principle.

…

[46] While the factors potentially relevant to the exercise of the discretion cannot be exhaustively stated, Shelfer, in my opinion, correctly accorded primary importance to identifying a small injury to the plaintiff, and disproportionate hardship constituting oppression, to the defendant.

[47] In determining whether a substitution of damages for in specie relief is just, the interests of the parties are not of broadly equivalent weight. It will not suffice that the hardship entailed to the defendant by an injunction marginally outweighs the relief that the plaintiff will obtain thereby. Rather, the courts have typically required a significantly disproportionate damage to the defendant, reflected in the criterion of oppression in the Shelfer working rule.

[48] In that sense, the Shelfer working rule itself implicitly assumes that in order to justify the substitution of damages, it is ordinarily necessary that there be a relationship of significant disproportion between the relief afforded to the plaintiff’s injury and hardship to the defendant entailed by the grant of an injunction.

(emphasis added)

[57] I note that in relation to the Shelfer ‘working rule’, the Supreme Court of the United Kingdom has recently cautioned that each case is ‘likely to be fact-sensitive’ and that the so-called rule should not be used to fetter judicial discretion: Lawrence v Fen Tigers Ltd [2014] AC 822; [2014] 2 All ER 522 at [120]-[121].

[58] The significance of hardship to the defendant to the grant of injunctive relief is helpfully summarised in Spry’s The Principles of Equitable Remedies (9th ed, 2014) at 413-4:

Considerations of hardship to the parties are of critical weight where the right to an interlocutory or interim injunction is being considered, especially since, ex hypothesi, the rights of the parties have not yet been finally ascertained. But when at the final hearing the court is called on to decide whether an injunction or an award of legal or equitable damages should be ordered, it must necessarily have been determined that the defendant is in breach of the rights of the plaintiff or will be in breach if the apprehended acts take place. Accordingly considerations of hardship on the part of the defendant are ordinarily of much reduced weight. He must now be regarded either as a wrongdoer, or at least as a potential wrongdoer, rather than a person who may ultimately be shown to be acting according to his legal rights. Nonetheless the grant of an injunction is always a matter of discretion; and, in particular, the following matters are taken into account by courts with equitable jurisdiction.

…

[T]he court may in its discretion decline to grant an injunction if to do so would result in such substantial hardship to the defendant that, account being taken of any detriment that the plaintiff will suffer on his being confined to damages, disproportionate prejudice would be caused by its intervention. Here it must be remembered that the plaintiff whose rights are threatened to be breached has prima facie an equitable right to have the breach restrained and that he will be denied specific relief only in exceptional cases. …

[59] Relevantly for the purposes of the present case I also note the importance of granting injunctions in ‘clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction’: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259; Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41; 150 FCR 110 at [40]; Ross v Lane Cove Council [2014] NSWCA 50 at [29].

[60] Injunctive relief may be declined as a matter of discretion where such relief would be futile or of little utility: see e.g. Lets We Forget Pty Ltd v Westpac Banking Corporation [2005] 56 ACSR 126 at [20]; Street v Luna Park Sydney Pty Limited [2009] NSWSC 1 at [271]-[273].”

53. In calling upon the Court to grant the injunction as sought, the plaintiff also relies on the following legal principles, which are closely directed to the nature of the relief sought (PWS [30]-[34]):

“30. The Court has the power to grant permanent injunctive relief pursuant to s 66 of the Supreme Court Act 1970 (NSW).

31. A permanent restraint can be sought to prevent infringement of a party’s rights and to prevent damage to the commercial interests of the plaintiff.

32. In Rush *[*Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383 at [7]-[30]] Wigney J, summarised the principles which apply to permanent injunctions in defamation cases. His Honour identified that the main reason for caution in granting a permanent injunction lay in the fact that the right of free speech may be unnecessarily curtailed or restricted by the injunction [Rush at [11]].

33. In the context of defamation cases, the main consideration in determining whether a permanent injunction was appropriate was the risk or apprehension that the respondence would republish the defamatory imputations [Rush at [12]]

34. In addition, the character of the respondent and their behaviour is a factor in the Court’s exercise of discretion. In Hockey [Hockey v Fairfax Media Publications Pty Limited (No 2) [2015] FCA 750], White J noted:

[15] Whatever be the position in England, permanent injunctions restraining a repetition of publication of matters found to be defamatory are not usually issued as a matter of course in this country. The authorities show that injunctions are issued only when some additional factor is evident, usually, an apprehension that the respondent may, by reason of irrationality, defiance, disrespect of the Court’s judgment or otherwise, publish allegations similar to those found to be defamatory unless restrained from doing so.”

Issues

54. Before I get to the merits of the contempt application, I must first be satisfied that matters of due process have been attended to. Consequently, Issue 1 is whether the contempt application should be dismissed given the plaintiff’s non-compliance with pt 55 rr 7 and 9 of the Supreme Court Rules (which is detailed below).

55. If I am satisfied that the contempt application should not be dismissed in light of the plaintiff’s procedural defaults, Issue 2 is whether the Court is satisfied the first defendant is guilty of civil contempt of Court. Having regard to the law and legal principles set out above and the findings sought by the plaintiff, I must be satisfied as to the following:

56. an order was made by a court;

57. the terms of the Order were clear, unambiguous and capable of compliance;

58. the alleged contemnor had knowledge of the terms of the Order; and

59. the alleged contemnor wilfully breached the terms of the Order.

60. Issue 3 is whether, in relation to the injunction, the Court exercise its discretion to grant an injunction in the terms sought by the plaintiff?

Background

57. The following background is a narrative of the relevant history.

The Review: 15 December 2024

58. The plaintiff owns and operates a business specialising in the provision of plumbing services in New South Wales (NSW) known as Fergusons Plumbing (Fergusons).

59. On 13 December 2024 Fergusons provided plumbing services to the first defendant and received payment of $919.50 for such services.

60. On around 15 December 2024, the first defendant posted a 1-star product review in respect of the services provided by Fergusons on a website known as Product Review (the Review).

61. At 9:39am on 16 December 2024, the plaintiff says it and the first defendant entered into an agreement whereby Fergusons would provide a refund of $459.50 in return for the Review being withdrawn and the first defendant agreeing not to “engage in conduct which would, or which reasonably could be interpreted as, disparaging, or tainting the reputation of all parties or their associates” (to be clear, I am not making any finding whether there was such an agreement, I am simply noting the allegation). At 9:45am, the plaintiff emailed the first defendant, writing “[p]lease confirm upon receipt of the remittance that the review will be removed immediately”, which the first defendant agreed to at 10:12am.

62. After the refund of $459.50 was given and confirmed by email at 10:15am on 16 December 2024, the evidence before the Court suggests the first defendant stopped replying to emails and did not take down the Review.

63. From 8:21pm on 16 December 2024, Fergusons gave the first and second defendants “formal notice” (as the plaintiff described it) via email that they were in breach of the terms of the “settlement agreement” (which is what the plaintiff called the alleged agreement described in the previous paragraph).

64. On 17 December 2024, the first defendant responded to emails from the plaintiff’s solicitors refusing to take down the Review.

65. On 18 December 2024, the plaintiff commenced proceedings against the first defendant and second defendant seeking urgent interim relief to have the Review taken down and to stop the defendants from further disparaging the plaintiff.

66. At some time on 18 December 2024, Meek J relevantly made the following orders:

“The Court:

…

2 Orders that the time for service of the Summons, the Affidavit filed in Court, the Exhibit referred to therein and these Orders (together the Documents) on the Defendants be abridged to 12pm on Thursday 19 December 2024, such service to be effected, in the first instance, by:

a. sending an email with the Documents attached to the First Defendant's email address being x@x.com.au;

b. sending an email with the Documents attached to the Second Defendant's email address being x@gmail.com; and

c. delivering the Documents to the Defendants' residential address at 8 Boronia Road, Kentlyn 2560 in the State of New South Wales.

3 Orders that the Summons be made returnable before the Equity Duty Judge at 12pm on Friday 20 December 2024.”

67. I note this is the only time an order was made specifying how service was to be effected. There is no subsequent order as appears on the record nor one that I was taken to which permits substituted service for any further documents beyond “the Summons, the Affidavit filed in Court, the Exhibit referred to therein and these Orders” as specified in Meek J’s orders above.

68. Shortly after 18 December 2024 and before the hearing for interim relief on 20 December 2024, the Review was taken down. It is not clear when precisely this occurred. This is not a fact in dispute.

Order: 20 December 2024

69. On 20 December 2024, Meek J made the following order (the Order) (amongst others):

“Order that the Defendants file and serve an Affidavit within 7 days of these Orders disclosing all publications made by either of them on social media or other platforms regarding the Plaintiff and/or the Plaintiff’s plumbing business known as Ferguson’s Plumbing.”

70. In relation to the proceedings of the Court that took place on 20 December 2024, and all subsequent listings, there was no appearance of the first defendant.

71. The Order was sent to the first defendant and second defendant by the plaintiff’s solicitors, New South Lawyers (NSL) by email on 20 December 2024 at 1:47pm. The email address for the first defendant used by NSL was x@x.com.au. NSL used this email address in their initial email to the first defendant (as referred to at [64] above) and all subsequent emails to the first defendant, and when the first defendant responded to an email from NSL, that same email address was used by the first defendant.

72. The time to comply with the Order was extended by further orders of the Court on the following occasions: 13 February 2025, 6 March 2025, and 27 March 2025 (PWS [15]), discussed below. I note that, strictly, the orders made on these dates did not extend the time for compliance with the Order but made a new order reflecting the terms of the Order, but with a new date for compliance. However, for simplicity’s sake and in accordance with how the plaintiff described the new orders, I will refer to the relevant orders made on these days as “extensions” of the time for compliance with the Order. Additionally, when I refer below to “extensions” or an “extension order”, I am compendiously describing an order whose effect is to extend the time for, relevantly, the first defendant to comply with the Order.

First extension of the Order: 13 February 2025

73. The first extension order in relation to the Order was made on 13 February 2025 and was in the following terms:

“The Defendants to file and serve an Affidavit disclosing all publications made by either of them on social media or other platforms regarding the Plaintiff and/or the Plaintiff’s plumbing business known as Fergusons Plumbing by 27 February 2025.”

74. One of the further orders made on that day was for the plaintiff to notify the defendants of these orders (Order 3).

75. The plaintiff did not inform the defendants of the orders made on 13 February 2025 until 4 March 2025 at 12:06pm. In the email referring to the orders made on 13 February 2025, the solicitors for the plaintiff stated, “[w]e note we may have inadvertently failed to inform you of the Orders made by the Court on 13 February 2025”. The solicitors for the plaintiff then informed the defendants that the 13 February 2025 directions hearing had been adjourned to 6 March 2025.

76. I note, without making a finding, that the plaintiff failed to inform the defendants of the 13 February 2025 orders until 4 March 2025, and the terms of the extension order required, relevantly, the first defendant to comply with the order by 27 February 2025, such that it appears it was not possible for the first defendant to comply with this first extension order.

77. Also on 4 March 2025, at 4:06pm, NSL wrote to the Registrar in Equity noting the first defendant’s non-compliance with the Order (from 20 December 2024) and attaching proposed Short Minutes of Order for the directions hearing listed for 6 March 2025. The first and second defendants were copied into the correspondence.

78. At 4:20pm on the same day, the first defendant sent the following response to the email from NSL to the Registrar in Equity (noting the Registrar does not appear to have been copied into the reply):

“Piss off you wankers” [sic]

Second extension of the Order: 6 March 2025

79. On 6 March 2025, a directions hearing took place during which a second extension order was made in relation to the Order, specifying compliance by 20 March 2025. Notice of the Order and further orders made at the directions hearing were sent by NSL, by email to the first and second defendants on 10 March 2025 at 10:21am.

80. This second extension order in relation to the Order was in the following terms:

“The defendants to file and serve an Affidavit disclosing all publications made by either of them on social media or other platforms regarding the Plaintiff and/or the Plaintiff’s plumbing business known as Fergusons Plumbing by 20 March 2025.”

Third extension of the Order: 27 March 2025

81. On 27 March 2025, a directions hearing took place during which a third extension order in relation to the Order was made, specifying compliance by 3 April 2025. Notice of the Order and further orders made at the directions hearing was sent by NSL, by email, to the first and second defendants on 28 March 2025 at 1:10pm.

82. The orders made on 27 March 2025, including the third extension order in relation to the Order, were in the following terms:

“1. The defendants to file and serve an Affidavit disclosing all publications made by either of them on social media or other platforms regarding the Plaintiff and/or the Plaintiff’s plumbing business known as Fergusons Plumbing by 3 April 2025.

2. If the Defendants fail to comply with Order 1, the Plaintiff, as applicant, to file and serve a Notice of Motion seeking an order that the Defendants, as contemnors, are guilty of civil contempt of Court for failing to file and serve an affidavit disclosing all publications made by either of them on social media or other platforms regarding the Plaintiff by 17 April 2025, pursuant to Rule 55 of the Supreme Court Rules 1970 (NSW).”

Contempt application

83. On 30 April 2025 at 12:04pm, NSL emailed the Registrar in Equity proposing orders for the directions hearing listed on 1 May 2025. The email foreshadowed the filing of a Notice of Motion bringing the contempt application. The defendants were copied in.

84. At 12:19pm on the same day, NSL received the following response to the email that had been sent to the Registrar in Equity (noting the Registrar does not appear to have been copied into the reply):

“Fuck off you wanker” [sic]

85. On 1 May 2025, the Registrar in Equity made an order for the plaintiff to file and serve a Notice of Motion by 15 May 2025 seeking an order that the defendants, as contemnors, are guilty of civil contempt of court for their failure to file and serve an affidavit disclosing all publications made by either of them on social media or other platforms regarding the plaintiff. The Registrar in Equity also made an order for the plaintiff to notify the defendants of these orders. Evidently, no Notice of Motion in relation to contempt was filed by 17 April 2025, as contemplated by the orders made on 27 March 2025. No Notice of Motion was filed by 15 May 2025 either, as contemplated in the orders made on 1 May 2025.

Intention to issue penal notice

86. On 22 May 2025, the plaintiff was granted leave to approach the Chambers of Meek J for the purpose of having the Order issued with a penal notice. The plaintiff was once again ordered by the Registrar in Equity to notify the defendant. The matter was stood over until 26 June 2025.

87. On 25 June 2025 at 1:07pm, NSL emailed the defendants notifying them of the outcome of the directions hearings of 1 May 2025 and 22 May 2025 and of the intention to approach the Chambers of Meek J seeking a form of orders, including a further extension order in relation to the Orders, incorporating the penal notice.

88. At 1:37pm on the same day, the first defendant responded to the email from NSL stating:

“Thanks for that.

Now fuck off you piece of shit” [sic]

89. On 26 June 2025, the matter was listed before the Registrar in Equity for further directions. The Registrar in Equity stood the matter over until 24 July 2025 and required the plaintiff to notify the defendants.

Further Order: 30 June 2025

90. On 30 June 2025 Meek J made, amongst others, the following order (the Further Order) in relation to the first defendant:

“Orders the First Defendant is to file and serve an Affidavit disclosing all publications made by him on social media or other platforms regarding the Plaintiff and/or the Plaintiff’s business known as Ferguson’s Plumbing by 14 July 2025.”

91. In his Honour’s orders of 30 June 2025, Meek J also granted to the plaintiff, upon failure of the first defendant to comply with the Further Order, liberty to apply to file and serve by 17 July 2025 a Notice of Motion seeking an order that the first defendant, as contemnor, is guilty of civil contempt for failing to serve an affidavit disclosing the various matters required by the various orders, by various dates specified in his Honour’s orders.

92. Identical orders were made with respect to the second defendant.

93. The sealed copy of the orders made by Meek J on 30 June 2025, which included the Further Order, contained a penal notice addressed to the first defendant in the following terms (there was also a second, identical notice addressed to the second defendant):

“PENAL NOTICE

TO: Starr Kopa (First Defendant)

IF YOU:

A. REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

B. DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.”

94. It will be noted that the Further Order is essentially in the same terms as the Order, however the date for compliance with it was, in effect, now extended to 14 July 2025.

95. On 11 July 2025 at 3:37pm, only three days before the date for compliance, the plaintiff served on, relevantly, the first defendant a sealed copy of the orders made by Meek J on 30 June 2025, which included the Further Order and the penal notice, together with correspondence advising the first defendant of the listing before the Equity Duty Judge on 24 July 2025. Service was said to have been effected by two copies of the documents being handed to the first defendant at the residential address of the first and second defendants.

Extension of the Further Order: 24 July 2025

96. On 24 July 2025 a directions hearing took place during which an order was made extending the time for compliance with the Further Order to 14 August 2025 (the Further Order E****xtension) in the following terms:

“1. The Orders made by His Honour Justice Meek on 30 June 2025 and sealed 11 July 2025 are noted (the Orders).

2. Extend the time for the first defendant to comply with Order 2 of the Orders to 14 August 2025.

3. Extend the time for the second defendant to comply with Order 3 of the Orders to 14 August 2025.”

97. On 24 July 2025 at 7:12pm, NSL emailed the defendants who again had not appeared at the directions hearing on that day. The plaintiff attached to that email a copy of the orders made by Meek J on 30 June 2025, including the Further Order, and the orders made by the Registrar in Equity that day, including the Further Order Extension.

The Motion is filed: 27 August 2025

98. On 27 August 2025 at 11:53am, NSL emailed the Registrar in Equity foreshadowing the filing of a Notice of Motion later that day, applying for contempt findings and final relief. The defendants were copied into that correspondence. Evidently, no Notice of Motion was filed by the plaintiff as contemplated in the orders made on 30 June 2025.

99. At 12:01pm on the same day, the first defendant sent the following response to NSL (noting the Registrar in Equity does not appear to have been copied into the reply):

“Fuck off you scamming pricks. Your clients rip.ppl off and are suspended you Wanker” [sic]

100. The Motion was filed on 27 August 2025 at 4:52pm.

101. Later that same day (27 August 2025), NSL emailed the Motion and supporting affidavit (the affidavit of Rory O’Connor sworn 27 August 2025, as well as exhibit RPO-1) to the defendants.

102. The affidavit of Rory O’Connor contains evidence of all alleged non-compliance by the defendants with various orders of the Court, up to and including evidence relevant to the alleged non-compliance with the Further Order Extension.

103. On 28 August 2025, at a further directions hearing the Registrar in Equity noted the defendants’ alleged failure to comply with the Further Order and Further Order Extension and listed the matter for directions on 25 September 2025.

104. On 1 September at 5:32pm, NSL emailed to the defendants a Notice of Listing which indicated the Motion was listed for directions on 11 September 2025. At 8:30pm that same day, the first defendant responded to that email in the following terms:

“Don’t fucking Care you grubs” [sic]

105. On 4 September 2025, the Notice of Motion, the affidavit of Rory O’Connor and a Notice of Listing were said to have been served on the defendants by depositing two copies at their shared residential address. The process server deposed that the documents were deposited in the letterbox of the property after “having received no response from repeated knocking at the front door of the property”.

106. The Motion was routinely listed for directions on 11 September 2025. At this directions hearing the matter was stood over to 15 October 2025, with an order that the plaintiff notify the defendants.

107. On 23 September 2025 at 2:06pm, NSL emailed the Registrar in Equity proposing Short Minutes of Order for the directions hearing listed on 25 September 2025. The defendants were copied in.

108. At 2:23pm on that same day, the first defendant sent the following response to NSL (noting the Registrar does not appear to have been copied into the reply):

“Haha piss off” [sic]

109. At the directions hearing on 25 September 2025, the Registrar in Equity listed the Motion for directions on 15 October 2025, and once again ordered that the plaintiff notify the defendants.

110. On 22 October 2025 at 5:14pm, NSL emailed the defendants advising them that a directions hearing had occurred on 15 October 2025 and that the next listing in relation to the Motion was on 29 October 2025.

111. At 5:51pm on that same day, the first defendant sent the following response to NSL:

“Fuck off” [sic]

Statement of Charge: 28 October 2025

112. On 28 October 2025 the plaintiff filed two Statements of Charge in respect of the first defendant and the second defendant. A copy of each of the Statements of Charge was included in the documents before the Court on this Motion.

113. On 28 October 2025 at 2:52pm NSL emailed the first defendant, copying in the second defendant, a copy of the Statement of Charge in respect of the first defendant, together with the affidavit of Caroline Nicholas sworn 27 October 2025.

114. At 2:53pm on that same day, the first defendant sent the following response to NSL:

“Not interested thanks” [sic]

115. On 29 October 2025, the Registrar in Equity listed the Motion for hearing on 19 February 2026 before me and ordered the plaintiff to notify the defendants.

116. On 29 October 2025 at 4:24pm, NSL sent an email to the defendants notifying them of the listing of the Motion for hearing.

117. At 4:26pm on that same day, the first defendant sent the following response to NSL:

“Not interested thanks you” [sic]

118. On 5 November 2025, the defendants were said to have been served with the Statements of Charge by a process server handing them to the second defendant at their shared residential address. The process server gave the following evidence with respect to service of the first defendant in his affidavit sworn 17 November 2025 (italicisation in original):

“3 I served the documents by handing the same to Brooklyn Rodger, a female apparently over the age of 16 years and apparently residing at the property, at X X Road , Kentlyn NSW 2560 and such address being the last-known and usual place of residence of the First Defendant.

4 At the said time and place of service I had a conversation with the person so served by me in words to the following effect-

I said : ‘Is Starr Kipa [sic] present as referred to in these documents?’

The person replied : ‘He is the Adelaide area at the moment and is due to return in about two weeks. I do not have his location there as he is working Fly In Fly Out. I can accept the documents on his behalf and give them to him when he comes home. I will bring them to his attention beforehand. I am Brooklyn Rodger.’”

Pre-hearing correspondence: 2026

119. On 29 January 2026 at 3:47pm, in accordance with my usual practice, my Associate sent an email addressed to the “Practitioners” in relation to the hearing of the Motion on 19 February 2026, which set out expectations in relation to the terms of the Usual Order for Hearing. In that email my Associate wrote:

“I do not presently have an email address for the defendants, so please forward this communication to them if possible.”

120. On 30 January 2026 at 2:49pm, NSL wrote to the first defendant forwarding the email from my Associate. The email included the following statements:

“We refer to the Notice of Motion listed before the Honourable Justice Bennett on 19 February 2026 at 10:00am. … Please ensure that you are in attendance at the hearing of our clients [sic] Notice of Motion on 19 February 2026. Should you wish to discuss the matter please contact the writer.”

121. At 3:07pm on that same day, the first defendant sent the following response to NSL:

“How about you fuck off with your rip off company” [sic]

122. At 3:14pm on that same day, NSL emailed my Chambers copying in the defendants. That email was in the following terms:

“… We confirm the proceedings are listed for hearing of the Plaintiff’s Notice of Motion before Justice Bennett on 19 February 2026.

We confirm a copy of your email at 3.47pm on 29 January 2026 has forwarded to the First and Second Defendants.

We confirm the First and Second Defendants have been carbon copied into this email.”

123. At 3:26pm on that same day, the first defendant sent the following response to NSL (not copying in my Chambers):

“Confirm this

They and you are rip off Buckland who have been in trouble with authorities you pieces of shit” [sic]

The Hearing

The contempt application as against the second defendant

124. In their original written submissions, the plaintiff sought the following factual findings (formatting as per original):

“26. The Plaintiff seeks the factual findings set out below:

26.1. First, the Order was one that was made by the Court. There can be no doubt that the Order was made by the Court with the time for compliance extended by further order of the Court on 5 separate occasions;

26.2. Second, the terms of the Order were clear and comprehensible and capable of compliance by the Defendants. It is plain from the responses of the First Defendant that:

(a) the non-compliance with the Order was not as consequence of the First Defendant not understanding the Order of what was required for compliance; and

(b) non-compliance appears to have stemmed from venal feelings which the First Defendant has towards the Plaintiff and, by extension, its legal advisors;

26.3. Third, each Defendant had knowledge of the Order and of the 5 extensions of the date of compliance of the Order;

26.4. Fourth, in compliance with UCPR rule 40.7, each Defendant was properly served with the Order;

26.5. Fifth, in breach of UCPR r 40.6, each Defendant failed to comply with the Order;

26.6. Sixth, the Defendants deliberately and defiantly refused to comply with the Order;

26.7. Seventh, the Defendants’ conduct in respect of compliance with the Order constituted conscious defiance of the Court’s orders such it is at the more serious range of contempt and is properly categorised as criminal contempt:

(a) the correspondence to the Plaintiff’s solicitors consistently and crudely illustrates the First Defendant’s deliberate and contumacious non-compliance with an order of the Court;

(b) it is beyond doubt that the Defendants deliberately did not comply with the Court’s orders.

This is sufficient to enable the Court to make the sixth and seventh factual findings.

26.8. Eighth, the Second Defendant was wilfully blind to compliance with the Order:

(a) the Second Defendant’s lack of engagement does not result in the Court being unable to find that she was in contempt;

(b) the Second Defendant’s wilful blindness is demonstrated by her blithe response that she is wont’ [sic] be able to make it when confronted with upcoming Court listings.”

125. I made the following comments during the course of the hearing about the second defendant:

“So in terms of the notice of motion, you’re seeking orders 1 and 2. Both of them are in relation to a finding of civil contempt of court. And you’ve split them: order 1 is in relation to the first defendant and order 2 is in relation to the second defendant. I just flag the fact ‑ and I’m going to come to this in your submissions. First of all, most of the time, if not all of the time, when you’re making submissions, you haven’t split the first defendant and the second defendant. I must have that. So I flag that. You have split it here properly.” (TR P5 L29-35)

“I guess what did stand out for me, if you go to your p 8, there is para 25.7 [on 23 October 2025, NSL received the following response from the Second Defendant: We won’t be able to make it sorry.]. That’s why I did remember that particular response from the second defendant. From my perspective ‑ and again, all of this is preliminary ‑ there are a number of emails sent to both the first defendant and second defendant, and that is your one bit of proof that in fact she uses that. So I think it’s useful because of that, but, again, I want it all set out separately.” (TR P6 L26-31)

126. My preliminary views led to an exchange between counsel for the plaintiff and myself (TR P6 L33-P7 L4), during which counsel for the plaintiff said the following:

“Klooster: Can I say at the outset it will be difficult for my client to establish contempt against the second defendant, given the only written communication from the second defendant is the one your Honour’s identified, which, on a fair reading, is a polite and civil communication.”

127. Consequently, I gave the plaintiff the opportunity to put on supplementary submissions, in which no findings of contempt were sought against the second defendant.

Penalties

128. The Motion filed 27 August 2025 sought orders, amongst others, that the first and second defendants be found guilty of civil contempt. No orders were sought regarding penalties.

129. In their original opening written submissions, the plaintiff made the following submissions as to penalties (footnotes omitted):

“First Defendant

27. In the face of the First Defendant’s belligerent and aggressive non-compliance with the Order, the Court ought to find that the First Defendant is guilty of criminal contempt.

28. An appropriate sanction the First Defendant would be the imposition of a $10,000 fine, or such other amount as the Court determines, pursuant to r 13 of Part 55 of the Supreme Court Rules 1970 (NSW).

29. Given the contumacious nature and deliberate defiance of the Court orders by the First Defendant and the vicious, vituperative correspondence directed to the Plaintiff’s legal representatives, permanent injunctive relief is appropriate53in the form contained in Prayer 5 of the Motion.

Second Defendant

30. In respect of the Second Defendant, the Court ought to find her guilty of criminal contempt and impose a fine of $5,000.00, or such other amount as the Court determines, pursuant to r 13 of Part 55 of the Supreme Court Rules 1970 (NSW).

31. Whilst the conduct of the Second Defendant is not as egregious as the First Defendant, her repeated non-compliance is sufficient to warrant a permanent injunction.”

130. I had an exchange with counsel for the plaintiff during the course of the hearing about consideration of penalties (TR P17 L11-P18 L16), which I consider appropriate to set out in full below:

“KLOOSTER: Your Honour then needs to consider sanctions. If your Honour’s satisfied that civil contempt has been made out to the requisite standard, what sanctions apply. I cannot point to any damage or harm that has arisen by reason of the first defendant’s contempt. There are cases where there’s been non‑disparagement orders and defendants have published in any event, and then plaintiffs can demonstrate that there’s been some type of loss. But there’s nothing like that before your Honour.

The request that has been made is a $10,000 fine or such other amount as the Court determines. It is open to your Honour to sanction the first defendant and take no further steps other than a sanction.

HER HONOUR: But didn’t we talk about the notice of motion doesn’t ‑ I mean, even if I don’t think about what Justice Meek had foreshadowed you were able to ask for, I mean, surely, if I were to be considering imposing a fine of $10,000 or something like that, that’s the sort of thing that ought to have been in a notice of motion. That might have in fact interested the first defendant a little bit more than just a finding of civil contempt.

KLOOSTER: I’ll just check. I accept that there’s some force in what your Honour says in the sense that, again, someone needs to understand the case that has been put against them and the charges that have been brought in this particular case.

HER HONOUR: Again, I mean, when I look at your notice of motion, I’m looking at the orders that are being sought. And then I look to your submissions to see what you’re pressing and what you’re not. I always would have great concern when there are things that are being asked for that aren’t asked for. Like, if there’s an order that’s being sought from me that hasn’t been foreshadowed in the notice of motion, really, in my view, there would need to be an application to amend. And then from a procedural fairness point of view, you go through the whole motions of having to give notice. So at a procedural fairness level, at a technical level ‑ I mean, I’m just saying this, Mr Klooster. Why wouldn’t you need to amend your notice of motion to include this order that you’re now seeking? That’s not in there.

KLOOSTER: We would need to because I can concede that there is no indication in the statement of charge as to penalty. The only penalty that is sought mirrors that in the motion, which is we just seek a finding that the first defendant has committed a civil contempt. It is open to your Honour to make that finding today and then defer sentence to another time, and that would afford my client the ability to elect as to whether or not to pursue any further action against the first defendant in that respect. Without instructions, I suspect that will be the position I will take. That would obviate the need to amend.

HER HONOUR: Yes.

KLOOSTER: Your Honour then would make findings of contempt. It would be open for my client to bring a further application for penalty.

HER HONOUR: All right. So I will stick to the four walls of the notice of motion, or the parts of it that are pressed, and you’ll make that clear in your submissions.

KLOOSTER: Yes.”

131. Consequently, in the plaintiff’s supplementary submissions, no penalties were sought against the first defendant (at least, not simultaneously with any findings of contempt).

Procedural defaults: correspondence in Chambers

132. Rule 9 of pt 55 of the Supreme Court Rules requires that “the notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor” (emphasis added).

133. According to the evidence outlined at [101] and [105], service of the Motion and supporting affidavit was effected by an email to both defendants dated 27 August 2025 and depositing two copies of those documents in the letterbox of the shared residential address of both defendants on 4 September 2025.

134. According to the evidence outlined at [113] and [118], service of the Statements of Charge was effected by two separate emails to each defendant each dated 28 October 2025 and by handing the documents to the second defendant only at the residential address of both defendants on 17 November 2025.

135. I also note that r 7 of pt 55 of the Supreme Court Rules requires that “a statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons” (emphasis added). As outlined at [100] and [112], the Motion was filed on 27 August 2025 whilst the Statement of Charge was filed on 28 October 2025.

136. As noted in The Site Foreman at [8], leaving copies of a document in a letterbox does not constitute personal service. Nor does emailing documents fulfil the requirements of UCPR r 10.21.

137. In preparing this judgment, I became concerned that due process in regards to service of documents had not been followed, in that the Statements of Charge were not filed with the Notice of Motion, and that neither those documents nor the supporting affidavits were served personally on the defendants. The plaintiff itself had not raised or otherwise addressed these issues. In particular, I had regard to this statement by Barrett J in McDonnell v Novello at [35] set out earlier in these reasons, but which bears repeating:

“An allegation of contempt of court is serious and not to be made lightly. It may lead to loss of liberty. It behoves anyone pursuing such an allegation to do so with precise attention to all matters going to due process.”

138. Consequently, I caused my Associate to send this email to the parties which I consider necessary to set out in full, acknowledging it will add to the length of this judgment (formatting and emphasis as per original):

“Dear Parties and Practitioners,

Justice Bennett has instructed me to send this email on her Honour’s behalf.

In the course of preparing her Honour’s reasons for judgment in this matter, her Honour has become concerned about two matters relevant to this application which her Honour considers, as a matter of procedural fairness, should be raised with the parties. The matters about which her Honour is concerned are:

1. potential non-compliance with Supreme Court Rules 1970 (NSW) (SCR) part 55, r 9; and

2. non-compliance with SCR part 55, r 7.

Those matters will be addressed in turn.

Her Honour also wishes to clarify that the concerns which follow relate only to the first defendant, noting that the plaintiff indicated at the hearing of the motion that it would not press its claim of contempt against the second defendant.

Potential non-compliance with SCR part 55, r 9

Rule 9 of Part 55 of the SCR requires that ‘the notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.’ (emphasis added)

According to the evidence led on the contempt application:

• The Notice of Motion for contempt and supporting affidavit (with its exhibit) was served on the first defendant and second defendant:

o on 27 August 2025, by a single email; and

o on 4 September 2025, by depositing two copies of those documents into the letterbox of the shared residential address of both of the defendants.

• The Statement of Charge was served on the first defendant and second defendant:

o on 28 October 2025, by two emails separately addressed to each defendant; and

o on 17 November 2025, by handing the documents to the second defendant only at the residential address of both of the defendants.

Her Honour is concerned that the notice of motion, statement of charge, and affidavits have not been served personally at any point on the contemnor in question, being the first defendant. Her Honour observes that the SCR do not contain any rules providing for how personal service may be effected. Her Honour’s preliminary view is that the rules for service contained in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) apply to these contempt proceedings, by reason of the combined operation of s 11 of the Civil Procedure Act 2005 (NSW) (CPA) and schedule 1 of the UCPR (applying the UCPR to all civil proceedings in the Supreme Court). Division 3 of Part 10 of the UCPR provides rules for how personal service is to be effected, and her Honour does not consider that the relevant rules have been complied with. More specifically, it does not appear on the evidence before the Court that r 10.21 has been complied with in relation to the first defendant (there being no observation, either way, in relation to the second defendant).

Her Honour has not been taken to any orders that might qualify or affect the requirement for personal service of the documents listed in r 9 of Part 55 of the SCR.

Non-compliance with SCR part 55, r 7

Rule 7 of Part 55 of the SCR requires that ‘A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons.’ (emphasis added)

The Statement of Charge was filed on 28 October 2025. The Notice of Motion for contempt was filed on 27 August 2025. Her Honour considers it tolerably clear that the Statement of Charge was not subscribed to or filed with the Notice of Motion as required by r 7.

What is requested of you

Her Honour wishes to be addressed in writing on the following matters as they concern the first defendant, the contemnor against whom the motion for contempt is pressed:

1. whether personal service of the Notice of Motion, supporting affidavits and Statement of Charge has in fact been effected on the contemnor, being the first defendant, contrary to her Honour’s preliminary view; and

2. why her Honour should not dismiss the Notice of Motion for contempt given these procedural defaults, in light of:

a. the decision of Barrett J in McDonnell v Novello [2006] NSWSC 1186, having regard to [34]-[35] of that decision; and

b. the decision of Harrison J in Chandrasekaran v Western Sydney Local Health District [2019] NSWSC 1231, having regard to [8]-[9] of that decision.

(Copies of the latter two decisions are attached.)

Her Honour requests that those submissions be provided by no later than 4pm on Thursday, 30 April 2026, being one week from today**.**

[Email signature of my Associate]”

139. I granted the plaintiff an extension of time to provide those further submissions to 9:00am on Monday, 4 May 2026. At 5:00pm that day on 4 May 2026, I received written submissions from the plaintiff responding to my concerns as to the plaintiff’s potential procedural defaults.

Pre-Judgment Delivery

140. On Wednesday, 20 May 2026 at 10:18am, I caused my Associate to email the parties advising that judgment in this matter was to be handed down on Friday, 22 May 2026 at 4:15pm. My Associate received an automatic reply that his message to x@x.com.au was undelivered as the email account does not exist. At 10:33am on Wednesday, 20 May 2026 I caused my Associate to again email the parties requesting that his email be brought to the first defendant’s attention by alternative means.

141. At 9:01am on Friday, 22 May 2026, I received the following email from the first defendant (formatting as per original):

“Hello

I only just been messaged yesterday about an upcoming court date today. My name is Starr Kopa and being short notice I can't attend as I am out working past Goulburn.

My attendance for this matter can't happen when it's short notice.

Kind regards

Starr Kopa”

I note this is the only email my Chambers has received directly from the first defendant.

Issue 1: Whether the contempt application should be dismissed given the plaintiff’s non-compliance with pt 55 rr 7 and 9 of the Supreme Court Rules

142. The plaintiff conceded that personal service of the Motion, affidavits in support and Statement of Charge had not been effected on the first defendant (PWS Procedure [2]). The plaintiff provided submissions on why it would nevertheless be appropriate to dispense with the personal service requirements under s 14 of the Civil Procedure Act.

143. The plaintiff noted the orders made on 18 December 2024, which the plaintiff described as providing that service “in the first instance” could be effected by emailing the Summons and affidavits in support to the first defendant (I additionally note the orders provided for service by email and by delivering documents to the first defendant’s (and second defendant’s) residential address). The plaintiff states that these orders are “equivalent to an Order for substituted service”.

144. To the extent that these orders may be considered to be equivalent to an order for substituted service, I emphasise that these orders explicitly relate only to “the Summons, the Affidavit filed in Court, the Exhibit referred to therein and these Orders”. This is not an order for substituted service that applies to all documents henceforth in the proceedings. In subsequent hearings, an equivalent order specifying how service may be effected was never made. The plaintiff’s concession that the personal service requirements of pt 55 r 9 of the Supreme Court were not met was well made.

145. Despite the email to the parties sent on my behalf requesting submissions on this issue as well as the personal service issue, the plaintiff did not make any submissions regarding the evident failure to comply with pt 55 r 7 of the Supreme Court Rules given the Statement of Charge was filed two months after the Motion. The plaintiff’s further written submissions made no reference to its failure to comply with the rules in this respect. The plaintiff’s submissions only addressed whether I ought to dispense with requirement for personal service in pt 55 r 9 of the Supreme Court Rules. For reasons I explain at [160] below, considered in conjunction with r 9 of pt 55, r 7 of pt 55 is an important rule.

In what situations can personal service requirements be dispensed with?

146. The plaintiff brought to my attention three authorities on the topic of personal service in contempt applications, being Coward v Stapleton, Ronowska v Kus, and Anderson v Hassett. The plaintiff also made submissions in relation to McDonnell v Novello and Chandrasekaran v Western Sydney Local Health District [2019] NSWSC 1231 which I had caused to be brought to their attention.

147. The plaintiff’s submissions requested s 14 of the Civil Procedure Act 2005 (NSW) be used to dispense with the requirement for personal service under pt 55 of the Supreme Court Rules. Section 14 states:

“In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.”

148. Whilst the plaintiff submitted that personal service should be dispensed with under s 14 of the CPA, I note the authorities referred to above also discuss personal service being substituted in the context of contempt. Currently, the power to order personal service to be substituted can be found in r 10.14 of the UCPR. Prior to the enactment of the CPA and UCPR, the Supreme Court Rules contained both provisions empowering orders for substituted service and for dispensing with the requirements of the rules (pt 1 r 12 (concerning dispensation with the rules generally) and pt 9 rr 10 and 11 (concerning substituted service and informal service)). I note that both the UCPR and CPA have been used to allow for alternatives to personal service in contempt proceedings (see, for example, Anderson v Hassett at [9]-[10] for the CPA, Mohareb v Office of the Director of Public Prosecutions (NSW) [2024] NSWCA 68 at [26]-[28] for the UCPR). Both powers are discretionary and should be read in light of the authorities concerning contempt. This aligns with the submissions made to me by the plaintiff, where no distinction was made between the dispensing with of personal service requirements and the making of an order for substituted service.

149. The plaintiff made the following submissions in relation to when personal service can be substituted or dispensed with in contempt proceedings (formatting as per original):

“5. The evident purpose of the requirement for personal service in Part 55 of the Supreme Court Rules is to ensure that, before there is a finding that a person is guilty of contempt, the alleged contemnor is:

5.1. clearly informed of the charge against him/her; and

5.2. is given ‘a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment’ [Coward v Stapleton (1953) 90 CLR 573 at 579-80 per Williams ACJ, Kitto and Taylor JJ].

6. If the above purpose is achieved by means other than personal service, there can be no unfairness and no objection in principle to proceeding with the hearing of the application against him/her [Ronowska v Kus (No 2) [2012] NSWSC 817 at [31] per Pembroke J, applied in Queensland Building and Construction Commission v van Uden [2021] QDC 103 at [25]].

7. Plainly, the rules of the Court are there to assist and not enslave the Court. For this reason, there have been occasions (based on their own facts) where the requirement for personal service under Part 55 has been dispensed with under s 14 of the Civil Procedure Act 2005 (NSW) [See for example Anderson v Hassett [2007] NSWSC 1310 at [10]].”

150. It might be accepted that, broadly speaking, if the purpose of personal service has been achieved by means other than personal service, there can be no unfairness nor objection in principle to proceeding with the hearing of contempt. However, I do not accept that in the context of contempt proceedings, the “purpose” of personal service is fulfilled simply by giving a copy of documents required to be personally served to a contemnor, which is essentially the thrust of the plaintiff’s submissions in this case given their submission at PWS Procedure [8.4] that the purpose of the personal service requirements of pt 55 of the Supreme Court Rules has been fulfilled here.

151. In this, I have regard to the authorities raising the need for strict compliance with procedure and precise attention to due process in contempt proceedings as outlined at [34]-[36] above. The authorities refer to “elementary justice,” and principles that must be “rigorously insisted on”. As is elucidated from those authorities, the better view is that the question of unfairness with respect to not effecting personal service in contempt cases is something which demands careful consideration and waiving personal service or other procedural requirements should not be done lightly.

152. Notwithstanding this, I acknowledge there is some flexibility and personal service is not an absolutely indispensable requirement. However, the leading High Court authority suggests that personal service may only be substituted or dispensed with “in a proper case” and “when all reasonable efforts to effect personal service of a notice of motion to commit have been made and failed” (Doyle). This is consistent with the language of the C**PA, in that the condition on the court’s power under s 14 to dispense with any requirement of rules of court is that the court must be satisfied that it is “appropriate to do so in the circumstances of the case”.

153. I also note intermediate appellate authority, albeit from different a jurisdiction and in a slightly different context, that even when the judge is satisfied beyond reasonable doubt that the contemnor was aware of his obligations, “something more [is required] to persuade him or her that justice requires dispensing strict compliance” (Morgan v Victoria (2008) 22 VR 237; [2008] VSCA 267 at [132] (Nettle and Ashley JJA)). It is a high bar that must be cleared to dispense with procedural requirements considering the seriousness of the charge of contempt and the potential loss of liberty (or loss of funds) associated with it.

154. The plaintiff raises what Pembroke J said in Ronowska v Kus at [31], which I will repeat again for convenience:

“The evident purpose of the requirement for personal service in Part 55 of the Supreme Court Rules is to ensure that, before there is a finding that a person is guilty of contempt, the alleged contemnor is clearly informed of the charge against him and is given ‘a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment’: Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573 at 579-80 (Williams ACJ, Kitto and Taylor JJ). If that purpose is achieved by means other than personal service, there can be no unfairness and no objection in principle to proceeding with the hearing of the application against him.”

155. I am of the view that what Pembroke J said must be considered within its context and does not override the broader principles stated by the High Court in Doyle. I firstly note this because [31] immediately proceeds Pembroke J citing quoting the part of Doyle where the High Court had said that “substituted service may be ordered in a proper case” (emphasis added). The statement at [31] must be read in the context of being formulated with consideration to the principles of Doyle. Secondly, the facts before Pembroke J are materially different to those here. The case before Pembroke J was one where the contemnor repeatedly avoided service and personal service was attempted. It is clear that a court may not insist upon strict compliance with personal service where a person is trying to evade personal service (Franco v Mazzetti (No 3) [2024] NSWLEC 42 at [18]), and it appears to me, in context, this is more likely the principle that Pembroke J is referring to.

156. I am of the view that the correct question to ask here is, using the words of Doyle, whether this is a proper case to dispense with the requirement for personal service. However, I shall also consider the plaintiff’s more specific submission, namely that the need for personal service can be dispensed here as the purpose of personal service has been met.

Is this a “proper case” to dispense with personal service requirements?

157. The plaintiff submits that this case has “unique facts” and an “uncontested procedural history”, in that the first defendant has clearly been informed of the charge against him by virtue of his continued email communications.

158. However, I am of the view that the matter before me is not a “proper case” in which the requirements of personal service ought to be dispensed with. That is, irrespective of the plaintiff’s emails, I consider it would not be appropriate to dispense with the requirements of personal service in these circumstances given the significant procedural defaults infecting the contempt application. I have come to this conclusion with reference to the following fundamental problems with the application at hand.

159. Firstly, there was little attempt to comply with the requirement of personal service of the relevant documents. Only one attempt was made to personally serve the Motion and supporting affidavit to the first defendant at his residential address, after which it was deposited at the letterbox at that address. Similarly, only one attempt was made to personally serve the Statement of Charge to the first defendant, after which it was handed to the second defendant again at their residential address. This is in stark contrast to cases where orders for substituted service have been made after multiple attempts to serve the contemnor (for instance, Burwood Council v Wanless [2013] NSWLEC 160 at [2]), where the contemnor avoided service by moving from place to place or sending unconvincing medical certificates to the court (Ronowska v Kus at [24]), or where the contemnor actively participated in the proceedings in which the alleged contempt occurred and is ably represented at the contempt proceedings (Nest Opportunities Pty Ltd v Eastern Property Alliance Pty Ltd [2020] NSWSC 1835 at [43]). There is no evidence of the defendants avoiding service. There is no evidence before the Court as to why the legal representatives did not make further attempts to effect personal service.

160. Secondly, the Statement of Charge was filed two months after the Notice of Motion. That pt 55 r 7 of the Supreme Court Rules is an important procedural requirement is clear by the fact that it is a local rule that prevails over the operation of the UCPR to the extent of any inconsistency. Its purpose appears to me to be to underscore the seriousness of contempt, in that a person is entitled to know what charge they are required to answer to in one solemn document that informs them of both the fact they are being charged and the particulars of that charge. Filing the Statement of Charge and Notice of Motion separately was considered a procedural default “of substance” by Barrett J in McDonnell v Novello where that delay was only six days apart. The delay is two months long here. As noted earlier, the plaintiff made no submissions in relation to why the requirements of this rule ought to have been dispensed with, notwithstanding submissions were invited by me on this topic.

161. Thirdly, the plaintiff, who is legally represented, regrettably did not draw these procedural defaults to my attention. No applications for substituted service nor a dispensation of the personal service requirements of pt 55 r 9 of the Supreme Court Rules were made during the course of the hearing, and I was instead asked to make orders where two critical procedural requirements had not been fulfilled. It was only in the course of preparing these reasons for judgment that the plaintiff’s non-compliance with the rules had became apparent. As Stewart J recently observed, it is trite that lawyers have a paramount or overriding duty to the court and the administration of justice which prevails over their duties to advance their clients’ interests, and they have an obligation to assist the court to proceed upon a proper understanding of the law, which unquestionably includes an obligation to take care that proper procedure is followed (see Cayzer v Phoslock *Environmental Technologies Ltd (*Opt Out and Registration Notice) [2026] FCA 438 at [19]-[20]). This is a serious default considering the particular importance of due process in contempt proceedings (McDonnell v Novello at [35]), and the fact that the defendant is unrepresented and has not appeared.

162. Fourthly, I note there are deficiencies and inconsistencies about the charges in the documents served on the first defendant. The Statement of Charge does not mention the Further Order Extension which is contained in the Motion. Both the Statement of Charge and Motion refer to the first extension of the order made on 13 February 2025, which orders were not notified to the first defendant until after the date the order was required to be complied with, which would rather obviously make a charge concerning the first extension order inappropriate.

163. For these reasons, I consider there to be fundamental problems with the application before me such that the requirements of the Supreme Court Rules should not be disregarded.

164. It is not clear whether, in considering whether to dispense with the personal service requirements under s 14 of the CPA, in the context of contempt proceedings, the “circumstances of the case” can include the circumstances of the wider proceedings, as opposed to just the circumstances of the contempt application before the Court. If the wider circumstances could be taken into account, these further circumstances, outlined below, also suggest that dispensing with the requirements of the rules of court would not be appropriate. I stress that these further considerations are merely additive, in that I have reached my decision not to dispense with the personal service requirements of pt 55 r 9 based on the issues with the contempt application itself outlined in the preceding paragraphs.

165. Firstly, the plaintiff has consistently delayed in complying with Court orders to notify the defendants of orders made. This was particularly true with regard to the first extension order made on 13 February 2025 and the Further Order. Consequently, the plaintiff has appeared before the Court 15 times which likely has resulted in the expenditure of costs which appear to be not proportional to the value of the dispute in this case.

166. Secondly, the plaintiff involved the second defendant in the contempt application, and yet during the course of the hearing counsel for the plaintiff acknowledged that contempt would be “difficult for my client to establish” given the limited evidence against the second defendant. Given the seriousness of charging someone with contempt, it is highly unsatisfactory that the second defendant was charged in circumstances where it was readily acknowledged there is a paucity of evidence against her. The power of the Court to punish for contempt ought only to be invoked where there is a proper basis to make such a grave allegation. Once again, this has likely resulted in the expenditure of costs which are not proportional to the value of the dispute in this case.

167. Thirdly, the plaintiff initially acted contrary to usual procedure by not originally bifurcating the liability and penalty aspects of the proceedings and, in their original submissions, pressing the Court to impose penalties. It is not clear why this matter of fairness was not offered to the defendants without prompting from the Court.

168. Consequently, I am satisfied that this is not a proper case such that the procedural requirements of compliance with pt 55 rs 7 and 9 of the Supreme Court Rules should be dispensed with.

Is the contemnor clearly informed of the charge against him?

169. In case I am required to consider it, I am also not satisfied that the purpose of personal service has been met in that the first defendant is clearly informed of the charge against him.

170. The majority of the plaintiff’s submissions centred on why the requirement for personal service should be dispensed with given the unique facts of this case. The plaintiff submitted the following in PWS Procedure:

“8.4. The above procedural history makes it clear that:

(a) First, the First Defendant has been clearly informed of the charge against him since 27 August 2025;

(b) Second, the First Defendant has had a reasonable opportunity since 27 August 2025 to place before the Court an explanation by way of evidence and/or submissions that he may wish the Court to consider, but has elected not to do so.

(c) Third, the First Defendant has used the email address regularly by sending responsive emails and accordingly the Court can be satisfied that the allegations made against him have been received (i.e. he has actual notice of them).

(d) Fourth, the purpose of Part 55 of the Supreme Court Rules has been satisfied on the facts of this case, notwithstanding the absence of personal service.

…

9. In short, the unique facts of this case provide a proper basis to dispense with the requirements of personal service as the has been clearly informed of the charge against him and been afforded a reasonable opportunity of responding to it. Rather than responding to the allegations, the First Defendant has elected to send at various times email communications that are dismissive and, in some instances, plainly offensive.”

171. This issue is admittedly more finely balanced. On the one hand, I accept the submissions above from the plaintiff that the first defendant was informed of the charge against him, had a reasonable opportunity to be able to respond and uses his email address regularly. I accept this considering the extensive evidence of his continued responses to a majority of the emails sent. Nevertheless, I am not satisfied that the first defendant was “clearly informed” of the charge against him for two main reasons.

172. Firstly, due to the default of the personal service requirements, I am not satisfied the severity of the charge against the first defendant was properly conveyed. In the context of contempt, personal service requirements are important to convey the seriousness of an offence as they ensure someone is aware that a legal process with potentially serious consequences has been commenced against them. The only evidence presented that the charges against the first defendant were in fact brought to his attention are his responses to emails. Considering the quantity of emails between the plaintiff’s solicitors and the defendants, with personal service not having been effected, there is nothing to distinguish the nature and import of the emails which contained the Motion and the Statement of Charge from any others. It cannot be assumed that documents delivered to the first defendants address were ever brought to his attention. As such, it cannot be assumed that the first defendant was aware that the email containing the Motion and supporting affidavit, and the email containing the Statement of Charge, were more serious and significant than any of the other emails.

173. Secondly, the email correspondence to the first defendant was not clear. As discussed, the Statement of Charge not being filed with the Notice of Motion means there is not one clear, solemn document that outlines both the fact the first defendant is being charged and the particulars of that charge. Instead, the evidence before me is of piecemeal email correspondence detailing several orders and extensions. I believe this failure is particularly significant considering the defendant is not legally represented, as I am of the view it could be highly confusing for someone not legally represented to have to piece together the relevant information.

Conclusion

174. Consequently, considering these proceedings as a whole and the issues set out above, I do not consider this is an appropriate case to dispense with the procedural requirements of pt 55 of the Supreme Court Rules.

175. Accordingly, prayer 1 of Motion, being the prayer for contempt of the first defendant, must be dismissed.

Issue 2: Whether the Court is satisfied the first defendant is guilty of civil contempt of Court

176. Issue 2 only arose if I was prepared to deal with the contempt application on its merits. I have concluded that the contempt application should be dismissed. Issue 2 therefore does not arise. I also do not consider it appropriate to address the contempt application on its merits in the alternative.

Issue 3: Should the Court exercise its discretion to grant an injunction in the terms sought by the plaintiff?

177. The factual background sets out the circumstances of the making of the Review on 15 December 2024 ([60] above), as well as the taking down on the Review soon after 18 December 2024 ([68] above).

178. There is no evidence before the Court that the first defendant has made any other publications in relation to the plaintiff.

179. There is no evidence that the first defendant has threatened to post any further publications in relation to the plaintiff. I do not consider the swearing and aggressive language from the first defendant, notwithstanding he is still criticising the plaintiff, to contain any suggestion the first defendant is likely to be making or have made any further publications about the plaintiff.

180. Given the posting of the Review and its taking down occurred nearly 16 months ago, the Court can only conclude that the posting of the Review was a one-off publication by the first defendant in relation to the plaintiff.

181. One may speculate that the commencement of the litigation by the plaintiff on 18 December 2024 was disincentive enough for the first defendant not to undertake any more publications, however there is no evidence for this before the Court, one way or the other.

182. In relation to the specific facts of this matter, in order for the Court to grant the injunctive relief as sought by the plaintiff, the Court must, among other things, be satisfied that there is some threat or risk that the plaintiff proposes to publish anything disparaging in relation to the plaintiff on social media or other platforms, or that that has already occurred.

183. I do not accept that there is anything in the evidence before the Court that could satisfy me that there is an extant threat or risk of the first defendant publishing anything in relation to the plaintiff. For that reason, I do not propose to make an order for injunctive relief as sought.

Costs

184. As is uncontroversial, s 98(1) of the Civil Procedure Act 2005 (NSW) gives the Court a broad discretion with respect to costs, though that discretion is to be exercised judicially: Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218 (Stern and Ball JJA, Griffiths AJA); Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 at [136] (McColl JA, Sackville AJA and Adamson J agreeing).

185. The plaintiff has been wholly unsuccessful in obtaining the relief it sought by Notice of Motion.

186. The defendants have made no submissions or appearances throughout this proceeding and have been unrepresented for its entirety.

187. In those circumstances, I consider the appropriate course is to make no order in relation to costs, with the intention that each party is to bear their own costs.

ORDERS

188. For the reasons set out above, I make the following orders:

189. Dismiss the plaintiff’s Notice of Motion filed on 27 August 2025.

190. No order as to costs with the intent the parties are to bear their own costs.

191. List the matter before the Registrar in Equity on 4 June 2026.

**********