Tate v Duncan-Strelec

JUDGMENT 1The plaintiff, Thomas Richard Tate, seeks an order that the defendant, Amanda Duncan-Strelec, be found guilty of contempt of Court and punished accordingly. The alleged contempt is the publication of material on the Internet by the defendant to exact a reprisal against the plaintiff for successfully defending proceedings brought by the defendant and others and determined in this Court in 2010.

2Both parties have over the years been involved in local government. The plaintiff is presently the Mayor of the Gold Coast in Queensland. The defendant served on the Albury local council including two terms as Mayor of Albury. The defendant was the plaintiff's campaign manager in an earlier unsuccessful attempt to be elected as Mayor of the Gold Coast. The parties were apparently good friends until they decided to embark upon a commercial project together. That project was to develop land at Lavington in New South Wales in a joint venture between the plaintiff and his wife, the defendant and her husband and the companies that each couple controlled, Wamego Pty Ltd (Wamego) in the case of the plaintiff and his wife and Dunlec Pty Ltd (Dunlec) in the case of the defendant and her husband. Things went awry and the relationship soured very badly. The Lavington Proceedings 3In 2006 the defendant, her husband, David Strelec, and Dunlec, as plaintiffs, sued the plaintiff, his wife Ruth Tate, and Wamego as defendants in connection with the joint venture (the Lavington proceedings). For reasons that are unnecessary to detail, those proceedings were not heard until June/July 2010. 4The defendant, as the first plaintiff, appeared unrepresented and conducted the case on behalf of the plaintiffs. The plaintiff, his wife and Wamego were represented by solicitors and counsel. The defendant had been represented by solicitors and for some interlocutory applications, by counsel. However they ceased to act prior to trial. The defendant subsequently made a complaint to the Legal Services Commissioner in respect of the conduct of her solicitor in the preparation of the matter for hearing. I mention this only because these communications were part of the material published on the Internet, the subject of the charges of contempt. 5The defendant, her husband and Dunlec, as plaintiffs in the Lavington proceedings, made claims for damages against the plaintiff, his wife and Wamego, as defendants, for breach of contract. The contract that was relied upon was said to have arisen in June 2006 after the original agreement to develop the Lavington land had terminated in February 2006 when the defendant and her husband could not provide their share of finance for the joint venture to purchase the subject land that was adjacent to land owned by Dunlec. Accordingly, the plaintiff and his wife funded the purchase of the land that was then registered in Wamego's name (the Wamego land). 6In May/June 2006 the defendant and her husband were able to obtain finance and approached the plaintiff with a proposal that they might go forward with the planned development on the basis that they make a substantial payment. The plaintiff suggested that they make a payment as a proportion of the project costs to that date. They made that payment in two amounts being $205,815 and $2,500 on 20 June 2006 and claimed that at that time the plaintiff promised to issue shares in Wamego to them. The plaintiff denied that this was the arrangement. He claimed that he informed the defendant and her husband that he would "have a think about what to do" and that if he decided to sell the land he would give them their money back. He also claimed that he said that if he decided to develop the land then they would develop it together. 7There was no issue in the Lavington proceedings that the plaintiff had informed the defendant's husband prior to these payments being made in June 2006 that he had someone who was interested in buying the Lavington land. 8In July 2006 the defendant's husband had an unsatisfactory conversation with the plaintiff in which he suggested that the plaintiff should pay him (and the defendant) an amount of $390,000 to buy into Dunlec. It was in this conversation (accepted by the defendant's husband as having occurred) that the plaintiff said that he was going to repay the $205,815 and $2,500 that had been paid in June 2006. The plaintiff sent those two cheques to the defendant and her husband on 25 July 2006. 9During interlocutory proceedings prior to the trial in the Lavington proceedings, the defendant became aware of a Share Sale Agreement dated 29 August 2006 between the plaintiff and his wife as vendors, and Christopher David Lind-Mitchell, as purchaser (the Lind-Mitchell agreement). On its face, that document suggested that the plaintiff had entered into an agreement for the sale of the shares in Wamego to the purchaser, the consideration for which was $1.67 million in cash and a number of Forestry Bonds. The completion date was thirty days from 29 August 2006. The defendant also became aware of a second Share Sale Agreement between the plaintiff and his wife and Francis Kovacevic made on 30 November 2006. It was in the same terms as the Lind-Mitchell agreement except that the completion date was 15 December 2006. 10In January 2007, consent orders were made pursuant to which Wamego was restrained from, inter alia, selling or otherwise dealing with the Wamego land and the plaintiff and his wife were restrained from dealing with the issued capital in Wamego. These restraints did not prevent the plaintiff and his wife from completing the Share Sale Agreement with Mr Kovacevic on the conditions that: the plaintiff and his wife pay $247,000 into trust to be held by the solicitors for the parties pending further order or the direction of the parties; and the plaintiff and his wife were to ensure that the Forestry Bonds be held by their solicitor on the same basis. 11The Share Sale Agreement with Mr Kovacevic was completed on 30 November 2007. At this time the plaintiff ceased to be a director of Wamego and Mr Kovacevic became the sole director and secretary. Wamego granted a mortgage over the Wamego land and a fixed and floating charge over the company's assets to the Bank of Queensland on 30 November 2007 and a further mortgage and a fixed and floating charge to Titan Project Developments Pty Limited on 13 February 2008. 12On 24 October 2008 on the application of the defendant, her husband and Dunlec, the Court held that they were entitled to a declaration that by granting these mortgages and charges to the Bank of Queensland and Titan Projects, Wamego was in contempt of Court. However a formal declaration to that effect was not made: Duncan-Strelec v Tate [2008] NSWSC 1145; Duncan-Strelec v Tate [2009] NSWSC 112. 13During the hearing of the Lavington proceedings in June 2010 the defendant sought to call Mr Lind-Mitchell to establish evidence of the Lind-Mitchell agreement. The trial judge disallowed this evidence. The defendant was also attempting to serve a subpoena on Mr Kovacevic who she claimed was avoiding service. At this time the defendant placed an advertisement in the Gold Coast Bulletin seeking assistance in locating Mr Kovacevic. The defendant was contacted by a number of people who read the advertisement and although some information was provided to her, the defendant was unable to effect service of a subpoena on him. The information that was provided by the respondents to the advertisement would surface later. 14The defendant's attempts to lead evidence from Mr Lind-Mitchell and to subpoena Mr Kovacevic were apparently motivated by a desire to prove that the plaintiff had been dealing with these gentlemen at the same time that he was negotiating with the defendant, her husband and Dunlec in respect of the Wamego land. This was apparently to ground a contention that the plaintiff's version of the events and conversations should not be accepted and that the payments that they made were to be treated as part of the purchase price of the Wamego land or their share of the joint venture investment for which they were entitled to be issued with shares in Wamego. 15The defendant clearly faced some evidentiary problems in the Lavington proceedings including contemporaneous emails between the parties. In particular on 31 August 2006 the defendant's husband wrote an email to the plaintiff in which he suggested that the only way they could continue with the project was "one of three ways". The first was that the defendant and her husband buy into Wamego; the second was they all go their "separate ways"; and the third was that the Family Trust of the defendant and her husband buy into Wamego at an agreed fair and equitable price. The defendant's husband asked the plaintiff to advise "which of the three options you prefer so we can make the arrangements accordingly". On 4 September 2006, the plaintiff replied "We'll go with option 2". 16The Lavington proceedings were dismissed with costs on 6 August 2010: Duncan-Strelec v Tate [2010] NSWSC 872. There was no appeal from the judgment and orders of the trial judge. The ASIC Complaint 17On about 9 March 2010, prior to the hearing of the Lavington proceedings, the defendant had filed a complaint with the Australian Securities and Investments Commission (ASIC) against Wamego and the plaintiff (the Complaint). The Complaint included a claim that the plaintiff had "deliberately set out to defraud my husband and I of our rightful 50% ownership of the company Wamego". It also included allegations that the plaintiff had returned the deposit that the defendant and her husband had paid the plaintiff in respect of the property development at Lavington "repudiating the partnership". 18On 14 September 2010 the defendant wrote again to ASIC referring to various companies that had been named in the Forestry Bonds and claiming that the plaintiff and Mr Kovacevic had set up "an elaborate Ponzi type scheme" using Wamego, the "false" Forestry Bonds and shares as well as property to "steal and defraud innocent people out of their property and valuable art works". The defendant requested that ASIC urgently investigate the authenticity of the Forestry Bonds claiming that she had been informed that they were false and that the plaintiff was "still trading with them". The defendant also complained about the plaintiff's alleged conduct in respect of an entity known as the Wattling Galleries, originally owned by Mr Wattling, with various other allegations relating to persons including Mr Glen Bottrill and Mr Fernando da Costa. These men had responded to the defendant's advertisement in the newspaper during her quest to find Mr Kovacevic and each had provided the defendant with information about their rather unsatisfactory experiences with Mr Kovacevic, which the defendant passed on to ASIC as part of the Complaint. 19On 4 November 2010 ASIC wrote to the defendant advising that the concerns that she had expressed in relation to the partnership with the plaintiff and the shares in Wamego was a commercial dispute relating to a private agreement that fell outside the scope of laws that ASIC administered. ASIC also noted that the matter had been considered by the Supreme Court and it was inappropriate for it to intervene. ASIC advised the defendant that the Court was the "proper arbiter of the rights of the parties in a commercial dispute relating to a private agreement". In respect of the other allegations made by the defendant, ASIC advised that it was not satisfied that the Forestry Bonds were captured within the definition of "financial product" under the Corporations Act 2001 (Cth) (the Act) and that there was no evidence that the Forestry Bonds constituted a Ponzi scheme and the ability to redeem them into cash appeared to be a "private matter". The defendant was advised to contact her legal adviser to determine what, if any, avenues might be open to her. ASIC also advised that if the defendant believed that she had been defrauded, she may wish to raise her concerns with the state police. 20ASIC also addressed some of the concerns raised about Mr Kovacevic and advised that it was not satisfied that he had breached the Act. ASIC advised that it did not intend to take any further action in relation to the issues raised in the Complaint. The defendant's bankruptcy 21On 11 November 2011 the defendants', costs of the Lavington proceedings were assessed at $301,943.10. Judgment was entered in the amount of $305,513.10 on 16 December 2011. Dunlec Pty Ltd was wound up on 23 April 2012. Sequestration orders were made against the estates of the defendant and her husband on 7 June 2012. The Website 22On 17 June 2013 the plaintiff became aware of allegedly defamatory and contemptuous material published on a website with the domain name www.tomtatescam.com (the Website). It will be necessary to refer to some of the material published on the Website later in this judgment. 23On 4 July 2013 the plaintiff's solicitors, Hickey Lawyers (Hickeys), wrote to the defendant referring to the Website and suggesting that its content was "obviously published" by the defendant. Hickeys made a demand that the defendant remove the defamatory material from the Website and to replace it with a retraction, an apology and a statement that the statements and the imputations within the material on the Website were false. The defendant's letter - 4 July 2013 24The defendant responded by letter dated 4 July 2013 in which she dealt with each of the statements and the imputations alleged by Hickeys to have been conveyed by the Website. The defendant responded by stating, "I stand by those statements". In respect of a claim made by Hickeys that the defendant had threatened to publish further defamatory material, the defendant responded as follows: Yes, I advised that I intended to publish more evidence of your client's misdeeds. I finally have. It just took me longer as I had to save what little money I have left to do so. 25After referring to Hickeys' statement that the defendant's conduct would not be tolerated, the defendant wrote: My response is this: Tell your client to suck it up and take it like a man. He has had this coming for a long time. You will note that I have not asked for anything on the blog, in spite of the fact that I could have made money from it. There is a reason for this. I published the blog to protect people from the likes of your client. All the information on the blog can be supported with hard evidence. There have been too many victims of your client and his mate with the two names already. Too many lives ruined due to their greed. I am determined to warn people about these kind of men, ruled by greed, with no mercy shown for their victims. You, Scott, and your firm, need to take a long close look at your own conduct in this matter. You had my solicitor prevented from acting for David and I in our case against Tate, citing conflict of interest, because he acted for Tate and ourselves in the partnership agreement, yet you knowingly and willingly acted for Tate, Lind-Mitchell and Kovacevic (Kendt), in the sale of Wamego. 26In response to Hickeys' request for the defendant to provide a written undertaking to cease and desist from making any further defamatory comments about the plaintiff, the defendant wrote as follows: My answer is no, no and no. Sue me. I look forward to crossing swords with your client in court. This time I am better prepared as I have been expecting this. Indeed I welcome it. I don't care if I go to jail, your client has ensured that I have lost everything I worked all my life for anyway. By the way, you can't be sued for telling the truth. Again, I urge you to look closely at the conduct of your firm, as the fight has only just begun, and you might be caught in the crossfire. Jim Wilson's email - 5 July 2013 27On 5 July 2013 Hickeys received an email from a person identified as "Jim Wilson" in the following terms: As a practising lawyer, I don't think I have ever seen any greater example of stupidity by a law firm purporting to represent the best interests of their client. Talk about leading with your chin!! All you have done in writing your letter to Duncan Strelec is conveniently allow her to crystallise all the issues in her three page letter which now proudly sits on page one of her website!! You obviously don't understand how the viral world works! Need a strategic viral media consultant?! 28It would appear that Mr Wilson was providing either informal or formal advice to the defendant from time to time. In fact, on 12 March 2014 James Christopher Wilson of Wilson Haynes Solicitors, a Division of Beacon Business Directions Pty Ltd, filed an Appearance for the defendant in the proceedings referred to below. A Notice of Intention to file a Notice of Ceasing to Act was filed on 10 June 2014 and a Notice of Ceasing to Act was filed on 17 June 2014. The defendant's letter - 6 July 2013 29On 6 July 2013 the defendant wrote to Hickeys by email advising that after further consideration she had decided to put a "counter offer" to the plaintiff. The defendant advised that the plaintiff had until close of business on Monday 8 July 2013 to respond "or the offer is no longer on the table". The letter attached to the email and dated 6 July 2013 included the following: Further to my emailed letter to you on the 4 July 2013, I would like you to put the following proposal to your client. I will arrange to have the web site removed on the following conditions:

1. That Tate use his considerable influence on Kovacevic to ensure that he pays Glenn Bottrill for the money he loaned Kovacevic to clear his debts to enable him to borrow the money to buy Wamego. As Tate sent emails to Bottrill ensuring him that Kovacevic was legitimate and offered Bottrill paintings as security, the onus is on Tate to follow through. Failing that, that Tate pay restitutuin (sic) to Bottrill at an amount agreed to between parties.
2. That your client, Tom Tate, will ensure that either he, or his business associate of some 15 years, Francis Kovacevic (also known by the name Frank Kendt) make full restitution in the manner outlined below:
3. That Tate and/or Kovacevic make full restitution to Bruce Wattling for the money he lost when Kovacevic temporarily assumed the ownership of Wattling Galleries. That includes all cash and eftpos takings. It also includes interest on that money at 7%. Further, that all artwork removed from the Gallery during that period either be returned or paid for in full.
4. That Tate and/or Kovacevic return, or pay the value of, all the paintings removed from Fernando da Costa's home. Further, that full restitution be paid to Fernando for all the money he outlayed when trying to recover his artworks.
5. That the two boats, and other goods, that Kovacevic took from Terrence Ryan either be returned or paid for at an agreed value between the parties.
6. That Tate finish the refurbishment of the Surfers Paradise Bowls Club as he promised the members he would, and allow them to re-occupy their premises under the conditions he offered them from the outset.
7. That both Tate and Kovacevic recover any worthless Forestry Bonds they have traded with and pay the bearers the initial outlay plus interest at 7% p.a.
8. That Tate publicly declare which Companies he has either a direct or indirect interest or stake in, in order to maintain full probity in undertaking his role as Mayor of the Gold Coast. If and when, and only when, your client has followed through with all of the above, will I be prepared to take down the web site. I am aware that your client is still in regular touch with Kovacevic and that they are still on a very friendly basis. I am also aware that Kovacevic is putting about that he is suing Tate for eight million dollars. I do not believe this for one moment. It is merely another tactic on Kovacevic's behalf to keep the police from knocking on his door. The search of the court records quickly dispeled (sic) that myth. As you are no doubt aware, the web site has had 30,000 hits in only two weeks and I haven't finished putting up all the evidence yet. It is amazing how willing people have been to share their knowledge regarding Tate and Kovacevic/Kendt. You will note that I have not asked for anything for myself. That was never the intention when setting up my web site. I set it up to extract some justice for the elderly victims who lost so much. I can fight for myself. They can't. You have until close of business Monday 8 July, to respond to this offer, after which time I will be posting this letter to the web and following up on a number of other issues relevant to Tate and Kovacevic that are awaiting my attention. 30In an article in The Border Mail on 6 July 2013 reporting matters about the Website, the following statements were attributed to the defendant: "I've done this out of desperation"; "It was the only avenue left to me"; "I've done this with the help of a lot of people"; "I've told them (Mr Tate's representatives) I would rather go to jail than take the blog down"; and "I am staggered to think it has had so many hits". Further publication on the Website 31The letter from Hickeys dated 4 July 2013 and the defendant's response of that date were published as an "Update" on the Website on 4 July 2013. The defendant's letter to Hickeys of 6 July 2013 was published on the Website as an "Update" on 8 July 2013. 32On 8 July 2013 Hickeys wrote to Stylex Networks Inc, the host of the Website, requesting that company to take immediate action to block access to the Website. That letter was published as an "Update" on the Website on 16 July 2013. By email on the same day they refused. On 18 July 2013 a further "Update" was posted on the Website that included the statement, "We are in the process of setting up a Fighting Fund in our continuing fight for justice. Please click here to read more information about this". The linked page entitled "Fighting Fund" included the following: Since first publishing this blog, we have had over 50,000 hits. Due to the support and encouragement we have received we have decided to establish a fund so Amanda can continue the fight for justice. She has already lodged a submission to the Senate enquiry into ASIC and is currently awaiting a reply. She intends to pursue the following avenues; 1. The Financial Services Ombudsman in relation to the conduct of the Bank of Queensland as well as the worthless forestry bonds being traded by Kovacevic and Tate. 2. The Federal Police in regard to the production and trade of the bonds, as well as the conduct of Kovacevic in using a false name and birth date on ASIC documents. 3. The Crime and Misconduct Commission in Queensland in relation to whether Tom Tate is a fit and proper person to be in public office. 4. The equivalent in Queensland of the Legal Services Commission of NSW in relation to Hickey lawyers conflict of interest. 5. The Queensland Police in regard to the theft of artworks from Fernando da Costa and Watling Galleries. To do this we are appealing to the public for donations. All money donated will be placed in a trust fund with every cent accounted for. We will post regular updates on this blog regarding the progress of our continued fight for justice. Donations will also be used to seek legal advice on whether we have grounds to launch a class action against any of the above in the Supreme Court. Donations can either be anonymous or publicly acknowledged on our blog. That will be a choice the donors can make. The Earlier Proceedings 33On 9 August 2013, the plaintiff filed a Summons and Statement of Charge in proceedings 2013/242125 (the earlier proceedings). The Summons and the Statement of Charge were served personally on the defendant on 15 August 2013. The relief claimed an order that the defendant take all necessary steps to cause the entirety of the Website to be deleted and an order that the defendant immediately take all steps to deregister the domain name. It also included a claim for an order permanently restraining the defendant from communicating any threat to the plaintiff of publication or disclosure of documents used in the Lavington proceedings and/or any request for payment or other benefit in return for not causing such publication or making such disclosure. 34Orders were sought that the defendant be found guilty of contempt for: (a) using certain documents obtained in the Lavington proceedings for the collateral and ulterior purpose of exacting a reprisal against the plaintiff; (b) registering the domain name and publishing material on the Website in a manner calculated to exact a reprisal against the plaintiff for successfully defending the Lavington proceedings; and (c) registering the domain name and publishing material on the Website with the aim of lowering the authority of the Court as a whole and that of its judges in a manner calculated to impair public confidence in the Court and its judicial determinations. Finally an order was sought that the defendant be convicted of contempt and made liable for punishment. 35The Statement of Charge alleged that the defendant used the documents obtained in the Lavington proceedings and published the material on the Website to exact reprisal against the plaintiff by exposing him to hatred, ridicule and contempt and by the improper scheme of demanding money and other benefits to desist from the publication of the material on the Website. 36The earlier proceedings were first listed before the Court on 20 August 2013. The defendant did not appear before the Court on that occasion. On 20 August 2013 Hickeys wrote to the defendant advising her that the matter had been before the Court that day and that it was noted there was no appearance on the defendant's behalf. Hickeys advised that the matter had been stood over until 3 September 2013 and that any Motion for summary judgment would be returnable on that day. That letter included the following: If you fail to appear at the hearing on 3 September 2013, the Court may make orders, including an order that you pay our client's costs, and the matter may be determined in your absence. 37On 21 August 2013 the defendant wrote to Hickeys by email enclosing a letter in response to their letter of 20 August 2013. That letter included the following: I will be attaching a copy of this letter to my proposed letter to the Registrar, in which I will be challenging whether you have any legal grounds to be attempting to have me charged with defamation and contempt of court. I will be asking for the charges to be dismissed. Failing that, I will be asking for the case to be heard here in Albury, due to extenuating circumstances. Your summons was served on the 15 August 2013, gave me precious little time to respond, let alone make arrangements to appear on my own behalf by the required date. Your client would be aware of this more than anyone as it was due to his actions that I am in the position of being a bankrupt. If you recall, when your client undertook proceedings against us for bankruptcy, we offered to pay him off over a two year period, which, at the time we had the assets to be able to do, but he refused as his intent at the time was to cause as much financial hardship for us as possible. He successfully pursued the bankruptcy, not only against our company, Dunlec, but also against my husband and myself personally, when he knew that all our money was tied up in the company. That, to me, shows malice. Indeed, I believe his intention was to destroy us financially, even though he knew that doing so would mean he would get nothing, rather than accept our offer and recover his money. As a result, I have no money to be able to afford legal representation, let alone the travel and accommodation costs of attending court in Sydney at such short notice. Again your client would have been well aware of this. 38After referring to other matters the defendant advised that she would endeavour to find someone to represent her but if that proved to be unsuccessful she would be "forced to self-represent". The letter continued: In order to give you an advantage Scott, I will outline the case I intend to put before the courts. At least that way, your client will be fully aware of where I stand, not that he ever hasn't been. I am a pretty straightforward person. I need to advise you from the outset that I have no control over the Tom Tate blog. Nor do I know where it emanates from. I merely provided the information which goes to other parties to be posted in whatever form they see fit. There are probably six degrees of separation between myself and the blog by the time the information is posted. I did have some say in the early days, on the structure of the blog and how I would like to see it set up, but I found it too upsetting having to again go over all the evidence I uncovered after the court case, some of it from your own files which I was successful in obtaining under my Notice to Produce, Scott, which showed your client had deliberately set my husband and I up, so I disengaged and just provided the documentation proving the claims in my story. To the best of my limited (but thanks to your client, growing exponentially) legal knowledge, there has been neither defamation, nor contempt of court. Even if there was a case to answer on the defamation, your client has made sure I am bankrupt, so what on earth is he hoping to achieve, trying to sue me in Civil Court for defamation when he knows I am a bankrupt as he made me so? Does the term "hoisted on your own petard" ring a bell? Or does he have a more sinister motive? Is he hoping for criminal defamation? Highly unlikely he could ever achieve that, so why is he wasting the Court's time and his money trying to achieve it? There is no defamation because everything I have stated is true and the evidence to prove it is on the blog. What is he so terrified of people finding out? Further to that, on the blog I urged people to read this story and the evidence and make up their own minds. Hardly defamatory. As for the contempt of court, I will deal with the relevant paragraphs in his Summons and Statement of Charge and respond to them one by one. 39In respect of the charge that she had used documents obtained in the Lavington proceedings, the defendant claimed that they were "public documents, and as such, any member of the public [was] privy to those documents once they follow due process in accessing them". The defendant also advised that the Forestry Bonds were annexed to an affidavit of Mr da Costa in the Supreme Court in Brisbane "so there is more than one source". The defendant claimed that neither the Forestry Bonds nor Share Sale Agreement were "privileged documents". 40In respect of the claim that she had utilised an improper scheme to obtain money or benefits from the plaintiff, the defendant wrote: When I made the offer to Tate that I would endeavour to remove the blog if he arranged for either himself or his agent Kovacevic to pay restitution to the victims of their scams, it was at a time when I still had some say in what went on the blog. I made it quite clear to both you and Tate that I was after nothing for myself. Indeed, to do so, I believe, would have constituted blackmail, which would have defeated my whole purpose, not to mention my credibility, when sending documents to the blog authors. I am not in the habit of breaking the law and am well aware of the consequences should I do so. Further, I did not register the domain name, nor do I know anything about where it is based. 41As to the claim in the Statement of Charge in respect of lowering the authority of the Court, the defendant claimed that she was staggered by such a claim because it had been the plaintiff through Hickeys, who was "using the court process to try to silence me and extract revenge against me for telling the truth". The defendant claimed that the plaintiff repeatedly lied under oath during the Lavington proceedings and allowed "fake documents" to be held in trust of the Court knowing they had no currency and were illegal (a reference to the Forestry Bonds). The defendant claimed that she was looking forward to confronting the plaintiff "on the stand" and wrote: If, at the conclusion of my Barrister's cross examination, your client is proven to be telling the truth, then, and only then, will I ask whoever is responsible for publishing the blog, to remove it. 42The letter continued: In summing up Scott. It appears to me your client is scared of the truth. If, as he purports, what I have provided by way of evidence is untrue, why is he misusing the legal system to try to silence me? Even if he wins and has me charged or arrested, the publicity in doing so would bring more scrutiny down on his head than he ever imagined would be possible. He has stripped me of every asset I own, I am in ill health, both physically and psychologically, and yet he is obviously very scared of me and the information I have made public. If he has nothing to hide then he has nothing to fear. After all, when these issues were first raised before the Gold Coast Mayoral election, I was informed by the media that he was very busy telling everyone I was crazy. I now suspect that explanation no longer washes, particularly since the evidence to validate my story is there for everyone to see, and his actions are coming to the attention of others who might actually be able to expose him for what he is. 43On 27 August 2013 the plaintiff filed a Notice of Motion for summary judgment that was made returnable on 3 September 2013. The defendant did not appear before the Court on that occasion. On 4 September 2013 the plaintiff filed a Notice of Motion seeking default judgment. Both Notices of Motion were listed for hearing before Ball J on 27 September 2013. 44The plaintiff served a Notice to Produce (filed on 27 August 2013) on the defendant on 28 August 2013 seeking documents including those showing the identity of persons to whom the defendant published or provided information; the Certificate of Domain Name Registration for the Website; and documents showing the transfer of registration of the domain name. 45On 28 August 2013 the defendant wrote to Hickeys in terms that included the following: In response to your Notice to Produce, I would like to advise you of the following: 1. I cannot provide any of the documents requested as I no longer have possession of them. Any emails, the very few that there might have been, have been deleted at the request of the people in control of the blog. All discussions in relation to my preferences for the website were restricted to phone calls which came from a blocked number. This was deliberate by the "webmasters" who wished to protect their identity. I respected that request. Any documents were sent by mail care of the Post Office to names such as John Smith and John Brown, again in order to protect identities. I had no wish to know who these persons were. Any emails I sent were sent to the "contact us" email address on the web-site and then immediately deleted, again at the request of the "webmasters". I used the internet services at public libraries to do so, again at the request of those in control of the blog. Therefore I have no documents in my possession. ... 4. I have no idea where the domain emanates from, let alone in whose name it is. I had originally intended setting up my own website when I could afford to, in order to warn people of your client's conduct, which is where the reference to "my website" came from, however other people had already done it before I got the opportunity. However, given that I did provide them with some of, but not all, of the information on the site, I suppose in some ways the use of "my website" was a Freudian slip of the tongue. It is not my website and never has been. I wish it was but I do not have the technical skills to set up a website of this caliber (sic). 5. I have no idea what you are referring to as I have no involvement whatsoever in either the establishment of a domain name or the registration thereof. The only information I have is a copy of what is currently on the blog and if you require any of that I am sure you can print it off for yourself and much faster than I would be able to. 46On 8 September 2013 the defendant sent an email to "tomtatescam.com Contact" with a copy to Hickeys. That email was addressed to the "web masters". It forwarded a copy of the emails that the defendant received from Hickeys and a claim that they had refused to accept her assertions that she had no control over the Website. She advised that Hickeys were demanding that she remove the Website. The email continued: I am aware from my previous reading of the website that much of the documentation you received was not provided by me, indeed, I was completely unaware of the existence of many of those documents until they were published on your site. ... I believe that Tate is determined to have me sent to prison and does not really care about what is on the website. I have sent you these documents from Hickey's so you are aware of the gravity of what is happening. If I were to request you to remove the website, would you be prepared to do so? You advised me verbally weeks ago that this site has gone viral and mentioned something about an archive site as well as mirror sites that you had set up to ensure that this site could not be removed. Could you please explain this in detail and cc a copy of your explanation to Hickey's as they refuse to believe anything I say. That could also be because they have a compulsive liar as a client and therefore judge everyone by Tate's standards. 47After a further Notice to Produce was served on the defendant she wrote to Hickeys on 10 September 2013 by email in terms that included the following: In serving your Notice to Produce to Court, I believe you are going on what I have heard referred to in court as a "fishing expedition", in the hope that my ignorance of the law will trap me into revealing something that may assist you in your endeavours to prove that I control the Tom Tate website. Sadly, you are to be disappointed as there is only one email recipient for and that is the actual email address itself. I do not know who the actual name behind it is. I have repeatedly told you that I have no control over the website and domain name. If you choose to not believe me, that is your prerogative, however, it if you wish to continue to pursue this course it will be at your client's expense as you cannot get blood from a stone, as the old saying goes. ... I recall also advising you that I have deleted all and any emails in relation to anything to do with the aforementioned website, and will continue to do so. Take that as you will. If your client is determined to continue to try to bully, harass and intimidate me for publishing the truth substantiated by hard evidence, using his money and the law to try to frighten and force me into submission, then he has chosen the wrong person to target. Having said that, I take no joy in the prospect of what might be ahead of me. However, I am prepared to follow through with due process and hope that justice will prevail. A good friend, who is a Barrister, told me only last month that justice and law is not always the same thing. I hope in this case he is wrong. I don't know what your client is hoping to achieve with this whole sorry procedure, apart from depleting his bank account and forcing me into some form of abject capitulation, but whatever his motive is, it does not come from an ethical stand point. I have made a decision from this point on to ignore all and any further correspondence from you. I may as well be hung for a sheep as a lamb, and while I have a great deal of respect for the law, I have very little for the legal system, having been failed by it on repeated occasions. I can only hope that if I am found guilty of contempt of court, I receive the same punishment my former solicitor received, only she was found guilty of deliberately misleading the court which I believe is far more serious than anything I have done, and for that, all she received was a slap on the wrist. I guess we will soon see if all people are equal in the eyes of the law. Last Update of Website 48The Website was further updated in September 2013 in the following manner: 25th September 2013 update: Tom Tate in his usual manner is once again attempting to silence the freedom of information with his deep pockets by launching legal proceedings against Amanda. Mr. Tate is attempting to take action against Amanda for the information she has provided to this website. Mr.Tate, why are you so mad? Is it because the information is accurate, truthful, backed up with facts and just do damning you want it "removed"? Tate is once again trying to keep this as "quiet as possible" and "out of the spotlight" by instigating proceedings in the New South Wales Supreme Court. Tate in the past has never been shy against launching legal proceedings in the Brisbane Magistrate's Court; so why the sudden change in venue now? Is it because the court case in NSW would not get the same media/attention coverage as Queensland? Why are you so determined to have removed from the site all and any information about the Fake Forestry Bonds? It is because they are the smoking gun that will bring you undone? Amanda has in a recent email to this website, sent Notices, Affidavits, Motions and legal threats received from Hickey Lawyers to this website (available for viewing/download further below). We believe the public should be aware of what Tate is trying to do, his true character (if you haven't gathered already) and the reason he is desperately trying to "remove" this website. One thing Mr. Tate is still learning is that once information is freely available on the Internet; it will always be available on the Internet. Some of the allegations Mr.Tate's lawyers make in his "legal documents" are very entertaining. Firstly and foremost; nothing has been removed from this website at any point in time. When we post something we ensure it is factual, accurate and once we are satisfied only then do we permanently make it available on this website. Secondly, is an email account; not an (sic) contact group, not a distribution list or local address book. This one was extremely entertaining - you fail to understand basic email concepts; We hope the thousands you pay your lawyers is really worth it. ... Finally your assumptions that Amanda is the author of this website are totally wrong. She has contributed information and that is the extent of her involvement with this website and domain. Mr. Tate, your direct and indirect actions are the sole reason this website even exists. You know that Amanda cannot afford to fight against you as you are the one who sent her bankrupt - yet you continue your malicious and calculated pursuit of her, for what? This website and its contents has been mirrored and archived copies are safe with several people already. There is nothing for you to gain in doing so; if anything - people ask the question "Why spend all this time and resources in removing something that you so strongly deny?". I think we all know the answer to that question. We have contacted local media in New South Wales and Queensland regarding the court hearing to ensure people are not "kept in the dark". Orders - 27 September 2013 49The plaintiff's Motions for summary judgment and default judgment were heard and determined by Ball J on 27 September 2013: Tate v Duncan-Strelec [2013] NSWSC 1446. The defendant did not appear at this hearing. The plaintiff conceded that he could not press for an order that the defendant be found guilty of contempt in her absence. He accepted that it would not be appropriate for the Court to grant summary judgment or judgment in default in relation to his claim insofar as it was based on an allegation of defamation where that claim had not been pleaded. In the circumstances, interlocutory relief in the nature of an injunction pending final hearing of the proceedings was sought. 50Ball J was satisfied that the plaintiff had established a serious issue to be tried in respect of both defamation and whether the defendant had committed a contempt of exacting a reprisal against the plaintiff because of his success in the Lavington proceedings: [15]. Accordingly the injunctions that were granted were in respect of the claims for damages for defamation and also the claims that the defendant was guilty of contempt. His Honour made orders as sought by the plaintiff. Those orders were entered on 27 September 2013. A sealed copy of the Orders was issued in the following terms: TERM This matter is listed for Directions (Equity Registrar) on 8 October 2013 9:00 AM before the Supreme Court - Civil at Supreme Court Sydney. Estimated duration: 5 minutes ORDER/DIRECTION 1. HH gives leave to plaintiff to file in court affidavit of Scott David Eustace sworn 27 September 2013. 2. HH makes orders in terms of short minutes of order initialled and dated todays date. Short Minutes of order: Upon the plaintiff, by his senior counsel, giving the usual undertaking as to damages, the court orders that: 1. Until further order of the court, the defendant immediately take all necessary steps to cause publication of the webpages comprising the website located at the domain to cease. 2. Until further order of the court, the defendant refrain from further publishing the copy of the forestry bond identified by certificate number 002, which the plaintiff's legal representatives, Hickey Lawyers, sent by facsimile to the defendants former legal representatives, Kemp Strang, on 15 February 2008) (the relevant copy comprising page 3 of the facsimile). The court further orders that: 3. The plaintiff file and serve a statement of claim on or before 4 October 2013. 4. Service on the defendant of documents in these proceedings may be effected by sending a copy of such documents to the defendant's email address, namely: (provided). 5. The matter be stood over for further directions at 9.00am on 8 Ocyober (sic) 2013. 6. The parties have liberty to apply on 3 days notice. 7. Costs be reserved. 3. These orders may be taken out forthwith. SEAL AND Signature S Stanbridge.L.S. If this document was issued by means of the Electronic Case Management System (ECM), pursuant to the Uniform Civil Procedure Rules (UCPR) 3.7, this document has taken to have been signed if the person's name is printed where his or her signature would otherwise appear. Capacity Chief Clerk Date 27 September 2013 Service of the Orders 51On 27 September 2013 at 5:39pm Hickeys sent an email to the defendant in the following terms "Please find attached a copy of the order made by the Court today". The attachment was the order extracted above. On 27 September 2013 at 5:50pm Hickeys sent a further email to the defendant in the following terms: Further to my e-mail sent a few minutes ago, I should point out that among other things, the orders require you, pending further order of the Court: (a) to take all necessary steps to ensure that the publication of the website ceases: order 1; (b) not to publish the forestry bond: order 2. You must comply with orders 1 and 2. Your failure to do so will constitute a contempt of court punishable by imprisonment. A further copy of the Order is attached. 52On 28 September 2013 at 9:00am the defendant wrote by email to Hickeys in terms that included the following: I will send a request to the owners of the blog through their email address, cc'd to you, attaching all information you sent me, asking them to comply with orders one and two of the court. Whether they agree is up to them. I have repeatedly told you that I neither own, nor have control over the blog, except in a collective or community sense, along with all other victims and disenfranchised ratepayers living on the Gold Coast. Attempts to stop publication 53On 30 September 2013 Hickeys wrote to MaxiiWeb Hosting Administrator Solutions (MaxiiWeb), the domain name registrant, enclosing a copy of the sealed orders of the Court dated 27 September 2013 requesting that they cease publication of the Website. Hickeys also requested that MaxiiWeb immediately provide all information in their possession that was capable of identifying the person or entity that had caused the domain to be registered. Website suspended 54On 30 September 2013 MaxiiWeb wrote to Hickeys in terms that included the following: We have at your request suspended the account in question and I will provide you all details we have on file. The account was registered through a Web Designer who by the looks of things is located overseas. Please confirm you have received this email and that you can no longer access the website . We certainly do not condone or allow misuse or abuse on any of our systems. Please do not hesitate to contact me if you need anything further. 55On 30 September 2013 Hickeys responded to MaxiiWeb advising that the Website appeared as "this account has been suspended". Hickeys thanked MaxiiWeb for their prompt action and advised that they looked forward to receiving any further details MaxiiWeb had on file. 56On 1 October 2013 at 11:06am (after MaxiiWeb had suspended the Website) the defendant sent an email to "TomTate Scam". A copy of the email was sent to Hickeys and to Ball J's associate. The email was in the following terms: To the author of the Tom Tate Scam website, As you will see from the email and attached orders below, I have been directed by the court to follow orders 1 and 2 below. Could I please request that you remove the offending bond and also take down your website as per the orders of the court. I am aware that I do not own or maintain the web site, however, it appears my constant assertion to that effect have not been believed by the Court. Therefore I can only comply with the Orders by requesting you to see fit to remove the material and the web site. Please advise me what you intend to do. Website reactivated and Mirror Websites 57On 3 October 2013 Hickeys wrote again to MaxiiWeb in terms that included the following: It appears that the account is no longer suspended and all content published on the Website has been accessible since at least yesterday. Can you please confirm why the Website has been reactivated. If you were requested to reactivate the account and/or Website, please provide us with a copy of the relevant correspondence. 58Hickeys also requested copies of access logs in respect of the account for the period from 26 September 2013 and the email address and password required to access the account together with the Registry Key/Authorisation Code for the domain name. Hickeys also advised that the same account holder may have created "mirror sites", including , and requested information that was capable of identifying the person or entity that had caused the mirror site to be registered with MaxiiWeb. 59On 3 October 2013 MaxiiWeb advised that there were two additional domain names associated to "Tom Tate Scam" being and , and that they were configured to mirror the contents of the Website. MaxiiWeb also advised that the Website had been moved to another provider and that it had sent an email to "" advising that the account was suspended due to a legal request with which MaxiiWeb had complied. MaxiiWeb also provided further information which identified the company YoHOST.ORG Hosting Solutions Privacy Protection in Panama as the entity to which the domain had been transferred. It advised as follows: All our customers can manage their domains directly and it seems they have transferred the domain in question to another registrar and a separate hosting provider. I have changed the domain access password for the above 2 domains - the only issue is that they legally own the domains so I am not sure what court order you need to get this changed? I obviously am happy to (as you have seen) oblige to (sic) any legal requests the court orders - I just don't know how "domain disputes/ownerships" would work in this situation? ... What I also note is that the 2 mirror sites are Parked Domains so they just mirror the contents of the primary domain . The reason why they are showing as suspended is because they are still pointing to our servers. We are happy to change the DNS zone file so they do not resolve/load at all. Please advise. 60On 3 October 2013 Hickeys wrote to YoHOST advising that they understood the Website had been transferred to it as the new host/provider. Hickeys advised YoHOST of the orders made by Ball J on 27 September 2013 and asked that YoHOST immediately cease publication of the Website. Hickeys also sought all information capable of identifying the person or entity that had caused the domain name/website to be transferred to YoHOST and/or to engage their hosting services. 61On 9 October 2013 the defendant sent an email to "TomTate Scam" with copies to Hickeys and Ball J's associate. That email was in the following terms: To whom it may concern, I recently wrote to you, attaching orders of the court, asking you to comply with those orders by removing the offending bond and taking down the website. I noticed last week that the bond had been removed and the website suspended, however, I noticed that the website had re-appeared the next day. I also note that you did not respond to my email. As there is a further appearance in court due on Friday, could you please advise me of what has happened with the website before that date? Could you also copy your response to the above two persons so they are aware of what has happened. 62On 9 October 2013 the plaintiff filed a Notice of Motion and served it by email on the defendant in which it sought that the proceedings be set down for final hearing and that the defendant be ordered to attend to answer a charge of contempt. That Motion was listed on 18 October 2013. Statement of Claim 63On 11 October 2013 the plaintiff filed a Statement of Claim which expanded the alleged contemptuous conduct to include the publication of the mirror domains; wrongfully and wilfully destroying documents relevant to a fact in issue in the proceedings; and failing to comply with the orders of the Court made on 27 September 2013. 64The Statement of Claim included the pleaded case in defamation including the various statements published in the material on the Website and elsewhere, with numerous imputations said to arise from the publication. 65In respect of the contempt case, the Statement of Claim referred to the Orders made by Ball J on 27 September 2013 and alleged that the defendant continued her publication to exact a reprisal against the defendant for him having succeeded in the Lavington proceedings. It included allegations that the defendant had published the Forestry Bond and the affidavits in the contempt proceedings on the Website and claims of scandalising the Court. It was also alleged that the defendant had destroyed documents and breached the orders of the Court in respect of the removal of the Website. It was alleged that the defendant had engaged in conduct "constituting a contumacious contempt". 66On 17 October 2013 the defendant wrote to the associate to Ball J with a copy to Hickeys. That email included an apology for not being able to appear in Court and the following: I have repeatedly stated that I do not own the website; I have requested of the web owners, by email, as per the orders of Ball J, that the offending bond be removed and the site taken down; and I am more than happy to swear to this under oath. 67On 18 October 2013 Hickeys wrote to the defendant advising that the Notice of Motion had been heard in Court that day and that the matter had been set down for final hearing on 29 November 2013 before White J. Hickeys also advised that any Defence had to be filed by 1 November 2013 and that an order had been made that the defendant was to appear before White J to answer the charge of contempt. 68Hickeys did not receive a response from YoHOST and wrote again on 15 November 2013 seeking a response to their email of 3 October 2013. On the same day YoHOST responded in terms that included the following: Regarding the domain name in question. We provide domain name registration and privacy protection services. Hosting for this domain is provided by . Regarding content removal, please, contact this hosting provider. Court order requests to remove the material but does not give the permission to suspend the domain what we can do from our side. So, you need to get in contact with . Regarding contact details, we do not have more information than you have and besides First Amendment ensures free anonymous speech. But again even if court requests the details we have only email address that you have as well. 69On 18 November 2013 Hickeys sought clarification from YoHOST as to the email it was referring to in its email of 15 November 2013. YoHOST replied to say it was the address appearing on the 'Contact Us' page of the Website. Hickeys then made contact with Panama Server (Panama) via what has been referred to as a "Ticket" in which it requested Panama to immediately provide all information in its possession or under its control that was capable of identifying the person or entity that had caused the domain name/website to be transferred to Panama and/or engaged Panama's hosting services. In that "Ticket" Hickeys advised Panama of the orders made by the Court on 27 September 2013 and provided a copy attached to the "Ticket". On 18 November 2013 a response was received: Hi, Thanks for your report. We, will investigate and take corrective actions. 70On 21 November 2013 Hickeys wrote to Panama requesting provision of any information/contact details that it had in relation to the person or entity that engaged its hosting services in respect of the Website. It is apparent there was no response to Hickeys' request and no further steps have been taken by Hickeys to identify that information or contact details. Cases separated 71When the matter was listed before White J on 29 November 2013 the plaintiff was represented by Mr BR McClintock SC leading Ms GR Rubagotti and the defendant appeared unrepresented. His Honour concluded that the contempt claims should be separated from the defamation claims and granted the plaintiff leave to file a Notice of Discontinuance in respect of the allegations of contempt in the Statement of Claim. The plaintiff was also granted leave to file a fresh Summons and Statement of Charge in respect of those claims and the matter was listed for final hearing on 26 March 2014 with an estimate of two to three days. The remaining matters in the Statement of Claim relating to the claims for defamation were transferred to the Common Law Division and have been managed separately. White J also ordered that the plaintiff's affidavit evidence filed and served in the earlier proceedings could be relied upon in the present proceedings without the need for further service. These proceedings 72On 5 December 2013 the plaintiff filed the fresh Summons and Statement of Charge. The Statement of Charge makes seven charges against the defendant. The following is a summary of the Charges that will be considered in more detail later. 73Charge 1: The first charge is that since at least 4 July 2013 the defendant has caused the Website to be published in a manner calculated to exact a reprisal against the plaintiff for successfully defending the Lavington proceedings and having obtained a costs order in his favour (the Website). 74Charge 2: The second charge is that from at least 4 July 2013 to about 2 October 2013 the defendant caused a website located at to be published in a manner calculated to exact a reprisal against the plaintiff for successfully defending the Lavington proceedings and having obtained a costs order in his favour (the 1st mirror website). 75Charge 3: The third charge is that from at least 4 July 2013 to about 2 October 2013 the defendant caused the website located at to be published in a manner calculated to exact a reprisal against the plaintiff for successfully defending the Lavington proceedings and having obtained a costs order in his favour (the 2nd mirror website). 76Charge 4: The fourth charge is that from at least 4 July 2013 to about 27 September 2013 the defendant used documents or information obtained from the plaintiff in court proceedings for a collateral or ulterior purpose and thus in a manner not reasonably necessary for the proper conduct of the proceedings on behalf of the defendant, namely, publication of documents on the websites referred to in Charges 1, 2 and 3 for the purpose of exacting a reprisal against the plaintiff (the misuse of documents). 77Charge 5: The fifth charge is that since at least 4 July 2013 the defendant has caused the Website, and between at least 4 July 2013 and about 2 October 2013 the defendant caused the websites referred to in Charges 2 and 3, to be published with the aim of lowering the authority of the Court as a whole or that of its Judges and thus in a manner calculated to impair public confidence in the Court and its judicial determinations (scandalising the Court). 78Charge 6: The sixth charge is that since at least 10 September 2013, the defendant has wrongfully and wilfully destroyed documents relevant to a fact in issue in the proceedings (the destruction of documents). 79Charge 7: The seventh charge is that since 27 September 2013, the defendant has failed to comply with the Orders made by the Court on 27 September 2013 restraining the defendant's publication of the Website (failure to comply with Court Order). The Hearing 80On the plaintiff's application, over the defendant's objection, the hearing of the matter on 26 March 2014 was adjourned for hearing for 3 days commencing on 14 July 2014. On 6 March 2014 an order was made that the defendant appear on 14 July 2014 to answer the charges in the Statement of Charge. 81The defendant did not appear on 14 July 2014. Mr Lange, of counsel, appeared for the defendant on a limited basis to seek an adjournment of the proceedings. For reasons given on that day the application was refused. The proceedings continued on 15 to 17 July 2014. Mr BR McClintock SC, leading Ms GR Rubagotti, of counsel, appeared for the plaintiff on 14 to 17 July 2014. The defendant appeared unrepresented on 15 to 17 July 2014. 82The plaintiff relied upon his affidavit sworn on 7 August 2013 and the affidavits of his solicitor from Hickeys, Scott David Eustace, sworn on 27 August 2013, 4 September 2013, 26 September 2013, 28 November 2013, 11 July 2014 and 16 July 2014. The plaintiff also tendered a hard copy of the full Website and a CD of the Website as at 17 July 2014 (Ex E). 83The defendant cross-examined the plaintiff and Mr Eustace. That cross-examination was in part focused on establishing that the plaintiff's relationship with Mr Kovacevic was closer than he had admitted previously; that the Forestry Bonds were worthless; and that the plaintiff had traded in the Forestry Bonds. This evidence when considered in the light of the contents of the Website does not impact on the findings I have made below. 84The defendant denied the Charges but did not give evidence and did not call any witnesses. Nor did she tender any documentary or other evidence. Submissions were made and judgment was reserved on 17 July 2014. The Website at the date of the hearing 85The Website Title Page has the words "TOM TATE AND HIS MATE$ Francis Kovacevic (AKA - Frank Kendt)" over a blurred photograph of an individual with an overlay of a spider's web in which there is embedded three photographs, one of the plaintiff and two identical photographs of the same person with the names Kovacevic under one and Kendt under the other. There are two black spiders with red backs crawling over those photographs with the words "oh what a tangled web we weave!". 86At the top of the Title Page there are boxes entitled: Home; Latest Updates; Worthless Forestry Bonds; ASIC; Supreme Court Transcript; Legal Services Commission; Surfers Paradise Bowls Club; Fighting Fund; Contact Us. 87As at 14 to 17 July 2014, the hearing dates, the Website included the Summons and Statement of Charge, a copy of the defendant's letter of 21 August 2013 to Hickeys; the Notices of Motion dated 27 August 2013 and 4 September 2013; Mr Eustace's Affidavits of 28 August 2013 and 4 September 2013. These affidavits had not been deployed in the proceedings at the time they were published on the Website. At the date of the trial of these proceedings those affidavits have been deployed in the hearing. 88The various links to pages on the Website included a page entitled "The story of Amanda" consisting of a Foreword and seven chapters together with what was described as "Supporting Evidence". It included a photograph of the defendant in her mayoral robes; a copy of an article from the Border Mail on 12 November 2005 with a photograph of the plaintiff, the defendant and her husband with the headline "$970,000 land deal promises ... 100 new homes"; a photocopy of the Forestry Bond certificate number 005; the Lind-Mitchell agreement; the Kovacevic Share Sale Agreement; various corporate and real property searches; a copy of the ASIC Complaint and annexures; and the transcript of the Lavington proceedings. 89The Foreword to the story of Amanda includes the following: This is a true story. It is a story about an ordinary couple who worked hard all their married lives to build up a nest egg for their retirement and hopefully leave something for their children, and the two men who could only be described as professional conmen who deliberately and with pre-meditation stole everything the couple had worked so hard for, leaving them bankrupt. It is the story of a couple whose only fault was that they trusted the wrong people, and, when they realised they had been conned, relied on the legal system to protect them. On their journey for justice, they came across more victims of these conmen (Glenn, Bruce, Fernando, Terrence) many left worse off than they were, most of the victims too old, tired or poor, to fight back. Some of the victims were also driven into bankruptcy. All of them losing many thousands of dollars, one of them, more than a few million. The story serves as a salutory (sic) warning to everyone, that, while these two men continue to operate with impunity, flouting the law and getting away with it, there will be more victims. There probably already are, and hopefully, if they read it, this story will give those victims the courage to come forward and speak out. It is the story of a man named Thomas Richard Tate, currently the Mayor of the Gold Coast City Council and his "business" partner and front-man, Francis Kovacevic, also known by the name of Frank Kendt, who was used by Tate to do his dirty work, allowing Tate to keep his hands clean. It is also a story of how money speaks all languages, how it can buy some people off, buy others out of trouble or even keep them out of jail. It is the story of the failure of the law and government authorities to do their job and protect the innocent. It is the story that is so complex and convoluted with so many different parts to it, that it took a long time for me to finally join the dots, and as I did, I uncovered more and more victims of these conmen on my way, and the story became even more complex as each victim came forward. It is a story of stolen land, paintings and artwork, false documents, forestry bonds and unit trusts, not to mention false names and birth certificates, incompetent and questionable lawyers and a bank that is up to their neck in this whole sorry mess, and has a lot to answer for, but probably never will. Due to the actions of these two men and their compliant accomplices, my husband and I are now bankrupt, sent that way by Tate and his mate, Frank. However, thankfully we still have freedom of speech and I have used my freedom of speech to tell my story. It is the only weapon I have left to continue my fight for justice. It is a sad indictment on our legal system that it has had to come to this. What happened to my husband and I could just as easily have happened to any of you reading this story and could still be happening to people now, particularly while these men continue to remain unexposed. I ask you to read this story with an open mind. Please persevere, complex and confusing as it may seem, it will all make sense in the end and should leave you asking many questions, just as it did us. Then you can make your own judgement. 90Chapters 1 and 2 contain the background to the defendant's relationship with the plaintiff and includes the help that she provided the plaintiff in his attempts to become Mayor at an earlier time. Chapter 3 includes the background to the purchase of the land at Lavington by Wamego and the claims that formed part of the Lavington proceedings. Chapter 4 deals with the events after the parties' relationship broke down and the commencement of the Lavington proceedings. Chapter 5 deals with the lead up to the legal proceedings and the claims against Wamego for contempt and the difficulties that the defendant experienced with her then solicitors. 91Chapter 6 deals with the course of the proceedings and the Forestry Bonds and includes the following: When I raised these issues with Justice Nicholas during the case, advising him that Kovacevic was avoiding the process server, and asking if there was some way the court could force Kovacevic to appear according to what I considered was a legal document requesting him to do so, the Judge said there were options open to me but that it was up to me to find out what they were. I wondered to myself why bother paying all that money to lodge and serve a subpoena if they held no weight with the court? And why wouldn't the Judge give me the advice I needed to ensure we were given a fair trial. ... Prior to the case beginning I approached Tate's defence Counsel and advised them both (Tate had two Barristers representing him) of our son's accident in case I needed to leave for Thailand. On the second day of the case I was so unwell from lack of sleep and worry that I advised Justice Nicholas about my son and his accident. He just shrugged and moved on with the trial. Fortunately Harry was a tough kid and was recovering quickly and we decided to wait until the trial was over before I headed over to Thailand. I knew from the outset that we would lose the case but I gave it my best shot and we were in court for three and a half days at the conclusion of which, on the 1st July, Justice Nicholas reserved his decision. During my cross examination of Tate he claimed that the two cheques David and I gave him in June 2006, for the deposit on Wamego, and the next month's loan instalment, were not a deposit, but were a loan to him from us. I kept pushing the issue as to why David and I, who were in a precarious financial position, would be lending Tate, a millionaire, just over two hundred thousand dollars, but Tate's defence complained I was badgering him and the Judge would not let me continue. Even when Tate couldn't answer why we had paid with two cheques if it was a loan, and even more to the point, why he had returned our money in two separate cheques, with no interest added, if it was supposed to be a loan, the Judge made me move on and wouldn't let me continue that line of questioning. ... Again, after successful intervention by Tate's defence, the Judge ordered me to "move on" and wouldn't let me continue. ... I received a phone call from the Judge's Associate to tell me that I had to be in Sydney on the 6th August for the Judge's decision to be handed down. I dreaded what I knew was coming but appeared on the day, trying hard to put on a brave face. David insisted on accompanying me even though I tried to persuade him not to. I knew the Judge had another case straight after ours and I knew from experience that if he had made a judgement in our case in such a short period of time, it would certainly not be in our favour, given the complexities of our case. I was expecting the worse. I was not to be disappointed. In a nutshell, we lost the case. My late affidavits with all the new evidence I had uncovered exposing Tate's scam, attached to them, were dismissed. We were ordered to pay all Tate's costs. The Judge order (sic) the $247,000 from the sale of Wamego to Kovacevic, being held in trust be released to Tate, as well as the six fake Forestry Bonds. Further the Judge was scathing in his criticism of David, portraying him as untruthful. What was worse is that he portrayed Tate as the victim in the whole sorry mess, which was particularly galling. Even though we expected the worse, it didn't make the news anymore palatable and we were devastated. I just couldn't let it go, particularly after what the Judge had said about David, so I immediately investigated the possibility of an appeal, even though we had no money left to be able to pay for one. 92Chapter 7 deals with the aftermath of the trial and the consideration of the appeal process. That Chapter includes the following: Then we got serious and by the time the day was done, it became clear that if we could find grounds for Appeal, and there were a couple of possibilities, not the least being the failure of the Judge to allow an adjournment when he heard of my son's accident, it would all depend on what the Appellate Court decided. 93Chapter 7 continues with the defendant's decision not to appeal, makes reference to her medical conditions and includes the following: Now, a year later, and probably a few hundred thousand dollars in costs and interest, they are finally going to sell everything out from under us, the bank will take what we owe them, Tate will be lucky to get some of what we owe him, my brother will be lucky to get any of what we still owe him and David and I will be left with nothing. What price justice? For us? Bankrupt and penniless in our late fifties. ... I am not looking for pity, nor do I expect or want any, that is not what I am made of. What I want is justice and fair play, and if by telling our story it reaches the ears of the people who do have the authority to act, and are prepared to do so, then it has been worth exposing my soul, warts and all. I am telling our story in an effort to expose these criminals and the system that allows them to operate undetected and unaccountable, and I am sure, as day follows night, that we are just two of the many victims still out there, some, like us, probably bankrupt due to the actions of these two men. 94There was also a link to a page entitled "Glenn" which included: Amanda was contacted by Glenn in response to her advertisement in the Gold Coast Bulletin. He wanted to put his story to the Court, in order to expose both Tate and Kovacevic so he swore this affidavit which unfortunately was dismissed by the Judge before it could be presented as evidence. He finally, through this blog, has a chance to be heard. Please read his affidavit as this says it all. 95The link to what is described as "Supporting Evidence" is the affidavit of Glenn Bottrill sworn on 28 June 2010. The front page of the affidavit is not included so it is not possible to determine the proceedings to which affidavit relates. That affidavit includes claims that Mr Bottrill held a mortgage over the land owned by Wamego at Lavington; that he loaned $300,000 to Mr Kovacevic in September 2007 for the purposes of paying off Mr Kovacevic's debts and for a land valuation of the Lavington property; that these monies were paid so that the Bank of Queensland would settle the Share Sale Agreement between the plaintiff and Mr Kovacevic; that as part payment of this debt Mr Bottrill was to receive three paintings from Mr Kovacevic who had purchased them from the plaintiff; that Mr Kovacevic was going to develop the Lavington land with the plaintiff; that Mr Kovacevic told him that the plaintiff asked him to purchase the land from him due to a dispute that he was having with the "ex-mayor of Albury"; that he had not received the paintings; that he had a judgment against Mr Kovacevic for approximately $500,000; and that he was also engaged in proceedings against the Bank of Queensland. 96There was also a link to a page entitled "Bruce" that included the following: This is a copy of the letter Bruce sent to Amanda after she had tracked him down through one of the company searches she did on Kovacevic. Bruce has never recovered the money Kovacevic stole nor the artworks removed from the Gallery during Kovacevic's short stint as supposed future owner before Kovacevic pulled out of the sale and walked away, leaving Bruce with substantial losses. Click here to read Bruce's story in his own words. 97There is reference to the "Supporting Evidence" of a letter from Bruce Wattling. That letter is entitled "Some notes on the Sale of Tudor Crown Pty Ltd trading as Wattling Galleries to Mr Frank Kendt Wamego Pty Ltd". That letter includes claims of deceit, fraud, "scam and swindle" in relation to Mr Kovacevic. 98There is also a link to the page entitled "Fernando" which includes the following: Fernando's story is perhaps the saddest of all. Bruce introduced Kovacevic to Fernando. His following affidavit, which he sent a copy of to Amanda tells the whole story. Tate and the Bank of Queensland are in this sordid mess up to their necks. The Picasso is still in Kovacevic's possession, at one stage being held in storage of the vault at the Southport Branch of the Bank of Queensland. Fernando has lost not only his paintings, but he has no money left to try to recover them through Civil action. Please click here to view Fernando's story. 99There is then reference to the "Supporting Evidence", Fernando da Costa's affidavit. That affidavit was in 2008 Supreme Court of Queensland proceedings in which Mr da Costa and his wife were named as applicants and Tudor Crown Pty Ltd and Mr Kovacevic were named as the respondents. It is apparent that that affidavit was in support of an application for injunctive relief and it is not clear what the outcome of that application may have been. However the claims made by Mr da Costa relate to a purported sale of a number of artworks including a Picasso and a Warhol to Tudor Crown for $3.178 million with a deposit of $300,000 in cash. It is alleged that Mr Kovacevic provided a cheque that bounced and that subsequently the plaintiff came to Mr da Costa's house with Mr Kovacevic and provided a cheque in the amount of $50,000 in exchange for which he took the Warhol as security. 100As I have said there is no proper detail of what actually occurred in those proceedings other than the extract on the "Fernando" title page in which it is alleged that he never recovered the money from Mr Kovacevic with the inference that he also lost the artworks. 101There is also a page entitled "Terrence" (Mr Ryan) which included the following: Terrence contacted Amanda as recently as last year asking if she knew of a Frank Kendt. This is a copy of his statement to police that he sent to Amanda last week, asking her to post it on the blog. 102The statement includes allegations of a commercial arrangement between the person "Terrence" and Mr Kovacevic including claims that Mr Kovacevic received a motorboat without payment and refused to return it prompting Terrence to go to the police. There is no mention of the plaintiff. However there is reference to the Lavington land and the fact that the boat was in part payment for Terrence obtaining an interest in that land some time in 2007. The version of events in the statement span the years 2007 to 2012. 103The Surfers Paradise Bowls Club section of the Website includes a number of articles in relation to the local government elections and the development of the Bowls Club and environs. The question of the plaintiff's involvement in various tenders is discussed with the plaintiff's denials of involvement being reported. There are also articles reporting on the plaintiff's purchase of the Bowls Club with a business partner for $1.43 million (and its greens for $770,000) when it is alleged the property was worth $9 million or $11 million. There is a copy of an article in the Gold Coast Bulletin of 14 April 2012 entitled "Special Investigation: Secret property deals, club collapse, bowlers locked out ... even Hollywood couldn't script this". There is a photograph of the plaintiff's head on the body of a bowler, next to his business partner, as well as the then Mayor Ron Clarke and a "Meter Maid" standing on a bowling green with the heading "Crackerjack". The header to the article includes: Tom Tate is one of the Gold Coast's richest men, successfully leading the city's chamber of commerce. But backroom politics in a bowls club property deal has left him with bitter enemies. 104There is also a copy of an article in the Gold Coast Bulletin of 15 June 2013 with headlines: "Tate stands to make millions from highrise; Mayor's Tower Bid: Mayor eyeing land deal: Tate company to build tower". The article refers to the company part-owned by the plaintiff negotiating to buy council land for "a $300 million apartment tower on the old Surfers Paradise Bowls Club site". The title page to this section of the website also includes: And that is how Tom Tate operates. Thank God the manager of the Lavington Sports Club saw right through him and negotiated to sell the club to the Penrith Panthers, instead of Tom, otherwise they would have suffered the same fate as the Surfers Paradise Bowls Club. Exacting a reprisal 105The plaintiff contends that the publication of the material on the Website by the defendant is a contempt of Court because it was published to exact a reprisal on him because he successfully defended the Lavington proceedings. The law of contempt has been applied in circumstances where there have been reprisals against witnesses for giving evidence in pending proceedings or even after the conclusion of proceedings. It has also been applied in respect of reprisals against parties to pending litigation. However the position is more complex in the case of a reprisal against a party where there are no pending proceedings. Clarkson v The Mandarin Club Limited (1998) 90 FCR 354 is the case upon which the plaintiff relies in support of his application. 106Mr Clarkson, as a member of the Mandarin Club, brought proceedings against it claiming that he had been unjustifiably passed over in his temporary absence from the Club when he was entitled to a prize drawn in a gambling game. Those proceedings were settled very promptly pursuant to a Deed of Release and a Notice of Discontinuance. Another member of the Club in the same position as the applicant was also the subject of the settlement and the Deed of Release. The Deed of Release required that its terms not be disclosed. 107Soon after the conclusion of the proceedings Mr Clarkson was involved in events at the Club in purported reliance upon which the Club suspended him from membership. Mr Clarkson brought proceedings against the Club alleging that it had suspended him, not for his involvement in these events, but by way of reprisal for him having brought the proceedings against the Club that were settled. 108Burchett J defined the issue before the Court in that case (at 357) as whether, in the exercise of its contempt power, the "protection" the Courts had given to witnesses from attempts to deter them from giving evidence or to punish them for having done so should be extended to parties. 109In discussing the application of the law of contempt to witnesses, his Honour referred (at 357-358) to Lord Denning MR's judgment in Attorney-General v Butterworth [1963] 1 QB 696. That was a case in which a union delegate gave evidence (as a witness) in the Restrictive Practices Court, and after the conclusion of the proceedings resolutions were passed purporting to deprive him of his offices in the union. Burchett J referred (at 357-358) in particular to the following passages of Lord Denning's judgment at 719 and 723: It may be that there is no authority to be found in the books, but if this be so, all I can say is that the sooner we make one the better. For there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimise him afterwards for having given it. How can we expect a witness to give his evidence freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who dislike the evidence he has given? Let us accept that he has honestly given his evidence. Is he to be liable to be dismissed from his employment, or to be expelled from his trade union, or to be deprived of his office, or to be sent to Coventry, simply because of that evidence which he has given? I decline to believe that the law of England permits him to be so treated. If this sort of thing could be done in a single case with impunity, the news of it would soon get round. Witnesses in other cases would be unwilling to come forward to give evidence, or, if they did come forward, they would hesitate to speak the truth, for fear of the consequences... I have no hesitation in declaring that the victimisation of a witness is a contempt of court, whether done whilst the proceedings are still pending or after they have finished. ... But when the act is done with mixed motives, as indeed the acts here were done, what is the position? If it is done with the predominant motive of punishing a witness, there can be no doubt that it is a contempt of court. But even though it is not the predominant motive, yet nevertheless if it is an actuating motive influencing the step taken, it is, in my judgment, a contempt of court. I do not think the court is able to, or should, enter into a nice assessment of the weight of the various motives which, mixed together, result in the victimisation of a witness. If one of the purposes actuating the step is the purpose of punishment, then it is a contempt of court in everyone so actuated. 110In Attorney-General v Butterworth (which has been cited with approval in Australia in a number of cases including James v Robinson (1963) 109 CLR 593 at 602 and 615 and X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630) Lord Denning referred to a number of cases and said at 721: In most of the cases which I have mentioned the witness had finished his evidence but the case itself was not concluded at the time when the step was taken against him. Nevertheless the principle was laid down, as I have shown, in terms wide enough to cover cases where the proceedings were concluded. And I must say that I can see no sense in limiting this species of contempt to punishment inflicted on a witness while the case is still going in. Victimisation is as great an interference with justice when it is done after a witness gets home as before he gets there. 111In the same case Lord Donovan referred to the administration of justice as "a continuing thing" and said at 725: It is not bounded by the day's cases. It has a future as well as a present. And if somebody pollutes the stream today so that tomorrow's litigant will find it poisoned, does he appeal to the court in vain? 112Lord Reid recently remarked on the "continuing process" of the administration of justice by reference to Lord Donovan's statement in A v British Broadcasting Corporation [2014] UKSC 25; [2014] 2 WLR 1243 at [38]. 113Moore v Clerk of Assize, Bristol [1972] 1 All ER 58 was a case in which a witness was victimised after she had given evidence but before the proceedings had concluded. Lord Denning, in the mode of self-quotation, said at 59: The first question is whether this was a contempt. The law has been settled by A-G v Butterworth. The court will always preserve the freedom and integrity of witnesses and not allow them to be intimidated in any way, either before the trial, pending it or after it. Here it was after the girl had given evidence. It is a contempt of court to assault a witness after he has given evidence: it is also a contempt of court to threaten him or put him in fear, if it is done so as to punish him for what he has said. 114The ramifications of the decision in Attorney-General v Butterworth were identified in R v Socialist Worker Printers and Publishers Ltd [1974] 3 WLR 801; [1975] 1 All ER 142. Lord Widgery CJ, with whom Milmo and Ackner JJ agreed, referred to Lord Denning's analysis as follows at 147: It is very important, I think, to appreciate what a big step is taken by that case. To try and influence a witness before he gives his evidence, to try and stop him from giving evidence, or to try and make him alter the evidence he gives is clearly contempt of court, and indeed if done by more that two or more people together it can well be an indictable conspiracy. But in that case the proceedings were over before the victimisation began. The case before the Restrictive Practices Court was finished and nothing which was done by the witness thereafter could effect the position, yet Lord Denning MR accepts with such gusto, one might almost say, the proposition that a contempt of court is found. He puts it, I think, on two grounds. In the first ground he is saying in effect that it is so obvious that the courts must stop this, that is to say victimisation after the event, that it must be contempt of court. It is a clear and deliberate affront to the authority of the court. That, I think, is the first ground on which he puts it. But he does indicate the other ground, albeit in only a sentence or two, when he says that witnesses in other cases might be affected and induced not to come forward if they heard that the witness in the first case had been victimised in this way after having given his evidence. So much for Lord Denning MR's views on the matter. 115In Clarkson v The Mandarin Club Limited Burchett J referred to a number of cases involving intimidation and/or punishment of witnesses either before or after they had given evidence. His Honour then turned to the decision in Attorney-General v Times Newspapers Ltd [1974] AC 273 and cited Lord Reid's speech in which (at 297-298) his Lordship said that as "a general rule" where the only matter to be considered was pressure put on a litigant "fair and temperate criticism is legitimate, but anything which goes beyond that may well involve contempt of court". 116Burchett J also referred to two cases involving pressure that was brought to bear upon parties to litigation: Attorney-General v Hislop [1991] 1 QB 514 and Harkianakis v Skalkos (1997) 42 NSWLR 22. In both those cases the party affected was involved in pending litigation. In the former Nicholls LJ said that the essential vice lay in the purpose for which and the intention with which the serious allegations were made in an article in a magazine. Burchett J cited (at 361) his Lordship's statement at 531 as follows: The fact that Mr Hislop believed the allegations he made against Mrs Sutcliffe were true, and the further fact that if sued for libel he intended to plead justification as a defence, cannot justify publication of the allegations when the purpose was to put pressure on Mrs Sutcliffe and deter her from pursuing her existing action to trial. 117In the latter case Mason P (with whom Beazley JA agreed) said (at 32) that the concern of the law was to "protect from improper interference the litigant's freedom to choose whether or not to initiate, continue or discontinue legal proceedings". 118Burchett J concluded at 367: The fundamental question of fact to be determined is whether, in resolving to suspend the applicant's membership, the Board of Directors, being the mind of the company, had the intention of exacting a reprisal in respect of the applicant's proceeding in the Court against the company. On the authorities I have discussed, this need not have been the only matter actuating the decision, or even the dominant matter. But if other matters played a part in motivating the action of the company, that might be very relevant in relation to the appropriate penalty. I have come to the conclusion, beyond reasonable doubt, that a real motivating factor in the decision to suspend Mr Clarkson's membership was the desire and intention to exact a reprisal against him for bringing the proceedings which he brought in this Court against the company so shortly before he became the first person known to have been thus dealt with by the board. 119One passage of Lord Simon of Glaisdale's speech in Attorney-General v Times Newspapers Limited to which reference was not made in Clarkson v The Mandarin Club Limited but which is of some importance to the present circumstances is the following at 320-321: The litigation being concluded, the public interest in freedom of discussion becomes paramount, since there are now unremitted decisions for the public itself to make - especially as to whether the law and its institutions need modification in the light of what has happened. The only legal rider is that the discussion of concluded cases must not be made a pretence for interference with pending cases. Professional responsibility may, over and above this, self-impose some limitation on the discussion of past cases when they may be relevant to pending cases, so as to ensure individuals are not unfairly prejudiced. But the law itself must draw a line for general guidance - and it does this at the point when, in general, the balance of public interest shifts, namely, at the conclusion of a case. It is true that thereby a litigant may be affected in his conduct of litigation by the knowledge that, once the litigation is over, his conduct of it will be open to public criticism. But the law has given him full protection during the pendency of the litigation. It cannot do more without jeopardising the public's interest in matters which are of its general concern and as to which it is therefore, in a democratic society, entitled to influence the decisions, which it cannot do intelligently without information and debate. 120The question of the application of the law of contempt to parties after litigation has concluded in respect of conduct amounting to a reprisal has been the subject of Law Reform Commission Reports, to which Burchett J referred in Clarkson v The Mandarin Club Limited (at 359-360). In addition to those is the Report of the Committee on Contempt of Court (1974, Cmnd 5794) by the Right Honourable Lord Justice Phillimore and others (the Phillimore Report) which, after analysis of the decision of the Court of Appeal in Attorney-General v Times Newspapers Limited [1973] 1 QB 710, included the following at 27-28 [emphasis added]: 61. ... Finally, the force of a campaign of moral pressure, whether public or private, must depend to some degree upon the validity of the moral grounds upon which it is based, and a "fair and temperate" campaign may achieve more, by virtue of its very quality, than an unfair or intemperate one. What lent the Sunday Times campaign so much strength was the fact that in the eyes of many people justice and the administration of the law in the thalidomide case were two very different things. We think there is great force in the argument that this is a legitimate matter for public comment. 62. We are therefore clear that criticism of a litigant, whether public or private, is not something from which the law of contempt should protect him. But it is possible to envisage a situation where a person is subject to threat by another with power over him, for example an employee by an employer, a tenant by his landlord, or a worker by his trade union; or where, for example, he is threatened with physical violence or injury to his reputation. In those circumstances we think that the court should have the power to step in to protect the interests of a party who is doing no more than exercising his right to have a justiciable issue determined by the courts of his country. We therefore recommend that conduct directed against a litigant in connection with the legal proceedings in which he is concerned, which amounts to intimidation or unlawful threats to person, property or reputation should be capable of being treated as a contempt of court; but that conduct falling short of that should not be a contempt. 121In the later Law Commission Report in 1979, Criminal Law - Offences Relating to Interference with the Course of Justice (Report No 96) reference was made to the Phillimore Report with the following commentary at 70: The belief of a litigant that reprisals could be taken against him with impunity after the end of the proceedings could well inhibit him from bringing proceedings in the first place; and the fact that reprisals can be taken against a litigant with impunity could well affect the due administration of justice by deterring others from bringing proceedings in similar circumstances. 122It appears that in Clarkson v The Mandarin Club Limited Burchett J was not referred to any cases involving reprisals against parties where the litigation had concluded. 123In Williams v Lyons (1723) 8 Mod Rep 189 the litigation had concluded with a verdict for the plaintiff. The defendant then intimidated the plaintiff by making false allegations against him for the issue of a warrant in order to persuade the plaintiff to accept a lesser amount of damages than that awarded by the jury. It was held that the defendant had committed contempt. 124In Metzler v Gounod (1874) 30 LTR 264 the plaintiff, a musical agent and publisher, had successfully sued a well-known composer to recover damages for breach of an agreement. A verdict was returned for the plaintiff and the defendant had leave reserved to him to move to enter a non-suit or for a new trial or to have the verdict entered against him limited to the money counts. 125After the conclusion of the litigation and in circumstances where the defendant had not availed himself of the leave, a concert was given by the defendant and a printed statement, signed by the defendant's agent, was placed on every seat. It was headed "Why this concert is not an orchestral one" and claimed that the funds would not allow an orchestral concert because of the expense of the previous proceedings. It then commented on the trial stating that the plaintiff had never for one moment kept his agreement. It included a variety of claims that the evidence did not support. It generally gave a version of facts favourable to the defendant but at variance with the evidence. The plaintiff contended that the publication of the paper was contempt of Court. 126Keating J (with whom Brett and Denman JJ) concurred said: I think there is no ground whatever for this application ... The trial had taken place, and the plaintiff had obtained a verdict, and the defendant had leave to move for a non suit or a new trial on technical grounds. The motion may or may not be made; the time has not expired; but it does not matter whether it is made or not, nothing is now pending before the court; and even if the paper complained of should be more than a mere explanation that an orchestral concert was not given for want of funds, and the distribution of it to a limited number of a particular class of people a general publication, there is no ground for asking for the interference of the court. 127In Dallas v Ledger (1888) 52 JP 328 a libel case was tried before a jury and a verdict was found for the plaintiff. The defendant thereupon served Notice of Motion for a new trial and in the next issue of his newspaper commented adversely on the plaintiff and the jury for their finding. The plaintiff then commenced an action to commit the defendant for contempt of Court. In concluding that the application must be refused Stephen J said relevantly at 328: But when the thing is past and done it is different. The trial having taken place, different considerations are to be applied. The court has then done its work, the jury have then given their verdict, and they are given over to criticism and comment, and of these they cannot complain. Contempt of court is a different matter from libel. Contempt of court is an attempt to distort the ends of justice. 128In Kelly & Company v Pole & Ors (1895) 11 Times LR 405 Chitty J refused to find a party in contempt after proceedings were concluded. His Honour said that to allow such a motion "would be to unduly strain the doctrine of contempt" and that if any wrong had been done the applicants had their remedy by action for libel. 129Metzler v Gounod and Dallas v Ledger were cited in Robertson (ed), Oswald's Contempt of Court, Committal, Attachment, and Arrest Upon Civil Process (1910, Butterworth, 3rd ed) at [97] as authorities for the proposition that when the "cause is dead or ended, comments may be made; and the fact that a new trial has been moved for makes no difference". 130In Dunn v Bevan [1922] 1 Ch 276 the Court considered charges of contempt in respect of a publication that was issued after proceedings had concluded between members of the London branch of the National Society of Operative Printers and Assistants and the officers of that Society. The original proceedings related to the validity of a ballot in respect of a levy and a later ballot in respect of proposed alterations to the rules of the Society. Although there were charges of fraudulent misrepresentation in respect of the ballot relating to the levy, the balance of the claims sought declarations of invalidity and consequential relief in relation to the ballots. During the course of the original proceedings the allegations of fraudulent misrepresentation were withdrawn and the trial judge held that the defendants were entitled to succeed on that issue. The plaintiffs, the members of the Society, succeeded on the balance of the case in respect of the validity of the ballots and new ballots were ordered. 131When the case had concluded the General Secretary of the Society immediately issued a circular containing statements about the trial and the result of the trial. Although there were some inaccuracies within that circular, Sargant J described them as "comparatively trifling" (at 283). The plaintiffs then issued their own circular that was described as a "counterblast" which contained misrepresentations "of a rather more serious nature" (at 283). This was the alleged contempt of Court. 132Sargant J concluded that the law was "pretty well settled" and that the types of contempt: (a) of scandalising the Court; or (b) interfering with the administration of justice were "entirely out of the question" in the case before the Court. Sargant J cited Metzler v Gounod and Dallas v Ledger and said at 284 and 285: Now here, it seems to be clear that when I had given my judgment in the action, the proceedings were dead and ended; and I think from that time forward the Court ought not to trouble itself with the matter unless it is absolutely compelled to do so by reason of some contempt such as might fall within the first class of cases to which I have referred. ... It seems to me that applications for alleged contempt ought to be very carefully scrutinised, and that the Court ought not in any way to enlarge the jurisdiction or apply it to matters that are outside the well established lines. It is suggested by Mr. Rolt [counsel for the applicant] that there is a third form of contempt, not consisting either in scandalising the Court or in interfering with the course of justice; and that that form of contempt consists in the misrepresentation of the judgment of the Court and of the proceedings in Court for the purpose of injuring one of the parties. In my judgment there is not such a third class of contempt as Mr. Rolt asks me to give effect to. It seems to me that if the proceedings in a Court are ended, then, unless there is an attack on the Court itself, the mere making of statements as to the proceedings must be dealt with by way of the ordinary law of libel or slander if they are misrepresentations and go beyond what is legally permissible. 133The rationale in exercising the contempt power is the necessity to uphold and protect the effective administration of justice: Australasian Meat Industry Employees' Union & Ors v Mudginberri Station Pty Limited (1986) 161 CLR 98 at 107. The law exists "to safeguard the public interest in the due administration of justice" and "ensures that disputes are resolved by courts without any unacceptable interference with that process": Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732 (reversed on appeal but not affecting these statements: Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2005) 221 ALR 823). 134Re The Echo and Sydney Morning Herald Newspapers (1883) 4 NSWR 237 was a case in which the publishers of the newspapers, the Echo and the Sydney Morning Herald, had published a series of articles after the conclusion of a libel trial that were very critical of the trial judge's summing-up and the jury's verdict. In dealing with the application of the law of contempt to this conduct Martin CJ, Faucett and Windeyer JJ said at 250-252: It is essential to the satisfactory working of these tribunals that their decision should be accepted with respect, subject to such right of appeal as the laws may have provided. It would inevitably impair their utility if every unsuccessful litigant, should assert the right publicly to promulgate the opinion, that the law of this duly constituted tribunal was inaccurate, and to invite the public at large to support him in that proceeding. It would to a far greater degree impair that utility, if such unsuccessful litigant were not only to question the accuracy of the tribunal, but to personally disparage and vilify its members. Persons so acting are clearly guilty of treating the tribunal with contempt, and it is to repress such contempts that the law has wisely entrusted the tribunals with the power of summarily punishing those who commit them. In all well-ordered societies, the interpretation and application of the laws must be accepted from the Courts which the society itself has set up. No individual has the right to make himself the judge in his own cause, and assert that his view of the law should be accepted in preference to that of the Judge who may have decided against him. ... They [the newspapers] ... constituted themselves the judges in their own case, and sent forth on the wings of the press, which they had at their command, these broad statements of partiality and incapacity, and erroneous exposition of the law, in order to create the opinion in the public mind from one end of the country to the other that there had been a miscarriage of justice and a gross perversion of the law. 135The older English cases, to which reference is made above (except Williams v Lyons), in particular Dunn v Bevan, do not accommodate concurrency of actions in libel (or defamation) and actions for contempt where the litigation has concluded unless the conduct complained of scandalises the Court or interferes with the administration of justice. Those older cases did not consider the prospect that the conduct in question might interfere with the administration of justice "as a continuing process" or the prospect that if it were allowed to occur with impunity it may deter others from bringing or defending proceedings in the Court. This was the second ground of Lord Denning's reasoning in Attorney-General v Butterworth in relation to the victimisation of witnesses after the event. Although in R v Socialist Worker Printers and Publishers Ltd Lord Widgery CJ was apparently unimpressed with the crispness of Lord Denning's reasoning in this regard, this reasoning identified the protection of the administration of justice (making sure others were not deterred from giving evidence) as the basis for the finding in that case. 136Lord Simon's speech in Attorney-General v Times Newspapers Limited at 320-321 (referred to at [119] above) recognised that a litigant may be affected in his conduct of the litigation by the knowledge that once it is over, his conduct would be open to public criticism. Although his Lordship concluded that the law of contempt could not do more than give a litigant "full protection during the pendency of litigation" he did not consider the effect on the administration of justice if prospective litigants were deterred from submitting themselves to the processes of the Court for fear of reprisals for so submitting themselves. A distinction should be drawn between justified public criticism and measured debate and a personal attack on a litigant by way of reprisal because the litigant was successful in the litigation. 137In Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 it was alleged that after Young CJ in Eq had delivered his decision "and as punishment for the applicant pursuing its remedies before this court" the unsuccessful parties had caused the controller of the defendant to be excommunicated within the Jewish faith. There was also an allegation of a deliberate press campaign to misrepresent the Court's decision. Young CJ in Eq referred to Clarkson v The Mandarin Club as an illustration "that acts of reprisal taken after litigation has concluded against a successful party may constitute a contempt": at [37]-[38]. His Honour also referred to Lord Simon's speech referred to above observing that it made clear "that it is a matter which greatly affects the balance of public interests that the proceedings have been concluded": at [36]. However after acknowledging that this must be so his Honour made the point that it was "quite possible for there to be a contempt of court by something which happens after the litigation is finished": at [36(2)]. 138If it is contempt of Court to victimise or punish, or exact a reprisal against, a witness because that witness had given evidence in a case that is concluded, it is difficult to understand why such conduct in respect of a party in a case (who has also been a witness) that is concluded should not also be a contempt of Court. If the Court were to allow parties to victimise or exact reprisals on other parties because they have been successful in their litigation, other prospective parties may be deterred from bringing, or defending, actions in the Courts. However it is imperative to weigh this factor in the balance against the fundamental right to freedom of speech. There will of course be cases where the appropriate remedy is an action for defamation and the particular conduct may not amount to contempt. It will all depend on the circumstances of the case. 139I should also say that although Lord Denning in Attorney-General v Butterworth and Burchett J in Clarkson v The Mandarin Club, were satisfied that the intention to exact a reprisal need not be the only or the dominant intention it may be that the requirement of dominancy of intention is more appropriate particularly because it is a case of criminal contempt. However I do not have to decide that issue in the present case because of my findings below. 140The third branch of government constituted by an independent judiciary is the institution that our society has decided should determine disputes between its citizens. The continued civility of our society is in part dependent upon the maintenance of the integrity of that institution. The integrity of the institution is dependent upon its citizens' confidence that those who are unfortunate enough to have to resort to it for the determination of their disputes will not be victimised or punished for submitting themselves to its processes. If parties, or witnesses, who bring or are brought into proceedings before Courts, whether voluntarily or by compulsion, are exposed to attack, victimisation or reprisals because they took part in or were successful in the proceedings, the erosion of confidence in and thus the integrity of the institution is likely. I am satisfied that the reach of the law of contempt extends to protect the administration of justice from such erosion even if the litigation in respect of which the attack, victimisation or reprisal occurs has concluded. The Charges 141I will now consider each of the charges of contempt brought against the defendant. Except for Charge 4 and 7, the charges are in the nature of criminal contempt and are to be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525. However the plaintiff submitted that the Court should apply the criminal standard of proof to them as well. Charge 1 - the Website 142Charge 1 is as follows: The defendant has, since at least 4 July 2013, caused the website located at the domain to be published in a manner calculated to exact a reprisal against the plaintiff for his having successfully defended proceedings brought by the defendant, among others, in this Court ('Lavington proceedings') and having obtained a costs order in his favour against the defendant, among others, such reprisal being effected: (a) by exposing the plaintiff to hatred, ridicule and contempt; and (b) by means of an improper scheme whereby the defendant offered to cease publication of the website upon the plaintiff's payment of money or provision of property or both to persons on the defendant's behalf. Particulars of Charge (A) The defendant and others commenced the Lavington proceedings against the plaintiff and others, which matter was heard by Nicholas J whose reasons for decision are reported at Amanda Duncan-Strelec & Ors v Thomas Richard Tate & Ors [2010] NSWSC 872. (B) The defendant has admitted publication of the website referred to in [1] above in her: (i)letters to the plaintiff's solicitors, Hickey Lawyers dated 4 July 2013, 6 July 2013 and 21 August 2013; (ii)her (sic) interview with a journalist engaged by The Border Mail, which interview was published in The Border Mail on 6 July 2013. (C) The defendant's legal representative has admitted the defendant's publication of the website referred to in [1] above in his email to the plaintiff's solicitor dated 5 July 2013. (D) It may be inferred from its content that the website was published by the defendant. (E) The defendant's motivation for her conduct may be inferred from the defendant's letter to the plaintiff's solicitors dated 4 July 2013, which letter is published on the website, and states, among other things: "tell your client [i.e. the plaintiff] to suck it up and take it like a man. He has had this coming for a long time". (F) The defendant's motivation for her conduct may be inferred from the defendant's letter to the plaintiff's solicitors dated 21 August 2013, whereby the defendant offers to cease publication of the website upon the plaintiff's payment of money or provision of property or both to persons on the defendant's behalf. (G) The defendant's motivation for her conduct may otherwise be inferred from the content of the website, including the following statements: (i)on the homepage: "Mr. Tate, your direct and indirect actions are the sole reasons this website even exists"; (ii)in the "Story of Amanda": "I am telling our story in an effort to expose these criminals" this being a reference to Tom Tate and another person. (H) The defendant's refusal to comply with the court injunction dated 27 September 2013 in NSWSC proceedings 2013/242125 ('Interlocutory Proceedings'). (I) In furtherance of the defendant's non-compliance with the injunction, the transfer of the domain name (and thus the website) to a host server located outside the jurisdiction of the New South Wales Supreme Court. 143The two main issues for determination in respect of this Charge are: (1) whether the defendant caused the publication of the material on the Website; and (2) if so, whether she did so to punish or exact a reprisal against the defendant for his success in the Lavington proceedings. The plaintiff's "success" in the Lavington proceedings is to be understood as encompassing the order dismissing the claim against him and the costs order in his favour. The consequences of that success included the sequestration of the defendant's estate as a result of the failure to pay the plaintiff's costs. 144The conduct the subject of particulars (H) and (I) is the subject of Charge 7 and has been dealt with separately.

Publication 145For the purpose of the law of contempt, publication of material on the Internet is when the material is made available for access. It is a continuing act. Access is provided "so long as the material is available on the web": Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 293 ALR 384 at [43], per Basten JA (with whom Bathurst CJ and Whealy JA agreed); R v Hinch [2013] VSC 520 at [53]-[54]. A person can publish material on the Internet by uploading it personally or causing it to be available for uploading onto the Internet. 146The language of the defendant's letters to Hickeys in July 2013 clearly conveys that the defendant was in control of the Website and/or publication of material on the Website. In particular the defendant's letter of 6 July 2013 included the following statements:

• I will arrange to have the web site removed on the following conditions;
• If and when, and only when, your client has followed through with all of the above, will I be prepared to take down the website;
  • • As you are no doubt aware, the web site has had 30,000 hits in only two weeks and I haven't finished putting up all the evidence yet;
  • • I have not asked for anything for myself. That was never the intention of setting up my web site. I set it up to extract some justice;
  • • I will be posting this letter to the web.

147Consistently with that last statement, that letter was "posted" or published on the Website. 148After the defendant had been served with the Statement of Claim in the earlier proceedings she wrote to Hickeys on 21 August 2013 in terms that included a claim that if after her barrister cross-examined the plaintiff and he were proved to be telling the truth "then, and only then, will I ask whoever is responsible for publishing the blog, to remove it". This was a marked change in the defendant's language from her letters in July 2013. For the first time the defendant was suggesting that it was someone else who was responsible for publishing the Website. 149The plaintiff submitted that the analysis of the various statements contained on the Website that relate specifically to the defendant or to her grievances with the plaintiff demonstrate beyond any doubt that the defendant was causing their publication. In this regard the plaintiff relied on the following part of the "Home" page of the Website: Tom Tate in his usual manner is once again attempting to silence the freedom of information with his deep pockets by launching legal proceedings against Amanda. Mr. Tate is attempting to take action against Amanda for the information she has provided to this website ... Amanda has in a recent email to this website, sent Notices, Affidavits, Motions and legal threats received from Hickey Lawyers to this website (available for viewing/download further below) ... Finally your assumptions that Amanda is the author of this website are totally wrong. She has contributed information and that is the extent of her involvement with this website and domain. 150The plaintiff also relied on the following section of the "ASIC" page on the Website: 8th July 2013 update: Amanda has lodged a submission to the Senate enquiry into ASIC. When Amanda became aware that the Forestry Bond's (sic) were worthless and that they were still being traded she immediately lodged a complaint with ASIC who failed to take any action. At the conclusion of her court case and after she had uncovered even more evidence she lodged a further complaint to ASIC only to be advised that they intended to take no further action. 151The plaintiff also relied on the following section of the "Supreme Court Transcript" page on the Website: This is the full transcript of the trial before Justice Nicholas on 28th June, 2010. We are publishing this so people can see for themselves how hard it is to seek justice when you have very little or no funds. Justice is for the wealthy, not the innocent or the victim. We are also publishing this to validate Amanda's story and prove that is not hearsay but fact. 152The plaintiff also relied on the following section of the "Legal Services Commission" page of the Website: This is the response from the Legal Services commissioner to Amanda's complaint in regard to the conduct of her solicitor. Not satisfied with his findings she wrote to the Attorney General's Department only to be told that the Commission's ruling was final and could not be appealed. Due to his finding on a lesser charge Amanda and David were unable to recover the money that they had already paid unless they took civil action. Due to the fact that they had no money left, they were unable to pursue this any further. 153The plaintiff also relied on the following section of the "Surfers Paradise Bowls Club" page of the Website: When my family and our friends travelled to the Gold Coast in March 2002 to help Tom with his campaign to run for Council for the seat of Surfer's Paradise, Tom was telling me about his desire to expand his operation around his hotel and backpacker establishment, the Islander Resort ... ... In the next few days, the truth about Tom Tate and his many deals will be revealed. And it won't be through the newspapers or the television news broadcasts as they had their opportunity prior to the election and sat on the story. When the facts are revealed, I urge every ratepayer who cares about their city to lodge a complaint to their local member at State and federal level as well as the Crime Misconduct Commission. The truth will out and Tom Tate will finally get what he deserves. 154The plaintiff also relied on the following section of the "Contact Us" page of the Website: Amanda chose not to be the administrator of this website, however she is updated daily and all relevant emails are forwarded on to her. She wishes to thank all the well-wishers and apologizes that she cannot respond to everyone personally. 155The Website contains the whole of the transcript of the Lavington proceedings and, in "the story of Amanda", there is published a detailed critique of the conduct of the Lavington proceedings written from the perspective of the defendant. Also published on the Website are numerous documents that were in evidence or were referred to in the Lavington proceedings: the Forestry Bond; and affidavits relied upon in the present proceedings including that of the plaintiff sworn on 7 August 2013 and those of Mr Eustace sworn on 27 August 2013 and 4 September 2013. I am satisfied that the affidavits would have come only from the defendant upon whom they were served. The correspondence to and from ASIC in respect of the defendant's Complaint against the plaintiff and Wamego is also on the Website. 156If the statements attributed to the defendant in the article published in The Border Mail on 6 July 2013 are accurately recorded, they too support the conclusion that the defendant published the material on the Website. Throughout her submissions in these proceedings the defendant made a number of statements that the plaintiff seeks to rely upon as admissions that the defendant published the Website (tr 54; 56; 57; 64; 69; 71). It is not necessary to resort to those statements because of the view that I have reached irrespective of them. 157Although after her initial letters in July 2013 to Hickeys the defendant claimed that someone else was responsible for publishing the Website, it is clear beyond reasonable doubt that the defendant provided this material for publication with the knowledge and intention that it be published on the Website. The claim on the "Contact Us" section of the Website that the defendant "chose" not to become the administrator of the Website does not mean that she is not responsible for the publication of the material on the Website. 158I am satisfied beyond reasonable doubt that the defendant made the material available for publication on the Website and that she published or caused it to be published on the Website. Intention to exact a reprisal 159Although it is clear from the material published on the Website that the plaintiff considered bringing an appeal and took legal advice in this regard, she decided not to utilise the appropriate mechanism to test the correctness of the decision of the trial judge. Rather she chose to publish the whole of the trial transcript and many of the affidavits and documents on the Website. She chose to make false statements about the trial judge, referred to later in respect of Charge 5, and chose not to publish the judgment on the Website. 160The fact that the defendant complained to ASIC about the plaintiff and Wamego prior to the hearing of the Lavington proceedings may tend to support a conclusion that the defendant was pursuing the Complaint about the plaintiff irrespective of the outcome of the pending Lavington proceedings. This might be relied upon to contend that the defendant's publication of the material on the Website was unrelated to the plaintiff's victory in the proceedings. However it was only after ASIC declined to take the Complaint any further and after the conclusion of the Lavington proceedings that the defendant decided to make public her views about the plaintiff. This included the publication of the ASIC correspondence on the Website. The characterisation of ASIC's conduct on the Website conveys that it was not justified in its decision "to take no further action" in respect of the plaintiff's conduct, so much so that, according to the 8 July 2013 "Update" of the Website, "Amanda has lodged a submission to the Senate enquiry into ASIC". The defendant chose to make public the ASIC correspondence to support her claims in the various parts of the "story", that the plaintiff is a criminal, and that money can buy influence. 161The "stories" of Messrs Bottrill, Wattling, da Costa and Ryan make most serious allegations against Mr Kovacevic and in one instance directly against the plaintiff. However the clear intent of the publication of these stories under the poisonous banner of the Webpage is to suggest that the plaintiff is a criminal. However these stories on the Website are not drawn together in any logical or forensically disciplined way to establish any proper basis to justify the claim that the plaintiff is a "criminal". The material on the Website brings the plaintiff into the so-called "tangled web" and makes him guilty by association with Mr Kovacevic. The clear aim of the publication is to hurt the plaintiff. 162The defendant characterises her pursuit of the plaintiff by these publications on the Website as "an effort to expose these criminals and the system that allows them to operate undetected and unaccountable". This claim reveals the defendant's underlying view that the plaintiff should not have been successful in the Lavington proceedings and her clear motivation to bring him to account for the claims that she made against him in respect of the development of the Wamego land in the Lavington proceedings when, in her view, the legal system would not hold him so accountable. Her plea for "justice and fair play" in the context in which it was published conveys that neither justice nor fair play was available to her in the Lavington proceedings and this is why she has taken to the ether. 163The letter of 6 July 2013 gave the plaintiff 48 hours over a weekend to respond to "conditions" in exchange for which the defendant said she would "take down" the Website or have it "removed". The so called "conditions" were demands that the plaintiff compensate (or agree to compensate) third parties for debts allegedly incurred in those persons' dealings with Mr Kovacevic; to refurbish (or by inference promise to refurbish) the Surfers Paradise Bowls Club; to take certain action in respect of the allegedly "worthless Forestry Bonds"; and to make a public declaration about his interests in companies. These demands were coupled with the threat that if the plaintiff did not respond within the timeframe "I will be posting this letter to the web". 164These demands conveyed that the plaintiff was somehow responsible for the conduct alleged against Mr Kovacevic and yet the "stories" of these third parties contained on the Website had no proper or real connection to the plaintiff except in the most peripheral way. The threat therefore was to continue to publish material about the plaintiff if he did not meet her quite unreasonable demands. This was quite improper. In the eyes of right-minded people the claims about the plaintiff on the Website expose the plaintiff to hatred, ridicule and contempt. I am satisfied that the defendant was well aware that this would be so. This is evidenced in part by the threat that she made to continue the publication of the Website unless the plaintiff met her unreasonable demands. 165The defendant's statements to Hickeys that they should tell the plaintiff to "suck it up and take it like a man" and that the plaintiff "has had this coming for a long time" indicate that a real, and in my view a dominant, motivating factor in the defendant's publication of the Website was to exact a reprisal against the plaintiff for his success in the Lavington proceedings. I am satisfied that others are likely to be deterred from submitting themselves to the processes of the Court if such conduct were allowed to occur with impunity. 166The defendant submitted that the plaintiff has failed to prove beyond reasonable doubt that she ever "owned or controlled" the Website" (tr 145). It is true that the plaintiff has not been able to obtain from Panama Servers the details of the registrants or its clients. However for the reasons stated above, I am satisfied beyond reasonable doubt that the defendant published, or caused to be published, the material on the Website. The content of the Website as a whole conveys that the defendant resorted to these publications because the plaintiff should not have been successful in defending the Lavington proceedings. I am satisfied beyond reasonable doubt that the defendant published the Website to exact a reprisal against and hurt the plaintiff because he successfully defended the Lavington proceedings. 167I find the defendant guilty of contempt of Court on Charge 1 in the Statement of Charge filed on 5 December 2013. Charge 2 - First Mirror Website (www.thomasrichardtate.com) 168Charge 2 is as follows: The defendant has, from at least 4 July 2013 to about 2 October 2013, caused the website located at the domain www.thomasrichardtate.com to be published in a manner calculated to exact a reprisal against the plaintiff for his having successfully defended the Lavington proceedings and having obtained a costs order in his favour against the defendant, among others, such reprisal being effected: (a) by exposing the plaintiff to hatred, ridicule and contempt; and (b) by means of an improper scheme whereby the defendant offered to cease publication of the website upon the plaintiff's payment of money or provision of property or both to persons on the defendant's behalf. Particulars of Charge (A) The plaintiff repeats particulars (A) and (G) of [1] above. (B) The defendant's motivation for her conduct may otherwise be inferred from the content of the websites referred to in [1] and [2] above, including the following statements: 'this website and its contents has been mirrored and archived copies are safe with several people already'. (C) It may be further inferred that, insofar as the defendant was willing to cease publication of the website referred to in [1] above upon the plaintiff's payment of money or provision of property or both to persons on the defendant's behalf, the defendant was also willing to cease publication of the website referred to in [2] above on the same basis. 169The plaintiff highlighted the two very different out of court versions given by the defendant as to her capacity to control the publication of the Website. In the July 2013 correspondence with Hickeys the defendant clearly indicated that she had the capacity to control the publication of the materials on the Website. In contrast, after the proceedings were commenced the defendant sought to distance herself from that capacity by suggesting that it was others who controlled the publication of the Website. Although at one stage it appeared that the plaintiff wished to rely upon an adverse inference by reason of the defendant's absence from the witness box in these proceedings, it was ultimately accepted that such an adverse inference would not be available in criminal contempt proceedings: Jones v Australian Competition and Consumer Commission [2010] FCAFC 136; (2010) 189 FCR 390. 170The defendant chose not to give evidence in these proceedings and sought to make submissions based on the material that was in evidence including the snapshot of the Website at the date of the trial. However in making those submissions the defendant tended to blur the distinction between submissions and evidence. For instance on 15 July 2014 the defendant said (tr 56-57): I have been a mayor, I have been in public life for twenty years. I know how important it is to be totally ethical. And when I started to uncover this web of lies, deceit, con men, you have only got to read the stuff that I uncovered and provided to this web master-who by the way rang me because he had been ripped off to the tune of hundreds of thousands of dollars. He wanted revenge but I suppose he didn't have the courage to put his name to it and that is why he said to me, "You have the opportunity to put your story there". I don't know anything about websites or mirror sites or domain names. I never have. I did start to worry, I do respect the Court and when Justice Ball issued that ruling I did email that site. Yes, I did call it my website because I felt a sense of ownership that because finally I was starting to expose Mr Tate and Mr Kovacevic to the men they were. And you only have to read the material on there your Honour to realise that everything I have put up there is substantiated with hard data, with factual data. And I made sure of that. 171The submission "you have only got to read the stuff that I uncovered" suggests that the defendant contended that her claims that the plaintiff is a criminal and a conman are true. That contention depends on a reading of the Website as a whole. I am satisfied beyond reasonable doubt that the material published on the Website does not support a finding that these epithets can be justifiably applied to the plaintiff. This submission may also have been made in support of a contention that the Court could not be satisfied beyond reasonable doubt that the defendant intended to exact a reprisal by the publication of this material. For the reasons given below I am so satisfied beyond reasonable doubt. 172There is also no evidence of the particular communication with the person referred to by the defendant as the "webmaster". Although it would appear to be yet a further version of events about the purported control over the Website that the defendant has put forward, I do not intend to take it into account as evidence. 173It is clear from the contents of the Website as a whole that the defendant caused the publication of the information on the Website and but for the provision of the information by her it would not have been published nor could the mirror websites have been created. The Update of 25 September 2013 includes the statement that the Website "and its contents has been mirrored and archived copies are safe with several people already". 174The defendant originally claimed it was "my web site". The content of this mirror webpage was identical to the Website at the time access to it was blocked on about 2 October 2013. Although the defendant sought to distance herself from her formerly claimed capacity to control the content of the Website, I am satisfied beyond reasonable doubt that she is responsible for the publication of this mirror website. 175For the reasons given in respect of the Website the subject of Charge 1, I am satisfied beyond reasonable doubt that the defendant published or caused to be published this mirror website to exact a reprisal against the plaintiff because he successfully defended the Lavington proceedings. 176I find the defendant guilty of contempt of Court on Charge 2 in the Statement of Charge filed on 5 December 2013. Charge 3 - Second Mirror Website (www.tateandkovacevic.com) 177Charge 3 is as follows: The defendant has, from at least 4 July 2013 to about 2 October 2013, caused the website located at the domain www.tateandkovacevic.com to be published in a manner calculated to exact a reprisal against the plaintiff for his having successfully defended the Lavington proceedings and having obtained a costs order in his favour against the defendant, among others, such reprisal being effected: (a) by exposing the plaintiff to hatred, ridicule and contempt; and (b) by means of an improper scheme whereby the defendant offered to cease publication of the website upon the plaintiff's payment of money or provision of property or both to persons on the defendant's behalf. Particulars of Charge (A) The plaintiff repeats particulars (A) and (G) of [1] above. (B) The defendant's motivation for her conduct may otherwise be inferred from the content of the website referred to in [1], [2] and [3] above, including the following statements: 'this website and its contents has been mirrored and archived copies are safe with several people already'. (C) It may be further inferred that, insofar as the defendant was willing to cease publication of the website referred to in [1] above upon the plaintiff's payment of money or provision of property or both to persons on the defendant's behalf, the defendant was also willing to cease publication of the website referred to in [3] above on the same basis. 178This mirror website is in identical form to the Website the subject of Charge 1 at the time access to it was blocked on about 2 October 2013. For the reasons given in respect of Charge 1 and Charge 2 above I am satisfied beyond reasonable doubt that the defendant published this mirror website or caused it to be published to exact a reprisal against the plaintiff because he successfully defended the Lavington proceedings. 179I find the defendant guilty of contempt of Court on Charge 3 in the Statement of Charge filed on 5 December 2013. Charge 4 - Misuse of documents 180Charge 4 is as follows: The defendant, from at least 4 July 2013 to about 27 September 2013, used documents or information obtained from the plaintiff in court proceedings for a collateral or ulterior purpose and thus in a manner not reasonably necessary for the proper conduct of the proceedings on behalf of the defendant, namely publication of the following documents on the websites identified in [1], [2] and [3] above for the purpose of exacting a reprisal against the plaintiff: (i)A copy of a forestry bond identified by certificate number 002, which, in the Lavington proceedings, the plaintiff's solicitors sent by facsimile to the defendant's former solicitors, Kemp Strang, on 15 February 2008 (the relevant copy comprising page 3 of the copy) ('Forestry Bond'); (ii)the affidavit of the plaintiff dated 7 August 2013 served on the defendant in the Interlocutory Proceedings; (iii)the affidavit of Scott Eustace dated 28 August 2013 served on the defendant in Interlocutory Proceedings; (iv)the affidavit of Scott Eustace dated 4 September 2013 served on the defendant in Interlocutory Proceedings. Particulars of Charge (A) The plaintiff repeats particulars (A) and (G) of [1] above. (B) As to the Forestry Bond: (i)On 15 February 2008, through her former solicitors, the defendant requested a copy of the Forestry Bond from the plaintiff's solicitors: Letter from Kemp Strang to Hickey Lawyers dated 1 February 2008; (ii)On 15 February 2008, the plaintiff's solicitors forwarded the Forestry Bond to Kemp Strang: Facsimile from Hickey Lawyers to Kemp Strang dated 15 February 2008; (iii)As at the time of the matters pleaded in particulariseed (sic) in (B)(i) and (B)(ii) above, the Forestry Bond was one of 6 forestry bonds the subject of interlocutory orders made by Justice Nicholas (sic) by consent on 23 January 2007 in the Lavington proceedings whereby the plaintiff and his wife were required to ensure that their solicitor held the bonds upon receipt in trust for the parties in the Lavington proceedings (including the defendant in these proceedings) pending further order of the Court or the written direction of all the parties; see: Order 3(a) made 23 January 2007 in the Lavington proceedings; (iv)The Forestry Bond was not in evidence in the proceedings; (v)By reason of orders of the Court particularised in (B)(iii) above, the plaintiff was under a compulsion to provide the Forestry Bond to the defendant's former solicitors; (vi)By reason of the matters particularised in (B)(iv) above, the Forestry Bond was provided to the defendant, through her former solicitors, subject to the defendant's implied undertaking to the Court that it would not be used except for the purposes of the Lavington proceedings; (vii)Notwithstanding the matters particularised above, the defendant published the Forestry Bond on the websites after the conclusion of the Lavington proceedings; see: the websites; (viii)The defendant's motivation in publishing the Forestry Bond may be inferred from the contents of the websites, namely, the Forestry Bond was published for the purpose of exacting a reprisal against the plaintiff by adding authenticity to the defendant's claim against the plaintiff. (C) As to the affidavits: (i)Each of the affidavits was served on the defendant on behalf of the plaintiff in the Interlocutory Proceedings on or about the date of its attestation; (ii)on or about 25 September 2013, the defendant published the affidavits on the websites; (iii)as at the time of their publication, the affidavits had been filed but not read in the Interlocutory Proceedings. 181It is alleged that the defendant published a copy of the Forestry Bond that was not in evidence in the Lavington proceedings. It was one of six Bonds the subject of interlocutory orders made by consent on 23 January 2007 (before McDougall J and not Nicholas J as the particulars allege) that were held by the plaintiff's solicitors during the Lavington proceedings. The defendant's then solicitors, Kemp Strang, requested a copy of the Forestry Bonds and they were provided on 15 February 2008. 182The particulars to the Charge allege that the plaintiff was under a compulsion to provide the Forestry Bond to the defendant. In this regard the plaintiff relies upon the implied undertaking as outlined in Hearne v Street (2008) 235 CLR 125 where Hayne, Heydon and Crennan JJ said at [96] (footnotes omitted): Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include ... affidavits. 183The plaintiff took it upon himself to prove this charge beyond reasonable doubt and asked the Court to apply the criminal standard of proof, notwithstanding that a breach of the implied undertaking is a civil contempt: Harman v Secretary of State for the Home Department [1983] 1 AC 280. 184It was submitted that the Forestry Bond was provided subject to the defendant's implied undertaking to the Court that it would not be used except for the purposes of the Lavington proceedings. It was further submitted that the defendant published the Forestry Bond in a manner not reasonably necessary for the proper conduct of the Lavington proceedings and well after the conclusion of the proceedings. It was submitted that the defendant misused it for a collateral or ulterior purpose, namely the publication of the Website for the purpose of exacting a reprisal against the plaintiff. It was also submitted that it was self-evidently published to add credence and an air of authenticity to the defendant's claims against the plaintiff. 185In my view the circumstances in which the Forestry Bond was provided to the defendant's former solicitors were not akin to circumstances where disclosure or discovery occurs under compulsion. The defendant, her husband and Dunlec had brought interlocutory proceedings for the injunction to restrain the plaintiff, his wife and Wamego from proceeding to settle the Share Sale Agreement with Mr Kovacevic. A consensual arrangement was reached whereby monies were placed in trust, as were the Forestry Bonds. When a request was made for copies of the Bonds, they were provided. It appears that the Forestry Bonds were not admitted into evidence as an exhibit. However the trial judge referred to the Forestry Bond in his judgment: Duncan-Strelec v Tate [2010] NSWSC 872 at [37]. The Forestry Bonds were also referred to during the course of the oral evidence in the Lavington proceedings (tr 68; 123; 146; 155; 157 and 201). 186I am not satisfied beyond reasonable doubt that the Forestry Bond was provided under compulsion. I am satisfied that it was provided consensually. I am not satisfied beyond reasonable doubt that the part of this Charge in relation to the publication of the Forestry Bond is made out. 187I now turn to the affidavits. It is claimed that the defendant's publication of the plaintiff's affidavit and Mr Eustace's affidavits occurred prior to them being deployed in the proceedings and that they were published for the improper purpose of exacting a reprisal against the plaintiff and therefore constituted a contempt of Court. These affidavits were published on the Website as an "Update" on 25 September 2013. 188The affidavits were filed in support of the earlier proceedings generally and were to be used in support of the Notices of Motion listed for hearing before Ball J on 27 September 2013. A party who files a document with the Court is under a compulsion to serve it on each other active party: 10.1(1) Uniform Civil Procedure Rules 2005 (UCPR). If a party intends to use an affidavit that has not been filed, that party is compelled to serve it on each other interested party not later than a reasonable time before the occasion for using it arises: 10.2(1) UCPR. The plaintiff was therefore under a compulsion to serve the affidavits on the defendant and did so. In Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 533 at [5]-[9] Barrett J, as his Honour then was, held that the implied undertaking does not apply to affidavits if they have been "volunteered". However in that case his Honour was not asked to consider the abovementioned UCPR provisions. 189At the time that the defendant published the affidavits or caused them to be published on the Website, she was well aware of the plaintiff's claim that the publication of the Website should cease because it was a contempt of Court. She was aware that the matter was listed before the Court for determination of at least the Notices of Motion in respect of the plaintiff's claim regarding the publication of the Website. The affidavits were published with the stated lesson for the plaintiff that "once information is freely available on the Internet; it will always be available on the Internet". These affidavits were published prior to them being deployed in any hearing with a message, defiant in my view, in the "Update" on the Website dated 25 September 2013 (referred to earlier but extracted in part here again for convenience) which included: Mr. Tate, your direct and indirect actions are the sole reason this website even exists. You know that Amanda cannot afford to fight against you as you are the one who sent her bankrupt - yet you continue your malicious and calculated pursuit of her, for what? This website and its contents has been mirrored and archived copies are safe with several people already. There is nothing for you to gain in doing so; if anything - people ask the question "Why spend all this time and resources in removing something that you so strongly deny?". I think we all know the answer to that question. We have contacted local media in New South Wales and Queensland regarding the court hearing to ensure people are not "kept in the dark". 190In his judgment of 27 September 2013 Ball J said that the defendant published the affidavits on the Website "before these affidavits were read": Tate v Duncan-Strelec [2013] NSWSC 1446 at [12]. It is apparent from the dates within this Charge, that the plaintiff accepts that the affidavits were deployed in the hearing on 27 September 2013 and no breach of the implied undertaking is alleged for the continued publication thereafter, in recognition of the position that once a document has been read in open Court it loses the protection of the undertaking: Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 168; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32-33. 191The publication of these affidavits on the Website forms part of the conduct relied upon in Charges 1 to 3, in respect of which I have found the defendant guilty of contempt of Court for the reasons stated. Although no question has been raised in respect of the form or substance of the charge, I fear there is a danger of some duplicity in extracting individual aspects of the conduct the subject of Charges 1 to 3 and bringing them as an additional charge. There is no such fear in respect of Charges 1 to 3. In those Charges the whole Website was published and then republished in the mirror websites. Although a breach of the implied undertaking appears to have occurred in publishing the affidavits on the Website for the two days, 25 and 26 September 2013, I am not satisfied that any finding of guilt separate from the finding in respect of Charges 1 to 3 should be made. 192I find the defendant not guilty of contempt of Court in respect of Charge 4 in the Statement of Charge filed on 5 December 2013. Charge 5 - Scandalising the Court 193Charge 5 is as follows: The defendant has, since at least 4 July 2013, in respect of the website referred to in [1] above and between at least 4 July 2013 and about 2 October 2013 in respect of the websites referred to in [2] and [3] above, caused them to be published with the aim of lowering the authority of the Court as a whole or that of its judges and thus in a manner calculated to impair public confidence in the Court and its judicial determinations. Particulars of Charge (A) The plaintiff repeats particulars (A) and (G) of [1] above. (B) The websites contain statements critical of Justice Nicholas' conduct during the Lavington proceedings and The New South Wales judicial system, including the following: (i)"This is a true story...It is the story of the failure of the law and government authorities to do their job and protect the innocent"; (ii)"It is the story of a couple whose only fault was that they trusted the wrong people, and, when they realised they had been conned, relied on the legal system to protect them"; (iii)It is... the story of the failure of... the legal system to protect the vulnerable and the trusting"; (iv)"...my husband and I are now bankrupt, sent that way by Tate... However, thankfully we still have freedom of speech and I have used my freedom of speech to tell my story. It is the only weapon I have left to continue my fight for justice. It is a sad indictment on our legal system that it has had to come to this"; (v)"What happened to my husband and I could just as easily have happened to any of you reading this story and could still be happening to people now"; (vi)"On the 30th March, 2010 at another Directions Hearing before Registrar Walton, Anthony Lo Surdo, Counsel for Tate, applied for a trial date as soon as possible. The registrar gave them the date of the 28th June, 2010 before Justice Nicolas [sic]. I had less than three months to prepare our case with no idea of what I had to do"; (vii)"Tate's lawyers, after three years of delay at every opportunity, which they covered well, unlike my now former solicitor Kylie, were all of a sudden keen to go to trial as soon as possible, I'm sure they could smell blood, once they found out I was self-representing and they were going to go in for the kill"; (viii)"What price justice? For us? Bankrupt and penniless in our late fifties"; (ix)"I am telling our story in an effort to expose these criminals and the system that allows them to operate undetected and unaccountable, and I am sure, as day follows night, that we are just two of the many victims still out there"; (x)"Supreme Court Transcript This is the full transcript of the trial before Justice Nicholas on the 28th of June, 2010. We are publishing this so people can see for themselves how hard it is to seek justice when you have very little or no funds. Justice is for the wealthy, not the innocent or the victim. We are also publishing this to validate Amanda's story and prove that is not hearsay but fact." (C) The websites make the following assertions regarding the Court and Justice Nicholas: (i)Justice Nicholas forced the defendant to attend Court notwithstanding her having undergone major pelvic reconstructive surgery the day before; (ii)Justice Nicholas criticised the defendant for being self-represented; this criticism is said to have occurred on the day the defendant was forced to attend Court, notwithstanding her having undergone major pelvic reconstructive surgery the day before; (iii)Justice Nicholas denied the defendant a fair trial by refusing to give her information she needed; (iv)In the course of the trial of the Lavington proceedings, Justice Nicholas showed callous disregard for the defendant when she informed his Honour that her son had been seriously injured the day before its commencement; (v)Justice Nicholas refused to grant the defendant an ajournment when she informed his Honour of her son's accident; (vi)Justice Nicholas behaved in such a way as to convey to the defendant that from the outset she would lose the Lavington proceedings; (vii)Justice Nicholas rudely, improperly and unfairly prevented the defendant from continuing her cross-examination of the plaintiff in the Lavington proceedings; (viii)Justice Nicholas permitted the plaintiff's barrister to behave improperly during the course of the trial, including in respect of his cross-examination of a self-represented witness being the plaintiff's husband; (ix)The judicial system allowed the plaintiff's barrister deliberately to mislead the Court; (x)Justice Nicholas wrongfully excluded certain of the defendant's affidavit evidence, thus treating her unfairly in the course of the trial; (xi)Justice Nicholas wrongfully decided the proceedings, wrongfully criticised the defendant's husband and wrongfully portrayed the plaintiff as the victim of the Lavington proceedings. (D) The statements and assertions particularised in [5(B)] and [5(C)] above, are false and without foundation; see: the transcript of the Lavington proceedings and the reported decision in the Lavington proceedings; in particular see the transcript at TS136.10-137.10 on 29 June 2010 where Justice Nicholas asked the defendant whether she was "content for the case to continue" upon being informed by the defendant that her son has been seriously injured in an accident and that the defendant was unwell; the defendant confirmed that she wanted the case to continue. (E) The defendant's statements and assertions particularised in [5(B)] and [5(C)] constitute improper and unjustifiable conduct and are lacking in bond fides, having regard to the following further particulars: (i)The defendant published the matters complained of knowing them to be false or with reckless indifference to their truth or falsity, and lacking an honest belief in what she published; (ii)The defendant refrained from publishing a copy of the reported decision of Justice Nicholas thus denying readers of the Website access to a different record of the Lavington proceedings; (iii)The wide publication of statements by way of the internet. (F) The defendant's publication of the websites is aimed at lowering the authority of the Court as a whole and the Court's judicial officers and, in particular, Justice Nicholas, in a manner calculated to impair public confidence in the Court, its officers and its judicial determinations, in that the websites excite public misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. 194A publication that has a tendency to disparage the authority of the Court may constitute contempt even where it is made after a case has concluded: Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 at [49]. However a citizen's right of honest criticism of the Court's decisions based on rational grounds is not a contempt of Court. In R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442 (quoted with approval by Gleeson CJ and Gummow J in Re Colina; Ex parte Torney (1999) 200 CLR 386 at 390) Rich J said: Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. 195In R v Gray [1900] 2 QB 36 Lord Russell CJ cautioned that the jurisdiction in respect of contempt for scandalising the Court had to be exercised with "scrupulous care" (at 41). Lord Russell CJ said at 40: Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is contempt of court. ... Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court. 196In that case the Court found that the publication was "personal scurrilous abuse of a judge as a judge" (at 40). 197The law of contempt in this regard does not respond to the sensitivities of individual judges to criticism (sometimes, severe criticism). It is to protect the integrity of the institution. As Young CJ in Eq said in Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd at [48] "the court needs to be on the qui vivre to preserve its dignity and to prevent parties misrepresenting its decisions" but it is "only when the misrepresentation gets to the stage of scandalizing the court that a contempt is committed". 198In determining whether a statement has a tendency to lower the authority of the Court, the extent of the publication of the statement is relevant, in particular where it has a wide circulation in the area where it is claimed that public confidence is impaired: Borrie & Lowe: The Law of Contempt (1996, Butterworths, 3rd ed) at 338. This needs to be considered in the global environment in which technology facilitates the rapid delivery of commentary in all forms, including via the ubiquitous social media "blog", on which it appears freedom of speech flourishes unrestrained. The fact that there is more capacity to read other people's opinions, comments and allegations than in times prior to the establishment of the Internet does not mean that the Court should be less vigilant in ensuring that there is no interference with the administration of justice and protecting the Court from being scandalised. 199It might be assumed that by reason of the sheer volume of publication on the Internet (including commentary, opinion and in some instances plain verbal abuse) less notice might be taken of the content of the Website than if the material had been published in a more authoritative publication such as a national newspaper. That may well be so. However it must be remembered that this Website is, and is lauded to be, the vehicle for the voice of a former public figure (a former Mayor with 20 years local government experience) making the most serious allegations against another public figure. 200It was submitted that here the Website, which by its nature is published to the widest possible audience, imputes unfairness, callousness and lack of impartiality to the Court and the trial judge in particular. It was submitted that the Website contains assertions that individuals, and in particular self-represented litigants before the Court, cannot expect to receive a fair hearing. 201The plaintiff's claims in particulars (C)(i) and (C)(ii) that the defendant's publication of the Website represented that the trial judge forced her to attend Court after major surgery are not made out. The version of events given by the defendant that the trial judge's associate telephoned her and advised her that the matter was listed for directions does not suggest that the associate was informed of the fact that the defendant was in hospital or that she had undergone major surgery. Rather it was put in the context of the defendant struggling to appear in the proceedings without indicating that the trial judge was aware of this background. 202Particular (C)(iii) to the Charge alleges that the Website included an assertion that the trial judge denied the defendant a fair trial by refusing to give her information she needed. This is found in the following passage of Chapter 6 of the story of Amanda dealing with her attempts to locate Mr Kovacevic to serve a subpoena on him: When I raised these issues with Justice Nicholas during the case, advising him that Kovacevic was avoiding the process server, and asking him if there was some way the Court could force Kovacevic to appear according to what I considered was a legal document requesting him to do so, the Judge said there were options open to me but that it was up to me to find out what they were. I wondered to myself why did we bother paying all that money to lodge and serve a subpoena if they held no weight with the Court? And why wouldn't the Judge give me the advice I needed to ensure we were given a fair trial. 203The relevant exchange between the defendant and the trial judge occurred at the commencement of the trial and is recorded in the transcript that is on the Website. The defendant advised the Court that she had a process server searching for Mr Kovacevic but that she was "seriously concerned" because she believed that he was aware that there was a subpoena out for him to appear and that he was "deliberately avoiding the process server". The trial judge informed the defendant that she would have to take steps to procure his attendance; that he was the judge trying to resolve the contest and did not give advice as to how parties should go about running the contest. However the trial judge informed the defendant that she would "need to make an application" and that it was "something you will need to think about" (tr 4). 204The defendant's statements in the extract from Chapter 6 above convey that the lack of advice from the trial judge about the steps she might take in respect of the subpoena to Mr Kovacevic impacted adversely on her right (and that of her husband and Dunlec) to a fair trial. The defendant was aware of the Share Sale Agreement between the plaintiff and his wife and Mr Kovacevic and the earlier agreement between the plaintiff and his wife and Mr Lind-Mitchell. Assuming that the defendant could have subpoenaed Mr Kovacevic to give evidence, she would have had to elicit evidence from him relevant to the issues for determination. It is not at all clear how the absence of Mr Kovacevic would have made the trial unfair to the defendant. 205It was not in issue in the Lavington proceedings that the plaintiff had been dealing with both Mr Lind-Mitchell and Mr Kovacevic at a time when the defendant, her husband and Dunlec were alleging that they had a joint venture agreement with the plaintiff. The issue in the proceedings was whether there was such an agreement reached in June 2006. As I have already said, the difficulties that the defendant and her husband faced included the email exchanges with the plaintiff upon which the trial judge based his decision in dismissing the Lavington proceedings. 206The suggestion that a fair trial was not available to the defendant and her husband on the basis that the trial judge did not give her advice was an unjustified criticism but on its own is not a statement that I would regard as scandalising the Court. 207Particulars (C)(iv) and (C)(v) of the Charge relate to the material on the Website referred to earlier and the claim that the trial judge failed to allow an adjournment when he heard of the defendant's son's accident. It is contended that the assertions on the Website in this regard convey (and were intended to convey) that the trial judge showed "callous disregard for the defendant". The following extracts of the story of Amanda are relied upon in respect of this aspect of the Charge. The relevant statements in Chapter 6 are as follows: On the second day of the case I was so unwell from lack of sleep and worry that I advised Justice Nicholas about my son and his accident. He just shrugged and moved on with the trial. 208Chapter 7 includes details of the defendant's meetings and discussions with her two barristers to consider an appeal from the dismissal of the Lavington proceedings and her decision not to pursue an appeal. It includes the following: Then we got serious and by the time the day was done, it became clear that if we could find grounds for Appeal, and there were a couple of possibilities, not the least being the failure of the Judge to allow an adjournment when he heard of my son's accident, it would all depend on what the Appellate Court decided. 209The exchange between the defendant and the trial judge regarding this matter was as follows (where for convenience the defendant is referred to as "DS" and the trial judge is referred to as "HH" at pages 136-137 of the trial transcript): DS: And if you go down four paragraphs to the comments about - I am sorry, your Honour. I'm not feeling very well at all. HH: What do you want to do? Do you want me to break for a while? You have had the lunch break. DS: I tried to recover over the lunch break, but I am not feeling well at all. Our son was seriously injured in a motorcycle accident on Sunday, before the case started. He has had two operations. He is in hospital in Thailand, and we are both very quite distressed about it. He might have to go back for further surgery. I am trying to focus on this, your Honour, but if it is not beyond reason, I'm quite happy to forgo further questions to Mr Strelec. Even if we could get the basic evidence from Mr Tate, could we adjourn? I am not just feeling well at all. I need to get back in touch with him, over in Thailand. HH: Do I understand, then, you don't wish to take the re-examination of Mr Strelec any further? DS: That's correct. HH: Then, Mr Strelec, you may step down. That is the end of your evidence. You are free to stay or go, You, being a party, no doubt you will want to stay. THE WITNESS WITHDREW HH: You are content for the case to continue? DS: I would prefer that it does. I don't want to delay, but I'm not feeling well at all. HH: Do you have any further evidence to call in your case? DS: No, your Honour. HH: That closes your case? DS: Yes. HH: In due course you will be able to make submissions, so that will come in after the evidence. You understand we will proceed with the defendant's case? DS: That's correct. HH: We will hear from the defendant's witnesses. DS: Yes HH: You will have the opportunity to cross-examine if you wish, do you understand that? DS: Yes. HH: You are happy to proceed on that basis? DS: Yes. 210As can be seen from the exchange between the trial judge and the defendant, it is quite false to have claimed, as the defendant did, that the trial judge failed to allow an adjournment when he heard of the defendant's serious accident overseas. No such adjournment was sought nor refused. It is also quite false to have claimed as she did that the trial judge "just shrugged and moved on with the trial". These false claims need to be viewed in the context of the other statements on the Website about the "legal system" including: "the failure of the law" to "protect the innocent"; a "sad indictment on our legal system" that freedom of speech is the only weapon left to continue her "fight for justice"; and that it is a system that allows the plaintiff as a criminal "to operate undetected and unaccountable". 211I am satisfied beyond reasonable doubt that the defendant falsely accused the trial judge of conduct calculated to have his Honour judged by the community as a person who showed callous disregard for the defendant when she informed the Court that her son was seriously injured. 212Particulars (C)(vi) to (C)(xi) of the Charge relate to the assertions on the Website in relation to the conduct of the trial and the outcome of the Lavington proceedings. Those assertions include a claim that the trial judge was "scathing in his criticism" of the defendant's husband "portraying him as untruthful". Although the defendant published the whole of the transcript of the Lavington proceedings on the Website, there is no statement by his Honour recorded in the transcript that could be regarded as portraying the defendant's husband as "untruthful". In the judgment, which as I have said, the defendant chose not to publish on the Website, the trial judge said at [57]: The evidence of Amanda and David of the relevant conversations conflicted with Tom's account. In my assessment, Tom's evidence is to be preferred where it conflicts with the evidence of Amanda and David, and I accept it. Over the course of the hearing I came to the view that Tom's recollection was more reliable than Amanda's and David's, and was consistent with the probabilities, having regard to the circumstances in which the November agreement was terminated on 26 February 2006, and the history of the relationship overall. 213The suggestion that his Honour was "scathing" is not justified. However from the defendant's point of view the measured findings of the trial judge may have felt that way. The defendant also claimed in the material on the Website that the trial judge portrayed the plaintiff "as the victim in the whole sorry mess". There is nothing within the transcript or judgment that justifies the conclusion that his Honour regarded the plaintiff as "the victim". 214The defendant's statements in respect of the trial judge advising her to "move on" and not allowing her to pursue certain aspects of her cross-examination need to be viewed in the light of a reading of the whole of the transcript. The trial judge took care to ensure that the defendant was focused on the issues for determination in the trial. It was false to suggest that the trial judge criticised the defendant for being "self represented". This was a baseless claim that the defendant perpetuated in her submissions during the hearing of the present proceedings (tr 55). 215It was also false to claim that the trial judge told the defendant to "move on" in circumstances where she was entitled to ask further questions on a relevant topic. Indeed at one stage, the defendant herself suggested she should "move on" as the following exchange demonstrates (tr 152-154): HH: I'm just wondering where this goes in your own interests, if I may say so. I would have thought you would be concerned with focusing on the conversations which you say you rely upon to establish this agreement or arrangement that you're contending for as opposed to perhaps - or perhaps more significantly than you going into all of the history of the matter such as this prior to the settlement, and so on. DS: I guess I'm trying to establish, your Honour, how a property that was valued by two valuers as only being worth around $1.2 million was sold, or was - Mr tate says he had an offer for of $1.6 million plus 11 forestry bonds with a proposed face value - and I will get to the forestry bonds later - of $1 million. HH: Well, that may come a bit later. But I'm just wondering whether -- DS I will try and move on. HH --what you really need to do is get on the core of your case, the things that you have no doubt thought about and need to establish in order to succeed. Now, you have got the material there and no doubt you have appreciated that there are important incidents and discussions and events between you that you rely upon to establish that there was this arrangement for which you contend. Now, maybe later on, after we are moving chronologically through it, there is a sale of the property and negotiations for it that you wish to spend some time on. I thought that you may want to consider getting to what really gets to the heart of your case, or establishes what you are trying to do, the agreement or joint venture, or whatever it is you are trying to do. 216A short time after this and after there was an objection to a question asked by the defendant of the plaintiff, the following exchange took place (tr 154): HH: [Counsel] is fair in taking that point. It will help me to. You need to bear in mind times. If there was a particular occasion - no doubt he knew you were in this position and there were documents or letters that passed between you. You need to get the chronology there, otherwise reading the transcript does not mean much. DS: Sorry. I wil probably be able to work on this more tonight because I expect to be cross-examining Mr Tate for a reasonable amount of time. HH: You still have to move along. This is the Supreme Court and a lot of people are waiting to get into it. We need to move along. I am sure you will be prepared. 217This exchange shows that there was a suggestion to "move along" in the sense of making sure the case was conducted with efficiency. It was not in any way suggesting that the defendant was being shut out by a demand that she "move on". 218A little later in the proceedings counsel for the plaintiff objected to a further question asked by the defendant. The trial judge informed the defendant that she needed to "deal with" that objection and the following exchange took place (tr 175): DS: Right. HH: Before you are entitled to ask the question. DS: My contention is that there was currently a share sale agreement in place with Mr Kovacevic on 30 November, yet in January Mr Tate made an offer to us to sell 50% of Wamego to us. HH: Well, I suppose the objection has been taken, as I understand it, as to the circumstances in which that offer was made. Now, I won't say any more than that, and query whether that was an open offer or whether it was a without prejudice in the litigation that was going on, as it changes-- DS: There was an injunction. HH: Right. Was this offer made to you without prejudice? DS: I would have to check on that. HH: That's the point of the objection, you see. Maybe you can move onto something else and check on it if you want to come back to it. 219Far from suggesting that the defendant would be shut out by a demand that she "move on", the trial judge was clearly trying to ensure that the defendant had time to check something and come back to it if she wished but in the interim to utilise the Court time to proceed with another topic. 220The plaintiff contended that the defendant seriously misrepresented what occurred in the Lavington proceedings. I agree. The defendant chose not to use the proper mechanism of appeal to test the correctness of the trial judge's findings. The defendant then published to the world in Chapter 7 of her story on the Website what purports to be a proper ground of appeal (failure to grant an adjournment) when it was totally false and, I am satisfied, false to the defendant's knowledge. The defendant took every opportunity to make false claims about the trial judge's conduct to prop up her unjustified claims that the legal system had failed to deliver justice and fair play and had allowed "criminals" to "operate undetected and unaccountable". 221The plaintiff contended that the statements on the Website were made mala fides and do not fall within the right to criticise, an exception to an action for contempt. It was submitted that there can be no reasonable doubt that the publication of the Website amounted to a contempt of Court being calculated to undermine public confidence in the Court and its officers. 222On a reading of the Website as a whole I am satisfied that it was calculated to assert that an injustice had been perpetrated against the defendant, her husband and Dunlec in the Lavington proceedings; that the trial judge had dealt with the defendant callously and unfairly in circumstances of a family crisis; that the decision reached by the trial judge was unjustified; and that it is impossible to obtain justice before the Court because it fails to brings criminals to account. This is compounded by the sinister suggestion in the Foreword to the story of Amanda that money "can buy some people off, buy others out of trouble or even keep them out of jail". 223I am satisfied beyond reasonable doubt that these misrepresentations and statements in the material on the Website were calculated to impair the confidence of the people in the Court's judgments and lower the authority of the Court and amount to scandalising the Court. I am satisfied that it was part of the defendant's aim to hurt the plaintiff by bringing into disrepute and lowering the dignity of the system of justice that found in his favour. It was part of the defendant's plan to exact a reprisal against the plaintiff for successfully defending the Lavington proceedings. 224I find the defendant guilty of contempt of Court on Charge 5 in the Statement of Charge filed on 5 December 2013. Charge 6 - Destruction of documents 225Charge 6 is as follows: The defendant has, since at least 10 September 2013, wrongfully and wilfully destroyed documents relevant to a fact in issue in these proceedings. Particulars of Charge (A) On 10 September 2013, the plaintiff served on the defendant a notice to produce dated 10 September 2013 and requiring the production of documents relating to her communications with persons she called the "webmasters", whom the defendant claims are responsible for publication of the websites. (B) By email dated 10 September 2013, the defendant informed the plaintiff's solicitors that: (i)she had no documents to produce in answer to the notice to produce; (ii)she had destroyed documents relevant to a fact in issue in the proceeding, namely the identities of the "webmasters"; and (iii)she would continue to destroy all documents created during the course of these proceedings and concerning the websites. 226The plaintiff served two Notices to Produce on the defendant seeking documents tending to identify the "webmasters" including the defendant's communications with the "webmasters". By her letter dated 10 September 2013 the defendant alleged that the plaintiff's solicitors were on a "fishing expedition; and that she had "deleted any emails in relation to anything to do with" the Website and that she was going to "continue to do so". 227During the hearing of these proceedings the defendant sought to draw the distinction between deleting emails and destroying documents (tr 142). However the defendant also said (tr 55): And they accuse me of getting rid of Court records. Well your Honour, the only reason I thought it was all right to destroy records is because that is exactly what they had done. 228This was not a submission but rather an attempt to give evidence from the Bar Table. I do not intend to take this as an admission of the destruction of documents. Rather I will deal with the matter on the evidence that has been admitted. 229The plaintiff submitted that if it is the case that the defendant persists in her contention that she was corresponding with "webmasters", and if she is to be believed, it is the case that by deliberately deleting these documents she has adopted a course knowingly intended or likely to impair the proper administration of justice. It was submitted that this too is a contempt of Court. 230The defendant is an experienced local government politician. I am satisfied that she is and was well aware of the need to ensure that documents pertinent to issues in dispute in litigation should not be destroyed. 231Some of the claims made by the defendant in her correspondence with Hickeys are quite extraordinary. There was no reticence in her correspondence of July 2013 with Hickeys to claim that she was in control of the Website. The suggestion just four weeks later that she surreptitiously went to public libraries to use the Internet so that she would have no documents in her possession and then deleted all emails at the request of the so-called "webmasters" is very hard to reconcile with her earlier claims. 232The change in approach between the letters of July 2013 and after the proceedings were instituted in August 2013, shows a course of conduct in which the defendant sought to distance herself from the capacity to control the Website and thus to do as the plaintiff asked - to have the Website suspended and access to it blocked. When she informed the plaintiff's solicitors that she intended to continue to destroy the emails in the face of a Notice to Produce, she defiantly and in my view contemptuously refused to comply with proper due process. This conduct of the deletion of the emails, which I am satisfied beyond reasonable doubt occurred, was calculated to interfere with the proper administration of justice. This conduct was in contempt of Court. 233I find the defendant guilty of contempt of Court on Charge 6 in the Statement of Charge filed on 5 December 2013. Charge 7 - Failure to comply with Court Order 234Charge 7 is as follows: The defendant has, since 27 September 2013, failed to comply with orders 1 and 2 of the Court dated 27 September 2013 restraining the defendant's publication of the website. Particulars of Charge (A) The plaintiff repeats particulars (B) and (G) of [1] above. (B) On 27 September 2013, upon the plaintiff through his senior counsel giving the usual undertaking as to damages, the court made interlocutory orders, pending further order of the court, requiring the defendant, among other things, immediately to take all necessary steps to cause publication of the website referred to in [1] above (the websites referred to in [2] and [3] above being at that time unknown to the plaintiff and his solicitors); (C) On 27 September 2013, the plaintiff's solicitors wrote to the domain name internet host and requested the suspension of the website referred to in [1] above; see email from Hickey Lawyers to Maxiiweb dated 27 September 2013; (D) On 2 October 2013, the internet host suspended publication of all the websites; (E) On 3 October 2013, the domain name www.tomtatescam.com (and thus its associated website which is referred to in [1] above) were moved to a new domain name internet host, outside the jurisdiction of the New South Wales Supreme Court; (F) On 3 October 2013, publication of the website referred to in [1] above resumed. 235This is a charge of non-compliance with a Court order and as indicated earlier is traditionally referred to as a "civil contempt". However the plaintiff asked the Court to determine this particular Charge in accordance with the criminal standard, beyond reasonable doubt. There was no penal notice contained in the Order served on the defendant: 40.7(3) UCPR. The plaintiff's solicitor sought to rectify this by including a form of notice in his email. In any event the fact that a penal notice was not contained in the Order that was served does not prevent a finding of contempt being made. Rather its absence is relevant to the form of punishment that may be imposed: Westpac Banking Corporation v Burke [2011] NSWSC 549 at [21]. 236As at the date of the trial the Website continued to be published. Thus it was submitted that the defendant has manifestly failed to comply with the Court's orders made on 27 September 2013. It was also submitted that the defendant has taken extraordinary steps to ensure that publication is continued in the face of those orders by causing the Website to be moved to a hosting server located outside the jurisdiction (Panama Servers) to ensure the continued publication. When the Website was once again published after it was suspended in October 2013 it was in a different form because the offending Forestry Bond was removed and was replaced with a different Forestry Bond. A finding of contempt on Charge 1 has already been made against the defendant in respect of that publication. 237The terms of orders made on 27 September 2013 relevant to this Charge were as follows: 1. Until further order of the court, the defendant immediately take all necessary steps to cause publication of the webpages comprising the website located at the domain http://www.tomtatescam.com to cease. 2. Until further order of the court, the defendant refrain from further publishing the copy of the forestry bond identified by certificate number 002, which the plaintiff's legal representatives, Hickey Lawyers, sent by facsimile to the defendants former legal representatives, Kemp Strang, on 15 February 2008) (the relevant copy comprising page 3 of the facsimile). 238The expression "necessary steps" in order 1 is not free from complexity. There is some uncertainty as to what might be a "necessary" step in the circumstances. For instance, a person may take steps that are thought to be in compliance but that are not causative of the cessation of the publication of the Website because some other person has taken steps to cause its cessation. There is also tension between the concept of "until further order" and doing something "immediately". A reasonable reading of the order is that if steps are taken immediately and the publication ceases, the order is spent notwithstanding the presence of the words "Until further order". This would be so irrespective of whether the steps were causative of the cessation of publication. 239Order 2 required the defendant to refrain from further publishing the Forestry Bond. This appears to be cumulative on Order 1 because the Forestry Bond was part of the Website. The order appears to envisage that after cessation of the publication of the whole Website, there was a restraint on any further publication of the Forestry Bond. However it may be a stand-alone order prohibiting the publication of the Forestry Bond through any means, Internet or otherwise. The Forestry Bond has not been "further" published. 240The defendant relied upon her emails addressed to the "Webmasters" to submit that the steps that she took after the order was served were in compliance with the order. The fact is that the Website, the subject of the orders of 27 September 2013, was suspended and the Forestry Bond, the subject of the order, was removed. However the cessation of the publication of the Website when it was suspended in October 2013 occurred as a result of steps taken by Hickeys. Those intervening steps by Hickeys prevent a proper assessment of whether the steps taken by the defendant were in compliance with the order. 241 This charge is non-compliance with a court order. The fact that some other contempt has been committed (the subject of Charge 1) does not mean that there was non-compliance with these orders. Having regard to the matters referred to above I do have a reasonable doubt in respect of this Charge. 242I find the defendant not guilty of Charge 7 in the Statement of Charge filed on 5 December 2013. Findings 243I find the defendant, Amanda Duncan-Strelec, guilty of contempt of Court on Charges 1, 2, 3, 5 and 6 in the Statement of Charge filed on 5 December 2013. 244I find the defendant, Amanda Duncan-Strelec, not guilty of contempt of Court in respect of Charges 4 and 7 in the Statement of Charge filed on 5 December 2013. 245I will hear the parties on the form of consequential orders and I will hear the defendant in respect of any punishment that may be imposed in respect of the findings of contempt of Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2014