(1998) 90 FCR 354
Mahaffy v Mahaffy [2018] NSWCA 42
(2018) 97 NSWLR 119
McGuirk v University of New South Wales [2009] NSWSC 1058
R v Dunbabin
Ex parte Williams [1935] HCA 34
(1935) 53 CLR 434
R v Gray [1900] 2 QB 36
Re Colina
Source
Original judgment source is linked above.
Catchwords
(1998) 90 FCR 354
Mahaffy v Mahaffy [2018] NSWCA 42(2018) 97 NSWLR 119
McGuirk v University of New South Wales [2009] NSWSC 1058
R v DunbabinEx parte Williams [1935] HCA 34(1935) 53 CLR 434
R v Gray [1900] 2 QB 36
Re ColinaEx parte Torney [1999] HCA 57
Judgment (12 paragraphs)
[1]
Summary
These proceedings are the second set of contempt proceedings to come to judgment between these parties.
The Plaintiff, Thomas Tate, is the current Mayor of the Gold Coast and has held that position since April 2012 (the "Plaintiff"). The Plaintiff is also a property developer and tourism industry operator on the Gold Coast. The Defendant, Amanda Duncan-Strelec (the "Defendant"), was formerly Mayor of Albury. She met the Plaintiff in 1999 when the Defendant was the Plaintiff's campaign manager in his first, unsuccessful, campaign to become Mayor of the Gold Coast. The Plaintiff and the Defendant became friends and were also business partners.
The relationship soured after the parties entered into a commercial project together to develop land at Lavington in New South Wales. In 2006, the Defendant, her husband, David Strelec, and a company of which they were then directors, Dunlec Pty Ltd, commenced proceedings against the Plaintiff, his wife and a company of which the Plaintiff was a director, Wamego Pty Ltd, and asserted various claims regarding the development of the land.
Those proceedings were heard by Nicholas J. By a judgment delivered on 6 August 2010 his Honour dismissed the claim. The Defendant and her co-plaintiffs were ordered to pay the Plaintiff's costs and those of his wife and Wamego Pty Ltd. The Defendant and her co-plaintiffs did not appeal from this judgment.
The costs orders made by Nicholas J were enforced with the result that Dunlec Pty Ltd was wound up in April 2011 and the Defendant and her husband were made bankrupt in June 2012.
On about 17 June 2013, the domain www.tomtatescam.com (the "Previous Domain") was registered. Shortly thereafter a website (the "Previous Website") was published at the Previous Domain containing information and commentary on the proceedings heard by Nicholas J. One thing the Previous Website did not include was a copy of his Honour's judgment.
On 9 August 2013, the Plaintiff commenced proceedings in respect of the Previous Website for defamation and contempt. The Court ordered those different claims to be separated and on 5 December 2013 the Plaintiff filed a fresh summons and statement of charge in respect of the claims of contempt.
Those first contempt proceedings were heard by Bergin CJ in Eq. The Defendant appeared in person. Her Honour was satisfied beyond reasonable doubt that, despite the Defendant's denials, the Previous Domain and Previous Website were controlled by the Defendant and that the Defendant:
1. published or caused to be published the Previous Website at the Previous Domain in a manner calculated to exact a reprisal against the Plaintiff for successfully defending earlier court proceedings commenced by the Defendant (at paragraphs [158], [166] and [167] of her Honour's judgment); and
2. caused the website at the Previous Domain 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 (at paragraphs [193], [223] and [224] of her Honour's judgement).
Her Honour found the Defendant guilty of contempt and sentenced her to be of good behaviour for a period of 12 months from 10 March 2015.
The Plaintiff discontinued the separate defamation proceedings on 21 August 2015.
These reasons should be read with:
1. The judgment of Nicholas J in Amanda Duncan-Strelec & Ors v Thomas Richard Tate & Ors [2010] NSWSC 872 (the "Primary Judgment" and the "Lavington Proceedings");
2. The judgment of Bergin CJ in Eq in Tate v Duncan-Strelec [2014] NSWSC 1125 (the "Contempt Judgment" and the "First Contempt Proceedings"). In particular, I gratefully adopt and apply her Honour's, with respect, comprehensive exposition of the relevant legal principles; and
3. The judgment of Bergin CJ in Eq in Tate v Duncan-Strelec [2015] NSWSC 190 (the "Sentencing Judgment").
The Defendant's sentence to be of good behaviour came to an end in March 2016. These proceedings concern:
1. the publication of a website (the "Reprobate Website") from as early as 24 November 2016 at the domain name www.tomtatereprobate.com (the "Reprobate Domain"); and
2. the promotion of the Reprobate Website by an internet fundraising campaign (the "Go Fund Me Campaign") from as early as 7 January 2017 at the domain name http://gofundme.com/the-pursuit-of-justice (the "Go Fund Me Website").
The Reprobate Website contained material that was either identical or substantially similar to the material which was considered in the Contempt Judgment. Those similarities are demonstrated by Schedule A to these reasons, which include references to where like passages were dealt with in the Contempt Judgment. It is the extent of those similarities that primarily informs the Court's conclusions in these proceedings.
After orders were made by this Court (see paragraph [24] below), the Reprobate Website and the Go Fund Me Website ceased to be accessible from on or about 26 March 2018.
The four charges in these proceedings are:
1. The Defendant has, since at least 29 November 2016, caused the Reprobate Website located at the Reprobate Domain to be published and further to be promoted on the internet 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 (the "Lavington Proceedings") and having obtained a costs order in his favour against the Defendant, among others.
2. The Defendant has, since at least 29 November 2016, caused the Reprobate Website to be published on the Reprobate Domain and to be promoted via the Internet Promotion (this term is defined in the particulars set out in paragraph [63] below) with the aim of lowering the authority of the Court as a whole, or that of its judges, in a manner thus calculated to impair public confidence in the Court and its judicial determinations.
3. The Defendant has, since at least 7 January 2017, caused the Go Fund Me Campaign to be published and further to be promoted on the internet 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.
4. The Defendant has, since at least 7 January 2017, caused the Go Fund Me Campaign to be published and further to be promoted on the internet with the aim of lowering the authority of the Court as a whole, or that of its judges, in a manner thus calculated to impair public confidence in the Court and its judicial determinations.
The Court is satisfied beyond reasonable doubt, for substantially the same reasons as those set out in the Contempt Judgment, that the Defendant was the publisher of the Reprobate Website and the Go Fund Me Website (including the Go Fund Me Campaign) and that she is guilty of each of the four charges.
Where there were passages on the Reprobate Website that were identical or substantially identical to those considered in the Contempt Judgment and were the subject of express findings in the paragraphs of the Contempt Judgment set out in Schedule A, I respectfully adopt and make the same findings in relation to the same passages on the Reprobate Website. This relates to the passages identified in sections 6, 8, 12, 13, 14, 17 and 18 of Schedule A. Furthermore, although not repetitive of the Previous Website, I find:
1. the passage set out in section 23 of Schedule A to be false for the same reasons set out in paragraph [214] of the Contempt Judgment in relation to Nicholas J's attitude to self-represented litigants; and
2. the words "no adjournment offered" set out in section 28 to be seriously and deliberately misleading by the implication that one should have been offered and omitting to mention that no adjournment had been sought or refused. The use of these words is a transparent but unsuccessful attempt to circumvent the conclusion in paragraph [210] of the Contempt Judgment that it was false to have made the claim on the Previous Website that the trial judge had failed to allow an adjournment in the circumstances there described.
In reaching the conclusion set out in paragraph [16] above, particularly in circumstances where there was no appearance for the Defendant, I have steadfastly borne in mind these propositions (which were not disputed by the Plaintiff):
1. The applicable standard of proof is satisfaction beyond reasonable doubt; and
2. Given these proceedings are for criminal contempt, no adverse inference can be drawn against the Defendant by reason of her failure to give evidence (or participate in the proceedings at all).
I have carefully reviewed the evidence of the websites' content so as to appreciate the context of the material to which the Plaintiff drew particular attention. In doing so, I have also borne in mind that the outcome of the First Contempt Proceedings was not necessarily conclusive of the outcome of these proceedings, although it will be a matter that I expect the Court will be invited to take into account on penalty.
At the hearing before me the Plaintiff was represented by Ms G.R. Rubagotti of Counsel. The Defendant did not appear and was not represented at the hearing. Ms Rubagotti provided detailed written and oral submissions which, together with the evidence adduced by the Plaintiff, I accept, and which I have substantially adopted as the basis of the Court's reasons below.
[2]
Procedural history
These proceedings were commenced on 22 March 2018 by a summons dated 21 March 2018, which was supported by the affidavit of Scott David Eustace dated 21 March 2018, the affidavit of Rodney David McKemmish dated 15 March 2018 and a statement of charge dated 22 March 2018.
The summons sought:
"1. An order restraining the Defendant from publishing or promoting or causing or permitting the publication or promoting of, by any means whatsoever, the website located at the domain name "www.tomtatereprobate.com" or any part thereof.
2. An order restraining the Defendant from publishing or promoting or causing or permitting the publication or promoting of, by any means whatsoever, the internet campaign entitled "Fundraiser by Amanda Duncan' on the website located at the domain name "www.gofundme.com", or any party thereof.
3. An order that the Defendant take all necessary step [sic] to transfer, or otherwise to cause to transfer, the domain name "www.tomtatereprobate.com" to the Plaintiff.
4. An order that the Defendant be found guilty of contempt by reason of the matters charged in the Statement of Charge filed with this Summons.
5. An order that the Defendant be convicted and made liable to such punishment as the Court may in its discretion direct for her contempt of this Court.
6. Costs.
7. Such further or other orders as the Court seem fit."
By a separate notice of motion filed on 22 March 2018 the Plaintiff sought interlocutory injunctions restraining the Defendant from, among other things, publishing or promoting the Reprobate Website at the Reprobate Domain or the Go Fund Me Website.
That application was heard by Hallen J on 22 March 2018. His Honour granted this interlocutory relief:
"1. Orders that, until 5:00 p.m. on Tuesday, 27 March 2018, the Defendant remove or cause to be removed the website linked to the domain name "www.tomtatereprobate.com", and the content of the website, from the webserver administered by Ventra IP Pty Limited.
2. Orders that the Defendant comply with Order 1 by no later than 11:59 p.m. on Friday, 23 March 2018.
3. Orders that, until 5:00 p.m. on Tuesday, 27 March 2018, the Defendant not publish or cause to be published, on any webserver, the website located at the domain name "www.tomtatereprobate.com" or any part thereof insofar as it refers to the Plaintiff or to the Court.
4. Orders that, until 5:00 p.m. on Tuesday, 27 March 2018, the be restrained from transferring, or causing, or permitting the transfer of, the domain name "www.tomtatereprobate.com" to another domain name registrar.
5. Orders that, until 5:00 p.m. on Tuesday, 27 March 2018, the Defendant cease the publication of the internet campaign entitled 'Fundraiser by Amanda Duncan' on the website located at the domain name "www.gofundme.com", or any part of that campaign.
6. Orders that the Plaintiff serve a copy of the following documents on the Defendant by 8:00 p.m. on 22 March 2018 by sending them to the Defendant's email address, XXX: these orders, the Summons, the Statement of Charge, the notice of motion, the affidavits, a 'hightail' link to exhibit SDE-1 and the Plaintiff's submissions (the 'relevant documents').
7. Orders that the Plaintiff also serve the relevant documents on the Defendant by noon on Friday, 23 March 2018 by leaving them at her last known residential address.
8. Orders that the matter be listed before the Equity Duty Judge at 2:00 p.m. on Tuesday, 27 March 2018."
The operation of these interlocutory injunctions was extended on 27 March 2018, 15 May 2018 and again on 22 May 2018. By the last-mentioned order, the injunctions were extended until further order of the Court.
On 22 May 2018, the Defendant (who did not appear) was ordered to file any evidence in answer by 19 June 2018. A copy of the Court's order was provided to the Defendant by email on 22 May 2018.
On 24 July 2018, the Court ordered that by 31 July 2018 the Defendant file an affidavit setting out:
1. an outline of the evidence she intended to file in these proceedings;
2. the reasons for her non-compliance with the orders made on 22 May 2018; and
3. the reasons why she would be unable to complete her evidence by 7 August 2018.
On 30 July 2018, the Defendant filed an affidavit (the "Defendant's Affidavit") describing her occupation as "retired" and included these paragraphs that were tendered at the hearing before me by the Plaintiff:
"2. On 24 July 2018 the Court made orders that by 31 July 2018 that I, as the Defendant file an affidavit stating:
a) an outline of the evidence I intend to file
b) the reasons for my non-compliance with the orders dated 22 May 2018
c) the reasons why I will be unable to complete my evidence by 7 August 2018
3. In response to order 1(a), I wish to advise that the evidence I intend to file, when well enough to finish my research and prepare my findings, is of such a voluminous nature that it will require many days and weeks, if not months to prepare.
4. To date I have downloaded over fifty files, including: television news reports from all three commercial stations as well as the ABC (in particular the ABC Four Corners story titled "All That Glitters"), Youtube clips, Supreme Court of Queensland searches, newspaper articles and facebook posting and other online postings.
…
16. As I intend to use much of the material I have uncovered through my research to support my Defence in this matter, and as I am self-representing due to lack of funds, I will need an extensive period of time to thoroughly and properly search and prepare my case."
On 1 August 2018, these proceedings were again before the Court. The Defendant did not appear. Orders were made setting down the proceedings for hearing on 30 and 31 January 2019, for the Defendant to file any evidence by 26 October 2018 and to file written submissions by 7 December 2018. The Plaintiff's lawyers informed the Defendant of these orders by email on 1 August 2018. Other than the Defendant's Affidavit, the Defendant has filed neither evidence nor submissions.
At the commencement of the hearing before me, the Plaintiff filed the affidavit of his solicitor, Mr Scott David Eustace, sworn 29 January 2019. Mr Eustace's affidavit attached copies of unanswered emails sent by him to the Defendant on 18 December 2018 and 16 January 2019 enquiring whether the Defendant would be appearing at the hearing on 30 and 31 January 2019. A further unanswered email of 25 January 2019 noted that the Defendant had not indicated if she would appear and put the Defendant on notice that orders may be made in her absence if she did not appear. There was no appearance for the Defendant when the matter was called on for hearing before me.
[3]
How these proceedings came about
On 24 November 2016, a party, prima facie unknown to the Plaintiff, caused the Reprobate Domain to be created and registered. By letter of instruction dated 21 February 2018, the Plaintiff's solicitor retained Mr Rodney McKemmish, a forensic technology specialist, to prepare an expert forensic report in relation to websites published at the domain names "tomtatereprobate.com" and "gofundme.com/the-pursuit-of-justice". Mr McKemmish was asked to address the following issues:
"1. Please provide a brief explanation of how domain names are created and are maintained and how website files are housed, served, maintained and ultimately published on the internet.
2. Please identify the class of entities involved in the process identified in 1 above.
3. Please identify the class of entities involved in creating and maintaining the reprobate domain.
4. Please identify the class of entities involved in housing, serving, maintaining and ultimately publishing the reprobate website.
5. Please identify the persons or entities or both capable of ceasing the publication of the reprobate website and the reprobate domain.
6. Please indicate whether any particular entities involved in the maintenance of the reprobate domain and the reprobate website are likely to hold information tending to identify the member or members of the public who caused the domain and website to be created and the nature of the identifying information likely to be held.
7. If Mr Tate were to commence proceedings in an endeavour to have the reprobate website removed from the internet, putting aside the member of the public responsible for its publication, against which entities should he commence proceedings.
8. Please provide a brief explanation of how the gofundme.com crowd funding website operates.
9. Please identify the persons or entities or both capable of ceasing the publication of the campaign page.
10. Please indicate whether the operator of the gofundme.com crowd funding website is likely to hold information tending to identify the member or members of the public who caused the campaign page to be created and the nature of the identifying information likely to be held."
Mr McKemmish furnished his report to the Plaintiff's lawyers on 14 March 2018 (the "Forensic Report"). In the executive summary to the Forensic Report, Mr McKemmish concluded, and the Court accepts, that "The domain name "TomTateReprobate.com" is registered with Ventra IP Pty Ltd, who also currently host the website linked to "TomTateReprobate.com". The owner of the domain is marked as "Private". This conceals the Registrant's identity."
The Executive Summary to the Forensic Report also included the following:
"c) As the registrar and hosting service provider for the domain name "TomTateReprobate.com" I would expect [Ventra IP Pty Ltd] to hold the following information with regard the owner of the domain name and associated website:
a. Name and billing address
b. Payment details (i.e. Credit card or debit card details)
c. Contact email address
d. Date of transaction
e. Contact phone number"
On the first day of the hearing I asked Ms Rubagotti if her client had evidence that the Defendant was in fact the owner of the named "TomTateReprobate.com" domain and website. The following exchange took place (T6:18-47):
"HIS HONOUR: Thank you. Can I ask you this? I did have a very quick look at the submissions … but in terms of ascertaining who is operating the new website, is it not possible to subpoena the domain provider to find out who is behind the website?
RUBAGOTTI: The difficulty, I believe, with that is that we do have an affidavit from a Rodney David McKimmish. The answer is we can subpoena the domain provider and some information may have been available to indicate who operates it, although, it is not entirely clear whether that information would then lead to the identification of the Defendant.
HIS HONOUR: Because as I understand it, that's a significant factual matter you're going to have to--
RUBAGOTTI: To overcome.
HIS HONOUR: --satisfy me of, that she's in fact behind it, to use that expression.
RUBAGOTTI: Yes, I understand that. We will be relying upon an admission that she makes in email correspondence and also, to the extent that it assists, the affidavit that she has sworn where she doesn't deny the publication but, in fact, seems to defend her publication and also the nature of the publication itself and publications on other websites. But, yes, your Honour, we could have subpoenaed the host, it is not clear that the information that they would have would in fact lead to the identification of the Defendant.
HIS HONOUR: I see.
RUBAGOTTI: But I accept what your Honour says."
At some stage, the Reprobate Website was published at the Reprobate Domain Name. The home page for the Reprobate Website contained the following text:
"TO DONATE TO THIS CAUSE PLEASE GO TO
Gofundme.com/the-pursuit-of-justice
My name is Amanda Duncan-Strelec. I am the mother of three children, now all adults.
I am asking for your financial help to fund an Appeal from a Judgement of a Justice of a Supreme Court to a Court of Appeal."
As at 20 March 2018, the Reprobate Website included a link to the Go Fund Me Website. A print out of the first three pages of the Go Fund Me Website is Schedule B to these reasons.
The Go Fund Me Website appeared to have been created on 7 January 2017. Mr McKemmish reported, and the Court accepts, that "The GoFundMe "The Pursuit of Justice" campaign was managed by a user account in the name of "Amanda Duncan"." It appeared to have attracted donations from as early as 14 months before March 2018 i.e. January 2017.
As is set out in items 1 to 22 of Schedule A, the Reprobate Website substantially repeated the publication which gave rise to the First Contempt Proceedings.
[4]
Issues for determination: publication and contempt
The following matters arise:
1. Whether the Defendant is responsible for the publication of the Reprobate Website on the Reprobate Domain and the Go Fund Me Website; and
2. If so, whether publishing the Reprobate Website on the Reprobate Domain and the Go Fund Me Website constitutes any or all of the four contempts charged.
The Plaintiff accepted that if the Court found the Defendant guilty of any of the charges, it would be appropriate for the Defendant to be heard on the question of the orders to be made and, in particular, penalty.
[5]
Reprobate Domain
As was apparent from the Forensic Report, the identity of the Reprobate Domain holder was not publicly available. The person who caused the registration to be recorded enabled domain privacy protection thus preventing the disclosure of identifying information. Nevertheless, for the reasons which follow, the Court accepts the Plaintiff's submission, and is satisfied beyond reasonable doubt, that the Defendant caused the registration of the Reprobate Domain and the creation of the Go Fund Me Website, and at all times had control over the information published on the Reprobate Website and the Go Fund Me Website.
The Defendant's responsibility for the content of the Reprobate Website and Go Fund Me Website was apparent from what I accept was an admission contained in her email to the Plaintiff's solicitor dated 9 July 2018, being after the commencement of these proceedings (emphases added):
"While doing my research on your client in preparation for my evidence in response, I was amazed at the plethora of negative material on the internet in relation to your client. …
For your convenience, I have attached a number of these articles and film clips below. …
This beggars (sic) the question, which I will be asking your client under cross, whether he has also pursued most of the authors of these articles for defamation. If not, why not? After all, many of them are publishing far more damaging material than I published. I merely told the truth, as many of these articles also appear to be doing.…
I believe your client is … using the Court to extract revenge on myself and others for publishing the truth about his conduct. … I have also been informed that your client has developed the habit of taking legal action against any person who publicly criticises him. Perhaps this is why he has taken action against me…"
[6]
Reprobate Website
In addition to the foregoing, the Court also infers from the following matters that the Defendant is responsible for publishing the Reprobate Website.
First, on 22 March 2018, the Plaintiff's solicitor notified the Defendant of the Court's orders granting interlocutory relief against her (see paragraph [24] above setting out Hallen J's orders).
On 26 March 2018, the Defendant responded in an email stating:
"I wish to advise you that both the website and the gofundme page have, to the best of my knowledge, been removed in compliance with the orders of the Court."
I accept Mr McKemmish's unchallenged evidence in the Forensic Report that the only persons capable of causing the publication of the Reprobate Website and the Reprobate Domain to cease are the owner of the Reprobate Domain or Ventra IP Pty Ltd ("Ventra IP") as the Reprobate Domain registrar and Reprobate Website hosting service provider. Similarly, the only persons capable of terminating the publication of the Go Fund Me Website were the 'GoFundMe' business or the account owner for the Go Fund Me Website.
On 22 March 2018 the Plaintiff notified Ventra IP of the Court's interlocutory order and on the same day received confirmation from Ventra IP that the Reprobate Website had been disabled. However, it took no such steps to notify the 'GoFundMe' business, but it was the Defendant who reported that the Go Fund Me Website had been taken down.
In these circumstances, the Court infers that the Defendant was the account owner for the Go Fund Me Website and therefore also the owner of the Reprobate Website with which it was mutually linked.
Second, I regard the fact that the large extent to which the Reprobate Website contained material that was substantially identical to that contained in the Previous Website as being highly probative of the Defendant's responsibility for the Reprobate Website. As I have already noted, selected extracts of both websites that are sufficient to demonstrate the similarities are reproduced at items 1 to 22 of Schedule A together with a paragraph reference where the extract was considered by the Court in the Contempt Judgment (where applicable).
Bergin CJ in Eq accepted in the Contempt Judgment that the Previous Website was published or caused to be published by the Defendant (see paragraph [8] above). The Court infers from the substantial similarity of content as shown in items 1 to 22 of Schedule A, that the Defendant is also the publisher of the Reprobate Website.
Third, the Court relies on the content of the Reprobate Website to the extent that, similarly to the Previous Website:
1. it primarily constituted a public forum for the Defendant's ventilation of her dissatisfaction with the outcome of the Lavington Proceedings;
2. it published a detailed critique of the conduct of the Lavington Proceedings written from the perspective of the Defendant;
3. it published the transcript of the Lavington Proceedings;
4. it published numerous documents admitted into evidence in the Lavington Proceedings; and
5. it published a forestry bond which was not in evidence in the Lavington Proceedings but was provided to the Defendant's then solicitors in those proceedings.
Fourth, there were statements contained on the Reprobate Website which appeared to be directly written by the Defendant and related specifically to her grievances with the Plaintiff:
1. On the 'Home' page, there was a link to a detailed page entitled 'My Story' and, further, the following:
"My name is Amanda Duncan-Strelec. I am the mother of three children, now all adults.
I am asking for your financial help to fund an Appeal from a Judgement of a Justice of a Supreme Court to a Court of Appeal.
…
You will read how Thomas Richard Tate, the current Mayor of the Gold Coast City Council, under the guise of friendship, deliberately and with pre-meditation, cheated my family out our property and ultimately our livelihood.
…
Between these two legal firms, they made sure that due to deliberate and constant delays and bleeding us of every last cent we could spare, we had no money left to fund the case and I was forced to self-represent against not one, but two, Senior Counsel in a four day case. I clearly didn't stand a chance, but I gave it the best I could under the circumstances, even though I had a Judge who made it clear to me from the start of the case that he did not like dealing with litigants who self-represented. (The full transcript of the trial is included on this website.)
…
Tom Tate has shown, by his duplicitous conduct (to put it mildly), that he is not a fit person to hold public office and should be made accountable for both his past and current conduct. The only way to do that is not only by due-process through the legal system, but also through the Court of public opinion based on the indisputable facts (the chronology), presented on this website, which I would recommend you read prior to reading my story.
Thank you for reading my story, If you believe in justice for all, not just those who can afford it, please support my cause. No matter how small your contribution may be, it all helps.
Amanda Duncan-Strelec"
1. On the 'My story' page, there was this admission about the Defendant's responsibility for publishing the Previous Website:
"I have already been sued once for defamation by Tom Tate for putting up a website warning the community of his conduct."
1. On the 'Download Supporting Documents' page there was a document entitled 'Surfers Paradise Bowls Club' containing a reference to the Defendant and her family:
"When my family and our friends travelled to the Gold Coast in March 2004 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…"
Fifth, on 30 January 2017 the user of a Facebook account operating under the name 'Amanda Duncan' posted a link to the Reprobate Website on a third party's Facebook page entitled "Save our Spit". That post was accompanied by a message stating:
"I have decided to take on Tom Tate. He needs to be exposed for many of the lies he has told. If you are interested in helping me please go to tomtatereprobate.com and read the chronology on the website.…"
The Plaintiff's solicitor has given evidence, which I accept, that he recognises the profile photo on this Facebook page as being a picture the Defendant, the solicitor having previously seen the Defendant in Court when acting for the Plaintiff in the Lavington Proceedings and the First Contempt Proceedings.
[7]
Go Fund Me Website
In addition to the Defendant's admission extracted at [42] above, the Court also finds the Defendant was the owner, or otherwise responsible for, the Go Fund Me Website by reason of the following matters.
First, as I have set out at paragraphs [47] and [48] above, in circumstances where the Defendant confirmed on 26 March 2018 that the Go Fund Me Website had been disabled without any steps having been taken by the Plaintiff's solicitors to contact the 'GoFundMe' business, it can be inferred that the Defendant was the account holder for the Go Fund Me Website.
Second, the Court takes into account the many instances in which the Go Fund Me Website attributed its creation to a person with the Defendant's name, either in full or abbreviated form, including:
1. it identified on its home page the relevant account holder as 'Amanda Duncan';
2. when printed, the Go Fund Me Website showed on all pages the header 'Fundraiser by Amanda Duncan: the pursuit of justice'; and
3. the details revealed when clicking on the account holder's name showed the account holder as 'a dunc' together with a photograph of a woman's face. This appeared to be the same photo that appears on a Facebook page for 'Amanda Duncan'. The Plaintiff's solicitor recognises the person depicted in both photos as the Defendant.
Third, the Go Fund Me Website contained content that, similar to the Reprobate Website and Previous Website, related specifically to the Defendant and her grievances with the Plaintiff:
1. on the home page there was displayed a photo entitled 'Tom Tate and His Mates' which photo is also displayed on the homepage of the Reprobate Website; and
2. the home page also featured the following similar content from the Reprobate Website:
"Thomas Richard Tate, the current Mayor of the Gold Coast City Council, under the guise of friendship, cheated my family out of our property and ultimately our livelihood, sending us bankrupt."
Fourth, the Go Fund Me Website was created on about 7 January 2017 and it appears on 8 January 2017 a link to it was posted to the Facebook page for 'Amanda Duncan-Strelec'. The Plaintiff's solicitor recognises the woman depicted on this second Facebook page as the Defendant.
Fifth, the Go Fund Me Website and Reprobate Website both contained on their home pages links to each other. This further supports an inference that they had a common creator or owner.
By reason of all of the matters set out in above, I am satisfied beyond reasonable doubt and find that the Defendant is the publisher of the material appearing on the Go Fund Me Website including the Go Fund Me Campaign and also the Reprobate Website located at the Reprobate Domain.
[8]
First and third charges: exacting a reprisal on the Plaintiff
It is convenient to consider the first and third charges together.
The first charge is:
"1 The Defendant has, since at least 29 November 2016, caused the website ("Tom Tate Reprobate Website") located at the domain www.tomtatereprobate.com ("Tom Tate Reprobate Domain") to be published and further to be promoted on the internet 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.
Particulars of Charge
(A) The Defendant and others commenced the Lavington proceedings against the Plaintiff and others. The trial was heard by Nicholas J whose reasons for decision are reported at Amanda Duncan-Strelec & Ors v Thomas Richard Tate & Ors [2010] NSWSC 872. The Defendant and her co-Defendants failed and costs were awarded against them.
(B) The Tom Tate Reprobate Website concerns the Plaintiff, the Lavington proceedings and publishes material concerning them, including the transcript of the hearing before Nicholas J.
(C) It may be inferred that the Tom Tate Reprobate Website was published by the Defendant, or under the Defendant's direction and control, such an inference being drawn from:
(i) The content of the website, including content constituting information uniquely available to the Defendant insofar as it constitutes personal detail of her life or was otherwise made available to her during the Lavington proceedings;
(ii) The promotion of the Tom Tate Reprobate Website via a Facebook account in the name of "Amanda Duncan-Strelec", which account bears photos of the Defendant;
(iii) The promotion of the Tom Tate Reprobate Website via a Facebook account in the name of "Amanda Duncan", which account bears photos of the Defendant;
(iv) The promotion of the Tom Tate Reprobate Website via an internet fundraising campaign located at http://gofundme.com/the-pursuit-of-justice ("Go Fund Me Campaign'') which campaign is in the name of "Amanda Duncan" of Lavington NSW and bears a photo of the Defendant (together with the promotions particularised as [1(C)(ii)-(iii)], the "Internet Promotion"); and
(v) The overall similarity, including by repetition, that the content appearing on the Tom Tate Reprobate Website bears with content appearing on websites that this Court found the Defendant published in the proceedings reported at Tate v Duncan-Strelec [2014] NSWSC 1125 (20 August 2014) per Bergin CJ in Eq ("Preceding Contemptuous Websites" and "2014 Contempt Proceedings").
(D) The Tom Tate Reprobate Website is scathing of the Plaintiff and condemns him as a lying, manipulative, narcissistic criminal who deliberately and with premeditation sought to destroy the Plaintiff, her husband, their company and their family by his conduct which was the subject of the Lavington proceedings, by his defence of the Lavington proceedings, by his enforcement of the costs order awarded in his favour in the Lavington proceedings and by his action to prevent the publication of the Preceding Contemptuous Websites.
(E) The Defendant's motivation for her conduct may be inferred from the content of the Tom Tate Reprobate Website, the Go Fund Me Campaign and the Internet Promotion via Facebook and the Go Fund Me Campaign, which content reveals:
(i) The Defendant's view that the Plaintiff should not have been successful in the Lavington proceedings and her motivation to bring him to account for the claims that she made against him in those proceedings when, in her view, the legal system would not hold him so accountable;
(ii) That, having regard to material admitted into evidence in the Lavington proceedings, and notwithstanding the outcome of these proceedings, wherein the Plaintiff succeeded in his defence of them, the Defendant has formed the view that the Plaintiff is a criminal and not a fit and proper person to hold public office and should be held accountable and punished through the court of public opinion;
(iii) That the Defendant seeks retribution for the Plaintiff's enforcement of the costs order awarded in his favour in the Lavington proceedings.
(F) The Defendant's motivation for her conduct may be further inferred from her motivation to publish the Preceding Contemptuous Websites, which motivation was disclosed in the Defendant's letter to the Plaintiff's solicitors dated 4 July 2013 in the 2014 Contempt Proceedings concerning the Preceding Contemptuous Websites, which letter 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".
(G) It may be inferred that the Defendant seeks to exact a reprisal against the Plaintiff by exposing the Plaintiff to hatred, ridicule and contempt and by her ongoing effort over the course of more than 3 years to publish the content of the Tom Tate Reprobate Website on the internet (or substantially similar content), including notwithstanding previous findings of contempt in relation to identical or substantially similar publications, namely those constituting the Preceding Contemptuous Websites.
(H) The Defendant's conduct in publishing and promoting the Tom Tate Reprobate Website and Tom Tate Reprobate Domain constitutes improper and unjustifiable conduct and lacks bona fides, having regard to the following further particulars:
(i) The Defendant published the Tom Tate Reprobate Website knowing its content to be false or with reckless indifference to its truth or falsity, and lacking an honest belief in what she published;
(ii) The Defendant published the Tom Tate Reprobate Website knowing that she had already been found guilty of in respect of the Preceding Contemptuous Websites and knowing that the Tom Tate Reprobate Website repeated false and contemptuous statements previously found to have been published by her in the 2014 Contempt Proceedings;
(iii) The Defendant waited until the expiration of the good behaviour bond which was applied to her in the 2014 Contempt Proceedings and then recommenced her campaign against the Plaintiff;
(iv) The Defendant refrained from publishing a copy of the reported decision of Nicholas J thus denying readers of the Tom Tate Reprobate Website access to a different record of the Lavington proceedings;
(v) The Defendant's wide publication of the content of the Tom Tate Reprobate Website, including her promotion of it via the Internet Promotion, including the Go Fund Me Campaign and on Facebook;
(vi) The Defendant's solicitation of funds from members of the public via the Go Fund Me Campaign, notwithstanding the Defendant's knowledge as published on the Tom Tate Reprobate Website that, following upon legal advice from senior counsel, junior counsel and solicitors, the Defendant chose not to appeal from the Lavington proceedings (which concluded in 2010), from which it may be inferred that the Defendant knows or is recklessly indifferent to the fact that she is deliberately soliciting money from members of the public to fund proceedings that have no reasonable prospects of success, but such solicitation is instead a means of furthering her campaign against the Plaintiff."
The third charge is:
"3 The Defendant has, since at least 7 January 2017, caused the Go Fund Me Campaign to be published and further to be promoted on the internet 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.
Particulars of Charge
(A) The Go Fund Me Campaign contains links to the the Tom Tate Reprobate Website and invites readers of the campaign page to read the information contained on the Tom Tate Reprobate Website;
(B) By reason of the matters particularised in the preceding paragraph, the Plaintiff repeats the particulars to [1] above;
(C) The Go Fund Me Campaign concerns the Plaintiff, the Lavington proceedings and the Defendant's pursuit of justice in relation thereto;
(D) It may be inferred that the Go Fund Me Campaign was published by the Defendant, or under the Defendant's direction and control, such an inference being drawn from:
(i) The content of the campaign page, including the promotion of the campaign by reference to the name "Amanda Duncan", a photo of the Defendant and the suburb of Lavington NSW;
(ii) The inclusion on the Go Fund Me Campaign of links to the Tom Tate Reprobate Website and the invitation to readers of the campaign page to read the information contained on the Tom Tate Reprobate Website;
(iii) The promotion of the Go Fund Me Campaign via a Facebook account in the name of "Amanda Duncan- Strelec", which account bears photos of the Defendant;
(iv) The promotion of the Go Fund Me Campaign via a Facebook account in the name of "Amanda Duncan", which account bears photos of the Defendant;
(v) The promotion of the Go Fund Me Campaign via the Tom Tate Reprobate Website and Tom Tate Reprobate Domain;
(E) The Plaintiff repeats particulars [1 (D)]-[1 (H)] insofar as they may be applied mutatis mutandis to the Plaintiff's publication of the Go Fund Me Campaign;
(F) Further the Defendant's statements and assertions particularised above constitute improper and unjustifiable conduct and are lacking in bona fides, having regard to the Defendant's improper and dishonest attempts to cloak her solicitations of money from members of the public via the Go Fund Me Campaign with an air of authority, insofar as the Defendant asserts that barristers Charles Waterstreet and Peter Lange and solicitor Omar Juweinat, from Aquila Lawyers support her "fight for justice", which fight the Defendant is, in fact, undertaking on the internet via the Tom Tate Reprobate Website, The Go Fund Me Campaign and the Internet Promotions and which fight the Defendant disingenuously asserts that she wishes to undertake in court, notwithstanding her knowledge that or reckless indifference to the fact that an appeal would have no reasonable prospects of success."
The Plaintiff has made out the various particulars to the charges and the Court finds accordingly. For the reasons which follow the Court is satisfied beyond reasonable doubt and finds that in publishing the Reprobate Website, registering the Reprobate Domain and publishing the Go Fund Me Campaign, the Defendant has engaged in conduct 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, her husband and their company. The Defendant sought to effect the reprisal by exposing the Plaintiff to hatred, ridicule and contempt.
[9]
The Defendant's conduct
Acts of reprisal against a witness, taken after litigation has concluded, are capable of constituting a contempt: Attorney-General v Butterworth [1963] 1 QB 696 ("Butterworth"). Denning LJ held (at 719):
"victimisation of a witness is a contempt of court, whether done whilst the proceedings are still pending or after they have finished."
Similarly, acts of reprisal against a successful party, taken after litigation has concluded, are capable of constituting a contempt: Clarkson v The Mandarin Club Ltd and Others [1998] FCA 1685; (1998) 90 FCR 354 ("Clarkson"); Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 per Young CJ in Eq at [37]-[38] ("Yeshiva").
In Clarkson, Burchett J considered whether the suspension of the applicant's club membership by the respondent company constituted a contempt of court, it being an act done in reprisal for the applicant having sought (with some success) a determination by the Federal Court of his rights as against the club.
After considering a number of authorities including Butterworth, Burchett J held (at 362B, 367B-C) that if some action having an actual tendency to interfere with the administration of justice (including deterrence of a party) is taken with the motive or intent of so interfering, that tendency and that motive or intent may be enough to establish contempt of court. His Honour said (at 367C):
"The fundamental question of fact to be determined is whether [the relevant action]… 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."
In this case, the Plaintiff was both a witness in and a party to the Lavington Proceedings.
In the Contempt Judgment, Bergin CJ in Eq accepted that the law of contempt extends to acts of reprisal against parties, and not just witnesses, a conclusion which I respectfully adopt and apply in these proceedings. Her Honour said:
"138. If 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.
…
140. 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."
In my view there can be no reasonable doubt that the Defendant's publication of the Reprobate Website, registration of the Reprobate Domain and publication of the Go Fund Me Website was calculated to exact a reprisal against the Defendant for his having successfully defended the Lavington Proceedings. The Reprobate Website was substantially devoted to the Defendant's grievances regarding those proceedings.
The Go Fund Me Campaign on the Go Fund Me Website was self-evidently a tool being used to further promote and direct internet users to the Reprobate Website and to attract donations in order to help fund and realise the Defendant's reprisal. Lest there be any doubt, the Defendant identified expressly on the Go Fund Me Website what was the purpose of the Go Fund Me Campaign (see Schedule B):
"TOM TATE IS A LIAR AND A CON MAN AND MUST BE BROUGHT TO ACCOUNT. TO READ WHY GO TO THE WEBSITE BELOW:
www.tomtatereprobate.com (http://www.tomtatereprobate.com)
…
TATE AND KOVACEVIC/KENDT NEED TO BE EXPOSED AND BROUGHT TO JUSTICE …
THAT IS WHY I AM ASKING FOR HELP TO FUND THE LEGAL COSTS FOR MY APPEAL."
Having expressed that conclusion, I must immediately add that if all the Defendant had done was publish the Go Fund Me Campaign on the Go Fund Me Website and not the Reprobate Website, I would not have been satisfied that the third charge had been made out. The Plaintiff may have had an action for defamation, but that is a different matter.
In the Contempt Judgment (at [138]) Bergin CJ in Eq made this, with respect, essential observation about the Court's approach to cases such as the case at bar:
"However it is imperative to weigh this factor [reprisals deterring parties from bringing their disputes to the Court] 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."
It is a fundamental feature of our democracy that decisions of the Court are open to criticism. That criticism can be calm or strident and informed or uninformed. There is nothing contemptuous in a disappointed litigant expressing their strong disagreement with the Court's decision, including as part of an approach to the public for assistance to help finance an appeal. However, a disappointed litigant can cross the Rubicon into contempt depending on what the litigant says about why they disagree with the judgment and whether or not they are acting in good faith. Every case will turn on its own facts. However, in the present case the cross-referencing between the sites leaves no room for reasonable doubt about the proposition that the Go Fund Me Campaign was an integral part of the Defendant's conduct in seeking to visit a reprisal on the Plaintiff for his success in the Lavington Proceedings.
[10]
Second and fourth charges: scandalising the Court
The second charge is:
"2 The Defendant has, since at least 29 November 2016, caused the Tom Tate Reprobate Website to be published on the Tom Tate Reprobate Domain and to be promoted via the Internet Promotion with the aim of lowering the authority of the Court as a whole, or that of its judges, in a manner thus calculated to impair public confidence in the Court and its judicial determinations.
Particulars of Charge
(A) The content of the Tom Tate Reprobate Website repeats or is otherwise similar to the content appearing on the Preceding Contemptuous Websites which this Court found the Defendant published and found to be contemptuous in the 2014 Contempt Proceedings, and thus it may be inferred that by the publication of the Tom Tate Reprobate Website and the republication of the content of the Preceding Contemptuous Websites, determinations of the Court lack authority and may be ignored and instead litigants who are unsatisfied with the outcome of court proceedings may seek justice ex curia;
(B) The Tom Tate Reprobate Website contain statements critical of the New South Wales judicial system, insofar as the website asserts, whether directly or by implication:
(i) that in the Lavington proceedings, a New South Wales Supreme Court Registrar, Registrar Walton, favoured the Plaintiff to the detriment of the Defendant;
(ii) that in the Lavington proceedings, a New South Wales Supreme Court judge, Nicholas J, deliberately failed to give the Defendant a fair hearing, including for the reasons further particularised in (C) below;
(iii) that, an honest Plaintiff who seeks justice before the New South Wales courts will not receive it, for the judicial system allows criminals to operate undetected and unaccountable, and instead punishes honest Plaintiffs with loss and bankruptcy;
(iv) the New South Wales judicial system allowed the Plaintiff's barristers deliberately to mislead the Court and the Plaintiff's solicitors to collude with the Plaintiff and the solicitors for the Defendant, contrary to the rules governing the conduct of officers of the court, and to the detriment of the Defendant, and thus fosters corruption and criminal activity.
(C) The websites make the following assertions regarding the Court and Nicholas J, whether directly or by implication:
(i) Nicholas J disapproved of the Defendant for being self-represented;
(ii) Nicholas J denied the Defendant a fair trial by refusing to give her the information she needed;
(iii) In the course of the trial of the Lavington proceedings, Nicholas J showed callous disregard for the Defendant when she informed the Judge that she was sick owing to her son's being injured in a car accident the day before its commencement, insofar as the judge refused to offer the Defendant advice or an adjournment and otherwise refused to grant an adjournment;
(iv) Nicholas J unfairly prevented the Defendant from continuing her cross-examination of the Plaintiff in the Lavington proceedings;
(v) Nicholas J wrongfully excluded certain of the Defendant's affidavit evidence, and thus treated the Defendant unfairly in the course of the trial;
(vi) Nicholas J 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 [2(B)] and [2(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 Nicholas J 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 Plaintiff repeats particular [1(H)] above;
(F) The Defendant's publication of the Tom Tate Reprobate Website is aimed at lowering the authority of the Court as a whole and the authority of the Court's officers, including its judicial officers, in a manner calculated to impair public confidence in the Court, its officers and its judicial determinations, in that the website excites public misgivings as to whether a self-represented litigant can obtain a fair trial before the court and as to the integrity, propriety and impartiality brought to the exercise of the judicial office."
The fourth charge is:
"4. The Defendant has, since at least 7 January 2017, caused the Go Fund Me Campaign to be published and further to be promoted on the internet with the aim of lowering the authority of the Court as a whole, or that of its judges, in a manner thus calculated to impair public confidence in the Court and its judicial determinations.
Particulars of Charge
(A) The Go Fund Me Campaign by its own content and by its link to the content of the Tom Tate Reprobate Website repeats or is otherwise similar to the content appearing on the Preceding Contemptuous Websites which this Court found the Defendant to have contemptuously published and thus it may be inferred that, by the publication of the Go Fund Me Campaign and the republication of the content of Preceding Contemptuous Websites, determinations of the Court lack authority and may be ignored and instead litigants who are unsatisfied with the outcome of court proceedings may seek justice ex curia;
(B) By reason of the inclusion of links to the Tom Tate Reprobate Website on the Go Fund Me Campaign, the Plaintiff repeats particulars [2(B)]-[2(F)] insofar as they may be applied mutatis mutandis to the Plaintiff's publication of the Go Fund Me Campaign;
(C) The Plaintiff repeats particular [3(F)] above;
(D) The Defendant's publication of the Go Fund Me Campaign is aimed at lowering the authority of the Court as a whole and the Court's officers, including its judicial officers, in a manner calculated to impair public confidence in the Court, its officers and its judicial determinations, in that the website excites public misgivings as to whether a self-represented litigant can obtain a fair trial before the Court and as to the integrity, propriety and impartiality brought to the exercise of the judicial office."
The Plaintiff has made out the various particulars to the second and fourth charges and the Court finds accordingly. For the reasons which follow the Court is satisfied beyond reasonable doubt and finds that in publishing the Reprobate Website, registering the Reprobate Domain and publishing the Go Fund Me Campaign, the Defendant acted with the aim of lowering the authority of the Court as a whole, or that of its judges, in a manner thus calculated to impair public confidence in the Court and its judicial determinations.
First, the Reprobate Website included the statements reproduced at items 2, 3, 5, 6, 8-10, 12-18, 20, 22 and 23-28 of Schedule A about the judicial system including a detailed analysis of Nicholas J's conduct in the Lavington Proceedings. This included the following statement to the effect that the Defendant was forced by Nicholas J to continue with the hearing against her wishes (see item 18 in Schedule A - emphasis added):
"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."
As I set out in paragraphs [93] to [95] below, I accept (as Bergin CJ did in the Contempt Judgment) the Plaintiff's submission that this statement is a serious misrepresentation of Nicholas J's conduct. This misrepresentation was a matter on which Bergin CJ in Eq based her finding of contempt (Contempt Judgment at [208] to [211]).
Second, the Reprobate Website published a copy of the transcript of the Lavington Proceedings. This gave the statements made on the Reprobate Website an air of authority that they otherwise would not have, by conveying the impression that those statements were supported by documentary evidence. Similarly, the Reprobate Website published documents obtained from the Tate parties in the course of the Lavington Proceedings. However, the Reprobate Website failed to publish the Primary Judgment which detailed the reasons why the Defendant lost those proceedings. I accept the Plaintiff's submission that the omission of the Primary Judgment supports the conclusion - which I draw - that the Plaintiff's intention on the Reprobate Website was to present a one-sided and highly critical view of what happened in the Lavington Proceedings.
The Court therefore accepts the Plaintiff's submission that the Reprobate Website was calculated to:
1. assert that an injustice was perpetrated against the Defendant, her husband and their company during the Lavington Proceedings;
2. assert that Nicholas J failed to deal fairly with the Defendant, her husband and their company during the Lavington Proceedings;
3. assert that Nicholas J incorrectly decided the Lavington Proceedings for improper or discriminatory reasons;
4. provide evidence tending to make good each of Defendant's above assertions against the judicial system (and, in particular, Nicholas J); and
5. discredit the Plaintiff in the process.
The Court is satisfied beyond reasonable doubt that the Defendant's publication of the Reprobate Website, the Reprobate Domain and the Go Fund Me Website was aimed at lowering the authority of the Court as a whole (or that of its judges) and in a manner calculated to impair public confidence in the Court and its judicial determinations. The Defendant's publications on those websites therefore 'scandalise' the Court: R v Gray [1900] 2 QB 36 at 40 per Lord Russell of Killowen CJ referred to in McGuirk v University of New South Wales [2009] NSWSC 1058 per James J at [243] ("McGuirk").
As a statement of the offence of scandalising the Court, the observation of Rich J (with whom Evatt and McTiernan JJ agreed) in R v Dunbabin; Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 at 442 ("Dunabin") (quoted with approval by Gleeson CJ and Gummow J in Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 at 390) is the locus classicus. Rich J observes:
"Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court's judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office."
The reference to "calculated" in the above passage does not mean "intended." It means that, when viewed objectively, the relevant conduct is likely, or has a tendency, to impair confidence in the administration of justice and to lower the authority of the Court or a judge of the Court: R v Hoser and Kotabi Pty Ltd [2001] VSC 443 at [40] cited with approval in McGuirk at [245].
More recently in Mahaffy v Mahaffy [2018] NSWCA 42; (2018) 97 NSWLR 119 ("Mahaffy") Simpson JA (with whom Payne JA and Emmett AJA relevantly agreed) after reviewing a number of authorities recorded this summary at [209] which I respectfully adopt and apply:
"It can be seen that the courts seek to strike a balance between, on the one hand, protection of the administration of justice in order to preserve public confidence, and, on the other, recognition of the rights of individuals to criticise, even strongly, decisions made by courts and even the courts themselves. What will not be tolerated is the publication of material that tends to undermine confidence in the administration of justice, or is likely to impair a court's authority (Dixon J in R v Dunbabin; Ex parte Williams [1935] HCA 34)."
Relevant considerations identified by their Honours are:
1. the extent of the publication and to whom it is made;
2. the likelihood or the possibility that the publication will have the effect of obstructing or interfering with the due course of justice or the lawful processes of the Courts (the administration of justice); and
3. whether the publication excites misgiving as to the integrity, propriety or impartiality in the exercise of judicial office.
A publication that tends to disparage the authority of the Court (such as a publication containing abusive criticism of a court's decision) may constitute contempt even where it is made after a case has concluded: Yeshiva per Young CJ in Eq at [49] relying on Dunbabin.
As noted in Mahaffy, in determining whether a statement tends to lower the authority of the Court, the extent of the publication of the statement is relevant. As the learned authors of Borrie & Lowe, Law of Contempt (3rd ed 1996) state (at 338) :
"A further qualification, at least according to the New Zealand decision Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 at 233-4 (NZCA), is that to establish an actionable contempt it must be proved beyond reasonable doubt that there is a real risk as opposed to a remote possibility that public confidence in the administration of justice will be undermined … Assuming the need for a real risk it would seem a minimum requirement that the publication has a wide circulation at any rate in the area where it is claimed that public confidence is impaired. For example, a specialist journal read by a few can hardly be said to be likely to create a real risk of undermining the public confidence in the administration of justice."
In this case, the Reprobate Website - which by its nature was published to the widest possible audience - imputed unfairness and lack of impartiality to the Court and Nicholas J, in particular. It asserted that individuals, and in particular, self-represented litigants, before the Court cannot expect to receive a fair hearing. So much appeared from:
1. the many assertions that is impossible to obtain justice before the Court; and
2. the many assertions that Nicholas J treated her unfairly including, by way of example, the suggestion that she was compelled to leave hospital "the day after" a "complete surgical reconstruction of [her] pelvic area" to attend a pre-trial hearing before Nicholas J, who upon seeing the Defendant "was not at all pleased that [she] was self-representing [sic] and said so".
The evidence demonstrates that the Reprobate Website in fact had the effect of exciting public misgivings as to the integrity, propriety or impartiality in the exercise of judicial office (Mahaffy at paragraph [87] above). I infer this from the fact that as at 20 March 2018, the Go Fund Me Website (which first directs users to the Reprobate Website) recorded the receipt of 16 donations, including one from a user identified as 'Lou Underwood' who left the following comment:
"Amanda, don't give up, it is only with people like you that justice can prevail."
One further matter warrants particular attention (see paragraph [81] above]. On the Reprobate Website the Defendant stated that she had considered appealing from the Lavington Proceedings on the basis of:
"…the failure of the Judge [i.e. Nicholas J] to allow an adjournment when he heard of my son's accident..."
The relevant exchange between the Defendant and Nicholas J in the Lavington Proceedings is at T136.10-137.10 on 29 June 2010:
"FIRST PLAINTIFF
Q. If I take you to p 258 of the exhibits, which was the letter that was sent by myself to Tom on 27 February?
A. Yes.
Q. And if you go down four paragraphs to the comments about - I am sorry, your Honour. I'm not feeling very well at all.
HIS HONOUR: What do you want to do? Do you want me to break for a while? You have had the lunch break.
FIRST PLAINTIFF: I tried to recover over the lunch break, but I'm 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'm 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.
HIS HONOUR: Do I understand, then, you don't wish to take the re-examination of Mr Strelec any further?
FIRST PLAINTIFF: That's correct.
HIS HONOUR: 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
HIS HONOUR: You are content for the case to continue?
FIRST PLAINTIFF: I would prefer that it does. I don't want to delay, but I'm not feeling well at all.
HIS HONOUR: Do you have any further evidence to call in your case?
FIRST PLAINTIFF: No, your Honour.
HIS HONOUR: That closes your case?
FIRST PLAINTIFF: Yes.
HIS HONOUR: 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?
FIRST PLAINTIFF: That's correct."
The Court accepts the Plaintiff's submission that the Defendant has - again - seriously misrepresented the conduct of Nicholas J in the Lavington Proceedings. Bergin CJ in Eq held accordingly in the Contempt Judgment at [208] to [211]. The fact that the Defendant has repeated what was written on the Previous Website in the face of Bergin CJ in Eq's finding fortifies me in the conclusion which I have reached beyond reasonable doubt that the Defendant intended to impair confidence in the administration of justice and to lower the authority of the Court or a judge of the Court. That same circumstance - repeating comments found to have been false and contemptuous in the First Contempt Proceedings - enables me to conclude, as I do, that that the Defendant was acting mala fides in publishing the Reprobate Website, the Reprobate Domain and the Go Fund Me Campaign on the Go Fund Me Website.
The foregoing is sufficient to explain the Court's conclusion on the second charge. Insofar as the fourth charge is concerned, in relation to the Go Fund Me Campaign, the publication of that campaign on the Go Fund Me Website was self-evidently a tool being used to further promote and direct internet users to the Reprobate Website. In the present case, the cross-referencing between the sites leaves no room for reasonable doubt about the proposition that the Go Fund Me Campaign was an integral part of the Defendant's conduct which was likely, or has a tendency, to impair confidence in the administration of justice and to lower the authority of the Court or a judge of the Court.
As with the third charge, having expressed the view set out in the preceding paragraph, I again add that if all the Defendant had done was to publish the Go Fund Me Campaign on the Go Fund Me Website and not the Reprobate Website, I would not have been satisfied that the fourth charge had been made out. I repeat in this context what I said in paragraph [76] above.
The Court accepts the Plaintiff's submission that there can be no reasonable doubt that the publication of the Reprobate Website, the Reprobate Domain and the Go Fund Me Campaign constituted the second and fourth contempts charged.
[11]
Conclusion
The Court finds the Defendant guilty of each of the four contempt charges brought by the Plaintiff.
The Plaintiff is entitled to the final relief sought, including permanent injunctions: Yeshiva at [11] - [14] per Young CJ in Eq. I will appoint a further directions hearing to give the parties, especially the Defendant, an opportunity to address the Court on the form of the injunctions and other orders, and in relation to the further steps required to prepare for a hearing on penalty.
Schedule A (186 KB, pdf)
Schedule B Tate v Duncan-Strele. (2.69 MB, pdf)
[12]
Amendments
11 October 2019 - Schedule A replaced with correct Schedule
14 October 2019 - Para 84 - "Plaintiff's publications" at beginning of second sentence changed to "Defendant's publications".
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: 14 October 2019