REASONS FOR JUDGMENT
1 Before we pronounce our reasons for judgment, an application has been made by counsel on behalf of the appellant for leave to add a further ground of appeal in terms as follows:
The learned primary judge erred when he dispensed with service of the September 2002 orders, pursuant to order (37), rule 2(6), and his further order that those orders may be enforced by committal, notwithstanding that the applicant has failed to serve a notice in accordance with order (37), rule 2(3).
2 Order 37 r 2 of the Federal Court Rules is as follows:
Service before committal or sequestration
(1) Subject to the Rules, an order shall not be enforced by committal or sequestration unless:
(a) the order or a certified or office copy thereof is served personally on the person bound; and
(b) if the order requires the person bound to do an act within a specified time, the order or a certified or office copy thereof is so served before that time expires.
(2) Subject to the Rules, where the person bound by an order is a corporation or organisation the order shall not be enforced by committal of an officer of the person bound or by sequestration of the property of an officer of the person bound unless, in addition to service under subrule (1) on the person bound:
(a) the order or a certified or office copy thereof is served personally on the officer; and
(b) if the order requires the person bound to do an act within a specified time, the order or a certified or office copy thereof is so served before that time expires.
(3) An order or a certified or office copy thereof served under this rule must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property if:
(a) where the order requires the person bound to do an act within a specified time, the person bound refuses or neglects to do the act within that time; or
(b) where the order requires the person bound to abstain from doing an act, the person bound disobeys the order.
(4) Subject to the Rules, where:
(a) an order requires the person bound to do an act; and
(b) another order specifies the time in which the act is required to be done;
each order or a certified or office copy thereof shall be served on the person bound before the expiry of that time as so abridged or extended.
(5) Where a person liable to committal or sequestration of his property by way of enforcement of a judgment or order has notice of the judgment or order:
(a) by being present when the judgment is pronounced or when the order is made; or
(b) by being notified of the terms of the judgment or order whether by telephone, telegram or otherwise;
the judgment or order may be enforced by committal of that person or by sequestration of his property notwithstanding that service has not been effected in accordance with this rule.
(6) The Court may dispense with service under this rule.
3 The Full Court in Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 observed that because liberty of the subject was involved, dispensation with compliance with the requirements of O 37 r 2(3) should not be ordered, unless the evidence shows that the requirements of that rule have been fulfilled in some other way. Once the requirements of O 37 r 2(5) are satisfied, the Court has a discretion to enforce an order by committal, even though the order has not been served in compliance with O 37 r 2(1)(a), and even though the notice required by O 37 r 2(3) has not been given: see Australian Securities Commission v Macleod (1993) 40 FCR 155.
4 Powell J of the Supreme Court of New South Wales, in Fullerton v Gardiner, an unreported judgment of 31 October 1978, found that a party could not shelter behind non-compliance with a formality if that party knew of and consented to an injunction and was present in Court when formal orders were made, and then deliberately acts in defiance of those orders.
5 The facts in this case indicate that the undertaking given to Moore J was given in the presence of Dr Toben. It therefore follows that, in respect of that undertaking, the requirements of O 37 r 2(5)(a) apply, and a judgment or order may be enforced by a committal in those circumstances.
6 Since that undertaking by Dr Toben was obviously given in his presence, and since an undertaking to the Court can be enforced as if it were an order or judgment of the Court, it follows then that the requirements of a notice of consequences of failure to comply, which O 37 r 2(3) requires to be included on the orders served on the person, do not apply.
7 It is also important to note that the first charge of contempt found by the primary judge was in respect of conduct on 7 December 2007, which was after the time when Dr Toben had notice, not only of his undertaking, but also of the orders of Branson J and of the consequences of failing to comply with those orders or undertaking.
8 There would therefore be no utility in granting leave to add this ground, and therefore, leave is refused.
9 The Court has taken some time to consider the submissions which we have received in respect of the appeal against the findings of contempt and the punishment imposed. We will first pronounce reasons for judgment of the Court in relation to the appeal against the declarations made by the primary judge concerning contempt.
10 By a Notice of Appeal filed on 9 June 2009, the appellant appealed from declarations made by the primary judge as set out in order number 7 of Lander J's orders given on 16 April 2009. That order is the following terms:
THE COURT DECLARES THAT:
7. The respondent [referring to the appellant] has been guilty of wilful and contumacious contempt of court on:
(1) 7 December 2007; and
(2) 11 December 2007; and
(3) 24 April 2008; and
(4) 23 May 2008; and
(5) 20 June 2008; and
(6) 24 June 2008; and
(7) 25 June 2008;
by publishing on the World Wide Web to the public material:
(a) in disobedience of the September 2002 orders [orders made by Branson J on 17 September 2002]; and
(b) in breach of the undertaking given to Justice Moore on 27 November 2007.
11 The relevant order of Branson J of 17 September 2002 was order 3 which was expressed in the following terms:
3. The respondent [referring to the appellant] be restrained, and is hereby restrained, from publishing or re-publishing to the public, by himself or by any other agent or employee, on the World Wide Web or otherwise:
(a) the document headed "About the Adelaide Institute";
(b) any other material with substantially similar content to the document "About the Adelaide Institute"; and
(c) any other material which conveys the following imputations or any of them -
A. there is serious doubt that the Holocaust occurred;
B. it is unlikely that there were homicidal gas chambers at Auschwitz;
C. Jewish people who are offended by and challenge Holocaust denial are of limited intelligence;
D. some Jewish people, for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.
12 An appeal to the Full Court of the Federal Court from the orders of Branson J was dismissed.
13 The undertaking given to Justice Moore on 27 November 2007 was given orally by the appellant. It was noted by Moore J as follows:
6. The respondent's [appellant's] undertaking to the Court and the applicant [the respondent to the current appeal]:
(a) to comply henceforth with the Orders of Branson J made in these proceedings [on 17 September 2002];
(b) further, to remove all files and material identified in the Second Further Amended Statement of Charge ("the Material") from http://adelaideinstitute.org and from all other World Wide Web websites the content of which is controlled by him or the Adelaide Institute by no later than 4.00pm on 5 December 2007; and
(c) without limiting undertaking (a), not cause any of the Material to be replaced on the World Wide Web.
14 The Notice of Appeal from the findings by the primary judge contained 25 grounds of appeal. It is unnecessary to address them seriatim. The primary case advanced by the appellant is that the words of Branson J's orders do not mean what they say.
15 As Gibbs J, as his Honour then was, said in relation to the construction of a written contract in Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 at 109:
If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust.
16 It is not contested by the appellant that an order of a superior court stands until it is set aside on appeal, or it is revoked or discharged by the court. While the order stands, parties which are affected by the order must comply with the order.
17 The appellant submits that order 3 made by Branson J on 17 September 2002 should be construed as if it commenced, "Subject to s 18D of the Racial Discrimination Act 1975 (Cth), and the preamble to the Australian Citizenship Act 2007 (Cth), and the general common law right of freedom of speech …".
18 The primary judge rejected those submissions which had been made to him to the effect that the order of Branson J should be so construed. We agree.
19 There is no mandate for reading the proscriptions covered by order 3 as if they were qualified in the manner or manners suggested by the appellant.
20 Ground 11 of the Notice of Appeal was expressed as follows:
11. The learned trial Judge should have held that some or other parts of the injunction were ambiguous, vague, uncertain, and were accordingly either incapable of enforcement or were unsuitable to be enforced in the circumstances.
21 In the course of his oral submissions, counsel for the appellant acknowledged that paragraph 3(a) of Branson J's orders contained no ambiguity, and did not suggest that there was any ambiguity in the expression of subparagraphs C and D of paragraph 3(c). A general submission was put that the inclusion of the words "with substantially similar content" in order 3(b) allowed for ambiguity as to what was proscribed by the injunction. Similarly it was suggested that the words "which conveys the following imputations" allowed ambiguity, as did the use of the expression "serious doubt" in subparagraph A of 3(c), and the use of the word "unlikely" in subparagraph B of 3(c). We disagree.
22 Before the primary judge it had been submitted that charges 7, 9, 11, 14, 15, 18, 20, 22 and 26 of the Third Further Amended Statement of Charge, filed 27 June 2008 in respect of alleged contraventions of the injunction and the undertaking which amounted to contempt, were duplicitous, it being said that the information published by the appellant gave rise to more than one imputation.
23 At [116] of his Honour's reasons, Lander J expressed the opinion that:
…the orders are not imprecise or vague or uncertain. They do not become so because they require the party to whom they are directed to make a subjective assessment of the material which may be published on the World Wide Web.
24 Again, we agree.
25 In our opinion, there is no ambiguity sufficient to set aside any of the findings of contempt made by the primary judge. It may be observed that although we invited counsel for the appellant to identify any finding of the primary judge that was tainted by any ambiguity in order 3, the appellant by his counsel, did not assert that any part of the primary judge's reasons for judgment, including his findings of fact relied upon to found a finding of contempt in respect of a charge, was wrongly made because order 3 was ambiguous.
26 No submission has been advanced to suggest that order 3 and the undertaking were not contravened in their terms by the conduct which the primary judge found to have occurred.
27 In our opinion, the appeal from the making of the declarations in order number 7 of the primary judge's orders of 16 April 2009 should be dismissed with costs. The order of this Court in respect of appeal SAD 69 of 2009 is that the appeal is dismissed with costs.
28 On 13 May 2009, Lander J ordered that the respondent pay the applicant's costs on a party-and-party basis, and further ordered the respondent be imprisoned for a period of three months.
29 On 2 June 2009, Besanko J made these orders in Adelaide:
1. The time within which the applicant may file and serve a notice of appeal appealing against the declaration made by Lander J on 16 April 2009 (order number 7) and containing the 25 grounds of appeal identified in exhibit "GFT-B" to the applicant's affidavit sworn on 20 May 2009 be extended to 9 June 2009.
2. The costs of the application for leave to appeal dated 20 May 2009 and the application for an extension of time to file and serve a notice of appeal dated 20 May 2009 be costs in the appeal.
3. The warrant for the arrest and imprisonment of Dr Toben lie in the Registry of the Court until 5 pm on 13 August 2009, or until further order.
30 The order of Besanko J noted the undertaking by Dr Toben that, pending the determination of the appeal against sentence, he will not leave the State of South Australia, save for the purpose of conferring or receiving advice from Mr Perkins, his counsel who appeared for him on this appeal, in Melbourne.
31 In relation to the appeal against the sentence of imprisonment of three months imposed by Lander J, counsel for the appellant in written submissions took exception to the sentencing discretion in a number of significant respects.
32 Lander J delivered reasons for judgment on punishment on 13 May 2009. His Honour commenced those reasons by saying:
On 16 April 2009 I delivered reasons (the trial reasons) for the making of a declaration that the respondent has been guilty of wilful and contumacious contempt of court on 24 occasions between 7 December 2007 and 25 June 2008 by publishing on the World Wide Web to the public material in disobedience of orders made by Branson J on 17 September 2002 (the September 2002 orders) and in breach of an undertaking given by the respondent to Moore J on 27 November 2007 (the November 2007 undertaking).
33 After considering the question of costs, and on what basis they should be ordered, that is, on an indemnity basis as sought by the applicant, or on a party-and-party basis, his Honour ordered that the respondent pay the applicant's costs on a party-and-party basis. No appeal has been made from that part of his order.
34 However, in relation to the second order that his Honour made on 13 May 2009, namely that the respondent be imprisoned for a period of three months, the appellant has appealed.
35 His contention is that the punishment is too severe, and in particular he asserts that the trial judge was in error in not considering ordering home detention as a method of serving any custodial sentence he imposed.
36 In the reasons for judgment concerning the punishment to be imposed, Lander J said the following in respect of the conduct constituting the contempts:
17 There is no need to recount the matters which I addressed in the trial reasons. It is enough to say that in the trial reasons I reached the conclusion that the respondent had, in disobeying the September 2002 orders and the November 2007 undertaking, conducted himself in contumelious disregard for both the orders and the undertaking. For the reasons which I then gave, because the respondent gave an undertaking to obey the September 2002 orders, on each occasion upon which he disobeyed the September 2002 orders he also breached the November 2007 undertaking. I should therefore proceed upon the basis that on 13 occasions the respondent has breached both the September 2002 orders and the November 2007 undertaking. …
37 The primary judge then said:
18 No evidence has been adduced on his behalf to explain his conduct. In particular, he made no attempt during his evidence to give any explanation as to why he has conducted himself in the manner that he has.
38 Commencing at [64], his Honour observed:
64 An important consideration on the question of penalty for a contempt of court which involves disobedience of a court order is whether the contemnor has purged his contempt and is truly contrite.
65 The respondent apologised to Justice Moore on 27 November 2007 when he gave the November 2007 undertaking but withdrew that apology and indicated he would not comply with the undertaking within days of doing so.
66 He has apologised again in his affidavit which he tendered on this hearing and in his oral evidence.
67 The apology, both to Moore J and me, was unreserved. Whilst the apology has been noted, in my opinion it was given for the purpose of influencing the penalty to be imposed by this Court and for no other reason. It was given at the very last moment and on the advice of his counsel. His affidavit shows that. His answer referred to in [50] of these reasons shows a lack of remorse and contrition.
68 I am satisfied that Dr Toben has apologised only because he was so advised and his apology does not reflect a frank acknowledgement of the contempt which has been committed or any true expression of regret on his part. I do not accept that he is contrite for what he has done.
69 His claim that he now recognises that his conduct has undermined the authority of the Court is rejected. In my opinion, he always knew that his conduct would undermine the authority of the Court and his conduct was calculated to achieve that effect.
39 At [73], the primary judge found:
I am of the opinion that Dr Toben's conduct evinces a calculated intention to disobey orders of the Court and undertakings given to the Court for the purpose of bringing the Court into disrepute. He has no respect for this Court or the authority of this Court.
40 At [77], it was correctly noted:
The Court has the duty of ensuring that its orders are complied with. If its orders can be disobeyed with impunity, public confidence in the administration of justice will be undermined.
41 At [81], his Honour then said:
The purpose of punishment for contempt in a case such as this is to vindicate the authority of the Court by punishing the contemnor and at the same time seeking to deter both the contemnor and other like-minded people from disobeying orders of the Court. Apart from the aspect of punishment, there is therefore a need to have regard to both personal and general deterrence.
42 And at [84] - [85], the primary judge said:
84 I have reached the conclusion that a sentence of imprisonment, although a sentence of last resort, is required in this case because of Dr Toben's conduct - not because of Dr Toben's financial circumstances.
85 Dr Toben will be imprisoned for three months.
43 In the submissions concerning punishment, counsel on behalf of the appellant said the learned trial judge was in error in failing to place any, or any sufficient, weight on the evidence that material on the website was not written by the appellant and that the appellant was in the position of an editor. That consideration is quite irrelevant when the contempt consists of a clear breach of the injunctions contained in order 3 of Branson J.
44 This is not a case concerning opinions or views concerning the Holocaust, or about gas chambers, or about Jews. This case was, and is, about whether orders of the Court have been obeyed or not, and whether undertakings given to the Court have been breached or not. As his Honour the primary judge noted, obedience to orders of the Court is not optional. Observance of undertakings given to the Court is not optional.
45 We have found that the contempts found by the primary judge are not tainted with any error and the appeal against those findings has been dismissed.
46 In relation to the appeal against sentence, the facts are that Dr Toben has been found guilty of most serious contempts, which were committed in a serial way. As the findings of the primary judge indicate, they exhibit a contumelious disregard of the orders of the Court and undermine the authority of the Court. The primary judge described his conduct variously as contumacious or contumelious. The purpose of punishment in those circumstances is primarily to vindicate the authority of the Court. The contempts of Dr Toben are serious and multiple.
47 It may be thought that the three months imprisonment imposed, given the serious and repeated contempts wilfully and deliberately committed by Dr Toben, is treating him mercifully, as the primary judge indicated. In our opinion, the three months imprisonment imposed in respect to the contempts found by the primary judge cannot by any stretch of the imagination be said to be excessive or unwarranted.
48 In those circumstances, the appeal against punishment is dismissed, with costs.
49 In relation to the orders of Besanko J of 2 June 2009, the third of his Honour's orders was that:
The warrant for the arrest and imprisonment of Dr Toben lie in the Registry of the Court until 5 pm on 13 August 2009, or until further order.
50 The further order of the Court is that the warrant for the arrest and imprisonment of Dr Toben issue forthwith.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Graham and Gilmour .