[1986] HCA 46
Commonwealth Bank of Australia v Salvato (No 4) [2014] NSWSC 321
Hinch v Attorney-General (Vic) (1987) 164 CLR 15
[1987] HCA 56
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Source
Original judgment source is linked above.
Catchwords
[1986] HCA 46
Commonwealth Bank of Australia v Salvato (No 4) [2014] NSWSC 321
Hinch v Attorney-General (Vic) (1987) 164 CLR 15[1987] HCA 56
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Judgment (5 paragraphs)
[1]
Judgment
HIS HONOUR: The defendant is charged by the plaintiff with contempt in that:
in wilful breach of the orders made by this Court on 15 November 2017, whereby the defendant was permanently restrained from further publishing the third and fifth to ninth matters complained of (or similar imputations not differing in substance from them), [between about 18 December 2017 and about 30 July 2018] the defendant published further matters about the plaintiff which carry similar imputations, or imputations not different in substance, to those imputations carried, variously, by the third and fifth to ninth matters complained of (Count 1).
The statement of the above charge was filed on 7 June 2018 together with a notice of motion pursuant to which the plaintiff seeks a declaration that the defendant is guilty of contempt and asks for an order that he be convicted and punished. At the commencement of the hearing of the notice of motion the charge was read over to the defendant by the Court and he pleaded not guilty. A second charge, that the defendant breached an undertaking given to the court on 11 December 2017, was withdrawn on the day of the hearing.
The defendant resides in Victoria. He was made bankrupt on 27 February 2018 upon the basis of an unpaid liability to the plaintiff for costs of legal proceedings in the Supreme Court of Victoria. At the time of the hearing he claimed that he had insufficient funds to travel to Sydney. He was permitted by the Court to participate in the hearing by telephone. He represented himself and displayed no useful understanding of legal procedure or of relevance to the matters at hand. The defendant's first language is Arabic but he has reasonable comprehension of spoken English and can express himself in English to an adequate standard.
The combination of the defendant's lack of legal representation or legal training, the use of the phone link to conduct the proceedings and a measure of language difficulty, requiring repetition and clarification, were factors that contributed to the hearing being an extreme test of patience for everyone involved. It occupied a full day, which was at least twice the time that would have been necessary if the defendant had been present and represented by competent counsel.
The injunction of which the defendant is alleged to have been in contempt was granted on 15 November 2017 by McCallum J (as her Honour then was): Zaia v Eshow [2017] NSWSC 1540. McCallum J found that the defendant was a parishioner of the Assyrian Church of the East ("the Church") for over 54 years, in Iraq until 2006 and thereafter in Victoria. In 2015 the plaintiff was a senior cleric of that church in Victoria, holding the office of Archbishop or Metropolitan. Relevantly to the case before her Honour, the defendant published Facebook posts in April and December 2015, all in Arabic, conveying imputations defamatory of the plaintiff.
Her Honour summarised the imputations that she found were conveyed by the matters complained of, as follows:
[101] The defamation is serious. The acts and conditions that have been attributed to the plaintiff in the publications on which he has succeeded are, broadly, that he has failed the Church, that he is a hypocrite, that he is unfit to hold the position he holds in the Church, that he deserves to be punished for expelling the defendant from the Church, that he is evil and worse than [the notorious Islamic State organisation], that he is violent, drunk, dishonest and incompetent and that he has made false accusations against the defendant.
Her Honour awarded damages of $150,000. The following considerations were submitted by the plaintiff and accepted by her Honour as sufficient to justify the grant of a permanent injunction against further defamatory publications:
1. Prior to the trial the defendant had refused to remove the matter complained of from Facebook or to give undertakings that he would do so and that he would not publish further similar allegations.
2. To some extent, at least, some of the publications could be described as defiant.
3. The volume and content of publications published after the commencement of the plaintiff's proceedings for damages evinced an intention on the defendant's part to publish more of the same or similar material. In the course of the substantive hearing before her Honour the defendant said he would "still, you know, post the truth in Facebook".
4. The defendant had demonstrated that he held the view that this Court does not have jurisdiction to determine the plaintiff's claim for damages because the matters he has published concern internal affairs of the Church and are to be dealt with according to Synod laws.
At [131] of her Honour's judgment it was indicated that she proposed to grant an injunction in the following terms:
That the defendant be permanently restrained by himself, his servants or agents from further publishing the third and fifth to ninth matters complained of in these proceedings or any other matter giving rise to the imputations found in this judgment to have been conveyed by those matters (or similar imputations not differing in substance from them).
An order to that effect was made and entered on 15 November 2017.
Particulars are set out in the statement of charge, identifying the above injunction and referring to an Annexure A in which there are quoted, in a table, the "imputations found in [her Honour's] judgment to have been conveyed". The particulars assert that on 15 November 2017 the plaintiff caused a copy of her Honour's reasons for judgment to be sent to the defendant but that thereafter Facebook posts, additional to those which were complained of in the principal proceedings, remained visible on his Facebook page. On 6 December 2017 the plaintiff's solicitors requested that the defendant remove all defamatory posts, including the additional ones.
On 12 December 2017, by email addressed to the Associate to McCallum J, the defendant undertook to remove from his Facebook page all defamatory publications. He wrote in these terms:
To the officer of the court,
I have re-read the court ruling around my case and although I was not able to properly defend myself I nonetheless accept my loss and will abide by the court and the judge's decision.
In order to save the plaintiff and the court additional costs around this lawsuit I have as a sign of good faith decided to not only fully abide by the restraining order but to also promptly remove all posts outlined by the plaintiff saving both translation costs and the court's time.
The plaintiff accepts that all impugned posts were removed by about 18 December 2017. However it is alleged that on some date thereafter, which the plaintiff is not able to specify precisely, the defendant restored to his Facebook profile a large number of the additional 2017 posts. These were published in a manner that enabled them to be seen online by 28 February 2018. It is also alleged that further posts were made on or about 13 March 2018. Sixty-two of the reinstated 2017 posts and two of the new March 2018 posts are specified in a schedule marked Annexure B to the statement of charge. In the particulars of charge as they stood immediately before the hearing commenced, these posts, 64 in total, were alleged to have conveyed imputations defamatory of the plaintiff not different in substance from the imputations her Honour had found proved in the principal proceedings. At the outset of the hearing counsel for the plaintiff nominated only six posts upon which he was proceeding: Nos 19, 25, 26, 27, 33 and 50 in the list at Annexure B to the statement of charge.
It is alleged in the particulars that the six posts remained on the defendant's Facebook page as at the date of the charge, 6 June 2018, despite written requests from the plaintiff's solicitors that they be removed. The evidence on the notice of motion was that they were removed on a date unknown between 6 June and 30 July 2018. They were gone by the latter date. During a mention of the contempt proceedings shortly before the hearing in February this year it was pointed out by the Court to the plaintiff that as a result of the posts having been removed there would be no occasion for the defendant to be committed to prison until he should purge his contempt. The contempt, if proved, would be one that had occupied a closed period of at most about five months, from late February to late July 2018. Full-time custody, even for a short term, would not likely be called for. This would be especially so given the substantial damages that had already been imposed by McCallum J for earlier publications conveying the same imputations as those concerned in the contempt.
Further, it was pointed out that the imposition of a fine would be ineffectual as the defendant had already been made bankrupt on the petition of the plaintiff. The Court suggested to the plaintiff that pursuit of the contempt charges in the circumstances might be considered unwarranted. As the offending matter had been removed the Court had no interest of its own in seeing the charges prosecuted in order to vindicate its authority.
The plaintiff did not regard these considerations sufficient to cause it to withdraw the charges. At the commencement of the hearing of the notice of motion the plaintiff's counsel informed the Court that if the contempt should be found proved the plaintiff would ask only that the declarations be made and not that any penalty be imposed. This was a realistic approach, however it reinforces the impression that pursuit of these charges to hearing and judgment has been an unnecessary invocation of the Court's jurisdiction. By the time the notice of motion was heard the defendant had been compliant with McCallum J's injunction for six months. There was no evidence that he appeared likely to resume his former activities. The plaintiff could sensibly have concluded that laying the charges, alone, had been sufficient to deter further breach.
[2]
Principles upon which the charge is to be determined
Charges of contempt of court are still classified as either civil or criminal notwithstanding that the distinction has been described in the authorities as "unsatisfactory": Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 109; [1986] HCA 46. Contempt by breach of an order or undertaking is regarded as a civil contempt unless "it involves deliberate defiance or, as it is sometimes said, if it is contumacious": Witham v Holloway (1995) 183 CLR 525 at [530]. In the present case both counts allege "wilful breach", of the injunction in Count 1 and of the 12 December 2017 undertaking in Count 2. I regard that pleading of the counts as sufficient to put the defendant on notice of the nature of the charges he has had to meet, so that if the necessary elements are found proved the pleading is capable of supporting convictions for criminal contempt: cf ZXC v YPOL Pty Ltd [2018] NSWCA 306 at [14]-[15].
In Witham v Holloway the High Court held that the criminal standard of proof applies to all contempts. The applicable rules of procedure, however, are those that apply to other civil proceedings notwithstanding that the alleged contempt is said to have involved wilfulness which would constitute it criminal: ZXC v YPOL Pty Ltd at [16]-[17], citing Hinch v Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56 at 89 and Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [66].
In NAB Ltd v Juric [2001] VSC 375 Gillard J set out at [35] what is to be proved in order to establish a civil contempt of court involving a breach of an order of the Court. I adopt his Honour's list of five elements and add a sixth which must be proved in order to establish that the breach of order constituted a criminal contempt. The plaintiff in the present case has to prove the following:
1. That an order was made by a court.
2. That the terms of the order are clear, unambiguous and capable of compliance.
3. That the order was communicated to the alleged contemnor.
4. That the alleged contemnor has knowledge of the terms of the order.
5. That the alleged contemnor has breached the terms of the order.
6. That the breach was contumacious in the sense of, at least, wilful and defiant.
[3]
Proof of the elements of the charge
Elements (1) and (3) are established as follows. It is apparent from the Court file that her Honour's judgment was sent to the defendant shortly after it was handed down. As earlier mentioned, the full text of the injunction was set out in the judgment at [131]. The terms of the defendant's email to her Honour's Associate of 12 December 2017 are an admission that he had read the reasons and the order.
As to element (4), the defendant read one affidavit on the hearing of the notice of motion but did not give any additional evidence in chief or make any submission that would give rise to a reasonable doubt that he had read the terms of the injunction and of her Honour's reasons by 12 December 2017, at the latest. In cross-examination on his affidavit the defendant agreed that he had sent the email of 12 December 2017 and that before doing so he had read the judgment and had people "helping me to read … to explain to me everything in my language". He also said: "I don't know if these people they explain it to me correctly or not, because these people, they were not, not translator or not, not interpreter, so it was a normal people".
The defendant declined to answer questions as to who had assisted him with the reading of this material and did not call evidence from that person or persons. There is nothing in the evidence that causes me to doubt that, through his own comprehension and through such assistance as he may have received, he gained a correct understanding. I am quite satisfied from the defendant's demonstration of his facility in the English language throughout the proceedings that he would have appreciated the effect of the injunction.
With respect to element (2), I consider that the injunction is expressed in unambiguous and straightforward terms. It involves cross-reference to the imputations conveyed by the defamatory matter described in her Honour's reasons. That would not have created any difficulty of comprehension for the defendant. He had participated in the principal proceedings and by late 2017 would have been well familiar with the concept of imputations and with the particulars of the imputations his material was said to convey.
As to elements (5) and (6), I am satisfied beyond reasonable doubt that the six impugned posts were published by the defendant on his Facebook page continuously from 28 February 2018 until 18 May 2018 at a time when he was aware of the terms and meaning of the injunction. The Facebook profiles on which the six posts were made are the same as those on which the defendant made the posts that were the subject of her Honour's findings in the substantive proceedings. As recorded at [10] of her Honour's reasons, by his defence the defendant did not put publication in issue. Having regard to the continuing use of the same profiles and the similarity between the content considered in her Honour's judgment and the content of the six posts, there can be no reasonable doubt that the latter were published by the defendant. On the hearing of the notice of motion the defendant did not contest this.
In cross-examination the defendant admitted that he had taken down a great number of Facebook posts on or after 12 December 2017. He said he was not able to recall whether the six posts upon which the plaintiff relies had been amongst them. He also agreed that he had later reposted a large number of these items but, again, could not recall specifically whether the relevant six and had been amongst the reposts. I am satisfied beyond reasonable doubt that the defendant acted deliberately in respect of all of the reposts that he put up on Facebook by late February 2018 and left there until some date between 18 May and 30 July 2018. It is clear from the plaintiff's affidavit evidence that these reposts included the relevant six.
The plaintiff tendered, at Tab 3 of Exhibit FD-1 to the affidavit of Mr David, all of the 62 reposts, dating originally from 2017, upon which it had relied in support of its notice of motion as filed and before reducing the impugned items to six at the commencement of the hearing. All but seven of these 62 (that is, 55 in total) convey one or more of the imputations that McCallum J found in the material upon the plaintiff's defamation action was found proved. The great majority of these 55, including the six upon which the plaintiff relies, contain the formulaic assertion that the plaintiff is a "liar, hypocrite, corrupt". Although the defendant may not have adverted to the specific content of these six when he put up the entire number, it is clear beyond doubt that he intended to publish everything that was imputed to the plaintiff in the whole body of this material. The content of the six upon which the plaintiff relies is homogenous with the whole batch. It is an irresistible inference that the plaintiff intended to publish the entirety of the defamatory imputations which may be found in these reposts, including in the impugned six.
English translations of the six posts were tendered. The defendant did not take issue with the accuracy of the translations. For the purpose of establishing that each post contravenes the injunction, the plaintiff provided the Court with a table identifying the page number within exhibits to the plaintiff's affidavits at which the English translation of the post can be found. This table also specifies which of the defamatory imputations found by McCallum J to have been conveyed in the original publications is said to have been again conveyed by each of the six posts. Individual imputations, as found by her Honour, are identified in the judgment by number and letter (such as 19e, 21f et cetera). The plaintiff's table facilitates consideration of whether the six posts convey meanings equivalent to those which are the subject of the award of damages and the injunction of 15 November 2017.
I have read all of the six posts, considered the plaintiff's submissions in respect of them and concluded, beyond reasonable doubt, that each of them conveys one or more of the relevant imputations. In reaching this conclusion I have applied the same principles as would be engaged if a fresh action in defamation were brought upon the basis of the six published matters. I have considered how each of the six posts would be understood by the ordinary reasonable reader, being a person of ordinary intelligence, experience and education; fair-minded; not perverse, morbid, suspicious or avid for scandal; capable of reading between the lines and willing to do so in light of general knowledge and experience of worldly affairs; not searching for strained or forced meanings; reading the entirety of each post and considering the context provided by the whole for the particular portions of which complaint is made. See Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; [2015] FCA 652 at [63]-[73] and the numerous authorities cited there by White J in support of these propositions.
Post No 19 includes the following:
The liar, hypocrite and corrupt, [the plaintiff]. … He incited his priests against me … He incited the Church committee members … He ordered his priests and the church committee members to expel my family and me from the church ... wherever I see you, I will call you liar, hypocrite and corrupt. … How shameful that a church … has such a bishop who uses corruption against his church members …
This carries the following imputations (applying the numbering used by the plaintiff in the substantive proceedings and adopted in her Honour's judgment):
9a [The plaintiff] is failing the Church and its followers by spending his time throwing [the defendant] out of his Church for no good reason …
13 [The plaintiff] is [unfit to be Metropolitan of the Church] because he unjustifiably suspended a parishioner [the plaintiff].
21a [The plaintiff] expelled a parishioner [the defendant], [the defendant's wife] and [the defendant's daughters] from the Church without good reason.
21f [The plaintiff] … deserves to be expelled by the Patriarch of [the] Church because he is a liar and a hypocrite.
Post No 25 includes the following:
[You the plaintiff] are a liar, hypocrite and corrupt … [B]ecause of [the] lies and hypocrisy [of a named clergyman] [the plaintiff] nominated [the clergyman] to the rank of bishop and it was the duty of the Patriarch … to dismiss … [the plaintiff] … I was expelled from the church … [by people] who were hired and positioned at the church door and were paid wages from the church money according to the orders of [the plaintiff], the liar, hypocrite, corrupt and violator of Synod Laws … [The plaintiff] uses the church money as [if] were his own …
This carries imputations 9a, 13, 21a and 21f (above) and the following further imputations:
15a [The plaintiff] deserves to be punished by the Patriarch of [the Church] for irresponsibly barring [the plaintiff] from the Church.
19a [The plaintiff] is a hypocrite in that he protects members of his clergy he knows to be liars, drinkers and adulterers in order to further his own ends.
19e [The plaintiff] is not fit to be a bishop because he pursues dishonest gain.
21e [The plaintiff] deserve to be expelled by the Patriarch … because he has broken Synod laws by forbidding [the plaintiff] from entering the Church.
Post No 26 includes the following:
To the liar, hypocrite and corrupt [plaintiff]. … the liar, hypocrite and corrupt who ordered our expulsion from the church and I never broke any of the Synod laws but he did and still breaks most of the laws …
This carries imputations 9a, 13 and 21a.
Post No 27 includes the following:
[T]he hypocrite [the plaintiff] wanted to have revenge on me and on everyone who criticises his corruption. [Because] I provided proofs against him in court he decided to expel me permanently from the [Church]. … I will seek to clean the Church of Christ of every liar, hypocrite and corrupt like you …
This carries imputations 9a, 13, 21a and 21f.
Post No 33 includes the following:
The corrupt, liar and hypocrite [the plaintiff] … tried to take revenge and expelled me permanently from the church saying that this is because you provided evidence against me and against the Clergy in court, therefore you do not accept the rules of the church heads. … All what I presented to the court is the videos that prove you a liar, hypocrite and corrupt and that you violate divine and Synod laws, and the document that proves that you use the church funds for your private account, and in the eyes of the court it proves that you are corrupt as an administrator. For this reason you expelled me …
This carries imputations 9a, 13, 21a and 21f and also imputation: "21b [The plaintiff] has falsely accused [the plaintiff] of being a liar".
Post No 50 includes the following:
Scandals of [the plaintiff]. A liar, hypocrite, corrupt. … Why did you use the Church's money as if it was your own money and take members of the congregation the courts and use the Churches money. And your priests know well that you are a liar, hypocrite and corrupt and that you use the Churches money for your private account …
This carries imputations 19e and 21f
I am satisfied beyond reasonable doubt of the above findings as to the imputations conveyed by the six impugned posts. For it to be found that the defendant committed the contempt alleged it is not necessary that the plaintiff should prove that he intended his actions should be in breach of the injunction. Specific intent in that sense need not be shown. It is sufficient that the actions constituting the contempt, in this case the placing of the six posts, was deliberate and not merely casual, accidental or unintentional: Australian Meat Industry Employees Union v Muginberri Station Pty Ltd at 107; Anderson v Hassett [2007] NSWSC 1310. There is no suggestion from the defendant that the publication of these posts was other than intentional and no evidentiary basis upon which I could have a reasonable doubt as to their deliberate nature.
The six infringing posts were taken down by the defendant after he received the plaintiff's solicitor's letter of 6 December 2017. This was followed by the defendant's email to the Associate undertaking that he would abide by the Court's orders. This sequence of events strongly supports the inference, which I draw to the criminal standard of proof, that when the posts were put up again after 18 December 2017 and left on public display until some date after 18 May 2018 (but before 30 July 2018), the defendant was acting in defiance of the injunction. On that basis I find his contempt, as charged in Count 1, was wilful and contumacious.
[4]
Orders
For these reasons a declaration will be made, as sought in paragraph 1 of the plaintiff's notice of motion filed 7 June 2018, that the defendant is guilty of contempt of this Court as charged. There will be no further order for the imposition of any penalty. I will hear the parties as to costs following publication of these reasons.
[5]
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: 19 June 2019