District Council of Coober Pedy v Naumovic
[2020] SASC 79
•13 May 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DISTRICT COUNCIL OF COOBER PEDY v NAUMOVIC
[2020] SASC 79
Judgment of The Honourable Justice Stanley
13 May 2020
COURTS AND JUDGES - CONTEMPT - PARTICULAR CONTEMPTS - DISOBEDIENCE OF ORDERS OF COURT - INJUNCTIONS
COURTS AND JUDGES - CONTEMPT - PARTICULAR CONTEMPTS - DISOBEDIENCE OF ORDERS OF COURT - ORDERS RELATING TO DOCUMENTS
CONTRACTS - PARTICULAR PARTIES - PRINCIPAL AND AGENT - CREATION OF RELATIONSHIP OF AGENCY - FORMATION AND PROOF OF AGENCY - AGENCY CREATED BY OTHER MEANS
The plaintiff charged the defendant with contempt of court, bringing an application pursuant to r 303 of the Supreme Court Civil Rules 2006 (SA). It alleged the defendant had breached an order of this Court, made by Judge Dart on 5 July 2019, which restrained the defendant from accessing, using, copying, disseminating or otherwise dealing with in any way restricted information which was the subject of proceedings brought by the defendant against the plaintiff for breach of confidence.
The plaintiff alleges the defendant breached the injunction by using the information to draw a pleading, filed in the Magistrates Court in a separate action after the injunction was made. It points to paragraphs 18, 47, 59, 61, 70, 71, 89(e), 92, 92(f) and 92(g) of the pleading. The defendant denies the allegation and says firstly that it was not he who drew the pleading, notwithstanding it being filed in his name and bearing his signature, but instead his wife. Further, he says the restricted information was not used to draw the pleading but that matters bearing a similarity to the restricted information within the pleading were learned through other means.
Held (per Stanley J):
1. Notwithstanding that it was his wife who drew and filed the pleading, the pleading was the defendant’s document. She was his agent and he is liable for her conduct.
2. The plaintiff has not proved beyond reasonable doubt that the defendant used the restricted information in drafting paragraphs 18, 47, 59, 61, 71, 89(e), 92, and 92(f) of the pleading. There is a reasonable possibility that the defendant learned of the impugned information through other means.
3. However, the plaintiff has proved beyond reasonable doubt that the defendant used the restricted information in drafting paragraphs 70 and 92(g) of the pleading. The coincidence in language between paragraph 70 and the restricted information, and the necessity of knowledge of the contents of the restricted information required to plead paragraph 92(g) lead to this conclusion.
Supreme Court Civil Rules 2006 (SA) r 303, referred to.
Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, applied.
Hone v Page [1980] FSR 500; World Wide Fund for Nature (formerly World Wildlife Fund) v World Wrestling Federation Entertainment Inc (2003) 56 IPR 653; Lade & Co Pty Ltd v Black [2006] 2 Qd R 531, discussed.
AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Porter v The King; Ex parte Yee (1926) 37 CLR 432; Hinch v Attorney-General (Vic) (1987) 164 CLR 15; Witham v Holloway (1995) 183 CLR 525; McNair Anderson v Hinch [1985] VR 309; Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd [1990] 1 WLR 926; Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535; Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394; Tchia v Rogerson (1992) 111 FLR 1; Maxwell v Minister for Immigration and Border Protection (2016) 249 FCR 275, considered.
DISTRICT COUNCIL OF COOBER PEDY v NAUMOVIC
[2020] SASC 79STANLEY J:
Introduction
The defendant, George Naumovic (Mr Naumovic), is charged by the plaintiff, the District Council of Coober Pedy (the Council), with contempt of court. The application is brought pursuant to SCR 303.
The Council alleges that Mr Naumovic breached an order made by Judge Dart on 5 July 2019 which restrained Mr Naumovic from accessing, using, copying, disseminating or otherwise dealing with, in any way, information which was the subject of proceedings brought by the Council against Mr Naumovic for breach of confidence. The action concerned 23 documents which the Council alleged contained confidential information.
The Council alleges that Mr Naumovic breached the injunction by using the information, after the order was made, in a pleading filed in the Magistrates Court, in an action brought by Mr Naumovic against Mr Justin Freytag and the Council for defamation and misfeasance in public office.
Proceedings for contempt
Contempt of court has been a feature of the common law since the 12th century. It has been recognised as essential to the administration of justice. There is a public interest in the exercise of the contempt power in cases of disobedience to a court order.[1] Punishment for contempt serves two functions: first, enforcement of the process and orders of the court; and second, punishment of other acts which impede the administration of justice, such as obstructing proceedings or publishing comments on a pending trial.[2]
[1] AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46, (1986) 161 CLR 98 at 107.
[2] Fox, The History of Contempt of Court (1927) page 1.
There are two sources of the Court’s power to punish for contempt. They are the Court’s inherent power, which is a power of self-protection or a power incidental to the function of superintending the administration of justice;[3] and the power conferred by the Rules.[4]
[3] Porter v The King; Ex parte Yee [1926] HCA 9, (1926) 37 CLR 432 at 443.
[4] Supreme Court Civil Rules 2006 (SA) r 301-306.
The degree to which the public interest is served by instituting proceedings for contempt in relation to disobedience of a court order will depend on the character of the alleged contempt. Although a charge of contempt is heard and determined in the Court’s civil jurisdiction, the proceedings for contempt are essentially criminal in nature, with the consequence that all charges of contempt must be proved beyond reasonable doubt.[5]
[5] Hinch v Attorney-General (Vic) [1987] HCA 56, (1987) 164 CLR 15 at 49-50; Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525 at 534.
Elements of the offence
In order to prove a civil contempt of court involving a breach of an order of the Court the plaintiff has to prove the following:[6]
(i) that an order was made by the Court;
(ii) that the terms of the order are clear, unambiguous and capable of compliance;
(iii)that the order was served on the alleged contemnor or excused in the circumstances, or service dispensed with pursuant to the Rules of Court;
(iv) that the alleged contemnor has knowledge of the terms of the order; and
(v)that the alleged contemnor has deliberately and voluntarily breached the terms of the order. However, that does not require an intention to prejudice the administration of justice.[7] An honest belief that the breach did not constitute a contempt of court is not a defence to proceedings for contempt.[8]
[6] Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 at [31]-[32].
[7] Hinch v Attorney-General (Vic) [1987] HCA 56, (1987) 164 CLR 15 at 49-50.
[8] McNair Anderson v Hinch [1985] VR 309 at 314.
The order
The relevant order made by Judge Dart on 5 July 2019 is as follows:
There be a final injunction restraining the Defendant from accessing, using, copying, disseminating or otherwise dealing with, in any way, the Restricted Information. To avoid doubt the terms of this order do not preclude the Defendant from applying for the Restricted Information through lawful means.
“Restricted Information” is defined in the order as having the meaning defined in the affidavit of Colin John Pitman affirmed on 15 February 2019. That defined the “Restricted Information” as over 5,000 emails from email folders of certain former officers of the Council together with some associated email folders. There is no issue that the 23 documents were included within this definition.
The evidence
The Council relies on the fourth and fifth affidavits of Vasilios Savvas Marinos. Mr Marinos was cross-examined by Mr Naumovic. I accept the evidence of Mr Marinos which was largely concerned with the procedural history of the matter and setting out the evidentiary basis of the Council’s allegation that Mr Naumovic had used the Restricted Information in formulating the amended pleading in the Magistrates Court proceedings.
Mr Naumovic relied upon his affidavit of 16 December 2019. Mr Naumovic and his wife Ms Alexandra Walsh each gave evidence. Mr Naumovic was cross‑examined on his affidavit. Generally I am prepared to rely upon most of the evidence of Mr Naumovic for the purposes of making findings of fact, however, some of his evidence was vague and discursive and I entertained some doubt as to the veracity of his occasional claims that he had no memory of events in circumstances where it appeared convenient for him to do so. I formed a generally favourable impression of the evidence given by Ms Walsh, however, as will become apparent later in these reasons, I was not prepared to accept the implication in her evidence that she did not use some of the Restricted Information in drawing the amended pleading.
Onus of proof
SCR 305(3)(d) provides that in order to prove the charge of contempt of court, the Council must prove a breach of the order made by Judge Dart on 5 July 2019 beyond reasonable doubt. That onus is consistent with the common law.[9]
[9] Hinch v Attorney-General (Vic) [1987] HCA 56, (1987) 164 CLR 15 at 49-50; Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525 at 534.
Findings of fact
Mr Naumovic was elected as a member of the District Council of Coober Pedy on 20 November 2018. As a councillor, Mr Naumovic had a Council email account.
On 24 January 2019 the Governor declared the Coober Pedy Council to be a defaulting council with the consequence that Mr Naumovic was suspended from office.
In early February 2019, as a result of an information technology glitch on the Council’s server, numerous private email folders became accessible to the users of the Council’s system who logged into the email system. His email account permitted Mr Naumovic to access those private email folders. Those folders contained the 23 documents that were the subject of the proceedings brought by the Council against Mr Naumovic for breach of confidence which resulted in the orders made by Judge Dart.
Mr Naumovic’s wife, Ms Alexandra Walsh, gave evidence, which I accept, that during the period of the glitch, she used Mr Naumovic’s Council email account to access the private email folders and download the 23 documents which she copied.
On 15 February 2019 the Council commenced the action for breach of confidence seeking injunctive relief against Mr Naumovic in relation to the 23 documents which it alleged he had obtained during the glitch. These documents were the subject of the injunctive orders made by Judge Dart on 5 July 2019.
In November 2017 Mr Naumovic commenced proceedings in the Port Augusta Magistrates Court against Justin Freytag claiming damages for defamation.
On 13 August 2019 Ms Walsh, on behalf of Mr Naumovic, filed an amended statement of claim in the Magistrates Court which joined the Coober Pedy Council to the defamation proceedings brought against Mr Freytag. The amended statement of claim pleaded a new cause of action, namely, misfeasance in public office.
The Council alleges that Mr Naumovic used the Restricted Information the subject of the injunction granted by Judge Dart on 5 July 2019 in drawing the amended pleadings. This is the basis of the charge of contempt.
Mr Naumovic denies the Council’s allegation. He gave evidence that the matters referred to in the amended pleading in the Magistrates Court upon which the Council relies were matters known to him from sources other than the 23 documents constituting part of the Restricted Information. He gave conflicting evidence about reading the documents. He gave evidence that he only read documents 21 and 22. On another occasion he gave evidence that he did not read any documents. In the end, I proceed on the basis that he did read the specific documents that he claimed to have read. He further gave evidence that he did not download these documents. This was done by Ms Walsh. He gave evidence that it was Ms Walsh who prepared the amended pleading. In her evidence Ms Walsh confirmed that she downloaded the documents and drafted the amended pleading. I accept the evidence of Mr Naumovic and Ms Walsh on this topic.
The issues
The application raises two issues:
1.Does the evidence prove that the Restricted Information was used in drafting the amended pleading?
2. Is Mr Naumovic guilty of contempt of court for contravening the order made by Judge Dart in circumstances where it was his wife who drafted the amended pleading which it is alleged to have involved the use of the Restricted Information?
Was the Restricted Information used in drafting the amended pleading?
The Council has set out in the fifth affidavit of Vasilios Savvas Marinos sworn 19 September 2019 the basis upon which it alleges the evidence establishes beyond reasonable doubt that Mr Naumovic used documents 1, 6, 21, 22 and 23 in drafting the amended pleading.
It is alleged Mr Naumovic could not have known the information pleaded in the nominated paragraphs of the amended statement of claim but for him having accessed it from the Council’s confidential information contained in those documents. The Council contends that the only available inference is that the amended pleading was drafted by using those documents.
I turn to consider the evidence.
The Council alleges that Mr Naumovic used document number 6 in drafting the amended pleading in paragraph 18. The pleading in paragraph 18 is:
[redacted].
Document 6 is an email from Mr Freytag to Ms Hogan, who at the time was the Council’s Chief Executive Officer, which attached a draft document under cover of an email seeking Ms Hogan’s advice. The draft document was a proposed response by Mr Freytag to a preliminary report which sought a response from Mr Freytag to allegations apparently made against him by Mr Naumovic. The draft document included the following:
I have signed an Affidavit with SAPOL stating that I was recorded without my knowledge…
I have considered document number 6. While the document does refer to Mr Freytag having signed an affidavit with SAPOL, it does not state that the affidavit was about the plaintiff, neither does it name Mr Naumovic.
Mr Naumovic and Ms Walsh gave evidence that they had a list which identified the 23 documents the subject of the order made by Judge Dart.[10] That list described the date, author and addressee of the document. The list was provided by Mr Naumovic to the solicitors for the Council pursuant to an order made by Judge Dart on 19 February 2019. It was a list of the documents obtained by Mr Naumovic as a result of the glitch. The order made by Judge Dart on 5 July 2019 did not prevent Mr Naumovic from disclosing the list of documents.
[10] VSM5 to the third affidavit of Mr Marinos.
Ms Walsh did not admit using document 6 to plead paragraph 18. Indeed, she did not admit using any of the 23 documents in drawing the amended pleading. At its highest her evidence was that she had read the 23 documents and as a consequence she had knowledge of their contents when she drew the amended pleading.
In the circumstances I am not satisfied beyond reasonable doubt that the Council has proved that document 6 was used to draft paragraph 18 of the amended pleading.
The Council next alleges that Mr Naumovic used document number 1 in drafting the amended pleading in paragraph 47. The pleading in paragraph 47 is:
[redacted].
Document 1 is an email from a solicitor at Norman Waterhouse to Ms Hogan which [redacted].
I have considered document number 1. While the document does impliedly refer to a complaint made by Mr Naumovic that Mr Freytag made a false report to police which should be referred to the OPI because it alleges a criminal offence, I am not satisfied beyond reasonable doubt that the Council has proved that document 1 was used to draft paragraph 47 of the amended pleading. That is because if the drafter was using the document the date of the advice, namely 22 March 2017, would have been known to the drafter. The reference to the document being received on or about March or May 2017 at least raises a real possibility that the drafter was not using document number 1 for the purpose of drafting the amended pleading.
The Council alleges that Mr Naumovic used documents number 21 and 22 in drafting the amended pleading in paragraph 59. The pleading in paragraph 59 is:
On or about 16 and 17 May 2018 via email the Independent Investigator Brian Carr advised the Plaintiff that he was being guided by Council Lawyers in the preparation of his report and that he had obtained Legal Advice in relation to the Whistle-blower Protection Act. The Plaintiff raised his concerns with the Investigator about the independency of the investigation if Council Lawyers were involved. The Legal Advice received said to the effect that the Plaintiff had raised serious enough concerns that would qualify for Whistle‑blower Protection under the act. The Independent Investigator asked for a response from the Second Defendants Chief Executive Officer to that letter, but she declined to do so.
Document 21 is an email from Mr Carr to Ms Hogan dated 18 May 2018 which attached a letter of advice from the Council’s solicitors, Norman Waterhouse, to Mr Carr of 17 May 2018. The email has a subject heading “Draft Confidential Report/Whistle-blowers Protection Act”. It states inter alia that since furnishing the draft report to Ms Hogan, Mr Carr has received legal advice about the application of the Act which he attaches to his email. He refers to Mr Naumovic’s claim that he qualified as a whistle-blower and should have been provided with whistle-blower protection. He refers to Mr Naumovic’s complaint that he was discredited by the actions of Ms Hogan. He seeks a comment from Ms Hogan in relation to these complaints. [redacted].
Document 22 contains two emails of 18 May 2018. The first is the same email from Mr Carr to Ms Hogan which is part of document 21. The second is her reply. [redacted].
Mr Naumovic gave evidence that he was in email and verbal communication with Mr Carr concerning Mr Carr’s report. He says that his knowledge of the matters alleged in paragraph 59 comes from these communications. I have considered the emails identified by Mr Naumovic.[11] Those emails only disclose the fact that Mr Carr was seeking legal advice in relation to the “Whistle-blower Protection Act”. The emails do not disclose the content of that advice, nor do they refer to the request by Mr Carr that Ms Hogan provide a response to Mr Naumovic’s allegations concerning her conduct. Mr Naumovic gave evidence that he had telephone communications with Mr Carr around the time of the emails. He gave evidence that Mr Carr told him that he believed Mr Naumovic qualified for whistle-blower protection. Mr Carr was not called to refute this evidence. In the circumstances it is at least a real possibility that the pleading in paragraph 59 is based on statements made to Mr Naumovic by Mr Carr in the course of a telephone conversation or conversations.
[11] Exhibit GN34 to Mr Naumovic’s second affidavit.
Further, there is evidence, apart from document 22, which would explain how Mr Naumovic knew of Mr Carr’s request that Ms Hogan provide him with a response to Mr Naumovic’s allegation concerning her conduct and that she declined to do so. There is an email from Colin Pitman to Mr Naumovic on 29 May 2018 which attaches a copy of Mr Carr’s report of his investigation into Mr Naumovic’s complaint against Ms Hogan. It advises that Ms Hogan was not attending employment at that time due to illness and as a result was unable to respond to the report, but had been offered that opportunity. It is a reasonable possibility that the reference in paragraph 59 to Ms Hogan declining to respond to the request from Mr Carr to respond to the report was as a result of the use of this document.
In the circumstances I am not satisfied beyond reasonable doubt that the plea in paragraph 59 which refers to the legal advice proves that documents 21 and 22 were used to draft paragraph 59 of the amended pleading.
In the circumstances I am not satisfied beyond reasonable doubt that the plea in paragraph 59 which refers to the request for a response by Mr Carr to Ms Hogan resulted from the use of document 22.
The Council alleges that Mr Naumovic used documents numbered 21, 22 and 23 in drafting the amended pleading in paragraph 61. The pleading in paragraph 61 is:
The effect of the independent investigation by Brian Carr was to exonerate the Second Defendants Chief Executive Officer’s conduct without her responding to a question by the Independent Investigator regarding the Legal Advice on the Whistle-blower Act in relation to the Plaintiff disclosures and label to the Plaintiff as a nuisance with no credibility.
I have referred to documents 21 and 22 above. Document 23 is an email from Colin Pitman to Ms Hogan of 30 May 2018. It refers to his receipt of a copy of the assessor’s report in relation to Mr Naumovic’s complaint. It advises that the Council is aware that Ms Hogan had deferred consideration of a request that she comment on the report. However, it advises that the Council chose to take no action as the report exonerated her of the complaints against her. The email attaches a copy of the report. Mr Pitman also compliments her on her credibility and professionalism.
The Council alleges that the use of the expression “exonerate” in the plea in paragraph 61 evidences the use by the drafter of document 23 in which Mr Pitman refers to Ms Hogan being “exonerated” by the report. Mr Naumovic received a copy of the report from Mr Pitman by email on 29 May 2018. I note that the report does not use the expression “exonerated”, however, it can fairly be characterised as an exoneration of Ms Hogan’s conduct. I am not satisfied beyond reasonable doubt that the use of the expression “exonerate” in the pleading evidences the use of document 23 in drafting the plea. I am reinforced in this view given that the plea in paragraph 61 refers to Mr Naumovic being labelled as a nuisance with no credibility. That does not reflect the language of the report or document 23.
The Council alleges that Mr Naumovic used documents numbered 1, 21 and 22 in drafting the amended pleading in paragraph 70. The relevant pleading relied upon by the Council in paragraph 70 is:
The Plaintiff found information that confirmed he should have been afforded Whistle‑blower Protection by the Second Defendants Chief Executive Officer and that the conduct of the First Defendant directed at the Plaintiff should have been referred to the Office of Public Integrity for investigation …
I have referred to documents 1, 21 and 22 above.
While the reference to the plaintiff finding information contraindicates Mr Naumovic obtaining this information in the course of a conversation, I accept that it is reasonably possible that the pleader of paragraph 70 could have relied upon the contents of statements made by Mr Carr to Mr Naumovic that he should have been afforded whistle-blower protection by Ms Hogan in formulating that plea. Certainly I am not prepared to exclude that possibility merely on the basis of the use of the phrase “found information”. However, I am satisfied beyond reasonable doubt that the plea in paragraph 70 that the conduct of Mr Freytag directed at Mr Naumovic should have been referred to the OPI for investigation due to the seriousness of Mr Freytag making false reports about Mr Naumovic to the Coober Pedy police, could only have been made by the use of document 1. I am satisfied of this fact because of the coincidence in language between document 1 and the pleading in paragraph 70.
[redacted].
Neither Mr Naumovic nor Ms Walsh could provide any other satisfactory explanation for the factual basis for this plea. In this context I should refer to evidence given by Mr Naumovic in relation to the plea in paragraph 47. He testified that he had a discussion with the Mayor, Ms Provatidis, who told him:[12]
That they had legal advice that I was supposed to be under whistleblower protection and that the complaints that Justin Freytag was making about me to the police could be criminal in nature and she was going to refer it to the OPI which I've got the letter back and that's how I knew about it.
[12] T 133.28-33.
Mr Naumovic did not seek to explain the plea in paragraph 70 on the basis of this conversation. He does not refer to it in this context. Neither does Ms Walsh. In the circumstances I am satisfied beyond reasonable doubt that the plea in paragraph 70 was not made on the basis of such conversation.
The Council alleges that Mr Naumovic used documents 1 to 23 in drafting the amended pleading in paragraph 71. The relevant pleading relied upon by the Council in paragraph 71 is:
… to suppress the documents that the Plaintiff had found from being used which would expose corruption and fraud among other things.
The Council alleges that in a broad sense Mr Naumovic has used all the information he acquired by reason of the glitch to draw this plea.
It is unnecessary to describe the other of the 23 documents not referred to above. I am not satisfied beyond reasonable doubt that the contents of any of the 23 documents have been used to formulate the plea in paragraph 71. The reference in the plea to corruption and fraud is put at such a high level of generality that it is reasonably possible that the plea was drafted without reference to the contents of any of those documents.
The Council alleges that Mr Naumovic used documents 21 and 22 in drafting the amended pleading in sub-paragraph 89(e). The relevant pleading relied upon by the Council in sub-paragraph 89(e) is:
… [The Council and Pitman] have the knowledge that the Plaintiff qualified for Whistle‑blower Protection and yet is still being victimised by the Defendants.
I do not accept that Council has proved beyond reasonable doubt that the relevant pleading in sub-paragraph 89(e) was drafted by using documents 21 and 22. For the reasons I have given earlier, it remains a reasonable possibility that Mr Naumovic was aware that legal advice had been provided to the effect that the allegations he had made attracted the protection of the Whistleblowers Protection 1993 (SA) as a result of a telephone conversation or conversations he had with Mr Carr.
The Council alleges that Mr Naumovic used documents 21 and 22 in drafting the amended pleading in paragraph 92. The relevant pleading relied upon by the Council in paragraph 92 is:
The Plaintiff qualified for Whistle-blower Protection …
For the reasons given above in relation to the pleading in sub-paragraph 89(e), I do not accept that Council has proved beyond reasonable doubt that the relevant pleading in paragraph 92 was drafted by using documents 21 and 22.
The Council alleges that Mr Naumovic used documents numbered 21 and 22 in drafting the amending pleading in sub-paragraph 92(f). The relevant pleading relied upon by the Council in sub-paragraph 92(f) is:
… Acting Chief Executive Officer was in receipt of Legal advice that said to the effect that the matters raised by the Plaintiff did qualify for Whistle-blower protection …
The reference in sub-paragraph 92(f) to the Acting Chief Executive Officer is a reference to Mr Pitman.[13]
[13] See paragraph 2(c) of the Amended Statement of Claim, dated 9 August 2019, which is part of Exhibit VSM17 to Mr Marinos’ fourth affidavit.
I do not accept that the Council has proved beyond reasonable doubt that documents 21 and 22 were used to draft the plea in sub‑paragraph 92(f). The letter of advice from Norman Waterhouse which forms part of document 21 is not addressed to Mr Pitman. Documents 21 and 22 are not addressed to Mr Pitman. The documents do not evidence any legal advice received by Mr Pitman.
The Council alleges that Mr Naumovic used documents 21 and 22 in drafting the amended pleading in sub-paragraph 92(g). The relevant pleading relied upon by the Council in sub-paragraph 92(g) is:
[redacted].
[redacted].
It follows that I am satisfied that the Council has proved beyond reasonable doubt that the contents of documents 1, 21 and 22 were used in drafting the pleadings in paragraphs 70 and 92(g) of the amended statement of claim.
Is Mr Naumovic guilty of contempt of court if it was his wife who used the restricted information?
The Council contends that Mr Naumovic cannot avoid a finding that he breached the Court order of 5 July 2019 on the basis that it was Ms Walsh who drew the amended pleading. The Council submits that Mr Naumovic is liable for the acts of his wife as his agent.
I accept these submissions.
In Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd,[14] the English Court of Appeal cited with approval the judgment of Slade J in Hone v Page,[15] in a case concerning the failure of a proprietor of a minicab firm to comply with undertakings which he had given to the Court “by himself or by his servants or agents or any of them or otherwise howsoever”.[16] The undertakings were subsequently breached by the acts of his drivers. Slade J said:[17]
In the absence of authority, I am prepared to assume in favour of the defendant that the form of undertaking does not expose the giver of the undertaking to absolute liability for the acts of his servants or agents. Nevertheless, again in the absence of authority, I think that a man must be deemed to do a relevant act “by his servants or agents”, within the meaning of an undertaking given in this form, if (a) the persons who did the acts were his servants or agents, (b) the acts were done in the course of the service or agency, and (c) he either (i) authorised the acts or (ii) could reasonably have foreseen the possibility of such acts and failed to take all reasonable steps to prevent them.
[14] [1990] 1 WLR 926.
[15] [1980] FSR 500.
[16] [1980] FSR 500 at 502.
[17] [1980] FSR 500 at 507.
On the basis of this principle, in World Wide Fund for Nature (formerly World Wildlife Fund) v World Wrestling Federation Entertainment Inc,[18] Carnwath LJ accepted that there is to be implied into the standard form of an injunction a requirement on the party enjoined to take such steps as are within its power to prevent its independent contractors from performing acts which, if performed by the party enjoined, would be in breach.
[18] [2003] EWCA Civ 401 at [19], (2003) 56 IPR 653 at 659.
Finally, in Lade & Co Pty Ltd v Black,[19] Keane JA (as he then was) said that if a party can be guilty of contempt by reason of disobedience of an undertaking due to the carelessness or neglect of an employee, then, a fortiori, a party is guilty of contempt where the breach of the order has been brought about by the party’s own neglect of steps necessary to prevent the breach.[20] A person enjoined by a court order cannot avoid being found guilty of contempt for breach of that order by engaging in wilful blindness to the terms of the order.[21]
[19] [2006] QCA 294, [2006] 2 Qd R 531.
[20] [2006] QCA 294 at [63], [2006] 2 Qd R 531 at 550.
[21] Sun Newspapers Pty Ltd v Brisbane TV Ltd [1989] FCA 534 at [16], (1989) 92 ALR 535 at 538; Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394 at 403; Tchia v Rogerson (1992) 111 FLR 1 at 14-15.
In drawing the amended pleading, Ms Walsh was acting in the capacity as her husband’s agent for the purposes of conducting the litigation in the Magistrates Court. Both she and Mr Naumovic gave evidence that she took responsibility for the drafting of all documents in relation to those proceedings. Mr Naumovic relied upon his wife to do so. When she presented him with documents for his signature, he signed the documents and expected that she would arrange for them to be filed in Court. I am satisfied that in drafting the amended pleading she was acting as his agent. In doing so, she was acting within the authority he had impliedly conferred upon her. As a result, he is liable for her conduct.
It is no answer to the charge of contempt brought against Mr Naumovic that he did not personally draw the amended pleading or file it in the Court. The acts of Ms Walsh, as his agent, are his acts. As those acts are in breach of the Court’s order, Mr Naumovic is as liable for those acts as if he had performed them personally.
Have the elements been proved?
I am satisfied that the five elements referred to above have been proved beyond reasonable doubt.
First, there is no dispute that Judge Dart made the order.[22] Second, the terms of that order are clear, unambiguous and capable of compliance. This is an objective test. The order restrained Mr Naumovic from accessing, using, copying, disseminating or otherwise dealing with, in any way, Restricted Information which was the subject of the application brought by the Council. That information included the contents of the 23 documents. While the order did not preclude Mr Naumovic from applying for the Restricted Information through lawful means, that qualification did not permit Mr Naumovic using the Restricted Information to plead a case in the Magistrates Court. It did permit an application by him for the documents under the Freedom of Information Act 1991 (SA) (FOI Act) or an application for pre-action discovery in the Magistrates Court. However, in the absence of an order under the FOI Act or for discovery and production granting him access to the 23 documents, he was prohibited from using those documents in drafting his pleadings in the Magistrates Court. Third, Mr Naumovic was present in court when Judge Dart made the order and the sealed order was served on Mr Naumovic on 15 July 2019, i.e. before the amended pleading was filed on 13 August 2019.[23] Fourth, Mr Naumovic knew of the order.[24] He does not dispute this. Fifth, Mr Naumovic signed the pleading[25] and, in doing so, he adopted the pleading as his own.[26] In any event, for reasons explained above, the amended pleading was drafted and filed by Mr Naumovic’s agent, Ms Walsh, and constituted a breach of Judge Dart’s order of 5 July 2019 as I am satisfied beyond reasonable doubt that Ms Walsh used document 1 in drafting the plea in paragraph 70 and documents 21 and 22 in drafting the plea in paragraph 92(g). This was a deliberate use of the Restricted Information Mr Naumovic was restrained from using by that order.
[22] Fourth affidavit of Mr Marinos, paragraphs 5-6.
[23] T 163.20-23.
[24] T 164.18-38; T 167.18-32.
[25] T 148.26-27; T 150.2-4; T 155.33-38; and T 156.1-6.
[26] Maxwell v Minister for Immigration and Border Protection [2016] FCA 47 at [31], (2016) 249 FCR 275 at 285.
Conclusion
I find Mr Naumovic guilty of contempt of court. I will hear submissions on penalty.
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