Dowling v Prothonotary of the Supreme Court of New South Wales

[2018] NSWCA 340

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340

Hearing dates:

16 November 2018

Date of orders:

21 December 2018

Decision date:

21 December 2018

Before:

Basten JA at [1];
Macfarlan JA at [68];
Meagher JA at [139]

Decision:

(1)   To the extent that the appellant requires an extension of time within which to challenge the orders of Beech-Jones J made on 3 February 2017, refuse to extend time.
(2)   Dismiss the appeal in respect of the appellant’s convictions for contempt of court.
(3)   In place of order (3) made by this Court on 16 November 2018, commit Shane Dowling to prison for 4 months to date from 22 August 2018, expiring on 21 December 2018.

Catchwords:

CONTEMPT – appeal against conviction and penalty – scandalising conduct in face of court – breach of court suppression orders – whether appellant’s conduct constituted exercise of implied constitutional freedom of political communication – whether suppression orders ambiguous or uncertain – whether suppression orders should be set aside – failure to comply with Uniform Civil Procedure Rules 2005 (NSW), r 40.7

 

CONTEMPT – power of committal – whether Crimes (Sentencing Procedure) Act 1999 (NSW) applied

  CONSTITUTIONAL LAW – implied constitutional freedom of political communication – contempt of court – whether appellant’s conduct constituted exercise of that freedom – whether laws pursuant to which suppression orders were made incompatible with that freedom

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 28
Constitution, Ch III
Contempt of Court Act 1981 (UK), s 10
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 7(b), 8(1), 10, 16
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 4, 44; Pt 2, Div 1; Pt 3
Criminal Appeal Act 1912 (NSW), s 2, 3, 5, 6
Supreme Court Act 1970 (NSW), ss 17, 75A, 101; Sch 3
Supreme Court Rules (NSW), rr 40.6, 40.7
Uniform Civil Procedure Rules 2005 (NSW), r 40.7

Cases Cited:

APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44
Attorney General (NSW) v Whiley (1993) 31 NSWLR 314
Ayotte v Planned Parenthood of Northern New England 546 US 320 (2006)
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32
Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21
Costa v The Public Trustee of NSW [2008] NSWCA 223; (2008) 1 ASTLR 56
Dahnke-Walker Milling Co v Bondurant 257 U.S. 282, 289 (1921)
Danchevsky v Danchevsky [1975] Fam 17, 21; [1974] 3 All ER 934
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
GKD v Director General, Attorney General's Department [2012] NSWCA 219
Hinch v Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56
Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4
House v The King (1936) 55 CLR 499; [1936] HCA 40
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; [1955] HCA 12
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198; (2000) 181 ALR 694
John Holland Group Pty Ltd v Industrial Relations Court of NSW [2006] NSWCA 93; (2006) 153 IR 97
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25
McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34
McGuirk v University of New South Wales [2010] NSWCA 104
Menzies v Paccar Financial Pty Ltd (2016) 93 NSWLR 88; [2016] NSWCA 280
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4
Morris v Crown Office [1970] 2 QB 114
NCR Australia v Credit Connection [2005] NSWSC 1118
North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Parker v Comptroller-General of Customs [2007] NSWCA 348
Peters v Hobby 349 US 331 (1955)
Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969
Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277
Prothonotary of the Supreme Court of New South Wales v Dowling (No 6) [2018] NSWSC 1715
Re Lonrho plc [1990] 2 AC 154
Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162; [2002] HCA 48
Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506; [2015] NSWCA 125
State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161
The King v Dunbabin (1935) 53 CLR 434; [1935] HCA 34
The Queen v Hughes (2000) 202 CLR 535; [2000] HCA 22
Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46
Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Wood v Galea (1996) 84 A Crim R 274
Wotton v State of Queensland (2012) 246 CLR 1; [2012] HCA 2
Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262

Texts Cited:

Arlidge, Eady & Smith on Contempt (Sweet & Maxwell, 3rd ed, 2005)
C J Miller and D Perry, Miller on Contempt of Court (4th ed, OUP, 2017)
Henry J Abraham, The Judicial Process (6th ed, OUP, 1993)

Category:

Principal judgment

Parties:

Shane Dowling (Appellant)
Prothonotary of the Supreme Court of New South Wales (Respondent)

Representation:

Counsel:
Self-represented Appellant
D Kell SC / E Jones (Respondent)
M Izzo SC /A Bhasin (Amicus)

  Solicitors:
Self-represented Appellant
Crown Solicitor’s Office (Respondent)

File Number(s):

CA 2018/294449

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law – Civil

Citation:

[2017] NSWSC 664; [2018] NSWSC 1301

Date of Decision:

03 August 2017

Before:

Wilson J

File Number(s):

SC 2017/94322

HEADNOTE

[This headnote is not to be read as part of the judgment]

On the morning of 3 February 2017 Mr Shane Dowling, the appellant, appeared before a registrar of the Court in relation to a defamation proceeding in the call-over list. He called the registrar a paedophile, or suspected paedophile, as well as a known bribe-taker, and called another named judge a paedophile. He also referred to a formal complaint that he had made against other judges.

On the afternoon of the same day, on the motion of the Prothonotary of the Supreme Court of New South Wales, Beech-Jones J made orders:

(1)   Prohibiting from disclosure the “contents of” Exhibit 1, which was the transcript of the proceedings before the registrar, and

(2)   Suppressing (a) the “content of the allegations” made before the registrar, (b) the fact that the registrar and judges of the Supreme Court were the subject of the allegations; and, (c) “that the allegations were made”.

On 5 February 2017, after having been served electronically with a copy of Beech-Jones J’s orders, the appellant published an article and an audio and visual recording of the call-over on a website which he controlled.

On 27 March 2017 the Prothonotary charged Mr Dowling with contempt of court: (a) in making the allegations made in court before the registrar (“Count 1”); (b) in disclosing the contents of the transcript of the proceedings before the registrar, contrary to Order (1) (“Count 2”); and, (c) in breaching Order (2) (“Count 3”).

By judgment of 3 August 2017, Wilson J of the Common Law Division found Mr Dowling guilty on each of the three charges of contempt ([2017] NSWSC 664). On 22 August 2018 her Honour sentenced him to an aggregate term of 18 months’ imprisonment ([2018] NSWSC 1301).

Appeal against contempt convictions

Held, dismissing the appeal (Macfarlan JA dissenting as to the conviction on Count 2):

(1) The convictions were not inconsistent with the implied constitutional freedom of political communication: [10]-[16], [105]-[116], [139].

(2) As the orders founding the contempt convictions were orders of a superior court, they were valid irrespective of whether they were properly made: [4], [116], [127], [139].

(3)   Order (1) made on 3 February 2017 was not ambiguous. It therefore provided a proper foundation for the conviction on Count 2: [17]-[28], [122] (Macfarlan JA dissenting), [139].

Appeal against penalty

Held, allowing the appeal:

(1) The primary judge did not err in committing Mr Dowling to a term of imprisonment in respect of Counts 2 and 3, even where the Prothonotary did not comply with Uniform Civil Procedure Rules 2005 (NSW) r 40.7. The primary judge properly exercised her power under r 40.7(5) to dispense with service of the sealed orders: [29]-[32], [123]-[126], [139].

Per Basten JA (Meagher JA agreeing)

(1)   Whilst it may be relevant to punishment (as distinct from conviction) that orders of a superior court upon which contempt convictions are based were not properly made, in this case:

(a)   Order (1) was not invalid as it was neither uncertain nor ambiguous, and

(b)   The challenges to Order (2) should not be permitted on discretionary grounds.

(2) Committal to prison for four months was a sufficient response to the three charges of contempt as these involved closely related conduct: [61]-[66], [139].

Discussion of the nature of contempt proceedings: [33]-[58].

Per Macfarlan JA:

(1)   The appeal against the making of Orders (1) and (2) should be allowed ([127]-[132]); and,

(2) Taking that into account, as well as the quashing of the conviction on Count 2, it was appropriate to resentence the appellant to committal to prison for four months: [133]-[137].

Judgment

1. BASTEN JA: The applicant, Shane Dowling, seeks leave to appeal from a judgment of Wilson J in the Common Law Division finding him guilty on three charges of contempt of court laid against him by the Prothonotary. [1] These findings led to his committal to prison on 22 August 2018 for 18 months, with a “non-parole period” of 13 months. [2] The “sentence” commenced on 22 August 2018.

   1. Prothonotary of the Supreme Court of New South Wales v Shane Dowling [2017] NSWSC 664.

   2. Prothonotary of the Supreme Court of New South Wales v Shane Francis Dowling [2018] NSWSC 1301.

2. At the hearing on 16 November 2018 this Court set aside the sentence and ordered that the appellant serve a term of imprisonment for four months, expiring on 21 December 2018. The Court otherwise reserved judgment in the matter.

Background circumstances

3. The circumstances giving rise to the contempt proceedings were as follows:

1. On the morning of 3 February 2017 Mr Dowling appeared before a registrar of the Court in relation to a defamation proceeding then in the call-over list. He invited the registrar to transfer the matter to the duty judge because he had called the registrar (and another named judge) a paedophile or suspected paedophile.

2. On the afternoon of 3 February 2017, on the motion of the Prothonotary, Beech-Jones J made orders prohibiting disclosure or publication of (i) the “contents of” the transcript of the proceedings before the registrar; (ii) the “content of the allegations” made before the registrar; (iii) the fact that the registrar and judges of the Supreme Court were the subject of the allegations, and (iv) that the allegations were made. [3]

   3. See orders set out by Macfarlan JA at [72] below.

3. Two days later, after having been served electronically with a copy of the orders made by Beech-Jones J, the applicant published certain material on internet addresses which he controlled.

4. On 27 March 2017 the Prothonotary laid three charges of contempt of court based on the publishing on the internet of:

1. the allegations made in court before the registrar (count 1);

2. the disclosure of the contents of the transcript of the proceedings before the registrar (count 2), and

3. breach of the further non-publication orders made by Beech-Jones J (count 3).

Application for leave to appeal – non-publication orders

4. The applicant sought leave to appeal from the orders made by Beech-Jones J on the afternoon of 3 February 2017. Even if successful, that application could not affect his convictions for contempt, because the orders were valid for so long as they remained on foot, which included the time when he uploaded material in breach of those orders to the internet. On the other hand, it is arguable that the objective seriousness of the offending might be lessened if the appellant could demonstrate that the orders should not have been made in the first place.

5. For reasons explained below, I would refuse the appellant an extension of time to appeal from the orders made on 3 February 2017. In brief, one order was replaced when the matter returned before Beech-Jones J on 8 February 2017; there was no allegation of any breach of the order made on 8 February 2017. They have all now been vacated. [4]

   4. Prothonotary of the Supreme Court of New South Wales v Dowling (No 6) [2018] NSWSC 1715 (“Dowling No 6”)

Application for leave to appeal – contempt convictions

6. The applicant has lodged an appeal from the convictions on the three charges of contempt of which he was found guilty on 3 August 2017. These orders constituted an interlocutory judgment, final judgment not being delivered until he was committed to prison on 22 August 2018.

7. The contempt proceedings engaged the civil jurisdiction of the Court. [5] The right of appeal is conferred by s 101(5) of the Supreme Court Act 1970 (NSW). In Prothonotary of the Supreme Court of New South Wales v Dangerfield,[6] the Court held that leave is not required pursuant to s 101(2)(r). The determinative reasoning was as follows:

“[9] First, s 101(5) provides a right of appeal in any proceedings that relate to contempt which, on its face, is independent of the threshold leave requirement in s 101(2)(r) as to the amount or value in issue. Secondly, the punishment which the Supreme Court can impose for contempt is at large and may include imprisonment: Field v New South Wales Crime Commission. [7] The threshold amount or value of $100,000 referred to in s 101(2)(r) cannot have been intended to apply where the matter in issue is punishment for contempt.”

5. Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [35], [42] (French CJ, Kiefel, Bell, Gageler and Keane JJ); [65] (Nettle J).

6. [2016] NSWCA 277 at [5]-[10] (Gleeson JA, Beazley ACJ and Payne JA agreeing).

7. [2009] NSWCA 144.

8. Section 101(2)(r) does apply where no amount or property right is in issue. [8] At least one purpose of s 101(5) is to address appeals in the criminal jurisdiction, consistently with s 17(3) of the Supreme Court Act. Appeals in criminal matters may nevertheless come to this Court under s 101(1). [9] However, unlike the general conferral of appeal rights under s 101(1), subs (5) is not expressed to be subject to other provisions in the Act. If leave were required it would be granted, because the matter involves serious issues as to the administration of justice, and because the liberty of the individual is at stake.

   8. GKD v Director General, Attorney General's Department [2012] NSWCA 219 at [5] (Campbell JA; Meagher JA agreeing).

   9. Parker v Comptroller-General of Customs [2007] NSWCA 348 at [39].

9. There is no doubt that the appellant can challenge the findings of guilt as part of the challenge to the final orders. The appeal to this Court is governed by s 75A of the Supreme Court Act.

(a)   implied constitutional freedom of political communication

10. The primary basis upon which the applicant sought to challenge the suppression orders and the contempt charges relied upon the implied constitutional freedom of political communication.

11. In this area of discourse, it is easy to adopt language suggesting there is a constitutional right to free speech which renders political speech immune from regulation or prohibition. That is not so: the constitutional implication imposes constraints on the valid operation of laws which may regulate or prohibit political communication. [10] There are two questions to be addressed. As explained in Wotton v State of Queensland,[11] “The first question asks whether in its terms, operation or effect, the law effectively burdens freedom of communication about government or political matters. If this is answered affirmatively, the second question asks whether the law nevertheless is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government ….” Unless the first question is answered affirmatively, the second question does not arise.

    10. Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 at [266] and fn 324 (Crennan, Kiefel and Bell JJ).

    11. (2012) 246 CLR 1; [2012] HCA 2 at [25] (French CJ, Gummow, Hayne, Crennan and Bell JJ).

12. It is necessary to identify the relevant State laws. The first order made by Beech-Jones J on 3 February was made under s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“Court Non-publication Orders Act”). The second order was made in reliance on the Court’s inherent power to suppress publication of statements made in court about judicial officers. The contempt charges were laid under the Supreme Court’s general law powers to punish for contempt of court and the Supreme Court Rules 1970 (NSW), Pt 55.

13. Because the constitutional question is to be answered by reference to the scope and operation of the impugned laws, and not by reference to the particular communication in question, the first step involves statutory interpretation. [12] The question is dealt with at a high level of abstraction, contrary to the usual method of determining questions of law. In some cases it will be possible to read down the impugned law so that it does not infringe the constitutionally protected area of communication. [13] In other cases a different exercise will be undertaken, namely a determination that, because the law cannot be read down and therefore may have an operation which infringes the constitutional constraint, it will be necessary to ask whether that part of the law which infringes can be “severed”, so as to preserve the valid area of operation.

    12. Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [3] (Gleeson CJ).

    13.    See eg Coleman v Power at [200] (Gummow and Hayne JJ).

14. This bifurcated exercise has an air of artificiality. [14] It also tends to infringe the principle that if the court can avoid determining a case on a constitutional basis it should do so. Both in the United States and in this country it is a well-established principle that the court “reaches constitutional issues last, not first”. [15] In the United States, at least in some cases, the constitutional validity of a law may be assessed on an “as applied” basis, and not by reference to its potential (or facial) operation. [16] As explained in Dahnke-Walker Milling Co v Bondurant [17] and approved in Ayotte v Planned Parenthood of Northern New England:[18]

“A statute may be invalid as applied to one state of facts and yet valid as applied to another …. Besides, a litigant can be heard to question a statute's validity only when and so far as it is being or is about to be applied to his disadvantage.”

14. See North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [75] (Gageler J).

15. Henry J Abraham, The Judicial Process (6th ed, OUP, 1993) p 364 (quoting Frankfurter J); Peters v Hobby 349 US 331 (1955) at 338 (Warren CJ for the Court), 349 (Black J); The Queen v Hughes (2000) 202 CLR 535; [2000] HCA 22 at [66] (Kirby J); Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162; [2002] HCA 48 at [135] (Gummow J); John Holland Group Pty Ltd v Industrial Relations Court of NSW [2006] NSWCA 93; (2006)153 IR 97 at [10] (Spigelman CJ).

16. Cf Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [444] (Hayne J using an “as applied” approach with respect to laws made under the defence power).

17. 257 U.S. 282, 289 (1921).

18. 546 US 320 at 329 (2006).

15. In the present case the laws in question cover what can be described as scandalising contempt, and defiance of orders suppressing the publication of statements made in the course of court proceedings. Those laws confer powers on the courts to protect the integrity of the administration of justice. A State law which deprived the Supreme Court of such powers would be likely to run foul of the principle established in Kirk v Industrial Court of New South Wales,[19] because it would deprive the Court of an essential characteristic of a superior court of record. It would render the Constitution itself incoherent if the laws protected from legislative interference under Ch III were found to contravene the implied freedom of political communication under Ch II.

    19. (2010) 239 CLR 531; [2010] HCA 1.

16. There are of course limits to those powers, but they are inherent in the powers themselves: they do not depend upon the constitutionally protected freedom of political communication. Accordingly, the applicant’s reliance on the implied freedom is misplaced.

(b)   invalidity of suppression orders

17. The suppression orders were also attacked in their own terms. If the orders were invalid in the sense of being incapable (as made) of being enforced by committal for contempt, the contempt charges and convictions should be set aside.

18. The first order was attacked on the basis that it was ambiguous in so far as it prohibited from disclosure “the contents of Exhibit 1”, being a transcript of the proceedings before the registrar. The order is neither uncertain nor ambiguous. Exhibit 1 was a transcript; its contents were the statements made in court which it recorded. The order prohibited disclosure of those statements.

19. Nor was it in doubt that the applicant published those statements. He did so by publishing the contents of an audio-visual recording which he had made in court (probably unlawfully). There was no evidence of any discrepancy between the statements so recorded and the transcript. Accordingly he published the contents of the transcript.

20. An audio-visual recording may contain more information than a written transcript. It records the tone of voices, pauses and, though not usefully in this case, visual information. The fact that it records, and its publication discloses, more than the mere words spoken does not mean that it does not disclose the words spoken.

21. There was a challenge to the term “allegations” in order (2) on the basis that no details were identified. The time, place and speakers were, however, identified. Further, read in context the reference in order (2) to “the contents of the allegations” can only be understood as a reference to the contents of the allegations contained in Exhibit 1, namely the transcript. There was no reliance on anything Mr Dowling said in Court which was not in the transcript. Nor was there any suggestion that the “content of the allegations” was an uncertain phrase if one had regard to the transcript, or the audio-visual recording.

22. Furthermore, complaints as to the lack of specificity in non-publication orders as to the information which should not be published must be treated with caution. The order can only be obeyed if published; for the order to repeat the very information which is sought to be suppressed would be self-defeating.

23. There were two other challenges to order (2), namely (i) that the order was too broad, because it could have been limited, and appropriately should have been limited, to the names of the judicial officers who were the subject of the abusive attack, and (ii) it was inutile because the allegations were already in the public domain, having been published on the applicant’s website prior to their repetition in court. Each of these challenges has some force, but they should not be entertained in this appeal for three reasons.

24. First, the orders were made ex parte on an interim basis; if the applicant wished to have them varied, he had an opportunity to do so when the matter was relisted before Beech-Jones J on 8 February. If that timing precluded his attendance, he could have applied for the matter to be relisted at a different time. He neither attended nor made such an application.

25. Secondly, the fact that the orders, in their terms, may have been ineffective to stop the scandalising behaviour is not a reason for not making them. There were no submissions in the Court as to the nature and detail of the evidence before Beech-Jones J; nor is it necessarily inappropriate to make an order which goes only part of the way to remedying a perceived problem. It was a matter for the Prothonotary, or some other authority, to seek further orders if they were deemed necessary.

26. Thirdly, as noted above, the orders have, in any event, been vacated on the motion of the Prothonotary: see Dowling (No 6). [20] The motion was dealt with by Wilson J, who had detailed knowledge of the procedural background, in part as a result of having dealt with the contempt charges. There is no purpose in this Court repeating that exercise, but on more limited information.

    20.    See fn 4 above.

27. The appellant’s notice of appeal filed on 26 September 2018 did not purport to challenge those orders. He would need an extension of time to lodge such an appeal. On the basis that such an application is implicit in his submissions, and for the reasons set out above, I would refuse an extension of time to challenge the validity of the orders made on 3 February 2017 by Beech-Jones J.

(c)   conviction on count 2

28. Because, for the reasons set out above, order (1) made by Beech-Jones J on 3 February 2017 (prohibiting publication of the contents of the transcript) was neither ambiguous nor uncertain in objective terms, and was not misunderstood by the applicant, there is no basis to set aside the conviction on count 2. For the further reasons given by Macfarlan JA, the challenge to the convictions on count 1 and 3 should also be rejected.

Challenges to sentence

(a)   availability of committal power

29. At the sentencing hearing, the applicant challenged the power of the primary judge to commit him to prison, that being enforcement of a judgment by committal in circumstances where r 40.7 of the Uniform Civil Procedure Rules 2005 (NSW) had not been complied with. That rule relevantly provides:

40.7   Service of copy of judgment before committal or sequestration

(1)   A judgment is not enforceable by committal or sequestration unless:

(a)   a sealed copy of the judgment is served personally on the person bound by the judgment, and

…

(3)   The sealed copy of the judgment must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property:

…

(c)   where the judgment requires the person to abstain from doing an act, if the person disobeys the judgment.

(4)   If a person liable to committal or sequestration by way of enforcement of a judgment has notice of the judgment:

(a)   by being present when the judgment is directed to be entered, or

(b)   by being notified of the terms of the judgment, whether by telephone, telegram or otherwise,

the judgment may be enforced against that person by committal or sequestration without service having been effected in accordance with this rule.

(5)   The court may dispense with service under this rule.

30. Read as a whole, the intended scope and operation of the constraints imposed by subrr (1) and (3) are unclear. They require both that (i) a sealed copy of the judgment be served personally on the person bound by the judgment and that (ii) the sealed copy bear a notice warning the person that he or she is liable to imprisonment for disobeying the judgment. On one view, subr (4) effectively disapplies subr (1) and its requirement for personal service whenever a person bound by the judgment has notice of the judgment. That condition was satisfied in the present case. Accordingly, personal service was not required.

31. What is less clear is whether the effect of subr (4) was also to dispense with the need to comply with subr (3). It seems unlikely that “the judgment” which is directed to be entered, pursuant to par (4)(a), and the “terms of the judgment” which may be conveyed orally pursuant to par (b), should be understood to include a notice in the terms required by subr (3). Indeed, subr (3) appears only to operate with respect to the sealed copy of the judgment which is to be served personally pursuant to subr (1). On that construction, there was no constraint upon the enforcement of the orders made on 3 February 2017 against the applicant, in circumstances where he had been given written notice of them, even though not by personal service and without the notice contemplated by r 40.7(3).

32. The primary judge exercised her power to dispense with service under the rule, pursuant to subr (5). There was no error in taking that course.

(b)   nature of committal power

33. The primary judge approached the determination of an appropriate punishment as a form of sentencing governed by the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”). Although there is authority to support that approach, it may be doubted that the Sentencing Procedure Act applies where proceedings are commenced in the civil jurisdiction of the Supreme Court.

Sentencing Procedure Act

34. The Sentencing Procedure Act itself is non-committal on the point. It undoubtedly deals with sentences, where “sentence” (as a noun) is defined to mean “the penalty imposed for an offence”: s 3(1), sentence. It speaks uniformly through its provisions of a “court” imposing a sentence. The term “court” is defined in the following manner:

3   Interpretation

(1)   In this Act:

…

court means:

(a)   the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or

(b)   any other court that, or person who, exercises criminal jurisdiction,

but, subject to the Children (Criminal Proceedings) Act 1987, does not include the Children’s Court or any other court that, or person who, exercises the functions of the Children’s Court.

35. Part 2 of the Sentencing Procedure Act deals with penalties that may be imposed. The first provision (Div 1) provides as follows:

4   Penalties generally

(1)   The penalty to be imposed for an offence is to be the penalty provided by or under this or any other Act or law.

(2)   The penalty to be imposed for a statutory offence for which no penalty is so provided is imprisonment for 5 years.

(3)   Part 3 applies to the imposition of all penalties imposed by a court, whether under this Act or otherwise.

While it is true that s 4(3) envisages penalties imposed otherwise than under the Sentencing Procedure Act, it is by no means clear that that provides some broader operation than would otherwise be accorded to the terms of Pt 3. If the definition of “court” carries with it the inference, as it would appear to, that it encompasses courts exercising criminal jurisdiction, the terms of s 4(3) do not suggest that, as if by a side-wind, the scope of the Act has been extended to courts in the exercise of their civil jurisdiction.

36. While it may be accepted that there is no clear distinction between civil and criminal contempts, there are clear distinctions drawn in relation to all the courts identified in s 3(1) between the exercise of civil and criminal jurisdiction. [21]

    21. In relation to the Supreme Court, see Supreme Court Act 1970 (NSW), s 17 and Sch 3.

37. Each of the Criminal Procedure Act 1986 (NSW) and the Crimes (Administration of Sentences) Act 1999 (NSW) now defines “court” in the same terms as the Sentencing Procedure Act. In its long title, the Criminal Procedure Act is described as an Act “relating to the prosecution of indictable offences … and proceedings for summary offences … and for other purposes.” It may be inferred from the subject-matter and context that the term “court” applies only to the identified courts when exercising criminal jurisdiction.

Nature of contempt proceedings

38. Disobedience of a court order made in civil proceedings was not an offence at common law. There was therefore a distinction reflected in the language of “committal” or “sequestration”, as opposed to “sentence”, where a punishment was imposed for contempt. That language is found UCPR r 40.6, which relevantly provides:

40.6   Doing or abstaining from doing an act (cf SCR Part 42, rule 6)

(1)   This rule applies in the following circumstances:

…

(c)   if:

(i)   a judgment requires a person to abstain from doing an act, and

(ii)   the person disobeys the judgment,

but does not apply to a judgment for the payment of money (including a judgment for the payment of money into court).

(2)   In circumstances to which this rule applies, a judgment may be enforced by one or more of the following means:

(a)   committal of the person bound by the judgment,

(b)   sequestration of the property of the person bound by the judgment,

(c)   if the person bound by the judgment is a corporation:

(i)   committal of any officer of the corporation, and

(ii)   sequestration of the property of any officer of the corporation.

39. That language is repeated in the UCPR, r 40.7, considered above.

40. More generally, the criminal process operates with respect to past conduct and punishment for past conduct. A committal for contempt may constitute punishment for past conduct, but that is not necessarily the case. As explained in Miller on Contempt of Court: [22]

“Historically, civil contempt through non-compliance with a court order could be dealt with by committal for a fixed or for an indefinite term. The form of the committal order and the duration of the term of imprisonment depended upon the purpose for which committal was being employed. Committal for a fixed term was appropriate where the objective was punishment for past disobedience. However, where committal was being employed for a remedial or coercive purpose an indefinite term might be preferable as carrying the maximum incentive to comply with the original order.”

22.    C J Miller and D Perry, Miller on Contempt of Court (4th ed, OUP, 2017) at [2.17].

41. The authors of Miller referred to the statement by Lord Denning MR in Danchevsky v Danchevsky:[23]

“When it is a matter of getting a person to do something in the future – and there is a reasonable prospect of him doing it – then it may be quite appropriate to have an indefinite order against him and to commit him until he does do it.”

23. [1975] Fam 17, 21; [1974] 3 All ER 934, 937.

42. As explained in Arlidge, Eady & Smith on Contempt, [24] “[a]n effective sanction (deriving from canon law) was the practice that one who was in contempt might not be heard further in the same litigation, for his own benefit, unless and until he had purged his contempt.” The practice was described as “primarily coercive in nature rather than punitive.” Such orders have been made in more recent times in aid of family law proceedings for disclosure of the whereabouts of children and in proceedings against whistle-blowers and journalists for disclosure of sources. In the UK, such cases may arise under s 10 of the Contempt of Court Act 1981 (UK). [25]

    24.    (Sweet & Maxwell, 3rd ed, 2005) at [12-66].

    25.    See Miller at [4.87]-[4.96].

43. The distinct nature of proceedings for contempt is demonstrated by cases dealing with contempt in the face of the court. In Morris v Crown Office [26] a trial judge was called on to deal with a group of university students who disrupted court proceedings in the High Court in London, requiring the proceedings to be adjourned. A number of the students were arrested and brought before the court to be dealt with for contempt; some were imprisoned for three months. Pursuant to the Criminal Justice Act 1967 (UK) a sentence of imprisonment for a term of not more than six months was required to be suspended. While committal in respect of a civil contempt was expressly excluded from the operation of the Act, the conduct in question was a criminal contempt and not a civil contempt. Lord Denning MR held that the judge “still has power at common law to commit instantly to prison for criminal contempt, and this power is not affected in the least by the provisions of the Act of 1967.” [27] Davies LJ, agreeing with Lord Denning MR, stated: [28]

“What may loosely be called the criminal law statutes apply in my view to the ordinary process of criminal prosecution, whether in a court of summary jurisdiction or at assizes or quarter sessions. Quite apart from the difficulty, to which my Lord adverted, in the way of enforcing a suspended sentence, if such were passed for a criminal contempt, there are a number of provisions in the criminal law statutes, as I am calling them, which obviously have no application whatsoever to proceedings for contempt. Take probation: it would be quite impossible, I think, for a judge dealing with a case of contempt to make a probation order. Yet such a course is possible in all criminal cases.”

26. [1970] 2 QB 114.

27.    Morris at 125A.

28.    Morris at 126H-127B.

44. Lord Salmon LJ stated: [29]

“This power to commit for what is inappropriately called ‘contempt of court’ is sui generis and has from time immemorial reposed in the judge for the protection of the public. Although the point is by no means free from difficulty, I agree with my Lords that Parliament cannot be taken to have intended that this power should be fettered by the Criminal Justice Acts of 1948 and 1967. To my mind it is plain that Parliament never intended these Acts to apply to proceedings such as these.”

29.    Morris at 129E.

45. In short, in the very case which has conventionally been treated as a criminal offence, namely contempt in the face of the court, the Court of Appeal rejected the possibility that criminal law statutes relating to procedure and sentencing should apply. A similar issue to that addressed in Morris would arise with respect to the operation of the Children (Criminal Proceedings) Act 1987 (NSW), involving persons under 18 years of age (or under 21 years of age when charged). [30]

    30. Children (Criminal Proceedings) Act 1987 (NSW), s 28.

Case law in NSW

46. Neither the subject-matter, scope and purpose of the Sentencing Procedure Act, nor the procedures, processes and purposes of the law of contempt suggests that the Sentencing Procedure Act should apply with respect to proceedings in the civil jurisdiction of the court for contempt. However, there is authority in this Court which supports the contrary conclusion. In Attorney General (NSW) v Whiley [31] the Court held that the Sentencing Act 1989 (NSW), the predecessor to the Sentencing Procedure Act, applied “where a person is imprisoned for contempt.” [32] It is clear from the commencement of the discussion that the Court was considering a conviction for criminal contempt, noting: [33]

“Both counsel pressed upon the Court the view that [the Sentencing Act] did apply and it is difficult at first sight to see why that view is not correct. Contempt is an indictable offence which can be dealt with summarily. A conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular.”

The phrase “an offence which is criminal in nature” appeared to echo the words of Deane J in Hinch v Attorney-General (Vic),[34] that all proceedings for the imposition of a fine, committal to prison, or sequestration of property, are “essentially criminal in nature”. Nevertheless, some three months after Whiley Handley JA (who had been a member of the bench in Whiley), noted in Young v Registrar, Court of Appeal (No 3) that Whiley was dealing only with a criminal contempt. [35] Handley JA doubted the correctness of another decision holding “that the Sentencing Act  1989 applies to committals to prison for civil contempts.”[36]

31. (1993) 31 NSWLR 314 (Clarke, Meagher and Handley JJA).

32.    Whiley at 321D.

33.    Whiley at 320A-B.

34. (1987) 164 CLR 15 at 49; [1987] HCA 56.

35. (1993) 32 NSWLR 262 at 288F-G.

36. Ibid.

47. When Young was decided, this Court took the view that the distinction between civil and criminal contempts applied to the standard of proof so that, for disobedience of an order of a civil court, the civil standard applied, rather than proof beyond reasonable doubt. [37] That authority was later overruled by the High Court in Witham v Holloway,[38] the joint reasons of Brennan, Deane, Toohey and Gaudron JJ stating:

“Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking.

The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt.”

37.    Young at 288F.

38. (1995) 183 CLR 525 at 534; [1995] HCA 3.

48. Whiley was applied with respect to the Sentencing Procedure Act by Studdert J in Principal Registrar of the Supreme Court of New South Wales v Jando, without addressing the category of the contempt. [39]

    39. (2001) 53 NSWLR 527; [2001] NSWSC 969.

49. The distinction being illusory, it would be anomalous to have different statutory regimes applicable to punishment for a civil contempt as opposed to a criminal contempt. Particularly is that so where, as in the present case, punishment may be imposed for a number of contempts, one of which may be criminal and another civil. The better view is that a single regime should apply and, for the reasons noted below, the Sentencing Procedure Act is not engaged. The problems with applying the reasoning in Whiley under the current legislation are fourfold.

50. First, although the Court referred to the powers conferred by Pt 55, r 13 of the Supreme Court Rules, there was no consideration of the specific language of that rule, referring to “committal” and “sequestration”, as opposed to “sentence”. The reasoning appears to start with the assumption that a punishment by way of committal for contempt involves “sentencing” and therefore the provisions of the Sentencing Act were engaged. However, it is not possible to ignore the different language of the common law, adopted in the Supreme Court Rules. [40] Further, neither the Sentencing Act, nor the Criminal Procedure Act 1986 as originally enacted, had a definition of “court” which appears to be limited to courts exercising criminal jurisdiction.

    40.    Cf Kirby P in Young at 281C: “there is no relevant distinction between committal to prison and a sentence of imprisonment.”

51. Secondly, not all contempts involve indictable offences which can be dealt with summarily, nor does that description adequately identify the nature of the jurisdiction. In John Fairfax & Sons Pty Ltd v McRae [41] the High Court said:

“But, although the jurisdiction is ‘protective’ in a sense, it has been said again and again that the court punishes contempts not in order to protect courts or judges or juries but in order to safeguard and uphold the rights of suitors and ensure that justice be done. So regarded, the power to punish for contempt of inferior courts and the power to issue mandamus or certioriari to inferior courts are seen as in truth but different aspects of the same function—the traditional general supervisory function of the King's Bench, the function of seeing that justice was administered and not impeded in lower tribunals.

… A party disobedient to the order or process of a court is often said to be ‘in contempt’. In these cases each court has its own appropriate means of enforcement, and such ‘contempts’ are not criminal. Criminal contempt consists in contumelious behaviour to a court, and is divided into two broad classes – contempt in the face of the court and contempt out of court. All criminal contempts are indictable offences at common law. Contempts in the face of the court have, however, from time immemorial been punishable summarily (ie without conviction by a jury) by the court before which the contempt is committed.”

41. (1955) 93 CLR 351 at 363-364; [1955] HCA 12.

52. In 1990, the House of Lords declared that the procedure by way of indictment was obsolete; [42] to characterise all contempts as criminal would be erroneous, even if the distinction is now considered to be illusory.

    42. Re Lonrho plc [1990] 2 AC 154 at 177.

53. Thirdly, it was said that there were “strong policy reasons” for applying the Sentencing Act to sentencing of a person for contempt. Those involved “consistency in sentencing”, the opportunity for the contemnor to have parole and the ability to structure a sentence flexibly. This argument is again circular in that it assumes the exercise being undertaken is one of “sentencing” and that contempt is a criminal offence of the same kind as other offences relating to past conduct. In any event, such questions of policy are for the legislature and would, no doubt, be reflected in the language of the statute if they were adopted by the Parliament. Nor does this reasoning address scandalising contempt, or continuing defiance, which cannot be accommodated within the scheme of criminal sentencing legislation.

54. Fourthly, the Court distinguished English authority which adopted a contrary approach, including Morris v Crown Office, on the ground that the UK criminal legislation “imposed fetters upon the power to imprison which, if applicable to cases of contempt, struck at the power of the courts to protect the integrity of the administration of justice.” The Court stated that no similar considerations applied in respect of the Sentencing Act. [43] Why that was so was not explained; it is not currently true. Indeed, in 1996 Hunt CJ at CL noted that “… Pt 55 r 14 (permitting the court to order a contemnor’s discharge before the expiration of the term imposed) appears strongly to suggest that punishment for contempt is sui generis in nature, for such a power is inconsistent with the whole scheme of the Sentencing Act.”[44] That is illustrated by the need to find another source of power to interrupt a committal for a fixed term, a power not available under the sentencing legislation.

    43.    Whiley at 321B-D.

    44. Wood v Galea (1996) 84 A Crim R 274 at 276-277.

55. In a case where the trial judge had purported to impose a sentence under the Sentencing Procedure Act, Menzies v Paccar Financial Pty Ltd,[45] Meagher JA said:

    45. (2016) 93 NSWLR 88; [2016] NSWCA 280.

“[16] It was not submitted that the power under SCR Pt 55 r 14 is not available in circumstances where the contemnor has been committed to a correctional centre for a fixed term. As Kirby P observed in Young v Registrar, [46] … the ‘reference in the rule to “for a term” is clearly designed to permit discharge short of the service of a specified term’. It confers that power in circumstances where the Court fixing punishment for a criminal contempt by a term of imprisonment might otherwise be functus officio: see Attorney-General v James. [47]

[17]   Of that power Kirby P also observed in Young v Registrar at 281:

‘The rule … clearly contemplates discharge during the terms of imprisonment fixed by the Court which committed him to prison. It contemplates that the Court to which the discharge application is made will, in a sense re-visit and review the facts which have already been passed upon judicially by the Courts imposing the sentence of imprisonment. To that extent, it is not to the point to complain about the offence to principle of providing an effective “appeal” or “review” in a court of co-equal jurisdiction. Some form of “review” is contemplated by the Court to which the discharge application is made as contemplated by the Supreme Court Rules 1970.’

[18]   And at 282:

‘… the procedure for discharge is not available to demonstrate that the original sentence was too severe when imposed. That is the business of an appeal, if such exists. Discharge is to permit the convicted contemnor to ask for clemency, demonstrate contrition, and establish that the punishment suffered already is enough to vindicate the authority of the court, and to punish the contemnor for the contempt found.’”

46.    See fn 35 above, at 282-283.

47. [1962] 2 QB 637 at 641.

Application of general law powers

56. It is not in doubt that the contempt proceedings, commenced by summons with a statement of charge, complied with Pt 55, rr 6 and 7 of the Supreme Court Rules. Count 3 of the charge alleged a contravention of the order made by Beech-Jones J pursuant to the Court Non-publication Orders Act. Contravention of an order under that Act is an offence, pursuant to s 16(1). It carries a maximum penalty of imprisonment for 12 months or a fine, or both. It expressly states that “conduct that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence”: s 16(2). (The reverse is also provided for: s 16(3).) The distinction between proceedings for an offence and proceedings for contempt is clearly identified, although each may result in punishment. In the conventional language of the common law, Pt 55 provides that “where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both”: r 13(1). Where the contemnor is a corporation, the court may punish “by sequestration or fine or both.”

57. The primary judge purported to impose a non-parole period and a balance of term. The structure of the sentence thus assumed the application of s 44 of the Sentencing Procedure Act. It also assumed that the Parole Authority had power to consider whether the applicant should be released on parole and, if so satisfied, release him on parole, pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW). Neither of those statutes applied in their terms; they each involve sentences imposed in the criminal jurisdiction, as does the Crimes (Appeal and Review) Act 2001 (NSW). In committing a person to prison for contempt of court, the court is operating in its civil jurisdiction. That is not to say that many incidents of the general law protections of the person charged with a criminal offence will not operate; rather it is to identify the jurisdiction of the Court as being civil rather than criminal. [48]

    48.    Witham v Holloway at 549-550 (McHugh J).

58. The reasoning in Whiley is not, in my opinion, persuasive as to the operation of the Sentencing Procedure Act with respect to a finding of contempt in the civil jurisdiction of the Supreme Court. For these reasons, the primary judge was wrong to “convict” the respondent and was wrong to sentence in accordance with the Sentencing Procedure Act. Having made declarations in accordance with the orders sought in the summons, to the effect that the respondent was guilty of contempt of court in relation to each of the three counts, and being satisfied that a custodial penalty was appropriate, it was sufficient to order that the respondent be committed to prison.

(c)   nature of appeal

59. This Court’s appellate powers are conferred by s 75A of the Supreme Court Act. The appeal being one by way of rehearing, the Court must determine the matter on the basis of the law and the facts as they exist at the date of the rehearing. To the extent that the challenge is purely to the length of the imprisonment, the standard of review is the constrained standard adopted in House v The King. [49]

    49. (1936) 55 CLR 499, 504-505; [1936] HCA 40; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at [37]-[38] (Gageler J).

60. The Criminal Appeal Act 1912 (NSW) confers jurisdiction on the Court of Criminal Appeal established under that Act; [50] accordingly, the right of appeal against sentence under s 5(1)(c), and powers conferred by s 6(3), did not apply in this case. Cases dealing with the application of s 6(3), such as Kentwell v The Queen,[51] also have no necessary application. This Court is exercising the civil jurisdiction of the Supreme Court, as was the primary judge.

    50. Criminal Appeal Act, s 2(1), Court; s 3(1).

    51. (2014) 252 CLR 601; [2014] HCA 37.

Term of committal

61. While count 1 (dealing with the respondent’s conduct in the course of the hearing before the registrar) was a form of scandalising contempt, the breach of civil orders was not. The overall conduct identified in the declarations was properly dealt with by a committal for a single fixed term of imprisonment.

62. In quashing the sentence imposed in the Common Law Division and committing the applicant to prison for a specified period, I would not rely upon the quashing of his conviction on count 2; accordingly my reasons differ from those of Macfarlan JA in this respect.

63. As Wilson J correctly noted on the sentencing, the applicant had twice previously been found guilty of contempt of court. He had been fined and then sentenced to four months imprisonment. Repetitive disobedience of orders of the court warranted a further period of imprisonment. The fact of repetition provided a sound basis for increasing the severity of earlier penalties. On the other hand, the nature of the particular contempt was equally important in determining the severity of the punishment.

64. In the previous cases, the contempts had affected third parties, including other litigants in the court whose rights and entitlements were required to be respected. In those cases, the Court was required to exercise its authority to protect the rights of others. By contrast, the present case involves scandalising the Court itself. While the Court may be expected to take a firm stand against such conduct and to impose condign punishment when it occurs, as Wilson J noted in her judgment vacating the suppression orders, the conduct was more in the nature of irrational abuse which would readily be seen by the broader public to be irrational and to reflect more seriously upon the applicant than the Court.

65. It is important in such cases to recall that “[t]he jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals.”[52] Further, as Salmon LJ stated in Morris: [53]

“The archaic description of these proceedings as ‘contempt of court’ is in my view unfortunate and misleading. It suggests that they are designed to buttress the dignity of the judges and to protect them from insult. Nothing could be further from the truth. No such protection is needed. The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented….”

52. The King v Dunbabin (1935) 53 CLR 434 at 442 (Rich J); [1935] HCA 34.

53.    Morris at 129.

66. Taking these factors into account, committal to prison for four months was a sufficient response to the three charges of contempt which involved closely related conduct.

Orders

67. In addition to the orders made on 16 November 2018, I would proposed the following orders:

1. To the extent that the appellant requires an extension of time within which to challenge the orders of Beech-Jones J made on 3 February 2017, refuse to extend time.

2. Dismiss the appeal in respect of the appellant’s convictions for contempt of court.

3. In place of order (3) made by this Court on 16 November 2018, commit Shane Dowling to prison for 4 months to date from 22 August 2018, expiring on 21 December 2018.

68. MACFARLAN JA: Mr Shane Dowling appeals against his conviction and sentence in the Common Law Division of the Court on three charges of contempt of court. He also appeals against the making of the Court orders which he was found to have breached on the second and third contempt charges (“Counts 2 and 3”). As well, Mr Dowling challenges two decisions of the trial judge, who was also the sentencing judge, not to disqualify herself from hearing the contempt proceedings. The sentence imposed on Mr Dowling was an aggregate term of 18 months’ imprisonment, with a non-parole period of 13 months being fixed. Indicative sentences of nine months’ imprisonment were specified in respect of each count.

69. Mr Dowling was self-represented on the appeal but the Court had the considerable assistance of Mr Izzo SC and Mr Bhasin, of counsel, who acted as amici curiae. At the conclusion of the hearing of the appeal on 16 November 2018, this Court made the following orders:

1. Allow the appeal against sentence.

2. Set aside the aggregate sentence imposed in the Common Law Division by Order (2) made on 22 August 2018.

3. In place of that sentence, sentence Shane Dowling to a fixed term of imprisonment for four months to date from 22 August 2018, expiring on 21 December 2018.

4. Reserve judgment, including with respect to other orders, and reserve the reasons of the Court.

70. For the reasons that appear below, I propose that the Court make the further orders set out at [138] below.

THE CIRCUMSTANCES LEADING TO MR DOWLING’S CONVICTION AND SENTENCE

71. On 3 February 2017 Mr Dowling appeared for himself at a call-over for defamation matters before a registrar of the Court. At least 30 to 40 people were present in court when Mr Dowling made statements which were recorded in the transcript as follows:

“KEEGAN: … Keegan for the Plaintiff …

REGISTRAR: Yes.

KEEGAN: As I understood it Registrar the matter was just going to be dealt with by some directions which I thought were agreed. I’m content if we’re going to the Duty Judge, I’m not sure for what purpose.

DEFENDANT [MR DOWLING]: Well to get away from you Registrar.

REGISTRAR: What’s the reason for the matter being transferred Mr Dowling?

DEFENDANT: To get away – Chris, I’ve written on my website that you are [a] known bribe [taker] suspected paedophile [sic]. Now that means you rape children. That means you rape children.

REGISTRAR: Mr Dowling what is the point of what’s--

DEFENDANT: Do you think you should be hearing this matter or having anything to do with it. I asked you last time to stand down from hearing this matter and refer it to someone else. I don’t back away from my allegations.

REGISTRAR: Right in light of what’s--

DEFENDANT: As I said on my website I’m making a formal complaint to the relevant authorities in relation to you and other judges here, number of other judges including [named judges]. [A named judge] gave a paedophile priest three months gaol a few months ago--

REGISTRAR: Mr Dowling I heard your application. I’m not here to hear your speeches.

DEFENDANT: Who gives the paedophile priest three months gaol, only another paedophile, that’s [a named judge] for you.

REGISTRAR: Mr Keegan I think I’ll refer it to the [duty] judge because I don’t think we’re going to get very far this morning.”

72. Later that day, Beech-Jones J made the following orders, ex parte on the application of the Prothonotary:

“(1) Under s 10 of the Court Suppression and Non Publication Orders Act 2010 the contents of Exhibit 1 be prohibited from disclosure other than from the parties, except without [sic] leave of the Court, until further order.

(2)   The Court further orders that:

Pending further order, pursuant to the Court's inherent power, publication of the following is suppressed (save for the proper purposes of the proceedings and any related contempt proceedings):

(a) the content of allegations made by Shane Dowling (‘the defendant’) before Registrar Bradford of the Supreme Court in open court on 3 February 2017 (‘the allegations’);

(b) that Mr Bradford and judges of the Supreme Court of New South Wales were the subject of the allegations; and

(c) that the allegations were made.”

73. Exhibit 1, referred to in Order (1), was the transcript of the proceedings that occurred earlier in the day before the registrar.

74. His Honour gave the following reasons for making the orders:

“This is an application for a suppression order in respect of utterances made by the defendant, Shane Dowling, to a registrar of this court in open court this morning, 3 February 2017. The transcript of that occasion reveals that Mr Dowling made assertions about the conduct of a number of judicial officers that was scandalous, vexatious and utterly groundless. The application for the suppression order is not made under the Court Suppression and Non-publication Orders Act [2010]. This is so because the material sought to be suppressed does not answer the descriptions of the material referred to in either subss 7(a) or (b). Nevertheless, the power of the Court to grant the relief sought flows from its inherent power, particularly as a Superior Court to protect its own processes. In particular, the nature of this allegation is not to protect the feelings or even the reputation of the individual judicial officers; instead the necessity to make such an order flows from the combination of a number of matters.

First, the making of the order serves to protect the integrity of the court as an institution as a whole where its own processes are being abused. Its own processes were being abused in that Mr Dowling was using the privilege that is afforded from defamation and other actions in respect of statements made in open court to [make], as I have said and repeat, scandalous and groundless accusations.

Secondly, because – and without deciding – it appears to be at least reasonably arguable that the making of the utterances, at least in front of the [registrar], could constitute a contempt [in] the face of the court and there is no doubt about the court’s powers to not only make orders to prevent a contempt but to ameliorate the effect of a contempt that has occurred.

In those circumstances, I think it is appropriate to make the orders sought in para 1 of the orders sought in the documents entitled short minutes of order.”

75. At 6.17pm on 3 February 2017, the Prothonotary’s solicitors sent an email to Mr Dowling attaching a sealed copy of Beech-Jones J’s orders and a Notice of Motion seeking further orders. The copy of the orders was not served personally on Mr Dowling and did not contain the required notification warning him that he was liable to imprisonment if he breached the orders, pursuant to r 40.7(1) and (3) of the Uniform Civil Procedure Rules 2005 (NSW) (the “UCPR”).

76. On 8 February 2017, however, Beech-Jones J vacated Order (1), which he had made on 3 February 2017 and, in lieu, made a suppression order under s 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the “Suppression Orders Act”) relating to Exhibit 1 tendered on 3 February 2017. A further order recorded that the substituted order was “made on the grounds of s 8(1)(a)” of the Suppression Orders Act.

77. Particulars contained in the Prothonotary’s Summons filed on 27 March 2017 alleged that:

“3.   In asking [the registrar of the Court] to refer the matter, the defendant wilfully made the following allegations (the Allegations):

a.   [The registrar] was a known bribe-taker …

b.   [The registrar]d was a suspected paedophile and child rapist …

c.   [A named judge] was a paedophile …

d.   [The named judge] sentenced a paedophile priest to only three months’ imprisonment because his Honour was a paedophile.”

and that thereafter:

“15.   On 5 February 2017, the defendant wilfully published an article on the Website [maintained by Mr Dowling] entitled ‘[the named judge] has journalist charged with contempt for accusing him of corruption’ (Article).

16.   On and from 5 February 2017, the defendant wilfully disclosed the contents of Exhibit 1, including the Allegations, to persons who were not parties to the proceedings, by means of an audio visual recording of the mention before [the registrar of the Court] in the Proceedings on 3 February 2017 (Recording) which was hyperlinked to the Article on the Website.

17.   The defendant also uploaded a copy of the Recording to the YouTube website … which had been edited to form one video with an audio visual recording of an earlier mention before [the Registrar] .

18.   In the Article, the defendant also:

a.   repeated some of the content of what he said at the mention on 3 February 2017, including the defendant’s allegation that [the named judge] was a paedophile and, for that reason, had sentenced a paedophile priest to only 3 months’ imprisonment … ; and

b.   published the orders of Beech-Jones J made on 3 February 2017.”

78. In her Summons, the Prothonotary charged that Mr Dowling was guilty of contempt of court in that:

“(a)   on 3 February 2017, in open court before Registrar Bradford, the defendant made allegations (which are detailed in the Particulars Document) about Registrar Bradford and a judge of the Supreme Court of New South Wales;

(b)   on and from 5 February 2017, in contravention or order 1 made by his Honour Justice Beech-Jones on 3 February 2017, the defendant wilfully disclosed the contents of Exhibit 1, as marked by his Honour on 3 February 2017, to persons other than parties without leave of the court;

(c)   on and from 5 February 2017, in contravention of order 2 made by his Honour Justice Beech-Jones on 3 February 2017, the defendant wilfully published: (i) the content of the allegations that the defendant made before Registrar Bradford in open court on 3 February 2017 (which are detailed in the Particulars Document); (ii) that [a registrar] and a judge of the Supreme Court of New South Wales were the subject of the allegations; and (iii) the fact that the allegations were made.”

These charges are referred to in this judgment as Counts 1, 2 and 3 respectively.

THE CONVICTION JUDGMENT

79. By judgment of 3 August 2017, Wilson J of the Common Law Division found Mr Dowling guilty on each of the three charges of contempt ([2017] NSWSC 664).

80. Her Honour commenced her judgment by identifying the statements that Mr Dowling had made on 3 February 2017, as recorded in the transcript for that day. She continued at [6]:

“The defendant does not dispute saying these words. The recording captures the tone and manner in which the words were spoken, and that can best be described as loud and aggressive.”

81. Having referred to Mr Dowling’s publication on his website of the article and the audio visual recording of his appearance before the registrar (see [77] above), her Honour continued:

“24   It was common ground at the hearing before me that the defendant had written the relevant article, had published the material knowing that to do so would breach orders made by the Court, and continued to maintain the material on his website (at least) to the date of the hearing.

…

32   There was no issue at the hearing before me that the defendant did the acts complained of by the Prothonotary. That is, the defendant

(1)   made allegations of corruption and paedophilia against a Registrar and a named judicial officer of the Supreme Court in the face of the court on 3 February 2017;

(2)   published an article and uploaded an audio-visual recording on 5 February 2017 which disclosed the contents of Ex. 1 in the proceedings that were before Beech-Jones J on the afternoon of 3 February 2017, contrary to a court non-publication order; and

(3)   published that material containing the detail of the allegations and the names of those against whom they were made on 3 February 2017 in breach of the second of the non-publication orders made by Beech-Jones J.

33   Although the defendant raised a semantic argument to the effect that he had not directly alleged that the second named judicial officer of the Supreme Court was a paedophile, his argument was about the meaning that might be taken from the words, rather than to deny that he spoke them.”

82. Her Honour then identified the question before the Court at [34]:

“The question for the Court is not whether the acts were carried out by the defendant as alleged, since he - somewhat proudly - acknowledges his conduct, but rather whether the acts amount to contempt and whether there is a defence available to the defendant of the nature he claims.”

83. Her Honour rejected at [51] Mr Dowling’s contention that his “implied constitutional right of freedom of political speech” constituted a defence to the charges of contempt of court made against him. Her Honour held that the implied freedom was “limited to what is necessary for the effective operation of the system of representative and responsible government provided for by the Constitution” and that it did not embrace the “operation of the courts and the functions of judges” (at [54] and [56]).

84. For the following reasons, her Honour concluded at [62] that the conduct charged as Count (1) constituted a contempt of Court:

“An allegation made to any person that he or she took bribes, or was a paedophile is obviously grossly insulting (and no doubt hurtful to the individual). Such gratuitous comments made to a judicial officer who was presiding over proceedings in a court do a more significant, public harm. The words said by Mr Dowling and the hostile and aggressive manner in which they were said necessarily interrupted the course of the proceedings before the Registrar, and diverted the court’s attention from the business before it. Baseless insults of this grave nature can also call into question the integrity of the court or of individual judicial officers. The defendant’s conduct thereby interfered with the course of justice and constituted an unwarranted obstruction to the administration of justice in the face of the Court (Lewis v Ogden (1984) 153 CLR 682 at 689; [1984] HCA 26).”

85. As to Counts 2 and 3, her Honour rejected Mr Dowling’s contention that the orders that he breached were invalid (referring to State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32]). Her Honour then found that both Counts 2 and 3 were established, holding at [67]:

“Wilful disobedience to an order of a court both challenges and diminishes the authority of the court. In wilfully defying the Court’s orders the defendant interfered with the administration of justice and frustrated the work of the Court.”

86. Her Honour then made declarations that Mr Dowling had committed the three contempts of court charged.

THE SENTENCING JUDGMENT

87. By a judgment of 22 August 2018 ([2018] NSWSC 1301), Wilson J convicted Mr Dowling of the three counts of contempt of court and, after consideration of the matters referred to below, sentenced him to an aggregate term of 18 months’ imprisonment (see [68] above).

Service of sealed copy of orders

88. Mr Dowling contended on the sentencing hearing that it was not open to the primary judge to sentence him to imprisonment for the Counts 2 and 3 contempts as he was not, as required by r 40.7(1) and (3) of the UCPR, served with a sealed copy of the orders bearing a notice warning him of his liability to imprisonment if he breached the orders. Rule 40.7 is relevantly in the following terms:

“40.7 Service of copy of judgment before committal or sequestration

(1)   A judgment is not enforceable by committal or sequestration unless:

(a)   a sealed copy of the judgment is served personally on the person bound by the judgment, and

…

…

(3)   The sealed copy of the judgment must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property:

(a)   where the judgment requires the person to do an act within a specified time, if the person fails to do the act within that time, or

…

(4)   If a person liable to committal or sequestration by way of enforcement of a judgment has notice of the judgment:

(a)   by being present when the judgment is directed to be entered, or

(b)   by being notified of the terms of the judgment, whether by telephone, telegram or otherwise,

the judgment may be enforced against that person by committal or sequestration without service having been effected in accordance with this rule.

(5)   The court may dispense with service under this rule.

…”

89. In her sentencing judgment, the primary judge found that the rule did not apply because the orders were not directed to “any specific person who was to be ‘bound by the judgment’” as contemplated by r 40.7(1)(a). Her Honour found at [14] that instead the orders were of a “general nature”, applicable to the world at large.

90. Her Honour held that in any event the dispensing power conferred by r 40.7(5) should be exercised for two reasons. First, her Honour found at [16] that Mr Dowling “would have been well aware of the possibility of a custodial sentence being imposed” by reason of the previous service on him in other proceedings of a sealed copy of orders containing the appropriate warning. Secondly, her Honour said that there was no reason to conclude that if the appropriate notice had been included in the order Mr Dowling would have refrained from breaching it. Her Honour found that Mr Dowling’s breaches of the orders were wilful and rejected his assertion that he believed “that the orders were nothing more than an attempt to intimidate him” (at [18]-[19]).

The objective gravity of the contempts

91. The primary judge, in her sentencing judgment, described the Count 1 conduct at [22] as a “disgraceful and scurrilous attack upon the Court”, which must have been “highly disturbing to all of those present”. Her Honour described the Counts 2 and 3 conduct at [26] as “deliberate and wilful defiance of the orders of the Court, acts which undermine and demean the authority and integrity of the Court”, and found the conduct charged in all three counts to have been contumacious.

92. Her Honour further found at [34] that Mr Dowling was aware of the possible consequences of his conduct but her Honour accepted that he honestly believed that he was “a person fighting against a legal system he believe[d] to be populated by judicial officers who are or may be corrupt, and who are or may be ‘paedophiles’”. As Mr Dowling was unable to produce any evidence to substantiate his allegations, her Honour concluded at [36] that his belief “in the righteousness of his cause is demonstrative of not just a profound lack of insight, but of a dangerous delusion”.

93. Her Honour further concluded that Mr Dowling benefited from his contempts as they provided him with a platform to solicit donations, and found that he did not express contrition for what he had done but, rather, compounded his contempt “by maintaining the publication of the offending material on his website” (at [37]-[44]).

Mr Dowling’s subjective case

94. Her Honour noted that in July 2014 Mr Dowling had been fined $2,000 for contempt and that in August 2017 he had been imprisoned for four months for a separate (second) contempt (at [46] and [49]-[50]).

95. Her Honour then described the limited information that was available about Mr Dowling’s subjective circumstances and noted that, although he had expressed an intention to comply with court orders in future, that assertion was at odds with much of his evidence and conduct (at [73]-[74]).

Sentence

96. Her Honour described Mr Dowling’s prospects of rehabilitation as “very limited” (at [77]), and considered that only a limited concurrency of the sentences was appropriate. She then imposed the sentence referred to at [68] above.

DETERMINATION OF THE APPEALS

Appeal against convictions

Factual dispute as to Count 1

97. The allegations Mr Dowling made in Court on 3 February 2017 that led to his conviction on Count 1 were that the registrar was “a known bribe[-taker]”, and a “suspected paedophile and child rapist”, and that the named judge was a paedophile.

98. Mr Dowling contended on appeal that he did not make these allegations in Court but instead had just referred to them as having been made on his website. I reject this submission as it is clear from the transcript of the hearing (see [71] above) that in the Registrar’s Court Mr Dowling asserted, or at least reasserted, the truth of those allegations. For the reasons given by the trial judge (see [84]-[85] above), the making of these allegations in Court constituted a serious contempt of it.

Construction of order giving rise to Count 2

99. Count 2, as particularised, alleged that Mr Dowling breached Order (1) that was made on 3 February 2017 by publishing on his website an article that repeated some of the allegations that he had made in Court on 3 February 2017, uploading to YouTube an audio visual recording of the proceedings on that date and providing a hyperlink to the recording on his website.

100. Order (1) prohibited disclosure of “the contents of Exhibit 1”, which was the transcript of the hearing before the Registrar on 3 February 2017.

101. The Prothonotary argued on appeal that Order (1) clearly conveyed to Mr Dowling that he was prohibited from communicating to others the fact that he had made the subject allegations on 3 February 2017 and was prohibited from making the allegations to anyone again.

102. I do not accept that this is clearly the correct construction of the Order. At least arguably, it purported to restrain Mr Dowling only from disclosing to anyone any part of the transcript which was Exhibit 1. What Mr Dowling did was different. First, he disseminated a record (the audio visual recording) of the proceedings. This had been made entirely independently of the transcript. Secondly, he repeated the subject allegations on his website but did not do so by reference to the transcript.

103. For a breach of a court order to be punishable as a contempt, the order must be unambiguous in its terms. The authorities to this effect were conveniently summarised by Beazley JA (as her Honour then was) in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [52] as follows:

“A person cannot be committed for contempt of court for breach of an order or undertaking, the terms of which are ambiguous: Australian Consolidated Press Ltd v Morgan [1965] HCA 21; 112 CLR 483. If on its plain reading, objectively construed, the undertaking is of uncertain or ambiguous meaning, there will be no contempt for a failure to obey it: Spokes v Banbury Board of Health at 48-49. Nor can a person be committed for contempt on the ground that upon one of two possible constructions of an undertaking, the person had breached the undertaking: see Australian Consolidated Press Ltd v Morgan per Owen J at 515-516, referring to the statement of Jenkins J in Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387.”

104. Order (1) did not meet this standard. The better view is that it did not prohibit the conduct in which Mr Dowling engaged, but it was at least ambiguous in its terms. Mr Dowling’s conviction on Count 2 accordingly cannot be sustained.

Implied freedom of political communication

105. Mr Dowling contended on appeal that all of his convictions should be quashed because his conduct as alleged in all three counts constituted an exercise of his implied constitutional right of freedom of political communication.

106. As the High Court stated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561; [1997] HCA 25, “the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution” (citation omitted). Both statute law and the common law must be consistent with the constitutional protection (ibid at 566).

107. As the plurality, comprising six justices of the High Court, stated in Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [92], “[c]ommunications concerning the exercise of judicial power stand apart” from the implied freedom of political communication. Their Honours then cited with approval the following observations of McHugh J in APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44 at [65]-[66]:

“There is a difference between a communication concerning legislative and executive acts or omissions concerned with the administration of justice and communications concerning that subject that do not involve, expressly or inferentially, acts or omissions of the legislature or the Executive Government. Discussion of the appointment or removal of judges, the prosecution of offences, the withdrawal of charges, the provision of legal aid and the funding of courts, for example, are communications that attract the Lange freedom. That is because they concern, expressly or inferentially, acts or omissions of the legislature or the Executive Government. They do not lose the freedom recognised in Lange because they also deal with the administration of justice in federal jurisdiction. However, communications concerning the results of cases or the reasoning or conduct of the judges who decide them are not ordinarily within the Lange freedom. In some exceptional cases, they may be. But when they are, it will be because in some way such communications also concern the acts or omissions of the legislature or the Executive Government.

…

The Lange freedom arises from the necessity to promote and protect representative and responsible government. Because it arises by necessity, the freedom is limited to ‘the extent of the need’. Courts and judges and the exercise of judicial power are not themselves subjects that are involved in representative or responsible government in the constitutional sense.”

108. Consistently with these observations, Winneke ACJ had earlier said the following in The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at [9]-[10]:

“It is true that, when discharging their functions, judicial officers are performing a public role; one which is to be performed in the ‘public gaze’ and, thus, open to public scrutiny and comment. … However, that is not to say that such comment assumes the status of a communication concerning political or government matters which are relevant to the system of representative and responsible government so as to attract the freedom which the Constitution protects. …

That does not mean that there can never be a discussion about a judicial officer which will, or might, be relevant to the system of representative and responsible government. … This would particularly be so where the discussion impacts directly or indirectly on the executive government itself; whether in the exercise of its powers to appoint the officer, or in exercising or failing to exercise its powers to initiate the officer’s removal. … To express a view, no matter how critical, about the manner in which a judicial officer has discharged his or her functions – admittedly independently of government – in a particular case seems to me to fall short of discussion about government and political matters facilitating the system of representative and responsible government.”

109. There is nothing in the present case in my view that takes it outside the ordinary type of case to which Winneke ACJ referred. The subject allegations asserted particular matters about particular judicial officers. They did not concern "political or government matters which [were] relevant to the system of representative and responsible government so as to attract the freedom which the Constitution protects" (Herald & Weekly Times at [9]). Accordingly, Mr Dowling's statements were not in my view protected by the implied constitutional freedom of political communication.

110. If this conclusion is wrong, the question becomes whether the laws pursuant to which the orders allegedly breached by Mr Dowling were made (that is, the Suppression Orders Act and the inherent powers of the Court) were nevertheless valid and effective to restrict the freedom to which he was otherwise entitled. That is, the question arises as to whether the objects of these laws are both “compatible with the maintenance of the constitutionally prescribed system of representative and responsible government” and “reasonably appropriate and adapted to achieving [those] legitimate object[s] or end[s]” (Lange at 562 and 567; see also McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 at [2]; Brown v State of Tasmania (2017) 261 CLR 328; [2017] HCA 43 at [104]).

111. In Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104 at 187; [1994] HCA 46, Deane J stated that:

“[t]he justification of proceedings for contempt of court or parliament lies not in the protection of the reputation of the individual judge or parliamentarian but in the need to ensure that parliaments and courts are able effectively to discharge the functions, duties and powers entrusted to them by the people.”

112. This is a legitimate object, compatible “with the maintenance of the constitutionally prescribed system of representative and responsible government” (Lange at 562). The law of contempt seeks to balance the public interest in freedom of expression with the public interest in the administration of justice (John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198; (2000) 181 ALR 694 at [110]-[112]). There is nothing to suggest that the balance struck by that law is an inappropriate one and that the law of contempt is not therefore “reasonably appropriate and adapted to achieving [its] legitimate object or end” (Lange at 562).

113. Similar considerations apply to the Suppression Orders Act. The following grounds stated in s 8(1), upon which a court may make a suppression order or non-publication order, are legitimate objects in the sense referred to in Lange:

“8 Grounds for making an order

(1)   A court may make a suppression order or non-publication order on one or more of the following grounds:

(a)   the order is necessary to prevent prejudice to the proper administration of justice,

(b)   the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c)   the order is necessary to protect the safety of any person,

(d)   the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e)   it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

… ”

114. The Act as a whole is “reasonably appropriate and adapted” to achieving these legitimate objects as “[i]n deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice” (s 6). The Act thus involves a balancing of legitimate interests and there is no reason to think that an inappropriate balance has been struck.

115. Mr Dowling’s challenge to his convictions based on the implied constitutional freedom of political communication should accordingly be rejected.

116. I add that, even if Mr Dowling had established that the Suppression Orders Act was invalid, that would not have had the consequence that the court orders that he was alleged to have breached would have been invalid (Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 at [11]; Rumble v LiverpoolPlains Shire Council (2015) 90 NSWLR 506; [2015] NSWCA 125 at [61], [114]-[118]). As stated by six justices of the High Court in State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32], concerning an error of the Supreme Court of New South Wales:

“It is now firmly established by the decisions of this Court that the orders of a federal court which is established as a superior court of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction)” (citations omitted).

117. This latter point concerning the validity of orders is discussed below, commencing at [127].

Procedural fairness and bias

118. In his written submissions on appeal, Mr Dowling complained that the trial judge refused to let him cross-examine Mr Richard Keegan, a solicitor who was present in the Registrar’s Court on 3 February 2017. Mr Keegan’s affidavit was however uncontroversial and Mr Dowling did not identify on appeal any legitimate reason why he should have been permitted to cross-examine Mr Keegan.

119. Mr Dowling’s complaint should therefore be rejected, as should his complaint that his cross-examination of Mr Keegan at the sentencing hearing was unreasonably curtailed. At that hearing, the primary judge rejected questions that Mr Dowling contended could have established that he had “accused numerous other judges of taking bribes”. These questions were irrelevant and again I conclude that there was no error in the exercise of her Honour’s discretion.

120. Mr Dowling’s assertion that Wilson J should have disqualified herself and that the proceedings against him should have been heard by an interstate judge should also be rejected. Mr Dowling relied upon the fact that a complaint to the police was made in relation to allegations that he had made on other occasions about a number of judges. However, Wilson J was not one of those judges and there is no basis upon which “a fair-minded lay observer might reasonably” have apprehended that her Honour might not have brought “an impartial mind to the resolution” of the contempt proceedings (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]).

121. Mr Dowling’s assertions of “judicial bullying” and “prosecutorial misconduct” should also be rejected as having no arguable basis. Similarly, his request for an order that the police return his computer should be rejected as not relevant to the present appeal proceedings.

Conclusion on conviction appeal

122. For the reasons given above, his conviction on Count 2 should be quashed as the order which he was alleged to have breached (Order (1) made on 3 February 2017) was ambiguous. His convictions on Counts 1 and 3 should not be quashed as his grounds for challenging those convictions have been rejected.

Sentence Appeal

Failure to comply with UCPR r 40.7

123. Mr Dowling contended that the primary judge erred in sentencing him to a term of imprisonment in respect of Counts 2 and 3 because the Prothonotary did not comply with UCPR r 40.7, which concerns service of a sealed copy of the orders which he was alleged to have breached (the terms of r 40.7 are set out at [88] above). It is clear that a sealed copy of the orders was not served personally, but rather by way of email, and that it did not contain a notification of his liability to imprisonment for their breach. By the terms of what he posted on his website on 5 February 2017, Mr Dowling did however acknowledge receipt of an email copy of the orders.

124. I cannot, with respect, agree with the primary judge that the rule was inapplicable because the orders were not directed to “any specific person who was to be ‘bound by the judgment’” (see [89] above). In my view, Mr Dowling was a “person bound by the judgment” in the sense referred to in r 40.7(1)(a), notwithstanding that the order was directed to the world at large. Whilst the appropriateness of the order being so directed need not be considered, it is sufficient to say that, unless service was dispensed with, the Prothonotary needed to serve the sealed copy of the orders on any person whom she wished to hold liable for their breach. Mr Dowling was such a person.

125. The primary judge said, in the alternative, that she would have exercised the dispensing power in r 40.7(5). No good reason has been shown for interfering with her Honour’s putative exercise of that discretion. In particular, her conclusion that Mr Dowling “would have been well aware of the possibility of a custodial sentence being imposed” by reason of the previous service on him in other proceedings of a sealed copy of orders containing the appropriate warning (see [90] above) was a powerful consideration in favour of the exercise of that discretion (cf NCR Australia v Credit Connection [2005] NSWSC 1118 at [52]). Moreover, contrary to the amici curiae submission, her Honour’s finding that there was no reason to conclude that Mr Dowling would have refrained from breaching the orders (see [90] above), if the appropriate notice had been included with the sealed copy of the order, was not irrelevant to the exercise of her Honour’s discretion to dispense with service.

126. As a further alternative, it would have been open to her Honour to impose a sentence of imprisonment, if she had exercised the discretion conferred by r 40.7(4), because, as contemplated by that subrule, Mr Dowling had been notified of the terms of the orders “by telephone, telegram or otherwise”.

Validity of the orders made on 3 February 2017

127. Orders of a superior court are valid unless and until they are set aside (see the authorities, referred to above at [116]). Accordingly, even if the orders made on 3 February 2017 should not have been made, that would not provide a ground for quashing Mr Dowling’s convictions for breaching them. Nevertheless, the fact that orders should not have been made may be relevant to the sentencing of the offender, particularly if there was evidence that the contemnor had a “bona fide and reasonable belief that the orders did not bind [him] for some reason” (Rumble at [118]).

128. As I have concluded above, Mr Dowling should not have been found guilty of contempt for failing to comply with Order (1) as it was ambiguous (see [104] above). Moreover, the appeal against the making of that Order should be upheld at least on the ground that, because it was ambiguous the Order should not have been made. I add in passing that the Order was in any event vacated on 8 February 2017 (see [76] above).

129. For at least the following reasons, Order (2) which was made on 3 February 2017 should also not have been made.

130. First, the ambit of the Order was too wide. If there was a legitimate interest to be protected, it could have been achieved by confining the Order to the non-disclosure of the names of the judicial officers concerned. As McHugh JA said in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477, “an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice”. Those observations are equally applicable to the prohibition of publication of statements made in court which, as here, do not constitute evidence in the proceedings.

131. Secondly, the Order was futile and therefore not “necessary” in the sense to which McHugh JA referred in John Fairfax v Police Tribunal (ibid). It was futile because it was apparent from what Mr Dowling said to the registrar on 3 February 2017 that the substance of the allegations that he had made in court on that day appeared on his website. The allegations were therefore already in the public domain and in any event the orders did not purport to restrain Mr Dowling from repeating his allegations outside court.

132. It is unnecessary for the purpose of determining these appeals to consider whether there were further reasons why Order (2) should not have been made, such as whether Mr Dowling’s accusations were not such as members of the public were likely to take seriously and therefore not such as to prejudice the administration of justice (as to which see Prothonotary of the Supreme Court of New South Wales v Dowling (No 6) [2018] NSWSC 1715 at [21]-[32]), or whether the inherent jurisdiction of the Court could be invoked in support of the suppression order made in the present case (see McGuirk v University of New South Wales [2010] NSWCA 104 at [174]-[187]).

Re-sentencing

133. It is not necessary to consider Mr Dowling’s claim that the aggregate sentence imposed on him was manifestly excessive, or “extremely harsh”, as the quashing of his conviction on Count 2, which was one of the bases for that aggregate sentence, requires this Court to exercise an independent discretion to re-sentence Mr Dowling in respect of Counts 1 and 3. As indicated earlier, at the conclusion of the hearing of the appeal, this Court made certain orders, including an order re-sentencing Mr Dowling to a fixed term of imprisonment of four months. My reasons for joining in the making of that order are as follows.

134. For the reasons that the primary judge gave in her conviction judgment, Mr Dowling’s Count 1 conduct constituted a serious contempt of court (see [84] above), and therefore merited significant punishment. Her Honour’s description in her sentencing judgment of the Count 1 conduct as a “disgraceful and scurrilous attack upon the Court”, which must have been “highly disturbing to all of those present”, was well-founded (see [91] above). It is not to the point that judges must “[b]y their training and temperament … [be] able to resist the sting of insults directed at them” (see Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [200] in relation to police officers). As the primary judge said (see [91] above), Mr Dowling’s conduct called into question the integrity of the Court and of individual judicial officers, and thereby interfered with the course of justice.

135. A term of imprisonment was appropriate in respect of this offence and of the Count 3 offence as Mr Dowling had previously been given a substantial fine in respect of a past contempt and had been imprisoned for four months for a separate contempt (see [94] above). I adopt her Honour’s observation that Mr Dowling’s prospects of rehabilitation are “very limited” and her Honour’s indication that there was only limited information available as to Mr Dowling’s subjective circumstances (see [95] above).

136. Moreover, I accept her Honour’s description of Mr Dowling’s Count 3 conduct as a “deliberate and wilful defiance of the orders of the Court”, and contumacious (see [91] above). However, the fact, as I have held, that Order (2) should not have been made in my view lessens, although to a limited extent only, the punishment to which Mr Dowling should be subjected under Count 3 for the breach of the Order. Although his beliefs did not have a rational basis, Mr Dowling appears to have been convinced of the righteousness of his position and, it appears to follow, that he believed that he was not obliged to comply with the court orders (see [92] above). By coincidence, and not as a result of any rational analysis, he was correct in thinking that Order (2) should not have been made and that fact should be taken into account on his sentencing to the extent I have mentioned.

137. For these reasons, it was appropriate for this Court to re-sentence Mr Dowling to four months’ imprisonment.

ORDERS

138. For the reasons I have given, the following orders should be made in addition to those made on 16 November 2018:

(5)   Allow the appeal against Mr Dowling’s conviction on Count 2 and quash that conviction.

(6)   Dismiss the appeal in respect of Mr Dowling’s convictions on Counts 1 and 3.

(7)   Allow the appeals against the making of Orders (1) and (2) on 3 February 2017 and set aside those Orders to the extent that they have not already been vacated.

(8)   With respect to the orders made on 22 August 2018, and in place of order (3) made in this Court on 16 November 2018, commit Shane Dowling to prison for four months to date from 22 August 2018, expiring on 21 December 2018.

(9)   Make no order as to the costs of the appeals.

139. MEAGHER JA: I agree with the reasons and proposed orders of Basten JA.

**********

Endnotes

Amendments

06 September 2019 - Footnote 8: Amending to read "(Campbell JA; Meagher JA agreeing)"

[15] - Replacing "been" with "be" after "can" on first line.

Footnote 27: Replacing "125a" with 125A".

Decision last updated: 06 September 2019