Express Cargo Services Pty Ltd v Mysko
[2025] SASC 149
•11 September 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
EXPRESS CARGO SERVICES PTY LTD v MYSKO
[2025] SASC 149
Decision of the Honourable Justice B Doyle
COURTS AND JUDGES - CONTEMPT - PARTICULAR CONTEMPTS - DISOBEDIENCE OF ORDERS OF COURT - INJUNCTIONS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
COURTS AND JUDGES - CONTEMPT - PUNISHMENT AND ENFORCEMENT - PUNISHMENT - ORDER - NATURE OF PUNISHMENT - IMPRISONMENT
On 17 May 2023, the respondent was found to have committed two acts of contempt of court consisting, generally, of the respondent disobeying the terms of injunctions enjoining her both from disclosing information gathered by the respondent in the course of her former employment by the applicant and from disparaging the applicant to its principal clients.
On 28 August 2024, the respondent was committed to a correctional institution for a term of four weeks but the term was suspended subject to the respondent giving certain further undertakings to the Court.
On 2 April 2025, the applicant filed an interlocutory application seeking both the cancelation of the suspended term and that the Court impose the term of committal to a correctional institution for a period of four weeks upon the respondent, on the basis that the respondent had allegedly breached her further undertakings to the Court. The applicant also sought its costs of the contempt proceedings on an indemnity basis.
Held, setting aside the order suspending the commitment of the respondent to a term of imprisonment of four weeks and ordering the committal of the respondent to a correctional institution for a period of four weeks, but partially suspending that term in respect of two weeks on terms that she comply, for a period of one year, with the undertakings previously given:
1.it has been proven beyond reasonable doubt that the respondent contravened the terms of the undertakings on numerous occasions and that the respondent had no lawful justification or excuse;
2.the order wholly suspending the commitment of the respondent to a term of imprisonment of four weeks is set aside;
3.the respondent is to be committed to a correctional institution for a term of four weeks, two weeks of which term is suspended, subject to the respondent’s compliance for a period of one year following her release with the undertakings given;
4.the respondent is to pay the applicant’s costs in respect of the proceeding on an indemnity basis.
Heavy Vehicle National Law (South Australia) Act 2013 (SA); Work Health and Safety Act 2012 (SA) s 104; Uniform Civil Rules 2020 (SA), referred to.
Construction, Forestry, Mining and Energy Union v Grocon Constructors (Vic) Pty Ltd (2014) 47 VR 527; Cornelius v R (1936) 55 CLR 235; Crafter v Webster (1980) 23 SASR 321; Express Cargo Services Pty Ltd v Mysko [2023] SASC 11; Express Cargo Services Pty Ltd v Mysko [2024] SASC 112; Gunton v Jackman [1981] Tas R 369; Koulouris v Haidaris (No 3) [2020] VSC 240; Moira Shire Council v Sidebottom Group Pty Ltd [2019] VSC 569; National Australia Bank Ltd v Juric (No 2) [2001] VSC 398; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69; R v Smith [2014] SASCFC 98; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358; Thurley v Hayes (1920) 27 CLR 548; Wishart v Australian Builders Labourers’ Federation (1960) 2 FLR 298, discussed.
EXPRESS CARGO SERVICES PTY LTD v MYSKO
[2025] SASC 149Civil: Application
B DOYLE J: This is an application for the cancellation of the suspension of a term of commitment to a correctional institution imposed upon the respondent, and for the respondent to pay the costs of the present proceeding on an indemnity basis.
Background
The applicant, Express Cargo Services Pty Ltd (‘ECS’), carries on a business of logistical freight management services, predominantly in the energy sector. The respondent, Ms Mysko, was briefly employed as the applicant’s compliance manager in June 2020.
Ms Mysko communicated with customers and clients of the applicant making allegations that the applicant was failing in its safety compliance. The statements caused the applicant great concern because safety and compliance is very significant in its business. Following a lengthy trial, in this Court, Stein J found that in breach of her contractual duties Ms Mysko made false assertions in her communications and disclosed confidential information. Some of those communications were made with the intention of injuring the applicant.[1]
[1] Express Cargo Services Pty Ltd v Mysko [2023] SASC 11.
It was further found that Ms Mysko was not obliged by the provisions of the Heavy Vehicle National Law (South Australia) Act 2013 (SA) (‘HVNLSA Act’) to send the communications. She was not a qualifying whistleblower and the communications were not qualifying disclosures within the relevant legislative whistleblower provisions.[2]
[2] Express Cargo Services Pty Ltd v Mysko [2023] SASC 11 at [496] – [517] (Stein J). Ms Mysko’s appeal was dismissed: Mysko v Express Cargo Services Pty Ltd [2023] SASCA 120.
The applicant succeeded in obtaining declaratory and permanent injunctive relief to prevent Ms Mysko from further communicating false statements, disclosing information gained during employment and engaging in conduct to further injure the applicant.
At an earlier stage of the proceedings, the Court had granted interlocutory injunctive relief enjoining Ms Mysko from engaging in certain conduct.
On 17 July 2020, Ms Mysko was enjoined by Judge Dart from making any contact with, or sending or forwarding any correspondence to any client of the applicant, including Ensign Australia Pty Ltd (‘Ensign Australia’).
Later, on 24 December 2021, Stein J granted a wider injunction which by its terms enjoined Ms Mysko from:
1.1Disclosing, by any means of communication or any other act, to any person or entity (other than a legal practitioner retained by the Respondent and who has filed a notice of acting for the Respondent), any information imparted to or gained by the Respondent during the course of her employment by the Applicant concerning any aspect of the business operations of the Applicant, such information including (but not limited to) any views, beliefs or opinions that were formed or held by the Respondent during the course of, or by reason of, her employment by the Applicant concerning any aspect of the business operations of the Applicant; and
1.2Engaging, at any time or place, in any conduct for the purpose of injuring the Applicant in any way, or by reason of which the Applicant might be so injured, including by bringing the Applicant into disrepute, or by interfering with any business affairs in which the Applicant is or might be involved, or by interfering with any contractual relations to which the Applicant is or might be a party.
Following the trial, and for the reasons published by Stein J, final injunctive relief was granted, in these terms:[3]
3.The respondent is permanently enjoined, at any time or place and by any means of communication or other act (including through United Transport Group), from disclosing to any person or entity (other than a legal practitioner with a retainer to act for the respondent) any information imparted to or gained by the respondent during the course of her employment by the applicant concerning any aspect of the business operations of the applicant. Such information includes (but is not limited to) any matters the subject of the Communications (as defined [in a Schedule to the orders]) and any views, beliefs or opinions that were formed or held by the respondent during the course of, or by reason of, her employment by the applicant concerning any aspect of the business operations of the applicant.
4.The respondent is permanently enjoined, at any time or place, from performing any act or engaging in any conduct (including through United Transport Group) for the purpose of injuring the applicant in any way, or by reason of which the applicant might be so injured, including by bringing the applicant into disrepute or by interfering with any business affairs or contractual relations to which the applicant is or might be a party.
[3] CIV-20-001259, FDN 217.
On 17 May 2023, the Chief Justice found that Ms Mysko committed two acts of contempt.[4]
[4] See Express Cargo Services Pty Ltd v Roxanne Mysko (Supreme Court of South Australia, Kourakis CJ, 17 May 2023) 2, 4.
It was found that by corresponding with Ensign Energy Services Incorporated on 8 April 2022, in circumstances where it was likely that any such correspondence would be forwarded on to Ensign Australia, she contravened the injunction made by Judge Dart on 17 July 2020.
Because the email sent to Ensign Energy Services Incorporated included an attachment containing information gathered by Ms Mysko in the course of her employment by the applicant and recording her beliefs as to the nature of the applicant’s business, it also contravened the injunction made by Stein J on 24 December 2021.
In the course of his findings, the Chief Justice observed that:
… the explanations given by Ms Mysko cannot possibly be a reasonable excuse for breaching the orders. I cannot look beyond the orders. The orders were made in the context of the safety legislation to which Ms Mysko has referred and were made irrespective of her claims in that respect. The court orders having been made, having continued in existence and not having been set aside, the matters on which Ms Mysko relies by way of explanation for that conduct, cannot be recognised as a reasonable excuse.
On 14 August 2024, the matter was listed for hearing before Kourakis CJ for the purposes of determining the sanction, if any, that might be imposed as a consequence of the proved acts of contempt. Ms Mysko failed to appear. A warrant for Ms Mysko’s apprehension was issued in order to secure her attendance at an adjourned hearing on 28 August 2024. She was not apprehended pursuant to the warrant but voluntarily presented herself on that occasion.
In his reasons, the Chief Justice observed that:[5]
In the present case, the charges of contempt found to have been committed by the respondent are serious. In nature, they amount to more than mere civil contempt occasioned by non-adherence to curial orders. The deliberateness and hubris with which Ms Mysko challenged the authority of the Court, which she herself acknowledged in her voluminous correspondence and submissions before Judge Dart and me, cannot be described as anything other than contumacious. Of course, the fact that Ms Mysko’s contraventions were self-admittedly deliberate does not, of itself, amount to contumacy;[6] but the circumstances surrounding the respondent’s contempt go further than this.[7]
Ms Mysko, until today, had shown no contrition. Indeed, she has asserted the legitimacy of her idiosyncratic belief in the righteousness of her conduct over the judgments of this Court and has deliberately and knowingly acted accordingly.
In my view, the combination of the contumacy attaching to the respondent’s contempt, her lack of contrition and continuation of her misinformed and egotistical campaign against the applicant and those whom she says have denied her justice, requires specific deterrence.
The respondent’s continued defiance of this Court’s orders, and the need for this Court to vindicate and enforce its prohibitions indicate that commitment to a correctional institution is the only appropriate punishment in the circumstances. I fix a term, which I will suspend, of commitment of four weeks. …
[5] Express Caro Services Pty Ltd v Mysko [2024] SASC 112 at [16]-[19]. An extension of time within which to seek leave to appeal was refused: Mysko v Express Cargo Services Pty Ltd [2024] SASCA 134.
[6] Cf Moira Shire Council v Sidebottom Group Pty Ltd [2019] VSC 569, [14] (Forbes J); Koulouris v Haidaris (No 3) [2020] VSC 240, [62] (Connock J).
[7] I proceed here on the basis that contumacy is to be regarded as a matter relevant to penalty, rather than an element of contempt that must be pleaded. See, eg, Construction, Forestry, Mining and Energy Union v Grocon Constructors (Vic) Pty Ltd (2014) 47 VR 527, 588-92 [253]-[270] (Ashley, Redlich and Weinberg JJA).
He explained why he suspended the term of commitment in these terms:[8]
By reason of the submissions and explanations given to me by Ms Mysko this morning, I will suspend that period of imprisonment.
It appears to me that, with the help of others, but especially of her family, Ms Mysko has come to appreciate the harm she is doing herself by pursuing this matter and not letting it go.
Her demeanour and the content of her submissions before me today is in marked contrast to that which I and other judges have seen in the past. It appears to me that Ms Mysko appreciates the extent to which she has lost much of the joy which being with her family can give while she has pursued this matter obsessively. These things give me some confidence that the applicant’s interests will be sufficiently protected by suspending that period of four weeks’ imprisonment.
I propose to suspend the term of committal upon Ms Mysko giving undertakings to the Court in the following terms:
1.The respondent will not engage in correspondence or communication that adversely affects the business interests or reputation, or is calculated to affect the business interests or reputation, of the applicant, with any person or entity, wheresoever that person or entity may be located, without lawful justification or excuse.
2.The respondent will not, by any means whatsoever, allege, represent, or insinuate to any person – be they natural or corporate, and wheresoever they may be located – that the applicant has breached any occupational health or safety law or standard, without lawful justification or excuse.
3.The respondent will take all steps reasonably available and practicable to her to remove from publication any comments, posts, and materials falling within the ambit of Undertakings 1 and 2.
[8] Express Caro Services Pty Ltd v Mysko [2024] SASC 112 at [21]-[24].
Before leaving the Court, Ms Mysko signed undertakings largely reflecting these terms.[9] But it was not long before she commenced repeatedly to make publications on the online platform ‘LinkedIn’ which, so the applicant contends, breached the undertakings.
[9] The first undertaking as signed also included an undertaking not to engage in correspondence or communication that is ‘reasonably likely to affect’ the business interests or reputation of the applicant.
The applications and the procedural context
By an interlocutory application filed on 10 April 2025, the applicant seeks findings that Ms Mysko has contravened these undertakings and that:
(1)the suspension of the term of committal be cancelled and the term of committal to a correctional institution for four weeks made by the Chief Justice on 28 August 2024 be imposed on Ms Mysko;
(2)Ms Mysko pay the applicant’s costs of and incidental to the proceedings, including the current application, on an indemnity basis.
The application is supported by two affidavits sworn by the applicant’s solicitor, Mr David Elix. These affidavits exhibit ‘LinkedIn’ posts apparently made by Ms Mysko and articles published by ‘Michael West Media’ which the applicant contended were contributed to by Ms Mysko in breach of her undertakings.
At a hearing on 16 April 2025, the matters raised by the applicant’s application were listed for trial before me on 25 June 2025. Ms Mysko was notified of this and had notice of the hearing date. She sent a raft of emails to the Court which made that clear.
Ms Mysko did not appear on that occasion. Nor, despite being informed that any request to vacate or adjourn the hearing was required to be made by application, did she make such an application. In informal correspondence sent by her she made clear that she would only be contactable by mobile telephone.
At the hearing on 25 June 2025, the Court dialed Ms Mysko’s mobile phone number. She was given an opportunity to make a submission that she should be permitted to participate in the trial remotely by telephone. She made a number of submissions to the effect that she was in the process of seeking legal assistance and that she did not feel ‘safe’ attending in person. For reasons I gave at the time, I was not persuaded that she should be permitted to participate by phone, nor that she had made out grounds for an adjournment.
That said, having regard to the nature of the hearing, I considered it was highly desirable that attempts be made to secure her in-person attendance. For that reason I directed that a warrant for her apprehension issue and listed the matter on 16 July 2025, unless Ms Mysko were to be apprehended and brought before the Court sooner.
Efforts to apprehend Ms Mysko were unsuccessful; she was not able to be located. However, prior to the resumed hearing date, Ms Mysko filed several interlocutory applications and a number of affidavits. It is not necessary to describe them in detail. Whilst expressed in a various and overlapping ways, essentially the applications sought:
(1)a permanent stay or dismissal of the proceeding; and
(2)‘violence intervention orders’ or permanent injunctive relief to protect Ms Mysko and her family.
The applications made reference to a variety of laws including s 104 of the Work Health and Safety Act 2012 (SA) and the HVNLSA Act. The materials make repeated reference to her claimed status as a ‘whistleblower’.
Ms Mysko swore two affidavits ostensibly in support of these applications. They comprise a mixture of factual assertion and allegation (inadmissible in form to a significant degree) and argument (legally misconceived to a significant degree). Absent from the affidavits was any clear, much less admissible, foundation for Ms Mysko being excused from attendance in person, either on the basis that the applicant had threatened her personal safety, or on the basis that she is suffering from a health condition that would preclude her attendance.
Despite this, when she again failed to appear at the hearing on 16 July 2025, the Court again took the step of telephoning Ms Mysko in order that she be given a further opportunity to explain why she was not present, or why the matter should not proceed in her absence.
Ms Mysko informed the Court that in the intervening period she had suffered from influenza and had been receiving help from ‘counsellors’. She said she had little memory of the previous hearing.
I dismissed her interlocutory applications. My reasons for doing so were that: the basis for staying or dismissing the proceedings involved a collateral attack upon, or invitation to revisit, the merits of the injunctive and other relief obtained against her and/or the previous findings of contempt, none of which had been challenged let alone disturbed on appeal; the material in support of those contentions was in conclusory, argumentative and inadmissible form; and the applications were procedurally incompetent.
I was also not persuaded that a proper basis had been made out for adjourning the proceedings more generally. That said, I decided that whilst I would receive the evidence of the applicant and hear submissions from the applicant on the two main issues (contravention of the undertakings and costs) with Ms Mysko present by telephone, I would then allow Ms Mysko a further period (of nearly four weeks) within which to reflect on the transcript and the submissions made, seek advice, and to bring forward any evidence and submissions upon which she wanted to rely in relation to those topics.
I also sought to assist Ms Mysko by identifying, at the conclusion of the hearing, the topics that she might wish to consider addressing, both in relation to whether there were contraventions of the undertakings and, if so, what the consequence should be.[10]
[10] One topic that had been raised by the applicant in its submissions was whether, in the event that Ms Mysko were to proffer an undertaking to seek counselling in relation to her apparent fixation with the applicant and safety issues relating to it, that might militate in favour of an outcome that is less burdensome than the simple cancellation of the suspension of the term of committal imposed by the Chief Justice.
Unfortunately, rather than prepare and file submissions relevant to the question of whether her publications amounted to contraventions, or evidence which demonstrated contrition or otherwise suggested mitigating circumstances, Ms Mysko instead sent an email which purported to comprise a ‘formal notification of misconduct’ on the part of various judges (including me) and lawyers involved in her litigation. Amongst the contentions made was that:
Your conduct – alongside that of Judge Dart, Judge Stein, Judge Bleby, Justice Livesey, and others – constitutes a coordinated breach of Commonwealth law, including:
s 75(v) of the Constitution – Officers of the Commonwealth acting unlawfully
s 109 – State interference overriding federal proctections
s 93T – Collusive retaliation and gang-style suppression of whistleblower evidence
You are further implicated in aiding and abetting criminal misconduct by [the applicant’s counsel] (NHVR), and colluding with [the applicant and its solicitors], who actively engaged [counsel’s corruption]. These actions represent a breach of public trust and statutory obligations under federal law.
The email makes unsubstantiated allegations of corruption and collusion. It is not necessary or appropriate to engage with them.
In concluding, Ms Mysko purported to notify the Court that any ‘further attempt to compel participation under your jurisdiction will be treated as unlawful retaliation and obstruction of justice’. Ms Mysko has sent a number of subsequent emails to the Court of a similar nature. She claims that the Court lacks jurisdiction because the matter is now ‘federal’.
Despite Ms Mysko repeatedly saying that she was seeking or was in the process of receiving legal advice, unfortunately, that has not occurred.
In the circumstances, it will be necessary for the Court to consider for itself the submissions that Ms Mysko might have made on her own behalf.
Contraventions of the undertakings
The undertakings ultimately given by Ms Mysko were as follows.
I give the following undertakings to the Court.
I understand that if I fail to obey the terms of my undertakings I may be brought back to Court and the Court may cancel the suspension of the imprisonment imposed upon me and I will have to serve the sentence of imprisonment, or such lesser term of imprisonment as may be set by the Court:
Undertakings
1.I will not engage in correspondence or communication that adversely affects the business interests or reputation, or is calculated to affect the business interests or reputation, or is reasonably likely to affect the business interests or reputation of the applicant, with any person or entity, wheresoever that person or entity may be located, without lawful justification or excuse.
2.I will not, by any means whatsoever, allege, represent, or insinuate to any person – be they natural or corporate, and wheresoever they may be located – that the applicant has breached any occupational health or safety law or standard, without lawful justification or excuse.
3.I will take all steps reasonably available and practicable to me to remove from publication any comments, posts, and materials falling within the ambit of Undertakings 1 and 2.
The applicant alleges that between 28 August 2024 (when she gave the undertakings) and early June 2025, Ms Mysko has posted or published a significant number of posts on ‘LinkedIn’, including by way of comments on other LinkedIn members’ posts.
The applicant prepared a table in which it identified the particular undertakings said to have been contravened by particular posts alleged to have been made by Ms Mysko. That table is reproduced below.
Item Type Exhibit No. per FDN 57 Page No. Breach Limbs 1 LinkedIn Post DME 75 11 U1 & U2 2(a), 2(b) & 3 2 LinkedIn Post DME 75 15 U2 3 LinkedIn Post DME 75 17 U2 4 LinkedIn Post DME 75 25 U2 5 LinkedIn Post DME 75 26-27 U1 & U2 2(a), 2(b) & 3 6 LinkedIn Post DME 75 28 U1 & U2 2(a), 2(b) & 3 7 LinkedIn Post DME 75 31 U1 & U2 3 8 LinkedIn Post DME 75 32 U1 & U2 2(a), 2(b) & 3 9 LinkedIn Post DME 75 34 U1 & U2 2(a), 2(b) & 3 10 LinkedIn Post DME 75 35 U1 & U2 2(a), 2(b) & 3 11 LinkedIn Post DME 75 36 U1 & U2 2(a), 2(b) & 3 12 LinkedIn Post DME 75 42 U1 & U2 2(a), 2(b) & 3 13 LinkedIn Post DME 75 45 U1 & U2 2(a), 2(b) & 3 14 LinkedIn Post DME 75 46 U2 15 LinkedIn Post DME 75 48 U2 16 LinkedIn Post DME 75 55 U2 17 LinkedIn Post DME 75 64-65 U1 & U2 2(a), 2(b) & 3 18 LinkedIn Post DME 76 85 U2 19 LinkedIn Post DME 76 86 U1 & U2 2(a), 2(b) & 3 20 LinkedIn Post DME 76 87 U1 & U2 2(a), 2(b) & 3 21 LinkedIn Post DME 76 90 U1 & U2 2(a), 2(b) & 3 22 LinkedIn Post DME 76 94 U1 & U2 2(a) & 3 23 LinkedIn Post DME 76 98 U1 & U2 2(a) & 3 24 LinkedIn Post DME 76 99 U1 & U2 2(a), 2(b) & 3 25 LinkedIn Post DME 76 103 U1 & U2 2(a), 2(b) & 3 26 LinkedIn Post DME 76 113 U2 27 LinkedIn Post DME 76 118 U2 28 LinkedIn Post DME 76 119 U1 3 29 LinkedIn Post DME 77 122 U1 & U2 2(a), 2(b) & 3 30 LinkedIn Post DME 77 130 U2 31 LinkedIn Post DME 77 131 U2 32 LinkedIn Post DME 77 135 U1 & U2 2(a), 2(b) & 3 33 LinkedIn Post DME 77 141 U1 2(a), 2(b) & 3 34 LinkedIn Post DME 77 144 U1 2(a), 2(b) & 3 35 LinkedIn Post DME 77 146 U1 & U2 2(a), 2(b) & 3 36 LinkedIn Post DME 77 152 U2 37 LinkedIn Post DME 77 155 U2 38 LinkedIn Post DME 77 163 U2 39 LinkedIn Post DME 77 167 U2 40 LinkedIn Post DME 77 169 U2
The applicant contends that the various posts individually or cumulatively contravened the undertakings. I will first consider them individually. That requires consideration to be given to the meaning of the undertakings.
The meaning of the undertakings
Undertakings are to be given a sensible meaning, consistent with their actual terms, but having regard to the context in which they were given.[11] As Lindgren J has observed, in the construction of an undertaking, its purpose is properly influential.[12]
[11] S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 387 (Priestley and Clarke JJA), Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [59] (Beazley JA, McColl JA agreeing).
[12] Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [156] (Lindgren AJA, McColl JA agreeing).
Here, the relevant context includes the injunctions with which Ms Mysko had failed to comply (resulting in the findings of contempt) and the final injunctive relief granted by Stein J. Plainly, the undertakings were intended to ensure that there was no further conduct that might cause harm to the applicant of a kind the injunctive relief was designed to avoid. They were given by Ms Mysko as a means of providing comfort to the Court and to the applicant that Ms Mysko was serious in her commitment to avoid further conduct of the kind which had rendered her in contempt of Court. They should not be understood as limited to undertakings to refrain from conduct to the extent that some particular consequence came to pass as a result which, at the time of the conduct, might be unpredictable, or a matter of happenstances.
The first undertaking may be understood as comprising three potentially overlapping limbs. Ms Mysko undertook not to engage in correspondence or communication that: (1) adversely affects; (2) is calculated to [adversely] affect; or (3) is reasonably likely to [adversely] affect the business interests or reputation of the applicant.
As will be explained, the applicant relies on the second and third limbs.[13]
[13] Recognising that if neither of those limbs is proved to have been contravened it is inherently unlikely that the first limb will have been.
Where the expression ‘is calculated to’ appears together with, or as an alternative to, the words ‘intended to’, it may connote ‘is likely to’.[14] When it appears on its own, it may also carry the meaning ‘likely’ or ‘apt’,[15] however, context may alternatively dictate that it means ‘designed to’ (or ‘intended to’).[16] In the present context, the second limb should not be understood as merely replicating the third limb. I consider that ‘calculated to’ connotes ‘designed to’ or ‘intended to’. The undertaking is breached where the relevant correspondence or communication has a consequence, as well as where it is intended to or is reasonably likely to have that consequence. In reaching that conclusion I do not rely wholly upon an interpretative presumption against surplusage, the limits of which have been recently remarked upon.[17] I consider that giving each limb a meaning with potentially different operation more fully achieves the evident purpose of the undertakings.
[14] See, eg, Thurley v Hayes (1920) 27 CLR 548.
[15] See, eg, Cornelius v R (1936) 55 CLR 235, Gunton v Jackman [1981] Tas R 369, Crafter v Webster (1980) 23 SASR 321 at 327 (Mitchell J).
[16] Wishart v Australian Builders Labourers’ Federation (1960) 2 FLR 298 at 301 (Joske and Eggleston JJ).
[17] Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35 at [71] – [75] (Edelman J).
Whilst, in my view, the second limb focuses upon the design or purpose or intention of Ms Mysko, a statement might be calculated to adversely affect the applicant’s business interests or reputation even if Ms Mysko believed she was justified in doing so, or was serving some higher perceived purpose in doing so. The adverse affectation of the applicant’s interests need not be the sole or ultimate purpose. A statement which is inherently critical of or damaging to the reputation of the applicant would be calculated to affect the applicant’s business interests or reputation even if My Mysko’s internal justification was to bring about some change that she believed would be for the benefit of the public or workers employed by the applicant.
In respect of the third limb, in my view, the undertaking would be breached by engaging in correspondence or a communication in a forum in circumstances where a reader of the relevant statement would, if they gave credence to the statement, form an adverse view of the applicant’s business practices. That said, even if a reader did not necessarily assume the literal truth or perhaps the full breadth of a disparaging suite of allegations, it may be open to conclude that the statement is reasonably likely to adversely affect business interests or reputation. The scope for ‘smoke / fire’ reasoning on the part of a reader is clear. Remembering the purpose of the undertakings, and giving them a commonsense operation, it should not lie in the mouth of a person who has attempted to achieve widespread publication of a statement to say that no-one would have given credence to the statement. By that logic a more outlandish or extravagant slur might be less likely to contravene the undertaking than a measured one. The undertakings should be understood as having a sensible meaning consistent with the purpose they were designed to achieve.
Having said this, the first undertaking only forbade correspondence or communications ‘with any person or entity’. As a consequence, a post will not amount to a contravention of the undertaking unless it can be inferred (to the requisite standard) that at least one person received and viewed the post. Otherwise it would be no different to making an adverse statement about the applicant in a private diary.
Turning to the second undertaking, it precluded Ms Mysko ‘by any means whatsoever’ from alleging, representing or insinuating to any person that the applicant has breached any occupational health or safety law or standard. To ‘insinuate’ is to subtly or slyly suggest a proposition without directly stating it. Again, the words ‘to any person’ requires, at least, a finding that one or more persons read the statement.
There is another general matter that requires consideration. As will be seen, the posts in question do not identify the applicant by name. There is no necessary or independent requirement that, in order for a post to amount to a contravention, it must, in its own terms, name the applicant. However, the extent to which a particular post indirectly identifies, or would facilitate the identification of, the entity to whom reference is made, will be part and parcel of a determination of whether the first and second undertaking has, as a matter fact, been contravened.
In my view, in the case of a post which is clearly designed to suggest that the applicant has contravened health and safety laws, but which names only the applicant’s director, the post might be ‘calculated to … [adversely] affect the applicant’s business interests or reputation’, even though the author has, perhaps with a misguided belief that doing so would protect her from consequence, refrained from explicitly naming the applicant. In such a case it might be found that a post was calculated to adversely affect the applicant’s interests or reputation even if it cannot be found that that result was likely to be achieved.
However, in considering whether such a post is ‘reasonably likely to … [adversely] affect the applicant’s business interest or reputation’ or to ‘insinuat[e] … that the applicant has breached any occupational health or safety law or standard’, some consideration needs to be given to the inherent likelihood or tendency of the publication to lead to the identification of the applicant. A view may need to be formed about whether, having regard to the nature of the content, and the extent to which it encouraged or facilitated the making of inquiries or the drawing of connections by reference to extrinsic material, one or more readers might ultimately deduce or infer the identity of the entity which is being suggested to have breached health and safety laws. In considering that question, the intensity of the allegation may have a bearing, because a reader whose interest is thereby excited might be more likely to engage in the process of making inquiries or drawing connections than they would be if the publication were cautiously or mildly expressed.
There is a further consideration relevant to this issue. Whilst the applicant has particularised its case of breach by reference to individual posts, it may be appropriate to infer that some readers of Ms Mysko’s later posts will have read, or may be prompted to read, earlier posts made by her. That matrix of possibilities forms part of the background to the assessment of whether any particular post might contravene a limb of an undertaking.
Finally, the context in which the undertakings were given is also relevant in considering the qualification ‘without lawful justification or excuse’. As earlier mentioned, in the course of finding that contempt had been committed, the Chief Justice rejected the contention that some overarching justification relating to whistleblowing or the alleged truth of the allegations could amount to a reasonable excuse. Given this, such matters could scarcely be understood as falling within the exemption just mentioned. I need not determine the precise scope of that exception, but an obvious example would be where a communication or correspondence occurred under compulsion, such as where Ms Mysko was examined by an authority and required to answer questions on pain of penalty.
The posts
The items listed in the table filed by the applicant on 1 August 2025 (FDN 83) formed a subset of a larger number of LinkedIn posts made under the name ‘Roxanne Mysko’ and exhibited to the affidavit of Mr Elix dated 2 April 2025 (FDN 57). The items are not strictly chronological. Items 1-17 are broadly in reverse chronological order for the period between 28 August 2024 and 23 January 2025. Items 18-28 relate to the period 24 January 2025 to 6 February 2025. Items 29-40 relate to the period 7 February 2025 to 27 March 2025.
The designations in the final column of the table are intended to convey that, in the applicant’s submission, the communication in question was:
·in the case of 2(a) – calculated to adversely affect the business interests or reputation of the applicant (which the applicant submits should be subjectively assessed);
·in the case of 2(b) – reasonably likely to have that effect (viewed objectively by reference to the foreseeable consequences of the communication);
·in the case of 3 – published or disseminated in such a manner that at least one person (other than Ms Mysko) has viewed, or has likely viewed, the content and the content contains sufficient information such that a reasonable person could identify the applicant as the subject of the communication, either directly or by reasonable inference.
For the reasons I have given, I would accept that the formulation of categories 2(a) and 2(b) essentially reflects the second and third limbs of the first undertaking. The third category informs consideration of whether the undertakings are contravened.
It is not necessary or practicable in these reasons to traverse the detail of every post, but it is appropriate to address a number of them, so as to expose the reasoning process I have applied in respect of the balance.
Before doing so, I indicate that I infer and find, beyond reasonable doubt, that each of the posts exhibited to the applicant’s solicitor’s affidavits was made by or at the direction of Ms Mysko. The posts are made in her name and concern matters in which she was involved. She has not submitted that the obvious inference cannot be drawn. I find beyond reasonable doubt that she caused the posts to be made.
I further find that in respect of each post at least one person read the post. My basis for that finding is that: the posts were available to be read (that is, they were not private posts or direct messages); many of the posts employed hashtags; some posts were comments on other posts by other persons or publishers or involved re-posting the content of other persons; many if not most of the posts appeared to have been ‘liked’; and many of the posts attracted comments (which would scarcely have been made if the person had not read some of the post to which the comment relates). In my view, I can have regard to those considerations to draw the more general inference, beyond reasonable doubt, that all of the posts were read, as they were plainly intended to be, by one or more persons. Indeed, it is likely that a not insubstantial number of people read each post.
The first relevant post is item 17. On the face of the screen shot, it was published approximately 2 months before 23 January 2025. It reads, in part:
If you support #criminal #misconduct #reporting type #yes in comments and #keep #sharing and #tag people
#Australian #government and #Australian #courts and #bottom feeding #lawyers are abusing crap out of whistleblowers #against #whistleblowers and #how #dare they #not #uphold the #intent of the #laws
I can’t talk about my case but what I can say is I’ve been #unlawfully #damaged as an #eligible #whistleblower to the #NHVR that has been corrupted in not upholding safety on our roads. #SACourt #judges have failed to uphold the #laws in our #judiciary #system
The #SA #Attorney #General and the #ICAC #JCC (Judiciary Conduct Commission) has #failed to protect every Australians safety – the JCC has failed to hold SA Court accountable to health and safety laws, heavy vehicle laws, corporation laws, and Fair Work laws.
Meanwhile #bottom #feeder #lawyers have been abusing me against the laws for 4.5 #YEARS and #judges colluding against health and safety #laws The bottom feeder lawyers refused to provide any evidence whatsoever in discovery to the courts, it is their #duty to the #court to provide evidence to the court the late #Judge #Blue stated, …
#The #Judges have absolutely #misused their #power and helped bottom feeder lawyers by continuing the criminal offence case against me all #obstructing and #perverting #justice and #perjury by judges because the #did #NOT have the evidence and absolutely knew full well they as judges did not have the evidence requested and required for mandatory safety reporting to #protect you as public on our #roads.
#SACourt is the #mostdangerous #place on #earth for me as a #woman being abused unlawfully by a #gang of #men reported for criminal misconduct and #mostdangerous #place on #earth for a #health and #safety manager that had #mandatory safety duties by laws the SA Court has ignored with corruption and colluding. This is a crime by judges as they #prosecute #other #truckies and #companies in #chainofresponsibility.
#Courts around Australia are upholding these laws.
Whilst, in one place, Ms Mysko states that she ‘can’t talk about’ her case, the post goes on to make assertions which clearly suggest that she had reported misconduct and breach of safety duties as a safety manager. The post conveys the implication that the culprits were or included her employer and the ‘CEO’. By going on to state that her ‘case is open for public to pay $29 to the court and get the evidence and reports how unsafe the judges have covered up’, the post conveyed that the alleged details are to be found in a court proceeding in South Australia and actively encouraged readers to make inquiries which would readily enable the applicant’s connection with Ms Mysko to be ascertained.
In my view, the post was calculated to adversely affect the business interests or reputation of the applicant. It contravenes the first undertaking for that reason. There is a strong case for saying that it contravened the other limb of the first undertaking and the second undertaking, the only real issue being that apart from Ms Mysko’s identity the post does not mention other explicit details that have a tendency to identify the applicant. Giving Ms Mysko the benefit of the doubt and on the basis that there is no evidence before the Court of earlier posts which might bear on that issue, I would decline to hold that the post otherwise contravenes the undertakings.
Next, item 16, published approximately one month later, comprises a short post in the following terms (again, under the name Roxanne Mysko).
#SACourt as well for my case loaded with corruption, massive fraud and bribery covering up unsafe company. The court has collided [sic] and used injustice deceit against laws for violent against woman unsafe employer.
The post does not name Ms Mysko’s employer but conveys that it was unsafe and/or violent and that this was the subject of a proceeding before a South Australian court. Although I might have found that the post was calculated to adversely affect the business interests or reputation of the applicant, the applicant did not make that contention. As with item 17, I would give Ms Mysko the benefit of the doubt as to whether it otherwise contravenes the undertakings.
Item 14, published approximately two weeks later, was in these terms:
I’ve had 4.5 years violence and coercion abuse, 400 court attendances and actions for mandatory reporter duty and PCBU reporting duties. Vexation, violation and harassment, entered my home and unlawful theft of 20 years of my documents based on because I reported serious safety violations in the COR as a Primary Duty Holder under s.26. While 4 #dead #weekly and these same people prosecute truckies.
It's time to expose this criminal fraud and violation from courts, lawyers and JCC and ICAC failures.
Lawyers should feel guilty and ashamed of themselves when they fail to report crimes by legal professionals.
2 years plus later of my own complaint to JCC the Commissioner is being complicit to deceitful to laws misconduct.
Again, the employer was not named, but serious allegations were made about Ms Mysko’s employer in a context which linked them to a case in which Ms Mysko was involved. I reach the same conclusions as I did with respect to item 16 (and item 15, which I have not detailed in these reasons).
Shortly after this, item 12 was published in these terms, by way of a comment on another person’s reference to a struck-off lawyer in Victoria:
Yeah have a look at my SA civil case reporting the worst unsafe trucking companies in oil & gas, corruption by lawyers and fraud to taxpayers damages to a safety Whistleblower.
In my view this post was not only calculated, but was reasonably likely in all the circumstances, to adversely affect the business interests or reputation of the applicant because it directly facilitated an identification of her employer in the context of an allegation of an unsafe trucking company working in oil and gas. In a post shortly prior to that (item 13) she had conveyed that the company in question was a contractor of Santos. Santos is mentioned repeatedly in Stein J’s judgment in this matter.[18] By reason of the ease of identification and the directness of the statement I would also find that it alleged, represented or insinuated that the applicant had breached an occupational health or safety law or standard.
[18] Express Cargo Services Pty Ltd v Mysko [2023] SASC 11.
At around the same time, item 10 was published, which stated, in part:
I reported to Santos as a COR & safety manager whistleblower on 22June 2020 – about their contractors criminal safety misconduct and my identity was revealed on 30 June 2020 – I reported to regulators federal and state 16 June 2020.
Santos has done zero to protect me as a whistleblower working for their contractor with same tasks with drilling contractors!! Retaliation commenced 1 July 2020 and still going.
So no safety violations of huge safety risks to cause deaths = misleading public = Green and White Washing violations. …
It is common ground, and evident from Stein J’s reasons, that the applicant was a contractor of Santos. Whilst I would infer the post was calculated to affect the applicant’s business interests and reputation, I am less confident that readers would be in a position to infer the entity being referred to given that the post makes no more than an oblique reference to court action. Again, giving every benefit of the doubt to Ms Mysko, I would not find contraventions on other bases beyond reasonable doubt.
Item 9, however, published at about the same time, makes explicit reference to Stein J having (purportedly dishonestly) stated that Ms Mysko could not report safety violations to Santos about their contractors. I find that that post contravened the undertaking in multiple respects.
Item 6 comprises a post made in early to mid January 2025 which included screenshots of a photograph depicting the Chief Justice in the presence of, among others, a lawyer from the firm acting for the applicant in these proceedings.[19] The post stated (in part):
Here is SA Chief Justice drinking wine at the blackmailing law firm I’m up against covering up for criminal conspiracy I reported to regulatory authorities who did nothing.
…
#BOYS #CLUB using violence against me as a mandatory health and safety reporter by law section 14 WHS Act and position description I’m a Person Conducting Business or Undertaking (PCBU) and I held Executive Office Duty section 26 NHVL Act with personal liability and it’s criminal laws. No regulatory authority investigation and this corrupt criminal lawyer REFUSED all discovery. The JUDGEMENT FROM THE COURT IS FULL OF PERJURY AS THEY CONTINUED ABUSING ME KNOWING ALL DISCOVERY WAS REFUSED. Should have been dismissed by corrupt judges. This Chief Justice prosecuted Cleanaway $12 million fines not upholding this EXACT law I reported as a mandatory safety whistleblower. Judges get paid by public money funds. The court transcript has admission 28 days straight Fatigue- then that driver drove down Toowoomba range 2 trailers loaded with rig move to Orange NSW from Qld working under Santos and Ensign. PID as apparently Acts & laws don’t apply when judges are ‘mates’ with lawyers
[19] It should be made clear that the photograph substantially pre-dates the Chief Justice’s involvement in the proceedings and there can be no criticism or concern raised about the fact of an interaction of this kind, plainly at a function, with the solicitors who much later acted for the applicant in this matter.
Whilst not naming the applicant, the post makes apparent the identity of the law firm acting for the applicant, the judicial officer dealing with an aspect of the proceeding and also refers to Santos and Ensign. In those circumstances, I find that the post was calculated to, and was reasonably likely to, adversely affect the applicant’s business interests or reputation. It also insinuated that there had been breaches of health and safety law by the applicant.
Item 1 comprises a post made in late January 2025 in these terms:
I got stood down and abused with false allegations 14 hours from home travelling 2000km because as a Compliance, health and safety Manager I had been reporting Catagory 1 safety violations, and the abuse and retaliation was disgraceful. SA Court then allowed the company to take civil action AFTER I reported to SA Safework and NHVR and Federal MP. This company has zero safety on 70 subcontractors in heavy vehicles, then drivers working 28 days STRAIGHT.
SA Court Judge, Judge Dart allowed these criminals to take 20 years of my personal documents because I reported BY LAW to Santos, Ensign Energy, Easternwell. It’s worse SA Court allowed this because I reported to the 3 companies they contracted to.
It’s worse SA Court has covered up I was instructed in writing by the company to damage his competitors, that the owner of the company knew I had done work for, and were industry colleagues.
I’ve had 400 COURT ATTENDANCE AND ACTIONS FROM A BLACKMLAILING LAWYER, in writing, and the Chief Justice of SA drinks wine at the lawyers business premises. Judge Stein in SA Court ignored every court order and lied in her judgment as a mandatory safety reporter I don’t have to report safety. I had been reporting internally.
Again, whilst the applicant was not named, there were multiple references to judicial officers and entities associated with the applicant. In each of the three relevant respects, the undertakings were breached.
Item 29, published on or around 5 February 2025, comprised the following text, by way of a comment or re-post of an article written by Four Corners journalist Louise Milligan:
Well well well I’ve been speaking up about #corruption #by #SA #Supreme #Court #judges #covering #up #WHSAct laws- happy for criminals reported companies engaging in #illegal #activities #to #commit #manslaughter #on #truck #drivers pushing 28 days straight and zero safety!! (In evidence and written evidence, in transcripts – NO ONE in Alan Leslie trucking business knew #fatigue #laws-biggest killer in transport). Apparently judges don’t hold company directors responsible for zero training for employees now!! Corruption they are by laws!! …
Mr Alan Leslie is a director of the applicant. He gave evidence in the matter before Stein J, and his role and name features repeatedly in her reasons for judgment. The direct and damaging remarks coupled with the reference to Mr Leslie satisfies me that the post contravened the undertaking in each respect alleged.
By way of further example, item 33, published around the same time, is a further post in these terms:
SA Court Chief Justice was trying to force me to go for mental health examination WHAT because I reported one of the most criminally unsafe companies working for Santos, than ever seen in heavy vehicles.
Most dangerous place on earth for women and health and safety Whistleblower! SA Supreme Court has been involved in ‘legal intimidation’ tactics and judges should be prosecuted under WHS Act 2012 section 10 and section 5 Constitution.
Also around the same time, item 35 was published, stating, in part:
SA Court/NHVR/ASIC/SafeworkSA have covered up attempted WHS intentional manslaughter on TRUCKIES and failed to prosecute for unsafe crimes and whistleblowers detrimental harm costing taxpayers over $billion fraud and bribery for Santos, and they had already had death from pushing fatigue on truckies!! Alan Leslie has been committing violence on me for 5 years because I reported his NO SAFETY AT ALL
Alan Leslie & his company General Manger(s) didn’t even know truckie fatigue laws (apparently) RUNNING TRUCKING BUSINESS!! Intentionally trying to cause WHS MANSLAUGHTER on truckies! Fact. Flogging truckies 28 DAYS STRAIGHT zero days off! …
I would find that both posts contravened the undertakings in the three relevant respects. In respect of item 33, however, it is only alleged that the first undertaking was breached.
In respect of the other posts particularised by the applicant, I have applied the general approach indicated by my reasons in respect of the posts addressed above.
That is to say, in respect of the ‘reasonably likely to’ limb of the first undertaking and the second undertaking, I have generally given Ms Mysko every benefit of the doubt with respect to posts that do not so readily encourage or facilitate an identification of the applicant, albeit that, in respect to posts made against a background of other posts that would readily aid identification, there has been less scope to entertain a reasonable doubt. Where the posts have been more in the nature of generalised complaints and allegations of systemic corruption or wrongdoing, I have acknowledged in Ms Mysko’s favour a reasonable doubt as to whether the post is reasonably likely to have affected or conveyed a suggestion about the applicant, even though in most cases it is perfectly clear that serious allegations are being made about an unnamed contractor.
My findings as to contraventions are summarised in the table below. Any adverse findings are in each case made beyond reasonable doubt. Where the applicant did not press for a finding of contravention on a particular basis, the relevant cell appears shaded. In respect of posts that I conclude involved contraventions, I find that My Mysko had no ‘lawful justification or excuse’.
Item Page in exhibit Breach of U1 (calculated)? Breach of U1
(reasonably likely)?Breach of U2 (allege, represent or insinuate)? Lawful justification or excuse? 1 11 yes yes yes no 2 15 yes no 3 17 - 4 25 - 5 26-27 yes yes yes no 6 28 yes yes yes no 7 31 - - - 8 32 yes - - no 9 34 yes yes yes no 10 35 yes - - no 11 36 yes - - no 12 42 yes yes yes no 13 45 yes - - no 14 46 - 15 48 - 16 55 - 17 64-65 yes - - no 18 85 - 19 86 yes yes yes no 20 87 yes yes yes no 21 90 yes yes yes no 22 94 yes - no 23 98 yes - no 24 99 yes - - no 25 103 yes - - no 26 113 - 27 118 - 28 119 yes - no 29 122 yes yes yes no 30 130 yes no 31 131 yes no 32 135 yes yes yes no 33 141 yes yes no 34 144 yes yes no 35 146 yes yes yes no 36 152 yes no 37 155 - 38 163 - 39 167 yes no 40 169 - Consequence of contraventions
I have found that Ms Mysko published no fewer than 28 posts that involved contraventions of the undertakings she gave. In some cases, the posts involved contraventions of separate undertakings. A respectable argument can be made that there were more contraventions than that, but as indicated, I have adopted a cautious approach in identifying (and then ensuring that Ms Mysko has the benefit of) any reasonable doubt.
If I were to approach the matter by considering whether the course of conduct comprising the publication of the identified posts involved a contravention of the undertakings, I would find that each of the first and second undertakings was contravened.
It may be that Ms Mysko believed that, by not naming the applicant, she would not be contravening the undertakings. That does not substantially detract from the deliberate and culpable nature of the conduct. Many of the posts which include allegations of corruption on the part of specific judicial officers might also be viewed as acts of contempt, but Ms Mysko has not been charged with contempt in respect of those acts and I will exclude that possibility from my consideration of the appropriate consequence that should result from the numerous contraventions by the applicant of her undertakings.
Prima facie, the appropriate response to repeated contraventions of the undertakings by reason of which the Court suspended Ms Mysko’s committal for four weeks is to cancel or revoke the suspension and to order that Ms Mysko be committed to a correctional institution for four weeks.
Proceeding by analogy with the approach that a Court takes when considering the consequences of a breach of bond in respect of a suspended sentence, I have considered whether, having regard to the nature of the contraventions and any mitigating circumstances, there would a relevant disproportion if Ms Mysko were required to serve a term of imprisonment of four weeks.[20] The problem for Ms Mysko is that, on one view, the contraventions of the undertakings are more serious, and they are certainly more extensive, than the conduct in respect of which the suspended term of committal was thought appropriate.
[20] cf. R v Smith [2014] SASCFC 98 at [21]-[22], [25] (Kourakis CJ, Vanstone and Blue JJ agreeing).
That being said, the Court retains a discretion to consider whether, having regard to the purposes sought to be served by the suspension of the term of committal in the first place, there is a more appropriate consequence than the imposition of a four week term of imprisonment.
I have not been provided with any admissible evidence of any mental health difficulties in respect of Ms Mysko, but, meaning her no disrespect, it is apparent even without such evidence that she has an unhealthy fixation with the applicant from which she has found it very difficult to move on.
The applicant informed the Court that, prior to the substantive hearing, Ms Mysko deleted her ‘LinkedIn’ account. It was an agreed fact that the posts described above were not accessible by 30 June 2025 and remain inaccessible. That is to Ms Mysko’s credit, but it remains of concern that this only occurred after a warrant of apprehension was issued.
There is, as the applicant’s counsel acknowledged, a risk that the more severe the response to Ms Mysko’s conduct, the more difficult she might find it to refrain from engaging in the same behaviour again. It was with that in mind that the applicant (fairly and properly) invited the Court to consider exercising a degree of leniency if Ms Mysko were to undertake, for example, to engage in counselling directed towards enabling her to move on from the issues that have pre-occupied her.
Ms Mysko has not availed herself of that opportunity despite having been given a period of some weeks to reflect on the approach that she would take after that possibility was communicated in the course of the hearing. Nor has she sought to give the applicant or the Court greater comfort by proffering more wide ranging undertakings than those given earlier.
Instead, as the brief summary earlier given reveals, Ms Mysko has sent to the Court an email that represents an unfortunate ‘doubling down’ on her allegations against the applicant, its lawyers and others.
I agree that there is a risk that requiring Ms Mysko to serve the term of imprisonment imposed but suspended by the Chief Justice will entrench rather than specifically deter the kind of thinking and behaviour that Ms Mysko has engaged in.
Against that, however, the Court cannot allow its orders to be flouted, nor can it reward defiance by failing to deal with misconduct out of a concern that it may lead to Ms Mysko ramping up her campaign.
In my view, the most lenience that can be afforded to Ms Mysko in recognition of the fact she has deleted her ‘LinkedIn’ account and is, in all likelihood, suffering from a genuine difficulty in controlling her conduct, is to require that she serve a period of imprisonment of at least two weeks. A term of imprisonment less than that would, in my view, allow the administration of justice to be brought into disrepute.
I would therefore set aside the order suspending the commitment of Ms Mysko to a term of imprisonment of four weeks. I would order that she be imprisoned for a period of four weeks but that two weeks of that period be suspended subject to her compliance for a period of one year with the undertakings given by her, and by which she remains bound.
Whilst this approach may be viewed as merficul in the extreme, my judgment is that it carries a greater prospect of securing Ms Mysko’s compliance with the undertakings (and deterring any future contraventions of Court orders) than would requiring Ms Mysko to serve a four week term of imprisonment.
Costs application
The applicant seeks its costs of the contempt proceedings, including on an indemnity basis. The provisions of the Uniform Civil Rules 2020 (SA) (‘UCRs’) that deal with contempt do not make any specific provision with respect to the costs of contempt proceedings. Undoubtedly the Court has power to award costs of the contempt proceedings. Indeed, whilst there is no rule, and the Court retains its discretion with respect to costs, courts have frequently ordered indemnity costs against a contemnor in favour of the party who has had to resort to contempt of court to enforce their rights.[21] The rationale is that such a party should not be left out of pocket.[22]
[21] See the authorities referred to in Dal Pont, Law of Costs ([2021, 5th ed) at [16.72] and Rolph, Contempt (2023) at 818.
[22] National Australia Bank Ltd v Juric (No 2) [2001] VSC 398 at [70] (Gillard J).
Although an award of costs is not designed to be punitive, the Court has, in these proceedings, found the applicant to have engaged in wrongful conduct in respect of and during legal proceedings. She has also conducted her defence of these proceedings in a haphazard and inefficient way that has likely made the proceedings more costly than they ought to have been.
This is an appropriate case in which to award the applicant its costs on an indemnity basis in respect of these proceedings. I decline, however, to make an order in respect of the part of the earlier proceedings in which the applicant sought leave to formulate a charge of contempt. In circumstances where such an award is not encompassed by the terms of the interlocutory application, it is preferable that if those costs are to be pursued, that be by application in the other proceedings.
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