Express Cargo Services Pty Ltd v Mysko

[2024] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

EXPRESS CARGO SERVICES PTY LTD v MYSKO

[2024] SASC 112

Judgment of the Honourable Chief Justice Kourakis  (ex tempore)

COURTS AND JUDGES - CONTEMPT - PARTICULAR CONTEMPTS - DISOBEDIENCE OF ORDERS OF COURT - INJUNCTIONS

COURTS AND JUDGES - CONTEMPT - PUNISHMENT AND ENFORCEMENT - PUNISHMENT - ORDER - NATURE OF PUNISHMENT - IMPRISONMENT

This was the imposition of punishment for two counts of contempt of court.

The respondent was found on 17 May 2023 to have committed two acts of contempt of court. Those acts consisted, generally, of the respondent disobeying the terms of injunctions enjoining her both from disparaging the applicant to its principal clients and from disclosing information gathered by the respondent in the course of her former employment by the applicant. The question of the appropriate punishment to be imposed for the acts of contempt found to have been committed thus fell for determination.

Held, committing the respondent to a correctional institution for a term of four weeks but suspending the term of committal upon the respondent giving certain undertakings to the Court:

1.      The charges of contempt found to have been committed by the respondent amounted to more than a mere civil contempt occasioned by non-adherence to curial orders. The deliberateness and hubris with which the respondent challenged the authority of the Court, her previous lack of contrition, and the continuation of the acts of contempt indicated that commitment to a correctional institution was the only appropriate punishment in the circumstances.

2.      The term of committal imposed against the respondent ought to be suspended, particularly in light of the respondent’s appreciation of the wrongfulness of her conduct and the support given to her by her family.

Joint Criminal Rules 2022 (SA) r 51.3; Uniform Civil Rules 2020 (SA) r 205.8, referred to.

EXPRESS CARGO SERVICES PTY LTD v MYSKO
[2024] SASC 112

Civil:   Application

1. KOURAKIS CJ:     The respondent, Ms Roxanne Mysko, was found by this Court to have committed two acts of contempt on 17 May 2023.[1] Those acts of contempt consisted of the respondent’s sending of emails to Ensign Energy Services Incorporated (“Ensign Energy”), the Canadian holding company of Ensign Australia Pty Ltd (“Ensign Australia”), a principal client of the applicant.[2] Prior to sending those communications, the respondent had been enjoined on 17 July 2020 by Judge Dart, until further order of the Court, from either making any contact with, or sending or forwarding any correspondence to, inter alios, any client of the applicant, including Ensign Australia.[3] The respondent intimating an intention to allege serious misconduct on the part of the applicant to, inter alios, members of Parliament, a wider injunction than that imposed by Judge Dart was imposed by Stein J on 24 December 2021.[4] The Second Order, by its terms, enjoined the respondent 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.[5]

   [1]    See Express Cargo Services Pty Ltd v Roxanne Mysko (Supreme Court of South Australia, Kourakis CJ, 17 May 2023) 2, 4.

   [2] See Affidavit of David Matthew Elix (sworn 8 November 2022), [3]-[14], [19]-[24].

   [3]    See FDN 14 in Proceedings No. CIV-20-001259 (the “First Order”).

   [4]    See FDN 92 in Proceedings No. CIV-20-001259 (the “Second Order”).

   [5]    Ibid.

2. In short, by a Summons for Contempt filed on 17 January 2023, the applicant alleged that the respondent: contravened the First Order by corresponding with Ensign Energy on 8 April 2022, in circumstances where it was likely that any such correspondence would be forwarded on to Ensign Australia; and contravened the Second Order by reason of the same correspondence, in circumstances where an attachment to the email to Ensign Energy consisted of an email from Ensign Australia, containing information gathered by the respondent in the course of her employment by the applicant and recording the respondent’s beliefs as to the nature of the applicant’s business.

3. At neither the initial hearing before Judge Dart, at which the applicant moved on an interlocutory application for permission to formulate a charge of contempt against the respondent, nor at the hearing of the matter before me, did the respondent deny corresponding with Ensign Energy in the manner alleged.[6] Indeed, as Ms Mysko recounted, such contraventions by the respondent were thought to be necessary in light of the respondent’s unabating concerns about the applicant’s supposed breaches of heavy vehicle safety legislation. Those explanations were rejected, and the applicant’s charges of contempt found to have been established, on the basis that they did not provide a reasonable excuse for breaching the relevant orders.[7]

   [6]    Express Cargo Services Pty Ltd v Roxanne Mysko (Supreme Court of South Australia, Judge Dart, 28 June 2022) 1; Express Cargo Services Pty Ltd v Roxanne Mysko (Supreme Court of South Australia, Kourakis CJ, 17 May 2023) 3.

   [7]    Express Cargo Services Pty Ltd v Roxanne Mysko (Supreme Court of South Australia, Kourakis CJ, 17 May 2023) 3.

4. By an email received by my Chambers on 8 August 2024, the respondent notified me that she intends to pursue an appeal against my findings that the charges of contempt formulated by the applicant had been made out. That may be so; but it provides no basis not to proceed with the imposition of sanctions for respondent’s contempt of this Court’s orders, especially in light of the many delays and adjournments brought about by the respondent’s conduct.

5. Ms Mysko did not appear at the proposed sentencing hearing on 14 August 2024. The Court issued a warrant for Ms Mysko’s apprehension, directing the arresting officers to bring her before the Court to be sentenced.

6. Ms Mysko informed me today that she was told that a warrant had been issued and that she made several attempts to answer the warrant by making enquiries and by attending at the Elizabeth Magistrates Court and at the Elizabeth Police Station on Friday. Ms Mysko tells me that neither the Court, nor the police station, found any record of the warrant.

7. Ms Mysko continued to make enquiries this week and, as a result of information she received, presented herself voluntarily at the Sir Samuel Way Building. My Chambers were notified and the matter has been called on.

8. I received submissions from the applicant. Understandably, the applicant’s concern is that there be no further breaches of the injunctions. It seeks a remedy that will ensure that. However, it has made no submissions against the suspension of any sentence that might be imposed if the conditions of the suspension include not engaging in any future conduct which will harm the applicant’s interests and that Ms Mysko take reasonable steps to take down any posts of that kind she has made.

   Contempt of Court

9. It is an aspect of the Court’s inherent jurisdiction, and indeed an incident of its constitutional mandate to ensure the proper administration of justice, to impose punishment for contempt of its orders, whether by way of a fine or by commitment to a correctional institution.[8] That jurisdiction exists by necessity, so that the adjudicative authority of the Court is not diminished or regarded by the public, the members of whom enjoy a right of access to, and the protection of, the courts, as merely suggestive or advisory.[9] In this regard, it has been said of curial orders that:

   … in the case of mandatory or prohibitory orders made by it, the sanction which the Court has in order to enforce its decisions is the power to punish for contempt. This is the way in which the Court preserves respect for its role and the rule of law. Without the enforcement of court orders the whole process of adjudication becomes a hollow exercise. If the losing party can defy the orders of the Court then such disobedience renders futile, in the perception of the community, the remedy secured by the successful party. Orders are not made simply to suggest or advise persons that they ought to keep to the law as proclaimed but to ensure that the law is carried out as determined by the decision pursuant to which the order is made. Defiance of court orders diminishes the authority of courts and removes the incentive of parties, if such conduct is left unpunished, to comply with the requirements of the courts.[10]

   [8]    See, eg, Ex parte Bellanto; Re Prior [1963] NSWR 1556, 1564 (Herron ACJ, Sugerman and Ferguson JJ); Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107 (Gibbs CJ, Mason, Wilson and Deane JJ); Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, 484-5 [147]-[149] (Kirby J); Phillis v Szenkovics (2001) 81 SASR 202, 214 [102] (Lander J).

   [9]    Cf David Rolph, Contempt (Federation Press, 2023) 520-1.

   [10]  Australian Competition and Consumer Commission v Hughes (2001) ATPR 41-807, 42,781-2 [15] (Tamberlin J), approved in Re Mycorp Pty Ltd [2014] NSWSC 899, [19] (Black J); Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2016] NSWSC 1309, [59] (Black J); Huang v Liao [2022] NSWSC 347, [30] (Black J); Registered Clubs Association of New South Wales v Stolz (No 4) [2022] FCA 994, [81] (Yates J).

10. Ordinarily, the deliberate and knowing breach of a curial order, an injunction, or an undertaking given to the Court is to be characterised as a civil contempt,[11] the justification being that the wrong occasioned by that breach is one that exists inter partes to the litigation only.[12] The purpose of the contempt proceeding is to coerce compliance with the order either by performing the acts mandated by the order of the Court or by desisting from the conduct enjoined. Where, however, such breach interferes with the administration of justice or is contumacious in nature it amounts to a criminal contempt. A deliberate decision flagrantly to subvert the authority of the Court by disobeying its orders, or a failure to abide by its orders which expressly challenges the authority or legitimacy of the Court’s authority, is a criminal contempt.[13]

    [11]  See, eg, Witham v Holloway (1995) 183 CLR 525, 530 (Brennan, Deane, Toohey and Gaudron JJ).

    [12]  See, eg, Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106 (Gibbs CJ, Mason, Wilson and Deane JJ).

    [13]  See, eg, Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, 489 (Barwick CJ); Witham v Holloway (1995) 183 CLR 525, 530 (Brennan, Deane, Toohey and Gaudron JJ); Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, [167] (Lindgren AJA); Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113, 132 [77] (White J); Moira Shire Council v Sidebottom Group Pty Ltd [2019] VSC 569, [12] (Forbes J).

11. It matters little whether contumacy or interference with the administration of justice is a more apt categorisation of the contempt.

12. In respect of civil and criminal contempt respectively, this Court is expressly empowered by r 205.8(2) of the Uniform Civil Rules 2020 (SA) and r 51.3(2) of the Joint Criminal Rules 2022 (SA) to punish contempt either by the imposition of a fine or by committing the contemnor to a correctional institution. That express conferral of power to imprison accompanies, and reflects, the Court’s inherent jurisdiction to order commitment to a correctional institution for a determinate or indeterminate period.[14] Similarly, the express power to fine a contemnor accompanies, and reflects, the Court’s inherent jurisdiction to impose a fine that is not, in the circumstances of the case, incommensurate with the contempt involved.[15]

    [14]  See, eg, La Trobe University v Robinson [1972] VR 883, 900-1 (McInerney J); Wood v Galea (1995) 79 A Crim R 567, 573 (Hunt CJ at CL); Anderson v EVA20 [2022] FCA 1165, [39] (Wigney J).

    [15]  See, eg, Smith v The Queen (1991) 25 NSWLR 1, 13-20 (Kirby P).

13. While, in some respects — including, for instance, the applicable standard of proof — the distinction between criminal contempt and civil contempt is of no great import,[16] whether the Court is presented with a criminal or civil contempt is relevant to, inter alia, the determination of the appropriate punishment therefor.[17]

    [16]  See, eg, Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ). But see David Rolph, Contempt (Federation Press, 2023) Ch 2.

    [17]  See generally Re Barrell Enterprises [1973] 1 WLR 19, 27 (Russell LJ for the Court); David Rolph, Contempt (Federation Press, 2023) 808.

14. In Woods v Staunton (No 5) (1996) 86 A Crim R 183, at 185, Dunford J identified ten considerations that ought to inform the punishment imposed by the Court for contempt in the nature of a failure to attend and give evidence, namely:

    1.the seriousness of the contempt proved;

    2.whether the contemnor was aware of the consequences to himself of what he did;

    3.the actual consequences of the contempt on the relevant trial or inquiry;

    4.whether the contempt was committed in the context of serious crime;

    5.the reason for the contempt;

    6.whether the contemnor has received any benefit by indicating an intention to give evidence;

    7.whether there has been an apology or public expression of contrition;

    8.the character and antecedents of the contemnor;

    9.general and personal deterrence; and

    10.denuncination of the contempt.

15. In a case where the charges of contempt involve the knowing and deliberate contravention of successive injunctions, matters to which the Court may have regard in deciding upon the appropriate punishment include: the seriousness of the contempt; whether the contempt was the result of deliberate action or inaction on the part of the contemnor; the reason proffered for the contempt; whether the contemnor is contrite or has purged his or her contempt; the character and antecedents of the contemnor; general and specific deterrence; and the need to denounce the contempt, and to attach the Court’s sanction to breaches of its prohibitive orders.[18]

    [18]  Cf Registrar of Supreme Court of South Australia v Advertiser Newspapers Pty Ltd [2015] SASC 157, [23] (Blue J).

16. 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;[19] but the circumstances surrounding the respondent’s contempt go further than this.[20]

    [19]  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).

    [20]  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).

17. 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.

18. 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.

19. 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. If actually served and not suspended, the penalty is primarily punitive and is warranted having regard to the nature and effect of Ms Mysko’s contempt. However, the imposition of imprisonment is also preventative of future breaches. That term not being one with respect to a sentence imposed pursuant to the Sentencing Act 2017 (SA), it remains open to the respondent, should that term ever actually be served in custody, to seek to vary the length of it.[21]

    [21]  See, eg, Nicholls v DPP (SA) (1993) 61 SASR 31, 63 (Mullighan J). Cf Corry v NHB Enterprises Pty Ltd [2023] NSWCA 162, [35] (Meagher JA, Leeming and White JJA agreeing).

20. Both in the Court’s inherent jurisdiction,[22] and as expressly conferred by r 205.8(5)(b) of the Uniform Civil Rules 2020 (SA) and r 51.3(5)(b) of the Joint Criminal Rules 2022 (SA), the Court has power to suspend imprisonment for contempt upon the respondent giving a satisfactory undertaking to observe any conditions determined by the Court, and to appear for the determination of penalty upon a breach of those conditions. A penalty of that kind is primarily coercive, but, if breached, and the imprisonment is effectuated, will, of course, also be punitive.

    [22]  See, eg, Lee v Walker [1985] QB 1191, 1200 (Cumming-Bruce LJ). Cf He v Sun (2021) 104 NSWLR 518, 531-2 [39]-[40] (Bell P, Gleeson JA agreeing).

21. By reason of the submissions and explanations given to me by Ms Mysko this morning, I will suspend that period of imprisonment.

22. 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.

23. 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.

24. 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.