Ferguson v Dallow (No 3)

Case [2021] FCA 177

FEDERAL COURT OF AUSTRALIA

Ferguson v Dallow (No 3) [2021] FCA 177

File number: TAD 31 of 2020
Judgment of: O'CALLAGHAN J
Date of judgment: 5 March 2021
Catchwords: CONTEMPT OF COURT – whether respondent guilty of two charges of contempt of court
Legislation:

Federal Court of Australia Act 1976 (Cth) s 31(1)

Judiciary Act 1903 (Cth) s 24

Federal Court Rules2011 (Cth) r 41.07(2)
Cases cited:

Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Australian Competition and Consumer Commission v Hughes [2001] FCA 38; (2001) ATPR ¶41-807

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375

Ferguson v Dallow (No 2) [2021] FCA 152

Hurd v Zomojo Pty Ltd [2015] FCAFC 148

Re Colina; Ex parte Torney (1999) 200 CLR 386

Witham v Holloway (1995) 183 CLR 525
Division: General Division
Registry: Tasmania
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 84
Date of hearing: 4-5 February 2021
Counsel for the Applicant: Mr C Gunson SC with Ms JE Sawyer
Solicitor for the Applicant: Page Seager
Counsel for the First Respondent: The first respondent appeared in person
Counsel for the Second Respondent: The second respondent did not appear

ORDERS

TAD 31 of 2020
BETWEEN:

MICHAEL DARREL JOSEPH FERGUSON

Applicant
AND:

KANE DALLOW

First Respondent

GOOGLE INC (ABN 34 118 972 998)

Second Respondent

ORDER MADE BY:

O'CALLAGHAN J

DATE OF ORDER:

5 MARCH 2021

THE COURT DECLARES THAT:

1.Kane Scott Dallow is guilty of contempt of court, in that, having been personally served on 2 December 2020 with the applicant’s amended originating application, orders made by Kerr J on 2 December 2020 (2 December orders), and the court’s reasons for making the 2 December orders, such orders containing in order 2 a requirement that he be restrained from publishing, republishing, distributing, disseminating or making available for viewing:

(a)the video entitled “Behind the Classroom Door” (first video) published on the website (website) and on the online platform (YouTube);

(b)the video entitled “Update Behind the Classroom Door” (second video) published on the website and YouTube; and

(c)the allegations made against the applicant in the first and second videos

for a period of 7 days commencing immediately upon the applicant’s amended originating application, the 2 December orders and the court’s reasons having been served upon him (the period), he intentionally disobeyed the 2 December orders by publishing within the period, namely on or about 7 December 2020, a video entitled “Legal Update” (third video) on the website and YouTube, such third video publishing, republishing, distributing, disseminating or making available for viewing the allegations made against the applicant in the first and second videos.

2.Kane Scott Dallow is guilty of contempt of court, in that having been present in the Federal Court of Australia at Hobart on 9 December 2020…

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AGLC
Ferguson v Dallow (No 3) [2021] FCA 177
Case
[2021] FCA 177
Decision Date

CaseChat Overview and Summary

The case of Ferguson v Dallow (No 3) involved a dispute concerning contempt of court charges against the respondent, Mr Dallow. The applicant sought to hold Mr Dallow in contempt of court for breaching two separate court orders. The matter was heard in the Federal Court of Australia. The court was required to determine whether Mr Dallow had deliberately and voluntarily breached the terms of two court orders, thereby committing contempt of court. This required consideration of whether the orders were clear, unambiguous, and capable of compliance, whether Mr Dallow was served with the orders or had knowledge of them, and whether he deliberately and voluntarily breached the orders.

The court examined the evidence presented, including Mr Dallow's oral evidence and affidavits relied upon by the applicant. The court concluded that the orders made by the primary judges were clear, unambiguous, and capable of compliance. It was established that Mr Dallow was served with the orders or had knowledge of them. However, the court found that the evidence did not establish beyond reasonable doubt that Mr Dallow deliberately and voluntarily breached the terms of the orders. The court considered Mr Dallow's evidence and submissions, as well as the orders themselves, in reaching this conclusion.

The court found that Mr Dallow was not guilty of the two charges of contempt of court. The court held that the evidence did not establish beyond reasonable doubt that Mr Dallow deliberately and voluntarily breached the terms of the orders. The court noted that while Mr Dallow had knowledge of the orders and was served with them, the evidence did not demonstrate that he deliberately and voluntarily breached them. The court held that the applicant had not made out the charges against Mr Dallow. The hearing of the interlocutory applications was held over for a hearing on penalty and costs on a date to be fixed.

Orders

Orders of the court

3. The hearing of the interlocutory applications dated 8 and 18 December 2020 be held over for a hearing on penalty and costs on a date to be fixed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Dallow gave oral evidence in his defence. He filed, but did not refer to or rely upon, an affidavit that he swore on 1 February 2021. I have read the affidavit, but its relevance to the two charges is unclear. Given that, and that Mr Dallow did not refer to it, I have put it to one side. The applicant’s evidence The evidence contained in the affidavits relied upon by the applicant can be summarised as follows. On 29 November 2020, Mr Dallow uploaded a video to YouTube and his website (the first video). The video contained a purported interview between him and an anonymous woman, who made serious allegations against the applicant. Mr Dallow also published two emails on his website around the same time. The first was an email that he had sent to the Premier of Tasmania about the allegations against the applicant in the first video. The second was the response he received from the Premier’s office. On 1 December 2020, YouTube “geo-blocked” the first video in Australia, meaning that it was no longer possible for viewers in Australia to watch the video on YouTube (at least, not without a virtual private network or something similar). The video remained accessible on Mr Dallow’s website. Later that day, Mr Dallow released a second video on YouTube, and on his website (the second video). It was said to be an “update” to the first video. In it, Mr Dallow repeated the allegations made in the first video. He also said that he would be conducting further interviews and presenting additional allegations in the future. He later posted a tweet that promoted the first and second videos, referred to the allegations they contained, and included a link to his website where the videos were available for viewing. On 2 December, following an ex parte hearing, Kerr J granted the applicant an interim injunction in the following terms:(2)Upon the usual undertaking of the Applicant by his counsel and his further undertaking that by no later than 4:00pm on 8 December 2020 he will file a Statement of Claim and will serve that Statement of Claim on the First Respondent immediately upon the First Respondent providing an address for service, the First Respondent be restrained from publishing, republishing, distributing, disseminating or making available for viewing:(a)the video entitled ‘Behind the Classroom Door’ (First Video) published on the website (Website) and on the online platform (YouTube);(b)the video entitled ‘Update Behind the Classroom Door’ (Second Video) published on the Website and YouTube; and (c)the allegations made against the Applicant in the First and Second Videosfor a period of 7 days commencing immediately upon the Applicant’s amended Originating Application, these Orders and the Court’s reasons having been served upon him (the Period).(3)For the purposes of Order 2, the First Respondent shall remove both the First Video and the Second Video from the Website and YouTube within two hours of these Orders having been served upon him or, if the First Respondent cannot comply in that timeframe after making all reasonable efforts, he must remove both Videos from the Website and YouTube as soon thereafter as he is reasonably able to and ensure that neither can be accessed by such means during the Period.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In order to find that Mr Dallow is guilty of contempt, the court must be satisfied beyond reasonable doubt of the following five matters:(1)an order was made by the court;(2)the terms of the order are clear, unambiguous and capable of compliance;(3)the order was served on the alleged contemnor or excused in the circumstances, or service was dispensed with pursuant to the rules of court;(4)the alleged contemnor has knowledge of the terms of the order; and(5)the alleged contemnor deliberately and voluntarily breached the terms of the order.See, by way of example only, Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 at [31]-[32] (Gillard J); Hurd v Zomojo Pty Ltd [2015] FCAFC 148 at [28] (Besanko and Gilmour JJ), [164] (Beach J, agreeing).Consideration The evidence establishes beyond reasonable doubt, and Mr Dallow did not dispute, that the orders of Kerr J and White J were made, that their terms are clear, unambiguous and capable of compliance, that they were served on Mr Dallow, and that Mr Dallow had knowledge of their terms. On the question of service, in addition to personal service of Kerr J’s orders on Mr Dallow, which occurred on 2 December (see [20] above), the applicant also relies on the fact that Mr Dallow was present in court when White J made his orders, and that, by virtue of r 41.07(2) of the Federal Court Rules2011 (Cth), he is thus deemed to have been served with them. As to knowledge of the orders, Mr Dallow said the following in cross-examination about his knowledge of the order of Kerr J:Now, when you read the order, you read that part that’s described as a penal notice?-‑‑Yes, that’s correct.The bit in bold?-‑-Yes.That told you that if you disobey the orders, you’re liable to imprisonment, sequestration of property or other punishment?-‑-Yes, that’s correct.Reading that penal notice, you understood that it was important that you complied with the order?-‑-That’s correct.And knowing that you were at risk of imprisonment if you breached the order, you carefully read the order to determine what you could and could not do, correct?-‑‑Correct.And I suggest to you that you read the entirety of the order?-‑-That’s correct. As to the order of White J, Mr Dallow said the following in cross-examination about his knowledge of it:Now, in relation to the second charge, you were in court when White J made the orders?-‑‑Yes. That’s correct.You were involved in discussion with White J about what the terms of the orders should be?-‑‑Yes.You understood the order at that time?-‑-Not completely. No. Okay. You understood that White J proposed to make an order that the third video be removed from your website and YouTube within two hours?-‑-Yes.And you knew that you were in Hobart at that time and that you lived in Launceston?-‑‑Yes.You knew that it would take you longer than two hours to get from court to your home in Launceston ‑ ‑ ‑?-‑-Yes.- - - to access your computer?-‑-Yes.