Ferguson v Dallow (No 4)

Case [2021] FCA 513

FEDERAL COURT OF AUSTRALIA

Ferguson v Dallow (No 4) [2021] FCA 513

File number: TAD 31 of 2020
Judgment of: O'CALLAGHAN J
Date of judgment: 17 May 2021
Catchwords: CONTEMPT OF COURT – whether respondent guilty of two further charges of contempt of court – whether publication of online video constituted intentional disobedience of permanent injunction issued in defamation proceeding – whether by publishing video respondent guilty of scandalising court and lowering its authority – where video contains assertion court is not independent of executive and parliamentary branches of government and acts to protect politicians and cover up allegations of misconduct
Legislation:

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

Judiciary Act 1903 (Cth) s 24

Constitution Act 1934 (Tas) s 8A
Cases cited:

Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887

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

Gallagher v Durack [1982] FCA 280; 44 ALR 477

Gallagher v Durack (1983) 152 CLR 238

John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104

Re Brookfield (1918) 18 SR (NSW) 479

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

R v Dunbabin; Ex parte Williams (1935) 53 CLR 434

Viner v Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] FCA 42; 2 IR 177

Witham v Holloway (1995) 183 CLR 525
Division: General Division
Registry: Tasmania
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 44
Date of hearing: 10 May 2021
Counsel for the Applicant: Mr C Gunson SC with Ms JE Sawyer
Solicitor for the Applicant: Page Seager
Counsel for the Respondent: The respondent appeared in person

ORDERS

TAD 31 of 2020
BETWEEN:

MICHAEL DARREL JOSEPH FERGUSON

Applicant
AND:

KANE DALLOW

Respondent

ORDER MADE BY:

O'CALLAGHAN J

DATE OF ORDER:

17 MAY 2021

THE COURT DECLARES THAT:

1.Kane Scott Dallow is guilty of contempt of court, in that, having been personally present in court at the Federal Court of Australia at Hobart on 19 February 2021 when the Honourable Justice White was sitting in the Federal Court of Australia in Adelaide via audio-visual link to the Federal Court of Australia at Hobart, and having been personally served with the orders made by the Honourable Justice White on 19 February 2021 (Orders) on 24 February 2021 at approximately 10:33 am, such Orders containing in Order 1 a requirement that he “be permanently 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 (the website) and on the online platform (YouTube);

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

(c)the video entitled ‘Legal Update’ (third video) published on the website and YouTube;

(d)the allegations made against the applicant in the first video, the second video or…

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AGLC
Ferguson v Dallow (No 4) [2021] FCA 513
Case
[2021] FCA 513
Decision Date

CaseChat Overview and Summary

The matter before the court was an application by Mr Ferguson, the applicant, seeking a declaration that Mr Dallow, the respondent, be found guilty of further charges of contempt of court. The dispute arose out of a defamation proceeding where a permanent injunction was issued. Mr Dallow was alleged to have intentionally disobeyed the injunction by publishing an online video. The video contained assertions that the court was not independent of the executive and parliamentary branches of government and acted to protect politicians and cover up allegations of misconduct. The court was required to determine whether Mr Dallow's actions amounted to contempt of court under the relevant legislation.

The court considered whether the publication of the video constituted intentional disobedience of the permanent injunction and whether it amounted to scandalising the court and lowering its authority. The court found that the video contained assertions that the court was not independent and acted to protect politicians, which was a clear attempt to undermine the authority of the court. The court held that the respondent's actions were intentional and amounted to contempt of court. The court also found that the publication of the video was intended to interfere with the administration of justice and lower the authority of the court in the eyes of the public.

The court made a declaration that Mr Dallow was guilty of two further charges of contempt of court. The court listed the applicant's interlocutory application for a hearing on penalty and costs on 24 May 2021 at 10:15 am. The court did not make any orders for penalty or costs at this stage, as it was to be determined at the hearing. The court's decision was based on the evidence presented and the relevant legislation. The court emphasised the importance of upholding the authority of the court and protecting the administration of justice.

Orders

Orders of the court

3. The applicant’s interlocutory application dated 12 March 2021 be listed for a hearing on penalty and costs on 24 May 2021 at 10:15 am.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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