FEDERAL COURT OF AUSTRALIA
Ferguson v Dallow (No 5) [2021] FCA 698
File number(s): TAD 31 of 2020 Judgment of: O'CALLAGHAN J Date of judgment: 28 June 2021 Catchwords: CONTEMPT OF COURT – sentencing – where respondent found guilty of four charges of contempt of court, including one of scandalising the court – whether respondent’s extensive criminal record for offences other than contempt relevant to sentencing – R v Giscombe (1984) 79 Cr App R 79 considered – respondent sentenced to immediate term of imprisonment Legislation: Surrogacy Act 2012 (Tas) Cases cited: Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd (2017) 94 NSWLR 777
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Competition and Consumer Commission v Levi (No 3) [2008] FCA 1586; ATPR ¶42-257
Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; 71 ACSR 279
Attorney-General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405
Barbaro v The Queen (2014) 253 CLR 58
Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90
Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494
Markovic v The Queen (2010) 30 VR 589
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Edwards (1996) 90 A Crim R 510
R v Giscombe (1984) 79 Cr App R 79
R v Vasiliou (No 2) [2012] VSC 242
Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319
Victoria International Container Terminal Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2018] VSC 794; 285 IR 28
Division: General Division Registry: Tasmania National Practice Area: Other Federal Jurisdiction Number of paragraphs: 57 Date of hearing: 24 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:
28 JUNE 2021
THE COURT ORDERS THAT:
1.On the charge of contempt in the statement of charge dated 8 December 2020, in respect of which the respondent was adjudged guilty on 5 March 2021, the following sentence of imprisonment be imposed on the respondent: 4 months.
2.On the charge of contempt in the statement of charge dated 18 December 2020, in respect of which the respondent was adjudged guilty on 5 March 2021, the following sentence of imprisonment be imposed on the respondent: 1 month.
3.On the two charges of contempt in the amended statement of charge dated 14 April 2021, in respect of which the respondent was adjudged guilty on 17 May 2021, the…
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- Ferguson v Dallow (No 5) [2021] FCA 698
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- [2021] FCA 698
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CaseChat Overview and Summary
The court held that when determining a penalty for contempt, the relevant history of the offender includes only other findings of contempt. It should not consider prior convictions of another kind, except for convictions for offences similar to contempt. The court relied on several authorities to support this position, including Australian Competition and Consumer Commission v Levi (No 3), R v Vasiliou (No 2), Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2), Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd, R v Murray, and Victoria International Container Terminal Ltd v Construction, Forestry, Maritime, Mining and Energy Union. The court found that each of the contempts was deliberate and serious, and as such, an immediate and substantial period of imprisonment was the appropriate penalty.
The court sentenced Dallow to a total term of imprisonment of 9 months, dating from 28 June 2021 to 27 March 2022, and ordered him to pay the applicant's costs on an indemnity basis. The court also issued a warrant for Dallow's committal to prison.
Orders
Orders of the court
1. On the charge of contempt in the statement of charge dated 8 December 2020, in respect of which the respondent was adjudged guilty on 5 March 2021, the following sentence of imprisonment be imposed on the respondent: 4 months.
2. On the charge of contempt in the statement of charge dated 18 December 2020, in respect of which the respondent was adjudged guilty on 5 March 2021, the following sentence of imprisonment be imposed on the respondent: 1 month.
3. On the two charges of contempt in the amended statement of charge dated 14 April 2021, in respect of which the respondent was adjudged guilty on 17 May 2021, the following sentences of imprisonment be imposed on the respondent:
(a) On the first charge: 4 months.
(b) On the second charge: 4 months.
4. The sentences referred to in order 3 be served concurrently.
5. The respondent serve a term of imprisonment of 9 months in total, dating from 28 June 2021 to 27 March 2022.
6. A warrant issue for the respondent’s committal to prison.
7. The respondent pay the applicant’s costs in respect of each of the contempt applications on an indemnity basis.
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
I do not accept those propositions. There is, with respect, no wider position contained in Kazal. As a general principle, when determining a penalty for contempt, the relevant history of the offender includes, and is limited to, other findings of contempt. In fixing a penalty for contempt the court should take into account only other findings of contempt and should treat as irrelevant the existence of prior convictions of another kind, except for convictions for offences similar to contempt. See Australian Competition and Consumer Commission v Levi (No 3) [2008] FCA 1586; ATPR ¶42-257 at 49,611-12 [101]-[110] (McKerracher J); R v Vasiliou (No 2) [2012] VSC 242 at [8] (Beach J); Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134; 241 IR 288 at 354‑5 [187] (Cavanough J); Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd (2017) 94 NSWLR 777 at 787 [33], 790 [45] (Black J); R v Murray [2018] VSC 133 at [44] (Riordan J); Victoria International Container Terminal Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2018] VSC 794; 285 IR 28 at 36-7 [19]-[20] (McDonald J).Consideration The applicant, quite properly, did not seek to make any submission as to the specific penalty to be imposed upon Mr Dallow in respect of the four contempts. See Barbaro v The Queen (2014) 253 CLR 58 at 66 [6]-[7] (French CJ, Hayne, Kiefel and Bell JJ). The applicant’s submissions were directed to the proposition that, in the circumstances of this case, an immediate and substantial period of imprisonment is the only appropriate penalty.Seriousness Each of the contempts was deliberate and serious, and self-evidently so. As to the first contempt, which concerned the publication of the third video, I said this in Ferguson v Dallow (No 3) [2021] FCA 177 at [70]-[73]:70The publication of the third video was, in my view, beyond reasonable doubt, an intentional breach of the orders of Kerr J.71I do not accept Mr Dallow’s assertion that he did not intend to breach the order of Kerr J. He well knew that, under the guise of giving an ‘update’ about this proceeding, he was repeating and republishing the same very serious allegations made in the first and second videos. This was deliberate, and not a consequence either of misunderstanding Kerr J’s orders or an accident. 72Mr Dallow conceded that he had read and understood the order, and despite what he said at one point about only wanting to explain what was happening to him on a ‘personal level’ and ‘to vent’, he knew that Kerr J’s orders prohibited him from republishing the substance of the allegations against the applicant. He knew that because, quite apart from anything else, he had: (i) read and understood the order, and knew that ‘the information received in the first and second video was not to be reissued or re-spoken about’; and (ii) received complaints from the applicant’s solicitors on 2 and 3 December about other material (tweets and emails) that he had posted on Twitter and his website repeating the allegations, and subsequently removed that material. 73The breach can only have been a deliberate one. As Mr Dallow agreed in cross-examination, the preparation of the third video, like the other videos, required him to take a number of deliberate steps, including deciding what the video would be about, writing the script, selecting graphics and video effects, selecting sound effects, and working out a running sheet or plan.(Cross-references omitted.)