Gallagher v Destiny Publications Pty Ltd - [2015] WASC 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GALLAGHER -v- DESTINY PUBLICATIONS PTY LTD [2015] WASC 40

CORAM: KENNETH MARTIN J

HEARD: 11 NOVEMBER 2014

DELIVERED : 4 FEBRUARY 2015

FILE NO/S: CIV 1636 of 2013

BETWEEN: MICHAEL GALLAGHER
First Plaintiff
LILLIAN MAHER
Second Plaintiff
AND
DESTINY PUBLICATIONS PTY LTD
First Defendant
GERASIMAS GEORGATOS
Second Defendant

Catchwords:

Criminal law - Contempt - Contempt other than in the face of the Court - Emails to Judge's Associate not forwarded to other parties - Emails containing arguably defamatory imputations - Whether tending to interfere with due administration of justice - Emails to solicitors for opposing parties - Whether constituting a threat to breach an undertaking to Court - Whether constituting a threat to influence plaintiffs not to proceed with substantive matter

Procedure - Contempt of Court application made by way of notice of motion - Whether application should have been made by originating motion - Whether prudent for case manager to determine contempt application

Legislation:

Rules of the Supreme Court 1971 (WA), O 55 r 4

Result:

Judgment of acquittal

Category: A

Representation:

Counsel:

First Plaintiff                :     Mr M L Bennett
Second Plaintiff            :     Mr M L Bennett
First Defendant             :     No appearance
Second Defendant         :     Mr S Levitt

Solicitors:

First Plaintiff                :     Bennett & Co
Second Plaintiff            :     Bennett & Co
First Defendant             :     No appearance
Second Defendant         :     Levitt Robinson

Case(s) referred to in judgment(s):

Attorney‑General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695
Attorney‑General (UK) v Newspaper Publishing PLC [1988] Ch 333
Attorney-General (UK) v Times Newspaper Ltd [1974] AC 273
Bhagat v Global Custodians Ltd [2002] NSWCA 160
Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195
European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Harkianakis v Skalkos (1997) 42 NSWLR 22
Marriner v Smorgon [1989] VR 485
Prefumo v Bradley [No 2] [2012] WASC 76
R v Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248
R v Ingrams; Ex parte Goldsmith [1977] Crim LR 40
Re Dyce Sombre (1849) 9 Mac & G 115; (1849) 41 ER 1207
Re Glew; Ex parte The Hon Michael Mischin MLC, Attorney General (WA) [2014] WASC 107
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Lonrho PLC [1990] 2 AC 154
Registrar of the Court of Appeal v Collins (1982) 1 NSWLR 682
Resolute Ltd v Warnes [2000] WASCA 359
Resolute Ltd v Warnes [2001] WASCA 4
Suda Ltd v Sims [2014] WASC 376
Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 298
The Prothonotary v Collins (1984) 2 NSWLR 549
Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104
Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150
Y v W [2007] NSWCA 329; (2007) 70 NSWLR 377

KENNETH MARTIN J: I am dealing with the re‑amended notice of motion of the plaintiffs filed on 4 July 2014 seeking the committal of the second defendant Mr Gerasimas Georgatos (Mr Georgatos) for contempt of court pursuant to O 55 r 4 of the Rules of the Supreme Court 1971 (WA) (RSC).
Relevantly the re‑amended notice of motion of the plaintiffs seeks that Mr Georgatos be punished for contempt of court 'for interfering with the due administration of justice in the conduct of CIV 1636 of 2013'. The grounds for the application (which have been amended since the plaintiffs' first filed the motion seeking that Mr Georgatos be committed for contempt on 16 June 2014) now provide (relevantly):
4.Pursuant to Order 55 rule 4 of the Rules of this Honourable Court and on the grounds set out in the affidavit of Nicola Emma Randall affirmed 16 June 2014 the Plaintiffs contend that the Second Defendant has committed contempt of this Honourable Court by interfering with the due administration of justice in the conduct of CIV 1636 of 2013:
4.1by sending at 3.07 pm on 15 June 2014 an email to Martin Bennett, Jonelle Di Lena, Tanya Onofaro and Lauren Separovich copied to Robert Clarke and John Rowsthorne an email that included the following:
…
[I will set out the terms of the relevant email in due course]
…
which in the circumstances constituted a threat to the Plaintiffs that if they proceeded with the within litigation the Second Defendant would breach the undertaking given orally to the Supreme Court on 16 August 2013 (Transcript page 17 attached) by publishing (that is making known or communicating to third parties or communicating to third parties) matters of and concerning the Plaintiffs with the intention of thereby dissuading the Plaintiffs from continuing the within litigation.
4.2by communication directly to the Associate to the Honourable Justice K Martin by emails dated 6 June 2014 at 11.39am and 6 June 2014 at 11.57am with deliberate intent that the communications be read by the Honourable Justice K Martin (such intent to be inferred from the expressed terms of the emails) and by so communicating with the Court, committed a contempt of Court by interfering with the integrity of the judicial process and eroding the impartiality of the court by attempting to influence the Court's decision.
The reference to transcript (ts) 17 in parentheses within par 4.1 is a reference to a page of the transcript of proceedings heard before me on 16 August 2013 at which application Mr Georgatos appeared in person, unrepresented by either solicitors or counsel. The relevant extract from what he is recorded as having said to the Court is as follows:
MR GEORGATOS: That need not be said. ..., but I do give that undertaking with - that I - unless I come back to court and everyone argues their case, then I, personally, and nor will anyone in terms of agency through me, publish anything through me about Ms Maher and Mr Gallagher and that's what I was making quite clear to them.
…
MR BENNETT: I should accept the undertaking from Mr Georgatos. That's for whatever reason, pragmatic or otherwise (ts 17).
What is extracted from ts 17 needs to be read in the context of the entirety of the transcript for those days' proceedings. The transcript was admitted to evidence at the hearing before me as exhibit 6. It is enough for present purposes for me to note at that time that Mr Georgatos was the in person respondent to the application by the plaintiffs seeking an interlocutory injunction restraining him from publishing any further potentially defamatory articles about them.
That urgent application was resolved on 16 August 2013 upon the basis of Mr Georgatos' undertaking to the Court which was accepted. The entirety of the transcript (exhibit 6) renders all that abundantly clear.

Statutory framework

In the opening context of the plaintiffs' contempt motion against Mr Georgatos it is necessary for me to note with some precision the terms of RSC O 55. It has already been seen the plaintiffs' motion is explicitly brought pursuant to RSC O 55 r 4.
Rule 4 stands in some contradistinction to r 3, which deals with contempts in the face of the Court. The present motion is explicitly moved on the basis of the conduct of Mr Georgatos not being challenged as a contempt in the face of the Court. In that context, O 55 r 4 is then to be assessed. The rule is headed 'Other cases of contempt' and provides:
(1)In a case to which rule 3 [ie, contempt in the face of the court] does not apply, and subject to subrule (2), application for punishment for contempt of court must be made by motion on notice to the contemnor, for an order that he be committed to prison for his contempt.
(2)Applications for committal for contempt of court consisting of disobedience to judgments or orders of the Court made by a judge, or orders of the Court made by the master, may be made by summons to a judge in chambers.
It can be seen the present motion is not an application arising in the context of any asserted disobedience to judgments or orders pursuant to RSC O 55 r 4(2). Hence, it is exclusively RSC O 55 r 4(1) that I am concerned with.
As was noted by EM Heenan J in Re Glew; Ex parte The Hon Michael Mischin MLC, Attorney General (WA) [2014] WASC 107, RSC O 55 r 2(2) at one time had provided, subject to certain qualifications, that an order for committal might only be made by the Full Court. His Honour observed:
That has since been amended and the power by the rule is now clearly conferred upon either a single judge or a judge of appeal [6].
The motion against Mr Glew was brought pursuant to O 55 r 4, notwithstanding that the nature of the contempt in that case appeared to be a contempt in the face of the Court of Appeal. There the motion filed looks to have been an originating motion: see Glew [1].
The present motion is filed and advanced within the context of a subsisting defamation action which the plaintiffs commenced by their writ against the defendants, on 19 April 2013. I have case managed that defamation action since it was entered to my CMC (Commercial and Managed Cases) List on 6 May 2013 (as indeed all defamation actions are case managed in the CMC List).
In light of that amendment to RSC O 55 granting jurisdiction to a single justice of this Court to deal with applications for punishment for contempt of Court (other than contempt in the face of the Court), there appears to be no jurisdictional impediment to the judicial case manager of an action dealing with and resolving a motion for contempt brought as between the participant parties in subsisting litigation. Nevertheless, whether that is a prudent course or not raises distinct considerations I will address.
I note for instance that Corboy J dealt with a contempt motion in a defamation action which he was case managing: see Prefumo v Bradley [No 2] [2012] WASC 76. In my view, however, for cases other than scenarios of an alleged contempt in the face of the Court (under RSC O 55 r 3), or sanctions for disobedience to judgments or orders (under RSC O 55 r 4(2)), a more desirable course is to commence fresh proceedings by an originating motion, which would be heard before a judge, other than the case manager - as would appear to have been the case for the originating motion dealt with by Jenkins J in Suda Ltd v Sims [2014] WASC 376. I say that because in the context of what may be assessed as criminal (or at least quasi‑criminal) proceedings, where matters need to be established beyond reasonable doubt in order to find a contemnor guilty of a charge, dangers of a case manager unwittingly bringing to bear their accumulated knowledge about the litigation over time and using their background as insight concerning the progression of the matter, may present an insurmountable obstacle to an impartial determination of the contempt motion. Moreover, if the alleged contempt is found to be established, there is at least some prospect of the case manager then needing to disqualify himself or herself from any further involvement in managing or hearing the litigation on the basis of bias concerns.
Given the final conclusions which I have reached upon these averments as to contempt, I have reached, in the end, a position whereby Mr Georgatos is not in my view disadvantaged by my prior and ongoing involvement as case manager of the underlying defamation action. Accordingly, I have resolved to determine the motion. Furthermore, I would propose to continue to case manage the underlying action, at least until such time as an application is brought, if at all, seeking that I recuse myself by reference to the outcomes upon this motion.

Criminal contempt - principles

The Law Reform Commission of Western Australia, Review of the Law of Contempt, Final Report (Project 93, June 2003) commences at page 3 with an extract from the judgment of Lord Cross of Chelsea in Attorney-General (UK) v Times Newspaper Ltd [1974] AC 273. His Lordship had said:
'Contempt of court' means an interference in the administration of justice and it is unfortunate that the offence should continue to be known by a name which suggests to the modern mind that its essence is a supposed affront to the dignity of the court. Nowadays when sympathy is readily accorded to anyone who defies constituted authority the very name of the offence predisposes many people in favour of the alleged offender. Yet the due administration of justice is something which all citizens, whether on the left or the right or in the centre, should be anxious to safeguard (322).
Contempt of court is a common law offence in Western Australia. This position is somewhat anomalous, given that criminal law in Western Australia is otherwise codified by statute. However, s 7 of the Criminal Code (WA) explicitly says:
Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as "contempt of court"; but so that a person cannot be so punished, and also punished under the provisions of the Code for the same act or omission.
See also Supreme Court Act 1935 (WA) s 16(1)(a) as regards the Supreme Court's residual general jurisdiction. I would again respectfully note EM Heenan J's observations in Glew [6], his Honour referring to Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 298 [11] (Wheeler J); Marriner v Smorgon [1989] VR 485 and Resolute Ltd v Warnes [2001] WASCA 4 (Resolute v Warnes [2001]).
I shall now endeavour to collect and synthesise some relevant principles applicable to the charges of contempt raised against Mr Georgiatos in present circumstances.

My principle 1

The rationale for the imposition of a contempt sanction is to ensure that parliamentarians and courts are able to effectively discharge their functions.
Hence, the rationale for the imposition of contempt sanctions by superior courts does not lie in the protection or vindication of the reputation of individual judges.
In Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, Deane J (in a passage adopted and applied in this state by the Full Court in Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 343 (Anderson J, Pigeon J agreeing)) said:
[N]othing in this judgment should be understood as suggesting that the traditional powers of the Parliament and superior courts to entertain proceedings for contempt are not justifiable in the public interest. In that regard, it is important to remember that ... the justification of proceedings for contempt of court or parliament lies not in the protection of the reputation of the individual judge or parliamentarian but in the need to ensure that parliaments and courts are able effectively to discharge the functions, duties and powers entrusted to them by the people (187).

My principles 2 - 4

In Y v W [2007] NSWCA 329; (2007) 70 NSWLR 377, Ipp J (Spigelman CJ agreeing), in the context of a contempt involving an alleged interference with the course of justice, identified some key principles under his reasons at [35] ‑ [39]. His Honour's (third, fourth and fifth) principles, in my view, are of particular relevance to the presenting circumstances. His Honour had observed:

Principle 2

37.… it is a contempt of court to obstruct the due administration of justice by attempting to induce a settlement of an action by improper threats or intimidation. In Attorney-General v Times Newspapers Ltd, Lord Simon said the following on this point (at 318):
"'It is a contempt even privately to threaten … a party (In re Mulock (1864) 3 Sw & Tr 599). The threat there, by someone who "had no interest whatever in the matter," was to "publish the full truth" unless a petition were withdrawn. Sir James Wilde, Judge Ordinary, said, at p 601: "… she [the petitioner] claims the right to approach this court, free from all restraint or intimidation. It is a right that belongs to all suitors."'

Lord Cross said (at 326):
'To seek to dissuade a litigant from prosecuting or defending proceedings by threats of unlawful action, by abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose and such like, is no doubt a contempt of court ….'

Principle 3

38.Fourthly, the bringing of improper pressure on a party to collateral proceedings amounts to a contempt of court (involving the obstruction of the due administration of justice) irrespective of whether or not the pressured party is, in fact, deterred from litigating. In Smith v Lakeman (1856) 26 LJ Ch 305, the plaintiff sent a letter to the defendant pending the suit. Stuart V‑C said (at 306):
'[The letter] was a threat for the purpose of intimidating [the defendant] as a suitor, and, therefore, whether it had had that effect or not, it was unquestionably a contempt of court.'

See also Harkianakis v Skalkos (1997) 42 NSWLR 22 and Resolute Ltd v Warnes [2000] WASCA 359 at [13].

Principle 4

39.Fifthly, in a contempt involving obstruction of the administration of justice, the plaintiff must prove, according to the criminal standard of proof, that the material in question has, as a matter of practical reality, a tendency to interfere with the course of justice in a particular case: see John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372 per Dixon CJ, Kitto, Fullagar and Taylor JJ; Harkianakis v Skalkos (at 27) per Mason P; Resolute v Warnes (at [13]). The test was put succinctly by O'Loughlin J in Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496 (at 505) where his Honour said that the court must determine 'whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate'.

My principles 5 - 7

Further principles emerge in the observations of the Full Court in Resolute Ltd v Warnes [2000] WASCA 359 (Resolute v Warnes [2000]). Again Ipp J citing Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 sets out relevant principles as follows [13](c), (d) and (e):

Principle 5

Because of its exceptional nature, this summary jurisdiction has always been regarded as one, which is to be exercised with great caution.

Principle 6

Intention to interfere with the due administration of justice is not necessary to constitute a contempt. Where, however, intent to interfere has been proved, this has usually been sufficient to sustain a prosecution.

Principle 7

The gravamen of the category of criminal contempt in which improper pressure is placed on a party to court proceedings through public dissemination of material is the tendency to deter the litigant, improperly, from obtaining curial vindication of its rights. Successful interference with a party's conduct of proceedings is not necessary for proof of liability for contempt by improper pressure.

My principle 8

It is open to plaintiffs to initiate contempt proceedings as they have in the present instance, notwithstanding that suit for contempt may also be brought at the instigation of the Attorney General. Glew is an illustration of that course. Concerning a private contempt initiation in European Asian Bank AG v Wentworth (1986) 5 NSWLR 445, Kirby P said:
[T]he jurisdiction which is invoked does not seek the enforcement of private rights. ... They are not private proceedings for the vindication of the rights of the Bank or its employee and witness Mr Payne. They are proceedings, criminal in their nature, to vindicate the public interest in the due administration of justice. The only question is whether the Bank may initiate such proceedings itself or cause them to be initiated in the manner it has (458F - G).
The question posed was answered in the affirmative in European Asian Bank AG v Wentworth (459D, 460B, 462D and 462G). See also Resolute v Warnes [2000].
There has been no suggestion here on behalf of Mr Georgatos in the proceedings, that the plaintiffs lack the standing to prosecute the present contempt charges.

My principle 9

For cases of contempt of court concerning improper pressure, threats or attempted intimidation involving private communications to individuals, regard needs to be had to the subjective characteristics of recipients of a communication, even bearing in mind the overall objective evaluation undertaken by the courts. In Bhagat v Global Custodians Ltd [2002] NSWCA 160 Ipp AJA had observed:
That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications [54].
See as well reasons of Spigelman CJ in Bhagat [46] ‑ [51]. Note also, concerning private threats and persuasion directed at courts, witnesses and parties, discussions by Professor LJ Miller, Contempt of Court (3rd ed, 2000) [8.57] and [8.59].

My principle 10

As regards the distinct issue of inappropriate communications with a court, or attempts to influence the integrity of the court (for the purposes of the present charge of contempt under par 4.2 of the motion), I observe that Lord Cottenham LC in Re Dyce Sombre (1849) 9 Mac & G 115; (1849) 41 ER 1207, said as regards this aspect of an offence of contempt of court:
Every private communication to a judge, for the purposes of influencing his decision upon a matter publically before him, always is, and ought to be, reprobated; it is of course calculated, if tolerated to divert the course of justice, and is considered, and ought more frequently than it is, to be treated as what it really is, a high contempt of court (1209).
To that same end are observations of the High Court of Australia rendered in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 346 - 347 (Gibbs CJ); 350 ‑ 351 (Mason J), regarding the difficulties posed by an ex parte communication sent to a court - on the basis of such communications generating (potentially) reasonable apprehensions as to bias.

My principle 11

There is also, in the context of ex parte communications to the court, a recognised genre of contempt under the so‑called pre‑judgment rule, as was discussed by Lord Diplock in Attorney‑General (UK) v Times Newspapers Ltd.
His Lordship had observed:
The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely on obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based on those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely on there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court (309).
To that same end, Gibbs CJ in Re JRL observed in turn:
[A] judge should not, in the absence of the parties or their legal representatives, allow any person to communicate to him or her any views or opinions concerning a case which he or she is hearing, with a view to influencing the conduct of the case. Indeed, any interference with a judge, by private communication or otherwise, for the purpose of influencing his or her decision in a case is a serious contempt of court (347).
See also Re JRL (350) (Mason J), with Brennan J expressly endorsing the observations of Lord Cottenham LC as were earlier cited, concerning 'a high contempt of court' (368 - 369).
In this respect, I note a comprehensive article by Richard Lilley SC and Justin Carter, Communications with the Court (2013) 87 ALJ 121, 128 - 130, under the subheading 'The Risk of Contempt of Court'. The authors' remarks are directed at communications by barristers and legal practitioners and, of course, the general undesirability of an ex parte communication to the Court. But these observations apply with even greater force concerning dangers in private communications to a Court made by a self‑represented litigant, which is the subject matter context of the present application.

My principle 12

There is no maximum penalty specified for a common law contempt offence. However in Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195, Martin CJ was guided by the considerations specified under the Sentencing Act 1995 (WA) in terms of the penalty imposed in the presenting circumstances of that offence [35] - [36].
I now move to discuss the procedural history underlying the defamation action which gives rise to the contempt motion.

Procedural history

The plaintiffs' notice of motion as originally framed did not contain subparagraphs 4.1 and 4.2. I gave leave for those amendments to be made. Without those augmentations the contempt averments under the motion would not have been sufficiently particularised or precise enough to support the contempt motion proceeding further. For instance, a reference seen at par 4 to 'grounds set out in' an affidavit of a Ms Randall, affirmed 16 June 2014 is, by itself, a wholly inadequate and inappropriate basis to formulate a serious charge against a contemnor.
In the end result, however, augmentations to the motion under pars 4.1 and 4.2 cured that deficiency - although reference to Ms Randall's affidavit, by the motion, is otiose. Her affidavit I note became exhibit 1 at the hearing.
I should also note that the contempt motion of the plaintiffs was brought on before me on two prior occasions - when Mr Georgatos appeared alone in person, unrepresented either by solicitors or counsel. The first occasion was 3 July 2014. Then I ultimately adjourned the motion in order to allow an opportunity for Mr Georgatos to obtain legal representation, particularly bearing in mind the seriousness of the contempt averments brought against him.
The next occasion the contempt motion was before me was on 9 September 2014. At that time I afforded Mr Georgatos, who appeared and was still unrepresented, a further opportunity to secure the pro‑bono legal representation which he was then indicating that he was likely to obtain. At that time, I adjourned the motion to 11 November 2014 for a substantive hearing.
As matters have transpired Mr Georgatos has eventually secured the pro bono assistance of Mr Levitt, a solicitor admitted to practice in New South Wales, who appeared on his behalf and represented Mr Georgatos at the 11 November 2014 hearing. Mr Levitt also provided some written submissions of 7 November 2014 on Mr Georgatos' behalf. It appears Mr Levitt has volunteered his services pro‑bono, albeit he is not the solicitor of record for Mr Georgatos. The Court is grateful to Mr Levitt for his assistance.
It will be necessary now for me to provide some brief underlying history to the substantive defamation litigation before turning to the written communications of 6 June 2014 and 15 June 2014 respectively in order to evaluate their content.
As mentioned, the defamation action by the plaintiffs was commenced on 19 April 2013. There followed, on 24 May 2013, the plaintiffs' detailed statement of claim complaining against the first defendant as publisher of the National Indigenous Times and against the second defendant essentially as author of the articles complained of about a series of publications. An amended statement of claim was filed on 19 August 2014.
Each publication is complained of as being defamatory of each plaintiff. The statement of claim runs to some 71 paragraphs across 31 pages. It complains of 14 substantive publications in the National Indigenous Times over a period between 31 October 2012 and 13 March 2013.
Further media publications are complained of under pars 50 - 69 of the pleading. Under par 71.1 the plaintiffs' claim aggravated damages and, in particular, seek a:
71.1Permanent injunction restraining the First and Second Defendants from publishing or causing to be published the words complained of or any other words to the same or similar effect.
The first through seventh publications are found scheduled to the pleading. Each is seen to be authored by 'National Indigenous Times Reporter Gerry Georgatos'.
On 3 May 2013, the first defendant, through solicitors, (Gilbert & Tobin Lawyers) entered a memorandum of appearance. Mr Georgatos filed an appearance on 26 April 2013, indicating he was not represented by a solicitor and would be self‑represented.
On 9 August 2013, the plaintiffs filed a chamber summons seeking the interlocutory injunction I have mentioned as against Mr Georgatos, restraining him from
further publication of the Second Defendant's article set out below or words to similar effect to the contents of the following articles published in the Wednesday 26 June 2013 edition of the National Indigenous Times (NIT Issue 317 Vol 12) which are of and concerning the Plaintiffs.
Two articles on pages 1 and 16 and 2 and 23 respectively in that publication were identified as the 'further publications'.
The plaintiffs filed affidavits in support of their interlocutory injunction. The chamber summons was amended on 15 August 2013.
There followed a hearing the subject of the tendered transcript - which is now exhibit 6. Mr Georgatos appeared for himself that day without legal representation.
The Associate's Record for the hearing of 16 August 2013 at the special appointment records with Mr Georgatos appearing in person as the second defendant and there being no appearance on the part of the first defendant. The record discloses the following orders or directions made that day:
1.The oral undertaking provided to the court by the second defendant be accepted. The transcript of the hearing be provided to the parties free of charge.
2.The plaintiffs' application for an interlocutory injunction against the first defendant be adjourned to a time to be fixed.
3.The matter be otherwise adjourned until 9.15 am Thursday 12 September 2013 in the CMC List.
4.The costs of today be reserved.
On 19 August 2013, the plaintiffs amended their statement of claim in limited respects.
On 12 September 2013, I ordered that the first and second defendants file and serve their defence by 3 October 2013.
On 12 September 2013, fresh solicitors (Corser & Corser) became solicitors on record, representing both defendants, in lieu of the former solicitors Gilbert & Tobin (who had only been solicitors of record for Destiny Publications and not Mr Georgatos).
Thereafter a defence was filed on behalf of both defendants on 1 November 2013. Some interlocutory pleading disputation ensued over the defence thereafter, which it is unnecessary to relate.
On 6 May 2014 Corser & Corser applied to be removed from the record as solicitors for the defendants. On 8 May 2014, I issued orders broadly in those terms.
Since that time Mr Georgatos has effectively been left self‑represented as second defendant in the action.
On 6 June 2014, there was another directions hearing. There was no attendance that day on behalf of either defendant. At the plaintiff's behest, I made orders setting down a hearing of the strike out application earlier filed on the part of the plaintiffs (on 1 April 2014) and seeking to strike out significant components of the pleaded defence that had been filed on behalf of both defendants. The hearing date for the application was then set for 10.30 am on 17 June 2014.
As is customary in CMC List case managed actions, particularly where one or other of the parties does not attend at a directions hearing, the judge's associate will dispatch to all the parties, usually by email, a copy of the Associates Record concerning the orders made at the hearing.
Following that CMC practice, at 11.15 am on 6 June 2014 my then Associate, Mr Clarke, emailed Ms Di Lena (of Bennett + Co), Mr Bower (of Corser & Corser) and to Mr Georgatos an attached copy of the orders I had made that morning as the 'Associates Record'. [Note: Corser & Corser had, of course, given leave to remove itself as the solicitors of record for the corporate first defendant, but had not as at 6 June 2014 attended to a notification requirement, under RSC O 8 r 7(1). In consequence, Mr Bower of Corser & Corser was retained as part of the overall email despatch.]
The Associate's 6 June 2014 email to the parties read:
This matter was heard today at 9.15 am, and orders made as set out in the Associates Record enclosed. I note in particular that the plaintiffs' application to strike out the defence is now set down for 10.15 am on 17 June 2014.
It is, of course, customary in the CMC list for communications in relation to directions made to be exchanged between the judge's associate with the parties, by email. To that end, CMC List case managed actions usually proceed at the outset upon a provision to the court of each party's email contact addresses: see RSC O 4A r 14(3)(a)(ii) and (4). This is an efficiency measure that in large part is now indispensable to this Court's ability to function timeously as an effective 21st Century institution. Unfortunately, the facility of an instantaneous email communication carries a potential for being abused.
Under the RSC all defamation actions are case managed by an assigned case manager judge within the CMC List: see O 4A r 11(a). As earlier mentioned, I have been the case manager of CIV 1636 of 2013, almost from its inception.
I can now, with that background, turn to the substantive email communications by Mr Georgatos that are complained of under the plaintiffs' contempt motion.

Two email communications of Mr Georgatos complained of

From a chronological perspective it is more convenient to address at first par 4.2 of the plaintiffs' motion; namely, the emails of 6 June 2014 sent by Mr Georgatos respectively at 11.39 am and 11.57 am to my Associate.
An alleged interference with the administration of justice that is complained of essentially focuses upon these two ex parte email communications sent by Mr Georgatos, on a basis that they were sent by him to the court with the deliberate intent that the communications be read by me (as their express terms as seen below do stipulate) and are contemptuous 'by interfering with the integrity of the judicial process and eroding the impartiality of the court by attempting to influence the court's decision'.
It will be remembered that my Associate's email of 11.15 am on Friday 6 June 2014 was sent to Ms Di Lena, Mr Bower and Mr Georgatos and informed them all that the plaintiffs' application to strike out the defendants' defence had been set down that morning for a further hearing before me at an appointment set for 10.15 am on 17 June 2014.
That email communication obviously led to the swift response of Mr Georgatos at 11.39 am sent by email to my Associate (and also copied by Mr Georgatos to Mr Bower at Corser & Corser and the director of the first defendant, Destiny Publications Pty Ltd, Mr John Rowsthorne).
Notably, although copied to those persons, this email communication was not forwarded by Mr Georgatos to anyone at Bennett + Co, the solicitors for the plaintiffs, to Mr Georgatos' knowledge. It is clear that earlier Mr Georgatos had routinely been in email communication with Bennett + Co on other occasions concerning this litigation. It is clear Mr Georgatos knew how to make contact with an email addressee at Bennett + Co, had he chosen to do so. Plainly, he chose not to include Bennett + Co, an omission that would have seen a legal practitioner on the record sanctioned for such misconduct.
Mr Georgatos' 11.39 am email of 6 June 2014, which I will soon set out below, is addressed to 'Robert', being a reference to my Associate at the time, Mr Robert Clarke.
It has been necessary to redact at places a few components of Mr Georgatos' communication - for reasons which should be demonstrable. Nevertheless, the overall purport of the communication should be clear. (For convenience of reference I have placed a number to the left‑hand side of each separate line or paragraph resulting in the identification of effectively components 1 ‑ 19 in this communication. Further, all of Mr Georgatos' emails reproduced in these reasons are uncorrected for spelling and grammar errors):
1.Robert,
2.This correspondence is not for Bennett and Co.
3.I do not understand anything of what is going on, nor do I really care. Please refer my email to Justice Martin.
4.I know nothing about June 6 and non‑appearances. I have been advised of none of this.
5.Ronald has notified John and myself that he has withdrawn representation of us. I respect Ronald's right to do this and I have no issue with Ronald withdrawing his services. I have included Ronald in this email only because of this reference to him.
6.I will never pay anything to anyone as I am on the side of right and the Justice knows this. But even if he does not, I will not under any circumstance be made liable for anything as a result of Michael's and Lillian's disgraceful actions which should never be tolerated by any just Court or just legal system. Do not convene any more court hearings that I am never notified about nor that I will ever attend.
7.I cannot and will not appear on June 17 because I know nothing about it, first time I have heard this and furthermore will be interstate.
8.Michael and Lillian are [redacted], if I am to be screwed over because of these [redacted] and [redacted] individuals that's not my doing, that's the doing of others.
9.I will speak my peace and truth at all times and will not be stifled. I am also a conscientious objector to any legal process geared to defend the rights of the [redacted]. I am not saying that the Court is doing but the systemic failures of the system have ensured Michael and Lillian will get away free of accountability.
10.Robert, I give no permission whatsoever, and I don't care about any laws I don't know about, for this email to relayed in any way to the entity Bennett and Co.
11.Michael and Lillian have got away with what they've done and continue to do, and will do to the end of their days, and they should be relieved now that their [redacted] conduct has seemingly won out. My views of their lawyers and of the Court for permitting this do not matter. All matters are now obviously at an end and the Court knows this, Michael and Lillian have used the Courts and law as most do, to their exclusive advantage and through the attrition and misuse that is litigation.
12.I am not interested in this strike out [redacted] back and forth garbage that you all so impose on citizenry. I conscientiously object to it. I stated to the Supreme Court when in attendance before Justice Martin that under no circumstance would I live in the Supreme Court. If I start agreeing to striking this and that out then I would be compromising truth and the facts and therefore I would be lying, and I will not do this. Barristers and solicitors and Courts may be fine with all this but I am not and I will not for anyone start in effect lying, not for the Supreme Court, not for anyone. So forget it.
13.There is no justice or prospect of justice through this process, obviously the National Indigenous Times cannot afford justice and I will not participate in this charade.
14.No one is to contact me again unless it is to apologise. Matters ended.
15.Honour is everything, and fortunately our days come to an end and I do not have to deal ongoing with injustices daily and outrageous [redacted]. At this time I have much to do with homeless families, with various commitments more important than Michael's and Lillian's [redacted] and [redacted], I am grieving the loss of my father, and there are those who need me in ways Michael and Lillian should have been there for them but who instead [redacted] them. Forgive me for my indulgences but please I'd prefer to not hear further from anyone on the [redacted] that is Michael and Lillian.
16.Someday may you understand the extent of my honour and my reasons for this honour. Life is little without honour.
17.Best to you and all, always, nevertheless with much respect, Gerry Georgatos
18.(And I do no longer reside in [redacted]). All matters closed and the Court can tell Michael and Lillian to nick off now.
19.Gerry Georgatos

Manager - [redacted]

The Wheelchairs for Kids Foundation

At 11.48 am the same day (Friday 6 June 2014) Mr Clarke emailed back Mr Georgatos in these terms:
Dear Mr Georgatos,
As a general rule, this Court does not receive or act on ex parte correspondence not sent to all parties in a matter.
Best regards,
Rob Clarke
Associate to the Hon Justice Kenneth Martin
Supreme Court of Western Australia
The statements under pars 2 and 10 in Mr Georgatos' 11.39 am email explicitly say that Bennett + Co, as the solicitors of record for the plaintiffs, had been excluded from receiving Mr Georgatos' email. Such ex parte contact with the Court is rarely acceptable. But beyond that, Mr Georgatos was also essentially attempting to forbid the Court itself from providing this communication to the plaintiffs' solicitors. That arrogance almost beggars belief. The communicated position was equally improper, unacceptable and inappropriate. Hence, the 11.48 am response email to Mr Georgatos from my Associate had followed.
There was a suggestion put to me during argument by pro bono counsel for Mr Georgatos that the 6 June 2014 emails from Mr Georgatos had not been shown to me by the Associate. Some sort of beyond reasonable doubt submission was advanced on a basis of it not being appropriate to draw an inference to that end on a criminal contempt motion (see ts 243 - 244). That submission ignores the numbered sentences of the email. It also ignores the fact that Mr Georgatos' withholding of permission to provide his email to Bennett + Co under par 10, presented as a highly inappropriate non‑communication to the other parties' solicitors scenario, which a CMC List associate was almost certain to bring to their judge's attention. [Note: The fact I also recollect as a matter of absolute certainty that these 6 June 2014 emails were actually brought to my attention, as would be expected, is probably another practical reason why it is usually not a good idea to have the case manager determine the contempt motion, as I earlier indicated. But the submission is devoid of any merit in any event for independent reasons, and my inconvenient knowledge of the bleeding obvious will not affect the outcome of this motion.]
At 11.57 am, also on 6 June 2014, Mr Georgatos sent his second email communication of the day to the same parties, and again excluding the plaintiffs' solicitors. Again this second communication was primarily directed to my Associate, although Mr Rowsthorne and Mr Bower were again copied with the communication.
The terms of the second email are more brief, albeit more strident and offensive. The email is in the following terms (continuing on the sequence of numbering I have added):
20.Robert, I am not interested in your general rules, ex parte, whatever parte, I am only interested in justice, and your Court does not do justice, and therefore I was in the wrong building. Please get what I'm telling you, all matters at an end. I will have nothing to do with you, your Court, this matter, and the injustice periled by you all on us.
21.I will not have truth smashed in a Court, by renegade lawyers, by [redacted] defendants, by the privilege that money wrongly bestows, I will not participate. The Justice is to be informed of my conscientious objection.
22.I am not interested in bullshit protocols and in procedures so displaced that they screw people over. Do not refer to me as Mr again, just as Gerry. Inform the Justice, I will never attend willingly his Court nor will I participate in this charade. I will lie for no-one, not even my material best interests. You have every opportunity to do what is right and what is just, this is up to you. You do not have to let the Michaels and Lillians of this world turn the court and the justice system into a circus - and they have.
23.My emails are to be read by Justice Martin.
24.Goodbye.
25.Gerry
At 12.08 pm, my Associate, by a further email, acknowledged Mr Georgatos' further email, but also copied, at my instruction, the full email trail of the day (which began with the Associate's 11.15 am communication to Mr Rowsthorne and Mr Bower at Corser & Corser) to Ms Jonelle Di Lena, a solicitor engaged in this litigation at Bennett + Co.
During oral submissions on 11 November 2014 it was submitted, again in the context of another beyond reasonable doubt submission from pro bono counsel for Mr Georgatos, that I could not just assume Mr Georgatos' two email communications of 6 June 2014 to my Associate had been forwarded by him to the plaintiffs' solicitors (by email). This was essentially on a basis that it could not be assumed by me as being proven that Ms Di Lena was, indeed, a solicitor engaged at Bennett + Co on behalf of the plaintiffs. This was submitted albeit Ms Di Lena had actually appeared as counsel before me in this action on 12 September 2013 (see ts 167 - 170). Again this was a meritless submission. In that respect, I also mention the express reference to Ms Di Lena as the usual solicitor with the primary conduct of the matter subject to the supervision of Mr Martin Bennett, as is referred to in par 1 of Ms Randall's affidavit of 16 June 2014 (exhibit 1).
For reasons self‑evident to a competent legal practitioner (as explained in the earlier referenced article by Lilley SC & Carter Communications with the Court), but seemingly not self‑evident to a litigant in person - considerations of propriety and natural justice demanded that Mr Georgatos' emails in this trail of email correspondence be drawn to the attention of the plaintiffs' solicitors Bennett + Co. That happened at 12.08 pm on Friday 6 June 2014 by my Associate's email, sent to him under my express instruction in order to redress the impropriety of Mr Georgatos' attempted line of ex parte communication with the court.
Inappropriate, improper and offensive as these two 6 June 2014 email communications to the court sent by Mr Georgatos were, the relevant question on this motion is whether, despite their narcissistic, misguided and ignorant content, they should be assessed as conduct that is a contempt of court. A contempt is asserted on a basis that the two emails were communications which have a tendency to interfere with the administration of justice, by infringing against the principles which I have earlier identified. I move to that evaluation.

Determination as regards emails of 6 June 2014

Of course, the reality is that email communications of this nature by a litigant in person defendant are unlikely to carry any influence at all upon a judicial officer, in terms of eroding the court's impartiality or influencing it in its ultimate evaluation and decision in the litigation. To that end, I invoke the observations of McHugh JA in Attorney‑General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695. His Honour had observed:
This is because judicial officers by their training and experience are expected to put aside prejudicial remarks and material (709D).
Nevertheless counsel for the plaintiffs Mr Bennett, by reference to passages from Professor Miller's 2000 text Contempt of Court, submitted that the imposition of an objective touchstone was required. Therefore, it was put, unlikely as these communications were in reality to carry any influence upon me as to the result of this litigation (a submission I accept), that nevertheless these emails manifested a clear attempt by Mr Georgatos to influence the court against his clients, which is seen from the text of the emails. This, it is submitted, was all that it was necessary to show.
To that same end, Mr Bennett also referred me to a section of Professor Miller's text in ch 5, s F under a heading, 'The Problem of Ineffectual Attempts'. That section addresses, as Professor Miller explains at par 5.91, 'whether a contempt may be committed when the defendant intends to impede or prejudice the administration of justice, but has no realistic chance of achieving his objective'.
Professor Miller then discusses (at par 5.93) two significant cases, albeit of some antiquity now. He observes:
However, there are examples in other cases involving improper approaches to judges. For example Lechmere Charlton's Case [(1837) 2 My & Cr 316; (1837) 40 ER 661], where a barrister wrote letters to a Master and to the Lord Chancellor on the subject matter of a pending suit, Lord Cottenham LC remarked that 'although such a foolish attempt as this cannot be supposed to have any effect, it is obvious that if such cases were not punished, the most serious consequences would follow' (at 392 and 671). The author was accordingly committed to the Fleet Prison. Similarly in Martin's Case [(1747) 2 Russ & M 674; (1747) 39 ER 551] an offence was committed when a bank note for £20 was sent to Hardwick LC, although it can hardly have been thought likely that he would be influenced by its receipt.
Professor Miller next refers to a series of more contemporary decisions, including to Re Lonrho PLC [1990] 2 AC 154, particularly Lord Bridge's observations at 213 ‑ 214. He comments at par 5.94:
This again suggests that an intent to affect the appellant proceedings might have constituted a common law contempt even though it would have been wholly ineffectual. Similar views have been expressed by Lord Parker CJ [referring to fn 269 and R v Duffy; Ex parte Nash [1960] 2 QB 188, 197] and in a modern Australian case where it was said [referring to Attorney‑General (NSW) v John Fairfax & Sons Ltd (1980) 1 NSWLR 362, 369]:
'Thus a letter written to a judge trying a case, or a bribe offered to him, or an article published in a newspaper, will be contemptuous, if the act was done, or the publication made, with the intention of influencing the judge's decision in proceedings even though the possibility that he will be influenced is remote or theoretical'.
After discussing further the UK decisions in R v Ingrams; Ex parte Goldsmith [1977] Crim LR 40 and Sir John Donaldson MR's observations in Attorney‑General (UK) v Newspaper Publishing PLC [1988] Ch 333, 373 (suggesting that without more an unfulfilled intent to interfere is not sufficient), Professor Miller moves to discuss the New South Wales decisions in The Prothonotary v Collins (1984) 2 NSWLR 549 and Registrar of the Court of Appeal v Collins (1982) 1 NSWLR 682. He draws attention to the fact that although the underlying facts were similar, the outcomes as regards contempt were different. Professor Miller observes (at par 5.96) that in The Prothonotary v Collins the majority of the New South Wales' Court of Appeal found that a contempt had not been proven, in the context of conduct by Collins involving the distribution of leaflets to potential jurors in the precincts of the New South Wales Court, observing that McHugh JA and Kirby P concluded that showing a bare intention to interfere with justice was insufficient, 'where such a result was unlikely to be achieved' (contrast, however, the seemingly contrary subsequent observations of Moffitt P in the Registrar of the Court of Appeal v Collins (691)).
Given some level of uncertainty, I proposed to proceed upon the basis that it is enough, in line with the observations of Moffitt P, to show that there was intention to interfere, albeit the intent is not fulfilled.
At the present contempt hearing, Mr Georgatos made, as he was entitled, an election, expressed through his pro‑bono counsel, not to adduce any personal evidence resisting the contempt motion against him.
Accordingly my task of ascertaining Mr Georgatos' intent, as regards his 6 June 2014 emails of 11.39 am and 11.57 am, must be assessed from their terms alone.

Emails of 6 June 2014 sent by Mr Georgatos: assessment of intent

It will be remembered that par 4.2 of the plaintiffs' reamended motion contends Mr Georgatos held the 'deliberate intent' that the communications be read by me. That conclusion is comprehensively established merely from the terms of the emails themselves. See for instance 11.39 am email par 3, second sentence, 'Please refer my email to Justice Martin'; and 11.57 am email par 21, second sentence, 'The Justice is to be informed of my conscientious objection'; par 22, 'Inform the Justice'; and par 23, 'My emails are to be read by Justice Martin'.
However, answering that question in the affirmative does not thereby prove Mr Georgatos' deliberate intent to interfere with the integrity of the judicial process - by eroding the impartiality of the court, in attempting to influence the court's decision. An evaluation of that issue needs to be undertaken independently.
Bearing in mind the initiating context, namely my Associate's emailed advice to Mr Georgatos that a strike out application against the defence was to be heard on 17 June 2014, in the end, my conclusion is that the 4 June 2014 email communication of Mr Georgatos to my Associate was not contemptuous, in the respect alleged. The underlying intent of the two 6 June email communications, high handed and offensive as they were, in my assessment only displayed what was, in essence, a very misguided intended attempt by Mr Georgatos, given his demonstrable ignorance of the law as a litigant in person, to somehow unilaterally declare that he was no longer participating in the litigation, thereby bringing the litigation against him to an end, under his own command. Of course, extricating oneself from a defamation action as a defendant, is far from being as simple as just that. Perhaps with his pro‑bono legal assistance Mr Georgatos now understands this. Clearly, he did not at the time. However, upon my very close analysis of what he wrote and sent, my view is that he was trying to unilaterally extract himself from the litigation. That, I find, was in fact the essence of Mr Georgatos' misguided intent at the time, albeit very offensively expressed and rooted in his ignorance of the law and proper procedure, as it was.
That benign conclusion is supported from the following elements of the 11.39 am email:
•par 6 - 'Do not convene any more court hearings that I am never notified about nor that I will ever attend';
•par 7 - 'I cannot and will not appear on June 17 because I know nothing about it, first time I have heard this';
•par 11 - 'All matters are now obviously at an end';
•par 13 - 'I will not participate in this charade';
•par 14 - 'No one is to contact me again unless it is to apologise. Matters [sic] ended'; and
•par 18 - 'All matters closed and the Court can tell Michael and Lillian to nick off now'.
In effect, I accept at last a submission of pro‑bono counsel Mr Levitt (see ts 234 of 4 November 2014), who said that as 'unhinged' as these communications by Mr Georgatos were, essentially what he was then communicating was that he wanted to 'opt out' of the litigation from then.
Likewise and within his second 11.57 am email, I note:
•par 20 - 'Please get what I'm telling you, all matters at an end';
•par 21 - 'I will not participate'; and
•par 22 - 'nor will I participate in this charade'.
Accordingly, I am not, at the end, satisfied beyond reasonable doubt that the plaintiffs have established a malign intent and thereby the alleged contemptuous conduct by Mr Georgatos in the respects as are identified under par 4.2 of the re‑amended motion.
However, I do render the following further observations:
(a)These unilateral communications by Mr Georgatos to the court were, as we have now seen, entirely inappropriate. Had they been sent to the associate of a judge of this court by an admitted legal practitioner, they would have almost certainly resulted in a strong disciplinary sanction by reason of their improper, impertinent and offensive content.
(b)A suggestion was made in submissions on behalf of Mr Georgatos to the effect that communications of this kind might likely be filtered off by a judge's associate and therefore not brought to the attention of a judicial officer. This submission was fanciful. Communications about a pending action sent by, or on behalf of, a party to a member of a Judge's staff must be assumed as being very likely to be communicated to the Judge, not least for the staff member obtaining proper direction by way of the response to the communication.
(c)Communications to associates or other members of a judge's staff ought, always and without exception, to be on the basis of displaying the utmost courtesy. An insult to a member of a judge's staff conveyed by an email communication may very well, in different circumstances, be assessed as a contempt in the face of the court and then be punished accordingly (that not being a submission I was confronted with needing to resolve by the present motion).
(d)Inappropriate communications sent by litigants in person directly by email to the court and its officers are, regrettably, an increasing phenomenon of modern day litigation. This has eventuated as modern courts of the 21st Century are straining to be more efficient, and to assist the legal profession and community by facilitating more swift and efficacious levels of doing business. Experience shows that email communications to the court from members of the legal profession generally proceed displaying the highest standards of courtesy and propriety in their email communications. However what is a privilege by using email tends to break down as unrepresented persons, generally through unilateral ignorance, fail to exhibit proper standards of courtesy or propriety in their email communications to the court or judicial staff. A reasonable amount of tolerance obviously needs to be, and is, displayed from the court and its staff towards unrepresented persons acting genuinely, but out of their ignorance of the law. But the court should not have to tolerate the discourteous treatment towards its staff under such communications. Unrepresented parties who so conduct themselves are likely to be barred from accessing the privilege of using electronic communication, at least in my court and chambers.
(e)Mr Georgatos' two communications of 6 June 2014 being directed primarily to a judge's associate at a court are likely, from a defamation perspective, as was accepted by counsel for the plaintiffs, to enjoy the protection of an absolute privilege against an exposure to defamation liability as regards their pejorative content concerning the plaintiffs: see Gatley on Libel and Slander (12th ed, 2013), dealing with absolute privilege at [13.15].
(f)Notwithstanding an apparent immunity against defamation, such communications could nevertheless raise potential circumstances of an aggravation of damages, arising in existing defamation proceedings, towards the existing defamation causes of action, if proven at trial. During the course of argument counsel for the plaintiffs indeed foreshadowed implementing that approach. Consequently, it is likely that there will now be amendments to the plaintiffs' pleadings before trial to raise these very communications as circumstances of aggravation from a damages perspective.
I now turn to evaluate the contempt that is alleged under par 4.1 of the re‑amended motion of the plaintiffs. This concerns what was a subsequent email communication of 15 June 2014 sent by Mr Georgatos, but this time actually sent to the plaintiffs' solicitors, as well as being copied to my Associate.

Par 4.1: contempt averment: Mr Georgatos' email to Mr Bennett of 3.07 pm of 15 June 2014

The remaining contempt averment contends that Mr Georgatos' email of 3.06 pm on 15 June 2014 constituted a threat to his clients (par 4.1). As is contended, the threat was that if the plaintiffs proceeded further with their existing litigation, that is with this action CIV 1636 of 2013 - being these defamation proceedings, that Mr Georgatos would proceed to breach the personal undertaking which, as I have earlier related, Mr Georgatos had given orally to the court on 16 August 2013 - by publishing what would be damaging material about the plaintiffs.

Paragraph 4.1 of the re‑amended motion contends for a threat to breach Mr Georgatos' (earlier) undertaking not to publish further defamatory publications about the plaintiffs by publishing, making known, or communicating to third parties matters of and concerning the plaintiffs 'with the intention of thereby dissuading the Plaintiffs from continuing the within litigation'.
Essentially, the core of the par 4.1 contempt charge is that Mr Georgatos' email to Bennett + Co marked for the attention of the principal of that firm, constituted an improper threat by seeking to dissuade the plaintiffs from continuing on with the present litigation against Destiny Publications Pty Ltd and himself.
In rendering an assessment of the communication it is, as always, essential to see its overall context.
The first point to notice is that this email comes at a point in time some 11 days after the earlier exchange of emails of 6 June 2014, which unfolded in light of my Associate's communication of the special appointment set for a hearing of the strike out application against the defendants' defence, on 17 June 2014. That hearing, of course, as at Sunday 15 June 2014 was only then some two days away.
Both defendants were now legally unrepresented.
The full extent of two email communications of Mr Georgatos of 15 June 2014 is found as part of an email chain, within in Ms Randall's affidavit, exhibit 1, as the attachment, NER2.
Albeit it is not complained of, it is apparent that communication from Mr Georgatos to Bennett + Co began, at least from a time‑marking perspective that day, with Mr Georgatos' email - sent at 3.31 am on Sunday morning, 15 January 2014. This email provides the context for what followed and is complained of.
I will again set out below the content of the email communications, but again with a few necessary redactions I have needed to make at certain points for obvious reasons.
The subject of the first email looks to be a spontaneous communication Mr Georgatos sent by email under his chosen heading 'Subject: For your information - Matters at an end. Do not contact me again. Kindly'.
During the course of argument Mr Georgatos' pro‑bono counsel described this communication (ts 228) as 'unhinged'. It is hard to cavil with that characterisation, given its demonstrably incoherent content. I will set it out below again using my numbering of the relevant lines or paragraphs at the left margin for ease of identification.
This 3.31 am email and the ensuing email that is complained about sent at 3.06 pm the same Sunday, 15 June 2014, were both copied by Mr Georgatos by email to my Associate, as well as to Mr Rowsthorne.
I move to address the first email communication of 3.31 am.

Mr Georgatos' 3.31 am 15 June 2014 email to the plaintiffs' solicitors and others

Mr Georgatos' email of 3.31 am read:
1.To Karen, Martin, Jonelle, Lauren, Tania, and cc‑ed in Robert and John,
2.I consent to nothing other than the truth, this has been stated at all times. I consent to nothing about this or that being struck out. I will not participate in this charade and at the conclusion of this email, no‑one from any among you is to ever again make any contact with me - or from anyone associated with Bennett & Co in anyway whatsoever. You may not instruct anyone under circumstance to act on your behalf or to approach me or any member of my family - this will constitute the most serious harassment. Nor are your clients, Michael and Lillian to ever make any contact with me or have anyone act on their behalf to do so. This will constitute the most serious form of harassment.
3.I will never compromise or agree to anything less than the truth.
4.In the end, as litigation is a cruel weapon to defeat the other, rarely is it capable of justice or the truth, and especially when parties including legal firms are not working exclusively to this end. You do not have the right to work to the exclusive interests of your client, this is a given. It must be noted that Michael and Lillian have apparently achieved their purpose with your assistance to destroy any semblance of the truth, and to outlast The NIT. This is a given. Litigation is a disgraceful tool for the wealthy.
5.We did not get into Court despite that there should have been an urgency to do so. It does not matter that the body of evidence is huge and morally watertight, legally it has been screwed over by this sickening attrition that all of you should be ashamed of. I can never respect you, none of you. I wish you well in life always, but you are who are 24/7, you cannot be different people at different times.
6.Life goes by quickly, it is but a shade, we will be in our graves before we know, and all that matters is whether this shade we knew was meaningful or not. I have no other intention but to go to my grave with the honour that is within me at all times, all the rest I do not want to know.
7.Most of you know that Michael and Lillian are [redacted].
8.It was not the Wirlu-murra insiders, nor the Yindjibarndi, nor the Fortescue insider, nor the ORIC insider, nor native title lawyers and anthropologists in general who were the prime sources, yes they were many, but the prime sources were within the National Native Title Tribunal, and one person in particular, a high profile lawyer who was utterly appalled. Doesn't matter anymore.
9.I always keep my word, and I have kept my word to the Supreme Court and will always continue to do so with the exception if there were to have ever been something like for instance a Corruption Inquiry, but this of course will not occur, nothing will change and all will be well for those who go in the ways they do.
10.Martin, and company, as far as I am concerned, and you obviously think and consider otherwise, you have aided and abetted Michael and Lillian, but also because the system allows this. We would be better served as good human beings to campaign for changes to litigation so that it cannot be abused. I would prefer to see the end of litigation altogether, and let everyone account for themselves, where then would the corrupt have to hide. It would be in everyone's interests but this is mere wishing it were albeit.
11.I now ask you all to 'nick off' - you have for your clients what you want. I will not participate in any way in this charade and in this disgrace. Robert, you need to inform Justice Martin that it is over in terms of any participation on my part and has been for quite some time. I do not speak for anyone else, only myself. I will never pay anything in terms of any bullshit costs, I give everything I have to those in need. It will not happen, and I insist that the Supreme Court, in this matter, never contact me again, nor in any matter associated with this matter. I know Justice Martin knows the truth and I understand his predicament but I will not do this crap, not for anyone. I remind that I said and before Justice Martin, and I have to live by this, that I can never lie within the Supreme Court, it is not my way, so I cannot play a game that diminishes the truth because Michael and Lillian tragically want it or deliriously need it so.
12.I am travelling at this time on matters more important and humane than in dealing with all this.
13.If we cross paths in life, whether at crappy legal functions or other meets. look away from me, do not offer me your hand, do not speak to me unless you want to apologise to me, all of it bar an apology will be the most serious harassment.
14.If you want to do something worthwhile instead of dancing around in make believe power relations and in forever making more of a quid than you deserve, then come along with me and help the homeless, help house a few more families, come along with me and do things that matter. At this time my time is dedicated to those most vulnerable, to those prone to premature deaths, unnatural deaths and suicides. I have no time for Michael's and Lillian's lies and disgrace.
15.I am not to be contacted by email, not to be contacted by mail or phone, not by proxy, not by anyone on your behalf whomsoever that maybe, not by you in anyway, I cannot make it any clearer.
16.Wish you all, including Michael and Lillian, and of course Justice Martin, Robert and Olivia, good stead and wellness,
17.Goodbye, kindly, Gerry
Mr Bennett drew my attention to this email, as context of his overall argument about an asserted threat against his clients by Mr Georgatos. He directed me to what appears under par 9, as regards essentially foreshadowing a potential for Mr Georgatos to resile from and to breach his undertaking of 16 August 2013 given to the court (ts 195).
That first email communication then led to a communication sent to Mr Georgatos at about 11.29 am on Sunday 15 June 2014, by Mr Bennett. Mr Bennett advised in these terms:
Gerry
Opting out of Supreme Court proceedings as you must know is your option. The consequence is that I will continue the action on behalf of my clients and seek a judgement against you. That will have its own further consequences.
At each step I will notify you so that the responsibility for what follows is clearly with you. I will not accept your stipulation not to contact you again and neither will any of Bennett + Co staff.
You should be aware that the matter is in Court on Tuesday. The choice of whether to attend is yours - the consequence of not attending is your responsibility.
If there are higher priorities in your life then good luck with those and I hope you succeed.
Regards
Martin Bennett
Principal
That reply from Mr Bennett then led to an incendiary emailed response from Mr Georgatos. This is the actual email communication complained of as being contemptuous, by par 4.1 of the motion.
The response is under Mr Georgatos' email of Sunday 15 June 2014 at 3.06 pm was sent to Mr Bennett and to other solicitors at that firm (Ms Di Lena, Ms Onofaro and Ms Separovich). The email was also copied to my Associate and to Mr Rowsthorne.
The subject heading of this communication was 'Re: For your information - Matters at an end. Do not contact me again. Kindly'.
For ease of reference, I will continue numbering each relevant paragraph and continuing on the chronological sequence from the earlier 15 June 2014 email.
Again I have redacted some egregiously offensive passages concerning the plaintiffs.
This 3.06 pm email read:
18.Listen here mate, you were warned to not threaten me any further and through me, my family. Piss off.
19.For the record, you have acted in a threatening manner when warned and prohibited from contacting me. I will leave it for you and Justice Martin to work out the next steps, however rest assured I will not be part of anything whatsoever, I conscientiously object. I do not do charades and chicanery.
20.Martin, I have no respect for you, other than as a human being wish you well-being and good stead. Your worthless life is your sad state of affairs, your example to others is your responsibility alone.
21.Take your cash register somewhere else though your miserable work should not befall anyone.
22.You want to be noble, then step up as a campaigner from the inside and do something refreshingly remedial in reference to the misuse of litigation. How many lives have you damaged, how much truth has been suppressed because of you? I don't know, only you know, but I know of what litigation does, for those who afford it.
23.You were advised to not contact me in anyway but you did with immediate and total disregard for my family. Rest assured you are BLOCKED from all emails here on wards, not that I have read most of the garbage you have sent or given cause to. Your little team will be BLOCKED from my email account within minutes of the transmission of this email. You lot, spend your time doing up cowardly affidavits about this, that's up to you. At least you may have something to work with unlike the [redacted] Michael who [redacted], and as the [redacted] whom abuses various disadvantage and cultural barriers to [redacted], everyone knows [redacted]. The [redacted] has no shame, does them in entirety, with no regard for the law he can afford at will.
24.For the record, I have only ever received two documents from you mob by mail, and one was around April 30 last year at the address I was then living at. I have received nothing else. Despite updating my address you have consistently mailed your filth to another address, and which I have never received.
25.For the record, I have not always known about your hearing dates. Apparently neither has John, but it does not matter.
26.Mate, don't ever threaten me again about 'consequences'. I am investing a little faith in Justice Martin that he will not let you and [redacted] Michael and Lillian get away any further with this bullshit, and that matters are at an end. I wrote to you unless there is a Corruption Inquiry, which will never happen, then I will keep my word, something that the [redacted] you represent may and will never understand what this means.
27.You all may think we're prime for you to go in for the 'kill" however I've given your [redacted] clients a break here - push it this week and everything is off, I will not be required any longer to have the truth suppressed, push it this week and then it's over, the Court and you will have disrespected myself and my family and then that's it, enough is enough, and the truth will be known to the relevant parties, I will no longer protect my sources - because the truth should matter above all when in the event you are attempting to go in for a filthy kill. How dare you threaten me when the truth is 100 per cent on my side, my going off at you and your [redacted] clients in this email does not diminish the truth.
28.I put only one offer to you, and the offer is non-negotiable, but you will have to phone me - and only to arrange the meeting - because you will be BLOCKED to my email account following this transmission. On the condition that Michael and Lillian and you and the Justice are present, I will play the full recordings from two individuals, two hours from the NNTT lawyer, and another two hours from another individual. That is the justice mate. I said to you that matters are at an end and I would keep my word to the Supreme Court, however if you attempt to wreak 'consequences' on myself and attempt to go in for the kill on the National Indigenous Times, then I will do everything to protect the National Indigenous Times. You will not destroy the newspaper that John has served so many communities with a quality say, nor impart any consequence upon myself. Let us see if Lillian wants to keep on going with Michael's agenda, and those others he is also acting for, after listening to what's in the recordings, and by whom. If you think I relied on [redacted], you are so very wrong.
29.You and I both know, and I believe Justice Martin knows, that Michael [redacted], but so too has Lillian been caught up in the [redacted].
30.I've given your [redacted] clients who you should be ashamed to be representing in this manner a break, because they are not the only [redacted] in the world, they're a dime a dozen, although in the Native Title community Michael is the [redacted], but so be it, people know, you know, the [redacted] is the [redacted] of the Pilbara.
31.How dare you contact me and how dare you threaten me? Push it and well maybe you personally do not care but Lillian and [redacted] Michael most certainly may. Check with them first before you tell me what you intend to do.
32.You cannot hurt me, you cannot do 'consequence' - take your power relations, your filthy quid and stick it up your proverbial arse.
33.Do some good in this world mate, and leave it a better place, you've scored a benefit from it, think of all those others who were not privileged and who did not hit the world in the ways you did. You make me sick, but I do not hate you, never make that mistake, I do not hate you, just despite what you are about and why.
34.Unless Lillian is prepared to hear the recordings in front of Justice Martin in open Court then let us organise this asap, if not then piss off.
35.Matters at an end. Do not contact me again. You and your crew are BLOCKED.
36.Kindly, much well-being, good stead in your lives, all the best, Gerry
A number of preliminary observations may be rendered about the 3.06 pm email - putting to one side its profanity, incoherence and gratuitously insulting content. Once again, of course, had a legal practitioner sent a communication of this character to someone, they would likely face a serious unprofessional conduct sanction.
I also put aside for the moment issues over the derogatory character of this communication as regards the plaintiffs, which caused me at places to redact its content. Unlike the 6 June 2014 emails, this communication was not primarily sent to the court. Hence, a question arises over whether it would enjoy the same protection of an absolute privilege against defamation as the earlier emails. I return to that question later in the reasons.
First, I note again the rearticulation (already witnessed as at 6 June 2014) of Mr Georgatos' misconceived assessment that he held the power to unilaterally end the defamation action brought against him by the plaintiffs. See, for instance, the email's subject heading and pars 26 ‑ 35.
Second, I must dismiss at this point a submission of pro‑bono counsel for Mr Georgatos that it ought not be inferred that this communication ever came to the attention of the plaintiffs, ie, to Mr Bennett's clients. I find it most certainly did. That outcome, in my view, is the more than foreseeable consequence of Mr Georgatos sending communications of this nature - which would inevitably require a taking of instructions from the client, in terms of the formulation of a response by the recipient lawyer. I do accept however that this highly offensive communication would have been more damaging, had it been sent to Mr Bennett's clients direct, rather than to him. But that is hardly a badge of honour for Mr Georgatos.
Again, however, the essential question for me to resolve is whether the 15 June 2014 email communication of 3.06 pm is contemptuous, by reason of it constituting an attempt to bring illegitimate pressure to bear upon the plaintiffs (albeit through their lawyers) to end the action on the basis of a threat - essentially a threat that Mr Georgatos would act to dishonour his undertaking to the court given on 16 August 2013 and proceed to publish further defamatory matters about the plaintiffs.
As regards that core issue, it must be said at the outset that within its incoherent and garbled content this offensive 3.06 pm communication does manifest a somewhat threatening tone.
Taken alone, the content at pars 26 ‑ 28, particularly phrases at par 27 'I will not be required any longer to have the truth suppressed', 'push it this week and then it's over', 'the Court and you will have disrespected myself and my family and then that's it, enough is enough, and the truth will be known to the relevant parties', and 'I will no longer protect my sources - because the truth should matter when in the event you are attempting to go in for a filthy kill' are concerning as to just what Mr Georgatos was saying.
Likewise, par 31 proceeds to unleash another rant, suggesting adverse unspecified consequences for the plaintiffs, if they were to 'push it'.
As summarised by the plaintiffs' written submissions of 1 July 2014, the contention as regards this asserted contempt is:
Whilst it is not entirely clear what [Mr Georgatos] is threatening to publish (other than what can only be inferred as defamatory material based on the inflammatory and derogatory language used), the pressure to dissuade the plaintiffs from continuing with the litigation by undermining their sense of security acquired from [Mr Georgatos'] undertaking to the court amounts to improper pressure that has a real (or clear) and definite tendency to interfere with the course of justice.
The insulting and aggressive tone of the emails (published in circumstances where one of the plaintiffs has expressed a particular vulnerability) is such as to render the emails as contemptuous and exacerbates the nature and severity of the threats [35] ‑ [36].

On the other hand, pro‑bono counsel's written submission for Mr Georgatos was this:
There has been no actual breach of any undertaking: just an obscure and vague unparticularised commitment to "doing everything" to protect the National Indigenous Times' in certain circumstances, which were yet to eventuate.
Even if there were a threat to breach an undertaking, it would not constitute an actual breach of the undertaking; moreover the undertaking was not given to the Court but in Court, to the other parties, in circumstances which lacked the solemnity and formality usually accompanying the giving and recording of an undertaking to the Court. The undertaking was not reduced to writing or otherwise formalised and rendered readily comprehensible or enforceable in its terms [21] ‑ [22].
Given this submission it is necessary to divert to render some brief observations concerning the nature of an undertaking given to and accepted by a court, and which is received, as it was here, in lieu of the court proceeding to possibly issue orders by way of interlocutory injunction against a defendant. In Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150, Gibbs CJ, Stephen, Mason and Wilson JJ observed:
An undertaking to the court is given in lieu of an injunction and, if broken, is treated as the equivalent of an order for the purpose of enforcement; it may therefore be enforced in the same manner as an injunction: Milburn v Newton Colliery Ltd (1908) 52 Sol Jo 317; London and Birmingham Railway Co v Grand Junction Canal Co (1835) 1 Ry & Can Cas 224, 241; Re National Federated Electrical Association's Agreement (1961) LR 2 RP 447, 452; Biba Ltd v Stratford Investments Ltd [1973] Ch 281, 285‑287.
As an undertaking is given in lieu of an injunction and is enforceable in like manner, the principles which govern the grant of an injunction by a court must guide it in deciding whether it should accept an undertaking (164 - 165).
It is also necessary to dispose of another misconceived submission, to the effect that the undertaking accepted by the court on 16 August 2013 was obscure and vague, or that the undertaking lacked solemnity and formality. I earlier mentioned the transcript of the hearing before me on 16 August 2013 had been introduced into evidence in its entirety, as exhibit 6. It is clear beyond argument from the transcript that Mr Georgatos in person volunteered his undertaking, albeit unrepresented at the time, not to publish anything further against the plaintiffs and that his undertaking was accepted by the court. Whilst it is true the undertaking was submitted verbally, the circumstances associated with Mr Georgatos' lack of legal representation at the time and his somewhat unexpected (to me, having prepared for a full scale hearing of the arguments) offering of his undertaking when it emerged, essentially explain themselves. For that reason I ordered that a copy of the transcript of that morning's proceedings be obtained and provided to Mr Georgatos without charge - so he would have a clear written record of what he had said verbally and committed to that day.
I return then to the central issue under evaluation: whether the 15 June 2014 3.06 pm email constituted a threat as an attempt to influence the plaintiffs not to proceed further against him.
In that respect I would, of course, accept the submission that a party who volunteers an undertaking to a court is always at liberty to approach the court later and seek leave to withdraw their undertaking. But in present circumstances it is clear that had Mr Georgatos taken that course, he would then, almost inevitably, have revived the plaintiffs' application for an interlocutory injunction against him - that application against him, in effect, having been resolved, upon the basis of receiving his undertaking, in lieu of the court issuing an injunction, on 16 August 2013.
The question then is, within what was overall an incoherent, offensive and profane rant, was Mr Georgatos threatening to break his undertaking - in order to apply illegitimate pressure to the plaintiffs to cause them to desist in their defamation action against him, and particularly desist from their strike out application against both defendants' defence, which was looming to be heard before me, on Tuesday 17 June 2014?
Again it is important at the level of a criminal contempt allegation to remember that an assessment should be made on the basis of what is in effect a charge being assessed as proven against Mr Georgatos at the standard of beyond reasonable doubt.
In the end, I am again not satisfied to that high standard that what Mr Georgatos communicated on 15 June 2014 satisfies that threshold. I reach that conclusion essentially upon the basis that clearly misconceived in Mr Georgatos' mind as the concept was, Mr Georgatos at critical points in the email, after foreshadowing what might otherwise be assessed as some kind of defamatory publication threat against the plaintiffs, immediately counters that position by suggesting some sort of process and whereby there would be a meeting between the plaintiffs and their lawyers and, critically, with the Judge present. See for instance:
On the condition that Michael and Lillian and you and the Justice are present, I will play the full recordings from two individuals, two hours from the NNTT lawyer, and another two hours from another individual (par 28).
In a legally ignorant and misguided way, what Mr Georgatos then as a litigant in person could have been saying was that he was proposing to play his 'full recordings' in some sort of regulated court environment with me, as the designated Judge being present. Nonsensical as that proposal was, it rather suggests against me finding a scenario of threatened unilateral publication of something more by him against the plaintiffs, thereby breaking his 16 August 2013 undertaking. It does seem that, as far as he was concerned at least, something had to occur before the judge, at least on one reading of the otherwise incoherent email.
It is at this point that an observation by Mr Georgatos' pro‑bono counsel that a party who has given a personal undertaking to the Court is always at liberty to approach a Court later, and seek to withdraw it, must be weighed.
In this instance, I am just persuaded, at the end, to afford Mr Georgatos the benefit of the doubt and to infer that this process with the judge present was all he was proposing.
After some concerning observations at pars 30 ‑ 32, Mr Georgatos again lands at his par 34 - where he refers, again in a misguided way, to Ms Maher being 'prepared to hear the recordings in front of Justice Martin in open Court'. Again that is capable of being read as suggesting that the Court will first approve what he proposes by way of publication, before he acts.
In the end, therefore, I am not satisfied beyond a reasonable doubt that there was a unilateral threat from Mr Georgatos to immediately publish something more that was defamatory against the plaintiffs, by way of his dishonouring his 16 August 2013 undertaking to the Court, without first involving the Court and, in effect, seeking, albeit very clumsily, the Court's leave to withdraw his undertaking. On that basis, I must dismiss this charge as well, as it is not proven to the criminal standard required.
I would add, however, the following observations:
(a)Once again, bearing in mind the pending underlying defamation proceedings the very nature of this 15 June 2014 communication on its face looks to be capable of being raised and relied upon as an aggravation of the damages suffered by the plaintiffs, if they do succeed in making good their defamation causes of action against the defendants at a trial.
(b)Beyond aggravation, however, this email publication which was sent primarily to the plaintiff's solicitors, looks to me to be outside the scope of the absolute immunity that would otherwise protect a defamatory communication to the Court. This is so even though a copy was emailed to my Associate.
(c)Section 28(2)(b) of the Defamation Act 2005 (WA) would not appear to be engaged as regards (i), (ii) or (iii); and see Gatley on Libel and Slander (12th ed, [13.16]).
(d)The 15 June 2014 email communication, unlike the 6 June 2014 emails, was not an in‑court or to the court communication, notwithstanding it was forwarded to a judge's associate by email. Copying material by email to the court is no panacea for what otherwise would be unprotected defamatory communications. However, the communication to Mr Bennett could possibly attract the protection of a qualified privilege against defamation.
(e)It is also necessary to reject another contention of pro‑bono counsel for Mr Georgatos, to the effect that this communication would not likely have been communicated to the plaintiffs and therefore could not constitute a threat to them. As I earlier indicated it is inevitable in my view that a communication of this kind would be communicated, since it would require instructions in terms of response. I accept however that from the perspective of establishing a contempt, the making of the communication to the plaintiffs' solicitors rather buttresses my end conclusion that, in a misconceived way, Mr Georgatos was not going to unilaterally breach his undertaking, or at least would not act before seeking to take some step concerning it, before a judge.
(f)Finally, for completeness, I reject the suggestion by pro‑bono counsel that in the face of a threatened breach of a voluntary undertaking accepted by the Court, that the proper course for the plaintiffs would be to apply to Court for an injunction. Bearing in mind the observations which I have mentioned by reference to Thomson Australian Holdings v Trade Practices Commission, a breach of an undertaking is as equally enforceable by a contempt sanction, in the same fashion as the breach of a Court ordered injunction. The present, of course, is not one of an asserted actual breach of Mr Georgatos' undertaking thereby requiring any sanction.
(g)Finally, and for the record, in case it is in any way presently unclear to him, it must be firmly stated that Mr Georgatos' undertaking of 16 August 2013 remains in force and remains fully effectual, it not having been the subject of any application for leave for it to be withdrawn.

Costs orders: prima facie position

The plaintiffs have therefore failed ultimately in establishing beyond reasonable doubt that the contempt offences identified under pars 4.1 and 4.2 of their motion have been established. Nonetheless they have established upon this application what is undeniably some highly unsatisfactory conduct on Mr Georgatos' part.
In all the circumstances I propose, as regards costs, prima facie, to follow the approach of Evatt J, seen in one of the early authorities referred to me by pro‑bono counsel; namely, R v Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248. There, Evatt J had dismissed a contempt motion. But in doing so he observed that he also exercised his discretion by refusing to make any order as to the costs of the successful respondents on that application (259). That course is appropriate here, in my view, in light of the precipitous nature of the email communications of Mr Georgatos.