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 PlaintiffAND
DESTINY PUBLICATIONS PTY LTD
First DefendantGERASIMAS 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
KENNETH MARTIN J
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- AGLC
- Gallagher v Destiny Publications Pty Ltd [2015] WASC 40
- Case
- [2015] WASC 40
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the emails sent by Destiny Publications constituted contempt of court. Specifically, the court had to determine if the emails to the judge's associate, which were not forwarded, tended to interfere with the due administration of justice. The court also needed to decide whether the emails sent to opposing parties constituted a threat to breach an undertaking to the Court or a threat to influence the plaintiffs. Furthermore, the court considered the procedural aspect of whether the contempt application should have been made by an originating motion rather than a notice of motion and whether it was prudent for the case manager to determine the contempt application.
The court held that the emails did not constitute contempt of court. It found that the emails to the judge's associate did not tend to interfere with the due administration of justice as they were not forwarded to other parties and did not contain any actionable content. Additionally, the court ruled that the emails sent to opposing parties did not constitute a threat to breach an undertaking to the Court or a threat to influence the plaintiffs. The court also concluded that the case manager was not the appropriate forum to determine the contempt application, suggesting that it should have been made by an originating motion. Consequently, the application was dismissed.
The court did not make any orders against Destiny Publications, as it found no contempt of court had occurred. The decision underscores the importance of ensuring that any communications to judicial officers or their associates are handled appropriately to avoid potential contempt proceedings. The case highlights the procedural requirements for making a contempt application and the need for careful consideration of the content and context of communications in litigation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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