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Gallagher v Destiny Publications Pty Ltd

Gallagher v Destiny Publications Pty Ltd

Case [2015] WASC 40 4 February 2015

Contempt of Court

Abuse of Process

Admissibility of Evidence

Criminal Law

Type to search within this case.

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gallagher v Destiny Publications Pty Ltd

Details

AGLC: Gallagher v Destiny Publications Pty Ltd [2015] WASC 40
Case: [2015] WASC 40
Decision Date: 4 FEBRUARY 2015

CaseChat Overview and Summary

In the Federal Court of Australia, Gallagher sought a contempt order against Destiny Publications, alleging that the latter's emails to the judge's associate contained defamatory imputations that interfered with the due administration of justice. The dispute arose from ongoing litigation where Destiny Publications had allegedly sent emails to the judge's associate, who did not forward them to other parties. Gallagher argued these emails contained defamatory imputations that interfered with the due administration of justice. Additionally, Destiny Publications was accused of sending emails to solicitors for opposing parties, which Gallagher claimed constituted a threat to breach an undertaking to the Court and a threat to influence the plaintiffs not to proceed with the substantive matter.

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