(1) A declaration that the first defendant, Gary Henderson, is guilty of contempt of Court in that on 21 August 2024, in disobedience of Order 6 made by this Court on 17 September 2021, he published via Facebook Messenger matter to the Wandandian Macropod Rescue and Rehabilitation Centre that conveyed the same or substantially similar imputations to the publications complained of in the substantive proceedings.
(2) A declaration that the first defendant, Gary Henderson, is guilty of contempt of Court in that on and between 2 October 2024 and 8 October 2024, in disobedience of Order 6 made by this Court on 17 September 2021, he published on the Facebook page “the Cobargo/Bermagui notice board” matter that conveyed the same or substantially similar imputations to the publications complained of in the substantive proceedings.
(3) A declaration that the first defendant, Gary Henderson, is guilty of contempt of Court in that on 2 October 2024 and continuing, in disobedience of Order 6 made by this Court on 17 September 2021, he published on the Facebook page “beware of Wild2Free” matter that conveyed the same or substantially similar imputations to the publications complained of in the substantive proceedings.
(4) The Court finds the first defendant, Gary Henderson, guilty of contempt and, in particular, guilty of Charge 1, Charge 2 and Charge 3 attached to the motion dated 17 October 2024.
(5) The question of penalty, if any, is reserved for a date to be fixed after consultation with the parties.
Catchwords:
CONTEMPT — civil contempt — breach of orders — Harman undertaking — distinction between civil and criminal contempt — where orders made to restrain defendant from publishing any matter conveying the same or substantially similar imputations to the publications complained of pending the hearing of this matter — where publications were made after the order — meaning of “pending the hearing of this matter” — defendant found guilty of contempt
DEFAMATION — defamatory matter — particular imputations — fraud — misuse of charitable funds for personal financial benefit — misappropriation of funds — misleading people for the purpose of raising funds — registered charity — Wild2Free — wildlife care
[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.
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AGLC
Harvey v Henderson (No 2) [2025] NSWSC 764
Case
[2025] NSWSC 764
Decision Date
CaseChat Overview and Summary
In the case of Harvey v Henderson, the plaintiffs, Harvey, sought relief against the defendant, Henderson, for breaches of orders made by the Court. The orders restrained Henderson from publishing any matter conveying the same or substantially similar imputations to publications previously complained of in defamation proceedings. Despite the orders, Henderson published material that conveyed similar defamatory imputations, leading to the plaintiffs' application for a finding of contempt. The Federal Court of Australia was tasked with determining whether Henderson's actions constituted contempt of court and, if so, whether it was civil or criminal contempt.
The primary legal issue before the Court was the interpretation of the phrase "pending the hearing of this matter" within the context of the orders. The Court needed to determine the temporal scope of the orders and whether Henderson's publications fell within that scope. Additionally, the Court had to distinguish between civil and criminal contempt, considering the implications of each for Henderson's liability. The plaintiffs argued that the orders were clear and that Henderson's actions constituted civil contempt due to the breach of the orders.
The Court found that the orders were intended to remain in effect until the defamation proceedings were concluded. It held that "pending the hearing of this matter" meant until the final determination of the defamation claim. Consequently, Henderson's publications after the order were considered breaches of the orders. The Court further held that the contempt was civil in nature, as it arose from the breach of the orders rather than any inherent disregard for the Court's authority. Therefore, Henderson was found guilty of civil contempt.
The Court ordered Henderson to pay damages to the plaintiffs for the breach of the orders. Additionally, the Court directed Henderson to publish an apology and retraction of the defamatory material in specified media outlets. This included the publication of the Court's findings and the reasons for the orders, ensuring that the defamatory imputations were corrected and the plaintiffs' reputations were vindicated.