Harvey v Henderson (No 2)

[2025] NSWSC 764

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Harvey v Henderson (No 2) [2025] NSWSC 764

Hearing dates:

12 June 2025

Date of orders:

17 July 2025

Decision date:

17 July 2025

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(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

Cases Cited:

Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201

Anderson v Hassett [2007] NSWSC 1310

ASIC v Matthews [2009] NSWSC 77; (2009) 69 ACSR 559

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483

Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321

Esso Australia Resources Limited v Plowman (1995) 183 CLR 10

Green v Penzance 6 App. Cas. 657

Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16

National Bank (NAB) Ltd v Juric [2001] VSC 375

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v Canterbury Archbishop 28 LJQB 154

Salt v Cooper (1880) 16 Ch D 544

SZTAL v Minister for Immigration (2017) 262 CLR 362; [2017] HCA 34

Talacko v Talacko [2009] VSC 387

Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3

Wyszenko v Wyszenko [2012] NSWSC 732

Category:

Procedural rulings

Parties:

Laurae Harvey (Plaintiff)
Gary Henderson (Defendant) (self-represented)

Representation:

Counsel:
R Rasmussen / A Cheema (Plaintiff)

Solicitors:
Kalantzis Lawyers (Plaintiff)

File Number(s):

2020/348051

Publication restriction:

N/A

JUDGMENT

1. HIS HONOUR: By notice of motion, filed in accordance with the rules and setting out a charge, the plaintiff prosecutes the first defendant, Gary Henderson, for contempt. The alleged contempt is a breach of orders made by the Court issued on 17 September 2021 by consent of the parties to the substantive proceedings.

2. The substantive proceedings are for damages and injunctive relief for defamation published by the defendants. Interlocutory orders were sought by a notice of motion and, on 17 September 2021, the parties agreed on the terms to resolve the application for interlocutory proceedings by an agreement that the Court would issue orders restraining the defendants in terms which the Court will set out shortly.

3. The initial charges for contempt consisted of three alleged breaches of the orders of 17 September 2021 by the publication of material conveying the same or substantially similar imputations to the publications complained of in the substantive proceedings. It also charged two breaches of the Harman undertaking being what is described by the prosecutor as the implied undertaking not to disclose documents or information obtained in proceedings for any purpose other than that for which it was given during the proceedings.

4. The Harman undertaking, so called, is not an undertaking in the ordinary sense, but a requirement on parties receiving documents as a consequence of the compulsive powers of a Court not to publish such documents. The requirement does not apply in circumstances where the document produced is admitted into evidence, and by that process, becomes a public document.

5. The prosecutor does not press that which is described as Charges 4 and 5, being the breaches of the Harman undertaking. Essentially, the Harman undertaking, named after the judgment describing it, prohibits the disclosure of information provided under compulsion of a court order from a publication by the party receiving the information, without leave of the court, or the use of it for any purpose other than that for which it was given unless and until it is received into evidence. [1]

   1. Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125 at 154-155; [2008] HCA 36 at [96]; Esso Australia Resources Limited v Plowman (1995) 183 CLR 10 at [36].

6. Once a document provided under compulsion becomes evidence in the proceedings or the contents of it is disclosed in proceedings, the document and/or its contents become public, and the Harman undertaking does not apply to prevent its publication. The charges preferred in Charges 4 and 5 for breach of the Harman undertaking relate to the terms of a lease which was produced and was tendered and marked in evidence in the substantive proceedings.

7. There might have been some issue as to the timing of the publication, as against the document becoming public as to the Charges in 4 and 5. Those issues need not trouble the Court further because Charges 4 and 5 are no longer pressed by the prosecutor.

Procedural history

8. The plaintiff in the substantive proceedings, who seeks to prosecute for contempt in these proceedings, commenced an action against the defendants seeking damages for alleged defamatory content and seeking orders restraining the defendants from further publishing material that conveyed the same or substantially similar imputations.

9. The substantive proceedings were commenced by a Statement of Claim on 8 December 2020. At the time, the plaintiff was represented by Solon Lawyers.

10. On 15 September 2021, the principal of Solon Lawyers, Mr Konstantine Green, requested in writing that the defendants consent to certain orders. The correspondence was addressed to Ms Esther Colson of David Griffiths Lawyers, who were then representing each of the defendants.

11. On 16 September 2021, the defendants’ solicitor responded to the effect that the application for restraining orders needed to be resolved by the Court. In correspondence later on the same day, the aforesaid solicitors indicated that they, by then, had received instructions to consent to the restraining order.

12. Later on 16 September 2021, the plaintiff’s solicitor sent signed short minutes of order to the defendants’ solicitor, which were returned signed by return mail. The first affidavit of Vasilios Kalantzis, sworn 17 October 2024, annexes a copy of the signed consent.

13. On 17 September 2021, the Court issued orders, by consent, reflecting the consent signed by solicitors for each of the parties. Those orders were in the following terms:

“(1)   The Plaintiff to file and serve amended statement of claim by 1^st October 2021;

(2)   The Defendants to file and serve defence to amended statement of    claim by 15^th October 2021;

(3)   The Plaintiff to request further and better particulars by 29^th October    2021;

(4)   The Defendants to respond to further and better particulars by 12^th    November 2021;

(5)   The Plaintiff to file and serve Reply on or before 26^th November 2021;

(6)   The Defendants be restrained, pending the hearing of this matter from    publishing any matter conveying the same or substantially similar    imputations to the publications complained of;

(7)   The directions hearing of the 17^th September 2021 be vacated;

(8)   Leave to relist on two days prior notice.”

14. The orders were made by the Court by Sackar J as part of the management of the Defamation List.

15. On 29 September 2021, the plaintiff filed an Amended Statement of Claim pursuant to the orders issued and recited above. The Amended Statement of Claim adopted and pleaded the contextual imputations pleaded in the Defence.

16. The hearing of the substantive matter commenced on 15 April 2024 and concluded on 12 June 2024, at which time judgment was reserved. The substantive proceedings had been listed and heard at a number of directions hearings prior to 15 April 2024.

17. On 22 August 2024, the plaintiff became aware of a Facebook message sent by the first defendant to the Wandandian Macropod Rescue & Rehabilitation Centre on 19 August 2024 which read, “Enjoy having alook theough [sic] the scam Wild2Free lease arrangement”. The message attached a copy of the lease between the plaintiff and Wild2Free, the registered charity run by the plaintiff. This publication is Charge 1 in the plaintiff’s Notice of Motion.

18. On 26 September 2024, the plaintiff was copied into an email sent to each of the office bearers of Wild2Free by the first defendant which indicated that he intended to send information and documents discovered in the substantive proceedings and obtained by subpoena to the Australian Tax Office and NSW Police Fraud Squad.

19. On 4 and 5 October 2024, the plaintiff became aware of two posts on the Facebook group “The Cobargo/Bermagui Notice Board” made by the first defendant. The first is a comment on a post seeking volunteers, which comment says, “Can I rent my land to the charity for $50,000 a year like Laurie Harvey does?”. The second is an anonymous post allegedly made by the first defendant in the following terms:

“Just a heads up if anyone contemplates donating to the charity below run by Laurae Harvey from her home at Runnyford. Documents filed with ACNC showed Wild2FRee received donations of $80,000 in 22/23, yet most of that ended up in her own bank account through a ‘land lease’ deal where she rents part of her bush block to the charity for around $50K per year. It’s an absolute disgrace.”

Together, the two posts are Charge 2 in the plaintiff’s Notice of Motion.

20. On 8 October 2024, the plaintiff became aware of a Facebook page called “Beware of Wild2Free” which contained posts about the plaintiff and Wild2Free. Charge 3 in the plaintiff’s Notice of Motion contains three posts made on the Facebook page.

21. The first post was made on 2 October 2024 and reads:

“Intro: Kangaroo Sanctuary – We raise money under the guise of donations being used directly to help kangaroos but instead pay most of them to our President for her personal living expenses.”

22. The second post was made on 5 October 2024 and was in the same terms as the anonymous post extracted above at paragraph [19].

23. The third post was made on 10 October 2024 and is in the following terms:

“And as predicted by this page the sheer scale of the corruption and dishonest conduct by the board members of the Wild2Free charity is now being revealed. The Wild2Free charity itself after doing nothing for the last few years in regard to animal care, is cutting back to do even less of nothing. Meanwhile the charity is saddled with a massive lease obligation involving the payment of hundreds of thousands of dollars to non [sic, read ‘none’] other than the president Rae Harvey for the next seven years under the corrupt ‘land lease’ deal. We’ll be watching closely to see how the board members responsible for that outrageous lease extract the charity and on what terms. Of course some have such as Margaret Park, Peter Sharp, Simon Orbell and Yana de Valle have done their devious deeds and cut and run but some stay and will hopefully be held accountable. Our eyes are on you Anita Davies-Morgan, Lynne Gillam and Leigh Blakie. It was obvious right from the start you failed to act in the best interests of the charity, merely bowing to the wishes of president Harvey to send donations meant for the care of animals into her own bank account.”

24. On 25 October 2024, the foregoing publications, being the initial contempt charges, came before the Court together with an application for the production of material relating to alleged contempt.

25. The Court as presently constituted issued orders prohibiting the first defendant, Mr Henderson, from deleting anything from his social media accounts, computers etc; prohibiting the dissemination, communication or publication of any documents reproduced on discovery, notice to produce or subpoena by the plaintiff, if such documents had not already been tendered in evidence; granting leave for the plaintiff to seek urgent orders restraining Mr Henderson from contacting, harassing, intimidating or threatening the plaintiff; and allowing the first defendant to file written submissions relating to the issue of privilege against self-incrimination in relation to the production of documents. The last-mentioned order was the product of an issue raised by the Court, given the indication that contempt proceedings were contemplated and that documents produced may arguably impinge against an arguable privilege against self-incrimination. Nevertheless, no application was made as to documents being incriminating.

26. On or about 31 October 2024, the attention of Mr Kalantzis was drawn to a message purportedly sent by the first defendant to Ms Claire Pragnell through Facebook. Mr Kalantzis was provided with a screenshot of the message. The message was in the following terms:

“Yes Claire why would the charity spend over $400,00 [sic] on a building and put in (read: it) on land they don’t own? Now lets see what happens. Will it be donated by someone who actually does rescues [sic] and treat injured animals, or will Harvey look to line her own pocket again? She has a [sic] been a net negative to wildlife care in this area and many people will be glad to see the back of her.”

27. On 1 November 2024, the plaintiff became aware of further posts about the plaintiff and Wild2Free on the Facebook page “Beware of Wild2Free”. The Facebook post contains the following terms, which are the same as the third post in Charge 3 of the Notice of Motion and become available when the mouse is placed upon the photograph of the plaintiff:

“Kangaroo Sanctuary – We raise money under the guise of donations being used directly to help kangaroos but instead pay most of them to our President for her personal living expenses.”

28. A further comment or post on the Facebook page reads:

“So after collecting over $700,000 in bushfire in donations in 2020 and at least another $300,000 since that time, Wild2Free is now apparently closing down. The ‘Forever Safe’ moto on their webpage is now proven to be yet another marketing ploy, and the shutdown confirmation the charity was never anything more than a fundraising vehicle for Harvey. So to the Board Members, you were a [sic] quite happy to take in and spend the massive public donations, now are you going to tell the donating public what is going to happen to the hundreds of thousands of dollars the charity has in assets??”

29. On 4 November 2024, the first defendant sent another message to Claire Pragnell, which was in the following terms:

“Well what do you know? The charity’s main asset is being sold, which is hardly surprising given its part of Harvey’s house. Can you help us inform the public as to whether the charity will receive any money back and if so how much ? Or has Harvey pulled another scam and taken possession of the pod which you said in court was transportable?”

30. On 5 November 2024, the first defendant sent an email to an animal rescuer at Wildlife Rescue South Coast Inc which read:

“I write to you on this occasion to correct mis information supplied to you by Mr Kalantzis, the lawyer for Rae Harvey.

Despite the assertion by Mr Kalantzis about a Supreme Court injunction being in place for myself and Ms Tilling, the true position is there was not an injunction in place and therefore there were no constraints about what could be said regarding the integrity of Ms Harvey. It obviously then follows it was not possible for either Ms Tilling or myself to be in breach of any injunction.

While Mr Kalantzis did bring the matter before the court, once the error of his ways became apparent the matter was withdrawn.

The land lease in question has obviously now been ended, and I am endeavouring to find out if Harvey has paid the charity the cost of over $400,000 for it’s over capitalised ‘joey house’ which she has recently sold as part of her house.

This correction will also be emailed to [email protected]...”

31. On 7 November 2024, Mr Kalantzis conducted a further search of the Facebook page referred to as “Beware of Wild2Free”. The Facebook page revealed a comment that had been posted by a commentator identified as “Ollie Tirips”.

“So the Committee has decided to shut down wild2free … why?

After doing all of the documentaries that aired all over the world, making promises to people that this is forever, stating that Harvey has generously bequeathed the property to the charity upon her death, and the charity spending ~half a million AUD of donor’s funds on rebuild / replacement of structures?

Isn’t all of this a massive betrayal of the public?

What about the infrastructure and assets owned by the charity? Like the joey house, the solar panels and batteries, plants, equipment, machinery etc? Will the property be sold with the structures like the joey house on it that the charity paid for?

Or will those structures be removed (those that are mobile, including the machinery) and sold by the charity? Possibly to pay out Harvey as she has a rental agreement with the charity that was set up for 10 years? Of which, as far as I can tell, are 6 years still left. Would round up to nearly 300K of rent still owed to Harvey?

Or did Harvey legally buy the charity assets of the property to sell as it is? Were [sic] or will the charity’s items be officially valued and publicly listed?

When selling the property, will the increased property value that wild2free and other charities (like ROWW, Great Eastern Rangers, Moruya Rotary etc) contributed to by installing immobile structures and plants and doing property improvements, now benefit the private seller (Harvey)?

All of that being said, it seems that the majority of donations were used to benefit that one person now selling and causing the charitable operations to cease.

I am not taking much of gamble [sic] when saying that the property is very likely paid off. Especially since the cost of the rebuild for the property owner were significantly reduced since the charity supplemented massively so that a big the of [sic] insurance would have gone into the pockets of the property owner – with rental payments from the charity coming on top of this. Money shouldn’t be an issue here.

And seeing there are and always were others doing the physical work, I can’t understand why the charity has to be shut down because one person is leaving the operation? With the long term Volunteer Annie literally having her own volunteers and with 6 to 8 Joeys in care on average, this is clearly not a workload issue as well.

After investing ~500K of donations into a property privately owned by the one person that has decided to sell the property, the charity simply ceases to exist? Sounds like the charity was set up around one person and operated to benefit one person and I am pretty sure this is not how charities are supposed to operate.

How come the committee approves this? Makes me think that the committee has and still does serve the bidding of the one person that happened to benefit massively from allowing the charity to operate on her land. With the actual charitable cause coming second / last. Mismanagement at its finest.”

32. On 13 November 2024, the first defendant sent an email to the then Secretary and Treasurer of Wild2Free in the following terms:

“Dear Board Members

Can you please advise details of the transaction that has seen Wild2Free’s major asset, for which they paid over $500,000 just three years ago, being sold as a studio by non [sic] other than the president of Wild2Free?

I have emailed the board before highlighting what a risk the 10 year lease in favour of the president was, and how is [sic] seemed obvious the board members at the time were not acting in the best interests of the charity. It now appears the board members have again failed to act in the charity’s best interest, with the ‘joey house’ morphing into a ‘studio’ and being sold as part of Harvey’s property. I assume the charity’s solar battery has been sold as well?

I am very interested in knowing what the charity has to show for the receipt of over a million dollars in the past four and a half years and I believe you have an obligation to the donors, and the Cobargo sanctuary which was denied funding, to show what funds are left and where they are going.”

33. On the same date, the plaintiff became aware of further posts on the Facebook page “Beware of Wild2Free”. The first post was an animated image of a pile of money on fire with the caption:

“How is this even possible ??? The Wild2free Board agreed to spend over $500,000 of donations from the bush fire fundraiser for a so called ‘joey shed’, which then just happens to end up as part of Wild2Free president Rae Harvey’s house. And then a mere two years after completion, the charity owned ‘joey shed’ miraculously turns into a ‘studio’ and is sold as part of Rae Harvey’s house sale ?? This was the same building that now board member Claire Pragnell said in court it was all ok to build on Harvey’s property as it was transportable!! So out of a list of questions, the obvious is why has the board agreed to this and how much, if any is the Wild2Fre [sic] charity going to receive for selling its major asset as part of the presidents house sale?? You couldn’t make this up.”

34. The second post is an image of four kangaroos with the words “The Scam” in the bottom left corner.

35. The third post is a reply to the Facebook comment extracted above by Ollie Tirips. The reply comment reads:

“Ollie Tirips All very valid points raised Ollie and so so many questions left unanswered. Any half transparent charity would proudly step and explain their plans for the funds and for their future but of course not Wild2Free. Secretive until the end, and is this even the end? Maybe it will continue in some form because there is a financial benefit to be had by doing so? Is the charity still going to maintain its entitled to a DGR endorsement when it is’t [sic] and never was entitled to have one?”

36. On 27 November 2024, Mr Kalantzis observed further posts on the Facebook page “Beware of Wild2Free”. The first post contained images of two vehicles, a desktop computer and a Tesla produce with a caption addressed to two Wild2Free Board members in the following terms:

“Where has the money and the assets gone?

With donations received of over 1 Million dollars in the last four years, can you tell the public and donors what’s left now Wild2Free has closed down??

What has happened to these assets below purchased with charity funds?? Have they been sold?? If so who received the funds??”

37. The second post is an image with text which was posted on 22 November 2024 and reads:

“The claim on the Wild2Free website

Two independent assessments were sought to determine a fair rental value. To avoid any conflict of interest, Rae was not involved in the process.

The reality shown in Wild2Free meeting minutes: ‘a rental amount based on the valuation arranged by rae and conducted by John Sanidas’”

The accompanying caption reads:

“More of the same I’m afraid with the Wild2Free website saying Rae had nothing to do with the valuation being done so she could receive over $1,000 per week from the charity, but the Wild2Free meeting minutes from April 2021 showing she had everything to do with it.”

38. The third post is an image with text which was posted on 14 November 2024 and reads:

“The claim on the Wild2Free website

‘in 20/21 Rae would not accept any lease payments and has generously bequeathed the property to the charity upon her death’

The reality :

Rae has sold her property including the charity’s main asset, and will not reveal what the charity will receive, if anything.”

39. At the hearing of the contempt proceedings, the first defendant accepted that each of the charged publications were published by him. Mr Henderson relied upon an affidavit in which he asserted that, after he had not received information from the charity as to the manner in which the assets were to be sold and the extent to which the charity would receive any money, he received correspondence from Mr Kalantzis asking for the defamation matter to be relisted. This occurred around 18 October 2024. Mr Henderson asserts that he remembered “taking time to read the Court order from 17^th September 2021 and to confirm that Order (6) was in place only until the hearing of the defamation matter”.

Consideration

40. The Court is satisfied beyond reasonable doubt that Mr Henderson published the material which is the subject of each charge. The publications complained of in the substantive proceedings contained a number of imputations. Not all of them were defamatory. Nevertheless, the imputations included:

1. the plaintiff or Wild2Free has been involved in misappropriation of funds;

2. the plaintiff and Wild2Free have been involved in fraud;

3. the plaintiff has carried on Wild2Free and conducted activities in animal care for the plaintiff’s own personal benefit;

4. the plaintiff has carried on activities in animal care and carried on Wild2Free for the purpose of obtaining funds for herself;

5. the plaintiff misused funds donated by the American Red Lion Disaster Fund;

6. the plaintiff was involved in fraudulent activity;

7. the plaintiff ran Wild2Free charity purely to raise funds for herself and not to provide animal rescue services; and

8. the plaintiff is reasonably suspected of fraudulently obtaining a financial advantage.

41. The publications that are the subject of the charges of contempt are the publications recited above, and the publications charged in the notice of motion. Charge 1 conveyed that the plaintiff is a fraud; that the plaintiff has conducted herself fraudulently with respect to the operation of Wild2Free charity; that the plaintiff has run the Wild2Free charity as a private fundraiser for her own financial benefit; that the plaintiff has conducted the Wild2Free charity fraudulently; that the plaintiff ran Wild2Free charity for her own personal financial benefit and not for the purpose of rescuing animals; and that the plaintiff takes money from people on the false pretence of continuing to use the bushfires to raise money for her Wild2Free sanctuary and had misused Wild2Free charity funds by spending $80,000 on her rates, personal groceries, telephone, internet and $35,000 to lease her own property.

42. Those imputations are the same or substantially similar imputations to the publications complained of and set out in the Statement of Claim and the Amended Statement of Claim.

43. The publications in Charge 2 convey the same or substantially similar imputations to the publication about which the plaintiff complained in the substantive proceedings, which imputations have already been recited.

44. In relation to Charge 3, extracted above at paragraphs [21] – [23], leaving aside the threatening nature of the message and the fact that Mr Henderson and his wife were members of the committee which approved the original lease, the three publications impute the same or similar imputations to those about which complaint was made in the substantive proceedings.

45. The first defendant submits that the orders issued by the Court on 17 September 2021 prevented the defendant from publishing the same imputations or imputations that are substantially the same as those published in the material which was the subject of the proceedings in which these orders were made applied only until 15 April 2024, when the hearing of the substantive proceedings commenced.

46. Mr Henderson submits that the terms of the order issued by Sackar J, by consent of the parties, applied “pending the hearing of this matter” and the hearing occurred on 15 April 2024. It is necessary to deal with certain principles associated with the construction of any document, including an order of the Court. Before doing so, it is necessary to set out some principles associated with the charge of contempt.

47. Historically, courts have drawn a distinction between civil and criminal contempt. However, those distinctions have been overstated. The purpose and distinction between civil and criminal contempt was discussed by the High Court in Mudginberri, [2] where the High Court said:

    2. Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46.

“Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as ‘civil contempt’; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as ‘criminal contempt’ (Fox, The History of Contempt of Court (1927), at p.1). As Lord Diplock said in Attorney-General v. Leveller Magazine Ltd (1979) AC 440, at p 449, criminal contempts:

‘... all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process.’

The distinction, not recognized in Scotland, which has often been made between civil and criminal contempt seems to have originated in the seventeenth century (Report of the Committee on Contempt of Court (1974) Cmnd. 5794, at par.22). The existence of the distinction has been recognized in judgments of this Court (R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208, at pp 243, 253-254; John Fairfax &Sons Pty Ltd v. McRae (1955) 93 CLR 351, at pp 363-364; Australian Consolidated Press Ltd v. Morgan (1965) 112 CLR 483, at pp 489, 497-500). The principal theoretical basis of the distinction is that disobedience to the process and orders of the court in civil proceedings is said to be a civil wrong, a matter between party and party, enforcement being for the private benefit or interest of the party seeking enforcement, whereas impeding the administration of justice is a public wrong. A secondary basis for the distinction is that the main purpose of sanctions for disobedience in civil proceedings is coercive rather than punitive (Ansah v. Ansah (1977) Fam. 138, at p 144).

The distinction has been attended by some practical consequences connected with procedure, onus of proof, right of appeal, mode of punishment, privilege from arrest, pardon and power to release an offender (Harmon, ‘Civil and Criminal Contempts of Court’ (1962) 25 Mod. L. Rev. 179), though differences in approach to these matters have largely disappeared in more recent times. According to some authorities, criminal, but not civil, contempt could be punished by the imposition of a fine. More recent decisions indicate that a fine may be imposed when the contempt consists of wilful disobedience to a court order in the sense that the disobedience is not casual, accidental or unintentional. The correctness of this approach is, of course, a critical issue in this appeal.

In the light of these complexities it is not surprising that the distinction between the two classes of contempt has been subjected to increasing scrutiny. The theoretical distinction between the two classes overlooks the underlying rationale of every exercise of the contempt power, namely that it is necessary to uphold and protect the effective administration of justice. Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt (1983) 2nd ed. say, at p.3:

‘If a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute.’

See also Canada Metal Co. Ltd v. Canadian Broadcasting Corporation (No. 2) (1975) 48 DLR(3d) 641, at p 669. There is, accordingly, a public interest in the exercise of the contempt power in cases of disobedience to an order, though Lord Diplock suggested in Attorney-General v. Times Newspapers Ltd (1974) AC 273, at p 308, that:

‘... no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement.’

The unsatisfactory nature of the distinction is attested by the arbitrary classification of some instances of disobedience to an order as examples of criminal contempts. They include wrongful interference with a ward of a court, whether contumacious or not (Wellesley v. The Duke of Beaufort (1831) 2 Russ &M 639; 39 ER 538; Scott v. Scott (1913) AC 417, at p 462), disobedience to an order for delivery up of a child (Corcoran v. Corcoran (1950) 1 All ER 495, but cf. Reg. v. Barnardo (1889) 23 QBD 305), any breach of an order forbidding molestation of a person (Stourton v. Stourton (1963) P 302, at p 310) and contempts by officers of the court and others who have a special relationship with the courts, for example, solicitors (Seldon v. Wilde (1911) 1 KB 701) and liquidators (In re Grantham Wholesale Fruit Vegetable and Potato Merchants Ltd (1972) 1 WLR 559). These instances of criminal contempt on the part of solicitors and liquidators may be explained on the footing that they involve disciplinary action against officers of the court.” [3]

3. Ibid, at [106]-[107] (Gibbs CJ, Mason, Wilson and Deane JJ).

48. The distinction between civil and criminal contempt has been described as unsatisfactory in part because the distinction cannot always be drawn appropriately. [4]

    4. See Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483.

49. In some circumstances, conduct constituting contempt may be characterised as both civil and criminal. Where the contempt arises from an alleged breach of an order of a Court, in order for the breach to be contempt, the conduct in breach must be wilful or deliberate and not merely casual, accidental or unintentional. [5]

    5. Australasian Meat Industry Employees’ Union v Mudginberri, supra, at [112]-[113].

50. It is not necessary for the party alleging contempt to prove that the contemnor had a specific intent or awareness of disobeying the Court’s order. [6] It is, however, necessary to establish that the breach of the order was deliberate and voluntary. [7]

    6. Anderson v Hassett [2007] NSWSC 1310; Wyszenko v Wyszenko [2012] NSWSC 732.

    7. Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201.

51. Whether the contempt is said to be criminal or civil, the standard of proof for the allegation of contempt is the standard of beyond reasonable doubt. [8]

    8. Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3; Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321; Talacko v Talacko [2009] VSC 387.

52. In National Bank (NAB) Ltd v Juric, the Victorian Supreme Court set out the elements to be satisfied to establish guilt of civil contempt as a result of a breach of an order. [9] These include:

    9. National Bank (NAB) Ltd v Juric [2001] VSC 375.

1. The orders were made by a Court;

2. The terms of the order were clear, unambiguous and capable of compliance;

3. The order was served on the alleged contemnor or the contemnors had knowledge of the terms of the order; and

4. The contemnor breached the orders deliberately and voluntarily.

53. The foregoing elements were adopted in New South Wales. [10] They have also been applied more generally and were recited, albeit with slightly different emphasis, in the Federal Court by Finn J in the following terms:

“These are not in issue and can be stated shortly. First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 515-516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40]. Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 at [19]. Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 at [6]. Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534.” [11]

10. Wyszenko, supra.

11. Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16 at [9] (Finn J).

54. The foregoing statement of principles was adopted and applied by Barrett J in ASIC v Matthews, in which his Honour said:

“As Finn J stated in the second of the principles he mentioned, the proper construction of an order said to have been disobeyed is a question of law. Orders 8, 10 and 12 are restraining orders. They enjoin certain forms of conduct by the defendant. The restraints are permanent. Orders 8, 10 and 12 follow a number of declarations concerning breaches of identified statutory provisions by the defendant by reason of conduct on his part declared to be within the scope of the statutory provisions.

Orders 8, 10 and 12 employ terminology also used in the earlier declarations. Thus, order 8 refers to ‘the business of … advising other persons about securities’ and ‘the business of … publishing securities reports’. Order 10 refers to ‘issuing invitations to subscribe for securities … in corporations which have not been formed’. Order 12 refers to ‘undertaking, either directly or indirectly, the business of dealing in securities’.

The order 8 terminology is also found in the declarations 1, 2 and 3. The order 12 terminology is found in declarations 6 and 7. The declarations related the particular forms of conduct to particular provisions of the Corporations Law as they stood when the declarations were made on 4 October 2000.

It is thus clear (and I did not understand either party to dispute) that the several restraining orders are to be construed in the light of the preceding declarations and that the references in the restraining orders to acts and activities of a kind with which provisions of the Corporations Law referred to in the declarations were relevant are to be construed in the light of those Corporations Law provisions as they existed on 4 October 2000 or at an earlier time relevant to the conduct of the defendant.

This approach is consistent with that taken by the Court of Appeal in Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 where it was held that a reference to ‘back-packer accommodation’ in a court order took its meaning from the judgment in the proceedings in which the order was made, which judgment itself obviously adopted the meaning of ‘back-packer accommodation’ in an applicable planning instrument.” [12]

12. ASIC v Matthews [2009] NSWSC 77; (2009) 69 ACSR 559, at [6]-[10] (Barrett J).

55. As is clear from the passage in the judgment of Barrett J above, the orders of a court are construed objectively. For many years, there was a tendency to treat the construction of penal provisions and beneficial conditions differently from other instruments. While the application of the general principles is now applied universally, it may be the case that, because provisions have the capacity to be penal, the relevant intention is derived by treating the terms of the penal provision in a manner which imposes the least restrictions on conduct otherwise available. Nevertheless, the principles of construction remain, in my view, the same.

56. The order must be understood in the context in which it is issued and in a manner which derives, objectively, the purpose of the parties to it or the judicial officer issuing it and in a manner which achieves that purpose. [13]

    13. Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34.

57. The High Court, construing a statute, clarified the principles of construction in the following passage:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” [Footnotes omitted.] [14]

14. SZTAL, supra, at [14] (Kiefel CJ, Nettle and Gordon JJ).

58. Further, Gageler J (as the learned Chief Justice then was) reiterated the foregoing in stating:

“Both of those passages have been ‘cited too often to be doubted’. Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility ‘if, and in so far as, it assists in fixing the meaning of the statutory text’.

The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from ‘a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural’, in which case the choice ‘turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies’.

Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, ‘the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation’ ‘is in that respect a particular statutory reflection of a general systemic principle’.” [Footnotes omitted.] [15]

15. Ibid, at [37]-[39] (Gageler J).

59. The first defendant submits that the word “pending” means until. Such a meaning derives from the dictionary. However, as Gageler J points out in a passage following that extracted above, utilising dictionary definitions or incantations relating to the clarity of meaning do not, absent context and purpose, result in a proper interpretation of an instrument.

60. The context of these orders issued by Sackar J was that the parties were in dispute about imputations published by the defendants and sought permanent and interlocutory injunctions restraining the defendants from republishing such imputations. Issues existed between the parties as to whether the imputations were defamatory. It was agreed that, pending the hearing of the matter, there should be no further publications.

61. Reliance upon the meaning of the term “hearing” in different contexts does not assist. The Court is required to determine objectively the intention of the parties to the consent arrangement and the intention of the Court, objectively determined in the context that the orders were made. Plainly, the orders were intended to bring about that which in current circumstances might be termed a “ceasefire”. The intention is plainly that no further damage be created pending the resolution of the issues between the parties.

62. To place on the terms of the order the dictionary definitions of “pending” and “hearing” to arrive at a meaning which allows the order to run only until the hearing and not beyond it would make a mockery of the purpose and intention of the order. Is it seriously suggested (and it was not the subject of submissions) that the restraint would apply only until 10am on the first day of hearing and that at 10.05am the defendants would be free to publish all of the imputations which were the subject of proceedings? Such a construction would be perverse.

63. If it cannot be said that the order runs only until the beginning of the hearing (and I have not dealt here with the number of directions hearings that were heard prior to the beginning of the substantive hearing), the order must be taken to have meant that it is running until the conclusion of the hearing. The conclusion of the hearing is when the Court issues the judgment resolving the justiciable controversy between the parties.

64. To the extent that authority is needed, it is abundant.

65. In Salt v Cooper [16] the United Kingdom Court of Appeal made clear that until judgment issues, a case is still “pending” and the Court obtains powers to deal with the matters raised. [17]

    16. Salt v Cooper (1880) 16 Ch D 544.

    17. Ibid, at 551 (Jessel MR).

66. The Macquarie Dictionary definition of “pending” was given some authority in the Courts and taken to mean, in the context of the law or proceedings, “remaining undecided, awaiting decision”.

67. Further, to “hear a matter” has, at least for the last hundred years, meant to hear and determine a matter and is taken, in the absence of an express intendment to the contrary, to mean “to be heard and finally disposed of”. [18]

    18. Green v Penzance 6 App. Cas. 657; R v Canterbury Archbishop 28 LJQB 154.

68. Only by construing Order 6 issued on 17 September 2021 as applying until the determination or finalisation of the substantive proceedings would the purpose of the Order and the intention of the parties be given effect. I reject the submission that the Orders issued on 17 September 2021 applied only until the commencement of a hearing and include in that rejection the notion that it could apply somewhat oddly to the commencement of the substantive hearing and not to other proceedings.

69. Given the foregoing analysis and the concession of the first defendant that each of the matters subject to charge were published, together with evidence that establishes the publication by the first defendant beyond a reasonable doubt, the provisions of Order 6 of the orders issued by the Court on 17 September 2021 have been breached. The breach was both voluntary and deliberate in that the conduct was voluntary and the publication deliberate.

70. If, as attested, the first defendant honestly believed that restraint applied only until the commencement of the hearing, rather than its determination, then the first defendant has taken a risk that his interpretation of Order 6 was correct, rather than seek clarification before the Court. The terms of the Order must be construed objectively, and objectively the restraint applies until the determination and resolution of the justiciable controversy. The Court has now issued a permanent injunction. [19]

    19. Harvey v Henderson [2025] NSWSC 601.

71. The Court makes the following orders:

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.

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Endnotes

Amendments

17 July 2025 - Inclusion of counsel on the cover page

Decision last updated: 17 July 2025