Inserve Australia Ltd v Kinane

Case [2018] QCA 116

SUPREME COURT OF QUEENSLAND

CITATION:

Inserve Australia Ltd & Ors v Kinane [2018] QCA 116

PARTIES:

INSERVE AUSTRALIA LTD
ACN 147 747 859
(first applicant)
MICHAEL SYDNEY BYRNE
(second applicant)
PAUL BENEDICT BYRNE
(third applicant)
MARK JOHN WILSON
(fourth applicant)
v
NIGEL KINANE
(respondent)

FILE NO/S:

Appeal No 5433 of 2017
DC No 1983 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:


District Court at Brisbane – [2017] QDC 92

DELIVERED ON:

8 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2017

JUDGES:

Fraser and Gotterson and Philippides JJA

ORDERS:

1.   Application for leave to appeal is refused.

2.   The applicant pay the respondent’s costs of the application.

CATCHWORDS:

COURTS AND JUDGES – CONTEMPT – POWER OF COURT TO PUNISH FOR CONTEMPT – where the respondent published defamatory material on his public Facebook account concerning the applicants – where the applicants made an ex parte application for both a prohibitory injunction to restrain the respondent from publishing defamatory material and a mandatory injunction requiring the respondent to remove the defamatory material – where during the hearing it became apparent the respondent had deactivated his Facebook account and as such a mandatory injunction was not made – where the primary judge made a prohibitory order restraining the defendant from publishing to the general public words that impute or imply that the second, third, fourth and fifth applicants are incompetent, deceptive, greedy, venal, dishonest or that they have engaged in blackmail or bullying – where before the making of the prohibitory order the respondent reactivated his Facebook account and deleted some of the complained of posts – where after the prohibitory order was made and served on the respondent he sent a LinkedIn message to a potential client of the first applicant making imputations against the applicants – where the applicants sought an order that the respondent be charged with contempt of court for not removing the remaining defamatory Facebook posts and for his conduct in sending the LinkedIn message – whether the primary judge erred in dismissing the application for contempt of court – whether leave should be granted to the applicants to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) to prevent a substantial injustice – whether the primary judge erred in finding that the LinkedIn message constituted a publication to only one person and was not sufficient to support an order for contempt – whether the trial judge erred in finding the terms of the prohibitory order were not clear and unambiguous – whether the trial judge erred in finding the respondent did not breach the order by failing to remove the remaining Facebook posts

District Court of Queensland Act 1967 (Qld), s 118(2), s 118(3)

Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201; [1985] HCA 64, considered
Culleton v Kershaw [2016] WASC 334, cited
Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575

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AGLC
Inserve Australia Ltd v Kinane [2018] QCA 116
Case
[2018] QCA 116
Decision Date

CaseChat Overview and Summary

Inserve Australia Ltd and others sought leave to appeal against the primary judge’s decision to dismiss their application for the committal of the respondent for contempt of court. The primary judge had dismissed the applicants' application for contempt, which was based on the respondent's failure to remove certain Facebook posts and his sending of a LinkedIn message that allegedly breached an interlocutory prohibitory order. The applicants argued that the primary judge had erred in dismissing the application for contempt and in finding that the LinkedIn message did not constitute a publication to the general public. The applicants also claimed that the terms of the prohibitory order were not clear and unambiguous and that the primary judge had erred in finding that the respondent did not breach the order by failing to remove the remaining Facebook posts.

The primary judge examined the nature of civil contempt, which has a dual purpose of vindicating judicial authority and protecting the interests of those who benefit from a court order. The primary judge referred to relevant principles concerning charges of contempt, including the onus of proof on the applicants and the requirement that the terms of the order in question must be clear and unambiguous. The primary judge also noted that the breach must be shown to be wilful and not casual or accidental or unintentional. The primary judge found that the respondent's reactivation of the Facebook account and the leaving of some of the offending posts on his account did not constitute a breach of the Order. The primary judge concluded that publication had not occurred until the matter complained of was read or seen by a recipient and that the Order did not clearly and unambiguously require the respondent to remove the remaining posts.

The court refused the application for leave to appeal and ordered the applicant to pay the respondent’s costs of the application. The court found that the primary judge had not erred in dismissing the application for contempt or in finding that the LinkedIn message did not constitute a publication to the general public. The court also found that the primary judge had not erred in finding that the terms of the prohibitory order were not clear and unambiguous or in finding that the respondent did not breach the order by failing to remove the remaining Facebook posts. The court concluded that the primary judge had correctly applied the relevant principles concerning charges of contempt and that the applicants had not demonstrated that the primary judge's decision had resulted in a substantial injustice.

Orders

Orders of the court

1. Application for leave to appeal is refused.

2. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

The applicants seek leave to appeal against the dismissal[1] by the primary Judge (Farr DCJ) of their application for the committal of the respondent for contempt of court by allegedly breaching an interlocutory order made by Jones DCJ on 2 June 2016 (“the Order”).[1][2017] QDC 92.Factual background The Order made on 2 June 2016 was obtained in the context of the following factual background. In April 2013, the respondent engaged in the circulation of fraudulent documentation concerning Inserve to Suncorp-Metway Ltd (then a major client of Inserve)[2] in the form of a letter, purportedly from Paul Byrne of Inserve to its shareholders, stating, amongst other things, that they had installed a “hidden multiplier” in its invoicing software. This subsequently caused Suncorp to cease business with Inserve. In August 2014, the respondent pleaded guilty to charges of fraud and forgery and uttering in respect of his conduct in circulating that letter.[3][2]Reasons at [6].[3]Reasons at [6]-[7]. The applicants alleged that the respondent had simultaneously commenced what was said to be a defamatory campaign against them through his social media account on Facebook. This concerned the publication between August 2013 and May 2016 of allegedly false, derogatory and defamatory statements relating to the applicants on the respondent’s online Facebook account (which was open to the public at large) relating to Inserve and the applicants. The statements attacked the personal characteristics of Michael Byrne and Paul Byrne and imputed that members of the board of directors of Inserve were deceptive, greedy and dishonest and had engaged in acts of blackmail and bullying.[4][4]Reasons at [8]. Notwithstanding requests to remove the material from his Facebook account and to cease and desist in his behaviour from the applicants’ solicitors, the respondent refused to do so.[5][5]Reasons at [9]. On 20 May 2016, an ex parte application was brought for interlocutory orders in the nature of a prohibitory injunction “to restrain the respondent from publishing defamatory material” and a mandatory injunction requiring the respondent to “remove published defamatory material”.[6][6]Reasons at [10]. That application was ultimately heard on 2 June 2016, before Jones DCJ. The respondent did not appear at the hearing, and communicated by email that he had been informed that the application had been adjourned to 26 June 2016. Nevertheless, he did not seek an adjournment and indicated he did not wish to participate.[7] During the hearing, senior counsel informed the Court that the applicants’ solicitors had learned that the respondent had deactivated his Facebook account. It was indicated that, in those circumstances, the mandatory injunctive relief for removal of the Facebook posts was not required and that the only order sought was an injunction restraining the respondent from publishing defamatory material to the general public.[8] Jones DCJ was satisfied,[9] given the intent and maliciousness of the imputations in the published material, and notwithstanding that the Facebook account had been deactivated, that it was appropriate to make a prohibitory interlocutory order in the terms sought and made the Order:“Until judgment in this action or earlier order, the defendant is restrained by himself, his servants and agents, from publishing to the general public, words that impute or imply that the second, third, fourth and fifth applicants are incompetent, deceptive, greedy, venal, dishonest or that they have engaged in blackmail or bullying.”[7]Reasons at [16].[8]AB at 12.[9]Reasons at [19].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

If leave was granted, the applicants seek orders that the primary judge’s Order dismissing the amended application be set aside, and that in lieu thereof, it be ordered that the respondent be found guilty of contempt on both the first and the second charges in the second amended application and that the proceeding be remitted to the District Court so that the respondent may be punished for his contempt.The decision of the primary judgeApplicable principles His Honour noted the nature of civil contempt, and its dual purpose in vindicating judicial authority and its remedial or coercive purpose in protecting the interests of those having the benefit of a court order.[20] His Honour referred to the relevant principles concerning charges of contempt and in particular, that the applicants bore the onus of proving all charges beyond reasonable doubt, that the terms of the order in question must be worded in clear and unambiguous terms and that the breach must be shown beyond reasonable doubt to have been wilful and not casual or accidental or unintentional.[21][20]Reasons at [49] referring to Emmanuel College v Rowe [2014] QSC 238 at [18]-[25].[21]Reasons at [50].Charge 1 - the remaining Facebook posts The primary judge observed that the first charge was particularised as having two distinct aspects; the respondent’s reactivation of the Facebook account and the respondent’s leaving some five of the offending Facebook posts on his account for a period thereafter.[22][22]Reasons at [62]. His Honour found[23] that reactivation of the respondent’s account with the Facebook posts required a deliberate act by the respondent and that the respondent knew that his reactivated Facebook account was publicly viewable and did not take any steps to make it private prior to after activation. However, given that the act of reactivation had occurred prior to the respondent being notified of the terms of the Order, his Honour found that the reactivation did not constitute a breach of the Order.[23]Reasons at [63]. As to the respondent’s conduct in leaving the posts the remaining posts on the Facebook account after having been served with the order, his Honour considered[24] that a question arose as to what was meant by the words “published to the general public” that appeared in the Order. That had two components; the meaning of “publish” and of “the general public”.[24]Reasons at [64]. As to the first component, in considering the meaning in the Order of the word “publish”, his Honour had regard to the fact that the Order was made in the context of a defamation action and therefore to the concept of publication in defamation law. His Honour referred to Dow Jones and Co Inc v Gutnick,[25] where Gleeson CJ, McHugh, Gummow and Hayne JJ, observed that, for the purposes of the law of defamation, the focus is on reputational harm by publication, that harm being “done when a defamatory publication is comprehended by the reader, the listener, or the observer”. His Honour concluded that:[26]“Notwithstanding that the word “publish” may generally be thought to mean the issuing or causing to be issued of printed material for sale or distribution or to announce or proclaim or to make publicly or generally known, such definitions are not apt in the circumstances of this matter, given that the claim in this matter is one of defamation, and that the order in question was made for the express purpose of protecting the applicants’ reputations. In other words, the order was made in an attempt to prevent the respondent from defaming the applicants. In such circumstances, the definition for the word “publish” is that which applies in cases of defamation. Therefore, publication has not occurred until the matter complained of is read or seen by a recipient.” (emphasis added)[25](2002) 210 CLR 575; [2002] HCA 56 at [26].[26]Reasons at [66].

Ratio Decidendi

Legal Principle Established

On the matter of publication, the respondent referred to Toben v Jones,[46] where it was emphasised that, for the purpose of defamation law, publication is not established merely by proving that an article containing alleged defamatory material is made available. Publication requires communication to a third party who is capable of understanding the alleged defamatory matter. Reliance was also placed on the following statements in Sims v Jooste (No 2) in respect of material made available on the internet:[47]“Because of the vast number of internet sites, and the vast number of web pages accessible through those internet sites, in the absence of evidence it cannot be inferred that one or more persons has undertaken the steps required to identify and access any particular web page available through the internet merely from the fact that material has been posted on an internet site. There is a real prospect that many of the billions of web pages accessible via the internet have never been seen by anyone other than the person who posted the page on an internet site. This has been recognized in the cases to which I will now refer.” (emphasis added).[46](2012) 298 ALR 203; [2012] FCA 1193 at [16].[47][2016] WASCA 83 at [17].Consideration Contempt requires a deliberate act intentionally contravening an order. Here the deliberate act is leaving the posts on the account. The respondent’s conduct in reactivating his Facebook account before notice was given of the Order clearly could not constitute a contempt. The other conduct relied on as a deliberate act done in wilful disregard of the Order was the respondent’s conduct in leaving the posts on his Facebook account (with a public setting). However, that overlooked the nature of the Order made, which was not a mandatory injunction requiring the respondent to remove defamatory material available for viewing on the internet. Rather, it was a prohibitory order restraining the respondent from publishing defamatory material to the general public. In those circumstances, the primary judge’s finding that the Order was not worded in clear and unambiguous terms cannot be said to have been erroneous. The terms of the Order did not clearly and unambiguously require the respondent to remove the remaining posts and it could not be concluded that on service of the Order the respondent should have understood that that was what the Order required him to do. That the Order did not by its terms clearly require the respondent to remove the remaining posts, but rather enjoined him from publishing defamatory material, was a relevant and significant matter which the primary judge was entitled to consider in determining that a prima facie case of contempt had not been made out. Nor did his Honour err in contrasting the terms of the Order with that made on 23 June 2016. His Honour was merely identifying that the latter very specifically stated what was prohibited. It included any communication of a particular type to identified individuals and entities.