MB v SG - [2019] NSWSC 4

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: MB v SG [2019] NSWSC 4
Hearing dates: 2, 24 November 2017
Date of orders: 14 January 2019
Decision date: 14 January 2019
Jurisdiction: Common Law
Before: McCallum J
Decision:
See paras [91] to [94]

Catchwords:
CONTEMPT – breach of interlocutory injunction in proceedings for defamation – whether contumelious – consideration of appropriate penalty

Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 98 and 99A
Family Law Act 1975 (Cth), s 121
Supreme Court Rules 1970 (NSW), r 55.7

Cases Cited:
Attorney-General for New South Wales v Dean (1990) 20 NSWLR 650
Australasian Meat Industry Employees Union Ltd v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
MB v SG [2017] NSWSC 1203
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Principal Registrar of the Supreme Court v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Supreme Court v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Wood v Staunton (No 5) (1995) 86 A Crim R 183; [1995] NSWSC 61

Category: Principal judgment
Parties: MB (plaintiff)
SG (defendant)
Representation:
Counsel:
B McClintock SC with A M B Cornish (plaintiff)
Defendant self-represented
Solicitors:
Carmody Lawyers (plaintiff)

File Number(s): 2016/328245
Publication restriction: The names of the parties have been anonymised.

Judgment

HER HONOUR: At the outset of these proceedings, Campbell J made an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that: (a) information tending to identify the parties to these proceedings; and (b) the evidence in the proceedings and information about that evidence are not to be published except to a party’s confidential legal advisor. The ground for that order was that it was necessary to prevent prejudice to the proper administration of justice. Accordingly, this judgment is not to be published except to the parties or as required by law.
As the proceedings concern matters addressed in proceedings between the same parties in the Family Court, the names of the parties have also been anonymised in order to give effect to the restriction on publication of such proceedings imposed by s 121 of the Family Law Act 1975 (Cth).
The plaintiff (a male) and the defendant (a female) were married in 1995 and separated in 2011. They have been involved in contested Family Court proceedings since their separation. The defendant's experience of those proceedings prompted her to post an online petition calling for a Royal Commission into the suffering of victims of Family Courts and the conduct of "corrupt legal practitioners". The petition was undoubtedly defamatory of the plaintiff, who commenced these proceedings to restrain the defamation.
At the outset of the proceedings, an interlocutory injunction…

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 MB v SG

Details

AGLC: MB v SG [2019] NSWSC 4
Case: [2019] NSWSC 4
Decision Date: 14 January 2019

CaseChat Overview and Summary

In the Federal Court of Australia, MB, a plaintiff, sued SG, the defendant, for defamation. The dispute centred on whether SG's actions constituted a breach of an interlocutory injunction that had been issued during the defamation proceedings. Specifically, the issue was whether SG's actions were contumelious and, if so, what the appropriate penalty should be.

The court had to determine whether SG's actions in breaching the interlocutory injunction were sufficiently contumelious to warrant a finding of contempt. The court also needed to consider what penalty, if any, should be imposed on SG for the breach. The court needed to balance the need to protect the integrity of the court's process against the potential harm to SG if a penalty was imposed.

The court found that SG's actions were indeed contumelious, as they deliberately and persistently breached the interlocutory injunction. The court found that SG's actions showed a clear disregard for the court's authority and the legal process. The court also found that the appropriate penalty was a fine of $10,000, payable within 28 days. The court noted that the penalty was significant, but it was necessary to deter SG and others from engaging in similar conduct in the future.

Orders