Munsie v Dowling (No 2) - [2014] NSWSC 1042

Supreme Court

New South Wales

Medium Neutral Citation: Munsie v Dowling (No 2) [2014] NSWSC 1042
Hearing dates: 31 July 2014
Decision date: 31 July 2014
Jurisdiction: Common Law
Before: Nicholas AJ
Decision:
(1) The defendant pay a fine of $2,000.
(2) The defendant pay the plaintiffs' costs of the contempt proceedings on an indemnity basis, to be assessed and payable forthwith.

Catchwords: CONTEMPT OF COURT - publication contrary to suppression order - penalty proceedings in absence of contemnor - considerations relevant to punishment
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Australian Securities and Investments Commission v Michalik (2004) NSWSC 1259
Munsie v Dowling [2014] NSWSC 962
NCR Australia v Credit Connection (2005) NSWSC 1118
Witham v Holloway (1995) 183 CLR 525
Category: Consequential orders
Parties: Justine Munsie (First Plaintiff)
Kerry Stokes (Second Plaintiff)
Shane Dowling (Defendant)
Representation: Counsel:
ATS Dawson (Plaintiffs)
In person (Defendant)
Solicitors:
Addisions (Plaintiffs)
In person (Defendant)

File Number(s): 2014/114469

Judgment

Before me today are the issues of punishment and whether any other orders are appropriate to be made following the making of the declaration by me on 22 July 2014 that the defendant was in contempt of court for breaches of the orders of the court made in these proceedings on 14 April 2014. I held that the publications of which complaint was made were published in circumstances where the defendant was well aware of the scope of the suppression order and its significance, being self-evident from the contents of the publications themselves: Munsie v Dowling [2014] NSWSC 962.

The proceedings before me today were in the absence of the defendant. He was called outside the court at 9.30am but did not appear. He had sent to the court his written submissions of 30 July 2014 and a covering email in which he made it plain that he did not propose to attend these proceedings. These submissions demonstrate that he was well aware that these were proceedings for penalty and costs, and that they might proceed in his absence. They also demonstrate the defendant's familiarity with UCPR Part 40 Rule 40.7 and the possibility that a contemnor may be liable to punishment by way of committal or sequestration. In my opinion, the position he adopted amounted to a voluntary waiver of his right to attend. I am satisfied in all the circumstances that no injustice would be suffered by the defendant if the proceedings were permitted to continue, and to be determined in his absence.

At the outset it may be recorded that I have given careful consideration to the defendant's written submissions. The fact that I do not recite them in any detail should not be taken as any indication to the contrary. In short, the defendant said he believed he should not have been found guilty of contempt, and should not be penalised. As I understood it, the thrust of the submissions was that the plaintiff's case was fatally flawed by reason of the failure to serve a sealed copy…

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 Munsie v Dowling (No 2)

Details

AGLC: Munsie v Dowling (No 2) [2014] NSWSC 1042
Case: [2014] NSWSC 1042
Decision Date: 31 July 2014

CaseChat Overview and Summary

In Munsie v Dowling, the parties involved were Munsie, the applicant, and Dowling, the respondent. The dispute revolved around a suppression order issued by the court, which was allegedly breached by Dowling through the publication of certain information. The matter was heard in the Federal Court of Australia. The core issue before the court was whether the court should proceed with penalty proceedings against Dowling for contempt, given that he was absent and had not made an application to attend. The court was also required to consider the appropriate punishment if Dowling was found to be in contempt.

The court noted that in determining whether to proceed with penalty proceedings in the absence of the contemnor, several factors must be taken into account. These include the nature of the contempt, the likelihood of the contemnor being located and served with process, and the potential effectiveness of the punishment. The court observed that while it is generally preferable for the contemnor to be present, this is not an absolute requirement. The court must also consider the public interest in upholding the authority of the court and ensuring compliance with its orders. In this case, the court found that the contempt was serious, and there was a reasonable prospect of locating and serving Dowling. The court concluded that it was appropriate to proceed with the penalty proceedings in his absence.

The court determined that the appropriate penalty for Dowling's contempt would be a fine of $2,000, reflecting the seriousness of the breach of the suppression order. The court emphasised the importance of upholding the authority of the court and ensuring compliance with its orders. The decision highlights the court's approach to contempt proceedings in the absence of the contemnor and the factors it considers when determining the appropriate punishment.

Orders