Mysko v Express Cargo Services Pty Ltd - [2024] SASCA 134

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MYSKO v EXPRESS CARGO SERVICES PTY LTD
[2024] SASCA 134
Judgment of the Court of Appeal
(The Honourable President Livesey and the Honourable Justice Bleby)
22 November 2024
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
This is an application for an extension of time to apply for leave to appeal against a decision of a single judge of this Court finding the applicant in contempt of court.
The Notice of Appeal is more than a year out of time. The applicant seeks an extension of time on the bases that she was denied an opportunity to present an adequate defence to the charge of contempt and was self-represented.
Held (by the Court), refusing an extension of time for leave to appeal and ordering the applicant to pay the respondent’s costs of the application:
1.Given the lack of apparent merit in the proposed appeal, the lengthy delay in seeking leave to appeal, the lack of adequate explanation for that delay, and the significant interest in finality, the interests of justice do not favour granting an extension of time to apply for leave to appeal.

Heavy Vehicle National Law (South Australia) Act 2013 (SA); Uniform Civil Rules 2020 (SA) r 214.1, referred to.
Brackenridge v Bendigo and Adelaide Bank Ltd (No 2) [2022] SASCA 16; Gallo v Dawson (1990) 93 ALR 479, applied.

MYSKO v EXPRESS CARGO SERVICES PTY LTD
[2024] SASCA 134
Court of Appeal – Civil: Livesey P and Bleby JA

THE COURT: This is an application for an extension of time to apply for leave to appeal from a decision of a single judge of this Court finding the applicant had committed two acts of contempt of court.
The history of the matter
The respondent is a logistical freight management services company. It employed the applicant as its compliance manager for a short period of time in June 2020. After approximately two weeks of work, the respondent terminated the applicant’s employment. The applicant thereafter communicated with the respondent’s competitors, clients, customers, and business partners making accusations of safety risks and breaches by the respondent of various legal requirements.
On 2 June 2020, the respondent commenced proceedings against the applicant for breaches of contract and the equitable duties of confidence and fidelity. The respondent further claimed damages for injurious falsehood and interference with contractual relations.
On 8 March 2023, Stein J delivered judgment in the primary proceedings, holding that the applicant’s communications impermissibly disclosed references to confidential information, breaching contractual duties she owed the respondent. She found the applicant publicised false statements concerning the respondent’s conduct, with the intent of causing injury. Those statements were neither compelled by the Heavy Vehicle National Law (South Australia) Act 2013 (SA) nor protected within the regime of relevant legislative ‘whistleblower’ provisions.
Stein J made orders permanently enjoining the applicant from making communications concerning the respondent’s business operations with any other person or entity, other than any legal practitioner the applicant engages to act for her.
The Court of Appeal dismissed the applicant’s appeal against Stein J’s decision on 16 November 2023.
Contempt Proceedings
The proceedings for contempt have occurred partially in parallel to the primary proceedings. They concern a series of email communications on 8 April 2022 between Ensign Energy Services Inc, the head-office of a customer of the respondent, and the applicant. Those communications occurred during the course of the primary proceedings and, relevantly, before Stein J’s March 2023 judgment. The relevant prohibition was the subject of a series of interim orders before trial.
Specifically, on 17 July 2020, shortly after the matter commenced, Judge Dart made orders in the following terms:
3.     Until further order the Respondent be restrained from;
3.1     making any contact with; and/or
3.2     sending and/or forwarding correspondence to;
Any client, contractor or primary contractor/customer of the Applicant including but not limited to Ensign Australia, Ausco Modular, Santos, Origin Energy, Strike Energy, BHP, Easternwell Services and Schlumberger in relation to the Applicant or the business of the Applicant.
Subsequently, and following the applicant’s request for an adjournment of the trial in the primary proceedings, Stein J made orders on 24 December 2021 in similar terms to those made by Judge Dart, but prohibiting a wider range of conduct:
1.     In addition to the ongoing interlocutory restraint the subject of FDN 14, on an interim basis and until such time as further orders are made in relation to the applicant’s application for further injunctive orders supported by material filed by the applicant on 21 December 2021 (FDN 86 and 87) the Respondent will refrain from:
1.1.    Disclosing, by any means of communication or other act, to any person or entity (other than a legal practitioner retrained by the Respondent and who has file a notice of acting for the Respondent), any information imparted to or gained by the Respondent during the course of her employment by the Applicant concerning any aspect of the business operations of the Applicant, such information including (but not being limited to) any views, beliefs or opinions that were formed or held by the Respondent during the course of, or by reason of, her employment by the Applicant concerning any aspect of the business operations of the Applicant; and
1.2.    Engaging, at any time or place, in any conduct for the purpose of injuring the Applicant in any way, or by reason of which the Applicant might be so injured, including by bringing the Applicant into disrepute, or by interfering with any business affairs in which the Applicant is or might be involved, or by interfering with any contractual relations to which the Applicant is or might be a party.
On 23 September 2022, Kimber J made orders issuing a summons requiring the applicant to attend before the Court and answer the charge of contempt. On 13 May 2023, Kourakis CJ considered the charges.
Kourakis CJ admitted into evidence a business record of Ensign Energy Services Inc comprising an email chain commencing with an email from [email protected] to Ensign Energy Services Inc. He found the email chain was provided to an agent of Ensign Australia Pty Ltd on 12 April 2022. Consequently, the communications were made to a customer of the respondent in breach of the orders of Judge Dart.
Kourakis CJ held that a breach of the orders was the natural and probable consequence of the communications having been made to Ensign Energy Services Inc. He found that the applicant was aware of those orders because she had attended before Judge Dart. He further found that the applicant contemplated that by sending the email to Ensign Energy Services Inc., it would be forwarded to Ensign Australia Pty Ltd.
The email chain also included, by way of attachment, a 2020 email sent from the applicant to Mr Lachlan Walsh, the contents of which assert bullying by the respondent and breaches of the heavy vehicle safety legislation. Kourakis CJ found that those communications were also impermissibly made to a customer of the respondent, in breach of orders made by Judge Dart on 17 July 2020 and Stein J on 24 December 2021. The applicant was aware of Judge Dart’s orders, and aware of the orders of Stein J, having been served them by email.
On 17 May 2023, Kourakis CJ found the charge of contempt proved.
On 28 August 2024, Kourakis CJ sentenced the applicant. He found that the contemptuous conduct was contumacious and accompanied by a general lack of contrition, justifying punishment by way of commitment to a correctional institution. Nonetheless, he suspended the sentence, noting that the ‘demeanour and the content of her submissions before me today is in marked contrast to that which I and other judges have seen in the past.’
The application for an extension of time and leave to appeal
On 13 August 2024, the applicant filed a Notice of Appeal against the findings of contempt, seeking an extension of time within which to appeal and seeking leave to appeal. The Notice of Appeal identified the following appeal grounds:
1.In finding the act of contempt, the Court failed to take into account relevant matters being:
a.     The Appellant lacked the necessary mens rea to commit an act of contempt;
b.    The alleged contempt involved transmission of information to a party that was not contemplated by the Orders alleged to have been breached
2.In finding the act of contempt the Court took irrelevant matters into account, being:
a.     The history of complaints and correspondence arising out of the primary dispute between the Appellant and Respondent;
b.    Alleged prejudices suffered by the Respondent as a result of the alleged act of contempt;
3.The Court finding an act of contempt having been committed was manifestly unjust in the circumstances.
The Notice of Appeal was filed over a year out of time. It sought an extension of time on the following basis:
1.The Appellant was denied opportunity to present an adequate defence to the charge of contempt
2. The Appellant was self-represented …
The Notice of Appeal raised the following grounds in support of leave to appeal:
1. [T]he same grounds as for an extension of time
2.The interests of justice require that the Appellant have the opportunity to present a defence to the charge of contempt.
The applicant has filed an affidavit in support of her application for an extension of time. She principally contributes the delay in filing her Notice of Appeal to her self-representation for ‘almost all of the above cases, with occasional support from community legal programs and knowledgeable acquaintances’, and with her lack of necessary understanding of the law to otherwise defend the contempt charges herself. She asserts that her inability to address the charge with a ‘valid argument regarding the Court finding that no contempt occurred’ was compounded by Kourakis CJ declining an adjournment of the contempt hearing.
The applicant also contends that she had been labouring under a misapprehension as to the ultimate status of the contempt finding when she appealed against Stein J’s findings in the primary matter. To that end, she considered that by appealing against the primary judgment she was seeking ‘orders for the contempt finding to be removed’. She says that had she been aware the Court of Appeal was not considering the contempt charges, she would have appealed the contempt findings earlier.
The applicant nonetheless maintains the position she put before Kourakis CJ (and the Court of Appeal) that ‘in the realm of safety, It is [her] duty to report issues and breaches to all parties that could be considered part of the Chain of Responsibility (‘COR’) in any operation involving heavy vehicles’ and that her ‘continued persistence in contacting parties’ was accompanied by a genuine belief ‘to be part of the COR and not to disrespect the Court, but in pursuance of what I believe are my obligations’.
The principles governing an extension of time within which to appeal reflect the concerns of the interests of justice. The Court will normally consider the length of delay, the explanation for that delay, the history of the proceedings, the conduct of the parties, and the consequences for the parties of the grant or refusal of an extension of time.[1]
[1] Brackenridge v Bendigo and Adelaide Bank Ltd (No 2) [2022] SASCA 16 at [13], quoting Gallo v Dawson (1990) 93 ALR 479 at 480-481.
The length of delay in this case is very significant. Assessed by reference to the time within which an appeal is to be filed under r 214.1 of the Uniform Civil Rules 2020 (SA), the applicant is more than 14 months out of time.
To the extent the applicant has attributed that delay to her lack of representation, that does not explain the length of the delay. Indeed, on making the contempt finding, Kourakis CJ strongly encouraged the applicant to seek the assistance of the Legal Services Commission. The applicant was represented by the Legal Services Commission for some eight months while the contempt proceedings were on foot, until she terminated their instructions. Insofar as the applicant seeks to attribute the delay to confusion regarding the intersection of her appeal against Stein J’s decision and the contempt findings, that does not provide a reason for the delay between November 2023, when the Court dismissed her appeal, and now.
The applicant is, clearly enough, prejudiced by a finding of contempt against her. However, the substantial time that has elapsed and the respondent’s interest in the finality of these proceedings, are important considerations. The dispute between the parties has been protracted. The respondent was vindicated in the primary proceedings against essentially the same type of conduct the subject of the finding of contempt.
It is also relevant to have regard to the applicant’s prospects of success.
The grounds of appeal assert that Kourakis CJ failed to take into account certain relevant considerations and took into account irrelevant considerations. The asserted irrelevant considerations do not seem to have arisen at the point of the contempt finding. While the applicant raises her lack of mens rea in making the specific communications, her affidavit in support of the extension of time application nonetheless maintains that she was obliged to make the communications, given her obligations as a safety compliance manager. That simply re-agitates what this Court has already determined in the primary proceedings against the applicant.
The complaint that the contempt involved transmitting information to a party not contemplated by the orders is also a matter that has been determined by the primary proceedings. It is unclear how the finding of contempt is ‘manifestly unjust in the circumstances’ as the applicant asserts. There is no apparent reason to doubt the correctness of the finding of contempt.
Given the lack of any apparent merit in the proposed appeal, the length of the delay in seeking leave to appeal, the lack of any adequate explanation for that delay and the importance of the principle of finality in this case, the interests of justice do not favour granting an extension of time.
Conclusion
The application for an extension of time is refused. The respondent provided short written submissions opposing the extension of time. The applicant must pay the respondent’s costs of the application.