Sandy v Yindjibarndi Aboriginal Corporation RNTBC
[2016] WASC 350
•2 NOVEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SANDY -v- YINDJIBARNDI ABORIGINAL CORPORATION RNTBC [2016] WASC 350
CORAM: LE MIERE J
HEARD: 18 FEBRUARY 2016
DELIVERED : 2 NOVEMBER 2016
FILE NO/S: CIV 3048 of 2015
BETWEEN: JOHN SANDY
Plaintiff
AND
YINDJIBARNDI ABORIGINAL CORPORATION RNTBC
First DefendantANGUS MACK
First-named Second DefendantJILL TUCKER
Second-named Second DefendantLYN CHEEDY
Third-named Second DefendantLYNETTE PHILLIPS
Fourth-named Second DefendantMIDDLETON CHEEDY
Fifth-named Second DefendantPANSY CHEEDY (also known as SAMBO)
Sixth-named Second DefendantROSEMARY WOODLEY
Seventh-named Second DefendantRUSSEL SANDY
Eighth-named Second DefendantSONIA WILSON
Ninth-named Second DefendantSTANLEY WARRIE
Tenth-named Second DefendantTOOTSIE DANIELS
Eleventh-named Second Defendant
Catchwords:
Contempt - Whether publication has real or definite tendency to interfere with course of justice and administration of law - Matter of public interest - Turns on own facts
Legislation:
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Rules of the Supreme Court 1971 (WA), O 55 r 4
Result:
Charge dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr M L Bennett & Ms T J C Elder
First Defendant : Mr C P Shanahan SC & Mr K R Thomas
First-named Second Defendant : Mr C P Shanahan SC & Mr K R Thomas
Second-named Second Defendant : No appearance
Third-named Second Defendant : Mr C P Shanahan SC & Mr K R Thomas
Fourth-named Second Defendant : Mr C P Shanahan SC & Mr K R Thomas
Fifth-named Second Defendant : Mr C P Shanahan SC & Mr K R Thomas
Sixth-named Second Defendant : Mr C P Shanahan SC & Mr K R Thomas
Seventh-named Second Defendant : Mr C P Shanahan SC & Mr K R Thomas
Eighth-named Second Defendant : Mr C P Shanahan SC & Mr K W Thomas
Ninth-named Second Defendant : Mr C P Shanahan SC & Mr K R Thomas
Tenth-named Second Defendant : Mr C P Shanahan SC & Mr K R Thomas
Eleventh-named Second Defendant : Mr C P Shanahan SC & Mr K R Thomas
Solicitors:
Plaintiff: Bennett & Co, Barristers & Solicitors
First Defendant : HWL Ebsworth Lawyers
First-named Second Defendant : HWL Ebsworth Lawyers
Second-named Second Defendant : No appearance
Third-named Second Defendant : HWL Ebsworth Lawyers
Fourth-named Second Defendant : HWL Ebsworth Lawyers
Fifth-named Second Defendant : HWL Ebsworth Lawyers
Sixth-named Second Defendant : HWL Ebsworth Lawyers
Seventh-named Second Defendant : HWL Ebsworth Lawyers
Eighth-named Second Defendant : HWL Ebsworth Lawyers
Ninth-named Second Defendant : HWL Ebsworth Lawyers
Tenth-named Second Defendant : HWL Ebsworth Lawyers
Eleventh-named Second Defendant : HWL Ebsworth Lawyers
Case(s) referred to in judgment(s):
Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 2) (2015) 236 FCR 432, 439; [2015] FCA 762
Bhagat v Global Custodians Ltd [2002] NSWCA 160
Daniel v Western Australia [2005] FCA 536
Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242
Gallagher v Destiny Publications Pty Ltd [2015] WASC 40; (2015) 248 A Crim R 252
Hinch and Macquarie Broadcasting Holdings Ltd v Attorney-General (Victoria) [1987] HCA 56; (1987) 164 CLR 15
John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351
Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148
Resolute Ltd v Warnes [2000] WASCA 359
Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] 2016 WASC 75
The State of Western Australia v Armstrong [2007] WASCA 204
Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25; [1982] HCA 31
LE MIERE J:
Summary
The plaintiff, Mr Sandy, has moved by notice pursuant to O 55 r 4 of the Rules of the Supreme Court 1971 (WA) filed on 9 February 2016 that the first defendant, Yindjibarndi Aboriginal Corporation (YAC), be punished for contempt of this court for interfering with the due administration of justice in this proceeding. The grounds of the application are that YAC interfered with the due administration of justice in the conduct of this proceeding by publishing on its website (the Website Publication) an email (the Email Publication), publishing on its Facebook page (the Facebook Publication) and publishing on its website on 5 February 2016 (the Second Website Publication) articles which have a real and definite tendency to interfere with the course of justice by placing improper pressure on the plaintiff to not proceed with this action. The Website Publication remained on the website between 27 January 2016 and 4 February 2016. For convenience I will refer to these publications as the publications. As the Website Publication and the Email Publication are in essentially the same terms, I will from time to time refer to them both as the article. For the reasons which follow, I am not convinced beyond a reasonable doubt that the publications have brought improper pressure to bear on Mr Sandy which has a real or definite tendency to interfere with the course of justice in this case. The charge should be dismissed.
The parties
Yindjibarndi people have traditionally lived in the Pilbara region of Western Australia. YAC is an Aboriginal and Torres Strait Islander Corporation registered pursuant to the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). YAC is the legal owner of the native title rights and interests that were recognised in the 2005 Federal Court determination of native title in Daniel v Western Australia [2005] FCA 536, as varied by the Full Court in Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148. YAC holds those rights and interests on trust for the Yindjibarndi people.
There is a long running dispute between members of YAC and a breakaway body, the Wirlu Murra Yindjibarndi Aboriginal Corporation (WMYAC). The plaintiff, Mr Sandy, is a member of YAC and WMYAC. The second defendants were appointed directors at the YAC annual general meeting held on 10 September 2014.
At an annual general meeting of YAC in November 2015 a motion to elect new board members failed to be passed with the requisite 75% special majority required to elect new board members. Mr Sandy commenced this action to challenge the validity of the second defendant's positions. The issue in question relates to the construction of a section of the CATSI Act. A meeting, or purported meeting, of directors of YAC held on 16 December 2015 passed a resolution that notice be given of a special general meeting to elect new directors. Mr Sandy claims that the directors' meeting was not properly convened and the resolution to call a special general meeting was invalid. Mr Sandy sought an interlocutory injunction to restrain the holding of the special general meeting. On 27 January 2016, with the consent of YAC and Mr Sandy, Corboy J ordered that the application for an interlocutory injunction be adjourned and the action proceed to an expedited trial. My decision was given on 9 March 2016. In Sandy v Yindjibarndi Aboriginal Corporation RNTBC [No 2] 2016 WASC 75 I found the incumbents, the second defendants, had continued, or purported to continue, in their positions without being validly appointed.
The principles applicable to a contempt application
The principles to be applied to contempt proceedings such as these were set out by Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22, 27 ‑ 30 and summarised by Ipp J in Resolute Ltd v Warnes [2000] WASCA 359 as follows:
The principles to be applied, generally, to contempt of the nature alleged were examined by Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 (at 27-30). This case turns on certain of those principles and I shall set out in summary form those that are presently relevant. In substance, save where otherwise indicated these have been extracted from his Honour's exposition.
(a)The charge must be established beyond reasonable doubt.
(b)The claimant must prove, according to the criminal standard, that the published material has, as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice in a particular case (John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372; R v West Australian Newspapers Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16 WAR 518 at 533).
(c)Because of its exceptional nature, this summary jurisdiction has always been regarded as one, which is to be exercised with great caution.
(d)Intention to interfere with the due administration of justice is not necessary to constitute a contempt. Where, however, intent to interfere has been proved, this has usually been sufficient to sustain a prosecution.
(e)The gravamen of the category of criminal contempt in which improper pressure is placed on a party to court proceedings through public dissemination of material is the tendency to deter the litigant, improperly, from obtaining curial vindication of its rights. Successful interference with a party's conduct of proceedings is not necessary for proof of liability for contempt by improper pressure.
(f)It is an open question as to whether the tendency is to be measured against the capacity of the particular litigant involved to withstand pressure, or whether the court should have in contemplation some hypothetical litigant of 'ordinary' fortitude.
(g)In punishing certain types of interference with litigants, the law distinguishes between proper and improper pressure [13].
In respect of principle (f) of Ipp J's summary the ability of the individual to withstand any pressure may now be considered to be relevant when deciding whether there is a real risk of the party being influenced by the statements: Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 2) (2015) 236 FCR 432, 439; [2015] FCA 762 [39] (White J) citing Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25; [1982] HCA 31, 55 ‑ 57; see also Gallagher v Destiny Publications Pty Ltd [2015] WASC 40; (2015) 248 A Crim R 252 [25] (Kenneth Martin J). This could be achieved in the way proposed by Ipp AJA in a related context in Bhagat v Global Custodians Ltd [2002] NSWCA 160 :
I agree, however, that at least in cases of private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications [54].
Balancing the administration of justice and freedom of speech
A consideration that is unique, in cases of contempt, to contempt by publication is the importance of the public interest in freedom of speech: The State of Western Australia v Armstrong [2007] WASCA 204 [11] (Martin CJ), [71] (Miller JA); Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242. This consideration must be balanced against the public interest in the proper administration of justice which will in some circumstances justify interference with freedom of speech. In such cases the interest of the due administration of justice will curb freedom of speech, but only to the extent that is necessary to prevent a real and substantial prejudice to the administration of justice: Hinch and Macquarie Broadcasting Holdings Ltd v Attorney-General (Victoria) [1987] HCA 56; (1987) 164 CLR 15, 41 ‑ 42 (Wilson J).
These competing considerations are put into sharp focus in cases such as this. In this case the publications are highly critical of the litigation and suggest an involvement by a third party who may be aiding the litigation for its own self-interest. This discussion is put to the community in which the litigant is a member which would give it more of a tendency to have an effect. However, it must be remembered that this is because the members of the public who would be most interested in this discussion would be the Yindjibarndi people.
The publications in this case
The plaintiff characterise the 'sting of the publications' as being that the purpose of Mr Sandy's proceedings, which the publications assert are funded by and brought at the behest of Fortescue Metals Group (FMG), is to infiltrate and manipulate the constitution of the YAC board such that YAC makes decisions on behalf of the Yindjibarndi people that are more favourable to FMG ‑ effectively an abuse of process. The defendant argues that the Website Publication never goes so far as to actually suggest the litigation is an abuse of process.
It was put to me by counsel for the defendant that the plaintiff's characterisation of the publication may be open, but if it cannot be established beyond reasonable doubt that the plaintiff's characterisation is the only objectively open construction then it cannot constitute a contempt. The plaintiff stated that a publication can only have one meaning. If that be true it is the role of the plaintiff to establish what that meaning is and satisfy the court that the publications are not reasonably capable of any other meaning.
For the reasons that follow I am not satisfied that the publications can only bear the meaning argued for by the plaintiff.
Regard must be had to what is objectively communicated in the article overall. It is pertinent that the article is openly authored by a party to the litigation which would put the objective reader on notice of its partisan origin. The headline states 'Yindjibarndi will fight FMG ‑ sponsored litigation to stop elections' but the article's main assertion is that FMG is funding WMYAC itself. In that regard it is important to remember the plaintiff in this action is Mr Sandy as an individual. The key distinction that must be made is that the publications, whilst discussing the litigation, are mostly critical of FMG and its motivations for allegedly funding litigation brought by WMYAC. The article details conduct by FMG which is suggested to be aimed at dividing the community. Whilst it does suggest that FMG is funding litigation by WMYAC, and implicitly Mr Sandy's action, it is not clear from the article that it is alleging that Mr Sandy is engaged in any misconduct. Although the author clearly does suggest the action will be costly and may not succeed, the main thrust of the article is to deride FMG which is not a party to the proceedings before me. That this is so is enhanced by the reference to other matters in which FMG has had dealings with native title bodies which could not have any relevance to Mr Sandy.
The plaintiff in this action is unlikely to be deterred in the pursuit of justice by any consequential tide of negative opinion that could flow against FMG. The motivations of Mr Sandy are not similarly attacked and I am not convinced by the argument of the plaintiff that the article can be taken to allege that the plaintiff in this action is a proxy plaintiff acting in the interests of FMG. It is important to keep in mind that there can be many motivations for supporting another and interests can overlap for a multitude of reasons. Although the article states that FMG stands to gain from the litigation and that it is supporting the litigation of Mr Sandy, this does not necessitate that the aspersions cast upon FMG can be transferred to Mr Sandy or that Mr Sandy is acting for the benefit of and at the behest of FMG. The mere fact that FMG may gain from the litigation and is funding the litigation would not lead an objective reader to the conclusion that Mr Sandy is conducting the litigation for FMG. It is here trite to note that a non-litigant may gain from litigation of others. The fact that a non-litigant may believe it in their interest to fund litigation of that kind does not lead to the necessary inference that the litigant is conducting the litigation for the funding party.
I find the main thrust of the article is that YAC alleges that FMG are trying to divide the Yindjibarndi community in order to get a better indigenous land use agreement at the expense of the traditional owners which includes, amongst other things, funding and advising WMYAC in respect of its litigation against YAC.
The Facebook Publication makes no mention of WMYAC or Mr Sandy. The reference to the litigation in this matter 'may' link the informed reader to Mr Sandy. The Facebook Publication is in the following terms:
YINDJIBARNDI WILL FIGHT FMG-SPONSORED LITIGATION TO STOP ELECTIONS
The party that stands to gain the most from new litigation in the Supreme Court to stop an open election by members of the Yindjibarndi Aboriginal Corporation (YAC), is the party ultimately footing the bill for the action ‑ FORTESCUE METALS GROUP.
YAC looks forward to a native title ruling by the Federal Court in March that upholds exclusive possession; and to its prosecution of Fortescue Metals Group for a just settlement on the cultural and social damage it has caused.
SEE FULL STATEMENT ON YAC WEBSITE:
(…)
MEMBERS WILL NOT BE INTIMIDATED BY LEGAL THREATS
The Second Website Publication is in the following terms:
Article removed after threat of further litigation
(…)
The article titled 'Yindjibarndi will fight FMG-sponsored litigation…' has been removed as a result of a threat of further litigation, which the Yindjibarndi Aboriginal Corporation (YAC) cannot afford to defend.
The publications do not constitute a contempt
For the reasons which follow, I am not convinced beyond a reasonable doubt that the publications have brought improper pressure to bear on Mr Sandy which has a real or definite tendency to interfere with the course of justice in this case. The relevant question of whether as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice in this case can be shown is answered by reference to the time of the alleged offence: Hinch v Attorney-General (Victoria) (51) (Deane J). It is therefore not relevant that Mr Sandy did proceed with the litigation and I have subsequently decided that matter.
In deciding whether an act constitutes a contempt regard should be had to a number of considerations. The publications meanings are naturally important. I find the main thrust of the article is to attack the role of FMG in the Yindjibarndi community with regard to native title and land use agreements. This includes reference to litigation not before this court and not relevant to these proceedings. However, the discussion of Mr Sandy and this litigation in particular is part of the article's discussion. It is a brief though particularly one-sided argument about its merits and consequences and seems incidental to the main thrust of the article. It is not a fair report of the proceedings before me. The email publication is in almost identical terms to the website publication. Neither the Facebook Publication, nor Second Website Publication directly refer to Mr Sandy nor has it been established before me that they can be taken to constitute improper pressure.
The public interest in free speech is important in cases such as this where the community has a particular interest in the matters discussed or the proceedings referred to. I will also make two observations in that respect. First, that public interest may have less weight in any balancing exercise when it is a party to the litigation who discusses the proceedings. However, this is an unusual case where the litigant is also an Aboriginal Corporation and so is likely to be one of the main sources of public discussion of issues affecting the community. This would not, of course, entitle such a body as part of those discussions to bring improper pressure to bear on a litigant which has a real or definite tendency to interfere with the course of justice in a particular case.
The plaintiff in his submissions submitted that the publications were improper. Yet a communication that is itself improper may not constitute improper pressure: see Gallagher v Destiny Publications Pty Ltd. What is relevant is whether the publications brought improper pressure to bear on the litigant in this case. I do not find that these publications can be taken to constitute improper pressure.
The plaintiff also alleged that the Publications have the potential to influence its recipients (including members of WMYAC) which would have the tendency to deter Mr Sandy from seeking a curial vindication of his rights. It is not clear to me, and no evidence has been led to show, that such publications openly authored by what is a rival Aboriginal Corporation which has been an opposing litigant for many years would have that effect on the members of WMYAC.
If regard should be had to the subjective characteristics of the recipients of the communications as part of the objective assessment of the relevant materials it would be relevant that Mr Sandy is part of a rival Aboriginal Corporation and that the disputes between WMYAC and YAC have been ongoing for many years and the subject of previous litigation. Such a litigant can be expected to be less vulnerable than a first time litigant who is not part of a group. It is not necessary for me to decide whether such a consideration is relevant, because I have found in any case that the publications have not been shown to have the requisite effect beyond reasonable doubt.
This is a jurisdiction which must be exercised with great caution: John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351, 370; The State of Western Australia v Armstrong [9] (Martin CJ), [58] (Miller JA). Although the publications, where they do refer to the litigation before me, do not present a fair report of those proceedings, I am not convinced beyond a reasonable doubt that these publications, as a matter of practical reality, have a real or definite tendency to interfere with the course of justice in this case by deterring Mr Sandy from continuing the proceedings or settling them on terms that he regarded as adequate. The charge should be dismissed.
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