Tate v Duncan-Strelec
[2014] NSWSC 1125
•20 August 2014
Supreme Court
New South Wales
Medium Neutral Citation: Tate v Duncan-Strelec [2014] NSWSC 1125 Hearing dates: 14, 15, 16 and 17 July 2014 Decision date: 20 August 2014 Jurisdiction: Equity Division Before: Bergin CJ in Eq Decision: Defendant guilty of contempt of Court in respect of Charges 1, 2, 3, 5 and 6 of the Statement of Charge.
Catchwords: [CONTEMPT] - where two local government politicians fall out in respect of a failed joint venture agreement - where court proceedings in respect of the joint venture concluded - where unsuccessful party publishes material on the Internet claiming that the successful party is a "criminal" - whether party publishing the material actuated to exact a reprisal because the other party successfully defended proceedings - whether the law of contempt applies to conduct where proceedings have concluded.
[CONTEMPT] - where admissions of deletion of emails after service of a Notice to Produce.
[CONTEMPT] - whether publication of material on websites scandalises the Court.
[CONTEMPT] - where allegations of breach of implied undertaking - where publication of affidavits served but not deployed in proceedings at time of publication on the Internet.Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: A v British Broadcasting Corporation [2014] UKSC 25; [2014] 2 WLR 1243
Ainsworth v Hanrahan (1991) 25 NSWLR 155
Attorney-General v Butterworth [1963] 1 QB 696
Attorney-General v Hislop [1991] 1 QB 514
Attorney-General v Times Newspapers Limited [1973] 1 QB 710
Attorney-General v Times Newspapers Limited [1974] AC 273
Australasian Meat Industry Employees' Union & Ors v Mudginberri Station Pty Limited (1986) 161 CLR 98
Clarkson v The Mandarin Club Limited (1998) 90 FCR 354
Re Colina; Ex parte Torney (1999) 200 CLR 386
Dallas v Ledger (1888) 52 JP 328
Duncan-Strelec v Tate [2008] NSWSC 1145
Duncan-Strelec v Tate [2009] NSWSC 112
Duncan-Strelec v Tate [2010] NSWSC 872
Dunn v Bevan [1922] 1 Ch 276
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 293 ALR 384
Harkianakis v Skalkos (1997) 42 NSWLR 22
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2005) 221 ALR 823
James v Robinson (1963) 109 CLR 593
Jones v Australian Competition and Consumer Commission [2010] FCAFC 136; (2010) 189 FCR 390
Kelly & Company v Pole & Ors (1895) 11 Times LR 405
Metzler v Gounod (1874) 30 LTR 264
Moore v Clerk of Assize, Bristol [1972] 1 All ER 58
R v Dunbabin; Ex parte Williams (1935) 53 CLR 434
R v Gray [1900] 2 QB 36
R v Hinch [2013] VSC 520
R v Socialist Worker Printers and Publishers Ltd [1974] 3 WLR 801; [1975] 1 All ER 142
Re The Echo and Sydney Morning Herald Newspapers (1883) 4 NSWR 237
Tate v Duncan-Strelec [2013] NSWSC 1446
Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 533
Westpac Banking Corporation v Burke [2011] NSWSC 549
Williams v Lyons (1723) 8 Mod Rep 189
Witham v Holloway (1995) 183 CLR 525
X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630
Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775Texts Cited: Nigel Lowe and Brenda Sufrin, Borrie & Lowe: The Law of Contempt (1996, Butterworths, 3rd ed)
Robertson (ed), Oswald's Contempt of Court, Committal, Attachment, and Arrest Upon Civil Process (1910, Butterworth, 3rd ed)
Law Commission, Criminal Law - Offences Relating to Interference with the Course of Justice (Report No 96, 1979)
Report of the Committee on Contempt of Court (1979, Cmnd 5794)Category: Principal judgment Parties: Thomas Richard Tate (Plaintiff)
Amanda Duncan-Strelec (Defendant)Representation: Counsel:
BR McClintock SC/ GR Rubagotti (Plaintiff)
Amanda Duncan-Strelec (In person)
Solicitors:
Hickey Lawyers (Plaintiff)
File Number(s): 2013/367092 Publication restriction: Nil
JUDGMENT
The plaintiff, Thomas Richard Tate, seeks an order that the defendant, Amanda Duncan-Strelec, be found guilty of contempt of Court and punished accordingly. The alleged contempt is the publication of material on the Internet by the defendant to exact a reprisal against the plaintiff for successfully defending proceedings brought by the defendant and others and determined in this Court in 2010.
Both parties have over the years been involved in local government. The plaintiff is presently the Mayor of the Gold Coast in Queensland. The defendant served on the Albury local council including two terms as Mayor of Albury. The defendant was the plaintiff's campaign manager in an earlier unsuccessful attempt to be elected as Mayor of the Gold Coast. The parties were apparently good friends until they decided to embark upon a commercial project together. That project was to develop land at Lavington in New South Wales in a joint venture between the plaintiff and his wife, the defendant and her husband and the companies that each couple controlled, Wamego Pty Ltd (Wamego) in the case of the plaintiff and his wife and Dunlec Pty Ltd (Dunlec) in the case of the defendant and her husband. Things went awry and the relationship soured very badly.
The Lavington Proceedings
In 2006 the defendant, her husband, David Strelec, and Dunlec, as plaintiffs, sued the plaintiff, his wife Ruth Tate, and Wamego as defendants in connection with the joint venture (the Lavington proceedings). For reasons that are unnecessary to detail, those proceedings were not heard until June/July 2010.
The defendant, as the first plaintiff, appeared unrepresented and conducted the case on behalf of the plaintiffs. The plaintiff, his wife and Wamego were represented by solicitors and counsel. The defendant had been represented by solicitors and for some interlocutory applications, by counsel. However they ceased to act prior to trial. The defendant subsequently made a complaint to the Legal Services Commissioner in respect of the conduct of her solicitor in the preparation of the matter for hearing. I mention this only because these communications were part of the material published on the Internet, the subject of the charges of contempt.
The defendant, her husband and Dunlec, as plaintiffs in the Lavington proceedings, made claims for damages against the plaintiff, his wife and Wamego, as defendants, for breach of contract. The contract that was relied upon was said to have arisen in June 2006 after the original agreement to develop the Lavington land had terminated in February 2006 when the defendant and her husband could not provide their share of finance for the joint venture to purchase the subject land that was adjacent to land owned by Dunlec. Accordingly, the plaintiff and his wife funded the purchase of the land that was then registered in Wamego's name (the Wamego land).
In May/June 2006 the defendant and her husband were able to obtain finance and approached the plaintiff with a proposal that they might go forward with the planned development on the basis that they make a substantial payment. The plaintiff suggested that they make a payment as a proportion of the project costs to that date. They made that payment in two amounts being $205,815 and $2,500 on 20 June 2006 and claimed that at that time the plaintiff promised to issue shares in Wamego to them. The plaintiff denied that this was the arrangement. He claimed that he informed the defendant and her husband that he would "have a think about what to do" and that if he decided to sell the land he would give them their money back. He also claimed that he said that if he decided to develop the land then they would develop it together.
There was no issue in the Lavington proceedings that the plaintiff had informed the defendant's husband prior to these payments being made in June 2006 that he had someone who was interested in buying the Lavington land.
In July 2006 the defendant's husband had an unsatisfactory conversation with the plaintiff in which he suggested that the plaintiff should pay him (and the defendant) an amount of $390,000 to buy into Dunlec. It was in this conversation (accepted by the defendant's husband as having occurred) that the plaintiff said that he was going to repay the $205,815 and $2,500 that had been paid in June 2006. The plaintiff sent those two cheques to the defendant and her husband on 25 July 2006.
During interlocutory proceedings prior to the trial in the Lavington proceedings, the defendant became aware of a Share Sale Agreement dated 29 August 2006 between the plaintiff and his wife as vendors, and Christopher David Lind-Mitchell, as purchaser (the Lind-Mitchell agreement). On its face, that document suggested that the plaintiff had entered into an agreement for the sale of the shares in Wamego to the purchaser, the consideration for which was $1.67 million in cash and a number of Forestry Bonds. The completion date was thirty days from 29 August 2006. The defendant also became aware of a second Share Sale Agreement between the plaintiff and his wife and Francis Kovacevic made on 30 November 2006. It was in the same terms as the Lind-Mitchell agreement except that the completion date was 15 December 2006.
In January 2007, consent orders were made pursuant to which Wamego was restrained from, inter alia, selling or otherwise dealing with the Wamego land and the plaintiff and his wife were restrained from dealing with the issued capital in Wamego. These restraints did not prevent the plaintiff and his wife from completing the Share Sale Agreement with Mr Kovacevic on the conditions that: the plaintiff and his wife pay $247,000 into trust to be held by the solicitors for the parties pending further order or the direction of the parties; and the plaintiff and his wife were to ensure that the Forestry Bonds be held by their solicitor on the same basis.
The Share Sale Agreement with Mr Kovacevic was completed on 30 November 2007. At this time the plaintiff ceased to be a director of Wamego and Mr Kovacevic became the sole director and secretary. Wamego granted a mortgage over the Wamego land and a fixed and floating charge over the company's assets to the Bank of Queensland on 30 November 2007 and a further mortgage and a fixed and floating charge to Titan Project Developments Pty Limited on 13 February 2008.
On 24 October 2008 on the application of the defendant, her husband and Dunlec, the Court held that they were entitled to a declaration that by granting these mortgages and charges to the Bank of Queensland and Titan Projects, Wamego was in contempt of Court. However a formal declaration to that effect was not made: Duncan-Strelec v Tate [2008] NSWSC 1145; Duncan-Strelec v Tate [2009] NSWSC 112.
During the hearing of the Lavington proceedings in June 2010 the defendant sought to call Mr Lind-Mitchell to establish evidence of the Lind-Mitchell agreement. The trial judge disallowed this evidence. The defendant was also attempting to serve a subpoena on Mr Kovacevic who she claimed was avoiding service. At this time the defendant placed an advertisement in the Gold Coast Bulletin seeking assistance in locating Mr Kovacevic. The defendant was contacted by a number of people who read the advertisement and although some information was provided to her, the defendant was unable to effect service of a subpoena on him. The information that was provided by the respondents to the advertisement would surface later.
The defendant's attempts to lead evidence from Mr Lind-Mitchell and to subpoena Mr Kovacevic were apparently motivated by a desire to prove that the plaintiff had been dealing with these gentlemen at the same time that he was negotiating with the defendant, her husband and Dunlec in respect of the Wamego land. This was apparently to ground a contention that the plaintiff's version of the events and conversations should not be accepted and that the payments that they made were to be treated as part of the purchase price of the Wamego land or their share of the joint venture investment for which they were entitled to be issued with shares in Wamego.
The defendant clearly faced some evidentiary problems in the Lavington proceedings including contemporaneous emails between the parties. In particular on 31 August 2006 the defendant's husband wrote an email to the plaintiff in which he suggested that the only way they could continue with the project was "one of three ways". The first was that the defendant and her husband buy into Wamego; the second was they all go their "separate ways"; and the third was that the Family Trust of the defendant and her husband buy into Wamego at an agreed fair and equitable price. The defendant's husband asked the plaintiff to advise "which of the three options you prefer so we can make the arrangements accordingly". On 4 September 2006, the plaintiff replied "We'll go with option 2".
The Lavington proceedings were dismissed with costs on 6 August 2010: Duncan-Strelec v Tate [2010] NSWSC 872. There was no appeal from the judgment and orders of the trial judge.
The ASIC Complaint
On about 9 March 2010, prior to the hearing of the Lavington proceedings, the defendant had filed a complaint with the Australian Securities and Investments Commission (ASIC) against Wamego and the plaintiff (the Complaint). The Complaint included a claim that the plaintiff had "deliberately set out to defraud my husband and I of our rightful 50% ownership of the company Wamego". It also included allegations that the plaintiff had returned the deposit that the defendant and her husband had paid the plaintiff in respect of the property development at Lavington "repudiating the partnership".
On 14 September 2010 the defendant wrote again to ASIC referring to various companies that had been named in the Forestry Bonds and claiming that the plaintiff and Mr Kovacevic had set up "an elaborate Ponzi type scheme" using Wamego, the "false" Forestry Bonds and shares as well as property to "steal and defraud innocent people out of their property and valuable art works". The defendant requested that ASIC urgently investigate the authenticity of the Forestry Bonds claiming that she had been informed that they were false and that the plaintiff was "still trading with them". The defendant also complained about the plaintiff's alleged conduct in respect of an entity known as the Wattling Galleries, originally owned by Mr Wattling, with various other allegations relating to persons including Mr Glen Bottrill and Mr Fernando da Costa. These men had responded to the defendant's advertisement in the newspaper during her quest to find Mr Kovacevic and each had provided the defendant with information about their rather unsatisfactory experiences with Mr Kovacevic, which the defendant passed on to ASIC as part of the Complaint.
On 4 November 2010 ASIC wrote to the defendant advising that the concerns that she had expressed in relation to the partnership with the plaintiff and the shares in Wamego was a commercial dispute relating to a private agreement that fell outside the scope of laws that ASIC administered. ASIC also noted that the matter had been considered by the Supreme Court and it was inappropriate for it to intervene. ASIC advised the defendant that the Court was the "proper arbiter of the rights of the parties in a commercial dispute relating to a private agreement". In respect of the other allegations made by the defendant, ASIC advised that it was not satisfied that the Forestry Bonds were captured within the definition of "financial product" under the Corporations Act2001 (Cth) (the Act) and that there was no evidence that the Forestry Bonds constituted a Ponzi scheme and the ability to redeem them into cash appeared to be a "private matter". The defendant was advised to contact her legal adviser to determine what, if any, avenues might be open to her. ASIC also advised that if the defendant believed that she had been defrauded, she may wish to raise her concerns with the state police.
ASIC also addressed some of the concerns raised about Mr Kovacevic and advised that it was not satisfied that he had breached the Act. ASIC advised that it did not intend to take any further action in relation to the issues raised in the Complaint.
The defendant's bankruptcy
On 11 November 2011 the defendants', costs of the Lavington proceedings were assessed at $301,943.10. Judgment was entered in the amount of $305,513.10 on 16 December 2011. Dunlec Pty Ltd was wound up on 23 April 2012. Sequestration orders were made against the estates of the defendant and her husband on 7 June 2012.
The Website
On 17 June 2013 the plaintiff became aware of allegedly defamatory and contemptuous material published on a website with the domain name (the Website). It will be necessary to refer to some of the material published on the Website later in this judgment.
On 4 July 2013 the plaintiff's solicitors, Hickey Lawyers (Hickeys), wrote to the defendant referring to the Website and suggesting that its content was "obviously published" by the defendant. Hickeys made a demand that the defendant remove the defamatory material from the Website and to replace it with a retraction, an apology and a statement that the statements and the imputations within the material on the Website were false.
The defendant's letter - 4 July 2013
The defendant responded by letter dated 4 July 2013 in which she dealt with each of the statements and the imputations alleged by Hickeys to have been conveyed by the Website. The defendant responded by stating, "I stand by those statements". In respect of a claim made by Hickeys that the defendant had threatened to publish further defamatory material, the defendant responded as follows:
Yes, I advised that I intended to publish more evidence of your client's misdeeds. I finally have. It just took me longer as I had to save what little money I have left to do so.
After referring to Hickeys' statement that the defendant's conduct would not be tolerated, the defendant wrote:
My response is this:
Tell your client to suck it up and take it like a man. He has had this coming for a long time. You will note that I have not asked for anything on the blog, in spite of the fact that I could have made money from it. There is a reason for this. I published the blog to protect people from the likes of your client. All the information on the blog can be supported with hard evidence. There have been too many victims of your client and his mate with the two names already. Too many lives ruined due to their greed. I am determined to warn people about these kind of men, ruled by greed, with no mercy shown for their victims.
You, Scott, and your firm, need to take a long close look at your own conduct in this matter. You had my solicitor prevented from acting for David and I in our case against Tate, citing conflict of interest, because he acted for Tate and ourselves in the partnership agreement, yet you knowingly and willingly acted for Tate, Lind-Mitchell and Kovacevic (Kendt), in the sale of Wamego.
In response to Hickeys' request for the defendant to provide a written undertaking to cease and desist from making any further defamatory comments about the plaintiff, the defendant wrote as follows:
My answer is no, no and no. Sue me. I look forward to crossing swords with your client in court. This time I am better prepared as I have been expecting this. Indeed I welcome it. I don't care if I go to jail, your client has ensured that I have lost everything I worked all my life for anyway. By the way, you can't be sued for telling the truth.
Again, I urge you to look closely at the conduct of your firm, as the fight has only just begun, and you might be caught in the crossfire.
Jim Wilson's email - 5 July 2013
On 5 July 2013 Hickeys received an email from a person identified as "Jim Wilson" in the following terms:
As a practising lawyer, I don't think I have ever seen any greater example of stupidity by a law firm purporting to represent the best interests of their client. Talk about leading with your chin!! All you have done in writing your letter to Duncan Strelec is conveniently allow her to crystallise all the issues in her three page letter which now proudly sits on page one of her website!! You obviously don't understand how the viral world works! Need a strategic viral media consultant?!
It would appear that Mr Wilson was providing either informal or formal advice to the defendant from time to time. In fact, on 12 March 2014 James Christopher Wilson of Wilson Haynes Solicitors, a Division of Beacon Business Directions Pty Ltd, filed an Appearance for the defendant in the proceedings referred to below. A Notice of Intention to file a Notice of Ceasing to Act was filed on 10 June 2014 and a Notice of Ceasing to Act was filed on 17 June 2014.
The defendant's letter - 6 July 2013
On 6 July 2013 the defendant wrote to Hickeys by email advising that after further consideration she had decided to put a "counter offer" to the plaintiff. The defendant advised that the plaintiff had until close of business on Monday 8 July 2013 to respond "or the offer is no longer on the table". The letter attached to the email and dated 6 July 2013 included the following:
Further to my emailed letter to you on the 4 July 2013, I would like you to put the following proposal to your client.
I will arrange to have the web site removed on the following conditions:
1. That Tate use his considerable influence on Kovacevic to ensure that he pays Glenn Bottrill for the money he loaned Kovacevic to clear his debts to enable him to borrow the money to buy Wamego. As Tate sent emails to Bottrill ensuring him that Kovacevic was legitimate and offered Bottrill paintings as security, the onus is on Tate to follow through. Failing that, that Tate pay restitutuin (sic) to Bottrill at an amount agreed to between parties.
2. That your client, Tom Tate, will ensure that either he, or his business associate of some 15 years, Francis Kovacevic (also known by the name Frank Kendt) make full restitution in the manner outlined below:
3. That Tate and/or Kovacevic make full restitution to Bruce Wattling for the money he lost when Kovacevic temporarily assumed the ownership of Wattling Galleries. That includes all cash and eftpos takings. It also includes interest on that money at 7%. Further, that all artwork removed from the Gallery during that period either be returned or paid for in full.
4. That Tate and/or Kovacevic return, or pay the value of, all the paintings removed from Fernando da Costa's home. Further, that full restitution be paid to Fernando for all the money he outlayed when trying to recover his artworks.
5. That the two boats, and other goods, that Kovacevic took from Terrence Ryan either be returned or paid for at an agreed value between the parties.
6. That Tate finish the refurbishment of the Surfers Paradise Bowls Club as he promised the members he would, and allow them to re-occupy their premises under the conditions he offered them from the outset.
7. That both Tate and Kovacevic recover any worthless Forestry Bonds they have traded with and pay the bearers the initial outlay plus interest at 7% p.a.
8. That Tate publicly declare which Companies he has either a direct or indirect interest or stake in, in order to maintain full probity in undertaking his role as Mayor of the Gold Coast.
If and when, and only when, your client has followed through with all of the above, will I be prepared to take down the web site.
I am aware that your client is still in regular touch with Kovacevic and that they are still on a very friendly basis. I am also aware that Kovacevic is putting about that he is suing Tate for eight million dollars. I do not believe this for one moment. It is merely another tactic on Kovacevic's behalf to keep the police from knocking on his door. The search of the court records quickly dispeled (sic) that myth.
As you are no doubt aware, the web site has had 30,000 hits in only two weeks and I haven't finished putting up all the evidence yet. It is amazing how willing people have been to share their knowledge regarding Tate and Kovacevic/Kendt.
You will note that I have not asked for anything for myself. That was never the intention when setting up my web site. I set it up to extract some justice for the elderly victims who lost so much. I can fight for myself. They can't.
You have until close of business Monday 8 July, to respond to this offer, after which time I will be posting this letter to the web and following up on a number of other issues relevant to Tate and Kovacevic that are awaiting my attention.
In an article in The Border Mail on 6 July 2013 reporting matters about the Website, the following statements were attributed to the defendant: "I've done this out of desperation"; "It was the only avenue left to me"; "I've done this with the help of a lot of people"; "I've told them (Mr Tate's representatives) I would rather go to jail than take the blog down"; and "I am staggered to think it has had so many hits".
Further publication on the Website
The letter from Hickeys dated 4 July 2013 and the defendant's response of that date were published as an "Update" on the Website on 4 July 2013. The defendant's letter to Hickeys of 6 July 2013 was published on the Website as an "Update" on 8 July 2013.
On 8 July 2013 Hickeys wrote to Stylex Networks Inc, the host of the Website, requesting that company to take immediate action to block access to the Website. That letter was published as an "Update" on the Website on 16 July 2013. By email on the same day they refused. On 18 July 2013 a further "Update" was posted on the Website that included the statement, "We are in the process of setting up a Fighting Fund in our continuing fight for justice. Please click here to read more information about this". The linked page entitled "Fighting Fund" included the following:
Since first publishing this blog, we have had over 50,000 hits. Due to the support and encouragement we have received we have decided to establish a fund so Amanda can continue the fight for justice.
She has already lodged a submission to the Senate enquiry into ASIC and is currently awaiting a reply.
She intends to pursue the following avenues;
1. The Financial Services Ombudsman in relation to the conduct of the Bank of Queensland as well as the worthless forestry bonds being traded by Kovacevic and Tate.
2. The Federal Police in regard to the production and trade of the bonds, as well as the conduct of Kovacevic in using a false name and birth date on ASIC documents.
3. The Crime and Misconduct Commission in Queensland in relation to whether Tom Tate is a fit and proper person to be in public office.
4. The equivalent in Queensland of the Legal Services Commission of NSW in relation to Hickey lawyers conflict of interest.
5. The Queensland Police in regard to the theft of artworks from Fernando da Costa and Watling Galleries.
To do this we are appealing to the public for donations. All money donated will be placed in a trust fund with every cent accounted for.
We will post regular updates on this blog regarding the progress of our continued fight for justice.
Donations will also be used to seek legal advice on whether we have grounds to launch a class action against any of the above in the Supreme Court.
Donations can either be anonymous or publicly acknowledged on our blog. That will be a choice the donors can make.
The Earlier Proceedings
On 9 August 2013, the plaintiff filed a Summons and Statement of Charge in proceedings 2013/242125 (the earlier proceedings). The Summons and the Statement of Charge were served personally on the defendant on 15 August 2013. The relief claimed an order that the defendant take all necessary steps to cause the entirety of the Website to be deleted and an order that the defendant immediately take all steps to deregister the domain name. It also included a claim for an order permanently restraining the defendant from communicating any threat to the plaintiff of publication or disclosure of documents used in the Lavington proceedings and/or any request for payment or other benefit in return for not causing such publication or making such disclosure.
Orders were sought that the defendant be found guilty of contempt for: (a) using certain documents obtained in the Lavington proceedings for the collateral and ulterior purpose of exacting a reprisal against the plaintiff; (b) registering the domain name and publishing material on the Website in a manner calculated to exact a reprisal against the plaintiff for successfully defending the Lavington proceedings; and (c) registering the domain name and publishing material on the Website with the aim of lowering the authority of the Court as a whole and that of its judges in a manner calculated to impair public confidence in the Court and its judicial determinations. Finally an order was sought that the defendant be convicted of contempt and made liable for punishment.
The Statement of Charge alleged that the defendant used the documents obtained in the Lavington proceedings and published the material on the Website to exact reprisal against the plaintiff by exposing him to hatred, ridicule and contempt and by the improper scheme of demanding money and other benefits to desist from the publication of the material on the Website.
The earlier proceedings were first listed before the Court on 20 August 2013. The defendant did not appear before the Court on that occasion. On 20 August 2013 Hickeys wrote to the defendant advising her that the matter had been before the Court that day and that it was noted there was no appearance on the defendant's behalf. Hickeys advised that the matter had been stood over until 3 September 2013 and that any Motion for summary judgment would be returnable on that day. That letter included the following:
If you fail to appear at the hearing on 3 September 2013, the Court may make orders, including an order that you pay our client's costs, and the matter may be determined in your absence.
On 21 August 2013 the defendant wrote to Hickeys by email enclosing a letter in response to their letter of 20 August 2013. That letter included the following:
I will be attaching a copy of this letter to my proposed letter to the Registrar, in which I will be challenging whether you have any legal grounds to be attempting to have me charged with defamation and contempt of court. I will be asking for the charges to be dismissed. Failing that, I will be asking for the case to be heard here in Albury, due to extenuating circumstances.
Your summons was served on the 15 August 2013, gave me precious little time to respond, let alone make arrangements to appear on my own behalf by the required date. Your client would be aware of this more than anyone as it was due to his actions that I am in the position of being a bankrupt.
If you recall, when your client undertook proceedings against us for bankruptcy, we offered to pay him off over a two year period, which, at the time we had the assets to be able to do, but he refused as his intent at the time was to cause as much financial hardship for us as possible. He successfully pursued the bankruptcy, not only against our company, Dunlec, but also against my husband and myself personally, when he knew that all our money was tied up in the company. That, to me, shows malice.
Indeed, I believe his intention was to destroy us financially, even though he knew that doing so would mean he would get nothing, rather than accept our offer and recover his money. As a result, I have no money to be able to afford legal representation, let alone the travel and accommodation costs of attending court in Sydney at such short notice. Again your client would have been well aware of this.
After referring to other matters the defendant advised that she would endeavour to find someone to represent her but if that proved to be unsuccessful she would be "forced to self-represent". The letter continued:
In order to give you an advantage Scott, I will outline the case I intend to put before the courts. At least that way, your client will be fully aware of where I stand, not that he ever hasn't been. I am a pretty straightforward person.
I need to advise you from the outset that I have no control over the Tom Tate blog. Nor do I know where it emanates from. I merely provided the information which goes to other parties to be posted in whatever form they see fit. There are probably six degrees of separation between myself and the blog by the time the information is posted.
I did have some say in the early days, on the structure of the blog and how I would like to see it set up, but I found it too upsetting having to again go over all the evidence I uncovered after the court case, some of it from your own files which I was successful in obtaining under my Notice to Produce, Scott, which showed your client had deliberately set my husband and I up, so I disengaged and just provided the documentation proving the claims in my story.
To the best of my limited (but thanks to your client, growing exponentially) legal knowledge, there has been neither defamation, nor contempt of court. Even if there was a case to answer on the defamation, your client has made sure I am bankrupt, so what on earth is he hoping to achieve, trying to sue me in Civil Court for defamation when he knows I am a bankrupt as he made me so? Does the term "hoisted on your own petard" ring a bell?
Or does he have a more sinister motive? Is he hoping for criminal defamation? Highly unlikely he could ever achieve that, so why is he wasting the Court's time and his money trying to achieve it? There is no defamation because everything I have stated is true and the evidence to prove it is on the blog. What is he so terrified of people finding out?
Further to that, on the blog I urged people to read this story and the evidence and make up their own minds. Hardly defamatory.
As for the contempt of court, I will deal with the relevant paragraphs in his Summons and Statement of Charge and respond to them one by one.
In respect of the charge that she had used documents obtained in the Lavington proceedings, the defendant claimed that they were "public documents, and as such, any member of the public [was] privy to those documents once they follow due process in accessing them". The defendant also advised that the Forestry Bonds were annexed to an affidavit of Mr da Costa in the Supreme Court in Brisbane "so there is more than one source". The defendant claimed that neither the Forestry Bonds nor Share Sale Agreement were "privileged documents".
In respect of the claim that she had utilised an improper scheme to obtain money or benefits from the plaintiff, the defendant wrote:
When I made the offer to Tate that I would endeavour to remove the blog if he arranged for either himself or his agent Kovacevic to pay restitution to the victims of their scams, it was at a time when I still had some say in what went on the blog.
I made it quite clear to both you and Tate that I was after nothing for myself. Indeed, to do so, I believe, would have constituted blackmail, which would have defeated my whole purpose, not to mention my credibility, when sending documents to the blog authors. I am not in the habit of breaking the law and am well aware of the consequences should I do so.
Further, I did not register the domain name, nor do I know anything about where it is based.
As to the claim in the Statement of Charge in respect of lowering the authority of the Court, the defendant claimed that she was staggered by such a claim because it had been the plaintiff through Hickeys, who was "using the court process to try to silence me and extract revenge against me for telling the truth". The defendant claimed that the plaintiff repeatedly lied under oath during the Lavington proceedings and allowed "fake documents" to be held in trust of the Court knowing they had no currency and were illegal (a reference to the Forestry Bonds). The defendant claimed that she was looking forward to confronting the plaintiff "on the stand" and wrote:
If, at the conclusion of my Barrister's cross examination, your client is proven to be telling the truth, then, and only then, will I ask whoever is responsible for publishing the blog, to remove it.
The letter continued:
In summing up Scott. It appears to me your client is scared of the truth. If, as he purports, what I have provided by way of evidence is untrue, why is he misusing the legal system to try to silence me? Even if he wins and has me charged or arrested, the publicity in doing so would bring more scrutiny down on his head than he ever imagined would be possible.
He has stripped me of every asset I own, I am in ill health, both physically and psychologically, and yet he is obviously very scared of me and the information I have made public. If he has nothing to hide then he has nothing to fear. After all, when these issues were first raised before the Gold Coast Mayoral election, I was informed by the media that he was very busy telling everyone I was crazy.
I now suspect that explanation no longer washes, particularly since the evidence to validate my story is there for everyone to see, and his actions are coming to the attention of others who might actually be able to expose him for what he is.
On 27 August 2013 the plaintiff filed a Notice of Motion for summary judgment that was made returnable on 3 September 2013. The defendant did not appear before the Court on that occasion. On 4 September 2013 the plaintiff filed a Notice of Motion seeking default judgment. Both Notices of Motion were listed for hearing before Ball J on 27 September 2013.
The plaintiff served a Notice to Produce (filed on 27 August 2013) on the defendant on 28 August 2013 seeking documents including those showing the identity of persons to whom the defendant published or provided information; the Certificate of Domain Name Registration for the Website; and documents showing the transfer of registration of the domain name.
On 28 August 2013 the defendant wrote to Hickeys in terms that included the following:
In response to your Notice to Produce, I would like to advise you of the following:
1. I cannot provide any of the documents requested as I no longer have possession of them. Any emails, the very few that there might have been, have been deleted at the request of the people in control of the blog. All discussions in relation to my preferences for the website were restricted to phone calls which came from a blocked number.
This was deliberate by the "webmasters" who wished to protect their identity. I respected that request. Any documents were sent by mail care of the Post Office to names such as John Smith and John Brown, again in order to protect identities. I had no wish to know who these persons were. Any emails I sent were sent to the "contact us" email address on the web-site and then immediately deleted, again at the request of the "webmasters".
I used the internet services at public libraries to do so, again at the request of those in control of the blog. Therefore I have no documents in my possession.
...
4. I have no idea where the domain emanates from, let alone in whose name it is. I had originally intended setting up my own website when I could afford to, in order to warn people of your client's conduct, which is where the reference to "my website" came from, however other people had already done it before I got the opportunity. However, given that I did provide them with some of, but not all, of the information on the site, I suppose in some ways the use of "my website" was a Freudian slip of the tongue.
It is not my website and never has been. I wish it was but I do not have the technical skills to set up a website of this caliber (sic).
5. I have no idea what you are referring to as I have no involvement whatsoever in either the establishment of a domain name or the registration thereof.
The only information I have is a copy of what is currently on the blog and if you require any of that I am sure you can print it off for yourself and much faster than I would be able to.
On 8 September 2013 the defendant sent an email to "tomtatescam.com Contact" with a copy to Hickeys. That email was addressed to the "web masters". It forwarded a copy of the emails that the defendant received from Hickeys and a claim that they had refused to accept her assertions that she had no control over the Website. She advised that Hickeys were demanding that she remove the Website. The email continued:
I am aware from my previous reading of the website that much of the documentation you received was not provided by me, indeed, I was completely unaware of the existence of many of those documents until they were published on your site.
...
I believe that Tate is determined to have me sent to prison and does not really care about what is on the website. I have sent you these documents from Hickey's so you are aware of the gravity of what is happening.
If I were to request you to remove the website, would you be prepared to do so?
You advised me verbally weeks ago that this site has gone viral and mentioned something about an archive site as well as mirror sites that you had set up to ensure that this site could not be removed.
Could you please explain this in detail and cc a copy of your explanation to Hickey's as they refuse to believe anything I say. That could also be because they have a compulsive liar as a client and therefore judge everyone by Tate's standards.
After a further Notice to Produce was served on the defendant she wrote to Hickeys on 10 September 2013 by email in terms that included the following:
In serving your Notice to Produce to Court, I believe you are going on what I have heard referred to in court as a "fishing expedition", in the hope that my ignorance of the law will trap me into revealing something that may assist you in your endeavours to prove that I control the Tom Tate website.
Sadly, you are to be disappointed as there is only one email recipient for [email protected] and that is the actual email address itself. I do not know who the actual name behind it is.
I have repeatedly told you that I have no control over the website and domain name. If you choose to not believe me, that is your prerogative, however, it if you wish to continue to pursue this course it will be at your client's expense as you cannot get blood from a stone, as the old saying goes.
...
I recall also advising you that I have deleted all and any emails in relation to anything to do with the aforementioned website, and will continue to do so. Take that as you will.
If your client is determined to continue to try to bully, harass and intimidate me for publishing the truth substantiated by hard evidence, using his money and the law to try to frighten and force me into submission, then he has chosen the wrong person to target.
Having said that, I take no joy in the prospect of what might be ahead of me. However, I am prepared to follow through with due process and hope that justice will prevail. A good friend, who is a Barrister, told me only last month that justice and law is not always the same thing. I hope in this case he is wrong.
I don't know what your client is hoping to achieve with this whole sorry procedure, apart from depleting his bank account and forcing me into some form of abject capitulation, but whatever his motive is, it does not come from an ethical stand point.
I have made a decision from this point on to ignore all and any further correspondence from you. I may as well be hung for a sheep as a lamb, and while I have a great deal of respect for the law, I have very little for the legal system, having been failed by it on repeated occasions.
I can only hope that if I am found guilty of contempt of court, I receive the same punishment my former solicitor received, only she was found guilty of deliberately misleading the court which I believe is far more serious than anything I have done, and for that, all she received was a slap on the wrist. I guess we will soon see if all people are equal in the eyes of the law.
Last Update of Website
The Website was further updated in September 2013 in the following manner:
25th September 2013 update: Tom Tate in his usual manner is once again attempting to silence the freedom of information with his deep pockets by launching legal proceedings against Amanda. Mr. Tate is attempting to take action against Amanda for the information she has provided to this website. Mr.Tate, why are you so mad? Is it because the information is accurate, truthful, backed up with facts and just do damning you want it "removed"?
Tate is once again trying to keep this as "quiet as possible" and "out of the spotlight" by instigating proceedings in the New South Wales Supreme Court. Tate in the past has never been shy against launching legal proceedings in the Brisbane Magistrate's Court; so why the sudden change in venue now? Is it because the court case in NSW would not get the same media/attention coverage as Queensland? Why are you so determined to have removed from the site all and any information about the Fake Forestry Bonds? It is because they are the smoking gun that will bring you undone?
Amanda has in a recent email to this website, sent Notices, Affidavits, Motions and legal threats received from Hickey Lawyers to this website (available for viewing/download further below).
We believe the public should be aware of what Tate is trying to do, his true character (if you haven't gathered already) and the reason he is desperately trying to "remove" this website. One thing Mr. Tate is still learning is that once information is freely available on the Internet; it will always be available on the Internet.
Some of the allegations Mr.Tate's lawyers make in his "legal documents" are very entertaining. Firstly and foremost; nothing has been removed from this website at any point in time. When we post something we ensure it is factual, accurate and once we are satisfied only then do we permanently make it available on this website. Secondly, [email protected] is an email account; not an (sic) contact group, not a distribution list or local address book. This one was extremely entertaining - you fail to understand basic email concepts; We hope the thousands you pay your lawyers is really worth it. ...
Finally your assumptions that Amanda is the author of this website are totally wrong. She has contributed information and that is the extent of her involvement with this website and domain.
Mr. Tate, your direct and indirect actions are the sole reason this website even exists. You know that Amanda cannot afford to fight against you as you are the one who sent her bankrupt - yet you continue your malicious and calculated pursuit of her, for what? This website and its contents has been mirrored and archived copies are safe with several people already. There is nothing for you to gain in doing so; if anything - people ask the question "Why spend all this time and resources in removing something that you so strongly deny?". I think we all know the answer to that question. We have contacted local media in New South Wales and Queensland regarding the court hearing to ensure people are not "kept in the dark".
Orders - 27 September 2013
The plaintiff's Motions for summary judgment and default judgment were heard and determined by Ball J on 27 September 2013: Tate v Duncan-Strelec [2013] NSWSC 1446. The defendant did not appear at this hearing. The plaintiff conceded that he could not press for an order that the defendant be found guilty of contempt in her absence. He accepted that it would not be appropriate for the Court to grant summary judgment or judgment in default in relation to his claim insofar as it was based on an allegation of defamation where that claim had not been pleaded. In the circumstances, interlocutory relief in the nature of an injunction pending final hearing of the proceedings was sought.
Ball J was satisfied that the plaintiff had established a serious issue to be tried in respect of both defamation and whether the defendant had committed a contempt of exacting a reprisal against the plaintiff because of his success in the Lavington proceedings: [15]. Accordingly the injunctions that were granted were in respect of the claims for damages for defamation and also the claims that the defendant was guilty of contempt. His Honour made orders as sought by the plaintiff. Those orders were entered on 27 September 2013. A sealed copy of the Orders was issued in the following terms:
TERM
This matter is listed for Directions (Equity Registrar) on 8 October 2013 9:00 AM before the Supreme Court - Civil at Supreme Court Sydney.
Estimated duration: 5 minutes
ORDER/DIRECTION
1. HH gives leave to plaintiff to file in court affidavit of Scott David Eustace sworn 27 September 2013.
2. HH makes orders in terms of short minutes of order initialled and dated todays date.
Short Minutes of order:
Upon the plaintiff, by his senior counsel, giving the usual undertaking as to damages, the court orders that:
1. Until further order of the court, the defendant immediately take all necessary steps to cause publication of the webpages comprising the website located at the domain to cease.
2. Until further order of the court, the defendant refrain from further publishing the copy of the forestry bond identified by certificate number 002, which the plaintiff's legal representatives, Hickey Lawyers, sent by facsimile to the defendants former legal representatives, Kemp Strang, on 15 February 2008) (the relevant copy comprising page 3 of the facsimile).
The court further orders that:
3. The plaintiff file and serve a statement of claim on or before 4 October 2013.
4. Service on the defendant of documents in these proceedings may be effected by sending a copy of such documents to the defendant's email address, namely: (provided).
5. The matter be stood over for further directions at 9.00am on 8 Ocyober (sic) 2013.
6. The parties have liberty to apply on 3 days notice.
7. Costs be reserved.
3. These orders may be taken out forthwith.
SEAL AND
Signature S Stanbridge.L.S.
If this document was issued by means of the Electronic Case Management System (ECM), pursuant to the Uniform Civil Procedure Rules (UCPR) 3.7, this document has taken to have been signed if the person's name is printed where his or her signature would otherwise appear.
Capacity Chief Clerk
Date 27 September 2013
Service of the Orders
On 27 September 2013 at 5:39pm Hickeys sent an email to the defendant in the following terms "Please find attached a copy of the order made by the Court today". The attachment was the order extracted above. On 27 September 2013 at 5:50pm Hickeys sent a further email to the defendant in the following terms:
Further to my e-mail sent a few minutes ago, I should point out that among other things, the orders require you, pending further order of the Court:
(a) to take all necessary steps to ensure that the publication of the website ceases: order 1;
(b) not to publish the forestry bond: order 2.
You must comply with orders 1 and 2. Your failure to do so will constitute a contempt of court punishable by imprisonment.
A further copy of the Order is attached.
On 28 September 2013 at 9:00am the defendant wrote by email to Hickeys in terms that included the following:
I will send a request to the owners of the blog through their email address, cc'd to you, attaching all information you sent me, asking them to comply with orders one and two of the court.
Whether they agree is up to them. I have repeatedly told you that I neither own, nor have control over the blog, except in a collective or community sense, along with all other victims and disenfranchised ratepayers living on the Gold Coast.
Attempts to stop publication
On 30 September 2013 Hickeys wrote to MaxiiWeb Hosting Administrator Solutions (MaxiiWeb), the domain name registrant, enclosing a copy of the sealed orders of the Court dated 27 September 2013 requesting that they cease publication of the Website. Hickeys also requested that MaxiiWeb immediately provide all information in their possession that was capable of identifying the person or entity that had caused the domain to be registered.
Website suspended
On 30 September 2013 MaxiiWeb wrote to Hickeys in terms that included the following:
We have at your request suspended the account in question and I will provide you all details we have on file.
The account was registered through a Web Designer who by the looks of things is located overseas.
Please confirm you have received this email and that you can no longer access the website certainly do not condone or allow misuse or abuse on any of our systems.
Please do not hesitate to contact me if you need anything further.
On 30 September 2013 Hickeys responded to MaxiiWeb advising that the Website appeared as "this account has been suspended". Hickeys thanked MaxiiWeb for their prompt action and advised that they looked forward to receiving any further details MaxiiWeb had on file.
On 1 October 2013 at 11:06am (after MaxiiWeb had suspended the Website) the defendant sent an email to "TomTate Scam". A copy of the email was sent to Hickeys and to Ball J's associate. The email was in the following terms:
To the author of the Tom Tate Scam website,
As you will see from the email and attached orders below, I have been directed by the court to follow orders 1 and 2 below. Could I please request that you remove the offending bond and also take down your website as per the orders of the court. I am aware that I do not own or maintain the web site, however, it appears my constant assertion to that effect have not been believed by the Court. Therefore I can only comply with the Orders by requesting you to see fit to remove the material and the web site.
Please advise me what you intend to do.
Website reactivated and Mirror Websites
On 3 October 2013 Hickeys wrote again to MaxiiWeb in terms that included the following:
It appears that the account is no longer suspended and all content published on the Website has been accessible since at least yesterday.
Can you please confirm why the Website has been reactivated. If you were requested to reactivate the account and/or Website, please provide us with a copy of the relevant correspondence.
Hickeys also requested copies of access logs in respect of the account for the period from 26 September 2013 and the email address and password required to access the account together with the Registry Key/Authorisation Code for the domain name. Hickeys also advised that the same account holder may have created "mirror sites", including and requested information that was capable of identifying the person or entity that had caused the mirror site to be registered with MaxiiWeb.
On 3 October 2013 MaxiiWeb advised that there were two additional domain names associated to "Tom Tate Scam" being and and that they were configured to mirror the contents of the Website. MaxiiWeb also advised that the Website had been moved to another provider and that it had sent an email to "[email protected]" advising that the account was suspended due to a legal request with which MaxiiWeb had complied. MaxiiWeb also provided further information which identified the company YoHOST.ORG Hosting Solutions Privacy Protection in Panama as the entity to which the domain had been transferred. It advised as follows:
All our customers can manage their domains directly and it seems they have transferred the domain in question to another registrar and a separate hosting provider.
I have changed the domain access password for the above 2 domains - the only issue is that they legally own the domains so I am not sure what court order you need to get this changed? I obviously am happy to (as you have seen) oblige to (sic) any legal requests the court orders - I just don't know how "domain disputes/ownerships" would work in this situation?
...
What I also note is that the 2 mirror sites are Parked Domains so they just mirror the contents of the primary domain reason why they are showing as suspended is because they are still pointing to our servers. We are happy to change the DNS zone file so they do not resolve/load at all.
Please advise.
On 3 October 2013 Hickeys wrote to YoHOST advising that they understood the Website had been transferred to it as the new host/provider. Hickeys advised YoHOST of the orders made by Ball J on 27 September 2013 and asked that YoHOST immediately cease publication of the Website. Hickeys also sought all information capable of identifying the person or entity that had caused the domain name/website to be transferred to YoHOST and/or to engage their hosting services.
On 9 October 2013 the defendant sent an email to "TomTate Scam" with copies to Hickeys and Ball J's associate. That email was in the following terms:
To whom it may concern,
I recently wrote to you, attaching orders of the court, asking you to comply with those orders by removing the offending bond and taking down the website. I noticed last week that the bond had been removed and the website suspended, however, I noticed that the website had re-appeared the next day. I also note that you did not respond to my email.
As there is a further appearance in court due on Friday, could you please advise me of what has happened with the website before that date? Could you also copy your response to the above two persons so they are aware of what has happened.
On 9 October 2013 the plaintiff filed a Notice of Motion and served it by email on the defendant in which it sought that the proceedings be set down for final hearing and that the defendant be ordered to attend to answer a charge of contempt. That Motion was listed on 18 October 2013.
Statement of Claim
On 11 October 2013 the plaintiff filed a Statement of Claim which expanded the alleged contemptuous conduct to include the publication of the mirror domains; wrongfully and wilfully destroying documents relevant to a fact in issue in the proceedings; and failing to comply with the orders of the Court made on 27 September 2013.
The Statement of Claim included the pleaded case in defamation including the various statements published in the material on the Website and elsewhere, with numerous imputations said to arise from the publication.
In respect of the contempt case, the Statement of Claim referred to the Orders made by Ball J on 27 September 2013 and alleged that the defendant continued her publication to exact a reprisal against the defendant for him having succeeded in the Lavington proceedings. It included allegations that the defendant had published the Forestry Bond and the affidavits in the contempt proceedings on the Website and claims of scandalising the Court. It was also alleged that the defendant had destroyed documents and breached the orders of the Court in respect of the removal of the Website. It was alleged that the defendant had engaged in conduct "constituting a contumacious contempt".
On 17 October 2013 the defendant wrote to the associate to Ball J with a copy to Hickeys. That email included an apology for not being able to appear in Court and the following:
I have repeatedly stated that I do not own the website; I have requested of the web owners, by email, as per the orders of Ball J, that the offending bond be removed and the site taken down; and I am more than happy to swear to this under oath.
On 18 October 2013 Hickeys wrote to the defendant advising that the Notice of Motion had been heard in Court that day and that the matter had been set down for final hearing on 29 November 2013 before White J. Hickeys also advised that any Defence had to be filed by 1 November 2013 and that an order had been made that the defendant was to appear before White J to answer the charge of contempt.
I am satisfied beyond reasonable doubt that these misrepresentations and statements in the material on the Website were calculated to impair the confidence of the people in the Court's judgments and lower the authority of the Court and amount to scandalising the Court. I am satisfied that it was part of the defendant's aim to hurt the plaintiff by bringing into disrepute and lowering the dignity of the system of justice that found in his favour. It was part of the defendant's plan to exact a reprisal against the plaintiff for successfully defending the Lavington proceedings.
I find the defendant guilty of contempt of Court on Charge 5 in the Statement of Charge filed on 5 December 2013.
Charge 6 - Destruction of documents
Charge 6 is as follows:
The defendant has, since at least 10 September 2013, wrongfully and wilfully destroyed documents relevant to a fact in issue in these proceedings.
Particulars of Charge
(A) On 10 September 2013, the plaintiff served on the defendant a notice to produce dated 10 September 2013 and requiring the production of documents relating to her communications with persons she called the "webmasters", whom the defendant claims are responsible for publication of the websites.
(B) By email dated 10 September 2013, the defendant informed the plaintiff's solicitors that:
(i) she had no documents to produce in answer to the notice to produce;
(ii) she had destroyed documents relevant to a fact in issue in the proceeding, namely the identities of the "webmasters"; and
(iii) she would continue to destroy all documents created during the course of these proceedings and concerning the websites.
The plaintiff served two Notices to Produce on the defendant seeking documents tending to identify the "webmasters" including the defendant's communications with the "webmasters". By her letter dated 10 September 2013 the defendant alleged that the plaintiff's solicitors were on a "fishing expedition; and that she had "deleted any emails in relation to anything to do with" the Website and that she was going to "continue to do so".
During the hearing of these proceedings the defendant sought to draw the distinction between deleting emails and destroying documents (tr 142). However the defendant also said (tr 55):
And they accuse me of getting rid of Court records. Well your Honour, the only reason I thought it was all right to destroy records is because that is exactly what they had done.
This was not a submission but rather an attempt to give evidence from the Bar Table. I do not intend to take this as an admission of the destruction of documents. Rather I will deal with the matter on the evidence that has been admitted.
The plaintiff submitted that if it is the case that the defendant persists in her contention that she was corresponding with "webmasters", and if she is to be believed, it is the case that by deliberately deleting these documents she has adopted a course knowingly intended or likely to impair the proper administration of justice. It was submitted that this too is a contempt of Court.
The defendant is an experienced local government politician. I am satisfied that she is and was well aware of the need to ensure that documents pertinent to issues in dispute in litigation should not be destroyed.
Some of the claims made by the defendant in her correspondence with Hickeys are quite extraordinary. There was no reticence in her correspondence of July 2013 with Hickeys to claim that she was in control of the Website. The suggestion just four weeks later that she surreptitiously went to public libraries to use the Internet so that she would have no documents in her possession and then deleted all emails at the request of the so-called "webmasters" is very hard to reconcile with her earlier claims.
The change in approach between the letters of July 2013 and after the proceedings were instituted in August 2013, shows a course of conduct in which the defendant sought to distance herself from the capacity to control the Website and thus to do as the plaintiff asked - to have the Website suspended and access to it blocked. When she informed the plaintiff's solicitors that she intended to continue to destroy the emails in the face of a Notice to Produce, she defiantly and in my view contemptuously refused to comply with proper due process. This conduct of the deletion of the emails, which I am satisfied beyond reasonable doubt occurred, was calculated to interfere with the proper administration of justice. This conduct was in contempt of Court.
I find the defendant guilty of contempt of Court on Charge 6 in the Statement of Charge filed on 5 December 2013.
Charge 7 - Failure to comply with Court Order
Charge 7 is as follows:
The defendant has, since 27 September 2013, failed to comply with orders 1 and 2 of the Court dated 27 September 2013 restraining the defendant's publication of the website.
Particulars of Charge
(A) The plaintiff repeats particulars (B) and (G) of [1] above.
(B) On 27 September 2013, upon the plaintiff through his senior counsel giving the usual undertaking as to damages, the court made interlocutory orders, pending further order of the court, requiring the defendant, among other things, immediately to take all necessary steps to cause publication of the website referred to in [1] above (the websites referred to in [2] and [3] above being at that time unknown to the plaintiff and his solicitors);
(C) On 27 September 2013, the plaintiff's solicitors wrote to the domain name internet host and requested the suspension of the website referred to in [1] above; see email from Hickey Lawyers to Maxiiweb dated 27 September 2013;
(D) On 2 October 2013, the internet host suspended publication of all the websites;
(E) On 3 October 2013, the domain name (and thus its associated website which is referred to in [1] above) were moved to a new domain name internet host, outside the jurisdiction of the New South Wales Supreme Court;
(F) On 3 October 2013, publication of the website referred to in [1] above resumed.
This is a charge of non-compliance with a Court order and as indicated earlier is traditionally referred to as a "civil contempt". However the plaintiff asked the Court to determine this particular Charge in accordance with the criminal standard, beyond reasonable doubt. There was no penal notice contained in the Order served on the defendant: 40.7(3) UCPR. The plaintiff's solicitor sought to rectify this by including a form of notice in his email. In any event the fact that a penal notice was not contained in the Order that was served does not prevent a finding of contempt being made. Rather its absence is relevant to the form of punishment that may be imposed: Westpac Banking Corporation v Burke [2011] NSWSC 549 at [21].
As at the date of the trial the Website continued to be published. Thus it was submitted that the defendant has manifestly failed to comply with the Court's orders made on 27 September 2013. It was also submitted that the defendant has taken extraordinary steps to ensure that publication is continued in the face of those orders by causing the Website to be moved to a hosting server located outside the jurisdiction (Panama Servers) to ensure the continued publication. When the Website was once again published after it was suspended in October 2013 it was in a different form because the offending Forestry Bond was removed and was replaced with a different Forestry Bond. A finding of contempt on Charge 1 has already been made against the defendant in respect of that publication.
The terms of orders made on 27 September 2013 relevant to this Charge were as follows:
1. Until further order of the court, the defendant immediately take all necessary steps to cause publication of the webpages comprising the website located at the domain to cease.
2. Until further order of the court, the defendant refrain from further publishing the copy of the forestry bond identified by certificate number 002, which the plaintiff's legal representatives, Hickey Lawyers, sent by facsimile to the defendants former legal representatives, Kemp Strang, on 15 February 2008) (the relevant copy comprising page 3 of the facsimile).
The expression "necessary steps" in order 1 is not free from complexity. There is some uncertainty as to what might be a "necessary" step in the circumstances. For instance, a person may take steps that are thought to be in compliance but that are not causative of the cessation of the publication of the Website because some other person has taken steps to cause its cessation. There is also tension between the concept of "until further order" and doing something "immediately". A reasonable reading of the order is that if steps are taken immediately and the publication ceases, the order is spent notwithstanding the presence of the words "Until further order". This would be so irrespective of whether the steps were causative of the cessation of publication.
Order 2 required the defendant to refrain from further publishing the Forestry Bond. This appears to be cumulative on Order 1 because the Forestry Bond was part of the Website. The order appears to envisage that after cessation of the publication of the whole Website, there was a restraint on any further publication of the Forestry Bond. However it may be a stand-alone order prohibiting the publication of the Forestry Bond through any means, Internet or otherwise. The Forestry Bond has not been "further" published.
The defendant relied upon her emails addressed to the "Webmasters" to submit that the steps that she took after the order was served were in compliance with the order. The fact is that the Website, the subject of the orders of 27 September 2013, was suspended and the Forestry Bond, the subject of the order, was removed. However the cessation of the publication of the Website when it was suspended in October 2013 occurred as a result of steps taken by Hickeys. Those intervening steps by Hickeys prevent a proper assessment of whether the steps taken by the defendant were in compliance with the order.
This charge is non-compliance with a court order. The fact that some other contempt has been committed (the subject of Charge 1) does not mean that there was non-compliance with these orders. Having regard to the matters referred to above I do have a reasonable doubt in respect of this Charge.
I find the defendant not guilty of Charge 7 in the Statement of Charge filed on 5 December 2013.
Findings
I find the defendant, Amanda Duncan-Strelec, guilty of contempt of Court on Charges 1, 2, 3, 5 and 6 in the Statement of Charge filed on 5 December 2013.
I find the defendant, Amanda Duncan-Strelec, not guilty of contempt of Court in respect of Charges 4 and 7 in the Statement of Charge filed on 5 December 2013.
I will hear the parties on the form of consequential orders and I will hear the defendant in respect of any punishment that may be imposed in respect of the findings of contempt of Court.
*********
Decision last updated: 20 August 2014
4
5
1