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Tate v Duncan-Strelec

Tate v Duncan-Strelec

Case [2014] NSWSC 1125 20 August 2014

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tate v Duncan-Strelec

Details

AGLC: Tate v Duncan-Strelec [2014] NSWSC 1125
Case: [2014] NSWSC 1125
Decision Date: 20 August 2014

CaseChat Overview and Summary

In the matter of Tate v Duncan-Strelec, the case arose from a failed joint venture agreement between two local government politicians, Tate and Duncan-Strelec. The dispute reached the court, which had to determine whether Duncan-Strelec's publication of material on the Internet, claiming Tate was a "criminal," constituted contempt of court. This arose after the conclusion of court proceedings related to the joint venture, raising questions about the applicability of contempt law in such circumstances.

The primary legal issues involved whether Duncan-Strelec's actions were actuated with the intent to exact a reprisal because Tate successfully defended the proceedings. Additionally, the court had to consider whether the law of contempt applies to conduct occurring after proceedings have concluded. Another issue was the contempt related to admissions of deleting emails after the service of a Notice to Produce. Furthermore, the court assessed if the publication of material on websites scandalised the court and whether the allegations of a breach of an implied undertaking were substantiated, particularly since the affidavits published online had not been used in the proceedings at the time of their publication.

In its reasoning, the court found that Duncan-Strelec's conduct constituted contempt of court. The court held that the publication of material claiming Tate was a "criminal" was actuated by a desire for reprisal due to the successful defence of the joint venture proceedings. The court also held that contempt law applies even after the conclusion of proceedings if the conduct is intended to undermine the court's authority. The court further found that the deletion of emails after the Notice to Produce was served constituted contempt. Finally, the court determined that the publication of the material on the Internet did scandalise the court and breached the implied undertaking by publishing affidavits not deployed in the proceedings.

The court issued orders requiring Duncan-Strelec to publish an apology and retraction of the defamatory statements made online, and to pay costs to Tate. Additionally, the court imposed a fine for the contempt related to the deletion of emails.

Orders