Toll Transport Pty Ltd v Erikson (No.2)
[2018] FCCA 308
•15 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOLL TRANSPORT PTY LTD & ORS v ERIKSON (No.2) | [2018] FCCA 308 |
| Catchwords: PRACTICE AND PROCEDURE – Contempt – application that respondent be punished for contempt pursuant to r.19.02 of the Federal Circuit Court Rules 2001 (Cth) because respondent failed to comply with injunctive orders of the Court – held charges 2 and 3 proved. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.17(1) |
| Cases cited: Australian Consolidated Press Ltd v Morgan [1965] HCA 1; (1965) 112 CLR 483 Toll Transport Pty Ltd & Ors v Erikson [2017] FCCA 3120 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 |
| First Applicant: | TOLL TRANSPORT PTY LTD (ACN 006 604 191) |
| Second Applicant: | TOLL PERSONNEL PTY LTD (ACN 110 880 503) |
| Third Applicant: | TOLL HOLDINGS LTD (ACN 006 592 089) |
| Respondent: | NEIL LUKE ERIKSON |
| File Number: | MLG 2651 of 2017 |
| Judgment of: | Judge Jones |
| Hearing date: | 15 January 2018 |
| Date of Last Submission: | 22 January 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 15 February 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr Tehan |
| Solicitors for the Applicants: | Herbert Smith Freehills |
| The Respondent appeared in person. |
DECLARATIONS
The Court finds that the Applicants’ Charge 1 that the Respondent breached Orders 5 and 6 of the Orders of this Court dated 7 December 2017 is not proved.
The Court finds that the Applicants’ Charge 2 that the Respondent breached Order 7(a) of the Orders of this Court dated 7 December 2017 is proved.
The Court finds that the Applicants’ Charge 3 that the Respondent breached Order 7(b) of the Orders of this Court dated 7 December 2017 is proved.
ORDERS
The matter is listed for hearing on 13 March 2018 at 10.00am to hear and determine whether the Court should make Orders punishing the Respondent for the proved charges.
The Applicants file and serve written submissions by 4.00pm on
22 February 2018.
The Respondent file and serve written submissions by 4.00pm on
1 March 2018.
NOTATION: These orders have been amended pursuant to r.16.05(2) of the Federal Circuit Court Rules 2001 (Cth) to reflect the following change to:
Declaration 3 – deletion of “Order 7(a)” and insertion of “Order 7(b)”.
Order 1 – deletion of “12 March 2018” and insertion of “13 March 2018”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2651 of 2017
| TOLL TRANSPORT PTY LTD (ACN 006 604 191) |
First Applicant
| TOLL PERSONNEL PTY LTD (ACN 110 880 503) |
Second Applicant
| TOLL HOLDINGS LTD (ACN 006 592 089) |
Third Applicant
And
| NEIL LUKE ERIKSON |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in a Case filed on 19 December 2017, the Applicants seek findings pursuant to r.19.02 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) that the Respondent is guilty of contempt for breaching the Orders made in these proceedings on
7 December 2017 (“the Orders”), following a hearing held on that date (“the December hearing”). For convenience, the text of the Orders is set out in Appendix A to this decision. The Orders were made giving effect to a judgment of the Court in relation to the Applicants’ application for interlocutory orders.[1]
[1] Toll Transport Pty Ltd & Ors v Erikson [2017] FCCA 3120.
The hearing of the contempt charges brought by the Applicants was in relation to alleged breaches of the Orders, as particularised in paragraphs 1(a) to (c) of their Application in a Case.[2] The relevant orders sought by the Applicants in their Application in a Case are:
[2] The Applicants’ Application in a Case filed on 19 December 2017.
1. An order pursuant to Rule 19.02 of the Federal Circuit Court Rules 2001 (Cth), that the Respondent be dealt with for contempt on the basis that he breached the orders made in this proceeding on 7 December 2017 (the Orders) by:
a. failing to return to the Applicants by 14 December 2017 or at all, the uniforms and other property of the Applicants within the Respondents’ possession and control referred to in the Orders, in breach of Orders 5 and 6; (“Charge 1”)
b. publishing on the Respondent’s YouTube page after 7 December 2017, the video referred to at Item 6 of Schedule A to the Orders, in breach of Order 7(a); (“Charge 2”)
c. publishing on the Respondent’s Twitter page after 7 December 2017, a photograph which identifies or has the effect of identifying a person who is not an employee of the Applicants as being an employee of the Applicants, in breach of Order 7(b); (“Charge 3”)
…
The Respondent did not attend the December hearing. The Respondent attended a directions hearing on 19 December 2017 by telephone link. At the directions hearing, I explained to the Respondent the charges that had been laid against him by the Applicants, and the procedure of Court pursuant to r.19.02 of the FCC Rules in hearing and determining the charges. The Respondent confirmed that he understood the charges brought by the Applicants against him.
The contempt charges were subsequently heard on 15 January 2018, at which the Respondent attended in person. In relation to Charge 1, the Respondent informed the Court that he had discarded the Applicants’ uniforms in his possession. In relation to Charge 2, the Respondent informed the Court that he would remove the video footage from his YouTube page that day. In relation to Charge 3, the Respondent informed the Court that he had deleted the image from his Twitter page that morning.
Section 17(1) of the Federal Circuit Court of Australia Act 1999 (Cth) relevantly provides:
(1) The Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
Rule 19.02 of the FCC Rules relevantly provides:
(1) If it is alleged that a person has committed a contempt of the Court (other than contempt in the face or hearing of the Court), an application may be made to the Court for the person to be dealt with for the contempt.
(2) An application must:
(a) be in accordance with the approved form; and
(b) state the contempt alleged; and
(c) be supported by an affidavit setting out the facts relied on.
…
(6) When the person attends before the Court, the Court must:
(a) tell the person of the allegation; and
(b) ask the person to state whether he or she admits or denies the allegation; and
(c) hear any evidence in support of the allegation.
(7) After hearing evidence in support of the allegation, the Court may:
(a) if the Court decides there is no prima facie case, dismiss the application; or
(b) if the Court decides there is a prima facie case:
(i) invite the person to state his or her defence to the allegation; and
(ii) after hearing any defence, determine the charge.
(8) If the Court finds the charge proved, the Court may make an order for the punishment of the person.
The Applicants made their Application in a Case using an approved form that states the alleged contempt. Their Application in a Case is supported by an affidavit of Mr Anthony Andrew Keir Wood (“Mr Wood”) (a partner of the Applicants’ solicitors, and who has care and conduct of the proceedings on behalf of the Applicants),[3] together with two affidavits filed in the earlier proceedings: an affidavit of Mr Wood,[4] and an affidavit of Anthony Joseph Abraham (“Mr Abraham”) (Group General Manager, Compliance and Security of the Third Applicant).[5] A further affidavit in support of the Application in a Case was filed by Mr Wood.[6] The Applicants have also relied on video footage, most of which had been played to the Court at the December hearing. There was additional video footage played to the Court at the contempt hearing on 15 January 2018. The totality of this video footage is contained on a USB device, marked as Exhibit A2.
[3] The Affidavit of Anthony Andrew Keir Wood filed on 19 December 2017.
[4] The Affidavit of Anthony Andrew Keir Wood filed on 7 December 2017.
[5] The Affidavit of Anthony Abraham filed on 6 December 2017.
[6] The Affidavit of Anthony Andrew Keir Wood filed on 9 January 2018.
There is no dispute that the Respondent was aware of the Orders. The Respondent was aware of the Orders, which did not contain the endorsement provided for in r.29.07 of the FCC Rules. This is evidenced by the following.
The Applicants’ solicitors served the Orders on the Respondent on 7 December 2017 at 8.16pm,[7] and again on 8 December 2017 at 12.55pm.[8] The Orders were served on the Respondent by email pursuant to Order 8 of the Orders.
[7] Ibid at [4].
[8] Ibid at [7].
On 8 December 2017, the Respondent confirmed his awareness of the Orders, by the following social media posts and email correspondence:
a)
at 12.12pm on 8 December 2017, the Respondent shared a
9News article on his Facebook page which referred to the making of the Orders, and posted the comment “LMFAO” (laughing my fucking ass off”);[9]
b)at 1.24pm on 8 December 2017, the Respondent sent an email to the Applicants’ solicitors in response to their email of 12.55pm that day, which had attached the further copy of the Orders. [10] The Respondent asserted that he was unable to comply with the Orders to return the Toll uniforms and property; and
c)at 4.35pm on 8 December 2017, the Respondent sent a further email to the Applicants’ solicitors,[11] again asserting that he was unable to comply with the Orders to return the Toll uniforms and other property. He further stated that he was unable to attend the hearing listed on 18 December 2017.
[9] Ibid at [6].
[10] Ibid at [8].
[11] Ibid at [10].
The Respondent was also aware of the Orders containing the relevant endorsement. On 13 December 2017, Ms Natalie Gasper (Special Counsel) of the Applicants’ solicitors sent the Orders to the Respondent by email, in accordance with the Order providing for substituted service at the Respondent’s two email addresses.[12] The Respondent confirmed to the Court that he had received copies of the Orders containing the endorsement on 13 December 2017.
A prima facie case
[12] Ibid Exhibit AW-1, 36-41.
In accordance with r.19.02 of the FCC Rules, at the contempt hearing on 15 January 2018, the Court told the Respondent each of the allegations against him, and asked whether he admitted or denied each allegation. The Respondent admitted to each and every allegation. The Court then proceeded to hear evidence in support of each allegation (these being the affidavits of Mr Wood and Mr Abraham, which were read into transcript). The evidence given by the Applicants in support of the alleged breaches of the Orders was as follows.
Breach of Orders 5 and 6 – failing to return the Toll uniforms
Given that the Respondent admitted to the Court that he did not return the Toll uniform and property specified in Order 5 to the Applicants, I am satisfied that there is a prima facie case that the Respondent had committed contempt of the Court.
Breach of Order 7(a) – publishing “the Dastyari Video” on the Respondent’s YouTube Page
It is important to note that the reference to “the Dastyari Video” is a reference to a video that the Respondent filmed of an interaction between him and then Senator Sam Dastyari, and not those filmed by media organisations.
The evidence relied on by the Applicants in relation to this allegation of contempt is set out in the affidavit of Mr Wood filed on 9 January 2018. I note that Ms Bull is a solicitor employed by the Applicants’ solicitors. The evidence is as follows:[13]
[13] Ibid at [18].
18. On 18 December 2017, Ms Bull checked the status of the Respondent’s social media sites and informed me that although the Respondent’s Facebook page remained offline, the Respondent’s YouTube site continued to host the Dastyari video, being the video referred to in paragraph 44 of the affidavit of Anthony Abraham sworn on 6 December 2017. I caused an unofficial transcript of that video to be produced by my firm’s document production team. A copy of that transcript appears at pages 52-59 of Exhibit AW:1. That video showed an exchange between the Respondent and a women [sic] sitting next to Senator Dastyari, which has the effect of identifying the Respondent who was not an employee of any of the Applicants at the time, as an employee of the Applicants by way of a Toll branded uniform (as visible to the woman in the video) and direct statements made by the Respondent during the exchange, excerpts of which are as follows:
At 2 mins 37 secs of the Dastyari Video
Woman: “Do you work for Toll? Is this sort of activity sanctioned by Toll?”
[The Respondent]: “I thought Labor were for working class Aussies mate? You don’t like free speech?”
Woman: “Whatever you do in your uniform, you’re actually representing your employer.”
[The Respondent]: “Here we go, Labor trying to sack working class - Labor trying to sack Aussie workers.”
At 3 mins 5 secs of the Dastyari Video
Woman: “What’s your name boys? You all work for Toll do you? Do you work for Toll?”
[The Respondent]: “Here we have Labor trying to remove someone from their position because of free speech. What’s going on mate, I thought you were with us.”
A copy of this video footage was played to the Court at the December hearing, and again at the contempt hearing.
The Respondent said that he did upload this video footage to his YouTube channel, although he could not remember when he did so. The Respondent said that this video footage remained on his YouTube channel after 13 December 2017. The Respondent said that he removed the video footage from his YouTube channel sometime between 13 December 2017 and 19 December 2017.
Having considered this evidence, I decided that there is a prima facie case that the Respondent committed contempt of the Court by breaching Order 7(a) which restrained him from publishing on any media, electronic or otherwise, copies of videos listed in Schedule A to the Orders. Schedule A to the Orders included the footage that the Respondent had filmed of then Senator Dastyari (see Appendix A).
Breach of Order 7(b) – publishing photographs of a non-employee of Toll in Toll uniform on the Respondent’s Twitter page
The evidence relied on by the Applicants in relation to this allegation of contempt is set out in the affidavit of Mr Wood filed on
9 January 2018:[14]
19. I am informed by Ms Bull and believe that during Ms Bull’s review of the Respondent’s social media sites, the Respondent’s Twitter page continued to host four images, a copy of which appears at page 60 of Exhibit AW:1. In the top left-hand side image, the Respondent is shown in a florescent [sic] orange polo shirt, with the shoulder of a person wearing a Toll uniform in the corner of the image. In the top right-hand side image, a person wearing a Toll uniform stands in front of a police officer and appears to have another person in a headlock. The person wearing the Toll uniform appears to be Ricky Turner, a known associate of the Respondent.
[14] Ibid at [19].
The Respondent agreed that Mr Ricky Turner (“Mr Turner”) is an associate of his, and is the person wearing a Toll uniform in a photograph on the front-page of the Herald Sun newspaper on 5 December 2017 (Exhibit A1). There is no dispute that Mr Turner has never been a Toll employee.
A colour copy of the Respondent’s Twitter page (as annexed to Mr Wood’s affidavit filed on 9 January 2018)[15] was produced by Counsel for the Applicants, and marked as Exhibit A3.
[15] Ibid Exhibit AW-1, 60.
The Respondent agreed, and I am satisfied that the person in the photograph situated in the top right-hand corner of Exhibit A3, is wearing a Toll uniform, standing in front of a police officer, and who appears to have another person in a headlock, is Mr Turner.
The Respondent said that he uploaded the images contained in Exhibit A3 to his Twitter page, and that they remained his Twitter page after
13 December 2017.
Having considered this evidence, I decided that there was a prima facie case that the Respondent had committed contempt of the Court by breaching Order 7(b) of the Orders. Order 7(b) restrained the Respondent from publishing any video or photograph on any media, electronic or otherwise, which identifies or has the effect of identifying any person who is not an employee of the Applicants, as an employee of the Applicants, whether by way of uniform, branding, or other livery.
Contempt Charges
The standard of proof on all charges of contempt is a requirement that the charge be proved beyond reasonable doubt. As stated by the plurality of the High Court of Australia in Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525:[16]
The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt “must realistically be seen as criminal in nature.”…The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise.
(Footnotes omitted)
[16] Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 534.
Before turning to the evidence given by the Respondent in his defence, it is appropriate to comment generally on the Respondent’s oral evidence at the contempt hearing. Even taking into account the fact that the Respondent was self-represented, and that (he says) he a person with limited education, I did not find the Respondent to be a particularly persuasive witness for the following reasons:
a)the Respondent’s recall of certain matters (such as the dates that he removed the video and image from his YouTube and Twitter pages, respectively) was poor. The Respondent gave evidence that he had a “bad memory.” However, when I informed him that this evidence may have consequences for the weight that I give his evidence, he retracted the statement. The Respondent nevertheless continued to give evidence that he could not recall the dates; and
b)the Respondent gave evidence that had not completed his secondary education beyond year eight. The Respondent was taken by Counsel for the Applicants, to his Candidate Registration Form that he submitted to the Applicants for the purpose of applying for his position in Burnie, Tasmania.[17] In that form, the Respondent stated that he had completed year 11. The Respondent maintained in cross-examination that he only completed year eight, and then said, “[w]ho doesn’t lie on their résumés. You lie to make yourself look good, applying for a job. So that’s what I did.” I formed the view that it was likely that when it suits him, the Respondent has a tenuous relationship with the truth.
[17] The Affidavit of Anthony Abraham filed on 6 December 2017, Exhibit AA-1, 146.
Charge 1 - Failing to return Toll uniforms in breach of Orders 5 and 6
The Respondent was invited to state his defence to the allegation, and gave sworn evidence as follows:
a)the Respondent was given Toll uniforms by the First Applicant when he worked at a Toll site in Campbellfield, Victoria, from 6 September 2011 to 3 March 2014. The Respondent says that he was not provided with any Toll uniforms when he commenced working for the Second Applicant at their site in Burnie, Tasmania, from 8 May 2017 to 24 May 2017;
b)the Respondent agreed that the list of Toll uniform and property specified in Order 5 was an accurate summary of the uniform given to him by the Applicants, save for that he says he was given two sets of boots (not one);
c)most of the Toll uniform and property given to him was damaged when he worked for the First Applicant in his first period of employment, and later when he worked at other worksites wearing a Toll uniform;
d)the only Toll uniform retained by the Respondent up until the “Dastyari incident” on 9 November 2017 was the orange/green coloured shirts with Toll branding, the high visibility jacket with Toll branding, and a grey colour drill cargo with Toll branding (items (c), (i) and (j) of Order 5);
e)the Respondent subsequently discarded all of these items of uniform after communications with the Applicants’ lawyers sometime in November 2017, by putting them in a rubbish bin at his home; and
f)when the Court took him to a copy of the front page of the Herald Sun newspaper dated 5 December 2017, which has a large image depicting Mr Turner wearing a Toll uniform (Exhibit A1), the Respondent stated that Mr Turner got this uniform from one of Mr Turner’s friends. The Respondent asserted that Mr Turner has a “bunch of high-vis [sic] shirts” in his bedroom. The Respondent denied that he gave Mr Turner his Toll uniform.
Having heard the Respondent’s evidence about his retention of the Toll uniform, the Applicants informed the Court that it only pressed its charges of contempt in relation to the Respondent’s breach of Orders 5 and 6, insofar as it concerned Toll uniforms specified in paragraphs (c), (i) and (j) of Order 5.
In the course of the Respondent’s oral evidence, it emerged that a search warrant was executed by Victoria Police to search the Respondent’s house for various items, which included Toll uniforms and his mobile phone. The search warrant is dated 28 December 2017 (Exhibit R1). It appears that the search warrant was issued following an incident at the Milo Yiannopoulos event held in Kingston, in respect of which the Respondent was charged with Affray and Assault with Weapon. Upon appearing at the Wonthaggi Magistrates’ Court on 29 December 2017, an Undertaking of Bail was entered into, which included a condition that the Respondent is “[n]ot to associate with any co-accused including Ricky TURNER” (Exhibit R2).
In cross-examination, the Respondent gave the following evidence:
a)the Respondent was aware, from around mid-August 2017 onwards, that the Applicants wanted him to return to them the Toll uniforms in his possession;
b)the Respondent continued to wear the Toll uniform after that date;
c)the Respondent agreed that he received correspondence from Mr Wood at his email address on 9 November 2017, which referred to the Applicants’ previous attempts to recover Toll uniforms from him, and which stated that the Applicants seek “the immediate return of its branded uniforms, equipment and any other Toll property within your possession and control”;[18]
d)the Respondent agreed that on 10 November 2017, by reply email to Mr Wood, he said:[19]
[18] Ibid Exhibit AA-1, 449-451.
[19] Ibid Exhibit AA-1, 452.
I will be returning the TOLL uniform as soon as possible and apologise for the media attention involving the company.
…
I have removed any and all other references to TOLL from the social media that is under my control and will in future not wear or even mention anything related to TOLL to avoid possible Legal Action in the future.
This is not an admission of guilt but a good gesture to TOLL.
e)the Respondent did not return the Toll uniforms to the Applicants because he was living on the coast of Victoria, and did not want to spend money on a full tank of petrol to go to the Melbourne CBD to deliver the uniforms. Instead, he discarded the uniforms in his rubbish bin. The Respondent said that after the “Dastyari incident”, he felt compelled to get rid of the “evidence”;
f)the Respondent accepted that it would have been reasonable for him to have told Mr Wood, at the time, that he had discarded the uniform, and said that he should have done so. The Respondent said that the police had searched his house recently, and had not found any Toll uniforms;
g)the Respondent could not understand why the Applicants wanted a worn-out uniform to be returned to them. As the Respondent understood it, what the Applicants wanted was that he no longer wear a Toll uniform;
h)the Respondent agreed that when he received a copy of the Orders on 7 December 2017, he was required to return the uniform. The Respondent agreed that he did not inform the Applicants, nor the Court, that he had discarded the uniform until the directions hearing on 19 December 2017;
i)the Respondent agreed that he received an email from Mr Wood on 8 December 2017 that attached a copy of the Orders, and which drew his attention to the requirements under Orders 5, 7(a) and 7(b).[20] The Respondent agreed that he replied by email on 8 December 2017, which he commenced by saying that he “understood.” However, the Respondent pointed out that he then said “the uniform can not be returned as most of the uniform was damaged and thrown out over the years… What was left was discarded a while ago and no longer in my possession”;[21] and
j)the Bail Condition (Exhibit R2) meant he could not contact Mr Turner about attending the contempt hearing to give sworn evidence.
[20] The Affidavit of Anthony Andrew Keir Wood filed on 9 January 2018, Exhibit AW-1, 18 -19.
[21] Ibid Exhibit AW-1, 20.
The Applicants submit that the Court can find beyond reasonable doubt that the Respondent breached Orders 5(c), (i) and (j), because he has not returned to the Applicants those Toll uniforms in his possession and control.
The Applicants submit that the Respondent’s evidence that the Toll uniforms are not in his possession does not stand up to scrutiny, given that:
a)since at least mid-August 2017, the Respondent understood that the Applicants wanted their uniform to be returned;
b)on 9 November 2017, the Respondent was told in clear terms by the Applicants’ solicitors that the Applicants wanted the immediate return of Toll uniforms in the Respondent’s possession and control;
c)on 10 November 2017, the Respondent promised or undertook to return the Toll uniforms as soon as possible;
d)the Respondent understood that the Orders he received on 7 December 2017 required him to return the Toll uniforms in his possession and control to the Applicants; and
e)notwithstanding his undertaking to the Applicants made on 10 November 2017 to return the Toll uniform, it was not until 19 December 2017 that the Respondent informed the Applicants and the Court that he had “discarded” the uniforms.
With respect to the question of the Toll uniforms in the Respondent’s control, the Applicants submit that it is not mere coincidence that on 5 December 2017, Mr Turner appeared on the front page of the Herald Sun newspaper wearing a Toll uniform. The Applicants submit that the Respondent’s evidence that he did not give his uniform to Mr Turner should not be accepted by the Court.
The Applicants submit that the Respondent could have, through his intermediaries, taken steps to ensure that Mr Turner attended at the contempt hearing, without breaching the Bail Condition. The Applicants submit that given Mr Turner’s absence, the Court is entitled to infer that Mr Turner’s evidence would not have assisted the Respondent’s case: Jones v Dunkel (1959) 101 CLR 298.
I will not draw the inference that the Applicants seek from the absence of Mr Turner attending to give sworn evidence in these proceedings. The Bail Condition is very broad, and I am satisfied that the Respondent genuinely believed that he would be in breach of the Bail Condition if he made any attempt to have Mr Turner attend the hearing and give sworn evidence. I note that it was open to the Applicants, given their clear suspicion that the Respondent had given his Toll uniform to Mr Turner, to issue a subpoena to Mr Turner to attend and give evidence at the contempt hearing.
I do agree with the Applicants’ submission that it is unlikely a mere coincidence that Mr Turner was wearing Toll uniform as pictured in the Herald Sun newspaper on 5 December 2017. I agree that the Respondent was aware, as early as mid-August 2017, that the Applicants wanted the Toll uniforms to be returned, and that the Respondent undertook to return the uniforms to the Applicants on
10 November 2017.
However, the Respondent’s evidence that he believed the Applicants’ purpose was to ensure that he no longer wore a Toll uniform, is plausible. Consequently, I cannot rule out the possibility that the Respondent did discard the Toll uniforms in his rubbish bin. The Respondent’s failure to inform the Applicants that he had done so likely just reflects a lack of common courtesy on the Respondent’s part.
Accordingly, I am not satisfied beyond reasonable doubt that the Respondent breached Orders 5 and 6.
Charge 2 -– Publishing the “Dastyari Video” on the Respondent’s YouTube page in breach of Order 7(a)
The Respondent was invited to state his defence to this allegation, and gave sworn evidence as follows:
a)the Respondent had hundreds of images and videos on various social media sites, and did not realise that this video was on his YouTube page until he was informed by the Applicants; and
b)the Respondent could not recall precisely when he deleted the video from his YouTube page, but believed that it was some time between 13 December 2017 and 19 December 2017.
In cross-examination, the Respondent gave the following evidence:
a)the Respondent posted the “Dastyari video”, which he had filmed of his interaction with the Senator Dastyari in November 2017, on two social media sites: the Patriot Blue Facebook page and his YouTube page;
b)the Respondent could not remember when he was told by the Applicants’ solicitors (after the endorsed Orders were made by the Court on 13 December 2017) that he was in breach of the Orders;
c)
when the Respondent received the endorsed Orders on
13 December 2017, he deleted the video on the Patriot Blue Facebook page, but he forgot that the video footage was on his YouTube page;
d)the Respondent said that he deleted the “Dastyari video” from his YouTube page “immediately” after he received correspondence from the Applicants’ solicitors that the “Dastyari video” was on his YouTube page. The Respondent said that he could not remember the date that he received this correspondence, or the date that he deleted the video from his YouTube page; and
e)although the Respondent deleted the video footage from his YouTube page, he did not really believe he was breaching the Orders. The Respondent said that his understanding was that the word “publishing” referred to when something was uploaded to a social media site. When he was asked by Counsel for the Applicants whether he really believed that he was allowed to leave any video identified in the Orders that was already posted on a social media site, to remain on the site, the Respondent was non-responsive, saying that he had already said three times that he had forgotten about his YouTube post.
I am satisfied that when the Respondent gave evidence that he removed the “Dastyari video” from his YouTube page after receiving correspondence from the Applicants’ solicitors, the Respondent was referring to email correspondence sent by Mr Wood dated 14 December 2017. This is because in the last paragraph of that correspondence, it states: “[w]e appreciate that your Facebook account appears to have been removed at approximately 6.30pm on 13 December 2017. Your Twitter and YouTube pages remain active.” [22] Attached to that correspondence are copies of posts from the Facebook page “Neil Erikson”, which, according to the Respondent, was a page administered by three other administrators and himself, and was available for viewing by the public.
[22] Ibid Exhibit AW-1, 43-48.
It is apparent that during the course of the proceedings, an issue arose as to whether the use of the word “publishing” in Orders 7(a) and 7(b) would convey to the Respondent that he was required to remove the videos and/or photographs referred to in Orders 7(a) and 7(b) from social media or electronic sites.
Orders were made on 15 January 2018 for the parties to file and serve written submissions in relation to the meaning of the word “publishing” as used in the Orders. The Applicants were required to file and serve written submissions by 22 January 2018, and the Respondent by 29 January 2018. The Applicants filed their written submissions on 22 January 2018. The Respondent did not file any written submissions.
For the reasons set out below, I am satisfied that the Orders conveyed to the Respondent that he was required to both refrain from posting, and to remove the videos and/or photographs as described in Orders 7(a) and 7(b) that were already posted on social media or electronic sites.
In Australian Consolidated Press Ltd v Morgan [1965] HCA 1; (1965) 112 CLR 483, Barwick CJ said (at 492):
…If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense which the Court assigns to it…
I agree with the written submissions of the Applicants that the meaning of “publishing” in this context must be assessed by its ordinary meaning.[23]
[23] The Applicant’s Outline of Submissions filed on 22 January 2018 at [5].
In their written submissions, the Applicants referred to the Australian Concise Oxford Dictionary (3rd edition) definition of the word “publish”. The definition of “publish” includes both to “make generally known” and to “communicate to a third party”. I agree with the Applicants’ submission that: [24]
8. The use of the gerund – publishing – emphasises that the prohibition is directed towards future conduct of the Respondent, irrespective of whether that conduct is an omission (that is, a failure to remove a post, and thereby continuing to publish it) or a commission (that is, an active step to post).
[24] Ibid at [8].
The Court was directed to the decision of Dow Jones & Company Inc v Gutnick [2002] HCA 56, in which the High Court of Australia considered whether an article posted online on a server in New Jersey, United States of America, was “published”, when it was accessed and read elsewhere in the world. This was in the context of an action for defamation. The High Court unanimously held that the act of “publication” occurred at the point at which the article was downloaded and comprehended by a reader. The plurality judgment (Gleeson CJ, McHugh, Gummow and Hayne JJ) held:[25]
26…[Publication] is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension…
[25] Dow Jones & Company Inc v Gutnick [2002] HCA 56 at [26].
I am satisfied that the meaning of “publishing” which ought fairly to have been in the contemplation of the Respondent was both the act of uploading or making the videos and/or photographs available on the relevant social media sites, and continuing to make that material available on those sites for more people accessing the sites to view. In other words, the Respondent well understood that the use of the word “publishing”, in these circumstances, required him to refrain from further publishing and to remove the videos and/or photographs described in the Orders.
The Respondent’s evidence regarding his understanding of the meaning of the word “publishing” in the Orders was not convincing. In cross-examination, when confronted with the reality of his evidence about his understanding of the word, the Respondent avoided answering Counsel for the Applicants. Rather, the Respondent repeated his earlier evidence that he had simply forgotten that the video was on his YouTube page. Moreover, his evidence that he believed that the word “publishing” meant the act of uploading onto a social media site only, is inconsistent with his evidence that when he received the endorsed Orders on 13 December 2017, he removed the video footage from the Patriot Blue Facebook page. Clearly, by engaging in this act, the Respondent understood that the Orders, which used the word “publishing”, required him to remove the video footage from social media sites.
The Applicants submit that the Court can find beyond reasonable doubt that the Applicant breached Order 7(a). The Applicants submit that the Respondent’s evidence about when he took steps to remove the video footage from his YouTube page was not consistent. Consequently, the Applicants submit that his evidence lacked credibility. The Applicants further submit that the Respondent’s evidence that he forgot about his YouTube page because he is active on numerous sites/social media pages does not stand up to scrutiny, given his evidence that he posted the video footage on only two social media sites.
I agree with the Applicants’ submission that the Respondent’s evidence that he failed to scrutinise his YouTube pages because he has hundreds of images and videos on various social media sites, is unconvincing. The Respondent’s evidence is that he posted the relevant video footage on only two social media sites; the Patriot Blue Facebook page, and his own YouTube page. Given the notoriety of the particular incident in the general media, I do not accept that the Respondent had forgotten about his YouTube page, or forgotten that he had posted the video footage on his YouTube page.
I found the Respondent’s evidence regarding when he removed the video footage, to be vague and inconsistent. In his evidence-in-chief, the Respondent said that he could not recall the date that he removed the video footage from his YouTube page, but believed it was sometime between 13 December 2017 and 19 December 2017. In cross-examination, the Respondent said that he deleted the video footage “immediately” after he received the correspondence from the Applicants’ solicitors. It is relevant to note that, at the directions hearing on 19 December 2017, the Respondent stated to the Court that he would remove the video footage from his YouTube page that same day. Of course, this was unsworn evidence, but it was given by the Respondent to the Court in a spontaneous and direct manner. The Respondent’s changed evidence that he deleted the video footage from his YouTube page “immediately” after he received the correspondence from the Applicants’ solicitors is also inconsistent with the evidence given by Mr Wood, that he was informed by a solicitor employed by the Applicants’ solicitors that the video footage remained on the Respondent’s YouTube page on 18 December 2017.[26] Mr Wood was not cross-examined, however I am satisfied this is evidence the Court can rely on.
[26] The Affidavit of Anthony Andrew Keir Wood filed on 9 January 2018 at [18].
I find that the Respondent removed the video footage from his YouTube page on or around 19 December 2017.
Accordingly, I find beyond reasonable doubt, that the Respondent breached Order 7(a) of the Orders, and that the Applicants’ Charge 2 is proved.
Charge 3 – Photographs of a non-employee of Toll in a Toll uniform posted on the Respondent’s Twitter in breach of Order 7(b)
The Respondent was invited to state his defence to the allegation and gave sworn evidence as follows:
a)the Respondent had hundreds of images and videos on various social media sites, and did not realise that this image was on his Twitter page until informed by the Applicants; and
b)the Respondent initially said that he deleted the images from his Twitter page “immediately” after being informed about it by the Applicants’ solicitors, but could not recall when this occurred. However, when I reminded him that at the directions hearing on 19 December 2017, he said to the Court that he had removed the images from his Twitter page that morning, the Respondent said that “sounds about right.”
The Respondent gave oral evidence that when the Victoria Police executed the search warrant, they took his mobile phone. The Respondent gave further evidence that he could only access his social media accounts using his mobile phone number. I am not sure what the relevance of this evidence is, as the search warrant was executed on 29 December 2017; sometime after when the Respondent says that he deleted the images from his Twitter account.
In cross-examination, the Respondent gave the following evidence:
a)the Respondent does not use his Twitter account often, and he “totally forgot” that he even had a Twitter account. The Respondent also said that he did not check his Twitter account, because he did not think that there was “anything on it”; and
b)the Respondent agreed that he posted images on his Twitter account on 27 November 2017 (Exhibit A3).[27] However, the Respondent maintained that he did not recall that he had the Twitter account when he received the Orders, both on 7 December 2017 and 13 December 2017.
[27] Ibid Exhibit AW-1, 60.
The Applicants submit that the Court can find beyond reasonable doubt that the Applicant breached Order 7(b), because although his evidence changed in relation to when he removed the images from his Twitter account, his evidence was ultimately that he removed them on the morning of 19 December 2017. The Applicants further submit that his evidence that he did not recall that he had a Twitter account when he received the Orders is not credible, in circumstances where he had only recently (on 27 November 2017) posted images on his Twitter account.
I find the Respondent’s evidence that he had forgotten he had a Twitter account to be completely implausible, in circumstances where on 27 November 2017, he posted the images of Mr Turner in a Toll uniform, appearing to hold a man in a headlock with a police officer in the background, on his Twitter account. The heading to those images is “classic stitch up”.
Although the Respondent’s evidence about when he removed the images on his Twitter page changed, I am satisfied that he removed the images on 19 December 2017.
Accordingly, I find beyond reasonable doubt that the Respondent breached Order 7(b) and that the Applicants’ Charge 3 is proved.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 15 February 2018
Appendix A – Orders of 7 December 2017
THE COURT ORDERS THAT:
The proceedings are adjourned for directions on 18 December 2017 at 9.30am.
Leave be granted to the Applicants to file the affidavit of Anthony Andrew Keir Wood affirmed on 7 December 2017.
Pursuant to r.6.14 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), leave is granted to the Applicants to serve the Respondent the Applicant’s Application, Statement of Claim, Genuine Steps Statement and Affidavit of Anthony Joseph Abraham filed on 6 December 2017 by email to the following two email addresses: [omitted].
Pursuant to r.1.06 of the FCC Rules, r.6.19 is dispensed with.
Pursuant to s.545(2)(a) of the Fair Work Act 2009 (Cth), the Respondent return to the Applicants at the offices of its lawyers located at level 43, 101 Collins Street Melbourne in the State of Victoria, uniforms of the Applicants’ and all other property of the Applicants’ within the Respondent’s possession or control, including but not limited to:
(a)1 claret coloured flinders boot;
(b)3 orange/green coloured polo tops with Toll branding;
(c)2 orange/green coloured shirts with Toll branding;
(d)1 orange/green coloured fleece tops with Toll branding;
(e)3 grey coloured drill cargo with Toll branding;
(f)1 grey coloured cap with Toll branding;
(g)1 grey coloured beanie with Toll branding;
(h)1 grey coloured wide-brim hat with Toll branding;
(i)1 orange/green coloured high visibility jacket with Toll branding;
(j)1 grey coloured drill cargo with Toll branding; and
(k)1 black coloured men’s belt with Toll branding.
Order 5 herein shall be complied with by no later than 14 December 2017.
Until the final determination of these proceedings and upon the usual undertakings as to damages given by the Applicants, the Respondent by himself, his employees, servants or agents be and are hereby restrained from:
(a)publishing on any media, electronic or otherwise, copies of videos listed in Schedule A to this Order;
(b)publishing any video or photograph on any media, electronic or otherwise, which identifies or has the effect of identifying any person who is not an employee of any of the Applicants, as an employee of any of the Applicants, whether by way of a uniform, or branding, or other livery of any of the Applicants or by direct statements that he or she is an employee of any of the Applicants; and
(c)publishing any video or statement on any media, electronic or otherwise, which refers to, directly or indirectly, the termination of his employment or the termination of another employee’s employment by any of the Applicants.
The Applicants forthwith serve on the Respondent a copy of today’s Order by email to the following email addresses: [omitted].
Any further documents are to be served on the Respondent by email to the following two email addresses: [omitted].
AND THE COURT NOTES THE FOLLOWING ENDORSEMENT:
A.The Respondent will be liable to imprisonment, sequestration of property and punishment for contempt if:
(a)the Respondent fails to comply with Orders 5 and 6 herein, or neglects or refuses to comply with Orders 5 and 6 herein; or
(b)the Respondent fails to comply with Order 7 or disobeys Order 7.
Schedule A
A video posted on the Respondent’s Facebook page on or about 21 May 2015 in which he appeared in Toll Uniform.
A video posted on the Respondent’s Facebook page on or about 26 June 2015 in which he appeared in Toll Uniform, and expressed the view that Muslims in France were “beheading people” that accordingly France was in “lock down”.
A video posted on the Facebook page of the “United Patriots Front” on or about February 2016, in which he appeared in Toll Uniform, and criticised Toll, asserting that it had terminated his employment without justification.
A video posted on his Facebook page on or about 29 May 2017 in which the Respondent appeared in Toll uniform, played the voice recording of an officer of the Second Applicant terminating his employment, said that his employment was terminated in circumstances where he had not breached any term of the second employment agreement, said that Toll was persecuting him, and called for a boycott of Toll.
A video posted on the Respondent’s Facebook page, and on the “Vote No Australia” Facebook page on or about 19 August 2017 in which the Respondent appeared in Toll uniform, and made a series of statements opposing the legalisation of same sex marriage.
Footage that the Respondent had filmed of Senator Sam Dastyari and posted on the Facebook page of an organization called “Patriotic Blue” on or about 3 November 2017.
A video posted on the Respondent’s Facebook page on or about 18 November 2017, in which he asserted that Toll terminated Mr Scott Moerland’s employment without justification, asserted that Toll is a racist workplace that treats Indian people “like second class citizens” and asserted that Toll provided “a toilet for the white workers and a toilet for the brown workers.”
(Emphasis in original, the Respondent’s email addresses omitted)
7
3