Webster v Brewer
[2020] NZHC 3519
•22 December 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2020-488-000072
[2020] NZHC 3519
BETWEEN ANNE WEBSTER
First Applicant
PHILIP WEBSTER
Second ApplicantZOE SUPPORT AUSTRALIA
Third ApplicantAND
KAREN BREWER
Respondent
Hearing: 9 December 2020 Counsel:
S E Closey, Y Dong and B White for the Applicants No appearance by or on behalf of the Respondent
Judgment:
22 December 2020
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Tuesday, 22 December 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Russell McVeagh, Auckland
WEBSTER v BREWER [2020] NZHC 3519 [22 December 2020]
[1] This is an application by Anne Webster, Philip Webster and Zoe Support Australia for the following orders under s 16 of the Contempt of Court Act 2019:
(a)That a warrant be issued committing the respondent, Karen Brewer, to a term of imprisonment as the Court considers appropriate;
(b)That a fine be imposed on the respondent, in part or in whole, payable to the applicants in recognition of loss suffered by the applicants as a result of the respondent’s refusal to comply with a Federal Court of Australia order dated 18 June 2020 registered in New Zealand on 22 June 2020 (the Order);
(c)An award of costs in favour of the applicants for, and incidental to, the application on a solicitor-and-client basis; and
(d)Any other relief that the Court considers just.
[2] The applicants say that the respondent has fragrantly and repeatedly breached the Order, that she has demonstrated a clear disinclination to respect the authority of the Court or comply with its processes and that they have suffered ongoing harm and distress due to the nature of the breaches of the Order. The respondent has taken no steps, formal or informal, to oppose or take part in the proceeding notwithstanding service of all documents on her.
Background
[3] This matter arises out of defamation proceedings in Australia. On 1 May 2020, the applicants filed defamation proceedings against the respondent in the Victoria Registry of the Federal Court of Australia. On 22 September 2020, the Federal Court of Australia issued a judgment in the defamation proceedings awarding the applicants AUD 875,000 in relation to publication by the respondent of defamatory publications. The defamatory publications contained some of the most serious and damaging statements imaginable, including to the effect that:
(a)Anne Webster, a member of Parliament and social worker, and her husband, Philip Webster, a medical practitioner, are involved in a secret paedophilia network;
(b)Anne Webster’s family has engaged in incest, resulting in her granddaughter’s genetic defect; and
(c)Zoe Support Australia, a not-for-profit organisation that provides community-based parenting support to disadvantaged young mothers aged between 13 to 23, who otherwise lack such support and services, is a cover for the supply of vulnerable teenage girls and babies to a secret paedophilia network.
[4] In her damages judgment, Gleesen J recorded that, in text and video posts uploaded over approximately two weeks, the respondent branded the Websters and Zoe Support as participants in a secretive criminal network involved in the sexual abuse of children. The respondent also made a range of defamatory utterances about Anne Webster. The Judge found that each of the defamatory imputations sued on by the applicants was false and untrue. The Judge also found that the majority of the imputations alleged participation in deliberate and heinous criminality and moral depravity. Considered as a whole, they were the most serious kind of defamatory imputations that could be levelled at an individual or a charity.
[5] As part of the proceedings, the applicants sought and obtained the Order, being a permanent injunction against the respondent that:
(a)required her to remove a series of defamatory posts and videos regarding the applicants from a public Facebook page maintained by the respondent; and
(b)permanently restrained the respondent from authoring or uploading to the Internet any further material to the same purport or effect as any of the defamatory publications.
The Order was granted by the Federal Court of Australia on 18 June 2020. It was registered in the High Court of New Zealand at Whangarei under s 57 of the Trans- Tasman Proceedings Act 2010 on 22 June 2020.
[6] Section 63 of the Trans-Tasman Proceedings Act 2010 provides that a registered Australian judgment has the same force and effect, and may give rise to the same proceedings for enforcement, as if it were a judgment given by the New Zealand Court in which it is registered.
[7] The Order was served on the respondent at her address in Northland on 23 June 2020. The applicants allege that the respondent has breached the Order by posting at least three further videos in quick succession — on 24 August 2020, 30 August 2020 and 1 September 2020. These are said to be of the same purport or effect as the defamatory publications, the subject of the defamation proceedings in Australia.
The law
[8] The Contempt of Court Act 2019 (the Act) came into effect on 26 August 2020, and replaces the common law on contempt of court in New Zealand. However, the common law criteria for the contempt of disobeying court orders have been incorporated in the Act.1
[9]The principle purposes of the Act are to:2
(a)promote and facilitate the administration of justice and uphold the rule of law; and
(b)maintain and enhance public confidence in the judicial system; and
(c)reform the law of contempt.
[10] In accordance with those purposes, the Act enables courts to make certain orders and impose certain sanctions so that orders made by the courts are enforceable.
1 Contempt of Court Act 2019, s 16(3).
2 Section 3(1).
The Act accordingly contains enforcement provisions for situations where there has been a clear order by the Court, and that order has been breached.
[11] This application is brought under s 16(1)(a) of the Act, which applies to “any interim or final order, decision, decree, direction or judgment of a court (a court order) to do or abstain from doing something”. It enables a court to enforce court orders against those who are bound by such orders, upon application by the party who sought the order being enforced.
[12] A court may only proceed to enforce a court order under s 16 if certain criteria are satisfied, namely:3
(a)Other methods of enforcing the court order have been considered and are inappropriate or have been tried unsuccessfully; and
(b)If so satisfied, the Court must make a finding as to whether it is proved beyond reasonable doubt that:
(i)the court order being enforced has been made in clear and unambiguous terms and is clearly binding on the person; and
(ii)the person had knowledge or proper notice of the terms of the court order or undertaking being enforced; and
(iii)the person has, without reasonable excuse, knowingly failed to comply with the court order being enforced.
[13] If these criteria are all satisfied beyond reasonable doubt, the Court may do any of the following:4
(a)Issue a warrant committing the person to a term of imprisonment not exceeding six months;
3 Section 16(3).
4 Section 16(4).
(b)Impose a fine, in the case of an individual, not exceeding $25,000;
(c)Order the individual to do community work, not exceeding 200 hours, as the Court sees fit; or
(d)Make a sequestration order in accordance with the rules of the Court.
[14] The Act also provides that any enforcement action under s 16 does not operate to extinguish or affect the liability of the person to comply with a court order.5
Breach of order
[15] The order made by the Federal Court of Australia on 18 June 2020 was as follows:
OTHER MATTERS:
In these orders:
a.the respondent’s Facebook account is accessible at the URL address ‘ align="left">b.the “First Post” is the post uploaded to the respondent’s Facebook account on or about 26 April 2020 at 6.21am.
c.the “First Video” is the video post uploaded to the respondent’s Facebook account on or about 26 April 2020 at 2.01pm.
d.the “Second Post” is the post uploaded to the respondent’s Facebook account on or about 27 April 2020 at 5.14am.
e.the “Second Video” is the video uploaded to the respondent’s Facebook account on or about 30 April 2020 at 6.13pm.
f.the “Third Post” is the post uploaded to the respondent’s Facebook account on or about 8 May 2020 at 5.42am.
g.the “Third Video” is the video uploaded to the respondent’s Facebook account on or about 8 May 2020 at 6.00am.
h.the “Fourth Video” is the video uploaded to the respondent’s Facebook account on or about 8 May 2020 at 7.44am.
5 Section 16(6).
THE COURT ORDERS THAT:
1.Pursuant to r 5.23(2)(d) of the Federal Court Rules 2011, judgment is given for the applicants against the respondent for damages to be assessed by the Court.
2.The respondent by herself or by her servants or agents, or howsoever, be permanently restrained from publishing or causing to be published in any form, or maintaining online for downloading, or uploading so as to make available for publication on-line:
a.The First Post;
b.The First Video;
c.The Second Post;
d.The Second Video;
e.The Third Post;
f.The Third Video;
g.The Fourth Video; and
h.any other matter to the same purport or effect as any of the above matters to the extent that such other matters identify the applicants, whether expressly or by implication.
3. …
[16] The applicants allege that three videos posted on 24 August 2020, 30 August 2020 and 1 September 2020 are in breach of the specific order numbered 2.h.
[17] Having reviewed the live video on 24 August 2020, I am satisfied that in the context of all previous publications and the 24 August post itself, the statement that “luckily most normal Australians know incest and paedophilia are wrong”, is an imputation that the first applicant supports acts of incest and paedophilia, which the Federal Court of Australia found to be defamatory, as being false and untrue.6
[18] Further, in the context of all previous publications and the 24 August post itself, the statement that there is a “network of filth” is an imputation that the first applicant is a member of a secretive paedophilia network, which the Federal Court of Australia found to be defamatory, as being false and untrue.
6 Specifically referred to by Gleeson J in Webster v Brewer [2020] FCA 1343 at [86].
[19] Further, in the context of all previous publications and the 24 August post itself, the reference to “paedophile protecting politicians who are the most filthy scum known to man in Australia” is an imputation that the first applicant protects paedophiles, which the Federal Court of Australia found to be defamatory, as being false and untrue.
[20] As to the video posted on 30 August 2020, which was a recording of a live broadcast made on the page of Raphael Fernandez, I am satisfied that in the context of all previous publications and the video on 30 August 2020 itself, that the statement “and that’s how they get the present politicians protecting the dirty past [the first applicant’s uncle trafficking boys to the judiciary]” is an imputation that the first applicant protects paedophiles, which the Federal Court of Australia found to be defamatory, as being false and untrue.
[21] Further, in the context of all previous publications and the 30 August 2020 video itself, the statement that “she’s got a little charity she runs down there targeting teen mums — Zoe’s something or other it’s called right” is an imputation that the first applicant has being operating the third applicant to access vulnerable children on behalf of a secret paedophilia network, which the Federal Court of Australia found to be defamatory, as being false and untrue.
[22] Finally, as to the live video on 1 September 2020, I am satisfied that in the context of all previous publications and the live broadcast on 1 September itself, the statement that “now, most normal Australians know that incest and paedophilia is wrong” is an imputation that the first applicant supports acts of incest and paedophilia, which the Federal Court of Australia found to be defamatory, as being false and untrue.
[23] Further, in the context of all previous publications and the live video on 1 September 2020 itself, the statement that “charities … like the one Anne’s got … are players to shield the network of filth” is an imputation that the third applicant is a cover for the supply of vulnerable teenage girls to a secretive paedophilia network, which the Federal Court of Australia found to be defamatory, as being false and untrue.
Analysis
[24] As noted above, the criteria under s 16(3) of the Act must be proved to the criminal standard of beyond reasonable doubt. I am satisfied that these criteria have been satisfied beyond reasonable doubt for the following reasons:
(a)The Order is clear and unambiguous in its terms. It provides that the respondent is permanently restrained from authoring or uploading to the Internet any further matters to the same purport or effect as any of the defamatory publications. Although the Order was made by the Federal Court of Australia, it was subsequently registered in the High Court of New Zealand at Whangarei on 22 June 2020. The registered Order together with a notice under s 62 of the Trans-Tasman Proceeding Act was then personally served on the respondent on 23 June 2020. The Order therefore has the same force and effect and may give rise to the same proceedings for enforcement as if it were a judgment given by the High Court of New Zealand.
(b)The respondent had knowledge and proper notice of the terms of the Order. A copy of the Order was personally served on her. In each of the videos, the respondent refers directly to the Order and the defamation proceedings, demonstrating an awareness of the terms of the Order and a clear intention not to comply with the Order. The respondent has also criticised and made a number of defamatory statements in relation to two Federal Court Judges involved in the defamation proceedings — Justice Wheelahan and Justice Gleeson.
(c)The respondent has knowingly failed to comply with the Order. After the Order was served on her, the respondent breached the terms of the Order on at least three occasions by publicising three videos on Facebook that were to the same purport or effect as the defamatory publications.
[25] The applicants made numerous attempts to take down the defamatory publications posted by the respondent on Facebook. They were eventually successful.
As noted by Gleeson J, the first four matters were removed by Facebook on or about 9 May 2020.7 The other matters complained of (that is, the Third Post, the Third Video and the Fourth Video) have been removed by Facebook, but precisely when is not clear on the evidence. I was also advised by counsel that Facebook has now deleted the respondent’s Facebook account altogether.
[26] The respondent was well aware of possible Facebook action. On 5 May 2020, she posted a notice from Facebook that her account was at risk of being disabled if she breached community standards again and made the comment that if Facebook shut her down, she would commence using another Internet platform, “MeWe”. In a later post the same day, she gave her “friends and followers” her “MeWe” link in case Facebook blocked her. She stated, “I will not be silenced … Parliamentary Paedophile Protecting Suppression Orders are Wrong!”
[27] Four days later, Facebook took down her first four posts or videos. The respondent was aware of Facebook’s actions. In her video on 24 August 2020, the respondent said, “So did he, the Facebook censors took them down — that’s just rude isn’t it Raff, that’s just rude”.
[28] I am of view that the nature of the defamation proceedings means that obtaining enforcement of the Order by other, additional methods is inappropriate in the circumstances. The respondent may simply continue to breach the Order by making further defamatory publications unless sufficiently dissuaded by contempt of court orders as sought in the present case. If contempt of court orders are not granted and there are accordingly no consequences for the respondent’s breach of the Order, this is likely to further incentivise her to continue to post the defamatory publications.
[29] If the respondent does not agree with the terms of the Order, the appropriate response was to challenge it, not to deliberately disobey it. However, as noted above, the respondent has taken no formal or informal steps to intervene or oppose the defamation proceedings or this application.
7 Webster v Brewer, above n 6, at [64].
Result
[30] The grounds for making an order under s 16(4) of the Contempt of Court Act 2019 are made out. Because Facebook has both removed the defamatory posts and deleted the respondent’s Facebook account altogether, counsel for the applicants submits that the committal of the respondent to a term of imprisonment is no longer necessary. They seek only a fine. In that regard, the respondent has benefited from the diligence of the applicants’ Australian lawyers, who made a detailed complaint to Facebook, which they followed up diligently.
[31] As to the extent of publication of the three videos on 24 August 2020, 30 August 2020 and 1 September 2020, there were apparently approximately 20,259 followers of the respondent’s Facebook account as at 3 September 2020. That is a significant number of followers for what the respondent termed the “Aussie Bush Telegraph”.
[32] The maximum fine available is $25,000. I am of the view that the blatant disregard of the Federal Court of Australia judgment and the respondent’s avowed intention to continue to make defamatory statements on whatever Internet platform she is able to access warrants a fine of $5,000 to be paid in its entirety to the applicants. I order accordingly.
[33] If the applicants wish to pursue costs, they are to file and serve a memorandum as to costs by 31 January 2021. The respondent is to respond by 14 February 2021 if she now wishes to engage in the process. I will make a decision on costs on the papers thereafter.
Woolford J
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