Supreme Court New South Wales Medium Neutral Citation: Tate v Duncan-Strelec [2013] NSWSC 1446 Hearing dates: 27 September 2013 Decision date: 27 September 2013 Jurisdiction: Equity Division Before: Ball J Decision: See paragraph 22 of judgment. Catchwords: DEFAMATION - whether interlocutory injunction should be granted restraining the publication of defamatory material CONTEMPT OF COURT - whether there is a serious question to be tried - whether the defendant is in contempt for breaching the implied undertaking, publishing material seeking a reprisal against the plaintiff and for scandalising the court - whether injunction should be granted requiring the defendant to cease publishing the offending material Cases Cited: Amanda Duncan-Strelec v Thomas Richard Tate [2010] NSWSC 872 Attorney-General v Butterworth [1963] 1 QB 696 Clarkson v The Mandarin Club (1998) 90 FCR 354 Y and Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377 Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 Category: Interlocutory applications Parties: Thomas Richard Tate (Plaintiff) Amanda Duncan-Strelec (Defendant) Representation: B McClintock SC / Ms G Rubagotti (Plaintiff) Hickey Lawyers (Plaintiff) No appearance (Defendant) File Number(s): 2013/242125 Publication restriction: Nil Ex TEMPORE Judgment 1The plaintiff in these proceedings is currently the Mayor of the City of the Gold Coast. He has known the defendant since about November 1999. In 2006, the defendant, her husband and a company of which they were directors commenced proceedings against the plaintiff, his wife and a company of which he was a director asserting various claims regarding the development of real estate in Lavington, New South Wales. 2The proceedings were heard by Nicholas J and were dismissed by his Honour in a judgment delivered on 6 August 2010 (Amanda Duncan-Strelec v Thomas Richard Tate [2010] NSWSC 872). Costs were ordered in the plaintiff's favour and on 16 December 2011 the plaintiff obtained judgment against the defendant and her co-plaintiffs in the sum of $305,513.10. On 23 April 2012 the company of which the defendant was a director was wound up in insolvency and on 7 June 2012 the defendant and her husband were made bankrupt. 3On 17 June 2013 the domain name www.tomtatescam.com was registered and since at least 4 July 2013 a website has been published at that domain name. There is a question of who has published the material at that website. It is apparent on the material before me, however, that the plaintiff has a strongly arguable case that the contents of the website have been published by the defendant. 4On 9 August 2013, the plaintiff commenced these proceedings by summons. The orders sought in that summons, broadly speaking, are of two types. First, the plaintiff seeks an order permanently restraining the defendant from publishing the material on the website and an order requiring the defendant to take steps to deregister the domain name. Those orders are sought on two bases. One is that the material contained or published on the website is defamatory of the plaintiff. The other is that the material involves the defendant committing a contempt of court. The second type of order sought in the summons is an order that the defendant be found guilty of contempt and be punished for that contempt. 5The matter was first listed for directions on 20 August 2013. There was no appearance by the defendant at that time and on 27 August 2013 the plaintiff filed a notice of motion seeking summary judgment. That notice of motion was made returnable on 3 September 2013. Again, there was no appearance by the defendant and on 4 September 2013 the plaintiff filed a notice of motion seeking default judgment. It is those motions that were listed before me today. 6There was no appearance again by the defendant today. However, my Associate received an email from the defendant at 9.20 am this morning in which the defendant said, among other things, the following: I am due to appear for a hearing on the above matter this morning at 10.30. I am not able to attend for a number of reasons, the primary one being lack of funds. I am a bankrupt, as Mr Tate is well aware as he is the person who succeeded in having me declared bankrupt. I reside in Albury, some 500 kilometres from Sydney and I do not have the funds to pay for travel and accommodation required for me to travel to Sydney to appear in Court for a matter I should not be involved in. I have repeatedly advised Mr Tate's solicitors that I am not the author of the Tom Tate web site, nor do I have any knowledge of where it emanates from, let alone control over it. I admit I have supplied the anonymous owners of the web site certain documents, as have many other contributors, none of whom Mr Tate appears to be pursuing in the same manner he is pursuing me. I believe Mr Tate is using his substantial assets to pursue me in an effort to silence what I believe is the basic democratic right of every Australian under our constitution, that of the freedom of speech. If the Court deems it necessary to take action against me to appease Mr Tate's substantial ego, then I have no choice but to abide by the Court's decision. However, I cannot afford representation due to my financial situation, and am still at a loss to understand how a bankrupt can be sued in the Civil Court when it must be apparent to all and sundry, that any financial recompense Mr Tate might be seeking cannot be met. 7At the hearing before me today, Mr McClintock SC, who appeared for the plaintiff, conceded that his client could not press for an order that the defendant be found guilty of contempt in the defendant's absence. He also accepted that it would not be appropriate for the court to grant summary judgment or judgment in default in relation to the plaintiff's claim insofar as it was based on an allegation of defamation in circumstances where that claim has not been pleaded. Mr McClintock also accepted that, in those circumstances, it would not be appropriate for the court to give final relief in the nature of an injunction in respect of the contempt that it is alleged the defendant has committed. Instead, Mr McClintock indicated that what he sought today was interlocutory relief in the nature of an injunction pending a final hearing of the matter. 8There can be no doubt about the relevant principles in this case. The plaintiff must satisfy me that there is a serious question to be tried that he is entitled to the final relief he seeks; and that the balance of convenience favours the granting of an injunction in the terms sought. 9The plaintiff puts his case for interlocutory relief in four ways. 10The first basis is that the website is highly defamatory of the plaintiff and the evidence strongly supports the contention that the material on the website has been published by the defendant. I do not think it is necessary in this judgment to set out the material on which the plaintiff relies for the allegation that there is a serious question to be tried that the material on the website is defamatory of the plaintiff. It is sufficient for me to say that, having looked at that material, I am satisfied that there is a serious question to be tried and, moreover, that there is a serious question to be tried that this case falls into that class of case where the court is prepared to grant a permanent injunction to restrain the publication of defamatory material. 11As to the question whether the defendant is the person who has published the material, in my opinion, there is extensive evidence from which it might ultimately be inferred that she is the publisher. That evidence includes repeated references in correspondence sent by the defendant which suggest very strongly that she has control of the contents of the website. It can also be inferred from the nature of the material, and from what has been posted and when it was posted, that the contents of the website are determined by the defendant. For example, shortly after the defendant is served with any court document by the plaintiff that document appears on the website. 12The second ground on which the plaintiff says there is a serious question to be tried in relation to the relief he seeks is that the defendant is in contempt of court by publishing on the website documents in breach of the implied undertaking. Those documents fall into two classes. First, during the course of the proceedings before Nicholas J, the defendant requested that the plaintiff provide to the defendant a copy of a forestry bond that was the subject of an order made by the court. It is at least arguable that the production of the bond, in those circumstances, is analogous to discovery. That forestry bond did not form part of the evidence before Nicholas J. Nonetheless, it appears that the defendant has retained a copy of that bond and has published it on the website. Second, the defendant published on the website affidavits that the plaintiff had filed in these proceedings before those affidavits were read. 13On the basis of that evidence, it is strongly arguable that the defendant has committed a contempt of court and it seems apparent, and it is not altogether surprising, that the defendant simply does not understand her obligations in relation to court documents that are provided to her and in relation to other documents she has obtained in connection with the court proceedings. 14The third basis on which the plaintiff seeks interlocutory relief is that the defendant, by publishing the material on the website, has committed a contempt of court because she is publishing the material to exact a reprisal or revenge against the plaintiff for succeeding in the proceedings before Nicholas J. In support of that contention, the plaintiff points not only to the material contained on the website, which he submits is obviously designed to expose him to hatred, ridicule and contempt, but also to the fact that the defendant offered to cease publication of the website if the plaintiff did various things, including paying money to third parties. 15I accept that exacting a reprisal because of a party's conduct in court proceedings, or even because of their success in court proceedings, may amount to a contempt: see Attorney-General v Butterworth [1963] 1 QB 696 at 719; Clarkson v The Mandarin Club (1998) 90 FCR 354 at 362; Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 at [38]. Having regard to the content of the website, it seems to me that there is a serious question to be tried whether the defendant has committed a contempt of that sort in this case. 16The fourth basis on which the plaintiff seeks an interlocutory injunction is that some of the material scandalises the court or brings the administration of justice into disrepute. The relevant material is material that describes what happened during the hearing before Nicholas J. The plaintiff, in particular, points to material on the website which suggests that Nicholas J refused to give the plaintiff an adjournment even though her son had been seriously injured when on reading the transcript of the hearing it is clear that his Honour asked the defendant whether she was content for the case to continue and the defendant replied that she would prefer that it did. 17Of course the mere fact that the defendant is critical of the conclusions that Nicholas J reached does not mean that she is guilty of a contempt. Ultimately, it will be necessary to examine the material carefully to determine what, if any of it, amounts to a contempt in this sense. Nonetheless, I am satisfied that there is a serious question to be tried that at least some of the material published by the defendant amounts to a contempt because it scandalises the court or brings the administration of justice into disrepute. 18The question remains whether an interlocutory injunction should be granted, and, if so its form. 19Freedom of speech is obviously a very important value in our community and it should not be lightly interfered with. However in this case, in my opinion, the plaintiff on the evidence before me has a strong case that the defendant has exceeded her rights to freedom of speech. The plaintiff is a well known public figure in the Gold Coast community. The evidence suggests that the website had approximately 30,000 hits in its first two weeks of operation and is capable of doing irreparable damage to the plaintiff's reputation. Moreover, as recent events have demonstrated, it seems clear that the defendant will continue to make material available on the website irrespective of her legal obligations unless restrained. There can be no doubt that the court has power to issue an injunction including an interlocutory injunction to restrain a party from committing a contempt of court: Y and Z v W [2007] NSWCA 329; (2007) 70 NSWLR 377; Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 at [14]. 20In those circumstances I think this is an appropriate matter in which to grant an interlocutory injunction. That leaves the form of the interlocutory injunction that should be granted. The defendant is entitled to make public comments about the court case before Nicholas J, and I do not think that an injunction should be framed which prevents her from saying what she is legitimately entitled to say. In addition, the injunction needs to be clear so that the defendant knows precisely what it is the injunction requires her to do. One other matter which is relevant to the form of the injunction is that, as the material is currently presented on the website, it is very difficult to separate out the material concerning which there is an arguable or strongly arguable case that it is defamatory or in contempt. The only material that falls clearly into that category is the forestry bond. That bond was not in evidence in the proceedings before Nicholas J. There is a serious question to be tried that it is subject to the implied undertaking. 21Having regard to those matters, it seems to me appropriate to grant a mandatory injunction requiring the defendant to cease publishing the material currently on the website on the basis that the plaintiff give the usual undertakings as to damages and also to grant a mandatory interlocutory injunction requiring the plaintiff to cease to publish the forestry bond. That will leave the defendant free to publish other material on the website if she chooses, although in saying that I should not be taken as saying that the defendant should be free to publish other material that may be defamatory of the plaintiff or in contempt of court. What steps the defendant takes in that regard will be very relevant to the final relief that the court might ultimately grant in this matter. 22I make the following orders: 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 http://www.tomtatescam.com 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 directs 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: xxx@xxx (5)The matter be stood over for further directions at 9.00 am on 8 October 2013. (6)The parties have liberty to apply on 3 days' notice. (7)Costs be reserved. (8)These orders may be taken out forthwith. ********** Amendments 03 October 2013 - anonymisation Amended paragraphs: 22(4) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2013