Supreme Court New South Wales Medium Neutral Citation: Al Muderis v Duncan (No 4) [2018] NSWSC 925 Hearing dates: 09 November 2017 Date of orders: 14 June 2018 Decision date: 14 June 2018 Jurisdiction: Common Law Before: Rothman J Decision: (1) The second defendant/contemnor is guilty of criminal and civil contempt for counts 1, 2, 3, 6, 7, 8 and 9 of the Statement of Charge filed herein; (2) The second defendant/contemnor is guilty of civil contempt in relation to counts 4, 5, 10 and 11 of the Statement of Charge filed herein; (3) The plaintiff/prosecutor shall bring in a minute of order in relation to permanent injunctions, the necessary changes being made, in the terms of the interlocutory injunctions that have already issued; (4) The Court will hear the parties on appropriate penalty; (5) The second defendant/contemnor shall pay the plaintiff/prosecutor's costs of and incidental to the proceedings on an indemnity basis; (6) Submissions on penalty shall be in writing: (a) The plaintiff/prosecutor shall file and serve (in accordance with the orders for substituted service) any further submissions on penalty within 21 days of this judgment; (b) The second defendant/contemnor shall file and serve written submissions in relation to the penalty within 21 days of the date of any email sent to the second defendant/contemnor by the plaintiff/prosecutor containing the further written submissions on penalty, if any; (c) If written submissions are filed by the second defendant/contemnor, the matter will be listed for hearing on a date to be fixed. Catchwords: CONTEMPT – finding of guilt – charges of non-compliance with a breach of Court orders – deliberate defiance of Court orders freezing assets and enjoining second defendant/contemnor from maintaining or publishing certain defamatory imputations – discussion of civil and criminal contempt – four charges treated as civil contempt – seven charges held to be both civil and criminal contempt – finding of guilt made – penalty to be subject to further submissions COSTS – indemnity costs ordered Legislation Cited: Crimes (Sentencing Procedure) Act 1919 (NSW), ss 3A, 21A Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Al Muderis v Duncan (No 3) [2017] NSWSC 726 AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21; Carr v Baker (1936) 36 SR (NSW) 301 Commissioner for Fair Trading v Rixon (No 2) [2014] NSWSC 431 Fabre v Arenales (1992) 27 NSWLR 437 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v Southerland Shire Council [1979] 2 NSWLR 206 NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Paccar Financial Pty Limited v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622 Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 Seymour v Migration Agents Registration Authority (2006) 215 FCR 168; [2006] FCA 965 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Veen v R (No 2)(1988) 164 CLR 465; [1988] HCA 14 Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 Category: Consequential orders (other than Costs) Parties: Dr Munjed Al Muderis (Plaintiff) Rodney Duncan (First Defendant) Gerardo Mazzella (Second defendant) Instra Corporation Pty Ltd (Third Defendant) Representation: Counsel: M Richardson / M Rabsch (Plaintiff) No appearance (Defendants) Solicitors: Newhouse & Arnold Lawyers (Plaintiff) No appearance (Defendants) File Number(s): 2016/276179 Judgment 1. HIS HONOUR: By motion dated 27 June 2017, the plaintiff, Munjed Al Muderis, prosecutes the second defendant in the proceedings, Gerardo Mazzella (also known as Gerard Duncan), for contempt. Eleven such charges are alleged. Proceedings against the first defendant have been discontinued and a notice filed in that regard. 2. Under the provisions of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), the plaintiff in a contempt charge is referred to as the "prosecutor" and the defendant as the "contemnor", even though the charge has not yet been proved. The alternative descriptors are used interchangeably in these reasons. 3. The contempt arises out of what is said to be a contumacious breach of orders made in the defamation proceedings between the plaintiff/prosecutor and the second defendant/contemnor. The plaintiff/prosecutor relies upon three affidavits of Nicholas Birbas, sworn 26 June 2017, 16 August 2017 and 7 November 2017. The Statement of Charge and the first Birbas Affidavit was served on the second defendant/contemnor in August 2017 in the manner detailed at [3] of the second Birbas Affidavit. 4. On 14 September 2017, the contempt proceedings were listed for directions and a hearing was fixed commencing on 9 November 2017. Further procedural directions issued. 5. The hearing date and the directions that issued on 14 September 2017 were served on the second defendant/contemnor in the manner detailed at [6] of the second Birbas Affidavit. 6. The third Birbas Affidavit annexes orders issued by the Court (as presently constituted) on 19 June 2017 and details the service of those orders. The second defendant/contemnor has made no reply or response to the motion, the Statement of Charge or the affidavits raising contempt. 7. Despite all reasonable efforts, the whereabouts of the second defendant/contemnor is unknown. For that reason, the orders for service were made as detailed in the foregoing affidavits. 8. On 10 October 2017, the first defendant filed an affidavit which recorded that, to his knowledge, the second defendant/contemnor was in Cambodia in June 2017 and overseas for the whole of the period from 19 June to 12 July 2017: see affidavit of Rodney Duncan, 10 October 2017, at [25] and [55]-[56]. 9. On 7 June 2017, the Court (as presently constituted) issued orders the effect of which was judgment for the plaintiff/prosecutor in relation to the substantive proceedings and ordering that damages be paid. The evidence before the Court on this occasion disclosed that damages had not been paid. 10. Further, the orders of the Court included directions relating to the form of any injunctive relief and the desirability of obtaining said injunctive relief against one or other of the defendants. 11. On 9 November 2017, further orders were made, the effect of which was the defendants were required to suspend the domain name, remove the website and transfer the domain name to the plaintiff/prosecutor. The orders were in the following terms: "[1] The domain name www.drmunjedalmuderis.com be suspended. [2] The website associated with the name www.drmunjedalmuderis.com be removed from the internet. [3] The domain name www.drmunjedalmuderis.com be transferred to the Plaintiff. [4] In accordance with the substituted service order of 7 November 2017, the plaintiff shall serve on the second defendant a copy of the transcript from today's hearing (09/11/17) and these orders by 5pm, 10 November 2017. [5] The second defendant has liberty to file and serve a response to the written and oral submission on behalf of the plaintiff. Such service and filing may be effected by email to the solicitors for the plaintiff and the Chambers of Justice Rothman at chambers.rothmanj@courts.nsw.gov.au. [6] Any such written submissions to be filed by 5pm, 24 November 2017. [7] Any application for an oral hearing sought by the second defendant seeking to be heard or to adduce evidence should be made by 5pm, 17 November 2017." 1. No written submissions were filed by the defendant by 24 November 2017 or at all. Nor was any application made seeking to be heard or to adduce evidence. 2. Prior to 9 November 2017, orders had been made on a number of bases. On 19 June 2017, orders were made on an interlocutory basis, which are still in force. The 19 June 2017 orders, on its face, advised each of the defendants that if either of them were to: "Refuse or neglect to do any act within the time specified in [these orders] for the doing of the act; or disobey the orders … by doing an act which the order requires [either of them] to abstain from doing, [they] will be liable to imprisonment, sequestration of property or other punishment". It also advised that any other person who knows of the order and does anything which helps or permits the defendants to breach those orders or any of the terms thereof may be similarly punished. 1. The orders themselves where in the following terms: "[1] Judgment for the plaintiff against each of the first and second defendants. [2] Within seven days of the date of this order, the defendants and each of them take all steps to remove from the Internet and/or any social media platform any website, article, advertisement, or document referring to or identifying the plaintiff therein which they, or either of them, have composed, designed, posted, published or caused to be published including, but not limited to: (a) material on Facebook, YouTube, Pinterest, Daily Motion, Google, Google AdWords, Vimeo, Videobash, Internet Archive, RU tube, Instagram, Twitter, Blogspot and Tune.pk; and (b) domain names and websites registered with Instra Corporation, GoDaddy.com LLC, TLD Registrar Solutions Ltd, ICANN Registrar and Internet.bs. [3] On an interlocutory basis, the defendants and each of them be restrained until 4pm on 4 August 2017 or until further order from distributing or publishing (or repeating or continuing to publish), in hard copy or in soft copy, on the Internet or through social media (including, but not limited to the websites, social media platforms and Internet content and domain name host providers referred to at order [2] above), any website, article, advertisement, document, description, (audio or video) recording, photograph, depiction, image or picture referring to the plaintiff or identifying the plaintiff. [4] On an interlocutory basis, the defendants and each of them be restrained until 4pm on 4 August 2017 or until further order from publishing on the Internet, on social media, or in hard copy any allegation or imputation of or about the plaintiff in or to the following effect: (a) The plaintiff's gross negligence as a surgeon has destroyed people's lives; (b) The plaintiff as a surgeon be found guilty of negligence by the NSW Medical Board; (c) The plaintiff deserved to be criminally charged; (d) The plaintiff mutilated Gerard's (a reference to the second defendant) reproductive nerves; (e) The plaintiff falsely promises to cure Gerard of his pain if he paid $8000 for a one-hour procedure; (f) The plaintiff negligence in his operative and post-operative treatment of Gerard led to a loss of sensation in his penis, thereby destroying his sex life and causing great depression; (g) The plaintiff is an unethical surgeon motivated only be arrogance and pride; (h) The plaintiff is a disgraceful surgeon with a reckless disregard for human life; (i) The plaintiff as a surgeon engages in unethical human experimentation or the purposes of obtaining financial reward and prestige; (j) The plaintiff in his practice as a surgeon has inflicted extreme destruction on multiple patients; (k) The plaintiffs conduct as a surgeon is so disgraceful that it embarrasses all decent and committed healthcare workers; (l) The plaintiff as a surgeon is a butcher and a bully; (m) The plaintiff creates false documents in the course of his practice as a surgeon in order to cover up his mistakes; (n) The plaintiff cruelly labels his patients as having psychological problems in an effort to cover up his own mistakes; (o) The plaintiff acted negligently by undertaking two unnecessary operations on a patient's right hip; (p) The plaintiff gross negligence during an operation on a knee replacement patient on 26 June 2013 ruined that patient's life; (q) The plaintiff performance as a surgeon is so poor that his colleagues regarded him as an idiot; (r) The plaintiff as a surgeon butchered a patient undergoing a knee replacement in September 2015; and (s) The plaintiff acted with gross negligence by failing to diagnose a post-operative infection following a knee replacement, leading to the patient suffering a permanently ruined knee. (t) The plaintiff's gross negligence ruined Gerard's life and destroys peoples' lives; (u) The plaintiff is a low and disgusting monster who mutilates his patients' genitalia; (v) The plaintiff behaves arrogantly and dishonest when treating vulnerable patients; (w) The plaintiff repeatedly lied to Gerard; (x) The plaintiff's gross negligence had devastating consequences for Gerard, including ruining his sex life and leaving him without a penis; (y) The plaintiff is an unscrupulous surgeon who does not take responsibility for the devastating consequences of his actions; and (z) The plaintiff is unfit to practice medicine. [5] On an interlocutory basis, the defendants and each of them be restrained until 4pm on 4 August 2017 or until further order from applying for or utilising any website, domain name or social media address or link that contains the name of the plaintiff therein or any address or link that is similar to the name of the plaintiff or any address that would identify the plaintiff. [6] On an interlocutory basis, the defendants and each of them be restrained until 4pm on 4 August 2017 or until further order, and are hereby restrained, from inciting, encouraging or otherwise suggesting to any person or organisation that such person or organisation engage in conduct from which the first or second defendant is, by these orders, restrained." 1. The order of 19 June 2017 also awarded damages. Statement of Charge – Count 1 1. On 14 September 2016, the Court (McCallum J) issued injunctions which, by orders [2] and [3] thereof, prohibited publication of the matters complained of in the Statement of Claim then before the Court. It also prohibited publication being versions of a website appearing at the address of www.almuderis.co in any form. 2. Notwithstanding the orders issued by the Court (McCallum J) on 14 September 2016, a website appeared at the address of www.almuderis.org.au on 17 September 2016, which, in the Statement of Charge for Contempt, is described as the "second Al Muderis website" and is the first count on the charge. 3. The website has been produced for the Court and is in evidence. It is, in substance and otherwise, the same as the websites that were the subject of complaint before the Court (McCallum J) on 14 September 2016 and that were the subject of the injunction. The similarities and comparisons are the subject of submissions by the plaintiff/prosecutor and the comparison is in the following terms: "[8](a) The 'Dr Al Muderis' section may be compared at Birbas 1 p. 111-117 (14 September version) and pp 201-203 (17 September, second Al Muderis website). The only difference is that the second Al Muderis website of 17 September deletes the four comments contained in the 14 September version and adds the link to the Wu Medical Centre and the Second defendant's recent treatment (see p. 203); (b) The 'More Victims' section may be compared at Birbas 1 p. 118-127 (14 September) version and Birbas 1 p. 206-211 (17 September, second AL Muderis website). The only difference is the second Al Muderis website of 17 September adds in another (seriously defamatory) case study (No 5 at Birbas 1 p. 209) and drops out the two comments contained in the first version; (c) The 'Un Accountability of Surgeon Dr Al Muderis for his Medical Negligence' may be compared at Birbas 1 p. 132-134 (14 September) and Birbas 1 p. 204-205 (17 September, second AL Muderis website). There does not appear to be any changes; (d) The 'Video that Dr Al Muderis has blocked on Australian YouTube' appears in the 17 September, second AL Muderis website at Birbas 1 p. 212. It does not appear in the 14 September version but had appeared in the earlier 31 August 2016 version of the website at www.almuderis.co (which was also a cause of action in the draft statement of claim) at Birbas 1 p. 86; (e) The 'Background' at Birbas 1 p. 128-13' [sic] (14 September version) drops out of the 17 September, second Al Muderis website; and (f) The 17 September, second Al Muderis website adds the 'Victim Update Gerard's Road to Recovery' at Birbas 1 p. 214-217." 1. It is clear from the content of the second Al Muderis website that the website conveys substantially, if not identically, the same defamatory imputations as the previous websites that were the subject of the injunctive relief, which the second defendant/contemnor was enjoined from publishing. 2. The evidence before the Court discloses that the second defendant/contemnor published the second Al Muderis website on or about 17 September 2016. This is an irrefragable inference derived from the following evidence: 1. The Registrant Contact Email (himsamnang3134@outlook.com) was the same as the Administrative Contact Email for the website published on 14 September 2016 and that which was before the Court (McCallum J). It is also the email address to which the second Al Muderis website exhorted readers to send their complaints; 2. The second Al Muderis website appears on 17 September 2016, a matter of 2 to 3 days after the previous website was removed as a result of the injunctions that issued from the Court; 3. The website content is in identical terms to all that had been published by the second defendant/contemnor on earlier occasions. Statement of Charge - Count 2 1. The second count on the charge also involves a breach of the injunctions issued by the Court (McCallum J) on 14 September 2016, to which reference has already been made. The second count concerns the publication of a website on or about 8 October 2016 appearing at the address www.almuderis.me and available on the Internet. The plaintiff/prosecutor defines this publication as the "third Al Muderis website" and the Court will similarly refer to it. 2. The third Al Muderis website is substantially in the terms, and substantially contains the content, of the attacks made and the imputations that arose from the publications that were enjoined as a consequence of the orders issued by the Court (McCallum J) on 14 September 2016. There are differences between the content of the website that was before the Court on 14 September 2016 and the third Al Muderis website, which are summarised accurately by the plaintiff/prosecutor in its written submissions in the following terms: "[12](a) The 'Dr AL Muderis' page on the third Al Muderis website at Birbas 1 p. 219 begins with a new paragraph containing words including the following '…We allege we are is victims. Any other please contacts us at gerard_duncan@hotmail.com …..The group "we are the victims of Dr Al Muderis" has many members and is international. It's sole purpose is to find other people who have had bad experiences with this doctor. It does not aim to defame.'; (b) The section 'Un Accountability of Surgeon Dr Al Muderis for his Medical Negligence' on the third Al Muderis website at Birbas 1 p. 221 contains a few deletions from previous versions; (c) The 'More Victims' section in the 17 September, second AL Muderis website at Birbas 1 p. 206 is replaced in the third AL Muderis website at Birbas 1. p. 223 with only the account of the first 'victim'; (d) The third AL Muderis website at Birbas 1. p. 225 includes a new section headed 'Fake Doctor'. This new material includes statements that the Plaintiff is a 'fake doctor', 'liar' and 'butcher'. This page also includes the sign off 'Gerardo Mazzella' under the heading 'Breaking News Regarding Dr Al Muderis'; (e) The third AL Muderis website at pages 232-234 includes new material such as communications between the Second defendant and journalists at Channel Nine and the Daily Mail as well as the statement that 'a lot of doctors out there know that he is false … take care Gerard he could hire a hitman so please be careful.'" 1. The evidence before the Court (as presently constituted) requires the drawing of the inference, beyond reasonable doubt, that the second defendant/contemnor published the third Al Muderis website. That inference is drawn from the following material: 1. The content of the website refers repeatedly to the second defendant/contemnor, disclosing that he has assembled and published the material. It refers to the email address of Gerard Duncan; 2. In July 2017, the second defendant/contemnor's solicitor provided the same email address, Gerard_Duncan@hotmail.com, as the address for emails for the second defendant/contemnor; 3. There are references to Mr Mazzella and to Gerardo Mazzella (by virtue of the sign off); there are messages to and from Gerard; and communications between Gerard and persons who are purportedly intended to be identified as journalists; 4. There is also the material and evidence assembled to prove that the second defendant/contemnor published the almost identical earlier websites and to which reference has been made earlier. The third Al Muderis website was published on 8 October 2016, which is approximately the time that the preceding website, the second Al Muderis website, had been removed; 5. Lastly, the second defendant/contemnor in a video posted to YouTube on 15 February 2017 refers, directly, to the website and the number of emails the second defendant/contemnor had received from what he described as "other victims" on the third Al Muderis website and then, on the video, makes an admission to the effect that he started the website at the address to which the second count refers, being the third Al Muderis website. Statement of Charge – Count 3 1. The third count on the charge for contempt again involves a breach of the injunctions issued by the Court (McCallum J) on 14 September 2016. The breach is said to have occurred on or about 27 March 2017 and was occasioned by the publication of a website at the address www.dralmuderis.com, contrary to the terms of the injunction. The plaintiff/prosecutor refers to the aforesaid website as the "fourth Al Muderis website". Its content is substantially the same as the websites that were before the Court on 14 September 2016, but contains additional material. The additional material may well give rise to further defamatory imputations, but is currently irrelevant. 2. The evidence before the Court (as presently constituted) establishes that the second defendant/contemnor published the fourth Al Muderis website. This arises as a necessary inference from the material otherwise before the Court. That material includes that: 1. the fourth Al Muderis website invited persons to contact the second defendant/contemnor at the email address Gerard_Duncan@hotmail.com; 2. on 19 April 2017, the plaintiff/prosecutor's solicitor contacted the second defendant/contemnor at the foregoing email address and received a response; 3. in July 2017, the second defendant/contemnor's solicitor provided the email address Gerard_Duncan@hotmail.com as the email address for the purposes of the Court proceedings and for the purpose of contacting the second defendant/contemnor; 4. the fourth Al Muderis website was registered on 27 March 2017 and was first published on or about that time, which accorded with the time that the preceding website, the third Al Muderis website, was removed; 5. the Court is satisfied that the second defendant/contemnor published the earlier websites that were the subject of the orders on 14 September 2016 and the fourth Al Muderis website is in almost identical terms. Statement of Charge – Count 4 and Count 5 1. The fourth and fifth counts on the Statement of Charge are related and will be dealt with together. They relate to orders issued by the Court (Kunc J) on 15 June 2017, being freezing orders restraining the defendants and each of them from dealing with their assets. These orders were made as a consequence of the award of damages by the Court (as presently constituted) on 7 June 2017. 2. Once more, the orders of the Court provided for substituted service of the motion, supporting affidavit and orders relating to the freezing orders. Service was effected in accordance with that substituted service order. Order [9] of the orders issued by the Court (Kunc J) on 15 June 2017 required the second defendant/contemnor to surrender his passport by 19 June 2017 and order [6] of the orders required compliance with the freezing orders that were annexed to the orders. Clause 8 of that annexure, commenced with the explicit warning that non-compliance may result in imprisonment and required the defendants to provide an affidavit including information as to their financial position. 3. By an affidavit sworn 10 October 2017, the first defendant refers to a conversation with the second defendant/contemnor, while the second defendant/contemnor was in Cambodia. The first defendant is the second defendant/contemnor's brother. The terms of that conversation and the affidavit make clear that the second defendant/contemnor had received the 15 June 2017 orders and the second defendant/contemnor said words to the following effect: "Okay, I will try to arrange lawyers for us. There are orders being made which could get you into serious trouble." 1. The first defendant, who, as stated, is the second defendant/contemnor's brother, testifies to the fact that the second defendant/contemnor was aware of the existence of these orders. 2. The fourth and fifth counts, earlier referred to as related, each involve a breach of the 15 June 2017 orders: 1. The second defendant/contemnor has never provided the affidavit containing the financial information as required by the Court. Nor has any information been forthcoming from the second defendant/contemnor detailing that information, whether sworn or otherwise; 2. The second defendant/contemnor has not surrendered his passport. Each such action, not performed by the second defendant/contemnor, was, as earlier stated, required by the orders of the Court (Kunc J) on 15 June 2017. 1. As previously stated, on 19 June 2017, the Court (as presently constituted) issued further orders that: awarded damages; granted injunctive relief; and issued freezing orders. Those orders have been recited above. 2. The 19 June 2017 orders, inter alia, required the second defendant/contemnor to remove certain described items from the Internet and social media platforms; restrained the second defendant/contemnor from publishing material on the Internet that identified or referred to the plaintiff/prosecutor; restrained the second defendant/contemnor from publishing the same or similar imputations, at least until 4 August 2017 or further order of the Court; restrained the second defendant/contemnor from applying for or utilising any website, domain name or social media address or link containing the plaintiff/prosecutor's name until 4 August 2017 or further order of the Court; and by order [15], provided for substituted service on the second defendant/contemnor's solicitors. Statement of Charge – Count 6 1. The sixth count involves a breach of one or more of the orders made on 19 June 2017 and relates to the republication of the fourth Al Muderis website. The fourth Al Muderis website was not accessible online as at 9 June 2017. At some time between 19 June 2017 and before 21 July 2017, the website became accessible and remained so at least until August 2017. 2. Further, the subsequent website repeats the same allegations and includes the account of each of the same six persons as were versions of the website before the Court (McCallum J) on 14 September 2016. The subsequent website also includes acknowledgement that the second defendant/contemnor understood orders had been made by the Court (as presently constituted) and comments that the second defendant/contemnor "will not be silenced by money and power". 3. This latest version of the website remains online. Plainly, it was published by the second defendant/contemnor. For that finding, beyond reasonable doubt, the Court (as presently constituted) relies upon the following material: 1. First, it is included on the "Dr Almuderis" page; 2. There is an allegation that the persons are "his victims" and the contact email address is, once more, Gerard_Duncan@hotmail.com; 3. The response (which is a response to an article in a mass circulation daily newspaper concerning the orders made by the Court (as presently constituted)) is couched in the third person, but it would defy common sense for any reading of it to be a reading of it as a document composed otherwise than by the second defendant/contemnor; 4. All of the evidence otherwise relied upon to conclude that the fourth Al Muderis website was published by the second defendant/contemnor. Statement of Charge – Count 7 1. The seventh count on the Statement of Charge also involves a breach of the orders made by the Court on 19 June 2017. It involves the continued availability of the Facebook page "Dr Al Muderis - Surgeon or Butcher", which was first posted in 2015; was available on 14 September 2016; and remained on the Internet until at least 19 June 2017. The Facebook page continued to be available, thereby breaching order [2] of the orders of 19 June 2017 and, at least for the period 19 June through to 4 August 2017, orders [3], [4] and [5] of the orders of 19 June 2017. Statement of Charge – Count 8 1. The eighth count involves, once more, a breach of the orders made on 19 June 2017. It relates to a YouTube video entitled "Dr Almuderis the Butcher", which video was published "May 13, 2015" (according to its text) and was the subject of the cause of action in defamation for which a liability judgment was issued by McCallum J and damages were awarded (and restraining orders made) by the Court. 2. The video involves a depiction of the second defendant/contemnor who, in that video, repeats and/or makes the imputations which were alleged in the Statement of Claim in the substantive proceeding. 3. As at 4 May 2017, 16 YouTube videos had been posted by the second defendant/contemnor each of which appear to date from February 2017. Each of them include the second defendant/contemnor speaking at the camera in a way similar to the original video in style and content. However, there are additional defamatory imputations and fresh or seemingly fresh material. Some of those YouTube videos include a link back to the original video. A number referred, in their text, to having been uploaded by Gerard Duncan or Gerard Mazzella (as earlier stated, the second defendant/contemnor is known by each name). Four of those videos remained accessible online as at 25 July 2017 and, for the reasons explained in relation to the seventh count, breach the orders issued by the Court on 19 June 2017. 4. Further, on 6 July 2017, the second defendant/contemnor sent an email to the solicitor acting for the plaintiff/prosecutor attaching a further video and threatened that there was more to come. The video sent to the plaintiff/prosecutor's solicitor, together with another video labelling the plaintiff/prosecutor as a threat to national security and connected to Man Monis (a person who, by that time, was notoriously connected with extremist terrorism), was subsequently uploaded to YouTube. 5. For the foregoing reasons, the second defendant/contemnor has, beyond reasonable doubt, failed to remove the defamatory material to which the Court referred in its orders of 19 June 2017 and has repeatedly published it. Statement of Charge – Count 9 1. The ninth count alleges further breaches in relation to the orders that issued on 19 June 2017. By 27 April 2017, the second defendant/contemnor had posted two videos on the RU Tube website. One of those was "Dr Al Muderis the Butcher", which, as earlier stated, was also uploaded to YouTube. Those videos, including text that was plainly taken from various websites (which are otherwise the subject of complaint and were the subject of orders made by the Court on various dates), remained accessible until at least 16 August 2017, on the evidence before the Court. 2. It is beyond doubt that the second defendant/contemnor was the sole contributor, the producer of the videos (and the accompanying text) and is the publisher of the two videos. This material had not been removed at the date of the hearing and certainly not since 19 June 2017. Statement of Charge – Count 10 and Count 11 1. The plaintiff/prosecutor claims a tenth and eleventh count which involve, respectively, a breach of orders [11] and [12] of the orders issued by the Court (as presently constituted) on 19 June 2017. Again these relate to the provision of an affidavit as to financial information and the surrendering of the passport. The orders issued on 19 June 2017 imposed a further condition relating to the provision of such an affidavit and the surrender of the second defendant/contemnor's passport. It set a new and later time as a consequence of the failure of the second defendant/contemnor to adhere to the requirements earlier made by the Court (Kunc J) on 15 June 2017. Punishment for Contempt 1. As a superior court of record with inherent jurisdiction, the Supreme Court of New South Wales has power and jurisdiction to punish for contempt. Contempt is a common law offence, for which all of the available penalties for any criminal offence are available. The Court, in these reasons, does not deal with punishment in the face of the Court. 2. The UCPR Pt 55 r 13, permits the Court to impose a penalty for contempt on an individual, including a sentence of imprisonment or fine or both. Moreover, the Court is capable of imposing punishment on terms and may suspend, or part suspend, a sentence of imprisonment and may, either in addition to, or instead of, such punishment, impose conditions for good behaviour and the like. 3. Traditionally, contempt has been divided into two types: civil and criminal. Criminal contempt is conduct that obstructs the administration of justice. Civil contempt is, essentially, a breach of an order or undertaking that does not involve an obstruction of the administration of justice. Where the breach of an order of or undertaking to the court is deliberate (either a deliberate defiance of the order or undertaking or a contumacious breach of the order or undertaking) contempt that is otherwise civil is considered to be criminal in nature: see Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3. 4. Further, the Court of Appeal has clarified that a contumacious, wilful and deliberate disobedience of an order of a court may be characterised as both civil and criminal contempt: see Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, per Beazley JA; and Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21; and Witham v Holloway, supra. 5. Even civil contempt, simpliciter, affects the administration of justice. Punishment for wilful disobedience of a court order is imposed for the purpose of disciplining the offender and vindicating the court's authority: AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at [112]. 6. As earlier stated, all of the punishments, available for the punishment of offences generally, are available to a sentencing judge in punishment for contempt. The principles that apply to all criminal offences apply equally to criminal contempt (and, in that respect, civil contempt). 7. The function of a sentencing judge is to impose a sentence appropriate to the gravity of the offence and that takes account of the subjective features of the offender. The gravity of the offence is generally referred to as objective seriousness, while the subjective features of the offender who committed it is generally referred to as the subjective circumstances. 8. Each of those is considered in a process often referred to as instinctive (or intuitive) synthesis, which takes into account the purposes of sentencing. Those purposes include punishment; protection of society; personal (or specific) and general deterrence; retribution; and reform: see s 3A of the Crimes (Sentencing Procedure) Act 1919 (NSW) ("the Act") and Veen v R (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14. In Veen, the High Court made clear that: "The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions." 1. Intuitive synthesis involves the court considering each of those aforesaid purposes and the objective seriousness and subjective circumstances to arrive at a result which seeks best to achieve each of the purposes to which the Court has referred above in these reasons. 2. Even in contempt proceedings, the Court may have regard to the provisions of s 21A of the Act, which set out mitigating and aggravating circumstances associated with offending. However, it should be borne in mind that most of the criteria, either mitigating or aggravating, prescribed by s 21A of the Act, are factors to which a sentencing court would, even in the absence of s 21A of the Act, have regard. 3. Finally, the Court has a wide range of sentences that it may impose for contempt of court: NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118. The sentences that may be imposed by a court for contempt include imprisonment; periodic detention; home detention; intensive correction orders; community service orders; good behaviour bonds; dismissal of the charge (whether accompanied by a good behaviour bond or a condition that the offender participate in an intervention program or not); deferral of sentence; a suspended sentence; a fine; and the making of a non-association or a place-restriction order. The restrictions, which otherwise apply to the imposition of some of the foregoing punishments, apply in relation to contempt. 4. This Court, in Commissioner for Fair Trading v Rixon (No 2) [2014] NSWSC 431 (per Garling J) made clear that in determining the sentence to be imposed, the Court is to consider the nature of the contempt committed and the degree to which the contemptuous conduct is egregious. The circumstances to which Garling J referred in the foregoing judgment include: the nature and circumstances of the contempt; the impact or likely impact of the contempt on the administration of justice; the extent of the offender's culpability for the conduct; the need to deter the offender and others from engaging in contempt; whether a finding of contempt has been previously made; whether contrition or remorse is displayed; whether an apology has been proffered; and the financial and personal circumstances of the offender, particularly when a fine is being sought: see also Paccar Financial Pty Limited v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622. Civil or Criminal Contempt? 1. The circumstances of the contempt have already been described. Orders issued from the Court on a number of occasions and were known by the second defendant/contemnor to have been issued. Certainly, the second defendant/contemnor knew that they had issued. He published responses to them. 2. Those responses, both in published form and in private conversations, made clear that the second defendant/contemnor was deliberately and contumaciously defying the authority of the Court in a number of ways. It is necessary to look at each of the orders and whether a breach (even a contumacious breach) of those orders would amount to criminal contempt. Non-Publication Offences 1. I deal first with the non-publication offences, being two counts relating to a failure to file an affidavit setting out financial information (counts 4 and 10) and the failure to surrender the passport (counts 5 and 11). 2. Ordinarily, a failure to file an affidavit in accordance with the directions of the Court would be a technical contempt, not even worthy of civil contempt proceedings. This affidavit is in different terms. It relates to financial information from which the Court can ascertain the capacity of the second defendant/contemnor to pay any fine that may be imposed and to determine whether there has been a breach of the freezing orders and, if so, the seriousness of any such breach. 3. Likewise, given the nature of the offending conduct of the second defendant/contemnor, the surrender of the passport, pursuant to the orders of the Court (Kunc J) of 15 June 2017, were akin to a condition on bail pending proceedings for an offence, to ensure that the risk of flight by the second defendant/contemnor was ameliorated. 4. The affidavit as to financial information was an important aspect associated with the administration of justice in these matters. The surrender of the passport was not only the subject of breach, but the second defendant/contemnor left Australia and the jurisdiction. Each of the matters involves a serious undermining of the authority of the Court and the administration of justice. 5. No ameliorating factors have been put by the second defendant/contemnor despite repeated opportunities to do so. 6. Despite the deliberate and contumacious manner in which the second defendant/contemnor has "snubbed his nose" at the orders of the Court in this regard, the nature of the orders themselves suggest that the Court should treat these breaches as a civil contempt, rather than a criminal contempt. Publication Offences 1. I deal secondly with the publication offences, which are all the counts charged except counts 4, 5, 10 and 11. The publication offences are in a totally different class. These proceedings were commenced in defamation arising from Internet and social media publications of the most vitriolic kind. The publications are plainly untrue. 2. They have defamed a person who, otherwise, is of the highest reputation and who donates his time and skill, which is, in the case of time, in short supply and, in the case of skill, at the highest possible level, to members of the Australian Defence Force and its allies who have been maimed as well as other pro bono purposes. A full discussion of these matters is contained in the reasons for judgment of the Court dealing with damages (Al Muderis v Duncan (No 3) [2017] NSWSC 726). 3. The second defendant/contemnor has deliberately, defiantly and repeatedly disobeyed the orders of the Court not to publish the websites, not to republish the websites and not to publish again the imputations contained in the original websites. 4. The publication and republication is a series of acts that amount to, for each of them, a contumacious defiance of the orders of the Court and are a criminal contempt (as well as a civil contempt). The defiance of the Court orders undermines the authority of the Court; interferes with the administration of justice; and, if left unchecked, would, if applied generally to orders of the Court, lead to chaos. 5. Given the response of the second defendant/contemnor to information provided to him as to the orders that had been issued, there can be no reasonable doubt that the conduct of the second defendant/contemnor was not only contumacious, it was a direct intention to disobey the orders of the Court and an obstinate disregard of the obligation imposed by the orders and owed to the Court that was done repeatedly and deliberately: see Seymour v Migration Agents Registration Authority (2006) 215 FCR 168; [2006] FCA 965. 6. For the reasons described above, I find in relation to the publication offences, being counts 1, 2, 3, 6, 7, 8 and 9, that each count is both a civil and criminal contempt. In the case of the non-publication offences, being counts 4, 5, 10 and 11, the Court will treat these as civil contempts. Burden of Proof and Inferences 1. Some of the findings made by the Court arise from circumstantial evidence. That is not unusual. It is necessary for the Court to describe the approach taken in relation to the drawing of inferences. 2. The drawing of inferences is "plain common sense": Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Jones v Southerland Shire Council [1979] 2 NSWLR 206; Fabre v Arenales (1992) 27 NSWLR 437. In Fabre v Arenales, Mahoney JA (with whom, relevantly, Priestley and Sheller JJA agreed), after citing the judgment of Menzies J in Jones v Dunkel (at 312) and, at length, of Windeyer J in Jones v Dunkel (at 320-321), said, in relation to the drawing of inferences: "There is in this nothing esoteric or peculiar to legal reasoning. It is, as Windeyer J said, 'plain commonsense'. A factual inference (if A, B, C exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J, 'human experience would be contradicted if' Z did not exist …. It follows that the inference will or may be drawn if general human experience (plain commonsense) will not be contradicted if the inference be drawn." (Fabre v Arenales at 445.F). 1. Notwithstanding that, on one view of the comment by Mahoney JA, it reverses the logical effect of that stated and quoted, being the joint judgment of Knox CJ and Dixon J, that is not the intention or the effect of the comment. In my view, in the context to which their Honours were referring, there is no distinction between drawing an inference "if general human experience will not be contradicted" or not drawing an inference, unless human experience would be contradicted if it were not drawn. 2. The drawing of inferences in civil and criminal proceedings was explained by Sir Frederick Jordan CJ, in Carr v Baker (1936) 36 SR (NSW) 301 at 306-307. His Honour said: "In a Court of justice, the question whether a particular fact has been proved must be determined by considering evidence and seeing whether the existence of the fact is probable in the light of that evidence. In a civil matter, it is necessary, in order that a fact may be regarded as established, that the evidence should be such that it is more probable that it exists than that it does not. The position is the same whether the evidence is direct or circumstantial: …. In a criminal matter, it is necessary, if the fact is to be proved by the prosecution, that the evidence should be such that not only is it more probable than not that the fact exists, but that there is no reasonable probability that it does not: it must be proved that it is so probable that no reasonable doubt exists that it is the fact: …. It has been clearly and emphatically laid down … that in no case can a fact be regarded as established unless its existence is at least a reasonable inference from some matter proved in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not of conjecture: …. The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability - a mere scintilla of probability such as would not warrant a finding in a civil action: … to such practical certainty as would justify a conviction in a criminal prosecution. … It is well established that if there is no piece of evidence which, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established: …. This situation may arise in two different ways. First, there may be no piece of evidence which suggests that the existence of the fact is more than possible. In such a case, since there is nothing to show whether the existence of the fact is probable or not, it is just as likely that it does not exist as that it does. There is no probability either way; and nothing equals nothing. … There may, however, be a case in which the evidence is such that in some aspects it raises a probability that the fact exists, and in other aspects it raises a probability that it does not. If, in such cases, the two countervailing probabilities are in perfect equipoise, the fact cannot be treated as established." (Citations omitted.) 1. The burden of proof remains on the plaintiff/prosecutor in a contempt proceeding (whether civil or criminal). Further, the standard of proof is the criminal standard and the plaintiff/prosecutor must prove the guilt of the defendant/contemnor beyond reasonable doubt. 2. I take that term to mean that each of the essential facts and each of the elements of the criminal or civil contempt must be proved in such a way that the evidence that the Court accepts does not allow for a reasonable hypothesis inconsistent with guilt: see The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35. An essential element is not proved beyond reasonable doubt when, on the evidence that is accepted, there remains a reasonable hypothesis inconsistent with guilt. 3. In determining that the evidence gives rise to the findings either by way of irrefragable inference or an inference beyond reasonable doubt, the Court has utilised the foregoing test and finds the offences, both civil and criminal contempt, to have been proved by the plaintiff/prosecutor beyond reasonable doubt. 4. There are a number of other aspects, given the behaviour of the second defendant/contemnor, with which the Court should deal. The interlocutory orders that expired on 4 August 2017, or may have expired on that date, ought to be made permanent. Given the contumacious nature and deliberate defiance of the Court orders by the second defendant/contemnor, and the vicious, vituperative and continuing attack on the plaintiff/prosecutor, permanent injunctive relief is appropriate. Conclusion 1. The plaintiff/prosecutor submits that the Court should deal with both penalty and guilt in the one judgment. There is no doubt that the submission of the plaintiff/prosecutor is most persuasive and there is authority, in unusual circumstances, to proceed on that basis. Ordinarily, the Court hears penalty separately from the finding of guilt. 2. This is an unusual proceeding and there is much to warrant dealing with penalty at the same time as guilt (including the avoidance of costs). However, the defendant/contemnor has continued to be absent from the proceedings, including not making submissions on penalty or in any proceedings that might bring to the Court any ameliorating factor on penalty. It is, therefore, appropriate, notwithstanding the submission of the plaintiff/prosecutor, to deal with the matter in the ordinary way and to pronounce guilt but to allow separate submissions on penalty. 3. The other aspect that requires comment is the issue of costs. The Court shall order indemnity costs on the basis that the conduct of the second defendant/contemnor in the conduct of the proceedings has been wholly unreasonable and, but for the contumacious disobedience and defiance of the Court's orders, the plaintiff/prosecutor would never have been required to take the proceedings. The contemnor has engaged in conduct that was deliberate and for which he has shown no contrition. 4. As a consequence, the plaintiff/prosecutor should not be out of pocket (save for costs that are unreasonably incurred or appear to be an unreasonable amount) for the task of enforcing the Court's orders and generally ensuring the proper administration of justice. The second defendant/contemnor has engaged in relevant misconduct in connection with the conduct of the proceedings in such a way that the order for indemnity costs ought to be made, including defying Court orders to flee the jurisdiction and cause unreasonable costs as a consequence: see Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11. 5. In this case an order that the costs be paid on the ordinary basis would not be sufficient compensation for the trouble and expense of having to take the proceedings. It is proper to order full indemnity for the costs, not incurred unreasonably, for the contempt proceedings. Nevertheless, the order for indemnity costs may be taken into account in the fixing of a penalty, if any is imposed. 6. The Court makes the following orders: 1. The second defendant/contemnor is guilty of criminal and civil contempt for counts 1, 2, 3, 6, 7, 8 and 9 of the Statement of Charge filed herein; 2. The second defendant/contemnor is guilty of civil contempt in relation to counts 4, 5, 10 and 11 of the Statement of Charge filed herein; 3. The plaintiff/prosecutor shall bring in a minute of order in relation to permanent injunctions, the necessary changes being made, in the terms of the interlocutory injunctions that have already issued; 4. The Court will hear the parties on appropriate penalty; 5. The second defendant/contemnor shall pay the plaintiff/prosecutor's costs of and incidental to the proceedings on an indemnity basis; 6. Submissions on penalty shall be in writing: 1. The plaintiff/prosecutor shall file and serve (in accordance with the orders for substituted service) any further submissions on penalty within 21 days of this judgment; 2. The second defendant/contemnor shall file and serve written submissions in relation to the penalty within 21 days of the date of any email sent to the second defendant/contemnor by the plaintiff/prosecutor containing the further written submissions on penalty, if any; 3. If written submissions are filed by the second defendant/contemnor, the matter will be listed for hearing on a date to be fixed. ********** 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: 19 June 2018