"Kangaroo Court" Contemnor Publishes Confidential Information Against Plaintiffs

Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106 (3 September 2021)

The contemnor was prosecuted for three earlier contempt for publications on his website.  The contemnor established two anonymous websites publishing the plaintiffs' confidential information.  The Court in determining the sentence for the contemnor took into consideration the contemnor's high risk of re-offending as well as his motivations in doing such acts. 

Facts:

In 2014, the plaintiffs commenced defamation proceedings against the contemnor in respect of material published on his website.  In April 2014, a suppression order was made under the Court Suppression and Non-Publication Orders Act 2010 (NSW), prohibiting the disclosure of specified information and material.  Still, the contemnor continued to publish further articles on his website with links to the documents that he was prohibited from disclosing.  Nicholas AJ in Munsie v Dowling [2014] NSWSC 962, found the contemnor guilty of contempt. 

The contemnor then published an article criticising Nicholas AJ’s judgment on liability.  Nicholas AJ noted that the contemnor’s submissions did not convey an apology.  Nicholas AJ took into account the assertion in the contemnor’s submissions that he had no previous criminal history and imposed a $2,000 fine, together with an order that he pay the plaintiffs’ costs.  In the second contempt matter, the contemnor asserted that he did not in fact pay the fine because he asserted it had been waived in some fashion by those responsible for recovering it. 

In the third contempt matter, the contemnor “boasted” that he had not paid the fine.  On 21 December 2016, two women commenced defamation proceedings against the contemnor in the Common Law Division of this Court in respect of an article published on his website.  Campbell J made a suppression order in respect of the plaintiffs’ names, ordered the contemnor to remove their names from the article published, and restrained him from further publication of the article in any form which included their names.  The contemnor did not remove the plaintiffs’ names from the article and proceeded to republish their names in succeeding articles.

The third prosecution for contempt arose from events on 3 February 2017, being the first return of the contempt motion in Doe v Dowling before the Registrar.  In a crowded courtroom, and in a “loud and aggressive” manner, the contemnor called the Registrar a known bribe taker and paedophile.  On 25 February 2017, the contemnor established an anonymous website (the Website) using a webhost based in the United States.  The contemnor posted a variety of material on the Website concerning the plaintiffs, who submitted a complaint to the World Intellectual Property Organisation (WIPO) in respect of the Website. 

8 On 19 April 2017, the plaintiffs commenced these proceedings against the publisher of the Website, referred to in the pleadings and orders as “Publisher X”, seeking orders restraining the use or disclosure of confidential information and an order to remove the Fifth Blog Post from the Website.   On 14 June 2017, WIPO concluded that the contemnor was the person responsible for the Website and ordered that the domain name for the Website be transferred to the plaintiffs.  On the same day, the contemnor created a second website, using a similar domain name (the Second Website), which was also anonymous, publishing the same material as the Website. 

Issue:

Whether or not the period of imprisonment in respect of the contemnor’s fourth conviction for contempt must be greater than the periods of imprisonment previously imposed. 

Applicable law:

Court Suppression and Non-Publication Orders Act 2010 (NSW) - prohibits the disclosure of specified information and material. 

Crimes (Administration of Sentences) Act 1999 (NSW) - does not apply to sentencing a person for contempt in the civil jurisdiction of the Court.
Supreme Court Rules 1970 (NSW) Pt 55 r 13 - provides that the Court may punish contempt by committal to a correctional centre or fine or both. The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 - Gibbs CJ, Mason, Wilson and Deane JJ said that sentencing for contempt of Court are considerable powers, resort to which imposes a heavy responsibility upon a court confronted with a determined challenge to its authority. 
Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 - Barrett J collated list of factors to be considered in determining penalties for contempt such as 

(a) the seriousness of the contempt proved;

(b) the contemnor’s culpability;

(c) the reason or motive for the contempt;

(d) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

(e) whether there has been any expression of genuine contrition by the contemnor;

(f) the character and antecedents of the contemnor;

(g) the contemnor’s personal circumstances;

(h) the need for deterrence of the contemnor and others of like-mind from similar disobedience; and

(i) the need for denunciation of contemptuous conduct.

Doe v Dowling [2017] NSWSC 1037 - the second contempt matter, where the contemnor asserted that he did not in fact pay the fine because he asserted it had been waived in some fashion by those responsible for recovering it.
Doe v Dowling [2017] NSWSC 202 - Harrison J heard the contempt motion in Doe v Dowling and, on 15 March 2017, found the contemnor guilty of contempt.

Doe v Dowling [2019] NSWSC 1222 - where two women commenced defamation proceedings against the contemnor in the Common Law Division of this Court in respect of an article published on his website.
Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 - where it was held that the Crimes (Sentencing Procedure) Act 1999(NSW) and the Crimes (Administration of Sentences) Act 1999(NSW) do not apply to sentencing a person for contempt in the civil jurisdiction of the Court. 
Ferguson v Dallow (No 5) [2021] FCA 698 - provides that when determining a penalty for contempt, the relevant history of the offender includes, and is limited to, other findings of contempt or convictions for offences similar to contempt.
He v Sun [2021] NSWCA 95 - provided that comparative cases do not provide a safe guide to the proper range or tariff of punishment for contempt of court as the nature of the contempt and its consequences vary so greatly.
Hinch v Attorney-General (Vic) [1987] VicRp 62; [1987] VR 721 -  Kaye J observed that the penalty to be imposed needs to reflect in a meaningful manner the need for personal deterrence of him.
In the matter of Jimmy’s Recipe Pty Ltd [2020] NSWSC 93 - provided that a  penalty in the form of an indemnity costs order is a common outcome in civil contempt proceedings, which may be considered to sufficiently meet the need for a sanction of the contempt found. 
Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 - emphasised the importance of deterrence in the age of social media. 
Munsie v Dowling (No 2) [2014] NSWSC 1042 - Nicholas AJ observed that the contemnor’s publications in contempt of the suppression order “demonstrated that the defendant has a high disregard for the operation of the courts and the conduct of the judges before whom he has appeared. 
Munsie v Dowling [2014] NSWSC 962 - where the plaintiffs commenced defamation proceedings against the contemnor in respect of material published on his website.

Porter v Australian Broadcasting Corporation [2021] FCA 863 - Jagot J rejected the contemnor’s submission that he was a journalist and news publisher. 
Prothonotary of Supreme Court of New South Wales v Ceren [2016] NSWSC 1187 - identified matters relevant to penalties for contempt. 

Prothonotary of the Supreme Court of New South Wales v Dowling [2018] NSWSC 1301 - provided that the Crimes (Sentencing Procedure) Act 1999(NSW) and the Crimes (Administration of Sentences) Act 1999(NSW) do not apply to sentencing a person for contempt in the civil jurisdiction of the Court. 
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 - where the Court of Appeal acknowledged that the Court had no statutory power to impose community service but held that the Court had power “in effect, impose an obligation of community service in the Liverpool Hospital provided the hospital was prepared to accept [the contemnor] and as a condition for suspending the operation of the fine”
Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202 - where the rationale for punishing for contempt was described as fundamental that persons must obey, and cannot be allowed to ignore, orders that the Courts make.

Wood v Galea (1997) 92 A Crim R 287 - where it was held that an offence of contempt is a common law offence, which means that the maximum penalty is at large, subject only to the restriction in the Bill of Rights 1688 (UK) upon cruel punishments.

Analysis:

In determining the sentence, the motive of the contemnor should be considered.  While here is no direct evidence of the contemnor’s motive for breaching the Orders.  The contents of his publications suggest that he bears considerable animus toward the plaintiffs.  Another reason or motive appears to be the contemnor’s efforts to portray himself as a journalist or media publisher since his anonymous websites cross-promoted articles published by the contemnor on his website.

Whilst the contemnor submitted that there “was no damage done to anyone or anything”, it is the very nature of confidential information that its confidential quality is destroyed by the information being published.  The contemnor’s actions in persisting in publishing the material notwithstanding the Orders was directed to seeking to destroy the subject matter of the proceedings.  The maintenance of anonymity, once the plaintiffs had made complaint to the operator of the Website, being the contemnor, compounded the seriousness of his conduct.

Conclusion:

Shane Dowling is sentenced for contempt, having found he committed contempt as charged in Seven Network (Operations) Ltd v Dowling [2021] NSWSC 726.  This is the contemnor’s fourth such sentence, as such there is a need for greater deterrence.  The Court further concluded that he was motivated by animus towards the plaintiffs and self-promotion.  He has shown no contrition or acknowledgement of wrongdoing.  He is likely to reoffend. He appears to think that proceedings such as these establish him as a “journalist”.