Court Determines Sentence for Plaintiffs Charged with Defamation
Brennock & Dixon v Norman [2021] NSWSC 1182 (17 September 2021)
The plaintiffs are charged with defamation and for failing to comply with permanent injunctions restraining further publication of defamatory material. The Court, in determining the sentence appropriate for the plaintiff, assessed the latter's intent and the relevant range of punishments for contempt in the Supreme Court Rules 1970 (NSW).
Facts:
The defendant defamed the plaintiffs by publishing the infringing articles the conduct of the defendant should be characterised as contumacious. The plaintiffs then sued the defendant and the matter was determined by Fagan J in the Supreme Court. Fagan J decided the question in favour of the plaintiffs and awarded substantial damages against the defendant amounting to $400,000 plus costs. Certain orders in the form of injunctions restraining the defendant. The plaintiffs submitted the defendant’s conduct involved a deliberate defiance of the Court’s orders as she was fully aware that she was prohibited by the injunctions from imputing fraud to the plaintiffs.
Other articles on the defendant’s website casts aspersions on the legal process in particular the defamation and contempt proceedings in effect as abuses of process intended to silence legitimate criticism and enable the plaintiffs to perpetuate their fraud. The defendant has refused to accept Fagan J’s findings in the defamation proceedings. Her unwillingness or inability to accept that her allegations are wrong requires the need for deterrence. At the beginning of the hearing the defendant had not apologised either to the Court or the plaintiffs.
In some cases the articles had been amended but in other cases the articles remained substantially in their original form. Articles 11, 13, and 15 continued to contain offending material while Articles 12 and 14 had been substantially amended. At the 11 August hearing, all articles that could have objections to them had been taken down. The defendant submitted that the material did not demonstrate a defiance of the Court on her part.
She had merely written a series of Blog posts about her personal experience and being disappointed with the court process including the defamation proceedings. The plaintiffs sought their costs of the proceedings on an indemnity basis.
Issue:
Whether or not the defendant is liable for contempt.
Applicable law:
Bill of Rights 1688 (UK) - governs the penalty for the common law offence of contempt.
Civil Procedure Act 2005 (NSW) - provides that the basis for awarding costs in such circumstances (a finding of contempt) the power to award costs derives from the inherent jurisdiction of the Court.
Crimes (Administration of Sentences) Act 1999 (NSW) - does not apply to the imposition of a sanction for contempt.
Crimes (Sentencing Procedure) Act 1999 (NSW) - provides that the power that a court had before the commencement of this section to require a person to enter into a recognizance to be of good behaviour or to keep the peace, or to take surety from a person for the performance of an obligation imposed (whether on that or any other person) by such a recognizance is abolished.
Supreme Court Rules 1970 (NSW) - provides that the Court may punish a non-corporate contemnor by committal to a correctional centre or fine or both, but it does not limit the penalty which this Court may impose because the Court’s power to punish contempt derives from its inherent power.
Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 - where it was held that contemptuous conduct may be contumacious especially if it occurs in circumstances of public defiance.
Darwin v Norman [2020] NSWSC 357 - where the findings make clear the defendant published the infringing matters in contravention of permanent injunctions granted by Fagan J as part of final relief in defamation proceedings brought by the plaintiffs against the defendant.
Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 - provides that punishment for contempt should be apt to uphold the purpose of the jurisdiction, namely, the undisturbed and orderly administration of justice.
Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340; (2018) 99 NSWLR 229 - where the Court decided that the Crimes (Sentencing Procedure) Act 1999 did not apply to contempt proceedings in its civil jurisdiction.
Grocon v Construction, Forestry, Mining and Energy Union (No. 2) [2014] VSC 134 - provided that public defiance includes communications to others or to the world at large which express or imply defiance of the authority of the Court.
Haritopoulos Pty Ltd v Scott [2007] VSCA 174 - provides that willful and deliberate conduct which is calculated to thwart the fundamental purpose of the Court’s orders is sufficient to constitute contumacy
Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277 - provides that the penalty for the common law offence of contempt is at large (subject to the Bill of Rights 1688 (UK)prohibition on cruel and unusual punishment and excessive fines), and may include imprisonment.
Registrar of the Court of Appeal v Manian (No. 2) (1992) 26 NSWLR 309 - explained that punishment for contempt is to deter the contemnor and others in future from committing like contempts, and to denounce the conduct.
Street v Luna Park Sydney Pty Ltd [2009] NSWSC 767 - provides that the factors to be taken into account in assessing the proper punishment for contempt remain a useful guide to the approach.
Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17 - where it was held that the imposition of a term of imprisonment for non-compliance with court orders isgenerally not appropriate unless the non-compliance was contumacious.
Witham v Holloway (1995) 183 CLR 525 - observed that disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.
Wood v Staunton (No. 5) [1995] NSWSC 61; (1996) 86 A Crim R 183 - Dunford J listed factors to be taken into account in assessing the proper punishment for contempt. They are:
(a) The seriousness of the contempt proved;
(b) Whether the contemnor was aware of the consequences to himself or herself of what he or she did;
(c) The actual consequences of the contempt;
(d) Whether the contempt was committed in the context of serious crime;
(e) The reason for the contempt;
(f) Whether the contemnor has received any benefit by indicating an intention to give evidence;
(g) Whether there has been any apology or public expression of contrition;
(h) The character and general antecedents of the contemnor;
(i) General and personal deterrence; and
(j) Denunciation of contempt.
Analysis:
A monetary penalty would lack utility as a personal deterrent for the defendant. To date she had not paid the plaintiffs the $400,000 awarded or the costs of the trial. It was open to the Court to impose a custodial sentence which would represent an effective personal deterrent for the defendant. In the alternative the Court could impose a suspended custodial sentence. Upon careful consideration, the defendant did make efforts to avoid breaching the injunctions.
The conclusion of breach involves a consideration of whether the ordinary reasonable person would have understood the published material to carry a particular imputation of the judgment. It would only be contumacious conduct on the part of the defendant if the imputation was published in express terms. Here, the defendant used devices in some articles so as not to identify Mr Brennock by name and also used indirect language in order not to breach the injunction.
Conclusion:
The Court found the defendant guilty of contempt in publishing certain matters on her website, www.nightcapnightmare.com. The defendant published the infringing matters in contravention of permanent injunctions granted by Fagan J as part of final relief in defamation proceedings brought by the plaintiffs against the defendant. The defendant is sentenced to two weeks jail and in addition to the $400,000 in damages is fined $20,000 plus costs of this proceeding awarded against the defendant.
