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[2021] NSWSC 726
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Seven Network (Operations) Ltd v Dowling [2021] NSWSC 726 (21 June 2021)
Last Updated: 21 June 2021
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Supreme Court
New South Wales
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Case Name:
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Seven Network (Operations) Ltd v Dowling
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Medium Neutral Citation:
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Hearing Date(s):
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1 and 2 February 2021; last submissions received 23 February 2021
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Date of Orders:
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21 June 2021
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Decision Date:
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21 June 2021
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Jurisdiction:
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Equity
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Before:
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Rees J
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Decision:
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Defendant found guilty of contempt.
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Catchwords:
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COURTS AND JUDGES – apprehended bias – application for recusal
– applicant published disparaging statements about
judge and other judges
of the court – statement by applicant about judges did not lead to
apprehension that presiding judge
may decide the case other than on its merits
– judge determined earlier motion – principles at [12]-[18] –
earlier
motion on different subject matter – applicant did not give
evidence – no findings of fact – no credit findings
– no
matter determined on a final basis – application
refused.
CIVIL PROCEDURE – transfer of proceedings for
apprehended bias – principles at [25] – application previously made
– no change in circumstances since earlier application – Court
should determine charge of contempt of its orders –
application
refused.
CONTEMPT – criminal contempt – orders
restraining publication of text messages and blog – order to remove blog
from
website – orders served on publisher of website – blog
continued to be published – evidence established that defendant
was
publisher of the website – criminal contempt proved.
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Legislation Cited:
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Cases Cited:
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Category:
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Principal judgment
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Parties:
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Seven Network (Operations) Ltd (First Plaintiff)
Seven West Media Ltd
(Second Plaintiff)
Shane Dowling (Defendant)
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Representation:
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Counsel:
Mr K Smark SC (Plaintiffs)
Defendant (Self
Represented)
Solicitors:
Addisons (Plaintiff)
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File Number(s):
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2017/00116771
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JUDGMENT
- By
motion dated 21 July 2017, the plaintiffs, Seven Network (Operations) Limited
and Seven West Media Limited, seek to prosecute the
defendant, Shane Dowling,
for contempt. It is said that, in contempt of orders made by this Court on 19
April 2017 (the Orders), the defendant used or disclosed the content of
text messages in a blog (the Fifth Blog Post) posted on a website of
which the defendant was the sole owner or publisher (the Website) and,
contrary to the Orders, did not remove the Fifth Blog Post from the Website.
- Rather,
the Fifth Blog Post remained published on the Website until the plaintiffs
obtained the domain name for the Website, following
which the defendant
established another website (the Second Website) on which the Fifth Blog
Post continued to be published until 20 July 2017, being three months from the
date of the Orders. The defendant
disputes that he operated the Website or the
Second Website and, further, that he was served with the Orders.
- Before
the hearing had progressed beyond the plaintiffs moving on their motion, the
defendant made an application that I disqualify
myself for perceived bias and
renewed an earlier application made to Kunc J (Seven Network (Operations) Ltd
v Dowling [2019] NSWSC 1760) that these proceedings be transferred to
Queensland. I refused both applications and said that I would publish my
reasons with my
judgment. My reasons follow.
APPLICATION FOR
RECUSAL
- The
relevant principles concerning recusal for apprehended bias are stated by
Gleeson JA (with whom Hulme and Button JJ agreed) in
Chamoun v District Court
of New South Wales [2018] NSWCA 187 at [35]- [38]:
35 The test for determining whether a judge is disqualified by
reason of the appearance of bias is “whether a fair-minded
lay observer
might reasonably apprehend that the judge might not bring an impartial and
unprejudiced mind to the resolution of the
question the judge is required to
decide”: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at
[11]; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011]
HCA 48 at [31].
36 The test of apprehension of bias is objective. It does not
require an assessment of the state of mind of the judge in question,
as is
necessary on an inquiry about actual bias: Johnson v Johnson at [12];
Michael Wilson & Partners v Nicholls at [33].
37 The application of the apprehension of bias principle
requires two steps. The first is the identification of what it is said
might
lead the judge to decide a case other than on its legal and factual merits. The
second is that there must be an articulation
of the logical connection between
that matter and the feared deviation from the course of deciding the case on its
merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000]
HCA 63 at [8]; Michael Wilson & Partners v Nicholls at [63].
38 Accordingly, an allegation of apprehended bias requires an
objective assessment of the connection between the facts and circumstances
said
to give rise to the apprehension and the asserted conclusion that the judge
might not bring an impartial mind to bear upon the
issues that are to be
decided. The question is not whether the judge had in fact prejudged an issue:
Michael Wilson & Partners v Nicholls at [67].
- The
defendant applied for my recusal on, essentially, two bases.
Defendant’s allegations against other judges of this
Court
- First,
no judge of this Court is said to be able to bring an impartial mind to the
matter given allegations which the defendant has
made against officers of this
Court, including the Chief Justice of New South Wales. These allegations were
repeated during the hearing,
albeit unaccompanied by any evidence to support the
substance of the allegations.
- As
I observed in Seven Network (Operations) Ltd v Dowling [2018] NSWSC 1890
at [58]- [62], ordinarily, an application that a judge recuse themselves for bias
is based upon something that the judge has said or done. Here, the
defendant does not point to anything said by a judicial officer but, rather, to
what he has said about judicial officers as somehow preventing other
judges of this Court fairly deciding proceedings in which he is a party.
Similar
applications failed in Attorney General v Markisic [2011] NSWSC 1436 and
Prothonotary of the Supreme Court of New South Wales v Dowling [2017]
NSWSC 392.
- I
do not consider that a reasonable bystander would apprehend that, as a
consequence of the defendant’s remarks about judicial
officers, my ability
to determine a case concerning the defendant in a neutral and dispassionate
manner would be impeded. Indeed,
a reasonable bystander would be unlikely to
assume that I was particularly interested in the defendant’s remarks. Were
it otherwise,
all someone would need to do to avoid their matter being heard
would be to make allegations about the Court. As Gleeson CJ, McHugh,
Gummow and
Hayne JJ observed in Ebner v Official Trustee in Bankruptcy (2000) 205
CLR 337; [2000] HCA 63 at [19]- [20]:
19 Judges have a duty to exercise their judicial functions when
their jurisdiction is regularly invoked and they are assigned to
cases in
accordance with the practice which prevails in the court to which they belong.
They do not select the cases they will hear,
and they are not at liberty to
decline to hear cases without good cause. Judges do not choose their cases; and
litigants do not choose
their judges. If one party to a case objects to a
particular judge sitting, or continuing to sit, then that objection should not
prevail unless it is based upon a substantial ground for contending that the
judge is disqualified from hearing and deciding the
case.
20 ... if the mere making of an insubstantial objection were
sufficient to lead a judge to decline to hear or decide a case, the
system would
soon reach a stage where, for practical purposes, individual parties could
influence the composition of the bench. That
would be intolerable.
- I
declined to recuse myself on this basis.
Judge has determined
another interlocutory application
- Second,
the defendant contended that I could not hear the matter given my earlier
judgment and orders in Seven v Dowling [2018], when I determined an
interlocutory motion filed by the defendant seeking orders that an interstate
judge be appointed to
hear the matter or that the matter be transferred to the
Federal Court of Australia, and that a subpoena issued by the plaintiffs
to the
Commissioner of Police be set aside (the subpoena sought production of material
including a hard drive belonging to the defendant
(the Hard Drive)). At
that hearing, the defendant contends that I denied him natural justice and his
human rights and gave instructions to prison
guards to threaten him “to
participate, to go get the court books from my cell and all that”. The
defendant elaborated
on his concerns in an article published on his website
shortly before this hearing, which included his views about my ability to
hear
the motion and my abilities generally.
- The
plaintiffs submitted that the steps taken in Seven v Dowling [2018] were
to dispose of the Court’s business, including to ensure that the defendant
had the court book and was in a position
to deal with the matter. The fact that
the defendant had made strong criticisms of me in his recent article would not
lead ordinary
people to assume that I could not deal with this matter properly:
Ebner at [20].
- As
the High Court noted in Michael Wilson & Partners Ltd v Nicholls
(2011) 244 CLR 427; [2011] HCA 48, the making of an interlocutory order does
not, of itself, preclude the judge from sitting on the trial of that matter, as
an interlocutory
order will not usually require a judge to determine any matter
on a final basis: at [68] per Gummow ACJ, Hayne, Crennan and Bell
JJ. Something
more is required, such as making a determination on an issue that is to be
decided at trial, making a finding about
the reliability of a party or witness,
making a choice between competing versions of events, or making a decision as to
the credit
of a witness beyond determining that unchallenged evidence given on
an interlocutory application was apparently credible: at [72]-[73].
- The
example oft-cited is Australian National Industries Ltd v Spedley Securities
Ltd (in liq) (1992) 26 NSWLR 411, where a series of cases arising from
complex company litigation were assigned to Cole J of the Commercial Division.
In some of the
proceedings, Cole J made findings in which he was critical of the
recollection, credit and commercial conduct of the parties. Mahoney
JA (with
whom Meagher JA agreed) considered that it was proper to approach a question of
this kind upon the basis that, where decisions
of fact or credibility had been
made, a lay person may consider the judge will subsequently decide the same
issue in the same way,
that is, to have pre-judged the matter, contrary to the
duty of impartiality imposed upon judges in the Australian court system:
435,
442. As Mahoney JA summarised the relevant principles at
438:
(a) the disqualification of a judge for apprehended pre-judgment depends on form
rather than substance; (b) whether there is an unacceptable
appearance of
pre-judgment is to be decided, not according to likelihood, but according to
possibility; (c) it is to be judged, not
according to what the court and the
parties know, but according to the impressions of a lay person who does not know
the facts; and
(d) there will be an unacceptable appearance of pre-judgment if
the judge has previously dealt with the issue of fact or credibility
which is
before him in the instant case.
- The
Court of Appeal held in Spedley Securities that Cole J should have
disqualified himself from hearing related matters in which the same issues and
the credit of the same witness
would arise for determination as a fair-minded
observer would conclude that Cole J had formed opinions which might affect his
determination
of outstanding matters.
- Thus,
in Kirby v Centro Properties Ltd (No 2) (2011) 202 FCR 439; [2011] FCA
1144, Middleton J recused himself from hearing a trial on the basis that he had
made factual findings and rulings in two previous cases
that were relevant to
and disputed in the upcoming trial: at [61]-[64]. Likewise, in Hills Shire
Council v Mouawad [2014] NSWLEC 59; (2014) 203 LGERA 233, Pepper J recused
herself by reason of an adverse finding made in respect of
Mr Mouawad’s credit in earlier, unrelated proceedings.
- The
Court of Appeal formulated the question in Barakat v Goritsas (No 2)
[2012] NSWCA 36 at [11] per Basten JA, with whom Young JA and Sackville AJA
agreed:
... the term "prejudgment" ... must refer to the apparent formation of a view on
the part of the trial judge in respect of an issue
which will (or may) need to
be determined at the trial. Adapting the "central and determinative question"
identified by the plurality
in Michael Wilson & Partners, at [68], it
is necessary to ask, "might what was done in connection with [the interlocutory]
applications reasonably cause a fair-minded
lay observer to apprehend that the
judge might not bring an impartial mind to the resolution of a question for
decision at the trial?"
- In
Barakat, the applicants relied upon a series of disparaging remarks made
by the judge of the applicants’ senior counsel during the course
of a
series of interlocutory applications. The judge’s remarks were said to
reflect scepticism and disdain for the applicants’
case. As to how such
evidence should be analysed, Basten JA observed at [13]:
... The fair-minded lay observer must be taken to have heard the whole of the
exchanges between counsel and the bench on the relevant
days, with some
understanding of what was appropriate conduct for both counsel and the court and
what was not. The fair-minded lay
observer is unlikely to apprehend bias against
one party merely because the trial judge describes the behaviour of counsel for
that
party as disgraceful or tendentious, unless the observer would consider
such epithets inapt to the extent of being unreasonable and
indicative of an
inability to bring an impartial mind to bear on the issues in dispute. For
example, to describe as "tendentious"
a submission which did not come to grips
with the issues which has been identified, or needed to be identified might be
seen as reasonable,
particularly if counsel had been given more than one
opportunity to address the issue. To describe the labelling of a submission
by
counsel as "tendentious" as "a very serious accusation" might itself fall into
the characterisation it sought to dismiss: applicants'
written submissions at
par 80. That is because the complaint failed to identify in what way the
"accusation" was not reasonable,
given the context in which it was
used.
- The
Court of Appeal concluded in Barakat that the judge’s comments were
not sufficient to demonstrate that a fair-minded lay observer might hold the
opinion that the
judge might not determine fairly the issues on the basis of the
evidence and arguments as to the facts and law presented to him:
at [66].
- Returning
to Seven v Dowling [2018], when the motion came before me for hearing on
13 September 2018, the defendant was in gaol. In preparation for the hearing,
a
court book had been prepared and supplied to him in gaol: Seven v Dowling
[2018] at [38]-[39]. The hearing is described in Seven v Dowling [2018]
at [40]-[41]:
[40] On 13 September 2018, the hearing of the Transfer Motion
was listed before me. The defendant appeared by audio visual link.
The defendant
informed me that he did not have the Court Book with him in the video booth and
had only been given 10 minutes’
notice of the hearing by prison officers.
The defendant said he was not in a position to proceed with the hearing and
would not be
in a position to do so until he was released from gaol. I indicated
that I was not minded to adjourn the hearing of the Transfer
Motion given the
procedural history of the matter. The defendant said he had been denied natural
justice, did not have access to
all of his documents, was otherwise engaged in
preparing for other court proceedings, repeated his remarks about judicial
officers
and lay on the floor of the video booth. The court adjourned until a
correctional officer provided the defendant with the Court Book
in the video
booth and he was given an opportunity to resume his seat.
[41] After the adjournment, the defendant declined to
participate in the proceedings and declined to identify the affidavits which
he
relied upon in support of the Transfer Motion. The defendant sought an
adjournment of the hearing of the Transfer Motion until
he was out of gaol which
“should be 21 September 2019” which was, obviously, a year away.
...
- The
hearing was adjourned for two weeks. In the meanwhile, the defendant filed an
Application for Removal to the High Court of Australia
and sought to stay his
motion. At the adjourned hearing of the defendant’s motion on 27 September
2018, I refused the defendant’s
application for the proceedings to be
stayed until the defendant’s application for removal to the High Court of
Australia had
been determined. (That application was ultimately refused with
costs: Dowling v Seven Network (Operations) Ltd; Dowling v Capilano Honey
Ltd; Dowling v Jane [2019] HCASL 311.) The hearing then proceeded as
described in Seven v Dowling [2018] at [45]:
The defendant again indicated in no uncertain terms that he was not going to
proceed on his motion. I informed him that, if he refused
to participate in the
hearing of the Transfer Motion, I may dismiss the motion because he declined to
progress it. I asked him to
identify the evidence that he relied upon in support
of the Transfer Motion and he declined to do so. He declined to deal with the
Transfer Motion.
- I
refused the defendant’s application to adjourn the hearing of his motion
until he was out of gaol, expected to be in about
a year. I dismissed the
defendant’s motion: Seven v Dowling [2018] at [69]. I also declined
the plaintiffs’ request for an order for general access in respect of the
Hard Drive. Instead,
I appointed an independent solicitor to inspect the Hard
Drive and identify any records over which the defendant may be entitled
to claim
legal professional privilege and to copy the non-privileged records onto a
separate storage device, to be made available
for inspection by the plaintiffs.
- Applying
the principles set out at [12]-[18] to the case at hand, the motion which was the subject
of Seven v Dowling [2018] concerned different subject matter to the
contempt motion presently before the Court. The defendant did not give evidence.
I made no findings of fact. I made no credit findings. I did not determine any
matter on a final basis. I did not even determine
the defendant’s motion
but dismissed it for want of prosecution.
- As
to whether, by reason of what was said and done during the hearings on 13 and 26
September 2018, prejudgment is indicated in respect
of the contempt motion, the
defendant’s central complaint is that I pressed him to proceed with his
motion notwithstanding
that he was then in gaol but appearing by AVL link and
with the relevant materials before him in a Court Book. The fair-minded lay
observer must be taken to have heard the whole of the exchanges between the
defendant and the bench during those hearings, with some
understanding of what
was appropriate conduct for the defendant and the Court and what was not, in
particular, having regard to the
procedural history of the defendant’s
motion documented in Seven v Dowling [2018] at [6]-[39], [67]-[68]. I do
not consider that a fair-minded observer would be concerned that, having
dismissed the defendant’s
motion, I would not bring a fair and impartial
mind to hear the evidence and submissions from the plaintiffs and defendant in
respect
of the contempt motion and to determine that motion according to law. I
declined to refuse myself on this basis.
APPLICATION TO TRANSFER
- The
defendant submitted that these proceedings should be transferred to Queensland
because of perceived bias by the Court given his
comments about judicial
officers of this Court. A recent judgment by Kunc J refusing an earlier transfer
application was said to
be tainted with perceived bias: [2019] NSWSC 1760. As to
why I should entertain a fresh application, the defendant submitted that Kunc J
did not make a decision on whether to transfer
the substantive proceedings (that
is true, but his Honour did decide not to transfer the contempt motion).
Further, since Kunc J’s judgment, the defendant had published a book on
the subject
of his allegations about judicial officers. The plaintiffs submitted
that the basis of the present transfer application was the same
as that earlier
refused by Kunc J. In any event, the defendant had not shown a sufficient basis
warranting a transfer.
- Where
application is made to transfer proceedings between courts under cross-vesting
legislation by reason of embarrassment or apprehended
bias, an important
consideration is whether a party is in a position to exercise authority over
every judge of the Court. Collegiality
between members of a Court, or the fact
that a witness is known to all judges of the Court, is not sufficient: Lunn v
The Commissioner for Public Employment [2009] NSWSC 19 at [21]
(“special relationship of [a party] to the Judges” may warrant
transfer); Trustees of the Christian Brothers v Cardone [1995] FCA 1309; (1995) 57 FCR 327
at 336 (“[t]here is no general rule that a judge is disqualified from
hearing a case in which a witness known to him or her
will be called”);
McLean v Nicholson [
2002] VSC 446 
at [17] (proceedings transferred where
“[a]s the Chief Executive Officer of this Court the plaintiff's father is
the person principally
responsible for the day to day operation of the Court in
its non-judicial activities”); O’Connor v Nationwide News Pty Ltd
(1995) 128 FLR 61 at 70 (“I do not consider that the judges of this or
of the Federal Court are necessarily disqualified for apprehended bias
merely by
reason of their common membership with the plaintiff on the Federal
Court”).
- As
I understand it, the defendant contends that he is universally disfavoured by
judges of this Court such that the motion should
be transferred to Queensland.
However, just such an application was recently refused by Kunc J. Generally, a
court will only entertain
further interlocutory applications if there has been a
material change in circumstances or new evidence: Nominal Defendant v
Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 at [10]- [11] (Mason P); [72]
(Heydon JA); [118] and [121] (Foster AJA). The matters that the defendant raises
in support of his present transfer
application were, by and large, raised and
considered by Kunc J (see [2019] NSWSC 1760 at [6], [17] and [18]). In refusing
the application, Kunc J followed Capilano Honey Ltd v Mulvany (No 3)
[2018] NSWSC 767, where McCallum J observed at [34]:
...this Court is clearly the “more appropriate” Court to determine a
question of contempt of its own orders. Indeed,
it is doubtful whether the Court
of another State would have authority to determine that
question.
- Likewise,
I note that, in Prothonotary of the Supreme Court of New South Wales v
Dowling [2017] NSWSC 392, Adamson J observed at [9]:
... the power of a particular court to deal with proceedings for contempt is
pre-eminently one which in my view ought be dealt with
by the court itself as
constituted by judges whose commissions are to the particular
court.
- Kunc
J considered that it was difficult to imagine a set of circumstances where it
would be in the interests of justice for a court
other than the court whose
orders are alleged to have been contemptuously breached to determine a contempt
motion: [2019] NSWSC 1760 at [24]. His Honour could see no proper basis to
transfer the contempt motion to Queensland but left it open as to whether the
substantive
proceedings, as distinct from the contempt motion, should be
transferred to Queensland: at [25]-[26].
- The
only additional matter which has occurred since Kunc J dismissed the application
to transfer is that the defendant has published
a book making allegations
concerning judicial officers of this Court. This does not seem to me to change
the position. The appropriate
court to determine a charge of contempt in respect
of disobedience to this Court’s orders is this Court. For these reasons,
I
refused the defendant’s application to transfer the contempt motion to
Queensland.
CONTEMPT MOTION
- The
plaintiffs seek a declaration that the defendant was in contempt of Court for
breach of orders made on 19 April 2017 (the Orders)
including:
4 ... until further order, the defendant, by itself, its
servants or agents, be restrained from using or disclosing, the content
of text
messages described in Confidential Exhibit RMK1 to the affidavit of Richard
Michael Keegan sworn 19 April 2017 in this proceeding.
5 ... until further order, the defendant, by itself, its
servants or agents be restrained from using or disclosing, the content
of the
[Fifth Blog Post] as defined in the affidavit of Richard Michael Keegan sworn 19
April 2017 in this proceeding.
6 ... until further order, the defendant forthwith remove from
the [Website] [the Fifth Blog Post] as defined in the affidavit
of ... Richard
Michael Keegan sworn 19 April 2017 in this proceeding.
- According
to the Statement of Charge:
3 The defendant was at all material times the sole owner and
publisher of the [Website] ...
4 On 19 April 2017, the defendant was served with a sealed copy
of the 19 April Orders by email in accordance with order 9 thereof.
5 The defendant was aware of the 19 April Orders:
a. Having been served as set out above;
and
b. Having been sent a copy of the Orders to his email
address
shanedowling@outlook.com on 26 April 2017 following the
defendant's request to be provided with a copy of the orders in these
proceedings.
6 From 6pm on 19 April 2017 in contumacious disobedience of
Order 4 of the 19 April Orders, and thereby committing a contempt of
the Court,
the defendant disclosed and published the content of text messages described in
Confidential Exhibit RMK1 to the affidavit
of Richard Michael Keegan sworn 19
April 2017 in this proceeding.
7 From 6pm on 19 April 2017 in contumacious disobedience of
Order 5 of the 19 April Orders, and thereby committing a contempt of
the Court,
the defendant disclosed and published the content of the [Fifth Blog Post] as
defined in the affidavit of Richard Michael
Keegan sworn 19 April 2017 in this
proceeding.
8 From 6pm on 19 April 2017 in contumacious disobedience of
Order 6 of the 19 April Orders, and thereby committing a contempt of
the Court,
the defendant failed to remove from the Website the [Fifth Blog Post] as defined
in the affidavit of Richard Michael Keegan
sworn 19 April 2017 in this
proceeding.
...
12 From 8pm on 19 April 2017 until approximately 14 June 2017,
the defendant continued to publish the [Fifth Blog Post] on the
Website which
published and disclosed the content of text messages subject to the suppression
order in Order 7.
- The
charge is of criminal contempt, being contumacious disobedience to the Orders
that exhibits defiance of the Court, being wilful
and not merely casual,
accidental or unintentional. The plaintiffs seek that the defendant be punished
for contempt, together with
an order that he pay the plaintiffs’ costs of
the motion forthwith and on an indemnity basis.
WITNESSES
- The
plaintiffs relied on the evidence of solicitors, Richard Keegan and Alexander
Latu, and digital forensic expert, Dr Bradley Schatz,
each of whom were
cross-examined.
- Mr
Keegan was an honest and credible witness.
- Mr Latu
was an honest, impressive witness and I accept his evidence.
- Dr Schatz
has a Bachelor of Science (Computer Science) from the University of Queensland
and a Doctor of Philosophy (Digital Forensic)
from Queensland University of
Technology. He is widely published, sits on the board of professional journals
and conferences and
is Adjunct Associate Professor at the Queensland University
of Technology. Dr Schatz gave evidence in a fair and reasonable manner.
He was
an impressive witness and I accept his evidence.
- The
defendant called no witnesses. It should be immediately noted that, this being a
charge of criminal charge, the defendant has
a right to silence and a privilege
against self-incrimination: British American Tobacco Australia Services Ltd v
Cowell (2002) 7 VR 524; [2002] VSCA 197 at [174]; Mirus Australia Pty Ltd
v Gage [2017] NSWSC 1046, Ward CJ in Eq at [120]-[122]. As to the inference,
if any, which may be drawn against a person who choses to exercise that right,
Gaudron ACJ, Gummow, Kirby and Hayne JJ explained in RPS v The Queen
(2000) 199 CLR 620; [2000] HCA 3, at [27]-[28]: (emphasis in
original)
27 ... it will seldom, if ever, be reasonable to conclude that an accused in a
criminal trial would be expected to give evidence.
The most that can be said in
criminal matters is that there are some cases in which evidence (or an
explanation) contradicting an
apparently damning inference to be drawn from
proven facts could come only from the accused. In the absence of such evidence
or explanation,
the jury may more readily draw the conclusion which the
prosecution seeks. As was said in Weissensteiner v The
Queen:
“[I]n a criminal trial, hypotheses consistent with
innocence may cease to be rational or reasonable in the absence of evidence
to
support them when that evidence, if it exists at all, must be within the
knowledge of the accused.”
28 ... The observations by the Court in Jones v Dunkel must not be
applied in criminal cases without taking account of those considerations.
- As
such, I draw no adverse inference against the defendant by reason of his
decision not to give evidence.
COMPUTER FILES, WEBSITES AND
BLOGS
- The
central question is whether the defendant operated the Website which published
the plaintiffs’ confidential information
in the Fifth Blog Post, contrary
to the Orders. To this end, the plaintiffs retained Dr Schatz to analyse the
Hard Drive and other
material in order to ascertain whether the defendant
published material on the Website. Some of the material found on the Hard Drive
and relied upon by the plaintiffs on their contempt motion concerned material
published by the defendant in respect of separate legal
proceedings. The
relevance of this material was that it was said to link the defendant to the
Website.
- Some
complexity and detail was involved in Dr Schatz’s evidence, including of a
technical nature concerning computer files,
websites and
blogs.
Metadata
- According
to Dr Schatz, computer files, such as Word and Excel documents, have internal
and external “metadata” which
assists in determining when the file
was created, when the file was last modified and whether the file was sent,
received or downloaded.
- As
to internal metadata, computer files regularly store within them metadata that
records the time and date of the last modification
to the document (the Last
Modified timestamp) and the author of the document, amongst other things. This
metadata travels with the
document when it is emailed, copied or moved. Editing
and saving a document will generally update the Last Modified timestamp to
the
time and date the document was last saved.
- As
to external metadata, computer files generally have associated with them
metadata that records the time and date of creation (the
Creation timestamp) and
the time and date of the last modification of the file (the Last Modified
timestamp) amongst other things.
This metadata is wholly separate from the
internal metadata.
- The
value of the external Last Modified timestamp is dependent on the actions that
have occurred in the file’s history.
(a) In general, while a
file remains on a storage device, the Last Modified timestamp will not change,
unless the file has been modified
by the actions of a user or other process.
(b) When a file moves from one computer to the next using a storage device
such as a USB drive, or from one disk to another within
a computer, the Last
Modified timestamp travels with the file, such that the new copy retains the
same or nearly the same Last Modified
timestamp as the original. Likewise, when
a file is transferred within a ZIP file, the Last Modified timestamp usually
travels with
the file, however the precision of the new timestamp is
significantly less than the original.
(c) However, when a file is downloaded from the internet or detached from an
email, the Last Modified timestamp of the original file
does not travel with the
copy and the Last Modified timestamp is set to the time of the download or
detachment.
- Recent
versions of computers running Windows generally save documents downloaded from
websites (using a web browser like Chrome, Firefox
or Internet Explorer) in a
folder named “Downloads”, where the associated Last Modified
timestamp records when the file
was downloaded. When the web browser downloads a
file with the same name as a file that already exists in the
“Downloads”
folder, a new copy will be created with a file name
having a number in parentheses appended to the original file name. For example,
the first download of a file may have a file name “MER16_7457.pdf”
and the second download of the same file will be named
“MER16_7457
(1).pdf”. The content of the files is the same. The “Last Modified
timestamp” indicates when
the file was downloaded. The internal metadata
of the document may contain an earlier Last Modified timestamp which may
indicate,
for example, when the file was last edited by its creator or
publisher.
- In
digital forensics, metadata is analysed according to these principles to form
hypotheses regarding the history of particular files.
Context is valuable in
forming opinions on the meaning of the time and date stamps of specific files,
as is the content of the files.
Websites
- Computers
communicating on the Internet are uniquely identified by a unique internet
address called an Internet Protocol (IP) address.
IP addresses are to computers
as mobile phone numbers are to mobile phones. The defendant is an account holder
with Telstra. Telstra
allocated the IP address 121.209.47.66 to the username
shane-dowling@bigpond.com from 18 July 2016 until 12 May 2019. Dr Schatz
concludes that this IP address was assigned to the defendant’s Telstra
internet service.
- The
Domain Name System (DNS) enables the unique IP address of a computer to be
associated with a unique name (Domain Name), just as
a telephone directory
allows one to find the unique phone number associated with a person by name.
- To
publish a website, one requires content, an internet connected computer with an
IP address on which to host the content (a Webserver),
configuration of the
Webserver to display the content of the website when requested, a domain name
and configuration of the DNS such
that requests destined for the website go to
the IP address of the Webserver.
- The
content published on websites is under the control of the publisher of the
website and may change over time or wholly disappear
based on their actions. The
archive.org Wayback Machine is an internet archive service which makes copies of
websites, enabling one
to retrieve the snapshot content of the website from an
earlier point in time. The Wayback Machine does not archive copies of media
such
as pictures using webpages that it archives.
Blogs
- Web
logs (Blogs) are a category of website generally focussed on publishing articles
of a size smaller than a page. A single article
is referred to as a Post and
will generally be published on the Blog website in several locations such as the
main landing (homepage)
of the Blog website, along with other posts, for a time
after it is published. In addition, the Blog may appearing via a permanent
link
residing on its own exclusive page. The publisher of a website can delegate the
ability to post on that website.
- Operation
of a Blog generally requires the installation of Blog application software along
with Webserver software. Blog applications
assemble posts into various pages and
provide functionality to create, edit and delete posts using a simple word
processor-like means.
A commonly deployed Blog application is called Wordpress.
The makers of the Wordpress software offer a service at Wordpress.com which
outsources all of the technical aspects of running a Blog, enabling one to
create a Blog and edit posts with a minimum of technical
ability.
- When
publishing posts using the Wordpress.com service, the publishing date appears in
three places: the face of the Blog post, within
the Blog post as internal
metadata, and within the address of the Blog post. When publishing a
post using Wordpress.com, the author can backdate a post by choosing the
apparent time of publishing using the
“Choose a date to schedule”
date picker. When backdating Blog posts, all three publishing dates will be set
to the backdated
time and date. The actual time and date of publishing a
Blog may be ascertained in two ways. First, the internal metadata of the page
records the
actual time and date of publishing using the
“article:modified_time” metadata. However, this metadata is
updated whenever the article is modified and so cannot be used to conclusively
identify
backdated pages. Second, when creating a backdated Blog post that
includes uploaded photographs, traces of the actual month and year
of publishing
are automatically left in the addresses of the photographs.
- If
multiple people are using a computer, it makes it much more difficult to
ascertain who is responsible for a particular post, although
it is easier to
ascertain on a computer than where multiple persons have access to a website on
which blogs are posted. Although
two people could be logged into a computer at
the same time, you would see one person doing things while the other person was
not,
or one would be logged out from the computer while the other was operating.
Websites are more open to people accessing and working
in parallel. Dr
Schatz did have the possibility of multiple users in mind when performing his
analysis.
FACTS
- Much
of the evidence relied upon by the plaintiffs came from the Hard Drive. The
provenance of the Hard Drive should be considered
at the outset.
The Hard Drive
- The
defendant published articles on the internet from time to time, on a website
which he acknowledged is his. On 21 June 2017, the
NSW Police executed a search
warrant at the defendant’s apartment and took his computer. The plaintiffs
came to learn of this
fact from an article published by the defendant on his
website. On 5 July 2017, at the plaintiffs’ request, a subpoena was
issued
to the Commissioner of Police for production of the following
material:
1. Documents recording the results of any inspection or
analysis of the computers, hard drives, electronic devices or storage devices
obtained pursuant to a search warrant executed on the address [at] Bondi Beach
... on or around 21 June 2017.
2. Any computers, hard drives, electronic devices or storage
devices obtained by NSW Police, or copies of any of the information
found on
same made by NSW Police, as a result of the search warrant executed on the
address [at] Bondi Beach ... on or around 21
June 2017.
- The
Commissioner of Police produced a laptop and the Hard Drive to the Court in
answer to the subpoena. As described in Seven v Dowling [2018] at [13],
on 17 July 2017, the laptop was returned to the defendant. In his submissions,
the defendant said that he disposed
of the computer as he was concerned that it
may have been loaded with spyware or malware as it had been in the hands of
people about
whom he had written.
- That
left the Hard Drive. The journey of the plaintiffs’ efforts to obtain
access to the Hard Drive is charted in Seven v Dowling [2018] at
[10]-[46]. In short, the plaintiffs were initially given general access to the
Hard Drive by the registrar on 14 July 2017.
The plaintiffs arranged for the
Hard Drive to be uplifted and copied by approved copiers. Both the Hard Drive
and the copy were returned
to the Court on 17 July 2017, when McCallum J revoked
the general access order. There the Hard Drive stayed, until I made the
following
orders in Seven v Dowling [2018] on 7 December
2018:
3 Pursuant to Rule 31.54 of the Uniform Civil Procedure
Rules 2005 (NSW), appoint [independent solicitor] to provide assistance in
these proceedings as follows:
(a) uplift packet S-5 (the Hard Drive)
from the Exhibits Office;
(b) inspect the contents of the Hard Drive and identify any
records to which the defendant may be entitled to claim client legal
privilege
under section 118 or 119 of the Evidence Act 1995 (NSW);
(c) copy the records identified in (b) onto an electronic
storage device to be clearly labelled “Privileged Data: No access
is to be
granted without leave of the Court”;
(d) copy any remaining records on the Hard Drive to a second
electronic storage device to be clearly labelled “Available
Data: general
access pursuant to orders made on 7 December 2018”;
(e) return the Hard Drive to the Exhibits Office; and
(f) provide to the Court by 28 February
2019:
(i) the two electronic
storage devices described in (c) and (d); and
(ii) a report as to how the task described in this Order was
completed.
4 Grant the plaintiffs access to the electronic storage device
labelled “Available Data: general access pursuant to orders
made on 7
December 2018” on and from 1 March 2019.
- The
independent expert completed the task and provided the report on 28 February
2018, noting that examination of the Hard Drive revealed
5 privileged documents.
The independent expert made a copy of the non-privileged material. In March
2019, the plaintiffs obtained
access to the electronic storage device containing
a copy of the non-privileged material found on the Hard Drive. The term
“Hard
Drive” is used in this judgment hereafter to refer to the copy
of non-privileged material on the Hard Drive to which the plaintiffs
were given
access.
- The
defendant submitted that the Hard Drive had been handed over to the plaintiffs
in scandalous circumstances, which I take to be
a reference to my decision in
Seven v Dowling [2018]. Further, the Hard Drive should not be relied upon
as it was “severely tainted as half of Sydney had access to it”,
including officers of this Court against whom he had made allegations and who
had access to the Hard Drive for over a year before
the plaintiffs were given
access.
- Dr
Schatz agreed that anyone who had access to the Hard Drive with significant
technical ability had the ability to modify it. I do not doubt that, if a
person with such skills had accessed the Hard Drive whilst it languished in the
Exhibits Office before being
uplifted by the independent expert, then such a
person could have modified the Hard Drive. There is no evidence that
anyone did. Nor is there any indication in Dr Schatz’ report or oral
evidence that he detected any such modifications.
I do not draw any inference
against the defendant for failing to call evidence that the Hard Drive was
modified by a third party.
The onus of proof remains on the plaintiffs in all
respects. But I can only proceed on the basis of evidence before the Court,
which
is that the Hard Copy is a proper copy of the defendant’s documents
and files as at 21 June 2017, seized by the police when
executing a search
warrant at the defendant’s residence.
Employee
dispute
- In
July 2014, the plaintiffs had a dispute with an employee (the Employee).
In November 2014, following mediation, the plaintiffs and the Employee entered
into a Deed of Release, the terms of which were
confidential and included an
agreement by the Employee not to publish “Confidential Information”,
being a term defined
in the deed.
- It
appears that the Employee did not comply with the deed. As I understand it, the
Employee filed a complaint with the Australian
Human Rights Commission in
respect of her employment with the plaintiffs. The complaint alleged that other
women working for the
plaintiffs had also experienced the same behaviour about
which the Employee complained.
First Blog Content
- On
the Hard Drive is a JPEG file, being a photograph of two of the women referred
to in the Employee’s complaint to the Australian
Human Rights Commission
(First Blog Content). The First Blog Content has a Last Modified
timestamp of 10.14 pm on 20 December 2016 and was later used in the first Blog
Post
on the Website (First Blog Post): see [88(a)].
Jane Does proceedings
- On
21 December 2016, the defendant published an article on the internet which,
as I understand it, made similar allegations to those
contained in the
Employee’s complaint to the Australian Human Rights Commission. The same
day, the two women referred to in
the article – and photographed in the
First Blog Content – commenced defamation proceedings against the
defendant in
the Common Law Division of this Court. The women were permitted to
sue by the names “Jane Doe 1” and “Jane Doe
2” in order
to ensure that they would not suffer further damage through publicity that might
be given to the proceedings: Doe v Dowling [2019] NSWSC 1222 at [2] per
Fagan J. (Two further women were later added to the proceedings as “Jane
Doe 3” and “Jane Doe 4”.)
Second Blog
Content
- On
12 February 2017, two JPEG images were stored on the Hard Drive, being page 5
and page 6 of the Employee’s complaint to the
Australian Human Rights
Commission (Second Blog Content). These pages had two distinctive
formatting features: as the footer of the pages was partially cropped; and, grey
borders appeared
down the left and right side of each page. The Last Modified
timestamps of the two JPEG images were 1.43pm and 5.59pm on 12 February
2017
respectively. Dr Schatz says the Last Modified timestamps may be the times of
creation of the two screen shots, the time of
download of the screenshots from
an unknown third-party website or the time of detachment from an email.
- The
Second Blog Content later formed part of the First Blog Post: see [88(b)].
Employee proceedings
- On
13 February 2017, the plaintiffs commenced proceedings against the Employee
seeking orders restraining use of Confidential Information
in breach of the Deed
(Employee proceedings). On 13 February 2017, McDougall J made interim
orders restraining the Employee from using the Confidential
Information.
Third Blog Content
- On
the Hard Drive are five files dated from 17 February 2017 in which a composite
picture of Jane Doe 3 and Jane Doe 4 was compiled.
- First,
the Hard Drive has a JPEG file containing a photograph of Jane Doe 3, with a
Last Modified timestamp of 10.37 pm on 17 February
2017.
- Second,
the Hard Drive had a JPEG file containing a photograph of Jane Doe 4, with the
Last Modified timestamp of 10.38 pm on 17 February
2017.
- Third,
the Hard Drive had a JPEG file containing the two photographs referred to at [70]-[71] aligned side-by-side,
with a Last Modified timestamp of 10.46 pm on 17 February 2017. The file is
called “[Jane Doe 3 and
Jane Doe 4].jpg”.
- Fourth,
the Hard Drive has a Microsoft Publisher file entitled “[Jane Doe 3 and
Jane Doe 4].pub”, with the Last Modified
timestamp of 10.47.08pm on
17 February 2017. The internal Last Modified timestamp for the “[Jane
Doe 3 and Jane Doe 4].pub”
file was also 10.47.08 pm on 17 February 2017.
- The
internal Author metadata for the “[Jane Doe 3 and Jane Doe 4].pub”
file is “SHANE DOWLING”. Dr Schatz says that the internal
metadata “Author” field is generally set when a file is created,
based on the User Name
that a copy of Microsoft Office is personalised to. This
is generally set once and forgotten about but can be changed by the user.
- Dr
Schatz filtered the Word Excel and Publisher documents on the Hard Drive for
documents which had their “Author” or
“Last Author”
internal metadata as “SHANE DOWLING”. There were 769 such documents
on the Hard Drive. The
most straightforward explanation is that the documents
were authored on the defendant’s computer. Other possibilities include
that the documents were purposefully modified to reflect the defendant as the
author, or the documents are derivatives of wholly
different documents
authorised by the defendant.
- Fifth,
the Hard Drive has a JPEG file containing a photograph of Jane Doe 3 and a
photograph of Jane Doe 4, aligned side-by-side.
The file name is “[Jane
Doe 3 and Jane Doe 4] 2.jpg” (Third Blog Content). The Last
Modified timestamp of the Third Blog Content is 10.49 pm on 17 February 2017.
The Third Blog Content was used in the First
Blog Post: see [88(c)].
- Dr
Schatz regarded the internal and external Last Modified timestamps as equivalent
and best explained by the file having come into
existence on the computer from
which the Hard Drive is derived. Other less likely possibilities include
that the files were copied from a third-party hard drive with the same temporal
precision
characteristics, for example, an external NTFS formatted USB drive,
although external hard drives generally do not have this characteristic.
Or, the
files could have been transported to the computer via an unknown server that
accurately preserved timestamps of such precision.
Dr Schatz is not aware of any
generally used file transfer methods which are able to preserve such precision
when transferring files.
Based on the timestamps, Dr Schatz is of the opinion
that it is unlikely that this is consistent with a download.
- According
to Dr Schatz, the most straightforward interpretation of the timestamp for these
files in this context is the time at which
each picture or document was last
saved. The documents and timestamps are also consistent with the production of
the composite picture
from the individual photographs, using the program
Microsoft Publisher.
- Two
days later, on 19 February 2017, the defendant published an article on the
internet, which referred to Jane Doe 3 and Jane Doe
4. On 20 February 2017, the
defendant issued a Tweet in respect of the Employee proceedings. On 21
February 2017, McDougall J extended the interim orders and the defendant issued
a second Tweet on the subject.
On 21 February 2017, an amended statement of
claim was filed in the Jane Does proceedings, joining two additional plaintiffs
under
the pseudonyms Jane Doe 3 and Jane Doe 4: Doe v Dowling [2017]
NSWSC 1793 at [4]. A non-publication order was made in favour of Jane Doe 3 and
Jane Doe 4. An injunction was ordered restraining the defendant from
publishing
the 19 February 2017 article in any form which included the names of Jane
Doe 3 or Jane Doe 4, or any secondary article
in any form which included their
names: Doe v Dowling at [4].
- On
21 February 2017, two JPEG images were stored on the Hard Drive with Last
Modified timestamps of 10.36pm and 10.37pm respectively,
being page 5 and page 6
of the Employee’s complaint to the Australian Human Rights Commission. The
file name for each JPEG
was the same as for the Second Blog Content, with the
additional word, “cropped”. The grey borders are gone. Mr
Latu says the JPEG images have been stretched so that the partially cropped
footers are not visible.
On 22 February 2017, a Microsoft Word document
containing the defendant’s defence in the Jane Does proceedings was Last
Modified
at 11.23pm on the Hard Drive. The defence incorporated pages 5 and 6 of
the Australian Human Rights Commission complaint as “cropped”.
- On
23 February 2017, the defendant filed a defence in the Jane Does proceeding,
which incorporated pages 5 and 6 of the Australian
Human Rights Commission
complaint as “cropped”. (The defence on the Hard Drive is an
unsigned version of the defence
filed on 23 February 2017). The defendant
tweeted a copy of his defence, being a PDF file containing a scan of the sealed
defence.
The tweet contained a URL link to the defence. The first time Mr Latu
became aware that pages 5 and 6 from the Employee’s complaint
to the
Australian Human Rights Commission had been published online was when the
defendant tweeted a copy of his defence.
Fourth Blog
Content
- The
Hard Drive contains a JPEG image for a LinkedIn screen image with a Last
Modified timestamp of 9.02 pm on 23 February 2017 and
another JPEG for a Twitter
image with a Last Modified timestamp of 9.03 pm on 23 February 2017 (Fourth
Blog Content). The Fourth Blog Content concerned a television producer. The
Fourth Blog Content was later used in the second Blog Post on the
Website
(Second Blog Post): see [95].
The Website
- The
plaintiffs became aware of the Website, which contained commentary on the
Employee proceedings. The “About” section of the Website
indicated that the publisher was aware of the orders made by McDougall
J in the
Employee proceedings. The “About” page also provided a contact email
address, ending “gmx.com”.
- Mr
Keegan did a “whois” search on icann.org (ICANN is the Internet
Corporation for Assigned Names and Numbers). Dr Schatz
says such searches return
historical and current information related to the registration of domain names.
The search indicated that
the registrar of the domain name for the Website was
Automattic Inc, a web host based in the United States, and the domain name for
the Website was registered on 25 February 2017. Dr Schatz says it is likely that
the domain for the Website was created on or about
25 February 2017, assuming
the relevant registrars and information services were maintaining accurate
records.
- Mr
Latu agreed that he had never seen a receipt saying that the defendant owned the
Website, nor did Mr Latu expect to find a copy
of such a receipt on the Hard
Drive. He did not specifically look for a receipt, nor did he think it
was in “standard course” to look for a receipt to prove
ownership of
a website. Mr Latu considered the possibility of other persons owning the
Website “but no-one emerged to follow up on”.
- Dr Schatz
was not asked to look for a receipt, although he had looked for a receipt a
number of times in the past, “although
it is often very difficult to find
the operators of websites when they hide behind anonymising services.”
First Blog Post
- The
First Blog Post to appear on the Website was dated 6 January 2017, although the
domain name for the Website was not registered
until 25 February 2017 and, in Dr
Schatz’s experience, a website cannot generally be published to a website
address without
the domain in the website address first having been registered.
As noted at [53], it is
possible to backdate a post, and that is what happened here.
- Dr
Schatz found an archived copy of the First Blog Post using the archive.org
Wayback Machine. The internal metadata of the file contains
a Publication
timestamp of 6 January 2017 but an internal Last Modified timestamp of
10.12 pm on 27 February 2017. The First Blog
Post contains a title and a
single introductory sentence followed by:
(a) the First Blog
Content;
(b) the Second Blog Content; and
(c) the Third Blog Content.
- As
noted at [66], the Last
Modified timestamps on the Second Blog Content is after the apparent
publication time of the Blog post but before the Last Modified time of the First
Blog Post. Dr Schatz considered that
this supported a conclusion that the First
Blog Post had been backdated by the publisher. If the images were already
published to
the Website, it is also possible that they were downloaded from the
Website, however, this would require the party downloading the
pictures to have
named them differently to published file names.
- According
to Dr Schatz, the “[Jane Doe 3 and Jane Doe 4] 2.jpg” file appears
identical to the Third Blog Content, when
taking into account
Wordpress.com’s media renaming. The composite image of Jane Doe 3
and Jane Doe 4 is the only time of which Mr Latu is aware that the image has
been published online,
having made searches for the image elsewhere.
- Dr
Schatz has reviewed archived copies of the First Blog Post for references to the
pictures viewable in the screenshot copy. The
addresses for the pictures contain
embedded dates indicating that the First Blog Content was first uploaded to
Wordpress in January
2017, while the Second Blog Content and Third Blog Content
were first uploaded in February 2017. The differing upload dates for the
pictures is best explained, according to Dr Schatz, either by:
(a) the First Blog Post having been created on 6 January 2017 and
edited in February 2017 to add the Second Blog Content and the Third
Blog
Content;
(b) the First Blog Post having been backdated to appear to have been created
on 6 January 2017 at some time in January 2017, and edited
in February 2017 to
add the Second Blog Content and Third Blog Content;
(c) the First Blog Post having been backdated to appear to have been created
on 6 January 2017 by reusing a picture that was uploaded
in January 2017 and
then edited in February 2017 to add the remaining pictures.
- Dr
Schatz considers that the evidence does not conclusively support the First Blog
Post having existed on 6 January 2017, due to the
potential for backdating and
evidence of modification of the post. It is possible to create a blog on
Wordpress.com without publishing
via top level domain such as the Website. One
may use a sub-domain of Wordpress.com such as [Website].wordpress.com. It is
possible
that, prior to 25 February 2017, the First Blog Post existed as a
sub-domain-based blog, and was then published and publicly accessible
via the
Website on registration of the domain.
- Having
regard to the fact that the domain name for the Website was not registered until
25 February 2017 (before which the Website
could not be published to a website
address), the Second Blog Content was Last Modified on the Hard Drive on 12
February 2017, the
Third Blog Content was created on 17 February 2017, and the
internal Last Modified timestamp of the First Blog Post was 27 February
2017, I
consider it is much more likely that the First Blog Post was posted on or about
27 February 2017 and backdated. Whilst the
First Blog Content had a Last
Modified timestamp of 20 December 2016, being before the stated date of the
First Blog Post, this is
the only component of the First Blog Post which
pre-dated the stated publication date and was a photograph likely uploaded to
Wordpress
in January 2017 for use in publications in respect of Jane Doe 1 and
Jane Doe 2 other than the First Blog Post.
- The
plaintiffs submitted that the defendant had reason to create the misleading
impression that the blog was been published before
23 February 2017. The
defendant was aware of orders made in the Employee proceedings that limited the
ability of the obvious source
of the complaint to the Australian Human Rights
Commission – the Employee – to publish the document. The links
between
the Employee and the defendant’s website limited his ability to
publish it on his own website without creating difficulties
for the Employee.
Whilst this submission makes sense, the link between the Employee and the
defendant was not established by evidence
and so I have not taken this
suggestion into account.
Second Blog Post
- On
27 February 2017, the Website published the Second Blog Post, which was an
article concerning the Employee proceedings. In the
article, following the words
“Below are screenshots taken on the 23/2/2017”, are embedded images
of web search results
of LinkedIn and Twitter, being the Fourth Blog Content.
- The
Second Blog Post indicates that the article was published on 27 February 2017
and the address contains an embedded date of the
same date. Dr Schatz obtained
an archived copy of the page using the Archive.org Wayback Machine. The internal
metadata of the file
contained a Publication date of 11.51 pm on 27 February
2017 and an internal Last Modified timestamp of 12.19 am on 28 February 2017.
- The
addresses associated with the Fourth Blog Content bore the same file names as on
the Hard Drive when taking into account the naming
scheme applied by the Blog
provider, Wordpress.com. The Fourth Blog Content was captured on
23 February 2017, being the same date
as reflected on the Last Modified
timestamps of the two files found on the Hard Drive. The content of the files on
the Second Blog
Post and the Hard Drive appear exactly the same.
- The
Last Modified timestamps for the Fourth Blog Content are approximately four days
earlier than the Publishing date of the Second
Blog Post. Based on the
timestamps, the possible interpretations of the Last Modified timestamp include
the times of creation of
the two screen shots, the time of download of the
screenshots from an unknown third-party website, or the time of detachment from
an email.
- Whilst
Dr Schatz says it is possible that the Fourth Blog Content was downloaded from
the Second Blog Post, this would require the
party downloading the pictures to
have named them differently to published file names. In addition, the clock of
the computer on
which they were downloaded would have to have been at least four
days slow and, in his experience, modern internet-connected computers
generally
keep good time. I consider that it is far more likely that the Fourth Blog
Content came from the defendant’s computer.
- On
5 March 2017, the defendant published an article on the internet which was in
similar terms to the Second Blog Post.
Fifth Blog Content
- The
Hard Drive contains PNG images with a Last Modified timestamp of 7.35 am on
4 March 2017, with one image for each page of the
complaint to the Australian
Human Rights Commission from page 3 to page 29: the footers of each page are
partially cropped; there
are grey borders on each side of the page (Fifth
Blog Content).
- According
to Dr Schatz, the internal DateCreated metadata for each PNG file ranges from
8.29 pm to 8.34 pm on 3 March 2017. The internal
metadata also includes
“exif:UserComment: Screenshot”. In Dr Schatz’s opinion, the
DateCreated metadata is best
explained by the time of creation of each manual
snapshot from a source document. The Fifth Blog Content was used in the third
Blog
Post on the Website (Third Blog Post): see [104].
- The
Last Modified timestamps for the PNG files all fall between 7.35.29 am and
7.35.30 am on 4 March 2017. According to Dr Schatz,
the Last Modified timestamp
may refer to the time of downloading the screenshots from somewhere other than
the Website or the time
of detachment from an email.
Third Blog
Post
- On
5 March 2017, the Third Blog Post was published on the Website, containing pages
3 to 29 of the complaint to the Australian Human
Rights Commission, with the
footers of each page partially cropped and with grey borders on each side, that
is, the Fifth Blog Content.
Other than the Fifth Blog Content, the Third Blog
Post comprised a title and two introductory sentences identifying what
followed.
- While
it is possible that the Fifth Blog Content was downloaded from the Website, Dr
Schatz considers that, as the publication time
(being 1.18 pm on 5 March
2017) was after the hypothetical download time, this would require the party
downloading the pictures to
have named them differently to the published file
names, and the clock of the computer on which they were downloaded to have been
at least one day slow. According to Dr Schatz, the PNG files on the Hard
Drive appear to be identical to the images found on the Third Blog Post. The
file
names are consistent with the addresses of the pictures referenced by the
Third Blog Post. That is, the Fifth Blog Content most likely
came from the
defendant.
Fourth Blog Post
- On
10 March 2017, in the Jane Does proceedings, McCallum J heard applications by
Jane Doe 3 and Jane Doe 4 to continue the interlocutory
injunction against the
defendant until further order whilst the defendant sought a review of the
non-publication and pseudonym orders
given in favour of all Jane Does. As
McCallum J later noted in Doe v Dowling at [47]:
On the first day of the hearing before me, [the defendant] foreshadowed adducing
evidence that the continuation of the injunction
would be futile because the
allegations made in his articles are “all over the
internet”.
- On
16 March 2017, a blog was posted on the Website (the Fourth Blog Post)
which contained a photograph of Jane Doe 1 and Jane Doe 2, which was similar to
but not the same as the First Blog Content and appears
to have been taken on the
same occasion. There is no suggestion that this photograph was found on the Hard
Drive. However, the Fourth
Blog Post asserted that allegations concerning Jane
Doe 1 and Jane Doe 2 were “all over the internet”. Further, the
defendant
later included the Fourth Blog Post in his written submissions in the
Jane Doe proceedings, described as one of “my articles”:
see [147].
Complaint about domain name
- The
plaintiffs’ solicitors submitted a complaint to the World Intellectual
Property Organisation (WIPO) concerning the domain
name for the Website. The
name and contact details of the domain name registrar (the respondent to the
WIPO complaint) were protected
by an anonymisation service (privatewho.is) at
the time the complaint was made. The complaint was sent to only two email
addresses, being domain.disputes@wipo.int and icann@automattic.com, the latter being the domain name
registrar.
- On
22 March 2017, the WIPO case manager informed the plaintiffs that the
registrant’s contact details had been obtained from
the domain name
registrar. The registrant’s email address was that ending in
“gmx.com”, which also appeared on
the “About” page of
the Website: see [83].
The WIPO case manager’s email was copied to the “gmx.com”
email and to the anonymisation service, “privatewho.is”.
The
plaintiffs were invited to re-submit their complaint based on the registrant
information.
- On
27 March 2017 at 9.26 pm, Mr Keegan sent an email to the WIPO case manager
copied to the “gmx.com” and “privatewho.is”
email
addresses, attaching an amended complaint together with annexures.
Mr Keegan’s email and its attachments are on the Hard
Drive. The
“Downloads” folder contains a file entitled “message-rfc822-
attachment”. Dr Schatz says “rfc822”
is a standard
related to email and the content of the file is consistent with a received email
as it includes both email metadata
and attachments. The time and date of sending
the email is 9.26 pm on 27 March 2017, based on the internal metadata in the
email.
The Last Modified timestamp is 12.14 am on 28 March 2017, less than
three hours later. The discrepancy between the dates is due to
daylight
saving.
- The
plaintiffs provided Dr Schatz with a copy of the email and attachments, from Mr
Keegan’s records, which Dr Schatz has compared
with the email and
attachments found on the Hard Drive. The body of the email, the attachments and
all fields compared were materially
the same with the exception of the
MessageID. Dr Schatz concluded that the copy supplied by Mr Keegan was the
sender’s version
and the email found on the Hard Drive was a
recipient’s version of the same email.
- On
29 March 2017 at 7.34 pm, the plaintiffs’ solicitor received a response
from the WIPO case manager, copied to the “gmx.com”
and
“privatewho.is” email addresses only. The email attached three PDFs:
a Notification of Complaint, the Complaint and
the Amended Complaint. Two of
these documents, being the Notification of Complaint and the Complaint, are on
the Hard Drive in the
“Downloads” folder. Dr Schatz has compared the
files, which are “exactly the same”. The Last Modified
timestamp of the Notification of Complaint on the Hard Drive is 8.17 pm on 29
March 2017, being approximately 44
minutes after the email was sent. The Last
Modified timestamp of the Complaint on the Hard Drive is 8.18 pm on 29 March
2017, being
approximately 45 minutes after the email was sent. In Dr
Schatz’s opinion, the Last Modified timestamps are likely to correspond
to
either the time the attachment was downloaded to the computer from Webmail or
the time the attachment was detached from the email
and saved to the
computer.
- On
17 April 2017, at 6.45 pm and 9.31 pm, WIPO received two emails in response to
the plaintiffs’ complaint concerning the domain
name, “the first
containing a number of spelling errors and the second being a (partially)
corrected version of the first –
from a ‘Ron McDonald’,
stating: ‘I would like you to dismiss the complaint against my website
name for being frivolous.
...’”
Sixth Blog
Content
- The
landing page of the Website had a composite picture of two people as a thumbnail
image for an article dated 17 April 2017, that
date being overlaid over the
composite image (Sixth Blog Content).
- The
Sixth Blog Content is on the Hard Drive. It is a Microsoft Publisher file, with
a Last Modified timestamp of 5.05 pm on 17 April
2017. The document properties
include “Author: SHANE DOWLING”. The Sixth Blog Content as
appearing on the Website is the only time of which Mr Latu is aware that the
image has been published online,
having made searches for the image elsewhere.
- Dr
Schatz says the internal Last Modified timestamp of the Sixth Blog Content is
5.05.55 pm on 17 April 2017 and, for the same reasons
expressed in relation to
the Third Blog Content, Dr Schatz is of the view that it is unlikely that the
timestamps are consistent
with the image having been downloaded by the defendant
but rather that the composite image was created on the defendant’s
computer.
Fifth Blog Post
- On
14 April 2017, the defendant sent an email to the plaintiffs’ directors
and solicitors posing various questions about the
content of text messages
relating to the Employee (the Original Email). The text messages are said
to contain Confidential Information.
- On
17 April 2017, the defendant published a screenshot of a version of the
14 April 2017 email via Twitter (the Tweeted Email). On the Hard
Drive is a JPEG file “SWM email 14-4-17.jpg” which, according to
Dr Schatz, appears exactly the same in
appearance to the screenshot in the
Tweet. Similarities in appearance go beyond the textual content; what appears to
be red underlining
associated with spelling or grammar correction appears to be
exactly the same in both. The Last Modified timestamp of the JPEG file
is 10.57
am on 17 April 2017, being six minutes before the Tweet was published.
- On
17 April 2017, a Blog was posted on the Website (the Fifth Blog Post).
The Fifth Blog Post referred to the text messages and “the below
email which was Tweeted” by the defendant. Dr Schatz
found an archived
copy of the page using the archive.org Wayback Machine. The internal metadata of
the file contains a Publication
timestamp of 5.34 pm on 17 April 2017 and a Last
Modified timestamp of 10.21 pm on 17 April 2017.
- The
Fifth Blog Post contains an email which appears to be a near exact copy of the
Original Email and Tweeted Email. The key differences
between the emails
are:
(a) The “From:” header on the first line of the
Original Email includes the defendant’s email address, whilst the
email as
it appears in the Fifth Blog Post contains the defendant’s name but not
his email address.
(b) In the Original Email, the size of font used in the “From:”,
“Send:”, “To:”, “Cc:”
and
“Subject:” fields is smaller than in the body of the email whilst,
in the email appearing in the Fifth Blog Post,
the font size is the same
throughout. The font in the Fifth Blog Post is also italicised.
(c) Whilst the Tweeted Email is a picture, the email appearing in the Fifth
Blog Post is a letter-by-letter copy of the text in the
Original Email.
(d) The Tweeted Email does not include any information related to the
defendant’s website, while the email in the Fifth Blog
Post contains a
hyperlink to the defendant’s website.
- In
Dr Schatz’s opinion, the most straightforward means of production of the
email appearing in the Fifth Blog Post would be
to cut and paste the Original
Email if it were available to the creator of the Fifth Blog Post. The email
contained in the Fifth
Blog Post could have been produced from a picture version
of the email by manually transcribing, letter-by-letter (including punctuation)
the content, but this would also require knowledge of the presence of the
underlying link to the defendant’s website.
- Dr
Schatz agreed that the text could have been cut and paste from any computer.
He was not aware of everyone who had received the Original Email, “It
depends on who has forwarded it where”. Dr Schatz agreed that
it was possible that the plaintiffs’ solicitors could have posted the
Fifth Blog Post:
I suppose what I would say to that suggestion is the - the starting point of any
analysis that I do is that I look at all of the
possibilities, and that's what I
mean by saying, "It's possible, I suppose”.
...
But for that to happen, there would be traces that would be left behind on
digital evidence that would either support it or discount
it?
- As
to whether it was the defendant who published the Fifth Blog Post, Dr Schatz
agreed that one of the hardest questions in computer
forensics is knowing who
was sitting in front of the computer when documents were prepared and files
created, as computers can be
shared by people and people can access computers
remotely. Dr Schatz was not able to say beyond all reasonable doubt who was
sitting
in front of the computer when the data was entered based on the data he
had been given, “And I think that in essence that’s
... something
that the Court is going to have to come up with an opinion for, given the
evidence that I’ve put forward.”
- On
18 April 2017, the plaintiffs became aware of the Fifth Blog Post. Given the
nature and timing of the material contained in the
Original Email, the Tweeted
Email and the Fifth Blog Post, the plaintiffs believed that the Fifth Blog Post
had been authored and
published by or at the direction of the defendant. The
information referred to in the Tweeted Email and the Fifth Blog Post had not
been published by any media outlet in Australia. The plaintiffs were concerned
to prevent any further or continued publication in
breach of the orders of
McDougall J.
- At
2.46 pm on 18 April 2017, Mr Keegan sent an email to the defendant demanding
removal of the Tweet. At 9.11 pm on 18 April 2017,
the defendant advised that he
had deleted the Tweet. In addition, Mr Keegan sent an email to the
“gmx.com” email address,
attaching copies of McDougall’s
orders made on 13 February 2017 and 21 February 2017. Mr Keegan advised that
publication of
the information in the Fifth Blog Post was publication of
Confidential Information and demanded that the Fifth Blog Post be removed,
failing which legal proceedings would be commenced on an urgent basis.
There was no response to the “gmx.com” email.
These proceedings
- On
19 April 2017, the plaintiffs commenced these proceedings against the publisher
of the Website, seeking an order restraining the
use or disclosure of text
messages and the contents of the Fifth Blog Post, and an order to remove the
Fifth Blog Post from the Website.
At this time, the publisher of the Website had
not been ascertained with any certainty and was simply referred to in the
pleadings
and orders as “Publisher X”. The Orders were made by
Ward CJ in Eq, restraining the publisher of the Website from using
or disclosing
the confidential information and ordering the removal of the Fifth Blog Post
from the Website. In addition to the
Orders reproduced at [30], her Honour made the
following order:
9 The summons, orders and supporting material to be served on
the defendant, by email at the email address [ending “gmx.com”]
by
6pm on Wednesday, 19 April 2017.
- The
Orders concluded:
If The Publisher, [the Website] disobeys paragraph 4, 5, 6 or 7 of this order,
then The Publisher, [the Website] and its directors
will be liable to
sequestration of property and the said directors to imprisonment.
Service of Orders
- At
1.14 pm on 19 April 2017, Mr Keegan sent an email to the “gmx.com”
address attaching the summons, motion, orders and
Mr Keegan’s affidavit of
19 April 2017, noting that orders had been made requiring immediate removal of
the Fifth Blog Post.
It was not removed.
- On
22 April 2017, the defendant published a Tweet which Mr Keegan considered
breached the Orders. On 24 April 2017, Mr Keegan sent
an email to the defendant
informing him accordingly, to which the defendant replied on 25 April
2017:
I am not a party to the proceedings that you refer to nor am I in receipt of the
court orders you mention. Can you please supply
me with a copy of the court
orders and advise which court order I have breached given I am not even involved
in the matter?
...
Why you have not sent me the court orders this time to verify your claims is
rather odd to say the least.
The Orders were duly supplied on 26
April 2017 by an email from Mr Keegan to the defendant directly.
- The
defendant submitted that he was not properly served with the Orders as there was
no service of a signed hard copy of the court
orders with the court’s
official seal. Emailing the orders was not proper service. Nor was he named as a
defendant when served.
- Rule
10.14 of the Uniform Civil Procedure Rules 2005 (NSW)
provides:
Substituted and informal service generally
(1) If a document that is required or permitted to be served on
a person in connection with any proceedings—
(a) cannot practicably be served on the
person, or
(b) cannot practicably be served on the person in the manner
provided by law,
the court may, by order, direct that, instead of service, such steps be taken as
are specified in the order for the purpose of bringing
the document to the
notice of the person concerned.
(2) An order under this rule may direct that the document be
taken to have been served on the person concerned on the happening
of a
specified event or on the expiry of a specified time.
...
(3A) An application for an order under this rule must be
supported by an affidavit by the applicant that includes—
(a) a statement as to the applicant's
knowledge of the whereabouts of the person to be served, and
(b) a statement as to any communications that have occurred
between the applicant and the person to be served since the cause
of action in
the proceedings arose (including any communications by telephone, fax or
electronic mail).
(4) Service in accordance with this rule is taken to constitute
personal service.
- The
plaintiffs’ application to Ward CJ in Eq for the Orders included an order
for substituted service, supported by an affidavit
complying with rule
10.14(3A). Her Honour made an order for substituted service. The Orders,
together with supporting material, was served in accordance with order
9 made on
19 April 2017 to the email address associated with the Website, being the email
ending “@gmx.com”. The defendant
was served in accordance with the
order for substituted service, and thus the defendant, then named
“Publisher X”, is
taken to have been personally served: rule
10.14(4). The Orders were in the proper form issued by the Court; the absence of
a seal does not prevent service having taken place.
- In
addition, the defendant requested, and was provided with, the Orders on 26 April
2017 to an email address used by the defendant.
By this means, the Orders were
brought to the notice of the defendant. As will be seen, service of the Orders
in accordance with
the orders for substituted service also brought the Orders to
the defendant’s notice.
Tracking email
- There
is a way to identify the IP address associated with anonymised online
identities. A tracking code may be embedded in emails. The tracking code
sends a response and notification when the email is opened, read or
forwarded.
This tracking code notifies details such as the duration of time that an email
was opened for, the IP address of the device
used to open the email, and the
suburb or city the email was opened in.
- Mr
Keegan sent an email to the “gmx.com” email address that contained a
tracking code which would send notifications upon
the opening, forwarding or
reading of the email. On 10 May 2017, Mr Keegan received a notification that the
email was opened for
the first and only time by a person able to operate the
account associated with the “gmx.com” address. The notification
indicated that it was opened using a device assigned the IP address
121.209.47.66, being the IP address allocated by Telstra to the
defendant: see
[47].
- Dr
Schatz has reviewed Telstra’s IP records and the IP tracking record
produced by Mr Keegan and concludes that the email sent
by Mr Keegan to the
“gmx.com” email was opened from a computer associated with the IP
address of the defendant on 10
May 2017. Based on documents produced by Telstra
in answer to a subpoena, Dr Schatz says that it appears that the IP address was
associated with a Telstra cable broadband service, generally associated with a
single residence. Within the residence, the assigned
IP address is generally
shared across multiple devices by the residents.
Decision on domain name complaint
- On
14 June 2017 at 5.24 pm, the plaintiffs’ solicitors received an email from
the WIPO case manager, copied to the “gmx.com”
and
“privatewho.is” email addresses, attaching two PDFs, a Decision and
Annex to Decision. WIPO concluded, on the balance
of probabilities and for the
purposes of the complaint only, that the defendant was the person responsible
for the registration of
the disputed domain name, and responsible for the
written submissions made in the name “Ron McDonald”. WIPO
ordered that the disputed domain name be transferred to the plaintiffs.
- The
defendant submitted that WIPO’s report should be rejected as biased and
indicating collusion with the plaintiffs. The relevance
of WIPO’s decision
is not the conclusion reached, to which I pay no regard, but the fact that the
Decision is on the Hard Drive,
in a unique form not widely available. The
Decision, as attached to WIPO’s email of 14 June 2017 comprised seven
pages and
was signed. So far as the plaintiffs are aware, the signed Decision
was only published to the plaintiffs and the other email recipients
“gmx.com” and “privatewho.is”. A copy of the Decision is
published online by WIPO and a related webpage,
but the decision as it appears
on those websites is in a different format and unsigned.
- The
signed Decision is on the Hard Drive in two locations. First, the
“Downloads” folder contains a file with the same
file name as the
attachment to WIPO’s email. Dr Schatz has compared the email attachment
and the version in the Downloads folder,
“The files are exactly the
same”. The internal Last Modified timestamp on the file is 4.54 pm
on 14 June 2017. The Last Modified timestamp of the file on the Hard
Drive is
6.35 pm on 14 June 2017, being 71 minutes after the email was sent.
- Second,
within the “Downloads” folder on the Hard Drive is a ZIP folder,
“WIPO – Decision D2017-0498-signed.zip”.
Within the ZIP folder
are seven JPEG images, one for each page of the signed Decision. Dr Schatz says
that each of these picture
files appears to be an exact copy of the
corresponding page of the PDF file. In his experience, while PDF files are
generally the
format of choice for sharing documents via email, they are
unsuitable for publishing within web pages, where the format of choice
is
picture files such as JPEG and PNG. ZIP containers are regularly used to package
together sets of related files for sharing, emailing
and publishing. The
Last Modified timestamp stored within each of these JPEG files ranges between
8.32.34 pm to 8.32.37 pm on 14 June 2017. The Last
Modified timestamp associated
with the ZIP container is 8.32.53 pm on 14 June 2017.
- In
Dr Schatz’s opinion, the Last Modified timestamps of the JPEG files are
likely the time of creation of each file through
an automated process. As the
ZIP file which contains the JPEG snapshots has a Last Modified timestamp 24
seconds after the JPEG files,
in Dr Schatz’ opinion, the Last Modified
timestamp is either the time of creation of the ZIP file or download of the ZIP
file.
- It
was also apparent that the WIPO officer contacted the defendant directly. During
closing submissions, the defendant submitted:
Just on that, that WIPO guy actually contacted me, and he ended up handing down
a judgment - I didn't contact me; he contacted me.
So he got all me
details. ... - and I gave a mouthful, and he ended up handing down a
judgment, "Mr Dowling didn't deny it, so
he must be the owner." Well, I
didn't deny, but I just basically told him to piss off when he contacted me.
He's thinking he's a judge. He thinks he can run around and say, "Look,
I'm contacting you. Here's the allegation. Answer the
questions." Who is this arsehole?
Second
Website
- On
the same day as WIPO’s decision, a second website was created, using a
similar domain name (the Second Website). The registrant was, again,
Private Whois. The registrar was, again, Automattic Inc. The Second Website
contains the same information
in the “About” page as was contained
on the Website. The Fifth Blog Post was published on the Second Website. On a
number
of occasions since 15 June 2017, Mr Keegan has typed in the address of
the Website into a browser and been automatically re-directed
to the Second
Website. Mr Latu has had the same experience.
- At
about the time that the Second Website was made available, a new article
appeared on the Second Website which included the seven-page
signed WIPO
decision. Based on a screenshot of the Second Website’s landing page, the
article was published on 14 June 2017. The article
published the signed copy of
the WIPO decision, both by way of hyperlink (“Click here for a PDF
version”) and embedded
in the article itself. As mentioned, there
are few places where a signed copy of the WIPO decision can be found, and one of
them is on the Hard Drive.
- On
22 June 2017, Mr Keegan sent an email to the defendant in relation to these
proceedings, advising that the matter was listed before
the Duty Judge on 23
June 2017 and attaching proposed orders. “You will note that it is sought
now to name you explicitly as
the defendant in this proceeding.” The
defendant replied, “I do not own the website which I am sure you
know.”
The defendant referred to the fact that the plaintiffs now owned
the domain name, presumably because WIPO had ordered that the disputed
domain
name be transferred, albeit this was not achieved until several days after the
defendant’s email. On 23 June 2017, Slattery J granted leave to
amend the Summons to refer to the defendant by name, instead of “Publisher
X”.
On 27 June 2017, the formalities of the domain name transfer for the
Website were concluded and the Website was configured to no
longer publish the
contentious publications, nor re-direct to the Second Website.
- As
already mentioned, the plaintiffs came to learn that NSW Police had executed a
search warrant at the defendant’s apartment
and issued a subpoena to the
Commissioner of Police, who produced the defendant’s laptop and Hard Drive
to the Court. On 17
July 2017, the laptop was returned to the defendant, which
he apparently disposed of. On about 20 July 2017, material ceased to be
published on the Second Website.
- On
21 July 2017, the defendant put on written submissions in the Jane Does
proceeding, where he submitted that the plaintiffs “have
copied 2 of my
articles on [Jane Doe 1 and Jane Doe 2] as per below”. Extracts from three
articles were then set out, of which
one was The Australian Financial
Review. Of the two remaining articles extracted, one was the Fourth Blog
Post. The plaintiffs rely on this as an admission by the defendant
that the
Fourth Blog Post was one of “my articles”.
- On
27 September 2017, the plaintiffs’ solicitors accidentally published a
website containing an article about the plaintiffs
and the Employee. Mr Keegan
said the page was set up by a law clerk doing some work on how Go Fund Me pages
work, being an internal
piece of work done within the law firm to try and
understand how the platform worked, under what circumstances donations were
made,
and the terms and conditions under which people were donating money. The
law clerk cut and pasted certain material from the Employee’s
Go Fund Me
page and, accidentally, the page went live. The website was removed
immediately.
- Mr
Latu said that he became aware of this in a matter of days, by which time the Go
Fund Me page had been taken down. As Mr Keegan remembered it, Mr Latu
gave instructions to the law clerk for the work to be done, “I think it
was [Mr Latu].
I don’t know, but I think it was Alex that actually
spoke to the clerk about the task.”
- The
defendant submitted that the evidence of Mr Keegan and Mr Latu should be
rejected given their inconsistent evidence about the
Go Fund Me page. Further,
it was submitted that the fact that the plaintiffs’ solicitors set up a
fake Go Fund Me page should
lead the Court to consider that they may also have
set up the Website.
- I
am not overly troubled by Mr Latu and Mr Keegan’s evidence on this
subject. Mr Keegan did not know, but thought, that Mr Latu
instructed the clerk
to set up a Go Fund Me page, whilst Mr Latu said he only became aware of the Go
Fund Me page after it had been
taken down. There is no inconsistency: Mr Keegan
did not pretend to know who had instructed the clerk and what he thought was, in
fact, incorrect. Nor does the fact that the plaintiffs’ solicitors set up
a Go Fund Me page lead to an available inference
that the plaintiffs’
solicitors set up the Website.
CONSIDERATION
- The
defendant submitted that, as the plaintiffs have owned the Website since the
determination of the WIPO dispute, the plaintiffs
were suing themselves and the
proceedings were an abuse of process. The defendant submitted that the case was
circumstantial and
depended on the Hard Drive, which should not be relied upon
(I have considered this submission at [56]-[61]). The fact that material in relation to the Jane Does
was found on the Hard Drive was said to be unsurprising in circumstances where
this was potential evidence for him to use in defending the Jane Does proceeding
(this submission may not be easily reconciled with
the preceding submission that
the contents of the Hard Drive had been modified by others).
- The
defendant submitted that the plaintiffs had not proved their case to the
requisite standard, noting that Dr Schatz did not believe
beyond a reasonable
doubt that the defendant was the one in front of the computer uploading and
managing the Website. Nor did Dr
Schatz look for a receipt to prove ownership of
the Website.
- The
defendant submitted that the fact that someone other than the defendant
published at least one article on the defendant’s
website whilst he was in
gaol showed that other people had access to his accounts and his computer. The
plaintiffs replied that,
whilst it was admitted that there was at least one
article posted on the defendant’s website when the defendant was in goal,
this suggests that the defendant provided some other person with the means to do
so at that time and for that purpose. The fact that
a person may have had access
to the defendant’s website in late 2017 led to no conclusion that any
other person had access
to the Website in April to June 2017. Whilst the
defendant might have authorised such posting because of his gaoling, this said
nothing
about the prior period when he was at liberty. In any event, the
contempt alleged was a failure to take down a particular post from
the Website.
If the defendant was the publisher of the Website, it scarcely mattered if some
other person had power to post on it.
Defendant was the
publisher
- The
central issue is whether the defendant was, at the relevant times, the publisher
of the Website. Where an alleged contempt involves
publication, R v Hinch
[2013] VSC 520 explains at [53]-[54]: (emphasis added)
[53] In the context of the law of contempt, an article, which
appears on the internet, is regarded as being published during the period in
which the person responsible for maintaining the article on the internet makes
the information, contained in
the article, available on the internet.
...
[54] For that reason, it is accepted that, for the purpose of
the law of contempt, publication of material on the internet is considered
to be
a continuing act, so that the person responsible for maintaining the matter
on the internet is considered to thereby publish it for so long as the material
is available for access by the public on the internet.
- It
was unnecessary to prove that any third party in fact read the offending
publication: Doe v Dowling [2017] NSWSC 202 at [50] per Harrison J,
citing The Queen v Hinch at [53]-[54]; News Digital Media Pty Ltd v
Mokbel (2010) 30 VR 248; [2010] VSCA 51 and Fairfax Digital Australia
& New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at
[43].
- My
factual findings in respect of this evidence are set out in detail at [64]-[151], which enables me to
now be brief. There are four categories of evidence which point to the defendant
being the publisher of the
Website (and a further category which points to him
being the publisher of the Second Website).
Content for
blogs
- Blogs
posted on the Website contained content found on the Hard Drive, which contained
the defendant’s documents and files.
In most cases, this content was not
readily available elsewhere. The file names of the content establish that the
content was uploaded
from the defendant’s computer to the Website rather
than downloaded from the Website to his computer. This points to the defendant
as providing content to the publisher of the blogs, or indeed being the
publisher.
- There
were six items of content. The First Blog Content and Second Blog Content were
on the Hard Drive. The fact that the images
in the Second Blog Content (pages 5
and 6 from the Employee’s complaint to the Australian Human Rights
Commission) were first
published online when the defendant tweeted a copy of his
defence in the Jane Doe proceedings, with a “cropped” version
of the
Second Blog Content (see [80]), indicates that these images were not readily
available.
- The
Third Blog Content was not only on the Hard Drive but was also brought into
existence on the defendant’s computer using Microsoft Publisher to
combine two JPEG files before creating a composite photograph in a
JPEG file
which formed part of the First Blog Post. According to the internal Author
metadata, the defendant was the author of the Microsoft Publisher file.
The fact that this composite image of Jane Doe 3 and Jane Doe 4 has only been
seen on the Website
(see [90]) is also consistent with the defendant having created
the composite image rather than having obtained it from another source.
- The
Fourth Blog Content and Fifth Blog Content were on the Hard Drive.
- The
Sixth Blog Content is a unique image not found elsewhere on the internet which
was created on the defendant’s computer,
with document properties
including “Author: SHANE DOWLING”. It was published on the Website,
rather than downloaded by
the defendant from the internet. This is consistent
with the defendant publishing content on the Website, either as a provider of
content or, more likely, the publisher of the Website, noting that the Sixth
Blog Content is an image used on the landing page of
the Website rather than as
part of any blog posted on the Website.
Author of blogs
- The
First Blog Post comprised a title, one sentence, then the First Blog Content,
the Second Blog Content and the Third Blog Content.
The fact that the First Blog
Post almost entirely comprised content from the defendant’s computer
points to the defendant also
being the author of the First Blog Post, entitled
to publish on the Website either because he was the publisher of the Website or
had permission from the publisher to post.
- The
fact that the Third Blog Post almost entirely comprised the Fifth Blog Content
also points to the defendant being the author of
the Third Blog Post.
- The
defendant published articles on the internet and made submissions to McCallum J
in the same or similar terms to posts on the Website:
see [100] and [106]-[107], suggesting he
authored the posts. Consistent with this, the defendant included the Fourth Blog
Post in his written submissions
in the Jane Doe proceedings, described as one of
“my articles”.
- The
Fifth Blog Post contained a near exact copy of the Original Email and Tweeted
Email, both emails having emanated from the defendant.
The most obvious means
of production of the email in the Fifth Blog Post was to cut and paste the
Original Email, which was readily
available to the defendant. No other media
outlet published the information. This points strongly to the defendant as the
author
of the Fifth Blog Post.
Exclusive communications with
WIPO
- The
plaintiffs’ amended complaint to WIPO, being an email and attachments, was
sent to only two email addresses, including the
email ending in
“gmx.com”, being the registrant’s contact details as
ascertained by the WIPO case manager and also
the contact email address
appearing on the home page of Website. The email and attachments were on the
defendant’s computer,
being a recipient’s version of the
plaintiffs’ email. This is consistent with the defendant being the
registrant of the
Website.
- Likewise,
documents sent by WIPO on 29 March 2017 to the plaintiffs, the
“gmx.com” and “privatewho.is” emails
addresses also
appear on the Hard Drive, having been downloaded to the computer from Webmail or
detached from WIPO’s email
and saved to the computer.
- The
fact that the signed WIPO Decision is found on the Hard Drive when it was only
circulated in that format to three recipients points
to the defendant as the
registrant of the domain name for the Website and thus the publisher of the
offending articles. Consistently
with the defendant being the registrant of the
Website, the defendant admitted in closing oral submissions that the WIPO
officer
had contacted him: see [142].
Tracking email
- The
fact that the defendant operated the account associated with the
“gmx.com” email address – being the registrant
of the Website
– was put beyond doubt when, on 10 May 2017, an email sent by Mr Keegan to
the “gmx.com” email address
that contained a tracking code sent a
notification that the email was open for the first and only time using a device
assigned to
the IP address allocated by Telstra to the defendant.
- The
plaintiffs’ evidence was circumstantial, as they called no witness
who had seen the defendant establishing or operating the Website. That
does not mean that the plaintiffs cannot discharge the burden of proof
by such
evidence. As McHugh J observed in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
at 589 and 592-3; [1990] HCA 56:
As Lord Simon of Glaisdale pointed out in R v Kilbourne [1973] AC 729 at
758:
Circumstantial evidence ... works by cumulatively, in
geometrical progression, eliminating other
possibilities.
... Ordinarily, in a circumstantial evidence case, guilt is inferred from a
number of circumstances — often numerous —
which taken as a whole
eliminate the hypothesis of innocence. The cogency of the inference of guilt is
derived from the cumulative
weight of circumstances, not the quality of proof of
each circumstance.
- The
combined effect of these four categories of evidence is explicable in only one
way: the defendant was the publisher of the Website.
Whilst this evidence is
circumstantial, it is also substantial and cumulatively eliminates the
hypothesis of the defendant’s
innocence. Having regard to this evidence, I
find that, from the time of the Website’s creation, the defendant was
responsible
for maintaining the Website and the material published on the
Website.
- Proof
beyond reasonable doubt does not require proof beyond all doubt. The test
remains reasonable doubt, not any doubt at all: R v Dookheea (2017) 262
CLR 402; [2017] HCA 36 at [34], citing R v Chatzidimitriou (2000) 1 VR
493; [2000] VSCA 91 at [11]. As to reasonable doubt, “fantastic and unreal
possibilities ought not to be regarded ... as the source of reasonable
doubt”:
Green v The Queen (1971) 126 CLR 28; [1971] HCA 55 per
Barwick CJ, McTiernan and Owen JJ at 33. It is for the plaintiffs to prove the
allegations to this standard. I am satisfied that
the plaintiffs have done so.
The defendant’s submission that the plaintiffs or its solicitors or an
unknown third party set
up the Website is a possibility but one that can only be
described as fantastic and unreal.
Second Website
- On
the very same day as WIPO’s decision – ordering that the domain name
for the Website be transferred to the plaintiffs
– the Second Website was
created, using the same registrant and registrar as the Website. WIPO’s
decision immediately
appeared on the Second Website, being in a format available
to few, one of them being the defendant as registrant of the Website.
Both the
timing of the creation of the Second Website (being the same day as the WIPO
decision) and the publication of WIPO’s
decision on the Second Website
link the defendant to the Second Website and I find that the defendant was the
publisher of the Second
Website too.
Criminal contempt
- The
defendant is charged with criminal contempt. Drawing on my judgment in In the
matter of Jimmy’s Recipe Pty Ltd [2020] NSWSC 93, as Ward CJ in Eq
noted in Furlong v Wise & Young [2019] NSWSC 1718 at
[94]- [95]:
94 The distinction between civil and criminal contempt is
described in general terms in Witham v Holloway (1995) 183 CLR
525 at 530; [1995] HCA 3 (Witham v Holloway) as being:
... a civil contempt involves disobedience to a court
order or breach of an undertaking in civil proceedings, whereas a criminal
contempt
is committed either where there is a contempt in the face of the court
or there is an interference with the course of
justice.
95 Criminal contempt includes contumacious disobedience to the
court’s order that exhibits defiance of the court (see Cohen v
Double Bay Bowling Club [2019] NSWSC 1625, where Henry J noted (at
[202]) that traditionally a criminal contempt is committed where, inter
alia, a prima facie civil contempt involves deliberate defiance or is
contumacious (citing Witham v Holloway at
530; Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR
483 at 489; [1965] HCA 21); and see her Honour’s reasons at
[203]).
- As
to the requisite mens rea for criminal contempt, it was sufficient for
the court to be satisfied that “the acts of the alleged contemnor were
intentional
and were calculated to interfere with the course of justice”:
Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322 per Brereton J at
[38].
- Garling
J summarised the relevant principles in Commonwealth Bank of Australia v
Salvato (No 4) [2013] NSWSC 321 at [126]- [130]:
126 It is convenient if I set out the principles relating to
contempt of court, which I understand I am bound to apply:
(a) Regardless of whether these
proceedings are categorised in the historical sense, as criminal or civil
contempt, it is clear
that the charge must be proved beyond reasonable doubt:
Witham at 529;
(b) A contempt of court can be constituted by the breach of an
undertaking as well as by breach of an order of the court: Trade Practices
Commission v C G Smith Pty Ltd [1978] FCA 2; (1978) 30 FLR 368; at [375]; Spindler v
Balog (1959) 76 WN (NSW) 391; Circuit Finance Australia v Sobbi
[2010] NSWSC 789 at [10];
...
(d) A person cannot be found guilty of a contempt of court for
breach of an order or an undertaking where the terms of the undertaking
are
ambiguous: Australian Consolidated Press Ltd v Morgan [1965] HCA 21;
(1965) 112 CLR 483 at 515-6 per Owen J. The ambiguity must be such that it
cannot be said what it was that required compliance: Pang v Bydand Holdings
Pty Ltd [2011] NSWCA 69 at [56]- [57] per Beazley JA;
...
127 Where the contempt of court consists of a failure to comply
with an order of the court (or an undertaking), it must be demonstrated
that the
contempt was wilful and not merely casual, accidental or unintentional:
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd
[1986] HCA 46; (1986) 161 CLR 98. However, it is not necessary for the applicant
to prove that the contemnor intended to breach an order of (or an undertaking
to)
the court: see Anderson v Hassett [2007] NSWSC 1310;
Mudginberri at 111; Matthews at [16] per Tobias JA.
...
129 As Brereton J said in Anderson v Hassett [2007]
NSWSC 1310 at [6]:
The statement in Mudginberri (at 111)
that a deliberate commission or omission which is in breach of an injunctive
order or an undertaking will constitute such
wilful disobedience unless it be
casual, accidental or unintentional, does not require proof of a specific intent
but permits an
alleged contemnor to show by way of exculpation that the default
was “casual, accidental or unintentional”
...
- The
Orders were made by the Court. The Orders were sufficiently clear such that one
can be sure beyond reasonable doubt that the order
was not complied with. The
defendant did not contend otherwise. Order 4 restrained the defendant from using
or disclosing the text
messages, identified by reference to a confidential
exhibit. If regard was had to the exhibit, the text messages were clearly
identified.
The notion of using or disclosing those text messages was
plain; posting the contents of the text messages on the internet would
amount to
a "use or disclosure" and involve a breach of the Orders. Order 5
restrained the defendant from using or disclosing the
Fifth Blog Post, which was
identified by reference to Mr Keegan’s affidavit. If regard was had
to that affidavit, identification
was clear. As with order 4, there could
be no doubt that posting the Fifth Blog Post on the internet would amount to a
"use or disclosure"
and so a breach of the orders. The first paragraph of
the Fifth Blog Post was contrary to that order. Order 6 required the
defendant
to remove the Fifth Blog Post from the Website. Its meaning was
plain.
- Applying
these principles to the case at hand, the defendant submitted that he was not
properly served with the Orders, which I have
considered at [128]-[133]. The defendant was
served with the Orders on 19 April 2017. The presence of emails and documents,
sent by the plaintiffs and WIPO
to the email ending “gmx.com”, on
the Hard Drive confirm that the defendant received emails sent to that address.
As
such, the orders for substituted service made by Ward CJ in Eq did in fact
bring the Orders to the defendant’s notice. The
defendant received the
Orders again on 26 April 2017.
- Having
been served, the defendant had knowledge of the terms of the Orders. The
defendant did not comply with the Orders. It is important
to note that the
charge of contempt is not that the defendant posted the Fifth Blog Post but
that, as publisher of the Website, he
did not remove the Fifth Blog Post once
ordered to do so, where the Orders were brought to his attention. Instead, the
defendant
continued to publish the Fifth Blog Post, including the references to
the content of the text messages, on the Website. By failing
to take down the
Fifth Blog Post, the defendant breached the Orders.
- The
defendant’s breach of the Orders was deliberate and done with the
intention of disobeying the Orders. The defendant had
the means to take down the
Fifth Blog Post. Failure to do so involved a deliberate step on his part. The
Fifth Blog Post continued
to be published on the Website via the Website
domain/address (and published by redirection to the Second Website from 14 June
2017)
until it was removed following the plaintiffs obtaining ownership and
control of that domain/address pursuant to WIPO proceedings
on about 27 June
2017. It remained published on the Second Website until about 20 July 2017,
being about the time that the defendant
apparently disposed of his laptop.
- The
fact that the Fifth Blog Post remained up until the domain/address was taken
over by the plaintiffs following the WIPO proceedings
excluded any real
possibility of inadvertence or lack of wilfulness on the defendant’s part.
So too did the ongoing publication
of the Fifth Blog Post via the Second Website
after the transfer of the domain/address to the plaintiffs. The
defendant’s disobeyance
of the Orders was wilful and exhibited defiance of
the Court. The defendant intended to interfere with the course of justice by
refusing
to comply with the takedown order over a protracted period, going so
far as to establish the Second Website to continue to publish
the Fifth Blog
Post when the plaintiffs took down the Website themselves.
- Disobedience
of a court order which constitutes a contempt of court is a matter which affects
the administration of justice generally.
The underlying rationale for the power
of a court to punish for contempt is that it is necessary to uphold and protect
the administration
of justice. The administration of justice is brought into
disrepute if disobedience to a court's order goes unpunished: Australasian
Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR
98 at 106-107; [1986] HCA 46.
ORDERS
- For
these reasons, I make the following orders:
(1) Shane Dowling is
guilty of a contempt of Court as charged in the Statement of Charge, in that he
breached the Orders made by this
Court on 19 April 2017.
(2) Direct the plaintiffs to file and serve any affidavits and submissions in
respect of penalty and costs by 4pm on 9 July 2021.
(3) Direct the defendant to file and serve any affidavits and submissions in
respect of penalty and costs by 4pm on 30 July 2021.
(4) List the matter for further hearing on penalty and costs at 10am on 13
August 2021.
**********
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