On 17 September 2021, the publisher of Nightcap Nightmare Blog was sentenced in NSW Supreme Court to prison for two weeks and a fine of $20,000, suspended on condition of good behaviour for two years, with legal costs in addition. Judge Sackar said he was imposing the severe judgement as a "real deterrent" because he considers the offending information "an affront to the Court".
I have just received sentencing for contempt of court, with a tightening gag.
For the last four years, I have been on trial in NSW Supreme Court on charges of defamation and contempt of court, accused of imputing deception, fraud and bullying to the plaintiffs Adrian Brennock and Phillip Dixon, kingpins in Nightcap Village, a prospective land-share venture at Mt Burrell, NSW.
On 18 June 2021, I was found guilty of contempt by Justice Sackar for breaching injunctive orders on six of fifteen counts, (Brennock and Dixon v Norman [2021] NSWSC 716).
The claimants, represented by Rose Litigation, brought the contempt charges as a continuation of a defamation claim for $4 million that was prosecuted against me from 2017-2020 by Mark Darwin and others, after I published allegations that their land-share “investment opportunity” was a scam.
Thanks to a referral by Sackar J to the Bar Association, I was represented in the contempt hearings by barrister Kieran Smark SC, who also represented me in 2017 during the defamation hearings, when he defeated a related demand by the plaintiffs for an interlocutory injunction imposing a total blog gag. I remember that the plaintiffs did not pay costs that were awarded in my favour by Justice McCallum.
"Dancing on a Tilted Stage"
As a British journalist and documentary filmmaker, I was professionally trained to know, when reporting allegations of misconduct, that defamation, including libel and slander, must be false to incur liability for damaging a good reputation.
But I discovered as a resident in the land of Oz, that this country wields the most draconian defamation laws in the word, where truth can be defamatory just because it causes financial loss.
I also noticed that truth cannot easily be justified to an acceptable legal standard when confronted toe-to-toe with dishonourable claimants before a judge who may be predisposed against a crusading "serial pest" without an expensive legal team.
During a seven-day defamation hearing in 2019, I presented evidence to the Court substantiating my reports that more than twenty investors lost their funds after co-financing purchase of property for the “Bhula Bhula Village Community” in 2015, with subsequent total lack of consideration and refusal of restitution. This evidence was ignored.
After three years of litigation, numerous interlocutory hearings and an excruciating trial in Sydney's Supreme Court, the defamation claim against me was won in 2020 by the plaintiffs with a judgement that their profitable folly did not rise to the level of fraud. (Darwin v Norman [2020] NSWSC 357)
I was ordered to pay $400,000 damages plus the plaintiffs' legal costs, which, they said, amounted to more than $1 million.
Injunctions were then summarily imposed, including prohibition on any publication that may implicate the plaintiffs in crimes involving deceptive marketing, fraud and bullying.
On the basis of these orders, Rose Litigation made a complaint causing Google Corp to remove multiple search results and several blogs that the group of creditors had published about the venture from 2016-2020.
In response, Nightcap Nightmare Blog was brought online, narrating facts in the context of the defamation judgement. Creditors also hoped the blog would help mitigate ad hominen attacks against them.
Contumacious Contempt?
Brennock and Dixon, the two claimants in the contempt matter, attempting to prevent my continued publication of anything related to the land-share venture, argued that because it could be inferred from facts published in the blog that they deceive and defraud people, my offence is contumacious, carrying a severe criminally penalty of incarceration with no clemency allowed.
Precedents show that in some contempt cases, those without sufficient resources to pay a fine can remedy a civil contempt by an authentic apology, rather than suffering the punishment of imprisonment. In this matter it was noted by the Judge during the 11 August hearing, that although I had edited or removed the offending posts, I had made no apology, so a severe precedent was needed to vindicate the authority of the Court.
Under current statue law, punishment relating to civil charges of contempt may not take into account mitigating considerations that normally apply to the punishment of crime. This impacts me as a lack of procedural fairness in a case where I believe the claimants are abusing legal process with perjured affidavits, tampered evidence and lying lawyers to further their venture under colour of law.
It concerns me that although a conviction for contumacious contempt of court is a conviction for an offence which imposes a criminal record, judgement is measured by the standard of a supposed reasonable reader, that is a legal fiction entirely divorced from the actual facts of reality.
