Lawlink NSW: 6. Publications relating to civil proceedings

6.1 In theory, the sub judice rule is as much concerned with preventing prejudice to civil proceedings as to criminal proceedings. In reality, however, publications concerning civil cases do not often attract liability for contempt and the sub judice rule has less practical importance in this context.¹

6.2 There are two main reasons for this. First, civil proceedings are usually determined by a judge, magistrate or coroner, without a jury. A publication will not usually be considered to have a tendency to prejudice legal proceedings in cases heard by a judicial officer alone if the only basis for possible prejudice is the potential for influencing the judicial officer.² This is because it is now generally assumed that judicial officers will not be adversely influenced or affected by publicity about a case as they have experience and training in making decisions on the evidence presented in court. This assumption is examined below. Secondly, civil proceedings generally tend to attract less media publicity than do criminal proceedings because the subject matter of civil proceedings is generally less dramatic or sensational.

6.3 Under existing law, a publication relating to civil proceedings may amount to contempt in three sets of circumstances. These are where the publication:

6.5 This chapter reviews the grounds on which liability for contempt may be based for publications relating to civil proceedings, and discusses whether these grounds provide sufficient reason for continuing to apply the sub judice rule to these proceedings.

6.6 Liability for sub judice contempt may be imposed, at least in theory, on the basis of possible influence on a witness. This is discussed in Chapter 4 at paragraphs 4.31-4.37.³ In DP 43, the Commission reached the tentative view that there were sufficient grounds for concern about the effects of media publicity on a witness, whether in criminal or civil proceedings, to justify imposing sub judice restrictions to protect against a substantial risk of such influence.⁴ The Commission acknowledged that, in practice, the courts may generally be reluctant to find a substantial risk of prejudice in the context of a publication that is said potentially to influence a witness in civil proceedings.⁵ However, the Commission proposed that the possibility of there being a substantial risk of prejudice in extreme cases justified retaining influence on a witness in civil proceedings as a possible ground of liability.⁶

6.7 In DP 43, the Commission proposed that the law should not impose liability for sub judice contempt on the basis of possible influence on a judicial officer, in either criminal or civil proceedings.⁷ This view accords with the current common law trend. However, the potential for a publication to cause “embarrassment” to a judicial officer needs to be considered separately from possible influence on a judicial officer.⁸ Cases which have suggested that liability may arise because of “embarrassment” have not been concerned with the risk of influence, but with protecting the integrity of the justice system from the perception of improper pressure.⁹ Although the common law is not entirely clear in this area, the Commission made no proposals for change, with one exception. That exception relates to the sentencing stage of criminal proceedings and is discussed in Chapter 7 at paragraphs 7.55-7.70.

6.8 Theoretically, juries in civil trials are as susceptible to influence by media publicity as are juries in criminal trials, and should therefore be protected from the possibility of such influence. However, the use of juries in civil proceedings is far more limited than in criminal proceedings. Although certain parts of defamation proceedings in the Supreme Court must be heard by a jury,¹⁰ and in some circumstances the courts have the power to order a jury hearing,¹¹ most civil proceedings in the Supreme and District Courts are heard by judge alone.¹² Further, the Courts Legislation Amendment (Civil Juries) Act 2001 (NSW) amends both District and Supreme Court legislation to the effect that civil actions in both these courts are to be tried without a jury unless the Court otherwise orders.¹³ Given the limited role now played by juries in civil proceedings, there is a real question as to whether there is sufficient justification for continuing to restrict publications that may influence a civil jury.

Juries in civil proceedings generally
6.9 In DP 43, the Commission considered features of civil jury trials that may support the exclusion of such proceedings from the operation of the sub judice rule. First, rules of evidence in civil proceedings are generally not as stringent as those in criminal proceedings in excluding evidence where its prejudicial effect is considered to outweigh its probative value. Therefore, there is less danger in civil trials that a jury will be made aware of information through the media that has been kept from them by the court. Secondly, in a civil trial, unlike most criminal trials receiving media attention, a person’s liberty is not in question. These factors arguably provide more room to compromise between the competing public interests in a fair trial and freedom of discussion.

6.10 However, the Commission was persuaded that, whether or not juries are used infrequently in civil proceedings, there may still be significant interference with the administration of justice in a particular case as a result of the influence of media publicity on a jury. The Commission’s tentative conclusion was that the sub judice rule should apply equally to prevent publications that prejudice civil proceedings as it does to prevent prejudice to criminal proceedings.

Juries in defamation proceedings
6.11 On the other hand, in DP 43, the Commission considered that defamation proceedings merited different treatment and that the restrictions imposed by the sub judice rule out of concern to prevent influence on a jury should not apply in cases where the jury is to be empanelled under s 7A of the Defamation Act 1974 (NSW) (“Defamation Act”).¹⁴

6.12 The Commission’s reasons for this position related to the greatly restricted role of juries in defamation proceedings instituted after 1 January 1995. Pursuant to s 7A of the Defamation Act,¹⁵ juries in defamation proceedings now do not decide issues about the truth of the imputation in question, or its fairness as a comment, or other similar matters on which they may be swayed by publicity that is prejudicial to either party. A judge alone first determines whether the matter is reasonably capable of carrying the imputation pleaded by the plaintiff and whether the imputation is reasonably capable of being defamatory of the plaintiff. If the plaintiff succeeds in this preliminary hearing, only then will a jury be empanelled to determine whether the matter complained of in fact carries the imputation pleaded and whether the imputation is in fact defamatory of the plaintiff.¹⁶ In deciding these questions, the jury, in theory at least, takes no account of the actual or deserved reputation or credibility of any of the parties. Furthermore, the jury does not determine whether the defendant has established any defence, nor any questions relating to the amount of damages.

6.13 The Law Society of New South Wales and Mr David Norris, Senior Solicitor, Crown Solicitor’s office, agreed with the Commission’s tentative conclusion that the sub judice rule should continue to apply to civil proceedings.¹⁷ As additional comment, Mr Norris questioned from when such liability should run, “for example, in relation to inquests where a jury may be required, but rarely in fact is.”

6.14 The Australian Broadcasting Corporation¹⁸ and a collective of Australian broadcasters (the “Broadcasters”)¹⁹ submitted that the sub judice rule should not apply to civil proceedings without a jury.

6.15 Mr Michael Sexton SC, New South Wales Solicitor General, submitted that “even in those few remaining civil cases which are tried by a jury, it is not easy to imagine a set of circumstances where any problem caused by pre-trial publications could not be redressed by the trial judge during the course of proceedings.”²⁰

6.16 Other barristers noted that trials involving civil juries are disappearing but argued that it is still important to maintain the sub judice restrictions when they occur.²¹ Mr Henric Nicholas QC, barrister, expressed the view that “in defamation proceedings, the effect of the prejudicial material on witnesses is still important”. He argued that there is no justification for distinguishing between civil (including defamation) cases and criminal jury trials.²²

6.17 The Commission has considered the arguments for and against retention of the sub judice rule in relation to publications which may influence witnesses, judicial officers and juries in civil proceedings, and the views expressed to it in submissions and consultations. The Commission is persuaded that the sub judice rule should apply equally to prevent publications that may influence juries and witnesses in civil proceedings, as it applies to criminal proceedings. As publications concerning civil proceedings heard without a jury may exert an influence on witnesses, or potential witnesses, causing prejudice to the proceedings, it is proper that the sub judice rule should apply to all civil proceedings, not just those heard before a jury.

6.18 Furthermore, although the use of juries in civil proceedings is becoming increasingly limited, they will still be used in some defamation proceedings and in proceedings where the court is satisfied that it is in the interests of justice for them to be tried before a jury. In such cases, there is the potential for media publicity to result in significant interference with the administration of justice.

6.19 It should also be borne in mind that the Commission recommends that restrictions on publications which may influence a jury should apply only from the time when it is known that a jury will be used in the civil or coronial proceedings.²³ In this way, the interference with freedom of speech is kept to the minimum necessary to protect the due administration of justice

6.20 The Commission has reconsidered its proposal in DP 43 for treating defamation proceedings heard before a jury differently from other civil jury trials. It now believes that the same restrictions should apply to all civil jury hearings. Notwithstanding the jury’s reduced role in defamation hearings, the potential for media publicity to impede a fair hearing, of both the plaintiff’s claim to have been defamed, warrants application of the sub judice rule.

6.21 However, for the reasons set out in Chapter 4,²⁴ the law should not impose liability for sub judice contempt on the basis of possible influence on a judicial officer.

6.22 A publication may constitute contempt if it tends to impose improper pressure on a party to civil proceedings as to the conduct of those proceedings. In particular, a publication may exert undue pressure on a party to discontinue or settle a claim which he or she has instigated or is defending.²⁵ The basis for restricting the publication of material in this context is concern that the individual party, as well as litigants and potential litigants generally, will be discouraged from seeking access to the courts for vindication of their legal rights, and in this way the due administration of justice will be impeded.²⁶

6.23 This restriction on publications that exert undue pressure on parties, although primarily applicable to civil proceedings, applies also to criminal proceedings.²⁷

6.24 DP 43 explained that case law has adopted various approaches to defining what may amount to improper pressure, with the result that it is difficult to distil any clear majority view as to the material that it is permissible to publish.²⁸ As was pointed out by Justice Mason in Harkianakis v Skalkos,²⁹ it is a difficult area, where clarity is lacking.

6.25 In the United Kingdom, three different approaches for defining the parameters for permissible comment were suggested by the House of Lords in the leading English authority, Attorney General v Times Newspaper Ltd, commonly referred to as the Sunday Times case.³⁰ One of them, the approach put forward by Lord Reid in the Sunday Times case, was adopted by the court in Commercial Bank of Australia Ltd v Preston.³¹ In that case, Justice Hunt held that a publication will only amount to a contempt by reason of pressure on a party if it has a tendency to influence a party and contains misrepresentations of the facts, and/or consists of intemperate opinion or discussion.³² According to this formulation, if the publisher actually intended to influence a party in the conduct of proceedings, liability for contempt would arise whether or not the publication was accurate and/or temperate.

6.26 However, the Court of Appeal in Harkianakis v Skalkos,³³ did not follow the principles set down by Justice Hunt in Commercial Bank of Australia Ltd v Preston. Justice Mason adopted a test put forward by Justice Deane in Australian Building Construction Employees’ and Builders’ Labourers’ Federation v The Commonwealth, namely, that the publication must have a tendency “to disparage or vilify a party … because he is a litigant … or because of the litigation or allegations made in it”.³⁴ Justice Beazley concurred in this aspect of the court’s decision in Harkianakis. The court held that the prosecution must establish either an intent to deter the litigant from initiating, continuing or discontinuing litigation,³⁵ or that the publication has, as a matter of practical reality, the impugned tendency to deter.³⁶

6.27 Although both Justice Mason and Justice Powell invoked the distinction between “proper” and “improper” pressure,³⁷ little guidance was given as to the limits of what is “proper” pressure for the purpose of assessing the tendency of the publication to cause prejudice. Justice Mason referred to the means that the court in Meissner v The Queen³⁸ identified as being improper, including the application of force, intimidation and financial inducement motivated by the private concerns of the payer. He also pointed out that in Meissner v The Queen (in obiter) it was recognised that even certain types of persuasion could cross the line between proper and improper. As well, the mere fact that something lawful is threatened does not preclude it from being improper pressure.³⁹

6.28 In North Australian Aboriginal Legal Aid Service Inc v Bradley, Justice Wilcox emphasised that it is not contemptuous merely to comment upon a pending court case or to impugn the motives of a litigant. In His Honour’s words:

6.30 In Vajda v Nine Network Australia Ltd, Justice Brownie found that a comment made by the defendant that “it would be funny, if after this [the plaintiff] still feels like suing”, did not constitute improper pressure, being “no more than a comment made by a stranger to the principal litigation in the course of a public debate”.⁴³

6.31 In order to assess what conduct may amount to improper pressure, the courts have, in some instances, explicitly distinguished between pressure imposed privately and pressure imposed publicly. Lord Diplock did this in the Sunday Times case. He held that a publication would impose improper pressure if it subjected a party to “public obloquy”.⁴⁴ In Attorney General v Hislop,⁴⁵ another leading English case, Lord Justice Parker stated that it was clear from the speeches in the Sunday Times case that “there is a difference between private pressure, whether by an opposing litigant or a third party, and publication to a wide section of the public”. However, His Lordship went on to say “that so far as the latter is concerned, the mere fact that the publication will exert pressure will not suffice to constitute the publication as contempt so long as it consists of no more than fair and temperate criticism”.⁴⁶ Lord Justice McCowan held that there was “all the difference in the world” between a private discussion between lawyers and an opposing litigant and holding that litigant up to “public obloquy in terms neither fair nor temperate but of abuse”.⁴⁷

6.32 In Resolute Ltd v Warnes, the Full Court of the Supreme Court of Western Australia also drew a distinction between private and public pressure. Justice Ipp noted that “warnings expressed by one litigant to another about the extent of costs that are being incurred and the likelihood of their recovery have always been legitimate weaponry in litigation negotiations”.⁴⁸ Justice Ipp held that some of the warnings or threats made by the respondent in that case gave rise to private pressure to discontinue litigation. In relation to those, his Honour was not satisfied beyond reasonable doubt that they were made improperly. However, other publications to persons not involved in the litigation, applying pressure on the applicants publicly, were held to be improper and amount to contempt.

6.33 The Australian Law Reform Commission, (“ALRC”) in its report on contempt, took the view that there should be no liability for sub judice contempt if the only basis for liability was possible pressure on a party, unless actual intention to impose pressure could be proven.⁴⁹ It pointed out that there already existed two criminal offences in relation to interference with civil proceedings (or, for that matter, criminal proceedings) where actual intention must be proved. These were perverting the course of justice and attempting to pervert the course of justice.⁵⁰ The statutory offence of perverting the course of justice does not appear to require proof of an objective tendency to pervert, differing from the common law offence in that respect.

6.34 There is one other point of ambiguity in this area of the law of sub judice contempt. It has been questioned whether the tendency of the publication should be measured against the capacity to withstand pressure of the particular litigant involved, or whether against some hypothetical litigant of “ordinary” fortitude. This issue has not been resolved, although in Harkianakis v Skalkos, Justice Mason expressed a preference for the latter approach⁵¹ and Justice Powell, dissenting on a finding of contempt, stated that the proper test was to look objectively at the effect of the publication on the litigant.⁵² In Resolute Ltd v Warnes, Justice Ipp noted that there was no evidence before the Court as to the ability of the applicant to withstand pressure and, on that basis, approached the matter “as if [the applicant] were a litigant of ‘ordinary’ fortitude”.⁵³ It is uncertain from this whether the Court would have taken a different approach had there been evidence before it of the applicant’s ability to withstand pressure. Similarly, in Attorney General v Hislop, there was said to be no real evidence as to the plaintiff’s fortitude and therefore no alternative but to consider the matter on an objective basis. However, Lord Justice Nicholls stated that, even if there had been evidence that the plaintiff was unusually tenacious, and unlikely to be deterred from continuing, that would not have precluded a finding of contempt. His Honour emphasised that:

6.36 The approach of Justice Wilcox to this issue in North Australian Aboriginal Legal Aid Service Inc v Bradley is ambiguous. On the one hand, after referring to the two alternatives put forth by Justice Mason, His Honour said that he had “looked at the position of the North Australian Aboriginal Legal Aid Service [(“NAALAS”)] itself, rather than taken the hypothetical litigant of ordinary fortitude” in order to determine the tendency of the defendant’s comments to apply improper pressure.⁵⁶ On the other hand, His Honour went on to say:

6.38 In DP 43, the Commission did not reach a firm view on whether the law should provide protection against pressure on parties in civil proceedings, although it was inclined to think it should. DP 43 called for submissions on whether it is desirable to impose liability for sub judice contempt in this situation, and, if so, whether the applicable common law should be clarified and/or modified by statute. DP 43 outlined three options for imposing liability:

6.40 DP 43 noted that in some cases where actual intention to interfere with civil proceedings (or, for that matter, criminal proceedings) can be proved, the offender can be charged with criminal offences, namely, perverting, or attempting to pervert, the course of justice.⁶⁰ The statutory offence of perverting the course of justice does not appear to require proof of an objective tendency to pervert, differing from the common law offence in that respect.

6.41 Mr Norris submitted that it would be “appropriate to adopt the approach of Mason P in Harkianakis”.⁶¹ In other words, the test of improper pressure should be that laid down by Justice Deane in Australian Building Construction Employees’ and Builders’ Labourers’ Federation v The Commonwealth⁶² and reiterated by His Honour in Hinch v Attorney General (Vic) (No 2)⁶³ that the publication have a tendency “to disparage or vilify a party … because he is a litigant … or because of the litigation or allegations made in it”. In Mr Norris’s view, this provided consistency with other forms of contempt and had the advantage of not requiring legislative change. However, he queried how “improper pressure” could be defined.⁶⁴

6.42 Mr Sexton, SC, the New South Wales Solicitor General, criticised the three different approaches formulated in the Sunday Times case as being unclear and unsatisfactory. He made the point that the great majority of media publications critical of one party to litigation might be expected to be directed at large corporations (from either the public or private sector) and are therefore “unlikely to be intimidated by opinions expressed in the media, not least because they have large public relations departments with which to respond”. He concluded that “the limited utility of this category of contempt has to be weighed against its potential to inhibit discussion of what are usually matters of public interest.” He also pointed out that legislation would be necessary if this category of contempt were to be removed, although care would need to be taken to ensure that there is no overlap with the provisions in the Crimes Act 1900 (NSW) on perverting the course of justice.⁶⁵

6.43 The New South Wales Bar Association submitted that “the common law should remain unmodified by statute and allowed to develop on a case by case basis” for the reason that “the common law gives the judge the flexibility necessary for the proper determination of such cases”.⁶⁶

6.44 The Victorian Bar Council submitted that there seems to be an increasing tendency for litigants, particularly in civil proceedings, to use media publicity to their advantage in placing pressure on other parties to litigation: “this impression may be based upon only anecdotal information, however it is an impression that is reinforced by the concerns of clients.” It submitted that there are strong reasons to retain the application of the sub judice rule to civil proceedings, in view of “the effects that media ‘firestorms’ can have”.⁶⁷ In the Council’s view, the Commission’s first option for imposing liability is the most desirable on the basis that “it is clearly preferable to afford the rule some reasonable predictability of operation, whilst at the same time limiting its ambit to the most serious of cases”.⁶⁸ Nonetheless, it believed that some modifications to this option are desirable. It submitted that “liability should attach to cases where a publisher is ‘shown’ to have intended to impose pressure on a party to withdraw from, or settle, litigation, or to vilify a person or organisation in their capacity as litigant.”⁶⁹

6.45 The Law Society was of the opinion that the test should be whether a publication carries a substantial risk of imposing improper pressure on a party. It considers the Commission’s third option “the most appropriate and most consistent with principles enunciated elsewhere in [DP 43]”.⁷⁰

6.46 The Commission has concluded that, first, in the interests of the proper administration of justice, litigants, as well as prospective litigants, need to be protected from publicity that unfairly inhibits their access to the justice system and unfairly inhibits how they choose to conduct or participate in legal proceedings. Secondly, there should be legislative clarification and reform of the common law approach to this issue.

6.47 After carefully considering the submissions to DP 43 and reviewing the case law in this area, the Commission has formulated a recommendation that incorporates elements of all three options put forward in DP 43. The Commission’s recommended formulation imposes liability for contempt if a person or organisation publishes material that gives rise to a substantial risk that a party to proceedings will make a different decision in relation to those proceedings, for the reason that it vilifies a person in their character as a party to the proceedings.

6.48 This recommendation hinges on the “vilification” of the litigant, drawing on the judgments of Justice Mason in Harkianakis and Justice Deane in Hinch v Attorney General (Vic) (No 2). This in turn entails the published material having contained unfair comment and/or material misrepresentation of fact. The key element in the legislative provision needs to be the effect (or likely effect) the publication has on the audience (namely that it will think significantly less of the litigant in some way), which thereby gives rise to the risk that the litigant will feel pressured. In other words, three dramatis personae are necessary: the publisher; the litigant; and the audience. The reason for this is that this reference is confined to contempt by publication, which concerns the effect on the public of a publication. Where there is private pressure exerted on a litigant contempt may still arise, but not by virtue of the potential impact of public opinion on his or her conduct.

6.49 The Commission does not recommend attempting to define “improper pressure” in legislation for the reason that this may result in unnecessary restriction and/or uncertainty. Rather, the Commission’s formulation defines “vilification” and encapsulates generally the concept of improper pressure.

6.50 The Commission has concluded that in the amending legislation being recommended, “vilifies” should be defined as “incites hatred towards, serious contempt for, or severe ridicule of”. This is the formula used in s 20C of the Anti-Discrimination Act 1977 (NSW) as part of the definition of racial vilification. In accordance with the arguments made earlier in this chapter, this formulation focuses on the feelings towards the actual or prospective litigant that the relevant publication stirs up within the community. In addition to harmful defamatory imputations, it includes abuse and ridicule of a serious nature (which will not necessarily have defamatory content).⁷¹ It also has the significant advantage of enabling the court, in contempt proceedings, to rely on the decisions interpreting s 20C of the Anti-Discrimination Act 1977 (NSW) for assistance in interpreting this “improper pressure” provision.

6.51 The Commission has concluded that mere intention to “vilify” a litigant or prospective litigant, without the publicity actually giving rise to a substantial risk that a litigant or prospective litigant of reasonable fortitude in that situation would be deterred, should not amount to contempt. However, pursuant to the Commission’s recommended provision, it would not be necessary to prove an intention to deter the litigant or prospective litigant for liability to arise. Proof of such an intention would be a relevant factor in determining the appropriate sentence once the publisher had been found guilty of contempt.

6.52 Liability should be made subject to the public interest principle, that is, a publisher may escape liability in this situation if its publication related to a matter of public interest. Additionally, all other defences available in cases of sub judice contempt should be available in this case.

6.53 The prejudgment principle, while not concerned to prevent prejudice to particular proceedings, is nonetheless regarded as an aspect of the sub judice rule. Its more general goal is to prevent the media from usurping the role of the courts, undermining public confidence in the court system, and deterring future litigants, by engaging in “trial by media”. Hence, it is possible that media publications will attract liability for contempt if they prejudge issues that are at stake in a case currently before a court.⁷²

6.54 Because the prejudgment principle does not require proof of a tendency to prejudice the trial of a particular case (meaning, usually, prejudicing a jury), it predominantly operates to restrict publications relating to civil proceedings. In theory, the prejudgment principle may also operate to restrict publication of material relating to appeals (civil or criminal).

6.55 The restrictions imposed by the prejudgment principle may have particular importance to investigative journalism, and even, perhaps, academic and scientific publications on matters which are the subject of civil proceedings. Yet it is uncertain how far the prejudgment principle operates in Australia or, indeed, whether it operates in this country at all.

6.56 The prejudgment principle was established in England in the Sunday Times case.⁷³ In that case, the House of Lords granted an injunction to restrain the publication of an article relating to an action for negligence brought against a drug company, on the basis that the article in effect charged the company with negligence and therefore prejudged the issues to be decided in the civil proceedings.

6.57 The attitude of the Australian courts towards the Sunday Times case is unclear. Several Australian judges have referred with approval to the prejudgment principle as articulated in it,⁷⁴ although no Australian case has established liability for contempt on this ground alone. Other judges have expressed doubt that the principle does, or should, apply to restrict publications under Australian law.⁷⁵ In the United Kingdom itself, the courts have not applied the prejudgment principle since the Sunday Times case⁷⁶ and have expressed serious doubts about it.⁷⁷ Legislation was introduced to reverse the House of Lords’ decision,⁷⁸ although it is not clear whether it succeeded in doing this.⁷⁹

6.58 In DP 43, the Commission expressed a concern that application of the prejudgment principle in contempt law unacceptably impinges on freedom of expression. The Commission proposed that legislation should make it clear that liability for sub judice contempt cannot be founded simply on the basis that a publication prejudges issues at stake in proceedings.⁸⁰

6.59 The Australian Broadcasting Corporation, the Australian Capital Territory Bar Association, the Broadcasters, the Australian Press Council, the Law Society of New South Wales, Mr Norris, and Mr Sexton all agreed with the Commission’s proposal.⁸¹

6.60 Mr Michael Martin, Acting Head, Legal Services, Australian Broadcasting Corporation⁸² also agreed “wholeheartedly” with the Commission’s proposal but added that it “may not sit consistently with what the Commission has said re sentencing.” However, the Commission would see no serious contradiction between rejecting the prejudgment principle in its broad terms and favouring a distinctly narrower principle dealing only with the impact on parties or witnesses of media comments regarding the sentence to be imposed on an individual offender.

6.61 Mr Norris stated⁸³ that he regards “the prejudgment principle as put to bed in this State by [Civil Aviation Authority v Australian Broadcasting Corp⁸⁴]”. Mr Sexton, SC, in noting that the concept of contempt by prejudgment is essentially confined to civil cases, submitted that it “never … had any utility in cases presided over by a judge alone (now the great majority of civil cases)”.⁸⁵ He also submitted that it can be argued that the notion of contempt by prejudgment is inconsistent with the implied freedom of communication identified in the Constitution by the High Court in Lange v Australian Broadcasting Corporation.⁸⁶

6.62 The Commission is, like others, concerned that application of the prejudgment principle in contempt law unacceptably impinges on freedom of expression. Its operation curtails “free public discussion of topics of general concern”,⁸⁷ even though no potential for actual damage to a particular case can be identified.

6.63 The Commission agrees with the majority judgment of the European Court of Human Rights in Sunday Times v United Kingdom that courts cannot operate in a vacuum and that, accordingly, there cannot be a complete ban on prior discussion of disputes outside the courts.⁸⁸

6.64 The Commission is also persuaded by the weight of opinion in favour of ruling out operation of the prejudgment principle in contempt law and of making this clear in legislation. The conclusions reached by other law reform bodies⁸⁹ and the approaches of other common law jurisdictions⁹⁰ support this stance. It is, furthermore, desirable that legislation remove the current uncertainty of the common law.

Table of Contents

1. This is also true of summary hearings by a magistrate, appellate proceedings, and coronial inquests.

2. See, for example, Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540; Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 733; Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25; compare X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 at 590 (Kirby J).

5. See Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 59 (Gibbs CJ), at 103 (Mason P), at 131-132 (Wilson J), at 119 (Aickin J agreeing), at 75 (Stephen J dissenting on this point), at 176-177 (Brennan J dissenting on this point, though not expressly considering the issue of possible influence on witnesses), Murphy J did not consider this issue: see also NSWLRC DP 43 at para 4.34-4.35.

6. NSWLRC DP 43, Proposal 3 reflects the position that sub judice law should continue to impose liability for a publication relating to civil proceedings on the basis of potential influence on a witness (or potential witness).

10. Proceedings on a claim in respect of defamation in which there are issues of fact must be tried by a jury unless otherwise ordered: Supreme Court Act 1970 (NSW) s 86. However, the jury’s role is limited: see para 6.11-6.12.

12. See Supreme Court Act 1970 (NSW) s 85(1); District Court Act 1973 (NSW) s 76A(1).

13. Specified aspects of defamation proceedings in the Supreme Court in which there are issues of fact are to continue to be tried with a jury: Courts Legislation Amendment (Civil Juries) Act 2001 (NSW) Sch 2, s 86.

15. Section 7A was inserted by the Defamation (Amendment) Act 1994 (NSW) Sch 1[2]. See Courts Legislation Amendment (Civil Juries) Act 2001 (NSW) s 86.

16. Probably also whether publication by or on behalf of the defendant has been proved.

17. Law Society of NSW, Submission at para 22; D Norris, Submission at para 69.

25. See Attorney General v Times Newspapers Ltd [1973] QB 710; Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Harkianakis v Skalkos (1997) 42 NSWLR 22; Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316; North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 188 ALR 312.

28. See S Walker, The Law of Journalism in Australia (Law Book Company, Sydney, 1989) at para 1.3.25; A Riseley, Improper Pressure on Parties to Court Proceedings (Australian Law Reform Commission, Reference on Contempt of Courts, Tribunals and Commissions, Research Paper 3, 1986) ch 3; Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27 (Mason P). See also Duff v Communicado Ltd [1996] 2 NZLR 89 (Blanchard J), discussed in NSWLRC DP 43 at para 6.28.

30. Attorney General v Times Newspapers Ltd [1974] AC 273. See NSWLRC DP 43 at para 6.21 for a discussion of the different approaches.

34. Australian Building Construction Employees’ and Builders’ Labourers’ Federation v The Commonwealth (1981) 53 FLR 396 at 401-402 (Deane J) reiterated in Hinch v Attorney General (Vic) (No 2) (1987) 164 CLR 15 at 54-55 (Deane J); see also Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316.

35. See also Hamersley Iron Pty Ltd v Lovell. In that case, there was an express finding of intent to deter.

39. Harkianakis v Skalkos at 30 (Mason P). See also Attorney General v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 29 (Hunt J): “Of course, numerous repetitions in the media of the nature of the evidence available against a party to pending proceedings could well amount to [improper] pressure.”

40. North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 188 ALR 312 at para 82.
41. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 37 (Mason P), citing Lord Reid in Attorney General v Times Newspapers Ltd [1974] AC 273.

42. Hinch v Attorney General (Vic) (No 2) (1987) 164 CLR 15 at 76 (Toohey J), adopted by Justice Mason in Harkianakis v Skalkos at 38 (Mason P).

45. Attorney General v Hislop [1991] 1 QB 514. See also Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496.

51. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 29-30 (Mason P, Beazley J concurring). In the New Zealand case, Duff v Communicado Ltd [1996] 2 NZLR 89 (Blanchard J), the court took the view that the prejudicial effect of a publication should be measured according to a hypothetical litigant of ordinary fortitude, rather than according to the particular characteristics of the litigant concerned.

55. Vajda v Nine Network Australia Ltd [2000] NSWSC 873 at para 14. Her Honour noted that in G Borrie and N Lowe, The Law of Contempt (3rd edition, Butterworths, London, 1996) the authors express a preference for an objective test and note that “the disadvantage of a subjective test is that it increases the uncertainty of the law in an area where uncertainty has a restrictive effect on freedom of speech”: at 209.

58. This was the formulation put forward in Duff v Communicado Ltd [1996] 2 NZLR 89 (Blanchard J).

59. Harkianakis v Skalkos (1997) 42 NSWLR 22 (Mason P, with Beazley J agreeing).

61. Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 at para 42 citing Deane J in Hinch v Attorney General (Vic) (No 2) (1987) 164 CLR 15 at 54-55.

62. Australian Building Construction Employees’ and Builders’ Labourers’ Federation v The Commonwealth (1981) 53 FLR 396 at 401-402 (Deane J).

72. See, for example, Attorney General v Times Newspaper Ltd [1974] AC 273: An article which claimed that a drug company had been negligent in selling an unsafe drug, published while there were proceedings pending before a court for an action in negligence against that company, was held to have prejudged the issues at stake and was held to be in contempt.

73. Attorney General v Times Newspaper Ltd. This case is discussed in detail in NSWLRC DP 43 at para 6.41-6.44.

74. See Watts v Hawke & David Syme & Co Ltd [1976] VR 707; Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 167-168 (Brennan J); Hinch v Attorney General (Vic) (No 2) (1987) 164 CLR 15 at 54-55 (Deane J); National Mutual Life Association of Australasia Ltd v General Television Corporation Pty Ltd (1988) 62 ALJR 553 at 555-556 (Toohey J).

75. See Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation at 96 (Mason P); Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 at 553-560 (Kirby J): Justice Kirby suggested that it could be in breach of Australia’s international obligations to respect the right of freedom of expression (see International Covenant on Civil and Political Rights, Art 19) and may be inappropriate in light of our implied constitutional right to freedom of political discussion. Justice Kirby doubted whether the prejudgment principle is essential to the protection of the capacity of courts effectively to discharge their functions: at 558. Justice Sheller suggested that the principle should be very closely confined if it were to operate at all: at 573-574.

76. See Schering Chemicals Ltd v Falkman Ltd [1982] 1 QB 1; Re Lonrho Plc [1990] 2 AC 154.

78. See Contempt of Court Act 1981 (UK) s 2(2), which provides that, in the absence of an intention to prejudice the administration of justice, liability for sub judice contempt will only arise where there is a substantial risk of serious prejudice.

79. The Contempt of Court Act 1981 (UK) does not expressly abolish the prejudgment principle. Furthermore, s 2 of the Act applies only to publications which interfere with “particular legal proceedings”. It may be argued that the prejudgment principle aims to prevent interference with the administration of justice as a whole, rather than interference with particular proceedings, and therefore the common law relating to this aspect of contempt law survives the introduction of the legislation. See Attorney General v English [1983] 1 AC 116 at 143 (Lord Diplock); A M Tettenborn, “The contempt of court bill: some problems” (1981) 125 Solicitors Journal 123. But see the argument that the legislation should be interpreted as abolishing the prejudgment principle in Borrie and Lowe at 117-121.

81. ABC, Submission at 2; ACT Bar Association, Submission; Australian Broadcasters, Joint Submission at 9; Australian Press Council, Submission at 6; Law Society of NSW, Submission at 8; D Norris, Submission at para 72; M Sexton SC, Submission at 2.
82. M Martin, Acting Head, Legal Services, Australian Broadcasting Corporation, Consultation.

84. Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540.

87. Schering Chemicals Ltd v Falkman Ltd [1982] 1 QB 1 at 30 (Lord Justice Shaw).

88. “Whilst … [the courts] are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it in specialised journals, in the general press or amongst the public at large. Furthermore, whilst the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them”: Sunday Times v United Kingdom (1979) 2 EHRR 245 at 280.

89. These include the Australian Law Reform Commission, the Phillimore Committee in the United Kingdom and the Irish Law Reform Commission: see NSWLRC DP 43 at para 6.50-6.53.