Launder v Herald and Weekly Times

[2002] VSC 433

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6350 of 1999

HELEN RICHARDSON and ORS.	Plaintiffs
v
CLIVE OXLEY JONES and ORS.	Defendants
THE HERALD & WEEKLY TIMES LTD.

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JUDGE:	BONGIORNO, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 October 2002
DATE OF JUDGMENT:	1 October 2002
CASE MAY BE CITED AS:	Launder & Anor v Herald and Weekly Times
MEDIUM NEUTRAL CITATION:	[2002] VSC 433

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Contempt of Court - publication - interlocutory relief - standard of proof - considerations relevant.

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APPEARANCES:	Counsel	Solicitors
For 2nd and 3rd Defendants	Mr M.F. Wheelahan	Lander & Rogers
For Herald & Weekly Times	Mr W.T. Houghton QC	Corrs Chambers Westgarth

HIS HONOUR:

1. This is an application by two defendants to a civil action for an interim injunction preventing the publication by the Herald-Sun newspaper of an article concerning that litigation.  It has been allegedly written by a journalist, one Keith Moore.

1. So far as the Court is presently aware, the litigation concerns a claim by a widow in respect of the estate of her husband and makes allegations of breach of trust against the two applicants for this injunction.  It may contain other allegations, and doubtless seeks relief of various kinds.  These papers are not before the Court and I accept Mr Wheelahan's outline of their import at its face value;  that the action is in fact an action in the administration of a deceased estate where allegations of breach of trust are made. 

1. The application is founded upon facts derived from a telephone conversation between the administrative assistant to one of the applicants, that is to say, one of the defendants in the litigation, and the journalist concerned.  That conversation included a statement by the journalist as follows:  "I interviewed Helen Paterson last week and have a copy of all her documents and I am just giving Mr Dowd the opportunity to state his side of the story."  [I should interpolate that Helen Patterson is the same person as Helen Richardson, the plaintiff in the action to which the article will relate.]

1. The other factual basis of the application is an affidavit by Ms Nicole Feeney, a solicitor employed by the solicitors for the applicants, who deposes to the fact of the litigation, the fact that there was recently a mediation in it which did not succeed in settling the matter.  It also recounts a telephone call left on the answering machine of the other applicant to similar effect to that which was advised by Mr Moore to the administrative assistant to whom I have already referred.

1. Mr Houghton of Queen's Counsel, for the Herald-Sun, has produced what he is instructed is a draft of the proposed newspaper publication.  He says that it is a draft but that the publication will be in substance the same as that draft, and I accept that from Mr Houghton as his instructions as if that draft was exhibited to an appropriate affidavit and sworn to be a draft of the proposed article.  That is to say, I do not do so on the basis that the article will not necessarily be verbatim in that form but that there will be no significant material difference between it and the article.

1. Next, I come to Mr Wheelahan's submissions, which he helpfully noted in writing, which canvassed the law relating to the question of whether publication of this kind should be restrained.  His principal submission is that the publication of this article would bring improper pressure to bear on his clients in relation to a settlement of the action with Mrs Patterson.  He says that therefore the publication of the article constitutes a contempt.  He develops this argument further by saying that it is in fact the proximity of the failed mediation, the communication of information to the relevant journalist and the proposed publication of the article that together constitute the basis upon which an injunction should go to prevent a threatened contempt of court.

1. It is axiomatic that the question of prior restraint of publication of material proposed to be published in a public newspaper is a matter of the utmost seriousness.  One needs go no further than the passage of Kirby, P. in a case cited by Mr Houghton, namely, Civil Aviation Authority v. Australian Broadcasting Corporation[1], where, at 549, his Honour said:

"The balancing of free speech and due process involves a delicate task.  The intrusion of contempt law into freedom of expression is justified only where a real risk to the administration of justice is apparent which can be proved beyond reasonable doubt.  Certainty of disturbance therefore is the key.  Such interference can occur on various levels.  Media utterances may, on occasion, affect the inquest or trial by influencing actual or potential witnesses and jurors, or even the parties to the proceedings and even the decision-maker involved."

[1](1995) 39 NSWLR 540.

1. In this instance, we are dealing with the matter at an interlocutory stage, so that the test to be applied is really whether there is a serious issue to be tried as to whether, if published, this article would constitute a contempt of court.  In one sense, it is not really a serious question to be tried, because the question is determined once one accepts that this or something like it is the article to be published.  The question really becomes whether or not the Court is satisfied beyond reasonable doubt that this article would constitute a contempt of court if it was published in this form.  That the criminal standard of proof applies is established by the case of Witham v. Holloway[2].

   [2](1995) 183 CLR 525.

1. On looking at the article, it would appear to be largely a transcription (with some changes to accommodate journalistic licence) of the statement of claim in the proceeding brought by Mrs Patterson.  So far as it is not, it appears to consist of statements made by Mrs Patterson to the journalist, although even those statements may be able by inference to be drawn from the statement of claim.  But whether that is so or not, and whether in fact the publication of that material would constitute a defamatory publication and perhaps give rise to an appropriate claim for damages by Mr Launder and Mr Dowd, I am not convinced that this article would constitute, if published, a real risk in practical terms to the administration of justice by bringing inappropriate pressure to settle the action on those two applicants.  That is so even if the bringing of pressure on defendants to litigation itself constituted a contempt of court, as to which there must be considerable doubt, having regard to the passage of Lord Cross in Attorney-General v. Times Newspapers[3] to which Mr Houghton referred and the passage of Mason, J. in Victoria v. BLF[4].   In that case, Mason, J., at 96, said this:

   [3](1974) AC 299.

   [4](1981) 152 CLR 25.

"Although in Times Newspapers the House of Lords came down in favour of an absolute prohibition against press prejudgment designed to bring pressure to bear on a litigant to compromise proceedings in preference to a balancing test or a defence of public benefit, there has been no suggestion that a similar prohibition is the appropriate criterion in this case.  Of course, the European Court of Human Rights, working from a different foundation, adopted another approach to the question, deciding that the paramount principle of freedom of expression must prevail except in the face of a pressing social need."

His Honour then quotes The Sunday Times v. United Kingdom, a European Human Rights Court decision. 

"It was this decision, and the United Kingdom's obligation to comply with its international obligations, that induced Lord Scarman to say, in the context of reforming the law:

'The prior restraint of publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there is a substantial risk of grave injustice.'  (Attorney-General v. British Broadcasting Corporation (1981) AC 303 at 362.)

It may be that Lord Scarman's comment more nearly reflects the existing common law in Australia than does the approach taken in Times Newspapers.  But, putting this possibility to one side, I see no reason for giving a general operation to a rule which was specifically fashioned to deal with the peculiar problem in that case - the problem posed by press prejudgment designed to bring pressure to bear on a litigant to compromise claims brought against it.  Certainly there is no reason to apply the special rule to the proceedings of a Royal Commission when there is no evidence to found an inference that it was intended to interfere with the administration of justice."

1. In this case, it seems to me that unless the article itself gets to the level of constituting a contempt of court, or at least, for present interlocutory or interim purposes, has a reasonable prospect of getting to the level of constituting a contempt of court, then it does not matter that the source of it may or may not have been designed to bring pressure on the defendants by the plaintiff.  It is only the publication that can constitute a contempt of court.  The motive with which it was done is not relevant if publication of the article itself is not a contempt.

1. In the circumstances I am not prepared to grant interlocutory relief and the application for such will be dismissed.

I will order that -

1.The application by summons, which the second and third defendants have undertaken to issue, will be dismissed.

2.The second and third defendants pay the costs of Herald & Weekly Times Ltd, to be taxed.

(Discussion ensued.)

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