Lucy Frick v Nationwide News Pty Ltd

[2001] NSWSC 320

CITATION:	Lucy Frick v Nationwide News Pty Ltd and Anor [2001] NSWSC 320
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20571/99
HEARING DATE(S):	3 April 2001
JUDGMENT DATE:	11 September 2001
PARTIES :	Lucy Frick - Plaintiff Nationwide News Pty Ltd and Anor - Defendants
JUDGMENT OF:	Simpson J

COUNSEL :	Mr C Evatt with Mr G Hansen - Plaintiff Mr W H Nicholas QC with Mr A Leopold - Defendants
SOLICITORS:	Ward Maxwell & Co - Plaintiff Blake Dawson Waldron - First Defendant Mallesons Stephen Jaques - Second Defendant
CATCHWORDS:	Common law - civil contempt, disobedience and abuse of the orders of the Police Integrity Commission - abuse of the administration of justice - non-publication order - power, jurisdiction and authority to make - construction of - whether confined to circumstances in which the order would or might further the purposes or object of the Police Integrity Act or the Commission or is reasonably relevant thereto - whether the Police Integrity Commission is a court.
LEGISLATION CITED:	Police Integrity Commission Act 1996
CASES CITED:	John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465 Killen v Lane [1983] 1 NSWLR 171 NSW Bar Association v Muirhead (1988) 14 NSWLR 173
DECISION:	The statement of claim is dismissed; the plaintiff is to pay the defendants' costs of the statement of claim and the notice of motion.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

11 September 2001

Lucy FRICK v NATIONWIDE NEWS PTY LIMITED & ANOR

Judgment

HER HONOUR :

1    In these proceedings the applicants, Nationwide News Pty Limited and Amalgamated Television Services Pty Limited (the defendants in the principal proceedings and to whom I shall refer as “the defendants”), by notice of motion seek orders under SCR Pt 13 r 5 and/or Pt 15 r 26 staying, striking out or dismissing all or part of the statement of claim, which has had several incarnations, but which, in its final form (as “Third Further Amended Statement of Claim”) was filed in court on 3 April 2001, the date fixed for the hearing of the notice of motion. The defendants further and alternatively seek orders, purportedly under SCR Pt 40 r 8(1), that the proceedings or part thereof be permanently stayed or dismissed on condition that the plaintiff may not bring fresh proceedings for the same or substantially similar relief.

2    Initially, the causes of action pleaded in the statement of claim on behalf of the plaintiff were, or included, a claim for damages in defamation. However, that claim has now been discarded. Against each defendant the plaintiff claims damages, and other remedies, as a consequence of the alleged publication on 11 November 1999, of her photograph in a newspaper (by the first defendant) and of video film in which she is depicted on a television programme (by the second defendant). The causes of action purportedly pleaded against each defendant are identified as:

(i) “civil contempt of the Police Integrity Commission”;

(ii) disobedience of the orders of the Police Integrity Commission;

(iii) abuse of the processes of the Police Integrity Commission;

(iv) abuse of the administration of justice.

3    In respect of each claim against each defendant the conduct attributed to the defendant and said to be the foundation for each cause of action was the publication of the photograph or the video image.

4    Stripped to its essentials, the statement of claim pleads only three material facts. The first, common and essential to each identified cause of action, is an order said to have been made by the Police Integrity Commission on 10 November 1999, in the following terms:

“The non-publication order of the name will continue, but I make an order prohibiting the publication of photographic or other representation of the physical features of this witness.”

“This witness” was the plaintiff.

5    The second and third pleaded facts are the publication of the photograph and video images. For the purposes of the present proceedings, these facts may be assumed to be provable. They may be expanded by a more complete description of the publications. A news report, which is annexed to the statement of claim, under the headline “Officer ‘high’ before shooting” accompanied the photograph of the plaintiff in the newspaper. It appears to be an account of evidence given in a hearing held by the Police Integrity Commission (the Commission”) into a shooting death in which a police officer, Rodney Podesta, was involved. The focus of the article was evidence given by a witness described as “a former girlfriend’” of Mr Podesta, who gave evidence under a codename. It was common ground that this was not the plaintiff. The photograph of which the plaintiff complains is a clear full length shot of a man and a woman (the plaintiff) walking arm in arm. Both faces, but particularly that of the plaintiff, are clearly visible. The photograph is captioned:

“Wrong side of the law: Podesta and a current girlfriend leave the PIC yesterday.”

6    I have not viewed the videotape. It is described in the statement of claim as being:

“Filmed images of the plaintiff taken in the vicinity of the building in which the Police Integrity Commission is situated.”

7    I have no reason to think that the oral commentary is any different from the news item and caption published in the newspaper. What is particularly to be observed is that nothing contained in the publications states, or suggests, that the plaintiff is the person referred to as a “former girlfriend” of Mr Podesta, and who reportedly gave evidence in the hearing; nor is there anything to suggest that the plaintiff was in any way a witness or participant in the hearing, other than by accompanying Mr Podesta.

8    It was, nonetheless, common ground (and, by inference, fundamental to her claim) that the plaintiff had in fact given evidence in the hearing and that she was the subject of the non publication order made on 10 November 1999.

• • •

9 It is convenient here to set out the relevant parts of the Supreme Court Rules upon which the defendants rely. SCR Pt 13 r 5 provides:

“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) no reasonable cause of action is disclosed;
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(2) The Court may receive evidence on the hearing of the application for an order under sub rule (1).

Pt 15 r 26 provides:

“26(1) Where a pleading -
(a) discloses no reasonable cause of action or defence or other case appropriate to the notice of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court,
the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out.
(2) The Court may receive evidence on the hearing of an application for an order under sub rule (1).


Pt 40 r 8 provides:

8(1) Where … under these rules …the Court makes an order for the dismissal of proceedings or for the dismissal of proceedings so far as concerns any cause of action or the whole or any part of any claim for relief, the order for the dismissal shall not, subject to any terms and conditions on which the order for dismissal is made, prevent the plaintiff or claimant from bringing fresh proceedings or claiming the same relief in fresh proceedings.
(2) Where -
(a) the Court makes an order for the dismissal of proceedings so far as concerns any cause of action or the whole of any part of any claim for relief by any party;
(b) the Court orders that party to pay any costs; and
(c) before payment of the costs, that party brings against a party to whom the costs are payable further proceedings on the same or substantially the same cause of action or for the same or substantially the same relief,
the Court may stay the further proceedings until those costs are paid.
• • •
The bases of the application

10    The first matter urged on behalf of the defendant is a matter of considerable importance. It is that the Commission lacked the power, jurisdiction and authority to make the order; or that the purported order is ultra vires and a nullity. A secondary argument, if that were rejected, is that the order should be given a narrow construction, or that it should be read down so as to be within the power, jurisdiction and authority of the Commission.

11    The Commission is a creature of statute, having been brought into existence as a consequence of the Police Integrity Commission Act 1996 (“the PIC Act”) It has no power, jurisdiction or authority other than such as is conferred by that Act: John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465.

12    The only provision in the Police Integrity CommissionAct that appears relevant is s 52, which is in the following terms:

“The Commission may direct that:
(a) any evidence given before the Commission, or
(b) the contents of any document, or a description of any thing, produced to the Commission, or seized under a search warrant issued under this Act, or
(c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or
(d) the fact that any person has given or may be about to give evidence before the Commission,


must not be published except in such manner, and to such persons, as the Commission specifies.”

13 The argument advanced on behalf of the defendants may, I think, be stated with relative simplicity. It is that the power of the Commission to make a non publication order is confined to circumstances in which the order would or might further the purposes or objects of the PIC Act, or of the Commission, or is reasonably relevant thereto; but that the order, as framed, and when interpreted literally, would prevent any publication of any photographic or other representation of the physical features of the plaintiff in any circumstances. The order as framed is certainly very broad. It would extend to publication of a photograph of the plaintiff at a social or sporting function, publication of a photograph of the plaintiff within her family, or even the processing of film of the plaintiff, and supply of the developed photographs. It would extend to photographs or film of the plaintiff at any age or at any time. It would extend to the display, in her mother’s living room, of a photograph of the plaintiff as bridesmaid or at a high school graduation, or skiing at Thredbo. It would even extend to the production, by the plaintiff herself, of her passport or driver’s licence or any other form of identification which carries a photograph of her. S 52, the defendant argued, could not, on any construction, be perceived to extend to an order of such width as have been intended to do so. Sub para (1)(c), the most nearly applicable paragraph of the section, is inherently directed to the publication of material (“information”) that might enable a person to be identified as a witness. It could not extend to any publication of photographic or other representation of a person who has been or is to be a witness, whether linked to that person’s status as a witness or potential witness or not.

14    Once the argument is stated, it is obvious that it has a good deal to recommend it. However, although it did not occur to me at the time of argument, it has since become apparent to me that it might be inappropriate, or at least undesirable, to declare an order of the Commission invalid, or to rule upon the extent of the Commission’s power and authority, in the absence of providing to the Commission, or the Minister of the Crown under whose jurisdiction the Commission comes, the opportunity to be heard. Indeed, in one of the cases on which the defendants relied, John Fairfax & Sons Limited v Police Tribunal of NSW (supra), the Tribunal, the validity of whose orders was in question, was a party to the proceedings. While it is likely that in that case the Tribunal submitted to the orders of the Court, the Attorney General intervened, presumably for the purpose of drawing to the attention of the Court of Appeal matters relevant to the jurisdiction, and the extent of the power, and the validity of the orders of, the Tribunal. There was here no evidence that any notification had been given to the Commission of the intention to call in question either the validity of the order it had made, or the extent of its powers, nor to bring that to the attention of the Minister responsible for the administration of the Commission.

15    In any event, I have found myself able to resolve this matter in favour of the defendants without the need to explore and rule upon the validity of the order.

16    I am able to proceed on the assumption that the order is valid. It may then be further assumed that, if the order is read literally, as I have outlined above, publication of the photograph and the video depiction of the plaintiff was contrary to its terms.

17    The question is not whether such publication would, technically, be in breach of the strict terms of the order: it is whether such publication could amount to contempt of the Commission, or disobedience of its orders, or abuse of its processes, or abuse of the administration of justice (even assuming that these were otherwise legitimate causes of action) such as to give the plaintiff a right of action. In my opinion it could not conceivably do so. Here, the photograph of the plaintiff did not carry the slightest suggestion that she was the witness to whom the news report referred (and indeed she was not), nor that she was a witness before the Commission; she was identified only as “a current girlfriend” of Mr Podesta. While publication of the representations of the plaintiff might, technically, have been contrary to the terms of the order, it was not contrary to the order in such a way as to give rise to a finding of contempt, nor to a right of action in any of the other respects pleaded (even if those causes of action might, in other circumstances, be available, as to which I make no finding).

18    For this reason alone, one or more of the remedies sought by the defendants must be granted. The plaintiff’s claim is doomed to fail. This is most starkly obvious in relation to the claim based on alleged contempt, which is in essence a criminal matter; but it also applies to the other causes of action she asserts.

19    There are other reasons which dictate the same conclusions.

20    The claims the plaintiff makes in relation to the alleged contempt are threefold. Firstly, she pleads in the following way:

“6D The Plaintiff herewith refers and/or reports the matters referred to above to the Court with a view to the Court dealing with a possible contempt of the Police Integrity Commission pursuant to the provisions of Pt 55 r 12 and request(sic) an order that the matter be referred to the Registrar to take advice from the Crown Solicitor as to whether the Registrar should take proceedings for contempt in respect of the matter and that the Court act in accordance with the advice and inform the Attorney General of the matter.”

Secondly, she claims as follows:

“8A The Plaintiff claims orders that the defendants be committed or otherwise dealt with for contempt, disobedience of orders and/or abuse of the processes of the Police Integrity Commission and/or for abuse of the administration of justice. Further the plaintiff claims declarations that the defendants have been in contempt of, abused the processes of and/or disobeyed the orders of the Police Integrity Commission and/or abused the administration of justice.”

21    Finally, the plaintiff asserts that, by reason of the effect of the alleged contempt upon her, she is entitled to an award of damages, including actual, aggravated and punitive damages.

22    Pt 55 of the Rules is concerned generally with contempt. By r 11, the power of this court to deal with contempt of this court is extended to contempt of “any other court”. Sub rr (1) and (6) provide:

“(1) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court or of any other court, the Court may, by order, direct the registrar to apply by motion for, or to commence proceedings for, punishment of the contempt.”

“(6) Subject to the rules and to any Act, where, pursuant to a power conferred by or under an Act, a court or other body or person refers or reports a matter to the Court with a view to the Court dealing with a possible contempt of the court, body or person, the registrar shall:

(a) take advice from the Crown Solicitor as to whether the registrar should take proceedings for contempt in respect of the matter;
(b) unless the Court otherwise orders, act in accordance with the advice; and
(c) inform the Attorney General of the matter.”

23    Paragraph 6D is no doubt framed as it is in order to avoid the consequences of the decision in Killen v Lane [1983] 1 NSWLR 171, where it was decided that the rule does not give an individual a right to apply for the court itself to commence and maintain proceedings for contempt. But there is an even more fundamental difficulty standing in the plaintiff’s way. The power of the court conferred by the rule is confined to alleged or suspected contempt of “a court”; in my opinion, the Commission is not a court within the meaning of that rule.

24    In NSW Bar Association v Muirhead (1988) 14 NSWLR 173, the Court of Appeal considered, for the purposes of the law of contempt, whether a Commissioner appointed under the Workers Compensation Act 1987 was a court and concluded that he was. In reaching that view, Kirby P (as his Honour then was) examined a number of indicia, pointing to, or against, such a conclusion. I have performed a similar exercise in relation to the Commission. Even a cursory examination of the PIC Act points overwhelmingly to the conclusion that the Commission is not a court. It is unnecessary to mention all of the provisions of the PIC Act which dictate that result. A few will illustrate the point. In s 3 the principal objects of the PIC Act are identified as, inter alia:

“to establish a body whose principal function is to detect, investigate and prevent police corruption and other serious police misconduct”,

and there are many other objects of similar ilk. By ss 8 and 9 Assistant Commissioners, subject to the direction of the Commission, may be appointed, and by s 11 the powers of the Commission may be delegated. By ss 13, 14 and 15 functions of the Commission are spelled out, these including the prevention of serious and other police misconduct, the detection or investigation of serious police misconduct, and many more. It is unnecessary to go further. Acting on the direction of another, and delegation of functions are quite incompatible with the functions of a court; prevention of any form of police misconduct, or detection or investigation thereof, are not the functions of a court. I am satisfied that the Commission is not a court, and the reliance upon the rules of this court invoked by the plaintiff in relation to the plea that the defendant committed civil contempt is unsound in law.

25 If anything further were needed, s 118 of the PIC Act spells out the circumstances in which a person is guilty of contempt of the Commission, and s 119 prescribes the procedure for punishment of such contempt.

26    I am therefore satisfied that the claims made by the plaintiff in relation to the asserted “civil contempt” are misplaced and should be struck out of the statement of claim.

27    The second so called cause of action is “disobedience” of the orders of the Commission. I can perceive no difference between disobedience of the kind asserted, and contempt constituted by breach of, or disobedience of the Commissioner’s orders. Accordingly, the paragraphs the statement of claim pleading a cause of action in this respect must also be struck out.

28    The remaining two “causes of action” may also be dealt with as a pair. These are the asserted “abuse of the processes” of the Commission, and “abuse of the administration of justice” in defiance of the Commission’s orders.

29    “Abuse of process” is inapt to describe what the plaintiff alleges the defendants did. They did not, on the pleadings, initiate any process, or invoke the powers of the Commission in any respect. The phrase “abused the administration of justice” is not a phrase that represents any cause of action. These claims must also be struck out.

30    There is, therefore, nothing remaining of the claims set out in the statement of claim. Pursuant to Pt 13 r 5 I order that the proceedings be dismissed generally. I am not prepared, however, to accede to the application of the defendants that the order be subject to a condition that the plaintiff may not bring fresh proceedings for the same or substantially similar relief. I have above set out Pt 40 r 8, the rule upon which the application is said to be founded; it does not, on my reading, authorise the condition sought.

31    The orders I make are:-

1. the statement of claim is dismissed;

2. the plaintiff is to pay the defendants’ costs of the statement of claim and the notice of motion.

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Last Modified: 09/13/2001