Price v Crikey Media Pty Ltd
[2001] VSC 392
•4 October 2001
IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 8078 of 2000
BETWEEN
| STEPHEN WILLIAM PRICE | Plaintiff |
| and | |
| CRIKEY MEDIA PTY LTD | Defendants |
| - and - | |
| STEPHEN MAYNE |
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JUDGE: | BYRNE J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 October 2001 | |
DATE OF JUDGMENT: | 4 October 2001 | |
CASE MAY BE CITED AS: | Price v Crikey Media Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 392 | |
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Practice and Procedure - Contempt of Court - Publications by litigant tending to interfere with the due administration of justice - Amendment of contempt summons - Whether sufficient particularity of each count.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms G.L. Schoff | Corrs Chambers Westgarth |
| For the Defendants | Mr R.W. McGarvie with Mr J.D. Catlin | Holding Redlich |
HIS HONOUR:
The plaintiff, Stephen William Price, has, on 19 December 2000, brought a proceeding in this court against the defendants, Crikey Media Pty Ltd and Stephen Mayne, seeking damages for defamation. The publication of the defamatory words is alleged to have taken place on 4 December 2000 on the Internet by the first Defendant.
Following the issue of the writ, six further publications are alleged to have taken place on various dates between 31 December 2000 and 5 February 2001 by or at the instigation of one or other or both of the defendants. Following these six publications, four of them were introduced by the plaintiff into the defamation proceeding by amendment to the statement of claim made on 23 February 2001, in support of a claim for aggravated damages, and in the reply dated 2 May 2001, to rebut the defence of qualified privilege.
Meantime, before either of those pleadings were filed, the plaintiff by summons filed on 14 February 2001 brought an application against the defendants seeking orders that they be punished for contempt of court inasmuch as these six further publications were an interference with the court process.
That summons was met by a summons filed on 23 March 2001 on behalf of the defendants seeking to dismiss or strike out what I will call the contempt application on the ground of duplicity. It is this strike out application which has ultimately found its way before me.
As things unravelled in the course of the debate today, the ground has shifted in two respects. First, the contempt application has been overtaken by a proposed amended contempt summons filed on 19 June 2001 which contains more information than was found in the original contempt summons. As a consequence the defendants' strike out application presently before me became transformed into an opposition by them to an application by the plaintiff to amend his contempt summons in terms of the proposal. Much the same issues, however, were raised because the basis of this opposition was that this proposed amended summons was bad in form for the same reason.
Second, the issue from the defendants' point of view also moved a little because, although the application which it brought on 29 March complained about duplicity, it became apparent that the real complaint was not so much one of duplicity but one of insufficient particularity of the charge or charges.
Under R. 75.06.4 and at common law, it is necessary for a party bringing a contempt application to set out with considerable specificity what precisely it is said to constitute the contempt. This is not only a function of the ordinary court process that is concerned that a defendant or respondent know the case he or she or, in this case, it has to meet, but also a function of the criminal features of the contempt procedure. In MacGroarty v Clauson[1], the High Court said this:
"It has long been settled that 'no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it given to him'. When what is involved is a charge of common law contempt, it may, depending on the circumstances, not be necessary to formulate the charge in a series of specific allegations, providing that the 'gist of the accusation' is made clear to the person charged".
[1](1989) 167 CLR 251 at 255.
This is a case of common law contempt. The issue then, put rather broadly, is whether the document which is proposed sufficiently satisfies this requirement to go forward as the vehicle to bring the claim of contempt against the defendants.
I should add, lest it be not understood, that my concern in this application is not to determine or even to express any view about the rights and wrongs of the defamation proceeding which underlies this whole application, nor is it my function to express any view about the prospects of success of the contempt application. My concern is simply a procedural one, whether the contempt application in the form that is now put forward should go to trial or whether it should be modified or rejected in its present form with, perhaps, leave to the plaintiff to further particularise his allegations of contempt.
In the proposed amended summons there are six publications relied on. In respect of each of them it is said that it constitutes one count of contempt in that: "it was likely to or had the tendency to or was intended to interfere with or obstruct the due administration of justice". Then the various respects in which it is alleged that the publication had such a tendency and the like are set out in the document in a series of sub-paragraphs. The number of these respects varies from publication to publication. If I may take the first publication by way of example.
“The contempts of court charged against each of the defendants are that:
1.On 31 December 2000 the first and second defendants published to the first defendant's subscribers an email, a copy of which is attached hereto and marked "A", which was likely to, or had a tendency to, or was intended to, interfere with or obstruct the due administration of justice in that:
(a)it contained threats directed to the plaintiff designed, calculated or intended to dissuade the plaintiff from continuing his proceeding;
(b)it contained warnings directed to the plaintiff that unless he discontinue or withdraw his proceedings he would suffer adverse consequences including adverse publicity and public condemnation;
(c)it was published with the object of generating public opposition to and opprobrium of the plaintiff with a view to dissuading the plaintiff from continuing his proceeding.
PARTICULARS
The plaintiff refers to and relies upon the words in the schedule that are underlined.”
What is put is that each publication bears each of the characteristics described in these sub-paragraphs and the plaintiff wishes to prove just that. Counsel for the plaintiff further says that, if any one of those respects is established, it is or may be sufficient to amount to a contempt which should be dealt with under the punitive powers of the Court.
In the document as presently put forward, the publications, some of which go over many pages, have been underlined as to certain passages. It is said that the words underlined are the words which provide the gist of the contempt relied upon.
Bearing in mind that the object of the contempt application document is to provide the defendants with a clear idea of what is put against them, it seems to me that the document which is before me does meet those requirements.
It was argued on behalf of the defendants that there may be difficulty in their addressing the allegations because they may wish to raise, in answer to certain of the allegations, particular matters which would then become issues to be tried and determined at the trial of the contempt application. It was said that, given the generality of the allegations in the proposed amended contempt summons, this might be a difficult task. I think, from a practical point of view, there is no substance to this.
I do not wish to prolong this judgment with a detailed analysis of each and every one of the first six counts. It is sufficient that I record my opinion that each of these sufficiently describes a count of contempt which is capable of being addressed by the defendants and tried by the Court.
The seventh count is expressed in rather different terms in one important respect. It is a count which, in effect, picks up all of the six previous publications and says that, collectively, they have the contempt features which are then set out in six sub-paragraphs.
The document which is to go forward is, I am told, to contain under Count 7 particulars in similar terms to the particulars given under the preceding counts, namely, that the plaintiff refers to and relies upon the words in each of the schedules which are underlined. This, to my mind, resolves, for the same reason as I have mentioned already, the difficulties that this Count may otherwise face.
Counsel for the plaintiff said that she intended to seek a finding of contempt in respect of Count 7, even if a successful result was achieved in each of the six preceding ones. That is a matter about which I express no views. Whether that is appropriate is a matter which the judge charged with the trial of the contempt application can well deal with.
It is sufficient that for my present purposes I am satisfied that the form of the document which is put forward by way of amendment sufficiently meets the requirements of the law to warrant the amendment being granted.
A number of minor modifications are to be made to the proposed amended summons which I will mention so that there is no misunderstanding. In paragraph 1, the conjunction "and" is to be inserted between sub-paragraphs (a) and (b). In paragraph 5, likewise, the conjunction "and" is to be inserted between sub-paragraphs (c) and (d) and the word "and" at the end of sub-paragraph (d) should be deleted. At the foot of paragraph 7 there are to be inserted the particulars which I understood to be in the following terms, "The plaintiff refers to and relies upon the words in each of the Schedules A to F that are underlined".
In that form I will grant leave to amend the contempt summons.
The formal order will be in accordance with the following minutes:
(1)Leave to the plaintiff to amend its summons of 14 February 2001 in terms of the amended summons filed on 19 June 2001, subject to the minor changes that I mentioned in the course of this judgment.
(2)An amended summons in accordance with this leave be filed within seven days.
(3)The costs of the defendants' strike out summons of 29 March be paid by the plaintiff.
(4) The plaintiff's costs of this day be paid by the defendants.
(5)Any further affidavit on behalf of plaintiff in the contempt application be served by 11 October and any affidavit in reply on behalf of the defendants be served by 8 November.
(6)Refer the contempt application to the Listing Master for her to fix a date for hearing.
(7)Liberty to apply to the judge in charge of the Major Torts List or the Listing Master as may be advised.
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