The Queen v The Herald & Weekly Times Pty Ltd (Ruling No 1)

Case •

[2020] VSC 616

•

23 September 2020
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

Common Law Division

Major Torts List

S ECI 2019 01228

THE QUEEN (ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS) Applicant
v 
THE HERALD AND WEEKLY TIMES PTY LTD & OTHERS (according to the attached Schedule) Respondents

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JUDGE:

John Dixon J

WHERE HELD:

Melbourne

DATE OF HEARING:

2 September 2020

DATE OF RULING:

23 September 2020

CASE MAY BE CITED AS:

The Queen v The Herald & Weekly Times Pty Ltd & Ors (Ruling No 1)

MEDIUM NEUTRAL CITATION:

[2020] VSC 616

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CONTEMPT OF COURT – Allegations of breach of suppression order and sub judice contempt – Multiple corporate and natural person respondents – Joint trial of all respondents – Applications for discovery by applicant and respondents – Natural person respondents entitled to privilege against self-incrimination – Whether corporate respondents compellable to make discovery – Relevance of companion rule – Applicability of prosecuting authority’s duty of disclosure – Whether discretionary considerations relevant – Civil Procedure Act 2010 (Vic) ss 9; Criminal Procedure Act 2009 (Vic) ss 110-111, 185, 416; Evidence Act 2008 (Vic) ss 17, 135.

PRACTICE AND PROCEDURE – Contempt – Whether criminal or civil proceeding – Extent to which respondents required to plead positive defences – Construction Forestry Mining & Energy Union v Boral Resources (Vic) Pty Ltd & Ors (2015) 256 CLR 375 applied.

PRACTICE AND PROCEDURE – Discovery – Multiple respondents – Where admissions to factual allegations differ between respondents – Whether documents in possession of respondent discoverable for purpose of case against other respondents –Supreme Court (General Civil Procedure) Rules 2015 O 29.

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APPEARANCES:

 Counsel Solicitors
For the Applicant Ms L De Ferrari SC and Ms R Kaye of counsel Abbey Hogan, Solicitor for Public Prosecutions
For the Respondents Dr M Collins QC with Mr M A McLay of counsel Macpherson Kelley Pty Ltd

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Discovery............................................................................................................................................. 2

Discovery from corporate respondents..................................................................................... 6

Compellability of discovery............................................................................................... 8

Relevance or amenability to discovery........................................................................... 13

Discretionary considerations........................................................................................... 17

Conclusion.......................................................................................................................... 24

Discovery from applicant........................................................................................................... 25

Adequacy of respondents’ pleading............................................................................................. 32

Conclusion......................................................................................................................................... 35

HIS HONOUR:

Introduction

  1. On 1 May 2018, Cardinal George Pell (‘Pell’) was committed to stand trial on child sexual abuse charges. Those charges were to be heard sequentially in two separate jury trials in the County Court of Victoria: the ‘cathedral trial’ (the first trial in time) and the ‘swimmers trial’ (the second trial in time) respectively.

  1. On 25 June 2018, Chief Judge Kidd made a proceeding suppression order in respect of both trials (‘proceeding suppression order’). The proceeding suppression order included orders that publication was prohibited of any report of the whole or any part of the trials, and any information derived from the trials and any court documents associated with those trials, save that publication was permitted that the accused was facing prosecution for historical child sexual offences in the County Court.

  1. On 11 December 2018, in the cathedral trial, the jury found Pell guilty of charges of child sexual abuse.

  1. Soon after this verdict, several publications and broadcasts (collectively referred to in this ruling as ‘publications’) are alleged to have been made by Australian media organisations, and individual editors and journalists, in breach of the proceeding suppression order that remained extant, as the ‘swimmers trial’ was to commence in the County Court on 11 March 2019.

  1. On 14 December 2018, an application by various media organisations for variation of the proceeding suppression order was refused by Chief Judge Kidd. There was no appeal.

  1. On 22 March 2019, the Director of Public Prosecutions (‘applicant’) brought contempt proceedings by originating motion against thirty-six respondents in respect of the publications. Since then, the parties have exchanged pleadings and, for the purpose of identifying the precise case being made out against each respondent, the parties have filed a summary of prosecution opening and a response to that summary.

  1. The parties have agreed that the trial of the proceeding will remain scheduled to commence on 9 November 2020, but a number of pre-trial issues are in dispute between the parties and require determination.

  1. Since I reserved my decision, the applicant has issued a further application concerning the thirtieth and thirty-third respondents. The effect of this application is that it is no longer necessary that I resolve in this ruling two issues that were the subject of submissions at the hearing (being whether leave is required to withdraw certain admissions by those respondents and whether certain categories of discovery can be sought from them).

  1. Accordingly, the present issues for determination are:

(a)   whether the respondents must make discovery of documents in accordance with the categories of discovery submitted by the applicant;

(b)  whether the applicant must make discovery in accordance with the categories of documents submitted by the respondents; and

(c)   whether the respondents must provide a further and better defence and response to the applicant’s summary of prosecution opening.

Discovery

  1. On 26 May 2020, I ordered that the parties:

(a)   exchange categories of documents for discovery;

(b)  file and serve lists of documents within the categories sought, to the extent that the categories were not disputed; and

(c)   issue any application in relation to such categories as are in dispute.

These are the applications contemplated by that order.

  1. The High Court in Construction Forestry Mining & Energy Union v Boral Resources (Vic) Pty Ltd & Ors (‘CFMEU’)[1] stated that contempt proceeding are civil proceedings and that the rules of civil procedure, not the rules of criminal procedure, apply according to their tenor. Discovery in this proceeding is governed by r 29.07 of the Supreme Court (General Civil Procedure) Rules (2015) (‘Rules’), which relevantly states:

    [1](2015) 256 CLR 375 (‘CFMEU’).

29.07     Order for discovery

…

(2)In a proceeding not within Rule 29.01, the Court may at any stage order any party to make discovery of documents.

(3)An order under paragraph (1) or (2) may be limited to such documents or classes of document, or to such questions in the proceeding, as the Court thinks fit.

  1. In determining how or whether to limit the appropriate classes of documents or questions in the proceeding for discovery, in the exercise of the broad discretion conferred by the rule, it is convenient to have regard to the general entitlement to discovery in civil proceedings made clear in r 29.01.1:

29.01.01   Scope of discovery

(1)Unless the Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in paragraph (3).

(2)Paragraph (1) applies despite any other rule of law to the contrary.

(3)Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given—

(a)documents on which the party relies;

(b)documents that adversely affect the party's own case;

(c)documents that adversely affect another party's case;

(d)documents that support another party's case.

…

  1. The applicant makes two allegations of contempt against the respondents: first, breach of the proceeding suppression order by the publications, and, secondly, sub judice contempt by the publications.

  1. These allegations follow a pattern. It is convenient for the purposes of this ruling to use the allegations made against the first respondent (a corporation) and third respondent (a journalist) in respect of a publication that appeared on the website of the Herald Sun newspaper (‘Herald Sun online article’). The resolution of the issues arising in this ruling between the applicant and the first and third respondents will illustrate the appropriate orders to be made in respect of other respondents.

  1. The statement of claim relevantly pleaded:

A.       Herald Sun online article

A.1     Breach of the proceeding suppression order

46.On or about and continuing after 13 December 2018, the First Respondent and Third Respondent each published or caused to be published on the internet accessible in the States and Territories of Australia at website an article titled “NATION’S BIGGEST STORY. The story we can’t report”, a copy of which is item 1 in Annexure A to this statement of claim (The Herald Sun online article).

47.By publication of the Herald Sun online article, the First Respondent and the Third Respondent each breached the proceeding suppression order by publishing an article accessible on the internet in the States and Territories of Australia that was contrary to the terms of that order and so had the effect of interfering with or frustrating the administration of justice.

Particulars

[particulars omitted]

48.At the time of publishing the Herald Sun online article, each of the First Respondent and the Third Respondent had sufficient knowledge or adequate notice of the effect or content of the proceeding suppression order such that a reasonable person in their positions would have apprehended that publication of the Herald Sun online article on the internet accessible in the States and Territories of Australia would have the tendency to frustrate the terms of the order.

Particulars

[particulars omitted]

49.In the premises, each of the First Respondent and the Third Respondent committed contempt of court by breaching the proceeding suppression order.

A.2Sub judice contempt

50.Further or alternatively, the publication of the herald Sun online article had a serious tendency to prejudice the fair trial of the charges pending against Pell which were to be determined at the ‘swimmers trial’ and thus the administration of justice.

Particulars

[particulars omitted]

51.In the premises each of the First Respondent and the Third Respondent committed sub judice contempt by publishing or causing to be published the Herald Sun online article on or about and continuing after 13 December 2018.

  1. The pleaded defence on behalf of the first and third respondents is in the following terms:

A.       Herald Sun online article

A.1     Breach of the proceeding suppression order

46.Save to admit that the First Respondent published the Herald Sun online article on 13 December 2018, the First and Third Respondents otherwise do not admit the allegations in paragraph 46.

47-49.The First and Third Respondents deny the allegations in paragraphs 47 to 49.

A.2     Sub Judice Contempt

50-51.The First and Third Respondents deny the allegations in paragraphs 50 to 51.

  1. Three features of this proceeding may be noted.

(a)   it is a civil proceeding in which the applicant is the chief prosecuting authority for the State of Victoria, the Director of Public Prosecutions. The proceeding arises out of the proceeding suppression order, which was made on the application of the crown prosecutor in a criminal trial;

(b)  the respondents include both corporations and individuals, who were not parties to the criminal trial in a direct sense, but were able to be heard in respect of the proceeding suppression order under the provisions of the Open Courts Act2013 (Vic); and

(c)   all of the respondents are represented by a single legal team.

Discovery from corporate respondents

  1. The applicant seeks categories of discovery from each of the corporate respondents.  As with the structure of the pleading, the categories are similar for each corporate respondent and it is convenient to set out the categories sought from the first respondent for the purpose of resolving this application:

From the First Respondent

1. Documents pertaining to each of the following:

(a) The preparation of the Herald Sun online article prior to it being uploaded online;

(b) The provision of the text of the Herald Sun online article to the First Respondent;

(c) Any amendments made to the text of the Herald Sun online article after it was first provided to the First Respondent and prior to it being uploaded onto the internet;

(d) The process, as at 11-13 December 2018, between authorship of an article for possible publication on the Herald Sun online and the uploading of such article onto the internet;

(e) Communications to or from the editor of the Herald Sun online relating to the Herald Sun online article;

(f) The date of upload onto the internet and the date of removal from the internet (if applicable) of the Herald Sun online article;

(g) The number of subscribers to the Herald Sun, as at 13 December 2018 and in the period 13 December 2018 to 25 February 2019, for both Victoria-based subscribers and the whole of Australia.

2. Documents recording the occasions on which the Herald Sun online article was accessed online, including the dates and times of such access, the number of such occasions it was accessed, and the locations from which it was accessed.

  1. The position of the respondents in respect of three principles enunciated by the High Court in CFMEU may be noted.

  1. First, the respondents accepted that the Rules apply to discovery in the proceeding, and that there is no impediment per se to discovery being ordered against a corporate respondent in a contempt proceeding.

  1. Secondly, respondents who are natural persons may resist production of documents under the Rules, on the basis that production and inspection of such documents may offend the privilege against self‑incrimination or the privilege against self‑exposure to penalty. No discovery was sought from the individual respondents. A corporation is not entitled to these privileges,[2] and cannot resist compulsory production of documents on that basis.

    [2]Evidence Act 2008 (Vic) s 187.

  1. Thirdly, it is necessary to identify the precise nature of this proceeding, by which I mean where it sits on the spectrum between civil and criminal proceedings. The High Court categorised contempt proceedings as civil proceedings. However, the respondents sought to distinguish this proceeding from CFMEU to contend that the respondents may resist discovery by the corporate respondents, on the basis that it will adversely affect the rights of the individual respondents (journalists and editors), such rights being identified by reference to principles applicable in criminal trials, pre-trial criminal procedure and criminal investigations. For reasons explained later, I reject that submission. This proceeding is not distinguishable from CFMEU, which I am bound to apply and in which this contention was emphatically rejected.

  1. The respondents opposed the categories of discovery sought on the following grounds:

(a)   because discovery cannot be compelled in the proceeding against an individual respondent, it cannot be compelled against the corporate respondents for the purposes of a joint trial of both corporate and individual respondents;

(b)  alternatively, the categories sought are either irrelevant or not amenable to discovery; or

(c)   alternatively, discovery ought not to be compelled in the discretion of the court.

Compellability of discovery

  1. The respondents submitted that, critically, the applicant elected to bring a single proceeding against all respondents, corporate and individual. They contended that, at least where allegations are made against corporate and individual respondents in respect of the same impugned publication, each respondent is an ‘associated accused’ within the meaning of s 17 of the Evidence Act2008 (Vic).[3] The submission was that s 17 provided that an associated accused is not compellable to give evidence for or against an accused in a criminal proceeding, unless they are tried separately from the accused.

    [3]By reference to the example that I am adopting in this ruling, that is to say that the first and third respondents are each an associated accused of the other.

  1. Alternatively, the respondents sought to invoke the general discretion under s 135 of the Evidence Act as a basis for the court to refuse the application for discovery. The contention was that discovery should be refused if its purpose is to compel the production of documents that would not be permitted to be tendered at trial.

  1. The respondents contended that two consequences followed the fact that the proceeding would be conducted as a joint trial:

(a)   the corporate respondents cannot be compelled to give evidence for or against the individual respondents; and

(b)  the corporate respondents cannot be compelled to produce documents that could be tended in evidence by the applicant in support of charges that she has brought against the individual respondents, who are each an associated accused of the corporate respondents.

  1. The respondents cited Clayton Utz v Dale[4] in support of this proposition, but that decision provides no assistance to the submission. The respondents’ pinpoint reference to the judgment went to a different issue, and was a passage explaining the reasoning of the primary judge that the privilege against self-incrimination applied not only to oral evidence, but also to the discovery and production of documents, and that the entitlement to the privilege would not be deemed to have been voluntarily waived by having commenced a proceeding as a plaintiff.[5]

    [4](2015) 47 VR 48.

    [5]Ibid 71–2 [49].

  1. The applicant submitted, correctly, that questions about the pre-trial application of the Rules cannot be conflated with issues about the compellability of witnesses in a criminal trial, or discretions affecting the reception of evidence in trials generally. Section 17 applies only in a criminal proceeding. Legal principles governing compellability of a particular person (not necessarily an accused) as a witness to give evidence at a particular trial have no application to civil discovery and are limited in their application to the conduct of a criminal trial.

  1. The respondents contended that the applicant’s answer to this submission, that the proceeding is an ‘ordinary civil proceeding,’ was manifestly wrong. Allegations of criminality (including contempt) are determined by reference to the criminal onus of proof, and criminal penalties are sought by the applicant in the proceeding. Accordingly, the companion principle applies, and the applicant is not entitled to obtain assistance from the respondents in proving her case, whether the matter is progressed using civil procedure rules or otherwise.

  1. I pause to explain the respondents’ reference to the companion principle. In Lee v The Queen (‘Lee’), the High Court affirmed the fundamental principle of the common law that it is for the prosecution to prove the guilt of an accused person as ‘an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.’[6] The High Court went on to say:

The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof.[7]

[6](2014) 253 CLR 455, 466–7 [32].

[7]Ibid 477 [33].

  1. The respondents further submitted that the corporate respondent’s discovery may open a train of enquiry, to the prejudice of an individual respondent, who has a  right to avoid being compelled to assist the applicant in the discharge of her onus of proof.

  1. Even were that so, the individual respondent has no right to interfere in the applicant’s entitlement to discovery from another party. The individual respondent’s right is to avoid being compelled to assist the applicant in the discharge of her onus of proof. This right is fully respected because no discovery is sought from individual respondents.

  1. To use the third respondent (a journalist) as an example, it is not to the point that she has, by the respondents’ response to prosecution opening, claimed reliance on the privilege against self-incrimination. The documents sought by the applicant’s discovery categories are not her documents. Her privileges are not threatened.[8] The first respondent is permitted to state sufficiently the grounds for any claim of any privilege to which it is entitled, but cannot claim the privilege to which another party is entitled. Conversely, the third respondent cannot claim her privilege against self-incrimination in respect of the documents of another.

    [8]The corporate respondents are separate legal entities and the privilege against self‑incrimination applies only to the production of documents by the person who would be imperilled. See Rochfort v Trade Practices Commission (1982) 153 CLR 134, 145, 147; R v Ronen (2004) 62 NSW LR 707, 726-7 [99].

  1. What may be significant about this submission is that the individual respondents—represented by the same solicitors and counsel as the corporate respondents—apparently join in the application by the corporate respondents to resist the discovery sought from them. As the applicant contended, it is doubtful that the individual respondents have standing to contest this discovery application in the manner they apparently do, since they are not parties to it and are not required to discover documents in their possession, custody or control. Similarly, it is of no assistance to a corporate respondent to raise issues concerning potential prejudice to another (the individual respondents) as a basis to resist an application for it to make discovery since they cannot claim the privileges. In any event, as will become clear shortly, it is not necessary to determine this issue for the purpose of this application.  Representation by the same legal team cannot obscure the differing interests of the corporate and individual respondents.

  1. Sections 17 and 135 of the Evidence Act have no application to civil discovery processes, and may only become relevant when evidence is to be given at a trial. So much is clear from the text of each section. Section 17 states:

17       Competence and compellability—accused in criminal proceedings

(1)       This section applies only in a criminal proceeding.

(2)An accused is not competent to give evidence as a witness for the prosecution.

(3)An associated accused is not compellable to give evidence for or against an accused in a criminal proceeding, unless the associated accused is being tried separately from the accused.

(4)If a witness is an associated accused who is being tried jointly with the accused in the proceeding, the court is to satisfy itself (if there is a jury, in the jury's absence) that the witness is aware of the effect of subsection (3).

Section 135 states:

135     General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

(a)       be unfairly prejudicial to a party; or

(b)       be misleading or confusing; or

(c)       cause or result in undue waste of time; or

(d)unnecessarily demean the deceased in a criminal proceeding for a homicide offence.

  1. It is presently unnecessary to consider whether s 17 might be enlivened at the trial of this proceeding. That question should be reserved until it properly arises, if at all. Discovery and inspection are quite different processes from calling evidence at trial. A possible objection at a future trial to the use of documentary evidence against an individual respondent is no answer to an application for discovery against a corporate respondent.

  1. Further, as the plurality observed in CFMEU:

… no question arises under r 29.07(2) of the Rules as to the appellant being required to give evidence against itself as a witness for the prosecution. The documents required to be discovered speak for themselves. In the nature of things, such documents have been brought into existence in the course of the conduct of the corporation’s affairs by or through other (natural) persons acting in the service of the corporation. In such a case, the concerns that testimonial admissions may be extracted by oppressive conduct and that confessions of dubious reliability will be adduced do not arise. If such concerns were to arise in different circumstances, they would fall to be considered as part of the discretion conferred by the rule.[9]

[9]CFMEU (n 1) 388 [38].

  1. It was not contended that concerns of the type identified by the plurality arise in the present context.

  1. The respondents submitted that the limitations at common law on the accusatorial process illustrate the distinction between the specie of proceedings. As Kiefel J (as the Chief Justice then was) observed in X7 v Australian Crime Commission:

The fundamental principle – that the onus of proof rests upon the prosecution – is as stated in Environment Protection Authority v Caltex Refining Co Pty Ltd, as is its companion rule – that an accused person cannot be required to testify to the commission of the offence charged. The prosecution, in the discharge of its onus, cannot compel the accused to assist it.

The common law principle is fundamental to the system of criminal justice administered by courts in Australia, which, as Hayne and Bell JJ explain, is adversarial and accusatorial in nature. The accusatorial nature of the system of criminal justice involves not only the trial itself, but also pre-trial inquiries and investigations.[10]

[10]X7 v Australian Crime Commission (2013) 248 CLR 92, 153 [159]–[160] (citation omitted) (‘X7’).

  1. The applicant submitted that this submission was misconceived in drawing on the processes of the criminal justice system, and that CFMEU provided the complete answer.

  1. I reject the respondents’ submission on compellability. The ratio of CFMEU is that contempt proceedings are civil proceedings to which the Rules apply according to their tenor. There is no basis identifiable in the Rules for the respondents’ contention that discovery cannot be compelled against the corporate respondents, for the purposes of a joint trial of corporate and individual respondents, on the ground that discovery cannot be compelled in this proceeding against an individual respondent.

Relevance or amenability to discovery

  1. The respondents’ next contention was that the categories sought were either irrelevant or not amenable to discovery, constituted an abuse of process, and ought to be refused. This submission was put in two distinct ways:

(a)   a necessary consequence of the admission of publication by the corporate respondents was that there was no longer any fact relevantly in issue about which discovery could be required; and

(b)  the request for further discovery about an admitted fact was investigatory, to use the language of criminal procedure, or fishing, to use the language of civil procedure.

  1. The respondents contended that the effect of the corporate respondents’ admissions was to reduce the issues in contention. All aspects of the factual matrix pertaining to publication were encompassed in these admissions. The questions for trial, insofar as the corporate respondents were concerned, became whether:

(a)   the admitted publications were contrary to the terms of the proceeding suppression order; or

(b)  the admitted publications, as a matter of practical reality, had a real and definite tendency to prejudice the fair trial of the charges pending against Pell in the ‘swimmers trial’.

  1. What then are the consequences of the corporate respondents’ admissions of publication?  An admission in a pleading generally means that proof is no longer required or permitted of the fact admitted as the fact is no longer in controversy between the parties.

  1. In Pioneer Plastic Containers Ltd v Commissioners of Customs and Excise (‘Pioneer Plastic’), Buckley J held that:

... it is for the plaintiffs to plead the facts in their statement of claim and if, having pleaded them in the statement of claim, the defendants admit all those facts, then there is no issue between the parties on that part of the case which is concerned with matters of fact. Where there is no issue to be decided there is no proper purpose to be served by admitting any evidence...

…

… But that evidence is accepted by the court in a case where there are issues of fact between the parties is no reason for holding that evidence should be admitted where all the facts alleged by the plaintiff are admitted by the defendant".[11]

Pioneer Plastic had been followed in Victoria.[12]

[11][1967] Ch 597, 601–2.

[12]Divcon v Devine Shipping [1996] 2 VR 79, 80; Collie v Merlaw Nominees Pty Ltd (2001) 37 ACSR 361, 379 [94]–[96]; Wimpole Properties Pty Ltd v Beloti Pty Ltd (No 2) [2011] VSC 85, [61]; Gregorich v Khouri & Ors [2020] VSC 5, [10].

  1. Returning to CFMEU and paraphrasing a further observation of the plurality to the present circumstances, if rr 29.07(2) and 29.01.1(3)(c) are given their literal operation, their terms are sufficiently clear to authorise the order for discovery that is being sought by the applicant in this case. The effect of an order under r 29.07(2), as the High Court explained:

… is plainly to override the right of the party against whom it is made to keep its papers private, as well as any entitlement that party might otherwise have to refrain from assisting the other party in the proceedings against it.[13]

[13]CFMEU (n 1) 387 [34].

  1. The pleading alleges that the first and third respondents each published or caused to be published the Herald Sun online article on the internet. The first respondent admitted part of that allegation, namely that it published the Herald Sun online article on 13 December 2018, but otherwise did not admit the allegation. The third respondent did not admit the allegation. The applicant elsewhere alleges that the third respondent was ‘a journalist employed by the first respondent or another company within or a part of the News Corp [sic] group of companies’ and the author of the Herald Sun online article. Although the third respondent denied and did not admit those allegations respectively, the first respondent did not plead to it, and is taken to have denied it.

  1. It is pertinent to now assess the respondents’ contention that nothing remains in issue after the applicant’s allegation of publication was admitted by the first respondent. First, it may be noted that the paragraph contains rolled-up allegations of publication against both the first and the third respondents. The admission by the first respondent that it was the publisher cannot mean that the question of whether the third respondent was the publisher is no longer in controversy between her and the applicant, and that proof of that fact is no longer required or permitted. The allegation of publication by the third respondent remains in issue as she has not admitted that allegation.

  1. The applicant submitted that, in a proceeding with more than one respondent, there was no impediment, either as a matter of principle, or by reason of a directly applicable provision of an Act or the Rules, for an applicant (or a plaintiff) to obtain discovery of documents in the possession of one respondent that are relevant to the applicant’s case against another respondent.

  1. I agree, as the applicant contended, that r 29.01.1(3)(c) makes this entitlement clear. This sub-section provides that discovery is to include ‘documents that adversely affect another party’s case’.

  1. The applicant submitted that the language of the rule is broad. On normal principles regulating scope and effect of the rules pertaining to discovery, there is no impediment whatsoever on discovery being ordered against a respondent if relevant only because of an issue joined between the applicant and another party to the proceeding, such as another respondent.

  1. The documents in categories 1(a)-(e) are relevantly discoverable as documents that may adversely affect another party’s case. They may adversely affect the non-admission by the third respondent of the allegation that she published the Herald Sun online article, either directly or by a train of enquiry that might lead to other evidence that the third respondent published the article.

  1. Different considerations apply to categories 1(f)-(g) and 2, since the documents sought by these categories are not relevant to the fact of publication as such, but rather to the features or characteristics of the admitted publication. Unlike categories 1(a)-(e), those matters relevantly remain in issue between the applicant and the first respondent. These categories of documents are relevant to a different issue and discoverable under either rr 29.01.1(3)(b) or (d). They are relevant to the nature and extent of the potential readership of the publication, which is an issue in the proceeding, as it relates to the Herald Sun online article, against both respondents. Documents that prove the extent of the exposure of the public to the publication or the penetration of the publication into its readership may be documents that adversely affect the first respondent’s own case or that may support the applicant’s case. These issues of fact are not rendered irrelevant by the admission of publication. Evidence about the nature and extent of the potential readership of the publication remains prima facie admissible and documents relevant to these issues are discoverable.

  1. The remaining objections taken to discovery of documents in these categories are objections to form rather than substance. The respondents contended that category 2 requires, in effect, the generation of documents, although there was no evidence before the court that supported this assertion. Even if that were the case, I do not accept the contention that ordering that form of discovery is oppressive or inappropriate. There is every reason to expect that a commercial organisation that earns a major source of its income from advertising revenue could readily supply the information sought.

  1. There is then a proper purpose to be served in requiring the first respondent to discover documents relevant to the circumstances in which the article came to be published, notwithstanding the first respondent’s admission. Whether any particular documents discovered would or would not be admissible against the third respondent at trial is not to the point. Admissibility is an issue to be determined at trial. Discovery is a pre-trial process and is determined by separate criteria, notably relevance. The documents would only cease to be relevant to the case, and therefore not discoverable by the first respondent, if the third respondent admitted the allegation of publication made against her.

  1. The documents sought are relevant and are amenable to discovery. I reject the respondents’ submissions otherwise.

Discretionary considerations

  1. The respondents’ contentions about the relevant discretionary considerations incorporated reference to s 135 of the Evidence Act, but, as noted above, that section has no present application. It is clear from the text of rr 29.07(2) and 29.07(3) of the Rules that the court has a broad, unconstrained discretion whether to order discovery in this proceeding and whether, and how, discovery might be limited. I was not referred to authority touching on the manner of exercise of this discretion other than CFMEU, where the plurality made clear that the respondent (being the CFMEU, not an individual unionist) could be protected from oppressive conduct by the applicant by the exercise of the judicial discretion conferred by the rule.[14]

    [14]CFMEU (n 1) 386 [32].

  1. One factor identified in CFMEU was whether the applicant’s purpose in seeking discovery was proper. The example was given of discovery sought to aid, by oppressive conduct, in extraction of testimonial admissions and confessions of dubious reliability. The court said:

… in the contempt proceeding, the spectre of oppression by the executive government in requiring the accused to assist it in the prosecution of a criminal charge against the accused, especially one launched without adequate investigation by the agents of the state, does not arise. In any case, where an application for discovery in contempt proceedings did give rise to such a concern, the more fundamental concern for the liberty of the subject would be a powerful consideration in the exercise of the discretion whether or not to make an order for discovery.[15]

[15]CFMEU (n 1) 389–90 [44].

  1. The respondents did not allege that the applicant was engaging in oppressive conduct in this way in asking for the discovery that it sought from the corporate respondents. However, I understood the respondents to contend that the contempt proceeding was launched against the individual respondents ‘without adequate investigation by the agents of the state’, and that the rights of the individual respondents encapsulated in the companion principle to the onus of proof in criminal trials and in the privileges against self-incrimination and exposure to a penalty were threatened by coercive discovery orders against the corporate respondents in a manner that warranted the court in its discretion declining to order discovery.

  1. Viewing the discretion more broadly, it ought to be exercised to further the overarching purpose of civil litigation, in accordance with s 9 of the Civil Procedure Act2010 (Vic). That said, the respondents’ contentions were based in notions of propriety in criminal investigative procedure and the companion principle to the criminal onus and standard of proof.

  1. The issues raised appeared to be:

·If there was inadequate investigation by the applicant prior to commencing the proceeding, or obtaining the admission of publication, should discovery be refused on discretionary grounds?

·Will coercive discovery orders in the proceeding undermine the legitimate rights of the individual respondents, as expressed in the companion principle and the privileges?

·Was the applicant abusing the discovery process?

  1. In this context, I return to the issue considered earlier about the civil nature of the proceeding, now well established in respect of contempt proceedings. The respondents rely on the language used in the cases. Those observations are, however, not determinative of the issues presently before me.

  1. A criminal contempt is a common law offence, albeit not part of the ordinary common law.[16] In Re Colina; Ex parte Torney,[17] Hayne J described ‘the cardinal feature of the power to punish for contempt’ as being that it ‘is an exercise of judicial power by the courts, to protect the due administration of justice’.

    [16]Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 115; Ahnee v Director of Public Prosecutions [1999] 2 AC 294, 306.

    [17](1999) 200 CLR 386 at 429 [112] (emphasis in original).

  1. Although not all contempts are criminal—some are said to be a civil wrong and a matter between parties—all proceedings for contempt must be realistically seen as criminal in nature. The proceeding suppression order was made in a criminal trial to protect an accused person’s right to a fair trial, in a subsequent trial, by protecting from publication information from that first trial. Noting how the applicant puts her case and the relief she seeks, this proceeding is plainly criminal in nature, and unarguably related to protection of the due administration of justice.

  1. The respondents noted that the relief sought by the applicant is punitive, rather than coercive or remedial. The proceeding may be described as ‘accusatory’, in the sense that the respondents are charged with conduct warranting punishment, the contempts alleged in the proceeding are criminal contempts, and the applicant must establish the elements of the contempts beyond reasonable doubt. The proceeding is a penal proceeding, yet that description will not take the proceeding out of the civil jurisdiction and the purview of the Rules. As Nettle J observed in CFMEU:

The contempt alleged in this case is a criminal contempt. … The relief which is sought is thus punitive, not coercive or remedial; and, therefore, the proceeding is a penal proceeding. Even so, it is a civil proceeding. It is tried by judge alone and, subject to the qualification explained below, the applicable rules of procedure are the rules of procedure which apply to other civil proceedings.[18]

[18]CFMEU (n 1) 396 [66].

  1. A respondent is not asked to plead to a charge of contempt, but instead to admit, not admit or deny the allegations made by the applicant in her statement of claim. As was noted earlier, the respondents effectively submitted that the proceeding is an accusatorial civil proceeding in which the companion principle applies mutatis mutandis. An individual respondent in a contempt proceeding need say or do nothing more than plead a defence, which may be done by non-admission or denial.

  1. CFMEU is clear authority against the respondents’ contentions. In that case, the CFMEU contended that having regard to the companion principle, discovery under the Rules could not, and had not, been validly ordered. The plurality identified the CFMEU’s argument:

The appellant’s principal argument began with the contention that it must now be taken to be established that in all proceedings for contempt of court the applicable standard of proof is proof beyond reasonable doubt. It was said that inherent in this standard of proof is a requirement that the moving party cannot compel the party charged with contempt to testify or produce documents to assist it in making its case. This requirement was referred to as “the companion principle”.[19]

Rejecting this contention, the plurality stated:

… The companion principle is a “companion” of criminal trials, not of the standard of proof ordinarily applicable in such trials.

Secondly, no question arises under r 29.07(2) of the Rules as to the appellant being required to give evidence against itself as a witness for the prosecution. The documents required to be discovered speak for themselves...[20]

[19]CFMEU (n 1) 385 [23].

[20]CFMEU (n 1) 387–8 [37]-[38] (emphasis included in original).

  1. The plurality concluded that the proceeding is not removed from the civil jurisdiction and the purview of the Rules by reference to its similarities with criminal trials concluding:

… But no criminal trial is in prospect here, and so there is no reason why the language of r 29.07(2) should not be applied according to its tenor in the contempt proceeding.[21]

[21]CFMEU (n 1) 390 [47].

  1. A submission based on illegitimate interference with the companion principle must distinguish the principle established by CFMEU from the facts of the present application.

  1. I see no basis for that. Further, the submission needed to confront the fact that substantially the same submission was unanimously rejected in CFMEU. Consequently, unlike cases concerning the companion principle, this proceeding is a civil proceeding. The respondents cited no authority for the contrary proposition and could not identify any seriously considered dicta[22] of the High Court that might relevantly distinguish the principle from application in the present proceeding. The cases that were cited mostly predated CFMEU.

    [22]In the sense described by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.

  1. The High Court observed in the more recent case of R v IBAC that earlier observations about the companion principle were set in the context of a discussion of the ‘balance struck between the power of the State to prosecute and the position of an individual who stands accused.’[23] The High Court also referred to CFMEU, where the plurality referred to the passage from Lee,[24] and said that the companion principle:

… is an 'aspect of the accusatorial nature of a criminal trial in our system of criminal justice' whereby an accused person cannot be compelled to assist’ the prosecution to make its case. The companion principle is a 'companion' of criminal trials. (emphasis in original).[25]

[23](2016) 256 CLR 459, 472 [45] (emphasis added) (‘R v IBAC’).

[24]See [30] above.

[25]R v IBAC (n 23) 472 [46], citing CFMEU (n 1) 387–8 [37].

  1. Such distinctions between this proceeding and CFMEU, as may be identified, appear immaterial. First, the applicant is a prosecuting authority. Boral was a private litigant. The applicant may gather evidence by compulsory processes of search and seizure before making a decision to charge a defaulting party with contempt. In the relevant sense, the respondents contended that the applicant was a party to the proceeding, a criminal trial, in which the proceeding suppression order was made at the request of the prosecution.

  1. The High Court did not suggest in CFMEU that a prosecuting authority, when seeking to institute contempt proceedings, must use its investigative powers before filing the proceeding.  That issue could not arise on the facts of that case.

  1. The question may be whether the ‘spectre of oppression’ lay in the filing of a civil process absent adequate pre-procedure investigation, in the same way that laying a criminal charge against an accused, especially one launched without adequate investigation by the agents of the state, might raise that spectre. The respondents contended that this analogy was akin to that of the application for discovery against the corporate respondents. However, notwithstanding that the applicant is not, in the relevant sense, a private litigant, the third respondent cannot assert limitations based on the accusatorial process identified as applying in criminal proceedings to resist discovery by the first respondent. Absent a statutory regime, compulsory evidence gathering processes in the criminal justice system may be limited to the investigative phase.[26] In the present context, that is the period prior to commencing the contempt proceeding, but there is no relevant difference between the positions of the private litigant and the DPP.

    [26]Compare X7 (n 10); R v IBAC (n 23); Strickland v Commonwealth Director of Public Prosecutions (2018) 361 ALR 23; Commonwealth v Helicopter Resources Pty Ltd (2020) 377 ALR 191.

  1. The applicant in a civil proceeding may exercise rights to preliminary discovery processes under the Rules according to their tenor.[27] Unlike a private litigant, the applicant might have chosen to have obtained the documents that she now seeks by an evidence gathering investigation using compulsory processes of search and seizure or, alternatively, like a private litigant, she might have made an application for preliminary discovery. The applicant apparently chose not to adopt either of those processes. In any event, compulsory evidence gathering processes in the criminal justice system have no present relevance.

    [27]Supreme Court (General Civil Procedure) Rules 2015 (Vic) O32.

  1. The plurality’s reference to the spectre of oppression by the executive government did not arise in CFMEU because the respondent was a corporate entity. The plurality stated:

There are other differences in addition to those referred to by their Honours, not the least important of which is that contempt proceedings are initiated, not by the executive government, but by private parties to an indisputably civil proceeding. A party to a civil proceeding who wishes to complain that the other party has breached an order of the court is not in the same position as a prosecuting authority, which can gather evidence by compulsory processes of search and seizure before making a decision to charge the defaulting party with contempt. Further, in the contempt proceeding, the spectre of oppression by the executive government in requiring the accused to assist it in the prosecution of a criminal charge against the accused, especially one launched without adequate investigation by the agents of the state, does not arise. In any case, where an application for discovery in contempt proceedings did give rise to such a concern, the more fundamental concern for the liberty of the subject would be a powerful consideration in the exercise of the discretion whether or not to make an order for discovery.[28]

[28]CFMEU (n 1) 389–90 [44].

  1. The respondents contended that coercive discovery that I have found to be legitimately sought against corporate respondents was an abuse of process, or at least ought to be refused in the exercise of discretion, because of its tendency to undermine the rights of the individual respondents afforded under the companion principle. That submission fails because, as CFMEU established, the accusatorial nature of the proceeding and the companion principle, which is a ‘companion’ of criminal trials, have no effect on the application of the Rules as the civil procedure for contempt trials.[29] As I have explained, the application for discovery is of a kind contemplated by the Rules and unexceptional as an incident of pre-trial civil process.

    [29]Ibid 390 [45]–[46].

  1. I was not persuaded by the respondents that the applicant was engaging in oppressive conduct towards the individual respondents by seeking discovery from a source other than them, such that there was a proper basis in the exercise of discretion to refuse discovery. The respondents contended that compulsory disclosure by discovery from the corporate respondents of documents that were no longer relevant was, in substance, an abuse of the discovery process, because the applicant’s purpose was to require discovery of documents relevant to the issue that the individual respondents were also publishers after the proceeding had been commenced, rather than by the use of investigative powers to establish a proper basis for the allegation before instituting the proceeding.

  1. The third respondent (and all individual respondents) was not entitled to assert the benefit of protection through the companion rule. It is not in contention that she is entitled not to incriminate herself or expose herself to a penalty, but she is not being compelled as a party charged with contempt to testify or produce her documents to assist the applicant in making the case against her.

  1. Another point of possible distinction is that the respondents were not parties to the criminal trial, unlike the CFMEU. The applicant, who was the prosecutor in the criminal trial, now complains that an order of the court made in that criminal trial (the proceeding suppression order) was breached. That order was not limited in its application to the parties to the primary proceeding. It was directed to the community at large, including the media, and the contempt proceeding is brought against non-parties to the criminal trial at whom the proceeding suppression order was directed. The media generally had certain opportunities, which they exercised,[30] to be heard in relation to the proceeding suppression order and, while strangers to the criminal trial, cannot be regarded as strangers to the proceeding suppression order in the relevant sense. These circumstances are not material to the discretion whether to make a discovery order.

    [30]DPP v Pell (Suppression Order) [2018] VCC 905.

  1. The respondents also contended that CFMEU was distinguishable because there was only one respondent (a body corporate), unlike the present proceeding, such that no questions arose in respect of associated accusation or the invocation of the court’s processes to investigate whether there is a proper basis for charges against individual accused. As I have already explained, these considerations are not relevant to the discovery process and provide no basis to distinguish the principle explained in CFMEU. The respondents did not point to any passage in the judgments that might support their suggestion that multiple respondents and/or a mix of corporate and individual respondents would deflect the court’s reasoning to another path.

  1. For these reasons, I was not persuaded that I ought, in the exercise of discretion, to refuse the discovery sought.

Conclusion

  1. I am satisfied that the application for discovery from the corporate respondents of documents in the categories 1(a)-(e), and all other categories to which this ruling will apply mutatis mutandis, is permissible in this proceeding.

  1. However, I am not minded to order discovery in the form sought by the applicant in categories 1(f)-(g) and 2. Instead, I will order that each corporate respondent who has admitted publication make discovery by filing an affidavit made by a deponent with personal knowledge of the manner in which data is stored and capable of extraction or reporting from the applications/programs used to publish and/or remove the admitted publications:

(a)   stating the date of upload onto the internet and the date of removal from the internet (if applicable) of each article that it has admitted was published; and

(b)  making discovery of a document or documents for each article that it has admitted was published that identifies, in the most granular manner possible,[31] the dates, times and/or location of each time the article was accessed online, save that, a relevant respondent may be excused from answering this request if able to state in its response that it never was, or is not now, possible for it to generate from its records, including its electronic systems, a document identifying this information in any way.

[31]For example, it may be possible for a corporate respondent to generate a document (e.g. an Excel spreadsheet) that contains a row for each time an article was individually accessed that contains the corresponding date, time and location. Alternatively, it may only be possible to generate a document that shows the information at in a summary level (e.g. a report that identifies the number of times and locations from which an article was accessed for each day that the article was available online). The deponent ought to explain what is, or is not, possible.

  1. The applicant also sought information about the number of subscribers to each of the relevant publications (e.g. the Herald Sun) between certain dates, explaining that such information identified a number of persons who were able to view the article without proceeding through a paywall. This information is too remote from the issues in dispute to have any probative value and is information likely to otherwise be incorporated in the publisher’s response to the second category I have nominated. Several of the relevant publications appeared in newspapers. For these publications, the circulation is likely to be relevant. I will order that the corporate respondents who have admitted publication that appeared in a newspaper make discovery by filing an affidavit identifying the circulation of the relevant publication on the dates that each article was published.

Discovery from applicant

  1. I turn next to the categories of discovery sought by the respondents from the applicant. The respondents sought discovery of documents in seven categories:

1.All documents recording or evidencing requests or submissions by or on behalf of Cardinal Pell (or his legal representatives) to the Director (or her office) for the discontinuance of the swimmers’ trial or the withdrawal of any or all of the charges that were to be tried in the swimmers’ trial.

2.All documents recording or evidencing requests or submissions (including without limitation within the Office of Public Prosecutions or by Victoria Police) relating to the discontinuance of or any consideration of possible discontinuance of the swimmers’ trial or the withdrawal or possible withdrawal of any or all of the charges that were to be tried in the swimmers’ trial.

3.All documents recording or evidencing the Director’s (and her office’s) consideration of all requests and submissions referred to in paragraphs 1 and 2.

4.All correspondence between the Director (or her office) and Cardinal Pell (or his legal representatives) or any other party responding to or referring to all such requests or submission set out above at paragraphs 1 and 2.

5.All documents recording or evidencing the consideration and deliberations by the Director (or her office) leading to the decision to discontinue the swimmers’ trial and the withdrawal of the charges that were to be tried on the swimmers’ trial and recording or evidencing the decision itself.

6.All correspondence between the Director (or her office) and Cardinal Pell (or his legal representatives) in the period between 11 December 2018 and 26 February 2019 recording or evidencing any communication regarding international media or social media reporting of the verdict in the George Pell ‘cathedral trial’ proceeding.

7.All correspondence between the Director (or her office) an any other person or organisation in the period between 11 December 2018 and 26 February 2019 recording or evidencing any communication regarding international media or social media reporting of the verdict in the George Pell ‘cathedral trial’ proceeding.

  1. These categories can conveniently be described as:

(a)   documents relating to the abandonment of the swimmers trial (categories 1-5); and

(b)       documents relating to international and social media reporting the verdict in the cathedral trial (categories 6-7).

  1. The respondents submitted that the applicant owed a duty of disclosure pursuant to provisions of the Criminal Procedure Act.[32] The respondents also submitted that the applicant owed an underlying ethical obligation to disclose all relevant material, both exculpatory and inculpatory, and is subject to the common law requirements obliging disclosure of information that might reasonably relate to issues at trial. It is clear from the authorities cited in support of these propositions that the respondents’ contentions are not based on Order 29 of the Rules applicable in civil proceedings, but rather on the rules for pre‑trial disclosure in criminal proceedings. For reasons I have already given, this approach is misconceived.

    [32]Criminal Procedure Act 2009 (Vic) ss 110(1)(e)(iii), 111, 185 and 416.

  1. By a reference to a notation in ‘Other Matters’ in my order of 13 February 2020, the summary of the prosecution opening and the response thereto was to be in the form contemplated by ss 182 and 183 of the Criminal Procedure Act. Although I directed an exchange of documents in that form (preferring that course to allowing the parties to seek further and better particulars of each other’s pleading), I neither received submissions on, nor ruled, that the proceeding is one governed by the Criminal Procedure Act. The principle established in CFMEU applies and the direction that the parties exchange documents in the form ordered was not intended to suggest otherwise.

  1. The proper approach to the respondents’ request is that set out in paragraphs [11]–[12] above, subject to consideration of whether discovery ought to be refused or limited by the court in exercise of its discretion.

  1. The applicant objects to these categories of discovery on the basis of relevance. It is pertinent to note the following dates:

(a)        as at 12 and 13 December 2018 (the dates of the alleged publications), the swimmers trial was listed to commence in the County Court on 11 March 2019;

(b)       on 26 February 2019, a notice of discontinuance was filed in the County Court on behalf of the applicant in respect of the swimmers trial; and

(c)        a suppression order made by Chief Judge Kidd remained on foot until 26 February 2019.

  1. The respondents contended that the categories of documents sought are relevant both to the sub judice contempt charges and to questions of potential penalty. In Hinch v Attorney General (Vic),[33] Toohey J observed that it is ‘clear enough’ in cases of sub judice contempt that the question whether or not a contempt has been committed is one to be determined at the time of publication and not by reference to subsequent events. Further, the question that arises is an objective one; whether the impugned action did, as a matter of practical reality, have a real and definite tendency to interfere with the due course of justice in relation to the swimmers trial.

    [33](1987) 164 CLR 15, 70.

  1. I understood the respondents to be contending that the categories may reveal documents on which they might rely or which might be said to adversely affect the applicant’s case. However, it is not possible to discern either from their pleadings or submissions on this application the sense in which it is said that the documents may have that effect.

  1. They argued that if the applicant had been asked to abandon, given consideration to abandoning, or in fact decided to abandon, the swimmers trial at the time of the impugned publications, then documents evidencing those matters would be relevant to whether, and if so, the extent to which, at the time of publication, any of the impugned publications had, as a matter of practical reality a real and definite tendency to prejudice the administration of justice. The submission plainly revealed its speculative nature. It cannot be contended that any documents in these categories relate to a question in the proceeding whether in the sense of being directly relevant or in the sense of leading to a train of inquiry.

  1. What then is the party’s case or what are the facts in issue to which documents must relate to be discoverable under the rule?  Facts in issue are usually established in civil proceedings by reference to the pleadings, which, on this question, are unhelpful, and the respondents’ submission is speculative as to the existence and relevant content of any documents. It was framed by reference to a disclosure obligation based in prosecutorial fairness.

  1. Although the question of prejudicial tendency is to be determined at the time of publication, the respondents contended that documents coming into existence after the time of publication may be probative of whether an impugned publication or broadcast had such a tendency at the relevant time. This proposition is too abstract to be anything other than a further indication of impermissible fishing. The proposition that post-event facts may rationally affect the probability of the existence of a fact may, in general terms, be accepted. However, I was not persuaded that there could be any such effect on the particular question of the objective assessment of the prejudicial tendency of a publication or broadcast by documents falling into the identified categories.

  1. Assessment of prejudicial tendency of a publication cannot be affected by the subjective thinking of either the applicant or of Pell and his advisers. Whether that tendency is present, as a matter of practical reality, is for the court to determine.

  1. Months after the impugned publications, and immediately following a ruling by the trial judge that certain prosecution evidence was not admissible, the prosecution decided to discontinue the swimmers trial. The respondents’ submission that these documents are relevant is speculative, in particular, as to whether the applicant was considering withdrawing the swimmers trial charges prior to that ruling, and at what point in time such consideration was occurring. The documents would also be irrelevant to the objective assessment of whether the publications, as a matter of practical reality, had a real and definite tendency to interfere with the due administration of justice. I have not been persuaded that any documents falling into the first five categories sought by the respondents are documents upon which the respondents could rely, or are documents that would adversely affect the applicant’s case, in respect of the tendency of the publications. In relation to the issues at the trial of this proceeding, any documents following within these categories would be irrelevant.

  1. Further, the respondents contended that such documents would be relevant to questions of potential penalty because, as events unfolded, there was no swimmers trial in which the due administration of justice could in fact have been prejudiced by any of the impugned publications. The respondents also submitted, again speculatively, that the applicant’s decision to abandon the swimmers trial, whenever it was made, was not informed by any of the impugned publications.

  1. Turning to categories six and seven, the respondents contended that the applicant has apparently taken no action against any international media organisations who reported the verdict in the cathedral trial, or any persons or organisations who posted reports of or references to reports of the verdict in the cathedral trial via social media, including those who did so prior to the impugned publications.

  1. In that context, the respondents seek correspondence between the applicant and Pell’s legal representatives, or any other person or organisation, in the period from 11 December 2018 to 26 February 2019 ‘recording or evidencing any communication regarding international media or social media reporting of the verdict’ in the cathedral trial.

  1. It may be accepted that the fact that there was publication in international media or on social media that might be said to breach the proceeding suppression order, or have the relevant prejudicial tendency, may be relevant context in which the impugned publications and their tendency is to be assessed. Thus, the circulation of publications, both internationally and on social media, before any of the impugned publications may be relevant. However, those publications are public documents. The respondents have made admissions about the existence of international media publications on or around 13 December 2018.

  1. The discovery categories are not directed to that question or those publications. Rather, what is sought is private correspondence. The assessment of probability of the impugned publications having the relevant tendency cannot be rationally affected (directly or indirectly) by any correspondence that passed between the applicant and other persons or organisations (which presumably is a reference to international media organisations or social media users) for the same reasons as apply to correspondence with Pell’s legal representatives.

  1. The respondents put their argument as follows:

The fact that the verdict in the cathedral trial was widely circulating both internationally and on social media before any of the impugned publications and broadcasts is relevant to whether those publications and broadcasts had, as a matter of practical reality, a real and definite tendency to interfere with the administration of justice in the swimmers’ trial. Further, any attempts made by the Applicant to prevent the continued circulation of reports of the verdict, or references to reports of the verdict, by international or social media, are also relevant. To put it colloquially, if, as appears plain, the ‘cat was out of the bag’ prior to any of the impugned publications and broadcasts, and there was no means of putting the cat back in the bag, then those matters are relevant both to the tendency of the impugned publications and broadcasts to prejudice the administration of justice, and to potential penalties. Whether the Applicant and Cardinal Pell considered the international and social media to have prejudiced the swimmers trial, and corresponded in relation to that matter or its implications, is also relevant.

  1. I cannot accept this submission. It would turn on subjective views expressed in private correspondence, assuming such documents exist. It suggested that if a publication prior in time to an impugned publication had the relevant tendency, private correspondence about that other publication could rationally affect the objective assessment of the tendency of an impugned publication. Further, if valid, it must follow that the same argument would be available to each of the respondents in respect of each other publication alleged in the proceeding for which they were not responsible. The tendency to prejudice the due administration of justice is not assessed in this fashion. If that were so, each of the separately publishing respondents would be separately represented.

  1. The documents might be relevant to the question of penalty. I need not presently form a view about that, as I propose to deal firstly with the question of whether there has been contempt, and then deal with penalty in a separate hearing. It will then be possible to make a more informed assessment, at a later point in time, about the relevance of such correspondence in that context.

  1. For these reasons, the respondents’ application for discovery in accordance with the categories that it has submitted is refused.

Adequacy of respondents’ pleading

  1. I now turn to the final question of the adequacy of the pleadings. Must the respondents provide a further and better defence to the amended statement of claim and a better response to the applicant’s summary of prosecution opening? I have not been persuaded that they should.

  1. The applicant perceived a risk that she will not understand how the respondents will put their case at trial and may be caught by surprise. She submitted that civil proceedings are not trials by ambush and she is entitled to further particularisation of the respondents’ defence and of their response to the prosecution opening. The applicant relied on the pleading rules set out in Order 13 of the Rules, and on the overarching obligations to seek to narrow the issues in dispute, and to conduct themselves so as not to waste time, money and public resources.[34] Consequently, each respondent was obliged in this proceeding to identify any affirmative case or positive defence to be relied on.

    [34]Civil Procedure Act 2010 (Vic) ss 19, 23–25.

  1. The applicant also drew attention to a suggestion made by the respondents at an early case management conference that questions may arise under the Charter of Human Rights and Responsibilities Act2006 (Vic) or that the implied constitutional right to freedom of discussion of government and political matters might be applicable. The applicant noted that each of these issues would require consideration and advance preparation, including notices under relevant legislation.[35]

    [35]Judiciary Act1903 (Cth) s 78B; Charter of Human Rights and Responsibilities Act2006 (Vic) s 35.

  1. The applicant has not identified any specific respect in which the respondents’ defences in the proceeding have not been clearly articulated, save to submit that the individual respondents who might be intending to contend that they were not publishers, in the required legal sense, ought to give proper notice by pleading and particularising exculpatory matters on that and any relevant question.

  1. The respondents stated that there are no affirmative defences to the relevant allegations of contempt in the proceeding beyond those referred to, and those defences should be, but have not been, raised on the pleading. The respondents accepted that the applicant is entitled to proceed in the basis that no defence is being raised based on the Charter or on implied constitutional rights. Any such defences would not fall within the category of defences where the particulars of them may be withheld until the close of the prosecution case,[36] for that was submitted by the respondents to be the correct approach open to them in this proceeding.

    [36]ASIC v Plymin (2002) 4 VR 168 (‘Plymin’).

  1. Bearing in mind that the applicant bears the burden of proving the alleged contempts beyond reasonable doubt, denials and non-admission of alleged facts are not inappropriate. It follows from the privilege against self-incrimination that the individual respondents cannot be compelled to provide information to the applicant that is inconsistent with the preservation of that privilege until after the closure of the applicant’s case. A defendant who is a natural person and who wishes to run a positive case is not required to plead it until after the plaintiff’s case is concluded.[37]

    [37]ASIC v Mining Projects Group Ltd (2007) 164 FCR 32, 37–8 [13] (‘Mining Projects Group’); In the matter of Water Wheel Mills Pty Ltd (Supreme Court of Victoria, Mandie J, 22 June 2001, unreported); CC Containers v Lee (No 2) [2012] VSC 149; Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) (controllers apptd) v Woolridge (No 2) (2012) 93 ACSR 130, 154 [115], 156 [126].

  1. This principle is best illustrated by the civil penalty cases.

  1. In Australian Securities & Investments Commission v Mining Projects Group Ltd & Ors,[38] the applicant sought civil penalties against corporate directors who had, by their pleadings, reserved their rights to claim penalty privilege as well as setting up a positive case by admitting and asserting certain facts. Particulars were provided of many allegations but the applicant requested further and better particulars of the defence, which the defendants declined to provide, relying on the privileges. Finkelstein J observed:

There is a potential problem if, as in this case, a defendant wishes to run a positive case. Ordinarily a positive case must be raised in the defence. Whether it must be raised in a defence in a civil action to recover a penalty is by no means clear. The view I favour is that there can be no such requirement as it would be inconsistent with the privilege. On the other hand, if a defendant who wishes to run a positive case is required to plead his case that can be accommodated while maintaining the privilege. What should occur is that the defendant should be entitled to rely on the privilege until the plaintiff’s case is concluded. If at that point the defendant decides to run a positive case he can deliver an amended defence that will outline his case. In an exceptional case the judge may grant a short adjournment to allow the plaintiff time to prepare, if he is otherwise taken by surprise. In most cases that will not be necessary. By the time the plaintiff has closed his case the nature of the defence will usually be apparent. That is the experience of those who prosecute criminal cases. The advocate who runs a civil penalty proceeding should be equally adept at dealing with the defendant and his witnesses without knowing in advance every word they are about to say.

[38]Mining Projects Group (n 37).

  1. In contempt proceedings of the present type, I consider the solution adopted by Finkelstein J, and followed in the civil penalty cases, to be appropriate to preserve for individual respondents the efficacy of their privilege claims.

  1. The respondents also cited Australian Securities & Investments Commission v Plymin.[39] In an action against certain company directors for pecuniary penalties under the Corporations Law, the plaintiff sought an order that the defendants file and serve all affidavits and statements of evidence upon which they wish to rely, other than those of the defendants themselves. Mandie J refused the application, noting that the privilege against exposure to a penalty extends to protect the defendants from being required to provide evidence of other witnesses, including expert witnesses, before the close of the plaintiff’s case. His Honour added that were he wrong about the scope of the privilege, he would otherwise be persuaded in the exercise of his discretion to refuse to make the order sought, notwithstanding that it may lead to procedural and forensic disadvantages.[40]

    [39]Plymin (n 36).

    [40]See also Australian Property Custodian Holdings Ltd (in liquidation) (Receivers and Managers appointed) (Controllers appointed) v Woolridge & Ors (2012) VSC 576; CC Containers Pty Ltd v Lee [2012] VSC 149.

  1. I am not persuaded that the respondents’ defences are inadequate or require further particularisation. Save for the rule that the individual respondents who wish to run a positive case are not required to plead it at this point as I have just explained it, the respondents will otherwise be confined to their defence unless the Court is persuaded to exercise a discretion to permit amendment at a later point in time.

Conclusion

  1. I will order that the respondents make discovery of the categories sought by the applicant with the modifications identified above. I invite the applicant to submit a minute of order that reflects my ruling across the full scope of its request for discovery.

  1. I will refuse the applications made by the respondents for discovery, and the applicant for the filing of an amended defence and response to summary of prosecution opening.

  1. The parties agreed that a case management conference about the procedure for and conduct of that trial will be appropriate, following the delivery of this ruling. Accordingly, I will list the proceeding for a further case management conference on Tuesday 29 September 2020 at 9:30am.

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CERTIFICATE

I certify that this and the 34 preceding pages are a true copy of the reasons for ruling of the Honourable Justice John Dixon of the Supreme Court of Victoria delivered on 23 September 2020.

DATED this twenty-third day of September 2020.

SCHEDULE OF PARTIES

THE QUEEN (ON THE APPLICATION OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

THE HERALD AND WEEKLY TIMES PTY LTD

First Respondent

DAMON JOHNSTON

Second Respondent

CHARIS CHANG

Third Respondent

NEWS LIFE MEDIA PTY LTD

Fourth Respondent

QUEENSLAND NEWSPAPERS PTY LTD

Fifth Respondent

SAM WEIR

Six Respondent

THE GEELONG ADVERTISER PTY LTD

Seventh Respondent

ANDREW PIVA

Eighth Respondent

NATIONWIDE NEWS PTY LTD

Ninth Respondent

BEN ENGLISH

Tenth Respondent

LACHLAN HASTINGS

Eleventh Respondent

ADVERTISER NEWSPAPERS PTY LTD

Twelfth Respondent

MICHAEL OWEN-BROWN

Thirteenth Respondent

FAIRFAX MEDIA LIMITED

Fourteenth Respondent

THE AGE COMPANY PTY LTD

Fifteenth Respondent

ALEX LAVELLE

Sixteenth Respondent

BEN WOODHEAD

Seventeenth Respondent

PATRICK O’NEIL

Eighteenth Respondent

MICHAEL BACHELARD

Nineteenth Respondent

FAIRFAX MEDIA PUBLICATIONS PTY LTD

Twentieth Respondent

LISA DAVIES

Twenty-first Respondent

MICHAEL STUTCHBURY

Twenty-second Respondent

PATRICK DURKIN

Twenty-third Respondent

DANIELLE CRONIN

Twenty-fourth Respondent

FRANZISKA RIMROD

Twenty-fifth Respondent

MAMAMIA.COM.AU PTY LTD

Twenty-sixth Respondent

JESSICA CHAMBERS

Twenty-seventh Respondent

ALLURE MEDIA PTY LTD

Twenty-eighth Respondent

SIMON THOMSEN

Twenty-ninth Respondent

MACQUARIE MEDIA LIMITED

Thirtieth Respondent

CHRIS SMITH

Thirty-first Respondent

RAY HADLEY

Thirty-second Respondent

NINE ENTERTAINMENT CO PTY LTD

Thirty-third Respondent

LARA VELLA

Thirty-fourth Respondent

CHRISTINE AHERN

Thirty-fifth Respondent

DEBORAH KNIGHT

Thirty-sixth Respondent
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Cases Citing This Decision

0

Cases Cited

18

Statutory Material Cited

0

JC Williamson Ltd v Lukey [1931] HCA 15
Clayton Utz (a Firm) v Dale [2015] VSCA 186
Rochfort v Trade Practices Commission [1982] HCA 66