Willshire-Smith, D. v Votino Bros. P/L
[1993] FCA 198
•31 MARCH 1993
Re: DOUGLAS WILLSHIRE-SMITH
And: VOTINO BROS. PTY. LTD.; JACK VOTINO; RALPH VOTINO; JLW (SA) PTY. LTD.;
DAVID C. HALL and PAUL C. MOONEY
No. SG59 of 1992
FED No. 198
Number of pages - 23
Contempt of Court
(1993) 41 FCR 496
(1993) 67 A Crim R 261
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J(1)
CATCHWORDS
Contempt of Court - What constitutes - newspaper advertisement inserted by an applicant inviting complaints about one of the respondents in current proceedings - subsequent letter to an inquiring party complaining about conduct of the respondent - letter highly abusive of another Tribunal and others - whether advertisement and letter or either amounted to contempt of court - question of intent and commission of a contempt.
Federal Court of Australia Act 1976 (Cth), s31(1)
Federal Court Rules, O40 rr 5,6
Plating Company v Farquharson (1881) 17 Ch 49
John Fairfax and Sons Pty. Ltd. v McRae (1955) 93 CLR 351
Hinch v Attorney-General (Vic) (1987) 74 ALR 353
Australian Builders Construction Employees and Builders' Labourers' Federation v Commonwealth of Australia (1981) 37 ALR 470
The St. James' Evening Post case: Roach v Gavan (or Hall) (1742) 2 Akt 469
Attorney-General v Times Newspapers Ltd. (1974) AC 273 Attorney-General v Hislop (1991) 1 All ER 911
HEARING
ADELAIDE, 25 January, 12 February and 22 March 1993
#DATE 31:3:1993
Counsel for the Applicant : Mr B. Fox
Solicitors for the Applicant
Douglas Willshire-Smith : Mr John G. McGinn
Counsel for the fourth, fifth
and sixth Respondents : Mr P.A. McNamara
Solicitors for the Fourth, fifth
and sixth Respondents : Messrs Fisher Jeffries
ORDER
THE COURT DECLARES THAT:
By his conduct in composing and sending the letter of 6 October 1992 to John Karran, Douglas Willshire-Smith is guilty of contempt of court.
THE COURT ORDERS THAT:
The matter stand adjourned sine die for further consideration with respect to consequential orders and the question of penalty.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
O'LOUGHLIN J Motion to commit for Contempt of Court.
In the circumstances that are set out hereunder, the fourth, fifth and sixth respondents have moved the Court on notice of motion supported by a statement of charge wherein they have charged that Douglas Willshire-Smith has, by virtue of the contents of a certain newspaper advertisement and a letter dated 6 October 1992, been guilty of contempt of the Federal Court of Australia. Pursuant to orders made at directions hearings, the parties filed and served affidavits or depositions verified on oath from intended witnesses but as events transpired, neither party sought to lead oral evidence nor to cross-examine witnesses.
Since May 1990, Mr. Willshire-Smith has conducted his newsagency business as a tenant of premises known as shops 5 and 6 in the Parafield Gardens Shopping Centre ("the shopping centre"); that shopping centre is situated at 382 Salisbury Highway, Parafield Gardens. The owner of the shopping centre and Mr. Willshire-Smith's landlord is the first named respondent, Votino Bros. Pty. Ltd., and its managing agent is JLW (SA) Pty. Ltd, the fourth named respondent.
On 2 September 1992 Mr Willshire-Smith filed an application and statement of claim in the Adelaide registry of this Court naming the landlord, the managing agent and certain of their respective directors as respondents to the proceedings. These pleadings, which were prepared by Mr Willshire-Smith himself, suffered from a lack of precision and clarity. They listed a variety of complaints, including misappropriation of "a legal document", overcharging "Mr Willshire-Smith for their services", refusing to provide costing of overheads, failure to respond to correspondence, illegal restraint, harassment and failure to grant a lease of the shops to a prospective purchaser of Mr Willshire-Smith's business. There were other allegations but those that have been listed are sufficient to establish the existence of an acrimonious dispute.
With one exception (in paragraph 21 where there is a claim of negligence made against the agent and its directors but not against the landlord or its directors) Mr Willshire-Smith's complaints, as contained in his statement of claim, were levelled against all respondents jointly; there was no attempt to differentiate between landlord and agent. Thus in paragraph 15 it is claimed:
"That the respondents harassed staff and prospective purchasers of the business in a malicious vendetta against the applicant."
Whilst the application in the substantive proceedings contained a claim that "the respondents have engaged in unconscionable conduct and misleading and deceptive conduct pursuant to the Trade Practices Act 1974, sections 52, 52A and 53", the statement of claim makes no reference to this legislation nor does it contain an allegation that the challenged conduct constitutes unconscionable conduct or misleading or deceptive conduct. Likewise, the application contains a plea that "the respondents have committed the Tort of Trespass, Negligence, Defamation, and Malicious Persecution (sic)" but, save for the claim of negligence against the agent and its directors, no similar claims are made in the statement of claim. For the most part, no information is narrated in the statement of claim from which one might identify the basis for causes of action in trespass, defamation or malicious prosecution.
The quality of the pleadings was so bad that it was not surprising that the Court was moved to dismiss the action or, alternatively, to strike out the statement of claim; the parties to the notice of motion, which was filed on 15 September 1993 were, however, only the agent and its two directors. The other respondents, the landlord and its two directors were not moving parties. On 15 October the Court ordered that the statement of claim be struck out, that Mr Willshire-Smith pay the taxed costs of the moving parties, and, subject to him paying those costs, that he have leave to file a fresh statement of claim.
After the above mentioned notice of motion had been filed but before any orders had been made on it, an advertisement appeared in "The Advertiser" newspaper of Saturday, 3 October 1992 in the following terms:
"JLW (SA) LITIGATION
Proceedings have commenced in the Federal Court of Aust., SA Registry against Jones Lang Wootton and two of its Directors and others, under sections 52, 52A and 53 of the Trade Practices Act.
I am interested in speaking to any party who has a substantial complaint against this company, being either a tenant of a property currently being managed by JLW, a landlord contracting its services, or a past vendor or purchaser of property in SA who has cause for complaint. I am also interested in hearing from any one contemplating litigation for any reason, and particularly those tenants in shopping centres which have, or are being managed by JLW. Please fax your initial enquiry to (08)2817001 bus. hrs."
It was alleged in the statement of charge that Mr Willshire-Smith was the person responsible for inserting this advertisement in the newspaper. Through his solicitor he has admitted this (Ex.R2). In paragraph 19 of his deposition Mr Willshire-Smith said that the events enumerated in that paragraph "caused the frustration and anger that led to my advertisement for other dissatisfied tenants". I find that this is a reference to the advertisement that appeared in "The Advertiser" on 3 October 1992.
Mr John Karran is a tenant of another shopping centre that is managed by JLW (SA) Pty. Ltd. He saw the advertisement in "The Advertiser" and decided to make inquiries. In his deposition he said that he decided to "send a fax off on behalf of the tenants". Presumably, that was a reference to the other tenants of the shopping centre from which he conducted his business. He did this on the Saturday, that is, the day of the publication of the advertisement. He then deposed that on the following Tuesday, 6 October, (Monday being a public holiday) he received, via facsimile transmission, a two page letter bearing the signature "Douglas Willshire-Smith", a poem entitled "Don't Quit" and a copy of the application that had been filed in these proceedings.
Although authorship of the letter was not formally admitted, I have no doubt that Mr Willshire-Smith composed it and was responsible for sending it to Mr Karran. Whilst Mr Willshire-Smith did not make any direct reference to the letter in his deposition he did, however, refer to Mr Karran in these terms:
"In this regard, it would appear from the affidavit of Mr John Karran that other tenants do have grievances similar to mine."
Having regard to the evidence of Mr Karran (which was not challenged), having further regard to the contents of the letter (which dwell significantly upon the history of Mr Willshire-Smith's tenancy in the shopping centre), and bearing in mind that Mr Willshire-Smith made no attempt to disassociate himself from the composition and the forwarding of the letter, I find that he composed it and forwarded it to Mr. Karran.
Mr Karran made copies of what he had received from Mr Willshire-Smith and distributed them to at least 6 other tenants of his shopping centre. On the following day, the Wednesday, as a result of a conversation with a representative of JLW, Mr Karran forwarded a copy of the letter, the poem and the application to JLW.
Aspects of the letter of 6 October 1992 were outrageous as will become apparent from some passages that are quoted below. The thrust of the letter was directed towards a vilification of a District Court Judge in his capacity as the presiding member of the Commercial Tribunal, who had heard and determined adversely to Mr Willshire-Smith a dispute between Mr Willshire-Smith and his landlord. In those proceedings the Tribunal was critical of the conduct of the managing agent but the managing agent had not been named as a party and was not represented before the Tribunal.
The letter referred to the Judge as "biased and rude" and as "a menace to our society and should be removed from office". It described the Tribunal as a "Kangaroo Tribunal". The author then turned his attention to the legal profession (the majority of whom were described as "nothing short of absolute pricks") and to a valuer who was described as "an incompetent prick".
Interspersed among these rantings are unconnected and virulent references to JLW. The first reference appears immediately after the reference to the legal profession. It says:
"The reason I am taking action against JLW is the fact that they have been the managing agents for the centre, and it was proven that they have acted in an unconscionable manner with tenants, and unless we can get together to stop these bastards, everyone will suffer."
Later, in a reference to his earlier litigation with his landlord, Mr Willshire-Smith wrote of the "arrogant and negligent conduct by JLW in that they had engineered overcharging all tenants for electricity and rubbish removal costs and others, defamation etc". He then added:
"I suspect JLW are doing the same thing to all other tenants under their management, and I would like to gather enough information to bring a class action against this firm, and have the Directors removed from office. (Their fees have also gone up by 40% over the last 2 years!)."
JLW and its two directors, Messrs Hall and Mooney, in their capacity as litigants in these present proceedings, action No. SG59 of 1992 in the Federal Court of Australia, have charged that Mr Willshire-Smith, being the applicant in that action, has by virtue of the publication of the abovementioned advertisement and the forwarding of the letter to Mr Karran, been guilty of contempt of the Federal Court. They have claimed that the advertisement and the letter separately and cumulatively have disparaged JLW in connection with, or in respect of facts that form part of, the subject matter of the litigation in the Federal Court and, therefore, in terms of O40 r5, "a contempt has been committed in connection with a proceeding in the Court".
It was argued that the purpose and effect of the advertisement was to marshall together anyone - not merely tenants of shopping centres but also landlords and vendors and purchasers of other properties - who may have a complaint against JLW so that they may join forces in a campaign against that company. It was claimed that the language of the advertisement allowed for an interpretation that the nature of the proceedings that had been instituted was such that there may have been a public issue involving the Trade Practices Commission. I reject that proposition. The use of the singular person "I" at the commencement of the 2nd and 3rd paragraphs, the absence of any reference to the Commission and an objective reading by any fair-minded person readily leads to the conclusion that the advertisement had been inserted by an individual who, more likely than not, was or had been a disgrunted tenant of a shopping centre that was being managed by JLW.
That finding, however, does not conclude the matter. It was still argued that the advertisement was intended to apply impermissible pressure on the company in its capacity as a litigant in these proceedings. This pressure was exacerbated, so it was claimed, by the contents of the subsequent letter. If Mr Willshire-Smith was prepared to so vilify a District Court Judge, the legal profession and others, did it not add impetus to the complaint that his conduct was so reprehensible with respect to the company that he was guilty of contempt of this Court?
The power of the Federal Court to punish for contempt is found in subs 31(1) of the Federal Court of Australia Act 1976 (Cth). It provides:
"31.(1) Subject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court and, where the contempt relates to the exercise of jurisdiction in a Division of the Court, the jurisdiction to punish that contempt shall be exercised in that Division of the Court."
In the circumstances of this case, the relevant provisions of the Rules of Court are found in O40 r5 and 6. So far as appropriate they state that where "it is alleged that a contempt has been committed in connection with a proceeding in the Court, an application for punishment for the alleged contempt must be made by motion on notice", accompanied by a statement of charge that specifies "the contempt of which the accused person is alleged to be guilty".
In my opinion, the newspaper advertisement, by itself, did not amount to a contempt of this court. In the statement of charge, the company and its directors complained that the advertisement publicised the Federal Court proceedings, the nature of them, the involvement of the company as a party to those proceedings and that "a substantial complaint" was involved; they also complained that the nature and character of the advertisement and its intended purpose was to solicit complaints from parties who have had unsatisfactory business dealings with the company. But these complaints are merely a foreseeable consequence of much litigation; it would be a gross exaggeration to regard their publication as an interference with the cause of justice. An individual litigant may not like it, but it is perfectly proper for his opponent to search out and find those who have similar complaints. Such was the view of the Court of Appeal in Plating Company v Farquharson (1881) 17 Ch D 49. In that case the parties cited for the alleged contempt were the printers and publishers of the newspaper that ran an advertisement that offered a reward of 100 to anyone who could produce documentary evidence that could be used to set aside an injunction. Jessell MR explained that:
"... in order to commit them for contempt the Plaintiffs must shew that the advertisements themselves were on their face such that a person of ordinary intelligence conducting a newspaper must have known that the publication of them was an interference with the course of justice. Now, not only is nothing of the kind shewn, but as far as I can see there is no ground whatever for impeaching the propriety of the advertisements." (53)
I do not consider that the identity of the party who was cited for contempt was a material consideration. I believe that the remarks of the Master of the Rolls apply with equal force to the litigant who was responsible for the composition of the advertisement.
The company further complained that the advertisement generated gossip and idle speculation, adverse publicity and notoriety and attracted publication to mischievous and adverse criticism of the company. No doubt some or all of these complaints might apply to some sections of the community, but a person of ordinary intelligence would see the advertisement for what it was: an attempt by a person who has a complaint against the company to enlist the aid of those others (if any) who also had complaints against the company.
I therefore reject the proposition that the advertisement, by itself, had or was likely to have any adverse effect on the company or its directors. I do not consider that it would have in any way prejudiced a fair trial of the action or interfered with the judicial process. The advertisement did not constitute a contempt of this court.
I turn then to consider the letter from Mr Willshire-Smith to Mr Karran. In my opinion, that letter and its contents, can be considered, either in isolation, or, as the company and its directors choose to do, in conjunction with and against the background of the earlier advertisement. It was said that the nature and character of the letter and its intended purpose was, first, to perpetuate the adverse publicity attendant upon the publication of the advertisement, secondly, to disparage the company in its role as the managing agent of commercial premises in general and of the Parafield Gardens Shopping Centre in particular, and finally to engender suspicion as to the competency, honesty and integrity of the company in its business activities.
As to Mr Willshire-Smith, the company and its directors claimed in paragraph 18 of the statement of charge that by the publication of the letter, he thereby engaged in conduct:
"18.1 calculated to inhibit JLW (SA) Pty Ltd from availing itself of its constitutional right to have its legal rights determined by this Honourable Court by holding it up to public obloquy for doing so and by exposing it to public and prejudicial discussion of the merits and/or facts of the within action before they had been determined by this Honourable Court; 18.2 calculated to attract public comment which was likely to bring pressure to bear on the fourth, fifth and sixth named respondents to the within action so as to seek to prevent those parties from defending the action either at all or in a way in which they would otherwise do so; 18.3 so as to seek to induce or effectively compel the fourth, fifth and sixth named respondents to submit to terms of compromise which they might otherwise not have been prepared to entertain; 18.4 so as to interfere with the due administration of justice;
18.5 which had the tendency to prejudice the judicial process.
18.6 calculated to erode and undermine public confidence that the public should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in Courts of law;
18.7 calculated to bring a Court or a Judge into contempt or to lower its or his authority and so undermine public confidence in the administration of justice;
18.8 constituting a scurrilous abuse of the Courts and the judiciary;
18.9 which made imputations as to impropriety and lack of judicial impartiality of the judiciary of the State of South Australia."
I do not consider that there is any substance in the last four matters. There was no suggestion of bias, and the last three matters would fall exclusively within the province of either the District Court or the Commercial Tribunal.
It was submitted on behalf of Mr Willshire-Smith that he did not intend any contempt - either in publishing the advertisement or in writing the letter to Mr Karran. But the actual intention or purpose is not a decisive consideration: John Fairfax and Sons Pty. Ltd. v McRae (1955) 93 CLR 351 at 371 per Dixon CJ Fullagar, Kitto and Taylor JJ; see also Hinch v Attorney-General (Vic) (1987) 74 ALR 353 at 377 per Deane J, at 394 per Toohey J, and at 407 per Gaudron J. As Deane J explained in Australian Builders Construction Employees and Builders' Labourers' Federation v Commonwealth of Australia (1981) 37 ALR 470 at 475 there is a difference between statements made and actions taken with the object or purpose of interfering with the due administration of justice and statements and actions which are not shown to have been made or taken with that object or purpose but which have a tendency to that effect. In that case, the Full Court was satisfied that there was not any actual intent to interfere with the due administration of justice with respect to certain de-registration proceedings then before the Court. However, it was also satisfied that if certain Royal Commissions were allowed to continue to hold hearings in public, then actual or threatened interference with the course of the administration of justice in respect of the Federal Court proceedings would occur.
Lord Hardwick LC stated the law relating to contempt of Court in The St. James' Evening Post case: Roach v Gavan (or Hall) (1742) 2 Akt 469 at 471-2:
"'There are three different sorts of contempt. One kind of contempt is, scandalizing the court itself. There may be likewise a contempt of this court, in abusing parties who are concerned in causes here. There may be also a contempt of this court, in prejudicing mankind against persons before the cause is heard. There cannot be anything of greater consequence, then to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters'."
The contents of Mr Willshire-Smith's letter to Mr Karran would not amount to a scandalising of this Court but do they amount to an "abusing" of parties to the litigation or to "prejudicing mankind against persons before the cause is heard"? Before attempting an answer to that question it is necessary to make certain findings of fact.
I reject the submission that the letter to Mr Karran was intended to be in the nature of a private and confidential communication. On this subject it is appropriate for evidentiary purposes to revert back to the advertisement and to the language used in it. It was directed to an identifiable section of the public, viz, all those people who had had any dealings with the company. It canvassed information from anyone within that group. Mr Karran claimed that he answered the advertisement for himself and other tenants. These matters, together with the contents of Mr Willshire-Smith's response to Mr Karran, containing vitriolic abuse about a variety of people are quite consistent with an intention, on the part of Mr Willshire-Smith, to publicise his views as widely as possible. In my opinion, it would be proper to infer that Mr Willshire-Smith would have written a similar letter to other inquirers. I find that in publishing the advertisement Mr Willshire-Smith hoped to attract several inquiring parties so that he could thereafter write them in terms similar to his letter to Mr Karran. The fact that there is no evidence pointing to the identity of other correspondents is not to the point.
In my opinion, it is important to state my view that it was reasonably foreseeable that the contents of Mr Willshire-Smith's letter would come to the attention of the company. First, the advertisement was projected in general terms to any interested party - thus, an undisclosed agent of the company could have answered the advertisement and, in return, received a letter in similar terms to that sent to Mr Karran. Secondly, the contents of the letter were so extreme and abusive that one could imagine an enemy, with delight, and a friend, with concern, forwarding a copy to the company. Finally, as was the fact, the company came to hear of the letter and Mr. Karran succumbed to their request for a copy.
Mr McNamara, counsel for the company and its directors relied upon the decisions of the House of Lords in Attorney-General v Times Newspapers Ltd. (1974) AC 273 and the Court of Appeal in Attorney-General v Hislop (1991) 1 All ER 911 in support of his submission that there had been conduct calculated to inhibit his clients as suitors in the Federal Court proceedings. In examining those cases, care must be taken, not only because the alleged contemnors were members of the media, but also because of the intense public interest that had been generated by both cases. The decision in Attorney-General v Times Newspapers dealt with the Thalidomide babies; as unborn infants, they had suffered horrendous deformaties as a result of their mothers taking thalidomide tablets during pregnancy. Whilst compensation proceedings were still on foot, a national Sunday newspaper ran a series of articles that drew attention to the plight of the children. In Attorney-General v Hislop, Mrs Sutcliffe, the wife of the infamous Yorkshire ripper, had sued a magazine for libel. Three months before the trial was due to begin, the magazine published two articles the import of which was that she had known what her husband was doing at the time of the murders.
In the Thalidomide case, the newspaper article was set out in the speech of Lord Reid. It read in part:
"Thirdly, the thalidomide children shame Distillers. It is appreciated that Distillers have always denied negligence and that if the cases were pursued, the children might end up with nothing. It is appreciated that Distillers' lawyers have a professional duty to secure the best terms for their clients. But at the end of the day what is to be paid in settlement is the decision of Distillers, and they should offer much, much more to every one of the thalidomide victims." (293)
Lord Reid approached his consideration of the matter in this way:
"The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice." (294)
Later, at 297-298 his Lordship explained the dividing line by saying that:
"where the only matter to be considered is pressure put on a litigant, fair and temperate criticism is legitimate, but anything which goes beyond that may well involve contempt of court".
Lord Morris of Borth-y-Gest gave the following as an example of contempt:
"So also there might be conduct which was calculated so to abuse or pillory a party to litigation or to subject him to such obloquy as to shame or dissuade him from obtaining the adjudication of a court to which he was entitled." (302)
Lord Diplock also recognised a form of contempt which inhibits a litigant. He said:
"'Contempt of Court' is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes." (307)
Later at 309 his Lordship stated that the due administration of justice requires that:
"... all citizens should have unhindered access to the constitutionally established courts... for the determination of disputes as to their legal rights and liabilities."
He then went on to say:
"My Lords, to hold a party up to public obloquy for exercising his constitutional right to have recourse to a court of law for the ascertainment and enforcement of his legal rights and obligations is calculated to prejudice the first requirement for the due administration of justice: the unhindered access of all citizens to the established courts of law... If to have recourse to civil litigation were to expose a litigant to the risk of public obloquy or to public and prejudicial discussion of the facts or merits of the case before they have been determined by the court, potential suitors would be inhibited from availing themselves of courts of law for the purpose for which they are established." (310)
These remarks were made of a business house that had manufactured and distributed the thalidomide tablets and which had been the subject of adverse criticism in the national press. But with care, they can be adapted and applied to the conduct of any individual who engages in, or who exhibits a willingness to engage in, correspondence with a limited section of the public: Attorney-General v Hislop at 920 per Parker LJ
In assessing whether the requisite degree of inhibition might be calculated to exist there must be some real risk for there will be no contempt if the possibility of influence is remote. On the other hand, the assessment must be made in an objective setting. It is not to the point to acknowledge that in this case the company has not been overborne. If that was a factor to be taken into consideration then no litigant who was prepared to complain could ever establish the existence of a risk of inhibition. The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate. If the conduct amounted to such improper pressure it would not matter that it failed to achieve its objective.
In Attorney-General v Hislop, Parker LJ referred to the speeches in the Thalidomide case and applied them to the facts relating to the circumstances of Mrs Sutcliffe. He said:
"First, and most important, it is clear from those speeches
(i) that there is a difference between private pressure whether by an opposing litigant or a third party and publication to a wide section of the public, (ii) that so far as the latter is concerned the mere fact that the publication will exert pressure will not suffice to constitute the publication as contempt so long as it consists in no more than fair and temperate criticism. Secondly, it is in my view clear beyond all argument that the articles went far further than fair and temperate criticism. They were plain abuse. To say that there was no misrepresentation is in my judgment unsustainable. They were intended to deter Mrs Sutcliffe by what were tantamount to threats that, in an action which concerned only the question whether she had sold her story to the Daily Mail she would be exposed, if she continued, to cross-examination designed to establish that she had known of her husband's murderous activities and that she had defrauded the social security authorities and would be subject to an investigation by them. I can imagine nothing more improper. Thirdly, if the articles were in fact untrue, as the judge in my judgment rightly found, their publication was a tort even if they were at the time believed to be true. Finally and for the above reason, misrepresentation does not in my judgment become 'absent in the instant case' merely because Private Eye believed them to be true." (920)
I return to the contents of the letter of 6 October 1992 from Mr Willshire-Smith to Mr Karran and state my conclusions with respect to its contents and its author. In the first place it is clear from its contents that the author of the letter has no true conception of the judicial system and the administration of justice. The composition of his letter shows a mixture of ignorance and arrogance. Secondly, it is his arrogance that I find so disturbing; he is prepared to condemn anyone who does not share his views or respond to his complaints. Thirdly, I do not think that the subject of contempt of court occurred to him when he wrote that letter; his objective was to denigrate the company in the eyes of the reader of the letter. His insular thinking would not have extended to the likely adverse consequences that could flow from the letter. It was not his intention to prevent JLW from defending these proceedings: rather he was intent on finding more ammunition with which to carry on his fight against the company. On the other hand, however, the contents of the letter, particularly the display of viciousness towards authority, would have constituted a real risk that a litigant might have been dissuaded from properly prosecuting his defence to the proceedings that Mr Willshire-Smith had instituted.
Mr Willshire-Smith may not have applied his mind to the issue of interference with the due administration of justice but his conduct in writing his letter of 6 October 1992 to Mr Karran had a tendency to that effect. In particular, it tended to inhibit the company from availing itself of its constitutional right to have its defence determined by the Federal Court. It also tended to attract public comment from a limited section of the community and that comment was likely to bring pressure to bear on the company. That pressure could have prevented it from defending the action either at all or in a way in which it would otherwise do or it might have forced it to submit to an unsatisfactory compromise.
These findings amount to a further finding that the conduct of Mr Willshire-Smith tended to interfere with the due administration of justice and to prejudice the judicial process of this Court. For these reasons I am of the opinion that Douglas Willshire-Smith was, by virtue of his composition and forwarding of his letter of 6 October 1992 to John Karran, guilty of contempt of court. There will be a declaration accordingly and I will adjourn the matter to a day to be fixed for further submissions on consequential orders.
0
3
0