Reported Decision: 70 NSWLR 377
New South Wales
Court of Appeal
CITATION: Y & Z v W [2007] NSWCA 329
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 25/10/07
JUDGMENT DATE:
12 November 2007JUDGMENT OF: Spigelman CJ at 1; Giles JA at 13; Ipp JA at 24 DECISION: (1) The appeal is partially upheld. (2) Order 1.2 is set aside. (3) Order 1.3 is varied by the deletion of the words "and 1.2". (4) Otherwise the appeal is dismissed. (5) W is to pay the appellants' costs of the appeal. (6) The matter is remitted to the Equity Division for further hearing as to whether, having regard to the new evidence that has been filed, interlocutory restraining orders should continue to be of force and, if so, in what terms. (7) Orders (2) and (3) are suspended for 28 days from the delivery of this judgment to enable the hearing contemplated by order (6) to take place and appropriate orders to be made. CATCHWORDS: CONTEMPT OF COURT – misuse of court’s processes – whether the threatened filing in separate proceedings by the appellants of an affidavit containing irrelevant and scandalous material, thereby prejudicing the respondent, amounted to an abuse of the court’s processes - CONTEMPT OF COURT – obstruction of the due administration of justice – whether, by bringing improper pressure to bear on the defendant in collateral proceedings so as to induce the settlement of such proceedings, the appellants obstructed the due administration of justice – whether the fact that such pressure was channelled through the respondent as a third party intermediary was material to the court’s finding that the appellants were guilty of contempt of court – onus and standard of proof – whether the material in question had a real and definite tendency, as distinct from a mere possibility, to interfere with the due administration of justice as to entitle her to interlocutory relief – objective / subjective test - CONTEMPT OF COURT – orders of chambers judge – width of orders – whether particular orders made by chambers judge were unnecessary or too wide – whether the unchallenged orders were wide enough to afford the respondent the protection she required – whether potential publication of material calculated to expose the respondent to ridicule, hatred and contempt – considerations of freedom of speech – balance between public interest in freedom of speech against public interest in the administration of justice – whether the orders granting an injunction were so wide as to distort this balance – consideration of potential harm to third parties as a result of improper pressure - DEFAMATION – orders of chambers judge – width of orders – whether order on defamatory ground could be supported – whether respondent established with reasonable certainty the words of the threatened publication – difference between final and interlocutory injunctions – whether requirement of reasonable certainty alleviated in cases of interlocutory relief – whether, if…
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- Y and Z v W [2007] NSWCA 329
- Case
- [2007] NSWCA 329
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CaseChat Overview and Summary
The appeal concerned alleged contempt of court by the appellants, Y and Z, against the respondent, W. The dispute arose from the appellants' threatened filing of an affidavit containing irrelevant and scandalous material in separate proceedings. This action was alleged to prejudice the respondent and constitute an abuse of the court's processes and an obstruction of the due administration of justice. The matter was heard by the Court of Appeal of New South Wales, with judgment delivered by Spigelman CJ, Giles JA, and Ipp JA.
The court was required to determine whether the threatened filing of the affidavit amounted to contempt of court, specifically by misusing court processes and obstructing the due administration of justice. This involved considering whether the appellants' actions, including exerting improper pressure on a party in collateral proceedings through the respondent as an intermediary, constituted contempt. The court also had to assess the standard of proof required to establish that the material had a real and definite tendency to interfere with the administration of justice, and whether the orders made by the chambers judge were unnecessarily wide or appropriately balanced the public interest in freedom of speech against the administration of justice. Furthermore, the court considered the requirements for granting an interlocutory injunction in defamation proceedings, including the certainty of the defamatory words and the balance of convenience.
The Court of Appeal reasoned that while the appellants' conduct in threatening to file scandalous material and exert improper pressure could constitute contempt, the specific orders made by the chambers judge were too broad. The court balanced the public interest in freedom of speech against the need to protect the administration of justice and prevent the misuse of court processes. It found that the material in question did have a real tendency to interfere with justice, but the width of the injunctions granted was not justified. The court also considered the requirements for interlocutory relief in defamation, noting that while certainty of defamatory words is generally required, this might be alleviated in certain interlocutory contexts.
The appeal was partially upheld. Order 1.2 made by the chambers judge was set aside, and Order 1.3 was varied. The matter was remitted to the Equity Division for further hearing on whether interlocutory restraining orders should continue, and if so, in what terms, considering new evidence. The operative orders were suspended for 28 days to allow for this further hearing.
The court was required to determine whether the threatened filing of the affidavit amounted to contempt of court, specifically by misusing court processes and obstructing the due administration of justice. This involved considering whether the appellants' actions, including exerting improper pressure on a party in collateral proceedings through the respondent as an intermediary, constituted contempt. The court also had to assess the standard of proof required to establish that the material had a real and definite tendency to interfere with the administration of justice, and whether the orders made by the chambers judge were unnecessarily wide or appropriately balanced the public interest in freedom of speech against the administration of justice. Furthermore, the court considered the requirements for granting an interlocutory injunction in defamation proceedings, including the certainty of the defamatory words and the balance of convenience.
The Court of Appeal reasoned that while the appellants' conduct in threatening to file scandalous material and exert improper pressure could constitute contempt, the specific orders made by the chambers judge were too broad. The court balanced the public interest in freedom of speech against the need to protect the administration of justice and prevent the misuse of court processes. It found that the material in question did have a real tendency to interfere with justice, but the width of the injunctions granted was not justified. The court also considered the requirements for interlocutory relief in defamation, noting that while certainty of defamatory words is generally required, this might be alleviated in certain interlocutory contexts.
The appeal was partially upheld. Order 1.2 made by the chambers judge was set aside, and Order 1.3 was varied. The matter was remitted to the Equity Division for further hearing on whether interlocutory restraining orders should continue, and if so, in what terms, considering new evidence. The operative orders were suspended for 28 days to allow for this further hearing.
Orders
Orders of the court
(1) The appeal is partially upheld. (2) Order 1.2 is set aside. (3) Order 1.3 is varied by the deletion of the words "and 1.2". (4) Otherwise the appeal is dismissed. (5) W is to pay the appellants' costs of the appeal. (6) The matter is remitted to the Equity Division for further hearing as to whether, having regard to the new evidence that has been filed, interlocutory restraining orders should continue to be of force and, if so, in what terms. (7) Orders (2) and (3) are suspended for 28 days from the delivery of this judgment to enable the hearing contemplated by order (6) to take place and appropriate orders to be made.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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