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Australian Government Solicitor

 

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Legal Briefing

Number 56

(25 June 2000)

Contempt of Court – How it can Effect You

The consequences of committing a contempt of court can be very serious, including a substantial fine or imprisonment. The scope for the Government, its ministers, officers and agencies to become involved in, or otherwise be affected by, court proceedings is enormous. So also is the potential for the Government, ministers, officers and agencies to become exposed to liability for contempt of court. Contempt of court is not limited to deliberate breach of court orders, nor is it limited to the parties to court proceedings. This briefing outlines the rationale for the doctrine of contempt of court and traverses some bases of liability for contempt of court.

Rationale for Contempt of Court

Fundamentally, contempt of court is an interference with the administration of justice. In Re Colina; Ex parte Torney (1999) 166 ALR 545 at 579, Hayne J of the High Court of Australia identified 'the cardinal feature of the power to punish for contempt' as being an exercise of judicial power by the courts 'to protect the due administration of justice'. The doctrine of contempt of court is not directed to protecting the personal reputations of judges: Theophanous v Herald and Weekly Times (1993–4) 182 CLR 104 at 187. Offensive remarks about a judge, which do not interfere with the administration of justice, may give rise to liability in defamation but do not constitute contempt of court.

Comments about Court Proceedings

Improper pressure on parties

It is a contempt of court to put improper pressure on a party to court proceedings. In Attorney-General v Times Newspapers Ltd (1973) 3 All ER 54, the House of Lords was considering a newspaper article relating to legal proceedings then on foot against manufacturers of the drug thalidomide. The article attacked the manufacturer for making a small settlement offer. That article included the following statements:

'the thalidomide children shame Distillers';

The settlement offer 'does not shine as a beacon against pretax profits last year ... and company assets';

'Distillers could and should think again.'

The House of Lords:

  • held that it was a contempt of court to use improper pressure to induce a litigant to settle a case;
  • was divided as to whether the criticism in the article amounted to improper pressure or was fair and temperate.

Prejudging result of proceedings

In the abovementioned case the House of Lords also considered a proposed article containing detailed evidence and argument to show that the thalidomide manufacturers had not exercised due care. The House of Lords held that the proposed article would be contempt because the fair trial of the proceedings would be prejudiced.

In Australia a broadcast occurred shortly before the commencement of criminal proceedings. The broadcast:

  • was concerned with the 'Age tapes', not with the criminal proceedings;
  • made statements which the NSW Court of Appeal held to imply that the accused person was guilty;
  • was held by that Court to be a contempt of court.

Also in Australia, a prominent public officer was asked by a journalist for his view of a court order overturning a conviction of a person and granting a fresh trial. The officer expressed his belief that the accused person was innocent and that a different result would be achieved at the fresh trial. That statement was held to be a contempt of court.

An Inquiry into Matters Covered by Court Proceedings

Situations can arise where the subject matter of a particular court case is also a matter, or related to a matter, of public interest into which a Government might wish to conduct an inquiry. In that event, the question arises whether the conduct of the inquiry would amount to a contempt of court. The position has been summarised as follows:

'The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.'

(Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242 at pages 249–250)

The High Court of Australia has stated that the conduct of a Royal Commission would constitute a contempt of court if it actually interfered with the administration of justice or had a real and definite tendency to do so: Victoria v BLF (1982) 152 CLR 25.

Factors which a court will take into account in deciding whether the conduct of an inquiry constitutes a contempt of related court proceedings include:

  • Whether the court proceedings are civil or criminal – As is to be expected, a court will be especially vigilant to protect the integrity of criminal proceedings.
  • Whether the facts in the court proceedings will be determined by a judge or by a jury – A court will be concerned at the prospect of a jury being influenced by a related inquiry but will generally regard a judge as not being capable of being so influenced.
  • The extent to which the inquiry is examining matters covered by the court proceedings – If the inquiry avoids considering, or receiving evidence relating to, the guilt or innocence of the party in the court proceedings, the inquiry is far less likely to be held to be in contempt of court.
  • Whether the inquiry is being held in public or in private – Obviously, if an inquiry being held in private, the potential for a jury to be influenced by its proceedings is remote.
  • Does the inquiry have compulsory evidence gathering powers – An inquiry which was exercising a power to compel a person to disclose information or documents relevant to that person's case in court proceedings might be held to be in contempt of court, especially where the information or documents were prejudicial to that person's case in the court proceedings.
  • The extent to which the particular proposed conduct by the inquiry is authorised by statute – The more detailed the statute establishing the inquiry, the less likely it is that the inquiry's conduct pursuant to that statute would be a contempt of court.

Conduct in Court Proceedings

Disclosure of documents to the court

It is vital to ensure either that a court order requiring disclosure of documents is fully complied with, or that any deficiency in compliance is brought to the court's attention. In a case in Australia, the facts as found by the court were as follows. A government officer received a court subpoena on a Friday morning. The subpoena required production of documents the following Monday morning. The officer conducted a search for documents within Australia. That search revealed no documents answering the subpoena. The officer arranged for the court to be informed that there were no documents answering the subpoena. In subsequent proceedings it became apparent that the relevant department had held documents at an overseas post. The Court held the officer guilty of contempt and ordered the officer to pay costs of several thousands of dollars. The court clearly intimated that, if it had found the contempt to have been deliberate, a more severe penalty would have been imposed. If time did not permit a full and thorough search, the court should have been so informed and requested to grant further time.

Use of documents obtained by a court's compulsory process

Subject to certain qualifications, a party to court proceedings who receives information pursuant to the court's compulsory process is subject to an implied undertaking, given to the court, not to use or disclose the information except for the purpose of those proceedings. The undertaking applies to all forms of a court's compulsory process, eg. subpoena, discovery, interrogatories, orders requiring production of affidavits or witness statements. A breach of the undertaking (eg. by disclosure of the information to the media or for the purpose of another court case) is a contempt of court.

The qualifications are:

  • the court may grant leave for the proposed use or disclosure, or the person from whom the information was obtained may consent to the use or disclosure;
  • the undertaking ceases upon the information being admitted into evidence in open court.

Eg. Eltran Pty Ltd v Westpac Banking Corporation (1990) 98 ALR 141; Sentry Corporation v Peat Marwick Mitchell & Co (1990) 24 FCR 463.

It has been held that the implied undertaking exists in relation to information obtained by compulsory process in the Administrative Appeals Tribunal: Otter Gold Mines Ltd v McDonald (1997) 147 ALR 322.

Some other Kinds of Contempt of Court

Statements about a judge

A statement that a judge's conduct in court, or the judge's decision, has been influenced by some factor other than the evidence in court and the judge's view of the law, can be a contempt of court. For example, a statement by a union official that union action had been 'the main reason' for a particular court decision was held to be incorrect and a contempt of court Gallagher v Durack (1983) 45 ALR 53. This is because such a statement undermines the administration of justice by lowering the authority of the court in the minds of the general public.

Conversely, a statement that a judge's decision showed that the judge was 'a racist judge' was held not be a contempt of court: Attorney-General for NSW v Mundey (1972) 2 NSWLR 887. In the circumstances of that case, the statement was accepted as being a statement about racism generally in Australian society and thus not being 'an attack upon the judge or court as such, but an attack upon society, and its laws' (at page 913).

Also, 'it is no contempt of court to criticise court decisions when the criticism is fair and not distorted by malice and the basis of the criticism is accurately stated. To the contrary, a public comment fairly made on judicial conduct that is truly disreputable (in the sense that it would impair the confidence of the public in the competence or integrity of the court) is for the public benefit: Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 38–9.

Abuse of a judge in the court proceedings themselves will generally be a contempt of court. Otherwise, attacks on a judge's personal reputation will be left for determination under the law of defamation, unless the attacks also undermine the administration of justice.

Improper pressure on a witness or juror

Punishing an employee for being a witness or juror, or pressuring a witness about what evidence to give, can be a contempt of court.

Destruction of documents

It can be a contempt of court to destroy documents likely to be required for court proceedings, even if:

  • no subpoena has yet been issued for their production;
  • the documents were not essential for the proceedings.

Inhibiting access to courts

It is a contempt of court to engage in conduct having 'a real tendency to put pressure on litigants, witnesses and other persons who must be left to come and go in connection with court business free from threat or harassment': Registrar v Unnamed Respondent (unreported) Miles CJ ACT Supreme Court 16/3/94. Arresting, or taking photographs of, a litigant in court precincts has been held to be a contempt. However, there is no general law that all service of process within the precincts of a court constitutes a contempt of that court: Re O'Sullivan; Ex parte O'Sullivan v Commonwealth Bank of Australia (1995) 129 ALR 295. Service of a bankruptcy notice in court precincts has been held not to be a contempt of court. Service of a witness summons would probably generally also not be a contempt of court. Each case needs to be considered on its own facts.

Breaching a court order

A person can commit a contempt of court by breaching an order directed to that person. Also, it has been held that a newspaper which published material, knowing that another newspaper was injuncted from publishing that material, was guilty of contempt of court. The consequence of the publication was to nullify the injunction against the other newspaper: Attorney-General v Times Newspapers Ltd (1991) 2 WLR 995.

For further information please contact any of the following lawyers:

Canberra

Barry Leader

(02) 6253 7064

Sydney

Megan Pitt

(02) 9581 7474  

Melbourne 

Martin Bruckard

(03) 9242 1386

Brisbane

David Durack

(07) 3360 5700

Perth

Graeme Windsor

(08) 9268 1102

Adelaide

Sarah Court

(08) 8205 4231

Darwin

Rick Andruszko

(08) 8943 1400

Hobart

Peter Bowen

(03) 6220 5474


ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this briefing.

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