Legal Briefing No. 56

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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