Australian Consolidated Press Ltd v Morgan

Australian Consolidated Press Ltd v Morgan - [1965] HCA 21 - HCA 1965 case summary — Zoe

[48]

Sequestration is an old weapon of the Chancery Court to compel a party's obedience to either mesne process or a decree: see the entertainingly expressed report of Rowley v. Ridley [3] . Originally sequestration was the final weapon in the Chancery Court's armoury, used - when attachment, proclamation of attachment and commission of rebellion had been unavailing - to compel a recalcitrant defendant to appear and answer the plaintiff's bill. The old procedure for contempts of mesne process was substantially altered by the Chancery Contempts Act, 1830. But committal and sequestration continue to-day as means of enforcing compliance with the decrees of a court of equity. They are used primarily to compel obedience rather than to punish disobedience; for equity acts in personam, and historically the purpose of the processes of the Court of Chancery was to rectify and reform the conscience of the wrongdoer. The jurisdiction was, to use Professor Ashburner's phrase, "a cathartic jurisdiction": Ashburner on Equity, 2nd ed. (1933) p. 38. When contempt lies in disobedience of a court's order to do something, the contemnor may be imprisoned, until by doing what was ordered he purges his contempt. When contempt lies in disobedience of an injunction not to do something, the contemnor is ordinarily permitted to purge his contempt by an apology to the court, making reparation for the damage done by the forbidden act and paying the costs as between solicitor and client: see the article "Contempt of Court" in the Encyclopaedia of the Laws of England. I do not suggest that a person who contumaciously disobeys a decree may not in some cases be, sentenced to remain in custody for a fixed term by way of expiation. There are instances of that in the reports; and see s. 93 of the Equity Act, 1901-1957 N.S.W.. Nevertheless the processes that an equity court uses to enforce its orders are primarily coercive or remedial rather than punitive. In the absence of express statutory authority they do not, I think, include the essentially penal sanction of a fine.

[50]

However, as it chances, the very question arose quite recently in England before Cross J. in the Chancery Division: Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd. [1] . His Lordship there held that in a case of a civil contempt, by breach of an injunction, the Court had power to impose a fine in lieu of committal, although he did not actually do so. He reached his conclusion that he had this power because, he said, "I cannot see the logic of saying that in a case of civil contempt the court has no alternative to sending the defendants to prison" [1] . "I think", he said, "the court must have power, in the case of a civil contempt, to impose the lesser penalty of a fine" [2] . And, basing his conclusion largely on a passage in the judgment of Rigby L.J. in Seaward v. Paterson [3] , he assimilated civil contempt to criminal contempt. But, although, as I have said earlier, a contempt which is not criminal but which is a deliberate defiance by an individual of the Court's order may sometimes attract a penal or disciplinary power, yet the distinction between the two sorts of contempt remains. And, with all respect for the views of Cross J., I think that his conclusion cannot be justified by the remarks of Rigby L.J., especially when Lord Lindley's judgment in the same case be read and the observations of Lord Atkinson upon it in Scott v. Scott [4] . It is true that in two earlier cases, to which Cross J. referred, fines had been imposed for civil contempt. They are British Motor Trade Association v. Hewitt, a decision of Wynn Parry J. reported only in The Times newspaper of 1st June 1951, and Multiform Displays Ltd. v. Whitmarley Displays Ltd. (No. 5) [5] , where Lloyd-Jacob J. imposed a fine on two directors of a company for breach of an injunction. But in neither case did the persons concerned question their liability to a fine: and that is scarcely surprising, as if they had done so they might only have ensured their imprisonment. Three cases, and it seems three only, thus stand in striking isolation in reports covering three centuries or more. I do not think this Court should treat them as establishing a power to fine without hearing the matter fully argued. Moreover, we are concerned with the powers of the Supreme Court of New South Wales in its equity jurisdiction. Neither the Equity Act, 1901-1957 N.S.W., ss. 90-93, nor Equity Rules 209-215 provide for fines for contempt for breach of the Court's orders; and I do not think that a fine can be said to be, within the meaning of Preliminary Rule VI, part of "the practice for the time being of the Supreme Court of Judicature in England exercising its equity jurisdiction". I may add that in Queensland rules of court having statutory authority expressly authorize a fine for disobedience of the order of the Court in lieu of or in addition to committal or, in the case of a corporation, sequestration: see Hitzman v. Moore [6] .

[56]

Whatever the meaning and scope of the undertaking to the Court the appellant did not contumaciously disregard it. It is true that it did what it did deliberately and after a clear warning to its managing director that the respondents considered that doing what it did would be a breach of the undertaking. But it acted, his Honour found, as a result of the construction - his Honour held it to be a misconstruction - that it had placed upon its undertaking. Its conduct was thus wilful, but not contumacious: see Fairclough v. Manchester Ship Canal Co. [1] and Worthington v. Ad-Lib Club Ltd. [2] . The case seems to me to be one in which his Honour, he taking the view that there had been a breach of the undertaking, might well have granted an interlocutory injunction to restrain, pending the hearing of the suit, any repetition of acts of the kind that he considered transgressed the undertaking. There are precedents for such a course: and it would have had the advantage that such an injunction would have been granted upon the usual undertaking by the plaintiffs (the respondents here) as to damages if on the hearing of the suit their claim should fail. And his Honour might further, had he thought it necessary, have ordered that a writ of sequestration issue and lie in the office in the meantime. As it is, if it should ultimately transpire as a result of the suit that what the appellant did was not a transgression of any right of the respondents, the appellant will have no redress for a penalty and a restraint to which it ought not to have been subjected. Had these considerations been brought to his Honour's mind, it seems likely that he would have avoided making a definitive pronouncement on questions that must arise in the suit; for they are serious questions fairly arguable, and the undertaking was interlocutory and given expressly without admissions. That there are ambiguities latent in it became apparent in the course of the lengthy and inconclusive discussion that occurred in this Court between counsel and the Bench.

[58]

The appellant undertook not to publish in any form whatsoever any Gallup Poll results in respect of which the respondents have the copyright. That undertaking would I consider be broken by the publication of such results as a news item or in the course of an editorial, or in the remarks of some commentator be he a Minister of the Crown or anyone else. But what is it that must not be published? What are Gallup Poll results in respect of which the respondents have the copyright? That question was approached in the argument in two very different ways. One, that which counsel for the appellant urged, was to ask what is the result of a Gallup Poll: and to say that, if it be something that cannot be the subject of copyright, then the undertaking is on a false premiss, and having been given without admissions it creates no enforceable obligation. The other approach, that which counsel for the respondents took, was to say that the undertaking assumes that the result of a Gallup Poll is something in which there can be copyright, and that this controls the meaning of the expression "result of a Gallup Poll", restricting it to a document in which there is copyright and which can properly be described as such a "result". Either approach leads to difficulties because of the nature of literary copyright, the form of copyright involved in the question here. There can be no copyright in mere information, in news, however much time, skill and care was given to the gathering of it. There can only be copyright in the literary form in which the information is presented. It appears from the statement of claim that the respondents base their claim to copyright in what they there call "the results of public opinion polls" partly upon the terms of an agreement in writing made between themselves on 15th October 1958 and a supplementary agreement of 11th July 1961. It is alleged that, pursuant to these agreements, the respondent Morgan conducts public opinion polls and supplies "the results" thereof and a "written report thereon incorporating the results thereof" to the other respondent, Australian Public Opinion Polls (The Gallup Method). That company then provides copies of the report to certain newspapers which are its customers. The appellant is not one of those customers. The evidence establishes, I think, that the report as furnished to the newspapers could be the subject of copyright. But that is not the question in the present proceedings, for the respondents seek to distinguish between the report on the survey and the results of the survey. They seem to me to be in some uncertainty as to the nature and the source of the rights they assert. The respondent Morgan says, in his affidavit of 8th November 1961, that the second-named respondent, the company, had before the date of his agreement with it of 15th October 1958 "acquired and still then retained the sole and exclusive rights within the Commonwealth of Australia to the use of the names "The Gallup Method" and "Gallup Poll" and also to the use of the "Gallup Method of conducting public opinion polls" ". This may mean only that the public opinion surveys conducted in Australia by the second respondent are, according to the evidence given by Morgan in these proceedings, known as Gallup Polls. But the respondents apparently consider that they have "acquired" some proprietary right in the term "Gallup Poll" - which they emphasize by the regular use of capital letters "The Gallup Poll" - and have acquired an exclusive right to use in public opinion surveys a technique that they call "The Gallup Method". On what basis this could be so was not stated. I cannot help thinking that there is some misconception, and that it has coloured the respondents' view of their rights, and of the meaning of the word "results" in its context, and of what would constitute a breach of the appellant's undertaking. On the other hand, I cannot help thinking that much of the argument that we heard for the appellant placed too narrow a meaning on the expression "results of a poll". It was argued that this meant only the crude figures obtained by the enquiry, not even stated as percentages; that it could not mean any conclusion derived from those figures by any method of analysis or by comparison with other figures or other information. On the other hand, it was argued in effect that what is the result of a public opinion survey depends upon the purpose for which the survey was conducted. If the purpose were to ascertain whether there had been any change of public opinion on some topic since an earlier date, the result sought could only be arrived at after a comparison. However that may be, I do not think that the meaning of the expression "Gallup Poll results", as used in the undertaking, is to be found by considering those words in the abstract and regardless of the practices and terminology of the art of conducting public opinion surveys. These surveys are made by the skilful use of a sampling process. They are made for many purposes, including the prediction of election results. The evidence in this matter showed, and it is a matter of fairly general knowledge, that the "Gallup Poll" is the name by which the public opinion surveys made by the American Institute of Public Opinion are commonly known in the United States. The American Institute of Public Opinion was founded by Doctor George Gallup in, I think, 1935. The use of the term "Gallup Poll" to distinguish its surveys from those made by other poll-takers seems to be well established in the United States. But elsewhere the term "Gallup Poll" seems to be a generic description. At all events, no basis appeared on which that term can in Australia become in law the exclusive property of a particular local poll-taker or be restricted to any opinion surveys except perhaps those actually conducted in the United States by the American Institute of Public Opinion. There is now a considerable body of literature, both books and periodicals, dealing with public opinion surveys or polls. I have read some of this material, including some writings of Doctor Gallup. I have read too parts of Mr. Cantrill's book Public Opinion 1935-1946, which states that its aim is to present as many opinion poll results as possible in a convenient and useful form. I base no conclusion upon my reading, for the matter was not given in evidence before us. But when the suit is heard, and more complete evidence is given, some reference may be made to the use which writers on this subject make of such expressions as "the results" and "the findings" of public opinion polls. I express no opinion as to the correctness of the construction of the appellant's undertaking that Else-Mitchell J. adopted. I do not mean to say that it was erroneous. But it seems to me impossible to say that the undertaking was clear or that a breach of it was certainly established. I agree in the view that my brother Owen expresses in the judgment that he is about to deliver that on this ground, if on no other, the appeal should be allowed. I would allow the appeal and discharge the order of the Supreme Court and in lieu thereof order that the application for a writ of sequestration be dismissed with costs. This order would, of course, not prejudice any application that the respondents (the plaintiffs in suit number 1761 of 1961 in the Supreme Court of New South Wales in Equity) may make to that Court for an interlocutory injunction or any application to that Court to have the suit brought on for hearing at an early date.

[64]

In December 1961 another general election was to be held and, in October of that year, the respondent Morgan conducted a "public opinion poll survey" and prepared for the respondent a report of the survey. This set out inter alia a table with headings representing the various competing political parties. Under each heading there appeared the percentage of those who had taken part in the poll who had indicated that they would probably vote for that party at the forthcoming election. It compared these percentages with others which had been ascertained in earlier public opinion surveys and went on to forecast the probable result of the election. On 22nd October 1961 there was published, with the permission of the respondents, in a Sydney newspaper, the "Sun-Herald", a copy of these figures together with certain comment on and deductions drawn from them taken from but not identical with the contents of the report. On the same day, 22nd October 1961, there was published in the appellant's "Sunday Telegraph" what Morgan described as "the results of the said public opinion survey". This publication differed in many respects from the publication in the "Sun-Herald" but it contained some of the percentage figures which had appeared in that newspaper. The respondents thereupon applied to the Chief Judge in Equity by originating summons for an injunction to restrain the appellant from publishing "in any form whatsoever any Gallup Poll results in respect of which" they or either of them "have the copyright" and to restrain the appellant "from infringing the copyright" of the respondents or either of them "in any Gallup Poll results". The first of these prayers was based upon an allegation that there had been a breach of the District Court undertaking given in June 1959. On 24th November 1961 the originating summons was ordered to be stood over until the hearing of the suit upon the appellant giving the undertaking upon which the present proceedings are based and which I have set out at the beginning of this judgment. It was also ordered that the respondents proceed in the suit by statement of claim and this was later filed. An examination of the statement of claim discloses, and the fact does not surprise me, that the pleader felt some doubt as to what exactly was the meaning of the words "any Gallup Poll results" as used in the District Court undertaking and what was the literary work in which the respondents claimed to have copyright. The statement of claim drew a distinction between the "results" of a public opinion poll and "reports" prepared by the respondent Morgan recording or incorporating such "results". It alleged however that the respondents owned the copyright both in the "results" and the "reports" and sought to enjoin the appellant from (a) publishing "in any form whatsoever any Gallup Poll results in respect of which the respondents have the copyright", this being a reference to the District Court undertaking, and (b) from infringing the copyright of the respondents "in the results of any public opinion poll". It sought also a declaration that the publication in the appellant's newspaper of 22nd October 1961 was an infringement of the respondents' copyright "in the results of the public opinion poll" which had been carried out shortly before that date "as set forth in writing in the report of the said public opinion poll". In its statement of defence, the appellant put in issue inter alia the respondents' claim that the "results" of the public opinion polls conducted by the respondents or the reports incorporating such "results" were the subject of copyright. It denied that it had published "the results" of such a poll on 9th November 1958 or on 22nd October 1961 or that it had committed any breach of the District Court undertaking. The suit has not yet come on for hearing but it is plain that, if and when it does, at least two major issues will have to be decided. What is the true meaning of the words "Gallup Poll results", as used in the District Court undertaking, and whether those "results" can be and are the subject of copyright. These are difficult questions and it is not surprising that the parties have differed widely in their interpretation of the undertakings given by the appellant. We are, however, asked to decide in advance of the hearing of the suit matters which will there be raised and contested, in which further evidentiary material may be produced and which may ultimately come before this Court again on appeal. For reasons which will appear later I find it unnecessary to decide those issues in the present proceedings but if I had not reached that conclusion I would have been disposed to take the view that the present appeal should not be finally determined until the suit is heard and disposed of.

[107]

I express no opinion upon the correctness or otherwise of the interpretation adopted by his Honour. For the purpose of the present proceedings it is sufficient, I think, to refer to two cases. The first is Iberian Trust Ltd. v. Founders Trust and Investment Co. [1] . There the plaintiff, which had transferred certain shares to the defendant, sought a declaration that it was entitled to a return of a certain proportion of those shares. The action was tried by Rowlatt J. who declared that the plaintiff was entitled to "the return by the defendant" of the shares in question and ordered that "the plaintiff do have a return of the said shares within fourteen days from the date hereof". The shares were not returned and the plaintiff sought to enforce the order by attachment of two of the defendant's directors. Luxmoore J. said: "In terms, the order does not direct the defendant company to do anything - it says: "that the plaintiff do have a return of the said shares within fourteen days". Am I to spell out of that an order on the defendant company to do something? I think not. If the Court is to punish anyone for not carrying out its order the order must in unambiguous terms direct what is to be done" [2] . The second case is Redwing Ltd. v. Redwing Forest Products Ltd. [3] . The defendant in a passing off action had given certain undertakings which were embodied in an order of the Court. The plaintiff alleged that the undertakings had been broken and sought to have the defendant's directors attached for contempt of court and the defendant's property sequestrated. Jenkins J. refusing the application, said: "I cannot say I think that the undertakings contained in the order were clearly drawn and I cannot say I regard the questions of construction involved in them as entirely easy questions, but in my judgment, a defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken his undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question" [1] .

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Judgment (110 paragraphs)

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