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[1965] HCA 21
High Court of Australia
1965-04-30
Owen JJ
Original judgment source is linked above.
High Court of Australia Barwick C.J. Windeyer and Owen JJ. Australian Consolidated Press Ltd v Morgan [1965] HCA 21
ORDER Special leave to appeal granted. Appeal allowed with costs. Order of Supreme Court set aside and in lieu thereof order that the motion for leave to issue a writ of sequestration be dismissed with costs.
This is an application for special leave to appeal from an order of the Supreme Court of New South Wales in Equity imposing a fine of £1,500 upon the appellant "for and by reason of its contempt of Court in committing a breach of the undertaking given to the Court and set out in a decretal order dated 24th November 1961." Nothing appears from the order itself as to the person to whom the fine is to be paid or when, nor as to the ultimate destination of the amount of the fine when paid, nor as to the consequences of the appellant's failure to pay it. These things were presumably left to the operation of the general law and the Rules of Court. None of the Consolidated Equity Rules 1902 makes provision for any of these matters: but the General Rules of the Supreme Court do deal to some extent with fines imposed by the Supreme Court.
The appellant publishes a daily and a Sunday newspaper. It was the publication in an edition of its Sunday newspaper of an article concerning the prospects of the political parties in a then forthcoming Federal general election which was said to be a breach of an undertaking given by the respondent to the Supreme Court in a suit between the respondents (as plaintiffs) and the appellant (as defendant).
It is necessary that some of the events antecedent to the giving of this undertaking should be mentioned.
The first-named respondent is employed by the second-named respondent to conduct public opinion polls in Australia, at least six during the course of each year, in relation to then current matters of public interest. In conducting these polls, he used what is called the "gallup method". The second-named respondent claims to have acquired and to be entitled to the sole and exclusive rights within 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. It is far from clear what rights the second-named respondent really has in these respects, but it is apparent that it has made very wide claims in respect of the use of the words "gallup poll" and "gallup method" and as to its right to the use of the method itself. But, as I understand the matter presently under appeal, neither the width nor validity of any claim made by the second-named respondent in this respect has to be decided: nor indeed do I apprehend that these matters have any relevance, other than perhaps as furnishing some vague background to the choice of the language used in the undertaking given by the appellant.
The first-named respondent's method of conducting a public opinion poll is that, through the medium of a number of selected interviewers, he obtains from a number of citizens selected as representative in relation to the subject matter of the poll, answers to a series of questions, where possible in writing by the citizen and, where not so possible, recorded by the interviewers. The material thus obtained is collated and dissected so as to obtain, in the first place, numerical totals of those who favour one view or another in relation to the questions posed to them. These totals are then converted into percentages and, in some instances, tabulated. Subsequently, where there have been earlier polls on the same matter, these percentages are compared with the results of those earlier surveys, thus providing material from which either a trend or an actual change of public opinion can be discerned.
Having thus gathered, assembled, dissected, and, in an appropriate case, compared this material, the first-named respondent produces a report, of which a sample is in evidence in the proceedings now under appeal. This report is set out in the form of a news item ready for publication - what in newspaper circles might be called a press hand-out - complete with headline. The basic structure of the report is that the conclusion drawn by the first-named respondent from the material gathered in the poll, and attributed to the second-named respondent, is stated. Some details of the survey actually conducted are then set out. The time when it was conducted, the actual question posed to those interviewed, the percentages of those interviewed who indicated their support for the different points of view - in the instant case, for the various political parties - including in some instances those who were undecided, are all set out. Then follows in appropriate cases a statement of the comparative results of earlier polls. This comparison is set out in tabular form showing, for example, as in the instant case, the percentages of those interviewed who favoured each political party in turn, and, in some instances, of those who were undecided, as at the different dates on which the various polls were taken. There then follow some conclusions drawn from these tabulations. In the case of a forthcoming election, a prognosis is also provided as to how votes are likely to be cast on polling day. This may be set out both in tabulated form and discursively.
The second-named respondent has contracted with some publishers of newspapers in Australia, but not with the appellant, to make available to them copies of reports of the results of the public opinion polls conducted by it, the newspaper publisher being at liberty to publish the whole or part of what is thus supplied, the respondents presumably retaining such copyright as may exist in the reports.
It is apparent that the knowledge and information gained by the respondents by conducting these public opinion polls is something of value to them and, when made available to a newspaper publisher, of value to him for the purposes of his business. But the law does not give any proprietary right in knowledge or information. Under the laws of copyright, the literary form in which knowledge or information is conveyed or cast may be the subject of copyright and the person entitled to the copyright is able to restrain the use of that literary form either verbatim or in substance. However, the law has gone a long way in such cases, amongst others, as Kelly v. Morris [1] ; Scott v. Stanford [2] ; Canterbury Park Race Course Co. Ltd. v. Hopkins [3] ; T. M. Hall and Co. v. Whitington and Co. [4] and Football League Ltd. v. Littlewoods Pools Ltd. [5] to protect the labours of a man in producing and tabulating information.
Shortly before the Federal general election of November 1958, the respondents produced a report of a public opinion poll. The appellant thereafter, without the permission of the respondents, published in its Sunday newspaper matter which the respondents claimed infringed the copyright in the report of the result of the survey. They sued the appellant in the Metropolitan District Court at Sydney for damages for this alleged breach of copyright in "the report of a survey known as a "gallup poll" ". The action did not proceed as the plaintiff's claim was compromised. As well as paying the respondents' costs of action, the appellant gave the respondents a written undertaking in consideration that the respondents would not proceed with the action, "that it will not at any future time publish in any form whatsoever any Gallup Poll results in respect of which you the said Roy Edward Morgan and/or the said Company" (the second-named respondent) "has the copyright".
Although no doubt the respondents conducted a number of public opinion polls, in the meantime, there seems to have been no occasion for any complaint by the respondents of any breach by the appellant of this undertaking until the events which led to the commencement of the suit to which I will now refer.
The respondents conducted a public opinion poll in October 1961 and a report of it was duly prepared of which some parts were published in a newspaper owned by one of the newspaper companies with whom the second-named respondent had contracted. The appellant thereafter, without the permission of the respondents, published in its Sunday newspaper matter which they claimed to have been published in breach of the undertaking and also in breach of copyright in the report of the results of the public opinion poll. They thereupon commenced a suit in the Supreme Court in Equity by originating summons claiming an immediate injunction to restrain further breaches of the undertaking which the appellant had given and further infringements of copyright. Upon this originating summons coming before the Court on 24th November 1961, the appellant without prejudice and without admissions undertook "that it will not until the hearing of the suit or until further order by itself its servants or agents publish in any form whatsoever any gallup poll results in respect of which the plaintiffs or either of them have the copyright". The Court thereupon ordered that the originating summons stand over until the hearing of the suit and that pleadings be filed.
In November 1963 the respondents conducted a public opinion poll as to the voting trends in connexion with the then forthcoming Federal general election. A report of the results of this survey was prepared in the form to which I have already referred. This was made available to a newspaper publisher with whom the second-named respondent had such a contract as I have already mentioned. This newspaper publisher published an article in its newspaper on Saturday, 16th November, in which it substantially reproduced the report which the respondents had furnished it.
The appellant then in its Sunday newspaper, and again without the permission of the respondents, published an article which they claim broke the undertaking which had been given to the Court. Thereupon the respondents moved the Supreme Court for an order that they be at liberty to issue a writ of sequestration against the property of the appellant for its contempt "in wilfully disregarding and committing a breach of the undertaking given to this Court", claiming that the article published on Sunday, 17th November, by the appellant, was a wilful and deliberate breach, and asking that the sequestration of the appellant's property operate until the appellant should clear its contempt or the Court make some other order. On this application the Supreme Court in Equity made the order, the subject of the present appeal. It ordered the appellant to pay a fine of £1,500 for its contempt of Court by breach of the undertaking.
It is clear from the reasons expressed by the learned Judge that he did not do so by way of compensating the respondents for any loss they may have suffered by what his Honour found to be the appellant's breach of its undertaking or as a coercive measure to obtain compliance for the future: but to "mark the disapproval of the Court at the gravity of the breach which has been committed by the defendant".
The motion before his Honour was by the plaintiffs in the suit for what was in substance the enforcement for their own benefit of the undertaking given to the Court for their protection pending the hearing of the suit. The notice of motion was grounded upon a wilful breach of the undertaking and not upon a contumacious or defiant contempt of the Court. No evidence tending to establish contumacy in the appellant was led by the respondents. The proceedings were taken in and formed part of the original suit and were civil in their nature; the contempt alleged was a contempt in procedure, and no more.
A contempt in procedure by disobedience of an order of the Court or by breach of an undertaking given to it may be accompanied by such contumacy or defiance on the part of the party against whom the contempt proceedings are brought as evidences a criminal as well as a civil contempt. There is no reason in such a case why the same proceedings taken at the instance of the aggrieved suitor may not result in orders which are coercive of compliance with the Court's order or of an undertaking given to it and at the same time punitive of the criminal contempt: but this is not such a case.
The undertaking which was sought to be enforced was in terms identical with the contract (constituted by the earlier undertaking of the appellant) for breach of which the suit was in part brought. Further, the ambit of the undertaking, the denotation of its operative words was wrapped up to a significant degree with the extent to which the respondents had copyright in the reports of the results of public opinion surveys and with the question of the infringement of that right. The Court was therefore presented in the proceedings for contempt with at least the major part of the issues which had arisen for trial in the suit. I would not wish to say that it is never appropriate to hear and to determine before the hearing of a suit a motion for an order for committal or sequestration for contempt by breach of an order or of an undertaking where it is necessary in order to determine the matter to decide one or more of the major issues arising in the suit. Circumstances may arise in which this must be done if the plaintiff's rights, or the public interest in the maintenance of the Court's own prestige, are to be safeguarded. But, in my opinion, those circumstances must be somewhat special. In the ordinary course, the Court ought not, in my opinion, to attempt to resolve in the proceedings for contempt the question or questions which is or are to be litigated before it, no doubt at greater length and with greater attention to detail, at the hearing of the suit. The proper course, except in special circumstances, in my opinion, in such a case is for the Court to adjourn the contempt proceedings which cannot be determined without resolving a major question in the suit until the hearing of the suit itself.
If in such a case it appears to the Court that the respondent to the motion for contempt is threatening to commit acts which the Court apprehends may be breaches of the applicant's rights and a case is otherwise made out for such an order, then it seems to me the suitable course is for the Court to make an order forbidding the doing of some act or acts particularly described and thus safeguard the situation until the suit and the motion can be heard. If it is thought that the plaintiff may have suffered loss or damage by the conduct which it claims to be a breach of the order or undertaking, the Court can give the plaintiff leave to amend the pleadings to seek damages therefor in the suit.
In the present case there were additional reasons for adjourning the motion until the hearing of the suit. In the first place, the undertaking might in terms have afforded the respondents greater protection pending suit than success in the suit itself would ultimately give them. This, in itself, would not in the ordinary course necessarily be a reason for not enforcing an undertaking according to its terms particularly where the undertaking resulted from an arrangement inter partes from which the party giving the undertaking thought itself to be advantaged. But in this case, having regard to the actual terms of the undertaking, the apparent difficulty, if not the ambiguity, of its language, the close relationship between the undertaking and the basis of the respondents' causes of action, and the absence of any elements of urgency, there was, in my opinion, no reason for the Court to hasten to give to the respondent any greater interim protection than was properly to be granted by a final decree in the suit.
In the second place, the identification of what was to be understood by the expression "the results of the gallup poll in respect of which the respondents have copyright" was not merely a critical issue in the suit, but required a wider examination or consideration than ought to be possible upon a motion for contempt treated as an interlocutory proceeding in the suit.
The language of the undertaking gave rise at the hearing of the motion for contempt to widely divergent submissions by the parties as to its scope, and resulted in his Honour placing a construction upon it for which neither party contended. I am far from thinking that his Honour's interpretation was wrong. I am, on the other hand, not in the least persuaded that the narrow and somewhat pedantic meaning sought to be given to it by the appellant was right. As the suit has yet to be heard, doubtless on further material than was placed before the Court on the motion, I do not feel called upon to express any concluded opinion upon the connotation or denotation of the expression, "results of the gallup poll in respect of which the respondents have copyright". It is sufficient for my purposes to express the opinion that that question ought not to have been resolved in the motion for contempt but ought to have been reserved for the suit. If the motion had been one for an interlocutory injunction, or if the Court had taken the course on the motion for contempt of enjoining the appellant from some specified conduct until the hearing of the suit, the Court could have taken a provisional view of the construction of the agreement between the parties, and of the extent of the respondents' copyright, and upon that view framed appropriate interim orders. But, in that event, the Court would have had both the respondents' undertaking as to damages and its own power of varying interlocutory orders, or even, in an appropriate case, of refusing to enforce them by contempt proceedings. By contrast, in the present proceedings, the Court has adopted a concluded view of the construction of the agreement between the parties and upon that construction has made what is in substance a final order.
There is one other aspect of the matter to which I wish to advert. Let it be assumed that the language of the undertaking must in the long run bear the meaning and denote the things which the Court has decided it has or does: yet in proceedings for contempt for breach of the undertaking, it is not enough that the Court is satisfied of that meaning or denotation. I think it ought also to be satisfied that that meaning or denotation is such as the appellant might fairly be expected to have contemplated when giving the undertaking. I do not mean that the Court must be satisfied that the appellant gave the undertaking in that sense. It is sufficient that that sense is one which the appellant ought fairly to have had in view as a sense in which the undertaking could be understood. In this case his Honour did not proceed so far in his consideration of the matter. He was prepared to take the view - and, in my opinion, there was in reality no evidence to support it - that the appellant had acted upon a construction actually placed by it upon the undertaking, though mistakenly. Though his Honour thought that construction erroneous he did not scout it as an impossible view. However, he did not decide that the view which he favoured was one which ought to have been in the contemplation of the appellant when giving his undertaking. It may well be that upon the material before his Honour, there being no evidence from the appellant and nothing more than its assertion made out of Court that it had the right to do as it did, it may be possible to draw the necessary conclusions in this respect. But, having regard to the view I entertain as to the propriety of the order actually made by his Honour, I do not myself propose to express any view on the point.
The appellant submitted that unless the language of the undertaking was unambiguous and certain, it should not be enforced by contempt proceedings: and sought support for the submission in Redwing Ltd. v. Redwing Forest Products Ltd. [1] and Iberian Trust Ltd. v. Founders Trust and Investment Co. [2] . In my opinion, these authorities do not support this conclusion. If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense which the Court assigns to it. If the Court is satisfied that the party said to be in contempt bona fide believed himself bound only by a construction which the Court thinks to be erroneous, it may for that reason, in its discretion, refuse to make an order or, if it makes an order, refuse to make an order for costs against that party. But, even in such a case, the enforcement of the plaintiff's rights must not be left out of account. A party who has bona fide acted on an erroneous view of an order or undertaking may, according to the circumstances, none the less be justly adjudged guilty of contempt in procedure. In my opinion, this is equally so where, because of its terms or circumstances, the order or undertaking requires construction in order to determine its meaning and remove ambiguities patent or latent.
I now turn to the order which his Honour made. If there were no valid objections to this order, the criticisms which I have so far offered of the course taken by his Honour would not have led me for those reasons to intervene to set aside his order. I would have regarded what he had done as no more than an erroneous exercise of his discretion with which I should not in this case interfere. But, in my opinion, there is a serious objection to the order which his Honour made: he ought not in this case, in my opinion, to have imposed a fine.
I do not propose to discuss in this judgment the jurisdiction of the Supreme Court in Equity to order the payment of a fine for a contempt in procedure as I find it unnecessary to decide that question in order to resolve this application; and, in addition, the point was not argued before us. Suffice it to say that if the Court has such a jurisdiction, the imposition of a fine is not usually a means of coercing performance of an order or an undertaking or of compensating an aggrieved party for a breach of it. The fine is, of its very nature, punitive, better fitted for an occasion of criminal contempt where elements of contumacy or of defiance of the Court are present. I do not think that in this case the imposition of a fine was calculated to coerce compliance with the undertaking, and, in any case, it is clear that his Honour did not impose it for that purpose. Thus, as the present case was one of contempt in procedure, I am of opinion that the imposition of a fine was inappropriate.
If, on the other hand, the basis of his Honour's order had properly been the contumacy of the appellant, I would have regarded the course taken by his Honour as inadequate; a more drastic course would, in my opinion, be required in a case where a newspaper proprietor contumaciously defies the Court. Although I would not in any degree dissent from his Honour's observations upon the responsibilities of the Press, I do not think that there was any evidence of contumacy on the part of the appellant. Its action in transcribing into its own newspaper some part of the publication in the Melbourne Herald was deliberate and, if in breach of contract or of copyright, was not excused by the attribution of portions of its publication to alleged utterances of a Minister of State, but this would not amount to more than wilful disobedience of the Court's order by breach of the undertaking.
In my opinion, therefore, the order imposing the fine upon the appellant should be set aside. The question of what should be done with the motion for leave to issue the writ of sequestration has given me some difficulty. If that motion had been adjourned to be heard with the suit, a further examination of the facts and a more detailed consideration of the rights of the parties might have resulted in some order on the motion against the appellant. Consequently, there is something to be said for the course of setting aside the order but adjourning the further hearing of the motion until the hearing of the suit. However, as against that course, there is the consideration that the respondents appear to have presented the matter to the Supreme Court as one for immediate decision and to have submitted to that Court that the course of imposing a fine on the appellant was open to the Court in the circumstances of the case.
I have come to the conclusion that the order of the Supreme Court should be set aside and that the motion for leave to issue a writ of sequestration should be dismissed, but without prejudice to the respondents being given leave to amend their statement of claim to claim damages for the appellant's publication which they have claimed to have been in breach of the undertaking.
The present application is one for special leave to appeal. In my opinion, there is no right of appeal from the Supreme Court's order imposing a fine upon the appellant. Such an order does not fall within s. 35 (1) (a) of the Judiciary Act 1903-1960 Cth. We have heard a full argument and are in a position to dispose both of the application for special leave to appeal and the consequential appeal. I would grant special leave to appeal and allow the appeal, setting aside his Honour's order and dismissing the respondents' motion in the Supreme Court.
In my opinion no appeal lies as of right in this case. An appeal might be had only by special leave of this Court. The appellant, recognizing that this might be the position, filed both a notice of appeal and a notice of motion for special leave to appeal.
This is not a case of a criminal contempt, such as a contempt in the face of the Court or a contempt by impeding the course of justice. The complaint here was of a contempt in procedure, a "civil contempt" as it is sometimes called, arising by an alleged disobedience of an undertaking given in the Supreme Court. To the differing consequences of criminal and civil contempt I shall come later.
At this point it is only necessary to say that in this Court the distinction has no bearing upon the question whether or not an appeal lies. In other jurisdictions it has: Halsbury's Laws of England, 3rd ed. vol. 8, pp. 46, 47; Joseph Orakwue Izuora v. The Queen [1] . A right of appeal to this Court must be found in s. 35 of the Judiciary Act. I do not think that such a right arises upon the mere imposition of a fine, whatever be the amount of it: see De Bortoli v. Kenny [2] . It is perhaps unnecessary to express any final view on this aspect, for we heard this matter at length as if special leave had been given. It was urged that we should do so, because it was said important questions of copyright law are involved. But those questions must arise for determination in the suit now pending in the Supreme Court, and I think that we ought not, on the material now before us, to pass judgment upon them. Therefore, if it were not that I have come to the conclusion, for reasons that I shall give, that this appeal should be allowed without our having to give any decisive answer to those questions, I would not be prepared to do more at this stage than grant leave to appeal.
It is necessary to notice how this matter arose; but I am relieved from stating the facts at length, for they are fully set out in the judgment to be delivered by my brother Owen.
In 1959 an action was brought in the District Court of the Metropolitan District in New South Wales by the present respondents as plaintiffs against the present appellant as defendant. It was discontinued by the plaintiffs in consideration of an undertaking by the defendant and the payment by it of the plaintiffs' costs. The defendant's undertaking was in writing in the following terms: "That it will not at any future time publish in any form whatsoever any Gallup Poll results in respect of which you the said Roy Edward Morgan and/or the said company (scil. the second of the present respondents) has the copyright."
Although this has been referred to as "the District Court undertaking" it was not an undertaking to the District Court. It was a contractual undertaking given out of court. Being an express negative contract and the consideration for it having been executed, it is, if sufficiently precise, enforceable in equity by injunction.
The appellant afterwards published in its newspaper matter of which the respondents claimed to have the copyright. They thereupon commenced a suit in the Supreme Court of New South Wales in Equity for an injunction. Their claim is put upon two grounds - one for the enforcement of the undertaking given in 1959, the other to restrain infringement of copyright. The suit was instituted by an originating summons for an immediate injunction. But when this came on before the Chief Judge in Equity he ordered that the matter stand over until the suit be heard after the filing of a statement of claim. This order was made, as it recites, "upon the defendant (the present appellant) by its counsel, without prejudice and without admissions, undertaking that it will not, until the hearing of the suit or until further order, by itself its servants or agents publish in any form whatsoever any Gallup Poll results in respect of which the plaintiffs (the present respondents) or either of them have the copyright". This it will be seen is a repetition in terms as an undertaking to the Court of the contractual undertaking given on the settlement of the action in the District Court: but it is a purely interlocutory undertaking.
Thereafter the events occurred which the respondents say were a breach of this undertaking. Whereupon they filed a notice of motion in the Supreme Court in Equity seeking liberty to issue a writ of sequestration against the appellant for "its contempt in wilfully disregarding and committing a breach of the undertaking". On the motion coming on to be heard before Else-Mitchell J., argument took place as to the scope of the undertaking, and in particular as to the effect of the words "any Gallup Poll results in respect of which the plaintiffs or either of them have the copyright". His Honour gave that expression a meaning which was not that for which either party had contended. He found that the undertaking in the sense that he gave it had been broken. He asked counsel for the applicants (the present respondents) what courses were available to him. It appears from his judgment that he was told by counsel that he could impose a fine or issue a writ of sequestration, or impose a fine and issue a writ of sequestration as a means of compelling payment of the fine, or merely make an order for the payment of costs. In the result he imposed a fine of £1,500. The order does not say to whom the fine is to be paid nor when it is to be paid.
His Honour's power to impose a fine was not questioned before us. The notice of appeal says only that "it was not a proper exercise of his Honour's discretion to impose the said fine". But, although it was not contested, I am not satisfied that the Supreme Court in Equity has any power to impose a fine, or to estreat a fine, for a civil contempt. An undertaking given to the Court is equivalent to an injunction. Observance of it may be enforced in the same way as an injunction is enforced; for a breach of an undertaking is, like disobedience of an injunction, a contempt of court, making the contemner liable to imprisonment either by attachment or committal until his contempt be cleared. Strictly, the proper process for breach of an undertaking by an individual to abstain from doing something seems to be committal, not attachment: see Mander v. Falcke [1] ; In re Evans; Evans v. Noton [2] ; D. v. A. & Co. [3] . But the distinction between attachment and committal has ceased to be important in England: and in New South Wales a motion for attachment has for long been the process adopted against an individual who disobeys an injunction or breaks his undertaking: Parsons v. Gillespie [No. 1] [4] . In the case of a corporation disobeying an injunction or breaking an undertaking the proper course for the opposite party to take is to move that a writ of sequestration issue.
In Halsbury's Laws of England, 3rd ed. vol. 8, p. 41, it is said that "In case of criminal contempt the court may impose a fine, the amount of which is in the discretion of the court, either as an alternative or in addition to committal or attachment ". This statement is I consider accurate, both in its assertion of the power and in limiting it to criminal contempt. It is true that in R. v. Davison [1] Lord Tenterden, then Abbott C.J., said that "no lawyer can doubt the power of every Court to fine for contempt". But he was there speaking in reference to a contempt in the face of the Court, a form of criminal contempt. The matter was more completely stated by Best J. in the same case when he said: "No man who pretends to any knowledge of the law can doubt that a Judge of a Court of Record has authority to fine or imprison for any contempt committed in the face of the Court" [2] . There is no doubt of the power to fine a corporation for a criminal contempt: R. v. J. G. Hammond & Co. Ltd. [3] . The power has been not infrequently exercised in Australia in a salutary way against newspaper companies for publishing matter calculated to prejudice the fair trial of pending proceedings. Publication of such matter is a criminal offence, a common law misdemeanour, triable either on indictment or summarily as a contempt. The power to fine in such cases thus arises from the ancient rule of the common law that all crime is punishable by imprisonment or by fine. Until modern times a fine was rarely imposed for treason or felony, but a fine was always a common penalty for a misdemeanour. A court having power to fine or imprison for a crime may do either at its discretion; and, unless limited by statute, the amount of a fine is in the court's discretion, provided it is not so inordinately heavy as to conflict with the Bill of Rights: see R. v. Morris [4] , per Lord Goddard C.J. [5] .
The undoubted power to fine for criminal contempt merely strengthens my misgivings about the fine in this case, for disobedience of an injunction or breach of an undertaking is not a criminal offence. If authority for that be wanted, the following will suffice. In Scott v. Scott [6] Lord Atkinson, after referring to several cases, said: "It was contended that these cases show that the disobedience of an order of Court constitutes in itself a crime, a criminal contempt of Court. Unfortunately for this contention, however, they do something more than that; they show I think, conclusively, that if a person be expressly enjoined by injunction, a most solemn and authoritative form of order, from doing a particular thing, and he deliberately in breach of that injunction, does that thing, he is not guilty of any crime whatever, but only of a civil contempt of Court" [1] . And in New South Wales, more than sixty years ago Walker J. spoke of "the mistaken view that all the offences generically known as contempts stand on the same footing, and that all contempts are criminal and must be dealt with as though they were the subject of a criminal indictment". "This", he said, "is not so." Dealing with an application for the sequestration of the property of a trade union that had disobeyed an injunction he said, "This is not an application by the plaintiff that the Court should exercise its criminal jurisdiction, and punish the union for a criminal offence; it is a step in the suit by which the plaintiff endeavours, by the only means open to him, to enforce against the union the injunction of the Court": Keogh v. The Australian Workers' Union [2] .
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.
It is true that in the sixteenth and seventeenth centuries, when the Chancellor's Court was with some difficulty asserting its authority, it sometimes made use of severe fines, in addition to other measures, to force recalcitrant persons to submit to its jurisdiction and to obey its decrees: see Spence, Equitable Jurisdiction, vol. II, p. 392; Ashburner on Equity, 2nd ed. (1933) p. 31; and Strahan's Digest of Equity, 6th ed. (1939) p. 433. And I am aware that in Comyn's Digest, under "Chancery" Y4, it is said that a defendant committed for disobeying a decree shall not be discharged until he performs the decree in all things presently to be performed and gives security for the performance of the parts to be performed in the future and that "the Chancellor also may fine him for the contempt and estreat the fine". The authority given for this is the Practical Register in Chancery. That work, first published in 1714 and in an enlarged form in 1800, has not been available to me. But, whatever the practice in times long past, I have not found in any modern textbook any support for the proposition that a fine can be imposed for a contempt not criminal. This is not, as far as I have noticed, suggested in Daniell's Chancery Practice or in Seton on Decrees, in either the edition before or those after the Judicature Acts, or in any other work that I have consulted.
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] .
It is true that a fine may - depending upon its amount - be a less severe consequence of disobedience than attachment or committal in the case of an individual or sequestration in the case of a company. But that does not, to my mind, show that a power to fine is a legal or logical alternative to the other remedies. Moreover their severity can be exaggerated. A writ of sequestration may be ordered to issue without being immediately executed. It is often ordered to lie in the office until the contempt be cleared by submission, making reparation for past disobedience and payment of costs. And even when the property of a contemnor is actually sequestered and held under sequestration it is not confiscated. The contemnor is deprived of the enjoyment of his rents and profits for the duration of the sequestration; but he does not forfeit his property in them. When whatever is considered necessary to clear the contempt has been done, the sequestration is discharged by the order of the Court: and the sequestrators must then give up possession on having their costs and expenses. As it is put in Bacon's Abridgment under "Sequestration", "Then whatsoever hath been seised shall be accounted for and paid over to him (the party whose property was sequestered). However, the court have the whole under their power, and may do therein as they please and as shall be most agreeable to the justice and equity of the case". Sometimes it may be appropriate that the proceeds of the sequestration, or part thereof, should be applied to the discharge of an equitable obligation, as for example by a direction that equitable debts, the non-payment of which had led to the sequestration, be first paid out of the fund; or that the fund be applied so far as necessary in reparation of the damage caused by the contemnor's disobedience. But this only illustrates again that sequestration for a civil contempt is coercive and compensatory rather than punitive.
Decisions of courts in the United States accord with the view that I have expressed. It is recognized there that the line between civil and criminal contempt cannot always be sharply drawn, for conduct by a litigant may amount to both if he not only disobeys a court's order but does so in a deliberately defiant way. Mere breach of an injunction is, however, not criminal. As Rugg C.J. expressed it in the Supreme Court of Massachusetts: "There is the simple averment of violation of the injunction. Of course that in itself is wrong enough; but there is not about it necessarily a distinctively criminal feature. It does not go so far as to show acts in wilful defiance of the authority and power of the court, except as failure to conform to any lawful order of a court partakes to some extent of defiance. Examining only the nature of the acts here alleged to constitute the contempt, they cannot be pronounced as matter of law to be aimed at the integrity of the courts and designed to degrade the administration of justice as distinguished from a simple interference with property rights manifested by a decree entered for the benefit of a party": Root v. MacDonald [1] . In the American decisions the character and purpose of the punishment reflect the distinction between civil and criminal contempt. For a purely civil contempt a fine, so called, may be imposed; but it is made payable to the party injured by the contempt to make good his actual loss: United States v. Mine Workers of America [2] ; Gompers v. Bucks Stove & Range Co. [3] ; Leman v. Krentler-Arnold Hinge Last Co. [4] . This corresponds to English doctrine in which a contemnor in order to purge his contempt must make reparation to the party injured by it. The American fine for civil contempt thus corresponds to our assessment of damages or account of profits. Its purpose is primarily compensatory. It has no resemblance to, and gives no support for, the imposition of a fine in the present case.
However, let it be assumed that my doubts are unfounded and that his Honour had power to impose a fine. The question then is, Was the case one in which his doing so was a proper exercise of his discretion? I would be reluctant to see this Court interfere with any lawful action that the Supreme Court thought it necessary to take for the enforcement of its orders or the vindication of its authority. And I do not question his Honour's general observations about the duties and responsibilities of newspapers. But, even on the basis that a power to fine exists, we are not asked simply to review the exercise of a discretion in a clear case of a contempt. Logically the first question is, Was there a breach by the appellant of its undertaking to the Court? That involves a consideration of the true meaning and scope of the undertaking. The second question is, If there were a breach of that undertaking, was the case one in which it would be in accordance with established principles to order a writ of sequestration to issue (or to impose a fine, jurisdiction to do so being for the purpose of the argument assumed)? But it is convenient to consider the second question first.
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.
His Honour said that the appellant's having acted on a mistaken construction of the undertaking did not mitigate the breach of it, construed as his Honour held it should be construed. But, with respect, I cannot altogether agree. This is not a case in which the extent of obligations undertaken is ascertainable simply by construing the undertaking according to ordinary grammatical rules. If that were so, I would agree that a mistake in construction could not excuse disobedience, although it might perhaps mitigate its consequences. Those who give undertakings to a court are bound by the language they use. If its true meaning, although not immediately plain, can be ascertained according to ordinary rules of construction, then the person giving the undertaking is bound by it in that sense. But the uncertainties that lurk in the words of this undertaking, and which were exposed during the argument, cannot be resolved in that way, for they do not arise from a debatable construction but from an uncertain denotation.
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.
An application for leave to issue a writ of sequestration against the appellant Company was heard by Else-Mitchell J. in the Supreme Court of New South Wales on 28th November 1963. The applicants for the writ, the respondents to this appeal, alleged that on 17th November 1963 the appellant had committed a contempt of court in that it had wilfully broken an undertaking given by its counsel on its behalf on 24th November 1961 when an originating summons came before the Chief Judge in Equity in which the present appellant was the defendant and the present respondents were plaintiffs and which was adjourned. The undertaking was that the defendant without prejudice and without admissions would not until the hearing of the suit or until further order by itself its servants or agents publish in any form whatsoever any Gallup Poll results in respect of which the plaintiffs or either of them had the copyright, and it was upon this undertaking being given that the originating summons was ordered to be stood over until the hearing of the suit and it was incorporated in the order.
The breach of the undertaking was said to have occurred on 17th November 1963 when certain matter was published in the "Sunday Telegraph" of which the appellant was the proprietor. Else-Mitchell J. was of opinion that this publication was in some respects a breach of the appellant's undertaking. It had, he thought, acted upon a mistaken view of its construction. He found that it had committed a contempt of court, fined it £1,500 and ordered it to pay the costs of the application.
It is necessary to give an outline of the facts which led up to the institution of the proceedings for contempt. At all relevant times the respondent Company has claimed to have acquired the exclusive rights within the Commonwealth to the use of the names "The Gallup Method" and "Gallup Poll" and to the use of the "Gallup Method" of conducting "public opinion poll surveys". In 1958 it agreed with the respondent Morgan that the latter should conduct a series of "public opinion polls" in accordance with the "Gallup Method" and supply the "results" thereof to the respondent Company. From time to time Morgan has conducted these "public opinion polls" and with the aid of the information obtained from them supplied written reports to the respondent Company. The respondents claim to own the copyright in these "results" and "reports".
Shortly before 9th November 1958 the respondent Morgan conducted a "public opinion poll" and wrote a report on it headed "Gallup Poll Tips Win for Menzies". It stated that at the forthcoming Federal Election to be held in December 1958 the Government was likely to be returned to power according to the "latest Gallup Poll"; that in reply to questions asked of them 43% of those interviewed had said they would vote Liberal or Country Party; 40% A.L.P.; 7% D.L.P.; 1% Independent, leaving 9% still undecided. It proceeded then to tabulate these percentages with those obtained on earlier polls and, by comparing these sets of percentages, offered a forecast of the way the voting would probably go at the election. On 9th November 1958 the appellant published in the "Sunday Telegraph" a statement headed "Survey predicts win for Menzies Government". The statement referred to the percentages which had been contained in the report made by Morgan and set out (inter alia) the comparative table which had been contained in that report. It was published without the consent of the respondents who thereupon issued a summons out of the District Court alleging that they were the owners of the copyright in a "certain literary work that is to say a report of a survey known as a Gallup Poll" and that the appellant had infringed that copyright by the publication in its newspaper. For this they claimed damages.
In June 1959 the action was discontinued upon the appellant giving the respondents a written undertaking prepared by the latter's solicitors that it would not "at any future time publish in any form whatsoever any Gallup Poll results in respect of which you, the said Roy Edward Morgan and/or the said company has the copyright". I will refer to this as "the District Court undertaking". It is in all relevant respects in the same terms as the later undertaking of 24th November 1961 upon which the present proceedings are based.
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.
To explain why I think it unnecessary to decide in the present proceedings the matters which are raised in the suit I must make further reference to the facts as they appear before us. The method of conducting a "public opinion poll survey" according to the "Gallup Method" for the purpose of forecasting the probable outcome of an election was explained in some detail by Morgan. A number of persons, representing what is thought to be a cross-section of members of the public eligible to vote, is selected. Each of the persons selected is interviewed and asked inter alia to indicate on a ballot paper the political party for which he or she intends to vote. Those who are willing to participate in the exercise are given ballot papers designating the various parties taking part in the election. They indicate in it the party of their choice or may mark the paper "undecided". The ballot papers are then placed in a ballot box carried by the interviewer and are ultimately returned to a central office where each paper is allocated to its appropriate party or to "undecided", as the case may be. The votes are counted and the actual figures thus obtained are turned into percentages of the total number of those who have cast a vote. So far, at least, no literary work capable of being the subject of copyright appears to have come into existence. These percentages are then set down in the form of a table in a report along with percentage figures derived from earlier "public opinion polls". From a comparison of the percentages, inferences are drawn and stated in the report as to the trend of public opinion as it is likely to be expressed at a forthcoming election.
As I have said earlier, the respondents allege that the appellant had wilfully breached its undertaking of 24th November 1961 by a publication which appeared in its newspaper on 17th November 1963. Shortly before that publication appeared Morgan had conducted a "public opinion poll survey" relating to an election to be held a few weeks later and had written a report of the survey for the respondent Company which was sent by it to a Melbourne newspaper and also to the "Sun-Herald", a Sydney newspaper. It was published in the Melbourne paper on 16th November and in the "Sun-Herald" on the following day. The report was headed "Public Opinion News Service" with a sub-heading "Electors lean slightly to L C P". It went on as follows:
Since the Federal election was announced four weeks ago, support for the Government has risen slightly to a level which could return it to office with a small majority, judging by a Gallup Poll taken last week-end.
Interviewing was done after the policy speeches had been given by the Labor leader, Mr. Calwell and the Democratic Labor Party leader, Senator Cole, but before the Prime Minister, Sir Robert Menzies, and the Country Party leader, Mr. McEwen delivered theirs.
People's voting intention seven days ago, shown in the last column of the following table, records a slight reaction from a sharp swing to the ALP in the eight weeks between presentation of the budget and announcement of the election.
Aug Oct Nov % % % ALP 44 47 45 DLP 6 5 7 LCP 45 42 43 Ind. 1 1 1 Undecided 4 5 4
For the first time in an Australia-wide Gallup Poll on election prospects, everybody interviewed last week-end was handed a ballot paper. Each was asked to mark "The party you favour today", and to drop the papers into ballot boxes carried by the interviewers.
The same method was used experimentally in half of the interviews in similar Australia-wide Gallup Polls in August and October. They provided the percentages in the first and second columns above. In October, use of the ballot papers and boxes cut the "undecided" group from 12% to 5%, and now it is only 4%. After allocating them, party support last week-end was ALP 47%, DLP 7%, LCP 45% and Independent 1%. Comparison of these percentages with similar Gallup Polls since the last Federal Election, as in the next table, shows that since the election was announced, there has been a swing of 3% from ALP to LCP and DLP, to about the same position as last April.
ALP DLP LCP IND % % % % 1962 Feb. 52 4 44 - June 51 5 43 1 Aug. 52 5 42 1 Oct. 50 5 44 1 1963 Feb. 49 5 45 1 Apr. 47 6 46 1 June 46 6 47 1 Aug. 46 6 47 1 Oct. 50 6 43 1 Nov. 47 7 45 1
In the past, the DLP vote at Federal elections has usually been 3% or 4% higher than in Gallup Polls. By using ballot papers and boxes, however, the undisclosed DLP vote now seems to be less than 2%. Allowing for that, and if there is no change in the final three weeks of campaigning, the vote on November 30 may now be estimated as ALP 46%, DLP 9%, LCP 44%, and Independent 1%.
Those figures would be midway between the 1958 election (won easily by LCP, aided by DLP preferences) and the last election, which returned an almost evenly-divided House:
Election Results 1954-1961 ALP DLP LCP Ind % % % % 1954 51 - 48 1 1955 45 5 49 1 1958 44 9 46 1 1961 48 9 42 1
This week-end the Gallup Poll is conducting a special experimental survey of only 400 interviews in 20 marginal city electorates using "probability" sampling.
The finding, to be published in Sunday Sun Herald next Sunday, will be of special interest, as similar small surveys have given accurate forecasts before seven Federal elections from 1949 to 1961. The Gallup Poll's final forecast of the vote on November 30 will be published in Sunday Sun Herald on election eve. It will be based on interviews throughout Australia seven days before voting.
On 17th November 1963, the "Sunday Telegraph" published the following: Swing to Menzies
Public opinion has swung back to the Menzies Government, according to a poll published in Melbourne yesterday.
The poll, taken last weekend, indicated that the Government would be returned to office at the November 30 election.
The combined Liberal-Country Party and DLP vote would be five per cent higher than the vote for the ALP, the poll shows.
The DLP has announced that its preferences will go to Government candidates.
Interviewing for the poll was done after the Labor Leader (Mr. Calwell) and the DLP Leader (Senator Cole) had made their policy speeches.
But this was before the policy speeches of the Prime Minister and the Country Party Leader (Mr. McEwen).
Government supporters claim that the swing has become even greater since the Prime Minister (Sir Robert Menzies) made his policy speech.
The Minister for Health (Senator Wade) said the Gallup Poll figures showed that people were not being hoodwinked by the rash promises of Mr. Calwell.
This was particularly so since the poll was taken before the Prime Minister had delivered his policy speech.
I expect the swing away from the ALP to the Government to be greater since the Prime Minister's television broadcast and after the people heard that Mr. Calwell intends to cut the drug bill by £25 million a year, leaving only a paltry £8 million for a scheme that has done so much for the community.
The Minister for Labor and Industry (Mr. McMahon) said there had been a definite swing to the Government after the Labor Party delivered its policy speech.
Mr. McMahon said he had received figures which showed that since the Federal election was announced support for the Government had increased.
These figures show how support for the ALP has dropped from 47 per cent in October to 45 per cent in November.
This compares with an increase of from 42 per cent to 43 per cent in favor of the Government parties.
It is quite obvious that Mr. Calwell's speech lost the ALP a lot of votes
It is equally obvious that since the Prime Minister's speech the swing is continuing in favor of the Liberal - Country Party.
This is because Mr. Calwell promised the world but the world knows his promises cannot be fulfilled.
Since the election announcement there has been a swing of about three per cent from the ALP to the Government.
People know that the Menzies policy is a sensible one, particularly his proposals for housing and education which have met with warm approval.
The Minister for National Development (Senator Sir William Spooner) said he was "pleased but not surprised" at the poll figures which showed the swing.
"I am not the least surprised to hear of the trend towards the Government", Sir William said.
An important factor in this election campaign is the Government's housing policy.
There is such general dissatisfaction with the N.S.W. Government's negative policy that there is relief and approval at the Federal Government's decision to enter into housing in such a decisive way.
But the real issues of this election are defence and security.
The voters must decide whether or not to confirm the important agreements made between this country, America and Britain or consider the irresponsible alternatives sponsored by the ALP.
It is apparent from a conversation between Morgan and the managing director of the appellant, which occurred during the night of 16th November, that the respondents considered that this publication which they had apparently heard was to be made would be a breach of the appellant's undertaking while the appellant's managing director took the view that the undertaking related only to the tables contained in the respondent's report and that what it was about to publish would not constitute a breach of that undertaking.
Now there are, it seems to me, several possible meanings to be given to the words "Gallup Poll results" as used in the undertaking. For instance, they may refer to the allocation of the votes cast in a "public opinion poll" to the various political parties named on the ballot papers collected by the interviewers and the totals of those votes. They may refer to the expression, in the form of a table, of those voting figures in percentages of the total number of votes cast. Another possible meaning, and it is the one for which the respondents contended, is that they refer not only to the percentages thus obtained and reproduced in a table but also to the deductions drawn from a comparison of those percentages with percentages obtained on other "public opinion polls". In other words a "Gallup Poll result", so it is said by the respondents, is the whole of the contents of a report on a "public opinion poll" such as is made by the respondent Morgan to the respondent Company. Yet another possible view was that taken by Else-Mitchell J. His Honour considered that the undertaking was directed to the arrangement in the tables in the reports made by Morgan not only "of the letters of the political parties and the numerals in percentages as mere hieroglyphics but also in the literary substance or sense that the arrangement was designed to convey". In these circumstances his Honour held that the statements attributed to Mr. McMahon in the "Sunday Telegraph" of 17th November 1963 that he had received figures showing that support for the A.L.P. had "dropped from 47 per cent in October to 45 per cent in November" and that "this compares with an increase of from 42 per cent to 43 per cent in favor of the Government parties" was a breach of the appellant's undertaking.
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] .
With these statements of general principle I agree. In my opinion the ambiguity of and lack of precision in the appellant's undertaking which, it should be remembered, was originally drawn by the respondents' solicitors in the District Court proceedings are such that a finding of contempt should not be made.
Two further matters remain to be mentioned. The first is whether the appellant has an appeal as of right or only by special leave. I think it unnecessary to decide that question. Special leave was sought and if it is necessary the questions involved are such that it should be granted. The second matter, which was not raised before us, is whether Else-Mitchell J. had power to impose a fine. On that I share to the full the doubts expressed by my brother Windeyer whose judgment I have read. For the reasons which I have given earlier, however, I am of opinion that the appeal should be allowed and in those circumstances it is unnecessary to enter upon that question.
Australian Consolidated Press Ltd
Morgan