Federal Court of Australia|1989-12-20|Before: Pincus J, Mr P

The applicant brought proceedings in this Court on 2 November 1988 to restrain the publication of information, video-tapes and the like, provided under an agreement of 31 October 1988, relating to one James Finch; the proceedings were based on the law of copyright as well as that of contract. On 1 November 1988, an interim injunction was granted ex parte restraining the respondents from publishing such material.

2. Messrs Dermot O'Brien and Derryn Hinch are charged with having committed contempt relating to the order; they were not respondents to the principal proceedings but the applicant's case is that, knowing of its content, they acted in such a way as to frustrate its effect: Attorney-General v. Leveller Magazine Ltd (1979) AC 440. The expression "the respondents" in these reasons, without addition, will be used as a reference to O'Brien and Hinch. They were at relevant times respectively the producer and executive producer of a television show formerly called "Hinch at Seven", now called "Hinch". The complaint is that, knowing of the injunction, the respondents showed material which is fully set out below.

3. Although there was a considerable amount of evidence called, in the rather protracted hearing, the principal point at issue is whether it was proved against the respondents that they understood that the Court's order applied to publishing information on certain video-tapes, as well as the tapes themselves. As will appear, I am satisfied that the respondents became aware that the publication of information was covered by the order and reject the contention that they were given to understand, or understood, that the order related only to the use of the tapes themselves.

4. In 1973, there was a mass killing in Brisbane at a place of entertainment called the Whisky Au-Go-Go. Two people were convicted of murder, one being named James Richard Finch. The affair attracted enormous public attention at the time and received subsequent media treatment on many occasions. Finch, having been released from prison, went to London in 1988. He discussed the murder case with one Dennis Watt, the Chief of Staff of the applicant, by telephone from London. In October 1988 Watt went to London with another employee to interview Finch. Their purpose was to obtain material to publish in the applicant's daily newspaper, "The Sun".

5. Interviews were conducted over some days and part of them were sound recorded and others video recorded. Watt returned to Australia shortly after the interviews, bringing with him video-tapes. The tapes contain assertions by Finch which, whether accurate or not, proved to be of considerable interest to the public, even so many years after the Whisky Au-Go-Go incident.

6. The applicant, on 31 October 1988 and subsequent days, published stories written by Watt on the basis of his interviews, and they appeared to raise the circulation of the newspapers, at least temporarily, by many thousands of copies.

7. On 31 October, the applicant also made an agreement about use of the tapes with what was referred to in evidence as the "Seven Network", a group which included the respondents to the principal proceedings, Brisbane T.V. Limited, Herald-Sun T.V. Pty Ltd, and H.S.V. Channel 7. The applicant received $40,000 as consideration under the agreement.

8. There was some argument at the hearing of the charges with which I am concerned as to the true effect of the agreement and the extent to which the circumstances surrounding its making were relevant to construction. It was submitted and is plainly correct that the respondents are not charged with breaching the agreement, but with breaching the order referred to above. It is therefore unnecessary either to set the agreement out or explain the circumstances in which it was made. One point, however, is relevant for present purposes. The agreement was at least substantially contained in a letter dated 31 October 1988, which included the sentence: "The Executive Producer agrees to co-ordinate the content of these segments with the reports running in the Daily Sun". The segments referred to are, of course, treatments of the Finch tapes. The reference to co-ordinating the content of the segments with reports in "The Sun" seems plainly to refer to timing. Hinch said in evidence that he understood the effect of the agreement was such as to permit him to publish the whole of the Finch tapes immediately he obtained them. It is not a point of major import, but I should say that I do not believe Hinch thought that to be so.

9. On the same evening, 31 October 1988, material from the Finch tapes was used on the television show "Hinch at Seven" broadcast from Melbourne on HSV-7.

10. The circumstances outlined hereunder are not all directly relevant to the question whether the respondents so acted as to defeat the injunction, but bear upon the likelihood of the respondents having misunderstood the effect of the injunction.

11. On the following day, 1 November, there was a considerable amount of discussion between persons connected with "Hinch at Seven", and in particular the respondents, and also discussion between O'Brien and persons not so connected, on the subject of what could and could not be done under the agreement. There was a morning conference between Hinch and others at which it appears a decision was made to run material from the tapes ahead of "The Sun"; that is, it was contemplated that, instead of waiting for the relevant information to appear in "The Sun", which is published only in Brisbane, "Hinch at Seven" would "scoop" "The Sun". Although "Hinch at Seven" was at relevant times not broadcast in Brisbane, this caused concern, as being thought to be a breach of the agreement. The first person to raise that concern with O'Brien was one J.M. Miller, the executive producer of "Carroll at Seven", a program shown on Channel 7 in Brisbane. On the morning of 1 November, Miller told O'Brien that it would be a breach of the agreement to "run the McCulkin stuff" in the "Hinch at Seven" program that evening. The "McCulkin stuff" referred to allegations on the Finch tapes that one McCulkin was involved in the Whisky Au-Go-Go murders and that McCulkin's family had themselves been murdered, because Mrs McCulkin had said she was going to the police; other details were given. O'Brien told Miller, in answer to Miller's claim that to "run the McCulkin stuff" would be a breach of the agreement (which Miller had himself entered into):

"I'm sorry mate, but we're getting done by the

papers down here. We'll have to run it."

12. O'Brien claims that he reached an oral agreement, shortly after that, under which Watt authorised him to publish the McCulkin material. Watt denied that in his evidence and I accept the denial. However, that is not of great importance because, as mentioned above, the question is whether the order was breached, not whether any agreement was breached. The proposal to publish the McCulkin material ahead of "The Sun" came to the knowledge of one Quirk, the paper's editor-in-chief, who phoned O'Brien and protested. O'Brien told Quirk that a Melbourne newspaper was "running the story in word form before we can go to air" and that "we want to be first". Quirk asked for an undertaking not to publish the McCulkin story that evening, but was refused.

13. The applicant consulted its solicitors, who contacted O'Brien and told him it was proposed to approach the Federal Court in Brisbane for an injunction to restrain Channel 7 in Melbourne from publishing material from the tapes, apart from what had already been published in "The Sun". On O'Brien's inquiring whether it was the McCulkin segment which was referred to, the solicitor, one Stephen Russell, told O'Brien that the applicant objected to the publication of any material which had been provided to Channel 7, other than material already published by "The Sun". O'Brien said: "We haven't made up our minds about whether we will run the contentious aspect yet." Russell said that it was proposed to go to the Federal Court at 5.15 p.m. that afternoon.

14. Hinch was made aware of these events by O'Brien and, in particular, was told of the applicant's attitude. He contacted his solicitor and was told that, because of the lateness of the hour, there was no way an injunction could be granted prior to "Hinch at Seven" going to air. It seems to me likely that this advice was a factor in Hinch's deciding, as he did, to go ahead with the proposal to "scoop" "The Sun". As I have mentioned, Hinch claimed that he thought he was entitled to use any or all of the material ahead of "The Sun", but I do not believe that he thought so; his prime concern, in my opinion, was to get information he believed to be of interest to his viewers to air and to do so quickly, ahead of the grant of any threatened injunction. At 5.15 p.m. in Brisbane (6.15 p.m. Melbourne time) the applicant applied for an interim injunction and that was granted about 5.45 p.m.

15. At 5.47 p.m., Russell claims, he informed O'Brien by telephone precisely and in full of the whole terms of the injunction. O'Brien denies that and the conflict of evidence is further mentioned below. During the conversation between O'Brien and Russell, Hinch was standing by the phone and the general effect of O'Brien's evidence is that he informed Hinch of the substance of the injunction. I am not satisfied, however, of the accuracy of either respondent's account of the communications between them at that time. During the course of "Hinch at Seven", Hinch broadcast that the injunction had been granted, which makes it clear that he was informed about the matter, but the question remains whether he sufficiently understood its effect.

16. It does not appear to be necessary to show, in circumstances of this sort, that the person charged was aware of the full terms of the order; the cases speak of "knowledge of the order" or being "aware" of the order: see Attorney-General for New South Wales v. Mayas Pty Ltd (1988) 14 NSWLR 342 at pp 355, 356 per McHugh J.A. (as he then was) and Z Ltd v. A-Z (1982) 1 QB 558 at pp 572H, 586C. Apart from authority, the point may be illustrated as follows. If a person sitting in Court heard most, but not all, of the terms of an injunction pronounced by a judge and then promptly left to arrange matters so that what he knew to be the Court's intention would not take effect, it does not seem likely that his not having heard the full terms of the order would be a defence to a charge of contempt, whether or not he was a party to the proceedings.

17. In the event, at or very shortly after 7 p.m. "Hinch at Seven" went to air with a prepared script which gave an explanation of the lurid details of the "McCulkin angle" and the applicant says that was contempt on the part of both respondents. Both gave evidence and, as between the two of them, O'Brien appeared to me the more credible. To illustrate this point, I make further reference to Hinch's evidence about the term in the letter quoted above, concerning co-ordination. Hinch gave evidence to the effect that co-ordinating the content of the segments with reports in "The Sun" meant merely that Miller had to get the tapes from "The Sun" and send them to Hinch. In my opinion, Hinch was inclined to make statements of that sort, which he neither believed himself nor seriously expected to be believed. It was, I am sure, very plain to him that the co-ordination of content referred to did not contemplate only Miller's sending the the tapes to Hinch.

18. The full terms of the order of 1 November were as follows:-

"THE COURT ORDERS that:

1. The Respondents and each of them, by

themselves, their servants and agents, or

otherwise howsoever, be restrained until 3

p.m. on Wednesday 2 November 1988, from

publishing or from causing to be published,

whether by television or radio broadcast or

otherwise howsoever, any information,

document, audio visual tape recording or audio

tape recording or any other material, provided

by the Applicant to the First Respondent

pursuant to the agreement referred to in the

letter on the letter paper of the First

Respondent bearing date 31 October 1988,

relating to James Finch, apart from any such

information, document, audio visual tape

recording, audio tape recording or other

material already published by the Applicant in

its newspaper 'The Sun' circulating in Brisbane;

2. This Order may be served upon the Respondents

by the solicitors for the Applicant

telephoning the Respondents at their

respective places of business and reading the

terms of this Order to the person who

professes to be in charge of such premises, or

by facsimile transmission to the Respondents

at their respective places of business.

3. Liberty to apply."

19. I turn to consider the evidence on what turned out to be the central issue referred to above, namely whether the order covered, or was thought to cover, information from the tapes as well as the tapes themselves. At one stage in the proceedings, a question was raised whether the information broadcast from the tapes on "Hinch at Seven" also had other sources, but in the end Hinch conceded that at least some of the information broadcast came from the applicant's tapes. It should be added that there was no evidence, nor argument, that it was simply impossible or impracticable to comply with the order, although Russell phoned O'Brien only 13 minutes before the commencement of "Hinch at Seven". There had been a great deal of discussion during the course of 1 November about the claim by the applicant of a right to be first with the information, and preparations had been made to guard against the possibility that "Hinch at Seven" might be obliged to give the applicant priority with the information.

20. Russell said that he read the whole of the operative part of the order (para.1) to O'Brien, who admits that Russell began to do so. However, O'Brien claims that he interrupted Russell before para.1 was finished and asked him, in effect, whether the essence of the matter was this:

"Do we have to cut out the McCulkin material, is

that right?"

21. If, as O'Brien says, his understanding was that the order prevented the use of the McCulkin material and he passed that understanding on to Hinch, then, prima facie, there was a contempt; the material broadcast included "McCulkin material". Further, the part of the order which O'Brien admits having heard and noted included reference to "information", as well as to tapes, so that it is not easy to understand how the respondents could have, as they claimed to have done, thought that the order covered only the use of the tapes themselves. Hinch said that he overheard words to the effect that an injunction had been granted and heard O'Brien make the remark about McCulkin, referred to above. He then said that he gave instructions to staff to "go with the story with Finch talking about McCulkin out . . ." The distinction drawn was between showing a video of Finch discussing the McCulkin matter, on the one hand, and having statements made by Hinch about the information Finch had provided, on the other. Hinch admitted that it was made clear that the "Finch/McCulkin angle was to go" and that the injunction said so, but claims that he always thought the "angle" was no more and no less than Finch talking about the matter. Somewhat inconsistently with that, however, Hinch gave evidence that "it was then and remains my belief" that the broadcast did not contravene the order; he was unable to explain satisfactorily how that could be, when he knew that information he broadcast came from the tapes.

22. O'Brien, on the other hand, was more inclined to be candid on this aspect of the case. He did not discriminate between "the McCulkin angle" and "the McCulkin material" and said they would be "basically . . . the same", being a reference to the information about the McCulkins. O'Brien also admitted that he appreciated that "The Sun" had obtained an order "to prevent them from being scooped on that information". He agreed that he had been told the applicant was to seek "an injunction to restrain and put you off running the Finch material, other than what 'The Sun' has run" and said that he was sure he would have passed that on faithfully to Hinch.

23. The statement of charge of contempt against O'Brien alleges, in effect, that acting as producer he aided and abetted a breach of the injunction in that the following words were spoken in the course of the broadcast:

"(a) The killing did not stop with the fifteen

people burned to death in the Whiskey Au Go Go

inferno. According to our sources, the wife

of one of the Whiskey Au Go Go bombers was

raped and, according to Finch, she and her two

daughters were axed to death because they knew

too much. In this amazing confession, James

Finch identified his two accomplices: Thomas

Hamilton, the boxing champion - he was

murdered two years after the fire bombing -

and Bill McCulkin, the man who drove the

escape car. But Finch adds to the list of

fifteen killed. He claims the wife of Bill

McCulkin, Barbara McCulkin, and his two little

girls, Barbara and Vicki. They were murdered,

raped, tortured. Murdered with an axe because

Mrs. McCulkin had said she would go to the

police. She was murdered, according to Finch,

to stop her. She was murdered because she

knew too much.

(b) Apparently, less than 45 minutes ago, the

Brisbane Sun sought, and was granted, a Court

Injunction against Hinch at Seven. They do

things differently in Queensland.

(c) James Finch has now revealed he was one of

three men who physically carried out the fire

bombing of the nightclub in Brisbane's

Fortitude Valley. He named his two

accomplices, Thomas Hamilton, a boxing

champion who was murdered two years after the

fire bombing. Hamilton, according to Finch,

lit the match igniting the petrol. Bill

McCulkin was the driver of the get away car, a

man who was believed to be out on parole,

possibly living in Melbourne.

(d) Finch has named a former high ranking

Queensland policeman as the man behind the

Whiskey Au Go Go bombing."

24. The charge against Hinch alleged, in effect, as to paras.(a) and (b) set out above that Hinch uttered the words, and as to (c) and (d) that he procured or aided and abetted the inclusion of the words in the program.

25. As conducted, the applicant's case concentrated on para.(a), although the rest was by no means abandoned, and in particular (b) was pressed. Paragraphs (c) and (d) are, however, entirely subsidiary to (a) and I have not found it necessary to give them any separate consideration, nor make findings with respect to them since, in the view I take, the ultimate outcome would not be affected by consideration of paras.(c) and (d).

26. It is necessary to make some comment about the standard of proof. If these proceedings are essentially criminal in nature, one would expect the standard to be proof beyond reasonable doubt. In The King v. Metal Trades Employers' Association [1951] HCA 3; (1951) 82 CLR 208 at p 253, Dixon J. described the distinction between civil and criminal contempts as "well recognised", but went on:

". . . when orders restraining or commanding the doing

of specific things are defied or disobeyed the

remedy by contempt may have a double aspect".

Then in Australian Meat Industry Employees' Union v. Mudginberri Station Proprietry Limited [1986] HCA 46; (1986) 161 CLR 98 at pp 108, 109, Gibbs C.J., Mason J. (as he then was), Wilson and Deane JJ. referred to the difficulty which had been experienced in maintaining the distinction between the two types of contempt and described as "absurd" the proposition -

". . . that the defendant who disobeys an injunction

granted against him commits a civil contempt

whereas the stranger who aids and abets him is

guilty of criminal contempt . . ."

After further discussion of the distinction, their Honours went on:

"There is, accordingly, much to be said for the view

that all contempts should be punished as if they

are quasi-criminal in character, notwithstanding

the adoption of the contrary view by some members

of this Court in the decisions to which we have

already referred."

27. If the matter were left there, it would seem to me that single judges, at least, should treat contempt in the way indicated.

28. In Hinch v. The Attorney-General for the State of Victoria [1987] HCA 56; (1987) 164 CLR 15, Deane J., who was one of the judges responsible for the passage just cited, criticised the distinction between civil and criminal contempts and said it should no longer be accepted in this country. Referring to the punishments of imprisonment and fine, his Honour added:

"Proceedings seeking the imposition of such

punishment upon an alleged contemnor (or an order

for sequestration in the case of a company) must

realistically be seen as essentially criminal in

nature . . ." (at p 49).

29. In my opinion, the proper course is to accept the view just expressed and proceed on the basis that there must be proof beyond reasonable doubt. The adoption of this view of the law makes no difference to the result of the case against Hinch, but is of some assistance to O'Brien, whose case has occasioned me some difficulty.

30. In my opinion, both respondents well knew, even before the injunction was granted, that the applicant objected to the publication of information from the tapes, not merely to publication of the tapes themselves. It would have been rather absurd, from a commercial point of view, for the applicant to attempt to restrain the showing of the tapes on television, but not the publication of the news contained on the tapes; the applicant is not in the television business, but runs a newspaper. So far from the respondents being under a misapprehension on that point, they never had any doubt that it was the information, and in particular the "McCulkin material", which was in contention. Any revelation of the information on the tape, insofar as not previously disclosed, would have achieved the result which, as Hinch and O'Brien knew, the applicant was seeking to avoid, namely making its "news" old news rather than something fresh.

31. The central point is whether the respondents were aware of the injunction, but the point just discussed has a secondary importance, namely that the Court should take a different view of the conduct complained of if it was not shown to be anything other than mistaken or accidental. I am satisfied that both respondents appreciated the effect of the injunction, and in particular that it was not confined to the use of the tapes themselves.

32. To return to the question of transmission of the full terms of the injunction, Russell was not prepared to deny that he might have been interrupted by O'Brien during the course of his reading. Further, there is the simple fact that what appears to be an authentic note taken by O'Brien at the time, does not include, even in summary, the whole of the terms of the injunction. Translating the abbreviations as best I can, it seems to say:

"Respondents and each of them by themselves servants

or agents be restrained until 3 p.m. Wednesday

November 2 1988 from publishing by television or

radio any any (sic) information document audio

visual or audio or any other material to . . ."

The note stops at the point where the writer has recorded, although roughly, that part of the order which describes the nature of the material caught, but it leaves out the source of the material and leaves out the exception, namely material already published by the applicant in "The Sun". It seems likely that these two matters - the source of the material and the exception - would not have needed to be recorded, since no doubt O'Brien well understood them. He said, in effect, that he stopped Russell reading the rest out because of shortage of time. But it could have taken no more than half a minute to read the rest of it. Further, O'Brien had time to ask Russell for and to note three telephone numbers, apparently obtained in case he needed further information.

33. I had the impression that each of Russell and O'Brien honestly believed his recollection to be accurate in this respect, but I prefer Russell's account. I am satisfied that, despite the urgency of the matter, Russell read out the whole of the terms of the injunction. It is my opinion that O'Brien ceased taking notes because he understood the substance of the Court's order and its practical effect on the content of "Hinch at Seven". In arriving at my view on this point, I have taken into account that Russell's version has some support in other evidence called on the same side of the record.

34. I shall first consider O'Brien's position, which is significantly different from that of Hinch.

35. O'Brien was the producer of "Hinch at Seven"; Hinch was the executive producer. O'Brien gave evidence, and was not challenged on this, that Hinch had the final say as to what went on the program. I think that in a practical sense there was very little O'Brien could have done if Hinch was bent, as I think he was, on going ahead with the show which had been prepared, in unexpurgated form. The case seems to have been argued on the assumption that if anyone was guilty of contempt both were, but I have had some difficulty in reaching a conclusion as to O'Brien. There is no evidence that he did anything positive to cause the injunction to be breached. In particular, I am sure that he did not mislead Hinch as to the substance of the injunction which was granted, or suggest to Hinch that it covered only the use of the tapes themselves and not information derived from the tapes. On the other hand, O'Brien could no doubt have emphasised the scope of the injunction to Hinch and suggested to him that he take steps to comply with it. My impression is that he had no desire then, nor in the course of giving evidence here, to act in a way contrary to what he understood to be Hinch's interests and intentions. It is also, I think, clear that O'Brien equivocated in giving his evidence on the critical aspect of the matter, namely whether he was under the impression that the only point in question was the use of the tapes themselves. However, having regard to the standard of proof, I do not propose to make a finding of contempt against O'Brien, but will not, in the circumstances, award any costs in his favour.

36. I am quite satisfied that Hinch, on the other hand, appreciated that to use the "McCulkin angle" was a breach of the injunction and decided not to exclude the material obtained from the tapes because he thought it to be very newsworthy, and that as to para.(a) he was guilty of contempt. Paragraph (a) constitutes, for the reasons I have explained, the core of the case against Hinch; (c) and (d) add nothing of consequence, but (b) requires separate consideration.

37. The essence of the charge in (b) is that it was suggested that the Court had acted in some improper or unorthodox way, in doing "things differently in Queensland".

38. Considering an application for contempt in circumstances of this sort, where what is complained of is a slight upon the Court's conduct or dignity, is an invidious task. A finding of contempt may create an impression that the judge criticised is hyper-sensitive. There is perhaps a reflection of this problem in Morris v. Crown Office (1970) 2 QB 114 where people who conducted a demonstration in the High Court, described as "disgraceful and outrageous" (p 128) were sent to prison for three months, but the Court of Appeal released them after a week.

39. It is difficult to accede to any suggestion that courts in this country are excessively prone to suppress discourtesy and contemptuous criticism. The taking of steps by judges to protect their positions by use of the law of contempt appears to be extremely rare. With all respect to those who hold a contrary view, the law of contempt, as presently formulated, has a useful place in preserving decorum in court and preventing the erosion of courts' authority by contemptuous conduct out of court. In the present case, however, I am quite unable to be satisfied to the requisite standard that what Hinch implied about the peculiarities of Queensland behaviour constituted a contempt. It was not a particularly respectful remark, but not an unlawful one.

40. It remains to be considered what penalty should be imposed. One unfortunate aspect of this sort of proceeding is that the party which has the benefit of the Court's order and asserts that the other has breached it may be able to exploit that position in negotiation for settlement of the principal proceeding or in other ways. It may therefore be undesirable, in general, to imprison such a contemnor, at least where the conduct complained of is at an end. I am satisfied that imprisonment would be inappropriate here. There are mitigating circumstances. The chief is that the order was granted only a short time before the show went to air. Although Hinch could, without any great difficulty, have deleted the material obtained from the Finch tapes, his culpability is much less than it would have been had there been time, after notice of the injunction, for reflection and perhaps the taking of advice. I would, in these circumstances, fine Hinch, were it not for the fact that he will be subject to another substantial penalty, namely one for costs. The case was one which involved a number of interlocutory steps. Silk were engaged on both sides and although affidavits were filed, the hearing extended over four days. The costs will be quite substantial, considerably more in amount than any fine which might be thought appropriate to the circumstances.

41. I should add that in my opinion it was reasonable on the part of the applicants to join both Hinch and O'Brien and for that reason Hinch should pay all the applicant's costs.

42. In the result, there will be a finding that Hinch committed contempt of this Court in uttering the words set out in para.1(a) of the statement of the charge against him, and there will be an order that he pay all the applicant's costs of and incidental to these contempt proceedings, to be taxed.

Re Sun Newspapers Pty Ltd v Brisbane TV Limited; HSV Channel Seven Pty Ltd and HSV Channel 7 [1989] FCA 534 (20 December 1989)

Re Sun Newspapers Pty Ltd v Brisbane TV Limited; HSV Channel Seven Pty Ltd and HSV Channel 7 [1989] FCA 534

At a glance

Court

Decision date

Before

Source

Judgment (54 paragraphs)

Parties

Cases Cited (5)

Re Sun Newspapers Pty Ltd v Brisbane TV Limited; HSV Channel Seven Pty Ltd and HSV Channel 7 [1989] FCA 534 (20 December 1989)