Registrar of the Supreme Court (NT) v Nationwide News Pty Ltd & Anor [2018] NTSC 22

Registrar of the Supreme Court (NT) v Nationwide News Pty Ltd & Anor [2018] NTSC 22 | Case summary | Zoe

[18]

[4] The primary facts are not in dispute, although, as is discussed further below, there is some dispute as to the inferences that may properly be drawn from the primary facts. No objection was made to the reading of the affidavits by which those primary facts were proved.[1]

[5] The matter of The Queen v Shane Liam Hitchcock was listed before this Court for sentence on 9 March 2017. On that day the Registrar received an application for access to CCTV footage that had been played in evidence during the course of the sentencing proceedings. That application was made by Nine News. The Registrar referred the application to the presiding judge's Associate.

[6] The presiding judge authorised access by Nine News to the CCTV footage subject to written conditions attached to the authorisation.

[7] On the afternoon of 9 March 2017, the second respondent made an application for access to the same CCTV footage and to a photograph of the victim taken following the assault in question. That subsequent application was received by the Sheriff of the Supreme Court. The Sheriff was aware of the application previously been made by Nine News, and of the conditions which had been imposed on the grant of that application.

[8] On receipt of the application by the second respondent the Sheriff took it to the presiding judge's Associate. The presiding judge also authorised access by the NT News to the CCTV footage subject to written conditions attached to the authorisation. The application for access to the photograph of the victim was refused.

[9] At approximately 4.50 p.m. on the afternoon of 9 March 2017 the Sheriff advised the second respondent that the presiding judge had authorised access to the CCTV footage on conditions, and that the application for access to the photograph of the victim had been refused.

[10] The Sheriff showed the second respondent the document setting out the conditions on which access to the CCTV footage had been granted. The second respondent said to the Sherriff words the effect that he had not previously seen conditions imposed on the release of an exhibit. The Sheriff requested the second respondent to sign the document acknowledging the conditions on which the CCTV footage was to be released. The second respondent read the document and signed it. The second respondent did not ask for any interpretation or clarification of the contents of the document. The second respondent's endorsement on the document was witnessed by the Sheriff.

[11] That document provided in its entirety:

[22]

[12] The Sheriff then took a photocopy of the signed document, gave the copy to the second respondent and placed the original onto the court file. A registry officer gave the second respondent a USB storage device containing a copy of the CCTV footage at 4.57 p.m. on 9 March 2017.

[13] On 10 March 2017 the Registrar was advised that the NT News had published the CCTV footage on its website. The Registrar and the Sheriff went to the NT News website. The public access content of the NT News website displayed a still image from the CCTV footage and part of a story concerning the sentencing proceedings from the previous day. Access to the full story and the CCTV footage was restricted by a paywall. That footage was apparently available to view within the subscriber-only content of the NT News website.

[14] The Registrar then logged onto the NT News subscriber webpage and saw that the CCTV footage was accessible in the context of a story under the byline of the second respondent. That story was titled 'Coward Punch' attack in Darwin CBD lands 'cleanskin' in gaol for nine months. The CCTV footage was able to be played on the subscriber webpage. It comprised a 45 second clip which depicted the offender approaching a group of four people and striking the victim without warning, the victim falling to the ground and lying motionless, and the offender walking quickly away from the scene of the attack. The caption at the bottom of the footage read, "CCTV footage shows Shane Liam Hitchcock punching Rhys White on the corner of Knuckey and Smith Streets on December 3, 2016. Vision. NT Police."

[15] In addition to posting the CCTV footage on the subscriber-only website, on 10 March 2017 the print edition of the NT News published still images from the CCTV footage in a manner consistent with the first condition. However, the main still image reproduced in the print edition of the newspaper was endorsed with the words "Video online ntnews.com.au". That was obviously a reference to the posting of the CCTV footage on the NT News website.

[16] The Registrar sent an email to the second respondent at 4.41 p.m. on 10 March 2017 requesting that the CCTV footage be removed immediately, and seeking reasons why she should not commence proceedings for contempt. The Registrar made further access to the subscriber-only content of the NT News website at approximately 5.30 p.m. on 10 March 2017 and confirmed that the CCTV footage had been taken down.

[17] It is common ground that the CCTV footage was posted on the NT News website at or about midnight on 9 March 2017 and that it was taken down at or about 5 p.m. on 10 March 2017.

[18] The Registrar received an email from the National Editorial Counsel of News Corp Australia at approximately 10 p.m. on 14 March 2017 attaching a response to the email sent to the second respondent on 10 March 2017. Omitting formal parts, that response provided:

[25]

The CCTV footage was published online after Mr Hitchcock had been sentenced at a time when the sub judice period in relation to his charges had concluded. There was no risk to Mr Hitchcock's right to a fair trial incurred by communication of the CCTV footage.
The CCTV footage in question was tendered and played in open court and consequently comprises part of a fair and accurate report of the proceedings.
While the CCTV footage in question was supplied to the NT News by the Court my client was aware that the same footage was in the possession of at least one other source other than the Court.
NT News did not communicate the footage merely for the prurient interest of online readers. The assault in question concerned what has come to be described as a "coward punch", namely a blow for which the victim is an entirely unprepared. My client submits that the CCTV footage allows the public to understand why the Supreme Court takes these types of offences so seriously and how the sentencing of Mr Hitchcock in this case - a man with no prior criminal record - is entirely appropriate in the circumstances.
As noted by Her Honour in sentencing Mr Hitchcock, coward punch assaults have become unfortunately common. Her Honour stated, inter alia, that Mr Hitchcock could not be ignorant of the injuries that single-punch attacks can cause given the attention such assaults have received in the media.
In the last six months the NT News has published a number of reports about similar incidents including:
- "Sentence Sparks outcry", 18/1/2017: a female police officer was allegedly coward punched while attending a domestic disturbance on or about 17 January 2017 by a 27-year-old man who had previously punched a male police officer;
- "Man stabbed in arm at Darwin 'escort' lounge", 20/12/2016: on or about 18 December 2016, two men in the [sic] thirties were charged following an alleged coward punch attack outside Smith Street McDonalds in which a 39-year-old man was knocked to the ground unconscious;
- "No bail for bash accused", 30/11/2016: in November 2016, a man attempting to break up a fight in Stuart Park was allegedly coward punched so severely that he required emergency surgery to correct bleeding on the brain; and
- "Copping it not sweet", 30/10/2016: Constable Nick Carter was left with cuts and a black eye after allegedly being coward punched while attempting to make an arrest outside Monsoons nightclub. The force of the blow was such that the officer cannot recollect it or the seconds after the attack.

[32]

[21] The requirement that proceedings be held in open court does not oblige the court to provide access to exhibits and court records. A proceeding is properly conducted in open court if the public has a right of admission to that court which is reasonably and conveniently exercisable. An open court does not necessarily become "closed" because there is no right to access exhibits or court records, or because a request by a member of the public or media for access to exhibits or court records is refused.[4]

[22] On the modern approach, however, different considerations may have application to materials which are pre-read by judges and relied upon in the determination of cases coming before them, without those materials ever being presented or heard in open court.[5] In such circumstances the principle of open justice gives rise to a presumption that access will be allowed unless there is good reason for refusing the request or placing conditions on the release of an exhibit.[6] The modern approach also assumes that where a document has been tendered in open court inspection and access will ordinarily be permitted.[7]

[23] Access by members of the public and media to exhibits and court records are ordinarily subject to practice directions or guidelines stipulating the process or mechanism by which applications are to be made and determined. Those guidelines typically deal with such things as the manner in which an application for access to material may be made by a member of the public or media; the considerations which the court will take into account in determining whether or not access will be given; the process by which the application will be referred to the appropriate judicial officer; whether copies will be made available; and whether the court is required to give reasons for a refusal. Those guidelines may sometimes include a process whereby an aggrieved person who has been denied access to court records can be heard on the matter.[8]

[24] Supreme Court Practice Direction No 2 of 2010 draws a distinction between exhibits, which do not form part of the records of the court, and other material which may form part of the court's files. It provides relevantly:

[44]

[25] In the ordinary course, access to exhibits may only be granted by the presiding judge. The reason for that is clear enough. The presiding judge has control over the conduct of the proceedings, and will have read or otherwise viewed the exhibits adduced during the proceedings and be familiar with the forensic and public interest considerations involved. In dealing with a request for access those considerations will bear upon the question whether access and copying should be allowed, and whether conditions should be placed on the publication and use of any material which may be released.

[26] The practice adopted in this Court is that a non-party may apply to the presiding judge for an order permitting the copying or publication of exhibits. Media organisations do not assert, and are not accorded, any interest above and beyond that of the general public in relation to access to exhibits and court records. However, the role of the media is important to the principle of open justice. As the courts have previously observed, not every member of the public can attend court proceedings and a fair and accurate report forms an important part of the implementation of open justice. For that reason, the media should not be discouraged from the fair and accurate reporting of proceedings.[9]

[27] The importance of that role notwithstanding, the function of the media may give rise to particular considerations as to how any material released might be published or otherwise deployed, and the restrictions which might be properly placed upon the grant of an application for access and copying. This is not to suggest that the courts do not or should not proceed on the assumption that the media will produce a fair and accurate report using the material to which access is granted.[10] It is only to say that public interest considerations will sometimes militate against release at all, and sometimes against unconditional release. As is apparent from the text of Supreme Court Practice Direction No 2 of 2010, those considerations will necessarily include such matters as:

(a) whether there is any statutory provision or prior order which imposes restrictions on release or publication;

(b) whether the release might give rise to a possible offence to public decency;

(c) the nature of the proposed or potential publication by the applicant or another person;

(d) the nature of the document;

(e) the content of the document and whether it contains information that is private, confidential or personally or commercially sensitive;

(f) depending on the nature of the proceedings and the stage which they have reached, whether the copying for publication might have the potential to prejudice the fair trial of an accused person;

(g) the likely effect of the copying for publication on victims, the family members of a victim, the family members of an accused person, a person referred to in the document, or a person whose interests may be affected by the release of the document; and

(h) whether the document was produced in open proceedings.

[28] In the present circumstances, for example, particular regard would have been paid to the affect an unconditional release might have on the victim of the assault depicted in the footage, and the victim's family. It is understandable why, in that context, the presiding judge placed a preclusion on the publication of the CCTV footage on the internet, lest the victim and his family be tormented by its presence in that medium for some open-ended period. Particular care needs to be taken in determining requests for access to video footage. As Refshauge J observed in R v Jovanovic:

[47]

[31] The court has received no direct evidence as to the circumstances in which the CCTV footage came to be posted on the NT News website. It is not apparent whether the decision was made deliberately and in full knowledge of the conditions on which it was released and the second respondent's acceptance of those conditions, or whether there was some error or oversight. During the interlocutory stages of these proceedings counsel for the respondents indicated they would not be adducing evidence in relation to those issues.[13] An implication which might possibly be drawn from the adoption of that position is that there was, in fact, no error, oversight or miscommunication and a deliberate decision was made to flout the condition imposed.

[32] That would appear to be consistent with the letter from the National Editorial Counsel dated 14 March 2017. As has been extracted above, that correspondence states, "I am advised that the decision to publish the footage was made in consideration of the following factors". The letter then goes on to list those factors, including consideration of the sub judice principle, the fact that the footage was played in open court, and the assertion that the publication was in the public interest. On one reading, the correspondence would suggest the first respondent arrogated to itself the assessment and determination of the public interest in full knowledge of the fact that the presiding judge had directed that the CCTV footage not be published on the internet. The letter also makes no reference to the interests of the victim and his family in that equation, which was clearly the primary consideration underlying the presiding judge's direction in that respect.

[33] A more benign, if strained, reading might be that the reference to "the decision to publish the footage" does not suggest an awareness on the part of the person who made that decision of the conditions which had been imposed by the court. On that reading, the purpose of the letter is to draw attention to the fact that the CCTV footage was removed immediately upon request by the court; that the publication was for worthy rather than prurient motives; and that the first respondent takes its legal obligations seriously and trains its staff accordingly. That reading receives some contextual support from the fact that the CCTV footage was posted on the website at or about midnight on 9 March 2017, quite possibly by a person with no knowledge of the conditions imposed by the presiding judge. The fact that the website posting attributed the "Vision" to the "NT Police" might also suggest some misunderstanding as to the source of its release.

[34] The letter also fails to acknowledge the principle identified earlier in these reasons, which is that there is no right of access to exhibits, it is a matter for the court to determine whether access is granted and on what terms, and in making that determination the court must balance the principle of open justice with matters militating against the release of the material. If, in making that determination, the court imposes conditions on the manner in which the material may be published or otherwise used, it is not properly open to a media organisation taking the benefit of the grant of access to supplant the court's determination in that respect with its own view of what the public interest does or does not require.

[35] This observation does not misunderstand that it is ordinarily for a media organisation to determine whether or not particular material should be published and, if so, how it should be published. However, that discretion does not extend to the situation in which a court has determined in the regulation of its own proceedings to accede to a request for the release of an exhibit subject to conditions, and those conditions place express limitations on the manner of publication. There can be no doubt that the publication in breach of the condition imposed - whether deliberate or not - was improper in the circumstances, and in breach of the compact which necessarily exists between the courts and the media in the implementation of the principle of open justice. However, the matter for determination in these proceedings is whether the conduct constituted a contempt of court.

[48]

[36] The contempt alleged in the present case does not fall within the well-defined categories of liability. That said, the reach of the law of contempt is incapable of precise definition and classification, but always "capable of adaptation and expansion to meet fresh needs".[14] If this conduct constituted contempt, it must be on the basis that it interfered with the administration of justice by the courts in a manner traditionally categorised as "criminal contempt".[15] This conduct does not fit comfortably within that category traditionally described as "civil contempt". It does not concern the enforcement of court orders[16] and, to the extent that the second respondent's acceptance of the conditions might be said to have constituted an undertaking, it was not an undertaking given in favour of a party to proceedings of the sort with which civil contempt is ordinarily concerned.

[37] Turning then to the reasonably well-defined categories of "criminal contempt", this was not a contempt in the face of the court; it was not a contempt by publication which interfered with existing proceedings[17] or which undermined public confidence in the administration of justice[18]; and it was not one of those miscellaneous interferences directed to preventing official participants in court proceedings from due performance of their duties, or involving the conduct of investigative proceedings which jeopardise the operation of concurrent court proceedings.

[38] While disobedience of an order or undertaking may also constitute a criminal contempt, it was previously considered that something more than a bare breach was required to attract that characterisation. The conduct had to constitute the rejection by disobedience of an important social demand so as to constitute a public wrong, or amount to a deliberate and contumacious disobedience of the court's orders.[19] Where the disobedience is said to be constituted by the breach of an undertaking, an express undertaking to the court will ordinarily be required. This is because an undertaking given in that context will have the same legal effect as an injunction and may be enforced in contempt proceedings.[20]

[39] In the present case there was no express undertaking given to the court in the ordinary sense, and the question of enforcement turns on whether the second respondent's acceptance of the conditions of access fixed by the presiding judge may properly be characterised as an "implied undertaking" in the relevant sense. As the law presently stands, the better view is that it may not. The application of the law of contempt to implied undertakings is limited to the implication that parties to proceedings, and their legal advisers, servants and agents, will not use documents produced under compulsion in the course of those proceedings, or generated for the purpose of those proceedings, for any collateral or ulterior purpose. This is because an implied undertaking of this sort imposes a substantive legal obligation in the same manner as an order.[21] The second respondent's acceptance of the conditions of access to the CCTV footage in this case did not impose a substantive legal obligation of that type.

[40] Having regard to those principles, counsel for the applicant properly concedes that there is no decided case which deals with an allegation of contempt in these particular circumstances. On the assertion that the respondents' conduct in posting the CCTV footage on the NT News website constituted a breach of the conditions on which access was granted (which matter is discussed further below), the applicant contends that conduct amounted to a contempt of court because it "impedes the administration of justice" in the manner described by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd.[22] This is no more than a statement of the basal principle that conduct constituting an interference with the administration of justice by the courts is punishable as a contempt.

[41] The impediment in this case is said to arise from the fact that "if the court could not expect and enforce compliance with conditions such as those imposed in this case, it could not grant access to the media to material considered to be in the public interest. That would be contrary to the administration of justice and the public interest because the public would have reduced access to material that assists its understanding of the Court's work." That proposition is the first question for determination.

[59]

[52] It should be noted at the outset that the respondents have not sought to lead any evidence that they bona fide believed themselves bound only by a construction which permitted the publication of the CCTV footage on the NT News website.

[53] The respondents must fairly be expected, on an objective appraisal at least, to have understood that the CCTV footage was not to be published on the internet. The second condition is in those terms. It should not be accepted that the respondents' understanding of that condition was reasonably confounded by the reference to "further broadcast or dissemination" in the third condition. While the term "broadcast" might be anomalous to the use for print media permitted by the first condition, the composite phrase "broadcast or dissemination" is reasonably understood to operate as a catch-all for both television and print news media organisations. The third condition is plainly enough a limitation on dissemination beyond the use permitted by the first condition, which was the use for print media on 10 March 2017 only. Moreover, the first respondent's action in immediately removing the CCTV footage from its website in response to the Registrar's email on the afternoon of 10 March 2017 suggests that at that point, at least, there was no misunderstanding on its part concerning the operation of the second condition.

[54] Any suggestion that the first respondent's understanding of the conditions upon which access had been granted was reasonably confounded by the broadcast of the CCTV footage on Nine News between 6 p.m. and 7 p.m. on the evening of 9 March 2017 should also be rejected. That Nine News should be permitted to broadcast the CCTV footage on the day of the sentencing proceedings could not be said to have reasonably led the first respondent into some misunderstanding of the conditions on which it had been granted access. That the first respondent might have harboured some concern that it was operating under a competitive disadvantage is quite a different matter. It should also be noted in this respect that there is a significant difference between the one-off broadcast of the CCTV footage on a television news service and the posting of the CCTV footage on the internet for an open-ended period.

[55] The respondents assert further that posting the CCTV footage on the subscriber-only domain of the NT News website was not in breach of the second condition. The term "published" in this context reasonably denoted issuing content to the public or any section of the public,[38] and particularly NT News readers, so that it could be read or viewed. Taken to its logical and absurd conclusion, the respondents' argument in this respect is that material placed on the subscriber-only domain of the NT News website is not "published".

[56] Those findings go only to the question whether the conditions were cast in clear and unambiguous terms, and whether there was a breach of those terms. They do not address the fault element. The applicant contends that in order to found liability for the contempt it is unnecessary to prove anything more than knowledge of the conditions of access. It relies in that contention on the decision of the Queensland Court of Appeal in Lade & Co Pty Ltd v Black.[39] That case involved an allegation of contempt arising from the breach of an express undertaking. In considering the counterpart Queensland rules governing applications for the punishment of contempt, Keane JA observed:

[64]

[57] Keane JA was not there suggesting knowledge is the only mental element in the prosecution of a criminal contempt of the type alleged in this case. In saying that it was unnecessary to establish that the breach was worse than "casual, accidental or unintentional", his Honour was speaking specifically of contempt by breach of an order or undertaking in civil proceedings, and adverting to the traditional distinction between civil and criminal contempt.

[58] Under that distinction, a civil contempt constituted by the breach of an order or undertaking was only capable of characterisation as a criminal contempt if the breach was wilful or contumacious. That characterisation was significant, because it was determinative of whether the court could make a punitive order or was limited to a coercive order directed to the vindication of the rights of the other party to the litigation. The point of his Honour's observations in this respect was that the statutory procedure permitted the imposition of a fine even where the contempt in question might traditionally have been categorised as "civil" in nature, and even in the absence of a wilful or contumacious element previously considered necessary to enliven the power of a court to impose punitive orders.

[59] The reference to "casual, accidental or unintentional" was to examine the remedies available for the punishment of "civil" contempt under the statutory procedure, rather than to lay down a general test for determining whether the commission of a criminal contempt has been established. It may be accepted that "casual, accidental or unintentional" breaches may suffice in the establishment of "civil" contempt by the breach of an order or undertaking, and that the only mental element is that the party intended to perform the act or omission which constituted the disobedience. For the reasons already given, however, the contempt alleged in this case is "criminal" in nature, in the sense that it involves an interference with the processes of the court rather than a breach of an order or undertaking.

[60] Although the procedure by which application is made for the punishment of a contempt is now set out in the Supreme Court Rules, contempt of court remains the only common law crime in this jurisdiction.[41] The punitive implications of criminal contempt are such that a committal generally will not lie as a matter of strict liability.[42] For that reason, the better view is that liability will ordinarily carry with it a mental element.[43] In the circumstances of this case, to establish what might be described as the actus reus, the prosecutor must prove beyond reasonable doubt that the accused published the CCTV footage on the internet. That is admitted. In order to establish what might be described as mens rea,[44] the prosecutor must prove beyond reasonable doubt that the accused was aware of the obligations imposed by the conditions, and performed the act of publishing the CCTV footage on the internet knowing that to do so would be in breach of those conditions (or, at the very least, made no reasonable attempt to prevent such a breach).[45] It is unnecessary to prove an intention to undermine the administration of justice.[46]

[61] It may first be noticed in that respect that there is no direct evidence and no inference available that the second respondent was involved in the publication of the CCTV footage on the NT News website. Although counsel for the applicant did not formally concede that matter during the course of the hearing, the issue was not pressed. On the state of the evidence, it is simply not possible to make any finding of contempt against the second respondent.

[62] So far as the first respondent is concerned, the state of the evidence is such that it cannot be said which of its servants or agents was responsible for the publication of the CCTV footage on the NT News website; whether that servant or agent was aware of the existence of the conditions; whether the first respondent through its management personnel was instrumental in or aware of the publication; or whether the first respondent through its management personnel was in fact aware of the existence of the conditions. It is conceivable that the second respondent neglected to apprise the relevant actors of the imposition of the conditions. For the reasons that have already been addressed, it is not possible to be satisfied to the requisite standard by the letter from the National Editorial Counsel that a deliberate decision was made to publish the material on the NT News website in full knowledge of the conditions.

[63] That then gives rise to the question whether the first respondent's decision not to call evidence in relation to these matters may give rise to adverse inferences in those respects. That matter was considered by the High Court in RPS v The Queen.[47] The plurality observed (footnotes omitted):

[73]

[65] It was with reference to these authorities that the Full Court of the Federal Court in Jones v Australian Competition and Consumer Commission[51] drew the conclusion that those same principles had application to a charge of contempt.

[66] Although the first respondent's decision not to lead evidence in these respects might be characterised as tactical in nature, no conclusive and determinative inference may properly be drawn in the circumstances of this case. Such inferences would need to be drawn from the fact that the first respondent has not called evidence to establish that the second respondent did not advise it of the conditions, or that the servant or agent responsible for the publication of the footage was acting outside the course of his or her authority, or that its management personnel were unaware of the publication and/or the conditions. I do not consider that those failures lead necessarily to the conclusion that any hypotheses consistent with innocence thereby cease to be rational or reasonable. The reasons for that are plain enough. The situation presenting here may be contrasted with circumstances in which the accused is a natural person seen by witnesses to engage in conduct for which only that accused is able to give an account consistent with innocence.[52] The result would be the same even if the requisite mental element was knowledge alone.

[67] Even if the court could be satisfied that there was the relevant mens rea on the part of the first respondent's servant or agent who posted the CCTV footage on the internet, it would then fall to determine whether the first respondent may be held liable for that breach of condition. There is no statutory provision which imposes vicarious liability for contempt on the first respondent for the mental state or conduct of its employees.

[68] The first means by which liability might be found is if the conduct of the first respondent's servants or agents may be attributed to it in accordance with the common law principle of personal corporate responsibility. As the Queensland Court of Appeal observed in Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch)[53], also in the context of the statutory procedure for contempt:

[76]

[69] In this case there is no evidence concerning the means by which or by whom the CCTV footage was published on the website. So, even if the requisite mental element could be established on the part of that person, there is no evidentiary basis on which to attribute criminal liability for that conduct to the first respondent on the basis discussed in Evenco. That would require some determination to be made concerning that person's place in the organisation, the ordinary scope of their authority, and the question of actual authorisation. Although certain inferences may be drawn, they are not of sufficient strength to establish those matters beyond reasonable doubt.

[70] Counsel for the applicant submits that the other means by which liability attaches to the first respondent is by the attribution to it of the second respondent's knowledge of the conditions imposed by the presiding judge on access to the CCTV footage. The applicant says that the second respondent's knowledge in that respect may be attributed not only to the first respondent, but also to those "involved in the publication". Reference is made to Hamilton v Whitehead[55] in support of that proposition. The Court there held that a corporation bore direct rather than vicarious criminal liability for breaches perpetrated by an officer characterised as "the mind of the company". This is the same principle discussed in Evenco. Even if the second respondent could be characterised as "the mind of the company", that principle cannot operate to attribute the second respondent's knowledge of the conditions to the servant or agent who made the publication.

[71] The circumstances in which the CCTV footage was published on the NT News website are inscrutable on the evidence adduced. It is not possible to conclude to the requisite standard that the person who did so had knowledge of the conditions. It is not possible to conclude that the first respondent directed or authorised the publication with knowledge of the conditions. It is not possible to conclude to the requisite standard that the act may be attributed to the first respondent. This result might be seen to derive from the first respondent's decision not to explicate by evidence the circumstances which led to the CCTV footage being posted on the NT News website. That was the first respondent's right in the context of proceedings brought against it for the criminal punishment of an alleged contempt.

[72] However, had the first respondent refused to remove the CCTV footage from its website when the breach was identified by the Registrar on 10 March 2017 it would have been liable in contempt for the publication after that time.

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Cases Cited (25)