Sentencing Act 1995, s 3(3)

Respondent sentenced to 3 months' imprisonment for each contempt, suspended for a period of 2 years

Sentences to be served concurrently, but cumulatively on sentence imposed on 28 August 2000

Attorney General for the State of New South Wales v Radio 2UE Sydney Pty Ltd & John Laws [1998] NSWSC 28

Deputy Commissioner of Taxation v Hickey [1999] FCA 259

Harman v Home Department State Secretary [1983] 1 AC 280

1 JUDGMENT OF THE COURT: On 21 November 2000 the respondent was found guilty of contempt of court in relation to the publication of material which had a real tendency to interfere with the administration of justice: Resolute Ltd & Anor v Warnes [2000] WASCA 359. The specific contempts are identified in the reasons of Ipp J (at [44] and [45]). They were contained in a number of facsimile communications from the respondent to the solicitors for the first applicant and/or to others to whom the material was published. As Ipp J has pointed out in his reasons (at [20]), there were two categories of contempt constituted by warnings or threats to the first applicant. They were:

(1) The warning that the respondent would publish to others the fact that the first applicant was foolishly incurring vast legal costs against the respondent without any prospect of recovering them.

(2) The warning that whilst the litigation continued the respondent would publish other harmful details about the first applicant and its board of directors.

2 The Court has concluded that the warnings or threats that fell into the first category were "unfair, scurrilous and abusive" and by publishing such material as he did, the respondent was in a position to have had a marked influence on the share price of the first applicant and its general reputation. The observations of the respondent which constituted the second category of contempt were "extreme comments" by the respondent as to the alleged misconduct of the board of the first applicant and insolvency of the applicant. They were intemperate and improper.

3 Ipp J has pointed out in his reasons that the respondent's contempt was by way of some compulsive obsession by which he has sought to bring alleged misconduct of the board of the applicant to light. The Court has concluded that it is not satisfied beyond reasonable doubt that the respondent committed the contempts with the subjective intent of interfering in the course of the administration of justice. Intention to interfere with the due administration of justice is not of course necessary to constitute a contempt: Harkianakis v Skalkos (1997) 42 NSWLR 22 (at 27 - 30). The absence of intent to interfere with the due administration of justice is, however, relevant to the question of penalty.

4 Order 55 r 7 of the Rules of the Supreme Court 1971 provides for the punishment of contempt of court in a number of different ways. It is not however to be taken as definitive of the Court's powers in this respect. In cases where there are substantial mitigating circumstances and where the interference with the due administration of justice has been by way of error of judgment it may be appropriate to impose no punishment at all: R v Pearce (1992) 7 WAR 395 per Malcolm CJ at 432 (a case of unintentional interference with the due administration of justice by reason of a television interview with a witness during the course of a trial).

5 In Harris v Muirhead [1993] 2 Qd R 527, Thomas J held that the Supreme Court of Queensland had an inherent power to impose a wide range of orders in cases of contempt, including the imposition of a suspended sentence. His Honour adopted the view of Lord Denning MR in Morris v Crown Office [1970] 2 QB 114 (at 125) that the powers at common law to sentence for contempt enable a Judge to impose a suspended sentence. In AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 114 - 115 the High Court confirmed the flexibility of the orders available to the Court to punish for contempt, and added:

"Contempt of court is a distinctive offence attracting remedies which are sui generis: Morris v Crown Office. It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result."

The powers of the Court to punish for contempt are thus in the inherent jurisdiction of the Court and are wide and flexible. The provisions of the Sentencing Act 1995 are specifically excluded from application to punishment for contempt (s 3(3)).

6 On 28 August 2000 the respondent was committed to prison by Miller J for one month for contempt of court, suspended for a period of 12 months. This contempt related to infringement of orders made in this Court by Scott J, who had granted an interim injunction restraining the respondent from publishing various matters relevant to the affairs of the first and second applicants. That interim injunction had been granted on 22 February 2000 and the breach was therefore an act of contempt subsequent to the acts which have been found to have constituted contempt of court in this case. In imposing the suspended sentence Miller J made reference to the respondent's misguided obsession in relation to the affairs of the first applicant and the conduct of its board of directors. The observations then made and the reasons for his Honour's imposition of a suspended sentence are equally applicable to the contempt presently before the court.

7 The present contempts are such that the only punishment appropriate to the case is the imposition of a term of imprisonment. However, in the circumstances suspension of that sentence would be appropriate. By suspending a term of imprisonment the Court gives to the respondent the opportunity to avoid further transgressions in relation to the applicant.

8 The appropriate punishment is that on each of the contempts the respondent be sentenced to 3 months' imprisonment dating from today. The sentence will be suspended from today for a period of 2 years. The suspension of the sentence will be on condition that the respondent refrain from committing any further contempt of court. Upon proof to any member of the Court of breach of the above condition within the period of 2 years from today a warrant may be issued for committal to prison of the respondent and for him to be further dealt with in accordance with law.

9 The sentences will be concurrent in respect of the two contempts before the Court. They will be cumulative on the sentence pronounced by Miller J on 28 August 2000.