Y & Z v W

Court of Appeal (NSW)|2007-11-12|Before: Spigelman CJ, Giles JA, Ipp JA

CITATION: Y & Z v W [2007] NSWCA 329 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Spigelman CJ at 1; Giles JA at 13; Ipp JA at 24

DECISION: (1) The appeal is partially upheld. (2) Order 1.2 is set aside. (3) Order 1.3 is varied by the deletion of the words "and 1.2". (4) Otherwise the appeal is dismissed. (5) W is to pay the appellants' costs of the appeal. (6) The matter is remitted to the Equity Division for further hearing as to whether, having regard to the new evidence that has been filed, interlocutory restraining orders should continue to be of force and, if so, in what terms. (7) Orders (2) and (3) are suspended for 28 days from the delivery of this judgment to enable the hearing contemplated by order (6) to take place and appropriate orders to be made.

CATCHWORDS: CONTEMPT OF COURT - misuse of court's processes - whether the threatened filing in separate proceedings by the appellants of an affidavit containing irrelevant and scandalous material, thereby prejudicing the respondent, amounted to an abuse of the court's processes - CONTEMPT OF COURT - obstruction of the due administration of justice - whether, by bringing improper pressure to bear on the defendant in collateral proceedings so as to induce the settlement of such proceedings, the appellants obstructed the due administration of justice - whether the fact that such pressure was channelled through the respondent as a third party intermediary was material to the court's finding that the appellants were guilty of contempt of court - onus and standard of proof - whether the material in question had a real and definite tendency, as distinct from a mere possibility, to interfere with the due administration of justice as to entitle her to interlocutory relief - objective / subjective test - CONTEMPT OF COURT - orders of chambers judge - width of orders - whether particular orders made by chambers judge were unnecessary or too wide - whether the unchallenged orders were wide enough to afford the respondent the protection she required - whether potential publication of material calculated to expose the respondent to ridicule, hatred and contempt - considerations of freedom of speech - balance between public interest in freedom of speech against public interest in the administration of justice - whether the orders granting an injunction were so wide as to distort this balance - consideration of potential harm to third parties as a result of improper pressure - DEFAMATION - orders of chambers judge - width of orders - whether order on defamatory ground could be supported - whether respondent established with reasonable certainty the words of the threatened publication - difference between final and interlocutory injunctions - whether requirement of reasonable certainty alleviated in cases of interlocutory relief - whether, if the words were uncertain, such uncertainty leads to the conclusion that the chambers judge could not conclude that there was certainty of defamatory publication - consideration of public interest in free speech - whether balance of convenience favoured the granting of an interlocutory injunction - EQUITY - equitable remedies - injunctions - interlocutory injunctions - contempt of court - misuse of processes of court - threatened filing of affidavit containing irrelevant and scandalous material - width and particularity of orders - EQUITY - equitable remedies - injunctions - interlocutory injunctions - contempt of court - obstruction of the due administration of justice - improper pressure placed on party to collateral proceedings - width and particularity of orders - EQUITY - equitable remedies - injunctions - interlocutory injunctions - defamation - threat to publish material carrying defamatory imputations - width and particularity of orders. D

LEGISLATION CITED: Industrial Relations Act 1988 (Cth), s 299(1)(d)

Attorney-General v Hislop [1991] 1 QB 514 Attorney-General v News Group Newspapers Limited [1987] QB 1 Attorney-General v Newspaper Publishing Pty Ltd [1988] Ch 333 Attorney-General v Punch Ltd [2003] 1 AC 1046 Attorney-General v Times Newspapers Ltd [1974] AC 273 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Bankstown City Council v Alamdo Holdings Pty Limited (2004) 135 LGERA 312 Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 Bhagat v Global Custodians Limited [2002] NSWCA 160 Bonnard v Perryman [1891] 2 Ch 269 British Data Management plc v Boxer Commercial Removals plc [1996] 3 All ER 707 Commercial Bank of Australia Limited v Preston [1981] 2 NSWLR 554 Curro v Beyond Productions Pty Limited (1993) 30 NSWLR 337 Davis v Baillie [1946] VLR 486 Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242 Fry v Bray (1959) 1 FLR 366 Harkianakis v Skalkos (1997) 42 NSWLR 22 CASES CITED: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 Maggbury Pty Limited v Hafele Aust Pty Limited (2001) 210 CLR 181 Miller v Jackson [1977] QB 966 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 P A Thomas & Co v Mould [1968] 2 QB 913 Parmiter v Coupland (1840) 6 M & W 105 Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia (1998) 195 CLR 1 R v Gregory (1843) 1 Cox CC 31 R v Martin (1848) 5 Cox CC 356 R v Thompson [1989] WAR 219 Resolute Ltd & Anor v Warnes [2000] WASCA 359 Silktone Pty Limited v Devreal Capital Pty Limited (1990) 21 NSWLR 317 Smith v Lakeman (1856) 26 LJ Ch 305 Thompson-Schwab v Costaki [1956] 1 All ER 652 Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496 Wood v Sutcliffe (1851) 2 Sim (NS) 163 Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775

Y (First Appellant) PARTIES: Z (Second Appellant) W (Respondent)

COUNSEL: N C Hutley SC/D R Pritchard SC (First & Second Appellants) B McClintock SC/D Studdy (Respondent)

SOLICITORS: Swaab Attorneys (First & Second Appellants) Minter Ellison Lawyers (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40764/06 SC 5647/06

SPIGELMAN CJ GILES JA IPP JA

Monday 12 November 2007 Y and Z v W Judgment 1 SPIGELMAN CJ: The facts and submissions appear in the judgment of Ipp JA which I have read in draft. Subject to the following additional observations, I agree with the reasons of Ipp JA. 2 In my opinion this matter can be disposed of on the basis of the cause of action in contempt. It is not necessary to determine the case on the basis of the cause of action in defamation. 3 In the context of interlocutory injunctions it is well established that the nature of the right asserted by the Applicant for an injunction is a matter of significance, for example, to the strength of the case which the Applicant must establish and to the identification of the practical consequences of the interlocutory injunction sought. (See Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 at 622; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 esp at [65], [72], [85] per Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J relevantly agreed at [19].) 4 Such references to "practical consequences" encompass the strength of the probability that the Applicant will be entitled to relief at trial and also to the comparison implicit in determining the balance of convenience. In my opinion, the "practical consequences" of an interlocutory injunction are also relevant to the determination of the appropriate width of an injunction. Such matters differ if the cause of action is defamation rather than some other basis, relevantly, contempt of court. 5 There is a significant line of authority which applies the restrictive approach to interlocutory injunctions in the case of defamatory publications identified in Bonnard v Perryman [1891] 2 Ch 269, to restraints upon publication based on other causes of action. (See e.g. Australian Broadcasting Corporation v O'Neill at [210] per Heydon J.) However, that approach is not appropriate in the case of a contempt of court, at least where the person to be restrained can identify neither a public interest nor a private interest in any publication. (C/f Commercial Bank of Australia Limited v Preston [1981] 2 NSWLR 554 at 558-562; 566; Attorney-General v News Group Newspapers Limited [1987] QB 1 at 7-8, 12-16, 19-20; Attorney-General v Newspaper Publishing Pty Ltd [1988] Ch 333 at 371.) In this context matters of this character will fall to be considered with reference to the Bread Manufacturers defence. (See Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242.) 6 While the Court will, of course, always act on the basis that it must respect individual autonomy and will not restrain any person's freedom save to protect a legal right, the Court has jurisdiction to act in that manner and in a proper case will do so. For the reasons advanced by Ipp JA, this is a proper case. 7 It appears that the orders made by Brereton J proceeded on the basis that Order 1.1(c) was based on the cause of action in defamation and Order 1.2 was based on the cause of action in contempt. I agree with Ipp JA that Order 1.2 is too wide. 8 I also agree that an order in general terms was entirely appropriate in the circumstances, particularly having regard to the urgency of the case, the completely unspecified nature of the threatened publication and the capacity that the Appellants had to put pressure upon the Respondent to act in the manner sought by means of selective release of information over a period of time. Notwithstanding that the actual threat concerned filing affidavits in proceedings, the reference to the effect of publicity indicated clearly that other conduct to make the allegations public had to be restrained. (Compare the rejection by Hunt J of an undertaking to sever the link between publication and the legal proceedings in Commercial Bank v Preston supra at 567 F-G.) 9 Although I agree that Order 1.2 was too wide, a general order based on the cause of action in contempt was justified. Some different formulation could have been devised other than Order 1.1(c), which clearly refers to defamatory conduct. Nevertheless, in the circumstances presented to this Court on the appeal it is appropriate to uphold Order 1.1(c) on the basis of contempt. 10 This Court is aware that the Respondent proposes to seek orders of a more specific character when the matter returns to a judge sitting at first instance. In my opinion, that could and should have occurred earlier. That is a relevant matter on the issue of costs of the appeal. Nevertheless, at the time of the original trial the Respondent was entitled to an order in general terms which would prevent the Appellants carrying out the threat to put pressure upon the Respondent so as to induce a settlement of the other proceedings. There is no reason to interfere at this stage with an order of the breadth that has been made. 11 The orders made by Brereton J were made until further order, not until trial. In the circumstances then before the Court, in order to ensure that no conduct occurred that was capable of leading to improper pressure on a party to proceedings, a wide order expressed in general terms was appropriate. Nevertheless, it was clear that the information said to be available to the Appellants would have been capable of more precise delineation, as has now occurred. Directions could have been made to ensure that that process occurred in an expeditious manner, but that was primarily a matter for the Appellants to initiate. 12 I agree with the orders proposed by Ipp JA. 13 GILES JA: The questions in the appeal are described in the reasons of Ipp JA. These are edited reasons for general publication, following the course taken by his Honour. 14 I agree that W was entitled to interlocutory relief on the basis of contempt of court, in relation to both misuse of the court's process and interference with the administration of justice, and with his Honour's reasons. I also agree that order 1.2 is too wide and can not stand. What follows is concerned with interlocutory relief on the defamation ground and order 1.1(c). 15 Order 1.1 is framed in terms of publication of imputations, and plainly enough was founded on the defamation ground. The cause of action for defamation is in relation to the publication of defamatory matter which carries a defamatory imputation, and it may not be correct to speak of publishing an imputation, but no point was taken in that respect. While order 1.1 could be supported as relief on the basis of contempt of court, its framing makes it desirable to address whether it can be supported on the defamation ground. 16 The appellants submitted that order 1.1 could not be supported because the respondent had not established with reasonable certainty the words of the threatened publication. They referred to British Data Management plc v Boxer Commercial Removals plc [1996] 3 All ER 707 in which, in striking out a statement of claim because the words complained of were not set out with reasonable certainty, the Court said at 717 that where an injunction was sought particularity was needed "to enable the court to frame an injunction defining with reasonable precision what the defendant is restrained from publishing". 17 The reasonable certainty desirable for a statement of claim and for final injunctive relief may be alleviated where interlocutory relief is claimed. The Court cited with apparent acceptance the unreported case of A v Thames Television Ltd, in which the threatened publication was an intended broadcast the terms of which the defendants refused to disclose and an interlocutory injunction restraining the publication of material described in general terms was upheld. In Attorney-General v Punch Ltd [2003] 1 AC 1046 the interlocutory injunction was again in general terms, restraining the disclosure of information "which relates to or may be construed as relating to the Security Service or its membership or activities or to security or intelligence activities generally". Their Lordships fully recognised that an injunction should make clear what acts were prohibited, but regarded the order as acceptably expressed "in clear, if wide, terms" (per Lord Nicholls at [37]). Lord Hoffman observed at [84] that it would have been better if the judge could have devised a form of injunction which prohibited only the publication of harmful material, allowed the publication of innocuous material and left no room for dispute about the category into which any item of information fell, but - " … I can quite understand that Hooper J felt unable to produce a form of words which would have this effect when applied to a mass of information of which he had no knowledge. In those circumstances it seems to me that the form of order which he made was well within the ambit of this discretion." 18 In his conversation with the solicitor Y did not describe the material to be published in any detail, but said it was "very serious and embarrassing". It plainly enough included material founding the imputations in order 1.1(a) and (b) and on the evidence before the judge it can reasonably be inferred that it went much further. In the face of the generalised threat to publish very serious and embarrassing material, interlocutory relief could in my opinion be granted notwithstanding that W was unable to state with any degree of particularity what the appellants threatened to publish. Publication would cause irreparable harm to W, and it would be a reproach to the administration of justice if the appellants could rely on the lack of particularly of their threat to resist the grant of interlocutory relief. 19 The appellants also submitted that order 1.1 could not be supported because the uncertainty of what might be published meant that the judge could not conclude that there was certainty of defamatory publication. They referred to Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. The judgments in that case consider the exceptional caution with which publication of allegedly defamatory material should be restrained having regard to the public interest in free speech, issues which may arise such as privilege or truth, respect for the role of the jury and the possibility of nominal damages. In the appellants' submission, the uncertainty meant that the judge could not be satisfied that these considerations were outweighed by exceptional need for the restraint. 20 An injunction may nonetheless be granted if proper account is taken of the public interest in free speech and the other considerations more particular to the allegedly defamatory material, albeit that it is an "unusual form of relief" (per Gleeson CJ and Crennan J at [33]). There is still a balancing of convenience, but with the wider consideration of freedom of speech in our democracy weighing heavily against prior restraint of publication. 21 To repeat, publication would cause irreparable harm to W, and as Ipp JA says the appellants can have no legitimate interest in publishing material defamatory of her; nor would freedom of speech as a democratic value be served by publication under the guise of court proceedings and as an exercise in blackmail. The appellants did not suggest defences which might be available to them or that damages would be nominal, and relied only on the uncertainty of what might be published. In my opinion it was open to the judge to conclude that the balance of convenience, in circumstances which deserve the adjective exceptional, favoured the grant of an injunction. 22 Order 1.1(c) adopts the test stated by Parke B in Parmiter v Coupland (1840) 6 M & W 105 at 108, that a publication will be defamatory if "calculated to injure the reputation of another by exposing him to hatred contempt or ridicule … ". The test has been put in other language, but not to the detriment of this classic statement. "Calculated" in the test does not mean intended, since the intention of the publisher is immaterial and the imputation conveyed is determined objectively accordingly to the meaning which the ordinary reasonable person would give to the publication. (So also in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, s 299(1)(d) of the Industrial Relations Act 1988 (Cth) making it an offence to use words "calculated … to bring a member of the Commission or the Commission into disrepute" was said to mean likely as distinct from intended.) In my opinion, order 1.1(c) is to be so understood. There can be no valid complaint of language which would suffice to direct a jury, and the appellants' generalised threat can in the circumstances be met in the grant of interlocutory relief by a general restraint. Accordingly, in my opinion order 1.1(c) should stand. 23 I agree with the orders proposed by Ipp JA. 24 IPP JA: These are edited reasons that are annexed to fuller reasons that are subject to an order of confidentiality and have been published to the parties and their legal advisors alone. These edited reasons are for general publication. 25 The appellants appeal by leave from a decision of Brereton J made on 17 November 2006 whereby he granted an interlocutory injunction restraining the appellants from publishing or disclosing certain information or matters concerning the respondent. 26 The proceedings before his Honour were heard in a closed court and he made orders that the proceedings be confidential. The leave to appeal application was also heard in closed court. In granting leave, this Court made orders that no information tending to reveal the identity of the appellants or the respondent be published or otherwise revealed, that access to the Court file by non-parties in respect of any document not be granted without the leave of the Court, and - if application for access is made - the parties are to be notified by the registrar so as to be heard if they wish. The appeal itself was argued in a closed court and the orders protecting the identity of the parties and limiting access to the Court file by non-parties remain in force.

27 The appellants were parties to proceedings in this court against the former husband (X) of the respondent (W). In a conversation with a solicitor acting for her in other proceedings, the first appellant (Y) allegedly threatened, unless W intervened with X to ensure a settlement of that case, to file an affidavit in proceedings which made allegations of gross impropriety against her (involving, amongst other things, her relationship with a person, A), the publication of which in the course of the proceedings in this court would severely embarrass her.

28 W, by summons filed on 3 November 2006, made an application in the Equity Division of this Court to Brereton J seeking, substantially, interlocutory relief. On that application, his Honour made orders which restrained Y and Z "until further order" from: "1.1 Publishing to any person: (a) any imputation of and concerning [W] that she has had a sexual relationship with A; (b) any imputation of and concerning [W] that she has offered A's former wife a sum of money in return for her agreeing to divorce him; (c) any other imputation of and pertaining to [W] which is calculated to expose her to hatred, ridicule and contempt. 1.2 Publishing or disclosing to any person or institution any information or allegation of and concerning [W]. 1.3 Communicating to [W], directly or indirectly, any threat to make any publication or disclosure referred to in orders 1.1 and 1.2, and/or any request or demand for payment or other benefit in return for not making any such publication or disclosure. 1.4 Publishing or disclosing, to any person or institution, these proceedings, these orders, the identity of [W], or anything which might identify her as a party to these proceedings." 29 As Brereton J stated, the ultimate question to be answered in the context of an application for substantive interlocutory relief is whether, having regard to the balance of convenience, the applicant has established a sufficiently arguable case for final relief to justify the grant of such interlocutory relief. His Honour remarked: "[T]he strength of the prima facie case and the balance of convenience each influence what is required on the other, so that the stronger the prima facie case for final relief, the less will be required to tip the balance of convenience in favour of granting injunctive relief; whereas the greater the balance of convenience in favour of injunctive relief, the less strong is the prima facie case required to justify the grant of an injunction."

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 bears out his Honour's approach to the principles governing the grant of an interlocutory injunction. 30 Brereton J granted the interlocutory injunction on the bases of a threatened defamation and a threatened abuse of process or contempt of court. On the defamation ground, his Honour held, "there is a seriously arguable case for final relief by way of an injunction to prohibit publication of imputations defamatory of [W]". On the contempt ground, his Honour found, "there is a seriously, if not strongly arguable case…for final relief by way of an injunction restraining the defendants from engaging in the conduct which they threaten upon the grounds that for them to do so would be a contempt of court".

31 Brereton J had regard to the balance of convenience in the conventional way. He held that there was no "significant practical detriment" to the appellants should an interlocutory injunction be granted and, should he wrongly decline to grant an injunction, the detriment to W would be "irremediable". His Honour observed, "no amount of damages can undo the publication once it has taken place". He said, "the stream of justice may be poisoned" by the impact of the threatened publication. He concluded that the balance of convenience "plainly and overwhelmingly favours the grant, rather than the withholding, of that interlocutory relief sought". 32 The appellants make no complaint as to the principles his Honour applied in relation to the requirements for interlocutory relief. They also make no complaint about his Honour's conclusions concerning the balance of convenience. In substance, they assert only that his Honour erred:

(a) in granting an interlocutory injunction on the defamation ground where the Court could only speculate as to the nature and content of the threatened defamatory material and whether and how it would be published;

(b) in granting an interlocutory injunction on the contempt ground where the Court could only speculate as to whether W would apply pressure to X and, if so, whether X might be affected by such pressure; and

34 The legal principles as regards contempt of court as they are applicable to this case are well-settled. 35 First, the court has jurisdiction to grant an interlocutory injunction restraining a threatened contempt of court: see Attorney-General v Times Newspapers Ltd [1974] AC 273; Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716; Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775. 36 Secondly, misusing the court's processes, at least where other parties are thereby prejudiced, may amount to a contempt: R v Gregory (1843) 1 Cox CC 31; Nigel Lowe and Brenda Sufrin, Borrie & Lowe, The Law of Contempt (Butterworths: London, 3rd ed, 1996) at 459, 461.

37 Thirdly, it is a contempt of court to obstruct the due administration of justice by attempting to induce a settlement of an action by improper threats or intimidation. In Attorney-General v Times Newspapers Ltd, Lord Simon said the following on this point (at 318): "It is a contempt even privately to threaten…a party ( In re Mulock (1864) 3 Sw & Tr 599). The threat there, by someone who 'had no interest whatever in the matter,' was to 'publish the full truth' unless a petition were withdrawn. Sir James Wilde, Judge Ordinary, said, at p 601: '…she [the petitioner] claims the right to approach this court, free from all restraint or intimidation. It is a right that belongs to all suitors.'" Lord Cross said (at 326): "To seek to dissuade a litigant from prosecuting or defending proceedings by threats of unlawful action, by abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose and such like, is no doubt a contempt of court…" 38 Fourthly, the bringing of improper pressure on a party to collateral proceedings amounts to a contempt of court (involving the obstruction of the due administration of justice) irrespective of whether or not the pressured party is, in fact, deterred from litigating. In Smith v Lakeman (1856) 26 LJ Ch 305, the plaintiff sent a letter to the defendant pending the suit. Stuart V-C said (at 306): "[The letter] was a threat for the purpose of intimidating [the defendant] as a suitor, and, therefore, whether it had had that effect or not, it was unquestionably a contempt of court." See also Harkianakis v Skalkos (1997) 42 NSWLR 22 and Resolute Ltd & Anor v Warnes [2000] WASCA 359 at [13]. 39 Fifthly, in a contempt involving obstruction of the administration of justice, the plaintiff must prove, according to the criminal standard of proof, that the material in question has, as a matter of practical reality, a tendency to interfere with the course of justice in a particular case: see John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372 per Dixon CJ, Kitto, Fullagar and Taylor JJ; Harkianakis v Skalkos at 27 per Mason P; Resolute v Warnes at [13]. The test was put succinctly by O'Loughlin J in Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496 where his Honour said (at 505) that the court must determine "whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate".

40 In R v Gregory, Coltman J, when delivering the judgment of the Central Criminal Court (the other member being Lord Denman CJ), observed that the defendant in that case had put in affidavits that contained matter that was defamatory and irrelevant and "ought never to have been admitted on the files of the court". His Lordship said (at 32): "Undoubtedly, the parties filing such affidavits were guilty of a contempt of court." 41 It is seriously arguable that the evidence before Brereton J established that the appellants threatened that, in the proceedings between them and X, they would file an affidavit containing scurrilous material not for the bona fide purpose of advancing the true issues in those proceedings, but in order to bring improper pressure on X to settle the case. 42 On this ground alone, W was entitled to appropriate interlocutory relief restraining the appellants from their threatened course of conduct. I stress that by "this ground" I am referring to the ground of contempt of court based on misusing the Court's processes. The process involved concerns the threatened filing of the affidavit. The interlocutory relief to which W would be entitled under this ground would be limited to threatening to file and filing such an affidavit. The orders actually made go much further than such relief. 43 It was common ground between the parties that a considerable amount of new evidence had been filed since Brereton J made his orders, and the new evidence was highly relevant to whether any replacing orders should be made and, if so, in what terms. It was also common ground that, should the Court find that W was entitled to interlocutory relief of some kind (but not that ordered by Brereton J), the appeal should succeed and the orders made should be set aside; nevertheless, the setting aside of the orders should be stayed for a reasonable time so that the matter might be listed once more in the Supreme Court before a single judge so that, in the light of the new evidence, the Court could decide on the precise nature of the relief that would be appropriate in all the circumstances. The Court was given a minute of orders that W would seek in such a hearing, but no application to this Court was made on behalf of W that amended orders be made to replace those made by Brereton J. 44 I turn now to the second leg of the contempt case against the appellants, namely, that they sought to bring improper pressure on X (to settle the collateral proceedings between X and the appellants) by bringing improper influence to bear on W. This, in essence, is a case of improper interference with the administration of justice. 45 The fact that W was a third party intermediary bringing pressure on X (the party to the litigation) is not material to the argument that the appellants were guilty of contempt of court in attempting to interfere or interfering with the administration of justice. Contempt of this kind may be committed when the pressure is indirect and does not amount to direct pressure being placed by one party on another: see, for example, R v Martin (1848) 5 Cox CC 356; Yeshiva Properties at [31] per Young J. 46 The appellants argued that there was "a fundamental evidentiary gap in the respondent's case" on this ground. The "gap" was said to be that "there was no evidence led from the respondent either directly or on information and belief about any actual or potential relationship or communication [W] had with [X] at any time after [the close relationship between W and X terminated] in 2003". 47 Mr Hutley SC, who together with Mr Pritchard appeared for the appellants, submitted that there were two important aspects of the evidentiary gap. The first was that there was no evidence of any present relationship between W and X and there was no evidence to suggest that W was in communication with X or might or could communicate with him. The second was put this way: "It is [X] who was the party to the other Supreme Court proceedings and in relation to which it was alleged that there was the risk of being influenced. There was no evidence before his Honour upon which his Honour could infer that there was any necessary 'real risk' that [X] … would be influenced by any theoretical conduct. It is not appropriate … in such a case to proceed by way of speculations. Further, in any event, even if there was evidence of some real risk, that evidence would only justify a restraint from approaching the respondent and not upon the appellants utilising such information as they have in the course of litigation." 48 In written submissions, the appellants argued: "The absence of any evidence from [X] is not necessarily dispositive of the application. However, the absence of any real possibility of the fact of any communication between W and [X] and that any actual possible communication creating some real risk that [X] would be influenced in the conduct of the other Supreme Court proceedings is dispositive." 49 I repeat that W had been married to X; in addition, she was the mother of children by him. On these facts, in my opinion, there is a rebuttable inference that a channel of communication existed between X and W, at least, in connection with their children. 50 Additionally, it is of considerable cogent force that Y, himself, believed that threatening W (through her solicitors) would be a good way to bring pressure to bear on X. Once Y was of this opinion, it is difficult for an argument to be advanced on his behalf that the Court should not, when considering whether an interlocutory injunction should be granted, infer that W would be able to, and would communicate with, X. 51 In my opinion, the appellants' first argument based on the evidentiary gap is without substance. 52 I come now to the question raised by the appellants' second evidentiary gap argument, namely, whether there was a real risk that X would be influenced to settle the appellants' claim against him were W to communicate Y's threats to him.

53 It is seriously arguable that the material that Y was threatening to publish comprised allegations of gross impropriety and other embarrassing information concerning W. 54 Having come to this conclusion, the next question that needs to be addressed is that described in my judgment in Resolute v Warnes (with which Kennedy and Miller JJ agreed) (at [19]), namely: "whether the published material has, as a matter of practical reality, a real (or clear) and definite tendency to interfere with the course of justice. This question depends on an objective assessment of the relevant material. The court must 'ascertain whether the publication is such as may affect the minds of reasonable men': Fry v Bray (1959) 1 FLR 366 at 376." 55 In Bhagat v Global Custodians Limited [2002] NSWCA 160, Spigelman CJ (with whom Brownie AJA and I agreed) at [48] referred to authorities "which pose a distinction between an 'objective' and a 'subjective' test for the real tendency issue, preferring an objective test." The Chief Justice said (at [49]): "These authorities are concerned with the law of contempt by publication, in which context different considerations arise when balancing the public interest in freedom of speech against the public interest in the administration of justice. In such cases the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent. At least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper. At least in such a context, I do not see why the Court must chose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety." 56 In my reasons in Bhagat I accepted that, at least in cases of contempt of court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. I said (at [54]): "That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications." 57 In the present case, the threatened publication of the material in question does involve "private communications to individuals" (namely, between Y and W and between W and X). 58 Mr Hutley submitted that, applying the criteria expressed in Bhagat, W had not established that there was a real risk "as opposed to a remote possibility" of X being influenced by the material in question (cf Commercial Bank of Australia Limited v Preston at 562 per Hunt J). 59 In my opinion, it is seriously arguable that the material in question is capable of having the most serious effect on the reputation of X. X holds a position of responsibility and persons associated with him, arguably, would be appalled at the allegations. 60 In any event, in my opinion, it is seriously arguable that, as a matter of common sense, apart from the particular subjective characteristics of X, there is a real risk of any married person of standing in the community being influenced by the allegations. It is seriously arguable that, on whatever test one applies, the material in question has, as a matter of practical reality, a real and definite tendency to interfere with the course of justice. 61 I would add that the very fact that Y made the threats as he did indicates that he thought that there was a real probability that those threats would influence the conduct of X. At the interlocutory stage, it hardly lies in the mouth of the appellants to argue that there was no evidence that X would have been influenced. 62 It is arguable that the appellants have already committed contempt of court by making the threats to W's solicitor. Nevertheless, in my opinion, the course of conduct of the appellants is indicative of a continuing intention on their part to threaten W and X for their own ends. 63 Mr Hutley submitted that, were W's arguments in regard to this aspect of the matter to be upheld, the appropriate order would simply be to restrain the appellants from filing the threatened affidavit. I do not agree. In my view, the best way of preventing the appellants from persisting in this kind of conduct is to restrain them from making threats of that kind in whatever possible manner. 64 In my opinion, therefore, Brereton J was correct in holding that W had established that she was entitled to interlocutory relief of some kind in regard to her case based on contempt of court arising out of the appellants' interference with the administration of justice. 65 I turn now to the appellants' argument on the scope of Brereton J's orders. Mr Hutley submitted that the orders were too wide on three bases. The first was that orders in those terms were too vague in that they required a judgment to be made each time the appellants said anything about W (the judgment being whether what was said was "calculated" to expose W to hatred, ridicule or contempt). The second was that the orders infringed the right of freedom of speech. The third was that the orders, particularly orders 1.1(c) and 1.2, were too wide, "were of an exorbitant character" and "could not be regarded as achieving the minimum equity to do justice". He submitted that a restraint, if any, should not extend beyond bringing pressure to bear upon W. 66 For the sake of convenience, I shall re-state orders 1.1(c) and 1.2: "1.1 Publishing to any person:

… (c) any other imputation of and pertaining to [W] which is calculated to expose her to hatred, ridicule and contempt. 1.2 Publishing or disclosing to any person or institution any information or allegation of and concerning [W]." 67 It is convenient to commence with order 1.2, namely, the order restraining the appellants from "[p]ublishing or disclosing to any person or institution any information or allegation of and concerning [W]". 68 Order 1.2 restrains the appellants from discussing anything whatever relating to W in any circumstances, including, for example, where she does her shopping, whether she was seen at any particular place on any particular day, what she was wearing and a myriad of other unexceptionable topics. 69 I would make two points about order 1.2. First, it is unnecessary: orders 1.1(a), (b) and (c) afford W the protection she needs. Secondly, it goes much further than is required. It is a well-established principle that a restraining order must extend no further than is necessary to serve the purpose for which the order is to be made (see, for example, Attorney General v Punch Limited [2003] 1 AC 1046 (at 1073, [111]). I would uphold the appellants' arguments in regard to this order. 70 Order 1.1(c) restrains the appellants from publishing to any person "any … imputation of and pertaining to [W] which is calculated to expose her to hatred, ridicule or contempt". 71 As I have mentioned, Mr Hutley's first argument was that an order in terms of order 1.1(c) was too vague in that it required a judgment to be made each time the appellants said anything about W as to whether what was said was "calculated" to expose W to hatred, ridicule or contempt. 72 Generally, an order should be so expressed that the person to whom it is directed should, by reading it and without more, be able to know what it is that he or she must do or refrain from doing in order to comply with its terms: see, for example, Attorney General v Punch Limited (at 1073, [111]). It is also correct that the terms of order 1.1(c) require the appellants to make a judgment when publishing material about W whether that material is "calculated" to expose her to hatred, ridicule or contempt. That, however, does not necessarily make the order voidable. 73 An order for an interlocutory injunction is discretionary; and a discretionary consideration is "what is to happen if there is a breach, and committal proceedings or punitive proceedings are sought on behalf of the plaintiff" (per O'Connor J in P A Thomas & Co v Mould [1968] 2 QB 913 at 922 to 923). The facts of a particular case may be such that justice may require an order to be made in terms that may, in some circumstances, give rise to uncertainty. It may be that, if circumstances in fact give rise to uncertainty, an order for contempt of court will not be made for the alleged breach of the order. On the other hand, if the particular circumstances are such that it is certain beyond reasonable doubt that the order has been breached, there is no reason why the defendant should not be found guilty of contempt. 74 An illustration of the point is P A Thomas & Co v Mould. An order was made enjoining the defendants from divulging certain confidential information. The defendants divulged certain information that they denied was confidential. They were found not to have committed contempt as the order did not make clear what the plaintiffs were seeking to protect and, as there was uncertainty on the facts as to whether the order had been breached, the plaintiff's motion was dismissed. Assume, however, that despite the breadth of the order, it was undisputable that the information divulged was confidential. In those circumstances, there is nothing in principle that would exculpate the defendants and allow them to escape liability for contempt. 75 In Bankstown City Council v Alamdo Holdings Pty Limited (2004) 135 LGERA 312, Spigelman CJ (with whom Giles JA and I agreed) discussed the form of the injunction that had been granted by the trial judge in that case. The trial judge had made orders restraining the appellant from doing certain things "so as to cause a nuisance" and requiring the appellant to do certain things "to abate the nuisance". Spigelman CJ (at 331, [99]) quoted the following extract from the fourth edition of Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (Butterworths: Sydney, 2002) at 21-505: "… commonsense and practice alike demonstrate that it is impossible to specify in the language of an injunction every detail of the obligations which it imposes on the person to whom it is addressed. In some cases, the practicalities of the facts may make it impossible to frame an injunction in anything but the most general terms; and, in any event, the danger of an order couched in overtly particular terms is that it may leave the defendant at liberty to indulge in reprehensible conduct which is almost but not quite enjoined, without committing any contempt. Thus, the standard form of injunction in a nuisance case consists of an order forbidding the defendant from doing the acts complained of…: Thompson-Schwab v Costaki [1956] 1 All ER 652 at 655; 1 WLR 335 at 340." 76 The Chief Justice observed (at 331, [100]): "Part of this passage was quoted with approval by Callinan J in Maggbury Pty Limited v Hafele Aust Pty Limited (2001) 210 CLR 181 at 220, where his Honour added: 'Excessively narrow formalism in framing the injunction may wreak its own injustice.'"

And concluded (at 332, [106] to [107]): "An injunction in the form ordered in this case does not, in my opinion, infringe the principle that an injunction ought to make clear what the defendant is required to do or not to do. As this Court said in a judgment of Meagher, Handley and Cripps JJA in Curro v Beyond Productions Pty Limited (1993) 30 NSWLR 337 at 349: 'The principle relied on is a counsel of perfection rather than a mandatory standard and there are limits to its application'. Under contemporary conditions many traditional restrictions on the scope and content of injunctions operate with diminished force." 77 An appeal to the High Court against this Court's judgment in Bankstown City Council v Alamdo Holdings Pty Limited succeeded (see (2005) 223 CLR 660) but the appeal concerned different issues and nothing in the reasons of the High Court affects what Spigelman CJ said in the passages I have quoted. 78 Applying these principles to the present case, I accept that there might well be circumstances where the question whether published material was calculated to expose W to hatred, ridicule or contempt was uncertain. I accept that, in those circumstances, it is unlikely that a charge of contempt would succeed. But, in my view, this was simply a discretionary consideration that Brereton J was required to take into account when deciding whether an interlocutory injunction should issue. 79 Having regard to the seriousness of the potential harm that would follow were the appellants not restrained, the strength of W's case, the overwhelming balance of convenience in favour of W, and the need to protect the administration of justice on an interlocutory basis, I consider that his Honour did not err in making an order in the terms of order 1.1(c). Without such an order, the appellants might be free to make good their threats. That would be harmful to the interests of justice. 80 I accept that the word "calculated" in order 1.1(c) requires a measure of judgment and, ordinarily, it would be undesirable for an injunction to be made that was dependent for its efficacy on the meaning of such a word. The circumstances, however, were extraordinary, and in my view at the interlocutory stage the interests of justice justified the making of order 1.1(c). 81 I turn now to the freedom of speech argument. 82 Spigelman CJ noted in Bhagat (at [49]) that when a court is concerned with an allegation of contempt by publication, the public interest in freedom of speech must be balanced against the public interest in the administration of justice. 83 In Resolute v Warnes, I said (at [37] to [38]): "While the Court is required to balance the interest of freedom of expression, which is a matter of public interest, and the due administration of justice which is likewise a matter of public interest ( R v Thompson [1989] WAR 219 at 223), a material factor in the equation is whether, in purporting to exercise freedom of expression in the public interest, the respondent acted in a proper manner. When propriety is to be considered, factors such as the truthfulness and accuracy of the report come into play ( Davis v Baillie [1946] VLR 486). Where criticism of a person's conduct is in issue, the fairness and temperate nature of the criticism may be determinative ( Attorney General v Times Newspapers Limited [1974] AC 273). Improper pressure will be held to constitute contempt: Attorney General v Hislop [1991] 1 QB 514 at 531 per Nicholls LJ. Thus, in Attorney General v Times Newspapers Limited Lord Reid said (at 297 - 298): '[W]here the only matter to be considered is pressure put on a litigant, fair and temperate criticism is legitimate, but anything which goes beyond that may well involve contempt of court'. And Lord Morris gave as an example of improper conduct (at 302): '[C]onduct … calculated so to abuse or pillory a party to litigation or to subject him to obloquy as to shame or dissuade him from obtaining the adjudication of a court to which he was entitled.'" 84 In the present case, the appellants can have no interest of any kind in publishing any imputation of and pertaining to W that is calculated to expose her to hatred, ridicule or contempt. On the other hand, as Brereton J pointed out, the harm caused to X, and W and her children, as well, should the appellants publish such imputations, may be irremediable. 85 I realise, of course, that as regards the contempt, the critical question is whether improper pressure might be brought to bear on X and it is the prejudice to X that is of primary importance. But potential harm to third parties is also relevant. In Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia (1998) 195 CLR 1, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said (at 41, [65] to 42, [66]): "In applications to grant interlocutory injunctions, the court is concerned to examine and in appropriate cases to protect, pending the trial, the moving party's right to relief against that party's opponent. But the rights of plaintiff and defendant are not the only rights considered in determining where the balance of convenience lies. In Wood v Sutcliffe (1851) 2 Sim (NS) 163 at 165-166 [61 ER 303 at 303-304] Sir Richard Kindersley V-C said: '[W]henever a Court of Equity is asked for an injunction in cases of such a nature as this, it must have regard not only to the dry strict rights of the Plaintiff and Defendant, but also to the surrounding circumstances, to the rights or interests of other persons which may be more or less involved: it must, I say, have regard to those circumstances before it exercises its jurisdiction (which is unquestionably a strong one), of granting an injunction.' The principle in Wood v Sutcliffe was approved by Cumming-Bruce LJ in Miller v Jackson [1977] QB 966 at 988: 'Courts of equity will not ordinarily and without special necessity interfere by injunction where the injunction will have the effect of very materially injuring the rights of third persons not before the court.' His Lordship cited with approval a passage from Dr Spry's Equitable Remedies (5th ed (1997), pp 402-403). We too adopt the author's statement: 'the interests of the public and of third persons are relevant and have more or less weight according to the other material circumstances. So it has been said that courts of equity 'upon principle, will not ordinarily and without special necessity interfere by injunction, where the injunction will have the effect of very materially injuring the rights of third persons not before the courts'. Regard must be had 'not only to the dry strict rights of the plaintiff and the defendant, but also the surrounding circumstances, to the rights or interests of other persons which may be more or less involved'. So it is that where the plaintiff has prima facie a right to specific relief, the court will, in accordance with these principles, weigh the disadvantage or hardship that he would suffer if relief were refused against any hardship or disadvantage that might be caused to third persons or to the public generally if relief were granted, even though these latter considerations are only rarely found to be decisive. (Conversely, detriment that might be caused to third persons or to the public generally if an injunction were refused is taken into account.)' Miller v Jackson has been approved and applied on a number of occasions in Australian courts. However, the weight to be given to third party interests varies according to the circumstances."

86 In Silktone Pty Limited v Devreal Capital Pty Limited (1990) 21 NSWLR 317, Kirby P said (at 324), "the inevitable impact of injunctions upon innocent third parties … should be taken into account". See also Meagher JA (with whom Waddell AJA agreed) at 331 to 332. 87 The problem that W faced when she brought her application for an interlocutory injunction was that it had to be brought with great urgency. At that stage, little was known about what the appellants intended to do, save that on the evidence they had made serious threats that, if implemented, might lead to serious consequences. I reiterate that W's case, prima facie, was strong and the balance of convenience overwhelmingly favoured her. 88 In such circumstances, to maintain the status quo, I consider that considerations of freedom of speech did not preclude Brereton J, in the exercise of his discretion, to make an order in the terms of order 1.1(c). The order, being interlocutory, was not necessarily permanent. In my view, it was an appropriate means of regulating the situation to ensure that justice was done pending some time in the future when investigations (whether through discovery, interrogatories, or otherwise) might reveal greater detail of the precise nature of the material that the appellants were threatening to use to apply improper pressure. 89 I now turn to Mr Hutley's argument that the orders, particularly order 1.1(c), were too wide and "could not be regarded as achieving the minimum equity to do justice" (and should not go further than restraining the appellants from applying pressure on W). 90 In my view, the factors to which I have referred in [87] are sufficient answer this argument. I would, however, add the following. 91 Y's threat was to cause "information" to be published. An interlocutory injunction directed to publication, simpliciter, was appropriate so as to avert the uncertainty implicit in an order which makes reference to a motive or the effect of publication. 92 Mr McClintock SC, who together with Mr Studdy appeared for W, submitted that in the light of the threat made by Y, there was a real possibility that the appellants might release the threatened material "bit by bit", that is, sporadically or intermittently. This would enable the appellants to say to W (and, indirectly, to X): "You have seen what I am capable of doing; unless you do what I ask, we will release more unspecified information". That being so, Mr McClintock submitted, it was simply not possible for W to specify the terms of the injunction with any precision. This argument is cogent, particularly in the light of the fact that W does not know with any certainty what it is that the appellants are threatening to publish. 93 Moreover, it is not without significance that the interlocutory injunction made by Brereton J was subject to "further order". As Spigelman CJ noted in Bankstown City Council v Alamdo Holdings Pty Limited at 332 [102], "[t]he need for precision is considerably less in the context of interlocutory relief, where the order is of limited duration and is always subject to amendment upon application." It was open to the appellants to apply for a variation of the orders by revealing precisely what they had been told by A and seeking that the interlocutory injunction be limited to the disclosure of that information. The appellants did not so proceed. 94 I would not uphold Mr Hutley's third argument on this issue. 95 Order 1.3 restrains the appellants from: "Communicating to [W], directly or indirectly, any threat to make any publication or disclosure referred to in orders 1.1 and 1.2, and/or any request or demand for payment or other benefit in return for not making any such publication or disclosure."

In the light of the opinions that I have expressed, I consider that the expression "orders 1.1 and 1.2" should be deleted and replaced with "order 1.1". 96 The language of order 1.1 is based on the traditional formulation of injunctive relief against the threat of defamatory publication. It may be that his Honour had in mind the wording of order 1.2 as appropriate relief in regard to the contempt cause of action. In my opinion, however, in the particular circumstances of this case, the wording of order 1.1 also provides appropriate relief on the contempt ground. 97 Having come to these conclusions, I see no point in examining the issues raised in connection with whether the injunction was justified on the defamation ground. 98 The orders challenged were orders 1.1, 1.2 and 1.3. I have held that, on the contempt ground, order 1.2 was too wide and the reference to that order in order 1.3 should be deleted. I have held that his Honour was correct in making orders 1.1(a), (b) and (c) as well as order 1.3 (subject to the deletion of the reference to order 1.2). Nothing in the defamation ground would justify an order in the width of order 1.2. Accordingly, irrespective of what I might decide in relation to the defamation ground, I would arrive at no different conclusion in relation to the result of this appeal. Moreover, I reiterate that we were advised by both parties that there is a great deal of further evidence in the case which will require argument on both sides to determine, without a final judgment having been given in the matter, whether interlocutory injunctive relief should continue to operate and, if so, in what form. In these circumstances, I see no point in further deliberating on the issues that have been raised. 99 Accordingly, I would partially uphold the appeal. I would set aside order 1.2 and vary order 1.3 by deleting the words "and 1.2". Otherwise, I would dismiss the appeal. 100 It is common ground that the matter should be remitted to a single judge for further hearing as to whether, having regard to new affidavit evidence that has been filed (and which was not read in this appeal), interlocutory restraining orders should continue to be of force and, if so, in what terms. 101 These reasons should be kept confidential to the parties and their legal advisors until further order. Submissions as to whether an order should be made permanently restricting their publication should be the subject of written submissions. 102 Throughout the argument on appeal, W persisted in maintaining that order 1.2 should stand. Just as it was open to the appellants, at any time prior to the hearing of the appeal, to apply for a variation of the orders made by Brereton J, so was it open to W to make such an application or even to abandon order 1.2. The appellants were obliged to prosecute the appeal in order to have order 1.2 set aside. In the circumstances, I would order that W pay the appellants' costs of the appeal. 103 In summary, I propose the following orders:

(e) W is to pay the appellants' costs of the appeal.

(f) The matter is remitted to the Equity Division for further hearing as to whether, having regard to the new evidence that has been filed, interlocutory restraining orders should continue to be of force and, if so, in what terms.

(g) Orders (b) and (c) are suspended for 28 days from the delivery of this judgment to enable the hearing contemplated by order (f) to take place and appropriate orders to be made. **********

04/12/2007 - Para [103) order (g): reference to "order (g)" replaced with "order (f)". - Paragraph(s) Para [103]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Industrial Relations Act 1988(Cth)

(2004) 135 LGERA 312

At a glance

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Judgment (34 paragraphs)

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Cases Cited (18)

Cited By (10)