6.1 In theory, the sub judice rule applies equally to prevent prejudice to civil proceedings as it does to prevent prejudice to criminal proceedings. In practice, however, it has a very limited operation in restricting publication of material concerning civil proceedings.

6.2 Civil proceedings are usually determined by a judge, or magistrate, without a jury. As noted in Chapter 4, the courts now generally assume that judicial officers, including magistrates and coroners, will not be adversely influenced or affected by publicity about a case, because they have experience and training in making decisions on the evidence presented in court. This means that a publication will not usually be considered to have a tendency to prejudice the administration of justice in cases heard by a judicial officer alone, if the only basis for possible prejudice is the potential for influencing the judicial officer.¹ For this reason, most prosecutions for contempt under the sub judice rule arise from publications about criminal cases, in which a jury is sitting, or is likely to be sitting. Publications concerning civil cases, as well as publications concerning summary hearings by a magistrate, appellate proceedings, and coronial inquests, are far less likely to attract liability for contempt.

6.3 In addition, civil proceedings generally tend to attract less media publicity than do criminal proceedings, because the subject matter of civil proceedings is generally less dramatic or sensational. Arguably, therefore, the sub judice rule has less practical importance in restricting publications relating to civil proceedings.

6.4 Publications relating to civil proceedings are not, however, completely immune from prosecution for sub judice contempt. As noted in Chapter 4, there are grounds for finding that a publication has a tendency to prejudice proceedings, other than by reason of its possible influence on a jury. It may be considered to have the potential to prejudice a witness, or to place pressure on a party to litigation to discontinue or compromise that party’s action or defence. Both the possibility of prejudice to a witness, and pressure on a party, mean that the sub judice rule may, at least in theory, operate to restrict publication of material in civil proceedings.

6.5 In addition, a publication relating to civil proceedings may amount to contempt on the basis that it prejudges the issues at stake in particular proceedings. This aspect of contempt law is commonly referred to as the “prejudgment principle”. The prejudgment principle is part of the sub judice rule, but does not rely on the traditional formulation of a tendency (or substantial risk) to cause prejudice to proceedings. It is concerned with ensuring that media publicity does not compromise the general administration of justice, rather than the administration of justice in a particular case, by usurping the courts’ role and undermining public confidence in the court system. The operation of the prejudgment principle in Australia is unclear.

6.6 It has been submitted that the sub judice rule should not apply at all to restrict the publication of material relating to civil proceedings.² In this chapter, the Commission considers this proposition. This chapter also review the grounds on which liability for contempt may be based for publications relating to civil proceedings, and discusses whether these grounds provide sufficient reason for retaining the sub judice rule to restrict publications concerning civil proceedings.

EFFECT OF PUBLICITY ON JUDICIAL OFFICERS AND WITNESSES

6.7 In Chapter 4, the Commission noted that liability for sub judice contempt may be imposed, at least in theory, on the basis of possible influence on a witness or on a judicial officer. The justifications for imposing liability in this context are discussed in that chapter.

6.8 The Commission reached the tentative view that there was sufficient ground for concern about the effects of media publicity on a witness to justify imposing sub judice restrictions to protect against a substantial risk of such influence. This conclusion applies to witnesses in both criminal and civil proceedings. Proposal 3, which sets out a reformulation of the basic test for liability for sub judice contempt, refers to witnesses in “legal proceedings” as a basis for imposing liability. Following that reformulation, the law would continue to impose liability for a publication relating to civil proceedings on the basis of potential influence on a witness (or potential witness).

6.9 While the Commission’s proposed formulation of the test for liability refers to influence on a witness as a possible ground of liability, it may be that the courts would generally be reluctant to find a substantial risk of prejudice in the context of a publication that is said potentially to influence a witness in civil proceedings.³ There may, however, be extreme cases where the court considers there is a substantial risk of prejudice. For this reason, the Commission proposes retaining as a possible ground of liability influence on a witness in both civil and criminal proceedings.

6.10 The Commission reached the tentative conclusion in Chapter 4 that the law should not impose liability for sub judice contempt on the basis of possible influence on a judicial officer. This view accords with the current common law trend. Proposal 3 includes influence on jurors and witnesses as grounds for imposing liability. Following this formulation of the basic test, liability could not be imposed for a publication on the basis of influence on a judicial officer. This applies equally to publications relating to civil proceedings as to publications relating to criminal proceedings.

6.11 The Commission noted in paragraphs 4.53-4.55 of Chapter 4 that liability may be imposed for a publication relating to civil proceedings, not because of possible influence on a judicial officer, but because the publication may “embarrass” the judicial officer. The Commission makes no proposal to modify the common law in this area, but calls instead for submissions on whether modification is necessary or desirable.

EFFECT OF PUBLICITY ON CIVIL JURIES

6.12 In principle, it may be assumed that juries in civil trials are as susceptible to influence by media publicity as are juries in criminal trials, and should therefore be protected from the possibility of such influence.

6.13 In practice, the role of the jury in civil proceedings is far more limited than in criminal proceedings. In general, most civil proceedings in the Supreme and District Courts are heard by judge alone.⁴ The courts do have the power to order trial by jury,⁵ but this is not the usual practice. In the Supreme Court, a party to civil proceedings relating to a common law claim⁶ may request that issues of fact in the proceedings be tried by a jury.⁷ In the District Court, a party may request a trial by jury if the proceedings relate to a claim exceeding $5,000.⁸ The District Court also has the power to order trial by jury for civil proceedings arising from a motor vehicle accident.⁹ In addition, proceedings in the Supreme Court in which there are issues of fact on a charge of fraud, or on a claim for malicious prosecution, false imprisonment, seduction, or breach of promise of marriage, or for defamation, must be heard by a jury. In practice, the most common of these are defamation proceedings.¹⁰ Since 1994, however, the role of the jury in defamation proceedings has been greatly restricted.¹¹ Juries in defamation proceedings now do not decide issues about the truth of the imputation in question, or its fairness as a comment, or other similar matters on which they may be swayed by publicity that is prejudicial to either party.

6.14 Given the limited role now played by juries in civil proceedings, it may be questioned whether there is sufficient justification for retaining the sub judice rule for publications relating to civil proceedings, if the main basis for such restrictions is the danger of influence on a jury. That is, can the infringement on freedom of discussion by a general ban on publications creating a tendency or risk of prejudice be justified in this context, given the small number of cases in which a jury may be exposed to prejudicial information, and the arguably little practical significance that any such media influence may have?

6.15 The Australian Law Reform Commission (“ALRC”) noted the limited role of the jury in civil proceedings. It did not, however, suggest total abolition of the sub judice restrictions on publications relating to civil proceedings, but did recommend more limited restrictions than may arise under the general tendency formulation at common law.¹² It recommended that liability for contempt in respect of publications relating to civil proceedings arise only where a jury was sitting, and only where a publication implies that:

• a party or witness is or is not credible;
• evidence does or does not have probative value;
• a party has a good or bad character; or
• a certain outcome is likely or proper.

6.16 However, in recommending the retention of the sub judice restrictions in relation to civil proceedings, the ALRC observed that juries were used extensively in defamation and personal injury proceedings. Since the release of the ALRC’s report, the role of juries has been significantly reduced in civil proceedings, including defamation proceedings, in New South Wales, as noted in paragraph 6.13 above.

6.17 It can argued that, whether or not juries are used infrequently in civil proceedings, there may still be significant interference with the administration of justice in a particular case as a result of the influence of media publicity on a jury. On the other hand, because of the differing operation of rules of evidence, the potential for influence on a jury in a civil case is arguably far less than that in a criminal case. In civil proceedings, the rules of evidence are generally not as stringent in excluding evidence where its prejudicial effect is considered to outweigh its probative value, and there is therefore less danger that a jury will be made aware of information through the media which has been kept from them by the court. Furthermore, in a civil trial, unlike most criminal trials receiving media attention, a person’s liberty is not in question. There is therefore more room to compromise between the competing public interests in a fair trial and freedom of discussion.

The Commission’s tentative view

6.18 Weighing up the opposing arguments, the Commission is presently inclined towards the view that the sub judice rule should apply equally to prevent publications that prejudice civil proceedings as it does to prevent prejudice to criminal proceedings. For reasons set out in Chapter 7 at paragraph 7.47, the Commission is, however, inclined to exclude defamation proceedings from application of the sub judice rule. Proposal 3, in Chapter 4 and Proposal 13, in Chapter 7, reflect the Commission’s tentative conclusion.

EFFECT OF PUBLICITY ON PARTIES

6.19 A publication may constitute contempt if it tends to impose improper pressure on a party to proceedings as to the conduct of those proceedings. For example, a publication may have a tendency to pressure a party to discontinue or settle proceedings.¹³ The basis for restricting the publication of material in this context is concern that the individual party, as well as litigants and potential litigants generally, will be discouraged from seeking access to the courts for vindication of their legal rights, and in this way the due administration of justice will be impeded.

6.20 The parameters within which a publication may comment on, or criticise, a party without constituting a contempt are somewhat uncertain.¹⁴ Judges have adopted various approaches to defining these parameters, with the result that it is difficult to distil any clear majority view as to the material that it is permissible to publish without attracting liability for contempt.

6.21 In the United Kingdom, three different approaches for defining the parameters for permissible comment were suggested by the House of Lords in Attorney General v Times Newspapers Ltd.¹⁵ According to the first approach, a publication will only amount to sub judice contempt by reason of improper pressure on a party if it has a tendency to impose such pressure, and it contains injurious misrepresentations and intemperate criticism.¹⁶ Following this approach, the media would be free to publish material without attracting liability for contempt, provided the publication did not contain misrepresentations and was not “intemperate”, even if it could be shown to have a tendency to subject a party to pressure. According to the second approach, a publication will amount to a contempt if it subjects a party to “public obloquy” or abuse for exercising that party’s legal rights.¹⁷ This approach does not appear to place much emphasis on whether the publication has a tendency to affect the party’s conduct or not. Following this approach, any publication would amount to a contempt if it could be said to hold a party up to public abuse, whether or not it was an accurate representation of the facts and contained reasoned and temperate discussion. The third approach is similar to the second approach, but includes within liability for contempt pressure by a private individual (that is, pressure other than by publication), unless that pressure can be justified.¹⁸

6.22 In Commercial Bank of Australia Ltd v Preston and Another,¹⁹ the court adopted the approach put forward by Lord Reid in Attorney General v Times Newspapers Ltd. Justice Hunt held that a publication will only amount to a contempt by reason of pressure on a party if it: first, has a tendency to influence a party; and secondly, contains misrepresentations of the facts and/or consists of intemperate opinion or discussion.²⁰ The exception to this principle would be if the publisher actually intended to influence a party in the conduct of proceedings. Where actual intention can be shown, liability for contempt would arise whether or not the publication was accurate and/or temperate.

6.23 In Harkianakis v Skalkos,²¹ the Court of Appeal did not follow the principles set down by Justice Hunt in Commercial Bank of Australia Ltd v Preston. Justice Mason found that a problem with Lord Reid’s test, adopted by Justice Hunt, was that reference to misstatement of the facts meant that a publication may be contemptuous simply by reference to its lack of complete accuracy, as a function of its truth value. Yet a party is just as likely to feel the deterrent effects of publicity regardless of the truth or falsity of the issues in question.²²

6.24 Justice Mason considered all three approaches suggested by the House of Lords in the Times Newspapers case, but decided that “the tests [for distinguishing when criticisms of a litigant does not constitute contempt were] not consonant and, in any event, [were] not without their difficulties. Indeed they all appear to be at odds with the balancing approach recognised in Australian law as represented by the Bread Manufacturers’ case”.²³ He adopted as the test of when pressure on a party may be a contempt the words of Deane J in Hinch v Attorney General that the publication have a tendency “to disparage or vilify a party … because he is a litigant … or because of the litigation or allegations made in it”.²⁴ Justice Beazley concurred in this aspect of the court’s decision. The court also held that intent to deter the litigant from initiating, continuing or discontinuing litigation must be shown;²⁵ otherwise, the court must be satisfied beyond reasonable doubt that the publication has, as a matter of practical reality, the impugned tendency to deter.²⁶

6.25 As Justice Mason himself pointed out,²⁷ “the ascertainment and application of the principles to be applied with respect to contempt by improper pressure on a litigant party” is a difficult area and one which still does not have clarity. Although both Justice Mason²⁸ and Justice Powell²⁹ invoked the distinction between “proper” and “improper” pressure, little guidance is given as to the limits of what is “proper” pressure for the purpose of assessing the tendency of the publication to cause prejudice. Justice Mason refers to the means the court in Meissner v The Queen³⁰ identified as being improper, including the application of force, intimidation and financial inducement motivated by the private concerns of the payer. Justice Mason also points out that in Meissner v The Queen (in obiter) it was recognised that even certain types of persuasion could cross the line between proper and improper. As well, the mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper.³¹

6.26 Justice Mason explained that the reason the law is concerned to distinguish between proper and improper pressure is because the litigant’s freedom to conduct litigation as he or she chooses is not an absolute one. The public interests in free speech and the proper administration of justice need to be balanced.³² In reconciling these competing interests, the court “must consider the entire content of the broadcasts and ask itself whether their prejudicial effect outweighs the public interest they seek to serve.”³³ In this regard, Harkianakis v Skalkos could be relied on for recommending that no change to the common law be made, it being best to judge in each particular case whether pressure on a party has been proper or improper.

6.27 There is one other possible point of uncertainty in this area of the law of sub judice contempt. It has been questioned whether the tendency of the publication should be measured against the capacity to withstand pressure of the particular litigant involved, or whether against some hypothetical litigant of “ordinary” fortitude. This issue has not been resolved, although Justice Mason has expressed a preference for the latter approach.³⁴

6.28 In New Zealand, the issue of publications exerting pressure on parties in civil proceedings was considered by a single judge of the High Court.³⁵ It was held that a publication would amount to a contempt if it went beyond fair and temperate comment and could be seen to have a real likelihood of inhibiting a litigant of average robustness from availing itself of the right to have the case determined by a court, or if it was intended to have such an effect. It was noted that the process of determining what is fair and temperate comment involves a balancing of a number of factors, including whether there is any legitimate public interest in the comment being made. The court also appeared to take the view that the prejudicial effect of a publication should be measured according to a hypothetical litigant of ordinary fortitude, rather than according to the particular characteristics of the litigant concerned.

6.29 The ALRC took the approach that there should be no liability for sub judice contempt if the only basis for liability was possible pressure on a party, unless actual intention to impose pressure could be proven.³⁶

The Commission’s tentative view

6.30 At this stage, the Commission is inclined to the view that the law should provide some protection against pressure by a publication on parties in civil proceedings to compromise the manner in which they conduct those proceedings. The Commission is uncertain, however, as to how liability for contempt should be imposed in this situation, and what should be the limits of liability.

6.31 One option is to adopt an approach similar to that of the ALRC. That is, the law could impose liability for contempt if a publisher could be shown to have intended to impose pressure on a party to withdraw from litigation or have intended to vilify a person or organisation in their capacity as a party to proceedings. Liability could be made subject to the public interest principle, that is, a publisher may escape liability in this situation if its publication related to a matter of public interest.

6.32 A second option is to adopt a formulation similar to that put forward in the New Zealand decision of Duff v Communicado Ltd,³⁷ outlined in paragraph 6.28 above. The law could impose liability for contempt for a publication that goes beyond fair and temperate comment and has a real likelihood of inhibiting a litigant from asserting its right to have its case determined by a court. Liability could also be imposed for a publication that was intended to have such an effect. Again, a finding of liability could be made subject to the public interest principle. The likely effect of a publication could be measured according to the “reasonable” litigant, or a litigant of “reasonable” fortitude.

6.33 A third option is to follow Justice Mason’s approach and impose liability when a publication is found to have a substantial risk of imposing improper pressure on a party in civil proceedings as to the conduct of those proceedings. Consideration could be given to attempting to define in legislation, or at least give some guidance on the meaning of, “improper” pressure.

6.34 Legislation could impose liability according to one of the three options above. Alternatively, the common law could remain unmodified by statute and allowed to develop on a case by case basis.

6.35 At this stage, the Commission makes no proposal in relation to publications that exert pressure on parties in civil proceedings. Instead, submissions are invited on:

• first, whether it is desirable to impose liability for sub judice contempt in this situation;
• secondly, whether it is desirable to clarify and/or modify the common law on this aspect by statute; and
• thirdly, which is the preferable approach for imposing liability.

THE PREJUDGMENT PRINCIPLE

Overview

6.37 It is possible that media publications will attract liability for contempt if they prejudge issues that are at stake in a case currently before a court. For example, a newspaper article may amount to a contempt if it claims that a drug company has been negligent in selling an unsafe drug while there are proceedings pending before a court for an action in negligence against that company.³⁹

6.38 The prejudgment principle is generally regarded as an aspect of the sub judice rule. However, in contrast with the general principles of liability for sub judice contempt, the prejudgment principle is not concerned with the potential influence of a publication on the court hearing the case in question. It seems that the principle may be applied to find guilt for contempt even though the publication does not have a tendency to influence participants in the proceedings. Instead of aiming to prevent prejudice in a particular case, the prejudgment principle has a more general goal of preventing the media from usurping the role of the courts, undermining public confidence in the court system, and deterring future litigants, by engaging in a “trial by media”. As one judge expressed it:

Responsible “mass media” will do their best to be fair, but there will also be ill-informed, slapdash or prejudiced attempts to influence the public. If people are led to think that it is easy to find the truth, disrespect for the processes of the law could follow, and, if mass media are allowed to judge, unpopular people and unpopular causes will fare very badly.⁴⁰

6.40 The restrictions imposed by the prejudgment principle may have particular importance to investigative journalism, and even, perhaps, academic and scientific publications on matters which are the subject of civil proceedings. Yet it is uncertain how far the prejudgment principle operates in Australia or, indeed, whether it operates in this country at all.

The operation of the principle in the United Kingdom: the Sunday Times case

6.41 The leading case on the prejudgment principle comes from the United Kingdom, and is commonly referred to as the Sunday Times case.⁴¹ In that case, the House of Lords granted an injunction to restrain the publication of a newspaper article. The article related to civil proceedings for negligence brought against a drug company by parents of children who had suffered physical deformities which they claimed were caused by a drug containing thalidomide. The drug was manufactured and marketed by the defendant company. The newspaper article discussed the civil proceedings and suggested that the drug company should offer much more money to the thalidomide victims than they had done in order to settle the claim. The House of Lords granted the injunction to restrain the publication of the article, on the basis that the article in effect charged the company with negligence and therefore prejudged the issues to be decided in the civil proceedings.

6.42 The newspaper subsequently brought a claim before the European Court of Human Rights against the decision of the House of Lords.⁴² The newspaper claimed that the decision violated Article 10 of the European Convention on Human Rights, to which the United Kingdom was a signatory. Article 10 provides that everyone has the right to freedom of expression, which includes the right to impart information and ideas without interference by public authority. That right might be restricted if necessary in a democratic society for, among other things, maintaining the authority and impartiality of the judiciary.

6.43 The European Court of Human Rights upheld the newspaper’s claim. The court considered that the thalidomide controversy was a matter of public concern which was not outweighed by any need on the facts to maintain the authority of the judiciary. It took the view that a court cannot operate in a vacuum and that, consequently, there could not be a complete ban on prior discussion of disputes outside the courts.

6.44 The courts in the United Kingdom have not applied the prejudgment principle since the Sunday Times case.⁴³ Legislation was introduced to reverse the House of Lords’ decision in the Sunday Times case,⁴⁴ although it is not clear whether it succeeded in abolishing the operation of the prejudgment principle.⁴⁵

The operation of the principle in Australia

6.45 The attitude of the Australian courts towards the Sunday Times case is unclear. Several Australian judges have referred with approval to the prejudgment principle as articulated by the House of Lords.⁴⁶ Other judges have expressed doubt that the principle does or should apply to restrict publications under Australian law.⁴⁷

6.46 In Civil Aviation Authority v ABC, Justice Kirby was critical of the prejudgment principle.⁴⁸ He suggested that it could be in breach of Australia’s international obligations to respect the right of freedom of expression⁴⁹ and may be inappropriate in light of our implied constitutional right to freedom of political discussion. Justice Kirby doubted whether the prejudgment principle is essential to the protection of the capacity of courts effectively to discharge their functions.

6.47 There has not been a case in Australia in which liability for contempt has been established based on the prejudgment principle, as articulated by the House of Lords.

Other jurisdictions

6.48 In New Zealand, the operation of the prejudgment principle appears as unclear as does its operation in Australia. In the past, New Zealand courts have referred to the principle, as articulated by the House of Lords in the Sunday Times case, as forming part of the common law of New Zealand.⁵⁰ However, in one recent case,⁵¹ a single judge of the New Zealand High Court questioned whether the prejudgment principle formed part of the law of New Zealand, given its treatment in the United Kingdom since the Sunday Times case, and in light of the provisions of the New Zealand Bill of Rights Act 1990⁵² for the protection of freedom of expression. The judge did not, however, consider it necessary to make a final determination about the operation of the principle, based on the facts of the particular case with which he was concerned. In a subsequent case,⁵³ however, another single judge of the New Zealand High Court referred to the prejudgment principle as forming part of the law of New Zealand.

6.49 In Ireland, the Sunday Times decision has not, so far, been followed by the courts. In State (DPP) v Walsh Henchy J observed that there was a presumption that the Irish law of contempt is in conformity with the European Convention on Fundamental Rights and Freedoms, particularly Articles 5 and 10(2).⁵⁴ Given that in Sunday Times v United Kingdom⁵⁵ the European Court of Human Rights found that decision in the Sunday Times case was in breach of Article 10, the clear indication is that the Irish courts reject the operation of the prejudgment principle.

Recommendations of law reform bodies

6.50 The ALRC, the Phillimore Committee in the United Kingdom, and the Irish Law Reform Commission have all considered the prejudgment principle. Ultimately, none recommended that the principle should form part of the law of contempt, although for different reasons.

6.51 The Phillimore Committee⁵⁶ observed that real dangers may arise from publications which engage in “trial by media”. However, the committee concluded that it was not possible to devise a satisfactory formulation of the prejudgment principle, and recommended against its inclusion in the law of sub judice contempt.

6.52 The ALRC took the view⁵⁷ that it was unjustifiable to restrict the publication of information on the basis only that it prejudged issues in proceedings. The concern on which the prejudgment principle was based, namely that public confidence in the legal system would be undermined, was arguably speculative and therefore not established with a sufficient degree of certainty to warrant general restrictions on freedom of publication. Furthermore, the principle had attracted criticism in other jurisdictions, and was likely to be incompatible with international covenants protecting the right to freedom of expression.

6.53 The Irish Law Reform Commission initially proposed that liability for contempt should extend to publications which are likely to cause serious injury to the administration of justice in general. This was, in effect, a form of the prejudgment principle, although it was arguably more restricted in its scope than the formulation put forward in the Sunday Times case, since it required a higher degree of likelihood of injury. In the end, however, the Irish Law Reform Commission retreated from this position, and recommended that the prejudgment principle in any form should not form part of Irish law on contempt.

The Commission’s tentative view

6.54 The Commission is, like others, concerned that application of the prejudgment principle in contempt law unacceptably infringes on freedom of expression. The difficulty arises in curtailing “free public discussion of topics of general concern”⁵⁸ where no potential for actual damage to a particular case can be identified. Furthermore, the operation of a prejudgment principle in some form involves difficulties in definition and possible wide scope of liability. For example, depending on how the principle is defined, it may apply to dissertation in academic or scientific journals about matters which are the subject of litigation. The joint judgment of the majority of the European Court of Human Rights in Sunday Times v United Kingdom encapsulates the Commission’s present view regarding this issue:

Whilst … [the courts] are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it in specialised journals, in the general press or amongst the public at large. Furthermore, whilst the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them.⁵⁹

PROPOSAL 10

Legislation should make it clear that liability for sub judice contempt cannot be founded simply on the basis that a publication prejudges issues at stake in proceedings.

1. See, for example, Civil Aviation Authority v Australian Broadcasting Corp (1995) 39 NSWLR 540; Waterhouse v Australian Broadcasting Corp (1986) NSWLR 733; Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25; cf X v Amalgamated TV Service (No 2) (1987) 9 NSWLR 575 at 590 (Kirby J); Attorney General (SA) v Nationwide News Pty Ltd (1986) 43 SASR 374 at 379 (Jacobs J).

2. Australian Broadcasting Corporation, Submission at 1.

3. See See Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 59 (Gibbs CJ), at 103 (Mason J), at 131-132 (Wilson J), at 119 (Aickin J agreeing), at 75 (Stephen J dissenting on this point), at 176-177 (Brennan J dissenting on this point, though not expressly considering the issue of possible influence on witnesses), Murphy J did not consider this issue: see also para 4.34-4.35.

4. See Supreme Court Act 1970 (NSW) s 85; District Court Act 1973 (NSW) s 77-78.

5. Supreme Court Act 1970 (NSW) s 85(1); District Court Act 1973 (NSW) s 77(3).

6. A common law claim is a claim for damages or other money, or for possession of land, or for detention of goods, in proceedings in the Common Law Division of the Supreme Court: see Supreme Court Act 1970 (NSW) s 19(1).

7. Supreme Court Act 1970 (NSW) s 86.

8. District Court Act 1973 (NSW) s 78(1).

9. Supreme Court Act 1970 (NSW) s 87; District Court Act 1973 (NSW) s 79.

10. Supreme Court Act 1970 (NSW) s 88.

11. See Defamation Act 1974 (NSW) s 7A, inserted by the Defamation (Amendment) Act 1994 (NSW) Sch 1[2] and the explanation of the effect of this section at para 7.47.

12. Australian Law Reform Commission, Contempt (Report 35, 1987) at para 338.

13. See Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Harkianakis v Skalkos (1997) 42 NSWLR 22; Attorney General v Times Newspapers Ltd [1973] QB 710; Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316. See also A Riseley, Improper Pressure on Parties to Court Proceedings (Australian Law Reform Commission, Reference on Contempt of Courts, Tribunals and Commissions, Research Paper 3, 1986).

14. See S Walker, The Law of Journalism in Australia (Law Book Company, Sydney, 1989) at para 1.3.25; A Riseley, Improper Pressure on Parties to Court Proceedings (Australian Law Reform Commission, Reference on Contempt of Courts, Tribunals and Commissions, Research Paper 3, 1986) ch 3; Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27 (Kirby J).

15. Attorney General v Times Newspapers Ltd [1974] AC 273.

16. Attorney General v Times Newspapers Ltd [1974] AC 273 at 295-299 (Lord Reid), at 326 (Lord Cross), at 305-307 (Lord Morris).

17. Attorney General v Times Newspapers Ltd [1974] AC 273 at 313 (Lord Diplock).

18. Attorney General v Times Newspapers Ltd [1974] AC 273 at 318-319 (Lord Simon).

19. Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554.

20. See Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 at 561 (Hunt J).

21. Harkianakis v Skalkos (1997) 42 NSWLR 22.

22. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 36 (Mason J).

23. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 34 (Mason J).

24. Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 54-55; see also Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316.

25. See also Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316. In that case, there was an express finding of intent to deter.

26. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 42 (Mason J).

27. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27 (Mason J).

28. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 32 (Mason J).

29. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 63 (Powell J).

30. Meissner v The Queen (1995) 184 CLR 132 at 142-143, 158-159.

31. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 30 (Mason J). See also Attorney General v TCN Channel Nine Pty Ltd (1990) 5 BR 10 (Hunt J), especially at 29: “Of course, numerous repetitions in the media of the nature of the evidence available against a party to pending proceedings could well amount to [improper] pressure.”

32. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 37 (Mason J).

33. Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 76 (Toohey J), adopted by Justice Mason in Harkianakis v Skalkos (1997) 42 NSWLR 22 at 38 (Mason J).

34. Harkianakis v Skalkos (1997) 42 NSWLR 22 at 29 (Mason J).

35. Duff v Communicado Ltd [1996] 2 NZLR 89 (Blanchard J).

36. See Australian Law Reform Commission, Contempt (Report 35, 1987) at para 399.

37. Duff v Communicado Ltd [1996] 2 NZLR 89 (Blanchard J).

38. Crimes Act 1900 (NSW) s 319.

39. See Attorney General v Times Newspaper Ltd [1974] AC 273.

40. Attorney General v Times Newspaper Ltd [1974] AC 273 at 300 (Lord Reid).

41. Attorney General v Times Newspaper Ltd [1974] AC 273.

42. See Sunday Times v UK (1979) 2 EHRR 245.

43. See Blackburn v BBC (1976) Times, 15 December; Schering Chemicals Ltd v Falkman Ltd [1982] 1 QB 1; Re Lonrho Plc [1990] 2 AC 154.

44. See Contempt of Court Act 1981 (UK) s 2(2), which provides that, in the absence of an intention to prejudice the administration of justice, liability for sub judice contempt will only arise where there is a substantial risk of serious prejudice.

45. The Contempt of Court Act 1981 (UK) does not expressly abolish the prejudgment principle. Furthermore, s 2 of the Act applies only to publications which interfere with “particular legal proceedings”. It may be argued that the prejudgment principle aims to prevent interference with the administration of justice as a whole, rather than interference with particular proceedings, and therefore the common law relating to this aspect of contempt law survives the introduction of the legislation. See Attorney General v English [1983] 1 AC 116 at 143 (Lord Diplock); A M Tettenborn, “The Contempt of Court Bill: Some Problems” (1981) 125 Solicitors Journal 123. But see the argument that the legislation should be interpreted as abolishing the prejudgment principle in G Borrie, Borrie and Lowe’s The Law of Contempt (3rd edition, Butterworths, London, 1996) 117-121. See also Re Lonrho Plc [1990] 2 AC 154.

46. See Watts v Hawke & David Syme & Co Ltd [1976] VR 707; Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 167-168 (Brennan J); Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 54-55 (Deane J); National Mutual Life Association of Australasia Ltd v General Television Corporation Pty Ltd (1988) 62 ALJR 553 at 555-556 (Toohey J).

47. See Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 96 (Mason J); Civil Aviation Authority v Australian Broadcasting Corp (1995) 39 NSWLR 540 at 553-560 (Kirby J).

48. (1995) 39 NSWLR 540 at 554-562.

49. International Covenant on Civil and Political Rights, Art 19: “Although such obligations are not binding on this Court as part of the law of Australia, the Convention not having been incorporated into domestic law, they should certainly be considered when determining the state of the common law when it is necessary to resolve an uncertainty”: Civil Aviation Authority v Australian Broadcasting Corp (1995) 39 NSWLR 540 at 558 (Kirby J).

50. See, for example, Knapp Roberson and Associates v Roberson (1987) 6 NZLR 493; R v Chignell (1990) 6 CRNZ 476.

51. Greenpeace New Zealand Inc v Minister of Fisheries [1995] 2 NZLR 463 (Doogue J).

52. Bill of Rights Act 1990 (NZ) s 14, 15.

53. Pharmac v Researched Medicines Industry [1996] 1 NZLR 472 (McGechan J).

54. [1981] IR 412 at 440 (Henchy J).

55. [1979] 2 EHRR 245.

56. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (HMSO, London, Cmnd 5794, 1974) at para 106-111.

57. Australian Law Reform Commission, Contempt (Report 35, 1987) ch 9.

58. Schering Chemicals Ltd v Falkman Ltd [1982] 1 QB 1 at 30 (Lord Shaw).