Lawlink NSW: 13. Penalties and remedies

13.1 This chapter is principally concerned with sanctions that may be imposed after a person is convicted of contempt of court. The main penalties for contempt of court are fines and imprisonment. There are currently no upper limits for these penalties. This Report considers whether or not there should be. The chapter also discusses the remedies of injunction and damages as they relate to contempt.

13.2 As with the previous chapter, the recommendations in this chapter are written in a manner that would cover not only sub judice contempt but criminal contempts more generally. Where a recommendation on procedure and sanctions may apply to other forms of criminal contempt, the Commission has decided to extend them to criminal contempts generally. This will avert the undesirable outcome of having special rules for sub judice contempt, where such special treatment is not warranted and may lead to confusion.

13.3 A fine is the usual penalty that courts impose in sub judice contempt cases. The court may also impose a sentence of imprisonment in addition to, or instead of, a fine, when the contemnor is not a corporation.¹ The penalty of imprisonment is, however, rarely used in sub judice contempt. It has been observed that a fine is the appropriate penalty for a body corporate that has been found guilty of contempt, such as a media proprietor.² Nevertheless, courts may take into account the fact that the fine imposed upon a corporation in reality punishes the shareholders rather than those responsible for the contempt.³

13.4 Fines have been imposed on newspaper publishers⁴ and editors⁵, radio⁶ and television licensees,⁷ speakers at public meetings,⁸ journalists⁹, radio announcers¹⁰ and media interviewees.¹¹

13.5 The Supreme Court may make an order for the imposition of a fine on terms, including a suspension of such fine.¹²

13.6 The matters which courts may take into account in determining the appropriate fine to be imposed upon a person or organisation found guilty of sub judice contempt include:

The present law: no limit as to the amount of fine that may be imposed
13.7 At common law there is no upper limit on the fine that can be imposed. It has, however, been suggested that this rule is not absolute because the safeguards expressed in the Tenth Article of The Bill of Rights (1688) 1 Will and Mar, Sess 2, c 2 (Eng) against the imposition of cruel or unusual punishment or “excessive fines” operate to limit the court’s powers in relation to the imposition of penalties for contempt.¹⁴

Reform issue
13.8 The main issue with respect to fines as a form of penalty in contempt cases is whether or not there is a need to provide a statutory maximum penalty.

The Commission’s proposal in DP 43
13.9 The Commission took the position in Proposal 27 of DP 43 that there should be a limit on fines that can be imposed.¹⁵ Contempt (sub judice contempt, in particular, where substantial fines are imposed) should be in line with most other offences for which penalties have ceilings. Establishing a maximum amount for the fine that may be imposed ensures certainty for those most likely to have to deal with the principles of sub judice, such as media practitioners, about the possible penalty if such principles are breached.

Feedback from the submissions
13.10 All the submissions that dealt with this issue agree that there should be a limit on the fine that may be imposed on a person convicted of contempt.¹⁶

What should be the maximum amount of fines?
13.11 In DP 43, the Commission did not form a position as to a specific maximum fine but welcomed submissions on this matter. One submission stated that a maximum fine, particularly for a corporation, would need to be substantial having regard to the fact that a fine of $200,000 has been imposed a number of times in New South Wales.¹⁷

13.12 In setting the maximum fine for sub judice contempt, it is important to remember that the primary function of a penalty for sub judice contempt is to deter the accused and others from violating the sub judice rule. To achieve this purpose, the maximum penalty should not be too low as to deprive courts of the flexibility required to impose a fine that is appropriate according to the circumstances. The maximum fine should be sufficient to deter everyone, corporate media entities in particular, from flouting the sub judice rule.

13.13 Trends and examples of fines. It is also useful to look at the fines imposed so far by the courts. In sub judice contempt convictions in New South Wales, the highest fine that a court has imposed so far on a corporate offender has been $200,000.¹⁸ This amount has been imposed in four cases in the last twenty years.¹⁹ The second and third highest fines imposed have been $120,000²⁰ and $100,000,²¹ respectively. Appendix E of this Report sets out the penalties imposed in sub judice cases in New South Wales, as well as other Australian jurisdictions.

13.14 For individual offenders, the highest fine imposed by a New South Wales court has been $50,000.²² The fine of $10,000 has been imposed on a magazine editor.²³ The fine of $2,000 has been imposed in a number of cases on an editor of a TV programme,²⁴ a radio talk back host,²⁵ the author of a newspaper article²⁶ and on a compere of a TV program.²⁷ Journalists have been fined $1,000²⁸ and $2,000.²⁹ A fine of $25,000 was imposed on a person who made a contemptuous statement to the media.³⁰

13.15 In addition to actual fines imposed in cases, the Commission notes that the draft bill dealing with contempt of court prepared by the Federal Government in 1993³¹ set the maximum amount of a fine at 60 penalty units for a natural person and 300 penalty units³² for a body corporate.

13.16 Guidance may also be had from other legislation that imposes fines on bodies corporate. For example, the Trade Practices Act 1974 (Cth) imposes a maximum fine of $200,000 on companies for breaches of most of the provisions of its Part 5 (Consumer Protection),³³ and $750,000 or $10,000,000 for breaches of provisions of Part 4 (Restrictive Trade Practices).

Should there be a distinction between fines for individuals and corporate offenders?
13.17 The trend in sub judice cases in Australia is for fines imposed on bodies corporate to be higher than those on individuals, such as journalists, radio announcers, editors or individuals interviewed by the media.³⁴ This may be because the former are in a superior financial position to the latter. An amount that is sufficient to deter an individual may not have the same effect on a corporate offender, while a fine appropriate to a body corporate may be excessive if imposed on an individual.

13.18 On the other hand, there may be instances when the financial resources of an individual media personality are such that a court may be justified in imposing an amount that is comparable to those imposed on bodies corporate.³⁵ In addition, the Commission notes that as a matter of practicality, fines imposed on individuals who work in the media are generally paid by the media organisations that employ them. In such a situation, the fine, regardless of the amount, may not have a direct impact on the individual offender.³⁶ It is arguable that such an arrangement undermines the desired deterrent effect on the individual offender. Imposing a large fine on the individual in such situation may arguably influence the employer organisation to ensure the maintenance of a system to prevent the commission of the offence by its employees.

13.19 The Commission, based on the support arising from its consultations, implements its recommendation that the law should specify a maximum fine for criminal contempts.

13.20 The maximum amount to be set in legislation should be substantially more than $200,000, the highest amount imposed so far in New South Wales in sub judice cases. This is to allow for courts to deal with more extreme cases than those that have occurred and come before the courts. It should also be taken into account that the recommendation would apply to other forms of criminal contempts, for which the amount of $200,000 could, in the worst cases, not be sufficient.

13.21 The legislation need not make a distinction between the maximum fine that can be imposed on bodies corporate as opposed to that which may be ordered against individual offenders, such as journalists, radio announcers, editors or individuals interviewed by the media. This would allow courts to deal with situations when the financial resources of an individual offender are so substantial that a fine comparable to those imposed on corporate offenders may be justifiable. Moreover, it would give the courts the discretion to set a large fine on individuals, in circumstances where it is the employer organisation who might in the end pay it, to force the latter to take measures to prevent the commission of the offence by its employees. On the other hand, the courts could still, when appropriate, take due account of the fact that individual offenders will normally have less financial resources than corporate offenders.

13.22 Imprisonment has always been available as a sanction in cases of contempt. At common law, the maximum period of imprisonment to be imposed by a superior court is unlimited.³⁷ However, it has been asserted that the unexpressed limits derived from constitutional principles prevent the imposition of an excessive term of imprisonment if this amounts to a cruel and unusual punishment.³⁸

13.23 Although there is no limit on the length of the sentence that could be ordered at common law, the practice in criminal contempt cases is to fix the term of the imprisonment when it is imposed.³⁹

13.24 Recent legislation in New South Wales – s 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – provides for a maximum penalty of 5 years for statutory offences for which no penalty is provided by or under that Act or any other Act. Although a recent New South Wales Supreme Court decision held that the Act applies to criminal contempts,⁴⁰ the specific provision in the Act specifying this maximum seems drafted so as to apply only to statutory offences and may not, therefore, apply to common law offences such as contempt.

13.25 In New South Wales, the Supreme Court has the power to suspend the execution of a sentence of imprisonment imposed for contempt. The Supreme Court Rules 1970 (NSW) Part 55 rule 13(3) allows the court to “make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such terms as the court may approve for good behaviour and performs the terms of the security.”

13.26 The Supreme Court of New South Wales also has the power to discharge a contemnor before the expiry of the term of the imprisonment.⁴¹ The power to discharge will normally be exercised only where there has been some change in the circumstances since the sentence was imposed.⁴² For example, this power may be exercised in civil contempt cases where the contemnor has purged his or her contempt⁴³ or where no good purpose will be served by further detaining the contemnor.⁴⁴

13.27 A decision to imprison a contemnor and the decision as to the duration of the imprisonment should give proper weight to all relevant circumstances, particularly the culpability of the contemnor, the prejudicial effect of the conduct on the administration of justice and the need to deter the contemnor and others from repeating the same conduct.⁴⁵ Where persons other than the contemnor have published the contemptuous material but have not been prosecuted, this may be taken into account.⁴⁶

13.28 While imprisonment is an available sentence in contempt by publication, it is not often invoked.⁴⁷ The Commission is aware of only two Australian cases where imprisonment has been imposed for publications infringing the sub judice rule. One involved a New South Wales case, Registrar, Court of Appeals v Collins,⁴⁸ where the respondent Collins was ordered imprisoned for 2 months. The other is the Hinch case,⁴⁹ which is the only one in which a journalist (Collins was an activist) was imprisoned. In Hinch, an important factor which the trial judge considered was the fact that the contemnor, a radio compere, continued to publish the offending material on two occasions after having been warned not to do so by the Solicitor General. The original term of imprisonment was reduced by the Full Court of the Full Court of the Supreme Court of Victoria Supreme Court of Victoria on appeal from six weeks to 28 days.⁵⁰

13.29 The first issue with respect to the penalty of imprisonment is whether it should continue to be a sentencing option at all in sub judice contempt cases.

13.30 In DP 43, the Commission took the position it should be retained.⁵¹ While it is a harsh penalty when a prejudicial publication is the result of inadvertence or carelessness, imprisonment may be appropriate when the breach of the sub judice principle is deliberate or the result of recklessness on the part of an individual as to the consequences of the publication.⁵² The fact that a fine is often paid by an employer corporation undermines the effectiveness of this form of penalty.

13.32 The second issue with imprisonment is whether or not there should be an upper limit on the term that may be imposed.

13.33 In DP 43, the Commission considered that an upper limit must be established.⁵⁴ The penalty for sub judice contempt should be in line with other criminal offences, for which the courts’ power of sentencing has been in almost every sphere limited to a maximum by legislation.⁵⁵

13.35 In DP 43, the Commission did not make a proposal as to the specific maximum period but sought submissions on this.

13.36 Submissions. Mr David Norris argued that section 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to criminal contempt and the maximum of 5 years set by that section is appropriate for criminal contempt.⁵⁷

13.37 The Law Society of New South Wales, in its written submission, asserted that “in the range of offences in Part 7 of the Crimes Act 1900 (NSW) (which deals with offences against public justice) sub judice contempt would rate a maximum of 7 years.”⁵⁸ The Law Society was perhaps referring to the offence of influencing witnesses or jurors.⁵⁹

13.38 Examples and other possible models. The statutory offence of perverting the course of justice,⁶⁰ which theoretically could apply to a breach of the sub judice principle if there is an intent to pervert the course of justice, carries the penalty of penal servitude for fourteen years.

13.39 This seems excessive to the Commission, especially in contempt cases where the summary procedure is utilised.

13.40 The draft bill prepared by the Federal government in 1993 that was intended to implement the ALRC Contempt Report specified a period of one year as maximum.

13.41 In England, the law sets two years as the maximum custodial period for contempt of court committed in superior courts.⁶¹ Two years was also the recommendation of the Law Reform Commission of Canada.⁶²

13.42 In Canada, England and the United States, the cases indicate that the maximum custodial period for criminal contempts does not normally exceed two years.⁶³ However, in Australia courts in have imposed periods exceeding 2 years,⁶⁴ and even 6 years in one case.⁶⁵ Appendix F of this Report surveys the length of custodial sentences imposed in selected non-sub judice contempt cases in Australia.

13.43 The Commission recommends 5 years as the maximum period for criminal contempt. It should be emphasised that this recommendation is not confined to sub judice cases but would apply to criminal contempts generally. There have been criminal contempts decided in Australia where two years, the maximum imposed in other jurisdictions, would not have been sufficient. The recommended 5 years would enable courts to deal with the worst class of criminal contempt cases. Moreover, it is consistent with the 5 years set by Parliament in s 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for statutory offences for which there is currently no maximum imposed by any other law.

13.44 In addition to, or as alternatives to, the traditional penalties of imprisonment and fine, courts have, in a number of contempt by publication cases, reprimanded the offender,⁶⁶ accepted an apology made to the court,⁶⁷ recorded the conviction⁶⁸ and/or required the offender to pay an amount by way of costs.⁶⁹ In some of these cases, these alternative forms of punishment were deemed sufficient to justify the non-imposition of the formal penalties of fine and/or imprisonment.⁷⁰

13.45 For offences generally, the law provides alternatives to the penalty of imprisonment such as community service orders,⁷¹ good behaviour bonds,⁷² dismissal of charges and conditional discharge of the offender,⁷³ deferral of sentencing for rehabilitation,⁷⁴ and suspended sentences.⁷⁵ The law also provides alternatives to traditional full-time detention in prisons through schemes such as periodic detention⁷⁶ and home detention.⁷⁷ In addition, parole is available to offenders sentenced to prison which allows them to be discharged from custody prior to the expiry of the maximum term of imprisonment, provided that they agree to abide by certain conditions, with the intention that they serve some portion of their sentence under supervision in the community and subject to recall for misconduct.⁷⁸

13.46 One issue for consideration in this reference is whether the sentencing options available in criminal offences generally may be exercised in criminal contempt cases, and if not, whether they should be.

13.47 The Commission, in paragraphs 13.39-13.45 of DP 43, analysed the case law and the relevant legislation on the matter and reached the conclusion that there is uncertainty as to whether or not courts have the power to use alternative sentencing options for persons found guilty of criminal contempt.

13.48 The cases mentioned in DP 43 dealt with different legislation on sentencing because at the time, the various sentencing options were found in a number of statutes. The courts’ decisions varied on the issue of whether or not these sentencing options apply to contempt. For example, the Sentencing Act 1989 (NSW) was construed as having application to contempt,⁷⁹ and consequently parole would be available to a contemnor sentenced to suffer the penalty of imprisonment. On the other hand, it was held the provisions for community service orders in the Community Service Order Act 1979 (NSW) did not apply to contempt.⁸⁰ The various statutes on sentencing have since been consolidated in the Crimes (Sentencing Procedure) Act 1999 (NSW). In a recent decision by the New South Wales Supreme Court, it was held that “where a contemnor is now to be imprisoned for contempt, the Crimes (Sentencing Procedure) Act applies.”⁸¹ The court in that case ordered, among other things, that each sentence of imprisonment it imposed on the contemnor be served by way of periodic detention.⁸²

13.49 The Commission proposed that legislation should expressly provide that the various alternatives to and methods of serving a custodial sentence, including community service orders, good behaviour bonds, dismissal of charges and conditional discharge of the offender, deferral of sentencing, suspended sentences, periodic detention orders, home detention orders and parole, are available in criminal contempt proceedings.

13.50 The aim of these sentencing options is to give flexibility to the sentencing courts to allow them to achieve the purposes of penal sanctions, primarily the rehabilitation of the offender but also deterrence of the commission of crimes not just by the particular offender but by others as well. It also allows courts to spare an offender from the brutalising and oppressive effects of penal institutions. Moreover, these alternative sentencing schemes relieve some pressure on the prisons system.

13.51 The same policy considerations underlying the “alternatives” to imprisonment apply equally to criminal contempt cases. For example, community service may be more appropriate under certain circumstances because it still registers disapproval of the offender’s behaviour without the negative effects of full-time imprisonment. It also allows offenders to compensate the damage that their behaviour might have inflicted on the community without having to give up employment or have their domestic relations severely disrupted.

13.52 Most of those who commented on this issue in the written submissions agree with the proposal.⁸³ Only one submission said that imprisonment and other sentencing options, like community service, should not be imposed in contempt cases.⁸⁴

13.53 Courts have demonstrated flexibility in sentencing persons found guilty of contempt of court.⁸⁵ However, the Commission is of the view that sentencing of criminal contempt should not be left to the common law where the nature and direction of its development is uncertain.

13.54 The Commission notes the recent decision by the New South Wales Supreme Court holding that where a contemnor is to be imprisoned for contempt, the Crimes (Sentencing Procedure) Act 1999 (NSW) applies.⁸⁶ Although the main sentencing option applied in that case was periodic detention, the decision ought to be read liberally so that all the various sentencing options in the Act could apply to criminal contempt cases. Yet, for as long as this Act does not contain express provision making it applicable to criminal contempt cases, there remains the possibility that another court or judge could construe it differently and less liberally. Its predecessor, the Sentencing Act 1989 (NSW), received different interpretations as to its application to contempt cases.⁸⁷

13.55 The Commission considers that legislation is required to expressly empower courts with more options when sentencing persons convicted of criminal contempt. This would remove any uncertainty on the issue. Legislation applying the current sentencing options to contempt would afford those convicted of criminal contempt the same options as those convicted of other crimes. Such legislation would create certainty for the courts, the accused and their advocates about the availability of alternative sentencing options that might be more appropriate than the traditional ones, such as imprisonment. It would establish consistency so that when the courts use their power to hand out these alternative sentences, they will have to abide by the criteria set by Parliament.

13.56 A large number of persons convicted of sub judice contempt are corporations rather than individuals. This means that a fine is the principal penalty available and other sanctions, such as imprisonment and its alternatives, are not available. The desirability of sentencing options for corporate offenders that are alternative to or in addition to the penalty of fine remains an issue. The Commission is currently examining the law on sentencing of corporate offenders. It has published an Issues Paper⁸⁸ for public consultation purposes. In that project, it is looking at the most effective sentencing strategy for corporate offenders, including when, if ever, is it desirable to impose criminal sanctions on corporations, as opposed to civil and/or administrative penalties. More to the point, it is canvassing equity fines, publicity orders, corporate probation, community service orders, disqualification and dissolution, as possible sentencing options.⁸⁹ The Commission will not make any recommendation on this matter in this Report but considers that any proposed law reform on this matter should apply not just to criminal offences generally but also to criminal contempt cases.

13.57 Information about an offender’s record of criminal conviction is regularly used by courts in sentencing. A good record, such as no prior convictions, will invariably be taken into account in the contemnor’s favour,⁹⁰ while a bad record may show that the offence was not aberrant. In one case, the fact that it was the first offence of the media organisation was held to be a mitigating factor.⁹¹ When the same media organisation was convicted a second time, the court noted the number of years that had elapsed since it was first licensed and the thousands of hours of broadcasts it must have made during that time. It considered that two convictions for sub judice contempt during this period constituted a good record, and accordingly took this factor into account as a mitigating circumstance.⁹²

13.58 The Director of Public Prosecutions relies on the Police Service, which maintains a Criminal Histories System on offenders who have been dealt with by a court following an arrest.⁹³ The Department of Corrective Services and the Department of Juvenile Justice also maintain information about criminal histories but only in a limited way. The Department of Corrective Services holds information in its Offender Records System about offenders sentenced to prison, while the Department of Corrective Services maintains records in its Juvenile Index System of court outcomes concerning youth offenders.⁹⁴

13.59 There is no statutory basis for the Police Service, the Department of Corrective Services and the Department of Juvenile Justice to create and maintain records of criminal histories. The Attorney General’s Department, in a Discussion Paper published in 1998 on the Criminal Records Act 1991 (NSW),⁹⁵ proposed that legislation be introduced to recognise the right of these agencies to create and maintain criminal histories.⁹⁶ It was further recommended that the proposed legislation should cover the use of and access to criminal history information.⁹⁷ The Government has not yet implemented the proposals.

13.60 At present, there is no formal central registry of court outcomes in contempt prosecutions. The Crown Solicitor’s Office relies on its own files to obtain information on prior convictions for contempt, for the purpose of assisting the sentencing court by identifying any relevant previous convictions.⁹⁸

13.61 In Proposal 26 of DP 43, the Commission proposed that the Attorney General should create and maintain a registry of court outcomes of criminal contempt proceedings, and that the information in the proposed registry should be used only for sentencing purposes.

13.62 It is desirable to establish a formal system that would allow prosecutors and courts to determine accurately an accused’s record of past conduct involving contempt of court. A formal registry is desirable to facilitate a closer scrutiny of the type of information created and maintained. It would also promote consistency in the information recorded. However, it is important that the use of such information be limited to sentencing proceedings.

13.63 The Australian Broadcasting Corporation,⁹⁹ the Australian Press Council¹⁰⁰ and Mr David Norris of the New South Wales Crown Solicitor’s Office¹⁰¹ support the Commission’s proposal. There was no opposition made in the written submissions or during the consultation meetings.

13.64 The New South Wales Director of Public Prosecutions (“DPP”) supports the proposal but suggests that the information in the proposed registry should not only be used for sentencing purposes but “should be able to be adduced on the issue of whether or not a criminal contempt has been committed where relevant to an issue in the proceedings; for example, information about a prior breach should be admissible where the accused is relying on the assertion that he/she/it was ignorant of the law.”¹⁰²

13.65 The Commission does not accept the DPP’s suggestion. Its adoption might suggest that ignorance of the law is a defence on liability for contempt.

13.67 An injunction to restrain an actual or threatened contempt of court may be granted by a superior court that has power both to punish and to issue injunctions.¹⁰³ An injunction is an order of the court, which in the context of sub judice contempt, would restrain the publication of allegedly prejudicial material. However, it may also require the publisher to retrieve copies of a publication in written form that has already been released.¹⁰⁴ Moreover, if it is proper to seek an injunction against a threatened contempt, there is no reason why there should not be an application for an injunction to restrain a repetition of an already committed contempt, if there is a real danger of repetition.¹⁰⁵

13.68 The jurisdiction of courts to issue injunctions in the context of contempt by publication is examined very sparingly.¹⁰⁶ One reason for this is that it is the settled practice of courts not to grant injunctions restraining the commission of a criminal act unless the penalties available are inadequate to deter the commission of an offence.¹⁰⁷ Other reasons are canvassed in DP 43 at paragraphs 13.58 and 13.59.

13.69 An application for an injunction may be made to the Supreme Court,¹⁰⁸ which has jurisdiction to punish sub judice contempt. It would appear that although sub judice contempt proceedings are assigned to the Common Law Division of the Supreme Court, an application for an injunction in connection with such proceedings may be lodged with other Divisions, for example with the Equity Division.¹⁰⁹

13.70 In proceedings for an injunction to restrain an apprehended contempt, the instigating party must prove the relevant matters on the balance of probabilities.¹¹⁰

13.71 An applicant for an injunction on grounds of an apprehended contempt must identify with reasonable precision the material to be covered by the injunction. This does not, however, necessarily entail submitting to the court a draft or other version of the precise publication.¹¹¹ He or she must also satisfy the court that the essential ingredients of the alleged contempt would be present if the material were published and that the contempt would be of sufficient seriousness to justify departing from the general principle that a prior restraint on a publication is regarded as “inimical to the institutions of a free society”.¹¹²

13.72 In addition, where an injunction being sought is an interlocutory one, the applicant must satisfy the normal equitable requirements that the degree of probability of success at trial is sufficient to warrant preservation of the status quo by the injunction, and that the inconvenience to the applicant resulting from refusal of the injunction would outweigh the hardship that would be caused to the respondent through an injunction being granted.¹¹³

Who can apply for an injunction to stop the publication of prejudicial material

Private individuals
13.73 It is accepted that the Attorney General has standing to seek an application for an injunction to restrain the publication of prejudicial material.¹¹⁴ Nevertheless, a private individual who is deemed to have a sufficiently proximate interest may also apply.¹¹⁵ Such a person must have some special interest over and above that enjoyed by all members of the public in the due administration of justice.¹¹⁶ The most obvious example of a private citizen who has a special interest is somebody who is an accused.¹¹⁷ By contrast, it has been held that a witness, who attends the proceedings out of a sense of public duty and whose obligation is to give his evidence fairly and truthfully, does not have an interest sufficient to seek injunctive relief in relation to the broadcast of a television program.¹¹⁸

13.74 Despite the fact that a private individual has standing to apply for an injunction to restrain an anticipated (or the likely repeat of a) breach of the sub judice principle, the view has been expressed that it is preferable for the Attorney General to be the moving party in such applications, even when the threatened breach would create a risk of prejudice to civil, not criminal, proceedings.¹¹⁹

The Commission’s proposal on the standing of private individual to apply for injunctions
13.75 In DP 43, the Commission supported the rule that private individuals who possess a sufficient interest should be able to apply for an injunction to restrain the publication of material which would be in breach of the sub judice principle. The Attorney General may refuse to act to restrain such publication and a private individual, such as the accused, should be allowed to make the application for an injunction. The accused in criminal proceedings, for example, should have a remedy to stop the publication of prejudicial material that could potentially cause the trial to be aborted, delay the resolution of the criminal charge against him or her, prolong his or her incarceration and add to the costs of the proceedings. Such a person should not have to rely on the Attorney General to prevent the publication of material that could jeopardise the proceedings to which he or she is a party.

13.76 However, the Commission, in its Proposal 29, proposed that legislation should provide that a private individual who intends to apply for an injunction to stop an apprehended criminal contempt shall, prior to such application, notify the Attorney General and the parties to the proceedings (if any) allegedly involved. This is consistent with the Commission’s Recommendation 26 in Chapter 12. The reasons for Recommendation 26 concerning the need for coordination of efforts in prosecuting contempts¹²⁰ apply equally to applications for injunctions. As with Recommendation 26, the notice requirement for injunction applications by individuals does not give the Attorney General or the Director of Public Prosecutions the right to veto the application.

Feedback from the submissions
13.77 The Australian Press Council, Law Society of New South Wales, the New South Wales Director of Public Prosecutions, and Mr David Norris support the Commission’s proposal.

13.78 The Australian Broadcasting Corporation does not agree with the proposal but gave no reasons for its position.

13.80 The DPP has the power at common law to prosecute sub judice contempt. The Commission considers it useful for the DPP to possess an ancillary power to deal with an apprehended commission or an anticipated repetition of such offence. Since both the Attorney General and the DPP have power to institute and maintain sub judice contempt proceedings, there is no sound policy reason why they both should not be able to apply for injunctions with respect the same matter. Where, for example, the DPP has instituted sub judice contempt proceedings and the accused is planning further publication of the prejudicial material, the DPP should have authority to apply for an injunction instead of relying on the Attorney General to do it.

13.81 In his written submission, the DPP noted the Commission’s comment that both the DPP and the Attorney General have the power at common law to commence and maintain contempt proceedings. However, he asserted that in practice, it is the Attorney General who exercises this power in New South Wales. Consequently, with respect to the proposed grant of a statutory power to apply for injunction in relation to sub judice contempts, the DPP wrote that his office “does not need this power (as it would not use it).”¹²¹

The Commission’s recommendation
13.82 Notwithstanding the DPP’s submission, the Commission considers it useful to give to that office the proposed power. There could in the future be a change in policy concerning the active use of the DPP’s power (the existence of which no one disputes) to prosecute for criminal contempt. When that happens, it is important for the office to also have the ancillary power to deal with an apprehended commission of a criminal contempt, or an anticipated repetition of such offence, through injunctions.

13.83 It seems that at common law an action for damages does not lie for contempt as such, except in relation to damages for the costs incurred by the failure of a witness to comply with a subpoena to attend a court.¹²² The leading authority on the unavailability of this remedy in contempt is the English case of Chapman v Honig.¹²³ The decision is based upon the notion that the court’s jurisdiction in contempt is concerned with a wrong against the administration of justice rather than against an individual.¹²⁴

13.84 However, in United Telecasters Sydney Ltd v Hardy, the New South Wales Court of Appeal suggested that the law might recognise an action on the case for damages for the loss suffered by an accused, where the criminal proceedings are aborted as result of publications that breached sub judice principle. Justice Samuels discussed the tort of collateral process, which he described as a “public wrong in the sense that the administration of justice was abused” and proceeded to suggest that the law can grant remedy for damage inflicted on parties by contemnors:

13.86 In light of the apparent lack of remedy for damages for loss resulting from sub judice contempt, the Costs in Criminal Cases Amendment Bill 1991 (NSW) was introduced. This bill and the broader issue of compensation for loss suffered as a result of contemptuous publication is examined in greater detail in the next chapter.

Table of Contents

1. Supreme Court Rules 1970 (NSW) Pt 55 r 13(1) provides “Where the contemnor is not a corporation, the Supreme Court may punish contempt by a fine or imprisonment or both”.

2. Registrar, Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, No 40478/92, 21 April 1993, unreported) at 5 (Mahoney J).

3. R v Wattle Gully Gold Mines NL [1980] VR 622; Hinch v Attorney General [1987] VR 721 at 732 (Young CJ).

4. R v West Australian Newspapers Ltd; Ex parte The Minister for Justice (1958) 60 WALR 108; R v Regal Press Pty Ltd [1972] VR 67; R v Scott and Downland Publications Ltd [1972] VR 663; Attorney General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362; Attorney General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374; R v David Syme & Co Ltd [1982] VR 173; Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616; Director of Public Prosecutions (Cth) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732; Attorney General (NSW) v Mayas Pty Ltd (NSWCA, No 174/83, 28 March 1984, unreported); Attorney General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405; Attorney General (NSW) v Nationwide News Pty Ltd (NSWCA, No 40141/90, 11 October 1990, unreported); Registrar, Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, No 40478/92, 21 April 1993, unreported); Attorney General (NSW) v Northern Star Ltd (NSWCA, No 40259/94, 14 October 1994, unreported); Attorney General (NSW) v Time Inc Magazine Co Pty Ltd (NSWCA, No 40331/94, 15 September 1994, unreported); R v Day & Thomson [1985] VR 261; R v Herald & Weekly Times Ltd (VSC, No 6570/95, 15 April 1996, unreported); R v Nationwide News Pty Ltd; Ex parte DPP for WA (WA, Supreme Court, No 1763/95, 10 July 1996, unreported); R v Saxon [1984] WAR 283; R v Thompson [1989] WAR 219; Registrar, Supreme Court of SA v The Advertiser Ltd (SA, Supreme Court, No 2418/95, 17 May 1996, unreported).

5. Director of Public Prosecutions (Cth) v Australian Broadcasting Corporation (1986) 7 NSWLR 588; Attorney General (NSW) v Time Inc Magazine Co Pty Ltd (NSWCA, No 40331/94, 15 September 1994, unreported); R v David Syme and Co Ltd [1982] VR 173; R v Day [1985] VR 261; R v Truth Newspaper (VSC, No 4571/93, 16 December 1993, unreported); R v Herald & Weekly Times Ltd (VSC, No 6570/95, 15 April 1996, unreported); R (On Application of AG for State of Vic) v Spectator Staff Pty Ltd [1999] VSC 107; R (On Application of the AG for the State of Vic) v Herald & Weekly Times Ltd [1999] VSC 432 (liability); R v Herald & Weekly Times (No 2) [2000] VSC 35 (penalty); R v Barber (WA, Supreme Court, No 2330/90, 22 October 1990, unreported); R v West Australian Newspapers Ltd; Ex parte DPP for WA (1958) 60 WALR 108; R v Saxon [1984] WAR 283; R v Thompson [1989] WAR 219.

6. R v Pacini [1956] VLR 544; Hinch v Attorney General (Vic) [1987] VR 721; Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCA, No 40236/96, 11 March 1998, unreported); Attorney General v Radio 2UE Sydney Pty Ltd (NSWCA, No 40225/91 and 40226/91, 28 August 1992, unreported); R v 61X Southern Cross Radio Pty Ltd; Ex Parte Director of Public Prosecutions (WA) [1999] WASCA 254.

7. Attorney General (NSW) v Willesse [1980] 2 NSWLR 143; Director of Public Prosecution (Cth) v United Telecasters Sydney Ltd (1992) 7 BR 364; R v Australian Broadcasting Corporation [1983] Tas R 161; Director of Public Prosecutions (Cth) v Australian Broadcasting Corporation (1987) 7 NSWLR 588; R v Australian Broadcasting Corporation; Ex Parte Director of Public Prosecutions (WA) (WA, Supreme Court, No 1256/94, 26 July 1994, unreported); Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 (liability), (1990) 5 BR 419 (penalty); Attorney General (NSW) v Amalgamated Television Services Pty Ltd (1990) 5 BR 396; Attorney General (NSW) v Australian Broadcasting Corporation (NSWCA, 40136/90, 11 October 1990, unreported); Attorney General (NSW) v United Telecasters Sydney Ltd (NSWCA, No 40139/90, 11 October 1990, unreported).

9. Registrar, Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, No 40478/92, 21 April 1993, unreported); R v Truth Newspaper (VSC, No 4571/93, 16 December 1993, unreported); R v Nationwide News Pty Ltd (VSC, No 6129/97, 22 December 1997, unreported) (liability), (VSC, No 6129/97, 18 February 1998, unreported) (penalty); R v Barber (WA, Supreme Court, No 2330/90, 22 October 1990, unreported); R v Saxon [1984] WAR 283; R v Thompson [1989] WAR 219.

10. Attorney General v Radio 2UE Sydney Pty Ltd (NSWCA, No 40225/91 and 40226/91, 28 August 1992, unreported); Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCA, No 40236/96, 11 March 1998, unreported); Hinch v Attorney General (Vic)[1987] VR 721.

12. Supreme Court Rules 1970 (NSW) Pt 55 r 13(3). For illustrations of the imposition of the penalty of fine on terms, see Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309.

13. NSW Law Reform Commission, Contempt by Publication, (Discussion Paper 43, 2000) (“NSWLRC DP 43”) at para 13.6.

14. Registrar v Maniam (No 2) (1992) 26 NSWLR 309 at 314 (Kirby J) citing Smith v The Queen (1991) 25 NSWLR 1; compare with La Trobe University v Robinson [1973] VR 682 where the Supreme Court of Victoria held that The Bill of Rights (1688) 1 Will and Mar, Sess 2, c 2 (Eng) did not take away the right to issue a writ of attachment in respect of a contempt of court, and indefiniteness of detention is inherent in the use of that writ.

16. ABC, Submission at 3; Australian Press Council, Submission at para 26; N Cowdery QC, Submission at 4; Law Society of NSW, Submission at para 52; D Norris, Submission at para 112.

18. For a comparison of penalties imposed in the different Australian states for sub judice contempt, see Appendix E. See also R Williams, “Contempt of court: prejudicing the administration of justice” [1995] Gazette of Law and Journalism (No 30) 2.

19. Director of Public Prosecutions (Cth) v Wran (1986) 7 NSWLR 616; Attorney General (NSW) v Amalgamated Television Services Pty Ltd (1990) 5 BR 396; Attorney General (NSW) v Nationwide News Pty Ltd (NSWCA, No 40141/90, 11 October 1990, unreported); Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCA, No 40236/96, 11 March 1998, unreported). The second and third cases belong to the so-called “Paul Mason cases” as they related to the media coverage of the criminal trial of Paul Mason for murder.

20. Attorney General v Australian Broadcasting Corporation (NSWCA, No 40136/90, 11 October 1990, unreported). This is one of the “Paul Mason cases”.

21. Director of Public Prosecutions (Cth) v Australian Broadcasting Corporation (1987) 7 NSWLR 588; Attorney General v Time Inc Magazine Co Pty Ltd (NSWCA, No 40331/94, 15 September 1994, 21 October 1994, unreported).

22. Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCA, No 40236/96, 11 March 1998, unreported).

24. Director of Public Prosecutions (Cth) v Australian Broadcasting Corporation (1986) 7 NSWLR 588.

25. Attorney General v Radio 2UE Sydney Pty Ltd (NSWCA, No 40225/91 and 40226/91, 28 August 1992, unreported).

26. Harkianakis v Skalkos (1997) 42 NSWLR 22 (liability), (NSWCA, No 40514/96, 15 October 1997, unreported) (penalty).

27. This person was also managing director of the company producer and the person in control of the program: Attorney General (NSW) v Willesee [1980] 2 NSWLR 143.

28. Registrar, Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, No 40478/92, 21 April 1993, unreported).

29. Harkianakis v Skalkos (1997) 42 NSWLR 22 (liability), (NSWCA, No 40514/96, 15 October 1997, unreported). The journalist in this case was also the managing director of the company that own the paper.

31. This was entitled Crimes (Protection of the Administration of Justice) Amendment Bill (Cth). It was never introduced in Parliament.

32. A penalty unit means $110: Crimes (Sentencing Procedure) Act 1999 (NSW) s 17; Crimes Act 1914 (Cth).

35. In Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCA, No 40236/96, 11 March 1998, unreported), Justice Meagher expressed the minority view that the appropriate fine on Mr Laws was $250,000, which was the same amount of fine he said Radio 2UE Pty Ltd should be ordered to pay. Justice Meagher reasoned: “As far as the second opponent (Mr Laws) is concerned, the fine should likewise be $250,000. To fine him $20,000 (or even $50,000) is ludicrous. It is the equivalent of a slap on the wrist. It would operate as a deterrent neither to him nor to anyone else. It would not hurt him. It is about the amount he would spend on a small cocktail party: it is a cost he would not feel. It would not pay for a fraction of the costs of the aborting of one trial and recommencing another. I regret to have to say so in plain language, but in my view it would a reproach to the court and an insult to the public. It would be a reproach to the court, because it is the court’s duty to make appropriate, and risible, orders. It would be an insult to the public, because the public would think that if you are rich and powerful enough you can get away with anything.” Justices Priestly and Powell held that the appropriate penalty for the radio station was $200,000 but only $50,000 for Mr Laws. The fine on Mr Laws has been the highest imposed on an individual in a sub judice case in NSW and is higher than the fines imposed on corporate offenders in a number of other cases: See Appendix E.

36. Although the threat of a recorded conviction may be a significant deterrent.

37. Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314 (Kirby J); Attorney General (NSW) v Whiley (1993) 31 NSWLR 314 at 320. See also Gallagher v Durack (1983) 152 CLR 238 at 249 (Murphy J).

38. See Registrar, Court of Appeal v Maniam (No 2) at 314 (Kirby J) citing Smith v The Queen (1991) 25 NSWLR 1. See also Gallagher v Durack at 249 (Murphy J).

39. Attorney General (UK) v James [1962] 2 QB 637 at 641 (Goddard CJ). This was not always the case at common law. The early practice of the Court of Chancery in England, for instance, was to commit for an indefinite period leaving applications for release to be made until the contempt was considered to be purged. A contemnor would generally be regarded as having “purged” the contempt upon compliance with the relevant order of the court, or expression of contrition or when the contemnor was thought to have been sufficiently punished: See Re The Bahama Islands [1893] AC 138 at 145.

43. Crowley v Brown [1964] 1 WLR 147; Gray v Campbell (1830) 1 Russ & M 323; 39 ER 124; Hall v Etches (1817) 1 Russ & M 324; 39 ER 125.

45. Durack v Gallager (1982) 44 ALR 272 at 286-287 (Northrop J); Director of Public Prosecutions (Cth) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741-742 (Kirby J).

46. Gallagher v Durack (1983) 152 CLR 238; Attorney General (NSW) v Mundey [1972] 2 NSWLR 887.

47. A similar prudence in the use of this penalty is shown in other jurisdictions: See G Borrie and N Lowe, The Law of Contempt (3rd edition, Butterworths, London, 1996) at 527-528.

48. Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 at 710. This case was on the borderline between sub judice contempt and contempt by way of direct interference with proceedings.

52. In Attorney General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCA, 40236/96, 11 March 1998, unreported), Justices Meagher and Powell expressed the view that had Mr Laws intended to interfere with the course of justice or had he been guilty of recklessness in the relevant sense, a custodial sentence would have been appropriate.

53. ABC, Submission at 3; Australian Press Council, Submission at para 26; N Cowdery QC, Submission at 4; Law Society of NSW, Submission at para 53; D Norris, Submission at para 113-114.

55. See, however, Verrier v Director of Public Prosecutions [1986] 2 AC 195 where it was held that the length of the term of imprisonment for a common law misdemeanour was not limited to a maximum but was at large and in the discretion of the court.

56. ABC, Submission at 3; Australian Press Council, Submission at para 26; N Cowdery QC, Submission at 4; Law Society of NSW, Submission at para 53; D Norris, Submission at para 113-114.

63. In R v Cohn (1984) 15 CCC (3d) 150, the Ontario Court of Appeal observed that there does not seem to be a case where the final sentence in a criminal contempt case has exceeded two years. See also R v Lamer (1973) 17 CCC (2d) 411 which contains a survey of sentences which have been imposed in contempt cases in Canada, England and the United States up to 1973.

64. Attorney General (NSW) v Whiley (1993) 31 NSWLR 314; Wood v Galea (1997) 92 A Crim R 287.

65. Registrar, Criminal Division, Supreme Court of NSW v Glasby [1999] NSWSC 846 (Adams J).

66. R v West Australian Newspapers Ltd; Ex parte the Minister for Justice (1958) 60 WALR 108 (the editor of the newspaper was censured but the corporate proprietor of the newspaper was fined for the breach of the sub judice principle).

68. It was held in R (On Application of AG for State of Vic) v Spectator Staff Pty Ltd [1999] VSC 107 that a conviction would be sufficient, without the imposition of a penalty, as a significant deterrent.

69. Attorney General (NSW) v Mundey [1972] 2 NSWLR 887; Attorney General (NSW) v Dean (1990) 20 NSWLR 650; R v Pearce [1992] 7 WAR 395; Registrar, Court of Appeal v John Fairfax Group Pty Ltd (NSWCA, No 40250/94, 23 February 1995, unreported).

70. See, for example, Attorney General (NSW) v Mundey; Attorney General (NSW) v Dean.

71. Crimes (Sentencing Procedure) Act 1999 (NSW) s 8; formerly governed by the Community Service Orders Act 1979 (NSW).

72. Crimes (Sentencing Procedure) Act 1999 (NSW) s 9 and Pt 7. These provisions give statutory basis to the common law power – commonly known as the “Griffiths Remand” (see Griffiths v The Queen (1977) 137 CLR 293) – to release an offender pending sentence in order to assess the offender’s behaviour and capacity for rehabilitation before imposing sentence.

73. Crimes (Sentencing Procedure) Act 1999 (NSW) s 10 and Pt 8; formerly governed by the Crimes Act 1900 (NSW) s 556A.

74. Crimes (Sentencing Procedure) Act 1999 (NSW) s 11; formerly governed by the Crimes Act 1900 (NSW) s 558.

75. Crimes (Sentencing Procedure) Act 1999 (NSW) s 12. This section reintroduces the power of courts to order suspended sentences which has not been available in NSW since 1974.

76. Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 5; formerly governed by the Periodic Detention of Prisoners Act 1981 (NSW).

77. Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 6; formerly governed by the Home Detention Act 1996 (NSW).

79. Attorney General v Whiley (1993) 31 NSWLR 314. But see contrary view in Young v Registrar, Court of Appeal (1993) 32 NSWLR 262 at 288 (Handley J).

81. Principal Registrar, Supreme Court of NSW v Jando (2001) 53 NSWLR 527 at para 45.

82. In an earlier case, ICAC v Cornwall (NSWSC, No 11043/93, Abadee J, 8 September 1993, unreported), there was a view that periodic detention, then governed by the Periodic Detention of Prisoners Act 1981 (NSW), should be available in contempt cases. That view was obiter because the Act could not be applied to that case due to a provision preventing a sentence of less than 3 months being served by way of periodic detention.

83. ABC, Submission at 3; Australian Press Council, Submission at para 26; N Cowdery QC, Submission at 4; D Norris, Submission at para 115.

86. Principal Registrar, Supreme Court of NSW v Jando (2001) 53 NSWLR 527 at para 45.

87. Compare Attorney General v Whiley (1993) 31 NSWLR 314 and Young v Registrar, Court of Appeal (1993) 32 NSWLR 262 at 288 (Handley J).

88. NSW Law Reform Commission, Sentencing: Corporate Offenders (Issues Paper 20, 2001) (“NSWLRC IP 20”).

90. Director of Public Prosecutions (Cth) v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 615; Hinch v Attorney General (Vic) [1987] VR 721 at 752 (Kaye J); Attorney General (NSW) v Macquarie Publications Pty Ltd (1988) 40 A Crim R 405 at 410 (Kirby J); Attorney General (NSW) v Time Inc Magazine Co Pty Ltd (NSWCA, No 40331/94, 21 October 1994, unreported).

91. Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (NSWCA, No 40139/90, 11 October 1990, unreported).

92. Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (1992) 7 BR 364 at 376 (Kirby J).

93. NSW, Attorney General’s Department, Criminal Records Act 1991 (Discussion Paper, 1998) at 6. See also Royal Commission into the NSW Police Service, Final Report (1997) vol 2 at para 7.182-7.184.

94. NSW, Attorney General’s Department, Criminal Records Act 1991 (Discussion Paper, 1998) at 6.

95. This Act limits the effect of a person’s conviction for a relatively minor offence (sentences for up to six months imprisonment) if the person completes a crime-free period (ten years, except in the case of an order of the Children’s Court where the period is three years). On completion of the period, the conviction is regarded as spent. If a conviction of a person is spent, (a) the person is not required to disclose information about the spent conviction, (b) a question concerning the person’s criminal history is taken to refer only to convictions which are not spent, and (c) in the application to the person of provision of an Act, a reference in the provision to a conviction or the person’s character or fitness is not to be interpreted to include a spent conviction.

96. NSW, Attorney General’s Department, Criminal Records Act 1991 (Discussion Paper, 1998) at 7.

97. NSW, Attorney General’s Department, Criminal Records Act 1991 (Discussion Paper, 1998) at 7.

98. D Norris (Senior Solicitor, Crown Solicitor’s Office), Letter to the Executive Director of the NSW Law Reform Commission (29 October 1999) at 2.

103. Victoria v Australian Building Construction Employees’ and Builders’ Federation (1982) 152 CLR 25 at 42 (Gibbs J).

104. Attorney General (NSW) v Time Inc Magazine Co Pty Ltd (NSWCA, No 40327/94, 7 June 1994, unreported).

105. See, for example, Hardy v United Telecasters Ltd (1989) 4 BR 347; Doe v John Fairfax Publications Pty Ltd (1995) 125 FLR 372.

106. P v Liverpool Daily Post and Echo Newspaper Plc [1991] AC 370 at 381-382 (Lord Donaldson MR).

107. P v Liverpool Daily Post and Echo Newspaper Plc at 381-382 (Lord Donaldson MR).

108. In contrast, it has been held that a judge of the District Court does not have power to order the prior restraint of a threatened contempt: United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323.

109. Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 at 718-721 (Young J).

110. Waterhouse v Australian Broadcasting Corporation at 735 (Glass J); Attorney General (NSW) v TCN Channel Nine Pty (1990) 5 BR 10 at 19 (Hunt J). For a discussion of the difference between the standard of proof in a civil proceeding to restrain threatened conduct which would amount to sub judice contempt and a criminal proceeding for the punishment of past contempt, see Hinch v Attorney General (Vic) (1987) 164 CLR 15 at 50-52 (Deane J).

111. Hardy v United Telecasters Ltd (1989) 4 BR 347; John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81.

112. Waterhouse v Australian Broadcasting Corporation at 735 (Glass J); See also Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 at 566 (Hunt J); National Mutual Life Association of Australia Ltd v General Television Corporation Pty Ltd [1989] VR 747 at 760 (Ormiston J); Marsden v Amalgamated Television Services Pty Ltd (NSWCA, No 40229/96, 2 May 1996, unreported).

113. Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554; Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10; Marsden v Amalgamated Television Services Pty Ltd (NSWCA, No 40229/96, 2 May 1996, unreported).

114. Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 16 (Hunt J).

115. Waterhouse v Australian Braodcasting Corporation (1986) 6 NSWLR 716 at 720 (Young J); Doe v John Fairfax Publications Pty Ltd (1995) 125 FLR 372 at 384 (Spender J). For English cases, see Peacock v London Weekend Television (1985) 150 JP 71; Leary v BBC (English Court of Appeal, 29 September 1989, unreported); P v Liverpool Daily Post and Echo Newspaper Plc [1991] 2 AC 370.

117. See, for example, Waterhouse v Australian Broadcasting Corporation at 720; Hardy v United Telecasters Ltd (1989) 4 BR 347; Doe v John Fairfax Publications Pty Ltd at 384 (Spender J).

119. Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 at 16 (Hunt J).

123. Chapman v Honig [1963] 2 QB 502. See discussion in United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 and in A Arlidge and T Smith, Arlidge, Eady and Smith on Contempt (2nd edition, Sweet & Maxwell, London, 1999) at 883-884.

125. United Telecasters Sydney Ltd v Hardy at 346-347. Justices Clarke and Meagher agreed with Justice Samuels’ judgment.