TCN CHANNEL NINE PTY LTD v MILLER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope JA 7 November 1988 [1988] NSWCA 155 Hope JA The Court has before it two summonses in which the claimants charge the opponent with contempt. The contempt which is alleged arises out of proceedings for defamation between the parties, the opponent being the plaintiff in those proceedings. The claimants, alleging that the opponent was harrassing and otherwise interfering with witnesses or potential witnesses in the defamation proceedings, have made application to the Common Law Division Court for orders that he be punished for contempt and that he be enjoined from interfering with the witnesses or otherwise harrassing them. In the event injunctions were made by consent and without admissions. Very properly, since the matter is within the jurisdiction of this Court, the allegation as to contempt was directed to be removed to this Court. Since the orders were made at first instance further events have occurred and it is alleged by the present claimants that the opponent, the plaintiff in the defamation proceedings, has been involved in further interference or attempted interference with witnesses in that defamation action. I do not comment at all upon the strength of the evidence upon which the claimants rely to establish that matter but the allegation is that, despite the injunctions, attempts have been made to interfere with witnesses. The hearing of the defamation action has been set down for a date in December but that date has now been vacated. The proceedings will be mentioned in November for the fixing of a new date. The prospects are, the Court has been told, that the proceedings will be heard some time possibly in the first half of next year. Because of the nature of the alleged contempt the claimants have asked that the hearing of the contempt proceedings takes place before the defamation action is heard. Such a course is one that has not been adopted usually in this Court. The Court has adopted the practice that contempt proceedings should stand over until after the substantive proceedings (if any) to which they are related have been disposed of. However, that principle is not one which is absolute. Its application must depend upon the circumstances of the case. It may be that in some cases it is appropriate for the contempt proceedings to be heard before the substantive proceedings are heard. In my opinion this is such a case. It is such a case because if the allegations of the claimants are proved the opponent has sought to interfere and is continuing to seek to interfere with witnesses who will be or who may be called in the defamation proceedings. I cannot emphasise enough that I do not express any view as to the evidence or as to the strength of it or as to whether it establishes that the opponent has in fact been interfering, as is alleged. However, it will be seen that if the claimants do make out their case, the injunctions which have been granted have not been sufficient to prevent the harrassing of or interference with witnesses from continuing. 2 UNREPORTED JUDGMENTS In the past where some such allegation has been made an undertaking to the Court has been sufficient to deal with the position. If the allegations which the claimants make are made out, that has not been the position in the present case. The injunctions have been ineffective to restrain the harrassing of or interference with witnesses. In those circumstances I think it is appropriate that the sooner the contempt proceedings are dealt with the better and, notwithstanding the practice which is commonly and usually adopted in this Court, I think the contempt proceedings should be dealt with as soon as possible. Those proceedings will involve the hearing of a considerable amount of evidence, both by way of leading evidence and by way of cross-examination. Various estimates have been given to the Court but it would seem that the hearing of the case will last at least a week and possibly longer. The hearing of evidence by a court of three is a difficult undertaking and in many respects unsatisfactory. In the light of the issues in the present case it would be better in my opinion if the issues of fact were determined by a single judge. There is, of course, power under s51(4) of the Supreme Court Act for this Court to remit the whole or any part of the proceedings to a division for determination by trial or otherwise. It has been suggested on occasions that an appropriate course may be simply to remit the hearing of evidence and await findings of fact before dealing with the matter. However, contempt proceedings are criminal proceedings and it seems to me to be inappropriate, at any rate in the circumstances of the present case, to remit the proceedings simply for the hearing of evidence and not for the purpose of being dealt with finally by the Court at first instance. Accordingly I have concluded that the appropriate course is to remit the hearing of the contempt proceedings, that is, of both proceedings, against the opponent by the claimants, to the Common Law Division of the Court to be heard and determined by that Court. This may seem a little strange because the proceedings were properly remitted by the Common Law Division to this Court when they first came before the Common Law Division. However, that was a course which the Common Law Division was constrained to take because of the exclusive jurisdiction of this Court, subject to its power of remittal, to deal with those proceedings. It in no way precludes this Court from remitting them, if that is the course which it thinks proper to take. Accordingly, I order that the contempt proceedings the subject of both notices of motion be remitted to the Common Law Division to be determined fully in that Division. I also order that the proceedings for contempt be heard before the defamation action be heard. So far as the costs are concerned, I think the appropriate order is that they be costs in the motions.