JANDEX PTY LTD v AUSTRALIAN BROADCASTING CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, MAHONEY and CLARKE JJA 17 July 1989, 17 July 1989 [1989] NSWCA 109 Contempt — alleged threatened contempt by a telecast in respect of current proceedings — application for injunction to restrain telecast refused — appeal — application for injunction pending appeal — need for applicant to establish clear case of contempt if telecast took place — application dismissed. Hope JA This is an application by Jandex Pty Ltd for an injunction pending the hearing of an appeal from a decision made in proceedings between it and the Australian Broadcasting Corporation, Robert Lyne and Baltmar Holdings Pty Ltd in the Equity Division of the Court in which Hodgson J declined to grant Jandex an injunction to restrain the Australian Broadcasting Corporation from broadcasting certain material on its programme called "The Investigators". The material concerns a dispute between Jandex and Baltmar about a debt which Baltmar claims is owed to it by Jandex. The debt arises out of a printing job which Baltmar performed for and at the request of Jandex. The original quote for that job was $13,000 but according to the learned judge at first instance the job actually performed was greater than that originally contemplated and Baltmar claimed an additional sum of about $46,000 for the extra work. Jandex paid the amount of the original quote, $13,000, but disputed the extent and value of the extra work. There were discussions between the parties to try to resolve the dispute and among other things Jandex offered to pay an additional $23,000 and also offered co-operation in resolving the dispute by arbitration. Both these offers were rejected by Baltmar and Baltmar in November 1988 instituted proceedings against Jandex in the District Court claiming approximately $46,000 on a common money count. Following a discussion between a director of Jandex and a person associated with "The Investigators", the matter was further inquired into on behalf of the Australian Broadcasting Corporation. After the representative of "The Investigators" had discussed the matter with persons representing Jandex there were discussions between the persons representing Jandex and_ persons representing the Australian Broadcasting Corporation. It was said for Jandex that it would like to have an informal discussion with the ABC to give their side of the story. The ABC responded that it would like an on-camera interview and not an informal discussion or a statement from the directors. The Australian Broadcasting Corporation was told on behalf of Jandex that the brochure the subject of the dispute contained confidential information and that Jandex was concerned that that confidential information would be made public by being televised. When it became aware of a proposal by the Australian Broadcasting Corporation to include a segment about it in "The Investigator's" programme, it took proceedings for the injunction. The script for the proposed segment was before the court and describes the nature of the arrangement which concerns the printing of a brochure in relation to the way in which Sydney's traffic problems could be solved. It describes Mr 2 UNREPORTED JUDGMENTS Lyne's descriptions of discussions which he had with a person representing Jandex and the circumstances in which Jandex took the work on and gave an estimate of $13,000. It also described Mr Lyne's reasons as to why the cost was substantially in excess of $13,000. After discussing what had happened in relation to the dispute and how Jandex had paid the original $13,000 but disputed the remaining $46,000, the script went on to say this: "We tried to get a response from Jandex. One director, Michael Duffy, refused to comment. The other Lloyd Shemwell told us 'the situation is a severe embarrassment for me personally and the company in general'. He appreciated the work Rob Lyne did for the company but disputed the extent of the work and the value of the variations. The company's agent, Michael Glennan, with whom Rob had dealt, was obviously not interested in talking at all. The dispute is still far away from resolution." The transcript concludes by saying that, while the counter claims and attempts of settlement proceed, the dispute will probably continue well into the 1990s when Rob Lyne and Jandex will once again face each other in the District Court to finally settle the bill. The last paragraph reads: "Remember when contracting or taking on the job, get the costs in writing. You need to understand exactly what the quote covers and what it doesn't. If it becomes a bigger project than planned it's well worthwhile making a new arrangement in writing. And if you have trouble, there's always the option of arbitration instead of undertaking a long expensive court battle." Hodgson J, having discussed the history of the matter and the submissions as to law and fact which had been made to him, said- "In my view, the alleged continuing prejudgments of issues would on their own be insufficient to justify intervention by this Court. In my view, it is a technical reading of the early reference to the District Court dispute which suggests that it relates to delays in payment. I think a reasonable understanding of what is there said is to the effect that Baltmar's entitlement to payment is the subject of the dispute. As regards the other matters referred to, I do not think there is in any event a substantial dispute that the job as quoted and the job as performed were 'two different things', or that the job was performed 'on time'. The use of 'yet' complained of does suggest some partiality, but is insufficient to create real prejudice. As regards the other matters, they are asserted by the reporter as facts rather than as claims by Baltmar, but I would not regard them as sufficient prejudgments of issues so as to justify intervention." His Honour then went on to refer to what he described as references to Supreme Court proceedings and said that he was somewhat troubled by them but that they were not sufficient to justify the granting of an injunction. However, having concluded that he would not grant an injunction, his Honour expressed the hope that the ABC would see fit to omit or correct what seemed to him to be a half-truth about the Supreme Court actions. Before this Court evidence has been adduced by the ABC that it is not proposed to include that material in the telecast and indeed an undertaking has been given on this behalf that it would not be included and the amended transcript of the telecast has been put before us with the relevant passages deleted. URJJANDEX PTY LTD v AUSTRALIAN BROADCASTING CORPORATION (Hope JA) 3 The proceedings at first instance were based both on a prospective contempt of court and also on a claim that if published it would be defamatory of the plaintiff. His Honour rejected both claims. The only matter the subject of the appeal concerns the allegation that there is a prospective contempt of court. Where material concerning pending litigation is published in any form of the media it may amount to contempt in one of a number of ways. First, a party to the proceedings may be induced not to enforce his legal rights. That is, the material published may be so prejudicial that he will forego his rights rather than face further obloquy by litigating the matter publicly in the courts. Secondly, the publication may influence the tribunal itself. Nowadays this is generally regarded as not being relevant where a judge is the tribunal, but is still relevant where a jury is the tribunal. But thirdly, and this is relied upon by Jandex in this appeal, there may be a contempt of court where there is a public prejudgment of the issues to be resolved in the pending litigation. As Lord Diplock put it in his judgment in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 309- "Once the dispute has been submitted to a court of law they, that is, the parties should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law." Putting it shortly, the law of contempt is against trial by the media and understandably so. It is apparent that Mr Justice Hodgson concluded that this was not such a case and that is what I understand his Honour to mean when he said in the passage which I have already quoted that in his view the alleged continuing prejudgments of issues would on their own be insufficient to justify intervention by the court. The nature of the case justifying an injunction to restrain a proposed alleged contempt of the class was described by Lord Denning in Attorney-General v British Broadcasting Commission [1981] AC 303 at 311 in these terms, dealing with an application by the Attorney-General for such an injunction: "To my mind the court should not award him such an injunction except in a clear case where there would manifestly be a contempt of court for the publication to take place." In the House of Lords Lord Edmund Davies at 346 approved that statement. The Court was referred to what was said by Deane J in Hinch v Attorney-General (Vic) (1987) 61 ALJR 556 at 557. However, it should be observed that at 570 Deane J described the type of situation he was referring to as civil proceedings to restrain threatened conduct which would have a clear tendency to prejudice the due administration of justice in relation to pending proceedings. The claimant relies strongly upon the decision in Attorney-General v Times Newspapers Ltd [1974] AC 273 and on a number of statements appearing in the judgments of the members of the House of Lords in this case. That was a case concerning proceedings which were pending against the manufacturers of thalidomide and the attempts to settle those cases. The House of Lords was dealing with a publication already made and more relevantly with a publication which was threatened. It is in relation to the latter publication that statements were made as to the nature of contempt which is constituted by a prejudgment of the merits of a dispute. It was a very strong case. The disputes that were involved in the proceedings were ones with a high emotional content which had been the subject of a lot of publicity and concerning which the prejudgment of the issue of negligence by the manufacturers of thalidomide could be regarded as being an interference with the due administration of justice. 4 UNREPORTED JUDGMENTS However, it is by no means clear that the law as laid down in that case can be taken without qualification to be the law in Australia. In Victoria v The Australian Building Construction Employees' and Builders Labourers' Federation (1981-1982) 152 CLR 25 at 96 Mason J (as he then was), referring to Times Newspapers Ltd and to a statement by Scarman LJ in [1981] AC at 362, said- "It was this decision and the United Kingdom's obligation to comply with its international obligations that induced Lord Scarman to say, in the context of the forming the law: '...the prior restraint of publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there is a substantial risk of injustice'. (Attorney-General v British Broadcasting Commission [1981] AC 303 at 362.") Mason J went on to say that it may be that Scarman LJ's comment more nearly reflected the existing common law in Australia than did the approach taken in Times Newspapers Limited. It has been submitted for the claimant that that is a tentative statement. If that be correct, however, what followed was not tentative. What his Honour said at 97 was: "But putting this possibility to one side, I see no reason for giving a general operation to a rule which was specifically fashioned to deal with the peculiar problem in that case, the problem posed by press pre-judgment designed to bring pressure to bear on a litigant to compromise claims brought against it." I do not think that this is such a case. It may be that it will be established at the hearing of the appeal that the proposed telecast would constitute a contempt, but I am by no means clear that it would be so. I think it falls well short of the general descriptions that have been given of trial by media. A problem does arise in that it may be suggested that there is implicit in that part of the material which describes the way in which representatives of Jandex declined to be part of the telecast in order to describe their side of the story what could be said to be an interference with the administration of justice. However, having regard to the whole of the transcript and the circumstances of the case, I am not satisfied that Hodgson J was in error in his conclusion that a case for injunction was not made out. I am likewise satisfied, particularly in the light of the amendment to the transcript which the ABC has undertaken to the Court that it would make, that it is not a case in which an injunction pending the hearing of the appeal should be granted. I dismiss the application for costs. Mahoney JA I agree with Mr Justice Hope. The only basis on which in the end this matter has been pressed for the plaintiff has been that what is proposed to be broadcast will constitute a discussion of the merits of the pending District Court proceedings which goes beyond the limits of what is permitted by the law. Whether such a discussion would provide a proper basis for contempt proceedings is a matter upon which I express no opinion. That is a matter on which I would desire to have detailed argument The main basis for the application lies in the comments which are proposed to be made on the fact that some of the directors of the plaintiff company declined to say anything about the matter or about the merits of the pending litigation. They declined, having been told in effect that what they said (or more accurately and relevantly, a cut or edited version of it, to be cut or edited, of course, by the defendant), would be broadcast, or might well be broadcast. URWANDEX PTY LTD v AUSTRALIAN BROADCASTING CORPORATION (Clarke JA) 5 The inference suggested for the plaintiff is, I think, that because they would not comment they were acting (or should be inferred, from what was proposed to be said, to be acting) dishonourably and from that it is to be inferred that the defendant has no defence to the claim Mr Lyne has made and which is now pending in the District Court. To suggest that a person who declines to comment is acting dishonourably or may be acting dishonourably would ordinarily be, of course, wrong. At least it might well be so. There are many reasons why a person who is involved in litigation or in a dispute in which litigation is impending might decline to comment, many reasons which would be perfectly honourable. There are many grounds for thinking that if his comments are to be broadcast in the public domain, and in particular in a cut and edited version, he might be wise to avoid comment of this kind. To suggest otherwise might, or would be misleading. It would be wrong, as I have said, to infer that the person has a dishonourable motive for refusing to be involved in comment in those circumstances. Indeed, by commenting on the facts and/or the merits of such litigation he himself might well be guilty of the kind of contempt which is here suggested against the ABC. I do not need to develop this point and I do not desire to do so because it may become relevant in such proceedings for defamation as may be pressed against the defendant by the company and/or one or other of its directors. It is sufficient to say that on balance I am not satisfied to the appropriate degree that it is to be inferred that the comment would base the kind of suggestion to which I have referred or would lead to the conclusion that there had been a discussion of the merits of the matter contrary to the principle which has been suggested by Mr Campbell. I, therefore, agree with the orders proposed by Mr Justice Hope. Clarke JA I agree with Mr Justice Hope. The orders of the court are the application is dismissed with costs. Counsel for the Appellant: J Campbell QC and J Sexton Solicitor for the Appellant: Moore and Bevins Counsel for the Respondent: B Lynch Solicitor for the Respondent: Bruce Donald (ABC)