HER MAJESTY'S ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v RADIO2UE SYDNEY PTY LTD [1993] NSWCA 134

HER MAJESTY'S ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v RADIO 2UE SYDNEY PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and HANDLEY JJA 26 November 1992, 5 March 1993 [1993] NSWCA 134

Costs — Contempt proceeding against radio station and radio broadcaster — Statements in relation to pending criminal trial — Statements held not to be contempt — Statements close to the line — Proceeding dismissed.

Whether order for costs should be made in favour of defendants - Held: Action of broadcaster such that no order for costs should be made.

Mahoney JA This proceeding is before the court to consider what order should bemade in respect of costs. Proceedings were brought by the Attorney General against the defendants charging them with contempt of court: the charge arose out of statements made by Mr Alan Jones on the company's radio station 2UE on 29 July 1991.

On 28 August 1992 this Court held that the charge had not been established and dismissed the summons. In respect of the costs of proceedings the view of the court was expressed by Priestley JA: "If before 11 September 1992 any party seeks to argue for an order for costs, liberty is granted to re-list the summons upon three days notice for argument on the question of costs; otherwise no order as to costs."

The defendants have indicated that they desire to argue the question of costs. Mr Nicholas QC, for the defendants, has submitted that the court should order that the Attorney General pay their costs of the proceeding.

The defendants' submission has been, in substance, that they succeeded in the proceeding, that there is no reason why they should not have their costs and that accordingly the order they seek should be made.

Subject to what I shall say, the principles by reference to which costs are to be dealt with are well established. The argument has proceeded upon the basis that the principles are to be derived from the Supreme Court Act 1970 and that, notwithstanding the criminal nature of a proceeding for contempt, the provisions of and derived from the Supreme Court Act apply: cf Supreme Court Act 1970, s17; Fraser v The Queen (1984) 3 NSWLR 212; Adler v District Court of New South Wales (1990) 19 NSWLR 317.