HARKIANAKIS v SKALKOS and ORS (No 2) [1997] NSWCA 137

HARKIANAKIS v SKALKOS and ORS (No 2)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, POWELL and BEAZLEY JJA 23 September 1997, 15 October 1997

[1997] NSWCA 137

Contempt of Court — penalty — publication of article relating to pending defamation proceedings — nature and seriousness of contempt — relevance of absence of intent to interfere with the course of justice — objective circumstances — relevance of opponent's apology — appropriate costs order where claimant partly successful

Mason P On 25 June 1997 the Court made orders:-

1. dismissing the claimant's application in relation to the article published in the "New Country" newspaper of 20 July 1996; and

2. declaring that the first and third opponents were guilty of contempt in relation to the article published in the "Greek Herald" newspaper of 22 July 1996.

The Court held that the article dated 22 July 1996 had not been published with intent to subject the claimant to improper pressure. However, the majority concluded that the article had a tendency to deter the claimant in his prosecution of the defamation proceedings between the parties, and to deter a person in the situation of the claimant from continuing to prosecute similar proceedings. The gravamen of the contempt was the public vilification of the claimant because he was a litigant. The Court also held that the claimant had not established his alternative claims that the two publications had, as a matter of practical reality, a tendency to deflect potential witnesses or jurors from their duties in relation to the principal proceedings.

On 23 September the matter came before the Court to deal with the outstanding issues of penalty and costs.

Evidence was led on behalf of the opponents addressing inter alia the circumstances in which the publication came to be made. Reference will be made to the detail of this evidence in its proper context. Senior counsel for the opponents also offered to the Court an apology on behalf of the opponents concerned.