Medium Neutral Citation:
Balzola v Burns  NSWCATAD 246
6 July, 14 October 2016
Date of orders:
31 October 2016
31 October 2016
Administrative and Equal Opportunity Division
Marks ADCJ, Principal Member
Charge of contempt – application by legal practitioner for finding of contempt against party to proceedings -principles applying to contempt in the face of the Tribunal-held contempt not established-application dismissed
Civil and Administrative Tribunal Act, 2013, ss73, 102
District Court Act, 1973, ss199, 200, 202
Anti-Discrimination Act, 1977 (NSW)
Burns v Sunol  NSWCATAD 178
Coward v Stapleton (1953) 90 CLR 573
Attorney-General v Leveller Magazine  AC 440
Industrial Registrar of NSW v The Uniting Church in Australia Property Trust (NSW)  NSW IRComm 387
Harkianakis v Skalkos (1997) 42 NSWLR22
Attorney-General v Times Newspapers  AC 273
Bhagat v Global Custodians Ltd  NSWCA 160
John Fairfax and Sons v The Police Tribunal (1986) 5 NSWLR 465
Scott v Scott  AC 417
Fraser v The Queen  3 NSWLR 212
Re William Thomas Shipping Co Pty Ltd  2 Ch 368
The Queen v Payne  1 QB 577
Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354
Wilshire-Smith v Voltino Bros Pty Ltd  FCA 138
Attorney General of NSW v Dean (1990) 20 NSWLR 650
Prothonotary of the Supreme Court of NSW v Katelaris  NSWSC 389
Robert Balzola (Applicant)
Garry Burns (Respondent)
J Loxton (Applicant)
Robert Balzola and Associates (Applicant)
Garry Burns (Respondent in person)
REASONS FOR DECISION
Background to the proceedings
By application brought in this Tribunal, the applicant Robert Balzola seeks a finding pursuant to section 73 of the Civil and Administrative Tribunal Act, 2013 (“the Act”) that the respondent, Garry Burns be found in contempt of this Tribunal.
The application arose out of proceedings before this Tribunal between the respondent as applicant and John Sunol as respondent, in which the applicant in these proceedings had represented Mr Sunol as his solicitor. I shall henceforth refer to those proceedings as “the vilification complaints”. The vilification complaints proceedings were comprised of three complaints initiated by Mr Burns against Mr Sunol alleging, inter alia, homosexual vilification and inappropriate conduct with children by reason of material published on a website operated by Mr Sunol. Those complaints had been referred to the Tribunal by the President of the Anti-Discrimination Board for determination as to whether the material published on the Internet website was unlawful under provisions of the Anti-Discrimination Act, 1977 (NSW). Mr Sunol sought the summary dismissal of each of the complaints under section 102 of the Act on certain grounds.
The applications for summary dismissal came on for hearing before a Principal Member of this Tribunal, A. Britton, on 1 June 2015. The applications were dismissed by order made on 25 August 2015 and on that date the Principal Member published comprehensive reasons for her decision, which are reported at Burns v Sunol  NSWCATAD 178. The reasons for decision consider the relevant principles upon which a complaint might be summarily dismissed, the powers of the President of the Anti-Discrimination Board, the relevant provisions of the Anti-Discrimination Act and the state of the evidentiary material before the Principal Member. The decision involves an application of the relevant legislation and principles to that evidentiary material. The only evidentiary material before the Principal Member consisted of certain documents filed in connection with the proceedings and in connection with the application for summary dismissal, and it appears that no oral evidence was given.
The applicant in these proceedings is noted in the coversheet of the reasons for decision of the vilification proceedings as being the solicitor representing the respondent Mr Sunol. In the course of giving evidence in these proceedings, the applicant said that he appeared with Mr Sunol during the course of the hearing before the Principal Member, assisted his client and, on occasions, assisted the Tribunal directly when asked to do so.
The charge of contempt
These proceedings first came on for hearing before me on 6 July 2016. At that stage, the Application filed by the applicant did not contain any details of the contempt alleged against the respondent.
It is a fundamental concern that where a person is charged with criminal contempt the specific charge against the person must be distinctly stated and the person must be given an opportunity of answering the charge. In Coward v Stapleton (1953) 90 CLR 573 at 579-580 the High Court of Australia said:
[It] is a well recognised principle of law that no person ought be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him; In re Pollard (1868) LR 2 PC 106 at 120; R v Foster; Ex parte Isaacs  VicLawRp 16;  VLR 77 at 81. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott  AC 312 at 315.
Coward v Stapleton was applied in Australian Building Construction Employees’ and Builders Labourers’ Federation & Ors v Minister of State for Industrial Relations & Ors (1982) 43 ALR 189 at 208 and 211. In Attorney-General v Leveller Magazine  AC 440 at 461 Lord Edmund-Davies said a person charged with criminal misconduct including criminal contempt is entitled to know with reasonable precision the basis of the charge.
I indicated to the applicant that I was not prepared to conduct the proceedings unless a charge of contempt and particulars thereof had been formulated by him, and the respondent had been given an appropriate opportunity to consider the charge and particulars, and to respond. Counsel for the applicant, who had very recently been briefed in the matter concurred with this approach and applied for an adjournment. The respondent agreed that the matter should be adjourned for this purpose, and because of such agreement, the adjournment application was granted with orders being made for the filing of evidentiary material and submissions by both parties.
When the matter came on for hearing again on 14 October 2016, the applicant had formulated a charge of contempt. The document refers to the applicant in these proceedings as being the respondent in the proceedings before the Principal Member; and the respondent in these proceedings as being the applicant. This is, of course, incorrect because Mr Sunol is not a party to these proceedings, Mr Balzola is clearly the applicant bringing the charge on his own behalf against the respondent, and Mr Burns is clearly the respondent to the charge. The proceedings were conducted before me on the basis that the incorrect appellations utilised in the form of the charge were disregarded. In order to make sense of the form of the charge for the purpose of reproduction in these reasons for decision, I have inserted the correct reference to the parties. Accordingly, the charge as formulated by the applicant is to be read in the following terms:
The applicant charges the respondent that the respondent is in contempt committed in the face of the Tribunal, in that during the course of the (vilification complaints) proceedings, the respondent by his letter of the 18 August 2015, addressed to the Registrar of the Tribunal, sought to interfere or intended to interfere with the course of justice, by: –
(1) Making insulting and offensive comments, such comments being untrue, false and malicious as to the character and credit of the respondent’s solicitor, Mr Robert Balzola, with the intention of urging upon the Tribunal that it should reject the respondent’s defence in the proceedings on the basis of the respondent’s solicitor was not a fit and proper person to represent the respondent before the Tribunal, the solicitor being a racist, a person about to being (sic) struck off the roll of solicitors and a person who is about to be disciplined by the Tribunal for pernicious behaviour which verges on criminal behaviour; and/or
(2) That the letter sought to discredit and impugn Mr Balzola’s character with the effect that he cannot be trusted and accepted as a person likely and able to fulfil his duties before the Tribunal as a legal practitioner and as an officer of the Supreme Court appearing before the Tribunal and thereby deter the Tribunal from making a fair and just assessment of the respondent’s defence in the proceedings on the basis that anything said on behalf the respondent by Mr Balzola cannot be trusted or believed; and/or
(3) The respondent had exacerbated his alleged breach of the Anti-Discrimination Act by retaining Mr Balzola.
The applicant relies upon the letter from the respondent to the Registrar of the Tribunal dated 18 August, 2015 with reference to File Nos 1410717, 1410281 and 1410195 and, in particular, the applicant relies on the following passages set out in the last three paragraphs of the said letter: –
(1) “I can confirm that Anti-Islam Solicitor Robert Remo Balzola is under investigation by the Legal Services Commissioner in relation to these kinds of activities”;
(2) “…it’s only a matter of time before Mr Balzola loses his licence to operate as a Solicitor”;
(3) ”Mr Balzola will be struck off the Solicitor’s register within some time in the near future”; and
(4) “The good news will be that Robert Balzola will have to come before a Judicial Member of NCAT because of his own pernicious behaviour which I allege verges on criminal.”
The evidentiary background
In order to fully consider the letter which is referred to in the Charge and in the Particulars, it is first necessary to refer to a letter dated 17 August 2015 which had been forwarded by Mr Sunol to the Registrar of this Tribunal with respect to the three vilification complaints matters. The letter acknowledged receipt of three CDs which Mr Sunol said “purported to be the full recordings of the public hearing on July 15, 2015.” The letter complained that the CDs did not contain a record of certain matters which had arisen during the course of the hearing before the Principal Member. Specifically, the letter alleged that “…an important time interval of the public hearing has been censored or deliberately removed from the duplicate recordings I paid for…”. The letter then went on to specify what was alleged to have been omitted from the recording. In general terms, this material was said to cover an incident involving Mr Burns asserting that he had behaved in an inappropriate manner. It was alleged that the Principal Member asked Mr Sunol and Mr Balzola to leave the hearing room “while she engaged in private conversation to persuade (Mr Burns) to calm down and complete the hearing.” The letter stated that Mr Sunol was concerned that untrue information might have been conveyed to the Principal Member in his absence. The Registrar was asked to investigate the matter and to provide a recording of the proceedings without any deletions.
The letter from Mr Burns to the Registrar dated 18 August 2015, the contents of which are at the heart of the Charge in these proceedings, was expressed to be written in response to the letter from Mr Sunol of the previous day. The letter denied that he had participated in any conversation of a private manner with the Principal Member and that he had been left alone with her at any time. He complained that Mr Sunol was a liar and that his letter was “designed by his lawyer through him for the purpose of the Appeal claiming “bias once the complaint against Sunol is substantiated.” In referring to Mr Balzola as the solicitor for Mr Sunol, Mr Burns described him as being an “Anti-Islam Solicitor”. The letter then concluded with the three references to Mr Balzola which are set out in the Charge particulars.
The Tribunal records indicate that there was, in fact, no hearing conducted on 15 July as asserted in the letter from Mr Sunol of 17 August, and that the hearing date was 1 June 2015. The letter of 17 August preceded publication of the reasons for decision by eight days.
The respondent conceded during the course of the hearing that he was the author of the letter of 18 August 2015, and I find that he communicated it to the Registrar on or about that date.
Counsel for the applicant asserted that I should infer that the letters of 17 and 18 August were brought to the attention of the Principal Member by the Registrar. I am not prepared to make any such inference. The letter of 17 August was directed solely to the contents of a recording of the proceedings, and as to whether anything had been omitted from it. It was not addressed to the Principal Member, and involves a matter solely within the province of the Court Reporting Service. There is nothing contained within the reasons for decision which would give any hint that this was a matter which had been brought to the attention of the Principal Member some eight days before the publication of her reasons, and more than two months after the hearing. Applying the relevant standard of proof, which I shall shortly discuss, no such inference can be drawn.
I admitted into evidence an affidavit sworn by the applicant dated 31 May 2016 for the purpose of describing the context in which the alleged contemptuous material was created by the respondent. It annexes a number of extracts from the respondent’s website entitled “Garry Burns Gay Anti-Discrimination Activist” dating back to September 2014. These extracts include criticism of the applicant for representing certain clients opposing the construction of a mosque in the ACT and Bendigo, labelling him as “Anti-Islam Solicitor Robert Balzola”, urging persons not to use his services, and referring to a number of matters heard in this Tribunal in which the applicant acted as solicitor for a party opposing the respondent declaring that “Anti-Islam Solicitor Robert Balzola loses another encounter.” Another annexure is a copy of an email from the respondent to the Islamic Council of NSW which refers to migration agency services provided by the applicant, and informing the Council that the applicant “uses Islam for the pre-dominant purpose of inciting hatred against Muslim Australians.” The annexures also contain references to media releases issued by the respondent. Included is an email from the respondent to the Sydney Morning Herald dated 27 September 2014 in which he refers to anti-discrimination proceedings taken by him against another person represented by the applicant, again referring to the applicant as an “Anti–Islam campaigner”. There are other documents in similar vein which I shall not describe.
By emails dated 14 October 2014 which appear to be addressed to a number of NSW parliamentarians and to the Commissioner of Police, the respondent refers to the fact that the applicant is the solicitor for a named client in connection with anti-discrimination proceedings brought by the respondent. The email contains a number of scurrilous, irrelevant and prima facie defamatory references to the applicant which I shall not dignify by repeating them.
By email from the respondent to the applicant dated 22 October 2014, the respondent referred to three named persons whom the applicant was representing in certain matters involving the respondent. He asserted that he would be successful in the proceedings, referred to the clients of the applicant in disparaging terms, and described the applicant in equally disparaging terms. The email finished by referring to men from two named European countries, with whom the respondent had apparently slept, in disparaging terms, and the respondent described himself as “Anti-Discrimination Campaigner and Public Interest Litigant.” The applicant’s affidavit annexes copies of other email communications in the same vein. I should add that the respondent copied the applicant into all these emails.
It is clear from this documentation that there is a history of profound animosity directed by the respondent to the applicant.
For completeness, and although they were not the subject of any controversy during the course of the hearing, I note the following:
The respondent willingly personally appeared at each of the two hearings before me.
The respondent was at all times fully informed of the contents of the charge and particulars ultimately brought against him and participated in the hearings representing himself.
The jurisdiction and powers of the Tribunal in relation to contempt
This Tribunal is a statutory tribunal, and its jurisdiction and powers are circumscribed by the provisions of the Act. Relevantly, they are to be found in section 73 which is in the following terms:
73 Contempt of Tribunal
(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.
Note: Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).
(2) A person is guilty of contempt of the Tribunal if the person does or omits to do anything that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.
(3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.
(4) For the purposes of this section:
(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and
(b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and
(c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.
Note: Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.
(5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.
(6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.
Accordingly, the stated provisions of the District Court Act are taken to apply to the jurisdiction and powers of the Tribunal to deal with contempt, modified as set out in section 73. Those provisions are in the following terms:
(1) In this section,
“contemnor” means a person guilty or alleged to be guilty of contempt of court committed in the face of the Court or in the hearing of the Court.
(2) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court committed in the face of the Court or in the hearing of the Court, the Court may:
(a) by oral order direct that the contemnor be brought before the Court, or
(b) issue a warrant for the arrest of the contemnor.
(3) Where the contemnor is brought before the Court, the Court shall:
(a) cause the contemnor to be informed orally of the contempt with which he or she is charged,
(b) require the contemnor to make his or her defence to the charge,
(c) after hearing the contemnor, determine the matter of the charge, and
(d) make an order for the punishment or discharge of the contemnor.
(4) The Court may, pending disposal of the charge:
(a) direct that the contemnor be kept in such custody as the Court may determine, or
(b) direct that the contemnor be released,
and such a direction is sufficient authority for the contemnor’s being kept in custody or released, as the case may be.
(5) The Court may give a direction under subsection (4) (b) on terms, which may include a requirement that the contemnor give security, in such sum as the Court directs, for his or her appearance in person to answer the charge.
(6) A warrant for the arrest or detention under this section of a contemnor shall be addressed to the Sheriff or a bailiff and may be issued under the hand of the Judge constituting the Court.
(7) The Court may punish contempt by a fine not exceeding 20 penalty units or by imprisonment for a period not exceeding 28 days.
(8) The Court may 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 sum as the Court may approve for good behaviour and performs the terms of the security.
200 Fines under sec 199
(1) A fine imposed under section 199 is payable to the registrar for such proclaimed place as the Court directs.
(2) Payment of a fine imposed under section 199 may, if the Court so orders, be enforced, subject to the civil or criminal procedure rules, as if the amount of the fine were a judgment debt, the person upon whom the fine was imposed were a judgment debtor and the registrar were a judgment creditor.
(3) The amount of any fine paid to or recovered by the registrar under this section shall be paid to the Consolidated Fund.
202 Stay of contempt proceedings
(1) At any stage of any proceedings under section 199 or 200, the Court may, on terms, order that the proceedings be stayed.
(2) Where the Court orders that proceedings be stayed under subsection (1) and an appeal is brought under section 201, the stay of proceedings shall continue until the appeal is disposed of or until the Court or the Supreme Court otherwise orders.
(3) Except as provided in this section or as directed by the Supreme Court, an appeal under section 201 shall not operate as a stay of proceedings.
Principles applying to contempt proceedings
Whether the respondent is guilty of contempt of the Tribunal is to be determined by applying the accepted common law principles as established by relevant authorities in this area. The charge brought against the respondent was that he was guilty of contempt in the face of the Tribunal. It is hopefully not necessary to cite authority that such asserted contempt is to be treated as criminal contempt, incorporating the necessity to establish proof to the criminal standard. Such contempt may be contrasted with civil contempt which occurs, by way of example, in circumstances where a party to proceedings has refused to comply with a court order.
I have not been referred to any authority which deals with the particular circumstances of these proceedings involving, as they do, an attack on the integrity of a legal practitioner representing a party. Accordingly, my review of relevant authorities will need to examine the general principles applying to contempt in greater detail than might otherwise be required.
I had occasion to deal with the relevant principles applying to criminal contempt when sitting as a member of a Full Bench of the Industrial Relations Commission of New South Wales in Industrial Registrar of NSW v The Uniting Church in Australia Property Trust (NSW)  NSW IRComm 387. Rather than attempting to paraphrase my summary of the relevant principles in those proceedings, and the discussion of a number of important authorities, I have set out an extract hereunder, with modifications necessitated by the particular circumstances of these proceedings. The extract contains a detailed examination of some aspects of the legal principles dealing with contempt, and I shall refer to many of these detailed matters in determining the outcome of these proceedings.
31 ……… Criminal contempt involves “an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.” (per Lord Diplock in the House of Lords in Attorney-General v Leveller Magazine  AC 440 at 449.) The interference with the administration of justice may take the form of frustration of the attainment of justice either in particular proceedings “or by deterring other people from having recourse to courts of justice in the future for the vindication of their lawful rights or for the enforcement of the criminal law.” (per Lord Diplock at 449). There are varying forms of conduct which have been said to constitute contempt. That which has been most commonly dealt with in decided cases has been the publication of material either before or during the course of actual court proceedings. Some of the conduct complained of has been said to be directed to the parties to the proceedings themselves; other conduct has been said to be directed to the court (including jurors) or the public generally. Another major category of contempt is the adverse treatment of witnesses either before or after the trial.
32 A general statement of principle which is useful in understanding the background against which these proceedings are being conducted is contained within observations made by Lord Diplock in the House of Lords in Attorney-General v Times Newspapers  AC 273, commencing at 307. His Lordship said:
My Lords, in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it, are essential if citizens are to live together in peaceful association with one another. ‘Contempt of court’ is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms.
One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a ‘civil contempt.’ The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement.
All other contempts of course are classified as ‘criminal contempts,’ whether the particular proceedings to which the conduct of the contemnor relates are themselves criminal proceedings or are civil litigation between individual citizens. This is because it is the public interest in the due administration of justice, civil as well as criminal, in the established courts of law that it is sought to protect by making those who commit criminal contempts of court subject to summary punishment. To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also – and this more immediately – the particular interests of the parties to the case. In this respect criminal contempt of court resembles many ordinary criminal offences. Such as theft or offences against the person or property, by which the interests of the victim himself are prejudiced more immediately than those of the public at large.
In the nature of things the applicant would be primarily concerned with the effect of the alleged contempt upon his own interests in that litigation, and the argument addressed to the court would be mainly directed to this. This is reflected in the judgments in the numerous cases on contempt of court which appear in the reports. With relatively few exceptions, they concentrate upon the particular prejudice likely to be caused to a party in that litigation itself by the particular conduct that is the subject of complaint. There is an abundance of empirical decisions upon particular instances of conduct which has been held to constitute contempt of court. There is a dearth of rational explanation or analysis of a general concept of contempt of court which is common to the cases where it has been found to exist. This is not surprising since until the Administration of Justice Act 1969 there was no appeal in cases of criminal contempt. The decisions are those of courts of first instance whose main function is to reach decisions upon the particular facts presented to them in the particular case with which they are dealing.
The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they 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. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court. (at 307-9)
33 In considering matters of this kind the courts have, however, been careful to balance the necessity to preserve the attainment of justice against fundamental rights of free speech and rights to be free to discuss or even criticise court proceedings and those who are engaged in them. This requirement to balance what may be competing, and indeed, conflicting interests all of which are designed to enhance the public interest, has resulted in a necessarily cautious approach to be taken to a determination of whether conduct constitutes criminal contempt. This matter was summarised by Lord Morris in Attorney-General v Times Newspapers (previously referred to) commencing at 302 in the following manner:
My Lords, the phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits. In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity; it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted. But as the purpose and existence of courts of law is to preserve freedom within the law for all well- disposed members of the community, it is manifest that the courts must never impose any limitations upon free speech or free discussion or free criticism beyond those which are absolutely necessary. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely outweighs another aspect of the public interest. Certain aspects of the public interest will be relevant in deciding and assessing whether there has been contempt of court. But this does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a design to bring about a relief of some distress that was a matter of public sympathy and concern. There can be no such thing as a justifiable contempt of court.
Various types of behaviour which in the past have been brought to the notice of courts as involving ‘contempt’ have furnished illustrations of circumstances which have been regarded by courts as requiring condemnation. A study of decided cases helps to show the attitude of courts at different times and a certain pattern emerges. I doubt whether it is either desirable or possible to frame any exact or comprehensive definition or to formulate any precise classifications. Nevertheless the cases illustrate certain general principles as to what is or is not permissible and courts have as a rule found no difficulty in deciding whether a complaint is or is not well founded. Certain examples may be given. Grossly irregular behaviour in court could never be tolerated. Nor could publications which would prejudice a fair trial. Thus if someone was awaiting trial on a criminal charge much harm could be done by the publication of matter which might influence potential jurors to the prejudice of the accused. There might be steps taken wrongfully to influence witnesses – as by methods of intimidation or of improper inducement. So also there might be conduct which was calculated so to abuse or pillory a party to litigation or to subject him to such obloquy as to shame or dissuade him from obtaining the adjudication of a court to which he was entitled. In all such situations a court would have to ascertain the precise facts and then, as was said in the Divisional Court, to consider them in the light of all the surrounding circumstances. The surrounding circumstances would include all those relating to the nature of any pending litigation and the stage it had reached. A court would not be likely to listen to a complaint that lacked substance. Indeed when the Divisional Court referred to the question ( Q.B. 710, 725) whether words complained of would ‘create a serious risk that the course of justice may be interfered with’ or when Lord Denning M.R, at p. 739, said that ‘there must appear to be “a real and substantial danger of prejudice” to the trial of the case or to the settlement of it’ useful reminders were given of the fact that ‘contempt’ is criminal conduct. According to the measure of its gravity it may call for punishment or penalty going beyond the payment of costs. A court will therefore only find ‘contempt’ where the risk of prejudice is serious or real or substantial. If a court is in doubt whether conduct complained of amounts to ‘contempt’ the complaint will fail.(at 302-3).
35 There are a number of other important English authorities which have discussed contempt as well as several important Australian authorities, including decisions of the High Court of Australia. However, the necessity to embark upon a detailed analysis and consideration of the authorities has been obviated because that task has recently been discharged by Mason P in the New South Wales Court of Appeal in Harkianakis v Skalkos (1997) 42 NSWLR 22. Beazley JA agreed with the reasoning of Mason P. Powell JA delivered a separate judgment.
36 The proceedings in Harkianakis involved a consideration of whether material published in a newspaper constituted contempt in that there was an intention to interfere with the course of justice in existing defamation proceedings by subjecting the claimant to improper pressure not to proceed in those proceedings. Whilst not wishing to detract in any way from the comprehensive and incisive analysis of the authorities in this area, it is possible to discern some statements of basic principle from the judgment of Mason P which will be of assistance in the determination of these proceedings. His Honour’s analysis and consideration of the relevant authorities and his Honour’s conclusions as to questions of principle to be drawn from them are respectfully adopted in determining these proceedings. They are:
- Where the charge brought against the respondents is an allegation of criminal contempt, it must be established beyond reasonable doubt.
It is not necessary to determine whether or not there was an intention on the part of the respondent to interfere with the proper administration of justice. It is sufficient for the applicant to prove to the requisite criminal standard that the conduct complained of has, “as a matter of practical reality”, the impugned tendency to interfere with the course of justice in the context of these proceedings…..
There is “a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material.” Relevantly for these proceedings, improper pressure will include a tendency to deter the applicants in the substantive proceedings from continuing with the litigation, including the potential for “interference in the litigant’s freedom to conduct the litigation as he or she chooses.” Relevantly this will include a tendency to interfere improperly with negotiations towards the settlement of a pending suit. In this context it is not necessary that there be demonstrated actual interference with the conduct of proceedings by a litigant but merely a tendency to so interfere.
There is an unresolved question as to whether one measures the tendency to interfere with litigation by reason of “the capacity to withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of ‘ordinary’ fortitude who might be capable of influence by similar pressure applied in similar circumstances.” (Mason P tended towards the latter approach as being correct, although his Honour said that it was not necessary that he resolve that issue in those proceedings). In Bhagat v Global Custodians Ltd  NSWCA 160, after referring to Harkianakis and other authorities, Spigelman CJ observed at par :
These authorities are concerned with the law of contempt by publication, in which context different considerations arise when balancing the public interest in freedom of speech against the public interest in the administration of justice. In such cases the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent. At least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper. At least in such a context, I do not see why the Court must choose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety.
In the same case, in agreeing with the Chief Justice, Ipp AJA said at par :
[A]t least in cases of contempt of Court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications.
- In considering the conduct which would constitute improper pressure on litigants and interference with their ability to litigate their case, Mason P concluded that: “Pressure may be actual or threatened, conditional or unconditional. What is done (or threatened) may be lawful or unlawful conduct. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper….” (at 30).
- In determining whether conduct (whether constituted by publication of material or otherwise) has the tendency to bring improper pressure to bear on a litigant by reason of its characteristics, it is necessary to consider the total context within which the alleged improper conduct occurs, and to take into account that there will be “special defences such as fair comment and justification” which are available.
In determining the proper approach to the matter the following statement of principle enunciated by Lord Reid in Times Newspapers case (at p 294) is apposite:
The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice.
- The decided cases, in determining whether publication of material has amounted to contempt by bringing to bear improper pressure on litigants, have considered matters such as whether or not the publication has constituted “an unbalanced and scurrilous attack lacking in any justification ….”, whether there is “vehemence”, “unrestrained language and evocative imagery”, whether the litigant has been held up to “public obloquy and derision”, whether the language used in the publication can be described as “intemperate”, “execration”, and “public ridicule”, and the like.
The onus of displacing the necessity to have regard to considerations of public policy rests on the prosecution. So too does that of displacing any justification defence fairly open on the facts. The mere presence of an inaccurately stated fact or florid language will not suffice to establish contempt. The whole context needs to be determined before what is said and the manner it is expressed can be identified as having crossed the line between the offensive and the contemptuous. But that line is crossed when it is proved that the publication has the tendency to deter and where a party is vilified without justification because he or she is a litigant or because of the litigation or the allegations made in it. (at 42)
38 In view of the fact that the majority of the charges against the respondent are framed by reference to the bringing to bear of unreasonable pressure upon the applicants in the substantive proceeding in the way particularised, it is appropriate to refer to decided cases which have discussed the nature of the pressure required to constitute contempt.
39 In John Fairfax and Sons v The Police Tribunal (1986) 5 NSWLR 465 at 471, Mahoney JA stated that a superior court had the power and the duty to ensure that justice is done according to the law in respect of those seeking the exercise of its jurisdiction, citing Viscount Haldane LC in Scott v Scott  AC 417 at 437 for the proposition that it may be necessary for this purpose to make orders for the protection of those relevantly involved in proceedings before the court. Mahoney JA went on to refer to an attempt, by threat of a detriment, to deter a person from enforcing a right which he has, which likewise may, in appropriate circumstance, be punished as contempt, citing the cases referred to in Fraser v The Queen  3 NSWLR 212.
41 As already noted above, Mason P in Harkianakis conducted a general review of the law in relation to contempt and referred to the need to demonstrate, to the criminal standard, that a contempt had “as a matter of practical reality, a tendency to interfere with the course of justice in a particular case”. At 28 et seq Mason P continued:
The cases have recognised a category of criminal contempt in which improper pressure is placed on the party to court proceedings through the public dissemination of material … the gravamen of the contempt is the tendency to deter both the individual litigant and litigants similarly placed who wished to seek curial vindication of their rights. … the gravamen of this particular type of contempt is the potential interference of the litigant’s freedom to conduct litigation as he or she chooses. The right to bring an action in relation to a civil matter is really a bundle of rights that includes the freedom to originate, not to originate and to negotiate rather than litigate a settlement of the dispute, and/or withdraw an action or a defence after setting it in motion. The latter option may be exercised up until the time the court delivers judgment. The modern pre-occupation with ‘alternative dispute resolution (ADR)’ recognises that settlement of litigation is as much an aspect of the curial process as combat to the bitter end. Most civil proceedings are settled out of court, and this is in the Public interest for several obvious reasons. It follows that (improper): ‘… interference with negotiation towards a settlement of a pending suit is no less a contempt of court than interference, physical or moral, with a procedural situation in the strictly forensic sense (Sunday Times case at 317), per Lord Simon (see Attorney-General v Times Newspapers Ltd  AC 273).
42 Later, at 32, his Honour stated:
In an adversary system, the law’s concern is to protect from improper interference the litigant’s freedom to choose whether or not to initiate, continue or discontinue legal proceedings. It is irrelevant that the principal proceeding may be doomed to success or failure.
43 In Re William Thomas Shipping Co Pty Ltd  2 Ch 368 Maugham J considered the effect of a published interview criticising the application for the appointment of a receiver in which a director expressed the view that the appointment had smashed the goodwill and organisation of a business in a day, and no one in shipping circles could understand the line of conduct. At 376, his Honour stated:
Dealing as I am here, with a case very different from that which came before the court in The Queen v Payne  1 QB 577, I must express my opinion that the jurisdiction of the court is not confined to cases where the order of the court or the future orders of the court are likely to be directly affected in some way. If it was so confined, I doubt whether there would be any limit to what a litigant, or some other person, might say pending the hearing of an action in the Chancery Division, unless, indeed, it could be shown that possible witnesses in the case were being interfered with. I think that to publish injurious misrepresentations directed against the party to the action, especially when they are holding up that party to hatred or contempt, is liable to affect the cause of justice because it may, in the case of the plaintiff, cause him to discontinue the action from fear of public dislike, or it may cause the defendant to come to a compromise which he would otherwise not come to, for like reasons. I think that consideration has peculiar weight in the case of a representative action such as this, being an action of a kind which is generally brought in the Chancery Division.
44 In that case, his Honour had particular concern for a plaintiff with a small stake who, by pressure of adverse comment about his proceedings, may be improperly persuaded to take action in the running or settlement of the case which was not in the interests of the other debenture holders whom he was representing.
45 In Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354, Burchett J, at 362, stated:
‘Improper pressure’ or ‘improper interference’, used in some of these authorities to identify cases where contempt is committed by attempt to influence or deter a party, has the disadvantage of a degree of imprecision. How much this is a problem for the law of contempt as a practical matter may be a subject for debate. As I understand the authorities, some action having an actual tendency to interfere with the administration of justice (including deterrence of a party) is taken with the intention of so interfering whether or not it would otherwise be an improper or a proper action, that tendency and that intent may be enough to establish a contempt of court. But as Mason P pointed out in Harkianakis at 28, intention to interfere with the due administration of justice is not necessary to constitute a contempt. Where such an intention is not shown, the question whether any pressure was or was not improper may be the crucial issue. Thus, in Wilshire-Smith v Voltino Bros Pty Ltd  FCA 138; (1993) 41 FCR 496, a case in which (as appears at 506) there was no intention to interfere with the due administration of justice, but what was done had that tendency, O’Loughlin J said (at 505):
The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate.
46 In Wilshire-Smith, O’Loughlin J, at 505, in dealing with the notion of pressure said:
In assessing whether the requisite degree of inhibition might be calculated to exist there must be some real risk for there will be no contempt if the possibility of influence is remote. On the other hand, the assessment must be made in an objective setting. It is not to the point to acknowledge that in this case the company has not been overborne. If that was a factor to be taken into consideration then no litigant who was prepared to complain would ever establish the existence of a risk to inhibition. The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate. If the conduct amounted to such improper pressure it would not matter that it failed to achieve its objective.
There is one further decided case to which reference should be made. It is a decision of Hoeben J (as his Honour then was) in the Supreme Court of NSW in Prothonotary of the Supreme Court of NSW v Katelaris  NSWSC 389. The matter came before Hoeben J by summons filed by the Prothonotary seeking declarations in the following terms:
- A declaration that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury’s conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant said in the presence of the jury “Regrettably, the next generation will suffer for your ignorance”, which statement had a tendency to interfere with the administration of justice.
A declaration that the defendant is guilty of contempt of court in that at the District Court at Newcastle on 8 March 2006, following the jury’s conviction of the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, the defendant made a statement outside the court in the presence of the media, namely “Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales” which statement had a tendency to interfere with the administration of justice.
The particulars of contempt alleged in the summons were as follows:
- On 2 March 2006, at the District Court at Newcastle, the Crown presented an indictment against the defendant on a charge of cultivation of a large commercial quantity of prohibited plants, namely cannabis, between 3 December 2004 and 27 January 2005, at Salisbury in the State of New South Wales (ss 23(2)(a), 33(3)(b) Drugs Misuse and Trafficking Act 1985) (the charge).
The defendant pleaded not guilty to the charge, a jury was empanelled and the trial proceeded on 2 March 2006, 3 March 2006, 6 March 2006 and 8 March 2006.
The defendant represented himself throughout the course of the trial.
On 8 March 2006, the jury returned a verdict of guilty in relation to the charge.
After the trial judge had discharged the jury, and whilst the jury were in the process of leaving the court, the defendant said to the jury, “Regrettably, the next generation will suffer for your ignorance” (the first statement).
The first statement visibly upset some of the jurors.
After leaving the court, the defendant participated in an interview with the local television station, NBN Channel 3 (the interview).
In the course of the interview, the defendant made the following statement (the second statement):
“Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales.”
- At the time of the interview it was likely that the interview would be broadcast on the NBN television news that evening.
The conduct of the defendant in making the first statement and the second statement had a tendency as a matter of practical reality to interfere with the administration of justice in that:
(i) the first statement, made in the presence of the jurors, was abusive and had a tendency to deter those jurors in relation to their participation in future trials;
(ii) the first statement was likely to be reported by the media and thereby had a tendency to deter persons generally from participating as jurors in future trials;
(iii) the second statement was made to the media, and was likely to be reported by the media and thereby had a tendency to deter persons generally from participating as jurors in future trials;
(iv) the second statement had a tendency to undermine public confidence in the administration of justice by suggesting that jurors had not properly discharged their duties in the proceedings.”
In the course of his judgment, Hoeben J said:
30 It is trite law that proof of an intention to interfere in the administration of justice is not an ingredient of the charge. This question was comprehensively analysed by the Court of Appeal in Attorney General of NSW v Dean (1990) 20 NSWLR 650. At 655E the court said:
“The opponent repeatedly laid stress upon the absence of any intention to interfere in the administration of justice. However, it is clear that although contempt is criminal in nature, proof of an intention to interfere in the administration of justice is not an ingredient of the charge.”
At 656A the Court said:
“The matter of overriding importance is to prevent interference with the proper course of trials; that interference is just as real and needs to be prevented, whether it is intentional or not. At all events, the law binding on and applied by this Court is clear. It is sufficient that the prosecution show that the alleged contemptor had the intention to make the statements which, objectively, had the requisite tendency to interfere in the fair trial of the accused.
The statements must be looked at objectively to determine whether they were calculated to interfere with the course of justice. It is necessary for the prosecutor to prove that tendency beyond reasonable doubt. The absence of the specific intent by those words, to interfere in the administration of justice is no answer or defence to a charge of contempt. On the other hand, the presence or absence of such an intention will be relevant to the court’s decision as to penalty…
The opponent’s ignorance of the law of contempt cannot excuse him from its obligation. We have concluded that when the opponent made the three statements complained of he did so with intention that they should be included in the material, upon the basis of which the media representatives would later make a decision to compose their program. In the circumstances in which the statements were made before cameras, microphones and other recording equipment and thirty journalists, it is completely unrealistic to suggest that the opponent should be treated as if he were having a private conversation. The whole point of the media interview, was the communication of the information imparted to large numbers of people in the community through the medium of the journalists at the press conference and their various recording and broadcasting equipment.”
31 In this case it is clear that the defendant intended to use the words which he said, although he did not have the specific intent of interfering with the administration of justice. I do not find, however, that the defendant’s statements, both in court and to the journalists, were premeditated or planned.
32 Because these are criminal proceedings, the standard of proof is beyond reasonable doubt. The test for contempt is whether the conduct in question had a tendency to interfere with the administration of justice. For the offence to be made out, I have to be satisfied beyond reasonable doubt that either or both the first statement and the second statement had as a matter of practical reality an objective tendency to interfere with the administration of justice. The test is an objective one, so that the person to whom the conduct or words were directed does not necessarily have to be intimidated or deterred. All that is necessary is that the requisite tendency is present.
33 The cases recognise that it is a contempt of court to threaten or take reprisals against judges, witnesses and legal practitioners involved in the judicial process in relation to particular legal proceedings. As the extract from Re Johnson makes clear, that principle applies equally to jurors. Action taken by way of reprisal may constitute a contempt whether or not proceedings remain pending because such conduct may interfere with the administration of justice as a continuing process by discouraging or influencing participation of such persons in future legal proceedings.
Observations of Lord Denning MR at 719 and of Pearson LJ at 728 were to similar effect.
36 I am satisfied beyond reasonable doubt that a contempt of court has been established in relation to both the first statement and the second statement.
37 In relation to the first statement, … as the trial judge told the jury in this case when they were discharged, the jury plays a critical role in the administration of justice in this State. It performs an onerous and difficult task carrying with it great responsibility. It is therefore important to ensure that the integrity of persons who are empanelled to sit on a jury and persons who may be so empanelled in the future is not called into question or subjected to abuse. Conduct which has the tendency to deter jurors from serving again and to deter potential jurors from serving at all has as a matter of practical reality an objective tendency to interfere with the administration of justice.
38 The first statement by the defendant was clearly addressed to the jury. Viewed objectively, it constituted a form of abuse directed at the jury by way of reprisal for their verdict. It had the necessary tendency to influence and deter those jurors and jurors generally from participating in future trials and as such it amounted to a contempt of court.
39 In respect of the second statement this was made to a group of journalists, accompanied by television cameramen, with the clear intention that the remarks be promulgated as widely as possible. In that regard the passages from Attorney General for NSW v Dean previously quoted are apposite – “the whole point of the media interview was a communication of the information imparted to large numbers of people in the community through the medium of the journalists at the press conference and their various recording and broadcasting equipment.”
40 In the second statement the defendant’s characterisation of the jurors as sheep constituted a clear and intentional attack upon their independence, integrity and impartiality. The second statement can also be correctly characterised as a form of abuse and directed at the jury by way of reprisal for their reaching a guilty verdict. The clear message for potential jurors who might have seen the report on the television news was that serving on a jury was a thankless task for which abuse and public humiliation were likely consequences. The second statement had as a matter of practical reality a real tendency to undermine public confidence in the administration of justice by suggesting that the jurors had not properly discharged their duties in the proceedings.
41 It follows that each of the first and second statements constituted a separate and clear contempt of court. I make declarations in accordance with paragraphs 1 and 2 of the summons. The defendant is convicted of the two counts of contempt which have been brought against him and as are particularised in the summons.
I add for completeness that his Honour imposed a suspended prison sentence on the defendant of 12 months’ imprisonment.
The applicant’s submissions
In written submissions, counsel for the applicant described the allegations made by the respondent as contained in the letter to the Registrar as “false, untrue and malicious.” In oral submissions, he also described them as being defamatory. Counsel ascribed two reasons why the respondent had made these allegations. He said that firstly, by making these “insulting, offensive and untrue malicious statements”, the respondent had sought to urge the Tribunal to reject his client’s defence to the complaint by reason of the impugned character and credit of his client’s “solicitor of choice.” The second reason was that the letter “sought to discredit and insult Mr Balzola with the effect that he cannot be trusted and accepted as a person likely and able to fulfil his duties before the Tribunal as a legal practitioner and as an officer of the Supreme Court appearing before the Tribunal. The letter seeks (to) deter the Tribunal from making a fair and unbiased assessment of the respondent’s defence in the proceedings on the basis that anything said on behalf of (Mr Sunol) cannot be trusted or believed and further, (Mr Sunol) has exacerbated his breach (of the anti-discrimination legislation) by retaining the applicant.”
The submissions emphasised the duty of legal practitioners appearing before a court, and also a tribunal such as this Tribunal, to act with integrity, candour and honesty. It was said that by falsely attacking the applicant’s character and reputation as a solicitor the respondent had sought to deter the Tribunal from accepting the applicant as a solicitor exhibiting these characteristics, and in this way was interfering with the administration and course of justice.
It is first necessary to consider the contents of the letter of 18 August 2015 which constitute the particulars of the Charge. It contains allegations that the applicant conducted himself in a manner which is antagonistic to those practising Islam, that the applicant was under investigation by the Legal Services Commissioner in relation to his anti-Islam activities, that he would shortly be struck off the roll of Solicitors and that he had acted in a pernicious manner which “verges on criminal.”
As I have previously indicated, the respondent conceded that he was the author of the letter and the author of the material contained within it. Such evidence as has been led in these proceedings is to the effect that the only investigation about the applicant conducted by any authority concerning the applicant’s practise as a solicitor was a result of a complaint brought against him by the respondent, which was dismissed. There is therefore no demonstrated substance to the assertion that the applicant was under investigation or was in any danger of having his continued right to practice compromised. Furthermore, the only reference to any activities undertaken by the applicant with respect to the allegation that in some way he is “Anti-Islam” is to the fact that he represented two community groups opposing the construction of a mosque in two regional areas.
In these circumstances, I am persuaded beyond a reasonable doubt that the statements made by the respondent as contained in the particulars of the Charge were untrue and without foundation. Furthermore, I am persuaded beyond a reasonable doubt that the comments in the statement were malicious, insulting and offensive.
By reference to the authorities which I have set out above in some detail, it may be concluded, as I do, that:
The statements made by the respondent cannot be justified in any sense by reference to any “rights of free speech and rights to be free to discuss or even criticise court proceedings and those who are engaged in them.” (See the extract from the judgment of Lord Morris in Attorney-Gen v Times Newspapers previously referred to).
These statements may fairly be described as “conduct which was calculated so to abuse or pillory (a solicitor representing) a party to litigation or to subject him to such obloquy as to shame or to dissuade him from” representing that party (also based on the judgment of Lord Morris).
Nor can the statements made be justified in any sense by reference to any permitted “discussion of public affairs and the denunciation of public abuses, actual or supposed”.
The decided cases, in determining whether publication of material has amounted to contempt by bringing to bear improper pressure on litigants, have considered matters such as whether or not the publication has constituted “an unbalanced and scurrilous attack lacking in any justification….”, whether there is “vehemence”, “unrestrained language and evocative imagery”, whether the litigant has been held up to “public obloquy and derision”, whether the language used in the publication can be described as “intemperate”, “execration”, and “public ridicule”, and the like. These are matters which apply to the description of the applicant used by the respondent in the letter of 18 August 2015.
The attack on the applicant’s character and reputation initiated by the respondent concerned his representation of his client in proceedings before this Tribunal. Once a legal practitioner has been granted a right to represent his or her client, any undue and irrelevant attack on the character of the practitioner in his or her capacity as representing a client constitutes an attack on the processes of the Tribunal, and in appropriate circumstances, may constitute contempt. Legal practitioners are obliged to protect their reputations so as to be able to continue to attract and represent clients.
I conclude that, prima facie, in all the circumstances of these proceedings that the statements which were directed to the applicant who was the solicitor for Mr Sunol in the vilification complaints proceedings are capable of constituting contempt. I accept and agree with the submissions of the applicant that legal practitioners are required to act with integrity, honesty and candour in representing parties before this Tribunal. By falsely attacking the applicant’s character and reputation as a solicitor the respondent has sought to deter the Tribunal from accepting the applicant as a solicitor exhibiting these characteristics, and in this way was, prima facie, interfering with the administration and course of justice. Furthermore, the conduct of the respondent clearly was directed to the applicant personally in his capacity as solicitor for Mr Sunol. Legal practitioners are generally required to afford representation to persons who seek their services. As such, legal practitioners are entitled to afford representation to whomever they please, and the administration of justice and the management of our legal system is dependent upon these matters of fundamental concern. Any conduct which has the effect, or the tendency to dissuade legal practitioners from performing this valuable public service will, in appropriate circumstances, expose the proponent of such conduct to the risk of prosecution for contempt.
As the authorities to which I have referred to make clear, there is, however, one further fundamental element which must be established in order to conclude that the respondent is guilty of the contempt the subject of the Charge and particulars. In all cases it is necessary for the applicant to prove to the requisite criminal standard that the conduct complained of has, “as a matter of practical reality”, the impugned tendency to interfere with the course of justice in the context of these proceedings. This is usually discharged by demonstrating that the contemptible material complained of has been appropriately and relevantly published. It is the publication of the inappropriate material which creates the prejudice or impediment to the administration of justice. Furthermore, the authorities to which I have referred make clear that there must be a public dissemination of material, which has a tendency to deter both an individual litigant, in this case through his solicitor, and litigants similarly placed who wish to seek “curial vindication of their rights” so as to create a “potential interference of the litigant’s freedom to conduct litigation as he or she chooses.” (Per Mason P in Harkianakis, previously referred to).
Publication was clearly demonstrated, by way of example, in Katelaris. The first statement was published to the jury, albeit they had already been discharged, and the second statement was published to the media.
There is, however, no such publication in the circumstances of these proceedings. The particulars of the Charge are confined to the letter of 18 August 2015. That letter is addressed to the Registrar, and the substance of the letter is in reply to the assertion made by Mr Sunol that omissions of a fundamental kind had been made from CD recordings made available to him and a concern that something of an improper nature might have occurred in the course of the proceedings. The clearly offensive material concerning the applicant was added gratuitously at the end of the letter of 18 August 2015. No inference can be drawn, as I have previously concluded, to the requisite criminal standard, that the person solely charged with determining the proceedings, namely the Principal Member, was informed about or was aware of the contents of that letter and the offensive material contained within it. Nor can it be inferred that the letter came to the attention of anyone other than Registry staff. On this basis, it cannot be concluded to the requisite standard that this limited publication of the offensive material would adversely impact on the administration of justice by the Tribunal.
Arguably, if the Charge and particulars had referred to material of the same offensive nature contained on the respondent’s website, and such material was capable of being linked to proceedings before this Tribunal with which the applicant was concerned as solicitor for a party, contempt might be more readily found to have been committed. However, such is not the case in these proceedings and I conclude that the limited publication of the offensive material to the Registrar is not capable of constituting contempt in all the circumstances of these proceedings. There is insufficient evidence to conclude that there has been an unjustifiable interference with the relevant proceedings before the Tribunal for me to conclude that the applicant has established beyond reasonable doubt by means of the public dissemination of material which is obviously and clearly offensive.
Nor has there been established to the requisite standard of proof that any of the three more general matters identified by Lord Diplock in Attorney-General v Times Newspapers have been established by reason of this limited publication. These are:
The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they 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. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.
Finally, I repeat that “… If a court is in doubt whether conduct complained of amounts to ‘contempt’ the complaint will fail. (Lord Morris in Attorney-General v Times Newspapers (previously referred to).
For all these reasons I conclude that the application must be dismissed.
The respondent did not seek any order for the payment of costs.
The application is dismissed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 October 2016