FEDERAL COURT OF AUSTRALIA

North Australian Aboriginal Legal Aid Service Inc v Bradley

[2001] FCA 908

CONTEMPT OF COURT – Statements made by Chief Minister and Attorney-General at a press conference – Alleged abuse of party to litigation and subjection of that party to improper pressure to discontinue or compromise the proceeding – Alleged dissuasion of potential witnesses – Applicable legal principles – Applicability of the principle subordinating prejudice in litigation to public interest in discussion of public affairs – Analysis of statements made at press conference – Contempt of court found established – Discussion regarding appropriate orders for penalty and costs.

Harkianakis v Skalkos [1997] 42 NSWLR 22 applied.

Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR(NSW) 242 distinguished.

Director of Public Prosecutions v Wran (1986) 7 NSWLR 616 referred to.

Willshire Smith v Votino Brothers Pty Ltd (1993) 41 FCR 496 referred to.

NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INC v HUGH BURTON BRADLEY and NORTHERN TERRITORY OF AUSTRALIA

D 17 of 2001

WILCOX J

24 JULY 2001

DARWIN

THE COURT ORDERS THAT:

1.                  It be adjudged and declared that Denis Burke, Chief Minister and Attorney-General of the Northern Territory of Australia, is guilty of contempt of court in relation to statements made by him during the course of a press conference held on 7 June 2001 at Darwin.

2.                  Within one month from the date of this order, the said Denis Burke pay to the Registrar of the Court the sum of ten thousand dollars ($10,000) by way of penalty for the said contempt.

3.                  The said Denis Burke pay to the applicant, North Australian Aboriginal Legal Aid Service Inc, the costs incurred by the said applicant in relation to the notice of motion dated 12 June 2001 alleging contempt of court, except for costs incurred in connection with the adjourned hearing on 15 June 2001.

4.                  The said applicant pay to the said Denis Burke the costs incurred by him in relation to the adjourned hearing on 15 June 2001.

5.                  The costs payable under orders 3 and 4 be assessed or taxed on the basis that they are to include all costs incurred by the party entitled except insofar as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, the party entitled will be completely indemnified for its or his costs by the party bound by the order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

WILCOX J

1                     A charge of contempt of court has been laid against the Honourable Denis Burke MLA, Chief Minister and Attorney-General of the Northern Territory of Australia.

Background

2                     The charge arises in connection with a proceeding (“the principal proceeding”) instituted on 20 April 2000 in the Supreme Court of the Northern Territory of Australia (as matter no 59 of 2000) and subsequently transferred to this Court. 

3                     The applicant in the principal proceeding is North Australian Aboriginal Legal Aid Service Incorporated (“NAALAS”).  The Originating Motion named one defendant (now first respondent), Hugh Burton Bradley, Chief Magistrate of the Northern Territory.  However, by leave of Olney J (sitting as a Supreme Court judge), an amended Originating Motion was filed on 12 May 2000.  This document added a second defendant (now second respondent), Northern Territory of Australia; that is, the Northern Territory government.

4                     On the same day NAALAS filed a Statement of Claim.  The Statement of Claim alleged the appointment of Mr Bradley, on 27 February 1998, as Chief Magistrate was invalid.  The pleading claimed Mr Bradley was appointed to the office pursuant to “an agreement or arrangement” between the Northern Territory government and himself whereby Mr Bradley would hold the office for a term of two years on terms and conditions that provided a salary and other allowances substantially exceeding those recommended by the Northern Territory Remuneration Tribunal and determined by the Administrator, in a general determination of remuneration and allowances dated 30 January 1998.  The Statement of Claim also alleged the agreed terms and conditions were not disclosed to the public until March 2000.

5                     The Statement of Claim invoked two grounds for its claim of invalidity: improper purpose and lack of power.  The pleaded particulars of these grounds alleged that the agreement or arrangement was made, amongst other purposes, “to defeat the principles of judicial independence enshrined in the Magistrates Act.”

6                     Both defendants filed Defences disputing the claim of invalidity. 

7                     The Northern Territory government also filed an application for summary judgment, or an order staying the principal proceeding or striking out the Statement of Claim.  That application came before Olney J.  It succeeded at first-instance.  On 16 June 2000 Olney J held Mr Bradley’s appointment was valid and, in any event, the Court had no power to interfere with the exercise of the executive act of appointment.  He concluded NAALAS’ case was not arguable and entered summary judgment in the proceeding for the defendants.

8                     NAALAS appealed against that decision to the Court of Appeal of the Northern Territory.  The Court of Appeal (Priestley J, Doyle AJ and Brooking AJ) upheld the appeal. On 16 November 2000 it set aside the order for summary judgment: see Northern Territory Aboriginal Legal Aid Service Incorporated v Bradley and Northern Territory of Australia [2000] NTCA 13.  The Court of Appeal said that, on the facts pleaded in the Statement of Claim, the plaintiff had an arguable cause of action.  The Court summarised the position in this way (at paras 2-4):

“Put summarily we think that on a fair reading the plaintiff’s Statement of Claim alleges that the first defendant was appointed pursuant to an arrangement with the second defendant about what his tenure and remuneration would be, which had the purpose and effect that the first defendant could be subjected, during his tenure, to influence by the second defendant, in the carrying out of his duties, to which he should not be subjected.  We further think it arguable that the power of appointment of magistrates pursuant to the Magistrates Act does not authorise the making of an appointment with that purpose and effect.

The defendants’ arguments against these conclusions were that (1) the circumstances of the appointment of a judicial officer are not justiciable, (2) the facts alleged in the Statement of Claim do not bear the interpretation we say they arguably bear and (3) the plaintiff has no standing to bring the proceedings.

We wish to make it clear that our decision to let the case go to trial does not mean that we have made any final or binding decision adverse to the defendants on the three matters listed above.  We have decided that final conclusions on those matters, about which we decide no more than that they are arguable, should be left to a trial judge.  Because of the limited nature of our conclusions, because of the necessarily limited set of assumed facts on which we have reached those conclusions and because the final decisions to be made on the disputed points by the trial judge may well be made on a more or less different set of facts from those before this Court, we think it proper to state our reasons for our conclusions only briefly.”

9                     The Court of Appeal stated these conclusions were based on the materials and arguments that had been before Olney J.  However, the Court noted an additional point, that had been put to it and which it called the “Kable argument”:  see Kable v Director of Public Prosecutions (1996) 189 CLR 51.  At para 46 the Court of Appeal said this “argument raised important questions about the appointment of members of the judiciary in a Commonwealth Territory, and incidentally, in a State”.  The Court said (at para 47) “the point taken is, in some form at least, an arguable one”.

10                  The Northern Territory government made an application to the High Court of Australia for special leave to appeal against the decision of the Court of Appeal.  On 4 May 2001 the High Court refused that application. 

11                  On 6 June 2001 the principal proceeding again came before Olney J, this time for pre‑trial directions.  A question arose as to whether it would be appropriate for Olney J, or any other member of the Supreme Court, to hear the case.  Counsel for NAALAS foreshadowed the possibility of some members of the Supreme Court being called as witnesses.  Olney J raised the possibility of his transferring the proceeding to the Federal Court pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT).  After consideration, all parties agreed Olney J had power to take that course.  His Honour decided to do so and made a transfer order.

12                  On the matter being transferred to this Court, it was assigned the file number D 17 of 2001.

The Chief Minister’s press conference

13                  At lunchtime on the following day, 7 June, Mr Burke gave a press conference outside Parliament House, Darwin.  The evidence tendered in support of the present application includes a video-film of the press conference.  It shows Mr Burke walking from the direction of Parliament House to a small group of waiting journalists.  After some preliminaries, in which everyone indicated they were ready to begin, questions were put to Mr Burke by the journalists.  He responded.  The video-film conveys the impression that the press conference was pre-arranged.

14                  The evidence also includes a transcript of the press conference.  It is agreed between the parties to the present (contempt) application (NAALAS, Mr Burke and the Northern Territory government) that this transcript accurately states the words used at the press conference, excepting a few inaudible words.  It is not suggested any of the gaps is significant.

15                  NAALAS does not complain of everything said by Mr Burke at the press conference.  However, in order to put into proper context the passages about which complaint is made, it is desirable for me to reproduce the transcript of the whole of the part of the press conference that is relevant to this case.  I do that with two additions.  First, in order to facilitate references to the transcript, I have lettered each question.  Second, I have reproduced in bold script the particular passages relied on by NAALAS, in relation to this application, and the identifying numbers that counsel gave those passages.

“[A]    OK, the Bradley case first of all came up in Parliament this morning – were you aware that Chief Justice Brian Martin had supported the special two-year deal?

            I’ve been following the case like everyone else.  (1)  What is disturbing is that some sections of the legal community seem to be co-operating in a way which is disturbing and (2) the real issue here is that it’s a continuation of what is a waste of taxpayer’s money,(3) a nonsense in its intent.  It started off as a move to try and overturn mandatory sentencing, (4) it’s now widened to attempt to destroy the reputation of the Chief Magistrate.  The net’s even widening now to try and impugn the reputation of the Chief Justice.  But it is before the Court and eventually the real issues will come out, and it’s appropriate that little is said prior to that, otherwise we’re really making a joke out of the whole judicial process.

[B]      Were you aware of that letter when you made the comments about the judicial system being corrupt?

            I’m not aware of, I’ve never been aware of any of the letters in detail.  In fact I’ve left most of that [battery drop-out] … to try and establish one and that little fiasco will go on in the courts for some time.  The real situation is that the, I believe the government’s reputation’s absolutely intact, but at the end of the process that will be shown as also will be the preservation of the total integrity of the Chief Justice. (5)  What’s sad is taxpayers’ money that should be directed towards Aboriginal constituents is being used in such an irresponsible way to firstly try and overturn mandatory sentencing and now to try and rip the whole judicial system apart by allegations which are unfounded.

[C]      Sorry, I just want to clarify – you weren’t aware of that advice from the Chief Justice to Shane Stone at the time that you made the comments about the judiciary being corrupt?

            Absolutely not … and I say that because, as I said I haven’t made it my business to get involved in this issue directly.  It’s in the hands of the Attorney General’s Department.  They’re protecting the government’s interests, and apart from giving directions from time to time, as happened yesterday as to what the government’s position will be as the process unfolds, I try to stand away from the whole issue.

[D]      So yesterday was the first you heard about that advice?

            Well it’s the first I’ve, it’s the first time that I’ve seen the letter. (6) I understand that Justice Angel gave that letter to both parties some time ago, and certainly the lawyers representing the government and I understand also Mr Bradley had been aware of that documentation since Justice Angel notified them that he’d released it.

[E]      What is your concern about the impact this case is going to have on the Territory’s judicial system?

            Well, firstly it has no impact in fact.  The Territory’s judicial system is in great shape, but (7) what we’re seeing is an attempt to rip this system apart as this case unfolds and it really is, (8) it really is a vengeful attempt by the Aboriginal Legal Aid Services to overturn mandatory sentencing and in trying to do so they don’t care who they destroy.  (9)  They don’t care if they destroy the Chief Magistrate. (10) They don’t care if they destroy the Chief Justice and (11) they don’t care if they destroy the whole of the judicial system in the process.  But there is a process to be followed.  We’re co-operating with that; and what’s disappointing to me is that the Labor Party seem hell bent on associating themselves directly with NAALAS and being part of what I believe is a totally irresponsible strategy.

[F]      I believe you’re saying you also believe NAALAS could bankrupt themselves?

            Well you should take note of the word, pro bono.  Right?  As this case unfolds and it’s finally ends, think of those words pro bono, because they claiming that it’s all being done for nothing.  And it’s certainly not costing the government nothing, and I don’t believe people like Maurice as he sits on his yacht in Coffs Harbour works for nothing, either.  So when the eventually costs are talked about, I’m sure the issue of pro bono will disappear out of sight.

[G]     You’ve spoken of the Chief Justice’s integrity being preserved at the end of this process.  How about the Chief Magistrate’s?

            I don’t believe, look, if you look at even the documentation that was there yesterday, what?  There’s a couple of things and I don’t want to get into the details of the case, but there’s a couple of letters missing for starters – one of which is obviously the Chief Justice wrote to his fellow judges.  One has to wonder why that’s missing.  And I believe if you look at the letter and the chief Justice’s statement today, there is nothing to defend.  And as I said, as this thing plays itself out in the Court, I’m sure that everyone will come to realise it’s been a charade from the outset.  (12)  I truly that what you’re seeing at the moment is an organisation who has made allegations that have no case, an organisation that one judge has said, this is no case and has thrown it out, now wanting to troll through and produce anything to create innuendo in order to try and establish a case.

[H]      How much longer will it go on for, do you reckon?  You’ve talked about 450,000 in terms of costs to NAALAS.

            Well there’s two things now.  In the hands of the Federal Court it could be brought on quite quickly, it could be resolved in the next few months, and everyone’ll be relieved when it’s all over, because (13) I think it’s been a nonsense and a waste of taxpayers’ money from the start.

[I]       So that, this news that the Chief Justice knew of that special pay arrangement, that doesn’t give you any cause for concern?

            Well I’m not commenting on what the Justice knew or didn’t know.  And it’s not appropriate to use this interview to try and circumvent the court process.  But the Chief Justice is quite comfortable, I’m sure, of his role and I believe if you look at the documentations that have been produced, there’s nothing to answer.

[J]       So you deny that this is creating any kind of crisis or pressure on the judicial system here in the Territory?

            Well, I deny it absolutely.  But let’s not overlook what is the strategy.  (15) The strategy of NAALAS is to try and achieve precisely that, to try and get commentary that judicial system is in crisis.  The reality is, what’s happening is a nonsense case being run at taxpayers’ expense by an organisation trying to overturn mandatory sentencing and who don’t care who gets hurt in the process.

[K]      You’ve just said you want to hold your tongue on this one yet you’re calling it a …

            I’ve said that before, this is nothing new.  I don’t intend to expand on comments which essentially I’ve made in the past.  But if you ask me the question, did I know about the letter of the Chief Justice?  I understand it was distributed by Justice Angel some time ago, the government’s lawyers received the letter, NAALAS lawyers received it.  I didn’t even take the time to read it, I saw it yesterday

[L]      But, had you been advised of it prior to this?

            No, I asked the question.  I hadn’t been advised of it.  (16)  I think the case is a nonsense.  I think it’s a waste of taxpayers’ money.  We’re cooperating as a government because it’s right and proper that as it’s in the hands of the Court, we’ll let the Court processes unfold.  But if you want my opinion, that’s no different from when it started, (17) it’s nonsense, it’s political, it’s designed to overturn mandatory sentencing and it’s careless in terms of who it hurts on the way.

[M]     So will you agree to, as Opposition’s asked for all documents relating to this appointment to be tabled?

            No, what is sad is the document, is that the Opposition Labor are in bed with NAALAS, and are active participants in (18) a destructive process, destructive not against government but destructive against individuals.  I mean, it’s individuals who are getting hurt in this, not the government.  And eventually when the court case is decided I’m confident the government’s position will be sustained.

[N]      Can we talk about COAG …”

The contempt application

16                  The statements made by the Chief Minister received wide publicity.  Excerpts from the press conference were shown that evening on Darwin television news broadcasts.  There was also a report on Darwin radio on the morning of 8 June.

17                  At about 1.15pm on 8 June 2001, Athol Geoffrey James, solicitor for NAALAS, faxed a letter to David Lisson, the solicitor for the Northern Territory government, referring to Mr Burke’s comments and enclosing a transcript of the press conference.  In his letter Mr James said:

“Mr Burke’s statement is clearly conduct that is calculated to deter a party from prosecuting proceedings and produce a real risk of the persons concerned being inhibited in their desire to obtain the adjudication of a Court.  Accordingly, it is my view, and the view of counsel for the Plaintiff, that the conduct arguably constitutes contempt of court.

I respectfully refer you to the cases listed at the end of this letter.  Essentially, those cases are authority for the proposition that conduct calculated to deter a party from prosecuting proceedings which produces a real risk of a person being inhibited in his or her desire to obtain the adjudication of a court is a contempt of court.  As you would be aware, the existence of that risk is to be determined objectively: see Willshire Smith v Votino Brothers Pty Ltd (1993) 41 FCR 496 at 505.  The same passage is also authority for the proposition that it is irrelevant whether the intention to bring pressure on the litigant succeeds or not.  It is also irrelevant whether the threat had the intended effect: see Smith v Lakeman (1956) LJCh 305 at 306.

The comments made by Mr Burke are plainly intended by public denunciation to dissuade my client from being involved in the proceedings.  The comments in effect, amongst other serious allegations, suggest that the Plaintiff is involved in an abuse of process in that it is conducting the proceeding for an ulterior motive; ie. To have the judiciary in the Northern Territory dismantled as well as to have the mandatory sentencing legislation abolished.

It is clear on any view of the law that the comments of Mr Burke is, with respect, conduct which constitutes a contempt of the Federal Court of Australia.”

18                  Mr James sought the following undertakings and actions by 5pm that day:

“1.       An undertaking by Mr Burke that he will refrain from making any, comments in public of a nature similar to the comments that he is reported to have made on 7^th June, 2001.

2.                  An undertaking by Mr Burke that he will refrain from making any communications either to the Plaintiff or to the public for the purpose of deterring the Plaintiff or calculated (in the sense of likely or having an inherent tendency) to have the effect of deterring the Plaintiff, from continuing the proceeding, which also includes any comments of a kind that publicly denounces the Plaintiff’s cause of action;

3.                  A public statement by Mr Burke which:

(i)                 retracts his allegations that these proceedings are being conducted for the intended purpose of dismantling the judicial system in the Northern Territory and abolishing mandatory sentencing;

(ii)               apologises for his comments; and

(iii)             recognises the inappropriateness of his comments.”

19                  Mr James indicated that, if these requirements were not met, he would file a notice of motion in this Court seeking to have Mr Burke dealt with for contempt of court.

20                  As Mr Burke was not in Darwin on 8 June, Mr James agreed to extend the time for response to his demands.  Ultimately, after some exchanges of correspondence, the demands were rejected. 

21                  On Saturday, 9 June 2001 Mr James informed the Court he wished to file a notice of motion and statement of charge.  Arrangements were made for the motion to be returnable before me in Sydney on Tuesday, 12 June (the Monday being a public holiday).  On that day the matter was adjourned by consent until Friday, 15 June 2001.

22                  On 15 June counsel for NAALAS sought to amend the statement of charge.  I allowed the amendment, but acceded to an application by counsel for the Northern Territory government and Mr Burke for an adjournment in order to allow them to obtain instructions concerning the new material.  I adjourned the hearing of the motion until Thursday, 21 June.

23                  On 21 June Mr A Moses and Mr P Keyzer appeared for NAALAS.  They sought to substitute a new statement of charge, being a document dated 18 June.  Mr D Collins and Mr M Grant, counsel for the Northern Territory government and Mr Burke, took no objection to that application.  The hearing of the motion then proceeded by reference to that statement of charge, to the exclusion of the earlier documents.

24                  The 18 June statement of charge is in these terms:

“North Australian Aboriginal Legal Aid Service Inc,

the Applicant in proceeding D 17 of 2001 between it and Hugh Burton Bradley, as First Respondent, and the Northern Territory, as Second Respondent

charges that

on 07 June 2001 the Honourable Dennis Burke, MLA for the Northern Territory of Australia, Attorney General of the said Territory, and Chief Minister of the said Territory

committed a contempt of the Federal Court of Australia.

Particulars:  On Thursday 07 June 2001 in making statements (as underlined in the annexure to this Statement of Charge which is also the annexure to the Affidavit of Peter Anthony Quinn sworn on 14 June, 2001) to the public media at or about lunch time outside the Northern Territory Parliament House, State Square, Darwin which statements were made for the purpose and/or had the effect and/or tendency of:

1.                  Subjecting the Applicant to improper pressure to discontinue or compromise the proceeding D 17 of 2001;

2.                  Dissuading potential witnesses from volunteering to give and/or giving evidence on behalf of the Applicant.

3.                  Dissuading those potential witnesses from giving frank and comprehensive evidence.”

25                  The annexure to the document consisted of a transcript of the press conference, as set out in para 15 above.

Issues in this application

26                  In his letter of 8 June (para 17 above), Mr James advanced only one ground for his contention that Mr Burke’s comments constituted a contempt of court: the statements were calculated to deter NAALAS from prosecuting its claim that Mr Bradley’s appointment was invalid.  However, the 18 June statement of charge added a second ground: the statements had a tendency to dissuade persons from giving evidence or, if they did give evidence, to affect the content of their evidence.

27                  It is desirable for me to emphasise that the only issues I am now addressing are: (i) whether or not the Court should find that any of Mr Burke’s statements at the press conference constituted contempt of court, on either or both the stated grounds; and, if so, (ii) what orders should be made in consequence of that finding.  I am not presently concerned with the merits of any of the issues raised in the principal proceeding.  Those issues are being dealt with in another way.  Since argument on the motion for contempt, steps have been taken to ensure an early final hearing (before another judge) of the issues in the principal proceeding.  Those issues include the validity of Mr Bradley’s appointment.  Their determination may require exploration of the circumstances surrounding the making of that appointment.  However, neither the validity of Mr Bradley’s appointment, nor its surrounding circumstances, is in issue before me at this time.  I express no view about those subjects.

28                  Counsel for the Northern Territory government read an affidavit of Mr Lisson, to which were annexed transcripts of media interviews given by various people, and one newspaper excerpt.  Much of this material dealt with Mr Bradley’s appointment and/or the conduct of particular persons in connection with it.  The material was tendered, and admitted into evidence, on the limited basis that it demonstrated the nature and extent of the public controversy.  It was admitted as evidence that various people said what they are quoted as saying, but not as evidence of the truth of their statements.  The truth of their statements is not an issue that arises in this application.

The relevant legal principles

29                  There is no dispute between the parties as to the legal principles that apply to this case.  They are summarised in a judgment of Mason P, of the New South Wales Court of Appeal, in Harkianakis v Skalkos [1997] 42 NSWLR 22.  Beazley JA agreed with Mason P.  Although the summary is lengthy, it is so helpful that I reproduce it with only minor excisions.  At 27-30 Mason P said:

“I have found the most difficult aspect of this case to be the ascertainment and application of the principles to be applied with respect to contempt by improper pressure on a litigant party, where material is published that is offensively critical of that party but not published with intent to deter the pending litigation and where the pending litigation involves defamation proceedings between the same parties.

In my view the following general principles apply:

            1.  This being an allegation of criminal contempt, the charge must be established beyond reasonable doubt.

            2.  The claimant must demonstrate, to the criminal standard, that the publication had ‘as a matter of practical reality, a tendency to interfere with the course of justice in a particular case’: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372.  In Hinch v Attorney-General (Vic) (1987) 164 CLR 15, Deane J (at 47) suggested ‘clear tendency’ as a suitable paraphrase.  Wilson J (at 34) spoke of a need to demonstrate a ‘real and definite tendency to prejudice or embarrass pending proceedings’.  Mason CJ (at 27-28) thought that a test of ‘substantial risk of serious interference’ would best reconcile the conflicting demands for a free press and for a fair trial, whilst conceding that it was synonymous or virtually synonymous with other authoritative formulations.

            In discussing a contempt which, like the present, was said to be involved in the publication of threatening words, Lord Reid said in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 298-299 (the Sunday Times case) that:

            ‘… the true view is that expressed by Lord Parker CJ in R v Duffy; Ex parte Nash [1960] 2 All ER 891, 896, that there must be “a real risk as opposed to remote possibility” [of interference with the course of justice].  That is an application of the ordinary de minimus principle.  There is no contempt if the possibility of influence is remote.’ …

            3.  Intention to interfere with the due administration of justice is not necessary to constitute a contempt: Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650 at 673-676 (where authorities are discussed by Hope JA); Director of Public Prosecutions v Wran (1986) 7 NSWLR 616 at 625-626; Hinch (at 46-47, 85).

            4.  Where however intent to interfere has been proved, this has usually been sufficient to sustain a prosecution: see, eg, Smith v Lakeman (1856) 26 LJ (NS) Ch 305; Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 248-249; 54 WN (NSW) 98 at 99; Hinch (at 43); cf Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245 at 258.  It is not self-evident why this is so.  Two possible explanations are that the court is applying the principle that a person who does an act with such intent is admitting a belief that he or she has a reasonable chance of success, with this admission being used as evidence of the fact (Attorney-General v Hislop [1991] 1 QB 514 at 535, per McCowan LJ.  As to the general principle, see Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641 at 657); or that such a case involves an inchoate offence in the nature of attempt, where intent plus preparatory acts will be sufficient to sustain the charge.

            5.  The cases have recognised a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material. ... Such contempt may include public discussion involving injurious misrepresentations concerning a party (see Re William Thomas Shipping Co Ltd [1930] 2 Ch 368; Fry v Bray (1959) 1 FLR 366) or abuse and public obloquy of a party (Re St James’ Evening Post; Roach v Garvan (1742) 2 Atk 461 at 471; 26 ER 683 at 684-655 [sic]; the Sunday Times case).  These and other instances of ‘trial by newspaper’ tend to undermine the rule of law, because they risk impeding access to the courts of law for vindication of legal rights.  The gravamen of the contempt is the tendency to deter both the individual litigant and litigants similarly placed who would wish to seek curial vindication of their rights.  (All criminal contempts ‘share a common characteristic: they involve an interference with the administration of justice either in a particular case or more generally as a continuing process’: Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 449, per Lord Diplock, cited with approval in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106.)

            6.  In judging the real tendency issue, the time relationship between publication and the ‘particular case’ allegedly interfered with is usually significant.  The reason is ‘that the question whether a publication constitutes a contempt of court is answered by reference to the reasonable probabilities existing at the time of publication, one of which is the length of time before a relevant hearing may take place’: Hinch (at 72), per Toohey J, citing Ex parte Auld; Re Consolidated Press Ltd (1936) 36 SR (NSW) 596 at 598-599; 53 WN (NSW) 206 at 207; see also Hinch (at 34, 44, 45); Attorney-General for New South Wales v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 699, 710-711; Attorney-General v News Group Newspapers Ltd [1987] QB 1 at 16; Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 at 569-571.  However, delay between publication and anticipated trial date of pending proceedings is not relevant to contempt by improper pressure on a litigant, because such pressure is capable of diverting the litigant at any stage in the proceedings.  The gravamen of this particular type of contempt is the potential interference in the litigant’s freedom to conduct the litigation as he or she chooses. …

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 negotiations towards the 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.

            7.  Successful interference with a party’s conduct of proceedings is not necessary for proof of liability for contempt by improper pressure.  This is indicated by the ‘tendency’ formulation itself, and is a feature shared with other aspects of contempt, such as contempt by publication of material having the tendency to prejudice potential jurors.  Even when the threatening or abusive communication is shown to have had no impact on the litigant concerned, there may still be a contempt. …

            8.  There is a question as to whether the tendency is to be measured against 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: cf Hislop (at 526).  The dual focus of the law of contempt referred to in the passage cited at the end of par 5 above suggests that the latter is the correct approach.  However, I need not resolve that issue in this case.

            9.  In punishing certain types of interference with litigants, the law is concerned to distinguish between proper and improper pressure: see Meissner v The Queen (1995) 184 CLR 132 …  This is because the litigant’s freedom to conduct litigation as he or she chooses is not an absolute one.  The distinction between proper and improper pressure is also encountered in restitution and contract law with their categories of economic duress: Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 especially at 46, per McHugh JA; Equiticorp Finance Ltd (In Liq) v Bank of New Zealand (1993) 32 NSWLR 50especially at 106, per Kirby P.  The fixing of an early hearing date by a judicial officer puts pressure on a litigant, but no one would categorise such pressure as improper.  Likewise with the disinterested persuasion to settle by a member of the litigant’s family.  But not all pressure is as disinterested, or can claim such obvious justification in the public interest.  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.  Were it otherwise, a threat to report a legal practitioner to a professional disciplinary body (cf In re Martin, The Times, 23 April 1986) or to commence a prosecution (cf Smith v Lakeman) could not constitute a contempt.  Yet it clearly may.”

Contentions of NAALAS

30                  Counsel for NAALAS commenced their submissions by acknowledging that Mr Burke (like everybody else in the community) is entitled to discuss political and governmental affairs.  They referred to Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.  In that case (at 559) a unanimous High Court said: “Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates …”.  Their Honours were speaking of representative government in the federal sphere.  The same principle applies to State representative government: see Stephens v West Australian Newspapers Limited (1994) 182 CLR 211.  There is no reason to take a different view about representative government in a Territory.

31                  However, counsel submit, freedom of speech is not absolute, even in the area of governmental and political affairs.  One of the limitations on freedom of speech is that provided by the law concerning contempt of court.

32                  Counsel for NAALAS accept there are occasions upon which the possibility of prejudice in litigation must be subordinated to the public interest in discussion of public affairs.  They refer to the statement of Jordan CJ, on behalf of the Full Court of the Supreme Court of New South Wales, in Ex parte Bread Manufacturers Ltd, mentioned by Mason P in Harkianakis.  Omitting citations, the Chief Justice said at 249-250:

“It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice.  But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed.  The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations.  The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.

It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter …  If, however, under colour of discussing, or continuing to discuss, a matter of public interest statements are published the real purpose of which is to prejudice a party to litigation, the contempt is none the less serious that an attempt has been made to cloak it …”

33                  Counsel for NAALAS acknowledge they bear the onus of negativing a defence of public interest.  They accept that, as with every other element in the case, their onus of proof is to the criminal standard: proof beyond reasonable doubt.

34                  Counsel for NAALAS draw attention to a statement by Lord Hardwick LC in Re St James’ Evening Post (1742) 2 A&K 469 at 471-472; 26 ER 683 at 684-685:

“There are three different types of contempt.  One kind of contempt is, scandalising the court itself.  There may be likewise a contempt of this court, in abusing parties who are concerned in causes here.  There may be also a contempt of court, in prejudicing mankind against persons before the cause is heard.  There cannot be any thing of greater consequence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters”.  [Counsel’s emphasis]

35                  This statement of the law was adopted by O’Loughlin J, in this Court, in Willshire Smith v Volino Bros Pty Ltd (1993) 41 FCR 496 at 503.

36                  Counsel say Mr Burke’s comments “had the purpose and/or tendency to abuse one of the parties to this proceeding and had the purpose and/or tendency to prejudice the public (and relevantly, potential witnesses) before the case [was] heard.”  Counsel refer in this connection to Hinch v Attorney-General (cited by Mason P in Harkianakis) and to Harkianakis itself.  In the latter case, at 42, Mason P observed:

“… the fact that a litigant is attacked as litigant is clearly relevant.  The distinction between deriding a person as litigant and merely further defaming that person during the pendency of defamation proceedings is drawn by Jordan CJ in Ex parte McCay [and Baume: Re Consolidated Press Ltd (1963) 36 SR (NSW) 592] (at 594-595).  In Hinch (at 54-55), Deane J referred to contempt based on a tendency ‘to disparage or vilify a party …because he is a litigant … or because of the litigation or allegations made in it’.  I would respectfully adopt this as a test of what may be a contempt, emphasising that the requisite tendency to deter must also be established.”

37                  Counsel’s proposition is that Mr Burke disparaged NAALAS, in its role as a litigant, and his comments had the purpose, effect and/or tendency to deter NAALAS from proceeding with the principal proceeding, to subject it to public obloquy for doing so and/or to deter witnesses from giving evidence or to affect the contents of their evidence.

38                  Counsel argue the question whether the comments had any of these characteristics is to be determined objectively; and it is irrelevant whether any intention to put pressure on the litigant is or is not successful.  That submission is supported by a passage in Willshire-Smith at 505:

“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 could ever establish the existence of a risk of 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.”

39                  Counsel say it is not to the point that Mr Burke has previously expressed similar views about the principal proceeding; NAALAS has not acquiesced in such conduct.  Moreover, they contend, Mr Burke’s position as Chief Minister and Attorney-General of the Northern Territory place him in a unique position to influence witnesses and public opinion.  They refer to a comment of the New South Wales Court of Appeal in Director of Public Prosecutions v Wran (cited by Mason P in Harkianakis) at 102-103:

“The statements were made to radio journalists and this would not necessarily, but might, lead to their publication to a very large number of members of the public over the radio stations controlled by the employers of the two reporters.  This would be the position whether or not the person making the statements was the Premier of New South Wales and President of the Australian Labor Party, but the fact that the statements were made by a person who was the Premier of New South Wales and the President of his party added greatly to the possibility that they would be republished in the way we have indicated.”

40                  Further, counsel argue, Mr Burke’s comments were made at a “sensitive stage of the proceedings”, immediately after the principal proceeding had been transferred to this Court, with expectation of an early hearing.  In Wran (at 103) the Court of Appeal noted that “in considering whether a publication might as a matter of practical reality have a tendency to interfere with the due administration of justice the likely period of delay before the commencement of the relevant trial, as at the date of publication, is a relevant matter to consider”.

41                  Finally, counsel draw attention to Mr Burke’s failure to offer an undertaking in respect of future statements.  They say that failure has necessitated commencement of a proceeding for contempt in which injunctive relief could be sought.

42                  In their written Outline of Argument, counsel said NAALAS sought the following relief:

“a.       A declaration that Mr Denis Burke, Chief Minister and Attorney-General of the Northern Territory is guilty of contempt in relation to statements made by him on 7 June 2001 to the Australian Broadcasting Corporation and other media entities.

b.                  An order that, Mr Denis Burke is, until further order, by himself, his servants and agents restrained from sending or communicating, by letter, by facsimile or by e-mail, or any other means, any communication to any person for the purpose or effect of subjecting the Plaintiff to improper pressure to discontinue or compromise this proceeding. [sic]

c.                  An order that, Mr Denis Burke is, until further order, by himself his servants and agents restrained from sending or communicating, by letter, by facsimile or by e-mail, or any other means, any communication to any person for the purpose or having the effect of dissuading potential witnesses from giving evidence and or from giving truthful evidence in these proceedings.

d.                  An order that the matter of what penalty should be imposed on Mr Burke be stood over to a date that this Honourable Court deems fit and appropriate.

e.                  An order that Mr Denis Burke, and or the Second Respondent to these proceedings, pay the Plaintiff’s costs of this motion on an indemnity basis.”

43                  However, during discussion, counsel agreed there was no point in reserving until a later date the matter of penalty for any contempt that had been committed at the press conference of 7 June: see item d.  Counsel for both parties then put submissions about penalty.

Contentions of Northern Territory government and Mr Burke

(i)         General submissions

44                  Counsel for the Northern Territory government and Mr Burke submit the Court cannot be satisfied, according to the criminal standard of proof, that any of the statements made by Mr Burke “have, as a matter of practical reality, a real and definite tendency to interfere with the course of justice in this case”.  That submission was put by way of a general answer to the submissions of counsel for NAALAS.  It requires me to evaluate the particular statements relied on by those counsel.  I will do that in due course.

(ii)               Public discussion of a matter of public interest

45                  More specifically, counsel argue the background material annexed to Mr Lisson’s affidavit shows Mr Burke’s comments were made during the course of a public debate about the principal proceeding and the issues related to it.  In order to evaluate that contention, I need to analyse the annexed material.  I will summarise it as concisely as possible.  The documents are arranged in chronological order.

46                  The summary is as follows:

(i)         A transcript of an item on an Australian Broadcasting Corporation (“ABC”) program, The 7.30 Report of 16 March 2000.  It opens with a statement by Kerry O’Brien, the presenter, about a [then] recent revelation that, during the first two years of his term as Chief Magistrate, Mr Bradley had been “paid according to a secret, special determination fixed by the Government itself”.  Mr O’Brien’s statement was followed by comments from several people about that situation, reference being made to mandatory sentencing and Mr Bradley’s record as a sentencer.  There was discussion about the usual method of fixing magistrates’ salaries and the desirability of this being done at arm’s length from government.  The discussion included a contribution from Mr Burke in which he said he did not think there was anything untoward about the arrangement but it could lead to a perception of “problems with the separation of powers”, so he intervened when the contract period expired and Mr Bradley will now “revert to the same package as recommended by the [Remuneration] Tribunal with an open term”;

(ii)                A transcript of an item on radio 8DDD FM on the following morning.  It commenced with a replay of Mr Burke’s comment on The 7.30 Report and followed with an interview of Jon Tippett, President of the Northern Territory Law Society.  Mr Tippett argued the undesirability of a negotiated salary arrangement;

(iii)               An ABC News Online bulletin of 29 March 2000 reporting a call by the Northern Territory Law Society for Mr Bradley to disclose the details of his negotiated salary package;

(iv)       A transcript of an ABC television news item, of 29 March 2000, reporting on a challenge by a Northern Territory lawyer for the authorities to charge him with two offences that he claimed to have committed and which, he said, would attract mandatory imprisonment.  There was also a further call (by Mr Tippett) for Mr Bradley’s salary package to be disclosed publicly;

(v)        An incomplete transcript of a radio news item, of 30 March 2000, dealing with disclosure of the salary package and also possible applications for Mr Bradley to disqualify himself from hearing cases attracting mandatory sentences;

(vi)       A transcript from ABC Online Services setting out the contents of an item on The 7.30 Report of 6 April 2000 concerning Mr Bradley’s remuneration package and an application that Mr Bradley disqualify himself from sitting on a particular case.  The item repeats some earlier statements.  However, I mention the contribution of Mr Burke.  He said:

                        “I think that there is a scurrilous and irresponsible and childish attack by some sections of the legal profession against the Chief Magistrate.

                        I can’t interfere with them going at each other, but they are.

                        All I can say is that the Chief Magistrate is a person of high repute.

                        He has nothing to be concerned about in my opinion.

                        He delivers his responsibilities perfectly well, without any interference and frankly, this is just a witch-hunt by those who are trying to make something out of nothing.”;

(vii)      An extract from “The Northern Territory News” of 8 April reporting that an application had been made to the Northern Territory Supreme Court for an order that Mr Bradley be disqualified from hearing a case involving a juvenile girl.  The story concluded with a report of a demand by Mr Michael Maurice QC, counsel for the juvenile, that Mr Burke apologise for the comments he had made on The 7.30 Report two nights earlier: see document (vi);

(viii)      A transcript of a news item on NTD8 TV News of 19 April reporting that Mr Bradley had consented to an order in the Supreme Court prohibiting him from hearing the case concerning the juvenile girl.  It was reported that Olney J, who heard the application for prohibition, said evidence presented in court could give rise to suspicions about Mr Bradley’s impartiality.  There was reference to possible applications for prohibition in other cases.  Mr Burke is quoted as saying:  “To my mind it’s a witch hunt against our Chief Magistrate”;

(ix)       A fuller report about the Supreme Court case, aired on The 7.30 Report on 20 April.  The item then moved onto a discussion about the significance, in terms of judicial independence, of a special salary arrangement, especially one kept secret from the public.  Towards the end of this item, mention was made of the filing that day of process seeking orders invalidating Mr Bradley’s appointment – that is, the principal proceeding;

(x)        A transcript of an item on The 7.30 Report of 1 May 2000.  The item stated Mr Bradley had been avoiding cases involving NAALAS and dealt with a comment, made some ten weeks earlier by Mr Burke, that the Northern Territory justice system is “totally corrupt”.  Mr Burke explained this meant that “the fulcrum [is] moving totally in favour of the criminal”.  There was a reference to the principal proceeding.  Michael Jones, a solicitor for NAALAS, stated that perceptions of bias are stimulated by secrecy.  Mr Burke responded by saying:

                        “Trying to show that, they will destroy a man’s reputation, and, frankly, I think it’s irresponsible.

                        It should be left alone.

                        The magistrate should be allowed to get on with his business.”

The item went on to discuss when particular people became aware of Mr Bradley’s contract.  There was further comment about the undesirability of such a contract; 

(xi)              A transcript of a radio interview, on 8DDD FM on 5 May 2000, reporting on an expected ruling by the Supreme Court concerning the release of documents relating to the salary package.  The report included comments Mr Jones had made, in an interview some weeks earlier, to an ABC reporter, Murray McLaughlin.  Some of these comments were used on The 7.30 Report on 20 April.  Amongst those not then used were comments about Mr Bradley that counsel emphasise in the present case.  Referring to the statement by Olney J on 20 April about possible suspicion of bias, Mr Jones said:

                        “Now I do not know of any other case in Australia at all where a Supreme Court judge has actually levelled an accusation like that or made a judgement like that in such a serious case.  His Honour was quite plain in saying there is a problem with your appointment, Mr Bradley.  But the upshot is that Mr Bradley is now harpooned.  We still do not know what the deal was.  We still do not know what the deal is or what it might be.  It still has the appearance of a performance based package.  Mr Bradley is very, very damaged now.  He is a damaged product.  He is a damaged product of a system that is quite wrong, effectively, the government, the CLP government, which has been making bad law for many, many years.  It’s a government that is lazy, that is derelict, that tries to set one against the other and that has at its head someone who could only be regarded as a figure of fun in other places and he is becoming a figure of fun here.  It is a government that frankly is not governing this place at all well and it must go.  Likewise Mr Bradley must go because he is, like that damaged product, he is a, he has no integrity left.”;

(xii)      A transcript of a radio interview, on 8DDD FM on 14 June 2000, with Gordon Renouf, then Director of NAALAS.  Mr Renouf was asked whether the principal proceeding was “all about mandatory sentencing” as Mr Burke claimed.  Mr Renouf said it was not and spoke of the need for separation of powers. He criticised the Northern Territory government for entering into the special salary contract and advocated amendments to the Magistrates Act in order to prevent any repetition.  Mr Renouf said it was wrong to characterise the principal proceeding as an attack on Mr Bradley.  He said this case was “about Shane Stone’s decision about how he was going to appoint judges, which in my view breaches the principle [of] judicial independence which are [sic] a key cornerstone of our democratic system”.  (Mr Stone was Chief Minister at the time of Mr Bradley’s appointment);

(xiii)      A transcript of an item on The 7.30 Report screened that same day, 14 June.  The item mainly discussed the importance of separating powers, a principal contributor being Dr George Williams of the Australian National University Law School.  The item also included a question by Mr Burke as to why NAALAS “pursued this hopeless case at great cost, when at the same time they’re crying poor and after more money from the taxpayer to supposedly defend their clients”.  Mr Renouf answered that the cost of the case to NAALAS “has been quite insignificant” and explained NAALAS’ barristers “because they are concerned about the issue, have agreed to do it at a far reduced fee to normal and we’re not really expecting any impact on our normal services whatsoever”;

(xiv)     A transcript of an item on the ABC program Stateline of 16 June.  It contained comment about the decision that day of Olney J summarily to dismiss the principal proceeding.  After an introduction, Mr Burke said:

                        “All allegations regarding the appointment of the Chief Magistrate and his conduct on the Bench have been thrown out of the court and described by the judge as a hopeless case, which forces us to ask the question, why has justice in the Northern Territory been diverted to such an extent over such a hopeless case.”

Mr Burke proclaimed the decision as “a vindication of the reality of a separation of powers and that it is the authority and prerogative of the Parliament through its Executive to appoint magistrates and judges and to set terms and conditions”.  However, the reporter said that, despite the decision, there remained a perception “that Mr Bradley was not completely independent of government”.  There were comments about the importance of judicial independence by Dr Williams and Mr Renouf.  The item repeated Mr Burke’s comment (document (xiii) above) about NAALAS spending money on the case while “crying poor” and Mr Renouf’s response to that.  Mr Renouf repeated his call for legislation to preclude future special contracts.

(xv)      A transcript of NTD8 TV news on 19 July.  It opened with the presenter saying Mr Burke “has called for the closure of Aboriginal Legal Aid Services accusing them of wasting taxpayers’ money”.  A reporter said the prospect of a NAALAS appeal against the summary dismissal judgment of Olney J “today prompted this angry outburst from Chief Minister Denis Burke”.  The transcript quoted Mr Burke saying:  “I reckon they should close a lot of these Aboriginal legal aid organisations down.  So that an organisation that’s set up to defend Aboriginal clients is not frittering away all that money on a straight witch hunt against mandatory sentencing”. A reporter referred to Mr Burke having claimed that NAALAS is “wasting millions in taxpayer dollars”.  Mr Renouf is quoted as responding:

                        “The Chief Minister’s claim that there’s millions of dollars involved is ridiculous we are talking about a few thousand dollars at the most. …

                        The issue is, does mandatory sentencing help the Northern Territory reduce crime.  And the other issue is, is the way Shane Stone appointed the Chief Magistrate proper.  These are proper issues for public debate.”;

(xvi)     A fuller report, from ABC Online PM, of the same exchange.  Mr Burke is quoted as saying:

                        “This is another example of a disgraceful waste of taxpayers money by a bunch of white lawyers who are quite prepared to waste taxpayers money to try and shame the Northern Territory into changing its mandatory sentencing and Territorians don’t like that sort of approach, and certainly the taxpayers don’t like their money being wasted this way.

                        I’ve said on many occasions we should close down these Aboriginal Legal Aid Services.  They’re not serving their clients for the way they are funded.”

(xvii)     A transcript of a news item on ABC TV news of the same date, 19 July, dealing with the same material.

(xviii)    A transcript of a item on 8DD FM radio on the same day covering the same ground.  Mr Renouf said no decision had yet been made about an appeal against the decision of Olney J and any such decision would depend upon advice from counsel as to the prospects of success.  Mr Renouf was asked whether he agreed with a call for Mr Burke to resign as Attorney-General  He responded:

                        “I think that’s a matter for the politicians to work out.  What we say is that judicial independence in the Northern Territory has been seriously breached by Shane Stone’s Cabinet’s decision.  We acknowledge the Chief Minister has said he would never have made such a decision if he’d been Chief Minister and we applaud him for that.  All we want him to do is go one further and legislate to guarantee that this situation can never happen again.”

(xix)     The next document is not until 2 November 2000.  It is a transcript of an item on 8DDD FM stating that Maurice Ryan, a NAALAS board member, was opposed to pursuing the Bradley case.  The report focussed on recent contacts between Mr Ryan and Mr Renouf and mentioned Mr Renouf’s forthcoming retirement as Director of NAALAS.

(xx)            A transcript of an item on ABC radio, in the program PM of 16 November 2000, reporting the decision of the Court of Appeal to uphold NAALAS’ appeal against the order of Olney J.  There was comment from various people including Mike Reed, Acting Chief Minister and Acting Attorney-General of the Northern Territory, who said the government “would continue to defend our position for the reasons that there are important matters of the application of justice in the Northern Territory that pertain to that case”. 

(xxi)           The documents then take a six month leap forward, to 4 May 2001.  On that day ABC TV news reported the decision of the High Court to reject the Northern Territory government’s application for special leave to appeal against the decision of the Court of Appeal.  It was stated this meant the Supreme Court “will now proceed with a hearing about the propriety of Mr Bradley’s appointment”.  Mr Jones commented:  “I and NAALAS are looking forward greatly to that full investigation of all the facts, of all the issues in this case”.  There was reference to the question whether Mr Bradley would stand aside until the trial.  The item concluded with a comment by the reporter:  “Mr Burke said the action against Mr Bradley was a vendetta and a waste of money”.  However, the reporter noted it was “not being funded entirely out of NAALAS coffers”, a national law firm “is assisting the action because of its public interest implications”.

(xxii)     A further 7.30 Report transcript, dated 6 June 2001, dealing with a claim that the Northern Territory Chief Justice had all along known the terms of the contract between the government and Mr Bradley.  The report included comments by various people including Mr Maurice, apparently speaking from a yacht at Coffs Harbour.  Mr Maurice’s comments related only to the Chief Justice.  He said:

                        “It raises serious questions, both about his judgment and, unfortunately, his integrity.

                        And I think these are questions which need to be answered very quickly, because it really does remove a basis for public confidence in the administration of justice in the Northern Territory.”

(xxiii)    An ABC News Online report of the hearing before Olney J on 6 June.

(xxiv)       An ABC News Online report, dated 7 June 2001, reporting the substance of the item on The 7.30 Report the previous evening.

(xxv) – (xxxi)  These publications all post-date Mr Burke’s press conference of 7 June.  They include reports of his remarks at the press conference.  Having regard to their time of publication, they cannot constitute background material to Mr Burke’s comments.

Discussion

47                  The summarised material demonstrates the circumstances surrounding Mr Bradley’s appointment in 1998, especially the arrangement as to his remuneration, generated considerable media attention and comment.  This included discussion about the compatibility of the arrangement with accepted principles of judicial independence and the doctrine of separation of powers.  The comments included suggestions of a link between Mr Bradley’s appointment and the Northern Territory government’s support for mandatory sentencing.

48                  Documents (i) to (viii) pre-date commencement of the principal proceeding.  Naturally, therefore, they say nothing about that proceeding.  They deal with the subjects set out in para 47, and also the question whether Mr Bradley should disqualify himself, or be disqualified, in relation to the case against the juvenile girl.

49                  Document (ix) reported the filing of process to commence the principal proceeding.  It made no comment about the motivation for, or merits of, that proceeding.  The first such comment was made by Mr Burke himself in The 7.30 Report on 1 May 2000: see document (x).  On 14 June 2000 Mr Renouf responded to a question about the relationship of the case to mandatory sentencing.  He said the case was concerned with separation of powers and judicial independence: see document (xii).  He did not otherwise comment on the motivation for, or merits of, the proceeding.

50                  Documents (xiii) to (xviii) all relate to television or radio items within the period 14 June to 19 July.  Despite Mr Renouf’s statement of 14 June, Mr Burke continued to disparage the principal proceeding (“this hopeless case”) and to criticise NAALAS for pursuing it.  This criticism reached a climax on 19 July 2000 when, notwithstanding Mr Renouf’s statement on The 7.30 Report of 14 June (document (xiii)) about the cost being insignificant because of “far reduced” legal fees, Mr Burke spoke about “a disgraceful waste of taxpayers’ money” and advocated closing down Aboriginal Legal Aid Services.  The suggestion was that, because of its conduct as litigant in the principal proceeding, NAALAS should not be allowed to continue in existence.

51                  Throughout the period April to July 2000, only Mr Burke is revealed by the background documents as talking about the merits of the principal proceeding or the motivation of NAALAS in commencing it.  The background documents suggest a campaign on these topics by Mr Burke, not a public debate by others to which he merely made a contribution.

52                  As I have mentioned, counsel for the Northern Territory government and Mr Burke place emphasis on remarks Mr Jones made about Mr Bradley’s position on 20 April, played on 8DD FM on 5 May: see document (xi).  Mr Jones’ comments were expressed in strong terms.  They were critical of Mr Bradley’s condition (“very, very damaged now”) and of government actions that had led to that situation.  I make no judgment about the validity or otherwise of those criticisms.  Whatever their validity, Mr Jones’ comments included no reference to the principal proceeding.

53                  During a period of over nine months following 19 July 2000 there is no disclosed public debate.  After the High Court refused special leave to appeal against the decision of the Court of Appeal, on 4 May 2001, Mr Burke is quoted as describing the action against Mr Bradley as “a vendetta and a waste of money”; but that is all until the 7 June press conference.

54                  In para 32 above I set out the passage in Ex parte Bread Manufacturers Ltd relating to public discussion of an issue.  Jordan CJ said “if in the course of ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed”.  The Chief Justice obviously had in mind a comment made in the course of a current public debate on a particular topic, the comment being only incidentally prejudicial to some individual.  I do not think he was referring to a comment made in the course of a campaign, generated by the commentator, against a party to litigation and attacking that party’s conduct as a litigant.

55                  Consideration of the transcript has persuaded me that Mr Burke deliberately used the press conference of 7 June 2001 to revive his April-July 2000 campaign of disparagement of the principal proceeding and criticism of NAALAS for pursuing it.  The first question put to Mr Burke on 7 June 2000 apparently arose out of a discussion in Parliament that morning about Mr Bradley’s salary arrangement.  The question, lettered [A], was whether he was aware that Chief Justice Martin had supported “the special two-year deal”.  Mr Burke did not answer that question.  Instead, he referred to “the case”, about which he had not been asked, and made a series of observations about it.  These observations established the four themes for the press conference, the four messages he wished to convey to those who would see or hear excerpts from the press conference. 

56                  First, Mr Burke said, it was “disturbing” that “some sections of the legal community seem to be co-operating in a way which is disturbing”:  see highlighted words (1) in para 15.  Co-operation in the legal community is not usually a matter of reproach; this comment was intended to imply something sinister.  While Mr Burke did not elaborate, he was plainly saying it was disturbing that “some sections of the legal community” were providing information for use in the case.  His comment may be linked to highlighted words (6) about Justice Angel having given the Chief Justice’s letter of advice to the parties.

57                  Secondly, Mr Burke described the case as “a waste of taxpayer’s money”: see highlighted words (2).  During the remainder of the press conference, he repeated the substance of this observation on no less than four occasions:  see highlighted words (5), (13), (15) and (16).  Highlighted words (5) involved the additional criticism that, not only was NAALAS wasting taxpayers’ money, it was doing so at the expense of its Aboriginal constituents.

58                  Mr Burke’s third theme, that the case was “a nonsense in its intent”, was also repeated four times: see highlighted words (13), (15), (16) and (17).  The comment was elaborated in highlighted comment (12), when Mr Burke referred to NAALAS having “no case” and referred to the decision of Olney J to that effect.  Although he must have known about the decision of the Court of Appeal, he failed to mention that three appeal judges had reached the opposite conclusion and had held one issue, at least, raised important questions about the appointment of members of the judiciary in the Northern Territory.

59                  The final theme of the press conference was contained in highlighted words (4): the case was an “attempt to destroy the reputation of the Chief Magistrate” and, now, the Chief Justice.  That theme also was revisited: see highlighted words (5) (“to try and rip the whole judicial system apart by allegations which are unfounded”), (7) (“an attempt to rip this system apart”), (8) (“a vengeful attempt … to overturn mandatory sentencing and … they don’t care who they destroy”), (9), (10), (11), (15), (17) and (18).

60                  In summary, Mr Burke told his interviewers:

(i)                  there had been “disturbing” co-operation between some sections of the legal community (to provide information);

(ii)                in support of a case that represented a waste of taxpayers’ money and was being undertaken by NAALAS in betrayal of its duty to its Aboriginal constituents;

(iii)               which case was “a nonsense in its intent” and entirely without merit, as demonstrated by its having been thrown out by one judge;

(iv)              but which was being prosecuted for extraneous and improper reasons: to destroy the reputations of the Chief Magistrate and the Chief Justice and “the whole of the judicial system”.

61                  The impression that Mr Burke deliberately set out to convey these messages is reinforced, not only by their repetition, but also by the fact that none of them was responsive to a question he was asked.  I have already mentioned question [A].  Question [B] asked him whether he was aware of the Chief Justice’s letter when he made an earlier comment about the judicial system being corrupt.  His response commenced by referring to letters, without really addressing the question, but terminated in an attack on NAALAS for sacrificing the interests of its Aboriginal constituents in an attempt to “rip the whole judicial system apart”.

62                  Similarly in regard to question [E].  The opening words were responsive, but they were followed by an unresponsive repetition of themes (ii), (iii) and (iv): see highlighted words (7), (8), (9), (10) and (11).

63                  Question [G] related to preservation of the Chief Magistrate’s integrity.  Mr Burke did not answer that question.  First he commented on missing letters.  Then he returned to themes (ii) and (iii): see highlighted words (12).

64                  Again, question [H] related to the duration of the case.  Mr Burke dealt with that, envisaging the case “could be resolved in the next few months”.  He then followed with an unresponsive reiteration of themes (ii) and (iii).

65                  I need not labour further the point about unresponsiveness.  Similar comments may be made about questions [J], [L] and [M]: see highlighted words (15), (16), (17) and (18).

66                  No journalist asked a question concerning the motives or objectives of NAALAS, the attitude of the legal profession to the principal proceeding or its merits.  Mr Burke used questions on other topics to force comments about these matters upon his interviewers.  He did so knowing he was speaking to journalists who were filming the interview and recording his words.  Particularly given the publicity previously accorded to this case, and the circumstances out of which it arose, he must have realised, and intended, that his words would be republished in the media and reach a large audience; the more inflammatory his words, the more likely this would be the case.  It is pertinent to recall the comment of the New South Wales Court of Appeal in Wran, quoted in para 39 above.  The fact that the subject statements were made to the media by a person who was Chief Minister and Attorney-General of the Northern Territory “added greatly to the possibility that they would be republished” in the media.

67                  Mr Burke was entitled, of course, to have whatever opinion he wished about the motives and purposes of NAALAS, the attitude of the legal profession to the litigation and the merits of the principal proceeding.  He was entitled to express those opinions; but only provided that, in doing so, he did not transgress the rules concerning contempt of court.  I use the summary of those rules by Mason P in Harkianakis, quoted in para 29 of these reasons, for the purpose of considering whether Mr Burke did transgress.

68                  Paragraph 1 of Mason P’s principles merely states the standard of proof.

69                  Paragraph 2 poses the applicable test: whether, “as a matter of practical reality”, the comments had a tendency to interfere with the course of justice in the principal proceeding; whether there was a “clear tendency” or “real risk” of interference.  Although different judges have stated the test in different words, all formulations require a real, rather than theoretical, tendency or risk.

70                  Mr Collins and Mr Grant argued there was no real possibility that Mr Burke’s words would deter NAALAS from pressing ahead with its case or affect its outcome.  They suggested those who were responsible for the commencement of the proceeding were determined to pursue it to finality.  The background documents provide some support for that suggestion, insofar as Mr Jones and Mr Renouf were concerned.  However, Mr Jones was the solicitor for NAALAS.  So far as I am aware, he was not a member of its board or a person charged with making decisions on its behalf.  Mr Renouf was Director of NAALAS when the proceeding commenced but had apparently since retired.  The evidence does not disclose whether he retained any continuing role in NAALAS.

71                  The evidence does not indicate the attitude of other NAALAS board members.  Document (xix) attributes a position to Mr Ryan, as at 2 November 2000, but the document does not provide proof that Mr Ryan was in fact then opposed to continuation of the case.  In any event, I have no way of knowing why Mr Ryan took that position (if he did), whether any other board member shared his view or whether Mr Ryan remained of the same view in June 2001.

72                  However, I believe it is not fanciful, or merely theoretical, to regard the comments made by Mr Burke on 7 June 2001 as having had a clear tendency to put pressure on NAALAS to discontinue the case.  In June 2000, Mr Burke had criticised NAALAS for pursuing “this hopeless case at great cost, when at the same time they’re crying poor and after more money from the taxpayer to supposedly defend their clients”; in other words, NAALAS was spending money on this case when they claimed not to have enough money to undertake their primary duty of defending clients.  This comment was followed in July 2000 by an expression of opinion that “a lot of these Aboriginal legal aid organisations” should be closed down, so that “an organisation set up to defend Aboriginal clients is not frittering away money on a witch hunt”.

73                  These were intimidatory comments.  They were of such a nature as to put considerable pressure on an organisation such as NAALAS.  NAALAS is a voluntary association formed under, and subject to, Northern Territory law.  It would be within the power of the Northern Territory Parliament to terminate its existence.  Moreover, NAALAS is apparently dependent on public funding, and the support of its Aboriginal constituency, for its continuation in existence and effective operation.  Comments calculated to cause concern amongst members of the general community, dissent within NAALAS itself, or loss of confidence in its leaders, had a clear tendency to cause those leaders to abandon the proceeding, not because they thought it lacked merit or utility, but in order to save the organisation from destruction, disintegration or being rendered ineffective by lack of funds or loss of Aboriginal support.

74                  In July 2000 NAALAS was publicly told its pursuit of the principal proceeding justified its being closed down.  A comment to that effect by a private citizen might not matter.  But Mr Burke was a powerful man.  He was leader of the Northern Territory government.  His political party controlled the Northern Territory Parliament.  As Attorney-General, he presumably had significant contact with legal aid agencies, including Aboriginal legal aid agencies.  Even if NAALAS did not receive funds directly from the Northern Territory government, members of NAALAS might reasonably have seen Mr Burke as an influential figure in relation to Commonwealth government decisions concerning Northern Territory institutions. 

75                  In his comments of 7 June 2001, Mr Burke did not go so far as to repeat his observation about closing down Aboriginal legal aid organisations.  But his repeated statements about NAALAS wasting taxpayers’ funds, and particularly his comment about NAALAS using money on the case “that should be directed towards Aboriginal constituents”, must have triggered recollection of his July 2000 comments; especially amongst the officers and members of NAALAS.  It is difficult to see any reason, other than a desire to put pressure on those people, for Mr Burke’s comments about waste of funds.

76                  The second way in which there was a tendency to interfere with the course of justice is pressure on witnesses.  This pressure was more subtle.  Mr Burke only complained of co-operation in the legal community, but I think he meant to convey disapproval of lawyers providing information in support of the case.  Especially as he was Attorney-General, it seems to me not fanciful, or merely theoretical, to think this statement had a tendency to deter persons from supplying information to NAALAS or from willingly giving evidence on its behalf.  I am not prepared to say it had a tendency to influence the content of the evidence of any witness who was called.

77                  In para 3 of his summary, Mason P pointed out it is not necessary to prove that the alleged contemnor intended to interfere with the due administration of justice.  In the present case, I think such an intention should be inferred.  However, if I am wrong about that, the clear tendency is enough.

78                  In considering the tendency of Mr Burke’s comments I have looked at the position of NAALAS itself, rather than taken the hypothetical litigant of “ordinary” fortitude: see the two alternatives mentioned by Mason P in para 9 of his summary.  However, I do not think it makes any difference if the other alternative is adopted.  The hypothetical litigant must surely be one that shares the major characteristics of the actual litigant.  I have not relied on evidence as to any actual reaction within NAALAS to Mr Burke’s comments.

79                  Having regard to the nature of the pressure generated by Mr Burke’s remarks, the time relationship between those remarks and the likely hearing of the principal proceeding may not be particularly significant.  This case is unlike Wran, Hinch, and other cases cited by Mason P in para 6 of his summary, in that it is not concerned with the possibility of prejudicing a jury trial.  However, to the extent that the time relationship is relevant, this tells against Mr Burke.  Mr Burke was aware the principal proceeding had been transferred to this Court with a view to an early hearing.  As he himself said, in this Court’s hands “it could be brought on quite quickly, it could be resolved in the next few months”.

80                  The evidence does not suggest Mr Burke’s comments have had the effect of interfering with the conduct of the case.  NAALAS continues to prosecute the case and there is no evidence of any effect on the attitude of any potential witness.  However, as Mason P pointed out, in para 7 of his summary, effect is immaterial.

81                  As I have noted, NAALAS must establish its charge of contempt beyond reasonable doubt.  In the present case, there is no dispute regarding primary facts.  The evidence is entirely documentary; the question is what inference ought to be drawn from those documents.  Having given the matter careful consideration, I am satisfied beyond reasonable doubt that the comments made by Mr Burke, at his press conference on 7 June 2001, had a clear tendency to interfere with the administration of justice by putting improper pressure on NAALAS and potential witnesses.  Mr Burke must be adjudged guilty of contempt of court.

82                  I wish to emphasise that I do not hold a person commits a contempt of court merely by commenting upon a pending court case or by impugning the motives of a litigant.  More than this is required.  One example of the “something more” is when the comment is of such a nature, and is made in such circumstances, that it has a clear tendency to deter a litigant from continuing to prosecute or defend the case, or to dissuade potential witnesses from giving evidence.  In my opinion, the comments of Mr Burke went that far; that is why I find the charge proved.

Orders

83                  In para 42 above, I set out the orders sought by counsel for NAALAS.  Having regard to the finding just stated, it is appropriate to make a declaration along the lines suggested in para a of counsel’s submission.  I do not propose to make either of the injunctions sought in paras b and c.  The nature of the conduct proposed to be restrained is such that, irrespective of any injunction, its commission would be a contempt of court and punishable as such.  As the effect of contravention of an injunction is only that the contravenor is punishable for contempt of court, it makes no difference whether the contemptuous conduct is also a breach of an injunction.

84                  As will appear, I have decided, on this occasion, to impose a relatively modest penalty on Mr Burke.  However, even in the absence of an injunction, Mr Burke would be prudent to proceed on the basis that, if he were to repeat his contempt, the Court would be likely to impose a very significant penalty; quite possibly a term of imprisonment.

85                  Counsel for NAALAS contended that, if I found contempt proved, I should order a term of imprisonment on this occasion.  I am not prepared to take that course.  Although I think Mr Burke deliberately sought to put improper pressure on NAALAS and potential witnesses, I have no reason to believe he realised that, in doing so, he was committing a contempt of court.  There is no suggestion of a prior offence.

86                  Counsel for the Northern Territory government and Mr Burke submitted I should impose no penalty whatever on this occasion.  I am not prepared to take that course either.  The Court must affirm the importance of the rule that people, however eminent, are not permitted to interfere with the due administration of justice.  The Court should seek to deter others from engaging in such conduct.  Whether or not Mr Burke realised he was committing a contempt of court, he deliberately adopted a course of conduct that he should have known to be unacceptable.  He was attempting to influence the course of the litigation by putting pressure on NAALAS and potential witnesses.

87                  This case is different to Wran, where penalties were imposed (in 1987 dollars) of $25,000 on Mr Wran and $200,000 on Nationwide News Pty Ltd; there is here no tendency to prejudice a jury trial.  But this case is nonetheless one of serious contempt.  I think the appropriate course is to order Mr Burke to pay a penalty of $10,000.

88                  The remaining question is that of costs.  NAALAS seeks an order, if it is successful on the contempt application, that the costs of that application be paid by Mr Burke and/or the Northern Territory government on an indemnity basis.

89                  I see no reason for an order against the Northern Territory government; the action that constituted contempt was an action for which Mr Burke ought to be regarded as personally responsible.  There is no justification for putting the burden of NAALAS’ costs on Northern Territory taxpayers.

90                  I am prepared to make an order for costs in favour of NAALAS against Mr Burke; but not on an indemnity basis.  I have an aversion to orders for indemnity costs.  I expressed my view in Coshott v Learoyd [1999] FCA 276 at para 51 in these words:

“… one of the difficulties about an order for indemnity costs is its open-ended nature.  Because the underlying concept is one of indemnity, the order allows recovery even of costs that have been unreasonably incurred, or incurred in an unreasonable amount.  The Court will rarely know whether such costs have been incurred.  So the Court risks making an order that is unreasonable in effect.  This is not a proper course to take, even as a response to unreasonable behaviour on the other side.”

91                  Callinan J, of the High Court of Australia, recently expressed a similar view in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26 at para 40.

92                  In Coshott v Learoyd I made a costs order that was modelled on that of the Full Court in Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151.  That order allowed recovery of “all costs except insofar as they are of an unreasonable amount or were unreasonably incurred so that, subject to such exceptions, (the successful party) will be completely indemnified by (the unsuccessful party)”.  I propose to make a similar order in this case.

93                  However, the costs payable to NAALAS should not include any costs incurred by it in relation to the adjourned hearing of 15 June.  That adjournment was occasioned by NAALAS’ late amendment of the statement of charge.  NAALAS should pay Mr Burke’s costs of that hearing.  Those costs should be assessed on the same basis as the costs of NAALAS.

94                  I see no reason for making a costs order in favour of the Northern Territory government.  As it is a party to the principal proceeding, the government was entitled to appear at the hearing of the motion, but this should be at its own expense.  The motion did not put the government, as distinct from Mr Burke personally, at risk.

Associate:

Dated:              24 July 2001