Federal Court of Australia

Lattouf v Australian Broadcasting Corporation (Contempt) [2025] FCA 812

ORDERS

THE COURT ORDERS THAT:

1.    The Intervening Parties’ interlocutory application filed on 26 February 2025 seeking an order under r 42.16 of the Federal Court Rules 2011 (Cth) directing the Principal Registrar to make an application for punishment of the respondents to the interlocutory application for contempt of the Court be dismissed.

2.    The Intervening Parties pay half of the costs of the respondents to the interlocutory application as between party and party.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    The interlocutory application presently before the Court seeks an order under r 42.16 of the Federal Court Rules 2011 (Cth) (the Rules) directing the Principal Registrar to make an application for the punishment of six individuals and two companies (the Alleged Contemnors) for contempt of the Court.

2    In the principal proceeding, the applicant, Antoinette Lattouf, alleged that the respondent, the Australian Broadcasting Corporation (the ABC), contravened ss 50 and 772(1)(f) of the Fair Work Act 2009 (Cth). The hearing was conducted in February 2025. On 25 June 2025, I found that Ms Lattouf’s allegations had been proven and granted consequential relief: see Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669.

3    The names and contact details of persons who made complaints to the ABC about its employment of Ms Lattouf were revealed in affidavits filed in the principal proceeding. Nine such persons (the Intervening Parties) applied for an order prohibiting publication and disclosure of their identities and contact details. The proposed order was not opposed by Ms Lattouf and the ABC.

4    On 3 February 2025, the first day of the hearing, I made a suppression and non-publication order (the Order) in the following terms:

Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act) and on the ground that it is necessary to protect the safety of persons, for a period of 10 years, the names, identities, contact details and addresses of persons who made complaints to the respondent about its employment or engagement of the applicant in December 2023, are not to be published or otherwise disclosed, and may only be accessed from the Court file by the Court, Court staff, a party to these proceedings and their legal representatives.

5    In my reasons, I noted that the hearing was being live-streamed and that an online file had been established to which affidavits read in open court, exhibits and other documents would be uploaded and be accessible to members of the public. This had the consequence of bypassing the process under r 2.32(4) of the Rules, which requires that the Court’s leave be sought to access affidavits that have been filed. I was satisfied that the Order was necessary to protect the safety of the Intervening Parties because of a substantial risk they would face, at least, vilification and harassment if their identities and contact details were available to the public: see Lattouf v Australian Broadcasting Corporation [2025] FCA 62.

6    The interlocutory application is concerned with the following news articles:

    An article first published in The Age and The Sydney Morning Herald (The SMH) on 16 January 2024.

    A second article first published in The Age and The SMH on 16 January 2024.

    An article first published by Pedestrian TV on 16 January 2024.

    An article first published in The SMH on 17 January 2024.

7    It may be observed that each of the articles was first published about a year before the Order was made on 3 February 2025. The articles remained available online even after the Order was made. The Intervening Parties allege that the Order required the publishers to take down the articles and that the Alleged Contemnors contravened the Order by failing to do so.

8    Although the Intervening Parties submit that another article published in The SMH on 3 February 2025 also breached the Order by referring to the January 2024 Articles, they do not allege any contempt in respect of that publication because the article was amended to remove that reference on the same day.

9    The Alleged Contemnors are:

    The Age Company Pty Ltd (publisher of The Age);

    Fairfax Media Publications Pty Ltd (publisher of The SMH);

    Bevan Shields (editor of The SMH);

    Patrick Elligett (editor of The Age);

    Larina Alick (in-house lawyer);

    Sam White (in-house lawyer);

    Calum Jaspan (journalist who co-wrote the newspaper articles); and

    Michael Bachelard (journalist who co-wrote the newspaper articles).

10    On 3, 4, 6, 7, 10 and 11 February 2025, the lawyers for the Intervening Parties wrote to various of the Alleged Contemnors asking that The Age and The SMH articles of 16 and 17 January 2024 be taken down. They received no response other than a couple of automated out-of-office notifications and one acknowledgement of receipt. The Intervening Parties submit that the fact that their correspondence was ignored is evidence of contumelious conduct, supporting their claim that it is appropriate for the Registrar to bring proceedings for contempt.

11    The lawyers for the Intervening Parties also wrote to Pedestrian TV on 7 February 2025 asking for its article to be taken down. There was a reply indicating that Pedestrian TV was legally represented and that future correspondence should be directed to the email address, legal@nine.com.au. That was apparently the email address for the legal department of the group of companies known as “Nine Entertainment Group” (Nine), which includes The Age Company Pty Ltd and Fairfax Media Publications Pty Ltd. I was informed that Pedestrian TV is “owned by a subsidiary of Nine”, which is not one of the Alleged Contemnors.

12    On 11 February 2025, the lawyers for the Intervening Parties sent an email to my Associate asking me to make a “direction” to the effect that Nine and their associated entities comply with the Order. My Associate informed the lawyers I would not make any direction or order without an application having been made, but that I proposed to mention the gist of their email in Court the following day in the hope that might result in the resolution of any problem.

13    On 12 February 2025, I said in open Court, “the media organisation that is involved [should] carefully consider their position and take any remedial action that is necessary to ensure compliance with the order so that course may avoid any application being made”.

14    The lawyers for the Intervening Parties wrote again to the Alleged Contemnors on 12 February 2025 noting that the articles remained online. Again, there was no substantive response.

15    The Intervening Parties filed the present application on 26 February 2025.

16    There is evidence that after the Order was made, members of the public who were motivated to discover the identities of the persons protected by the Order accessed one of the articles online and identified a person named in the article in messages on the social media platform, X.

17    The articles published by The Age and The SMH were amended on 16 March 2025 to remove the names of the relevant persons without any admission that the publishers were obliged to do so. The Pedestrian TV article was taken down on 30 April 2025, again without any admission. The Intervening Parties accept that as the articles have been amended or taken down, there is no ongoing contempt.

18    Rule 42.16 of the Rules provides:

42.16    Application or proceeding by a Registrar

(1)    If it is alleged that a person is guilty of contempt of the Court, a party may apply to the Court for an order directing a Registrar to make application in the proceeding, or to start a proceeding, for punishment of the contempt.

(2)    Subrule (1) does not affect any right of a person to make application in the proceeding for, or to start a proceeding for, punishment of contempt.

Note:    The Court can act on its own initiative—see rule 1.40.

19    Rule 42.11 provides, relevantly, that:

42.11    Procedure generally

(1)    If a party alleges that a contempt has been committed by a person in connection with a proceeding in the Court, an application for punishment for the alleged contempt must be made by the party by interlocutory application in the proceeding.

…

20    In Schedule 1 of the Rules, the expression “party” is defined to mean, “a party to a proceeding”. A “proceeding” takes its meaning from s 4 of the Federal Court of Australia Act 1976 (Cth) (the Act), as, “a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding...”. Accordingly, each of the Intervening Parties is a “party” who is entitled to make an application under rr 42.11 and 42.16.

21    The Intervening Parties submit that the Court should determine their application for an order under r 42.16 by applying the factors identified by Besanko J in Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 743 at [11]:

The applicant’s application raises four matters. First, it is necessary to consider whether the respondents’ conduct could constitute a contempt of court. Secondly, it is necessary to consider whether there is a more appropriate procedure for enforcing the orders of the Court. Thirdly, it is necessary to consider whether on the material before the Court there is a sufficient case of contempt. Finally, it is necessary to consider whether there are reasons which in the exercise of the Court’s discretion militate against the making of the order sought by the applicant.

22    I understand Besanko J to have elucidated the matters relevant to the determination of the case before his Honour, rather than describing principles to be applied in every case. In any event, the second factor is not relevant in this case as there is no allegation of continuing disobedience of the Order.

23    In Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 686 (Independent Education Union), Jessup J held at [62]:

…[A] party applying under r 42.16 is not entitled to have a direction made, however strong his or her case for contempt may be. The decision whether to make such a direction is entirely a matter for the discretion of the court – a discretion which may be exercised one way or the other by reason of circumstances which have nothing to do with what might be called the merits of the case, such as the resources available to the Registrar for a proceeding of the kind contemplated and his or her exposure to an order for costs in such a proceeding.

24    I agree that the Court has a broad discretionary power under r 42.16 of the Rules that must be exercised according to the particular circumstances of the case.

25    In Boase v Sullivan Commercial Pty Ltd t/as McGees Property (No 4) [2013] FCA 195 (Boase) at [8]-[9], McKerracher J, citing the judgment of Reeves J in CT Sheet Metal Works Pty Ltd v Hutchinson (2012) 201 FCR 275 at [29], considered that r 42.16 contemplates a two-step process. The first step is to determine whether there is sufficient material before the Court to justify ordering the Registrar to take proceedings to prosecute what may appear to be a contempt of court. The second is to determine whether, in the exercise of the discretion, there is sufficient reason, in all of the circumstances, to justify ordering the Registrar to pursue proceedings for contempt. It is not necessary, at this stage, for the Court to make any finding that a putative contemnor is actually guilty of contempt of court: Boase at [8].

26    It is apparent that the Court would not order the Registrar to start a proceeding for contempt that has no reasonable prospect of succeeding. It can be accepted, as a general proposition, that the more obvious or blatant the alleged contempt appears to be, the more likely it is that the Registrar would be ordered to commence a proceeding for contempt. This proposition takes into account both the undesirability of the Registrar expending public funds in prosecuting a case of doubtful merit and the possibility of costs being ordered against the Registrar.

27    It can also be accepted that an apparently deliberate or contumelious breach of an order is more likely to warrant an order that the Registrar commence a proceeding for contempt.

28    Contravention of a non-publication or suppression order (either by act or omission) is an offence under s 37AL of the Act. Sub-sections 37AL(2)-(4) expressly contemplate that contravention of such an order may also constitute contempt.

29    In R v Herald & Weekly Times Pty Ltd (Ruling No 2) [2020] VSC 800 (Herald & Weekly Times), Dixon J, citing R v Hinch [2013] VSC 520, held at [81] that to establish contempt of court on the basis of publication of a report in breach of a suppression order, the applicant must prove beyond reasonable doubt that:

(a)    the respondent published the article (or caused it to be published);

(b)    the publication of the article frustrated the effect of the suppression order because it contained material that was contrary to or that infringed the terms of the order; and

(c)    when the article was published, the alleged contemnor’s knowledge of the terms and effect of the order was such that a reasonable person with that knowledge would have understood that the continued publication of the article would have the tendency to frustrate the efficacy of the order.

30    In Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245, the High Court held at 258:

An intention to interfere with the administration of justice is not necessary to constitute a contempt; the critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important. A lawful act may constitute a contempt if done with the intention of interfering with the course of justice, but will not become a contempt simply because it was done to achieve some purpose or further some interest of the person doing it.

31    The court order alleged to have been contravened must be in sufficiently “clear and unambiguous terms”: Hogan v Hinch (2011) 243 CLR 506 (French CJ) at [19]; Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 at [23]-[36].

32    The articles published by The Age and The SMH on 16 January 2024 disclosed the name of a WhatsApp group said to have organised a letter-writing campaign demanding that Ms Lattouf be sacked. The articles named four persons as being associated with the campaign. Two of them are Intervening Parties. The articles directly named one of those two persons as having made a complaint to the ABC in December 2023 about Ms Lattouf’s employment. It is reasonably arguable that by indicating other named persons encouraged members of the group to write to the ABC, the articles suggested that the named persons had already written to the ABC. The article of 17 January 2024 contained a link to The SMH articles published on 16 January 2024.

33    The Pedestrian article did not directly state that any of the persons named in the article made a complaint to the ABC, but, again, it is reasonably arguable that by indicating other named persons encouraged members of the group to write to the ABC, the article suggested that the named persons had already written to the ABC.

34    The Intervening Parties submit that the Order protected all persons who made complaints about the ABC’s employment of Ms Lattouf in December 2024 from publication or disclosure of their identities, not merely the nine Intervening Parties.

35    I understand the Intervening Parties to assert that each of the Alleged Contemnors had the power to amend or take down the articles and that, by failing to do so, they “published or otherwise disclosed information” between 3 February and 16 March or 30 April 2025 that revealed the identities of persons protected by the Order.

36    The Intervening Parties also submit that the natural persons who are alleged to have committed contempt did so by “knowingly assist[ing]” the contempt committed by the corporations, or, “flouting the authority of the court by doing something that he or she knows will prevent the court order achieving its intended object”, referring to Australian Securities and Investments Commission v One Tech Media Limited (No 3) [2018] FCA 1071 at [111] and [116] (Moshinsky J) and Z Ltd v A-Z and AA-LL [1982] QB 558 at 578 (Eveleigh LJ).

37    The Intervening Parties submit that Ms Alick and Mr White, the in-house lawyers, were aware of the Order and ignored, or at least did not respond to, the correspondence. However, the Intervening Parties accept that they do not know what the in-house lawyers may have done or said in relation to the correspondence. Nevertheless, they submit that if the in-house lawyers advised the other Alleged Contemnors that the proper construction of the Order was such that the articles did not have to be taken down, then, by giving that legal advice, they could be parties to the contempt, relying on R v Witt [2016] VSC 142 (Witt).

38    The Alleged Contemnors submit that there was no breach of the Order. They submit that, properly construed, the Order only prohibited the publication or disclosure of the identities of the nine individuals who comprise the Intervening Parties and only to the extent that such information was derived from material on the Court file or from the proceedings. They contend that these propositions are supported by the terms of the Order (the proscribed information “may only be accessed from the Court file” by certain persons) and my reasons (which indicate the concern was to ensure that information revealed in any affidavits did not give rise to a risk to the Intervening Parties’ safety). They also submit that as a matter of construction of s 37AF(1) of the Act, the Court does not have a general power to restrict publication of information derived and published independently of the proceedings, referring to Hogan v Hinch (2011) 243 CLR 506 at [34]-[38], [73]-[75].

39    The Alleged Contemnors’ argument continues that the four articles did not publish any information about any of the Intervening Parties derived from material on the Court file or from the proceedings. That information had been obtained and published independently of the proceedings, before the proceedings were commenced.

40    The Alleged Contemnors submit that even if there was a breach of the Order, the breach did not amount to a contempt in circumstances where they did not know the identities of the Intervening Parties. In other words, they did not have knowledge of what information was protected by the Order. They submit there is no real prospect of establishing the third limb of the test in Herald & Weekly Times.

41    The Alleged Contemnors also argue that there is no arguable case that Ms Alick and Mr White and the journalists contravened the Order. They rely on evidence given on information and belief by a lawyer, Mr Bartlett, that those individuals do not have the power or authority to remove or edit articles which have been published on the websites of The Age and The SMH, without approval. Mr Bartlett also deposes when the correspondence of 7 February 2025 at 8.53 pm was sent to Mr White by email, that Mr White was on leave and, when he returned to work, he had no responsibility for the carriage of the matter. He also deposes that Ms Alick and Mr White do not have access to, or control or oversight of, the email inbox of the email address legal@nine.com.au.

42    I am satisfied that the Intervening Parties have established a reasonably arguable case of contempt against The Age Company Pty Ltd, Fairfax Media Publications Pty Ltd, Mr Shields, Mr Elligett, Mr Blanchard and Mr Jaspan.

43    However, I am not satisfied that the Intervening Parties have established a reasonably arguable case of contempt against Ms Alick and Mr White. There is no evidence that they had any control over the content or publication of the articles. There is no evidence that they gave advice that it was not necessary to take the articles down, but, even assuming they did, there is a reasonable argument that the advice was correct. The situation is not comparable with that in Witt, and the Intervening Parties were unable to point to any authority concerning the prosecution of a lawyer for contempt on the basis that they gave advice about the construction of an order that turned out to be incorrect.

44    I am not satisfied that the Intervening Parties have established a reasonably arguable case of contempt against any of the Alleged Contemnors in respect of the Pedestrian TV article. The Intervening Parties have not provided any evidence that any of the Alleged Contemnors were responsible for the publication of that article. It appears that the publisher of that article is a company that is not a respondent to the present application.

45    I am satisfied that all of the Alleged Contemnors have established a reasonably arguable basis for defending the allegations of contempt. They have demonstrated a reasonably arguable case that the Order only protected the nine Intervening Parties and only protected information derived from material on the Court file or from the proceedings. Further, they have a reasonably arguable case, that in the absence of being notified of the identities of the relevant nine Intervening Parties, they could not know what information they were prohibited from disclosing.

46    There would be considerable resources expended by the Registrar and exposure to an order for costs in prosecuting a proceeding of uncertain strength. I consider it undesirable to say more about the respective prospects of the parties since I may have to ultimately decide the case.

47    The Intervening Parties advance their case on the basis they have a private interest in a determination by the Court that the Alleged Contemnors are guilty of contempt. They submit that as the Alleged Contemnors have not admitted any contraventions of the Order and have not offered any undertakings not to republish the articles, there remains a danger of future contraventions that will put them at risk of harm.

48    It must be recognised that there is also a public interest in requiring compliance with the orders of a court, whether or not compliance also serves a private interest. In Witham v Holloway (1995) 183 CLR 525, the plurality observed at 532-534:

…[T]here is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court’s authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.

…

And as already indicated, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect. Indeed, if the person in breach refuses to remedy the position, as is not unknown, their only effect will be the vindication of judicial authority. Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings alleging breach of an order or undertaking, it is necessary to acknowledge, as it was in Mudginberri [(1986) 161 CLR 98 at 108], that punitive and remedial objects are, in the words of Salmon LJ “inextricably intermixed”.

49    The public interest in the vindication of judicial authority favours the making of an order that the Registrar commence an application for punishment for contempt, particularly in a case where an alleged contempt will not otherwise be prosecuted: see Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102 at [62], [65] and [67].

50    It is relevant to the exercise of the discretion that all the names referred to in the articles published by The Age and The SMH have now been removed and the article by Pedestrian TV has now been taken down. The Intervening Parties do not allege there is any ongoing contravention of the Order.

51    Although the Intervening Parties point out that the Alleged Contemnors have not admitted any contraventions and there is a possibility that the articles may be republished in their original forms in the future, that seems quite unlikely, particularly in view of the threat of further litigation. If that possibility does come to pass, it will be open to the Intervening Parties to renew their application.

52    If an order is not made under r 42.16, it will still be open to the Intervening Parties to themselves commence a proceeding for contempt against the Alleged Contemnors under r 42.11 of the Rules. They have not filed any material indicating any lack of financial capacity to prosecute such a proceeding. They obviously have had the means to pursue the present application. I am unable to draw any inference that any proceedings for contempt would be stifled if an order under r 42.16 is not made.

53    In Independent Education Union, Jessup J observed at [64]:

…The applicants and their professional advisers are, I am entitled to infer, already most of the way along the path of putting together such evidentiary material as would be necessary to make good their allegations. By contrast, the Registrar would be obliged to brief counsel who knew nothing about the case and to take proofs from the ground up, as it were. If, as appears to be the situation, the applicants are keen to see justice done in relation to the contempts which they allege, they are themselves, in my view, the ones most naturally placed to conduct such a case before the court.

54    The present case is analogous. The Intervening Parties have presented substantial evidence and detailed argument over two days asserting they have demonstrated, “a very clear, contumelious contravention of the order”. I consider the Intervening Parties are “the ones most naturally placed” to conduct proceedings for contempt of Court.

55    In these circumstances, the Court’s discretion will be exercised against directing the Principal Registrar to make an application for punishment of the Alleged Contemnors for contempt of the Court.

56    The Alleged Contemnors submit they should have their costs paid on an indemnity basis because the application should never have been brought.

57    The Intervening Parties submit that Alleged Contemnors should pay their costs because of their complete failure to respond to correspondence and their failure to heed the warning given in open Court.

58    I accept that the abject failure of the Alleged Contemnors to respond to the correspondence of the Intervening Parties’ lawyers was discourteous and unhelpful. They have not provided any explanation for their conduct. Moreover, it is possible that a response explaining why they did not consider the Order to have been breached might have avoided the present application being made.

59    Nevertheless, the Intervening Parties had no reasonable basis to bring the proceeding against Ms Alick and Mr White and had no reasonable case in respect of the article published in Pedestrian TV. Further, even after they became aware of the Alleged Contemnors’ arguments they continued with the interlocutory application, taking the risk that it may be unsuccessful.

60    In these circumstances, the appropriate order is that the Intervening Parties pay half the Alleged Contemnors’ costs as between party and party.

Associate:    

Dated:    18 July 2025