Chapter 2
Publication contempt

Publication contempt in civil proceedings

2.39In this section we discuss the law of contempt as it applies to public statements or publications that place improper pressure on litigants in civil proceedings.186 This category of contempt seeks to protect the public’s access to justice, free from restraint or intimidation, so they can determine disputes over their legal rights.187 There are two aspects to improper pressure on litigants. The first concerns the litigants in a particular case, while the second concerns the public as potential litigants.188 The risk is not just that the party in the case will be influenced, but that the conduct may inhibit people generally from using the courts to enforce their rights.189
2.40In Duff v Communicado Ltd Blanchard J in the High Court held:190

A public statement about civil litigation currently before a Court will be in contempt of Court if:

(a) it goes beyond fair and temperate comment; and

(b) either,

(i) when viewed objectively, it can be seen to have a real likelihood of inhibiting a litigant of average robustness from availing itself of its constitutional right to have the case determined by the Court; or

(ii) it is actually intended by the maker of the statement to have that inhibiting effect on a litigant.

This test is primarily objective, focusing on the probable tendency of the publication rather than its actual effect; but it encompasses the unfair and intemperate comment of someone who has set out to inhibit a litigant regardless of whether the comment actually succeeds in doing so.

2.41A Full Court of the High Court adopted this test in Smith.191 In that case Dr Nick Smith MP, Radio New Zealand, and TV3 faced contempt proceedings in response to their involvement in a family court custody case involving one of Dr Smith’s constituents. As we noted in the introduction to this chapter, the High Court’s inherent jurisdiction includes this protective jurisdiction of upholding the authority of lower courts and tribunals.192
2.42Dr Smith had issued press releases, conducted interviews on radio and television and phoned the caregiver of the child involved in the custody dispute. The High Court held that Dr Smith’s comments in his media releases and on the radio were in contempt. The Court described the comments as one-sided, emotive and extreme and held they went well beyond what was fair and temperate and were made with the intention of persuading the caregiver to surrender custody.193 The Court found that, objectively viewed, the comments were likely to inhibit a litigant of average robustness from availing themselves of having the Family Court determine their case.194
2.43Radio New Zealand was also held in contempt in relation to its broadcast of its interview with Dr Smith. TV3, which had aired a documentary on the custody dispute, was held in contempt for the biased nature of the programme covering the issue. The Court found that TV3 intended to place improper pressure on the caregiver, and even if not intended, this was undoubtedly the effect of the programme. The pressure also translated to a risk of dissuading other similarly placed litigants from going to the Family Court.195 The Court’s decision in Smith reflected the essence of this contempt and provides the clearest illustration of what is being protected in this area.
2.44While Smith still represents the law, a more recent High Court judgment in Progressive Enterprises Ltd v North Shore City Council raises questions over whether the standard of “a litigant of average robustness” is an appropriate one where the actual parties are in fact “formidably robust” parties.196 In that case the National Trading Company Ltd (NTC) had received resource consent from the North Shore City Council to build a new supermarket. Progressive successfully challenged the consent in the High Court. The Council and NTC appealed. Pending the appeal, NTC launched a wide-ranging media campaign encompassing newspaper, radio, flyers and bus-shelter posters. The tenor of the campaign was that Progressive’s court action was preventing NTC from opening a supermarket on the North Shore thereby depriving the public of lower prices. Progressive responded with contempt proceedings.
2.45Justice Baragwanath considered that, if he applied the test developed in Duff and Smith, NTC’s media campaign would be in contempt because it went beyond fair and temperate comment and would inhibit a person of “average robustness” from going to court. He concluded, however, that the tests in Duff and Smith “do not provide the whole of the guidance necessary in this case”.197 As both companies were “economically powerful and in direct competition”,198 the Judge considered a “litigant of average robustness” was an inappropriate measure of criminal liability where the party under attack is a “formidably robust party”.199
2.46Justice Baragwanath reverted to the underlying principles identified by the Court of Appeal in Gisborne Herald, namely that contempt proceedings ultimately turn on four key questions:200

(a) As a matter of practical reality, was there a real risk, as distinct from a remote possibility, of interference with the administration of justice?

(b) In the circumstances, was the conduct improper?

(c) Was it proportionate to characterise the conduct as criminal?

(d) If so, what penalty, if any, should be imposed?

The Judge held in that case the question was whether NTC’s campaign “created a real risk that Progressive would be shamed into abandoning its opposition to NTC’s application”.201 On evaluation, the Court could “see no risk whatever to that effect” so concluded that NTC’s media campaign was not in contempt.202
2.47While some might consider Baragwanath J to have expounded a new test of improper conduct for contempt, his decision should be regarded as taking a more discriminating approach that takes into account whether a media campaign against a strong, financially resourced opponent would, in reality, deter less robust individuals from resorting to the courts to determine their disputes. The decision recognises an ordinary person would look at NTC’s media campaign and see it was a strategy against a formidable, well-resourced competitor and unlikely to be employed against a smaller shop owner. The Judge explicitly stated, if NTC employed the same strategy against a smaller competitor, the risk of unlawful interference might arise.203

2.48Progressive links this form of contempt back to the overarching principle behind all contempt: whether there is a real risk that the conduct interferes with the administration of justice. Where the interference is to a citizen’s resort to the courts, the parties and their financial positions in respect of each other form part of the context in which courts assess the risk.

186In practice most civil proceedings are heard by a judge sitting alone, so there is limited risk that anything published may interfere with the decision. Civil jury trials are referred to in chapter 4 at [4.2].
187Attorney-General v Times Newspapers Ltd [1974] AC 273 (HL) at 307; Solicitor-General v Smith, above n 141, at [41]–[44].
188Solicitor-General v Smith, above n 141, at [45] and [47].
189Pharmaceutical Management Agency Ltd v Researched Medicines Industry Association New Zealand Inc [1996] 1 NZLR 472 (HC) at 476.
190Duff v Communicado Ltd [1996] 2 NZLR 89 (HC) at 98.
191Solicitor-General v Smith, above n 141, at [41]–[44] citing Attorney-General v Times Newspapers Ltd, above n 187. See also chapter 6 at [6.22].
192Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) at 616.
193Examples of the comments made included “this case almost amounts to state sanctioned child stealing” and “a warrant [from the Court] for the child to be ripped out of his family’s arms”; Solicitor-General v Smith, above n 141, at [58].
194Solicitor-General v Smith, above n 141, at [60].
195Solicitor-General v Smith, above n 141, at [98]–[102].
196Progressive Enterprises Ltd v North Shore City Council [2006] 2 NZLR 262 (HC) at [37].
197At [28].
198The Court noted that at the time, Progressive operated Foodtown, Woolworths and Countdown supermarkets and had approximately 44 per cent of the New Zealand supermarket expenditure on food and groceries and NTC’s brands included Four Square, New World and PAK’n SAVE and had the remaining 56 per cent share; at [8].
199At [37].
200At [40].
201At [45].
202At [48].
203At [50]. See also Doug Hood Ltd v Canterbury Regional Council (1998) 13 PRNZ 80 (HC) at 86. Doug Hood sought an interim injunction preventing the release of a report into the collapse of the Opuha Dam, pending civil and criminal proceedings into the collapse. William Young J, in refusing to grant the relief, held that “Doug Hood Ltd can be, I think, regarded as a reasonably robust litigant which has already been involved in heavy publicity over its role in the collapse of the dam. I would think it quite able to deal with the media and quite unlikely to be cowed into an inappropriate settlement by reason of what is said in the report in issue”.