Chapter 6
Abusive allegations and false accusations against judges and courts

Issues with common law

Summary process

6.34Like all common law contempt, scandalising the court is punishable in New Zealand by way of summary process for committal.514 Responsibility for initiating the process rests with the judge concerned (but only where the offending conduct occurs during proceedings before one of the higher courts) or with the Solicitor-General, who commences the proceeding by way of originating application in accordance with the High Court Rules.515 The District Courts and other courts or tribunals that source their jurisdiction from statute do not have jurisdiction in respect of this contempt. Instead, the High Court’s inherent jurisdiction extends to upholding the authority of the lower courts and tribunals.516

Proof of intentionTop

6.35A successful case does not require proof of an intention to lower the authority of the judge or court.517 The Court of Appeal has said there must be a real risk, as opposed to a remote possibility, that the criticism involved would undermine public confidence in the administration of justice.518 This is the same real risk test we outlined and discussed in detail in chapter 2.519

Defence of truthTop

6.36It is unclear whether defences of fair comment, truth or justification (public benefit) are available.520 In Attorney-General v Blomfield, the majority of the Full Court of the then Supreme Court considered that the summary procedure in a contempt case was not suitable for inquiries of this nature.521 It is arguable that to allow truth as a defence would open up the possibility of the conduct of judges (both past and present) being subject to investigation and judgment. On the other hand, how could truth not be a defence?
6.37In the United Kingdom, the Phillimore Committee,522 which in 1974 reviewed and made recommendations relating to contempt, suggested that truth could be a defence if there was an additional element of public benefit.523 Professor ATH Smith has noted, however, there is likewise authority to suggest that fair criticism of judges that is true itself has a public benefit, implying that there is no additional element of public benefit required.524
514Solicitor-General v Radio Avon Ltd, above n 458, at 235.
515McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR19.3.01].
516Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) at 616.
517Solicitor-General v Radio Avon Ltd, above n 458, at 232.
518At 229 and 232–233.
519At [2.69]–[2.72].
520Eady and Smith, above n 497 at [5-204]; Attorney-General v Blomfield (1913) 33 NZLR 545 (SC); and Solicitor-General v Radio Avon, above n 458, at 231.
521Attorney-General v Blomfield, above n 520, per Stout CJ at 559, Williams J at 563, and Denniston J at 570. See also Solicitor-General v Radio Avon Ltd, above n 458, at 231.
522Phillimore, above n 504.
523This approach was taken by the High Court in Australia in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 39.
524ATH Smith Reforming the New Zealand Law of Contempt: An Issues/Discussion Paper (Crown Law Office, April 2011) at [3.52]‒[3.56].