Public Service Association of Papua and New Guinea v South Pacific Post Ltd [1957] PGSC 1 (13 March 1957)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

(Judgment No. 97)

THE PUBLIC SERVICE ASSOCIATION OF PAPUA AND NEW GUINEA
Applicant

-and-

SOUTH PACIFIC POST LIMITED
Respondent

JUDGMENT

This is a motion for the committal of the respondent company for contempt. The circumstances giving rise to this motion are as follows:-

On the 9th of March there was a strike of Post Office native employees. In the issue of the respondent's newspaper, "The South Pacific Post" bearing date the 13th of March, 1957, a front page report of this strike was published. It is the contents of this article which are complained of as material constituting a contempt of the tribunal of the Arbitrator, which it is said is about to arbitrate on a certain question involving the period of working hours in the Public Service. In the newspaper article referred to appeared extracts from the reference of the applicants (the Administration of the Territory of Papua and New Guinea and the Public Service Commissioner) and extracts from the answer of the respondents thereto. There were certain comments on this strike in relation to the extracts. The portion of the newspaper article alleged to be objectionable is set out in the Notice of Motion as follows:-

"Post Office Natives Strike.

Longer Hours Cause Unrest.

About 20 natives employed by the Administration's Post and Telegraphs Department went out on strike last Saturday in protest against working five and a half days instead of five days.

They claimed that their hours should equal those worked by Europeans employed by the Administration. The strike is believed to be the first in the history of the Administration in Papua.

Administration officers said yesterday that they feared the strike would seriously weaken their case for a five day working week.

The Public Service Association has prepared a case for the retention of the five day week after an Arbitration Court ruling that no work on Saturday mornings for Administration departments should be given a six months' trial.

The trial period expired about nine months ago. Delays to the hearing wore caused by the Government's slowness in appointing an arbitrator to hear the case.

Knew Nothing

The Government recently appointed an arbitrator, and the case is due to be heard within a few weeks.

Most enquiries yesterday revealed that most Administration officers knew nothing of the strike by native postal employees.....

The strikers comprised native linesmen and other technicians.....

Officers agreed that the strike could weaken their case for a five day week.

They point out that in the Administration's arguments for a return to Saturday morning work the authorities claim that natives are or would be dissatisfied with the difference in hours worked by them and Europeans.

In answer to this the Public Service Association has demanded that the Administration give particulars of the natives who are dissatisfied.

Officers claim that the strike now enables the Administration to give these particulars."

It is contended by the applicants that the statements contained in the article tend to interfere with the due course of justice in that they tend to prejudice the fair hearing of the application for the rescission of that part of Decision No.1 of 1955 of the Arbitrator under the Arbitration (Public Service) Ordinance 1952 which deals with the five day week.

Before dealing with the matter of the contempt, I wished to be satisfied that the Supreme Court as a superior Court of Record had jurisdiction to protect the Arbitration tribunal from contempt of its proceedings. A Supreme Court has the general supervision of inferior Courts. It had been decided by his Court, by myself incidentally, that the Arbitration tribunal in this Territory was so much a Court that the prerogative writs such as mandamus and prohibition could issue out of the Supreme Court against it. In return for this authority of supervision and correction, it must follow that the Supreme Court should give the tribunal its protection whenever the necessity should arise. I hold, therefore, that I have jurisdiction to hear the motion for contempt.

A motion for contempt is, after all, a "short, sharp and prompt remedy necessary for the fair administration of justice to check all interference from outsiders with the members of the tribunal to which the decision has by law been entrusted" per Holroyd J in Re Byrne (1902) 28 L. R. R. at pg.560. The only justification for the summary process of a Court publishing a person for contempt is to protect the public from guarding the administration of justice from any obstruction or interference which might affect its purity, its impartiality or its effectiveness, per Isaacs and Rich JJ. in Bell v. Stewart (1920) 23 C.L.R. p.419 at p.428.

At p.432 the learned Justice, in their joint judgment, put the law succinctly thus:-

(1) publication referring to pending litigation is a technical contempt if it is one having a tendency to influence the result - this given the Court jurisdiction to influence the result – this gives the court jurisdiction to interfere; (2) the Court will not exercise its summary power of interference at the instance of a party unless, besides the tendency, the publication is likely to influence the result; (3) the Court adapts and proportions its remedy to the circumstances, wilfulness being for this purpose important, and imprisonment is reserved for extreme cases only."

As pointed out by Sir Samuel Griffith, C. J.:..

"Publishers of newspapers have not, of course, any greater rights with respect to publication than those enjoyed by other persons. It has, nevertheless, become part of the ordinary course of life in civilized communities to publish through the medium of the press information as to matters of interest to the public; using that torn to mean matters as to which the public entertain a natural and legitimate curiosity. It would be unfortunate for civilisation if satisfaction of such a curiosity by this means were prohibited: The motives for the curiosity may be infinitely various. The matter may be one of general public importance, or why be interesting to only a small class of readers.

"In our opinion the public are entitled to entertain a legitimate curiosity as to such matters as the violent or sudden death or disappearance of a citizen, the breaking into a house, the theft of property, or any other crime, and it is, in our opinion, lawful for any person to publish information as to the bare facts relating to such a matter. By 'bare facts' we mean (but not as an exclusive definition) extrinsic ascertained facts to which any eye-witness could bear testimony, such as the finding of a body and its condition, the place in which it is found, the persons by whom it was found, the arrest of a person accused, and so on. But as to alleged facts depending upon the testimony of some particular person which may or may not be true, and may or may not be admissible in a Court of Justice, other considerations arise. The lawfulness of the publication in such cases is conditional, and depends, for present purposes, upon whether the publication is likely to interfere with a fair trial of the charge against the accused person."

Per Griffith, C.J. in Packer v. Peacock [1912] HCA 8; (1912) 13 C.L.R. 577 at p.588.

If this were otherwise, a newspaper would be allowed to try an action before its hearing by the proper tribunal established by law to deal with it.

The kind of contempt which is alleged in the motion before the court is one of those which Lord Hardwicke, L.C. describes as "prejudicing mankind against persons before the cause is heard." St. James Evening Post Case 2 Atk. 469 at p.471. "That being so, this class of contempt must of necessity be jealously watched by any Court that desires to maintain evenly the balance of justice between the parties. It is not obsolete, and never can be, while justice is to prevail." Per Isaacs and Rich JJ. in Bell v. Stewart.

The consideration of this class of contempt by the Courts had to some extant become, I think, restrictive, with an emphasis upon the shock to the dignity of the Court. This, in my view, led Lord Russell, C.J. to seek to put some restraint upon the approach to such contempt. He said:-

"... I wish to express the view which I entertain, that applications of this nature have in many cases gone too far. We doubt the power which the Court possesses in such cases is a salutary power, and it ought to be exercised in cases where there is real contempt, but only where there are serious grounds for its exercise."Every libel on a person about to be tried is not necessarily a contempt of Court; but the applicant must show that something has been published which either is clearly intended, or at least is calculated, to prejudice a trial which is pending."

and Wright J. in the same case:-

"I agree with all that the lord Chief Justice has said, and I only wish to add that, in my opinion, in order to justify an application to the Court the publication complained of must be calculated really to interfere with a fair trial, and, if this is not the case, the question does not arise whether the publication is so objectionable in its terms as to call for the interference of the Court. If the publication is found to be likely to interfere with a fair trial, a second question arises, whether, under the circumstances of the case, the jurisdiction which the Court in that case possesses ought to be exercised, not so much for punishment as for preventing similar conduct in the future. That is the rule which I wish to adopt with regard to applications of this nature."

Reg. v. Payne and Cooper (1896) 1 Q.B.D. p.577 at pp.580, 581 and 582.

That there was a strike of native employees of the Posts and Telegraphs Department of the Administration on Saturday, 9th March, 1967 there is no doubt. This was made known to the Administration authority immediately and before the publication of the newspaper article. It does not appear clear whether the strike was because the native employees desired a five-day working week or not, but it does seem to be that they objected to working when the European employees were not.

The Administrator and the Public Service Commissioner are the respondents in an application by the Public Service Association of Papua and New Guinea for the rescission of a tentative determination made relating to the observance of a five-day week by officers of the Public Service, and for the making of a final decision for such observance.

In what might be called its pleadings, the respondents, inter alia, have stated as follows:-

"(i) There is evidence that natives employed by the Administration have already requested a five-day week;

(ii) Such employees consider that the non extension to them of a five-day week is an act of unjustifiable discrimination."

In the applicant's answer to this, the respondents are called upon to produce evidence of it. This material is set out substantially in the newspaper article complained of. In this respect, the publication has drawn attention to something which the parties know and the Arbitrator will have before him. If the fact of the strike is of any use to the respondents in their reply to the applicants, no doubt they will use it in evidence, and if they regard it as of no value, no doubt they will discard it unaffected by the newspaper article. It is evidence which may be put before the Arbitrator who will, if it is produced to him, consider it upon its merits. It is not to be supposed that the Arbitrator will consider any material which is not evidence in the arbitration, or assume facts gleaned from an outside source. No reasonable person would think that the comment complained of would influence the mind of the Arbitrator leading to an unfair hearing of the subject, if he should become aware of it.

The article in "The South Pacific Post" appears to me to have been published merely as news for the interest of the journal's reading public. Here was a strike among native employees of the Administration, probably the first (the newspaper says the first) in the history of the Territory, and it is a reasonable premise that in publishing the fact of the strike, the newspaper would wish, indeed I think it would be encumbent upon it, to go further and satisfy the curiosity of its readers as to the reasons for it. It is not suggested that the newspaper proprietors had any interest in the result of the arbitration, nor is it implied that the publication was intended to influence the determination of the Arbitrator. It was maintained that, in the words of Isaacs and Rich JJ. in Bell v. Stewart, it has a "tendency to weigh with the Court and with witnesses who might be called to state their opinion on the subject" and that witnesses on one side of the controversy "might easily find themselves more emphatic than they otherwise would have been" and that witnesses on the other "might as easily hesitate to state their views as confidently as they otherwise would." The publication of the article could have that tendency, but no more.

It does not appear on the face of it, nor has it been shown to me, how the publication of the article is likely to interfere with the fair hearing by the Arbitrator. It is not like the position where a jury case is pending and a newspaper publishes evidence which will be adduced at the trial and makes favourable or unfavourable comment upon it. That, on the face of it, would be likely to interfere with the course of justice.

Looking at the facts as a whole which have been put before me, I am satisfied that there has been a technical contempt because the matter complained of would have a tendency to influence the result of the arbitration. I must, however, go further than that in applying the principles, which I have sought to set out, in exercising the summary power of committal, because besides the tendency, it is to be determined whether the publication is calculated or likely to influence the result. In all the circumstances, I think the publication would not be likely to influence the result, and I extend to the respondents the benefit of the doubt.

I therefore dismiss the motion for committal, but make no order as to costs.

Counsel for the respondent newspaper has on this motion tendered the apologies of the paper for any contempt it might have committed. He submits it was quite unintentional, and the paper will be very willing and ready to publish any apology which may be required. As I have found that there is a technical contempt, I think it proper for the respondent newspaper to publish an apology and explanation in a form which will satisfy the applicant, the Public Service Association. Thus will the apology and explanation be published to the same readers as the article complained of.

A/C.J.