22

SUPREME COURT

HARKIANAKIS

[(1997)

SKALKOS

Court of Appeal: Mason P, Powell JA, Beazley JA

27, 28 February, 3 March, 25 June 1997
Contempt What constitutes Interference with course of justice and
administration of law Publication offensively critical of party to
pending proceedings Publication by other party Pending defamation
proceedings Practical reality of publication Right to ventilate
matters of public interest Whether director of publishing company
liable.
Contempt What constitutes Interference with course of justice and
administration of law Prejudicing trial of civil action Defamation
proceedings Publication offensively critical of party to litigation
Publication by other party Practical reality of publication Right to
ventilate matters of public interest Whether director of publishing
company liable.
Contempt Attachment and committal As method of punishment The
proceedings Who may be punished Newspaper article Whether
director of publishing company liable.

Contempt Attachment and committal Practice Summons in Court of

Appeal Proceedings not in connection with proceedings Publication
offensively critical of litigant by other litigant Supreme Court Act 1970,
s 48.
On a claim charging contempt of court in relation to several articles published in
newspapers, the alleged contempts related to defamation proceedings between the
same parties but arising out of different articles. The proceedings were commenced
by motion on notice in the principal proceedings.
Held: (1) The claim being one of criminal contempt, when intent to deter is not
shown, the court has to be satisfied, to the criminal standard, that the publication
had, as a matter of practical reality, the impugned tendency to interfere with the
course of justice in the particular case. (27D-G, 60E, 62E-64B, 69F)
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 and Hinch v
Attorney-General (Vic) (1987) 164 CLR 15, applied.
(2) If the effect of the publication of the matter complained of would subject a
litigant to improper pressure to discontinue, or to compromise proceedings or
would expose a litigant to a real risk that potential jurors in a pending trial would
be prejudiced then the publication complained of might properly be regarded as
having had the appropriate tendency and thus constituting contempt of court. (25G29B, 64A, 69F)
(3) In determining the question of practical reality regard must be had to the
material published and to the probabilities as at the date of publication. (28G, 64B,
69F)
Attorney-General for New South Wales v John Fairfax & Sons Ltd (1985)
6 NSWLR 695 and Attorney-General v MGN Ltd [1997] 1 All ER 456, applied.

42 NSWLR 22]

HARKIANAKIS v SKALKOS

(4) (By Mason P, Beazley JA concurring) The onus of displacing the possible
defence that the tendency of the publication to interfere with the administration
of justice was merely incidental but not an intended by-product of the ventilation
of a matter of public interest rests on the prosecution with ultimately the question
being whether in the context the prejudicial effect of the material outweighs its
public interest. (38C-E, 69F)
Ex parte Bread Manufacturers; Re Truth and Sportsman Ltd (1937) 37 SR
(NSW) 242; 54 WN (NSW) 98, affirmed.
(5) (By Mason P, Beazley JA concurring) The whole context needs to be
examined before what is said and the manner in which it is expressed can be
identified as having crossed the line between the offensive and the contemptuous.
But that line is crossed when it is proved that the publication has the tendency to
deter and where a party is vilified without justification because he is a litigant or
because of the litigation or the allegations made in it. (42C, 69F)
Meissner v The Queen (1995) 184 CLR 132 and Attorney-General v Times
Newspapers Ltd [1974] AC 273, applied.
(6) (By Powell JA, Mason P concurring) In the case of a newspaper company,
the directors will not normally be held responsible for a contempt by publication,
but if they or any of them actually involve themselves in publication they should
be held liable for any contempt which might be committed. (61D)
Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143, applied.
(7) (Powell JA dissenting) The opponents were guilty of contempt in respect of
one of the articles published.
(Obiter) The proceedings ought to have been commenced by way of substantive
summons in the Court of Appeal; they were not proceedings in connection with the
principal proceedings within the Supreme Court Rules 1970, Pt 55, r 6(1). (25F,
69D)
Note:
A Digest (3rd ed) PROCEDURE [677], [683], [715], [736]

23

CASES CITED
The following cases are cited in the judgments:
Abram v National Australia Bank Ltd (Court of Appeal, 1 May 1997, unreported)
Attorney-General for New South Wales v John Fairfax & Sons Ltd (1985)
6 NSWLR 695
Attorney-General v English [1983] 1 AC 116
Attorney-General v Hislop [1991] 1 QB 514
Attorney-General v Leveller Magazine Ltd [1979] AC 440
Attorney-General v MGN Ltd [1997] 1 All ER 456
Attorney-General v News Group Newspapers Ltd [1987] QB 1
Attorney-General v Times Newspapers Ltd [1974] AC 273
Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143
Auld, Ex parte; Re Consolidated Press Ltd (1936) 36 SR (NSW) 596;
53 WN (NSW) 206
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986)
161 CLR 98
Australian Iron & Steel Ltd, Ex parte (1959) SR (NSW) 119; 76 WN (NSW) 52
Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641
Barnes, Re (1968) 87 WN (Pt 1) 479; [1968] 1 NSWR 697
Beard v W R Rolph & Sons Pty Ltd, Re [1955] Tas SR 19
BLF Case; Victoria v Australian Building Construction Employees' and Builders
Labourers' Federation (1982) 152 CLR 25
Bread Manufacturers, Ex parte; Re Truth and Sportsman (1937) 37 SR (NSW) 242;
54 WN (NSW) 98

24

SUPREME COURT

Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540

Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554
Court of Appeal, Registrar of the v John Fairfax Group Pty Ltd (Court of Appeal,
21 April 1993, unreported)
Court of Appeal, Registrar of v Willesee (1985) 3 NSWLR 650
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Duff v The Queen (1979) 39 FLR 315
Equiticorp Finance Ltd (In Liq) v Bank of New Zealand (1993) 32 NSWLR 50
European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
Fry v Bray (1959) 1 FLR 366
Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563
Goldman and Rule Nisi for Contempt of Court, Re (1968) 89 WN (NSW) (Pt 1) 175; 89
WN (NSW) (Pt 1) 182; [1968] 3 NSWR 325
Greenpeace New Zealand Inc v Minister of Fisheries [1995] 2 NZLR 463
Hinch v Attorney-General (Vic) (1987) 164 CLR 15
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351
Jones v Registrar of the Court of Appeal (1993) 22 Leg Rep SL 1
Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981)
148 CLR 245
Lonrho Plc, In re [1990] 2 AC 154
Martin, In re, The Times, 23 April 1986
McCay and Baume, Ex parte; Re Consolidated Press Ltd (1936) 36 SR (NSW) 592;
53 WN (NSW) 212
Meissner v The Queen (1995) 184 CLR 132
Nationwide News Pty Ltd v Willis (1992) 177 CLR 1
Public Prosecutions, Director of v Wran (1986) 7 NSWLR 616
R v Bolam; Ex parte Haigh (1949) 93 Sol J 220
R v Editor of the Daily Mail; Ex parte Factor (1928) 44 TLR 303
R v Evening Standard Co Ltd [1954] 1 QB 578
R v Griffiths; Ex parte Attorney-General [1957] 2 QB 192
R v Odhams Press Ltd; Ex parte Attorney-General [1957] 1 QB 73
R v Thomson Newspapers Ltd; Ex parte Attorney-General [1968] 1 WLR 1;
[1968] 1 All ER 268
Smith v Lakeman (1856) 26 LJ (NS) Ch 305
St James' Evening Post, Re; Roach v Garvan (1742) 2 Atk 461; 26 ER 683
Sunday Times Case; Attorney-General v Times Newspapers Ltd [1974] AC 273
Sunday Times v United Kingdom [1979] 2 EHRR 245
Victoria v Australian Building Construction Employees' and Builders Labourers'
Federation (1982) 152 CLR 25
Warringah Shire v Manly Daily Pty Ltd (Court of Appeal, 27 August 1985, unreported)
Waterhouse v Gilmore (1988) 12 NSWLR 270
William Thomas Shipping Co Ltd, Re [1930] 2 Ch 368
Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496
Witham v Holloway (1995) 185 CLR 525
The following additional cases were cited in argument and submissions:
Ainsworth v Hanrahan (1991) 25 NSWLR 155
Bell v Stewart (1920) 28 CLR 419
Guise v Kouvelis (1947) 74 CLR 102
Hunt v Clarke (1889) 58 LJQB 490
John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81
Jones v Dunkel (1959) 101 CLR 298
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
Mabo v Queensland [No 2] (1992) 175 CLR 1
McIntyre v Perkes (1987) 15 NSWLR 417

[(1997)

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Mason P)

25

Mijnssen, Ex parte; Re Truth & Sportsman Ltd, (1956) 73 WN (NSW) 263

Myerson, Ex parte; Re Packer and Smith's Weekly Publishing Co (1922)
39 WN (NSW) 260
Parker v The Queen (1963) 111 CLR 665
Prothonotary, The v Collins (1985) 2 NSWLR 549
R v Blumenfeld; Ex parte Tupper (1912) 28 TLR 308
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262

B
MOTION ON NOTICE
By motion on notice the claimants moved to have the opponents judged
guilty of contempt of court for the publication of newspaper articles which
were likely to interfere with the administration of justice in connection with
proceedings between the same parties for defamation. The proceedings were
removed under the Supreme Court Act 1970, s 51(1)(b).

T E F Hughes QC and T D F Hughes, for the claimant.

S M Littlemore QC and J C Gibson, for the opponents.
Cur adv vult
25 June 1997

MASON P. I have had the advantage of reading the judgment of Powell JA,
and I agree with it, save in one aspect of its application to the facts. In
particular I agree with his Honour's conclusions that:
1. The first and third opponents were liable in fact and law for the
publications, if contemptuous.
2. The claimant's allegation of intention to interfere with the course of justice
by subjecting the claimant to improper pressure not to proceed in the principal
(defamation) proceedings has not been established to the criminal standard.
3. The principal proceedings were not commenced as a mere stop writ.
(However the dilatory way in which they have been prosecuted is relevant to
other issues in this application, for reasons which I shall develop below.)
4. The claimant has not established his alternative claims that the articles
have, as a matter of practical reality, a tendency to deflect potential witnesses
or jurors from their duties in relation to the principal proceedings.
5. These proceedings should have been commenced by summons, although
that procedural defect is not fatal in the present case.
Where I respectfully differ relates to the issue of whether what was published
had, as a matter of practical reality, a tendency to interfere with the course of
justice in relation to the principal proceedings by subjecting the claimant to
improper pressure to discontinue or to settle the principal proceedings. (I shall
set out my reasons below.)
The facts summarised:
The claimant charges the opponents with contempt of court in relation to
articles published in the New Country newspaper of 20 July 1996 and the Greek
Herald newspaper of 22 July 1996. Each newspaper is written mainly in Greek
and is disseminated widely in New South Wales to members of the Greek
speaking community here. The claimant Archbishop is the head of the
archdiocese of the Greek Orthodox Church in Australia. The opponent

26

SUPREME COURT

[(1997)

Mr Skalkos is charged as the author of the articles and the managing director of
the opponent Foreign Language Publications Pty Ltd, the proprietor of the two
newspapers.
The alleged contempts relate to defamation proceedings commenced in
the Supreme Court in August 1992 relating to four different newspaper articles
published in the said newspapers between March 1991 and May 1992. In these
proceedings the claimant is suing the two opponents and a third person for
defamation. The pleadings in those proceedings assert that the four articles
contain serious defamatory imputations about the claimant, his personal
conduct and his fitness for office. Details of the imputations pleaded may be
found in the judgment of Powell JA.
In 1993 all of the imputations then pleaded were ordered to be struck out,
due to pleading deficiencies. Subsequently an amended statement of claim was
filed, followed by a defence and reply. The defendants dispute the (amended)
imputations pleaded, and raise defences of qualified privilege, comment
relating to matters of public interest and contextual justification. The contextual
imputations raised in justification by the defendants attribute to the plaintiff
various kinds of additional misconduct, including sins of the flesh,
maladministration and financial extortion. The plaintiff's reply joins issue with
the defences and alleges malice.
As matters stood on the pleadings in the defamation proceedings at the end
of 1995, the claimant was seeking vindication for alleged defamations that had
a common theme, namely that the claimant had been guilty in various ways of
grave dereliction of his ecclesiastical duties in the administration of his
archdiocese. The defendants' response took anything but a backward step.
Judged by the pleadings, this was to be litigation in which no prisoners would
be taken. This said, one has the distinct impression that the plaintiff was
taking his time to bring the action on for trial. Even allowing for the complexity
of defamation proceedings in New South Wales, this action has been around for
a long time and is still far from being ready for trial.
This individual struggle was occurring in a context where there was a level
of public discussion within the ranks of the Greek Orthodox in Australia about
a number of issues of church politics. In so describing the disputes, I am not
seeking to belittle them but to emphasise that they related to issues of
governance and authority within the Church community. The claimant attracted
significant levels of strong support and strong opposition. Some, like those in
the opponents' camp, regarded the Archbishop as dictatorial. There is nothing
unusual in such matters, although the language used in public discussion (not
just by the opponents) appears strident in translation to one who is largely a
stranger to this particular Australian sub-culture.
In July 1995, Simpson J had given leave to the claimant to amend yet again
his statement of claim in the principal proceedings. The claimant was ordered
to pay the defendants' costs of and incidental to the application. These events
received some coverage in the Greek-speaking press, including the opponents'
paper Greek Herald. In June 1996, the costs were assessed by a costs assessor
in the sum of $13,400. The defendants demanded payment, and the claimant's
solicitors tendered a cheque. The payee was the defendants' solicitor and the
cheque was drawn upon the account of the Greek Orthodox Archdiocese of
Australian Property Trust. Since the solicitors did not have a trust account, the
claimant's solicitors were asked to provide a cheque in favour of Foreign

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Mason P)

27

Language Publications. Such a cheque was provided, again drawn on an

account of the Church Property Trust.
The two allegedly contemptuous articles were published in July 1996 and
translations of them are set out in the judgment of Powell JA. The main theme
of each is to draw attention to the costs order made by Simpson J and to
criticise in vivid terms the use of Church trust moneys for discharging what the
opponents were contending to be a purely personal obligation of the claimant.
The second article links this with other issues of what the opponents regarded
as high-handed ecclesiastical administration. With self-congratulatory flourish
the opponents announced that the money would be donated to a worthy cause
which, one suspects, is dear to their group of anti-Archbishop supporters.
But there is a distinct sub-theme. The Archbishop is accused of resenting the
readiness of those, like the opponents, who were willing to stand up against
him and call him to account. In defiant tones, the opponents asserted their right
to continue doing so and their confidence that, if and when the pending or any
future defamation proceedings were brought on for hearing, they (the
opponents) would be vindicated. There is a clear invitation to see you in
court.
This summary does not adequately convey the hectoring and personally
offensive tone of the articles, which need to be read as a whole and in context. I
shall refer to certain key passages at the end of this judgment.
Contempt by improper pressure on a party: general principles:
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 minimis principle. There is no
contempt if the possibility of influence is remote.

28

SUPREME COURT

[(1997)

See also (at 303) per Lord Morris and Commercial Bank of Australia Ltd v
Preston [1981] 2 NSWLR 554 at 562.
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 the 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; 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. There is a useful discussion by the Australian Law
Reform Commission in a Research Paper prepared by Ann Riseley entitled
Improper Pressure on Parties to Court Proceedings. It was published in 1986
as part of the Commission's reference on Contempt of Courts (ALRC RP 3,
1986). 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; 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

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Mason P)

29

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 right to
bring an action in relation to a civil matter is really a bundle of rights that
includes the freedom to originate, not to originate, to negotiate rather than
litigate the settlement of the dispute, and/or to withdraw an action or a defence
after setting it in motion. The latter options may be exercised up until the time
the court delivers judgment: Improper Pressure on Parties to Court
Proceedings (at 31).
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. For example, in Smith v Lakeman (at 306), a plaintiff
to a pending suit sent the following letter to the defendant:
Sir, I learn from good authority that you have a suit pending in
Chancery: and should it go up for judgment, you will at once be indicted
for swindling, perjury, and forgery, and thus bring disgrace on your family
and ruin for ever the prospects of your gallant son.
Stuart V-C held the letter to be a contempt, finding (at 306) that it:
was a threat for the purpose of intimidating [the defendant in the
principal proceedings] as a suitor, and therefore, whether it had had that
effect or not, it was unquestionably a contempt of court. (Emphasis
added.)
See also Ex parte Australian Iron & Steel Ltd (1959) SR (NSW) 119; 76 WN
(NSW) 52; Fry v Bray (at 376); Attorney-General v English [1983] 1 AC 116
at 141; Hislop (at 526); Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR
496 at 505.
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

30

SUPREME COURT

[(1997)

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 (discussed below). 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 50 especially 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.

D
Balancing competing public interests:
The foregoing discussion is but the prelude to the central legal and factual
issue in the present case. This concerns the balancing of the free speech and fair
trial principles in the context of an alleged contempt by imposing improper
pressure on a litigant in defamation proceedings.
Two extreme positions may be stated, to be dismissed. It cannot be the case
that a defendant to pending defamation proceedings is automatically guilty of
contempt for publishing fresh defamatory matter concerning the plaintiff, even
if it re-visits material the subject of the original alleged defamation. Were it
otherwise, a public figure could effectively issue a stop writ, gagging further
media discussion by a selected defendant, even justified discussion about fresh
wrongdoings. Alternatively, that public figure could initiate genuine proceedings but prosecute them with supine dilatoriness. Nor can it be the case that a
litigant can escape the law of contempt despite publishing a grossly offensive
attack on the other party containing an explicit or implicit threat (even if
unintended) of more to come if the victim does not cease assertion of his or
her legal rights in the pending defamation proceedings. Were it otherwise, the
law of contempt would be countenancing an unacceptable form of deterrence of
those who resort to law.
Neither party contended for such extreme positions. Each accepted that the
Bread Manufacturers' principle may apply to this, as to other forms of
contempt by publication. It was also, I understand, common ground that
discussion in the Greek-speaking media about the conduct of the claimant
Archbishop was capable of attracting the Bread Manufacturers' principle. In
the oft-cited passage in Bread Manufacturers (at 249-250; 99-100), Jordan CJ
said:
It is of extreme public interest that no conduct should be permitted

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Mason P)

31

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:
The last sentence must not be misunderstood, nor the earlier reference to a not
intended by-product of a particular discussion. Sir Frederick Jordan was not
saying that absence of intent to prejudice will preclude a finding of contempt:
see further par 3 of the general principles summarised above.
As Hinch demonstrates, the application of the Bread Manufacturers'
principle involves a balancing of competing public interests, being the interests
of a fair trial and the interest of free discussion concerning matters of public
concern. Each of those public interests invites closer investigation in the
particular context of the present type of alleged contempt. Although the
principal litigation allegedly interfered with in Bread Manufacturers were
proceedings for libel and conspiracy, Bread Manufacturers did not involve
contempt in the form of improper pressure on a litigant (see at 246; 98-99), and
the alleged contemnor there was not a party to the particular proceedings said
to be interfered with by the publication (see at 245-246; 98-99). To draw
attention to these distinguishing features does not, of course, preclude resort to
such of the judgment in Bread Manufacturers as yields presently pertinent
guidance.
The present is a case where the alleged improper pressure consists of the
publication of defamatory words about the claimant which the opponents assert
are justified. The publications contain imputations of misconduct generally and
in relation to the pending defamation proceedings commenced by the claimant
in 1992. The matter was published widely to members of the Greek-speaking
public in circumstances when it was obvious that the publication would become
known to the claimant. The claimant is free to institute further defamation
proceedings, even criminal defamation proceedings, if he chooses. This is not

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to deny that he is also free to institute criminal contempt proceedings in a

proper case. (I would reject the opponents' submission that the institution of the
instant proceedings is itself an abuse of process.)
In an adversary system, the law's concern is to protect from improper
interference the litigant's freedom to choose whether or not to initiate, continue
or discontinue legal proceedings. It is irrelevant that the principal proceedings
may be doomed to success or failure. These principles were illustrated recently
in Meissner v The Queen. The case involved the common law indictable
misdemeanour of attempting to pervert the course of justice. There, the actus
reus is the same as for contempt (see at 156, per Dawson J), although there is a
superadded requirement of mens rea in the indictable offence. The High Court
held that, when the means used to influence the guilty plea of an accused
person were improper and resulted in the choice not being a free one, such
conduct had a tendency to pervert the course of justice. Amongst improper
means that the Court identified were the application of force, intimidation and
financial inducement motivated by the private concerns of the payer (see
at 142-143, 158-159). In obiter, it was recognised that even certain types of
persuasion could cross the line between proper and improper means of affecting
a litigant's freedom of choice. Brennan J, Toohey J and McHugh J said
(at 143):
Argument or advice that merely seeks to persuade the accused to
plead guilty is not improper conduct for this purpose, no matter how
strongly the argument or advice is put. Reasoned argument or advice does
not involve the use of improper means and does not have the tendency to
prevent the accused from making a free and voluntary choice concerning
his or her plea to the charge. As long as the argument or advice does not
constitute harassment or other improper pressure and leaves the accused
free to make the choice, no interference with the administration of justice
occurs.
Deane J noted (at 149) that:
a degree of pressure which would be quite legitimate if exerted by an
accused's own lawyer acting solely in the accused's interests may be
completely unacceptable if exerted by a stranger acting for a collateral and
selfish purpose of his or her own.
Dawson J said (at 159):
The persuasion of an accused person to plead guilty may not be an end
which is in itself improper even where that person is not guilty or believes
himself to be so. Where, however, the means by which the persuasion is
attempted extend beyond reasoning with reference to the consequences,
legal or personal, of pleading otherwise and amount to improper pressure,
then the offence of attempting to pervert the course of justice is
committed. The use of improper means hinders or prevents the exercise of
a free choice by the accused in deciding upon his plea. That is a corruption
of the legal process which denies to the court knowledge of the true
circumstances in which the plea is made.
These and other passages in Meissner identify the fair trial interest as the
litigant's realm of independence in decision-making in an adversary system: see
also In re Lonrho Plc [1990] 2 AC 154 at 209. Similarly, in the Sunday Times
case, Lord Diplock identified the particular mischief of this category of
contempt in the following terms (at 308):

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Mason P)

33

Conduct in relation to [a particular] case which tends to inhibit

litigants in general from seeking adjudication by the court as to their legal
rights or obligations, will affect not only the public interest but also and
this more immediately the particular interests of the parties to the
case.
What can be said about the free speech interest in this context, and how the
two interests can be weighed against each other?
The possibility of prejudice to a particular litigant (and incidentally to
litigants generally) may have to be weighed against the public interest in the
discussion of public affairs and the denunciation of public abuses, actual or
supposed in Jordan CJ's words. The latter public interest is not suspended
merely because the principal litigation involves allegedly defamatory discussion
about the plaintiff. Indeed it is difficult to see why it should matter that the
publisher invoking the Bread Manufacturers defence is also the defendant in a
pending defamation action launched by the plaintiff. If the dissemination to the
public of particular information is in the public interest then its source should
be irrelevant, at least where that source is not acting in breach of some private
obligation of contract or confidence. Nor should the manner in which that
plaintiff has conducted himself or herself in the principal litigation necessarily
be outside the range of public affairs and public abuses which the
defendant can denounce. (Of course the defendant denounces at its peril as to a
fresh defamation writ and/or aggravated damages in the principal action.)
This said, the defendant that has both motive and opportunity to exercise its
denunciatory power in such a way as to deter its litigating opponent in the
principal proceedings can hardly complain if its conduct is closely scrutinised.
To comment on proceedings which are pending in Court is playing with
fire: Ex parte McCay and Baume; Re Consolidated Press Ltd (1936) 36 SR
(NSW) 592 at 594; 53 WN (NSW) 212 at 213, per Jordan CJ. The passages
referred to in Meissner confirm that the line between conduct that is legitimate
or illegitimate may depend on content, context and the motive of the alleged
contemnor. The context may disclose a justification which makes certain types
of pressure justifiable in the public interest. For example, there is a public
interest in the informed settlement of litigation consequent upon a lawyer's
disinterested advice. A lawyer's confidential persuasion to settle a case may
involve strong pressure, but not usually improper pressure: see also Sunday
Times case (at 319), per Lord Simon. But pressure in the public domain may
call for close scrutiny because, while on the one hand it is public discussion
that attracts the Bread Manufacturers' principle, on the other hand publicly
voiced pressure gathers strength from the real or anticipated reinforcement of a
reading, hearing or viewing public that is moved by the publication: see also
Willshire-Smith (at 506).
Obviously the defendant that publicly attacks its litigating opponent may go
too far and provide evidence of an actual intention to deter. If this line is
crossed, there will be a contempt (see par 4 above). I agree with Powell JA that
the claimant has not made good its alternative contention that such intent is
established here. The two articles border on the scurrilous, but must be viewed
in the light of the evidence about sturdy debate in the Greek-speaking press
generally, and about the claimant by the opponents in particular. They represent
no change in orientation of a campaign of public criticism of the claimant
Archbishop: cf Bread Manufacturers (at 251; 100). Intention to pervert the

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course of justice by discouraging the claimant from continuing the dilatory

prosecution of his civil proceedings may therefore be put aside.
But absence of intent to deter does not necessarily end the issue: see par 3
above. How far then, can an alleged defamer go in publishing further
defamatory matter without being guilty of contempt of court?
We were referred to the Sunday Times case. However, there are a number of
difficulties in interpreting and applying the Sunday Times case. (In what
follows I have drawn extensively from the Australian Law Reform Commission's Research Paper to which reference has already been made.) After a
detailed investigation, the Sunday Times published an article that was clearly
designed to persuade the Distillers Co (the manufacturer of thalidomide) to
abandon its defence of long drawn-out legal proceedings brought by the parents
of affected infants. A proposed settlement was described as grotesquely out of
proportion to the appalling injuries the thalidomide children suffered. The
sum involved was compared to the after-tax profits of the manufacturer. The
article called upon Distillers to offer more, because the thalidomide children
shame Distillers. In an important passage, the article stated:
But the law is not always the same as justice. There are times when to
insist on the letter of the law is as exposed to criticism as infringement of
another's legal rights . Without in any way surrendering on negligence,
Distillers could and should think again.
The Attorney-General did not bring contempt proceedings relating to this
article. However, he sued for an injunction to restrain a proposed further
publication. The text of the proposed publication does not appear to be set out
in the law reports. In the Court of Appeal, Lord Denning MR described it as
in a different category from the earlier one, in that it marshalled forcibly the
arguments for saying that Distillers did not measure up to their responsibility
while also summarising the arguments which could be made for Distillers. The
injunction was granted at first instance, overturned by the Court of Appeal, and
restored by the House of Lords.
The first difficulty with the decision is identifying the ratio in the House of
Lords. Although the Lords were unanimous in their reversal of the Court of
Appeal, only two (Lord Diplock and Lord Simon) characterised the potential
contempt in the projected article as resting on its attempt to put improper
pressure on Distillers as distinct from the public pre-judgment of critical issues
of negligence in the legal cause between Distillers and the claimants. Lord Reid
(at 295) and Lord Cross (at 325, 326) rejected the Attorney-General's
submission that any public comment likely to influence a litigant was a
contempt of court.
Secondly, and arising out of the first point, all speeches emphasise that the
publisher's intention was to put pressure on Distillers. That fact (which was
admitted by the publishers) is absent from the present case, on the findings I
have made.
A third difficulty lies with the tests suggested by their Lordships for
distinguishing when criticism of a litigant does not constitute contempt. The
tests are not consonant and, in any event, are not without their difficulties.
Indeed they all appear to be at odds with the balancing approach recognised in
Australian law as represented by the Bread Manufacturers' case.
Lord Reid's test: Citing Re William Thomas Shipping Co Ltd, Lord Reid said
the dividing line should be drawn between comment containing injurious

42 NSWLR 22]

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35

misrepresentation, which was contempt, and fair and temperate criticism,

which was not: see at 297. Lord Cross was of a similar view: see at 326. So too
was Lord Morris, although his reasoning (at 305-307) is less explicit: see the
analysis of Hunt J in Commercial Bank of Australia Ltd v Preston (at 560-561).
On this basis, those three Law Lords did not regard the existing article as a
contempt, even though its obvious purpose was to put pressure on Distillers to
lift its settlement offer. Presumably so too was its clear tendency.
It is possible to extrapolate a common principle from the three speeches,
albeit obiter since their Lordships' assent to the injunction was based upon the
pre-judgment principle. In Commercial Bank of Australia Ltd v Preston, Hunt J
closely analysed the Sunday Times case. He held (at 561) that it is possible to
extrapolate a majority position, represented by the speeches of Lord Reid, Lord
Morris and Lord Cross, to the effect that:
it is a contempt of court to make a public statement:
(i) which is calculated by abuse or otherwise to influence a party to
pending proceedings in the conduct of those proceedings, but
only if that public statement mis-states the facts and/or consists
of intemperate opinion or discussion; or
(ii) which exposes such a party to the prejudice of pre-judgment of
the issues or of the merits of those proceedings, however
accurately or temperately that public statement may be
expressed.
I would respectfully agree that this summarises the majority position adopted
(obiter) in the Sunday Times case.
Lord Diplock's test: Lord Diplock considered both the published article and
the proposed article to be contempts. For him, it was sufficient that each article
held Distillers up to public obloquy for exercising rights at law (at 309-313).
In Lord Diplock's opinion, a distinction was to be drawn between private
persuasion of a party not to insist on relying in pending litigation on claims or
defences to which the party is entitled under the existing law, and public abuse
of the party for doing so: see at 313.
Lord Simon's test: Lord Simon agreed with Lord Diplock, although he
emphasised that private pressure would be equally contemptuous unless such
pressure can be justified (at 318). Dealing with private pressure, he gave as an
example of justified pressure where there is a common interest that fair,
reasonable and moderate personal representations would be appropriate
(at 319). This approach has been described as a legal category of concealed
circuitous reference (Pressure on Litigants (1973) 47 ALJ 349 at 351), but
it does at least try to grapple with the necessary issue of separating proper and
improper pressure. Lord Simon cites Bread Manufacturers in his speech, but
appears to distinguish it because the pressure in the Sunday Times case was
intentional: see at 321.
Some difficulties with the three tests: Although Lord Cross seemed to regard
the tests proposed by Lord Reid and Lord Diplock as interchangeable (see at
326), they clearly are not. This is made plain by their differing treatment of the
hypothetical question whether it would have been contempt to have sought
publicly to dissuade Shylock from proceeding with his action by drawing
attention to the risk that, if he went to court, decent people would cease to trade
with him. Lord Reid would have said no, at least so long as the comment
was itself fair: see at 295-296. By contrast, Lord Diplock would have

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regarded the public obloquy of Shylock for seeking to enforce his legal
rights in a court of competent jurisdiction as sufficient to itself to ground
contempt (see at 313): see also Lord Simon (at 315).
Lord Diplock (at 313) also drew a distinction between public and private acts
of pressure. The latter was regarded as a contempt, whether or not the abuse
was likely to have any effect on the particular litigation by the party publicly
abused. This was because the public mischief lay in the inhibiting effect which
it might have on all potential suitors if it were to become the common belief
that to have recourse to law would make them a legitimate target for public
abuse. (It has been pointed out that this distinction is unsatisfactory because
private pressure by otherwise lawful intimidation might be just as likely to
deter future suitors: Improper Pressure on Parties to Court Proceedings
(at 31). The distinction was not embraced by Lord Simon (at 318-319) or Lord
Cross (at 322).)
What I have termed Lord Reid's test is, as Hunt J demonstrates, a two-staged
proposition with regard to unintended pressure. The publication: (1) must have
the tendency to influence; and (2) it must mis-state the facts and/or consist of
intemperate opinion or discussion. It is critical that attention to step (2) does not
direct attention away from step (1), which is cumulative and essential,
according to the authorities which I refer to in par 2 of my general principles.
Nevertheless, one problem with Lord Reid's test is that reference to misstatement of the facts means that a publication may be contemptuous simply by
reference to its lack of complete accuracy, as a function of its truth value. Yet a
party is just as likely to feel the deterrent effects of publicity regardless of
whether it is based on the truth or falsity of the issues in question. In my view,
a single slip in accuracy should not in itself turn the balance. In any event,
issues of factual accuracy seem more appropriately addressed in the context of
justification.
In Nationwide News Pty Ltd v Willis (1992) 177 CLR 1 at 32, 67, 90
and 102, there are strong statements by five justices to the effect that special
defences such as fair comment and justification are available in contempt, as in
defamation: cf also the discussion by Lord Reid about Shylock in the Sunday
Times case. On general principle, the prosecutor bears the onus of displacing
such defences if there is evidence that fairly raises them in the proceedings: cf
Waterhouse v Gilmore (1988) 12 NSWLR 270 at 279-280.
Bearing in mind the criminal nature of this branch of the law of contempt,
and the importance of free speech, there is need for caution in applying the
much criticised Sunday Times case. It must not be overlooked that it was overruled by the European Court of Human Rights: Sunday Times v United
Kingdom [1979] 2 EHRR 245. Although this occurred in application of a treaty
obligation to which Australia is not a party, nevertheless that treaty guaranteed
freedom of expression unless justified by pressing social need. It is difficult
to think that the common law is any different in substance. The Sunday Times
case led to the Report of the (Phillimore) Committee on Contempt of Court
which in turn led to the Contempt of Court Act 1981 (UK) which altered the
common law as it had been declared in the Sunday Times case. It is far from
clear whether the Sunday Times case is still recognised as authoritative in
England: see In re Lonrho Plc (at 208). Its correctness has certainly been
reserved in this country: see Victoria v Australian Building Construction
Employees' and Builders Labourers' Federation (BLF case) (1982) 152 CLR

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HARKIANAKIS v SKALKOS (Mason P)

37

25 at 96-97, per Mason J; Civil Aviation Authority v Australian Broadcasting

Corporation (1995) 39 NSWLR 540 at 554-556, per Kirby P, and New Zealand
(see Greenpeace New Zealand Inc v Minister of Fisheries [1995] 2 NZLR 463).
I think that the safer course is to proceed more directly from the Bread
Manufacturers principles as expounded in Hinch, even though neither of those
cases involved the type of contempt here alleged. But before departing finally
from the Sunday Times case I would respectfully endorse the following from
Lord Reid's speech (at 294):
The law on this subject is and must be founded entirely on public policy.
It is not there to protect the private rights of parties to a litigation or
prosecution. It is there to prevent interference with the administration of
justice and it should, in my judgment, be limited to what is reasonably
necessary for that purpose. Public policy generally requires a balancing of
interests which may conflict. Freedom of speech should not be limited to
any greater extent than is necessary but it cannot be allowed where there
would be real prejudice to the administration of justice.
This passage was quoted with approval by Brennan J in the BLF case (at 161):
see also Hinch (at 41-42), per Wilson J; (at 57), per Deane J.
The claimant also placed considerable reliance upon Attorney-General v
Hislop. In Attorney-General v Hislop, the editor of the magazine Private Eye,
Mr Hislop, and Pressdram Ltd, its proprietor and publisher were defendants to a
libel action brought by Mrs Sutcliffe (the wife of the Yorkshire Ripper) in
respect of two articles published in 1981 and 1983. One article alleged that
Mrs Sutcliffe had knowingly provided a false alibi to her husband, knowing
that he was killing people. The other alleged that she had been defrauding the
Department of Social Security. In February 1989 (when the libel action was
about three months away from trial) two further articles were published. The
Attorney-General charged that the latter articles were published with the
intention of seeking to dissuade the plaintiff from pursuing her proceedings
against the defendants for fear of what might be raised in cross-examination of
her or evidence against her, notwithstanding that it was or ought to have been
known that the allegations were not relevant to the issues raised in the
proceedings and were likely to be inadmissible therein. (There were other
allegations about the prejudicing of potential jurors which are not of present
relevance.)
The application was dismissed by Popplewell J, despite his finding that the
articles were intended to deter Mrs Sutcliffe from pursuing her claims.
However, the English Court of Appeal allowed the Attorney-General's appeal.
A close reading of the judgments indicates that the decision turns upon the
finding of intent to deter, although there are some wider dicta. The Court of
Appeal accepted Popplewell J's finding that intent to deter was established: see
at 525-256, per Parker LJ; at 530, per Nicholls LJ; at 535, per McCowan LJ.
However, the judgments then proceeded to consider whether this alone was
sufficient to establish contempt: (a) at common law; and (b) under the
Contempt of Court Act 1981 (UK). As to the common law, the court regarded
the finding of intent to deter sufficient to sustain a conviction, unless (in
Parker LJ's words (at 528)) it can be shown that these articles contained no
more than fair temperate and relevant criticism (emphasis in original). I infer
that this proviso was his Lordship's way of summarising his understanding of
the Sunday Times case which he had referred to earlier in his judgment. He

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described the articles as plain abuse intended to deter (at 527) by threats of
improper action. It is far from clear that the other members of the Court of
Appeal would even concede the proviso reserved by Parker LJ. Nicholls LJ
(at 531) and McCowan LJ (at 535) appear to regard intent to deter as
precluding resort to any justification.
For these reasons, the English cases should be approached with caution.
I see no reason why the following passage from Bread Manufacturers
(at 249; 100) should not be the starting point in cases such as the present. It is
found within the long passage already quoted:
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.
The onus of displacing the Bread Manufacturers defence remains on the
prosecution: see Hinch (at 50-51), per Deane J.
What is not discussed in Bread Manufacturers is the permissible manner in
which discussion or denunciation may cause some likelihood of prejudice as
an incidental but not intended by-product. Hinch barely touches this issue
either, although Deane J had regard to the vehemence of the publications
with their unrestrained language [and] evocative imagery (at 56, 58). I have
no difficulty in recognising that the tone or fairness of a publication is relevant
to its tendency to interfere with the course of justice: see Hinch (at 30), per
Mason CJ. I am not suggesting that swingeing abuse of a litigant can never be
contempt, nor that the inaccuracy of the facts stated or the unfairness of any
comment is irrelevant. An unbalanced and scurrilous attack lacking in any
justification may have the requisite tendency. However, I cannot accept that
this should be controlling in the area of criminal contempt. If it were, then an
isolated slip into intemperate opinion or discussion, or a single misstatement of fact would remove the justification which, in a proper case, Bread
Manufacturers provides in the interest of the free dissemination of important
information. Ultimately, in the words of Toohey J in Hinch (at 76), which I
respectfully adopt: The Court is not the arbiter of good taste or literary merit
but it must consider the entire content of the broadcasts and ask itself whether
their prejudicial effect outweighs the public interest they seek to serve.
In Warringah Shire Council v Manly Daily Pty Ltd (Court of Appeal,
27 August 1985, unreported) contempt proceedings were brought against the
publisher of the Manly Daily and Mrs Julia Sutton, one of the members of the
council. The council had for some time been considering the re-organisation of
the powers and authorities of its administrative officers. Resolutions were
passed in 1984 which were claimed to involve a diminution of the powers and
authority of the shire engineer. Mrs Sutton opposed the restructuring, and
commenced proceedings in the Equity Division seeking a declaration that the
resolutions were ultra vires. The council applied by notice of motion for a
declaration that Mrs Sutton did not have the necessary standing to bring the
proceedings. All these matters were of considerable public interest within the
shire, and produced a large amount of public comment, some of it in quite
strong language. In debates in the council attacks were made on Mrs Sutton for
her actions and, among other things, it was said that she was burdening
ratepayers with huge legal expenses.

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Mason P)

39

Some of the statements made by councillors at meetings of the council in

relation to Mrs Sutton illustrate the type of language which was used by
councillors about one another in the course of discussing the council's business.
It was said by some councillors that Mrs Sutton was only doing this that is,
taking the proceedings which had been previously instituted because of her
friendship with the shire engineer; that she was always criticising senior
officers; that she was trying to destroy the council; that her stand was only a
retaliatory action over the shire engineer's suspension; that she was trying to
bring down the council and she was only doing that as a cheap publicity stunt;
and that she was pretending to champion the cause of the ratepayers but was
only just following any group at all and she was only a wolf in sheep's
clothing.
In this context the Manly Daily published an article which became the
subject of the contempt charge. The publication was in these terms:
Delaying tactics in court battle.
Councillor Julie Sutton yesterday accused Warringah Shire Council of
using diversionary tactics to prevent a quick resolution of the Supreme
Court case in which she is involved against the Council.
Cr Sutton has joined with the Local Government Engineers' Association
of NSW in a legal challenge against the Council over its alleged
downgrading of the position of Shire Engineer.
Cr Sutton said yesterday her solicitor advised her that the matter would
be listed later this week for the setting of a hearing date on the Council's
submission that she does not have the legal standing to bring proceedings
against it:
I am amazed and disturbed that the Council is seeking to delay
proceedings when it is clear that if I do not have the legal standing to
challenge the Council, no one does except the Attorney-General, she said:
If the Council had the courage of its convictions it would be anxious to
have the matter brought before the court at the earliest opportunity.
Instead, it is indulging in the charade of challenging my standing, and
using the ratepayers' money to do so.
The Council's insistence upon this point indicated that it is more
concerned with personal issues than with the speedy resolution of the
matter.
In the interests of clarification, I imagined that the Council would
welcome the opportunity to test its decisions instead of wasting public
funds on diversionary tactics.
The council charged that the article was a contempt. Citing the Sunday Times
case, it was submitted that the statement held up to public obloquy and derision
the proceedings before the court and tended to inhibit the council from pursuing
its defence to the proceedings. It was also said that the article unfairly and
intemperately discussed the pending proceedings.
The prosecution was dismissed by a Court of Appeal comprising Hope JA,
Glass JA and Samuels JA. The leading judgment was given by Hope JA. His
Honour observed that (at 4):
Contempt is a difficult area of the law, for it requires a balance to be
maintained between the public interest in the due administration of the law
and other matters of public interest, including most importantly the public

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[(1997)

interest in free speech and also, where relevant, the public interest in being
informed about the activities of public authorities.
He also noted (at 5) that the type of contempt involved has had a long
history, but despite that long history there have not been many reported
decisions upon it. It still does not have a complete clarity. Its gradual evolution
may reflect changes in some public attitudes or perhaps it is a result of a lack of
opportunity to test the principles in a sufficiently large number of diverse
circumstances. Various passages were cited from the Sunday Times case.
Hope JA noted that it had been submitted that those statements do not represent
the law of New South Wales. However, he assumed in favour of the claimant
that they did properly enunciate the law.
In addressing the particular charge, his Honour drew attention to the context,
which was the public controversy over which the dispute arose, with strong
language being used quite often, including its use by councillors in respect of
Mrs Sutton. The criminal nature of the proceedings was emphasised (at 9-10):
If a statement is reasonably capable of more than one meaning and one of
those meanings does not involve contempt, a charge based upon that statement
is, in my opinion, not made out. Hope JA concluded (at 10):
Having regard to the evidence and the submissions which have been
made in respect of it, I am satisfied that the words do not support the
allegation that either of the publications held the Council up to public
obloquy and derision, thereby tending to inhibit the Council from pursuing
its defence of proceedings in the manner in which it had been advised and
was determined to do.
I do not consider that the publications involved any serious, real or
substantial risk of interference with the due administration of justice. The
statements were critical of the Council but did not pass beyond the line
marking the boundary of contempt. If other words than the ones I have
used, such as intemperate, execration, public ridicule and the like,
provide the proper test, I am satisfied that the language used in the
publication does not come within them. In my opinion, the matters
charged in par 1 of the particulars of the contempt have not been made
out.
Glass JA and Samuels JA agreed. Glass JA (at 11) extracted from the speeches
in the Sunday Times case the ratio that:
a contempt of the kind here charged is not established except upon
proof of two elements. The first is that the statement is so expressed as to
attract the epithet of obloquy, execration or abuse directed at a litigant.
The second element is that the tendency of the statement is to discourage
or deter him from vindicating, exercising or prosecuting his legal rights.
This case bears many similarities to the present one. The context was one in
which there was a prior history of public debate about substantive issues.
Litigation ensued. The conduct of one of the parties in that litigation was said
to reflect the original cause for criticism. Each party was effectively
challenging the other to see you in court, whilst not eschewing comment in
the media as a back-up. Strong language was used. One distinguishing feature,
however, was the intemperate public attack on Mrs Sutton's motives as a
litigant in the earlier council meetings, which preceded her response in kind
(although to a lesser degree).
Nevertheless, the vigorous and, one would have thought derisive tone of

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HARKIANAKIS v SKALKOS (Mason P)

41

Mrs Sutton's reported challenge to the council were not sufficient to make out a
case of contempt. It would therefore appear that the interpretation of the Sunday
Times case that their Honours were applying was one in which something more
than mere intemperate language was involved, despite its hectoring see you in
court tones. It also emerges from the reference to context that some notion
of proportionality of response is involved, being proportionality with respect to
the tone of the language used earlier in the public dispute and proportionality
with respect to the facts of the issue that triggered the allegedly contemptuous
response: see also Fry v Bray (at 371); Meissner.
I cannot accept that the publication (let alone repetition) of actionable
defamatory statements is sufficient to establish contempt. In the BLF case
Gibbs CJ said (at 57):
There are statements in the authorities that utterances which would
prejudice mankind against a litigant will amount to a contempt. Of course,
where the pending trial is by jury, the effect of the prejudice on the legal
proceedings will be apparent. Where the trial is by judge alone it is not
easy to see why the effect of the publication on the public at large should
be material. If the publication is defamatory, the law provides a remedy; if
it is not, the fact that the public may form an adverse opinion of one of the
parties to litigation does not in my opinion mean that there has been an
interference with the due administration of justice, when the public as such
plays no part in that administration. The position may be different if the
publication exposes the litigant to public and prejudicial discussion of the
merits of the facts of his case while it is still pending see per Lord
Diplock in Attorney-General v Times Newspapers Ltd [1974] AC at 310.
Transposing these remarks to the present context, where the case fails in
relation to poisoning the minds of witnesses and jurors, then the court should
hesitate before a summary finding of contempt in lieu of a verdict in civil or
criminal defamation proceedings (where trial is by jury and where issues of
impact, context and justification will be litigated). The mere fact that a
publication leads the public to form an adverse opinion about one of the parties
does not establish an interference with the administration of justice. While
strong and improper pressure may stop a litigant in his or her tracks, and a
proven tendency to do so will be contempt, the law should remember that
litigants, like jurors and witnesses, have capacities to resist public contumely.
Unlike jurors and witnesses, litigants may also resort to alternative remedies
where they choose not to endure it (including criminal defamation). Even
litigants may, in a proper case, take the longer view that public interest is
notoriously fickle, tending to wane rapidly if the appetite for sensational news
is not continually satisfied with new and dramatic developments. Familiarity
breads apathy, and the media will soon find other news to take the spotlight:
BLF case (at 134), per Wilson J.
This can be illustrated by an example discussed in argument in the present
case. Assume the Prime Minister is attacked for some alleged misconduct in the
media. Various publishers are sued for defamation. Assume that further conduct
comes in for public attack. It may involve some completely fresh event, or it
may relate to the way in which the litigation is being conducted by the Prime
Minister. I have difficulty accepting that a publisher which mistakes the facts in
any respect, or which uses intemperate language to any degree is on that
account alone guilty of contempt of court. The nature and language of the

42

SUPREME COURT

[(1997)

attack and its immediacy to the pending defamation proceedings may amount to
contempt depending on the facts, but it would be wrong to say that it must do
so. If the Sunday Times case suggests otherwise, then I am respectfully unable
to follow it.
Nevertheless, 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 (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.
In summary, when intent to deter is not shown, the court must be satisfied to
the criminal standard that the publication has, as a matter of practical reality,
the impugned tendency to deter the litigant. The onus of displacing the Bread
Manufacturers defence remains on the prosecution. So too does that of
displacing any justification defence fairly open on the facts. The mere presence
of an inaccurately stated fact or florid language will not suffice to establish
contempt. The whole context needs to be examined before what is said and the
manner it is expressed can be identified as having crossed the line between the
offensive and the contemptuous. But that line is crossed when it is proved that
the publication has the tendency to deter and where a party is vilified without
justification because he or she is a litigant or because of the litigation or the
allegations made in it.
Application to the facts:
In the present case, much of the sting of the two articles lies in their admitted
denunciation of the claimant in his apparent resort to church trust moneys to
discharge a personal obligation to pay legal costs in circumstances where the
link between that obligation and the claimant's official duties is itself
contestable. I emphasise that I am not deciding the facts relevant to such issue.
I say no more than that it is a legitimate subject of public comment and that the
claimant has not sought in these proceedings to make a case based on untruth
or lack of justification. At the end of the day, the allegedly intemperate level
of discussion must be weighed against the importance of the topic discussed
and of any need to do so in advance of the conclusion of the principal
proceedings. The dilatory prosecution of defamation proceedings involving
allegations of unfitness for office of a leading Church figure may provide
justification for public criticism. So too may resort to trust moneys to discharge
a costs order in defamation proceedings if, and I emphasise if, that is improper
conduct for an archbishop whose continued reputation may be vital to his
effective episcopal ministry. Also relevant is the context of vigorously
offensive discussion in the relevant branch of the Greek speaking media. In the
upshot I am not able to be satisfied to the criminal standard that the
publications are contemptuous in relation to their dealing with these matters per
se.
For these reasons I would acquit the opponents in relation to the first article,
and for much of what is in the second article, offensive and insulting though
each article is.

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Mason P)

43

However, there are passages in the second article which I have concluded
take it over the line which I have attempted to delineate. They are:
it is a hobby of [the claimant] to press charges either in order to claim
properties of the Communities that the compatriots have made with their
sweat, or to gag the press that criticises him.
The civil Courts are the usual place where the Archbishop takes refuge
in order to involve people in legal grinding stones and to exhaust them or
ruin them.
he should be very afraid himself for his deeds and days which will
be revealed when we eventually come to a hearing. Each rogue goes to
his dock.
It has been revealed that the money that is supposed to be used for the
relief of the needy, for charitable deeds and any other Christian activity,
are squandered for cases of hate. And this is the money that the faithful
give thinking that they will save their souls.
In my view, these passages have a tendency to deter the claimant in his
prosecution of the main proceedings and to deter a person in the situation of the
claimant from continuing to prosecute similar proceedings; and they do so by
public vilification of the claimant because he is a litigant in the principal
proceedings. The particular vilification contained in the passages just quoted
has not been sought to be justified. I therefore find the charge proven in relation
to the second article. The proceedings will need to be re-listed to hear evidence
and submissions relevant to the consequent disposal of the application. I
propose the following orders:
(1) dismiss the application in relation to the article published in the New
Country newspaper of 20 July 1996;
(2) declare that the first and third opponents are guilty of contempt in
relation to the article published in the Greek Herald newspaper of 22 July
1996;
(3) stand over the balance of the proceedings to a date to be fixed by the
registrar in consultation with the parties.
POWELL JA. In pursuance of the amended notice of motion, filed by leave
granted at the commencement of the hearing of this application, the claimant
(to whom I shall refer as the Archbishop) has moved to have the first
opponent (to whom I shall refer as Mr Skalkos) and the third opponent
Foreign Language Publications Pty Ltd judged guilty of contempt of court for
having published, or caused to be published, an article in the New Country
newspaper of date 20 July 1996, and in the Greek Herald newspaper of date
22 July 1996, articles, each of which, so it was alleged, was likely, or
calculated, or had a tendency, to interfere with the administration of justice in
connection with proceedings No 14068 of 1992 in the Common Law Division
of the Court. In those proceedings the Archbishop sought to recover from
Mr Skalkos, the second opponent (to whom I shall refer as Mr Mystakidis)
who, at all material times, was the publisher of the New Country and Greek
Herald newspapers, and Foreign Language Publications, which was, at all
material times, the proprietor of each of those newspapers, damages for what
were alleged to have been defamatory statements contained in articles
published in the Greek Herald in March and May 1991 and in May 1992, and
in an article published in the New Country newspaper in February 1992.

44

SUPREME COURT

[(1997)

The principal questions which arise for determination on the motion are as
follows:
(1) whether it has been established that Mr Skalkos:
(a) either as the author of it, published, or as the managing director of
Foreign Language Publications, caused to be published, the first
article to which I have referred; and
(b) as the managing director of Foreign Language Publications, caused to
be published the second article to which I have referred;
(2) whether it has been established that Foreign Language Publications
published each of the two articles to which I have referred;
(3) whether it has been established that either of the articles, and, if so,
which, constituted a contempt of court in the sense that the publication of them,
or of it, as the ease may be, had a tendency to interfere with the course of
justice in relation to the defamation proceedings:
(a) as being calculated to subject the Archbishop to improper pressure to
discontinue the defamation proceedings;
(b) as being calculated to deter potential witnesses from testifying in the
defamation proceedings on behalf of the Archbishop;
(c) as being calculated to engender prejudice against the Archbishop in
the minds of those who might be summonsed to act as jurors on the
trial of the defamation proceedings;
(d) as constituting a pre-judgment of matters in issue in, and the merits
of, the defamation proceedings.
In addition to those questions, the following questions also fall for
determination:
(4) whether, in determining whether either of the two articles had a tendency
to interfere with the course of justice, the Court might have regard to what the
opponents assert to be the fact that the defamation proceedings were no more
than a stop writ, designed to protect the Archbishop from adverse criticism
and publicity at the hands of the opponents;
(5) whether, in determining whether either of the articles had a tendency to
interfere with the course of justice, it is open to the Court to have regard to
other articles which had appeared in both English language, and Greek
language, newspapers circulating in Australia prior to the publication of the
articles now complained of, which articles, so the opponents assert, were no
less critical of the Archbishop than those the subject of this application;
(6) whether, in determining whether either of the articles had a tendency to
interfere with the course of justice, it is open to the Court to have regard to
what, so the opponents assert, was the accepted level of strong language
adopted in the Greek language media when matters of public interest within the
Greek community were discussed.
Before one can turn to consider those questions, it is necessary to record
some of what the material which is before the Court discloses as to the
Archbishop, Mr Skalkos and Foreign Language Publications, as well as some
information as to the articles the subject of the defamation proceedings and the
conduct of the defamation proceedings.
The Archbishop, as Archbishop of the Greek Orthodox Archdiocese of
Australia, is the Primate of the Greek Orthodox Church in Australia, a position
which he appears to have held for some twenty years or so.
Although it is not necessary to enter in any great detail upon the matter, such

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

45

material as is before the Court would tend to indicate that, at least of

comparatively recent times, significant differences appear to have arisen within
what might, in broad general terms, be described as the Greek Orthodox
community in Australia. Thus, it would appear, that there is what might be
called a break-away movement within the community involving at least one
independent Greek church based in South Australia and under the control of
a former Archdiocesan Bishop. Further, there appear to be significant factional
fights within the Greek Orthodox community over the control of property, and,
in particular, as to whether the control of property should be vested in the
Church hierarchy or should remain vested in the local communities which have
owned their churches and conducted their associated institutions for many years
past. As best as one can judge it from such material as is before the Court,
these disputes have aroused high emotions within the Greek Orthodox
community.
Foreign Language Publications appears to be a company which was
incorporated in November 1969, originally under the name and style of Offset
Productions Pty Ltd, which name was apparently changed in September 1976.
Whatever may originally have been the principal activity of Foreign Language
Publications, its principal activity appears now clearly to be that of a newspaper
printer and publisher. The newspapers and other publications published by
Foreign Language Publications are not limited to publications in the Greek
language, but extend to publications in other languages. Publications by
Foreign Language Publications in the Greek language appear to be the Greek
Herald, a daily newspaper, the New Country, a week-end newspaper and
Ellinis, a weekly magazine; while publications in other languages appear to be
the Spanish Herald, the Novosti (Serbian), Albairak (Arabic) and Il Mondo. The
average nett paid sales per regular issues of the Greek Herald for the period
1 January 1996 to 30 June 1996 were said to be 22,794, while the average nett
paid sales of the New Country for the same period were said to be 25,883.
The issued and paid up capital of Foreign Language Publications is only $6
divided into six shares of $1 each, those shares being held by a Mr P J Comino
(who appears to be a nominee), who holds one share, the remaining shares
being held by Sincom Pty Ltd, which company appears to be a subsidiary, or
sub-subsidiary, of a company known as Brinda Pty Ltd, which, according to the
records of the Australian Securities Commission, is said to be the ultimate
holding company of Foreign Language Publications.
Whatever may earlier have been the position, the directors of Foreign
Language Publications since at least February 1990 have been Mr Comino,
Mr S Smyrnis and Mr Skalkos, Mr Smyrnis also being the secretary of the
company.
Although recorded in the records of the Australian Securities Commission
only as a director of Foreign Language Publications, Mr Skalkos' signature as
Managing Director of Foreign Language Publications may be found on both
correspondence on the letterhead of Foreign Language Publications and on
returns required to be lodged with some official bodies. Further, it is to be
noted that, at the foot of a letter dated 1 September 1993, written under the
letterhead Foreign Language Publications Pty Ltd (Theo Skalkos) (Media
Press Pty Ltd) by Mr Skalkos to the Archbishop, Foreign Language
Publications is described as being one of Theo Skalkos Group of
Company's (sic). Further indications of Mr Skalkos' capacity to control

46

SUPREME COURT

[(1997)

Foreign Language Publications and its various publications may be found (inter
alia) in the second of the articles the subject of this application which article
contains in the Greek language (inter alia) such phrases when translated into
the English language as Our publisher Mr Skalkos and his companies,
Mr Skalkos' Group of Companies and Our publisher Mr Theodoros
Skalkos. Further still, it is to be recorded that in the Greek Herald of
2 August 1996 there appears in the Greek language an article which, when
translated into the England language, had, as its headline:
The publisher Theo Skalkos donates $13,402.00 to the Modern Greek
Department of Macquarie University;
and contained (inter alia) the following:
In discharge of the obligation which he gave days before the publisher of
the Greek Herald and head of FLP Theo Skalkos handed on Wednesday a
cheque for $13,402.80 to the president of OFSE Mr Con Verdzakis (photo
left) and Mr Peter Leodaritis (right) representative of the Treasury which
is collecting money for this purpose and Leonidas Bobotas (second from
right) president of Green Students Foundation of Macquarie University.
Mr Skalkos stressed that he is donating these moneys to the Modern
Greek Department in the memory of the founder of the Department, the
unforgettable Vasilis Georgiou. The representatives of the Treasury for the
collection of the moneys needed to secure a permanent Modern Greek
Department at Macquarie Department thanked Mr Skalkos and disclosed
that they have secured $78,000 for this cause and they invite the
community to continue the donations to secure the Chair of the
Department.
The first of the articles, the subject of the defamation proceedings, appeared
in the Greek Herald of date 27 March 1991 under a headline which, when
translated from the Greek language to the English language, read: The truth
embitters the clergyman but it should be said.
In the second further amended statement of claim filed on behalf of the
Archbishop, it is alleged that the article in question conveyed, either in its
natural meaning, or by way of true innuendo, imputations:
(1) that the Archbishop, as head of the archdiocese of the Greek Orthodox
Church in Australia, made rapacious demands upon members of that Church for
money and property;
(2) that the Archbishop, as head of the Greek Orthodox Church in Australia,
deliberately put the financial wealth of his archdiocese before his religious
responsibilities, as Archbishop of the Greek Orthodox Church in Australia, to
members
of
his
Church
and
the
Greek
community;
each of which imputations was defamatory of the Archbishop.
The second of the articles the subject of the defamation proceedings,
appeared in the Greek Herald of date 1 May 1991 under the headline when
translated from the Greek language to the English language The
differences of the archdiocese with the Greek Herald and over the by-line
when translated from the Greek language to the English language Theo
Skalkos. Immediately under the headline and a photograph of the Archbishop
appears a large photograph of the former Prime Minister Mr R J L Hawke
apparently in conversation with Mr Skalkos, immediately below which
photograph appears in the Greek language a caption which, when translated
into the English language, reads:

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

47

The former Prime Minister, Mr Bob Hawke, receives a barrage of

remarks from our publisher Mr Theo Skalkos, during the recent press
conference that he gave in Sydney. Remarks because he refused to go to
Crete for the 50 years of the historic battle and because he will honour the
President of Turkey Turkut Ozal with the title of the Order of Australia,
while his country made an invasion in Cyprus, as Saddam Hussein did in
Kuwait. Naturally he received no answer to his remarks.
In the second further amended statement of claim it is alleged that this
article, in its natural meaning, or by way of true innuendo, conveyed one or
both of the following defamatory imputations:
(1) that the Archbishop engaged in extortionate conduct, in that he
demanded, as a condition of his approval of the establishment of a Greek
school in Sydney, that the persons who proposed its establishment should
undertake to transfer its ownership to him as representative of the Greek
Orthodox Archdiocese of Australia within five years of its establishment;
(2) that the Archbishop engaged in extortionate conduct, in that he
demanded, as a condition of his approval of the establishment of a Greek
school in Sydney, that the persons who proposed its establishment should
undertake to transfer its ownership to the Greek Orthodox Archdiocese of
Australia within five years of its establishment.
The third article, the subject of the defamation proceedings, appeared in the
New Country newspaper of date 15 February 1992 under a headline which,
when translated from the Greek language to the English language read: A
collection plate of expediency or of humanism? and over a by-line when
translated from the Greek language to the English language Theo
Skalkos.
In the second further amended statement of claim it is alleged that this article
in its natural meaning conveyed defamatory imputations that the Archbishop
was indifferent to the religious welfare of members of the Greek Orthodox
Church in the Queanbeyan area by refusing to appoint a priest to administer to
their needs.
The fourth article, the subject of the defamation proceedings, appeared in the
Greek Herald of date 18 May 1992 under a title which, when translated from
the Greek language to the English language, read Dailies and under a
headline which, when translated from the Greek language to the English
language, read What a coincidence.
In the second further amended statement of claim it is alleged that that article
bore the following imputations each of which was defamatory of the
Archbishop:
(1) that the Archbishop neglected his responsibilities as Archbishop of the
Greek Orthodox Church in Australia by preferring to be away on vacation on a
tropical island instead of attending a ceremony to commemorate the fifty-first
anniversary of the battle of Crete;
(2) that the Archbishop had neglected his responsibilities as Archbishop of
the Greek Orthodox Church in Australia by preferring to be on vacation instead
of attending a function in honour of a former president of the Hellenic
Republic;
(3) that the Archbishop had neglected his responsibilities as Archbishop of
the Greek Orthodox Church in Australia by preferring to be absent from, rather

48

SUPREME COURT

[(1997)

than to attend, a function in honour of a former president of the Hellenic

Republic.
The defamation proceedings were commenced on 7 August 1992, an
amended statement of claim being filed about a month later.
Apparently because of some defect in the manner of pleading imputations an
application was ultimately made on behalf of the opponents to strike out those
imputations, that application being disposed of by Matthews J on 5 February
1993, when her Honour struck out all of the imputations as they were then
pleaded.
Although the material which is before the Court does not disclose when this
was done, it would appear not to be in doubt that, at some time thereafter, a
further amended statement of claim was filed and that thereafter a defence and
a reply was filed and that there the matter rested until about April 1995.
Meantime, there was published in the Star newspaper elsewhere described
as part of the scandal press a Greek language newspaper published in
Athens but a small number of copies of which appear to circulate in Australia
an article the general tone of which is sufficiently indicated by the heading
which, when translated from the Greek language to the English language, was:
SHOCKING. Archimandrite jumped migrant's wife.
The Greek community shaken by Stylianos shamefulness.
So far as the material which is before the Court permits one to judge, no
action has been taken either in Greece or in Australia on behalf of the
Archbishop against the publisher of the Star newspaper or against any
distributor of it in Australia in respect of that article this may well be
explained by the fact that, so it has been said:
The Greek newspaper Star in its issue of 12.3.1994 refuted its
previous publication and with an article under the headline Stylianos
leader in the Macedonian struggle, mentioned that the role of (the
Archbishop) in the controversy of the couple was conciliatory and the
issue was created in order to slander his honour and reputation..
Thereafter in the Tsakpina newspaper a Greek language newspaper
published in Melbourne and also described as being part of the scandal press
of May 1994, there appeared, under a headline which, when translated from
the Greek language into the English language read They accuse Stylianos,
an article which referred to rumours of the Archbishop's involvement in
various illegalities and insinuated, in a less than subtle way, that he had
been involved in an unlawful love affair with the woman the subject of the
article which had appeared in the Star newspaper in February 1994.
So far as the material which is before the Court permits one to judge, no
action was taken by the Archbishop against the publisher, or any distributor, of
Tsakpina in respect of that article.
In September 1994, there appeared in the Tsakpina newspaper under a
headline which, when translated from the Greek language to the English
language, read How he took off her panties, an article attributed to one
Paraxenos. In that article, the writer, having earlier referred to the proceedings
which had been the subject of the May article in Tsakpina, proceeded to
recount, in a less than subtle way, and in rather lurid language, what was
alleged to have occurred between the Archbishop and an air hostess on a flight
from Australia to Greece.
So far as the material which is before the Court permits one to judge, no

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

49

action was taken by the Archbishop against the publisher, or any distributor, of
Tsakpina in relation to that article.
Although the detail of what occurred is not entirely clear, it would appear
that, on a number of days in October 1994, one Spyros Karatzaferis, a journalist
employed by a Greek company, the name of which, when translated into the
English language, appears to be Flash, Radio and Television BroadcastProductions Ltd and which company then was as it may still be the
owner of a radio station, the name of which when translated into the English
language, appears to be Flash 961, FM Stereo, which broadcasts from Athens,
statements in highly coloured, if not lurid, language, relating to the
Archbishop's alleged involvement in an illicit love affair with the woman the
subject of the earlier articles in the Star and Tsakpina newspapers. It seems to
be suggested that those broadcasts were capable of being and in fact were,
received in Australia.
On this occasion, having first invoked the assistance of the Public Prosecutor
of the First Instance Court of Athens to obtain recorded copies of the
broadcasts, the Archbishop in March 1995, commenced proceedings in the
Multi Membered First Instance Court of Athens apparently in reliance upon
provisions of the Greek Criminal Code seeking to have Mr Karatzaferis and
Flash Radio & Television Broadcast-Productions Ltd dealt with for what in
some of the material which is before the Court, is described as the crime of
slander.
Meantime, in the edition of the Tsakpina newspaper of February 1995 under
a headline which when translated from the Greek language to the English
language, was:
Writ by Stylianos against Greek journalist
Exclusive
Italian Catholic woman baptised by Stylianos as Christian Orthodox and
then he helps her to have something to confess
there appeared an article which, once more, rehearsed the story which had
earlier been published in the Star newspaper and the May 1994 edition of
Tsakpina.
In July 1995, Simpson J dealt with an application which had been made on
behalf of the Archbishop for leave to file the second further amended statement
of claim. On 24 July 1995, her Honour granted the leave sought and ordered
the Archbishop to pay the opponents' costs of and incidental to the application,
at the same time granting to the opponents leave to proceed to have the costs
assessed forthwith.
Thereafter, on 28 July 1995, there was published in the Greek Herald an
article which, when translated from the Greek language to the English
language, was as follows:
DEFAMATION CLAIM AGAINST GREEK HERALD ARCHBISHOP ORDERED TO PAY COSTS.
SYDNEY The Supreme Court of New South Wales heard on
Monday 24 July 1995 an interlocutory application in the case of the
defamation action commenced in 1992 by Archbishop Stylianos against
Foreign Language Publications Pty Ltd, Theo Skalkos and Michael
Mystakidis, the joint Defendants to the action.
The Archbishop by his application sought to amend his case yet again
and the Defendants challenged the Archbishop's amendments. Justice

50

SUPREME COURT

[(1997)

Simpson upheld the objections of the Defendants and ordered the

Archbishop to amend his case to take account of the objections of the
Defendants. Justice Simpson also ordered the Archbishop to pay all costs
of the Defendants of and incidental to this application.
In accordance with the Court order, the Defendants have commenced
assessment of their costs in the matter.
Once the costs are assessed the Defendants will seek payment of their
costs from the Archbishop.
On 1 August 1995, there appeared in the Kosmos newspaper, another Greek
language newspaper, apparently circulating in Sydney, an article which, when
translated from the Greek language to the English language, was as follows:
THE ACTION COMMENCED BY THE ARCHBISHOP IS
PROGRESSING.
The writ for defamation commenced by the Archbishop against the
Greek Herald is progressing normally and the publication last Friday was
an attempt to create false impressions legal counsel for the Archbishop
replied when asked in that respect.
The same legal counsel clarified that an amendment of the writ
(statement of claim) has been submitted to Court to strengthen even more
the position of the Plaintiff.
The defence of the Defendants raised objections but they were
dismissed.
In cases of this nature added the legal counsel of the Archdiocese, a
legal fee is charged which is settled in total usually at the end of the
proceedings.
To our question as to when the case will be heard, it was stated that this
Friday the Court will set a timetable of proceedings and that the hearing
will take a few more months.
While, in the normal course of events, this article would not have attracted
any comments, I have recorded it here for it provoked a letter of 15 August
1995 (Annexure M to Affidavit T Lazaropoulos dated 19 February 1997)
from the opponents' solicitor to the Archbishop's solicitors, in which letter the
opponents' solicitor, after complaining of what were said to be misrepresentations on the part of the Archbishop's solicitors or counsel, continued:
On the whole, the comments of legal counsel in the article of
1 August 1995 are false and dangerously deceptive. These comments are
in contempt of court as an obvious attempt to influence potential jurors,
and are also designed to intimidate the defendants in this matter.
In this regard I am instructed that my client requires that you provide to
my client a copy of the statement to be published in the Kosmos
newspaper within fourteen (14) days of the date of this letter to correct the
statements made by yourselves and/or Counsel in the article of 1 August
1995.
If this statement is not forthcoming, then I am instructed to lodge a
formal complaint to the Law Society and/or the Bar Association in this
regard. I am also instructed that the offending article will be raised in
mitigation of damages at the trial, and as such it may be necessary for the
legal counsel referred to in the offending article to give evidence. This
gives rise to the issue of conflict of interest for the legal counsel in
question.

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

51

Having been rebuffed by the Archbishop's solicitors who, so it seems,

lodged with the Legal Services Commissioner a complaint in respect of the
opponents' solicitor's conduct in writing his letter, the opponents' solicitor on
22 August 1995 wrote to the Legal Services Commissioner a letter in which,
after re-hearsing the matters referred to in his earlier letter, continued:
The errors in the Kosmos article are as stated in my letter dated
15 August 1995. They amount to a complete misstatement of the nature
and result of the proceedings before Simpson J. I was most concerned as
quite apart from the impact this would have on any potential jurors who
read Kosmos, the publication of these inaccurate statements is intimidatory
of my client.
I also enclose a copy of the letter dated 17 August 1995 received in
reply from Messrs Tzovaras & Company. I note that Messrs Tzovaras &
Company have lodged a complaint against the writer, without providing a
proper reply to the matters raised in my letter dated 15 August 1995.
I am concerned as a practitioner that a complaint has been lodged
against me in this matter, in the circumstances where prompt correction of
the statements contained in the article dated 1 August 1995 were necessary
to protect my client against the mis-statements and to ensure that no
potential jurors are influenced by these comments.
Despite the fact that, on 24 July 1995, Simpson J had granted to the
Archbishop leave to file the second further amended statement of claim in the
form presented to her, the opponents refused to plead to it when it was filed on
2 August 1995.
Thereafter, on 20 October 1995, David Hunt CJ at CL dealt with an
application made on behalf of the Archbishop for an order that the opponents
be forced to plead. His Honour's reaction to the various objections which were
raised on behalf of the opponents as justifying their refusal to plead is
succinctly revealed in the latter part of the judgment which he delivered on that
day. There, his Honour said:
Parties who take unarguable, trivial and nitpicking objections which
could easily be resolved without resort to disputed applications should be
ordered to pay costs on an indemnity basis. That is what will happen in the
present case.
The opponents' amended defence was filed on 3 November 1995.
Although it is not necessary to record in any great detail the matters
contained in that amended defence, some indication of the issues raised by it
will be given when I record the following:
(1) as to the article in the Greek Herald of date 27 March 1991, the amended
defence, in addition to putting in issue the publication of the article, that the
article is defamatory of the Archbishop, and that article bore the imputations
pleaded, alleged:
(a) that the matter complained of was published under qualified
privilege;
(b) that the matter complained of amounted to comment relating to
matters of public interest;
(c) that the matter complained of was published in a context which
conveyed other imputations and that by reason of the substantial truth
of one or more of those other imputations the reputation of the
Archbishop was not further injured;

52

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[(1997)

(2) as to the article in the Greek Herald of date 1 May 1991, the amended
defence, in addition to putting in issue publication of the article, that the article
was defamatory of the Archbishop, and that the article bore the imputations
pleaded, alleged:
(a) that the matter complained of was published under qualified
privilege;
(b) that the matter complained of amounted to comment relating to
matters of public interest;
(c) that the matter complained of was published in a context which
conveyed other imputations and that by reason of the substantial truth
of one or more of which other imputations the reputations of the
Archbishop was not further injured;
(3) as to the article in New Country of date 15 February 1992, the amended
defence in addition to putting in issue publication of the article, that the article
was defamatory of the Archbishop, and that it bore the imputations pleaded,
alleged:
(a) that the matter complained of was published under qualified
privilege;
(b) that the matter complained of amounted to comments relating to
matters of public interest;
(c) that the matter complained of was published in a context which
conveyed other imputations and that by reason of the substantial truth
of one or more of which other imputations the reputation of the
Archbishop was not further injured;
(4) as to the article in the Greek Herald of date 18 May 1992, the amended
defence in addition to putting in issue publication of the article, that the matter
complained of was defamatory of the Archbishop, and that it bore the
imputations pleaded, also alleged:
(a) that the matter complained of was published under qualified
privilege;
(b) (semble) the pleading, in this respect (par 16) is obscure that
the matter complained of amounted to comment relating to matters of
public interest;
(c) (semble) the pleading (par 17) in this respect is also obscure
that the matter complained of was the natural and probable
consequence of publication by the Archbishop to the opponents and
other members of the Greek community of certain information and
that the Archbishop had thereby consented to the publication of that
information;
(d) that the matter complained of was published in a context which
conveyed other imputations and that by reason of the substantial truth
of one or more of which other imputations the Archbishop's
reputation was not further injured;
(e) that the matter complained was published in such circumstances that
the Archbishop was unlikely to suffer harm.
In the reply to the amended defence which was filed on his behalf, the
Archbishop, in addition to putting in issue the various matters of defence raised
by the opponents, pleaded, in respect of each article complained of, that the
opponents were actuated by express malice in the publication of the matter
complained of.

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

53

Since, on the hearing of this application, the opponents sought to complain of

the failure of the Archbishop's solicitors to provide particulars of the reply to
the amended defence, which particulars had been sought on 16 January 1996, it
should be recorded, here, that the evidence would appear to demonstrate that,
although the opponents' solicitor does not recall having received such a letter,
and has not been able to find it on his file, those particulars which had been
sought were forwarded in a letter bearing date 14 February 1996 despite the
apparent non receipt of that letter, the evidence would tend to indicate that no
complaint as to the failure to provide particulars sought was raised prior to the
hearing of this application.
On 17 June 1996, J A McGruther Esq, a costs assessor, issued his certificate
of assessment of the party/party costs payable by the Archbishop pursuant to
the order made by Simpson J in the sum of $13,402.80.
Thereafter, on 25 June 1996, the opponents' solicitor, writing on the
letterhead of Foreign Language Publications, wrote to the Archbishop's
solicitors (inter alia):
Unless the sum of $13,402.80 is received at this office within seven (7)
days of the date of this letter, I am instructed to commence enforcement
proceedings against your client for the sum of the judgment debt without
further notice.
On 1 July 1996, the Archbishop's solicitors wrote to the opponents' solicitor:
We refer to the solicitor of assessment issued on 17 June 1996 in the
sum of $13,402.80, and enclose our client's cheque in that sum in full
payment of the same.
The cheque which accompanied that letter bore date 25 June 1996 and was
drawn in favour of T Lazaropoulos, Solicitor on an account in the name of
the Greek Orthodox Archdiocese of Australia Property Trust conducted with
the National Australia Bank Ltd at its Centennial Plaza Branch.
On 2 July 1996, the opponents' solicitor, again writing on the letterhead of
Foreign Language Publications, wrote to the Archbishop's solicitors a letter
which given the content and tone of the two articles of which complaint is
made in this application should be set out in full. It was:
RE THEODORE SKALKOS AND OTHERS v STYLIANOS
HARKIANAKIS
I refer to your letter dated 1 July 1996.
I note that your letter of the above date encloses your client's cheque in
the sum of $13,402.80. However, the cheque is made out to the writer
personally instead of my client. As a corporate solicitor, I do not operate a
trust account and as such I am not able to deposit this cheque on behalf of
my client. As such, I enclose the cheque by return and request that your
client draw another cheque for the same amount payable to Foreign
Language Publications Pty Limited.
I await receipt of this cheque by return
(my emphasis) which letter produced a reply from the Archbishop's solicitors
dated 4 July 1996 in the following terms:
We refer to your letter dated 2 July 1996 concerning our client's
cheque in the sum of $13,402.80.
We note that the Certificate of Assessment requires the assessed costs
be paid to the First, Second and Third Defendants. Accordingly, given that
you do not conduct a trust account, kindly provide to us an authority,

54

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[(1997)

executed of each of your three clients, authorising us to pay the whole of

the assessed costs to the Third Defendant.
That request produced two letters, each written on the letterhead of
Foreign Language Publications, the first signed by Mr Skalkos as Managing
Director
and the second signed by Mr Mystakidis as Editor Greek Herald, authorising
the Archbishop's solicitors to pay the whole of the assessed costs to Foreign
Language Publications.
Thereafter, on 12 July 1996, the Archbishop's solicitors wrote to the
opponents' solicitor:
We refer to the authority signed by the First and Second Defendants in
the proceedings, which authorities were received by us on 10 July 1996.
In accordance with those authorities, we attach our trust account cheque
payable to the Third Defendant in the sum of $13,402.80 in full payment
of the whole of the assessed costs in this matter.
As the terms of that letter would indicate, the attached cheque was a cheque
drawn in favour of Foreign Language Publications on the trust account
conducted by the Archbishop's solicitors with the National Australia Bank Ltd
at its Law Courts Branch.
On 16 July 1996, there appeared in The Age newspaper an article by one
David Elias entitled Unorthodox Greeks. It is not necessary to set out that
article in detail, its content and tone being sufficiently indicated by the opening
six paragraphs which I set out below. They are as follows:
ONE DIPLOMAT has been silenced in church by an archbishop,
another's path blocked by a bishop; a mob, angered by the suspension of
their priest has caused an archbishop to take refuge inside a church while
priests, locked out of their churches, have preached sermons on the street.
Intense passion has always run high in this modern Greek tragedy that has
been played out virtually unnoticed by mainstream society for more than
half a century.
On the face of it, the largest Greek community outside Greece is a
successful model of Australian multi-culturalism but it is torn apart by an
unholy war that has destroyed friendships and even split families.
At its heart is a power struggle that manifests itself in factional fights
within the Greek Orthodox Church over the control of property worth
hundreds of millions of dollars.
On one side Archbishop Stylianos, the autocratic primate of Australia,
demands the right to rule on all spiritual matters in a society that is deeply
religious; on the other local communities, some more than 100 years old,
fight to retain ownership of their churches and run their Greek language
schools and welfare institutions for which they have toiled long and hard
to fund; on the fringes an independent Greek Church run from Adelaide by
a former archdiocesan bishop, Paul Laios.
But it is really a battle for ultimate authority over every facet of the
lives of half a million people seeking to hold on to threads of their cultural
origins in a new homeland.
It is said that that article was republished, in the English language in the
Greek Herald, but, on what date is not clear.
The first of the articles the subject of this application was published in the
New Country newspaper of date 20 July 1996. Although two translations of that

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

55

article have been provided to the Court, the parties have proceeded upon the
basis of the following translation:
BY COURT ORDER ARCHBISHOP STYLIANOS PAYS
TO THE GREEK HERALD $13,402.80

WE DONATE ALL OF IT TO MACQUARIE UNIVERSITY FOR THE

CHAIR OF MODERN GREEK IN MEMORY OF VASSILIS
GEORGIOU.
The persecution mania of sinful Archbishop Stylianos against certain
newspapers that do no favours, do not buckle under pressure and persist
in questioning public figures in authority, was, is and will continue to be
expected.
One of these papers which is persecuted by Mr Stylianos is also the one
you are reading. The Gr Herald annoys him because it does not play
favourites, because it does not tolerate disinformation and misinformation.
He treats the Press with contempt; those annoying newspapers. His Press
conferences are for the type of journalists who arrive coached with ears
that hear and tongues that ask whatever pleases and not what annoys; and
who write mostly suggested material that serves the interests of Stylianos.
On the Gr Herald which annoys, probes and reveals, he turns his
blowtorch and takes to court. Pay attention! Not Divine Justice, but civil
justice for obvious reasons.
We cannot of course expand on this subject. The law does not allow it.
We can, however, say that the Court in the same defamation case ruled in
favour of the Gr Herald and ordered Archbishop Stylianos to pay us
$13,402.80 costs.
Initially the cheque that reached our company was drawn on the Trust
Account of the Holy Archdiocese and not on Archbishop Stylianos'
account and was payable to our legal adviser (see photocopy). The cheque
was not accepted and was returned to the Archdiocese as unacceptable.
The fresh cheque (see photocopy) is drawn in favour of our company but
on the Trust [account] of the Archbishop's solicitors.
We ask the Trust of the Holy Archdiocese:
Since the case of Archbishop Stylianos against our newspaper is a
personal one, how is it that, in order to comply with the court's order, the
payment was made out of the Holy Archdiocese's money, which in the
final analysis, is probably the money of our compatriots? Is this why
people put their money in the flying saucers every Sunday? So that
Mr Stylianos can pay lawyers and courts? Is this why people make
donations? So that every now and then Mr Stylianos goes to courts and on
trips? Next, we will reveal all the lawsuits the Archdiocese has brought
against our compatriots for the properties of the Churches everything
will be brought out in the open.
This sum of $13,402.80 is not Mr Stylianos' money. The cheque does
not have his signature. It is the money of the Greek migrant and the
Gr Herald doesn't want it. We have never taken a compatriot to court
and will never accept such money from courts, no matter how much; much
more so from the Church.
For this reason the $13,402.80 that the Archbishop Mr Stylianos is
paying us, probably from the Archdiocese's funds, like the previous
cheque and not from his own pocket, we donate with interest (if any) to

56

SUPREME COURT

[(1997)

Macquarie University for securing the Faculty of Modern Greek in

memory of the unforgettable Vassilis Georgiou. At his funeral the
Archbishop did not allow the Consul General Mr Efstathios Doras to
deliver the eulogy.
The soul of the beloved son our Community Vassilis Georgiou will be
relieved by the donation of $13,402.80 because of the Archdiocese's
unholy behaviour after his death and it will be further elated when his
wishes begin to materialise.
We donate this sum of $13,402.80 in my memory Vassilis Georgiou,
fighter for the knowledge of Greek.
Next week we will publish photographs from the handing over of the
cheque of $13,402.80 to the Fund Raising Committee of the Faculty of
Modern Greek at Macquarie University.
VASSILIS YOU ARE ALIVE AND YOU ARE LEADING US TO THE
MATERIALISATION OF YOUR VISIONS.
TH SKALKOS
As will be apparent from the text of this article, incorporated into the text
were photocopies of the two cheques which had earlier been forwarded by the
Archbishop's solicitors to the opponents' solicitors.
The second of the articles the subject of this application was published in the
Greek Herald newspaper of date 22 July 1996. Again, two translations of this
article have been provided to the Court but the parties have been content to
proceed upon the basis of the following translation:
As we saw it As we heard it As we read it
That's where the faithful's money ends up,
Mr Stylianos.
Court Cases are one of the most expensive things in this country.
Everyone knows that anyone who gets involved in these sorts of matters,
dips his hand deep into his pocket waiting for their progress or conclusion
that often doesn't happen because of lack of money or wrong budgeting.
It is known that the Holy Archdiocese of Australia is involved in many
such cases as the hobby of the President of its Synod is to file writs for the
purpose of either claiming Community properties that were built by our
compatriots with their sweat, or to silence the Press that criticises him.
Christian love and the evangelical maxim Love even your enemies' don't
apply.
Civil Courts are where the Archbishop usually turns to embroil people in
dangerous legal paths, to either weaken or destroy them. It is not, in any
event, difficult as he has behind him the inexhaustible Trust, to which flows
daily the money of the faithful who donate to the church by lighting candles
or putting money in the church's plates or donating to charity organisations,
such quality [charity] being the only ones most of them lack.
He has thus succeeded to grab many buildings (characteristic examples
are the case of Marrickville and others whereby private individuals were
forced to abandon very expensive lawsuits, after losing 90,000 dollars out of
their own pockets, in their efforts to salvage for the area's residents the fruit
of their hard work; only to end up seeing the properties sold immediately
after by the notorious Trust and the money invested elsewhere).
For years the representative of the Christian Orthodox Church of
Australia files writs against our publisher Mr Skalkos and his companies.

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

57

Our publisher has no Trust behind him from which to draw money.
The families of three hundred workers earn their living from him. The
objective of he who represents the Church and Love is to destroy him and
to drag down with him all the others. It is undoubtedly unprecedented for a
prelate to state publicly that he will pull our pants off.
The difference is that our Group [of Companies] spends hard earned
money, whereas he behaves like a Lord and Master as well as owner of all
the churches built by the faithful; and employs two hundred priests that
bring him the money that he spends (like the clubs and their poker
machines).
Except with us his calculations fell wide of the mark. We actively
defend the legal proceedings, we are not afraid of anything, neither his
threats nor whatever else he says, firstly because we have done nothing
illegal and secondly because he himself should be afraid of his conduct
which will be brought out in the open if we ever come to an open court
hearing. Criticism is an inalienable right in a free democracy. And the
country we live in is democratic. It is not a Homeini type regime. Nor that
of Papadopoulos. There are Authorities and Government. His powers are
non existent. And Justice is blind. The Judges here do not look at mitres,
pectoral crosses or crooks. No one is above the law.
Our publisher said on the radio that if he took off the cassock and
walked the streets like an ordinary citizen, no one would take any notice of
him. Not even the priests would talk to him.
The result of all these issues and the ensuing proceedings that cannot be
mentioned at this stage is that the Archdiocese of Australia following a
court order and during the progress of the case, was compelled to
compensate Mr Skalkos' Group (of companies) with the sum of
$13,402.80. We do not know how many cassocks were torn in anger,
but court decision no 13840 of 1995 is irrevocable and payment must be
made forthwith.
It has been revealed that moneys earmarked for the relief of the needy,
for charitable deeds to the public and other Christian activities are
squandered because of hate. And it's the money the faithful give believing
that their souls will be saved.
A simple thought came to our publisher Mr Theodoros Skalkos as soon
as he received the money that was rightfully his; to donate it to Macquarie
University for the Faculty of Modern Greek, where it should already have
been sent by certain sanctimonious rascals.
In memory of fighter Professor Vassilis Georgiou whom we have
recently lost, and whose memory the Archbishop insulted by not allowing
the Consul General of Greece to deliver the eulogy.
The money given by Greeks returns to Greeks, albeit indirectly. Our
fellow-countrymen's money that Mr Stylianos is suing to destroy us, our
publisher donates to the Faculty of Modern Greek at Macquarie
University, for our children, for our country, for our community.
Our Group [of companies] is always first to the barricades for just causes.
Antonis Leonis
On this occasion, too, there were incorporated into the text of the article
photocopies of the two cheques which had earlier been forwarded by the
Archbishop's solicitors to the opponents' solicitors.

58

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On 23 July 1996, the Multi-Membered First Instance Court of Athens

delivered its judgment in respect of the proceedings which had been brought on
behalf of the Archbishop against Spiros Karatzaferis and Radio and Television
Broadcast-Productions Ltd. In the absence of any evidence as to the relevant
Greek law, it is difficult to make much sense of the court's judgment. However,
as best as I can judge it, the burden of the court's judgment is to be found in
that part which is said, in translation, to be:
Based on the above referred facts, it is the Court's judgment that the
crime of slander has not been committed, because it was not proven by the
above facts that he acted knowing the untruthfulness of the above
mentioned actual events, nor has any special purpose for abuse appeared,
namely any intention by him directed toward abuse of the plaintiff, as an
expressed doubt for his moral or social worthiness. On the contrary, it was
proven that he acted out of justified interest and for the sole purpose of
informing the community in view of the great general interest of the
specific issue. Although the criticism to the plaintiff was very sharp and its
context was particularly of a scathing and ironic style, the plaintiff due to
his priesthood and position is obliged to accept even unfavourable
criticism and comments, provided they do not go beyond the limits of the
journalistic criticism, as in this case.
This application was commenced on 1 August 1996, on which day there was
filed a notice of motion in which the Archbishop sought to have Mr Skalkos
and Foreign Language Publications judged guilty of contempt of court for
having published, or caused to be published, the two articles to which I have
earlier referred. As I have noted at the commencement of these reasons, the
original notice of motion was, by leave granted by the Court at the
commencement of the hearing of this application, later amended.
On 2 August 1996, there was published in the Greek Herald newspaper an
article which, when translated from the Greek language to the English language
was in the following terms:
THE PUBLISHER THEO SKALKOS DONATES $13,402.00 TO THE
MODERN GREEK DEPARTMENT OF MACQUARIE UNIVERSITY.
In discharge of the obligation which he gave days before the publisher
of the Greek Herald and the head of FLP Theo Skalkos handed on
Wednesday a cheque for $13,402.80 to the President of OFSE Mr Con
Verdzakis (photo left) and Mr Peter Leondaritis (right) representative of
the Treasury which is collecting money for this purpose and Leonidis
Bobotas (second from right) President of Greek Students Foundation at
Macquarie University.
Mr Skalkos stressed that he is donating these moneys to the Modern
Greek Department in memory of the founder of the Department, the
unforgettable Vasilis Georgiou.
The representatives of the Treasury for the collection of the moneys
needed to secure a permanent Modern Greek Department at Macquarie
University thanked Mr Skalkos and disclosed that they have collected
$78,000 for this cause and they invite the community to continue the
donations to secure the chair of the Department.
The parties appear to disagree as to the state of preparedness for trial which
has been reached in the proceedings. However, on the hearing of this

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

59

application, the Court was informed that the parties were agreed that the earliest
possible hearing date for the proceedings is February 1998.
When the application was called on for hearing, Mr T E F Hughes QC
appeared with Mr T D F Hughes for the Archbishop, while Mr S M Littlemore
QC appeared with Ms J C Gibson for the opponents.
At the commencement of the hearing, the Court raised with counsel the
question whether, in cases such as this is, the preferable course was to proceed
by way of substantive summons rather than by notice of motion in the original
proceedings, a matter to which I will refer later.
Put broadly, the claimant's case is that each of the articles complained of
constituted contempt of court on two grounds:
(1) that each had a tendency, as a matter of practical reality, to interfere with
the course of justice in, and to prejudice the fair trial of, the principal
proceedings; and
(2) the content of each of the articles, and the circumstances of publication,
give rise to a clear inference that the opponents published each of those articles
with the intention of interfering with the course of justice in, and prejudicing
the fair trial of, the principal proceedings; given such an intention, the objective
capacity of the publication to cause interference or prejudice is sufficient to
establish liability for contempt notwithstanding the absence of actual
interference or prejudice.
So far as the first article was concerned, the claimant's case was that that
article had, as a matter of practical reality:
(1) a tendency, because of its threatening, abusive and intemperate, language,
to deter the claimant from prosecuting the principal proceedings;
(2) a tendency, because of such language, to engender such prejudice against
the claimant in the Greek speaking community as would be likely to deter
members of that community from testifying in the proceedings on behalf of the
Archbishop; and
(3) a tendency, because of such language, to engender prejudice against the
claimant in the minds of persons who may be summoned to act as jurors in the
trial of the principal proceedings.
The claimant's case in relation to the second article was to the same effect.
Put broadly, the opponent's defence to the case sought to be advanced by the
claimant:
(1) as, in a case such as this was said to be, an applicant must show that what
has been published was either clearly intended, or at least calculated, to
prejudice a trial which was pending, neither of the articles complained of could
constitute contempt, as the principal proceedings constituted nothing more than
a stop writ which was not intended to proceed to trial;
(2) whatever may be held to be the position in relation to Foreign Language
Publications, it had not been established that Mr Skalkos was the publisher, or
that he ought to be held vicariously liable for the acts of Foreign Language
Publications in publishing, either article;
(3) neither of the articles the subject of the application had a tendency, as a
matter of practical reality, to interfere with, or prejudice the trial of, the
principal proceedings since:
(a) prior to, and contemporaneously with, the publication of the articles
in question, the Archbishop had been the subject of strongly critical
articles, and of a highly defamatory radio broadcast, which articles

60

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[(1997)

had been circulated, and which broadcast had been heard, in

Australia;
(b) given the apparent polarisation of views among the members of the
Greek Orthodox community, it would be improbable in the extreme
that the articles complained of would prejudice people who might
otherwise have been willing to give evidence on behalf of the
Archbishop on the hearing of the principal proceedings;
(c) given the polarisation of views among members of the Greek
Orthodox community, it would be improbable in the extreme that any
member of that community who was summoned for jury service
would not be struck from the jury panel on the hearing of the
principal proceedings; in any event, given the delay of at least
eighteen months from the time of publication of the articles to the
earliest possible hearing date for the principal proceedings, any effect
which the articles might otherwise have had would be spent long
before the principal proceedings came on for trial;
(4) neither the terms of either article, nor the circumstances in which it was
published, justifies an inference that it was published with the intention of
interfering with the course of justice;
(5) even if it be held that either article had, as a matter of practical reality, a
tendency to interfere with the administration of justice, that tendency was
merely an incidental, but not intended, by-product of the ventilation of a matter
of public interest, it following, that neither publication was to be regarded as
constituting a contempt of court.
I approach the consideration of the matters raised for determination on this
application with two basic principles in mind, they being:
(1) contempt of court of the type alleged to have occurred in the present case
being a misdemeanour at common law, it is clear and was so long before the
recent decision of the High Court in Witham v Holloway (1995) 185 CLR 525
that a person cannot be adjudged guilty of such a contempt of court unless
the various elements in the charge be proved beyond reasonable doubt; and
(2) the essential elements of a charge of contempt of court of the type now
under consideration are that the alleged contemnor published matter which was
either intended, or, as a matter of practical reality, had a tendency, to interfere
with the course of justice in connection with pending proceedings.
In the light of these basic principles, the first question which falls for
determination is whether it has been established, to the required degree of
satisfaction, that:
1. Mr Skalkos; and/or
2. Foreign Language Publications
has published or caused to be published, either, or both, of the articles in
question.
As, in a case such as this is said to be, it is the publication of matter which is
likely, or intended, to interfere with the course of justice which is an essential
element in the contempt alleged, it would seem to follow, as a matter of logic,
that anyone who can be said to bear the real responsibility for the publication of
the matter complained of, is liable to be dealt with for contempt.
Where the matter complained of, and which is found to have been intended,
or likely, to interfere with the course of justice, has been published in a
newspaper, the editor, and the publisher, will invariably be held liable for the

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

61

contempt found established, the former, since he is normally to be regarded as

having ultimate and overall control of the contents of his newspaper, and the
latter since he, or it, is clearly to be held responsible for the contents of his, or
its, newspaper (see, eg, R v Evening Standard Co Ltd [1954] 1 QB 578; R v
Odhams Press Ltd; Ex parte Attorney-General [1957] 1 QB 73; R v Thomson
Newspapers Ltd; Ex parte Attorney-General [1968] 1 WLR 1; [1968] 1 All ER
268), although there may be cases in which, by reason of lack of knowledge on
the part of the editor, or by reason of the failure of a system designed to prevent
contempt (see, eg, R v Thomson Newspapers Ltd), the court, while imposing a
penalty on the publisher, may take the view that it is not appropriate to impose
a penalty on the editor.
It does not, however, follow from the fact that the editor and the publisher
will always be held guilty of a contempt which has been found established that,
in an appropriate case, others may not be held liable. Far from that being so, the
authorities reveal cases in which a reporter: R v Evening Standard Co Ltd;
Registrar of the Court of Appeal v John Fairfax Group Pty Ltd (Court of
Appeal, 21 April 1993, unreported); Special leave to appeal to High Court
refused 19 November 1993 (Jones v Registrar of the Court of Appeal (1993) 22
Leg Rep SL1), a printer (R v Thomson Newspapers Ltd), and a distributor
(R v Griffiths; Ex parte Attorney-General [1957] 2 QB 192) have been held
guilty of contempt.
While, in the case of a newspaper company, the directors will not normally
be held responsible for a contempt by publication, it seems to me that if they,
or any of them, actually involve themselves, or involves himself, in publication,
there is no reason in logic why they, or he, should not be held liable for any
contempt of court which might be committed. Support for that view may be
found in the judgment of Hope JA (with whom, on this aspect of his judgment,
Moffitt P and Mahoney JA (as the then was) agreed) in Attorney-General
(NSW) v Willesee [1980] 2 NSWLR 143, where, in the course of his judgment
(at 157) his Honour said:
In a real sense the position of Mr Willesee is not to be distinguished
from that of the third opponent. He was its managing director. The
secretary and assistant general manager of the second opponent stated in
his affidavit that the contract by the second opponent for the production of
the programme was between the second opponent of the one part and both
the first and third opponents of the other parts. It is admitted that
Mr Willesee was in control of the programme and in a position to exercise
control over its contents. These circumstances establish that Mr Willesee
had a very real responsibility for the contents of the programme and for its
transmission, and the charge against him has, accordingly, been made
out;
(see also St James Evening Post; Roach v Garvan (1742) 2 Atk 469; 26 ER
683; R v Bolam; Ex parte Haigh (1949) 93 Sol J 220; Re Beard v W R Rolph &
Sons Pty Ltd [1955] Tas SR 19 at 38, per Gibson J). The material which has
been placed before the Court, and to which I have earlier referred, in my view
justifies it being held that, in the present case, Mr Skalkos is far more than
being a mere director of Foreign Languages Publications, and that, on the
contrary, he is a person who actively involves himself in the publishing of at
least the Greek Herald and the New Country and, further, that he was the
author of the article appearing in the New Country of date 20 July 1996.

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[(1997)

It follows, in my view, that, in the present circumstances, each of Mr Skalkos

and Foreign Languages Publications ought to be held to have published each of
the articles the subject of this application.
The question then is, whether either of those articles was intended, or was, as
a matter of practical reality, likely, to interfere with the course of justice in
relation to the principal proceedings;
As I have earlier recorded, the claimant submitted that the content of each of
the articles, and the circumstances of publication, give rise to a clear inference
that the opponents published each of the articles with the intention of
interfering with the course of justice in, and prejudicing the fair trial of, the
principal proceedings. Although the to me somewhat emotional and
extravagant language of each of the articles, coupled with the condemnatory
attack on the Archbishop and the self laudatory praise of Mr Skalkos and
Foreign Languages Publication, would permit an inference that it was the
intention of Mr Skalkos and Foreign Languages Publications to interfere with
the administration of justice by subjecting the Archbishop to improper pressure
not to proceed with the principal proceedings, I do not consider that that
inference is the only inference which might reasonably be drawn, it following
that I am not persuaded, to the appropriate standard, that Mr Skalkos and
Foreign Language Publications did intend to interfere with the course of justice
in the way submitted. In this regard I would merely observe that similar
features of extravagant and emotional language, and condemnation of the
Archbishop and self praise of Mr Skalkos and Foreign Language Publications,
may be found in the various articles which are the subject of the principal
proceedings.
The question which then arises is whether, absent a finding of intention to
interfere with the due administration of justice, the articles have, or either has,
as a matter of practical reality, a tendency to interfere with the course of justice
in any of the respects advanced on behalf of the claimant.
Despite the time which has passed since it was delivered, the judgment of
Jordan CJ in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd
(1937) 37 SR 242; 54 WN (NSW) 98 has frequently been referred to in later
cases (see, eg, Attorney-General v Times Newspapers Ltd [1974] AC 273 at
296, per Lord Reid; Victoria v Australian Building Construction Employees'
and Builders Labourers' Federation (1982) 152 CLR 25 at 59-60, per
Gibbs CJ; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 18-19) as
being in the nature of a classic statement of the law in this regard. In the course
of his judgment, Jordan CJ said (at 248-250; 99-100):
It is convenient in the first instance to consider the general principles
which are applicable in such a case as the present. It is a well established
general rule that any publication which has a tendency to interfere with the
administration of justice by preventing the fair trial of any proceeding in a
Court of justice is a contempt of court, and that if it is shown beyond
reasonable doubt that such interference was either intended or likely, this
Court will exercise its jurisdiction to punish summarily the criminal
offence which is constituted by the contempt: Bell v Stewart (1920) 28
CLR 419 at 430-432; 4 Austn Digest 277. When intention is established to
interfere with the proper administration of justice by means of a
publication which had a tendency to produce that result, a clear case of
contempt is made out, calling for sharp punishment. Where the particular

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

63

form of contempt complained of is the publication of matter which in fact

has a tendency to prevent a fair trial by prejudicing the parties to litigation
in a Court of justice in conducting that litigation, if intention to cause such
prejudice is established a serious case of contempt is at once made out,
whether the publication refers to the subject matter of the litigation, or
takes the form of mere general denigration of the party in question:
Higgins v Richards 28 TLR 202; Ex parte Myerson: Re Packer and
Smith's Weekly Publishing Co 39 WN 260; 4 Austn Digest 280. But if no
such intention is established, the rule that the publication of matter
tending, or even likely, to prejudice a party in conducting litigation
constitutes a contempt of Court is not invariable.
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: In re
Labouchere; Kensit v Evening News Ltd 18 TLR 208; Phillips v Hess
18 TLR 400; R v Daily Mail; Ex parte Factor 44 TLR 303; Gaskell &
Chambers Ltd v Hudson, Dodsworth & Co [1936] 2 KB 595 at 602. 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: cf In re Cornish; Staff v Gill 9 TLR
196; Higgins v Richards 28 TLR 202.
Save only that later authorities have introduced such phrases as that there
should be a substantial risk of interference, or a real risk of interference
or that the matter complained of should as a matter of practical reality have
the requisite tendency, the substance of his Honour's judgment remains
unchallenged as a correct statement of the law.
For present purposes, it is sufficient to record that, if the effect of publication
of the matter complained of would be to subject a litigant to improper pressure
to discontinue, or to compromise, proceedings (Attorney-General v Times
Newspapers Ltd; Commercial Bank of Australia Ltd v Preston [1981]

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[(1997)

2 NSWLR 554; Attorney-General v Hislop [1991] 1 QB 514) or would expose

a litigant to a real risk that potential jurors in a pending trial whether civil or
criminal would be prejudiced against him (Attorney-General for New South
Wales v John Fairfax & Sons Ltd (1985) 6 NSWLR 695) then the publication
complained of might properly be regarded as having had the appropriate
tendency and, thus, constituting a contempt of court.
In determining whether, in any particular case, a publication, as a matter of
practical reality, has the relevant tendency, regard must be had to the material
published and the probabilities as at the date of publication: Attorney-General
for New South Wales v John Fairfax & Sons Ltd; Attorney-General v MGN Ltd
[1997] 1 All ER 456.
As will be apparent from what I have earlier recorded, at the forefront of the
opponents' defence to this application was the submission that neither of the
articles complained of could constitute contempt, as the principal proceedings
constituted nothing more than a stop writ and were not intended to proceed
to trial, to support which submission Mr Littlemore relied upon the decision of
the Divisional Court (Lord Hewart CJ, Avory J and Branson J) in R v Editor of
the Daily Mail; Ex parte Factor (1928) 44 TLR 303. In the judgment of the
court, which was delivered by Lord Hewart CJ, his Lordship said (inter alia)
(at 306-307):
A publication made with the clear intention of prejudicing the fair trial of
an issue pending before a Court was obviously a contempt of Court, and
would be punished as such. But where the Court was satisfied that there
was no such intention, and yet the publication was one which might
conceivably prejudice a pending trial, the circumstances of the particular
case must be taken into account. The nature of the proceedings which were
pending, the conduct of the parties, the time, the manner, and the locality
of the publication in relation to the time, the mode, and the locality of the
trial had all to be considered, and the Court must be satisfied that a case
for its arbitrary and summary interference had been made out.
Some of those considerations had been mentioned in the case of R v
Blumenfeld Ex parte Tupper 28 The Times LR 308. There were others
also. The Court must be satisfied that the pending proceeding, the trial of
which it was alleged was being prejudiced, was a genuine proceeding,
brought and intended to be prosecuted to effect its avowed purpose.
Otherwise no attachment would be granted.
The editor of the Daily Mail had contended that the present case was
one in which the writ for libel was not issued by Factor with the genuine
intention of proceeding to trial and clearing his character of the aspersions
cast on it by the article of December 15, 1927, but was issued to enable
him to procure immunity from further attacks while the action was
pending. It appeared from Mr Fish's affidavit that, from March 19, 1926 to
July 24, 1926, the Daily Mail published a series of articles attacking the
applicant under the name of Jacob Factor. The language was
unequivocal. It included such expressions as smooth-tongued thief,
arch-swindler, out-and-out-swindle, fleecing the public, career of
fraud, robbing the unwary, and confidence dodge. Those attacks
ceased only when Factor left the country.
Factor, however, took no proceedings on any of them, defamatory
though all of them undoubtedly were. Nor had he, in the proceedings now

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

65

pending, made any complaint of any of the charges made against him. On
the contrary, in his statement of claim his complaint was most carefully
confined to the allegation that he was carrying on his frauds in conjunction
with Montgomery. In other words, his complaint was not that it was said
of him that he was defrauding people all over Great Britain, but only that
he was doing so in association with Montgomery. The Court found it
impossible to believe that an action so framed could have been launched in
order that a jury might vindicate Factor's character and award damages for
the injury done to it the avowed and legitimate object of an action for
libel.
The court accordingly discharged the rule with costs.
In seeking to support this submission, Mr Littlemore, in addition to directing
attention to the various articles which had appeared in the Star, and Tsakpina,
newspapers, in respect of which no action had apparently been taken on behalf
of the Archbishop, also sought to rely upon what was alleged to be the
extraordinarily dilatory approach to the prosecution of the principal proceedings
which proceedings, so it was submitted, were revived only when it suited
the Archbishop to do so and, as well, upon what, so it was submitted, was
the extraordinary failure of the Archbishop to administer interrogatories for the
purpose of establishing such matters as publication and circulation, and the
failure to seek particulars of the various defences which had been raised to the
principal proceedings.
I am far from persuaded that the principal proceedings are no more than a
stop writ and not intended to be prosecuted to trial. So far as the various
defamatory publications which were relied upon to support this submission are
concerned, it is to be observed, first, that the allegation in the Star appears to
have been withdrawn unreservedly in the following edition of that publication;
and that, when the allegations were republished by Mr Karatzaferas in his radio
programmes, the Archbishop did take proceedings to seek redress. So far as the
allegations in Tsakpina are concerned, I can see no reason why a plaintiff in
proceedings for defamation, in order to avoid the risk of it being said that his
proceedings are in the nature of a stop writ, should be required to bring
proceedings against others who published defamatory material of him, even if
the publisher of that other material is, as Tsakpina appears to have been,
regarded as part of the scandal press, and may not be worth powder and
shot.
I turn then to what is the substantial defence raised by the opponents to the
application, that is, whether it has been established, as a matter of practical
reality, that the articles had a tendency to interfere with the due course of
justice in one or other of the ways to which I have earlier referred in relation to
the principal proceedings.
As I have earlier recorded, in determining the question of practical reality,
regard must be had to the material published, and to the probabilities as at the
date of publication.
In Attorney-General for New South Wales v John Fairfax & Sons Ltd, it was
said that, in considering the probabilities as at the date of publication, it is
legitimate to have regard to (inter alia):
(1) the delay which might occur before any probable trial;
(2) publication of prejudicial material before the date of the charge;

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(3) the effect upon juries of coverage in the mass media of other sensational
events.
In Attorney-General v MGN Ltd, Schiemann LJ, who delivered the judgment
of the Divisional Court which dismissed the application enumerated a
number of principles to be applied, among which principles were the following
(at 460-461):
(7) In making an assessment of whether the publication does create
this substantial risk of that serious effect on the course of justice the
following amongst other matters arise for consideration:
(a) the likelihood of the publication coming to the attention of a
potential juror;
(b) the likely impact of the publication on an ordinary reader at the
time of publication; and
(c) the residual impact of the publication on a notional juror at the
time of trial.
It is this last matter which is crucial.
One must remember that in this, as in any exercise of risk assessment, a
small risk multiplied by a small risk results in an even smaller risk.
(8) In making an assessment of the likelihood of the publication coming
to the attention of a potential juror the court will consider amongst other
matters:
(a) whether the publication circulates in the area from which the
jurors are likely to be drawn; and
(b) how many copies are circulated.
(9) In making an assessment of the likely impact of the publication on
an ordinary reader at the time of publication the court will consider
amongst other matters:
(a) the prominence of the article in the publication; and
(b) the novelty of the content of the article in the context of likely
readers of that publication.
(10) In making an assessment of the residual impact of the publication
on a notional juror at the time of trial the court will consider amongst
other matters:
(a) the length of time between publication and the likely date of
trial;
(b) the focusing effect of listening over a prolonged period to
evidence in a case; and
(c) the likely effect of the judge's directions to a jury.
I am far from being persuaded, to the appropriate standard, that the
publication of either of the articles complained of had, as a matter of practical
reality, a tendency to interfere with the due course of justice in relation to the
principal proceedings in any of the respects submitted.
Notwithstanding the extravagant and emotional language of each of the
articles and notwithstanding the phrase next, we will reveal all the lawsuits
that the Archdiocese has brought against our compatriots for the property of the
Churches everything will be brought out in the open appearing in the first
article, and the phrase he himself should be afraid for his conduct which will
be brought out in the open if we ever come to an open court hearing
appearing in the second article, I am of the view that, looked at objectively
which is the proper test neither of the articles could, at the time of

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

67

publication, properly have been regarded as having, as a matter of practical

reality, a tendency to interfere with the course of justice in relation to the
principal proceedings by subjecting the Archbishop to improper pressure to
discontinue, or to settle, the principal proceedings.
It is sufficient, in this regard, in my view, to record that statements in equally
colourful, and emotive, language and no less critical of the Archbishop, may be
found in each of the articles which is the subject of the principal proceedings
and that the articles in question appear to be no more than part of the
continuing campaign of criticism waged by Mr Skalkos and Foreign Language
Publications against the Archbishop.
Nor am I persuaded that, at the date of publication of the articles, as a matter
of practical reality, persons who might otherwise have been disposed to give
evidence on behalf of the Archbishop in the principal proceeding would, as a
result of reading the articles, have been dissuaded from doing so, or that, as a
matter of practical reality, the content of the articles would have any residual
impact upon a notional juror at the time of trial.
As will be apparent from what I have earlier recorded, there appear to be
long standing divisions within the Greek Orthodox community, which divisions
appear to have led (inter alia) to highly coloured, and very bitter, criticism
directed at the Archbishop and to other members of the Greek Orthodox
hierarchy. Even if one leaves to one side the lurid publications by the scandal
press, the article in The Age of date 16 July 1996 which article, as I have
earlier noted, is said to have been republished in the English language in the
Greek Herald although in far more studied and measured language, indicates
that, even at the time of the publication of the articles in question, there was
current both in the English speaking, and in the Greek speaking, communities a
great deal of discussion of a highly critical nature directed toward the
Archbishop and the hierarchy. This being so, it is, in my view, difficult to see
how either of the articles complained of could, in practical reality, have created
any greater risk of prejudice to the due administration of justice in the principal
proceedings than the other articles which had been published earlier than, or
were published contemporaneously with, the articles complained of.
Nor am I persuaded that, at the date of the publication of the articles
complained of, it could, as a matter of practical reality, have been said that the
matter complained of in those articles would be likely to have had any residual
effect on a notional juror at the time of trial, which trial, it could then
confidently have been said, would have been many, many months in the future.
In this regard, as Wilson J observed in Victoria v Australian Building
Construction Employees' and Builders Labourers' Federation (at 136):
The growth both in range and intensity of mass media coverage in
modern times carries with it a greater liability to transience in its hold on
the public mind. What is news today is no longer news tomorrow;
while, in Duff v The Queen (1979) 39 FLR 315 at 333, Brennan J (as he then
was), McGregor J and Lockhart J said:
The possible effect on jurors of such articles must be assessed in the
light of the times in which we live. We live in an age when television,
motion pictures, radio and newspapers inform us of acts of violence and
other notorious happenings within minutes of their occurrence in remote or
proximate places. Some of the accounts are accurate and fair, others are

68

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[(1997)

not. It is wrong to assume that jurors do not have or will not exercise a
critical judgment of what they see, read and hear in the media.
For these reasons, I conclude that the claimant has failed to establish that the
publication of either of the articles complained of constituted a contempt of
court in the relevant sense.
Before proceeding to record the formal orders which, in the event, I would
propose, I return, but briefly, to the question to which I earlier referred
whether, in a case such as this was, the preferable course was to proceed by
way of substantive summons rather than by notice of motion in the original
proceedings.
In this regard it is to be noted that the Supreme Court Act 1970 as it then was
provided (inter alia) as follows:
48.
(2) There are assigned to the Court of Appeal proceedings in the Court:

(i) for the punishment of contempt of the Court or of any

other court;

(4)This section does not affect:

(a) the powers of the Court in a Division in relation to punishment
for:
(i) contempt in the face of the Court in that Division or in the
hearing of the Court in that Division;
(ii) disobedience to a judgment or order of the Court in that
Division; or
(iii) breach of an undertaking given to the Court in that
Division; or
(b) the powers of a Master in relation to punishment for:
(i) contempt in the face of the Court or in the hearing of the
Court; or
(ii) breach of an undertaking given to the Court, where the
Court is constituted by that Master;

51.(1) Where proceedings are commenced in a Division but are under

this or any other Act or under the rules assigned to the Court of Appeal:
(a) the proceedings shall be for all purposes well commenced on
the date of commencement in the Division, notwithstanding that
the proceedings are assigned to the Court of Appeal;
(b) the Court of Appeal or the Court in the Division in which the
proceedings are pending may, in either case on application by a
party or of its own motion, order that the proceedings be
removed into the Court of Appeal;
(c) upon an order for removal being made under paragraph (b) the
proceedings may be continued and disposed of in the Court of
Appeal; and
(d) subject to any order under paragraph (b) the proceedings may be
continued and disposed of in a Division.
Despite what I would have thought was the then clear intention of the
legislature that proceedings charging contempts of court of the type now under
consideration should be assigned to, and dealt with in, the Court of Appeal (as,

42 NSWLR 22]

HARKIANAKIS v SKALKOS (Powell JA)

69

in fact, occurred during the period following the creation of the Court of
Appeal and prior to the coming into effect of the provisions of the Supreme
Court Act 1970 (see, eg, Re Barnes (1968) 87 WN (Pt 1) 479; Re Goldman
(1968) 89 WN (Pt 1) 175, per Street J; 89 WN (Pt 1) 182; [1968] 3 NSWR
325)), Pt 55, r 6 of the Supreme Court Rules, which came into force at the same
time as did the provisions of the Supreme Court Act 1970, provides:
6.(1) Where contempt is committed in connection with proceedings in
the Court, an application for punishment for contempt must be made by
motion on notice in the proceedings, but, if separate proceedings for
punishment of the contempt are commenced, the proceedings so
commenced may be continued unless the Court otherwise orders.
(2) Where contempt is committed, but not in connection with
proceedings in the Court, proceedings for punishment of the contempt
must be commenced by summons, but, if an application for punishment of
the contempt is made by motion on notice in any proceedings, the
application may be heard and disposed of in the latter proceedings, unless
the Court otherwise orders.
Although the language of r 6(1) at first sight appears apt to permit an
application for punishment for contempt of the type now under consideration to
be made by motion on notice in the principal proceedings, since the alleged
contempt could be said to be in connection with (the principal) proceedings,
it seems to me that the better view is that the types of contempt to which r 6(1)
is directed are those which were referred to in s 48(4) of the Supreme Court Act
1970, it following that proceedings seeking to punish for a contempt of the type
now under consideration ought to be brought by substantive summons in the
Court of Appeal even though it might be said that the contempt charged is in
connection with (the principal) proceedings this would appear to accord
with the views expressed by Kirby P (as he then was) in European Asian Bank
AG v Wentworth (1986) 5 NSWLR 445 at 452-453: see also, now, Abram v
National Australia Bank Ltd (Court of Appeal, 1 May 1997, unreported). In the
present case, however, the matter is of no great consequence, since it would
appear that, although the application was initiated by motion on notice in the
principal proceedings, it was later removed into this Court pursuant to the
provisions of s 51(1)(b) of the Supreme Court Act 1970.
For the reasons which I have earlier recorded, the orders which I would
propose are:
1. ORDER that the motion be dismissed.
2. ORDER that the claimant pay the opponents' costs of the motion.
BEAZLEY JA. I agree with Mason P.
Application dismissed in part.
(By majority) Declaration that opponents
guilty of contempt in relation to one
published article.
Solicitors for the claimant: Nicholas G Pappas & Co.
Solicitors for the opponent: Tony Lazaropoulos (Corporate Solicitor, Foreign
Language Publications Pty Ltd).

B A GRAY,

Barrister.