A group of pro-Israel letter-writers who complained to the ABC about Antoinette Lattouf before she was removed from Sydney radio are pushing for contempt proceedings to be initiated against The Sydney Morning Herald and The Age over an alleged breach of a suppression order.
On February 3, during Lattouf’s Federal Court unlawful termination suit against the ABC, Justice Darryl Rangiah made a 10-year suppression order over the “names, identities, contact details and addresses of persons who made complaints” about Lattouf’s employment by the ABC.
Former ABC radio presenter Antoinette Lattouf outside the Federal Court in February.Credit: Rhett Wyman
The order was made “on the ground that it is necessary to protect the safety of persons”.
Rangiah said at the time that he was satisfied there was “a substantial risk” the individuals “will face, at least, vilification and harassment if their identities and contact details were available to the public”. He has reserved his decision in the Lattouf case.
While the suppression order was sought by nine individuals, the order ultimately granted by Rangiah was not phrased as protecting the identity of only those nine people.
Lawyers acting for people whose identities are said to be protected by the suppression order allege Herald editor Bevan Shields and The Age editor Patrick Elligett, as well as two in-house lawyers, two reporters and the publishing companies, breached the order.
At a preliminary hearing in the Federal Court on Wednesday, Sue Chrysanthou, SC, acting for the group, said: “Only one order is sought, and that is a referral under … the Federal Court Rules to the principal registrar to consider whether proceedings should be instituted for the punishment of contempt.”
But Tom Blackburn, SC, acting for the mastheads, said the registrar would have no “independent discretion not to commence contempt proceedings” if Rangiah made that order, because he would be directing the registrar to do so.
Blackburn said the allegations were of the “utmost seriousness”, and it was a particularly “grave and serious thing” to allege that two lawyers, who are officers of the court, were involved in an alleged contempt.
One of the lawyers “was on leave at the time all this happened”, Blackburn said.
“It’s a procedure which is criminal in nature,” he said. “It’s been said [in previous cases] that … there cannot be a successful prosecution unless the contempts are wilful and contumacious.
“It doesn’t seem to us … that they will come anywhere near demonstrating that these alleged contempts were wilful or contumacious, but we need to know [the precise allegations].
“Let me say this: if the view is taken, when we know exactly what these contempts are supposed to be, that apologies should be made, then those apologies will be made. But it’s simply too early for us to determine that without proper information about the charges.”
Blackburn said the first matter the court would need to consider in the application was “whether the respondents’ conduct could constitute a contempt of court, that is, whether it could constitute a criminal offence”.
Chrysanthou said her instructing solicitors had sent “over half a dozen letters” to the media outlets alleging contraventions of the suppression order, but had received “no substantive response”.
“Regrettably, from my clients’ perspective, we had no choice but to bring this application,” she said.
“They’ve accused us of bringing a vexatious application, they have denied the contraventions ... or the alleged contempts. They have generally behaved in an unapologetic and unrepentant manner.”
Blackburn said: “My learned friend says we’ve shown no remorse, or we haven’t apologised.
“One of the reasons, if it’s necessary to do that, [that] we haven’t done that [is] because we don’t know with precision what these criminal charges are that are made against us.
“After we know, that will be the time to consider our position and whether any apology should be made to the court.”
He said the media outlets had requested “very simple and basic particulars” about the allegations “and we should have those particulars as a matter of fairness”.
Blackburn said Rangiah had made the suppression order “in respect of … nine applicants whose names we don’t know”. Chrysanthou said the suppression order ultimately made was “not specific to my clients”.
“That order does not require us to establish a specific person [was identified],” she said. “It requires us to establish on the application that persons that fall within that class are identified.”
Rangiah told Chrysanthou: “I think there’s a benefit for all the parties in you articulating in writing exactly what are the allegations that you make.
“Ultimately, I’m going to have to decide whether or not to direct the registrar to start a proceeding for punishment for the alleged contempt. In order to do that, I’ll have to understand what the alleged contempt is.”
The application will be heard by Rangiah on June 19.