The Federal Court has rejected a legal bid by a group of pro-Israel letter-writers to have The Sydney Morning Herald and The Age punished for contempt of court for allegedly breaching a suppression order protecting the identity of people who complained to the ABC about Antoinette Lattouf.
On February 3, during Lattouf’s 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.
Antoinette Lattouf outside the Federal Court in Sydney last month.Credit: Oscar Colman
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”.
Lawyers acting for people whose identities are said to be protected by the suppression order in the Lattouf case 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.
The four articles at the centre of the dispute were published last year, before the suppression order was made.
Rangiah noted in a decision on Friday that “[the] articles remained available online even after the order was made” but were amended in March this year “to remove the names of the relevant persons without any admission that the publishers were obliged to do so”.
At a preliminary hearing in April, 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” and would have to commence contempt proceedings if Rangiah made the order.
Rangiah dismissed the application on Friday and ordered the applicants to pay half of the media outlets’ legal costs.
“There would be considerable resources expended by the Registrar and exposure to an order for costs in prosecuting a proceeding of uncertain strength,” he said in his judgment.
Antoinette Lattouf addresses the media outside Federal Court in February.Credit: Janie Barrett
However, he said that it would “still be open” to the group of letter-writers “to themselves commence a proceeding for contempt” under a different part of the Federal Court Rules.
He said he considered they were “‘the ones most naturally placed’ to conduct proceedings for contempt of court”.
Rangiah said he was “satisfied that all of the [media parties] … have established a reasonably arguable basis for defending the allegations of contempt”.
The media parties had “demonstrated a reasonably arguable case” that the suppression order only protected the nine letter-writers who had originally sought the order “and only protected information derived from material on the court file or from the proceedings”, the judge said.
“Further, they have a reasonably arguable case, that in the absence of being notified of the identities of the relevant nine [letter-writers] … they could not know what information they were prohibited from disclosing.”
In considering costs, Rangiah said the “abject failure” of the media parties to respond to correspondence from lawyers for the letter-writers was “discourteous and unhelpful”.
“They have not provided any explanation for their conduct. Moreover, it is possible that a response explaining why they did not consider the order to have been breached might have avoided the present application being made.”
However, he also said the letter-writers had “no reasonable basis to bring the proceeding” against the two in-house lawyers, and “no reasonable case” relating to an article that was not published by the Herald or The Age.
“Further, even after they became aware of the … [media outlets’] arguments they continued with the … application, taking the risk that it may be unsuccessful,” he said.
In a landmark decision last month, Rangiah ordered the ABC to pay Lattouf $70,000 in compensation after finding it terminated her employment in 2023 to “appease … pro-Israel lobbyists” because “she held political opinions opposing the Israeli military campaign in Gaza”.
A separate hearing on pecuniary penalties, which would be paid to Lattouf, will be held at a later date.
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