Nine claims pro-Israel group ‘took advantage’ of alleged Antoinette Lattouf v ABC suppression breach
Nine has denied breaching a court suppression order protecting the identities of lobbyists who successfully pushed for Antoinette Lattouf’s unlawful sacking.
Lawyers for the Nine newspapers have accused pro-Israel lobbyists who successfully campaigned for Antoinette Lattouf’s unlawful dismissal of “taking advantage” of a court order suppressing their identities to threaten contempt proceedings against the mastheads.
The Federal Court on Monday heard the final arguments in a legal showdown between Nine and the lobby group, which had spilt out of Lattouf’s successful case against the ABC. The people making the complaint have argued three articles in The Age and Sydney Morning Herald from January 16, 2024, January 22, 2024 and February 3, 2025 unfairly identified them in breach of orders, and that Nine ought to be referred to the registrar for a contempt prosecution.
Herald editor Bevan Shields, his counterpart at The Age, Patrick Elligett, reporters Michael Bachelard and Calum Jaspan, and lawyers from Nine’s in-house counsel at MinterEllison are personally cited in the application for criminal proceedings.
High-profile barrister Sue Chrysanthou SC argued on behalf of the lobbyists that Nine had been non-compliant since the orders were made on February 3 and had breached it even in reporting on it.
Nine’s barrister, Tom Blackburn SC, said the original order should only be interpreted as applying to the nine people making the complaint represented by Ms Chrysanthou and covering material specifically referencing the court proceedings, or it would hazard being too broad.
Under those terms, he said, his clients did not know the identities of the lobbyists themselves and could not be contemptuous of any order they were ignorant of.
“It couldn’t have been wilful and contumacious, because we didn’t know who the people were. The mere fact (is) that we knew that an order was in existence, but we didn’t know who the people protected were,” Mr Blackburn told the court.
“There has been no breach of the order at all, so the application fails at the very first hurdle.”
He said the lobbyists had unfairly leveraged the order to tear down articles written more than a year before court proceedings.
“Someone seems to have thought (they could) take advantage of the terms of this order to make it extend to any publication that has absolutely nothing to do with these proceedings,” Mr Blackburn said.
“Advantage has been taken … (of) this order to seek relief or remedy, which they didn’t even seek in the first place.”
For the Director of Public Prosecutions to take up contempt proceedings against Nine was therefore a waste of court resources, Mr Blackburn argued.
“Not only are (the lobbyists) asking … to subcontract the work out to the registrar by this application, but they want to present the registrar with a case that is very weak, where the registrar is going to have to prove a number of things to succeed and, on the evidence before the court, that’s going to be a hopeless task,” he said.
Ms Chrysanthou said Nine could not plead ignorance about the identity of her clients because the journalists and editors had never said for themselves they were unaware and had not asked for their identities in order to properly amend their reportage.
“(MinterEllison partner Peter) Bartlett has not said in his affidavit, ‘my clients had no idea who these orders protected’. Why hasn’t he said that, if that were the case?” Mr Chrysanthou asked.
“They received seven letters and did not once … write back and say ‘thank you for your letter … we don’t know who your clients are, so we’re not quite sure how you say we’re breaching the order. Can you explain it to us, or can you tell us who your clients are on a confidential basis’.
“This is an ex post facto (after the fact) reconstruction by lawyers to try and get at clients who have not put on evidence to this effect as to what their state of mind was.”
Ms Chrysanthou told the court Jaspan – who was present in court in Sydney when the order was made – had alerted readers to his previous articles identifying her clients while reporting on the very order prohibiting the publication of those details on the first day of Lattouf’s trial.
She alleged that when her instructing solicitor, Rebekah Giles, contacted Jaspan to complain, the story was allegedly edited to refer even more explicitly to the original reports before the article was eventually updated later in the day to remove the reference.
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