Adjudication No. 19 (August 1977) [1977] APC 14

ADJUDICATION No. 19 (August 1977)

Mr. David Combe, the National Secretary of the Australian Labor Party, has complained to the Press Council that certain evidence given by him before the Broadcasting Tribunal inquiry into self-regulation was misreported and given a misleading headline in the issue of The Australian of May 28, 1977.

It appears that Mr. Combe is the plaintiff and the Company which publishes The Australian is the defendant in three actions pending in the Supreme Court of the Australian Capital Territory. The paper has objected to the Press Council's dealing with the complaint unless Mr. Combe first executes a release of all rights of action in respect of the article complained of, or in respect of the publication of the Council's adjudication or of anything occurring during or arising out of the Council's investigation of the complaint, and also a covenant not to use any of these things in the pending proceedings or any subsequent proceedings which he may bring against the company or any of its related companies or the servants or agents of any of them.

Mr. Combe has refused to execute such a document and has given the Council to understand that even if he were to agree to waive any right of action he may have in respect of the article he complained of he would not waive the other rights which the proposed release would forego. Mr. Combe is perfectly entitled to take this course, but it raises for the Council an important question.

The Council has repeatedly recognised the reasonableness of a paper's insisting that a complaint should not be proceeded with while the matter complained of is, or while there is a reasonable possibility of its becoming, the subject of proceedings in the courts. This is partly because it would obviously be wrong for the Council to say or do anything that might prejudice the court's determination of questions of legal right, partly because of the unreasonableness of allowing a complainant a trial run as a preliminary to a court hearing, and partly because a newspaper could not be expected to co-operate fully in the investigation of a complaint while hampered by anxiety lest the case it may wish to present in court might be prejudiced.

For these reasons the Council in such cases follows the course of offering the complainant a choice. He may obviate these undesirable results by waiving his legal rights or, if he prefers, he may retain those rights and submit to the postponement of the Council's investigation of the complaint, at least until the legal rights have been exhausted.

The novel feature in the present case is that the rights in question are not only existing rights of action but also future rights to use material, if it comes into existence, which may assist the complainant on particular issues in either pending or future litigation.

The reasons which guide the Council in the more usual type of cases apply with equal force in this. While ready at all times to insist on proper standards of journalism and to do so without fear or favour, it is of opinion that the necessity of fairness to both sides requires that whenever it can reasonably be foreseen that an investigation may give one party an advantage over the other for litigation in the courts, and the party who stands to gain the advantage will not forego it by an appropriate waiver, the investigation ought not to proceed.

Mr. Combe must therefore be allowed his choice, either to continue to reserve his present and future legal rights or, by executing an appropriate waiver, to enable the Council's investigation to proceed. Unless he elects in favour of a waiver the complaint must be adjourned indefinitely. The Council is prepared to consider any submissions Mr. Combe may wish to make as to the terms of an appropriate waiver.