Bell v Stewart [1920] HCA 68;

Bell v Stewart [1920] HCA 68; - HCA 1920 case summary — Zoe

[8]

Coming, therefore, to the substance of the matter, the question is whether the publication contravenes the provisions of sec. 83. The section is, so far as material, in the following words: "No person shall wilfully ... by writing or speech use words calculated ... to bring the Court into disrepute, or be guilty in any manner of any wilful contempt of the Court." For the appellant it was urged that in order to secure a conviction it must be shown that he was aware that the newspaper which he published contained the words complained of. The argument is, of course, based upon the use of the words "wilfully" and "wilful" in sec. 83, but it is not necessary to consider the state of Bell's mind in this particular case. The main argument was that the words published could not, in the mind of any reasonable man, bring the Court into disrepute, or, to use synonyms, disesteem, discredit, disgrace or dishonour, or be regarded as a contempt of the Court. And this argument is right. The section is not based on "any exaggerated notion of the dignity of individuals," nor is it intended to stifle criticism; but it is designed for the protection of the public, and to ensure that the due administration of the arbitration law shall not be obstructed or interfered with, and that proper decency and decorum shall be preserved in the Court (cf. In re Johnson[2], per Bowen L.J.; Hunt v. Clarke[3]; R. v. Payne[4]; Bahama Islands' Case[5]). It is ridiculous to suppose that the arbitration law was, or could, in the hands of the President, be, in any way obstructed or interfered with by the published words. So the case must rest upon the words being calculated to lessen or discredit the authority or prestige of the Court in the minds of reasonable people. No reasonable man could attribute any charge of "false play" or injustice to the learned President on the words used. The words assume, rightly or wrongly, that "slowing down" is notoriously practised in industry, and satirical comments are then made upon the refusal of judicial officers, and in particular the learned President of the Arbitration Court, following the accepted practice of all British Courts, to assume any facts of their own personal knowledge, with some special exceptions, without due proof. It is difficult indeed to believe that any such comment would sap or undermine the authority of any Court in the mind of any reasonable person. Indeed, amongst reasoning men, we believe that the practice of the Court would rather be supported and seen to be well calculated to ensure a proper and just administration of the law free from the prejudices or want of knowledge of any particular officer.

[14]

But, in dealing with the second charge, we feel compelled to approach the matter differently, because it appears to us to involve the general question - so important to the administration of justice - as to how far it is permissible to comment publicly on pending litigation. We are of opinion that this part of the case turns both on the word "wilful" as to its meaning and legal effect in the first place, and as to how far the evidence supports it in the second, and also on what is the proper test to guide the Court in determining whether published references to pending litigation constitute a contempt or not. In order to make our meaning clear as to the first point, it is necessary to observe how the word "wilfully" and its corresponding adjective "wilful" dominate the section. The whole of the subject matter dealt with by the section is what is ordinarily understood as "contempt." and sub-sec. 2 preserves what the Legislature intended to be the common law power of the "Court" as to contempt, that is, contempt simpliciter, not necessarily "wilful contempt." But in creating a new statutory offence and conferring upon Courts of Petty Sessions and similar tribunals jurisdiction to punish it, the Legislature specifically insisted that the offence must be "wilful." A mere technical contempt which the new Court of Record - as it was understood to be - administered by a High Court Justice, whose decisions were to be without appeal, was left to deal with, was not treated as an offence to be decided and punished by Courts of Petty Sessions. It is clear to our minds that the word "wilfully" does more than negative "accidentally" or "unconsciously." The Legislature was, of course, not simply excluding acts done in sleep or hypnosis or under compulsion. To speak of a person "wilfully insulting or disturbing the Court" means that he intended to insult or disturb the Court, and not in the sense that his volition impelled the word or the act, but that his purpose was that his word or his act should have the effect of conveying the insult or causing the disturbance. And similarly with all the matters governed by the word "wilfully." Then comes that portion of the section referring to contempt. As to that, the section reads thus: "No person shall ... be guilty in any manner of any wilful contempt of the Court."

[18]

Many cases were cited to us, but several were irrelevant because they related only to the other species of contempt or to the circumstances in which the Court would exercise its power. The case of Hunt v. Clarke[15] is the leading case of the law as to this branch of contempt. There, while a civil action for misrepresentation as to companies was pending and the trial approaching, a newspaper article appeared. A motion was made by one of the parties to commit the publisher for contempt. The primary Court (Mathew and Grantham JJ.) dismissed the motion on the ground that, although the article made some observations adverse to the party moving, there was no contempt in the article inasmuch as it was not likely to influence the Judge or jury. There was an appeal, which came before Cotton, Fry and Lopes L.JJ. They dismissed the appeal, but on a different ground. They held that the article was technically a contempt because it had a tendency to prejudice the party, whether in the actual circumstances it was likely to do so or not. But as in the circumstances they also thought it was "not likely to cause any substantial prejudice to the party in the conduct of the action or to the due administration of justice"[16], they dismissed the appeal. After pointing out that these were two distinct questions, Cotton L.J. said[17]: "In my opinion, it does technically become a contempt if pending a cause, or before a cause even has begun, any observations are made or published to the world which tend in any way to prejudice the parties in the case, and it may be that in such a case whoever is guilty of such an act would be liable to be committed." That established the technical offence, and gave the Court a right to interfere if it thought fit. But then came the question whether the party had any substantial right to invoke the Court's interference in his own interests. As to that, the Lord Justice said: "I express my opinion that if a thing is done wilfully which really will prejudice the parties to the cause before it comes on, I should not hesitate to commit to prison any one who so offended, but, of course, that jurisdiction by the Court is one which is only to be exercised in extreme cases." Where the act is wilful and the party clearly will be prejudiced, that is the extreme case. But Cotton L.J. also recognized in the following observations the cases of an intermediate character. He said: "No doubt there may very well be observations made of such a character as that not only would they be technically a contempt, but such as that the Court, in order to secure causes being properly tried before it, ought to interfere." Observe the word "secure." He continues: - "If any one discusses in a paper the rights of a case or the evidence to be given before the case comes on, that, in my opinion, would be a very serious attempt to interfere with the proper administration of justice. It is not necessary that the Court should come to the conclusion that a Judge or a jury will be prejudiced, but if it is calculated to prejudice the proper trial of a cause, that is a contempt, and would be met with the necessary punishment in order to restrain such conduct." That is, if, besides having the "tendency" which constitutes it a technical contempt, the publication is of such a character as makes it "calculated," that is, "likely," to prejudice the defendant, the Court does interfere, and according to the circumstances awards a remedy. It may be observed in passing that his view is followed in R. v. Payne[18] and Higgins v. Richards[19]. Then Cotton L.J. proceeded to apply these principles he had stated to the case before him in these words[20]: "In my opinion, although as I say there is here that which is technically a contempt, and may be such a contempt as to be of a serious nature, I cannot think there is any such interference or any such fear of any such interference with the due conduct of this action, or any such prejudice to the defendant who is applying here, as to justify the Court in interfering by this summary and arbitrary process." The other Lords Justices delivered opinions in accordance. In R. v. Davies[21] Wills J. (for the Court) said, quoting from a previous case: "The reason why the publication of articles like those with which we have to deal" (i.e., comments on pending cases) "is treated as a contempt of Court is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists - namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it."

[23]

Now, to apply the law to the facts of this case in order to ascertain whether there was the objectionable tendency in the article complained of: - The article complained of was published on 16th April 1920. An arbitration had been for some days proceeding, and was still proceeding, before the Court of Conciliation and Arbitration before Higgins J. in which the Australian Timber Workers' Association was claiming from the employers (inter alia) that "the week's work shall consist of forty-four hours for all wage-earners and pieceworkers." On 15th April a discussion took place in Court as to whether in fact there was any "slowing down." So far as one legal representative of the respondents was concerned, he, for certain reasons, abandoned the suggestion that there was "slowing down." But the question still remained, and evidence was taken on the subject, and, to put it shortly, that question was still one of the matters, and apparently a very important matter, to be considered and dealt with by the Court in fixing the terms of the award as to the number of hours of work. There is no room for debate as to the duty of the arbitrator under the Act. He is not bound to take strictly legal evidence: he may inform his mind as he thinks best, by witnesses on oath or in any other way he considers reliable and informative (sec. 25). His objective is to make an award just to both parties and the community. Whether the question of "slowing down" was insisted on by a party or not, if the Court thought it existed it could not exclude the matter from its consideration. That question, therefore, was still clearly one for his determination, a matter to be considered, possibly proved or disproved by witnesses, and decided, just as much as the guilt of a prisoner on trial or the rights of a plaintiff or defendant in an ordinary pending litigation. In one respect it concerned the community much more than any ordinary individual proceeding could concern it. It directly concerned from their individual standpoint the interests of a large number of the actual litigants in different States, and it concerned - as all such cases must concern - the community at large, whose interest it is to have industrial services continue uninterrupted but on fair terms. The Judge of the arbitration tribunal cannot have recourse to any fixed standards to which he can cling and justify his action as other Judges can: it is his discretion and his conscience which must guide him, and these are not examinable, nor are his decisions open to appeal.

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Bell v Stewart [1920] HCA 68; (1920) 28 CLR 419 (5 November 1920)

Parties

Legislation Cited (1)

Cases Cited (1)