Gallagher, Norman Leslie v Durack, Peter [1982] FCA 280

NORMAN LESLIE GALLAGHER v. THE HONOURABLE PETER DURACK

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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

JUDGES MAKING ORDER: Bowen C.J., Fitzgerald and Jenkinson JJ.

2. The stay of execution ordered by Mr. Justice Northrop on 5 November 1982 be lifted.

3. The direction that the warrant for the apprehension and committal of Norman Leslie Gallagher should lie in the Registry shall cease to have effect.

4. Norman Leslie Gallagher pay to the Attorney-General his costs of the appeal.

5. The orders specified in paragraphs 2 and 3 of this order shall take effect at 5 p.m. on Friday,

} ) VICTORIA DISTRICT REGISTRY ) No. V43 of 1982. } )

\ ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NORMAN LESLIE GALLAGHER Appellant AND: THE HONOURABLE PETER DURACK Respondent CORAM : Bowen C.J., Fitzgerald and Jenkinson JJ.

BOWEN C.d. and FITZGERALD J. Mr. Norman Leslie Gallagher has

appealed to this Court against a decision of Northrop J. who, on

18 October 1982, adjudged Mr. Gallagher guilty of contempt of

this Court and, on 1 November 1982, sentenced him to three months

imprisonment. Mr. Gallagher is the Federal Secretary of the

Australian Building Construction Employees' and Builders

Labourers' Federation ("the Federation"), an organisation of employees registered under the Conciliation and Arbitration Act 1904.

It is a matter of public record that the Commonwealth Government appointed a Royal Commission to inquire into aspects of the conduct of the Federation its members and officers

including Mr. Gallagher and that, on 25 September 1981 the then

Commonwealth Minister of State for Industrial Relations commenced

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proceedings in this Court for an Order directing that the Federation's registration be cancelled pursuant to s.143 of that Act. -

On 1 October 1981 the Federation filed in the Federal

Court a notice of motion seeking orders that the Commonwealth the State of Victoria and Mr. Winneke should be restrained from proceeding with the inquiry. The motion, which came on before Northrop J. was supported on the basis that its continuance with attendant publicity would interfere with the fair hearing of the

deregistration proceedings and would constitute a contempt of

court. Northrop J. dismissed the motion. An appeal was brought to the Fuil Court which on 27 October 1981 allowed the appeal and ordered that Mr. Winneke be restrained from conducting the appeal in public. An appeal was heard by the High Court on 1 and 2 December 1981. On 11 May 1982 the High Court gave judgment reversing the decision of the Full Court.

Not long after the motion to restrain the Commission was before the Full Court proceedings for contempt were brought by the Federation against two newspapers. Northrop J. heard the

matter on 3 and 4 December 1981. He dismissed the proceedings.

Australia made certain statements during the course of an

inspection of the Loy Yang Power Station project which was in the

course of construction in the La Trobe Valley in Victoria. The

Federation sought an order, inter alia, that the Prime Minister

be punished for contempt in connection with the deregistration

proceedings in respect of the statements which he made. That

application was dismissed by Northrop J. on 6 April 1982.

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Further events between 5 April and 21 April 1982 led to

further contempt charges, this time brought by the then

Commonwealth Minister of State for Industrial Relations against

the Federation, Mr. Gallagher and another official of the Federation. The hearing of those charges by Keely J. concluded on 3 May 1982. On 11 May 1982 his Honour adjudged that all three

charged were guilty of contempt of court. On 18 May 1982 he

imposed penalties including a penalty on Mr. Gallagher of two months' imprisonment. A stay was granted pending appeal.

On the same day, 18 May 1982, a substantial number of workers marched off building construction sites in Melbourne, Sydney, the Gold Coast and Perth. In Melbourne, a substantial number of workers marched to the office of the Master Builders' Association of Victoria and a number attempted to break a police line preventing unauthorised entry into those offices.

On 21 July 1982, a Full Court of this Court unanimously dismissed the appeal by the Federation. On the same day, the Full Court, by a majority (Evatt and Deane JJ., Smithers J.

dissenting), allowed the appeals by Mr. Gallagher and the other official of the Federation. Keely J's. finding that Mr. Gallagher was guilty of contempt of court was based upon a conclusion that Mr. Gallagher had attempted to influence certain of the applicants for deregistration to discontinue and/or to dissuade certain witnesses from giving evidence unfavourable to the Federation in the deregistration proceedings. The majority

of the Full Court did not hold that Mr. Gallagher had not

committed contempt. They held no more than that he was not

sufficiently clearly charged with the conduct which had been held by Keely J. to constitute contempt. As they themselves said, the point, in the circumstances, might "be a technical one with little to recommend it insofar as the general merits are concerned". However, they considered that a plain and distinct statement of the charge was a procedural safeguard which the law

required to be observed in such proceedings. In the result, Mr.

j Gallagher was acquitted. Following the judgment of the Full court a number of

journalists and reporters from newspapers and the electronic media, together with television cameramen and other persons totalling in all about twenty, assembled outside the office of the Federation at 11 Lygon Street, Carlton. They were seeking an interview with Mr. Gallagher in respect of the judgment of the Full Court. At about 1:00 p.m. on 21 July 1982, about three hours after the judgment of the Full Court was delivered, Mr. Gallagher, accompanied by other men, came out of the office of the Federation and on to the footpath in Lygon Street outside the office. Mr. Gallagher held a bundle of documents comprising copies of a resolution passed by the Federal Management Committee of the Federation which he later distributed.

The resolution was set out on a document containing the letterhead of the Federation and was as follows:-

"RESOLUTION OF FEDERAL MANAGEMENT COMMITTEE - 21ST JULY, i982.

The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.

Sam SISSIES BE AREF Te TNL ene TR ie PE A a, Be Se ai kee OD

Today 1s our members' day. Once again the unity between rank and file and officials and preparedness to engage in class struggle has won the day.

As to the fine imposed on the Federation, we maintain

our stand that Criminal Courts should not interfere in industrial disputes. This is a cardinal rule of the

union movement. We cannot justify the uSe of our members' funds for the payment of such fines. However,

as previously announced, we have launched a _ public appeal to raise funds to assist the Federation this

time. We are able to say that we have received a number of substantial donations to that appeal fund, the total of which exceeds $15,000.

Mr. Gallagher consented to be interviewed and to answer

questions. The interview was recorded on video tape. In

addition, at least one journalist took notes of what was said.

The interview came to an end and Mr. Gallagher distributed copies

of the Federation's resolution. A number of those present left, but at the request of others Mr. Gallagher consented to answer further questions, at least a number of which were substantially

similar to those previously asked. There is no record of all of

The questions asked and the answers given in the initial

interview are set out as follows in the judgment of Northrop J.:-

"Reporter: "Mr. Gallagher, how do you feel about getting acquitted by the Courts?' Gallagher: "I think it's a great victory for the . members of the Federation'. Reporter: 'Do you feel personally happy about it?' .

'No, but I think you have all got an idea who they are'.

'No, I don't think he'd have enough money....He's going bad!'

against companies that are involved in the deregistration?'

'Do you regret what you did in the first Place in imposing those bans?'

The questions asked, or in some cases, the substance of

Federation's resolution are also set out in the terms in which

'Mr. Gallagher, what is your reaction (or response) to the Court's decision?'

'I'm very happy to the rank and file of the union who has shown such fine support

for the officials of the union and I believe that by their actions in demonstrating in walking off jobs...I believe that that has been the main reason for the court changing its mind'.

'Do you intend to pay the fine that's still outstanding?'

'The union does not intend to pay the fines out of its own funds. We've set up a public appeal in which we've already

received over $15,000 and the fines will be paid out of that fund. I want to stress once again it will not come out of union funds nor will any union money be used to pay it'.

'Have you said who actually contributed that money?'

'No, but I think you know who would contribute to such a fund'.

'Employers who don't want further industrial reaction perhaps'.

'Well, I don't think any employer in this industry wants to have a fight with this union at the present time. There's too many got problems with high interest

rates, liquidity problems and there's no doubt that they want an easy way out'.

'The court has made it clear that the union itself should pay the fines out of

its own funds. Do you think this move you're making will jeopardise the...that there could be further action against you because of this?'

'No, what we've said is that, we will be using the money out of the public appeal

'The Federal committee of management will consider that later on. It'll be a few

(Question as to how the union would face deregistration).

'It's looking sicker and sicker every day...-it's looking more sicker than

Malcolm Fraser's chances in the next Federal election. Peacock's gone,

Viner's gone, and I'm still here. The message 1s getting back to Macphee, that

to continue deregistration will only leave major problems in the industry they

Four big major contractors are pulling out of deregistration. No doubt people

criminal charges as a result of the Royal Commission) .

"I don't want to discuss it. It'll fall on its face just like this has'.

(Question as to how the membership had reacted to the Federal court's decision).

Gallagher: 'A lot of jobs have gone home in protest over the fine. Dozens and dozens have

Gallagher: 'I believe you've still got a long way to go before I say you've got good manners

but you are improving...I have seen signs of it today'."

Commonwealth gave notice that he would move the Court that Mr.

Gallagher be punished for the contempt of court described in the

statement of charge filed with the Court. The statement of

charge, as amended pursuant to leave granted, was as follows:-

"1, The Respondent, Norman Leslie Gallagher, is charged

with contempt of the Federal Court of Australia in that he on 21 July 1982 outside 11 Lygon Street,

Carlton, after his appeal against his conviction and sentence to 2 months' imprisonment by the Federal Court of Australia had been allowed by a Full Court of the Federal Court of Australia on that day, spoke and published to a number of television reporters, camera operators, journalists

and other persons the words attributed to him in the following passages, namely:-

Reporter: Mr. Gallagher, how do you feel about getting acquitted by the Courts?

Gallagher: I think its a great victory for the members of the Federation (meaning

thereby the Australian Building Construction Employees and Builders

Gallagher: Well put it this way I had no doubt that the membership would defend the officials of this union. They

showed their...their position when the sentence was announced, that a

lot of employers in this industry couldn't afford a struggle at the present time because of high interest rates and they knew that if

there was a dispute with the union that a lot of them'd go out backwards.

Reporter: Mr. Gallagher, what is your reaction (or response) to the Court's decision?

of the union who has shown such fine Support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs...I believe that that has

been the main reason for the court changing its mind.

The said words being intended by him to, or having the tendency to, attribute improper motives to the Court and Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, consclentiousness and fitness for office, and to cause a lowering of confidence and respect

on the part of the public and litigants in it and them, and thereby to scandalise the Court.

2. The said Respondent is further charged with contempt of the Federal Court of Australia in that

"in speaking and publishing the words attributed to : him in the passages set out in the first charge, he

did so knowing intending or believing that they would be republished to members of the public by

means of television, and was thereby a party to the republication of the said words:

'I'm very happy to the rank and file of the union who has shown such fine support for the

officials of the union and I believe that by their actions in demonstrating in walking off

jobs...I believe that that has been the main reason for the court changing its mind.'

which occurred by means of their being televised from television station ABV-2 on 21 July 1982, such .

words being intended by him to, or having the tendency to, attribute improper motives to the

Court and Judges who comprised it, to excite misgivings as to their integrity, impartiality,

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courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect

on the part of the public and litigants in it and them, and thereby to scandalise the Court.

3. The said Respondent is further charged with contempt of the Federal Court of Australia in that in speaking and publishing the words set out in the first charge, he did so knowing intending or believing that they would be republished to members of the public in a newspaper, and was thereby a party to the republication of the said words by means of a summary thereof which occurred when the Passage set out hereunder was published in the issue of 'The Age' newspaper of 22 July 1982, such words being intended by him to, or having the tendency to, attribute improper motives to the court and Judges who comprised it, to excite - misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scandalise the Court.

; 'It (meaning the allowing of the said appeal) was a great victory for members of the Union (meaning thereby the Australian Building Construction Employees' and Builders Labourers' Federation).

They showed willingness to demonstrate and walk off jobs when the sentence was announced. This is the main reason for the Court's change of mind. Employers don't want a fight with the union at this stage. With interest rates as high as they are, no one can afford a big dispute'.

4. The said Respondent is further charged with contempt of the Federal Court of Australia in that

he on the occasion referred to in the first charge distributed to those persons present a document (the resolution of the Federal Committee of Management of the Federation), the words thereof being intended by him to, or having the tendenc

Judges who comprised it, to excite misgivings as to their integrity, impartiality, courage, conscientiousness and fitness for office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scendalise the Court, and also that

in so doing, he intended or believed that, the contents of the said document would be republished

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to members of the public in newspapers, or by television, or believed that it was likely that they would be so republished". No charge was brought against the Australian Broadcasting Commission or the publisher of the 'Age' newspaper.

Northrop J. held that the first two answers made by Mr.

Gallagher which are set out in the first charge did not

constitute contempt. He held further that, while Mr. Gallagher

gave his answers with the intention and knowledge that they or some of them would be published in newspapers or on radio or television, he was not guilty of separate contempts in terms of

charges 2 and 3. Further, he held that while Mr. Gallagher

Gistributed copies of the Federation's resolution in his capacity

as its Federal Secretary, it was not appropriate in all the

circumstances of the case to hold that a separate contempt was

committed in terms of charge 4. However, he found that Mr.

Gallagher's final answer set out in the first charge, which had been given after he had distributed the Federation's resolution,

did constitute a contempt which should be punished.

His Honour's judgment was subjected on this appeal to

close examination. Since the liberty of a subject is in

question, we will strive to attend to each criticism.

Nonetheless, it seems apt before doing so to record the issue as

it presented itself to the learned primary Judge: He said:-

"In the present case the crucial question is whether in giving the answers set out in paragraph 1 of the statement of charge, Gallagher, either expressly or by implication, asserted that the Federation by the action of its members outside Court, had the power to influence and in fact influenced the Full Court of the Federal

Court of Australia to set aside the term of imprisonment imposed upon Gallagher".

His Honour then went on to express the opinion that the questions

and answers which gave rise to the charges of contempt had to be considered in the light of the considerable publicity which had occurred before and which it must have been anticipated would follow from the Full Court's judgment, some three hours

previously. Further, he pointed out that Mr. Gallagher knew of

the Federation's resolution, and that the first two paragraphs of that resolution necessarily referred to Mr. Gallagher. Elsewhere he noted, in favour of Mr. Gallagher, that, in construing what Mr. Gallagher said, "the need for full, free and frank public comment on judicial decisions" was to be borne in mind and that the criminal onus of proof was applicable.

It is Mr. Gallagher's own case that the answer which has been held to constitute contempt, and the question to which it was a response, were substantially repetitious of two earlier questions and answers, and that by the answers Mr. Gallagher was explaining and amplifying the first two paragraphs of the Federation's resolution. The respective extracts are as follows :-

The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand,

alongside their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.

Today is our members' day. Once again the unity between rank and file and officials and preparedness to engage

(b) Questions and answers before distribution of Federation resolution:

Reporter: 'Mr. Gallagher, how do you feel about getting acquitted by the Courts?'

\ Gallagher: 'I think it's a great victory for the members of the Federation'. Reporter: "Do you feel personally happy about it?' Gallagher: 'Well put it this way I had no doubt that the membership would defend the officials of this union. They showed

their....their position when the sentence was announced, that a lot of employers in

this industry couldn't afford a struggle at the present time because of high interest rates and they knew that if there was a dispute with the union then a

(c) Question and Answer after distribution of Federation resolution:

Reporter: 'Mr. Gallagher, what is your reaction (or response) to the Court's decision?'

Gallagher: 'I'm very happy to the rank and file of the union who has shown such fine support

. for the officials of the union and I believe that by their actions in demonstrating in walking off jobs....I believe that that has been the main

Federation's resolution. In rejecting the fourth charge his

Honour said that, insofar as the contents of the resolution

constituted a contempt, Mr. Gallagher may have committed a Y

contempt in publishing the resolution by distributing it to those

present at the interview. He did not persevere with further : consideration of that possibility. He deemed it inappropriate to .

do so because the resolution had otherwise been brought to

account. The learned primary Judge had earlier stated that,

although the relevant part of the resolution might have been

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"mere hyperbole", it "set the tone" for the answers given by Mr. Gallagher. Thus, the Federation's resolution was brought to account by his Honour, not as a separate contempt, but as "part of the surrounding circumstances" of the answer which was held to amount to a contempt.

The answers given by Mr. Gallagher at the commencement of the initial interview, i.e. the first two answers contained in the first charge, and the first part of the answer given by Mr.

Gallagher after distribution of the Federation resolution, which

is the remaining answer upon which the first charge is based,

were all accepted by his Honour as no more than expressions of

gratitude by Mr. Gallagher to members of the Federation for what

they' had done. His Honour held such statements did not

constitute contempt of court. However, the learned primary Judge held that the statement by Mr. Gallagher "I believe that by their actions in demonstrating in walking off jobs....I believe that that has been the main reason for the court changing its mind" constituted a contempt which the Court ought punish.

The focal point of the attack on behalf of Mr. Gallagher on this conclusion concerned the meaning which the learned primary Judge attributed to what Mr. Gallagher said. We cannot accept the literal accuracy of his observation that by the statement in question Mr. Gallagher "asserted that the Full Court changed its mind because it was overawed by the action of workers walking off jobs and demonstrating". There is absolutely nothing to warrant the view that Mr. Gallagher stated that the Full Court

actually changed its decision once arrived at. His Honour's

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statement of the "crucial question", which has been quoted, the

following passage from his judgment and his sumuary when later

imposing punishment, indicate that his view was rather that the

meaning of Mr. Gallagher's statement was that the walk-off and demonstration had influenced the Full Court's decision. In his . judgment delivered on 18 October 1982, he said:-

"...The words are an echo of what appears in the first paragraph of the resolution, namely that the action of

the members of the Federation, 'is the key to the reversal of the decision to jail Norm Gallagher'. The

words were used in the context of illustrating what was achieved when the rank and file and officers of the

Federation combine to engage in a class struggle. Implicit in the answer is the assertion that by that

class struggle the Federation is able to force a Court to come to a decision not according to the law and to

the facts proved in court, but according © to the strength and actions of a body outside the court

| In the reasons which he gave for the punishment which he imposed,

Northrop J. said that the answer which he held constituted a contempt of court was "an assertion that the Federation is able to force the Court to come to a decision, not according to law and to the facts proved in Court, but according to the strength and actions of the Federation and its members. It asserts that

the Federation and its members are outside the law". We will return to the meanings which the learned primary Judge ascribed to what was said by Mr. Gallagher. Before considering that question further, it is convenient to deal with @

other criticisms which were levelled at his Honour's judgment.

statement was a contempt, the learned Judge, after stating his

opinion of the meaning of what had been said, continued:-

Yo "The giving of the answer at the interview constitutes

conduct by Gallagher which of necessity must tend to

induce a lack of confidence in 'the ordered and fearless administration of justice'. That conduct by Gallagher

of necessity must have the tendency 'to detract from the authority and influence of judicial determznations...to

impair the confidence of the people in the Court's judgments because...(it)...aims at lowering the

authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of judicial

office', R. v. Dunbabin at p.242". We can find no support in that passage for the submission which was made that his Honour thereby considered the words used by Mr. Gallagher and attributed to them a meaning and significance in isolation from the surrounding context. The express language of the learned Judge "The giving of the answer at the interview", is, to our mind, directly to the contrary, particularly when taken with his Honour's earlier emphasis on the need to have regard to all the surrounding circumstances. Likewise, when imposing punishment the learned Judge re-stated the meaning of the words used, he added that they had "a tendency to destroy the confidence of the public in the integrity, propriety and

impartiality of the Court" and were "a most serious contempt".

Again, those comments were accompanied by a summary of the

background circumstances. His Honour also held that Mr. Gallagher gave the answers which he did with the knowledge and intention that the answers or

some of them would be published further 1n the press or on radio

or television. The statement held to constitute contempt was in

fact published on television by the Australian Broadcasting

Commission. Notwithstanding the proposition that newspapers,

radio stations and television channels were sensitive to the need

LS to avoid publication of material which constituted contempt and

had access to advice, 1t seems to us that the challenge to what the learned Judge held on this issue was misconceived. Mr.

Gallagher was not adjudged guilty of contempt for the publication

on television but for his statement in an interview which he knew and intended would or might be telecast or otherwise disseminated to the public.

distinguished Attorney-General of New South Wales ve Mundey

(1972) 2 N.S.W.L.R. 887 which was relied on strongly on behalf of

Mr. Gallagher before this Court as well as below, was that Mr.

Gallagher gave no evidence in the proceedings whereas Mr. Mundey had done so when proceeded against for contempt. In the context in which the passage in question appears in his Honour's judgment, we cannot accept that the absence of evidence was relied upon to form an inference adverse to Mr. Gallagher in

respect of the meaning to be attributed to what he said. His

Honour meant no more, in our opinion, that that, because Mr. Gallagher gave no evidence, there was no evidence that he did not intend his answer to bear its natural meaning. His Honour was entitled to be unimpressed by the statement by Counsel for Mr. Gallagher in the course of his address that he was instructed that the sole purpose underlying Mr. Gallagher's statement was an

expression of gratitude to members of the Federation and that it

was not intended to denigrate or scandalize the Court.

It does not, however, follow from the proposition that

Mr. Gallagher must be taken to have meant what he said that his

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words were carefully chosen, with thought of their significance.

His Honour also distinguished Mundey's Case on the basis of the longer period which Mr. Gallagher had between the Full Court's decision and the interview. He described Mr. Gallagher's answers as "careful, considered and deliberate". His Honour repeated the same phrase when imposing sentence. It must we think, be accepted that his Honour convicted and sentenced Mr. Gallagher on

the basis that he not only made a deliberate assertion in terms

of the answer held to constitute contempt but that his assertion was a premeditated attack on the integrity of the Full Court in

meaning which his Honour found Mr. Gallagher's material answer

bore. We are satisfied that it did not bear the meaning, touched

on by the learned primary Judge in one passage, that the Full

Court, having made up its mind to dismiss Mr. Gallagher's appeal,

was overawed into allowing it. We are equally satisfied that it

did not merely amount to an expression of gratitude by Mr.

Gallagher to the members of the Federation, or a statement to the effect contended for by Mr. Gallagher:- ,

(a) that the majority of the Full Court had seen the injustices of the penalty imposed by Keely J. as had the workers when they walked off the jobs and demonstrated and that the Court had given recognition to that injustice by rectifying it and allowing the appeal;

(b) that the majority of the Full Court had recognised the feelings of the public as evidenced by the said

demonstrations and that the Court had had regard to those feelings of the public in arriving at its decision to allow the appeal.

We have no doubt that the answer did constitute a contempt of court and that it is within this Court's power and a proper exercise of its discretion for the Court to sustain the conviction on any proper basis rather than set it aside and order a new trial. That which has been held to constitute a contempt is, in our opinion, incapable of any meaning which is not a contempt. The assumption underlying the submissions for Mr. Gallagher that, because an object of his statement was to thank the members of the Federation, it did not also scandalize the Full Court is plainly indefensible, even if the proposition could be accepted that the relevant part of the material answer was an expression of gratitude to the Federation members.

Mr. Gallagher said that he believed that "that", i.e.

the actions of the rank and file of the union "in demonstrating

in walking off jobs", had been "the main reason for the court

changing its mind". We did not understand it to be challenged that he was referring, by what he described as the "court changing its mind", to the reversal by the Full Court of Keely J's. decision that he was guilty of contempt of court and should

be imprisoned. He therefore said about as clearly as possible

that the Full Court decision had been influenced by the actions

of the members of the Federation; indeed, that their actions in

walking-off jobs and-demonstrating had been "the main reason" for

On this appeai counsel for Mr. Gallagher at one point in

his argument treated such a proposition as fanciful as, of a

course, it is to any person who has any understanding of the role

_' We have no doubt that the answer did constitute a contempt of court and that it is within this Court's power and a proper exercise of its discretion for the Court to sustain the conviction on any proper basis rather than set it aside and order a new trial. That which has been held to constitute a contempt ° is, in our opinion, incapable of any meaning which is not a contempt. The assumption underlying the submissions for Mr.

Gallagher that, because an object of his statement was to thank

the members of the Federation, it did not also scandalize the

Full Court is plainly indefensible, even if the proposition could be accepted that the relevant part of the material answer was an

Mr. Gallagher said that he believed that "that", i.e.

the actions of the rank and file of the union "in demonstrating

in walking off jobs", had been "the main reason for the court

changing its mind". We did not understand it to be challenged that he was referring, by what he described as the "court changing its mind", to the reversal by the Full Court of Keely J's. decision that he was guilty of contempt of court and should be imprisoned. He therefore said about as clearly as possible that the Full Court decision had been influenced by the actions of the members of the Federation; indeed, that their actions in walking-off jobs and demonstrating had been "the main reason" for

On this appeal counsel for Mr. Gallagher at one point in

his argument treated such a proposition as fanciful as, of we

course, it 1s to any person who has any understanding of the role

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, of courts in our society and the manner in which their functions

are discharged. Indeed, even those without such knowledge who

took the trouble to think about Mr. Gallagher's statement would

readily perceive that logic had yielded to self interest,

perceiving that "class war" propaganda, in which courts are seen

\ as puppets of government, is contradicted by an assertion that a court has bowed to "worker" pressure, whilst perhaps puzzled why such pressure should be sufficient to secure an acquittal for Mr. Gallagher and the other union official (whom Keely J. had fined) but not to secure an acquittal for the Federation (which Keely J. had also fined a much larger sum). Nonetheless, the audience at whom Mr. Gallagher's statement was aimed included more than the informed and the thoughtful. Others, including perhaps some members of the Federation, might well not realize that his assertion was derisory. It is impossible to doubt that a statement, to those who might believe such a statement, or even wonder at it, that the main reason for a court's decision to acquit of a serious charge was, in effect, pressure which had been brought to bear by members of the Federation walking-off jobs and demonstrating, would tend to cause a lowering of confidence in the court's authority and integrity and bring it into contempt.

What has troubled us most in this matter is the question of penalty. We are not entirely confident that Northrop J. did not attribute a more extensive operation to Mr. Gallagher's

statement than we think that it bears beyond reasonable doubt.

Some of the meanings, e.g. that the Federation is able to force

the Court to a decision, as distinct from that the Court had been

influenced on the particular occasion, or that "the Federation and its members are outside the law", may have been open to a listener to Mr. Gallagher, but were not necessarily involved beyond doubt in what he said. He aiso was no doubt influenced in the punishment which he imposed by his view that the statement was "careful considered and deliberate". His Honour, in dealing with penalty, also said:-

"Over a long period the activities of the Federation and

the sayings of Mr. Gallagher have been given much publicity by the news media. Mr. Gallagher is a public

figure. He has been given every opportunity to explain his answer. He has not done so. He has shown no sign of remorse. He has expressed no regret to the Court.

He has offered no apology to the Court. His conduct had a tendency to impair the confidence of the public in the

Court's judgments. It attacked the integrity, propriety and impartiality of the Court. The confidence of the

public in the integrity, propriety and impartiality of the Court must be maintained.

The contempt of court by Norman Leslie Gallagher warrants the imposition of a severe penalty. In all the

circumstances 1t is not appropriate that a monetary penalty should be imposed. In any event it is all too

easy for Mr. Gallagher to have a monetary penalty paid by "penefactors" The punishment must take the form of

imprisonment. in all the circumstances he must be sent to prison for three calendar months. In addition he

will be ordered to pay the Attorney-General's costs".

We have concluded, not without some hesitation, that this Court should reconsider for itself what punishment is appropriate for the contempt committed by Mr. Gallagher, although

we would not consider imposing any greater penalty than the term of imprisonment handed down by Northrop J. Mr. Gallagher boasts that the Federation is engaged ina

"class war" in our society. This @ourt is a major battleground

for the Commonwealth Government's counter attack. We mentioned

' at the outset a number of contempt charges laid in this Court in the course of the dispute in little more than a year. Other contempt charges have also been brought in other jurisdictions. In none of them, so far as we are aware, has the charge been laid by the Court itself to defend its authority and integrity.

We do not know the reason for the delay in the commencement of these proceedings or why the decision was consciously taken not to proceed against the television channel which disseminated Mr. Gallagher's remarks. We doubt whether it

would be a proper inference that the contempt was not thought to

be likely to have any serious effect on the Court's position but }

that nonetheless Mr. Gallagher should not be permitted to go

unpunished. Certainly, his conduct was unusual if not unique.

Few would be foolish enough, if it was mere folly, to commit a

further contempt in the course of commenting upon an acquittal of

Northrop J. did not consider that the further contempt was no more than foolish. He thought it "careful, considered and deliberate". As we apprehend his opinion, he was satisfied that Mr. Gallagher not only intended to say what he did but that he fully appreciated its significance.

There are, perhaps, some indications to the contrary.

Some parts of the interview reveal an attempt by Mr. Gallagher to

avoid transgressing, at least in the same respects as previously

or in relation to the order which had been made as to the manner in which the Federation's fine'was to be paid. Reliance was also ~

placed on behalf of Mr. Gallagher on the fact that the offending

we ES Ree ly OUT EA faed TEE STR TR DT aT P ES TOR a a OS cain aa

answer was made aS an apparently unrehearsed response to a - question of which he had no prior notice, and formed only a small

There is some force in these submissions but they are, in our opinion, outweighed by other considerations. We have seen videotapes of what occurred in the interview. What was said and done is not seriously in dispute. The overall context persuades us not only that there is no occasion to call in question Northrop J.'s conclusion but that h1s Honour was correct. Mr. Gallagher did, as his counsel submitted, expound and explain the Federation resolution. He elaborated on the "key to the reversal

of the decision" to jail him referred to in the resolution to

make express the assertion that it was the conduct of the members of the Federation which led to the decision. Nothing has emerged to suggest Mr. Gallagher should be considered unaware of the significance of his remarks. Certainly, we would not draw such a conclusion from his attempts to avoid trouble in dealing with other controversial topics.

Northrop J. thought that a fine was inappropriate by reason of the seriousness of the contempt. He added a reference

to the fact that if a fine were imposed Mr. Gallagher would not

personally sustain the loss but the money would be donated. If,

as we think, the objects of a penalty included punishment of Mr.

Gallagher and deterrence of future similar conduct by him, we

cannot see why the latter consideration was not a proper one in

the particular circumstances of these contempt proceedings. Part

of the interview in which the offending statement was uttered

"pre epee ey ES SOT I FT = Gop re wl Sy tt oes Fy oy . ai 2 eres ak A . ' = . : : .

consisted of boasts by Mr. Gallagher that the Federation's fine would not be paid out of its own funds but with other people's money. He hinted that builders would contribute, implying we think that they would do so in order to avoid industrial trouble although we do not rely on that factor. The statements made about the payments of the Federation's fine were directed to illustrating that the Court's order that the Federation pay its

own fine for contempt could and would be circumvented. We cannot accept that the Court's order that the Federation pay its own fine for contempt could and would be circumvented. We cannot accept that the Court's power to punish for contempt is so circumscribed that it must accept the inevitability of such a situation. Punishment for contempt must, we think, be appropriate to reassert and confirm the Court's authority.

otherwise appropriate to the contempt which was committed. Mr. »

Gallagher must be punished and deterred for the future. Others ' must be discouraged from following his example. . Mr. Gallagher is an occupant of an important office; he cannot simply be dismissed; his public utterances cannot be ignored as unimportant. It is in our opinion appropriate to consider Mr. Gallagher's material statement not merely in connection with the immediate events which it accompanied but by reference to a broader picture. The Australian community has

become accustomed to see Governments, Fs well as employers, being

influenced on occasion by the pressure which trade unions are

able to bring to bear. Whether that is a good or bad thing is a

matter upon which views may differ and 1s presently irrelevant. However, the community's knowledge of the power of trade unions in other contexts 1s a matter to be kept in mind in assessing the seriousness of an assertion by a senior trade union official that a court was improperly influenced by the activities of his union's members.

Mr. Gallagher has taken no step to mitigate the consequences of his contempt. There has been no acceptable explanation, no apology and no sign of regret. If at some point Mr. Gallagher wishes to recant, then. 0.40, r.12 of the Rules of this Court will permit him to make an appropriate application.

In our opinion, no cause has been shown to interfere with the judgment below. We consider that the orders made were correct.

There is one final matter. The notice of appeal contained a ground that Northrop J. should have disqualified himself. It was suggested his decisions in previous proceedings revealed an undue sensitivity to criticism of the Court and this was confirmed by the severity of the sentence. This contention was not pursued and we say no more than that we reject it.

In our opinion, the appeal should be dismissed with costs, the stay of orders granted by Northrop J. on 5 November 1982 should be lifted, and the direction that the warrant of committal should lie in the registry should cease to have

I certify that this and the Htewte- uve (25) preceding pages area true copy of the Reasons for Judgment Le-cin of his Honour

REASONS FOR JUDGMENT JENKINSON J: Appeal from an order of Northrop J. that the appellant be imprisoned for three calendar months for contempt of this

The appellant had been sentenced by Keely J. for a contempt of the Court held by that learned judge to have been committed by the appellant's attempted dissuasion of certain persons from giving evidence 1n a proceeding in the Court, and of certain organizations from maintaining that proceeding, in which those organizations were applicants. On 21 July 1982 an appeal to a Full Court against the orders of Keely J. was allowed and the judgment that the appellant had been guilty of contempt was set aside. The two members of the Full Court in accordance with whose opinion the appeal was allowed grounded their conclusion on the circumstance that the "particularized Statement of Charge contatned uo distinct statement of the

particular charge of contempt of court which His Honour found

The judgment of the Full Court was delivered at about 10 o'clock. At about 1 o'clock that afternoon the appellant came out of an office in Lygon Street Carlton of the Australian Building Construction Employees' and Builders Labourers' Federation. The Federation is an organization of employees under the Conciliation and Arbitration Act 1904 of which the appellant was at material times the federal secretary. The proceeding in relation to which contempt of the Court had been alleged against the appellant before Keely J. was for the deregistration of the Federation. The appellant held a bundle of sheets of paper on each of which was the lietter-head of the Federation and, below, the following words:

"The decision of the Federal Court is a credit to the rank and file of the Federation whose significant stand, along- side their elected representatives, is the key to the reversal of the decision to jail Norm Gallagher.

Today is our members' day. Once again the unity between rank and file and officials and preparedness to engage in class struggle has won the day.

As to the fine 1mposed on the Federation, ve maintain our stand that Criminal Courts should not interfere in industrial disputes. This is a cardinal rule of the union movement. We cannot justify the use of our members' funds for the payment of such fines. However, as previously announced, we have launched a public appeal to raise funds to assist the Federation at this time. We

are able to say that we have received a number of substantial donations to that appeal fund, the total of which exceeds $15,000.

About 20 people were waiting in Lygon St. when the appellant camc out. _ He handed sheets to some of those people. He was then interviewed by some of them. Some of the people present operated television cameras and sound recording equipment while he was interviewed. What could be called a second interview took place after some cf the questioners and operators of television apparatus had ceased to attend upon the appellant, and others asked him questions similar to questions he had already answered while at least one set of television apparatus was trained on the appellant. Not everything which occurred was recorded by the apparatus. Not everything said was written down by the journalists who were present. The evidence of what occurred and of what was said was incomplete. The following record of what was said is taken from the reasons for judgment which Northrop J.

"The questions asked and the answers given in the first interview are set out:

Reporter: 'Mr. Gallagher, how do you feel about getting acquitted by the Courts?'

Gallagher: 'I think it's a great victory for the members of the Federation.'

Gallagher: 'Well put it this way 1s that I had no doubt that the membership would defend the officials of this union. They showed their .... their position when the sentence was announced, that a lot of employers in this industry couldn't afford a struggle at the present time because of high interest rates and they knew that 1f there was a dispute with the union then a lot of them'd go out backwards. '

Reporter: 'pir. Gallagner, how expensive an exercise had it been for the union?!

'Woll, first of all if you read the statement of the Federal Management Commzttee you will

see that there has been a public appeal, where over 15,000 has been collected and the fine that the court has imposed on the union

'No, I've never been afraid of going to jail for what I believe in.'

'Well, first of all that's a matter between the union and those people who had donated to the public appeal.'

'Are builders in that grouv?' 'Well who else'd pay it?'

'If you read this statement you will see that the union 1s prepared to pay the fine, with other people's money ... not its own. '

'The Court has said that you ... the union itself has to pay it.'

'Yes, we will name a person to pay 1t, but the money that will be paid to the court would have come out of the public appeal.'

'Can you say who the builders are that donated to this cause?'

'No, but I think you have all got an idea who they are.'

'No, I don't think he'd have enough money ... He's going bad!'

'W111 there be further industrial action against companies that are involved in the deregistration?'

The questions asked, or in some cases, the substance

'Do you regret what you did in the first place in imposing those bans?'

of them, and the answers given in the second interview are

'Mr. Gallagher, what is your reaction(or response) to the Court's decision?'

file of the union who has shown such fine support for the officials

of the union and I believe that by their actions in demonstrating in walking off jobs ... I. believe

'Do you intend to pay the fine that's still outstanding.'

funds. We've set up a public appeal in which we've already received over 15,000 dollars

out of thet fund. I want to stress once again it will not come out of union funds nor will any union money be used to pay it.'

'Have you said who actually contributed that money?'

'No, but I think you know who would contribute to such a fund.'

'Employers who don't want further industrial reaction perhaps.'

'Well, I don't think any employer in this industry wants to have a faght with this union at the present time. There's

too many got problems with high interest rates, liquidity problems and there's no doubt that they want an easy way out.'

Reporter: 'The court has made it clear that the union itself should pay the fines out of its own funds? Do you think this move you're making will jeopardise the ... that there could be further action against you because of this?'

Gallagher: 'No, what we've said is that, we will be using the money out of the public appeal fund and we will get our benefactors to

pay it.' (Question as to who would pay the court costs.)

Gallagher: 'The Federal committee of management will consider that later on. t'll be a few thousand in fees.'

(Question as to how the union would face deregistration. )

Gallagher: 'It's looking sicker and sicker every day ... it's looking more sicker than Malcolm Fraser's chances in the next Federal election. Peacock's gone, Vaner's gone, and I'm still here. The message 1s getting back to Macphee, that to continue deregistration will only leave

"** " majer problems in the-industry they can 111 afford.

Four big major contractors are pulling ovt of deregistration. No doubt people are seriously thinking about it.'

(Question about the possibility of criminal charges as a result of the Royal Commission.)

Gallagher: 'I don't want to discuss it. It'll fall on its face just like this has.'

Gallagher: 'A lot of jobs have gone home in protest over the fine. Dozens and dozens have gone

home.' Reporter: 'How do you feel about the media?' Gallagher: 'I believe you've still got a long

way to go before I say you've got good manners but you are improving ... I have seen signs of it today.'"

Northrop J. observed of the evidence concerning what

"The questions were not hostile. Gallagher was not being harassed by the journalists and reporters. He gave careful, considered and deliberate answers. The only sagn of any amusement was when he gave his answer that

H. M. Keast was going bad. As he gave that answer he laughed".

'being 'harassed by the -journalists and reporters.:--:

He gave careful, considered and deliberate answers. The only sign of amusement came at the very end when, at the request of a reporter, he posed while holding a copy of

the resolution in front of his chest to enable him and it to be filmed while he was asked

and the oral evidence by persons who were present justified

"The respondent Norman Leslie Gallagher, is charged with contempt of the Federal Court of Australia in that he on 21 July 1982 outside 11 Lygon Street Carlton, after his appeal against his conviction and sentence to 2 months' imprisonment by the Federal Court of Australia had been allowed by a Full Court of the Federal Court of Australia on that day, spoke and published to a number of television reporters, camera operators, journalists and other persons the words attributed to him in the following passages, namely:

Reporter: Mr. Gallagher, how do you feel about getting acquitted by the Courts?

Gallagher: I think its a great victory for the members of the Federation (meaning thereby the Australian Building Construction Emplcyees and Builders' Labourers Federation).

I had no doubt that the membership would defend the officials of this union. They showed their ... their position when the sentence was announced, that a lot of employers in this industry couldn't afford a struggle at the present time because of high interest rates and they knew that 1f there was a dispute with the union that a lot of them'd go out backwards.

Reporter: Mr. Gallagher, what is your reaction (or response) to the Court's decision?

Gallagher: I'm very happy to the rank and fale of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... 1 believe that that has been the main reason for the court changing its mind.

the said words being antended by him to, or having the tendency to, attribute improper motives to the Court end Judges who connprised 1t, to excite misgivings as to their integrity, impartiality,

office, and to cause a lowering of confidence and respect on the part of the public and litigants in it and them, and thereby to scandalise the Court".

attributed to the appellant in the last of the passages set

out in that charge constituted a contempt of this Court in

that they asserted that the judges of the Court in accordance

with whose opinion the appeal by the appellant against the

order of Keely J. had been upheld were influenced to come

to that opinion by the demonstrations to which the appellant

His Honour's conclusion that there had been such a contempt

raise the contention that the appellant's words were'lintended

majority of the Full Court had seen injustice of the penalty imposed by learned judge at first instance, as

that the Court had had regard to those feelings of the public in arriving at its

It was submitted by Mr. Ryan Q.C., who appeared for the appellant with Mr. Merkel Q.C., that the evidence did not justify satisfaction to the contrary of that contention beyond reasonable doubt. If it were not established beyond reasonable doubt that the appellant had, by what he said, meant something other than that, then it would be, according to submissions on the appellant's behalf,

an error in all the circumstances to hold him in contempt, or alternatively an error to impose punishment, or alternatively

an error to impose so severe a punishment as that which

Northrop J. ordered. If satisfaction beyond reasonable doubt

could not be reached that the words meant, on an objective consideration of them, something other than that, then it would

be, according to those submissions, an error to regard

utterance of those words as capable of constituting a

contempt. Reliance was placed, in support of those submissions,

on the yeasoning ,of Hope J.A. in Attorney-General for New South

Wales v. Mundey (1972) 2 N.S.W. L.R. 887, especially at 914.

In my opinion the evidence justified a conclusion, beyond reasonable doubt, that the words meant that the two judges who upheld the appellant's appeal were overawed to their decision in his favour by the activities referred to by the appellant as "their actions in demonstrating in walking off jobs". if those two judges had mitigated the appellant's punishment while upholding the conclusion of Keely J. that

the appellant had committed a contempt, some basis might

have been found for the submissions under consideration. Sut

I find no basis for those submissions in the circumstances which actually existed, or in what may have appeared to the appellant, and to most of the persons to whom he may have supposed his words might be published, were the circumstances. If neither the appellant nor those persons had any clear understanding

of the expressed reasons for the reversal of the order that he be imprisoned, yet it may be inferred safely that he did not,

at the time he spoke the words under consideration, believe

that those reasons suggested a misericordious ground of that

It was submitted that a particular passage in the reasons for judgment of Northrop J. disclosed his misunderstanding of what it was that the words held to have constituted the contempt signified. This misunderstanding vitiated the conclusion that a contempt had been committed, it was said. The passage reads: "The first part of the answer is an expression of gratitude to members of the Federation, but the words, 'T believe that by, their actions,in.demonstrating in walking off jobs ... I believe that that has been the main reason for the Court changing its mind'; cannot in my opinion come within that category. It was a deliberate statement which, to adapt the words of Hope J.A. in Mundey's case, asserted that the Full Court changed its mind because it was overawed by the action of workers walking off jobs and demonstrating. The words are an echo of what appears in the first paragraph of the resolution, namely that the action of the membecs of the Federation, '1s the key to the reversal of the decision to jazl Norm. Gallagher'. The words were used in the context of illustrating what can be

achieved when the rank and file and officers of the Federation

combine to engage in a class struggle. Implicit in the answer is the assertion that by that class struggle the Federation is able to force a court to come to a decision not according to

law and to the facts proved in court, but according to the strength and actions of a body outside the court". To a reader unfamiliar both with Mondey's case and with the history of the activities by members of the Federation which might have been the subject of the appellant's reference to"the1r actions in demonstrating in walking off jobs", no obvious difficulty

would be occasioned by that passage in His Honour' reasons.

But the evidence before Northrop J. established, it was said, that the only activities to which the appellant could reasonably be supposed to have been referring occurred immediately after the judgment of Keely J. was given on 18 May 1982, before any appeal against that judgment had been instituted and therefore before any judge of this Court might have had occasion to form in his mind any opinion as to whether or not such an appeal , should succeed. Therefore, 1t was submitted, the appellant could not be taken to have intended to assert that members of the Full Court, which determined that appeal had changed their opinion as to whether the appellant's appeal should succeed in

consequence of those members' awareness of "their actions in demonstrating in walking off jobs." The submission rests on unexpressed premises, first, that the appellant would suppose that the judges of the Full Court in accordance with whose opinion the applicant's appeal was upheld had become aware of those actions by members of the Federation on or shortly after 18 May 1982 and before those judges had had occasion to form

an opinion on the question whether the appellant's appeal shovld

succeed, and. second, that the appellant would suppose that any

effect which those actions might have had upon the deliberations of a judge determining the appellant's appeal would have been on the aunitzral formation of an opinion, in favour of upholding the appeal, rather than on the ultimate conclusion which the judge reached on the disposal of the appeal after fluctuation of opinion. In my opinion neither premise can be sustained. Each premise involves a judgment, about the appellant's ratiocinative processes and his beliefs concerning the behaviour of judges, for the formation of which the evidence

It was submitted that there was nothing known to the appellant to suggest that there had been any change of mind by either of the two judges of the Full Court who upheld his appeal and that for that reason the appellant could not be taken to have asserted that such a change of mind had occurred. Neither was anything known to 'the appellant to suggest' that i those two judges had been influenced by the activities of

members of the Federation to uphold his appeal and thereby to

change the mind of the Court, in the metaphorical sense which

appellate reversal of the judgment of a single judge of the Court suggests. Yet in my opinion the appellant made, by his speaking the words held to be a contempt, an assertion to that

To the suggestion that the inclusion of the word "Full" in the sentence which ancludes His MWonour's reference to "Mundey's case" might be a slip unintended by Northrop J., and that a consideration of the whole of His Honour's reasons for

judgment leads to the conclusion that ne had takyn the

appellant's reference to a change of mind in the metaphorical

sense, Mr. Ryan responded by reference to the reasons for

judgment of Hope J.A. in Attorney~General for New South Wales v. Mundey (1972) 2 N.S.W.L.R. 887, especially at 913-915. In that

case the words held to constitute a scandalizing contempt were found by Hope J.A. to mean that a judge engaged in sentencing two men had decided to impose on them terms of imprisonment, but had "changed his mind" and fined them instead "because he was overawed by the action of workers walking off their jobs and attending the trial and by the threat to call a national strike" (1972) 2 N.S.W.L.R. at 914). The reference to the words of Hope J.A. in the sentence under consideration excluded the possibility that the word "Full" in that sentence was an unintended slip, Mr. Ryan submitted, because 1t was an actual, not a metaphorical change of mind with which Hope J.A. was dealing when he used the words which Northrop J. chose to

It is in my opinion unnecessary te determine whether

the inclusion of the word "full" was a slip. If it was not,

and Northrop J. is to be taken to have understood the appellant's words as a statement that the two members of the Court who upheld the appellant's appeal had been minded to dismiss the appeal but had changed their minds to decide in the appellant's favour because they were overawed by the activities of members

of the Federation, that understanding is in my opinion quite reasonable. If on the other hand there was an unintended inclusion of the vord "full" an that sentence, and Northrop J.

1s to be taken to have understood the appellant's words as

a statement that those two members of the Court upheld che

appeal - and thereby in a metaphorical sense changed the mind

of the court in taking a view cf the case different from the view taken by Keely J. - because they were overawed by the activities of the members of the Federation, that understanding is also in my opinion quite reasonable. J would be satisfied beyond reasonable doubt that the appellant's words could have no other meaning than one or other of those two meanings, and that each understanding leads equally to the conclusion that those two members of the Full Court had gravely failed in performance of thear judicial duty. In the circumstances of this case it Matters not, in any respect, whether a mind engaged in judicial deliberation is said to have been improperly influenced from one cpanion to another, from one decision to another, or is said to have been improperly influenced to reach an opinion or a decision on a question as to which that mind had been open until it was improperly influenced. Whichever understanding one had of the words, the culpability of the appellant is

in my opinion the same and the harmful consequences to the

It was submitted by Mr. Ryan that all the cireumstances under which words the utterance of which is alleged to constitute contempt by scandalizing the court must be considered in determination of the question whether the allegation is to be accepted by the court. By reference to that unexceptionable premise criticism was then advanced of several parts of the reasons which Northrop J. gave for his affirmative answer to that question. His Honour said that a claim by a party that the party or those associated with the party could influence or had influenced a judgment by action taken outside the Court

waS a claim calculated to create misgivings as to the integrity,

propriety and impartizality necessary to the exercise of judicial office. A similar observation was made by His Honour when he observed of such a claim that it "of necessity must have" such a tendency. These passages showed error, 1t was submitted, by disclosing a failure to consider the circumstances under which the claim was made, and without consideration of which a conclusion either that the words had that tendency or that the words should be held a contempt could not be reached. It was said, by way of illustration in support of the submission, that such a claim in a private conversation, or by a person on whose opinion no reliance was ever placed by those to whom he made the claim, might be held no contempt. Reference was made to the reasoning of Fullagar J. an Davis v. Ballie (1946) V.L.R. 486

at 493-4 which led that learned judge to the conclusions that

in proceedings for contempt both the tendency of the matter

published and the intention of the publisher are "relevant to the

determination of Liability and not merely to the assessment of punishment" and that in such proceedings "the logical distinction between 'conviction' and 'sentence' has not the significance which, it has in an ordinary criminal proceeding". And reliance was placed on the significance which Hope J.A. had allowed, in another case of scandalizing contempt by a person answering questions in front of television cameras, to the circumstances that the contemnor had not initiated the interview, had been asked questions likely to evoke an emotional response and had taken no part in deciding which, if any, of his answers

would be televised: Attorney-General (N.S.W.) v. Mundey (1972)

In my opinion the reasons of Northrop J. do not, upon

a consideration of the whole of them, suggest that he failed to

consider all of the circumstances relevant to his determination that the appellant should be held in contempt. In each of

the two passages which, 1t was submitted, disclosed such a

failure, His Honour was directing his attention to the meaning

of the words spoken and to the reflections upon the performance

by the Full Court of its function which the words were likely

to excite in a person who heard them and understood their meaning. That was an essential part of the function His Honour was undertaking and I can see no error in his recording his

performance of that part without including ain the record a statement of his awareness that there were other parts and that

he would attend also to those others. Elsewhere in his reasons for judgment Northrop J. makes observations which in my opinion show that he had regard to the considerations which in the submissions on

Complaint was made that the learned judge's reasons displayed a selectivity in reference to the relevant considerations which indicated a failure by His Honour to give

proper consideration to matters favourable to the appellant.

The complaint was developed with reference to a number of matters, It 1s unnecessary to deal with them in detail. Tf can find no substance in the complaint. ' The appeal] against the sentence imposed on the applicant was supported by reference to observations by Hope J.A.

in Mundey's case supra. That learned judge said (1972) 2

imposition of a penalty other than an order as to costs I would have heard further submissions from counsel in relation to this aspect of the matter. However, I do not think that the circum- stances of the making of the statement are such as to justify any other penalty. It 1s important first of all to remember that this is not a case where the defendant was the moving party in the ancident involving the contemptuous statement.

It is not a case of an article, letter or prepared statement published in a newspaper or telecast from a television station where the person writing the article or letter or making the statement has himself decided to write or to make it, and has had time to give thought to its form. The defendant did not initiate the incident in which the statement was made, and although he must have realized the possibility that his remarks would be telecast, the decision as to what part, if any, of

the. statement should be telecast was not his. These circumstances alone would not remove his reponsibility for the dissemination of his remarks, but 1t is important that they were made in answer to questions which the television interviewer had planned to. ask him, and which I think were intended to' produce, and

were asked in circumstances likely to produce, a strong and emotional answer, there is no evidence which suggests that if

it had not been for the initiative of the television interviewers, the defendant would have made any contemptuous statement at all. He said in evidence, and I accept, that he did not intend to be contemptuous of the court and thought he was free to comment on and give his views as to the conduct of the trial. Having regard to the nature of the statement which I have found to be

contemptuous and to all the other circumstances of the case, I

have come to the conclusion that the only action which I should take

in relation to the matter is to order that the defendant should pay part of the plaintiff's costs." It was submitted that in several respects the appellant's contempt was committed in similar circumstances. There are, no doubt, some points of similarity. But the appellant came out of his employer's office with a written statement prepared for publication by his employer's committee of management. He offered it to those who stood there. The first two sentences of the wratten statement suggest what the appellant was to say - by the words held to have constituted the contempt - in less veiled language. Whatever emotion, or sense of gratitude to the members of the Federation, may have been in the appellant's mind when he spoke the words, the evidence affords little support for the hypothesis that emotion may have diminished the appellant's judgment or his capacity to express his thoughts accurately.

The videotape provides strong evidence against any such an

It was submitted,and support for the submission was

(1972) 2.N.S.W.L.R. at 916-917,that the respondent's failure to move for an order that those responsible for transmitting on television the matter held to be a contempt be also adjudged guilty of contempt should induce lenzence in punishment of the appellant. Counsel for the respondent suggested reasons for that failure. It is sufficient for the disposal of this appeal to say that in my opinion it was not shown, either by reference to His Honour's reasons or by inference from the punishment in

fact imposed, that Northrop J. had failed to give to that

circumstance tne consideration and weight it deserved.

In the course of expressing his reasons for sentence Northrop J. observed that the statement which constituted the contempt "constitutes an assertion that the Federation is able to force the Court to a decision, not according to law and to the facts proved in Court, but according to the strength and actions of the Federation and its members. It asserts that the Federation and its members are outside the law". The observation was said to be erroneous and to have provided a false basis on which His Honour's sentencing discretion was exercised. Understood literally, the observation is obviously incorrect. In my opinion the learned judge has in that observation intentionally employed ellipses and 1s to be understood as saying that reflection upon the appellant's statement leads to the conclusion that he who makes such a statement is thereby committing himself as a logical consequence to the assertions which His Honour specifies. So understood, His Honour' s observations may he vulnerable to critical analysis. But as examples of the kind of reflection which the appellant's

statement could be expected to provoke in members of the public

they are not in my opinion observations which suggest that there

. was error in the exercise of the sentencing discretion.

rz cannot accept the submission that the punishment imposed on the appellant was excessive. I think that this was a contempt which in all the circumstances required the imposition of a term of imprisonment. The term which His Honour determined zn the exercise of his discretion was in my opinion within the

range outside which a soundly exercised discretion might not go.

It was submitted that a reference by Northrop J. in

his reasons for sentence to the likelihood that any fine imposed on the appellant would be paid with money provided by others indicated that His Honour had been influenced by that circumstance to prefer imprisonment to a fine as the appellant's punishment. But Northrop J. had declared that a fine was inappropriate before he made reference to the means by which a fine might be paid. That reference was in my opinion made obiter and did not

aundicate that the learned judge had been influenced to prefer imprisonment to fine by any consideration of the likely source

of money to be paid in satisfaction of a fine. It 1s therefore unnecessary to express any opinion on the further submission that such a consideration could not in law be allowed an influence

I would dismiss the appeal and would order that the

respondent's costs of the appeal (including costs reserved)