The question, therefore, for determination resolves itself into the all-important one whether a Magistrate, exercising judicial functions, can sustain an action for words uttered (as these were) sedente curia, implying that a decision was attributable to corrupt motives. This was also discussed before us, and the contention of the plaintiff shows how grave a matter may be involved in our decision. It was not contested that in the case of a Court of superior jurisdiction such an imputation would be a contempt of Court, and it was urged that, even in the case of a Judge of such Court exercising his power of fining or committal, thus awarding punishment due to the offence, an action lay for the imputation against the personal character of the Judge; in other words, to use the expression of the plaintiff's counsel, there was a "dual remedy", - one to satisfy public justice, the other for personal reparation. It was argued that it would be most unfair that a Judge, by accepting the position, should be deprived of the right of vindicating his character by an action against the slanderer, and that no authority could be found to justify such a deprivation. It was not denied, as indeed it could not well be, that there were grave reasons against the resort by a Judge to such an action.
His Honour denied that there was a "dual remedy" [101] :
I proceed to the view, urged upon us by the defendant, which has most strongly impressed my mind. It is that an aspersion of this kind is a libel on the administration of justice - upon the tribunal - and must be regarded by the Judge in that light; one to be dealt with in his judicial capacity alone; that the personal wrong is (if I may use the expression) absorbed in the offence against the public.
1. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 336.
2. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 337.
3. Troughton v McIntosh (1896) 17 NSWR(L) 334 at 338.