R v Dunbabin [1935] HCA 34

R v Dunbabin [1935] HCA 34 - HCA 1935 case summary — Zoe

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be committed to prison or otherwise punished for contempt of the High Court in publishing in the issue of that newspaper of 13th April 1935 a leading article which, it was alleged, (a) tended to prejudice the applicant in an appeal then pending before the High Court ; (b) constituted a serious attack on the Court; (c) tended to scandalize the Court and was an attempt to overawe or intimidate the Court by insult and defamation and was calculated to deter actual and prospective litigants from complete reliance upon the Court's administration of justice; and (d) was specially calculated so to deter actual or prospective litigants who bring before the Court any question of the constitutional validity of any Common- wealth legislation. The applicant was a party to an appeal heard by the Court in March 1935, which involved a consideration of Commonwealth legislation in respect of the control and regulation of wireless generally and in particular the power of the Common- wealth to impose licence fees in connection therewith. Judgment in that appeal was reserved, and had not been delivered at the time of the hearing of this application. The article complained of was headed " Courts and Cabinets" and was as follows : - '' Some time ago the Assistant Treasurer (Mr. Casey) complained of the manner in which the High Court knocked holes in the Federal laws. Those laws have certainly been perforated by the keen legal intelligences of the High Court Bench. One of the results of this game (a very expensive game for the taxpayers) is that the law which was relied upon to keep Australia white is in a state of suspended animation. A noted Czechoslovakian author, whose books nobody appears to have read, arrived in Australia recently, very much against the will of the Government, which considered that his literary excellence (like that of a number of classic books) did not entitle him to breathe the pure air of the Commonwealth. Jumping ashore, and spraining his ankle in the process, he was promptly put in gaol under the Act which gave the Government the right to keep undesirables out. Friends of the humble and oppressed tested the law, and to the horror of everybody except the Little Brothers of the Soviet and Kindred intelligentsia, the High Court declared that Mr. Kisch must be given his freedom. We all, of course, ought to thank this distinguished literateur for his discovery of a flaw in one of our most

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another flaw. Upon another and more recent occasion, though it { was declared by the representative of the party which passed an Act that his intention was to include secondhand dealers in the provisions of the sales tax, the High Court, with that keen, micro- scopic vision for splits in hairs which is the admiration of all laymen, discovered that they were not included, and that a tax had been illegally collected for over four years. Well may the Caseys and the Kellys ery, like the historic British monarch, for some gallant cham- pion to rid them of this pestilent Court. Perhaps there is a better way. Ifthe High Court were given some real work to do the Bench would not have time to argue for days on the exact length of the split in the hair, and the precise difference between Tweedledum and Tweedledee. Before responsible government began in this great country, with its joyful concomitants of income tax, land tax, sales tax, entertainment tax, wages tax, and other means of keeping the world safe for bureaucracy, the Chief Justice used to be required to certify that the laws of New South Wales were 1 not repugnant to the laws of Britain. Once he had let them i pass it was no use for hair-splitting lawyers to come to him for interpretations on the legality of the Acts. Some of these days i a commonsense Government may tell the High Court that, as it has very little useful work to do, it will be required to examine the Acts which will be sent to it straight from the Legislature, to stamp O.K. upon them, or to suggest amendments which will make them thoroughly legal, as the case may be, and then return them by swift messengers for the Vice-Regal signature. In this way such contre- temps as those centred about Messrs. Kisch and Solomon Secondhand will be avoided, and there will not be any heavy legal costs to help boost the deficits and give excuses for the politicians to slip new taxes on us all. Of course, no Government will ever dream of forcing the Judges of the High Court to touch up their bills. There was some attempt, years ago, to obtain a Court opinion on an Act before it

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was put to public test, but the Judges coldly suggested that the only way to test it was by action before the Bench. To make Court and Parliament co-operate in putting out brass-bound, watertight legislation would be such a logical step forward that no Anglo-Saxon community would tolerate it. It would not be right for a Cabinet to tell the Court in conference what it meant by a phrase or a clause. The only way to find that out is to have a squad of King's Counsel arguing about it for a few weeks. Still, King's Counsel have to live, and we must do nothing to curtail their opportunities." In an affidavit sworn by him on behalf of the applicant a solicitor stated that the respondent company was controlled by Associated Newspapers Ltd., which, in turn, had a controlling interest in Radio 2UE Sydney Ltd., a company which conducted and held a licence in respect of 2 UE Broadcasting Station, and therefore the respondent would probably be affected by the decision of the Court in the applicant's appeal heard in March 1935 ; and that the applicant was one of the class of persons referred to in ground (d) shown in the notice of motion. The secretary of the respondent company stated in an affidavit that Associated News- papers Ltd. had no interest in Radio 2 UE Sydney Ltd., but that half of the shares of the latter company were held by the respondent company, the general manager and a director of which company were also two of the four directors of Radio 2 UE Sydney Ltd. ; that details of articles such as the one complained of were left to the editorial staff and were not known to the members of the board of directors ; that the members of the board had instructed him to apologize if the Court felt that the language used was so disrespectful that an apology was called for by reason of the language, and, without any admission in regard to the question of whether the article amounted to the offence of contempt, to apologize for any appear- ance of the suggestion that the Court did other than impartially decide all questions brought before it by litigants. The editor, and the associate editor, who wrote the article, each stated on affidavit - "'On reading the . . . article after the institution of the present proceedings, I realize that the language used is not properly respectful and without making any admission of the offence of contempt I apologize for it; and I apologize and express regret

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that the two main ideas intended, namely to call attention to unnecessary litigation by reason of defective draftsmanship and to laugh at any possible suggestion that Courts should be lightly abolished was liable to misconstruction. I had no intention of in any way influencing this Honorable Court nor was I paying any attention to the desirability or undesirability of the present Federal legislation as to broadcasting nor had I any intention of influencing actual or prospective litigants," and that at the time the article was written, edited and published he did not have in mind either the proceedings in which the applicant was interested, or Radio 2 UE Sydney Ltd., nor did it occur to him that that company would be in any way affected by a decision in those proceedings. In answer to questions submitted on behalf of the applicant in lieu of interrogatories, the editor further stated that the article was not written as the result of a direction to the writer, nor as part of the policy of the respondent company in its attitude towards the High Court; that by the use of the words "the manner" he, as representing the editorial staff, for which he admitted responsibility, intended to represent that it was a public matter of regret that the drafting of Federal legislation so frequently occasioned its being interpreted as not effecting the real wishes of the nation ; that the reference to the Assistant Treasurer's complaint was based upon certain utterances made by him to a deputation which had waited upon him with reference to sales tax on second- hand goods, as reported in the Sydney Morning Herald newspaper of 28th March 1935; that the passage " well may the Caseys and the Kellys cry, like the historic British monarch, for some gallant champion to rid them of this pestilent Court " referred to the expres- sion used by Henry II. in reference to the priest Thomas a' Beckett, and the whole paragraph was intended to ridicule any suggestion of doing away with so necessary an institution as the High Court as being such a suggestion as would be entertained by lawless people ; that the foundation for the statement that the declaration of the High Court giving Mr. Kisch his freedom was received "to the horror of everybody except the Little Brothers of the Soviet and kindred intelligentsia " was the general impression that conservative persons did not wish for the entry of Mr. Kisch into Australia and

At a glance

Court

Decision date

Before

Source

Judgment (65 paragraphs)