R v Nicholls [1911] HCA 22

one knows that the Unions do encourage all sorts of we things. Assuming, as we may assume, we think, that ant the Ministry, we find ourselves impelled to remark fact that a Judge, a superior Judge too, should admit ven a Ministry or a Government is superior to him in rcise of his judicial functions. As we and most people tand the matter, a Judge on the Bench in the exercise of ial functions has no superior, and if a Government has wrong in a public manner, there is no reason why the fact id not be stated, and it might even form a reason for a decision in a case. In fact, it is conceivable that the tion of a Minister might be a reason for a special decision, and, ainly, of special remarks, not only by counsel, but by the too. Mr. Justice Higgins thinks not, and has no ublance to the Judge who did not hesitate to deal with a e of Wales in an exemplary mannner, and who has had applause ever since. 'The time may not be far distant, pose, when we shall not be allowed to speak ill of the , for that is above all. From another point of view, we be disposed to exclaim with Maria, in ' Twelfth Night' : - yu, an you speak ill of the devil, how he takes it to

ice was given pursuant to Order XLIX., r. 2, of the Rules High Court, on behalf of the Attorney-General of the mwealth to Henry Richard Nicholls editor of The Mercury, the High Court would be moved that Nicholls should be to stand committed to prison for his contempt of the 1 Court, or in the alternative for his contempt of the Com- th Court of Conciliation and Arbitration, in printing iblishing the above article concerning Mr. Justice Higgins apacity as a Judge of the High Court or in the alternative capacity as President of the Commonwealth Court of liation and Arbitration, and that Nicholls should be ordered the costs of the motion and of the order to be made

een levelled at it openly in Court for the first time, and H. C. or A.

shorthand writer's note of the incident which took place in Commonwealth Court of Conciliation and Arbitration to y reference was made in the article. The note so far as mater was as follows : - '

"Mr. Starke. - Of all the labour organizations I have ever h of Broken Hill and that field seem to be the strongest and abo the most tyrannous I have ever heard of. They not only do n do their work but they break their agreements with impun and they are encouraged by their Unions and by the Governmer of this country.

" Higgins J. - I will not allow you to speak in that way of tl

" Higgins J. - You are not entitled to speak base those above us.

" Higgins J. - If that is not disrespectful I do not know wl 18,

"Mr. Sturke. - I spoke of the tyranny of these Union: Broken Hill.

" Higgins J - I will not allow you to speak in that form Government of the country and those above us. If you do comply with my rules you will leave the Court."

Counsel did not argue as to the alleged contempt of the O monwealth Court of Conciliation and Arbitration.

Weigall K.C. (with him Gregory), for the Crown. The first

that his judgments are affected by political subserviency is a contempt of Court.

([Grirrira C.J. - A Judge is as much open to be libelled anybody else. The libel may or may not be justified. although a publication concerning a Judge may be libellous, it |

with the course of justice or the due administration of In the mutter of a Special Reference from the Bahama DI :

ing calculated to interfere with the due course of justice : yy (2). This case is within the former class. It is an

ion of political subserviency and bias. Its probable effect

xcite a general dissatisfaction with the learned Judge's ns.

yConnor J. - In McLeod v. St. Aubyn (3) it was stated that

tions for contempt known as scandalizing a Judge had

his publication, if it were believed, would be likely to lessen

hey also referred to R. v. Almon (4); In re "The Evening

Arthur, for Nicholls, stated that Nicholls admitted that, in is the first two sentences of the article might convey the that Mr. Justice Higgins owed his appointment to a ar Government, they were inaccurate, and he withdrew them essed his regret for their publication. The article does ount to a contempt of Court.

Grirrira C.J. delivered the judgment of the Court. This ion asks for the committal of the respondent for his contempt his Court or, in the alternative, for his contempt of the monwealth Court of Conciliation and Arbitration, in respect e publication of an article in the Hobart Mercury of 7th The article is of some length. The text of it is an ode alleged to have taken place in the Arbitration Court of ch my brother Higgins is the President. Whether it is a ect report or not we do not know. That was the subject The article was prefaced by the heading "A Modest and began: - "Mr. Justice Higgins is, we believe, a

(4) Wilmot's Opinions, 243, at p. 255. (5) 1 N.S.W. LR, 211.

ntempt of Court unless it is caleulated to obstruct or H. C. or A.

political Judge, that is, he was appointed because he had wi served a political party. He, moreover, seems to know his po tion, and does not mean to allow any reflections on those to who he may be said to be indebted for his judgeship." The arti went on to refer to an episode in which it is suggested that 1 said that counsel was not entitled to speak disrespectfully "those above us," and to discuss the question whether the learned Judge meant by the words " those above us" the Government, the Broken Hill Unions, or the labour organization, or what called the "caucus." So that the subject of the article reference which the learned Judge had made to " those above

• if he said it - whatever that may mean, and which the took to mean the Government or the "caucus." If the appl tion which we have to deal with was in reference to that commen and the question were whether that comment was calculated bring the Arbitration Court into contempt, it would be nece: to consider the whole of the article carefully. But that part the motion is not pressed. Possibly the Attorney-General the difficulty of contending that this Court and the Arbitratio Court are the same. The application is now limited to the introductory sentences I have read. The proposition upon which Mr. Weigall relied is that publication calculated to bring a Judge into contempt or lower his authority is a contempt of the Court. He says th Higgins J. is a Judge of the High Court, that this publication calculated to bring him into contempt or lower his authority and, therefore, that the respondent is guilty of a contempt of the High Court. In my opinion this proposition cannot be suppor in the large sense which is contended for. Mr. Weigall reli upon the language by Lord Russell of Killowen, C.J., in Rey Gray (1) where he said : - * Any act done or writing publi calculated to bring a Court or a Judge of the Court into tempt, or to lower his authority, is a contempt of Court. That one class of contempt. Further, any act done or writing pub- lished calculated to obstruct or interfere with the due course justice or the lawful process of the Courts is a contempt of Cour The former class belongs to the category which Lord Hardwick (1) (1900) 2 Q.B.. 36, at p. 40.

md Huggonson), (1). That description of that class of con- is to be taken subject to one and an important qualification. and Courts are alike open to criticism, and if reasonable ment or expostulation is offered against any judicial act as ry to law or the public good, no Court could or would treat , as contempt of Court. The law ought not to be astute in | cases to criticize adversely what under such circumstances th such an object is published." regard to what Lord Hardwicke L.C. characterized as lalizing a Court or a Judge" it was pointed out by my O'Connor that in McLeod v. St. Aubyn (2) Lord Morris that prosecutions for that class of contempt are practic- obsolete in England. 'The article in question in Reg. v. (3) was of a very gross character, and the case might ell have been put under the other heading. In one sense, loubt, every defamatory publication concerning a Judge be said to bring him into contempt as that term is used in ww of libel, but it does not follow that everything said of calculated to bring him into contempt in that sense s to contempt of Court. That distinction was pointed out Committee of the Privy Council to which the question was d by the Secretary of State in 1892. 'The case is reported the matter of a Special Reference from the Bahama, Islands in that case a man had, in a letter published in a newspaper, the Chief Justice of a Colony to public ridicule in the manner, representing him as an utterly incompetent and a shirker of his work, and suggesting that it would providential thing if he were to die. The Board, consisting ven members of the Judicial Committee, did not give a judgment - it is not the practice in such cases to do so - reported that the letter complained of, though it might have made the subject of proceedings for libel, was not, in the neces, calculated to obstruct or interfere with the course tice or the due administration of the law, and therefore did titute a contempt of Court. That is the question to be

2 Atk., 469, at p. 471. (3) (1900) 2 Q.B., 36. 899) A.C, 549, at p. 561. (4) (1893) A.C., 138,

wacterized as 'scandalizing a Court ora Judge.' (Jn re H.C. or A.

determined in this case. Are these two paragraphs which I have read calculated to obstruct or interfere with the course o justice in the High Court or the due administration of the law by the High Court? I think it is impossible to answer that question in the affirmative. The words taken by themselves are capable of an innocent meaning and, when taken in conjunction with the rest of the article, they clearly refer to an episode which took place in the Arbitration Court.

It is said by Mr. Weigall that they suggest a want of impa tiality, but we do not find that in them, and I am not prepare to accede to the proposition that an imputation of want of impartiality to a Judge is necessarily a contempt of Court. the contrary, I think that, if any Judge of this Court or of a other Court were to make a public utterance of such character

or any class of suitors in the impartiality of the Court in matter likely to be brought before it, any public comment cima an utterance, if it were a fair eam would, so far fron

words are calculated to obstruct or interfere with the course justice or the due administration of the law in this Court. | being impossible to answer that question in the affirmative, order should be made upon the motion.

The respondent has very properly expressed his retell having used language which is said to be capable of bei

He has very properly withdrawn any such imputation. But ths of course, does not render him guilty of an offence which he h not committed. The motion will be dismissed.

Solicitor, for the Attorney-General, Charles Powers, Commo wealth Crown Solicitor.

Solicitors, for the respondent, Moule, Hamilton & Kiddle.