R v Dunbabin [1935] HCA 34; (1935) 53 CLR 434 (29 May 1935)

The Court is called upon to exercise its summary power of punishing contempts of Court. This jurisdiction, which is well established and belongs to this Court as well as to the Supreme Courts of the States, exists for the purpose of preventing interferences with the course of justice. Such interferences may arise from publications which are calculated to embarrass a tribunal in arriving at its decisions. Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court's judgments because the matter published 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 the judicial office. The jurisdiction is not given for the purpose of protecting the Judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained. The cases are collected and the principles expounded in the judgment of Evatt J. in R. v. Fletcher; Ex parte Kisch[1] The necessity of maintaining the authority of this Court against such attacks is, perhaps, even greater than in the case of Courts under a unitary system of government. It is the constantly recurring task of this Court to decide upon the validity of the enactments of one or other of the seven Governments of Australia. Thus the Court occupies a position which makes any tendency to weaken its authority a matter of especial concern.

In the case before us, we have a publication which, in my opinion, involves a clear contempt. Its whole tendency and, I think, object is to disparage the authority of the Court and to weaken confidence in it. The article begins by alluding to two decisions recently given by the Court in which executive action by two departments of the Commonwealth Government was held to be erroneous. The reference is made under the heading "Courts and Cabinets" and is unmistakably directed to a supposed opposition between the Executive and the Court. In the one case, that relating to the Immigration Restriction Act, it represents the Court as putting into a state of "suspended animation" "the law which was relied upon to keep Australia white." It represents it as doing so by the exercise of "keen legal intelligences" and of so deciding "to the horror of everybody except the Little Brothers of the Soviet and kindred intelligentsia." The writer appears to be confused between two cases, that of Kisch which he mentions by name, and that of Griffin to which he probably intended to refer. He recommends that Kisch should be given another opportunity of seeing whether a new Act which the writer contemplates "pleases the High Court any better than the old, or whether the ingenuity of five bewigged heads cannot discover another flaw." The article then proceeds to refer to the second decision, that holding that secondhand goods were not liable to sales tax. The writer describes this conclusion as something discovered after over four years by the Court "with that keen microscopic vision for splits in hairs which is the admiration of all laymen." The tone in which these matters are discussed is not that of informed or reasoned criticism but of sarcastic suggestion. The article then proceeds: "Well may the Caseys and the Kellys cry like the historic British monarch for some gallant champion to rid them of this pestilent Court." As appears by the article itself, the reference to "Caseys" is to the Assistant Treasurer, who, an earlier part of the article states, "complains of the manner in which the High Court knocked holes in the Federal laws." According to the evidence, the expression "and the Kellys" was introduced because of a paragraph appearing in the same newspaper a fortnight before in which the Assistant Treasurer's refusal to refund sales tax on secondhand goods was likened to an action of the bushranger of that name. The article then proceeds to make a suggestion that as an alternative to getting rid of the Court it should be given some "real work to do" so that it should not have "time to argue for days and days on the exact length of the split in the hair." The suggestion, stated briefly and stripped of decorative verbiage, was that, prior to its enactment, legislation should be submitted to the Court for judicial approval. The writer, clearly intending to refer to the decision of this Court of In re Judiciary and Navigation Acts[2], states: "There was some attempt years ago to obtain a Court opinion on an Act before it was put to public test, but the Judges coldly suggested that the only way to test it was by action before the Bench."

I have not stated all that the article contains, but these, I think, are the more material matters. An endeavour has been made to explain the article as intending to ridicule, not the Court, but those opposing its decisions. Except for the absence of anything to indicate sincerity of purpose, the article contains nothing to support the suggestion of irony. I think the effect of the article, as well as its purpose, is to represent that the Court exercises its ingenuity in order to defeat legislation to which great public importance attaches and that the Federal Government encounters in the Court an obstacle it might well seek to remove. This is combined with a suggestion that one of its decisions pleased no one but the "Little Brothers of the Soviet." Such imputations, if permitted, could not but shake the confidence of litigants and the public in the decisions of the Court and weaken the spirit of obedience to the law.

Judges are not at all likely to be deterred from administering justice according to law by expressions which appear in the public press or elsewhere of displeasure at the consequences. Probably no one doubts or questions that fact. But, if it were not so, the publication of such an article might well be regarded with apprehension by a party to a case pending before the Court if it involved a doubtful and difficult question the decision of which in his favour would result in inconvenience and embarrassment to the Executive Government. It is upon this footing that the present applicant moves the Court. Groundless as may be the fear that the article could affect the Court's decision of her case, it is not possible to say that, as a party to pending litigation of that character, she is not entitled to bring the article before the Court. Indeed the Court may act ex mero motu, and it has been held that the Court may be put in motion by a person who has no particular interest in the contempt complained of (R. v. Henningham[3]; R. v. Ellis; Ex parte Baird[4]).

I think the Court is bound to regard the publication as a serious contempt which it must repress. In my opinion the respondents should be convicted of contempt.

Motion on the part of one Dulcie Williams that Thomas Dunbabin and the Sun Newspapers Ltd. be dealt with for contempt of this Court.

The contempt relied upon is publishing a leading article in the Sun newspaper, of which Dunbabin is the editor. The article is calculated, it is said, to interfere with the due administration of justice in an appeal brought by the mover and pending in this Court and in which judgment has been reserved. But I regard this allegation as frivolous: there is no fear of the article in any way interfering with the due determination of the appeal or of any prejudice to the mover such as would justify the Court interfering by the summary and arbitrary process of contempt.

It is also said that the article scandalizes the Court. Any act done or writing published calculated to bring the Court into contempt or to lower its authority is a contempt of Court (R. v. Gray[5]). According to the Judicial Committee in McLeod v. St. Aubyn[6], committals for contempt of Court by scandalizing the Court have become obsolete in England. But modern examples of the exercise of this undoubted jurisdiction may still be found. (See R. v. Gray[7].) Courts and Judges "are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court" (R. v. Gray[8]). Ordinarily, Courts are satisfied to leave to public opinion attacks derogatory or scandalous to them (McLeod v. St. Aubyn[9]). The summary jurisdiction in this class of case should only be exerted when the case is clear and beyond doubt; otherwise the Courts should leave the matter to the process of the criminal law. The policy of allowing the Courts to determine what does or does not scandalize them may be doubted. But whilst the jurisdiction exists, they must exert it, not because "of any exaggerated notion of the dignity" of Courts, but for the "common good." All this is well settled, and is, indeed, only repetition of what English Judges have said.

The article in the present case clearly and beyond doubt is calculated to bring the Court into contempt and to lower its authority. And I regret that the respondents to this motion are so obtuse that they can discover nothing in the article which amounts to contempt of the Court: the article is regarded by them as unseemly and rude and for that regret is expressed, but otherwise it is regarded as innocent and only to be regretted if the Court decides that it amounts to a contempt of Court. But despite the attitude of the respondents, the "common good" and the "authority of this Court" will, in my opinion, be sufficiently vindicated, in this summary and arbitrary process, if the article is declared a contempt of this Court and that the respondents do pay the costs of the motion.

Beyond this, the Court should, as the Judicial Committee wisely indicated in McLeod v. St. Aubyn[10], leave to public opinion the reprobation of attacks or comments derogatory to or scandalizing it; or in serious cases leave to the proper authorities the vindication of the Court by the ordinary process of law, and not by the summary and arbitrary process of contempt. No prejudice or possible prejudice of any litigant's rights is involved in the present case, and no repetition of the article need be apprehended.

In these circumstances, I regard the fines proposed to be imposed upon the respondents not only as unwise, but as unnecessarily severe, and uncalled for in the public interest.

I agree for the reasons given by Rich J. that the article published contains a contempt.

The jurisdiction which we are called upon to exercise is one which cannot but be attended with some difficulty.

It is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority. But it must be done by judicial remedies, and judicial remedies are necessarily administered by the Courts themselves. The Court must, therefore, undertake the task notwithstanding the embarrassment of considering what it should do in relation to an attack upon itself. There is no practicable alternative. It can but do its best to disregard all considerations except those which strictly relate to the question whether the publication amounts in law to a contempt. That question is whether, if permitted and repeated, it will have a tendency to lower the authority of the Court and weaken the spirit of obedience to the law to which Rich J. has referred.

The article in this case, upon a close analysis, presents one difficulty. It inspires a feeling that its real purpose has not been fully disclosed. It is difficult to discover the reasons which animated its publication. But, whatever be the reason for the article, I am confident that any ordinary reader who read it would deduce from it that it charged the Court with a wanton destruction of legislation effected by the exercise of excessive legal ingenuity.

The question what, in these circumstances, the Court should do is naturally one for anxious consideration. It should, in my opinion, fix a penalty adequate to make it abundantly clear that such publications will be repressed. It should, at the same time, make it clear that it has not the least intention of repressing any criticism which may be made on the Court and its doings and the law it administers if that criticism is fair and honest and is not directed at lowering the authority of the Court. It is important that Courts should be the subjects of free criticism. It is equally important that the dignity and authority of the Courts should be maintained. It is the reconciliation of those two principles that involves the difficulty.

I think that, if a repetition of the kind of imputations made in the present case were allowed, public confidence in the Court would in the end be undermined.

I think the Court should impose a penalty which affords a definite indication of its view that the publication of such matters as this will not be allowed.

The order of the Court is:—The Court orders and adjudges that the respondents are guilty of contempt; that the respondent company be fined £200 and the respondent Dunbabin £50. The Court also orders the respondents to pay the costs of these proceedings.

[1] [1935] HCA 1; (1935) 52 C.L.R. 248, at pp. 257, 258.

[2] [1921] HCA 20; (1920) 29 C.L.R. 257.

[3] (1869) Mac. (N.Z.) 712.

[4] (1889) 28 N.B.R., at p. 520.

[5] (1900) 2 Q.B. 36, at p. 40.

[6] (1899) A.C., at p. 561.

[7] (1900) 2 Q.B. 36.

[8] (1900) 2 Q.B. 36, at p. 40.

[9] (1899) A.C. 549.

[10] (1899) A.C. 549.

High Court of Australia

R v Dunbabin [1935] HCA 34; (1935) 53 CLR 434 (29 May 1935)

HIGH COURT OF AUSTRALIA