R v Taylor; Ex parte Roach [1951] HCA 22; (1951) 82 CLR 587 (10 May 1951)

HIGH COURT OF AUSTRALIA

THE KING v. TAYLOR; Ex parte ROACH [1951] HCA 22; (1951) 82 CLR 587

Industrial Arbitration (Cth.)

High Court of Australia
Dixon(1), McTiernan(2), Webb(1), Fullagar(1) and Kitto(1) JJ.

CATCHWORDS

Industrial Arbitration (Cth.) - Stevedoring industry - Award - Application by members of union for variation - Strike of members - Hearing of application adjourned - Undertaking by union official - Attack on judge by official - Contempt of Court - Power of Arbitration Court to punish for contempt - Functions - Judicial - Arbitral - Prohibition by High Court - Commonwealth Conciliation and Arbitration Act 1904-1949 (No. 13 of 1904 - No. 86 of 1949), ss. 17, 25, 59, 60, 62, 119 - Stevedoring Industry Act 1949 (No. 39 of 1949), ss. 49, 50.

HEARING

Sydney, 1951, May 2, 3, 10. 10:5:1951
MOTION.

DECISION

May 10.
The following written judgments were delivered:-
DIXON, WEBB, FULLAGAR and KITTO JJ. This is an application to the Full Court prohibition directed against the judges of the Commonwealth Court of Conciliation and Arbitration and the Industrial Registrar. An application for an order nisi was refused by Williams J. The application to the Full Court was made upon notice and it is desired by the respondents to the motion that the motion to the Full Court should be treated, as we understand it, as an application for a rule absolute in the first instance. (at p596)

2. The tenor of the writ sought is to prohibit the Arbitration Court from proceeding further upon two orders made on 1st March 1951. The orders found the prosecutor guilty of two several contempts of the Arbitration Court and sentenced him to terms of twelve months' imprisonment concurrent. Each order was made upon a summons calling upon him to answer a charge that he had been guilty of contempt, in the one case, in that between 3rd and 13th January 1951 he caused to be published a circular and, in the other case, in that on 13th January 1951 he caused to be published matter in a newspaper named "The Maritime Worker", which circular and matter were intended and calculated to embarrass the Arbitration Court in arriving at its decisions, to detract from the authority and influence of its judicial decisions, to lower the authority of the Court as a whole and that of its judges, to impair the confidence of the people in the Court's judgments, and to cause misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office of the Court in matters litigated before it. The circular contained an attack upon one of the judges of the Arbitration Court who had been sitting in the exercise of the jurisdiction conferred upon the Court by the Stevedoring Industry Act 1949, Part V. It appears that the learned judge had had before him an application to vary the award which concerned the Waterside Workers' Federation in consequence of the decision pronounced on 12th October 1950 by the Full Court of the Arbitration Court with reference to the basic wage. His Honour, on being informed that a particular branch of the union was on strike, refused to continue the hearing of the application and adjourned it until 18th December 1950. On that date the prosecutor, who was the assistant general secretary of the union, gave an undertaking that the branch would resume work forthwith and abide by the decision of, and continue to work in accordance with the conditions to be determined by, the local representative of the Stevedoring Industry Board. The undertaking was accepted and the learned judge gave his decision. On 4th January 1951 a summons was served upon the prosecutor requiring him to appear on 11th January before the learned judge to answer a charge of contempt in relation to the undertaking. The prosecutor caused the circular to be issued on 5th January. It is unnecessary to say more concerning the circular than that it contained an unrestrained attack upon the judge for the decision he had delivered on 18th December and for the course he had taken. It imputed an intention to intimidate the prosecutor and the executive of his union as well as other improper motives and it concluded with a reference to the proceedings against the prosecutor for contempt, which it described as a diversionary issue. The article in the newspaper of 13th January repeated the circular and added other matter to it. (at p597)

3. The writ of prohibition is sought upon the ground that the jurisdiction of the Arbitration Court does not extend to punishing as contempts attacks made upon the members of the Court in respect of the exercise of their arbitral powers as distinguished from their judicial powers. The Stevedoring Industry Act 1949, Part V, confers upon the Arbitration Court, as such, power to prevent or settle by conciliation and arbitration industrial disputes extending beyond the limits of any one State in connection with stevedoring operations. It also confers upon the Arbitration Court power to regulate industrial matters in connection with stevedoring operations in so far as the operations relate to trade and commerce with other countries and among the States or are performed in a Territory. The powers given by Part V are to be exercised by a single judge. The Court is not limited to the matters specified in s. 25 of the Commonwealth Conciliation and Arbitration Act 1904-1949. Sections 49 and 50 of the Stevedoring Industry Act made applicable provisions of the Commonwealth Conciliation and Arbitration Act. (at p597)

4. Section 17 (3) of that Act provides that the Commonwealth Court of Conciliation and Arbitration shall be a superior court of record. It is in virtue of its status as a superior court of record that the Arbitration Court has exercised a summary power to punish for contempt. The question whether the result of s. 17 was that the Court possessed such a jurisdiction was considered in R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union [1951] HCA 3; (1951) 82 CLR 208 , and although the decision of the majority of this Court was that the special provisions contained in ss. 59, 60, 62 and 119 operated as special enactments dealing with the particular question of the enforcement of orders and awards and so excluded the existence of a power to punish for contempt as a concurrent or alternative means of enforcing orders, it was not denied by any of the judges of this Court that, apart from the implications of such particular provisions, a general power of punishing contempt ensued as a consequence of the posession by the Arbitration Court of the status of a superior court of record. The question is not whether it is part of the meaning of s. 17 to invest the Arbitration Court with a summary jurisdiction to punish for contempt. What the legislature meant to do by s. 17 (3) was simply to establish the Court as a superior court of record. In other words, it is not a question of legislative intention but of the legal consequences of giving a court such a status. The common law gives to a superior court of record power to punish summarily for contempts of its judicial authority. Contempt of court, other than what is called contempt in procedure, is a misdemeanour at common law and, according to ancient authority, it is an offence punishable on indictment: Hawkins, Pleas of the Crown, 8th ed. (1824), Book 1, Ch. 6, s. 8, vol. I., p. 63; Book 2, Ch. 25, s. 4, vol. II., p. 289: Skipworth's Case (1873) LR 9 QB 230, at p 233 . But the offence may be punished summarily by a superior court of record, for it is considered necessary to arm such a court with a prompt and summary power of maintaining its authority. "A Court of Justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are entrusted to its care, would be an anomaly which could not be permitted to exist in any civilized community": Oswald on Contempt, 2nd ed. (1895), p. 11. But the offence by its very nature is concerned with judicial power. "It is a summary remedy for obstructions in the course of justice and causing the process of the law to be obeyed": per Parke B., Miller v. Knox [1838] EngR 648; (1838) 4 Bing (NC) 574, at p 614 [1838] EngR 648; (132 ER 910, at p 925) . By definition contempt is confined as an offence to courses of conduct prejudicial to the judicial power and does not extend to impairments of other forms of authority. Obstructions to the exercise of executive power, administrative power, legislative power or other governmental power are not within the conception of the offence of contempt of court. This distinction was made in Ex parte Brown [1864] EngR 447; (1864) 5 B & S 280 (122 ER 835) , between the two capacities in which the House of Keys of the Isle of Man sat, legislative and judicial, and it was held that reflections upon it in the former capacity were not punishable as contempts. Accordingly it is contended for the prosecutor that the publications in respect of which he has been convicted for contempt were not within the conception of that offence because they related entirely to the arbitral or industrial functions of the Court and to the manner of the exercise of such functions by the learned judge upon whom the publication reflected. (at p599)

5. The form of contempt which is in question in the present case is that often called scandalizing the court. In the Practical Register in Chancery quoted by Patteson J. in Miller v. Knox (1838) 4 Bing (NC), at pp 593, 594 (132 ER, at p 918) it is said: "A contempt is a disobedience to the Court or an opposing or despising the authority, justice, or dignity thereof. It commonly consists in a party's doing otherwise than he is enjoined to do, or not doing what he is commanded or required by the process, order, or decree of the Court. Sometimes it arises by one or more; their opposing or disturbing the execution or service of the process of the Court, or using force to the party that serves it; sometimes by using words importing scorn, reproach or diminution of the Court, its process, orders, officers, or ministers, upon executing or serving such process or orders." (at p599)

6. The publications in the present case are directed to undermining the authority of the Arbitration Court, and though they arise out of the exercise by a member of the Court of the industrial or arbitral powers of the Court, they reflect upon him as an occupant of the office of judge of the Court and "import scorn, reproach or diminution of the Court". The legislation establishes a court to which jurisdiction is given forming part of the judicial power of the Commonwealth and to which an authority of an entirely different character is given falling outside the judicial power of the Commonwealth and derived under an exercise of the legislative power conferred by s. 51 (XXXV.) of the Constitution. There is thus combined a double power in one office. It is evident that the distinction upon which the prosecutor's application for a writ of prohibition depends is one which may be difficult to maintain when imputations are made upon the conduct or character of a judge occupying an office in which these diverse functions are combined and the tendency of the imputations is to impair confidence in the administration of his office. In the present case, although the occasion of the attack arises out of the exercise by the judge of his industrial functions, the attack is associated with an intended exercise by him on the jurisdiction forming part of the judicial power of the Commonwealth, namely, the jurisdiction to entertain an application to commit for contempt in breach of the undertaking. Moreover, the imputations made upon the learned judge go to his qualifications for exercising any part of the functions attached to his office. The attack is violent and makes imputations upon him calculated to undermine confidence as much in the exercise of the judicial power belonging to his office as in the industrial or arbitral power and to weaken the authority of the Court in both aspects. Conceding, therefore, the validity of the distinction which is sought to make on behalf of the prosecutor between what is a contempt of the judicial power and what concerns other kinds of power, the case is nevertheless one in which it was competent for the Arbitration Court to find in the publications a contempt against the administration of justice, that is to say, the exercise of the judicial power of the Arbitration Court. We are dealing here with an application for a writ of prohibition, and the question whether the writ should go or not must depend upon the existence of a jurisdiction in the Arbitration Court to make the orders complained of. (at p600)

7. In our opinion the Court of Conciliation and Arbitration had jurisdiction to make the orders which it is sought to prohibit and the motion is therefore refused. (at p600)

McTIERNAN J. The applicant claims a writ of prohibition in respect of two orders of the Commonwealth Court of Conciliation and Arbitration. By each of these orders the applicant is found guilty of a contempt of that Court and sentenced to a term of twelve months' imprisonment. The sentences are made concurrent. The orders were made on 1st March 1951 and the applicant is detained in gaol under the authority of the two orders. (at p600)

2. The ground of the present application is that each order is beyond the jurisdiction of the Commonwealth Court of Conciliation and Arbitration. The summons upon which each order was made professes to charge the applicant with contempt of the Commonwealth Court of Conciliation and Arbitration and each order professes to find him guilty of that offence. The ground upon which the applicant challenges the jurisdiction of the Court is that the matters which the Court found to be contempt of the Court are not within the legal definition of the offence. The respondents to the motion joined issue with the applicant upon that ground and were content that the decision of the question raised by it should determine the result of this application. They raise no point whether the ground relied upon by the applicant is a good ground for prohibition. (at p601)

3. What the Court found to be contempt of court were two publications, for which the applicant was responsible, of statements impugning the integrity of a judge of the Commonwealth Court of Conciliation and Arbitration and accusing him of improper conduct in connection with a matter within his jurisdiction as a judge of the Court. The jurisdiction of the judge is a combination of judicial and arbitral powers. It is urged for the applicant that the matter fell within his arbitral powers and this is a sufficient consideration upon which to deny that the publications were contempts of court. The view that the judge was dealing with a matter entirely within his arbitral powers may need some qualification before it is accepted. But the view may be accepted for the purpose of considering the applicant's submission which is that the publications were not contempts of the Commonwealth Conciliation and Arbitration Court. The submission invites this Court to consider only the occasion in reference to which the publications were made, and, if it was not an occasion on which the judge was exercising judicial powers, to hold that the publications were not contempts of court, notwithstanding their meaning, intent and tendency, matters which were not contested by the applicant. The published statements make no nice distinctions between judicial and arbitral powers. Whatever were the particular powers that the judge was exercising on the occasions to which the statements apply, it is important to notice that he was exercising jurisdiction vested in him as a judge of the Court. An attack impugning the integrity of his conduct in connection with a matter which was to be the subject of an administrative order could not fail to reflect in some way upon the Court. The attack made upon the judge in these publications is so gross and outrageous that the Commonwealth Court of Conciliation and Arbitration could not possibly be in error in holding that its tendency was to destroy confidence in the Court, assails its authority, and bring scorn on a judge of the Court. This conduct is contempt of court. In these proceedings it is sufficient to say that the Commonwealth Court of Conciliation and Arbitration could reasonably reach that conclusion. By s. 17 (3) the Commonwealth Court of Conciliation and Arbitration is made a Superior Court of Record. The consequence of this provision is that it has jurisdiction to punish the applicant for the contempt: Metal Trades Case (1951) 82 CLR 208 . (at p602)

4. The application should be refused. (at p602)

ORDER

Motion refused with costs.