R v Taylor; Ex p Roach [1951] HCA 22

High Court of Australia Dixon, McTiernan, Webb, Fullagar and Kitto JJ. R v Taylor; Ex p Roach [1951] HCA 22

ORDER Motion refused with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 10 Dixon, Webb, Fullagar and Kitto JJ.

This is an application to the Full Court pursuant to rule 7 of s. 1 of the Appeal Rules for an order for a writ of 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.

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.