R v Dunbabin [1935] HCA 34

Cons Teton ei,

Colina, Re;

Torney (1999) PRD TS

434 HIGH COURT [1935.

(HIGH COURT OF AUSTRALIA.}

THE KING

AGAINST

DUNBABIN AND ANOTHER ;

Ex parte WILLIAMS.

H.C. or A, Contempt of Court—High Court—Publication disparaging Court—Calculated to impair

1935, public confidence—Right of person indirectly concerned to bring the matter before a Sa the Court, Sypyey,

May 28, 39, 'Any matter is a contempt of Court which has a tendency to deflect the Court als: from a strict and unhesitating application of the letter of the law or, in questions Bich, Starke, of fact, from determining them exclusively by reference to the evidence. and M Interference with the course of justice amounting to a contempt of Court 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. A party to pending litigation of the character referred to, even in general terms, in such a publication is entitled

to bring the publication before the Court, which may also act ex mero motu.

Principles stated in R. v, Fletcher ; Ex parte Kisch, (1935) 52 O.L.R. 248, approved.

Morton ror Commrrrat,

An application was made by way of motion under rule 2 of Order XLIX. of the High Court Rules before Hvatt J. by Dulcie Williams that Thomas Dunbabin and Sun Newspapers Ltd., the editor and proprietor respectively of the Sun newspaper, Sydney,

53 C.L.R.] OF AUSTRALIA.

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