Macgroarty v Clauson

[1988] HCATrans 302

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B39 of 1988

B e t w e e n -

NEIL JOSEPH MACGROARTY

Applicant

and

THE HONOURABLE PAUL GLAUSON,

ATTORNEY-GENERAL FOR THE	MINISTER FOR JUSTICE AND
STATE OF QUEENSLAND

Respondent

Application for special leave

to appeal

WILSON J

DEANE J

MacGroarty

DAWSON .r

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 25 NOVEMBER 1988, AT 10.42 AM

Copyright in the High Court of Australia

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MR C.E.R. HAMPSON QC:  If it please the Court, I appear

in this matter with my learned friend,

MR M. O'SULLIVAN for the applicant.

(instructed by Robertson O'Gorman)

MR J.E. GALLAGHER, QC: If it please the Court, I appear

in this matter with my learned friend,

MR T.J. RYNNE for the respondent.

(instruced by the Crown Solicitor for Queensland)

WILSON J: Yes, Mr Hampson.

MR HAMPSON:  It is an application for special leave to

appeal from a decision of the Full Court of

Queensland handed down on 12 August 1988. The

applicant is a barrister of the Supreme Court

•	of Queensland who on 14 December 1987 was district court at Southport on a charge of convicted by a district court judge at the
contempt during a criminal trial. He was

fined $100 and on 21 March 1988 an appeal to

the Full Court was argued and by a majority
the Full Court dismissed that appeal on

12 August, as I have said.

Our submission is that a number of important

points arise here that have not been decided by

this Court previously. Primarily, the court

below .did not approach the question of how far the

applicant was entitled to go in trying to get on

the court record a submission on his client's

behalf. The affidavit of the applicant, which

appears in the appeal book,deals with the whole

incident, starting in paragraph 8 really, I think,

about page 19. It sets the background to the.

exchange, what part of the trial had been reached

and so forth. It starts in paragraph 8; he

points out that his cross-examination had not

gone for long when the exchange occurs.

,.

(Continued on page 3)

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MR HAMPSON (continuing):  He explains the relevance of his

cross-examination; the question of who·was invariably

doing the daily banking was highly important.

And he said:

The depositions of th~ committal hearing recorded

that the complainant Scott -

had agreed that the employee, Judy Moody, always

did that, contrary to what he was saying in the

.district ·'<:.ourt. So he said that:

It was absolutely necessary ..... that be

properly put to the jury -

and he was having difficulty with the witness not

accepting that there was that difference between

what he had said in the district court and what

he had said on the committal proceeding - the witness

being inclined to say, "Well, if you say it is

right" or "if it is in the depositions it must

be all right". He deals with that in paragraph 13;

his belief of the necessity of getting the witness
to make an unqualified and unequivocal concession

that the evidence differs. And then he says, in

paragraph 14:

It was against this background that the exchange

occurred between His Honour and myself that

led to my being cited for contempt.

15. This exchange is printed at page 30 of

the transcript. I disagree with the accuracy

of the transcript. I say the exchange is

correctly recorded as follows:-

And he sets it out:

MR MACGROARTY:  You accepted once again as

an answer? I will read it again ....

HIS HONOUR: Please don't read it again.

You have been cross examining for a long time

now.

MR MACGROARTY:  On an important matter,

Your Honour:

HIS HONOUR:  You have been going round and

.round and not getting down to the issues.

MR MACGROARTY:  With respect Your Honour that

is your opinion.

HIS HONOUR:  I have made my ruling.

MR MACGROARTY:  Your Honour in making the

ruling -

now this is what Mr Macgroarty says, in fact, was

said, but the shorthand writers missed it - the

underlined portion -

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Your Honour told the jury that my questions

were not relevant. some other point that relates to one of the

issues in this case.

MR MACGROARTY:	No. I am trying to make a
submission.

HIS HONOUR: Will you keep quiet while I am

speaking?

MR MACGROARTY: No, I won't.

He said he made notes of this afterwards, ·of the

actual transcript.

16.      I also say that when His Honour said,

"I have made my ruling; go on to some other

point ... " -

and I might interpolate here; that when one looks

at the transcript without the insertions that

Mr MacGroarty says occurred, there does seem to be a deficiency because there is nowhere ·it is

recorded precisely what His Honour's ruling is,

although he uses the word ruling.

WILSON J:  But you can hardly expect this Court on an

application for special leave to embark on an inquiry

as to whether additional evidence should be received.

It has been rejected by the Full Court.

MR HAMPSON:  No. That is not my point. My point

WILSON J: Surely, your case must be made on the basis of

the materials accepted by the Full Court?

MR HAMPSON:  Yes. I am saying that,. but what I am saying

in the background to this particular matter,

Your Honour, one has to get to the stage of what

was in Mr MacGroarty's mind because it is my submissicn

that the Full Court completely failed, in effect,

to deal with the matter on the basis that there

had been an unidentified charge, as it were, brought

against the barrister consistent with GILL.	One
had to have a look at the question of what was

in his mind and that is why I am turning to this

because this was never excluded in fact - what

was in his mind. Paragraph 16:

I also say that when His Honour said, "I have made my ruling; ..... " that His Honour shouted

the words ..... the demeanour on His Honour's

face -

showed that he was angry. And then he says in 17:

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My statement, "No, I won't" was intended to

indicate my refusal to go on to some other

point before fully stating my submission.

As His Honour again cut into my submission

saying the words, "Will you keep quiet while

I am speaking" I meant to indicate that I

wanted to finish my submission in spite of

his interruptions, whereupon I would have

moved on to some other point. The submission

that I intended to make was that His Honour

had no right to say in front of the jury that

I was not questioning Mr Scott on any of the

issues in the trial for the reason that the
defence contention was that the issue of who

did the banking -

and so forth, I have really dealt with that before.

He also says in paragraph 18:

that His Honour's -tone of voice when he said,

"I have made my ruling; go on to some other

point ..... " and "Will you keep quiet while

I am speaking" was in fact shouting.

And he says in 19:

After having been cited for contempt, I said

that I had nothing to say because I believed
that His Honour full well knew that I believed

I was entitled to complete my submission in the presence of the jury.

(Continued on page 6)

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MR HAMPSON (continuing):

I believed.my questions were relevant and

important I believe that His Honour's attitude

was stopping me from carrying out my duty to
my client.

Now, that is the issue from his point of view and

the only difference was the one that I identified,

the underlined part of the transcript so far as the

matter in the Full Court was concerned.

Now, we say that the question here is that it is

not just a question of whether the conduct of the applicant was wilful but the question that arises

goes to the more important question of how far

counsel may go, when he is trying to get an objection,

or the basis of his objection on the court record.	Now, the Full Court completely bypassed this issue
when deciding the appeal; that is to say, the majority of the Full Court certainly did, and it is a question
that was not raised, or does not appear to be relevant
in this Court's decision in LEWIS V OGDEN.

Other important points are concerned with the

non-following by the trial judge of the correct	procedures when convicting the applicant. If the
majority judgment be correct, we would submit that a barrister clearly stands in different · shoes to
any other citizen when he is before a court on a criminal or
quasi-criminal charge of contempt. This is a nov~l,
we would submit, proposition in Australian law and
there is no decision that we have been able to find,
that are to that effect.
The Court has the summary of our argument.	We

rely, of course, on what is said in the affidavit of

the applicant for special leave, which appears in

the appeal book commencing at page 54, what he

swears to there, but we would submit that special

leave should be granted first, because in this case,

the majority judgments are plainly wrong; that the

majority, which consisted of Mr Justice Matthews'
Mr Justice Dowsett, he merely said that he concurred	decision, not a separate judgment from
with Mr Justice Matthews' decision. The written
reasons of Mr Justice Matthews clearly ignored the principles laid down by this Court in LEWIS V OGDEN, specifically the need for clear evidence of the
intended wilfulness of the applicant. The applicant
must be shown on the material to act in a way
clearly showing he was intentionally or deliberately
set.ting about to interfere with the course of justice.
principle and, in fact, His Honour Mr Justice Matthews The majority made no reference to that particular
vhose, as I said, judgment was really the majority judgment of the Court, said at page 31 of the appeal
book - it is page 5 of his reasons - about two-thirds

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of the way down the page or starting half-way down

the page:

The whole incident was, of course, unfortunate and

to say the least the applicant was rude to the

Judge in circumstances in which he and the Judge

probably displayed a degree of heat during the

course of the argument reflected in the transcript.

The question however is whether the

applicant's refusal by the words "No, I won't"

could have been reasonably thought to be within

the provisions of section 105 of the Act and if so

whether in imposing the fine His Honour proceeded

according to law.

Now, section 105 of the Act, of course, makes the

questions of contempt in the Queensland District Court

purely a statutory matter; there is no coIImlon law of

contempt there; that has been previously cited by the

Full Court here and it is consistent, really, with this Court's decision in LEWIS V OGDEN in relation to

the Victorian County Court. His Honour then went

on to consider what the coIIm10n law situation is and

then on the next page of his decision he said:

If a Judge is to maintain the dignity of his

Court he must necessarily control the right of

persons to speak and in the circumstances of

what occurred in the particular case I think

that his direction to the applicant to keep

quiet while he, the Judge, was speaking could

only be considered as a lawful direction which

· the app.licant said. he would not respect.

Whether this could be considered as a disobedience of the direction may be doubtful but it would,

in my view, amount~to wilful misbehaviour.

(Continued on page 8 )

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MR HAMPSON (continuing):

It was further submitted to us that

required that the applicant in effect be	the judgment of the Court in LEWIS V OGDEN
charged in the sense that the nature of the
contempt should be specified (see judgment
of the Court at p. 346). In the instant case and from a reading of the transcript
and bearing in mind that the applicant was

· a member of the Bar of considerable experience,

I think that when His Honour in effect sought

an apology and gave the applicant an opportunity

to apologize both he and the applicant well

knew what was the complaint against him and

what were the facts which His Honour thought

constituted a contempt.

Mr Justice Dowsett agreeing with it_but, of course,	Now, that is the majority decision, as I say,
the offence is a statutory one against section 105 and it is quite clear that from that decision there it was thought quite unnecessary to comply with any
of the formalities that section 105 imposed.

Now, the minority on the other hand,

Mr Justice Carter, did deal with the matter. He

set· the section out in full, in fact, at page 3

of his reasons:

Section 105 of the DISTRICT COURTS ACT

has the heading "Contempt of Court".

And he set it out in full and it is important, of

course, that it consists of d:ffferent types of

at different times; wilfully interrupting the	statutory offences; wilfully insulting a judge
proceedings; otherwise misbehaving; unlawfully
obstructing; ·

Without lawful excuse disobeys any lawful

order or direction of the Court~

His Honour, having set that out, went on.at page 4

of his reasons, to point out in fact, the different

types of offence that are comprehended within the

section. He says:

To constitute a contempt at common law in the

face of the Court or in the face of proceedings,

words or conduct "must be such as would interfere

or tend to interfere with the course of justice".

DEANE J: Would it be open under Mr Justice Carter's judgment	for your client to be charged again or charged
properly?

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MR HAMPSON: Yes, Mr Justice Carter really has said that

there has been no proper charge at all and that

was the submission we, in fact, made.

DEANE J: Which really would be the most you could hope for

on an appeal, is it not, that the present finding

of contempt be set aside,leaving it open for

proceedings specifying the appropriate offence

under 105.

MR HAMPSON:  On this particular argument that would be the

most, yes, Your Honour, on the basis that

Mr Justice Carter was correct in his approach to

105 and the majority were wrong. If that were the

only argument on which we could succeed, what

Your Honour said is quite correct.

DEANE J: Well, then, if the merits come into it, would this

Court really be expected to say whether an answer,

"No, I won't" to a judge's question, "Will you stay

silent when I am speaking?" is or is not contempt of

court, without a finding of somebody in circumstances

where the person has been,accepting Mr Justice Carter's

judgment,properly charged?

MR HAMPSON:  But that is going to whether the majority was right

leav±ng· aside Mr·.~Justice Carter's analysis of the

position.

DEANE J: Well, Mr Justice Carter says,on his view,there could

well have been an offence under one or other of the

subsections.

(Continued on page 10)

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MR HAMPSON:  There could have been a prima facie offence,

probably, but one would have had to consider.-

and it was our submission that the trial judge

never did and the Ful 1 Court never did - the
material in the affidavit of the applicant

before it as to his state of mind; that

his intention was not in any way to dispute

with the judge, or to insult him, or to do	anything positively of that kind, but that
his intention was purely consistent with the
duty that he saw as counsel in the case to have
recorded his objection - to have that actually recorded before,in fac~ he passed on to anything
else or resumed his seat.

DEANE J:	I was just suggesting to you, Mr Hampson, that
if you were to get leave, I would think it
unlikely that this Court would embark on the
exercise whether what was said was capable of being contempt of one or other of the kinds
under section 105 if your client was specifically
charged in the manner indicated by Mr Justice Carter?

MR HAMPSON:  Of course, if he were specifically charged,

I mean, I suppose we would be in no worse

position in tl':esense that those matters that

we say which were already ignored by the.

Full Court - the matters that he had in his affidavit which I could say go to his subjective

intention, the intention that he had at the time.

There was no real evidence to the contrary of

that. You just looked at the transcript, that

is all the majority in the Full Court did,and said, "Oh, well, we're satisfied that the

judge must have been right", taking the view,	the way Mr Justice Matthews put it, a very
strange test,; "The question is whether the
applicant's refusal by the words, "No, ·I- won't" ,
could have been reasonably thought be·
within the provisions of section 105 which,
we submit, is imposing an extraordinarily
wide and lax test in relation to a matter so
important as this.

What Your Honour says is correct in this

sense, that if the matter in fact did go back and.he was properly charged, the trier of fact in that particular case would then have to

look - as we submit it has not been properly looked

at yet by anybody - at really the intention with

which the applicant acted·; whether in fact he
was deliberately and intentionally disobeying

what was being said, or whether, as he has sworn, and there is nothing to the contrary, he believed

he was carrying out his duty and trying to get

tr~ssubmission recorded before he went on to

something else.

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WILSON J: Yes, but all that the appeal would be concerned

with if spe~ial leave were granted, was the
propriety of the proceedings and the question

of any further hearing would depend on what

proceedings were instituted subsequently.

MR HAMPSON:  Yes, that may be so, Your Honour. I would

accept that, that the Court could limit the
grant of special leave to that particular
matter but that~ of course, would be, so far

as the applicant is concerned, the opportunity

which,· .we would submit, he has not yet had

Once there is a proper charge laid against him	really, of having advanced the subjective reasons.
he can then bring a defence to it and say, "This
was my intention. I did not - ". Suppose it was was a case of insulting the judge - that was the way it was put - he could say, "Well, my defence
is I didn't intend to insult you at all and these
were my reasons",and the matter could be properly analysed, which we say it has not been done
until now.

His Honour Mr Justice Carter points out,

you see, on page 5 of his reasons, that is

page 37 of the appeal book, having dealt with

the authorities, dealt. in particular with LEWIS

V OGDEN, he said, about half-way down the page:

The case before us was argued on the basis

that by refusing to stop speaking as directed

by the learned trial judge and in responding

with the words "No. I won't", counsel

and committed a wilful insult and had been

properly convicted.

Now, would the Court compare that with what

Mr Justice Matthews said. Mr Justice Matthews said it was really a lawful direction:

I think that his direction ..... to keep

quiet ..... could only be considered as a

lawful direction which the applicant said

he would not respect. Whether this could

be considered as disobedience of the

direction may·be doubtful but it would, in

my view, amount to wilful misbehaviour.

(Continued on page 12)

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MR HAMPSON (continuing):  You see, we have different versions

here. You have Mr Justice Carter's statement -

and I must say that accords with my recollection

that that is the basis upon which the case was really

argued - that there had been a wilful insult, and

indeed it seems to be, if anything, the flavour of

what the district court judge had, that he had	been insulted, and he said something or other to the
effect, "That goes beyond mere rudeness".

WILSON J:  Your complaint is really limited to the fact that

there was no proper formulation of any charge coming

within section 105 and therefore the special leave

should be granted to set aside those proceedings.

MR HAMPSON: That is so, Your Honour.

WILSON J:	Is there more to it than that?
MR HAMPSON:	We reinforce it, I suppose, by the fact that in

absence of the charge is the fact that in the	the Full Court - I mean, just what highlights the
Full Court's judgment you have a disagreement as to the basis upon which the case was argued and on which
the applicant was held rightly to be convicted whether, as Mr Justice Matthew says.as was pointed out,
".as a disobedience to a lawful direction", or "as
wilful misbehaviour", or as Mr Justice Carter pointed
out, being argued solely on the basis of wilful
insult. So that highlights the position.

We submit that quite clearly, and when one looks

at section 105. as Mr Justice Carter did, it quite

clearly should have been a case where the Full Court

should have said, "This should be properly identified".

This requirement of proper particularization, of course, goes back - we give the Court COWARD V

STAPLETON, (1953) 90 CLR 573, a decision of

Justices Williams, Acting Chief Justice, Kitto and

Taylor, at page 579 going over onto page 580

it was said there, dealing with the express provisions

_ under the BANKRUPTCY ACT about contempt:	Even apart from any such express provision,
however, it is a well-recognized principle
of law that no person ought to be punished for contempt of court unless the specific
charge against him be distinctly stated and an opportunity of answering it is given to him.

That, of course, the Court took up in LEWIS V OGDEN,

but COWARD V STAPLETON was as long ago as 1953, and

we would submit that that just has not happened in the present case and leave should be granted

because it is an important matter that a barrister

of the Supreme Court of Queensland, or a barrister

C2Tl6/l/HS	12	25/11/88
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anywhere, in the exercise of the practise of his

profession, has wrongly been convicted of contempt.

_ .That is a very important matter and if there is

the slightest doubt about the conviction it is our

submission that the Court should clearly give special

leave with a view to investigating it.

WILSON J: Thank you, Mr Hampson. Yes, Mr Gallagher.

MR GALLAGHER:  If the Court pleases, this is not a case of

whether a barrister can be determined to go too far

or not.	This is clearly a case where this
particular barrister has gone too far.	The complaint

really comes down to the short point, whether he should

be charged as if on an indictmen~_and the cases make

it quite clear in circumstances of contempt that the

special nature of an indictment and the specific

allegations contained in an indictment are not

appropriate when the court is meant to deal as quickly

and firmly with these matters as is desired in all

fairness in the circumstances.

(Continued on page 14)

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MR GALLAGHER (continuing): Rather than be daunted by COWARD's

case we indeed rely on it as a principal decision

of this Court to show the nature of contempt, and
although a specific charge must be mentioned or stated

against the person and an opportunity of answering

given to him, the Court there said:

The gist of the accusation must be made

clear to the person charged, though it is

not always necessary to formulate the charge

in a series of specific allegations ..... The

charge having been made sufficiently explicit,

the person accused must then be allowed a

reasonable opportunity of being heard in his

own defence.

WILSON J: What charge was made here, Mr Gallagher?

MR GALLAGHER:  That he has been guilty of contempt without

there being limited to contempt under a specific
subsection of 105, but it is clear that section 105 deals

with contempt in various example forms, but nevertheless

it is a section dealing with the old common law form ·

of contempt but illustrating the way in which it can

occur and the differences as to whether some are wilful

and some are insults or some are failure to obey lawful

directions. But the barrister, when the judge said,	"I am going to charge you with contempt" and then
specified the exact nature of that contempt, could not
have been in any doubt that what was being charged was
within the various examples of section 105. And to go
back to COWARD's case, Your Honour, it was not necessary
to charge him on an indictment on section 105, with
the specific subsections set out, merely to say that
what you have said constitutes one or other of the
matters contained in section 105,to give him an opportunity
of placing before the court the explanation or
amplification and any submissions of fact or law.

Now all of those things were done. Another

example of the nature of it: is in fact the Full Court

of the State of Queensland in DOW's case, where the

.person - - -

DEANE J:	Mr Gallagher, is no~ the problem this, that here we
are hearing an application for special leave and we are
still a little bit in doubt as to precisely which of the
subclauses of section 105(1) is said to be the
appropriate one. Which one do you alight on?
MR GALLAGHER:	It can be a number, indeed, Your Honour, and that

can be he wilfully interrupted the proceedings of the

court -

DEANE J:  He did not interrupt the proceedings, he was asked a

question and he gave a somewhat unpleasant answer.

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MR GALLAGHER: Yes, or otherwise wilfully misbehaved himself

in court, that is caught within the same subsection,

Your Honour, or he wilfully insulted the judgeibecause

one cannot merely rely on the words, but the tone and

manner of the words - there was evidence of shouting,

not only on the part of the judge, but certainly on	the part of counsel and having regard to the atmosphere
of the court, as referred to in BELLANTOts case, one
presumes that the trial judge was in a far better
position then we are all in now, in hindsight, merely
to look at the words.

DEANE J: Of course, the atmosphere may do much to eliminate

the element of wilfullness~ I mean, in other words,

it may have been an indiscretion on the spur of the

moment, in the heat of the moment~·

MR GALLAGHER:  Your Honour, one would like to think that, but

subsequent events, when reading· the transcript, and indeed the conduct in the Full Court, did not cause

this case to give one any compunction or remorse

because there was always a clear attitude on behalf of

the;applicant that what he did he was entitled to and

he was right.

(Continued on page 16)

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DEANE J:	Mr Justice Dqwsett makes clear how important he
thought that was.
MR GALLAGHER:	Yes and, indeed, at the Full Court level,

if an apology had been offered at that stage,

the Crown quite fairly said, "We did not want

to proceed any further"; there was no necessity

for any blood-letting, as it were.

WILSON J:  But if we come back to the formulation or the

necessity or otherwise to formulate a specific

charge, your submission amounts to this, does

it not, Mr Gallagher, that really we can remove

subsection (1) out of the Act altogether and

simply read subsection (3} as providing the

sole offence under the section:

If any person shall do any other act or thing which is a contempt of a District Court he shall be guilty of an offence

under this section.

MR GALLAGHER:  In terms.- the section appears to incorporate

there the common law principle of contempt.

WILSON J:  And that is really what you are relying on,

is it not, once you distance yourself from any

particular clause under subsection (1)?

MR GALLAGHER: If we need to go to (3), that certainly

is the case and that was the situation in a

Full Court case in Queensland of DOW's case -

WILSON J:  And you would say there would be no need to

particularize the particular form of contempt

at all?

MR GALLAGHER: There would be only a need to tell him

what act or words or actions constituted the

contempt· to give him an opportunity to rebut

- or to excuse his conduct?

DEANE .. J:.c::·•of.:course, what His Honour said was a little

bit likely to mislead, was it not, in that he

alleged a deliberate contempt. These wilful

things are contempt but a deliberate contempt
would seem to mean to do these wilful things

deliberately intending to be in contempt.

MR GALLAGHER:  Yes, His Honour, perhaps, overstated the

proposition with the use of the phrase "deliberate".

DEANE J: - That would tend, if somebody carried section 105

round in their mind, to divert them from

subsection (3).

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MacGroarty

MR GALLAGHER:  It may have, Your Honour, yes. The other case

that is useful to refer to is BILLANTO's case;

a decision of the Banco court in New South Wales

in (1963) SR(NSW)190. The two passages that

I refer the Court to: first of all as to whether the conduct in question can amount to contempt,

and that does not seem to be in doubt from the

argument at page 196 in the second paragraph:

For where conduct is in question, it depends

not so:much on the words used per se,

but on the attitude, manner, inflexion

and intonation of the speaker. For example,

in deciding whether scorn, reproach
or diminution of a court are said to be
the result of words used, it is most important

to be present and hear them and to see

and appr~cfaee the setting in which they

were used.

The second major passage in that judgment,

Your Honours, appears at page 205, about two-thirds:

of the way down, in the second paragraph:

Rules of natural justice require that	no person shall be punished for contempt
of court unless the specific charge against
him be distinctly stated and an opportunity
of answering it given to him:  COWARD
V STAPLETON;  IN RE POLLARD ..... But it
is not necessary to formulate the charge ina series of specific allegations provided that the gist of the accusation is made clear to the person charged: .. , .. The matter
is put thus in the joint judgment of the
High Court in COWARD'S CASE~

which has already been referred. The importance

of proceeding firmly and fairly is stated in

the next paragraph, Your Honours:

(Continued on page 18)

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MacGroarty

MR GALLAGHER (continuing):

To these injunctions we would add the observation that as to contempt in facie curiae the judge

usually himself prefers the charge and is usually

required to act in summary proceedings on the

spot so as not to involve a statement or trial of

specially formulated issues. The Judicial

Committee recognized these very practical

considerations ..... where Their Lordships spoke of

making the person charged aware of the pith of

the contempt charged against him: ..... Martin J
speaks of stating the nature of the charge arising

from words charged as contempt if they cannot

be dissected or formulated in specific allegations.

which cannot be misunderstood what is the gravamen The same learned judge speaks of stating in terms

of the complaint, and of giving a full opportunity

to answer the charge.

So that really what my learned friend is saying is,

'~I know what I said and it may well be contempt,

but please tell me specifically whether it is 105(1)

or 105(3), and I am going to better off!• Because,

when one comes down to in the merits of the case, unanimous to the effect that the words were capable

of :annunting to contempt in the circumstances.	Indeed,
even His Honour	Mr Justice Carter, at page 35 of the

record, puts it first, when he said:

I am in no doubt that this remark constituted

a grave discourtesy to the Bench.

And then he goes on at pages 37 and 38, to indicate

whether they could fit within the various sections

of the Act. If there had been a doubt, as there was

in LEWIS V OGDEN, that the conduct in question itself

was not capable of am:iunting to contenpt, this would

be a case where injustice might be perpetrated, but question, 11 C.Ome along and charge me with a specific if the only complaint is, on a public importance	offence, but we will get to the same result," with	respect, Your Honours, we say that is not a matter
of public importance.

WILSON J: Thank you, Mr Gallagher. Special leave will be

granted in this case.	It is unnecessary to hear you
in reply, Mr Hampson. .

AT 11.16 AM THE MATTER WAS ADJOURNED SINE DIE

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