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R v Fletcher; Ex parte Kisch

R v Fletcher; Ex parte Kisch

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Case Copied 6 February 1935 20 min read

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FLETCHER AND ANOTHER;

Ex PARTE KISCH. Contempt of Court-Decision of High CourtPublication in newspaper of matter

relating thereto-Criticism of decision-Duty of publishers-Punitive jurisdiction of Court-Principles observed-Contempt of State inferior Court-General juris. diction of High Court. Jan. 29, 30, 31; Feb. 1, 6.

Upon an application made to the High Court that the editor and the pro- prietor of a certain newspaper be punished for contempt of that Court in publishing certain articles and letters in the newspaper purporting to criticize a decision of the High Court,

Evatt J. held that the legal principles applicable in such a case are :- (a) The High Court has ample jurisdiction to punish summarily those responsible for publications calculated to obstruct or interfere with the adminis- tration of justice, whether such publications take the form of comment referring to proceedings pending in the Court, or that of unjustified attacks upon the members of the Court in their public capacity.

(b) In the case of attacks upon the Court or its members, the summary remedy of fine or imprisonment is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice, and where the attacks are unwarrantable,

(c) It is the duty of the Court to protect the public against every attempt to overawe or intimidate the Court by insult or defamation, or to deter actual and prospective litigants from complete reliance upon the Court's administration of justice.

(d) The facts forming the basis of the criticism must be accurately stated, and the criticism must be fair and not distorted by malice.

52 CLR 249

(e) Even although the criticism exceeds the bounds of fair comment SO that other remedies of a civil or criminal nature are or may be available, the Court will not apply the summary remedy unless upon the principles stated above.

(f) In all cases of contempt the Court has power to act not only summarily (g) Summary proceedings for contempt are criminal in character: therefore the respondents are entitled to invoke the principle that guilt should be proved beyond reasonable doubt.

Some of the letters were published after it had been announced that fresh proceedings in a Court of Petty Sessions were to be taken against the applicant.

Held that the High Court possesses no general jurisdiction in relation to contempts constituted by publications tending to prejudice proceedings before inferior Courts of a State, even though such inferior Courts are about to exercise, or are exercising, Federal jurisdiction.

MOTION FOR COMMITTAL.

Between 21st December 1934 and 8th January 1935, certain letters and articles were published in the Sydney Morning Herald, a newspaper published daily except on Sundays, most of which letters and articles purported to criticize the decision of the High Court in R. v. Wilson; Ex parte Kisch 1, announced on 19th December 1934, to the effect that Scottish Gaelic could not be regarded as a European language within the scope and intention of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1935] HCA 1
Decision Date: 6 February 1935

CaseChat Overview and Summary

This case concerned an application to the High Court of Australia by Egon Erwin Kisch seeking to punish the editor and proprietor of the *Sydney Morning Herald* newspaper for contempt of court. The alleged contempt arose from the publication of various articles and letters between December 21, 1934, and January 8, 1935, which purported to criticise a recent decision of the High Court regarding the interpretation of the Immigration Restriction Act 1901.

The legal issues before the Court were whether the published material constituted contempt of the High Court, and if so, what the appropriate response should be. Specifically, the Court had to determine if the publications were calculated to obstruct or interfere with the administration of justice, or constituted unwarranted attacks on the Court and its members. A secondary issue was whether the High Court possessed jurisdiction to punish publications that might prejudice proceedings before an inferior State court, even if those proceedings involved federal jurisdiction.

Evatt J. outlined the principles governing contempt of court by publication. He affirmed the High Court's jurisdiction to punish publications that obstruct justice or attack its members, but stressed that the summary remedy of fine or imprisonment should only be applied when necessary for the ordered and fearless administration of justice and where attacks are unwarrantable. The Court has a duty to protect itself from intimidation and to ensure public confidence in its administration of justice. While fair criticism is permissible, the facts must be accurately stated and the criticism must be fair and not malicious. The Court also held that it lacked general jurisdiction to deal with contempts affecting inferior State courts, even when exercising federal jurisdiction, as this power resides with the relevant State Supreme Court.

Ultimately, Evatt J. dismissed the application for contempt against the newspaper editor and proprietor. While acknowledging that some published material exceeded the bounds of fair criticism and was inaccurate, intemperate, and offensive, the Court found that the publications, when viewed in their entirety, did not sufficiently demonstrate an intent to undermine the Court's authority to warrant a punitive order. The dismissal was without prejudice to any proceedings that might be brought in the Supreme Court of New South Wales concerning the publications of January 7th and 8th, 1935.

Orders