THE KING v. NICHOLLS. Contempt of Court-Nature of offence-Obstruction to or interference with justice-
Publication of statements concerning a Judge of the High Court.
Statements made concerning a Judge of the High Court do not constitute a contempt of the High Court unless they are calculated to obstruct or interfere with the course of justice, or the due administration of the law, in the High MOTION.
On 7th April 1911 there was printed and published at Hobart, Tasmania, in a newspaper called The Mercury, an article headed "A Modest Judge," which was as follows:-"Mr. Justice Higgins is, we believe, what is called a political Judge, that is, he was appointed because he had well served a political party. He, moreover, seems to know his position, and does not mean to allow any reflections on those to whom he may be said to be indebted for his judgeship. In the course of the hearing of a case in the Arbitration Court, one of the counsel described the Broken Hill labour organizations as ' the most tyrannical that he had known,' and he added, 'moreover, they are encouraged by their Union and the Government of this country.' Whereupon Mr. Justice Higgins was shocked, and is reported to have said severely, 'You are not entitled to speak severely of those above us.' Whether he meant that the Union or the Government is above us' is said to be somewhat uncertain, because as the Unions are supposed to rule the Government, it is held that they must be regarded as the supreme power, and must not be lightly spoken of, no matter what kind of language they may use them- selves. On the other hand, it is argued that he must have meant the Labour Ministry, because the charge of encouragement seems
to have been levelled at it openly in Court for the first time, and every one knows that the Unions do encourage all sorts of strange things. Assuming, as we may assume, we think, that he meant the Ministry, we find ourselves impelled to remark on the fact that a Judge, a superior Judge too, should admit that even a Ministry or a Government is superior to him in the exercise of his judicial functions. As we and most people understand the matter, a Judge on the Bench in the exercise of his judicial functions has no superior, and if a Government has done wrong in a public manner, there is no reason why the fact should not be stated, and it might even form a reason for a special decision in a case. In fact, it is conceivable that the action of a Minister might be a reason for a special decision, and, certainly, of special remarks, not only by counsel, but by the Judge, too. Mr. Justice Higgins thinks not, and has no resemblance to the Judge who did not hesitate to deal with a Prince of Wales in an exemplary mannner, and who…
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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AGLC
R v Nicholls [1911] HCA 22
Case
[1911] HCA 22
Decision Date
CaseChat Overview and Summary
This case concerned a motion brought by the Attorney-General of the Commonwealth seeking the committal of Henry Richard Nicholls, the editor of *The Mercury* newspaper, for contempt of the High Court. The alleged contempt arose from the publication of an article titled "A Modest Judge," which commented on remarks made by Mr. Justice Higgins during proceedings in the Commonwealth Court of Conciliation and Arbitration. The motion also sought an alternative finding of contempt of the Commonwealth Court of Conciliation and Arbitration, but this aspect was not pressed.
The central legal issue before the High Court was whether the publication of the article, specifically its introductory sentences, constituted a contempt of court. The Crown argued that any publication calculated to bring a Judge into contempt or lower his authority was a contempt of court, particularly when it alleged political subserviency. The respondent, while admitting inaccuracy in some aspects of the article and expressing regret, contended that the publication did not amount to contempt.
The Court, in dismissing the motion, clarified the nature of contempt of court. It held that while publications concerning a Judge may be libellous, they only constitute contempt if they are calculated to obstruct or interfere with the course of justice or the due administration of the law. The Court distinguished between contempt by "scandalizing a Court or a Judge" and acts that obstruct justice, noting that the former category, while historically recognised, had become practically obsolete and required a high threshold. Applying this principle, the Court found that the two introductory sentences of the article, even if potentially libellous, were not calculated to obstruct or interfere with the administration of justice in the High Court. The Court further stated that fair comment on judicial conduct, particularly if it concerns impartiality and is made in the public interest, is not contemptuous and may even be beneficial.
Consequently, the High Court ordered that the motion be dismissed.