The Honourable Durack, P.D. v Gallagher, N.L - [1982] FCA 235

Re: THE HONOURABLE PETER DREW DURACK
And: NORMAN LESLIE GALLAGHER (1982) 65 FLR 459
No. V30 of 1982
Contempt of Court
3 IR 41

COURT

FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop J.(1)

CATCHWORDS

Contempt of Court - criminal contempt - publication which scandalizes or otherwise lowers the authority of the court - penalty.

Contempt - Criminal contempt - Publication which scandalizes or otherwise lowers authority of Federal Court - Penalty.

HEADNOTE

On 21st July, 1982, the Full Court of the Federal Court of Australia allowed an appeal by the respondent, the federal secretary of the Australian Building construction Employees' and Builders Labourers' Federation, against a conviction for contempt of the Federal Court. On the same day the respondent made certain statements to television reporters, camera operators, journalists and others concerning the decision of the Full Court including the words: "I believe that by their actions in demonstrating in walking off jobs . . . I believe that that has been the main reason for the court changing its mind." By notice of motion the Attorney-General of the Commonwealth brought proceedings charging the respondent with contempt of the Federal Court consisting of those statements.

Held: (1) The essence of the criminal contempt of court alleged against the respondent was conduct which scandalized or otherwise lowered the authority of the court. Conduct by a person which asserts, either expressly or by implication, that a party to a proceeding before the court by itself or by persons associated with it was, or is able to influence a judgment of the court by action taken outside court, constitutes a contempt of court.

Australian Building Construction Employees' and Builders Labourers' Federation v. Fraser unreported (Federal Court of Australia, Northrop J., 6th April, 1982), applied.

R. v. Dunbabin; Ex parte Williams (1935) 53 CLR 434, referred to.
(2) The part of the respondent's answer set out above was a deliberate statement which asserted that the Full Court changed its mind because it was overawed by the action of workers walking off jobs and demonstrating.
(3) The relevant answer constituted conduct by the respondent which, of necessity, tended to induce a lack of confidence in the ordered and fearless administration of justice and constituted a contempt of the Federal Court.

Attorney-General for New South Wales v. Mundey (1972) 2 NSWLR 887, discussed.

R. v. Dunbabin; Ex parte Williams (1935) 53 CLR 434, referred to.
(4) The contempt of court warranted the imposition of a severe penalty. The respondent should be imprisoned for three calendar months and ordered to pay the Attorney-General's costs.

HEARING

Melbourne, 1982, September 21-22;

October 6-7, 18, 22; November 1. #DATE 1:11:1982

The Attorney-General of the Commonwealth commenced proceedings against the respondent alleging criminal contempt of the Federal Court of Australia.

E.D. Lloyd Q.C. and A.G. Uren, for the applicant.

R. Merkel, for the respondent.

Cur.adv.vult.

Solicitor for the applicant: B.J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: Holding Redlich & Co.

T.J. GINNANE

ORDER

1.…

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: [1982] FCA 235
Decision Date: 01 NOVEMBER 1982

CaseChat Overview and Summary

The matter before the court involved Norman Leslie Gallagher, who was found to have committed criminal contempt of the Federal Court of Australia. The contempt was related to a publication that scandalized or otherwise lowered the authority of the court. The specific incident occurred on 21 July 1982, when Gallagher made a statement to various media representatives, including television reporters, camera operators, and journalists. In his statement, Gallagher expressed his satisfaction with the rank and file of a union and their support for the union's officials, suggesting that their actions had influenced the court's decision.

The legal issues that the court needed to decide were whether Gallagher's statement constituted contempt of court and, if so, what the appropriate penalty should be. The court had to consider whether Gallagher's words had indeed scandalized or lowered the authority of the court, and whether the penalty imposed was appropriate in the circumstances. The court also needed to determine whether the costs of the motion for contempt should be awarded to the Attorney-General.

The court found that Gallagher's statement did indeed constitute contempt of court as it suggested that the court's decision had been influenced by the actions of the union. The court emphasised the importance of maintaining the authority and integrity of the court, and that any actions or words that could be perceived as undermining this authority were to be taken seriously. The court considered the nature and circumstances of the contempt, including the public nature of the statement and the potential impact on the court's reputation. The court decided that a penalty of imprisonment for three calendar months was appropriate, given the seriousness of the contempt and the need to deter similar conduct in the future. The court also ordered that Gallagher pay the Attorney-General's costs of the motion for contempt.

Orders

Orders of the court

1. That Norman Leslie Gallagher be imprisoned for three calendar months for contempt of the Federal Court of Australia committed by him on 21 July 1982 when in giving his answer to the question, "What is your reaction (or response) to the Court's decision?" namely:

'I'm very happy to the rank and file of the union who has shown such fine support for the officials of the union and I believe that by their actions in demonstrating in walking off jobs ... I believe that that has been the main reason for the court changing its mind."

he published the said answer to a number of television reporters, camera operators, journalists and other persons.

2. That a warrant issued for the apprehension of Norman Leslie Gallagher and for his committal to Her Majesty's Gaol at Pentridge or any other gaol which is more accessible or convenient, and for the said Norman Leslie Gallagher to be imprisoned in such gaol for the said period of three calendar months.

3. That Norman Leslie Gallagher pay the Attorney-General's costs of the motion for contempt.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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