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Decisions of the Superior Courts of New South Wales, 1788-1899

In re Williams [1838] NSWSupC 85

libel, on judge - Burton J., libel on - legal practitioner, libel on judge - striking off legal practitioners - contempt of court, newspaper commentary - press freedom - contempt of court, attachment - contempt of court, by legal practitioner - legal practitioners, division of profession

Supreme Court of New South Wales

Dowling C.J., Burton and Willis JJ, 15 September 1838

Source: Sydney Herald, 17 September 1838[ 1]

The Attorney-General applied for a rule, calling upon Mr. William Williams, an Attorney, to show cause why an attachment should not be issued against him, for publishing a libel upon Mr. Justice Burton, in the Australian of the 16th August.  Mr Justice Burton said he had had no communication with the Attorney-General upon the subject, but he would ask him, whether he thought it necessary for the ends of Justice, to proceed in the matter; he felt that his character could not be injured by any such attack, and he did not wish to submit the writer of it to any punishment.  The Attorney-General said that he considered it necessary for the character of the Court, to prosecute an officer of the Court, who was guilty of such an attack upon one of the Judges.  Mr. Williams submitted to the Court, that he is not an attorney of the Court, not having sued out any process, in the Court for upwards of two years; and therefore he trusted their Honors would not issue an attachment.  If the Court thought fit to order a criminal information, he would not oppose it; for, from a conversation he had had with the Attorney-General, he found that he (Mr. Williams,) had misunderstood the intention of Mr. Justice Burton in handing him Cartwright's petition.  He thought his Honor had handed him the petition thinking him guilty of the charges contained therein, and he wrote the letter under feelings of great excitement, but when he found that His Honor had handed it to him out of kindness, he felt great sorrow for having written the letter.  Mr Justice Burton explained to the Court that a person named Cartwright, who was convicted of felony, having petitioned for a mitigation of sentence, the petition was handed to him, as the Judge who tried the case, for his report.  The petition stated that several witnesses who would have materially altered the case were absent from the trial, and there were several allegations reflecting on Mr. Williams, who conducted Cartwright's defence.  It is customary with the Judges when petitions containing charges against attorneys are handed in, to refer them to the attorney for his explanation.  This, however, was not the object in handing it to Mr. Williams.  Seeing him come into Court, and wishing to let him know the contents of the petition, he requested the Registrar to hand it to Mr. Williams, and tell him he should like to hear his version of it. Mr. Manning did so, and Mr. Williams wished to address  the Court, but he (the Judge) told him that if he had any remarks to make to commit them to writing. Mr. Williams then became very much excited, and threw himself about in a very strange manner, and said, "I won't," and persisted in making some remark.  Soon afterwards Mr. Williams again attempted to address the Court, but seeing the state of excitement he was in, he (the Judge) saw that it was no use listening to him and requested the sheriff to turn him out of Court.  After what had fallen from Mr. Williams he must make it his personal request to the Attorney-General not to proceed any further, as he was confident Mr. Williams was sincere in his expression of regret.  The Chief Justice said he was sure the character of his learned brother would not suffer from any thing Mr. Williams had written; and after the generous and magnanimous manner in which His Honor had acted, the whole Court requested the Attorney-General not to proceed any further.  The learned gentleman then withdrew his motion.

 

Source: Australian, 18 September 1838

 

The Attorney-General said he had to apply for a rule to show cause why an attachment should not issue against Mr William Williams, an Attorney of the Supreme Court, for contempt.  He made the application on an affidavit of Mr Fisher, the Crown Solicitor, which set forth certain letters published in The Australian newspaper of 14th of August last, reflecting on Mr Justice Burton as the productions of Mr Williams.  He might state that the publication of the letters in question arose from a circumstance that occurred in the Supreme Court, when His Honor Mr Justice Burton, who had received a petition from a person named Cartwright, convicted some time back of sheep stealing, praying for a remission of sentence, and which petition contained some reflections on Mr Williams in his professional character, had desired the Registrar of the Court to hand the petition to Mr Williams for explanation.  That gentleman had conducted himself improperly in the Court, attempting to address the Bench several times when desired not to interrupt the Court, and was at last forced to be removed by sheriff's bailiffs.  The letters in question immediately followed this affair.  He might also state, that on the publication of the letters in The Australian, application had been made to Mr. Nicholls, attorney at law, Editor of that paper, (and to whom one of the letters he complained of was addressed,) for an explanation of the publication, that gentleman appearing in the imprint of the paper as an officer of that Court, and was consequently answerable for anything published of and concerning the Court.  Mr Nicholls had, however, cleared himself from any knowledge of the publication, in a letter to the Crown Solicitor, and and [sic] as he had so purged himself, he (the Attorney-General) did not feel called on to take further proceedings against him.  If he had not purged himself from the contempt, no matter what Mr N. might think (and he (the Attorney-General) knew that he considered the Court could not interfere with him in his Editorial capacity, as an officer of the Court) he must have been equally amendable as an officer of the Court, and would have been proceeded against accordingly.

Mr Justice Willis said, that although Mr Nichols had purged himself from the contempt, he was still amenable to another form of proceeding if the Attorney-General adopted the course of prosecution for libel.  (His Honor quoted the case of Montefiore v. Hayes, and action for libel in the form of an advertisement in the Daily Advertiser newspaper, on which ptrial [sic] Mr Stewart, the Editor, had not only curged himself from all knowledge of the publiation [sic], but had also inserted an immediate apology for its appearance.)

The Attorney-General said he wished he could compliment the Editor of The Australian in the way Mr Stewart had been complimented by the prosecutor on that trial; for, although he had now purged himself from any knowledge of the publication, he had not expressed any regret for its appearance at the time; and he was bound as Editor of a paper, if he did not immediately superintend it himself to employ trustworthy persons who would exercise a sound judgment in the admission of libellous matter.

Mr Williams who was in Court rose and said, that he could not hear any reflections cast on Mr Nichols without at once declaring that that gentleman had been totally unconscious of the publication of the letters which he had not even seen; and that he (Mr Williams) was wholly and solely to blame in the matter.  He acknowledged that he was the author, and he alone was answerable for their publication.

The Attorney-General said that the case with Mr Nichols was different from the generality of newspaper editors.  When persons, but especially officers of that Court, were placed at the head of so powerful an engine aa [sic] the press, they ought to be very careful in the selection of persons to conduct it, otherwise newspapers would become the vehicles of the greatest abuse.  With respect to the matter complained of, he could state that, so far from Mr Justice Burton intending to attach any suspicion to Mr Williams in the matter of the petition, His Honor who had reason to know that the charges contained in it were false, had ordered the transmission of it to Mr Williams, in kindness to that gentleman.

The Chief Justice wished to know if the Attorney General had not rather mistaken the course he ought to adopt.  The application to the Court was for an attachment for contempt, which was rather for something done in the face of the Court, than for what took place out of it.

The Attorney General said that he had acted on precedent, and referred the Court to the case of Mr F. Stephen and Mr G. R. Nichols brought before the Court for a contempt for matter published in The Australian newspaper of, and concerning the Court.  In that case both the parties were officers of the Court, but Mr Nichols had purged himself, and Mr Stephen had been fined for the contempt.

The Chief Justice observed, that that publication was of and concerning the whole Court.

Mr Justice Willis said, that it was open to the Attorney General to proceed in another form which, perhaps, would not be liable to the same objection as the present application.  He might proceed in the regular form of criminal information, and as Grand Jury of the Colony present himself, as Attorney General, with a bill, upon which he would ground his information; or he might, as Attorney General, proceed ex officio - he (the Attorney General), had extraordinary powers vested in him, and he must exercise his judgment in the selection of the least objectionable cause.

Mr Justice Burton said that he thought he could shorten this case by a few questions to the Attorney-General.  Did that officers think that his (Mr Justice Burton's) usefulness would be lessened, or that his public character would at all be injured by the publication referred to?  His Honor thought not, and he had no desire that the individual should be punished for what he had done, perhaps, under feelings of great excitement.  If the Attorney General thought that it was absolutely necessary for the honor of the Court, that proceedings should be instituted, he should have nothing to say in the matter, he only expressed an individaal [sic] opinion that he did not think it requisite, and he personally requested that nothing further should be done in the matter.

The Attorney General said he did not think it at all necessary to vindicate His Honor's character as a Judge; for without wishing to eulogise, he would state that it stood far too high to be affected by any thing that might appear in a newspaper - but he had considered that he would not have been doing his duty to the public if he had not brought an officer of that Court before it, for the audacious publication that had appeared.  If, indeed, the publication had not been connected with his character of an officer of that Court, he (the Attorney General) might have passed it by, but as it originated in what took place in the Court, when an officer had conducted himself so badly that he was obliged to be turned out of Court by a sheriff's bailiff, he had thought it his duty to bring him before the Court, in order that the Court might exercise the summary jurisdiction it was invested with over its officers.  Mr Williams was one of the profession; he was on the rolls of the Court; and although he had not practised for a length of time, he could not be said to have retired, and when he had the temerity to talk of sending a Judge, a challenge, unless he had been brought up, the Court could not have expected that respect from the public which it was entitled, when its own officers were allowed to insult it with impunity.  This course had been considered warranted in the case of Stephen and Nichols, where the party had not been an officer, and when the cause of complaint was some ridiculous article about the Judge gowns, or something of that sort.

Mr Justice Burton corrected the attorney - it was for stating when the devision [sic] of Bar took place that the heads which were stupid enough to devise such a measure would be obstinate enough to persist in it.  He once more said, that he did not wish the matter to be urged further if the Attorney-General thought he could be authorised in withdrawing his application.

Mr Justice Willis said that the Attorney-General must exercise his discretion on public grounds.  The forgiveness of an injury by the injured party would not excuse his offence against the public.

The Attorney-General said that he had not communicated at all with Mr Justice Burton in the cause he had been called on to adopt, and had been influenced solely by his public duty without any reference to the Judge, and, indeed, without His Honor's knowledge.  He thought that the latitude taken by the Press of the Colony was such that it required to be checked when even the Judges were not exempted from its censure, and he was sorry to say, that if the Attorney-General was to take notice of every libellous matter that appeared, to the disgrace of the Press, there would be no end to the information on the files of the Court.  He, however, drew a distinction between officers of the Court and private individuals who were not bound by such a tie - Mr Williams was an officer of the Court, he had taken the steps he thought most suitable, and if that gentleman was not liable to an attachment, he thought he ought not to be punished as all.  He, however, hoped that enough had been said to shew officers of the Court that they should be the last to vilify the Court, and that they were amenable to a summary process for any contempt, and with this view he would not press the application.

Mr Williams said that he appeared to shew cause against the attachment issuing, as he did not consider himself an officer of the court, and was prepared to shew that he was not by their Honors' own rules which regulated the court; but if any other course of proceeding was instituted, he would at once stop the case, and relieve his mind from a great weight, by at once pleading guilty to the publication of the letters.  He would acknowledge that he had written those letters under very great excitement, from the supposition that His Honor Mr Burton, in handing to him the petition, had conceived him guilty of the attrocious [sic] charges contained in it.  If an information was filed against him, he would plead guilty to it, now that he understood Mr Justice Burton's motives in handing him the petition, and he would go further - he would express his deep regret that under the misconception that His Honor thought him the guilty thing implied in that petition, he had published what he was sorry for.  With respect to the attachment, he must contend that he was not amenable as an officer of that court, and he again took the opportunity of stating that Mr Nichols was in no way privy to the insection of the letters, and had nothing to do with them.  He was ready to shew that he had not issued any process out of the court for two years, nor had he even pleaded his exemption to process, considering that he was no longer an officer of the court.  He had only to say that if the Attorney-General filed a Criminal information, he would give them no trouble, but would say what he had now said, that he wrote those letters under the impression that Mr Justice Burton and the Attorney-General supposed him guilty of bartering his honor for £10, or for some such sum, which was more than he could bear, and that after the explanation which the Attorney General had that morning given of Mr Burton's motives, he was sincerely sorry for having done so.  With respect to Mr Fisher's affidavit, he was sorry to say that it contained what was not true.  Mr Fisher started by swearing to his hand-writing, although he had never seen him write, but he would let that pass.

Mr G. R. Nichols said that as his name had come before the court more than once during the discussion, perhaps he might be allowed to say a few words in explanation.  He regretted the publication of the letters in question as much as any one, but in saying so, he must deny the right of the Attorney-General to treat him as an officer of that court, in his capacity of Editor of a newspaper.  And he denied the right of the Judges to punish him summarily for any thing done by him except it related to his professional character as an Attorney and Solicitor of the Court.

Mr Justice Burton said that he thought it would be as well to explain to the Court that he had received a petition from a prisoner tried and convicted before him, praying that the clemency of the Crown might be extended to him on various grounds, and the petition charged Mr Williams as an attorney of the Court with dishonourable practices.  It must be known that in such cases it was customary to call on the party complained of for explanation, and as Mr Williams had come into Court that morning, he (Mr Justice Burton) had handed the petition to Mr Williams with a desire that he would be so good as to give his version of it.  In the course of the trial which was then proceeding, Mr Williams got up and addressed the Court several times, and he (Mr Justice Burton) had then said, precisely in the same tone he was then using, ``Mr Williams, put what you have got to say on paper, and I will attend to it."  Mr Williams had thrown himself about in a very strange manner, and appeared to be labouring under great excitement from some cause, and he said, ``No, I won't!" - I will not suffer my character to be attacked except on affidavit," ad as he still continued his interruption, and appeared to be under very great excitement, he (His Honor) had ordered his removal from the Court.  After what had been said on the subject, and the acknowledgment made by Mr Williams which he believed to be sincere, he would make it his request that no further proceedings should be taken.

The Chief Justice said, that in what had fallen from him he had not been influenced by any personal motives.  He had merely suggested that proceeding by attachment was not the most judicious course to be pursued, on the principle that it was objectionable that the Judges should be Judges in their own cause.

The Attorney-General said, that in justice to Mr Williams he must say, that on his pointing out to that gentleman the manner in which his name had been used in the petition, and stating to him the kindly feelings of his Honor Mr Justice Burton in handing it to him, Mr Williams had immediately expressed his regret that his feelings had carried him so far as to publish the letters in question.  He (the Attorney General) was not sorry however, that he had brought the matter before the Court, as he had discharged himself of his duty to the public; and whatever Mr Nichols might say about it, he contended that he had the power to treat him as an officer of the Court, so long as his name appeared in the imprint of the paper as an attorney of the Court.  He would withdraw the application.

The Rule was discharged and the Court adjourned until Monday.

 

Dowling C.J., Burton and Willis JJ, 22 September 1838

Source: Sydney Herald, 24 September 1838[ 2]

 

Mr William Williams applied to the Court to know how their Honors considered the 10th of the new rules, which says, that any Attorney ceasing to practice for one year, shall be struck off the rolls of the Court. Mr. Williams said that although he has not taken out process in the Supreme Court, he has practised before the magistrates.[ 3]  The Chief Justice said the rule was imperative; if an Attorney did not take out any process for two years, the Court imagined he had taken to other pursuits; Mr. Williams's name must be removed from the roll.

 

Notes

[ 1]See also Sydney Gazette, 18 September 1838.

[ 2]See also Australian, 25 September 1838; Sydney Gazette, 25 September 1838.

[ 3]The Sydney Gazette said that he had practised in the Police Court.

Published by the Division of Law, Macquarie University