mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562
Outcome: referred to
While in centuries gone by it may have been legally possible to imprison people who owed but had not paid debts, imprisonment in Australia today can only occur where a person is sentenced to a term by a court pursuant to law, be it a statute or the unwritten law, or is remanded (or held for a very limited time before he or she must be brought before a court or a justice of the peace: cf: Williams v The Queen [1987] HCA 36 ; (1986) 161 CLR 278) in custody as incident of the administration of the criminal law so as to be available at his or her trial. Administrative detention is not imprisonment ( Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562) and some statutes can authorize preventative detention after a term of imprisonment has been served (cf: Fardon v Attorney-General (Qld) [2004] HCA 46 ; (2004) 210 ALR 50, 78 ALJR 1519; Baker v The Queen [2004] HCA 45 ; (2004) 210 ALR 1, 78 ALJR 1483; Kable v DPP (NSW) [1996] HCA 24 ; (1996) 189 CLR 51). As Salmon LJ remarked in Jennison v Baker [1972] 2 QB 52 at 61G, of the distinction between 'civil' and 'criminal' contempt: 'I think that, at any rate today, this is an unhelpful and almost meaningless classification.' see too per John Laws (then junior counsel to the Treasury) in: Current Problems in the Law of Contempt (1990) 43 Current Legal Prolems 99 at 101, 102 quoted in Aldridge Eady &amp; Smith on Contempt (3 rd ed) at [3-48].
Case: Attorney-General (NSW) v X [2000] NSWCA 199 ; (2000) 49 NSWLR 653
Outcome: referred to
Aldridge, Eady &amp; Smith on Contempt (3 rd ed) at [3-91] suggest that notwithstanding the views of those who advocate abandoning the distinction between 'civil' and 'criminal' contempt, over the course of years many practical distinctions have occurred which would require explanation were this course to be followed. I do not think this is a sufficient justification. A convicted contemnor's rights of appeal could be protected, quickly, by amending legislation (cp the introduction and amendment of s 101A of the Supreme Court Act 1970 (NSW) where the Attorney-General of that State is given the right to refer to the Court of Appeal questions of law arising out of an acquittal on a charge of contempt: see: Attorney-General (NSW) v X [2000] NSWCA 199 ; (2000) 49 NSWLR 653 and John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 ; (2000) 181 ALR 694; 158 FLR 81).
Case: Attorney-General (NSW) v John Fairfax &amp; Sons Ltd (1985) 6 NSWLR 695
Outcome: referred to
Nowadays, all charges of contempt are invariably heard by a judge or a full court sitting on a summary trial. The procedure for trial by jury of such a charge or indictment has fallen into desuetude ( Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 595A-D per Street CJ, Hope, Glass, Samuels and Priestly JJA; In re Lonrho Plc [1990] 2 AC 154 at 177B-C; Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 393-394 [12] ; Borrie &amp; Lowe: The Law of Contempt (3 rd ed) p 469). In Attorney-General (NSW) v John Fairfax &amp; Sons Ltd (1985) 6 NSWLR 695 at 707C-E McHugh JA referred to Rex v Tibbits [1902] 1 KB 77 as the last reported case in England of a trial for contempt on indictment and he said there had not been such a trial in New South Wales in the twentieth century. 72 The current mode of proceeding for criminal contempt by the summary procedure is the product of historical development. Whatever procedure be employed to prosecute a charge of criminal contempt, in my opinion, cannot change the essential nature of that charge from being a criminal charge. As McHugh JA pointed out in Attorney-General (NSW) v John Fairfax &amp; Sons Ltd (1985) 6 NSWLR 695 at 707E-708E, the overwhelming preference has been in recent times to use the summary procedure and its utilization need not be justified, unlike attempts in the past to do so. As he said (6 NSWLR at 707E) '... the summary procedure is a departure from the ordinary course of law for criminal proceedings' . But that procedure does not change the character or incidents of criminal contempt from being at common law a criminal offence. Lord Russell of Killowen CJ explained the then state of the law in Reg v Gray [1900] 2 QB 36 at 40-41 saying that the summary jurisdiction was '... not a new-fangled jurisdiction; it is a jurisdiction as old as the common law itself, of which it forms part' . But his Lordship pointed out at that time it was exercised '... only when the case is clear and beyond reasonable doubt' and where that feature were not present he said that the courts left it to the Attorney-General to decide whether to proceed by criminal information; i.e. indictment: see R v Hull (1989) 16 NSWLR 385. The reporter noted in Reg v Gray [1900] 2 QB at 43 that the procedure then used was to issue an order on the Crown side of the Queen's Bench Division directing the accused to appear and show cause why he or she should not be committed for contempt as laid out in affidavits: see Onslow's and Whalley's Case ; (1873) LR 9 QB 219 at 219-220; see too Skipworth's Case (1873) LR 9 QB 230 at 232 per Blackburn J.
Case: Attorney-General v Newspaper Publishing plc [1988] Ch 333 at 377
Outcome: referred to
In Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 377, Lloyd LJ tellingly observed that it was nonsensical for the law to classify as a criminal a stranger to the litigation who aided and abetted a party bound by an injunction to breach the injunction, while leaving the principal not as a criminal at all but as only 'guilty' of 'civil' contempt. He would have classified each as 'civil'. In contrast, Sir John Donaldson MR also found the classification between civil and criminal contempt no longer to be appropriate and suggested an, apparently criminal classification ([1988] Ch at 362B-D; see too: Borrie &amp; Lowe : The Law of Contempt (3 rd ed) pp 630-664). Of course, Gibbs CJ, Mason, Wilson and Deane JJ had debunked the example of the stranger being liable on a different standard as 'an absurd proposition' in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 108.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: referred to
The tribunal commenced its reasons by setting out the relevant portions of s 290 of the Act. It then referred to the explanation of what the term ' fit and proper person ' connoted in the decisions of Hill J in Davies v Australian Securities Commission (1995) 59 FCR 221 at 232D-233B; (131 ALR 295 at 305) and Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 380.
Case: Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483
Outcome: referred to
Relevantly for present purposes in Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 497-498 Windeyer J in obiter dicta (Owen J agreeing on this aspect at 112 CLR at 516) said: 'In Scott v. Scott ([1913] AC 417) Lord Atkinson, after referring to several cases, said: "It was contended that these cases show that the disobedience of an order of Court constitutes in itself a crime, a criminal contempt of Court. Unfortunately for this contention, however, they do something more than that; they show I think, conclusively, that if a person be expressly enjoined by injunction, a most solemn and authoritative form of order, from doing a particular thing, and he deliberately in breach of that injunction, does that thing, he is not guilty of any crime whatever, but only of a civil contempt of Court" ([1913] AC at p 456). And in New South Wales, more than sixty years ago Walker J. spoke of "the mistaken view that all the offences generically known as contempts stand on the same footing, and that all contempts are criminal and must be dealt with as though they were the subject of a criminal indictment". "This", he said, "is not so." Dealing with an application for the sequestration of the property of a trade union that had disobeyed an injunction he said, "This is not an application by the plaintiff that the Court should exercise its criminal jurisdiction, and punish the union for a criminal offence; it is a step in the suit by which the plaintiff endeavours, by the only means open to him, to enforce against the union the injunction of the Court": Keogh v. The Australian Workers' Union ((1902) 2 SR Eq (NSW) 265 at pp 281, 282).' 104 Accordingly, I must decide whether Mr Seymour was found by Buddin J to have acted contumaciously in breach of the injunction. A 'civil' contempt can become 'criminal' where the act charged is contumacious in the sense that in doing it there was a direct intention to disobey the order ( Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 541 per McHugh J citing Warrington J's well known dictum in Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194). A breach of an injunction or undertaking to the Court can also be criminal if it is '... an obstinate disregard' of the obligation imposed by or owed to the Court ( Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 111-112). The hallmark of a classification of 'criminal' contempt of this nature is contumacy or defiance ( Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 489 per Barwick CJ, 501-502 per Windeyer J; Doyle v The Commonwealth [1985] HCA 46 ; (1986) 156 CLR 510 at 516).
Case: Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50
Outcome: referred to
I can see no error of law (and a good deal of common sense) in the clear inference drawn by the tribunal that Mr Seymour had purported to act as a solicitor before Blanch J made his order. Mr Seymour had knowledge of the facts and he cannot complain that having failed fully and clearly to provide them to the tribunal, it drew inferences against him: cp: Blatch v Archer (1774) 1 Cowp 63 [98 ER 969]; R v Burdett (1820) 4 B &amp; Ald 95 [106 ER 873]; Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ, 233 per Brennan and Toohey JJ; Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50 at 74-75 [65] - [67] per Gaudron, Gummow, Kirby and Hayne JJ; see too Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-G per Handley JA; Temora Shire Council v Stein (2004) 134 LGERA 407 at 424 [52] per Giles JA, [56] per Hodgson JA, 425 [62] per Pearlman AJA; see too Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at 142-143 [51] per Gleeson CJ and McHugh J.
Case: Baker v The Queen [2004] HCA 45 ; (2004) 210 ALR 1
Outcome: referred to
While in centuries gone by it may have been legally possible to imprison people who owed but had not paid debts, imprisonment in Australia today can only occur where a person is sentenced to a term by a court pursuant to law, be it a statute or the unwritten law, or is remanded (or held for a very limited time before he or she must be brought before a court or a justice of the peace: cf: Williams v The Queen [1987] HCA 36 ; (1986) 161 CLR 278) in custody as incident of the administration of the criminal law so as to be available at his or her trial. Administrative detention is not imprisonment ( Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562) and some statutes can authorize preventative detention after a term of imprisonment has been served (cf: Fardon v Attorney-General (Qld) [2004] HCA 46 ; (2004) 210 ALR 50, 78 ALJR 1519; Baker v The Queen [2004] HCA 45 ; (2004) 210 ALR 1, 78 ALJR 1483; Kable v DPP (NSW) [1996] HCA 24 ; (1996) 189 CLR 51). As Salmon LJ remarked in Jennison v Baker [1972] 2 QB 52 at 61G, of the distinction between 'civil' and 'criminal' contempt: 'I think that, at any rate today, this is an unhelpful and almost meaningless classification.' see too per John Laws (then junior counsel to the Treasury) in: Current Problems in the Law of Contempt (1990) 43 Current Legal Prolems 99 at 101, 102 quoted in Aldridge Eady &amp; Smith on Contempt (3 rd ed) at [3-48].
Case: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Outcome: referred to
McHugh J disagreed saying that even though the content of the contempt power of the Family Court could only be ascertained by reference to the common law, its source was a law of the Commonwealth (200 CLR at 399 [36]-[37]). He held that s 35 of the Family Law Act 1975 (Cth) was that source (200 CLR at 403-405 [48]-[50] Kirby J agreed with McHugh J on this point (200 CLR at 416 [80]-[81]. It is clear that Callinan J also considered that s 35 created an offence against a law of the Commonwealth (200 CLR at 431-433 [121]-[126], 439 [136]; see too Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [13] ).
Case: Blunden v The Commonwealth [2003] HCA 73 ; (2003) 218 CLR 330
Outcome: referred to
Although their Honours referred to the 'common law of Australia', that law derives its unity through the role of the High Court under s 73 of the Constitution which enables that Court to harmonize differences in the earlier common laws of the various States by establishing common principles (see e.g. Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at 29-30 per Brennan J; ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at 71 [38] per Gummow and Hayne JJ; Blunden v The Commonwealth [2003] HCA 73 ; (2003) 218 CLR 330 at 349 [59] per Kirby J). Nonetheless, the source of that 'common law of Australia' in relation to the inherent power of the Supreme Court of New South Wales to punish for contempt of court can only be the common law of that State, because, as the Native Title Case (1995) 183 CLR at 487 held, the Commonwealth itself has no such source.
Case: Chew v The Queen [1992] HCA 18 ; (1992) 173 CLR 626
Outcome: referred to
In Waugh v Kippen [1986] HCA 12 ; (1986) 160 CLR 156 at 164-165 Gibbs CJ, Mason, Wilson and Dawson JJ said (I have added in the following passage the interpolation in square brackets which McHugh J inserted when citing it in Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85 at 109 and see too per Toohey, Gaudron and Gummow JJ at 102-103; Chew v The Queen [1992] HCA 18 ; (1992) 173 CLR 626 at 632): 'The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen ((1976) [1976] HCA 55 ; 135 CLR 569 at 576) as follows: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams ((1935) [1935] HCA 62 ; 53 CLR 563 at pp. 567-568); Craies on Statute Law , 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort." In the course of argument, the question arose whether the two principles of interpretation to which we have referred [ie a purposive interpretation which furthered industrial safety and the rule that penal provisions should be strictly construed] come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board ([1951] AC 639 at p. 650), per Lord Porter; John Summers &amp; Son Ltd. v. Frost ([1955] AC 740 at p. 751), per Viscount Simonds; McCarthy v. Coldair Ltd. ([1951] 2 TLR 1226 at pp. 1227-1228), per Denning L.J. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue.'
Case: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49 ; (2003) 216 CLR 161
Outcome: referred to
Were I free to decide the question, I would hold that it is inconsistent with the rule of law for a court to have power to imprison a person for contempt unless the person's conduct amounted to a criminal offence. I realize that preconceived notions or classifications of what is 'civil' or 'criminal' are not always helpful. But where the liberty of the subject may be in jeopardy as part of the range of sentencing or remedial options open to a court on a finding that a charge of contempt has been proved beyond reasonable doubt, I am firmly of opinion that such a proceeding is a criminal proceeding whether or not a sentence imprisonment ultimately be imposed (cp: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49 ; (2003) 216 CLR 161 at 204-207 [131] - [139] per Hayne J, Gleeson CJ and McHugh J agreeing at 166 [1], [3]).
Case: Commercial Union Assurance Co-op Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Outcome: referred to
I can see no error of law (and a good deal of common sense) in the clear inference drawn by the tribunal that Mr Seymour had purported to act as a solicitor before Blanch J made his order. Mr Seymour had knowledge of the facts and he cannot complain that having failed fully and clearly to provide them to the tribunal, it drew inferences against him: cp: Blatch v Archer (1774) 1 Cowp 63 [98 ER 969]; R v Burdett (1820) 4 B &amp; Ald 95 [106 ER 873]; Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ, 233 per Brennan and Toohey JJ; Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50 at 74-75 [65] - [67] per Gaudron, Gummow, Kirby and Hayne JJ; see too Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-G per Handley JA; Temora Shire Council v Stein (2004) 134 LGERA 407 at 424 [52] per Giles JA, [56] per Hodgson JA, 425 [62] per Pearlman AJA; see too Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at 142-143 [51] per Gleeson CJ and McHugh J.
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: referred to
As is implicit in the tribunal's finding, it was not satisfied that that was a sufficient explanation for the failure to disclose in the first place (cf: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592). There was no error of law in the tribunal's approach. 135 And, the tribunal's reasons show that it did examine 'the whole position': A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 266 [18] . Despite Mr Seymour's submissions, I am not satisfied that the tribunal made any error of law in approaching its task of making an evaluation of the particular facts and circumstances before it concerning him and in making its decision as to its satisfaction under s 290(1). The tribunal considered the detailed subjective and objective circumstances of Mr Seymour's offending behaviour (cf: 216 CLR at 268 [22]) in the context of the whole of its reasons, before expressing its conclusion at [37]-[38]. The tribunal is not obliged to set out every detail of its reasoning process ( Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 449 [54] per Gummow and Heydon JJ, Gleeson CJ agreeing at 438 [1] applying Commissioner for Australilan Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592. There Northrop, Miles and French JJ held that a decision-maker could rely on an obvious and natural evaluation of admitted facts to decide that an applicant was not a fit and proper person).
Case: D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 ; (2005) 79 ALJR 755
Outcome: referred to
When the Court quells a controversy by ordering that a party do or refrain from a particular act or activity, it defines the rights and obligations of the parties as an aspect of the way in which our society is governed (cf: D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 ; (2005) 79 ALJR 755 at 761-762 [31] - [36] , 763 [43] per Gleeson CJ, Gummow, Hayne and Heydon JJ). A breach of such an order interferes in the administration of the law because it evinces an intention not to obey the law, as it affects the parties, which has been determined by the Court as a branch of government. That is so whether the injunction is final or interlocutory. 96 Of course, an order for the payment of money as damages or compensation is of a different character. When the Court orders a payment of this kind it creates a debt which is enforceable by a variety of means. Moreover, as is frequent, judgment debtors are not always able to pay debts. Injunctions, however, ought always be framed so that it is possible for the party enjoined to obey their commands. 97 And a failure to obey the injunction does interfere with the administration of the law because it evinces an intention that the command by the Court can be ignored. In effect, since behaviour suggests that the controversy has not been quelled and that the party enjoined can choose to obey or not as he or she pleases.
Case: Davern v Messel [1984] HCA 34 ; (1984) 155 CLR 21
Outcome: referred to
The Full Court of this court has held in Australian Building Construction Employees' and Builders Labourers' Federation v David Syme &amp; Co Ltd (1982) 59 FLR 48; 40 ALR 518 that the court had no jurisdiction to hear an appeal against a verdict of acquittal on the merits on a charge of criminal contempt. That case had applied an earlier decision of a Full Court in Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397; 19 ALR 547 which had held that the court under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) had no jurisdiction to hear an appeal against a verdict of acquittal on the merits of a criminal charge. This line of authority was subsequently approved in Davern v Messel [1984] HCA 34 ; (1984) 155 CLR 21 (see esp at 46 per Mason and Brennan JJ). As Bowen CJ, Evatt and Deane JJ pointed out in Australian Building Construction and Builders' Labourers' Federation v David Syme &amp; Co Ltd (1982) 59 FLR 48 at 53; 40 ALR 518 at 522: 'A finding of guilt of criminal contempt is a "conviction" (see Izuora v R [1953] AC 327 at 334-5) of an "offence" (see Shamadasani v King-Emperor [1945] AC at 264 at 270: "so grave an offence as contempt of court"). In Re James W Thompson (1893) 19 VLR 286, the Full Court of the Supreme Court of Victoria (Williams, Holroyd and Hood JJ) held that an appeal against an order attaching the appellant for contempt of court in publishing certain articles in a newspaper commenting on pending proceedings was incompetent for the reason that the proceedings for attachment were "a criminal matter, and therefore there is no appeal to this court". Their Honours commented that the purported appeal was "virtually an appeal from a punishment inflicted by a judge presiding in the criminal court for a criminal offence" (see, also, the equally strong comments of Cussen J in Re Dunn [1906] VLR 493 at 501-2). Acquittal of a charge of criminal contempt after a hearing on the merits is, in our view, an acquittal in criminal proceedings for the purposes of the established principle that no appeal lies from an acquittal on the merits of a criminal charge.'
Case: Davies v Australian Securities Commission (1995) 59 FCR 221
Outcome: referred to
The tribunal commenced its reasons by setting out the relevant portions of s 290 of the Act. It then referred to the explanation of what the term ' fit and proper person ' connoted in the decisions of Hill J in Davies v Australian Securities Commission (1995) 59 FCR 221 at 232D-233B; (131 ALR 295 at 305) and Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 380.