mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588
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.
Case: Doyle v The Commonwealth [1985] HCA 46 ; (1985) 156 CLR 510
Outcome: followed
Subsequently in Doyle v The Commonwealth [1985] HCA 46 ; (1985) 156 CLR 510 at 516, Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ applied Windeyer J's remarks saying that: '... disobedience of an injunction is not a criminal offence ... and a proceeding for the committal of a person who has wilfully disobeyed an order of the Court is not a criminal proceeding (see La Trobe University v Robinson and Pole [1973] VR 682 at 688) except possibly where the proceedings are grounded upon a contumacious or defiant contempt of the Court....' 103 However, Doyle v The Commonwealth [1985] HCA 46 ; (1985) 156 CLR 510 at 516 establishes authoritatively for this matter that the old and unsatisfactory distinctions apply, and I do not feel that I can follow Lord Atkin's advice in United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 29, where he said: 'When these ghosts of the past stand in the path of justice clanking their medi&aelig;val chains the proper course for the judge is to pass through them undeterred.' 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: Fardon v Attorney-General (Qld) [2004] HCA 46 ; (2004) 210 ALR 50
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: Hinch v Attorney General (Vict) (No 2) [1987] HCA 56 ; (1987) 164 CLR 15
Outcome: discussed
Mr Seymour relied upon the statement that all proceedings for contempt ' must realistically be seen as criminal in nature ' as Deane J pointed out in Hinch v Attorney General (Vict) [1987] HCA 56 ; (1987) 164 CLR 15 at 49 and as approved by Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534. It was said that, accordingly, the tribunal's finding that the contempt charge determined by Buddin J was criminal was an error of law. Next he argued that that error of law affected the tribunal's finding that Mr Seymour demonstrated a lack of candour and openness by his apparently contradictory stances taken before the Court of Appeal in the earlier contempt proceedings (namely that the Law Society should not be allowed to appeal against his acquittal) and his stance in the proceedings before the tribunal (that the proceedings before Buddin J were not criminal). 78 That reasoning reflected what the Court had said in Hinch v Attorney-General (Vict) (No 2) [1987] HCA 56 ; (1987) 164 CLR 15 at 89 where it noted: 'Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.' 80 And in Shamadasani v King-Emperor [1945] AC 264 at 270 (in a passage approved by the Court in Hinch v Attorney-General (Vict) (No. 2) [1987] HCA 56 ; (1987) 164 CLR 15 at 90), Lord Goddard also said, in explaining why the Privy Council ordered the Crown to pay costs contrary to the usual practice in criminal cases where the Crown appeared to uphold a conviction: 'Although this matter is one which is known as criminal contempt it obviously is in a different category from an ordinary criminal case.'
Case: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27 ; 182 CLR 26
Outcome: referred to
By applying for a review in the tribunal, Mr Seymour elected to treat the original decision of the Authority as valid and, having proceeded with the full review, he has lost any right he had to challenge the original decision. He should not be allowed to have the opportunity to approbate a favourable review or reprobate an unfavourable result as he chooses (see too: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27 ; (1993) 182 CLR 26 at 41-42 per Deane, Toohey, Gaudron and McHugh JJ; Meyers v Casey [1913] HCA 50 ; (1913) 17 CLR 90 at 99 per Barton ACJ, at 116 per Isaacs J (with whom Rich J agreed at 148)). 133 The reasons for administrative decisions are not to be pharsed and analysed as if they are judgments. Their role is to explain in the decision-maker's own words why he or she or they arrived at the result. Administrative decision-makers are not necessarily or, I apprehend, usually trained lawyers with a keen eye to what court might find revelatory of an error of law (cf: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27 ; 182 CLR 26 at 41-42 per Deane, Toohey, Gaudron and McHugh JJ; Meyers v Casey [1913] HCA 50 ; (1913) 17 CLR 90 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The court cannot acquire jurisdiction to review a decision if the tribunal merely makes an error of fact ( Waterford v The Commonwealth ((1987) [1987] HCA 25 ; 163 CLR 54 at 66 per Mason and Wilson JJ, 77 per Brennan J).
Case: In re Lonrho Plc [1990] 2 AC 154
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.
Case: James v Robinson [1963] HCA 32 ; (1963) 109 CLR 593
Outcome: referred to
The inherent jurisdiction of a superior court of record so constituted, such as the Supreme Court of New South Wales, includes a power to punish for contempts out of court which are committed not just of that court but against any court over which the superior court exercises a supervisory jurisdiction: John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364-365 per Dixon CJ, Fullagar, Kitto and Taylor JJ. Earlier their Honours said: 'A party disobedient to the order or process of a court is often said to be "in contempt". In these cases each court has its own appropriate means of enforcement, and such "contempts" are not criminal. Criminal contempt consists in contumelious behaviour to a court, and is divided into two broad classes--contempt in the face of the court and contempt out of court. All criminal contempts are indictable offences at common law. Contempts in the face of the court have, however, from time immemorial been punishable summarily (i.e. without conviction by a jury) by the court before which the contempt is committed.' (see too James v Robinson [1963] HCA 32 ; (1963) 109 CLR 593 at 612 per Windeyer J) 70 The significance of their Honours' judgment is that in cases of 'criminal contempt' all such contempts are indictable misdemeanours at common law but are also capable of being punishable summarily. That result followed from the undelivered judgment of Wilmot J in R v Almon (1765) Wilm 243; 97 ER 94; see too: James v Robinson [1963] HCA 32 ; (1963) 109 CLR 593 at 600-602, 612. An indictable misdemeanour was triable as an ordinary criminal offence, on indictment before a jury (see Rex v Tibbits [1902] 1 KB 77 at 87). It is a common law criminal offence which was once described by Lindley LJ as '... the only offence that I know of which is punishable at common law by summary process' ( O'Shea v O'Shea &amp; Parnell (1890) 15 PD 59 at 64, cited with approval in Australian Building and Construction and Builders' Labourers' Federation v David Syme &amp; Co Ltd (1982) 59 FLR 48 at 52; 40 ALR 518 at 521.) And it must follow that where the misdemeanour is punished by summary process, it is no less a punishment that follows conviction for a criminal offence.
Case: John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351
Outcome: referred to
The inherent jurisdiction of a superior court of record so constituted, such as the Supreme Court of New South Wales, includes a power to punish for contempts out of court which are committed not just of that court but against any court over which the superior court exercises a supervisory jurisdiction: John Fairfax &amp; Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364-365 per Dixon CJ, Fullagar, Kitto and Taylor JJ. Earlier their Honours said: 'A party disobedient to the order or process of a court is often said to be "in contempt". In these cases each court has its own appropriate means of enforcement, and such "contempts" are not criminal. Criminal contempt consists in contumelious behaviour to a court, and is divided into two broad classes--contempt in the face of the court and contempt out of court. All criminal contempts are indictable offences at common law. Contempts in the face of the court have, however, from time immemorial been punishable summarily (i.e. without conviction by a jury) by the court before which the contempt is committed.' (see too James v Robinson [1963] HCA 32 ; (1963) 109 CLR 593 at 612 per Windeyer J)
Case: John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 ; (2000) 181 ALR 694
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: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 ; (2000) 203 CLR 503
Outcome: referred to
I am of opinion that the common law is a law of each State. The reasoning underlying the decision in the Native Title Case [1995] HCA 47 ; (1995) 183 CLR 373 at 487 was that the Constitution was the only source of the laws of the Commonwealth and it identified the Parliament as the mechanism by which such laws came into existence. But the nature of the federation created by the Constitution recognized that a body of law, separate from statute, existed in the former colonies which became States on 1 January 1901. That body of law, the common law, undoubtedly exists today. It forms part of the 'single system of jurisprudence constituted by the Constitution , federal, State and Territory laws and the common law of Australia' identified by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 ; (2000) 203 CLR 503 at 534 [66] (see too Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 562).
Case: Kable v DPP (NSW) [1996] HCA 24 ; (1996) 189 CLR 51
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: Lane v Registrar of Supreme Court of NSW [1981] HCA 35 ; (1981) 148 CLR 245
Outcome: referred to
For my part, were I free to do so, I would regard all contempts which interfere with the course of justice or the due administration of the law ( Lane v Registrar of Supreme Court of NSW [1981] HCA 35 ; (1981) 148 CLR 245 at 257-258; Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 107) as criminal offences because they denote a qualification or impediment on (e.g. contempts by publication which can be unknowing) or a refusal to obey the lawful authority of the Court. When the Court enjoins a person from acting in a particular way, it is undoubtedly saying that it will be a breach of the law so to act thereafter. Why, when the person breaches the injunction is his or her behaviour any less serious or different in character than a breach of a statutory prohibition to which criminal sanctions also attach?
Case: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520
Outcome: referred to
I am of opinion that the common law is a law of each State. The reasoning underlying the decision in the Native Title Case [1995] HCA 47 ; (1995) 183 CLR 373 at 487 was that the Constitution was the only source of the laws of the Commonwealth and it identified the Parliament as the mechanism by which such laws came into existence. But the nature of the federation created by the Constitution recognized that a body of law, separate from statute, existed in the former colonies which became States on 1 January 1901. That body of law, the common law, undoubtedly exists today. It forms part of the 'single system of jurisprudence constituted by the Constitution , federal, State and Territory laws and the common law of Australia' identified by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 ; (2000) 203 CLR 503 at 534 [66] (see too Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 562).
Case: Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1
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: Meyers v Casey [1913] HCA 50 ; (1913) 17 CLR 90
Outcome: referred to
By applying for a review in the tribunal, Mr Seymour elected to treat the original decision of the Authority as valid and, having proceeded with the full review, he has lost any right he had to challenge the original decision. He should not be allowed to have the opportunity to approbate a favourable review or reprobate an unfavourable result as he chooses (see too: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27 ; (1993) 182 CLR 26 at 41-42 per Deane, Toohey, Gaudron and McHugh JJ; Meyers v Casey [1913] HCA 50 ; (1913) 17 CLR 90 at 99 per Barton ACJ, at 116 per Isaacs J (with whom Rich J agreed at 148)). 133 The reasons for administrative decisions are not to be pharsed and analysed as if they are judgments. Their role is to explain in the decision-maker's own words why he or she or they arrived at the result. Administrative decision-makers are not necessarily or, I apprehend, usually trained lawyers with a keen eye to what court might find revelatory of an error of law (cf: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27 ; 182 CLR 26 at 41-42 per Deane, Toohey, Gaudron and McHugh JJ; Meyers v Casey [1913] HCA 50 ; (1913) 17 CLR 90 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The court cannot acquire jurisdiction to review a decision if the tribunal merely makes an error of fact ( Waterford v The Commonwealth ((1987) [1987] HCA 25 ; 163 CLR 54 at 66 per Mason and Wilson JJ, 77 per Brennan J).
Case: Minister for Immigration &amp; Multicultural Affairs v SRT [1999] FCA 1197 ; (1999) 91 FCR 234
Outcome: referred to
Next the Authority submitted that Mr Seymour's argument was misconceived because it amounted to a collateral attack against his conviction which was impermissible ( Minister for Immigration &amp; Multicultural Affairs v SRT [1999] FCA 1197 ; (1999) 91 FCR 234 at 240-245; NSW Bar Association v Somosi (2001) 48 ATR 562 at 577 [80]-[81] per Spigelman CJ, Sheller and Giles JJA agreeing). It was submitted that the tribunal had to accept the conviction and the essential facts, that is, the ingredients of the offences found by Buddin J. That being so, it was said that there was no need in [37] of the tribunal's reasons to engage in an evaluation process of the matters to which it there referred particularly as the Authority argued that [37] incorporated a reference to the earlier findings at [8]-[15] of the tribunal's reasons. 134 Here, the tribunal had the benefit of the judgment of Buddin J. That revealed not only matters which went to the issues under s 290(2)(c) but also to those under ss 290(2)(h), namely any other matter relevant to Mr Seymour's fitness to give immigration assistance. It would be open to the tribunal to rely, as it did in [37]-[38] on the objective facts of Buddin J's decision and sentence irrespective of the technical, legal issue which it addressed, and I have also considered, as to whether the contempt was a 'criminal offence' for the purposes of either or both of ss 290(2)(c) or 312(1)(e). Even if the contempt was not a criminal offence, I am of opinion that the tribunal did not err in having regard to the findings and conclusions of Buddin J in his judgment (cf: Minister for Immigration v SRT [1999] FCA 1197 ; (1999) 91 FCR 234 at 244-245 [42] - [48] per Branson, Lindgren and Emmett JJ).
Case: Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597
Outcome: referred to
Only a court can decide authoritatively whether or not an administrative decision was legally valid or effective: Plantiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 505-506 [75] - [76] , 513-514 [104]; cf Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at 605 [13] per Gleeson CJ, 614-615 [51] per Gaudron and Gummow JJ, 618 [63] per McHugh J.