mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Shamadasani v King-Emperor [1945] AC 264
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.' 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: Skipworth's Case (1873) LR 9 QB 230
Outcome: referred to
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: Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194
Outcome: referred to
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: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: applied
Moreover, the Authority relied on what Allsop J had said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [231] - [233] (Weinberg J agreeing at [155]) that even if a jurisdictional error had been established, that may not vitiate the decision if there were a separate and independent reason which supported it. Likewise, the Authority referred to the observations by McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 184 [80] that discretionary relief for cases in which jurisdictional error had been established may be refused if the applicant had in fact suffered no injustice, for example, because the statutory law compelled a particular outcome. 143 I am satisfied that in [38] the tribunal was expressing an independent and freestanding reason for being satisfied, pursuant to s 290(1), that Mr Seymour was not a fit and proper person regardless of the proper characterization of whether his contempt was a criminal offence. Since there is no error of law in the way in which the tribunal arrived at this conclusion, even if it and I be wrong as to the nature of the contempt, the tribunal's decision should stand: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 184 [80] per McHugh J, 212 [211] per Hayne J with whom Kirby J agreed at 203 [174]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [231] - [233] per Allsop J, Weinberg agreeing at [155].
Case: Temora Shire Council v Stein (2004) 134 LGERA 407
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: The Queen v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254
Outcome: referred to
In Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 at 281D-282G Kirby P and at 288A-D Handley JA held that Pt 55 r 14 of the Supreme Court Rules 1970 (NSW), which contained a power to discharge a convicted contemnor from prison, was authorized by an Act, namely the Supreme Court Act 1970 (NSW). They held that this was because, first, the rule had been made as delegated legislation under the Act and, secondly, in The Queen v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 280 Dixon CJ, McTiernan, Fullagar and Kitto JJ had approved of the explanation given by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34 ; (1931) 46 CLR 73 at 101-102 that a statute may authorize the Executive to make a law i.e. to make delegated legislation and that such a law is made under the statute.
Case: The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation [1981] HCA 33 ; (1981) 147 CLR 471
Outcome: referred to
Ordinarily, where the legislature has given a party aggrieved by an administrative decision a full statutory right of appeal on facts and law, that is indicative of a legislative intention that that right is the party's only means of redress against the failure of the original decision-maker to follow, according to law, the rules of procedural fairness in coming to the decision: The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation [1981] HCA 33 ; (1981) 147 CLR 471 at 484 per Mason J, with whom Murphy J at 489, Aickin J at 493 and Wilson J at 494 agreed on this point; Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 at 113-117, esp at 117; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344 at 354 [31] - [32] (and see too at 353 [29] where Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 41 FLR 338; was followed).
Case: Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397
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: Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106
Outcome: applied
Ordinarily, where the legislature has given a party aggrieved by an administrative decision a full statutory right of appeal on facts and law, that is indicative of a legislative intention that that right is the party's only means of redress against the failure of the original decision-maker to follow, according to law, the rules of procedural fairness in coming to the decision: The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation [1981] HCA 33 ; (1981) 147 CLR 471 at 484 per Mason J, with whom Murphy J at 489, Aickin J at 493 and Wilson J at 494 agreed on this point; Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 at 113-117, esp at 117; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344 at 354 [31] - [32] (and see too at 353 [29] where Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 41 FLR 338; was followed). 131 Even though Twist v Randwick Municipal Council [1976] HCA 58 ; (1976) 136 CLR 106 was decided on different legislation, I am of opinion that Mason J (136 CLR at 116) enunciated the approach which is appropriate to apply to a case like the present when he said: 'But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have "cured" a defect in natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases--notably by the Privy Council in De Verteuil v. Knaggs ([1918] AC 557); Pillai v. Singapore City Council ([1968] 1 WLR 1278 at p 1286) and by the Supreme Court of Canada in Re Clark and Ontario Securities Commission ((1966) 56 DLR 92d) 585) and King v. University of Saskatchewan ((1969) 6 DLR (3d) 120); cf. Denton v. Auckland City ([1969] NZLR 256) and Leary v. National Union of Vehicle Builders ([1971] Ch 34) where the contrary view was taken. In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing--in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal.'
Case: United Australia Ltd v Barclays Bank Ltd [1941] AC 1
Outcome: referred to
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.'
Case: Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34 ; (1931) 46 CLR 73
Outcome: referred to
In Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 at 281D-282G Kirby P and at 288A-D Handley JA held that Pt 55 r 14 of the Supreme Court Rules 1970 (NSW), which contained a power to discharge a convicted contemnor from prison, was authorized by an Act, namely the Supreme Court Act 1970 (NSW). They held that this was because, first, the rule had been made as delegated legislation under the Act and, secondly, in The Queen v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 280 Dixon CJ, McTiernan, Fullagar and Kitto JJ had approved of the explanation given by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34 ; (1931) 46 CLR 73 at 101-102 that a statute may authorize the Executive to make a law i.e. to make delegated legislation and that such a law is made under the statute.
Case: Waterford v The Commonwealth ((1987) [1987] HCA 25 ; 163 CLR 54
Outcome: referred to
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: Waugh v Kippen [1986] HCA 12 ; (1986) 160 CLR 156
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: Weaver v Law Society of New South Wales [1979] HCA 35 ; (1979) 142 CLR 201
Outcome: referred to
On behalf Mr Seymour it was submitted that the procedure used before Buddin J followed the scheme in SCR Pt 55 r 6-13 and that the proceedings were in the civil jurisdiction in the Supreme Court. It was said that contempt proceedings are sui generis , particularly where the proceedings were themselves taken within the original 1994 proceedings in which the undertaking had been given by Mr Seymour. Those proceedings arose out of the earlier 1982 disciplinary proceedings in which Mr Seymour had been found guilty of professional misconduct and struck off. Accordingly, it was argued that having regard to the fact that disciplinary proceedings both under the relevant legislation and in the exercise of the Supreme Court's inherent jurisdiction were not criminal proceedings but sui generis because the Court was called upon to examine the conduct of solicitors as explained by Mason J in Weaver v Law Society of New South Wales [1979] HCA 35 ; (1979) 142 CLR 201 at 207, that the contempt proceedings brought before Buddin J were of the same character. 87 Although Mr Seymour argued that the Supreme Court's disciplinary jurisdiction over solicitors was sui generis , as Mason J had said in Weaver v Law Society of New South Wales [1979] HCA 35 ; (1979) 142 CLR 201 at 207), I do not consider that to be relevant here. The charge of contempt related to disobedience of an order of that Court. The judicial source of the order, even if, sui generis , is not of any significance to the charge. The charge related to the conduct of Mr Seymour in contravening an order of the Court which was valid and binding on him. And while it may be that the offence of contempt of court attracts remedies which are also sui generis , the uniqueness of the remedies is not decisive of the question whether contempt is properly to be characterized as a criminal offence.
Case: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217
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.