Case: Australian Building and Construction and Builders Labourers' Federation v David Syme &amp; Co Ltd (1982) 59 FLR 48
Outcome: referred to
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. 79 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.'