Case: AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: applied
rationale for the exercise of the contempt power is "to protect the effective administration of justice by demonstrating that the Court's orders will be enforced": AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 107. There is "a public interest in the exercise of the contempt power in cases of disobedience to an order": Mudginberri Station [1986] HCA 46 ; 161 CLR 98 at 107. The law recognises a distinction between civil and criminal contempts. A civil contempt usually involves disobedience to a court order or breach of an undertaking. On the other hand, a criminal contempt is committed where there is contempt in the face of the court or an interference with the administration of justice. In Mudginberri Station [1986] HCA 46 ; 161 CLR 98 at 108, Gibbs CJ, Mason, Wilson and Deane JJ said: When the defendant's disobedience is casual it may readily appear that the primary purpose of exercising the power is to vindicate the plaintiffs' rights. On the other hand, when the disobedience is accompanied by public defiance it may as readily be seen that the primary purpose of exercising the power is the vindication of the court's authority. But the classification in terms of primary purpose is a more complex and artificial undertaking when the punishment is for wilful disobedience unaccompanied by defiance. There is, accordingly, much to be said for the view that all contempts should be punished as if they are quasi criminal in character, notwithstanding the adoption of the contrary view by some members of this Court in the decisions to which we have already referred. A civil contempt may be classed as a criminal contempt if there has been a contumacious defiance of the Court's order or an undertaking given to the Court: Mudginberri Station [1986] HCA 46 ; 161 CLR 98 at 108. The applicant contends that the respondent's conduct is contumacious and in deliberate defiance of the September 2002 orders and the November 2007 undertaking. In those circumstances, it was put that the respondent's conduct must be characterised as criminal contempt because "it occurs in circumstances where the conduct amounted to public defiance, involves a public injury and this calls into play a penal disciplinary jurisdiction to deal with criminal contempt": Mudginberri Station [1986] HCA 46 ; 161 CLR 98 at 108. In discharging the onus of proof, the applicant must establish beyond reasonable doubt that the respondent had knowledge of the order or undertaking and voluntarily did an act or omitted to do an act in breach of that order or undertaking. A party must comply strictly with an order that requires the party to do something or to refrain from doing something. The course of the trial Dr Toben was represented by counsel. I adopted the procedure of having the charges read over to Dr Toben. He pleaded not guilty to each of the 28 charges. I should address the question of contumacy because it is important in classifying the contempt and in considering any penalty to determine whether the disobedience to the order has been wilful or contumacious: Mudginberri Station [1986] HCA 46 ; 161 CLR 98 at 105-107 and 111-113. I am satisfied beyond reasonable doubt that the separate publications on the Adelaide Institute website of the material which has established each of the charges which I have found proven was wilful and contumacious. The fact that the AI Document has appeared regularly on the Adelaide Institute website on each of the days accessed and can be accessed through a number of the Adelaide Institute newsletters is evidence of a wilful and contumacious disobedience of the September 2002 orders and the November 2007 undertaking. Moreover, the number of statements which have been identified by the applicant in support of the charges giving rise to the imputations, in particular imputations 1 and 2 of the September 2002 orders which I have found proven on the various dates upon which the Adelaide Institute website was accessed, shows a wilful and contumacious disregard of the September 2002 orders and the November 2007 undertaking.