Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
Outcome: discussed
Ms Baird contended, however, that I should exercise my discretion, whether pursuant to FCR, O 35 r 7(1) or O 10 r 1 (which allows the Court to give directions as to the filing of affidavits and the giving of evidence at the hearing), to allow the respondent to file its evidence after the applicant closes its case at the hearing. She relied on the principle that proceedings for contempt are criminal in nature and must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 , at 534, per Brennan, Deane, Toohey and Gaudron JJ. According to Ms Baird, this principle supports the proposition that, as a matter of procedural fairness, a party against whom contempt charges are brought by reason of alleged contraventions of orders of the Court should have the opportunity of testing the evidence against it before having to decide whether or not to give evidence. This was said to be so for the following reason: 'Once affidavits are filed and served, the opportunity arises for the applicant to use and rely on that material in the applicant's case. The applicant may also be able to use the material in dealing with any " no case " submission that the respondent may seek to make at the close of the applicant's case. This potential for use of the respondent's affidavit evidence may limit the respondent's entitlement to make a no case submission, and to require the applicant to prove its case before electing whether to go into evidence.' 11 In Witham v Holloway, the joint judgment stated (at 530) that in general terms the distinction between civil and criminal contempt is that: 'a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice.' However, while recognising that the distinction was of long standing, their Honours regarded it as unconvincing. In particular, they thought (at 533) that there was considerable difficulty with the notion that in some cases the purpose or object of contempt proceedings is ' punitive ' and in others the purpose is ' coercive or remedial '. Their Honours pointed out that proceedings for breach of a court order have the effect of vindicating judicial authority, as well as a remedial or coercive effect. 13 The decision in Witham v Holloway does not mean that contempt proceedings are to be assimilated to criminal proceedings for all purposes. In Witham v Holloway itself, the joint judgment recognised (at 534) that: 'to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not.' Their Honours held, on the basis of this reasoning, that the Court had power to order a retrial of contempt charges even though there was no power at common law to order a retrial after a guilty verdict at a jury trial had been quashed on appeal.