Case: Australasian Meat Industry Employees' Union v Mudginberri Pty Limited [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: discussed
The Tribunal then proceeded to consider whether the proceedings before Buddin J could be described as having resulted in a conviction for a criminal offence. It referred to a number of authorities to which I will have to refer in due course, including Attorney General (NSW) v Whiley (1993) 31 NSWLR 314; Whitham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 and Australasian Meat Industry Employees' Union v Mudginberri Pty Limited [1986] HCA 46 ; (1986) 161 CLR 98. The Tribunal concluded that there was no doubt that proceedings before Buddin J had been brought with the purpose of punishing Mr Seymour noting that it had been common ground, as Buddin J recorded in his reasons, that the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied and that the penalty imposed had been one of imprisonment for a fixed term, as opposed to an indefinite term until the contempt of being purged. The tribunal then said: '24. Therefore whilst not free from doubt, I accept for current purposes that the contempt proceedings before Buddin J were criminal. 25. The result of that finding has application to both subparagraphs 5.2 and 5.4 of the Respondent's Statement of Facts and Contentions.' 74 Nonetheless, the distinction had been recognized in the High Court as recently as Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106. 75 The reliance on the distinction in a case like the present, where the applicant was sentenced to nine months imprisonment, suspended, for breaching a court order shows how unworkable the distinction really is in practice. Was the contempt with which the applicant was charged civil when the charge was preferred? Did it remain so or did it transmute, as the seriousness of, and contumaciousness of, his conduct was proved in evidence or found by Buddin J when giving judgment? The very notion that an allegation of contempt can have such a chameleon-like character demonstrated, in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 108-109 and in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525, that all such cases had to be decided on the criminal standard of proof. The High Court did not have to decide in the latter case whether the distinction between 'civil' and 'criminal' contempt should be abolished (see 183 CLR at 549). 84 The elusiveness of the distinction Windeyer J identified is demonstrated by the result in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525. There the question was what standard of proof applied, i.e. civil or criminal, in proceedings which fell squarely within Lord Atkinson's 'civil' classification, namely, charges of contempt that the appellant knowingly or recklessly presented a false or misleading statement of his assets and liabilities in an affidavit which he had been ordered to make and that he breached (what was then termed) a Mareva injunction, (this is now known as a Mareva order: Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 at 393-394 [25] [-26]) by dealing with his assets contrary to the terms. Brennan, Deane, Toohey and Gaudron JJ said (183 CLR at 533-534): 'Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings alleging breach of an order or undertaking, it is necessary to acknowledge, as it was in Mudginberri ((1986) [1986] HCA 46 ; 161 CLR 98 at 108), that punitive and remedial objects are, in the words of Salmon LJ "inextricably intermixed" ( Jennison v Baker [1972] 2 QB 52 at 64). Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as " punitive " and others as " remedial or coercive ". Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking.' 85 More recently in Rich v ASIC [2004] HCA 42 ; (2004) 220 CLR 129 at 145 [32] , [33], 148 [41], six justices referred to the difficulties in attempting to classify all proceedings as either civil or criminal. They noted the elusive distinction between 'punitive and 'protective' proceedings. And in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 112-113, Gibbs CJ, Mason, Wilson and Deane JJ said that lying behind punishment for a contempt which involves wilful disobedience to a court order is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. They held that a deliberate commission or omission which is in breach of an injunctive order or undertaking would constitute such wilful disobedience unless it were casual, accidental or unintentional. They said (161 CLR at 113) that such a deliberate commission or omission: '... went beyond a matter of mere civil contempt there opening up ... a jurisdiction in the Federal Court to adopt such measures in its discretion, whether punitive or coercive, which would best deal with the contempt.' 93 In Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 377, Lloyd LJ tellingly observed that it was nonsensical for the law to classify as a criminal a stranger to the litigation who aided and abetted a party bound by an injunction to breach the injunction, while leaving the principal not as a criminal at all but as only 'guilty' of 'civil' contempt. He would have classified each as 'civil'. In contrast, Sir John Donaldson MR also found the classification between civil and criminal contempt no longer to be appropriate and suggested an, apparently criminal classification ([1988] Ch at 362B-D; see too: Borrie &amp; Lowe : The Law of Contempt (3 rd ed) pp 630-664). Of course, Gibbs CJ, Mason, Wilson and Deane JJ had debunked the example of the stranger being liable on a different standard as 'an absurd proposition' in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 108. 94 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? 102 A person charged with contempt should never be exposed to the duplicitous, almost schizophrenic, nature of a charge of 'civil' contempt which, during the course of the hearing may change into a 'criminal' charge. No other court proceedings allow of such an intolerable situation. It is unfair to the point of being unjust that a person defending proceedings does not know at the outset of the hearing the full nature of the case against him or her where liberty may be in jeopardy (cf: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 108-109). 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).