mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Newcastle City Council v GIO General Ltd [1997] HCA 53 ; (1997) 191 CLR 85
Outcome: followed
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: NSW Bar Association v Somosi (2001) 48 ATR 562
Outcome: referred to
Next the Authority submitted that Mr Seymour's argument was misconceived because it amounted to a collateral attack against his conviction which was impermissible ( Minister for Immigration &amp; Multicultural Affairs v SRT [1999] FCA 1197 ; (1999) 91 FCR 234 at 240-245; NSW Bar Association v Somosi (2001) 48 ATR 562 at 577 [80]-[81] per Spigelman CJ, Sheller and Giles JJA agreeing). It was submitted that the tribunal had to accept the conviction and the essential facts, that is, the ingredients of the offences found by Buddin J. That being so, it was said that there was no need in [37] of the tribunal's reasons to engage in an evaluation process of the matters to which it there referred particularly as the Authority argued that [37] incorporated a reference to the earlier findings at [8]-[15] of the tribunal's reasons.
Case: O'Shea v O'Shea &amp; Parnell (1890) 15 PD 59
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.
Case: Onslow's and Whalley's Case (1873) LR 9 QB 219
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: Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19 ; (1999) 198 CLR 435
Outcome: referred to
In Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19 ; (1999) 198 CLR 435 at 453 [58] Gaudron, Gummow and Callinan JJ observed that a contempt proceeding which was criminal in nature was not a criminal prosecution, and so ordered costs.
Case: Plantiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: followed
Only a court can decide authoritatively whether or not an administrative decision was legally valid or effective: Plantiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 505-506 [75] - [76] , 513-514 [104]; cf Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at 605 [13] per Gleeson CJ, 614-615 [51] per Gaudron and Gummow JJ, 618 [63] per McHugh J. 128 One reason why prerogative relief or constitutional writs issue when a decision is found to have been affected by jurisdictional error, even though it is 'regarded in law, as no decision at all' ( Plaintiff S157/2001 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] ) is to provide an authoritative and legally binding judicial determination which recognizes that the decision has no legal effect. Of course, it could be said that any such relief or writ is unnecessary because the presence of the jurisdictional error entails the result that there is nothing to quash or upon which to prohibit further proceedings. But the availability of these remedies enables the Court to perform its function of quelling controversies and authoritatively determining that the decision cannot be given effect thereafter. 129 Now when a person such as Mr Seymour, is confronted with a decision which affects him or her or it, two possible avenues of legal challenge are available: one involving the executive power of the Commonwealth through a review in the tribunal under the AAT Act, the other involving the judicial power through proceedings under s 75(v) of the Constitution or s 39B of the Judiciary Act 1903 (Cth) or the Administrative Decisions (Judicial Review) Act 1977 (Cth).
Case: R v Almon (1765) Wilm 243
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.
Case: R v Burdett (1820) 4 B &amp; Ald 95
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: R v Hull (1989) 16 NSWLR 385
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: Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437
Outcome: referred to
And, the tribunal's reasons show that it did examine 'the whole position': A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 266 [18] . Despite Mr Seymour's submissions, I am not satisfied that the tribunal made any error of law in approaching its task of making an evaluation of the particular facts and circumstances before it concerning him and in making its decision as to its satisfaction under s 290(1). The tribunal considered the detailed subjective and objective circumstances of Mr Seymour's offending behaviour (cf: 216 CLR at 268 [22]) in the context of the whole of its reasons, before expressing its conclusion at [37]-[38]. The tribunal is not obliged to set out every detail of its reasoning process ( Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 449 [54] per Gummow and Heydon JJ, Gleeson CJ agreeing at 438 [1] applying Commissioner for Australilan Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592. There Northrop, Miles and French JJ held that a decision-maker could rely on an obvious and natural evaluation of admitted facts to decide that an applicant was not a fit and proper person).
Case: Reg v Gray [1900] 2 QB 36
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: Rex v Tibbits [1902] 1 KB 77
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. 71 Nowadays, all charges of contempt are invariably heard by a judge or a full court sitting on a summary trial. The procedure for trial by jury of such a charge or indictment has fallen into desuetude ( Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 595A-D per Street CJ, Hope, Glass, Samuels and Priestly JJA; In re Lonrho Plc [1990] 2 AC 154 at 177B-C; Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 393-394 [12] ; Borrie &amp; Lowe: The Law of Contempt (3 rd ed) p 469). In Attorney-General (NSW) v John Fairfax &amp; Sons Ltd (1985) 6 NSWLR 695 at 707C-E McHugh JA referred to Rex v Tibbits [1902] 1 KB 77 as the last reported case in England of a trial for contempt on indictment and he said there had not been such a trial in New South Wales in the twentieth century.
Case: Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129
Outcome: applied
The other relevant provisions of Division 3 of Part 3 of the Act and s 312, which is in Division 5 of Part 3, evince the intention of protecting the public by regulating who should be, and remain entitled to be, registered as migration agents. Those provisions are also penal in nature (even though not each of them creates a criminal offence), particularly s 303, in the sense that they expose persons already registered as migration agents to a penalty for the reasons given in Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129 esp at 146 [35]. The penal aspect is attached to these provisions for the purpose of better securing protection of the public from persons who ought not be registered as migration agents. 51 By s 15AA(1) of the Acts Interpretation Act 1901 (Cth) a purposive approach to the construction of the Act is required. That section provides: '(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.' 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.'
Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
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: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121
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.