Case: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525
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.' 31 Mr Seymour relied upon the statement that all proceedings for contempt ' must realistically be seen as criminal in nature ' as Deane J pointed out in Hinch v Attorney General (Vict) [1987] HCA 56 ; (1987) 164 CLR 15 at 49 and as approved by Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534. It was said that, accordingly, the tribunal's finding that the contempt charge determined by Buddin J was criminal was an error of law. Next he argued that that error of law affected the tribunal's finding that Mr Seymour demonstrated a lack of candour and openness by his apparently contradictory stances taken before the Court of Appeal in the earlier contempt proceedings (namely that the Law Society should not be allowed to appeal against his acquittal) and his stance in the proceedings before the tribunal (that the proceedings before Buddin J were not criminal). 34 The Authority submitted that the tribunal was correct to classify the proceedings before Buddin J as having involved a conviction of a criminal offence by reference to the character of the jurisdiction invoked under Pt 55 rr 7 and 13 of the Supreme Court Rules , the fact that the proceedings were to seek the punishment by imprisonment of Mr Seymour and the nature of the inherent jurisdiction to punish for contempt. The Authority submitted that the character of the contempt charged before Buddin J was that of disobedience, in the sense of a defiance of the authority of the Supreme Court and that there was a public injury occasioned by such defiance. It was said that, the purpose of the proceedings was to maintain the integrity of the judicial process, to advance the public interest to vindicate judicial authority or to maintain the integrity of the judicial process, relying on that class of contempt as being within a class of criminal contempt as explained in Witham v Holloway (1995) 183 CLR at 531. 73 In Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 all justices considered the historical classification of contempts as 'civil' and 'criminal' to be unsatisfactory. Brennan, Deane, Toohey and Gaudron JJ described the differences upon which the distinction of classification is based as being in many respects 'illusory' (183 CLR at 534) while McHugh J said the case for abolishing the distinction 'is a strong one' (183 CLR at 549). 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). 76 In Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534, Brennan, Deane, Toohey and Gaudron JJ said that because of the illusory nature of the differences said to exist between the 'civil' and 'criminal' classes of contempt and the fact that the usual outcome of all such proceedings is punishment, all proceedings for contempt must realistically be seen as criminal in nature. 77 That does not result in all contempt proceedings themselves being now seen to be for a criminal offence. Indeed, their Honours went on to say (183 CLR at 534): 'However, 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. There is no basis, in our view, for importing into the law of contempt the nineteenth century rules which allowed a verdict of guilty, given in a jury trial, to be quashed on appeal, but did not permit of an order for retrial. Moreover, the issue, so far as contempt is concerned, is not whether there should be a retrial, but whether there should be a rehearing.' 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.' 98 When the High Court held in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534 that all contempts are criminal in nature and must be proved on the criminal standard, it ensured that the alleged contemnor was afforded the safeguards given at common law to all accuseds. The Court also recognized that the historical classification of 'civil' and 'criminal' contempt is unsatisfactory. 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).