Case: AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98
Outcome: referred to
In Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83 ; (2006) 149 FCR 494 at 497-8 Merkel J summarised the current state of the law on when disobedience of a Court order will constitute a contempt of court. His Honour said: "Deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: see Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106 to 107 and 112 to 113. However, the disobedience will amount to a criminal contempt if it involves 'deliberate defiance or, as it is sometimes said, if it is contumacious': see Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 530 ... However, as all proceedings for contempt are now regarded as criminal in nature, all of the charges must be proved beyond reasonable doubt: see Witham at 534." See also AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 112-3; Heatons Transport v TGWU [1973] AC 15 at 109. 28 The area of disagreement between the parties was thus narrowed to the question of whether it was necessary for the District Registrar to establish that Mr Siminton had the capacity to pay the full $50,000 fine at relevant times or whether, if he had the capacity to pay part of the fine (as it was conceded he did) and did not do so he could be found guilty of contempt. It was not disputed that a failure to comply with an order of the Court to pay a money amount could constitute a contempt (a proposition supported by decisions of the Court in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries of Australia (2001) 188 ALR 653 at 658 and World Netsafe at [29]) or that the Court had power to deal with such a contempt under s 31(1) of the Federal Court of Australia Act 1976 (Cth) and s 24 of the Judiciary Act 1903 (Cth) (as to which see Mudginberri Station at 105-6). 30 In my view a person who is ordered by the Court to make a payment within a certain time and, within the prescribed period, has the capacity to pay part, but not all, of the amount needed to satisfy the order, is bound to make that part of the payment which he or she has the capacity to make. Failure to make such part payment as the person has the capacity to make will constitute a contempt of Court. I understand Spender J's dictum in World Netsafe to admit this possibility. Where the Court order is made in favour of another person such an approach ensures that that person obtains at least some of the money to which the Court has adjudged him or her to be entitled. Where, as here, the Court has imposed a fine for contempt, a requirement of part payment to the limit of the contemnor's capacity at least partially serves "the very substantial purpose of disciplining the [contemnor] and vindicating the authority of the court": see Mudginberri at 112. It would offend common sense and a sense of justice if a person could avoid complying with a Court order to pay a particular sum when he or she had the capacity to pay most but not all of it.