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Contempt of Court

Gap Constructions PL v Vigar PL [2011] NSWSC 948. Einstein J.

The importance of compliance with the Court's orders

8 In Bydand Holdings Pty Ltd v Pineland Property Holdings Pty Ltd [2009] NSWSC 584, I set out a consideration of the Courts general jurisdiction to find a person guilty of contempt of court. A number of authorities were there set out. They are relevant for present purposes. They included the following observations :

[46] In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Kirby P said this:

A conviction of contempt of Court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the Courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax& Sons Ltd(1987) 8 NSWLR 732 at 741. In this jurisdiction, contempt is a common law offence for which there is therefore no maximum penalty in this Court: R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442. Any limits which are imposed upon the Court's powers derive from the purposes stated above and the limitations expressed in the Tenth Article of the Bill of Rights 1688 which restrains the imposition of cruel or unusual punishments or "excessive fines": see Smith v R (1991) 25 NSWLR 1, noted (1991) 65 ALJ 695 (at 314).

[47] More recently Campbell J in NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 had occasion to examine a number of parameters concerning inter alia the range of possible types of penalty and the standard of proof:

"The Range of Possible Types of Penalty

20 Part 55 rule 13 Supreme Court Rules 1970 provides:
(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.
(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security."

The provisions of Part 55 rule 13 declare the Court's inherent power to punish for contempt but do not exhaust it: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309.

21 The expression "contempt of Court" covers a family of different types of legal wrong, all of which have an element in them of interfering with the administration of justice in the Courts. Some types of contempt of Court, such as interfering with witnesses, have always been recognised as crimes. Others, such as disobedience to Court orders made in civil proceedings, are not in themselves criminal, though some aspects of the criminal law can become applicable to them. That Part 55 rule 13 confers on the Court a power to punish contempt by imprisonment does not determine the question of whether it would be in accordance with principle to impose a sentence of imprisonment for the particular type of contempt arising from disobedience to Court orders made in civil proceedings.

22 One strand in the historical development of the power of the equity Court to punish for a disobedience of its orders has been to impose a sentence of imprisonment of indefinite duration, as a means of persuading the person bound by the order to comply with it. That justification for imprisonment is not available in the present case, where the Mareva order has been broken in ways which are incapable of remedy.

23 The history of the law of contempt concerning breach of orders in civil proceedings shows a fitful recognition of another strand, whereby punishment can be imposed even in relation to breaches of order which are incapable of remedy. Since the decisions of the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 and Witham v Holloway(1995) 183 CLR 525 it has been clear that punishment can be imposed for a breach of order made in civil proceedings even if the breach is incapable of remedy. The justification for the punishment in those circumstances is that it is a means of vindicating the Court's authority. In particular, imprisonment has been imposed as a sanction for breach of Mareva orders: Australian Securities and Investments Commission v Michalik and others [2004] NSWSC 1259; (2004) 52 ACSR 115. As Palmer J said in Australian Securities and Investments Commission v Michalik and others [2004] NSWSC 1259; (2004) 52 ACSR 115 at [32]:

"... in punishing a contempt, a Court of equity acts no differently from a Court of common law. The distinction between common law and equity in this context is meaningless. In punishing for contempt, a judge of the Supreme Court is vindicating the authority of the Court itself, regardless of the Division in which the judge happens to be sitting."

24 Punishment of someone for contempt should take into account the same principles as are applicable to punishment for crime:Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314. That includes the sentencing principles contained in the Crimes (Sentencing Procedure) Act 1999 A-G for NSW v Whiley (1993) 31 NSWLR 314 at 321 (in relation to its predecessor, the Sentencing Act 1989 ); Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 at 536-537;Ryan v Wright (No 2) [2004] NSWSC 1019 at [18] per Gzell J; Australian Securities and Investments Commission v Michalik and others (No 2) [2004] NSWSC 1260; (2004) 62 NSWLR 335 at 343, [38]. (An appeal relating to Ryan v Wright (No.2) was taken, but on guilt, not penalty, and was dismissed: Wright v Ryan [2005] NSWCA 368.)

25 In principle, a contempt of Court could be punished by anything within the range of penalties that can be imposed for a crime, pursuant to the Crimes (Sentencing Procedure) Act 1999 . That range consists of imprisonment (section 5) periodic detention (section 6), home detention, (section 7) community service orders (section 8) good behaviour bonds (section 9), dismissal of the charge accompanied by either a good behaviour bond or a condition that the offender participate in an intervention programme (section 10), deferral of sentence (section 11), suspended sentence (section 12), fine (section 14), or the making of a non association or a place restriction order (section 17A).

26 Sections 6 and 7 make clear that penalties of periodic detention, and home detention, respectively, can be imposed only by " a Court that has sentenced an offender to imprisonment ... ". Thus, if a sentence of imprisonment has not actually been imposed on a particular offender, it is not open to the Court to impose penalties of periodic detention or home detention on that offender.

Standard of Proof of Facts Relevant to Sentence

27 When a Judge is finding facts for the purpose of a sentence concerning crime, a fact which will be used in a way which is detrimental to the offender must be proved beyond reasonable doubt, while a fact which will be used in a way which will be advantageous to the offender can be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at 281, approving R v Storey [1998] 1 VR 359 at 369. In Witham v Holloway (1995) 183 CLR 525 the High Court held that a contempt could be found proved only if it was established beyond reasonable doubt. The reason was that the punitive nature of the proceedings brought with it the criminal standard of proof. Consistently with that principle, the standard of proof used in deciding factual matters for the purpose of imposing a sentence for contempt of Court should be the same as is used in imposing a sentence in criminal matters."

[48] These observations are adopted in the approach taken to the current application.

[49] Palmer J in Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259 [noted by Campbell J] listed as appropriate factors for consideration the following matters:

"i) the seriousness of the contempt proved;

ii) whether the contemnor was aware of the consequences to himself of what he proposed to do;

iii) the actual or potential consequences of the contempt on the proceedings in which the contempt was committed;
iv) whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest: see, for example, Von Doussa v Owens (No 3) (1982) 31 SASR 116;
v) the reason or motive for the contempt;
vi) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;
vii) whether there has been any expression of genuine contrition by the contemnor;
viii) the character and antecedents of the contemnor;
ix) what punishment is required to deter the contemnor and others of like mind from similar disobedience to the orders of the Court;
x) what punishment is required to express the Court's denunciation of the contempt".


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