Australian Securities and Investments Commission v Sigalla (No 4) - [2011] NSWSC 62

Supreme Court

New South Wales

Medium Neutral Citation: ASIC v Sigalla (No. 4) [2011] NSWSC 62
Hearing dates: 14-17 September 2010
Decision date: 18 February 2011
Before: White J
Decision:
Refer to paras [194] - [197] of judgment.

Catchwords:
CONTEMPT - whether application to punish for contempt for disobedience of court's orders were civil proceedings to which the Civil Procedure Act 2005 and Uniform Civil Procedure Rules apply - whether application is a proceeding for an offence and therefore a criminal proceeding and not a civil proceeding - whether proceedings were civil or criminal proceedings for purposes of the Evidence Act 1995 - held character of principal proceeding in which alleged contempt committed does not determine character of contempt proceeding - held proceedings for criminal contempt are proceedings for an offence but proceedings for civil contempt are not - distinction between civil and criminal contempt - held proceeding included charges of criminal contempt - held Uniform Civil Procedure Rules r 29.10 did not apply where no case to answer submission made

CONTEMPT - evidence - standard of proof - Witham v Holloway (1995) 183 CLR 525 displaced by Evidence Act - proof required beyond reasonable doubt because proceedings are criminal proceedings within definition in Evidence Act - principles in Jones v Dunkel (1959) 101 CLR 298 inapplicable

CONTEMPT - orders restrained defendants from dealing with 'their assets' - whether orders restrained dealing with moneys not beneficially owned by the defendant - trust asset is property of trustee - beneficial interest not carved out of trust property leaving the trustee with a 'bare legal title' - 'their assets' includes assets held as trustee - Federal Bank of the Middle East v Hadkinson [2000] 1 WLR 1695; [2000] 2 All ER 395 disapproved

CONTEMPT - ambiguity - orders restraining dealing with 'their assets' ambiguous - defendant not liable for contempt if breach not established on a reasonable view of what the orders prohibit - not proved beyond reasonable doubt that defendant beneficially entitled to moneys transferred - orders breached but contempt not established
CONTEMPT - proof of breach of court orders in relation to swearing affidavit of assets - genuine effort to comply - not proved beyond reasonable doubt that breach deliberate
Legislation Cited: Civil Procedure Act 2005
Supreme Court Act 1970
Evidence Act 1995
Interpretation Act 1987
Corporations Act 2001 (Cth)
Supreme Court Act 1958 (Vic)
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Land and Environment Court Act 1979
Family Law Act 1975 (Cth)
Cases Cited: ASIC v Sigalla (No 3) [2010] NSWSC 1076
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Owners of Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612
Blake v Norris (1990) 20 NSWLR 300
Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371
La Trobe University v Robinson and Pola [1973] VR 682
Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32
Aztec Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2008] NSWSC 908
Wellesley v Duke of Beaufort (1831) 2 Rus & My 639; (1831) 39 ER 538
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Re Colina; ex parte Torney [1999] HCA 57; (1999) 200 CLR 386
Pooley v Whetham (1880) 15 Ch D 435
Scott v Scott [1913] AC 417
John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351
Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483
Ahnee v Director of Public Prosecutions [1999] 2 AC 294
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Attorney General (NSW) v Whiley (1993) 31 NSWLR 314
Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527
Ryan v Wright (No 2) [2004] NSWSC 1019
Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259; (2004) 52 ACSR 115
Circuit Finance Australia Limited v Sobbi [2010] NSWSC 912
Director of Public Prosecutions (Commonwealth) v Sexton [2008] NSWSC 352
Garnett v Bradley (1878) 3 App Cas 944
Queensland Fish Board v Bunney [1979] Qd R 301
Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127
Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Athens v Randwick City Council [2005] NSWCA 317
Nuclear Utility Technology & Environmental Corporation Inc v Australian Broadcasting Corporation [2009] NSWSC 78
Matthews v ASIC [2009] NSWCA 155
Energiser Australia Pty Ltd v Remington Products Australia Pty Ltd (No 4) [2008] FCA 864
Australian Securities & Investments Commission v Reid [2006] FCA 699
Australian Securities & Investments Commission v Matthews [2000] NSWSC 201
Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117
Street v Hearne [2007] NSWCA 113; (2007) 70 NSWLR 231
Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92
Doyle v Commonwealth [1985] HCA 46; (1985) 156 CLR 510
ASIC v Sigalla (No 2) [2010] NSWSC 792
In the Marriage of J A and D M Lindsey [1995] FamCA 117; (1995) 19 Fam LR 649
In the marriage of Tate [2002] FamCA 356; (2002) 169 FLR 190; (2002) 29 Fam LR 195
Comptroller of Stamps (Vic) v Howard-Smith [1936] HCA 12; (1936) 54 CLR 614
Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4; (1998) 192 CLR 226
CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53; (2005) 224 CLR 98
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510
Re Transphere Pty Ltd (1986) 5 NSWLR 309
Commissioner of Taxation v Linter Textiles Ltd (in liq) [2005] HCA 20; (2005) 220 CLR 592
Federal Bank of the Middle East Ltd v Hadkinson [2000] 1 WLR 1695; [2000] 2 All ER 395
R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59
Black & Black v S Freedman & Co [1910] HCA 58; (1910) 12 CLR 105
Wyszynski v Bill [2005] NSWSC 110
Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567
Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387
Adler v ASIC [2003] NSWCA 131; (2003) 46 ASCR 504
RPS v R [2000] HCA 3; (2000) 199 CLR 620
Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50
Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737
Texts Cited: William Hawkins, The Pleas of the Crown, 8th ed (1824) Ch 6
Cross on Evidence, LexisNexis looseleaf edition
Category: Separate question
Parties: Australian Securities and Investments Commission - Plaintiff
Andrew Sigalla - Defendant
Representation: Counsel:
D R Stack (Plaintiff)
S Robb QC with C Botsman (Defendant)
Solicitors:
Conrad Gray Solicitor (Plaintiff)
n/a (Defendant)

File Number(s): 2009/290316

Judgment

HIS HONOUR : On 8 September 2010 I upheld the submission of counsel for Mr Sigalla that he had no case to answer in respect of many of the charges of the further amended interlocutory process. I found that he had a case to answer in respect of the charges in paras 1, 31, and 33-40 ( ASIC v Sigalla (No 3) [2010] NSWSC 1076). Mr Sigalla did not make a no case to answer submission in respect of the charges in paras 41 and 42 of the further amended interlocutory process. This judgment concerns the remaining charges.

Preliminary issue: civil or criminal proceedings

There is a preliminary matter to be dealt with. Prior to counsel for Mr Sigalla making his submission that there was no case to answer, I heard argument on the question as to whether, if such a submission were made but was not successful, or was not wholly successful, Mr Sigalla would then be entitled to adduce evidence otherwise than with the leave of the court. Mr Stack who appears for ASIC submitted that the position was governed by r 29.10 of the Uniform Civil Procedure Rules 2005 and if Mr Sigalla failed to establish that there was no case to answer in respect of any of the charges then he could not adduce evidence in the proceedings except by leave of the court by reason of r 29.10(4). He indicated that ASIC would oppose leave being granted. Rule 29.10 of the Uniform Civil Procedure Rules provides:

" 29.10 Judgment for want of evidence

(cf SCR Part 34, rule 8; DCR Part 26, rule 8; LCR Part 21, rule 6)

(1) An opposite party may apply to the court to give judgment for the opposite party, either generally or on any claim for relief in the proceedings, on the ground that, on the evidence given, a judgment for the beginning party could not be supported.

(2) Such an application may be made at any time after the conclusion of the evidence for the beginning party in his or her case in chief.

(3) The court may not give judgment under this rule unless the opposite party satisfies the court that, on the evidence given, a judgment for the beginning party could not be supported.

(4) If the opposite party fails to satisfy the court that, on the evidence given, a judgment for the beginning party could not be supported, the opposite party may not adduce evidence or further evidence in the proceedings generally or on the claim for relief concerned, as the case may be, except by leave of the court.

(5) If not all opposite parties apply to the court under subrule (1), the court must not deal with any such application before the conclusion of the evidence given for all parties. "

Mr Botsman of counsel who appeared for Mr Sigalla submitted that the Uniform Civil Procedure Rules did not apply as the present application was not a " civil proceeding " within the meaning of the Civil Procedure Act 2005. He submitted that the present application is a criminal proceeding and he was entitled to make a no case to answer submission at the conclusion of ASIC's case, without being put in jeopardy that if the submission were unsuccessful he would not be entitled as of right to adduce evidence in Mr Sigalla's case.

Mr Sigalla was entitled to know what would be the consequence of his making a no case to answer submission. I heard argument on that question in advance of the submission being made. I am indebted to both counsel for the thoroughness of their arguments.

Mr Botsman provided a brief outline of the nature of the no case submission to be advanced. At the close of argument I had not reached a concluded view as to whether r 29.10 applied. However, I was satisfied that if r 29.10 applied I would give leave to Mr Sigalla to adduce evidence if his no case to answer submission were wholly or partly unsuccessful. I said:

" 1 The question whether r 29.10 applies is a difficult one. But rather than delay matters, I consider that I should indicate how, in any event, I think the proceedings should move forward.

2 If r 29.10 does not apply, then the defendant is entitled to make a no case to answer submission at the close of the plaintiff's case without being put to an election whether or not to call evidence, that is, without needing leave to call evidence if the application fails. The test for determining whether or not there is a case to answer will be the test in May v O'Sullivan [1995] HCA 38; (1955) 92 CLR 654, as explained in Amalgamated Television v Marsden [2001] NSWCA 32.

3 If this is a civil proceeding to which r 29.10 applies, then the same approach to determining whether there is a case to answer should be adopted, because the proceedings are essentially criminal in nature. Safeguards similar to those appropriate in criminal proceedings ought to apply.

4 Accordingly, I can indicate now that if I find that r 29.10 applies, then I will give leave to the defendant to adduce evidence generally, including in respect of any charges in respect of which a no case to answer submission might be made and might be unsuccessful.

5 In due course, I will give a full statement of my reasons for that conclusion, but I don't think I ought to delay the further progress of the case while they are prepared. "

Similar issues are raised in relation to the rules of evidence. Mr Stack accepted that the charges must be established beyond reasonable doubt, but submitted that inferences could be drawn on the principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 that apply to civil proceedings, for what he said was Mr Sigalla's failure to call evidence.

The submissions raise the distinction between civil and criminal contempts. Disobedience of a court's order by a party against whom the order is made is usually classified as a civil contempt. If contempt proceedings are brought, their object is usually to coerce the recalcitrant defendant into compliance or into remedying the breach. If the defendant refuses to do what he is ordered he may be imprisoned or fined, or, if the defendant is a company, its assets may be sequestrated. Fines may be coercive, particularly where they accrue until the breach is remedied. If the defendant is imprisoned for refusing to obey an order, on purging his contempt, he is entitled to be released.

Criminal contempts involve interference with the administration of justice. They are not easily categorised. They include contempt in the face of the court, such as speaking insulting words to a judge in the discharge of his or her office, making affray or other disturbance that disrupts the business of the court, refusing to be sworn to give evidence or refusing to answer questions, interfering with witnesses, seeking to coerce or improperly influence a judge, publishing material that may interfere with a fair trial, and assisting a party to breach a court's order. A contumacious disobedience to the court's order that exhibits defiance of the court is also a criminal contempt.

Proceedings whose essential purpose is to punish the contemnor for past breaches, rather than to coerce the contemnor into complying with the orders or to remedy past breaches, are classified as criminal contempts.

In Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 Brennan, Deane, Toohey and Gaudron JJ held (at 534) that the differences upon which the distinction between civil contempts and criminal contempts is drawn are illusory. Punishment is punishment. The High Court held that all proceedings for contempt must realistically be seen as criminal in nature and accordingly must be proved beyond reasonable doubt. Their Honours went on to say that:

" 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. "

Nonetheless, the distinction between civil and criminal contempts has not been abolished. It remains enshrined in legislation ( Supreme Court Act 1970, s 101(5) and (6), s 101A; Hearne v Street [2008] HCA 36; (2008) 235 CLR 125). The distinction is important in determining whether the present application to commit Mr Sigalla for contempt is a civil proceeding within the meaning of s 4 of the Civil Procedure Act, and to the application of the Evidence Act 1995.

Mr Stack submitted that although charges for contempt are essentially criminal in nature, it is well established that proceedings for contempt, whether characterised as civil contempt or criminal contempt, were brought in the court's civil jurisdiction and were governed by the rules of civil procedure.

So far as I am aware, since Witham v Holloway was decided, in all proceedings for contempt brought in this court or in the Federal Court, it has been held or assumed that the charges must be proved beyond reasonable doubt, whether classified as civil or criminal contempts. However, Witham v Holloway was decided on the basis of the law as it stood before the introduction of the Evidence Act. The Evidence Act contains different provisions for criminal and civil proceedings, including provisions dealing with onus of proof. " Civil proceedings " and " criminal proceedings " are defined expressions. Likewise the Civil Procedure Act and the Uniform Civil Procedure Rules apply to civil proceedings. It is also a defined expression. The question whether the Civil Procedure Act and Uniform Civil Procedure Rules apply (which affects not only the making of a no case to answer submission, but also the power to order costs), and the question of what rules of evidence apply, depend on the construction of those definitions.

Civil Procedure Act 2005

Parts 3-9 of the Civil Procedure Act and the Uniform Civil Procedure Rules apply to all civil proceedings in the Supreme Court (s 4 and sch 1; and r 1.5 and sch 1, respectively). The expression " civil proceedings " is defined in s 3 of the Civil Procedure Act . That section provides relevantly:

" 3 Definitions

(1) In this Act:

civil proceedings means any proceedings other than criminal proceedings.

...

criminal proceedings means proceedings against a person for an offence (whether summary or indictable), and includes the following:

(a) committal proceedings,

(b) proceedings relating to bail,

(c) proceedings relating to sentence,

(d) proceedings on an appeal against conviction or sentence. "

" Offence " is not defined. Nor is " proceedings ".

" Civil proceedings " has the same meaning in the Uniform Civil Procedure Rules as it does in the Civil Procedure Act ( Interpretation Act 1987, s 11).

Mr Botsman, for Mr Sigalla, submitted that the present application for punishment of Mr Sigalla for alleged contempt is a " criminal proceeding " within this definition as it is a proceeding against him for an offence.

The Evidence Act 1995

The operative provisions of the Evidence Act commenced on 1 September 1995. That Act specifies a civil standard of proof on the balance of probabilities, but having regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged, in a " civil proceeding " (s 140). It specifies the criminal standard of proof beyond reasonable doubt in a " criminal proceeding " (s 141). The Dictionary to the Evidence Act defines " civil proceeding " as " a proceeding other than a criminal proceeding ". A " criminal proceeding " is defined as follows:

" criminal proceeding means a prosecution for an offence and includes:

(a) a proceeding for the committal of a person for trial or sentence for an offence, and

(b) a proceeding relating to bail,

but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth."

" Offence " is defined as " an offence against or arising under an Australian law ", and " Australian law " means " a law of the Commonwealth, a State or Territory " (Dictionary, Part 1). This is clarified by clause 9 of Part 2 of the Dictionary, which provides:

" 9 References to laws

(1) A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

(2) A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia."

The Current Proceedings

The present application is brought by interlocutory process in proceedings commenced by ASIC by way of originating process on 26 August 2009. In its originating process ASIC sought orders pursuant to s 1323 of the Corporations Act 2001 (Cth), s 66 of the Supreme Court Act 1970, and in the inherent jurisdiction of the court, for the appointment of a receiver to the assets of five named defendants, or alternatively orders to prevent the removal and disposal of the defendants' assets. Those proceedings are unquestionably civil proceedings.

Part 55, r 6(1) of the Supreme Court Rules provides:

" 6 Procedure generally

(1) Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders."

The application was brought by interlocutory process, presumably because it was thought that r 2.2 of the Supreme Court (Corporations) Rules 1999 applies. It is unnecessary to consider whether the application was properly brought by way of interlocutory process under that rule or whether it should have been brought by way of notice of motion. In either case, the application is made in the proceedings already commenced for relief under s 1323 of the Corporations Act .

Mr Stack for ASIC submitted that because the application for punishment of Mr Sigalla for alleged contempt is made in the existing proceedings and those proceedings are civil proceedings, the rules of civil procedure apply, whether or not the application, if considered as a separate proceeding, would be so characterised. Mr Botsman submitted that the application was a discrete and separate matter and a separate proceeding, as evidenced by the fact that had separate proceedings been commenced they could have been continued unless the court otherwise ordered. Moreover, as a matter of substance, the present application is discrete and separate from the application under s 1323 of the Corporations Act that led to the making of the orders with the alleged breach of which Mr Sigalla has been charged.

I have concluded that the application to punish Mr Sigalla for contempt is a separate proceeding from the proceeding in which the orders allegedly breached were made, and its character is not determined by the character of the principal proceedings. I have concluded that proceedings to punish for a civil contempt are civil proceedings, but proceedings to punish for criminal contempt are not. I have concluded that these are criminal proceedings within the meaning of the Civil Procedure Act , the Uniform Civil Procedure Rules and the Evidence Act because some of the alleged contempts are criminal contempts. It follows that I have concluded that r 29.10 of the Uniform Civil Procedure Rules did not apply. My reasons follow.

Character of principal proceedings does not determine character of contempt proceedings

The word "proceeding" is capable of a variety of meanings. Its meaning depends upon the statutory context and the objects of the legislation in question. It may mean the whole of the processes that come before the court under the umbrella of one court file number (e.g. Owners of Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612 at [397]). It may mean the whole of a cause of action (e.g. Blake v Norris (1990) 20 NSWLR 300). It may mean a step in an action ( Blake v Norris at 306; Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371 at 388).

The effect and purpose of s 4 of the Civil Procedure Act is that criminal proceedings not be governed by that Act or the Uniform Civil Procedure Rules. For reasons which follow, prosecution of a criminal contempt is prosecution of a common law offence. Where the substance of the "proceeding" is a prosecution for a common law offence, that purpose would be frustrated by treating the motion that an alleged contemnor be punished for criminal contempt as the same proceeding as the proceeding in connection with which the contempt was committed.

It would defeat the purpose of the Evidence Act in establishing stricter evidentiary rules for criminal proceedings and be inconsistent with the reasoning in Witham v Holloway to say that even where criminal contempt is alleged, the character of the proceeding for the purposes of the Evidence Act is to be taken from the character of the principal proceeding from which the contempt arose.

In Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32, discussed in more detail at [68]-[72] below, the Court of Appeal treated the notice of motion charging the respondent with contempt as a criminal proceeding to which the principles of criminal law and procedure applied, notwithstanding that it arose in the course of a civil proceeding.

In Aztec Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2008] NSWSC 908 the question was whether the court had power to refer contempt proceedings to mediation pursuant to s 26 of the Civil Procedure Act . Hamilton J held that there was power to do so if the contempt proceedings were civil proceedings, but not if they were criminal proceedings because s 26 applied only to civil proceedings (at [26]-[27]). The proceedings were held to be civil proceedings because the contempt charged was a civil and not criminal contempt. The contempt alleged was a wilful contempt, but not a contumacious contempt and the purpose of the proceedings was to obtain compliance rather than inflict punishment (at [31]-[33]). His Honour did not consider that the question whether the application was a " civil proceeding " was to be determined by the character of the principal proceeding in which the notice of motion alleging the contempt was filed.

Consistently with those cases, a motion that an alleged contemnor be punished for contempt should be characterised as a separate proceeding even though it is required to be brought in the principal proceeding. In substance the present application is a separate proceeding. The principal proceeding provides only the background against which the charges are to be considered. The allegations in the application and the evidence adduced in support of them are separate and distinct from the claims and the evidence in support of the claims in the principal proceedings.

The fact that the present application would be validly commenced even if brought separately, demonstrates that it is substantively a separate proceeding.

For these reasons, I consider that the present application should not be characterised as a civil proceeding merely because it is brought in a civil proceeding.

I do not consider that the decision of the Full Court of the Supreme Court of Victoria in La Trobe University v Robinson and Pola [1973] VR 682 indicates a contrary conclusion. Mr Stack did not submit otherwise. One issue in that case was whether an appeal lay to the Full Court against an order by the primary judge dismissing an application to set aside an order of another judge giving leave to issue a writ of attachment. The appellants were student demonstrators at La Trobe University who had defied orders prohibiting them from trespassing. They were attached for contempt. The University argued that no appeal lay to the Full Court because the contempts committed in the civil action were criminal in nature and there was no statutory ground of appeal in a criminal matter (at 688). In rejecting that submission Smith ACJ, with whom Adam and Newton JJ agreed, held (at 688) that because the action in which the injunctions were ordered was a civil action, the appeal was not in a criminal matter but a civil matter. The Full Court held that the question whether the appeal was in a criminal matter was determined not by the nature of the contempt alleged, but by the nature of the action in which the order was made. That was a different question from whether the application to charge the appellants with contempt was a criminal matter. The issue concerned the construction of the relevant provisions of the Supreme Court Act 1958 (Vic) that had no similarity to the statutory provisions relevant to the present case.

Criminal contempt but not civil contempt is a common law offence

Proceedings for contempt, whether civil or criminal, have sometimes been described as proceedings for an offence. Wellesley v Duke of Beaufort (1831) 2 Rus & My 639; (1831) 39 ER 538 concerned contempt by a member of the House of Commons by removing his daughter, who was a ward of the court. He claimed that he could not be attached for the contempt because of parliamentary privilege. Lord Brougham LC held that if the contempt showed criminality and the sentence was penal, the privilege was ousted (at 667, 548). It was contended that parliamentary privilege was a protection against arrest and confinement in all cases except felony, treason and breach of the peace. In rejecting this argument Lord Brougham LC said (at 663, 547):

" There are, however, many offences - and this is the other ground of my denying that to be the right distinction - offences for which no man can doubt the right of the Courts of Common Pleas, of Exchequer, and of Chancery to commit; offences for which till now their right to commit has never been disputed; offences involving no breach of the peace, and for which by every day practice, parties are committed by those Courts, and by the Court of Kings Bench, not sitting as a criminal Court. "

In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, a case concerning civil contempt, Gibbs CJ, Mason, Wilson and Deane JJ said (at 115):

" Contempt of court is a distinctive offence attracting remedies which are sui generis ... "

In Re Colina; ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 at [109] and [111] (428 and 429) Hayne J also referred to contempts as constituting offences, without distinction as to whether the contempts were civil or criminal.

However, in the context of legislation dealing with "offences" or a "criminal cause or matter" it has been held that a civil contempt is not an offence ( Pooley v Whetham (1880) 15 Ch D 435 at 440, 443 and 445; Scott v Scott [1913] AC 417 at 440, 443, 444, 455-462, 486). In John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 the plurality of the High Court (Dixon CJ, Fullagar, Kitto and Taylor JJ) said (at 364) that contempt through disobedience of a court's order was not criminal. In Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 497-498, Windeyer J said that civil contempts do not involve an offence.

On the other hand, criminal contempts of court have long been treated as common law offences, although sometimes described as " an offence sui generis and ... not part of the ordinary criminal law " ( Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 306). Criminal contempts of court were characterised as common law offences in William Hawkins, The Pleas of the Crown, 8 th ed (1824) Ch 6, where they are classified as one of a number of offences against the King, including contempts against the King's palace, his prerogative, person or government, and title. Thus it is and always was a common law offence to speak contemptuous words to the judge in execution of his or her office or to make an affray in the courts (this is not of course an all inclusive description of criminal contempts).

In Re Colina; ex parte Torney the respondent was charged with contempt of scandalising the court. This was described by the majority of the High Court as a common law offence triable summarily (at 393, 399, 428-429, 433). Kirby J also held that the contempt was an offence (at 411-412).

In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309, a case of criminal contempt, Kirby P, with whom Hope AJA agreed, said (at 314):

" A conviction of contempt of court is a conviction of an offence, criminal in nature. "

This was repeated by the Court of Appeal in Attorney General (NSW) v Whiley (1993) 31 NSWLR 314 at 320. That was another case of criminal contempt. The Court said (at 320):

" A conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular. ...

Being a common law offence there is no statutory maximum penalty. "

It has been held that the Crimes (Sentencing Procedure) Act 1999 is applicable where punishment for contempt involves a custodial sentence ( Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527; Ryan v Wright (No 2) [2004] NSWSC 1019 at [21]; Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259; (2004) 52 ACSR 115 at [26]; Circuit Finance Australia Limited v Sobbi [2010] NSWSC 912 at [6]). That is so at least for a criminal contempt. The Act applies to the sentencing of an "offender", meaning a person whom a court has found guilty of an "offence". "Offence" is not otherwise defined.

Mr Stack submitted that the definition of "criminal proceedings" in s 3 of the Civil Procedure Act referred only to those offences as were truly criminal in character. I agree. The dichotomy between civil and criminal proceedings in the Civil Procedure Act indicates that this is so. The Uniform Civil Procedure Rules assume that the Rules apply to at least some cases of contempt.

Rule 1.7 of the Uniform Civil Procedure Rules provides that the rules of court specified in Schedule 2 prevail over the Uniform Civil Procedure Rules. One of such rules is r 7 of Pt 55 of the Supreme Court Rules. It requires that a statement of charge specifying the contempt of which the contemnor is alleged to be guilty be subscribed to, or filed with, the notice of motion or summons. The necessary implication of r 1.7 is that the Uniform Rules Committee considered that the Rules would apply to at least some charges of contempt. Were it otherwise there would be no question of Pt 55 r 7 of the Supreme Court Rules prevailing over the Uniform Civil Procedure Rules.

However, it is not legitimate to construe the definition of " civil proceedings " in s 3 of the Civil Procedure Act by amendments to the Rules initially contained in Schedule 7 to the Civil Procedure Act made by the Uniform Rules Committee. Section 9 of the Civil Procedure Act only empowered the Committee to amend the Rules in conformity with the Act. Schedule 7 of the Civil Procedure Act (which originally contained the Uniform Civil Procedure Rules, albeit that the Schedule was repealed by Schedule 5 of the same Act) did not include the reference to Pt 55 r 7 of the Supreme Court Rules in Schedule 2. That reference was included by an amendment to the Rules made by the Uniform Rules Committee prior to the commencement of the Act (Schedule 2 was amended by the insertion of the reference to Pt 55 of the Supreme Court Rules by Uniform Civil Procedure Rules (Amendment No. 1) No. 395 of 2005, made by the Rule Committee on 1 August 2005. It commenced on the commencement of s 9 of the Civil Procedure Act ).

Nonetheless, it is unlikely that the definition of " civil proceedings " in the Civil Procedure Act was intended to exclude all cases of contempt, as this would mean that there would be no statutory power to order costs in contempt proceedings. An order for costs, usually on the indemnity basis, is often the only sanction against a proved civil contempt.

In Director of Public Prosecutions (Commonwealth) v Sexton [2008] NSWSC 352, Howie J held that the Criminal Procedure Act 1986 (NSW) did not apply to proceedings for contempt, and that the Supreme Court Act and the Supreme Court Rules applied to the making of an order for costs. His Honour's reasons for concluding that the Criminal Procedure Act did not apply even to a case of criminal contempt are compelling. However, his Honour did not identify any specific power to order costs under the Supreme Court Act or the Supreme Court Rules. His Honour did not refer to the Civil Procedure Act, or to the Uniform Civil Procedure Rules. It is not clear what provision of the Supreme Court Act or the Supreme Court Rules his Honour had in mind as conferring a power to order costs. Section 76 of the Supreme Court Act formerly conferred power to order costs in respect of proceedings governed by that Act, including any proceedings for contempt brought in accordance with Pt 55, whether the contempt was civil or criminal. That section was repealed by clause 5.47 [3] of Schedule 5 of the Civil Procedure Act . Part 55 of the Supreme Court Rules does not deal with costs.

Howie J did not find that the proceedings were civil proceedings governed by the Civil Procedure Act to which s 98 of that Act (which deals with costs) applied. His Honour did not say so and did not address the issues which would then arise.

It seems to me, with respect, that as the courts of common law had no inherent jurisdiction to order costs ( Garnett v Bradley (1878) 3 App Cas 944 at 962; Queensland Fish Board v Bunney [1979] Qd R 301 at 303), and as the Court of Chancery would have had no jurisdiction to deal with a criminal contempt such as that alleged in Director of Public Prosecutions (Commonwealth) v Sexton , the court had no jurisdiction to order costs in that case if, as I consider to be the case, it was a proceeding for an offence within the definition of "criminal proceeding" in the Civil Procedure Act .

The problem did not arise prior to the introduction of the Civil Procedure Act because the Supreme Court had power to order costs under s 76 of the Supreme Court Act in all cases of contempt, civil or criminal. In my view it retains that power in respect of civil contempts which should not be characterised as proceedings for an offence ( Scott v Scott ; John Fairfax & Sons Pty Ltd v McRae at 364; Australian Consolidated Press Limited v Morgan at 497-498). In cases of civil contempt, the award of costs, often on the indemnity basis, is an important sanction, and not infrequently a sufficient sanction, to mark the court's condemnation of the breach of its orders.

If the current application is to deal with Mr Sigalla for alleged civil contempts, I am of the view that the proceedings are civil proceedings to which r 29.10 applies. But that is not the case if Mr Sigalla is charged with one or more criminal contempts. If the application charging Mr Sigalla with contempt is properly characterised as a proceeding for criminal contempt, then unless there be authority to the contrary, I consider that the proceedings are proceedings for an offence and not civil proceedings to which the Uniform Civil Procedure Rules apply. Although tried summarily and assigned by Pt 55 r 6 to the Division in which the proceedings to which the contempt relates were instituted, in this case the Equity Division, the proceedings are truly criminal, and not "quasi-criminal". The question is whether Witham v Holloway , or other binding authorities, are authority to the contrary.

Mr Stack submitted that cases of contempt are sui generis and whether characterised as civil contempts or criminal contempts (itself an illusory distinction ( Witham v Holloway at 534)), such contempts were not "offences" within the definition of " criminal proceedings " in s 3 of the Civil Procedure Act . He referred to numerous cases, in particular Witham v Holloway , which have held that although all proceedings for contempt are in their nature criminal, rules of civil procedure apply. The problem with these authorities is that they either involved different statutory provisions, or did not address the applicable statutory provision.

The background to Witham v Holloway is Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127. McLelland J (as his Honour then was) was concerned with a breach of an undertaking where the breach had been established on the balance of probabilities, but not beyond reasonable doubt. His Honour concluded that in the case of a wholly civil contempt the civil standard of proof applied, although the degree of satisfaction for which that standard called varied according to the gravity of the facts to be proved and the consequences flowing from the finding. In the case of a criminal contempt proof was required beyond reasonable doubt (at 136-137). His Honour characterised the charge before him as a civil contempt and upheld the charge applying the civil onus of proof.

This decision was followed at first instance in Witham v Holloway , but was overruled by the High Court in that case. Brennan, Deane, Toohey and Gaudron JJ described the distinction between civil and criminal contempts as follows (at 530):

" In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.14 As well, in the case of some orders, described in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd as involving 'arbitrary classification', disobedience constitutes criminal contempt. They are orders forbidding interference with a ward of court, orders for the delivery up of a child and non-molestation orders. And it has been held that breach of a court order by a solicitor or by a liquidator is also a criminal contempt. "

Their Honours also said (at 531):

"The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process. "

Their Honours went on to reject as illusory the differences between civil and criminal contempts on which the distinction is based. In the course of doing so, their Honours rejected the suggested distinction between proceedings in the public interest and those that are coercive or remedial in the interests of the private individual as being a satisfactory basis for the distinction between civil and criminal contempt (at 532). Their Honours concluded (at 534):

" 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.

The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch , that all proceedings for contempt 'must realistically be seen as criminal in nature'. The consequence is that all charges of contempt must be proved beyond reasonable doubt. "

There was no question in Witham v Holloway of construing a statutory definition that prescribed different rules of procedure, or different rules of evidence, according to whether or not the proceedings were for an offence.

A further question arose in Witham v Holloway as to whether there was power to order a retrial. Counsel submitted that the only power to order a retrial of a criminal matter was to be found in s 8 of the Criminal Appeal Act 1912 and as the appeal was not under that Act there could be no order for retrial (at 534). It was in this context that Brennan, Deane, Toohey and Gaudron JJ said (partly quoted at [10] above):

" 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. "

Mr Stack submitted that this showed that even though the application is essentially criminal in nature, the proceeding is nonetheless a civil proceeding to which rules of civil procedure, other than the onus of proof, apply. He submitted that this is confirmed by subsequent authority.

At the time Witham v Holloway was decided, s 48(2)(j) of the Supreme Court Act assigned to the Court of Appeal proceedings in the Court for the punishment of contempt of the Court or of any other court. Subsection 48(4) provided:

" 48

...

(4) This section does not affect -

(a) the powers of the Court in a Division in relation to punishment for -

(i) contempt in the face of the Court in that Division or in the hearing of the Court in that Division;

(ii) disobedience to a judgment or order of the Court in that Division; or

(iii) breach of an undertaking given to the Court in that Division; or

... "

Hence, all contempts, whether characterised as criminal or civil, arising from disobedience to a judgment or order of the court in a Division were assigned to the Division. Under s 101(1)(a) an appeal from the judgment of the Division lay to the Court of Appeal. Under s 75A(10) the Court of Appeal could make any order which the nature of the case required. This included the power to order a re-hearing (per McHugh J at 549-550). The Criminal Appeal Act 1912 provided, amongst other things, for an appeal to the Court of Criminal Appeal by a person convicted of an offence by the Supreme Court in its summary jurisdiction (s 5AA). That section did not apply to contempt proceedings whether civil or criminal in character, as these were specifically dealt with by s 48 of the Supreme Court Act . Section 17 of the Supreme Court Act provided that that Act did not apply to proceedings specified in the Third Schedule, which listed various types of criminal proceedings, but not proceedings for contempt. As Howie J held in Director of Public Prosecutions (Commonwealth) v Sexton , proceedings for contempt are governed by the Supreme Court Act and the Supreme Court Rules (at [8]-[12]).

In deciding whether there was power to order a re-hearing, no question of statutory construction arose in Witham v Holloway such as arises now under the Civil Procedure Act and the Evidence Act . The High Court was not required to consider, and did not consider, whether the proceedings were properly characterised as proceedings for an offence. It may be inferred from the court's insistence that all charges of contempt are criminal nature that had the question arisen, it is unlikely to have been held that no proceedings for contempt are proceedings for an offence.

On the other hand, it cannot be assumed that because the High Court said all contempts were criminal "in nature", that it would have held that all charges of contempt were charges of an offence. That would have required departure from previous decisions of the highest authority, including the High Court itself (see para [36] above). Subsequently, in Hearne v Street , when construing a statutory reference to "criminal contempt", the High Court applied the traditional distinction. It did not say that all contempts are criminal in nature and therefore are all criminal contempts.

In Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15, the contempt alleged was a criminal contempt for publishing material intending to influence court proceedings. The offenders were convicted and fined and the individual defendant was also imprisoned. Appeals against the conviction were dismissed by the High Court. On the question of costs the High Court said as follows (at 89-90):

"The appellants submit that in the exercise of its discretion the Court should not make any order for costs. An analogy is sought to be drawn between the present case and an application for special leave to appeal following a trial on indictment for a criminal offence. In the later kind of case, the established practice of the Court is not to make any order for costs, save where the Crown is an unsuccessful applicant: Reg. v. Martin (1984) 58 ALJR 217 at 218; 53 ALR 84 at 84.

However, is our view [sic] , the analogy which the appellants seek to draw is not apt for present purposes. Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event. There are many instances of the application of this rule to cases of contempt of court in this Court, including Consolidated Press Ltd. v. McRae (1955) 93 CLR 325, John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, James v Robinson (1963) 109 CLR 593 and Doyle v The Commonwealth (1985) 156 CLR 510: see also R v Taylor; Ex parte Roach (1951) 82 CLR 587."

The application involved no question of statutory construction.

In Re Colina; Ex Parte Torney , Hayne J said (at 428 [109]):

" [109] Although I accept that it is right to speak of an 'offence' of contempt, the use of that term should not be permitted to obscure the significant differences between the powers that are invoked against an alleged contemnor and those that are set in train under the criminal law. As was said in Hinch v Attorney-General (Vic) [No 2]:

'Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.'

The power to punish for contempt is an inherent power of courts charged with 'the function of superintending the administration of justice'. It is a power that is invoked sparingly but in a very wide variety of circumstances. There are, in that sense, many forms of contempt; there is no single 'offence' of the kind that the criminal law knows. "

I do not understand Hayne J to be saying that no offences of the kind that have been traditionally classified as criminal contempts are offences against the criminal law. Rather, his Honour was emphasising that there are many forms of contempt and not a single offence (see at [110]).

Mr Stack placed particular reliance on the decision of the Court of Appeal in Athens v Randwick City Council [2005] NSWCA 317 (reported in part but not on this point at (2005) 64 NSWLR 58). Hodgson JA, with whom Santow and Tobias JJA agreed, noted (at [62]) the definitions of " civil proceeding " and " criminal proceeding " in the Evidence Act but did not decide whether the proceedings at hand were a " prosecution for an offence " for the purposes of the Evidence Act . Nonetheless the Court of Appeal rejected challenges to the procedure adopted in the Land and Environment Court. The appellant contended that he had been denied the opportunity to make a submission that there was no case to answer, and that the Council had been permitted to address in reply. In rejecting the application for the charges to be dismissed on the ground that there was no case to answer, the primary judge said that the proceedings remained civil proceedings and were criminal " only to the extent that the requisite standard of proof for a criminal proceedings is to be applied " (at [87]). The Court of Appeal shortly rejected the challenges to these rulings. Hodgson JA said:

" [89] In my opinion, Witham v Holloway makes it clear that the procedure in contempt proceedings is not the same as in a criminal trial.

[90] In my opinion it was within the discretion of the primary judge not to entertain a submission of no prima facie case; and in any event, it is plain that there was a prima facie case.

[91] In my opinion, it was within his discretion to allow an address in reply. In any event, there was no conceivable prejudice in circumstances where the appellants were themselves allowed a further reply.

[92] In my opinion also it was within the primary judge's discretion to allow the re-opening of the case. No error is shown in his reasons. No tactical advantage had been sought by the Council. No prejudice was caused to the appellants, as compared to the situation they would have been in if the Council's affidavits had been read at the appropriate time. "

Presumably in para [89] of the judgment Hodgson JA was referring to the sentence in Witham v Holloway that " to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge ".

The hearing in the Land and Environment Court was before the introduction of the Civil Procedure Act . The only consideration given to whether the proceedings were "proceedings for an offence" was in the context of the Evidence Act , and that question was not decided. Section 67(1)(d) of the Land and Environment Court Act 1979 provided that the Land and Environment Court had and could exercise the functions vested in the Supreme Court in respect of the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Court or of any process issuing out of the Court. All that can be said is that the Court of Appeal found that the proceedings in the Land and Environment Court under the Land and Environment Court Act at that time were civil proceedings to which rules of civil procedure applied. That conclusion does not govern the present question. Moreover, the proceedings were, or were treated as, proceedings for a civil contempt ( Nuclear Utility Technology & Environmental Corporation Inc v Australian Broadcasting Corporation [2009] NSWSC 78 at [97]).

Athens v Randwick City Council is not authority that all cases of contempt are to be treated as civil proceedings to which rules of civil procedure apply. The Court of Appeal did not seek to distinguish or explain Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32. (The decision is reported in (2001) 122 A Crim R 166, where it is wrongly stated to be a decision of the Court of Criminal Appeal and the wrong neutral citation is given). That was a case of alleged contempt of orders of the Court of Appeal in defamation proceedings prohibiting the publication of the name or other material likely to identify a witness proposed to be called in the proceedings. The case was heard in the Court of Appeal's original jurisdiction because the application was to punish an alleged contempt for disobedience of the Court of Appeal's orders. Those proceedings were assigned to the Court of Appeal ( Supreme Court Act , s 48(2)(i)(ii)).

Ipp AJA, with whom Powell and Giles JJA agreed, said (at [32]) that it was undoubtedly correct that the application was " criminal in nature and the criminal standard of proof applied ". His Honour also recorded that the parties accepted that " as the proceedings were criminal in nature, Mr Marsden was entitled to make a no case to answer submission at the close of the claimant's case, and the parties accepted that the general principles governing such submissions were of application " (at [33]). The Court of Appeal did not suggest that this position was incorrect. Rather, the no case to answer submission was entertained and upheld. In so doing, the court held that not only in respect of jury trials, but in criminal trials by judge alone, the question to be determined on a no case to answer submission at the close of the prosecution case was whether the prosecution evidence, taken at its highest, was capable of establishing guilt beyond reasonable doubt (at [48]-[50]). There was no suggestion that the proper approach on the no case to answer submission was that applicable in a civil proceeding, where the court may consider whether evidence is so unsatisfactory that it should not be accepted ( Cross on Evidence , LexisNexis looseleaf edition at [11090]).

The Court of Appeal held that the evidence was not capable of establishing beyond reasonable doubt Mr Marsden's knowledge of the orders or their substance prior to the publications alleged to constitute the contempts.

The Court of Appeal did not characterise the contempts as criminal or civil as it accepted that they were criminal in nature. Although the contempts alleged were disobedience of the orders of the Court of Appeal, they were made to protect the safety of a third party rather than the interests of the party to the litigation. They would properly be classified as alleged criminal contempts whether or not the breaches were shown to be contumacious. (If it had been established that Mr Marsden had knowledge of the orders, there would have been a powerful case for saying that the breaches were contumacious.) Whether the breaches were contumacious or not, the proceedings would be properly characterised as punitive rather than remedial or coercive.

Amalgamated Television Services Pty Ltd v Marsden and Athens v Randwick City Council can be reconciled on this ground that in the former, criminal contempt was alleged, and in the latter, civil contempt was alleged.

Mr Stack also referred to Matthews v ASIC [2009] NSWCA 155 where Tobias JA, with whom Basten and Campbell JJA agreed, said at ([38]-[39]):

" [38] As is pointed out in Arlidge, Eadie & Smith on Contempt, 3rd Ed (2005) Sweet & Maxwell at para 3-74, with regard to civil contempt, given that the liberty of the subject is at stake, although the courts have in certain respects insisted upon the greater safeguards normally associated with the criminal trial process, such as in relation to the standard of proof required to establish a charge of contempt, they have also been careful to resist the full assimilation of civil contempt into the framework of criminal safeguards: Arlidge op cit at 3-75. Thus, in Witham v Holloway at 534, their Honours (in their joint judgment), whilst reiterating that all charges of contempt must be proved beyond reasonable doubt, also observed:

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.

[39] A similar view was expressed by Wall J in Re B (A Minor) (Contempt of Court: Affidavit Evidence) [1996] 1 WLR 627 where, at 639A, his Lordship observed:

'I respectfully agree ... that the analogy with criminal proceedings can be taken too far and that in civil proceedings for contempt the Court will introduce those safeguards which are necessary for the protection of the alleged contemnors but will not import criminal procedure wholesale or indiscriminately.'"

Mr Stack submitted that this showed that the Court of Appeal treated the charges of contempt as being made in civil proceedings. The issue to which these observations went was whether for the charges to be established it was necessary that particulars of the charge be made out in their entirety, or whether only those elements of the charges necessary to establish breach of the relevant orders needed to be established (at [67]). There was no issue before the court whether the proceedings were " civil proceedings " or " criminal proceedings " within the meaning of the Civil Procedure Act . The same is true of the other authorities relied on by Mr Stack ( Energiser Australia Pty Ltd v Remington Products Australia Pty Ltd (No 4) [2008] FCA 864 at [13]-[14]; Australian Securities & Investments Commission v Reid [2006] FCA 699 at [18],[21]; Australian Securities & Investments Commission v Matthews [2000] NSWSC 201 at [13]).

For these reasons I conclude that whether r 29.10 of the Uniform Civil Procedure Rules applies depends on whether Mr Sigalla is charged with civil contempt or whether the charges include alleged criminal contempts.

Charges include alleged criminal contempts

Whilst in Witham v Holloway the High Court found that the differences that led to the distinctions between civil and criminal contempt were illusory, that distinction remains. It is recognised in the Supreme Court Act: sub-ss 101(5) and (6) confer different rights of appeal in cases of civil and criminal contempt, and s 101A confers power on the Attorney General to submit questions of law to the Court of Appeal in cases of criminal contempt only. In my view the distinction is also required by the definitions of " civil proceeding " and " criminal proceeding " in the Civil Procedure Act and the Evidence Act .

Disobedience to the court's order, or failure to comply with an undertaking to the court, is a civil contempt, unless the disobedience is contumacious (that is, demonstrates a deliberate defiance of the court's authority) or if the purpose of the proceeding seeking to punish the contemnor for the breach is punitive and not remedial or coercive ( Jendell Australia Pty Ltd v Kesby at 132-133; Witham v Holloway at 530; Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 136; Street v Hearne [2007] NSWCA 113; (2007) 70 NSWLR 231 at 243-244, [59]; Hearne v Street at [132]-[141], [168]-[172]; Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92 at [58]).

However the question is not whether Moon Corporation was beneficially entitled to the moneys it received, but whether ASIC has proved beyond reasonable doubt that it was not so entit led. That onus has not been discharged. Accordingly, the first charge should be dismissed.

Charge in para 31 of the Further Amended Interlocutory Process: transfer of $52,500 to Mr Sigalla's New York bank account

ASIC brings the following charge:

" Mr Sigalla is guilty of contempt of this Court in that, in breach of Order 2 of the Orders made by the Honourable Justice Barrett on 3 September 2009, Mr Sigalla on 9 September 2009, caused the sum of $52,500 to be paid from his bank account with St George Bank, Australia, account number [xxxxxxxxx] , to his bank account with JPMorgan Chase Bank, in the United States of America, account number [yyyyyyyyy] , for the sole purpose of paying $52,500 ('the Fees') to the Convent of the Sacred Heart, New York, for his children's school education in circumstances where the Fees had been paid before 9 September 2009. "

As I observed in my judgment concerning the admissibility of evidence ( ASIC v Sigalla (No. 2) at [8]), the allegation is not intended to be that Mr Sigalla transferred $52,500 from his account with St. George to his account with JPMorgan Chase Bank in the United States for the purpose of paying his children's school fees, but rather that this was the stated, but not the true, purpose of the transfer. This was always clear. Properly, counsel for Mr Sigalla did not contend that the purpose of the payment as charged by ASIC was within the permitted exception of paying ordinary living and operating expenses.

The question is whether the payment of $52,500 from Mr Sigalla's account with the St George Bank to his account with JPMorgan Chase Bank was a contravention of the orders of 3 September 2009. The question is not whether the payment was made for the stated purpose of paying school fees. Rather, it is whether the payment was for ordinary living and operating expenses. The onus lies on Mr Sigalla of establishing that the payment was within the permitted exception. That onus can be discharged on the balance of probabilities (see ASIC v Sigalla (No. 3) at [46]-[48]).

There is no dispute that the payment was made. The circumstances were as follows. On 8 September 2009 Mr Ward on behalf of Mr Sigalla approached Barrett J to request that the matter be re-listed in order to vary the existing freezing order. The parties were referred to the Duty Judge. Mr Ward provided ASIC with a draft interlocutory process which, amongst other things, sought to particularise various payments totalling $193,930 which would be classified as reasonable ordinary living and operating expenses. This included a once-off item of $52,500, said to be the equivalent of US$42,000, for school fees. Mr Sigalla swore an affidavit on 8 September 2009, parts of which were tendered by ASIC. He exhibited a bundle of documents including a document that he said had been provided to officers of ASIC on 3 September 2009. He deposed that that document accurately set out his current living expenses. He also deposed that his children were due to recommence school on 8 September 2009 in New York and that it was necessary for him to pay school fees, set out at pages 46-47 of the exhibit, immediately, so as to allow them to attend school. The schedule of expenses included the item for school fees of $52,500. Pages 46-47 of the exhibit included facsimile copies of invoices for US$20,866.79 and US$20,966.79 for each of his daughters. A note on the invoices stated that those amounts were due by 10 June 2009.

As a result of negotiations on 8 September 2009 ASIC consented to payments totalling $177,000 being made from Mr Sigalla's St George account. These included expenses totalling $52,500 for school fees. ASIC asked for receipts for the payments which were received on 28 September 2009 showing transfers of two sums from the St George Bank account to his bank account with JPMorgan Chase Bank of $22,500 and $30,000 on 9 September 2009. The telegraphic transfers both stated that the payments were for school fees.

The statements of Mr Sigalla's JPMorgan Chase Bank account show that the moneys were not used for that purpose. One statement for Mr Sigalla's account with JPMorgan Chase Bank was for the period from 21 August to 21 September 2009. As at 21 August 2009 the account was in credit in the sum of US$33,373.71. Cheques were drawn up to 26 August 2009 totalling US$32,633.58. These would have reduced the credit balance to US$740.13. The payments included a payment of US$31,833.58 by Mr Sigalla for his children's school fees. That cheque was drawn by Mr Sigalla on 13 August 2009 and paid on 26 August 2009. On 2 September 2009 there was a transfer of US$700 to a credit card in the name of Mr Sigalla with JPMorgan Chase Bank for which Mrs Sigalla held a second card. This payment would have reduced the credit balance of the account to approximately US$40.

Mr Sigalla's father-in-law, Mr Terence Caplice, had paid $52,500 to Mr Sigalla's company, ZMF Investments Pty Ltd, on 20 August 2009. Mr Caplice described this as a payment for school fees.

The payment of US$31,833.58 on 26 August 2009 did not discharge Mr and Mrs Sigalla's liability for school fees. There still remained substantial moneys owing. The school fees were US$33,985 per annum for each child. Sixty per cent of this sum, or a total of US$40,782 was payable on 1 June 2009 and the balance was payable by 1 December 2009. Because Mr Sigalla's employment in the United States ceased, the children were withdrawn from the school in the United States at the end of 2009. There were consequential financial adjustments involving an insurance plan to which it is unnecessary to refer. It is not necessary to make any finding as to whether Mr Sigalla genuinely believed that the whole of the sum of A$52,500 was to be used either to pay further school fees that were then or would become owing, or to reimburse his father-in-law for moneys which his father-in-law had provided. The moneys transferred on 9 September 2009 were not used to reimburse Mr Caplice. They were spent on ordinary living expenses for Mr Sigalla's dependants.

The payments credited to Mr Sigalla's account with JPMorgan Chase Bank on 9 September 2009 totalled US$44,537.91. Between 10 September and 21 September 2009 Mrs Sigalla made four ATM withdrawals from the account each totalling US$500. She deposed that while she did not specifically recall those withdrawals, she did recall making cash withdrawals from time to time. She said that she used the money for every day expenses such as medicines, subway fares, cabs, food, and for expenses of her daughters. I accept that evidence.

On 10 September 2009 US$10,000 was transferred from the account to Mr Sigalla's credit card with JPMorgan Chase Bank. The account was then in debit. Mrs Sigalla deposed that the payments made from the credit card account were for ordinary living expenses which she itemised. I accept her evidence. It is unnecessary to go through the individual payments made through the credit card. The payments were for the living expenses of Mrs Sigalla and Mr and Mrs Sigalla's daughters.

As at 21 September 2009 the bank account with JPMorgan Chase Bank was in credit in the sum of US$32,548.04. In the following month that credit balance was reduced to US$181.09. US$2,892.92 was withdrawn by Mrs Sigalla in New York through ATM withdrawals. I accept her evidence that those withdrawals were all for the purposes of payment of ordinary living expenses. Cheques totalling US$24,149.06 were also drawn. These included a cheque paid on 24 September 2009 for US$23,000. This was for payment in advance of rent on Mr and Mrs Sigalla's apartment in New York. The rent for that apartment was US$23,000 per month. Mrs Sigalla drew four other cheques totalling US$1,149.06 which were all applied for ordinary living expenses of herself and her daughters in New York. In addition there were two transfers of US$4,000 on 25 September 2009 and US$1,500 on 13 October 2009 to Mr Sigalla's JPMorgan credit card. The credit card was used for ordinary living expenses. By the end of October 2009 the only funds left in the JPMorgan Chase Bank account totalled US$181. There were no further withdrawals.

Although the $52,500 transferred by Mr Sigalla from his St George account to his JPMorgan Chase Bank account was not used for the purpose of paying school fees, the moneys were used for the purpose of paying ordinary living expenses of his wife and daughters, and, to a small extent, expenses for which he and his wife were both responsible. Some of the payments sourced through the payment of A$52,500 were for expenses, which Mr Sigalla had proposed be paid directly from his St George Bank account. ASIC had given its consent to the payment of A$124,500 from the St George Bank account for living expenses which included an allowance for those amounts.

Mr Stack submitted that Mr Sigalla could not justify the payment of A$52,500 on 9 September 2009 on the basis that the moneys were used to pay living expenses after 16 September 2009 because on 16 September 2009 the freezing orders were reformulated. From 16 September 2009 the freezing orders provided that Mr Sigalla could pay an amount up to $500,000 in the aggregate for reasonable ordinary living expenses, legal expenses and business expenses properly incurred, and to discharge obligations properly incurred under a contract before the freezing order was made, from moneys standing to the credit of the St George Bank account. There was no general exception to the freezing orders allowing payment of reasonable ordinary living expenses from any other account.

However, Mr Sigalla is not charged with having made payments after 16 September 2009 in breach of the freezing orders. The only question is whether the two payments totalling $52,500 made on 9 September 2009 are within the proviso that the restraining order did not prevent the defendants from paying their reasonable ordinary living and operating expenses. The defendants were, relevantly, Mr Sigalla and BZI Pty Ltd ("BZI"). ASIC did not submit that a payment of living expenses for Mr Sigalla's wife or daughters was outside the scope of the proviso. It was correct not to do so. Plainly, the proviso encompassed not only Mr Sigalla's personal living expenses, but those of his dependants. I can infer from the fact that the moneys transferred to the JPMorgan Chase Bank account were used to pay the living expenses of Mr Sigalla's dependants, that that was the purpose of the payments. I am satisfied that the payments totalling $52,500 on 9 September 2009 were within the proviso. This fact is not negated because Mr Sigalla stated that the purpose of the payment was to pay school fees, whereas I would infer that that was not its purpose. The true purpose was still within the proviso.

For these reasons the claim in para 31 of the further amended interlocutory process should be dismissed.

Charges the subject of paras 33-41 of the Further Amended Interlocutory Process

I described the charges the subject of paras 33-40 of the further amended interlocutory process in my reasons in ASIC v Sigalla (No. 3) . I there found that there was a case to answer in respect of those charges. In final submissions, counsel for Mr Sigalla stated that Mr Sigalla accepted that those charges had been proved (T507-508). In final submissions counsel for Mr Sigalla also stated that Mr Sigalla accepted that the charge the subject of para 41 of the further amended interlocutory process had been proved (T559). That charge was that Mr Sigalla was guilty of contempt of court in that in breach of order 5(a) of orders made by Austin J on 30 November 2009 he failed to disclose in his affidavit sworn 4 December 2009 the Sigalla JPMorgan credit card.

Charge the subject of para 42 of the Further Amended Interlocutory Process

The charge the subject of para 42 of the further amended interlocutory process is that Mr Sigalla is guilty of contempt of court in that he is in breach of order 5(c) of the orders made by Austin J on 30 November 2009 by failing to disclose in his affidavit sworn 4 December 2009 that the fourth defendant, BZI, had an interest in securities in Biosceptre Limited.

On 30 November 2009 Austin J made the following orders:

" 5 Orders that by 4pm on Friday 4 December 2009, the Sigalla Defendants are to file and serve on ASIC, an affidavit setting out:

...

(c) an itemised inventory of the relevant Defendants' assets and liabilities;

... "

The " Sigalla Defendants " was defined to mean the " First and Fourth Defendants ", that is, Mr Sigalla and BZI Pty Limited.

Mr Sigalla swore an affidavit on 4 December 2009 in purported compliance with the obligations of himself and BZI under the orders of 30 November 2009. Counsel for Mr Sigalla did not submit that only BZI could be liable for contempt for breach of the order binding it.

In his affidavit of 4 December 2009 Mr Sigalla described the assets and liabilities of BZI. He said:

" 3. I refer to order 5 in the orders made in these proceedings on 30 November 2009. Pursuant to order 5(a) I set out the name of any bank, building society or other financial institutions at which there is an account in the name of or under the control of BZI Pty Limited ('BZI') ...

...

(k) BZI has had no bank account since the closure of its NAB account in August 2009.

...

3 .[sic] BZI is owed a sum of money by ZMS. As at the date of swearing this affidavit I am unable to ascertain the precise amount of this indebtedness.

4. As at the date of swearing this affidavit the financial accounts for BZI and ZMS respectively have not been prepared for the period ending 30 June 2008 and 30 June 2009 respectively. In the absence of these accounts being prepared, I am unable to precisely identify the extent of this indebtedness. My prior accountants, William Buck, hold all of my documents and those of BZI and ZMS. I am in dispute with that firm as a consequence of the winding-up proceedings in relation to ZMS and the ATO. They have not provided documents to me as at the date of this affidavit. I will need to retain new accountants.

...

11. The only asset that BZI has is the loan to ZMS which is indeterminate.

...

13. BZI has no property which is secured over any debt. "

On 22 January 2010 an officer of ASIC telephoned the finance manager of Biosceptre International Limited, Mr Lowe, inquiring whether BZI held shares in that company. Mr Lowe's initial response was to say " I think BZI has sold all their shares, but I can find out for you. " In due course Mr Lowe produced the share register of Biosceptre International Limited. It shows that as at 28 January 2010 BZI held 15,000 shares pursuant to certificate 175. The share register did not disclose when the shares were acquired. There was no evidence to show when the shares were acquired.

On 15 December 2009 Mr Chambers of ASIC wrote to Mr Ward in relation to Mr Sigalla's affidavit of 4 December 2009. Amongst other things, he said:

" 2. In November 2008 when seeking a loan from BankWest, which loan was ultimately approved in 2009, Mr Sigalla claimed as an asset 620,000 shares in Biosceptre International Limited valued at $2,480,000. Does Mr Sigalla retain such assets? If so, does Mr Sigalla possess documentary material evidencing such interest? If Mr Sigalla has disposed of such asset, can he please explain when and how such asset was disposed including details of the proceeds. "

Mr Ward replied on the following day as follows:

" Mr Sigalla, ZMS Investments or BZI Pty Limited do not own any shares in this company. I note that this company is a public company and assume that all records of shareholding are available to ASIC to discern. "

On 5 February 2010 Mr Ward wrote further to ASIC on this matter. He said:

" During the course of preparation of his evidence in these proceedings and in particular as a result of the receipt of documents from William Buck, his accountants, Mr Sigalla has identified that BZI Pty Limited owns 15,000 shares in an unlisted public company called Biosceptre Limited. We are instructed that the shares have no market or commercial value. In due course should it be necessary for Mr Sigalla to provide any further affidavit evidence as to his assets and liabilities he will include these shares in such affidavit. "

Although there is no evidence as to when BZI acquired the 15,000 shares it still held in Biosceptre International Limited, it can be inferred beyond reasonable doubt that the shares were not acquired after 4 December 2009. Counsel for Mr Sigalla did not submit that the charge should be dismissed because ASIC had not proved that BZI held the shares at the date Mr Sigalla swore his affidavit. Rather, counsel submitted that ASIC had not proved beyond reasonable doubt that when he swore his affidavit Mr Sigalla knew that BZI held those shares and therefore had not established that the omission to refer to the shares was anything other than casual, accidental or inadvertent. I agree with that submission.

ASIC called no evidence to rebut Mr Sigalla's sworn assertion that he did not have access to the relevant records when he swore his affidavit of 4 December 2009. If Mr Chambers accurately recorded the statement in the loan application to which he referred, and if the statement in that loan application were correct, (and there was no contrary evidence in respect of either proposition), BZI sold in excess of 97.5 per cent of its shareholding in Biosceptre International Limited after November 2008. It substantially divested itself of its shareholding. There is no evidence to contradict the assertion in Mr Ward's letter of 5 February 2010 that the shares had no commercial value. It appears from the face of Mr Sigalla's affidavit of 4 December 2009 that he was making a genuine effort to comply with the orders of 30 November 2009 in relation to the disclosure of the assets of BZI. No motive is suggested as to why Mr Sigalla would omit the reference to the shares in Biosceptre International Limited. I infer that without records he was then unaware that BZI still held such shares. That is consistent with the first letter written by Mr Ward when the matter was raised by ASIC. After further inquiries and after apparently having obtained access to documents, Mr Sigalla, through his solicitor, corrected the matter. I infer that the breach of the order was inadvertent. ASIC has not established the contrary. In Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737, Campbell JA held (at [64] 749):

" ... proof that a contempt has been committed by breaching a court order involves proving enough to conclude that the action or inaction said to constitute the breach was deliberate, and not casual, accidental or unintentional. "

In so concluding, his Honour applied Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd at 111-112.

That has not been established in the present case.

Conclusion and orders

For these reasons I order that the claims in paras 1, 31 and 42 of the further amended interlocutory process be dismissed.

I find that the first defendant, Mr Andrew Sigalla, is guilty of contempt of court in respect of each of the charges the subject of paras 33-41 of the further amended interlocutory process.

These findings dispose of all of the substantive claims (save as to punishment and costs) in the further amended interlocutory process.

I will stand the proceedings over to a convenient time to hear any evidence and to hear submissions on the questions of punishment and costs.

Decision last updated: 23 February 2011

Medium Neutral Citation:	ASIC v Sigalla (No. 4) [2011] NSWSC 62
Hearing dates:	14-17 September 2010
Decision date:	18 February 2011
Before:	White J
Decision:	Refer to paras [194] - [197] of judgment.
Catchwords:	CONTEMPT - whether application to punish for contempt for disobedience of court's orders were civil proceedings to which the Civil Procedure Act 2005 and Uniform Civil Procedure Rules apply - whether application is a proceeding for an offence and therefore a criminal proceeding and not a civil proceeding - whether proceedings were civil or criminal proceedings for purposes of the Evidence Act 1995 - held character of principal proceeding in which alleged contempt committed does not determine character of contempt proceeding - held proceedings for criminal contempt are proceedings for an offence but proceedings for civil contempt are not - distinction between civil and criminal contempt - held proceeding included charges of criminal contempt - held Uniform Civil Procedure Rules r 29.10 did not apply where no case to answer submission made CONTEMPT - evidence - standard of proof - Witham v Holloway (1995) 183 CLR 525 displaced by Evidence Act - proof required beyond reasonable doubt because proceedings are criminal proceedings within definition in Evidence Act - principles in Jones v Dunkel (1959) 101 CLR 298 inapplicable CONTEMPT - orders restrained defendants from dealing with 'their assets' - whether orders restrained dealing with moneys not beneficially owned by the defendant - trust asset is property of trustee - beneficial interest not carved out of trust property leaving the trustee with a 'bare legal title' - 'their assets' includes assets held as trustee - Federal Bank of the Middle East v Hadkinson [2000] 1 WLR 1695; [2000] 2 All ER 395 disapproved CONTEMPT - ambiguity - orders restraining dealing with 'their assets' ambiguous - defendant not liable for contempt if breach not established on a reasonable view of what the orders prohibit - not proved beyond reasonable doubt that defendant beneficially entitled to moneys transferred - orders breached but contempt not established CONTEMPT - proof of breach of court orders in relation to swearing affidavit of assets - genuine effort to comply - not proved beyond reasonable doubt that breach deliberate
Legislation Cited:	Civil Procedure Act 2005 Supreme Court Act 1970 Evidence Act 1995 Interpretation Act 1987 Corporations Act 2001 (Cth) Supreme Court Act 1958 (Vic) Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Land and Environment Court Act 1979 Family Law Act 1975 (Cth)
Cases Cited:	ASIC v Sigalla (No 3) [2010] NSWSC 1076 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Owners of Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612 Blake v Norris (1990) 20 NSWLR 300 Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371 La Trobe University v Robinson and Pola [1973] VR 682 Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32 Aztec Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2008] NSWSC 908 Wellesley v Duke of Beaufort (1831) 2 Rus & My 639; (1831) 39 ER 538 Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 Re Colina; ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 Pooley v Whetham (1880) 15 Ch D 435 Scott v Scott [1913] AC 417 John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 Ahnee v Director of Public Prosecutions [1999] 2 AC 294 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Attorney General (NSW) v Whiley (1993) 31 NSWLR 314 Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527 Ryan v Wright (No 2) [2004] NSWSC 1019 Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259; (2004) 52 ACSR 115 Circuit Finance Australia Limited v Sobbi [2010] NSWSC 912 Director of Public Prosecutions (Commonwealth) v Sexton [2008] NSWSC 352 Garnett v Bradley (1878) 3 App Cas 944 Queensland Fish Board v Bunney [1979] Qd R 301 Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127 Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15 Athens v Randwick City Council [2005] NSWCA 317 Nuclear Utility Technology & Environmental Corporation Inc v Australian Broadcasting Corporation [2009] NSWSC 78 Matthews v ASIC [2009] NSWCA 155 Energiser Australia Pty Ltd v Remington Products Australia Pty Ltd (No 4) [2008] FCA 864 Australian Securities & Investments Commission v Reid [2006] FCA 699 Australian Securities & Investments Commission v Matthews [2000] NSWSC 201 Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 Street v Hearne [2007] NSWCA 113; (2007) 70 NSWLR 231 Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92 Doyle v Commonwealth [1985] HCA 46; (1985) 156 CLR 510 ASIC v Sigalla (No 2) [2010] NSWSC 792 In the Marriage of J A and D M Lindsey [1995] FamCA 117; (1995) 19 Fam LR 649 In the marriage of Tate [2002] FamCA 356; (2002) 169 FLR 190; (2002) 29 Fam LR 195 Comptroller of Stamps (Vic) v Howard-Smith [1936] HCA 12; (1936) 54 CLR 614 Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4; (1998) 192 CLR 226 CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53; (2005) 224 CLR 98 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510 Re Transphere Pty Ltd (1986) 5 NSWLR 309 Commissioner of Taxation v Linter Textiles Ltd (in liq) [2005] HCA 20; (2005) 220 CLR 592 Federal Bank of the Middle East Ltd v Hadkinson [2000] 1 WLR 1695; [2000] 2 All ER 395 R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 Black & Black v S Freedman & Co [1910] HCA 58; (1910) 12 CLR 105 Wyszynski v Bill [2005] NSWSC 110 Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 Adler v ASIC [2003] NSWCA 131; (2003) 46 ASCR 504 RPS v R [2000] HCA 3; (2000) 199 CLR 620 Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737
Texts Cited:	William Hawkins, The Pleas of the Crown, 8th ed (1824) Ch 6 Cross on Evidence, LexisNexis looseleaf edition
Category:	Separate question
Parties:	Australian Securities and Investments Commission - Plaintiff Andrew Sigalla - Defendant
Representation:	Counsel: D R Stack (Plaintiff) S Robb QC with C Botsman (Defendant) Solicitors: Conrad Gray Solicitor (Plaintiff) n/a (Defendant)
File Number(s):	2009/290316