Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Novelly v Tamqia Pty Ltd [2024] NSWCA 167 Hearing dates: 21 May 2024 Date of orders: 12 July 2024 Decision date: 12 July 2024 Before: Meagher JA at [1]
Gleeson JA at [2]
Kirk JA at [66]Decision: (1) Appeal allowed.
(2) Set aside orders (1) and (2) made by the primary judge on 8 September 2023, including the variation to order (2) made on 18 October 2023.
(3) Remit the contempt proceedings to the primary judge to be determined in accordance with law.
(4) The respondents to pay the appellant’s costs in this Court.
(5) The costs of the hearing below be determined by the primary judge on the remitter when determining the issue of penalty.
Catchwords: APPEALS – competency of appeal – where dismissal of contempt proceedings – whether proceedings for civil or criminal contempt – where criminal contempt not established – where finding of civil contempt but proceedings dismissed – whether appeal incompetent – characterisation of contempt proceedings – whether remedial or coercive, not punitive – time at which character of proceedings assessed
CONTEMPT – breach of undertakings given to Court – whether civil or criminal contempt – whether error in characterising proceedings as criminal only – where statements of charge particularised breaches of undertakings as contumacious – whether allegation of contumacy determinative – where double aspect of contempt proceedings – whether procedurally unfair to find civil contempt
Legislation Cited: Administration of Justice Act 1960 (UK), s 13
Courts Legislation Amendment Act 1996 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW), s 107
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Australasian Meat Industry Employees Union v Mudginberri (1986) 161 CLR 98; [1986] HCA 46
Australian Building Construction Employees’ & Builders Labourers’ Federation v David Syme & Co (1982) 40 ALR 518
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21
Bellerive Homes Pty Ltd v FW Projects Pty Ltd (2019) 106 NSWLR 479; [2019] NSWSC 193
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21
Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Limited (2014) 47 VR 527; [2014] VSCA 261
Davern v Messel (1984) 155 CLR 21; [1984] HCA 34
Director of Public Prosecutions v Chidiac (1991) 25 NSWLR 372
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Hinch v Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56
Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127
The Law Society of New South Wales v Kinsella (Court of Appeal, 2 July 1980, unreported)
Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117
Novelly v Tamqia Pty Ltd [2022] NSWSC 1607
Novelly v Tamqia Pty Ltd (No…
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- AGLC
- Novelly v Tamqia Pty Ltd [2024] NSWCA 167
- Case
- [2024] NSWCA 167
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the contempt proceedings, as initiated and conducted, constituted civil or criminal contempt, or a combination of both. Specifically, the court had to consider whether the primary judge erred in characterising the proceedings as solely criminal, and whether the allegations of contumacy in the statements of charge were determinative of the proceedings' character. Further, the court examined whether the proceedings had a "double aspect" and if it was procedurally unfair to find civil contempt after the proceedings had been framed and treated as criminal.
The Court of Appeal reasoned that the proceedings, by alleging breaches of undertakings given to the court, possessed characteristics of both civil and criminal contempt. While the primary judge had found a breach of civil contempt, the dismissal of the proceedings on the basis that criminal contempt was not established meant that the appeal was competent. The court held that the characterisation of contempt proceedings should be assessed at the time of the proceedings, and that the allegations of contumacy did not solely dictate the nature of the proceedings. The court found that the primary judge's approach had been procedurally unfair.
Consequently, the Court of Appeal allowed the appeal, set aside the orders made by the primary judge, and remitted the contempt proceedings back to the primary judge for determination in accordance with law. The respondents were ordered to pay the appellant's costs in the Court of Appeal, with the costs of the hearing below to be determined by the primary judge upon the remitter.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside orders (1) and (2) made by the primary judge on 8 September 2023, including the variation to order (2) made on 18 October 2023.
(3) Remit the contempt proceedings to the primary judge to be determined in accordance with law.
(4) The respondents to pay the appellant’s costs in this Court.
(5) The costs of the hearing below be determined by the primary judge on the remitter when determining the issue of penalty.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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