Witham v Holloway

[1993] HCATrans 102

.. G .

• .

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl46 of 1992

B e t w e e n -

JOHN ALLAN WITHAM

Applicant

and

JOHN WILLIAM HOLLOWAY

Respondent

Application for special leave

to appeal

DEANE J

TOOHEY J

GAUDRON J

Witham 1 30/4/93

TRANSCRIPT OF PROCEEDINGS (

AT SYDNEY ON FRIDAY, 30 APRIL 1993, AT 2.24 PM

Copyright in the High Court of Australia

MR P. KINTOMINAS:  May it please Your Honours, I appear for

the applicant. (instructed by Watsons)

MR N.F. FRANCEY: I appear for the respondent. (instructed

by the Crown Solicitor for New South Wales.

DEANE J: Yes, Mr Kintominas.

MR KINTOMINAS:  Your Honours, I hand up an outline of

argument in triplicate. The factual background to

the matter is fairly brief.	The respondent, who is
Wales, brought a class action under the Fair	the Commissioner for Consumer Affairs in New South applicant had dealt with and brought actions to ultimately recover money from the applicant.

During the course of those proceedings, the

respondent sought to be secured against the

applicant's assets in the event that there was a

victory by the respondent in the action, as

plaintiff. The court requested or directed the

applicant to firstly swear an affidavit concerning his affairs and, secondly, accepted an undertaking from him that he would not allow his assets to fall

below $200,000.	By the time the proceedings
were -

TOOHEY J: When you say "accepted an undertaking from him",

is that strictly right or did it not culminate in

an order made by Mr Justice Powell prohibiting the

disposition of assets?

MR KINTOMINAS:  That is the more correct way of putting it,

Your Honour.

TOOHEY J:  Two orders, in effect; one restraining the

disposition of property and the other requiring him

to file and swear and affidavit as to his assets.

MR KINTOMINAS:

that there was an order that he not deal with his Yes, Your Honour. I was in error. It is

assets in such a way as that they fall below

$200,000. It transpired before the end of the proceedings which the plaintiff ultimately won

that the applicant was insolvent and the

respondent bought against him proceedings for

contempt which were proved to the satisfaction of

His Honour Mr Justice Hodgson of the Equity

Division of the New South Wales Supreme Court who heard the matter.

The problem arises, Your Honour, as follows:

Mr Justice Hodgson directed himself as to what was

the appropriate standard of proof to apply in this

sort of matter. I take Your Honours to page 83 of

Witham 2 30/4/93

the application book and there is a paragraph

headed 3 and it reads:

Despite an assertion in Richie's Supreme Court

Practice, par.55.13.3, that proof beyond

reasonable doubt is required, it seems clear

that in New South Wales the law is that, in a

case of wholly civil contempt, the civil
standard of p~oof applies, but with the
required degree of satisfaction perhaps

varying according to the gravity of the facts

to be proved: see Jendell Australia Pty.

Limited v Kesby (1983) 1 NSWLR 127, N.S.W. Egg

Corporation v Peek (1987) 10 NSWLR 72 at 81-

83.

The decision of the N.S.W. Egg Corporation v

Peek was a decision binding on His Honour, being a

decision of the Court of Appeal of New South Wales

and is authority for the proposition, in New South

Wales at least, that the onus of proof on the civil

standard, perhaps fortified according to the

gravity of the situation, as this Court indicated

in the case of Briginshaw v Briginshaw, is the
appropriate standard to apply.

An appeal was brought to the Court of Appeal. I appeared before the Court of Appeal and I sought

leave to argue that the N.S.W. Egg Corporation v

Peek was wrongly decided and that leave was

refused. I should add the applicant was sentenced

to one month's imprisonment, but orders concerning

his imprisonment have been stayed all along the

line and are still stayed, to permit him this final

chance of an appeal if it comes to pass.

Your Honours, as you would see from my outline

of argument there is, in my submission, two lines of authority: one is a line of authority which by

and large agrees with Peek, and they are set

forward in paragraph 3 of my outline of argument.

The oldest case there is Sunibrite Products v

Jabuna. That was a decision of the then Chief

Justice of the Federal Court sitting alone,

Sir Nigel Bowen. Jendell v Kesby was a decision of

Mr Justice McLelland - - -

DEANE J:  I do not think you need go through those, need

you? Why do you not take us to the best of the cases that you say support you.

MR KINTOMINAS:  Yes, Your Honour. The cases which support

the proposition are listed in paragraph 4 which

are on the second page of my outline of argument.

One begins with Re Bramblevale - - -

Witham 3 30/4/93

DEANE J: Cannot you take us to the best of them? I mean,

we do not want to go through all of those cases on

a leave application.

MR KINTOMINAS:	Your Honours, I do not propose to go through each of them. Bramblevale, (1970) Ch 128, appears
first, but it is a decision of the English Court
of Appeal and in that case that was clearly, in my
submission, a matter where it was a civil contempt
of court. Assuming that there is some real
meaning in the distinction, Your Honour - and it
is a matter that I wish to come to later - there was a destruction of company's books, a company
which was in liquidation, and there was an
application by the liquidator for committal for
contempt.  The Master of the Rolls indicated,
towards the top of page 137:

A contempt of court is an offence of a

criminal character. A man may be sent to

prison for it. It must be satisfactorily

proved. To use the time-honoured phrase, it

must be proved beyond reasonable doubt.

Your Honours, Brambelvale is an important case because it is the case that has been most cited by

the Australian courts whenever they have put

forward a proposition contrary to that in Peek.

TOOHEY J: Mr Kintominas, among the authorities that appear

on page 2 of your outline, that is authorities

starting with Bramblevale, some appear to have been

decided after Peek. Are there some in which a

court has acknowledged Peek but refused to follow

it?

MR KINTOMINAS: 

Your Honour, there is one unreported

decision - actually the decision I am thinking of
is a decision of Mr Justice Brooking in the
Victorian Supreme Court. In my list of

authorities I had that as an unreported decision.

I have since found out it is actually now reported

in (1990) 71 Local Government Reports of

Australia. That is the decision of Historic

Buildings v Brenchley, which was No 14 on my

original list.

DEANE J: 

We do not seem to have that.

MR KINTOMINAS: 

Your Honours, I did not list it as a case to

quote from, only for this reason.	What His Honour
did in that case was, and I read:

So far as the standard of proof is concerned,

Mr Minnoti has cited to me N.s.w. Egg

Corporation v Peek. I am content to assume in

his client's favour that the standard of proof

Witham 4 30/4/93

is a heavier one than that laid down, namely

beyond reasonable doubt, without expressing

any opinion.

He decided against him anyway.	Your Honours, I am
sorry that I do not have - - -

DEANE J:  It does not seem to take the matter very far, does

it?

MR KINTOMINAS:  No, Your Honour. Your Honour asked me if

anyone had dealt with Peek. That is the only case

that appears to mention Peek.

TOOHEY J: It just seems curious because in that list

starting with Commissioner for Water Resources in

Queensland in 1988 there are five or six cases

which all seem to have been decided after Peek,

although I suppose not necessarily after it was

reported. One might have thought there was some

discussion of these two lines of authority that you

have spoken of.

MR KINTOMINAS:  Your Honour, there is an acknowledgment -

and I think it is in Sun Newspapers v Brisbane

TV - that there are two lines of authority.

Before I just get off the question as to who has

mentioned Peek v The Egg Board, there is also the

unreported decision of Mr Justice Hunt of the New

South Wales Supreme Court. That is an unreported one. Again, in that case, His Honour proceeded on

the basis that both parties agreed that he could

treat it as a beyond reasonable doubt situation

because it was thought that the decision of this

Court in Hodgens v Hodgens, which was an

application for special leave which was refused in

1987, cast doubt on Peek's case. His Honour did

not give any reasons or analysis; he was informed
by the opposing party that they shared a concern

in that regard so he decided the case on "beyond reasonable doubt"; again, which does not further

shed any light on it.

It seems certainly curious, Your Honours, but the position is that the unreported decisions that

I have listed, other than the one of

Mr Justice Brooking that I mentioned, did not refer to Peek's case.

DEANE J: Did they specifically say the onus was the

criminal onus or, like Mr Justice Brooking, did
they simply say they were prepared to assume it was

the criminal onus?

MR KINTOMINAS:  No, Your Honour, in some of them at least

they specifically said.

Witham 5 30/4/93

DEANE J:	What is the best?
MR KINTOMINAS:	It is perhaps hard to say "the best",

Your Honours. These are all single judge

decisions so I cannot say that it is best from the

point of view - - -

DEANE J:  Why do you not take us to one that is very good,

if you cannot get a best.

MR KINTOMINAS:  Your Honours, if I could take you to the Sun

Newspapers v Brisbane TV, 92 ALR 535. In that

case Mr Justice Pincus of the Federal Court, at

page 541, refers to two decisions of this Court,

actually three, R v Metal Trades Employers'

Association, (1951) 82 CLR 208, which is not a case that I have listed because it was not a case

which I thought took the matter further; he refers

to the Australasian Meat Industry Employees' Union

v Mudginberri Station, (1986) 161 CLR 98 at 108

and 109, a case that is on the list, where the

Chief Justice at the time, Sir Harry Gibbs,

Mr Justice Mason as he then was, Mr Justice Wilson

and yourself, Mr Justice Deane:

referred to the difficulty which had been

experienced in maintaining the distinction

between the two types of contempt and

described as "absurd" the proposition " ... that
the defendant who disobeys an injunction
granted against him commits a civil contempt

whereas the stranger who aids and abets him is

guilty of criminal contempt ... ".

He then goes further and refers to Hinch v
Attorney-General (Vic), (1987) 164 CLR 15. Now
that case, Your Honours, I should have put on my

list and I did not, but I have brought three copies

of the Commonwealth Law Reports.

DEANE J:  What case is that?

MR KINTOMINAS: That is Hinch v Attorney-General (Vic).

DEANE J:	We seem to have it anyway.
MR KINTOMINAS:	I am reading at the moment from

Mr Justice Pincus' judgment, but I intend to take

Your Honours further to that particular judgment

of Hinch.

In Hinch v Attorney-General (Vic) (1987)

164 CLR 15; 74 ALR 353; 75 ALR 502, Deane J,

who was one of the judges responsible for the

passage just cited, criticized the distinction
between civil and criminal contempts and said

it should no longer be accepted in this

Witham 6 30/4/93

country. Referring to the punishments of

imprisonment and fine, his Honour added (CLR

at 49): "Proceedings seeking the imposition of

such punishment upon an alleged contemnor (or
an order for sequestration in the case of a

company) must realistically be seen as

essentially criminal in nature ... "

Mr Justice Pincus went on saying:

In my opinion, the proper course is to

accept the view just expressed and proceed on

the basis that there must be proof beyond
reasonable doubt. The adoption of this view
of the law makes no difference to the result

of the case against Hinch, but is of some

assistance to -

Your Honours, they were the people concerned in the

particular case. If I can further take

Your Honours to that decision in Hinch, I rely very

heavily in this application for special leave on

what Your Honour Mr Justice Deane said in that case

and, in particular, the passage which begins at the

top of page 49, starting with the words:

The classification of contempts of court

as criminal or civil has, in the past,

involved the anomaly that some contempts have

been classed as civil notwithstanding that

they have been or may be visited with the

consequences of imprisonment or fine -

right through, Your Honours, to the following page at the end of the first paragraph on the following

page:

It was that criminal onus which had to be

satisfied in the present case.

Your Honours, I know that is a longish excerpt

but - as Your Honour Mr Justice Deane said in that

case, and I am looking now particularly about_the

middle of page 49, a bit before it, Your Honour was

referring to -

the consequences of contempt, where an order

for costs is inadequate, are either fine or

imprisonment in the case of criminal contempt

but imprisonment alone in the case of civil

contempt.

Of course, Mudginberri has caught up with that

problem. Your Honour then went on to say:

It should no longer be accepted in this

country were, regardless of whether it be

Witham 30/4/93

imposed in proceedings brought by the

Attorney-General or some other official acting

in the public interest or by a private

individual for the indirect or coercive
enforcement of a civil order, imprisonment or
fine as a consequence of a finding of contempt

of court cannot be justified otherwise than as

a punishment for past or continuing breach of

law. Proceedings seeking the imposition of

such punishment upon an alleged contemnor (or

an order for sequestration in the case of a

company) must realistically be seen as

essentially criminal in nature:

Your Honour then made reference to a 19th century

case of In re Maria Annie Davies, which I have

bought with me if it becomes necessary to look at

that. In any event, in that particular case

Your Honour indicated it was plain that those

contempts were criminal in nature. But Your Honour
went on over the page to say that:

Notwithstanding such unusual features however, there can, in my view, be no room for doubting

that the onus of proof which must be satisfied

in criminal proceedings for punishment of an
offence of contempt of court, such as the
proceedings in the present case, is the
ordinary criminal onus of proof beyond

reasonable doubt.

And Your Honour referred not only to R v Fletcher;

Ex parte Kisch and Consolidated Press Ltd v McRae,

but Your Honour also referred to In re Bramblevale
Ltd and another Court of Appeal which followed it
of Comet Products UK Ltd v Hawkex Plastics Ltd.

They were both civil cases.

At the end of the day, one has a situation

where the primary judge in this case did not do

what Mr Justice Brooking did. He not only

acknowledged himself to be bound by Peek's case,

but specifically avoided going that one extra step

and saying, well, and even if that is wrong and the

test was beyond reasonable doubt, I would find him

guilty anyway. He avoided it. The only rational conclusion to be drawn is that if - and it has to

be drawn, I submit, in my client's favour - that if

the test had been beyond reasonable doubt, he would

not have drawn the conclusion and he would not have

found him guilty.

So the position that arises is that a man has been sent to prison. He has been sent to prison

not as a coercive measure but he has been sent to
prison as a punitive measure and a punitive measure

only on a standard of less than beyond reasonable

Witham 30/4/93

doubt. If he had committed murder, the tribunal of

fact would have had to have been satisfied beyond

reasonable doubt. If he had been accused of

littering in George Street, the tribunal of fact

would have had to have been satisfied, before it

punished him, that he had committed the offence

beyond reasonable doubt. He is accused of contempt

of court; a lesser standard is set.

In my submission, Your Honours, without going

into the merits of the appeal, that is a

proposition which one would generally find hard to

accept and it would be a proposition which, in my

submission, would need the ultimate determination

by this Court.

Your Honours, I stress and make that

distinction that this was not a matter where there

was any coercive aspect. This was clearly a

punitive and punitive aspect only.

Jendell v Kesby, which was a decision of

Mr Justice McLelland of the Court of Appeal based its decision on Egg Board v Peek. Although it was

quoted as authority for the proposition of what the

Court of Appeal eventually found, one wonders when

one reads that case more carefully whether it is

really only authority for the proposition that
where the consequence is coercive imprisonment,

then the civil standard of proof fortified by

Briginshaw v Briginshaw is the appropriate

standard, but not where the purpose of the

proceedings, even if they are proceedings for civil

contempt - it may be that even Mr Justice McLelland

recognized in his judgment that if it was only

punitive, the criminal standard should apply. I

draw that conclusion because of His Honour's final

remarks on page 137 where he said that:

In the present proceedings, no case of

criminal contempt has been made out to the

requisite standard of proof and therefore no

punitive sanctions are appropriate.

Your Honours, there were other cases, and there is

also the case in the Queensland Supreme Court,

Mr Justice McPherson - that is the case of

Commissioner for Water Resources v Fed FAA, (1988)

2 QdR 385. In that case His Honour

Mr Justice McPherson referred to Comet Products v
Hawkex Plastics, Bramblevale, Consolidated Press v

McRae, and this was a purely civil matter. He

quoted from Consolidated Press v McRae, (1955)

93 CLR 325 at 333, a decision of this Court, that:

Contempt of court is a criminal offence punishable summarily by the Supreme Court.

Witham 9 30/4/93

Like every other offence the facts by which it

is made out must be proved by admissible

evidence to the satisfaction beyond reasonable

doubt of the tribunal.

In my submission, the two lines of authorities

basically represent a schism. No one has really

taken the Egg Board v Peek decision on and said

that it is wrong. It has mostly not been cited in

the decisions that are against it. On the one or

two occasions that it was cited, they proceeded on

the basis of beyond reasonable doubt and it did not

make a difference anyway.

The division in the authorities is one matter

in itself which justifies special leave. The authorities, Your Honours, are in a mess. It

requires this Court to make a definitive statement.

In cases such as McRae v The Commonwealth and ex

parte Fletcher; re Kisch, also the decision of

Brooking v Keating - - -

DEANE J:  I think you have made the points that you want to

make. We are not hearing the appeal. I do not

think you need trouble about further authority

unless there is something that you particularly

want to rely on.

MR KINTOMINAS:  Your Honours, perhaps if I could just

briefly address Your Honours on the matters that I raise in paragraph 8. It is not merely a question

of the fundamental importance of the question of

onus of proof but the question of onus of proof is

one of a number of matters which causes difficulty

whilst the distinction between civil contempts and

criminal contempts - - -

DEANE J:  The point you make in 8 in the first four lines is

clear enough. The point you seek to make in the

last line, that things we have said have created an

expectation that we will definitively settle the

issue, I do not think is going to get you very far.

MR KINTOMINAS: All that I wanted to say was that it did

appear, in the Mudginberri case, that the Court

was saying, perhaps this is not quite the case to

settle the issue once and for all, but there is

much to be said for the proposition that the

distinction is outdated and it should go.

TOOHEY J: But if you are right about your standard of proof

point you do not need any more, do you?

MR KINTOMINAS:  No, Your Honour.

DEANE J: And if you are obviously wrong about that point,

point 8 is not going to get you anywhere.

Witham	10	30/4/93
MR KINTOMINAS:	Yes, Your Honour, I accept that.	Even if,

at the end of the day - and I appreciate

Your Honours are not asking me to argue Egg Board

v Peek - - -

DEANE J:  We are really telling you not to.

MR KINTOMINAS:  Yes, Your Honour, and I am not. I was

Egg Board v
merely going to say that even in the should grant leave, hear the case, because the

pronouncement will certainly be definitive one way

or another.

DEANE J:  We can do that easily be refusing leave on the

ground that the decision is not attended by

sufficient doubt.

MR KINTOMINAS:  I do not think I want to pursue that any

further, Your Honour.

DEANE J: That argument is self defeating, if I might say

so.

MR KINTOMINAS: If Your Honour pleases.

DEANE J:  Thank you, Mr Kintominas. Mr Francey.

MR FRANCEY:  I was going to invite Your Honours to do

exactly that: that is refuse leave and give the

reasons why it is that Peek's case was correctly

decided. Could I just correct a couple of things

before I proceed to my argument. The first is that

my learned friend suggested to the Court that an

inference could be drawn from the fact that

Justice Hodgson declined to make a finding beyond

reasonable doubt as an insurance measure, if you

like. He did that for a particular reason and that

was because he was persuaded in the course of the

hearing that the correct way to approach an action

the balance of probabilities with the Briginshaw	for contempt in relation to a civil matter is on
test. He was cited Jendell v Kesby and N.S.W. Egg
Corporation v Peek for that proposition, notwithstanding the fact that - - -

DEANE J: But nothing turns on that, does it?

MR FRANCEY: Except for this, that there is some confusion,

that is true. My friend has alerted the Court to

it and in fact it was noted in the practice to the

effect that the standard was beyond reasonable

doubt, but what I propose to outline is the reasons

why it is that that notation, for example, was

incorrect and why some of these other decisions are

incorrect as well. Could I just make one other

point by way of passing -

Witham 30/4/93

DEANE J: It is apparent, is it not, that one cannot say

that if Justice Hodgson had thought that the onus

was the criminal onus the applicant would have been

convicted; the most that one can do is say he may

or may not have been.

MR FRANCEY:  Correct, Your Honour. He was not asked to

decide the question on the beyond reasonable doubt
matter and I can say that because I was there to
ask the question. Could I just make one other
point in relation to my learned friend's references
to the necessity for proof beyond reasonable doubt

before some punitive measure is taken. That is not

a universal proposition. Part IV of the Trade

Practices Act, for example, whilst a statutory provision, does enable substantial fines to be imposed and what applies to the civil standard with

the Briginshaw test. That is the traditional

historical position in relation to civil contempts.

Some confusion has arisen because of the blurring

that has occurred in recent times between the two.

Your Honours, could I hand the Court our

outline of argument which traces some of the

historical developments in order to set the matter

in perspective. I simply outline the traditional

categories, emphasizing the fact that civil

contempts generally involve disobedience to a court

order. Criminal contempts are calculated to

disrupt the operation of the court.

There has been some confusion of late because

of the quasi criminal nature of the proceedings and

cases such as Bramblevale seems to be the

commencement of the confusion. It was applied in a

Court of Appeal decision, Dean v Dean, which my

learned friend has not mentioned, and has been

dealt with in the two texts that I have referred

to. But, Your Honours, what we would say is that a

careful consideration of those authorities, as was

done by Justice McLelland in Jendell, which, in

fact, contrary to my learned friend's submissions,

preceded Peek, and in fact Peek effectively

confirmed Justice McLelland's analysis.

The flaw in the reasoning that has developed from Bramblevale is exposed and what I propose to

do, Your Honours, is to go through the way in which

that appears to have developed. The most

convenient way for me to do it is if I could hand

Your Honours a copy of relevant extracts from what I found to be the best text on the subject, being

Miller, Contempt of Court. The early part of the

work, the first two or three pages, is simply an

introduction to the distinction between criminal

and civil contempt and I have really dealt with

that thus far. The area of concern really arises

Witham 12 30/4/93

on page 27, in Chapter II, dealing with criminal

and civil contempt and the consequences. There is

a lot more detail in the particular chapter but on

page 27 reference is made there to the blurring

that has occurred and the decision in

Bramblevale, over on to the following page in which

the circumstances of that case is outlined.

Thereafter there is reference to the different

approach adopted in some English decisions that are

noted at footnote 18, followed by the decision in

Dean v Dean, which sought to resolve some of the

conflict that was occurring in that country arising

out of some misinterpretation, I would submit, of

what was in fact occurring in Bramblevale.	On the
following page at 29 the learned author

acknowledges the careful consideration given to the

matter by Justice McLelland in Jendell, resulting
in the fact that in Australia certainly the

position is that the appropriate standard is the

civil standard with the Briginshaw test.

If I could take you to the decision in Jendell

and illustrate to you how it is Justice McLelland

approached the question in order to resolve the

conflict that was already emerging at the time he

was required to consider it, and to indicate why it

is that he ultimately decided that in a case of

purely civil contempt, which occurs in this

instance, namely contravention of a court order,

the appropriate standard is the civil standard with

the loading according to the gravity of the

offence.

TOOHEY J:  I must say on a quick reading of those pages,

Mr Francey, the author seems to favour the what you

have described as blurring, but what the author

describes as assimilation of the two types of

contempt and the application of the criminal

standard for both.

MR FRANCEY:  Not entirely, Your Honour, with respect.

Elsewhere the author says, even at the out set on page 2:

Traditionally contempt of court has been

divided into two categories according to

whether the contempt is criminal or civil in

nature. The distinction is time honoured and

of continuing importance, even though the

immediate practical consequences which flow

from it are now less important than formerly.

He goes on to consider the distinction and then, in

Chapter II, considers in some considerable detail the practical effects which are dealt with in the

following segments to which Your Honour refers,

Witham 13 30/4/93

admittedly starting, "In spite of this welcome

tendency to assimilate", to overcome a number of

difficulties he deals with some of them.

Imprisonment, which in the United Kingdom, has been

dealt with in part legislatively. He goes on to

deal with settlement, the extent to which you can

have waiver as between criminal and civil - - -

TOOHEY J:  No, I was just looking, for instance, at page 28,

underneath that quoted passage. The author says:

The application of a stringent standard of

proof to cases of civil contempt is in line

with other decisions and is to be welcomed.	A
person should not be deprived of his liberty
by reference to any less stringent test.

Is that a reference to the criminal standard?

MR FRANCEY: That appears to be what the author is saying,

but what we would submit, Your Honour, is that the

Australian law and the traditional law in relation

to civil contempts has satisfied that by saying

that in the case of a civil contempt, where there

is a very real prospect of a criminal penalty, then
the civil standard is raised to a level that is
virtually equivalent to the criminal standard, but
it is not, in strict conceptual terms, the criminal

standard. And that has historically been the

position. But concern by the courts to introduce

safeguards that are appropriate to Draconian-type

measures that result in substantial penalties have

caused this blurring.

Your Honours, the final segment of that

chapter, after dealing with appeals and other

things, deals with areas of uncertainty and goes on

to examine the extent to which, at page 42,

possible abolition of the distinction. What is

considered there is a series of policy issues as to

whether the distinction should be abolished or not.

simply introduce this aspect, because it does deal	It may be that it is appropriate at this point to
with the matter from a policy viewpoint, and that
is if I could hand to Your Honours the relevant
extracts from the Australian Law Reform Commission report on the subject of contempt on this aspect of
the standard of proof. There, again, some of the
misconceptions that appear to have arisen in the
cases and in the commentaries have crept into the
Law Reform Commission report. It commences at the
bottom of point 580. On the following page there
are references to a number of cases, noting the
disparity that has grown up, and referring amongst
other things to Jendell and then subsequently unreported decisions, one being Law Society of NSW
v Kinsella, that being a case which, I believe, was

Witham 14 30/4/93

in fact examined by Justice McLelland in Jendell.

So that it was taken into account by him in his

careful analysis of the relevant authorities.

The end result of the Law Reform Commission

report was a recommendation in fact that

effectively the criminal standard be applied to

both forms of contempt. There was a draft bill, as

Ms Wentworth was indicating to you earlier. It has

not been acted upon and what I would be submitting

to Your Honours is that in Australia, with an

established legal system in which it has been clear

for many years that all civil cases are dealt with

on a civil standard, though with the varying

weighting according to the gravity of the outcome,

then we should continue to approach dealing with

civil contempts on the civil standard until such

time as there is a legislative change. When there

is a legislative change, then humble foot soldier

barristers like myself, dealing with

Justice Hodgson, are going to be able to say, this

is the law or this is not the law, and this is the

way to deal with the particular matter.

Whilst there has been this creeping judicial

introduction of the criminal standard, there is no

capacity for a transitional period, if you like.

if the change is brought about by judicial

pronouncement. But in any event, I would be

submitting to Your Honours that, for the reasons

advanced by Justice McLelland in fact, the better

view is to remain with the standard that applies at

the moment and, in particular, if I could take

whole sorry story started. It is dealt with at

Your Honours to some of the weaknesses that

page 134 of the report - do Your Honours have the

volume.	I believe it was cited by my learned
friend.	(1983) 1 NSWLR 127.

TOOHEY J:  We do not seem to have it, Mr Francey.

MR FRANCEY:  I understood my learned friend did have it on

his list which was the reason I neglected to bring

copies myself.

TOOHEY J:	The list was apparently revised.
MR FRANCEY:	I did check with my learned friend after it was

revised, Your Honour, and was assured that it was

on the list.

DEANE J: Whatever be the reason, we have not got it.

MR FRANCEY:  Could I outline it to you and I apologize for

that, Your Honours, because it is in fact the best

analysis that seems to exist. At page 134 he deals

Witham 15 30/4/93

with the decision in Bramblevale noting the words

used by the Master of the Rolls which are in

ambiguous terms, that is:

"A contempt of court is an offence of a

criminal character.

That is true, because it has punitive consequences.

A man may be sent to prison for it.

That is true.

It must be satisfactorily proved.

Well, that is satisfactory, and in Australia, in a

civil contempt matter, that is with the appropriate
degree of gravity.

To use the time honoured phrase, it must be proved beyond reasonable doubt."

Which is the words the Master of the Rolls used.

Lord Justice Winn was more circumspect, saying:

" ... unless the guilt of the appellant was

proved with such strictness of proof as is

consistent with the test 'beyond reasonable

doubt'; or as my Lord has more than once put

it, consistent with such standard as the

court, with its responsibility, regards as

consistent with the gravity of the charge - a

test which I personally prefer - the decision

that he should be imprisoned for contempt of

court cannot be sustained."

So at that stage we have perhaps an ambiguous

statement by the Master of the Rolls, one really

favouring the Australian position by Lord Justice Winn. Lord Justice Cross in that case appears to

have been of the view that the appropriate test was

proof beyond reasonable doubt, and there is an

earlier decision in which Lord Justice Cross

advanced that view. So that is the position in

Bramblevale in circumstances in which, as

Justice McLelland goes on to note, it was one in

which the point was conceded by the opponent. That

is to say, both counsel in the case conceded that

the point was to be dealt with on the basis of

beyond reasonable doubt. There was not considered

argument, there was not analysis of the history,

there was basically an acceptance that that had to

be the appropriate standard and the result was that

a person who had been imprisoned was released

because the evidence was not adequate to the

standard of beyond reasonable doubt.

Witham 16 30/4/93

TOOHEY J:  Mr Francey, do you accept that there is a

disparity of authority within this country?

MR FRANCEY: In Australia?

TOOHEY J: Yes, in this country.

MR FRANCEY:  I would say no, for this reason, because the

most authoritative statement in this country is the

decision of the New South Wales Court of Appeal in

Peek. It approves a well researched, thoroughly

analysed decision of Justice McLelland, and what is

true is that there are some individual judges and

some c·ommentators who appear to be confused as to

what the proper law it. But it was for that reason

that I said in my opening remarks that that

confusion would be completely dissipated by this
Court refusing leave, for the reasons that I have

outlined, making it clear that the reason for

refusing leave is that Peek was properly decided.

If I could illustrate, firstly, why it is that

you would come to that view and then go to an

example of the way in which confusion can arise by

reason of special leave applications and the way in

which they are disposed of. But on page 136 of

Jendell, Justice McLelland commences on the previous page considering an earlier decision of the Law Society of New South Wales v Kinsella,

manages to distinguish that, and then goes on to

deal with this matter, saying:

The problem associated with the concepts of civil and criminal contempt in the case of disobedience of an order of, or breach of an

undertaking to, the court, the overlap between

them and the procedural incidents of each,

have not escaped consideration in the United

States.

And deals with a number of commentaries. He goes

on to say:  The predominant view in the United States

concerning standard of proof in cases of

wholly civil contempt appears to be that proof

beyond reasonable doubt is not required

although to justify the sanction of
imprisonment the proof must be "clear and

convincing" -

So the position seems to be that in Australia the

standard is clear and convincing; in the United

States it is clear and convincing; historically it

was clear and convincing. That is conceded as much

in the Law Reform Commission historical analysis.

What has happened, and the only thing that has

Witham 17 30/4/93

happened, is that arising out of a United Kingdom

Court of Appeal decision, in which the point was

conceded by counsel, some observations which in
their very nature are ambiguous as I have outlined

and as has been detected by Justice McLelland, has

been allowed to creep into judicial thinking.

If I can just illustrate a way in which that

can occur and a way in which judges and advocates

do seize on comments that are made, including in

the disposal of special leave applications, that

cause some of their hares to run. It concerns a

decision that was referred to by my learned friend

of Hodgens v Hodgens. It is an unreported

decision.	Do Your Honours have a copy of it? If I
can just illustrate it briefly.	The relevant

passage is on the last page, page 10. It is an

observation by Justice Wilson, then of this Court,
refusing special leave and saying, in the

circumstances of that case:

In our view the Full Court of the Family Court

was correct in testing the decision of the

learned trial judge by reference to the

criminal standard of proof. The decision of

the court in the circumstances- of the case is not attended with sufficient doubt to warrant the grant of special leave.

That comment was relied on by Justice Hunt in the

case referred to by my learned friend as somehow

casting doubt on Peek, a decision which was binding

on Justice Hunt, leading Justice Hunt to, in any

event, decide the case before him on the grounds

that he was satisfied beyond reasonable doubt.	But
can I indicate to you how the issue came before
Justice Wilson, leading to that comment. Originally, as dealt with on page 2 of the
transcript, there was a finding of contempt by

Justice Elliott of the Family Court in which he was

silent as to what standard he applied. Later on,

the Full Court of the Family Court considered the

matter and on page 4 of the transcript there is an

extract from some observations of Justice Ellis

saying:

assuming that the appropriate standard was the

criminal standard, I would not be prepared to

draw that inference -

that is, the inference that the learned trial judge

was wrong. So really what Justice Ellis and the

Full Family Court were saying was that if you apply

the test of beyond reasonable doubt, the evidence

that was available of a contempt was so clear that

it would satisfy that standard, irrespective of

Witham 18 30/4/93

the standard in fact adopted by the learned trial

judge, he being silent on the point.

So that, ultimately, Justice Wilson says,

quite correctly, I would submit, that the Full

Court of the Family Court was not wrong in testing whether or not the trial judge was in error by

reference to the higher standard, because they were
able to say, well, if he was not in error at the
beyond reasonable doubt standard, he was not in

error on the balance of probability standards,

therefore the evidence that was available before

him was more than sufficient. So that is the way

in which Justice Wilson quite properly disposed of it, but in referring to it in that way and in that

context, it eventually is used to suggest that in

some way a member or members of this Court have

cast some doubt on the authority of Peek, which is

simply not the case, in my submission, when the

remark is analysed in the context in which it is

used.

So that when one comes to the end of that analysis, briefly, in summary, my submission is

that historically the test for civil contempt has

always been on a civil standard in this country, on

the Briginshaw basis. That was the test applied by

Justice Hodgson. He did so by reference to the

authority which best analyses the authorities,

Jendell. He does it by reference to a New South

Wales Court of Appeal decision which was binding on him and which specifically approved Jendell, and

the matter has proceeded to this point.

If there is to be some change, and if the philosophical debate that is still going on in the

texts is to be formalised in some way, it would be

best dealt with, in my submission, by the

Australian Law Reform Commission recommendation

being acted on or not. I would submit this, that

there are very good reasons for not acting on the Australian Law Reform Commission recommendations,

and that is the point that I make at point 3 of my

outline of submissions and that is that despite

criticisms of the distinction, and the suggestion

that all contempts are "quasi-criminal", it could

not be suggested that all breaches of court orders

should be regarded as criminal, or that the Court

should have no coercive power to ensure compliance

with court orders or should not be able to punish

for non-compliance. What I am saying by that is

that the court requires the power, on a civil

basis, to determine what form of sanction,

coercion, penalty to apply in the event of non-

compliance with an order. It should have the

capacity to test whether there has been contempt of an order according to the gravity of the particular

Witham 19 30/4/93

issue before it and according to the consequences

likely to flow from the particular facts that it

has.

To require every breach of a court order to be

tested on the criminal standard really would impose

an onerous burden on the court system, and that

appears to be something that has been overlooked, I

would submit, in many of the commentaries. True,

attempting to safeguard the interests of the person

accused but, in my submissin, that has always been

dealt with in this country by applying the

Briginshaw test.

Can I say this in conclusion, Your Honours,

and at point 9 I make the point, giving the
appropriate reference to the appeal book, that from
the outset of these contempt proceedings before

Justice Hodgson, the respondent, as plaintiff,

submitted that the contempt was serious and

warranted a substantial term of imprisonment. So

from the very outset, the applicant knew what he

was facing; the judge knew what was being asked of

him; it was certainly being urged on him; what also

was being urged on him is notwithstanding the

commentary in Ritchie, the appropriate law was

civil standard but according to the gravity of the

offence, and no one was in any illusion as to the

extent to which you had to be totally satisfied, to

a standard perhaps even equivalent to beyond

reasonable doubt, but in strict legal conceptual

terms His Honour was not wrong and, for those

reasons, nor was the Court of Appeal.

They are my submissions, Your Honours.

DEANE J:  Thank you, Mr Francey.

In this case there will be a grant of special

leave to appeal.

AT 3.18 PM THE MATTER WAS ADJOURNED SINE DIE

Witham 20 30/4/93