"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."
41 After Witham v Holloway, it appeared that the distinction between criminal and civil contempt was only of historical interest given the decision that all charges of contempt were realistically to be seen as criminal in nature and had to be proved beyond reasonable doubt. That was the approach taken in Crowther v State of Queensland: see [27] above.
42 However, a distinction between civil and criminal contempt may still have significance where the legislature has distinguished between the two. For example, s 101(5) and (6) of the Supreme Court Act 1970 (NSW) provides for an appeal in any proceedings that relate to contempt 'whether civil or criminal', except for an appeal in proceedings that relate to "criminal" contempt in which the person charged is found not to have committed contempt. In Street v Hearne [2007] NSWCA 113, (2007) 70 NSWLR 231 a majority of the Court of Appeal held that a breach by a litigant of an implied undertaking not to use documents served by the opposite party except for the proper purposes of the litigation, was a civil contempt; therefore an appeal against acquittal was competent under those statutory provisions. Ipp JA [Basten JA generally agreeing) held that the allegations were "of breaches of an implied undertaking that were wilful but not contumacious in the broad sense - and were merely casual, accidental or unintentional" and hence were "prima facie civil": at [61]. His Honour concluded that the prima facie conclusion had not been rebutted: at [82]. In particular, he held that the purposes of the contempt proceedings were not punitive but remedial.
43 An appeal to the High Court failed: Hearne v Street [2008] HCA 36, (2008) 235 CLR 125. The High Court held that the proceedings were remedial or coercive, not punitive, in nature, and therefore were to be classified as relating to civil contempt: per Hayne, Heydon and Crennan JJ at [141], Gleeson CJ agreeing at [2], Kirby J agreeing at [24].