Criminal contempt but not civil contempt is a common law offence
33Proceedings 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. "
34In 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 ... "
35In 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.
36However, 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.
37On 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).
38In 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).
39In 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. "
40This 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. "
41It 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.
42Mr 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.
43Rule 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.
44However, 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 ).
45Nonetheless, 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.
46In 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.
47Howie 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.
48It 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 .
49The 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.
50If 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.
51Mr 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.
52The 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.
53This 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. "
54Their 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. "
55Their 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. "
56There 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.
57A 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. "
58Mr 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.
59At 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
... "
60Hence, 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]).
61In 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.
62On 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.
63In 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.
64In 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. "
65I 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]).
66Mr 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 ".
67The 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]).
68Athens 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)).
69Ipp 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]).
70The 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.
71The 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.
72Amalgamated 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.
73Mr 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.'"
74Mr 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]).
75For 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.