THE CONTENTIONS OF THE PARTIES ON THE APPEAL
In their grounds of appeal, Microsoft contend that the primary Judge erred in failing to find that on 25 January 1995, Mr. Marks (i) "reproduced" the whole or a substantial part of their programs; and (ii) "sold and supplied" to Mr. Douglas a copy of the programs "without supplying the original packaging, user manuals or disks therewith", that is to say, in failing to find that Mr. Marks breached orders 1(a) and (b). It is further contended for Microsoft that the trial Judge erred in holding that, because the evidence did not establish that the copy of the program "Microsoft Office" sold and supplied by Mr. Marks to Mr. Douglas on 25 January was made from an unauthorised copy of Microsoft's program, the charges were not made out.
The submissions made on behalf of Mr. Marks are primarily directed toward upholding the findings and conclusions of the trial Judge. However, though no objection to competency and no notice of contention was filed, it is further submitted for Mr. Marks that Microsoft's appeal was not competent as, in the light of the approach now adopted by the High Court in Witham v Holloway, it was in substance, if not in form, an impermissible attempt to appeal against an acquittal in a criminal proceeding. Reliance is placed upon "the Mastertouch principle" (Thompson v Mastertouch T.V. Service Pty. Ltd. (No. 3) (1978) 38 FLR 397 ("Mastertouch") at 408, 412).
CONCLUSIONS ON THE APPEAL
It will be convenient to deal first with Mr. Marks' challenge to the competency of the appeal.
(a) The challenge to the competency of the appeal
On behalf of Microsoft, it is contended that an appeal lies here as of right by virtue of the provisions of s.24(1)(a) of the Federal Court of Australia Act 1976, whereby, subject to exceptions not here material, the Court is invested with jurisdiction to hear and determine, inter alia, appeals from a judgment of the Court constituted by a single Judge. But, as has been noted, it is submitted for Mr. Marks that, by virtue of the Mastertouch principle, this Court's appellate jurisdiction does not extend to permit an appeal from an acquittal in criminal proceedings, as Mr. Marks contends the dismissal of Microsoft's motion for punishement for contempt should now be regarded, given the approach to contempt proceedings now taken by the High Court in Witham.
Moreover, it is contended for Mr. Marks that, even apart from what was decided in Witham, the charges of wilful and contumacious disobedience made in paras.24 and 25 of the statement of charges, coupled with the application for a custodial sentence, are further indications of the criminal character of the proceedings. In this connection, reliance is placed, for Mr. Marks, upon observations in Mudginberri which referred, in turn, to dicta in Australian Consolidated Press
Ltd. v Morgan (1965) 112 CLR 483 ("Morgan") (per Barwick C.J. at 489; per Windeyer J. at 499-500). In Mudginberri, Gibbs C.J., Mason, Wilson and Deane JJ., speaking of cases where wilful or contumacious disobedience of an order amounted to criminal contempt, said (at 108):
"The point in these cases is that wilful disobedience to a court's order, especially if it occurs in circumstances where the conduct amounts to public defiance, involves a public injury and this calls into play a penal or disciplinary jurisdiction to deal with criminal contempt... ."
In Mastertouch, the respondent was charged with an offence under s.79 of the Trade Practices Act 1974. The trial Judge found that the appellant, the informant officer of the Trade Practices Commission, had failed to prove the offence and dismissed the information. The appellant purported to appeal, as of right, from that judgment. An objection to competency was upheld.
Deane J. (with the concurrence of Smithers and Riley JJ.) said (at 412-3):
"An appeal, as of right, from a judgment of acquittal pronounced by a superior court is not a recognized part of the appellate process in the administration of criminal law. The existence of such an appeal is contrary to a fundamental principle of the common law. There is no relevant legislative precedent for the Crown or other prosecutor being given authority as of right to institute or maintain such an appeal. ...[I]t is a well-established principle of statutory interpretation that a statute is not to be taken as effecting a fundamental alteration in the general law or abolishing or modifying fundamental common law rights unless it uses words that point clearly
and unambiguously to that conclusion. Applying that principle of construction to the present case, I consider that the conclusion is unavoidable that the general words used in s.24(1)(a) and (b) to confer jurisdiction to hear and determine appeals' do not confer jurisdiction to hear and determine appeals in circumstances where the existence of the jurisdiction and the right to invoke it would be contrary to a fundamental principle relating to the circumstances in which an appeal should exist. The right of the subject which finds expression in that principle, namely, the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction, is not, upon proper principles of statutory interpretation, to be swept aside by the general terms of a statute which has no underlying policy requiring that such terms be given such an effect and which contains nothing that points clearly or unmistakably or, indeed, at all, to that effect as having been either contemplated or intended." In Australian Building Construction Employees' and Builders Labourers' Federation v David Syme & Co. Ltd. (1982) 59 FLR 48 ("BLF"), which is also strongly relied on by counsel for Mr. Marks, the appellant brought proceedings against each respondent alleging criminal contempt by interference with the due administration of justice in deregistration proceedings. The relief sought in the contempt proceedings was refused at first instance. It was held, applying Mastertouch, that a purported appeal from that refusal was incompetent. Bowen C.J., Evatt and Deane JJ. commenced their reasons with these observations (at 49): "Contempt of court has traditionally been divided into criminal contempt and civil contempt. In essence, the distinction between the two is that criminal contempt ordinarily consists of a wrongful interference with the due administration of justice while civil contempt ordinarily consists of a refusal or failure to comply with a specific order or direction of, or undertaking given to, a court. The dividing line between the two forms of contempt is, in some cases, unclear... . The functions which the two forms of contempt serve tend to overlap. Criminal contempt primarily exists to protect the due administration of justice in the public interest while civil contempt primarily exists to make the administration of justice effective for the individual litigant. There is, however, a public element in civil contempt since the administration of justice would be undermined if a specific order or direction of, or undertaking given to, a court of law could be disregarded with impunity... ." Their Honours went on to say (at 53): "It is true that proceedings for criminal contempt are, in some respects, sui generis. They are, nonetheless, plainly criminal in character'... . A finding of guilt of criminal contempt is a conviction'... of an offence'... (so grave an offence as contempt of court'). In Re Thompson... the Full Court of the Supreme Court of Victoria (Williams, Holroyd and Hood JJ.) held that an appeal against an order attaching the appellant for contempt of court in publishing certain articles in a newspaper commenting on pending proceedings was incompetent for the reason that the proceedings for attachment were a criminal matter, and therefore there is no appeal to this Court'. Their Honours commented that the purported appeal was virtually an appeal from a punishment inflicted by a judge presiding in the Criminal Court for a criminal offence'... (see, also, the equally strong comments of Cussen J. in Re Dunn...). Acquittal of a charge of criminal contempt after a hearing on the merits is, in our view, an acquittal in criminal proceedings for the purposes of the established principle that no appeal lies from an acquittal on the merits of a criminal charge. Prima facie, the effect of the decision in [Mastertouch]... is that the general provisions of s.24 of the Act should not be construed as conferring, upon this Court, jurisdiction to hear and determine an appeal from a judgment of acquittal of a charge of criminal contempt after a hearing on the merits by a single judge of this Court or by the Supreme Court of a Territory." BLF is authority for the absence of any right of appeal in a moving party who is unsuccessful at first instance if the contempt alleged is criminal. But, as the opening observations there made indicate, the reasoning in BLF did, nonetheless, accept the existence of the distinction between civil and criminal contempts, and the rationale for that distinction. In Davern v Messel (1984) 155 CLR 21, an argument that Mastertouch was wrongly decided was rejected, but the case was distinguished. Gibbs C.J. (with the agreement of Wilson J.) said (at 33): "If Mastertouch is wrong, it would seem to follow that s.24 would give an unqualified right of appeal to the Federal Court from a judgment of acquittal based on a jury's finding of not guilty... ; that would be an unprecedented legislative innovation, at least in England or Australia. I accordingly respectfully agree with the conclusion of Deane J. in ... Mastertouch ... that the general words of s.24 do not affect the right of the subject to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction... . Room may remain for argument on the question when a hearing is not one on the merits, but that question raises no difficulty in the present case. To approve of the decision in ... Mastertouch ... is not, however, to resolve the present question, since, as I have said, that decision dealt with the case of an appeal brought directly from an acquittal. We are now concerned with the case of an appeal brought from a decision given on an appeal from a conviction. The question is whether, in such a case, the general words of the statute permitting the second appeal should not be understood to confer on the ultimate appellate court power to correct a patent error of law which has been committed by the first court of appeal. I can see no reason in principle or authority why in such a case the general provisions of the statute should be given a restricted meaning." Mason and Brennan JJ. were of the same view for similar reasons (at 46-61). Their Honours noted (at 46) that the decision in Mastertouch "has been consistently followed in the Federal Court" (examples were then given, including BLF), "though not always without reservation". Murphy J., in dissent, (at 63) approved Mastertouch and held (at 64) that it applied since "[a]n artificial distinction should not be drawn between acquittals at first instance and at other stages". Deane J. also dissented on the application in that case of s.24(1) of the Federal Court of Australia Act (at 66-70). Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15 ("Hinch") is significant for several reasons. First, some general observations there made by Deane J. were, as we will see, to be influential as they were to be subsequently endorsed in Witham. Secondly, and significantly for present purposes, the Full High Court in Hinch later considered the procedural nature of the case before it in the context of an application for costs. Hinch had been convicted, and fined, for interfering with the due administration of justice. The conviction for criminal contempt was upheld and the Crown applied to the High Court for the costs of the High Court appeal. Mason C.J., Wilson, Deane, Toohey and Gaudron JJ. said (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... . However, in our view, 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, ... . The distinction between an appeal following a trial on indictment and proceedings for contempt of court has been acknowledged by the Judicial Committee of the Privy Council. In Shamdasani v King-Emperor... Lord Goddard, delivering the decision of their Lordships, said: Where the Crown appears to uphold a conviction in a criminal case it is not the practice to award costs to the appellant in the event of the appeal succeeding. Although this matter is one which is known as a criminal contempt it obviously is in a different category from an ordinary criminal case.'
See also Perera v The King... .
In every case, it comes down to a question of discretion. The Court has considered the circumstances of the present case and the submissions advanced for the appellants but sees no reason why the ordinary rule should not apply. The appellants must therefore pay the costs of the respondent in each case."
In other words, while the contempt was referred to as "criminal" in character, some procedural aspects of the case were seen as different from those of an ordinary criminal case.
The power of this Court to punish for contempt was fully considered in Mudginberri. The question in Mudginberri was whether this Court had power to impose a fine for disobedience of an order, i.e. in a case of civil contempt.
Gibbs C.J., Mason, Wilson and Deane JJ., citing s.31 of the Federal Court of Australia Act and s.24 of the Judiciary Act, noted (at 105-6) that in 1903, the Supreme Court of Judicature "had power to punish for contempt, whether civil or criminal". Their Honours went on to say (at 106):
"Punishment for contempt serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as civil contempt'; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as criminal contempt'... . As Lord Diplock said in Attorney-General v Leveller Magazine Ltd.... criminal contempts `... all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process'.
The distinction ... which has often been made between civil and criminal contempt seems to have originated in the seventeenth century... . The existence of the distinction has been recognized in judgments of this Court... . The principal
theoretical basis of the distinction is that disobedience to the process and orders of the court in civil proceedings is said to be a civil wrong, a matter between party and party, enforcement being for the private benefit or interest of the party seeking enforcement, whereas impeding the administration of justice is a public wrong. A secondary basis for the distinction is that the main purpose of sanctions for disobedience in civil proceedings is coercive rather than punitive... ."