Mosman Municipal Council v Kelly

Mosman Municipal Council v Kelly - [2009] NSWLEC 92 - NSWLEC 2009 case summary — Zoe

[5]

Ainsworth v Hanrahan (1991) 25 NSWLR 155 Arnold v Minister Administering the Water Management Act 2000 (No 3) [2009] NSWLEC 56 Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 Attorney-General v Newspaper Publishing Plc [1988] Ch 333 Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Australian Consolidated Press v Morgan [1965] HCA 21, (1965) 112 CLR 483 Bailey v Marinoff [1971] HCA 49, (1971) 125 CLR 529 Boddington v British Transport Police [1999] 2 AC 143 Burwood Council v Ruan [2008] NSWLEC 167 Chiltern District Council v Keane [1985] 1 WLR 619 Coward v Stapleton [1953] HCA 48, (1953) 90 CLR 573 DJL v The Central Authority [2000] HCA 17, (2000) 201 CLR 226 Fairclough & Sons v Manchester Ship Canal Co (1897) 41 Sol Jo 225 Greater Hume Shire Council v J & L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738 Harmsworth v Harmsworth [1987] 1 WLR 1676 Hearne v Street [2008] HCA 36, (2008) 235 CLR 125 Home Office v Harman [1983] 1 AC 280 CASES CITED: Hurstville City Council v Jacobs [2007] NSWLEC 630 Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155, (2005) 221 ALR 823 Lade & Co. Pty Ltd v Black [2006] 2 Qd R 531 Markisic v Commonwealth of Australia [2007] NSWCA 92, (2007) 69 NSWLR 737 Matthews v Australian Securities and Investments Commission [2000] FCA 288, (2007) 97 FCR 396 McDonnell v Novello [2006] NSWSC 1186 Miller v Eurovox Pty Ltd [2004] VSCA 211 Mosman Municipal Council v Kelly [2007] NSWLEC 90 Mosman Municipal Council v Kelly (No 2) [2008] NSWLEC 229 Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc [2007] NSWCA 195, (2007) 70 NSWLR 411 Owners Strata Plan 37762 v Pham [2007] NSWLEC 252, (2007) 154 LGERA 150 Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19, (1999) 198 CLR 435 Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Re M; M v Home Office [1994] 1 AC 377 Re Tuck [1906] 1 Ch 692 Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] 1 Ch 422 Street v Hearne [2007] NSWCA 113, (2007) 70 NSWLR 231 Tweed Shire Council v Mannix (1983) 50 LGRA 369 Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525

[9]

JUDGMENT 1 HIS HONOUR: Mosman Municipal Council charges the respondent Mr David Kelly with contempt for disobeying an order made by the Court on 31 July 2008 that: "The respondent demolish the building consisting of a two-storey garage structure located at the rear of premises known as No. 91 Ourimbah Road, Mosman within a period of four (4) months from 31 July 2008." 2 The council seeks a declaration that he be found guilty of contempt and punished by a fine. The respondent defends the charge. BACKGROUND 3 The respondent is the owner of the property known as No. 91 Ourimbah Road, Mosman. 4 On 25 November 1999, Mosman Municipal Council granted development consent for the demolition of a shed and the construction of a double garage on the property subject to conditions. Although no construction certificate has been issued, a garage has been erected which does not bear any physical resemblance to the garage which was the subject of the consent. On 12 October 2006, the council commenced proceedings in this Court seeking an order that the respondent demolish the unauthorised structure. 5 After several unsuccessful attempts to serve him with the originating process, the Court made an order for substituted service to be effected by affixing copies of the application and points of claim to the front door of the premises and by sliding copies of the same documents under the front door. The documents were duly affixed to the front door on 28 November 2006, but were unable to be slid under the door due to a fixture placed at the base of the door. Accordingly, the Court made further orders on 15 December 2006 for substituted service to be effected by fixing the application and points of claim together with a formal notice of hearing to the front door of the premises. 6 On or about 28 December 2006, the application, points of claim, the orders of 15 December 2006 and a letter advising the respondent that the matter had been listed for hearing on 19 February 2007 were affixed to the front door of the premises. 7 On 19 February 2007, the matter came before Jagot J. There was no appearance by or for the respondent. Jagot J heard the case in the absence of Mr Kelly: Mosman Municipal Council v Kelly [2007] NSWLEC 90. 8 Her Honour was satisfied by the evidence that the erection of the garage structure was development which required development consent under the relevant environmental planning instrument and that no development consent had been obtained for the garage structure.

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(1) A judgment is not enforceable by committal or sequestration unless: (a) a sealed copy of the judgment is served personally on the person bound by the judgment, and (b) if the judgment requires the person to do an act within a specified time, the sealed copy is so served within that time or, if that time is extended or abridged, within that time as extended or abridged. (2) If the person is a corporation, the judgment is not enforceable by committal of an officer of the corporation or by sequestration of the property of an officer of the corporation unless, in addition to service under subrule (1): (a) a sealed copy of the judgment is served personally on the officer, and (b) if the judgment requires the corporation to do an act within a specified time, the sealed copy is so served before that time expires. (3) The sealed copy of the judgment must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property: (a) where the judgment requires the person to do an act within a specified time, if the person fails to do the act within that time, or (b) where the judgment requires the person to do an act forthwith or forthwith on a specified event, if the person fails to do the act as so required, or (c) where the judgment requires the person to abstain from doing an act, if the person disobeys the judgment. (4) If a person liable to committal or sequestration by way of enforcement of a judgment has notice of the judgment: (a) by being present when the judgment is directed to be entered, or (b) by being notified of the terms of the judgment, whether by telephone, telegram or otherwise, the judgment may be enforced against that person by committal or sequestration without service having been effected in accordance with this rule. (5) The court may dispense with service under this rule. (6) This rule does not apply to a committal or sequestration arising from a failure to comply with the requirements of a subpoena." 33 UCPR Pt 40 does not regulate proceedings to enforce a judgment or order by way of a fine. That is important for present purposes because the council seeks only a fine. In contempt proceedings a fine may be the preferable way of enforcing an order. For example, in contempt proceedings in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, where a trade union had failed to comply with an injunction, the High Court upheld an order that fined the Union for breach of the injunction and a further fine for each day that the injunction continued, effectively combining punitive and coercive orders. 34 SCR Pt 55 governs proceedings for punishment for contempt. Part 55 contains no service requirements. Punishment where the contemnor is not a corporation is limited to committal to a correctional centre or fine or both; and, where the contemnor is a corporation, to sequestration or fine or both. The following provisions of Pt 55 are relevant: " 6 Procedure generally

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36 The relationship between SCR Pt 55 and UCPR Pt 40 is unclear. The unclear relationship between SCR Pt 55 and the predecessor to UCPR Pt 40, namely SCR Pt 42, was noted by McHugh J in Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525 at 544 fn 105, as follows: "The power to fine, where a fine is applicable, is found in Pt 55, r 13. The relationship between Pts 42 and 55 is unclear. Although Pt 55 relates to both criminal and civil contempt, the relationship between the two Parts is not defined. It is perhaps arguable that the specific references to disobeying a judgment or order and the consequential remedies given in Pt 42 are intended to qualify the general statement of powers in Pt 55 in relation to contempts involving disobedience of orders." 37 In contempt proceedings in Miller v Eurovox Pty Ltd [2004] VSCA 211, the Victorian Court of Appeal treated Order 66.10 of the Victorian Supreme Court (General Civil Procedure) Rules 1996, which is similar to NSW UCPR 40.7, as qualifying the Victorian Supreme Court's power to punish for contempt by committal or sequestration. They did not refer to McHugh J's dictum in Witham but in effect they accepted the argument that his Honour suggested. They did not expressly consider the possibility that Order 66.10 was an independent and alternative regime to the contempt procedure for enforcement of an order by way of contempt proceedings. The appellants were found guilty of contempt for disobeying a freezing order and sentenced to imprisonment. The Court of Appeal held that they could not be sentenced to imprisonment because they had not been served with a copy of the order endorsed with the prescribed penal notice required by Order 66.10. Vincent JA (Batt and Buchanan JJA agreeing) held: "…it is apparent, in my view, that a clear distinction is made in the Rules between the penalties of committal and sequestration on the one hand, and the imposition of a fine on the other. Order 66.10 is applicable only to the enforcement of orders by sequestration or committal. Under Order 75.11 contempt may be punished, in the case of a natural person, by committal to prison or a fine or both. It does not seem to me that the absence of the endorsement required, if the order is to be enforced by possible imprisonment, would remove the power of the Court to impose a fine." 38 As a result of the decision in Miller v Eurovox and the dictum of McHugh J in Witham v Holloway, it appears that UCPR Pt 42 qualifies SCR Pt 55 to the limited extent that it is applicable. In particular, in contempt proceedings, the contemnor cannot be punished for contempt by way of committal or sequestration for disobeying an order requiring a person to do an act within a specified time unless a sealed copy of the order has been served on the contemnor endorsed with the prescribed penal notice as required by UCPR 40.7 (unless the exception in 40.7(4) applies or the court dispenses with service under 40.7(5)).

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43 Contrary to the respondent's submission, the references in the applicant's notice of motion and submissions to "punishment' and "fine" do not indicate that this proceeding is for criminal contempt. SCR Pt 55 uses those words, but applies to both civil and criminal contempt. 44 In support of the submission that there is no power to fine for civil contempt and that therefore this must be a criminal contempt proceeding, the respondent refers to the view of Windeyer J in Australian Consolidated Press v Morgan [1965] HCA 21, (1965) 112 CLR 483 that the Supreme Court of New South Wales did not have power to fine for a civil contempt of disobedience to an order. The submission overlooks that Windeyer J specifically acknowledged that it all depended on the rules of court, because his Honour referred to the Queensland rules of court which did empower the court to impose a fine for disobedience of a court order: at 500. Whatever the position was in 1965, now the NSW rules of court, in SCR Pt 55, empower the Court to fine a defendant in both civil and criminal contempt proceedings. Further, as McHugh J said in Witham v Holloway, under SCR Pt 55 a person can be fined or committed to prison by way of punishment for breach upon proof of wilful disobedience rather than upon proof of contumacy: at 543. 45 The theoretical bases of the distinction between civil and criminal contempt was addressed in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106 as follows: "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': Fox, History of Contempt of Court (1927), p. 1… … 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…" 46 The High Court described these theoretical bases as unsatisfactory (at 107) and said that there was very great difficulty in maintaining the distinction and in elaborating a precise and certain criterion for the distinction (at 108).

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47 The distinction between civil and criminal contempt was considered in Arnold v Minister Administering the Water Management Act 2000 (No 3) [2009] NSWLEC 56 where I held that the Commonwealth of Australia was immune from proceedings for criminal contempt. In that case the alleged contempt, which I held to be a criminal contempt, was said to have been a threat not to make an ex gratia payment to the applicant if the applicant continued a legal proceeding against the Commonwealth. 48 Disobedience to a court order in a civil proceeding is a civil contempt but amounts to criminal contempt if it involves deliberate defiance; that is, as is sometimes said, if it is contumacious. This appears clearly in Witham v Holloway [1995] HCA 3, (1995) 183 CLR 525, which explained in detail why the historical distinction between civil contempt and criminal contempt is unsatisfactory. There the defendant was found guilty of contempt in failing to comply with an order requiring him to set out in an affidavit detail of his property and a subsequent freezing order requiring him not to reduce the value of his property below a specified amount. He was committed to prison for one month. The trial judge decided the case on the balance of probabilities and was upheld by the Court of Appeal. The High Court held that was an error because the standard of proof was beyond reasonable doubt in all contempt cases, whether or not they were historically characterised as criminal or civil contempts. The joint judgment explained the difference between civil and criminal contempt as follows (at 530, omitting citations): "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. 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." 49 Similarly McHugh J, concurring in the result, held at 538-539 (omitting citations): "…Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts. Civil contempts, on the other hand, are concerned with failures to comply with judgments or orders of the courts. But civil and criminal contempt overlap. Thus, disobedience to the order of a court constitutes criminal contempt when the disobedience is contumacious. Defiance of the court's order renders criminal what would be otherwise civil contempt. Where non-compliance with a judgment or order goes beyond mere breach and involves misconduct, civil contempt also has 'a penal or disciplinary jurisdiction [that is] exercised by the court in the public interest.'" 50 The joint judgment rejected the proposition that the distinction between civil and criminal contempt lay in the difference between proceedings which were remedial or coercive in the interests of a private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process: at 531-534. They indicated that a breach of an order that cannot be remedied is a civil contempt. They gave as an example the freezing order in that very case, that the defendant not reduce his assets below a specified sum, which could not then be remedied once he had done so: at 532. While it may be true that breach of such a freezing order literally cannot be remedied, a contempt proceeding for the breach, in my view, is nevertheless primarily concerned with coercion, seeking to compel the respondent to restore the assets spirited away and thus, in substance, to carry out the terms of the order: Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (No 2) [1988] 1 Ch 422 at 443 per Nicholls LJ.

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55 However, the distinction had to be recognised in the context of appeal rights in Hearne v Street [2008] HCA 36, (2008) 235 CLR 125 because s 101(6) of the Supreme Court Act 1970 distinguishes between criminal and civil contempts by excluding an appeal from a judgment or order by which a person has been found not guilty of criminal contempt. In that case, directors of two company that were defendants in litigation, were charged with contempt for breach of an implied undertaking to the court not to use documents served on behalf of the plaintiff for any purposes not directly concerned with the conduct of the proceedings. The charges were dismissed. The plaintiffs appealed successfully to the Court of Appeal, notwithstanding the legislative exclusion. An appeal by the directors to the High Court failed. The High Court and a majority of the Court of Appeal held that the directors were guilty of civil contempt and therefore the legislative appeal exclusion was inapplicable. 56 The High Court held that, in light of the history of the matter, the proceedings were not punitive and were therefore civil: at [141]. They considered that the characterisation of the proceedings turned on whether their purpose was remedial or coercive (civil contempt) or punitive (criminal contempt). Thus, there appears to have been a revival of the punitive/remedial or coercive dichotomy, which was not favoured in Witham. This result seems to have been influenced by the agreement of the parties with that method of characterisation. In that regard, it was held at [133] (omitting citations): "In the end the appellants departed from any suggestion that all contempts were criminal by supporting the dissenting opinion of Handley A-JA that the question whether an appeal lay to the Court of Appeal from the dismissal of proceedings for contempt depended on whether 'it clearly appears that the proceedings are remedial or coercive in nature' as distinct from being punitive. The distinction between that which is remedial or coercive on the one hand and that which is punitive on the other corresponds with the distinction between seeking to ensure compliance with the relevant obligation and seeking to punish for past breaches of it. It is a distinction to be applied, as the parties agreed, bearing in mind the need to approach the application of the person seeking the remedies for contempt by reference to its substantial character, not to merely formal or incidental features. On the facts, Handley A-JA considered that the purpose was not remedial or coercive, but punitive. On the other hand, the analysis of the facts made by the majority led them to the opposite view." 57 The High Court's conclusion that the contempt proceedings were not punitive and hence were civil was reached notwithstanding that the breach could not be remedied. The conclusion flowed from their Honours' analysis of the history of the proceedings, as the plaintiffs must have seen it: at [134] - [141]. The analysis showed that there was no apology or undertaking by the defendants to avoid repetition and that the contempt proceedings could reasonably be seen as having a deterrent purpose. 58 Thus, disobedience to a court order in civil proceedings is a civil contempt, but, it seems, amounts to a criminal contempt if: (a) the disobedience was contumacious: Witham v Holloway ; or (b) punishment serves no remedial, coercive or deterrent purpose, but only a punitive purpose of punishing a past breach: Hearne v Street . 59 The former focuses on the nature of the contempt. The latter focuses on the purpose of the contempt proceedings. 60 It is difficult to see why there are not common statutory appeal rights for civil and criminal contempts in NSW, as there are in England: Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 362 per Donaldson MR. Once the criminal standard and appeal rights are the same, of greater assistance than the civil/criminal distinction is a categorisation (along the lines suggested by Donaldson MR) between (a) a breach, or assisting in the breach, of a court order, and (b) other conduct which involves an interference with the due administration of justice. As Donaldon MR said, what distinguishes the two categories is that generally the former is a matter for the parties to raise by complaint to the Court, whereas the latter is generally a matter for the Attorney-General (or other appropriate officer) to raise: at 362. I suggest that this proposal is deserving of consideration by the law reform commission, bearing in mind the strong judicial criticisms of the existing distinction between criminal and civil contempt including the dictum of McHugh J in Witham that there is a strong case for abolishing the distinction.

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Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon." 67 The principles relating to the formulation of a statement of charge were summarised by the Full Federal Court in Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155, (2005) 221 ALR 823 at [32] as follows (omitting citations): "(a) appropriate safeguards must be applied to protect the rights of parties accused of contempt; (b) parties accused of contempt are entitled to know the gist or substance of the charges against them; (c) where there is a Statement of Charge, the gist or substance of the allegations must be contained within the Statement of Charge and any particulars, and any deficiency cannot be remedies by resort to affidavit evidence; (d) amendments to charges will only be allowed to correct minor deficiencies, in circumstances where the accused suffers no prejudice; (e) where amendments are allowed, accused parties must be given an opportunity to put anything they fairly wish to say as to the evidence, the law and the sentence as they pertain to the amended charges; (f) parties accused of contempt are entitled to conduct their case on the basis that the only charge which they are required to meet is that which has been particularised against them; and, (g) appellate courts should not speculate as to whether, if a charge had been properly drawn or amended, the evidence adduced would have been the same or the conduct of the accused party's case would have been unaltered." 68 In the much cited case of Harmsworth v Harmsworth [1987] 1 WLR 1676 (CA) at 1682, Nicholls LJ quoted with approval from the judgment of Sir John Donaldson MR in Chiltern District Council v Keane [1985] 1 WLR 619 at 622, as follows: "The test, as I have said, is: does it give the person alleged to be in contempt enough information to enable him to meet the charge? If, for example, a defendant is subject to an injunction to leave a stated house not later than a particular time on a particular day, then it would be sufficient to say that he had failed to comply with that order, because it only permits of one breach, namely failure to leave the house by the time stated." 69 Similarly, in McDonnell v Novello [2006] NSWSC 1186 at [26] Barrett J, addressing the sufficiency of a statement of charge, said: "Where the order in question requires a particular act to be performed and the allegation is that the act was not duly performed, the particulars will, of their nature, generally be brief.". 70 The present case is no different. It is sufficient for the statement of charge to say that the respondent failed to comply with the order, because it only permits one breach, namely failure to demolish the garage by the time stated. That is what the statement of charge does, fulsomely. It includes a statement to the effect that the respondent failed to demolish the garage by the time required by the order, or at all. 71 As contempt is simply disobedience to a court order, the contemnor's state of mind, in particular whether the disobedience was contumacious, in my opinion, is irrelevant to whether there was a contempt. It is only relevant to penalty. I analysed the authorities supporting this proposition in Burwood Council v Ruan [2008] NSWLEC 167 at [7] - [14]. It is convenient to substantially repeat that analysis. 72 There are three classes of contempt: technical, wilful and contumacious. Technical contempt is where disobedience of a court order (or undertaking to the court) is casual, accidental or unintentional. Wilful contempt is where the disobedience is more than that, but is not contumacious. Contumacious contempt is where there is a specific intention to disobey a court order or undertaking to the court, which evidences a conscious defiance of the court's authority. Although a contempt may be established, in the circumstances of the case the court may decide not to make any order. The element of intention is relevant to whether any order should be made and, if so, to punishment. These propositions are, in my view, supported by the following authorities.

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Conceding that such categories of contempt may sometimes overlap, in a case of a technical contempt, where the contemnor has offered an apology which the Court accepts, it will sometimes be sufficient to make a finding of contempt coupled with an order for the payment of costs. Where a wilful contempt is shown, in the sense of deliberate conduct but without specific intent to defy judicial authority, a finding of contempt and an order for the payment of costs may not be sufficient. In such a case, a fine (and sometimes more) may be needed to vindicate the authority of the court. But in a case of contumacious defiance of a court's orders and authority, it will frequently be appropriate for a custodial sentence to be imposed as a response to an apparent challenge to the authority of the law.'" 75 In Maniam (above) at 314-315, Kirby P (Hope A-JA agreeing) made similar observations, noting that for technical contempts the court will usually accept an apology from the contemnor but may order the contemnor to pay costs. 76 Earlier, in Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 367 the Court of Appeal (Street CJ, Hope and Reynolds JJA) stated: "…[T]he development of a distinction between what Lord Diplock in Attorney-General v Times Newspapers Ltd called 'conduct which is within the general concept of 'contempt of court' (often called 'technical contempt') and 'conduct included within that general concept, which a court regards as deserving of punishment in the particular circumstances of the case'. This distinction was also referred to by Lord Reid:'…there must be two questions; first, was there any contempt at all, and, secondly, was it sufficiently serious to require, or justify the court in making, an order against the respondent?' … It would be wrong to assume that it follows that there are two forms of contempt, one being 'technical contempt' and the other being 'actual' contempt. 'Technical' contempt is contempt. For a variety of reasons, although contempt is established, the court may decide 'not to exercise its summary jurisdiction'. These words simply mean that in the circumstances of the case, the court may decide to take no action in the matter. In a long history of reported judgments, courts have expressed the reasons why they have decided to take action, or not to take action. Sometimes these reasons have tended to obscure whether the question being dealt with is what constitutes contempt, or what the court should do in the particular case. As Lord Reid pointed out in Times Newspapers Ltd case, it is confusing to import into the question whether there is any contempt at all, or into the definition of contempt, matters which are related to the course which the courts will take, contempt having been established. In considering the reported decisions, it is important to appreciate this possible source of confusion." They continued at 370: "If contempt has been established, the question arises whether the court should exercise its summary jurisdiction to punish. … … …Once contempt is established, the court has to decide what action it should take, in the light of all the circumstances of the particular case. It should not punish simply because contempt has been established; and it must be careful to satisfy itself that the circumstances require that it exercise its jurisdiction." 77 The irrelevance of intention to contempt and its relevance to penalty were also emphasised in Ainsworth v Hanrahan (1991) 25 NSWLR 155. The opponent was found to have committed a technical contempt, and to have acted without intention to interfere with the administration of justice. Kirby P (Samuels and Handley JJA agreeing) said at 168: "Intention is always relevant to punishment for contempt. Clearly, this is not a case where any punishment is called for". A declaration was made that a contempt had occurred but the claimant was deprived of any costs. 78 Similarly, in Re M; M v Home Office [1994] 1 AC 377 at 426-427 Lord Woolf approved the dictum of Lord Oliver in Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 at 217-218: "The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited." 79 In Mudginberri the High Court (in the joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ) suggested that no punishment should be imposed by way of fine where the contempt is merely technical but may be imposed where it is wilful. They held: "More recent decisions indicate that a fine may be imposed when the contempt consists of wilful disobedience to a court order in the sense that the disobedience is not casual, accidental or unintentional (at 106-107).

[61]

…[T]he reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional (at 113)." 80 McHugh J took the same view in Witham at 541: "But this Court has now authoritatively determined that in some circumstances courts do have power to fine for civil contempt (Mudginberri …). That power exists where the breach has not been the result of 'casual, or accidental and unintentional disobedience' ( Fairclough v Manchester Ship Canal Co (1897) 41 Sol Jo 225). If, therefore, the breach has been wilful, it is no answer 'to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order' ( Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194). Thus, if the act or omission that constitutes the breach was done wilfully, the contemnor is now liable to be fined even if the breach was not contumacious." 81 In Lade & Co. Pty Ltd v Black [2006] 2 Qd R 531 at [57], Keane JA held (omitting citations): "Under the general law, apart from statute, it was established that 'contempt lies in disobedience of a court's order'. References in the authorities to the requirement that conduct be contumacious were concerned with the power to fine a contemnor by way of punishment for a contempt; they were not concerned with establishing whether a contempt had occurred." 82 These authorities hold that a technical breach of an order is nevertheless a contempt, albeit not deserving of punishment by fine or committal. More recently, it has been said that, "proof that contempt has been committed by breaching a court order involves proving enough to conclude that the action or inaction said to constitute the breach was deliberate, and not casual, accidental or unintentional": Markisic v Commonwealth of Australia [2007] NSWCA 92, (2007) 69 NSWLR 737 at [64] per Campbell JA (Handley AJA and Bell J concurring). It is reasonably clear that his Honour intended to refer to punishable contempt because immediately before making that statement he quoted from Mudginberri and said, "As I read their Honours, their view is that the imposition of punishment is justified for the breach of a court order only if there is wilful disobedience in the sense of deliberate action or inaction that is not casual, accidental or unintentional". 83 The respondent refers to an obiter suggestion of Cripps J in Tweed Shire Council v Mannix (1983) 50 LGRA 369 at 375 that it is not appropriate to use SCR Pt 55 for a "civil" contempt of disobeying a court order. It seems his Honour thought that the only appropriate course was to enforce the order under the former SCR Pt 42, now UCPR Pt 40. In Owners Strata Plan 37762 v Pham [2007] NSWLEC 252, (2007) 154 LGERA 150 at [38], Pain J disagreed and, with respect, so do I. Disobedience of a court order is a well recognised form of civil contempt, proceedings for civil contempt for disobedience to a court order are legion, and SCR Pt 55 applies to all forms of contempt. Moreover, where, as in the present case, the only penalty sought is a fine, that penalty is only available under SCR Pt 55 and not under UCPR Pt 40.

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