Novelly v Tamqia Pty Ltd

The primary judge's reasons

1. The primary judge correctly proceeded on the basis that all charges of contempt whether civil or criminal must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534; [1995] HCA 3; Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [132]. His Honour concluded that the contempt motion should be dismissed essentially for the following reasons.
2. First, the statements of charge expressly particularised the alleged breaches of the undertakings as being contumacious, and those were the "only" charges the defendants were required to defend (at [9], [10], [115]).
3. Second, civil contempt becomes criminal contempt if it is established beyond reasonable doubt that the conduct is contumacious (at [114(1)], [117]); the essence of contumacious conduct being a deliberate defiance of compliance with court orders, that is a clear manifestation of a determination not to obey (at [80]).
4. Third, although his Honour was satisfied beyond reasonable doubt that the respondents had committed a civil contempt by failing to comply with the storeroom undertaking and the own key undertaking, but not the missing key undertaking, within 28 days of 24 November 2022 (at [77]-[78]), he concluded that Mr Novelly had failed to establish beyond reasonable doubt that the alleged breaches, as found, were contumacious (at [10], [114(5)]).
5. Fourth, where a statement of charge alleges criminal contempt by an express particularisation of contumacious conduct which is not expressed to be a "further or alternative" element of the charge, the charge must fail if that element is not made out. Further, as a matter of procedural fairness, Mr Novelly could not fall back on a "lesser" charge of civil contempt if the alleged criminal contempt has not been made out: at [115].
6. Mr Novelly appeals from the principal judgment, including the costs order as varied on 18 October 2023. There is no challenge to the finding that the breaches of the undertakings, as found by the primary judge, were not contumacious.

Issues on appeal

1. The appeal raises three issues: 1. the competency objection: whether the appeal is incompetent, as the respondents contend, relying on s 101(6) of the Supreme Court Act; 2. the characterisation inquiry: whether the primary judge erred in characterising the contempt proceedings as criminal only; and 3. the procedural fairness inquiry: whether the primary judge further erred in finding that it would be procedurally unfair to the respondents to make a finding of civil contempt because the allegation of "contumacy" in statements of charge is an element of a charge of criminal contempt and was not expressed as a "further or alternative" element of the charge.

Distinction between civil and criminal contempt

1. It is necessary first to say something about the distinction between civil and criminal contempt, noting that the distinction has been much criticised as being of an "unsatisfactory nature" (Australasian Meat Industry Employees Union v Mudginberri (1986) 161 CLR 98; [1986] HCA 46 at 107), and "in significant respects illusory" (Witham v Holloway at 534).
2. In Witham v Holloway at 530, Brennan, Deane, Toohey and Gaudron JJ described the distinction thus: 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.
3. McHugh J at 538 spoke in similar terms: … Criminal contempts are acts or omissions that have a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings. 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. … (Footnotes omitted.)
4. However, as Prof Rolph has observed in Contempt (2023, The Federation Press) at 136, the distinction between civil and criminal contempt is not a complete one and the High Court has recognised that there is a "middle ground" in which the categories "overlap" and that a given contempt may have a "double aspect", having both civil and criminal dimensions, referring to statements of Dixon J in R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208; [1951] HCA 3 at 253. Prof Rolph also refers at 136 to the fact that courts have recognised that, although non-compliance with a court order or undertaking is a civil contempt, if the breach occurs with contumacy or wilful defiance, it may be "transformed" into a criminal contempt. For example, in Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127 at 132, McLelland J said, with reference to the statements by Dixon J in R v Metal Trades Employers' Association at 253-254: Frequently, disobedience of an order of, or breach of an undertaking to, the court is described as "civil contempt" and distinguished from conduct prejudicial to the administration of justice which is described as "criminal contempt". It is however necessary to recognize that conduct which falls within the description of "civil contempt" in the above sense may have some element such as contumacy or defiance of the court's authority, which renders it also a criminal contempt. Accordingly proceedings in respect of disobedience to an injunction or breach of an undertaking may assume a "double aspect". (Citations omitted.)
5. McLelland J also referred at 132-133 to The Law Society of New South Wales v Kinsella (Court of Appeal, 2 July 1980, unreported), where Hope, Reynolds and Samuels JJA described the position thus: Proceedings such as the present are brought primarily to ensure that a person who has given undertakings to the court complies with those undertakings. They are concerned to ensure that what has been ordered by the court or what has been undertaken to the court shall be carried out. However in particular cases, in addition to ensuring that the court's order or that undertakings to the court are carried out, the court is constrained to have regard to the attitude of the person who has committed breaches, in this case breaches of undertakings, and to see whether there is contumacy on his part in respect of which it should impose some punishment. The court does not make orders uselessly. It makes orders in order that they may be complied with. If they be flouted, the court must ensure that the person who flouts them realises that he does so at his peril. In the same way, if undertakings are given to the court, they are given to the court and accepted by the court on the basis that they will be carried out. The court will not be flouted by flagrant breaches of the undertakings. Contumacy is a form of criminal contempt. In order that it be established one must be satisfied beyond reasonable doubt about the events that have taken place, and that they constitute contumacy. (Emphasis added.)
6. In Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21, Barwick CJ observed at 489 that a contempt by breach of a court order or an undertaking given to the Court "may be accompanied by such contumacy or defiance [on the part of the alleged contemnor] as evidences a criminal as well as a civil contempt" (emphasis added). Windeyer J at 499-500 identified two bases for discrimination between civil and criminal contempt, being deliberate defiance of a court's order, and the character and purpose of the punishment. In Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Limited (2014) 47 VR 527; [2014] VSCA 261 at [157], the Victorian Court of Appeal said of Windeyer J's two bases that, "the former was a description of contumacious conduct. The latter stands apart from the quality of the contemnor's conduct".
7. The authorities recognise that there is no bright line of distinction between civil and criminal contempt constituted by a breach of court orders. Windeyer J said in Morgan at 501 that the line between a civil and criminal contempt cannot always be sharply drawn since conduct may amount to both if a litigant not only disobeys a court's order but does so in a deliberately defiant manner. The same point is made in Grocon at [163]. In Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [73], Beazley JA pointed out that, read in context, Windeyer J's use of the word "deliberate" meant conduct that was more than just wilful, that is to say, was contumacious.
8. In Mudginberri, the joint judgment at 108 was critical of the artificiality and complexity of the concept that a contempt "becomes" criminal when the primary purpose of exercising the power changes from the vindication of the rights of the plaintiff to the vindication of the authority of the Court, given that those objects were so "intermixed".
9. In Witham v Holloway, McHugh J noted that civil and criminal contempt "overlap" (at 538), that the purposes of civil and criminal contempt are "inextricably intermixed" (at 539) and used the expression "convert" (at 545) to describe a civil contempt which amounts to criminal contempt, noting that this is a reason why the same standard of proof applies to both civil and criminal contempt. McHugh J said at 545: In many cases of civil contempt, the proceedings may be brought for the purpose of coercing the contemnor as well as punishing that person … It would border on the absurd to have the punitive aspect of the contempt decided on the criminal standard and the coercive aspect decided on the civil standard. In other cases of civil contempt, an applicant may seek an order for committal simply to coerce the contemnor to comply with the order or judgment. However, after the proceedings have commenced, the applicant may become aware of the contemnor's inability to comply with the order and wish to have the contemnor punished. Without the consent and perhaps even with the consent of the contemnor … it would not be possible to convert proceedings commenced as coercive proceedings with the civil standard of proof into punitive proceedings with the criminal standard of proof … (Emphasis added.)
10. Similarly, in Bellerive Homes Pty Ltd v FW Projects Pty Ltd (2019) 106 NSWLR 479; [2019] NSWSC 193 at [86], N Adams J said that a civil contempt can be "converted" to a criminal contempt but only after a finding of civil contempt has been made.

Distinction in relation to appellate rights

1. Although the distinction between civil and criminal contempt has been much criticised (see [17] above), the distinction persists for relevant purposes, including appellate rights. Section 101(5) of the Supreme Court Act says that an appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court. Section 101(6) says that subs (5) does not confer on any person a right to appeal from a judgment or order of the Court in a Division in any proceedings that relate to criminal contempt, being a judgment or order by which the person charged with contempt is found not to have committed contempt. The focus of these provisions is "proceedings": Pang at [171] (Lindgren AJA, McColl JA agreeing).
2. The effect of these provisions is that an appeal is available in the case of acquittal (or a related order) of civil contempt, but not in the case of acquittal of criminal contempt. Thus, s 101(6) reflects the criminal law principle that there is no appeal from an acquittal: Pang at [71] (Beazley JA).
3. In Hearne v Street, Heydon, Hayne and Crennan JJ observed at [132] (Gleeson CJ agreeing at [2]), that s 101(6) of the Supreme Court Act assumes that there is a difference in relation to appellate rights, between civil and criminal contempt. The joint judgment adopted the dissenting view of Handley AJA in Street v Hearne (2007) 70 NSWLR 231; [2007] NSWCA 113 at [156]-[157], that the relevant distinction is between proceedings which are remedial or coercive on the one hand and those which are punitive on the other, observing that this distinction corresponds with the distinction between seeking to ensure compliance with the relevant obligation and seeking to punish past breaches of it. The joint judgment said at [133]: … the dissenting opinion of Handley AJA [was] 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. (Footnotes omitted.)
4. That the test of appealability focuses on the substantial character of the proceedings, not merely formal or incidental features, had been recognised much earlier by the Full Federal Court in Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 136-137 (Beaumont J, Lindgren and Lehane JJ agreeing).
5. The time for assessing the character of the contempt proceedings for the purpose of appellate rights is at the time of their commencement: Microsoft at 137B-C; Street v Hearne at [59] (Ipp JA) and [162] (Handley JA). In reaching that view, Beaumont J had regard to the reasons of McHugh J in Witham v Holloway at 545 (see [25] above) and considered any other approach as likely to encounter difficulties in its application.
6. In Hearne v Street, the joint judgment noted in footnote (156) that whether the only time relevant for assessing the character of the proceedings is the time of their commencement, or whether findings of fact by the primary judge are also relevant, was a question raised but did not need be answered in that case. Consistent with the temporal approach of the Court of Appeal in Street v Hearne, the joint judgment addressed the characterisation question at the time the contempt motion was filed (see [40] below).

Applying the test of appealability

1. Before addressing the facts in this case, it is of assistance to examine the factual circumstances in Microsoft and Hearne v Street which led to the conclusions in those cases that, for the purpose of appellate rights, the contempt proceedings were not punitive, and hence were civil.

Microsoft

1. Microsoft involved a claim to copyright in certain computer programmes owned by Microsoft, which had obtained injunctions restraining Mr Marks from reproducing and selling unauthorised copies. The proceedings for contempt for alleged breaches of both orders were dismissed. On appeal, Beaumont J (Lindgren and Lehane JJ agreeing), concluded at 136 that the appropriate test, as part of the characterisation exercise, was one of "substance" or "object". Thus, if the contempt proceedings were criminal in the sense that their "object" was to punish, no appeal was available.
2. Applying that test to the facts at the time the contempt proceedings were instituted, Beaumont J concluded at 137 that although some of the charges contained allegations of wilful and contumacious breach, Microsoft's substantial object should be viewed as remedial rather than punitive, and hence the proceedings were civil. His Honour continued at 137: In characterising the proceedings, it is material … to take into account … that the moving party was trading, and may be expected to continue to trade. This is consistent with Microsoft's substantial object … being viewed as remedial rather than punitive in character. This also underlines the significance of the proceedings to … Microsoft (ie a civil contempt) as distinct from the more general interest of the public in the due administration of justice (ie a criminal contempt).
3. As Handley AJA observed in Street v Hearne at [164], Microsoft was a clear case in which: … Microsoft obtained the injunctions to protect its business and copyrights, and had a continuing interest in those orders being obeyed. The contempt proceedings were not simply for the punishment of past breaches but were calculated to deter and prevent future breaches which would injure its business.
4. Handley AJA referred to other cases at [165], by way of example, which distinguished between civil and criminal contempt: In O'Shea v O'Shea and Parnell; Ex parte Tuohy (1890) 15 PD 59 at 62, Cotton LJ said that proceedings for civil contempt were really only a procedure to get something done in the action and the proceedings before the Court were for criminal contempt because their purpose (at 63) was "not to obtain the doing of anything for the petitioner's benefit". In Seaward v Paterson [1897] 1 Ch 545 at 555-556, Lindley LJ distinguished proceedings brought for the purpose of enforcing the order … for the benefit of the person who got it. In Phonographic Performance Ltd v Amusement Caterers (Peckham) Ltd [1964] Ch 195 at 199, Cross J, in a passage adopted by the majority in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (at 110), described proceedings for civil contempt as a form of civil execution.

Hearne v Street

1. Hearne v Street involved proceedings for contempt for alleged breach of an "implied" undertaking given by company directors not to use affidavits and expert reports served on the company in proceedings for any purpose not directly connected to the proceedings. The main proceedings had been brought by residents against the company as lessee and operator of the Luna Park amusement park relating to noise complaints. The directors had transmitted certain documents to others including a government minister in July 2005, in circumstances where the solicitors for the directors had earlier given an undertaking on their behalf on 20 April 2005 not to release any unread affidavits to the media or any other person not properly connected to the proceedings. The relief sought in the contempt motion included a finding of contempt and "such further or other orders as the court thinks fit".
2. The trial judge dismissed the notices of motion and statements of charge against the company directors, finding that the plaintiff/residents had not established the charges beyond reasonable doubt: Street v Luna Park Sydney Pty Ltd [2006] NSWSC 624 at [52]-[53]. On appeal, the company directors objected to the competency of the plaintiffs' appeal. The appellants were permitted to tender additional evidentiary material relating to the history of the proceedings that predated the commencement of the contempt proceedings. The majority, for different reasons, concluded that the contempt was civil (Street v Hearne, Ipp JA at [82], Basten JA at [130]). Handley JA, in dissent, concluded that the contempt was criminal.
3. The joint judgment of the High Court in Hearne v Street held at [134] that the better view of the characterisation of the proceedings was that of the majority in the Court of Appeal, in the light of the history as the respondent residents must have perceived it. The factual matters which were material to that conclusion included: 1. the nature of the breaches of the undertaking: relevantly, the contempt proceedings could reasonably be seen as having a deterrent purpose not achieved by the undertaking given by the company directors on 20 April 2005 not to release unread affidavits to any person not properly connected with the proceedings (at [136]); 2. the residents were entitled, on the strength of the correspondence as it stood, to infer that they were being treated somewhat evasively by the appellants, given that there was no denial, no explanation, no admission of error, no apology and no undertaking on behalf of the company directors to avoid repetition of the breach of the undertaking (at [137]); 3. the residents' legitimate interest in the subject matter of the undertaking: relevantly, a legitimate interest in relation to the use of documents being generated for the purposes of the main proceedings, which at the time when the contempt proceedings were instituted remained on foot; that legitimate interest was an interest in protecting the privacy of the affidavits and the statements they provided or procured others to provide (at [138]); and 4. the possibility of further or continuing breaches: there was a real possibility at the time when the contempt proceedings were instituted that, unless the residents had success in those proceedings, the lessee and those acting for it would again breach the obligations arising from either the express undertaking given on 20 April 2005 or from the "implied undertaking" consequential on the provision of the affidavits and statements in the main proceedings (at [139]).

The substantial character of the contempt proceedings in this case

1. The following factual matters are material when characterising the substantial character or object of the contempt proceedings brought by Mr Novelly.
2. First, given the nature of the breaches of the undertakings relating to Mr Novelly's use of the storeroom, and door access throughout the premises, the contempt proceedings could reasonably be seen as having a deterrent purpose not achieved by the undertakings of 24 November 2022, and were not simply for the punishment of past breaches of the undertakings. The proper inference is that the proceedings were brought to deter and prevent the breach of the undertakings which would detrimentally affect Mr Novelly's use and enjoyment of the premises, especially use of the storeroom and door access throughout the premises.
3. Second, Mr Novelly had a legitimate interest in obtaining use of the storeroom and keys to doors throughout the premises. That legitimate interest was an interest in obtaining and enjoying occupation and use of the whole of the leased premises, since Mr Novelly still resided and may be expected to continue to reside in the premises until the conclusion of the residential tenancy agreement, which had 18 months to run at the time of filing the contempt motion.
4. Third, given the dismissive attitude to timely compliance with the 24 November 2022 undertakings displayed by the respondents in their solicitor's correspondence prior to 13 January 2023, there was a real possibility at the time when the contempt proceedings were instituted that, unless Mr Novelly had success on that application, the respondents would continue to flout those undertakings. The substantial character of the motion seeking remedies for contempt was that, as a private individual, Mr Novelly was trying to coerce Tamqia and Ms Bolton into compliance with the undertakings of 24 November 2022 relating to his occupation and use of the premises.
5. Fourth, it could not be inferred from the relief sought in the contempt motion which included punishment by imprisonment or fine, that the proceedings were punitive. These remedies are equally available in respect of civil contempt: Morgan at 497-99; Witham v Holloway at 541. In addition, the motion sought relief by way of "further or other order as the Court thinks fit".
6. Fifth, contrary to the respondents' submission, events occurring after the institution of the contempt proceedings are not material to the characterisation of the proceedings for the purpose of appellate rights: Microsoft at 137; Street v Hearne at [59], [162]. For this reason, it is not to the point that Mr Wong on behalf of Mr Novelly caused a change to a number of locks on the three levels of the premises, including the lock to the storeroom on 4 July 2023 (principal judgment at [61]).
7. In the light of the history of the matter at the time of the institution of the contempt motion, I conclude that the proceedings were remedial or coercive, not punitive, and hence were civil for the purposes of s 101(6), Supreme Court Act. The objection to competency should be rejected.

Whether the proceedings were for criminal contempt only

1. The primary judge found at [115] and [131]: [115] … in my respectful opinion, where a statement of charge alleges criminal contempt by an express particularisation of contumacious conduct which is not expressed to be a further or alternative element of the charge, the charge must fail if that element is not made out. As a matter of fundamental procedural fairness in a universe of discourse where the penalty may include imprisonment or a substantial fine, the applicant cannot fall back on a "lesser" charge of civil contempt if the alleged criminal contempt has not been made out. For example, if only criminal contempt (contumelious conduct) has been particularised, the defendant is entitled to take (and will readily be assumed by the Court to have taken) significant forensic decisions on that basis, including whether or not to go into evidence. [131] … In the case at bar, the statements of charge expressly particularise the alleged breaches as being contumacious. Those, and only those, are the charges which the defendants were required to defend. Mr Novelly has failed to establish beyond reasonable doubt that the alleged breaches were contumacious. It would be a serious breach of procedural fairness to permit Mr Novelly, notwithstanding the express particularisation of contumacious conduct, to succeed on the basis of having only established civil contempts.
2. The parties diverged as to whether his Honour erred in characterising the statements of charge as being charges of criminal contempt only. Mr Novelly says that this finding contains two errors. First, contrary to his Honour's reasoning, contumacy is not an element of a charge of criminal contempt. In this regard, reference was made to the decision of the Victorian Court of Appeal in Grocon at [299]. Second, his Honour failed to consider the purpose of the contempt proceedings. The respondents seek to uphold his Honour's finding on the basis that the statements of charge accompanying the amended motion expressly pleaded that the respondents' conduct was contumacious, and that was the basis upon which the contempt proceedings were run.
3. It is important to keep in mind that the characterisation error of which Mr Novelly complains is not for the purpose of appellate rights, for which it is necessary to place the contempt proceedings in one category or the other at the time of the institution of the contempt proceedings, but rather, it is for the purpose of determining a pleading point.

Contumacy is not an element of the charge

1. The respondents submitted below that contumacy is an "element" of the offence of criminal contempt. They retreated from this position in this Court, and now accept that contumacy is not an "element" of the offence of criminal contempt when constituted by breach of court orders. That concession is consistent with the conclusion of the Victorian Court of Appeal in Grocon where the Court said at [299]-[300] (footnotes omitted): [299] Having analysed the various strands of the law of contempt to which we have referred, we consider the better view to be that, before X7 and Lee, contumacy was not an 'element' of the offence of criminal contempt constituted by breach of court orders. The preponderance of authority treated contumacious conduct in defiance of a court order as essentially a circumstance of aggravation, relevant only to penalty, and not as an element of the offence to be separately pleaded, and proved as a condition of liability. Treated as a circumstance of aggravation, and not an element of the offence, it was not necessary that it be pleaded within the statement of charge. [300] But if we are wrong about that, and contumacy should be viewed as an element of the offence, rather than an aggravating factor, that would not, of itself, avail the Union in this appeal. It has never been regarded as necessary, in order to formulate a valid criminal charge, that it specifically allege each and every element of the offence that is the subject of that charge.
2. It is not necessary to say anything about the view in Grocon describing contumacy as a circumstance of aggravation, and that it only arises at the penalty stage. It is sufficient to say that his Honour erred in finding that the allegations of contumacy elevated the charge in respect of each respondent to one of criminal contempt only.

The characterisation error and procedural fairness

1. There is force in Mr Novelly's complaint that the primary judge's attention seems to have been diverted from the character and purpose of the proceedings by his focus on the pleading point given the addition of the contumacy allegations in the statements of charge. By focusing on the "contumacy or defiance" allegations, the primary judge erred in several respects.
2. First, his Honour erred in treating contumacy as an element of the charge of criminal contempt. Second, his Honour did not address the question of the character and purpose of the proceedings. Third, in finding that it was material that the contumacy allegations in the statements of charge were not prefaced by the words "further or alternatively", his Honour erred in having regard to formal and incidental matters rather than the substance of the charge. His Honour also overlooked that the character or purpose of the proceedings stands apart from the nature or quality of the contemnor's conduct: Grocon at [157]. Fourth, his Honour overlooked the "double aspect" of the contempt proceedings. Here, the statements of charge were of "mixed character" and included allegations of contumacious breach, like the statements of charges in Microsoft (at 137) which contained allegations of wilful and contumacious breach. His Honour was not constrained by the allegations of contumacy from making a finding that the breaches of the undertakings were a civil contempt.
3. Further, contrary to the respondents' submission, the contempt motion was not run on the sole basis that the conduct was contumacious and hence, criminal. His Honour dealt with the contempt motion in two stages, with a separate hearing on liability preceding a hearing on penalty. In Grocon at [302], the Victorian Court of Appeal said of the obligation of procedural fairness in a two-stage hearing of a contempt motion: It is one thing to conclude that, before X7 and Lee, the state of the law was that contumacy need not be pleaded in a charge, and that it was a matter for determination if a contempt was established. It is another thing altogether to say, if contumacious conduct was to be asserted, that the moving party was under no obligation to put the alleged contemnor on notice of that matter at the outset. In our opinion, it should be concluded, in order to ensure that an alleged contemnor was accorded procedural fairness, that there was such an obligation. At least that was so where the moving party intended at the outset to press for such a finding at the penalty phase, if the contempt was found proved.
4. Here, Mr Novelly afforded the respondents procedural fairness by giving notice of the allegation that the breaches of the undertakings were contumacious. Mr Novelly expressly maintained a case of "at least" civil contempt if the contumacious allegations were not established. So much is plain from his written and oral submissions on the contempt motion.
5. In his opening written submissions, Mr Novelly submitted that the breaches of the undertakings given by the respondents to the Court were not technical breaches, and the undertakings were "deliberately not complied with". That was an allegation of civil contempt. The submission continued: The breach was at least a civil contempt but will be criminal if it involved "deliberate defiance or, as it is sometimes said, if it is contumacious": Witham v Holloway (1995) 183 CLR 525 at 530. The conduct of the defendants here was contumacious. (Emphasis added.)
6. It is tolerably clear that Mr Novelly was seeking a finding that the respondents' breaches of the undertakings amounted to "at least" a civil contempt and would amount to a criminal contempt if it was established beyond reasonable doubt that the conduct involved "a deliberate defiance" or "if it is contumacious". Having been put on notice of the "double aspect" of the contempt motion, the respondents' senior counsel indicated at the commencement of the hearing, that the respondents were "definitely not going into evidence".
7. That Mr Novelly put the case on alternative bases was repeated in his written closing submissions. After describing the proceedings as "necessarily civil", referring to Pang, the submission continued that "[i]f a criminal contempt is found that is a different matter" (emphasis in original). The "double aspect" of the contempt motion was also reflected in counsel's additional note dated 4 August 2023 referring to the contempt as contumacious, or "at the very least wilful" and not a technical contempt (being a reference to civil contempt): Here, the contempt is contumacious, at the very least wilful. The undertakings have still not been fully complied with and the coercive nature of orders is still in play. It is not a technical contempt ….
8. The respondents' counsel acknowledged below that he was not aware of any authority directly on point for his submission that it was not open to Mr Novelly to say that if he did not establish that the breaches of the undertakings were contumacious, he could retreat to a civil contempt. Nor did the respondents point to any such authority in this Court.

Conclusion

1. The contempt proceedings had a "double aspect". Mr Novelly sought a finding of "at least" civil contempt. He also sought a finding that the breaches of the 24 November 2022 undertakings were contumacious. The respondents' submission that the contempt proceedings were run on the sole basis that the respondents' conduct was contumacious cannot be accepted. The primary judge erred in finding that the contempt proceedings were criminal only.
2. Nor was there any procedural unfairness to the respondents in Mr Novelly contending that the breach of the undertakings of 24 November 2022 was "at least" wilful and hence a civil contempt, and if the breaches occurred with contumacy or wilful defiance, it would amount to a criminal contempt. No prejudice was identified by the respondents in having to meet contempt charges put that way. The finding by his Honour of procedural unfairness was also an error.

Orders

1. The appeal should be allowed. There is no reason why the costs in this Court should not follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.
2. As to the costs of the hearing below, these costs should be determined by the primary judge on the remitter when determining the issue of penalty.
3. I propose the following orders: 1. Appeal allowed. 2. Set aside orders (1) and (2) made by the primary judge on 8 September 2023, including the variation to order (2) made on 18 October 2023. 3. Remit the contempt proceedings to the primary judge to be determined in accordance with law. 4. The respondents to pay the appellant's costs in this Court. 5. The costs of the hearing below be determined by the primary judge on the remitter when determining the issue of penalty.
4. KIRK JA: I agree with the orders proposed by Gleeson JA for the reasons his Honour gives, together with the following reasons with respect to the issue as to the competency of the appeal.
5. The distinction long drawn between civil and criminal contempt has been described by the High Court, for good reason, in the following terms: theoretical; of an unsatisfactory nature; involving arbitrary classification; absurd in at least one respect; complex and artificial in another; in significant respects illusory; and one which overlooks the fact that the rationale underlying every exercise of the contempt power is to uphold and protect the effective administration of justice: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at 107-108; Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 531-533. Attempts to draw a strict distinction also assume, incorrectly, that the litigious world is neatly divided into two parts, civil and criminal: cf Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49 at [113]-[114].
6. The distinction is so troublesome - in an area already burdened with technicality - that the need to grapple with it is likely to constitute a further disincentive for any party to bring a contempt application. That is not to suggest that contempt applications should readily be brought. But remedies for contempt are one of the foundations of the effective exercise of judicial power. If "a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute": Mudginberri at 107, quoting Borrie and Lowe's Law of Contempt (1983, 2nd edn, Butterworths). Placing too many hurdles in the way of contempt proceedings tends to undermine the efficacy of the remedy and in that way may weaken the administration of justice.
7. The High Court said in Mudginberri that the distinction between civil and criminal contempt had been attended by some practical consequences, but that these had largely disappeared in more recent times (at 106). The differences have further decreased since that decision in 1986. The High Court has since held that: costs orders may be made even in cases of criminal contempt (Hinch v Attorney-General (Vic) (1987) 164 CLR 15; [1987] HCA 56 at 89-90); the criminal standard of proof applies even for civil contempt allegations (Witham); and contempt applications are not criminal proceedings and discovery may be ordered (Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21). Reflecting the latter point, contempt charges are not determined by a jury: Witham at 534; Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527; [2014] VSCA 261 at [134]. One remaining difference of note between civil and criminal contempt is that a conviction can be recorded for criminal but not civil contempt: Grocon at [173]-[178].
8. In this context it is unsurprising that McHugh J said in Witham that "[t]he case for abolishing the distinction between civil and criminal contempts is a strong one", adding that "it is a course of action that is open to [the High] Court having regard to its duty to rationalise the principles of the common law" (at 549). Whilst it is true that the distinction has been assumed by some legislative provisions, such as the one at issue here, courts and Parliaments could sensibly work out the continued operation of such provisions if the underlying common law notion was abolished. For example, some such provisions could be construed as continuing to give effect to that distinction which had previously been recognised by the common law. In any event, abolition is not a course that is open to this Court given that the distinction has been referred to and applied in many High Court cases.
9. Subsections 101(5) and (6) of the Supreme Court Act 1970 (NSW) are provisions which do assume the distinction. They provide as follows: (5) An appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court. (6) Subsection (5) does not confer on any person a right to appeal from a judgment or order of the Court in a Division in any proceedings that relate to criminal contempt, being a judgment or order by which the person charged with contempt is found not to have committed contempt.
10. These provisions must be understood in their historical context. In 1890 the English Court of Appeal held that no appeal lay from a determination of a charge of criminal contempt because of a statutory provision that no appeal could be brought from a "criminal cause or matter": O'Shea v O'Shea; Ex parte Tuohy (1890) 15 PD 59. Lindley LJ, for example, said that "[i]t is really an appeal from a summary conviction for a criminal offence" (at 64). In England the law was changed in 1960 so as to permit appeals from decisions involving criminal contempt: Administration of Justice Act 1960 (UK), s 13.
11. In this country a principle came to be recognised that "a statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly": Davern v Messel (1984) 155 CLR 21; [1984] HCA 34 at 32 (Gibbs CJ); see also Thompson v Mastertouch TV Service Pty Ltd (1978) 19 ALR 547. Mason and Brennan JJ noted in Davern that the main foundation for the principle had been said to be the principle against double jeopardy, and then noted that the "powerful considerations which made it unfair and unjust that a man should be prosecuted twice for the same offence seem to lose some of their force when an appeal is sought to be equated with a second prosecution" (at 55). However, their Honours considered that "the body of authority to which we have referred is altogether too strong to justify its overthrow" (ibid).
12. This principle came to be applied with respect to appeals from decisions dismissing a charge of criminal contempt. In Australian Building Construction Employees' & Builders Labourers' Federation v David Syme & Co (1982) 40 ALR 518 (the BLF case), in the Federal Court, Bowen CJ, Evatt and Deane JJ recognised that "proceedings for criminal contempt are, in some respects, sui generis" (at 522). Even so, they held that dismissal of a charge of criminal contempt after a hearing on the merits was "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" (ibid). That reasoning was followed by this Court in Wentworth v Rares (unreported, 13 December 1990), which was followed in turn in Director of Public Prosecutions v Chidiac (1991) 25 NSWLR 372.
13. Subsections 101(5) and (6) of the Supreme Court Act were introduced a few years later by the Courts Legislation Amendment Act 1996 (NSW). That Act enacted a range of provisions seeking to address contempt proceedings in various ways. There is nothing to suggest that subss 101(5) and (6) were intended to change the law that had developed to that point as to the unavailability of appeals from decisions dismissing charges of criminal contempt. That understanding is consistent with what was said by then Attorney General Jeff Shaw in his second reading speech (New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 October 1996, at 47): There is a common law principle that there is no right of appeal from an acquittal in criminal proceedings. However, section 5A(2) of the Criminal Appeal Act provides for the Crown to seek a review of a question of law in criminal proceedings resulting in an acquittal on the basis that the determination on appeal does not reverse the acquittal. This bill makes the same provisions in respect of proceedings for criminal contempt; the Attorney General will have the power to submit to the Court of Appeal any question of law arising out of proceedings in which a contemnor is found not to have committed contempt. This provision will apply to criminal contempt matters only and it will not affect or limit the existing rights of the parties in civil contempt proceedings to an appeal.
14. Given the reference to the "common law principle that there is no right of appeal from an acquittal", s 101(6) can be understood to be based on the same type of justification as was manifest in the BLF case and subsequently followed in this Court.
15. Yet the legal world has moved on. The force of the reasoning in the BLF case is now reduced in light of the High Court's subsequent clarification in Hinch and Boral that contempt proceedings are not criminal proceedings even when the charge is one of criminal contempt. Moreover, also subsequently to the BLF case, Mason and Brennan JJ said in Davern (at 52, citation omitted): The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury verdict of not guilty has been traditionally regarded as inviolate.
16. Gibbs CJ made a similar point at 37 (with Wilson and Dawson JJ agreeing at 65 and 70). It will be recalled that Lindley LJ in O'Shea likened a contempt decision to summary proceedings. As noted, contempt applications are not brought before juries. The general principle on which BLF and similar cases rely may thus be seen, from today's perspective, to have weakened foundations in its application to contempt.
17. Another related subsequent change also may be seen to weaken the reasoning in support of the view that dismissal of criminal contempt charges should not be capable of appeal. Since 2006, in this State, the DPP and Attorney General have been empowered to bring an appeal on a question of law from an acquittal by: a jury at the direction of the trial judge; a judge of the Supreme Court or District Court in criminal proceedings for an indictable offence tried by the judge without a jury; or by the Supreme Court or the Land and Environment Court in its summary jurisdiction: Crimes (Appeal and Review) Act 2001 (NSW), s 107. Given that an appeal can now be brought from even criminal trials on indictment tried without a jury - albeit limited to questions of law - it is difficult to see a strong policy reason for prohibiting appeals from determination by judges of criminal contempt charges in civil proceedings.
18. In this context, s 101(6) appears somewhat anachronistic. And there are good reasons why this Court should be able to hear appeals from decisions dismissing applications for contempt, whether or not those applications are classified as criminal. That is so not only because the distinction between civil and criminal contempt is so arbitrary and problematic, but also because all contempt allegations raise issues relating to the effective administration of justice, in which the justice system itself has an interest.
19. This Court must, of course, nevertheless give effect to the provision. But the circumstances outlined are relevant to how it is construed and applied. So, too, is recognition of the difficulty of distinguishing between civil and criminal contempt.
20. Two issues relevantly arise. How are "any proceedings that relate to criminal contempt" (to quote s 101(6)) to be identified? And at what stage or time is that to be assessed?
21. It is convenient to address the latter issue first. As Gleeson JA notes above, in Street v Hearne (2007) 70 NSWLR 231; [2007] NSWCA 113 both Ipp JA and Handley AJA held that the issue was to be determined as at the time the contempt proceedings were instituted (at [59(g)] and [162] respectively), following in that regard Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 137. On appeal to the High Court, the plurality in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 indicated that they did not need to determine the issue (at [133]). In their judgment they focused on the time the contempt application was made (see at [138]-[139]).
22. It may be argued that focusing on the time the proceeding was instituted, without regard to later developments, is somewhat formalistic and cuts against the direction that the distinction between civil and criminal contempt is to be assessed by reference to the "substantial character" of the application (to quote Hearne v Street at [133]). On the other hand, it may be that difficulties can arise on other approaches. In any event, it was not argued in this Court that the view reached in Microsoft and Street v Hearne was plainly wrong. This Court should thus follow its prior decision.
23. In some cases it may be that a focus on the time the contempt proceeding is instituted will not be sufficient. For example, a contempt application may be filed as against one party, but subsequently amended to include another party. At least as regards that second party, it is difficult to see why the characterisation exercise should focus upon when the application was filed as against just the first party. Arguably a similar issue arises if new and distinct allegations of contempt, focusing say on alleged breaches of different orders, are made as against the one party. However, these issues do not arise here and it is not necessary to consider them further.
24. As to the first issue, the words "that relate to" in s 101(6) of the Supreme Court Act involve connection and characterisation. Issues of degree thus arise. It might have been open to take an encompassing view such as to readily find that proceedings with any degree of criminal character fall within the limitation in sub-s (6). However, the cases that have addressed the issue have not given any particular focus to the text, with the partial exception of Basten JA in Street v Hearne at [130]. Rather, the cases have tended to continue to apply a characterisation approach which was arrived at prior to enactment of the provision.
25. That approach may reflect the fact that, as discussed, it does not appear that the provision was intended to change the law in this regard. Further, sub-s (6) must of course be construed in the context of sub-s (5), which affirms the right to appeal to this Court "from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court". Reading the two provisions together, it is reasonable to regard the Parliament as indicating that proceedings may "relate to" either civil or criminal contempt, and it is a matter of characterising them as one or the other. That understanding is consistent with the approach taken in the case law prior to the enactment of the provisions, under which it was seen as "necessary … to place the respondent's conduct in one category or the other": Chidiac at 376; see also Microsoft at 137.
26. This approach directs attention to the dominant character of the proceedings. The focus of attention is the nature of the proceedings for contempt: note Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [171] (Lindgren AJA).
27. The application of s 101(6) was at issue in Street v Hearne, and then on appeal to the High Court in Hearne v Street. As Gleeson JA has explained, Hayne, Heydon and Crennan JJ, with the agreement of Gleeson CJ, approved the test applied by members of this Court, being whether "'it clearly appears that the proceedings are remedial or coercive in nature' as distinct from being punitive" (at [133]). This distinction was said to correspond "with the distinction between seeking to ensure compliance with the relevant obligation and seeking to punish for past breaches of it" (ibid). This test was drawn from the plurality judgment in Witham, which said that such was the difference that could be identified between the categories "[a]t best" (at 532). Their Honours in Witham had then stated that "there are fundamental problems even with that approach" (ibid).
28. In many instances it will be clear that the contempt in question is criminal in nature, because some types of contempt allegation are inherently criminal: note Street v Hearne at [56] per Ipp JA and [126]-[127] per Basten JA. For example, "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": Witham at 530. By "arbitrary classification" some particular instances of disobedience to a court order are treated as criminal whether contumacious or not, such as orders for delivery up of a child or non-molestation orders: Mudginberri at 107. And there is the "absurd proposition" that "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": ibid at 108. Thus for certain categories of conduct the classification, arbitrary or not, is clear.
29. The key difficulty arises with cases involving disobedience of a court order (or an undertaking) where what would otherwise be a civil contempt will be classed as criminal contempt if characterised as contumacious. In such a case, as Gleeson JA explains, the allegation of contempt may have a double aspect. Whether the contempt is civil or criminal will only crystallise upon the court's finding as to whether or not any breach should be characterised as contumacious. Procedural fairness requires that a party who is alleging that the conduct may be contumacious and thus potentially criminal should put the other party on notice of that allegation: note Grocon at [302] and [308]. Typically that will and should be done when the contempt application against the contemnor is first brought. Complying with that obligation does not of itself mean that the proceedings should be characterised, for the purposes of s 101(6), as involving criminal contempt. Such a proceeding retains its uncertain, dual aspect. That understanding is consistent with the fact that in Hearne v Street the plurality downplayed the significance for characterisation purposes of the form of relief sought (at [133] and [140]).
30. Thus in such cases it remains necessary to characterise the proceeding taking account of any allegation that the conduct was contumacious, but in light of all the circumstances. Certain overlapping matters have been held to be relevant in assessing whether the proceedings should be characterised as remedial or coercive in nature as distinct from being punitive.
31. First, the identity of the party bringing the application for contempt is relevant. The "fact that the application for an order that contempt has been committed is made within the main action, and not by a stranger to the suit, would tend to show that the contempt is civil in nature": Street v Hearne at [59(d)] per Ipp JA; That reflects the principle that civil contempt proceedings can only be initiated by a party to the proceedings, whereas proceedings for criminal contempt may be initiated not only by a party but by the Attorney General or a court of its own motion: see eg Witham at 540 per McHugh J.
32. Secondly, an individual litigant pursuing breach of an order or undertaking in a proceeding may in general be presumed to be motivated by their self-interest, such that they may be taken to be seeking to coerce or remedy rather than to punish. That point is implicit in Beaumont J's emphasis that Microsoft was a trading entity which was pursuing its commercial interests as it perceived them: Microsoft at 137. Further, his Honour there referred to the significance of the fact that Microsoft "may be expected to continue to trade" (ibid), implying that even if a particular breach is no longer capable of remedy, the litigant may still be acting for a purpose directed to its self-interest rather than a punitive purpose. In other words, a purpose of deterrence can be regarded as remedial and coercive rather than as punitive in the relevant sense.
33. Ipp JA made that point expressly in Street v Hearne. His Honour said that a "finding of contempt that is likely to be coercive in regard to the defendant's future conduct would tend to show that the contempt is civil in nature" (at [59(e)]). And he stated that "important purposes can still be achieved in taking steps to deter persons from breaching the implied undertaking in the future" (at [66], see also [63]). The plurality in the High Court in Hearne v Street implicitly made a similar point in noting that when the contempt proceedings began "there was no reason to suppose that similar [contemptuous] attempts might not be made in future" (at [139]).
34. Thirdly, even so, the fact that a breach cannot be remedied might be a factor weighing against a characterisation of the proceedings as involving civil contempt: Street v Hearne at [59(f)]. But, as the discussion of the relevance of deterrence shows, that fact is by no means necessarily definitive. The issue of the time as at which the characterisation is assessed is also relevant here. As McHugh J noted in Witham, an applicant may bring the application for contempt so as to coerce the other party, but "after the proceedings have commenced, the applicant may become aware of the contemnor's inability to comply with the order" (at 545). Given a focus on the time at which the application was made, that later awareness would not be relevant to the characterisation exercise.
35. Fourthly, and also related to the point made about seeking to deter future breaches, the plurality's analysis in Hearne v Street took a broad view of the history of the proceedings and of the parties' interactions in undertaking the characterisation exercise (at [138]-[139]).
36. Taken together, these factors will tend to militate in favour of characterising a proceeding as involving a civil contempt for the purposes of s 101(6) where it is instituted by a party to proceedings with respect to breach of court orders or an undertaking. Presumptively, such a party will be acting in its self-interest for remedial or coercive and non-punitive purposes (in the relevant sense). And that may be so even if the particular breach cannot be remedied by the time the application for contempt is determined.
37. In this case, those considerations reinforce the conclusion reached by Gleeson JA at [41]-[47] that the proceedings should be characterised as civil and not criminal for the purposes of s 101(6) of the Supreme Court Act.

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