• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

1. Before the Full Court is a Special Case from the Magistrates Court of the Australian Capital Territory, which asks the following questions: (i) Whether contempt under s 307 of the Magistrates Court Act 1930 (ACT) is a “criminal offence” for the purpose of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act)? (ii) Whether, and by extension, the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) is enlivened and applies to the determination of sentence?

2. At conclusion of the hearing of the application, the Court ordered that each question be answered “inappropriate to answer”. Our reasons for so concluding are as follows.

Background

The proceedings in the Magistrates Court

3. By way of an Originating Application filed on 16 April 2025 and amended on 13 June 2025, the Registrar of the Magistrates Court (the Registrar) commenced proceedings against Mr Stephen Paul Maunsell for contempt in the face of, or in the hearing of, the court, contrary to s 307(1)(b) of the Magistrates Court Act. The Application alleged that Mr Maunsell had committed a contempt by, inter alia, wilfully insulting and seeking to denigrate or impugn the integrity of Magistrates during court hearings in February, June and September 2023.

4. In June 2025, Mr Maunsell admitted the conduct alleged and also admitted that that conduct amounted to a contempt of court contrary to s 307(1)(b) of the Magistrates Court Act. In June 2025, Mr Maunsell also formally apologised to the Court by way of an affidavit, which he was later cross-examined about.

5. In a judgment delivered on 24 July 2025, the Chief Magistrate found the contempt proved. However, noting Mr Maunsell had not adhered to the fulsome apology in his affidavit, her Honour found that the contempt had not been purged. Her Honour accordingly made a declaration that Mr Maunsell had committed a contempt of court and ordered that he was to be “punished for contempt of court in accordance with law”.

6. The proceedings were listed for sentence on 5 September 2025. On that occasion, the parties raised an issue as to whether s 108 of the Sentence Administration Act (which deals with breaches of good behaviour orders) applied to Mr Maunsell. Specifically, at the time of two of the contempts, Mr Maunsell was subject to a 6 month good behaviour order for an offence of contravening a family violence order. That good behaviour order contained a “core condition” under ss 85 and 86 of the Sentence Administration Act, which required that Mr Maunsell not commit an “offence … that is punishable by imprisonment” for the duration of the order. Counsel for the Registrar contended that the commission of the contempts breached this condition, and that the good behaviour order should be cancelled and Mr Maunsell resentenced. Counsel for Mr Maunsell contended that a contempt is not a “criminal offence” within the meaning of ss 85 and/or 86 of the Sentence Administration Act, and that the commission of the contempts did not breach the good behaviour order.

7. After brief discussion of relevant Supreme Court authority, the Chief Magistrate asked the parties whether a case ought to be stated for the consideration of the Supreme Court under s 267 of the Magistrates Court Act. Her Honour suggested that questions in the form outlined at [1] above might be appropriately stated for the Supreme Court’s consideration. Noting that such a case may only be stated on the application of a party, the Chief Magistrate adjourned the proceedings to allow the Registrar to consider whether to make that application.

8. On 15 September 2025, pursuant to orders made by the Chief Magistrate on that day, the Registrar filed an application in the Supreme Court for a Special Case seeking the opinion of the Supreme Court as to the questions extracted at [1] above.

9. The Special Case application was listed for directions in the Supreme Court before McCallum CJ on 11 November 2025. On that occasion, McCallum CJ directed that the application be referred to the Full Court for determination.

The proceedings before this Court

10. The referred proceedings were listed before this Court for hearing on 23 March 2026.

11. During the course of the oral hearing, the Court raised a number of difficulties with the questions referred with the parties. For example, the Court noted that whilst the first question asks whether a contempt under s 307 of the Magistrates Court Act is a “criminal offence” for the purpose of the Sentence Act, the phrase “criminal offence” does not appear in the Sentencing Act. Further, the Court noted that neither question draws in r 2506 of the Court Procedures Rules 2006 (ACT), which provides that where the contemnor is an individual, “the court may punish the individual by making an order that may be made under the Crimes (Sentencing) Act 2005”.

12. More importantly however, the Court also observed that neither question directly raises the issue which was live in the proceedings before the Chief Magistrate, namely whether the commission of a contempt breaches a core condition of a good behaviour order as provided by the Sentence Administration Act. Counsel for the Registrar informed the Court that this was the only question that was in issue between the parties in the proceedings at first instance.

13. Neither party was able to identify any power to amend the questions that had been referred. Counsel for the Registrar suggested that the proceedings could be remitted to a single justice of the Supreme Court, and that a different question could then be referred to the Court of Appeal under r 5833 of the Court Procedure Rules 2006. However, acknowledging the delay that such a procedure would occasion, both parties agreed that it would be appropriate for the Court to refuse to answer the questions stated, leaving the proceedings to be determined to finality in the Magistrates Court, with both parties retaining a right of appeal from the Magistrate’s decision.

Determination

14. There are numerous authorities which emphasise the importance of the careful framing of stated questions so as to ensure that the Court is not answering questions which are hypothetical or inappropriately abstract: Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [47]; X v McAllister [2021] WASCA 3; 57 WAR 187 at [43] and [45]; Mehmet v Carter [2018] NSWCA 305 at [2].

15. With respect to all involved in the proceedings below, the questions referred in the present proceedings were not well framed. Both questions were abstract in nature. Neither question directly raised the question of law which arose in the proceeding, namely, whether a contempt is an “offence” within the meaning of ss 85 and 86 of the Sentence Administration Act.

16. We appreciate that there are difficult questions of principle concerning the nature of contempt, and of the proper construction of the Sentencing Act, the Sentence Administration Act, the Magistrates Court Act and the Courts Procedure Rules which may require consideration in Mr Maunsell’s case. There is little authority in this jurisdiction addressing these issues.

17. One of the concerns which led the Chief Magistrate to suggest that a Special Case should be stated related to her Honour’s doubts about the correctness of the decision of the Supreme Court in Dong v Song (No 5) [2019] ACTSC 273. In Dong v Song (No 5) McWilliam AsJ (as her Honour then was) held that the Sentencing Act is applicable when determining the punishment for a contempt, at least where the Court is considering imposing a custodial sentence. In so holding, McWilliam AsJ drew support from a line of authority in NSW which held that the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to contempt proceedings: Dong v Song (No 5) at [23]. That line of authority has since been overruled by the New South Wales Court of Appeal: Dowling v Prothonotary of Supreme Court of NSW [2018] NSWCA 340; 99 NSWLR 229. On the other hand, however, it cannot be assumed that the analysis in Dowling applies equally in this jurisdiction. In particular, there is no equivalent in New South Wales to r 2506 of the Court Procedure Rules, which provides that where a contemnor is an individual, “the court may punish the individual by making an order that may be made under the Crimes (Sentencing) Act 2005”.

18. In these circumstances, the desire of the Chief Magistrate, and of the parties, to obtain authoritative guidance about the nature of contempt proceedings generally is understandable. However, as the authorities which warn against engaging in hypothetical or abstract disputes emphasise, there are real dangers in answering such questions. The efficient determination of a matter may be hindered if “poorly formulated questions themselves give rise to debate”: Jaken Properties Australia Pty Ltd v Naaman (No 2) [2023] NSWCA 254 at [18]. Further, there is a risk that the answers to such questions may not resolve controversies between the parties, or narrow the field of “litigious controversy”: see Ivanoff v Alto Scaffolding [2022] ACTSC 155 at [11] and Buckley v Bennell Design & Constructions Pty Ltd [1978] 140 CLR 1 at 7. See also Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust [2001] FCA 98; 109 FCR 488 at [148]-[160].

19. As noted above, neither of the referred questions directly raised the issue which was the subject of dispute between the parties in the proceedings below, namely whether Mr Maunsell breached his good behaviour order when he committed two of the contempts in the Magistrates Court. In those circumstances, as noted above, a question arose in the oral hearing before this Court as to whether the Court has power to amend a question that has been stated by the Magistrates Court under s 267.

20. Section 267 of the Magistrates Court Act does not confer a power to amend a question once it is stated by the Magistrates Court. The power to amend a Special Case in r 5807(1) of the Court Procedure Rules only applies “if it appears to the Supreme Court that the Special Case does not state the facts, and be accompanied by the documents, necessary to allow the Supreme Court to decide the questions raised by the special case or otherwise to hear and decide the proceeding on the special case”. There was no suggestion of any inadequacy in the facts or documents which accompanied the special case in the present proceedings.

21. In analogous applications in other jurisdictions, courts have been prepared in some decisions to reformulate questions presented for their determination (although it has been said that the court should be “slow” to do so): Tritton v Clarke [2018] NSWCCA 31 at [35]; Castlebar Holding v Riley [2005] NSWCCA 105; 138 LGERA 338 at [33]. These authorities do not discuss the source of the court’s power to amend or reformulate the questions presented. In other proceedings, whilst not amending or reformulating the question asked, courts have been prepared to answer such part(s) of the questions as properly arose for determination: Moriarty v Nye [2024] NSWCCA 116; 114 NSWLR 560 at [16]; X v McAllister at [46]; cf Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176 at [33], citing Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547 at [37].

22. In the present case, it was unnecessary to determine whether the Supreme Court has power to amend a question asked under s 267 of the Magistrates Court Act, nor was it necessary to determine whether any part of the present questions could properly be answered by this Court.

23. The parties’ written and oral submissions in this Court were addressed to the abstract questions stated in the Special Case (that is, the general application of the Sentencing Act and the Sentence Administration Act), and not the specific issue of whether the contempts constituted a breach of Mr Maunsell’s good behaviour order. In these circumstances, any amendment or reformulation of the questions for determination would have required an adjournment of the proceedings before this Court.

24. There is a need for expeditious conduct of proceedings in contempt cases. That need is particularly acute in the present case, which concerned contempts in the face of the court that occurred in 2023. In those circumstances, the special case procedure, which necessarily further delayed the final resolution of the proceedings was, respectfully, not appropriate. The better course would have been for Mr Maunsell to be sentenced in the Magistrates Court, leaving both parties (Mr Maunsell and the Registrar) with a right of appeal in the event that either considered that a wrong decision had been made with respect to any finding made in the sentencing proceedings, including whether the commission of the contempt constituted a breach of the good behaviour order.

25. We were of the view that that was the course that should now be adopted. As both parties agreed with that course, the Court answered both questions “inappropriate to answer” at the conclusion of the hearing of the Special Case.

Orders

26. For the above reasons, the questions were answered as follows: (i) Whether contempt under s 307 of the Magistrates Court Act 1930 (ACT) is a criminal offence for the purpose of the Crimes (Sentencing) Act 2005 (ACT) (Sentence Act)? Answer: Inappropriate to answer. (ii) Whether, by extension, the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) is enlivened and applies to the determination of sentence? Answer: Inappropriate to answer.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: MP Date: 17 April 2026