13 The judgment of the High Court of Australia in the current proceedings expounded - as was necessary to found the Court of Appeal's jurisdiction to entertain the appeal - the civil nature of these contempt proceedings, and their primarily coercive purpose.
14 So far as the coercive purpose is concerned, the contempt has been purged by the apology and undertaking to the Court tendered by the contemnor. Moreover, the substantive proceedings are now at an end, in circumstances where all outstanding issues have now been resolved. There is thus no further potential for misuse of the material produced in these proceedings in an inappropriate manner, whether to influence the outcome or otherwise. The High Court emphasised that the primary purpose of these proceedings was to secure compliance with the obligation, rather than to punish for past breaches of it; that primary purpose has therefore now been secured.
15 In what I say in these observations, I would not want it to be thought that the importance and impact of the contempt that occurred is to be trivialised; it is not. It involved a serious misuse of information obtained on compulsory process, which ought not to have been made publicly available when it was, in a way and for a purpose which, in effect, resulted in the plaintiffs' case, as it then was, being defeated by legislative Act. That is, to my mind, a very serious matter indeed. This is a case in which the misuse of the information has had grave adverse consequences for the other parties.
16 In Wood v Staunton (No 5) (1996) 86 A Crim R 183, Dunford J set out a list of ten factors to be considered as relevant to proper punishment for contempt, which are now commonly considered by judges sentencing for contempt [see for example, Principal Registrar of Supreme Court of New South Wales v Jando [2001] NSWSC 969, (2001) 53 NSWLR 527, 532-535 [17]-[35] (Studdert J); Commissioner of Fair Trading v Partridge [2006] NSWSC 478, [22] (Bell J), Principal Registrar of Supreme Court of NSW v Thanh Vu Tran (2006) 166 ACrimR 393 [34]-[35], [2006] NSWSC 1183 (Buddin J); R v Razzak (2006) 166 ACrimR 132, [2006] NSWSC 1366, [43] (Johnson J); see also Anderson v Hassett (No 2) [2007] NSWSC 1444, [6]]. Not all of those factors are relevant in the present context, as they were largely developed in the context of contempts committed by witnesses who refuse to give evidence or answer questions. Nonetheless, they remain a useful guide. Those factors are, first, the seriousness of the contempt proved; secondly, whether the contemnor was aware of the consequence to himself or herself of what he or she did; thirdly, the actual consequences of the contempt on the relevant trial or inquiry; fourthly, if the contempt was committed in the context of serious crime; fifthly, the reason for the contempt; sixthly, whether the contemnor has received any benefit by indicating an intention to give evidence; seventhly, whether there has been any apology or public expression of contrition; eighthly, the character and antecedents of the contemnor; ninthly, general and personal deterrence; and tenthly, the denunciation of the contempt.
17 In the context of this case, I do not propose to deal with each of those ten items seriatim, but I have considered each of them so far as they are relevant. It will be evident from what I have already said that this is a contempt which, having regard to its actual consequences on the relevant trial or inquiry, cannot be regarded as a trivial one. It was one of moderate gravity. On the other hand, the respondents were unaware that their conduct was contemptuous when they engaged in it. In circumstances where their defence succeeded at first instance, and the decision of the Court of Appeal was a majority one, with a significant dissent from Handley AJA, and the High Court granted special leave and ultimately, it required the High Court of Australia to settle that their conduct was indeed contemptuous, it cannot be said that they were unreasonable in not realising that their conduct was contemptuous at the time. That, I think, is a highly significant matter.
18 Next, once it was established that their conduct was contemptuous, they did proffer the apology and undertaking to which I have referred.
19 Next, the plaintiff does not now press for a penalty. In the context of a civil contempt - although the respondents of course remain answerable, not just to the plaintiffs but to the Court, and it has not been suggested that the parties can remove the Court's discretion in this respect by an agreement between them - nonetheless, when all issues between the parties have been settled, the attitude of the prosecutor is, I think, a significant matter for the Court to take into account. After all, the contempt proceedings arose in the context of the civil dispute between the parties, and if they had been able to resolve the whole of their dispute, the Court should not be over enthusiastic to perpetuate an aspect of it.
20 Next, the respondents have, in any event, been ordered, by the consent orders made earlier today, to pay the costs of the contempt proceedings at first instance before Gzell J. (They have previously been ordered to pay the costs of the appellate proceedings).
21 The Court's discretion and the range of punitive orders available to it in this context is wide. It extends from making no order at all beyond the judgment of contempt given by the Court of Appeal, through making adverse costs orders, to imposing fines, terms of imprisonment, and even indefinite imprisonment. The imposition of a penalty by way of no more than an order for costs, sometimes on an indemnity basis, is not an uncommon outcome in civil contempt proceedings when the coercive purpose has been achieved. Such an order has already been made. In my view, having regard to the other factors to which I have referred, it sufficiently meets the need for a sanction of the contempt found by the Court of Appeal.
22 Accordingly, other than the costs order in respect of the contempt proceedings which I made this morning, there will otherwise be no further order in the contempt proceedings.
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