[8] The appellants' case related to entry onto areas marked on the plan as lying within the site marked "Tipperary Station Complex", an aircraft hangar and workshop, and the nearby area designated "air strip". The question that arose was whether the respondent was prohibited by the order from entering onto those areas.
[9] The ambiguity identified by the respondent was that the words in parenthesis might qualify only "the Sanctuary area" or might qualify both "the Sanctuary" and "the Sanctuary area". In the first case the words "the Sanctuary" were at large and not fixed in any way by description. If that be so, then it could not be shown that the places where the respondent allegedly breached the order occurred on an area on Tipperary Station outside "the Sanctuary". For the appellants it was put that the words in parenthesis qualified not only "the Sanctuary" but also "the Sanctuary area". The use of the words "those parts of Tipperary Station" and the word "or" in relation to roads led to the view that the word "and" between the words "the Sanctuary" and "the Sanctuary area" was intended to be conjunctive. If there was doubt about that the appellants contended that there was evidence available which would provide the matrix of facts surrounding the making of the consent order which would demonstrate that the construction put forward by the appellant was the true meaning of the words in question. In other words his Honour could look at the objective framework of facts within which the order came to be made.
[10] Because this type of proceeding is seen as being criminal in nature, the standard of proof required to establish contempt is that of beyond reasonable doubt (Witham v Holloway (1995) 183 CLR 525). That is so notwithstanding that the proceedings by which the charge is brought is an allegation of civil contempt arising from an allegation of failure to comply with an order or undertaking in civil proceedings. Civil procedural rules apply although to succeed on the charge, the criminal standard of proof must be attained.
[11] The issue upon a no case submission in contempt proceedings is whether the defendant could lawfully be convicted on the evidence, that is, whether there is some evidence with respect to each element of the charge, which, if accepted, would either prove the element directly or allow such an inference to be drawn. In deciding a no case submission the Judge, whether sitting alone or with a jury, should not make factual findings (Amalgamated Television Services v Marsden, Court of Criminal Appeal, New South Wales [2001] NSWCA 32; (2001) 122 A Crim R 166).
[12] However, whether the person ought to be convicted depends on the tribunal being satisfied beyond reasonable doubt on the whole of the evidence before it, including, that of the defendant, if any (May v O'Sullivan (1955)
[1955] HCA 38; 92 CLR 654 at p 658).
[13] The material upon which the appellants sought to rely before his Honour, and in respect of which no ruling as to admissibility was expressly made, included:
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that put forward by the manager of the appellants business at Tipperary Station. He asserted that there were within the boundaries of the Station, in the vicinity of the homestead complex, an area known as "the Sanctuary" or "the Sanctuary area" identified by a plan annexed to his affidavit, being the same plan as that attached to the consent order;
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slight reference by both counsel to a judgment in the Federal Court of Australia in proceedings between the appellants (plaintiffs) and the respondent's employer (defendant), and to what was described as an unsealed copy of that Court's order (also relied upon by the respondent in argument);
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evidence in an affidavit of the respondent, relied upon by the appellants, as to service of the order upon him and his understanding of the meaning of it.
[14] Objections were taken by the respondent to admissibility of much of the material upon various grounds, including that it was irrelevant, inadmissible as hearsay or contained expressions of opinion. Mr Reeves QC for the appellants responded to the objections and pressed the material with reference to the facts sought to be established by it, including by way of inference, as going to establishing the factual matrix in which the consent order to which the respondent was a party was made.
[15] On the interchanges between his Honour and Mr Reeves QC it is plain that his Honour felt himself bound by a majority view expressed by Windeyer and Owen JJ in Australian Consolidated Press v Morgan (1964) CLR 483 to look only at the order itself. If it was ambiguous, then the appellants must fail. It is to be inferred that his Honour was then of the view that the material was inadmissible because the law did not allow for a patent ambiguity to be overcome by reference to the matrix of facts at the time that it was made so as to establish its true meaning. After time for consideration his Honour adhered to that view.
[16] The appellant contends that his Honour erred in failing to consider the evidence put forward with a view to establishing the true meaning of the undertaking. The respondent supports his Honour's approach in simply looking at the words themselves.
[17] With respect, I gain little assistance from some of the cases referred to by his Honour and relied upon in argument before this Court because they were not decided in the setting presented here, that is, where evidence was sought to be relied upon as an aid to construction.
[18] Australian Consolidated Press v Morgan was concerned with the alleged breach of an undertaking not to publish "any gallup poll results in respect of which the plaintiffs or either of them have the copyright". Although there was evidence as to the events giving rise to the undertaking, including as to the conduct of polls under "the gallup method" and the reports compiled by that method for publication, Barwick CJ pointed out at p 490: