Witham v Holloway

(d) The costs of the earlier hearing before Hodgson J to abide the result of the rehearing.

11 October 1995 Brennan, Deane, Toohey and Gaudron JJ.

This is an appeal from a unanimous decision of the Court of Appeal of the Supreme Court of New South Wales dismissing an appeal from an order of Hodgson J committing John Allan Witham (the appellant) to prison for one month for contempt of court. His Honour found the appellant guilty of contempt in that he failed to comply with orders made by Powell J in proceedings brought against him and others by John William Holloway (the respondent) as Commissioner for Consumer Affairs (the substantive proceedings). In those proceedings [1] the respondent sought injunctions restraining the appellant from carrying on any house removal business and also sought damages on behalf of persons who had suffered loss as a result of his business activities.

1. The proceedings were brought under ss 65 and 72 of the Fair Trading Act 1987 NSW.

As a preliminary step in the substantive proceedings, the respondent obtained an order that the appellant swear and file "a full and sufficient Affidavit setting out details of all his property in Australia of the value or values thereof, and of the location of the same and of any document or documents evidencing title to the same" (the disclosure order). Thereafter, he secured an order based, at least to some extent, on what was disclosed in the affidavit, restraining the appellant from "dealing with, or disposing of any of his property within Australia in such a way as to reduce the value thereof below the sum of $200,000" (the Mareva injunction). Judgment was eventually entered against the appellant in the substantive proceedings and, later, when it appeared that he had no assets to satisfy the judgment debt, the respondent brought proceedings for contempt, alleging breach of the disclosure order and, also, the Mareva injunction. Hodgson J found that there had been a breach of both orders.

The finding that the appellant breached the disclosure order was based on the understatement of his liabilities and the failure to disclose his ownership of a property which he had purchased about three months before swearing the affidavit. Overall, the affidavit indicated that the appellant was in a better financial position than, in fact, he was. The appellant gave evidence that the affidavit had been prepared by his solicitor and that he had not checked its contents carefully. In that context, his Honour held that he was "satisfied on the balance of probabilities that the defendant showed at least recklessness in swearing the affidavit".

In finding that there was a breach of the Mareva injunction, his Honour interpreted it as "forbid[ding] any dealing with and/or disposal of property which reduces the value of assets so that the reduced value is less than $200,000". As the appellant had dealt with his assets and, as it eventually transpired, his assets were much less than $200,000, there was on this view a clear breach of the injunction. However, in case he was wrong on that approach, his Honour also held that, at the time of swearing the affidavit, the net worth of the appellant's assets was "around $230,000" and that at least one dealing, which was "somewhat speculative", had the effect of reducing his assets below $200,000. In making that finding, his Honour acknowledged that "[i]t might in some circumstances be possible to say that a loss resulting from a dealing with property was so extraordinary and unforeseeable that it could not be regarded as being caused by the dealing" but held that that was not so in this case.

Before making the findings set out above, Hodgson J indicated that he was dealing, in the case of each order, with a civil contempt, "in the sense of a breach of [a court] order". And he stated that "in New South Wales the law is that, in a case of wholly civil contempt, the civil standard of proof applies, but with the required degree of satisfaction perhaps varying according to the gravity of the facts to be proved". In this regard, his Honour was following the decision of the New South Wales Court of Appeal in New South Wales Egg Corporation v Peek [2] . In that case the Court of Appeal adopted the view taken by McLelland J in an earlier case, Jendell Australia Pty Ltd v Kesby [3] . It will later be necessary to refer to the decision in Jendell in some detail.

1. (1987) 10 NSWLR 72 at 81-83. 2. [1983] 1 NSWLR 127.

As already indicated, Hodgson J expressly found recklessness with respect to the affidavit "on the balance of probabilities". There was no statement as to the standard of proof applied on the charge that the appellant had not complied with the Mareva injunction. Moreover, it is not readily apparent, having regard to its terms, that the finding of breach could differ depending on whether the civil or criminal standard were applied. When questioned on this matter, counsel for the appellant indicated that there were, or might well be, questions as to the extent to which events were within the control of the applicant. This was not challenged by counsel for the respondent and seems to be implicit in the alternative approach adopted by Hodgson J. That being so, and given his Honour's specific ruling on the standard of proof, it is appropriate to proceed on the basis that the finding with respect to the Mareva injunction was made on the balance of probabilities and that the decision might have been different had the criminal standard been applied.

In his appeal to the Court of Appeal, it was argued for the appellant, as it was in this Court, that the complaint that he failed to comply with the orders made by Powell J was a complaint of criminal, not civil contempt, but, even if that was not so, the complaint should have been proved beyond reasonable doubt rather than on the balance of probabilities. The Court of Appeal proceeded on the basis that both issues were concluded against the appellant by its earlier decision in New South Wales Egg Corporation v Peek , which it declined to review, and, thus, dismissed the appeal.

In this Court it was put on behalf of the appellant that the decision in New South Wales Egg Corporation v Peek is wrong in principle. On the other hand, it was contended for the respondent that, although it is not always easy to distinguish between criminal and civil contempt and although there are some anomalies associated with the distinction, neither the distinction nor the allocation of different standards of proof results in practical difficulty.

In this country, the question whether the civil or criminal standard applies when it is alleged that a person has failed to comply with an order made or undertaking given in civil proceedings has fallen for direct decision only in comparatively recent times. Perhaps that is because, ordinarily, failure is so apparent that the answer does not vary according to the standard of proof required. The question was considered in the United Kingdom, in In re Bramblevale Ltd [4] , and it was held that the criminal standard applied. Bramblevale was followed in subsequent cases in the United Kingdom [5] , in Canada [6] , and, also, in this country [7] . However it appears that doubts developed in this country in consequence of judicial statements that did not clearly endorse the need for proof beyond reasonable doubt. Thus, for example, it was said by the NSW Court of Appeal in Law Society of NSW v Kinsella [8] , in relation to a civil contempt, that "[w]hatever may be the precise burden of proof that burden has been satisfied" [9] . Given the doubts and given also that there had been a concession by counsel in Bramblevale that the criminal standard applied [10] , it was held in Jendell that, in the light of the distinction between civil and criminal contempt, the better view was that, in the case of a civil contempt, the civil standard applies but "that "the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved" " [11] . It was also acknowledged that " "the gravity of the consequence flowing from a particular finding" is one consideration which must affect the degree of satisfaction" [12] . The decision in Jendell has since been followed in a number of Australian cases [13] and, of course, adopted as correct in New South Wales Egg Corporation.

1. [1970] Ch 128. 2. See, eg, Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67; Heatons Transport v Transport and General Workers' Union [1973] AC 15; Dean v Dean [1987] FCR (UK) 96; Garvin v Domus Publishing Ltd [1989] Ch 335. 3. See, eg, Re Sheppard and Sheppard (1976) 12 OR (2d) 4 (CA); Nemo Foods Ltd v Remi Rivet Fast Foods Ltd (1982) 64 CPR (2d) 125 (Ont HC); Royal Hotel Ltd v Saint John (City) (No 3) (1982) 42 NBR (2d) 690 (QB); Northwest Territories Public Service Association v Commissioner of the Northwest Territories [1979] 3 WWR 513 (NWT); Canada Inc v Apple Computer Inc (1988) 20 CPR (3d) 289 (Fed CA); Iron Ore Co of Canada v United Steel Workers of America (1979) 20 Nfld & PEIR 27; Forfar v Iron Ore Co of Canada (1979) 28 NR 339 (SCC); Vance v Vance (1984) 50 BCLR 373 (SC). 4. See Clifford v Middleton [1974] VR 737; In Marriage of Sahari (1976) 25 FLR 475 11 ALR 679; 2 Fam LR 11,126; [1976] FLC 75,396; see also Fullerton v Gardiner (unreported; Supreme Court of NSW; 31 October 1978); Commissioner of Water Resources v Federated Engine Drivers' & Firemen's Association of Australasia Qld Branch [1988] 2 Qd R 385. 5. Unreported; 2 July 1980. 6. Law Society of NSW v Kinsella (unreported; NSW Court of Appeal; 2 July 1980) at 6. See also Sunibrite Products (Aust) Pty Ltd v Jabuna Pty Ltd (1980) 47 FLR 73 at 77, where Bowen CJ said that: "In cases of criminal contempt, proof is required beyond reasonable doubt. In cases of civil contempt proof of the utmost cogency is also required." and Clifford v Middleton [1974] VR 737 at 739, where Kaye J said "that the utmost strictness in proof is demanded". 7. Bramblevale [1970] Ch 128 at 134. 8. Jendell [1983] 1 NSWLR 127 at 136-137, citing Rejfek v McElroy (1965) 112 CLR 517 at 521. 9. Jendell [1983] 1 NSWLR 127 at 137, citing Helton v Allen (1940) 63 CLR 691 at 712. 10. See Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1985) 5 FCR 169 at 178, 183; Ellendale Pty Ltd v Graham Matthews Pty Ltd (1986) 11 FCR 347; 65 ALR 275 at 280-281; Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110 at 116-117; Re Kerrison; Ex parte Official Trustee in Bankruptcy (1990) 25 FCR 233 at 238.

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 [14] . As well, in the case of some orders, described in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [15] 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 [16] . And it has been held that breach of a court order by a solicitor or by a liquidator [17] is also a criminal contempt.

1. See Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 108, per Gibbs CJ, Mason, Wilson and Deane JJ. 2. (1986) 161 CLR 98 at 107. 3. Mudginberri (1986) 161 CLR 98 at 107 and the cases there cited. 4. As to a solicitor, see In re Freston (1883) 11 QBD 545; as to a liquidator see In re Grantham Wholesale Fruit, Vegetable and Potato Merchants Ltd [1972] 1 WLR 559. See also Mudginberri (1986) 161 CLR 98 at 108, where it is suggested that this is so because the proceedings are by way of "disciplinary action against officers of the court".

The distinction between civil and criminal contempt is longstanding [18] . It is a distinction that has been recognised in this Court [19] . However, it does seem that the term "civil contempt" has not always been used with enthusiasm. In Australian Consolidated Press Ltd v Morgan, Barwick CJ referred to "civil contempt" but also described it as "a contempt in procedure" [20] and Windeyer J identified the complaint in that case as a "complaint of a contempt in procedure, a "civil contempt" as it is sometimes called" [21] . The distinction was described as being of an "unsatisfactory nature" in Mudginberri [22] . And it was said in that case that there is "much to be said for the view that all contempts should be punished as if they are quasi-criminal in character" [23] . Later, in Hinch v Attorney-General (Vict), Deane J referred to various anomalies associated with the distinction and expressed the view that proceedings which can result in a fine or imprisonment in "consequence of a finding of contempt must realistically be seen as essentially criminal in nature" [24] . And that was so, in his Honour's view, whether the proceedings were "brought by the Attorney-General or some other official acting in the public interest or by a private individual for the indirect or coercive enforcement of a civil order" [25] .

1. See, eg, Wellesley v Duke of Beaufort (1831) 2 Russ & M 639 at 665, 668 [39 ER 538 at 548, 549]; In re Freston (1883) 11 QBD 545; O'Shea v O'Shea and Parnell (1890) 15 PD 59 at 62-63; Seaward v Paterson [1897] 1 Ch 545 at 556. 2. See Mudginberri (1986) 161 CLR 98 at 106 and the cases there cited, esp Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 489, 494, 497-500. 3. Australian Consolidated Press (1965) 112 CLR 483 at 489. 4. Australian Consolidated Press (1965) 112 CLR 483 at 494. 5. (1986) 161 CLR 98 at 107, per Gibbs CJ, Mason, Wilson and Deane JJ. See also Jennison v Baker [1972] 2 QB 52 at 61. 6. Mudginberri (1986) 161 CLR 98 at 109. 7. Hinch (1987) 164 CLR 15 at 49. 8. Hinch (1987) 164 CLR 15 at 49

The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process [26] . Thus, in Australian Consolidated Press Ltd v Morgan, Windeyer J described proceedings for civil contempt as being "used primarily to compel obedience rather than to punish disobedience" [27] . His Honour illustrated this by pointing out [28] :

When contempt lies in disobedience of a court's order to do something, the contemnor may be imprisoned, until by doing what was ordered he purges his contempt. When contempt lies in disobedience of an injunction not to do something, the contemnor is ordinarily permitted to purge his contempt by an apology to the court, making reparation for the damage done by the forbidden act and paying the costs as between solicitor and client. Having made these observations, his Honour then described the nature of the processes used to enforce orders as "primarily coercive or remedial rather than punitive" [29] . The same distinction is maintained in the United States [30] where the notion of "coercive or remedial" proceedings is often expressed in the metaphor that those in breach of an order or undertaking "carry the keys of their prison in their own pockets" [31] . 1. See, eg, Mudginberri (1986) 161 CLR 98 at 106; Jendell [1983] 1 NSWLR 127 at 133. 2. Australian Consolidated Press (1965) 112 CLR 483 at 498. 3. Australian Consolidated Press (1965) 112 CLR 483 at 498-499. 4. Australian Consolidated Press (1965) 112 CLR 483 at 499. 5. Gompers v Bucks Stove & Range Co (1911) 221 US 418 at 441-444. 6. In re Nevitt (1902) 117 Fed Rep 448 at 461.

The distinction between proceedings in the public interest and those that are coercive or remedial in the interest of the private individual is not, in our view, a satisfactory basis for the distinction usually made between civil and criminal contempt. Even allowing for those orders which, if breached, involve criminal contempt and for contumacious breach, the distinction does not support the general proposition that breach of an order in civil proceedings is a civil contempt. That is because there are some circumstances in which the breach simply cannot be remedied. That can be illustrated by reference to the orders in this case. The order that the appellant not deal with his assets in a way that reduced their value below $200,000 could not be remedied once his assets were reduced in such a way that he was in no position to raise that, or any lesser sum of money, to satisfy the judgment debt. And when the contempt proceedings were commenced, ie after judgment had been entered and the appellant's total inability to satisfy the judgment ascertained, the purpose of the disclosure order could no longer be achieved.

At best, the distinction between proceedings in the public interest and proceedings which are coercive or remedial in the interest of the private individual supports a separate category of civil contempt to the extent that it clearly appears that the proceedings are remedial or coercive in nature. If that approach were to be adopted, it would follow that the contempt alleged in this case should have been classified as criminal, not civil, with the consequence the criminal standard of proof should have been applied. However, in our view, there are fundamental problems even with that approach.

One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.

Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.

Moreover, there is considerable difficulty with the notion that, in some cases, the purpose or object of the proceedings is punitive and, in others, the purpose or object is remedial or coercive. It should at once be noted that the purpose of the proceedings is not the same as the purpose or object of the individual bringing the proceedings and it is well recognised that, notwithstanding that proceedings are brought by an individual to secure the benefit of an order or undertaking, a "penal or disciplinary jurisdiction" [32] may also be called into play. It has been held that the "penal or disciplinary" jurisdiction may be exercised even when the parties have settled their differences and do not wish to proceed further. Thus, in Canadian Transport v Alsbury [33] , Sidney Smith JA rejected the submission that settlement precluded further proceedings saying [34] :

Are we to be told that after a party has defied a court, the court can still do nothing because the other party is willing to swallow the contempt? Nothing short of the clearest authority would convince me that that is the law; and there is no such authority and no such law. And as already indicated, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect. Indeed, if the person in breach refuses to remedy the position, as is not unknown [35] , their only effect will be the vindication of judicial authority. Given that purpose or object cannot readily be disentangled from effect and given, also, that a penal or disciplinary jurisdiction may be called into play in proceedings alleging breach of an order or undertaking, it is necessary to acknowledge, as it was in Mudginberri [36] , that punitive and remedial objects are, in the words of Salmon LJ "inextricably intermixed" [37] . 1. Mudginberri (1986) 161 CLR 98 at 108. Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 489, per Barwick CJ; at 500, per Windeyer J. 2. (1952) 7 WWR (NS) 49. The decision was confirmed by the Canadian Supreme Court sub nom Poje v Attorney General (British Columbia) [1953] 1 SCR 516. 3. Canadian Transport (1952) 7 WWR (NS) 49 at 75. 4. See, eg, In re Davies (1888) 21 QBD 236. 5. (1986) 161 CLR 98 at 108. 6. Jennison v Baker [1972] 2 QB 52 at 64.

Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as "punitive" and others as "remedial or coercive". Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking.

The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt "must realistically be seen as criminal in nature" [38] . The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise.

It was submitted by counsel for the appellant that, if contempt proceedings are essentially criminal in nature, there is no power to order a retrial of the charges against the appellant. It was put that, so far as New South Wales is concerned, the only power to order the retrial of a criminal matter is to be found in s 8 of the Criminal Appeal Act 1912 NSW and as this was not an appeal under that Act, there could be no order for retrial. However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. There is no basis, in our view, for importing into the law of contempt the nineteenth century rules which allowed a verdict of guilty, given in a jury trial, to be quashed on appeal, but did not permit of an order for retrial. Moreover, the issue, so far as contempt is concerned, is not whether there should be a retrial, but whether there should be a rehearing.

It was also put that, as a matter of discretion, no order should be made remitting the matter for rehearing. Counsel did not identify the discretion which he invoked. It is sufficient answer to this submission to say that if it is established that there was a failure to comply with the orders made by Powell J, not only can that failure not now be remedied, but it was a failure involving a serious interference with the administration of justice. That it was an interference with the administration of justice appears from the nature of the orders involved. The purpose of a Mareva injunction is "to prevent the abuse or frustration of [a court's] process in relation to matters coming within its jurisdiction" [39] . And the same is necessarily true of an order that is ancillary to a Mareva injunction, as was the discovery order made in this case. If there is a discretion, the appropriate order in the circumstances is for the matter to be remitted for rehearing.

1. Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623, per Deane J. See also Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 321, per Gleeson CJ.

The appeal should be allowed with costs. The order of the Court of Appeal should be set aside and, in lieu thereof, it should be ordered that the appeal to that court be allowed with costs, the order of Hodgson J set aside and the matter remitted to the Equity Division of the Supreme Court of New South Wales for rehearing, the costs of the earlier hearing to abide the result of the latter.

The question in this appeal is whether the standard of proof required in proceedings for civil contempt is the balance of probabilities, proof beyond reasonable doubt or some intermediate standard. In my opinion, all civil as well as criminal contempts must be proved beyond reasonable doubt.

The appeal is brought against an order of the Court of Appeal of New South Wales dismissing an appeal against an order which committed the appellant to prison for one month for contempt of court. The order committing the appellant was made in the Equity Division of the Supreme Court of New South Wales by Hodgson J.

The appellant, John Allan Witham, operated a business under the name "Cosmopolitan House Movers". In 1989, the respondent, the Commissioner for Consumer Affairs in New South Wales, commenced an action against the appellant in the Supreme Court for injunctions to restrain him from carrying on his house removal business. The Commissioner also sought an order for damages against the appellant on behalf of persons who had suffered loss as the result of the appellant's conduct of his business. In the course of the proceedings, Powell J ordered that the appellant be restrained until 14 November 1989 from "dealing with, or disposing of any of his property within Australia in such a way as to reduce the value thereof below the sum of $200,000.00". His Honour also ordered that the appellant swear and file "a full and sufficient Affidavit setting out details of all his property in Australia of the value or values thereof, and of the location of the same and of any document or documents evidencing title to the same". In purported compliance with this order, the appellant swore an affidavit dated 30 October 1989 which was filed on 14 November 1989. On 14 November 1989, McLelland J varied the injunction and restrained the appellant up to and including 12 December 1989 from "dealing with, or disposing of any of his property within Australia in such a way as to reduce the value of his assets (excluding any amounts alleged to be due from persons named ) below the sum of $200,000.00". On 17 November 1989, McLelland J discharged these orders but his Honour made other orders which included an order restraining the defendant up to and including 12 December 1989 from "dealing with, or disposing of any of his property within Australia in such a way as to reduce the value thereof below the sum of $A200,000.00 excluding sundry debts referred to in the second schedule of the affidavit of the first defendant sworn 30th October 1989". On 12 December 1989 the orders were extended by consent to 27 February 1990. The injunction was subsequently continued on two further occasions until 20 April 1990 when it was continued until further order.

On 4 October 1990, Lee J gave judgment in the action brought by the Commissioner against the appellant. His Honour ordered the appellant to pay the sum of $374,624.52 as damages. During the hearing, the appellant told his Honour that his assets were practically nil. As the result of this statement, the Commissioner subsequently instituted proceedings against the appellant for contempt of court. The Commissioner alleged that the appellant was guilty of two contempts: (1) in his affidavit of 30 October 1989 sworn and filed pursuant to Powell J's order, the appellant had knowingly or recklessly presented a false or misleading statement of his assets and liabilities; (2) in breach of the injunction made on 19 October 1989 as subsequently varied and continued, the appellant had dealt with and/or disposed of property in Australia so as to reduce the value of his assets below the sum of $200,000.

The contempt action was heard in the Equity Division by Hodgson J who held that the proceedings were civil proceedings for contempt [40] and that in New South Wales, as the result of the decision of the Court of Appeal inNew South Wales Egg Corporation vPeek [41] , an action for civil contempt had to be proved according to the civil standard of proof but with "the required degree of satisfaction perhaps varying according to the gravity of the facts to be proved". Applying this standard, his Honour found that the charges had been proved. His Honour made no express finding that the appellant's conduct was contumacious, defiant or a "wilful disobedience" of the orders binding the appellant. It is clear, however, that his Honour impliedly found that the breaches were "wilful" [42] . In a subsequent judgment, his Honour committed the appellant to imprisonment for one month. His Honour said:

I think the contempt is serious. It was reckless in relation to the affidavit, and there was deliberate dealing with assets, clearly involving the risk that thereby assets would be dissipated below the limit of $200,000.00. The swearing of the affidavit helped the defendant avoid the appointment of a receiver; and by means of the affidavit and the dealing with the assets, he has frustrated the objective of the orders of ensuring that justice was done, by way of providing a means of satisfaction of a judgment in the event of a judgment being obtained I think it is necessary to impose a penalty to make it clear that these are serious matters. Although Hodgson J committed the appellant to prison for a month he later stayed his order pending appeal. 1. As the learned judge recognised, if the proceedings had been proceedings for criminal contempt, they would have been proceedings for contempt of the Supreme Court and the Court of Appeal would have been the appropriate Division of the Supreme Court to hear the proceedings although, until an order of the judge or the Court of Appeal, they could have continued in the Equity Division. See Supreme Court Act 1970 NSW, ss 48(2)(i) and (4)(a)(ii) and 51. 2. (1987) 10 NSWLR 72. 3. When his Honour was dealing with the general principles of law applicable in the action, he said: "It seems clear that a deliberate act or omission which in fact breaches an order amounts to contempt. It is not necessary that there be an actual intention, or even belief that the act in question breaches the order. Indeed, such a breach will be regarded as wilful, unless it can be considered casual, accidental or unintentional."

In the Court of Appeal, the appellant sought leave to reargue the correctness of the decision of that Court in Peek . But the Court refused to give leave to do so. Other grounds of appeal (which are not relevant in this appeal) were rejected. In the course of rejecting a submission that the reckless swearing of an affidavit constituted perjury and consequently could not constitute contempt, Handley JA, who gave the judgment of the Court, said that the present case "is one where a finding of contempt is open on the basis of the wilful disobedience of an order of the Court".

The appellant contends that the Court of Appeal erred in holding that the offence of civil contempt may be proved on the balance of probabilities. He argues that any form of contempt must be proved beyond reasonable doubt. Alternatively, he contends that that Court erred in holding that the matters alleged to constitute the two contempts could be treated as proved and punished as a civil contempt instead of a criminal contempt. This ground does not seem to have been raised before the Court of Appeal [43] but, as it is an obvious alternative to the first ground, there is no reason why the Court should not consider it, if it arises.

1. Handley JA said that counsel for the appellant "did not submit to this Court that conduct which is a criminal contempt cannot also be a civil contempt".

The phrase "contempt of court" dates from at least the twelfth century [44] . While it was not until the seventeenth century that the courts drew a distinction between civil and criminal contempts [45] , the existence of the distinction has been firmly established since the middle of the last century. The distinction has been acknowledged or assumed in a number of decisions in this Court [46] . 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 [47] . 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 [48] . Civil contempts, on the other hand, are concerned with failures to comply with judgments or orders [49] of the courts [50] . But civil and criminal contempt overlap [51] . 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 [52] . Where noncompliance 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" [53] .

1. Fox, History of Contempt of Court (1927), p 1. 2. Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106. It seems likely that the distinction, as we now know it, did not become clear until the nineteenth century. See Arlidge and Eady, Law of Contempt (1982), pp 12, 14-15, 47. 3. R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 253-254; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 363-364; Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 497-498. In Mudginberri (1986) 161 CLR 98 at 106-109 the distinction was recognised and criticised although the Court did not seek to abolish the distinction because it was based on narrower grounds. 4. Attorney-General v Leveller Magazine [1979] AC 440 at 449; Mudginberri (1986) 161 CLR 98 at 106. 5. Arlidge and Eady, Law of Contempt (1982), pp 46-47; Borrie and Lowe's Law of Contempt, 2nd ed (1983), p 2; Miller, Contempt of Court, 2nd ed (1989), pp 2-3. 6. For the purpose of the law of contempt, an undertaking given to a court is treated as if it was an order: see Morgan (1965) 112 CLR 483 at 496. 7. Arlidge and Eady, Law of Contempt (1982), p 47; Borrie and Lowe's Law of Contempt, 2nd ed (1983), p 3; Miller, Contempt of Court, 2nd ed (1989), pp 3-4. 8. Scott v Scott [1913] AC 417 at 440, 456-457; Metal Trades Employers' Association (1951) 82 CLR 208 at 253; Morgan (1965) 112 CLR 483 at 501; Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1985) 5 FCR 169 at 180; Mudginberri (1986) 161 CLR 98 at 108. 9. Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127 at 132; Morgan (1965) 112 CLR 483 at 489. 10. Halsbury's Laws of England, 4th ed, (1974) vol 9, par 54.

The traditional rationale for the distinction between civil and criminal contempt has been that civil contempts affect only the parties to the proceedings while criminal contempts affect the community [54] . Proceedings for civil contempt have been seen as essentially or, at all events primarily, coercive, brought to compel the contemnor to comply with an order or judgment of a court; proceedings for criminal contempt, on the other hand, have been seen as punitive and deterrent, brought to uphold the public interest in the efficient administration and continuing authority of the institutions of justice. Thus, the object of the action for civil contempt has been seen as the protection of the rights of the successful party while the object of the action for criminal contempt has been seen as the protection of the community [55] .

1. Mudginberri (1986) 161 CLR 98 at 106. 2. Mudginberri (1986) 161 CLR 98 at 106.

However, it is difficult to accept the claim that the disobedience of a court order is a matter that concerns only the parties to the action. An order by way of fine, committal or sequestration of property for disobeying a court order cannot be regarded as a matter that concerns only the parties to the action. The fine, committal or sequestration vindicates the authority of the court and deters other suitors from disobeying the orders of the courts. Whether the object of particular civil proceedings is coercive, remedial or purely punitive, an order fining or imprisoning the contemnor or sequestrating the property of that person serves the public interest in maintaining the authority of the courts of justice. Indeed, courts and commentators recognise that the objectives of proceedings for civil and criminal contempt overlap [56] . In Jennison v Baker [57] , Salmon LJ pointed out that a defendant who breaches a curial order "is sent to prison for contempt with the object of vindicating (a) the rights of plaintiffs (especially the plaintiff in the action) and (b) the authority of the court". His Lordship said that these two objects are "inextricably intermixed".

1. Attorney-General v Times Newspapers Ltd [1974] AC 273 at 307-308; Mudginberri (1986) 161 CLR 98 at 112-113; Borrie and Lowe's Law of Contempt, 2nd ed (1983), p 3. 2. [1972] 2 QB 52 at 64.

Whether or not the parties/public interest rationales are justifiable, they have resulted in many differences of procedures between civil and criminal contempt. To take but some examples: civil contempt proceedings could only be initiated by a party to the order but proceedings for criminal contempt could be initiated by the Attorney-General, by the court of its own motion [58] or any person with an interest in the subject matter of the proceedings [59] ; civil but not criminal contempt could be waived by the aggrieved party [60] ; the sovereign could pardon criminal [61] but constitutionally could not pardon civil contempt [62] ; interrogatories are no longer administered to the alleged contemnor in criminal proceedings [63] but they probably still can be administered in civil proceedings [64] ; imprisonment for criminal contempt was for a fixed term [65] but imprisonment for civil contempt was usually for an indefinite term from which the contemnor was released ex debito justitiae on complying with the court's order [66] . Further, where criminal contempt was found, the court had power to imprison or fine the defendant [67] . Where a civil contempt was found, the court had power to imprison [68] but until recently the accepted view was that the court had no power to fine for civil contempt [69] . Finally, until comparatively recently, the accepted view was that criminal contempt had to be proved beyond reasonable doubt while civil contempt was provable on the balance of probabilities [70] .

1. Rules of Court now usually provide a power for the Court to direct one of its officers to commence the proceedings in his or her capacity as an officer of the court. See, eg, Supreme Court Rules 1970 (NSW) Pt 55, r 11; Federal Court Rules 1979 (Cth), O 40, r 10. 2. Matthews v Seamen's Union of Australia (1957) 1 FLR 185 at 193-195. 3. Times Newspapers Ltd [1974] AC 273 at 307-308; Home Office v Harman [1983] 1 AC 280 at 310. 4. In the Matter of a Special Reference from the Bahama Islands [1893] AC 138 at 149. 5. In the Matter of a Special Reference from the Bahama Islands (arguendo) [1893] AC 138 at 145; Seaward v Paterson [1897] 1 Ch 545 at 559; Adriatic Terrazzo & Foundations Pty Ltd v Robinson (1972) 4 SASR 294 at 296-297. 6. cf Blackstone, Commentaries on the Laws of England (1769), vol 4, pp 283-284; Robertson, Oswald's Contempt of Court Committal, Attachment, and Arrest upon Civil Process, 3rd ed (1910), p 23. 7. But see Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 at 73-74 where Lord Denning MR said that he thought that this rule does not exist "any longer today". 8. Attorney-General v James [1962] 2 QB 637 at 640-641 where Lord Parker CJ pointed out that, because committal for criminal contempt was for a fixed period, the court became functus officio after the sentence was imposed and could not order the contemnor's release when it was satisfied that the contempt had been purged: cf In the Matter of a Special Reference from the Bahama Islands [1893] AC 138 at 145. 9. In re Freston (1883) 11 QBD 545 at 554-555, 557; Mudginberri (1986) 161 CLR 98 at 114. However, the courts clearly had power to commit for fixed terms in cases of civil contempt even in cases where the committal was essentially coercive in nature: see, eg, R v Hemsworth (1846) 3 CB 745 at 753-754 [136 ER 299 at 302]. 10. Fox, History of Contempt of Court (1927), p 2; Miller, Contempt of Court, 2nd ed (1989), pp 30-33. 11. Fox, History of Contempt of Court (1927), p 2; Miller, Contempt of Court, 2nd ed (1989), pp 30-31. 12. Morgan (1965) 112 CLR 483 at 499, 516. 13. Consolidated Press Ltd v McRae (1955) 93 CLR 325 at 333, 346.

All these differences in procedure were seen as the natural, if not logical, consequence of the distinction between an action which concerned only the parties to civil proceedings and an action that concerned the general community. But in recent times these distinctions in procedure have begun to break down. Indeed, in Home Office v Harman [71] , Lord Scarman said that "[t]he distinction between "civil" and "criminal" contempt is no longer of much importance". Two of the most important of the distinctions that have disappeared or become doubtful are the power to fine and the standard of proof.

1. [1983] 1 AC 280 at 310. These remarks must, of course, be read in the context of the now accepted law in England that civil contempt as well as criminal contempt must be proven beyond reasonable doubt.

As I have pointed out, until recently the accepted view was that a court had no power to fine for civil contempt. At first sight it seems anomalous that a court could imprison but could not fine a person for civil contempt. But the distinction is logical if the sole or dominant purpose of proceedings for civil contempt is to coerce the contemnor to comply with an order or to fulfil an undertaking. If that is the purpose of those proceedings, a once-for-all fine for the breach of an order or undertaking would seldom further that purpose and would merely punish the contemnor while leaving the breach, if it is remediable, unremedied. It was for that reason that, in Australian Consolidated Press Ltd v Morgan [72] , Windeyer J said that, in the absence of statutory authority, courts had no power to fine for a civil contempt. But this Court has now authoritatively determined that in some circumstances courts do have power to fine for civil contempt [73] . That power exists where the breach has not been the result of "casual, or accidental and unintentional disobedience" [74] . 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" [75] . 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 [76] . In Heatons Transport (St Helens) Ltd v Transport and General Workers' Union [77] where the House of Lords upheld the power to fine, Lord Wilberforce, speaking on behalf of the House, was at pains to point out that wilful breach was not the same as "contumacious or insulting behaviour or interference with the administration of justice".

1. (1965) 112 CLR 483 at 499. 2. Mudginberri (1986) 161 CLR 98 at 109-115. See also Coonan & Denlay Pty Ltd v Superstar Australia Pty Ltd (No 2) (1981) 57 FLR 118 at 129-131; Flamingo Park (1985) 5 FCR 169 at 181-183. 3. Fairclough v Manchester Ship Canal Co (1897) 41 Sol Jo 225. 4. Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194. 5. Steiner Products Ltd v Willy Steiner Ltd [1966] 1 WLR 986 at 992; [1966] 2 All ER 387 at 390; Heatons Transport (St Helens) Ltd v Transport and General Workers' Union [1973] AC 15 at 108-109; Mudginberri (1986) 161 CLR 98 at 112-113; and cf Stancomb [1910] 2 Ch 190 at 194. 6. [1973] AC 15 at 108.

It is difficult to understand why it took so long for the courts to accept that, in civil proceedings for contempt, they had the power to fine a contemnor. In proceedings for civil contempt, courts had long exercised the power to impose a fixed sentence [78] by way of punishment for breach of an order, judgment or undertaking although the power was exercisable only in cases of wilful disobedience [79] , a standard that falls short of the requirement in criminal contempt of contumacy or defiance on the part of the person in breach. But once it is accepted that the courts do have the power in some circumstances to imprison or fine by way of punishment for civil contempt, it is difficult to maintain that civil proceedings for contempt are essentially coercive or remedial in nature and that they have a different rationale from proceedings for criminal contempt. If compliance with an order, judgment or undertaking is no longer possible or if, after breach, the order, judgment or undertaking has been complied with, the imposition of a term of imprisonment or a fine in proceedings for civil contempt is purely punitive. Moreover, once it is accepted that the courts have a punitive power to imprison or fine for civil contempt, there is no reason why that power cannot be exercised in addition to a remedial order. Thus, in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [80] where a trade union had failed to comply with injunctive orders, this Court upheld an order that fined the union $10,000 for breach of the injunction and a further fine of $2,000 for each day that the breach continued, effectively combining punitive and coercive orders.

1. Hemsworth (1846) 3 CB 745 at 753-754 [136 ER 299 at 302]; Seaward [1897] 1 Ch 545 at 552; Yager v Musa [1961] 2 QB 214 at 218-219; Danchevsky v Danchevsky [1975] Fam 17 at 21, 23. 2. Fairclough (1897) 41 Sol Jo 225, Lord Russell of Killowen CJ said that "no casual or accidental and unintentional disobedience of an order would justify either commitment or sequestration". His Lordship said that, to justify an order of commitment, the order must have been "contumaciously disregarded". In Steiner Products [1966] 1 WLR 986 at 991-992; [1966] 2 All ER 387 at 390, Stamp J interpreted the word "contumaciously" in this passage as meaning "wilfully". In Putnin (as Liquidator of Maff Investments Pty Ltd (In liq)) v Fuller (1991) 3 WAR 546, White AJ accepted (at 550) the submission of counsel that to justify an order for committal "wilful disobedience must be shown". As to the need to prove "wilful disobedience", see also Oswald on Contempt Committal and Attachment, 3rd ed (1910), p 101; Halsbury's Laws of England, 2nd ed, vol 7 at p 30. 3. (1986) 161 CLR 98.

Acceptance of the view that the courts have power in civil proceedings to impose once-for-all fines and fixed terms of imprisonment by way of punishment also makes it extremely difficult to justify any distinction in the standard of proof applicable in civil and criminal contempt proceedings where the object of the civil proceedings is purely punitive. If commitment for criminal contempt for contumaciously disobeying a court's order requires proof beyond reasonable doubt, as it undoubtedly does, why should a lower standard be required in civil proceedings when the object of the committal is not to remedy the breach of the order but to punish the contemnor for the breach? In both cases, the issues are essentially the same. Indeed, since in civil proceedings a person can be committed to prison by way of punishment for breach upon proof of wilful disobedience rather than upon proof of contumacy, the case for requiring proof beyond reasonable doubt in those proceedings is stronger than in criminal proceedings.

The English courts have gone further. Since the decision of the Court of Appeal in In re Bramblevale Ltd [81] , civil contempt has to be proved beyond reasonable doubt whether the object of the proceedings is punitive or coercive. In Bramblevale [82] , Lord Denning MR, without citing any authority, said:

A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. 1. [1970] Ch 128. 2. [1970] Ch 128 at 137.

In Bramblevale, counsel conceded that the criminal standard should be applied [83] , no authorities were cited in any of the judgments, and one of the judges preferred a test more akin to the civil standard of proof [84] . Nevertheless, in England the case has been taken as establishing that the standard of proof in proceedings for civil contempt is proof beyond reasonable doubt [85] .

1. Bramblevale [1970] Ch 128 at 134. 2. Bramblevale [1970] Ch 128 at 137. 3. Comet Products [1971] 2 QB 67; Bartrum v Healeswood [1973] FSR 585; Kent County Council v Batchelor (1976) 75 LGR 151; Re C (A Minor) (Wardship: Contempt) [1986] 1 FLR 578; Dean v Dean [1987] FCR 96.

In Canada, the distinction between civil and criminal proceedings continues to exist. But the Canadian courts have followed Bramblevale and apply the criminal standard of proof in civil contempt proceedings irrespective of the object of the proceedings [86] .

1. Re Sheppard and Sheppard (1976) 12 OR (2d) 4; Northwest Territories Public Service Association v Commissioner of the Northwest Territories [1979] 3 WWR 513; Royal Hotel Ltd v Saint John (City) (No 3) (1982) 42 NBR (2d) 690; Nemo Foods Ltd v Remi Rivet Fast Foods Ltd (1982) 64 CPR (2d) 125; Amourgis v Law Society of Upper Canada (1984) 7 OAC 23; Vance v Vance (1984) 50 BCLR 373; Wood v 277887 Alberta Ltd (1984) 55 AR 144; R v Jetco Manufacturing Ltd (1987) 31 CCC (3d) 171.

The decision in Bramblevale has also influenced a number of Australian courts to apply the criminal standard of proof in civil proceedings for contempt. Prior to that decision, the accepted view in this country was that civil contempt had to be proved in accordance with the civil standard of proof and that criminal contempt had to be proved in accordance with the criminal standard of proof [87] . Decisions in Australia are now divided between those that have followed In re Bramblevale [88] and those that hold that, in a case of civil contempt, the standard of proof is on the balance of probabilities but with such strictness of proof as is required by the gravity of the charge [89] . In New South Wales, Peek [90] is the leading case. There, the Court of Appeal held that the standard to be applied in civil proceedings is the civil standard of proof but that the degree of satisfaction of proof required varies according to the gravity of the fact to be proved [91] .

1. Consolidated Press Ltd v McRae (1955) 93 CLR 325 at 333, 346. 2. In Marriage of Sahari (1976) 25 FLR 475; 11 ALR 679; 2 Fam LR 11,126; [1976] FLC 75,396; Commissioner of Water Resources v Federated Engine Drivers' & Firemen's Association of Australasia Qld Branch [1988] 2 Qd R 385; Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535; as well as a number of unreported decisions referred to by the appellant. In Hinch v Attorney-General (Vict) (1987) 164 CLR 15 at 49-50, Deane J made it clear that he would prefer to follow In re Bramblevale. 3. Sunibrite Products (Aust) Pty Ltd v Jabuna Pty Ltd (1980) 47 FLR 73; Jendell Australia [1983] 1 NSWLR 127; Flamingo Park (1985) 5 FCR 169; Ellendale Pty Ltd v Graham Matthews Pty Ltd (1986) 11 FCR 347; 65 ALR 275; Windsurfing International Inc v Sailboards Australia Pty Ltd (1986) 19 FCR 110; Re Kerrison; Ex parte Official Trustee in Bankruptcy (1990) 25 FCR 233. 4. (1987) 10 NSWLR 72. 5. Peek (1987) 10 NSWLR 72 at 81. Peek is erroneous in stating (at 81) that in Mudginberri this Court had abolished the distinction between civil and criminal contempts "in cases of disobedience of orders made by a court in civil proceedings" and had substituted a distinction between "casual, accidental and unintentional disobedience" and wilful disobedience. In Mudginberri (1986) 161 CLR 98 at 105-113, the Court was discussing the power of the Federal Court to fine for wilful but not contumacious disobedience of an order. It said that in civil contempt proceedings the Federal Court has power to fine in relation to wilful disobedience but not in relation to casual, accidental or unintentional disobedience. The Court did not abolish the distinction between civil and criminal contempt. In Peek, the Court of Appeal also seems to imply (at 82) that the power to fine for wilful disobedience in New South Wales comes from Pt 42, r 6 of the Supreme Court Rules. But Pt 42 does not give power to fine. It gives a power to imprison or sequestrate property. Sequestration is not the imposition of a fine. 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. However, if Pt 42 is the exclusive source of power to deal with the disobedience of judgments and orders, it has been ignored in the New South Wales cases and the power to fine has been applied in cases of disobedience to orders, eg, Bourke Shire Council v Dwyer (1993) 79 LGERA 185.

It is impossible to justify the continued application of the civil standard of proof in proceedings for contempt where the object of the proceedings is punitive and not remedial. It is contrary to one of the most fundamental rules of our legal system to commit a person to prison by way of punishment for breach of a curial order when the breach is only proved according to the civil standard. The consistent application of this basic principle requires that civil contempt proceedings brought to punish the contemnor must be proved according to the criminal standard. The requirement is probably greater than ever now that the power to fine for civil contempt has been authoritatively established. It is likely that courts will frequently punish by way of fine in situations where previously they were reluctant to imprison contemnors. However, I think that in proceedings for civil contempt it is necessary to go further than to merely apply the criminal standard of proof to cases where the object of the proceedings is purely punitive. Australian courts should follow the approach of the English and Canadian courts and require that all contempts be proved according to the criminal standard of proof.

To attempt to confine the criminal standard to those cases where the object of the proceedings is purely punitive is a course fraught with practical difficulties. In many cases of civil contempt, the proceedings may be brought for the purpose of coercing the contemnor as well as punishing that person [92] . 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 [93] , 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 [94] .

1. cf Mudginberri (1986) 161 CLR 98. 2. cf Peattie v Murphy (1964) 82 WN (Pt 1) (NSW) 163. 3. In Morgan (1965) 112 CLR 483, however, Barwick CJ thought that, when an order had been contumaciously disobeyed, civil proceedings to enforce the order could become proceedings for criminal as well as civil contempt. His Honour said (at 489): "A contempt in procedure by disobedience of an order of the Court or by breach of an undertaking given to it may be accompanied by such contumacy or defiance on the part of the party against whom the contempt proceedings are brought as evidences a criminal as well as a civil contempt. There is no reason in such a case why the same proceedings taken at the instance of the aggrieved suitor may not result in orders which are coercive of compliance with the Court's order or of an undertaking given to it and at the same time punitive of the criminal contempt."

However, despite the practical difficulties of making the standard of proof depend upon the object of the contempt proceedings, the federal courts in the United States follow this course. If the primary purpose of the proceedings is coercive or remedial so as to enforce the private rights of the successful party, the proceedings are classified as civil proceedings. If the primary purpose of the proceedings is to punish the disobedient party or to vindicate or maintain the authority of the court, they are classified as criminal proceedings [95] . Although civil contempt may have incidental punitive effects and criminal contempt may have incidental coercive effects, the effect of the proceedings does not alter their character [96] .

1. Gompers v Bucks Stove & Range Co (1911) 221 US 418 at 441. 2. Gompers v Bucks Stove & Range Co (1911) 221 US 418 at 443.

In the United States, the standard of proof is determined by the nature of the proceedings. In criminal contempt, proof must be established beyond reasonable doubt [97] . In civil contempt, proof must be "clear and convincing" which is a standard that lies between the ordinary civil and criminal standards. The standard of proof in civil contempt appears to derive from Oriel v Russell [98] , a case relating to the enforcement of an order for production of certain business records in a bankruptcy case. Previous cases which had required proof beyond reasonable doubt were not followed; Taft CJ, delivering the opinion of the Court, said [99] :

We think it would be going too far to adopt the severer rule of criminal cases and would render the bankruptcy system less effective. In recent cases, all the federal Courts of Appeal that have considered the issue have applied this standard [100] . 1. Gompers v Bucks Stove & Range Co (1911) 221 US 418 at 444; Hicks v Feiock (1988) 485 US 624 at 632; United Mine Workers v Bagwell (1994) 129 L Ed 2d 642 at 654-656. 2. (1929) 278 US 358. 3. Oriel (1929) 278 US 358 at 365.

4. DC Circuit: Armstrong v Executive Office of the President (1993) 1 F 3d 1274 1st Circuit: Langton v Johnston (1991) 928 F 2d 1206. 2nd Circuit: SEC v American Board of Trade Inc (1987) 830 F 2d 431 (cert denied 485 US 938); US v Ayer (1989) 866 F 2d 571; NewYork State National Organisation for Women v Terry (1989) 886 F 2d (cert 1339 denied 495 US 947). 3rd Circuit: Quinter v Volkswagon of America (1982) 676 F 2d 969; United States v Pozsgai (1993) 999 F 2d 719. 5th Circuit: Whitfield v Pennington (1987) 832 F 2d 909 (cert denied 487 US 1205); Petroleos Mexicanos v Crawford Enterprises Inc (1987) 826 F 2d 392; Martin v Trinity Industries Inc (1992) 959 F 2d 45. 6th Circuit: Glover v Johnson (1991) 934 F 2d 703. 7th Circuit: Stotler & Co v Able (1989) 870 F 2d 1158; D Patrick Inc v Ford Motor Co (1993) 8 F 3d 455; United States v Berg (1994) 20 F 3d 304. 9th Circuit: Balla v Idaho State Board of Corrections (1989) 869 F 2d 461; In re Dual-Deck Video Casette Antitrust Litigation (1993) 10 F 3d 693. 11th Circuit: Afro-American Patrolmen's League v Atlanta (1987) 817 F 2d 719; US v Roberts (1988) 858 F 2d 698; Jordan v Wilson (1988) 851 F 2d 1290; CFTC v Wellington Precision Metals Inc (1992) 950 F 2d 1525.kkk The appellant's written outline is therefore misleading when it says that in the United States "there [is] some support for something less than the criminal onus". Amongst federal courts the position is clear and unanimous - a lesser standard applies. Some State courts apply the criminal standard but these decisions would appear to be inconsistent with Oriel, a decision which of course is not binding on State courts.

It is difficult to determine whether the "clear and convincing proof" standard formulated in Oriel is the United States equivalent of proof in accordance with Briginshaw v Briginshaw [101] . However, since it is a standard that lies between the ordinary civil standard and the criminal standard of proof, it would appear most unlikely that it is. That being so, it would be undesirable to adopt the United States test for civil contempt and introduce a third standard of proof into Australian jurisprudence.

However, the chief reason for rejecting the United States approach of classifying proceedings for contempt according to their objective is that it leads to the practical problems to which I have referred. Significantly, the attempt to distinguish civil and criminal contempts by reference to the primary objective of the proceedings has been trenchantly criticised by United States commentators [102] .

1. See Mascolo, "Procedural Due Process and the Reasonable Doubt Standard of Proof in Civil Contempt Proceedings" [1988] New England Journal on Criminal and Civil Confinement 245 at 253-254 which criticises and refers to other criticisms of the purposive approach.

No doubt the adoption of the criminal standard of proof for all contempt proceedings will make it difficult for those entitled to the benefit of judgments, orders and undertakings to enforce them. In many cases, the only means by which litigants can enforce the judgments or orders of the court is by contempt proceedings. The importance of the contempt sanction in resolving disputes is outlined in the following passage [103] :

It is no more than a commonplace to note that the value of a right, to a litigant, is no greater than the available remedy, and the remedy in equity is the injunction. This insight, however, should be worked to capacity, and we have not done so until we realise that the remedy, the injunction, is worth no more than its sanction, contempt. 1. Moskovitz, Contempt of Injunctions, Civil and Criminal, Columbia Law Review, vol 43 (1943) 780 at 780.

Where a party's substantive rights are determined on the balance of probabilities, consistency might seem to require that the enforcement of those rights should also be governed by the balance of probabilities standard. On that view, the respective rights of contemnors and parties entitled to the fruits of judgments and orders would be properly balanced if the civil standard, subject to a Briginshaw direction, ordinarily governed proof of civil contempt [104] but the criminal standard governed purely punitive proceedings for civil contempt. This would in so far as it required the higher standard of proof for civil contempt require a modification of the jurisprudential theory that characterises civil contempt proceedings, including its punitive aspects, as a form of execution for enforcing the rights of a successful party to litigation [105] .

1. Indeed in Flamingo Park (1985) 5 FCR 169 at 183-184, Wilcox J said that where imprisonment was contemplated, the civil onus with a Briginshaw test would be little different from the criminal onus: see also Ellendale (1986) 11 FCR 347. 2. "Civil, distinguished from criminal, contempt is a wrong for which the law awards reparation to the injured party; though nominally a contempt of court, it is in fact a wrong of a private nature as between subject and subject, and the King is not a party to the proceedings to punish it. The punishment is a form of execution for enforcing the right of a suitor." (Fox, The History of Contempt of Court (1927), p 1.)

The difficulty of enforcing judgments, orders and undertakings according to the criminal standard of proof is a matter that cannot be lightly dismissed. But it has to be weighed against the consequence of committing a person to prison for breach of an order etc that has only been proved on the balance of probabilities. I think that contemporary notions of justice are offended by a rule of law that allows a person to be imprisoned for an indefinite period to coerce him or her to comply with an order, the breach of which has only been proved on the balance of probabilities [106] . No doubt it can be urged that, at least in those cases where the court has made a finding of breach before the proceedings for committal are commenced or resurrected, the contemnor should thereafter have obeyed the order. But even in those cases the contemnor, if committed, will have been committed to prison for a breach that has been proved only on the balance of probabilities.

1. cf the recommendation of the Australian Law Reform Commission urging that the law of contempt be changed so that civil as well as criminal contempts are proved beyond reasonable doubt - see Contempt , Report No 35 (1987) at par 581.

It follows in my view that this Court should now declare that, in all proceedings for contempt of court, the moving party must prove the contempt beyond reasonable doubt.

The appellant did not urge that the distinction between civil and criminal contempt should be abolished although, once the standard of proof becomes the same in both classes of proceedings, there is much to be said for abolishing all distinctions between them. Why should a person in the appellant's position be unable to obtain a pardon or remission of the sentence when those remedies would have been available if he or she had been prosecuted for criminal contempt? Why should the person who is prosecuted for criminal contempt be unable to purge his or her contempt when the person prosecuted for civil contempt has that option? If the right to waive civil contempts still exists, why should there be a right to waive the contempt in civil but not criminal proceedings [107] ? Why should the contemnor's right of appeal differ depending on whether the proceedings are for civil or criminal contempt? It is difficult, if not impossible, to rationally justify these differences once the standards of proof are assimilated and civil contempt can lead to purely punitive sanctions.

1. In In re Grantham Wholesale Fruit, Vegetable & Potato Merchants Ltd [1972] 1 WLR 559 at 566, the judge took the view that they were entitled to deal with the contempt in a way different from the wishes of the complainant. For the contrary view, see Times Newspapers Ltd [1974] AC 273 at 307-308; Harman [1983] 1 AC 280 at 310.

The case for abolishing the distinction between civil and criminal contempts is a strong one. Moreover, it is a course of action that is open to this Court having regard to its duty to rationalise the principles of the common law. But, having regard to the argument that we heard, there is no need to consider whether we should take that step in this case. It is sufficient to say that in applying the standard of proof laid down in Peek , the Supreme Court erred. The appeal must therefore be allowed.

The appellant submitted that, as the proceedings were essentially criminal in nature, this Court could not order a new trial of the proceedings if it allowed the appeal. He submitted that in New South Wales only the Court of Criminal Appeal had power to order a new trial in criminal proceedings [108] . However, although the principal, if not sole, object of the present proceedings was to punish the appellant, the proceedings were and remain civil and not criminal proceedings for contempt. They were commenced [109] under the Rules of the Supreme Court that govern civil proceedings. Moreover, the appellant's appeal lay to the Court of Appeal pursuant to s 101 of the Supreme Court Act 1970 NSW and not to the Court of Criminal Appeal under the Criminal Appeal Act 1912 NSW. By s 75A(10) of the Supreme Court Act, the Court of Appeal, in hearing an appeal, "may make any order which the nature of the case requires". Under that subsection, the Court of Appeal regularly makes orders allowing appeals and remitting the proceedings back to a Division for further hearing or a rehearing. There is no reason why that power should be read down to exclude appeals from findings of civil contempt that have been heard in a Division of the Court. It is true that the provisions of Pt 55 apply to proceedings for criminal contempt that are commenced in the summary jurisdiction. It might be thought unlikely that, in the absence of an express power, the Court of Appeal was intended to have power to order a rehearing of criminal proceedings after a finding of criminal contempt has been set aside. But the Supreme Court Act and Pt 55 proceed upon the theory that proceedings for criminal contempt will ordinarily be heard by the Court of Appeal itself and that there is no appeal against a finding of contempt by that Division of the Supreme Court. It will be time to determine whether the rehearing power conferred by s 75A(10) applies to criminal proceedings commenced under Pt 55 when a case arises where proceedings for criminal contempt have been commenced and have remained in a Division and an appeal has then been taken to the Court of Appeal. In the ordinary course of events, because the Court of Appeal hears proceedings for criminal contempt, s 75A(10) will not apply to criminal proceedings for contempt although it applies to civil proceedings for contempt. As I have pointed out, many differences in procedure still exist between civil and criminal contempt proceedings. It is therefore unsurprising that they give rise to different rights of appeal with different remedies.

1. Criminal Appeal Act 1912 NSW, s 8. 2. The proceedings were commenced by Summons in accordance with Pt 55, r 6(2). However, as the contempt was "committed in connection with proceedings in the Court" and the respondent sought an order that the appellant "be punished", it would seem that the application should have been by notice of motion under Pt 55, r 6(1).

The appellant also submitted that in the exercise of its discretion the Court should not order a rehearing of the respondent's submissions. The appellant urged a number of grounds to support such an exercise of discretion. They were: (1) the maximum sentence in any re-trial ought to be no more than one month; (2) the appellant has had to bring an appeal to the Court of Appeal and to this Court; (3) a lengthy period has elapsed since the alleged breach; and (4) the proceedings have caused the appellant "a certain amount of worry and emotional turmoil". But the contempt alleged is a serious one which, if established, has caused the respondent to pursue an action that has turned out to be largely, if not wholly, futile. In those circumstances, no good reason appears for refusing to allow the respondent to pursue his summons to have the appellant punished for contempt.

The appeal should be allowed with costs. The order of the Court of Appeal should be set aside. The appeal to that court should be allowed with costs. The order of the Equity Division made on 22 April 1992 and entered on 20 May 1992 should be set aside and the Summons remitted to the Equity Division for a rehearing. The costs of the proceedings before Hodgson J should abide the result of the rehearing.