Witham v Holloway S59/1993 [1995] HCATrans 15 (10 February 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S59 of 1993

B e t w e e n -

JOHN ALLAN WITHAM

Appellant

and

JOHN WILLIAM HOLLOWAY

Respondent

BRENNAN J

DEANE J

TOOHEY J

GAUDRON

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 10 FEBRUARY 1995, AT 10.16 AM

Copyright in the High Court of Australia

MR P. KINTOMINAS: May it please the Court, I appear for the appellant. (instructed by Castrission & Co)

MR K. MASON, QC, Solicitor-General for the State of New South Wales: I appear with my learned friend, MR N. F. FRANCEY, for the respondent. (instructed by H.K. Roberts, Crown Solicitor for the State of New South Wales)

BRENNAN J: Mr Kintominas.

MR KINTOMINAS: My it please, your Honours, I hand up an outline of the argument.

BRENNAN J: Yes, Mr Kintominas?

MR KINTOMINAS: May it please your Honours, this is an appeal from the New South Wales Court of Appeal. In this matter or prior to this matter the respondent, who is the Commissioner for Consumer Affairs in New South Wales, had brought an action under the Fair Trading Act 1912 to recover damages on behalf of a group of consumers; a sort of class action under the Act.

During the course of the proceedings the respondent sought to obtain control over the appellant's property in order to be able to satisfy a judgment. As a consequence of the manoeuvres by the respondent, the appellant was directed to file an affidavit with the court setting out his financial affairs and in due course was then directed not to allow his assets to fall below a certain level. Before the proceedings finished it became apparent that the appellant was bankrupt and proceedings for contempt were initiated by the respondent.

The short point really before the Court this morning is that in the contempt proceedings which were brought before Mr Justice Hodgson in the Equity Division, Mr Justice Hodgson decided that in determining the appellant's guilt of contempt, that he would apply the civil onus of proof but not the criminal onus.

Your Honours will see that his Honour's attention was specifically directed to the point because he noticed that in the New South Wales Practice the criminal onus was said to be the correct onus. His Honour however found in accordance with the principles that had been laid down in New South Wales, Egg Corp v Peek and Jendell v Kesby, an earlier decision of the New South Wales Supreme Court; being a decision of Mr Justice McLelland in Equity.

Your Honours will also note that in respect of - I should perhaps backtrack. The contempt allegation basically fell into two categories: one, that there had been at least reckless swearing of the affidavit that he was asked to put before the court; and, secondly, that there also had been a contempt in allowing his assets to drop below the level that he was directed to maintain.

Mr Justice Hodgson, in respect of the first matter, that is the false swearing, indicated that he was satisfied on the balance of probabilities that there had been at least recklessness in the swearing of the affidavit. In respect of the second matter, he did not again advert to whichever standard he was following but it is clear that he was following the civil standard, fortified by considerations that are expressed in Briginshaw v Briginshaw, about the necessity to be satisfied having regard to the gravity of the allegation, but the civil onus nonetheless.

TOOHEY J: How would you apply the civil and criminal onus to that second limb of contempt where the allegation is just in terms that your client disposed of property so as to reduce its value below the nominated figure?

MR KINTOMINAS: Well, your Honours, certainly not all the evidentiary material that went to prove that contempt or it was said to prove that contempt is before your Honours and I must say, your Honours, that I am not totally au fait with exactly what all the evidentiary material was.

TOOHEY J: I did not want to take you into that, not at all, but just what would you ask yourself? Where you are dealing with an allegation that someone did something knowingly or recklessly, it is perhaps easier to say, "Well, maybe he did, but I am not satisfied to the criminal standard that he did." The second limb is really a factual allegation, is it not, that he disposed of property? I am just wondering, applying either standard, what question you would ask.

MR KINTOMINAS: I think his Honour Mr Justice Hodgson himself posed a question and there was the consideration as to whether or not there were events that were outside of the appellant's control and, indeed, your Honours, there is probably three things to consider in respect of that second allegation in a broad factual sense. The first was just exactly how much over the margin that he had been asked to maintain, what were his real assets at the time that he swore the declaration.

If, for example, they were way over the limit that he was asked to maintain, it might be, of course, a fairly difficult matter to argue that it was just bad luck. If, on the other hand, he had only exceeded it by a certain amount, then bad luck in an economic sense could have had something to do with it.

The other question in respect of that was that it certainly seemed to be a fairly confusing picture and, in my submission, it was open to Mr Justice Hodgson to say, in respect of the second limb, "Well, I am satisfied beyond reasonable doubt in respect of this, anyway, he did not do so". And I would ask this Court to take the view that, although, as your Honour Justice Toohey has pointed out that there certainly may have been a stronger case there, there is not enough material before this Court to be satisfied - - -

TOOHEY J: No, I am not suggesting it is strong or weak; I was just intrigued as to how one might answer that question. But for my purposes what you have said is enough, thank you.

MR KINTOMINAS: Thank you, your Honour. Your Honours, I have attempted, in the outline of my argument, to set out as best as I can a recitation of the authorities. Unless the Court wishes me to, I do not propose to take your Honours to every single authority that is listed there.

McHUGH J: Well, we can read them for ourselves. Your time would be better spent putting the policy arguments as to why the criminal onus rather than the civil is the correct one.

MR KINTOMINAS: Your Honours, in respect of the policy arguments, I am very indebted to my friend the learned Solicitor who, through his offices, was able to find an article called, "Procedural Due Process And The Reasonable Doubt Standard Of Proof In Civil Contempt Proceedings", that is the article by Mascolo that is referred to in paragraph 7. Your Honours, I have copies for the Court. I hope your Honours will not be too troubled by the clarity of the photocopying. The article, apparently, was not in Australia, it was faxed, and the photocopies have been made from a fax. That article reviews the American situation and also presents arguments in the author's opinion which would - - -

BRENNAN J: What is the work from which it is taken, do you know?

MR KINTOMINAS: My friend is able to enlighten me on that. It is (1988) 14 New England Journal on Criminal and Civil Confinement 245.

BRENNAN J: In New England they have a 14 volume work on civil and criminal confinement, I gather?

MR KINTOMINAS: It appears so, your Honour.

McHUGH J: It would be volume 14 of the journal, I suppose.

BRENNAN J: Is there some part of this that we should particularly look at for the purposes of your argument?

MR KINTOMINAS: I would not be asking your Honours to look at it at this stage. I may, during the course of my argument - I will be adopting some of the arguments that are in that article. The policy considerations, in my respectful submission, have to start with a consideration of the analysis between civil and criminal contempt to this extent. It has been certainly argued by the cases that are against me and no doubt will be argued by my friend to some extent that there is a clear-cut difference between civil and criminal contempt. Those arguments seem to have proceeded from a United States decision, a decision of the United States Supreme Court, called Gompers v Bucks Stove and Range Company. That is not on the list, your Honours, but I have copies for the Court. The passages that I would be taking Your Honours to would be from about the middle of page 441 through to page 444.

TOOHEY J: I am not clear what you are saying about this case, Mr Kintominas. When you say it is - I am not sure what word you used - something to suggest it is the foundation, do you mean it explains the difference or that the difference itself may be traced back to that particular decision?

MR KINTOMINAS: My submission is that the divergence in the cases, that is, the line of authority that is against me appears to be rooted in some way in this decision.

What the United States Supreme Court said in that case was that there was, in effect, a meaningful distinction between civil and criminal contempt in that even if they both resulted in imprisonment, the purpose of imprisoning for civil contempt was coercive and remedial. That in cases of civil contempt the contemnor was put into prison, in effect, so as to force him to comply with the order of the court in which he was in breach of, and it was said that the keys to get out of the prison were really in his own pocket. On the other hand, in cases of criminal contempt, the purpose was to punish him. That case, Gompers v Bucks Stove, specifically avoided deciding what was the proper standard of proof in the cases of civil contempt but it made this point and it makes the point on page 444.

McHUGH J: I was going to raise this with you earlier, but perhaps I should not delay any longer. May it not be that the true doctrine in these cases depends upon what the purpose of the proceedings is? In this case, the proceedings seem to have been purely punitive.

MR KINTOMINAS: Yes, your Honour.

McHUGH J: Therefore, it required truth beyond reasonable doubt, irrespective of whether you classified it as civil or criminal. But if, on the other hand, your client had been sent to gaol until he revealed certain assets, then it could be done on the balance of probabilities. So, the distinction is not so much between civil and criminal contempt, if that is a meaningful distinction, as to what the purpose of the punishment is. I do not know whether that is rooted in the cases or has been discussed anywhere, but it is a thought that has occurred to me at different times.

MR KINTOMINAS: Your Honours, certainly Gompers v Bucks Stove supports what your Honour has just canvassed: that one looks to the purpose of it. Gompers v Bucks Stove certainly makes the point that you have a measure of punishment, in effect, built in even when you are putting somebody in for coercion but that is not the primary purpose. But Gompers v Bucks Stove certainly makes it clear in the opinion of the United States Supreme Court that if the purpose is only punitive then it is criminal proceedings and that is all it is.

McHUGH J: Is that the American doctrine, that you look to the purpose of the punishment as to what the standard of proof is?

MR KINTOMINAS: Your Honours, I am not sure whether the copy that I have handed up on the relevant pages is easy to read, but from the bottom of page 443 it says:

In this case the alleged contempt did not consist in the defendant's refusing to do any affirmative act required, but rather in doing that which had been prohibited. The only possible remedial relief for such disobedience would have been to impose a fine for the use of complainant, measured in some degree by the pecuniary injury caused by the act of disobedience.

Then there are some authorities:

But when the court found that the defendants had done what the injunction prohibited, and thereupon sentenced them to jail for fixed terms of six, nine and twelve months, no relief whatever was granted to the complainant, and the Bucks Stove & Range Company took nothing by that decree.

If then, as the Court of Appeals correctly held, the sentence was wholly punitive, it could have been properly imposed only in a proceeding instituted and tried as for criminal contempt.

That passage, your Honours, in my submission, supports the purpose test. Now, if your Honours certainly take the view that the purpose test is sufficient to decide this case, then, of course, in this case what happened was that he was given a month's imprisonment. It was a punishment pure and simple.

One of the difficulties with the purpose test, if I may respectfully make this submission, your Honours, is this, that one might then have to justify in due course a policy differentiation between having a proof on the criminal onus in cases where it is only punitive and proof on the civil onus in cases where it is coercive. Your Honours may wish to leave that for another day and your Honours may, however, take into account that that may perhaps create a difference which might on the whole create problems.

Indeed, although certainly it is not my brief here today to try and defend what might happen in a coercive situation but the difficulty is that if - take for example a situation where somebody happens to be innocent. He is sent to jail until he complies with the court's order. If he happens to be innocent he has no means of complying with it.

DEANE J: It is rare that onus arises in a coercive situation. The ordinary coercive situation is when somebody is ordered to do something and he says, "I won't".

MR KINTOMINAS: That is no problem - - -

DEANE J: Obviously there can be cases where there will be preliminary questions of fact which must be determined adversely before a coercive order could be justified.

MR KINTOMINAS: Yes, your Honours, I noticed for example in the papers the other day that Israel's longest serving prisoner had died. He had been in jail 38 years for refusing the order of a Rabbinical court to give a divorce to his wife. It was clear in that situation that he was able to do what it was that the court had wished him to do, he just did not want to do it.

DEANE J: But an order to produce property or you deny that you have it can lead to indefinite imprisonment based on the standard of proof.

MR KINTOMINAS: Your Honours, obviously, miscarriages of justice can occur but it is a fairly monstrous miscarriage if you are put into prison on an indefinite basis because it is suspected that you are not doing what you should do because then you have no way of remedying the situation. Of course, there has been a more modern trend in Australia, after some months, to let people out. I do not think the Israeli example would now apply in Australia. But nevertheless, the policy issue really arises that the courts will be sending somebody to prison, would be depriving them of their liberty and the question would be asked: on what basis is the court satisfied that this person is guilty of the conduct which needs- whether punishment or a mediation, on what basis is the court satisfied?

McHUGH J: Supposing you had a corporation that has been involved in a series of continuing nuisances and an order is made restraining it but there is a further breach, but in debatable circumstances, how do you classify that? What sort of onus of proof do you apply in a case like that?

MR KINTOMINAS: I am aware that your Honours have, I think, recently decided that the privilege against self-incrimination does not apply to corporations. Obviously, a corporation cannot be put into prison. I do not wish to fall back on an argument that it very much depends on what the penalty you have in mind is what standard proof you impose. That does not seem to be a satisfactory method of resolving the matter although, of course, all the arguments that are put forward are illustrated on that basis, that it is a question of what standard of proof should we insist on if somebody is going to be imprisoned. In the case of a corporation, your Honours, I can understand that there may be some different policy applicable but even if there was it should not affect the current instance.

BRENNAN J: Mr Kintominas, I am not sure how the problem that you are agitating arises here. Are you saying that in this case it was a case of criminal contempt anyhow?

MR KINTOMINAS: Your Honours, I am saying as follows: firstly, that in respect of the first arm of the contempt, the contempt would have constituted an offence under the Oaths Act of New Ssouth Wales in respect of false swearing. Secondly, his Honour Mr Justice Hodgson was of the view that it could amount to either a criminal or a civil contempt. Now, that then produces the fairly anomalous situation where it is the same fact that has to be proved. If the court says, "Well, I will treat this as a civil contempt, I only have to be satisfied on the balance of probabilities they are guilty. If I treat this as a criminal contempt, I have to be satisfied beyond reasonable doubt they are not guilty".

BRENNAN J: I notice in the article that you gave us the suggestion is that any civil contempt always leads to a penalty which is expressed in terms of "until the contempt is purged", and if it is a question simply of inflicting a punishment for non-compliance with a court's order, which seems to be the situation here, it is a criminal contempt, in which event, the proof is beyond reasonable doubt.

MR KINTOMINAS: Yes, your Honour.

BRENNAN J: And you have made your point, but the question of what the standard is for civil contempt then does not arise. It is a question of classification of the contempt.

MR KINTOMINAS: Yes, your Honours, I accept that, and indeed, it is my submission to the Court that it should be treated as a criminal contempt, but if your Honours are not with me on that point, then I would be asking your Honours to deal with this issue of what should be the onus of proof in civil contempt.

BRENNAN J: Is that classification of civil and criminal contempt the Australian classification?

MR KINTOMINAS: Your Honours, the position does not seem to be clear. Some authorities seem to suggest that where the disobedience of the order of the court amounts to something which is contumacious, it becomes a criminal contempt. My submission in respect of that, however, is this, that these distinctions between wilful, accidental, casual, contumacious contempts; that is really a category of aggravation, and that the proper approach would be, if it is a criminal contempt it is a criminal contempt, and then, how badly the contemnor is in contempt is something that one takes into account when administering the penalty.

BRENNAN J: The real problem is whether civil contempt is rightly named as contempt at all, or whether it is just part of the armory that the court has to procure the remedy which the successful party is entitled to. I mean, it may be that the armory includes the power to confine pending compliance, but this was not the present case, this was a case of saying, "Here is the order, there was non-compliance, suffer the punishment".

MR KINTOMINAS: That is right, your Honours, yes.

McHUGH J: Could you explain to me how Peek was applied in this particular case? I would have thought that Peek was not the governing authority in the case because Peek spoke about the case being wholly civil. Now, it does not seem to me that there is any civil aspect of this case at all. It seems to me to be purely a criminal case.

MR KINTOMINAS: Your Honours, it seems to have been assumed in the courts below that Peek did apply and was - - -

McHUGH J: I know that, but on what basis?

MR KINTOMINAS: Your Honour, before Mr Justice Hodgson the appellant at the relevant times in terms of the decision was unrepresented. It was Mr Justice Hodgson who came to the view that it was a civil contempt.

DEANE J: His Honour's view was that a criminal contempt was an act which interferes with the due course of justice, that a civil contempt was a refusal to comply with an order made by a court in civil proceedings. There is some support for that classification, is there not, and as his Honour said, this fell into the second classification, that is, failure to comply with a court order made in civil proceedings and, therefore, on that classification, was a civil contempt regardless of the consequences.

MR KINTOMINAS: Yes, your Honour, and, indeed, the two categories are not mutually co-exclusive.

DEANE J: I am not suggesting his Honour was right or wrong. I am just pointing to the basis on which his Honour acted.

MR KINTOMINAS: Yes. On the other hand, your Honours, if the situation is or should be that the failure to obey the order of a court, whether it is as a result of an order made in civil proceedings or otherwise, if that is a criminal contempt, then there is virtually no point in having an argument about what the onus of proof ought to be. It would follow that it ought to be the criminal standard in every case where there is contempt.

McHUGH J: On that theory, a no publication order in a criminal case requires only proof on the balance of probabilities, if one is dealing between acts which interfere with the administration of justice and acts which constitute breaches of order, if that is the criterion.

MR KINTOMINAS: That might have had the effect, for example, in Hinch's Case, that if there had been an order of the Court prohibiting the publication of the antecedents of the defendant and Hinch had breached those, that it would have put it into a different category of a situation where he chose to do it; there being no order of the Court at all. That would be an entirely untenable distinction and differentiation.

McHUGH J: Exactly, and it cannot depend on the nature of the proceedings. You would not expect to get a different result for refusing to obey a subpoena because it was a civil case or a criminal case.

MR KINTOMINAS: Yes, your Honour. Indeed, there was a case referred to by his Honour Justice Deane in Hinch's Case which was the case of Maria Annie Davies; a very old decision. That decision your Honours - the facts are summarised in the headnote. This lady, Mrs Davies, apparently was bringing actions for recovery of houses that she -supposed to be her property; she had no title. An injunction was imposed to restrain her from continuing the various actions that she was bringing and to refrain her from molesting the owner and the tenants of the estate.

She, notwithstanding that, endeavoured to take possession again. Now they obviously were orders made in civil proceedings. There is no doubt about that. That was a case where she went into custody and she refused to purge her contempt. There is no question about the onus of proof in that case but the interesting thing is that Justice Mathew expressed the following opinion. This is on page 238 about ten lines down or so:

It should be borne in mind that contempt of Court is a criminal offence, punishable as a misdemeanour by fine and imprisonment or both.

And there are references to Blackstone and Hawkins Pleas of the Crown. There is nothing in that case. One might have expected that if there had been - and I appreciate your Honours, that at the end of the day it is a question of the policy that your Honours in their wisdom see as the appropriate one, rather than some tedious argument - - -

McHUGH J: Not necessarily. It may flow as a matter of principle.

MR KINTOMINAS: Your Honours, in my submission, that statement is correct and if it is not right it should be. Contempt of court is a criminal offence.

TOOHEY J: Well, if that expression is used to include breach of an order of a court, then what room is there for civil contempt?

MR KINTOMINAS: Your Honours, there are many things that seem, over the years, to have flowed in respect of the distinction between civil contempts and criminal contempts.

TOOHEY J: Yes, I understand that, but if you take that statement at its face value, what is there left by way of civil contempt?

MR KINTOMINAS: At best, a classification with no consequences in terms of procedure, onus or penalty.

TOOHEY J: You mean there may be some actions which simply do not constitute contempt of court, so they do not come within that statement?

MR KINTOMINAS: No, your Honours. The value of retaining a distinction - and there still could have been a distinction even if one takes that statement at face value. If your Honour is suggesting that if one takes that statement at face value then there is no room for a distinction at all, what I would be putting to your Honours is this, that there was a need to maintain the distinction because there had to be a justification for using a coercive power. One could not use a coercive power in all situations in a criminal case. One could not coerce the defendant or an accused of giving evidence. I appreciate that he was not competent to give evidence but, in my submission, the classification of a civil contempt was useful merely to explain that the court had the power to coerce people into doing what the court wanted.

TOOHEY J: Take the case of the journalist who refuses to disclose a source in relation to some proceedings, whatever they might be, if the judge directs the journalist to answer and the journalist refuses, where do you place that in your classification?

MR KINTOMINAS: Assuming that he has to, then it would be contempt but one would have to be satisfied beyond reasonable doubt that he was committing a contempt. So that if, for example, he said, "Well, I did say in the paper that somebody had told me this but I actually made it up.", then one would have to be satisfied beyond a reasonable doubt that his explanation was false and there actually was a source to reveal.

TOOHEY J: Once you say that you are really getting away from any distinction based upon the nature of the proceedings. At one point it might be thought that civil proceedings give rise to civil contempt in the way you are putting the argument. But you are not saying that, you are saying it depends upon a variety of considerations.

MR KINTOMINAS: Your Honours, at the end of the day the difference would be that - whether it was a civil contempt or a criminal contempt, it would be my submission that both of those are criminal offences. In the case of a civil contempt the court will, in a number of cases, before it actually decides to punish the offender decide that it will commit him to prison as a means of forcing him to purge his contempt by doing whatever it is that the court wants. That kind of an order for imprisonment is open-ended.

It is not a feature of the criminal law as far as punishment is concerned, or as far as I am aware, that one can be committed indefinitely to the Governor's pleasure. I am not sure that that is something that can be done any more. One is sentenced to a finite term of imprisonment. But if it is a civil contempt then a procedural difference flows that one may be interned indefinitely or until further order of the court. It is a matter of explanation.

BRENNAN J: Take the case of a plaintiff who says, "The defendant took my chattel. I sue in detinue. I want a specific order for restitution". The order is made. On the balance of probabilities the defendant has the chattel.

MR KINTOMINAS: Yes, your Honour.

BRENNAN J: The defendant says, "I have not got the chattel and you cannot prove it beyond reasonable doubt". What happens?

MR KINTOMINAS: In my submission, in that case, he cannot go to gaol and he cannot be put in gaol until he returns the chattel. The defendant is left to try - I am not sure whether one can levy execution in the case of detinue. Your Honours caught me slightly on the hop in that regard. But until the chattel was discovered the defendant would be without a remedy.

BRENNAN J: The plaintiff would be.

MR KINTOMINAS: Yes, the plaintiff. I am sorry, your Honours. The plaintiff would be without a remedy. Indeed, your Honours, that is perhaps the sort of example which would show that if there was a justification for sending somebody to prison the justification more lies in defying the court rather than frustrating the plaintiff in a minor property matter. It is not so much that the plaintiff is not going to get his property. What really would matter more in that situation would be the defiance of the court. If you are not sure that he is defying the court or you are not satisfied beyond reasonable doubt, the difficulty - - -

McHUGH J: But criminal contempt is never dependent upon defiance of the court, Mr Kintominas.

MR KINTOMINAS: No, your Honour.

McHUGH J: The interference with the administration of justice is sufficient.

MR KINTOMINAS: Yes, your Honour. Your Honours, why should there be an exception for some branch of contempt? If somebody is accused of murder, the tribunal of fact has got to be satisfied beyond reasonable doubt. If he is accused of treason, the tribunal of fact has got to be satisfied beyond reasonable doubt. In fact, if I am not mistaken, I think you need more than one witness.

If he is accused of littering in front of the High Court promenade, the tribunal of fact would have to be satisfied beyond reasonable doubt, jaywalking or whatever, and what is being put forward is that if the offence is some species of contempt of court it should be a lesser standard. The question to be asked, in my respectful submission, is, "Why?".

BRENNAN J: The answer to that question is because it is the way in which the innocent party obtains relief at the court's hands and in relief of the necessity for self-help.

MR KINTOMINAS: Then, in my respectful submission, your Honours, it is not a justifiable and maintainable distinction.

McHUGH J: Why not, if it is remediable?

MR KINTOMINAS: Your Honours, if it is remediable begs the question as to whether or not the person being sent to prison is capable of remedying the situation. It presupposes his guilt.

McHUGH J: Presupposes breach.

DEANE J: Is your answer not that if it involves imprisonment or a fine it may be remedial, but it is also punitive?

MR KINTOMINAS: Yes, your Honour, and, indeed, Mascolo makes the point in his article that it is a fairly sterile argument to say that it is remedial. It overlooks that it is punitive, but nevertheless one comes back to a rationale: if we do not put people in imprisonment for punishment without being satisfied beyond reasonable doubt, why should we put them in prison so that they can undo something that they are supposed to have done or the other way round?

McHUGH J: Because in one case you are solely concerned with punishing a past act which has no future consequences, but in the case of remediable proceedings you have got another interest to protect, namely, the interests of a plaintiff or defendant, as the case may be.

MR KINTOMINAS: I certainly accept that the plaintiff has an interest but it still would be my submission that there is also an important consideration in not sending people to prison in cases where there might be a miscarriage of justice.

BRENNAN J: Your answer really does not go any further than what Justice Deane put to you, does it? Once you have the prospect of a penalty of imprisonment or fine you have got so serious a consequence of the finding that it ought to be made only beyond reasonable doubt. Consideration on the other side is that may go in diminution of the relief which the party, moving in the civil contempt proceedings, would otherwise be entitled to. The choice lies between those two.

MR KINTOMINAS: Yes, your Honour.

McHUGH J: Even so, in a case like this though, that if the solicitor - and there seems to have been some question about the solicitor in this case - if he had been guilty of contempt by assisting your client to prepare a false affidavit then he would have been prosecuted for criminal contempt and the case against him would have had to be proven beyond reasonable doubt. He did not disobey any court order. The only charge against him could be for interfering with the administration of justice, would it not?

MR KINTOMINAS: I seem to recall that your Honours had referred to that - - -

McHUGH J: I think Justice Deane referred to it in the Mudginberri case.

MR KINTOMINAS: Yes, your Honour.

McHUGH J: The aider and abetter.

MR KINTOMINAS: My recollection, however, is that his Honour seemed to be taking the view that there was a very difficult proposition to maintain in logic.

McHUGH J: Take a case of the solicitor here; he would have to be prosecuted for criminal contempt, would he not, if he was guilty of anything?

MR KINTOMINAS: Yes, your Honour. That would, of course, create another anomaly if one had to accept that the civil onus was the correct onus in respect of my client.

BRENNAN J: Mr Kintominas, is there anything you wish to add to the submissions that you have put in your written argument?

McHUGH J: That is usually a hint that you should stop while you are ahead, Mr Kintominas.

TOOHEY J: It is usually a hint that you should stop.

MR KINTOMINAS: Would your Honours take a vote as to whether or not I am ahead. The only matter that I just raise now, and it is a matter for your Honours: I have seen from my opponent's outline of argument that he would be arguing, in the event that the appeal was successful, that there would be some retrial. I am happy to await and reply but if it is a matter that your Honours think I should address now, I am happy to - - -

BRENNAN J: It might be better in your reply, I think, Mr Kintominas.

MR KINTOMINAS: If your Honours please.

MR MASON: I hand up seven copies of our outline. I take it that is the correct number for the Court of five? It says nine in one document I have seen. Is seven sufficient?

BRENNAN J: Seven will be sufficient.

MR MASON: May I also hand up, for the assistance of the Court, the relevant extracts from the Supreme Court Act of New South Wales that deals with the assignment of venue with respect to criminal and civil contempt matters, the provisions of the Act being section 48(2)(i) which assigns punishment of contempt of the Court of Appeal and subsection (4)(a) which provides that:

This section does not affect -

(a) the powers of the Court in a Division in relation to punishment for -

(i) contempt in the face of the Court.....

(ii) disobedience to a judgment or order -

I have also included Part 55 which is the part of the Supreme Court Rules that sets out the procedures for dealing with both criminal and civil contempts in some cases without the rules clearly distinguishing between the two. For example, the rule about personal service, as one might expect, is spelt out in general terms as applicable to both. The expression "punishment" is used, as your Honours will have seen, to describe the process that is invoked with respect to both criminal and civil contempt. Probably nothing much turns upon that but I just draw that to the Court's attention.

This was a case of civil contempt according to the distinction that the law has for long recognised, and this Court has recognised in cases such as Australian Consolidated Press Ltd v Morgan. The passages are as set out at the bottom of page 5 of the outline. It was a civil contempt because it was a proceeding brought by a party to an order based upon non-compliance of that order, and because the facts proved and, indeed, alleged did not amount to contumacious and public breach of a court's order. "Breach of a court order" may, according to the authorities, be capable of prosecution as a criminal contempt but a level of contumacy and public scandal almost is, it appears, a necessary aspect of it.

So the offence or the wrong, to use more neutral language, alleged was within the category of civil contempt and my friend's case is an invitation to this Court to borrow from the criminal law a standard of proof of beyond reasonable doubt, and to insert it into what is a branch of the civil law. Accepting that there are some unusual features in the common law of contempt, that is a borrowing which, in our submission, the Court should not make as a matter of principle and also for policy reasons.

Your Honours, it is of some importance to note the time at which the standard of proof comes to be applied and was applied in this present case. His Honour Justice Hodgson, in proceedings which we submit, and I will develop this later, was at least in part coercive at the suit of the plaintiff, His Honour found the contempt, finding it was a contempt that operated to frustrate the rights of the plaintiff and obviously incidentally the processes of the court, but stood the matter over in order to give the defendant an opportunity to put submissions, but also to go some distance towards purging his contempt.

At page 89 near the top of the page, his Honour characterised the breaches found in line 4 as:

The overall result was a complete frustration of the attempt of the Court to ensure that justice was done to the customers of the defendant.

And then in the next sentence he indicated his reason for standing the matter over before deciding whether or not to impose a jail sentence.

Now, your Honours, it is not entirely clear from my friend's submissions at what stage he would contend the higher standard would descend. Is it, as it were, from the outset of proceedings and, does it depend upon what the predominant motive of the prosecutor was at that stage, or does it depend upon how the court viewed the matter at the outset of the proceedings? Does it depend upon the way the court perceived the matter at the time of its finding, because that is at the stage where the lower standard was applied, or does it apply, and if so, upon what procedural basis, at the sentencing stage, and how can one, in effect, have differing standards depending upon the sentence to be imposed, which is the way the American law suggests they have gone? And that is quite unsatisfactory, in our submission.

McHUGH J: But is it not unsatisfactory, also, if you take the case of the solicitor? If he had been involved in assisting the appellant to breach the orders; it could only be a case of criminal contempt against him, could it not?

MR MASON: Yes, and it would require proof of knowing assistance. It may be said, of course, there is necessary to be proved against the appellant that he knew of the order which was being breached, but knowing assistance does go, arguably, a bit further. I accept that that would have to be with as a criminal contempt. The matter is discussed in Scott v Scott and in a passage in Mudginberri that your Honour has referred to. It is perhaps an anomalous consequence of the distinction between civil and criminal contempt, but it is not enough to tear down the whole edifice that presently exists with respect to the law of civil contempt, particularly when it is not possible to put back, in our submission, a workable and viable alternative.

In very brief terms, our submission is that the law of standard of proof with respect to civil contempt "ain't broke and it shouldn't be fixed", and the American experience shows the difficulties in attempting to fix it and the anomalies, the funny distinctions and the capacity to generate litigation that those distinctions involve.

DEANE J: That is a philosophy of never improving anything.

MR MASON: No, it is not, with respect.

DEANE J: But if it is not "broke" you do not try to improve it.

MR MASON: No, it is certainly not, but it is a philosophy of caution appropriately applied to judicial reform.

DEANE J: Or, if you are saying, "It is not broke. You think carefully before you seek to improve it", I would have no problem with it, but to say that if something is not broken you do not try and improve it, strikes me as one of the most negative propositions one could hear.

MR MASON: There are perhaps two propositions borne in the statement: one is to question whether there is anything wrong in the existing law and, secondly, to question the difficulties in improving it.

DEANE J: I am being largely facetious, Mr Solicitor.

MR MASON: No, I would submit that what would be involved in judicial reform of this principle is productive of difficulty that at least I should point to the Court as, in my submission, a disincentive from doing so when, in my submission, the status quo "ain't broke".

BRENNAN J: Then perhaps the status quo can answer that series of questions you asked rhetorically a few minutes ago about at what stage is the test applied.

MR MASON: Yes. I did not ask what your question was, I am sorry.

BRENNAN J: My suggestion was that if it "ain't broke" then no doubt the present rules answer those series of rhetorical questions that you put.

MR MASON: Yes, they do and, in my submission, the answer that it gives is that if the objective nature of the wrong alleged is civil contempt, and by that I mean it has got to be a breach of an order or undertaking, but not of a nature of contumacy and public scandal as to make it capable of being shown to be a criminal contempt, if it is alleged and proved at the lower level, then the standard remains the civil standard with the Briginshaw principle throughout and regardless of the motive of the prosecutor, the purpose of the court or the penalty that is imposed.

BRENNAN J: But the problem arises and the questions are the most difficult to answer when the conduct partakes a little of both characteristics.

MR MASON: No, because if it is not prosecuted as a public contumacious defiance of an order then the court cannot properly find and punish it as such and in the present case there is no suggestion that his Honour treated this other than as a civil contempt because there was no question of this being a public defiance in the sense that, for example, a trade union challenged the authority of the court through public protesting - I use that just as an example - and nor was there on the findings a level of mens rea that rose beyond reckless or intentional or perhaps said wilful, but certainly it was not contumacious in the sense that a distinction is drawn.

So there is no question of this case sliding across the line between what I have described as the objective features of civil and criminal contempt and the question remains whether the civil law should borrow a criminal standard for that category of proceeding.

GAUDRON J: Mr Solicitor, could I take you back to something you said earlier about appropriate regard being had to the Briginshaw v Briginshaw test. But I really do not see how it fits in in an ordinary case unless you are, in fact, saying that the consequences of being found guilty are such that you really ought to elevate the standard. I can understand it if you are talking about some particular allegation of a very serious nature, which is the ordinary way in which Briginshaw is applied, but if you are just talking about an ordinary case I do not understand it at all.

MR MASON: Certainly in Briginshaw or Helton v Allen the bottom line is a money order. So in terms of what the Court actually does, the consequences do not change, even though the finding of the court may be en passant that a person has committed a crime. I do accept that there is ultimately, obviously, a distinction between a money order and a go to gaol order but built into the Briginshaw principles and carried across this area by cases such as Jendell and Peek, are a principle that heightened scrutiny is appropriate, having regard to a number of factors. One of them is the consequences of the order which, obviously, in that case is the perception that is created by a finding that, "Yes, you did murder the deceased and for that reason you will not get probate". The consequence at a formal level is the same but at a realistic level is different.

GAUDRON J: Yes, but that depends on the nature of the factual issue to be determined in a case like that. Let us say the only question is whether or not the person has the chattel, for example. How does Briginshaw come into it?

MR MASON: I would submit that the standard does not change, it does not become beyond reasonable doubt, but the principles behind the Briginshaw idea properly direct the court to be conscious of the consequences of the finding of breach which may well be imprisonment.

GAUDRON J: All of that seems to suggest that maybe it is broken.

McHUGH J: The problem is that there are only two standards of proof: balance of probabilities and proof beyond reasonable doubt. I know Briginshaw is cited like it was some ritual incantation. It has never impressed me too much. I mean, it really means no more than, "Oh, we had better look at this a bit more closely than we might otherwise", but it is still a balance of probabilities in the end.

MR MASON: I accept thar, and this Court has made that plain in Neat's Case quite recently. It does no violence to the accepted principle that there are two standards to say that the application of the lower standard in certain cases ought not to occur without due regard to the consequences of that application. In another context, Sir Owen Dixon said that the difference in effect between the two standards was not as great as sometimes represented, Wright v Wright [1948] HCA 33; 77 CLR 191 at 210. Depending upon whether one - I will not develop that.

Your Honours, I do submit that the existing law is not broken because it necessarily deals with contempt that can take many forms and have many potential consequences. It may, as the example of the detinue that was given in argument, apply to a very simple breach; a very clear issue. It may not be clear to prove but it is a discrete act that is easily defined and may be established either on the criminal or the civil standard, but because of the interest of the other party to the litigation, which is always a factor in civil contempt proceedings, to apply the criminal standard necessarily involves some diminution of that party's rights in the vast number of civil contempt cases and to elevate the standard, at least without indicating at what time the higher standard applies, and with respect to what range of punishments and with respect to what level of predominance of motive of the court or the party, must necessarily take from the innocent party rights in the process of conferring rights upon the defendant.

In my submission the existing law correctly holds the balance and should not be changed.

BRENNAN J: Mr Solicitor, is the remedy of sequestration available for criminal contempt?

MR MASON: I think the answer is no at common law, but I am not sure whether that is the case under the Supreme Court Rules. Part 13 of the Supreme Court Rules provides that:

Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both.

BRENNAN J: Yes.

MR MASON: The effect of Part 55 is, in some respects, to vary the common law of contempt. It is the fact that there has been legislative intervention, for example, through Part 55, and that legislative intervention has been recommended by the Australian Law Reform Commission in its report on contempt. I appreciate in some cases that may be a reason why the Court would be more readily persuaded to improve the law. On the other hand, the complexity of the exercise and the fact that reform would descend upon a field where there is already a dotting of legislative intervention may be a proper basis for judicial restraint.

While I have the Rules, I would also direct the Court's attention to Rule 14 which provides, and again provides with generality, that:

Where the contemnor is committed to prison for a term, the Court may order his discharge before the expiry of the term.

That would apply with respect to both criminal and civil contempts and has the capacity of applying in the present context. Having said that, I do not shrink from there being a punitive function in the orders that were made in this present case, but I do dispute that that is the sole function, but I will come back to that.

Your Honours, like my learned friend, I will not take you through the cases that are referred to in paragraph 5 of our outline. We would respectfully adopt the analysis of Mr Justice McLelland in the Jendell Case, where he demonstrated, in our submission, that the English law took a sudden and unprincipled change in Bramblevale's Case in 1970; and where he also demonstrated that a number of the cases that are referred to - a number of the other Australian cases - are not cases of civil contempt or cases where there was an uncritical following of the English principles.

Just very quickly on the question of the authorities. I appreciate that in this Court it is not a head-counting exercise in relation to authorities of the other courts, but we do, in paragraph 5 of our outline, seek to demonstrate that a number of the cases that are said to be authority for the contrary proposition really rely upon decisions of criminal contempt or involve the third party situation that your Honour Justice McHugh was putting to me.

I am reminded that in Scott v Scott ,which is not on, I think, anyone's list, the House of Lords suggested that perhaps the anomaly is addressed by treating the aider and abetter according to the civil standard, rather than changing the general civil law to the criminal standard.

BRENNAN J: What is the reference to Scott v Scott?

MR MASON: It is (1913) AC. In paragraph 4 of my friend's outline of submission, he cites a number of cases where the criminal standard is applied. We would simply say of those cases, or some of them: the Sun Newspapers Case was a case of criminal contempt; in Miller v TCN Channel 9, Justice Hunt assumed that the higher standard would apply and then proceeded to apply it; Historic Buildings v Brenchley, 71 Local Government Reports of Australia 282, and there also the higher standard was assumed rather than found as a matter of analysis of principle.

Your Honours, in paragraph 6, we offer our submissions as to the English authority. In 6(b), we seek to join issue with the starting point of the analysis in Bramblevale that a contempt of court is an offence of a criminal character because a man may be sent to prison for it. That seems to be the reasoning in the case of Maria Annie Davies that my learned friend relied upon as well. But, in our submission, it is well established and I do not understand the Court to be invited otherwise that contempt of court may take a civil form and that at least some of the principles relating to civil litigation apply.

Both in England and America, where the higher standard has been adopted, the courts have nevertheless continued to apply many of the aspects of the civil law which itself is, in my submission, an unprincipled dichotomy or distinction. The English cases are referred to in paragraph (c) on page 3; I will come back to the American ones, if I may.

Your Honour, we accept, in the light of the authorities that are referred to in paragraph 7 that you may have a civil contempt case that starts off as civil or predominantly civil but by the time the court deals with it it is predominantly punitive. A party may seek to have a very specific order of a negative nature enforced. During the currency of the proceedings the defendant breaches it, the party, in effect, gives up and the court says, "Well, we still think it's appropriate that there should be a punishment imposed because the contempt strikes at the administration of justice, as well as the rights of the party.", and the English cases referred to at the bottom of page 3, which were cited in Mudginberri, would indicated that in that situation the court may impose a fine or a fixed sentence in order to vindicate the due administration of justice.

But those cases, perhaps like the present, illustrate the dilemma of a trial where the standard may change over time, according to some of the approaches adopted by my friend, or having regard to the differing motives, one asks, "Of whom?". Is it the attitude of the judge that is determinate or that of the prosecutor? What if the motive is a mixed one at various points of time? It is not an appropriate basis upon which to draw a distinction unless - and as my friend, I think, would argue - the whole of the law of civil contempt be treated as criminal, at least for the standard of proof.

In our submission, not even the American law has gone that far, and to do that will bring about countervailing and inappropriate disadvantages to the beneficiaries of court orders, and that is what we seek to develop in paragraph 8. Paragraph 8(2) argues the point that I think I have addressed, that to the Briginshaw standard, whether or not as a matter of true principle applicable in this situation, the idea has been carried over, and it provides an appropriate level of protection. I am not saying that the two standards are the same, but we are submitting that the difference is not a great one, particularly in the context of a jurisdiction administered by judges. The American law is affected by the constitutional right to trial by jury in criminal matters and, again, I will come back to that case that is cited there, if I may.

The second reason why, in our submission, the existing law is appropriate, is the interest of the beneficiary of the judgment and the need, in most cases of contempt, for speedy and effective vindication of that party's rights. One approach that my learned friend would have the Court take is that, if gaol, or perhaps a fine, is the order of the court, the higher standard should apply. In the article by Mr Mascolo, he argues there that if gaol, it is the higher standard but if a lesser penalty, it is the lower standard and the judge, at the end of the day, can say to the person, "Well, if I am convinced beyond reasonable doubt that you have done it; off to gaol, but, if not, I will fine you".

But, in our submission, gaol is just as oppressive to the - almost, dare one say, one hopes - contemnor who is imprisoned for a coercive function, as to the contemnor who is in prison for a punitive function. To look at it from the point of view of what that person suffers, there is no distinction. Why, therefore, should the sanction of gaol, or perhaps, also fine, be the discrimen upon which the issue turns?

BRENNAN J: The answer to that may be, because in the case of the civil gaolie, that he knows that he is there only so long as he chooses to be there.

MR MASON: Because of the "key in the pocket" notion.

BRENNAN J: Yes, if one adopts the American analysis.

MR MASON: Yes, but in the case of the civil gaolie who is there as a matter of principle, he or she would say, "Why should I go at all when I dispute that it happened and it has not been proved against me that it did happen to the requisite standard that other goalies suffer?" And why, in my submission, should the law import a criminal standard that varies according to the sanction? If it does, there will need to be some line drawn by the courts or legislators which says, "If gaol, this; if not, or if a fine, this; if not, what about a costs order? What about a finding of contempt made against a solicitor?", which could destroy that person's career. "What about a default order for breach of a procedural direction?" It surely is not contended that the criminal standard should apply there but, if not, we would respectfully ask, why not?

May I with reference to paragraph 8(3) just read one short paragraph from an article by Moskovitz. The article is quoted in Millers Contempt of Court at page 3 and the article is called "Contempt of Injunctions, Civil and Criminal, 1943 43 Columbia Law Review 780". It is only two sentences:

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 realised that the remedy, the injunction, is worth no more than its sanction, contempt.

So ultimately rule of law principles are involved and lie behind the law of civil contempt and, as your Honour Justice Brennan mentioned earlier, the fear of self-help also is part and parcel of that same notion and if the criminal standard is applicable then there must necessarily be a diminution in the rights of the civil beneficiary of a civil order. Your Honours, in paragraph 8(5) we seek to make good the proposition that the mere fact that the outcome of a particular case may involve liberty of the subject is not regarded as a universal basis for importing the rules of criminal procedure or I perhaps should have said criminal standard.

We have offered the Court the example of habeas corpus where, according to the House of Lords, the English version of Briginshaw applies there and we have, your Honours, copies of the West Australian case, which I do not think the library has. I will hand it in, if I may, to the associate. In that same context, could I give your Honours one other reference. It is Reg v Schafferius, a decision of the Queensland Court of Criminal Appeal, (1987) 1 Qd R 381, where the question of detention of a person who was of unsound mind and dangerous, to put it compendiously, proceeded upon the Briginshaw standard, not the criminal standard, according to the court.

The civil criminal difference as regards penalty, for example, starts to become a little anomalous in the Trade Practices Act context where penalties recoverable in civil proceedings can range up to $10 million. Your Honours, paragraph 6 I think I have developed. May I add a further reason and it is really replying to something your Honour Justice Deane said this morning when you suggested perhaps that orders of a court and the breach thereof may be more likely to involve simple issues.

I may not have correctly understood you, but you gave an example of an order that was a simple issue. In our submission, that may be so, but not necessarily so. Breaches of court injunctions may involve complex issues, they may involve simple issues, and it is not necessarily a basis upon which the principle should turn, although in American law it appears to do so and may I at this stage take you to the American Supreme Court case of International Union, Mine Workers of America v Bagwell [1994] USSC 43; (1994) 129 L Ed 2d 642.

What was at issue in this case were whether jury trial should have been held for the imposition of contempt fines of over $52 million against a trade union for what are described in the headnote as:

widespread, ongoing, out-of-court violations of complex labour injunction

The judgments of the court as well as the single concurring judgments discuss at some length the way in which one can characterise, for the purpose of this constitutional principle of trial by jury, whether these proceedings were civil or criminal. There is discussion about the punitive and coercive aspects and at what point of time they applied.

There is the question about what was going to happen with the fines. The fact was that the bulk of the fines went to the Commonwealth of Virginia rather than to compensate the party who had obtained the orders that were broken. The court clearly was of the view that at the end of the day these orders of this magnitude and for this purpose and having regard to this type of contempt - which I interpose by saying would have been a criminal contempt under Australian law anyway - deserved trial by jury before they could properly be imposed.

At 652 in the judgment, the court did however draw distinctions based upon the punitive purpose, although they recognised there may be a dual purpose, but at the bottom of 652 in the right-hand column it is said:

By contrast, a fixed sentence of imprisonment is punitive and criminal if it is imposed retrospectively for a "completed act of disobedience" such that the contemnor cannot avoid or abbreviate the confinement through later compliance.

That is a very absolute proposition. It is one that, with respect, we would say is not the Australian law, but the words "avoid" or "abbreviate" are perhaps a distinguishing feature from the present case. It certainly points up the difficulty of the overlapping aspect of contempt that I have sought to develop.

There is a distinction drawn by the Court at page 656 that shows the clarity of the principle starting to break down because - and it is similar to the proposition that your Honour Justice Deane was, I think, putting earlier on. It is 656 in the left-hand column and it is from about line 5 down to about the middle of the page on that left-hand column where the court seems to be saying that in respect of:

discrete, readily ascertainable acts, such as turning over a key -

then civil proceedings are okay but for other indirect contempts:

involving disobedience to complex injunctions -

which:

often require elaborate and reliable factfinding -

criminal process is appropriate.

That is, as it were, one slice of the onion that is additional to what might be a simple dichotomy of punitive versus coercive. But there is another slice at page 659 at the end of the leading judgment, at the very bottom of the left-hand column where it is said that:

Because the right to trial by jury applies only to serious criminal sanctions, courts still may impose noncompensatory, petty fines for contempts such as the present ones without conducting a jury trial.

So there is another distinction being offered here which relates to the level of punishment. That latter point seems to reflect the argument of Mr Mascolo in the article that your Honours have been given, and I will not read the passages, but it is at pages 295 to 297. Mr Mascolo says, in effect, the individual's liberty interest is such that for going to gaol it must be the criminal standard and presumably that is for going to gaol whether for a coercive or a punitive purpose. The American Supreme Court adopts this distinction as well, or suggests this distinction, at least in the context of jury trial.

In our submission, it would be quite unprincipled to have a borrowing of the criminal standard, (a) into a civil context, and (b) where that borrowing only applied to some sanctions. It would be not only unprincipled, but it would be anomalous that the standard would change, depending upon what the judge had in mind, or depending upon at what point of time the judge had a particular punishment in mind, or a particular purpose in punishing. It is much more appropriate and principled and better, in our submission, that the present principles be adhered to.

May I turn, finally, to paragraph 11 of our submissions where we seek to develop the submission that in the present case the respondent's primary purpose was and remained one of seeking compliance with the original order. As your Honours know, there were two orders in this present case, there was a Mareva injunction and there was an order that an affidavit be filed in aid of the Mareva injunction. It was in aid because it would, in effect, help the beneficiary of a Mareva injunction enforce it, not only against the defendant but perhaps against third parties.

The appellant's conduct operated to frustrate the orders and the intent of the orders, and that poison, as it were, continued to operate because the respondent who had brought these proceedings under a statutory power under the Fair Trading Act with respect to very serious pattern of conduct based upon breaches of section 42 of that Act - the equivalent of section 52 of the Federal Act - brought civil proceedings, in effect, on behalf of a whole number of consumers who had engaged the appellant who had a home removal business under contracts that provided for significant down payment at the commencement of the contract. The payments were made, the houses were jacked up and the appellant moved on to other contracts, took other deposits and left these houses jacked up.

The respondent brought, under a statutory class action type procedure, whereby he could bring proceedings - Mr Holloway, the Commissioner for Consumer Affairs, brought these proceedings to recover on behalf of this disparate group of people damages for the loss they had suffered, the misrepresentation, in effect being that the appellant had the capacity to do the business that he was engaging in over a long period of time where he had, in effect, put it out of his capacity by moving on to other jobs.

But there was an application for a receiver. The receiver order was refused or discontinued - I cannot recollect which - and a Mareva injunction imposed with this affidavit procedure pertinent to it. So the purpose of the Mareva injunction is, as the Court knows, in aid of the ultimate recovery of the substantive judgment which was, in this case, $375,000. If the appellant had reduced his assets to nil, as he claimed, but which the respondent did not accept, then he had defeated the purpose of the main proceedings but, also, defeated the Mareva injunction and its function.

So the contempt proceedings, when commenced, were very much part and parcel of seeking to recover from the wreck the benefits which the Mareva injunction and its pertinent affidavit order were designed to confer upon the respondent. At the time, Justice Hodgson found the contempt proved, it was very clear, in my submission, in his judgment, that there was still hope. Whether that hope was founded or not, in a sense, is yet to be proved but, at page 89 at the top of the page, he expressed the effect of the contempt and, in the main paragraph, the purpose of standing the matter over and, as it were, putting the Damoclean sword or the gaol sentence over the head.

It is said that, at this point of time, his Honour misdirected himself in finding the contempt. In our submission, if this is the critical point of time, this was a coercive remedy or at least a mixed coercive - I should not say "remedy". This finding was made in a coercive context or, at the very least, a mixed coercive punitive context.

It is true that there was an ineffective - as the second judgment shows. The second judgment starts at page 95. There had been what he found to be an attempt, but not a very good attempt, to provide the affidavit. His Honour, at page 105, in the middle of the page said:

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.

Now, it is certainly true that by the time of the second judgment his Honour was saying enough time is enough and clearly was imposing a sanction with punitive purpose, but not sole punitive purpose, in our submission, and if it is on 22 April 1992 that the standard of proof changes then our submission is that at that point of time there was a mixed purpose in the order. It may be that one can argue about what was the predominant purpose at that point of time, but having regard to Part 55 rule 14 of the Rules, the fixed order, the fixed one month, was still capable of being discharged were there a belated and appropriate remedy. I am not saying it would have been or would have been in total, but that was the scheme of things. The passage in Scott v Scott to which I was referring your Honours, it is (1913) AC 417 at 456 and 457.

Your Honours, the final matter is the further disposition of this case if the Court upheld the appeal. We submit there is absolutely no reason why the Court would not remit the matter. If there has been a misdirection and if this is criminal, then the ordinary situation would be that there would be a retrial.

It is very clear on a reading of his Honour's judgment he is not saying, "I am satisfied to the civil standard and no more." He simply directs himself the civil standard applies and applies it. While this Court is not on the papers really in a position, and we do not invite the Court itself to find the matter, there is sufficient material to show that the contempts that were established were specific and clearly proved and the passages that we refer to are at 76 and 83 to 87 of the judgment.

Some aspects of the contempts were very clear and, in our submission, clearly proved, but this being a civil case or even if a criminal case, it was at most a misdirection. The law, if the appellant succeeds, will have been held to be changed, at least in New South Wales. The seriousness of the matters at stake are such that the matter should be remitted, in our submission, to the Supreme Court for further determination if the Court holds that the standard is the criminal standard. If the Court pleases.

DEANE J: Simply to the Supreme Court as distinct from the Court of Appeal or a single judge? What happens if we simply remit it to the Supreme Court?

MR MASON: As matters presently stand, because of the pendency of this appeal, the sentence has been suspended and if the appeal were dismissed the matter would go back before the Court of Appeal that would, in effect, start the clock running. But if the matter were to go back, it would clearly be appropriate to go back to the Equity Division. Indeed, we would submit this is a case where it is appropriate that it should go back to Justice Hodgson. There are sometimes cases where it ought to go back to a different judge but in our submission, there is no reason why it should not go back to him.

TOOHEY J: But it would not be appropriate for us to order that it go back to a named judge.

MR MASON: No, I am not asking to do that. To cut a long thing short, it should be remitted to the Equity Division of the Supreme Court for further determination but in such a way as to make it plain there is no prohibition upon Justice Hodgson revisiting the matter, unless there is some reason why he should not, personal to himself. If the Court pleases.

BRENNAN J: Thank you, Mr Solicitor. Mr Kintominas.

MR KINTOMINAS: Yes, may it please your Honours. Your Honours, in respect of the issue that my friend raised as to when does one determine the purpose and whose purpose, so as to determine whether to apply the civil onus or the criminal onus, in my submission, firstly if the criminal onus is to be applied in the first place, then the argument becomes irrelevant.

If there is scope for both a civil onus and a criminal onus then in my submission it would be clear that at the time that the order for imprisonment is going to be made, then if the purpose of the imprisonment is only penal or punitive, then the criminal onus should apply.

McHUGH J: But take this case. Are there not real problems about it. This case is proceeding on the basis that it has remedial aspects as well as punitive aspects and your client can discharge the contempt or purge his contempt by putting on an affidavit giving fuller details of assets. Now findings are made at that stage and then ultimately he does not put on a proper affidavit. What is the judge then to do; make some retrospective findings, applying a different standard of proof at an earlier stage?

MR KINTOMINAS: Well, your Honour, certainly in this case I would disagree with my friend that there was a mixed purpose at the time that the order for imprisonment was made. Firstly, on a common sense level, one would not have thought that a month's imprisonment was likely to so scare somebody as to return $200,000 or $300,000 if that was what was really going on. Secondly, his Honour expressed it in terms of a punishment, did not offer any further remission and clearly in his Honour's mind, it was now time for punishment and nothing else.

Perhaps, your Honours, if I could just give another illustration. I think my friend put on his list an article in The Modern Law Review of 1962. That article is called "Civil and Criminal Contempts of Court". I notice on page 184 there is this example given, it is a Canadian case called Poje v Attorney-General of British Colombia. What apparently happened in that case from what I can see of the summary, is that there was a civil case where a contempt was said to be committed and the parties settled between them before an order for attachment could be issued.

Now that is a clear case where the parties having settled, there is no longer any interest in the other party in the enforcement of the order.

Indeed, the Judge of Appeal is quoted in the article - and it is noted that, "the court proceeded ex mero motu", and the Judge of Appeal says:

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.

Let us assume that, in that case, you now no longer have a consideration of the rights of the other party. It really would be, in my submission, totally illogical to proceed there, for example, on an onus other than a criminal onus, whatever the original classification of the contempt that gave rise to it. In any event, your Honours, in this situation, in my submission, it is clear, from the remarks of his Honour, that he is just proceeding purely on punishment.

As to what your Honours should do in the event that the appeal is upheld: your Honours, I would firstly submit that there would be some doubt about the Court's power to remit it in the way that my friend claims. If your Honours come to the view that this is a criminal offence, and in my submission the practice at common law before the Criminal Appeal Act came into England, was for the judges to consider appeals made on misdirections made in criminal cases, but they never ordered any retrials and, indeed, when the Criminal Appeal Act was introduced in England originally, as I recall it, there still was not any power given to Court of Appeal to order a retrial, although I think that that has been remedied in England recently.

In New South Wales the Criminal Appeal Act, of course, did give that power, but this is not a criminal matter which has come up through the Criminal Appeal Act, and there are no powers of the Criminal Appeal Act for this Court to exercise. But even if I am wrong as to the question as to whether or not the Court has the power to remit the matter, in my submission, this is a matter that the Court should not remit for the following reasons. The sentence which was imposed was one month. It therefore follows, in my submission, that the maximum sentence that the appellant ought to face, in the event of a retrial and a conviction, is one month. If that were not to happen, the public perception would be that he was penalised for appealing, and there would be manifest unfairness.

The Court ought to consider that he has had to bring this case to this Court; that he had to appeal to the Court of Appeal; that he was unsuccessful in the Court of Appeal and he has had to bring the case to this Court. Admittedly, if he does win he does seek costs, so, to that extent, he is indemnified, if costs are granted, against the cost of bringing the proceedings but, nevertheless, the Court would also take into account that time has passed and there has been, quite obviously, a certain amount of worry and emotional turmoil on his part. It seems to be a very small matter in terms of one month's imprisonment to have the matter remitted, and have the process gone through again and I would ask the Court not to do that. If the respondent wishes to bring further proceedings, well that can be resolved at another time.

GAUDRON J: I do not follow that: if the respondent wishes to bring further proceedings. What are you suggesting, that they can reinstitute proceedings for the same contempt?

MR KINTOMINAS: In my submission, a reinstitution of proceedings would be just persecution. The matter has reached here and it should finish here. If your Honours are of the view that Mr Justice Hodgson was correct, then he will return to the Court of Appeal, and his sentence will start some time in the new future after your Honours give the decision. But, if your Honours come to the view that Mr Justice Hodgson was not correct then that ought to be an end to the matter.

BRENNAN J: What is the form of order which you would seek from this Court?

MR KINTOMINAS: I would be seeking that the order committing him to prison, which has been stayed, be quashed and, of course, an order for costs.

TOOHEY J: The orders you seek are set out in the notice of appeal, are they not?

McHUGH J: They are in paragraph 3.

MR KINTOMINAS: Yes.

TOOHEY J: On page 121. Is there any variation to those?

MR KINTOMINAS: No, no variation to those orders. My friend made two further points which I briefly wish to answer. Firstly - - -

DEANE J: Before you depart from orders, if you were to succeed in the appeal but were not to succeed in persuading the Court that the matter should be finally brought to an end here, would you agree that the form of order should be that proposed by the Solicitor, in other words, that the matter should go back to the Equity Division of the Supreme Court? I am not suggesting you should not disagree. I am just asking whether you have anything to say against that.

MR KINTOMINAS: I have some difficulty, your Honours,

in answering that, for this reason: In the back of my mind I know there are some provisions for the Court of Appeal dealing with criminal contempts but I think that that is in respect of a certain class of contempt in which this does not fall. I just do not want to agree willy-nilly to something in case I am wrong, but if I am unsuccessful in persuading your Honours that the course of action that should be taken and your Honours agree with the learned Solicitor, then it would seem that going back to the Equity Division would be correct.

Indeed, it going back to Mr Justice Hodgson would have, in one way, a benefit of shortening the proceedings because another judge would obviously have to rehear it afresh. On the other hand, that does not mean that it is still fresh in Mr Justice Hodgson's mind as considerable time has elapsed. There may be other considerations in terms of the propriety of the same judge hearing it again after having made a ruling adverse to the appellant of this kind. Subject to that, I would concur that a remission to the Equity Division sounds as if that would be the best available option.

The two other matters that I wish to briefly reply on was my friend's identifying the issue of the interests of the other party. Perhaps if I could illustrate it this way in reference, again, to the detinue proposition that your Honours put to me in argument before. Let us assume that one had a case where somebody was suspected of stealing a particular article and he was put on trial. The judge gave a direction to the jury that if they were satisfied that he probably took it they could convict him, and he was duly convicted and sent to prison. Then there is an appeal. The Court of Appeal says, quite properly, the wrong standard of proof was applied - there was a misdirection. You cannot convict somebody of a criminal offence on the basis that he probably did it, and he is acquitted.

He is then retried, the right direction is applied and he is acquitted. The owner of the goods then brings the civil action. There is a finding that he probably took them on the basis of probabilities and there is a detinue order made to return them. He says, "I cannot return them because I have not got them". So then you put him in gaol because he is not complying with the order of the court.

That scenario, in my respectful submission, shows what an absurd proposition it is to try and draw differences. As your Honour Justice Deane said in Hinch, contempts are quasi criminal in nature and the point arises, really, very squarely as to whether or not when one is proceeding to punish for contempt whether it is at all meaningful to avoid the classification of that proceeding as a trial for a criminal offence. Those are my submissions, your Honours, unless I can assist the Court.

McHUGH J: We did not stop you, but you may have been under some misapprehension. Did you put everything that you wanted to put in-chief, and have you put everything in answer to the Solicitor-General's submission?

MR KINTOMINAS: Your Honours, in respect of the analysis of the cases - again, your Honours, I recognise that obviously your Honours have a free and unfettered hand to decide the law for yourselves. I withdraw that. Your Honours, I referred to a number of unreported decisions in my submissions. I did photocopy those unreported decisions. It is not that I rely on any of those unreported decisions to expound the principles supporting my argument, but they do illustrate the division in the authorities throughout Australia. If your Honours wish to be supplied with the copies that I have made - - -

BRENNAN J: Yes, they can be given to the associate, thank you, and we will consider them.

MR KINTOMINAS: Your Honours, otherwise in respect of the authorities the point that I omitted to make and would prefer to make is this: my friend puts it to the Court that there was a right-hand turn, so to speak - I think they were his words - when Bramblevale was handed down. My submission is the right-hand turn occurs with Jendell v Kesby. Prior to that case there does not seem to be a case in a common law jurisdiction which squarely says that you would apply the civil onus. When I say the common law jurisdiction, I am not including America in that.

In my submission, the real answer for that state of affairs is this: generally in proceedings which are classified as civil contempt it is fairly clear cut as to whether or not the contemnor is guilty and the issue as to precisely what standard of proof should be applied just did not come up. In my submission, it does not often happen and perhaps that ought to be borne in mind in cases, particularly with my friend's case, who puts that it is sort of essential to maintain the integrity of the administration of justice in some way.

My contention is that it is a relatively small number of cases where there is really issue about the guilt of the contemnor and those persons, where there is doubt, should be properly protected by the standard of proof that I have contended for. In my submission that may well explain why there is just such a dearth of authorities specifically on the point for so many years beforehand.

It is indeed either that or as I contend, it was just not doubted that proceedings for contempt were criminal offences whether they were classified as civil contempts or criminal contempts. Those are the matters that I wish totally to put before the Court and I have done so. Thank you, your Honour.

BRENNAN J: Thank you, Mr Kintominas. The Court will consider its decision in this matter and will adjourn until 10.15 am on Tuesday next.

AT 12.32 PM THE MATTER WAS ADJOURNED SINE DIE