Contempt of Court: Report (html)

5. Procedure and penalties for contempt of court

Overview

• Contempt of court should continue to be tried by summary procedure.

• The proposed Act should specify the procedure, including safeguards to ensure that the person charged:

– knows the details of the case against him or her, including any evidence that will be relied upon

– is served personally and given the opportunity to consider the charge, seek legal advice, and prepare a defence

– has the right to provide and contest evidence to the extent permitted by the Evidence Act

– has the right not to incriminate themselves or expose themselves to a penalty

– is only convicted if the charge is proved beyond reasonable doubt.

• The proposed Act should specify when a person can be arrested and detained pending a contempt proceeding, and how other laws governing court proceedings apply to contempt proceedings.

• If a contempt is committed in or near a courtroom and interferes with a proceeding, the judicial officer may charge the person, including stating the facts alleged to amount to contempt, and must refer the charge to another judicial officer to be heard.

• The Attorney-General, the Director of Public Prosecutions, as well as any party in a proceeding or person who has the benefit of a court order, should be able to commence contempt proceedings. The Supreme Court should be able to direct the Prothonotary to commence contempt proceedings, and any party with a sufficient interest should be able to apply to the Court for such a direction.

• The proposed Act should specify that a court may consider an apology in deciding whether to commence or continue proceedings or determining any penalty.

• A court should consider the appropriateness of other procedures to deal with the alleged conduct before using its contempt power.

• There should be a maximum penalty for the general category of contempt of 10 years. The principles under relevant sentencing laws should apply. If a court imposes a penalty to compel a person to do something, it should still be able to reduce this penalty if the person complies, including early release from prison.

Mode of trial

5.1 This chapter considers how the proposed Act should regulate the commencement and trial of contempt proceedings and the penalties that may be imposed for contempt of court.

5.2 The proposed Act will replace the regulation of contempt proceedings in the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Civil Procedure Rules) with a more tailored procedure. This will protect fair trial rights in a way that reflects the criminal nature of contempt proceedings.

5.3 The first significant procedural issue is what mode of trial should be adopted for a contempt of court.

5.4 As discussed in Chapter 2, the current contempt procedure differs from ordinary criminal procedure. A contempt of court is tried by a judge-alone procedure provided for under Order 75 of the Civil Procedure Rules.

5.5 Order 75 of the Civil Procedure Rules provides that:

• Application for punishment for the contempt shall be by summons in the proceedings, where the contempt is committed by a party in relation to a proceeding in the court, or by originating motion in other circumstances.^[1]

• The court itself can commence a contempt proceeding by directing that the Prothonotary (in the Supreme Court) apply to the Court to deal with the contempt.^[2]

• The summons or originating motion shall specify the contempt with which the respondent is charged.^[3]

• The summons or originating motion and a copy of every affidavit shall be served personally on the respondent, unless the court otherwise orders.^[4]

5.6 Order 75 also makes provision for:

• the arrest and detention of a person pending hearing of a charge of contempt^[5]

• the imposition of certain punishments upon the contempt being proved^[6]

• the award of costs at the discretion of the court.^[7]

5.7 However, Order 75 is silent on many procedural matters.

5.8 This silence has been filled by the common law and by the application of other general provisions of the Civil Procedure Rules. In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd, the High Court confirmed that contempt proceedings commenced under Order 75 of the Civil Procedure Rules are civil proceedings. They are not the equivalent of a criminal trial. The High Court confirmed that Order 75 does not stand outside the Civil Procedure Rules and that contempt proceedings are within the ordinary application of those Rules.^[8]

5.9 Order 75 also provides for a second procedure for commencing and determining a charge for a contempt committed in the face of the court.^[9] Under this special summary procedure, the presiding judge can directly charge, try and punish the person accused of contempt. The need to retain this special summary procedure is discussed separately below.

Responses

5.10 Stakeholders such as the Law Institute of Victoria (LIV), Victorian Legal Aid (VLA) and the Criminal Bar Association submitted that, for transparency, consistency and fairness, the procedure for filing and prosecuting a charge of contempt of court should be the same as that which applies to criminal offences.^[10] The LIV and the Criminal Bar Association considered that different procedures might be required for contempts arising during proceedings that need an immediate response.^[11] The LIV submitted that contempts from non-compliance with orders should be dealt with under a new statutory civil proceeding.^[12]

5.11 The main objection of stakeholders to the summary procedure was that it did not adequately safeguard the rights of a person facing conviction and imprisonment. The LIV, for example, was concerned about the presumption of innocence, the appearance of bias or partiality, the time and facilities to adequately prepare a defence or communicate with a lawyer, the right to examine witnesses, or have witnesses examined, and the right to not be compelled to testify against oneself.^[13]

5.12 The Supreme Court, County Court and the Chief Examiner submitted that, although the summary procedure differed from a criminal trial, it did include safeguards. In their view, the summary procedure was more efficient and flexible in dealing with contempt than ordinary criminal procedure and better served the protective purpose of contempt.^[14]

Commission’s conclusions: retain the summary procedure

5.13 Although contempt proceedings are punitive, they are distinct from an ordinary prosecution for a criminal offence. As discussed in this chapter, different parties can apply to a court to exercise its contempt powers. Further, the court has a broad discretion in dealing with the matter. For these reasons, the Commission considers it appropriate to try contempts through a summary procedure commenced by an application supported by affidavit evidence.

5.14 Often the focus of contempt proceedings will be on:

• the characterisation of the relevant conduct and whether it poses a substantial risk to the proper administration of justice

• the accused’s attitude towards the court and the proceedings, any demonstration of remorse, and how these bear on the matter.

5.15 The summary mode of trial is thus effective and efficient in identifying and resolving the issue. The Commission considers that contempt should continue to be tried by a summary procedure under the proposed Act.

5.16 The Commission acknowledges the gravity of a contempt charge and the fundamental importance of the right to a fair hearing as enshrined in the Charter of Human Rights and Responsibilities Act 2006 (Vic).^[15] However, there are ways of protecting this right other than through the ordinary criminal procedure.

5.17 The proposed Act will remove the regulation of contempt proceedings from the Civil Procedure Rules and make specific provision for the conduct of contempt proceedings. The Commission considers that procedural safeguards can be included in the proposed Act to ensure the proceedings protect the accused’s rights, without adopting the procedure of an ordinary criminal trial.

Recommendation

12 The proposed Act should provide for contempt of court to be tried by summary procedure.

Procedural safeguards

5.18 Under the common law, certain fundamental principles already apply to contempt proceedings because of these proceedings’ punitive nature:

• All charges of contempt must be proved beyond reasonable doubt.^[16]

• In the case of a natural person, the privilege against self-incrimination and the privilege against self-exposure to penalty apply.^[17]

• No person should be punished for contempt of court unless the specific charge against them has been distinctly stated and an opportunity of answering it given to them.^[18]

5.19 Order 75 also includes safeguards reflecting the punitive nature of the proceedings. For example, the application to deal with the contempt must specify the charge of contempt and be served personally on the accused together with the affidavit evidence relied on in support.

5.20 The proposed Act should specify these safeguards. To ensure the procedure complies with the rights to a fair trial, the proposed Act should address:

• when a contempt may be tried in the absence of the accused

• the accused’s right to apply for the hearing of the charge to proceed by way of oral evidence or to cross-examine the witnesses who have sworn affidavit evidence relied on in support of the charge

• the accused’s right to call evidence in defence of the charge, including to file affidavit evidence, give oral evidence or call witnesses to give oral evidence

• the timing and content of any obligations that the accused may have to file a response to the charge and to give notice of the evidence they intend to lead

• the disclosure obligations of the parties, including orders to compel or produce evidence

• the accused’s right to an interpreter or communication assistance

• the accused’s rights to seek review or appeal of the court’s decision and any penalty imposed

• the circumstances in which a person may be arrested on a charge of contempt and detained pending hearing of the charge.

5.21 Some of these matters could be addressed in the proposed Act by clarifying how existing procedural laws apply to contempt proceedings. This is discussed below.

5.22 An important procedural safeguard is an accused’s right to seek legal assistance and to be legally represented. This extends to the right to legal aid where a person is eligible, and the interests of justice require it.^[19]

5.23 It is uncertain whether a person accused of contempt is eligible for legal aid, because contempt proceedings are not conducted through the usual criminal procedure.^[20] The Commission considers that, given the gravity of contempt proceedings, eligibility for legal aid should be assessed as if a contempt proceeding is the equivalent of a criminal trial. However, as this is outside the scope of this inquiry, the Commission makes no recommendation.

5.24 Another important procedural safeguard in relation to the special summary procedure is the right to be tried before an impartial tribunal. This is discussed below.

Recommendations

13 The proposed Act should provide that proceedings to deal with a contempt of court must be commenced by application to the court and that the application must:

• include a statement of charge that clearly specifies the alleged contempt, so the accused knows the case to be met

• be accompanied by the affidavits on which the person making the charge intends to rely.

14 In recognition of the criminal nature of contempt proceedings and to ensure procedural fairness, the summary procedure should include the following safeguards:

• the person charged must be served personally with the application unless an order for substituted service has been made

• the person must be given adequate opportunity to consider the charge, seek legal advice and prepare a defence

• subject to the Evidence Act, the person charged must have the opportunity to cross-examine witnesses, file affidavits in answer to the charge, give oral evidence and call witnesses to give oral evidence

• in accordance with section 141 of the Evidence Act, the applicable standard of proof is beyond reasonable doubt

• the privileges against self-incrimination and against self-exposure to penalty apply.

15 The proposed Act should specify the circumstances in which a person against whom contempt proceedings have been commenced can be arrested and remanded either on bail or in custody pending the hearing of a charge.

Interaction with other laws

5.25 Often, whether and how a procedural law applies to a proceeding will turn on whether it is a ‘criminal proceeding’ or ‘civil proceeding’, or whether it can be characterised as a ‘prosecution for an offence’. As contempt proceedings are civil proceedings that are ‘criminal in nature’, the application of laws relying on such classifications is unclear.^[21]

5.26 For example, there is still confusion whether:

• the Evidence Act 2008 (Vic) applies to contempt proceedings as though they are civil or criminal proceedings^[22]

• the Criminal Procedure Act 2009 (Vic) applies to interlocutory or final appeals from contempt proceedings^[23]

• the Civil Procedure Rules apply to the discretion to proceed with the trial in the absence of the person charged with contempt^[24]

• the Civil Procedure Rules apply so that a court may order a person charged with contempt to make discovery of documents or answer interrogatories^[25]

• the Civil Procedure Rules apply so that a party can be joined to contempt proceedings^[26]

• the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) applies to contempt so that the Act governs whether a person is unfit to stand trial or may plead a defence of mental impairment.^[27]

5.27 There are many other laws that might apply differently to contempt proceedings depending on whether the proceedings are classified as criminal or civil or whether contempt is an ‘offence’. These include the: Bail Act 1977 (Vic), Evidence (Miscellaneous Provisions) Act 1958 (Vic), Charter of Human Rights and Responsibilities Act 2006 (Vic), Confiscation Act 1997 (Vic), the Sentencing Act 1991 (Vic), Children, Youth and Families Act 2005 (Vic), Prisoners (Interstate Transfer) Act 1983 (Vic) and Service and Execution of Process Act 1992 (Vic).

Responses

5.28 The Supreme Court and County Court both identified a need to clarify whether and how such general procedural laws applied to contempt proceedings.

5.29 The Supreme Court submitted that legislation could make clear the applicable rules of evidence and procedure, standard of proof, and avenues of appeal in contempt proceedings.^[28] The County Court submitted that the proposed Act ‘could make it clear that contempt is criminal in nature, and indicate the ways in which contempt proceedings engage’ with the Evidence Act, Criminal Procedure Act and Sentencing Act.^[29]

5.30 The LIV submitted that the law of contempt should be brought ‘within the operation of the codified criminal law’ to ‘ensure existing procedural safeguards apply and matters such as the alleged contemnor’s mental health and fitness to plead would be appropriately managed under existing legislative means’.^[30]

Commission’s conclusions: clarify application of other procedural laws

5.31 There are good reasons for regulating contempt proceedings differently from ordinary criminal proceedings but they do not alter the fact that a person charged with contempt is faced with conviction and imprisonment. Therefore, the proposed Act should clarify that, except where otherwise provided for by the Act or where incompatible with the Act, a range of procedural laws should apply to contempt proceedings as though contempt of court were an ordinary criminal offence, and contempt proceedings were criminal proceedings for the prosecution of an offence. This includes laws governing:

• bail

• the rules of evidence

• disclosure

• rights of appeal

• extradition and prisoner transfer

• the assessment of fitness to stand trial and mental impairment

• the right to be present, legally represented and assisted by an interpreter.

Recommendation

16 The proposed Act should clarify how procedural laws apply to contempt proceedings as if contempt of court were an ordinary criminal offence, and contempt proceedings were criminal proceedings for the prosecution of an offence. This includes the following legislation:

• Criminal Procedure Act

• Civil Procedure Rules

• Evidence Act

• Crimes (Mental Impairment and Unfitness to be Tried) Act

• Bail Act

• Evidence (Miscellaneous Provisions) Act

• Prisoners (Interstate Transfer) Act

• Service and Execution of Process Act

• Confiscation Act.

Procedure for contempts in or near the courtroom

5.32 The recommendations above concern the ordinary procedure and mode of trial for contempt proceedings. Another issue is whether the proposed Act should include a special procedure for contempts committed in the face of the court.

5.33 A contempt committed in the face of the court is a contempt that disrupts or interferes with a particular court proceeding and which occurs in or near the courtroom. Chapter 7 discusses this category of contempt and how it should be defined in the proposed Act. This part of this chapter considers the procedure for contempts of this kind.

5.34 Currently, for this kind of contempt, the court may:

• order that the person be arrested and brought before the court

• inform the person of the charge against them

• adopt any procedure it ‘thinks fit’ in the circumstances to deal with the charge.^[31]

5.35 This is described in this report as the ‘special summary procedure’. It enables the court to deal with a contempt in the face of the court swiftly and decisively. However, it is important that this does not come at the cost of an accused’s right to a fair hearing.

5.36 The next section of this chapter considers whether the special summary procedure is procedurally fair and whether it is necessary for a presiding judicial officer to be able to charge, try and punish a contempt which occurs before them.

Is the special summary procedure fair?

5.37 Although the court can adopt any procedure it thinks fit when directly trying a contempt in the face of the court, certain principles have been established for the proper conduct of proceedings:

• A charge for contempt in the face of the court must be set out orally or in writing.

• The accused must be given the opportunity to consider the charge, and seek legal advice, an adjournment or details of the charge.

• The accused must be permitted to plead guilty or not guilty.

• If pleading not guilty, the accused must be permitted to present evidence and make submissions.

• The judicial officer must carefully consider all of the evidence before deciding whether the court is satisfied beyond reasonable doubt that the accused is guilty, while recognising their unusual position as witness, prosecutor and judge.^[32]

5.38 These principles, if adhered to, provide important safeguards. However, they do not overcome the problem of the judicial officer assuming multiple roles in the proceeding.

5.39 Contempt in the face of the court, when dealt with under the special summary procedure, is unusual. It is concerned with conduct committed against the court, witnessed by the court, with proceedings brought by the court, and decided by the court. The conduct that constitutes the charge can involve a personal affront to the presiding judicial officer in the form of threats or verbal abuse. And yet it is the presiding judicial officer who assumes the key roles of witness, prosecutor and judge.

5.40 The multiple roles assumed by the presiding judicial officer challenge traditional safeguards to protect a fair trial:

• In an ordinary criminal proceeding, the prosecutor bears the burden of proving the charge. The special summary procedure effectively shifts this burden to the accused, who must defend the allegation made by the judicial officer.

• In an ordinary criminal proceeding, the opposing side can test evidence. This is not possible where the evidence is the judicial officer’s own recollection and perception of events.

Responses

5.41 The VLA submitted that, in all contempt proceedings, the charges should be heard by a judicial officer who is not linked to either the alleged offending or the ongoing proceedings.^[33]

5.42 Members of the Victorian Bar told the Commission that the special summary procedure should be abolished, because it was ‘unacceptable’ that a judicial officer was at the same time victim, witness, prosecutor and judge.^[34] Representatives of Victoria Police also told the Commission it was not ideal for the presiding judge to deal directly with a contempt.^[35]

5.43 The LIV stated the procedure lacked ‘key safeguards’ and ‘may lead to a public perception of injustice, and thus diminish the authority of the court’. The LIV submitted that a charge arising from an alleged contempt in the face of the court should be heard by a different judicial officer unless both the accused and the judicial officer consent to the original judicial officer determining the charge. If they both agree, safeguards should be incorporated.^[36]

5.44 The Supreme Court submitted that, although the special summary procedure should be used rarely, it has a role and contains necessary safeguards. The Supreme Court stated that:

The law is clear that, while it is a summary procedure, both procedural fairness and fair hearing rights apply. Expressing the essential elements of the procedure in a legislative form will promote awareness and understanding and ensure consistency of application.^[37]

Commission’s conclusions: special summary procedure involves a conflict of interest

5.45 The Commission considers that procedural unfairness or the perception of it is inherent in the special summary procedure. The multiple roles played by the presiding judge create the appearance of partiality.

5.46 This is not necessarily remedied by properly informing the accused of the charge, providing an adjournment to seek legal advice, or affording an opportunity to present evidence and make submissions. For this reason, judges have often said the special summary procedure should be used sparingly and only when it is ‘urgent and imperative to act immediately’.^[38]

5.47 Use of the special summary procedure can undermine public confidence in the fairness of the court system. Therefore, the procedure should only be retained if needed to protect another aspect of the proper administration of justice. As discussed below, the Commission has concluded that it is not.

Is the special summary procedure necessary?

5.48 Stakeholders offered three main reasons why courts should continue to use the special summary procedure:

• The power to directly and immediately punish for contempt reinforces the authority of the court. Though rarely used, it helps to secure compliance with directions and ensure order and safety in the courtroom.

• The power is needed to deal with urgent threats to proceedings that require an immediate response to ensure that proceedings are not derailed.

• It would be impossible to prove some contempts committed in the face of the court without calling the judge before whom the alleged contempt occurred as a witness.

Order and safety in the courtroom

5.49 The maintenance of order in the courtroom allows proceedings to run efficiently. It allows victims, witnesses, parties, legal practitioners and court officers to attend and fulfil their duties to the court without feeling threatened or harassed.

5.50 In consultations with members of courts, the Commission was told that, even though the special summary procedure was rarely used, the existence of the power had ‘significant normative effect’ on behaviour in the courtroom.^[39] A threat to refer a matter for future investigation and prosecution may not have the same impact.^[40]

5.51 However, courts have other tools to deal with disruptions and control the conduct of the proceedings. For example, the court can adjourn a matter, give directions about how a matter is to be conducted, and order that a person, including the accused, be removed from the courtroom.^[41]

5.52 Authorised officers also have the power under the Court Security Act 1980 (Vic) to:

• issue and enforce directions ‘for the purpose of maintaining or restoring the security, good order or management of the court premises’

• remove a person from court premises if the authorised person reasonably believes the person is likely to adversely affect the security, good order or management of the court premises.^[42]

5.53 Police also attend at court and, like authorised officers, may exercise their usual powers of arrest under the Crimes Act 1958.^[43] Representatives of Victoria Police reported that police routinely file and prosecute charges arising out of behaviour in and around the courtroom, including charges in relation to prohibited weapons and harassment of witnesses.^[44]

5.54 Police told the Commission that in the courtroom the police would not act to arrest, detain or remove someone unless the presiding judicial officer directed. Even without a direction, police file charges in relation to conduct that occurs in the courtroom after the person has left the courtroom.^[45]

Urgent cases

5.55 Several stakeholders told the Commission that the special summary procedure was required for those exceptional cases requiring an urgent response from the court.^[46] The Supreme Court explained that the procedure ‘derives from the need in some cases to immediately identify and respond in a public and transparent manner to conduct which is impacting on proceedings’.^[47]

5.56 The LIV submitted that ‘there is a need to preserve the power of the courts to deal with contempt in the face of the court summarily in exceptional circumstances that require immediate action’. The LIV submitted that this should be limited to circumstances where:

• the alleged contemnor and the judicial officer consent, and

• the facts are virtually indisputable, and it is urgent and imperative to act immediately.^[48]

5.57 Stakeholders gave as an example of when this power might be needed the case of a witness refusing to give evidence at the beginning of a trial or committal proceeding, which may influence other witnesses to behave similarly.^[49]

5.58 However, members of the Magistrates’ Court told the Commission there were other effective mechanisms for dealing with reluctant witnesses, such as issuing a certificate that prevents the evidence being used to incriminate the person in other proceedings under section 128 of the Evidence Act.^[50]

5.59 Previous cases show that non-cooperative witnesses can be promptly charged and dealt with under the ordinary summary procedure.^[51] Moreover, the ordinary summary procedure allows the court to deal with the contempt when in a better position to determine the seriousness of the failure to testify.^[52]

5.60 Another example of behaviour that might justify the use of the special summary procedure is the intimidation and harassment of a witness in or near the courtroom.^[53] However, previous cases demonstrate that even the most serious contempts in or near the courtroom, involving assaults and threats to witnesses, counsel and jurors, can be successfully prosecuted under the ordinary summary procedure.^[54]

Evidential problems

5.61 The special summary procedure is used to try contempts witnessed directly by the presiding judicial officer. Judicial officers can rely on their perception and recollection of what they have observed.^[55] In many cases, no further evidence will be needed to prove the charge.

5.62 Stakeholders cautioned that if a charge of contempt of court must be heard by another judicial officer, this will create evidential challenges and the transcript of the proceedings may not provide adequate evidence of the conduct.^[56]

5.63 The authority of judicial officers could also be undermined if they were compelled to be a witness and subject to cross-examination. The Evidence Act provides that ‘person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave’.^[57]

5.64 Victoria Police told the Commission that, in relation to administration of justice offences, judicial officers are reluctant to take on the role of complainant. Victoria Police also told the Commission that other evidence including CCTV footage and witness testimony from those present in court, meant that charges could often be proved without judicial officers’ testimony.^[58]

5.65 The prosecution of criminal offences such as perjury, and the prosecution of contempts under the ordinary summary procedure, often rely on the use of transcripts from earlier proceedings.

Commission’s conclusions: abolish the special summary procedure

5.66 The proposed Act intends to regulate the contempt power in a way that gives the community confidence in the fairness and impartiality of the process. Under the special summary procedure, this fairness is compromised. There is no compelling justification for this.

5.67 The proper administration of justice requires that courts control their own proceedings and maintain order in the courtroom. People who attend or work at the court should not be subject to intimidation, threats or abuse. Proceedings should be conducted efficiently and fairly, and those who have duties to fulfil should be required to do so as directed by the court. These aims can be achieved without the special summary procedure.

5.68 Stakeholders pointed to circumstances requiring an immediate response from the court but there are other ways to address threats and disruptions. The Commission considers that the presiding judicial officer must have the power to respond to a disruption, including directing a person be charged and tried for contempt. However, the presiding judicial officer does not need the power to act as witness, prosecutor and judge to address these threats.

5.69 The special summary procedure is used rarely and with caution in Victoria. The recommendation that it should be abolished is no criticism of its use by judicial officers in Victoria. However, as the Law Reform Commission of Ireland commented, ‘a theoretically unsound law cannot be saved simply because it is applied in moderation’.^[59]

An alternative approach

5.70 The abolition of the special summary procedure raises the question of whether a new or modified procedure is required to deal with contempts committed in or near the courtroom that interfere with a proceeding.

The New Zealand model

5.71 The Contempt of Court Act 2019 (NZ) introduced a procedure for dealing with disruptive behaviour in the courtroom, which separates the steps taken to address a disruption from those taken to punish the conduct.

5.72 Under this Act, if a judicial officer believes a person is disrupting proceedings or disobeying any order or direction in the course of proceedings, they may order the person be excluded from court. They may also ‘cite’ the person for disruptive behaviour and order them to be detained until no later than the time the court rises for the day.^[60]

5.73 While in custody, the person must be given a reasonable opportunity to obtain legal advice and apologise to the court.^[61] Before the court rises for the day, the judicial officer must review the matter and, if further punishment is considered necessary, the judicial officer must provide a written statement of the behaviour believed to be disruptive,^[62] and set the matter down for hearing before a judge within seven days.^[63]

5.74 If the judicial officer is a judge, they must also consider whether there are exceptional circumstances for another judge to hear the matter.^[64] If the person is found guilty, they can be sentenced to up to three months imprisonment or up to 200 hours of community work or fined up to $10,000. However, they cannot be convicted.^[65]

5.75 The New Zealand model provides a clear process to address disruptive courtroom behaviour. The Act offers immediacy in providing for removal from the court and detention, as well as requiring any hearing to take place within seven days. The penalties are limited and no conviction can be recorded. The Act includes some of the safeguards of common law, such as requiring the charge to be particularised and providing an opportunity to obtain legal advice.

5.76 The New Zealand model still allows the judge before whom the conduct occurred to try and punish the conduct. Only where there are exceptional circumstances should the judge consider assigning the charge to another judicial officer for hearing.^[66] Thus, the same judge who witnessed the conduct will often hear the matter. Therefore, this model does not overcome the perception of bias inherent in the special summary procedure.

5.77 Further, the model allows a judicial officer to cite a person for contempt and detain them for the rest of the day. This means a person may be imprisoned even when the judicial officer decides the conduct should not be punished.

5.78 For these reasons, the Commission has concluded that the New Zealand model is not appropriate for Victoria. To avoid perceptions of bias, the Commission prefers a model requiring a different judicial officer to hear the charge.

Modifying the ordinary summary procedure

5.79 The ordinary summary procedure should apply to all contempts, including contempts committed in or near the courtroom. However, the proposed Act should provide a modified procedure for charging a person immediately for a contempt that interferes with the court’s ability to conduct a proceeding.

5.80 The proposed Act should provide for this modified procedure where it appears to the presiding judicial officer that a person is guilty of a contempt in or near the courtroom that interferes with a court proceeding, as defined in Chapter 7.

5.81 In this procedure, the presiding judicial officer must formulate a charge of contempt supported by particulars and order the person to be tried for the contempt before a different judicial officer. This would allow the presiding judicial officer to act more immediately than if they were limited to ordering that an officer of the court apply to the court to deal with the contempt.

5.82 This balances the competing aims discussed above:

• The judicial officer who witnessed the conduct is best placed to particularise the conduct that constitutes the alleged contempt.

• This approach should still be immediate enough to deter poor behaviour in the court and reinforce the court’s authority.

• The contempt charge is determined by a different judicial officer, ensuring procedural fairness and avoiding the appearance of bias.

• In most cases, the allegation of contempt can be supported by sources of evidence without requiring the judicial officer to give evidence, such as transcript, CCTV and the testimony of other witnesses.

5.83 If the Commission’s recommendations are adopted, the proposed Act should specify how the contempt charge issued by one judicial officer will be brought before and tried by another judicial officer. The proposed Act should address:

• the form and content of the contempt charge and its evidential status

• the power of either judicial officer to issue a warrant for the arrest and detention of the person pending the hearing of the contempt charge

• which court officer will nominally prosecute the contempt before the second judicial officer, and in whose name the proceedings will be brought

• the timetabling of the proceedings to allow the accused the opportunity to obtain legal advice and representation, enter a plea, consider the evidence in support of the contempt charge and, if relevant, defend the charge.

5.84 Elements of the procedure currently adopted by the Chief Examiner to commence and prosecute a contempt under the Major Crime (Investigative Powers) Act 2004 (Vic) may provide a useful model.^[67]

Constitutional considerations

5.85 As discussed in Chapter 3, the legal advice provided to the Commission suggests that if the power to deal with a contempt is a defining characteristic of a state Supreme Court, Parliament could not pass a law that prohibited the Supreme Court from itself moving to deal with the contempt.^[68]

5.86 The Commission is recommending a limitation on the power of the Court to deal with a contempt. The effect of the Commission’s recommendation will be that a judge can charge a person with contempt and direct that the Prothonotary (an officer of the Court) prosecute the charge before another judge of the Court.^[69]

5.87 This model will therefore mean that the courts still control the commencement and conduct of contempt proceedings. For that reason, the Commission considers this model unlikely to raise constitutional concerns.

Recommendations

17 The proposed Act should provide that the procedure for commencing and conducting proceedings for a contempt that interferes with the conduct of a court proceeding (as defined in Chapter 7) should be the same summary procedure as for all other types of contempt of court, except as modified by Recommendations 18 and 19.

18 The proposed Act should provide that the judicial officer before whom the alleged contempt occurred cannot adjudicate the alleged contempt they witnessed.

19 The proposed Act should provide that where there is an alleged contempt that interferes with a court proceeding the presiding judicial officer may adopt the following procedure:

• formulate the charge and particularise the conduct giving rise to the alleged contempt

• refer the alleged contempt to another judicial officer for hearing.

Standing to commence proceedings

5.88 Under the common law, any person may apply to the court to punish a contempt.^[70] Although the Civil Procedure Rules do not specify who can apply to the Supreme Court to punish a contempt, they provide that the court may exercise any power under the Rules on the application of a party or any person with a sufficient interest.^[71]

5.89 The Civil Procedure Rules also provide for someone who is not a party to the proceedings but who obtains a judgment or in whose favour a judgment is made to enforce the judgment by the same means as if that person were a party.^[72]

5.90 In practice, a proceeding to deal with a contempt is usually commenced by:

• a party to the proceedings, where the contempt arises in the context of civil proceedings

• the Attorney-General

• the Director of Public Prosecutions (DPP), where the contempt arises in the context of criminal proceedings

• the Court itself through the Prothonotary (Supreme Court).

5.91 The next section of this chapter considers whether the proposed Act should specify who can commence a contempt proceeding and any limits that should generally apply in relation to contempt proceedings. Chapter 11 further limits who can commence proceedings in the case of scandalising contempt.

Standing of parties to proceedings

5.92 Stakeholders questioned whether private parties (parties other than the Prothonotary, Attorney-General and DPP) should be able to commence contempt proceedings. The Commission was told that as the law of contempt exists to uphold and vindicate the

court’s authority it should be the court that determines whether contempt proceedings should be commenced. Private litigants should only be able to petition the court or

request the Attorney-General or the DPP to commence a proceeding.^[73]

5.93 Representatives of the Magistrates’ Court identified a risk that aggrieved private litigants could launch vexatious contempt proceedings.^[74] Legal practitioners raised related concerns that such litigants could use contempt proceedings to pressure other litigants unfairly, especially if there was a serious imbalance in power between the parties.^[75]

5.94 Others submitted that private parties should not have to rely on third parties to invoke the contempt powers of the court, especially when someone had disobeyed a court order

made for their benefit. In relation to disobedience contempt, the County Court submitted:

Ensuring that parties need not engage with an independent prosecutorial body in order to seek relief is important. Parties are in the best position to assess whether or not it is necessary to seek injunctive relief through contempt proceedings.^[76]

5.95 Members of the County Court observed that this position was not different from that in ordinary criminal law, where a private party can also file a charge to commence a criminal prosecution.^[77] However, this rarely occurs in practice.

5.96 Further, although a private party can commence a criminal prosecution, the DPP can ‘take over and conduct any proceedings in respect of any summary or indictable offence’,^[78] including taking over and discontinuing a private prosecution. This power does not apply

to contempt proceedings, despite a risk that private parties could misuse the law.

5.97 The Victorian Government Solicitor’s Office (VGSO) suggested that the DPP or the Attorney-General could have a role in supervising or reviewing any contempt proceedings commenced by private parties. It was acknowledged that this may be impractical where

the matter requires prompt intervention and the delay caused by any review could frustrate the purpose of the proceeding.^[79]

5.98 Professor David Rolph agreed that such delays could be unfair where people disobeyed court orders. However, such a role might be appropriate for other kinds of contempts,

given the public interest purpose of the proceedings.^[80]

Commission’s conclusions: parties should have standing

5.99 The purpose of the contempt power is to vindicate the authority of the court and to protect the administration of justice rather than to vindicate private rights and interests. However, these purposes intersect where orders have been disobeyed or a party’s ability to prosecute or defend civil proceedings has been interfered with. For this reason, private parties to a proceeding should be able to commence a contempt proceeding. This should include, but not be limited to, contempts arising from non-compliance with orders.^[81]

5.100 If the contempt arises from non-compliance with an order or undertaking, both parties and non-parties who have obtained an order, or in whose favour an order has been made, should be able to apply to commence contempt proceedings. They should not be denied the benefit of a judgment or undertaking because of another party’s disregard for the authority of the court. Further, the person for whose benefit an order has been made is the most likely to be aware the order has not been complied with and that other methods of enforcement have been tried or are futile.

5.101 The Commission is satisfied there are protections against private parties abusing this right. These include the sanction of costs and the court’s power to strike out proceedings that are vexatious or an abuse of process, including if they are brought or continued for an extraneous purpose.^[82]

5.102 As an additional protection, the Commission considers that the DPP should be empowered to take over any contempt proceeding, other than one commenced by the Attorney-General or the court itself, including for the purpose of discontinuing the proceeding. According to prosecutorial guidelines, the DPP exercises the power to take over and discontinue a private prosecution where there is no reasonable prospect of a conviction or the prosecution is not in the public interest. The policy states that ‘a private prosecution will not be in the public interest if it is vexatious, malicious or an abuse of process’.^[83] The Commission anticipates that this power will be exercised rarely because:

• The court itself has wide discretion to dismiss a contempt proceeding.

• The DPP will often not be able to assess the merits of a contempt proceeding arising from civil litigation that it has not previously been involved with.

5.103 Conferring this power on the DPP introduces a risk that contempt proceedings will be discontinued even though the court considers the proceedings have merit and are necessary. In these circumstances, the court itself may direct the Prothonotary to apply to punish the contempt.

5.104 The proposed Act should provide another option so private parties need not commence contempt proceedings themselves. It should provide that any person with a sufficient interest may apply to the court for an order directing the Prothonotary to commence a contempt proceeding. This will:

• allow parties to bring alleged contempts to the court’s attention

• provide an opportunity for the person alleged to have committed the contempt to apologise, and where possible remedy any breach

• allow the court to ensure that a contempt proceeding is only commenced where the alleged conduct threatens or undermines the administration of justice and warrants punishment.

Recommendations

20 The proposed Act should provide that:

• a party to a proceeding may apply to the Supreme Court to deal with a contempt arising from that proceeding

• a person in whose favour an order or undertaking has been made can apply to the Supreme Court to deal with a contempt arising from non-compliance with the order or undertaking

• any person with sufficient interest can apply to the Supreme Court for an order directing the Prothonotary to commence a contempt proceeding.

21 The proposed Act and the Public Prosecutions Act should provide that the Director of Public Prosecutions may take over and conduct any contempt proceedings including for the purpose of discontinuing the proceeding. This should not apply to a contempt proceeding commenced by the Attorney-General or the Court.

Standing of the Attorney-General

5.105 The Attorney-General can apply to the court to punish a criminal contempt in both criminal and civil proceedings. It is less certain whether the Attorney-General has standing to apply to punish a civil contempt arising in civil proceedings.^[84]

5.106 In practice, contempt prosecutions arising out of civil proceedings generally commence on the application of a private party or the court.^[85] One reason for this is that the Attorney-General has ‘no direct control over civil litigation and, unless informed by a party, could not be expected to know of interferences with such litigation’.^[86]

5.107 Representatives of the VGSO told the Commission that, in civil proceedings, there were often several ways to deal with a person who has not complied with court orders. They suggested that contempt proceedings would usually only be justified in the most serious of non-compliance cases and the parties and the court would be best placed to determine when they were justified.^[87]

Commission’s conclusions: Attorney-General should have standing

5.108 The Attorney-General should be able to apply to the Supreme Court to punish a contempt. The Attorney-General, as the the first law officer, has a responsibility to protect the courts and to vindicate their authority.^[88]

5.109 As discussed in Chapter 8, the Commission is recommending that the distinction between civil and criminal contempt should be abolished. This makes irrelevant any ambiguity about the ability of the Attorney-General to commence proceedings to punish a contempt arising from non-compliance with an order in civil proceedings.

5.110 There is a risk that the Attorney-General might intervene in such cases where the affected party does not want to take that action. However, the Commission is satisfied that the court has ways to ensure that its processes are not abused, such as imposing costs and striking out proceedings.

5.111 The Commission also notes that the Attorney-General is not obliged to commence contempt proceedings at the request of a party.

Recommendation

22 The proposed Act should provide that an application to the Supreme Court to deal with a contempt of court can be made by the Attorney-General.

Standing of the DPP

5.112 Under the Public Prosecutions Act 1994 (Vic), the DPP can commence contempt proceedings arising out of criminal proceedings. Contempts arising in other contexts may be referred to the Attorney-General.^[89]

5.113 The DPP submitted that the Director should continue to have the power to commence sub judice contempt proceedings, because the Director often requests the media to take down or not publish offending material. The DPP submitted that ‘a power to institute contempt proceedings remains important’ if such a request was not complied with.^[90]

Commission’s conclusions: DPP should have standing

5.114 The proposed Act should continue to provide that the DPP may, in accordance with the functions of the Director, apply to the Supreme Court to deal with a contempt.

5.115 Currently, the DPP may only apply to deal with a contempt in relation to a criminal proceeding (whether pending or otherwise). The DPP has the power to conduct some civil type proceedings, such as proceedings on an application under the Confiscation Act 1997 (Vic). The Commission considers that the proposed Act should provide that the DPP may apply to punish a contempt arising in relation to any matter being conducted by the DPP in accordance with the functions conferred by the Public Prosecutions Act.

5.116 As recommended above, the DPP should be empowered to take over a contempt proceeding commenced by a private party.

5.117 The DPP has a published policy providing the criteria for when a prosecution may proceed. It requires consideration of the prospects of conviction and whether the prosecution is in the public interest.^[91] Although this policy does not refer directly to contempt proceedings, it guides the DPP’s prosecutorial discretion in relation to contempt proceedings. To aid consistency and transparency, all state agencies should have similar policies to guide the exercise of their prosecutorial discretion in relation to contempt proceedings.

Recommendation

23 The proposed Act should provide that the Director of Public Prosecutions may apply to the Supreme Court to deal with a contempt of court where the contempt arises in relation to:

• a criminal proceeding (whether pending or otherwise)

• any matter being conducted by the DPP in accordance with the functions conferred by the Public Prosecutions Act.

Role of the Prothonotary

5.118 As discussed in Chapter 3, the power of the courts to deal with contempt is at its heart a power of the courts to protect their authority and the administration of justice. It is therefore important that the court has the power to commence contempt proceedings. Under Order 75, the court can order an officer of the court (in the case of the Supreme Court, the Prothonotary) to apply to deal with the contempt.^[92]

5.119 An issue with this procedure is that the Prothonotary has no discretion not to proceed with such an order by the court.

5.120 In practice, after receiving such an order, the Prothonotary seeks legal advice from the VGSO on whether the conduct amounts to a contempt and, sometimes, whether it is in the interest of justice to commence a proceeding. Where the advice is not to proceed, contempt proceedings are not always commenced.^[93] However, Order 75 does not give the Prothonotary any choice to decide whether to proceed.

5.121 Legal practitioners with experience in contempt proceedings told the Commission that this aspect of the procedure should be clarified. The Prothonotary should be given the authority to determine whether contempt proceedings are pursued after the court makes a referral.^[94]

5.122 However, the Commission also heard reservations about allowing the Prothonotary to consider whether to commence a contempt proceeding. The Commission was told that the Prothonotary’s Office would usually rely on external legal advice. Therefore, the process would be the same as if the court referred the matter directly to the DPP or Attorney-General to consider whether they should commence contempt proceedings.

Commission’s conclusions: the Supreme Court should direct the Prothonotary to commence or continue a proceeding

5.123 The proposed Act should provide for the Supreme Court to order the Prothonotary to commence contempt proceedings. This is the established way for the Court to commence contempt proceedings, no issues were raised with this procedure and it should be restated in the proposed Act.

5.124 However, it is necessary to make clear when the Prothonotary may not commence contempt proceedings despite receiving such an order.

5.125 In cases where the Prothonotary considers it not in the interests of justice to commence proceedings, the Prothonotary should seek further directions from the Court before proceeding with the application. For example, this may be the case when the Prothonotary receives legal advice that there is not enough evidence to prove the charge.

Recommendation

24 The proposed Act should provide that the Supreme Court can order the Prothonotary to make an application to deal with a contempt of court. The Prothonotary may seek further directions from the Court before proceeding with the application. The Prothonotary must proceed as directed.

Warnings

5.126 A feature of the law of contempt is the courts’ discretion to determine whether and how a person is dealt with for contempt. This discretion is reflected in the use of judicial warnings to address possible cases of contempt.

5.127 As discussed in the consultation paper, judicial officers issue contempt warnings in two contexts:

• Warnings are used to put a person on notice of the risk of being in contempt if they persist in their conduct.

• Warnings are used in a ‘show cause’ context: that is, to alert a person that the court has formed a preliminary view that the person has committed a contempt and, depending on any submissions that may be made, a contempt proceeding may be initiated.^[95]

5.128 As discussed in the consultation paper, warnings allow the courts to address potentially contemptuous behaviour in a flexible and proportionate way. Such warnings give people an opportunity to cease, explain or atone for their behaviour. This avoids the need to resort to contempt proceedings.

5.129 However, the informal status of warning means that people may feel pressured into making an admission, offering an apology, or abandoning a submission or course of conduct without a clear charge ever being articulated against them.^[96]

Responses

5.130 The consultation paper asked when contempt warnings should be given. It also asked if there should be guidance, including in legislation, on the status of a contempt warning and its use by courts.^[97]

5.131 Stakeholders indicated general support for the way courts used warnings to deal with contempt, and they focused on the benefits rather than the risks of the courts’ use of warnings.^[98]

5.132 The County Court observed that, although warnings may be capable of misuse, this is subject to scrutiny on appeal, as demonstrated by previous decisions.^[99]

5.133 Stakeholders noted that warnings are important because they:

• can stop a person from continuing to misbehave^[100]

• provide an opportunity for a person to apologise^[101]

• allow for procedural fairness^[102]

• ensure that expensive and time-consuming contempt proceedings are not unnecessarily commenced.^[103]

5.134 Stakeholders were divided on whether a court must give a person a warning before dealing with the person for contempt, and on the need for a more detailed procedure for the use of warnings.

5.135 Some submitted that it was unnecessary to prescribe when and how a judicial officer could give warnings.^[104] What mattered was that the procedure was fair.^[105] Factors that were relevant to whether a warning should be given included:

• whether the conduct was continuing^[106]

• the type of contempt^[107]

• whether legislation prescribed conduct to be a contempt^[108]

• whether a warning may be counter-productive and in fact may escalate a situation, giving rise to safety and security concerns.^[109]

5.136 The County Court told the Commission that a contempt warning should be issued only when there is no other appropriate way of regaining authority and control. However, prescribing when and how to use warnings might reduce the use of warnings, and make them less effective. While warnings were important to ensure procedural fairness, the court needed to have flexibility so they could consider ‘the unique circumstances that may prevail’.^[110]

5.137 The DPP submitted that, although it was appropriate to warn a person, it should not be necessary to issue a warning before commencing a contempt proceeding.^[111]

5.138 Professor David Rolph and the Criminal Bar Association commented that a judicial bench book would be an appropriate way to provide guidance on when and how to use warnings.^[112]

5.139 Other stakeholders argued for greater procedural certainty. Professor Mark Pearson et al submitted that

Warnings should include specified content to ensure procedural fairness. Warnings should be accompanied by adjournments to enable legal representation and the opportunity to take further advice and to increase the possibility that even a late apology will issue. Specific court procedural forms could be developed by rules committees for use by the registrars to formally warn litigants and set out next procedural steps.^[113]

Commission’s conclusions: use of warnings should not be regulated

5.140 Warnings, used judiciously, are a valuable tool to address misconduct and to provide a person with an opportunity to respond before contempt proceedings are commenced. Warnings can provide an opportunity to protect the administration of justice without the need for contempt proceedings.

5.141 The consultation paper raised concerns that informal contempt warnings may mask the use of the threat of contempt proceedings to pressure parties and extract apologies without a clear legal foundation. These concerns were not reflected in the submissions of stakeholders. Even those who considered that any proposed legislation should address the use of warnings did so with the view that specifying the content and timing of warnings would make procedures fairer.

5.142 The Commission agrees with stakeholders that ordinarily a person should be warned before steps are taken to commence contempt proceedings. However, there are many ways in which a contempt may arise.

5.143 It may be counterproductive to prescribe that a person must be warned. For example, a warning may make a person more likely to be disruptive. Prescribing the use of warnings could also discourage a judicial officer from giving an effective warning if this was seen as a formal step in commencing proceedings.

5.144 A warning provides a valuable opportunity for a person to apologise. This can mean it is no longer necessary to deal with the contempt. However, as discussed below, a person can still apologise even if a contempt proceeding has commenced.

5.145 Rather than regulating the use of warnings in the proposed Act, it would be more appropriate to provide guidance on the use of warnings in a judicial bench book.

Recommendation

25 The proposed Act should not regulate the use of contempt warnings. This should remain a matter for judicial discretion. Guidance should be given to judicial officers through the Judicial College on the appropriate use of warnings.

Apologies

5.146 Apologies are important in contempt law. As in ordinary criminal law, courts can consider apologies when deciding on the appropriate penalty. In contempt cases, an apology can also have greater significance. If a person apologises for an alleged contempt, the court may regard this as ‘purging’ the contempt, so it is no longer necessary to impose any penalty, or find the contempt proved, or even direct that a contempt proceeding be commenced.^[114]

5.147 Both the Magistrates’ Court Act 1989 (Vic) and the Coroners Act 2008 (Vic) provide that the court may accept an apology and decide not to impose or to reduce any punishment for contempt accordingly.^[115]

Responses

5.148 The consultation paper asked what weight, if any, should be given to apologies in determining whether and what penalty is imposed for contempt of court.^[116]

5.149 Australia’s Right to Know coalition (ARTK) submitted that apologies should be given significant weight in determining penalties. They should signal ‘that a repeat contempt is unlikely and therefore no specific deterrence is necessary’. ARTK also observed that in some instances an apology should be capable of entirely purging an alleged contempt.^[117]

5.150 The Supreme Court stated that:

Apologies serve an important role in contempt and should remain capable of being assessed by the court as purging contempt. The vice of certain contempts can often be more effectively remedied by a public apology than prosecution of the prior actions. … Whether an apology purges a contempt can only be determined in the circumstances as they arise. In other instances an apology may be evidence of remorse and can be taken into account in determining the appropriate penalty.^[118]

5.151 The County Court expressed a similar view on the significance of apologies. It told the Commission that the legislation should not prescribe when an apology ‘purged’ a contempt but should leave the decision to the discretion of the judicial officer.^[119]

5.152 Other stakeholders, including the DPP, considered that apologies should be relevant to penalty.^[120] Legal practitioners experienced in contempt said that an apology should not be treated as purging a contempt if a proceeding to deal with the contempt had already been commenced.^[121]

Commission’s conclusions: give courts discretion to act on an apology

5.153 The Commission considers that the proposed Act should make clear the distinctive role played by apologies in contempt law.

5.154 As discussed in Chapter 3, contempt is in essence a judicial power to uphold the administration of justice. The contempt power should only be used when a court decides this is needed to protect the administration of justice. The courts should therefore continue to have broad discretion to decide that an apology makes it unnecessary to commence or continue a contempt proceeding, or record a conviction, or impose a penalty.

5.155 For that reason, the Commission considers that the proposed Act should make clear that the court may accept an apology and, if it does, the court may decide that a contempt proceeding should not commence or continue, or that the apology means no penalty should be imposed or any penalty should be reduced.

Recommendation

26 The proposed Act should set out the role of apologies in contempt proceedings, and should provide that the court may, at its discretion, accept an apology and:

• determine that no proceeding should be commenced to deal with the alleged contempt

• determine that a proceeding already commenced should be discontinued

• determine that, although the contempt has been proved, no conviction should be recorded and/or penalty imposed, or

• take the apology into account in determining what penalty should be imposed.

When can the power be exercised?

A power of last resort

5.156 As discussed in the consultation paper, the cases establish that the power of the courts to deal with a contempt is:

• important to protect the administration of justice^[122]

• to be used sparingly and only when necessary.^[123]

5.157 In relation to this second principle, as the consultation paper noted, there are usually other ways for dealing with conduct which might amount to contempt. For example, the consultation paper listed other options available to a court so that it can address disruptions in the courtroom^[124] and can enforce compliance with court orders.^[125]

5.158 The Commission has considered whether the proposed Act should provide that the contempt power should only be used if there are no other reasonably available mechanisms to deal with the conduct. However, making this a condition could cause difficulties because a court would need to identify all other mechanisms and determine whether they would be effective before a proceeding could be commenced.

5.159 A better, more flexible, way of reflecting this principle in the proposed Act would be to require the court to consider whether there are more appropriate procedures either before commencing a contempt proceeding on its own motion or before continuing to try a contempt proceeding commenced by another party. If other appropriate procedures are available to deal with the conduct, it will be harder to establish the need for the court to act to protect the administration of justice.

Recommendation

27 The proposed Act should provide that in determining whether to commence a contempt proceeding or to continue a contempt proceeding commenced by another party, the Supreme Court should consider the extent to which other procedures to deal with the conduct are available.

Interaction with criminal law

5.160 A related question is whether the proposed Act should regulate the relationship between the court’s power to deal with a contempt and the ordinary criminal law.

5.161 In Victoria, there are many ordinary criminal offences, both in legislation and in common law, which prohibit conduct that interferes with the proper administration of justice.^[126] The courts’ contempt powers therefore often overlap with the criminal law, and the same misconduct may be dealt with either as contempt of court or by way of prosecution under the Criminal Procedure Act.

5.162 Existing legislation does not specify when the power to deal with a contempt can be used even though the same conduct could be punished as an ordinary criminal offence.

5.163 As the Children’s Court noted, it is common for offences to overlap, even under legislation.^[127] However, as discussed in the consultation paper, if conduct is punished as contempt rather as an ordinary criminal offence, a person can lose the right to be tried by a jury and a higher penalty could be imposed.^[128]

Responses

5.164 The consultation paper asked whether there was a need for legislative guidance on when conduct should be punished as a contempt rather than as an ordinary criminal offence.^[129]

5.165 The VLA, the Criminal Bar Association and ARTK all told the Commission that if there was an ordinary criminal offence that covered the same conduct the better approach would be to prosecute the conduct as an offence rather than as contempt.^[130] The Criminal Bar Association submitted that, to make this easier, the courts should be able to refer conduct to the DPP for prosecution.^[131]

5.166 The DPP expressed the view that judicial officers should continue to have discretion to determine whether to deal with conduct as a contempt.^[132] The Chief Examiner stated that this discretion was needed because:

in some cases ‘swifter or more condign action is required to uphold the due administration of justice’. Though it is a discretionary exercise, the court or officer with the conduct of the relevant proceedings is well-placed to determine whether the particular circumstances warrant resorting to the laying of a charge for contempt.^[133]

Commission’s conclusions: contempt power not excluded where criminal offence available

5.167 The power of the courts to deal with a contempt exists alongside the ordinary criminal law, rather than only filling gaps in criminal law. It should be able to be used if required to protect the administration of justice, even if another criminal charge is available. For example, it may be necessary to deal with conduct as a contempt to identify and address the real harm caused to the administration of justice, such as where there is a threat of assault by one party on another in the course of a hearing in a civil proceeding.

5.168 Therefore, the proposed Act should still allow a court to exercise its contempt powers even if the conduct could be dealt with as a criminal offence. As discussed earlier, the court must consider whether other mechanisms may be more appropriate, but this should operate as a discretionary factor rather than a limit on its power to commence proceedings.

5.169 In some cases, there will be practical reasons to prosecute an offence rather than deal with a matter as contempt. For example, the DPP, the Attorney-General and the Prothonotary do not have the same capacity to investigate a matter as the police or to gather evidence if the facts are contested.

5.170 Finally, it should be made clear that the same conduct cannot be punished both as a contempt and an ordinary criminal offence. This may already be dealt with by the general provision in the Interpretation of Legislation Act 1984 (Vic) that protects a person from being punished twice under different laws (including under the common law) for the same conduct, even if that person is charged with both offences.^[134]

5.171 However, there may be some doubt as to whether contempt amounts to an ‘offence’ for the purposes of this provision, and the approach in most legislation has been to make the position clear by protecting a person from being punished under both that Act and as a contempt.^[135] The Commission recommends that a similar provision should be included in the proposed Act.

Recommendation

28 The proposed Act should provide that if an act or omission constitutes both a contempt of court under the proposed Act and a criminal offence under another Act or the general common law, the person may be either charged with the offence or dealt with for contempt, or both, but may not be punished more than once for the same act or omission.

Costs

5.172 The court has discretion to award an applicant costs for any contempt proceedings, even if no penalty is imposed.^[136] In Victoria it is usual for a court to order a person found to be in contempt to pay the applicant’s costs on an indemnity basis.^[137] This recognises that the party bringing the proceeding has defended the public interest in upholding the rule of

law, and that the ‘litigant who must come to court in order to enforce an order which has been breached by contempt, or to have a person dealt with [for] contempt, should not be out of pocket’.^[138]

5.173 An order for costs may be significant. This can be considered in determining what other penalties are imposed,^[139] and even whether there is a need for any other penalty.^[140]

5.174 If an applicant fails to prove the contempt, they may have to pay the respondent’s costs.^[141] This can make it risky for a party to decide to commence proceedings, especially when the person must pay the costs order ‘without having achieved the purpose of enforcing the original order’.^[142]

Responses

5.175 Other than the DPP, few stakeholders addressed the issue of costs. The DPP raised concerns that the current approach to costs, especially the risk of an order for indemnity costs, made it a ‘difficult task’ to determine whether there were sufficient prospects of conviction and it was in the public interest to commence a contempt prosecution. The DPP submitted that the ‘approach to costs in contempt proceedings should reflect the current approach to costs in criminal matters (for example, where there has been a failure to disclose) and liability for indemnity costs should be removed’.^[143]

Commission’s conclusions: costs should be at the court’s discretion

5.176 The DPP plays an important public role in bringing contempt proceedings to protect the fairness of criminal trials in Victoria. In determining whether commencing a proceeding is in the public interest, the DPP is guided by prosecutorial guidelines.^[144]

5.177 The DPP’s discretion to apply to the court to deal with a contempt (and similarly that of the Attorney-General or Prothonotary) should not be unduly constrained by the risks of an order for indemnity costs. However, these concerns do not justify limiting the court’s discretion to order the costs appropriate in the circumstances.

5.178 While it is the practice to award indemnity costs in contempt cases, this is not a rule. The cases make clear that the courts consider the circumstances of the proceeding before awarding costs. For example, indemnity costs were awarded against an unsuccessful applicant in Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd only after the court concluded that:

• the defendants did not have an opportunity to explain their conduct before the proceeding was commenced

• the evidence for the contempt was tenuous at best

• the applicant commenced the proceedings on a suspicion, and the proceedings should not have been commenced.^[145]

5.179 The cases also suggest that, although a successful defendant will generally be entitled to costs, the court can choose not to order costs if the proceeding was properly brought.^[146]

5.180 The proposed Act should not interfere with the court’s discretion to award costs.

There are too many factors that need to be considered. An exemption for the DPP

would need to address cases where the proceedings should not have been brought or were not efficiently prosecuted. Further, such an exemption might need to be extended to the Attorney-General and the Prothonotary. This would introduce more complexity than is justified.

Recommendation

29 The proposed Act should specify that a court may award costs at its discretion.

Penalties

5.181 The Supreme Court has a broad discretion to determine whether to impose a penalty for contempt of court, and if so, what that penalty should be.^[147]

5.182 Under rule 75.11 of the Civil Procedure Rules, the court may punish a contempt by committing a person to prison, fining the person, or doing both.^[148] If a body corporate is found guilty of contempt, the court may sequester (take possession of) the body corporate’s property, fine the body corporate, or do both.

5.183 The penalty regime is flexible in that:

• there is no maximum penalty^[149]

• if the court imposes a fine, it may commit, or further commit, the person to prison until the fine is paid^[150]

• the court may make an order that a penalty may end if a condition is met (for example, a court can order that a person must pay a fine that accrues until the person complies with the court order)^[151]

• the court may release a person from imprisonment earlier than originally ordered.^[152]

Maximum penalty or penalties

5.184 The consultation paper asked whether there should be a statutory maximum penalty for contempt of court. If so, it asked what penalties should apply and whether different penalties should apply for distinct categories of contempt.

5.185 The Commission received legal advice that the Parliament could set a maximum penalty for contempt without breaching the Constitution. However, particular care should be taken because:

if the maximum penalty were set too low, it may preclude the Supreme Court from selecting a punishment that it thought adequate in the particular circumstances, thereby inhibiting its ability to protect itself or the due administration of justice. That might lead to the conclusion that the Supreme Court has been deprived of its ‘defining characteristic’ to deal with a contempt.^[153]

5.186 The Sentencing Act includes general rules for penalties. The Act includes a default penalty scale that identifies levels of maximum penalties in terms of imprisonment and penalty units for fines.^[154] It also provides that for offences under the Crimes Act 1958 (Vic) the maximum fine for a body corporate is five times the fine that can be imposed on a natural person.^[155]

Responses

5.187 Stakeholders noted that the absence of a statutory maximum penalty does not mean that in practice or in principle there are no parameters on sentencing for contempt.^[156] However, the LIV also noted that the absence of a maximum was ‘one of the most striking features of the unfettered powers of the court relating to contempt’.^[157] With few exceptions,^[158] stakeholders supported fixing a maximum penalty for contempt.^[159]

5.188 Stakeholders expressed different views on what the maximum penalty should be. Both the County Court and Children’s Court submitted that the penalty should be the same for all types of contempt.^[160]

5.189 Stakeholders noted that:

• contempt covers a wide range of behaviours varying greatly in seriousness^[161]

• the capacity of individuals and bodies corporate to pay fines also varies greatly and penalties need to reflect this.^[162]

5.190 The Supreme Court submitted that the maximum penalty should reflect the most serious case. The Court noted that the maximum penalty for the common law offence of attempting to pervert the course of justice is 25 years imprisonment and for perjury 15 years imprisonment.^[163]

Commission’s conclusions: there should be a maximum penalty

5.191 A maximum penalty should be set for contempt of court. This is consistent with the approach for statutory offences and for most common law offences in Victoria.^[164]

5.192 Setting a maximum penalty provides an indication of how seriously the community views contempt, including in relation to other types of misconduct. It makes clear to the public the consequences of not obeying a law. It promotes the rule of law by limiting judicial discretion.^[165]

5.193 The Commission considers that there should not be an unlimited and indefinite penalty for contempt. Even if a penalty for contempt is imposed for a coercive purpose, it is still a punishment. Therefore, the sentence should be finite and based on consideration of the contempt that has been proved.

5.194 This coercive aspect can be recognised by giving the court power to release a person from a sentence of imprisonment early or to impose a fine that accrues until a maximum is reached. The court should also continue to be able to order sequestration; that is, taking possession of someone’s property until they comply with the court order.^[166]

5.195 The Commission has made recommendations in Chapters 7 to 11 about the maximum penalty for the types of contempt discussed in those chapters.^[167] In view of the legal advice received by the Commission and the maximum penalty available for comparative offences,^[168] the Commission recommends that the maximum penalty for the general category of contempt should be 10 years imprisonment.

5.196 To ensure consistency, these maximum penalties for imprisonment should correspond with the maximum monetary penalties set out in the default penalty scale in the Sentencing Act.

5.197 Similarly, consistent with the Sentencing Act, the proposed Act should provide for maximum penalties for bodies corporate five times greater than the maximum imposed on a natural person.

Application of the Sentencing Act

5.198 As discussed in the consultation paper, it is unclear which provisions of the Sentencing Act, if any, are relevant to sentencing for contempt of court.^[169] This uncertainty can limit the sentencing options available to the court.

5.199 The Sentencing Act sets out principles for sentencing decisions, the factors that must be considered when sentencing, and the purposes of sentencing. Many principles in this Act are already applied in sentencing a person for contempt.

5.200 The options in the Sentencing Act give the court the flexibility to determine an appropriate penalty in all circumstances. These options include:

• imprisonment

• community correction order with or without conviction

• fine with or without conviction

• adjourned undertaking with or without conviction (which allows the court to adjourn the hearing for up to five years and release the defendant if they undertake to be of good behaviour and to comply with any other conditions ordered by the court)

• dismissal (which allows the court, where a charge is proved, to make an order dismissing the charge without recording a conviction or imposing a penalty)

• discharge (which allows the court, where a charge is proved, to record that the person has been convicted without imposing a penalty).

5.201 Many of these sentencing options are already reflected in the sentencing outcomes of contempt cases. However, the Sentencing Act provides a clearer legislative framework for formulating sentencing orders and for attaching consequences to any failure to comply.

5.202 The consultation paper asked whether the Sentencing Act should apply to contempt proceedings.^[170]

Responses

5.203 Stakeholders supported the application of the Sentencing Act to contempt. The Supreme Court stated that:

a number of cases have had regard to the Sentencing Act 1991 to a greater or lesser extent. A provision which formally applied the Sentencing Act 1991 to contempt offences would provide greater certainty in practice, ensuring the availability of a full range of sentencing orders and the framework within which orders are made.^[171]

5.204 The Criminal Bar Association cautioned that there was also a need to recognise the coercive aspect of punishment for contempt ‘which is directed towards bringing the contemptuous conduct to an immediate end in addition to punishment and denunciation’.^[172]

5.205 The VLA submitted that the Children, Youth and Families Act should be applied to the sentencing of young offenders for contempt.^[173] The Children, Youth and Families Act includes sentencing principles and options that differ from those applying to adults.^[174] The main consideration for sentencing young offenders is the prospect of rehabilitation.^[175]

Commission’s conclusions: Sentencing Act should apply to contempt

5.206 The Commission agrees with stakeholders that the Sentencing Act should apply to contempt proceedings. This will give courts a broader range of sentencing options and therefore more flexibility.

5.207 Further, there is no reason punishment for contempt should sit outside the uniform approach to sentencing provided for in the Act. While courts apply the Sentencing Act in contempt cases by analogy, the application of the Sentencing Act to contempt should be made clear in legislation. Some modification may need to be made to reflect the coercive purpose of some penalties.^[176]

5.208 The sentencing principles in the Children, Youth and Families Act should apply when a child is sentenced for contempt. Again, there is no reason to apply a distinctive approach to sentencing young offenders for contempt.

Recommendations

30 The proposed Act should fix a maximum penalty for contempt of court. Different maximum penalties should apply for different categories of contempt as set out in subsequent recommendations. The maximum penalty for the general category of contempt should be for an individual 10 years imprisonment or 1200 penalty units.

31 The proposed Act should provide for maximum penalties for bodies corporate that are five times those that can be imposed on a natural person.

32 To ensure the availability of the full range of sentencing orders and to provide a consistent framework for the making of sentencing orders, the proposed Act should provide that:

• the Sentencing Act applies to the sentencing of an adult for contempt of court

• the Children, Youth and Families Act applies to the sentencing of a child for contempt of court.

33 To retain flexibility, the proposed Act should provide that the Supreme Court retains the discretion to order early discharge from a sentence of imprisonment or other sentencing order, an accruing fine up to a set maximum, and/or sequestration.

1. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.06(1)–(2).

   ↑

2. Ibid r 75.07.

   ↑

3. Ibid r 75.06(4).

   ↑

4. Ibid r 75.06(5).

   ↑

5. Ibid r 75.08.

   ↑

6. Ibid r 75.11.

   ↑

7. Ibid r 75.14.

   ↑

8. Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21.

   ↑

9. Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 75.02–75.04.

   ↑

10. Submissions 11 (Victoria Legal Aid), 20 (Criminal Bar Association), 22 (Law Institute of Victoria).

    ↑

11. Submissions 20 (Criminal Bar Association), 22 (Law Institute of Victoria).

    ↑

12. Submission 22 (Law Institute of Victoria).

    ↑

13. Ibid.

    ↑

14. Submissions 26 (Chief Examiner, Victoria), 29 (Supreme Court of Victoria), 31 (County Court of Victoria).

    ↑

15. Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 23–5.

    ↑

16. Witham v Holloway (1995) 183 CLR 525.

    ↑

17. Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 256 [67] (Nettle J).

    ↑

18. Coward v Stapleton (1953) 90 CLR 573.

    ↑

19. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(d)–(f).

    ↑

20. Consultation 6 (Victoria Legal Aid).

    ↑

21. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 [191]–[196], [208], [223], (2014) 47 VR 527.

    ↑

22. Ibid [455]–[460].

    ↑

23. Ibid [182]–[188].

    ↑

24. R v Slaveski (Appln to set aside contempt orders) [2017] VSC 526 [65]–[71].

    ↑

25. Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 256; Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 [462]–[477].

    ↑

26. Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2013] VSCA 378.

    ↑

27. R v Slaveski (Appln to set aside contempt orders) [2017] VSC 526 [97]–[99].

    ↑

28. Submission 29 (Supreme Court of Victoria).

    ↑

29. Submission 31 (County Court of Victoria).

    ↑

30. Submission 22 (Law Institute of Victoria).

    ↑

31. Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 75.02–75.03.

    ↑

32. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 51 [4.54]; Zukanovic v Magistrates’ Court of Victoria at Moorabbin [2011] VSC 141 [41], (2011) 32 VR 216.

    ↑

33. Submission 11 (Victoria Legal Aid).

    ↑

34. Consultation 17 (Victorian Bar).

    ↑

35. Consultation 19 (Victoria Police).

    ↑

36. Submission 22 (Law Institute of Victoria).

    ↑

37. Submission 29 (Supreme Court of Victoria).

    ↑

38. Keeley v Brooking (1979) 143 CLR 162, 174; Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 52 [4.59]–[4.61].

    ↑

39. Consultation 26 (Supreme Court of Victoria).

    ↑

40. Consultations 15 (Children’s Court of Victoria), 24 (County Court of Victoria), 26 (Supreme Court of Victoria).

    ↑

41. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 55–6 [4.76]–[4.77]; Roberts v Harkness [2018] VSCA 215 [37], (2018) 57 VR 334; Boros v O’Keefe [2017] VSC 560 [18]–[19]; Ex parte Tubman; Re Lucas [1970] 3 NSWR 41. The Magistrates’ Court noted that sometimes there are no appropriately empowered officers available to give effect to removal orders or to assist with security: Consultation 25 (Magistrates’ Court of Victoria). Practical arrangements of this kind are central to court security but where they are inadequate, this cannot be overcome by the existence or exercise of contempt powers.

    ↑

42. Court Security Act 1980 (Vic) s 3.

    ↑

43. Crimes Act 1958 (Vic) s 458. However, although a police member or protective services officer does have the power to remove a person, they are not routinely present at the Magistrates’ Court (unlike at the County and Supreme Courts): Consultation 25 (Magistrates’ Court of Victoria).

    ↑

44. Consultation 19 (Victoria Police).

    ↑

45. Ibid.

    ↑

46. Submissions 29 (Supreme Court of Victoria), 31 (County Court of Victoria); Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

    ↑

47. Submission 29 (Supreme Court of Victoria).

    ↑

48. Submission 22 (Law Institute of Victoria).

    ↑

49. Consultations 15 (Children’s Court of Victoria), 24 (County Court of Victoria).

    ↑

50. Consultation 25 (Magistrates’ Court of Victoria).

    ↑

51. DPP (Vic) v Garde-Wilson [2006] VSCA 295, (2006) 15 VR 640.

    ↑

52. Allen v The Queen [2013] VSCA 44 [67]–[75], (2013) 36 VR 565.

    ↑

53. Consultation 24 (County Court of Victoria).

    ↑

54. See, eg, DPP (Vic) v Johnson [2002] VSC 583.

    ↑

55. Foley v Herald-Sun TV Pty Ltd [1981] VR 315, 316.

    ↑

56. Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

    ↑

57. Evidence Act 2008 (Vic) s 16(2).

    ↑

58. Consultation 19 (Victoria Police).

    ↑

59. Law Reform Commission of Ireland, Contempt of Court and Other Offences and Torts Involving the Administration of Justice (Issues Paper No 10, 2016) 26 [3.02].

    ↑

60. Contempt of Court Act 2019 (NZ) s 10.

    ↑

61. Ibid s 11(1).

    ↑

62. Ibid s 11(2)(a).

    ↑

63. Ibid s 11(2)(c).

    ↑

64. Ibid s 11(2)(b).

    ↑

65. Ibid s 11(5).

    ↑

66. Ibid s11(2)(b).

    ↑

67. Submission 26 (Chief Examiner, Victoria); Major Crime (Investigative Powers) Act 2004 (Vic) s 49.

    ↑

68. See Appendix D 14 [40].

    ↑

69. The Commission makes recommendations in Chapter 6 about contempt powers and procedures in the lower courts. In those courts, the registrar would be responsible for prosecuting the contempt charge before another judge.

    ↑

70. Broken Hill Pty Co Ltd v Dagi [1996] 2 VR 117, 137 (Brooking JA).

    ↑

71. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 1.14(2).

    ↑

72. Ibid r 66.12(1).

    ↑

73. Consultations 13 (Fiona K Forsyth QC, John Langmead QC), 25 (Magistrates’ Court of Victoria).

    ↑

74. Consultation 25 (Magistrates’ Court of Victoria).

    ↑

75. Consultation 17 (Victorian Bar).

    ↑

76. Submission 31 (County Court of Victoria).

    ↑

77. Consultation 24 (County Court of Victoria).

    ↑

78. Public Prosecutions Act 1994 (Vic) s 22(1)(b)(ii).

    ↑

79. Consultation 9 (Victorian Government Solicitor’s Office).

    ↑

80. Consultation 12 (Professor David Rolph).

    ↑

81. There are many examples in case law where witnesses, evidence or parties have been interfered with in civil proceedings and the contempt has been successfully prosecuted by a private party: see, eg, Ulman v Live Group Pty Ltd [2018] NSWCA 338; Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322; Bhagat v Global Custodians Ltd [2002] NSWCA 160.

    ↑

82. European Bank A-G v Wentworth (1986) 5 NSWLR 445, 460 (Kirby P).

    ↑

83. Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) 19.

    ↑

84. Digby J stated that ‘(a)lthough rarely exercised in the State of Victoria, the courts have accepted that an Attorney-General has the power to make an application that a person be punished for civil contempt’: Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 572 [15]. When the matter came before the Court of Appeal, that issue did not need to be decided but Beach JA remarked that ‘had it been necessary to determine, I would have determined that it is at least seriously arguable that the Attorney-General has similar standing to bring proceedings for civil contempts as he has to bring proceedings for criminal contempts’: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2013] VSCA 378 [11].

    ↑

85. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 [131].

    ↑

86. Broken Hill Proprietary Co Ltd v Dagi [1996] 2 VR 117, 124, 126.

    ↑

87. Consultation 9 (Victorian Government Solicitor’s Office).

    ↑

88. Boral Resources (Vic) Pty Ltd v CFMEU [2013] VSC 572 [12].

    ↑

89. Public Prosecutions Act 1994 (Vic) s 22(1)(ba)(iii), (c).

    ↑

90. Submission 28 (Director of Public Prosecutions).

    ↑

91. Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (December 2019).

    ↑

92. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.07.

    ↑

93. Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

    ↑

94. Ibid. Professor David Rolph told the Commission that if there is a court referral mechanism, the second decision maker should have the discretion to assess the allegation and evidence and determine whether it is appropriate to proceed: Consultation 12 (Professor David Rolph).

    ↑

95. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 33–6 [3.56]–[3.80].

    ↑

96. Ibid 35–8 [3.70]–[3.80].

    ↑

97. Ibid Questions 8–11.

    ↑

98. Submissions 14 (Children’s Court of Victoria), 26 (Chief Examiner, Victoria), 27 (Australia’s Right to Know coalition), 28 (Director of Public Prosecutions), 29 (Supreme Court of Victoria), 31 (County Court of Victoria); Consultation 9 (Victorian Government Solicitor’s Office). However, in the context of discussing scandalising contempt, the Law Institute of Victoria identified a number of problems with the show cause process adopted by the Court of Appeal in DPP (Cth) v Besim; DPP (Cth) v MHK (No 2) [2017] VSCA 165: Submission 22 (Law Institute of Victoria).

    ↑

99. Submission 31 (County Court of Victoria).

    ↑

100. Submission 29 (Supreme Court of Victoria); Consultations 9 (Victorian Government Solicitor’s Office), 15 (Children’s Court of Victoria) .

     ↑

101. Submissions 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston), 31 (County Court of Victoria).

     ↑

102. Submissions 26 (Chief Examiner, Victoria), 29 (Supreme Court of Victoria), 31 (County Court of Victoria).

     ↑

103. Submission 31 (County Court of Victoria); Consultation 9 (Victorian Government Solicitor’s Office).

     ↑

104. Submissions 14 (Children’s Court of Victoria), 31 (County Court of Victoria); Consultations 12 (Professor David Rolph), 13 (Fiona K Forsyth QC, John Langmead QC).

     ↑

105. Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

     ↑

106. Submission 20 (Criminal Bar Association).

     ↑

107. Consultation 9 (Victorian Government Solicitor’s Office).

     ↑

108. Submission 20 (Criminal Bar Association).

     ↑

109. Submission 7 (The Victorian Civil and Administrative Tribunal).

     ↑

110. Submission 31 (County Court of Victoria).

     ↑

111. Submission 28 (Director of Public Prosecutions).

     ↑

112. Submission 20 (Criminal Bar Association); Consultation 12 (Professor David Rolph).

     ↑

113. Submission 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston).

     ↑

114. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 32 [3.49]–[3.51].

     ↑

115. Magistrates’ Court Act 1989 (Vic) s 133(6); Coroners Act 2008 (Vic) s 103(9).

     ↑

116. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 33, Question 6.

     ↑

117. Submission 27 (Australia’s Right to Know coalition).

     ↑

118. Submission 29 (Supreme Court of Victoria).

     ↑

119. Consultation 24 (County Court of Victoria).

     ↑

120. Submission 28 (Director of Public Prosecutions); Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

     ↑

121. Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

     ↑

122. See, eg, Morris v Crown Office [1970] 2 QB 114, 122.

     ↑

123. See, eg, Keeley v Brooking (1979) 143 CLR 162, 174.

     ↑

124. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 55–6 [4.77].

     ↑

125. Ibid 75–6 [6.34]–[6.35].

     ↑

126. Ibid 29–30 [3.33]–[3.40], 49–50 [4.44]–[4.47].

     ↑

127. Submission 14 (Children’s Court of Victoria).

     ↑

128. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 50 [4.45].

     ↑

129. Ibid 31, Question 4.

     ↑

130. Submissions 11 (Victoria Legal Aid), 20 (Criminal Bar Association), 27 (Australia’s Right to Know coalition).

     ↑

131. Submission 20 (Criminal Bar Association).

     ↑

132. Submission 28 (Director of Public Prosecutions).

     ↑

133. Submission 26 (Chief Examiner, Victoria), citing Solicitor-General v Cox [2016] EWHC 1241 (QB) [31].

     ↑

134. Interpretation of Legislation Act 1984 (Vic) s 51.

     ↑

135. See, eg, Independent Broad-based Anti-corruption Commission Act 2011 (Vic) s 158; Major Crime (Investigative Powers) Act 2004 (Vic) s 50; Juries Act 2000 (Vic) s 86; Victorian Civil and Administrative Tribunal Act 1998 (Cth) s 139; Taxation Administration Act 1997 (Vic) s 73A(5). Other legislation conversely makes it clear that the contempt powers are not affected by any parallel offence: see, eg, Heritage Act 2017 (Vic) s 230(5); Fisheries Act 1995 (Vic) ss 129A(8), 130C; Environment Protection Act 1970 (Vic) ss 67AC(8), 67E(5); Evidence (Miscellaneous Provisions) Act 1958 (Vic) ss 42BN(3), 42BQ(5).

     ↑

136. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.14.

     ↑

137. VICT v CFMMEU [2018] VSC 794 [44]; Deputy Commissioner of Taxation v Gashi (No 3) [2011] VSC 448 [20]; National Australia Bank Ltd v Juric (No 2) [2001] VSC 398 [67]–[70].

     ↑

138. National Australia Bank Ltd v Juric (No 2) [2001] VSC 398 [70].

     ↑

139. VICT v CFMMEU [2018] VSC 794 [44]; Zhang v Fortune Holding Group Pty Ltd (No 2) [2018] VSCA 70 [33].

     ↑

140. Pelechowski v Registrar, Court of Appeal [1999] HCA 19 [148] (Kirby J), (1999) 198 CLR 435.

     ↑

141. Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650, 661; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201.

     ↑

142. Law Council of Australia, Submission No 6 to the Senate and Legal Constitutional Affairs References Committee, Law of Contempt (13 November 2017) [32].

     ↑

143. Submission 28 (Director of Public Prosecutions).

     ↑

144. Office of Public Prosecutions Victoria, Policy of the Director of Public Prosecutions for Victoria (17 December 2019) Ch 1.

     ↑

145. Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [118]–[119].

     ↑

146. Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650, 661. Cf DPP (Cth) v Sexton [2008] NSWSC 352, although in this case, the DPP did not make submissions on how the court should exercise its costs discretion even though the judge was critical of the defendant’s conduct.

     ↑

147. The County Court has the same sentencing discretion as the Supreme Court, but statutory limits are placed on the penalties that the Magistrates’ Court, Children’s Court and Coroners Court may impose for contempt of court, as discussed in Chapter 6.

     ↑

148. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(1)–(2).

     ↑

149. Contempt of court is not alone in Victoria in having a penalty that is at large. Section 320 of the Crimes Act 1958 (Vic) provides a statutory penalty for some (but not all) common law offences.

     ↑

150. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(3).

     ↑

151. Ibid r 75.11(4).

     ↑

152. Ibid r 75.12.

     ↑

153. See Appendix D 13 [36].

     ↑

154. Sentencing Act 1991 (Vic) s 109. This section creates 12 levels of penalty for fines, and nine levels of penalty in terms of imprisonment. The value of each penalty unit is fixed under section 5 of the Monetary Units Act 2004 (Vic). For the 2019–20 financial year, the value of a penalty unit in Victoria is $165.22: Treasurer (Vic), ‘Monetary Units Act 2004 (Vic)—Notice under Section 6, Fixing the Value of a Fee Unit and a Penalty Unit’ in Victoria, Victoria Government Gazette, No G 14, 4 April 2019, 544.

     ↑

155. Sentencing Act 1991 (Vic) s 113D.

     ↑

156. Submission 26 (Chief Examiner, Victoria); Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

     ↑

157. Submission 22 (Law Institute of Victoria).

     ↑

158. Submission 26 (Chief Examiner, Victoria); Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

     ↑

159. Submissions 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston), 11 (Victoria Legal Aid), 20 (Criminal Bar Association), 22 (Law Institute of Victoria), 27 (Australia’s Right to Know coalition); Consultation 12 (Professor David Rolph).

     ↑

160. Submission 14 (Children’s Court of Victoria); Consultation 24 (County Court of Victoria).

     ↑

161. Submission 31 (County Court of Victoria); Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

     ↑

162. Consultations 9 (Victorian Government Solicitor’s Office), 12 (Professor David Rolph).

     ↑

163. Submission 29 (Supreme Court of Victoria). See Crimes Act 1958 (Vic) ss 314 (perjury), 320 (perverting the course of justice and attempt to pervert the course of justice).

     ↑

164. Crimes Act 1958 (Vic) s 320.

     ↑

165. Sentencing Advisory Council, Maximum Penalties: Principles and Purposes (Preliminary Issues Paper, October 2010) <https://www.sentencingcouncil.vic.gov.au/publications/maximum-penalties-principles-and-purpsoes-preliminary-issues-paper>.

     ↑

166. A sequestration order directs named sequestrators to take possession of the defendant’s property and to retain it until the contempt has been purged and the court has made appropriate orders.

     ↑

167. See Appendix E for recommended penalties for all categories of contempt included in the proposed Act. See also Appendix G for an illustrative list of sentences imposed for different categories of contempt.

     ↑

168. See Appendix F for an illustrative list of comparative offences and penalties from Australian jurisdictions.

     ↑

169. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 32–3 [3.52]–[3.55].

     ↑

170. Ibid 33, Question 7.

     ↑

171. Submission 29 (Supreme Court of Victoria).

     ↑

172. Submission 20 (Criminal Bar Association).

     ↑

173. Submission 11 (Victoria Legal Aid).

     ↑

174. Children, Youth and Families Act 2005 (Vic) pt 5.3.

     ↑

175. This principle is reflected in Children, Youth and Families Act 2005 (Vic) s 361(1)(a)–(d). See generally Judicial College of Victoria, ‘29.1.1 Focus on Rehabilitation’, Children’s Court Bench Book (Online Manual, 5 April 2018) <http://www.judicialcollege.vic.edu.au/eManuals/CHCBB/index.htm#60154.htm>.

     ↑

176. The Commission notes that in addition to the proposed Act providing that the Sentencing Act and the Children, Youth and Families Act apply to sentencing for contempt, these Acts may require consequential amendments declaring their application to contempt proceedings.

     ↑