Contempt of Court: Consultation Paper (html)

2. Existing legal framework for contempt of court

Introduction

2.1 This chapter provides a brief history of the common law of contempt of court, including jurisdiction to punish, a discussion of the law’s purpose and an overview of its unique features and key manifestations.

2.2 The law of contempt of court has developed over many centuries to ensure that courts operate effectively and justice is administered properly without interference.^[1]

2.3 Traditionally, the law of contempt of court has been common law made by judges. Today the common law is supplemented by laws passed by parliaments. As a consequence, the law of contempt of court is a complex mix of statute and common law.

2.4 This creates challenges for the courts in seeking to apply the law and for legal practitioners and others in knowing what the law is, how to comply and when it may be applied against them.

2.5 General issues with the law of contempt of court are discussed in Chapter 3.

History and jurisdiction

2.6 Historically, the common law of contempt of court developed out of the King’s power as a source of justice to punish abuses and affronts to the King’s peace and the King’s courts.^[2] Subsequently this power was assumed by the superior courts of common law in England as part of their inherent jurisdiction.^[3]

2.7 In Australia, this inherent jurisdiction has been described as deriving from a superior court’s general responsibility for the administration of justice.^[4]

2.8 In Victoria, the inherent jurisdiction to punish for contempt of court vests in the Supreme Court of Victoria as ‘the superior Court of Victoria with unlimited jurisdiction’.^[5]

2.9 At common law and as part of its inherent jurisdiction, the Supreme Court of Victoria can punish summarily for contempt of court ‘wherever it may occur, whether inside or outside of the court’^[6] and can exercise its ‘protective jurisdiction’ to deal summarily with contempts of inferior courts.^[7]

2.10 In contrast, as inferior courts of the common law, the powers of the County Court of Victoria and the Magistrates’ Court of Victoria are limited to punishing for contempts committed in the face of that court.^[8] However, the County Court has been given by statute the same jurisdiction, powers and authority in respect of any contempt of the Court as the Supreme Court has in respect of a contempt of the Supreme Court.^[9]

2.11 The common law jurisdiction of an inferior court to deal with contempt of court can also be supplemented by express legislative provisions restating the aspects of the common law of contempt of court that are to apply.^[10] A table setting out the jurisdiction and powers of the courts to deal with contempt of court is provided at Appendix D.

2.12 Tribunals such as the Victorian Civil and Administrative Tribunal (VCAT) are not courts. They do not have any inherent common law power to address conduct constituting a contempt of court. Instead, a tribunal’s power to deal with conduct that may interfere with the proper administration of justice is limited to the powers expressly provided in that tribunal’s constituting statute.^[11]

2.13 The Victorian Parliament can amend the jurisdiction and powers of the Victorian Supreme Court.^[12] However, the High Court has held that there are constitutional limits to the exercise of this power. State parliaments cannot legislate to ‘alter the constitution or character of their Supreme Court [so] that it ceases to meet the constitutional description’ of a ‘Supreme Court of a State’.^[13] State parliaments also cannot confer functions or powers on a Supreme Court that are incompatible with the court’s institutional integrity as a repository of federal jurisdiction under the Australian Constitution.^[14] The ‘defining characteristics’ of a ‘court’ or ‘Supreme Court’ which ‘mark a court apart from other decision-making bodies’ must be maintained.^[15] However, there is no fixed set of defining characteristics, although courts have identified certain characteristics in case law.^[16] These constitutional limits may curtail the extent to which the common law of contempt of court can be reformed.

Purpose

2.14 The purpose of the law of contempt of court is to protect against any ‘interference with the due administration of justice, either in a particular case or more generally as a continuing process’.^[17] As Lord Diplock has stated, it ‘is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it’.^[18]

2.15 The law of contempt of court is therefore ‘based on the broadest of principles’ and is universal in its application.^[19]

2.16 However, as recognised by common law courts both in Australia and overseas, and as will be discussed in this consultation paper, the law of contempt of court is also ‘fraught with difficulties and uncertainties’.^[20]

Unique features of contempt of court

2.17 In empowering the courts to punish for contempt of court, including by imprisonment, the law of contempt of court has a number of unique features which distinguish it from other types of court proceedings.

2.18 Some of these features are discussed below.

The language of the law of contempt of court

2.19 As recognised by the New Zealand Law Commission (NZ Commission), the legal terminology used to describe the law of contempt of court is ‘antiquated’ and out of step with common understandings.^[21] Terms such as ‘in the face of the court’ and ‘scandalise’ have technical legal meanings unfamiliar to the general public. Not only does this create confusion but many of these terms are also fraught with legal uncertainties, as is discussed in later chapters.

2.20 In addition, confusion is created by the way in which the law of contempt of court borrows the language of criminal proceedings, by describing proceedings as ‘summary proceedings’ and contempt as an ‘offence’.

2.21 Notwithstanding the linguistic barriers, legal uncertainties and confusion such terminology causes, it continues to be used by the courts. Accordingly, this consultation paper also uses this terminology.

2.22 However, in considering the reform of the law of contempt of court, consideration will also need to be given to the reform of its language so that the law of contempt of court is clear and readily understandable both by those who may be affected by it as well by those who practise the law and are familiar with its currently archaic language. Such reforms will help provide certainty to what is an uncertain and confusing area of law.

The discretionary nature of the courts’ powers

2.23 The exercise of a court’s power to punish for common law of contempt of court is entirely at the discretion of the court before which or in relation to which the alleged contempt arises. For the Supreme Court of Victoria, this power may be exercised whenever and wherever an alleged contempt may occur.^[22]

2.24 Although the case law provides examples of when the courts’ contempt powers have been exercised in the past, there is no certainty about the future circumstances in which a judicial officer may exercise their power in relation to contempt of court.

2.25 As the courts have recognised, the common law of contempt of court provides the courts with flexibility and enables the recognition of contemptuous behaviour in new situations.^[23]

2.26 In addition, there is no certainty that just because one judicial officer considers certain conduct to be contemptuous, another judicial officer will also consider the same conduct to be contemptuous.^[24]

The standard of proof

2.27 All charges of contempt of court must be proved to the criminal standard of proof, that is, beyond all reasonable doubt.^[25] However, proceedings for contempt of court do not constitute a trial of a criminal charge, although as already noted the language of a criminal trial is often adopted.

Summary proceedings

2.28 Common law contempt of court is an indictable offence. However, unlike other indictable offences, which ordinarily involve trial by jury, charges for contempt of court are heard summarily by a judicial officer alone, and in the case of contempt in the face of the court they can be actioned on the spot by the presiding judicial officer using what this consultation paper describes as a ‘special summary procedure’.^[26] This special summary procedure is discussed in this chapter further below.

2.29 As noted at the beginning of this chapter, the law of contempt of court is today a mix of statute and common law, with contempt-related offences arising not just at common law but also in statute. As a consequence, not only is the law of contempt of court fragmented and disparate but so are its offences and prosecution procedures. These issues are discussed further in subsequent chapters.

2.30 A comparative table illustrating the fragmented nature of contempt-related offences, penalties and prosecution procedures is provided at Appendix E. Many other statutes also contain contempt-related offences. However for the purposes of this consultation paper the Appendix is limited to the most major and frequently used.

Who can bring proceedings

2.31 In Victoria, proceedings for common law contempt of court are commenced by way of summons or originating motion in either the Supreme Court^[27] or the County Court.^[28]

2.32 Depending on the type of contempt, the summons or originating motion may be filed by:

• a party to the proceedings in the event of a civil contempt

• the Attorney-General^[29]

• the Director of Public Prosecutions^[30] or

• the Court, which may direct the Prothonotary in the Supreme Court or the Registrar in the County Court to initiate proceedings.^[31]

2.33 The Supreme Court and County Court may also adopt a special summary procedure where there is an alleged contempt in the face of the court. This procedure enables a judge to immediately punish the contempt summarily, rather than commencing separate formal proceedings by way of summons or originating motion.^[32] This summary procedure is discussed further in Chapter 4.

The distinction between civil and criminal contempt

2.34 Historically, contempts of court have been categorised as either civil or criminal, depending on whether the purpose was to enforce a court’s process and orders, or to punish acts that interfere with the administration of justice, such as obstructing proceedings while court is sitting or publishing comments on a pending case.^[33]

2.35 The primary basis for this distinction is that disobedience of court processes and orders in civil proceedings is a civil wrong and enforcement is coercive or remedial in the interests of private individuals, whereas interfering with the administration of justice is a public wrong and enforcement is punitive in the public interest.^[34]

2.36 Although this distinction is time-honoured,^[35] it has also been the subject of various criticisms, including that:

• There is no real distinction between proceedings in the public interest and in the interest of the individual, as the underlying rationale of all contempt powers is ensuring the proper and effective administration of justice and vindicating a court’s authority.^[36]

• Contempts of court do not always fall neatly within either civil or criminal contempt, and often there may be a ‘middle ground’ where the two categories can overlap.^[37]

• Punitive and remedial objects are ‘inextricably intermixed’.^[38] As the High Court has stated, ‘punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes’.^[39]

• There are some circumstances in which breach of an order in civil proceedings cannot be remedied, in which case the only effect of contempt proceedings is the vindication of judicial authority.^[40]

• The purpose of contempt proceedings is not the same as the purpose of an individual bringing proceedings. When an individual brings proceedings it is to secure the benefit of an order or undertaking, whereas courts may exercise a ‘penal or disciplinary jurisdiction’ even when parties have settled their issues and do not wish to proceed further.^[41]

2.37 Notwithstanding these criticisms, and statements by the High Court expressing concerns about the distinction,^[42] Victorian courts continue to distinguish between civil and criminal contempt.^[43]

2.38 The distinction between civil and criminal contempt is discussed further in Chapter 6, in the context of disobedience contempt.

Manifestations of contempt of court

2.39 At common law, the courts have long recognised different manifestations of contempt of court. The distinctions between them are not clear—people can interfere with the administration of justice in many ways,^[44] and accordingly, the law of contempt of court can ‘assum[e] an almost infinite diversity of forms’.^[45] To add to this lack of certainty, as noted above, the common law of contempt of court has been supplemented by statutory restatement, particularly in terms of conduct amounting to contempt in the face of the court^[46] and juror contempt.^[47] Given this, the common law today provides only part of the picture of the type of conduct and the punishment available to a court to ensure the proper administration of justice.

2.40 In addition, there are different views about how the law of contempt of court is best described and classified.^[48] The categories of contempt of court are thus uncertain.^[49]

2.41 In this context, and as noted above, the common law gives courts the flexibility to find conduct contemptuous in novel circumstances and to address the infinite variety of behaviours that may interfere with the administration of justice. However, this flexibility also makes the content and application of the law of contempt of court unclear and uncertain.

2.42 A key concern for the Commission, and a theme running through this consultation paper, is therefore the lack of certainty and clarity in the common law of contempt of court, and the effect of that uncertainty on the proper and effective administration of justice and public confidence in the work of the courts.

2.43 As noted in Chapter 1, in undertaking this reference the Commission’s focus is on the most common manifestations of contempt, namely:

• contempt in or near the courtroom—contempt in the face of the court

• juror contempt

• non-compliance with court orders or undertakings—disobedience contempt

• contempt by publication—publications that interfere with or prejudice pending proceedings—sub judice contempt

• contempt by publication—publications that interfere with the administration of justice as an ongoing process—contempt by scandalising the court.

2.44 Each of these manifestations of contempt is outlined briefly below. They are discussed in detail in Chapters 4–8.

2.45 However, the manifestations of contempt are not discrete or fixed. In addition, and for completeness, it is noted that contempt of court can also arise where there is:

• interference with people who have duties to discharge in court proceedings, for example where a person improperly interferes with a witness by making threats

• interference with persons over whom the courts exercise special jurisdiction, such as wards of the court

• a breach of duty by persons who are officially connected with court proceedings

• abuse of process.^[50]

Contempt in the face of the court

2.46 The essence of contempt in the face of the court is articulated in the same broad terms as criminal contempt more generally. It is described as:

action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice.^[51]

2.47 Borrie and Lowe have described contempt in the face of the court, as ‘the unlawful disruption or obstruction of court proceedings’.^[52]

2.48 The distinguishing factor for this category of contempt is that the conduct must occur ‘in the face of the court’, an expression described by Justice Kirby in European Asian Bank AG v Wentworth as ‘ambiguous and antique’.^[53]

2.49 Today the common law of contempt in the face of the court has also been supplemented by statutory restatement.^[54]

2.50 The meaning of the term ‘in the face of the court,’^[55] together with the issue of the courts’ power to punish it immediately and summarily, is discussed in Chapter 4.

2.51 In addition, Chapter 4 considers how the law of contempt in the face of the court can disproportionately impact certain groups such as unrepresented litigants or litigants with mental illness.

Juror contempt

2.52 At common law, contempt by jurors is any conduct by members of the jury that interferes with the proper administration of justice. Most significantly, and as discussed in Chapter 5, it includes jury members making their own inquiries and undertaking their own unauthorised research in relation to trial participants and events. However, contempt by jurors can include other forms of misbehaviour associated with a trial, such as a refusal to answer questions or give an oath or affirmation. It can therefore in some circumstances also constitute contempt in the face of the court, as well as constituting a breach of one or more of the offence provisions in the Juries Act 2000 (Vic). Contempt by jurors can also be characterised as a manifestation of contempt by breach of duty by a person officially connected with court proceedings.^[56]

2.53 In addition to the common law, the duties and obligations of jury members are now also expressly stated in the Juries Act. These include a specific prohibition on jurors conducting research, among other things.^[57]

Disobedience contempt

2.54 Disobedience contempt arises when a person fails or refuses to comply with an order of the court or an undertaking given to the court. In these circumstances, contempt proceedings are one mechanism by which to compel compliance with the court order or undertaking given and may also provide a mechanism to punish the non-compliance, particularly where the non-compliance involves deliberate defiance of the court or where compliance is no longer possible.

2.55 However, the courts have held that such contempt proceedings should not be commenced where there are more appropriate civil remedies available to enforce an order of the court.^[58] It is noted that there are many other such mechanisms available to enforce court orders.^[59]

2.56 In addition to the technical issues, which include consideration of the distinction between civil and criminal contempt and its effects, is a more fundamental question of whether there is a need to retain the common law of disobedience contempt, particularly given the availability of alternative enforcement mechanisms.

2.57 Disobedience contempt and these issues are discussed further in Chapter 6.

Contempt by publication (1)—sub judice contempt

2.58 At common law, sub judice contempt arises where there is a ‘publication’ which has a ‘real and definite tendency’ as a ‘matter of practical reality’ to prejudice or embarrass particular legal proceedings.^[60]

2.59 There is no requirement to prove the actual effect of the publication or that the prejudice actually occurred.^[61] There is also no requirement that the contemnor had an intention to cause prejudice.^[62]

2.60 The tendency of a publication to prejudice proceedings is assessed at the time of publication, alongside a consideration of the nature of the publication and other circumstantial factors.^[63]

2.61 Publication of print or broadcast material is taken to occur at the time and place it was first made available to the public or a section of the public.^[64]

2.62 The courts have held that a publication will prejudice or interfere with proceedings where the publication:

• refers to an accused’s guilt or innocence^[65]

• details prior convictions,^[66] confessions or admissions by the accused,^[67]

• makes statements about the character of the accused^[68]

• gives opinions about the quality of the case.^[69]

2.63 As discussed in Chapter 7, there are technical issues with the law of sub judice contempt and the way in which the test is constructed. These issues have also been the subject of other reviews and inquiries.

2.64 However, also discussed in Chapter 7, the emergence of new media poses a fundamental challenge to the law of sub judice contempt. Unlike print or broadcast publications, publication in the new media is permanent,^[70] without a specific location,^[71] easily accessible by searching,^[72] and can be readily copied and published in digital media outside Victoria.^[73] The question therefore arises as to whether in this new media landscape there remains a role for the law of sub judice contempt in ensuring a fair trial, and whether the assumptions underpinning the law in terms of juror decision making are still valid. These questions are discussed further in Chapter 7.

Contempt by publication (2)—contempt by scandalising the court

2.65 Scandalising contempt is an interference with the course of justice arising from:

publications which tend to detract from the authority and influence of judicial determinations; publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office.^[74]

2.66 As stated by the High Court in Gallagher v Durack:

The authority of the law rests on public confidence, and it is important for the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges.^[75]

2.67 The law of scandalising contempt is therefore aimed at protecting the proper administration of justice as an ongoing process and at ensuring public confidence in the courts. The law of scandalising contempt is concerned with publications which comment on the courts and judges generally.^[76] In this context the courts have held that the power to punish for scandalising contempt is not to be used to punish personal attacks on individuals or judges.^[77]

2.68 As discussed in Chapter 8 there is some controversy surrounding the use of this manifestation of contempt, which has also been the subject of recent reviews in both the United Kingdom and New Zealand. Significantly, while this manifestation of contempt has been abolished in the United Kingdom, the NZ Commission has recommended its retention and codification.

1. C J Miller and David Perry, Miller on Contempt of Court (Oxford University Press, 4th ed, 2017) 2.

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2. Law Commission (New Zealand), Contempt in Modern New Zealand, Issues Paper (2014) 6.

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3. C J Miller and David Perry, Miller on Contempt of Court (Oxford University Press, 4th ed, 2017) 3–4.

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4. Grassby v R (1989) 168 CLR 1, 16 (Dawson J, Mason CJ, Brennan, Deane and Toohey JJ agreeing); see also R v Forbes; Ex parte Bevan (1972) 127 CLR 1, 7 (Menzies J, Barwick CJ, Stephen and Walsh JJ agreeing).

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5. Constitution Act 1975 (Vic) s 85(1).

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6. R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208, 241 (Latham CJ), 254 (Dixon J); R v Taylor; Ex parte Roach (1951) 82 CLR 587, 598 (Dixon, Webb, Fullagar and Kitto J).

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7. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.05(1)(c).

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8. Lane v Morrison (2009) 239 CLR 230, 243 (French CJ and Gummow J) citing Master Undertakers’ Association of New South Wales v Crockett (1907) 5 CLR 389, 392–3 (Griffith CJ); K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501, 538 (Gummow, Heydon, Hayne, Crennan and Kiefel JJ).

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9. County Court Act 1958 (Vic) s 54.

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10. See, eg, Magistrates’ Court Act 1989 (Vic) ss 133–135.

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11. See, eg, Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137.

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12. Constitution Act 1975 (Vic) s 85(4). For a discussion of this provision, see Greg Taylor, The Constitution of Victoria (Federation Press, 2006) 496–509.

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13. Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 580 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) citing Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 (Gummow, Hayne and Crennan JJ).

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14. Russell v Russell (1976) 134 CLR 495, 517 (Gibbs J); Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 96 (Toohey J), 103–4 (Gaudron J), 115–9 (McHugh J), 127–8 (Gummow J); A-G (NT) v Emmerson (2014) 253 CLR 393, 424 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

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15. Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 (Gummow, Hayne and Crennan JJ).

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16. Ibid.

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17. A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 449.

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18. Ibid.

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19. A-G (UK) v Newspaper Publishing [1988] Ch 333, 368.

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20. Re Lonrho PLC [1990] 2 AC 154, 201.

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21. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute, Report No 140 (2017), 27.

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22. R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208, 241 (Latham CJ), 254 (Dixon J); R v Taylor; Ex parte Roach (1951) 82 CLR 587, 598 (Dixon, Webb, Fullagar and Kitto J).

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23. R v Douglass (No 3) [2018] NSWSC 1939, [21]–[23] in which the presiding judge stated, ‘It does not follow from the fact that no earlier authority can be found which has dealt with such conduct, that [the conduct in question] could not involve contempt of the Court.’

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24. Compare a case in a Queensland where a magistrate reportedly threatened a witness with contempt for wearing a t-shirt with the words ‘villain’ and another case in Victoria where the judge held ‘It may be offensive, but it is not contempt of court, for a person to describe a judge as a wanker.’: Monique Preston, ‘Villains Shirt nearly Lands Man in Trouble’, Whitsunday Times (Web Page, 16 November 2018) <www.whitsundaytimes.com.au/news/villains-shirt-lands-man-in-court-trouble/3578005/>; Anissa Pty Ltd v Parsons [1999] VSC [22] (Cummins J).

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25. Witham v Holloway (1995) 183 CLR 525, 534.

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26. Ibid (Brennan, Deane, Toohey and Gaudron JJ) citing Hinch v A-G (Vic) (1987) 164 CLR 15, 49 (Deane J).

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27. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.06.

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28. County Court Civil Procedure Rules 2018 (Vic) r 75.06.

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29. R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208.

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30. Public Prosecutions Act 1994 (Vic) s 22(1)(ba)(iii).

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31. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.07; County Court Civil Procedure Rules 2018 (Vic) r 75.07.

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32. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75; County Court Civil Procedure Rules 2018 (Vic) r 75.

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33. Australian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106 (Gibbs CJ, Mason, Wilson and Deane JJ) citing Ansah v Ansah [1977] Fam 138, 144.

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34. Australian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106 (Gibbs CJ, Mason, Wilson and Deane JJ) citing Ansah v Ansah [1977] Fam 138, 144; Witham v Holloway (1995) 183 CLR 525, 531 (Brennan, Deane, Toohey and Gaudron JJ), 539 (McHugh J).

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35. See, eg, R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208, 253 (Dixon J); John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 363–4 (Dixon CJ, Fullagar, Kitto and Taylor JJ); Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483, 489 (Barwick CJ), 500 (Windeyer J).

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36. Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107 (Gibbs CJ, Mason, Wilson and Deane JJ); Witham v Holloway (1995) 183 CLR 525, 532–3 (Brennan, Deane, Toohey and Gaudron JJ).

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37. R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (Australian Section) (1951) 82 CLR 208, 253 (Dixon J); Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483, 501 (Windeyer J).

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38. Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ), 539 (McHugh J). See also Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 108 (Gibbs CJ, Mason, Wilson and Deane JJ).

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39. Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ).

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40. Ibid 532–3 (Brennan, Deane, Toohey and Gaudron JJ).

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41. Ibid 533–4 (Brennan, Deane, Toohey and Gaudron JJ); Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 108 (Gibbs CJ, Mason, Wilson and Deane JJ); Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483, 489 (Barwick CJ), 500 (Windeyer J).

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42. See, eg, Hearne v Street (2008) 235 CLR 125, 135 (Kirby J); Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107–8 (Gibbs CJ, Mason, Wilson and Deane JJ); Witham v Holloway (1995) 183 CLR 525, 532–4 (Brennan, Deane, Toohey and Gaudron JJ).

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43. See, eg, Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556 [19]–[29] (Zammit J) (citations omitted); VICT v CFMMEU [2018] VSC 794 [9]–[10] (McDonald J) (citations omitted).

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44. Committee on Contempt of Court (UK), Report of the Committee on Contempt of Court (December 1974) 3 [3].

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45. Joseph Moskovitz, ‘Contempt of Injunctions, Civil and Criminal’ (1943) 43 Col. LR 780.

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46. See, eg, Coroners Act 2008 (Vic) s 103; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137.

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47. Juries Act 2000 (Vic) ss 68, 69, 70, 71, 72, 73 and 78A.

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48. Compare Thomson Reuters, The Laws of Australia (Web Page, 25 September 2018) 10 Criminal Offences, ‘10.11 Administration of Law and Justice’; LexisNexis, Halsbury’s Laws of Australia (online at 25 September 2018) 105 Contempt.

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49. A-G (UK) v Times Newspapers Ltd [1974] AC 273, 294 (Lord Reid).

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50. For a discussion of these manifestations of contempt, see LexisNexis, Halsbury’s Laws of Australia (online at 25 September 2018) 105 Contempt.

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51. John C Fox, The History of Contempt of Court: The Form of Trial and the Mode of Punishment (Oxford University Press, 1927), 497; DPP (Vic) v Johnson [2002] VSC 583 [7]; R v Slaveski [2011] VSC 643 [17]; R v Vasiliou [2012] VSC 216 [13]–[14].

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52. Ian Cram, Borrie & Lowe: The Law of Contempt (LexisNexis, 4th ed, 2010) 456.

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53. European Asian Bank AG v Wentworth (1986) 5 NSWLR 445, 457.

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54. See, eg, Magistrates’ Court Act 1989 (Vic) s 133.

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55. European Asian Bank AG v Wentworth (1986) 5 NSWLR 445; DPP (NSW) v Australian Broadcasting Corporation (1987) 7 NSWLR 588; Fraser v The Queen (1984) 3 NSWLR 212.

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56. LexisNexis, Halsbury’s Laws of Australia (online at 25 September 2018) 105 Contempt, ‘2 Criminal Contempt’ [105–70].

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57. Juries Act 2000 (Vic) s 78A (Panel member or juror must not make enquiries about trial matters).

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58. Morgan v State of Victoria (2008) 22 VR 237, 269 [145].

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59. For a discussion of alternative mechanisms, see the section of this paper beginning at [6.33].

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60. Hinch v A-G (Vic) (1987) 164 CLR 15, 34.

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61. Bell v Stewart (1920) 28 CLR 419, 432.

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62. Hinch v A-G (Vic) (1987) 164 CLR 15, 46.

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63. Ibid 34; John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 371–2.

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64. Viner v Australian Building Construction Employees’ and Builders Labourers Federation (1963) 56 FLR 5, 22–3.

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65. DPP (NSW) v Wran (1987) 7 NSWLR 616.

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66. R v Hinch (No 1) [2013] VSC 520; R v The Herald and Weekly Times Ltd (2007) VR 248.

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67. A-G (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.

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68. Hinch v A-G (Vic) (1987) 164 CLR 15.

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69. Packer v Peacock (1912) 13 CLR 577.

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70. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 268 [76].

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71. Ibid [77].

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72. Ibid [78]–[83].

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73. Ibid 270 [84].

    ↑

74. R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434.

    ↑

75. Gallagher v Durack (1983) 152 CLR 238, 238.

    ↑

76. R v Fletcher (1935) 52 CLR 248, 257; R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434, 442.

    ↑

77. R v Dunbabin; Ex Parte Williams [1935] 53 CLR 434, 442.

    ↑