ASIC v Sigalla (No. 4) [2011] NSWSC 62

Supreme Court New South Wales

Medium Neutral Citation: ASIC v Sigalla (No. 4) [2011] NSWSC 62 Hearing dates: 14-17 September 2010 Decision date: 18 February 2011 Before: White J Decision: Refer to paras [194] - [197] of judgment. Catchwords: CONTEMPT - whether application to punish for contempt for disobedience of court's orders were civil proceedings to which the Civil Procedure Act 2005 and Uniform Civil Procedure Rules apply - whether application is a proceeding for an offence and therefore a criminal proceeding and not a civil proceeding - whether proceedings were civil or criminal proceedings for purposes of the Evidence Act 1995 - held character of principal proceeding in which alleged contempt committed does not determine character of contempt proceeding - held proceedings for criminal contempt are proceedings for an offence but proceedings for civil contempt are not - distinction between civil and criminal contempt - held proceeding included charges of criminal contempt - held Uniform Civil Procedure Rules r 29.10 did not apply where no case to answer submission made

CONTEMPT - evidence - standard of proof - Witham v Holloway (1995) 183 CLR 525 displaced by Evidence Act - proof required beyond reasonable doubt because proceedings are criminal proceedings within definition in Evidence Act - principles in Jones v Dunkel (1959) 101 CLR 298 inapplicable

CONTEMPT - orders restrained defendants from dealing with 'their assets' - whether orders restrained dealing with moneys not beneficially owned by the defendant - trust asset is property of trustee - beneficial interest not carved out of trust property leaving the trustee with a 'bare legal title' - 'their assets' includes assets held as trustee - Federal Bank of the Middle East v Hadkinson [2000] 1 WLR 1695; [2000] 2 All ER 395 disapproved