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 CONTEMPT - ambiguity - orders restraining dealing with 'their assets' ambiguous - defendant not liable for contempt if breach not established on a reasonable view of what the orders prohibit - not proved beyond reasonable doubt that defendant beneficially entitled to moneys transferred - orders breached but contempt not established CONTEMPT - proof of breach of court orders in relation to swearing affidavit of assets - genuine effort to comply - not proved beyond reasonable doubt that breach deliberate Legislation Cited: Civil Procedure Act 2005 Supreme Court Act 1970 Evidence Act 1995 Interpretation Act 1987 Corporations Act 2001 (Cth) Supreme Court Act 1958 (Vic) Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Land and Environment Court Act 1979 Family Law Act 1975 (Cth) Cases Cited: ASIC v Sigalla (No 3) [2010] NSWSC 1076 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Owners of Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612 Blake v Norris (1990) 20 NSWLR 300 Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371 La Trobe University v Robinson and Pola [1973] VR 682 Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32 Aztec Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2008] NSWSC 908 Wellesley v Duke of Beaufort (1831) 2 Rus & My 639; (1831) 39 ER 538 Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 Re Colina; ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 Pooley v Whetham (1880) 15 Ch D 435 Scott v Scott [1913] AC 417 John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 Ahnee v Director of Public Prosecutions [1999] 2 AC 294 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Attorney General (NSW) v Whiley (1993) 31 NSWLR 314 Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527 Ryan v Wright (No 2) [2004] NSWSC 1019 Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259; (2004) 52 ACSR 115 Circuit Finance Australia Limited v Sobbi [2010] NSWSC 912 Director of Public Prosecutions (Commonwealth) v Sexton [2008] NSWSC 352 Garnett v Bradley (1878) 3 App Cas 944 Queensland Fish Board v Bunney [1979] Qd R 301 Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127 Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15 Athens v Randwick City Council [2005] NSWCA 317 Nuclear Utility Technology & Environmental Corporation Inc v Australian Broadcasting Corporation [2009] NSWSC 78 Matthews v ASIC [2009] NSWCA 155 Energiser Australia Pty Ltd v Remington Products Australia Pty Ltd (No 4) [2008] FCA 864 Australian Securities & Investments Commission v Reid [2006] FCA 699 Australian Securities & Investments Commission v Matthews [2000] NSWSC 201 Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 Street v Hearne [2007] NSWCA 113; (2007) 70 NSWLR 231 Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92 Doyle v Commonwealth [1985] HCA 46; (1985) 156 CLR 510 ASIC v Sigalla (No 2) [2010] NSWSC 792 In the Marriage of J A and D M Lindsey [1995] FamCA 117; (1995) 19 Fam LR 649 In the marriage of Tate [2002] FamCA 356; (2002) 169 FLR 190; (2002) 29 Fam LR 195 Comptroller of Stamps (Vic) v Howard-Smith [1936] HCA 12; (1936) 54 CLR 614 Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4; (1998) 192 CLR 226 CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53; (2005) 224 CLR 98 DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510 Re Transphere Pty Ltd (1986) 5 NSWLR 309 Commissioner of Taxation v Linter Textiles Ltd (in liq) [2005] HCA 20; (2005) 220 CLR 592 Federal Bank of the Middle East Ltd v Hadkinson [2000] 1 WLR 1695; [2000] 2 All ER 395 R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 Black & Black v S Freedman & Co [1910] HCA 58; (1910) 12 CLR 105 Wyszynski v Bill [2005] NSWSC 110 Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 Adler v ASIC [2003] NSWCA 131; (2003) 46 ASCR 504 RPS v R [2000] HCA 3; (2000) 199 CLR 620 Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737 Texts Cited: William Hawkins, The Pleas of the Crown, 8th ed (1824) Ch 6 Cross on Evidence, LexisNexis looseleaf edition Category: Separate question Parties: Australian Securities and Investments Commission - Plaintiff Andrew Sigalla - Defendant Representation: Counsel: D R Stack (Plaintiff) S Robb QC with C Botsman (Defendant) Solicitors: Conrad Gray Solicitor (Plaintiff) n/a (Defendant) File Number(s): 2009/290316 Judgment 1HIS HONOUR : On 8 September 2010 I upheld the submission of counsel for Mr Sigalla that he had no case to answer in respect of many of the charges of the further amended interlocutory process. I found that he had a case to answer in respect of the charges in paras 1, 31, and 33-40 ( ASIC v Sigalla (No 3) [2010] NSWSC 1076). Mr Sigalla did not make a no case to answer submission in respect of the charges in paras 41 and 42 of the further amended interlocutory process. This judgment concerns the remaining charges. Preliminary issue: civil or criminal proceedings 2There is a preliminary matter to be dealt with. Prior to counsel for Mr Sigalla making his submission that there was no case to answer, I heard argument on the question as to whether, if such a submission were made but was not successful, or was not wholly successful, Mr Sigalla would then be entitled to adduce evidence otherwise than with the leave of the court. Mr Stack who appears for ASIC submitted that the position was governed by r 29.10 of the Uniform Civil Procedure Rules 2005 and if Mr Sigalla failed to establish that there was no case to answer in respect of any of the charges then he could not adduce evidence in the proceedings except by leave of the court by reason of r 29.10(4). He indicated that ASIC would oppose leave being granted. Rule 29.10 of the Uniform Civil Procedure Rules provides: " 29.10 Judgment for want of evidence (cf SCR Part 34, rule 8; DCR Part 26, rule 8; LCR Part 21, rule 6) (1) An opposite party may apply to the court to give judgment for the opposite party, either generally or on any claim for relief in the proceedings, on the ground that, on the evidence given, a judgment for the beginning party could not be supported. (2) Such an application may be made at any time after the conclusion of the evidence for the beginning party in his or her case in chief. (3) The court may not give judgment under this rule unless the opposite party satisfies the court that, on the evidence given, a judgment for the beginning party could not be supported. (4) If the opposite party fails to satisfy the court that, on the evidence given, a judgment for the beginning party could not be supported, the opposite party may not adduce evidence or further evidence in the proceedings generally or on the claim for relief concerned, as the case may be, except by leave of the court. (5) If not all opposite parties apply to the court under subrule (1), the court must not deal with any such application before the conclusion of the evidence given for all parties. " 3Mr Botsman of counsel who appeared for Mr Sigalla submitted that the Uniform Civil Procedure Rules did not apply as the present application was not a " civil proceeding " within the meaning of the Civil Procedure Act 2005. He submitted that the present application is a criminal proceeding and he was entitled to make a no case to answer submission at the conclusion of ASIC's case, without being put in jeopardy that if the submission were unsuccessful he would not be entitled as of right to adduce evidence in Mr Sigalla's case. 4Mr Sigalla was entitled to know what would be the consequence of his making a no case to answer submission. I heard argument on that question in advance of the submission being made. I am indebted to both counsel for the thoroughness of their arguments. 5Mr Botsman provided a brief outline of the nature of the no case submission to be advanced. At the close of argument I had not reached a concluded view as to whether r 29.10 applied. However, I was satisfied that if r 29.10 applied I would give leave to Mr Sigalla to adduce evidence if his no case to answer submission were wholly or partly unsuccessful. I said: " 1 The question whether r 29.10 applies is a difficult one. But rather than delay matters, I consider that I should indicate how, in any event, I think the proceedings should move forward. 2 If r 29.10 does not apply, then the defendant is entitled to make a no case to answer submission at the close of the plaintiff's case without being put to an election whether or not to call evidence, that is, without needing leave to call evidence if the application fails. The test for determining whether or not there is a case to answer will be the test in May v O'Sullivan [1995] HCA 38; (1955) 92 CLR 654, as explained in Amalgamated Television v Marsden [2001] NSWCA 32. 3 If this is a civil proceeding to which r 29.10 applies, then the same approach to determining whether there is a case to answer should be adopted, because the proceedings are essentially criminal in nature. Safeguards similar to those appropriate in criminal proceedings ought to apply. 4 Accordingly, I can indicate now that if I find that r 29.10 applies, then I will give leave to the defendant to adduce evidence generally, including in respect of any charges in respect of which a no case to answer submission might be made and might be unsuccessful. 5 In due course, I will give a full statement of my reasons for that conclusion, but I don't think I ought to delay the further progress of the case while they are prepared. " 6Similar issues are raised in relation to the rules of evidence. Mr Stack accepted that the charges must be established beyond reasonable doubt, but submitted that inferences could be drawn on the principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 that apply to civil proceedings, for what he said was Mr Sigalla's failure to call evidence. 7The submissions raise the distinction between civil and criminal contempts. Disobedience of a court's order by a party against whom the order is made is usually classified as a civil contempt. If contempt proceedings are brought, their object is usually to coerce the recalcitrant defendant into compliance or into remedying the breach. If the defendant refuses to do what he is ordered he may be imprisoned or fined, or, if the defendant is a company, its assets may be sequestrated. Fines may be coercive, particularly where they accrue until the breach is remedied. If the defendant is imprisoned for refusing to obey an order, on purging his contempt, he is entitled to be released. 8Criminal contempts involve interference with the administration of justice. They are not easily categorised. They include contempt in the face of the court, such as speaking insulting words to a judge in the discharge of his or her office, making affray or other disturbance that disrupts the business of the court, refusing to be sworn to give evidence or refusing to answer questions, interfering with witnesses, seeking to coerce or improperly influence a judge, publishing material that may interfere with a fair trial, and assisting a party to breach a court's order. A contumacious disobedience to the court's order that exhibits defiance of the court is also a criminal contempt. 9Proceedings whose essential purpose is to punish the contemnor for past breaches, rather than to coerce the contemnor into complying with the orders or to remedy past breaches, are classified as criminal contempts. 10In Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 Brennan, Deane, Toohey and Gaudron JJ held (at 534) that the differences upon which the distinction between civil contempts and criminal contempts is drawn are illusory. Punishment is punishment. The High Court held that all proceedings for contempt must realistically be seen as criminal in nature and accordingly must be proved beyond reasonable doubt. Their Honours went on to say that: " However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. " 11Nonetheless, the distinction between civil and criminal contempts has not been abolished. It remains enshrined in legislation ( Supreme Court Act 1970, s 101(5) and (6), s 101A; Hearne v Street [2008] HCA 36; (2008) 235 CLR 125). The distinction is important in determining whether the present application to commit Mr Sigalla for contempt is a civil proceeding within the meaning of s 4 of the Civil Procedure Act, and to the application of the Evidence Act 1995. 12Mr Stack submitted that although charges for contempt are essentially criminal in nature, it is well established that proceedings for contempt, whether characterised as civil contempt or criminal contempt, were brought in the court's civil jurisdiction and were governed by the rules of civil procedure. 13So far as I am aware, since Witham v Holloway was decided, in all proceedings for contempt brought in this court or in the Federal Court, it has been held or assumed that the charges must be proved beyond reasonable doubt, whether classified as civil or criminal contempts. However, Witham v Holloway was decided on the basis of the law as it stood before the introduction of the Evidence Act. The Evidence Act contains different provisions for criminal and civil proceedings, including provisions dealing with onus of proof. " Civil proceedings " and " criminal proceedings " are defined expressions. Likewise the Civil Procedure Act and the Uniform Civil Procedure Rules apply to civil proceedings. It is also a defined expression. The question whether the Civil Procedure Act and Uniform Civil Procedure Rules apply (which affects not only the making of a no case to answer submission, but also the power to order costs), and the question of what rules of evidence apply, depend on the construction of those definitions. Civil Procedure Act 2005 14Parts 3-9 of the Civil Procedure Act and the Uniform Civil Procedure Rules apply to all civil proceedings in the Supreme Court (s 4 and sch 1; and r 1.5 and sch 1, respectively). The expression " civil proceedings " is defined in s 3 of the Civil Procedure Act . That section provides relevantly: " 3 Definitions (1) In this Act: civil proceedings means any proceedings other than criminal proceedings. ... criminal proceedings means proceedings against a person for an offence (whether summary or indictable), and includes the following: (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence. " 15" Offence " is not defined. Nor is " proceedings ". 16" Civil proceedings " has the same meaning in the Uniform Civil Procedure Rules as it does in the Civil Procedure Act ( Interpretation Act 1987, s 11). 17Mr Botsman, for Mr Sigalla, submitted that the present application for punishment of Mr Sigalla for alleged contempt is a " criminal proceeding " within this definition as it is a proceeding against him for an offence. The Evidence Act 1995 18The operative provisions of the Evidence Act commenced on 1 September 1995. That Act specifies a civil standard of proof on the balance of probabilities, but having regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged, in a " civil proceeding " (s 140). It specifies the criminal standard of proof beyond reasonable doubt in a " criminal proceeding " (s 141). The Dictionary to the Evidence Act defines " civil proceeding " as " a proceeding other than a criminal proceeding ". A " criminal proceeding " is defined as follows: " criminal proceeding means a prosecution for an offence and includes: (a) a proceeding for the committal of a person for trial or sentence for an offence, and (b) a proceeding relating to bail, but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth." " Offence " is defined as " an offence against or arising under an Australian law ", and " Australian law " means " a law of the Commonwealth, a State or Territory " (Dictionary, Part 1). This is clarified by clause 9 of Part 2 of the Dictionary, which provides: " 9 References to laws (1) A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place. (2) A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia." The Current Proceedings 19The present application is brought by interlocutory process in proceedings commenced by ASIC by way of originating process on 26 August 2009. In its originating process ASIC sought orders pursuant to s 1323 of the Corporations Act 2001 (Cth), s 66 of the Supreme Court Act 1970, and in the inherent jurisdiction of the court, for the appointment of a receiver to the assets of five named defendants, or alternatively orders to prevent the removal and disposal of the defendants' assets. Those proceedings are unquestionably civil proceedings. 20Part 55, r 6(1) of the Supreme Court Rules provides: " 6 Procedure generally (1) Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders." 21The application was brought by interlocutory process, presumably because it was thought that r 2.2 of the Supreme Court (Corporations) Rules 1999 applies. It is unnecessary to consider whether the application was properly brought by way of interlocutory process under that rule or whether it should have been brought by way of notice of motion. In either case, the application is made in the proceedings already commenced for relief under s 1323 of the Corporations Act . 22Mr Stack for ASIC submitted that because the application for punishment of Mr Sigalla for alleged contempt is made in the existing proceedings and those proceedings are civil proceedings, the rules of civil procedure apply, whether or not the application, if considered as a separate proceeding, would be so characterised. Mr Botsman submitted that the application was a discrete and separate matter and a separate proceeding, as evidenced by the fact that had separate proceedings been commenced they could have been continued unless the court otherwise ordered. Moreover, as a matter of substance, the present application is discrete and separate from the application under s 1323 of the Corporations Act that led to the making of the orders with the alleged breach of which Mr Sigalla has been charged. 23I have concluded that the application to punish Mr Sigalla for contempt is a separate proceeding from the proceeding in which the orders allegedly breached were made, and its character is not determined by the character of the principal proceedings. I have concluded that proceedings to punish for a civil contempt are civil proceedings, but proceedings to punish for criminal contempt are not. I have concluded that these are criminal proceedings within the meaning of the Civil Procedure Act , the Uniform Civil Procedure Rules and the Evidence Act because some of the alleged contempts are criminal contempts. It follows that I have concluded that r 29.10 of the Uniform Civil Procedure Rules did not apply. My reasons follow. Character of principal proceedings does not determine character of contempt proceedings 24The word "proceeding" is capable of a variety of meanings. Its meaning depends upon the statutory context and the objects of the legislation in question. It may mean the whole of the processes that come before the court under the umbrella of one court file number (e.g. Owners of Strata Plan 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612 at [397]). It may mean the whole of a cause of action (e.g. Blake v Norris (1990) 20 NSWLR 300). It may mean a step in an action ( Blake v Norris at 306; Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371 at 388). 25The effect and purpose of s 4 of the Civil Procedure Act is that criminal proceedings not be governed by that Act or the Uniform Civil Procedure Rules. For reasons which follow, prosecution of a criminal contempt is prosecution of a common law offence. Where the substance of the "proceeding" is a prosecution for a common law offence, that purpose would be frustrated by treating the motion that an alleged contemnor be punished for criminal contempt as the same proceeding as the proceeding in connection with which the contempt was committed. 26It would defeat the purpose of the Evidence Act in establishing stricter evidentiary rules for criminal proceedings and be inconsistent with the reasoning in Witham v Holloway to say that even where criminal contempt is alleged, the character of the proceeding for the purposes of the Evidence Act is to be taken from the character of the principal proceeding from which the contempt arose. 27In Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32, discussed in more detail at [68]-[72] below, the Court of Appeal treated the notice of motion charging the respondent with contempt as a criminal proceeding to which the principles of criminal law and procedure applied, notwithstanding that it arose in the course of a civil proceeding. 28In Aztec Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2008] NSWSC 908 the question was whether the court had power to refer contempt proceedings to mediation pursuant to s 26 of the Civil Procedure Act . Hamilton J held that there was power to do so if the contempt proceedings were civil proceedings, but not if they were criminal proceedings because s 26 applied only to civil proceedings (at [26]-[27]). The proceedings were held to be civil proceedings because the contempt charged was a civil and not criminal contempt. The contempt alleged was a wilful contempt, but not a contumacious contempt and the purpose of the proceedings was to obtain compliance rather than inflict punishment (at [31]-[33]). His Honour did not consider that the question whether the application was a " civil proceeding " was to be determined by the character of the principal proceeding in which the notice of motion alleging the contempt was filed. 29Consistently with those cases, a motion that an alleged contemnor be punished for contempt should be characterised as a separate proceeding even though it is required to be brought in the principal proceeding. In substance the present application is a separate proceeding. The principal proceeding provides only the background against which the charges are to be considered. The allegations in the application and the evidence adduced in support of them are separate and distinct from the claims and the evidence in support of the claims in the principal proceedings. 30The fact that the present application would be validly commenced even if brought separately, demonstrates that it is substantively a separate proceeding. 31For these reasons, I consider that the present application should not be characterised as a civil proceeding merely because it is brought in a civil proceeding. 32I do not consider that the decision of the Full Court of the Supreme Court of Victoria in La Trobe University v Robinson and Pola [1973] VR 682 indicates a contrary conclusion. Mr Stack did not submit otherwise. One issue in that case was whether an appeal lay to the Full Court against an order by the primary judge dismissing an application to set aside an order of another judge giving leave to issue a writ of attachment. The appellants were student demonstrators at La Trobe University who had defied orders prohibiting them from trespassing. They were attached for contempt. The University argued that no appeal lay to the Full Court because the contempts committed in the civil action were criminal in nature and there was no statutory ground of appeal in a criminal matter (at 688). In rejecting that submission Smith ACJ, with whom Adam and Newton JJ agreed, held (at 688) that because the action in which the injunctions were ordered was a civil action, the appeal was not in a criminal matter but a civil matter. The Full Court held that the question whether the appeal was in a criminal matter was determined not by the nature of the contempt alleged, but by the nature of the action in which the order was made. That was a different question from whether the application to charge the appellants with contempt was a criminal matter. The issue concerned the construction of the relevant provisions of the Supreme Court Act 1958 (Vic) that had no similarity to the statutory provisions relevant to the present case. Criminal contempt but not civil contempt is a common law offence 33Proceedings for contempt, whether civil or criminal, have sometimes been described as proceedings for an offence. Wellesley v Duke of Beaufort (1831) 2 Rus & My 639; (1831) 39 ER 538 concerned contempt by a member of the House of Commons by removing his daughter, who was a ward of the court. He claimed that he could not be attached for the contempt because of parliamentary privilege. Lord Brougham LC held that if the contempt showed criminality and the sentence was penal, the privilege was ousted (at 667, 548). It was contended that parliamentary privilege was a protection against arrest and confinement in all cases except felony, treason and breach of the peace. In rejecting this argument Lord Brougham LC said (at 663, 547): " There are, however, many offences - and this is the other ground of my denying that to be the right distinction - offences for which no man can doubt the right of the Courts of Common Pleas, of Exchequer, and of Chancery to commit; offences for which till now their right to commit has never been disputed; offences involving no breach of the peace, and for which by every day practice, parties are committed by those Courts, and by the Court of Kings Bench, not sitting as a criminal Court. " 34In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, a case concerning civil contempt, Gibbs CJ, Mason, Wilson and Deane JJ said (at 115): " Contempt of court is a distinctive offence attracting remedies which are sui generis ... " 35In Re Colina; ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 at [109] and [111] (428 and 429) Hayne J also referred to contempts as constituting offences, without distinction as to whether the contempts were civil or criminal. 36However, in the context of legislation dealing with "offences" or a "criminal cause or matter" it has been held that a civil contempt is not an offence ( Pooley v Whetham (1880) 15 Ch D 435 at 440, 443 and 445; Scott v Scott [1913] AC 417 at 440, 443, 444, 455-462, 486). In John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 the plurality of the High Court (Dixon CJ, Fullagar, Kitto and Taylor JJ) said (at 364) that contempt through disobedience of a court's order was not criminal. In Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at 497-498, Windeyer J said that civil contempts do not involve an offence. 37On the other hand, criminal contempts of court have long been treated as common law offences, although sometimes described as " an offence sui generis and ... not part of the ordinary criminal law " ( Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 306). Criminal contempts of court were characterised as common law offences in William Hawkins, The Pleas of the Crown, 8 th ed (1824) Ch 6, where they are classified as one of a number of offences against the King, including contempts against the King's palace, his prerogative, person or government, and title. Thus it is and always was a common law offence to speak contemptuous words to the judge in execution of his or her office or to make an affray in the courts (this is not of course an all inclusive description of criminal contempts). 38In Re Colina; ex parte Torney the respondent was charged with contempt of scandalising the court. This was described by the majority of the High Court as a common law offence triable summarily (at 393, 399, 428-429, 433). Kirby J also held that the contempt was an offence (at 411-412). 39In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309, a case of criminal contempt, Kirby P, with whom Hope AJA agreed, said (at 314): " A conviction of contempt of court is a conviction of an offence, criminal in nature. " 40This was repeated by the Court of Appeal in Attorney General (NSW) v Whiley (1993) 31 NSWLR 314 at 320. That was another case of criminal contempt. The Court said (at 320): " A conviction for contempt of court is a conviction for an offence which is criminal in nature. Punishment of the convicted contemnor must therefore take into account considerations normally applicable to the punishment of crime in general and this crime in particular. ... Being a common law offence there is no statutory maximum penalty. " 41It has been held that the Crimes (Sentencing Procedure) Act 1999 is applicable where punishment for contempt involves a custodial sentence ( Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527; Ryan v Wright (No 2) [2004] NSWSC 1019 at [21]; Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259; (2004) 52 ACSR 115 at [26]; Circuit Finance Australia Limited v Sobbi [2010] NSWSC 912 at [6]). That is so at least for a criminal contempt. The Act applies to the sentencing of an "offender", meaning a person whom a court has found guilty of an "offence". "Offence" is not otherwise defined. 42Mr Stack submitted that the definition of "criminal proceedings" in s 3 of the Civil Procedure Act referred only to those offences as were truly criminal in character. I agree. The dichotomy between civil and criminal proceedings in the Civil Procedure Act indicates that this is so. The Uniform Civil Procedure Rules assume that the Rules apply to at least some cases of contempt. 43Rule 1.7 of the Uniform Civil Procedure Rules provides that the rules of court specified in Schedule 2 prevail over the Uniform Civil Procedure Rules. One of such rules is r 7 of Pt 55 of the Supreme Court Rules. It requires that a statement of charge specifying the contempt of which the contemnor is alleged to be guilty be subscribed to, or filed with, the notice of motion or summons. The necessary implication of r 1.7 is that the Uniform Rules Committee considered that the Rules would apply to at least some charges of contempt. Were it otherwise there would be no question of Pt 55 r 7 of the Supreme Court Rules prevailing over the Uniform Civil Procedure Rules. 44However, it is not legitimate to construe the definition of " civil proceedings " in s 3 of the Civil Procedure Act by amendments to the Rules initially contained in Schedule 7 to the Civil Procedure Act made by the Uniform Rules Committee. Section 9 of the Civil Procedure Act only empowered the Committee to amend the Rules in conformity with the Act. Schedule 7 of the Civil Procedure Act (which originally contained the Uniform Civil Procedure Rules, albeit that the Schedule was repealed by Schedule 5 of the same Act) did not include the reference to Pt 55 r 7 of the Supreme Court Rules in Schedule 2. That reference was included by an amendment to the Rules made by the Uniform Rules Committee prior to the commencement of the Act (Schedule 2 was amended by the insertion of the reference to Pt 55 of the Supreme Court Rules by Uniform Civil Procedure Rules (Amendment No. 1) No. 395 of 2005, made by the Rule Committee on 1 August 2005. It commenced on the commencement of s 9 of the Civil Procedure Act ). 45Nonetheless, it is unlikely that the definition of " civil proceedings " in the Civil Procedure Act was intended to exclude all cases of contempt, as this would mean that there would be no statutory power to order costs in contempt proceedings. An order for costs, usually on the indemnity basis, is often the only sanction against a proved civil contempt. 46In Director of Public Prosecutions (Commonwealth) v Sexton [2008] NSWSC 352, Howie J held that the Criminal Procedure Act 1986 (NSW) did not apply to proceedings for contempt, and that the Supreme Court Act and the Supreme Court Rules applied to the making of an order for costs. His Honour's reasons for concluding that the Criminal Procedure Act did not apply even to a case of criminal contempt are compelling. However, his Honour did not identify any specific power to order costs under the Supreme Court Act or the Supreme Court Rules. His Honour did not refer to the Civil Procedure Act, or to the Uniform Civil Procedure Rules. It is not clear what provision of the Supreme Court Act or the Supreme Court Rules his Honour had in mind as conferring a power to order costs. Section 76 of the Supreme Court Act formerly conferred power to order costs in respect of proceedings governed by that Act, including any proceedings for contempt brought in accordance with Pt 55, whether the contempt was civil or criminal. That section was repealed by clause 5.47 [3] of Schedule 5 of the Civil Procedure Act . Part 55 of the Supreme Court Rules does not deal with costs. 47Howie J did not find that the proceedings were civil proceedings governed by the Civil Procedure Act to which s 98 of that Act (which deals with costs) applied. His Honour did not say so and did not address the issues which would then arise. 48It seems to me, with respect, that as the courts of common law had no inherent jurisdiction to order costs ( Garnett v Bradley (1878) 3 App Cas 944 at 962; Queensland Fish Board v Bunney [1979] Qd R 301 at 303), and as the Court of Chancery would have had no jurisdiction to deal with a criminal contempt such as that alleged in Director of Public Prosecutions (Commonwealth) v Sexton , the court had no jurisdiction to order costs in that case if, as I consider to be the case, it was a proceeding for an offence within the definition of "criminal proceeding" in the Civil Procedure Act . 49The problem did not arise prior to the introduction of the Civil Procedure Act because the Supreme Court had power to order costs under s 76 of the Supreme Court Act in all cases of contempt, civil or criminal. In my view it retains that power in respect of civil contempts which should not be characterised as proceedings for an offence ( Scott v Scott ; John Fairfax & Sons Pty Ltd v McRae at 364; Australian Consolidated Press Limited v Morgan at 497-498). In cases of civil contempt, the award of costs, often on the indemnity basis, is an important sanction, and not infrequently a sufficient sanction, to mark the court's condemnation of the breach of its orders. 50If the current application is to deal with Mr Sigalla for alleged civil contempts, I am of the view that the proceedings are civil proceedings to which r 29.10 applies. But that is not the case if Mr Sigalla is charged with one or more criminal contempts. If the application charging Mr Sigalla with contempt is properly characterised as a proceeding for criminal contempt, then unless there be authority to the contrary, I consider that the proceedings are proceedings for an offence and not civil proceedings to which the Uniform Civil Procedure Rules apply. Although tried summarily and assigned by Pt 55 r 6 to the Division in which the proceedings to which the contempt relates were instituted, in this case the Equity Division, the proceedings are truly criminal, and not "quasi-criminal". The question is whether Witham v Holloway , or other binding authorities, are authority to the contrary. 51Mr Stack submitted that cases of contempt are sui generis and whether characterised as civil contempts or criminal contempts (itself an illusory distinction ( Witham v Holloway at 534)), such contempts were not "offences" within the definition of " criminal proceedings " in s 3 of the Civil Procedure Act . He referred to numerous cases, in particular Witham v Holloway , which have held that although all proceedings for contempt are in their nature criminal, rules of civil procedure apply. The problem with these authorities is that they either involved different statutory provisions, or did not address the applicable statutory provision. 52The background to Witham v Holloway is Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127. McLelland J (as his Honour then was) was concerned with a breach of an undertaking where the breach had been established on the balance of probabilities, but not beyond reasonable doubt. His Honour concluded that in the case of a wholly civil contempt the civil standard of proof applied, although the degree of satisfaction for which that standard called varied according to the gravity of the facts to be proved and the consequences flowing from the finding. In the case of a criminal contempt proof was required beyond reasonable doubt (at 136-137). His Honour characterised the charge before him as a civil contempt and upheld the charge applying the civil onus of proof. 53This decision was followed at first instance in Witham v Holloway , but was overruled by the High Court in that case. Brennan, Deane, Toohey and Gaudron JJ described the distinction between civil and criminal contempts as follows (at 530): " In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.14 As well, in the case of some orders, described in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd as involving 'arbitrary classification', disobedience constitutes criminal contempt. They are orders forbidding interference with a ward of court, orders for the delivery up of a child and non-molestation orders. And it has been held that breach of a court order by a solicitor or by a liquidator is also a criminal contempt. " 54Their Honours also said (at 531): "The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process. " 55Their Honours went on to reject as illusory the differences between civil and criminal contempts on which the distinction is based. In the course of doing so, their Honours rejected the suggested distinction between proceedings in the public interest and those that are coercive or remedial in the interests of the private individual as being a satisfactory basis for the distinction between civil and criminal contempt (at 532). Their Honours concluded (at 534): " Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as 'punitive' and others as 'remedial or coercive'. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking. The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch , that all proceedings for contempt 'must realistically be seen as criminal in nature'. The consequence is that all charges of contempt must be proved beyond reasonable doubt. " 56There was no question in Witham v Holloway of construing a statutory definition that prescribed different rules of procedure, or different rules of evidence, according to whether or not the proceedings were for an offence. 57A further question arose in Witham v Holloway as to whether there was power to order a retrial. Counsel submitted that the only power to order a retrial of a criminal matter was to be found in s 8 of the Criminal Appeal Act 1912 and as the appeal was not under that Act there could be no order for retrial (at 534). It was in this context that Brennan, Deane, Toohey and Gaudron JJ said (partly quoted at [10] above): " However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. There is no basis, in our view, for importing into the law of contempt the nineteenth century rules which allowed a verdict of guilty, given in a jury trial, to be quashed on appeal, but did not permit of an order for retrial. " 58Mr Stack submitted that this showed that even though the application is essentially criminal in nature, the proceeding is nonetheless a civil proceeding to which rules of civil procedure, other than the onus of proof, apply. He submitted that this is confirmed by subsequent authority. 59At the time Witham v Holloway was decided, s 48(2)(j) of the Supreme Court Act assigned to the Court of Appeal proceedings in the Court for the punishment of contempt of the Court or of any other court. Subsection 48(4) provided: " 48 ... (4) This section does not affect - (a) the powers of the Court in a Division in relation to punishment for - (i) contempt in the face of the Court in that Division or in the hearing of the Court in that Division; (ii) disobedience to a judgment or order of the Court in that Division; or (iii) breach of an undertaking given to the Court in that Division; or ... " 60Hence, all contempts, whether characterised as criminal or civil, arising from disobedience to a judgment or order of the court in a Division were assigned to the Division. Under s 101(1)(a) an appeal from the judgment of the Division lay to the Court of Appeal. Under s 75A(10) the Court of Appeal could make any order which the nature of the case required. This included the power to order a re-hearing (per McHugh J at 549-550). The Criminal Appeal Act 1912 provided, amongst other things, for an appeal to the Court of Criminal Appeal by a person convicted of an offence by the Supreme Court in its summary jurisdiction (s 5AA). That section did not apply to contempt proceedings whether civil or criminal in character, as these were specifically dealt with by s 48 of the Supreme Court Act . Section 17 of the Supreme Court Act provided that that Act did not apply to proceedings specified in the Third Schedule, which listed various types of criminal proceedings, but not proceedings for contempt. As Howie J held in Director of Public Prosecutions (Commonwealth) v Sexton , proceedings for contempt are governed by the Supreme Court Act and the Supreme Court Rules (at [8]-[12]). 61In deciding whether there was power to order a re-hearing, no question of statutory construction arose in Witham v Holloway such as arises now under the Civil Procedure Act and the Evidence Act . The High Court was not required to consider, and did not consider, whether the proceedings were properly characterised as proceedings for an offence. It may be inferred from the court's insistence that all charges of contempt are criminal nature that had the question arisen, it is unlikely to have been held that no proceedings for contempt are proceedings for an offence. 62On the other hand, it cannot be assumed that because the High Court said all contempts were criminal "in nature", that it would have held that all charges of contempt were charges of an offence. That would have required departure from previous decisions of the highest authority, including the High Court itself (see para [36] above). Subsequently, in Hearne v Street , when construing a statutory reference to "criminal contempt", the High Court applied the traditional distinction. It did not say that all contempts are criminal in nature and therefore are all criminal contempts. 63In Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15, the contempt alleged was a criminal contempt for publishing material intending to influence court proceedings. The offenders were convicted and fined and the individual defendant was also imprisoned. Appeals against the conviction were dismissed by the High Court. On the question of costs the High Court said as follows (at 89-90): "The appellants submit that in the exercise of its discretion the Court should not make any order for costs. An analogy is sought to be drawn between the present case and an application for special leave to appeal following a trial on indictment for a criminal offence. In the later kind of case, the established practice of the Court is not to make any order for costs, save where the Crown is an unsuccessful applicant: Reg. v. Martin (1984) 58 ALJR 217 at 218; 53 ALR 84 at 84. However, is our view [sic] , the analogy which the appellants seek to draw is not apt for present purposes. Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event. There are many instances of the application of this rule to cases of contempt of court in this Court, including Consolidated Press Ltd. v. McRae (1955) 93 CLR 325, John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, James v Robinson (1963) 109 CLR 593 and Doyle v The Commonwealth (1985) 156 CLR 510: see also R v Taylor; Ex parte Roach (1951) 82 CLR 587." The application involved no question of statutory construction. 64In Re Colina; Ex Parte Torney , Hayne J said (at 428 [109]): " [109] Although I accept that it is right to speak of an 'offence' of contempt, the use of that term should not be permitted to obscure the significant differences between the powers that are invoked against an alleged contemnor and those that are set in train under the criminal law. As was said in Hinch v Attorney-General (Vic) [No 2]: 'Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event.' The power to punish for contempt is an inherent power of courts charged with 'the function of superintending the administration of justice'. It is a power that is invoked sparingly but in a very wide variety of circumstances. There are, in that sense, many forms of contempt; there is no single 'offence' of the kind that the criminal law knows. " 65I do not understand Hayne J to be saying that no offences of the kind that have been traditionally classified as criminal contempts are offences against the criminal law. Rather, his Honour was emphasising that there are many forms of contempt and not a single offence (see at [110]). 66Mr Stack placed particular reliance on the decision of the Court of Appeal in Athens v Randwick City Council [2005] NSWCA 317 (reported in part but not on this point at (2005) 64 NSWLR 58). Hodgson JA, with whom Santow and Tobias JJA agreed, noted (at [62]) the definitions of " civil proceeding " and " criminal proceeding " in the Evidence Act but did not decide whether the proceedings at hand were a " prosecution for an offence " for the purposes of the Evidence Act . Nonetheless the Court of Appeal rejected challenges to the procedure adopted in the Land and Environment Court. The appellant contended that he had been denied the opportunity to make a submission that there was no case to answer, and that the Council had been permitted to address in reply. In rejecting the application for the charges to be dismissed on the ground that there was no case to answer, the primary judge said that the proceedings remained civil proceedings and were criminal " only to the extent that the requisite standard of proof for a criminal proceedings is to be applied " (at [87]). The Court of Appeal shortly rejected the challenges to these rulings. Hodgson JA said: " [89] In my opinion, Witham v Holloway makes it clear that the procedure in contempt proceedings is not the same as in a criminal trial. [90] In my opinion it was within the discretion of the primary judge not to entertain a submission of no prima facie case; and in any event, it is plain that there was a prima facie case. [91] In my opinion, it was within his discretion to allow an address in reply. In any event, there was no conceivable prejudice in circumstances where the appellants were themselves allowed a further reply. [92] In my opinion also it was within the primary judge's discretion to allow the re-opening of the case. No error is shown in his reasons. No tactical advantage had been sought by the Council. No prejudice was caused to the appellants, as compared to the situation they would have been in if the Council's affidavits had been read at the appropriate time. " Presumably in para [89] of the judgment Hodgson JA was referring to the sentence in Witham v Holloway that " to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge ". 67The hearing in the Land and Environment Court was before the introduction of the Civil Procedure Act . The only consideration given to whether the proceedings were "proceedings for an offence" was in the context of the Evidence Act , and that question was not decided. Section 67(1)(d) of the Land and Environment Court Act 1979 provided that the Land and Environment Court had and could exercise the functions vested in the Supreme Court in respect of the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Court or of any process issuing out of the Court. All that can be said is that the Court of Appeal found that the proceedings in the Land and Environment Court under the Land and Environment Court Act at that time were civil proceedings to which rules of civil procedure applied. That conclusion does not govern the present question. Moreover, the proceedings were, or were treated as, proceedings for a civil contempt ( Nuclear Utility Technology & Environmental Corporation Inc v Australian Broadcasting Corporation [2009] NSWSC 78 at [97]). 68Athens v Randwick City Council is not authority that all cases of contempt are to be treated as civil proceedings to which rules of civil procedure apply. The Court of Appeal did not seek to distinguish or explain Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32. (The decision is reported in (2001) 122 A Crim R 166, where it is wrongly stated to be a decision of the Court of Criminal Appeal and the wrong neutral citation is given). That was a case of alleged contempt of orders of the Court of Appeal in defamation proceedings prohibiting the publication of the name or other material likely to identify a witness proposed to be called in the proceedings. The case was heard in the Court of Appeal's original jurisdiction because the application was to punish an alleged contempt for disobedience of the Court of Appeal's orders. Those proceedings were assigned to the Court of Appeal ( Supreme Court Act , s 48(2)(i)(ii)). 69Ipp AJA, with whom Powell and Giles JJA agreed, said (at [32]) that it was undoubtedly correct that the application was " criminal in nature and the criminal standard of proof applied ". His Honour also recorded that the parties accepted that " as the proceedings were criminal in nature, Mr Marsden was entitled to make a no case to answer submission at the close of the claimant's case, and the parties accepted that the general principles governing such submissions were of application " (at [33]). The Court of Appeal did not suggest that this position was incorrect. Rather, the no case to answer submission was entertained and upheld. In so doing, the court held that not only in respect of jury trials, but in criminal trials by judge alone, the question to be determined on a no case to answer submission at the close of the prosecution case was whether the prosecution evidence, taken at its highest, was capable of establishing guilt beyond reasonable doubt (at [48]-[50]). There was no suggestion that the proper approach on the no case to answer submission was that applicable in a civil proceeding, where the court may consider whether evidence is so unsatisfactory that it should not be accepted ( Cross on Evidence , LexisNexis looseleaf edition at [11090]). 70The Court of Appeal held that the evidence was not capable of establishing beyond reasonable doubt Mr Marsden's knowledge of the orders or their substance prior to the publications alleged to constitute the contempts. 71The Court of Appeal did not characterise the contempts as criminal or civil as it accepted that they were criminal in nature. Although the contempts alleged were disobedience of the orders of the Court of Appeal, they were made to protect the safety of a third party rather than the interests of the party to the litigation. They would properly be classified as alleged criminal contempts whether or not the breaches were shown to be contumacious. (If it had been established that Mr Marsden had knowledge of the orders, there would have been a powerful case for saying that the breaches were contumacious.) Whether the breaches were contumacious or not, the proceedings would be properly characterised as punitive rather than remedial or coercive. 72Amalgamated Television Services Pty Ltd v Marsden and Athens v Randwick City Council can be reconciled on this ground that in the former, criminal contempt was alleged, and in the latter, civil contempt was alleged. 73Mr Stack also referred to Matthews v ASIC [2009] NSWCA 155 where Tobias JA, with whom Basten and Campbell JJA agreed, said at ([38]-[39]): " [38] As is pointed out in Arlidge, Eadie & Smith on Contempt, 3rd Ed (2005) Sweet & Maxwell at para 3-74, with regard to civil contempt, given that the liberty of the subject is at stake, although the courts have in certain respects insisted upon the greater safeguards normally associated with the criminal trial process, such as in relation to the standard of proof required to establish a charge of contempt, they have also been careful to resist the full assimilation of civil contempt into the framework of criminal safeguards: Arlidge op cit at 3-75. Thus, in Witham v Holloway at 534, their Honours (in their joint judgment), whilst reiterating that all charges of contempt must be proved beyond reasonable doubt, also observed: However, to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. [39] A similar view was expressed by Wall J in Re B (A Minor) (Contempt of Court: Affidavit Evidence) [1996] 1 WLR 627 where, at 639A, his Lordship observed: 'I respectfully agree ... that the analogy with criminal proceedings can be taken too far and that in civil proceedings for contempt the Court will introduce those safeguards which are necessary for the protection of the alleged contemnors but will not import criminal procedure wholesale or indiscriminately.'" 74Mr Stack submitted that this showed that the Court of Appeal treated the charges of contempt as being made in civil proceedings. The issue to which these observations went was whether for the charges to be established it was necessary that particulars of the charge be made out in their entirety, or whether only those elements of the charges necessary to establish breach of the relevant orders needed to be established (at [67]). There was no issue before the court whether the proceedings were " civil proceedings " or " criminal proceedings " within the meaning of the Civil Procedure Act . The same is true of the other authorities relied on by Mr Stack ( Energiser Australia Pty Ltd v Remington Products Australia Pty Ltd (No 4) [2008] FCA 864 at [13]-[14]; Australian Securities & Investments Commission v Reid [2006] FCA 699 at [18],[21]; Australian Securities & Investments Commission v Matthews [2000] NSWSC 201 at [13]). 75For these reasons I conclude that whether r 29.10 of the Uniform Civil Procedure Rules applies depends on whether Mr Sigalla is charged with civil contempt or whether the charges include alleged criminal contempts. Charges include alleged criminal contempts 76Whilst in Witham v Holloway the High Court found that the differences that led to the distinctions between civil and criminal contempt were illusory, that distinction remains. It is recognised in the Supreme Court Act: sub-ss 101(5) and (6) confer different rights of appeal in cases of civil and criminal contempt, and s 101A confers power on the Attorney General to submit questions of law to the Court of Appeal in cases of criminal contempt only. In my view the distinction is also required by the definitions of " civil proceeding " and " criminal proceeding " in the Civil Procedure Act and the Evidence Act . 77Disobedience to the court's order, or failure to comply with an undertaking to the court, is a civil contempt, unless the disobedience is contumacious (that is, demonstrates a deliberate defiance of the court's authority) or if the purpose of the proceeding seeking to punish the contemnor for the breach is punitive and not remedial or coercive ( Jendell Australia Pty Ltd v Kesby at 132-133; Witham v Holloway at 530; Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 136; Street v Hearne [2007] NSWCA 113; (2007) 70 NSWLR 231 at 243-244, [59]; Hearne v Street at [132]-[141], [168]-[172]; Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92 at [58]). 78It can be difficult to determine whether a breach is contumacious before the hearing of the proceeding commences and thus be able to characterise the proceedings as proceedings for criminal or civil contempt on that basis. In Mosman Municipal Council v Kelly (No 3) , Biscoe J held, with reference to authority, that contumacy does not have to be alleged as a separate element of the charge because the contemnor's state of mind is irrelevant to whether there was a contempt (at [65]-[71]). 79In the present case the sanction sought by ASIC in its interlocutory process for the alleged contempts is imprisonment. From this it can be implied that ASIC contends that the breaches were contumacious and involved a deliberate defiance of the court's authority. Prima facie a custodial sentence would not be appropriate if the contempt was not contumacious ( Registrar of the Court of Appeal v Maniam (No 2) at 314-315), unless the sentence was coercive to achieve compliance with the court's order. However, Mr Stack submitted that the fact that the interlocutory process sought only imprisonment as punishment did not affect the width of the court's powers to punish a proved contempt, and the fact that that was the only sanction sought should not mean that the contempts alleged should be characterised as criminal. 80In my view the more important consideration is the nature of the proceedings. Subject to a handful of arguable exceptions, all of the charges are for breaches which are not capable of remedy. They are not coercive of the plaintiff's future conduct. The two payments of $300,000 and $52,500 alleged to have been made in breach of the court's orders have been completed and the moneys disbursed. Mr Sigalla remains subject to the restraints from dealing with all of his assets without limitation as to amount, except for payment of permitted expenses from a particular account. This is not a case of a restraint precluding the defendant from reducing his or her assets below a particular sum where a breach might not literally be capable of being remedied if the defendant disposes of assets, but where the purpose of the order can be fulfilled if the defendant is able to restore assets within the jurisdiction to the required level. 81Similarly, none of the alleged breaches for use of Mr Sigalla's credit card for the alleged provision of services would be capable of being remedied. 82Mr Stack submitted that the High Court in Witham v Holloway had rejected the distinction between proceedings brought in the public interest for the punishment of contempt and proceedings whose purpose is remedial or coercive (at 532-534). However, where the distinction between criminal and civil contempts has to be drawn, the distinction remains relevant. It was applied by the High Court in Hearne v Street . 83Applying that distinction I consider that in respect of the majority of the charges, the proceedings should be characterised as proceedings for criminal contempt. It is enough for a proceeding to be a " criminal proceeding " within the meaning of s 4 of the Civil Procedure Act that any of the charges are for an offence, even if other charges are properly characterised as being for civil contempt. 84Some of the charges allege breach of an order requiring the service of an affidavit of assets and liabilities by the omission of certain shares said to be owned by the fourth defendant and by the omission of a credit card. Other charges allege breach of orders requiring the production of statements of accounts used by Mr Sigalla. One of the orders required the production of such statements on the 15 th of every month. Standing alone, these allegations would properly be characterised as allegations of civil contempt. However, that does not mean that the proceeding as a whole, that is, the proceeding by way of the interlocutory process, should be so characterised. 85It follows that in my view these proceedings are not " civil proceedings " and r 29.10 does not apply. Mr Sigalla was entitled to make a no case to answer submission without the need to obtain leave from the court to adduce evidence in respect of charges for which that submission was not to be made, or in respect of which the submission might fail. 86In any event, before reaching this conclusion I indicated that I would grant leave to Mr Sigalla to adduce such evidence if leave were needed. In Doyle v Commonwealth [1985] HCA 46; (1985) 156 CLR 510 at 516, Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ said: " Although disobedience of an injunction is not a criminal offence ( Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 497-8 and a proceeding for the committal of a person who has wilfully disobeyed an order of the court is not a criminal proceeding (see La Trobe University v Robinson and Pola [1973] VR 682 at 688) except possibly where the proceedings are grounded upon a contumacious or defiant contempt of the court ( Australian Consolidated Press Ltd v Morgan , at pp 489, 501-2) a proceeding for committal may result in a very serious interference with the liberty of the subject - indefinite confinement. Safeguards similar to those appropriate in criminal proceedings therefore apply. " 87As the proceedings are essentially criminal in nature, even if, contrary to my view, they are civil proceedings for the purposes of the Civil Procedure Act and Uniform Civil Procedure Rules, the safeguards of criminal procedure should apply. In a criminal proceeding, if the prosecution does not in its case adduce evidence which, taken at its highest, is capable of establishing guilt beyond reasonable doubt, the accused is entitled to be acquitted in respect of those charges for which proof is lacking. He does not and should not face the jeopardy that if he gives evidence in defence of one charge, he may be convicted by admissions obtained in the course of cross-examination on other charges for which the prosecution did not have sufficient evidence to establish guilt beyond reasonable doubt. Such a situation could have arisen in the present case. As the result of my rulings on evidence ( ASIC v Sigalla (No 2) [2010] NSWSC 792), Mr Stack had conceded that there was insufficient evidence in ASIC's case to convict Mr Sigalla on six charges of making payments to the TAB. Were they the only charges that would be the end of the matter. But there were other charges in respect of which Mr Sigalla might have given evidence. In my view justice required that he be able to make a no case to answer submission without being at risk that by so doing he might forfeit his opportunity to call evidence to defend the other charges. 88For this reason I indicated that if leave were required to be given under r 29.10 I would give that leave. The Evidence Act 89Within days of the High Court's decision in Witham v Holloway , the Full Court of the Family Court of Australia decided a question of law as to what standard of proof is to be applied in proceedings taken pursuant to s 112AD of the Family Law Act 1975 (Cth). That section provides for the imposition of sanctions where a person, without reasonable excuse, contravenes an order made under the Family Law Act . It stands in contrast with s 112AP of the Family Law Act which applies to a contempt of court that either does not constitute a contravention of an order under the Act, or which constitutes a contravention of an order involving a flagrant challenge to the authority of the court. Broadly speaking s 112AD is a statutory provision dealing with conduct equivalent to a civil contempt and s 112AP is a statutory provision dealing with conduct equivalent to a criminal contempt. 90In In the Marriage of J A and D M Lindsey [1995] FamCA 117; (1995) 19 Fam LR 649, the Full Court of the Family Court held (at 660): " The relevant provisions of the Evidence Act and the Evidence Act 1995 (NSW) were not considered by the High Court [in Witham v Holloway ] , as the hearing of the proceedings clearly began before the commencement of both Acts. The court therefore did not consider the distinction between an 'offence against or arising under Australian Law' and proceedings concerning the breach of a civil order, including proceedings under s 112AD of the Act. The effect of s 140(1) of the Evidence Act is to make the standard of proof for all civil proceedings covered by the Act the civil standard on the balance of probabilities. Therefore the crux of the issue before this court is not the distinction, if any, between the burden of proof applicable to civil and criminal contempt proceedings at common law, but rather, are proceedings under s 112AD of the Act civil proceedings as defined in the Evidence Act ? In our opinion they are and therefore, for the reasons which we have already given (subject to the provisions of s 4(1) and (5)), the breach of an order of the court to which s 112AD applies does not constitute 'an offence against or arising under Australian Law', and therefore the standard of proof to be applied is the civil standard. " 91By contrast, in In the marriage of Tate [2002] FamCA 356; (2002) 169 FLR 190; (2002) 29 Fam LR 195, the majority of the Full Court of the Family Court (Ellis and Holden JJ) held that in proceedings under s 112AP of the Family Law Act the required standard of proof was proof beyond reasonable doubt. Their Honours said (at [75] and [76]): " [75] Having regard to the language of s 112AP of the Act, including the possibility of committal to prison and/or the imposition of a fine if a natural person is found to be in contempt and to the Rules of Court made pursuant to s 112AP(3), in our view, properly characterised, the application before Murray J seeking that the husband be dealt with for contempt of court was a proceeding for an offence. While the acts constituting the alleged contempts in the instant case are not offences against any law of the Commonwealth, as to the meaning of which see Jerger v Pearce (1920) 27 CLR 526 at 531; 26 ALR 117 at 119 and Western Australia v Commonwealth; Wororra Peoples and Biljabu v Western Australia (1995) 183 CLR 373 at 487; 128 ALR 1 at 64, in our view, those acts, if established, constitute offences arising under an Australian law. Accordingly, the proceedings are criminal proceedings as defined in the Evidence Act and thus the standard of proof to be applied is as set out in s 141(1) of that Act, namely proof beyond reasonable doubt. [76] It follows, in our view, that the standard of proof to be applied in proceedings in the Family Court seeking that a respondent be dealt with for contempt of court is proof beyond reasonable doubt. " 92Notwithstanding the decision in Lindsey , the uniform practice in this court and the Federal Court since the introduction of the Evidence Acts in cases of contempt has been to require proof beyond reasonable doubt. The courts have implicitly assumed that all such proceedings are proceedings for prosecution of an offence against or arising under an Australian law and not " civil proceedings " within the meaning of the Evidence Act . In the present case, Mr Stack for ASIC accepted that the required standard of proof is proof beyond reasonable doubt. But that is only so if the present application is a " criminal proceeding " within the meaning of the Evidence Act . 93The effect of clause 9 of Part 2 of the Dictionary is that proceedings for an offence against the common law of Australia are proceedings for an offence against or arising under an Australian law. Accordingly proceedings for criminal contempt are criminal proceedings for the purposes of the Evidence Act. 94The Evidence Act displaces the decision in Witham v Holloway that the criminal onus applies to all charges of contempt whether classified as civil or criminal. In my view the approach of McLelland J in Jendell Australia Pty Ltd v Kesby is restored by ss 140 and 141 of the Evidence Act. Those sections direct attention to whether the proceedings are civil or criminal. There is no logical basis for saying that the rules of evidence applicable to civil proceedings apply, but proof must be established beyond reasonable doubt. 95As the proceedings are criminal proceedings, I have below rejected ASIC's contentions as to the consequences of Mr Sigalla not having called certain evidence (see at [149]-[153]). First charge: payment of $300,000 to Moon Corporation 96I will set out again the first charge. It is that: " 13. Mr Sigalla, is guilty of contempt of this Court [in that] in breach of : (a) Order 7 of the Orders made by the Honourable Justice Bergin, Chief Judge in Equity, on 26 August 2009; (b) Order 1 of the Orders made by the Honourable Justice Barrett on 31 August 2009; and (c) Order 2 of the Orders made by the Honourable Justice Barrett on 3 September 2009, between about 26 August 2009 and 4 September 2009, Mr Sigalla, having made a request, for the sum of $300,000 to be transferred from his bank account with KAS Bank, account number xxxxxxxxx, to a bank account held by Moon Corporation Pty Ltd, with the National Australia Bank, account number yyyyyyyyy, subsequently took no steps to prevent the said transfer occurring on or about 4 September 2009. " 97This charge was amended on 26 February 2010. As originally framed it was in the following terms: " 4. Mr Sigalla, is guilty of contempt of this Court in that between 26 August 2009 and 4 September 2009 in breach of: (a) Order 1 of the Orders made by the Honourable Justice Bergin, Chief Judge in Equity, on 26 August 2009; (b) Order 2 of the Orders made by the Honourable Justice Barrett on 31 August 2009; and (c) Order 3 of the Orders made by the Honourable Justice Barrett on 3 September 2009, between about 26 August 2009 and 4 September 2009, Mr Sigalla caused the sum of $300,000 to be transferred from his bank account with KAS Bank, account number xxxxxxxxx, to a bank account held by Moon Corporation Pty Ltd, with the National Australia Bank, account number yyyyyyyyy. " 98The order made by Bergin CJ in Eq on 26 August 2009 was in the following terms: " Up to 5pm on 31 st August 2009, each of the Defendants is restrained (by themselves, their directors, officers, partners, agents, employees or others acting on their behalf or instructions) from: (a) removing, or causing or permitting to be removed from the State of New South Wales and from Australia all or any of their assets; and (b) from selling, charging, mortgaging or otherwise dealing with disposing of or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, all or any of their assets whether located within Australia or outside Australia, PROVIDED that this Order: (c) shall not prevent each of the Defendants from paying their reasonable ordinary living and operating expenses; (d) shall not prevent each of the Defendants from paying legal costs reasonably incurred in these proceedings; and (e) shall not prevent any bank, building society or financial institution from exercising any right of set-off which it may have in respect of a facility afforded by it to any of the Defendants prior to the date of this Order. " 99On 31 August 2009 and 3 September 2009 the order was extended with no material change. 100Mr Sigalla had an account with a Dutch bank known as the KAS Bank. As at 1 September 2009 it had a credit balance of 1,024,798.76. On 26 August 2009 Mr Sigalla was in New York. He had a broker, Mr Mike Willems, in Amsterdam. On 26 August 2009 at what is apparently 3.58pm New York time, Mr Sigalla sent an email to Mr Willems advising that he would send instructions for the transfer of funds of $300,000 to Moon Corporation Pty Ltd ("Moon Corporation") and $170,000 to his personal account. On 26 August 2009 Mr Sigalla sent a further email to Mr Willems. The email has a time of 5.00pm. It says " Thanks Mike. Here are the instructions. " The email did not set out any instructions in the text and did not refer to an attachment. 101Mr Sigalla admitted having received notice of the orders of 26 August 2009 at around 7.00pm on that day, New York time. In a passage from an affidavit of Mr Sigalla's tendered by ASIC, Mr Sigalla asserted that he had given instructions to KAS Bank to transfer the sums of $300,000 and $170,000 at about 8.00am New York time on 26 August 2009. He said that he did not have the email which attached those instructions. 102ASIC tendered a further email from Mr Sigalla to Mr Willems dated 27 August 2009 at 2.00am addressed to Mr Willems that again said, relevantly, " Thanks Mike. Here are the instructions ." That email included a reference to an attachment. 103The relevant instructions sent either at 8.00am New York time on 26 August 2009, or at 5.00pm on 26 August 2009, or at 2.00am on 27 August 2009, were addressed to Mr Willems. They said: " Dear Mike, please transfer from my accounts held with KAS Bank the sum of A$470,000 to the following two accounts: 1. Account Name: Andrew Sigalla Bank: St George Bank Limited ... Amount: $170,000 ... 2. Account name: Moon Corporation Bank: National Australia Bank ... Amount: A$300,000 Yours sincerely Andrew Sigalla " 104Mr Stack submitted that Mr Sigalla gave the instructions to Mr Willems for the transfer of $300,000 to Moon Corporation seven hours after he had received notice of the orders of 26 August 2009. However, Mr Robb QC, who appeared with Mr Botsman for Mr Sigalla, submitted that that was not the charge Mr Sigalla had to face. As originally framed the charge against Mr Sigalla was that between 26 August 2009 and 4 September 2009 he caused the sum of $300,000 to be transferred from his bank account with KAS Bank to an account held by Moon Corporation with the National Australia Bank. That charge was amended so as to allege that " between about 26 August 2009 and 4 September 2009, Mr Sigalla, having made a request, for the sum of $300,000 to be transferred from his bank account with KAS Bank, ... to a bank account held by Moon Corporation Pty Ltd, with the National Australia Bank, ... , subsequently took no steps to prevent the said transfer occurring on or about 4 September 2009. " Mr Robb QC submitted that the charge was not that Mr Sigalla requested the transfer of $300,000 after having notice of the orders, but that having made that request subsequently he breached the orders by taking no steps to prevent the transfer occurring. Had the charge been that Mr Sigalla gave instructions for the transfer after notice of the orders, evidence might have been called in relation to the significance or accuracy of the times shown on the emails as to whether, for example, they might be the times the emails were received by Mr Willems rather than the times they were sent by Mr Sigalla. The emails in question were tendered by ASIC from documents obtained by ASIC from Mr Willems. There was no such inquiry. Mr Sigalla did not give evidence. 105I agree with the submission of Mr Robb QC and Mr Botsman that the charge against Mr Sigalla is not that he gave instructions for the transfer after having notice of the orders, but that, having previously given such instructions, he failed to prevent the transfer occurring. 106The orders restrained Mr Sigalla not only from dealing with his assets, but from permitting a dealing with, or disposition of, any of his assets whether located within Australia or outside Australia. Mr Robb QC and Mr Botsman submitted that Mr Sigalla did not permit such a dealing or disposition of the sum of $300,000 in his KAS Bank account because his instruction operated as an immediate assignment of the sum of $300,000 owed by KAS Bank to Mr Sigalla to Moon Corporation. Therefore, so it was said, Mr Sigalla did not permit the dealing or disposition to take effect after he received notice of the orders. Rather, that disposition and dealing were completely effected by the letter of instruction. 107At the same time as the orders were served by email, ASIC also served a copy of the originating process and a supporting affidavit of Mr Marks. ASIC also served a copy of the originating process and supporting affidavit and the orders of 26 August 2009 on Mr Ward of HWL Ebsworth, Lawyers, who acted for Mr Sigalla. It appears that these documents were provided by Mr Ward to Mr Willems on 27 August 2009. On 27 August 2009 at 7.16pm Mr Ward wrote to Mr de la Rambelje of KAS Bank. He wrote: " I act for Andrew Sigalla. On 26 August Mr Sigalla received freezing orders in relation to his assets as made by the Supreme Court of New South Wales. A copy of the order is attached. As you will note in paragraphs 7 (c) and (d) Mr Sigalla ['] s rights to pay living expenses and legal costs are preserved. I am instructed that Mr Sigalla had sought the transfer of monies from an account he holds with KAS bank. The order is a freeze of Mr Sigalla ['] s assets but expressly allows for him to pay living expenses and legal costs. This is the purpose for which he needs the funds the subject of the transfer request as I am instructed. The purpose for which he intends to deploy these funds is therefore within the scope of the orders. I would be grateful if you could advise me of when at the earliest we may be able to speak today. " 108No submission was made for Mr Sigalla at the hearing that the payment of $300,000 was for living expenses or legal costs. To the contrary, Mr Sigalla's contention at the hearing was that the sum of $300,000 was money he held on trust for Moon Corporation and that in transferring the money he was transferring an asset that did not belong to him, but that belonged to Moon Corporation. 109On 28 August 2009 at 6.52pm (presumably Netherlands time) Mr de la Rambelje advised Mr Ward that KAS Bank had received the information about the freezing order and had also received instructions for payment. Mr de la Rambelje said that he did not yet know if KAS Bank would execute the instructed payments. Later on that day Mr de la Rambelje advised Mr Ward that KAS Bank would carry out the instructions to make payments probably on 31 August 2009. Evidently KAS Bank did not regard itself as bound to act on the instructions given by Mr Sigalla to Mr Willems, which it can be inferred were conveyed by Mr Willems to KAS Bank. As a matter of practicality, I infer that Mr Sigalla could have stopped the payment being made on his instruction by countermanding the instruction. 110On 30 August 2009 Mr Sigalla arrived in Australia. On 31 August 2009 the matter came before the court. Mr Sigalla was represented by senior counsel. The orders of 26 August 2009 were extended to 3 September 2009. 111On 1 September 2009 Mr Ward wrote again to Mr de la Rambelje seeking confirmation that the payments had been effected. 112On 3 September 2009 the matter came again before the court. Mr Sigalla was represented by senior counsel. The orders were continued to 16 September 2009. On 3 September 2009 Mr Sigalla sent an email to Mr de la Rambelje at KAS Bank stating " Could you please send confirmations of the transfers that you made to my account and to Moon ['] s as neither bank has seen the funds. " Later that day at what I infer is 10.09am Netherlands time, Mr de la Rambelje sent an email to Mr Sigalla stating that " I can confirm that KAS Bank has instructed your two payments today the 3th [sic] of September ." On 3 or 4 September 2009 (depending on time differences) KAS Bank transferred $300,000 to the account of Moon Corporation with the National Australia Bank. 113It is quite clear that Mr Sigalla permitted that transfer to occur. Leaving aside the other arguments addressed below, this was a breach of the orders. On no view was the debt that the KAS Bank owed to Mr Sigalla legally assigned to Moon Corporation. At best there was an equitable assignment of part of the debt. Even if Moon Corporation were entitled to call on KAS Bank to transfer $300,000 to it, Mr Sigalla nonetheless permitted a part of a debt which was legally his to be paid to Moon Corporation by taking no step to prevent the transfer. To the contrary, by himself and through his solicitor he pressed KAS Bank to effect the transfer in accordance with his earlier instructions. 114In any event, the instruction from Mr Sigalla to Mr Willems was not an equitable assignment of part of the debt. The instruction was not given to KAS Bank. It was an instruction to Mr Sigalla's own agent, Mr Willems, authorising Mr Willems to give an instruction to KAS Bank for the transfer of the funds. As an instruction to Mr Sigalla's own agent, it was inherently revocable. Even if the instruction had been addressed to KAS Bank, it would not have operated as an equitable assignment. The letter did not express an intention on the part of Mr Sigalla to part with his interest in $300,000 in favour of Moon Corporation immediately on KAS Bank's receipt of the letter, as distinct from its being a mandate authorising KAS Bank to transfer funds to Moon Corporation which would have a dispositive effect when the mandate was acted on ( Comptroller of Stamps (Vic) v Howard-Smith [1936] HCA 12; (1936) 54 CLR 614 at 623-624). 115On the evidence tendered by ASIC there was a clear contravention of the orders. 116However, there is more to it than emerged from ASIC's evidence. Mr Sigalla and Moon Corporation contended that the moneys paid by Mr Sigalla to Moon Corporation were moneys held by Mr Sigalla on trust for Moon Corporation because they represented the proceeds of the sale of shares in a company called Photon Group Limited ("Photon") that were beneficially owned by Moon Corporation. I understand that this contention, and documents to support the contention, had been provided by the solicitors for Moon Corporation to ASIC in November 2009. Although ASIC tendered material it obtained from third parties relevant to the charge, it did not tender those documents. It ought to have done so. Even if, as ASIC contended, these were to be considered as civil proceedings, as the High Court said in Witham v Holloway they are essentially criminal in nature. ASIC had the responsibility of a prosecutor in conducting a criminal trial. 117The sole director and shareholder of Moon Corporation is Mr Siimon Reynolds. He and Mr Sigalla have been friends since school days. Mr Reynolds or Moon Corporation was a founding member of Photon which was listed on the Australian Stock Exchange in 2004. Mr Reynolds said that the company provided advertising, marketing and sales services. At about June 2006 Moon Corporation held 4,484,000 Photon shares. Mr Reynolds had a margin loan facility with the National Australia Bank for which the Photon shares were security. In 2007 the shares traded at prices above six dollars. However by about June 2008 the shares were trading below three dollars. Mr Reynolds was under pressure from the National Australia Bank to improve the security on the margin loan account or face a margin call. In early 2008 Mr Sigalla offered to help. He said to Mr Reynolds words to the following effect: " I think I can help you with your NAB problem. My margin lender will lend you 40% against Photon shares. They have interest rates that are much more competitive than Australian margin loan facilities. I can take over your Photon shares and fund them through my margin loan account. You will need to make all the payments of principal and interest. They will be in my name but they will remain your shares. I'll need to have them in my name because it's my account. " 118Mr Reynolds accepted this offer. On 17 July 2008 Mr Reynolds sent an email to his account manager to the National Australia Bank advising that " KAS Bank have confirmed that they will take over my entire loan from NAB. I have asked Mike Willems to contact you directly so that you guys can effect the transfer in a mutually agreeable way. " On 22 July 2008 Mr Willems advised the NAB that " we can take over the account of Siimon but I am waiting [for] an answer of Kasbank how to settle. " 119It took some months for the mechanics of settlement to be implemented. The National Australia Bank wanted to sell the Photon shares to KAS Bank. Mr Sigalla said that the transaction should not be a sale but a transfer of security. Mr Reynolds owed the National Australia Bank $6,217,451.50. On 26 September 2008 that loan was discharged by a payment from KAS Bank. Mr Sigalla's account with KAS Bank was debited with the Euro equivalent. The 4,840,000 shares beneficially owned by Moon Corporation (but subject to a mortgage to the National Australia Bank) were transferred by the National Australia Bank (as a purported sale) to NAB Custodians to be held by it on behalf of KAS Bank. KAS Bank's title was as mortgagee. 120The result of that transaction was that NAB Custodians was the legal owner of the shares. It was either agent or trustee for KAS Bank. KAS Bank held the equitable interest in the shares as mortgagee. It recognised Mr Sigalla as being entitled to the equity of redemption in the shares. Mr Sigalla held that equity of redemption on trust for Moon Corporation. Moon Corporation and Mr Reynolds were required to indemnify Mr Sigalla in respect of his liability to KAS Bank to pay interest and repay the principal on the loan. 121Mr Reynolds deposed that from October 2008 Moon Corporation made numerous payments in reduction of the loan. He deposed: " 25. Since the transfer of the shares to the KAS Bank account held by Andrew Sigalla, Moon Corporation has paid approximately AUD $3,287,400.00 in payments of principal and interest to fund the Photon Shares loan. These payments were made to Andrew Sigalla (either in his name or to his related account entitled 'ZMS Investments') by Moon Corporation at his requests as follows: (i) on or about 7 October 2008 the sum of $822,000 was paid direct to the KAS Bank account from dividends received from the Photon Shares; (ii) on or about 20 October 2008 the sum of $30,000 was paid to account name ZMS Investments by RTGS transfer. ...; (iii) on or about 23 October 2008 the sum of $500,000 was paid to account name ZMS Investments by RTGS transfer. ...; (iv) on or about 7 November 2008 the sum of $500,000 was paid to account name ZMS Investments by RTGS transfer. ...; (v) on or about 25 November 2008 the sum of $195,000 was paid to account name ZMS Investments by RTGS transfer. ...; (vi) on or about 3 December 2008 the sum of $500,000 was paid to account name ZMS Investments by RTGS transfer. ...; (vii) on or about 7 April 2009 the sum of $290,400 was paid direct to the KAS Bank account from dividends received from the Photon Shares; (viii) on or about 9 April 2009 the sum of $20,000 (by two payments of $10,000) was paid to account name ZMS Investments by internet transfer. ...; and (ix) on or about 17 April 2009 the sum of $430,000 was paid to account name Mr A Sigalla by internet transfer. ... " 122On 8 April 2009 Mr Sigalla sent an email to Mr Reynolds purporting to set out the state of the account between them. He said that the initial borrowing was 3,554,444 which equalled A$6,171,226. After setting out various payments Mr Sigalla concluded the email by saying that as at that date the amount owed was 1,701,248 without interest. 123Mr Reynolds deposed that in about August 2009 he directed Mr Sigalla to arrange for KAS Bank to sell approximately $300,000 worth of the Photon shares. He said that apart from that direction and except for some shares having to be sold by KAS Bank in order to allow him to take up a rights issue announced by Photon, he was not aware of any other sales of Photon shares having been made by KAS Bank. However, he also gave evidence that Mr Sigalla told him that KAS Bank had had to sell some shares after the share price had dropped to keep the margin, i.e. to reduce the debt. 124Mr Reynolds gave evidence that he thought that when he made his request for payment of $300,000 in August 2009 he owed Mr Sigalla approximately $2.88 million plus interest. It was his understanding that the price of the Photon shares, discounted to 40 per cent, had to exceed the outstanding debt, unless Mr Sigalla added additional security to the loan facility with KAS Bank. 125If Mr Sigalla still owed KAS Bank part of the loan debt, then although Mr Sigalla held the equity of redemption in the shares on trust for Moon Corporation, he would have had a preferred beneficial interest in the shares (that is, preferred to Moon Corporation) in respect of his right to be indemnified against the outstanding debt ( Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4; (1998) 192 CLR 226; CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53; (2005) 224 CLR 98 at [51]). 126However, the position as deposed to by Mr Reynolds that the debt was still outstanding is apparently contradicted by other evidence included in the email chains tendered by ASIC. The email chain included an email from Mr Willems to Mr Sigalla dated 26 August 2009 which stated as follows: " Hi Andrew, We sold 156,790 Photon Group at $1.7787 (which completes balance of 600,000 order). and sold: 325,000 Photon Group at $1.7698 (which completes balance of 1,349,500 order). Your total balance in cash now is 275.653 credit. We can now pay out the A$300,000 to Siimon. " 127Mr Reynolds made no reference in his affidavit to sales of 600,000 and 1,349,500 shares in the Photon Group. Mr Robb QC and Mr Botsman submitted that it shou ld be inferred from this email that prior to the transfer of $300,000 to Moon Corporation, the debt from the loan that Mr Sigalla took over had been discharged so that the account was in credit, and had been discharged from the sale of the Photon shares, which were ultimately beneficially owned by Moon Corporation. Accordingly, they submitted that the $300,000 transferred by Mr Sigalla to Moon Corporation were moneys beneficially owned by Moon Corporation. They submitted that properly construed, the orders only restrained Mr Sigalla from dealing with assets beneficially owned by him. 128The issues are: a) whether the orders restrained Mr Sigalla from permitting a disposition of the moneys in his account with KAS Bank to Moon Corporation even if the moneys were beneficially owned by Moon Corporation; b) if so, whether the orders were nevertheless ambiguous and it is a reasonably available construction that the orders only restrained Mr Sigalla from permitting a disposition of assets beneficially owned by him, and did not prohibit him from permitting the disposition of moneys held in his name but beneficially owned by Moon Corporation; and c) if on the proper construction of the orders, or on a reasonably available construction, the orders only restrained Mr Sigalla from dealing with, or disposing of, or permitting a dealing with or disposition of, assets beneficially owned by him, whether ASIC has established beyond reasonable doubt that the sum of $300,000 paid from Mr Sigalla's account with KAS Bank to Moon Corporation was beneficially owned by him. 129Were the matter free from authority I would have thought it was clear that the orders restrained Mr Sigalla from dealing with his assets, or from permitting a dealing with his assets, whether the asset dealt with was beneficially owned by him or held by him as trustee. The orders restrained the defendants from dealing with " their assets ". An asset belongs to a person and is " his asset " or " her asset " whether or not the person holds the asset on trust for another, so that equity recognises the other party as being beneficially entitled to the asset. Where assets are held on trust the interest of the beneficial owner is imposed on the interest of the legal owner. The asset belongs to both the legal owner and the beneficial owner. The beneficial owner's interest is not carved out of the legal owner's interest. In DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510 Hope JA gave an exposition of the nature of a trustee's and beneficiary's interest in trust property which has been frequently cited with approval. His Honour said (at 519): " ... (16) ... an absolute owner in fee simple does not hold two estates, a legal estate and an equitable estate. He holds only the legal estate, with all the rights and incidents that attach to that estate. If he were to execute a declaration that he held the land in trust for himself absolutely, the declaration would be of no effect; it would give him no separate equitable rights; he would remain the legal owner with all the rights that a legal owner has. ... Secondly, although the equitable estate is an interest in property, its essential character still bears the stamp which its origin placed upon it. Where the trustee is the owner of the legal fee simple, the right of the beneficiary, although annexed to the land, is a right to compel the legal owner to hold and use the rights which the law gives him in accordance with the obligations which equity has imposed upon him. The trustee, in such a case, has at law all the rights of the absolute owner in fee simple, but he is not free to use those rights for his own benefit in the way he could if no trust existed. Equitable obligations require him to use them in some particular way for the benefit of other persons ... " 130In Re Transphere Pty Ltd (1986) 5 NSWLR 309 McLelland J (as his Honour then was) said (at 311): " It is important to recognise the true nature and incidents of legal and equitable estates in property subject to a trust. They are clearly and succinctly described in the judgment of Hope JA in DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510 at 518-520. (His Honour's analysis is not affected by the decision of the High Court in that case - see 149 CLR 431.) I would not wish to detract from the value of Hope JA's exposition by trying to summarise it. But what is significant for present purposes is the imprecision of the notion that absolute ownership of property can properly be divided up into a legal estate and an equitable estate. An absolute owner holds only the legal estate, with all the rights and incidents that attach to that estate. Where a legal owner holds property on trust for another, he has at law all the rights of an absolute owner but the beneficiary has the right to compel him to hold and use those rights which the law gives him in accordance with the obligations which equity has imposed on him by virtue of the existence of the trust. Although this right of the beneficiary constitutes an equitable estate in the property, it is engrafted onto, not carved out of, the legal estate. Hope JA (at 519) illustrates the point by the following quotation from Maitland - Lectures on Equity 2nd ed (1949) at 17: '... Equity did not say that the cestui que trust was the owner of the land, it said that the trustee was the owner of the land, but added that he was bound to hold the land for the benefit of the cestui que trust . There was no conflict here.'" 131This passage has frequently been cited and was approved by the High Court in Commissioner of Taxation v Linter Textiles Ltd (in liq) [2005] HCA 20; (2005) 220 CLR 592 at 606, [30]. 132Accordingly, if Mr Sigalla held the debt owed to him by KAS Bank, represented by the credit balance in his account with KAS Bank, on trust for Moon Corporation, that debt nonetheless was his asset, even if Moon Corporation was the beneficial owner of the debt. Its equitable interest in the debt would be engrafted onto Mr Sigalla's legal estate. 133There is nothing in the surrounding circumstances and legal context in which the orders were made which detracts from the ordinary legal meaning of the expression " their assets " in the orders. In its originating process ASIC sought orders under s 1323 of the Corporations Act . Where the conditions prescribed by that section are satisfied, the court is empowered to appoint a receiver to " property " of a relevant person. It is implied from the provision giving power to appoint a receiver that the court has power to make a restraining order in lieu of appointing a receiver. The " property " of a relevant person in respect of which orders can be made expressly includes property held by that person as trustee or nominee for another (s 1323(2A)). 134In its originating process ASIC had sought an order in the following terms: " 12. A notation by the Court that in relation to the orders sought herein, 'property' has the same meaning as in section 1323 of the Corporations Act and includes: (a) any legal or equitable interest (whether present or future and whether vested or contingent) which any of the Defendants have in the relevant property; and (b) any asset which any of the Defendants has power, either directly or indirectly, to dispose of or deal with as if it were his or its own. " 135A notation to that effect was not included in the orders made. 136It cannot be inferred from the fact that the notation was not included in the orders made that the orders should be construed as not extending to the kinds of property referred to in para 12. Paragraph 12 would appear to exhaust concepts of property and to extend to powers which are not property. If everything that were encompassed by para 12 were impliedly excluded by the absence of the notation, there would be no work for the orders to do. The absence of the notation in the court's orders is entirely neutral. 137Counsel for Mr Sigalla relied upon the decision of the Court of Appeal of England and Wales in Federal Bank of the Middle East Ltd v Hadkinson [2000] 1 WLR 1695; [2000] 2 All ER 395. That decision certainly supports Mr Sigalla's submission. There a freezing order was obtained prohibiting the defendant and companies under his control from disposing of " their assets and all funds " and discovery was ordered of " all their assets and/or funds ". The defendant was alleged to be in contempt of the freezing order. The defendant transferred sums in offshore accounts in his name into the names of his wife and children and failed to include such accounts in his affidavit of assets. The matter was argued on the assumption that the defendant was not beneficially entitled to the assets and funds transferred. The Court of Appeal held that the expression " his assets and/or funds " when read in context and having regard to the object of the order referred to assets " belonging to the defendant " which would be available to satisfy a judgment and did not extend to assets in the defendant's name which he did not own beneficially. 138The Court of Appeal's reasoning was based on three propositions. First, that the expression " his assets " refers to assets belonging to the person and not to assets belonging to another person (at 1709 per Mummery LJ with whom Pill LJ and Nourse LJ agreed; and at 1714 per Nourse LJ). Secondly, property does not belong to a person who holds it as trustee. This is implicit but not express in the reasoning of Mummery LJ. Nourse LJ said that in legal parlance assets " belong " to a person if they are assets or funds to which he is beneficially entitled. His Lordship said (at 1714): " As a matter of ordinary language assets or funds, in reference to an individual, cannot be said to be 'his' unless they belong to him or, in legal parlance, are assets or funds to which he is beneficially entitled. When Iago, affecting to prize only his good name, says to Othello: 'Who steals my purse, steals trash; 'tis something, nothing; Twas mine, 'tis his, and has been slave to thousands', though a modern restitution lawyer might conjecture that the thief becomes a constructive trustee of the purse, Iago himself will have none of it. ' Tis his '. So far as he is concerned, the purse now belongs to the thief. Assets which are held by someone for the benefit of another do not belong to him and are not his. Arden J said that bare legal ownership is none the less a form of ownership. So indeed it is. But that does not make the assets ' his '. " 139Thirdly, that the purpose of a freezing order is to preserve assets of a defendant against which a judgment can be executed. Assets which belong beneficially to someone else will not be available for that purpose and hence should be outside the scope of a freezing order unless express provision is made to the contrary (at 1709 and 1714.F). 140I am unable to accept this reasoning. The reasoning assumes that if assets belong to A, they cannot also belong to B. The Court of Appeal did not explain why assets held by a trustee do not " belong " to the trustee, as well as the beneficiary. Nourse LJ merely asserted that assets only " belong " to the person who is beneficially entitled. The dictionary meaning of " belong " relevantly includes that the thing be the property of the person to whom it belongs. A trust asset is the property of the trustee. The Court of Appeal's reasoning is based on the erroneous conception that where property is held on trust for another, the beneficial interest is carved out of the property held by the trustee leaving the trustee with a " bare legal title " which then, for reasons not explained, is said to be insufficient to characterise the asset as " belonging " to the trustee. 141If the reasoning of the Court of Appeal is to be supported, it must be on the third ground that the object of the freezing order was to preserve assets against which judgment could be executed. A similar position was taken by Owen J in R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59 at 78 where his Honour said: " Both the concise Oxford Dictionary and the Macquarie Dictionary define ' asset ' as ' property to meet debts '. There is implicit in this definition, when applied to the context of a Mareva injunction, that an ' asset ' must be a thing of value and it must be capable of application to satisfy debts. " 142However, that is not always, or even often, the only purpose of a freezing order. It is common for a freezing order to be made on the application of a plaintiff who alleges that the defendant has stolen or fraudulently misappropriated his property. A thief holds stolen property on a constructive trust for the true owner ( Black & Black v S Freedman & Co [1910] HCA 58; (1910) 12 CLR 105). It is often the case that a plaintiff wishes to preserve property of which the defendant has obtained possession, or of which he has obtained a legal title, in order to recover the property as beneficially belonging to the plaintiff. On the reasoning of the Court of Appeal in Federal Bank of the Middle East v Hadkinson a defendant who has stolen the plaintiff's property would not be in contempt of an order which restrains the defendant from disposing of " his assets " if he disposed of the assets he held on trust for the plaintiff and thereby put it out of the plaintiff's reach. Indeed that consequence was expressly acknowledged by Nourse LJ in the passage quoted at [138] above. 143The construction favoured by the Court of Appeal would lead to great uncertainty as the facts of this case illustrate. A trustee has a preferred beneficial interest in trust assets to the extent that he has a right to be indemnified in respect of liabilities properly incurred in execution of the trust. Hence the inquiry would be not only whether the assets dealt with by the defendant were trust assets, but whether the defendant has an unsatisfied right of indemnity. If he has an unsatisfied right of indemnity, on any view he would have a beneficial interest in the assets and they would be " his assets " and subject to the order. Enforcement of freezing orders should not be the occasion for the taking of trust accounts. 144Mummery LJ said (at 1710): " I fully appreciate the force of the point that the meaning of 'his assets' may be coloured by the fact that a freezing order is a precautionary measure taken urgently to protect the claimant against a risk of dissipation and disposal of assets pending a fuller investigation by the claimant and the court to determine who is the beneficial owner of the assets. That is not, however, a sufficient reason for giving the expression a meaning which it cannot reasonably bear. The order should, when appropriate, be made in a different form. " 145His Lordship did not give effect to the policy consideration there enunciated because he took the view that the expression " his assets " could not reasonably bear the meaning of extending to trust assets in which the defendant did not have a beneficial interest. However, for the reasons above, the expression " his assets " are entirely apt to refer to assets held by the defendant as trustee. The policy consideration referred to should be given full weight. 146For these reasons I am unable to agree with the reasoning in Federal Bank of the Middle East Ltd v Hadkinson . In my view, on the proper construction of the orders, Mr Sigalla was in breach of the orders by permitting the transfer of the sum of $300,000 to Moon Corporation whether or not the moneys beneficially belonged to Moon Corporation. 147However, that is not the end of the inquiry. In the light of the decision in Federal Bank of the Middle East Ltd v Hadkinson , I must conclude that the orders are ambiguous and that the interpretation that the orders only restrain a dealing, or the permitting of a dealing, with assets beneficially belonging to Mr Sigalla is an interpretation that is reasonably open. Moreover, the ambiguity in this case is in what is denoted by the expression " their assets ". The ambiguity is not based on uncertainty in the syntactical construction of the order (compare Australian Consolidated Press Ltd v Morgan per Windeyer J (at 503) and see Wyszynski v Bill [2005] NSWSC 110 at [33]-[34]). It follows that Mr Sigalla cannot be found liable for contempt for his breach of the orders unless he would also have breached the orders on the construction of the orders for which he contends ( Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 at [55]). To absolve an alleged contempt on the ground that the orders are ambiguous, the ambiguity must be such that on one reasonable view of the orders the defendant was not in breach ( Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 at 390; Australian Consolidated Press Ltd v Morgan at 516; Wyszynski v Bill at [36]). Counsel for Mr Sigalla did not dispute this. 148I therefore turn to the third issue, namely whether ASIC has established beyond reasonable doubt that Mr Sigalla had a beneficial interest in the moneys. The question is not whether Mr Sigalla has established that he did not have a beneficial interest in the moneys. The question is whether ASIC has discharged its onus of establishing beyond reasonable doubt that he did have such an interest. 149ASIC relied in part upon the fact that neither Mr Sigalla nor Mr Ward gave evidence. Mr Stack submitted that the court is therefore entitled to draw an inference in accordance with Jones v Dunkel that the uncalled evidence would not have assisted Mr Sigalla's case. Mr Stack submitted that while such an inference could not fill gaps in the evidence or convert conjecture and suspicion into inference, it more readily allowed the court to accept the inferences contended for by ASIC arising from the evidence it adduced ( Adler v ASIC [2003] NSWCA 131; (2003) 46 ASCR 504 at [649]). 150However, these are criminal proceedings. In RPS v R [2000] HCA 3; (2000) 199 CLR 620 at 632-633, Gaudron ACJ, Gummow, Kirby and Hayne JJ said (at [26]-[28]): " [26] In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case and that: 'where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.' [27] By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen: ' [I] n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. ' (Emphasis added) [28] In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations. " 151In Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50, Gaudron, Gummow, Kirby and Hayne JJ said (at [34], 64): " [34] The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt. Further, because the process is accusatorial and it is the prosecution that always bears the burden of proving the accusation made, as a general rule an accused cannot be expected to give evidence at trial. In this respect, a criminal trial differs radically from a civil proceeding. " 152It would only be if there were facts which were solely in the knowledge of the defendant, and thus could not be the subject of evidence from any other person or source, which, if true, contradicted ASIC's case that it would be legitimate to reason that an inference otherwise available from proven facts should be more safely drawn from the defendant's failure to give evidence ( Azzopardi v R at [61]-[73]). 153I can draw no inference adverse to Mr Sigalla's case from the fact that Mr Ward was not called to give evidence. At one point counsel for Mr Sigalla foreshadowed reading an affidavit from Mr Ward. I was told that an affidavit was served. It was not read. However, it was open to ASIC to call Mr Ward. If his evidence was material to the guilt or innocence of Mr Sigalla and could have been adduced either because it was not privileged, or because privilege was waived by the service of the affidavit, or could be expected to be waived, then, ASIC might be expected to have done so. However, neither the court nor the defendant could control the decision of counsel for ASIC as to which witnesses should be called. 154ASIC relied upon additional facts to which I have not yet referred. On 11 June 2009 Moon Corporation and Mr Reynolds entered into a facility agreement with Sabre Synergy (Australia) Pty Ltd ("Sabre Synergy"). Sabre Synergy agreed to lend Moon Corporation $1,300,000 for the purpose of financing an acquisition by Moon Corporation of shares and options in TZ Limited. This included prepayment of interest of $180,000. The loan was due to be repaid after six months. The loan was at very high rates of interest of six per cent per month reducing to three per cent per month if there was no event of default. On 11 June 2009 Mr Sigalla entered into a share mortgage deed with Sabre Synergy. By clause 5.1 of that agreement he undertook to satisfy, or procure the satisfaction of the " secured obligations ", which included the obligations of Moon Corporation to Sabre Synergy under the facility agreement. The share mortgage deed recited that Mr Sigalla was the beneficial owner of the " Mortgaged Property ", which was held on trust for Mr Sigalla by National Nominees Limited, the legal owner of the Mortgaged Property. 155" Mortgaged Property " was defined as follows: " Mortgaged Property - all of the Mortgagor's [Mr Sigalla's] present and future right, title and interest in and to: a) all of the Shares; and b) the Additional Rights. " 156The " Shares " were the 4,840,000 shares in Photon Group Ltd and 1,800,000 shares in TZ Limited. 157" Additional Rights " included any dividends or bonus Shares or the proceeds from disposal of any Shares. Sabre Synergy's loan to Moon Corporation had not been repaid on 3 and 4 September 2009 when $300,000 was transferred to Moon Corporation from the proceeds of sale of Photon shares. 158Clause 2.1 of the Share Mortgage Deed provided: " The Mortgagor [Mr Sigalla] as beneficial owner mortgages and assigns all of his interest in the Mortgaged Property to the Mortgagee [Sabre Synergy] as security for the due and punctual performance of the Secured obligations. " 159Mr Stack submitted that the Share Mortgage deed contained an admission by Mr Sigalla that he was the beneficial owner of the 4,840,000 Photon shares. 160At the time the Share Mortgage deed was entered into, Mr Sigalla undoubtedly had a beneficial interest in the Photon shares because he was entitled to be indemnified in respect of his liability to KAS Bank in respect of the loan he had taken over. The " Mortgaged Property " was not defined as the Shares, but Mr Sigalla's interest in the Shares. He mortgaged his interest in the Shares. The Share Mortgage deed is not inconsistent with Mr Sigalla's case that he held the equity of redemption in the Photon shares on trust for Moon Corporation and that by 4 September 2009 the loan had been discharged so that Moon Corporation was the full beneficial owner of the Photon shares and of the proceeds of sale. 161In any event, even had Mr Sigalla represented to Sabre Synergy that he was the beneficial owner of the shares, such a representation would not displace the position which is otherwise clearly established that Mr Sigalla held the equity of redemption in the shares for Moon Corporation. 162Mr Ward sought to persuade KAS Bank that the transfer of $300,000 was not prohibited by the orders because of the exception to the orders allowing payment of reasonable ordinary living and operating expenses. There was no basis for that contention. Subject to one qualification, the payment to Moon Corporation was not made for the purpose of paying Mr Sigalla's ordinary living and operating expenses. The qualification is that after receiving the payment of $300,000 to Moon Corporation Mr Reynolds caused three payments to be made totalling $50,000 to Mr Sigalla's American Express credit card. Those payments were made on 9, 10 and 11 September 2009. However, Mr Sigalla does not seek to justify the payment of $300,000 to Moon Corporation on the basis of the exception to the orders allowing payment for reasonable living and operating expenses. The fact that Mr Ward sought to rely on that exception to justify the payment and did not assert to KAS Bank that the moneys should be transferred because Moon Corporation was beneficially entitled to the money raises a doubt as to whether Moon Corporation was entitled to the money. 163The fact that $170,000 was transferred at the same time to Mr Sigalla's own account also raises a question as to whether Moon Corporation was beneficially entitled to the moneys, but is not necessarily inconsistent with Moon Corporation being beneficially entitled to at least t he $300,000 transferred to it. 164There was no evidence about the prior state of Mr Sigalla's account with KAS Bank. Although there was evidence that Mr Sigalla's account with KAS Bank was in credit in the sum of 1,024,798.76 as at 1 September 2009, it was unclear how that credit balance was arrived at. It may have been the result of the sale of Photon shares to which Mr Willems referred in his email of 26 August 2009, or it may have been the result of other transactions conducted by Mr Sigalla. Accordi ng to Mr Willems, Mr Sigalla's account was in credit as at 26 August 2009 in an amount of 275,653 as a result of the sale of the Photon shares. Such a credit balance resulting from the sale of the Photon shares would be trust moneys payable to Moon Corporation. It can be inferred that Mr Sigalla mixed those moneys with his own moneys in the KAS Bank account giving a credit as at 1 September 2009 of 1,024,798.76. It can also be inferred that in remitting A$300,000 to Moon Corporation, Mr Sigalla was remitting the moneys to which Moon Corporation was beneficially entitled. 165However the question is not whether Moon Corporation was beneficially entitled to the moneys it received, but whether ASIC has proved beyond reasonable doubt that it was not so entit led. That onus has not been discharged. Accordingly, the first charge should be dismissed. Charge in para 31 of the Further Amended Interlocutory Process: transfer of $52,500 to Mr Sigalla's New York bank account 166ASIC brings the following charge: " Mr Sigalla is guilty of contempt of this Court in that, in breach of Order 2 of the Orders made by the Honourable Justice Barrett on 3 September 2009, Mr Sigalla on 9 September 2009, caused the sum of $52,500 to be paid from his bank account with St George Bank, Australia, account number [xxxxxxxxx] , to his bank account with JPMorgan Chase Bank, in the United States of America, account number [yyyyyyyyy] , for the sole purpose of paying $52,500 ('the Fees') to the Convent of the Sacred Heart, New York, for his children's school education in circumstances where the Fees had been paid before 9 September 2009. " 167As I observed in my judgment concerning the admissibility of evidence ( ASIC v Sigalla (No. 2) at [8]), the allegation is not intended to be that Mr Sigalla transferred $52,500 from his account with St. George to his account with JPMorgan Chase Bank in the United States for the purpose of paying his children's school fees, but rather that this was the stated, but not the true, purpose of the transfer. This was always clear. Properly, counsel for Mr Sigalla did not contend that the purpose of the payment as charged by ASIC was within the permitted exception of paying ordinary living and operating expenses. 168The question is whether the payment of $52,500 from Mr Sigalla's account with the St George Bank to his account with JPMorgan Chase Bank was a contravention of the orders of 3 September 2009. The question is not whether the payment was made for the stated purpose of paying school fees. Rather, it is whether the payment was for ordinary living and operating expenses. The onus lies on Mr Sigalla of establishing that the payment was within the permitted exception. That onus can be discharged on the balance of probabilities (see ASIC v Sigalla (No. 3) at [46]-[48]). 169There is no dispute that the payment was made. The circumstances were as follows. On 8 September 2009 Mr Ward on behalf of Mr Sigalla approached Barrett J to request that the matter be re-listed in order to vary the existing freezing order. The parties were referred to the Duty Judge. Mr Ward provided ASIC with a draft interlocutory process which, amongst other things, sought to particularise various payments totalling $193,930 which would be classified as reasonable ordinary living and operating expenses. This included a once-off item of $52,500, said to be the equivalent of US$42,000, for school fees. Mr Sigalla swore an affidavit on 8 September 2009, parts of which were tendered by ASIC. He exhibited a bundle of documents including a document that he said had been provided to officers of ASIC on 3 September 2009. He deposed that that document accurately set out his current living expenses. He also deposed that his children were due to recommence school on 8 September 2009 in New York and that it was necessary for him to pay school fees, set out at pages 46-47 of the exhibit, immediately, so as to allow them to attend school. The schedule of expenses included the item for school fees of $52,500. Pages 46-47 of the exhibit included facsimile copies of invoices for US$20,866.79 and US$20,966.79 for each of his daughters. A note on the invoices stated that those amounts were due by 10 June 2009. 170As a result of negotiations on 8 September 2009 ASIC consented to payments totalling $177,000 being made from Mr Sigalla's St George account. These included expenses totalling $52,500 for school fees. ASIC asked for receipts for the payments which were received on 28 September 2009 showing transfers of two sums from the St George Bank account to his bank account with JPMorgan Chase Bank of $22,500 and $30,000 on 9 September 2009. The telegraphic transfers both stated that the payments were for school fees. 171The statements of Mr Sigalla's JPMorgan Chase Bank account show that the moneys were not used for that purpose. One statement for Mr Sigalla's account with JPMorgan Chase Bank was for the period from 21 August to 21 September 2009. As at 21 August 2009 the account was in credit in the sum of US$33,373.71. Cheques were drawn up to 26 August 2009 totalling US$32,633.58. These would have reduced the credit balance to US$740.13. The payments included a payment of US$31,833.58 by Mr Sigalla for his children's school fees. That cheque was drawn by Mr Sigalla on 13 August 2009 and paid on 26 August 2009. On 2 September 2009 there was a transfer of US$700 to a credit card in the name of Mr Sigalla with JPMorgan Chase Bank for which Mrs Sigalla held a second card. This payment would have reduced the credit balance of the account to approximately US$40. 172Mr Sigalla's father-in-law, Mr Terence Caplice, had paid $52,500 to Mr Sigalla's company, ZMF Investments Pty Ltd, on 20 August 2009. Mr Caplice described this as a payment for school fees. 173The payment of US$31,833.58 on 26 August 2009 did not discharge Mr and Mrs Sigalla's liability for school fees. There still remained substantial moneys owing. The school fees were US$33,985 per annum for each child. Sixty per cent of this sum, or a total of US$40,782 was payable on 1 June 2009 and the balance was payable by 1 December 2009. Because Mr Sigalla's employment in the United States ceased, the children were withdrawn from the school in the United States at the end of 2009. There were consequential financial adjustments involving an insurance plan to which it is unnecessary to refer. It is not necessary to make any finding as to whether Mr Sigalla genuinely believed that the whole of the sum of A$52,500 was to be used either to pay further school fees that were then or would become owing, or to reimburse his father-in-law for moneys which his father-in-law had provided. The moneys transferred on 9 September 2009 were not used to reimburse Mr Caplice. They were spent on ordinary living expenses for Mr Sigalla's dependants. 174The payments credited to Mr Sigalla's account with JPMorgan Chase Bank on 9 September 2009 totalled US$44,537.91. Between 10 September and 21 September 2009 Mrs Sigalla made four ATM withdrawals from the account each totalling US$500. She deposed that while she did not specifically recall those withdrawals, she did recall making cash withdrawals from time to time. She said that she used the money for every day expenses such as medicines, subway fares, cabs, food, and for expenses of her daughters. I accept that evidence. 175On 10 September 2009 US$10,000 was transferred from the account to Mr Sigalla's credit card with JPMorgan Chase Bank. The account was then in debit. Mrs Sigalla deposed that the payments made from the credit card account were for ordinary living expenses which she itemised. I accept her evidence. It is unnecessary to go through the individual payments made through the credit card. The payments were for the living expenses of Mrs Sigalla and Mr and Mrs Sigalla's daughters. 176As at 21 September 2009 the bank account with JPMorgan Chase Bank was in credit in the sum of US$32,548.04. In the following month that credit balance was reduced to US$181.09. US$2,892.92 was withdrawn by Mrs Sigalla in New York through ATM withdrawals. I accept her evidence that those withdrawals were all for the purposes of payment of ordinary living expenses. Cheques totalling US$24,149.06 were also drawn. These included a cheque paid on 24 September 2009 for US$23,000. This was for payment in advance of rent on Mr and Mrs Sigalla's apartment in New York. The rent for that apartment was US$23,000 per month. Mrs Sigalla drew four other cheques totalling US$1,149.06 which were all applied for ordinary living expenses of herself and her daughters in New York. In addition there were two transfers of US$4,000 on 25 September 2009 and US$1,500 on 13 October 2009 to Mr Sigalla's JPMorgan credit card. The credit card was used for ordinary living expenses. By the end of October 2009 the only funds left in the JPMorgan Chase Bank account totalled US$181. There were no further withdrawals. 177Although the $52,500 transferred by Mr Sigalla from his St George account to his JPMorgan Chase Bank account was not used for the purpose of paying school fees, the moneys were used for the purpose of paying ordinary living expenses of his wife and daughters, and, to a small extent, expenses for which he and his wife were both responsible. Some of the payments sourced through the payment of A$52,500 were for expenses, which Mr Sigalla had proposed be paid directly from his St George Bank account. ASIC had given its consent to the payment of A$124,500 from the St George Bank account for living expenses which included an allowance for those amounts. 178Mr Stack submitted that Mr Sigalla could not justify the payment of A$52,500 on 9 September 2009 on the basis that the moneys were used to pay living expenses after 16 September 2009 because on 16 September 2009 the freezing orders were reformulated. From 16 September 2009 the freezing orders provided that Mr Sigalla could pay an amount up to $500,000 in the aggregate for reasonable ordinary living expenses, legal expenses and business expenses properly incurred, and to discharge obligations properly incurred under a contract before the freezing order was made, from moneys standing to the credit of the St George Bank account. There was no general exception to the freezing orders allowing payment of reasonable ordinary living expenses from any other account. 179However, Mr Sigalla is not charged with having made payments after 16 September 2009 in breach of the freezing orders. The only question is whether the two payments totalling $52,500 made on 9 September 2009 are within the proviso that the restraining order did not prevent the defendants from paying their reasonable ordinary living and operating expenses. The defendants were, relevantly, Mr Sigalla and BZI Pty Ltd ("BZI"). ASIC did not submit that a payment of living expenses for Mr Sigalla's wife or daughters was outside the scope of the proviso. It was correct not to do so. Plainly, the proviso encompassed not only Mr Sigalla's personal living expenses, but those of his dependants. I can infer from the fact that the moneys transferred to the JPMorgan Chase Bank account were used to pay the living expenses of Mr Sigalla's dependants, that that was the purpose of the payments. I am satisfied that the payments totalling $52,500 on 9 September 2009 were within the proviso. This fact is not negated because Mr Sigalla stated that the purpose of the payment was to pay school fees, whereas I would infer that that was not its purpose. The true purpose was still within the proviso. 180For these reasons the claim in para 31 of the further amended interlocutory process should be dismissed. Charges the subject of paras 33-41 of the Further Amended Interlocutory Process 181I described the charges the subject of paras 33-40 of the further amended interlocutory process in my reasons in ASIC v Sigalla (No. 3) . I there found that there was a case to answer in respect of those charges. In final submissions, counsel for Mr Sigalla stated that Mr Sigalla accepted that those charges had been proved (T507-508). In final submissions counsel for Mr Sigalla also stated that Mr Sigalla accepted that the charge the subject of para 41 of the further amended interlocutory process had been proved (T559). That charge was that Mr Sigalla was guilty of contempt of court in that in breach of order 5(a) of orders made by Austin J on 30 November 2009 he failed to disclose in his affidavit sworn 4 December 2009 the Sigalla JPMorgan credit card. Charge the subject of para 42 of the Further Amended Interlocutory Process 182The charge the subject of para 42 of the further amended interlocutory process is that Mr Sigalla is guilty of contempt of court in that he is in breach of order 5(c) of the orders made by Austin J on 30 November 2009 by failing to disclose in his affidavit sworn 4 December 2009 that the fourth defendant, BZI, had an interest in securities in Biosceptre Limited. 183On 30 November 2009 Austin J made the following orders: " 5 Orders that by 4pm on Friday 4 December 2009, the Sigalla Defendants are to file and serve on ASIC, an affidavit setting out: ... (c) an itemised inventory of the relevant Defendants' assets and liabilities; ... " 184The " Sigalla Defendants " was defined to mean the " First and Fourth Defendants ", that is, Mr Sigalla and BZI Pty Limited. 185Mr Sigalla swore an affidavit on 4 December 2009 in purported compliance with the obligations of himself and BZI under the orders of 30 November 2009. Counsel for Mr Sigalla did not submit that only BZI could be liable for contempt for breach of the order binding it. 186In his affidavit of 4 December 2009 Mr Sigalla described the assets and liabilities of BZI. He said: " 3. I refer to order 5 in the orders made in these proceedings on 30 November 2009. Pursuant to order 5(a) I set out the name of any bank, building society or other financial institutions at which there is an account in the name of or under the control of BZI Pty Limited ('BZI') ... ... (k) BZI has had no bank account since the closure of its NAB account in August 2009. ... 3 .[sic] BZI is owed a sum of money by ZMS. As at the date of swearing this affidavit I am unable to ascertain the precise amount of this indebtedness. 4. As at the date of swearing this affidavit the financial accounts for BZI and ZMS respectively have not been prepared for the period ending 30 June 2008 and 30 June 2009 respectively. In the absence of these accounts being prepared, I am unable to precisely identify the extent of this indebtedness. My prior accountants, William Buck, hold all of my documents and those of BZI and ZMS. I am in dispute with that firm as a consequence of the winding-up proceedings in relation to ZMS and the ATO. They have not provided documents to me as at the date of this affidavit. I will need to retain new accountants. ... 11. The only asset that BZI has is the loan to ZMS which is indeterminate. ... 13. BZI has no property which is secured over any debt. " 187On 22 January 2010 an officer of ASIC telephoned the finance manager of Biosceptre International Limited, Mr Lowe, inquiring whether BZI held shares in that company. Mr Lowe's initial response was to say " I think BZI has sold all their shares, but I can find out for you. " In due course Mr Lowe produced the share register of Biosceptre International Limited. It shows that as at 28 January 2010 BZI held 15,000 shares pursuant to certificate 175. The share register did not disclose when the shares were acquired. There was no evidence to show when the shares were acquired. 188On 15 December 2009 Mr Chambers of ASIC wrote to Mr Ward in relation to Mr Sigalla's affidavit of 4 December 2009. Amongst other things, he said: " 2. In November 2008 when seeking a loan from BankWest, which loan was ultimately approved in 2009, Mr Sigalla claimed as an asset 620,000 shares in Biosceptre International Limited valued at $2,480,000. Does Mr Sigalla retain such assets? If so, does Mr Sigalla possess documentary material evidencing such interest? If Mr Sigalla has disposed of such asset, can he please explain when and how such asset was disposed including details of the proceeds. " 189Mr Ward replied on the following day as follows: " Mr Sigalla, ZMS Investments or BZI Pty Limited do not own any shares in this company. I note that this company is a public company and assume that all records of shareholding are available to ASIC to discern. " 190On 5 February 2010 Mr Ward wrote further to ASIC on this matter. He said: " During the course of preparation of his evidence in these proceedings and in particular as a result of the receipt of documents from William Buck, his accountants, Mr Sigalla has identified that BZI Pty Limited owns 15,000 shares in an unlisted public company called Biosceptre Limited. We are instructed that the shares have no market or commercial value. In due course should it be necessary for Mr Sigalla to provide any further affidavit evidence as to his assets and liabilities he will include these shares in such affidavit. " 191Although there is no evidence as to when BZI acquired the 15,000 shares it still held in Biosceptre International Limited, it can be inferred beyond reasonable doubt that the shares were not acquired after 4 December 2009. Counsel for Mr Sigalla did not submit that the charge should be dismissed because ASIC had not proved that BZI held the shares at the date Mr Sigalla swore his affidavit. Rather, counsel submitted that ASIC had not proved beyond reasonable doubt that when he swore his affidavit Mr Sigalla knew that BZI held those shares and therefore had not established that the omission to refer to the shares was anything other than casual, accidental or inadvertent. I agree with that submission. 192ASIC called no evidence to rebut Mr Sigalla's sworn assertion that he did not have access to the relevant records when he swore his affidavit of 4 December 2009. If Mr Chambers accurately recorded the statement in the loan application to which he referred, and if the statement in that loan application were correct, (and there was no contrary evidence in respect of either proposition), BZI sold in excess of 97.5 per cent of its shareholding in Biosceptre International Limited after November 2008. It substantially divested itself of its shareholding. There is no evidence to contradict the assertion in Mr Ward's letter of 5 February 2010 that the shares had no commercial value. It appears from the face of Mr Sigalla's affidavit of 4 December 2009 that he was making a genuine effort to comply with the orders of 30 November 2009 in relation to the disclosure of the assets of BZI. No motive is suggested as to why Mr Sigalla would omit the reference to the shares in Biosceptre International Limited. I infer that without records he was then unaware that BZI still held such shares. That is consistent with the first letter written by Mr Ward when the matter was raised by ASIC. After further inquiries and after apparently having obtained access to documents, Mr Sigalla, through his solicitor, corrected the matter. I infer that the breach of the order was inadvertent. ASIC has not established the contrary. In Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737, Campbell JA held (at [64] 749): " ... proof that a contempt has been committed by breaching a court order involves proving enough to conclude that the action or inaction said to constitute the breach was deliberate, and not casual, accidental or unintentional. " In so concluding, his Honour applied Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd at 111-112. 193That has not been established in the present case. Conclusion and orders 194For these reasons I order that the claims in paras 1, 31 and 42 of the further amended interlocutory process be dismissed. 195I find that the first defendant, Mr Andrew Sigalla, is guilty of contempt of court in respect of each of the charges the subject of paras 33-41 of the further amended interlocutory process. 196These findings dispose of all of the substantive claims (save as to punishment and costs) in the further amended interlocutory process. 197I will stand the proceedings over to a convenient time to hear any evidence and to hear submissions on the questions of punishment and costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2011