Re Colina; Ex parte Torney [1999] HCA 57

Re Colina; Ex parte Torney [1999] HCA 57

The majority held that the Family Court contempt proceeding could proceed summarily. The initiating application was not an indictment, summary procedure for contempt was well established and authorised by the Family Law Act and Rules, and s 80 of the Constitution did not require a jury trial. Gleeson CJ, Gummow and Hayne JJ treated the power to punish contempt as an attribute of judicial power rather than an offence against a law of the Commonwealth; McHugh and Callinan JJ reached the same result because s 80 applies only where there is a trial on indictment. The Court also held that Nicholson CJ's public defence of the Family Court did not create any reasonable apprehension that Burton J...

Jurisdiction
Australia
Procedural Posture
Application for Writ of Prohibition Concerning Pending Family Court Contempt Proceedings / Full Court Determination of Application; Contempt Proceedings Had Not Yet Been Heard
Outcome
Application dismissed with costs.
Legal Topics
['scandalising the Court' 'trial by Jury Under S 80 of the Constitution' 'law of the Commonwealth' 'summary Contempt Procedure' 'apprehended Bias' 'judicial Independence']
['constitutional Law' 'contempt of Court' 'courts and Judges'] ['scandalising the Court' 'trial by Jury Under S 80 of the Constitution' 'law of the Commonwealth' 'summary Contempt Procedure' 'apprehended Bias' 'judicial Independence']

Case Brief

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Procedural Posture

Application for Writ of Prohibition Concerning Pending Family Court Contempt Proceedings / Full Court Determination of Application; Contempt Proceedings Had Not Yet Been Heard

Legal Issues

  1. 1 ['Whether contempt by scandalising the Family Court had to be tried by jury under s 80 of the Constitution rather than summarily.' 'Whether the application alleging contempt was, or had to be treated as, an indictment.' 'Whether the alleged contempt was an offence against a law of the Commonwealth.' 'Whether statements by Nicholson CJ created a reasonable apprehension that Burton J, or the Family Court institutionally, might not provide a fair and impartial hearing.' 'Whether summary procedures for contempt by scandalising the court were obsolete.']

Ratio Decidendi

The majority held that the Family Court contempt proceeding could proceed summarily. The initiating application was not an indictment, summary procedure for contempt was well established and authorised by the Family Law Act and Rules, and s 80 of the Constitution did not require a jury trial. Gleeson CJ, Gummow and Hayne JJ treated the power to punish contempt as an attribute of judicial power rather than an offence against a law of the Commonwealth; McHugh and Callinan JJ reached the same result because s 80 applies only where there is a trial on indictment. The Court also held that Nicholson CJ's public defence of the Family Court did not create any reasonable apprehension that Burton J...

Court Disposition

Application dismissed with costs.

Orders

  • ['Application dismissed with costs']