THE PROSECUTION AND DEFENCE OF CIVIL CONTEMPT PROCEEDINGS P R

THE PROSECUTION AND DEFENCE OF CIVIL CONTEMPT PROCEEDINGS
(HOW TO RUN A CIVIL CONTEMPT PROCEEDING)
PRESENTED BY RICHARD LILLEY SC AND CHRISTIAN JENNINGS
INTRODUCTION
1.
Contempt applications in civil proceedings, although rare, are one of the weapons in the
litigator’s armoury. They may be regarded as the ultimate enforcement mechanism. But
should be used only sparingly. Even then use must be limited to those rare occasions when
committing a party to prison1 is:
2.
(a)
Appropriate in order to coerce compliance with, or to enforce, an order; and
(b)
In your client’s interests.
This paper addresses the prosecution and defence of the contempt application in a practical
and hands-on way. This paper does not address applications for criminal contempt or
applications involving contempt by publication. Before embarking on its function, it is
useful for the inexperienced to consider the background, history and nature of the modern
contempt application. Thankfully, Atkinson J has provided a concise and very helpful
treatise in this regard2 which we recommend as compulsory reading to all before taking the
step of prosecuting or defending a contempt proceeding.
3.
The structure of this paper will:
(a)
Discuss the decision to prosecute for civil contempt and the conduct of that
prosecution;
1
2
(b)
Discuss the defence of civil contempt proceedings;
(c)
Discuss facts relevant to punishment and orders for costs;
Hafele Australia Pty Ltd & Anor v Maggbury Pty Ltd [2000] QCA 397 per Muir J (with whom McPherson JA
and Thomas JA agreed) at paras 34 to 38 but at [36] and [37]:
“[36] The above observations of James LJ remain valid. The Uniform Civil Procedure Rules and their
predecessors make provision for contempt proceedings in order to provide for the enforcement of the process
and orders of the Court and the punishment of acts which impede the due administration of justice. In the case
of civil proceedings, the main purpose of the sanctions provided by the Rules in the event of a failure to
comply with court orders is coercive rather than punitive.
[37] Applications, such as the one under consideration, serve neither of these objectives. In my view, resort to
contempt proceedings by litigants for the purposes of forensic manoeuvring should be discouraged.”
Bakir v Doueihi & Ors [2001] QSC 414 (6 November 2001) unreported, paragraphs [3] to [30].
2
(d)
By way of summary, proffer a ‘checklist’ of matters to consider when either
prosecuting or defending contempt proceedings.
PROSECUTION
4.
It is helpful to address the considerations involved in prosecuting a contempt proceeding in
the following order:
(a)
Against whom may contempt proceedings be commenced?
(b)
The decision to prosecute;
(c)
The charges;
(d)
The evidence;
(e)
The proper commencement.
A. Against whom may the action be brought?
5.
Civil contempt proceedings are most commonly brought against a party to civil proceedings
who is in breach of:
6.
(a)
Mandatory orders;
(b)
Negative orders (eg. injunctions);
(c)
Undertakings; or
(d)
Procedural orders (eg. failing to answer interrogatories or to give disclosure).
A party to civil proceedings may be vicariously liable for contempt when a servant or agent
of that party has breached an order.3 Liability for contempt turns on whether the servant or
agent was acting on behalf of and within the scope of authority conferred by the party to the
litigation.
7.
While injunctions generally address a party to proceedings “by himself, his servants or
agents”, the wording of the injunction does not itself bind a person (ie. the servant or agent)
who is not a party to the proceedings.4 If a servant or agent knowingly assists a party to
proceedings to breach an order, then that servant or agent may be committed for contempt,
3
4
Evenco Pty Ltd v Australia Building Construction Employees and Builders Labourers Federation (Qld Branch)
[2001] 2 Qd R 118, 126 per McMurdo J and Heatons Transport (St Helens) Ltd v TGWU [1973] AC 15.
Ivans v Harris (1802) 32 ER 102 and Royal Bank of Canada v Canstar Sports group Inc [1989] 1 WWR 662.
3
not because they have acted in breach of an order, but because they have ‘so conducted
themselves as to obstruct the course of justice’.5
8.
If not for specific provision in the Uniform Civil Procedure Rules 1999, a director, who is
not a party to the relevant proceedings, would only be liable for contempt if he or she was
knowingly involved in a breach of an order.6 By r.898(2), if the court has made a nonmoney order directed at a corporation requiring an act to be done within a stated time or
requiring the corporation abstain from performing an act, that order may be enforced by
contempt proceedings against the corporation and against an “officer”7 of that corporation.8
A director of a corporation with notice of orders directed against that corporation, is under a
duty to take reasonable steps to ensure that the order (or undertaking) is obeyed, and if he or
she wilfully fails to take those steps and the order is breached, he or she can be punished9 for
contempt.10
B. The Decision to Prosecute
9.
Obviously, when making a decision to prosecute for civil contempt the prospects of success
will be the most important consideration for the party bringing the action. Broader public
policy considerations are unlikely, it is suggested, to sway a litigant to commence civil
contempt proceedings if the prospects of success are not good. This part addresses a
number of considerations relevant to a determination of the prospects of success.
10.
One of the goals of civil contempt proceedings is to ensure compliance with the order or
undertaking the subject of a breach, but, as noted, there is also a public interest in ensuring
orders are not disobeyed.11
11.
It can rarely, if ever, be in your client’s interests to have the opponent committed to prison
or fined. So great care is needed when making the decision to prosecute. Generally, a
decision is called for when there has been non-compliance with an order or breach of an
5
6
7
8
9
10
11
Marengo v Daily Sketch and Sunday Graphic Ltd [1948] 1 All ER 406.
cf. Attorney-General v Newspaper Publishing plc [1988] Ch 333.
Schedule 4 of the UCPR defines “officer” to include a former officer of a corporation. Section 9 of the
Corporations Act 2001 (Cth) defines an ‘officer’ of a corporation to include, inter alia, a director, secretary,
receiver, administrator and liquidator of a corporation and (so-called) “shadow directors”.
By way of illustration, see Stewart v Gymboree Pty Ltd [2001] QCA 307.
For a discussion on the principles relevant to the imposition of punishment against a director and a company, see
McMillan Graham Printers Ltd v RR (UK) Ltd [1993] TLR 152, CA.
Evenco Pty Ltd v Amalgamated Society of Carpenters, Joiners, Bricklayers and Plasterers of Australasia Union
of Employees Queensland (Unreported, SCQ No. 4843 of 1986; No 1794 of 1988, 23 March 1999 per
Chesterman J) para 77-79, citing with approval Attorney-General for Tuvalu v Philatelic Distribution Corp Ltd
[1990] 1 WLR 926. Also, see Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 394.
Phonographic Performance Ltd v Amusement Caterers (Peckham) Ltd [1964] Ch 195, 198-9 per Cross J. The
public interest considerations relevant to civil contempt proceedings have fuelled a blurring of the traditional
bounds between civil contempt proceedings and criminal contempt proceedings: Jennison v Baker [1972] 2 QB
52, 61.
4
undertaking to the Court.12 A client must be made aware that while contempt proceedings
may result in compliance with an order or undertaking they may equally result in a fine or
imprisonment, meaning that the client might expend funds for no eventual litigation benefit.
It is necessary to consider whether there is scope for the court to exercise its coercive power
(ie. whether the breach is capable of remedy), or whether the court can only exercise its
punitive power to punish.13
12.
Before embarking on the decision it is necessary to consider:
(a)
In the case of non-compliance with an order, whether the order has been
sufficiently served;
(b)
In the case of a breach of undertaking,14 whether the giver of the undertaking can
be “fixed” with knowledge of the undertaking given;
(c)
In either case, whether the order or undertaking is sufficiently clear and
unambiguous so that the breach can be “clear beyond all question”.15
13.
In addition, alternative methods of enforcement of orders or undertakings should be
considered. A court will generally be reluctant to punish for contempt where there is an
appropriate alternative means of addressing a breach of order or undertaking. For example,
where a party has breached a procedural order, the Court may give judgment against the
offending party.16 Also, where practicable, a court may order substituted performance of an
act ordered to be done.17
14.
We pause here to remark:
(a)
Most applications for contempt that fail are lost on grounds arising from the
circumstances at the time an order was made, an undertaking was given or because
of a lack of adequate notice of the order or undertaking;
(b)
The considerations which are now to be discussed should inform counsel as to
appropriate steps to be taken and other necessary considerations when seeking
orders or agreeing to undertakings.
12
13
14
15
16
17
Rule 900(1) and 925(1)(a) UCPR.
For an example of a situation where the orders breached were unable to be remedied, see Australian Securities
Commission v Macleod (1993) 40 FCR 461.
Undertakings are enforceable by way of contempt proceedings by reason of r.900(1) UCPR.
Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387, per Jenkins J.
UCPR, r.371-374, see also r.896-905.
See Federal Court Rules, O 43 r 28, UCPR, r.899. While alternative means of enforcing orders do not affect the
power of a court to punish for contempt, where there is a reasonable alternative method of enforcement, the court
may grant this alternative relief rather than committing the respondent to prison for contempt: Danchevsky v
Danchevsky [1975] Fam 17.
5
Service and notice of the orders
15.
Generally, for a non-money order to be enforced by civil contempt proceedings, the order
must have been personally served or clear notice of the order must have been given to the
party to whom the order is directed18 and, in the case of an order requiring a party to do an
act, the order must have been served before the expiration of that time.19 Service of an order
on a solicitor is not, by itself, sufficient for the purposes of supporting a contempt
application.
16.
For the purposes of supporting civil contempt proceedings, personal service is not required
of the order on a third party liable for contempt because of his or her knowing participation
in a breach of that order or of an undertaking given by a party said to be in breach of that
undertaking.21
17.
Furthermore, when an order requires an act to be done, the order “must” specify the time
within which the act is to be done and be endorsed accordingly.22 If an order does not
specify the time, by reference to a number of days or date, by which an act is to be done, but
says, for example, that the act must be done “forthwith” or “immediately”, a court is likely
to find that such a delimitation of the period of time is sufficient for the purposes of the
relevant court rules. Such an order is likely to be construed to require action within a
reasonable time.23
18.
It is for the prosecutor to prove, beyond a reasonable doubt, that the alleged contemnor had
the requisite notice of the order and/or was aware that the undertaking had been given.24
19.
It is now not strictly necessary that the order (to be enforced by civil contempt proceedings)
be endorsed with what is referred to as the “penal provision”.25 The requirement with
respect to endorsement of the “penal provision” differs from court to court. It is important
when considering this aspect to read any relevant reports of cases in the context of the
specific rule to which the cases apply.26 Under the UCPR, r.665(3) states that an order
18
19
21
22
23
24
25
26
UCPR, r.904 (note that it operates “unless the court otherwise orders”). As to notice, see Madeira v Roggette Pty
Ltd [1992] 2 QdR 357, where evidence that the solicitor had read over an order, and sent a copy to the client was
sufficient. Personal service is required to enable the person bound by the order to know what conduct would
amount to breach, eg. R v City of London Magistrates’ Court ex parte Green [1997] 3 All ER 551.
UCPR, r.904(2)(b), Federal Court Rules, O 37 r.2(4).
Attorney-General for Tuvalu v Philatelic Distribution Corp [1990] 1 WLR 926, 937 per Woolf LJ.
Rule 665 UCPR, O 40 r 8, see also, O 37 r 2 Federal Court Rules.
Australian Securities Commission v Macleod (No 2) (1993) 40 FCR 461, 464-5 per Drummond J.
Churchman v Joint Shop Stewards’ Committee of the Worker of the Port of London [1972] 1 WLR 1094, 1098.
Rule 665(3) UCPR, O 37 r 2(3) Federal Court Rules. See Davy International Ltd v Tazzyman [1997] 3 All ER
183.
cf. The Queensland Supreme Court Rules, r.44.4, Federal Court Rules O 37, r.2(3).
6
requiring a party to perform an act must have written on it a statement to the effect that if
that party does not obey the order they face, inter alia, “punishment for contempt”.
20.
In the end however, it is likely that a contempt prosecution will be successful if the only
shortcoming is the absence of the “penal provision”.27 This is particularly the case where
the alleged contemnor does not give evidence to explain why he/she was of the opinion a
penalty might not result. The lack of the notice does not deprive the Court of jurisdiction to
make an adjudication of the contempt, but is a fact relevant to the court’s discretion to order
committal.28
21.
Something more should be said about personal service:
(a)
The requirement may be overcome by proof of knowledge of content eg. evidence
it was read over29 or by evidence the relevant party was in court when the order
was made;30
(b)
Although probably just another example of the proposition stated in (a) above, it is
worth noting that where a consent order is made in the absence of a party but in the
presence of his/her legal representative, it may be inferred in the absence of
evidence to the contrary that the party was aware of the order and authorised its
making.31 In such a situation, it is for the respondent to show that he or she did not
have requisite notice by, for example, demonstrating that the legal representative
exceeded his or her authority when consenting to the orders;
(c)
While the above statements are taken from the developed common law, it is worth
noting that there are now specific provisions in Queensland in the form of r.904 of
the UCPR which by subrule (2) allows the court to proceed if the alleged
contemnor has notice of the order because:
(i)
He/she was present when the order was made; or
(ii)
He/she was notified of the terms of the order by telephone or in another
way a reasonable time before the end of time for performance of the act or
27
28
29
30
31
Davy International Ltd v Tazzyman [1997] 3 All ER 183, Australian Securities Commission v McLeod & Ors
(No. 1) (1993) 40 FCR 155. UCPR r.665(3) is subject to r.367 and r.371, which may allow the court to hear civil
contempt applications notwithstanding the absence of a “penal provision” in the relevant orders.
Australian Securities Commission v McLeod & Ors (No. 1) (1993) 40 FCR 155, 159-160, 162 per Drummond J.
Madeira (supra at fn.10) and also see r.904 UCPR.
Davy International Ltd v Tazzymann [1997] 3 All ER 183, 188, see also Battle Pty Ltd v Hoy [2000] QDC 43.
Australian Securities Commission v McLeod & Ors (No. 1) (1993) 40 FCR 155, 161 per Drummond J. For
example, see Turner v Naval, Military and Civil Service Co-operative Society of South Africa, The Times,
January 21, 1907 and Re M: M v Home Office [1992] 4 All ER 91, 118.
7
before the time when the prohibited act was to be performed as the case
requires.
It should not be thought that r.904 is exhaustive of the circumstances in which a
court can be satisfied as to notice. Clearly it is not.
22.
While, as in McLeod (supra), a court might infer knowledge of content from consent to an
order, it is doubtful that a court would infer knowledge of a complicated undertaking in the
absence of that knowledge by personal service or presence in court (it is for this reason that
where undertakings are to be given counsel accepting them should insist on presence in
court or some other evidence of knowledge eg. a copy of signed instructions. Alternatively,
counsel might seek the inclusion of an order dispensing with the need for personal service
but there will need to be some form of notice in lieu).
Sufficiently Clear and Unambiguous
23.
In Queensland, as opposed to Victoria32, the Court should, in construing an order or
undertaking, have regard to the factual matrix which was known to both parties. This
approach appears consistent with the judgement of Barwick CJ.33 But there are limits on
such an approach.34 It should be noted that Barwick CJ35 concluded:
“If the order or undertaking is so expressed as to be meaningless, there is of
course nothing which can be enforced. But, if it bears a meaning which the Court
is satisfied is one which ought fairly to have been in the contemplation of the
person to whom the order was directed or who gave the undertaking as a possible
meaning, the fact that that meaning results from a process of construction and
involves a choice of possible meanings does not, in my opinion, preclude the Court
from enforcing the order or undertaking in the sense which the Court assigns to
it.”
32
33
34
35
cf. Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld
Branch) [2001] 2 QdR 118 at 135 and Livingspring Pty Ltd & Ors v Chris Haktoh NG & Ors [2007] VSC 9
Cavanough J, 5 February 2007 at [31] .
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 492.
In Morgan Ibid:
“If the Court is satisfied that the party said to be in contempt bona fide believed himself bound only by a
construction which the Court thinks to be erroneous, it may for that reason, in its discretion, refuse to make
an order or, if it makes an order, refuse to make an order for costs against that party. … A party who has
bona fide acted on an erroneous view of an order or undertaking may, according to the circumstances, none
the less be justly adjudged guilty of contempt in procedure..”
His Honour did not follow Jenkins J in Redwing (supra at fn 15) when he said:
“In my judgment, a defendant cannot be committed for contempt on the ground that upon one of two possible
constructions of an undertaking being given he has broken his undertaking. For the purpose of relief of this
character I think the undertaking must be clear and the breach must be clear beyond all question.”
Morgan (supra) at fn 33.
8
24.
It is worth noting that notwithstanding this authority Victoria and the Northern Territory
have adopted a far stricter approach to interpretation.36
25.
Importantly, in this aspect of the matter, if an alleged contemnor wishes to rely on an
alleged ambiguity in the order or undertaking, it appears, at least in Queensland, that the
alleged contemnor will need to give evidence as to a bona fide belief in his/her construction
of the order or undertaking. So that in making the decision to prosecute, even where there is
some doubt as to the construction of an order or undertaking, an applicant may successfully
force a respondent into evidence and gain some coercive benefit.
26.
But in closing this aspect of this paper, the decision to prosecute should not be made if the
only desirable outcome is to further the purposes of forensic manoeuvring and not to
imprison or at least coerce compliance.37
C. The Charges
27.
The application should obviously seek orders that the respondent thereto be “committed or
otherwise dealt with” for contempt of court. While frequently adequate applications use
other wording, it seems fair to inform the respondent that the applicant actually wants
him/her imprisoned unless of course imprisonment is not sought.
28.
More importantly though, the application should then lay or particularise the charges of
contempt much in the same way as one might expect to see in an indictment so, for example,
in the case of dealing with money in breach of Mareva injunction a charge might be:
“In that by paragraph 1 of the order having been restrained from spending any
sum exceeding $1,000 per week upon reasonable living expenses the respondent
did by two payments made on 21 November 2006 expend the sum of $6,000 being
$3,000 for airline tickets for himself and one Mary Smith and $3,000 for traveller’s
cheques issued in the name of the said Mary Smith which expenditure was not
made for reasonable living expenses.”
29.
Each charge should itself, or by its particulars, sufficiently specify the alleged contempt.38
30.
Each complaint of breach of the order or undertaking should be made the subject of a
separate charge so that the trial judge and the respondent are immediately informed of the
charges which the respondent must answer.
36
37
38
See the judgements in Tovhead Pty Ltd v Owston Nominees (No. 2) Pty Ltd [2002] NTSC 64 Angel J 29
November 2002 and Livingspring (supra) at fn 32.
Hafele Australia Pty Ltd & Anor v Maggbury Pty Ltd [2000] QCA 397 per Muir J.
CFMEU v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [30]-[31] and Inghams Enterprises Pty Ltd v Timania Pty
Ltd (2005) 201 ALR 823 at 835-836
9
D. The Evidence
31.
It is necessary for the prosecution to prove, first, that the alleged act or omission by the
respondent constitutes a breach of the relevant order or undertaking – and that the breach
was wilful, in the sense that it was not casual, accidental or unintentional39 – and, second,
that the alleged act or omission occurred. It is now trite to say that the evidence to be
adduced, if the applicant is to be successful, must prove each charge beyond a reasonable
doubt.40 Obviously, hearsay evidence will not be admissible for that purpose.41
32.
In the first instance the evidence should be put in the form of an affidavit in support of the
application and served with the application.
33.
In arranging the affidavit in support, it is helpful in respect of each affidavit, to deal with
each charge so that the trial judge and the respondent can see, easily, the evidence that
supports each particular charge.
E. Proper Commencement
34.
Part 7 of the UCPR by rr.921-932 deals with contempt proceedings. Before instituting a
contempt proceeding one should be fully familiar with those provisions and read them
carefully. Of relevance to the matters covered by this paper, are the provisions of r.925 and
r.926(2). The applicant is given a choice of making the application in the proceeding in
which the contempt was committed or by starting a new proceeding. But in either event, it
appears by r.926(1) that the proceeding is to be commenced by an application and not a
claim.
35.
By r.926(3) the application must be supported by affidavit material and the application and
the supporting affidavits must be served personally.42
36.
Only in rare cases will the hearing of contempt proceedings be suitable for listing in the
applications jurisdiction. The likely dispute of fact between the parties, the need for crossexamination of the prosecution’s witnesses, and submissions on procedure, liability and
penalty make even the most straightforward contempt application likely to require a one-day
hearing.
39
40
41
42
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 112-3.
Witham v Holloway (1995) 183 CLR 525. The applicable standard of proof in Australia had previously been the
subject of confusion: see, for example, Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd [1983] 1 NSWLR
127 cf. Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127.
El Capistrano AS v ATO Marketing Ltd [1989] 2 All ER 572, cf. Savings and Investment Bank Ltd v Gasco
Investments (Netherlands) BV [1988] Ch 422.
Rule 106 UCPR in the case of individuals and r.107 UCPR in the case of a corporation. Also see rr.108-110
UCPR for specific categories of individuals.
10
DEFENCE
37.
In many respects, the matters relevant to defending contempt proceedings are identical to
those matters relevant to its prosecution.
What follows is a series of important
considerations when acting for a respondent to an Application seeking punishment for
contempt.
A. Procedural concerns
38.
As noted, only in limited cases will the applications jurisdiction be an appropriate forum for
the determination of a civil contempt proceeding. Subject to instructions, the respondent is
likely to require cross-examination of witnesses and likely to make submissions on
procedural and substantive matters. Accordingly, on the first return date of an application
seeking punishment for contempt, it is appropriate that the parties seek directions for the
future conduct of those proceedings. The directions may provide for:
39.
(a)
The provision of further particulars by the prosecution;
(b)
The delivery of affidavit material by the prosecution; and
(c)
The hearing of the proceedings in the civil jurisdiction.
A respondent to civil contempt proceedings can not be compelled to give evidence against
his or her will.43 Accordingly, it is suggested that it is inappropriate for the respondent to be
the subject of directions requiring him or her to deliver any affidavit material by a specified
date.
40.
A further concern for the respondent is the potential overlap between civil and criminal
contempt. Although less likely in civil contempt proceedings the subject of this paper,
where there are, or there are threatened, concurrent civil contempt and criminal proceedings
for the same conduct of the respondent/accused, the courts seem reluctant to adjourn the
contempt proceedings on the ground that their continuation will seriously prejudice the
respondent/accused. 44 To stay contempt proceedings the respondent must rely on more than
the fact that in those proceedings the respondent/accused will be forced (if he or she elected
to give evidence) to reveal his or her defence in the criminal proceedings.45
43
44
45
Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67, 74 per Denning LJ.
M v M [1997] 1 FLR 762, 764B-D per Lord Bingham CJ.
Keeber v Keeber [1995] 2 FLR 748, 751 per Butler-Sloss LJ.
11
41.
In appropriate circumstances, the Court may order security for costs in contempt
proceedings.46
B. Defences based on a failure to adhere to strict requirements
42.
Procedural safeguards incorporated into civil contempt proceedings make these proceedings
susceptible to technical defences. If the prosecution has failed to comply with procedural
safeguards, counsel for the respondent should consider a “no case” submission.
Has there been personal service?
43.
Subject to any order waiving the need for personal service, instructions should be obtained
regarding service of the orders sought to be enforced by contempt proceedings and service
of the Application seeking punishment for contempt. As noted, generally, both the order
and the Application must be served personally on the person sought to be committed for
contempt.47
Are the charges sufficiently particularised?
44.
It is not sufficient that the grounds for the Application for contempt be in general terms.
The charges must be pleaded with sufficient particularity to enable the respondent to defend
him or herself.48 If the charges require the provision of particulars, an appropriate direction
should be sought on the first return date of those proceedings.
Are the orders sought to be enforced ambiguous or vague?
45.
An order or undertaking will not be enforced by contempt proceedings if its terms are
ambiguous.49 This requires consideration of the terms of the order and the breadth of the
obligations imposed: see paragraphs 23 to 25 above as to how effective in Queensland a
defence of ambiguity may be.50
C. Defences raised on the facts
46.
In view of the quasi-criminal nature of civil contempt proceedings, it is important to
consider whether the respondent should give evidence or whether the respondent should rely
on the prosecution failing to prove material facts beyond a reasonable doubt. This question
46
47
48
49
50
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] 2 Qd R 187 per White J. See r.670-676 UCPR.
Doyle v Commonwealth (1985) 60 ALR 567, 571.
Chiltern District Council v Keane [1985] 1 WLR 619, 622.
R v City of London Magistrates’ Court ex parte Green [1997] 3 All ER 551.
An example of technical ambiguity is found in Federal Bank of the Middle East v Hadkinson [2000] 2 All ER
395, where the court found that the phrase “his assets and/or funds” was ambiguous because it did not make clear
whether the order was directed at assets or funds. It is doubtful that such a technical submission would be
accepted in Queensland.
12
can only be answered on the facts of each case. But the real question will always be
whether to expose an alleged contemnor to cross-examination.
PUNISHMENT AND COSTS
47.
If a respondent has been found in contempt of court for breach of an order or undertaking,
the following are matters relevant to punishment:51
(a)
The seriousness of the contempt;
(b)
Whether the breach may be “undone” by, for example, a re-transfer of property or
repayment of money, this is called “purging the contempt”. Although, it should be
recognised, there are limits to the effectiveness of this by way of mitigation;52
(c)
Whether the contemnor has shown remorse;
(d)
The bona fides of the contemnor and his or her reasons, motives and states of
mind.53 The court may, however, refuse to receive “fresh” evidence after a finding
that the relevant party is in contempt if that new evidence contradicts such a
finding;54
(e)
48.
Whether a costs order against the contemnor is sufficient punishment.55
It will be necessary, in submissions on punishment, to make submissions on what is
appropriate, with reference to comparable cases. From an applicant’s point of view, it is
recommended that submissions on punishment be left until findings on contempt are made,
this is particularly recommended when the applicant seeks the contempt be purged.
49.
In cases where a party in contempt remains able to comply with an order or remedy a
breach, the court may use powers in contempt to coerce a respondent into compliance. This
may involve an indeterminate period of imprisonment for the respondent pending
compliance or imprisonment and an adjournment of sentencing.56 If the contempt is unable
to be purged, there is no scope for the court to coerce a respondent to comply with an order.
51
52
53
54
55
56
See, UCPR, r.930 and 931.
Australian Securities Commission v Macleod (No 2) (1993) 40 FCR 461, 476 per Drummond J. There, the
defendant was found to have wilfully breached a number of orders, including an order for the production of a list
of assets. At the conclusion of the hearing, after the defendant had been found guilty of contempt, and only after
his property had been identified by the applicant, did the defendant offer to purge his contempt by producing a
list of his property. Drummond J thought that the delivery of such a list, given its lateness, would have “limited
significance” to mitigation of punishment because it was not evidence of the defendant’s remorsefulness.
Miller v Scorey [1996] 1 WLR 1122, 1132D-E.
Australian Securities Commission v Macleod (No 2) (1993) 40 FCR 461, 476 per Drummond J.
Sun Newspapers Pty Ltd v Brisbane TY Ltd (1989) 92 ALR 535. In that case there were, however, mitigating
factors and the court was only otherwise inclined to impose a fine.
Australian Securities Commission v Macleod (No 2) (1993) 40 FCR 461, 481 per Drummond J.
13
In that case, it is appropriate that the punishment be fixed, eg. by reference to a fixed term of
imprisonment or fine.
50.
The costs of a civil contempt application are within the discretion of the court, whether or
not punishment is imposed against the respondent.57
CHECKLIST
51.
For the prosecution:
(a)
Should an application for civil contempt be commenced? Are there alternative
procedures available?
(b)
Who is the proper respondent? If the party to the proceedings is a corporation, is it
appropriate to bring civil contempt proceedings against an officer?
(c)
Is the order sufficiently certain?
(d)
Did the respondent have requisite notice by: (i) personal service of the order sought
to be enforced by the contempt proceedings and the Application; (ii) the application
of r.904 UCPR (iii) proof that the respondent read the order; or (iv) the inference
drawn when an order by consent is made in the absence of the party but in the
presence of his or her legal representative?
(e)
Was the order endorsed with the penal provision? If not, what other circumstances
exist that might indicate to the court that the respondent knew a penalty might
result on breach?
(f)
Does the Application contain sufficient particulars of the charges?
(g)
Is there sufficient admissible evidence to prove that the breach was wilful, in the
sense that it was not casual, accidental or unintentional?
52.
For the defence:
(a)
Does the instructing solicitor have money in trust?
(b)
What, if any, directions are required to ensure the respondent understands the case
he, she or it must meet? Is there a need for further particulars of the charges?
57
UCPR, r.932.
14
(c)
Are there concurrent criminal proceedings?
Is it appropriate to seek an
adjournment or stay of the civil contempt proceedings?
(d)
Has the prosecution strictly complied with the need to establish notice by: (i)
personal service of the order sought to be enforced by the contempt proceedings
and the Application; (ii) the application of r.904 UCPR (iii) proof that the
respondent read the order; or (iv) the inference drawn when an order by consent is
made in the absence of the party but in the presence of his or her legal
representative?
(e)
Is the evidence to be relied on by the prosecution admissible?
(f)
Should a “no case” submission be made?
(g)
Should the respondent give evidence?
20 February 2007