Contempt of Court: Consultation Paper (html)

6. Disobedience contempt

Introduction

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

6.2 Contempt proceedings arising from non-compliance are generally commenced by the party for whose benefit the order was made and any sanctions issued usually serve the interests of that party. However, there is a broader public interest in the exercise of the disobedience contempt power. As the High Court explained:

Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court’s authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.^[1]

6.3 The seriousness with which courts view breaches of a court order was expressed by Justice Gillard in Law Institute of Victoria v Nagle:

It is vital to the administration of justice in this State that a person bound by an Order obeys it. Disobedience of an order poses a threat to the administration of justice and attacks its very foundation. It threatens the rule of law and its destruction results in anarchy and a return to the law of the jungle. If a person bound by an order wilfully refuses to obey it and is not severely punished for wilful disobedience then parties in litigation will have no confidence in the legal system. Respect for the system must be maintained. There is a public interest factor in punishing a contemnor in most cases, especially where the contempt is a criminal one.^[2]

6.4 The different contexts in which disobedience contempt arises, and the different purposes for which disobedience contempt proceedings are initiated, have led to uncertainty about the nature of the proceedings and the procedures that should be adopted. In particular, those differences have led to an ambiguous distinction between:

• civil contempt which serves the purpose of compelling obedience with court orders, and

• criminal contempt which serves the purpose of punishing disobedience.

6.5 This chapter considers whether this distinction between civil and criminal contempt is sustainable and necessary and poses questions about whether it should be abolished.

6.6 In approaching that overarching question, this chapter considers the range of alternative enforcement procedures available to secure compliance with court orders and poses questions about whether it is necessary for parties to have recourse to disobedience contempt proceedings as an additional enforcement tool.

6.7 Finally, this chapter considers and poses questions about how disobedience contempt might be reformed to clarify its purpose and procedures.

Defining disobedience contempt

6.8 Court orders and undertakings to the court take many forms and address an almost infinite variety of subject matter. Consequently, disobedience contempt can be committed in many different ways.^[3]

6.9 For example, disobedience contempt proceedings can be commenced where a person refuses or neglects to do an act that they were required by a judgment or court order to do by a specified date.^[4] This may include a failure to: pay money into court or to another person;^[5] give possession of land;^[6] deliver goods;^[7]or comply with an order for interrogatories, discovery or the production of documents.^[8]

6.10 Disobedience contempt proceedings can also be commenced where a court order requires a person to abstain from doing an act, and the person has disobeyed the order.^[9] This may involve breach of an order which restrains a person from:

• dealing with their assets^[10]

• being at a certain place^[11]

• contacting a certain person^[12]

• publishing certain information.^[13]

6.11 Even in the absence of a judgment or order, disobedience contempt proceedings can be commenced when a person contravenes an undertaking they have given to the court to do or to refrain from doing a particular thing.^[14]

6.12 Finally, failure to comply with a subpoena without lawful excuse may also be a contempt of court.^[15]

Jurisdiction

6.13 As a superior court of record, the Supreme Court of Victoria has inherent power to punish for contempt of court, including where the contempt is by way of non-compliance with a court order or an undertaking given to the court. Further, the Supreme Court has power to deal not only with contempts of itself but with contempts of any inferior court.^[16]

6.14 The County Court has no inherent jurisdiction to deal with non-compliance with court orders or undertaking by punishing for contempt.^[17] However, this power is conferred on the County Court by statute.^[18]

6.15 As with all manifestations of contempt, in the Supreme and County Courts the procedure for commencing and hearing disobedience contempt proceedings, the punishments which may be imposed and the costs orders which the court may make are regulated by the Supreme Court (General Civil Procedure Rules) 2015 (Vic) and the County Court Civil Procedure Rules 2018 (Vic) (General Civil Procedure Rules). For relevant purposes, the Rules mirror each other.

6.16 The Magistrates’ Court also has no inherent jurisdiction to deal with non-compliance with court orders or undertakings by punishing for contempt. However, section 135 of the Magistrates’ Court Act 1989 (Vic) sets out the powers of the Magistrates’ Court to make and enforce orders, other than for the payment of money.^[19]

The elements of disobedience contempt

6.17 In order to prove disobedience contempt, the party bringing the proceedings must establish five elements:^[20]

1) that an order was made by the court

2) that the terms of the order were clear, unambiguous, and capable of being complied with

3) that the order was served on the alleged contemnor or that service was excused in the circumstances, or service dispensed with pursuant to the Rules of Court^[21]

4) that the alleged contemnor had knowledge of the terms of the order

5) that the alleged contemnor breached the terms of the order.

6.18 The party bringing the contempt proceedings must prove each of these elements beyond reasonable doubt.^[22]

6.19 Unless the terms of the order require otherwise, it is unnecessary to prove that the alleged contemnor committed the breach with an intention to disobey the court order.^[23] It is sufficient to establish that the alleged contemnor had knowledge of the terms of the order and they deliberately and voluntarily committed an act or omitted to do some act which had the effect of breaching the order.^[24]

Penalties

6.20 As with other types of contempt, the penalties for disobedience contempt are imprisonment or fine or both,^[25] and, for a corporation, sequestration^[26] or fine or both.^[27] The flexibility of the available punishments supports their potential use as a coercive tool. For example, where the court makes an order for imprisonment, fine or sequestration, the court can suspend execution of the order on condition that the contemnor comply with specified terms.^[28] Where a contemnor has been imprisoned, the court may order the release of a contemnor at any time.^[29]

6.21 What penalty is imposed for disobedience contempt depends on the purpose of the proceedings. Where the purpose is to coerce compliance with a court order, the penalty may be open ended, for example a fine which accrues until the breach is remedied or imprisonment until the contempt has been purged. However, where the purpose is to punish for a past breach, the term of imprisonment or the quantum of the fine is more likely to be fixed.^[30] The courts have held that where the contempt involves non-compliance with court orders that is not wilfully defiant, a sentence of imprisonment will rarely be appropriate as a disciplinary sanction.^[31]

Who brings proceedings?

6.22 Where a contempt arises from a breach of court orders made in civil proceedings it has generally been left to the parties, or to the court, to bring proceedings to deal with the contempt.^[32]

6.23 One explanation given for why it has not been the practice for the Attorney-General (or the DPP) to prosecute contempts arising from civil proceedings is that, unlike criminal proceedings, they have ‘no direct control over civil litigation and, unless informed by a party, could not be expected to know of interferences with such litigation’.^[33]

6.24 The result is that disobedience contempts arising from civil proceedings are generally prosecuted by a private party even though, if the contempt is proven, it may lead to imprisonment or fine and possibly conviction. The result is also that it is a private party who bears the financial risk of the contempt proceedings.

6.25 The costs of contempt proceedings are at the discretion of the court, whether a penalty is imposed or not.^[34] In Victoria a party found to be in contempt will usually be ordered to pay the applicant’s costs of the proceeding on an indemnity basis.^[35] This recognises that the party bringing the proceeding has vindicated the public interest in upholding the rule of law,^[36] and that ‘the litigant who must come to court to enforce an order which has been breached by contempt, or to have a person dealt with [for] contempt, should not be out of pocket’.^[37]

Issues with disobedience contempt

The distinction between civil and criminal contempt

6.26 Almost all forms of contempt are classified as criminal in nature and are described as criminal contempts. Traditionally, however, a contempt arising from breach of a court order or undertaking, particularly in civil proceedings, has been characterised differently. Contempts of this kind are usually described as civil contempts.^[38] This is not a fixed classification and in certain circumstances a civil contempt might be converted into a criminal contempt.

6.27 For example, where it can be shown that the breach of a court order or undertaking involved deliberate defiance, often referred to as ‘contumacy’, this may be relevant to whether the contempt is classified as civil or criminal.^[39] This is because where the breach is contumacious, the purpose of the contempt charge is said to shift from achieving compliance with the court’s order to punishing the alleged contemnor.^[40]

6.28 The High Court has described the distinction between civil and criminal contempts as illusory^[41] and unsatisfactory.^[42] The High Court has noted that ‘very great difficulty has been experienced in maintaining the distinction between civil and criminal contempts and, in particular, in elaborating a precise and certain criterion which divides one class of contempt from the other’.^[43] The High Court has observed that the concept that disobedience to an order becomes criminal when the primary purpose of exercising the contempt power changes from vindication of the private rights of the plaintiff to vindication of the authority of the court is both complex and artificial.^[44]

6.29 When identifying the uncertainty of the distinction between criminal and civil contempt, the courts have at the same time noted that the significance of the distinction has become less relevant to the procedures adopted, the standard of proof required and the penalties available.^[45]

6.30 The General Civil Procedure Rules do not distinguish between civil and criminal contempts and there is no provision for different procedures or punishment based on whether the contempt is civil or criminal.^[46] Nonetheless, the courts in practice continue to make this distinction. The case law shows that categorisation of a contempt as civil or criminal is often determined at the penalty stage of proceedings and is closely linked to the question of whether or not a conviction should be recorded.^[47]

6.31 The distinction between civil and criminal contempt complicates proceedings for disobedience contempt because, at the commencement of proceedings, the type of liability the alleged contemnor is exposed to may not always be entirely clear.^[48] This aspect of disobedience contempt proceedings has been the subject of judicial criticism because of the potential unfairness to an alleged contemnor who must determine how to defend the charge without fully knowing the nature of the liability they are exposed to.^[49]

6.32 Given the complexity and uncertainty generated by the distinction between civil and criminal contempt, the question arises whether the classification of ‘civil contempt’ should be abandoned and all disobedience contempts should simply be treated, like other contempts, as criminal. The answer to this question will likely also be informed by whether contempt proceedings are still regarded as having a necessary role to play in enforcing compliance with court orders or whether in practice their purpose is now primarily punitive.

Are contempt proceedings necessary to enforce court orders?

6.33 Case law indicates that disobedience contempt proceedings should not be commenced lightly, particularly when other more appropriate civil remedies are available to enforce an order of the court.^[50] In the Supreme Court case, Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd, Justice Gillard commented:

The enforcement of a court order by the remedy of contempt is indeed drastic, bearing in mind that the penalty includes imprisonment, and in my opinion contempt proceedings to enforce an order should be a remedy of last resort. As a general rule, the coercive function of the proceeding should only be employed when there are no other effective means of doing so. The cases support that proposition.^[51]

6.34 There are many alternative mechanisms which a party may use to enforce a court order made in their favour or an undertaking given to the court. Examples of alternative mechanisms available to enforce court orders include:

• Where the judgment or order concerns the possession of land, it may be enforced by a warrant of possession.^[52]

• Where the judgment or order concerns the payment of money, it may be enforced by a warrant of seizure and sale,^[53] attachment of debts,^[54] attachment of earnings,^[55] a charging order^[56] or the appointment of a receiver.^[57]

• Where the judgment or order concerns the payment of money, there is also legislation which specifically regulates the recovery of judgment debts, including the Imprisonment of Fraudulent Debtors Act 1958 (Vic)^[58] and the Judgment Debt Recovery Act 1984 (Vic). This later Act, for example, provides for

– the examination of debtors^[59]

– the making of instalment orders^[60]

– the stay of enforcement of the judgment when an instalment order is in force^[61]

– the enforcement of instalment orders in the event of default.^[62]

• Where the judgment or order concerns the delivery of goods, it may be enforced by a warrant of delivery.^[63]

• Where the order relates to interrogatories, discovery or the production of documents, other remedies for failure to comply include that the court may dismiss the action, strike out the defence, enter judgment for non-compliance and make orders as to costs.^[64]

• Where the judgment or order requires the person bound to do an act and the person bound does not do the act, the court may order substituted performance, that is, they may direct the act to be done by a person appointed by the court and direct the person bound to pay any costs and expenses occasioned by the default.^[65]

6.35 Where court orders are made under a statutory regime, the relevant Act may specifically provide for enforcement powers and procedures and also include statutory offences in relation to non-compliance. For example:

• The Family Violence Protection Act 2008 (Vic) empowers the court to make family violence intervention orders^[66] and counselling orders.^[67] The Act further provides that breach of a family violence intervention order is an offence punishable by imprisonment or fine or both.^[68] Likewise, a failure, without reasonable excuse, to attend counselling as ordered is an offence liable to a penalty not exceeding 10 penalty units.^[69]

• The Open Courts Act 2013 (Vic) regulates the power of various courts to make proceeding suppression orders, broad suppression orders and closed court orders. The Act creates offence provisions in relation to breach of orders made under the Act.^[70]

• The Sentencing Act 1991 (Vic) contains provisions dealing with the powers of courts to sentence offenders convicted of a range of criminal offences. Part 3C of that Act is concerned with contravention of sentencing orders and includes a number of offence provisions, for example, in relation to breach of a community correction order^[71] or breach of a fine conversion order.^[72]

• The Fines Reform Act 2014 (Vic), in conjunction with the Sentencing Act,^[73] provides for the management, collection and enforcement of court-imposed fines. Section 378 of the Children, Youth and Families Act 2005 (Vic) provides for the enforcement of fines against children.

6.36 These statutory enforcement and non-compliance offence provisions do not necessarily oust the disobedience contempt powers and jurisdiction of the court, particularly the inherent jurisdiction of the Supreme Court. In some contexts, the contempt jurisdiction and power of the courts are specifically preserved.^[74] However, the Victorian Criminal Proceedings Manual, published by the Judicial College of Victoria, advises that where applicable, these specific statutory offences should be used in preference to general contempt powers.^[75]

6.37 In view of the range of alternative enforcement options outlined above, it is arguable that it is no longer necessary for parties to have recourse to contempt proceedings as a means to compel compliance with court orders.

Possible reforms to disobedience contempt

6.38 The ability of courts to enforce their orders is of critical importance to the proper administration of justice.

6.39 As Justice Vincent in the Victorian Court of Appeal noted in Miller v Eurovox:

The status and enforceability of orders of the Court must be maintained if our system of civil dispute resolution is to possess efficacy and the respect of the community. As a general proposition, those who treat such orders with the contumelious disregard demonstrated in the present case must anticipate that they will be subject to significant sanctions, including, where appropriate, incarceration. The principles of general and specific deterrence are applicable to such situations in order to protect not only the rights created or vindicated by court orders but also the status of such orders and the very viability of the process itself.^[76]

6.40 The law of disobedience contempt therefore serves two interconnected purposes:

• coercing compliance with court orders and undertakings for the benefit of the party in whose favour the order was made

• punishing non-compliance with court orders and undertakings in order to safeguard the authority of the court and ensure that the public has confidence in the fact that court orders cannot be disobeyed without consequence.

6.41 As a result of these dual purposes, disobedience contempt proceedings may be characterised as hybrid in nature and considerable litigation has been generated focused on determining what laws, principles and procedures should apply.^[77] In Hearne v Street, Justice Kirby commented that the law of civil contempt:

as conventionally understood, lacks conceptual coherence and is replete with uncertainties, inadequacies and fictions. It calls out for re-expression or reform. Despite proposals for legislative change, such reform has thus far failed to materialise.^[78]

6.42 Disobedience contempt proceedings are generally prosecuted by a private party even though, if the contempt is proven, it may result in the imposition of a punishment and, possibly, a conviction. Further, despite the penalties that may be imposed, the proceedings do not attract all the procedural safeguards traditionally available to an accused facing a serious criminal charge. Moreover, as a result of the ongoing distinction between civil and criminal contempt, proceedings can be commenced and tried without the alleged contemnor knowing, until the penalty stage, whether the contempt, if proven, will amount to a criminal offence.

6.43 Like other manifestations of contempt, disobedience contempt has been subject to review in other Australian and overseas jurisdictions.^[79] A common theme of the recommendations from these reviews is that the law of disobedience contempt should be subject to some degree of legislative reform to clarify:

• when and for what purpose proceedings may be commenced

• what procedures should govern the proceedings

• who should be empowered to commence proceedings

• what penalties should apply.

6.44 Key aspects of some of these recommendations are summarised below. The differences between them highlight that the extent to which it is necessary for parties to have recourse to contempt proceedings to enforce court orders is an important consideration in whether and how disobedience contempt is reformed.

Australian Law Reform Commission recommendations

6.45 The Australian Law Reform Commission (ALRC) in its 1987 report recommended abolishing the common law of civil contempt and replacing it with:

• a statutory form of proceedings for civil enforcement of court orders which could be commenced only by the party in whose favour the order was made. The ALRC recommended that the penalties available in such proceedings should include imprisonment for a fixed term with the power to order earlier release if the contempt is purged; accruing fines subject to a daily limit and maximum cap; sequestration; and other sanctions.^[80]

• an indictable offence of wilful failure or refusal to comply with an order of the court in such a way as to constitute a flagrant challenge to the authority of the court. The ALRC recommended that the court should be able to direct that one of its officers institute a prosecution for the offence.^[81]

Law Reform Commission of Western Australia recommendations

6.46 The Law Reform Commission of Western Australia (WA Commission) concluded that the civil jurisdiction of contempt by disobedience should be abolished and replaced by offence provisions:^[82]

• an indictable offence, defined to include an element that the defendant wilfully disobeyed the order or undertaking, but with a defence available that the disobedience was due to a failure, based on reasonable grounds, to understand the nature of the obligation imposed by the order

• a lesser offence, not involving an element of wilful disobedience.^[83]

6.47 The WA Commission recommended that maximum penalties should apply to both

offences^[84] and that imprisonment should only be available in relation to the wilful disobedience offence.^[85]

6.48 With respect to applicable procedures, it was recommended that the more serious indictable offence for wilful disobedience should be tried according to the ordinary rules for indictable offences. However, it was recommended that the summary jurisdiction should be retained for the lesser offence, with a proviso that there should be a prohibition against the same judicial officer hearing the disobedience contempt matter as had made the original order or as had been presiding when the undertaking was made.^[86]

6.49 In relation to the lesser offence, it was also recommended that provision be made for a plaintiff to apply to the presiding judge for leave to initiate proceedings for the lesser offence of disobedience contempt within the summary jurisdiction of that court.^[87]

New Zealand Law Commission recommendations

6.50 The New Zealand Law Commission (NZ Commission) also recommended that new statutory provisions should be enacted to replace the common law in respect of disobedience contempt. However, the NZ Commission did not consider that these should take the form of offence provisions. The NZ Commission recommended as follows:

We agree that the party in whose favour the court makes an order should retain the ability to enforce that order through the ultimate sanction of contempt, because without contempt the party would not have adequate civil enforcement remedies. We agree with submitters that prosecuting an offence does not give the party an effective remedy. … We therefore recommend enacting a statutory form of contempt for responding to breaches of court orders, rather than a criminal offence.^[88]

6.51 The new provisions proposed by the NZ Commission contemplate that either a person who has obtained an ‘applicable court order’ or the Solicitor-General would be able apply to the court for an order that the other party has failed to comply with the order.^[89] An ‘applicable court order’ would not include an order requiring the payment of money or an order relating to the recovery of land. However, it would include an undertaking given to the court.^[90]

6.52 The courts would not be empowered to initiate this form of contempt proceedings of their own motion.^[91]

6.53 Under the proposed new provisions, where it is proven beyond reasonable doubt that the other party has, without reasonable excuse, intentionally failed to comply with the order, the court would be empowered to make an enforcement order which may include imposing a term of imprisonment or a fine. The Commission recommended that these penalties be subject to a maximum limit and recommended that this be set at six months for imprisonment and $25,000 for a fine.^[92]

Questions

25 Is there a need to retain the law of disobedience contempt?

26 If the law of disobedience contempt is to be retained:

(a) What benefit does the distinction between civil and criminal contempt provide? Should this distinction be maintained?

(b) Should the common law of disobedience contempt be replaced by statutory provisions? If so, should it be replaced by statutory offence provisions and/or a statutory procedure for civil enforcement of court orders and undertakings? In either case,

i. Who should be responsible for and/or be able to commence proceedings?

ii. What should the party commencing proceedings be required to establish and to what standard of proof?

iii. What penalties should apply?

1. Witham v Holloway (1995) 183 CLR 525, 532–3.

   ↑

2. Law Institute of Victoria Ltd v Nagle [2005] VSC 47 [5].

   ↑

3. Morgan v State of Victoria (2008) 22 VR 237, 258.

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4. Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 66.05(1)(a), 66.05(2); County Court Civil Procedure Rules 2018 (Vic)
   
   r 66.05(1)(a), 66.05(2).

   ↑

5. Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 66.02(1)(f), 66.02(2)(b); County Court Civil Procedure Rules 2018 (Vic)
   
   rr 66.02(1)(f), 66.02(2)(b). For special considerations which might apply when the judgment or order concerns the payment of money, see Morgan v State of Victoria (2008) 22 VR 237; Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193.

   ↑

6. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.03(2)(b); County Court Civil Procedure Rules 2018 (Vic) r 66.03(2)(b).

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7. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.04(1)(b); County Court Civil Procedure Rules 2018 (Vic) r 66.04(1)(b); See, eg, Harris v Marubeni Equipment Finance (Oceania) Pty Ltd [2018] VSCA 211, where the defendant failed to deliver up an excavator to the plaintiff (the mortgagee) by the date the court ordered.

   ↑

8. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 29.14(1),(3), r 30.10(1), (3); County Court Civil Procedure Rules 2018 (Vic)
   
   r 29.14(1), (3), r 30.10(1), (3).

   ↑

9. Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 66.05(1)(b), 66.05(2); County Court Civil Procedure Rules 2018 (Vic)
   
   rr 66.05(1)(b), 66.05(2).

   ↑

10. See, eg, Zhang v Fortune Holding Group Pty Ltd (No 2) [2018] VSCA 70; Fortune Holding Group Pty Ltd (No 3) [2018] VSC 22; Fortune Holding Group Pty Ltd (No 2) [2017] VSC 738.

    ↑

11. See, eg, VICT v CFMMEU [2018] VSC 794.

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12. See, eg, Legal Services Board v Forster (No 2) [2012] VSC 633.

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13. See, eg, National Australia Bank Ltd v Juric [2001] VSC 375.

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14. Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483, 489, 496; Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 563; Sidebottom v The Queen [2018] VSCA 280 [51].

    ↑

15. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 42.12(1); County Court Civil Procedure Rules 2018 (Vic) r 42.12(1). See also Supreme Court (Criminal Procedure) Rules 2017 (Vic) r 1.12 and County Court Criminal Procedure Rules 2009 (Vic) r 1.09 which provide that Order 42 (Subpoenas) of the General Civil Procedure Rules applies to criminal proceedings.

    ↑

16. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 360; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.05(1)(c).

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17. Morgan v State of Victoria (2008) 22 VR 237, 269.

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18. County Court Act 1958 (Vic) ss 53, 54.

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19. See also Magistrates’ Court Act 1989 (Vic) s 134 in relation to contempt arising from failure to comply with a summons.

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20. Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [31]; Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 234 IR 59; [2013] VSC 275, [8]; Law Institute of Victoria Ltd v Nagle [2005] VSC 35 [15]; National Australia Bank Ltd v Juric [2001] VSC 375 [37].

    ↑

21. County Court Civil Procedure Rules 2018 (Vic) r 66.10; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.10.

    ↑

22. Witham v Holloway (1995) 183 CLR 525, 534; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [32]; Law Institute of Victoria v Nagle [2005] VSC 35 [16].

    ↑

23. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (2014) 47 VR 527, 563–4; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [34], [51]

    ↑

24. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (2014) 47 VR 527, 563–4; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [51].

    ↑

25. County Court Civil Procedure Rules 2018 (Vic) r 75.11(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(1).

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26. A sequestration order is directed to named sequestrators who are required to take possession of the contemnor’s property and to retain it until the contempt has been purged and the court has made appropriate orders: see LexisNexis, Halsbury’s Laws of Australia (online at 25 September 2018) 105 Contempt, ‘8 Punishment, Injunctions and Enforcement of Orders’ [105–515].

    ↑

27. County Court Civil Procedure Rules 2018 (Vic) r 75.11(2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(2).

    ↑

28. County Court Civil Procedure Rules 2018 (Vic) r 75.11(4); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.11(4). See also McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309.

    ↑

29. County Court Civil Procedure Rules 2018 (Vic) r 75.12; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.12.

    ↑

30. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 563, 569–70.

    ↑

31. Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596, 640 (Bromberg J).

    ↑

32. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 562. For enforcement of orders by or against a non-party, see County Court Civil Procedure Rules 2018 (Vic) r 66.12 (1), (2); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.12 (1), (2). It is also established in case law that a person, not directly bound by an order, can be guilty of contempt of court if that person, with knowledge of the order, does an act which infringes, or frustrates, the efficacy of the order. See R v Witt [2016] VSC 19 [49]–[53]; R v Hinch (No 1) [2013] VSC 520 [55].

    ↑

33. Broken Hill Proprietary Co Ltd v Dagi [1996] 2 VR 117, 124, 126 (Winneke P).

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34. County Court Civil Procedure Rules 2018 (Vic) r 75.14; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 75.14.

    ↑

35. Deputy Commissioner of Taxation v Gashi & Anor (No 3) (2011) 85 ATR 262; [2011] VSC 448 [20]; National Australia Bank Limited v Juric (No 2) [2001] VSC 398 [67]–[70]; VICT v CFMMEU [2018] VSC 794 [44].

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36. Deputy Commissioner of Taxation v Gashi & Anor (No 3) (2011) 85 ATR 262, 270–1; [2011] VSC 448 [20]; VICT v CFMMEU [2018] VSC 794 [44].

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37. National Australia Bank Limited v Juric (No 2) [2001] VSC 398 [70].

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38. Witham v Holloway (1995) 183 CLR 525, 530; Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527, 562. It is noted that part of the Victorian Court of Appeal’s judgment in this case was appealed to the High Court. In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 the appeal was dismissed and the judgment of the Court of Appeal was affirmed. The judgment of the High Court was concerned with the nature of contempt proceedings, that is whether they are civil or criminal proceedings, and the Rules which govern them. The judgment of the High Court did not consider in detail the difference between civil and criminal contempts, except to cite earlier authorities which had described the distinction as illusory and an insufficient justification for the allocation of different standards of proof for civil and criminal contempt. The judgment of the High Court is discussed further in Chapter 3 under the heading ‘Adequacy of procedural safeguards’.

    ↑

39. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (2014) 47 VR 527, 564–5, 599; VICT v CFMMEU [2018] VSC 794 [9].

    ↑

40. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (2014) 47 VR 527, 565.

    ↑

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

    ↑

42. Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107.

    ↑

43. Ibid 108.

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44. Ibid.

    ↑

45. Witham v Holloway (1995) 183 CLR 525, 541 (McHugh J).

    ↑

46. County Court Civil Procedure Rules 2018 (Vic) Order 75; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 75.

    ↑

47. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (2014) 47 VR 527, 593–5.

    ↑

48. Ibid 527, [279]–[285]; Seymour v Migration Agents Registration Authority (2006) 234 ALR 350, 373 (Rares J).

    ↑

49. Seymour v Migration Agents Registration Authority (2006) 234 ALR 350, 373 (Rares J). In Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (2014) 47 VR 527, 593–600, the Victorian Court of Appeal considered whether a disobedience contempt charge must put the alleged contemnor on notice that what is alleged is a criminal contempt. The Court of Appeal concluded that deliberate defiance or contumacy, the existence of which might determine whether non-compliance with an order is a criminal contempt, does not need to be pleaded as part of the contempt charge. However, from a procedural fairness perspective, the Court of Appeal held that the alleged contemnor must at least be made aware that the charge is for a criminal offence or may be converted into a criminal offence if the conduct alleged is found to have been contumacious.

    ↑

50. Morgan v State of Victoria (2008) 22 VR 237, 269.

    ↑

51. Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 (13 June 2003) [93].The cases cited in support by Gillard J are Danchevsky v Danchevsky [1975] Fam 17 at 22–3 and Ansah v Ansah [1977] Fam 138, 144.

    ↑

52. This warrant directs the Sheriff to cause the plaintiff to have possession of the subject land: County Court Civil Procedure Rules 2018 (Vic)
    
    r 66.03(a), Order 70; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.03(a), Order 70.

    ↑

53. This warrant directs the Sheriff to take and sell the property of the person bound: County Court Civil Procedure Rules 2018 (Vic)
    
    r 66.02(1)(a), Order 69; Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.02(1)(a), Order 69; Magistrates’ Court Act 1989 (Vic) s 111(1)(a).

    ↑

54. County Court Civil Procedure Rules 2018 (Vic) r 66.02(1)(b), Order 71; Supreme Court (General Civil Procedure) Rules 2015 (Vic)
    
    r 66.02(1)(b), Order 71; Magistrates’ Court Act 1989 (Vic) s 111(1)(c).

    ↑

55. County Court Civil Procedure Rules 2018 (Vic) r 66.02(1)(c), Order 72; Supreme Court (General Civil Procedure) Rules 2015 (Vic)
    
    r 66.02(1)(c), Order 72; Magistrates’ Court Act 1989 (Vic) s 111(1)(b).

    ↑

56. County Court Civil Procedure Rules 2018 (Vic) r 66.02(1)(d), Order 73; Supreme Court (General Civil Procedure) Rules 2015 (Vic)
    
    r 66.02(1)(d), Order 73.

    ↑

57. County Court Civil Procedure Rules 2018 (Vic) rr 66.02(1)(e), 66.02(2)(a), Order 74; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 66.02(1)(e), 66.02(2)(a), Order 74.

    ↑

58. For discussion of the Imprisonment of Fraudulent Debtors Act and how it interacts with the Supreme and County Courts’ powers to commit for contempt, see Morgan v State of Victoria (2008) 22 VR 237, 265–7.

    ↑

59. Judgment Debt Recovery Act 1984 (Vic) pt III.

    ↑

60. Ibid pt II.

    ↑

61. Ibid s 9.

    ↑

62. Ibid pt IV. In particular, section 19(1) provides that a judgment debtor who has the means to pay the instalments under an instalment order and persistently and wilfully and without an honest and reasonable excuse defaults in the payment of those instalments shall be liable to imprisonment for not more than 40 days.

    ↑

63. This warrants directs the Sheriff to cause the subject goods to be delivered to the plaintiff or, if the Sheriff cannot do this to levy the property of the person bound for the assessed value of the goods: County Court Civil Procedure Rules 2018 (Vic) r 66.04(1)(a); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.04(1)(a); Magistrates’ Court Act 1989 (Vic) s 111(8).

    ↑

64. See, eg, County Court Civil Procedure Rules 2018 (Vic) rr 24.02, 21.02; Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 24.02, 21.02; Civil Procedure Act 2010 (Vic) s 56.

    ↑

65. County Court Civil Procedure Rules 2018 (Vic) r 66.11(1); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.11(1); Magistrates’ Court Act 1989 (Vic) s 135(2)(c); Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 66.11(1). See also Vella v Waybecca Pty Ltd (No 2) (2015) 303 FLR 315.

    ↑

66. Family Violence Protection Act 2008 (Vic) pt 4.

    ↑

67. Ibid pt 5.

    ↑

68. Ibid ss 123, 123A.

    ↑

69. Ibid s 130(4).

    ↑

70. Open Courts Act 2013 (Vic) ss 23(1), 27(1), 32(1).

    ↑

71. Sentencing Act 1991 (Vic) s 83AD.

    ↑

72. Ibid s 83ADA.

    ↑

73. Ibid ss 69–69Y.

    ↑

74. See, eg, Open Courts Act 2013 (Vic) s 6(1).

    ↑

75. Judicial College of Victoria, Victorian Criminal Proceedings Manual (Web Page, 26 February 2018), [8.3.2] <www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27318.htm>. See also R v Nationwide News Pty Ltd (2008) 22 VR 116, 129 (Mandie J).

    ↑

76. Miller v Eurovox Pty Ltd [2004] VSCA 211 [29].

    ↑

77. See, eg, Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors (2014) 47 VR 527.

    ↑

78. Hearne v Street (2008) 235 CLR 125, 136 (Kirby J).

    ↑

79. See, eg, Law Reform Commission of Ireland, Contempt of Court and Other Offences and Torts Involving the Administration of Justice (Issues Paper No 10, 2016); Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003); Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute, Report No 140 (2017); The Law Reform Commission, Contempt (Report No 35, December 1987).

    ↑

80. The Law Reform Commission, Contempt (Report No 35, 1987) lxxxiv–vii.

    ↑

81. Ibid 326 [561].

    ↑

82. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 95.

    ↑

83. Ibid 98.

    ↑

84. Ibid 107.

    ↑

85. Ibid 98.

    ↑

86. Ibid 101.

    ↑

87. Ibid 102.

    ↑

88. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 100 [5.61].

    ↑

89. Ibid [5.62].

    ↑

90. Ibid 100 [5.63], 101 [5.65].

    ↑

91. Ibid 100 [5.62].

    ↑

92. Ibid 101 [5.66]–[5.67].

    ↑