Contempt of Court: Report (html)

8. Disobedience contempt: non-compliance with court orders and undertakings

Overview

• A person may be dealt with for contempt when they do not comply with an order made by, or an undertaking given to, the court.

• Non-compliance with court orders threatens the rule of law and undermines public confidence in our legal system, which requires respect for the authority of the court.

• Non-compliance with orders can be classified as a civil contempt, when the purpose is to compel compliance with an order, or as a criminal contempt, when the purpose is to punish disobedience. As the courts have recognised, this distinction is uncertain and creates complexity. In the Commission’s view this distinction should not be maintained.

• Non-compliance with court orders and undertakings should be included in the proposed Act as a distinct category of conduct that can be dealt with as a contempt of court. This category should encompass both civil and criminal contempt.

• The proposed Act should require the court to consider the extent to which other mechanisms to ensure compliance are available; the impact of the non-compliance; and the attitude of the person when determining whether to deal with a person for contempt, and in fixing penalty. This requirement will protect against the overuse or misuse of contempt proceedings for non-compliance.

• The full range of penalties discussed in Chapter 5 should be available to the court for dealing with contempt by non-compliance with a court order or undertaking.

• The general contempt procedure discussed in Chapter 5 should also apply.

What is disobedience contempt and what is its purpose?

8.1 Disobedience contempt is the failure or refusal of a person to comply with a court order or an undertaking given to the court.^[1] For example, a person may be in contempt if they fail to pay money required by a court order or dispose of their assets in breach of a court order.^[2]

8.2 Non-compliance with orders is a common form of contempt and typically arises in civil proceedings.^[3] Disobedience contempt can also arise when a person fails to comply with an order made by the court in a criminal proceeding, such as a failure to comply with a suppression order.

8.3 As noted in the consultation paper, the law of disobedience contempt serves two interrelated purposes:

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

• punishing non-compliance with court orders and undertakings to safeguard the authority of the court and ensure public confidence that court orders cannot be disobeyed without consequence.^[4]

8.4 It is essential to ensure that people comply with orders and undertakings made to the court. This maintains the public’s confidence in the courts’ ability to resolve disputes and thereby upholds the rule of law.^[5]

8.5 As the Supreme Court of Victoria has stated:

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.^[6]

Should the court be able to deal with non-compliance as a contempt?

8.6 There are many ways for a party to enforce a court order or undertaking in a civil proceeding. For example, the Sheriff may be directed to seize property or land, or a court can strike out a defence in a civil proceeding where a defendant fails to comply with a procedural order. In addition, some legislation provides specific enforcement mechanisms or makes it an offence to breach an order.^[7]

8.7 Proceedings for disobedience contempt are usually commenced to enforce an order where there are no other effective means to do so.^[8]

8.8 The consultation paper asked whether courts need to retain a power to deal with a person for contempt where they have failed to comply with an order or undertaking.^[9]

Responses

8.9 Most stakeholders addressing this issue agreed that the courts should retain their contempt powers to deal with non-compliance with court orders.^[10]

8.10 The County Court of Victoria stated that the law of disobedience contempt ‘is critical to the court’s ability to ensure that orders are complied with and to give parties confidence in the legal system’.^[11]

8.11 The Supreme Court similarly submitted that disobedience contempt ‘remains an important option, and in some instances, the only option’ to enforce orders, which are the ‘means by which rights and laws are given ultimate effect’.^[12]

8.12 The Criminal Bar Association favoured retaining the concept of an offence for failure to comply to protect against disregard of the processes of the courts. It submitted that, while there were other ways to enforce compliance, these do not deal with the impact on the legal system of the failure to comply.^[13]

8.13 The Law Institute of Victoria (LIV) submitted that disobedience contempt should be replaced by a statutory regime of non-compliance proceedings. Only the person entitled to the benefit of the order should be able to commence civil compliance proceedings. The court should retain a power to commence proceedings, or after an aggrieved party has discontinued proceedings, continue proceedings where the disobedience constitutes a challenge to the court’s authority.^[14]

Commission’s conclusions: the court should be able to deal with non-compliance as a contempt

8.14 Non-compliance with court orders challenges the foundations of our legal system and undermines the proper administration of justice. However, this does not mean that non-compliance should routinely be dealt with as a contempt. In many cases, there may be other enforcement mechanisms which should be used before contempt. Contempt remains an exceptional power (see Chapter 3).

8.15 However, as the Supreme Court notes, there are not always effective alternatives for enforcement. Sometimes compliance may no longer be possible, such as where a person has already disposed of assets contrary to a court order.

8.16 Sometimes the circumstances of the breach may defy the authority of the court in a way which needs to be dealt with separately to the issue of compliance. For example, if a person publicly and defiantly disobeys a court order not to approach a person or place, the court needs the power to punish this defiance of its authority.

8.17 The courts must be able to sanction such non-compliance. The proposed Act should recognise ‘disobedience contempt’ as a distinct category of contempt, which should be redefined for clarity as ‘contempt by non-compliance with a court order or undertaking’. The proposed Act should provide that the court may deal with a person for contempt where they have not complied with a court order or undertaking given to the court.

Recommendation

58 The proposed Act should recognise ‘disobedience contempt’ as a distinct category of contempt and redefine it as ‘contempt by non-compliance with a court order or undertaking’.

The distinction between civil and criminal contempt

8.18 Under the common law disobedience contempt is classified as either civil or criminal contempt. The basis of the distinction is complex and uncertain.^[15] Nonetheless, the courts continue to make this distinction.^[16]

8.19 Often the distinction is explained by reference to the purpose of the proceeding. If the purpose is to coerce compliance with a court order or undertaking the contempt is classified as civil. If the purpose is to punish non-compliance the contempt is classified as criminal.^[17]

8.20 Historically this distinction had practical consequences, including the application of different procedures, burdens of proof and penalties. Over time, these differences have eroded.^[18] Today, the procedure, penalties and burden of proof are the same. The sole remaining difference is that a conviction can only be recorded for a criminal contempt.^[19]

8.21 Further, in determining whether non-compliance is dealt with as a criminal contempt, courts generally consider whether the defendant was deliberately defiant (‘contumacious’) in breaching the order.^[20]

8.22 The High Court has stated that the distinction between civil and criminal contempt is ‘illusory’.^[21] The distinction is often criticised because:

• It is not possible to separate the purpose of punishment from the purpose of compelling compliance.^[22]

• To the person affected, the result is punishment, whether it is imposed to punish or to compel compliance.^[23]

• There is always public interest in ensuring that people comply with court orders and undertakings, regardless of whether it serves private interests.^[24]

• A civil contempt proceeding can become a criminal contempt proceeding part-way through, which is procedurally unfair.^[25]

8.23 These difficulties with classifying disobedience contempt have led other law reform commissions to recommend that the distinction between civil and criminal contempt should not be maintained.^[26]

8.24 The consultation paper asked whether the distinction between civil and criminal contempt should be maintained.

Responses

8.25 With the exception of the Children’s Court,^[27] most stakeholders who addressed the issue supported abolishing the distinction between civil and criminal contempt.^[28] The Supreme Court stated:

The Court’s experience accords with the body of judicial commentary about the illusory and unhelpful nature of attempts to distinguish civil and criminal contempt. Formal abolition of the distinction would seem desirable.^[29]

8.26 Legal practitioners told the Commission that the distinction between civil and criminal contempt produces needless confusion.^[30]

8.27 However, stakeholders differed on the model for reforming the law if the distinction is removed.

Commission’s conclusions: remove the distinction between civil and criminal contempt

8.28 Whether contempt is defined as civil or criminal depends on whether the purpose of the sanction or remedy is to compel compliance or to punish non-compliance. This often depends on a determination being made about the circumstances of the breach and the intent and attitude of the defendant. A person may be dealt with for civil contempt because the level of defiance and overall seriousness do not warrant a finding of criminal contempt, even though compliance with the order is no longer possible and the proceeding can only have a punitive purpose.^[31]

8.29 The distinction has no clear conceptual foundation and leads to confusion about the purpose of the contempt power. The procedures and penalties for both types of contempt are the same. The distinction creates an illusion of a tiered system of contempt, which masks the fact that, as the High Court has said, ‘Punishment is punishment’.^[32]

8.30 Accordingly, the proposed Act should not distinguish between civil and criminal contempt.

Recommendation

59 The distinction between civil and criminal contempt should not be retained.

Consequences of removing the distinction

8.31 There are several possible approaches to reform consistent with the view that the distinction between civil and criminal contempt should not be retained. These include:

• abolishing civil contempt and replacing it with a statutory enforcement scheme

• replacing civil and criminal contempt by non-compliance with an ordinary criminal offence or offences

• retaining the courts’ power to deal with non-compliance with court orders and undertakings as a contempt, but treating all such contempts as criminal in nature, with appropriate procedural protections.

8.32 The Australian Law Reform Commission (ALRC) and the New Zealand Law Commission both recommended replacing civil contempt with a statutory civil enforcement scheme.^[33] The ALRC also recommended making it an ordinary criminal offence to wilfully fail or refuse to comply with an order of the court in such a way that ‘constitute(s) a flagrant challenge to the authority of the court’.^[34] The Law Reform Commission of Western Australia (WA Commission) also recommended a similar offence, and further recommended replacing the civil form of contempt with a less serious criminal offence.^[35]

Responses

8.33 Stakeholders differed on the model of reform. The LIV supported the ALRC’s proposed statutory non-compliance regime to replace civil contempt.^[36] The Criminal Bar Association preferred to retain an offence for failing to comply.^[37]

8.34 The County Court proposed that, although the distinction should be abolished, any proposed Act should make it possible to avoid a criminal finding of contempt or the consequences of a conviction. It suggested this could be done by applying the Sentencing Act 1991 (Vic) to contempt proceedings. This would mean that for less serious contempts courts could order diversion or find a charge proved but dismiss the case.^[38]

8.35 The Supreme Court supported abolishing the distinction but did not propose a specific model of reform.^[39] In consultations, some members of the Court identified two options:

• Only deliberately defiant non-compliance with court orders should be dealt with as contempt, with ordinary non-compliance dealt with under a statutory civil enforcement procedure, or through amendments to the Civil Procedure Act
2010 (Vic)^[40]

• All disobedience to court orders should be dealt with as criminal contempt, with wilfulness bearing on sentence only.^[41]

8.36 Professor David Rolph told the Commission that ‘a clear and rational framework for non-compliance’ is needed. Such statutory regimes provide effective mechanisms to ensure compliance without having to meet the thresholds for proving contempt.^[42]

8.37 Two experienced practitioners considered that contempt proceedings should be reserved for the worst cases of interference with the administration of justice and should reflect the criminal nature of the contempt.^[43]

Commission’s conclusions: retain the full scope of disobedience contempt

8.38 The purpose of abolishing the distinction between civil and criminal contempt is to remove confusion and complexity in the law.

8.39 As the Supreme Court has stated, non-compliance with orders directly threatens the very foundation of the administration of justice and threatens the rule of law.^[44] All non-compliance with court orders therefore interferes with the administration of justice.

8.40 The distinction between civil and criminal contempt reflects a different issue, which is the gravity of the risk that the non-compliance poses to the administration of justice. For example, some non-compliance will be too trivial for a court to deal with as a contempt. In other cases, it will be enough to find the charge proved, but not record a conviction. Occasionally, when there is deliberate or prolonged defiance of a court, the strongest sanctions may be warranted.

8.41 The assessment of the gravity of the risk to the administration of justice is qualitative and requires consideration of the relevant circumstances. The court should make this assessment when exercising its discretion to determine whether to deal with the conduct as a contempt and when determining penalty.

8.42 The clearest and most conceptually sound approach is to retain the full scope of disobedience contempt, recognise its criminal nature, and apply appropriate protections to every proceeding for non-compliance contempt.

8.43 This approach better reflects the nature of contempt. As discussed in Chapter 3, contempt is better characterised as a power of the courts to safeguard the administration of justice than as an ordinary criminal offence. It is consistent with this approach that the courts must retain the power to protect their authority and ensure compliance with their orders in any circumstances.

8.44 This power is moderated by the court’s discretion about when and how to punish for contempt. Although all non-compliance is an interference with the administration of justice, not all non-compliance should be dealt with as a contempt or punished. Courts may choose not to exercise their powers for trivial non-compliance, as already occurs in practice. Courts also have powers to dismiss proceedings brought by private parties if they are vexatious or an abuse of process.

8.45 Courts have broad discretion in determining penalty. They can decide not to impose a penalty or record a conviction. The Commission recommends further flexibility by applying relevant provisions of the Sentencing Act.

8.46 As discussed in the following paragraphs, there are other aspects of the existing law that also limit liability for non-compliance, which the Commission considers should be retained.

Dealing with a person for contempt by non-compliance

The test for liability

8.47 To establish disobedience contempt at common law, the following five elements must be proved beyond reasonable doubt:

• an order was made by the court or an undertaking given to the court

• the terms of the order or undertaking were clear, unambiguous, and capable of compliance

• in the case of an order of the court, it was served on the person or, if not, service was excused in the circumstances or dispensed with

• the person had knowledge of the terms of the order or undertaking, and

• the person breached the terms of the order or undertaking.^[45]

8.48 In addition, the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Civil Procedure Rules) provide that an order cannot be enforced by imprisonment or sequestration unless the order was served on the person together with a notice stating that the person is liable to imprisonment or to sequestration of property if they do not comply.^[46] This ensures that a person is aware of the consequences of non-compliance. The Civil Procedure Rules provide that the courts may waive this notice requirement.^[47] The courts have held this should only be done where it is clear the person was aware of the order and the consequences of breaching it.^[48] In practice, the courts have been reluctant to waive this safeguard.^[49]

8.49 Stakeholders addressing this issue did not identify any concerns with the elements of the common law test or the requirement that it be proved beyond reasonable doubt.

8.50 This test should be retained in the proposed Act to define when non-compliance with a court order can be dealt with as a contempt of court. The test includes essential safeguards, ensuring a person cannot be dealt with for contempt if the order or undertaking cannot be complied with, the terms of the order are unclear, or the person did not know about the order or undertaking.

Recommendation

60 The proposed Act should provide that a person may be dealt with by a court for contempt by non-compliance with a court order or undertaking where:

• an order was made by a court, or an undertaking was given to a court

• the terms of the order or undertaking were clear, unambiguous and capable of being complied with

• in the case of an order made by the court, the order was properly served on the person in accordance with the rules and/or that service was excused in the circumstances, or dispensed with pursuant to the rules of the court

• the person had knowledge of the terms of the order or undertaking, and

• the person breached the order or undertaking.

Other considerations

8.51 The common law contains other factors which the courts may consider when determining whether to exercise their contempt power in relation to non-compliance with an order or undertaking, and the penalty to impose. These factors are not part of the test of liability. They include:

• the availability of other enforcement mechanisms

• whether the behaviour is deliberately defiant or contumacious

• the level of risk posed to the administration of justice.

8.52 This section considers whether these factors should be included in the proposed Act and, if so, on what basis.

An option of last resort

8.53 At common law, the courts have held that contempt proceedings should only be commenced to enforce an order or undertaking where there are no other effective means to do so.^[50] New Zealand incorporated this limitation in the Contempt of Court Act 2019 (NZ).^[51]

8.54 Stakeholders who addressed this issue considered that disobedience contempt should only be available as a last resort or for the most serious cases.^[52] The LIV stated that the court should only institute or continue proceedings if the non-compliance constitutes a challenge to the court’s authority.^[53] The Supreme Court submitted that, for parties, ‘other means of enforcement are clearly to be preferred because they offer a tangible remedy’ but that contempt remains ‘an important remedy in the context of injunctive or mandatory orders’.^[54]

Commission’s conclusions: availability of other mechanisms

8.55 The Commission agrees that, in general, other enforcement mechanisms should be tried before commencing contempt proceedings. Contempt is an exceptional power used where other mechanisms are ineffective or have failed. Where other mechanisms remain available to enforce the order, there is less need to use the contempt power to vindicate the court’s authority.

8.56 However, although this is a sound principle, it is too restrictive to require other enforcement mechanisms be exhausted before contempt proceedings can be commenced. Such a requirement would restrict the powers of the court and would be futile where a person has displayed a clear intention not to comply with the order.

8.57 The proposed Act should require a court to consider the availability of other enforcement mechanisms when determining whether to deal with someone for non-compliance contempt. Where other enforcement mechanisms are available, the court should not be prevented from dealing with a person for contempt, but rather the availability of other mechanisms should be a factor the court considers in determining whether to exercise its discretion to deal with the contempt and in considering the penalty to impose.

Deliberate defiance

8.58 As with other forms of contempt, it is not necessary at common law to prove that a person intended to interfere with the administration of justice or breach the order. Instead, the law requires only that the person voluntarily committed the act that constituted the breach. The court may decide however, not to exercise its contempt powers if the conduct is casual, accidental or unintentional.^[55]

8.59 However, intention has traditionally been relevant in determining whether a contempt should be dealt with as a civil or criminal contempt, and the extent of the penalty to be imposed. Where a person acts contumaciously—that is, in deliberate defiance of the order—a contempt would be classified as criminal, and a conviction could be recorded.^[56]

8.60 As discussed in Chapter 4, the law of contempt does not generally require proof of a person’s intent to defy the order or interfere with the administration of justice. However, this departs from the standard framing of criminal offences. The Commission concluded in that chapter that the appropriate fault element should vary depending on the type of contempt.

Responses

8.61 Few stakeholders addressed the question of whether a person must intend to disobey an order. The LIV supported requiring that a party intended to disobey, or made no reasonable attempt to comply with, the order.^[57]

8.62 Professor Rolph told the Commission that there should be more guidance about the definition of ‘wilful and contumacious’ behaviour, which distinguishes criminal disobedience contempt from civil disobedience contempt. In his view, ‘contumacious’ was something more than intention and extended to considering the consequences of the interference. Professor Rolph suggested as one possibility distinguishing in statute between a person’s intent and the impact of their conduct on the administration of justice.^[58]

Commission’s conclusions: ‘deliberate defiance’ should remain a discretionary consideration

8.63 Before a person can be dealt with for contempt, the person must have knowledge of the terms of the order or undertaking, the terms must be clear, and the person must have voluntarily committed the act that breaches the order or undertaking. Knowledge of the order or undertaking and its terms places a positive obligation on the person to ensure that they comply. In these circumstances, and because of the importance in ensuring court orders are obeyed, the court should be able to deal with a person for contempt even though the person may not have intended to breach the order.

8.64 However, consistent with current law, the proposed Act should require a court to consider a person’s intention, and whether they were deliberately defiant, when deciding whether a failure to comply should be dealt with as contempt, and also when determining penalty.

8.65 The level of defiance and the seriousness of the conduct should also be relevant to this assessment. This includes the impact of the conduct on specific persons, or the community more generally. Conduct may be considered more serious if it affects or inconveniences members of the public, or wastes government resources.^[59]

8.66 The impact of the non-compliance on the persons affected, or on the community more broadly, should be considered by the court in deciding whether to deal with a breach as contempt and in determining a penalty.

Recommendation

61 The proposed Act should provide that in determining whether to exercise its discretion to deal with a person for contempt by non-compliance with a court order or undertaking, and in fixing the appropriate penalty, the court must consider:

• the extent to which other mechanisms to enforce the law are available

• the impact of the failure to comply with the order or undertaking on specific persons or the community more generally

• the attitude of the person, and whether they were deliberately defiant.

Risk of interference with the administration of justice

8.67 Proving contempt generally requires proof that the conduct had a tendency to interfere with the administration of justice. However, under common law, there is no express requirement to prove that a person’s non-compliance with an order or undertaking has a tendency to interfere with the administration of justice.^[60] A question arises as to whether the proposed Act should expressly require proof of this.

Commission’s conclusion: no need to expressly require a risk to the administration of justice

8.68 All failures to comply with court orders or undertakings, where a person knows of the order and voluntarily fails or refuses to comply, pose a risk to the administration of justice. As the Supreme Court stated, such non-compliance undermines the essence of a court’s authority, and threatens the rule of law.^[61] Accordingly, there is no need to expressly refer to this outcome in the test for liability.

The procedure for contempt by non-compliance

8.69 The consultation paper asked who should be able to commence proceedings for disobedience contempt.^[62] Private parties typically bring disobedience contempt applications for failures to comply with orders made in civil proceedings.^[63]

The role of private parties

8.70 Chapter 5 recommends a general procedure for bringing contempt proceedings, which should apply to this form of contempt.

8.71 Chapter 5 also discusses the role of private parties in bringing proceedings, which is especially relevant in non-compliance contempt. For the reasons outlined there, the Commission recommends that private parties continue to have the power to bring proceedings, as well as the courts on their own motion, the Attorney-General, and the Director of Public Prosecutions (in criminal proceedings).

8.72 There are sufficient protections to deal with any abuse of this power by private parties. These include the court’s role in ultimately deciding to exercise such jurisdiction, and its power to dismiss proceedings that are vexatious, an abuse of process, or brought for an extraneous purpose.

Who should hear the proceeding?

8.73 In Chapter 5, the Commission recommended that an application for contempt for conduct that interferes with a proceeding be heard by a different judicial officer to the officer who witnessed the conduct to avoid any risk of perceptions of partiality.

8.74 Applications for punishment for disobedience contempt are typically heard within the same proceeding by the judicial officer who made the order.

8.75 Where a person charged with contempt argues that, for example, the order was not made in clear terms, the same concern regarding partiality of the judicial officer who made the order could arise.

8.76 The WA Commission raised concerns regarding ‘the actuality and appearance of judicial neutrality’ in this context, proposing that an indictable offence for failure to comply with an order must be heard by a different judicial officer.^[64]

8.77 In consultations, members of the Supreme Court stated that, ideally, any enforcement proceedings should be heard by the judicial officer who made the original order because that officer would be familiar with the history of the proceeding. If there is a dispute about the meaning of the original order, then it may be preferable for a different judicial officer to decide the matter.^[65]

8.78 Accordingly, the Commission considers that a person charged with contempt for non-compliance with a court order or undertaking should have the right to have the matter heard by a different judicial officer.

Recommendation

62 The proposed Act should provide that a person who is to be dealt with for contempt by non-compliance with a court order or undertaking has the right to have the matter heard by a judicial officer who did not make the original order.

Penalties

8.79 The consultation paper asked what penalties should be available for disobedience contempt.^[66]

8.80 In Chapter 5, the Commission recommends that a range of penalties should be available for all forms of contempt, including fines, imprisonment and sequestration of property. The Commission also recommends that fines could accrue up to a set maximum and that a person could be discharged early from prison.

8.81 Varied sentencing options provide the court with flexibility. This is particularly important in the context of non-compliance contempt. If compliance with the order or undertaking remains possible, the court may choose a sanction directed towards compelling compliance, such as sequestration, or a fine that accrues pending compliance. The power of the court to order early discharge from a term of imprisonment and impose penalties directly on the officers of corporate bodies in certain circumstances^[67] can also compel compliance.

8.82 If the order or undertaking can no longer be complied with, the court may impose a penalty that reflects a punitive purpose, such as a fixed fine or term of imprisonment.

8.83 In Chapter 5, the Commission recommends that the proposed Act set penalties for contempt specifying both the maximum fines and terms of imprisonment to be imposed.

8.84 In relation to disobedience contempt, only one stakeholder specified a preferred maximum penalty, of two years imprisonment.^[68] During consultations, members of the Supreme Court told the Commission that the penalties for enforcement proceedings should be sufficient to deter parties from applying a cost–benefit analysis when determining whether to comply with an order.^[69]

8.85 The maximum penalty for breaching a court order or undertaking must be significant, particularly for bodies corporate. There are examples in other legislation for setting penalty levels to discourage bodies corporate from deciding that there would be more financial benefit in not complying with the law.^[70]

8.86 The Commission considers that this can be achieved in relation to bodies corporate by setting a maximum penalty that is the greater of:

• 3000 penalty units

• if the court can determine the value of the benefit obtained as a consequence of the non-compliance by the body corporate (and any related bodies corporate), three times the value of the benefit

• if the court cannot determine the value of the benefit as a consequence of the non-compliance by the body corporate (and any related bodies corporate), 10 per cent of the annual turnover of the body corporate in the year the offending occurred.^[71]

8.87 The Commission considers that an appropriate maximum term of imprisonment for non-compliance with an order or undertaking should be five years for an individual, with an equivalent fine.^[72]

Recommendations

63 The proposed Act should provide that the maximum penalty for contempt by non-compliance with a court order or undertaking for an individual is five years imprisonment and/or a fine of 600 penalty units.

64 The proposed Act should provide that the maximum penalty for contempt by non-compliance with a court order or undertaking for a body corporate is:

• 3000 penalty units, or

• if the court can determine the value of the benefit obtained because of the non-compliance by the body corporate (and any related bodies corporate), three times the value of the benefit, or

• if the court cannot determine the value of the benefit because of the non-compliance by the body corporate (and any related bodies corporate), 10 per cent of the annual turnover of the body corporate in the year the offending occurred.

Enforcing court orders—a broader issue

8.88 As discussed in the consultation paper, there are other ways a party may enforce a court order or an undertaking. For example, the Sheriff may be directed to seize and sell property to satisfy a judgment debt,^[73] or a court can dismiss a claim or strike out a defence during a civil proceeding.^[74] Some Acts create their own mechanisms or offences.^[75]

8.89 However, as Professor Rolph told the Commission, there is no uniform or principled approach to other enforcement mechanisms and their relationship with disobedience contempt. This causes unnecessary complexity and underlies the need for reform.^[76]

8.90 One area of complexity is the relationship between Order 75 of the Civil Procedure Rules, which regulates contempt, and Order 66, which provides for the enforcement of orders. Order 66 does not refer to contempt but sets out when an order may be enforced by committal. Case law indicates that an application for committal for failure to comply with an order is a contempt application, which must meet the requirements of both Order 66 and Order 75.^[77] Further statutory guidance would be beneficial on how Order 66 and Order 75 are intended to interact.^[78]

8.91 The Commission also heard that there are gaps in enforcement. In particular, as discussed below, the Victorian Civil and Administrative Tribunal (VCAT) and the Children’s Court told the Commission they face significant challenges with enforcing their orders.

Deficiencies with existing enforcement mechanisms

Children’s Court’s orders

8.92 The Children’s Court of Victoria, which hears applications for the protection of children and young persons at risk, told the Commission it does not have clear statutory powers to enforce its own orders or remedy non-compliance.^[79]

8.93 This can have significant consequences. When the state fails to comply with contact and access conditions, the consequences for children are profound.^[80] The Children’s Court observed that, while parents have a powerful incentive to comply with orders, these incentives do not apply to the state. Nor are measures used in other civil contexts, such as dismissing a case, appropriate when the case concerns child protection.

8.94 The Children’s Court stated that it should be given clear and broader enforcement powers. It prefers a statutory procedure for civil enforcement of court orders and undertakings, in which proceedings could be commenced by a magistrate or the President of the Children’s Court. Failure to comply with an order should be proved on the balance of probabilities, and could be dealt with by undertakings, imposing monetary penalties, declaratory or injunctive relief, or similar remedies. While these powers would be used rarely, they would have an effect in compelling compliance.^[81]

Enforcement of VCAT orders

8.95 VCAT submitted that an ‘issue for the Tribunal is the inability to enforce its own orders.’^[82] Orders must be enforced through the courts, a process that is difficult to navigate, expensive, and may not secure the desired outcome. Parties find it difficult to understand why VCAT cannot enforce its own orders.^[83]

8.96 VCAT has a broad contempt power which replicates the contempt jurisdiction of the Supreme Court,^[84] and can impose significant penalties for contempt.^[85] However, making a contempt application is slow, complex, costly, and the process is unclear.^[86] If the Tribunal fines a person for contempt, the order must be enforced through the Supreme Court.^[87] While a finding of contempt may lead to fine or imprisonment, this may not result in compliance with the original order, and enforcement action will still need to be taken in the relevant court.^[88]

8.97 The Victorian Civil and Administrative Tribunal Act 1998 (Vic) makes it an offence not to comply with a non-monetary order of the Tribunal.^[89] The Commission was told that it is unclear how this provision interacts with the Tribunal’s general contempt power.^[90]

8.98 VCAT submitted to the Commission that there should be clearer, simpler and cost-effective processes for enforcing Tribunal orders which would reduce the need for parties to resort to contempt applications.^[91] Consideration should be given to introducing a new statutory framework for the exercise of VCAT’s disobedience contempt powers.^[92]

Commission’s conclusions: a review of civil enforcement mechanisms

8.99 It is beyond the scope of the Commission’s review to consider civil enforcement mechanisms for Victoria’s civil law jurisdictions.

8.100 However, this is an issue requiring further consideration. The Commission recommends the Victorian Government conduct a review of the adequacy and effectiveness of the mechanisms for enforcing orders in civil proceedings more generally.

8.101 The Commission also notes that, if the Commission’s recommendations are adopted, order 66 of the Civil Procedure Rules may need to be amended.

Recommendation

65 The Victorian Government should conduct a review of the adequacy and effectiveness of the enforcement of orders in civil proceedings, including proceedings in the Children’s Court and the Victorian Civil and Administrative Tribunal.

1. An undertaking is a promise given to the court. Where a person has given an undertaking, they are required to comply with it as if it is an order of the court.

   ↑

2. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 71 [6.8]–[6.12].

   ↑

3. As discussed in Chapter 2, the Supreme Court has inherent jurisdiction to punish contempt of court, which includes contempt by non-compliance with its orders. The County Court and Coroners Court have no inherent jurisdiction to deal with non-compliance with court orders or undertaking by punishing for contempt, but this power is conferred on them by statute: County Court Act 1958 (Vic) ss 53–4; Coroners Act 2008 (Vic) s 103. The Magistrates’ Court and Children’s Court have limited statutory enforcement powers, which are discussed in Chapter 6.

   ↑

4. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 77 [6.40].

   ↑

5. Pelechowski v Registrar, Court of Appeal [1999] HCA 19 [149] (Kirby J) (in dissent on the substantive issue), (1999) 198 CLR 435.

   ↑

6. Law Institute of Victoria v Nagle [2005] VSC 47 [5] (Gillard J).

   ↑

7. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 75–7 [6.34]–[6.36].

   ↑

8. Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [93], citing in support Danchevsky v Danchevsky [1975] Fam 17, 22–3; Ansah v Ansah (1977) Fam LR 138, 144, [1977] 2 All ER 638.

   ↑

9. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 80, Question 25.

   ↑

10. Submissions 7 (The Victorian Civil and Administrative Tribunal), 14 (Children’s Court of Victoria), 17 (Dr Denis Muller), 29 (Supreme Court of Victoria), 31 (County Court of Victoria). As discussed below, the Law Institute of Victoria proposed a statutory form of non-compliance proceedings: Submission 22 (Law Institute of Victoria). Professor David Rolph told the Commission that disobedience contempt requires reform and restatement in statute to provide a ‘clear and rational framework for non-compliance’: Consultation 12 (Professor David Rolph).

    ↑

11. Submission 31 (County Court of Victoria).

    ↑

12. Submission 29 (Supreme Court of Victoria).

    ↑

13. Submission 20 (Criminal Bar Association).

    ↑

14. Submission 22 (Law Institute of Victoria).

    ↑

15. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 74–5 [6.26]–[6.32]. See generally Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 [144]–[190], (2014) 47 VR 527.

    ↑

16. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 [179].

    ↑

17. See for further discussion Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 74 [6.26]–[6.32].

    ↑

18. Witham v Holloway (1995) 183 CLR 525, 539–41; Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106.

    ↑

19. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 [173]–[177].

    ↑

20. Ibid [144]–[156].

    ↑

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

    ↑

22. Ibid 533–4.

    ↑

23. Ibid 534.

    ↑

24. Ibid 532–3 .

    ↑

25. Seymour v Migration Agents Registration Authority [2006] FCA 965 [102]. See also Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 [279]–[298].

    ↑

26. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 100–1 [5.60]–[5.69] (which recommended replacing the common law of contempt with a new statutory enforcement procedure); Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) 94–5 (which recommended abolishing civil contempt and treating all disobedience contempt as a criminal offence); The Law Reform Commission, Contempt (Report No 35, December 1987) lxxxiv [64], 329–30 [568] (which recommended retaining contempt only in cases of a flagrant challenge to the court’s authority).

    ↑

27. Submission 14 (Children’s Court of Victoria).

    ↑

28. Submissions 29 (Supreme Court of Victoria), 31 (County Court of Victoria); Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

    ↑

29. Submission 29 (Supreme Court of Victoria).

    ↑

30. Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

    ↑

31. See, eg, Victoria International Container Terminal Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2018] VSC 794 [10].

    ↑

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

    ↑

33. The Law Reform Commission, Contempt (Report No 35, December 1987) ) lxxxiv [64]–[66], 329–30 [568]; Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, May 2017) 100–1 [5.60]–[5.69]. This is reflected in Contempt of Court Act 2019 (NZ) ss 16–20.

    ↑

34. The Law Reform Commission, Contempt (Report No 35, December 1987) 326 [561].

    ↑

35. Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) Recommendation 48. Western Australia also provides a statutory framework for enforcement of court orders in civil proceedings: Civil Judgments Enforcement Act 2004 (WA).

    ↑

36. Submission 22 (Law Institute of Victoria).

    ↑

37. Submission 20 (Criminal Bar Association).

    ↑

38. Submission 31 (County Court of Victoria).

    ↑

39. Submission 29 (Supreme Court of Victoria).

    ↑

40. See, eg, Civil Procedure Act 2010 (Vic) pt 2.4, ss 46, 51, 56, 65C.

    ↑

41. Consultation 26 (Supreme Court of Victoria).

    ↑

42. Consultation 12 (Professor David Rolph).

    ↑

43. Consultation 13 (Fiona K Forsyth QC, John Langmead QC).

    ↑

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

    ↑

45. Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275 [8]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [31].

    ↑

46. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.10(3).

    ↑

47. Ibid r 66.10(6).

    ↑

48. Morgan v State of Victoria [2008] VSCA 267 [132], (2008) VR 237.

    ↑

49. See, eg, Morgan v State of Victoria [2008] VSCA 267 [132]; Alpass v Hession [2017] VSC 748 [47]–[55].

    ↑

50. Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [93], citing in support Danchevsky v Danchevsky [1975] Fam 17, 22–3; Ansah v Ansah (1977) Fam LR 138, 144. See also Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193 [140]–[145]; Morgan v State of Victoria [2008] VSCA 267 [145].

    ↑

51. Contempt of Court Act 2019 (NZ) s 16(3)(a).

    ↑

52. Consultations 9 (Victorian Government Solicitor’s Office), 13 (Fiona K Forsyth QC, John Langmead QC), 17 (Victorian Bar).

    ↑

53. Submission 22 (Law Institute of Victoria).

    ↑

54. Submission 29 (Supreme Court of Victoria).

    ↑

55. Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [34], [51]; Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 [138]–[142].

    ↑

56. Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 [173], [275]–[276].

    ↑

57. Submission 22 (Law Institute of Victoria). This reflects the recommendation made by the ALRC: The Law Reform Commission, Contempt (Report No 35, December 1987) 308–9 [523].

    ↑

58. Consultation 12 (Professor David Rolph).

    ↑

59. See, eg, Victoria International Container Terminal Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2018] VSC 794 [10].

    ↑

60. The common law test has been variously described as a ‘real’ risk or a ‘tendency’. As discussed in Chapter 4, the Commission has recommended that this test is more clearly expressed in terms of a ‘substantial risk’.

    ↑

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

    ↑

62. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 80, Question 26(b)(i).

    ↑

63. Ibid 73 [6.22]–[6.24].

    ↑

64. Law Reform Commission of Western Australia, Report on Review of the Law of Contempt (Project No 93, June 2003) 100–1.

    ↑

65. Consultation 26 (Supreme Court of Victoria).

    ↑

66. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 80, Question 26(b)(iii).

    ↑

67. Order 66 of the Civil Procedure Rules provides that a judgment may be enforced by imposing penalties on an officer of the body corporate. A director who has had notice of a court order will be under a duty to take reasonable steps to ensure it is obeyed, and if they wilfully fail to do so, may be directly liable for contempt. See, eg, Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556 [33].

    ↑

68. Submission 6 (Professors Mark Pearson, Patrick Keyzer, Anne Wallace and Associate Professor Jane Johnston).

    ↑

69. Consultation 26 (Supreme Court of Victoria).

    ↑

70. See, eg, Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’)

    ↑

71. This replicates the scheme for calculating maximum penalties under the Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’) s 224(3A).

    ↑

72. See Appendix J for an illustrative list of comparative offences and penalties and Appendix G for an illustrative list of sentences imposed in disobedience contempt cases. See also Annexure A in Moira Shire Council v Sidebottom Group Pty Ltd (No 3) [2018] VSC 556, for a summary of penalties imposed by the court for contempt for breach of court orders, which range from three months to two years imprisonment.

    ↑

73. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 66.02(1)(a), ord 69.

    ↑

74. See, eg, Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 24.02(1).

    ↑

75. See Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 76–7 [6.34]–[6.36].

    ↑

76. Consultation 12 (Professor David Rolph).

    ↑

77. See, eg, Morgan v State of Victoria [2008] VSCA 267 [107]; cf in New South Wales, Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193 [124]–[125].

    ↑

78. Order 66 also sets out that a remedy to enforce an order is sequestration. Order 76 sets out the process by which sequestration can be effected. Sequestration to enforce an order appears to be distinct from contempt. The interrelationship between orders 66, 75 and 76 would also benefit from clarification.

    ↑

79. Submission 14 (Children’s Court of Victoria). While in general the powers of the Magistrates’ Court are conferred on the Children’s Court, the Children’s Court told the Commission that it is not apparent that the enforcement power available under section 135 of the Magistrates’ Court Act applies in the Children’s Court: Submission 14 (Children’s Court of Victoria).

    ↑

80. Submission 14 (Children’s Court of Victoria); Consultation 15 (Children’s Court of Victoria).

    ↑

81. Submission 14 (Children’s Court of Victoria); Consultation 15 (Children’s Court of Victoria).

    ↑

82. Submission 7 (The Victorian Civil and Administrative Tribunal.

    ↑

83. Ibid.

    ↑

84. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137. A new provision to be inserted in the Act will confirm that VCAT’s contempt powers apply in relation to a failure to comply with an order: Justice Legislation Amendment (Access to Justice) Act 2018 (Vic) s 70(1) (which has not yet commenced).

    ↑

85. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137(5). VCAT can punish a contempt by imprisoning a person for up to five years and/or imposing a fine of up to 1000 penalty units for a natural person or 5000 penalty units for a body corporate.

    ↑

86. Submission 7 (The Victorian Civil and Administrative Tribunal); Consultation 22 (The Victorian Civil and Administrative Tribunal).

    ↑

87. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 137(9).

    ↑

88. Submission 7 (The Victorian Civil and Administrative Tribunal).

    ↑

89. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 133.

    ↑

90. Consultation 22 (The Victorian Civil and Administrative Tribunal).

    ↑

91. Submission 7 (The Victorian Civil and Administrative Tribunal).

    ↑

92. Ibid. As VCAT’s contempt powers reflect the powers of the Supreme Court, the Commission’s recommendations regarding reform of the Supreme Court’s powers will affect VCAT unless otherwise stipulated: see Victorian Civil and Administrative Tribunal Act 1998 (Vic)
    
    s 137(1)(f).

    ↑