Chapter 7
The future of civil contempt

Introduction

7.1Contempt of court was traditionally classified as either criminal or civil in nature. Under the traditional dichotomy, criminal contempt is viewed as punitive because it is concerned with actions or words that obstruct or interfere with the public interest in the administration of justice, while civil contempt is seen as primarily remedial in nature and concerned with compelling compliance with a court’s order through the threat of punitive sanctions.

7.2Civil contempt has become a complex hybrid combining a civil application procedure, the criminal standard of proof and the threat, and occasionally the imposition, of punitive sanctions. In civil contempt proceedings, the dual purposes of coercing compliance for the benefit of a private party and the public interest in maintaining and upholding judicial authority are “inextricably intermixed”.296
7.3The Supreme Court’s 2010 decision in Siemer v Solicitor-General (Siemer) raises questions over the validity of continuing to distinguish civil from criminal contempt simply because the threat of imprisonment in civil contempt is primarily intended to coerce compliance with a court order rather than to punish.297 The Supreme Court said, where a person is found to be in contempt of court, whether the contempt is one categorised as criminal or civil, that determination stigmatises the person, and the effect of a finding of contempt is equivalent to that resulting from conviction on a charge of committing a statutory crime.298 The Court held that all the criminal law protections of the New Zealand Bill of Rights Act 1990 (Bill of Rights) will apply where any person is facing the risk of imprisonment for civil, as well as criminal, contempt.

7.4There is little now to separate civil from criminal contempt in New Zealand law. In this chapter, we examine the development of civil contempt and consider the implications of the Supreme Court’s decision in Siemer. It may be time for New Zealand to abolish civil contempt altogether and make all contempt of court criminal.

296Lord Justice Salmon first used this description in Jennison v Barker [1972] 2 QB 52.
297Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [57].
298Siemer v Solicitor-General, above n 297, at [15].