Chapter 7
The future of civil contempt

Reform options

7.70In light of the Supreme Court’s decision in Siemer and the calls for reform in our most closely allied common law jurisdictions, it seems timely to also ask whether any useful distinction remains between civil and criminal contempt in New Zealand law. It may be time to look at abolishing civil contempt altogether.

Should civil contempt be abolished and all contempt be criminal?

7.71The Supreme Court has said that Bill of Rights Act protections apply to all defendants facing allegations of contempt, whether civil or criminal.395 This rightly acknowledges that the risk of the loss of liberty is a serious matter. We suggest that it might now be time to bring an end to the use of civil contempt as an enforcement mechanism to remedy private wrongs. The sanction of imprisonment is inherently punitive in nature, even if it is being imposed in order to coerce compliance rather than to punish. We suggest that committing a person to prison is now out of place in a modern civil enforcement regime. As a matter of principle, the prerogative to seek this type of punitive sanction should rest with the state and not with private parties involved in litigation. The sanction of imprisonment should only be available under the criminal law and not as a civil enforcement tool.

7.72One option for reform, therefore, would be to make all contempt criminal and completely separate civil enforcement from contempt. Under this option, contempt would be removed from the current arsenal of civil enforcement measures and would sit squarely within the ambit of criminal law. In summary, we are suggesting that a clear line be drawn between contempt and civil enforcement.

Civil enforcement

7.73Civil enforcement would be the mechanism for enforcing the private interest of the party in an order. Civil enforcement would remain in the hands of litigants and be available to enforce court orders and protect litigants’ private interests in judgments and court orders. However, the courts would not have jurisdiction to commit a person to prison or impose fines as part of that regime to enforce orders in civil proceedings. Arrest orders would still need to be available to deal with situations where a defendant needs to be arrested and brought before the court for the various purposes still remaining within civil enforcement. The current regime for the civil enforcement of court judgments and orders would otherwise be retained largely as it is. It would also be very helpful to rid civil enforcement mechanisms of the language of contempt.

Sequestration orders

7.74At this preliminary stage, we favour abolishing the remedy of sequestration altogether. As discussed earlier, this is an ancient remedy originating in the Courts of Chancery in Elizabethan times. Sequestration is generally considered to be draconian in nature and available only as a last resort. We consider that there are now sufficient better modern alternatives available in the enforcement arsenal to dispense with sequestration altogether.

Criminal offence would replace criminal contempt

7.75Under this option, contempt would be solely a matter for the criminal law. It would have the function of punishing breaches of court orders where they are of a nature that so threatens the administration of justice that punishment is required to protect the public interest in upholding the administration of justice. Contempt would be prosecuted by the state and not by the litigants.

7.76We have proposed in earlier chapters of this Issues Paper options for replacing different forms of common law contempt with statutory offences. If we also take that approach in relation to breaches of court orders that amount to contempt, we would have a criminal offence to cover breaches of court orders that are of such a serious nature that they threaten the administration of justice. We are proposing a statutory offence that would be more akin to what is currently criminal contempt. In other words, the threshold for the offence should be set so that it would only catch serious breaches and not all deliberate breaches.

7.77The offence would need to be carefully crafted. As well as there being a requirement to prove the existence of a clear and binding order that the defendant had knowledge of and that the defendant intentionally acted in breach of the terms of the order, there would also need to be an element of public defiance of the court’s process in a way calculated to lessen respect for the courts or some other way that the defendant’s actions breaching the order were of a nature that eroded or undermined the administration of justice. Currently, the non-payment of money in breach of a court order or judgment cannot be enforced by contempt. We think this should similarly be excluded from any offence that replaces the more serious types of breach.

Preserving the interests of the parties under court orders

7.78One issue that is raised by the proposal to create an offence is whether the litigant who has a beneficial interest in the court order should have any particular rights in relation to a prosecution under the proposed offence. Currently, the beneficiary of the original court order is able to bring an action for civil or criminal contempt. Under the approach we are suggesting, that ability will of course be removed. While that party will no longer be able to seek committal to prison, they will still have available to them all the other existing civil enforcement tools. Our criminal justice system permits private prosecutions, and there is probably no reason why that default position should not apply to this offence also. We are interested in feedback from submitters on whether they think that the approach we have outlined will be sufficient to protect the position of the successful litigant under the original order.

7.79Another issue concerning the litigant entitled to the benefit under the court order is whether a portion of any fine imposed by the court for the offence should be made payable to that person as compensation. Section 32 of the Sentencing Act 2002 also provides for a sentence of reparation where a party has suffered loss or damage to property. We would again be interested in comments from submitters on whether a portion of the fine should be payable to a party entitled to the benefit under the order, as compensation, and whether a sentence of reparation should also be available.

Corporate defendants
7.80Rather than simply have a higher level of fine for corporate defendants, we could consider whether liability should not also be imposed on the directors. Currently, where a judgment or order has been made against a corporate body, including those incorporated under the Companies Act 1955, it can be enforced by an order of committal for contempt against the directors or other officers of the corporation.396 Would it perhaps be appropriate to reflect that position in the new offence provision?
Jurisdiction

7.81Finally, an important issue to also consider is whether any new offence should simply be a category 2, non-electable offence, under the Criminal Procedure Act and consequently prosecuted and tried in the District Court or whether this offence should be a special case that could be tried summarily in the High Court. This issue is considered further in the next chapter.

Civil contempt codified?Top

7.82An alternative option that might also be considered, particularly if it was felt that simply abolishing civil contempt will leave some litigants with insufficient civil remedies, is to provide, in statutory form, a power for the courts to imprison a litigant as a last resort civil enforcement remedy. A statutory provision that allowed for the coercive use of imprisonment in civil proceedings would effectively be a codification of civil contempt.

7.83At this stage, we consider that there are probably adequate civil enforcement mechanisms, without such a power, to address almost all of the situations that may arise where court orders are not complied with. However, there may occasionally be situations where there would not otherwise be an adequate alternative remedy. If such an option was favoured, we would want to see all the appropriate Bill of Rights Act protections applied.

7.84We would also wish to see the bar for triggering the power set at a high level so the court would have to be satisfied that all other methods of enforcing the order have either been tried already or are inappropriate in the situation.

Questions

Q19 Do you agree that all contempt should now be criminal and that civil contempt should be abolished?
Q20 What comments do you have on the proposed option in relation to civil enforcement? Should sequestration orders be abolished altogether?
Q21 What comments do you have on the proposed statutory offence?
Q22 ‚ÄčIs it necessary for the courts to retain a power to imprison a litigant as a last resort to coerce compliance with a court order? What restrictions should be placed on such a power?

395Siemer v Solicitor-General, above n 297.
396Laws of New Zealand, above n 299, at [54].