Chapter 7
The future of civil contempt

What is civil contempt?

Disobeying a court order or judgment

7.5It is a civil contempt of court for anyone to refuse or neglect to do an act required by a judgment or order of the court (other than the payment of money to the other party) within the time specified in the judgment or order. It is similarly contempt to disobey a judgment or order requiring a person to desist or abstain from doing something.299 Civil contempt is not available to enforce monetary awards and the non-payment of money in breach of a judgment. Acting in breach of an undertaking given to the court is also contempt of court.300

Nature of civil contemptTop

7.6Civil contempt has its origins in the Court of Chancery. Originally, the court treated any disobedience of an order sealed by the Lord Chancellor as an affront to or contempt of the monarch.301 Later, by the 19th century, civil contempt had become simply a method for executing the judgments of the court in favour of a successful party. Imprisonment for contempt or the threat of it was used as an effective process to compel or coerce performance.302
7.7The unique feature of civil contempt is that wrongs of a private nature can be remedied by imprisonment because those wrongs also interfere with the due process of justice.303 However, as has been noted by the courts on numerous occasions in recent times, the validity of the traditional distinction between civil and criminal contempt is highly questionable. Earlier this year, in Solicitor-General v Krieger, Panckhurst J summarised the illusory nature of the traditional distinction:304

[T]he validity of this distinction has been doubted in many jurisdictions. A true dichotomy does not exist. Civil contempt, in common with criminal contempt, is similarly focused upon the due administration of justice. The remedial punishment for a civil contempt will benefit a litigant, but the Court intervenes in direct response to the disobedience of its order. Hence, civil contempt vindicates both the right of the successful litigant and equally the authority of the Court. As Salmon LJ put it, the two objects are inextricably intermixed.

7.8The traditional distinction between civil and criminal contempt overlooks the underlying rationale behind every exercise of the contempt power, namely that of upholding and protecting the administration of justice. Even if civil contempt does have a coercive element, it is also punitive and thus shares the attributes normally associated with criminal contempt.305 It is only because the disobedience of the courts’ order interferes with the fair administration of justice that it is contempt and punishable by imprisonment in the same way as criminal contempt.306 McGrath J said in Siemer:307

Effective administration of justice under our constitution requires that the orders of the courts are obeyed unless properly challenged or set aside. Public confidence in the administration of the law, also necessary for its effective administration, requires that there is a strong expectation that those who ignore court orders are quickly brought to account.

Sources of jurisdictionTop

7.9Civil contempt comes within the High Court’s inherent common law jurisdiction. However, the practice and procedure for issuing a writ of arrest, committing a person for contempt of court or sequestering property is now prescribed in the High Court Rules.308 To the extent that these matters are regulated by the Rules, the court will not exercise its inherent jurisdiction in a manner that is contrary to the relevant Rules.309

High Court Rules

7.10The High Court Rules, made under section 51 of the Judicature Act 1908, regulate the practice and procedure of all civil litigation in the High Court.

7.11Briefly, in the area of civil contempt, the High Court Rules provide that the court may issue a writ of arrest310 and make an order committing a person to prison for contempt of court311 where a court order (excluding an order requiring the payment of money) has been breached or where an undertaking has been breached.312 The rules provide that the term of imprisonment is for such period as the court thinks necessary and is allowed by law.313 ​The court may alternatively impose a fine for contempt.
7.12Rule 17.84(1) expressly excludes an order to pay a sum of money. No writ of arrest may be issued in respect of non-compliance with an order that amounts in substance to the payment of a sum of money such as a decree for specific performance of a contract where performance involves payment of money.314 An order to pay money into court rather than to a party can probably also be enforced by way of a writ of arrest because it is arguably injunctive in nature and prevents the party disposing of funds in dispute.
7.13A sequestration order may be issued against the property of a person who is in contempt of court by refusing or neglecting to obey a judgment or order of the court.315 A sequestration order authorises and requires a person appointed by the court as the sequestrator to take possession of all the real and personal property of the party against whom it is directed.316
7.14The rules also provide a power for the court to commit a party to prison for wilfully failing to comply with an interlocutory order317 or for wilfully failing to comply with an order for discovery or for the production or inspection of documents.318 The rules also address some circumstances in which a person who is not a party to the proceedings may be committed for contempt of court for wilfully failing to comply with an order for discovery.319

Inherent common law jurisdiction

7.15The court’s powers arising out of inherent jurisdiction are wider than those contained in the High Court Rules. McGechan on Procedure says that “[t]he inherent jurisdiction permeates all proceedings and is able to fill any gaps left by the rules”.320 The inherent jurisdiction can be invoked, for example, in response to the actions of persons who are not themselves actual litigants in the matter before the court.321 Possible sanctions at common law include imprisonment, fines or sequestration of property. The court may also impose costs or strike out proceedings for contempt.

District Courts Act – civil contempt

7.16The jurisdiction of the District Courts is limited to that conferred on them by legislation. District Courts and other courts created by statute do not have inherent jurisdiction. The District Courts Act 1947 conferred on District Courts and on Family Courts and Environment Courts, which also partly source their jurisdiction from that Act, jurisdiction to enforce some orders by committal for contempt.322 District Courts do not have jurisdiction to issue sequestration orders.

7.17Section 79(2) of the District Courts Act provides that:

Any judgment or order in the nature of an injunction, and any judgment or order within the competence of a District Court which, if it were given or made in the High Court, could in that court be enforced by writ of arrest, may be enforced, by order or warrant of a District Court Judge, by committal for a term not exceeding 3 months:

provided that an order for the recovery of land shall not be enforceable by committal.

Proving the elements of civil contemptTop

7.18There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove, to the criminal standard of beyond reasonable doubt, that:323
(a) the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;
(b) the defendant had knowledge of or proper notice of the terms of the order, normally as the result of personal service;
(c) the defendant has acted in breach of the terms of the order; and
(d) the defendant’s conduct was deliberate.

Criminal standard of proof

7.19Although the proceedings are civil in nature, it is well established that an applicant must prove the elements beyond reasonable doubt. The fact that the liberty of the defendant could be affected means that the standard of proof is the criminal standard of beyond a reasonable doubt.324 The applicant must prove all the elements to the higher standard of beyond reasonable doubt to establish contempt of court.325

Clear and unambiguous terms

7.20The terms of the order, injunction or undertaking must be clear and unambiguous and must be binding on the defendant. This may be relatively straightforward to determine in many situations. However, in some contexts, particularly in respect of undertakings, there may be more scope for uncertainty. The position is that an undertaking given to the court by a person in pending proceedings, on the face of which the court sanctions a particular course of action, has the same force as an injunction, and a breach of it can therefore also be contempt of court.326 The court, when considering what the terms of an undertaking are, must read them against the relevant background and give them their ordinary meaning.327

Notice of the terms

7.21The applicant must have had notice of the terms of the order or injunction. As a general rule, an order in the nature of an injunction will not be enforced unless a copy of the order has been served personally on the defendant in question. Personal service may not be required where the party against whom the order is made is already aware of the order. In the case of an order requiring a person to do an act, the order must be served before the expiration of the time within which the act is required to be done.328
7.22The courts will not hold a person in contempt unless satisfied that the order and notice were properly served.329

Breach of the terms

7.23Whether or not the terms of an undertaking, injunction or other similar order were breached may be closely linked to how the terms of the order or undertaking are interpreted.330

Mental element

7.24It is incumbent on the applicant to prove that the defendant’s conduct was deliberate in the sense that he or she deliberately or wilfully acted in a manner that breached the order. There was historically some uncertainty as to whether the mental element required proving also that the person knew that their actions breached the order. The position was clarified by the Court of Appeal decision in Siemer v Stiassny. The Court held that, to prove contempt of court, it was not necessary to establish that a defendant knew he or she was breaching an injunction. It was, instead, sufficient to show that the relevant actions were deliberate.331 The Court acknowledged that there was some authority that seemed to go the other way but that the weight of authority favoured the view they had taken.332 ​The Court said that a bona fide breach of an order, which resulted from erroneous legal advice as to the scope of the order, is nonetheless a contempt of court. Deliberate disobedience of the court order is not necessary, and unintentional disobedience may still amount to contempt.

Imposition of sanctions

7.25However, whenever contempt is established, whether it is criminal or civil, the imposition of any sanction is a matter within the discretion of the court. An important question for the court to consider is the extent of the contempt and the motive with which the defendant was acting. A further question is the degree of prejudice suffered by the innocent party.333
7.26The power to imprison for civil contempt is one to be exercised with great care.334 The court will not order committal to prison where the contempt is of a minor or technical nature. An order committing a person to prison for contempt is to be adopted only as a last resort.335 Accidental or unintentional disobedience of the court is not enough to justify either sequestration or imprisonment.336
7.27So, although contempt may be committed in the absence of intentional disobedience of the court by the defendant, the punitive measures like imprisonment or sequestration will not be ordered unless the contempt involves a degree of fault or misconduct.337
Sequestration orders
7.28The writ of sequestration has its origins in the Courts of Chancery and was introduced in the reign of Elizabeth I.338 As Chitty J said in Pratt v Inman: “Sequestration unquestionably was and is a process of contempt”.339 It is available only where the person against whom it is sought to be issued is in contempt of court through having wilfully disobeyed its order.340 In England, the Committee on the Enforcement of Judgment Debts, reporting in 1969, characterised sequestration as more akin to punishment than to execution and concluded that the justification for the remedy lay in the need for coercive powers to deal with contempt of court.341
7.29In Morris v Douglas, Paterson J explained the nature and effect of a sequestration order:342

It is generally considered to be a writ of last resort and it is coercive in its function rather than punitive. It is available only where the person against whom it is sought to be issued is in contempt of Court through having wilfully disobeyed its order. If the writ does issue, it temporarily places property of the contemnor into the hands of the sequestrators and denies him the right to enjoy or dispose of the property until a further order of the Court. If he purges his contempt, the sequestration order is lifted. Although it is said to be more coercive than punitive, it is more akin to a punishment than to execution. As the writ is very drastic in form, the Courts have generally been reluctant to allow the writ to issue except in the clearest cases and will not normally issue the writ unless the conduct has been intentional or reckless. The conduct must be shown to have been contumacious or wilful ...

Purging the contempt

7.30Once a contempt has been purged, the order for committal or sequestration order can be discharged. In respect of the District Court, section 98 of the District Courts Act provides that, if at any time it appears to the satisfaction of a judge of the court that a person confined to prison under a warrant for committal ought to be discharged for any reason, the judge may order discharge upon such terms as he or she thinks fit. Rule 15.72 of the District Court Rules deals with the process for discharging a person who is in custody under a warrant.

Other remedies
7.31The court may, in its own discretion, grant an injunction in lieu of committal or sequestration to restrain the commission or repetition of a civil contempt. The power to grant an injunction in a case of civil contempt is exercisable by the court on its own initiative and not at the instance of the applicant, whose proper remedy is to move to commit or to apply for a sequestration order. The court may, in lieu of any other penalty, require the contemnor to pay the costs of the motion. As a general rule, the defendant can be ordered to pay costs only if found guilty of contempt. Sometimes, full solicitor-client costs are ordered.343

Collateral challenges to validity of original order

7.32It is not open to a defendant in a contempt proceeding to challenge the validity of the order said to have been breached. People are not free to ignore court orders simply because they believe they lack foundation and should not have been made. The citizens’ safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them.344 It is no answer to an allegation of contempt of court involving breach of an injunction to assert that the injunction was wrongly granted. The injunction, while in force, must be complied with unless and until it is set aside. The position was confirmed last year by the Supreme Court in Siemer.345 The majority held that, provided the court had power to make an order of its kind, a court order is binding and conclusive unless and until it is set aside on appeal or, for some other reason, lawfully quashed. Collateral attacks on such orders are not permitted.346 ​The correct approach is for the party to apply to the court for relief from the order.

Privilege against self-incrimination

7.33In civil contempt proceedings, the civil rules of evidence apply,347 although, as already discussed, the standard of proof is the criminal one. In addition, the defendant is also entitled to rely on the privilege against self-incrimination. The defendant is therefore not a compellable witness in proceedings against him or her for criminal or civil contempt, but a defendant who chooses to file an affidavit of evidence voluntarily cannot refuse, as of right, to be cross-examined on that evidence.348
299Laws of New Zealand Contempt of Court (online ed) at [54].
300Laws of New Zealand, above n 299, at [54] state that the breach must be of an undertaking given to the court by a person on the faith of which the court has sanctioned a particular course of action or inaction.
301Julie Maxton “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990) at 434.
302At 434.
303At 435.
304Solicitor-General v Krieger [2014] NZHC 172 at [23]. See Jennison v Barker, above n 296, for Salmon LJ’s decision.
305Julie Maxton “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990) at 437.
306Laws of New Zealand, above n 299, at [2].
307Siemer v Solicitor-General, above n 297, at [26].
308The rules are made under s 51 of the Judicature Act 1908. The relevant rules are in pt 17, subpt 7 of the High Court Rules – “Arrest orders and sequestration orders”, r 7.48, dealing with the enforcement of interlocutory order by committal, and r 17.6, dealing with enforcement against non-parties.
309McGechan on Procedure says that, where a matter before the court is already the subject of precise legislation, the court will rarely choose to exercise any inherent powers. The inherent jurisdiction should be developed and exercised in harmony with the relevant legislation. See McGechan on Procedure (online looseleaf ed, Brookers) at [J16.06] citing R v Moke and Lawrence [1996] 1 NZLR 263 (CA) as authority.
310Rule 17.84.
311Rule 17.85.
312The rules are made under s 51 of the Judicature Act 1908. The relevant rules are in pt 17, subpt 7 of the High Court Rules – “Arrest orders and sequestration orders”, r 7.48, dealing with the enforcement of interlocutory order by committal, and r 17.6, dealing with enforcement against non-parties.
313The Supreme Court has determined that the court could imprison a person for contempt for no more than three months and/or fine them: Siemer v Solicitor-General, above n 297, at [66]–[68].
314Summer & Winter Fuels Ltd v Pickens (1990) 4 PRNZ 621 at 623.
315Rule 17.87, which replaced r 610 (as from 1 February 2009).
316Rule 17.86.
317Rule 7.48, which provides that, if a party fails to comply with an interlocutory order, a judge can, subject to any express provision in the rules, make any order thought just, including an order that the party be committed. The rule provides that an order may not be enforced by committing the person in default to prison unless he or she has been served personally or he or she had knowledge or notice of the order and sufficient time to comply with it.
318Rule 8.33.
319See rr 8.21 and 8.33.
320McGechan on Procedure, above n 309, at [J16.06].
321McGechan on Procedure, above n 309, at [J16.06].
322District Courts Act 1947, s 79. Section 97 of the Act also provides for the issue and execution of orders or warrants for committal. Section 79(2A) provides for the enforcement of any order for discovery (including one for particular disclosure of a document against a non-party) by order or warrant for committal for a term not exceeding three months or a fine exceeding $1,000, and under s 79(4), a judgment or order for the delivery of specific chattels may also be enforced by a warrant for committal to prison.
323These four elements are identified in the most recent cases. See for example Shawyer v Thow HC Invercargill CIV-2010-425-116, 20 October 2011 at [28]; and Lockwood Group Ltd v Small HC Auckland CIV-2009-404-1019, 21 April 2010 at [65]. In Solicitor-General for New Zealand v Krieger [2014] NZHC 172 at [24]–[26], Panckhurst J combines the first two requirements so identifies only three elements that must be proved.
324Siemer v Stiassny [2007] NZCA 117, [2008] 1 NZLR 150 at [11].
325Shawyer v Thow, above n 323, at [28].
326Malevez v Knox [1977] 1 NZLR 463 at 467.
327Malevez v Knox, above n 326, at 467.
328Laws of New Zealand, above n 299, at [63].
329In one case, the Judge declined to issue a committal warrant because the applicant had waited too long before seeking to enforce an order requiring the defendant to vacate premises. The order in question required the defendant to vacate by 31 December 1991, but the defendant was not served with the “Notice as to Consequences of Disobedience of Order of Court” until two months after the date, by which time, it was impossible for him to heed the warning and obey the order. See Wellington City Council v Ivanoff [1992] DCR 727.
330For example Bowie v Weyburne [2013] NZHC 1728.
331Siemer v Stiassny, above n 324, at [10].
332At [10].
333Lockwood Group Ltd v Small, above n 323, at [68].
334Laws of New Zealand, above n 299, at [61].
335Soljan v Spencer [1984] 1 NZLR 618 (CA).
336Morris v Douglas (1996) 10 PRNZ 363 (HC) at 366.
337In a number of cases, the courts have determined that the elements of contempt are made out, but that sanctions, particularly committal or sequestration, are not appropriate. See for example Lockwood Group Ltd v Small, above n 323, at [68].
338Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) at 615.
339Pratt v Inman (1889) 43 Ch D 175 at 179.
340Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union, above n 338 at 615.
341RW Payne Report of the Committee on the Enforcement of Judgment Debts (House of Commons, Cmnd 3909, February 1969) at [904].
342Morris v Douglas, above n 336, at 366.
343Laws of New Zealand, above n 299, at [56].
344Canada (Human Rights Commission) v Taylor [1990] 3 SCR 892 per McLachlin J.
345Siemer v Stiassny, above n 324, at [13].
346At [191].
347Siemer v Stiassny, above n 324, at [10].
348Siemer v Stiassny, above n 324, at [11].