Civil Trials Bench Book — Contempt

Contempts of court still fall to be classified as civil or criminal. Contempt by breach of an order or undertaking is regarded as a civil contempt unless “it involves deliberate defiance or, as it is sometimes said, if it is contumacious”: Witham v Holloway (1995) 183 CLR 525 at 530. See He v Sun (2021) 104 NSWLR 518 as to “contumacious disregard of orders”.

The distinction has been described as “unsatisfactory” in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 109, and in Witham v Holloway, above, the High Court held that the criminal standard of proof applies to all contempts (cf ASIC v Sigalla (No 4) [2011] NSWSC 62 at [92]–[94]). However, the distinction remains for some purposes. For example, an appeal may be brought against acquittal on a charge of civil contempt: see s 101(6) of the SCA and Hearne v Street (2008) 235 CLR 125. For discussions of the distinction see Matthews v ASIC [2009] NSWCA 155 and Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69.

Civil contempts are normally left to the offended party to enforce, whereas the Attorney General or the court has a more clearly defined role in the prosecution of criminal contempts since these more directly involve interference with the administration of justice.

In Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 89, Witham v Holloway (1995) 183 CLR 525 at 534 and Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 at [35] the High Court held that while contempt of court may be criminal in nature, proceedings for punishment of contempt were brought in the civil jurisdiction of the court and were “civil proceedings”. Hence, where a charge of criminal contempt is brought in the Supreme Court by motion in “civil proceedings”, as defined in the CP Act, s 3(1), that Act and the UCPR apply: CPA, s 4(1), Sch 1; UCPR, r 1.5(1), Sch 1: Kostov v YPOL Pty Ltd [2018] NSWCA 306 at [16], [17].

The power to punish for contempt in civil proceedings is not fettered by criminal law statutes relating to procedure and sentencing: Dowling v Prothonotary of the Supreme Court of NSW (2018) 99 NSWLR 229; at [43]–[45]; He v Sun [2021] 104 NSWLR 518 at [66]. The Crimes (Sentencing Procedure) Act 1999 does not apply to sentence proceedings for contempt in the court’s civil jurisdiction: Dowling v Prothonotary of the Supreme Court of NSW (2018) 99 NSWLR 229 at [12], [57]–[58]; He v Sun [2021] NSWCA 95 at [38]; [62]. The power to suspend a sentence, although no longer available under the Crimes (Sentencing Procedure) Act 1999, survives in cases of contempt by virtue of Pt 55 r 13 of the Supreme Court Rules. Rule 13(3) relevantly provides that the court may make an order for punishment on terms, including a suspension of punishment: He v Sun at [39]–[40]; [66]. In committing a person to prison for contempt in civil proceedings, while the court may apply general law protections afforded to persons accused of a criminal offence, the court is nevertheless operating in its civil jurisdiction and criminal statutes are not engaged: Dowling at [46], [57]–[58]; [139];

Section 101(5) of the Supreme Court Act 1970 provides that the Court of Appeal, rather than the Court of Criminal Appeal, has jurisdiction to hear and determine an appeal from a judgment or order of the Supreme Court in proceedings relating to contempt of court. Note also that the Mental Health (Forensic Provisions) Act 1990 (rep) has been held not to apply to criminal contempt proceedings: Prothonotary of the Supreme Court of NSW v Chan (No 15) [2015] NSWSC 1177; Kostov v YPOL Pty Ltd at [19]. Note: the 1990 Act has been replaced by the Mental Health and Cognitive Impairments Forensic Provisions Act 2020 (commenced 27 March 2021).

The common-law requirement that a criminal trial not proceed unless the accused is fit to plead is a safeguard applicable to civil proceedings for criminal contempt: Kostov v YPOL, at [18], [19].

See Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202 at [4]–[5] and Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106 at [2]–[12] for the principles and rationale for sentencing for contempt.

Sentencing principles summarised by the court in Commissioner for Fair Trading v Rixon (No 5) [2022] NSWSC 146 include:

See also Sentencing Bench Book at [20-155] and N Adams and B Baker, “Sentencing for contempt of court”, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020, Canberra.

Contempt by publication

For the purposes of sub judice contempt, the law of contempt does not begin to operate until proceedings are pending in a court. It is not sufficient that proceedings be imminent: James v Robinson (1963) 109 CLR 593.

To amount to a sub judice contempt of court, a publication must have, as a matter of practical reality, a tendency to interfere with the course of justice in a particular case: John Fairfax & Sons Pty Ltd and Reynolds v McRae (1955) 93 CLR 351. The tendency to prejudice proceedings must be clear, or “real and definite”. There should be a substantial risk of serious interference: Hinch v Attorney General (Vic) (1987) 164 CLR 15. See also R v The Herald & Weekly Times (Ruling No 2) [2020] VSC 800 at [76]–[78], [84].

The tendency of a publication to prejudice proceedings is to be determined objectively having regard to the nature of the material published and the circumstances existing at the time of publication: Attorney General v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at 386; Director of Public Prosecutions v Wran (1987) 7 NSWLR 616 at 626. As to the time at which an internet publication takes place, see Tate v Duncan-Strelec [2014] NSWSC 1125 at [145].

While the act of publication must be intentional, an intention to prejudice the due administration of justice is not an element of contempt: John Fairfax & Sons Pty Ltd and Reynolds v McRae, above, at 371.

Factors to be considered in determining whether a publication has the necessary tendency to cause serious prejudice to a trial include (per Mason CJ in Hinch, above, at 28):

The practical tendency of a publication to endure and influence prospective jurors must be viewed against its background of pre-existing legitimate publicity: Attorney General v John Fairfax & Sons Ltd and Bacon (1985) 6 NSWLR 695 at 711.

The likely delay between the date of publication and the commencement of the subject proceedings is an important consideration. It is also appropriate to take into account that, during this period, jurors will be assailed by the media with sensational reports of other events: Victoria, State of and Commonwealth of Australia v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25 at 136; John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344, per Spigelman CJ at [100].

The most common and obvious form of media contempt is influencing the tribunal of fact. There will generally not be a danger of this in civil proceedings, where no jury will usually be present. It is essentially established that a publication or broadcast will not be regarded as presenting a substantial risk of prejudice by influencing a judge: Victoria, State of and Commonwealth of Australia v Australian Building Construction Employees and Builders Labourers Federation, above, at 58.

The same principle has been extended to magistrates: Attorney General v John Fairfax & Sons Ltd and Bacon, above.

Contempt may be committed by publications that have a real tendency to influence the evidence of witnesses or to deter them from attending. Publication of photographs may risk contamination of identification evidence: Ex parte Auld; Re Consolidated Press Ltd (1936) 36 SR (NSW) 596 at 598.

The premature publication of evidence may have a tendency to influence the evidence of witnesses or potential witnesses: see Attorney General v Mirror Newspapers Ltd [1980] 1 NSWLR 374.

Improper public pressure upon litigants, which has a real tendency to deter or influence them in relation to proceedings, may amount to contempt: Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27.

A fair and accurate report of judicial proceedings may be published in good faith notwithstanding that it may present a risk of prejudice to pending proceedings: Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255 at 257.

No contempt will be established unless it can be demonstrated that the risk of prejudice to the administration of justice, is not outweighed by the public interest in freedom of discussion on matters of public concern: Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242 at 249; Hinch per Mason CJ at 27, Wilson J at 43 and Deane J at 51; Attorney General v X (2000) 49 NSWLR 653.

There is an arguable basis of contempt by prejudgment in that, even if the tribunal of fact is unlikely to be influenced, such as when it is constituted by a judge only, prejudgment by the media may undermine public confidence in the administration of justice. The principle has been doubted in Australia: Civil Aviation Authority v Australian Broadcasting Corp (1995) 39 NSWLR 540 at 553–560, 570, 571.

Scurrilous, unjustified criticism of the court may amount to contempt by having a real tendency to undermine public confidence in the administration of justice: The King v Dunbabin, Ex parte Williams (1935) 53 CLR 434 at 442. For more recent consideration, see Dowling v Prothonotary of the Supreme Court of NSW (2018) 99 NSWLR 229; State Wage Case (No 5) [2006] NSWIRComm 190; Environment Protection Authority v Pannowitz [2006] NSWLEC 219; Tate v Duncan-Strelec [2014] NSWSC 1125 at [193] et seq, and Mahaffy v Mahaffy (2018) 97 NSWLR 119 per Simpson JA at [170]–[244].

Misconduct in relation to parties, witnesses, etc

Conduct that has a real tendency to improperly influence or deter a witness, judicial officer, juror, party or other person having a role in judicial proceedings may amount to contempt.

The test at common law is whether the action taken against the person had a tendency to interfere with the administration of justice: In the matter of Samuel Goldman, Re; sub nom Re Goldman [1968] 3 NSWR 325 at 327, 328. It is not necessary to show actual interference: Harkianakis v Skalkos (1997) 42 NSWLR 22 at 29.

Cases involving pressure upon parties to proceedings will often require an assessment of whether that pressure was improper: Bhagat v Global Custodians Ltd [2002] NSWCA 160, per Spigelman CJ at [35]. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper: Harkianakis, above, at 30. Contempt by improper pressure on a party or witness may derive from misuse of the court’s processes, such as by filing, or threatening to file, defamatory material by affidavit: eg Y v W (2007) 70 NSWLR 377.

As to threats to seek costs, including costs against lawyers, see Nuclear Utility Technology & Environmental Corp Inc (Nu-Tec) v Australian Broadcasting Commission (ABC) [2009] NSWSC 78. As to inappropriate use of statutory powers to gain an advantage, see NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456 cf Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10.

In Ulman v Live Group Pty Ltd [2018] NSWCA 338 at [77], the court noted the distinction to be drawn between a contempt arising from conduct that interferes with the administration of justice in a particular case and interference with the administration of justice generally. In the former case, no contempt will have been committed unless proceedings are pending: see James v Robinson (1963) 109 CLR 593 at 602–607. In The Prothonotary v Collins (1985) 2 NSWLR 549, McHugh JA observed, at 567:

See also Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 per Ward CJ in Eq at [130]ff.

Improper pressure on prospective parties, before any proceedings have been commenced, can constitute a contempt. This is upon the basis that it represents an interference with the administration of justice generally: Live Group Pty Ltd v Rabbi Ulman [2017] NSWSC 1759.

Liability for misconduct in relation to those discharging a role in judicial proceedings is not confined to something said or done while the proceedings are pending, or even in the course of being heard. Reprisals may influence or deter the person affected, and persons generally, in relation to access to the courts (in the case of parties), or the performance of such roles. See European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 (witness); Prothonotary v Wilson [1999] NSWSC 1148 at [21(c)] (judge); Clarkson v Mandarin Club Ltd (1998) 90 FCR 354 (party); Principal Registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 506 at [20] (counsel); Prothonotary of the Supreme Court of NSW v Katelaris [2008] NSWSC 389 (juror); Tate v Duncan-Strelec [2014] NSWSC 1125.

Temporal and geographical elements may be relevant, but it is immaterial whether the conduct was committed in or outside the court so long as it is an interference with the administration of justice.

An intention to interfere with the administration of justice is not an element of contempt of court: John Fairfax & Sons Pty Ltd and Reynolds v McRae, above, at 371; Harkianakis at 28. However, intention is relevant and sometimes important: Lane v Registrar of the Supreme Court of NSW (1981) 148 CLR 245 at 258.

What needs to be established is an intention to do an act that has a clear objective tendency to interfere with the administration of justice: Principal Registrar v Katelaris, above, at [23].

If the likely effect of the conduct is not self-evident (for example, if it is not clear whether the action has been taken to influence a person in relation to proceedings, or as a reprisal arising from proceedings) further inquiries may be made regarding motive, in order to demonstrate a nexus to the subject person’s role in the legal proceedings, see Registrar of the Supreme Court of NSW (Equity Division) v McPherson [1980] 1 NSWLR 688 at 699, and, on appeal, Lane, above, reviewed in X v Australian Prudential Regulation Authority (2007) 226 CLR 630 at [54].

If intention to influence or deter can be proved, that is usually sufficient to establish liability: Harkianakis at 28.

Part 7 Div 3 of the Crimes Act 1900 contains offences relating to threats to or reprisals against, judicial officers, witnesses, jurors, etc.

Breach of orders or undertakings

An order made by an inferior tribunal is invalid if made without jurisdiction. It is regarded as a nullity and breach of it will therefore not constitute a contempt: Attorney General v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357; Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 at [27]. The situation is otherwise in respect of the order of a superior court of record, which is taken to be valid until set aside: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 620; see also Papas v Grave [2013] NSWCA 308 and Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506.

As to the validity of suppression orders see [1-0410].

As to the construction of court orders (including the relevance of the context in which the order was made), see Athens v Randwick City Council (2005) 64 NSWLR 58. Hodgson JA observed at [27] that:

In order to support a prosecution for contempt, an order must be clear in its terms, but if it is, it is no defence that the contemnor may have been mistaken as to its effect: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483.

For recent judicial consideration, see City of Canada Bay v Frangieh [2020] NSWLEC 81 at [61]; see also Rafailidis v Camden Council [2015] NSWCA 185 and Brown Brothers v Pittwater Council (2015) 90 NSWLR 717.

Wilful (rather than casual, accidental or unintentional) breach of an order or undertaking by which a person is bound and of which the person has notice, will amount to contempt: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd, above. It is not necessary to prove a specific intention to disobey the court’s order: Anderson v Hassett [2007] NSWSC 1310. It must be shown beyond reasonable doubt that the conduct was a deliberate breach of the order and the prosecutor bears the onus of establishing that the alleged contemnor did something or failed to do something that he could have otherwise done: Mahaffy v Mahaffy (2018) 97 NSWLR 119 at [250]. For a helpful review of applicable principles, see Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321 at [126]–[130]; Doe v Dowling [2017] NSWSC 202 at [39]–[50].

Civil contempt cannot be brought for a breach of a judgment debt (as opposed to an order to pay money) where there was no operative judicial act which gave rise to the judgment debt: Bellerive Homes Pty Ltd v FW Projects Pty Ltd (2019) 106 NSWLR 479 at [184]–[187]. In this case, the judgment against the respondent was entered pursuant to the operation of s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) and was not preceded by a decision of a court.

As to the requirement for notice of orders, see Amalgamated Televisions Services Pty Ltd v Marsden (2001) 122 A Crim R 166. As to the availability of inferring notice of an order on the basis that “informed instructions” must have been given to legal representatives, see Young v Smith [2016] NSWSC 1051.

A court may generally accept an undertaking from a party in substitution for making an order, subject to the same jurisdictional limitations: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 165. For the purposes of the law of contempt, an undertaking given to the court is treated as if it was an order. Aliter if undertaking given inter partes: Srotyr v Clissold [2015] NSWSC 1770.

While the Commonwealth and the State are expected to comply with court orders, enforcement by contempt proceedings is not available: Hoxton Park Resident’s Action Group Inc v Liverpool City Council [2014] NSWSC 704.

The types of material disclosed to which this principle applies include documents inspected after discovery (as to which see also UCPR r 21.7), documents produced on subpoena, witness statements served pursuant to a judicial direction and affidavits: Hearne v Street (2008) 235 CLR 125 at [96]. While previously categorised as an “implied undertaking” to the court, this is an obligation of substantive law, and binds third parties who receive the documents knowing of their origin.

As to considerations relevant to granting leave, see Prime Finance Pty Ltd v Randall [2009] NSWSC 361 (application for leave to provide copies of affidavits to police on the basis that they disclosed criminal offences). As to the scope of the obligation in relation to affidavits, see Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 533 cf Tate v Duncan-Strelec [2014] NSWSC 1125 at [188].

Deliberate frustration of court orders will amount to contempt, provided that the purpose of the orders is clear: CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 at 531; Attorney General v Mayas Pty Ltd, above, at 355; Baker v Paul [2013] NSWCA 426.

For a consideration of the liability of a director for orders directed to a company, see Mahaffy v Mahaffy (2018) 97 NSWLR 119.

Refusal to attend on subpoena/give evidence

Refusal to attend in response to a subpoena is a contempt of court, though it is not a contempt “in the face of the court”: Registrar of the Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459; see also UCPR r 33.12.

Refusal to be sworn, or refusal to answer material questions, will constitute contempt, in the absence of any relevant privilege: Smith v The Queen (1991) 25 NSWLR 1; Registrar of the Court of Appeal v Craven (No 2) (1995) 80 A Crim R 272.

See also procedure, including for the issue of warrant, under s 194 of the Evidence Act 1995.

As to proofs required for contempt by failure to comply with a subpoena to produce documents, see Markisic v Commonwealth (2007) 69 NSWLR 737; [2007] NSWCA 92 at 748; Mahaffy v Mahaffy, above, at [152].

Duress may be raised as a defence to contempt: Registrar of the Court of Appeal v Gilby (unrep, 20/8/91, NSWCA). The principles to be applied are those set out in R v Abusafiah (1991) 24 NSWLR 531 at 545. It is not sufficient that there be a generalised fear or apprehension of retaliation, although this may be a matter relevant to penalty: Gilby, above; Principal Registrar of Supreme Court of NSW v Tran (2006) 166 A Crim R 393; R v Razzak (2006) 166 A Crim R 132 at [24].

While the giving of false answers in the courts of evidence is likely to interfere with the administration of justice, such conduct will not usually constitute contempt. It may amount to contempt if it consists in giving palpably false answers so as to indicate that the witness is merely fobbing inquiry: Coward v Stapleton (1953) 90 CLR 573 at 578–579; see also Keeley v Brooking (1979) 143 CLR 162 at 169, 172, 174, 178; Commissioner for the Police Integrity Commission v Walker (No 2) [2006] NSWSC 696.

Jurisdiction and procedure

Contempt of court in the face, or in the hearing of, the Supreme Court may be dealt with under the summary procedure in SCR Pt 55 Div 2 (see [10-0060]) or by directing the registrar to commence proceedings under SCR Pt 55 Div 3. Contempt not in the face or hearing of the court must proceed under Div 3: see [10-0120].

Proceedings for contempt in the face or hearing of the Supreme Court, or for breach of orders or undertakings, are assigned to the division of the court (or the Court of Appeal, as the case may be) in which the contempt occurred: SCA ss 48(2), 53(3). Contempt proceedings in respect of contempts of the Supreme Court, or of any other court, are otherwise assigned to the Common Law Division: SCA s 53(4).

The Dust Diseases Tribunal has the same powers for punishing contempt of the tribunal as are conferred on a judge of the Supreme Court for punishing contempt of a division of the Supreme Court: Dust Diseases Tribunal Act 1989 s 26.

The District Court has power to punish contempt of court committed in the face of the court or in the hearing of the court: DCA s 199.

The Local Court has the same powers as the District Court in respect of contempt of court committed in the face or hearing of the court: LCA s 24(1).

The District Court may refer an apparent or alleged contempt to the Supreme Court under DCA s 203 and the Local Court may refer an apparent or alleged contempt to the Supreme Court under LCA s 24(4) (see [10-0130]).

A possible contempt may alternatively be referred to the Attorney General for consideration of appropriate action.

Legislation

Rules

Further reading