Civil Trials Bench Book — Contempt

If the Supreme Court has committed a contemnor to a correctional centre for a term, the court may order the contemnor’s discharge before the expiry of the term: SCR Pt 55 r 14. See, for example, Menzies v Paccar Financial Pty Ltd (2016) 93 NSWLR 88.

No express power is provided to the District Court and it must therefore be inferred if a contemnor is to be released prior to the expiration of a sentence imposed by the court. The power to suspend a sentence under DCA s 199(8) may be used for this purpose.

Section 24(1) of the LCA provides the Local Court with the same powers as the District Court in relation to contempt. However, s 24(2) appears to go further in that it provides, without limiting s 24(1), “the Local Court may vacate or revoke an order with respect to contempt of court”.

Contempt in the form of breach of orders may be purged by apology, payment of compensation/reparation and payments of costs: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 489; Evans v Citibank Ltd [2000] NSWSC 1017.

In some cases a contemnor may be given an opportunity to purge such a contempt by being given further time to comply: for example, Globaltel Australia Pty Ltd v MCI Worldcom Australia Pty Ltd [2001] NSWSC 545. The same opportunity should generally be given to a contemnor who refuses to give evidence: Smith v The Queen (1991) 25 NSWLR 1.

In relation to continuing breaches of court orders, it is open to a court to suspend a fine for a certain period, or to impose a fine for a continuing breach after a specified date, in order to effectively allow a contemnor to purge the contempt: see for example, Liverpool Plains Shire Council v Rumble (No 3) (2014) 205 LGERA 170 and Camden Council v Rafailidis (No 5) [2014] NSWLEC 85.

Contempt by refusal to give evidence may be purged by later doing so. A contempt will still be made out, but purgation will be relevant to penalty: eg Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495.

The doctrine does not provide a freestanding enforceable right to claim damages: United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 340.

Subject to some exceptions, a contemnor “… against whom an order for committal has been made, cannot be heard or take proceedings in the same cause until he has purged his contempt; nor while he is in contempt can he be heard to appeal from any order made in the cause …”: United Telecasters, above, at 340. This principle was reviewed in detail Leaway Pty Ltd v Newcastle City Council (No 2) (2005) 220 ALR 757 and, more recently, by Pembroke J in Malek Fahd Islamic School Ltd v Australian Federation of Islamic Councils Inc [2016] NSWSC 672. The rule extends to a case where a party is considered to be prima facie in contempt, such as when the court can see the party has disobeyed its order: Young v Jackman (1986) 7 NSWLR 97.

Legislation

Rules