Purging contempt

[10-0700] Power to discharge contemnor

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”.

[10-0710] Principle of purgation

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.

[10-0720] Disability of party in contempt or prima facie in contempt

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.


  • DCA s 199(8)

  • LCA s 24(1), (2)


  • SCR Pt 55 r 14