Contents

Chapter 5
Non-compliance with court orders

Issues Paper

5.46In the Issues Paper the Law Commission considered whether the traditional distinction between civil and criminal contempt should be abolished. As already noted, following the Supreme Court decision in the first Siemer case,439 the distinction now has minimal significance in New Zealand.440 Civil contempt, because of the risk of imprisonment, is treated by the courts as criminal contempt.
5.47The Issues Paper noted that there had been calls in several jurisdictions for the abolition of civil contempt. In 1974, the Phillimore Committee in the United Kingdom concluded that the distinction was complex and artificial and recommended that all distinctions between civil and criminal contempt in England and Wales should be abolished.441 In its 1987 report, the Australian Law Reform Commission recommended abolishing the common law of civil contempt. The Commission recommended replacing it with statutory forms of proceedings for civil enforcement of court orders and a separate offence of disobedience contempt that would cover defiant breaches of both civil and criminal court orders.442 In a more recent 2003 report reviewing the law of contempt, the Law Reform Commission of Western Australia concluded that civil contempt should be abolished and replaced by an offence.443 None of these recommendations has, however, been adopted.444

5.48The Issues Paper also identified a number of other issues requiring resolution:

(a) Whether Parliament should enact a more comprehensive statutory regime for enforcing court orders and undertakings to clarify and simplify the law. The contempt of non-compliance with court orders is only partially codified. Legislative reform would address the uncertainty discussed in [5.16] to [5.21] above over the extent of the jurisdiction of the District Court, Family Court and Environment Court.

(b) Whether the maximum penalty levels that can be imposed should be rationalised. As discussed above at [5.33] to [5.34], the High Court can impose a penalty of up to two years’ imprisonment for breach of a court order, while other courts can impose no more than three months’ imprisonment. Fines are also limited to $1,000 in other courts. The significant difference in penalties available for breaches of High Court orders and orders made by other courts is an inadvertent consequence of the 2013 amendment to section 24(e) of NZBORA.

(c) Whether reform should clarify that the methodology in the Sentencing Act applies when determining the appropriate penalty for contempt.

(d) Whether sequestration orders should be retained. The Issues Paper suggested that sequestration could be considered draconian because it prevents a person from using or disposing of their property until the contempt is purged or the order is lifted by the Court.445 There are now modern alternatives to sequestration available in the enforcement arsenal and the Issues Paper asked for feedback on whether the remedy should be abolished.

Proposals included in the Issues Paper

5.49In the Issues Paper the Commission suggested it might be time to abolish contempt as a civil enforcement mechanism to remedy private wrongs. Imprisonment is the most punitive sanction, and the Commission suggested it should only be available under the criminal law, and not used for civil enforcement. The Commission put forward a proposal to abolish contempt and replace it with a new offence (option 1). As an alternative, the Commission proposed retaining contempt but in a statutory form (option 2).

Option 1: Abolish civil contempt and have a new statutory offence

5.50The Commission proposed removing contempt proceedings from the civil enforcement measures available to litigants. A new statutory offence would be created in its place.446 The offence would be prosecuted in the usual way and would be available to punish the types of serious breach of court orders currently considered criminal contempt (being breaches that have an element of public defiance of the court’s process in a way that is calculated to undermine the administration of justice).

5.51Civil enforcement mechanisms would otherwise remain as they are, with the enforcement of orders in the hands of the parties affected. Contempt proceedings for non-compliance would, however, be abolished and the courts would not be able to commit a person to prison for failing to comply with a court order unless the person was being convicted of the new offence.

5.52The Commission also proposed abolishing the remedy of sequestration because there were now sufficient modern enforcement remedies available.

Option 2: Codify use of contempt for enforcing court order

5.53The alternative option proposed was to retain contempt where it involved a breach of a court order, but to codify it more fully in statute. If retained in statutory form, Parliament could specify in the statute a clearer framework, including expressly applying NZBORA protections to criminal charges. Under this option contempt would remain a hybrid between criminal and civil procedure, but with clear statutory limits on its use.

5.54Option 2 was included as an alternative because Commissioners had reservations about whether an ordinary statutory offence (option 1) would leave litigants with sufficient civil remedies. The Issues Paper suggested that although parties would no longer be able to seek committal to prison or a fine, they would still have available to them all the other existing civil enforcement tools.

Submissions and feedbackTop

5.55Submitters were divided on whether we should have a new statutory offence and whether this offence should replace the contempt of non-compliance with court orders. Some favoured a specifically designed offence to deal with breaches of court orders, saying failure to comply with a court order is as much an offence against the state as a wrong against the other party. They were not comfortable using contempt as a mechanism of civil enforcement and supported an end to contempt in this context. They supported introducing the independent prosecutorial scrutiny that would occur with an offence.

5.56On the other hand, some submitters were not supportive of contempt of breaching a court order becoming an offence. The Police were concerned Police prosecutors would become responsible for receiving complaints regarding civil disputes and effectively, although not legally, Police would be prosecuting for a civil party rather than the state. Others were concerned an offence would not be an effective mechanism for enforcing an order, and without contempt, there would be nothing else adequate in the civil enforcement options. They were concerned that because of the penalty level involved the offence would be prosecuted in the District Court, even where the order being breached was a High Court order.

5.57Most submitters, whether they supported the proposal for an offence or not, considered it still necessary for the courts to retain the power to imprison a litigant to force compliance with a court order in civil proceedings. Many questioned how a court could adequately enforce an order in a case like Jones v Skelton, where a child had been abducted and the party refused to disclose the child’s whereabouts, without being able to imprison the person.447 The New Zealand Law Society said this was necessary as a last resort provided all the appropriate NZBORA protections applied.

5.58The District Court judges, in their comments on the Issues Paper, argued it was important to have an effective way of ensuring people complied with court orders. Even if rarely used, the threat of imprisonment was in their experience effective in achieving compliance. They saw no disadvantage in retaining contempt as a last resort, while abolishing it risked creating a class of litigant with no mechanism available to enforce court orders.

5.59In relation to sequestration orders, most submitters considered that the remedy, while rarely used, was vital as a remedy of last resort.

439Siemer v Solicitor-General [2010], above n 359.
440See [5.32] for discussion on the remaining differences between civil and criminal contempt.
441Lord Phillimore Report of the Committee on Contempt of Court (House of Commons, Cmnd 5794, December 1974) at 73.
442Australian Law Reform Commission Contempt (ALRC Report 35, 1987) Summary of recommendations at [64] and Appendix A cl 46.
443Law Reform Commission of Western Australia Report on Review of the Law of Contempt (LRWA, PN 93 III, 2003) at 92–95 and recommendation 46.
444In response to the Australian Law Reform Commission a government position paper was prepared and circulated, outlining the Federal Government's position on the Commission's recommendations in 1992. Although four jurisdictions initially agreed to work together for the purpose of agreeing on uniform contempt legislation, state and territory interest in the project lapsed and the project is no longer being actively pursued; ALRC “Contempt” (12 July 2010) <www.alrc.gov.au>; The Law Reform Commission of Western Australia’s Report was tabled in the State Parliament on 9 September 2003. The Commission has advised that there has been no government feedback on this aspect of the report and the recommendation has not been implemented.
445Morris v Douglas, above n 374, at 366.
446Contempt is the sole remaining common law offence still recognised in Canadian law, however, Part IV of the Canadian Criminal Code (covering offences against the administration of law and justice) does include an offence of disobeying a court order. Section 127(1) of the Code provides that:

Everyone who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

This was the type of provision the Commission envisaged, although the Commission did not intend it would be an indictable offence.
447Jones v Skelton [2006] NZSC 113, [2007] 2 NZLR 178; Ms Skelton spent 79 days in prison for contempt of court and was released after her father, the child’s grandfather, returned the child to the Hamilton Police station.