Chapter 5
Non-compliance with court orders

The contempt of non-compliance

5.5A person will be in contempt of court if he or she fails or refuses to comply with a lawfully made court order.361 One exception to this general position, however, is that an order requiring the payment of money cannot be enforced by contempt proceedings.362 The power to commit a person to prison for non-payment of a debt was abolished in New Zealand in 1990.363
5.6Breaching an undertaking given to the court is also contempt of court if, on the faith of the undertaking, the court has sanctioned a particular course of action.364

Jurisdiction of the High Court

5.7This form of contempt comes within the High Court’s authority under its common law inherent jurisdiction. At the same time, the High Court Rules prescribe the practice and procedure for issuing an order of arrest and committing a person for contempt of court. The Court will not exercise its authority under its inherent jurisdiction in a manner that is contrary to legislative requirements.365
5.8Briefly, in this area of contempt, the High Court Rules provide that the Court may issue an arrest order366 and commit a person to prison for contempt of court367 where a court order has been breached or where an undertaking has been breached.368 The Rules provide that the term of imprisonment that the Court may impose is such period as the Court thinks necessary and is allowed by law.369 Alternatively, the High Court may impose a fine for contempt, an order for costs or, if appropriate, strike out a proceeding.
5.9Consistent with the legislative abolition in 1990 of the power to commit a person to prison for debt, the High Court Rules expressly exclude committal for breach of an order to pay a sum of money.370
5.10The Court may also issue a sequestration order against the property of a person held in contempt of court.371 A sequestration order authorises 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.372 Sequestration is an ancient remedy originating in the Courts of Chancery in Elizabethan times.373 It is available only as a last resort374 and only where the person has wilfully disobeyed the court order.375 It has been mostly used in cases where an order has been disobeyed by a corporate body, where committal would not be available.376
5.11The Rules provide a power for the Court to commit a party to prison for wilfully failing to comply with an interlocutory order377 or for wilfully failing to comply with an order for discovery or for the production or inspection of documents.378 The Rules also address 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.379
5.12The High Court’s authority under its inherent jurisdiction is considered wider than the powers contained in the High Court Rules. As pointed out in McGechan on Procedure, “[t]he very character of the inherent jurisdiction defies defining its scope.”380 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.381
5.13The Court may exercise its powers under the High Court Rules to enforce an order on the application of the party entitled to the benefit of the order.382 The Rules also provide for enforcement by a non-party where the non-party obtains an order.383 In addition the Solicitor-General may bring an application in the same way as in respect of other forms of contempt.384 When bringing an application, the Solicitor-General is not acting on behalf of the party in the civil proceeding or on behalf of the government, but is acting as a Law Officer of the Crown in the performance of his or her duty to safeguard the administration of justice.385

Jurisdiction of the District Court, Family Court and Environment CourtTop

5.14The District Court Act 2016, which came into force on 1 March 2017, replaced the District Courts Act 1947. It confers on the District Court and also on the Family and Environment Courts, which both partly source their jurisdiction from the new Act, statutory jurisdiction to enforce some court orders by detention for contempt.386 Section 134 of the District Court Act provides that:387

134 Judgment or order in nature of injunction, etc

(1) This section—

(a) applies to a judgment or an order in the nature of an injunction; and

(b) applies to a judgment or an order within the competence of the court that, if it were given or made in the High Court, could be enforced in the High Court by a writ of arrest; but

(c) does not apply to an order for the recovery of land.

(2) A judgment or an order to which this section applies may be enforced, by order or warrant of a Judge, by detention for a term not exceeding 3 months.

5.15The Act also provides for the enforcement of any order for discovery (including one for particular disclosure of a document against a non-party) by detention for contempt.388 The maximum penalty is again a term not exceeding three months or a fine not exceeding $1,000.389
5.16There was uncertainty over the scope of the contempt jurisdiction conferred by the earlier 1947 Act, particularly as it applied to orders made by the Family Court. The High Court in the 2009 decision KLP v RSF [Contempt of court] determined that the general ancillary jurisdiction conferred on District Courts under section 41 of the earlier District Courts Act 1947 was broad enough to encompass the ability to punish a party to proceedings for contempt if that party refused to comply with a lawful order of the court.390 Section 41 provided:

41. General ancillary jurisdiction

Every Court, as regards any cause of action for the time being within its jurisdiction, shall (subject to the provisions of section 59) in any proceedings before it —

(a) grant such relief, redress, or remedy, or combination of remedies, either absolute or conditional; and

(b) give such and the like effect to every ground of defence or counterclaim equitable or

as ought to be granted or given in the like case by the [High Court] and in as full and as ample a manner.

5.17The High Court adopted a broad interpretation of this provision and said its effect was that the District Court had the same power as the High Court to grant relief, redress or remedy in the manner sought.

5.18The Family Court applied KLP v RSF on a number of occasions.391 The decision gave the Family Court confidence that it could enforce most orders by contempt, whereas before the decision the position was considered uncertain.392 Following the KLP v RSF decision in 2009, the Family Court relied on section 41 and occasionally imprisoned a litigant for contempt of court for wilful disobedience of a court order.393 In one case a parent was sentenced to 14 days in prison for breaching a parenting order and then a further six weeks for subsequent wilful breaches.394 More often, however, the Family Court simply warned parties that it had the potential to hold them in contempt unless they complied with the court’s orders.395
5.19We had reservations about founding jurisdiction to commit for contempt on section 41. In our view it was at least doubtful whether the provision was a sufficiently clear platform on which to base a punitive power of this type. This matter had not been before the senior appellate courts. Where loss of liberty was at stake the law should clearly state a court’s power.396

5.20The new District Court Act 2016 has replaced section 41 with a provision that might be interpreted more narrowly by the courts. The new provision (section 84) is entitled “Remedies” and provides that, in a proceeding, a Judge may:

... in the same way as a Judge of the High Court in the same or a similar proceeding –

(a) grant any remedies, redress, or relief:

(b) dispose of the proceeding:

(c) give effect to every ground of defence or counterclaim, whether legal or equitable.

5.21The District Court’s powers under section 84 are not as clear as they could be. It is not obvious whether the language of this provision can or will be interpreted widely enough to allow for the punishment of contempt of court. It is also unclear whether the District Court, the Family Court or the Environment Court, which source some aspects of their jurisdictions from the District Court Act 2016, can make sequestration orders. This issue has not been tested in the courts, although a line of United Kingdom cases on equivalent provisions suggests that the District Court may possibly be able to make sequestration orders under section 84.397

5.22The extent of the District Court’s powers, and those of other courts sourcing jurisdiction through the District Court Act, in respect of non-compliance with court orders could helpfully be clarified by legislation.

Proving contemptTop

5.23Any applicant seeking to enforce a civil judgment by contempt proceedings must prove to the criminal standard of beyond reasonable doubt that:398

(a) the terms of the court order were clear and unambiguous and binding on the defendant;

(b) the defendant had knowledge or proper notice of the terms of the order, normally as the result of personal service;399

(c) the defendant acted in breach of the terms of the order; and

(d) the defendant’s conduct was deliberate.

It is unnecessary to establish whether a defendant knew he or she was breaching a court order. It is sufficient to show the relevant actions were deliberate.400 The fact a person’s liberty may be affected means the standard of proof is the criminal standard.401

5.24The courts have established the above elements in case law, but they are not in statute or in the High Court Rules.

Collateral challenges to validity of original order not permittedTop

5.25It is not open to a defendant in contempt proceedings to challenge the validity of the order said to have been breached. The courts have been clear that people are not free to ignore court orders simply because they believe they lack foundation and should not have been made. The defendant must comply with the order while it is in force, and unless and until it is set aside. It is no answer to an allegation of contempt to assert that the underlying order was wrongly granted.402 The law is clear. As the majority of the Supreme Court stated in the second Siemer case:403

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 is for some other reason lawfully quashed. Collateral attacks on such orders are not permitted. Neither the parties, nor other persons subject to an order, are permitted to arrange their affairs in accordance with their perceptions of its flaws, including any individual views they may have concerning the validity of the order. The position is the same whether the order has been made in the High Court or in the District Court.

Civil and criminal contempt no longer distinguishedTop

5.26The law has traditionally classified contempt as either a civil or a criminal contempt. The distinction is not dependent on whether the underlying order was made in criminal or civil proceedings, but on the nature of the breach or non-compliance. Failures to comply with court orders or undertakings are normally classified as civil contempts, although some breaches of court orders are considered criminal contempt.404
5.27The conceptual distinction between civil and criminal contempt is not clear because it turns on whether the contempt involves conduct that so threatens the administration of justice it requires punishment from the public point of view. If it does, it is a criminal contempt, even when the contempt itself takes the form of a breach of a court order made in civil proceedings.405 McLachlin J in the Supreme Court of Canada explained the distinction:406

A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court’s process in a way calculated to lesson societal respect for the courts is added to the breach, it becomes criminal.

5.28Under the traditional dichotomy, the law conceptualises criminal contempt as punitive and concerned with punishing actions or words that obstruct or interfere with the public interest in the administration of justice. Meanwhile it views civil contempt as primarily remedial or coercive in nature because it is concerned with compelling compliance with the court’s order through the threat of punitive sanctions.407 The courts, however, have said on numerous occasions that the validity of the traditional distinction is highly questionable. In 2014, in Solicitor-General for New Zealand v Krieger, Panckhurst J summarised the illusory nature of the traditional distinction:408

[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.

5.29The traditional distinction 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 is coercive, it is also punitive and shares the attributes normally associated with criminal contempt.409 It is only because the disobedience of the courts’ orders interferes with the fair administration of justice that it is contempt and punishable by imprisonment in the same way as criminal contempt.410

Procedural protections applied in the first Siemer case

5.30As already mentioned in chapter 1,411 the Supreme Court decided in the first Siemer case that the fair trial rights under section 24 of the New Zealand Bill of Rights Act 1990 (NZBORA) apply to all defendants facing allegations of contempt, whether civil or criminal, because they are potentially at risk of imprisonment.412 Although the Court did not directly address whether there was still a distinction between criminal and civil contempt, the consequence of the Court recognising these criminal law protections apply in all contempt cases is that the distinction is no longer a helpful one.413

5.31In New Zealand law civil and criminal contempt are therefore now almost indistinguishable. In both:

Purging the contempt

5.32One remaining difference between civil and criminal contempt, however, is that civil contempt can be purged or made good by the person complying with the original court order. If the person does this, he or she may apply to the relevant court to have a committal or sequestration order discharged.415 The person can comply with the original order and end the penalty. This is because civil contempt is primarily remedial or coercive and has successfully compelled compliance with the court’s order.416 Criminal contempt cannot be purged in the same way, although compliance with the order, where it occurs before sentencing will mitigate the penalty.417 The punishment must therefore be completed.

Penalties available to the courtsTop

5.33The usual penalty for civil contempt is the imposition of a fine. Courts exercise the power to imprison for civil contempt with great care and caution. They will not impose an order of committal to prison where the non-compliance has been accidental or unintentional or is of a minor or technical nature.418 Courts do not order imprisonment unless the contempt involves fault or misconduct.419 The maximum term of imprisonment that the District Court, Family Court or Environment Court can impose for breach of an order is three months and the maximum fine is $1,000, while the maximum term of imprisonment that can be imposed by the High Court is two years and there is no limit on the maximum fine.420
5.34In the first Siemer case the Supreme Court decided that, because common law contempt must be tried summarily, section 24(e) of NZBORA restricted the maximum sentence that could be applied to under the level set at which a person was guaranteed the right to a jury trial.421 At the time of the Supreme Court decision that maximum was three months’ of imprisonment. This was the same maximum applying in the District Courts at the time. In 2013, however, section 24(e) was amended and the maximum period was increased to two years. As a consequence, the maximum penalty for contempt at common law also increased to two years, raising issues of parity with penalties available for breaches of District Court orders. The difference in maximum penalties between the courts is now an anomaly which we address below at [5.73]–[5.74].

Application of sentencing principles

5.35When determining an appropriate penalty, courts generally have a discretion. The court must consider the extent of the contempt, the defendant’s motive, and the prejudice suffered by the innocent party.422 A Full Court of the High Court has stated that a penalty ought to be assessed applying a methodology akin to that used for sentencing a criminal offender.423

5.36We consider below at [5.68] and [5.69] whether legislation should expressly apply the methodology and principles in the Sentencing Act 2002 to sentencing for contempt.

361Laws of New Zealand Contempt of Court (online ed) at [54]; Siemer v Solicitor-General [2010], above n 359; Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.
362District Court Act 2016, s 133 provides alternative mechanisms excluding contempt to enforce judgments or orders for the payment of money. High Court Rules 2016, r 17.84(1) provides for the issue of an arrest order to enforce a court order excluding an order to pay a sum of money.
363Section 2 of the Imprisonment for Debt Limitation Amendment Act 1989 repealed s 2 and ss 4–17 of the Imprisonment for Debt Limitation Act 1908.
364See Malevez v Knox [1977] 1 NZLR 463 (SC) at 467; Blomfield v Slater [2015] NZHC 2239 at [9].
365Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) at [36]; and R v Moke [1996] 1 NZLR 263, (1995) 13 CRNZ 386 (CA) at 391. See also McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SC12.02].
366Rule 17.84.
367Rule 17.85.
368Rules are made under s 148 of the Senior Courts Act 2016 for the purposes specified in ss 145–146; s 147 of the Act continued in force the High Court Rules set out in Schedule 2 of the Judicature Act 1908; the relevant rules are in pt 17, subpt 7 of the High Court Rules 2016 – “Arrest orders and sequestration orders”, r 7.48, dealing with the enforcement of interlocutory orders by committal, and r 17.6, dealing with enforcement against non-parties.
369The 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 [2010], above n 359, at [66]–[68].
370Rule 17.84(1). Further, 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; see Summer & Winter Fuels Ltd v Pickens (1990) 4 PRNZ 621 at 623.
371Rule 17.87, which replaced r 610 (as from 1 February 2009).
372Rule 17.86.
373Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA) at 615.
374Morris v Douglas (1996) 10 PRNZ 363 at 366.
375Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union, above n 373, at 615.
376David Eady and ATH Smith Arlidge, Eady and Smith on Contempt (4th ed, Sweet & Maxwell, London, 2011) at [14-129]. As the authors also note this sanction has been used against trade unions in the course of industrial disputes; see also [14-132]. The leading New Zealand case, Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union, above n 373, concerned an application against a trade union.
377Rule 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.
378Rule 8.33.
379See rr 8.21 and 8.33.
380McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SC12.02].
381McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SC12.02].
382See rr 17.84 and 17.87 for the rules governing applications by the parties. An originating application is brought by the Solicitor-General in the same way as it is in other contempt proceedings.
383Rule 17.6(1).
384Siemer v Solicitor-General [2010], above n 359, at [6] and [41].
385This well-established position was expressly noted by the High Court in Solicitor-General v Siemer HC Auckland CIV-2008-404-472, 8 July 2008 at [47].
386District Court Act 2016, s 134. Section 16 of the Family Court Act 1989 applies the District Court Act 2016, with some exceptions, to the Family Court and Family Court Judges in the same manner and to the same extent as it applies to the District Court and District Court Judges. Section 278 of the Resource Management Act 1991 provides that the Environment Court and Environment Court Judges have the same powers that the District Court has in the exercise of its civil jurisdiction.
387Section 136 of the Act makes alternative provision for an order for the recovery of land. It provides that a judgment or an order for the recovery of land may be enforced under a warrant for the recovery of land.
388District Court Act 2016, s 135.
389District Court Act 2016, s 135.
390KLP v RSF [Contempt of court] [2009] NZFLR 833 (HC) at [49]–[50].
391Examples are JMC v AHB FC Dunedin FAM-2008-012-000055, 10 June 2010; TAL v BKL FC Tauranga FAM-2010-070-000207, 5 October 2011; JMC v AJH-B [2012] NZFC 2711; Chief Executive of Ministry of Social Development v ETM [2012] NZFC 434.
392See for example the earlier case Y v Y (1994) 12 FRNZ 176 (FC) at 190 where Judge Boshier considered that the position was simply too unclear to hold a parent who had deliberately obstructed the enforcement of an access order in contempt of court.
393See for example, JMC v AHB, above n 391; JMC v AJH-B, above n 391; Chief Executive of Ministry of Social Development v ETM, above n 391.
394JMC v AJH-B, above n 391, at [51]–[52].
395For example, MAM v HLL [2012] NZFC 4511 at [13].
396Y v Y, above n 392.
397The question was discussed in B v T [1990] NZFLR 373, (1990) 5 FRNZ 328 (FC) at 332 per Judge Inglis QC.
398These four elements are identified in most recent cases. See for example Zhang v King David Investments Ltd [2016] NZHC 3018 at [39]; Shawyer v Thow HC Invercargill CIV-2010-425-000116, 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. In Zhang v King David Investments Ltd at [39], Palmer J referred to the Law Commission’s Issues Paper to summarise the law on this point.
399The court will not hold a person in contempt unless satisfied that the person had proper notice of the order. In 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.
400This position was confirmed by the Court of Appeal in Siemer v Stiassny [2007] NZCA 117, [2008] 1 NZLR 150 at [10]. 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. 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. If there is anything unclear about the scope of an order, it is open to the party to ask the court for clarification. A party should do this rather than take the risk.
401Siemer v Solicitor-General [2010], above n 359, at [33]; Siemer v Stiassny, above n 400, at [11].
402Siemer v Solicitor-General [2013], above n 361, at [188]–[226].
403Siemer v Solicitor-General [2013], above n 361, at [191].
404Eady and Smith, above n 376, at [3-4]–[3-11].
405Eady and Smith, above n 376, at [3-1]. See also the discussion of the difference between civil and criminal contempt in the Supreme Court of Canada’s decision in Poje v British Columbia (Attorney-General) [1953] 1 SCR 516 at 522.
406United Nurses of Alberta v Alberta (Attorney-General) [1992] 1 SCR 901 at 931.
407Julie Maxton “Contempt of Court in New Zealand” (PhD Thesis, University of Auckland, 1990) at 435.
408Solicitor-General for New Zealand v Krieger, above n 398, at [23]. See Jennison v Barker [1972] 2 QB 52 at 62G for Salmon LJ’s decision.
409Maxton, above n 407, at 437.
410Laws of New Zealand Contempt of Court (online ed) at [5].
411See [1.6].
412Siemer v Solicitor-General [2010], above n 359, at [57].
413In his paper, Professor ATH Smith concluded, following his analysis of the Supreme Court’s decision, that “[i]t is not entirely straightforward to say, after the decision in Siemer, what remains of the traditional distinction between civil and criminal contempts”: ATH Smith Reforming the New Zealand Law of Contempt: An Issues/Discussion Paper (Crown Law Office, April 2011) at [6.22].
414Although the statutory basis for appeals differs, appeal rights do not differ in substance. Civil contempt rulings are currently subject to appeal under the Senior Courts Act 2016, s 56 and the District Court Act, s 124, while criminal contempt rulings are subject to appeal under pt 6, subpt 5 of the Criminal Procedure Act 2011.
415Section 193 of the District Court Act 2016 expressly provides for the discharge of a person, if at any time it appears to the satisfaction of a judge of the court that a person detained for contempt ought to be discharged for any reason. The judge may order discharge upon such terms as he or she thinks fit.
416See Queen Elizabeth the Second National Trust v Netherland Holdings Ltd [2014] NZHC 1094, [2015] NZAR 1815 at [23]–[24].
417Forest v R [2016] NZHC 3198 at [14].
418Soljan v Spencer [1984] 1 NZLR 618 (CA); Morris v Douglas, above n 374, at 366.
419In 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 HC Auckland CIV-2009-404-1019, 21 April 2010, at [68].
420Siemer v Solicitor-General [2010], above n 359, at [66]–[68].
421Siemer v Solicitor-General [2010], above n 359, at [67]; and New Zealand Bill of Rights Act 1990, s 24(e).
422Lockwood Group Ltd v Small, above n 419, at [68].
423Solicitor-General v Miss Alice [2007] 2 NZLR 783 (HC) at [88]; also see Grant v Grewal and others [2016] NZHC 1564 at [17].