FEATURE
begin the civil contempt process without complying with the rules for service. In deciding whether to dispense with the service requirements, the primary factor the Court took into consideration was that the accused in both knew the judgment or order and its contents, even without being properly served. In Animal Liberation, a spokesperson for the accused told the Court in an affidavit that they were declining to comply with the order.55 In Zhao, the judgment was served on the accused’s solicitors,56 and the accused had sworn several affidavits in relation to the order.57 These decisions are clearly efficient — it would be a waste of time and money if the applicant had to restart contempt proceedings after serving the judgment or order properly when the accused was already aware. The Court currently requires a very high level of proof of the accused’s knowledge before it will exercise the discretion, which significantly reduces the chance that a person will be charged with contempt when they were actually unaware of the judgment or order. Maintaining this discretion as it stands is both just and efficient.
CONCLUSION Ensuring that the civil contempt process is just often goes hand in hand with making sure it is efficient, but sometimes those objectives are at odds. Since civil contempt is a quasi-criminal issue with serious ramifications, when the two objects come into conflict, justice for the accused should generally prevail, but that principle should not be applied rigidly. Therefore, the standard criminal procedural rights should apply to the civil contempt process unless the accused wants to waive them. The two-stage process should stay, even if it is very inefficient, to ensure the accused is not charged with contempt when it is not warranted. While the applicant’s right to waive proceedings should mostly stay the same, since it is just and efficient for both the applicant and the accused, the public’s interest should sometimes take precedence. The judge’s discretion to dispense with the service requirements if they have a very good reason to believe the accused knows about the judgment or order is both just and efficient, and so it should be retained. Creating a civil contempt process that is
38 THE BULLETIN December 2020
just and efficient for the applicant is easy: make it fast and simple. However, what is just and efficient for the accused and the public should also be taken into account. While the applicant should be able to get a judgment or order made in their favour enforced, the severity of that enforcement mechanism means their interests should not be given priority. Successfully bringing a contempt charge will eventually be just for the applicant, but, unfortunately for them and the public, the process should prioritise the interests of the accused. B Endnotes 1 Witham v Holloway (1995) 183 CLR 525, 530 (‘Witham’). 2 Ibid 531; Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 106 (‘Mudginberri’); Hearne v Street (2008) 235 CLR 125, 136 [25] (Kirby J). 3 Uniform Civil Rules 2020 r 1.5 (‘UCR’). The UCR came into operation on 18 May 2020: South Australia, South Australian Government Gazette, No 39, 14 May 2020, 1200; South Australia, South Australian Government Gazette, No 41, 18 May 2020, 1391; UCR (n 3) r 1.2. 4 UCR (n 3) r 205.2. 5 Ibid rr 103.2, 182.2 6 Ibid r 205.1. 7 Ibid r 201.2(3). 8 Ibid r 205.5(1). 9 Ibid r 205.5(2). 10 Maxilift Australia Pty Ltd v Donnelly [2020] SASC 8, [11] (‘Maxilift [2020]’), quoting Mane Market Pty Ltd v Temple (Supreme Court of South Australia, Debelle J, 27 November 1998), [5] (‘Mane Market 1998’). 11 UCR (n 3) r 205.7. 12 Ibid r 205.7(2)(d). 13 Ibid r 205.7(3). 14 Ibid r 205.8(2). 15 Ibid. 16 Ibid r 205.8(5). 17 Australian Law Reform Commission, Contempt (Report No 35, June 1987) 299 [531] (‘ALRC Report’); Law Reform Commission of Western Australia, Review of the Law of Contempt (Report No 93, June 2003) 106. 18 Supreme Court Civil Rules 2006 rr 303, 305, 306 (‘SCCR 2006’). 19 Supreme Court Civil Rules 1987 r 93. 20 UCR (n 3) r 1.5. 21 SCCR 2006 (n 18) r 3(d). 22 Naomi Burstyner and Tania Sourdin, ‘Justice Delayed is Justice Denied’ (2014) 4(1) Victoria University Law and Justice Journal 46. 23 Witham (n 1) 539 (McHugh J); Mudginberri (n 2) 106. 24 Australian Law Reform Commission, Contempt: Disruption, Disobedience and Deliberate Interference (Discussion Paper No 27, April 1986) 77 (‘ALRC Discussion Paper’); Mudginberri (n 2) 106. 25 See, eg, Witham (n 1) 532–3 (Brennan, Deane, Toohey, and Gaudron JJ). 26 Maxilift [2020] (n 10) [15]–[16]; Mudginberri (n 2)
106–7; Testel Australia Pty Ltd v KRG Electrics Pty Ltd [2014] SASC 119, [6], [23]–[24]; Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, 485 [149]; Phillis v Szenkovics (2001) 81 SASR 202, 214 [102]; Witham (n 1) 532–3 (Brennan, Deane, Toohey, and Gaudron JJ). 27 Director of Public Prosecutions Act 1991 (SA) s 7(1)(da). 28 South Australia, Parliamentary Debates, Legislative Council, 13 April 1994, 410 (Kenneth Griffin, Attorney-General). 29 Mudginberri (n 2) 109. 30 Ibid 106; ALRC Report (n 17) 307 [520]. 31 Witham (n 1) 533–4 (Brennan, Deane, Toohey, and Gaudron JJ). 32 (1992) 177 CLR 292, 315. 33 Australian Securities and Investments Commission v Reid [No 1] (2006) 151 FCR 540, 545 [21]. 34 UCR (n 3) r 205.7(a). 35 R v Cook; Ex parte Twigg (1980) 147 CLR 15, 25; Consolidated Press Ltd v McRae (1955) 93 CLR 325, 333; Maslen v Official Receiver (1947) 74 CLR 602, 611. 36 John Duns, ‘The Statutory Injunction: An Analysis’ (1989) 17 Melbourne University Law Review 56, 70. 37 Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115 (‘Maxilift [2019]’); Maxilift [2020] (n 10). 38 Maxilift [2020] (n 10) [6]–[12]. 39 Maxilift [2019] (n 37) [7]. 40 Maxilift [2020] (n 10) [1]. 41 Ibid. 42 Mane Market 1998 (n 10); Mane Market Pty Ltd v Temple [1999] SASC 271 (‘Mane Market 1999’); Registrar of the Supreme Court of South Australia v Temple [2000] SASC 26; Registrar, Supreme Court (SA) v Temple [No 2] (2000) 77 SASR 1; Registrar, Supreme Court (SA) v Temple [No 3] (2000) 77 SASR 8; Registrar of the Supreme Court of South Australia v Southern Hotels Pty Ltd (2001) 78 SASR 453 (‘Southern Hotels’). 43 Mane Market 1999 (n 42) [3]. 44 Southern Hotels (n 42). 45 Mane Market 1998 (n 10) [5]. 46 [2018] SASC 70. 47 Ibid [83]. 48 Ibid. 49 Witham (n 1) 548–9 (McHugh J). 50 ALRC Report (n 17) 312 [531]; ALRC Discussion Paper (n 24) 100–1, 102–3. 51 Director of Public Prosecutions South Australia, Statement of Prosecution Policy and Guidelines (October 2014) 7; Geoffrey Flatman and Mirko Bagaric, ‘The Victim and the Prosecutor: The Relevance of Victims in Prosecution Decision Making’ (2001) 6(2) Deakin Law Review 238, 251; Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Consultation Paper, July 2015) 43 [5.7]. 52 Law Reform Commission of Western Australia (n 17) 103. 53 UCR (n 3) r 201.2(3). 54 Zhao v AST Investments Pty Ltd [No 2] [2019] SASC 174, [14] (‘Zhao’); UCR (n 3) rr 12.1(1)–(2)(a). 55 Proceedings for an Alleged Contempt of Court by Animal Liberation (SA) Inc [2002] SASC 71, [12]. 56 Zhao (n 54) [18]. 57 Ibid [19].
