FEATURE
The limits of civil contempt in the South Australian Supreme Court: Time for an alternative approach to non-compliance? LACHLAN BLAKE, HONOURS STUDENT, ADELAIDE LAW SCHOOL
T
he process of contempt in civil litigation in the South Australian Supreme Court (the Supreme Court) is a ‘last resort’ coercive power that allows the Court to compel litigious parties who obstruct or ignore court orders to obey and observe its authority. It is hindered by limitations that prevent it from adequately ensuring a just and efficient court process and, as a result, has been subjected to a number of law reform inquiries spanning many Australian jurisdictions.1 I argue that contempt in the Supreme Court has severely limited utility in dealing with non-compliance with court orders during proceedings due to its ambiguities and propensity to result in drawn-out disputes and unjust outcomes. These flaws are compounded by the overall disutility of coercion in the context of non-compliance. To compensate for this, law reform would allow the Supreme Court to use more flexible options to address and resolve non-compliance. In this context I focus on, and provide a critical analysis of, the oftrecommended creation of ‘non-compliance proceedings’ to replace contempt and encourage more utile, diverse and adaptable methods to manage Supreme Court process.
BACKGROUND OF CONTEMPT IN SOUTH AUSTRALIA The law of contempt in South Australia stems from both common law and statutory provisions and comes in a variety of forms.2 For a recent statutory example, see r 156.13 of the Uniform Civil Rules 2020 (SA) (UCR)3 which allows for contempt proceedings to be initiated where a party fails to comply with a subpoena. The Supreme Court can make orders of contempt for disobedience of court orders, for the dissemination of information that it has ordered not to be published, and for extremely disrespectful
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behaviour.4 The disobedience model of contempt is favoured in the civil courts and will be the focus of this paper. The law of contempt is designed to use coercion to ensure obedience to the Court, for the benefit of the applicant (where a contempt order is applied for by a party) as well as the court system and its perceived authority in society.5 There is some concern among superior courts that without the threat of punishment, parties bound by court orders will simply disregard them and thus endanger the ‘very foundation’ of the administration of justice and rule of law, leading to a collapse into anarchy.6 In this paper I suggest that coercion is not so central to the authority of the Supreme Court, or so effective as a process management tool, as these statements propose: other less severe, less coercive methods could be utilised to achieve a more just and efficient court process.
CONTEMPT AND NON-COMPLIANCE: WHAT ARE THE LIMITATIONS? Contempt has potentially extreme effects on the justice and efficiency of court proceedings. The common law recognises this and prescribes the use of contempt only if circumstances are drastic, or as a ‘final resort’.7 The UCR also recognise this, requiring that an applicant for contempt proceedings must first establish a prima facie case for contempt by providing details of the allegation and a supporting affidavit.8 The Court must also be satisfied that there are ‘reasonable grounds’ to suspect contempt to allow an interlocutory hearing, where further submissions may be made.9 Case law asserts that the Court must also have regard to ‘all the circumstances giving rise to the matter’ in order to avoid the commencement of contempt proceedings where there are ‘good reasons’ for not
commencing them.10 In McDonald v South Australia (McDonald) Sulan J helpfully lists relevant factors for judicial consideration, including reasons for the misconduct, its seriousness and relevant ‘personal circumstances’.11 Finally, the Supreme Court has also established sentencing principles to be used in contempt proceedings, which go some way towards informing judicial decision making and avoiding drawn-out disputes. These include considerations of the deterrence effect of the charge, seriousness of the contempt and reasons for the contempt.12 Nonetheless, despite these safeguards a number of limitations persist that make contempt unjust, inefficient and liable to fail at its goal of ensuring compliance. Ambiguity, Confusion and Paucity of Guidance South Australian contempt law bears ambiguities that make it both inefficient and unjust in dealing with non-compliance. One of the most conspicuous ambiguities is that there are no ‘upper limits’ for coercive penalties, which are seemingly restricted to the imposition of fines or a sentence of imprisonment, nor any statutory guidance for penalty selection.13 It was once stated by Perry J in the Supreme Court that there may be an inherent power to impose penalties ‘apart from those expressly referred to in the rules’.14 However, in that case the penalty of imprisonment was still selected as it was deemed an ‘appropriate vindication of the due administration of justice’ in light of a ‘conscious defiance of the authority of the Court’.15 Further ambiguity regarding penalty selection arises because criminal and civil contempt are often indistinct and conflated in South Australia.16 Previously, instead of considering the two as separate doctrines, Courts have simply noted that more serious contempt ought to
