The limits of civil contempt in the South Australian Supreme Court: Time for an alternative approach to non-compliance? – By Lachlan Blake

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

The 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can make orders of contempt for disobedience of court orders, for the dissemination of information that it has ordered not to be published, and for extremely disrespectful behaviour.4 The disobedience model of contempt is favoured in the civil courts and will be the focus of this paper.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

be penalised more severely.17 Under the UCR contempt ‘committed in the face of the Court’ (criminal contempt)18 remains undefined, and the process for dealing with both civil and criminal contempt is identical.19 At common law, contempt ‘in the face of court’ occurs where a party behaves in a disruptive, ‘contumacious’ way before the Court.20 The continued confusion between the doctrines increases risk of excessive penalties where the Court perceives some insult in the behaviour of the contemnor. This in turn increases the chance of drawn-out disputes and lengthy contempt proceedings leading only to the extensive punishment of the non-complying party, potentially to the benefit of no one. Regardless, the Court’s arsenal is limited to the imposition of fines and imprisonment in the context of contempt and there remains little guidance for penalty selection. This is particularly egregious as these very ambiguities also raise concerns about proportionality and excessiveness of these penalties.

Excessive Penalties

As a consequence of ambiguity in relation to penalty, there is little to curtail courts from issuing excessive, unjust or inefficient penalties.21 There are no defined ‘upper limits’ for penalties, allowing for ‘open-ended’ punishments such as debts that continue to accrue, or imprisonment that lasts, until an order is obeyed.22 The arbitrary nature of the power to impose hypothetically unlimited incarceration does not seem proportionate to the aims of contempt, to ensure obeyance and recognition of the Court’s authority. Interestingly, the Supreme Court has previously recognised the likelihood of unjust outcomes and the possibility that courts will have to monitor compliance for years, possibly intervening in detention where a contemnor will simply never comply.23 In Scotland, maximum penalties have been set in order to rectify this issue.24 In order to avoid such unjust outcomes, and the necessity for extensive periods of court supervision, it is recommended that the Scottish approach to setting maximum penalties be emulated in South Australia.

There are a number of existing processes used by the Court to ensure compliance that do not require the compelling of good behaviour from the non-complying party through use of coercive penalties. Where, for example, the Supreme Court is experiencing issues of non-compliance with an order to pay debts, it may issue a warrant of sale.25 These warrants do not run the risk of relying upon the whims of a particularly difficult or determined party. They also allow the Court discretion to determine the scope and aims of the warrant and have safeguards for circumstances in which it is impossible for the errant party to obey.26 For example, the aforementioned warrant of sale cannot be ordered in bankruptcy proceedings.27 This allows parties relief, and ensures that court orders are carried out, in a speedier and more just fashion. These options avoid many of the pitfalls of contempt and raise questions as to the relevance of contempt in modern civil procedure.

Finally, these issues seem to disproportionately affect economically disadvantaged contemnors who are less able to pay fines and, as a consequence of inability to pay, may be targeted with imprisonment. Sufficiently economically privileged contemnors may be able to weather open-ended fines in pursuit of whatever goal is behind their noncompliance, and the Supreme Court may feel less obliged to use imprisonment where a contemnor has ‘deep pockets’28 The lack of guidance, ambiguous and theoretically unlimited powers, given the coercive nature of contempt, work in tandem to greatly limit its effectiveness in managing court process and introduce a disparity in treatment based on the socioeconomic status of the party.

Suitability of Contempt for Dealing with Non-Compliance

Having established the propensity of contempt to waste both court and litigants’ time and cause potentially unjust outcomes, it is worth exploring further whether fining or imprisoning a party will actually ensure compliance, and if so, whether the process is proportionate to achieving this goal. A number of reasons have been suggested as to why parties may be determined to refuse or fail to comply with orders.29 I posit that one could refuse to comply for emotional, ideological, or cultural reasons, or simply be unable to comply for mental, physical or material reasons. Motivations underlying the conduct can vary; a Union, for example, may deliberately disobey an order to cease a picket line to show ideological commitment.30 A person may disobey an order because they fail to understand its scope and lack an understanding of the law.31 There is no reason to assume that coercion with fines or imprisonment will ensure that someone who is sufficiently determined to resist, or unable to properly obey, will comply with an order. A history of non-compliance only indicates a determination to resist and an increased likelihood of continued non-compliance in the face of the supposed deterrence effect of contempt charges.

In fact, taking a strongly adversarial position by enforcing harsh penalties requested by an opposing party, or indeed by positioning the Supreme Court as the non-complying party’s adversary, may only increase oppositional behaviour.32 This would clearly result in an unjust and inefficient outcome, serving only to extend the dispute, potentially indefinitely. I refer to the case of an Indigenous activist who was jailed for criminal contempt after he and the Judge entered an inimical dispute over the Court’s authority.33 In this case, oppositional tactics were not able to defuse the dispute, seemingly escalating it instead. It has been suggested by the Australian Law Reform Commission (ALRC) that penalties should not be imposed ‘unless compliance is clearly within the capacity of the person bound, no reasonable alternative method of enforcement exists, and the sanction is likely to be effective’.34 This would mean that sufficiently determined non-compliers ought to be dealt with by processes other than contempt, such as the aforementioned warrants of sale. However, it is not always possible to be sure that these considerations will be met before penalties are imposed. These extensive limitations of contempt necessitate an examination of how alternative, less coercive and oppositional methods for managing court process could be adopted.

REFORMS TO CONTEMPT: NONCOMPLIANCE PROCEEDINGS?

In this section I will focus on one of the central suggestions of the ALRC: to replace disobedience contempt with a series of ‘non-compliance proceedings’ which could be instituted to promote

compliance and, if necessary, coerce the disobeying party to comply.35 Essentially, these proceedings would be a fleshed-out, fully codified version of contempt, with a number of procedural safeguards designed to avoid the pitfalls of the confused criminal and civil doctrines, allow diverse and flexible penalties, provide guidance to courts and fill in many of the ‘grey areas’ identified above.36 While the purpose of these proceedings is to ensure that the Court’s coercive power is only engaged when necessary, and they emphasise the assessment of a party’s ability to comply, care should be taken that they do not result in similar problematic outcomes. In this section I will present some critical and constructive viewpoints in this context.

As I have argued previously, it is difficult to assess the necessity of coercion and the disobedient party’s likelihood of compliance. The ALRC suggests that the respondent to a non-compliance application ought to prove that sanctions will be ineffective and that limits on the maximum penalties be imposed, which somewhat combats these concerns.37 However, the fact that the onus is on the respondent here is concerning: reasons for continued non-compliance despite sanctions may be illogical to the Court, which may not accept submissions this would render the penalty ineffective. As such, there should be an explicit necessity for the applicant party to establish the likelihood of compliance.

Further, in some ways, the imposition of maximum penalties may advantage non-complying parties that have the ability to pay large fines. Care should still be taken that the Supreme Court does not disproportionately target poorer non-compliers with detention-based penalties, nor should it disproportionately target wealthier non-compliers with fines. Perhaps this consideration ought to be enshrined in statute, perhaps in the UCR, by ensuring judges take economic justice into account when formulating non-compliance measures and calculate penalties in a manner appropriate to actually coerce the non-complying party. In practice this would require a de-emphasis of fines where a non-complying party is impecunious, or perhaps appropriate leniency ought to be given where a party may struggle to pay fines. This is because a default on payment of fines may lead to a custodial sentence regardless of any initial avoidance of imprisonment as a sentence.

In this context, it is interesting to examine Australian family law, where structured non-compliance proceedings have been present for some time. The Family Court recommends the use of dispute resolution to resolve compliance issues and allows access to comparatively broad penalties and solutions, including less financially significant ones such as participation in community service, or the variation of an initial order.38 Interestingly, Victorian family law allows courts to order parties to attend counselling.39 I argue that emulating these provisions could be effective in increasing the likelihood of compliance for those with less objectively ‘rational’ reasons for non-compliance. Less severe penalties and solutions are also more proportionate to the aim of ensuring compliance.

Formal non-compliance measures for the Supreme Court should include elements of alternative dispute resolution (ADR) and an understanding of any emotional, psychological or other factor behind the disobeying party’s actions. These principles have been found to help predict future compliance, increase rates of compliance and reduce oppositional behaviour.40 This more cooperative approach would both ameliorate noncompliance and prevent it from occurring in the first place, avoiding escalation of disputes and reducing determination to disobey.41 Ultimately coercive measures have a place, but the expansion of the Court’s non-compliance arsenal is crucial in resolving compliance disputes in a more just and efficient manner, potentially avoiding lengthy court appearances during non-compliance proceedings. Of course, the Supreme Court already has the power to refer parties to ADR at any stage in proceedings42 but the reformed law should emphasise this method of recourse, perhaps containing provisions which explicitly direct the Supreme Court to examine the possibility of referral to ADR in circumstances of non-compliance.

Endnotes 1 See Senate Legal and Constitutional Affairs

References Committee, Parliament of Australia,

Law of Contempt (Report, 2017) <https:// www.lawcouncil.asn.au/docs/4e8f6b8f-8ad4e711-93fb-005056be13b5/3368%20-%20

Law%20of%20Contempt.pdf>; Law Reform

Commission of Western Australia, Contempt in The Face of The Court (Discussion Paper No 92(1), August 2001) <https://www.lrc.justice. wa.gov.au/_files/P93(I)DP.pdf>; Australian Law Reform Commission, Contempt (Report No 35, December 1986) <https://www.alrc.gov. au/publication/contempt-alrc-report-35/>; Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) < CONCLUSION

The law of civil contempt in South Australia is a flawed legal doctrine, entwined with notions of coerced respect for the Supreme Court. Its usefulness as a weapon of last resort to ensure compliance with judicial orders is questionable and it can result in unjust and inefficient outcomes. This is due to its ambiguities, the lack of guidance it provides to the Supreme Court and its overall unsuitability in ensuring compliance. While the Supreme Court has the option of using existing alternatives, the law should be reformed to incorporate other methods to resolve issues of noncompliance. Non-compliance proceedings would provide guidance to the Supreme Court and approach disobedience in a more flexible, less coercive manner, especially where provisions ensuring economic justice and factors behind noncompliance are considered, and where recourse to ADR is possible. Far from ensuring a collapse into anarchy, the loss of the law of contempt as a last resort will produce more just, more efficient outcomes in South Australian litigation, and actually achieve its goal of ensuring compliance. B

https://www.lawreform.vic.gov.au/projects/ contempt-court-judicial-proceedings-reportsact-1958-and-enforcement-processes/ contempt>. 2 Supreme Court Act 1935 (SA) s 38(2); Enforcement of Judgments Act 1991 (SA) s 12; Uniform Civil

Rules 2020 (SA) rr 156.13, 155.2(3)(a)-(b), ch 17, pt 5 (‘UCR’). See also UCR rr 11.1 (2), 103.2,

205.5; Maxilift Australia Pty Ltd v Donnelly [2019]

SASC 115. 3 Commenced Monday 18 May 2020. See South

Australia, South Australian Government Gazette, No 41, 18 May 2020. 4 See, eg s 69A(1) Evidence Act 1929 (SA) for

Sub Judice contempt; r 103.2 Uniform Civil Rules (SA) for disobedience contempt and r 205.3(1) for ‘contempt in the face of the court’. See also Senate Legal and Constitutional Affairs

References Committee (n 1) 9-12. 5 Law Institute of Victoria v Nagle [2005] 6 VR 235, 237 (Gillard J); Attorney-General v Times Newspapers

Ltd [1974] AC 273, 307 (Diplock LJ); Law

Reform Commission of Western Australia (n 1) 1; Australian Law Reform Commission (n 1) 515; Victorian Law Reform Commission (n 1) 70 [6.4]. 6 Law Institute of Victoria v Nagle (n 2) [5]; Vaysman v Deckers Outdoor Corporation Inc (2011) 276 ALR 596, [8] [9] (‘Vaysman’); Witham v Holloway (1995) 121 ALR 401, 406. 7 Vaysman (n 6) 638–40; Victorian Law Reform

Commission (n 2) 75 [6.33]. 8 UCR (n 4) r 205.5(1). 9 Ibid r 205.5(2). 10 McDonald v South Australia [2008] SASC 309 [16] (Sulan J). See also Maxilift Australia Pty Ltd v

Donnelly (n 2) [13], [22]. 11 McDonald v South Australia (n 9) [16]. 12 See Registrar of the Supreme Court of South Australia v Zappia (No 2) [2003] SASC 327 [45]-[48] (‘Zappia’). 13 UCR (n 2) r 205.8 (2). 14 Registrar of the Supreme Court of South Australia v Temple (No 3) [2000] SASC 199 [19] (Perry J) (‘Temple’). 15 Ibid [50]-[58]. 16 Witham v Holloway (n 6), 408. But see Maxilift

Australia Pty Ltd v Donnelly (n 2) [11] citing Mane

Market Pty Ltd v Temple [1998] SASC S6985 [5]-[6]. 17 Registrar of the Supreme Court v Herald & Weekly

Times Ltd [2004] SASC 129 [21]; Temple (n 13) [50]. 18 Victorian Law Reform Commission (n 1) 19 [2.46]. 19 UCR (n 4) r 205.3(1), ch 17, pt 5, div 4. 20 Witham v Holloway (n 6) 414; Judicial College of Victoria, ‘Chapter 8: Contempt in The Face of The Court’ Victorian Criminal Proceedings

Manual (Web Page, 26 June 2014) <https:// www.judicialcollege.vic.edu.au/eManuals/

VCPM/48733.htm>. See also Registrar of Supreme

Court v Herald & Weekly Times Ltd [2004] SASC 129 [45]. 21 For an example of a reconsideration of a contempt charge for similar reasons, see

Vaysman (n 2) [185]-[187]: in this case it was determined that a sentence of imprisonment for contempt was ‘manifestly excessive’, with

Bromberg J stating that it was not apparent why the primary judge was of the opinion that imprisonment was required. See also Kennedy v

Lovell [2002] WASCA 226 [44]: in this case the

Full Court of the Supreme Court of Western

Australia unanimously ruled that a sentence of imprisonment should be reduced to a fine, with

Murray J stating that imprisonment would not serve a ‘useful purpose’ in the circumstances. 22 Victorian Law Reform Commission (n 1) 73 [6.21]; Australian Law Reform Commission (n 2) 292 [493]. 23 Zappia (n 11) [24]. 24 Contempt of Court Act 1981 (UK) 15 (1). 25 See Victorian Law Reform Commission 75 [6.34]; Enforcement of Judgments Act (n 2) s 7. 26 See Enforcement of Judgments Act (n 2) ss 7, 8. 27 Ibid, s 7(2). 28 See Vaysman (n 2). In Vaysman at [64] Gray

J remarked that, had he been sentencing the contemnor, he would have imposed a sentence of imprisonment as the contemnor was

bankrupt. Further, at [54] Gray J considered the appropriateness of fines for impecunious contemnors and discusses the imposition of imprisonment where they default on payment of fine. Finally, Courts have previously considered financial circumstances of contemnors in formulating charges: see Porter v Steinberg (No 2) [2019] WASC 473 [39], [58]-[59], [62]. 29 See Australian Law Reform Commission (n 2) lv [77]. 30 Cf Australasian Meat Industry Employees Union v

Mudginberri Station Pty Ltd (1986) 161 CLR 98. 31 Cf Australian Securities and Investments Commission v

Matthews (2009) 71 ACSR 279. 32 Tania Sourdin, Alternative Dispute Resolution (Lawbook, 6th ed, 2020) 577 [13.80]. 33 Arthur Gorrie, ‘UPDATE: Gympie Activist

Serves Two Hours for Contempt’ The

Gympie Times (online, 18 December 2017) <https://www.gympietimes.com.au/news/ update-gympie-activist-serves-two-hours-forcontem/3293365/>. 34 See Australian Law Reform Commission (n 2) lv [77]. 35 See ibid lxxxiv-lxxxvii [64]-[84]. 36 Australian Law Reform Commission, Contempt:

Summary of Report (Australian Government

Publishing Service, 1987) 55-6 < https://www. alrc.gov.au/wp-content/uploads/2019/08/ alrc_35_summary.pdf>. 37 Ibid 56; Australian Law Reform Commission (n 2) lxxxv [72], 335 [579]. 38 ‘Compliance with Parenting Orders’ Federal

Circuit Court of Australia (Web Page); Family law

Act 1975 (Cth) div 13A pt VII. 39 Victorian Law Reform Commission (n 1) 76 [6.35]. 40 Sourdin (n 32) 488-89 [11.45], 660 [16.65]. 41 Ibid 34 [1.95], 577 [13.80]. 42 See UCR (n 3) rr 131.3, 131.4.

South Australian Legislation - 1936 and 1975 reprints now online

LUCY BROWN, SECRETARY, SA COMMITTEE, AUSTRALIAN LAW LIBRARIANS’ ASSOCIATION

The Australian Law Librarians’ Association (ALLA) is pleased to announce the availability of a digital version of the 1936 and 1975 reprints of SA acts online.

The digital reprints are the result of a joint project by the ALLA SA committee and the SA Office of Parliamentary Counsel (OPC) to fund the production of digital sets of the historical reprints/consolidations.

The consolidations simplify legislative research as they provide point-in-time versions as at 1936 and 1975.

The 1936 and 1975 reprints are available online on the South Australian legislation website. See https://www.legislation. sa.gov.au/Web/Information/Historical Consolidations/HC.aspx

Special thanks to Louise Langridge (Librarian, Piper Alderman) and Peter Beacham (Manager, Projects & Technology, OPC, Attorney General’s Department SA) for coordinating and delivering the project so quickly. B