Plaintiffs v Defendant

Plaintiffs v Defendant - [2013] VSC 572 - VSC 2013 case summary — Zoe

[90]

The distinction, not recognized in Scotland, which has often been made between civil and criminal contempt seems to have originated in the seventeenth century [...] The existence of the distinction has been recognized in judgments of this Court: R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section; John Fairfax & Sons Pty. Ltd. v. McRae; Australian Consolidated Press Ltd. v. Morgan. The principal theoretical basis of the distinction is that disobedience to the process and orders of the court in civil proceedings is said to be a civil wrong, a matter between party and party, enforcement being for the private benefit or interest of the party seeking enforcement, whereas impeding the administration of justice is a public wrong. A secondary basis for the distinction is that the main purpose of sanctions for disobedience in civil proceedings is coercive rather than punitive: Ansah v. Ansah.

The distinction has been attended by some practical consequences connected with procedure, onus of proof, right of appeal, mode of punishment, privilege from arrest, pardon and power to release an offender (Harnon, Civil and Criminal Contempts of Court, Modern Law Review, vol. 25 (1962), p. 179), though differences in approach to these matters have largely disappeared in more recent times. According to some authorities, criminal, but not civil, contempt could be punished by the imposition of a fine. More recent decisions indicate that a fine may be imposed when the contempt consists of wilful disobedience to a court order in the sense that the disobedience is not casual, accidental or unintentional. The correctness of this approach is, of course, a critical issue in this appeal.

In the light of these complexities it is not surprising that the distinction between the two classes of contempt has been subjected to increasing scrutiny. The theoretical distinction between the two classes overlooks the underlying rationale of every exercise of the contempt power, namely that it is necessary to uphold and protect the effective administration of justice. Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced. As the authors of Borrie and Lowe's Law of Contempt, 2nd ed. (1983) say, at p. 3:

[92]

See also Canada Metal Co. Ltd. v. Canadian Broadcasting Corporation [No. 2]. There is, accordingly, a public interest in the exercise of the contempt power in cases of disobedience to an order, though Lord Diplock suggested in Attorney-General v. Times Newspapers Ltd., that "no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement".

The unsatisfactory nature of the distinction is attested by the arbitrary classification of some instances of disobedience to an order as examples of criminal contempts. They include wrongful interference with a ward of a court, whether contumacious or not (Wellesley v. Duke of Beaufort; Scott v. Scott), disobedience to an order for delivery up of a child (Corcoran v. Corcoran, but cf. Reg. v. Barnardo), any breach of an order forbidding molestation of a person (Stourton v. Stourton) and contempts by officers of the court and others who have a special relationship with the courts, for example, solicitors (Seldon v. Wilde) and liquidators: In re Grantham Wholesale Fruit Vegetable and Potato Merchants Ltd. These instances of criminal contempt on the part of solicitors and liquidators may be explained on the footing that they involve disciplinary action against officers of the court.

A rather similar notion lies behind the cases in which disobedience to an order which is wilful or contumacious amounts to criminal contempt: see Morgan, per Barwick C.J., per Windeyer J. The point in these cases is that wilful disobedience to a court's order, especially if it occurs in circumstances where the conduct amounts to public defiance, involves a public injury and this calls into play a penal or disciplinary jurisdiction to deal with criminal contempt: Tony Poje v. Attorney-General (British Columbia); Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd.; Jennison v. Baker.

It is apparent from the foregoing discussion that very great difficulty has been experienced in maintaining the distinction between civil and criminal contempts and, in particular, in elaborating a precise and certain criterion which divides one class of contempt from the other. The extremities to which the distinction has sometimes driven the courts is strikingly illustrated by the absurd proposition, which derives some comfort from Seaward v. Paterson, that the defendant who disobeys an injunction granted against him commits a civil contempt whereas the stranger who aids and abets him is guilty of criminal contempt: see the criticisms of this proposition by Lord Atkinson in Scott, and by Cross J. in Phonographic Performance. The concept that disobedience to an order becomes criminal when the primary purpose of exercising the power changes from vindication of the rights of the plaintiff to vindication of the authority of the court is both complex and artificial. Salmon L.J. was right when he said in Jennison v. Baker, speaking with reference to the enforcement of an injunction generally, that "[t]he two objects are, in my view, inextricably intermixed". When the defendant's disobedience is casual it may readily appear that the primary purpose of exercising the power is to vindicate the plaintiff's rights. On the other hand, when the disobedience is accompanied by public defiance it may as readily be seen that the primary purpose of exercising the power is vindication of the court's authority. But the classification in terms of primary purpose is a more complex and artificial undertaking when the punishment is for wilful disobedience unaccompanied by defiance. There is, accordingly, much to be said for the view that all contempts should be punished as if they are quasi-criminal in character, notwithstanding the adoption of the contrary view by some members of this Court in the decisions to which we have already referred.[35]

[94]

The distinction between proceedings in the public interest and those that are coercive or remedial in the interest of the private individual is not, in our view, a satisfactory basis for the distinction usually made between civil and criminal contempt. Even allowing for those orders which, if breached, involve criminal contempt and for contumacious breach, the distinction does not support the general proposition that breach of an order in civil proceedings is a civil contempt. That is because there are some circumstances in which the breach simply cannot be remedied. That can be illustrated by reference to the orders in this case. The order that the appellant not deal with his assets in a way that reduced their value below $200,000 could not be remedied once his assets were reduced in such a way that he was in no position to raise that, or any lesser sum of money, to satisfy the judgment debt. And when the contempt proceedings were commenced, ie after judgment had been entered and the appellant's total inability to satisfy the judgment ascertained, the purpose of the disclosure order could no longer be achieved.

At best, the distinction between proceedings in the public interest and proceedings which are coercive or remedial in the interest of the private individual supports a separate category of civil contempt to the extent that it clearly appears that the proceedings are remedial or coercive in nature. If that approach were to be adopted, it would follow that the contempt alleged in this case should have been classified as criminal, not civil, with the consequence the criminal standard of proof should have been applied. However, in our view, there are fundamental problems even with that approach.

One problem is that there is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the individual. Even when proceedings are taken by the individual to secure the benefit of an order or undertaking that has not been complied with, there is also a public interest aspect in the sense that the proceedings also vindicate the court's authority. Moreover, the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.

Nor can the dichotomy between proceedings in the public interest and proceedings in the interest of the individual be maintained on the basis that some cases involve an interference with the administration of justice and others merely involve an interference with individual rights. All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.

Moreover, there is considerable difficulty with the notion that, in some cases, the purpose or object of the proceedings is punitive and, in others, the purpose or object is remedial or coercive. It should at once be noted that the purpose of the proceedings is not the same as the purpose or object of the individual bringing the proceedings and it is well recognised that, notwithstanding that proceedings are brought by an individual to secure the benefit of an order or undertaking, a "penal or disciplinary jurisdiction" may also be called into play. It has been held that the "penal or disciplinary" jurisdiction may be exercised even when the parties have settled their differences and do not wish to proceed further. Thus, in Canadian Transport v Alsbury, Sidney Smith JA rejected the submission that settlement precluded further proceedings saying:

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