Imprisonment for disobeying a civil order is the most serious sanction the National Court can impose. The National Court Rules 1983 surround it with safeguards, and every one of them must be satisfied.
Rule 49
(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to prison or fine or both.
(2) Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both.
(3) The Court may make an order for punishment on terms, including a suspension of punishment, or a suspension where the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
Committal is not the only outcome, and rarely the first. Sub-rule (3) allows punishment on terms — including suspension, and suspension conditional on security for good behaviour. In practice the object is compliance, not punishment, and an order suspended on terms of compliance achieves it.
A corporation cannot be imprisoned. Sub-rule (2) substitutes sequestration — the taking of its property — or a fine. But note Order 13 Rule 5(2)(c): where the person bound is a corporation, the judgment may be enforced by committal of any officer and sequestration of the property of any officer. Directors are personally exposed.
Where a contemnor is committed to prison for a term, the Court may order his discharge before the expiry of the term.
Rule 50 confirms that committal for civil contempt is coercive rather than purely punitive. A contemnor who purges the contempt by complying may apply for discharge, and the Court may order it before the expiry of the term.
The safeguards
- An order of the Court. Order 13 Rule 12 — a person shall not be committed except by or under an order of the Court.
- A minute served personally. Order 13 Rule 7(1) — a judgment shall not be enforced by committal or sequestration unless a minute is served personally on the person bound, and where the judgment requires an act within a specified time, served before that time expires.
- For a corporation’s officer, a second service. Rule 7(2) — a minute in Form 56 must also be served personally on the officer.
- The warning notice. Rule 7(3) — the minute must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property if they fail to do the act in time, or disobey.
- The contempt process itself. Order 14 Rules 42 to 45 — motion or originating summons, a statement of charge specifying the contempt, evidence by affidavit, and personal service of all three on the contemnor.
Order 13 Rule 7(6) — where a person has notice of the judgment by being present when it was directed to be entered, or by being notified of its terms whether by telephone, telegram or otherwise, it may be enforced by committal notwithstanding that service has not been effected.
Rule 7(7) — the Court may dispense with service under this Rule.
Note also Order 9 Rule 15(2): where a party has a solicitor, an order need not be served personally for enforcement by committal — but it shall not be enforced by committal if that person shows that he did not have notice or knowledge of the order within sufficient time for compliance. And a solicitor who fails without reasonable cause to notify the client of such an order shall be guilty of professional misconduct.
Rule 48, and detention
A warrant in Form 65 for the arrest and detention of a contemnor shall be addressed to the Sheriff and may be issued under the hand of the Judge presiding in the Court directing the arrest or detention.
Order 13 Rule 44 — a person arrested by the Sheriff on civil process shall be lodged in the corrective institution nearest to the place of his arrest, and be there detained until the Court orders his discharge.
Distinguish two warrants: Form 65 under Order 14 Rule 48, for a contemnor; and the warrant under Order 13 Rule 6(1)(e), for a person who defaults in attending as ordered, which secures their production before the Court rather than punishing them. A third is Form 64 under Order 14 Rule 46, where a contemnor is likely to abscond — and that one is discharged if security is given.
Liberty of the person
Constitution section 42 protects liberty of the person, and permits deprivation of liberty only in the cases it specifies — among them, in consequence of the order of a court.
Section 37 guarantees the protection of the law, and section 57 allows the National Court to enforce those rights — on the application of any person who has an interest in their protection and enforcement, or on its own initiative. See human rights proceedings.
That is why the procedural requirements are not technicalities. A committal order made without a specified statement of charge, without personal service, or without the Rule 7(3) warning is liable to be set aside — and the person’s detention would be unlawful.
For both sides
- Check the order was entered and sealed — Order 12 Rule 18(1)(c).
- Check the minute bore the Rule 7(3) warning, naming the persons concerned.
- Prove personal service of the minute, before the time for compliance expired.
- File a statement of charge specifying the contempt — the order, the term, the breach.
- Support it by affidavit, and serve everything personally.
- Consider asking for suspended punishment on terms of compliance under Rule 49(3) — usually the more effective outcome.
Comply first, if compliance is still possible — a contempt purged before the hearing changes the complexion of the application entirely, and Rule 50 permits discharge even after committal.
Then examine each safeguard: was the minute served personally and in time; did it carry the warning; does the statement of charge specify the contempt; was everything served personally. Where the order itself was ambiguous, that is a defence — a person cannot be imprisoned for failing to do something the order did not clearly require.
Sources
- National Court Rules 1983 — O 9 r 15; O 12 r 18; O 13 rr 5–8, 12, 44; O 14 rr 37–50, Div 6; Forms 56, 64, 65
- Constitution — ss 37, 42, 57, 59
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.