Order 14 Division 6 of the National Court Rules 1983 defines “contemnor”, in Rule 37, as a person guilty or alleged to be guilty of contempt of the Court. The Division then splits in two.
Subdivision B — Rules 38 to 40
Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt committed in the face of the Court or in the hearing of the Court, the Court may —
(a) by oral order direct that the contemnor be brought before the Court; or
(b) issue a warrant for the arrest of the contemnor.
Where a contemnor is brought before the Court, the Court shall —
(a) cause him to be informed orally of the contempt with which he is charged;
(b) require him to make his defence to the charge;
(c) after hearing him, determine the matter of the charge; and
(d) make an order for the punishment or discharge of the contemnor.
Even in the face of the Court, the person must be told the charge and required to make a defence before it is determined. The rule is mandatory in each of its four steps.
That reflects Constitution section 59, under which the minimum requirement of natural justice is to act fairly and be seen to act fairly, and section 37, which guarantees the protection of the law.
Rule 40 — pending disposal, the Court may direct that the contemnor be kept in such custody as the Court may determine, or direct that he be released; and release may be on terms, which may include a requirement that the contemnor give security, in such sum as the Court directs, for his appearance in person.
Subdivision C — Rule 42
(1) Where contempt is committed in connection with proceedings in the Court, an application for punishment must be made by motion on notice in the proceedings — but if separate proceedings have been commenced, they may be continued unless the Court otherwise orders.
(2) Where contempt is committed but not in connection with proceedings in the Court, proceedings must be commenced by originating summons — but if an application is made by motion in any proceedings, it may be heard and disposed of in the latter proceedings, unless the Court otherwise orders.
Rule 41 — this Subdivision does not apply where the Court proceeds under Rules 38 to 40.
| Contempt | Procedure |
|---|---|
| In the face or hearing of the Court | Rules 38–40 — oral order or warrant, oral charge, immediate determination |
| In connection with proceedings — breach of an injunction, disobedience of an order | Motion on notice in the proceedings — r 42(1) |
| Not in connection with proceedings | Originating summons — r 42(2) |
Rules 43 to 45
Rule 43 — statement of charge. A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or originating summons.
Rule 44 — evidence. The evidence in support of the charge shall be by affidavit — though the Court may, on terms, permit evidence to be given otherwise than by affidavit.
Rule 45 — service. The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.
The statement of charge must specify the contempt. A general allegation of disobedience does not comply. Identify the order, the term breached, and the act or omission relied on — a person facing possible imprisonment is entitled to know precisely what is alleged.
The evidence must be by affidavit, prepared under Order 11 Division 3 — Form 50, first person, numbered paragraphs, every page signed.
Everything must be served personally — the motion or summons, the statement of charge, and the affidavits. Not the motion alone.
What must have happened first
A judgement shall not be enforced by committal or sequestration unless a minute of the judgement is served personally on the person bound, and, where the judgment requires an act within a specified time, the minute is so served before that time expires.
Where the person bound is a corporation, a minute in Form 56 must also be served personally on the officer whose committal is sought.
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 within the time, or disobey.
Rules 46 and 47
Where notice of a motion for punishment has been filed or proceedings commenced, and it appears to the Court that the contemnor is likely to abscond or otherwise withdraw himself from the jurisdiction, the Court may issue a warrant in Form 64 for the arrest of the contemnor and his detention in custody until he is brought before the Court — unless he in the meantime gives security, in such manner and sum as the Court directs, for his appearance in person to answer the charge and to submit to the judgement or order of the Court.
Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court or of any other court, the Court may direct the Registrar to apply by motion for, or to commence proceedings for, punishment.
That does not affect the right of any other person to bring such proceedings. It matters because contempt is not simply a private remedy between parties — it protects the administration of justice, and the Court may set the process in motion itself.
On the consequences, see whether someone can be jailed for disobeying an order.
Sources
- National Court Rules 1983 — O 6 r 17; O 11 Div 3; O 13 rr 5–8, 12, 44; O 14 rr 37–47, Div 6; Forms 56, 64
- Constitution — ss 37, 42, 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.