February 11, 2016
Most of you probably have your own idea of what contempt is and how it would play out in Court. Perhaps Jim Carey in Liar Liar, copping a blasting for telling an inconvenient truth, or Harvey Specter in Suits getting threatened for flagrantly embarrassing a lesser skilled judge. Because of these traditional portrayals, you may have formed the belief that a punishment for contempt reserved only for a judge or the Court in the face of the most serious instances of direct disrespect, but you would be mistaken. In fact, contempt is a remedy open to any litigant, much like any other interlocutory application, and can be the most powerful of all. In addition, its relevance spans beyond criminal law, but also for civil litigants.
To put it in context, the perfect example of contempt in practice can be found in a family law property division scenario, which we occasionally take on for our loyal commercial clients. In such cases, both parties have an obligation for full and frank disclosure of all financial matters, which begins even before Court proceedings are commenced and is ongoing throughout, irrespective of whether the party is an applicant (plaintiff) or a respondent (defendant). Obviously, at least one of the parties (usually the respondent) has an incentive to avoid disclosure: generally, the less that is disclosed, the smaller the net marital asset pool available for division by the Court, and the more that party gets to keep. Needless to say, the temptation for that party to abuse the process of the Court is high.
What we see sometimes in practice is the more gutsy, delinquent respondents will typically represent themselves, usually so they can appear to have no money and / or little to no understanding of their obligations, and either blatantly fail to disclose assets, pretend they have no knowledge and access to information, or strategically disclose some assets and liabilities and conceal others. However, after a nasty separation, it is commonplace for an applicant to remember all the money and financial information their ex has disclosed throughout the relationship. The combination of such recollections and a lack of disclosure typically incites the applicant to fight harder, rather than to move on, and perhaps rightly so in some cases. A good actor in the Family Court or the Federal Circuit Court – which are both notoriously backlogged to the point where the waiting list for a final hearing can be up to three years – can manage to either fool the Court into believing them, or create enough frustration to effectively force the judge to decide to progress the case without the further disclosure, or simply leave the judge with no option to extend the time for disclosure and adjourn the matter in order to get through the rest of the day’s list. Often in these Courts, the matter will not get another date for six months, even if it is only a minor procedural directions hearing, as opposed to a final trial. It goes without saying that the process can be extremely frustrating for the applicant, and in some cases, the consequences can be wider reaching, such as the exhaustion of their financial resources before getting anywhere substantial in the case. In addition, the Court cannot make any property division orders unless and until it is satisfied that it is aware of the complete nature and extent of all assets and liabilities of both parties, and that it is in the interests of justice to make the orders sought (or any orders for that matter), so in the case where it is obvious that there is outstanding information, the matter could drag out indefinitely. So what can be done?
Without any plausible and real information indicating that a party is either being untruthful or has only made partial disclosure, you will not get very far at all. The first step a thorough and diligent lawyer will take is to conduct their own searches and enquiries of the other side. Although there can be a cost of around $20.00 or so per search fee, it is generally money very well spent if something seems odd about the other side’s conduct of the case. In Australia, it is easy to conduct a name search to identify any companies a person is involved with, and work from there. Similarly, in New South Wales, it is relatively easy to conduct name searches for other business entities and also real properties (houses, apartments etc.), and to work from there. This is the starting point. In some jurisdictions, such as the Family Court and the Federal Circuit Court, information about cases are available publicly online, such as the Orders of the Court made on various occasions, past Court dates and lists of documents filed in the proceedings. In most jurisdictions, even where this information is not publicly available, a solicitor can gain private access and retrieve the same information. In addition, parties are entitled to inspect the Court file, and generally, the other side will need to serve you with copies of all documents filed in Court. Using just these two sources as examples, it is possible to identify discrepancies in what a party has effectively told the Court, and what the reality is. If there is a material difference that is likely to have an impact on the case, then you might be onto something.
Where the circumstances you have discovered show clear, multiple breaches of Orders of the Court, for example, you may be in a position to take further, more serious action of your own accord. In a case such as a family law property division matter, a party can apply to the Court to impose sanctions on the other side for failure to comply with Court Orders if a person has contravened such orders without a reasonable excuse. Those sanctions can include the imposition of a significant fine or good behavior bond, or even a term of imprisonment, and even though the case is not a criminal prosecution. In more serious cases, where it can be proven that the person has actually flagrantly challenged the authority of the Court, the punishment will be more severe. In either case, the Court can also impose case-specific consequences, such as compelling third parties to produce documents or attend Court for cross-examination, setting aside a respondent’s defence, determining the case as if it were undefended and making a costs order, or in the case of an applicant, dismissing their case with costs.
Applications for such remedies can be made in much the same way as any other application in a case. It is also worth noting that similar regimes exist in other jurisdictions and for a wide range of other types of civil cases also. However, as these are civil cases and the implications of the applications are very serious, caution should be taken where proof is scant or the conduct complained of is relatively minor, as costs may be awarded to the other party if the application is unsuccessful, and the Court is reluctant to make findings of contempt or contraventions unless the facts are irrefutable and the conduct or effect is inexcusable. In saying that, often the threat of an application based on contempt or contraventions will produce the desired effect, or at least a warning from the judge on the first directions hearing of the application will. Even still, these applications are not steps that should be taken without the guidance of an experienced and skilled lawyer.
As always, feel free to contact us about this or related issues at any time.