Case: Australian Building Construction Employees' and Builders Labourers' Federation v Viner (1982) 63 FLR 253
Outcome: cited
The power of the English courts to punish for contempt of court at the date of commencement of the Judiciary Act was clearly limited to the power to fine or the power to imprison or, in the case of a corporation, to order sequestration of the assets of the corporation. Rule 11.04.1(a) of the High Court Rules 2004 (Cth) presently provides that, in the case of a natural person, the order may be 'that the contemnor pay a fine, be committed to prison, or both pay a fine and be committed to prison'. In Siminton at [74], the Full Court relied upon r 11.04 of the High Court Rules as removing any doubt as to whether this Court could impose a fine for contempt of court, and as making it clear that both a fine and committal to prison were available penalties. Given that it is possible to include in the one order both a fine and a term of imprisonment, there appears to be no sound reason why the two powers should not be exercised by imposing a fine, with a term of imprisonment in default of payment of the fine, or part of the fine, in order to enforce the payment. In Viner v Australian Building Construction Employees' and Builders Labourers' Federation (No 3) (1982) 63 FLR 242, Keely J made such an order. The order was set aside by the Full Court in Australian Building Construction Employees' and Builders Labourers' Federation v Viner (1982) 63 FLR 253, but not on the ground that it was beyond power. In Australian Industrial Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia &amp; Ors [2001] FCA 774 (2001) 188 ALR 653 at [17] Merkel J suggested that, as a matter of practice in an order fining a contemnor, the Court ought always to make provision for enforcement of that order, in the event that the fine is not paid. His Honour suggested that, in most cases, it would be sufficient for the order to provide that, in default of payment, the district registrar must apply to the Court for directions concerning the enforcement of the order. If that were done, there seems little doubt that the Court would have power to impose a sentence of imprisonment upon the application for directions for enforcement. If that be the case, there seems to be no reason why the Court could not impose a sentence of imprisonment in default of payment of the fine, or part of the fine, in the first place. I am not to be taken as suggesting that the Court ought to do this in every case. There will undoubtedly be many cases in which the Court takes the view that a contempt is insufficiently serious to warrant imprisonment, and that the contemnor's means are such that other enforcement methods will be sufficient to enable the fine to be collected, if it is not paid in accordance with the order. I am satisfied, however, that a sentence of imprisonment in default of payment of a fine, or part of a fine, is a course within the powers of this Court. 64 Although commenced by notice of motion entitled in the principal proceeding, the application for punishment for contempt of court is to be regarded as a separate proceeding in its own right. See Viner v Australian Building Construction Employees' and Builders Labourers' Federation (No 1) (1981) 5 FLR 5 at 27 32 and Australian Building Construction Employees' and Builders Labourers' Federation v Viner (1982) 63 FLR 253 at 266 per Evatt and Deane JJ. Having been found guilty of contempt of court, Ms Bell should be ordered to pay the costs of that proceeding. No occasion appears for departing from the usual order that costs follow the event, particularly as the impecuniosity of the losing party is not regarded as a ground for refraining from making an order as to costs in most circumstances. Further, it is appropriate that the order for costs in respect of the contempt proceeding be on an indemnity basis. In effect, the applicant applies for punishment for contempt of court to vindicate the authority of the Court. He, or the creditors indemnifying him in the principal proceeding, ought not be out of pocket for costs for performing their function on behalf of the Court. Although it is clear that the proceeding for contempt is to be regarded as a separate proceeding from the principal proceeding, for the avoidance of doubt, I should make an order pursuant to O 62 r 3(2) of the Federal Court Rules that the costs of the contempt proceeding be paid forthwith.