Contempt of court application workflow
Contempt is a quasi-criminal remedy — the standard of proof is beyond reasonable doubt and liberty is at stake for the alleged contemnor. The application has to plead the elements with particularity and proceed by notice of motion and statement of charge; short-cuts invalidate the process.
This is an 8-step workflow for a contempt of court application under UCPR 2005 (NSW) Part 55 and the court's inherent jurisdiction. It covers civil contempt (breach of an order) and criminal contempt (conduct interfering with the administration of justice).
Before you start
- Signed costs agreement and conflict check
- Copy of the order alleged to have been breached
- Evidence of service of the order, including any penal notice
- Evidence of the alleged breach
The workflow
Confirm the order and service
Confirm the order was clear, unambiguous, and personally served on the alleged contemnor with a penal notice. Any defect is commonly fatal to the application.
Categorise civil or criminal contempt
Categorise the alleged contempt — civil (disobedience of an order in favour of a party) or criminal (conduct calculated to interfere with administration of justice). The process differs for each.
Draft notice of motion and statement of charge
Draft the notice of motion and statement of charge with the elements of contempt particularised — the order, the act or omission, the state of mind, and the facts giving rise to the charge.
Prepare supporting affidavits
Prepare affidavits annexing the order, proof of service, and admissible evidence of each alleged breach. Keep hearsay to a minimum and corroborate by documents.
Serve personally and obtain first return
Serve the motion, statement of charge, and affidavits personally on the alleged contemnor and obtain a first return date. At first return, seek directions for evidence and a hearing date.
Comply with criminal standard protections
Advise the alleged contemnor of the right to silence, the criminal standard of proof, and the right to legal representation — or, if acting for the contemnor, hold the applicant to the criminal standard.
Prepare for hearing
Prepare witness outlines, cross-examination plan, and submissions on each element of each charge. Address wilfulness and casualness where relevant.
Manage sentence or dismissal
On a finding of contempt, prepare submissions on penalty — fine, community service, imprisonment — or, in the case of civil contempt, purge of contempt. On dismissal, manage the costs consequence.
What you will have at the end
Either a finding of contempt with consequent penalty or purge, or dismissal of the application with costs. Enforcement of compliance with the original order is the practical goal.
Common issues
- Order served without a penal notice
- Elements of contempt inadequately particularised
- Criminal standard of proof not applied to evidence
- Wilfulness distinguished from casualness inadequately pleaded
- Contempt used where a less blunt enforcement remedy would suffice
Run this workflow on a real matter
Quillio drafts the statement of charge with particularised elements, proof-of-service affidavit, and hearing submissions. See /practice-areas/litigation-lawyers or start a free trial at /free-trial.
General guide only — not legal advice. Contempt proceedings are quasi-criminal; brief counsel where liberty is in issue.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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