Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 20 – Enforcement of Non-Money Orders
- Part 1 – Preliminary
- [890] Definition for ch 20
- [891] Enforcement of non-money orders
- [892] Enforcement by or against a non-party
- [893] Amount recoverable from enforcement
- [894] Enforcement period
- [895] Stay of enforcement
- [896] Order for possession of land
- [897] Order for delivery of or payment of goods
- [898] Order to perform or abstain from an act
- [899] Substituted performance
- [900] Undertakings
- [901-903] Repealed
- [904] Prerequisite to enforcement by contempt or seizing property
- [905] Conditional order
- [906] Procedure
- [907] Application to set aside enforcement
- [908] Issue and enforcement of enforcement warrant
- [909] Renewal of enforcement warrant
- [910] Return of enforcement warrant
- [911] Priority of enforcement warrants
- [912] Enforcement throughout Queensland
- [913] Prerequisites to enforcement warrant for possession
- [914] Procedure
- [915] Enforcement warrant for possession
- [917] Property that may be seized under enforcement warrant
- [918] Prerequisite for enforcement warrant authorising seizure and detention of property
- [919] Enforcement against officer of corporation
- [920] Return of seized property
- [921] Definition for pt 7
- [922] Arrest
- [923] Custody
- [924] Hearing
- [925] Application of div 3
- [926] Procedure under div 3
- [927] Arrest
- [928] Application by registrar
- [929] Warrant
- [930] Punishment
- [931] Imprisonment
- [932] Costs
- [933] Constitution of court
- [934] Application
- [935] Issue of warrant for defendant’s arrest
- [936] Enforcement of warrant for defendant’s arrest
- [937] Costs of enforcement
- [938] Service of warrant and claim
- [939] Record of enforcement
- [940] Procedure after arrest
- [941] Costs of enforcement
- [942] Court powers
- [943] Failure to comply with conditions
- [944] Review
- [945] Restriction on further applications
- [946] Costs
- Division 1--Preliminary
- Division 2--Contempt in face or hearing of court
- Division 3--Application for punishment for contempt
- Division 4--General
[890] Definition for ch 20 go to top
[891] Enforcement of non-money orders go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[892] Enforcement by or against a non-party go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[893] Amount recoverable from enforcement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[894] Enforcement period go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[895] Stay of enforcement go to top
Rule 895 does not identify how the discretion ought be exercised. Cases relating to a stay of a money order have considered whether a stay were “appropriate”, where the balance of convenience lay, and the principle that a plaintiff having succeeded is entitled to the fruits of judgment, unless good reason to the contrary is shown: J Wright Enterprises Pty Ltd (in liq) v Port Ballidu Pty Ltd (No 2) [2010] QSC 214, [25] (White J).
Rule 895 confers power on the court, in appropriate circumstances, to stay an enforcement warrant: Quaresmini v Perpetual Trustee Co Ltd [2011] QCA 74, p.5 (Fraser JA, White JA and P Lyons J agreeing).
[896] Order for possession of land go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[897] Order for delivery of or payment of goods go to top
Repealed.
[898] Order to perform or abstain from an act go to top
Where there is disobedience of an order requiring an act to be done, the power to punish for contempt will be used only in extreme cases and where it is necessary to make the order effective: Thorpe v Marr’s Furniture Removals Pty Ltd [2000] QSC 279, [15] (Mackenzie J).
Where there is a failure to produce a thing (such as a business record or a good) in accordance with an order of the court to do so, there is authority for the proposition that a plaintiff seeking to establish contempt needs to prove that the business record or good was in the possession of the defendant at the time the order was made: Thorpe v Marr’s Furniture Removals Pty Ltd [2000] QSC 279, [11], [13] (Mackenzie J).
[899] Substituted performance go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[900] Undertakings go to top
The true meaning of an undertaking to the court can be ascertained by applying ordinary principles of construction, including a consideration of the factual matrix known to both parties: Evenco Pty Ltd v Australian Building Construction Employees & Builders Labourers Association (Qld) Branch [2001] 2 Qd R 118, [60] (Williams JA, McMurdo P and Pincus JA agreeing).
A person cannot be guilty of contempt for breaking the terms of an undertaking unless its terms are clear. Accordingly, a person cannot be said to have committed contempt if one of two potential constructions of the undertaking has been broken: Evenco Pty Ltd v Australian Building Construction Employees & Builders Labourers Association (Qld) Branch [2001] 2 Qd R 118, [48] (Williams JA, McMurdo P and Pincus JA agreeing).
Where an undertaking is given in absolute and unqualified terms, failure to obey the undertaking to the letter will amount to a wilful breach, even though obedience might arguably be unreasonably onerous: Lade & Co Pty Ltd v Black [2006] 2 Qd R 531; [2006] QCA 294, [45] (Keane JA, Jones J agreeing).
If the facts of a case enable it to be fairly concluded that the alleged contemnor has disobeyed the order or undertaking, then that is sufficient to constitute contempt at general law: Lade & Co Pty Ltd v Black [2006] 2 Qd R 531; [2006] QCA 294, [63] (Keane JA, Jones J agreeing).
The word “contempt” as used in rr 900 and 930 applies to contempt of all kinds: Lade & Co Pty Ltd v Black [2006] 2 Qd R 531; [2006] QCA 294, [68] (Keane JA, Jones J agreeing).
[901-903] Repealed go to top
Repealed
[904] Prerequisite to enforcement by contempt or seizing property go to top
The exception to the requirement for personal service in r 904(2) is consistent with the position at common law. At common law, there is no broad rule that the accused must be proved to have been fully aware of the precise terms of the order or undertaking. In relation to a prohibitory order, it is sufficient that he or she “knows the substance of the prohibition and knowingly acts contrary to it” or “has knowledge at the level that would induce an honest, reasonable person to check the precise terms of the order”: Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 233, [21] (Philippides J), citing Madeira v Roggette Pty Ltd [1990] 2 Qd R 357, 365-366, affirmed in Madeira v Roggette Pty Ltd (No 2) [1992] 1 Qd R 294.
[905] Conditional order go to top
Where an order is subject to a condition, the time for fulfilment of which is specified in the order, the order does not require the person to perform the act specified in the condition: Vicary v State of Queensland [2009] QSC 284, [70] (P Lyons J), citing Asia Pacific Glass Pty Ltd v Sindea Trading Co Pty Ltd (No 2) (2004) 47 ASCR 737, [13].
Rule 905(2) contemplates the making of an order which would avoid the consequence of non-satisfaction of a condition. The conferral of the power to make an order avoiding the consequences of the failure to satisfy a condition is remedial, and should not be read narrowly: Vicary v State of Queensland [2009] QSC 284, [77] (P Lyons J).
In order to obtain the benefit of an extension of time for compliance, for the purpose of r 905(2), it is not necessary that the application to extend be made within the initial time for compliance with the order: Vicary v State of Queensland [2009] QSC 284, [73]-[78] (P Lyons J).
[906] Procedure go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[907] Application to set aside enforcement go to top
Any application to stay a non-money order should be made to the court with the appropriate jurisdiction to enforce the non-money order: Randell v Charter [2003] QCA 180, [35] (Jerrard JA).
[908] Issue and enforcement of enforcement warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[909] Renewal of enforcement warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[910] Return of enforcement warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[911] Priority of enforcement warrants go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[912] Enforcement throughout Queensland go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[913] Prerequisites to enforcement warrant for possession go to top
An enforcement warrant directs an enforcement officer to enter upon the land, and to deliver possession of it to the person named in the warrant as the person entitled to possession. A person in possession of the land, and in particular a person in possession under a lease or tenancy agreement, is a person against whom an order for the possession of land is to be enforced by an enforcement warrant for the purpose of r 913(1): Bank of Queensland Limited v Bottomley [2015] QSC 329, [10] (P Lyons J).
Rule 913(2) is designed to meet the situation where a person, other than the person against whom an order for the possession of land was made, is in possession of land pursuant to some agreement with the person against whom the order was made, for example a tenant under a tenancy agreement. In those circumstances the rules quite properly recognise that further steps should be taken before the warrant is issued: Equitiloan Securities Pty Ltd v Corozo Pty Ltd [2001] 1 Qd R 243, 243-244 (Williams J).
Rule 913(2) does not require that leave of the court be obtained where an order for the possession of land is made against a company, and it is in possession of the land through its agents: Equitiloan Securities Pty Ltd v Corozo Pty Ltd [2001] 1 Qd R 243, 244 (Williams J).
[914] Procedure go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[915] Enforcement warrant for possession go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[916] Enforcement warrant for seizure and delivery of goods go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[917] Property that may be seized under enforcement warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[918] Prerequisite for enforcement warrant authorising seizure and detention of property go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[919] Enforcement against officer of corporation go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[920] Return of seized property go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 1--Preliminary
[921] Definition for pt 7 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2--Contempt in face or hearing of court
[922] Arrest go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[923] Custody go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[924] Hearing go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3--Application for punishment for contempt
[925] Application of div 3 go to top
Rule 925(1)(d) allows the Supreme Court to punish contempts of inferior courts: Attorney-General (Qld) v Lovitt [2003] QSC 279, [50] (Chesterman J).
[926] Procedure under div 3 go to top
Because of the seriousness of contempt proceedings, the application and supporting affidavits must be served on the respondent personally. The requirement to serve materials personally applies equally to service of notification of a new hearing date for the return of an application that a person be found in contempt: Costello v Courtney [2001] Qd R 481, [13] (Wilson J), citing with approval Chiltern District Council v Keane [1985] 1 WLR 619.
The requirement under r 926(1) to specify the contempt in the initiating application needs to be viewed sensibly. How such specification is achieved will vary from case to case. In most cases, the allegation (or charge) of contempt will stand alone in the application but it may be appropriate in another case to annex a document to it. In other cases, particulars might be attached to the application. Provided any such annexures or attachments are incorporated by reference in, and provided with, the application, there is no difficulty with such an approach because those documents will form part of the application. Strict compliance with the procedural rules will still be achieved but in a way that, in a particular case, perhaps better conforms with the objectives under r 5 of the UCPR to “facilitate the just and expeditious resolution of the real issues ... at a minimum of expense” and to avoid “undue delay, expense and technicality”. What is important is that the recipient of such an application is left in no doubt about the gist of the charges being brought against him or her: O’Connor v Hough [2016] QSC 4, [40] (Burns J).
[927] Arrest go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[928] Application by registrar go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 4--General
[929] Warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[930] Punishment go to top
Power to punish for contempt
The jurisdiction of the court to punish for contempt is both inherent and provided for under Chapter 20 Part 7: Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 233, [15] (Philippides J), citing Bakir v Doueihi [2001] QSC 414, [5]-[9].
Chapter 20 Part 7 Division 3 applies to a contempt committed outside the court: Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 233, [16] (Philippides J).
The UCPR make provision for contempt proceedings in order to provide for the enforcement of the process and orders of the court and the punishment of acts which impede the due administration of justice. In the case of civil proceedings, the main purpose of the sanctions provided by the UCPR in the event of failure to comply with court orders is coercive, rather than punitive: Hafele Australia Pty Ltd v Maggbury Pty Ltd [2000] QCA 397, [36] (Muir J, McPherson JA and Thomas JA agreeing).
The power to impose penalties in cases of civil contempt is to be exercised so as to ensure that court orders are complied with, to deter conduct in contravention of court orders and to maintain public confidence in the due administration of justice: Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 233, [18] (Philippides J), citing Australian Competition and Consumer Commission v Dynacast (Int) Pty Ltd [2007] FCA 429, [87]; R v Fletcher; Ex parte Kisch (1935) 52 CLR 248.
A party can be liable for a breach of a court order, in circumstances where the breach has been committed by an employee of the party acting within the course of employment: Evenco Pty Ltd v Australian Building Construction Employees & Builders Labourers Association (Qld) Branch [2001] 2 Qd R 118, [5] (McMurdo P), [102] (Williams JA), (cf [27], Pincus JA dissenting).
Establishing contempt
In Lade & Co Pty Ltd v Black [2006] 2 Qd R 531; [2006] QCA 294, [65] Keane JA, (with whom Jones J agreed), held that the following propositions have been established in relation to the general law of contempt:
(a) disobedience of an order of the court, or an undertaking to the court, is aptly described as a contempt of court;
(b) it is not necessary to show that disobedience is contumacious or defiant;
(c) punishment by way of a fine or imprisonment as a remedy for contempt may be imposed where the disobedience of a court order is more than “casual, accidental or unintentional”;
(d) all actions asserting contempt must be proved beyond reasonable doubt.
A deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute wilful disobedience unless it is “casual, accidental or unintentional”. The test to establish contempt does not require proof of any specific mental element for the act or omission: Lade & Co Pty Ltd v Black [2006] 2 Qd R 531; [2006] QCA 294, [104]-[105] (Jones J), citing the plurality in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 113.
The applicant must prove the allegedly contemptuous commission or omission was wilful. This does not require proof of stubborn opposition to or obstinate disregard of the court’s order, although the presence of a specific intent to defy the authority of the court will be relevant to penalty: Burton v Spencer [2015] QSC 187, [11] (Henry J), citing Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; ASIC v 1st State Home Loans Pty Ltd [2002] QSC 55, [4].
Conduct which tends to prejudice a fair trial or undermine public faith and confidence in the administration of justice may be punishable as contempt of court: Attorney-General (Qld) v Lovitt [2003] QSC 279, [52] (Chesterman J).
Under r 930 a court may deal with contempt on a case-by-case basis according, inter alia, to the degree of personal fault revealed by the circumstances of the case: Lade & Co Pty Ltd v Black [2006] 2 Qd R 531; [2006] QCA 294, [71] (Keane JA, Jones JA agreeing).
Because of r 930, there is a statutory basis in Queensland for the imposition of a fine which does not require that it be established that the breach of the order was worse than “casual, accidental or unintentional”: Lade & Co Pty Ltd v Black [2006] 2 Qd R 531; [2006] QCA 294, [67] (Keane JA, Jones JA agreeing).
Punishment
In exercising discretion under r 930, the court ought take into consideration the general policy of the law against the imposition of punitive orders on those who are not guilty of wilful misconduct: Lade & Co Pty Ltd v Black [2006] 2 Qd R 531; [2006] QCA 294, [71] (Keane JA, Jones JA agreeing).
Rule 930(2), although increasing the range of penalties which may be imposed, does not alter the essential character of contempt, as it was described by Justice Hayne in Re Colina; Ex parte Torney (1999) 200 CLR 386, [109] and does not have the effect that a contemnor is, for all purposes, an “offender” within the meaning of the Penalties and Sentences Act 1992 (Qld): O’Connor v Witness G [2013] QSC 281, p.8 (M Wilson J), cited with approval in [2014] 203 LGERA 117 [2014] QCA 215, [75] (Muir JA, Gotterson JA and Ann Lyons J agreeing).
Rule 930(2) is permissive, not mandatory, in terms and facilitative in its purpose. It does not require the court to make only an order that may be made under the Penalties and Sentences Act 1992 (Qld): [2014] 203 LGERA 117 [2014] QCA 215, [72] (Muir JA, Gotterson JA and Ann Lyons J agreeing).
The usual penalty in the case of a corporate contemnor is a fine. However, the court has a discretion to decline to make any order even though it is satisfied that a contempt has been committed: Attorney-General for State of Queensland v Win Television Qld Pty Ltd [2003] QSC 157, [11] (Wilson J), citing Registrar of the Court of Appeal v John Fairfax Group Pty Ltd (Unreported, New South Wales Court of Appeal, 21 April 1993); Director of Public Prosecutions (New South Wales) v John Fairfax & Sons Ltd (1987) 8 NSWLR 732, 742; R v Sun Newspapers Pty Ltd; ex parte Attorney-General [1993] 1 Qd R 682, 690.
Whether party in contempt will be heard
There is no absolute rule that a court will not hear a party in contempt. The court should treat the question of whether a party in contempt will be heard as one of discretion which, in general terms, depends on where the interests of justice lie: Hwang v Lawrie [2014] 1 Qd R 562; [2013] QCA 204, [22], [24] (Holmes JA, Fraser JA and Mullins J agreeing).
The circumstances will be rare where a person in contempt is precluded from appealing against the order, disobedience of which has put that person in contempt: Hwang v Lawrie [2014] 1 Qd R 562; [2013] QCA 204, [28] (Holmes JA, Fraser JA and Mullins J agreeing), citing Motorola Credit Corp v Uzan (No 2) [2004] 1 WLR 113, 128.
[931] Imprisonment go to top
Rule 931(2) contemplates that the court may discharge a contemnor before the end of the term of imprisonment. A contemnor could ordinarily expect to be released upon his or her compliance with the original order. A contemnor can purge his or her contempt and, to a large extent “carries the keys of [his or her] prison in [his or her] pocket”: Cam v ASI Development Co Pty Ltd [2007] QCA 317, (Keane JA, Muir JA and Douglas J agreeing), citing Re Freston (1883) 11 QBD 545, 557; Re Nevitt (1902) 117 F 448, 461.
Rule 931(2) may be consistent with the common law, under which there is no maximum period for which a contemnor might be imprisoned: O’Connor v Witness G [2013] QSC 281, p.8 (M Wilson J); see also [2014] 203 LGERA 117 [2014] QCA 215, [72] (Muir JA, Gotterson JA and Ann Lyons J agreeing).
[932] Costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[933] Constitution of court go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[934] Application go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[935] Issue of warrant for defendant’s arrest go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[936] Enforcement of warrant for defendant’s arrest go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[937] Costs of enforcement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[938] Service of warrant and claim go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[939] Record of enforcement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[940] Procedure after arrest go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[941] Costs of enforcement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[942] Court powers go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[943] Failure to comply with conditions go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[944] Review go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[945] Restriction on further applications go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[946] Costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[947] Return of enforcement warrant go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.