The Court of Appeal has settled, for Queensland at least, the important question of whether or not a party who is in contempt of a court order is entitled to appear on an appeal and address the Court? There is very little Australian authority on this point and the Court of Appeal’s determination that the Court has a discretion as to whether or not to permit the contemnor to appear on an appeal would now appear to be the definitive statement on this topic.
The appellant had been found to have exercised undue influence over the respondent and engaged in unconscionable conduct through which she procured the removal of large amounts of money from the respondent’s bank accounts. During the course of the interlocutory stages of the action the appellant had failed to comply with a number of interlocutory orders including orders that the appellant return to Australia and that the appellant not encumber the assets under her control. As to the question of whether or not a contemnor was entitled to make submissions on the appeal the following can be taken from the reasons of the Court of Appeal:
- It appears that in order for the issue to arise a party does not have to have been dealt with by a Court for the alleged contempt. All that is required is that a contempt has, prima facie, been demonstrated to the Court;
- Where a party is in contempt or it has been prima facie demonstrated that such is the case, the Court has a discretion to exercise to as whether or not the party in contempt ought to be allowed to make submissions to the Court. There is no principle that a party who is in contempt is barred from addressing the Court.
- The rule applies where the contempt has occurred in the proceedings in which the alleged contemnor seeks to make submissions (or possibly in proceedings closely associated with those proceedings);
- In the usual case the Court will exercise its discretion to allow a party to be heard on an appeal where the appeal is one in respect of the orders of which it is alleged the party is in contempt.