August 30, 2019

Courting discourteous behaviour in civil hearings

The Contempt of Court Bill 2018 (“Contempt Bill”) passed its third reading in the House on 20 August 2019 and is at the time of writing awaiting royal assent.[1]

The Contempt Bill’s passage is a timely reminder that when attending court – whether as a witness, a supporter, or a party – you are expected to be courteous and respectful to all involved – including the other side. It reinforces that the courtroom is a formal setting, in which higher-than-normal standards of behaviour are expected of all participants.

The Contempt Bill substantially reforms New Zealand’s law of contempt of court with the codification of most forms of contempt, preserving only the High Court’s inherent jurisdiction in relation to forms of contempt not covered by the Contempt Bill.

The Contempt Bill now sets out how to “cite” a person for disruptive behaviour in the courtroom. The term is new, but the powers are not and the Contempt Bill provides clarity for the procedure for dealing what was formerly known as contempt in the face of the court.

Under the Contempt Bill, if a Judge believes any person (including Body Corporates):

a. Wilfully disrupts the proceedings of a court; or

b. Wilfully and without lawful excuse disobeys any order or direction of the court in the course of hearing any proceedings;

The judge may take one (or more) of two actions: order the exclusion of that person from the sitting of the Court, and/or cite the person for disruptive behaviour under section 16 and order them detained in custody for no later than the court rises for the day.

If a person is cited for disruptive behaviour section 17 of the Contempt Bill requires that they are given the opportunity to see and speak with a lawyer and apologise to the Court. However, an apology may not end the matter. Before the Court rises for the day, the Judge must review the matter. If that Judge believes further punishment is necessary, then the Judge must write to the person detained and explain what behaviour was considered disruptive and set the matter down for hearing within the next seven days, before another Judge if necessary.

If set down for hearing the person is dealt with under section 168 of the Criminal Procedure Act 2011 (“CPA”) which allows that person to be granted bail, allowed to go at large, or be remanded in custody pending the hearing. At the hearing, the Judge must consider whether the person is guilty to the criminal standard of proof – beyond reasonable doubt – of the behaviour. If so, they must not be convicted but may still be imprisoned for up to 3 months, or fined for a maximum of $10,000, or ordered to undertake community work up to a maximum of 200 hours.

Despite the application of the CPA, and the requirement of the criminal standard of proof, section 29 of the Contempt Bill makes it clear that this procedure applies across all types of proceedings – civil and criminal – and applies to all persons present in the courtroom in the proceeding.

If you are present in a courtroom during civil proceedings, you must comply with all directions and orders of the judge. Lawyers often give this advice to witnesses and parties to proceedings before going to court as a matter of common sense. But the Contempt Bill solidifies that for all present in the courtroom, if they do not, they could be ordered to leave the room, or the punishment could be detention for the remainder of the day, or worse if the Judge considers it warranted.

While in the courtroom, you should be mindful with how you react and when you speak. Speaking out of turn – such as making comments from the public gallery – could be considered disruptive behaviour. People often hear competing viewpoints during proceedings, and often have strong feelings or viewpoints on what is said. Feeling strongly about this is unavoidable and expected – but it is best to save any response for after Court, as reacting strongly to what is being said in Court is disruptive. It is also rude to everyone present, who are all there with the aim of resolving the dispute – especially the Judge. It is always wise to make a good impression with the Judge, and to give them a chance to hear both sides of a case without interruption to make their decision.

Bear in mind each side will have its turn to speak in Court, so try not to get ‘court’ out.


[1] The Bill will come into force 1 year after the date of Royal Assent, or an earlier date in time if specified by Order in Council: Contempt of Court Bill 2018, cl 2.

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