High Court blurred the line between civil and criminal contempt

Fennelly J (nem diss): Appeal against High Court order committing the appellant to prison for contempt of court in failing to obey court order requiring him to remove large volumes of polluting waste from his parents’ family farm – local authority received an anonymous complaint to the effect that illegal disposal of waste was taking place in an old quarry on the lands - Council applied to the High Court for orders against the respondents requiring them to discontinue the holding, recovery or disposal of waste on the lands, to mitigate the effects of what had already taken place, to excavate and remove all waste held on the lands and dispose of it at a suitably licensed facility – trial judge ordered the respondents to “discontinue with immediate effect the holding recovery or disposal of waste” at the lands - the restraining aspect of the order has been observed - no works of remediation whatever have in fact taken place - council applied to the High Court for orders for attachment and committal – appellant explained his failure to comply with the order by reference to personal and family difficulties which frustrated his ability to deal with or to have access to the lands - explained the circumstances in which he claimed not to have enabled to obtain access to the lands – gave an explanation as to his lack of means – stated that he believed the Greyhound Group was responsible for the dumping and informed the court of his proposed litigation against that company – trial judge held that the proposed case against Greyhound at that stage to be thoroughly unconvincing – trial judge considered the financial condition of the appellant – appealed on the grounds the High Court erred in imposing a punitive order on the appellant, in particular in making what was described as an “ unless” order on a punitive rather than a coercive basis – argued that the High Court failed to have any or any adequate regard to the uncontradicted evidence of the appellant regarding his inability, on financial grounds, to comply with the order of the Court, in particular by acceding to assertions during submissions made by counsel for the respondent – that the High Court committed the appellant for contempt by reference to the assets owned by or available to the second-named respondent – that the High Court erred in failing to have proper regard to the consequences of an order for committal on the appellant, his liberty and his livelihood – that a high threshold is required to activate the Court’s jurisdiction to impose a punitive, fixed term sentence on a contemnor – that the Court, on a committal application, should concern itself with the contemnor’s conduct in relation to the order – that no evidence to contradict the appellant’s evidence was adduced – that the court should not make an order committing a person for contempt of an order when it was demonstrable that it was impossible for that person to comply with the order – that it was inappropriate for trial judge to take into account the ownership of the family farm as a ground for rejecting his claimed financial inability to comply with the order when this was not a point made by or on behalf of the council – local authority argued that there was a heavy burden on a person seeking to establish impossibility - contempt of court - principles affecting the exercise of the jurisdiction to punish in cases of civil contempt –
judgment unacceptably blurs the line between civil and criminal contempt.

McKechnie J (concurring): whether civil contempt is exclusively coercive or can have a punitive element – clear the trial judge wanted the works done within a timeframe - unclear whether the appellant was to serve six months only, or a longer period if subsequently directed – not legally sustainable - if the intention of the High Court was purely coercive, which is likely, the detention should have been indefinite in duration - if, on the other hand, the intention was punitive, the sentence had to be one for a term certain and could only be in respect of past events - trial judge inadvertently conflated his coercive and punitive powers and in effect merged or rolled both into one - does not disturb the underlying finding that the third named respondent was guilty of contempt.