The necessity for prior notice to a contemnor before initiating contempt proceedings is not mandated when the contemnor is aware of the order breached.

Nallini Pathmanathan FCJ:

Introduction

[1] Two questions of law arose for consideration before us in this appeal:

(a) Whether on a true construction of O 52 r 2B of the Rules of 2012, prior notice to show cause is to be given to a proposed contemnor before the filing of an ex parte leave application under O 52 r 3 of the Rules of 2012; and

(b) Whether on a true construction of O 52 r 2B of the Rules of 2012, the notice to show cause referred to in O 52 r 2B, means the documents referred to in O 52 r 4(3) of the Rules of 2012.

Background

[2] On 30 September 2019 the Court of Appeal set aside the motion to commence committal proceedings brought by the appellant against the respondent, for failure of the respondent to comply with a conditional stay order dated 21 February 2019. The condition imposed for the stay was that the status quo of the assets relating to a pending probate action were to be preserved. There was an alleged contravention of that condition by the respondent.

The Decision Of The Court Of Appeal

[3] The sole ground on which the Court of Appeal set aside the leave previously granted, was that the appellant failed to issue a Notice to Show Cause seemingly mandatory required under the Court of Appeal's construction of O 52 r 2B of the Rules of 2012. The rationale as gleaned from the written grounds is that r 2B requires mandatory compliance, and failure to do so would result in all subsequent proceedings being rendered invalid.

[4] The Court of Appeal went on to add that the Rules Committee had enacted r 2B with the express purpose of the proposed contemnor being given an opportunity of answering to the notice before any application for leave for contempt is made. The leave application, it was held, could only be made after issuance of the notice and the appropriate time had lapsed, and where the proposed contemnor had given no reply or no satisfactory reply. The further basis for this construction was stated to be that as contempt attracted penal sanctions, any ambiguity had to be resolved in favour of the alleged contemnor.

Our Decision

[5] It appeared to us that the primary consideration was to ascertain the philosophy or rationale behind O 52 r 2B? As submitted by the appellant, it could not be construed in vacuo. It has to be considered in juxtaposition and contextually with O 52 r 2A. The latter deals with contempt in the face of the Court. The contemnor is aware of precisely what it is he has done, and in respect of which he is asked to show cause etc, because a prima facie finding has been made. There is therefore no requirement for a formal notice to be issued by the Court.

[6] But not so in a matter where there has been a failure to comply with an order of Court. Such a contravention is likely to happen months or even years after the Order of Court. The alleged contemnor is not before the Court.

[8] That does not mean either, that O 52 r 2B encapsulates a strict set of procedures that has to be followed meaninglessly, such that several notices are issued sequentially. The law does not believe in surplusage.

[9] The notice referred to in O 52 r 2B is to be issued at the behest of the Court, and not the parties. Private parties do not issue notices to show cause to each other. It is the Court that does. It is after all, the Order of Court which has been breached. And it is therefore the Court that ensures compliance a