Move for sequestration of Enoch Burke’s assets for contempt may be a legal first

The intended move by Enoch Burke’s school employer for sequestration, or temporary detention, of his assets for alleged continued contempt of court orders may be the first such application brought against an individual here.

Sequestration applications have been threatened in the past against companies, usually with the effect of the contempt being purged before being heard, but legal sources were unable to identify a single application over past decades being initiated against an individual contemnor.

While some media organisations found in contempt have also faced threats to sequester their assets, sources could not recall any such application ever proceeding.

The Burke case highlights just some of the difficulties confronting plaintiffs and the courts when faced with an individual who, for whatever reason, refuses to purge their contempt.

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It focuses attention on the continuing failure to enact contempt of court legislation despite calls over some two decades for such legislation from, among others, the Supreme Court and the Law Reform Commission (LRC). The absence of legislation means, as the Supreme Court noted in a 2000 judgment, that the law on contempt is in many respects uncertain and in need of clarification by legislation.

In a 1991 report concerning contempt, the LRC noted that sequestration “was and is a process of contempt” and described it as “a drastic remedy designed to coerce rather than punish”.

The commission noted the superior court rules provide four bases for sequestration, including in relation to judgment or orders against a company which are “wilfully disobeyed”.

When assets are sequestered, they remain in the ownership of the affected person but they cannot deal with them until they purge their contempt or until the court orders what should be done with the sequestered assets.

The primary purpose of civil contempt proceedings is coercive but, for criminal contempt, the primary purpose is punitive. Whether or not sequestration might be regarded as primarily coercive or punitive is an issue that has yet to come before the courts.