AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION (QLD BRANCH)

1 On 23 March last I gave judgment in these actions, finding the defendants had committed contempt of court and imposing fines. I invited the parties to make written submissions on the question of costs. I have now received those submissions.

2 In each action the plaintiff seeks an order that the defendants pay its costs taxed as between solicitor and own client save such costs as may have been unreasonably incurred. The defendants in both actions concede that the plaintiff is entitled to an order for costs but submit that those costs should be taxed on the usual, party and party, basis. As well they ask for a limited order for costs against the plaintiff.

3 All parties agree that there is no rule of law or practice that a plaintiff who successfully brings contempt proceedings should have an order for costs on a solicitor and own client basis. There are however a large number of cases in which such an order has been made and the plaintiff submits the present proceedings are appropriate for an order of that type. The defendants in action no. 1794 of 1988 argue that, as a general proposition, indemnity costs are awarded only in these cases where the court finds the contempt proved but does not impose a substantial penalty upon the contemner. Support for this view can certainly be found in McIntyre v. Perkes (1988) 15 NSWLR 417 at 426-7, per Samuels JA. However, indemnity costs are not limited to such occasions. In Madeira v. Roggette Pty Ltd [1990] 2 Qd R 357 an order for costs to be taxed as between solicitor and own client was made where one contemner was imprisoned for two months and another fined a very substantial amount. See at 368-9.

4 The rationale for an award of costs on an indemnity basis where no penalty is imposed but a contempt is proved appears to be that the increased amount which the defendant will have to pay by way of costs is itself a sanction imposed by the court to vindicate the plaintiff's position and as some form of punishment of deterrence.

5 That rationale cannot apply to cases such as at present where the defendants have been ordered to pay significant fines. There is another rationale which can lead to a similar costs order being made in this type of case. It is that in taking proceedings the plaintiff is performing a public service as well as seeking to enforce its own rights. No organ of the state will, in most cases, take action in respect of disobedience to the court's order. Necessarily that action is taken by the party immediately affected by the disobedience. In seeking to protect its own position the plaintiff is maintaining respect for the law and confidence in judicial orders by obtaining from the court a sanction which is appropriate in the particular circumstances. The plaintiff should not be out of pocket by reason of having taken proceedings to advance the public interest. Gibbs CJ, Mason, Wilson and Deane JJ pointed out in their joint judgment in AMIEU v. Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 110:

"... Where there has been wilful disobedience to an order of the court and a measure of contumacy on the part of the defendants, then civil contempt has a dual character, namely, (a) as between the parties to the proceedings, the element of civil execution and (b) as between the party in default and the State, a penal or disciplinary jurisdiction to be exercised by the court in the public interest."

The remarks remain apposite despite the reference to "civil contempt".

6 The same point was made by Rogers A-JA in McIntyre at 436. His Honour said

"As well as enforcing his own rights, the party bringing proceedings for contempt is, at the same time, vindicating the order of the court and ensuring that its infringement does not go without scrutiny and, if appropriate, punishment. There is a public, as well as a private, interest in proceedings for contempt. The proper administration of justice requires that orders of the court should be obeyed ... In those circumstances, what possible justification is there for leaving a person out of pocket when he is, at least in part, achieving a public purpose?"

7 The defendants in action no. 1794 of 1988 further submit that the court has no power to make an order for costs taxed between solicitor and own client. Such orders are not common but have been made in a variety of circumstances of which contempt is only one. I have no doubt the power exists.

8 The order for costs is to be made in the exercise of a judicial discretion. The rationale I have mentioned provides a basis for making the order that costs be taxed as between solicitor and own client. There is nothing in my view in this case to counteract the application of that rationale. In my earlier reasons I described the contempts as serious and as having been committed "in the conscious though imperfect knowledge that what they were doing had been prohibited by the court. The conduct was persistent and, perhaps systematic." The plaintiff's action has achieved "the very substantial purpose of disciplining the defendants and vindicating the authority of the court". Mudginberri Station Pty Ltd at 113.

9 The plaintiff proceeded against that defendants in action no. 1794 of 1988 in respect of three contempts. Another three had been particularised but were abandoned shortly before the trial commenced. The defendants submit that their costs thrown away by the abandonment of those three allegations should be paid by the plaintiff. I agree. Those costs should be taxed as between party and party. See McIntyre at 427F and Plating Co v. Farqueson [1881] 17 Ch D 49.

10 Similar considerations apply in relation to action no 4843 of 1986. In this action the defendants argue that the plaintiff's resort to litigation was unnecessary and that the proceedings could have been avoided had Mr Bosa approached Mr Trohear to have the problem resolved amicably. There is no force in this submission. At no stage did the CFMEU, or Mr Trohear, concede that the plaintiff had any basis for complaint about the union's activities. The defendants' attitude was that there had been no breach of the undertaking and that the plaintiff's action should be dismissed with costs. I do not see that an informal approach to Mr Trohear would have achieved anything.

11 It is also argued that the contempt was limited to one occasion only and was not a wilful or flagrant denial of the undertaking. This is true but the point remains that the plaintiff took action in the public interest to vindicate the authority of the court. The defendants could have avoided the consequences with which they have been visited by a suitable apology and a demonstrated commitment to complying with the undertaking.

12 In this action, too, the plaintiff proceeded with only one of three allegations of contempt it had originally made. The defendants seek an order for costs in respect of the claims abandoned.

(a) that the plaintiff's costs of the notice of motion in relation to the contempt proved, including reserved costs, be taxed as between solicitor and own client and paid by the defendants.

(b) Order that the costs incurred by the defendants in defending the allegations contained in paragraphs 7 and 9 of the statement of claim be taxed between party and party and paid by the plaintiff.

(c) Order that the plaintiff's costs of the notice of motion in respect of the contempts proved, including reserved costs, be taxed as between solicitor and own client and paid by the defendants.

(d) Order that the defendant's costs thrown away by the abandonment of the allegations of contempt be taxed as between party and party and paid by the plaintiff.

(e) The plaintiff is not to recover pursuant to the orders made in (a) or (c) any costs which in the view of the taxing master were unreasonably incurred.

(f) Liberty to apply in respect of the orders for costs.

AMALGAMATED SOCIETY OF CARPENTERS, JOINERS, BRICKLAYERS AND PLASTERERS OF AUSTRALASIA UNION OF EMPLOYEES, QUEENSLAND

AMALGAMATED SOCIETY OF CARPENTERS, JOINERS, BRICKLAYERS AND PLASTERERS OF AUSTRALASIA UNION OF EMPLOYEES, QUEENSLAND

AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION (QLD BRANCH)

CATCHWORDS: COSTS - whether plaintiff's costs should be taxed on a solicitor and own client basis or a party and party basis.

Counsel: Dr C Jessup QC with him Mr G Martin SC for the plaintiff

Mr I Hanger QC with him Mr D Rangiah for the first defendant

Mr R R Douglas QC with him Mr A McDougall for the second defendant