Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust - [2003] NSWIRComm 387 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust

[2003] NSWIRComm 387

Industrial Relations Commission (NSW)|2002-06-26|Before: Marks J, Boland J, Haylen J, Haylen JJ, Mr P

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Court

Industrial Relations Commission (NSW)

Decision date

2002-06-26

Before

Marks J, Boland J, Haylen J, Haylen JJ, Mr P

Catchwords

02/27/2003
06/12/2003 DATE OF JUDGMENT: 11/20/2003

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Original judgment source is linked above.

Catchwords

02/27/200306/12/2003 DATE OF JUDGMENT: 11/20/2003

Judgment (171 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) [2003] NSWIRComm 387 APPLICANT Industrial Registrar of New South Wales PARTIES : RESPONDENT The Uniting Church in Australia Property Trust (NSW) FILE NUMBER: IRC 4658 of 2002 CORAM: Marks J at 1; Boland J at 84; Haylen J at 113 Contempt - Allegations that conduct of respondents to proceedings under s106 of the Industrial Relations Act 1996 in and in connection with the termination of employment of applicants in those proceedings constituted contempt of court - Principles relating to contempt - Held (by Marks and Haylen JJ, Boland J dissenting) respondent guilty of two charges - Remaining charges dismissed (Haylen J dissenting in part) . CATCHWORDS : Evidence - Affidavit material filed in proceedings between same parties in substantive proceedings held admissible - Affidavits annexing correspondence between parties in substantive proceedings and results of business names searches held admissible. Industrial Relations Act 1996 s106 s109 s153 s164 s180 LEGISLATION CITED : Trades Practices Act 1974 s 82 Industrial Relations Commission Rules 1996 The Uniting Church in Australia & Anor v The Industrial Registrar, Industrial Relations Commission of New South Wales & Ors (Court of Appeal, CA 40439/02, 26 June 2002) Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 Harman v Secretary of State for the Home Department [1983] AC 280 Crest Homes Plc v Marks [1987] 1 AC 829 Attorney-General v Leveller Magazine [1979] AC 440 Attorney-General v Times Newspapers [1974] AC 273 Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) Bhagat v Global Custodians Ltd [2002] NSWCA 160 Harkianakis v Skalkos (1997) 42 NSWLR 22 John Fairfax & Sons v The Police Tribunal (1986) 5 NSWLR 465 CASES CITED : Scott v Scott [1913] AC 417 Fraser v The Queen [1984] 3 NSWLR 212 In Re William Thomas Shipping Co Pty Ltd [1930] 2 Ch 368 Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354 Wilshire-Smith v Voltino Bros Pty Ltd (1993) 41 FCR 496 Coward v Stapleton (1953) 90 CLR 573 Australian Building Construction Employees' & Builders Labourers' Federation & Ors v Minister of State for Industrial Relations & Ors (1982) 43 ALR 189 Webster v Bakewell Rural District Council [1916] 1 Ch 300 Catalfamo v Hersfield Holdings Pty Ltd (1981) 52 FLR 343 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15 Victoria v The Australian Building Construction Employees' and Builders' Labourers' Federation (1982) 152 CLR 25 HEARING DATES: 02/26/2003; 02/27/2003; 06/12/2003 DATE OF JUDGMENT: 11/20/2003

[13]

THE CHARGES AND PARTICULARS 8 It is now necessary to set out the charges brought by the applicant Registrar against the respondent in these proceedings. They are five in number and commence with "F" due to the amendments to the original notice of motion. The charges are in the following terms: F. A declaration that the Respondent is guilty of contempt of court, in that in October 2001, it published a letter dated 19 October 2001 addressed to "Stakeholders", and thereby did act in a manner which had a tendency to interfere with the administration of justice with respect to two proceedings which were before the Industrial Relations Commission of New South Wales, Nos. 5785 and 5786 both of 2001. G. A declaration that the Respondent is guilty of contempt of court, in that between 10 October 2001 and 10 November 2001, the Respondent required Kevin Rocks and Wendy Jeskie to attend on the Respondent to answer allegations made in the Reply to the Summons for Relief and did thereby act in a manner which had a tendency to interfere with the administration of justice with respect to two proceedings which were before the Industrial Relations Commission of New South Wales, Nos. 5785 and 5786 both of 2001. H. A declaration that the Respondent is guilty of contempt of court, in that between 10 October 2001 and 10 November 2001, the Respondent did threaten Kevin Rocks and Wendy Jeskie with detriment if they failed to answer allegations made in the Reply to the Summons for Relief and did thereby act in a manner which had a tendency to interfere with the administration of justice with respect to two proceedings which were before the Industrial Relations Commission of New South Wales, Nos. 5785 and 5786 both of 2001. I. A declaration that the Respondent is guilty of contempt of court, in that between 10 October 2001 and 10 November 2001, the Respondent in dismissing Kevin Rocks and Wendy Jeskie, for failing to attend to answer allegations made in the Reply to the Summons for Relief and did thereby act, did act (sic) in a manner which had a tendency to interfere with the administration of justice with respect to two proceedings which were before the Industrial Relations Commission of New South Wales, Nos. 5785 and 5786 both of 2001. J. A declaration that the Respondent is guilty of contempt of court, in that the Respondent by dismissing Kevin Rocks and Wendy Jeskie for the reason that they indicated that they were approaching the Industrial Relations Commission for orders, acted in a manner which had a tendency to interfere with the administration of justice with respect to two proceedings which were before the Industrial Relations Commission of New South Wales, Nos. 5785 and 5786 both of 2001. 9 By document filed in the Court on 29 August 2002 the then respondents sought certain particulars from the applicant Registrar of each of the charges. Those particulars were furnished by document filed on 12 September 2002.

[19]

Answers: Paragraph G 4. The Applicant alleges that the Respondents: i. in directing Rocks and Jeskie to attend a meeting; ii. to compel Rocks and Jeskie to give replies "to the allegations made within the paragraphs" (a) to (t) of paragraph 4 of the Summary of Additional Matters of Fact and Law; iii. in stating that "if the answers given do not constitute credible denials or reasonable explanations, disciplinary actions may be implemented which could include the termination of your employment"; and iv. in stating that "Failure to do so [attend the meeting] will be regarded as a serious disciplinary issue" acted in a manner calculated to interfere with the administration of justice by placing unreasonable pressure on Rocks and Jeskie: (i) to settle or compromise the proceedings; (ii) to withdraw the proceedings; (iii) to force them to comply with an instruction which was not authorised by any Court order; and (iv) to embarrass Rocks and Jeskie. 5. No. 6. Not applicable. Questions: As to Paragraph H 7. What are the other threats of detriment which are referred to in paragraph C and H; 8. Please specify with particularity how it is alleged that the "threats" referred to in paragraphs C and H were "calculated to interfere with or obstruct the due administration of justice". 9. Is it alleged that the alleged threats referred to in paragraphs C and H in fact interfered with or obstructed the due administration of justice? 10. If so, please specify precisely how it is alleged that the conduct referred to in paragraphs C and H interfered with or obstructed the due administration of justice. Answers: Paragraph H 7. The letter dated 1 November 2001 from the Respondents to Rocks and Jeskie indicated that if Rocks and Jeskie did not attend, they "may suffer detriment in your employment, up to and including dismissal". It is a matter within the knowledge of the Respondents as to what detriments could be imposed upon Rocks and Jeskie. 8. The detriments threatened by the Respondents against Rocks and Jeskie were calculated to place unreasonable pressure on them to: (i) settle or compromise the proceedings; (ii) withdraw the proceedings; (iii) force them to comply with any instruction which was not authorised by any Court order; and (iv) to embarrass Rocks and Jeskie. 9. No. 10. Not applicable. Questions: As to Paragraph I 11. Please specify with particularity how it is alleged that the reason for dismissing the Applicant referred to in paragraphs D and I was "calculated to interfere with or obstruct the due administration of justice". 12. Is it alleged that the alleged reason for dismissing the Applicant referred to in paragraphs D and I in fact interfered with or obstructed the due administration of justice? 13. If so, please specify precisely how it is alleged that the reason for dismissing the Applicant referred to in paragraphs D and I interfered with or obstructed the due administration of justice.

[95]

32 A general statement of principle which is useful in understanding the background against which these proceedings are being conducted is contained within observations made by Lord Diplock in the House of Lords in Attorney-General v Times Newspapers [1974] AC 273, commencing at 307. His Lordship said: My Lords, in any civilised society it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it, are essential if citizens are to live together in peaceful association with one another. 'Contempt of court' is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms. One may leave aside for the purposes of the present appeal the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a 'civil contempt.' The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity; but no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement. All other contempts of course are classified as 'criminal contempts,' whether the particular proceedings to which the conduct of the contemnor relates are themselves criminal proceedings or are civil litigation between individual citizens. This is because it is the public interest in the due administration of justice, civil as well as criminal, in the established courts of law that it is sought to protect by making those who commit criminal contempts of court subject to summary punishment. To constitute a contempt of court that attracts the summary remedy, the conduct complained of must relate to some specific case in which litigation in a court of law is actually proceeding or is known to be imminent. Conduct in relation to that case which tends to undermine the due administration of justice by the court in which the case will be disposed of, or which tends to inhibit litigants in general from seeking adjudication by the court as to their legal rights or obligations, will affect not only the public interest but also - and this more immediately - the particular interests of the parties to the case. In this respect criminal contempt of court resembles many ordinary criminal offences. Such as theft or offences against the person or property, by which the interests of the victim himself are prejudiced more immediately than those of the public at large. ….. In the nature of things the applicant would be primarily concerned with the effect of the alleged contempt upon his own interests in that litigation, and the argument addressed to the court would be mainly directed to this. This is reflected in the judgments in the numerous cases on contempt of court which appear in the reports. With relatively few exceptions, they concentrate upon the particular prejudice likely to be caused to a party in that litigation itself by the particular conduct that is the subject of complaint. There is an abundance of empirical decisions upon particular instances of conduct which has been held to constitute contempt of court. There is a dearth of rational explanation or analysis of a general concept of contempt of court which is common to the cases where it has been found to exist. This is not surprising since until the Administration of Justice Act 1969 there was no appeal in cases of criminal contempt. The decisions are those of courts of first instance whose main function is to reach decisions upon the particular facts presented to them in the particular case with which they are dealing. The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court. (at 307-9)

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33 In considering matters of this kind the courts have, however, been careful to balance the necessity to preserve the attainment of justice against fundamental rights of free speech and rights to be free to discuss or even criticise court proceedings and those who are engaged in them. This requirement to balance what may be competing, and indeed, conflicting interests all of which are designed to enhance the public interest, has resulted in a necessarily cautious approach to be taken to a determination of whether conduct constitutes criminal contempt. This matter was summarised by Lord Morris in Attorney-General v Times Newspapers (previously referred to) commencing at 302 in the following manner: My Lords, the phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits. In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity; it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted. But as the purpose and existence of courts of law is to preserve freedom within the law for all well disposed members of the community, it is manifest that the courts must never impose any limitations upon free speech or free discussion or free criticism beyond those which are absolutely necessary. When therefore a court has to consider the propriety of some conduct or speech or writing, decision will often depend upon whether one aspect of the public interest definitely outweighs another aspect of the public interest. Certain aspects of the public interest will be relevant in deciding and assessing whether there has been contempt of court. But this does not mean that if some conduct ought to be stigmatised as being contempt of court it could receive absolution and be regarded as legitimate because it had been inspired by a design to bring about a relief of some distress that was a matter of public sympathy and concern. There can be no such thing as a justifiable contempt of court. Various types of behaviour which in the past have been brought to the notice of courts as involving 'contempt' have furnished illustrations of circumstances which have been regarded by courts as requiring condemnation. A study of decided cases helps to show the attitude of courts at different times and a certain pattern emerges. I doubt whether it is either desirable or possible to frame any exact or comprehensive definition or to formulate any precise classifications. Nevertheless the cases illustrate certain general principles as to what is or is not permissible and courts have as a rule found no difficulty in deciding whether a complaint is or is not well founded. Certain examples may be given. Grossly irregular behaviour in court could never be tolerated. Nor could publications which would prejudice a fair trial. Thus if someone was awaiting trial on a criminal charge much harm could be done by the publication of matter which might influence potential jurors to the prejudice of the accused. There might be steps taken wrongfully to influence witnesses - as by methods of intimidation or of improper inducement. So also there might be conduct which was calculated so to abuse or pillory a party to litigation or to subject him to such obloquy as to shame or dissuade him from obtaining the adjudication of a court to which he was entitled. In all such situations a court would have to ascertain the precise facts and then, as was said in the Divisional Court, to consider them in the light of all the surrounding circumstances. The surrounding circumstances would include all those relating to the nature of any pending litigation and the stage it had reached. A court would not be likely to listen to a complaint that lacked substance. Indeed when the Divisional Court referred to the question ([1973] Q.B. 710, 725) whether words complained of would 'create a serious risk that the course of justice may be interfered with' or when Lord Denning M.R, at p. 739, said that 'there must appear to be "a real and substantial danger of prejudice" to the trial of the case or to the settlement of it' useful reminders were given of the fact that 'contempt' is criminal conduct. According to the measure of its gravity it may call for punishment or penalty going beyond the payment of costs. A court will therefore only find 'contempt' where the risk of prejudice is serious or real or substantial. If a court is in doubt whether conduct complained of amounts to 'contempt' the complaint will fail. ( at 302-3)

[99]

36 The proceedings in Harkianakis involved a consideration of whether material published in a newspaper constituted contempt in that there was an intention to interfere with the course of justice in existing defamation proceedings by subjecting the claimant to improper pressure not to proceed in those proceedings. Whilst not wishing to detract in any way from the comprehensive and incisive analysis of the authorities in this area, it is possible to discern some statements of basic principle from the judgment of Mason P which will be of assistance in the determination of these proceedings. His Honour's analysis and consideration of the relevant authorities and his Honour's conclusions as to questions of principle to be drawn from them are respectfully adopted in determining these proceedings. They are: 1. Where the charge brought against the respondents is an allegation of criminal contempt, it must be established beyond reasonable doubt. 2. It is not necessary to determine whether or not there was an intention on the part of the respondent to interfere with the proper administration of justice. It is sufficient for the applicant to prove to the requisite criminal standard that the conduct complained of has, "as a matter of practical reality", the impugned tendency to interfere with the course of justice in the context of these proceedings. (No suggestion has been made in these proceedings that there was any intention on the part of the respondent to interfere with the substantive proceedings before the Court, and hence it is unnecessary to consider any relevant principles which might otherwise apply). 3. There is "a category of criminal contempt in which improper pressure is placed on a party to court proceedings through the public dissemination of material." Relevantly for these proceedings, improper pressure will include a tendency to deter the applicants in the substantive proceedings from continuing with the litigation, including the potential for "interference in the litigant's freedom to conduct the litigation as he or she chooses." Relevantly this will include a tendency to interfere improperly with negotiations towards the settlement of a pending suit. In this context it is not necessary that there be demonstrated actual interference with the conduct of proceedings by a litigant but merely a tendency to so interfere. 4. There is an unresolved question as to whether one measures the tendency to interfere with litigation by reason of "the capacity to withstand pressure of the particular litigant party involved, or whether the court should have in contemplation some hypothetical litigant of 'ordinary' fortitude who might be capable of influence by similar pressure applied in similar circumstances." ( Mason P tended towards the latter approach as being correct, although his Honour said that it was not necessary that he resolve that issue in those proceedings). In Bhagat v Global Custodians Ltd [2002] NSWCA 160, after referring to Harkianakis and other authorities, Spigelman CJ observed at par [49]: These authorities are concerned with the law of contempt by publication, in which context different considerations arise when balancing the public interest in freedom of speech against the public interest in the administration of justice. In such cases the element of interference with the administration of justice is mediated by the response of the community, broader than the parties, to whom the publication is sent. At least in the present context of private communications between parties to proceedings, I see no reason why the particular vulnerability of a party, in terms for example of age and means, should not be a material consideration when determining whether the pressure was improper. At least in such a context, I do not see why the Court must choose between an objective and a subjective test. Both dimensions may be pertinent when formulating the judgment about impropriety. In the same case, in agreeing with the Chief Justice, Ipp AJA said at par [54]: [A]t least in cases of contempt of Court involving private communications to individuals, regard should be had to the subjective characteristics of the recipients of the communications. That is to say, there should be an objective assessment of the relevant materials, having regard to the subjective characteristics of the recipients of the communications. 5. In considering the conduct which would constitute improper pressure on litigants and interference with their ability to litigate their case, Mason P concluded that: "Pressure may be actual or threatened, conditional or unconditional. What is done (or threatened) may be lawful or unlawful conduct. The mere fact that something that is lawful is threatened does not mean that the pressure is necessarily proper…." (at 30). 6. The preferred test in Australia was that contained within the judgment of Jordan CJ in Bread Manufacturers , previously extracted. This consisted of achieving a balance between the position of improper pressure on a litigant in connection with the substantive proceedings against the necessary public and open debate about the subject matter of the litigation. The former included also the necessity of ensuring a fair trial of the substantive proceedings. This approach was to be preferred to the approach personified by the House of Lords decision in Times Newspapers , previously referred to, especially as there were, in Mason P's analysis, unresolvable differences of approach between several of the judgments in that case. 7. In determining whether conduct (whether constituted by publication of material or otherwise) has the tendency to bring improper pressure to bear on a litigant by reason of its characteristics, it is necessary to consider the total context within which the alleged improper conduct occurs, and to take into account that there will be "special defences such as fair comment and justification" which are available. 8. In determining the proper approach to the matter the following statement of principle enunciated by Lord Reid in Times Newspapers case (at p 294) is apposite: The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution. It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose. Public policy generally requires a balancing of interests which may conflict. Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice. 9. The decided cases, in determining whether publication of material has amounted to contempt by bringing to bear improper pressure on litigants, have considered matters such as whether or not the publication has constituted "an unbalanced and scurrilous attack lacking in any justification ….", whether there is "vehemence", "unrestrained language and evocative imagery", whether the litigant has been held up to "public obloquy and derision", whether the language used in the publication can be described as "intemperate", "execration", and "public ridicule", and the like. 10. The onus of displacing the necessity to have regard to considerations of public policy rests on the prosecution. So too does that of displacing any justification defence fairly open on the facts. The mere presence of an inaccurately stated fact or florid language will not suffice to establish contempt. The whole context needs to be determined before what is said and the manner it is expressed can be identified as having crossed the line between the offensive and the contemptuous. But that line is crossed when it is proved that the publication has the tendency to deter and where a party is vilified without justification because he or she is a litigant or because of the litigation or the allegations made in it. (at 42)

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39 In John Fairfax and Sons v The Police Tribunal (1986) 5 NSWLR 465 at 471, Mahoney JA stated that a superior court had the power and the duty to ensure that justice is done according to the law in respect of those seeking the exercise of its jurisdiction, citing Viscount Haldane LC in Scott v Scott [1913] AC 417 at 437 for the proposition that it may be necessary for this purpose to make orders for the protection of those relevantly involved in proceedings before the court. Mahoney JA went on to refer to an attempt, by threat of a detriment, to deter a person from enforcing a right which he has, which likewise may, in appropriate circumstance, be punished as contempt, citing the cases referred to in Fraser v The Queen [1984] 3 NSWLR 212. 40 In Fraser, Kirby P and McHugh JA (at 231) referred to contempt by way of interference with the due administration of justice as being another and separate branch of the law of contempt. Contempt by way of interference with the due administration of justice was an expression which was a convenient label used to gather together a number of otherwise loosely connected legal classifications, the common thread of which may be described as the due administration of justice but the breach of which may be manifested in several ways. 41 As already noted above, Mason P in Harkianakis conducted a general review of the law in relation to contempt and referred to the need to demonstrate, to the criminal standard, that a contempt had "as a matter of practical reality, a tendency to interfere with the course of justice in a particular case". At 28 et seq Mason P continued: The cases have recognised a category of criminal contempt in which improper pressure is placed on the party to court proceedings through the public dissemination of material ... the gravamen of the contempt is the tendency to deter both the individual litigant and litigants similarly placed who wished to seek curial vindication of their rights. ... the gravamen of this particular type of contempt is the potential interference of the litigant's freedom to conduct litigation as he or she chooses. The right to bring an action in relation to a civil matter is really a bundle of rights that includes the freedom to originate, not to originate and to negotiate rather than litigate a settlement of the dispute, and/or withdraw an action or a defence after setting it in motion. The latter option may be exercised up until the time the court delivers judgment. The modern pre-occupation with 'alternative dispute resolution (ADR)' recognises that settlement of litigation is as much an aspect of the curial process as combat to the bitter end. Most civil proceedings are settled out of court, and this is in the Public interest for several obvious reasons. It follows that (improper): '... interference with negotiation towards a settlement of a pending suit is no less a contempt of court than interference, physical or moral, with a procedural situation in the strictly forensic sense ( Sunday Times case at 317), per Lord Simon (see Attorney-General v Times Newspapers Ltd [1974] AC 273). 42 Later, at 32, his Honour stated: In an adversary system, the law's concern is to protect from improper interference the litigant's freedom to choose whether or not to initiate, continue or discontinue legal proceedings. It is irrelevant that the principal proceeding may be doomed to success or failure. 43 In Re William Thomas Shipping Co Pty Ltd [1930] 2 Ch 368 Maugham J considered the effect of a published interview criticising the application for the appointment of a receiver in which a director expressed the view that the appointment had smashed the goodwill and organisation of a business in a day, and no one in shipping circles could understand the line of conduct. At 376, his Honour stated: Dealing as I am here, with a case very different from that which came before the court in The Queen v Payne [1896] 1 QB 577, I must express my opinion that the jurisdiction of the court is not confined to cases where the order of the court or the future orders of the court are likely to be directly affected in some way. If it was so confined, I doubt whether there would be any limit to what a litigant, or some other person, might say pending the hearing of an action in the Chancery Division, unless, indeed, it could be shown that possible witnesses in the case were being interfered with. I think that to publish injurious misrepresentations directed against the party to the action, especially when they are holding up that party to hatred or contempt, is liable to affect the cause of justice because it may, in the case of the plaintiff, cause him to discontinue the action from fear of public dislike, or it may cause the defendant to come to a compromise which he would otherwise not come to, for like reasons. I think that consideration has peculiar weight in the case of a representative action such as this, being an action of a kind which is generally brought in the Chancery Division. 44 In that case, his Honour had particular concern for a plaintiff with a small stake who, by pressure of adverse comment about his proceedings, may be improperly persuaded to take action in the running or settlement of the case which was not in the interests of the other debenture holders whom he was representing. 45 In Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354, Burchett J, at 362, stated: 'Improper pressure' or 'improper interference', used in some of these authorities to identify cases where contempt is committed by attempt to influence or deter a party, has the disadvantage of a degree of imprecision. How much this is a problem for the law of contempt as a practical matter may be a subject for debate. As I understand the authorities, some action having an actual tendency to interfere with the administration of justice (including deterrence of a party) is taken with the intention of so interfering whether or not it would otherwise be an improper or a proper action, that tendency and that intent may be enough to establish a contempt of court. But as Mason P pointed out in Harkianakis at 28, intention to interfere with the due administration of justice is not necessary to constitute a contempt. Where such an intention is not shown, the question whether any pressure was or was not improper may be the crucial issue. Thus, in Wilshire-Smith v Voltino Bros Pty Ltd (1993) 41 FCR 496, a case in which (as appears at 506) there was no intention to interfere with the due administration of justice, but what was done had that tendency, O'Loughlin J said (at 505): The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate. 46 In Wilshire-Smith, O'Loughlin J, at 505, in dealing with the notion of pressure said: In assessing whether the requisite degree of inhibition might be calculated to exist there must be some real risk for there will be no contempt if the possibility of influence is remote. On the other hand, the assessment must be made in an objective setting. It is not to the point to acknowledge that in this case the company has not been overborne. If that was a factor to be taken into consideration then no litigant who was prepared to complain would ever establish the existence of a risk to inhibition. The correct test is to determine whether the conduct complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate. If the conduct amounted to such improper pressure it would not matter that it failed to achieve its objective.

[117]

59 Charge H and the relevant particulars were in the following terms: Charge H: A declaration that the Respondent is guilty of contempt of court, in that between 10 October 2001 and 10 November 2001, the Respondent did threaten Kevin Rocks and Wendy Jeskie with detriment if they failed to answer allegations made in the Reply to the Summons for Relief and did thereby act in a manner which had a tendency to interfere with the administration of justice with respect to two proceedings which were before the Industrial Relations Commission of New South Wales, Nos. 5785 and 5786 both of 2001. Particulars: The letter dated 1 November 2001 from the Respondents to Rocks and Jeskie indicated that if Rocks and Jeskie did not attend, they "may suffer detriment in your employment, up to and including dismissal'. It is a matter within the knowledge of the Respondents as to what detriments could be imposed upon Rocks and Jeskie. The detriments threatened by the Respondents against Rocks and Jeskie were calculated to place unreasonable pressure on them to: (i) settle or compromise the proceedings; (ii) withdraw the proceedings; (iii) force them to comply with any instruction which was not authorised by any Court order; and (iv) to embarrass Rocks and Jeskie. 60 Charge G identifies the impugned conduct as that of requiring the applicants in the substantive proceedings to attend on the respondent to answer allegations made by the respondent in a Reply, being a document which the respondent was required to file pursuant to the rules of this Court. In order to deal with this matter it is necessary to have regard to the context in which proceedings instituted under s 106 of the Act are dealt with. The proceedings are commenced by the issue of a summons which must be verified. By r 18A of the Industrial Relations Commission Rules 1996 an application must be in a particular form as specified and must "specify in summary the matters of fact and law which form the basis of the application, but not the evidence by which those facts are to be proved, and ….. contain sufficient information to allow the Commission to carry out its duty to conciliate under s 109 by a succinct summary."

[122]

65 It is necessary to determine whether the respondent's conduct viewed objectively had a tendency to interfere with the administration of justice in the manner particularised. The authorities which have been previously canvassed at length give some general guidance about the matters which need to be taken into account in determining a matter such as this and in a corollary fashion provide guidance concerning those matters which ought to be discarded in reaching a decision. It seems to me that a relevant question in the context of these proceedings includes a consideration of whether the conduct of the proceedings by the Court was undermined or usurped (per Lord Diplock in Attorney-General v Times Newspapers) or interfered with (per Lord Morris in Attorney-General v Times Newspapers) by the conduct of the respondent complained of in the charge as particularised. Jordan CJ in Ex Parte Bread Manufacturers identified competing matters of public interest in determining whether contempt has been committed. Here there is no significant matter of competing public interest to be considered, but it is necessary to consider the conduct of the respondent in terms of what it saw was its right as an employer to deal with the applicants in the substantive proceedings as its employees. In my opinion the conduct of the respondent viewed objectively had a tendency to interfere with the administration of justice with respect to the proceedings before the Court in the sense to which I have referred by compelling the applicants in those proceedings to respond to the Reply in a manner which was not authorised by any order of the Court. Ms Jeskie and Mr Rocks were obliged to respond to the allegations contained within the Reply by means of the Response document, which had been completed prior to them being ultimately required to attend at the offices of the respondent. The demands made by the respondent and by the solicitor acting on its behalf were framed by reference to the Reply documents. Whilst one might excuse an employer from lack of precision in the way in which requirements of this kind might be framed, it was clear that the respondent had available to it legal advice and, indeed, the request made by the respondent was framed by reference to a requirement to answer the allegations contained in the Reply document, notwithstanding that this had already been effected through the Response document. Even though the demand made by the respondent might otherwise have been made within the context of the employer/employee relationship, the manner in which the demand was framed and the context in which it was perpetrated went beyond the employment relationship. The result was that there was a tendency to interfere with the conduct of the proceedings which thereby constitutes contempt covered by one of the particulars of the charge. The applicants were required to respond to the Reply Document in a manner not authorised by any Court order. In doing so the proceedings being conducted by the Court were undermined and usurped and unduly interfered with. For these reasons the respondent is, in my opinion, guilty of the offence alleged in Charge G.

[130]

Charge J 73 Charge J and the relevant particulars are in the following terms: Charge J: A declaration that the Respondent is guilty of contempt of court, in that the Respondent by dismissing Kevin Rocks and Wendy Jeskie for the reason that they indicated that they were approaching the Industrial Relations Commission for orders, acted in a manner which had a tendency to interfere with the administration of justice with respect to two proceedings which were before the Industrial Relations Commission of New South Wales, Nos. 5785 and 5786 both of 2001. Particulars: 14. The Respondents dismissed Rocks and Jeskie in reliance upon the facts, matters and circumstances set out in the Respondents' letter to Rocks and Jeskie of 2 November 2001. The dismissal of Rocks and Jeskie had the tendency to interfere with the due administration of justice by depriving the Industrial Relations Commission of making orders that it might have thought appropriate in all the circumstances. 15. These matters are set out in the letter from Rocks and Jeskie's lawyers to the Respondents' lawyers dated 1 November 2001. 74 The charge alleges that the contempt arises out of the fact that the respondent dismissed the applicants for the reason that they indicated that they were approaching the Industrial Relations Commission for orders. The particulars indicate that the respondent's reason for dismissing the applicants can be found in the letters of 2 November 2001 and, further, that by dismissing the applicants (because they had indicated that they were approaching the Industrial Relations Commission for orders) this had the tendency to interfere with the due administration of justice by depriving the Industrial Relations Commission of the power to make orders that it might have thought appropriate in all the circumstances. The particulars refer to the letter from the applicant's lawyers dated 1 November 2001 where it was said, in effect, that if the respondent failed to give an undertaking that it would take no further steps in relation to the applicants' employment, the applicants' lawyers would take immediate steps to have the matter re-listed and seek appropriate orders.

[161]

104 In referring to the correspondence sent by the appellant to the litigants the Chief Justice said: 39 The statement [in the letter] that the author was giving the recipients "an opportunity to realise your folly" and withdraw the proceedings "to save yourself, as a pensioner, from depleting your hard earned money into paying damages and costs" is not, of itself, improper pressure. A firm assertion that the other party must lose and a reasonable statement of the consequences of loss is not a contempt, even if it does exert pressure on a party to withdraw proceedings. The position is otherwise if a demand of that character is accompanied by improper threats or assertions. In my opinion such are present in the letters the subject of these proceedings. 40 There are two themes in each letter. The first concerns proceedings No 2534 of 1998 and No 3156 of 1999 in which the recipients of the letters had been or were to be joined as plaintiffs. The second concerns a demand for information as to the valuable consideration that the First Respondent had given with respect to the Deed of Assignment, which may have some relevance to proceedings No 3354 instituted by the Appellant. 41 With respect to the proceedings instituted by Global Custodians Limited, the Appellant asserted that it would not be permissible for a company like Global Custodians Limited to "finance legal actions of private individuals" and for the solicitors employed by such a plaintiff to pay legal costs. To assert that such a financial relationship is impermissible in all circumstances is wrong in law. There was no reasonable basis for those assertions made by the Appellant. 42 Paragraph 4 of the letter which stated: "You are not only required to pay your own legal costs but also damages that may be awarded to me and my costs in the event I am successful" was based on assertions that were wrong and without reasonable basis. This pressure was reinforced by an assertion that the Appellant would commence proceedings if either of the other parties were found to be paying the legal costs of the recipients. (See par 5 of the letter.) 43 The second theme in the letter was first mentioned in par 7(b), requiring the recipients to inform the Appellant of the valuable consideration for the Deed of Assignment. In the concluding unnumbered paragraph of the letter, the Appellant threatened that unless that demand was complied with he would subpoena the recipient to give evidence and that he or she would be required to attend court and pay his or her own costs. The letter asserted that: "If you give false evidence on oath I will seek leave to commence criminal proceedings against you without further notice." 44 This last reference constituted a threat which, on the evidence, had no basis of any character. There was no reason to believe that any recipient would give false evidence. The fact that the trigger for the threatened conduct was an event - "if you give false evidence on oath" - that may have made the subsequent conduct lawful, does not detract from the impermissibility of a threat of this character.

Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust

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