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

APPLICANT Mr P I Lakatos of counsel SOLICITOR Crown Solicitor

LEGAL REPRESENTATIVES: RESPONDENT Ms R S McColl SC with Mr A R Moses of counsel then Mr L P Robberds QC with Mr A R Moses of counsel SOLICITORS Clayton Utz Lawyers

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Marks J Boland J Haylen J Thursday 20 November 2003

Matter No IRC 4658 of 2002 THE INDUSTRIAL REGISTRAR OF NEW SOUTH WALES v THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) Application by the Industrial Registrar of New South Wales for contempt orders in matter nos. IRC 2001/5785 and IRC 2001/5786 JUDGMENT of MARKS J and BOLAND J [2003] NSWIRComm 387

1 MARKS J: These are proceedings in which the Registrar of this Court has sought declarations that the respondent, The Uniting Church in Australia Property Trust (NSW), has been guilty of contempt of the Court in a number of ways as specified in an amended notice of motion which now constitutes the process by which the proceedings were initiated. The applicant also seeks an order that the respondent, if found guilty, be punished accordingly and an order for costs.

2 The proceedings are brought pursuant to the provisions of s 180 of the Industrial Relations Act 1996. That is a general provision empowering the Commission in Court Session to deal with a contempt and making a person in contempt of the Commission guilty of an offence. By s 153(2) proceedings for contempt are to be dealt with by a Full Bench of the Commission in Court Session and by s 164(2) the Commission in Court Session may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission. By s180(2), conduct is contempt only if the same conduct in relation to the Supreme Court would be a contempt of the Supreme Court. 3 There was contention between the parties concerning some of the evidence upon which the applicant Registrar sought to rely for the purpose of the prosecution, and whether that evidence could properly be brought before the Court in the manner proposed by the Registrar. Before discussing this preliminary issue it is necessary to set out a brief description of the factual background and of the chronology leading up to the hearing of the amended notice of motion.

4 Whilst, in the end result the disposal of the proceedings involves the delivery of three separate judgments and this judgment reflects the majority view, it will be observed from the separate judgments to be delivered by Justices Boland and Haylen (which I have had the advantage of reading in draft) that there is a large measure of agreement on the relevant principles and, indeed, agreement on the disposal of one of the charges. I acknowledge that my judgment contains material which has been contributed by both Justices Boland and Haylen

5 Wendy Jeske and Kevin Rocks had been stood down with pay from their duties on 1 August 2001. By summonses originally filed in the Industrial Relations Commission of New South Wales in Court Session, Ms Jeskie and Mr Rocks sought certain relief under s 106 of the Industrial Relations Act 1996 ("the Act") against three respondents named as the Uniting Church in Australia, The Uniting Church in Australia Property Trust (NSW) and Geoffrey Stephen Grasso. Each summons was filed on 30 August 2001 and related to the alleged employment of each applicant as a senior employee at the Wesley Gardens Aged Care Centre located at 2B Morgan Road Belrose, New South Wales. Each summons asserted that although the contract of employment was ongoing, allegations had been made against each applicant concerning certain aspects of their employment, that they had been removed from each of their respective positions and complained about the action taken against them to date. Each of the summonses sought orders varying the contract of employment of each applicant so as to require inter alia the respondents to deal with them justly and fairly, to disclose the nature of any allegations made against them, to give them an opportunity to respond to those allegations in writing, to refrain from taking any action to suspend or terminate their employment or deal with them adversely, not to publish any inappropriate material about them and not to terminate their employment unless they had been given two years' notice in writing or been paid an equivalent amount of remuneration. I shall refer to the proceedings under s 106 of the Act henceforth as "the substantive proceedings".

6 The respondents filed a Reply to each of the summonses on 12 October 2001 as required by the rules of the Court. The Reply asserted in part that each applicant was employed by the Board of the Wesley Gardens Aged Care Centre and had no contractual relationship with any of the respondents, detailed a number of allegations against each of the applicants in connection with the performance of their employment duties and denied any entitlement to seek relief under s 106. On 15 October 2001, Schmidt J granted the applicants' request for expedition and set the matter down for conciliation on 26 November 2001. There followed correspondence between legal practitioners representing each of the applicants and the respondents, as well as correspondence from "Uniting Care Ageing & Disability Service" to each of the applicants which culminated in a demand that the applicants attend certain meetings in order to discuss the allegations made against them and to give them an opportunity to reply specifically to the allegations set out in the respondents' Reply filed in the Commission. The respondents' first letter requiring attendance at a meeting to discuss these allegations was dated 23 October 2001. As foreshadowed in correspondence from their solicitors, neither applicant attended at such a meeting and letters were written on the letterhead of the Uniting Care Ageing & Disability Service, expressed to be for and on behalf of the Board of Wesley Gardens dated 2 November 2001, terminating the services of each of the applicants. In addition, certain documentation which was initiated from Uniting Care Ageing & Disability Service and Wesley Gardens was disseminated to third parties. All of this occurred against a background where Justice Schmidt, a Judge of the Court, had fixed a conciliation of each of the summonses for 26 November 2001.

7 On 5 November 2001, the applicants raised with Schmidt J the question of whether the conduct of the respondents might constitute a contempt. That matter was referred to the President of this Court who convened a Full Bench constituted by Wright J, President, Walton J Vice President and Schmidt J. After hearing argument on 20 March 2002 the Full Bench ordered the Registrar to apply by motion for, or to commence proceedings for, punishment for contempt against the respondent to these proceedings and one other respondent. The applicant Registrar no longer proceeds against the other respondent and this has led to the notice of motion being amended. In subsequent proceedings the members of that Full Bench determined to disqualify themselves from continuing to hear these contempt proceedings. (see statement issued 30 August 2002), and these matters came before the Court as currently constituted.

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.

10 Reproduced below are the questions and answers given with respect to each of the paragraphs of each of the charges, as they apply to the proceedings as currently constituted pursuant to the amended notice of motion. Questions: As to paragraph F 18 Upon what matters, facts and/ or circumstances is it alleged that the publication of the letter dated 19 October 2001 by the Second Respondent "acted in a manner calculated to interfere with or obstruct the due administration of justice". 19. Is it alleged that the said publication in fact interfered with or obstructed the due administration of justice? 20. If so, please specify precisely how it is alleged that the said publication amounted to an interference with or an obstruction with the due administration of justice. Answers: Paragraph F 18. On or about 19 October 2001, the Respondents published and circulated a letter to its "Stakeholders". The publication of the letter having regard to its contents, has the tendency to interfere in the administration of justice by influencing a person reading it, against Rocks and Jeskie and thereby place undue pressure upon them by: i. embarrassing Rocks and Jeskie;

ii. by placing undue pressure upon Rocks and Jeskie to settle or compromise the proceedings; and

iii. by placing undue pressure upon Rocks and Jeskie to withdraw the proceedings.

The letter is capable of bearing the following meanings: i. the references in paragraphs 1 and 2 to: · a review "into organisation and standards of care issues"; · the purpose of the review being to "resolve issues concerning the management of Kevin Rocks and Wendy Jeskie"; and · the examination of "financial and organisational issues" are capable of bearing the implication that Rocks and Jeskie had been engaged in misconduct both financial and managerial. ii. the letter in paragraphs 4 to 9 by stating that: · the financial review having been "interrupted against our will"; and · the lawyers of Rocks and Jeskie declined to put the action on hold and brought an urgent action before the court, thereby forcing the hands of the Respondents, is capable of bearing the implication that in commencing the proceedings, Rocks and Jeskie acted in an unreasonable manner. iii. the letter in paragraphs 4 to 9 by stating the matters in ii. above and by stating that: · the lawyers of Rocks and Jeskie refused to place the proceedings on hold; and · that "We did not want it to be conducted this way" is capable of bearing the implication that in continuing the proceedings, Rocks and Jeskie acted in an unreasonable manner. iv. The language in paragraph 5 is capable of bearing the implication that in continuing the proceedings, the actions of Rocks and Jeskie were unreasonable.

v. The language in paragraphs 3 to 5 is capable of bearing the implication that in continuing the proceedings, Rocks and Jeskie were unreasonably delaying the conclusion of the matter. vi. The language in paragraphs 5 to 7 is capable of bearing the implication that in continuing the proceedings, the action by the solicitors was unreasonable. 19. No. 20. Not applicable. Questions: As to Paragraph G 4. Upon what matters, facts and/ or circumstances is it alleged that the First and/or Second Respondents "acted in a manner calculated to interfere with or obstruct the due administration of justice". 5. Is it alleged that the conduct referred to in paragraphs B and G in fact amounted to an interference with or an obstruction of the due administration of justice? 6. If so, please specify precisely how it is alleged that the conduct referred to in paragraphs B and G interfered with or obstructed the due administration of justice.

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.

Answers: Paragraph I 11. The Applicant does not allege that "the reason for the dismissing the Applicant" had the tendency to interfere with the due administration of justice but that the actual dismissal did so. The act of dismissing Rocks and Jeskie was calculated to interfere with the due administration of justice in the manner set out in paragraph 8 above. 12. No. 13. Not applicable. Questions: As to Paragraph J 14. Upon what matters, facts and/ or circumstances is it alleged that the First Respondent and / or Second Respondent in fact dismissed the Applicant for the reasons set out in paragraphs E and J? 15. When and where is it alleged that the Applicant for the reason alleged in paragraphs E and J informed the First and/ or Second Respondents that the Applicant intended to approach the Commission for further orders and the substance of the communication? 16. Is it alleged that the dismissal of the Applicant in fact interfered with or obstructed the due administration of justice? 17. If so, please specify precisely how it is alleged that a dismissal on such purported grounds interfered with or obstructed the due administration of justice. Answers: Paragraph J 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. 16. No. 17. Not applicable.

11 It should be noted that the request for particulars frequently used the words "calculated to interfere with or obstruct the due administration of justice". The amended motion, however, framed each charge by reference to "a tendency to interfere with the administration of justice".

OBJECTION BY RESPONDENT TO AFFIDAVIT MATERIAL 12 By letter dated 19 February 2003 the applicant Registrar's solicitor advised the respondent's solicitor of the material that the applicant would rely on for the purpose of these proceedings. That material consisted of the following documents: 1. The notice of motion filed in the proceedings. 2. An affidavit sworn by Warren Mark Abadee on 7 August 2002. Mr Abadee is a solicitor employed in the office of the Crown Solicitor and has the carriage of these proceedings on behalf of the applicant. 3. The request for particulars and reply, the details of which have previously been set out.

13 The affidavit of Mr Abadee annexed certain correspondence to which later reference will be made. Reference is also made, inter alia, to an affidavit of Mr Richard Lund, a solicitor for the applicants in the substantive proceedings filed in those proceedings as well as affidavits of Mr Christopher McArdle, then solicitor for the respondent filed in proceedings in the New South Wales Court of Appeal. (I would add that the proceedings before the Court of Appeal were instituted by the then respondents against the decision of the Full Bench of this Court to order the commencement of proceedings for contempt: See 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) in which the Court dismissed that summons because of the claimant's failure to comply with directions of the registrar to file submissions.

14 Ms R S McColl SC, who, together with Mr A R Moses of counsel, initially appeared for the respondent, submitted that correspondence annexed to the affidavit of Mr Abadee should not be admitted into evidence in these proceedings, nor should the affidavits of Messrs Lund and McArdle referred to in Mr Abadee's affidavit.

15 With respect to the correspondence, the objection taken by Ms McColl was that it was not a communication or correspondence between the respondent in the proceedings and any other person. After hearing submissions the Court admitted the documents into evidence subject to the rights of the parties to make submissions about whether they constituted evidence which was relevant to these proceedings and the weight to be accorded to them.

16 With respect to the affidavits of Messrs Lund and McArdle, Ms McColl relied principally on the submission that these were documents which were brought into existence for the purpose of other proceedings, they had not formed part of the evidence in those other proceedings and that accordingly they could not be read and ought not to be utilised in these proceedings, particularly as they are proceedings for contempt. In support of this proposition Ms McColl relied substantially on a decision of Wilcox J in the Federal Court of Australia in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.

17 Before discussing the principles identified in those proceedings it is first necessary to have regard to the nature of the evidentiary material which the applicant Registrar sought to adduce. The first affidavit was sworn by Warren Abadee. The affidavit annexed a series of correspondence between solicitors acting for the applicants in the substantive proceedings and solicitors acting for the respondents to those proceedings; a document issued under the hand of Les McDonald, Executive Director of Uniting Care Ageing & Disability Service, dated 19 October 2001, addressed to "Dear Stakeholders"; letters under the hand of Betty Anderson, described as "Chairman" of the Uniting Care Ageing & Disability Service, addressed to the applicants in the substantive proceedings; letters under the hand of Ben Skerman expressed to be "for and on behalf of the Board of Wesley Gardens" under the letterhead of Uniting Care Ageing & Disability Service addressed to each of the applicants in the substantive proceedings; and a bulletin dated 6 November 2001 under the heading "Wesley Gardens Bulletin". Each of the documents was said by Mr Abadee to be referred to in the notice of motion which initiated these contempt proceedings.

18 The applicant Registrar sought to rely also on an affidavit sworn by Richard Frederick Lund on 2 November 2001 filed in the substantive proceedings which, in addition to much of the documentation annexed to the affidavit of Mr Abadee also contained correspondence between the applicants in the substantive proceedings and Ms Betty Anderson.

19 The applicant Registrar then sought to rely on an affidavit of Mr Lund sworn 18 February 2002 and filed in the substantive proceedings which annexed to it the results of certain searches undertaken by him of records kept by the Australian Securities and Investments Commission ("ASIC") of company and business name searches, of the business names "Uniting Care Ageing & Disability Service", and "Wesley Gardens Georgian Aged Care".

20 In Springfield, Wilcox J was called upon to determine whether a witness statement which had been filed in proceedings instituted in the Federal Court of Australia could be used by a stranger to those proceedings for the purpose of litigation then current before the Supreme Court of New South Wales. The witness statement had never been read or otherwise used in the Federal Court proceedings which had settled before going to trial.

21 Wilcox J held that the witness statement could not be used in the Supreme Court proceedings unless the maker of that statement had consented or the Federal Court was prepared to grant leave for its use. In adopting this approach his Honour utilised, by way of analogy, principles that applied to the use of documents which had been produced in proceedings pursuant to the discovery process. Such documents might be used for purposes other than the proceedings with respect to which they had been created either with the consent of the author or by leave of the Court in which the proceedings had been instituted. In those proceedings the author had not consented and it was necessary to determine the principles which would apply to the exercise of discretion as to whether leave would be granted. In the course of determining the approach to the proper exercise of the discretion of the Court his Honour observed that there were many factors which were relevant. He said: It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information of the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding. (at 225)

22 It should be observed that Wilcox J based his approach on well-known principles developed in connection with the discovery process. These are exemplified by the decision of the House of Lords in Harman v Secretary of State for the Home Department [1983] AC 280. The majority of their Lordships emphasised the invasive nature of the discovery process and the obligation imposed on legal practitioners by way of an implied undertaking not to use any discovered documents for any purpose whether collateral or ulterior beyond the purposes of the proceedings with respect to which discovery of the documents had occurred. As Lord Roskill observed, a party to the proceedings might seek the consent of the owner of the documents or the leave of the Court in which the proceedings had been taken for the use of the documents for some other purpose. His Lordship observed that he found it "difficult to think of circumstances in which the Court might be willing to give such leave in favour of a stranger and against the wishes of the owner of the documents."

23 This matter was revisited by the House of Lords in Crest Homes Plc v Marks [1987] 1 AC 829. In those proceedings the House of Lords permitted the use of documents which had been discovered pursuant to proceedings seeking an Anton Pillar order for the purpose of maintaining proceedings for contempt against the party who had discovered those documents in earlier proceedings between the same parties. These were said to create "the very special circumstances" which detracted "from the integrity of the implied undertaking given to the Court on behalf of the party obtaining an order for discovery."

24 The circumstances of those proceedings in the House of Lords and the circumstances of the proceedings before Wilcox J differ from the circumstances which prevail in the context of these proceedings. Much of the documentation consisting of correspondence between solicitors for the parties, or otherwise emanating from the parties, could not be said to have been produced by compulsion or by any process in the nature of compulsion. All of that documentation was, indeed, created before the substantive s 106 proceedings were commenced. The remaining documentation consists of the affidavit of Mr Lund which merely annexes to it the results of business name searches, to which reference has earlier been made and a further affidavit, sworn by Les McDonald, the Executive Director of the Uniting Care Ageing & Disability Service of NSW and ACT, which was filed by the then solicitors for the respondents in the s 106 proceedings. That affidavit was sought to be filed as evidence in these proceedings by the applicant Registrar acknowledging expressly that it contained material which was prima facie against the applicant's interests but which the applicant as prosecutor was duty bound to provide to this Court. There was no opposition by the respondent to these proceedings to that affidavit becoming evidence in these proceedings.

25 None of this documentation can be said to have been prepared or filed before the Court for the purpose of the substantive s 106 proceedings pursuant to any compulsory process. Apart from the affidavit of Mr McDonald, the documents consist of correspondence or other material created prior to the commencement of the s 106 proceedings save in the case of the business name searches. However, those are matters of public record in any event. Because there is in no sense any question of compulsion there is no question of any breach of any express or implied undertaking with respect to its utilisation, nor can there be any question of prejudice attaching to any party to these proceedings by reason of such documentation becoming evidence in these proceedings. Indeed, in the absence of any other objection going to the means by which the documentation is sought to become evidence in these proceedings, it is apparent that this is a convenient means by which this can be achieved. These comments should not be seen to be addressed to the question of the relevance of the documentation or the ultimate weight which should attach to it in terms of the determination of these proceedings. Nevertheless, despite the objections of the respondent, it is convenient that the evidence sought to be tendered and relied upon by the applicant Registrar is admitted.

26 The nature of each of the charges brought against the respondent has been set out, as have the particulars furnished by the applicant Registrar with respect to each of the charges in response to a request made by the respondent.

EVIDENTIARY MATERIAL 27 It is now necessary to discuss the evidence which was put before the Court in terms of each of the charges brought against the respondent.

28 At the outset, the respondent, being the Uniting Church in Australia Property Trust (NSW), denied that it, as an entity, had participated in any way in any of the matters which were alleged by the applicant Registrar to have constituted a contempt. The respondent originally submitted that it employed no one, did not trade or conduct any business and was merely a trustee of certain property. During the course of submissions made on 12 June 2003, Mr L P Robberds QC, who then appeared as counsel for the respondent with Mr Moses, conceded for the purpose of these proceedings that it was the employer of the applicants in the substantive proceedings. In light of the material which was ultimately before the Court, this concession was properly made on behalf of the respondent. In the circumstances, it is no longer necessary to deal with this issue.

29 There was a series of correspondence relied upon by the applicant Registrar in order to establish the alleged contempts. It is appropriate to set out in full the contents of each of the documents: Letter 19 October 2001 from Les McDonald, Executive Director of Uniting Care Ageing & Disability Service, addressed to "Dear Stakeholders": As you know a review has been underway since August into organisation and standards of care issues at Wesley Gardens. The terms of reference were set out clearly in two memos dated 2 August and 7 August and were fully addressed at a staff meeting of 3 August.

The purpose of the review was to resolve issues concerning the management of Kevin Rocks and Wendy Jeskie (both of whom remain employed by Wesley Gardens and are on full pay). Broadly, the intention was to thoroughly examine the financial and organizational issues at Wesley Gardens, to consider issues raised by staff, residents, relatives and other stakeholders, and to discuss them with all concerned including Kevin and Wendy. In this way we hoped to resolve any issues which were discovered so that we could reach a decision on the way forward.

Professor Walker of the University of New South Wales was engaged to conduct a comprehensive financial review of Wesley Gardens, Viv Read of Crosstech was given the task of reviewing organizational matters and Natasha Chadwick of IBIS was asked to prepare a report on care issues.

A lot of work has been done by Professor Walker, Ms Read, and Ms Chadwick. Unfortunately, the intended course of finalizing their reports, presenting them to relevant persons including Kevin and Wendy, and discussing the issues raised, has been interrupted against our will, and it will therefore be necessary to alter the procedure.

On 30 August, Wendy and Kevin commenced legal proceedings alleging "unfairness". We wrote to their lawyers asking that the action be put on hold to enable discussions to take place. Their lawyers declined, and insisted that we lodge a "reply" to their action (in other words, set out a "case"). This meant that our plan to complete the reviews, finalise the drafts and discuss the issues was unacceptable to Kevin and Wendy's lawyers. We again wrote to their lawyers and suggested that they hold off pressing their action until discussions could take place (i.e. the review process). Unfortunately their lawyers then brought an urgent application before the court demanding that we lodge our reply within seven days or lose the right to reply at all. Out (sic) hand has therefore been forced and we have lodged the "reply".

The procedure will therefore have to take a new form as follows:

1. The issues set out in the court documents we have been forced to file, will be converted to letter form, together with additional relevant issues, and referred to lawyers for Kevin and Wendy. 2. Kevin and Wendy will be invited to reply to the issues. If their replies are reasonable and accepted then we will regard the matter as closed.

3. If Wendy and Kevin's replies are unsatisfactory, then the interim Board will have to decide on the appropriate course, in accordance with all principles of procedural fairness.

In order to keep faith with our stakeholders I have had to give this correspondence wider circulation than matters of this type would ordinarily be given. Despite that difficulty, I ask that you maintain discretion on these issues, so that as much confidentiality as possible can be kept regarding this unfortunate matter. If there is any loss of confidentiality, then that is simply because Kevin and Wendy commenced court proceedings and then permitted their lawyers to refuse to place those proceedings on hold pending resolution on the matter by discussions. Please be assured that no one has been pre-judged, that no conclusions have been reached, and will not be, without fair and full discussion.

We did not want it to be conducted this way but believe that we are now proceeding fairly and as discretely (sic) as possible given the circumstances. Letter 23 October 2001 from Betty Anderson, Chairman of the Uniting Care Ageing & Disability Service addressed to each of the applicants in the s 106 proceedings in identical terms:

We refer to our reply to the Summons for Relief filed on Friday, 12 October 2001.

We refer you specifically to the Summary of Additional Matters of Fact and Law upon which the respondents will rely in opposition to your Application. Specifically, we refer you to the matters raised in sub-paragraphs (a) to (t) of paragraph 4 of that Summary.

You are instructed to attend a meeting at the Offices of Uniting Care Ageing & Disability Service ("UC-ADS") on Tuesday, 30 October 2001 at 3.00pm .

The purpose of the meeting is to allow you to give us your reply to the allegations made within the paragraphs referred to above. If the answers given do not constitute credible denials or reasonable explanations, disciplinary action may be implemented which could include the termination of your employment. For that reason, we strongly recommend that you attend the meeting with your legal adviser.

If the time and date for the meeting as advised above are unsuitable, we will consider any reasonable postponement.

Please advise us in writing as soon as possible that you will be attending the meeting as instructed. Letter 26 October 2001 from Richard Lund of Middleton Moore & Bevans Lawyers, to Mr C McArdle of KPMG Legal:

We anticipate filing and serving our Responses to your clients Replies next Monday and expect them to be a full answer to the matters your clients propose interviewing our clients about next Tuesday.

We are confident that you would not wish your clients to be involved in any process that may frustrate the Court's process. There seems to be some potential for this in circumstances where the allegations sought to be advanced in interview are entirely co-incident with the Replies filed in the proceedings.

We respectfully suggest that a more appropriate procedure would be for your clients to consider our Responses and submit any further questions or allegations that your clients may have, in writing, to us at your earliest convenience. Should this procedure not find favour with your clients, our clients would be more than content to consider any alternative.

In the event that we are unable to reach agreement, it may be productive to have the matter re-listed before Her Honour Justice Schmidt. Letter 29 October 2001 from R Lund to C McArdle :

"I enclose, by way of service, Response to Reply to Summons for Relief under Section 106 and Affidavit in Support filed in the Industrial Relations Commission on 29 October 2001."

I refer to my letter of 26 October 2001 and note that I have not received a response. On that basis, I assume that your clients are content with the procedure that we have suggested in our letter of 26 October 2001. Letter 31 October 2001 from C McArdle to R Lund:

Thank you for your letter received 5.00pm on Friday 26 October 2001 and your follow up correspondence received 11am Tuesday 30 October 2001. I was out of the office on Monday 29 October and so did not receive your letter of 26.

As you know appointments were made to interview your clients to give them an opportunity to reply to allegations made in the Reply to the Summons for Relief, for 30 October. Due to what we are now prepared to accept as being a misunderstanding, your clients did not attend for those interviews.

A new time will be proposed by UCADS in further correspondence to Mr Rocks and Ms Jeskie. They should attend those meetings in the same way as they were required to do at the meeting which did not take place. Failure to do so will be regarded as a serious disciplinary issue."

Receipt of your letter of 31 October 2001 is acknowledged.

Enclosed is a further copy of our letter of 26 October 2001. We draw your attention particularly to our concerns that your clients proposed interview of our clients would constitute an abuse of the ordinary court process and our suggested alternative approach that would avoid any such abuse arising.

We note that you seem to have ignored our invitation to deal with the matters as we have suggested, notwithstanding that you were served with our clients filed Replies to your clients Responses on 29 October 2001.

Given the circumstances, if we do not hear from you within 7 days of the date of this letter regarding our suggested approach or if your clients make any further direct approaches to our clients to attend interviews then we will have no alternative but to seek to have the matters re-listed before Her Honour Justice Schmidt with a view to having the court make directions as necessary to prevent abuse of its process. In that event, we will rely on this correspondence on the question of costs on an indemnity basis in any successful application we may make.

We wish to make it perfectly clear that our clients remain ready and willing to comply with any lawful directions by your client. Our clients concern is that your clients current direction is neither lawful or reasonable. Our clients are more than content to have this issue appropriately determined. Letters 1 November 2001 from Betty Anderson to each of the applicants in the s 106 proceedings in identical terms:

I note your failure to attend a meeting yesterday 30 October, 2001, convened with due notice. You did not contact me, either directly or indirectly, to advise that you would not attend.

To preserve the principles of natural justice we are convening a further meeting. The meeting will now take place on Friday 2 November, 2001 at 11am in our offices in meeting room 3, level 5, 222 Pitt Street, Sydney. If that time is unsuitable, we will consider a reasonable alternative on that day.

Should you fail to attend the meeting, or if you fail adequately to reply to the issues raised in the correspondence which convened the meeting of 30 October, you may suffer detriment in your employment, up to and including dismissal. For that reason you are welcome to bring a legal adviser with you to the meeting.

Letter 1 November 2001 from Kevin Rocks to Betty Anderson:

I refer to your letter of 1 November 2001 noting my failure to attend a meeting yesterday at your invitation.

You suggest that I did not make any direct or indirect contact to the effect that I would not be attending the meeting set down for Tuesday. I am upset that you would think that I would be so discourteous as to do that.

Enclosed are copies of letters in regard to the meeting my solicitors sent on my behalf to the solicitors I thought were acting on your behalf. Clearly my solicitors had communicated with your solicitors about my attendance. If I have misunderstood the position between you and your solicitors, would you please let me know.

I would make the point that nobody from UCADS has made any attempt to contact me in over 12 weeks. The only communication has been from your solicitors to my solicitors. Accordingly, I assumed that this was the protocol that you were adopting.

We refer to our letter of 31 October 2001 transmitted to you by facsimile last evening.

Attached are copies of correspondence dated 1 November 2001 from your clients to our clients. Given the contents of that correspondence, it is apparent that your clients were either unaware of our correspondence last evening or have chosen to ignore it.

In the circumstances, we seek an undertaking from your clients that they will take no further steps in relation to any aspects of our clients employment or having any direct contact with them prior to the conciliation set down for 26 November 2001 before Her Honour Justice Schmidt.

We require a response to this correspondence by 5.00pm today. In the event that your clients do not give the appropriate undertaking or we do not hear from you, we will take immediate steps to have the matter re-listed before Her Honour and seek appropriate orders.

Thank you for your letter of this afternoon. I confirm that UCADS were not aware of your letter faxed at 4.40 yesterday when writing to their employees, due to my own unawareness arising from my general absence from my office because of work commitments since about the middle of the day yesterday.

Had they been in fact aware of your letter, they would still have acted to require Mr Rocks and Ms Jeskie to attend their office and answer these serious matters of patient care, corporate governance and financial management. It is absurd to suggest that our clients cannot ask about this or that your clients are not obliged to meet UCADS and reply to such serious matters.

It would be a serious abuse of process of the Commission for you to seek any order for a remedy you have not sought. How would a meeting and possible lawful action resulting from such a meeting interfere with the "balance of convenience" in the light of your clients' claims for two year's pay and payment to age 65?

We assure you, and will assure the Commission if you commence your threatened ill-considered "re-listing", that your clients will be treated fairly and reasonably. This must apply to our client also, however. The interim board have a right to run their facility, and they have a public duty to those in their care. Your clients' rights do not overwhelm those obligations, and in fact must properly be applied in the context of them.

Mr Rocks and Ms Jeskie are expected to keep the appointments specified in their letters of earlier today. Attendance is a "lawful direction", and must be complied with. They are most welcome to be accompanied by you or one of your colleagues.

Letters 2 November 2001 from Ben Skerman for and on behalf of the Board of Wesley Gardens under letterhead of Uniting Care Ageing & Disability Services addressed to each of the applicants in the s 106 proceedings in identical terms :

TERMINATION OF EMPLOYMENT We refer to previous correspondence enclosing matters of concern to which we required a reply. We note that you were warned in those items of correspondence that a failure to attend meetings or a failure to adequately reply to the issues placed before you could result in disciplinary action including dismissal.

We note that through your Lawyers you refused to attend meetings last Tuesday, 30 October 2001 or today. As has been made clear to you, we view your non attendance in itself as disregarding a lawful direction.

Your employment is terminated effective immediately, the reason being your failure to attend meetings as directed, but most importantly failure to adequately reply to the matters raised with you. We must now be left with the assumption that the matters not properly replied to stand as a matter of fact.

We require that you return, within no more than seven days, all property of Wesley Gardens and/or the Uniting Church currently in your possession or control. That includes but is not limited to motor vehicles, computers, credit cards, keys, telephones, all documents files or records. Please contact Mr Alldritt at Wesley Gardens Belrose to arrange a suitable time and place.

All statutory entitlements and any required documents will be forwarded to you in due course.

You are not permitted to visit Wesley Gardens or any of its facilities without the permission of Mr Alldritt (such permission will not be unreasonably withheld).

RELEVANT PRINCIPLES 30 Before considering whether or not the charges brought by the applicant Registrar have been made out, it is necessary to have regard to relevant authorities in this area.

31 It was common ground in these proceedings that the alleged contempt was to be treated as criminal contempt it being alleged there was improper pressure being brought against the applicants in the substantive proceedings. Criminal contempt involves "an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it." (per Lord Diplock in the House of Lords in Attorney-General v Leveller Magazine [1979] AC 440 at 449.) The interference with the administration of justice may take the form of frustration of the attainment of justice either in particular proceedings "or by deterring other people from having recourse to courts of justice in the future for the vindication of their lawful rights or for the enforcement of the criminal law." (per Lord Diplock at 449). There are varying forms of conduct which have been said to constitute contempt. That which has been most commonly dealt with in decided cases has been the publication of material either before or during the course of actual court proceedings. Some of the conduct complained of has been said to be directed to the parties to the proceedings themselves; other conduct has been said to be directed to the court (including jurors) or the public generally. Another major category of contempt is the adverse treatment of witnesses either before or after the trial.

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)

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)

34 It is necessary to refer to one other authority in the context of impact of conduct on a litigant, by way of improper influence. In Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242 Jordan CJ said (at 249-250): It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant. It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant, and whether in relation to the matter which is under discussion or with respect to some other matter.

35 There are a number of other important English authorities which have discussed contempt as well as several important Australian authorities, including decisions of the High Court of Australia. However, the necessity to embark upon a detailed analysis and consideration of the authorities has been obviated because that task has recently been discharged by Mason P in the New South Wales Court of Appeal in Harkianakis v Skalkos (1997) 42 NSWLR 22. Beazley JA agreed with the reasoning of Mason P. Powell JA delivered a separate judgment.

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)

37 I note two further important considerations referred to in Harkianakis, namely, that: If a statement is reasonably capable of more than one meaning and one of those meaning does not involve contempt, a charge based on that statement is … not made out (at 40 where Mason P was quoting from the judgment of Hope JA in Warringah Shire Council v Manly Daily Pty Ltd (NSW Court of Appeal, 27 August 1985, unreported) and, the meaning of the relevant letters in these proceedings has to be determined objectively (at 66 per Powell JA).

38 In view of the fact that the majority of the charges against the respondent are framed by reference to the bringing to bear of unreasonable pressure upon the applicants in the substantive proceeding in the way particularised, it is appropriate to refer to decided cases which have discussed the nature of the pressure required to constitute contempt.

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.

47 It is now appropriate to consider each of the charges brought in these proceedings by reference to the factual material and by reference to the principles set out above. In doing so a fundamental consideration is that where a person is charged with criminal contempt the specific charge against the person must be distinctly stated and the person must be given an opportunity of answering the charge. In Coward v Stapleton (1953) 90 CLR 573 at 579-580 it was said that:

[It] is a well recognised principle of law that no person ought be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him; In re Pollard (1868) LR 2 PC 106 at 120; R v Foster; Ex parte Isaacs [1941] VLR 77 at 81. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott [1909] AC 312 at 315.

48 Coward v Stapleton was applied in Australian Building Construction Employees' and Builders Labourers' Federation & Ors v Minister of State for Industrial Relations & Ors (1982) 43 ALR 189 at 208 and 211. In Attorney-General v Leveller Magazine [1979] AC 440 at 461 Lord Edmund-Davies said a person charged with criminal misconduct including criminal contempt is entitled to know with reasonable precision the basis of the charge.

49 It is convenient, therefore, before dealing with each charge, to again set out the charge and the relevant particulars provided by the applicant Registrar. It will be noted, only the charge in paragraph J of the amended notice of motion does not rely on allegations of improper pressure imposed upon the applicants in the substantive proceedings.

50 Charge F and the relevant particulars were in the following terms: Charge 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. Particulars: On or about 19 October 2001, the Respondents published and circulated a letter to its "Stakeholders". The publication of the letter having regard to its contents, has the tendency to interfere in the administration of justice by influencing a person reading it, against Rocks and Jeskie and thereby place undue pressure upon them by: i. embarrassing Rocks and Jeskie; ii. by placing undue pressure upon Rocks and Jeskie to settle or compromise the proceedings; and iii. by placing undue pressure upon Rocks and Jeskie to withdraw the proceedings. The letter is capable of bearing the following meanings:

i. the references in paragraphs 1 and 2 to: · a review "into organisation and standards of care issues"; · the purpose of the review being to "resolve issues concerning the management of Kevin Rocks and Wendy Jeskie"; and · the examination of "financial and organisational issues" are capable of bearing the implication that Rocks and Jeskie had been engaged in misconduct both financial and managerial. ii. the letter in paragraphs 4 to 9 by stating that: · the financial review having been "interrupted against our will"; and · the lawyers of Rocks and Jeskie declined to put the action on hold and brought an urgent action before the court, thereby forcing the hands of the Respondents, is capable of bearing the implication that in commencing the proceedings, Rocks and Jeskie acted in an unreasonable manner. iii. the letter in paragraphs 4 to 9 by stating the matters in ii. above and by stating that: · the lawyers of Rocks and Jeskie refused to place the proceedings on hold; and · that "We did not want it to be conducted this way" is capable of bearing the implication that in continuing the proceedings, Rocks and Jeskie acted in an unreasonable manner. iv. The language in paragraph 5 is capable of bearing the implication that in continuing the proceedings, the actions of Rocks and Jeskie were unreasonable. v. The language in paragraphs 3 to 5 is capable of bearing the implication that in continuing the proceedings, Rocks and Jeskie were unreasonably delaying the conclusion of the matter. vi. The language in paragraphs 5 to 7 is capable of bearing the implication that in continuing the proceedings, the action by the solicitors was unreasonable.

51 The particulars in Charge F focus on embarrassment of the applicants in the substantive proceedings, and undue pressure being placed upon them to settle, compromise or withdraw the proceedings. The implications which are sought to be drawn extend to engagement in financial and managerial misconduct, and unreasonable conduct in commencing and in continuing the proceedings.

52 In considering whether this charge has been made out it is, as I have said, essential to have regard to the specific allegations contained within the particulars furnished against the context of the letter as a whole. This includes, obviously, the need to take into account other material contained within the letter.

53 It should first be observed that the letter is addressed to "Stakeholders". There is no evidence as to whom it was distributed. It is clear, however, from the second paragraph that staff, residents and relatives were intended to be amongst the stakeholders. It may be accepted that the letter is capable of bearing all of the implications that were asserted in the particulars provided. However, there are other matters contained within the letter which are capable of creating a different impression. The letter makes it clear that both Mr Rocks and Ms Jeskie remained employed on full pay, that allegations raised concerning their management were the subject of investigation and that it was the intention to discuss issues with them before any action was taken. The penultimate paragraph makes it clear that there was intention to engage in discussion before any conclusion was reached concerning any misconduct.

54 The additional complaint levelled against the respondent with respect to this letter relates to alleged disparaging remarks concerning the action of Mr Rocks and Ms Jeskie in instituting and maintaining the substantive proceedings. The result is said to have been an interruption of the processes already in place, together with a need to publicise what had happened with a resultant loss of confidentiality.

55 The authorities which have been considered above make it clear that in order to constitute contempt there must be conduct which extends beyond the bounds of mere criticism and which can be said to constitute public obloquy and derision. Other words used were "intemperate, execration and public ridicule and abuse." Obviously some of these terms are comprehended within others. All of these words express conduct of a particular kind.

56 This letter addressed to the "Stakeholders", in many respects, was no more than a report on the state of play between the parties and an expression of concern and irritation that arrangements could not be reached which would keep the issues out of court. Whilst the language may have expressed resentment at the course adopted by the applicants, it did not involve injurious misrepresentations or abuse of the applicants in the relevant sense.

57 It cannot be said that taken as a whole this letter nor any particular part of it constitutes contempt as contemplated by the authorities to which reference has been made, and this charge should be dismissed.

58 It is convenient to deal with Charges G and H together. Charge G and the relevant particulars were in the following terms: Charge 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. Particulars: 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.

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."

61 Section 109 of the Act requires the conciliation of s 106 proceedings by a member of the Commission and precludes a determination of the proceedings unless all reasonable attempts to settle the matter by conciliation have been made and have been unsuccessful. The Commission is required by s 109(1) to "endeavour, by all means it considers proper and necessary, to settle (s 106 proceedings) by conciliation."

62 Rule 18A requires a respondent to s 106 proceedings to serve a Reply which must be in a specific form and must answer each of the matters raised in the initiating process, specify in summary "any additional matters of fact and law upon which the respondent will rely in opposition to 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."

63 There is then provision in r 18A for the applicant to file a Response to be in a specified form which must answer each of the matters specified in the Reply. There is provision in sub r (6) for matters of fact set out in a Reply and in a Response to be verified by affidavit.

64 In order to consider these charges it is necessary to focus attention on the content and context of the correspondence to which I have referred. It is clear that the letter of 23 October required each of Ms Jeskie and Mr Rocks to attend a meeting to respond to the allegations contained in the Reply document. The letter contained the threat of disciplinary action including termination of employment depending upon the response given to the allegations contained in the Reply. The letter of Mr McArdle, solicitor dated 31 October 2001 repeats the requirement to attend to reply to allegations contained within the Reply documents and asserts that a failure to attend would be regarded "as a serious disciplinary issues." The letters from Ms Anderson of 1 November 2001 repeat that failure to attend the meeting or to adequately reply to the issues may result in each of Ms Jeskie and Mr Rocks suffering "detriment in your employment, up to and including dismissal." The letters of termination of 2 November 2001 give two reasons. The first is said to be the failure to attend the meetings as directed; the second which is said to be "most importantly" is the failure to reply to the matters raised, which must be a reference to the failure to respond to the matters contained within the respondent's Reply document. All of this material is directed to the demand for a response to the respondent's Reply document.

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.

66 The additional factor contained within Charge H which distinguishes it from Charge G is that the respondent indicated in its letter of 1 November 2001 that there may be detrimental consequences for the applicants, including dismissal, if they did not attend the specified meeting. To some extent Charge H and the manner in which it is particularised is covered by particulars (iii) and (iv) of Charge G. Once there has been a finding that Charge G is made out, it follows that the respondent should be found guilty of Charge H. The applicants in the substantive proceedings were required by the conduct of the respondent as particularised to comply with an instruction which was not authorised by any Court order or rule and was framed in a manner which was directed to an integral part of a Court process. Accordingly, this Charge is also made out.

Charge I 67 Charge I and the relevant particulars are as follows: Charge 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 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 Applicant does not allege that "the reason for the dismissing the Applicant" had the tendency to interfere with the due administration of justice but that the actual dismissal did so. The act of dismissing Rocks and Jeskie was calculated to interfere with the due administration of justice in the manner set out in paragraph 8 above (paragraph 8 referred to unreasonable pressure being placed on the applicants to settle, etc., comply with an instruction not authorised by the Court, and to embarrass the applicants).

68 The question that arises out of Charge I is whether the act of dismissal of the two applicants had a tendency to interfere with the due administration of justice by placing unreasonable pressure on them to settle or compromise the proceedings, withdraw the proceedings, force the applicants to comply with any instruction which was not authorised by any Court order and to embarrass the applicants.

69 It seems to me that in dismissing the applicants, the respondent left them with no alternative but to press ahead with their claims. Rather than put pressure on them to settle, compromise or withdraw, dismissal could arguably have produced precisely the opposite effect. There is no evidence that dismissal did put any relevant pressure on the applicants, and there must therefore be reasonable doubt whether this element of the charge has been made out. Moreover, termination of employment did not affect the nature of the relief sought by the applicants in their amended summons. In terms of the final relief available to the applicants their dismissal changed nothing. If the court were to find unfairness it would have been open to the court to grant the relief sought subject only to issues of discretion and jurisdiction.

70 It may have been the case that what the applicants were hopeful of achieving in conciliation was an agreed process to govern the conduct of any investigation to be carried out by the respondent thereby maintaining their employment, at least for the period of the investigation. Having dismissed the applicants, it might be contended that the respondent's conduct in doing so had the requisite tendency to interfere with the administration of justice. The difficulty with this contention is that this is not what the particulars allege. Mr Lakatos conceded that the applicant Registrar was bound by these particulars. Accordingly the applicant cannot succeed on this basis.

71 As to the allegation that dismissal forced the applicants to comply with an instruction which was not authorised by any Court order, I am not certain what instruction the particulars are referring to in the context of this charge. I do not consider the act of dismissal can be described as an "instruction".

72 The difficulty which the Registrar faces in prosecuting this charge is that the correspondence which I have previously considered under Charges G and H was the instrument by which threats of dismissal were made. The actuality of dismissal did not and could not in those circumstances have the impact of placing unreasonable pressure on the applicants in the manner particularised. There is no suggestion that viewed objectively any unreasonable pressure was placed upon the applicants to do or refrain from doing any of the matters referred to in the particulars by reason of the actual dismissal for failing to attend to answer the allegations. As particularised Charge I must fail and should be dismissed.

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.

75 The reason given by the respondent in its letters of 2 November 2001 for dismissing the applicants was their failure to attend meetings and their "failure to adequately reply to matters raised with you." There was no evidence contradicting the reason expressed by the respondent for dismissing the applicants, and no evidence that the applicants were dismissed because they had indicated that they were approaching the Industrial Relations Commission for orders. There is in my opinion no evidence that supports a conclusion that the applicants were dismissed for the reason alleged in the charge. On this basis alone this charge must fail.

76 The evidence supports the proposition that the respondent was acting to protect its interests. As the solicitor for the respondent said in his email message to the applicants' solicitor on 1 November 2001, the applicants were required to attend the meeting the following day to answer questions relating to "serious matters of patient care, corporate governance and financial management". The email said: "The interim board have a right to run their facility, and they have a public duty to those in their care".

77 In this respect, an analogy can be drawn with the circumstances in Webster v Bakewell Rural District Council [1916] 1 Ch 300. The headnote states: The yearly tenant of a cottage and land, adjoining a highway and forming part of a settled estate, issued a writ against the local authority for an injunction to restrain an alleged trespass on his land. The solicitor of the tenant for life of the estate, wrote to the local authority with a view to arrange the matter, and at the same time wrote to the tenant that the tenant for life required him to withdraw the writ, and that, if he did not comply, his tenancy would be determined. On motion by the tenant to commit the solicitor for contempt of Court for sending him letters calculated to deter him from prosecuting the action and to prevent the administration of justice: Held, that the solicitor had not committed a contempt of Court.

78 Neville J considered that both the solicitor and the life tenant had acted lawfully by threatening that the tenancy would be terminated. After referring to the correspondence, Neville J said at 303: The question is, is that a contempt of Court? …I must say I cannot think that can be considered a contempt of Court. The object of turning him out of the cottage would be to deprive him of legal standing to maintain his action and to resume possession of the property in respect of which he is suing … A weekly tenancy could be determined before any action in respect of the property could be tried, and I cannot see there is anything to prevent a landlord exercising his legal rights in that way, if he does it honestly to protect the rights he has in the property.

79 Catalfamo v Hersfield Holdings Pty Ltd (1981) 52 FLR 343 concerned proceedings taken by a number of lessees of a shopping complex against the lessor claiming damages under s 82 of the Trade Practices Act and claiming an order for variation of the leases. Notwithstanding the continuation of those proceedings the lessor forcibly entered the shops, emptied them and rendered them unusable by the lessees. Proceedings were commenced seeking, inter alia, orders for contempt. Northrop J rejected the proceedings based on contempt. In his Honour's opinion the mere commencement of proceedings in the Federal Court did not and could not operate as an order precluding the respondents from doing anything which would adversely affect the subject matter of those proceedings. His Honour concluded: In my opinion the conduct of the respondents was not intended, nor was it likely, to interfere with or obstruct the fair administration of justice. The respondents have taken risks. They have been warned of the risks involved in exercising a forcible entry. They may have committed a criminal offence. If the leases had not been validly terminated in all probability they would be liable to pay exemplary or punitive damages to the applicants. …. The powers and authorities of the Court have not been affected by the conduct of the respondents. …. I am not satisfied that the respondents or any of them have committed a contempt of court …. (at 364).

80 In the present case it is contended that the respondent did affect the "powers and authorities of the Court" by depriving it of the ability to make orders that it might have thought appropriate in all the circumstances. The final orders available to the Court are limited to the avoidance or variation of the contract found to be unfair and the awarding of just compensation. Therefore the orders which could have been affected as alleged were arguably confined to orders of an interlocutory nature (e.g., maintaining the employment until conciliation had occurred). The Court would not have otherwise been deprived of the opportunity to make those orders sought in the applicants' summons which could properly have been made under s 106 as final orders.

81 In relation to any interlocutory order that the court might have considered appropriate, the applicants were aware from the email sent by the respondent's lawyer on 1 November 2001 that the respondent was continuing to insist on the attendance of the applicants at the meeting scheduled for 11.00 am the following day. Thus, on 1 November the applicants' lawyers were on notice that the respondent intended to press ahead the next day with having the meeting and that if the applicants did not attend there was the prospect of dismissal. It was, therefore, open to the applicants to seek an urgent hearing and pursue any interlocutory orders they considered appropriate.

82 Moreover, by the respondent's action in signalling its intentions the day prior to the scheduled meeting, including the prospect of dismissing the applicants, it does not seem to me that it can be successfully contended the respondent dismissed the applicants because they indicated that they were approaching the Industrial Relations Commission for orders. Nor do I consider that, in the circumstances, the respondent's conduct could be said to have had a tendency to interfere with the due administration of justice as particularised. Accordingly, Charge J must fail for these reasons also.

83 I would make the following orders: 1. The respondent is found guilty of Charges G and H. 2. Each of the remaining charges is dismissed. 3. The proceedings are stood over to enable submissions to be made on penalty. 4. Costs are reserved. 5. Liberty to apply.

84 BOLAND J: I have had the opportunity of reading the draft judgments of both Marks J and Haylen J. Whilst I agree with the conclusions of Marks J in relation to charges F, I and J where his Honour concluded the those charges should be dismissed, I respectfully disagree with his Honour's conclusions regarding charges G and H in respect of which his Honour found the respondent guilty. I also, with respect, disagree with Haylen J in relation to his approach and conclusions in charges G, H, I and J where his Honour found the respondent guilty.

85 Given the conclusions of the other two members of the Full Bench it becomes necessary for me to state my reasons for arriving at the conclusion that charges G and H should be dismissed. Because the charges are very similar I will deal with charges G and H together.

86 In relation to charge G a declaration is sought that the respondent is guilty of contempt because it required the applicants to attend a meeting to answer allegations made in the respondent's Reply to the applicants' summons for relief and that thereby the respondent acted in a manner "which had a tendency to interfere with the administration of justice …" The particulars of the charge alleged that: in directing the applicants to attend a meeting; compelling them to answer certain allegations in the Reply; threatening detriment if credible denials and reasonable explanations were not given to the allegations; and, indicating failure to attend the meeting would constitute a serious disciplinary issue, the respondent 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.

87 Charge H alleged the respondent threatened Rocks and Jeskie with detriment if they failed to answer allegations made in the Reply to the summons for relief. It was alleged in the particulars of charge H that 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.

88 It may be noted that in charge G the Registrar uses the term "tendency to interfere with the administration of justice" whereas in the particulars the phrase used is "calculated to interfere with the administration of justice". I do not think much turns on this. In any event, the test I have applied is, in the absence of any evidence that the respondent intended to interfere with the administration of justice, whether to the criminal standard the respondent's impugned conduct had, as a matter of practical reality, a real and definite tendency to interfere with the course of justice: John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372; Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15 at 34; Victoria v The Australian Building Construction Employees' and Builders' Labourers' Federation (1982) 152 CLR 25 at 56. Importantly, as Wilson J observed in Victoria v The Australian Building Construction Employees' and Builders' Labourers' Federation at 133, "The jurisdiction to deal with contempt is one which is to be exercised with great caution."

89 Turning to the present proceedings, I consider the respondent's conduct was most inappropriate and ill advised in light of the imminent conciliation proceedings before a Member of the Commission. As Mason P said in Harkianakis, contempt involves the interference in a litigant's freedom to conduct litigation as he or she chooses and settlement of litigation (such as via the means of conciliation provided for in s 109 of the Act) was as much an aspect of the curial process as "combat to the bitter end". Accordingly, there is some attraction to the contention that in demanding the applicants attend a meeting to explain allegations filed in a court document that was to be the subject of proceedings before the Court, this amounted to usurpation of the Court's role and, therefore, contempt.

90 In the present case, however, it is not sufficient to inquire whether the respondent's conduct in some way had a tendency to interfere with the administration of justice. The particulars define the scope of the charge. The charge, when taken in conjunction with the particulars, defines the impugned conduct and also defines the manner in which it is alleged the conduct had the tendency to interfere with the administration of justice. It is that charge, the ambit of which is limited by the particulars, which the respondent has been called upon to meet. It is to be noted that Mr Lakatos for the Registrar conceded that there was no allegation in the charge or the accompanying particulars that the conduct complained of impacted on the ability of the Court to determine the issue between the parties. He agreed with the Court that the particulars as they were framed were confined to the placing of unreasonable pressure on the two applicants.

91 I have come to the conclusion, when regard is had to the particulars of Charges G and H that, as a matter of practical reality, the respondent's conduct did not have a real and definite tendency to interfere with the course of justice. The applicants, as employees of the respondent, were directed to attend a meeting, with their legal advisors if they chose, to answer certain allegations set out in the respondent's Reply to the applicants' summons for relief under threat that failure to do so could be detrimental to the applicants. I consider that the respondent's reference to its Reply was merely a convenient way of identifying the allegations against the applicants for the purpose of the proposed meeting that was called in the context of the employer/employee relationship and not for the purpose of usurping the Court's role in conciliation proceedings. In this respect, the letter from Mr Lund of 31 October 2001 asserted that the respondent as employer had neither a lawful nor reasonable right to compel the applicants to attend the meeting and furnish the explanations required. The e-mail letter from Mr McArdle to Mr Lund dated 1 November 2001 made it clear, in my opinion, that the requirement imposed on the applicants arose out of and was associated with the employment situation independently of the court processes. In the context of the subsisting employment relationship, the direction to the applicants to attend a meeting to answer allegations regarding conduct engaged in during the course of their employment was, in my opinion, a lawful direction.

92 The first two elements in the particulars in both charge G and H were that the respondent's impugned conduct had the effect of placing unreasonable pressure on the applicants to settle or compromise the proceedings against the respondent and to withdraw the proceedings. That is, in essence, it was alleged that by insisting on the applicants attending a meeting and answering allegations made against them under threat that if they failed to do so their employment would be put at risk, the applicants were placed under unreasonable pressure to settle or compromise and withdraw. In determining whether this amounted to criminal contempt the question is whether, as a matter of practical reality, the conduct complained of amounted to unreasonable pressure to induce the applicants to settle or compromise and withdraw from proceedings.

93 I fail to see how a direction to attend a meeting and answer allegations under the threat of possible dismissal would, in any practical sense, have had the requisite tendency. Firstly, it needs to be said there was no evidence of any unreasonable pressure. Secondly, it is most unlikely, in my opinion, that a litigant of ordinary fortitude or, in this case, litigants being closely advised by an experienced solicitor would, on being directed to attend a meeting to answer allegations under threat of possible dismissal, have reacted by feeling under pressure to settle or compromise and withdraw their claims against the respondent.

94 What I'm being asked to accept is that the conduct complained of had the tendency to cause unreasonable pressure to be placed on the applicants to, in effect, abandon the proceedings in order to avoid putting their employment at risk in circumstances where there was no certainty that by doing so they would, in fact, save their jobs. I find it difficult to accept that a person who is informed that his or her continuing employment is at significant risk would feel under any pressure, let alone unreasonable pressure, to abandon proceedings that may provide a remedy in the event the employer acts to the employee's detriment, prior to knowing whether or not the detriment was to be a reality.

95 The third element in the particulars was that the respondent's impugned conduct had the effect of placing unreasonable pressure on the applicants to force them to comply with an instruction that was not authorised by any Court order. The first observation I would make about this aspect of the particulars is that it was not necessary for any meeting between the applicants and the respondent to be sanctioned by the Court; the fact that there were proceedings on foot did not constitute an injunction against the taking place of any meeting between the applicants and the respondent. It may have been that the meeting would have resolved the matter saving the Court and the parties the time and expense associated with conciliation proceedings.

96 It was argued that it was unnecessary to direct the attendance of the applicants when both had been suspended and, therefore, were not in a position to alter the state of affairs. The inference that might be said to be drawn from such a submission is that if attendance at the meeting to answer allegations was unnecessary, the respondent's intention must have been either to cut across or usurp the Court's function by requiring the applicants to answer allegations that had, by this time, been put in issue in proceedings before the Court and which were scheduled to be dealt with in a few weeks in conciliation proceedings. There was no evidence of any such intention by the respondent but, of course, in contempt proceedings it is only necessary to show that the conduct complained of had the requisite tendency.

97 The inference described above was neither part of the charges nor the particulars. Nor was it part of any submission put by counsel for the Registrar, probably because of counsel's concession it was not part of the Registrar's case that the respondent's conduct impacted on the ability of the Court to determine the issues between the parties. Moreover, I note from Mr McArdle's email of 1 November 2001 that the respondent considered that it was necessary to have the meeting with the applicants because of its concern over the seriousness of the allegations, its right to run its facility and its "public duty" to those in its care and that there was no evidence to the contrary.

98 The alternative interpretation that might be applied to this aspect of the particulars, and which appears from the oral submissions of counsel for the Registrar to be the case, is that the direction to the applicants in the letters of 23 October and I November 2001 from Ms Anderson to the applicants to attend the meeting and answers allegations set out in the respondent's Reply under threat of possible termination, placed unreasonable pressure on the applicants to the extent they felt they were having to fight on two fronts. That is, they had initiated court proceedings against the respondent and whilst those proceedings were on foot the respondent had initiated a parallel process, not authorised by the Court, requiring the applicants to answer the very same allegations that were before the Court. The inference appears to be - because it was not articulated in terms - that this action by the respondent brought unreasonable pressure to bear on the applicants to choose which forum to deal with the allegations and thereby this had the requisite tendency to interfere with the course of justice.

99 In Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496, on notice of motion the respondents charged that the applicant was guilty of contempt by virtue, inter alia, of the contents of a letter from the applicant to a member of the public, one Karan. Karan passed the letter on to the respondents. The letter outlined the background to proceedings involving the applicant and the respondents and the applicant's complaints against the respondents and others. In the course of the letter the applicant made a number of disparaging remarks, including: (a) vilifying a District Court judge in his capacity as a presiding member of a tribunal which had previously made a determination unfavourable to the applicant; (b) referring to the said tribunal as a "kangaroo tribunal" and the presiding judge as "biased and rude" and "a menace to society … [who] should be removed from office"; (c) referring to the legal profession and one of the respondents in virulent terms, including accusing the latter of acting, inter alia, in an unconscionable arrogant and negligent manner towards the applicant and others.

100 O'Loughlin J held in that the letter did have a tendency to inhibit the respondent from defending the proceedings whether fully or at all or by forcing it to submit to an unsatisfactory compromise, the conduct of the applicant in composing and forwarding the letter had a tendency to interfere with the due administration of justice such as to amount to contempt of court.

101 At 506 O'Loughlin J said: The composition of his letter shows a mixture of arrogance and ignorance. Secondly, it is his arrogance that I find so disturbing; he is prepared to condemn anyone who does not share his views or respond to his complaints. Thirdly, I do not think the subject of contempt of court occurred to him when he wrote that letter; his objective was to denigrate the company in the eyes of the reader of the letter. His insular thinking would not have extended to the likely adverse consequences that could flow from the letter. It was not his intention to prevent [the respondent] from defending these proceedings: rather he was intent on finding more ammunition with which to carry on his fight against the company. On the other hand, however, the contents of the letter, particularly the display of viciousness towards authority, would have constituted a real risk that a litigant might have been dissuaded from properly prosecuting his defence to the proceedings that Mr Willshire-Smith had instituted [my emphasis].

102 In Bhagat v Global Custodians Limited [2002] NSWCA 160, an appeal from a judgment of Young J where his Honour found contempt, the Court of Appeal was concerned with whether letters written by the appellant to litigants in proceedings in which the appellant was involved amounted to contempt. The issue for consideration was whether, in the context of contempt proceedings, the letters constituted improper pressure on the litigants such as to have a tendency to interfere with the administration of justice by dissuading them from continuing with the litigation.

103 In considering whether there was contempt Spigelman CJ said: 35 A range of general principles applicable in the case of contempt by improper pressure on a party is set out in the judgment of Mason P in Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27-30. The present is a case of that character. Of course the characterisation of improper pressure begs the relevant question as to what kind of pressure is "improper". 36 As Lord Cross of Chelsea said in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 326: "To seek to dissuade a litigant from prosecuting or defending proceedings by threats of unlawful action, by abuse, by misrepresentation of the nature of the proceedings or the circumstances out of which they arose and such like, is no doubt a contempt of court; but if the writer states the facts fairly and accurately, and expresses his view in temperate language the fact that the publication may bring pressure - possibly great pressure - to bear on the litigant should not make it a contempt of court." 37 As Mason P said in Harkianakis at 30:

"In punishing certain types of interference with litigants, the law is concerned to distinguish between proper and improper pressure ... This is because the litigant's freedom to conduct litigation as he or she chooses is not an absolute one. The distinction between proper and improper pressure is also encountered in restitution and contract law with their categories of economic duress ... 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. Were it otherwise, a threat to report a legal practitioner to a professional disciplinary body ... or to commence a prosecution ... could not constitute a contempt. Yet it clearly may." (See also Borrie and Lowe, The Law of Contempt, 3rd ed (1996) Butterworths, at 442; Arlidge, Eadie and Smith On Contempt, 2nd ed (1999) London, Sweet & Maxwell, esp at pars 11-261 to 11-278.) 38 Whether or not the pressure sought to be applied in a particular case can be described as "improper" depends on all of the circumstances of the case. The various statements in the letters in these proceedings must be read in the whole context.

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.

105 In dismissing the appeal Spigelman CJ, with whom Ipp AJA and Brownie AJA agreed, said: 50 In the present case, the very thrust of the pressure was to dissuade a party from continuing with litigation by undermining whatever sense of security that person had acquired from the undertaking of another to protect them in a material respect. Where such pressure is accompanied by threats and false allegations, in my opinion, it is permissible to take into account the vulnerability of the recipients when determining whether the pressure was improper. 51 In my opinion, the pressure applied by the letter was improper pressure in the requisite sense. The combined effect of the false assertions, the tone of the threats and the vulnerability of the recipients was, in my opinion, such as to render the pressure to desist from litigation improper. Accordingly, the letter constituted a contempt.

106 The letters of 23 October and 1 November 2001 from the respondent to the applicants in the present proceedings contained none of the viciousness referred to in Willshire-Smith and the thrust of the letters was not to dissuade the applicants from continuing with their litigation as was the case in Bhagat. Neither were there any false assertions, although there was clearly an implied threat of dismissal from employment if the applicant did not attend and provide satisfactory answers to the allegations that had been made against them.

107 Even if the letters had raised in the minds of the applicants the question of whether they should attend the meeting to answer allegations rather than pursue their application under s 106, and, indeed, even if the letters had placed some pressure on them in that regard, I do not consider they placed unreasonable pressure on the applicants to choose between the meeting and the proceedings before the Commission. The was no suggestion whatsoever in the letters that the applicants should desist from the litigation path; the respondent's solicitor sought to make it clear that the meeting was called in the context of the employment relationship out of concern by the employer at the seriousness of the allegations against the applicants.

108 Moreover, in considering whether the pressure was unreasonable, regard should be had to the particular circumstances. The applicants were obviously concerned that the respondent had already taken action that they regarded as unfair and were fearful that the course embarked upon by the respondent might lead to the termination of their employment. Hence the applicants applied under s 106 of the Act to, inter alia, vary their employment contracts to provide for a procedure by which they would be dealt with fairly in relation to the allegations against them and that their employment was not to be terminated unless they had been given two years' notice in writing or been paid an equivalent amount of remuneration. Having taken the step of applying for relief under s 106 it would be most unlikely that the letters of 23 October and 1 November 2001 would have created such a degree of pressure on the applicants that they would have felt the need to make a choice between attending the meeting or pursuing their legal remedy.

109 It is clear from the nature of the relief sought that prior to receiving the letters the applicants were concerned that events might lead to their employment being terminated and if that was to be the case the applicants wanted some protection in that respect. The letters of 23 October and 1 November 2001 served to reinforce the prospect of termination. In those circumstances I could not be satisfied that on receipt of the letters the applicants would have even contemplated whether they should choose between attending the meeting or pursuing their legal remedy; there would have been no rationale basis upon which such a choice would have arisen.

110 The fourth element in the particulars relating to charges G and H was that the letters were calculated to interfere with the administration of justice by placing unreasonable pressure on Rocks and Jeskie to embarrass them. Mere embarrassment of the applicants would not have a tendency to interfere with the course of justice. I presume that by alleging embarrassment it is alleged this would have led the applicants to drop their claims under s 106 or to come to some unsatisfactory compromise. There was no elucidation of this element of the particulars in the submissions of counsel for the Registrar and I do not consider it has any substance. If the applicants were to experience any embarrassment it would have been felt before the receipt of the letters of 23 October and 1 November 2001. Even if those letters did put pressure on the applicants by causing further embarrassment, for the reasons I have already given in relation to the first three elements of the particulars, I do not consider that the pressure was unreasonable or that as a matter of practical reality it had a tendency to interfere with the administration of justice.

111 I do not consider any of particulars in relation to charge G or charge H have been made out beyond reasonable doubt. I would dismiss the charges.

ORDERS 112 I would make the following orders in relation to charges F, G, H, I and J: 1. The charges are dismissed. 2. Costs are reserved.

113 HAYLEN J: See separate judgment [2003] NSWIRComm 388 ________________________________________

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.